Court Opinion: 10th Circuit Court of Appeals Opinion for July 6

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Robert, et al. v. Austin, et al.

Dan Robert and Hollie Mulvihill are former members of the U.S. military who objected to the military’s past COVID-19 vaccination requirement. They sued the Department of Defense, the Food and Drug Administration and the Department of Health and Human Services seeking class certification for other similarly situated service members and alleged the Department of Defense lacked authority to require they receive a COVID-19 vaccine. The district court found the allegations weren’t justiciable, declined to certify a class, denied a request for costs and attorneys’ fees and dismissed the complaint. Robert and Mulvihill appealed. Exercising jurisdiction, the 10th Circuit Court of Appeals granted the government’s motion to dismiss this case as moot.

When this suit was filed, Robert was actively serving in the U.S. Army and Mulvihill was actively serving in the U.S. Marine Corps; both were subjected to the vaccination requirement at the time. Following litigation, the district court dismissed their complaint as non-justiciable. Robert and Mulvihill timely appealed. 

But after the district court made its decision, Robert and Mulvihill both left the military. Before oral argument, the government filed a motion contending Robert’s and Mulvihill’s departure from the military mooted this case. The government also believed legislative and executive branch action was another reason this appeal was moot. On Jan. 10, in accord with the National Defense Authorization Act for Fiscal Year 2023, Secretary of Defense Lloyd Austin rescinded the military’s COVID-19 vaccination requirement. 

“Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction,” the opinion noted. 

“As Article III requires an actual controversy, we lack subject-matter jurisdiction over a case that is moot. We review mootness determinations de novo. A case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome,” according to the 10th Circuit’s decision in Smith v. Becerra

“The crucial question is whether granting a present determination of the issues offered . . . will have some effect in the real world,” the opinion noted. “No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.” 

Robert and Mulvihill sought declaratory and injunctive relief, as well as costs and attorneys’ fees. Their supplemental briefing before the 10th Circuit didn’t ask for back pay as a form of relief but did refer to Robert and Mulvihill losing opportunities and back wages due to the Department of Defense’s former COVID-19 vaccination requirement.

Their complaint asked the district court to “declare that any order issued by DoD requiring the Plaintiffs to receive inoculation with COVID-19 vaccines are per se unlawful.” According to the opinion, this claim was moot for two reasons. First, Robert and Mulvihill left military service. Mulvihill departed military service before oral argument, and Robert’s retirement was completed shortly thereafter. Robert and Mulvihill can’t be subjected to any vaccine requirement associated with service in the military because they no longer serve in the military, the court found. Thus the 10th Circuit lacked jurisdiction over Robert and Mulvihill’s moot claim.

Second, Robert’s and Mulvihill’s claim was moot because Congress passed legislation requiring the Department of Defense to rescind the COVID-19 vaccine mandate and the Secretary of Defense has since done so. Robert and Mulvihill can’t be subject to a vaccine requirement that no longer exists.

The court noted federal courts recognize two exceptions to the mootness doctrine. “[U]nder the voluntary cessation exception to mootness, a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued,” the opinion noted, citing Prison Legal News v. Fed. Bureau of Prisons. The 10th Circuit views “voluntary cessation with a critical eye, lest defendants manipulate jurisdiction to insulate their conduct from judicial review,” according to the 10th Circuit decision in Brown v. Buhman. However, “[t]he voluntary cessation exception does not apply, and a case is moot, if the defendant carries the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur,” the opinion noted from Prison Legal News v. Fed. Bureau of Prisons

The second exception is conduct capable of repetition should it evade review, according to the 10th Circuit decision in Fleming v. Gutierrez. “Under this exception, which courts reserve for exceptional situations, issues under review are not moot if they evade review because the duration of the challenged action is too short to be fully litigated prior to its cessation or expiration, and are capable of repetition, such that there is a reasonable expectation that the same complaining party will be subjected to the same action again.” 

Neither mootness exception saved this claim, the court determined. The voluntary cessation exception offered Robert and Mulvihill no relief because the government had met its burden of showing the allegedly wrongful behavior couldn’t reasonably be expected to recur. Neither did the capability of repetition but evading review exception benefit Robert and Mulvihill. The duration of the challenged action — here the Department of Defense’s past vaccine mandate as applied to Robert and Mulvihill — wasn’t too short to be fully litigated before its expiration. Furthermore, the court found nothing in the record led to a reasonable expectation they will be subjected to the same action again. 

Robert and Mulvihill are no longer actively serving in the military and the Secretary of Defense had rescinded the challenged policy. According to the 10th Circuit, this isn’t the exceptional situation the exception is designed for. 

Robert’s and Mulvihill’s injunctive relief claim asked the district court to “[e]njoin [] DoD from vaccinating any service members.” According to the 10th Circuit, this claim fared no better than the declaratory relief claim. Congress’s revocation of the Department of Defense’s vaccine mandate and its implementation of Congress’s instruction meant there was no more vaccine mandate to enjoin. The claim was therefore moot, the opinion noted.

Robert and Mulvihill requested “costs and attorneys’ fees” but failed to discuss it in their briefing before the appeals court. The 10th Circuit declined to consider Robert’s and Mulvihill’s request for costs and attorneys’ fees.

Robert’s and Mulvihill’s supplemental briefing superficially alleged they “continue[d] to lose opportunities and back[]pay” because of the rescinded vaccine mandate, according to the court. But they failed to allege lost opportunities or back pay in the district court, the opinion noted. “[A]bsent extraordinary circumstances, arguments raised for the first time on appeal are waived,” according to the 10th Circuit decision in Little v. Budd Co., Inc. “This is true whether the newly raised argument is a bald-faced new issue or a new theory on appeal that falls under the same general category as an argument presented at trial.” Robert and Mulvihill waived any argument involving lost opportunities or back pay.

The 10th Circuit dismissed the appeal as moot.

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