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

H UNTER D OSTER ; J ASON A NDERSON ; M C K ENNA C OLANTANIO ; P AUL C LEMENT ; J OE D ILLS ; B ENJAMIN L EIBY ; B RETT M ARTIN ; C ONNOR M C C ORMICK ; H EIDI M OSHER ; P ETER N ORRIS ; P ATRICK P OTTINGER ; A LEX R AMSPERGER ; B ENJAMIN R INALDI ; D OUGLAS R UYLE ; C HRISTOPHER S CHULDES ; E DWARD S TAPANON III; A DAM T HERIAULT ; D ANIEL R EINEKE , Plaintiffs

- Appel lees
,

v

.

F RANK K ENDALL , in his official capacity as Secretary of the Air Force; R OBERT I. M ILLER , in his official capacity as Surgeon General of the Air Force; M ARSHALL B. W EBB , in his official capacity as Commander, Air Education and Training Command; R ICHARD W. S COBEE , in his official capacity as Commander, Air Force Reserve Command; J AMES C. S LIFE , in his official capacity as Commander, Air Force Special Operations Command; U NI TED S TATES OF A MERICA , Defendants

- Appellants

. ┐

│ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ 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.

_________________ 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 GLIMST AD 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 th e petition for rehearing en banc. KETHLEDGE, J. (p g

. 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. (p g

. 4 ), delivered a separate statement , in which CLAY and STRANCH, JJ., joined, dissenting from the denial of the petition for rehearing en banc.

_________________ ORDER

_________________ 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 wo uld 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

_________________ STATEMENT

_________________ 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 sui t. 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 M ortg. 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 action s, 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 t he 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

_________________ STATEMENT

_________________ KAREN NELSON MOORE, Circuit Judge, dissenting from the d enial of r ehearing e n b anc. 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 en forcing 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 prel iminary

- 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) (ord er); 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

___________________________________ Deborah S. Hunt, Clerk