Plaintiffs’ Opening Brief Regarding Mootness

Summary

Plaintiffs' Opening Brief Regarding Mootness, filed July 26, 2024 as Document 134 in Air Force Officer et al. v. Lloyd J. Austin, III, Frank Kendall, III, and Robert I. Miller, Case No. 5:22-cv-00009-TES, U.S. District Court for the Middle District of Georgia, Macon Division. Plaintiffs state that the case is not moot because prospective claims for equitable including declaratory relief remain live, citing Navy SEALs 1-26 v. Austin, No. 4:21-cv-01236-O (N.D. Tex. Feb. 14, 2024) (ECF 262). Plaintiffs also state that Plaintiffs challenge the Air Force's religious accommodation policy itself, and that the Eleventh Circuit vacated as moot the preliminary injunction against enforcement of the COVID-19 vaccine mandate. The brief also argues that Doster v. Kendall is irrelevant.

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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

AIR FORCE OFFICER, AIR FORCE NCO,
)
AIR FORCE SPECIAL AGENT, and
)
AIR FORCE ENGINEER, on behalf of
)
themselves and all others similarly situated,
)

)
Case No. 5:22-cv-00009-TES

Plaintiffs,
)
v.

)

)
LLOYD J. AUSTIN, III, in his
)
official capacity as Secretary of Defense;
)
FRANK KENDALL, III, in his
)
official capacity as Secretary of the Air Force; and
)
ROBERT I. MILLER, in his
)
official capacity as Surgeon General of the
)
Air Force,

)

)

Defendants.

)

PLAINTIFFS’ OPENING BRIEF REGARDING MOOTNESS

This case is not moot, because prospective claims for equitable including declaratory relief
remain live, as in Navy SEALs 1-26 v. Austin, No. 4:21-cv-01236-O (N.D. Tex. Feb. 14, 2024) (ECF
262) (attached hereto as Exhibit A). Specifically, Plaintiffs challenge the Air Force’s unlawful religious
accommodation policy itself. The Eleventh Circuit vacated as moot this Court’s preliminary injunction
against enforcement of the COVID-19 vaccine mandate, but Plaintiffs’ challenge to the
accommodation policy itself remains a live claim. Navy SEALs is on point. There, the Fifth Circuit
dismissed as moot the Navy’s appeal of the preliminary injunction against the Navy’s COVID-19
vaccine mandate, and on remand the district court ruled that the case was not moot in its entirety,
because plaintiffs’ challenge to the accommodation policy itself remained a live claim. Plaintiffs’ claims
are virtually identical to the plaintiffs’ claims in Navy SEALs and if anything present an even clearer
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challenge to the policy. This case is likewise not moot. The recently finalized settlement in Navy
SEALs further demonstrates the need for relief here.
Further, the Air Force admits that its policies restoring unvaccinated service members to full
participation go above and beyond the congressionally-required rescission of the COVID-19 vaccine
mandate itself. Under the doctrine of voluntary cessation, therefore, Plaintiffs’ claims seeking to ensure
such full participation are not entirely moot.
The recent dismissal order in Doster v. Kendall, No. 1:22-CV-84, 2024 WL 1156426 (S.D. Ohio
Mar. 18, 2024), is irrelevant. On remand plaintiffs there did not challenge the Air Force’s religious
accommodation policy itself, or press for declaratory judgment on the matter of full participation.
Instead, the court found they sought only unpled retrospective relief.
This Court should find this case is not moot, and the case should proceed.
I.
Background
On January 6, 2022, Air Force Officer filed her original Complaint. [Doc. 1]. The same day,
she filed a motion for preliminary injunction, seeking to enjoin enforcement of the COVID-19 vaccine
mandate against her. [Doc. 2]. On February 15, 2022, the Court granted her motion for preliminary
injunction. [Doc. 51]; Air Force Officer v. Austin, 588 F. Supp. 3d 1338 (M.D. Ga. 2022). The order
preliminarily enjoined enforcement of the COVID-19 vaccine mandate as to Air Force Officer only.
Id. The Court recognized that the “Air Force’s process to protect religious rights is both illusory and
insincere,” that it was “just ‘theater.’” Air Force Office, 588 F. Supp. at 1338, 1354 (quoting Navy SEALs
1-26 v. Biden, 578 F. Supp. 3d 822, 826 (N.D. Tex. 2022)). But the Court did not grant relief beyond
enjoining enforcement of the COVID-19 vaccine mandate against a single service member, Air Force
Officer. Id. at 1347, 1352-57. The Air Force appealed the preliminary injunction order to the Eleventh
Circuit. [Doc. 71].
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On February 28, 2022, Air Force Officer filed a First Amended Class Action Complaint. [Doc.
56]. On April 27, 2022, Air Force Officer and the three additional Plaintiffs filed a Second Amended
Class Action Complaint. [Doc. 84]. This is the governing Complaint. [Doc. 83].
The Second Amended Class Action Complaint challenges both the COVID-19 vaccine
mandate and the broader accommodations policy. [Doc 84]. The numerous allegations challenging
the broader vaccine accommodations policy include, for example, the following:
10. Plaintiffs and the Class challenge Defendants’ orders, policies, and actions detailed
below, facially for lack of exception for any religious exercise, and as applied to Plaintiffs and
the Class in denying their particular requests for religious accommodation.
11. Defendants’ orders, policies, and actions deprived and will continue to deprive
Plaintiffs and other Class members of their paramount rights and guarantees under federal
law, including under RFRA, the United States Constitution, and the APA.
31. The DoD Military Mandate states in part that “Military Departments should use
existing policies and procedures to manage mandatory vaccination of Service members to the
extent practicable.”
104. In September 2021, the Air Force provided a form Religious Accommodation
Request for Immunization Waiver (“Military Request Form”).
105. The Military Request Form provides in part that a service member requesting a
religious accommodation will certify, “I am making an informed decision and fully understand
that my request may have an adverse impact on my deployability, assignment, and/or
international travel.”
106. The Military Request Form “reference[d]” “AFI 48-110, 16 Feb 18 Immunizations
and Chemoprophylaxis for the Prevention of Infectious Disease” among other policies and procedures.
183. The Air Force’s process purporting to protect religious rights protected by federal
law and the Constitution is both illusory and insincere.
192. Defendants have engaged in a common course of conduct giving rise to violations
of the legal rights sought to be enforced uniformly by Plaintiffs and the Class members.
193. Similar or identical constitutional and statutory violations, processes, policies,
practices, and harm are at issue with respect to each Class member.
196. Determination of the following common questions of law or fact will resolve in
one stroke the following issues that are central to the validity of Plaintiffs’ and each Class
member’s claims:
a. Whether the Air Force’s process that supposedly protects religious rights as required
by the Religious Freedom Restoration Act (RFRA) and the First Amendment is
illusory and insincere. [Doc. 51, p. 25].
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* * *
c. Whether the Air Force has a policy, practice, or procedure of not conducting “to
the person” assessment to which service members are entitled under RFRA and/or
the First Amendment.
199. All absent Class members have been injured, or are at risk of injury, as a result of
the same processes, policies, or practices.
236. Although the Mandates invite service members to apply for religious exemptions,
the enforcement record shows that Defendants have adopted a policy of denying all religious
accommodations without considering particular circumstances.
275. Defendants’ policy of denying all religious accommodation requests no matter
the circumstances is vastly out of step with policies in the rest of the country, including in the
countless workplaces across the country that currently provide religious accommodations
without any evidence of causing harm.
278. Because of Defendants’ policy and actions, Plaintiffs and the Class have suffered
irreparable harm and are entitled to relief.
In March, July, and August 2022, after this Court issued its February 15 preliminary injunction
in this case, the District Court for the Southern District of Ohio, in Doster v. Kendall, entered
preliminary injunctions against enforcement of the Air Force COVID-19 mandate as to the named
plaintiffs in that case and a class of similarly situated Airmen. Doster v. Kendall, No. 1:22-CV-84 (ECF
47, 77, & 86). That class included the Plaintiffs in this case. [Doc. 121 & 122].
On August 5, 2022, this Court stayed proceedings pending resolution of the class-wide relief
issued in Doster. [Doc. 124]. Similarly, on August 24, 2022, the Eleventh Circuit stayed the appeal of
this Court’s February 15 preliminary injunction pending resolution of the class-wide relief issued in
Doster. [Doc. 125].
In December 2022, Congress passed and the President signed into law the 2023 National
Defense Authorization Act (NDAA) which directed Defendant Austin to rescind the COVID-19
vaccine mandate applicable to the Air Force. Pub. L. No. 117-263, § 525, 136 Stat. 2395. In January
2023, Defendant Austin rescinded the mandate. [Doc. 126].1

1 In May 2023, the President revoked Executive Order 14043 applicable to federal civilian
employees. See https://www.whitehouse.gov/briefing-room/presidential-
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In December 2023, the United States Supreme Court directed that the preliminary injunctions
in Doster be vacated as moot in light of the rescission of the COVID-19 vaccine mandate. Kendall v.
Doster, 144 S. Ct. 481 (2023). Upon remand, the District Court for the Southern District of Ohio
requested briefing as to whether Doster was moot in its entirety. Doster, No. 1:22-CV-84 (S.D. Ohio
Jan. 30, 2024) (notation order). In response, the plaintiffs argued the case was not moot because two
named plaintiffs were seeking retrospective relief: back pay and points lost under the COVID-19
vaccine mandate. Doster, No. 1:22-CV-84 (S.D. Ohio Feb. 9, 2024) (ECF 125). In their briefing, Doster
plaintiffs did not assert that they were challenging the unlawful religious accommodation policy itself
or seek declaratory judgment on the matter of full participation. Id. Holding that the two plaintiffs did
not request retrospective relief in their complaint (and that back pay and points are not remediable as
retrospective relief besides), the district court dismissed the case as moot in its entirety. Doster, 2024
WL 1156426. The Doster plaintiffs appealed to the Sixth Circuit Court of Appeals, case no. 24-3404.
That appeal remains pending.
On June 12, 2024, the Eleventh Circuit in this case granted the Air Force’s unopposed motion
to dismiss its appeal as moot, and vacated the preliminary injunction, but remanded to this Court “for
further proceedings.” [Doc. 128]. On June 13, 2024, this Court lifted the stay. [Doc. 129]. On July 1,
2024, this Court ordered the present briefing on whether the case is moot in its entirety. [Doc. 132].
As discussed below, the case is not moot in its entirety.
II.
Legal Standard
Any remaining “concrete interest, however small, in the outcome of the litigation” defeats
mootness. Chafin v. Chafin, 568 U.S. 165, 172 (2013). “A case becomes moot only when it is impossible
for a court to grant any effectual relief whatever.” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S.

actions/2023/05/09/executive-order-on-moving-beyond-covid-19-vaccination-requirements-for-
federal-workers/.
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298, 307 (2012) (cleaned up). The party asserting mootness “bears the burden to establish that a once-
live case has become moot.” West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022). See also Navy SEALs
1-26 (N.D. Tex. Feb. 14, 2024) (ECF 262 at 5-6) (quoting and citing Chafin, Knox, and West Virginia
and related cases).
“It is well settled that a defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 289 (1982). “[G]overnment defendants no less than [ ] private ones” have a
“formidable burden” in showing that a voluntarily rescinded challenged practice “cannot reasonably
be expected to recur.” FBI v. Fikre, 601 U.S. 234, 241 (2024).
III.
Discussion
The case is not moot. Plaintiffs assert a concrete interest in the outcome of the litigation. The
Court can and should grant effectual relief. The Air Force cannot satisfy its burden of establishing the
case has become moot.
A. Plaintiffs challenge the religious accommodation policy itself.
While the February 2022 preliminary injunction against the COVID-19 vaccine mandate has
been vacated as moot, Plaintiffs continue to assert a concrete interest in the outcome of the litigation.
Specifically, they challenge the Air Force’s religious accommodation policy itself.  “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.” Navy SEALs 1-26 (N.D. Tex. Feb. 14, 2024)
(ECF 262 at 5-6).
As detailed above in Section I, Plaintiffs make numerous allegations challenging the
accommodation process itself. For example, they allege, “Plaintiffs and the Class challenge
Defendants’ orders, policies, and actions detailed below, facially for lack of exception for any religious
exercise,” (Second Amended Class Action Complaint, ¶ 10), “Defendants’ orders, policies, and actions
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deprived and will continue to deprive Plaintiffs and other Class members of their paramount rights
and guarantees under federal law, including under RFRA, the United States Constitution, and the
APA” (¶ 11), the “process purporting to protect religious rights protected by federal law and the
Constitution is both illusory and insincere” (¶ 183), “the Air Force’s process that supposedly protects
religious rights as required by the Religious Freedom Restoration Act (RFRA) and the First
Amendment is illusory and insincere” (¶ 196.a), “the Air Force has a policy, practice, or procedure of not
conducting ‘to the person’ assessments to which service members are entitled” under the same laws (¶ 196.c),
“[a]ll absent Class members have been injured, or are at risk of injury, as a result of the same processes,
policies, or practices” (¶ 199), and “Defendants have adopted a policy of denying all religious accommodations
without considering particular circumstances” (¶ 236) (emphasis added).
The Air Force has announced no changes to its illusory and insincere religious
accommodations process. This illusory and insincere process is what enabled the coercive and
discriminatory treatment of Plaintiffs and putative class members. See Navy SEALs 1-26 (N.D. Tex.
Feb. 14, 2024) (ECF 262 at 7) (“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”). These problems include: (1) foregoing the required individualized assessments,
citing general interests to try to show compelling interest and least restrictive means; (2) permitting
discrimination and coercive tactics to pressure service members to forgo their religious beliefs; and
(3) authorizing Air Force leadership to dictate denial of all requests without considering the individual
circumstances of the requests and current conditions or facts. Second Amended Class Action
Complaint, e.g., ¶¶ 108, 194, 196, 220, 250, 292-93; Navy SEALs 1-26 (N.D. Tex. Feb. 14, 2024) (ECF
262 at 7-8).
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The Second Amended Class Action Complaint more than sufficiently pleads a challenge to
the Air Force’s unlawful religious accommodation policy.2
B. The Navy SEALs case is on point.
The Navy case is on point. The Fifth Circuit dismissed as moot the Navy’s appeal of the
preliminary injunction against enforcement of the Navy’s COVID-19 vaccine mandate.3 On remand
Judge O’Connor held that the claim for injunctive relief prohibiting enforcement of the vaccine itself
was moot but held that the case was not moot in its entirety, because plaintiffs’ challenge to the
accommodation policy itself remained a live claim. Navy SEALs 1-26 (N.D. Tex. Feb. 14, 2024) (ECF
262). Likewise here, the Eleventh Circuit dismissed as moot the Air Force’s appeal of the preliminary
injunction against enforcement of the Air Force’s COVID-19 vaccine mandate. On remand, the Court
should hold that the case is not moot, because Plaintiffs’ challenge to the accommodation policy itself
remains a live claim.
Plaintiffs’ claims are virtually identical to the plaintiffs’ claims in Navy SEALs and if anything
present an even clearer challenge to the policy. The laws (including RFRA and the First Amendment)
and many of the preexisting written religious-accommodation regulations that the Navy failed to
follow as a matter of policy are the same laws and regulations that the Air Force fails to follow as a
matter of policy in this case. The COVID-19 vaccine mandate simply served as the catalyst that
unveiled the problems with this broader process during the pandemic. Navy SEALs 1-26 (N.D. Tex.
Feb. 14, 2024) (ECF 262 at 7).
Similar to the Navy SEALs plaintiffs, Plaintiffs here cite the military’s “policy and actions” as
the cause of the Plaintiffs’ injuries rather than the mandate specifically. See Second Amended Class
Action Complaint, ¶¶ 278 & 348 (“Because of Defendants’ policy and actions, Plaintiffs and the Class

2 To the extent the Court disagrees, Plaintiffs request leave to amend. Fed. R. Civ. P. 15(a)(2).
3 See Section III.D below.
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have suffered irreparable harm and are entitled to relief.”); Navy SEALs 1-26 (N.D. Tex. Feb. 14,
2024) (ECF 262 at 13 n.40) (“[E]ach cause of action cites to ‘Defendants’ policies and procedures’—
rather than the Mandate specifically—as the cause of Plaintiffs’ injuries.”). Like the Navy SEALs
plaintiffs, Plaintiffs here assert prospective remediable harms. Religious objectors understandably may
have “hesitance to use the accommodations process going forward for any religious accommodation.”
Navy SEALs 1-26 (N.D. Tex. Feb. 14, 2024) (ECF 262 at 8) (emphasis added). “Plaintiffs retain a
personal stake in this litigation.” Id. at 9
Indeed, Plaintiffs challenge the unlawful accommodation policy itself even more explicitly than
their counterparts in the Navy case. For example, Plaintiffs’ allegations of common questions of law
or fact in this case include at least two key allegations addressing the broader unlawful accommodation
policy with no reference to the COVID-19 vaccine mandate: “[w]hether the Air Force’s process that
supposedly protects religious rights as required by the Religious Freedom Restoration Act (RFRA)
and the First Amendment is illusory and insincere” and “[w]hether the Air Force has a policy, practice,
or procedure of not conducting ‘to the person’ assessment to which service members are entitled
under RFRA and/or the First Amendment.” Second Amended Class Action Complaint, ¶¶ 196(a),
(c). By contrast, all of the common questions of law or fact alleged in the Navy case expressly reference
the “COVID-19 Vaccine Mandate.” See Navy SEALs Am. Cmplt. (ECF 84) at 15-20 (e.g., “[w]hether
the Navy has a policy or practice of denying all Religious Accommodation requests concerning the
COVID-19 Vaccine Mandate,” “[w]hether the Navy has a policy or practice of not conducting an
individualized assessment of all Religious Accommodation request concerning the COVID-19 Vaccine
Mandate,” etc.) (emphasis added). The district court nevertheless cited those specific “COVID-19
Vaccine Mandate” allegations in support of its finding that the Navy service member plaintiffs
challenged the accommodation policy, i.e., “that their underlying harms derive from the lack of a
proper religious accommodation process, rather than exclusively from the Mandate itself.” Navy
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SEALs 1-26 (N.D. Tex. Feb. 14, 2024) (ECF 262 at 9 & 9 n.24). A fortiori, Plaintiffs’ allegations
challenging the religious accommodation policy itself, and not referencing the mandate, more than
sufficiently challenge the policy and state a live claim.4
C. The Navy settlement further demonstrates the need for relief here.
The Navy recently settled with the Navy SEALs plaintiffs. The court issued its final approval
order on July 24, 2024. Navy SEALs 1-26 (N.D. Tex. July 24, 2024) (ECF 320). The settlement
provides various relief including the military’s commitment to: “re-review” the personnel records of
all class members and ensure permanent removal of any records even “indicating” adverse action or
misconduct based on alleged non-compliance with the vaccine mandate, or any related adverse
“information;” provide language in selection boards’ convening orders specifying they “must not
consider any [such] adverse information”; make a public declaration of the importance of
accommodating sincerely held religious beliefs; create a training presentation explaining Navy
decisionmakers’ obligation to timely adjudicate a service member’s religious accommodation request,
“individually assess” such request, and provide “individualized justification” in granting or denying
such request; and pay attorneys’ fees to plaintiffs’ counsel. Navy SEALs 1-26 (N.D. Tex. May 31, 2024)
(ECF 279, Settlement Agreement, ¶¶ 19-24).
Plaintiffs are entitled to equal protection under the law, under the Fifth Amendment of the
Constitution. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (“[A]ll persons
similarly situated should be treated alike”). As religious-objector service members who are similarly
situated to the religious-objector service members in the Navy case in all relevant respects, Plaintiffs
are entitled to relief that is comparable to the relief plaintiffs obtained in the Navy case. See, e.g., Schreiber

4 The court in Navy SEALs 1-26 “distinguish[ed]” several other military vaccine cases (including
Doster and others) where, the court found, plaintiffs did not challenge the broader religious
accommodation process. Navy SEALs 1-26 (N.D. Tex. Feb. 14, 2024) (ECF 262 at 4-5, 12, 24). The
court rightly did not include and could not have included the present case among the
“distinguish[able]” cases. See id.
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v. Wick, 362 F. Supp. 193, 194 (N.D. Ill. 1973) (“The conflicting policy between branches of military
service concerning the [hair] grooming of reservists might well involve constitutional problems of
equal protection and due process.”).5 There is no basis in law or military purpose in honoring the
religious-liberty rights of Navy service members and not those of Air Force service members.
Federal constitutional and statutory rights are at stake here, including religious-liberty rights
under the First Amendment and RFRA. This is not a matter of merely seeking uniformity among the
branches in matters of physical fitness, discipline, service needs, or the like. See, e.g., Vance v. U.S., F.
Supp. 826, 839 n.16 (N.D. Tex. 1977) (a service member is not entitled as a matter of equal protection
to a higher bodyweight limit allowed by another branch). There is no right to uniformity per se among
the branches. But where federal constitutional or statutory rights are implicated, the government
cannot honor those rights for some service members and not others who are similarly situated.
Schreiber, 362 F. Supp. at 194. Because federal constitutional and statutory rights are implicated here,
the government must honor the rights of Air Force service members as much as Navy service
members. At the very least, the Navy settlement demonstrates that the military itself acknowledges
there is some relief that can be granted to service members. The case is not moot.
D. Voluntary cessation of additional restrictions also prevents mootness.
The Air Force acknowledges that its policies restoring unvaccinated service members to full
participation were not required by the 2023 NDAA. Indeed, Defendant Austin’s January 2023
rescission memo expressly maintained “the ability of commanders to consider” service members’

5 See Harris v. Kaine, 352 F. Supp. 769, 775 (S.D.N.Y. 1972) (“[T]he right to wear one’s hair at any
length or in any desired manner… is an ingredient of personal freedom protected by the United
States Constitution.”).

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COVID-19 vaccine status “in making deployment, assignment, and other operational decisions.”6
Only later did Defendant Austin voluntarily change course and state, as a general matter, that
“commanders will not … consider a Service member’s COVID-19 immunization status in making
deployment, assignment, and other operational decisions.”7
Plaintiffs here challenged precisely such restrictions on their ability to participate fully in the
Air Force. See, e.g., Second Amended Complaint, ¶ 157 (Air Force Special Agent complaining he was
wrongfully denied promotion based solely on his religiously motivated COVID-19 vaccination status);
¶¶ 223-24 (Plaintiffs complaining that adverse impacts on their deployability, assignments, or
international travel based on their religiously motivated COVID-19 vaccine status “can have
permanent and lasting effects on” their careers). But it is “well settled that a defendant’s voluntary
cessation of a challenged practice does not deprive a federal court of its power to determine the legality
-of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982).
Two court decisions limited certain relief but do not preclude application of the voluntary
cessation doctrine here. First, the Supreme Court vacated the class-wide preliminary injunction for a
class of Air Force service members (including Plaintiffs here) in Kendall v. Doster, 144 S. Ct. 481
(2023)—notably after the Air Force explicitly pointed to policies restoring unvaccinated members to
full participation.8 Indeed, “[s]uch abandonment” of prior discrimination “is an important factor
bearing on the question whether a court should exercise its power to enjoin the defendant from

6 Sec’y. Austin Rescission Memo, at p. 2 (Jan. 10, 2023),
https://www.documentcloud.org/documents/23569782-secretary-of-defense-memo-on-rescission-
of-coronavirus-disease-2019-vaccination-requirements-for-members-of-the-armed-
forces?responsive=1&title=1.
7 Sec’y. Austin Guidance Memo, at p. 2 (Feb. 24, 2023),
https://media.defense.gov/2023/Feb/24/2003167584/-1/-1/1/GUIDANCE-FOR-
IMPLEMENTING-RESCISSION-OF-082421-AND-113021-COVID-19-VACCINATION-
REQUIREMENTS-FOR-MEMBERS-OF-THE-ARMED-FORCES-OSD001649-23-RES-
FINAL.PDF.
8 Petitioner’s Petition for Writ of Certiorari, p. 18, paragraph a., Kendall v. Doster, No. 23-154 (Aug.
16, 2023).
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renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial
power” to decide the case. City of Mesquite, 455 U.S. at 289 (emphasis added). In other words, even if
“further violations [are] sufficiently remote to make injunctive relief unnecessary,” the Court still “ha[s]
no choice but to decide” the case so long as the Air Force has not shown that “subsequent events
ma[k]e it absolutely clear that [voluntarily rescinded] allegedly wrongful behavior could not reasonably be
expected to recur.” Id. at 289 n.10. The Supreme Court thus remanded in Doster for further
proceedings. Doster, 144 S. Ct. 481. (See also Section III.E below.)
Second, the Fifth Circuit held that similar voluntary restoration of full participation in the Navy
effectively mooted the need for a preliminary injunction. Navy Seals 1-26 v. Biden, 72 F.4th 666, 673-
75 (5th Cir. 2023).9 But again, that decision was about injunctive relief, not a declaratory judgment, and
the Fifth Circuit expressly recognized that its holding “does not end the litigation.” Id. at 676.
Moreover, the Court’s analysis hinged on an erroneous premise that has since been superseded by the
Supreme Court. Specifically, the Fifth Circuit stated “[t]he voluntary cessation analysis is somewhat
different with respect to a government defendant,” which allegedly “bears a lighter burden” in showing
no reasonable likelihood of recurrence. Id. at 673 (emphasis added, internal quotes omitted). However,
more recently the Supreme Court has clarified that “government defendants no less than [ ] private ones”
have a “formidable burden” in showing that a voluntarily rescinded challenged practice “cannot
reasonably be expected to recur.” Fikre, 601 U.S. at 241 (emphasis added, internal quotes omitted).
Further, whereas the Fifth Circuit stated the question was whether the Navy “issued the post-
rescission policies with an eye toward resuming the challenged conduct as soon as the courts were done,”

9 The related doctrine of capable of repetition but evading review, see, e.g., Roberts v. Sec’y, Dep’t of
Corr., No. 23-12289, 2024 WL 1830713, at *3 (11th Cir. Apr. 26, 2024), yields the same result here:
the case is not moot. The Fifth Circuit expressly did not decide the capable-of-repetition issue in
Navy SEALs 1-26, 72 F.4th at 675.

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Navy SEALs, 72 F.4th at 675 (emphasis added), the Supreme Court clarified that the question is
actually “whether the challenged conduct might recur immediately or later at some more propitious moment,”
Fikre, 601 U.S. at 778 (emphasis added).
Here, as in Fikre, “[n]othing the government offers satisfies that formidable standard.” Id. 10
Accordingly, the Air Force has failed to show mootness for this additional reason.
E. The recent Doster dismissal order is irrelevant.
  The district court’s dismissal order in Doster is irrelevant. Unlike in this case and in Navy
SEALs, the Doster plaintiffs on remand did not assert that they were challenging the unlawful religious
accommodation policy itself, or press for declaratory judgment on the matter of full participation.
Doster, 2024 WL 1156426, at *1-2; Doster, No. 1:22-CV-84 (S.D. Ohio Feb. 9, 2024) (ECF 125). Instead,
the Doster plaintiffs argued for retrospective relief only (back pay and points) for two named plaintiffs,
based on the unlawful COVID-19 vaccine mandate. Id. Holding that the two plaintiffs did not request
such retrospective relief in their complaint (and that back pay and points are not remediable as
retrospective relief besides), the district court dismissed the case as moot in its entirety. Doster, 2024
WL 1156426, at *2-5.11 By contrast, in this case and in Navy SEALs, Plaintiffs alleged the need for
and continue to seek prospective relief, challenging the unlawful religious accommodation policy itself.

10 See, e.g., Statement of Administration Policy on H.R. 2670 (proposed 2024 NDAA) (July 10, 2023),
at p. 5 (Biden Administration opposing additional protections for non-COVID-19 vaccinated
service members because it “would prevent the Secretary from taking appropriate action in the
future should a new strain of COVID-19 again require vaccination for force health protection”),
https://www.whitehouse.gov/wp-content/uploads/2023/07/H.R.-2670-NDAA.pdf.
11 Even so, that case has not reached final resolution; the Doster plaintiffs appealed to the Sixth Circuit,
and that appeal remains pending. The Doster plaintiffs also seek attorneys’ fees based on the now-
vacated preliminary injunctions. Doster, No. 1:22-CV-84 (ECF 129). Plaintiffs here also intend to seek
fees in due course. [Doc. 131, ¶ 4]. Plaintiffs are entitled to fees even where their prevailing party status
is based solely on a preliminary injunction that is later deemed moot. See, e.g., Beta Upsilon Chi Upsilon
Chapter at Univ. of Fla. v. Machen, 446 F. App’x 192, 192-93 (11th Cir. 2011); Common Cause/Georgia v.
Billups, 554 F.3d 1340, 1355-56 (11th Cir. 2009).
Case 5:22-cv-00009-TES     Document 134     Filed 07/26/24     Page 14 of 16

 15

IV.
Conclusion
This case is not moot. Prospective claims for equitable including declaratory relief remain live.
Navy SEALs 1-26 (N.D. Tex. Feb. 14, 2024) (ECF 262). Plaintiffs challenge the Air Force’s unlawful
religious accommodation policy itself. Id.
Case 5:22-cv-00009-TES     Document 134     Filed 07/26/24     Page 15 of 16

 16

Dated: July 26, 2024

Respectfully submitted,

/s/ Michael G. McHale

Stephen Crampton, pro hac vice
THOMAS MORE SOCIETY – Senior Counsel
PO Box 4506
Tupelo, MS 38803
(662)255-9439
scrampton@thomasmoresociety.org
Michael R. Hirsh, GA #357220
Hirsh Law Office, LLC
2295 Towne Lake Parkway, Suite 116-181
Woodstock, GA 30189
(678)653-9907
michael@hirsh.law

Adam S. Hochschild, pro hac vice
Hochschild Law Firm
THOMAS MORE SOCIETY – Special Counsel
PO Box 401
Plainfield, VT 05667
(314)503-0326
adam@hochschildlaw.com

Mary Catherine Hodes, pro hac vice
THOMAS MORE SOCIETY – Senior Counsel
112 S. Hanley Rd., Second Floor
Clayton, MO 63105
(314)825-5725
mchodes@thomasmoresociety.org
Michael McHale, pro hac vice
THOMAS MORE SOCIETY – Senior Counsel
10506 Burt Circle, Ste. 110
Omaha, NE 63114
(402)501-8586
mmchale@thomasmoresociety.org

Paul M. Jonna, pro hac vice
LiMandri & Jonna LLP
THOMAS MORE SOCIETY – Special Counsel
P.O. Box 9120
Rancho Santa Fe, CA 92067
(858)759-994
pjonna@limandri.com

Counsel for Plaintiffs

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