Last fall, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit upheld a district court preliminary injunction that barred the U.S. Air Force from requiring religious objectors to receive COVID-19 vaccinations.
As I noted at the time, it appeared that the Air Force’s attorneys had not fully considered how it should respond to Religious Freedom Restoration Act (RFRA) claims in this context.
The Air Force has since rescinded the vaccination requirement, and has now asked for panel rehearing or rehearing en banc for the purpose of vacating the panel decision and lower court injunction. No dice said the Sixth Circuit. . . .
. . . . Judge Kethledge issued a brief statement concurring in the denial of en banc review, joined by Judges Thapar, Bush, and Murphy. It reads:
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 Here, at Congress’s direction, the Air Force has rescinded the vaccine mandate at issue in this suit.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. U.S. Bancorp M ortg. Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994). 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. See generally id. at 25.
All those action s, 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.” Id. at 26. In this case, our opinions will stand as a caution against violating the Free Exercise rights of men and women in uniform — which, by all appearances, is what the Air Force did here.
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