Appellants' Supplemental Brief on Mootness — Donovan v. Biden (9th Cir.) (9th Cir.)

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8201 164th Ave. NE, Suite 200 
Redmond, WA 98052 
113 Woodin Avenue, Suite 200 
 
 
 
 
 
Chelan, WA 98816 (non-service address) 
 
 
 
Arnold & Jacobowitz PLLC 
 
Via CM/ECF Electronic Filing System 
 
May 12, 2023 
 
Molly C. Dwyer, Clerk of the Court 
Ninth Circuit Court of Appeals 
 
Re: 
David Donovan, et al., v. Brian Vance, et al., Case No. 22-35474 
 
Appellants’ Supplemental Brief Regarding Potential Mootness 
 
Dear Clerk: 
 
The matter is not moot; it remains a live case and controversy, 
notwithstanding Appellee President Joseph R. Biden’s declaration that the 
nationwide COVID-19 state of emergency will terminate on May 11, 2023. The 
Supreme Court has stated that: 
even if the government withdraws or modifies a COVID 
restriction in the course of litigation, that does not 
necessarily moot the case. And so long as a case is not 
moot, litigants otherwise entitled to emergency injunctive 
relief remain entitled to such relief where the applicants 
‘remain under a constant threat’ that government officials 
will use their power to reinstate the challenged restrictions. 
 
Tandon v. Newsom, 141 S. Ct. 1294, 1297, 209 L. Ed. 2d 355, 358 (2021) 
(citing Roman Catholic Diocese, 141 S. Ct. 63, 68, 208 L. Ed. 2d 206 (2020)). 
Because Appellants remain at risk of negative employment action, including and up 
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to termination, and because the violation of individual religious rights is a 
compensable injury, Appellants remain entitled to have the case heard, including 
their request for relief. Additionally, neither the recent decision from the three- panel 
of this Circuit nor the pending application for vacation of that decision impact the 
live nature of this matter.1 
Appellees have not relinquished their emergency authority but have insisted 
for the past three years that new threats, such as new COVID-19 variants, remain on 
the horizon, and have maintained the Executive Orders (EO), 14042 and 14043, 
challenged herein. Appellees have sought to moot Appellants’ claims for 
discrimination by: (1) stating that they have not enforced the EOs against Appellants 
(Appellees Br. 11, Dkt. No. 28 (citing 2-ER-151 – 52)); and (2) citing the President’s 
declaration that the COVID-19 state of emergency will terminate on May 11, 2023.2 
 
1 Appellants offer awareness of two related, but not controlling matters, as 
follows: (1) the three-judge panel in this Circuit in Mayes v. Biden, No. 22-15518 
(9th Cir., April 19, 2023) recently dissolved the District Court of Arizona’s 
permanent injunction on Executive Order 14042 on other grounds (primarily the 
Federal Procurement Act); and (2) the Emergency Application filed to Justice Kagan 
of the United States Supreme Court to vacate the stay issued in Mayes v. Biden. See: 
Fifty Sixth Arizona Legislature v. Biden (April 25, 2023).  
 
2 Executive Office of the President, Office of Management and Budget. Statement 
of Administrative Policy, HR 382 and H.J. Res. 7, January 30, 2023. Available at: 
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Nonetheless, no Appellee, including President Joseph R. Biden, the lone 
person in the United State of America with authority to rescind an Executive Order, 
has taken action to rescind the challenged EOs. Until the challenged EOs are 
rescinded, Appellants remain at risk of further violation of their religious rights and 
risk loss of employment for exercising the same. Moreover, as the United States 
Supreme Court has long held “[t]he loss of First Amendment freedoms, for even 
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. 
Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690, 49 L. Ed. 2d 547, 565 (1976); see 
also TGP Communs., Ltd. Liab. Co. v. Sellers, No. 22-16826, 2022 U.S. App. LEXIS 
33641, at *14-15 (9th Cir. Dec. 5, 2022) citing Elrod for said premise. Appellants’ 
religious rights have been violated and continue to be violated, through Appellees’ 
conditioning continued employment on receipt of a vaccine that violates their 
religious beliefs, leaving the case ripe. 
The Court should reach the merits of Appellants’ claims and hold that 
Appellees violated the Constitution and Appellants’ protected religious liberties 
through the adoption and implementation of EOs 14042 and 14043, mandating that 
 
https://www.whitehouse.gov/wp-content/uploads/2023/01/SAP-H.R.-382-H.J.-
Res.-7.pdf. Last accessed: May 9, 2023. 
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Appellants obtain a COVID-19 vaccination for continued employment with the 
United States, directly or indirectly. 
A. The Matter Before the Court Remains Live. 
A live controversy exists for which this Court can provide relief. Not only has 
Appellee Biden not rescinded the challenged EOs, but he has not indicated any such 
termination will be forthcoming. Importantly, here, while the Executive Orders, 
were promulgated under the COVID-19 state of emergency, they were not 
authorized because of the emergency, nor were they tied to the emergency itself. 
Rather the vaccination mandates promulgated under the guise of contracting 
efficiency (EO 14042, § 1) and health and safety of the federal workforce (EO 
14043, § 1). Those concerns remain, or should remain constant for the United States 
government, whether in or out of a global pandemic. Importantly, Appellees retain 
an unknown – and unknowable to Appellants or the Court without further fact 
finding – ability to continue to discriminate against the “unvaccinated” population 
(including Plaintiffs) in their workplace, as they have done since the promulgation 
of the challenged Executive Orders. Since promulgation, the President could have 
rescinded the Executive Orders, but he has not.  Appellees have claimed that the fact 
that the Executive Orders have not been enforced as a saving grace, but it is not. The 
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EOs, themselves, are discriminatory and have harmed Appellants. For those reasons, 
the matter remains ripe and Appellees cannot do away with this matter because of 
the voluntary cessation and the capable-of- repetition-yet-evading-review legal 
exceptions to mootness. 
1. 
“Voluntary Cessation” does not Moot the Matter. 
A case does not become moot until “‘the issues presented are no longer ‘live’ 
or the parties lack a legally cognizable interest in the outcome.’” Murphy v. Hunt, 
455 U.S. 478, 481, 102 S. Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982) (quoting United 
States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S. Ct. 1202, 1208, 63 L. 
Ed. 2d 479 (1980)). So long as the court retains the ability to “fashion some form of 
meaningful relief, then that is sufficient to prevent th[e] case from being moot.” 
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12-13 (1992); and see 
Chafin v. Chafin, 568 U.S. 165, 173 (2013) (“As long as parties have concrete 
interest, however small, in outcome of litigation, case is not ‘moot.’”); Mission 
Product Holdings, Inc. v. Tempnology, L.L.C., 139 S. Ct. 1652, 1660 (2019) 
(“Claims for money damages, if at all plausible, ensure a live controversy; for better 
or worse, nothing shows a continuing stake in a dispute’s outcome as a demand for 
dollars and cents. U.S. Const. art. 3, § 2, cl. 1”). “If [plaintiff] is entitled to collect 
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damages in the event that it succeeds on the merits, the case does not become moot 
even though declaratory and injunctive relief are no longer of any use.” McQuillion 
v. Schwarzenegger, 369 F.3d 1091, 1095-96 (9th Cir. 2004) (citing Z Channel Ltd. 
P’ship v. Home Box Office, Inc., 931 F.2d 1338, 1341 (9th Cir. 1991)). Finally, when 
the government asserts mootness, it bears a “heavy burden of showing that the 
challenged conduct cannot reasonably be expected to start up again.” Rosebrock v. 
Mathis, 745 F.3d 963, 971 (9th Cir. 2014). And if it is not “absolutely clear,” courts 
may grant appropriate relief to prevent the defendant from returning to his old ways. 
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 
189 (2000). In sum, this Court has also “long held that there is a strong public interest 
in the court’s resolving important precedential issues, a public interest that militates 
against a finding of mootness in cases presenting such issues” leaving the Court 
“careful not to preclude effective judicial review of conduct that is arguably 
unconstitutional unless it is abundantly clear that such a result is required.” Armster 
v. U.S. Dist. Ct. for Cent. Dist. of California, 806 F.2d 1347, 1360 (9th Cir. 1986). 
Here, the Court can issue relief, the relief requested by Plaintiffs nearly two 
years ago: enjoin Defendants from action, issue damages for the discriminatory 
treatment Plaintiffs have suffered at the hands of Defendants, or the Court could 
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remand the matter to the lower court for additional fact finding to allow Plaintiffs to 
support such claims. Regardless, Defendant Biden’s termination of the COVID-19 
state of emergency offers no support for the position that the Executive Orders have 
been terminated as they are not tied explicitly to the declaration of the Emergency.  
2. 
This Matter is “Capable of Repetition” as COVID-19 still exists 
within the United States although it is allegedly more manageable 
with advancements of vaccines. 
“The Supreme Court has repeatedly found pandemic restrictions capable of 
repetition.” Brach v. Newsom, 38 F.4th 6, 16 (9th Cir. 2022). 
This Court has jurisdiction over an appeal where “(1) the challenged action is 
in its duration too short to be fully litigated prior to its cessation or expiration, and 
(2) there is a reasonable expectation that the same complaining party will be 
subjected to the same action again.” Turner v. Rogers, 564 U.S. 431, 439–40 (2011); 
see also Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 774, 786 (9th Cir. 2012) 
(“[I]f a particular plaintiff is likely to suffer the same or very similar harm at the 
hands of the same defendant,” then that defendant “should not be permitted to escape 
responsibility”). Both elements exist. This Court has held that the exception to 
mootness as “a period of two years” is often “too short to complete judicial review 
of the lawfulness” of government action, and therefore a case, as is this case, that is 
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completed in less than two years, meets the exception. Kingdomware Technologies, 
Inc. v. United States, 579 U.S. 162, 170 (2016) (citing S. Pac. Terminal Co. v. ICC, 
219 U.S. 498, 514-16 (1911)). In such cases, “plaintiff need not show that there is a 
‘demonstrated probability’ that the dispute will recur…[but] whether the 
controversy was capable of repetition and not…that a recurrence of the dispute was 
more probable than not.” Honig v. Doe, 484 U.S. 305, 318 n.6, 108 S. Ct. 592 (1988) 
(emphasis in original).  
Here, Appellants filed a case challenging the EOs within months of their 
adoption as the EOs were adopted in September 2021 and Appellants filed the case 
with the lower court in November of 2021. Judge Rice, below, denied Appellants’ 
request for injunctive and declaratory relief in December 2021 and ordered dismissal 
on the matter in May 2022 with no evidentiary hearing or other discovery 
opportunity. Additionally, over a period of three years the COVID-19 pandemic has 
shifted, although the Executive Orders have not; they’ve remained a fixture of the 
federal government since their adoption nearly two years ago. Moreover, COVID-
19 has been managed, not eradicated, and the federal government has offered no 
work of reassurance that the EOs, or something similar would not be enacted in an 
uptick of COVID-19 cases. Thus, the challenged EOs remain capable of repetition. 
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B. 
Appellants’ RFRA Claims Remain Live.  
 
Appellants suffered a RFRA violation due to Appellees’ sham religious 
accommodation process for which Congress explicitly created a cognizable right of 
action in a district court, 42 U.S.C. § 2000bb-1(c), which may award damages under 
Tanzin v. Tanvir, 141 S. Ct. 486 (2020). Appellants pleaded these RFRA violations 
and seek damages in their complaint. See 2-ER-096, 098 – 99, 119. Appellants have 
submitted evidence showing that Appellees’ religious accommodation process was 
a sham with the overwhelming majority of Plaintiffs having received a religious 
exemption with no accommodation. See 2-ER-032 – 096.  Several Appellants aver 
that no individual assessment was completed in response to their request for COVID-
19 vaccine religious accommodations, and Appellants’ proffered evidence strongly 
supports this claim. See, generally Id. Appellants therefore have a right to have their 
RFRA claims heard and adjudicated to establish an award of damages for the entire 
set of Appellants who endured systemic violations of their First Amendment rights 
and as a result of the violations of RFRA. This alone defeats mootness and is 
sufficient to deny the Appellees’ motion to dismiss. Finally, “a lawsuit – or an 
individual claim – becomes moot when a plaintiff actually receives all of the relief 
he or she could receive on the claim through further litigation.” Chen v. Allstate Ins. 
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Co., 819 F.3d 1136, 1144 (9th Cir. 2016). Here, Appellants have received no relief 
as the matter was quickly dismissed with prejudice. Moreover, as Appellants seek 
nominal damages, as available through RFRA, such a claim prevents dismissal on 
mootness: “[a]s a general matter, ‘[a] live claim for nominal damages will prevent a 
dismissal for mootness.”  Altman v. Cnty. of Santa Clara, No. 21-15602, 2022 U.S. 
App. LEXIS 35413, at *5-6 (9th Cir. Dec. 22, 2022) (citing Bernhardt v. Cnty. of 
Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002)); see also Uzuegbunam v. 
Preczewski, 141 S. Ct. 792, 801-02, 209 L. Ed. 2d 94 (2021) (holding that nominal 
damages “satisf[y] the redressability element of standing” when a plaintiff's other 
prayers for relief fail). 
Here, all but a few of the 314 Appellants sought an exemption from the 
vaccine mandate based on their sincere religious beliefs, and nearly all of those 
exemptions were nominally granted, albeit without accommodation, confirming that 
the Appellants had established the existence of a religious belief which would be 
burdened by accepting vaccination.  See 2-ER-31–93.  Simply put, “Appellants had 
suffered irreparable harm from being coerced into ‘a choice between their job(s) and 
their jab(s),’ BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021), or 
‘between their beliefs and their benefits,’ Sambrano, 19 F.4th at 841 (Ho, J., 
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dissenting).” Sambrano v. United Airlines, Inc., 21-11159, 2022 WL 486610, at *8 
(5th Cir. Feb. 17, 2022). Such a choice violates the protections afforded by RFRA: 
“Government shall not substantially burden a person’s exercise of religion even if 
the burden results from a rule of general applicability, except as provided in 
subsection (b).” 42 U.S.C. § 2000bb-1(a). RFRA does not offer the Government (or 
this Court) the power to evaluate the person’s religious exercise.  This was made 
clear by the Supreme Court in Burwell v. Hobby Lobby, where the Court held that 
an inquiry into the “whether the religious belief asserted in a RFRA case is 
reasonable” is a “question that the federal courts have no business addressing.” 
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 724, 134 S. Ct. 2751, 189 L. Ed. 
2d 675 (2014). Here, the sincerity of Appellants’ religious beliefs preventing 
vaccination is implied by their allegations that they were granted exemptions, 
however nominally.  The District Court’s (and Appellees’) demand that they further 
“identify” (i.e., explain) their religious practice at issue defies Burwell.3  
 
3 To be clear, an “exercise of religion” protected by RFRA may consist of 
inaction. The Supreme Court has long recognized that “a State would be ‘prohibiting 
the free exercise [of religion]’ if it sought to ban such acts or abstentions only when 
they are engaged in for religious reasons, or only because of the religious belief that 
they display.” Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 
872, 877, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (emphasis added, bracketed text 
in original, quoting U.S. Const. Amend. 1. Cl. 1). 
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Under these circumstances, Appellants’ claims remain ripe, if for no other 
reason, than to address the RFRA claims inclusive of nominal damages available to 
Appellants. 
 
Respectfully submitted, 
 
 
s/ Nathan J. Arnold 
s/Simon Peter Serrano 
Counsel for Appellants 
 
 
 
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UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 
Form 8. Certificate of Compliance 
Instructions for this form: http://www.ca9.uscourts.gov/forms/form18instructions.pdf  
 
9th Cir. Case Number(s)  
22-35474 
 
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that: 
This brief complies with the type-volume limitation of Fed. R. App. P. 
32(a)(7)(B) because this brief contains 2,693 words, excluding the parts of the 
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 
This brief complies with the typeface requirements of Fed. R. App. P. 
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 
brief has been prepared in a proportionately spaced typeface using Microsoft Word 
Times New Roman 14-point font. 
DATED this 12th day of May 2023. 
 
 
 
 
 
 
ARNOLD & JACOBOWITZ PLLC 
 
 
 
 
 
 
s/ Nathan J. Arnold 
 
 
 
 
 
 
 
 
 
Nathan J. Arnold, WSBA No. 45356 
 
 
 
 
 
 
8201 164th Ave. NE, Suite 200 
 
 
 
 
 
 
Redmond, WA 98052 
 
 
 
 
 
 
(206) 799 – 4221 
 
 
 
 
 
 
Nathan @CAJLawyers.com 
 
 
 
 
 
 
Counsel for Appellants 
Case: 22-35474, 05/12/2023, ID: 12714814, DktEntry: 49, Page 13 of 13

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