A lawyer representing Navy Seals who do not want to be vaccinated against Covid-19 told a federal appeals court Monday that their lawsuit over a now-withdrawn vaccine mandate isn't moot even though Congress passed legislation last December ordering the policy canceled.
During arguments before the 5th Circuit Court of Appeals in New Orleans, attorney Heather Hacker said the service members still face the possibility of discipline over their refusal to get vaccinated and the government has not ruled out taking vaccination status into account when doling out future assignments.
"Even though the mandate has been repealed, the Navy will continue to use vaccination status as a requirement for the class members to be able to fulfill their job duties," Hacker said during the 40-minute argument. "It's even worse now because the Navy will not even consider the plaintiffs requests for religious accommodation anymore."
The appeals court issued no immediate rulings Monday.
Justice Department attorney Casen Ross urged the appeals court to set aside as moot preliminary injunctions a federal judge in Texas issued early last year against the Biden administration policy requiring service members to receive a coronavirus vaccine unless granted a religious exemption.
Ross said the National Defense Authorization Act passed in December effectively reversed that policy and rendered the injunctions against the policy moot. Lawmakers acted to nix the military vaccine mandate over the opposition of President Joe Biden, who signed the broader defense measure anyway. Defense Secretary Lloyd Austin formally repealed the orders related to the policy last month.
"This court should accordingly follow its routine practice and vacate those injunctions because these appeals have become moot," Ross said.
The Supreme Court stepped in last March to block a portion of the injunctions, essentially giving the military unfettered authority to make deployment decisions. The Biden administration did not ask the high court to disturb portions of the injunctions prohibiting discipline or removal of service members who refused to get vaccinated or said it violated their religious beliefs.
Three conservative justices dissented from that decision. However, Justice Brett Kavanaugh backed it, saying it was in keeping with a tradition of giving the president broad authority over the military.
However, at Monday's arguments, Judge James Ho said he didn't think the policy was about military needs at all.
"It was about a vaccine policy for the entire country or at least a large percentage. ... So, this was not a military decision. This was a social policy decision," declared Ho, an appointee of President Donald Trump. "There's no discussion of military readiness or anything. It's a perhaps debatable or worthy vaccine mandate policy discussion we can have, but it doesn't sound in military necessity or military readiness. It sounds in social policy."
Ho also suggested that Biden's stated desire to maintain the policy meant it was possible it could return in the future.
"This change is a policy you all vociferously oppose. So, it sort of seems weird to say that there's no controversy anymore," the judge said.
While Ho sounded inclined to leave the injunctions in place, another judge on the panel, James Graves, seemed to be considering wiping them out while letting the litigation continue in the district court. Graves, an appointee of President Barack Obama, asked repeatedly whether the injunctions were actually blocking any policy that is currently in effect.
Judge Kyle Duncan, a Trump appointee, expressed concern that the Navy seemed to have abandoned the religious exemption process it had put in place when the mandate was in effect.
Ho and Duncan pressed Ross about whether the Justice Department contends the case is completely moot or whether the service members can continue to press their legal battle in the lower court. Ross took the unusual tack of declining to say, even though a filing addressing that issue is due in the district court later Monday.
"The government hasn't made a filing yet in that case, and, so, I think it would be premature for me to make any representation to this court," Ross said. "We have a number of hours before it's actually due. So, I don't want to get in front of those litigators."