Memorandum In Support Of Defendants’ Assertion Of Mootness
- Date
- 2023-02-06
Summary
The defendants' Memorandum in Support of Defendants' Assertion of Mootness, filed February 6, 2023 as Document 222 in Navy SEALs 1-3, et al. v. Lloyd J. Austin, III, Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas. It states that Section 525 of the NDAA, signed December 23, 2022, directed the Secretary of Defense to rescind the August 2021 COVID-19 vaccination memorandum, and that the Secretary did so on January 10, 2023. It describes Navy guidance canceling the implementing orders, including NAVADMIN 005/23 and ALNAV 009/23. The memorandum argues that the case is moot and that neither the voluntary cessation nor the capable-of-repetition-yet-evading-review exception applies. It asks the court to dismiss the complaint as moot and is signed by Department of Justice counsel.
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Case 4:21-cv-01236-O Document 222 Filed 02/06/23 Page 1 of 26 PageID 7346
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
NAVY SEALs 1-3, et al.,
Plaintiffs,
Case No. 4:21-cv-01236-O
v.
LLOYD J. AUSTIN, III in his official capacity as
United States Secretary of Defense, et al.,
Defendants.
MEMORANDUM IN SUPPORT OF DEFENDANTS’ ASSERTION OF MOOTNESS
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TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................................... 1
PROCEDURAL BACKGROUND ............................................................................................................... 1
FACTUAL BACKGROUND......................................................................................................................... 3
A. The DoD Mandate. ................................................................................................................ 3
B. The NDAA.............................................................................................................................. 3
C. Plaintiffs ................................................................................................................................... 5
ARGUMENT..................................................................................................................................................... 6
I. The Court Should Dismiss This Action as Moot Because the Challenged
Vaccination Requirement Has Been Repealed and No Remaining Relief is
Available to Plaintiffs. ............................................................................................................ 6
II. Plaintiffs Cannot Challenge Speculative Assignment, Deployment, and
Operational Decisions..........................................................................................................11
III. The Voluntary Cessation Exception Does Not Apply. ..................................................13
IV. The Capable-of-Repetition-Yet-Evading-Review Exception Does Not Apply. .........15
CONCLUSION ...............................................................................................................................................19
i
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TABLE OF AUTHORITIES
Cases
Abbott Lab’ys v. Gardner,
387 U.S. 136 (1967) .....................................................................................................................................13
Aetna Life Ins. Co. of Hartford v. Haworth,
300 U.S. 227 (1937) .....................................................................................................................................13
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013) ......................................................................................................................................... 6
Am. Bar Ass’n v. FTC,
636 F.3d 641 (D.C. Cir. 2011) ...................................................................................................8, 13, 14, 17
Amawi v. Paxton,
956 F.3d 816 (5th Cir. 2020) ......................................................................................................................15
Austin v. U.S. Navy SEALs 1-26,
142 S. Ct. 1301 (2022) ........................................................................................................................ 2, 3, 13
Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Eng’rs,
217 F.3d 393 (5th Cir. 2000) ......................................................................................................................16
Bd. of Trs. of Glazing Health & Welfare Tr. v. Chambers,
941 F.3d 1195 (9th Cir. 2019) ...................................................................................................................... 7
Brown v. Collier,
929 F.3d 218 (5th Cir. 2019) ......................................................................................................................13
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) .................................................................................................................................. 9, 11
Ctr. for Individual Freedom v. Carmouche,
449 F.3d 655 (5th Cir. 2006) ........................................................................................................................ 6
Davila v. Gladden,
777 F.3d 1198 (11th Cir. 2015) ..................................................................................................................12
Dehne v. United States,
970 F.2d 890 (Fed. Cir. 1992) ....................................................................................................................12
Empower Texans, Inc. v. Geren,
977 F.3d 367 (5th Cir. 2020) .................................................................................................. 15, 16, 17, 18
Fantasy Ranch Inc. v. City of Arlington,
459 F.3d 546 (5th Cir. 2006) ........................................................................................................................ 7
ii
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Fontenot v. McGraw,
777 F.3d 741 (5th Cir. 2015) ........................................................................................................... 6, 10, 11
Freedom From Religion Found., Inc. v. Abbott,
No. 21-50469, 2023 WL 565082 (5th Cir. Jan. 27, 2023).................................................................. 7, 15
Garcia v. United States,
666 F.2d 960 (5th Cir. 1982) ......................................................................................................................12
Gilligan v. Morgan,
413 U.S. 1 (1973) ..........................................................................................................................................13
Guedes v. ATF,
920 F.3d 1 (D.C. Cir. 2019) ........................................................................................................................14
Hodges v. Callaway,
499 F.2d 417 (5th Cir. 1974) ......................................................................................................................11
Houston Chronicle Publ’g Co. v. League City,
488 F.3d 613 (5th Cir. 2007) ........................................................................................................................ 7
J. T. v. District of Columbia,
983 F.3d 516 (D.C. Cir. 2020) ....................................................................................................................14
Johnson v. Mississippi,
586 F.2d 387 (5th Cir. 1978) ........................................................................................................................ 7
K.P. v. LeBlanc,
729 F.3d 427 (5th Cir. 2013) ........................................................................................................................ 6
Keister v. Bell,
29 F.4th 1239 (11th Cir. 2022) ..................................................................................................................... 7
Kingdomware Techs., Inc. v. United States,
579 U.S. 162 (2016) .....................................................................................................................................15
Klayman v. Obama,
759 F. App’x 1 (D.C. Cir. 2019) ................................................................................................................14
Knox v. Serv. Emps. Int’l Union, Local 1000,
567 U.S. 298 (2012) ....................................................................................................................................... 9
LaRouche v. Fowler,
152 F.3d 974 (D.C. Cir. 1998) ....................................................................................................................16
Libertarian Party v. Dardenne,
595 F.3d 215 (5th Cir. 2010) ............................................................................................................... 17, 18
iii
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Log Cabin Republicans v. United States,
658 F.3d 1162 (9th Cir. 2011) ...................................................................................................................... 8
Long v. Jayton-Girard Indep. Sch. Dist.,
No. 5:21-CV-111-H, 2021 WL 7906835 (N.D. Tex. Sept. 3, 2021) .....................................................18
Lopez v. City of Houston,
617 F.3d 336 (5th Cir. 2010) ......................................................................................................................17
McCorvey v. Hill,
385 F.3d 846 (5th Cir. 2004) ........................................................................................................................ 7
Mindes v. Seaman,
453 F.2d 197 (5th Cir. 1971) ......................................................................................................................11
Moore v. Hosemann,
591 F.3d 741 (5th Cir. 2009) ......................................................................................................................16
Murphy v. Hunt,
455 U.S. 478 (1982) .....................................................................................................................................17
Ohio Forestry Ass’n v. Sierra Club,
523 U.S. 726 (1998) .....................................................................................................................................13
Oliver v. Scott,
276 F.3d 736 (5th Cir. 2002) ......................................................................................................................17
Orloff v. Willoughby,
345 U.S. 83 (1953) .......................................................................................................................................13
People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric.,
918 F.3d 151 (D.C. Cir. 2019) ....................................................................................................................14
Pharmachemie B.V. v. Barr Lab’ys, Inc.,
276 F.3d 627 (D.C. Cir. 2002) ....................................................................................................................16
Pulphus v. Ayers,
909 F.3d 1148 (D.C. Cir. 2018)..................................................................................................................13
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) .....................................................................................................................................16
Senate Permanent Subcomm. on Investigations v. Ferrer,
856 F.3d 1080 (D.C. Cir. 2017)..................................................................................................................18
Sossamon v. Texas,
560 F.3d 316 (5th Cir 2009) .......................................................................................................................14
iv
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Sossamon v. Texas,
563 U.S. 277 (2011) .....................................................................................................................................12
Spell v. Edwards,
962 F.3d 175 (5th Cir. 2020) ............................................................................................................. 7, 9, 18
St. Pierre v. United States,
319 U.S. 41 (1943) .......................................................................................................................................11
Staley v. Harris County,
485 F.3d 305 (5th Cir. 2007) ........................................................................................................................ 9
TransUnion LLC v. Ramirez,
141 S. Ct. 2190 (2021) ............................................................................................................................ 6, 11
Troiano v. Supervisor of Elections in Palm Beach Cnty.,
382 F.3d 1276 (11th Cir. 2004) ..................................................................................................................14
Tyson Foods, Inc. v. Bouaphakeo,
577 U.S. 442 (2016) .....................................................................................................................................11
Von Hoffburg v. Alexander,
615 F.2d 633 (5th Cir. 1980) ......................................................................................................................11
Webman v. Fed. Bureau of Prisons,
441 F.3d 1022 (D.C. Cir. 2006)..................................................................................................................12
Yarls v. Bunton,
905 F.3d 905 (5th Cir. 2018) ........................................................................................................................ 7
Statutes
10 U.S.C. § 1552 ...............................................................................................................................................11
James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (“NDAA”),
Pub. L. No. 117-263, § 525, 136 Stat. 2395, 2571-72 (2022) ................................................................... 1
Rules
Federal Rule of Civil Procedure 23 ................................................................................................................. 2
O t h e r A u t h o r it i e s
168 Cong. Rec. H9425, H9441 (Dec. 8, 2022) ............................................................................................ 3
NAVADMIN 083/22, https://perma.cc/YL6UUELQ ...........................................................................10
v
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Sec’y of Def. Mem. (Aug. 24, 2021), https://perma.cc/N759-S758 ..................................................... 3
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INTRODUCTION
On December 23, 2022, the President signed into law the James M. Inhofe National Defense
Authorization Act for Fiscal Year 2023 (“NDAA”). See Pub. L. No. 117-263, § 525, 136 Stat. 2395,
2571-72 (2022). Section 525 of the NDAA directs the Secretary of Defense, within 30 days, to rescind
the August 2021 memorandum requiring vaccination of service members for COVID-19. On January
10, 2023, the Secretary rescinded the mandate as directed. See ECF No. 214-1. The rescission
memorandum prohibits separations based solely on refusal of the COVID-19 vaccine by service
members who sought an exemption from the mandate and directs the Services to “remove any adverse
actions solely associated with denials of such requests.” The memorandum also halts the processing
of religious accommodation requests (“RARs”) for an exemption to the now-defunct mandate.
Following Secretary Austin’s memo, the Navy released NAVADMIN 005/23 and ALNAV 009/23,
which canceled NAVADMIN 190/21 and ALNAV 062/21—the Navy’s implementation of the
Department of Defense’s mandatory COVID-19 vaccination requirement. Plaintiffs’ challenges to
the Department of Defense’s COVID-19 vaccination requirement and the Navy’s implementation of
that requirement are therefore moot, in their entirety, and the case should be dismissed.
PROCEDURAL BACKGROUND
Thirty-five pseudonymous service members in the Naval Special Warfare community filed this
lawsuit in November 2021, alleging that the Department of Defense (DoD) COVID-19 vaccination
requirement and the Navy’s policies implementing that requirement violated the Religious Freedom
Restoration Act (RFRA), the First Amendment, and the Administrative Procedure Act (APA). ECF
No. 1. On January 3, 2022, this Court granted a preliminary injunction barring the Navy from
“applying MANMED § 15- 105([4])(n)(9); NAVADMIN 225/21; Trident Order #12; and
NAVADMIN 256/21 to Plaintiffs,” as well as from “taking any adverse action against Plaintiffs on
the basis of Plaintiffs’ requests for religious accommodation.” ECF No. 66. The Navy appealed and
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sought a partial stay of the injunction insofar as it prevented the Navy from considering Plaintiffs’
vaccination status in making deployment, assignment, and operational decisions. Although the district
court and the Fifth Circuit Court of Appeals denied that relief, the Supreme Court granted the partial
stay the government had requested. Austin v. U.S. Navy SEALs 1-26, 142 S. Ct. 1301 (2022).
On January 24, 2022, Plaintiffs amended their complaint to seek class-wide relief, again
claiming the DoD’s COVID-19 vaccination requirement and the Navy’s policies implementing that
requirement violated RFRA and the First Amendment. ECF No. 84. Pseudonymous Plaintiffs Navy
SEAL 1, Navy SEAL 2, Navy SEAL 3, and Explosive Ordinance Technician 1 were named class
representatives. Id. The other thirty-one pseudonymous Plaintiffs remained parties to the litigation.
Id. Plaintiffs proposed a series of allegedly common questions each concerning the now-defunct Navy
implementation of the DoD COVID-19 vaccine requirement. See id. ¶ 58 a – h; ¶ 59 a – p. Plaintiffs
asserted that the “individual questions, if any, pale in comparison to the numerous common questions
of fact and law presented in this lawsuit.” Id. ¶ 57. Plaintiffs also dropped their APA claim and their
claims against the individual-capacity Defendants. See ECF No. 84.
On March 28, 2022, this Court certified a class of all Navy service members who had submitted
religious-accommodation requests and granted a class-wide preliminary injunction barring the Navy
“from applying MANMED § 15-105([4])(n)(9); NAVADMIN 225/21; Trident Order #12; and
NAVADMIN 256/21” to the class members. ECF No. 140 at 27. This Court found that Plaintiffs
satisfied the requirements of Federal Rule of Civil Procedure 23, because, inter alia, the potential class
members have suffered the same injury arising from the denial or assumed denial of their religious
accommodation request to the COVID-19 vaccine requirement. See id.; see also id. at 17 (“Without
relief, each servicemember faces the threat of discharge and the consequences that accompany it.”).
This Court immediately stayed its own injunction “insofar as it precludes the Navy from
considering [class members’] vaccination status in making deployment, assignment, and other
2
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operational decisions.” ECF No. 140 at 27 (quoting U.S. Navy SEALs 1-26, 142 S. Ct. at 1301). The
government again appealed, and the Fifth Circuit consolidated the two appeals. During the pendency
of the appeal and the district court litigation the challenged requirements were rescinded by statute.
Accordingly, Defendants now move to dismiss this case as moot.
FACTUAL BACKGROUND
A. The DoD Mandate. On August 24, 2021, the Secretary of Defense directed the
Secretaries of the Military Departments to ensure that all members of the Armed Forces were fully
vaccinated against COVID-19. Sec’y of Def. Mem. (Aug. 24, 2021), https://perma.cc/N759-S758.
The Navy subsequently issued orders implementing that requirement. See ECF No. 44-1 at 75-76
(ALNAV 062/21, setting deadlines for vaccination); ECF No. 44-1 at 83-87 (NAVADMIN 225/21,
providing procedures for disciplining and, if necessary, separating service members who refuse
vaccination without an exemption); ECF No. 44-1 at 89-96 (NAVADMIN 256/21, providing for
“temporary reassignment[]” of unvaccinated service members); ECF No. 44-1 at 98-99 (Trident Order
#12, implementing the requirement for Special Warfare personnel); see also ECF No. 44-2 at 122-131
(MANMED § 15-105(4)(n)(9), a general Navy policy, providing that Naval Special Warfare service
members who “refus[e] to receive recommended vaccines … based solely on personal or religious
beliefs are disqualified” from Special Operations duty assignments).
B. The NDAA. On December 23, 2022, the President signed the NDAA into law.
Section 525 directs the Secretary of Defense, within 30 days, to rescind the August 2021 memorandum
requiring vaccination of service members against COVID-19. An explanatory statement in the
Congressional Record notes that DoD “has mechanisms to correct a servicemember’s military record
for discharge due to failure to receive the COVID-19 vaccine” and that “the military departments
have the ability to consider applications for reinstatement of servicemembers who were previously
separated for refusing the vaccine.” See 168 Cong. Rec. H9425, H9441 (Dec. 8, 2022).
3
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On January 10, 2023, the Secretary of Defense rescinded the mandate as directed. ECF No.
214-1. The rescission memorandum directs that currently serving service members who sought an
exemption may not be “separated solely on the basis of their refusal to receive the COVID-19
vaccination” and directs the Services to “update the records of such individuals to remove any adverse
actions solely associated with denials of such requests.” Id.1 It further directs that decisionmakers
should “cease any ongoing reviews” of requests for accommodation from the COVID-19 vaccination
requirement. Id. The Secretary’s memorandum preserved “the ability of Commanders to consider, as
appropriate, the individual immunization status of personnel in making deployment, assignment, and
other operational decisions.” Id.
On January 11, the Navy issued implementing guidance “[c]ancel[ing]” it’s implementation of
the August 2021 vaccination requirement. See Ex. 1 (App. 001-002) (NAVADMIN 005/23 cancelling
NAVADMIN 091/21 and “suspend[ing],” the derivative enforcement policies, NAVADMIN 225/21
and NAVADMIN 256/21). The Navy directed commands to “immediately discontinue
administrative separation processing of Navy Service Members solely for refusing the COVID-19
vaccine, including those with approved separation letters,” and to “immediately suspend any new
adverse administrative actions associated with refusing the COVID-19 vaccine.” Id. And on January
20, the Secretary of the Navy ordered the Navy to “cease any ongoing reviews of current Service
Members’ religious, administrative, or medical accommodation requests solely for exemption from
the COVID-19 vaccine or appeals of denials of such requests,” and he clarified that “[n]o currently
serving Sailor … shall be separated solely on the basis of their failure to receive the COVID-19
1
Former service members administratively discharged on the sole basis that the service member failed
to obey a lawful order to receive a vaccine for COVID-19, “may petition their Military Department’s
Discharge Review Boards and Boards for Correction of Military or Naval Records to individually
review and correct personnel records, including records regarding the characterization of their
discharge.” Id.
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vaccination if they sought an accommodation on religious, administrative, or medical grounds.” Ex.
2 (App. 003-005) (ALNAV 009/23, “cancel[ing]” ALNAV 062/21).2 On February 3, 2023, the Navy
changed the language of MANMED § 15-105(4)(n)(9) to remove any distinction between service
members who are unvaccinated for religious reasons as opposed to medical reasons to align with the
practice previously described by the Force Medical Officer of Naval Warfare Command. Ex. 3 (App.
006-008) (MANMED Change 168 dated Feb. 3, 2023); ECF No. 87 at 36-40. The Commander of the
Naval Special Warfare community had previously rescinded Trident Order #12 on May 23, 2022. Ex.
4 (App. 009-011) (Trident Order #12 Closeout dated May 23, 2022).
On January 30, 2023, the Under Secretary of Defense issued a memorandum titled
“Consolidated Department of Defense Coronavirus Disease 2019 Force Health Protection Guidance
– Revision 4.” Ex. 5 (App. 012-033) (DoD Force Health Protection Guidance (FHPG) of January 30,
2023, Rev. 4). This memorandum updated the Consolidated DoD Coronavirus Disease 2019 Force
Health Protection Guidance. Ex. 6 (App. 034-095) (DoD FHPG, current as of Jan. 30, 2023). Among
other things, the updated guidance rescinds the provision that previously limited travel for those not
fully vaccinated to “mission-critical official travel.” Id. at 47–48. The new travel policies do not
distinguish between those fully vaccinated against COVID-19 and those who are not. Ex. 5 at 2, 4, 5,
7-10, 13-16, 18-19 (App. 14, 16, 17, 19-22, 25-28, 30-31).
C. Plaintiffs. Under the rescission memorandum, neither the named Plaintiffs nor the
class members are subject to the August 2021 DoD COVID-19 vaccine requirement nor the
2
In light of these actions and similar actions taken by the Marine Corps and Coast Guard, the district
court in a related class action challenging the Marine Corps’ rescinded vaccination requirement and a
related putative class action challenging the Coast Guard’s rescinded vaccination requirement stayed
further proceedings until the issue of mootness can be fully briefed. Order, ECF No. 277, Col. Fin.
Mgmt. Off. v. Austin, No. 8:22-cv-1275-SDM-TGW (M.D. Fla. Jan. 20, 2023); Order, ECF No. 216,
Pilot v. Austin, No. 8:22-cv-1278-SDM- TGW (M.D. Fla. Jan. 27, 2023).
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subsequent Navy implementation of that requirement. The 35 pseudonymous Plaintiffs have not had
adverse action taken against them and they have not been subject to involuntary administrative
separation. Ex. 7 (App. 096-102) (Declaration of Gareth J. Healy, (“Healy Decl.”) ¶¶ 8-10). However,
ten of the 35 pseudonymous Plaintiffs had previously chosen to withdraw their religious
accommodation requests and voluntarily separate or retire from the Navy. Healy Decl. ¶¶ 3-4.
Processing for involuntary administrative separation has been permanently halted and no new adverse
actions will be taken against Plaintiffs for failure to receive the COVID-19 vaccine. Healy Decl. ¶ 8.
Similarly, for class members, pursuant to the rescission memorandum, involuntary
administrative separation is permanently halted and any adverse action reflecting that process will be
removed from the record of each of the class members. ECF No. 214-1; Healy Decl. ¶ 8. Any class
member who had a record of past adverse action based solely on COVID-19 vaccine refusal will also
have that action removed from their record. Healy Decl. ¶ 9. No new adverse action based on
COVID-19 vaccine refusal will be taken against class members. Id.
ARGUMENT
I. The Court Should Dismiss This Action as Moot Because the Challenged Vaccination
Requirement Has Been Repealed and No Remaining Relief is Available to Plaintiffs.
“Plaintiffs must maintain their personal interest in the dispute at all stages of
litigation.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021). “Even when a plaintiff has
standing at the outset ‘[t]here must be a case or controversy through all stages of a case.’” Fontenot v.
McGraw, 777 F.3d 741, 747 (5th Cir. 2015) (quoting K.P. v. LeBlanc, 729 F.3d 427, 438 (5th Cir. 2013)).
“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article
III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in
the outcome.” Id. (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citation omitted)).
“Generally, any set of circumstances that eliminates actual controversy after the
commencement of a lawsuit renders that action moot.” Id. (quoting Ctr. for Individual Freedom v.
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Carmouche, 449 F.3d 655, 661 (5th Cir. 2006)). The mootness doctrine “ensures federal courts are only
deciding live cases or controversies.” Spell v. Edwards, 962 F.3d 175, 179 (5th Cir. 2020). Because a
challenge is moot when the court cannot grant effectual relief to the prevailing party, “a case
challenging a [government policy] usually becomes moot if the challenged [policy] has expired or been
repealed.” Id. After all, “[o]nce the law is off the books, there is nothing injuring the plaintiff and,
consequently, nothing for the court to do.” Id. In short, “[n]o matter how vehemently the parties
continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the
dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.”
Yarls v. Bunton, 905 F.3d 905, 909 (5th Cir. 2018) (quotation marks omitted).
Consistent with these principles, the Fifth Circuit and other circuits have repeatedly confirmed
that when a statute or regulation is amended or repealed after plaintiffs bring a lawsuit challenging the
legality of that statute or regulation, mootness is “the default.” Freedom From Religion Found., Inc. v.
Abbott, No. 21-50469, 2023 WL 565082, at *4 (5th Cir. Jan. 27, 2023); Houston Chronicle Publ’g Co. v.
League City, 488 F.3d 613, 619 (5th Cir. 2007) (“It goes without saying that disputes concerning
repealed legislation are generally moot.”); Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546, 564 (5th
Cir. 2006) (“[S]tatutory changes that discontinue a challenged practice are ‘usually enough to render a
case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is
dismissed.’” (citation omitted)); McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004) (“Suits regarding
the constitutionality of statutes become moot once the statute is repealed.”); Johnson v. Mississippi, 586
F.2d 387, 388 (5th Cir. 1978) (per curiam) (“[T]he enactment of a superseding statute which satisfies
all the principles sought in an attack on the prior statute simply moots the case.”); see also, e.g., Keister v.
Bell, 29 F.4th 1239, 1250 (11th Cir. 2022) (“[W]hen a government fully repeals a challenged law, a case
challenging that law is almost surely moot.”), pet. for cert. filed, No. 22-388 (U.S. Oct. 25, 2022); Bd. of
Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1198 (9th Cir. 2019) (“[T]he repeal,
7
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amendment, or expiration of challenged legislation is generally enough to render a case moot and
appropriate for dismissal.”); Am. Bar Ass’n v. FTC, 636 F.3d 641, 643 (D.C. Cir. 2011) (“It is well
established that a case must be dismissed as moot if new legislation addressing the matter in dispute
is enacted while the case is still pending.”); Log Cabin Republicans v. United States, 658 F.3d 1162, 1166–
68 (9th Cir. 2011) (finding moot a challenge to the military’s don’t-ask-don’t-tell policy when the policy
was repealed by statute after judgment).
The Court should follow that ordinary practice here. The NDAA is intervening legislation
that terminates the challenged vaccination requirement, rendering moot Plaintiffs’ requests for
declaratory relief and injunctive relief barring enforcement of that requirement. The NDAA as
implemented through the rescission memorandum gives Plaintiffs the relief sought in their complaint.
Under the terms of the rescission, Defendants can no longer enforce the August 2021 DoD
COVID-19 requirement nor the Navy’s implementation of that requirement with respect to the
named Plaintiffs or any member of the class, nor may Defendants take adverse action against them
based on that defunct policy. ECF No. 214-1. The declaratory and injunctive relief sought by
Plaintiffs is thus no longer available, as there is no requirement from which an exemption can be
sought, or a determination made by the Defendants. Indeed, the Secretary’s rescission memorandum
halts the processing of requests for exemption to the now-defunct mandate as there is no longer a
requirement to be exempted from. Id.
More specifically, the operative complaint requests that the Court issue a declaration that the
“COVID-19 Vaccine Mandate violates Plaintiffs’ and the class members’ rights under the First
Amendment. . . . and the [RFRA].” ECF No. 84 at 29-30. As explained above, the mandate has been
rescinded and the religious accommodation process discontinued, so any opinion as to either would
be advisory and impermissible. The complaint also requests a preliminary and permanent injunction
“prohibiting” Defendants from “enforcing the COVID-19 Vaccine Mandate as to the Plaintiffs and
8
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the class members[.]” Id. at 30. But the rescission itself provides such relief as the Navy is already
prohibited from enforcing the prior mandate against Plaintiffs and the class members.
As to Plaintiffs’ causes of action, they also seek to have the DoD COVID-19 vaccination
requirement and certain Navy policies involved in the implementation of that requirement enjoined
and declared unlawful as to the 35 Plaintiffs and as to the class—NAVADMIN 190/21, ALNAV
062/21, NAVADMIN 225/21, NAVADMIN 256/21, Trident Order #12, and MANMED § 15-
105(3)(n)(9). ECF No. 84 at 20-29; ECF No. 104 at 2-3. The Navy has expressly cancelled
NAVADMIN 190/21 and ALNAV 062/21, and the derivative enforcement policies—NAVADMIN
225/21 and NAVADMIN 256/21—are similarly withdrawn in accordance with the direction of the
Secretary of Defense. Ex. 1 & 2 (App. 001-005). Trident Order #12 was previously withdrawn and
cancelled. Ex. 4 (App. 009-011). The specific language of MANMED § 15-105(4)(n)(9) that Plaintiffs
challenge, see ECF No. 84 ¶¶ 51, 75, 111, has been rescinded. Ex. 3 (App. 006-008). And that
requirement no longer applies to vaccination against COVID-19. There is accordingly no live dispute
regarding any of the policies challenged in this litigation. The Court therefore can no longer provide
plaintiffs with “any effectual relief.” Spell, 962 F.3d at 179 (quoting Knox v. Serv. Emps. Int’l Union, Local
1000, 567 U.S. 298, 307 (2012)). To the extent Plaintiffs seek an injunction against other possible
future adverse acts, they do not have standing to seek relief where there is no “real and immediate
threat” of future injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (“The equitable remedy
is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is
no showing of any real or immediate threat that the plaintiff will be wronged again . . . .”); see also Staley
v. Harris County, 485 F.3d 305, 309 (5th Cir. 2007) (en banc).
Plaintiffs’ only remaining request, besides a request for attorneys’ fees, includes a catch-all
request for “relief under law or equity to which Plaintiffs and the class members may be entitled.”
ECF No. 84 at 30. The Secretary’s rescission memorandum confirms that the 25 pseudonymous
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service member Plaintiffs remaining in the Navy3 will not be discharged based on their previous refusal
to comply with the vaccination requirement and that no new adverse actions for declining the
COVID-19 vaccination will be issued to them. Healy Decl. ¶ 4. And because no adverse action was
ever entered into the records of any of the pseudonymous Plaintiffs, no adverse action need be
removed from their records. Id. ¶¶ 8-10; see also ECF No. 66 at 4 (acknowledging that at the time of
the issuance of the initial preliminary injunction “[t]he Navy ha[d] made no final determinations on
appeal.”). As to Plaintiff class members, they also will not be discharged based on their previous
refusal to comply with the vaccination requirement and no new adverse actions for declining COVID-
19 vaccination will be issued to them. Healy Decl. ¶ 4. Further, any preexisting adverse action issued
based solely on a refusal to comply with the vaccination requirement—if there is any—will be removed
from their records. Id. ¶¶ 8-10; see also NAVADMIN 083/22, https://perma.cc/YL6UUELQ (Navy
policy immediately implementing the district court’s class-wide preliminary injunction, “suspend[ing]
separation processing and adverse administrative consequences of COVID-19 vaccine refusal for
Navy service members who submitted requests for religious accommodation from the COVID-19
vaccine requirement”).4 Accordingly, Plaintiffs have no further relief to be gained in law or equity by
3
Ten of the pseudonymous Plaintiffs withdrew their RARs and voluntarily retired or separated from
the Navy during the pendency of this litigation. Healy Decl. ¶¶ 3-4.
4
Plaintiffs claim that because NAVADMIN 005/23—which immediately paused separations and
adverse action against Navy service members solely for refusing the COVID-19 vaccine—refers only
to “new” adverse actions the Navy does not intend to remove prior adverse action from class member
records. ECF No. 274 at 3. But there is no question that the Navy must do so. The Secretary of
Defense has directed the military Services, including the Navy, to “remove any adverse actions solely
associated with denial of [requests for accommodation on religious, administrate, or medical grounds],
including letters of reprimand.” ECF No. 214-1 at 1. And Plaintiffs ignore that NAVADMIN 005/23
further provides that the Navy will issue supplemental guidance regarding implementation of the
Secretary’s direction. Thus, Plaintiffs’ request for the Court to issue an injunction to the same effect
seeks a remedy that they have already obtained from the Secretary of Defense. That request is
therefore moot. See Fontenot, 777 F.3d at 747 (“Because there remains no live controversy between
the parties . . . the injunction they seek would be meaningless.”).
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pursuing this lawsuit challenging the now-rescinded mandate, and thus “lack any legally cognizable
interest in the outcome.” Fontenot, 777 F.3d at 747 (citation omitted); see also St. Pierre v. United States,
319 U.S. 41, 42 (1943) (“A federal court is without power to decide moot questions or to give advisory
opinions which cannot affect the rights of the litigants in the case before it.”).5
II. Plaintiffs Cannot Challenge Speculative Assignment, Deployment, and Operational
Decisions
In Plaintiffs’ supplemental memorandum to the Fifth Circuit they claimed that the litigation is
not moot because the Secretary’s rescission memorandum allows military commanders to consider
vaccination status when making “deployment, assignment, and other operational decisions[.]” ECF
No. 274 at 3. Plaintiffs speculate that this provision might injure them in the future and postulate
three potential injuries to unidentified Plaintiffs and class members: “unnecessarily restricting travel
necessary for their jobs, demanding repayment of educational expenses and previously awarded and
rightfully earned bonuses, and refusing to allow participation in meaningful training opportunities and
operational assignments.” Id. at 4. But speculation that a future injury might occur cannot provide a
basis for relief for an individual Plaintiff or the class. See Lyons, 461 U.S. at 111; TransUnion, 141 S. Ct.
at 2208 (“Article III does not give federal courts the power to order relief to any uninjured plaintiff,
class action or not.”) (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 466 (2016) (Roberts, C.J.,
concurring))). In any event, the travel restrictions Plaintiffs complain of have also been rescinded.
5
In seeking class certification Plaintiffs previously asserted that the “individual questions, if any, pale
in comparison to the numerous common questions of fact and law presented in this lawsuit.” ECF
No. 84 ¶ 57. In addition to such claims being moot, to the extent that Plaintiffs seek to remedy
individual personnel actions now, they must exhaust administrative remedies before doing so. The
Fifth Circuit has long required that a plaintiff first exhaust all “available intraservice corrective
measures” before bringing to federal court claims implicating “internal military affairs.” Hodges v.
Callaway, 499 F.2d 417, 419–20 (5th Cir. 1974) (quoting Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir.
1971)); see also Von Hoffburg v. Alexander, 615 F.2d 633, 637 (5th Cir. 1980) (collecting cases). And
although this Court previously found that the Navy’s religious accommodation process was futile there
is no reason to suggest that the entirely separate corrections board process is futile. See 10 U.S.C. §
1552.
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On January 30, 2023, the Under Secretary of Defense issued a memorandum titled “Consolidated
Department of Defense Coronavirus Disease 2019 Force Health Protection Guidance – Revision 4.”
Ex. 5 (App. 012-033) (DoD Force Health Protection Guidance (FHPG) of January 30, 2023, Rev. 4).
This memorandum updated the Consolidated DoD Coronavirus Disease 2019 Force Health
Protection Guidance. Ex. 6 (App. 034-095) (DoD FHPG, current as of Jan. 30, 2023). Among other
things, the updated guidance rescinds the provision that previously limited travel for those not fully
vaccinated to “mission-critical official travel.” Id. at 47–48. The new travel policies do not distinguish
between those fully vaccinated against COVID-19 and those who are not. Ex. 5 at 2, 4, 5, 7-10, 13-
16, 18-19 (App. 14, 16, 17, 19-22, 25-28, 30-31) (striking distinctions between vaccinated and
unvaccinated service members).
Plaintiffs’ only other speculation as to how consideration of vaccination status when making
deployment, assignment, and other operational decisions may cause them injury involves a
hypothetical claim for monetary benefits. Again, they have not identified an actual Plaintiff who has
made such a claim. But, even if they had, such a claim would likely be subject to Tucker Act
jurisdiction and limited to missed payments for work actually performed. See Dehne v. United States,
970 F.2d 890 (Fed. Cir. 1992); see also Garcia v. United States, 666 F.2d 960, 966 (5th Cir. 1982) (“The
Constitution does not waive the Government’s sovereign immunity in a suit for damages”); Davila v.
Gladden, 777 F.3d 1198, 1210 (11th Cir. 2015) (“RFRA does not therefore authorize suits for money
damages against officers in their official capacities.”); Webman v. Fed. Bureau of Prisons, 441 F.3d 1022,
1028 (D.C. Cir. 2006) (Tatel, J., concurring) (internal citation omitted) (“RFRA’s purpose does not
‘produce evidence of a waiver’ of sovereign immunity for damages claims, much less evidence
unequivocal enough to satisfy the strict standard for waivers of sovereign immunity.”) cf. Sossamon v.
Texas, 563 U.S. 277 (2011) (holding that identical “appropriate relief” language in the related statute
RLUIPA did not waive states’ sovereign immunity from money damages).
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Furthermore, any hypothetical future dispute about a service member’s assignments would
need to be assessed based on the facts and circumstances of the particular service member’s specific
religious-liberty claim, given the legally required narrow tailoring. Cf. Brown v. Collier, 929 F.3d 218,
230 (5th Cir. 2019) (requiring “case-by-case” adjudication of religious-liberty claims). Any such
questions, should they ever actually arise, are plainly not ripe for this Court’s review. See, e.g., Ohio
Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732-33 (1998) (explaining that the “ripeness requirement”
serves “to prevent the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies” and to prevent unnecessary
“judicial interference” (quoting Abbott Lab’ys v. Gardner, 387 U.S. 136, 148-49 (1967))); Aetna Life Ins.
Co. of Hartford v. Haworth, 300 U.S. 227, 241 (1937) (providing that a justiciable dispute must “admit[]
of specific relief through a decree of a conclusive character” and may not ask a court to “advis[e] what
the law would be upon a hypothetical state of facts”). Hypothetical disputes about the extent to which
a specific service member’s decision to remain unvaccinated might or might not affect an assignment,
deployment or other military operational decision cannot resuscitate the moot controversy here.6
III. The Voluntary Cessation Exception Does Not Apply.
Plaintiffs also assert that the NDAA and subsequent rescission memorandum does not moot
the litigation because the voluntary cessation exception applies. See ECF No. 274 at 5-7. But here
Defendants’ cessation of the vaccination requirement was not voluntary, as Plaintiffs appear to
6
Additionally, military assignment, deployment and operational decisions are not “susceptible to
judicial correction” in light of well-established principles of judicial noninterference with core military
decision making, Pulphus v. Ayers, 909 F.3d 1148, 1154 (D.C. Cir. 2018); see U.S. Navy SEALs 1-26,
142 S. Ct. at 1301 (partial stay order); id. at 1302 (Kavanaugh, J., concurring) (explaining that “the
‘complex, subtle, and professional decisions as to the composition, training, equipping, and control of
a military force are essentially professional military judgments’” and that “it is ‘difficult to conceive of
an area of governmental activity in which the courts have less competence’” (quoting Gilligan v. Morgan,
413 U.S. 1, 10 (1973))); Orloff v. Willoughby, 345 U.S. 83, 93 (1953); Order, Navy SEAL 1 v. Austin, No.
22-10645 (11th Cir. Mar. 30, 2022).
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concede. Id. at 5. Defendants “most assuredly did not alter [their own course] in order to avoid
litigation.” Am. Bar Ass’n, 636 F.3d at 648. Rather, intervening legislation—in the form of the
NDAA—required DoD to rescind the vaccination mandate. See id. (finding voluntary cessation
exception did not apply where “intervening legislation simply nullified the [agency’s challenged] policy
statement”). The NDAA “specifically forbids the kind of [action] challenged in this suit” and “[t]he
cessation of the [vaccination requirement] was therefore not voluntary.” Klayman v. Obama, 759 F.
App’x 1, 3 (D.C. Cir. 2019); see also J. T. v. District of Columbia, 983 F.3d 516, 523 (D.C. Cir. 2020) (“‘The
voluntary-cessation doctrine has no apparent relevance’ where the ‘source of cessation . . . lies beyond
the unilateral legal authority of any of the named defendants.’” (quoting Guedes v. ATF, 920 F.3d 1, 15
(D.C. Cir. 2019) (per curiam)).
Second, even if Congress’s enactment of the NDAA could be considered a voluntary change
on the part of Defendants, the Fifth Circuit has held that “courts are justified in treating a voluntary
governmental cessation of possibly wrongful conduct with some solicitude, mooting cases that might
have been allowed to proceed had the defendant not been a public entity.” Sossamon v. Texas, 560 F.3d
316, 325 (5th Cir 2009). Indeed, despite the burden typically imposed in instances of voluntary
cessation, “government actors in their sovereign capacity and in the exercise of their official duties are
accorded a presumption of good faith because they are public servants, not self-interested private
parties. Without evidence to the contrary, [the Fifth Circuit] assume[s] that formally announced
changes to official governmental policy are not mere litigation posturing.” Id.; see also, e.g., People for the
Ethical Treatment of Animals v. U.S. Dep’t of Agric., 918 F.3d 151, 157–59 (D.C. Cir. 2019) (recognizing
that an unambiguous representation by an agency official would be entitled to presumption of
regularity and could satisfy burden for voluntary cessation purposes); Troiano v. Supervisor of Elections in
Palm Beach Cnty., 382 F.3d 1276, 1283 (11th Cir. 2004) (“[W]hen the defendant is not a private citizen
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but a government actor, there is a rebuttable presumption that the objectionable behavior
will not recur.”).
Plaintiffs have provided no basis to suggest that the rescission of the vaccine requirement is
pretextual or that the same or a substantially similar requirement will recur. On the contrary,
Defendants have gone beyond what was required by Congress in the NDAA, for example, requiring
the records of current service members who sought an exemption to be updated. Plaintiffs provide
no evidence that the challenged vaccine requirement will be reinstated, that they will once again be
subject to that requirement, or that any accommodation they seek regarding a substantially similar new
requirement would be denied. Without direct evidence to the contrary, “it is remote, and indeed
unrealistically speculative, that these defendants will ever again expose the plaintiffs to the claimed
injury that prompted this lawsuit. The very process of the enactment of [the new law] by the state
legislature and governor, combined with the presumption of good faith that we afford government
actors, overcomes concerns of voluntary cessation.” Amawi v. Paxton, 956 F.3d 816, 821 (5th Cir.
2020). For these reasons, Plaintiffs cannot overcome the presumption that the NDAA and rescission
memorandum moot this case. The “‘challenged practice’” has been “discontinued,” and “a live
controversy no longer exists.” Freedom From Religion Foundation, 2023 WL 565082, at *5.
IV. The Capable-of-Repetition-Yet-Evading-Review Exception Does Not Apply.
The mootness exception for issues capable of repetition yet evading review does not apply
here for similar reasons. Under that exception, cases that would otherwise be moot are saved from
mootness “if ‘(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.’” Empower Texans, Inc. v. Geren, 977 F.3d 367, 370 (5th Cir.
2020) (quoting Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016)). This exception applies
“only in exceptional situations.” Id. (quoting Kingdomware, 579 U.S. at 170). Plaintiffs—as the party
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seeking to assert the exception—bear the burden of showing that it applies. See id.
Plaintiffs summarily assert that “because the vaccine mandate was rescinded during the
pendency of this lawsuit, the first element is satisfied.” ECF No. 274 at 7. To the contrary, the mere
fact that a challenged action ends “during the pendency of [a] lawsuit,” id., does not render that action
“too short to be fully litigated,” Geren, 977 F.3d at 370 (citation omitted). The entire mootness doctrine
would be rendered obsolete if that were the standard. Indeed, mootness is only relevant when the
challenged action ends “during the pendency of the lawsuit.” ECF No. 274 at 7. Plaintiffs thus fail
to establish their burden on this first element of the exception.
Nor could Plaintiffs have carried that burden regardless. The relevant inquiry under the
evading-review prong is “whether ‘the challenged activity is by its very nature short in duration, so that it
could not, or probably would not, be able to be adjudicated while fully live.’” Pharmachemie B.V. v.
Barr Lab’ys, Inc., 276 F.3d 627, 633 (D.C. Cir. 2002) (quoting LaRouche v. Fowler, 152 F.3d 974, 978
(D.C. Cir. 1998)); see also, e.g., Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Eng’rs, 217 F.3d 393, 399
(5th Cir. 2000) (considering whether the type of action challenged was “inherently capable of evading
review” (emphasis added)). A vaccination requirement is, by its nature, not short in duration. Cf.
Moore v. Hosemann, 591 F.3d 741, 744 (5th Cir. 2009) (“Election controversies are paradigmatic
examples of cases that cannot be fully litigated before the particular controversy expires.”).
Plaintiffs make an inapt comparison between the DoD’s decision to add COVID-19 to the
list of required vaccinations and the Governor of New York’s COVID-19 lockdown orders. ECF
No. 274 at 7 (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020)). But Plaintiffs’
attempted comparison only underscores the differences between a vaccination requirement and the
types of challenged actions that are “inherently capable of evading review.” Bayou Liberty Ass’n, Inc.,
217 F.3d at 399. In particular, the Supreme Court in Roman Catholic Diocese of Brooklyn held that the
case was not moot because the “[t]he Governor [of New York] regularly changes the [COVID-19
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threat] classification of particular areas without prior notice,” including eight times within a month-
long period. 141 S. Ct. at 68. Here, in contrast, the vaccination mandate lasted approximately a year
and a half, and ended only when—in Plaintiffs’ words—“Congress ordered” Defendants “to rescind
the [vaccination] mandate.” ECF No. 274 at 5. Thus, the vaccination requirement is not the kind of
action that is “in its duration too short to be fully litigated prior to cessation or expiration.” Geren,
977 F.3d at 370 (citation omitted).
Nor do Plaintiffs present any evidence that they will “be subject to the same action again.” Id.
(citation omitted). To establish such evidence, Plaintiffs “must show either a ‘demonstrated
probability’ or a ‘reasonable expectation’” that they will be subject to the same challenged COVID-19
vaccination requirement again. Libertarian Party v. Dardenne, 595 F.3d 215, 217 (5th Cir. 2010) (quoting
Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002)). Yet Plaintiffs argue only that the NDAA does not
expressly prohibit the reinstatement of “a new mandate” in the future. ECF No. 274 at 8. This
speculation cannot carry Plaintiffs’ burden. “A ‘mere physical or theoretical possibility’ is not
sufficient to satisfy this prong of the exception.” Libertarian Party, 595 F.3d at 217 ((quoting Murphy v.
Hunt, 455 U.S. 478, 482 (1982)). “At most, [Plaintiffs’] evidence shows that the Secretary [might] have
an opportunity to act in the same allegedly unlawful manner in the future; however, it does not show
a reasonable probability that the Secretary will act in that manner if given the opportunity.” Id.; see also
Am. Bar Ass’n, 636 F.3d at 647 (“It does not matter that the [agency] might hereafter . . . promulgate
new rules” because “[t]hese are merely hypothetical possibilities,” and “possibilities regarding regulations
and enforcement policies that do not presently exist” are “not enough to give rise to a live dispute.”);
see also Lopez v. City of Houston, 617 F.3d 336, 340 (5th Cir. 2010) (requiring more than “merely a
theoretical possibility” that the allegedly wrongful conduct would reoccur).
Plaintiffs’ speculation about the uncertain future of COVID-19 is similarly insufficient to
justify excepting this case from the mootness doctrine. See ECF No. 274 at 8 (alleging that
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“Defendants may issue a new mandate if they deem the risk of COVID-19 transmission too high”).
Indeed, the Fifth Circuit has already explained that “no one knows what the future of COVID-19
holds” and it is thus “speculative, at best, that the [government] might reimpose [a particular COVID-
19] restriction or a similar one.” Spell, 962 F.3d at 180 (holding moot a challenge to Louisiana’s
rescinded stay-at-home orders, especially given that “[t]he trend in Louisiana has been to reopen the
state, not to close it down”); see also Long v. Jayton-Girard Indep. Sch. Dist., No. 5:21-CV-111-H, 2021
WL 7906835, at *4 (N.D. Tex. Sept. 3, 2021) (holding moot a challenge to school district’s rescinded
mask mandate because “the mere possibility of COVID-19 worsening or COVID-19 policies being
re-imposed is insufficient to satisfy the ‘reasonable expectation’ requirement of the second prong”).
Thus, Plaintiffs’ speculation that DoD might reimpose a COVID-19 vaccination mandate in the future
does not exempt this case from mootness.
Even if the military were to subject Plaintiffs to a new COVID-19 vaccination requirement,
there would be no “reasonable expectation” that any such requirement would be “the same” as the
now-rescinded, challenged COVID-19 vaccination requirement. Libertarian Party, 595 F.3d at 217. If
DoD or the Navy were to impose a different vaccination requirement—for example, one applicable
to service members who are about to deploy to a particular location—then any RFRA challenge to
that policy, and to the imposition of discipline for noncompliance with such a requirement, would
raise different issues than in this case. In that circumstance, even if Plaintiffs themselves were subject
to a new or different requirement in the future, “‘the same parties’” would not be “‘engag[ing] in
litigation over the same issues’”—a precondition for the capable-of-repetition exception to apply.
Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080, 1088 (D.C. Cir. 2017)(citation
omitted).
Plaintiffs fail to establish either that the vaccination requirement is “in its duration too short
to be fully litigated prior to cessation or expiration,” or that there exists any “reasonable expectation
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that [they will] be subject to the same [challenged COVID-19 vaccination requirement] again.’” Geren,
977 F.3d at 370.
CONCLUSION
For the foregoing reasons, the Court should dismiss Plaintiffs’ complaint as moot.
Dated: February 6, 2023 Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
Civil Division
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Branch Director
Federal Programs Branch
/s/Andrew E. Carmichael
ANDREW E. CARMICHAEL (VA Bar. No. 76578)
AMY E. POWELL
Senior Trial Counsel
STUART J. ROBINSON
Senior Counsel
ZACHARY A. AVALLONE
COURTNEY D. ENLOW
LIAM C. HOLLAND
CASSANDRA M. SNYDER
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 514-3346
Fax: (202) 616-8470
Email: Andrew.e.carmichael@usdoj.gov
Counsel for Defendants
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