Sixth Circuit Refuses to Vacate Opinion on Air Drive Covid Vaccine Requirement


Final fall, a unanimous panel of the U.S. Court docket of Appeals for the Sixth Circuit upheld a district court docket preliminary injunction that barred the U.S. Air Drive from requiring spiritual objectors to obtain COVID-19 vaccinations. As I famous on the time, it appeared that the Air Drive’s attorneys had not totally thought of the way it ought to reply to Non secular Freedom Restoration Act (RFRA) claims on this context.

The Air Drive has since rescinded the vaccination requirement, and has now requested for panel rehearing or rehearing en banc  for the aim of vacating the panel choice and decrease court docket injunction. No cube mentioned the Sixth Circuit.

In a temporary order issued at present in Doster v. Kendall, the Sixth Circuit rejected the petition. It reads:

The court docket obtained a petition for panel rehearing and for rehearing en banc. The petition didn’t search evaluate of the problems that the panel’s opinion determined. Relatively, it sought vacatur of the opinion and of the district court docket’s preliminary injunctions on the bottom that occasions postdating the opinion have now mooted the attraction and the preliminary injunctions. The unique panel has reviewed the petition for panel rehearing and has concluded that the district court docket ought to evaluate this mootness query within the first occasion. It has additionally concluded that, even when the preliminary injunctions have been now moot, that reality wouldn’t present a foundation for the “extraordinary treatment of vacatur” of the panel’s opinion. U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994). The petition then was circulated to the complete court docket. Lower than a majority of the judges voted in favor of rehearing en banc.

Due to this fact, the petition is denied.

Decide Kethledge issued a short assertion concurring within the denial of en banc evaluate, joined by Judges Thapar, Bush, and Murphy. It reads:

{That a} occasion chooses to adjust to our choice is hardly a motive to vacate it. Right here, at Congress’s route, the Air Drive has rescinded the vaccine mandate at concern on this go well with. The Air Drive — by means of a petition for rehearing en banc — now seeks vacatur of our opinions upholding the district court docket’s preliminary injunctions. Vacatur of our opinions just isn’t a “regular impact” of mootness however an “extraordinary” one. U.S. Bancorp M ortg. Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994). And the Air Drive has not even tried to clarify why it’s entitled to vacatur when the putative mootness right here arose from the federal government’s personal actions. See typically id. at 25.

All these motion s, after all, occurred properly after we issued our opinions right here. In the meantime, “[j]udicial precedents are presumptively right and useful to the authorized neighborhood as an entire.” Id. at 26. On this case, our opinions will stand as a warning in opposition to violating the Free Train rights of women and men in uniform — which, by all appearances, is what the Air Drive did right here.

Decide Moore issued a press release dissenting from the denial of en banc evaluate, joined by Judges Clay and Stranch. It reads:

The problem on this case is whether or not the Air Drive’s administration of its COVID-19 vaccine mandate violated sure of its servicemembers’ spiritual rights. After a panel of this court docket affirmed the district court docket’s judgment preliminarily enjoining the Air Drive from implementing its vaccine mandate—however earlier than the case was returned to the district court docket—Congress enacted the James M. Inhofe Nationwide Protection Authorization Act for Fiscal Yr 2023 (“NDAA”), which ordered the Secretary of Protection to rescind the navy’s COVID-19 vaccine mandate. Pub. L. No. 117-263, § 525, 136 Stat. 2395, 2571–72 (2022). Twelve federal appellate judges on three courts of appeals have unanimously concluded that the NDAA and the navy’s implementation of that laws mooted comparable preliminary-injunction appeals. See Roth v. Austin, 62 F.4th 1114, 1119 (eighth Cir. 2023); Dunn v. Austin, No. 22-15286, 2023 WL 2319316, at *1 (ninth Cir. Feb. 27, 2023) (order); Quick v. Berger, No. 22-15755, 2023 WL 2258384, at *1 (ninth Cir. Feb. 24, 2023) (order); Navy Seal 1 v. Austin, No. 22-5114, 2023 WL 2482927, at *1 (D.C. Cir. Mar. 10, 2023) (per curiam). My evaluate of those choices and the document on this case leads me to the identical conclusion. I might subsequently grant the petition for rehearing en banc, which might have the traditional impact of vacating the panel’s opinion, and maintain that Congress’s motion mooted the pending appeals of the district court docket’s preliminary-injunction orders.



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