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The defendants’ brief regarding the court’s order to show cause in State of Missouri, et al. v. Joseph R. Biden, et al., No. 4:21-cv-01300-DDN, in the U.S. District Court for the Eastern District of Missouri, Eastern Division, filed September 15, 2023 as Doc. #: 70. The brief is organized as an introduction, a background on Executive Order 14042, this lawsuit and the revocation of that order, a legal standard, and two argument sections. It argues that the case is moot following the revocation of Executive Order 14042 and that no exception to the mootness doctrine applies. It also responds to the plaintiffs’ response brief on whether the defendants retain the power to reinstate the challenged actions. The 22-page brief asks the court to dismiss the case as moot and is signed by Department of Justice trial attorneys.
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No. 4:21-cv-01300-JSD · Doc. 70 · Docket on CourtListener
Full text
Case: 4:21-cv-01300-JSD Doc. #: 70 Filed: 09/15/23 Page: 1 of 22 PageID #: 1348
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STATE OF MISSOURI, et al.,
Plaintiffs,
v. No. 4:21-cv-01300-DDN
JOSEPH R. BIDEN, et al.
Defendants.
DEFENDANTS’ BRIEF REGARDING THE
COURT’S ORDER TO SHOW CASE
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TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................................... 1
BACKGROUND .............................................................................................................................................. 2
I. Executive Order 14042 ....................................................................................................................... 2
II. This Lawsuit .......................................................................................................................................... 3
III. Revocation of Executive Order 14042 ............................................................................................. 4
LEGAL STANDARD ...................................................................................................................................... 5
ARGUMENT..................................................................................................................................................... 6
I. This case is moot. ................................................................................................................................. 6
II. No exception to mootness applies. .................................................................................................10
CONCLUSION ...............................................................................................................................................15
i
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TABLE OF AUTHORITIES
CASES
Abdurrahman v. Dayton,
903 F.3d 813 (8th Cir. 2018) ......................................................................................................................13
Akiachak Native Cmty. v. United States Dep’t of Interior,
827 F.3d 100 (D.C. Cir. 2016) ................................................................................................................ 6, 7
Almaqrami v. Pompeo,
933 F.3d 774 (D.C. Cir. 2019) ..................................................................................................................... 8
Already, LLC v. Nike,
568 U.S. 85 (2013) .............................................................................................................................. 1, 6, 11
Bazzrea v. Mayorkas,
--- F. Supp. 3d ---, 2023 WL 3958912 (S.D. Tex. June 12, 2023)........................................................... 9
Beck ex rel. Beck v. Mo. State High Sch. Activities Ass’n,
18 F.3d 604 (8th Cir. 1994) ........................................................................................................................13
Bos. Bit Labs, Inc. v Baker,
11 F.4th 3 (1st Cir. 2021)............................................................................................................................11
Brach v. Newsom,
38 F.4th 6 (9th Cir. 2022), cert. denied, 143 S. Ct. 854 (2023) .................................................................10
Brnovich v. Biden,
562 F. Supp. 3d 123 (D. Ariz. 2022), rev’d sub nom. Mayes v. Biden, 67 F.4th 921 (9th Cir. 2023) ....... 4
Carson v. Pierce,
719 F.2d 931 (8th Cir. 1983) ........................................................................................................................ 8
Church of Scientology v. United States,
506 U.S. 9 (1992) ........................................................................................................................................... 8
City News & Novelty, Inc. v. City of Waukesha,
531 U.S. 278 (2001) .....................................................................................................................................11
Clark v. Governor of N.J.,
53 F.4th 769 (3d Cir. 2022), cert. denied sub nom. Clark v. Murphy, 143 S. Ct. 2436 (2023) ............. 8, 10
Clements v. Austin,
No. 2:22-2069, 2023 WL 3479466 (D.S.C. May 16, 2023) ...................................................................... 9
Colonel Fin. Mgmt. Officer v. Austin,
Nos. 8:22-1275, 8:21-2429, 2023 WL 2764767 (M.D. Fla. Apr. 3, 2023) ............................................. 9
ii
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Donovan v. Vance,
70 F.4th 1167 (9th Cir. 2023)....................................................................................................................... 8
Eden, LLC v. Justice,
36 F.4th 166 (4th Cir. 2022)................................................................................................................ 10, 12
Fialka-Feldman v. Oakland Univ. Bd. of Trs.,
639 F.3d 711 (6th Cir. 2011) ................................................................................................................... 7, 8
Florida v. Nelson,
576 F. Supp. 3d 1017 (M.D. Fla. 2021), appeal dismissed sub nom. Florida v. Administrator, NASA,
No. 22-10165-AA, 2022 WL 18282863 (11th Cir. Oct. 26, 2022) ......................................................... 4
Friends of the Earth, Inc. v. Laidlaw Env’t Serv. (TOC), Inc.,
528 U.S. 167 (2000) .............................................................................................................................. 10, 11
Georgia v. Biden,
574 F. Supp. 3d 1337 (S.D. Ga. 2021), aff’d in part and vacated in part sub nom.
Georgia v. President of the U.S., 46 F.4th 1283 (11th Cir. 2022) .................................................................. 4
Georgia v. President of the U.S.,
46 F.4th 1283 (11th Cir. 2022) ......................................................................................................... 2, 4, 14
Glow In One Mini Golf, LLC v. Walz,
37 F.4th 1365 (8th Cir. 2022), cert. denied, 143 S. Ct. 574 (2023) ............................................................. 9
Hanrahan v. Mohr,
905 F.3d 947 (6th Cir. 2018) ......................................................................................................................11
Hickman v. Missouri,
144 F.3d 1141 (8th Cir. 1998) ................................................................................................ 10, 13, 14, 15
Hillesheim v. Holiday Stationstores, Inc.,
903 F.3d 786 (8th Cir. 2018) ........................................................................................................................ 6
Hollis v. Biden,
No. 21-60910, 2023 WL 3593251 (5th Cir. May 18, 2023) ..................................................................... 9
Iowa Prot. & Advoc. Servs. v. Tanager, Inc.,
427 F.3d 541 (8th Cir. 2005) ......................................................................................................................10
Kentucky v. Biden,
57 F.4th 545 (6th Cir. 2023).................................................................................................................. 3, 14
Kingdomware Techs., Inc. v. United States,
579 U.S. 162 (2016) .....................................................................................................................................10
Louisiana v. Biden,
575 F. Supp. 3d 680 (W.D. La. 2021), aff’d, 55 F.4th 1017 (5th Cir. 2022)........................................... 4
iii
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Marine Equip. Mgmt. Co. v. United States,
4 F.3d 643 (8th Cir. 1993) ............................................................................................................................ 6
Missouri v. Biden,
576 F. Supp. 3d 622 (E.D. Mo. 2021), appeal dismissed,
2023 WL 3862561 (8th Cir. June 7, 2023) ................................................................................................. 4
Missouri v. Biden,
No. 22-1104, 2023 WL 3862561 (8th Cir. June 7, 2023) .................................................................... 4, 9
Mo. ex rel. Nixon v. Craig,
163 F.3d 482 (8th Cir. 1998) ................................................................................................................. 6, 14
Murphy v. Hunt,
455 U.S. 478 (1982) .....................................................................................................................................14
Navy SEAL 1 v. Austin,
No. 22-5114, 2023 WL 2482927 (D.C. Cir. Mar. 10, 2023), pet. for cert. filed sub nom.
Creaghan v. Austin, No. 22-1201 (U.S. June 12, 2023) ............................................................................... 9
Neighborhood Transp. Network, Inc. v. Pena,
42 F.3d 1169 (8th Cir. 1994) ........................................................................................................................ 6
Parents Involved in Community Schools v. Seattle School District No. 1,
551 U.S. 701 (2007) .....................................................................................................................................12
Phelps–Roper v. City of Manchester,
697 F.3d 678 (8th Cir. 2012) ........................................................................................................................ 6
Prowse v. Payne,
984 F.3d 700 (8th Cir. 2021) ................................................................................................................. 6, 11
Raines v. Byrd,
521 U.S. 811 (1997) ....................................................................................................................................... 6
Radiant Glob. Logistics, Inc. v. Furstenau,
951 F.3d 393 (6th Cir. 2020) ........................................................................................................................ 7
Randolph v. Rodgers,
170 F.3d 850 (8th Cir.1999) .......................................................................................................................13
Regalado v. Dir., Ctr. for Disease Control,
No. 22-12265, 2023 WL 239989 (11th Cir. Jan. 18, 2023) ...................................................................... 9
Resurrection Sch. v. Hertel,
35 F.4th 524 (6th Cir. 2022), cert. denied, 143 S. Ct. 372 (2022) ................................................ 10, 11, 12
Robert v. Austin,
72 F.4th 1160 (10th Cir. 2023) .................................................................................................................... 9
iv
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Roth v. Austin,
62 F.4th 1114 (8th Cir. 2023)....................................................................................................................... 9
Short v. Berger,
Nos. 22-15755, 22-16607, 2023 WL 2258384 (9th Cir. Feb. 24, 2023) ................................................. 9
Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26 (1976) ......................................................................................................................................... 6
South Dakota v. Hazen,
914 F.2d 147 (8th Cir. 1990) ........................................................................................................... 6, 13, 14
Spell v. Edwards,
962 F.3d 175 (5th Cir. 2020) ........................................................................................................................ 8
Spencer v. Kemna,
523 U.S. 1 (1998) .................................................................................................................................. 13, 15
Teague v. Cooper,
720 F.3d 973 (8th Cir. 2013) ......................................................................................................................10
Trump v. Hawaii,
138 S. Ct. 377 (2017) ..................................................................................................................................... 7
U.S. Navy SEALs 1–26 v. Biden,
72 F.4th 666 (5th Cir. 2023).............................................................................................................. 8, 9, 11
United States v. Munsingwear, Inc.,
340 U.S. 36 (1950) ................................................................................................................................ 14, 15
United States v. Sanchez-Gomez,
584 U.S. ---, 138 S. Ct. 1532 (2018) ................................................................................................... 10, 13
REGULATIONS
Moving Beyond COVID-19 Vaccination Requirements for Federal Workers,
EO 14,099, 88 Fed. Reg. 30,891, (May 9, 2023) ........................................................................ 1, 2, 5, 12
Ensuring Adequate COVID Safety Protocols for Federal Contractors,
EO 14042, 86 Fed. Reg. 50,985 (Sept. 9, 2021),
revoked by EO 14099, 88 Fed. Reg. 30,891 (May 9, 2023) ................................................................... 2, 3
Determination of the Acting OMB Director Regarding the Revised Safer Federal Workforce
Task Force Guidance for Federal Contractors and the Revised Economy & Efficiency Analysis,
86 Fed. Reg. 63,418 (Nov. 16, 2021) .......................................................................................................... 3
v
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OTHER AUTHORITIES
Alex M. Azar II, PHE.gov, Determination that a Public Health Emergency Exists (Jan. 31, 2020),
https://perma.cc/VZ5X-CT5R.................................................................................................................. 2
Centers for Disease Control and Prevention, COVID Data Tracker (updated July 3, 2023),
https://perma.cc/TU6E-RWCD ............................................................................................................... 2
Task Force, For Federal Contractors (May 12, 2023),
https://perma.cc/BTT2-BF58............................................................................................................... 5, 7
The White House, The Biden-Harris Administration Will End COVID-19 Vaccination Requirements for
Federal Employees, Contractors, International Travelers, Head Start Educators, and CMS-Certified Facilities
(May 1, 2023),
https://perma.cc/93DS-N47L ............................................................................................................ 4, 13
White House, Proclamation on Declaring a National Emergency Concerning the Novel
Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020),
https://perma.cc/3PUQ-XNYY................................................................................................................ 2
vi
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INTRODUCTION
Plaintiffs filed this lawsuit nearly two years ago to prevent enforcement of Executive Order
(EO) 14042. The President issued that order in September 2021, during an acute phase of the
COVID-19 pandemic, directing federal agencies to include in certain contracts a clause requiring
compliance with COVID-19 workplace safety protocols, including a COVID-19 vaccination
requirement for contractors’ employees. But since then, the President has determined that EO
14042’s requirements are no longer warranted in light of dramatic improvements in public-health
conditions. He therefore revoked EO 14042 and instructed that all policies premised on that order
must be rescinded and cannot be enforced. As a result, there is no longer any effective relief that this
Court can grant to Plaintiffs. Plaintiffs’ legal challenge to the now-rescinded EO 14042 is therefore
moot, as this Court suspected when it issued an order for Plaintiffs to “show cause as to why this
case should not be dismissed in its entirety as moot.” ECF No. 66.
Plaintiffs agree that this case is moot, but they argue that two exceptions to the mootness
doctrine apply. They are wrong. First, the voluntary-cessation exception does not apply here because
that rule is intended to prevent litigation posturing. Here, the President revoked EO 14042 in May
of 2023, more than eighteen months after signing the EO, because the country is “no longer in the
acute phase” of the COVID-19 pandemic, not in any effort to evade judicial review or gain litigation
advantage. Moving Beyond COVID-19 Vaccination Requirements for Federal Workers, EO 14,099,
§ 1, 88 Fed. Reg. 30,891, 30,891 (May 9, 2023). Further, the President “could not reasonably be
expected” to reinstate EO 14042. Already, LLC v. Nike, 568 U.S. 85, 92 (2013) (citation omitted). If
the COVID-19 pandemic were to reenter an acute phase posing heightened dangers to the public
and the civilian federal workforce, any policies adopted in response to those developments would be
based on and responsive to those new circumstances.
Second, this case is not capable of repetition yet evading review, the other, narrow mootness
1
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exception. Here again, Plaintiffs have no reasonable expectation of being subject again to EO 14042
and the accompanying policies. And if they somehow could challenge an identical policy in the
future, there is every expectation that Plaintiffs could have their challenge resolved before the policy
would expire, as plaintiffs did in other cases challenging this EO. See, e.g., Georgia v. President of the
U.S., 46 F.4th 1283, 1308 (11th Cir. 2022).
For the foregoing reasons, and as explained further below, this case is moot and should be
dismissed.
BACKGROUND
I. Executive Order 14042
In January 2020, the Secretary of Health and Human Services declared a public health
emergency as SARS-CoV-2, a highly transmissible virus that causes a deadly respiratory disease
known as COVID-19, emerged and spread across the country. 1 Shortly thereafter, the President
declared the COVID-19 outbreak a national emergency. 2 A prolonged global pandemic unfolded
over the ensuing years, with SARS-CoV-2 infecting, hospitalizing, and killing millions of Americans
and severely disrupting public life and business operations in the United States. 3
In September 2021, during an acute phase of the COVID-19 pandemic, the President
responded to this national emergency by issuing Ensuring Adequate COVID Safety Protocols for
Federal Contractors, EO 14042, 86 Fed. Reg. 50,985 (Sept. 9, 2021), revoked by EO 14099, 88 Fed.
Reg. 30,891 (May 9, 2023). EO 14042 directed Executive departments and agencies to incorporate
into certain new contracts and solicitations a clause imposing COVID-19 workplace safety
1
Alex M. Azar II, PHE.gov, Determination that a Public Health Emergency Exists (Jan. 31, 2020),
https://perma.cc/VZ5X-CT5R.
2
White House, Proclamation on Declaring a National Emergency Concerning the Novel
Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://perma.cc/3PUQ-XNYY.
3
Centers for Disease Control and Prevention, COVID Data Tracker (updated July 3, 2023),
https://perma.cc/TU6E-RWCD.
2
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protocols, including a vaccination requirement for contractors’ employees. 4
II. This Lawsuit
Plaintiffs filed this suit on October 29, 2021, to challenge the issuance and implementation
of EO 14042. See Compl., ECF No. 1. Plaintiffs sought declaratory and prospective injunctive relief
from the “COVID-19 vaccine mandate on federal contractors,” which, according to Plaintiffs,
comprised Executive Order 14042 and three documents promulgated to implement that order—
(i) the Task Force’s workplace safety guidance for federal contractors; (ii) the Acting Director of
OMB’s determination that adherence to the Task Force’s guidance would promote economy and
efficiency in federal contracting; and (iii) the Federal Acquisition Regulatory (“FAR”) Council’s
memorandum providing initial guidance for incorporating COVID-19 safety clauses in federal
contracts. See Compl., Prayer for Relief. A few days later, Plaintiffs filed a motion for a preliminary
injunction, seeking to prevent the federal government from enforcing EO 14042 and its
implementing guidance. See Pls.’ Mot. for a Prelim. Inj., ECF No. 8.
Enforcement of EO 14042 was short lived. On November 30, 2021, a district court in the
Eastern District of Kentucky preliminarily enjoined Defendants “from enforcing the mandate
against any covered contractors in” Kentucky, Ohio, and Tennessee. Kentucky v. Biden, 57 F.4th 545,
550 (6th Cir. 2023). The following week, the U.S. District Court for the Southern District of Georgia
issued a nationwide preliminary injunction that enjoined the federal government “from enforcing the
vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or
4
The COVID-19 workplace safety protocols were developed by the Safer Federal Workforce
Task Force (“Task Force”) and became binding on November 16, 2021, when the Acting Director of
the Office of Management and Budget (“OMB”) determined, pursuant to the President’s delegation
of his statutory authority, that adherence to the protocols would promote economy and efficiency in
federal contracting. See EO 14042 § 2, 86 Fed Reg. at 50895-96; see also Determination of the Acting
OMB Director Regarding the Revised Safer Federal Workforce Task Force Guidance for Federal
Contractors and the Revised Economy & Efficiency Analysis, 86 Fed. Reg. 63,418, 63,418–23 (Nov.
16, 2021).
3
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territory of the United States of America.” Georgia v. Biden, 574 F. Supp. 3d 1337, 1357 (S.D. Ga.
2021), aff’d in part and vacated in part sub nom. Georgia v. President of the U.S., 46 F.4th 1283, 1308 (11th
Cir. 2022). Additional injunctions soon followed, including the preliminary injunction issued by this
Court. See Missouri v. Biden, 576 F. Supp. 3d 622, 635 (E.D. Mo. 2021) (granting a preliminary
injunction as to federal contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New
Hampshire, North Dakota, South Dakota, and Wyoming), appeal dismissed, 2023 WL 3862561 (8th
Cir. June 7, 2023) (per curiam); Louisiana v. Biden, 575 F. Supp. 3d 680, 696 (W.D. La. 2021) (granting
a preliminary injunction as to the state plaintiffs’ federal contracts), aff’d, 55 F.4th 1017 (5th Cir.
2022); Florida v. Nelson, 576 F. Supp. 3d 1017, 1040 (M.D. Fla. 2021) (granting a preliminary
injunction as to federal contracts in Florida), appeal dismissed sub nom. Florida v. Administrator, NASA,
No. 22-10165-AA, 2022 WL 18282863 (11th Cir. Oct. 26, 2022); Brnovich v. Biden, 562 F. Supp. 3d
123, 167 (D. Ariz. 2022) (granting a preliminary injunction limited to Arizona’s “geographic
boundaries”), rev’d sub nom. Mayes v. Biden, 67 F.4th 921, 945–46 (9th Cir. 2023).
After this court issued its preliminary injunction, Defendants promptly appealed this Court’s
order granting Plaintiffs’ motion for a preliminary injunction to the Eighth Circuit, see Notice of
Appeal, ECF No. 43, and shortly thereafter, this Court granted the parties’ motion to stay
proceedings pending final resolution of that appeal, see Order, ECF No. 46.
III. Revocation of Executive Order 14042
On May 1, 2023, the White House issued a statement announcing that the Administration
would “end the COVID-19 vaccine requirement[] for . . . Federal contractors” on May 11, 2023,
“the same day that the COVID-19 public health emergency ends.” See The White House, The Biden-
Harris Administration Will End COVID-19 Vaccination Requirements for Federal Employees, Contractors,
International Travelers, Head Start Educators, and CMS-Certified Facilities (May 1, 2023),
https://perma.cc/93DS-N47L.
4
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On May 9, 2023, the President issued an Executive Order revoking EO 14042, thereby
ending the COVID-19 vaccination requirement for Federal contractors effective May 12, 2023, at
12:01 a.m. eastern daylight time. See Executive Order 14099 §§ 2–3, 88 Fed. Reg. at 30,891. The
Executive Order explained that the Nation is “no longer in the acute phase of the COVID-19
pandemic,” and that “[s]ince September 2021, COVID–19 deaths have declined by 93 percent, and
new COVID–19 hospitalizations have declined by 86 percent.” Id. The Executive Order touted that
“over 270 million Americans receiving at least one dose of the COVID–19 vaccine.” Id. The
Executive Order further instructed that “[a]gency policies adopted to implement Executive Order
14042 . . . , to the extent such policies are premised on th[at] order[], no longer may be enforced and
shall be rescinded consistent with applicable law.” See id. § 2, 88 Fed. Reg. at 30,891.
On May 12, 2023, the Task Force updated its website to indicate that Executive Order
14042 had been revoked and that “all prior guidance from the . . . Task Force implementing the
requirements of Executive Order 14042 has also been revoked.” See Task Force, For Federal
Contractors (May 12, 2023), https://perma.cc/BTT2-BF58.
Shortly thereafter, Defendants moved to dismiss the appeal in this case because EO 14042’s
revocation and the ensuing revocation of the associated guidance documents rendered the appeal
moot. Appellants’ Mot. to Dismiss, Missouri v. Biden, 22-1104 (8th Cir.) On June 7, 2023, the Eighth
Circuit granted the motion to dismiss in a per curiam memorandum and accompanying judgment. The
Eighth Circuit issued its mandate on July 31, 2023. See Mandate, ECF No. 62.
On August 15, 2023, this Court ordered Plaintiffs to show cause for why this case should
not be dismissed as moot. Order, ECF No. 66. Plaintiff filed their response brief on August 31,
2023, Pls.’ Resp. Brief, ECF No. 68, and thereafter this Court instructed Defendants to file a reply.
LEGAL STANDARD
“When a case . . . no longer presents an actual, ongoing case or controversy, the case is moot
5
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and the federal court no longer has jurisdiction to hear it.” Neighborhood Transp. Network, Inc. v. Pena,
42 F.3d 1169, 1172 (8th Cir. 1994). This requirement “applies with equal force to actions for
declaratory judgment as it does to actions seeking traditional coercive relief.” Marine Equip. Mgmt. Co.
v. United States, 4 F.3d 643, 646 (8th Cir. 1993).
ARGUMENT
I. This case is moot.
This case is moot under ordinary mootness principles, and Plaintiffs concede as much in
their response brief. “No principle is more fundamental to the judiciary’s proper role in our system
of government than the constitutional limitation of federal-court jurisdiction to actual cases or
controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26, 37 (1976)). So if at any stage of litigation “the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome,” the “case becomes moot” and must be
dismissed for lack of jurisdiction “[n]o matter how vehemently” a plaintiff may continue to “dispute
the lawfulness of the conduct that precipitated the lawsuit[.]” Already, LLC., 568 U.S. at 91 (citation
omitted). Put another way, “a case becomes moot ‘when changed circumstances already provide the
requested relief and eliminate the need for court action.”’ Prowse v. Payne, 984 F.3d 700, 702 (8th Cir.
2021) (quoting Hillesheim v. Holiday Stationstores, Inc., 903 F.3d 786, 791 (8th Cir. 2018)). In such
circumstances, the court “must refrain from reaching the merits because any opinion issued would
be merely ‘advisory’ and rest on hypothetical underpinnings.” Mo. ex rel. Nixon v. Craig, 163 F.3d 482,
484 (8th Cir. 1998) (quoting South Dakota v. Hazen, 914 F.2d 147, 150 (8th Cir. 1990)).
When a litigant challenges a government policy, a case typically becomes moot when that
policy changes or is rescinded or appealed. “When a law has been amended or repealed, actions
seeking declaratory or injunctive relief for earlier versions are generally moot . . . .” Phelps–Roper v.
City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (en banc); accord Akiachak Native Cmty. v. United
6
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States Dep’t of Interior, 827 F.3d 100, 106 (D.C. Cir. 2016) (“Because [the challenged] regulation no
longer exists, we can do nothing to affect Akiachak’s rights relative to it, thus making this case
classically moot for lack of a live controversy.”); see also, e.g., Trump v. Hawaii, 138 S. Ct. 377 (2017)
(mem.) (instructing a lower court to dismiss as moot a case challenging an Executive Order that was
no longer effective).
Measured by these principles, this case is moot. Plaintiffs brought this lawsuit over twenty-
two months ago to challenge and seek relief from the “mandate that all employees of federal
contractors be vaccinated,” Compl. ¶ 2, which, according to Plaintiff, encompassed EO 14042, the
Safer Workforce Taskforce’s and FAR Council’s guidance issued in accordance with the EO, and
the Office of Management and Budget’s conclusion that EO 14042 promotes economy and
efficiency in federal contracting, see Compl, Prayer for Relief. But none of those orders or policies
are still in force. Since then, the President has revoked EO 14042 and instructed that any policies
premised on that order—including each of the actions that Plaintiffs challenge—can no longer be
enforced and must be rescinded. See EO 14099, 88 Fed. Reg. at 30,891. And consistent with those
instructions, the Task Force revoked its prior guidance implementing EO 14042’s requirements. See
Task Force, For Federal Contractors (May 12, 2023), https://perma.cc/BTT2-BF58. Plaintiffs now
challenge an EO that has been revoked, is no longer in effect, and with which they will never have
to comply. As a result, Plaintiffs possess no “legally cognizable interest” in challenging these past
actions, as they “require nothing of and mean nothing to” Plaintiffs. See Radiant Glob. Logistics, Inc. v.
Furstenau, 951 F.3d 393, 395–96 (6th Cir. 2020) (cleaned up). So what may have “started as a
disagreement with consequences for both parties” has become “an abstract dispute with
consequences for neither party”—the definition of mootness. See Fialka-Feldman v. Oakland Univ. Bd.
of Trs., 639 F.3d 711, 713–14 (6th Cir. 2011).
That this Court can provide no “effectual relief” to Plaintiffs underscores the mootness of
7
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this case. See id. at 713 (quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992)). Plaintiffs
seek only declaratory and prospective injunctive relief from EO 14042 and its implementing
guidance. See Compl., Prayer for Relief. But the President revoked EO 14042, and it is no longer in
effect. Supra pp. 4–5. There is therefore no action for this Court to enjoin. See, e.g., U.S. Navy SEALs
1–26 v. Biden, 72 F.4th 666, 672 (5th Cir. 2023) (“There is no need to enjoin policies that no longer
exist.”); Carson v. Pierce, 719 F.2d 931, 933 (8th Cir. 1983) (“If declaratory relief or an injunction were
to be granted, it would have no effect on the individual plaintiffs” because they are no longer subject
to the challenged policies.); Spell v. Edwards, 962 F.3d 175, 179 (5th Cir. 2020) (“Once the law is off
the books, there is nothing injuring the plaintiff and, consequently, nothing for the court to do.”);
Almaqrami v. Pompeo, 933 F.3d 774, 783 (D.C. Cir. 2019) (“[C]ourts generally cannot declare unlawful
or enjoin policies that are no longer in force[.]”). EO 14042’s revocation provided Plaintiffs with all
the relief that any injunction could have provided. See, e.g., U.S. Navy SEALs 1–26, 72 F.4th at 671–
72; Clark v. Governor of N.J., 53 F.4th 769, 776 (3d Cir. 2022) (dismissing as moot challenge to
withdrawn COVID-19–related policies because the withdrawal gave the plaintiffs “the very relief
sought”), cert. denied sub nom. Clark v. Murphy, 143 S. Ct. 2436 (2023).
Consistent with this analysis, numerous courts have concluded that challenges to federal
COVID-19 vaccination requirements—including EO 14042—became moot when those
requirements were rescinded. 5 See, e.g., Donovan v. Vance, 70 F.4th 1167, 1171–72 (9th Cir. 2023)
5
Facing this broad judicial consensus, several plaintiffs that had challenged EO 14042
voluntarily dismissed their cases following its revocation. Oklahoma v. Biden, No. 5:21-cv-1069 (W.D.
Okla. June 21, 2023), ECF No. 57; Georgia v. Biden, No. 1:21-cv-163 (S.D. Ga. June 1, 2023), ECF
No. 127; Louisiana v. Biden, No. 1:21-cv-3867 (W.D. La. May 31, 2023), ECF No. 63; Florida v. Nelson,
No. 8:21-cv-2524 (M.D. Fla. May 23, 2023), ECF No. 50; Assoc. Gen. Contractors of Am., Inc. v. Biden,
No. 4:21-cv-1344 (N.D. Tex. May 16, 2023), ECF No. 53; Texas v. Biden, No. 3:21-cv-309 (S.D. Tex.
May 12, 2023), ECF No. 64; Skurich v. Biden, No. 3:22-cv-10 (S.D. Tex. May 22, 2023), ECF No. 12;
US Freedom Flyers v. United States, No. 8:21-cv-2738 (M.D. Fla. May 18, 2023), ECF No. 27. Kentucky
v. Biden, No. 3:21-cv-00055 (E.D. Ky. July 27, 2023), ECF No. 69.
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(“We cannot provide relief from” EO 14042 because it “no longer exist[s],” and therefore “we hold
that this appeal is moot and dismiss.”); Hollis v. Biden, No. 21-60910, 2023 WL 3593251, at *1 (5th
Cir. May 18, 2023) (finding a case challenging EO 14042 had become moot following revocation of
the order and its implementing guidance); U.S. Navy SEALs 1–26, 72 F.4th at 669-76 (dismissing as
moot an appeal challenging the military’s COVID-19 vaccination mandate following the mandate’s
rescission); Robert v. Austin, 72 F.4th 1160 (10th Cir. 2023) (same); Roth v. Austin, 62 F.4th 1114, 1119
(8th Cir. 2023) (same); Navy SEAL 1 v. Austin, No. 22-5114, 2023 WL 2482927 (D.C. Cir. Mar. 10,
2023) (same), pet. for cert filed sub nom. Creaghan v. Austin, No. 22-1201 (U.S. June 12, 2023); Short v.
Berger, Nos. 22-15755, 22-16607, 2023 WL 2258384 (9th Cir. Feb. 24, 2023) (same); Regalado v. Dir.,
Ctr. for Disease Control, No. 22-12265, 2023 WL 239989 (11th Cir. Jan. 18, 2023) (affirming dismissal
of case as moot where the challenged Occupational Safety and Health Administration’s COVID-19
vaccination mandate had been “withdrawn”); Bazzrea v. Mayorkas, --- F. Supp. 3d ---, 2023 WL
3958912, at *4 (S.D. Tex. June 12, 2023) (dismissing as moot case challenging the Coast Guard’s
COVID-19 vaccination mandate, explaining that the mandate’s rescission “eliminated the actual
controversy” and precluded the court from providing “effectual relief”); Clements v. Austin, No. 2:22-
2069, 2023 WL 3479466, at *3 (D.S.C. May 16, 2023) (same); Colonel Fin. Mgmt. Officer v. Austin, Nos.
8:22-1275, 8:21-2429, 2023 WL 2764767, at *3 (M.D. Fla. Apr. 3, 2023) (dismissing as moot case
challenging the military’s COVID-19 vaccination mandate because the “mandate no longer exists”);
cf. Missouri v. Biden, No. 22-1104, 2023 WL 3862561, at *1 (8th Cir. June 7, 2023) (“Because EO
14042 and its accompanying guidance have been revoked and can no longer be enforced, . . . we
conclude this appeal has become moot and dismiss it as such.” (citation omitted)). 6
6
Many courts have come to the same conclusion concerning challenges to other COVID-
19–related policies that—like EO 14042—were repealed or terminated during the course of
litigation. See, e.g., Glow In One Mini Golf, LLC v. Walz, 37 F.4th 1365, 1371–73 (8th Cir. 2022)
(dismissing as moot claims for declaratory and injunctive relief where the challenged state executive
order limiting the capacity at which certain businesses could operate was “no longer in effect” and
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II. No exception to mootness applies.
Plaintiffs do not contest that this this case is moot under ordinary mootness principles; they
instead insist that the limited exceptions to the mootness doctrine applies. The Supreme Court has
recognized two circumscribed exceptions to the mootness doctrine. First, mere “voluntary
cessation” of a challenged action may not moot a case if that action could reasonably be expected to
recur. See Hickman v. Missouri, 144 F.3d 1141, 1143–44 (8th Cir. 1998) (citation omitted). Second,
courts will sometimes resolve otherwise moot controversies that are “capable of repetition, yet
evading review.” United States v. Sanchez-Gomez, 584 U.S. ---, 138 S. Ct. 1532, 1540 (2018) (quoting
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016)). Neither exception applies here.
1. Voluntary cessation. Plaintiffs first argue that their claims survive under the voluntary-
cessation exception to mootness. Pls.’ Resp. Br. at 10–12. Not so. Under that exception, a party's
voluntary cessation of challenged action may not moot a challenge to that action absent a sufficient
showing that the defendant will not resume the challenged action. See, e.g., Friends of the Earth, Inc. v.
Laidlaw Env’t Serv. (TOC), Inc., 528 U.S. 167, 189 (2000). The Eighth Circuit explains that the
exception applies where the “defendant attempts to avoid . . . review by voluntarily ceasing allegedly
illegal conduct.” Iowa Prot. & Advoc. Servs. v. Tanager, Inc., 427 F.3d 541, 543 (8th Cir. 2005); accord,
e.g., Teague v. Cooper, 720 F.3d 973, 978 (8th Cir. 2013) (exception did not apply where legislature was
not “seeking to moot a case” with change in the law (citation omitted)). The exception “traces to the
all related restrictions “lost their life during the course of th[e] litigation”), cert. denied, 143 S. Ct. 574
(2023); Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (instructing lower court to dismiss
as moot challenge to a rescinded state mask mandate), cert. denied, 143 S. Ct. 372 (2022); Clark, 53
F.4th at 776 (dismissing as moot challenge to withdrawn state stay-at-home orders and restrictions
on in-person gatherings, explaining that the court could grant “no effectual relief” given that the
policies’ withdrawal gave the plaintiffs “the very relief sought” (citation omitted)); Eden, LLC v.
Justice, 36 F.4th 166, 172 (4th Cir. 2022) (instructing lower court to dismiss as moot challenges to
rescinded state executive orders limiting the size of certain gatherings); Brach v. Newsom, 38 F.4th 6,
15 (9th Cir. 2022) (en banc) (instructing lower court to dismiss as moot challenge to a rescinded
state executive order that had restricted in-school learning), cert. denied, 143 S. Ct. 854 (2023).
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principle that a party should not be able to evade judicial review, or to defeat a judgment, by
temporarily altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S.
278, 284 n.1 (2001); see also Friends of the Earth, 528 U.S. at 189 (exception is to prevent party from
temporarily ceasing challenged action and then “return[ing] to his old ways”) (citation omitted).
This case does not fall in the voluntary-cessation exception to mootness because the
litigation-posturing concerns animating the exception are not here. First, the government has an
easier time satisfying this test than other litigants, Prowse, 984 F.3d at 702-03, because courts treat the
government’s cessation of challenged conduct “with more solicitude . . . than similar action by
private parties,” Hanrahan v. Mohr, 905 F.3d 947, 961 (6th Cir. 2018) (citation omitted). That is
because courts presume that governmental actors “act in good faith,” U.S. Navy SEALs 1–26, 72
F.4th at 674 (citation omitted), and “government self-correction provides a secure foundation for a
dismissal based on mootness so long as it appears genuine,” Hanrahan, 905 F.3d at 961.
Second, there is no evidence of gamesmanship on behalf of the government. See, e.g. Already,
LLC, 568 U.S. at 91 (explaining that the voluntary-cessation exception ensures that a defendant
cannot evade judicial review by stopping questionable behavior “to have the case declared moot”
just to “pick up where he left off . . . until he achieves all his” ends); Resurrection Sch., 35 F.4th at 529–
30 (rejecting the plaintiffs’ reliance on the voluntary-cessation exception because, inter alia, there was
a “lack of gamesmanship on the State’s part”); U.S. Navy SEALs 1–26, 72 F.4th at 674 (refusing to
apply the voluntary-cessation exception where there were no “suspicions of litigation posturing” or
“signs of [ ] gamesmanship” (citation omitted)); Bos. Bit Labs, Inc. v Baker, 11 F.4th 3, 10 (1st Cir.
2021) (“For openers, we question whether this case raises the kind of litigation-scheming suspicions
typically associated with defendant-initiated mootness. . . . [C]ircumstances suggest that Governor
Baker” rescinded the COVID-19–related policies “not to avoid a court judgment, but in response to
the progress made in battling the pandemic.”). The President revoked Executive Order 14042 “not
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in response to this lawsuit, but [eighteen] months later”—“along with several other pandemic-
related orders” like the COVID-19 public health emergency—in response to dramatic changes in
public-health conditions. See Resurrection Sch., 35 F.4th at 529. The timing and circumstances of EO
14042’s rescission thus raise no “suspicions that its cessation was not genuine” or was the product
of “gamesmanship.” See id. at 529–30 (cleaned up).
Third, there is no reasonable expectation that the federal government will reimpose a policy
substantially similar to EO 14042 in the foreseeable future, especially given the dramatic change in
circumstances since the President issued that order. Plaintiffs’ speculation that the President would
sign an “identical” EO at some point in the future is plainly insufficient to overcome Defendants’
clear showing that the voluntary-cessation exception is inapplicable. 7 Pls.’ Resp. Br. at 11. See
Resurrection Sch., 35 F.4th at 529–30 (finding that, because “the relevant circumstances ha[d] changed
dramatically since” the state defendants had imposed their mask mandate, there was no reasonable
possibility that they would reimpose a similar mandate); Eden, 36 F.4th at 171 (similar).
When the President issued EO 14042, the country was in an “acute phase of the COVID-19
pandemic,” when a “highly contagious . . . variant was the predominant variant of the [SARS-CoV-
2] virus in the United States and had led to a rapid rise in cases and hospitalizations.” EO 14099 § 1,
88 Fed. Reg. at 30,891. But the situation today differs markedly from September 2021. As of May
2023, nearly 270 million Americans have received at least one shot of the COVID-19 vaccine,
COVID-19 deaths have declined by 93%, and hospitalizations are down 86%. Id. Moreover, the
American “healthcare system and public health resources throughout the country are now better
able to respond to any potential surge of COVID-19 cases without significantly affecting access to
7
Plaintiffs rely heavily on Parents Involved in Community. Schools v. Seattle School District No. 1,
551 U.S. 701, 719 (2007), but in that case, the school district merely “ceased” applying the
challenged policy “pending the outcome of th[e] litigation,” id. As established above, however, EO
14042 was not paused only during the litigation but rather fully revoked in light of improved public
health conditions.
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resources or care,” and “public health experts have issued guidance that allows individuals to
understand mitigation measures to protect themselves and those around them.” Id. Accordingly, the
Administration and the country are now “in a different phase of [their] response to COVID-19.” See
The White House, The Biden-Harris Administration Will End COVID-19 Vaccination Requirements for
Federal Employees, Contractors, International Travelers, Head Start Educators, and CMS-Certified Facilities (May
1, 2023), https://perma.cc/93DS-N47L. The prospect that the federal government will reimpose
Executive Order 14042 is thus exceedingly remote—and hardly can be reasonably expected.
2. Capable of repetition yet evading review. Nor does this case satisfy the exception for cases that
are “capable of repetition, yet evading review.” Sanchez-Gomez, 138 S. Ct. at 1540. “The capable of
repetition yet evading review rule is an extraordinary and narrow exception to the mootness
doctrine.” Randolph v. Rodgers, 170 F.3d 850, 856 n.7 (8th Cir.1999). This exception applies only “in
exceptional situations, where . . . (1) the challenged action is in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.” Hickman, 144 F.3d at 1142–
43 (alterations omitted) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). Plaintiffs, as the parties
asserting jurisdiction, “bear[] the burden of showing the presence of both requirements.”
Abdurrahman v. Dayton, 903 F.3d 813, 817 (8th Cir. 2018). They cannot show either.
Most obviously, as noted above, there is no “reasonable expectation” that Plaintiffs will be
“subject to the same action again[.]” Hickman, 144 F.3d at 1143 (quoting Spencer, 523 U.S. at 17). “To
raise a reasonable expectation, [plaintiff] must show a demonstrated probability of recurrence; a
theoretical possibility is insufficient.” Beck ex rel. Beck v. Mo. State High Sch. Activities Ass’n, 18 F.3d
604, 606 (8th Cir. 1994). But, given the nation’s vastly improved ability to mitigate the effects of the
COVID-19 virus, there is no reasonable expectation that Plaintiffs will be subject to the same action
again. “‘[A] mere physical or theoretical possibility’ is insufficient to meet” this prong. Hazen, 914
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F.2d at 151 (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)).
Nor can Plaintiffs show that the challenged activity is inherently too short in duration to be
fully litigated prior to cessation or expiration. Hickman, 144 F.3d at 1142–43. Should Plaintiffs
somehow be subject to the same EO in the future, the procedural history of other challenges to the
same EO indicates that Plaintiffs’ claims may be fully litigated. For example, District courts in
Georgia and Kentucky both issued preliminary injunctions against EO 14042, and both the
Eleventh and Sixth Circuits partially affirmed those decisions on the government’s appeals well
before the government revoked EO 14042. Georgia, 46 F.4th at 1308; Kentucky v. Biden, 57 F.4th 545
(6th Cir. 2023). Indeed, the Eleventh Circuit issued its decision almost a year before the EO was
revoked. Georgia, 46 F.4th 1283. Given “the availability of judicial processes such as preliminary
injunctions, emergency stays, and expedited appeals,” there is “no reason why” any challenge to a
future EO could not be fully litigated in time. Craig, 163 F.3d at 485.
Plaintiffs claim that the government’s recent petition for writ of certiorari in Biden v. Feds for
Medical Freedom, No. 23-60 (July 21, 2023), somehow demonstrates that this lawsuit is capable of
repetition yet evading review. Pls.’ Resp. Br. at 13–14. But the government’s petition there is of no
help to Plaintiffs. In that case, the district court issued a preliminary injunction against a different
executive order, and the government argued in its petition that “government’s appeal from that
injunction became moot when the President revoked EO 14,043.” Pet. For Certiorari at 13 (emphasis
added), Feds for Medical Freedom. The government’s petition merely requested vacatur of the
underlying decisions under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), which is appropriate
when a case that would otherwise merit the Supreme Court’s review becomes moot “while on its
way [to the Supreme Court] or pending [a] decision on the merits,” id. at 39. The government’s
vacatur request in Feds for Medical Freedom does not illustrate that Defendants are fighting to “retain
the power” to “re-institute their challenged actions at a later date,” Pls.’ Resp. Br. at 13. Nor does it
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show that “(1) the challenged action [is] in its duration too short to be fully litigated prior to
cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party
[will] be subject to the same action again[.]” Hickman, 144 F.3d at 1142–43 (quoting Spencer, 523 U.S.
at 17). Rather, the petition simply asks the Court to follow the “established practice” to ensure that
no party is “prejudiced by a [lower-court] decision” and “prevent a judgment, unreviewable because
of mootness, from spawning any legal consequences.” Munsingwear, 340 U.S. at 40–41.
CONCLUSION
For the foregoing reasons, the Court should dismiss this case as moot.
Dated: September 15, 2023 Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
BRAD P. ROSENBERG
Special Counsel
/s/ Zachary A. Avallone
VINITA B. ANDRAPALLIYAL
ZACHARY A. AVALLONE
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street NW
Washington, DC 20005
Phone: (202) 514-2705
Email: zachary.a.avallone@usdoj.gov
Counsel for Defendants
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