In response to the COVID-19 pandemic, the Secretary of Defense in 2021 issued a mandate directing each military branch to begin vaccinating active and reserve service members. Several active-duty service members, including Nicholas Bassen, were discharged for their refusal to comply with the mandate. Following a Congressional order, the Secretary in 2022 rescinded the mandate, but the discharged service members were not reinstated.
With nine other discharged members of the military, Bassen sued the United States in the U.S. Court of Federal Claims, primarily asserting violations of the 2023 National Defense Authorization Act (under which the Secretary had issued the mandate recission), the Emergency Use Product Act, and the Religious Freedom Restoration Act. The Government filed a motion to dismiss under Rule 12(b)(1) and 12(b)(6). The Court granted the motion for the National Defense Authorization Act claim, as well as the plaintiffs’ illegal exaction and correction of military records claims, but denied the motion for the remaining claims.
While the case was still pending, President Trump in 2025 issued Executive Order 14184, directing the Secretary of Defense to reinstate all members of the military discharged for refusal to take the COVID-19 vaccine. In compliance with this Executive Order, the United States filed a motion for a voluntary remand to the relevant military boards, citing an intervening event that may affect the validity of the agency actions. Bassen objected, claiming an Executive Order is not an intervening event outside of the agency’s control since actions of the President and actions of the Secretary are both actions of the Executive Branch.
The Court disagreed, holding that the Executive Order is an intervening event that supports granting the motion for a voluntary remand, and explaining that an “agency may seek a remand because of intervening events outside of the agency’s control, for example, a new legal decision or the passage of new legislation.” When an agency makes such a request, “[a] remand is generally required if the intervening event may affect the validity of the agency action.”
The Court found there was “no question” this Executive Order may affect the validity of the Army, Air Force, and Marine Corps actions because the Order invalidates the Department of Defense policy that plaintiffs are challenging.
Read the full decision here.
