Case: 23-30497 Document: 60-1 Page: 1 Date Filed: 09/23/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 23, 2024
No. 23-30497
____________ Lyle W. Cayce
Clerk
Faith Crocker; David J. Schadwinkel; Ian R. McHaley;
Christopher F. Duff; Byron O. Starks, Jr.; Wayne E.
Johnson; Mendell L. Potier,
Plaintiffs—Appellants,
versus
Lloyd Austin; United States Department of Defense;
Frank Kendall, III; Robert I. Miller; Richard W. Scobee,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:22-CV-757
______________________________
Before Southwick and Duncan, Circuit Judges, and Kernodle,
District Judge. *
Jeremy D. Kernodle, District Judge:
This appeal arises out of the Air Force’s COVID-19 vaccine mandate.
After the Air Force rescinded the mandate, the district court dismissed the
_____________________
*
United States District Judge for the Eastern District of Texas, sitting by
designation.
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case as moot. The district court also separately dismissed the claims of
Plaintiff-Appellant Byron O. Starks, Jr. for lack of standing because the Air
Force had separated him from service. Because the rescission did not redress
all of plaintiffs’ alleged harms and because Starks has standing, we
REVERSE and REMAND.
I.
On August 24, 2021, Secretary of Defense Lloyd Austin directed each
military branch to immediately begin full vaccination of all members of the
Armed Forces. Several days later, Secretary of the Air Force Frank Kendall
implemented the mandate, ordering Air Force commanders to take all steps
necessary to ensure all uniformed service members receive the COVID-19
vaccine. Failing to receive a vaccine would result in the initiation of
administrative discharge proceedings against the service member. The Air
Force allowed service members to request a religious exemption from the
vaccine mandate and appeal a denied request. If an appeal was denied, the
service member had five days to begin the COVID-19 vaccination before
initiation of discharge proceedings.
At the time of the mandate, each of the seven Plaintiff-Appellants
served on active- or reserve-duty in the Air Force. Each Appellant objected
to the vaccine mandate based on sincerely held religious beliefs and requested
a religious exemption. The Air Force denied all seven requests, and
Appellants unsuccessfully appealed the denials. In many cases, the Air Force
acknowledged the request was based on a sincerely held religious belief.
On March 20, 2022, Appellant Faith N. Crocker, a Senior Airman in
the Air Force Reserve, sued Secretaries Austin and Kendall, the Department
of Defense, and other Air Force officials (collectively, the “Air Force”) in
the Western District of Louisiana. Later, Appellants Christopher F. Duff, a
Lieutenant Colonel in the Air Force; Wayne E. Johnson, a Lieutenant
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Colonel in the Air Force Reserve; David J. Schadwinkel, a Major in the Air
Force Reserve; Ian R. McHaley, a Master Sergeant in the Air Force; Mendell
L. Potier, a Staff Sergent in the Air Force Reserve; and Byron O. Starks, Jr.,
an Airman First Class in the Air Force, joined the lawsuit. The amended
complaint alleged that “Defendants’ vaccination policies” violate
Appellants’ rights under the First Amendment, the Religious Freedom
Restoration Act (RFRA), and the Administrative Procedure Act. The
complaint sought a declaratory judgment that the vaccination policies are
unlawful and preliminary and permanent injunctions prohibiting the Air
Force from enforcing the policies.
At the time of the amended complaint, Starks was serving on active
duty. A month later, on June 23, 2022, the Air Force separated Starks from
the service. The Air Force argues that Starks was separated because of a
preexisting and disqualifying medical condition, not because of his refusal to
comply with the vaccine mandate. Starks, in turn, asserts that he was
separated for his failure to comply with the mandate and that the Air Force’s
stated reason for the separation is pretext.
The Air Force moved to dismiss Starks’s claims under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6), arguing that he lacked standing
post-separation and that he failed to exhaust his administrative remedies.
The district court granted the motion and dismissed Starks’s claims for lack
of standing “because he is no longer an active member of the Air Force” and
is no longer subject to the COVID-19 vaccine mandate. The district court
also agreed that Starks failed to exhaust his administrative remedies, applying
Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), which generally requires
service members to exhaust intraservice administrative remedies before
bringing a suit challenging a separation decision.
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In December 2022, Congress enacted the James M. Inhofe National
Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-236, 136
Stat. 2395 (2022) (“2023 NDAA”). Section 525 of the 2023 NDAA required
Secretary Austin to rescind the vaccine mandate. 136 Stat. at 2571–72. By
memorandum dated January 10, 2023, Secretary Austin stated that “[n]o
individuals currently serving in the Armed Forces shall be separated solely
on the basis of their refusal to receive the COVID-19 vaccine if they sought
an accommodation on religious . . . grounds.” Memorandum, Secretary of
Defense, Recission of the August 24, 2021 and November 30, 2021
Coronavirus Disease 2019 Vaccination Requirements for Members of the
Armed Forces (Jan. 10, 2023). Secretary Austin also directed military
departments to update the records of any service member who had been
subject to “any adverse actions solely associated with denials of such
requests” and to “cease any ongoing reviews of current Service member
religious . . . accommodation requests.”
Id. The memorandum further
stated that any service members who had been discharged solely because of a
refusal to receive the COVID-19 vaccine could “individually request a
correction to their personnel records.”
Id. The Air Force implemented the
recission over the following weeks. The Air Force also states that it has
removed any adverse actions related to the vaccine mandate from the records
of all Appellants (except Starks).
Thereafter, the Air Force moved to dismiss the claims of the
remaining Appellants, arguing that the 2023 NDAA’s recission mooted the
case. The district court granted the motion. The district court held that,
because the challenged vaccine mandate “simply does not exist anymore,”
“there is no axe left to fall.” Thus, “there is simply no impending threat to
[Appellants’] rights, and there is no live case or controversy for the Court to
act on.” The court also found that no exception to mootness applied.
This appeal followed.
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II.
We review de novo a district court’s “dismissal for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) or for failure to state a claim
pursuant to Rule 12(b)(6).” Ctr. for Biological Diversity, Inc. v. BP Am. Prod.
Co., 704 F.3d 413, 421 (5th Cir. 2013). “Legal questions relating to standing
and mootness are also reviewed de novo.”
Id.
As discussed above, the district court dismissed Appellants’ claims on
separate grounds. The district court determined that Starks—the only
Appellant no longer serving in the Air Force—lacked standing after his
separation and had failed to exhaust his administrative remedies. And it
found that the claims of the six Appellants still serving in the Air Force were
moot after the 2023 NDAA. The Court addresses each ground in turn.
A.
First, the dismissal of Airman First Class Byron O. Starks, Jr.
1. Standing
The district court held that Starks lacked standing to challenge the Air
Force’s COVID-19 vaccination mandate because he is no longer an active
service member. Starks, the court explained, “does not face an actual or
imminent injury” because as a discharged serviceman, “Starks is not subject
to the COVID-19 vaccine—even if the mandate were still in effect, it would
not apply to Starks.”
To establish standing, a plaintiff must plead and prove “an injury that
is ‘concrete, particularized, and actual or imminent; fairly traceable to the
challenged action; and redressable by a favorable ruling.’” Texas v. United
States, 809 F.3d 134, 150 (5th Cir. 2015) (quoting Clapper v. Amnesty Int’l
USA,
568 U.S. 398, 409 (2013)). “[W]hen considering whether a plaintiff
has Article III standing, a federal court must assume arguendo the merits of
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his or her legal claim.” N. Cypress Med. Ctr. Operating Co. v. Cigna
Healthcare, 781 F.3d 182, 191 (5th Cir. 2015) (quoting Cole v. Gen. Motors
Corp.,
484 F.3d 717, 723 (5th Cir. 2007)).
Here, Starks sufficiently alleged injuries. His complaint stated that he
faced “imminent involuntary administrative separation from the Air Force”
because of his refusal to receive the COVID-19 vaccine. The Air Force
discharged Starks less than a month after the amended complaint was filed.
And because his separation was characterized as “general”—rather than
honorable—he faces lasting harm, such as ineligibility for certain veteran
benefits, including the GI Bill. See, e.g., Lorance v. Commandant, U.S.
Disciplinary Barracks, 13 F.4th 1150, 1165 (10th Cir. 2021) (finding that a
habeas case was not mooted by a pardon where the petitioner still faced
collateral consequences including loss of military benefits); Gay Veterans
Ass’n v. Sec’y of Def.,
668 F. Supp. 11, 14 (D.D.C. 1987) (“[S]eparation from
the military accompanied by a less-than-honorable discharge characterization
hinders civilian employment opportunities, thereby infringing on
constitutionally protected liberty and property interests . . . .”).
The Air Force does not dispute Starks’s alleged injuries but argues
that they are “not consequences of the vaccination requirement.” The Air
Force contends that Starks “was discharged because he has a disqualifying
medical condition, unrelated to COVID-19 or COVID-19 vaccination.” But
on a motion to dismiss, we assume Starks’s well-pleaded factual allegations
are true. See Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). The Air
Force also argues that Starks failed to allege these harms in his separation
proceedings or include them in the amended complaint. Not so.
Starks made these alleged harms clear in his separation proceedings.
After Starks joined the lawsuit, his counsel sent a letter to the Air Force
“advis[ing] [it] not to take any negative personnel actions against Airman
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First Class Starks during the pendency of his complaint.” The letter also
explicitly warned against separation on pretext: “Specifically, we understand
the government is attempting to retaliate against Airman First Class Starks
with an involuntary administrative separation on the pretextual grounds of
erroneous enlistment.”
Likewise, as previously discussed, the complaint in this case alleged
that Starks “face[d] imminent involuntary administrative separation from
the Air Force and the loss of the opportunity to serve his nation in uniform”
because of his refusal to comply with the COVID-19 vaccination mandate.
And Starks was separated from the Air Force just weeks later.
Accordingly, because Starks has sufficiently alleged injuries fairly
traceable to the challenged actions of the Air Force, he has standing to bring
his claims.
2. Exhaustion
The district court “[a]lternatively” dismissed Starks’s claims because
he failed to exhaust his administrative remedies. The court applied Mindes,
which requires military plaintiffs to first exhaust intraservice administrative
remedies before bringing a suit challenging a separation decision. We now
clarify that RFRA claims are not subject to the Mindes exhaustion
requirement.
Mindes held that “a court should not review internal military affairs in
the absence of (a) an allegation of the deprivation of a constitutional right, or
an allegation that the military has acted in violation of applicable statutes or
its own regulations, and (b) exhaustion of available intraservice corrective
measures.” 453 F.2d at 201. Mindes based this judge-made rule on “a
judicial policy akin to comity,” expressing concerns that “courts would be
inundated with servicemen’s complaints should the doors of reviewability be
opened” and that “such review might stultify the military in the performance
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of its vital mission.” Id. at 199. Mindes has since faced significant criticism,
including that it undermines civilian oversight of the military—a vital
component of our constitutional order. See, e.g., 13C Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3534.1 n.80 (3d ed. June
2024 update) (“[T]here is nothing in the power of Congress to make rules
for the government and regulation of the land and naval forces, nor in the
powers of the President as commander in chief, that ousts the power of the
courts to protect the constitutional rights of individuals against improper
military actions.”); Lindsay Lyon Rodman, Doing Away with the Military
Deference Doctrine: Applying Lessons from Civil-Military Relations Theory to the
Supreme Court,
99 N.D. L. Rev. 327, 372 (2024) (arguing that Mindes
undermines civilian control of the military).
We have previously questioned whether RFRA claims are subject to
Mindes. In U.S. Navy Seals 1-26 v. Biden (“Navy Seals I”), we explained that
“Mindes abstention is rooted in the federal common law principle of
‘comity,’” and noted that “it is likely that, following RFRA’s enactment,
abstention based on the Mindes test is no longer permissible.” 27 F.4th 336,
346 (5th Cir. 2022). Several months after Navy Seals I, the Sixth Circuit
squarely held that service members need not exhaust administrative
remedies before bringing RFRA claims, pointing to “RFRA’s text, structure,
and context.” Doster v. Kendall,
54 F.4th 398, 410–15 (6th Cir. 2022), vacated
as moot,
144 S. Ct. 481 (Mem.) (2023). See also Schelske v. Austin,
649 F.
Supp. 3d 254, 272 (N.D. Tex. 2022); Colonel Fin. Mgmt. Officer v. Austin,
622
F. Supp. 3d 1187, 1202 (M.D. Fla. 2022). The Supreme Court later vacated
Doster as moot in light of the 2023 NDAA but did not comment on the Sixth
Circuit’s exhaustion analysis. See 144 S. Ct. at 481.
We likewise now hold that Mindes abstention does not apply to claims
brought under RFRA. “Congress enacted RFRA in 1993 in order to provide
very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores,
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Inc., 573 U.S. 682, 693 (2014). Indeed, “[b]y enacting RFRA, Congress went
far beyond what this Court has held is constitutionally required” by the First
Amendment.
Id. at 706. “RFRA ‘operates as a kind of super statute,
displacing the normal operation of other federal laws.’” Navy Seals I,
27
F.4th at 346 (quoting Bostock v. Clayton Cnty.,
590 U.S. 644, 682 (2020)); see
also Korte v. Sebelius,
735 F.3d 654, 673 (7th Cir. 2013) (“RFRA is structured
as a ‘sweeping “super-statute,” cutting across all other federal statutes (now
and future, unless specifically exempted) and modifying their reach.’”
(quoting Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom
and the U.S. Code,
56 Mont. L. Rev. 249, 253 (1995))). RFRA thus
“displace[s] a judge-created abstention doctrine” like Mindes. Navy Seals I,
27 F.4th at 346; see also Doster, 54 F.4th at 413 (“Because the Plaintiffs’
claims arise from this statutory source [RFRA], we may not adopt commonlaw abstention rules as if we were regulating a court-created claim.”). Further,
“when Congress imposed procedural limits on RFRA or related statutes, it
did so expressly.” Doster, 54 F.4th at 414. The Religious Land Use and
Institutionalized Persons Act, a statute related to RFRA, expressly
incorporated a prisoner-exhaustion rule from other federal laws. See id.
(citing 42 U.S.C. § 2000cc-2(e)). We should not read a military-exhaustion
requirement into RFRA’s text where none exists. See id.
In sum, Congress created in RFRA a cause of action for service
members to vindicate their religious liberty rights. See Navy Seals I, 27 F.4th
at 345–46 (stating that RFRA applies to the military). We will not defeat that
statutory cause of action with a judge-made abstention doctrine. To do so
would be to shirk our “virtually unflagging obligation . . . to exercise the
jurisdiction given [to us].” Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976). Starks may therefore proceed with his
RFRA claim without first exhausting his intraservice administrative
remedies.
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B.
We next consider whether the claims of the six still-serving Appellants
are moot.
“Mootness is a jurisdictional question” that goes to the heart of
Article III’s case-and-controversy requirement. Abbott v. Biden, 70 F.4th
817, 824 (5th Cir. 2023); see also FBI v. Fikre,
601 U.S. 234, 240–41 (2024).
“The mootness doctrine . . . requires that a plaintiff’s interest in a suit ‘exist[]
throughout the proceedings.’” Abbott,
70 F.4th at 824 (quoting Uzuegbunam
v. Preczewski,
592 U.S. 279, 282 (2021)). “[A] case becomes moot ‘when it
is impossible for a court to grant “any effectual relief whatever to the
prevailing party.”’”
Id. (quoting Knox v. Serv. Emps. Int’l Union, Local 1000,
567 U.S. 298, 307 (2012)). Thus, when “a complaining party manages to
secure outside of litigation all the relief he might have won in it,” the case is
moot. Fikre,
601 U.S. at 240.
The Air Force has at least partially redressed the harm Appellants
suffered by rescinding the vaccine mandate and correcting Appellants’
service records. Appellants, however, allege that they suffer ongoing harm
by being subject to a “sham religious accommodation process for
vaccinations” employed by the Air Force. Appellants argue that the Air
Force has “implemented an accommodation request process that is intended
to deny all, or virtually all, religious exemptions from the vaccine mandate.”
They further argue that the process
permits the Air Force to forego individualized assessment and
to satisfy the compelling interest requirement through generic
determinations . . . uses boilerplate statements to suffice for
demonstrating that the Air Force’s action[s] were the least
restrictive means . . . permits the Air Force to discriminate
against airmen who submit a request and to apply coercive
tactics in order to pressure the servicemember to forego their
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beliefs . . . [and] permits Air Force leadership to dictate denial
of all requests, no matter the individual circumstances of the
request.
Indeed, the amended complaint sought relief from “Defendants’ vaccination
policies”—not merely the COVID-19 vaccine mandate. An entire section of
the amended complaint criticizes the Air Force’s religious exemption policy.
And at oral argument, Appellants’ counsel reiterated that Appellants fear
they will be harmed when seeking religious accommodations from other
vaccine requirements in the future. Appellants have thus plausibly alleged
that the Air Force continues to employ an illegal process for religious
accommodations and that they will again be injured by it. Thus, they have
not “manage[d] to secure outside of litigation all the relief [they] might have
won in it.” Fikre, 601 U.S. at 240.
The Air Force relies heavily on our decision in U.S. Navy Seals 1-26 v.
Biden (“Navy Seals II”), 72 F.4th 666 (5th Cir. 2023). In that case, members
of Naval Special Warfare Command units sued the Navy, alleging that its
failure to accommodate their religious objections to the COVID-19 vaccine
mandate violated the First Amendment and RFRA.
Id. at 670. The district
court entered a preliminary injunction prohibiting the Navy from enforcing
the vaccine mandate or taking adverse actions against the plaintiffs.
Id. The
Navy appealed the preliminary injunction.
Id. at 670–71. While the appeal
was pending, the Navy rescinded the mandate and removed all adverse
actions pursuant to the 2023 NDAA.
Id. at 671. We held that the
preliminary-injunction appeal was moot because the recission gave the
plaintiffs “‘the precise relief’ provided by the preliminary injunctions,
leaving us ‘unable to provide relief beyond what [the Navy] already gave.’”
Id. at 673 (alteration in original) (quoting Franciscan All., Inc. v. Becerra,
47
F.4th 368, 375 (5th Cir. 2022)).
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The Air Force argues that Navy Seals II controls here. But the Air
Force misreads our opinion. We held only that the 2023 NDAA mooted the
preliminary-injunction appeal, not the entire case. See id. In fact, we stated
that the “mootness of this interlocutory appeal does not prevent the district
court from ruling on any of Plaintiffs’ claims that remain justiciable,” and we
remanded the case for further proceedings.
Id. at 675–76; see also id. at 676
(“[T]his interlocutory appeal is moot because the Navy’s vaccine policies
challenged here have been rescinded . . . . That does not end the litigation,
however.”). On remand, the district court determined that the plaintiffs’
“claims arising out of the [Navy’s] broader vaccine accommodations policy
may proceed.” U.S. Navy Seals 1-26 v. Austin, No. 4:21-cv-01236-O, slip op.
at 1–2 (N.D. Tex. Feb. 14, 2024). The plaintiffs had alleged “that their
underlying harms derive from the lack of a proper religious accommodation
process,” took “issue with ‘Defendants’ policies and practices’ rather than
just the [COVID-19 vaccine mandate],” and expressed “hesitance to use the
accommodations process going forward” because “Defendants have
announced no changes to [the Navy’s] overarching religious
accommodations process.” Id. at 7–9. Thus, the district court found that
this “tangible policy . . . that the Court can still enjoin or declare unlawful”
was “enough to keep this case alive.” Id. at 12.
So too here. Although this case appeals a final judgment rather than a
preliminary injunction, Appellants assert nearly identical allegations of
discrimination arising from the Air Force’s broader vaccination policy and
religious accommodations process. The district court correctly determined
that Appellants’ claims relating specifically to the rescinded COVID-19
vaccine mandate and its direct consequences are moot. But the district court
failed to consider Appellants’ broader, ongoing claims concerning the Air
Force’s alleged “sham” religious exemption process and policies. “What
matters is not whether a defendant repudiates its past actions, but what
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repudiation can prove about its future conduct.” Fikre, 601 U.S. at 244. The
Air Force’s recission of the vaccine mandate and removal of adverse actions
does not ensure that it will not discriminate against Appellants in the future.
The case is therefore not moot.
III.
In sum, we hold that Starks has standing to challenge his discharge and
need not exhaust his administrative remedies before bringing this suit. 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.
We therefore REVERSE and REMAND for further proceedings in
accordance with this opinion.
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