Plaintiffs’ Response Brief Regarding Mootness

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Plaintiffs' Response Brief Regarding Mootness, Case 5:22-cv-00009-TES, Document 135, filed 08/16/24, in the United States District Court for the Middle District of Georgia, Macon Division. The brief argues that Plaintiffs' claims are not moot because, as in the Navy SEALs decision, Plaintiffs challenge the religious accommodation process itself, and that Air Force NCO retired early because of hesitance to use it again. It also argues that the request for declaratory relief related to the COVID-19 vaccine is not moot under the voluntary cessation doctrine and the doctrine of capable of repetition but evading review. The signature block names /s/ Adam S. Hochschild.

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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
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AIR FORCE ENGINEER, on behalf of
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themselves and all others similarly situated,
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Case No. 5:22-cv-00009-TES

Plaintiffs,
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v.

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

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Defendants.

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PLAINTIFFS’ RESPONSE BRIEF REGARDING MOOTNESS

Plaintiffs’ claims are not moot. The Navy SEALs mootness decision demonstrates that
Plaintiffs here, like the Navy SEALs plaintiffs, allege viable claims challenging the religious
accommodation process itself. The Air Force disregards that decision as an “outlier,” but it is the most
directly relevant case. Like the Navy SEALs plaintiffs, Plaintiffs here are reasonably hesitant to submit
any other religious accommodation requests because the sham process remains in place. Plaintiff Air
Force NCO retired early because of this hesitance. And the Air Force ignores altogether the settlement
recently finalized in Navy SEALs and the settlement’s impact on the present case.
Plaintiffs’ request for declaratory relief related specifically to the COVID-19 vaccine is not
moot under the voluntary cessation doctrine and the related doctrine of capable of repetition but
evading review. The Air Force ignores the Supreme Court’s recent unanimous decision in FBI v. Fikre,
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601 U.S. 234 (2024), and relies on testimony to Congress that confirms the Air Force fails to meet its
formidable burden of showing the challenged practice cannot reasonably be expected to recur.
A.
 As in Navy SEALs, Plaintiffs challenge the religious accommodation policy itself.
The Air Force identifies the Navy SEALs decision in a single footnote, dismissing the case as
an “outlier.” Air Force Op. Br. at 1, 10 n.1. The Navy SEALs decision is an outlier only insofar as the
allegations there included a challenge to the broader religious accommodation process itself, unlike,
the court held, several other military vaccine cases it distinguished. Pls. Op. Br. at 10 n.4. As discussed
at length in Plaintiffs’ opening brief, Plaintiffs here make even stronger allegations challenging the
policy than the plaintiffs in Navy SEALs. Id. at 8-10.
The Air Force asserts that Navy SEALs was “incorrectly decided” because plaintiffs faced no
cognizable injury. Air Force Op. Br. at 10 n.1. Not so. The Navy defendants—including Defendant
Secretary Austin who is also a defendant in this case—never appealed the Navy SEALs decision, so
the assertion that the decision was “incorrectly decided” rings hollow. In any event, as here, the Navy
SEALs alleged a cognizable injury in that the requested relief was tied to “present and future harms
due to hesitance to use the accommodations process going forward for any religious accommodation.” Navy
SEALs 1-26 (N.D. Tex. Feb. 14, 2024) (ECF 262 (Exhibit A to Pls. Op. Br.) at 8) (emphasis added).
See also Pls. Op. Br. at 9.
Indeed, Plaintiff Air Force NCO retired from service because of his hesitance to use the
accommodation process going forward for any religious accommodation. See Declaration of Air Force
NCO (Exhibit B hereto) at ¶¶ 2-6. He had religious objections to other vaccines he reasonably
expected the Air Force would order him to take, and he was reasonably concerned that the Air Force
would subject him to the same illusory and insincere religious accommodation process. Id. at ¶ 6.
Instead of again facing this illusory and insincere process, Air Force NCO chose to retire early. Id. at
¶¶ 5-6.
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The other Plaintiffs—Air Force Officer,1 Air Force Special Agent, and Air Force Engineer—
are also hesitant to use the accommodation process again. See ¶¶ 2-4 of Declarations of Air Force
Officer, Air Force Special Agent, and Air Force Engineer (Exhibits C, D, and E hereto). This hesitance
is reasonable and is not, as the Air Force characterizes it (Air Force Op. Br. at 12, 13, 18), merely
“hypothetical.” Navy SEALs 1-26 (N.D. Tex. Feb. 14, 2024) (ECF 262 at 8-9). Air Force NCO, for
one, chose to retire based on this hesitance. Decl. of Air Force NCO at ¶¶ 2-6. Plaintiffs are all well
aware the Air Force hasn’t changed its practice of failing to make an individualized “to the person”
assessment of an accommodation request. Id. at ¶ 3; Decl. of Air Force Officer at ¶ 3; Decl. of Air
Force Special Agent at ¶ 3; Decl. of Air Force Engineer at ¶ 3.2 To have standing, Plaintiffs need not
prove that the military has already denied other accommodation requests beyond those for the
COVID-19 vaccine. Navy SEALs 1-26 (N.D. Tex. Feb. 14, 2024) (ECF 262 at 8-9). It is enough to be

1 The Air Force states that “Air Force Officer had also submitted a request for military retirement, but
she successfully rescinded that request on May 20, 2022 and is no longer being processed for
retirement.” Air Force Op. Br. at 13 n.2. To be clear, Air Force Officer submitted that request for
retirement under protest; she was “stripped of her duties, benefits, and pay, and forced into early
retirement for showing fidelity to her religious beliefs.” Air Force Officer v. Austin, 588 F. Supp. 3d 1338,
1347, 1356 (M.D. Ga. 2022) (cleaned up). This Court issued a preliminary injunction enjoining adverse
action against her, “specifically including forcing her to retire.” Id. at 1357. That preliminary injunction
allowed Air Force Officer to rescind her forced early retirement. Id.

2 The Air Force tries to justify its practice of wholesale denial of religious accommodation requests
based at least in part on a claimed need to consider the “collective impact” of accommodations on
“[r]eadiness and deployability.” [Doc. 133-4 at 5]. Plaintiffs maintain this violates the requirement of
making an individualized “to the person” assessment of each accommodation request under the
Religious Freedom Restoration Act (RFRA). See Air Force Officer, 588 F. Supp. 3d at 1353 (“RFRA
requires the Government to demonstrate that the compelling interest test is satisfied through
application of the challenged policy ‘to the person’—the particular claimant whose sincere exercise of
religion is being substantially burdened…. Thus, the Court must look beyond broadly formulated
interests, such as maintaining the health and readiness of military forces and instead consider the
asserted harm of granting specific exemptions to particular religious claimants.”) (cleaned up). See also
Pl. Op. Br. at 2-4, 6-8 (detailing Plaintiffs’ challenge to the sham accommodation policy itself).
Plaintiffs intend to pursue this challenge if the Court finds the case is not moot.

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reasonably hesitant, given their past experience with the sham process, the military’s failure to fix it,
and service members’ concern that future accommodation requests would be subject to the same
sham process.3 Id. Cf. Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1124 (11th Cir. 2022) (“Because the
bias-related-incidents policy objectively chills student speech, Speech First’s members have standing
to challenge it.”).
While the Air Force tries to downplay the Navy SEALs mootness decision, the Air Force
makes no mention whatsoever of the court-approved settlement in that case. The Navy chose not to
appeal the mootness decision and then agreed to a settlement consistent with the decision and
favorable to religious objectors. Pls. Op. Br. at 10-11. As discussed in Plaintiffs’ opening brief, the
court-approved Navy settlement agreement further demonstrates the need for relief here. Id.
B.
Voluntary cessation of additional restrictions also prevents mootness.
The Air Force argues the voluntary cessation doctrine doesn’t apply because the recission of
the military4 vaccine mandate was involuntary. Air Force Op. Br. at 16. While the rescission of the
2021 mandate itself was involuntary in that the 2023 NDAA compelled the rescission, any restoration
of Air Force service members to full participation was and is voluntary. Pls. Op. Br. at 11-12. The NDAA did
not require or even address such restoration. Therefore the voluntary cessation doctrine applies to any
such voluntary efforts to restore service members to full participation.

3 Even if retired Air Force NCO himself no longer has an ongoing personal stake in this case, the
other Plaintiffs do. In any event, Air Force NCO’s decision to retire, a result of the Air Force’s refusal
to fix its illusory and insincere religious accommodation process, is directly relevant to the standing of
other religious-objector service members who are still in the Air Force including the three other
Plaintiffs.

4 The Air Force does not and cannot contend that the federal civilian employee vaccine mandate was
involuntarily rescinded. Air Force Op. Br. at 20. Of the four Plaintiffs, the federal civilian employee
mandate applied only to Air Force Officer. See Second Amended Class Action Complaint, ¶¶ 62, 110-
111, 121, 126-130.
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Ignoring Fikre, the Supreme Court’s recent 9-0 voluntary-cessation decision, the Air Force
relies on military leaders’ Congressional testimony (Air Force’s Exhibits B & D [Docs. 133-2 and 133-
4]) to support its claim there’s “no indication” any COVID-19 vaccine requirements will be reinstated
(Air Force Op. Br. at 17). The testimony supports Plaintiffs’ position, not the Air Force’s; it proves
that the challenged practice can reasonably be expected to recur and that the case is therefore not moot
under Fikre. For example, Under Secretary Ortiz Jones testified that “there may be situations in the
future when vaccination status will be a consideration.” [Doc. 133-4 at 6]. And Under Secretary
Cisneros testified that “[t]he future course of the COVID-19 pandemic is unknown. The Department
must maintain its flexibility to adjust policies as needed to protect the Force and defend the nation
amid changing public health conditions.” [Doc. 133-2 at 8]. The Air Force hedges that it currently has
no plans to implement another “broad” vaccination requirement and that any vaccination requirement
or consideration would likely be “rare” and maybe “narrower.” Air Force Op. Br. at 17-18; Docs. 133-
2 & 133-4. The Air Force falls well short of carrying its “formidable burden” of showing the challenged
practice “cannot reasonably be expected” to recur, whether “immediately or later at some more propitious
moment.” Fikre, 601 U.S. at 242-43 (emphasis added); see also City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 289 (1982) (where challenged policy is rescinded voluntarily, “remote” possibility of
recurrence does not moot claim for declaratory relief).
There is plenty of other evidence that the challenged practice can reasonably be expected to
recur. For example, the Air Force continues to require seasonal influenza vaccines “to maintain
individual medical readiness and reduce risk to the mission” [Doc. 133-2 at 4], and the Centers for
Disease Control and Prevention (CDC), upon whose guidance the Air Force heavily relies [Doc. 133-
2 at 5]; [Doc. 133-4 at 2], still generally considers COVID-19 to be more severe and more contagious
and to require a longer recovery period than the flu.5 If the Air Force imposes restrictions as to the less-

5 See https://www.cdc.gov/flu/symptoms/flu-vs-covid19.htm (last visited August 16, 2024).
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serious flu virus, why wouldn’t it consider reinstituting restrictions as to the more-serious COVID-19
virus? For this additional reason, the challenged practice can reasonably be expected to recur, and the
Air Force fails to carry its formidable burden of showing otherwise.
The Air Force also mistakenly claims it’s entitled to “considerabl[e]” deference as a government
defendant, citing older Eleventh Circuit caselaw. Air Force Op. Br. at 17. The government is entitled
to no deference at all. As discussed in Plaintiffs’ opening brief (Pls. Op. Br. at 6, 13), the Supreme
Court recently and unanimously held 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; see also Oral Argument Transcript, FBI v. Fikre, No. 22-
1178 (Jan. 8, 2024),6 at page 27:1-9 (Justice Kavanaugh, in response to government’s argument that it
is entitled to a “presumption of regularity,” stating: “That’s not really the standard. The standard is
whether it’s reasonably likely to recur”; the government responded: “Right”); see also id. at page 38:17-
19 (Justice Kagan explaining that “we are extremely committed to” “our voluntary cessation rule,” in
response to government’s argument that it’s “just speculating” to suggest the harm could recur). Prior
to Fikre some courts had held government defendants are entitled to deference in the voluntary
cessation analysis, but that is not the law. Fikre, 601 U.S. at 241-43. Even if, contrary to law, the
government were somehow entitled to some deference, the Air Force does not and cannot carry its
formidable burden.
C.
“Capable of repetition but evading review” also prevents mootness.
For the same or very similar reasons that the doctrine of voluntary cessation saves the case
from mootness, the doctrine of “capable of repetition but evading review” also does. As discussed,
there is a reasonable expectation that Plaintiffs will be subject to the same action again.

6 https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-1178_7lhn.pdf.
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The Air Force claims that the challenged activity is not “short” enough to evade review but at
the same time continues to assert that the need to impose COVID-19-related restrictions is ever
“evolving” and that it needs to “maintain its flexibility to adjust policies… amid changing public health
conditions.” [Doc. 133-2 at 3, 6, 8]; [Doc. 133-4 at 7]. As evidenced in this and other vaccine mandate
cases, the military is demonstrably willing and able to withdraw its policies before aggrieved service
members can obtain full and proper relief. The challenged conduct is capable of repetition but evades
review.
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Dated: August 16, 2024

Respectfully submitted,

/s/ Adam S. Hochschild

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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