Hunter Doster v. Frank Kendall

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0076p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HUNTER DOSTER; JASON ANDERSON; MCKENNA
COLANTANIO; PAUL CLEMENT; JOE DILLS; BENJAMIN
LEIBY; BRETT MARTIN; CONNOR MCCORMICK; HEIDI
MOSHER; PETER NORRIS; PATRICK POTTINGER; ALEX
RAMSPERGER; BENJAMIN RINALDI; DOUGLAS RUYLE;
CHRISTOPHER SCHULDES; EDWARD STAPANON III;
ADAM THERIAULT; DANIEL REINEKE,
Plaintiffs-Appellees,
v.
FRANK KENDALL, in his official capacity as Secretary
of the Air Force; ROBERT I. MILLER, in his official
capacity as Surgeon General of the Air Force;
MARSHALL B. WEBB, in his official capacity as
Commander, Air Education and Training Command;
RICHARD W. SCOBEE, in his official capacity as
Commander, Air Force Reserve Command; JAMES C.
SLIFE, in his official capacity as Commander, Air
Force Special Operations Command; UNITED STATES
OF AMERICA,
Defendants-Appellants.
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Nos. 22-3497/3702
On Petition for Rehearing En Banc.
United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:22-cv-00084—Matthew W. McFarland, District Judge.
Decided and Filed: April 17, 2023
Before: KETHLEDGE, BUSH, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR REHEARING EN BANC: Casen B. Ross, Charles W. Scarborough,
Daniel Winik, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
>

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Nos. 22-3497/3702 Doster, et al. v. Kendall, et al. Page 2
Appellants. ON RESPONSE: CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills,
Kentucky, Aaron Siri, Elizabeth A. Brehm, Wendy Cox, SIRI AND GLIMSTAD LLP, New York,
New York, Thomas B. Bruns, BRUNS CONNELL VOLLMAR & ARMSTRONG, Cincinnati,
Ohio, for Appellees. ON BRIEF: Stephen M. Crampton, THOMAS MORE SOCIETY, Tupelo,
Mississippi, in pro. per. as amicus curiae.
The court issued an order denying the petition for rehearing en banc. KETHLEDGE, J.
(pg. 3), delivered a separate statement, in which THAPAR, BUSH, and MURPHY, JJ., joined,
concurring in the denial of the petition for rehearing en banc. MOORE, J. (pg. 4), delivered a
separate statement, in which CLAY and STRANCH, JJ., joined, dissenting from the denial of the
petition for rehearing en banc.
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ORDER
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The court received a petition for panel rehearing and for rehearing en banc. The petition
did not seek review of the issues that the panel’s opinion decided. Rather, it sought vacatur of the
opinion and of the district court’s preliminary injunctions on the ground that events postdating the
opinion have now mooted the appeal and the preliminary injunctions. The original panel has
reviewed the petition for panel rehearing and has concluded that the district court should review
this mootness question in the first instance. It has also concluded that, even if the preliminary
injunctions were now moot, that fact would not provide a basis for the “extraordinary remedy 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 full court. Less than a majority of the judges voted
in favor of rehearing en banc.
Therefore, the petition is denied.

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Nos. 22-3497/3702 Doster, et al. v. Kendall, et al. Page 3
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STATEMENT
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KETHLEDGE, Circuit Judge, concurring in the denial of rehearing en banc. 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 Mortg. 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 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.”
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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Nos. 22-3497/3702 Doster, et al. v. Kendall, et al. Page 4
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STATEMENT
_________________
KAREN NELSON MOORE, Circuit Judge, dissenting from the denial of rehearing en
banc. The issue in this case is whether the Air Force’s administration of its COVID-19 vaccine
mandate violated certain of its servicemembers’ religious rights. After a panel of this court
affirmed the district court’s judgment preliminarily enjoining the Air Force from enforcing its
vaccine mandate—but before the case was returned to the district court—Congress enacted the
James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (“NDAA”), which
ordered the Secretary of Defense to rescind the military’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 military’s implementation
of that legislation mooted similar preliminary-injunction appeals. See Roth v. Austin, 62 F.4th
1114, 1119 (8th Cir. 2023); Dunn v. Austin, No. 22-15286, 2023 WL 2319316, at *1 (9th Cir. Feb.
27, 2023) (order); Short v. Berger, No. 22-15755, 2023 WL 2258384, at *1 (9th 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 review of these decisions and the record in this case leads me to the same
conclusion. I would therefore grant the petition for rehearing en banc, which would have the
normal effect of vacating the panel’s opinion, and hold that Congress’s action mooted the pending
appeals of the district court’s preliminary-injunction orders.
ENTERED BY ORDER OF THE COURT
___________________________________
Deborah S. Hunt, Clerk

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