The Sixth Circuit Court of Appeals rejected a U.S. Air Force request to end a federal district court’s preliminary injunction protecting Air Force members from the COVID-19 shot mandate. The Air Force petitioned to remove the injunction since the Department of Defense (DOD) has rescinded the mandate, but the Appeals Court decided the DOD’s elimination of the mandate was not enough to warrant dissolving the injunction.
Last November in Hunter Doster, et al. v. Hon Frank Kendall, et al., a three-judge panel of the Sixth Circuit unanimously upheld the federal district court’s decision to protect Air Force personnel from the COVID-19 shot mandate since both the mandate and the Air Force’s universal refusal to provide religious accommodations violated their religious freedom under the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA). However, the Air Force petitioned for a rehearing from the entire Sixth Circuit bench for the purpose of eliminating the lower court’s ruling. The Air Force challenged the necessity of the injunction since the National Defense Authorization Act (NDAA) signed on December 23, 2022 formally ended the mandate meaning service members are no longer required to take the shot, and therefore, no longer need religious accommodations.
Notably, the Air Force’s petition did circulate through the entire Sixth Circuit Court, and a majority of the court voted to keep the preliminary injunction reaffirming the court’s original decision. The ruling returns the case back to the lower court to determine whether the NDAA that eliminates the mandate makes the preliminary injunction moot.
In the court’s opinion, Judge Raymond Kethledge stated that even if the lower court determines the issue as moot – that the withdrawal of the mandate abates the plaintiff’s claims ending any need for court-ordered relief – vacating the injunction would be an “extraordinary” measure.
Judge Kethledge wrote, “That a party chooses to comply with our decision is hardly a reason to vacate it. Here, at Congress’s direction, the Air Force has rescinded the vaccine mandate at issue in this suit. The Air Force — by way of a petition for rehearing en banc — now seeks vacatur of our opinions upholding the district court’s preliminary injunctions. Vacatur of our opinions is not a “normal effect” of mootness but an “extraordinary” one…And 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.
All those actions, of course, occurred well after we issued our opinions here. Meanwhile, “[j]udicial precedents are presumptively correct and valuable to the legal community as a whole…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.”
Liberty Counsel Founder and Chairman Mat Staver said, “This decision upholds the religious freedom rights for all Air Force personnel. Like in the Doster v Kendall case, Liberty Counsel’s classwide injunction in Colonel Financial Management Officer, et. al., v Austin also stopped the Department of Defense from violating the rights of the Marines and now the mandate has been rescinded. Only a permanent injunction will stop the DOD from ordering another shot mandate in the future. We stand ready to defend our defenders of freedom if any religious discrimination occurs in the future.”
