No. 23-717
`In the Supreme Court of the United States
`
`ISRAEL ALVARADO, ET AL., PETITIONERS
`
`
`
`v.
`
`LLOYD J. AUSTIN, III, SECRETARY OF DEFENSE, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`BRIEF FOR THE RESPONDENTS IN OPPOSITION
`
`
`
` ELIZABETH B. PRELOGAR
`Solicitor General
`Counsel of Record
`BRIAN M. BOYNTON
`Principal Deputy Assistant
`Attorney General
`CHARLES SCARBOROUGH
`SARAH CLARK
`Attorneys
`
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`ISRAEL ALVARADO, ET AL., PETITIONERS
`
`
`
`v.
`
`LLOYD J. AUSTIN, III, SECRETARY OF DEFENSE, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`BRIEF FOR THE RESPONDENTS IN OPPOSITION
`
`
`
` ELIZABETH B. PRELOGAR
`Solicitor General
`Counsel of Record
`BRIAN M. BOYNTON
`Principal Deputy Assistant
`Attorney General
`CHARLES SCARBOROUGH
`SARAH CLARK
`Attorneys
`
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`
`QUESTION PRESENTED
`
`In 2021, the Secretary of Defense ordered all mili-
`tary servicemembers to be vaccinated against COVID-
`19. Petitioners brought this action to challenge the mil-
`itary’s COVID-19 vaccination requirement on various
`grounds, and the district court dismissed their com-
`plaint. After the dismissal, Congress passed legislation
`directing the Secretary to rescind the COVID-19 vac-
`cination requirement that petitioners had challenged.
`Petitioners then moved for reconsideration of the dis-
`missal of their complaint, which the district court de-
`nied, and petitioners appealed. In light of the rescission
`of the challenged vaccination requirement, the court of
`appeals dismissed petitioners’ appeal as moot, vacated
`the district court’s orders, and remanded with instruc-
`tions to dismiss the complaint on mootness grounds pur-
`suant to United States v. Munsingwear, Inc., 340 U.S.
`36 (1950). The question presented is as follows:
`Whether the court of appeals correctly determined
`that petitioners’ challenge to the military’s now-rescinded
`COVID-19 vaccination requirement is moot.
`
`
`(I)
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`Opinions below .............................................................................. 1
`Jurisdiction .................................................................................... 1
`Statement ...................................................................................... 2
`Argument ....................................................................................... 8
`Conclusion ................................................................................... 20
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`
`
`Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) .................. 10
`Arizonans for Official English v. Arizona,
`520 U.S. 43 (1997) ............................................................... 10
`Austin v. U.S. Navy SEALs 1-26,
`142 S. Ct. 1301 (2022) ......................................................... 16
`Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 20
`Doster v. Kendall, No. 22-cv-84,
`2022 WL 2974733 (S.D. Ohio July 27, 2022), aff ’d,
`54 F.4th 398 (6th Cir. 2022) ................................................. 4
`Dunn v. Austin, No. 22-15286,
`2023 WL 2319316 (9th Cir. Feb. 27, 2023) ........................ 17
`Gilligan v. Morgan, 413 U.S. 1 (1973) ................................. 13
`Kendall v. Doster, 144 S. Ct. 481 (2023) ................ 4, 9, 15, 16
`Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) ................. 5
`Navy Seal 1 v. Austin, No. 22-5114,
`2023 WL 2482927 (D.C. Cir. Mar. 10, 2023),
`cert. denied, 144 S. Ct. 97 (2023) ....................................... 17
`Orloff v. Willoughby, 345 U.S. 83 (1953) ............................. 13
`Robert v. Austin, 72 F.4th 1160 (10th Cir. 2023),
`cert. denied, 144 S. Ct. 573 (2024) ..................................... 17
`Roth v. Austin, 62 F.4th 1114 (8th Cir. 2023) ..................... 17
`Short v. Berger, No. 22-15755,
`2023 WL 2258384 (9th Cir. Feb. 24, 2023) ........................ 17
`
`(III)
`
`
`
`IV
`
`Cases—Continued:
`
`Page
`
`Tanvir v. Tanzin, 894 F.2d 449 (2d Cir. 2018),
`aff ’d, 141 S. Ct. 486 (2020) .................................................. 14
`Tanzin v. Tanvir, 141 S. Ct. 486 (2020) .............................. 14
`U.S. Navy SEALs 1-26 v. Austin,
`594 F. Supp. 3d 767 (N.D. Tex. 2022), appeal
`dismissed as moot, 72 F.4th 666 (5th Cir. 2023) ................ 4
`U.S. Navy SEALs 1-26 v. Biden,
`72 F.4th 666 (5th Cir. 2023) ................................... 13, 16, 17
`United States Dep’t of Justice v. Provenzano,
`469 U.S. 14 (1984) ............................................................... 11
`United States Dep’t of the Treasury v. Galioto,
`477 U.S. 556 (1986).............................................................. 10
`United States v. Microsoft Corp.,
`138 S. Ct. 1186 (2018) ......................................................... 10
`United States v. Munsingwear, Inc.,
`340 U.S. 36 (1950) ....................................................... 4, 8, 16
`United States v. Sanchez-Gomez,
`584 U.S. 381 (2018).................................................. 10, 14, 15
`Williams v. Wilson, 762 F.2d 357 (4th Cir. 1985) ................ 5
`
`Constitution and statutes:
`U.S. Const.:
`Art. III ........................................................................ 10, 19
`§ 2, Cl. 1 ...................................................................... 10
`James M. Inhofe National Defense Authorization Act
`for Fiscal Year 2023, Pub. L. No. 117-263,
`136 Stat. 2395 ........................................................................ 5
`§ 525, 136 Stat. 2571-2572 ........................................... 5, 11
`National Defense Authorization Act for Fiscal Year
`2013, Pub. L. No. 112-239, Tit. V, 126 Stat. 1712:
`§ 533, 126 Stat. 1727 .......................................................... 4
`§ 533(b)(1), 126 Stat. 1727 ................................................. 4
`
`
`
`
`
`V
`
`Statutes and rule—Continued:
`
`Page
`
`§ 533(b)(2), 126 Stat. 1727 ................................................. 4
`Religious Freedom Restoration Act of 1993,
`42 U.S.C. 2000bb et seq. ....................................................... 3
`28 U.S.C. 1404(a) ..................................................................... 3
`Fed. R. Civ. P. 59(e) ................................................................ 7
`
`Miscellaneous:
`
`
`
`Dep’t of the Navy, NAVADMIN 065/23, Follow On
`COVID-19 Vaccine Rescission Actions
`(Mar. 6, 2023), perma.cc/B2SG-JL76 .................................. 7
`Stanley M. Lemon et al., Protecting Our Forces:
`Improving Vaccine Acquisition and Availability
`in the U.S. Military (2002) .................................................. 2
`Memorandum from Christine E. Wormuth,
`Sec’y of the Army, Army Policy Implementing
`the Secretary of Defense Coronavirus Disease 2019
`(COVID-19) Vaccination Mandate Rescission
`(Feb. 24, 2023), perma.cc/7JZG-G2ZA ............................... 7
`Connor O’Brien, Politico, Defense bill rolls back
`Pentagon’s Covid vaccine mandate (Dec. 6, 2022),
`perma.cc/YQ26-DYAL ......................................................... 5
`Sec’y of the Air Force Pub. Affairs, DAF Issues
`Guidance on COVID-related adverse actions;
`Religious Accommodation Requests (Feb. 27,
`2023), perma.cc/4NF3-UFPD ............................................. 6
`Sabrina Singh, Deputy Pentagon Press Sec’y,
`Dep’t of Def., Press Briefing Tr. (Dec. 7, 2022),
`perma.cc/EXQ2-FNBN ....................................................... 5
`
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`23-717
`
`ISRAEL ALVARADO, ET AL., PETITIONERS
`v.
`
`LLOYD J. AUSTIN, III, SECRETARY OF DEFENSE, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`BRIEF FOR THE RESPONDENTS IN OPPOSITION
`
`
`
`OPINIONS BELOW
`The order of the court of appeals (Pet. App. 1a-2a) is
`not published in the Federal Reporter but is available
`at 2023 WL 7125168. The opinions of the district court
`(Pet. App. 3a-27a, 28a-40a) are not published in the Fed-
`eral Supplement but are available at 2022 WL 18587373
`and 2023 WL 2089246, respectively.
`
`JURISDICTION
`The judgment of the court of appeals was entered on
`August 3, 2023. On September 27, 2023, and December
`1, 2023, the Chief Justice granted applications to extend
`the time within which to file a petition for a writ of cer-
`tiorari, ultimately extending the time to and including
`December 29, 2023. The petition was filed on that date.
`The jurisdiction of this Court is invoked under 28 U.S.C.
`1254(1).
`
`(1)
`
`
`
`2
`
`STATEMENT
`1. The U.S. military has relied on mandatory im-
`munization since 1777, when George Washington di-
`rected that the Continental Army be inoculated against
`smallpox. Stanley M. Lemon et al., Protecting Our
`Forces: Improving Vaccine Acquisition and Availabil-
`ity in the U.S. Military 11-12 (2002). As of 2021, nine
`vaccines were required for all servicemembers, and
`eight other vaccines were required in some circum-
`stances based on risk of exposure. Pet. App. 5a n.4.
`In August 2021, after the Food and Drug Admin-
`istration approved the first COVID-19 vaccine, the Sec-
`retary of Defense announced that vaccination against
`COVID-19 would be added to the required list. Pet.
`App. 5a. The Departments of the Army, the Navy, and
`the Air Force then issued “implementation guidance
`and set vaccination deadlines” for servicemembers in
`each branch. Ibid.
`Each service branch permitted servicemembers to
`seek an exemption from the COVID-19 vaccination
`requirement for “medical, administrative, and reli-
`gious” reasons. Pet. App. 5a. For requests for religious
`exemptions, the service branches relied on preexisting
`policies governing servicemembers’ requests for reli-
`gious accommodations from other generally applicable
`requirements,
`including other vaccination require-
`ments. While those policies varied in some respects as
`between the service branches, they all provided for the
`involvement of a military chaplain, “review by a senior
`military leader,” and an “appeals process” after an ini-
`tial decision. Id. at 6a.
`Servicemembers were not required to be vaccinated
`against COVID-19 while seeking a request for a medi-
`cal, administrative, or religious exemption. Pet. App.
`
`
`
`
`
`3
`
`6a-7a. But if a servicemember’s request for such an ex-
`emption was ultimately denied, the servicemember was
`required to comply with the order to be vaccinated. Ser-
`vicemembers who refused to do so were offered an op-
`portunity to retire, if eligible, or could be subject to dis-
`cipline, including discharge from the service. Ibid.
`2. In May 2022, petitioners brought this putative
`class action in the Middle District of Florida to chal-
`lenge the military’s COVID-19 vaccination requirement
`on various grounds. See Compl. ¶¶ 1-27. Petitioners
`are military chaplains in the Air Force, Army, and Navy
`who, as servicemembers, were subject to the vaccina-
`tion requirement and who had submitted religious ac-
`commodation requests to their respective service
`branches. Compl. ¶¶ 28-58. At the time of the com-
`plaint, some of the plaintiffs alleged that their requests
`for religious accommodations had already been denied,
`while others alleged that their requests were still pend-
`ing. See, e.g., Compl. ¶¶ 28-31. After a hearing at which
`the district court questioned whether venue in the Mid-
`dle District of Florida was appropriate, petitioners filed
`an unopposed motion to transfer the case to the Eastern
`District of Virginia. See 22-cv-1149 D. Ct. Doc. 46, at 1
`(July 27, 2022). The Florida court granted that motion
`and transferred the case pursuant to 28 U.S.C. 1404(a).
`22-cv-1149 D. Ct. Doc. 49, at 1 (July 27, 2022).
`After the transfer, petitioners moved for a prelimi-
`nary injunction to restrain the military from requiring
`them to be vaccinated during the pendency of the litiga-
`tion. D. Ct. Doc. 59, at 1 (Aug. 15, 2022). As relevant
`here, petitioners argued that the military had adopted
`a de facto policy of denying all or nearly all religious-
`accommodation requests and that the alleged policy
`violated the Religious Freedom Restoration Act of 1993
`
`
`
`
`
`4
`
`(RFRA), 42 U.S.C. 2000bb et seq. See D. Ct. Doc. 60, at
`29-32 (Aug. 15, 2022). Petitioners also invoked Section
`533 of the National Defense Authorization Act for Fis-
`cal Year 2013, Pub. L. No. 112-239, Tit. V, 126 Stat.
`1727. See D. Ct. Doc. 60, at 37-41. Section 533 provides
`that the Armed Forces may not require a chaplain “to
`perform any rite, ritual, or ceremony that is contrary to
`the conscience, moral principles, or religious beliefs of
`the chaplain.” § 533(b)(1), 126 Stat. 1727. Section 533
`further provides that the Armed Forces may not “dis-
`criminate or take any adverse personnel action against
`a chaplain, including denial of promotion, schooling,
`training, or assignment, on the basis of the refusal by
`the chaplain to comply with a requirement prohibited
`by [Section 533(b)(1)].” § 533(b)(2), 126 Stat. 1727. 1
`The district court denied petitioners’ motion for a
`preliminary injunction, dismissed the case sua sponte
`for lack of subject-matter jurisdiction, and denied as
`moot a pending motion for class certification. Pet. App.
`
`
`1 By the time petitioners sought a preliminary injunction from the
`Virginia district court, other district courts had already preliminar-
`ily enjoined the Navy and the Air Force from enforcing the COVID-
`19 vaccination requirement against certified classes of servicemem-
`bers in those branches. See Doster v. Kendall, No. 22-cv-84, 2022
`WL 2974733, at *1-*2 (S.D. Ohio July 27, 2022), aff ’d, 54 F.4th 398
`(6th Cir. 2022); U.S. Navy SEALs 1-26 v. Austin, 594 F. Supp. 3d
`767, 789 (N.D. Tex. 2022), appeal dismissed as moot, 72 F.4th 666
`(5th Cir. 2023). The preliminary injunctions issued by the district
`court in Doster were the subject of this Court’s order in Kendall v.
`Doster, 144 S. Ct. 481 (2023), granting the government’s petition for
`a writ of certiorari, vacating the judgment below, and remanding
`the case to the Sixth Circuit with instructions to direct the district
`court to vacate its injunctions as moot pursuant to United States v.
`Munsingwear, Inc., 340 U.S. 36 (1950).
`
`
`
`
`5
`
`3a-27a. The court determined that some of the petition-
`ers had failed to “exhaust their available remedies
`within the armed forces.” Id. at 15a (citing, inter alia,
`Williams v. Wilson, 762 F.2d 357, 359-360 (4th Cir.
`1985)); see id. at 16a-21a. The court also determined
`that all of petitioners’ claims were nonjusticiable under
`“the Mindes test,” id. at 22a, which the Fourth Circuit
`applies to determine the justiciability of claims by ser-
`vicemembers seeking judicial review of internal mili-
`tary affairs. See Williams, 762 F.2d at 359 (discussing
`Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971)).
`3. The district court dismissed the complaint on No-
`vember 23, 2022. Pet. App. 26a-27a. A few weeks later,
`Congress enacted the James M. Inhofe National De-
`fense Authorization Act for Fiscal Year 2023 (NDAA),
`Pub. L. No. 117-263, 136 Stat. 2395, which the President
`signed into law on December 23, 2022. Section 525 of
`the NDAA directed the Secretary of Defense to rescind,
`within 30 days, the “mandate that members of the
`Armed Forces be vaccinated against COVID-19.” § 525,
`136 Stat. 2571-2572.
`Although the Secretary of Defense had opposed the
`enactment of Section 525 of the NDAA, he promptly
`complied with Congress’s direction.2 On January 10,
`2023, the Secretary rescinded the COVID-19 vaccina-
`tion requirement that he had previously imposed. Pet.
`
`
`2 See, e.g., Sabrina Singh, Deputy Pentagon Press Sec’y, Dep’t of
`Def., Press Briefing Tr. (Dec. 7, 2022), perma.cc/EXQ2-FNBN
`(stating that the Secretary of Defense “support[ed] continuing the
`vaccine mandate in the NDAA”); Connor O’Brien, Politico, Defense
`bill rolls back Pentagon’s Covid vaccine mandate (Dec. 6, 2022),
`perma.cc/YQ26-DYAL (quoting a government spokesperson’s state-
`ment that “Secretary Austin has been very clear that he opposes the
`repeal of the vaccine policy”).
`
`
`
`
`
`6
`
`App. 29a. The Secretary’s memorandum rescinding the
`requirement also provided that “[n]o individuals cur-
`rently serving in the Armed Forces shall be separated
`solely on the basis of their refusal to receive the
`COVID-19 vaccination if they sought an accommodation
`on religious, administrative, or medical grounds,” and
`that “[t]he Military Departments will update the rec-
`ords of such individuals to remove any adverse actions
`solely associated with denials of such requests, includ-
`ing letters of reprimand.” Gov’t C.A. Mot. to Dismiss
`App. A254 (C.A. App.). The Secretary also directed
`each service branch to cease any ongoing review of cur-
`rent servicemembers’ “religious, administrative, or
`medical accommodation requests solely for exemption
`from the COVID-19 vaccine or appeals of denials of such
`requests.” Ibid.
`For any servicemember who had been discharged
`“on the sole basis that the Service member failed to
`obey a lawful order to receive a vaccine for COVID-19,”
`the Secretary of Defense noted that the military was
`“precluded by law from awarding any characterization
`less than a general (under honorable conditions) dis-
`charge.” C.A. App. A255. But to the extent that former
`servicemembers wished to seek any correction in their
`personnel records, the Secretary observed that they
`may “petition their Military Department’s Discharge
`Review Boards and Boards for Correction of Military or
`Naval Records.” Ibid.
`Each of the military services then issued its own im-
`plementing guidance to halt ongoing enforcement ac-
`tions and remove adverse actions from servicemembers’
`personnel records. See, e.g., Sec’y of the Air Force Pub.
`Affairs, DAF Issues Guidance on COVID-related ad-
`verse actions; Religious Accommodation Requests
`
`
`
`
`
`7
`
`(Feb. 27, 2023), perma.cc/4NF3-UFPD; Memorandum
`from Christine E. Wormuth, Sec’y of the Army, Army
`Policy Implementing the Secretary of Defense Corona-
`virus Disease 2019 (COVID-19) Vaccination Mandate
`Rescission (Feb. 24, 2023), perma.cc/7JZG-G2ZA;
`Dep’t of the Navy, NAVADMIN 065/23, Follow On
`COVID-19 Vaccine Rescission Actions (Mar. 6, 2023),
`perma.cc/B2SG-JL76.
`4. On December 17, 2022, after Congress had passed
`the NDAA, petitioners filed a motion under Federal
`Rule of Civil Procedure 59(e) seeking reconsideration of
`the dismissal of their complaint. Pet. App. 29a. Peti-
`tioners maintained, among other things, that the NDAA
`“amounted to a change in controlling law.” Ibid. The
`district court denied petitioners’ motion. Id. at 28a-40a.
`5. Petitioners appealed the district court’s orders
`dismissing their complaint and denying their Rule 59(e)
`motion. See D. Ct. Doc. 99, at 1 (Apr. 12, 2023). The
`government moved to dismiss the appeal as moot in
`light of the NDAA and the Secretary of Defense’s re-
`scission of the challenged COVID-19 vaccination re-
`quirement. See Gov’t C.A. Mot. to Dismiss 1, 11-13. Pe-
`titioners opposed the motion, arguing principally that
`their claims had not been mooted by the rescission of
`the vaccination requirement because their complaint
`also included a request that the district court order the
`military to “take necessary actions to repair and restore
`[their] careers and personnel records.” Pet. C.A. Moot-
`ness Opp. 9 (quoting Compl. 123-124). In particular, pe-
`titioners maintained that a live controversy about the
`lawfulness of the rescinded policy continued to exist be-
`cause their refusal to comply with that policy when it
`was in effect had allegedly caused them to miss out on
`
`
`
`
`
`8
`
`“assignment[s], promotion[s], and schooling,” with po-
`tential future ramifications for their military careers.
`Ibid.; see id. at 9-11. In the alternative, petitioners re-
`quested that the court of appeals vacate the district
`court’s orders pursuant to the Munsingwear doctrine.
`Id. at 25; see United States v. Munsingwear, Inc., 340
`U.S. 36, 39-40 (1950).
`In reply, the government explained that the military
`had already taken steps to address concerns about fu-
`ture assignments and promotions by ensuring that any
`adverse actions in servicemembers’ personnel records
`associated solely with a refusal to comply with the
`COVID-19 vaccination requirement are removed. Gov’t
`C.A. Mootness Reply Br. 2. The government also ex-
`plained that, to the extent that petitioners were seeking
`an injunction that would require the military to promote
`them to a rank or position that they claim they would
`have occupied had the COVID-19 vaccination require-
`ment never been in place, petitioners had failed to iden-
`tify any lawful basis for such an order, which would go
`beyond restoring the status quo ante. See id. at 2-5.
`The court of appeals granted the government’s mo-
`tion and dismissed petitioners’ appeal in an unpublished
`order. Pet. App. 1a-2a. As requested by petitioners, the
`court of appeals also vacated the district court’s orders
`and remanded the case with “directions to dismiss as
`moot.” Id. at 2a. On October 23, 2023, the district court
`complied with the appellate mandate and entered an or-
`der dismissing the action as moot. D. Ct. Doc. 106.
`
`ARGUMENT
`The court of appeals correctly recognized that it
`lacked Article III jurisdiction over petitioners’ appeal
`because this case is moot. Petitioners reprise their con-
`tention (Pet. 7-13, 17-18) that the allegations in their
`
`
`
`
`
`9
`
`complaint regarding lost training and promotional op-
`portunities prevent this case from becoming moot. Pe-
`titioners also contend (Pet. 15-16) that an exception to
`mootness applies because the challenged policy is capa-
`ble of repetition while evading review. Those conten-
`tions lack merit. Petitioners brought this case to seek
`prospective relief from the military’s COVID-19 vac-
`cination requirement. Any live controversy about that
`requirement ceased to exist when the Secretary of De-
`fense complied with the NDAA and rescinded the vac-
`cination requirement, while also taking steps to ensure
`that servicemembers’ personnel records are corrected
`to remove adverse actions associated solely with refus-
`ing to comply with the COVID-19 vaccination require-
`ment after the denial of a request for a religious, medi-
`cal, or administrative exemption.
`In any event, the unpublished order of the court of
`appeals dismissing petitioners’ appeal on mootness
`grounds does not warrant plenary review by this Court.
`The order does not conflict with any decision of this
`Court or another court of appeal. To the contrary, this
`Court and numerous lower courts have treated analo-
`gous disputes as moot after the rescission of the mili-
`tary’s COVID-19 vaccination requirement. See Kendall
`v. Doster, 144 S. Ct. 481 (2023) (granting, vacating, and
`remanding on mootness grounds); see also pp. 16-17, in-
`fra (collecting cases). The petition for a writ of certio-
`rari should be denied.
`1. The court of appeals correctly dismissed petition-
`ers’ appeal as moot. Pet. App. 2a. Any live controversy
`between the parties regarding the military’s COVID-19
`vaccination requirement ceased to exist after the rescis-
`sion of the challenged policy, and no exception to moot-
`ness applies.
`
`
`
`
`
`10
`
`a. Under Article III, the jurisdiction of the federal
`courts is limited to the resolution of actual “Cases” or
`“Controversies.” U.S. Const. Art. III, § 2, Cl. 1. “To
`qualify as a case fit for federal-court adjudication, ‘an
`actual controversy must be extant at all stages of re-
`view.’ ” Arizonans for Official English v. Arizona, 520
`U.S. 43, 67 (1997) (citation omitted). “A case that be-
`comes moot at any point during the proceedings is ‘no
`longer a “Case” or “Controversy” for purposes of Arti-
`cle III,’ and is outside the jurisdiction of the federal
`courts.” United States v. Sanchez-Gomez, 584 U.S. 381,
`385-386 (2018) (quoting Already, LLC v. Nike, Inc., 568
`U.S. 85, 91 (2013)).
`A case or appeal becomes moot “when the issues pre-
`sented are no longer ‘live’ or the parties lack a legally
`cognizable interest in the outcome.” Already, 568 U.S.
`at 91 (citation omitted). “No matter how vehemently
`the parties continue to dispute the lawfulness of the con-
`duct that precipitated the lawsuit, the case is moot if the
`dispute ‘is no longer embedded in any actual contro-
`versy about the plaintiffs’ particular legal rights.’ ”
`Ibid. (citation omitted).
`Mootness may result during litigation when a contro-
`versy is overtaken by new legislation that “significantly
`alters the posture of th[e] case.” United States Dep’t of
`the Treasury v. Galioto, 477 U.S. 556, 559 (1986). In
`United States v. Microsoft Corp., 138 S. Ct. 1186 (2018)
`(per curiam), for example, the Court granted certiorari
`to address the circumstances under which “a U.S. pro-
`vider of e-mail services must disclose to the Govern-
`ment electronic communications within its control” that
`are stored abroad, id. at 1187. While the case was pend-
`ing, Congress enacted new legislation addressing the
`
`
`
`
`
`11
`
`same issue, and the government applied for and ob-
`tained a warrant under the new law. Id. at 1187-1188.
`The Court held that, as a result of those developments,
`“[n]o live dispute remain[ed] between the parties over
`the issue with respect to which certiorari was granted,”
`and the case “ha[d] become moot.” Id. at 1188; see, e.g.,
`United States Dep’t of Justice v. Provenzano, 469 U.S.
`14, 15 (1984) (per curiam) (holding that “new legislation
`* * * plainly render[ed] moot” the question presented);
`Galioto, 477 U.S. at 559 (similar).
`b. The court of appeals faithfully applied those prin-
`ciples in dismissing petitioners’ appeal as moot. As re-
`cited in the opening paragraph of the complaint, peti-
`tioners brought this action to “challenge [the Secretary
`of Defense’s] COVID-19 vaccination mandate” and the
`military’s alleged “policy of uniformly denying religious
`accommodations.” Compl. ¶ 1. Although petitioners are
`military chaplains, the gravamen of the complaint was
`that they—like other servicemembers—faced the pro-
`spect of “disciplinary action for refusing an order to
`take the COVID-19 vaccine,” ibid., and they sought pro-
`spective injunctive relief from the vaccination require-
`ment, see, e.g., Compl. ¶¶ 179, 188, 205, 223. The NDAA
`and its implementation mooted any live controversy be-
`tween the parties about those matters.
`Section 525 of the NDAA provided that, “[n]ot later
`than 30 days after the * * * enactment” of the NDAA,
`“the Secretary of Defense shall rescind the mandate
`that members of the Armed Forces be vaccinated
`against COVID-19.” § 525, 136 Stat. 2571-2572. Although
`the Secretary had opposed including any such provision
`in the NDAA, he complied with Congress’s directive by
`formally “rescind[ing] the mandate that members of the
`
`
`
`
`
`12
`
`Armed Forces be vaccinated against COVID-19.” C.A.
`App. A254.
`The Secretary of Defense also ordered that current
`servicemembers may not be separated from the service
`“solely on the basis of their refusal to receive the
`COVID-19 vaccination if they sought an accommodation
`on religious * * * grounds.” C.A. App. A254; cf. Pet. 5.
`The Secretary further directed that the military rec-
`ords of any such individuals be updated “to remove any
`adverse actions solely associated with” the denial of
`their requests for religious exemptions, “including let-
`ters of reprimand.” C.A. App. A254. And each branch
`of the military has now taken steps to implement the
`Secretary’s directives. See pp. 6-7, supra.
`As a result, this case is now moot. Granting petition-
`ers’ request for prospective injunctive relief against the
`rescinded COVID-19 vaccination requirement would
`not benefit them in any concrete way because they are
`no longer subject to that requirement and face no pro-
`spect of being disciplined for failure to comply with it,
`now or in the past.
`c. Petitioners’ contrary arguments lack merit. Peti-
`tioners principally contend (Pet. 9) that their complaint
`alleges “ongoing” harms that are still capable of redress
`by an Article III court. According to petitioners, they
`missed out on unspecified opportunities for training or
`promotion while refusing to comply with the COVID-19
`vaccination requirement when it was in effect, and those
`lost opportunities will continue to affect their future
`military careers in negative ways, either because peti-
`tioners will be “branded as ‘not team players’ ” or be-
`cause they are no longer on “equal footing” with other
`servicemembers who complied with the vaccination re-
`quirement. Pet. 17-18; see Pet. 7-13.
`
`
`
`
`
`13
`
`As already explained above, however, the Secretary
`of Defense and the military services have made clear
`that servicemembers who sought religious exemptions
`will not face any future discipline for not complying with
`the COVID-19 vaccination requirement when it still ex-
`isted, and their service records will be corrected to re-
`move any prior discipline. See C.A. App. A254; see also,
`e.g., U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 673
`(5th Cir. 2023) (dismissing analogous appeals as moot
`and explaining that “the Navy has definitively restored
`[servicemembers who sought religious exemptions from
`the COVID-19 vaccination requirement] to equal foot-
`ing with their vaccinated counterparts through re-
`peated formal policy changes”).
`To the extent that petitioners seek an injunction that
`would require the military to treat them in the future as
`though they had received promotions or trainings that
`they did not in fact receive—thus “level[ing]” them up
`with others servicemembers whom petitioners perceive
`as now having an unfair “competitive advantage” (Pet.
`18)—petitioners do not identify any lawful basis for
`such an extraordinary order. Any such order would go
`beyond restoring the status quo ante and would threaten
`to interfere with quintessentially military judgments
`about assignments and promotions. See, e.g., Gilligan
`v. Morgan, 413 U.S. 1, 10 (1973) (describing the “com-
`plex, subtle, and professional decisions as to the compo-
`sition, training, equipping, and control of a military
`force” as “essentially professional military judgments”
`that are not fit for judicial resolution); Orloff v.
`Willoughby, 345 U.S. 83, 93 (1953) (observing that
`“judges are not given the task of running the Army”).
`Petitioners also do not identify any plausible exam-
`ples of the equal-footing problem they purportedly now
`
`
`
`
`
`14
`
`face. Petitioners state (Pet. 5, 19) that a particular
`chaplain was separated from service as a result of being
`unable to attend a training while the chaplain was de-
`clining to comply with the COVID-19 vaccination re-
`quirement for religious reasons. But according to peti-
`tioners, that separation occurred on December 1, 2023
`(Pet. 5), nearly a year after the Secretary of Defense
`rescinded the vaccination requirement. Even assuming
`for the sake of argument that the separation in question
`was the result solely of the missed training, petitioners
`offer no basis for concluding that any failure to com-
`plete the necessary training by December 2023 was at-
`tributable to a vaccination requirement that had al-
`ready been rescinded by January 2023. A fortiori, peti-
`tioners identify no reason to think that, as time marches
`on, any future decisions about their assignments or pro-
`motions will be affected by a vaccination requirement
`that was rescinded more than a year ago.3
`d. Petitioners alternatively contend (Pet. 15-16) that
`this case falls within the exception to mootness for dis-
`putes that are “capable of repetition, yet evading re-
`view.” Sanchez-Gomez, 138 S. Ct. at 1540 (citation omit-
`ted). “A dispute qualifies for that exception only ‘if
`
`
`3 Petitioners are mistaken to suggest (Pet. 13-14) that the possi-
`bility of money damages under RFRA could provide an alternative
`basis for preventing this case from becoming moot. As petitioners
`acknowledge (Pet. 14), they did not actually seek such relief in their
`complaint. Nor could they have. Although RFRA “permits liti-
`gants, when appropriate, to obtain money damages against federal
`officials in their individual capacities,” Tanzin v. Tanvir, 141 S. Ct.
`486, 493 (2020) (emphasis added), all of the federal officials named
`as defendants here were sued solely in their official capacities, see
`Compl. 1-2. RFRA does not authorize money damages in official-
`capacity suits. See Tanvir v. Tanzin, 894 F.3d 449, 464-465 (2d Cir.
`2018), aff ’d, 141 S. Ct. 486 (2020).
`
`
`
`
`15
`
`(1) the challenged action is in its duration too short to
`be fully litigated prior to its cessation or expiration, and
`(2) there is
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