Opposition Brief — Frank Kendall, Secretary of the Air Force, et al., Petitioners v. Hunter Doster, et al.
Supreme Court briefOct 18, 2023
Ask Donna
What actually matters in this document.
Text
No. 23-154
In the Supreme Court of the United States
__________________
FRANK KENDALL, SECRETARY OF THE
AIR FORCE, ET AL.,
Petitioners,
v.
HUNTER DOSTER, ET AL.,
__________________
Respondents.
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Sixth Circuit
__________________
BRIEF IN OPPOSITION
__________________
CHRISTOPHER WIEST
CHRIS WIEST,
ATTY AT LAW, PLLC
25 Town Center Blvd.
Suite 104
Crestview Hills, KY 41017
(513) 257-1895
chris@cwiestlaw.com
THOMAS BRUNS
Counsel of Record
BRUNS, CONNELL, VOLLMAR,
ARMSTRONG
4555 Lake Forrest Dr.
Suite 330
Cincinnati, OH 45241
(513) 312-9890
tbruns@bcvalaw.com
AARON SIRI
ELIZABETH A. BREHM
WENDY COX
DANA STONE
SIRI & GLIMSTAD LLP
745 Fifth Avenue
Suite 500
New York, NY 10151
(212) 532-1091
aaron@sirillp.com
Counsel for Respondents
October 18, 2023
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
INTRODUCTION ........................................................2
STATEMENT OF THE CASE ....................................2
A.
BACKGROUND AND PROCEEDINGS
BELOW .............................................................2
ARGUMENT ..............................................................14
I.
ANY DOUBTS ABOUT MOOTNESS
SHOULD BE RESOLVED IN FAVOR OF
DENYING THE PETITION ...........................16
II.
THE COURT WAS UNLIKELY TO GRANT
REVIEW OR REVERSE .................................19
III.
THE EQUITIES STRONGLY FAVOR
DENYING MUNSINGWEAR VACATUR .....24
A.
IF THE APPEAL IS MOOT,
PETITIONERS
VOLUNTARILY
MOOTED THEIR OWN APPEAL .......24
B.
PETITIONERS HAD NUMEROUS
ROUTES
AVAILABLE
FOR
MERITS REVIEW BUT CHOSE
NOT TO PURSUE ANY OF THEM ....28
C.
PETITIONERS CHOSE TO WAIT
AND SEE WHETHER THEY
WOULD PREVAIL AT THE SIXTH
CIRCUIT ..............................................32
ii
D.
1.
Petitioners Litigated Vigorously
Below and Chose to Not Enforce
Past Non-Compliance Only for
Those Who Sought Exemptions
after Court Losses .......................32
2.
No
Legal
Requirements
Prompted Withdrawal of Past
Enforcement of the Mandate.......35
THE SIXTH CIRCUIT’S DECISION
IS VALUABLE AND PRESENTS
NO RES JUDICATA CONCERNS ......35
CONCLUSION ..........................................................39
iii
TABLE OF AUTHORITIES
CASES
AT&T Inc. v. FCC,
139 S. Ct. 454 (2018) ............................................. 26
Alvarez v. Smith,
558 U.S. 87 (2009) ................................................. 28
Arizona v. Mecinas,
143 S. Ct. 525 (2022) ....................................... 26, 38
Berninger v. FCC,
139 S. Ct. 453 (2018) ............................................. 26
CFPB v. Community Fin. Servs. Ass’n of Am.,
No. 22- 448 ............................................................. 29
Chafin v. Chafin,
568 U.S. 165 (2013) ......................................... 16, 17
Chapman v. Doe by Rothert,
143 S. Ct. 857 (2023) ................................. 25, 26, 34
Colonel Fin. Mgmt. Officer v. Austin,
622 F. Supp. 3d 1187 (M.D. Fla. 2022) ................. 33
Davila v. Gladden,
777 F.3d 1198 (11th Cir. 2015) ............................. 22
Democratic Exec. Comm. of Fla. v. Nat’l Republican
Senatorial Comm.,
950 F.3d 790 (11th Cir. 2020) ............................... 38
FTC v. Food Town Stores, Inc.,
547 F.2d 247 (4th Cir. 1977) ................................. 38
Firefighters Local Union No. 1784 v. Stotts,
467 U.S. 561 (1984) ............................................... 17
iv
Fleming v. Gutierrez,
785 F.3d 442 (10th Cir. 2015) ............................... 38
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167 (2000) ........................... 16
Gilligan v. Morgan,
413 U.S. 1 (1973) ................................................... 20
Goldman v. Weinberger,
475 U.S. 503 (1986) ............................................... 20
Holt v. Hobbs,
574 U.S. 352 (2014) ............................................... 21
In re Tax Refund Litig.,
915 F.2d 58 (2d Cir. 1990)..................................... 37
Karcher v. May,
484 U.S. 72 (1987) ................................................. 31
Knox v. SEIU, Local 1000,
567 U.S. 298 (2012) ............................................... 17
Lewis v. Cont’l Bank Corp.,
494 U.S. 472 (1990) ............................................... 36
Mahoney v. Babbitt,
113 F.3d 219 (D.C. Cir. 1997) ............. 24, 30, 31, 36
Marine Corps in Colonel Fin. Mgmt. Officer v.
Austin, 622 F. Supp. 3d 1187 (M.D. Fla. 2022) ....34
Mayorkas v. Innovation Law Lab,
141 S.Ct. 2842 (2021) .......................... 18, 27, 36, 38
McLane v. Mercedes-Benz of N. Am., Inc.,
3 F.3d 522 (1st Cir. 1993)...................................... 38
v
N.Y. State Rifle & Pistol Ass’n, Inc. v. City of N.Y.,
140 S. Ct. 1525 (2020) ........................................... 36
Navy Seal 1 v. Austin,
2022 U.S. Dist. LEXIS 31640 (M.D. Fla. Feb. 18,
2022) ...................................................................... 22
Orion Sales, Inc. v. Emerson Radio Corp.,
148 F.3d 840 (7th Cir. 1998) ................................. 38
Orloff v. Willoughby,
345 U.S. 83 (1953) ................................................. 20
Parisi v. Davidson,
405 U.S. 34 (1972) ................................................. 21
Ramsek v. Beshear,
989 F.3d 494 (6th Cir. 2021) ................................. 38
Seals v. Austin,
594 F. Supp. 3d 767 (N.D. Tex. 2022)................... 33
Sibron v. New York,
392 U.S. 40 (1968) ................................................. 17
Singh v. McHugh,
109 F. Supp.3d 72 (D.D.C. 2016) .......................... 22
Tandon v. Newsome,
141 S. Ct. 1294 (2021) ........................................... 22
Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012 (2017) ........................................... 17
United States v. Concentrated Phosphate Export
Assn., 393 U.S. 199, 89 S. Ct. 361,
21 L. Ed. 2d 344 (1968) ......................................... 16
vi
United States v. Microsoft Corp.,
138 S. Ct. 1186 (2018) ........................................... 28
United States v. Munsingwear, Inc.,
340 U.S. 36 (1950)
......................... 2, 12, 14-16, 19, 24-27, 29, 31, 33-39
United States v. Rahimi,
No. 22-915 .............................................................. 29
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
511 U.S. 1002 (1994) ............................................. 39
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18 (1994)
............................ 13-15, 19, 24-26, 29, 31, 32, 34, 35
U.S. Navy Seals 1-26 v. Biden,
72 F.4th 666 (5th Cir. 2023)................ 18, 22, 33, 37
University of Texas v. Camenisch,
451 U.S. 390 (1981) ............................................... 38
West Virginia v. EPA,
142 S. Ct. 2587 (2022) ........................................... 17
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................... 21
Yellen v. U.S. House of Representatives,
142 S. Ct. 332 (2021) ............................................. 27
STATUTES
10 U.S.C. § 1092 .......................................................... 9
28 U.S.C. § 1254(1) ...................................................... 1
28 U.S.C. § 2101(f) ..................................................... 30
vii
42 U.S.C. § 2000bb-1(c) ............................................... 4
2023 NDAA, 117 P.L. 263, § 525 ............................... 11
RULES
Fed. R. Civ. P. 23(b)(2) ................................................ 4
Sup. Ct. R. 23 ............................................................. 30
OTHER AUTHORITIES
13C Charles Alan Wright et al., Federal Practice
and Procedure (3d ed. 2008) .................................13
Austin v. U.S. Navy Seals 1–26, No. 21A477 ...........30
Biden v. Missouri, No. 22A240..................................30
Josh Boak et al., CDC Issues New Eviction Ban for
Most of US Through Oct. 3, Associated Press
(Aug. 4, 2021), https://tinyurl.com/yc53kwxp.10..18
Br. for Fed. Resp’t, Comcast Corp. v. Int’l Trade
Comm’n, No. 19-1173 (May 26, 2020)..............37
Br. for Resp’ts in Opp., Electronic Privacy Info.
Ctr. v. Presidential Advisory Comm’n on
Election Integrity, No. 18-267 (Nov. 30, 2018)
.................................................................... 31, 35, 37
Department of Air Force Instruction 48-110,
https://static.e-publishing.af.mil/production
/1/af_sg/publication/afi48-110/afi48-110.pdf ..........5
Department of Air Force Instruction 52-201,
Religious Freedom in the Department of the Air
Force, June 23, 2021................................................3
Dep’t of Education v. Brown, No. 22A489.................30
viii
Garland v. Vanderstok, No. 23A82 ...........................30
https://armedservices.house.gov/hearings/covid19s-impact-dod-and-its-servicemembers ..............12
https://covid.cdc.gov/covid-datatracker/#nationwide-blood-donorseroprevalence .........................................................6
https://media.defense.gov/2023/Jan/10/200314311
8/-1/-1/1/SECRETARY-OF-DEFENSE-MEMOON-RESCISSION-OF-CORONAVIRUSDISEASE-2019-VACCINATIONREQUIREMENTS-FOR-MEMBERS-OF-THEARMED-FORCES.PDF .........................................12
https://www.af.mil/News/Article-Display/Article
/2959594/daf-covid-19-statistics-march-2022/........5
https://www.airforcetimes.com/news/your-airforce/2023/09/14/entire-air-force-to-missrecruiting-goal-the-first-failure-since1999/#:~:text=NATIONAL%20HARBOR%2C%
20Md.,the%20next%20generation%20of%20tro
ops ..........................................................................23
https://www.nbcnews.com/news/military/everybranch-us-military-struggling-meet-2022recruiting-goals-officia-rcna35078 ........................23
https://www.washingtontimes.com/news/2023/feb/
28/pentagon-has-its-own-long-covid-problemover-dropp/ .............................................................12
Pets. Suggestion of Mootness, Mayorkas,
No. 19-1212 (June 1, 2021) ...................................27
ix
Religious Freedom Restoration Act of 1993,
H.R. Rep. No. 103-88, 103rd Cong. (1993) ...........22
United States v. Texas, No. 22A17 ............................30
United States v. Texas, No. 21A85 ............................30
1
BRIEF FOR RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The Sixth Circuit’s opinion and decision
denying en banc review and vacatur (Pet.App.179a183a) is reported at 65 F.4th 792 (6th Cir. 2023). The
Sixth Circuit’s opinion (Pet.App.1a–79a) is reported at
54 F.4th 398 (6th Cir. 2022). The Sixth Circuit’s
earlier order declining to grant Petitioners’ request for
a stay pending appeal (Pet.App.80a–95a) is reported
at 48 F.4th 608 (6th Cir. 2022). The Southern District
of Ohio’s opinion granting a class-wide preliminary
injunction (Pet.App.106a–110a) is not reported. The
Southern District of Ohio’s opinion granting class
certification and a class-wide temporary restraining
order is reported at 615 F. Supp. 3d 741 (S.D. Ohio
2022). The Southern District of Ohio’s opinion
granting in part and denying in part plaintiff’s motion
for preliminary injunction (Pet.App.135a-178a) is
published at 596 F. Supp. 3d 995 (S.D. Ohio 2022).
JURISDICTION
The decision denying vacatur and en banc
review was entered on April 17, 2023, and on July 7,
2023, Justice Kavanaugh extended the time within
which to file a petition for a writ of certiorari to August
16, 2023. Petitioners filed the Petition on August 16,
2023. They invoke this Court’s jurisdiction under 28
U.S.C. § 1254(1).
2
INTRODUCTION
The Petition asks the Court, under United
States v. Munsingwear, Inc., 340 U.S. 36 (1950), to
grant vacatur of a decision Petitioners admit they
voluntarily mooted, but only after litigating to the hilt,
losing, and then forgoing multiple opportunities to
seek merits review by this Court. Vacatur under
Munsingwear is always an extraordinary request, but
in the circumstances here it is untenable as it would
be nothing short of a capstone to Petitioners’ strategy
of “heads we win, tails you get vacated.” That is
especially the case here because mootness of the
appeal was solely caused by the voluntary actions of
Petitioners themselves, who went beyond the
requirements of the 2022 NDAA to cease enforcement
activities for past violators of the challenged mandate,
but only if an airman requested an accommodation.
The Court should deny the Petition.
STATEMENT OF THE CASE
A.
BACKGROUND
BELOW.
AND
PROCEEDINGS
On August 21, 2021, the Department of the Air
Force (“DAF”) imposed a COVID-19 vaccination
mandate (“Mandate”) via a directive of the Secretary
of the Air Force (“SECAF”) and Secretary of Defense
(“SECDEF”). 1 [Doc. 11-1, PageID#327; Doc. 11-2,
PageID#328-329]. DAF used its regulatory process to
handle religious accommodation requests (“RAR”) to
1 Citations are to the docket entry in the District Court and the
PageID for the document within that Court.
3
the Mandate, and that process consisted of the
following:
1.
Members
requested
accommodation
by
documenting their sincerely held religious belief and
the substantial burden the Mandate placed on that
belief.
2.
Members were then subjected to a thorough
interview by a DAF Chaplain who made a
determination as to (i) the requestor’s sincerity;
(ii) alternate
means
explored
for
religious
accommodation; (iii) the substantial burden infringing
on religious free exercise; and (iv) a recommendation
to the decision authority. 2
3.
Members were then interviewed by their
commander who made a recommendation as to
whether the RAR could be accommodated.
4.
A General Officer (in some instances this was a
Colonel), usually a Major Component Commander,
then made the initial decision to grant or deny the
RAR. 3
2 Department of Air Force Instruction 52-201, Religious Freedom
in the Department of the Air Force, June 23, 2021, Attachment 5.
3 Documents produced in discovery, after the entry of injunctive
relief, revealed an even more insidious development: DAF
withheld approval authority for RAR’s from these General
Officers (unless they were eligible for an administrative
exception), but not denial authority. The Surgeon General was
solely authorized to overturn denials for appeals (but only did so
for near retirements).
4
5.
When the RAR was denied, members could
appeal that determination to the Surgeon General of
the Air Force, who was the final appeal authority. Id.
Each of the eighteen named Plaintiffs
underwent this process in their pursuit of a temporary
religious exemption to the Mandate. Id. All timely
submitted their RAR, and all had a DAF Chaplain
confirm the sincerity of their beliefs and the
substantial burdening of those beliefs by the Mandate.
[Doc. 1, PageID#1-22; Doc. 11-1 through 11-21,
PageID#324-573; Doc. 30-3 through 20, PageID#20912149]. No Plaintiffs received approvals. [Doc. 11-1
through
11-21,
PageID#324-573;
Doc.
19-1,
PageID#943-947;
Doc.
38-1
through
38-6,
PageID#2631-2665; Doc. 60-1, PageID#4281-4359].
No Plaintiffs were eligible for, or received, an
administrative or medical exemption from the
Mandate. Id.
After denial of their final appeals, every
member was subjected to an order from their
commander to vaccinate or face severe consequences
including the possibility of prison. [Doc. 19-1,
PageID#943-947].
Plaintiffs, most of whom were stationed at
Wright Patterson Air Force Base in Dayton, Ohio, filed
suit in the United States District Court for the
Southern District of Ohio on February 15, 2022. [Doc.
1, PageID#1-22]. Their Complaint raised two claims:
one under RFRA, 42 U.S.C. 2000bb-1(c), and an
analogous Free Exercise Claim under the First
Amendment. Id. It sought declaratory and injunctive
relief, and class certification under FRCP 23(b)(2). Id.
5
The handling and denial of Plaintiffs’ RARs
were not unique. Based on DAF’s own statistics, as of
March 28, 2022, DAF had granted 1,102 medical
exemptions and 1,407 administrative exemptions to
the Mandate, yet had only granted 25 out of 6,168 total
religious accommodation requests (99.6% denial
rate). 4 Id. Petitioners falsely claim that the RARs at
issue
are
permanent,
while
medical
and
administrative exemptions are not. Plaintiffs made
clear from the start that they sought temporary
exemptions to permit the development of a morally
acceptable vaccine. And Air Force Instruction 48-110
only allows temporary accommodations for religious
and administrative exemptions. See https://static.epublishing.af.mil/production/1/af_sg/publication/afi48
-110/afi48-110.pdf (at ¶ 2-6 b.(3)(a)1.) (“For the Air
Force, permanent exemptions for religious reasons are
not granted; the MAJCOM commander is the
designated approval and revocation authority for
temporary immunization exemptions.”).
Of the few RARs granted, not one was granted
without that member also having been eligible for an
administrative exemption (i.e., being at the end of
their term of service). [Doc. 30-2, PageID#2084-2090;
Doc. 74-2, PageID#4527].
The evidence demonstrated that DAF adopted a
de facto systemic policy to deny RARs other than for
members at the end of their term of service, while
https://www.af.mil/News/Article-Display/Article/2959594/dafcovid-19-statistics-march-2022/.
4
6
granting thousands of medical and administrative
exemptions. [Doc. 1, PageID#13-14, ¶¶ 51-52, 54].
One Government witness testified that the
systemic denial of RARs was due to a stated goal of
accommodating even more medical exemptions. [Doc.
25-17 at ¶ 7, PageID#1430-1450]. Consequently, DAF
treated medical exemptions as a protected class at the
expense of an actual protected class. Id. Government
witnesses also admitted that natural immunity was
highly effective and there was no compelling need to
vaccinate those with natural immunity (CDC advised
that over 95% of Americans had immunity to COVID19). Id. at ¶ 23. 5
Further evidence established that temporary
medical exemptions were granted for various reasons,
including pregnancy, adverse reactions and allergies,
yet DAF granted almost no RARs, and the few they
did grant would be no different than those granted for
medical or administrative reasons alone. [Doc. 25-12,
PageID#1395-1403]. 6
DAF
allowed
members
with
medical
exemptions to be considered medically fit for duty; yet
those with, and those seeking, religious exemptions
were determined to be unfit for duty. Id. at ¶ 7.
Further, those receiving medical exemptions did not
automatically lose eligibility for deployment with such
https://covid.cdc.gov/covid-data-tracker/#nationwide-blooddonor-seroprevalence.
5
6 Most, but not all, of those seeking religious accommodations
pursued such accommodations because the only available
vaccines in America had illicit ties to abortion, either in
development, manufacture, or confirmation testing.
7
determinations made on a case-by-case basis, yet all
those with religious exemptions were determined to be
non-deployable. Id. at ¶ 14. 7
The case of Major Andrea Corvi [Doc. 53-1,
PageID#3762-3789] brought this unconstitutional
practice into sharp focus. DAF granted Major Corvi a
temporary medical exemption for pregnancy, and
accommodated her while keeping her job duties,
assignments, and work interactions the same,
including not limiting in any manner her interactions
with over 75 members in her squadron. Id. After she
delivered her child, it then denied her request for a
temporary religious exemption, despite confirming the
sincerity of her religious beliefs and the substantial
burden on those beliefs. Id. The only difference was
the reason for the accommodation.
Record evidence confirmed a blanket policy of
granting medical exemptions for pregnant members –
regardless of duty station, job assignment, or any
other
individual
factor
̶
despite
CDC’s
recommendation that pregnant members be
vaccinated. [Doc. 74-1, PageID#4519-4526].
The
evidence
established
a
clear,
unconstitutional pattern in how DAF treated everyone
it documented as having sincerely held religious
beliefs substantially burdened by the Mandate. [Doc.
7 Administrative exemptions were also granted for a variety of
reasons, Id. at ¶¶ 17-18, including to any member who was within
six months of retirement, which could be for up to 5% of the DAF.
Id.
8
46-1, PageID#3121-3124 at ¶¶ 3, 5]. DAF: (i) used the
same general process for handling RARs across
commands in the active-duty, reserve, and guard; (ii)
utilized the same regulations for processing RARs; (iii)
utilized the same criteria for processing RARs; (iv)
used the same form denial letters; and (v) systemically
denied every RAR unless a member also qualified for
an administrative exemption. Id. at ¶ 4. And these
systemic denials occurred regardless of (i) job duties;
(ii) level of person-to-person interaction; (iii) time in
service; (iv) base; (v) future assignments; (vi)
likelihood of deployment; or (vii) any other individual
factor. Id. at ¶¶ 5-9. This unconstitutional pattern was
never refuted by the Government.
A Department of Defense Inspector General
Report confirmed this systemic discrimination. [Doc.
91-1, PageID#5042-5045].
Processing of Lt. Doster’s RAR highlighted the
preordained
outcome
of
DAF’s
systemically
discriminatory practices. Id. Numerous officials
pointed out that as an engineer with little contact with
others, it was easy to grant his RAR because he could
telework. [Doc. 36-3, PageID#2411-2412; Doc. 36-3,
PageID#2417-2419]. But his RAR was denied because
at some unknown point in the future the need to
vaccinate may arise. [Doc. 36-3, PageID#2417-2419].
Higher-level reviews admitted there was no valid
reason to deny the accommodation, with officers
questioning the ability to defend the denial, yet DAF
persisted in the denial. Id. at PageID#2419, 24762479.
9
DAF and Secretary Kendall ordered active
enforcement of the Mandate with various forms of
coercion, including threats of administrative and
disciplinary action, adverse discharges, and even the
threat of court martial. [Doc. 25-8, PageID#1130-1135;
Doc. 25-14, PageID#1941, 1943-1945]. That courtmartial threat included a sentence of a two-year
prison sentence and a punitive discharge. Id. at
PageID#1944-1945; 10 U.S.C. § 1092.
On March 2, 2022, Plaintiffs sought class
certification under FRCP 23(b)(2), consisting of those
who sought religious accommodations and were
determined by the DAF Chaplains to have sincere
beliefs. (Mot. Certify, Doc. 21, PageID#952-959).
On March 25, 2022, the District Court held an
evidentiary hearing. [Tr., Doc. 45, 48, PageID#30643101, 3206-3348]. Three Plaintiffs testified as
representatives of all named Plaintiffs: Lt. Doster,
SRA Dills, and Lt. Colonel Stapanon. [Tr., Doc. 45, 48,
PageID#3066-3100, 3210-3289]. Plaintiffs established
they all had sincerely held religious beliefs that were
burdened by the Mandate, and that the Government
had the ability to accommodate them. Id. In response,
the Government elected not to present a single witness
to refute this testimony or to defend its systemic
discrimination. Id.
The District Court entered its opinion on March
31, 2022, narrowly enjoining the Government from
punishing Plaintiffs, but left DAF substantial
discretion in discriminating against them with respect
to assignments and a host of other operational
10
decisions. (Pet.App.135a-178a), Doster, 596 F. Supp.
3d 995.
Rather than immediately appealing that
decision, the Government took until May 27, 2022,
almost the entire sixty-day appeal period, to appeal.
[Doc. 62, PageID#4362-4364]. In the meantime, DAF
did not cease its discrimination and continued to
pursue the separation of almost ten thousand religious
believers. On May 3, 2022, with other separation
actions threatened or pending, 230 other airmen
moved to intervene. [Doc. 52, PageID#3415-3422].
Just over two months later, on July 14, 2022,
the district court denied that intervention, granted
class certification, denied the Government’s motion to
dismiss, and entered a robust class-wide temporary
restraining order that contained a thorough analysis
on the RFRA claim. (App.111a-134a), Doster, 615
F. Supp. 3d 741.
After affording the Government yet another
opportunity to put on evidence to refute evidence of
systemic discrimination, and the Government
declining to do so, the district court then entered a
class-wide preliminary injunction on July 27, 2022,
reincorporating its prior analysis. (Pet.App.106a–
110a). This time, the Government only waited until
August 15, 2022, to appeal. [Doc. 82, PageID#45664568].
The Government sought an emergency stay
against both preliminary injunctions on August 22,
2022, and the Circuit Court directed Plaintiffs to
respond by August 25, 2022. On September 9, 2022,
the Sixth Circuit denied the Government a stay in a
11
thorough, published opinion. Doster, 48 F.4th 608.
Following that, the Government elected not to seek a
stay from this Court and instead pursued its appeal in
the ordinary course. The parties briefed and engaged
in extended argument on both appeals, with the Sixth
Circuit rendering its published decision on November
29, 2022. 54 F.4th 398.
Rather than immediately seeking review or
stay from this Court, the Government elected to run
the clock, by seeking and receiving a thirty-day
extension to file an en banc petition, which it filed on
December 15, 2022. (6th Cir. Case No. 22-3702 at Doc.
58). In that request, the Government referenced
“ongoing legislative developments” and noted that “[i]f
enacted, the NDAA would significantly affect this case
and the scope of a potential petition for rehearing or
rehearing en banc.” Id.
Meanwhile, on December 23, 2022, Congress
passed, and the President signed, the 2023 NDAA, 117
P.L. 263, section 525 of which provided:
Not later than 30 days after the date of
the enactment of this Act, the Secretary
of Defense shall rescind the mandate
that members of the Armed Forces be
vaccinated against COVID-19 pursuant
to the memorandum dated August 24,
2021,
regarding
“Mandatory
Coronavirus Disease 2019 Vaccination of
Department
of
Defense
Service
Members.”
DoD
The NDAA did not prevent the Government or
from imposing another, almost identical
12
mandate – it merely required rescission of the August
24, 2021 Mandate.
On January 10, 2023, the SECDEF not only
rescinded the Mandate as required by the NDAA, but
also voluntarily directed the discontinuation and
rescission of certain adverse actions against certain
vaccination objectors (those who had sought an
accommodation). 8
On February 13, 2023, the Government moved
for en banc review, not as to the merits, but arguing
for a mootness determination, not only of the appeal
but of the entire case, and requested Munsingwear
vacatur, as they do here. (6th Cir. Case No. 22-3702 at
Doc. 60).
Demonstrating that Petitioners’ actions with
regard to those who requested RARs were voluntary,
and not Congressionally mandated by the NDAA, on
February 28, 2023, top Pentagon officials
acknowledged to Congress as to those who did not
request RARs “that the Defense Department is still
reviewing for potential ‘disciplinary procedures’
numerous cases of active-duty troops who refused the
shot while the Mandate was in force.” 9 The
https://media.defense.gov/2023/Jan/10/2003143118/-1/1/1/SECRETARY-OF-DEFENSE-MEMO-ON-RESCISSION-OFCORONAVIRUS-DISEASE-2019-VACCINATIONREQUIREMENTS-FOR-MEMBERS-OF-THE-ARMEDFORCES.PDF.
8
https://www.washingtontimes.com/news/2023/feb/28/pentagonhas-its-own-long-covid-problem-over-dropp/;
Testimony
available at: https://armedservices.house.gov/hearings/covid-19simpact-dod-and-its-servicemembers.
9
13
Undersecretary of Defense for Personnel and
Readiness, Gilbert Cisneros, admitted, “[t]hey’re
reviewing the cases because … they [disobeyed] a
lawful order.” Id. This difference in treatment between
those who sought exemptions and those who did not
clearly evidences the voluntary nature of DAF’s
treatment of Plaintiffs and class members to try and
moot the case.
On April 23, 2023, the Sixth Circuit issued its
opinion and decision denying en banc review and
vacatur. (Pet.App.179a-183a), Doster, 65 F.4th 792.
The panel observed that, in light of factual disputes
over mootness of the case, “the district court should
review this mootness question in the first instance.”
Id. at 793; see also 13C Charles Alan Wright et al.,
Federal Practice and Procedure § 3533.10.3, at 645 &
n.31 (3d ed. 2008) (noting “it is common to remand for
consideration of mootness by the lower court” where
“the appellate court is unsure of the facts”).
As to vacatur, the panel stated there was no
“basis for the ‘extraordinary remedy of vacatur’” Id.
(citing U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship,
513 U.S. 18, 26 (1994)). The panel explained that the
Government’s voluntary actions in not pursuing past
violators who had submitted exemption requests
while intending to pursue other violators of the
Mandate gave rise to potential mootness: “That a
party chooses to comply with our decision is hardly a
reason to vacate it.” Id. Moreover, “the Air Force has
not even tried to explain why it is entitled to vacatur
when the putative mootness here arose from the
government’s own actions.” Id. (citing Bancorp, 513
U.S. at 25). “All those actions, of course, occurred well
14
after we issued our opinions here.” Id. “Meanwhile,
‘[j]udicial precedents are presumptively correct and
valuable to the legal community as a whole.’” Id.
(citing Bancorp, at 26). “In this case, our opinions will
stand as a caution against violating the Free Exercise
rights of men and women in uniform—which, by all
appearances, is what the Air Force did here.” Id.
The district court then accepted briefing and
evidence on mootness. Plaintiffs adduced testimony of
ongoing harm from the Mandate that requires
additional relief from the district court and sought
limited discovery directed at the mootness issue. [Doc.
112, PageID#5821-5881]. That ongoing harm included
loss of retirement credit and pay for thousands of
reservists, loss of flying gate months (i.e. credit) for
impacted pilots, and ongoing tracking by DAF of every
vaccine objector and class member in a military
database, accessible to commanders, and resulting in
future and ongoing discrimination in assignments,
promotion boards, and other adverse career harms. Id.
While the Government has no intention to correct any
of that unremedied harm, and with fact issues
unresolved by the district court, it instead requests
Munsingwear vacatur from this Court.
ARGUMENT
The Court should deny the Petition. Granting
Munsingwear relief in these circumstances would be
unprecedented and inequitable.
The appeal is not moot. Regardless, doubts
about mootness should result in the denial of the
petition, given the extraordinarily high burden
required for Munsingwear relief. See Part I, infra.
15
There also is little chance this Court would have
granted review of the Sixth Circuit’s opinion given the
lack of meaningful percolation among the courts of
appeals, the fact this preliminary injunction posture is
not an appropriate vehicle for review, and Petitioners’
self-acknowledgment that COVID-19 is waning. See
Part II, infra.
In any event, Petitioners still do not remotely
qualify for the extraordinary relief of Munsingwear
vacatur.
First, Petitioners themselves voluntarily
mooted this appeal after they lost below, and that
precludes them from receiving Munsingwear vacatur
under this Court’s decision in U.S. Bancorp Mortgage
Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994).
See Part III.A, infra.
Second, Petitioners had time to seek merits
review from this Court of the underlying issues but
chose not to do so — a choice that the Government has
previously said renders a party undeserving of
Munsingwear relief. See Part III.B, infra. The
underlying merits are therefore “not unreviewable,
but simply unreviewed by [Petitioners’] own choice.”
Bancorp, 513 U.S. at 25.
Third, Petitioners appear to have engaged in
precisely the kind of “heads we win, tails you get
vacated” stratagem that this Court has held renders a
party undeserving of equitable relief. See Part III.C,
infra.
Fourth, there is value in keeping the Sixth
Circuit’s decision on the books. See Part III.D, infra. It
16
was issued after extensive deliberation and extended
oral argument and serves as a critical warning against
government overreach and religious discrimination.
The Court should decline Petitioners’ request to send
this entire episode down the memory hole.
For all these reasons and those below, the Court
should deny the Petition.
I.
ANY
DOUBTS
ABOUT
MOOTNESS
SHOULD BE RESOLVED IN FAVOR OF
DENYING THE PETITION.
Petitioners argue this appeal is moot. Pet.13–
20. They are wrong, but the Court should deny the
Petition even if there are doubts about whether this
appeal is actually moot, given the high threshold for
Munsingwear relief.
There remain ongoing negative effects covered
by the injunction, namely maintenance of a database
of those who did not comply, used in assignment and
promotion purposes, as well as to assess potential
future military justice actions. [Resp. Mot. Dismiss
Mootness with Declarations, Doc. 112, PageID#58215881].
The “heavy burden of persua[ding]” the court
that the matter is moot lies with the party asserting
mootness, here, the Government. Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
189 (2000), quoting United States v. Concentrated
Phosphate Export Assn., 393 U.S. 199, 203 (1968)).
“[A] case ‘becomes moot only when it is impossible for
a court to grant any effectual relief whatever to the
prevailing party.’” Chafin v. Chafin, 568 U. S. 165, 172
17
(2013). “As long as the parties have a concrete interest,
however small, in the outcome of the litigation, the
case is not moot.” Id. If there is any additional relief
that can be awarded, however, small, a case is not
moot. Knox v. SEIU, Local 1000, 567 U.S. 298, 307-08
(2012); Chafin, 568 U. S. 165, 172.
Under the “collateral consequences” exception
to mootness, when the plaintiff's primary injury has
ceased, the case is not moot if the challenged conduct
continues to cause other harm the court is capable of
remedying. Sibron v. New York, 392 U.S. 40, 53-59
(1968). A continuing collateral consequence is one that
provides the plaintiff with a “concrete interest” in the
case and for which “effective relief” is available.
Firefighters Local Union No. 1784 v. Stotts, 467 U.S.
561, 571 (1984). Here, this ongoing, unremedied harm
(the database) is a collateral consequence that
demonstrates the lack of mootness.
The appeal also falls within the voluntary
cessation doctrine, under which Petitioners must
demonstrate that “it is ‘absolutely clear that the
allegedly wrongful behavior could not reasonably be
expected to recur.’” West Virginia v. EPA, 142 S. Ct.
2587, 2607 (2022); Trinity Lutheran Church of
Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1
(2017). Here, not only does the Government not
promise to “never do it again,” but in light of the
Secretary’s statement, no admission of wrongdoing,
and Petitioners’ request, there is significant reason to
believe it will do it again given the opportunity.
Further, Petitioners cannot meet their burden
because they voluntarily ceased adverse actions and
enforcement against only persons who sought
18
accommodation to the Mandate – not for those who did
not. That shows their actions are voluntary and driven
by litigation concerns, and not the passage of the
NDAA, given the testimony of DOD officials before
Congress in February. See Part III.C, infra.
Petitioners’ suggestion that the Mandate in
question is no more, and that it will not be reimposed,
is in serious tension with their demand for
Munsingwear vacatur, the very purpose of which (as
the Government itself has told this Court) is to clear
the path for future re-litigation without res judicata
concerns. See Part III.D, infra.
Moreover, the Government’s “record on these
issues does not inspire trust. We should be suspicious
of officials who try to avoid judicial review by
voluntarily mooting a case — especially in the absence
of an admission of illegality or credible assurance of
future compliance.” U.S. Navy Seals 1-26 v. Biden, 72
F.4th 666, 677–78 (5th Cir. 2023) (Ho, J., dissenting)
(cleaned up). Petitioners have never admitted to their
wrongful behavior. The last time the Government
represented to this Court that it was ending a
pandemic-era policy in clear excess of its statutory
authority, it reimposed it anyway. See, e.g., Josh Boak
et al., CDC Issues New Eviction Ban for Most of US
Through Oct. 3, Associated Press (Aug. 4, 2021), https
://tinyurl.com/yc53kwxp.10.
Further, Petitioners’ invocation of mootness in
Mayorkas v. Innovation Law Lab, 141 S.Ct. 2842
(2021), is inapposite; there, certiorari had been
granted by the Court and a new administration took
19
action for the Government reversing the challenged
policy, all of which are not the facts present here.
Mootness is a precondition for Munsingwear
and, given the extraordinarily high burden to obtain
such relief, see Bancorp, 513 U.S. at 26, the Court
should grant it only when it is clearly the proper
outcome. Because there are at least doubts about
mootness here, the Court should deny the Petition.
II.
THE COURT WAS UNLIKELY TO GRANT
REVIEW OR REVERSE.
Petitioners claim that, absent mootness, this
Court likely would have granted their petition for a
writ of certiorari challenging the underlying merits of
the Sixth Circuit’s decision and also would have
reversed. (Pet. 20–28). Petitioners are wrong on both
counts, which provides another basis for denying
Munsingwear vacatur.
First, under Petitioners’ view that COVID-19 is
essentially over, and that no future vaccine
requirement will be imposed, see Pet. 20, this appeal
would have presented an especially weak candidate
for certiorari. They do not explain why this Court
would venture into resolving questions about RFRA,
exhaustion, and other legal questions raised when (in
Petitioners’ telling) those matters are unlikely to arise
again down the road.
Even if the foregoing issues within the decision
below were framed more broadly, this Court would
still likely have awaited further percolation among the
lower courts – or at least final adjudication in this case
– before granting review. Indeed, the Government has
20
prevented much of the very percolation necessary for
such review by obtaining mootness determinations in
several cases. Percolation is especially important here
because it can change minds.
Second, the Sixth Circuit’s decision, thorough
analyses of RFRA and jurisdictional issues are correct.
Pet. 14a-48a. That makes it unlikely the Court would
have granted review, and more unlikely it would have
reversed.
Third, this appeal would have come to this
Court in the procedural posture of a preliminary
injunction decision, with follow-on litigation to follow
(and, as it turns out, follow-on litigation that is still
pending on the merits). The ongoing harm from the
maintenance of the database, as well as uncorrected
relief for reserves, pilot gate months, and the like,
reflect that this Court will yet have the opportunity to
fully review this matter, but on a full record. Thus, the
Government’s contentions about not having the
chance to litigate these claims are false.
Petitioners claim the decision below conflicts
with plainly distinguishable decisions of this Court.
Take Goldman v. Weinberger, 475 U.S. 503 (1986),
which reviewed a neutral and generally applicable
dress code requirement, or Orloff v. Willoughby, 345
U.S. 83, 94 (1953), which did not address any
fundamental constitutional rights or statutory rights,
or Gilligan v. Morgan, 413 U.S. 1 (1973), a case
challenging a future hypothetical use of the national
guard being non-justiciable. Unlike those cases, here,
there was a Congressionally mandated right and
21
remedy under RFRA, which was not present in any of
the cases the Government cites.
Petitioners next claim they are entitled to such
a high degree of deference as to render their
constitutional violations unreviewable. But the very
cases the Government cites do not stand for that
proposition. Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 26 (2008) (“military interests do not always
trump other considerations”); Parisi v. Davidson, 405
U.S. 34, 54-55 (1972) (rejecting deference arguments
and noting that “[i]f there is a statutory or
constitutional reason why he should not obey the order
of the Army, that agency is overreaching when it
punishes him for his refusal,” that “matters of the
mind and spirit, rooted in the First Amendment, are
not in the keeping of the military,” and “[w]hen the
military steps over those bounds, it leaves the area of
its expertise and forsakes its domain,” and thus “[t]he
matter then becomes one for civilian courts to resolve,
consistent with the statutes and with the
Constitution.”).
In a more analogous situation involving a
prison context and applying a parallel statute that
“mirrors RFRA,” this Court unanimously rejected a
similar demand for “a degree of deference …
tantamount to unquestioning acceptance.” Holt v.
Hobbs, 574 U.S. 352, 357, 364 (2014). If this is the rule
pertaining to prisoners, how much more appropriate
is it to reject the Government’s assertions here of
“unquestioning acceptance” of ongoing violations of
the constitutional rights of service members who
defend such rights with their lives?
22
Case law and legislative history of RFRA
support that Holt provides the proper framework for
resolving RFRA claims against the military. Singh v.
McHugh, 109 F. Supp.3d 72, 89 (D.D.C. 2016). See also
Religious Freedom Restoration Act of 1993, H.R. Rep.
No. 103-88, 103rd Cong. at 8 (1993) (even in the
military context, “[s]eemingly reasonable regulations”
that are based on “speculation,” “exaggerated fears,”
or “thoughtless policies” “cannot stand.”). See, also,
Navy Seal 1 v. Austin, 2022 U.S. Dist. LEXIS 31640
(M.D. Fla. Feb. 18, 2022) (“[military] officials cannot
simply utter the magic words [‘military readiness and
health of the force’] and as a result receive unlimited
deference from those of us charged with resolving the
dispute”, quoting Davila v. Gladden, 777 F.3d 1198,
1206 (11th Cir. 2015)); U.S. Navy Seals 1-26, 27 F.4th
336, 351 (in the military context, RFRA demands more
than simply deferring to military officials’ say-so).
“Where the government permits other activities
to proceed with precautions [as Petitioners did here],
it must show that the religious exercise at issue is
more dangerous than those [permitted secular]
activities even when the same precautions are
applied.” Tandon v. Newsome, 141 S. Ct. 1294, 129697 (2021). “Otherwise, precautions that suffice for
other activities suffice for religious exercise too.” Id.
The Government’s arguments to the contrary are
unavailing.
The Government next argues that the district
court got it wrong in declining to defer to an Air Force
general’s untested declaration, which asserted general
interests in the Mandate, but did not address the
23
Government’s “to the person” compelling interest
requirement under RFRA. The district court did so
only after it had held an evidentiary hearing where the
Government declined to present any witnesses, failing
to rebut the testimony from Plaintiffs which adduced
that the Government systemically engaged in
discrimination. Part of the absurdity with General
Schneider’s declaration was his contention that the
Air Force needed personnel billets, despite data that
the Air Force routinely and substantially failed to
meet recruiting and retention goals. 10 The district
court was well within its discretion to give that
declaration only the weight it deserved, and to apply
the plain language of RFRA to save the military
careers of approximately 10,000 service members at a
time when the military was failing to meet recruiting
and retention goals.
In any event, no meaningful circuit split
developed on this score. And, in the preliminary
injunction context, with litigation to continue (and is
ongoing), the appeal presented in its current posture
is a poor vehicle for certiorari.
10 https://www.airforcetimes.com/news/your-air-
force/2023/09/14/entire-air-force-to-miss-recruiting-goal-thefirst-failure-since-1999/#:~:text=NATIONAL%20HARBO
R%2C%20Md.,the%20next%20generation%20of%20troops;
https://www.nbcnews.com/news/military/every-branch-usmilitary-struggling-meet-2022-recruiting-goals-officiarcna35078.
24
III.
THE EQUITIES STRONGLY FAVOR
DENYING MUNSINGWEAR VACATUR.
Even assuming, arguendo, that the case is moot
and that the Court would have granted review of the
underlying merits issues, the Court should still deny
the Petition because granting Munsingwear relief
here would be unprecedented.
A.
IF
THE
APPEAL
IS
MOOT,
PETITIONERS
VOLUNTARILY
MOOTED THEIR OWN APPEAL.
Despite Petitioners’ claim that Munsingwear
vacatur is “established practice” anytime a case
becomes moot on appeal, (Pet. 28), Bancorp rejected
that and made clear that automatic vacatur is far from
the “ordinary” course. 513 U.S. at 23–24; see Mahoney
v. Babbitt, 113 F.3d 219, 221 (D.C. Cir. 1997) (“[T]he
vacatur question is now controlled … by U.S. Bancorp,
which has displaced Munsingwear as the Supreme
Court’s latest word on vacatur.”). Bancorp held that
from “the beginning we have disposed of moot cases in
the manner ‘most consonant to justice’ … in view of
the nature and character of the conditions which have
caused the case to become moot.” 513 U.S. at 23–24
(citations omitted). Vacatur should be granted only in
“extraordinary” cases. Id. at 26.
Bancorp explained that Munsingwear vacatur
only is appropriate when appellate review is
“prevented through happenstance … where a
controversy … has become moot due to circumstances
unattributable to any of the parties,” or when review
was prevented by “the unilateral action of the party
25
who prevailed in the lower court.” Bancorp, 513 U.S.
at 23 (cleaned up).
By contrast, vacatur is not appropriate when
“the party seeking relief from the judgment below
caused the mootness by voluntary action.” Id. at 24. As
Justice Jackson explained, this Court has “long
recognized that the equities generally do not favor
Munsingwear vacatur when the party requesting such
relief played a role in rendering the case moot.”
Chapman v. Doe by Rothert, 143 S. Ct. 857 (2023)
(Jackson, J., dissenting).
Petitioners repeatedly lost below, and any
suggested mootness was caused by their choice to
rescind ongoing enforcement for past violators of the
Mandate, but only for those who sought
accommodations (meaning the Government was not
required to do so by the NDAA and instead chose to do
so voluntarily with regard to a class of individuals who
were suing it). This fits squarely within Bancorp’s
holding that “the party seeking relief from the
judgment below caused the mootness by voluntary
action,” and therefore Munsingwear is unavailable.
Bancorp, 513 U.S. at 24. Petitioners nowhere claim
that the decision to discontinue such enforcement on a
selective basis was not “voluntary” — that the
SECDEF was coerced or confused when he did so, or
even that he was required by act of Congress to
withdraw past violations of the Mandate.
To deny relief here, it is not necessary to show
that Petitioners were solely responsible for bringing
about the mootness they claim exists (though they
obviously were). In Bancorp itself, the respondent and
26
petitioner were equally responsible for the mootness
because the parties settled the case, but the Court still
refused to grant vacatur. 513 U.S. at 26 (even
“equivalent responsibility for the mootness” is
insufficient to justify vacatur). Or, as Justice Jackson
has explained, Munsingwear is unavailable to a party
that “played a role in rendering the case moot.”
Chapman, 143 S. Ct. at 857 (Jackson, J., dissenting).
Petitioners undoubtedly “played a role” in rendering
moot a case they repeatedly lost below, and that
renders them ineligible for Munsingwear relief.
And that is doubly the case where Petitioners
took deliberate steps to delay this Court’s review at
multiple junctures when they could have sought it (by
seeking a stay of the injunction following the Sixth
Circuit’s published denial of same in September 2022,
or by immediately seeking this Court’s review in
November or December 2022, rather than seeking an
extended delay to permit themselves to take actions to
attempt to moot the case).
The Court should follow its usual course where
the party seeking vacatur has lost below, and then
even arguably brought about mootness, and deny
vacatur. 11
It is unsurprising that Petitioners cite only a
few cases in support of their unprecedented request,
all of which are easily distinguishable. In both
11 See, e.g., Arizona v. Mecinas, 143 S. Ct. 525 (2022); Berninger
v. FCC, 139 S. Ct. 453 (2018); AT&T Inc. v. FCC, 139 S. Ct. 454
(2018).
27
Mayorkas v. Innovation Law Lab, 141 S. Ct. 2842
(2021), and Yellen v. U.S. House of Representatives,
142 S. Ct. 332 (2021), this Court issued summary
orders granting Munsingwear relief after a change in
presidential administrations had resulted in mootness
of the underlying policy. The government argued that
the change in presidencies was precisely what made
those cases unique. Yellen, No. 20-1738 (June 11,
2021) (“[M]ootness here is, at bottom, the result of a
change in Administration following an election.”);
Pets. Suggestion of Mootness, Mayorkas, No. 19-1212
(June 1, 2021). Moreover, the change in
administrations meant that the parties seeking
vacatur arguably were not the same ones who had
issued the original policy, lost at the court of appeals,
or sought this Court’s review in the first instance.
But here, there was no intervening presidential
election and the Petitioners here are the same as those
who (1) issued the challenged policy; (2) lost at the
district court; (3) lost (twice) at the Sixth Circuit;
(3) voluntarily tried to moot the case; (4) chose not to
appeal to this Court despite several opportunities to
do so while the policy was in place; and (5) now ask
this Court to bail them out with vacatur. Petitioners
simply want relief from their own actions, deliberately
taken at every step, over Respondents’ opposition. The
Munsingwear inquiry is an equitable one, and there is
a drastic difference in equities between this case and
the circumstances presented by Yellen and Mayorkas.
Moreover, in Mayorkas, the government sought
certiorari on the merits and obtained a grant before
the case became moot, meaning the government had
not squandered its opportunity for merits review
28
before later seeking vacatur. Here, Petitioners
consciously declined to seek merits review,
deliberately ran the clock, and opted to try to
eliminate the precedential value of the decision below,
as discussed next. 12
B.
PETITIONERS HAD NUMEROUS
ROUTES AVAILABLE FOR MERITS
REVIEW BUT CHOSE NOT TO
PURSUE ANY OF THEM.
Petitioners do not claim they were actually
foreclosed from this Court’s review, and they never
address the fact nothing in the NDAA kept them from
continuing to enforce past non-compliance with the
Mandate while it was in force, as they continue to do
against those service members who failed to comply
without having sought an accommodation. Nothing,
including the injunction, kept Petitioners from
continuing to enforce past non-compliance with the
Mandate while Petitioners sought merits review from
this Court. If anything, that route would have taken
less effort than Petitioners’ current strategy of trying
to moot this case and then seeking vacatur.
12 Petitioners also invoke United States v. Microsoft Corp., 138 S.
Ct. 1186 (2018), and Alvarez v. Smith, 558 U.S. 87, 89 (2009); see
Pet.13-14, 19, 29-30, but those cases are even further afield. Both
involved petitioners that had not slept on their ability to seek
merits review from this Court. Further, in Microsoft, an
intervening act of Congress changed the applicable legal regime.
Here, the NDAA did not foreclose enforcement for past violations
– Petitioners did that voluntarily. See 138 S. Ct. at 1187–88; Part
III.D, infra. And in Alvarez, the petitioner had not voluntarily
mooted the case in any typical sense.
29
Bancorp made clear that Munsingwear vacatur
is available only when the “orderly procedure” of
seeking Supreme Court review “cannot be honored.”
Bancorp, 513 U.S. at 27. In other words, only when the
party seeking vacatur had no other mechanism for
relief from an adverse decision below.
Petitioners chose not to pursue any of the
options they had at their disposal under the “orderly
procedure” for seeking relief from this Court. Even
setting aside that Petitioners could have continued
enforcement for past non-compliance (as they have
done with those who did not seek an accommodation),
Petitioners could have (i) sought a stay from this Court
after the Sixth Circuit denied stay relief in September,
2022; or (ii) filed a petition for a writ of certiorari
promptly after the Sixth Circuit issued its decision in
late November 2022, which was more than seven
weeks before the Secretary of Defense withdrew the
challenged requirement and directed discontinuation
of past non-compliance (but only for those who sought
an exemption).
Petitioners chose not to promptly seek
certiorari on the merits, even though they have done
so in many recent cases. 13 In fact, Petitioners
intentionally dawdled, using a thirty-day extension to
seek en banc review from the Sixth Circuit for the
express and stated purpose of waiting to see what
action Congress would take in December 2022 – i.e.,
13 See, e.g., United States v. Rahimi, No. 22-915 (DOJ filing a
petition for a writ of certiorari just 15 days after Fifth Circuit
decision); CFPB v. Community Fin. Servs. Ass’n of Am., No. 22448 (26 days after Fifth Circuit decision).
30
deliberately running the clock to take actions to
potentially moot the case. After the Sixth Circuit
decision issued, Petitioners also had ample time to
seek emergency relief from this Court. See 28 U.S.C.
§ 2101(f); Sup. Ct. R. 23. They have not been shy about
seeking such relief within days of lower court rulings,
including repeatedly in the context of federal vaccine
mandates. 14 But Petitioners chose not to pursue that
path for merits relief – perhaps because the last thing
Petitioners actually wanted was a merits-based
review by this Court that reached the same result as
the Sixth Circuit. Plainly, Petitioners could have
sought relief, emergency or otherwise, from this Court
at any time after the Sixth Circuit declined to grant
such relief on September 9, 2022, (Pet.App.80a)
putting Petitioners’ delay at more than four months.
“[E]stablished
procedure
provides
for
application to the Supreme Court for a stay of our
emergency order. They could have addressed the
Circuit Justice for such a stay. They chose not to do so.
Thus, ‘this controversy did not become moot due to
circumstances unattributable to any of the parties.
The controversy ended when the losing party declined
to pursue its appeal.’” Mahoney, 113 F.3d at 222
14 See Biden v. Missouri, No. 22A240 (DOJ seeking a stay three
days after Eighth Circuit decision on CMS vaccine mandate);
Austin v. U.S. Navy Seals 1–26, No. 21A477 (seven days after
Fifth Circuit decision on military vaccine mandate); see also, e.g.,
Garland v. Vanderstok, No. 23A82 (three days after Fifth Circuit
decision about “ghost gun” regulation); Dep’t of Education v.
Brown, No. 22A489 (two days after Fifth Circuit decision on loan
forgiveness); United States v. Texas, No. 22A17 (two days after
Fifth Circuit decision on immigration); United States v. Texas,
No. 21A85 (four days after Fifth Circuit decision on abortion).
31
(cleaned up). In such a case, “the Munsingwear
procedure is inapplicable.” Karcher v. May, 484 U.S.
72, 83 (1987).
To be sure, Petitioners were not required to
seek merits relief from this Court, but having chosen
not to, they forfeited any equitable claim to vacatur.
As Bancorp put it, the decision below was “not
unreviewable, but simply unreviewed by [Petitioners’]
own choice.” Bancorp, 513 U.S. at 25. “The case is
therefore one where the United States, having slept on
its rights, now asks us to do what by orderly procedure
it could have done for itself. The case illustrates not
the hardship of res judicata but the need for it in
providing
terminal
points
for
litigation.”
Munsingwear, 340 U.S. at 41 (denying vacatur).
Hypocritically, the Government opposed
Munsingwear vacatur in prior cases on these same
grounds: “Had petitioner acted with greater dispatch,
it might have had an opportunity to seek this Court’s
review of an adverse decision before this case became
moot.” Br. for Resp’ts in Opp. 19, Electronic Privacy
Info. Ctr. v. Dep’t of Commerce, No. 19-777 (Mar. 19,
2020). The Government should be held to its own
standard. Moreover, Petitioners were surely aware of
the consequences of not seeking merits review from
this Court during the lengthy period available to do so.
Because Petitioners “did not avail [themselves]
of the remedy [they] had to preserve [their] rights,”
Munsingwear, 340 U.S. at 40, they have no equitable
claim to the “extraordinary remedy of vacatur,”
Bancorp, 513 U.S. at 26.
32
C.
PETITIONERS CHOSE TO WAIT
AND SEE WHETHER THEY WOULD
PREVAIL AT THE SIXTH CIRCUIT.
Petitioners argue that this appeal is entitled to
unprecedented treatment because Congress enacted
legislation (at least partially in response to the Sixth
Circuit’s decision in this case) that required rescission
of the Mandate (but that did not halt disciplinary and
criminal proceedings for past non-compliance). This is
both legally irrelevant and factually misleading.
It is irrelevant because under Bancorp, the
question is whether Petitioners “caused the mootness
[of their own loss] by voluntary action,” Bancorp, 513
U.S. at 24, which they admittedly did, see Part III.A,
supra. It does not matter why they chose to take that
voluntary action.
And Petitioners’ argument about the reasons
for withdrawing enforcement of the Mandate is
unsupported by the facts, as explained next.
1.
Petitioners
Litigated
Vigorously
Below and Chose to Not Enforce Past
Non-Compliance Only for Those Who
Sought Exemptions after Court
Losses.
Petitioners waited to see whether they would
prevail at the Sixth Circuit and only then decided to
take remedial actions in January 2023. This presented
an enticing “heads we win, tails you get vacated”
proposition for Petitioners. By sidestepping merits
review by this Court, Petitioners would not risk a
Supreme Court decision affirming the judgment
33
below. Petitioners were entitled to wait to see how the
Sixth Circuit ruled, but they cannot now invoke this
Court’s equitable power to relieve them of that
unfavorable decision after the fact.
The Government suffered scathing losses
outlining a discriminatory pattern and practice in
several certified class actions under RFRA in three
military branches: the Navy in U.S. Navy Seals 1-26
v. Biden, 27 F.4th 336 (5th Cir. 2022) and Seals v.
Austin, 594 F. Supp. 3d 767 (N.D. Tex. 2022); the
Marine Corps in Colonel Fin. Mgmt. Officer v. Austin,
622 F. Supp. 3d 1187 (M.D. Fla. 2022); and the Air and
Space Force in this matter (all in accordance with the
Department of Defense’s Inspector General’s findings
confirming a pattern of discrimination). [Doc. 91-1,
PageID#5042-5045].
Yet the Government did not take an about-face
regarding enforcement of the mandate until after
those losses and the Mandate rescission, and even
since, continues enforcement measures against those
who had not sought an accommodation.
After the Sixth Circuit affirmed the injunctions,
Petitioners again had the option to seek relief from
this Court, see Part III.B, supra, which might have
affirmed the decision below or have been denied and
thereby left the Sixth Circuit’s decision as precedent.
But Munsingwear presented what seemed like a winwin alternative: wait for the NDAA to be passed,
withdraw past enforcement (but only for those within
the class), then ask the Sixth Circuit and later this
Court to erase the Sixth Circuit’s decision.
34
Munsingwear provided an opportunity for
Petitioners to be freed from a decision for which they
have reserved a unique level of enmity. 15 But “mere
disagreement with the decision that one seeks to have
vacated cannot suffice to warrant equitable relief
under Munsingwear.” Chapman, 143 S. Ct. at 858
(Jackson, J., dissenting).
This is precisely why Bancorp warned that
freely granting vacatur would encourage litigants “to
roll the dice” by litigating vigorously in the courts
below and then seeking vacatur “if, but only if, an
unfavorable outcome” resulted. Bancorp, 513 U.S. at
28. “Munsingwear vacatur can also incentivize
gamesmanship” where a party, “if unsuccessful on the
merits” below will instead “argue mootness on appeal
to eliminate the adverse decision through vacatur.”
Chapman, 143 S. Ct. at 858 (Jackson, J., dissenting).
That gamesmanship is all the more apparent when, as
here, the party seeking Munsingwear relief played a
direct, voluntary role in bringing about that supposed
mootness and also declined to seek merits review from
this Court.
Petitioners were entitled to wait and see
whether they prevailed in the case below, and were
entitled to withdraw enforcement measures for past
non-compliance of the Mandate.
But having
voluntarily and strategically taken those steps,
Petitioners cannot now invoke this Court’s equity to
relieve them of the natural consequences of their own
15 See Pet.20–29 (devoting four times more space to criticizing the
decision below than to explaining why Munsingwear is
equitable).
35
decisions and the precedential effect of the decision
below.
2.
No Legal Requirements Prompted
Withdrawal of Past Enforcement of
the Mandate.
The NDAA only required rescinding the August
2021 Mandate. We know that because Petitioners
have continued enforcement against those who had
not sought accommodations from it.
The Government has previously argued that
where a “petitioner abandoned its effort to obtain
further relief and fully committed to the strategy of
solely seeking to eliminate the court of appeals’
decision as precedent,” such “tactics counsel against
rewarding petitioner with an equitable windfall”
under Munsingwear. Br. for Resp’ts in Opp. 17–18,
Electronic Privacy Info. Ctr. v. Presidential Advisory
Comm’n on Election Integrity, No. 18-267 (Nov. 30,
2018). The Court denied vacatur in that case. See 139
S. Ct. 791 (2019). The Court should hold the
Government to its own standard and deny relief here
too.
D.
THE SIXTH CIRCUIT’S DECISION
IS VALUABLE AND PRESENTS NO
RES JUDICATA CONCERNS.
Another factor favoring denial of Munsingwear
is the Court’s recognition that judicial precedents “are
not merely the property of private litigants,” but also
belong to the public and “legal community as a whole.”
Bancorp, 513 U.S. at 21, 26–27. The Sixth Circuit’s
decision addresses important issues under RFRA
36
reached after extensive briefing and extended
argument. “So long as the court believed that it was
deciding a live controversy, its opinion was forged and
tested in the same crucible as all opinions.” Mahoney,
113 F.3d at 222 (internal quotation marks omitted).
If nothing else, it is especially important that
the Sixth Circuit’s decision remains on the books as a
warning for the future. “Since March 2020, we may
have experienced the greatest intrusions on civil
liberties in the peacetime history of this country.
Executive officials across the country issued
emergency decrees on a breathtaking scale,” including
the Mandate at issue here. Mayorkas, 143 S. Ct. at
1314 (statement of Gorsuch, J.). The judiciary stood as
the one restraint on the political branches’ relentless
march during that period. See id. at 1316.
Given this recent history, the Sixth Circuit’s
decision should not so readily be sent down the
memory hole, least of all at the request of the parties
whose illegal actions prompted that decision in the
first place.
The Court has recognized vacatur may be of
value for “clear[ing] the path for future relitigation of
the issues between the parties.” Munsingwear, 340
U.S. at 40. This is particularly true where there has
been a change in the legal framework that favors
relitigation free from res judicata concerns. See N.Y.
State Rifle & Pistol Ass’n, Inc. v. City of N.Y., 140 S.
Ct. 1525, 1526 (2020); Lewis v. Cont’l Bank Corp., 494
U.S. 472, 482 (1990).
In fact, the Government has previously gone so
far as to say that clearing a path for relitigation
37
between the parties is “[t]he purpose of the vacatur
remedy.” Br. for Fed. Resp’t 25, Comcast Corp. v. Int’l
Trade Comm’n, No. 19-1173 (May 26, 2020). The
Government also previously told this Court it should
deny Munsingwear relief where the challenged policy
“no longer exists and it is purely speculative whether
it (or anything like it) will ever exist again,” Br. for
Resp’ts in Opp. 17, Electronic Privacy Info. Ctr., No.
18-267 (Nov. 30, 2018), and the Court did deny
vacatur, see 139 S. Ct. 791 (2019).
Petitioners insist the Mandate will not be reissued, and thus these matters will not be
“relitigat[ed] … between the parties,” Munsingwear,
340 U.S. at 40. Yet, as already demonstrated, the
underlying matter is not over, and Petitioners will yet
have their opportunity to present their merits’
arguments, with the benefit of a full record, given the
additional relief that is necessary as the case is not
moot.
Further reinforcing this conclusion is the fact
that the Sixth Circuit’s decision addresses only an
interlocutory preliminary injunction. 16 “In the case of
interlocutory appeals ... ‘the usual practice is just to
dismiss the appeal as moot and not vacate the order
appealed from.’” In re Tax Refund Litig., 915 F.2d 58,
59 (2d Cir. 1990). That represents the standard rule
among the courts of appeal when facing preliminary
injunctions that have allegedly become moot, because
res judicata does not usually apply to such decisions.
See, e.g., id.; U.S. Navy SEALs, 72 F.4th at 675 n.9;
16 Indeed, Petitioners repeatedly argue the mootness only of the
injunction appeal specifically.
38
Ramsek v. Beshear, 989 F.3d 494, 501 (6th Cir. 2021);
Democratic Exec. Comm. of Fla. v. Nat’l Republican
Senatorial Comm., 950 F.3d 790, 795 (11th Cir. 2020);
Fleming v. Gutierrez, 785 F.3d 442, 449 (10th Cir.
2015) (Tymkovich, Gorsuch, Holmes, JJ.); McLane v.
Mercedes-Benz of N. Am., Inc., 3 F.3d 522, 524 n.6 (1st
Cir. 1993).
The primary “consideration for invocation of the
Munsingwear doctrine is the res judicata effect of the
order in question,” but such concerns are minimized in
the context of preliminary rulings, which typically
have little-to-no “res judicata significance.” FTC v.
Food Town Stores, Inc., 547 F.2d 247, 249 (4th Cir.
1977); University of Texas v. Camenisch, 451 U.S. 390
(1981). Thus, “Munsingwear orders vacating the
underlying order should not typically issue with
respect to preliminary injunctions that become moot
on appeal.” Orion Sales, Inc. v. Emerson Radio Corp.,
148 F.3d 840, 843 (7th Cir. 1998). Petitioners cite
Mayorkas, where this Court granted Munsingwear
relief for a preliminary ruling but, again, that case is
easily distinguishable because mootness occurred only
after a switch in administrations where the
government had not squandered its opportunity for
merits review, see Mayorkas, 141 S. Ct. 2842, neither
of which is true here, see Parts III.A–B, supra. The
Court has otherwise denied Munsingwear relief where
the challenged decision was not a final judgment. See,
e.g., Mecinas, 143 S. Ct. 525.
The limited res judicata effect of the Sixth
Circuit’s ruling provides yet another basis for denying
Munsingwear relief.
39
CONCLUSION
The Court should deny the Petition. Granting it
would set a dangerous precedent providing a windfall
to parties who litigated a case to the hilt in the lower
courts and — only upon receiving unfavorable
decisions and declining to seek merits review from this
Court, and then taking steps to moot the case — are
rewarded by vacatur which erases their deliberately
unreviewed loss from the books.
If the Court is considering the unprecedented
step of granting vacatur here, Respondents request
that the Court set the case for merits briefing and
argument. See U.S. Bancorp Mortg. Co. v. Bonner Mall
P’ship, 511 U.S. 1002 (1994) (setting Munsingwear
issue for merits briefing and oral argument).
40
Respectfully submitted,
CHRISTOPHER WIEST
CHRIS WIEST,
ATTY AT LAW, PLLC
25 Town Center Blvd.
Suite 104
Crestview Hills, KY 41017
(513) 257-1895
chris@cwiestlaw.com
THOMAS BRUNS
Counsel of Record
BRUNS, CONNELL,
VOLLMAR, ARMSTRONG
4555 Lake Forrest Dr.
Suite 330
Cincinnati, OH 45241
(513) 312-9890
tbruns@bcvalaw.com
AARON SIRI
ELIZABETH A. BREHM
WENDY COX
DANA STONE
SIRI & GLIMSTAD LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
(212) 532-1091
aaron@sirillp.com
Counsel for Respondents
October 18, 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.