Opening Brief Regarding Mootness
- Date
- 2024-08-16
Summary
Defendants' response to plaintiffs' opening brief regarding mootness, filed August 16, 2024 as Document 136 in Air Force Officer, et al. v. Lloyd J. Austin, III, in his official capacity as Secretary of Defense, et al., Case No. 5:22-cv-00009-TES, in the U.S. District Court for the Middle District of Georgia. The defendants argue that the Second Amended Class Action Complaint challenges only the COVID-19 vaccine requirement, not a broader religious accommodations policy, and that the case is moot. They also argue that the plaintiffs cannot amend the complaint again, that the settlement agreement in Navy SEALs has no bearing on this case, and that neither the voluntary cessation exception nor the capable of repetition yet evading review exception applies. The 17-page response is signed by the United States Attorney's Office and Department of Justice Civil Division counsel.
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Case 5:22-cv-00009-TES Document 136 Filed 08/16/24 Page 1 of 17
IN THE 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,
Plaintiffs,
v. Case No. 5:22-cv-00009-TES
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.
DEFENDANTS’ RESPONSE TO PLAINTIFFS’
OPENING BRIEF REGARDING MOOTNESS
Case 5:22-cv-00009-TES Document 136 Filed 08/16/24 Page 2 of 17
TABLE OF CONTENTS
Introduction ........................................................................................................................................................ 1
Argument ............................................................................................................................................................ 2
I. Plaintiffs Cannot Survive Mootness by Purporting to Challenge Some Broader Religious
Accommodations Policy. .............................................................................................................................. 2
A. The SAC does not challenge any broader religious accommodations policy. .......................... 2
B. Even if the SAC did challenge some broader religious accommodation policy, Plaintiffs’
claims would still fail. ................................................................................................................................ 4
II. Plaintiffs Cannot Amend The SAC. ................................................................................................... 9
III. The Settlement Agreement in Navy SEALs Has No Bearing on this Case............................10
IV. No Exceptions to Mootness Apply. .............................................................................................12
A. The exception for voluntary cessation does not apply. .............................................................12
B. The exception for capable of repetition yet evading review does not apply. .........................14
Conclusion ........................................................................................................................................................14
ii
Case 5:22-cv-00009-TES Document 136 Filed 08/16/24 Page 3 of 17
INTRODUCTION
For the first time in the history of this case, Plaintiffs now assert that their claims challenge
not the COVID-19 vaccine requirement, but rather some unidentified “broader accommodations
policy” related to all required vaccines. See, e.g., Pls.’ Opening Br. Regarding Mootness 3, ECF No.
134 (“Pls.’ Br.”). But the allegations in Plaintiffs’ Second Amended Class Action Complaint, ECF
No. 82 (“SAC”), and Plaintiffs’ requested relief relate exclusively to the alleged unlawfulness of the
COVID-19 vaccine requirement. Plaintiffs cannot rewrite their pleadings, more than two-and-a-half
years after filing this case and after two previous amendments, for the purpose of prolonging this
moot case.
In any event, even if this Court were to interpret Plaintiffs’ SAC as bringing claims against
some amorphous broader policy, Plaintiffs’ claims would still fail. Plaintiffs do not allege that they
have ever sought or been denied, or that they imminently intend to seek, a religious accommodation
for any other vaccine besides COVID-19. Plaintiffs therefore lack standing to bring a claim against
any vaccine-related policy besides the COVID-19 vaccine requirement. Similarly, because the SAC’s
allegations focus on the COVID-19 vaccine requirement, Plaintiffs also fail to state a claim regarding
any purported challenge to any vaccine-related policy besides the COVID-19 vaccine requirement.
And allowing Plaintiffs to amend their pleadings—for the third time in this case—would be both futile
and not in the interests of justice.
None of Plaintiffs’ remaining attempts to resuscitate this case have merit. Plaintiffs cannot
save their moot claims with reference to a settlement agreement entered in an entirely separate case
challenging the Navy’s COVID-19 vaccine requirement. Preliminarily, the mootness decision in that
case was wrongly decided and contrary to every other court to have considered the question.
Moreover, the terms of that Navy settlement have no bearing on this case, and—contrary to Plaintiffs’
novel constitutional interpretation—the Fifth Amendment does not require the Government to settle
1
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two different cases the same way. Finally, as Defendants explained in their opening brief, see Defs.’
Briefing on Mootness, ECF No. 133 (“Defs.’ Br.”), no exceptions to mootness apply here. 1
ARGUMENT
I. Plaintiffs Cannot Survive Mootness by Purporting to Challenge Some Broader Religious
Accommodations Policy.
Plaintiffs have only ever purported to challenge the COVID-19 vaccine requirement. The
SAC contains no allegations supporting a challenge to some “broader” policy regarding religious
accommodations for other vaccines. Regardless, even if this Court were to interpret Plaintiffs’ SAC
as challenging some broader policy, such challenges would fail.
A. The SAC does not challenge any broader religious accommodations policy.
Plaintiffs’ SAC facially does not challenge any broader “religious accommodations policy.”
Pls.’ Br. at 6. Plaintiffs have consistently only ever purported to challenge Defendants’ requirement
that Plaintiffs receive the COVID-19 vaccine, including the denial of religious accommodation
requests thereto and any associated adverse action. See, e.g., SAC ¶ 2 (“In this lawsuit Plaintiffs
challenge Defendants’ military and federal civilian employee COVID-19 vaccine mandates.”); Pls.’
Mem. in Supp. of Mots. to Certify Class, to Appoint Class Counsel, & for Class-Wide Prelim. Inj. 8,
ECF No. 88-1 (seeking to certify a class based on the alleged common issue of “wrongful denial of
religious accommodation requests” to the COVID-19 vaccine requirement); Pls.’ Opp’n to Defs.’
Mot. to Dismiss 1, ECF No. 101 (“Plaintiffs, individually and on behalf of a putative class, allege that
these denials of religious accommodation [to the COVID-19 vaccine requirement] are discriminatory
and unlawful under the Religious Freedom Restoration Act (“RFRA”) and the First Amendment.”).
Nowhere have Plaintiffs ever previously purported to challenge Defendants’ general accommodation
1 Plaintiffs’ brief appears to forfeit any arguments regarding the civilian COVID-19 vaccine
requirement by failing to engage in any substantive discussion of that requirement. Accordingly, Defendants
do not readdress those claims in this brief.
2
Case 5:22-cv-00009-TES Document 136 Filed 08/16/24 Page 5 of 17
policies or the denial of an accommodation request to any vaccine besides COVID-19.
Plaintiffs’ own SAC belies their assertions otherwise. Plaintiffs’ SAC seeks relief only as to
Defendants’ “Mandates,” SAC at 47–48, which Plaintiffs define as including: “The DoD Military
Mandate, Air Force Military Mandate, President’s Federal Employee Mandate, Air Force Military
Order to Air Force Officer, Air Force Military Order to Air Force NCO, Air Force Military Order to
OSI Personnel, DoD Civilian Mandate, Air Force Civilian Mandate, and any and all other related
vaccine mandate orders,” id. ¶ 49 (emphasis added). 2 By Plaintiffs’ own definition, then, the SAC
challenges only the COVID-19 requirement. Because none of Plaintiffs’ requested relief is available,
this case is moot. See Defs.’ Br. at 11–12 (explaining why each of Plaintiffs’ requested relief is moot).
The mere fact that the SAC refers broadly to “Defendants’ orders, policies, and actions,” Pls.’
Br. at 6–7 (quoting SAC ¶¶ 10–11, 183, 196, 199, 236), does not allow Plaintiffs to newly sweep any
and all DoD or Air Force vaccine-adjacent policies within the SAC’s purview, regardless of whether
Plaintiffs have alleged any facts related to such policies, see, e.g., Lowe v. Mills, --- F. Supp. 3d ---, 2024
WL 756792, at *3–*4 (D. Me. Feb. 23, 2024), appeal filed, No. 24-1283 (1st Cir. Mar. 29, 2024)
(interpreting narrowly plaintiffs’ challenges to COVID-19 vaccine “mandate” as excluding any
challenge to the underlying statutory authority). Indeed, the Eleventh Circuit just recently reaffirmed
in binding authority that a plaintiff’s alleged future injury cannot save a moot case where such
allegations are not explicitly and “concretely” set forth in the operative pleading. See Graham v. Att’y
2 Plaintiffs further define each of these terms accordingly: the “DoD Military Mandate” is Secretary
Austin’s August 24, 2021 memorandum, SAC ¶ 30; the “Air Force Military Mandate” is Secretary Kendall’s
September 3, 2021 memorandum, id. ¶ 38; the “President’s Federal Employee Mandate” is President Biden’s
Executive Order 14043, id. ¶ 40; the “Air Force Military Order to OSI Personnel” is a September 13, 2021
memorandum directing vaccination of Office of Special Investigations active duty and reserve personnel, id.
¶ 44; the “DoD Civilian Mandate” is Deputy Secretary Hicks’ October 1, 2021 memorandum, id. ¶ 45; and the
“Air Force Civilian Mandate” is Secretary Kendall’s October 8, 2021 memorandum, id. ¶ 47. Plaintiffs do not
explicitly define “Air Force Military Order to Air Force Officer” or “Air Force Military Order to Air Force
NCO,” but these terms presumptively refer to the Air Force’s final denials of Air Force Officer’s and Air Force
NCO’s requests for a religious accommodation, respectively. See id. ¶ 5.
3
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Gen., State of Georgia, --- F.4th ---, 2024 WL 3633374, at *6 (11th Cir. Aug. 2, 2024) (“[E]ven assuming,
as [the plaintiffs] argue, that ‘the [challenged] campaign-finance rules affect candidate recruitment and
fundraising plans for future elections,’ their complaint failed to allege anything related to . . . future
campaigns.”). Because of these shortcomings, the SAC “fails to present a live controversy with respect
to which the court can give meaningful relief.” Id. (quoting Wood v. Raffensperger, 981 F.3d 1307, 1316
(11th Cir. 2020)) (internal quotations omitted).
It is telling that the plaintiffs in Doster v. Kendall, No. 1:22-CV-84 (S.D. Ohio), did not attempt
to argue that their own requests for prospective relief were live. Plaintiffs here believed the claims in
Doster to be so similar to their own that Plaintiffs sought a stay of all proceedings pending final
resolution in Doster. Plaintiffs told this Court that “[i]f final, permanent class-wide relief is ultimately
issued in Doster (involving RFRA and First Amendment claims) after exhaustion of all appeal rights,
then Plaintiffs would likely face no prospect of injury as to the military mandate.” Pls.’ Mot. to Stay
Counts I & II 2, ECF No. 121. Yet the Doster plaintiffs conceded mootness as to their requests for
prospective relief. See Doster v. Kendall, No. 1:22-CV-84, 2024 WL 1156426, at *1 (S.D. Ohio Mar. 18,
2024), appeal filed, No. 24-3404 (6th Cir. May 9, 2024). The Doster plaintiffs therefore clearly did not
believe that their claims challenged some “broader accommodations policy.” Plaintiffs’ sudden
attempts to distance themselves from Doster ring hollow given that Plaintiffs once confirmed that final
relief in Doster would likely resolve their own claims.
B. Even if the SAC did challenge some broader religious accommodation policy,
Plaintiffs’ claims would still fail.
Even if this Court were to interpret the SAC as challenging some “broader accommodations
policy,” such challenges would fail on their face. Plaintiffs fail to plead any facts supporting such
hypothetical claims. Indeed, the SAC is so lacking in allegations related to challenges against any
“broader vaccine accommodations policy” that it is difficult to parse all the many resulting legal
defects. At minimum, however, Plaintiffs fail to meet basic pleading requirements and fail to allege
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any injury sufficient to support standing.
To state a claim for which relief can be granted, a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Here,
Plaintiffs fail to even identify any particular live policy (or other agency action) that they purport to
challenge—either in the SAC or even in their mootness briefing. Plaintiffs merely refer vaguely to
some alleged, unidentified “broader vaccine accommodations policy.” See, e.g., Pls.’ Br. at 3. But
Plaintiffs plead no facts related to this alleged broader policy, and it is not otherwise clear what alleged
policy they now purport to challenge as illegal. For example, while the SAC alleges that Defendants
had an unlawful policy of denying religious accommodations to the now-defunct COVID-19 vaccine
requirement, the SAC includes no allegations—not even conclusory allegations—that Defendants had
an unlawful policy of denying religious accommodations to any other required vaccine. Plaintiffs’
conclusory assertion that Defendants have an “illusory and insincere [broader] religious
accommodations process” that “enabled . . . coercive and discriminatory treatment,” id. at 7—made
for the first time in their mootness briefing and unaccompanied by any non-COVID-19-related
allegations—does not support a claim.
Even if Plaintiffs had identified a particular policy, Plaintiffs fail to make a prima facie case
that such a policy violates RFRA or the First Amendment. 3 To plead claims under RFRA and the
First Amendment, a plaintiff must allege that she has sincere religious beliefs that are contrary to some
3 Plaintiffs do not appear to argue that they retain a live Administrative Procedure Act (“APA”) claim,
but to the extent that they do, such claim would also fail. Plaintiffs’ APA claim is exclusively premised on
COVID-19 and is therefore moot. In particular, Plaintiffs’ APA claim is premised on the theory that
“Defendants wrongfully denied Plaintiffs . . . the opportunity to seek . . . a medical exemption [to the COVID-
19 vaccine] based on their natural immunity” to COVID-19. SAC ¶ 355. Because the COVID-19 vaccine
requirement no longer exists, this claim that Defendants wrongfully denied a medical exemption to COVID-
19 is moot.
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particular policy. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 717 n.28 (2014). Here, Plaintiffs
have not demonstrated what specific “contested exercise” remains before the Court. See Kennedy v.
Bremerton Sch. Dist., 597 U.S. 507, 525 (2022). The SAC’s allegations regarding Plaintiffs’ religious
beliefs are focused exclusively on religious opposition to the COVID-19 vaccine. See SAC ¶¶ 91–95
(alleging that Plaintiffs oppose the COVID-19 vaccines because each was “derived from or tested on
aborted fetal tissue” and because “getting injected with a novel substance of unknown long-term
effects would violate [their] belief” “that the ‘body is the temple of the Holy Spirit’”). Plaintiffs do
not allege that they hold religious beliefs that are contrary to receiving any other vaccine besides
COVID-19. See generally SAC. Indeed, Plaintiffs expressly allege that they “do not oppose all
vaccines.” Id. ¶ 96. Plaintiffs have therefore failed to state a claim under RFRA or the First
Amendment challenging a “broader accommodations policy.”
Relatedly, Plaintiffs have also failed to allege that they have been or will be injured by a
“broader accommodations policy.” Plaintiffs do not allege that they have ever sought or been denied
a religious accommodation for any other vaccine besides COVID-19. Nor do Plaintiffs allege that
they intend to seek a religious accommodation for any other vaccine besides COVID-19, much less
imminently so. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); see also, e.g., Jackson v. Mayorkas,
No. 4:22-cv-0825-P, 2023 WL 5311482, at *2 (N.D. Tex. Aug. 17, 2023), appeal filed, No. 23-11038
(5th Cir. Oct. 11, 2023) (holding moot challenge to Coast Guard’s COVID-19 vaccine requirement
because “Plaintiffs identify no threat of imminent future harm from the [now-defunct] Mandate”).
And even if Plaintiffs had alleged that they intended to imminently seek a religious accommodation
for some other vaccine besides COVID-19—which they do not—Plaintiffs allege no facts indicating
that such request would be denied. As explained above, Plaintiffs’ entire SAC is focused on
Defendants’ alleged policy related to religious accommodations to the COVID-19 vaccine. While
Plaintiffs allege that “[t]he Air Force has not approved any or essentially any of the 7,500+ religious
6
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accommodation requests” to the COVID-19 vaccine, SAC ¶ 6, Plaintiffs do not allege that Defendants
have discriminately denied religious accommodations to any other vaccine. Plaintiffs have thus failed
to establish injury sufficient to support standing. Plaintiffs cannot base their claims on “hypothetical
questions” about some broader accommodations policy that simply “pique [their] curiosity.” FBI v.
Fikre, 601 U.S. 234, 241 (2024).
For the first time in their mootness briefing, Plaintiffs argue that they have suffered injury in
the form of “hesitance to use the accommodations process going forward for any religious
accommodation.” Pls.’ Br. at 9 (citation omitted). But the SAC contains no such allegations about
“hesitance.” See generally SAC. Nor, again, have Plaintiffs pled any facts indicating that they intend to
seek, or have been chilled from seeking, a religious accommodation for any other vaccine. Regardless,
any such alleged chilling injury would derive from the COVID-19 vaccine requirement and Plaintiffs’
allegations related thereto, not some “broader accommodation policy.” And as Defendants have
explained, every court to have considered the issue—with a single outlier—has found challenges to
the COVID-19 vaccine requirement to be moot. See Defs.’ Br. at 9–10. Plaintiffs cannot manufacture
injury, no more than they can rewrite the SAC.
Finally, Plaintiffs attempt to hang their entire case on analogy to U.S. Navy SEALs 1–26 v.
Biden, No. 4:21-cv-1236 (N.D. Tex.) (“Navy SEALs”). The court there denied the Navy’s motion to
dismiss the case as moot—though the court emphasized that, “[c]ritically, . . . this is a preliminary
conclusion.” See Navy SEALs, No. 4:21-cv-1236, Order 18, ECF No. 262 (N.D. Tex. Feb. 14, 2024)
(“Navy SEALs Order”) (attached as Exhibit A). But, as Defendants have explained, Navy SEALs was
the single outlier in a sea of mootness dismissals to challenges to military COVID-19 vaccine
requirements. See Defs.’ Br. at 9–10. Indeed, Navy SEALs was incorrectly decided for all the same
reasons explained previously, see id. at 10 n.1, and above, see supra p. 4–6. The court found that the
plaintiffs’ challenges to DoD and the Navy’s COVID-19 vaccine requirements were not moot based
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on harms “arising from the Navy’s broader religious accommodations policy itself.” Navy SEALs
Order at 7. But the court’s cited “harms” all arose from the COVID-19 vaccine requirement, not
some “broader” policy governing all required vaccines. For example, the court cited such ongoing
problems as the Navy “indefinitely sitting on requests for religious accommodation,” “foregoing the
required individualized assessments,” and “authorizing Navy leadership to dictate denial of all
requests.” Id. at 7–8. But neither the plaintiffs in Navy SEALs nor Plaintiffs here have ever alleged
that such “problems” have occurred outside the context of the COVID-19 vaccine requirement.
A court within the Middle District of Florida recently rejected the same argument that was
adopted in Navy SEALs. There, the court explained:
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 v. Austin, No. 3:22-cv-580-MMH-MCR, 2023 WL 4352445, at *8 (M.D. Fla. July 5, 2023).
Indeed, while the Government believes Navy SEALs was wrongly decided regardless, the court there
distinguished Bongiovanni on the basis of the pleadings. The court found that, in contrast to Biongiovanni,
the Navy SEALs plaintiffs “actually asserted—prior to recission of the Mandate—that their underlying
harms derive from the lack of a proper religious accommodation process, rather than exclusively from
the Mandate itself.” Navy SEALs Order at 9. In particular, the plaintiffs had expressly alleged that
“[i]n the past seven years, no religious exemption from vaccination waivers were approved for any other
vaccine” by the Navy. Navy SEALs, No. 4:21-cv-01236, First Am. Class Action Compl. ¶ 41, ECF
No. 84 (N.D. Tex. Jan. 24, 2022) (emphasis added); see also Navy SEALs Order at 14. Here, unlike in
Navy SEALs but as in Bongiovanni, there is no allegation that any DoD or Air Force policy is
accompanied by a general lack of “meaningful religious accommodations.” See Bongiovanni, 2023 WL
8
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4352445 at *10; see also Schelske v. Austin, No. 6:22-CV-049-H, 2023 WL 5986462, at *14 (N.D. Tex.
Sept. 14, 2023) (rejecting the plaintiffs’ attempt to recharacterize their challenge to DoD COVID-19
vaccine requirement as a challenge to some broader accommodations policy). Thus, to the extent it
matters, the SAC in this case is far more closely aligned to the pleadings in Bongiovanni than Navy
SEALs.
This case is further distinct from Navy SEALs in material ways. Here, unlike in Navy SEALs,
there is no certified class, and none of the four named Plaintiffs have identified—much less alleged in
the SAC—any ongoing or future injury to themselves. Again, like the servicemembers in Bongiovanni,
the named Plaintiffs here sought discrete religious exemptions specifically in connection with the
COVID-19 vaccine mandate. Moreover, Navy SEALs involved specific allegations regarding the
Navy’s policies, not the Air Force’s policies. See Navy SEALs Order at 14; Am. Compl., Navy SEALs,
ECF No. 84 ¶ 41 (attached as Exhibit B). Plaintiffs’ SAC makes no such allegations related to any
“broader” accommodations process, and Plaintiffs cannot rewrite those allegations now. To the
contrary, the SAC alleges that the Plaintiff’s “Exercise of Religion” is being infringed upon in violation
of the RFRA and the First Amendment to the extent that they object to being vaccinated for COVID-
19, along with “[m]ore than 7,500 other Air Force service members [who] share Plaintiffs’ religious
objection to being vaccinated for COVID-19.” SAC ¶¶ 217, 283 (emphasis added). Even Navy SEALs
criticized the practice of “attempting to reformulate . . . Mandate-specific claims in order to survive the
mootness challenge.” Navy SEALs Order at 14 (citing Bongiovanni, 2023 WL 4352445, at *8) (emphasis
added).
II. Plaintiffs Cannot Amend The SAC.
This Court should reject Plaintiffs’ perfunctory request for leave to amend the SAC, see Pls.’
Br. at 8 n.2, because amendment would be futile. As explained above, even if this Court were to
interpret the SAC as bringing claims against some unspecified, broader “religious accommodations
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policy,” such claims would fail on their face. Plaintiffs have not and cannot state claims for which
relief can be granted as to an alleged broader religious accommodations policy nor establish standing
to bring such claims.
Moreover, allowing Plaintiffs to amend their operative pleading for the third time when the
actual case before the Court is clearly moot would not be in the interests of justice. “Though courts
‘freely give leave [to amend] when justice so requires,’ . . . justice does not require permitting the
Plaintiffs to further amend the Amended Complaint to drastically broaden the scope of their claims.”
Lowe, 2024 WL 756792, at *5 (quoting Fed. R. Civ. P. 15(a)(2)) (denying healthcare workers leave to
amend complaint in action challenging COVID-19 vaccine requirement that had become moot).
Plaintiffs do not explain how they would amend the complaint, but any amendment adding a new
challenge to some “broader accommodations policy” would necessarily drastically broaden the scope
of the SAC. As explained above, the SAC focuses exclusively on the now-defunct COVID-19 vaccine
requirement. Any amendment would thus necessarily be comprised of entirely novel allegations.
Plaintiffs should not be allowed amendment merely to prolong a moot case.
III. The Settlement Agreement in Navy SEALs Has No Bearing on this Case.
Plaintiffs make the novel argument that the Government’s settlement in Navy SEALs, an
entirely separate case, independently establishes that this case is not moot. Preliminarily, Plaintiffs’
citation to the Navy SEALs settlement as evidence of Government admission is facially improper.
Plaintiffs assert that the settlement “demonstrates that the military itself acknowledges there is some
relief that can be granted to service members.” Pls.’ Br. at 11. But the terms of the settlement in that
case explicitly state that the settlement “is not intended and shall not be deemed an admission by any
Party of the merit or lack of merit of an opposing Party’s claims or defenses,” and it “may not be used
as evidence or otherwise in any civil or administrative action or proceeding against Defendants or the
United States.” Navy SEALs, No. 21-cv-01236, App’x in Supp. of Unopposed Mot. 18 ¶ 44, ECF
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No. 279 (N.D. Tex. May 31, 2024) (“Navy SEALs Settlement Agreement”) (attached as Exhibit C).
In any event, the terms of the settlement have no bearing on the mootness question here. The
Government in Navy SEALs ultimately settled only after the court there held—incorrectly, as the
Government reiterates—that the case was not moot. Plaintiffs cannot rely on a settlement agreement
entered into after a mootness decision to support their mootness arguments here. Moreover, the relief
to which the Navy agreed to provide to the class in the Navy SEALs settlement has no bearing on the
contents of the SAC in this case. Plaintiffs insist that the settlement proves that “there is some relief
that can be granted to service members.” Pls.’ Br. at 11. But the relevant inquiry is whether this Court
can provide any of the relief requested in Plaintiffs’ complaint, not whether there is any relief available
within the universe of all relief that could have been requested. See Graham, 2024 WL 3633374, at *6
(rejecting the plaintiffs’ attempt to rewrite the complaint to avoid mootness). And indeed, Plaintiffs’
SAC does not seek any of the relief that the Government agreed to provide the plaintiffs in Navy
SEALs. Compare SAC at 47–48 with Navy SEALs Settlement at 8–11 ¶¶ 17–25. Plaintiffs’ case is
moot, and the settlement agreement in an entirely separate case has no bearing on that fact.
Finally, Plaintiffs’ inexplicable reference to equal protection has no relevance here. Plaintiffs
do not bring an equal protection claim in this case, and they cannot suddenly import an entirely new
constitutional claim via mootness briefing. Regardless, it should go unsaid that equal protection does
not demand that the Government settle a case simply because it settled a similar but separate case.
Even if Plaintiffs here were similarly situated to the Navy service members in Navy SEALs—which
they are not—the Government has a rational basis for treating two cases with different parties, a
different class nature, different case history, and at different stages of proceedings, among other things,
differently. See Jones v. Governor of Fla., 950 F.3d 795, 809 (11th Cir. 2020) (“Under rational basis review,
a law must be rationally related to a legitimate governmental interest and it ‘must be upheld against
equal protection challenge if there is any reasonably conceivable state of facts that could provide a
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rational basis for the classification’ between persons.” (quoting FCC v. Beach Commc’ns, Inc., 508 U.S.
307, 313 (1993))).
IV. No Exceptions to Mootness Apply.
As Defendants have previously explained, no exceptions to mootness apply here. See Defs.’
Br. at 16–20.
A. The exception for voluntary cessation does not apply.
As every court to have considered the issue has agreed, the exception for voluntary cessation
does not apply here. See id. at 9–10 (collecting cases); see also, e.g., Robert v. Austin, 72 F.4th 1160, 1165
(10th Cir. 2023), cert. denied, 144 S. Ct. 573 (2024) (“The voluntary cessation exception offers Appellants
no relief because the government has met its arduous burden of showing the allegedly wrongful
behavior could not reasonably be expected to recur.”).
The fact that Defendants’ rescission of the COVID-19 vaccine requirement went further than
the NDAA required, see Pls.’ Br. at 11–12, does not trigger the exception. As one district court
explained, “it would bely logic to conclude” that the NDAA required rescission of the COVID-19
vaccine requirement but not rescission of its associated policies and procedures. Schelske, 2023 WL
5986462, at *10 (“To preserve guidance that served solely to implement the vaccine mandate would
render the mandate effective in practice and Congress’s order to rescind it meaningless. . . . [W]ith
the rescission of the mandate, the authority conferred to the military to execute implementing guidance
was likewise rescinded.”). Regardless, if anything, the fact that Defendants rescinded more than the
NDAA explicitly required only highlights Defendants’ commitment to halting the challenged policies.
See U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 674 (5th Cir. 2023) (rejecting application of voluntary-
cessation doctrine in challenge to Navy’s COVID-19 vaccine requirement because, in part, Navy
“promulgated multiple binding policies going beyond what Congress required to eradicate the effects
of the mandate” (emphasis added)).
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Moreover, as Defendants explained, “governmental entities and officials have been given
considerably more leeway than private parties in the presumption that they are unlikely to resume
illegal activities.” Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328–29 (11th Cir. 2004);
see also Defs.’ Br. at 17. Plaintiffs offer nothing to combat that presumption except a
mischaracterization of the Supreme Court’s recent decision in FBI v. Fikre, 601 U.S. at 241. Plaintiffs
suggest, see Pls.’ Br. at 13, that Fikre overruled longstanding, cross-circuit doctrine providing for the
presumption that the Government is unlikely to resume ceased challenged conduct. But Fikre merely
confirmed that voluntary cessation moots a case only if “the defendant can show that the practice
cannot ‘reasonably be expected to recur,’” which “standard holds for governmental defendants no less
than for private ones.” Fikre, 601 U.S. at 235 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000)).
Thus, in Fikre, the Government’s removal of the plaintiff from the No Fly List and a “sparse
declaration” attesting that the plaintiff would “not be placed [back] on the No Fly List in the future
based on the currently available information” was insufficient to moot the case because the
Government had failed to establish that it would not relist plaintiff if he did the same or similar things
in the future. Id. at 241–42. In other words, although the Government attested that it had ceased the
challenged conduct, it did not sufficiently demonstrate that the challenged conduct would not occur
again. And the Government, like private parties, must establish that the challenged conduct will not
occur again. Fikre thus did not disturb the presumption of regularity that attaches to the
Government’s establishment that conduct will not occur again. 4
4 Had the Court intended to overrule the presumption of regularity that attaches to the Government
actions, including the Government’s voluntary cessation of challenged conduct, it would have done so
expressly. The Supreme Court has repeatedly reaffirmed that a presumption of regularity attaches to the actions
of the Government. See, e.g., USPS v. Gregory, 534 U.S. 1, 10 (2001). In keeping with that precedent, “the
Supreme Court has held almost uniformly that voluntary cessation by a government defendant moots the
claim.” Keohane v. Fla. Dep’t of Corr. Sec’y, 952 F.3d 1257, 1268 (11th Cir. 2020) (quoting Nat’l Ass’n of Bds. of
13
Case 5:22-cv-00009-TES Document 136 Filed 08/16/24 Page 16 of 17
Fikre also turned on highly context-specific reasons that the Court found the Government’s
assurances lacking—issues not present here. Because of the secrecy inherent in national security
matters including the No Fly List, the Government could not say what led it to take the challenged
action of placing the plaintiff on the List, nor why he was removed, and so the Court had no way to
know what actions might cause the Government to place the Plaintiff back on the list. Here, in
contrast, the mootness issue is straightforward. The NDAA required Defendants to rescind the
COVID-19 vaccine requirement. Defendants did so, and more. And Defendants have repeatedly
established that they will not reinstate another COVID-19 vaccine requirement. See Defs.’ Br. at 17–
18. As every other court has held, the exception to voluntary cessation thus does not apply here.
B. The exception for capable of repetition yet evading review does not apply.
Plaintiffs summarily assert in a footnote that the exception for conduct that is capable of
repetition yet evades review also applies here. See Pls.’ Br. at 13 n.9. Plaintiffs’ conclusory statement
does not make it true. That exception does not apply for all the reasons Defendants have previously
explained. See Defs.’ Br. at 18–19. 5
CONCLUSION
For the foregoing reasons, the Court should dismiss Plaintiffs’ SAC in its entirety.
Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1310 (11th Cir. 2011)). The Supreme Court has
instructed courts to resist finding its decisions overruled by implication. See Mallory v. Norfolk S. Ry. Co., 600
U.S. 122, 136 (2023); see also Ramos v. Louisiana, 590 U.S. 83, 123 n.4 (2020) (Kavanaugh, J., concurring in part)
(“[T]he Court typically does not overrule a precedent unless a party requests overruling, or at least unless the
Court receives briefing and argument on the stare decisis question.”). Accordingly, this Court should not find
the presumption of regularity overruled by implication here, nor should it reverse course on the solicitude
granted where the Government halts challenged conduct. Regardless, even if the presumption did not apply
here, the exception for voluntary cessation would still not apply here for all the reasons explained above.
5 Plaintiffs summarily claim entitlement to fees in a footnote. See Pls.’ Br. at 14 n.11. Defendants will
respond to that issue if and when Plaintiffs move for fees.
14
Case 5:22-cv-00009-TES Document 136 Filed 08/16/24 Page 17 of 17
Dated: August 16, 2024 Respectfully submitted,
PETER D. LEARY BRIAN M. BOYNTON
United States Attorney Principal Deputy Assistant Attorney General
Middle District of Georgia Civil Division
/s/ Lance Simon ALEXANDER K. HAAS
LANCE SIMON Director
Assistant United States Attorney Federal Programs Branch
Georgia Bar No. 447643
ROGER C. GRANTHAM, JR. LAUREN A. WETZLER
Assistant United States Attorney Deputy Director
Georgia Bar No. 860338 Federal Programs Branch
United States Attorney’s Office
300 Mulberry St., Suite 400 /s/ Cassandra Snyder
P.O. Box 1702 ANDREW E. CARMICHAEL
Macon, GA 31202 Senior Trial Counsel
Tel: (478) 621-2663 CODY T. KNAPP
Email: lance.simon@usdoj.gov CASSANDRA M. SNYDER
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 451-7729
Email: cassandra.m.snyder@usdoj.gov
Counsel for Defendants
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