Petition for Writ of Certiorari — Alicia Lowe, et al., Petitioners v. Sara Gagne-Holmes, Acting Commissioner, Maine Department of Health and Human Services, et al.

No. ________

IN THE

Supreme Court of the United States

ALICIA LOWE, JENNIFER BARBALIAS, GARTH

BERENYI, DEBRA CHALMERS, NICOLE GIROUX,

ADAM JONES, NATALIE SALAVARIA,

Petitioners,

v.

SARAH GAGNÉ-HOLMES, in her official capacity as

Acting Commissioner of the Maine Department of

Health and Human Services, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the First

Circuit

PETITION FOR WRIT OF CERTIORARI

Mathew D. Staver

Horatio G. Mihet

Counsel of Record

Daniel J. Schmid

Anita L. Staver

LIBERTY COUNSEL

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

109 Second St., NE

(407) 875-1776

Washington, D.C. 20002

(202) 289-1776

court@LC.org

Counsel for Petitioners

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTIONS PRESENTED

As Justice Gorsuch noted nearly four years ago,

This case presents an important constitutional

question, a serious error, and an irreparable

injury. Where many other States have adopted

religious exemptions, Maine has charted a

different course. There, healthcare workers

who have served on the front line of a pandemic

for the last 18 months are now being fired and

their practices shuttered. All for adhering to

their constitutionally protected religious

beliefs. Their plight is worthy of our attention.

Does 1-3 v. Mills, 142 S. Ct. 17, 22 (2021) (Gorsuch, J.,

dissenting). Since its inception, this case has come to

this Court three times and in the court of appeals four

times. In the third appeal, the First Circuit permitted

Petitioners to probe their claims in discovery. Upon

returning to the district court, the State immediately

claimed that its vaccine mandate was no longer

necessary, rescinded it (after maintaining it for three

years), and moved to dismiss Petitioners’ claims to

evade scrutiny of its discriminatory mandate.

Petitioners’ constitutional claims were worthy of this

Court’s attention four years ago and still are today.

Though the pandemic has ended, the ruinous

constitutional injury thrust upon Petitioners has not.

The questions presented for review are:

(1) Whether a State may avoid judicial review of

an authorizing statute that categorically prohibits

ii

religious

accommodations

to

compulsory

vaccination—contrary to Title VII of the Civil Rights

Act of 1964—by rescinding an emergency rule

applying the statute to a specific disease, while

continuing to enforce the statute in all other respects.

(2) Whether a State’s decision to maintain an

unconstitutionally

discriminatory

system

of

compulsory vaccination through three years of

litigation and only rescinds its vaccination mandate

immediately after an appellate court requires it to

submit to merits discovery concerning the

constitutionality of that system engages in a

litigation-driven sham to escape review of its

unconstitutional policies.

iii

PARTIES

Petitioners are Alicia Lowe, Jennifer Barbalias,

Garth Berenyi, Debra Chalmers, Nicole Giroux,

Adam Jones, and Natalie Salavaria. Respondents

Sarah Gagné-Holmes, in her official capacity as

Acting Commissioner of the Maine Department of

Health and Human Services and Dr. Puthiery Va,

Director of the Maine Center for Disease Control and

Prevention. Additional Parties are Janet T. Mills, in

her official capacity as Governor of the State of Maine,

MaineHealth, Genesis Healthcare of Maine, LLC,

MaineGeneral Health, and Northern Light Eastern

Maine Medical Center.

DIRECTLY RELATED PROCEEDINGS

ALICIA LOWE, et al. v. MILLS, et al., No. 22-1710,

(1st Cir. May 25, 2023), Opinion Affirming District

Court’s Dismissal of First Amended Verified

Complaint is reprinted in Appendix A at 1a-26a.

ALICIA LOWE, et al. v. MILLS, et al., No. 22-1710,

(1st Cir. May 25, 2023), Judgment is reprinted in

Appendix B at 27a-28a.

ALICIA LOWE, et al. v. MILLS, et al., No. 1:21-cv242-JDL, (D. Me. Aug. 18, 2022), Opinion and Order

Dismissing First Amended Verified Complaint is

reprinted in Appendix C at 29a-52a.

JOHN DOES 1-3, et al. v. MILLS, et al., No. 21-717,

(U.S. Feb. 22, 2022), Order Denying Petition for Writ

of Certiorari is reported at 142 S. Ct. 1112 (2022).

iv

JOHN DOES 1–3, et al. v. MILLS, et al., No. 21A90,

(U.S. Oct. 29, 2021), Order Denying Emergency

Application for Writ of Injunction is reported at 142

S. Ct. 17 (2021)

JOHN DOES 1–3, et al. v. MILLS, et al., No. 21A83,

(U.S. Oct. 19, 2021), Order Denying Emergency

Application for Writ of Injunction is available

electronically at 2021 WL 1170854.

JANE DOES 1–6, et al. v. MILLS, et al., No. 21-1826

(1st Cir. Oct. 19, 2021), Opinion and Order Affirming

Denial of Motion for Preliminary Injunction is

reported at 16 F.4th 20 (1st Cir. 2021).

JANE DOES 1–6, et al. v. MILLS, et al.. No. 1:21-cv242-JDL (D. Me. October 13, 2021), Order Denying

Motion for Preliminary Injunction is reported at 566

F. Supp. 3d 34 (D. Me. 2021).

v

TABLE OF CONTENTS

OPINIONS AND ORDERS BELOW ......................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........................................ 1

STATEMENT OF THE CASE ................................... 2

A. The State’s Vaccine Mandate. .............. 6

1. Respondents’

emergency

then

permanent then temporary rule. ......... 7

2.

Respondents’ discriminatory statute. .. 9

B. Petitioners’ Sincere Religious Beliefs. 10

C. Respondents’ Discriminatory Preference

For Non-Religious Medical

Exemptions. ........................................ 12

A. Procedural history prior to litigationdriven efforts to evade review. .................. 14

B. The First Circuit’s revival of Petitioners’

claims. ........................................................ 18

C. Respondents’ litigation-drive efforts to

evade

review

of

unconstitutionally

discriminatory

statutory

scheme

for

compulsory vaccination. ............................ 19

REASONS FOR GRANTING THE PETITION ...... 22

vi

A. The First Circuit wrongly held that a

facial challenge involving both the

authorizing statute and the implementing

regulation was moot when the emergency

regulation is rescinded. ............................. 22

B. This Court has held that a facial

challenge to statute is not mooted merely

because the state rescinds an implementing

regulation................................................... 24

A. The First Circuit below, and the Second,

Ninth, Eleventh, and D.C. Circuits, have

held that the State may evade constitutional

vii

review of its compulsory vaccination scheme

by rescinding it on the eve of discovery. ... 32

B. The Fifth, Ninth, and Tenth Circuits

have held that the government’s rescission of

a Covid-19 vaccination mandate to escape

judicial scrutiny does not moot a plaintiff’s

constitutional claims. ................................ 35

C. This Court’s precedents hold that a

State is not permitted to engage in litigationbased timing to avoid review of challenged

laws. ........................................................... 40

CONCLUSION ......................................................... 41

TABLE OF APPENDICES

APPENDIX A - ALICIA LOWE, et al. v. MILLS, et

al., No. 24-1284, (1st Cir. Jan. 17, 2025), Opinion

Affirming District Court’s Dismissal of First

Amended Verified Complaint ……………..………….1a

APPENDIX B - ALICIA LOWE, et al. v. MILLS, et

al., No. 24-1283, (1st Cir. Jan. 17, 2025),

Judgment ………………………………………………27a

APPENDIX C - ALICIA LOWE, et al. v. MILLS, et

al., No. 1:21-cv-242-JDL, (D. Me. Feb. 23, 2024),

Opinion and Order Dismissing First Amended

Verified Complaint…………………………………....29a

APPENDIX D - First Amended Verified Complaint

For Injunctive Relief, Declaratory Relief, and

Damages……………………………………………..…53a

APPENDIX E - Declaration of Nancy Beardsley..116a

viii

TABLE OF AUTHORITIES

Cases

Bacon v. Woodward,

104 F.4th 744 (9th Cir. 2024) ........................ 36, 37

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ... 24,

29, 30

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982) .............................24, 25, 26, 27

Crocker v. Austin,

115 F.4th 660 (5th Cir. 2024) .................. 37, 38, 39

Does 1-11 v. Board of Regents of University of

Colorado,

100 F.4th 1251 (10th Cir. 2024) .................... 39, 40

Does 1-2 v. Hochul,

2024 WL 5182675 (2d Cir. Dec. 20, 2024) ........... 34

Does 1-3 v. Mills,

2021 WL 1170854 (U.S. Oct. 19, 2021) ............... 15

Does 1-3 v. Mills,

2022 WL 1736742 (1st Cir. July 14, 2022) .......... 17

Does 1-3 v. Mills,

No. 21-1826, 2021 WL 4845812 (1st Cir. Oct. 15,

2021) ..................................................................... 15

Does 1-3 v. Mills, 142 S. Ct. 17 (2021) ................. 2, 15

Does 1-3 v. Mills, 39 F.4th 20 (1st Cir. 2022) .......... 17

Does 1-6 v. Mills,

566 F. Supp. 3d 34 (D. Me. 2021) ........................ 22

Does 1-6 v. Mills, 16 F.4th 20 (1st Cir. 2021) .......... 15

Donovan v. Vance,

70 F.4th 1167 (9th Cir. 2023) .............................. 34

ix

Health Freedom Defense Fund, Inc. v. Carvalho,

104 F.4th 715 (9th Cir. 2024) ........................ 35, 36

Jackson v. Noem,

2025 WL 868167 (5th Cir. Mar. 20, 2025) .......... 38

Knox v. Serv. Emps. Int’l Union, Local 1000,

567 U.S. 298 (2012) .............................................. 40

Los Angeles Cnty. v. Davis,

440 U.S. 625 (1979) .................................. 24, 25, 30

Lowe v. Mills,

2022 WL 3542187 (D. Me. Aug. 18, 2022) ... 7, 9, 22

Lowe v. Mills, 68 F.4th 706 (1st Cir. 2023) .... 7, 9, 18,

19, 23, 35

McCreary County, Ky. v. Am. Civil Liberties Union of

Ky., 545 U.S. 844 (2005) ...................................... 40

Navy Seal 1 v. Austin,

2023 WL 2482927 (D.C. Cir. Mr. 10, 2023) ......... 34

Ne. Fla. Chapter of Assoc. Gen. Contr. Of Am. v. City

of Jacksonville,

508 U.S. 656 (1993) .................................. 24, 27, 28

Regaldo v. Director, Ctr. For Disease Control,

2023 WL 239989 (11th Cir. Jan 18, 2023) .......... 34

Statutes

22 M.R.S.A. §802 ................................................ 5, 7, 9

42 U.S.C. §2000e-2 ............................................. 2, 3, 4

Rules

10-144 C.M.R. Ch. 264 ............................................... 8

22 M.R.S. § 802........................................................... 8

Fed. R. App. P. 8....................................................... 15

x

Other Authorities

2 Timothy 3:16 (KJV) ............................................... 10

Exodus (KJV)............................................................ 11

Isaiah 44 (KJV) ........................................................ 10

Psalm 139 (ESV) ...................................................... 10

1

OPINIONS AND ORDERS BELOW

The First Circuit’s opinion affirming the dismissal

of Petitioners’ complaint is reported at 126 F.4th 747

(1st Cir. 2025) and reprinted in Appendix A at 1a-26a.

The district court’s dismissal of Petitioners’ complaint

is reported at 718 F. Supp. 3d 69 (D. Me. 2024) and

reprinted in Appendix C at 29a-52a.

JURISDICTION

The First Circuit entered its opinion and

judgment, affirming the district court’s dismissal of

Petitioners’ complaint on January 17, 2025. (App. 1a26a, 27a-28a.) Petitioners invoke this Court’s

jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides, in relevant part, “Congress

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech . . . .” U.S. Const.

amend. I.

The Fourteenth Amendment to the United

States Constitution provides, in relevant part, “No

state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV.

2

STATEMENT OF THE CASE

I. INTRODUCTION

Petitioners are all former healthcare workers in

the State of Maine who submitted, under Title VII of

the Civil Rights Act of 1964, a request for a religious

accommodation from the State’s mandate that all

healthcare workers in Maine receive a COVID-19

vaccination as a condition of continued employment.

(App. 60a.) Justice Gorsuch described Petitioners’

fight years ago,

This case presents an important constitutional

question, a serious error, and an irreparable

injury. Where many other States have adopted

religious exemptions, Maine has charted a

different course. There, healthcare workers

who have served on the front line of a pandemic

for the last 18 months are now being fired and

their practices shuttered. All for adhering to

their constitutionally protected religious

beliefs. Their plight is worthy of our attention.

Does 1-3 v. Mills, 142 S. Ct. 17, 22 (2021) (Gorsuch, J.,

dissenting). (emphasis added).

Though circumstances and the seminal question

have changed from Petitioners’ original plea to this

Court, Petitioners’ plight has not and is still worthy of

this Court’s attention today. In August 2021, the

Governor instituted a vaccine mandate for healthcare

workers in the State of Maine. (App. 68a.) Prior to

their termination, Petitioners worked for healthcare

3

facilities in Maine that were subject to the Governor’s

vaccination mandate, including MaineHealth,

Genesis Healthcare of Maine, LLC, MaineGeneral

Health, and Northern Light Eastern Maine Medical

Center (“Employers”). Petitioners all sought

accommodations under Title VII for their sincerely

held religious objections to the COVID-19 vaccines

and were automatically refused such accommodations

solely because the State’s mandate prohibited any and

all such religious accommodations. (App. 59a.) While

the State’s statutory system prohibited religious

accommodations from compulsory vaccination, it

permitted the more favored non-religious medical

exemption to the same compulsory vaccine.

Petitioners filed a federal complaint against the State

and several private employers for instituting a

COVID-19 vaccination requirement that prohibited

religious accommodations in violation of the First and

Fourteenth Amendments to the United States

Constitution, and against the Employers for refusing

to provide the religious accommodations demanded by

Title VII.

Despite the plain import of Title VII’s requirement

that

employers

provide

accommodation

for

Petitioners’ sincerely held religious convictions, see 42

U.S.C. §2000e-2(a), Employers all explicitly informed

Petitioners that their religious convictions must be

overridden by state law, with no exception and no

accommodation

whatsoever.

When

rejecting

Petitioners’ request for religious accommodation,

Employers informed Petitioners that Title VII did not

apply, and the State’s position was that neither did

the First Amendment.

4

Petitioner Lowe was informed by her employer

that, under its view, “federal law did not supersede

state law in this instance.” (App. 80a, Compl. ¶77.)

Petitioner Lowe’s employer stated, based on the newly

implemented state mandate, “we are no longer able to

consider religious exemptions for those who work in

the state of Maine.” (App. 79a, Compl. ¶74.) Petitioner

Lowe was further informed that her employer

believed providing a religious accommodation

required by Title VII would cause it “to violate state

law by granting unrecognized exemptions.” (App. 80a,

Compl. ¶77.) It stated, “we are not able to grant a

request for a religious exemption from the state

mandate vaccine.” (Id.)

Petitioner Giroux was informed by her employer

that,: “Allowing for a religious exemption would be a

violation of the state mandate issued by Governor

Mills. So, unfortunately, that is not an option for us.”

(App. 83a, Compl. ¶85.)

All Petitioners were refused any consideration for

religious accommodation under Title VII and were

terminated from their employment solely because

Employers thought compliance with Title VII would

require violation of a contrary state law. (App. 79a83a, Compl. ¶¶72-86.)

Though one would search in vain for a merited

justification for such a constitutionally inverted

analysis, the First Circuit’s decision below supplied it.

As the First Circuit saw the matter, “granting the

accommodation would have exposed the Providers to

penalties for violating the [state] Mandate.” Lowe v.

5

Mills, 65 F.4th 706, 724 (1st Cir. 2023). The upshot of

all this: Petitioners were all fired from their

occupations solely because their employers thought

they were compelled to comply with an

unconstitutionally discriminatory statute that

prohibited religious accommodation while permitting

non-religious medical accommodations.

Respondents maintained their mandate for two

years after every unvaccinated healthcare worker had

been

terminated

for

seeking

a

religious

accommodation. In other words, despite eliminating

the alleged “danger” of having religious healthcare

workers continue in the field for which they had

served admirably for nearly two years, the State

nevertheless continued to enforce the specific

mandate as to COVID-19 vaccination long after any

purported risks remained in the healthcare setting.

Once the First Circuit issued its decision in the third

appeal, which permitted Petitioners to begin probing

their

constitutional

claims

against

the

unconstitutionally

discriminatory

statute

in

discovery, Respondents charted a different course.

At that point, on the eve of discovery, Respondents

suggested that “new evidence” required a

reconsideration of the mandate altogether, and

Respondents repealed the rule requiring COVID-19

vaccination. What Respondents did not repeal at that

time, and what remains alive and well today, is the

Statute, 22 M.R.S.A. §802, which prohibits any

religious accommodation for any compulsory

vaccination under any circumstances. At the same

time, the Statute permits the State’s preferred non-

6

religious medical exemption. Thus, on its face,

Respondents’ statutory scheme and the system of

compulsory vaccination treated Petitioners’ religious

objections less favorably than Respondents’ preferred

nonreligious medical exemptions.

Petitioners’ challenged the entire system. Though

Respondents repealed a small portion of that system

(the COVID-19 vaccination requirement), they have

not repealed the Statute that prohibits any religious

accommodation.

Respondents’

unconstitutional

scheme remaining in place to this day. Despite that

fact, the First Circuit below held that Respondents’

partial repeal of the unconstitutional system was

sufficient to moot Petitioners’ challenge to the entire

constitutionally injurious scheme. That decision

conflicts with this Court’s precedents and the

precedent of the Fifth, Ninth, and Tenth Circuits.

This Court should grant review and resolve the

conflicts.

II. FACTUAL BACKGROUND

A. The State’s Vaccine Mandate.

On August 12, 2021, the Governor announced that

Maine would require healthcare workers to receive

one of the three, then-available COVID-19 vaccines to

remain employed in the healthcare profession. (App.

67a, Compl. ¶31.) The Governor’s announcement

defined healthcare workers as “any individual

employed by a hospital, multi-level health care

facility, home health agency, nursing facility,

residential care facility, and intermediate care facility

7

for individuals with intellectual disabilities that is

licensed by the State of Maine.” (App. 68a, Compl.

¶32.) Respondents threatened to enforce the

vaccination mandate by revoking the licenses of all

healthcare employers who failed to mandate that all

employees receive the COVID-19 vaccine. (Id., ¶34.)

As the First Circuit previously recognized, the vaccine

mandate challenged by Petitioners “is the product of

th[e] rule and the related state statute.” Lowe v. Mills,

68 F.4th 706, 711 (1st Cir. 2023). The district court,

in its first dismissal of Petitioners’ Complaint,

likewise recognized that the emergency rule and the

statute both operated “in tandem” to effectuate the

injury Petitioners alleged. Lowe v. Mills, 2022 WL

3542187, *5 (D. Me. Aug. 18, 2022) (“DHHS’s removal

of the religious and philosophical exemptions in April

2021 served to conform the Rule to the requirements

of the statute, 22 M.R.S.A. §802(4-B), which operate

in tandem. (emphasis added).

1. Respondents’

emergency

then

permanent then temporary rule.

In general, Maine law has long required certain

licensed healthcare facilities to require certain

vaccines for healthcare workers. Lowe, 68 F.4th at

709-10. Since 2001, the Maine Department of Health

and Human Services (“MDHHS”) has been delegated

authority to designate the diseases against which a

healthcare worker is required to be vaccinated. Id. at

710. In August 2021, the Maine Center for Disease

Control and Prevention (“MCDC”) issued an

emergency rule that added COVID-19 to the list of

diseases against which healthcare workers must be

8

vaccinated. (App. 68a, Compl. ¶36.) Effective on

September 1, 2021, MCDC amended 10-144 C.M.R.

Ch. 264 to eliminate the ability of healthcare workers

in Maine to request and obtain a religious exemption

and accommodation from the COVID-19 vaccination

mandate. (Id., ¶36.) The only exemptions Maine now

lists as available to healthcare workers are those

outlined in 22 M.R.S. § 802.4-B, which exempts only

those individuals for whom an immunization is

medically inadvisable and who provide a written

statement from a doctor. (App. 69a, Compl. ¶37.)

Under the prior version of the rule, 10-144 C.M.R.

Ch. 264, § 3-B, a healthcare worker could be exempt

from mandatory immunizations if the “employee

states in writing an opposition to immunization

because of a sincerely held religious belief.” (Id., ¶38.)

Maine removed the religious exemption to mandatory

immunizations effective September 1, 2021. (Id., ¶39

(“The health care immunization law has removed the

allowance for philosophical and religious exemptions

and has included influenza as a required

immunization.”). MDHHS made the Emergency Rule

permanent in November 2021. Lowe, 68 F.4th at 711.

Permanent, that is, only until the First Circuit

reversed the earlier dismissal of Petitioners’

Complaint, the effect of which was to require

Respondents to submit to discovery concerning the

constitutionality of their discriminatory system of

exemptions to compulsory vaccination, at which point

Respondents promptly and suspiciously repealed the

“permanent” rule to evade constitutional scrutiny.

9

2. Respondents’ discriminatory statute.

Much like the emergency-turned-permanentturned-rescinded rule requiring healthcare workers

in Maine to receive COVID-19 vaccination as a

condition of employment, Maine’s statutory scheme

prohibits religious exemptions from compulsory

vaccination. Prior to 2019, Maine permitted

healthcare workers to request and receive three

potential

accommodations

from

compulsory

vaccination: (1) a medical exemption, (2) a religious

exemption, and (3) a philosophical exemption. See

Lowe, 2022 WL 3542187, *4 (citing the previous

version of 22 M.R.S.A. §802(4-B)(A), (B) (2019)). (App.

69a, Compl. ¶38.) The medical exemption was

available for anyone “who provided a physician’s

written statement that immunization . . . may be

medically inadvisable.” Lowe, 2022 WL 3542187, *4.

The religious and philosophical exemptions were

available to those “who stated in writing a sincere

religious or philosophical belief that is contrary to the

immunization requirement.” Id.

Respondents

revoked

the

religious

and

philosophical exemptions in 2019, but retained a

medical exemption. Lowe, 68 F.4th at 710 (noting that

the medical exemption was now available if a licensed

physician, nurse practitioner or physician assistant

stated that the immunization “may be medically

inadvisable”). MDHHS made the removal of the

religious and philosophical exemptions applicable to

healthcare workers in September 2021. (App. 69a,

Compl. ¶39.)

10

B. Petitioners’ Sincere Religious Beliefs.

Petitioners have sincerely held religious beliefs

that precluded them from accepting or receiving any

of the three then-available COVID-19 vaccines

because of their connection to aborted fetal cell lines,

whether in the vaccines’ origination, production,

development, or testing. (App. 69a, Compl. ¶40.) A

fundamental component of Petitioners’ sincerely held

religious beliefs is that all life is sacred, from the

moment of conception to natural death, and that

abortion is a grave sin against God and the taking of

an innocent life. (App. 70a, Compl. ¶41.) Petitioners’

sincerely held religious beliefs are rooted in

Scripture’s teachings that “[a]ll Scripture is given by

inspiration of God, and is profitable for doctrine, for

reproof, for correction, [and] for instruction in

righteousness.” (Id., ¶42. (quoting 2 Timothy 3:16

(KJV)).) Because of their sincerely held religious

beliefs, Petitioners must conform their lives,

including their decisions relating to medical care, to

the commands and teaching of Scripture. (Id., ¶43.)

Petitioners have sincerely held religious beliefs

that God forms children in the womb and knows them

prior to their births, and that life is sacred from the

moment of conception. (Id., ¶44 (quoting, inter alia,

Psalm 139:13–14 (ESV); Psalm 139:16 (ESV); Isaiah

44:2 (KJV)).) Petitioners have sincerely held religious

beliefs that every child’s life is sacred because each

child is made in the image of God. (App. 71a, Compl.

¶45 (quoting Genesis 1:26–27 (KJV)).) Because life is

sacred from the moment of conception, the killing of

that innocent life is the murder of an innocent human

11

in violation of Scripture. (Id., ¶46 (quoting, inter alia,

Exodus 20:13 (KJV); Exodus 21:22–23 (KJV); Exodus

23:7 (KJV)).)

Petitioners have sincerely held religious beliefs,

rooted in the Scriptures, that anything that condones,

supports, justifies, or benefits from the taking of

innocent human life via abortion is sinful, and

contrary to the Scriptures. (Id., ¶48.) Petitioners

believe that it is an affront to Scripture’s teaching for

them to use a product derived from or connected in

any way with abortion. (App. 72a, Compl. ¶49.)

Petitioners’ sincerely held religious beliefs

compelled them to abstain from accepting or receiving

any of the three then-available COVID-19 vaccines

because of the unquestioned connection to aborted

fetal cells. (App. 72a-73a, Compl. ¶¶50, 52, 55, 56, 57.)

Because all three of the COVID-19 vaccines then

available to Petitioners were developed and produced

from, tested with, researched on, or otherwise

connected with the aborted fetal cell lines HEK-293

and PER.C6, Petitioners’ sincerely held religious

beliefs compelled them to abstain from injecting any

of these products into their bodies. And, because

Petitioners’ sincerely held religious convictions

precluded them from accepting a COVID-19 vaccine,

they were terminated from their employment. (App.

58a, Compl. ¶5.)

12

C. Respondents’ Discriminatory Preference

For Non-Religious Medical Exemptions.

Respondents’ compulsory vaccination system

requiring Petitioners to receive a COVID-19 vaccine

contained only one potential exemption: a

nonreligious medical exemption. (See also App. 68a69a, Compl., ¶¶36-39.) The option to obtain an

exemption and accommodation for Petitioners’

sincerely held religious beliefs was revoked by

Respondents, and precluded Petitioners from

obtaining that which the First Amendment and

federal law required. It was not merely theoretical

that Petitioners’ religious beliefs were relegated to

subservient status—they were explicitly told by their

employers that Maine prohibited the employers from

offering or providing any respect for their religious

beliefs.

In its response to Petitioner Lowe, MaineHealth

indicated it was perfectly willing to accept and grant

medical exemptions but not religious exemptions.

(App. 84a, Compl. ¶88). Specifically, MaineHealth

stated to Petitioner Lowe: “You submitted a religious

exemption, your request is unable to be evaluated due

to a change in the law. Your options are to receive

vaccination or provide documentation for a medical

exemption to meet current requirements for

continued employment.” (Id.) To add clarity to

Petitioner Lowe’s disfavored status, MaineHealth

stated: “If you seek an accommodation other than a

religious exemption from state mandated vaccine,

please let us know.” (Id., ¶90.)

13

Petitioner Barbalias’s employer, Northern Light

Eastern Maine Medical Center, indicated her request

for a religious accommodation was impermissible and

that only medical exemptions would be considered or

approved. (Id., ¶ 91.) Specifically, Northern Light

stated that “the only exemptions that may be made to

this requirement are medical exemptions” and that

all Northern Light employees must comply with the

Vaccine Mandate “except in the case of an approved

medical exemption.” (Id.)

Petitioner Giroux’s employer, MaineGeneral,

stated that all healthcare workers must comply with

the Vaccine Mandate “unless they have a medical

exemption,” and that the “mandate states that only

medical exemptions are allowed, no religious

exemptions are allowed.” (App. 85a, Compl. ¶92.)

It was by force of Respondents’ COVID-19

vaccination mandate and the discriminatory

statutory system that prohibited Petitioners from

obtaining any consideration for their sincere religious

objections that Petitioners’ employers prohibited

them from receiving accommodations for their sincere

religious convictions and terminated them.

Respondents created a two-tiered system of

exemptions and placed religious beliefs and those who

hold them in a class less favorable than other

exemptions that Respondents were perfectly willing

to accept. Under Respondents’ statutory and

regulatory system creating a disfavored class of

religious exemptions, employers were not even

permitted to consider religious exemptions, much less

14

grant them to those who have sincerely held religious

objections to the COVID-19 vaccines.

III.

PROCEDURAL HISTORY

A. Procedural history prior to litigationdriven efforts to evade review.

Petitioners commenced this action on August 25,

2021, with the filing of a Verified Complaint (District

Court Docket Entry (“dkt.”) No. 1) and a Motion for

Temporary Restraining Order and Preliminary

Injunction (dkt. 3). On August 26, the district court

held a hearing on Petitioenrs’ Motion for Temporary

Restraining Order and issued an order denying

Petitioners’ motion the same day. (Dkt. 11.) The

district court initially scheduled a hearing on

Petitioners’ Motion for Preliminary Injunction for

September 10, 2021, but granted Defendants’ request,

over Petitioners’ objection, to continue that hearing to

September 20. (See dkt. 44.) The court held a hearing

on Petitioners’ Motion for Preliminary Injunction on

September 20, took the matter under advisement, and

informed the parties that a decision would issue

expeditiously. Twenty-three days later, and two days

before Petitioners’ deadline to become vaccinated or

face termination, the district court issued its decision

denying injunctive relief. (Dkt. 65.)

Petitioners timely noticed their appeal to the First

Circuit within an hour of the district court’s decision.

(Dkt. 66.) Immediately thereafter, Petitioners moved

for an injunction pending appeal in the district court

(dkt. 67), which the district court denied on October

13, 2021. (Dkt. 68.) Petitioners promptly moved for an

15

emergency injunction pending appeal under Fed. R.

App. P. 8 in the First Circuit on October 14, 2021. The

court of appeals denied the injunction pending appeal

without comment the next day, October 15, 2021. See

Does 1-3 v. Mills, 2021 WL 4845812 (1st Cir. Oct. 15,

2021).

Immediately after the court of appeals denied

Petitioners’ motion for injunction pending appeal,

Petitioners sought emergency relief in this Court,

filing an emergency application for injunctive relief.

On October 19, 2021, Justice Breyer denied

Petitioners’ emergency application for injunctive

relief. Does 1-3 v. Mills, 2021 WL 1170854 (U.S. Oct.

19, 2021). Justice Breyer’s denial of Petitioners’

emergency application “without prejudice to

[Petitioners] filing a new application after the Court

of Appeals issues a decision on the merits of the

appeal, or if the Court of Appeals does not issue a

decision by October 29, 2021.” Id. at *1.

That same day, October 19, 2021, the court of

appeals issued its decision in Petitioners’ preliminary

injunction appeal, affirming the district court’s denial

of preliminary injunction. Does 1-6 v. Mills, 16 F.4th

20 (1st Cir. 2021). Petitioners again sought

emergency injunctive relief against Respondents’

discriminatory compulsory vaccination system in this

Court on October 21, 2021. That application was

referred by Justice Breyer to the full Court, which

denied the application on October 29, 2021. Does 1-3

v. Mills, 142 S. Ct. 17 (2021).

16

Three Justices dissented from the denial of

injunctive relief. See id. at 18. As Justice Gorsuch

wrote: “Maine has adopted a new regulation requiring

certain healthcare workers to receive COVID–19

vaccines if they wish to keep their jobs. Unlike

comparable rules in most other States, Maine’s rule

contains no exemption for those whose sincerely held

religious beliefs preclude them from accepting

the vaccination.” Id. (Gorsuch, J., dissenting). But,

“[t]he State’s vaccine mandate is not absolute;

individualized exemptions are available, but only if

they invoke certain preferred (nonreligious)

justifications. Under Maine law, employees can avoid

the vaccine mandate if they produce a “written

statement from a doctor or other care provider

indicating that immunization may be medically

inadvisable.” Id. at 19 (cleaned up). “From all this, it

seems Maine will respect even mere trepidation over

vaccination as sufficient, but only so long as it is

phrased in medical and not religious terms. That kind

of double standard is enough to trigger at least a more

searching (strict scrutiny) review.” Id. (emphasis

original).

Justice Gorsuch noted that “Maine’s decision to

deny a religious exemption in these circumstances

doesn’t just fail the least restrictive means test, it

borders on the irrational.” Id. at 22 (emphasis added).

“Where many other States have adopted religious

exemptions, Maine has charted a different course.

There, healthcare workers who have served on the

front line of a pandemic for the last 18 months are

now being fired and their practices shuttered,” and

17

“[a]ll for adhering to their constitutionally protected

religious beliefs.” Id.

On January 27, 2022, news media organizations

intervened for the sole purpose of challenging

Petitioners previously granted pseudonymity (dkt.

105)—to which no party had objected—and on

February 14, the defendants filed motions to dismiss

Petitioners’ claims (dkts. 107, 108, 109). On May 31,

2022, the district court granted the intervenors’

motion and ordered Petitioners to file an amended

complaint disclosing their identities by July 11, 2022.

(Dkt. 131.) Petitioners appealed the pseudonymity

order to the court of appeals on June 1, 2022 (dkt. 132)

and sought an emergency stay preventing the

disclosure of their identities. On June 24, 2022, the

district court held a hearing on Defendants’ motions

to dismiss. (Dkt. 146.)

On July 7, 2022, four days before Petitioners were

required to reveal their identities in an amended

complaint, the First Circuit denied Petitioners’

requested stay of the pseudonymity order, Does 1-3 v.

Mills, 39 F.4th 20 (1st Cir. 2022), effectively

foreclosing any relief that could be obtained through

full briefing and argument. Petitioners voluntarily

dismissed the appeal. See Does 1-3 v. Mills, 2022 WL

1736742 (1st Cir. July 14, 2022).

Petitioners filed their First Amended Verified

Complaint on July 11, 2022. (App. 053a-115a.) Prior

to filing the amended complaint, defendants had

moved to dismiss the Complaint for failure to state a

claim and lack of jurisdiction on February 14, 2022.

18

(Dkt. 107, 108, 109.) The district court originally set a

hearing on those motions for June 2, 2022 (dkt. 123),

which was cancelled pending Petitioners’ appeal of

the order to disclose their identities. (Dkt. 135.) After

returning to the district court on the First Amended

Verified Complaint, the district court set another

hearing on the motions to dismiss for June 24, 2022.

(Dkt. 137.) On August 18, 2022, the district court

entered an order dismissing Petitioners’ amended

complaint for failure to state a claim and lack of

jurisdiction (dkt. 156) and entered judgment of

dismissal the same day. (Dkt. 157.)

Petitioners timely noticed their appeal to the First

Circuit on September 15, 2022. (Dkt. 158.) The Court

of Appeals heard oral arguments on that appeal on

May 4, 2023, and entered its Opinion reversing in

part the district court’s dismissal on May 25, 2023,

Lowe, 68 F.4th 706, permitting Petitioners to probe

their constitutional claims in discovery.

B. The First Circuit’s revival of Petitioners’

claims.

In Petitioners’ appeal of the original dismissal of

their claims, the court of appeals concluded:

Applying the Rule 12(b)(6) standard and

drawing all reasonable inferences in the

plaintiffs’ favor, we conclude that it is plausible,

in the absence of any factual development, that

the Mandate falls in this category, based on the

complaint’s allegations that the Mandate

allows some number of unvaccinated

individuals to continue working in healthcare

19

facilities based on medical exemptions while

refusing to allow individuals to continue

working while unvaccinated for religious

reasons.

Lowe, 68 F.4th at 714. The court of appeals further

held that “it is plausible based on the plaintiffs’

allegations that the medical exemption undermines

these interests in a similar way to a hypothetical

religious exemption.” Id. at 715. Simply put, the First

Circuit concluded that it had “reason to be skeptical

that dismissal is appropriate absent further factual

development.” Id. It held that “applying the

plausibility standard applicable to Rule 12(b)(6)

motions and drawing all reasonable inferences from

the complaint’s factual allegations in the plaintiffs’

favor, the complaint states a claim under the Free

Exercise Clause.” Id. at 718. The court of appeals

concluded the same as to Petitioners’ Equal

Protection claims. Id. The First Circuit then

remanded the matter back to the district court for

Petitioners to probe their claims in discovery and

have a trial on the merits. Id. at 725.

C. Respondents’ litigation-drive efforts to

evade review of unconstitutionally

discriminatory statutory scheme for

compulsory vaccination.

Upon returning to the district court, Petitioners

attempted to begin probing their claims in discovery

only to be met with Respondents’ new strategy—this

time to evade review. On July 11, 2023, MDHHS

announced that it was proposing to revoke the

20

COVID-19 vaccination requirement for healthcare

workers in Maine. (App. 127a, Declaration of Nancy

Beardsley, (“Beardsley Decl.”), ¶38.) MDHHS

announced that “[a]round the end of May 2023 and

beginning of June 2023,” corresponding perfectly with

the timing of the First Circuit’s remand of Petitioners’

claims against the State for discovery and trial on the

merits, Respondents began “reviewing” available

science on the continued need for its COVID-19

vaccination mandate for healthcare workers. (App.

120a, Bearsley Decl. ¶16.) Respondents claimed that

some of their decision was based upon the Center for

Medicare and Medicaid Services’ removal of its

healthcare worker mandates, but under its own

admissions, it was aware of that revocation prior to

this Court even holding oral arguments on the

previous appeal. (See App. 119a, Beardsley Decl. ¶9

(noting that CMS had announced its intent to revoke

the rule on May 1, 2023—three days before the First

Circuit held oral argument and a full three weeks

before the court of appeals entered its opinion sending

Plaintiffs’ claims back to the district court).)

In addition to the suspicious timing that perfectly

coincided with the court of appeals’ revival of

Petitioners’ constitutional challenges to the

discriminatory system, Respondents timing for the

revocation of the COVID-19 vaccination requirement

for healthcare workers was also suspiciously

coincidental for another independent reason. Though

Respondents contended that their decision to revoke

the COVID-19 vaccination requirement for

healthcare workers was purportedly triggered—in

part—by the CMS revocation of its rule, they also

21

claimed that they were revoking the requirement

based on the “science and research,” “changed

circumstances

regarding

COVID-19

variants,

vaccination rates, and disease prevalence,” and the

“evidence base for the rule requiring COVID-19

vaccination for healthcare workers.” (App. 120a,

Beardsley Decl. ¶¶16-18.) But, as Respondents’ sworn

testimony demonstrated below—the number of

hospitalizations and deaths were increasing

dramatically at the exact time of the repeal. (App.

129a-130a, Beardsley Decl. ¶¶45, 47.) From July

2023—when the State proposed repealing the Rule—

to August 2023—when the repeal became effective,

Maine saw an over 40 percent increase in COVID-19

hospitalizations (id., ¶45), and a 167 percent increase

in deaths over the same period. (Id., ¶47.) Yet,

Respondents still averred that the State’s decision to

revoke the Rule was based on the science and

“declining hospitalization and death rates.” (App.

131a, Beardsley Decl. ¶51.) That was not true.

The First Circuit held below that, despite the

significant evidence against the merits of

Respondents’ rescission and the suspicious timing of

that decision, Petitioners’ claims were nevertheless

moot because the mandate had been rescinded. (App.

28a.) This Petition follows.

22

REASONS FOR GRANTING THE PETITION

I. The First Circuit’s Holding That A State May

Maintain An Discriminatory Operative

Statute That Directly Conflicts with Title VII

of the 1964 Civil Rights Act And That Facially

Violates The First Amendment May Evade

Review By Rescinding A Regulation

Implementing Compulsory Vaccination Over

Every Religious Objection Conflicts With

This Court’s Precedents.

A. The First Circuit wrongly held that a

facial challenge involving both the

authorizing statute and the implementing

regulation was moot when the emergency

regulation is rescinded.

As the district court previously (and correctly)

stated, Petitioners’ Complaint included a challenge to

both

the

Statute

prohibiting

religious

accommodations from compulsory vaccination and

the Rule which made that Statute applicable to

COVID-19 vaccination. Lowe v. Mills, 2022 WL

3542187, *5 (D. Me. Aug. 18, 2022) (“the COVID-19

vaccine mandate refer[s] to both the current version

of the Rule and the statute, 22 M.R.S.A. §802(4-B),

which operate in tandem” to prohibit Plaintiffs from

obtaining a religious exemption to compulsory

vaccination.). See also Does 1-6 v. Mills, 566 F. Supp.

3d 34, 43 (D. Me. 2021) (“when I refer in this decision

to the COVID-19 vaccine mandate, I am referring to

the Rule as it operates in conjunction with the statute,

22 M.R.S.A. §802(4-B), which authorizes it.”). Prior to

23

its decision below, the First Circuit had likewise

referred to Petitioners’ challenge as to both the Rule

and the Statute. Lowe v. Mills, 68 F.4th 706, 709 (1st

Cir. 2023) (“Since 2021, Maine has required certain

healthcare facilities to ensure that their non-remote

workers are vaccinated against COVID-19. See 10144-264 Me. Code R. § 2(A)(7); see also Me. Rev. Stat.

Ann. tit. 22, § 802. We refer to this requirement as the

“Mandate.”). In other words, up until the last decision

below, all courts treated Petitioners’ challenge as to

the entirety of the discriminatory system of

accommodations.

That only changed when Respondents revoked a

part of that system—the Rule. Despite its prior

holdings to the contrary, the First Circuit went to

great lengths in the latest appeal to suggest that

Petitioners’ challenge to the system of discriminatory

vaccination exemptions did not include a challenge to

the Statute at all, but was merely a challenge to the

Rule applying the Statute to COVID-19. (App. 11a

(“The district court correctly concluded that the

appellants’ complaint did not present a facial

challenge to the statute. . . Appellants’ challenge was

only to that portion of the regulation concerning

COVID-19 vaccinations which was in existence from

August 12, 2021 to September 5, 2023.” (cleaned up)).)

The First Circuit, contrary to the district court’s

decision below and its own decision before, see Lowe,

68 F.4th at 709, held that Petitioners had

nevertheless only challenged the “emergency rule –

but not the enabling statute.” (App. 12a.)

24

The First Circuit below held that Respondents’

rescission of the Rule requiring COVID-19

vaccination mooted Petitioners’ claims against the

system that treated religious accommodation

requests differently and less favorably than

nonreligious, medical accommodation requests. (App.

13a (“Because the COVID-19 vaccine mandate has

been repealed by way of COVID-19’s removal from

Chapter 264, and it has not been reinstated, there is

simply no ongoing conduct to enjoin.”).) It therefore

rejected Petitioners’ contentions that their claims

were not moot because the Statute remains alive and

well. The First Circuit’s decision below directly

conflicts with this Court’s precedents.

B. This Court has held that a facial challenge

to statute is not mooted merely because

the state rescinds an implementing

regulation.

The First Circuit’s decision below conflicts with

this Court’s precedents on the issue of whether a

constitutional challenge to a discriminatory system of

compulsory vaccination is mooted by a partial repeal

of the State’s statutory system imposing the

constitutional injury. E.g., City of Mesquite v.

Aladdin’s Castle, Inc., 455 U.S. 283, 288-89 (1982);

City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983);

Ne. Fla. Chapter of Assoc. Gen. Contr. Of Am. v. City

of Jacksonville, 508 U.S. 656 (1993); Los Angeles Cnty.

v. Davis, 440 U.S. 625, 631 (1979).

Contrary to the decision below, this Court has held

that a State’s efforts to evade constitutional review of

25

an allegedly discriminatory statutory system is not

mooted unless interim events “have completely and

irrevocably eradicated the effects of the alleged

violation.” Davis, 440 U.S. at 631. At best, what

Respondents did was effectuate a partial repeal of the

constitutional violations that Petitioners challenged

below. Under this Court’s precedents, a partial repeal

of the challenged conduct is insufficient to moot the

case. See, e.g., Aladdin’s Castle, Inc., 455 U.S. at 28889 (holding that defendant’s partial repeal of a

challenged ordinance did not moot the case). The

decision below conflicts with this Court’s precedents.

In Aladdin’s Castle, petitioners challenged the

government’s ordinance prohibiting it from operating

its coin-operated amusements in the city. 455 U.S. at

285-86. After securing a lease arrangement to operate

it establishment, the police chief denied petitioner’s

application for a business license because he found

that petitioner’s parent corporation was connected

with criminal elements—a term in the statute

authorizing him to withhold business licenses. Id. at

287. Petitioner sought relief in the state court system,

contending that the statute was unconstitutionally

vague, secured an injunction, and obtained the

business license. Id. Immediately after providing

petitioner with a business license, the City enacted a

new ordinance which effectively repealed petitioner’s

license. Id. at 288. Petitioner challenged the amended

ordinance in federal court, obtained an injunction

against the amended ordinance, and that injunction

was affirmed on appeal. Id.

26

In the interim between the Court of Appeals’

decision and this Court’s adjudication of the appeal,

the City again amended the operative ordinance and

repealed the portion of the offending language

altogether. Id. This Court held that a partial repeal of

an allegedly unconstitutional ordinance was not

sufficient to moot an otherwise well-pleaded claim. “A

question of mootness is raised by the revision of the

ordinance that became effective while the case was

pending in the Court of Appeals. When that court

decided that the term “connections with criminal

elements” was unconstitutionally vague, that

language was no longer a part of the ordinance.” Id.

But the fact that the government has enacted a

partial repeal or total revision of the allegedly

offending ordinance is not alone sufficient to moot a

claim. “Such abandonment is an important factor

bearing on the question whether a court should

exercise its power to enjoin the defendant from

renewing the practice, but that is a matter relating to

the exercise rather than the existence of judicial

power.” Id. at 289.

In this case the city’s repeal of the objectionable

language would not preclude it from reenacting

precisely the same provision if the District

Court's judgment were vacated. The city

followed that course with respect to the age

restriction, which was first reduced for Aladdin

from 17 to 7 and then, in obvious response to

the state court’s judgment, the exemption was

eliminated. There is no certainty that a similar

course would not be pursued if its most recent

27

amendment were effective to defeat federal

jurisdiction.

Id.

Because the partial repeal of the operative

language of the ordinance did not completely

eradicate its unconstitutional effects, this Court held

that it was required to review the merits of the claim.

That holding is in direct conflict with the First

Circuit’s decision below that the State’s repeal of the

offending regulation is sufficient to moot Petitioners’

claims against the operative statute that created the

unconstitutionally discriminatory system.

In Northeastern Florida, this Court likewise held

that the government’s partial repeal of the challenged

ordinance does not moot a plaintiff’s claims. 508 U.S.

at 660-61. After the City repealed the ordinance that

had been found unconstitutional by the district court

(and after successful appeal in the Eleventh Circuit),

it repealed the offending ordinance before this Court

could reach the merits. Id. After repealing the

allegedly offending language, the City moved to

dismiss the appeal in this Court, claiming “that there

was no longer a live controversy with respect to the

constitutionality of the repealed ordinance.” Id. at

661. The City claimed (as did Respondents below) that

“the repeal of the challenged ordinance renders the

case moot.” Id. This Court disagreed.

Instead, this Court held that “repeal of the

objectionable language” does not render a case moot if

28

circumstances demonstrate that the unconstitutional

effect is not eradicated. Id. at 662.

This is an a fortiori case. There is no mere risk

that Jacksonville will repeat its allegedly

wrongful conduct; it has already done so. Nor

does it matter that the new ordinance differs in

certain respects from the old one. City of

Mesquite does not stand for the proposition that

it is only the possibility that the selfsame

statute will be enacted that prevents a case

from being moot; if that were the rule, a

defendant could moot a case by repealing the

challenged statute and replacing it with one

that differs only in some insignificant respect.

The gravamen of petitioner’s complaint is that

its members are disadvantaged in their efforts

to obtain city contracts. The new ordinance may

disadvantage them to a lesser degree than the

old one, but insofar as it accords preferential

treatment to black- and female-owned

contractors—and, in particular, insofar as its

“Sheltered Market Plan” is a “set aside” by

another name—it disadvantages them in the

same fundamental way.

Id. (second emphasis added).

The same is true of Respondents’ decision to keep

the Statute prohibiting religious accommodations to

compulsory vaccination while repealing the Rule

applying it to COVID-19. The State’s discriminatory

statute prohibits religious accommodations for any

compulsory vaccination, yet permits nonreligious

29

accommodations to the same compulsory vaccination,

and the Rule made that applicable to COVID-19.

While the Rule was rescinded to evade review may

disadvantage Petitioners “to a lesser degree,” the

unconstitutional discrimination against religious

beliefs “disadvantages them in the same fundamental

way” under the Statute. The First Circuit’s decision

below was in direct conflict with this Court’s

precedents.

In Lyons, the petitioner challenged the City of Los

Angeles’s police “department-authorized chokeholds”

in certain police encounters. 461 U.S. at 99. Petitioner

had been stopped by officers of the Los Angeles police

department and, during that stop, had been placed in

a “bar arm control” or “carotid-artery control”

chokehold. Id. at 97-98. Through its official and

unofficial

policies,

the

police

department

“authorize[d] the use of the holds in situations where

no one is threatened by death or grievous bodily

harm.” Id. at 99. The district court enjoined the police

department’s policy of permitting chokeholds in

certain situations, the court of appeals affirmed the

injunction, and this Court granted certiorari. Id. at

100.

During the interim period between this Court’s

grant of certiorari and the parties’ briefing, the City

of Los Angeles “imposed a six-month moratorium on

the use of the carotid-artery chokehold except under

circumstance where deadly force is authorized.” Id.

The petitioner contended that the moratorium

mooted plaintiff’s claims because he was no longer

threatened with injury from the allegedly

30

unconstitutional policy authorizing the use of the

offending chokeholds. Id. This Court disagreed,

holding that a repeal of a policy or regulation that

does not—by its own operation—permanently repeal

the allegedly unconstitutional government action is

not sufficient to moot a plaintiff’s claims. Id. at 101.

“[W]hile acknowledging that subsequent event have

significantly changed the posture of this case,” the

Court nevertheless noted that “the case is not moot

because the moratorium is not permanent and may be

lifted at any time.” Id. “[S]ince the moratorium by its

terms is not permanent,” [i]ntervening evens have not

‘completely eradicated the effects of the alleged

violation.” Id. (quoting Davis, 440 U.S. at 631). The

same is true here because the Statute remains alive

and well. The First Circuit’s decision cannot be

reconciled with Lyons.

II. The First Circuit’s Holding That The State’s

Decision To Maintain Its Discriminatory

Compulsory Covid-19 Vaccination Scheme

For Three Years In Direct Conflict With Title

VII of the 1964 Civil Rights Act And Rescind

It Only When The State Will Be Subjected To

Merits Discovery By Order Of the Court Of

Appeals Does Not Moot The Case According

To The Precedent Of This Court And The

Fifth, Ninth, and Tenth Circuits.

Respondents admitted below that it was not until

“around the end of May 2023 and the beginning of

June 2023,” that they purportedly “reviewed the

available science and research on the then current

risks of COVID-19 in healthcare settings.” (App. 120a,

31

Beardsley Decl. ¶16.) Respondents announced that

“[a]round the end of May 2023 and beginning of June

2023,” (App. 120a, Beardsley Decl. ¶16),

corresponding perfectly with the timing of the court of

appeals’ remand of Plaintiffs’ claims for discovery and

trial on the merits.

Respondents claimed that some of their decision

was based upon the Center for Medicare and Medicaid

Services’ removal of its healthcare worker mandates,

but under their own admissions, they were aware of

that revocation prior to the court of appeals even

holding oral arguments on the previous appeal. (See

App. 119a, Beardsley Decl. ¶9 (noting that the CMS

had announced its intent to revoke the rule on May 1,

2023—three days before the First Circuit held oral

argument and a full three weeks before the court of

appeals entered its opinion sending Plaintiffs’ claims

back to the district court).)

Both the First Circuit and the district court

attributed little weight to this unquestionably

suspicious timing, calling Petitioners’ recitation of the

sequence of events “misleading.” (App. 10a.) But the

timing is critical. After Petitioners fought for two

years to have their day in Court, and despite

Respondents admitting that they were aware of

changed circumstances concerning the risk of COVID19 beginning “in January 2022” (App. 47a),

Respondents did nothing to alter the challenged

Vaccine Mandate until the eve of discovery

commencing in the district court, and after the First

Circuit had required they submit to Plaintiffs’

32

discovery. That is litigation-based timing, but the

First Circuit’s decision below disagreed.

A. The First Circuit below, and the Second,

Ninth, Eleventh, and D.C. Circuits, have

held

that

the

State

may

evade

constitutional review of its compulsory

vaccination scheme by rescinding it on

the eve of discovery.

The First Circuit held that “the defendant state

officials have independently demonstrated that the

‘voluntary’ repeal of the COVID-19 regulatory vaccine

mandate was not done in order to moot the case.”

(App. 19a.)

The First Circuit noted that Respondents

“continued to monitor the COVID-19 public health

situation in Maine,” and that the May 2023 timeframe

for Respondents’ rescission of the challenged rule did

not have anything to do with its own previous

decision—which also came down (coincidentally) in

May 2023. (App. 20a (“In early 2023, when the federal

government announced that the public health

emergency would end on May 11, MDHHS began

planning for the end of Maine’s public health

emergency, which was set to terminate on the same

date. In early May, CMS announced that it planned

to rescind the federal vaccine requirement, which it

did on June 5, 2023. Following these events, and in

recognition of changed circumstances regarding

COVID-19 variants, vaccination rates and disease

prevalence, around the end of May and the beginning

of June, MDHHS began a review of the available

33

science and research undergirding its vaccine

requirement. It concluded, based on the changed

COVID-19 risk in Maine, that the mandate was no

longer necessary.”).

The

First

Circuit

rejected

Petitioners’

demonstration that Respondents’ rescission was

litigation-driven and effectuated to evade the courts’

review of the unconstitutional scheme. (App. 21a

(noting that Petitioners claimed that “the timing

shows that it was this court’s reinstatement of their

claims and remand which motivated the Maine health

officials to revoke the regulation.”). The First Circuit

cited to the evidence showing that “the number of

hospitalizations and deaths were increasing

dramatically at the exact time of Defendants’ repeal.”

(App. 21a) Nevertheless, despite noting the timing

concerns and the questionable scientific basis for

Respondents’ rescission, the First Circuit held that

the data was insufficient to suggest that it was done

to moot Petitioners’ claims. (App. 21a (“The

appellants point only to two months of data, but the

complete set of data that the state reviewed showed

an overall decline in hospitalizations and deaths since

the vaccine mandate was issued. The increases that

appellants point to also represent small numeric

shifts, not ‘dramatic’ increases: three deaths in July

2023 relative to eight deaths in August 2023, and

thirty-one hospitalized COVID-19 patients per day in

July 2023 relative to forty-four in August 2023.”).)

The First Circuit then held that the evidence was

insufficient to demonstrate that Respondents’

decision was litigation driven to evade constitutional

34

scrutiny. (App. 22a.) The First Circuit then criticized

Petitioners for not engaging in discovery on the

mootness questions (App. 9a)—although Petitioners

were never given that opportunity and the burden

indisputably rests on Respondents to demonstrate

that it was not litigation driven—not the other way

around.

The Second, Ninth, Eleventh, and D.C. Circuits

have reached similar conclusions to the First Circuit

below that a government entity may evade

constitutional review of its challenged COVID-19

vaccination mandate by rescinding it after it effects

had already been felt by the plaintiffs. E.g., Does 1-2

v. Hochul, 2024 WL 5182675 (2d Cir. Dec. 20, 2024)

(holding that New York’s rescission of the

discriminatory

scheme

permitting

medical

exemptions from compulsory COVID-19 vaccination

while prohibiting religious accommodations mooted

plaintiffs’ claims); Donovan v. Vance, 70 F.4th 1167

(9th Cir. 2023) (holding that the government’s

rescission of a COVID-19 vaccine mandate mooted

plaintiff’s claims despite the discriminatory process

still existing and not being rescinded); Navy Seal 1 v.

Austin, 2023 WL 2482927 (D.C. Cir. Mr. 10, 2023)

(holding that the Secretary of Defense’s rescission of

the COVID-19 vaccination mandate mooted the

servicemember plaintiffs’ claims, despite the fact that

the discriminatory process remained in place);

Regaldo v. Director, Ctr. For Disease Control, 2023

WL 239989 (11th Cir. Jan 18, 2023) (same).

35

B. The Fifth, Ninth, and Tenth Circuits have

held that the government’s rescission of a

Covid-19 vaccination mandate to escape

judicial scrutiny does not moot a

plaintiff’s constitutional claims.

The Ninth Circuit confronted a virtually identical

scenario in Health Freedom Defense Fund, Inc. v.

Carvalho, 104 F.4th 715 (9th Cir. 2024), but reached

a result directly contrary to the First Circuit below.

There, the government similarly engaged in

litigation-based revocation of a challenged COVID-19

vaccine mandate. As the Ninth Circuit noted, “For

over two years—until twelve days after argument—

Los Angeles Unified School District (LAUSD)

required

employees

to

get

the

COVID19 vaccination or lose their jobs. LAUSD has not

carried its “formidable burden” to show that it did not

abandon this policy because of litigation.” Id. at 719.

The Ninth Circuit “held oral argument . . . where

LAUSD’s counsel was vigorously questioned. The

same day LAUSD submitted a report recommending

rescission of the Policy. Twelve days later, LAUSD

withdrew the policy.” Id. at 723.

Respondents here likewise faced vigorous

questioning at the First Circuit’s oral argument in the

previous appeal and ultimately faced a reversal of the

dismissal. Lowe, 68 F.4th 706. And, just like

Respondents here, “LAUSD’s about-face occurred

only after vigorous questioning at argument in this

court, which suggests that it was motivated, at least

in part, by litigation tactics.” Health Freedom, 104

36

F.4th at 723. The Ninth Circuit held, “LAUSD’s

timing is suspect,” and that alone precludes a finding

of mootness. Id. The reason was simple: the

government’s suspicious timing for rescinding a

mandate that was kept in place up until the point it

would be scrutinized “can be interpreted as acting at

least partially in bad faith to avoid litigation risk.” Id.

at 724 (cleaned up). The same is true of Respondents’

suspicious and scientifically unsupported timing of

rescission here, but the First Circuit reached a result

directly in conflict with the Ninth Circuit’s decision in

Health Freedom Defense Fund.

Similarly, in Bacon v. Woodward, the Ninth

Circuit reached a conclusion that is also in direct

conflict with the First Circuit’s decision below. See

104 F.4th 744 (9th Cir. 2024). There, the Washington

Governor, similar to Maine’s Governor below, issued

a mandate that all state agency employees be

vaccinated against COVID-19. Id. at 747. Contrary to

the facially discriminatory mandate below,

Washington at least pretended to permit religious

accommodations, id., though they were not available

in practice. Id. A group of state firefighters and EMTs

sued, challenging the denial of their request for

religious accommodation. The district court denied

the request for injunctive relief, and the plaintiffs

appealed. Id. at 749. While the appeal was pending

but before the Ninth Circuit could adjudicate the

appeal, the Governor rescinded the mandate. Id. at

750. The Ninth Circuit held that such rescission was

not sufficient to moot the plaintiff’s claims.

37

Here, the firefighters filed the Complaint before

the Proclamation required them to get

vaccinated and thereby violate their religious

beliefs. Since then, some firefighters lost their

jobs because of the Proclamation. These factual

developments are relevant to our mootness

analysis, as the request for prospective relief

requires a return to the pre-termination status

quo between the firefighters and Spokane.

Thus, the last legally relevant relationship

between the parties is the firefighters’ gainful

employment for Spokane. The district court

could require Spokane to reinstate terminated

firefighters, and the claim for injunctive relief

thus remains live as well.

Id. (emphasis added). The same relief was available

to and requested by Petitioners below, but the First

Circuit held that it did not matter for justiciability

purposes. (App. 10a.) The First Circuit’s decision

below and the Ninth Circuit’s decision in Bacon

cannot be reconciled.

The Fifth Circuit’s decision in Crocker v. Austin,

115 F.4th 660 (5th Cir. 2024) is also directly contrary

to the First Circuit’s decision below. There, as

Petitioners did here (App. 91a, Compl. ¶120), the

plaintiffs’ complaint challenged the system of

compulsory vaccination and the failure of the system

to appropriately recognize requests for religious

accommodation. 115 F.4th at 667. During the

pendency of the plaintiffs’ claims, the Department of

Defense and the Air Force rescinded the mandate

compelling service members to receive the COVID-19

38

vaccine. Id. (“The Air Force has at least partially

redressed the harm Appellants suffered by rescinding

the vaccine mandate and correcting Appellants’

service records.”) After doing so, the government

contended that plaintiff’s claims were moot because

they were no longer subject to a mandate to receive

the COVID-19 vaccine. Id. The Fifth Circuit

disagreed.

The primary reason the Fifth Circuit held that the

plaintiffs’ claims were not moot was because the

allegedly unconstitutional accommodation process

remained in place—even though the mandate for the

COVID-19 vaccine had been rescinded. “[T]he district

court failed to consider Appellants’ broader, ongoing

claims concerning the Air Force’s alleged ‘sham’

religious exemption process and policies.” Id. at 668.

“We also hold that the claims of the six Appellants

still serving in the Air Force are not moot because

they plausibly allege an ongoing harm—that they

remain

subject

to

an

allegedly

unlawful

accommodations process.” Id. (emphasis added).

This is precisely what Petitioners’ alleged below,

which is that the system remains in place because the

Statute remains operative, despite the rescission of

Rule applying it to the COVID-19 vaccine. The First

Circuit’s decision below cannot be reconciled with the

Firth Circuit’s decision in Crocker.

The Fifth Circuit’s decision in Jackson v. Noem,

2025 WL 868167 (5th Cir. Mar. 20, 2025), is also in

direct conflict with the First Circuit’s decision below.

There, despite the United States rescinding the

39

mandate that Coast Guard members receive the

COVID-19 vaccine, the Fifth Circuit held that relief

could still be effectuated against the plaintiff’s

injuries. Id. at *2. The Fifth Circuit discussed the fact

that the plaintiffs were still subject to a

discriminatory process that had never been rescinded.

Id. In other words, the mandate was rescinded but the

discriminatory process that produced the denial of

religious accommodations under the vaccination

mandate remained alive and well. Id. (citing Crocker,

115 F.4th at 667-68). Because the process (or, as here,

the system) that resulted in the alleged injuries was

not rescinded, the Fifth Circuit held that the

plaintiffs’ claims were not moot. Id. Jackson is in

direct conflict with the First Circuit’s decision below.

The Tenth Circuit’s decision in Does 1-11 v. Board

of Regents of University of Colorado, 100 F.4th 1251

(10th Cir. 2024), is likewise in direct conflict with the

First Circuit’s decision below. There, the Tenth

Circuit noted that government claimed mootness

because it had rescinded its prior vaccination

mandate. Id. at 1263 (“The Administration contends

that the September 1 Policy is dead letter because it

was ‘rescinded and replaced’ with the September 24

Policy.”) Much like Respondents here, the

government contended that “there is no threat the

September 1 Policy will ever be enforced against any

plaintiff in the future.” Id. at 1264. The Tenth Circuit

rejected that contention because

the Administration’s denial of that exemption

has never been reconsidered under any

subsequent policy, a preliminary injunction

40

would require the Administration to revoke and

to re-examine its application of the September

1 Policy to Jane Doe 2. That relief would

necessarily

entail

revocation

of

the

Administration’s decision unlawfully to

terminate Jane Doe 2’s employment under the

September 1 Policy. Therefore, this Court

“could ... cause a real-world effect through a

favorable decision” for Jane Doe 2.

Id. In other words, despite the rescission of the

original mandate, the Tenth Circuit found that it

could still provide effectual relief to the plaintiffs. The

same is true here, but the First Circuit said that was

not enough to keep Petitioners’ claims justiciable. The

First Circuit’s decision below cannot be reconciled

with the Tenth Circuit’s decision in Does.

C. This Court’s precedents hold that a State

is not permitted to engage in litigationbased timing to avoid review of

challenged laws.

The First Circuit’s decision below is also in direct

conflict with this Court’s precedents. Knox v. Serv.

Emps. Int’l Union, Local 1000, 567 U.S. 298, 307

(2012) (“Such [post-litigation] maneuvers designed to

insulate a decision from review by this Court must be

viewed with a critical eye.”); McCreary County, Ky. v.

Am. Civil Liberties Union of Ky., 545 U.S. 844, 871

(2005). These decisions cannot be reconciled.

41

CONCLUSION

Because the First Circuit’s decision below directly

conflicts with this Court’s precedents and multiple

decisions of the Fifth, Ninth, and Tenth Circuits on a

question of exceptional importance, this Court should

grant the petition and resolve the conflicts.

Respectfully submitted,

Mathew D. Staver

Counsel of Record

Anita L. Staver

Liberty Counsel

109 Second St., NE

Washington, D.C. 20002

(202) 289-1776

Horatio G. Mihet

Daniel J. Schmid

Liberty Counsel

P.O. Box 540774

Orlando, FL 32854

(407) 875-1776

Counsel for Petitioners