The legal battles over the vaccine mandates instituted by the federal government in response to the COVID-19 pandemic are still being fought today. However, following the rescission of most mandates, the strategy pursued by the Department of Justice has recently shifted to vacating prior adverse decisions. This tactic, which seeks to reset the public health legal framework to what it was prior to COVID, has achieved some success, but has also faced pushback from some judges.

Background

As the pandemic wound down in 2023, the federal government began rescinding its COVID-19 vaccine mandates. However, this did not automatically stop the hundreds of lawsuits that were filed over the past two years, nor did it undo the injunctions that were in place.

In response, in recent months the federal government has begun to seek vacatur of injunctions that were entered against federal vaccine mandates. The precedent cited has been US v. Munsingwear, Inc., a 1950 Supreme Court case that held that when a case becomes moot before appeals are exhausted, the proper action is to vacate the lower judgment and dismiss.

If vacated, the injunctions and decisions imposing them will no longer carry precedential value. This will be important in the future, if there is another public health emergency requiring the federal government to issue vaccine mandates.

Current Landscape

As of yet, these attempts by the federal government to vacate injunction orders have not been successful. On the other hand, multiple cases where the initial preliminary injunction was instead denied have been dismissed as moot and the prior rulings vacated. Cases in the Fifth Circuit (Abbott v. Biden), Sixth Circuit (Livingston Educational Service Agency v. Becerra), Ninth Circuit (Donovan v. Vance), and D.C. Circuit (Navy Seal 1 v. Austin) have seen the lower court rulings vacated and the cases dismissed as moot.

Additionally, some federal attempts to vacate adverse decisions have already been denied. In at least two cases, judges have explicitly refused to vacate the prior rulings. In U.S. Navy Seals 1-26 v. Biden, the Fifth Circuit stated that the government “has not argued, much less shown, that the public interest would be served by vacatur.” In another recent case, Doster v. Kendall, the Sixth Circuit also refused to vacate a preliminary injunction order. One judge, in a concurring statement, wrote “That a party chooses to comply with our decision is hardly a reason to vacate it.” Doster v. Kendall is still pending, with a petition for certiorari filed in August with the Supreme Court.

A petition for certiorari on the question of vacatur is also pending before the Supreme Court in Biden v. Feds for Medical Freedom. That case was initially decided in January 2022, when the District Court for the Southern District of Texas held that the federal government had likely overstepped in mandating the COVID-19 vaccine for federal employees and issued a preliminary injunction. The Fifth Circuit, en banc, affirmed the preliminary injunction in March 2023. However, shortly after this decision came down, the vaccine mandate at issue was rescinded. Accordingly, the government petitioned for certiorari, asking the Court to remand and order the district court to vacate its preliminary injunction as moot. Should the Court grant review in Feds for Medical Freedom or Doster v. Kendall, the Court’s ruling will likely affect the decisions of circuit and lower courts regarding other motions to vacate.

Non-Mooted Ongoing Litigation

Furthermore, not all the federal vaccine mandate cases are moot. While in most of the federal vaccine cases the plaintiffs were placed on leave from their jobs while the litigation played out, in some cases individuals were terminated for failing to receive the COVID-19 vaccine. In such cases, like Schelske v. Austin, the matter is not actually moot because the individual suffered an injury in fact, loss of wages. These claims will continue to play out, unaffected by the rescission of the mandates.