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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NA VY SEALs 1-26, et al.,
§
§
§
§
Plaintiffs,
EXHIBIT A
v.
§ Civil Action No. 4:21-cv-01236-O
§
LLOYD J. AUSTIN, III, et al.,
§
§
Defendants.
§
ORDER
On July 6, 2023, the United States Court of Appeals for the Fifth Circuit issued its decision
on the preliminary injunctions previously entered by this Court. U.S. Navy Seals 1-26 v. Eiden, 72
F. 4th 666 (5th Cir. 2022). In light of that decision, this Court deferred ruling on Defendants'
Assertion ofMootness (ECF No. 221) and ordered additional cross-briefing on three subjects: (1)
"the continued viability of any arguments previously raised before this Court and explicitly
addressed by the Fifth Circuit;" (2) "the continued viability of any arguments previously raised
before this Court and not explicitly addressed by the Fifth Circuit;" and (3) "any new arguments
relating to the issue of mootness which have not heretofore been presented to the Court."1 Both
parties filed the requested briefing (ECF Nos. 253-54) and responses (ECF Nos. 256-57)
addressing these subjects. The parties also provided comments on recent authority from the United
States Supreme Court (ECF Nos. 260-61).
Having considered the briefing and the applicable law-including recent Supreme Court
authority-the Court determines that this case is not moot. Accordingly, the Court GRANTS in
part and DENIES in part Defendants' Assertion of Mootness (ECF No. 221). Plaintiffs' claim
for injunctive relief prohibiting Defendants from enforcing the Mandate itself is MOOT due to
1 Aug. 14, 2023 Order, ECF No. 248.
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rescission of the challenged conduct. However, Plaintiffs' claims arising out of the broader vaccine
accommodations policy may proceed. The parties SHALL submit a joint report indicating their
proposal for how this case should expeditiously proceed to final resolution no later than
February 28, 2024.
I.
BACKGROUND
This case was filed more than two years ago in the middle of the COVID-19 pandemic. 2
As one of the first challenges to the Department of Defense's COVID-19 vaccine mandate ( the
"Mandate") multiple servicemembers in the Navy ("Plaintiffs" or "Class Members") alleged
violations of the First Amendment, the Religious Freedom Restoration Act ("RFRA"), and the
Administrative Procedure Act ("APA"). 3 This case has already made its way up to the United
States Supreme Court for interlocutory review and back down to this Court. At this point, the facts
are well-known, and the Court will not repeat them at length here. Most relevant to the mootness
issue now before the Court is the procedural history following the initial appeal of the preliminary
injunction and the broader landscape of military vaccine cases.
A. Procedural History
After this Court granted a preliminary injunction-which enjoined the Navy from applying
the Mandate against Plaintiffs and further prohibited Secretary of Defense Lloyd Austin, the
United States Department of Defense, and Secretary of the Navy Carlos Del Toro ( collectively,
"Defendants" or the "Navy") from taking adverse action against Plaintiffs on account of their
requests for religious accommodation4-the Navy sought a stay of the preliminary injunction
pending the appeal. 5 The Fifth Circuit denied Defendants' request. U.S. Navy Seals 1-26 v. Eiden,
2 Pis.' Comp!., ECF No. 1.
3 Id. at 36-37; Pis.' Am. Comp!. 29-30, ECF No. 84.
4 Jan. 3, 2022 Order on Prelim. Inj., ECF No. 66.
5 Defs.' Notice of Appeal, ECF No. 82.
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27 F. 4th 336, 353 (5th Cir. 2022) (per curiam). But the Supreme Court ultimately granted in part
the requested stay "insofar as it preclude[d] the Navy from considering ... vaccination status in
making deployment, assignment, and other operational decisions." Austin v. U.S. Navy Seals 1-26,
1 42 S. Ct. 1301, 1301 (2022) (mem.). Following the Supreme Court's partial stay of the injunction,
this Court granted Plaintiffs' motion to certify a class consisting of "all Navy servicemembers "
and extended to that class a second preliminary injunction prohibiting the same policies named in
the first injunction.
6 Once again, the Navy appealed both the second injunction and the class
certification.
7 The Fifth Circuit consolidated both appeals. U.S. Navy SEALS 1-26 v. Eiden, No.
22-10077, at *l (5th Cir. Jun. 7, 2022).
Before the Fifth Circuit could hear oral argument, President Biden signed into law the
James M. Inhofe National Defense Authorization ACT ("NDAA ") that directed "the Secretary of
Defense [to] rescind the mandate that members of the Armed Forces be vaccinated against
COVID-19." NDAA, Pub. L. No. 117-263, § 525 (2022). Secretary Austin subsequently rescinded
the Mandate. U.S. Navy SEALs 1-26, 72 F.4th at 671. And, the next day, Secretary Del Toro
likewise rescinded the Navy's policies implementing the Mandate. Id. After oral argument, the
Navy-as well as the Department of Defense-enacted additional policies that eliminated
remaining distinctions based on a servicemember's COVID-19 vaccination status. Id.
Due to these events, the Fifth Circuit determined that the consolidated interlocutory appeals
were moot. Id. at 669. The Fifth Circuit emphasized that its conclusion aligned with other circuit
dismissals of similar cases as moot. Id. However, in dismissing the interlocutory appeals of the
injunctions, the Fifth Circuit remanded the case to this Court for further proceedings consistent
with its opinion. Id. at 670. In doing so, the majority opinion emphasized that its decision "does
6 Mar. 28, 2022 Order on Mots. for Class Certification & Class-Wide Prelim. Inj., ECF No. 140.
7 Defs.' Notice of Appeal, ECF No. 159.
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not end the litigation." Id. at 676. Instead, "the issues Plaintiffs raise can still be litigated in the
district court and appealed after a final judgment, assuming they remain justiciable." Id. at 675.
Accordingly, the Fifth Circuit left open for this Court to assess in the first instance "whether any
of Plaintiffs' claims are justiciable" while "express[ing] no view on that question." Id. at 67 6; see
also id. at 678 (Ho, J., dissenting) ("[T]he majority appears to leave it open for the district court
on remand to conclude that the SEALs should ultimately prevail in this case.").
B. Other Military Vaccine Cases
The Court does not begin its analysis with a blank slate. Although this case was one of the
first cases-if not the first-to challenge the Mandate, the broader landscape has grown
significantly. Courts across the country contemplated similar challenges arising out of the COVID-
19 pandemic. Following the rescission of the Mandate, various courts addressed questions of
mootness. By the latest count, nine district courts-including five in the Fifth Circuit-have ruled
on similar mootness issues. 8 Each of those courts concluded that the cases before them were
entirely moot due to rescission of the Mandate. 9 Additionally, various courts of appeals have
weighed in, consistently affirming the mootness determinations made by lower courts. 10 The
8 E.g., Schelske v. Austin, No. 6:22-cv-049-H, 2023 WL 5986462 (N.D. Tex. Sept. 14, 2023); Wilson v.
Austin, No. 4:22-CV-438, 2023 WL 5674114 (E.D. Tex. Sept. 1, 2023); Coker v. Austin, 2023 WL 5625486
(N.D. Fla. Aug. 25, 2023); Jackson v. Mayorkas, No. 4:22-cv-0825-P, 2023 WL 5311482 (N.D. Tex. Aug.
17, 2023), appeal docketed, No. 23-11038 (5th Cir. Oct. 11, 2023); Bongiovanni v. Austin, No. 3:22-cv-
580-MMH-MCR, 2023 WL 4352445 (M.D. Fla. July 5, 2023); Crocker v. Austin, C.A. No. 22-0757, 2023
WL 4143224 (W.D. La. June 22, 2023), appeal docketed, No. 23-30497 (5th Cir. Jul. 25, 2023); Bazzrea
v. Mayorkas, 2023 WL 3958912 (S.D. Tex. June 12, 2023); Clements v. Austin, C.A. No. 2:22-2069-RMG,
2023 WL 3479466 (D.S.C. May 16,s 2023); Colonel Financial Mgmt. Officer v. Austin, No. 8:22-cv-1275-
SDM-TGW, 2023 WL 2764767 (M.D. Fla. Apr. 3, 2023). Other cases were voluntarily dismissed after the
Mandate's rescission. E.g., Joint Stipulation of Dismissal, Air Force Major v. Austin, No. 3:22-cv-756-E,
ECF No. 25 (N.D. Tex. Mar. 7, 2023).
9 The one slight exception is Schelske v. Austin, where the separated servicemember's claim survived the
Army's mootness challenge due to a live harm still remediable by court action. 2023 WL 5986462, at *l.
Judge Hendrix concluded that the claims of all other servicemembers-who were not separated-were
moot. Id.
10 Multiple courts of appeals, including the Fifth Circuit, upheld dismissals of challenges to military
COVID-19 vaccine mandates on mootness grounds. E.g., Robert v. Austin, 72 F.4th 1160, 1165 (10th Cir.
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Supreme Court even ordered a vacatur of a preliminary injunction concerning the Mandate in one
case due to mootness. Kendall v. Doster, No. 23-154, 2023 WL8531840, at *l (Dec. 11, 2023)
(mem.). Given the significant body of case law that has developed, this Court closely studied each
of those cases. After doing so, one distinguishing attribute is readily apparent that separates this
case from the rest: live harm remains due to allegations regarding the Navy's broader religious
accommodations process.
II.
LEGAL STANDARD
Article III of the Constitution limits a federal court's jurisdiction to "cases" and
"controversies." U.S. CONST. art. III,§ 2. A case or controversy must remain throughout a lawsuit's
existence. Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013). If not, the lawsuit is moot and must
be dismissed for lack of subject matter jurisdiction. Walmart Inc. v. U.S. Dep 't of Just., 21 F.4th
300,307 (5th Cir. 2021). This case-or-controversy requirement "ensures that the parties . . . retain
a 'personal stake' in the litigation." Moore v. Harper, 143 S. Ct. 2065, 2076 (2023) (quoting Baker
v. Carr, 369 U.S. 186,204 (1962)). A plaintiff must retain a personal stake "at all stages of review,
not merely at the time the complaint is filed." Id. (quoting Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 71 (2013)); Chafin v. Chafin, 568 U.S. 165, 172 (2013). "Mootness doctrine
'addresses whether an intervening circumstance has deprived the plaintiff of [that] personal stake
in the outcome of the lawsuit."' Moore, 143 S. Ct. at 2077 (quoting West Virginia v. EPA, 142 S.
Ct. 2587, 2607 (2022)). "A case becomes moot only when it is impossible for a court to grant 'any
effectual relief whatever' to the prevailing party." Knox v. Serv. Emps. Int 'l Union, Loe. 1000, 567
2023), cert. denied, 2024 WL 72062 (U.S. Jan. 8. 2024) (mem.); Roth v. Austin, 62 F.4th 1114, 1119 (8th
Cir. 2023); Navy Seal 1 v. Austin, No. 22-5114, 2023 WL 2482927 (D.C. Cir. Mar. 10, 2023), cert. denied,
144 S. Ct. 97 (U.S. Oct. 2, 2023) (mem.); Dunn v. Austin, No. 22-15286, 2023 WL 2319316 (9th Cir. Feb.
27, 2023); Short v. Berger, Nos. 22-15755, 22-16607, 2023 WL 2258384 (9th Cir. Feb. 24, 2023); Alvarado
v. Austin, No. 23-1419, 2022 WL 18587373 (4th Cir. Aug. 3, 2023), petition for cert. filed, No. 23-717
(U.S. Jan. 3, 2024).
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U.S. 298, 307 (2012) (quoting City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000)). Any
remaining "concrete interest, however small, in the outcome of the litigation" defeats mootness.
Chafin, 568 U.S. at 172 (quoting Knox, 567 U.S. at 307-08).
Although the "initial burden of establishing the trial court's jurisdiction rests on the party
invoking that jurisdiction, once that burden has been met courts are entitled to presume, absent
further information, that jurisdiction continues." Cardinal Chem. Co. v. Morton Int 'l, Inc., 508
U.S. 83, 98 (1993). The burden then shifts to the party asserting mootness, who then "bears the
burden to establish that a once-live case has become moot." West Virginia, 142 S. Ct. at 2607
(citations omitted). To do so, that party must point to "subsequent events" that "material[ly]
change" the circumstances so as to "entirely terminate[]" the controversy. Cardinal Chem. Co.,
508 U.S. at 98.
III.
ANALYSIS
On remand, Defendants argue that the intervening events after the preliminary injunction
moot Plaintiffs' claims.1' Plaintiffs appear to agree that the Fifth Circuit's "foreclose[s] an
argument that there is still a need for injunctive relief against the Mandate, or that the voluntary
cessation doctrine prevents mootness on that issue."12 Recent authority from the Supreme Court
confirms that there is no longer a need for relief from the Mandate itself-particularly not in the
form of a preliminary injunction. 13 See Doster, 2023 WL 8531840, at * 1 (granting certiorari to
provide "instructions to direct the District Court to vacate as moot its preliminary injunctions"
concerning the Mandate). While harms specifically arising out of the Mandate may be moot,
Plaintiffs contend that the Fifth Circuit's "decision did not touch all other parts of this case"
11 Defs.' Supp. Br. 1 -2, ECF No. 254.
12 Pis.' Supp. Br. 2, ECF No. 253.
13 Defs.' Notice of Supp. Authority 1 -2, ECF No. 260.
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because "[t]here are several remammg issues." 14 Specifically, Plaintiffs argue there is still
"[ o ]ngoing harm to the Class Members" that demonstrates this case remains live. 15 And even if
not, there is real potential for future harm that is "capable of repetition yet evades review." 16 The
Court agrees with Plaintiffs that the ongoing harms, arising from the Navy's broader religious
accommodations policy itself, show that their claims are not moot as it relates to this broader
vaccine policy.17 Finding no mootness as to this aspect of Plaintiffs' Amended Complaint, the
Court need not address at this stage Plaintiffs' alternative mootness-exception argument. 18
A. Ongoing Harms
Plaintiffs' supplemental briefing satisfies the Court that, "[ w ]hile the Mandate may be
gone, the effects of that Mandate and the discriminatory treatment the Class Members were subject
to because of the Mandate still linger." 19 That is because Defendants have announced no changes
to its overarching religious accommodations process. According to Plaintiffs, this allegedly
"sham" process is what enabled the coercive and discriminatory treatment of the Class Members
while their accommodation requests sat unadjudicated. 20 The Mandate simply served as the
catalyst that unveiled the problems with this broader process during the pandemic. These problems
include: (1) indefinitely sitting on requests for religious accommodation; (2) foregoing the required
individualized assessments, citing standardized policy memos (even if outdated) to satisfy the
14 Id.
1s Id.
16 Id. at 2, 5.
17 Because mootness is a question going to the Court's jurisdiction, any mootness arguments may be
reasserted, as appropriate, at future stages of this litigation should additional evidence come to light that
reveals Plaintiffs' claims are moot. See FED. R. CIV. P. 12(h)(3) (instructing courts to dismiss actions upon
determining "at any time that it lacks subject-matter jurisdiction").
18 To that end, the Court defers ruling on Plaintiffs alternative argument that an exception to mootness
applies due to finding live, ongoing harms.
19 Pis.' Supp. Br. 2, ECF No. 253.
zo Id.
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compelling interest requirement, and using boilerplate statements to suffice for demonstrating that
the Navy's action is the least restrictive means; (3) permitting discrimination and coercive tactics
to pressure servicemembers to forego their religious beliefs; (4) authorizing Navy leadership to
dictate denial of all requests without considering the individual circumstances of the requests and
current conditions or facts; (5) permitting coercion and retaliation against commanding officers
who recommend approval of religious accommodations despite the chain of command's desire
that requests be denied; and (6) prohibiting resubmission of denied requests and updates to pending
requests due to a change of job, location, or other relevant circumstances.21
1. Prospective Harms
Plaintiffs argue that the persistence of this broader illegal process has injured, and will
prospectively injure, the Class Members because they have sincere religious beliefs that impact
issues related to their service. 22 The record bears this out. Without the constitutionally required
avenue to seek accommodations for their beliefs, Class Members allege they remain injured. This
includes present and future harms due to hesitance to use the accommodations process going
forward for any religious accommodation. Cf State of Missouri v. Eiden, No. 23-30445, 2023 WL
5821788, at *8 (5th Cir. Sept. 8, 2023) (finding injury to plaintiffs persisted because of self
censorship and their continued use of social media even though social media companies had
discontinued their COVID-19 related "misinformation" policies). This also includes facing the
Robson's choice of foregoing their religious beliefs to avoid discrimination or suffering adverse
21 Id. at 2-3. Notably, the broader accommodations process previously allowed requests to resubmit or
update requests prior to the Mandate. But this was changed during the Mandate period. It appears that the
Navy has not returned to the pre-Mandate policy of allowing requests to resubmit or make updates. And
the Navy does not appear to dispute this allegation in its mootness briefing.
22 Id. at 3.
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actions from the Navy. 23 Such concrete injuries demonstrate that Plaintiffs retain a personal stake
in this litigation. Moore, 143 S. Ct. at 2076; Chafin, 568 U.S. at 172. And it appears possible for
the Court to grant effectual relief to Plaintiffs should they ultimately prevail. Knox, 567 U.S. at
307.
The Navy points out that another court has already rejected the argument regarding the
broader vaccine policy:
Plaintiffs next contend that the case is not moot because the same policies and
procedures for evaluating [religious accommodation requests ("RARs")] remain in
place. . . . But in the Complaint, Plaintiffs do not challenge the RAR process as a
whole or assert that the RAR process is defective with regard to other requests for
accommodations. Plaintiffs oppose the alleged policy of denying all RARs that
sought an exemption from the Vaccine Mandate .... Because the Vaccine Mandate
no longer exists, there can be no policy of denying all RARs to enforce that
mandate.
Bongiovanni, 2023 WL4352445, at *8. But unlike the plaintiffs in Bongiovanni, the Class
Members actually asserted-prior to rescission of the Mandate-that their underlying harms
derive from the lack of a proper religious accommodation process, rather than exclusively from
the Mandate itself.24 For instance, Plaintiffs repeatedly stated in their causes of action that they
take issue with "Defendants' policies and practices" rather than just the Mandate. 25 Moreover,
while the Mandate was the vehicle for exposing many of these policies and practices, Plaintiffs
nonetheless allege in their Amended Complaint that the Mandate was issued pursuant to "existing
23 See Pis.' App'x in Opp. to Defs.' Assertion ofMootness 0087-88, 0091-92, 0095-96, 0103--09, 0119-
20, 0125-27, 0132-33, 0136-37, 0140-41, 0144-54, ECF No. 225 (containing declarations of
servicemembers explaining how their operational status is causing current harm).
24 Pis.' Am. Comp!. 2, 10-12, 15-18, ECF No. 84. Notably, in addition to various references to the broader
policies throughout the Amended Complaint, Plaintiffs devote an entire section just to discussing these
broader policies. See id. at 10-12 ("DoD and Navy Regulations Recognize Religious and Medical
Accommodations for Immunizations under RFRA and the Free Exercise Clause Generally"). Not once in
this section are COVID-19 or the Mandate mentioned. Id. This is in stark contrast to other sections that
specifically refer to the application of these broader policies in the COVID-19 context. Instead, Plaintiffs
exclusively detail the many broader accommodations procedures that gave rise to their harms.
25 Id. at 2.
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policies and procedures to manage mandatory vaccination to the extent practicable."26 For
instance, one of those procedures-DoD Instruction 6205.02, "DoD Immunization Program"
became effective as of July 23, 2019. 27 And Plaintiffs also point to other policies that pre-date the
COVID-19 pandemic. 28
Furthermore, Plaintiffs allege that, in carrying out the Mandate, the Navy was required to
do so "subject to any identified contraindications and any administrative or other exemptions
established in Military Department policy."29 According to Plaintiffs, "Defendants' policies
acknowledge their legal duty to consider religious accommodations" despite repeatedly failing to
do so in practice. 30 This is a duty that predates the COVID-19 pandemic, as indicated by Plaintiffs
invocation of a 2008 policy: Secretary of the Navy Instruction (SECNAVINST) 1730.8B,
Accommodation of Religious Practices, dated October 2, 2008. 31 Despite these procedures, the
Amended Complaint pleads that '"[i]n the past seven years, no religious exemption from
vaccination waivers were approved for any other vaccine. "'32 And "[t]his disdain for religious
vaccine accommodations contrasts with Defendants' policies and practices granting certain secular
vaccine exemptions."33 These allegations differentiate the Class Members from plaintiffs in the
other cases.
26 Id. at 7.
27 Id.
28 See, e.g., id. at 9-10 (referencing, for example, Navy Bureau of Medicine Instruction (BUMEDINST)
6230.15B, Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases, dated October
7, 2013). The Court recognizes that other policies referenced in the Amended Complaint with effective
dates of 2020 or later may be revised versions of pre-Mandate policies.
29 Id. ( emphasis added).
30 Id. at 9.
31 Id.
32 Id. at 9.
33 Id.
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Although it is true that the Mandate was the vehicle by which Plaintiffs describe certain
injuries, this was simply one application of the broader accommodations process. Harms stemming
from that broader process appear to linger despite rescission of the Mandate. Consider, for
example, that the Amended Complaint alleges "Defendants' policies expressly allow for medical
exemptions" and that medical exemptions have been granted with respect to the Mandate. 34 One
of those policies predates the COVID-19 pandemic by seven years: Navy Bureau of Medicine
Instruction (BUMEDINST) 6230.15B, Immunizations and Chemoprophylaxis for the Prevention
oflnfectious Diseases, dated October 7, 2013. 35 This alleged disparity between how the broader
accommodations policy treats medical versus religious accommodation requests remains even in
a post-Mandate world.
Plaintiffs contend that the Navy has never rectified harms caused by the broader
accommodations policy. 36 In response, the Navy appears to double down on that notion by stating
that the absence of involuntary separation means there is no adverse action. 37 But this is not the
standard. Rather, the Fifth Circuit has recognized that adverse action can take the form of
discriminatory treatment. U.S. Navy SEALs 1-26, 27 F.4th at 342-44. Discriminatory treatment is
not limited just to involuntary separation. As Plaintiffs allege in their Amended Complaint,
Defendants' guidance concerning the Mandate identified the following adverse consequences:
"court-martial (criminal) prosecution, involuntary separation, relief for cause from leadership
positions, removal from promotion lists, inability to attend certain military training and education
schools, loss of special pay, placement in a non-deployable status, recoupment of money spent
34 Jd.
35 Id. at 9-10.
36 Pis.' Supp. Resp. Br. 2, 4 ECF No. 257.
37 Defs.' Supp. Br. 9, 17, ECF No. 254 ("The thirty-five pseudonymous Plaintiffs have not had adverse
action taken against them and they have not been subject to involuntary administrative separation.").
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training the service member, and loss of leave and travel privileges for both official and unofficial
purposes. "38 Involuntary separation is just one of the alleged harms.
Precisely because a servicemember is not separated shows that they retrain a personal stake
in relief concerning the broader accommodations policy. The intervening events did not change
this aspect of the Amended Complaint. The only change was a specific application of the broader
policy as it relates to the Mandate. As a result, it is also not impossible for the Court to grant
effectual relief to any party. This distinguishes the instant case from the decisions reached by other
courts. See, e.g., Jackson, 2023 WL 5311482, at *2 ("Now that the Mandate 'is off the books, there
is nothing injuring the plaintiffs and, consequently, nothing for the court to do."' ( citing Spell v.
Edwards, 962 F.3d 175, 179 (5th Cir. 2020)); Coker, 2023 WL 5625486, at *4 ("[E]ven if any
Plaintiff suffered a lingering harm based on refusing to get vaccinated, it would still be unclear
how the court can afford effectual relief because there remains no mandate to declare unlawful or
enjoin."). But this case is different. There remains a tangible policy-broader than the Mandate
but encompassing it-that the Court can still enjoin or declare unlawful to provide a prospective
remedy to avoid the very real prospect of future harm facing the Class Members. This remaining
concrete interest is enough to keep this case alive.
As the party asserting mootness, the Navy did not "bear[] [its] burden to establish that a
once-live case has become moot" once the Plaintiffs made an initial showing of live harm. West
Virginia, 142 S. Ct. at 2607. Although the Navy points to the subsequent events by Congress and
the President that materially changed the Mandate, they did not point to even subsequent event
that materially changed the broader policy so as to entirely terminate the controversy. 39 Id.
(citations omitted); Cardinal Chem. Co., 508 U.S. at 98. Instead, the Navy incorrectly emphasizes
38 Pis.' Am. Comp!. 8, 9, ECF No. 84
39 Defs.' Supp. Br. 2, 15, ECF No. 254; Defs.' Supp. Resp. Br. 1, ECF No. 256.
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Plaintiffs initial burden and spends more time attacking this initial showing rather than making
their own showing upon the burden shifting to them. But, at bottom, the Amended Complaint
contains actual assertions of harm arising from the broader accommodations policy.40
2. Past Harms
To be sure, some harms were rectified by rescission of the Mandate and its follow-on
policies. But Plaintiffs allege that other past harms remain unresolved. These harms include
"missed opportunities to promote, train, and fulfill milestone positions necessary to earn
promotions."41 For example, Plaintiffs contend that Class Members are one to three years behind
their peers, which carries increased potential for placement on a separation track for some and
potentially impacts pension benefits for others who are close to retirement. 42 Additionally,
Plaintiffs argue that there is no post-Mandate policy preventing consideration of vaccination status
in promotions and non-operational assignments, which allows for continued discrimination. 43 And,
finally, Plaintiffs allege that the Navy has insufficiently implemented a review process to purge
negative notations in each Class Member's file, particularly given that there has always been a
dispute about what constitutes "adverse action."44
The Navy responds that "[p ]ast harms do not save this case from mootness because the
operative complaint seeks prospective relief."45 The Court agrees with the Navy. To the extent that
any of these harms seek retrospective relief, they will not suffice for any future declaratory relief
4° For instance, Section E of the Amended Complaint discusses the broader Department of Defense and
Navy policies. Pis.' Am. Comp!. 10-12, ECF No. 84. Moreover, each cause of action cites to "Defendants'
policies and procedures"-rather than the Mandate specifically-as the cause of Plaintiffs' injuries. Id. at
,r,r 83, 103, 119, 133. The Mandate was simply the vehicle for bringing the claims against the broader
policies.
41 Pis.' Supp. Br. 3 ECF No. 253.
42 Id. at 3-4.
43 Id. at 4.
44 Id.
45 Defs.' Supp. Resp. Br. 4, ECF No. 256.
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that may be awarded. See Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003) (holding that a claim
for declaratory relief is moot because the plaintiff alleged only past injuries); see also Jackson,
2023 WL 5311482, at *2 ("Plaintiffs allege only past harm-deprivation of their constitution right
to free exercise of their religion, missed opportunities for promotion and training, and reputational
damage-resulting from the Mandate. Any such harm will not suffice for declaratory relief."). As
this case proceeds, only present and future harms will support any declaratory relief sought. Past
harms from the Mandate-even those that were not remedied-cannot form the basis of a
declaration.
B. Comparison With Other Military Vaccine Cases
The Court recognizes that the determination in this case may appear, on the surface, to
diverge from decisions reached by other courts. But unlike each of those other cases, not one
asserted, as a primary harm at the time of filing, that the entire religious accommodation process
was flawed. This is a critical distinction. In those other vaccine cases, multiple district courts
determined that the military servicemembers' claims were moot because of the focus on the
Mandate itself-not the military's entire religious accommodation process. And in the one case
that discussed the broader policy, the plaintiffs there were attempting to reformulate their Mandate
specific claims in order to survive the mootness challenge. Bongiovanni, 2023 WL4352445, at *8.
This case is different. The Class Members take issue with the "continued existence of the
Navy's legally flawed process" as a whole, which "persists regardless of the [M]andate's
rescission."46 Indeed, Plaintiffs claim that "[f]or seven years before the COVID-19 Vaccination
Mandate (and the 50-step SOP), the Navy had not granted any requests for religious
accommodation related to vaccine requirements."47 And this is on top of the Navy's alleged failure
46 Pis.' Supp. Resp. Br. 1, ECF No. 257.
47 Pis.' Am. Comp!. 9, ECF No. 84.
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to evaluate religious accommodations requests on an individualized basis. As the Fifth Circuit
explained, "[t]he gravamen of the [preliminary injunction ]'s reasoning was that the Navy's review
process was mere 'theater' with each request ending in a 'rubber-stamp[ ed]' denial of a religious
accommodation." US. Navy Seals 1-26, 72 F. 4th at 670. And Plaintiffs contend the problem is
more fundamental than the Mandate-it is endemic to the Navy's broader vaccine
accommodations policy. It is this issue that remains live.
Recent authority from the Supreme Court is also not dispositive. See Doster, 2023 WL
8531840, at * 1 (instructing the lower court to vacate as moot the preliminary injunctions against
the now-rescinded Mandate). According to Defendants, Doster "confirms that this Court should
dismiss this case as moot."48 But Doster only supports the notion that injunctive relief concerning
the Mandate is moot. Of the two applications of Plaintiffs' claims at issue here-the Mandate and
the Navy's broader religious accommodations policy-the Mandate is the lesser and the broader
accommodations policy the greater. The Fifth Circuit's decision determined that the appeal of the
Mandate-the lesser included policy-is now moot in light of subsequent developments. 49 But the
Fifth Circuit's decision does not necessarily bear on the broader accommodations policy-the
greater policy. If it did, the Navy's assertion of mootness as to the entire accommodations policy
would correctly moot the lesser Mandate. But that is not the situation presented to the Court.
48 Defs.' Notice of Supp. Authority 2, ECF No. 260.
49 The Fifth Circuit was clear that its decision "does not end the litigation." U.S. Navy SEALs 1-26, 72 F.4th
at 676. It left open for this Court to "decide in the first instance whether any of Plaintiffs' claims are
justiciable" without expressing any view on that question. Id. It also left open the question as to whether
the capable-of-repetition-yet-evades review exception applies. U.S. Navy SEALs 1-26, 72 F.4th at 675 ("The
capable-of-repetition exception is inapplicable in those situations in which the issues underlying the moot
appeal are not moot in the case remaining before the district court.") ( cleaned up)). Because this Court finds
ongoing harms that remain justiciable, it need not evaluate at this time whether a mootness exception
applies. Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1385 (5th Cir. 1986), abrogated on other grounds by
Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991).
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Instead, only the Mandate is moot, leaving the dispute concerning the broader policy intact as a
live controversy ripe for adjudication.
While other courts rejected the idea that the capable-of-repetition-yet-evades-review
exception applies, they did so based on the higher showing of likely future harm that is required
to justify that exception. 50 The bar is not as high with traditional questions of standing. Plaintiffs
"retain a 'personal stake' in th[is] litigation" despite the rescission of the Mandate. Moore, 143 S.
Ct. at 2076 (quoting Baker, 369 U.S. at 204). And that personal stake has continued "at all stages
ofreview" and "not merely at the time the complaint [ wa ]s filed." Id. ( quoting Genesis Healthcare
Corp., 569 U.S. at 71). Although changes to the Navy's treatment of a servicemember's COVID-
19 vaccination status constituted "an intervening circumstance" while the preliminary injunction
was on appeal, that circumstance did not "deprive[] the [P]laintiffl: s] of [their] personal stake in
the outcome of the lawsuit." Id. (quoting West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022)). In
this case, it is still possible for the Court to grant effectual relief to Plaintiffs should they ultimately
prevail on their claims that there are ongoing harms stemming from the broader accommodations
process. See Knox, 567 U.S. at 307 ("A case becomes moot only when it is impossible for a court
to grant 'any effectual relief whatever' to the prevailing party.") ( quoting City of Erie, 529 U.S. at
287)). That is because Plaintiffs retain a "concrete interest . . . in the outcome of th[is] litigation"
by taking issue with the Navy's entire religious accommodations process. Chafin, 568 U.S. at 172
50 See, e.g., Schelske, 2023 WL 5986462, at *13-*14 (explaining that the future harm from the Mandate is
inherently incapable of evading review because it "lacked an expiration date" and was not "time-limited by
[its] own terms" or "the temporary nature of any causal or underlying event or condition" so as to prevent
judicial review). While the Schelske plaintiffs also "attempt[ ed] to recharacterize the issue by stating that
th[ eir] case 'is not about the vaccine mandate' but, rather, about the '[ d]efendants' refusal to grant religious
accommodations to the mandate via a regulatory process that is still in force,"' this argument was made to
show that "the Army's entire religious-exemption process is likely to evade review in general." Id. at *14.
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(quoting Knox, 567 U.S. at 307-08). Unlike other cases, this is sufficient to defeat Defendants'
assertion of mootness.
*
*
*
*
*
Accordingly, Plaintiffs carried their initial burden establishing the Court's continuing
jurisdiction. And the Court is "entitled to presume, absent further information, that jurisdiction
continues." Cardinal Chem. Co., 508 U.S. at 98. Upon the shifting of the burden to provide further
information "that [this] once-live case has become moot" to Defendants, they were unable to point
to "subsequent events" that "material[ly] change[ d]" the circumstances so as to "entirely
terminate[]" the controversy. West Virginia, 142 S. Ct. at 2607 (citations omitted); Cardinal Chem.
Co., 508 U.S. at 98. Given that Plaintiffs' claims implicate the Navy's entire religious
accommodations process-not just the Mandate-Defendants have not made it clear how claims
arising out of the broader accommodations policy are moot. Just because the Navy rescinded one
application in the form of the Mandate does not mean that Plaintiffs no longer have live claims.
Therefore, this case is not moot.
IV.
CONCLUSION
Plaintiffs should have their day in court. They have carried their initial burden to show that
certain prospective claims for declaratory relief remain live. The Navy failed to carry its burden to
show the opposite. But the Navy has demonstrated that past harms stemming from the Mandate
cannot serve as the basis for a declaration alone. And Plaintiffs do not appear to otherwise seek
retrospective relief for these past harms. 51 For that reason, the Court GRANTS in part and
DENIES in part Defendants' Assertion of Mootness (ECF No. 221) because a live controversy
remains as to certain claims for which it is not impossible for the Court to grant effectual relief.
51 Pis.' Supp. Resp. Br. 1 n.l, ECF No. 257 (acknowledging that Plaintiffs previously raised the issue of
damages in their original suggestion ofmootness briefing, but "no longer intend to pursue that argument").
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Plaintiffs' claim for preliminary and permanent injunctive relief prohibiting Defendants from
enforcing the Mandate is MOOT due to rescission of the challenged conduct. However, Plaintiffs'
claims for relief arising out of the broader vaccine accommodations policy may proceed. Critically,
the Court emphasizes that this is a preliminary conclusion. Questions regarding mootness and
standing may be asserted, as appropriate, at any point in the litigation.
In light of this determination, the Court ORDERS the parties to submit a joint report with
their proposal for how this case should proceed to final resolution on an expedited basis by no
later than February 28, 2024. Specifically, the joint report should (1) indicate whether any
amendment of the active pleadings is warranted given the robust procedural developments in this
case and (2) provide new suggested dates for all deadlines stayed by the Court's March 7, 2023
Order (ECF No. 234).
SO ORDERED this 14th day of February, 2024.
<f%.i)
UNITED STATES DISTRICT J DGE
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