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.

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COUNSEL

ON PETITION FOR REHEARING EN BANC: Casen B. Ross, Charles W. Scarborough, 

Daniel Winik, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

>
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. 
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.
Nos. 22-3497/3702 Doster, et al. v. Kendall, et al. Page 4

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STATEMENT

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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

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Deborah S. Hunt, Clerk