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No reconsideration of military COVID vaccine mandate suit

Virginia Lawyers Weekly//March 7, 2023

No reconsideration of military COVID vaccine mandate suit

Virginia Lawyers Weekly//March 7, 2023

Where the court previously dismissed a suit brought by military chaplains complaining about the military’s COVID-19 vaccine mandate, the plaintiffs’ motion to reconsider was denied.


This action stems from a complaint by military chaplains surrounding the military’s COVID-19 vaccine mandate. On Nov. 22, 2022, the court denied plaintiff’s motion for preliminary injunction and dismissed the case for want of subject matter jurisdiction. After the court’s order, Congress enacted the Defense Authorization Act for fiscal year 2023, which included a specific provision requiring the Department of Defense to rescind the mandate. On Jan. 10, 2023, the Secretary of Defense issued a memorandum rescinding the mandate, ordering that the military update records to remove adverse actions based on prior refusals to vaccinate and outlining recourse for any servicemembers administratively discharged.

On Dec. 17, 2022, plaintiffs filed a motion seeking reconsideration of the court’s order on the grounds that (1) the 2023 authorization act amounted to a change in controlling law; (2) the court made clear errors of law in dismissing this action and (3) new evidence emerged and is now available to the court.


Plaintiffs argue the 2023 enactment “eliminates entirely the legal basis” for the mandate and “conclusively demonstrates that Secretary Austin sought and did usurp major policy decisions properly made by Congress.” But Congress simply exercised its authority to make a post-mandate policy decision with respect to the military. That Congress acted in such a fashion does not in and of itself suggest the mandate was unlawful or that the court erred in its legal analysis based on the then-existing facts and law.

Plaintiffs further contend that the enactment “eliminates” a central premise to the court’s dismissal. But again, the enactment did not establish or in any way suggest that the court erred in concluding that decisions such as whether to require that troops be vaccinated rest outside Article III. If anything, it endorses the court’s reasoning as it shows that even absent judicial review, the mandate was at all times subject to civilian review through the political branches.

In fact, the enactment and the rescission memo confirm that plaintiffs have still failed to exhaust their intraservice remedies and their claims are non-justiciable because they are not ripe claims. No plaintiff can now be separated on account of their vaccination status. And to the extent any plaintiff complains of any other alleged harm stemming from their refusal to vaccinate, they have not exhausted their intraservice remedies as to those claims.

The ongoing implementation of the rescission memo also confirms that the court lacks subject-matter jurisdiction based on lack of ripeness as to any claim for injuries. How and if the military will redress and/or accommodate plaintiffs in the aftermath of the enactment and rescission memo is entirely speculative and uncertain.

Plaintiffs argue that the court clearly erred when it added an exhaustion requirement to the Religious Freedom Restoration Act, or RFRA, in derogation of its steadfast duty to resolve cases within its jurisdiction. To the contrary, the court simply ruled that the RFRA claim was, in fact, non-justiciable once the court concluded, as it did, that the Mindes test and accompanying exhaustion prerequisite applies to RFRA.

Plaintiffs similarly challenge the court’s dismissal of their other non-RFRA claims, again arguing that either no exhaustion requirement exists or the requirement was satisfied. But following the rescission memo, no claim can now be deemed exhausted. And as to the existence of an exhaustion requirement, plaintiffs fail to recognize and reconcile the difference between a statutory and a judicial exhaustion requirement.

Plaintiffs also contend that the court improperly found that plaintiffs had not pursued relief through the Board of Correction of Military Records prior to exhausting their claims. The court need not address this issue because the rescission memo requires that service secretaries cease review of religious accommodation requests and appeals, orders that records be updated and directs that future guidance be given.

Plaintiffs also assert that a statement by government counsel in a hearing before the Sixth Circuit constitutes new evidence. Given the statement occurred prior to the court’s order, it arguably is not “new.” But in any event, statements by counsel are not evidence. More importantly, having reviewed the recording of the oral argument, the court does not share plaintiffs’ construction of government counsel’s statements, and the statements would not have, in any event, altered the outcome of or analysis in the court’s prior order in any respect.

Plaintiffs argue that defendants misrepresented the procedural rights and protections afforded to more junior chaplains, and that those chaplains instead may be discharged without those protections. But even assuming that the court materially relied on the alleged misrepresentation, the more junior chaplains can no longer suffer the allegedly “irreparable harm” of discharge under the rescission memo.

Alvarado v. Austin, Case No. 1:22-cv-876, Feb. 17, 2023. EDVA at Alexandria (Trenga). VLW 023-3-079. 10 pp.

VLW 023-3-079

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