Back to Square One: Supreme Court Tosses Cases Challenging Federal COVID Vaccine Mandates

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The U.S. Supreme Court threw out three cases challenging the Biden administration’s now-defunct COVID-19 vaccine mandate based on the argument that the cases are moot because the mandates were rescinded. The move prevents the lower court decisions from standing as precedent, and critics say it leaves the door open for future mandates.

‘Back to Square One’: Supreme Court Tosses Cases Challenging Federal COVID Vaccine Mandates

The U.S. Supreme Court on Monday threw out three cases challenging the Biden administration’s now-defunct COVID-19 vaccine mandate for executive branch employees and military service members.

The lower courts had reached conflicting decisions about the mandates in the three cases. However, before the Supreme Court heard them, the mandates were rescinded.

Rather than deciding the cases on their merits, the Supreme Court remanded the cases back to the lower courts with instructions to dismiss the cases as “moot.” In this instance, “moot” refers to a case involving an issue (COVID-19 vaccine mandates) that did exist, but was resolved by some means other than the court ruling in favor of one side or the other.

Once a case is declared moot, the lower court’s decision can no longer be used to set a precedent for future cases — which in this case opens the door for future vaccine mandates, Children’s Health Defense (CHD) staff attorney Ray Flores told The Defender.

“Erasing a ruling erases case precedent,” Flores said. “When the next mandates come, and they will, it’s back to square one.”

Marcus Thornton, president of Feds for Freedom, a plaintiff in one of the cases, said in a statement:

“We believe the United States Constitution clearly does not permit the federal government to force federal workers — or any law-abiding citizen — to inject their bodies with something against their will. In fact, the freedom to control your own body and your own medical information is so basic that, without those liberties, it is impossible to truly be ‘free’ at all.

“We are disappointed that the Supreme Court dodged these important constitutional arguments and instead chose to vacate our case on technicalities.”

Sujata Gibson, a civil rights attorney representing plaintiffs in several New York cases challenging COVID-19 vaccine mandates, told The Defender:

“In federal and state courts, the government strategy has largely been to try to moot problematic vaccine rulings, and vacate the lower court rulings, in what appears to be open gamesmanship. It is disappointing that the Supreme Court issued these rulings yesterday, as this will only encourage that tactic going forward.”

Leslie Manookian, president and founder of the Health Freedom Defense Fund, which is also suing the Biden administration over the federal mandates, said the ruling marked a “dark day” for the country. She added:

“One of SCOTUS’ [Supreme Court of the United States] jobs is to reconcile conflicting rulings from the circuit courts. What they’ve done here is to cravenly abdicate their responsibilities — and pave the way for this to happen again.

“The onus is now on the little guys to spend all the time and energy to raise the money to mount a new lawsuit to challenge a new order should one arise, when SCOTUS could have and should have adjudicated this issue and settled it once and for all.”

The three cases decided in Monday’s ruling

Feds for Freedom — a nonprofit representing more than 8,500 federal workers — sued the Biden administration and several federal agencies in December 2021 after Biden introduced Executive Order 14043 in September 2021.

That order required more than 3.5 million federal executive branch workers to undergo COVID-19 vaccination unless they secured approved medical or religious exemptions.

The 5th Circuit U.S. Court of Appeals in March upheld a preliminary injunction in that case, issued in January 2022 by a federal judge. The 5th Circuit ruled that the federal courts — and not an administrative venue like the Merit Systems Protection Board (MSPB), as the administration alleged — had jurisdiction over the case

The court ruled the mandate should be suspended as the case proceeded through the courts.

In a second case challenging the federal employee mandate, Navy civilian employee Jason Payne alleged the vaccine mandate was unconstitutional and exceeded the administration’s authority.

The U.S. Court of Appeals for the District of Columbia Circuit came to the opposite decision in that case, ruling in March that the MSPB and not the courts had jurisdiction over the case.

The Biden administration in May rescinded the vaccine mandate along with the COVID-19 public health emergency. The mandates had “saved millions of lives” it claimed in a press release, but “we are now in a different phase of our response when these measures are no longer necessary.”

The administration argued that the cases are no longer relevant because it revoked the mandate.

In the third case, the 6th Circuit U.S. Court of Appeals in December 2022 unanimously ruled that the U.S. Air Force had wrongly denied the requests of over 10,000 unvaccinated Air Force members who requested a religious exemption. The court ordered the Air Force to stop all disciplinary action against them.

In that decision, the court held that the Air Force had a “uniform policy” of denying religious exemptions to anyone who wanted to remain in the service.

Defense Secretary Lloyd Austin on Aug. 24, 2021, had mandated members of the U.S. military get the COVID-19 vaccine.

However, in late 2022, in response to significant pushback against the mandate, Congress passed the 2023 National Defense Authorization Act, which required Austin to rescind the mandate. He did so on Jan. 10, 2023.

There are several class action cases pending aimed at granting relief to the thousands of unvaccinated active duty, reserve and Air National Guard, Air Force and Space Force members who submitted a religious exemption to the Pentagon’s COVID-19 vaccine mandate and were denied or are awaiting a decision.

The U.S. military could owe billions in back pay and legal fees.

In all three cases in which the Supreme Court ruled on Monday, the administration urged the justices to set aside the lower court’s decisions under the so-called Munsingwear doctrine, where a case becomes moot while it is pending review by a higher court.

Feds for Freedom and the Air Force members suing the administration disagreed.

Feds for Freedom argued that the lower court victory should stand as a “warning to the future” against government overreach during emergencies, the Wall Street Journal reported.

The administration was asking the Supreme Court to endorse their “heads we win, tails you get vacated” strategy in proposing an untenable use of Munsingwear, attorneys for the Air Force plaintiffs wrote in their brief to the court.

That would allow the administration to “litigate to the hilt in both district and circuit court and — only if they lose — then decline to seek substantive review from this Court and instead moot the case and ask this Court to erase the circuit court loss from the books,” attorneys for Feds for Freedom concurred in their brief.

They can basically “send the whole thing down the memory hole like it never happened,” said Trent McCotter, a partner at Boyden Gray representing Feds for Freedom.

“it should be noted that the so-called ‘Munsingwear doctrine’ cannot be applied if there are damages at stake. So, this decision should not impact any plaintiffs who are seeking to recover lost wages or recover for other concrete harms,” Gibson noted.

Only liberal Associate Justice Ketanji Brown Jackson dissented from the court’s decision to wipe away the lower court rulings. “In my view, the party seeking vacatur [to vacate the ruling] has not established equitable entitlement to that remedy,” she wrote about both the Feds for Medical Freedom case and the case against the U.S. Air Force.

‘When the next mandate comes, it’s back to square one’

The administration said in its filings that it revoked the order because the pandemic was waning, “not [in] any effort to evade judicial review or gain litigation advantage.”

“The president ‘could not reasonably be expected’ to reinstate EO 14,043,” the administration said because a large majority of federal employees were already vaccinated.

It wrote:

“If the COVID-19 pandemic were to reenter an acute phase … any policies adopted in response to those developments would be based on and responsive to those new circumstances.

“Likewise, any future challenge to those hypothetical policies would have to take into account the circumstances justifying them. At this time, no reasonable prospect exists that the government will resume enforcing the same policy challenged here.”

That means if the administration were to put a mandate in place, it would be a new mandate, not a re-invocation of the previous order.

Feds for Freedom plans to continue to pursue justice related to vaccine issues in the federal court system, it said in a statement.

“Earlier this year, Feds For Freedom filed new suits in federal court for violations of our members’ rights under Title Vll of the Civil Rights Act, the Religious Freedom Restoration Act, and the U.S. Constitution. We will be fighting for justice for those whom the vaccine has injured. Many in the government overstepped their legal bounds, and we are going to hold them accountable,” it wrote.