Plaintiffs' Response to Notice of Supplemental Authority — U.S. Navy SEALs 1-3 v. Austin (Dec. 14, 2023)

Summary

Plaintiffs' Response to Defendants' Notice of Supplemental Authority, Document 261, filed December 14, 2023, in Case No. 4:21-cv-01236-O in the U.S. District Court for the Northern District of Texas, Fort Worth Division. The caption names U.S. Navy SEALs 1-3 and other plaintiffs against Lloyd J. Austin, III, and others. The response argues that the Supreme Court's decision granting the Government's petition for vacatur in Kendall v. Doster, No. 23-154, does not confirm that the Court should dismiss this case as moot. It states that a live controversy still exists because the effects of the Mandate and the discriminatory treatment of Class Members still linger, and that the challenged conduct is capable of repetition yet evades review. The response is signed /s/ Danielle A. Runyan.

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 Case 4:21-cv-01236-O Document 261 Filed 12/14/23                  Page 1 of 4 PageID 7921



                            UNITED STATES DISTRICT COURT
                             NORTHERN DISTRICT OF TEXAS
                                FORT WORTH DIVISION

 U.S. NAVY SEALs 1-3; on behalf of
 themselves and all others similarly situated;
 U.S. NAVY EXPLOSIVE ORDNANCE
 DISPOSAL TECHNICIAN 1, on behalf of
 himself and all others similarly situated; U.S.
 NAVY SEALS 4-26; U.S. NAVY SPECIAL
 WARFARE COMBATANT CRAFT
 CREWMEN 1-5; and U.S. NAVY DIVERS
 1-3,
                        Plaintiffs,
                                                             Case No. 4:21-cv-01236-O
        v.

 LLOYD J. AUSTIN, III, in his official
 capacity as United States Secretary of
 Defense; UNITED STATES
 DEPARTMENT OF DEFENSE; CARLOS
 DEL TORO, in his official capacity as
 United States Secretary of the Navy,

                        Defendants.


               PLAINTIFFS’ RESPONSE TO DEFENDANTS’ NOTICE OF
                         SUPPLEMENTAL AUTHORITY

       The Supreme Court’s decision granting the Government’s petition for vacatur in Kendall

v. Doster, No. 23-154, 2023 WL 8531840 (Mem) (U.S. Dec. 11, 2023) in no way confirms that

this Court should dismiss this case as moot. The Supreme Court determined only that “the case is

remanded to the United States Court of Appeals for the Sixth Circuit with instructions to direct the

District Court to vacate as moot its preliminary injunctions.” Id. (emphasis added).

       On the issue of vacatur, the distinction between Doster and this case is that the “Sixth

Circuit affirmed the district court’s preliminary injunction orders and entered judgment” before

Congress enacted the Defense Authorization Act for Fiscal Year 2023 (NDAA), Pub L. No. 117-
 Case 4:21-cv-01236-O Document 261 Filed 12/14/23                      Page 2 of 4 PageID 7922



263, 136 Stat. 2395, which the President signed into law on December 23, 2022, and then denied

the Government’s subsequent request for rehearing “for the limited purpose of requesting that the

court vacate the preliminary injunctions as moot.” Dkt. 260; Doster v. Kendall, 54 F.4th 398 (6th

Cir. 2022). In this case, however, the Fifth Circuit already dismissed the “interlocutory appeal as

moot because the Navy’s vaccine policies challenged here have been rescinded and because no

exception to mootness applies.” U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 676 (5th Cir. 2023).

The Fifth Circuit then further determined that “[t]here is no need to vacate the preliminary

injunctions because they no longer have any practical effect on the parties. ‘[I]f the case remains

alive in the district court, it is sufficient to dismiss the appeal without directing that the injunction

order be vacated.’” Id.

        As for the remainder of this case, for the reasons stated in Plaintiffs’ September 12, 2023

supplemental briefing to this Court, while an argument that there is still a need for injunctive relief

against the Mandate itself may be foreclosed, a live controversy still exists because (1) the effects

of the Mandate and the discriminatory treatment the Class Members are subject to because of the

Mandate still linger, and (2) even if no further harm to Plaintiffs was occurring, Defendants’

challenged conduct is capable of repetition yet evades review. Dkt. 253. The Supreme Court’s

decision granting the Government’s petition for vacatur in Doster has no practical effect on these

issues that must still be resolved by this Court.




                                                    1
 Case 4:21-cv-01236-O Document 261 Filed 12/14/23                  Page 3 of 4 PageID 7923




Respectfully submitted this 14th day of December, 2023.



 /s/ Danielle A. Runyan                           HEATHER GEBELIN HACKER
 KELLY J. SHACKELFORD                               Texas Bar No. 24103325
   Texas Bar No. 18070950                         ANDREW B. STEPHENS
 JEFFREY C. MATEER                                  Texas Bar No. 24079396
   Texas Bar No. 13185320                         HACKER STEPHENS LLP
 HIRAM S. SASSER, III                             108 Wild Basin Road South, Suite 250
   Texas Bar No. 24039157                         Austin, Texas 78746
 DAVID J. HACKER                                  Tel.: (512) 399-3022
   Texas Bar No. 24103323                         heather@hackerstephens.com
 MICHAEL D. BERRY                                 andrew@hackerstephens.com
   Texas Bar No. 24085835
 DANIELLE A. RUNYAN                               Attorneys for Plaintiffs
   Texas Bar No. 24134548
 HOLLY M. RANDALL
    Texas Bar No. 24128002
 FIRST LIBERTY INSTITUTE
 2001 W. Plano Pkwy., Ste. 1600
 Plano, Texas 75075
 Tel: (972) 941-4444
 jmateer@firstliberty.org
 hsasser@firstliberty.org
 dhacker@firstliberty.org
 mberry@firstliberty.org
 drunyan@firstliberty.org
 hrandall@firstliberty.org




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 Case 4:21-cv-01236-O Document 261 Filed 12/14/23                Page 4 of 4 PageID 7924



                                   CERTIFICATE OF SERVICE

       I hereby certify that on December 14, 2023, I electronically filed the foregoing document

through the Court’s ECF system and will serve a copy on each of the Defendants according to

the Federal Rules of Civil Procedure.



                                            /s/ Danielle A. Runyan
                                            DANIELLE A. RUNYAN




                                               3


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