United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30497

____________

Faith Crocker; David J. Schadwinkel; Ian R. McHaley; 

Christopher F. Duff; Byron O. Starks, Jr.; Wayne E. 

Johnson; Mendell L. Potier, 

Plaintiffs—Appellants, 

versus

Lloyd Austin; United States Department of Defense; 

Frank Kendall, III; Robert I. Miller; Richard W. Scobee, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 5:22-CV-757

______________________________

Before Southwick and Duncan, Circuit Judges, and Kernodle, 

District Judge.*

Jeremy D. Kernodle, District Judge: 

This appeal arises out of the Air Force’s COVID-19 vaccine mandate. 

After the Air Force rescinded the mandate, the district court dismissed the 

_____________________

* United States District Judge for the Eastern District of Texas, sitting by 

designation.

United States Court of Appeals

Fifth Circuit

FILED

September 23, 2024

Lyle W. Cayce

Clerk

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case as moot. The district court also separately dismissed the claims of 

Plaintiff-Appellant Byron O. Starks, Jr. for lack of standing because the Air 

Force had separated him from service. Because the rescission did not redress 

all of plaintiffs’ alleged harms and because Starks has standing, we 

REVERSE and REMAND.

I.

On August 24, 2021, Secretary of Defense Lloyd Austin directed each 

military branch to immediately begin full vaccination of all members of the 

Armed Forces. Several days later, Secretary of the Air Force Frank Kendall 

implemented the mandate, ordering Air Force commanders to take all steps 

necessary to ensure all uniformed service members receive the COVID-19 

vaccine. Failing to receive a vaccine would result in the initiation of 

administrative discharge proceedings against the service member. The Air 

Force allowed service members to request a religious exemption from the 

vaccine mandate and appeal a denied request. If an appeal was denied, the 

service member had five days to begin the COVID-19 vaccination before 

initiation of discharge proceedings.

At the time of the mandate, each of the seven Plaintiff-Appellants 

served on active- or reserve-duty in the Air Force. Each Appellant objected 

to the vaccine mandate based on sincerely held religious beliefs and requested 

a religious exemption. The Air Force denied all seven requests, and 

Appellants unsuccessfully appealed the denials. In many cases, the Air Force 

acknowledged the request was based on a sincerely held religious belief.

On March 20, 2022, Appellant Faith N. Crocker, a Senior Airman in 

the Air Force Reserve, sued Secretaries Austin and Kendall, the Department 

of Defense, and other Air Force officials (collectively, the “Air Force”) in 

the Western District of Louisiana. Later, Appellants Christopher F. Duff, a 

Lieutenant Colonel in the Air Force; Wayne E. Johnson, a Lieutenant 

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Colonel in the Air Force Reserve; David J. Schadwinkel, a Major in the Air 

Force Reserve; Ian R. McHaley, a Master Sergeant in the Air Force; Mendell 

L. Potier, a Staff Sergent in the Air Force Reserve; and Byron O. Starks, Jr., 

an Airman First Class in the Air Force, joined the lawsuit. The amended 

complaint alleged that “Defendants’ vaccination policies” violate 

Appellants’ rights under the First Amendment, the Religious Freedom 

Restoration Act (RFRA), and the Administrative Procedure Act. The 

complaint sought a declaratory judgment that the vaccination policies are 

unlawful and preliminary and permanent injunctions prohibiting the Air 

Force from enforcing the policies.

At the time of the amended complaint, Starks was serving on active 

duty. A month later, on June 23, 2022, the Air Force separated Starks from 

the service. The Air Force argues that Starks was separated because of a 

preexisting and disqualifying medical condition, not because of his refusal to 

comply with the vaccine mandate. Starks, in turn, asserts that he was 

separated for his failure to comply with the mandate and that the Air Force’s 

stated reason for the separation is pretext.

The Air Force moved to dismiss Starks’s claims under Federal Rules 

of Civil Procedure 12(b)(1) and 12(b)(6), arguing that he lacked standing 

post-separation and that he failed to exhaust his administrative remedies. 

The district court granted the motion and dismissed Starks’s claims for lack 

of standing “because he is no longer an active member of the Air Force” and 

is no longer subject to the COVID-19 vaccine mandate. The district court 

also agreed that Starks failed to exhaust his administrative remedies, applying 

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), which generally requires 

service members to exhaust intraservice administrative remedies before 

bringing a suit challenging a separation decision.

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In December 2022, Congress enacted the James M. Inhofe National 

Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-236, 136 

Stat. 2395 (2022) (“2023 NDAA”). Section 525 of the 2023 NDAA required 

Secretary Austin to rescind the vaccine mandate. 136 Stat. at 2571–72. By 

memorandum dated January 10, 2023, Secretary Austin stated that “[n]o 

individuals currently serving in the Armed Forces shall be separated solely 

on the basis of their refusal to receive the COVID-19 vaccine if they sought 

an accommodation on religious . . . grounds.” Memorandum, Secretary of 

Defense, Recission of the August 24, 2021 and November 30, 2021 

Coronavirus Disease 2019 Vaccination Requirements for Members of the 

Armed Forces (Jan. 10, 2023). Secretary Austin also directed military 

departments to update the records of any service member who had been 

subject to “any adverse actions solely associated with denials of such 

requests” and to “cease any ongoing reviews of current Service member 

religious . . . accommodation requests.” Id. The memorandum further 

stated that any service members who had been discharged solely because of a 

refusal to receive the COVID-19 vaccine could “individually request a 

correction to their personnel records.” Id. The Air Force implemented the 

recission over the following weeks. The Air Force also states that it has 

removed any adverse actions related to the vaccine mandate from the records 

of all Appellants (except Starks).

Thereafter, the Air Force moved to dismiss the claims of the 

remaining Appellants, arguing that the 2023 NDAA’s recission mooted the 

case. The district court granted the motion. The district court held that, 

because the challenged vaccine mandate “simply does not exist anymore,” 

“there is no axe left to fall.” Thus, “there is simply no impending threat to 

[Appellants’] rights, and there is no live case or controversy for the Court to 

act on.” The court also found that no exception to mootness applied.

This appeal followed.

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II.

We review de novo a district court’s “dismissal for lack of subject 

matter jurisdiction pursuant to Rule 12(b)(1) or for failure to state a claim 

pursuant to Rule 12(b)(6).” Ctr. for Biological Diversity, Inc. v. BP Am. Prod. 

Co., 704 F.3d 413, 421 (5th Cir. 2013). “Legal questions relating to standing 

and mootness are also reviewed de novo.” Id. 

As discussed above, the district court dismissed Appellants’ claims on 

separate grounds. The district court determined that Starks—the only 

Appellant no longer serving in the Air Force—lacked standing after his 

separation and had failed to exhaust his administrative remedies. And it 

found that the claims of the six Appellants still serving in the Air Force were 

moot after the 2023 NDAA. The Court addresses each ground in turn.

A.

First, the dismissal of Airman First Class Byron O. Starks, Jr.

1. Standing

The district court held that Starks lacked standing to challenge the Air 

Force’s COVID-19 vaccination mandate because he is no longer an active 

service member. Starks, the court explained, “does not face an actual or 

imminent injury” because as a discharged serviceman, “Starks is not subject 

to the COVID-19 vaccine—even if the mandate were still in effect, it would 

not apply to Starks.”

To establish standing, a plaintiff must plead and prove “an injury that 

is ‘concrete, particularized, and actual or imminent; fairly traceable to the 

challenged action; and redressable by a favorable ruling.’” Texas v. United 

States, 809 F.3d 134, 150 (5th Cir. 2015) (quoting Clapper v. Amnesty Int’l 

USA, 568 U.S. 398, 409 (2013)). “[W]hen considering whether a plaintiff 

has Article III standing, a federal court must assume arguendo the merits of 

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his or her legal claim.” N. Cypress Med. Ctr. Operating Co. v. Cigna 

Healthcare, 781 F.3d 182, 191 (5th Cir. 2015) (quoting Cole v. Gen. Motors 

Corp., 484 F.3d 717, 723 (5th Cir. 2007)).

Here, Starks sufficiently alleged injuries. His complaint stated that he 

faced “imminent involuntary administrative separation from the Air Force”

because of his refusal to receive the COVID-19 vaccine. The Air Force 

discharged Starks less than a month after the amended complaint was filed. 

And because his separation was characterized as “general”—rather than 

honorable—he faces lasting harm, such as ineligibility for certain veteran 

benefits, including the GI Bill. See, e.g., Lorance v. Commandant, U.S.

Disciplinary Barracks, 13 F.4th 1150, 1165 (10th Cir. 2021) (finding that a 

habeas case was not mooted by a pardon where the petitioner still faced 

collateral consequences including loss of military benefits); Gay Veterans 

Ass’n v. Sec’y of Def., 668 F. Supp. 11, 14 (D.D.C. 1987) (“[S]eparation from 

the military accompanied by a less-than-honorable discharge characterization 

hinders civilian employment opportunities, thereby infringing on 

constitutionally protected liberty and property interests . . . .”).

The Air Force does not dispute Starks’s alleged injuries but argues 

that they are “not consequences of the vaccination requirement.” The Air 

Force contends that Starks “was discharged because he has a disqualifying 

medical condition, unrelated to COVID-19 or COVID-19 vaccination.” But 

on a motion to dismiss, we assume Starks’s well-pleaded factual allegations 

are true. See Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). The Air 

Force also argues that Starks failed to allege these harms in his separation 

proceedings or include them in the amended complaint. Not so.

Starks made these alleged harms clear in his separation proceedings. 

After Starks joined the lawsuit, his counsel sent a letter to the Air Force 

“advis[ing] [it] not to take any negative personnel actions against Airman 

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First Class Starks during the pendency of his complaint.” The letter also 

explicitly warned against separation on pretext: “Specifically, we understand 

the government is attempting to retaliate against Airman First Class Starks 

with an involuntary administrative separation on the pretextual grounds of 

erroneous enlistment.”

Likewise, as previously discussed, the complaint in this case alleged

that Starks “face[d] imminent involuntary administrative separation from 

the Air Force and the loss of the opportunity to serve his nation in uniform” 

because of his refusal to comply with the COVID-19 vaccination mandate. 

And Starks was separated from the Air Force just weeks later.

Accordingly, because Starks has sufficiently alleged injuries fairly 

traceable to the challenged actions of the Air Force, he has standing to bring 

his claims.

2. Exhaustion

The district court “[a]lternatively” dismissed Starks’s claims because 

he failed to exhaust his administrative remedies. The court applied Mindes, 

which requires military plaintiffs to first exhaust intraservice administrative 

remedies before bringing a suit challenging a separation decision. We now 

clarify that RFRA claims are not subject to the Mindes exhaustion 

requirement.

Mindes held that “a court should not review internal military affairs in 

the absence of (a) an allegation of the deprivation of a constitutional right, or 

an allegation that the military has acted in violation of applicable statutes or 

its own regulations, and (b) exhaustion of available intraservice corrective 

measures.” 453 F.2d at 201. Mindes based this judge-made rule on “a 

judicial policy akin to comity,” expressing concerns that “courts would be 

inundated with servicemen’s complaints should the doors of reviewability be 

opened” and that “such review might stultify the military in the performance 

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of its vital mission.” Id. at 199. Mindes has since faced significant criticism, 

including that it undermines civilian oversight of the military—a vital 

component of our constitutional order. See, e.g., 13C Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure § 3534.1 n.80 (3d ed. June 

2024 update) (“[T]here is nothing in the power of Congress to make rules 

for the government and regulation of the land and naval forces, nor in the 

powers of the President as commander in chief, that ousts the power of the 

courts to protect the constitutional rights of individuals against improper 

military actions.”); Lindsay Lyon Rodman, Doing Away with the Military 

Deference Doctrine: Applying Lessons from Civil-Military Relations Theory to the 

Supreme Court, 99 N.D. L. Rev. 327, 372 (2024) (arguing that Mindes

undermines civilian control of the military). 

We have previously questioned whether RFRA claims are subject to 

Mindes. In U.S. Navy Seals 1-26 v. Biden (“Navy Seals I”), we explained that 

“Mindes abstention is rooted in the federal common law principle of 

‘comity,’” and noted that “it is likely that, following RFRA’s enactment, 

abstention based on the Mindes test is no longer permissible.” 27 F.4th 336, 

346 (5th Cir. 2022). Several months after Navy Seals I, the Sixth Circuit 

squarely held that service members need not exhaust administrative 

remedies before bringing RFRA claims, pointing to “RFRA’s text, structure, 

and context.” Doster v. Kendall, 54 F.4th 398, 410–15 (6th Cir. 2022), vacated 

as moot, 144 S. Ct. 481 (Mem.) (2023). See also Schelske v. Austin, 649 F. 

Supp. 3d 254, 272 (N.D. Tex. 2022); Colonel Fin. Mgmt. Officer v. Austin, 622 

F. Supp. 3d 1187, 1202 (M.D. Fla. 2022). The Supreme Court later vacated 

Doster as moot in light of the 2023 NDAA but did not comment on the Sixth 

Circuit’s exhaustion analysis. See 144 S. Ct. at 481. 

We likewise now hold that Mindes abstention does not apply to claims 

brought under RFRA. “Congress enacted RFRA in 1993 in order to provide 

very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, 

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Inc., 573 U.S. 682, 693 (2014). Indeed, “[b]y enacting RFRA, Congress went 

far beyond what this Court has held is constitutionally required” by the First 

Amendment. Id. at 706. “RFRA ‘operates as a kind of super statute, 

displacing the normal operation of other federal laws.’” Navy Seals I, 27 

F.4th at 346 (quoting Bostock v. Clayton Cnty., 590 U.S. 644, 682 (2020)); see 

also Korte v. Sebelius, 735 F.3d 654, 673 (7th Cir. 2013) (“RFRA is structured 

as a ‘sweeping “super-statute,” cutting across all other federal statutes (now 

and future, unless specifically exempted) and modifying their reach.’” 

(quoting Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom 

and the U.S. Code, 56 Mont. L. Rev. 249, 253 (1995))). RFRA thus 

“displace[s] a judge-created abstention doctrine” like Mindes. Navy Seals I, 

27 F.4th at 346; see also Doster, 54 F.4th at 413 (“Because the Plaintiffs’ 

claims arise from this statutory source [RFRA], we may not adopt commonlaw abstention rules as if we were regulating a court-created claim.”). Further, 

“when Congress imposed procedural limits on RFRA or related statutes, it 

did so expressly.” Doster, 54 F.4th at 414. The Religious Land Use and 

Institutionalized Persons Act, a statute related to RFRA, expressly 

incorporated a prisoner-exhaustion rule from other federal laws. See id.

(citing 42 U.S.C. § 2000cc-2(e)). We should not read a military-exhaustion 

requirement into RFRA’s text where none exists. See id. 

In sum, Congress created in RFRA a cause of action for service 

members to vindicate their religious liberty rights. See Navy Seals I, 27 F.4th 

at 345–46 (stating that RFRA applies to the military). We will not defeat that 

statutory cause of action with a judge-made abstention doctrine. To do so 

would be to shirk our “virtually unflagging obligation . . . to exercise the 

jurisdiction given [to us].” Colo. River Water Conservation Dist. v. United 

States, 424 U.S. 800, 817 (1976). Starks may therefore proceed with his 

RFRA claim without first exhausting his intraservice administrative 

remedies.

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B.

We next consider whether the claims of the six still-serving Appellants 

are moot.

“Mootness is a jurisdictional question” that goes to the heart of 

Article III’s case-and-controversy requirement. Abbott v. Biden, 70 F.4th 

817, 824 (5th Cir. 2023); see also FBI v. Fikre, 601 U.S. 234, 240–41 (2024). 

“The mootness doctrine . . . requires that a plaintiff’s interest in a suit ‘exist[] 

throughout the proceedings.’” Abbott, 70 F.4th at 824 (quoting Uzuegbunam 

v. Preczewski, 592 U.S. 279, 282 (2021)). “[A] case becomes moot ‘when it 

is impossible for a court to grant “any effectual relief whatever to the 

prevailing party.”’” Id. (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 

567 U.S. 298, 307 (2012)). Thus, when “a complaining party manages to 

secure outside of litigation all the relief he might have won in it,” the case is 

moot. Fikre, 601 U.S. at 240. 

The Air Force has at least partially redressed the harm Appellants 

suffered by rescinding the vaccine mandate and correcting Appellants’ 

service records. Appellants, however, allege that they suffer ongoing harm 

by being subject to a “sham religious accommodation process for 

vaccinations” employed by the Air Force. Appellants argue that the Air 

Force has “implemented an accommodation request process that is intended 

to deny all, or virtually all, religious exemptions from the vaccine mandate.”

They further argue that the process

permits the Air Force to forego individualized assessment and 

to satisfy the compelling interest requirement through generic 

determinations . . . uses boilerplate statements to suffice for 

demonstrating that the Air Force’s action[s] were the least 

restrictive means . . . permits the Air Force to discriminate 

against airmen who submit a request and to apply coercive 

tactics in order to pressure the servicemember to forego their 

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beliefs . . . [and] permits Air Force leadership to dictate denial 

of all requests, no matter the individual circumstances of the 

request.

Indeed, the amended complaint sought relief from “Defendants’ vaccination 

policies”—not merely the COVID-19 vaccine mandate. An entire section of 

the amended complaint criticizes the Air Force’s religious exemption policy. 

And at oral argument, Appellants’ counsel reiterated that Appellants fear 

they will be harmed when seeking religious accommodations from other 

vaccine requirements in the future. Appellants have thus plausibly alleged 

that the Air Force continues to employ an illegal process for religious 

accommodations and that they will again be injured by it. Thus, they have 

not “manage[d] to secure outside of litigation all the relief [they] might have 

won in it.” Fikre, 601 U.S. at 240.

The Air Force relies heavily on our decision in U.S. Navy Seals 1-26 v. 

Biden (“Navy Seals II”), 72 F.4th 666 (5th Cir. 2023). In that case, members 

of Naval Special Warfare Command units sued the Navy, alleging that its 

failure to accommodate their religious objections to the COVID-19 vaccine 

mandate violated the First Amendment and RFRA. Id. at 670. The district 

court entered a preliminary injunction prohibiting the Navy from enforcing 

the vaccine mandate or taking adverse actions against the plaintiffs. Id. The 

Navy appealed the preliminary injunction. Id. at 670–71. While the appeal 

was pending, the Navy rescinded the mandate and removed all adverse 

actions pursuant to the 2023 NDAA. Id. at 671. We held that the 

preliminary-injunction appeal was moot because the recission gave the 

plaintiffs “‘the precise relief’ provided by the preliminary injunctions, 

leaving us ‘unable to provide relief beyond what [the Navy] already gave.’” 

Id. at 673 (alteration in original) (quoting Franciscan All., Inc. v. Becerra, 47 

F.4th 368, 375 (5th Cir. 2022)). 

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The Air Force argues that Navy Seals II controls here. But the Air 

Force misreads our opinion. We held only that the 2023 NDAA mooted the 

preliminary-injunction appeal, not the entire case. See id. In fact, we stated 

that the “mootness of this interlocutory appeal does not prevent the district 

court from ruling on any of Plaintiffs’ claims that remain justiciable,” and we 

remanded the case for further proceedings. Id. at 675–76; see also id. at 676 

(“[T]his interlocutory appeal is moot because the Navy’s vaccine policies 

challenged here have been rescinded . . . . That does not end the litigation, 

however.”). On remand, the district court determined that the plaintiffs’ 

“claims arising out of the [Navy’s] broader vaccine accommodations policy 

may proceed.” U.S. Navy Seals 1-26 v. Austin, No. 4:21-cv-01236-O, slip op. 

at 1–2 (N.D. Tex. Feb. 14, 2024). The plaintiffs had alleged “that their 

underlying harms derive from the lack of a proper religious accommodation 

process,” took “issue with ‘Defendants’ policies and practices’ rather than 

just the [COVID-19 vaccine mandate],” and expressed “hesitance to use the 

accommodations process going forward” because “Defendants have 

announced no changes to [the Navy’s] overarching religious 

accommodations process.” Id. at 7–9. Thus, the district court found that 

this “tangible policy . . . that the Court can still enjoin or declare unlawful” 

was “enough to keep this case alive.” Id. at 12. 

So too here. Although this case appeals a final judgment rather than a 

preliminary injunction, Appellants assert nearly identical allegations of 

discrimination arising from the Air Force’s broader vaccination policy and 

religious accommodations process. The district court correctly determined 

that Appellants’ claims relating specifically to the rescinded COVID-19 

vaccine mandate and its direct consequences are moot. But the district court 

failed to consider Appellants’ broader, ongoing claims concerning the Air 

Force’s alleged “sham” religious exemption process and policies. “What 

matters is not whether a defendant repudiates its past actions, but what 

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repudiation can prove about its future conduct.” Fikre, 601 U.S. at 244. The 

Air Force’s recission of the vaccine mandate and removal of adverse actions 

does not ensure that it will not discriminate against Appellants in the future. 

The case is therefore not moot.

III.

In sum, we hold that Starks has standing to challenge his discharge and 

need not exhaust his administrative remedies before bringing this suit. We 

also hold that the claims of the six Appellants still serving in the Air Force 

are not moot because they plausibly allege an ongoing harm—that they 

remain subject to an allegedly unlawful accommodations process.

We therefore REVERSE and REMAND for further proceedings in 

accordance with this opinion.

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