Kristin Mayes v. Joseph Biden ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN K. MAYES; STATE OF No. 22-15518
ARIZONA; AL REBLE; PHOENIX
LAW ENFORCEMENT D.C. No. 2:21-cv-
ASSOCIATION; UNITED PHOENIX 01568-MTL
FIREFIGHTERS ASSOCIATION
LOCAL 493,
ORDER
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, in his official
capacity as President of the United
States; ALEJANDRO N.
MAYORKAS, in his official capacity
as Secretary of Homeland Security;
U.S. DEPARTMENT OF
HOMELAND SECURITY; TROY A.
MILLER, in his official capacity as
Senior Official Performing the Duties
of the Commissioner of US Customs
and Border Protection; TAE
JOHNSON, in his official capacity as
Senior Official Performing the Duties
of Director of US Immigration and
Customs Enforcement; UR
MENDOZA JADDOU, in her official
2 MAYES V. BIDEN
capacity as Director of US Citizenship
and Immigration Services; OFFICE
OF PERSONNEL MANAGEMENT;
KIRAN AHUJA, in her official
capacity as director of the Office of
Personnel Management and as co-
chair of the Safer Federal Workforce
Task Force; UNITED STATES
GENERAL SERVICES
ADMINISTRATION; SHALANDA
YOUNG, in her official capacity as
Acting Director of the Office of
Management and Budget and as a
member of the Safer Federal
Workforce Task Force; SAFER
FEDERAL WORKFORCE TASK
FORCE; JEFFREY ZIENTS, in his
official capacity as co-chair of the
Safer Federal Workforce Task Force
and COVID-19 Response Coordinator;
L. ERIC PATTERSON, in his official
capacity as Director of the Federal
Protective Service and member of the
SFWTF; JAMES M. MURRAY, in his
official capacity as Director of the
United States Secret Service and
member of the SFWTF; DEANNE
CRISWELL, in her official capacity as
Director of the Federal Emergency
Management Agency and member of
the SFWTF; ROCHELLE
WALENSKY, in her official capacity
as Director of the Centers for Disease
MAYES V. BIDEN 3
Control and Prevention and member of
the SFWTF; CENTERS FOR
DISEASE CONTROL AND
PREVENTION; FEDERAL
ACQUISITION REGULATORY
COUNCIL; MATHEW C. BLUM, in
his official capacity as Chair of the
Federal Acquisition Regulatory
Council and Acting Administrator of
the Office of Federal Procurement
Policy, Office of Management and
Budget; LESLEY A. FIELD, in her
official capacity as a member of the
Federal Acquisition Regulatory
Council and Acting Administrator for
Federal Procurement at the Office of
Federal Procurement Policy, Office of
Management and Budget; KARLA S.
JACKSON, in her official capacity as
a member of the Federal Acquisition
Regulatory Council and Assistant
Administrator for Procurement at the
National Aeronautics and Space
Administration; JEFFREY A. KOSES,
in his official capacity as a member of
the Federal Acquisition Regulatory
Council and Senior Procurement
Executive at the General Services
Administration; JOHN M.
TENAGLIA, in his official capacity as
a member of the Federal Acquisition
Regulatory Council and Principal
Director of Defense Pricing and
4 MAYES V. BIDEN
Contracting at the Department of
Defense; UNITED STATES OF
AMERICA; UNITED STATES
DEPARTMENT OF JUSTICE;
MERRICK B. GARLAND, Attorney
General, in his official capacity as
Attorney General of the United States,
Defendants-Appellants,
______________________________
ARIZONA CHAMBER OF
COMMERCE & INDUSTRY;
FIFTY-SIXTH ARIZONA
LEGISLATURE,
Intervenors.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Argued and Submitted March 7, 2023
Las Vegas, Nevada
Filed December 28, 2023
Before: Richard R. Clifton, Mark J. Bennett, and Roopali
H. Desai, Circuit Judges.
MAYES V. BIDEN 5
SUMMARY *
Mootness
The panel (1) vacated as moot this court’s April 19,
2023, opinion concerning President Biden’s Contractor
Mandate and Executive Order 14042, which was
subsequently rescinded; (2) dismissed this appeal; and (3)
remanded to the district court with instructions to vacate the
portion of the orders on appeal addressing all claims based
on the Contractor Mandate.
COUNSEL
David L. Peters (argued), Anna O. Mohan, and Mark B.
Stern, Appellate Staff Attorneys, Civil Division; Joshua
Revesz, Office of the Attorney General Counsel; Shraddha
A. Upadhyaya, Associate General Counsel, Office of
Management and Budget; Arpit K. Garg, Deputy General
Counsel; Daniel F. Jacobson, General Counsel; Brian M.
Boynton, Principal Deputy Assistant Attorney General; for
Defendant- Appellants.
Alexander W. Samuels (argued), Principal Deputy Solicitor
General; James K. Rogers, Senior Litigation Counsel; Drew
C. Ensign, Deputy Solicitor General; Kristin K. Mayes,
Arizona Attorney General; Joseph A. Kanefield, Chief
Deputy and Chief of Staff; for Plaintiff-Appellees.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
6 MAYES V. BIDEN
Kory Langhofer and Thomas Basile, Statecraft PLLC,
Phoenix, Arizona; Michael Bailey, Arizona Chamber of
Commerce & Industry, Phoenix, Arizona; for Intervenors
Fifty-Sixth Legislature and Arizona Chamber of Commerce
& Industry.
ORDER
On April 19, 2023, this court issued its opinion in which
it reversed and vacated the district court’s grant of a
permanent injunction, which had enjoined President Biden’s
“Contractor Mandate,” including Executive Order 14042.
Mayes v. Biden, 67 F.4th 921, 946 (9th Cir. 2023); 1 see also
Executive Order 14042, Ensuring Adequate COVID Safety
Protocols for Federal Contractors, 86 Fed. Reg. 50,985(Sept. 14, 2021).
On May 9, 2023, after we issued our opinion but before
the mandate issued, President Biden rescinded Executive
Order 14042. See Executive Order 14099, Moving Beyond
COVID-19 Vaccination Requirements for Federal Workers,
88 Fed. Reg. 30,891 (May 15, 2023). On June 15, 2023,
because a judge of this court called for a vote to determine
whether this case should be reheard en banc, the court
directed the parties to file simultaneous briefs. The case
remains pending.
On December 11, 2023, the Supreme Court vacated as
moot the judgment in three cases concerning vaccine
mandates, where the common issue was whether the
judgment below should be vacated for mootness under
1
Following argument, we had stayed the injunction pending resolution
of the appeal.
MAYES V. BIDEN 7
United States v. Munsingwear, Inc., 340 U.S. 36 (1950). See
Payne v. Biden, No. 22-1225, 2023 WL 8531836 (U.S. Dec.
11, 2023) (Mem.) (“The judgment is vacated, and the case is
remanded to the United States Court of Appeals for the
District of Columbia Circuit with instructions to dismiss the
case as moot.”); Biden v. Feds for Med. Freedom, No. 23-
60, 2023 WL 8531839 (U.S. Dec. 11, 2023) (Mem.) (“The
judgment is vacated, and the case is remanded to the United
States Court of Appeals for the Fifth Circuit with
instructions to direct the District Court to vacate as moot its
order granting a preliminary injunction.”); Kendall v.
Doster, No. 23-154, 2023 WL 8531840 (U.S. Dec. 11, 2023)
(Mem.) (“The judgment is vacated, and the case is remanded
to the United States Court of Appeals for the Sixth Circuit
with instructions to direct the District Court to vacate as
moot its preliminary injunctions.”).
In accordance with Payne, Feds for Medical Freedom,
and Doster, it is hereby ORDERED (1) that the opinion of
this court, 67 F.4th 921, is vacated as moot and this appeal
is dismissed; 2 and (2) that this case is remanded with
instructions to vacate the portion of the orders on appeal
addressing all claims based on the Contractor Mandate.
2
We have an independent duty to consider mootness sua sponte. See
Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004).