Professional Documents
Culture Documents
U.S. Service Member Complaint
U.S. Service Member Complaint
COMPLAINT
Plaintiff Air Force Officer, for her Complaint against the Defendants, hereby states as
follows:
INTRODUCTION
1. Defendants are trying to force Plaintiff and thousands of other service members to
submit to being injected with a COVID-19 vaccine against their sincerely held religious beliefs.
employee COVID-19 vaccine mandates because they violate her and others’ sincerely held
religious beliefs.
vaccinated, Plaintiff contracted COVID-19 in 2020 and remains naturally immune to it, and
Plaintiff has been willing and able and remains willing and able to work remotely, wear a mask,
1
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 2 of 31
4. But in December 2021 the Air Force issued a final denial of Plaintiff’s October
5. Defendants have not granted any service member any request for religious
accommodation.
6. This action is based upon the Religious Freedom Restoration Act of 1993 (RFRA)
and the First Amendment to the United States Constitution, both of which protect Plaintiff’s
7. This action is also based on the Administrative Procedure Act, which protects
facially for lack of exception for any religious exercise, and as applied to Plaintiff in denying her
9. Defendants’ orders, policies, and actions deprived and will continue to deprive
Plaintiff and other religious service members of their paramount rights and guarantees under
federal law, including under RFRA, the Administrative Procedure Act, and the United States
Constitution.
10. Defendants committed each and every act alleged herein under the color of law
and authority.
this action arises under the United States Constitution and federal law.
12. The Court also has jurisdiction under 28 U.S.C. § 1346 because this is a civil
2
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 3 of 31
13. The Court also has jurisdiction under 28 U.S.C. § 1361 to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the Plaintiff.
14. The Court also has jurisdiction pursuant to 42 U.S.C. § 2000bb-1(c) because
Plaintiff’s religious exercise and that of other service members have been burdened by
Defendants.
15. The Court also has jurisdiction to review and enjoin ultra vires or unconstitutional
16. This Court has authority to award the requested relief pursuant to 42 U.S.C. §
2000bb-1; the requested declaratory relief pursuant to 28 U.S.C. §§ 2201-02; the requested
injunctive relief pursuant to 5 U.S.C. § 702 and 28 U.S.C. § 2202; and costs and attorneys’ fees
Defendants are officers and employees of the United States, and the military workplace and the
location in which a substantial part of the events or omissions giving rise to Plaintiff’s claims
occurred are in Houston County, Georgia, within the District of this Court.
PARTIES
18. Plaintiff is an Officer in the United States Air Force.
19. Plaintiff prefers not to disclose her name in a public proceeding because she has a
20. Defendant Lloyd J. Austin, III, is the Secretary of the United States Department of
21. Defendant Frank Kendall, III, is the Secretary of the United States Air Force.
3
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 4 of 31
22. Defendant Robert I. Miller is the Surgeon General of the United States Air Force.
FACTUAL BACKGROUND
The COVID-19 Vaccine Mandates at Issue
23. On August 24, 2021, Secretary Austin issued a mandate for all service members
of the Armed Forces under Department of Defense authority on active duty or in the Ready
24. The DoD Military Mandate states in part that “Military Departments should use
existing policies and procedures to manage mandatory vaccination of Service members to the
extent practicable.”
25. At the time of issuance of the DoD Military Mandate, Air Force Instruction (AFI)
48-110, Immunizations and Chemoprophylaxis for the Prevention of Infectious Disease, dated
February 16, 2018, was an existing policy and procedure of the Air Force and remains a policy
27. AFI 48-110 states in part: “General examples of medical exemptions include the
following… (b) Evidence of immunity based on serologic tests, documented infection, or similar
circumstances.”
28. Other branches of the military have policies and procedures identical to AFI 48-
110: Army 40-562; Navy BUMEDINST 6230.15B; and Coast Guard COMDTINST M6230.4G.
29. The DoD Military Mandate further states in part, “Those with previous COVID-
30. The DoD Military Mandate further states in part, “Service members who are
actively participating in COVID-19 clinical trials are exempted from mandatory vaccination
4
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 5 of 31
against COVID-19 until the trial is complete in order to avoid invalidating such clinical trial
results.”
31. On September 3, 2021, Secretary Kendall issued a mandate for all active duty
service members of the Air Force, “unless exempted,” to be fully vaccinated by November 2,
2021, and for all Reserve service members, “unless exempted,” to be fully vaccinated by
32. The Air Force Military Mandate states in part, “Individuals with previous
COVID-19 infection or positive serology are not considered vaccinated and are not exempt.”
33. On September 9, 2021, President Biden issued Executive Order 14043, in which
the President directed certain Executive Agencies to implement programs to require COVID-19
vaccination for its federal civilian employees, “with exceptions only as required by law”
34. The federal Department of Health and Human Services (HHS), cited as authority
in Executive Order 14043, and the Centers for Medicare & Medicaid Services (CMS) issued a
COVID-19 regulation recognizing that the vaccinated and those who “have recovered from
35. On September 21, 2021, a Deputy Commander of the Air Force issued an order to
Plaintiff stating in part, “I am ordering you to receive an initial dose of a COVID-19 vaccine…
by 28 October 2021. Additionally, you are ordered to receive the second dose of the same
vaccine AND provide proof by 18 November 2021” (“Air Force Military Order to Plaintiff”).
mandate for all Department of Defense civilian employees to be fully vaccinated by November
5
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 6 of 31
37. The DoD Civilian Mandate states in part, “Those with previous COVID-19
infection(s) or previous serology are not considered fully vaccinated on that basis for the
38. On October 8, 2021, Secretary Kendall issued a mandate for all civilian
employees of the Air Force to be fully vaccinated by November 22, 2021 “unless exempted”
39. The Air Force Civilian Mandate states in part, “Individuals with previous
COVID-19 infection or positive serology are not considered vaccinated and are not exempt.”
40. The DoD Military Mandate, Air Force Military Mandate, President’s Federal
Employee Mandate, Air Force Military Order to Plaintiff, DoD Civilian Mandate, and Air Force
Force.
42. The military has awarded Plaintiff numerous medals, including the Defense
Meritorious Service Medal, Meritorious Service Medals, the Air Force Commendation Medal,
43. The Air Force has never disciplined her, and has never had cause to discipline her,
44. For years, Plaintiff has served in an administrative position in the Air Force
Reserves.
45. Plaintiff’s position is not one that would be tasked to deploy or that engages in
6
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 7 of 31
46. Plaintiff is both a military employee and a federal civilian employee, and in both
48. Over her many years of service, Plaintiff has held key positions of responsibility,
implemented critical health and safety programs, educated and developed numerous other
leaders, and built trust and goodwill among fellow service members, all in the interest of military
49. When the military in 2020 began imposing COVID-19 restrictions on personnel—
including masking, social distancing, and working remotely—Plaintiff followed and led others to
50. Plaintiff has consistently and fully supported and sustained Defendants’ interests
in military readiness, unit cohesion, good order, discipline, health, and safety.
52. As a Christian, Plaintiff believes that abortion is a grave evil and contrary to her
faith.
53. Plaintiff sincerely believes that receiving a vaccine that was derived from or
tested on aborted fetal tissue in its development would violate her conscience and is contrary to
her faith.
54. All of the COVID-19 vaccines currently available were derived from or tested on
(as part of their development) aborted fetal tissue. For this reason, she is unwilling to receive
7
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 8 of 31
55. In addition, in accordance with her faith, Plaintiff believes that her “body is the
temple of the Holy Spirit” (1 Cor. 6:19-20), and that injection with a novel substance of
COVID-19.
60. In January 2021, Plaintiff took a COVID-19 antibody test and tested positive for
COVID-19 antibodies.
61. In December 2021, Plaintiff took a COVID-19 antibody test and tested positive
63. The Military Request Form provides in part that a service member requesting a
religious accommodation will certify, “I am making an informed decision and fully understand
international travel.”
Immunizations and Chemoprophylaxis for the Prevention of Infectious Disease” among other
8
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 9 of 31
65. On October 13, 2021, using the Military Request Form, Plaintiff timely submitted
66. On October 27, 2021, Plaintiff received a denial (dated October 26) of her
October 13 request for religious accommodation. The denial letter stated, “I do not doubt the
sincerity of your beliefs.” The denial letter further stated that “less restrictive means of
protecting our force from COVID-19 are unavailable.” The denial letter did not mention, and
did not request additional information about, Plaintiff’s individual circumstances relevant to
67. On October 29, 2021, Plaintiff timely appealed the October 27 denial of her
68. In October 2021, Defendants issued a form Request for Religious Exemption to
69. On November 8, 2021, using the Civilian Request Form, Plaintiff timely
71. The Final Denial stated in part: “Your final appeal is denied.”
72. The Final Denial further stated in part: “The Department of the Air Force has a
compelling government interest in requiring you to comply with the COVID-19 immunization
requirement because preventing the spread of disease among the force is vital to mission
accomplishment…. Foregoing the above immunization requirement would have a real adverse
impact on military readiness and public health and safety. There are no less restrictive means in
9
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 10 of 31
73. The Final Denial made no mention of Plaintiff’s natural immunity, which the Air
74. The Final Denial made no mention of AFI 48-110 or HHS/CMS vaccine
75. Upon her December 6, 2021, receipt of the Final Denial, the Air Force gave
Plaintiff five days to make a choice among three options: “(1) take the vaccine,” “(2) submit
retirement request if eligible” with retirement effective in the spring of 2022, or “(3) refuse
vaccine in writing.” The Air Force further told her that “refusal to receive the vaccine… may be
punishable under the Uniform Code of Military Justice (UCMJ)” and that “[c]ontinued refusal
will result in involuntary reassignment to the IRR [Individual Ready Reserve]” without pay,
76. Plaintiff wants to continue her work, but, faced with these three options, on
December 11, 2021, Plaintiff submitted an early retirement request, under protest.
77. Based on the information Plaintiff received from Defendants, the effective date of
78. Plaintiff was and is willing to perform her work at the highest level and to take
regular COVID-19 tests when working in-person on the base, wear a mask, socially distance, and
79. Until the putative effective date of her forced early retirement in the spring of
2022, and pending adjudication of her civilian request for accommodation, as a military service
member Plaintiff is still permitted to work on the base and to perform her normal work duties—
10
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 11 of 31
still unvaccinated—provided she take regular COVID-19 tests when working in-person, wear a
80. During the period since December 11, 2021, Plaintiff has worked on the base
and performed her normal work duties. During this time Plaintiff has taken COVID-19 tests,
81. Service members with approved medical accommodations are permitted to work
in person—presumably as long as they take COVID-19 tests, test negative, wear a mask, and
82. Unlike those with medical accommodations and clinical-trial participants, and
despite posing the same (or less, given her natural immunity) risk than they do, Plaintiff’s refusal
to be vaccinated cost Plaintiff her right to future employment (beyond her forced retirement
date).
83. By refusing to take the COVID-19 vaccine, being forced into early retirement,
and losing her Air Force position, Plaintiff stands to lose more than a million dollars in salary
and benefits. Plaintiff planned to rely on this compensation in retirement in due course.
84. While the military has issued a final denial of Plaintiff’s military requests for
accommodation, her civilian request for accommodation is still pending. Plaintiff has not been
86. Plaintiff has been advised that there is no opportunity to appeal a civilian denial,
11
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 12 of 31
87. Plaintiff reasonably expects that the Air Force will deny her civilian request,
because Defendants have denied all COVID-19 vaccine religious accommodation requests of all
88. The military has not informed Plaintiff what the impact of a denial of the civilian
request would have on her employment which is both military and civilian, including whether
she will be separated immediately or whether the terms of her forced early retirement in the
89. Fidelity to her religious beliefs is more important to Plaintiff than her career and
compensation, but the Constitution prohibits Defendants from forcing her to choose between her
90. The Mandates have lowered Plaintiff’s morale as a service member, because they
have forced her to choose between her sincerely held religious beliefs and her livelihood. The
Mandates have lowered the morale of other service members for the same reasons.
92. RFRA states that the government shall not substantially burden a person’s
93. RFRA protects any exercise of religion, whether or not compelled by, or central
94. The exercise of religion involves not only belief and profession but the
performance of (or abstention from) physical acts that are engaged in for religious reasons.
12
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 13 of 31
95. The Mandates explicitly acknowledge that RFRA protects Department of Defense
Exercise of Religion
96. Plaintiff sincerely believes that the exercise of her religion prevents her from
97. Defendants acknowledge the sincerity and reasonableness of Plaintiff’s belief that
98. More than 4,000 other Air Force service members share Plaintiff’s religious
99. The government and reviewing courts may not question whether sincerely held
Substantial Burden
100. RFRA imposes strict scrutiny on all actions of the federal government that
imposes substantial pressure on an adherent to modify his or her behavior and to violate his or
her beliefs.
102. The Mandates impose on Plaintiff and all service members whose religious
exercise prevents vaccination for COVID-19 the choice between violating their religious beliefs
103. Forcing a person to violate her religious beliefs or lose her employment is a
13
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 14 of 31
104. According to the Military Request Form, making a “request” for a religious
105. These adverse impacts can have permanent and lasting effects on the careers of
service members.
106. These adverse impacts, currently being imposed on more than 4,000 service
members in the Air Force alone, impose substantial pressure on each religious objector to
vaccination to modify his or her behavior and to violate his or her beliefs.
Strict Scrutiny
107. Under RFRA, the Mandates are subject to strict scrutiny because they impose the
above substantial burdens on the religious exercise of service members. 42 U.S.C. § 200bb-1(b).
108. Strict scrutiny requires that, before imposing a substantial burden on a person’s
exercise of religion, the government must demonstrate that application of the burden to the
person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive
109. The Mandates fail strict scrutiny, both as applied to Plaintiff and facially as
No Compelling Interest
110. Defendants may not rely on generalized or broadly formulated interests to justify
requiring Plaintiff or any service member to receive the COVID-19 vaccine in violation of her
religious beliefs.
111. Defendants must establish that they have a compelling governmental interest in
14
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 15 of 31
113. The October 2021 letter denying Plaintiff a religious accommodation cited only
generalized interests, present in every case, of “military readiness, unit cohesion, good order, and
discipline.”
circumstances.
118. Although the Mandates invite service members to apply for religious exemptions,
the enforcement record shows that Defendants have adopted a policy of denying all religious
accommodations.
119. RFRA requires that Defendants grant accommodation in every case where
establish that denying every possible religious accommodation passes strict scrutiny.
15
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 16 of 31
practice when a government measure leaves appreciable damage to that supposedly vital interest
unprohibited.
administrative reasons.
124. Allowance of accommodations for reasons other than religious ones demonstrates
that Defendants can tolerate the risk posed by some service members remaining unvaccinated.
125. Defendants’ delay in imposing the Mandates also belies any claim that their
126. The Mandates were issued months after vaccines became available and months
after the Department of Justice formally advised that government entities could impose
mandatory vaccination requirements. U.S. Dep’t of Justice, Office of Legal Counsel, “Whether
Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a
https://www.justice.gov/olc/file/1415446/download.
127. In the months since vaccinations were introduced, risk of transmission among
service members have greatly decreased due to voluntary vaccination and infection rates. Any
128. Defendants have not and cannot establish a compelling interest in a military or
Air Force-wide policy of denying religious accommodations to the Mandates, because RFRA
requires that Defendants show a compelling interest to refuse each individual’s accommodation
in particular, and because Defendants delayed the Mandates for months and then granted
16
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 17 of 31
the government to show it lacks other means of achieving its desired goal.
130. So long as the government can achieve its interests in a manner that does not
131. This standard requires Defendants to show that measures less restrictive of the
First Amendment activity could not address its interest in reducing the spread of COVID.
132. Requiring Plaintiff to be vaccinated against COVID-19 is not the least restrictive
133. Plaintiff has worked successfully for the Air Force, fulfilling her job
responsibilities completely, throughout the pandemic, including while vaccines have been
available.
explanation of why she cannot continue to fulfill her duties in many of the ways implemented
135. The Air Force stated, without explanation, that Plaintiff’s work cannot be
accommodated with the use of distancing measures, remote work, masking, hygiene
requirements, and regular testing, while those with medical and administrative accommodations
and clinical-trial participants are permitted to work with such measures in place.
136. Defendants have not shown that accommodating Plaintiff remaining unvaccinated
would increase their costs in any degree, given the continued presence of medically
accommodated unvaccinated service members and the exemption for clinical-trial participants.
17
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 18 of 31
vaccinated cannot be the least restrictive means of preventing the spread of COVID-19.
138. At the very least, Defendants have an obligation to demonstrate that universal
vaccination—except for medical and administrative accommodation and exemption for clinical-
trial participation—is the least restrictive way of pursuing their interests. That requires
demonstrating why other paths to the same goal are inferior, which Defendants cannot do.
139. Vaccinating someone with natural immunity, like Plaintiff, does not minimize the
140. Not only is mandatory vaccination in Plaintiff’s case not the least restrictive
means of serving Defendants’ interest in limiting the spread of COVID, vaccination does not
141. The denial of all service members’ religious accommodations is not the least
separation of thousands of service members including more than 4,000 service members from the
the interests of “military readiness, unit cohesion, good order, and discipline.” These are not
144. Even if they were sufficiently compelling interests to satisfy strict scrutiny,
Defendants have not demonstrated, and cannot demonstrate, that their interests in “military
readiness, unit cohesion, good order, and discipline” would be served, rather than harmed, by
18
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 19 of 31
145. To survive strict scrutiny, Defendants must show that separating thousands of
religious objectors from the military, with concomitant loss of trained personnel and enormous
administrative burden, better serves Defendants’ interests than accommodating these same
146. In Plaintiff’s case, accommodating her continued service has little or no marginal
147. Plaintiff’s forced early retirement causes the Air Force administrative difficulty,
along with the impact of losing a service member of her seniority in some of her most productive
years of service.
148. A blanket policy of denying religious accommodations and ending the careers
thousands of service members cannot credibly be described as the least restrictive means of
149. The Mandates are also not the least restrictive means to serve Defendants’ interest
in reducing the spread of COVID-19 or increasing the safety of service members, because it is by
no means settled that the vaccinations Defendants insist upon actually do add to the safety of the
service members.
150. Defendants’ policy of denying all religious accommodation requests no matter the
circumstances is vastly out of step with policies in the rest of the country, including in the
countless workplaces across the country that currently provide religious accommodations
151. Defendants cannot establish that the Mandates are the least restrictive means of
RFRA relief
19
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 20 of 31
152. Defendants’ Mandates violate Plaintiff’s rights and the rights of her fellow service
153. Because of Defendants’ policy and actions, Plaintiff has suffered irreparable harm
and has suffered and/or will suffer economic injury. She is entitled to an award of monetary
154. Plaintiff is entitled to a declaration that Defendants violated her rights under
RFRA to the free exercise of religion and an order restraining and enjoining Defendants from
denying Plaintiff’s requests for religious accommodation, from forcing her to retire or separate
from the military, and from taking any other adverse action against her based on her
by the evidence and this Court and the reasonable costs of this lawsuit, including her reasonable
attorneys’ fees.
155. Plaintiff repeats and re-alleges each of the allegations contained in the foregoing
Exercise of Religion
156. Plaintiff sincerely believes that the exercise of her religion prevents her from
157. Defendants acknowledges the sincerity of Plaintiff’s belief that her exercise of
20
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 21 of 31
159. The government and reviewing courts may not question whether sincerely held
160. The First Amendment’s Free Exercise Clause prohibits the government from
enacting laws burdening religious exercise that are not both neutral and generally applicable,
161. A law that is not neutral or not generally applicable and burdens religious exercise
163. A law is not generally applicable if it prohibits religious conduct while permitting
secular conduct that undermines the government’s asserted interests in a similar way.
164. The Mandates allow service members to remain unvaccinated for medical and
administrative reasons or if they participate in a clinical trial while disallowing service members
165. Even assuming Plaintiff poses a risk, any risk she poses would be no greater than
166. Since Defendants accept a risk from people who are unvaccinated for secular
reasons but not from people with religious reasons, the Mandates are not generally applicable.
particular circumstances, the government may not refuse to grant accommodations on the basis
of religious hardship.
168. The Mandates invite service members to apply for accommodations from the
vaccine mandate on the basis of several individualized situations, including religious belief.
21
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 22 of 31
administrative circumstances and exemptions for clinical-trial participation are available, but
administrative accommodations.
reasons but not on the basis of religious belief is not generally applicable.
Strict Scrutiny
173. A law that is not neutral or not generally applicable and burdens religious exercise
174. The Mandates fail strict scrutiny, both as applied to Plaintiff and as applied to all
service members.
No Compelling Interest
175. Defendants may not rely on generalized or broadly formulated interests to justify
requiring Plaintiff or any service member to receive the COVID-19 vaccine in violation of her
religious beliefs.
176. Defendants must establish that they have a compelling governmental interest in
22
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 23 of 31
the Mandates cited only generalized interests, present in every case, of “military readiness, unit
182. Plaintiff has effectively fulfilled her service responsibilities throughout the
pandemic without putting anyone at risk, even while actually infected with COVID-19.
Plaintiff an accommodation, and they can identify nothing to support a compelling interest in
184. Nor can Defendants establish a compelling interest in denying all religious
practice when a government measure leaves appreciable damage to that supposedly vital interest
unprohibited.
187. Allowance of exceptions for other reasons demonstrates that Defendants can
tolerate the risk posed by some service members remaining unvaccinated. Defendants cannot
23
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 24 of 31
simultaneously claim they have a compelling interest in denying accommodations to the same
188. Defendants’ delay in imposing the Mandates also belies any claim that their
189. The Mandates were issued months after vaccines became available and months
after the Department of Justice formally advised that government entities could impose
mandatory vaccination requirements. U.S. Dep’t of Justice, Office of Legal Counsel, “Whether
Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a
https://www.justice.gov/olc/file/1415446/download.
190. In the months since vaccinations were introduced, risk of transmission among
service members has greatly decreased due to voluntary vaccination and infection rates. Any
191. Defendants have not and cannot establish a compelling interest in a military or
Air Force-wide policy of denying religious accommodations to the Mandates, because delaying
the Mandates for months and granting accommodations for secular, but not religious, reasons
both demonstrate that the Mandates do not serve a truly compelling governmental interest.
the government to show it lacks other means of achieving its desired goal.
193. So long as the government can achieve its interests in a manner that does not
24
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 25 of 31
194. This standard requires Defendants to show that measures less restrictive of the
First Amendment activity could not address its interest in reducing the spread of COVID-19.
195. Requiring Plaintiff to be vaccinated against COVID-19 is not the least restrictive
196. Plaintiff has worked for the Air Force diligently, fulfilling her job responsibilities
completely, throughout the pandemic, including while vaccines have been available.
explanation of why she cannot continue to fulfill her duties in many of the ways implemented
198. Defendants do not and cannot explain why Plaintiff’s work cannot be
accommodated with the use of distancing measures, remote work, masking, hygiene
requirements, and regular testing, while those with medical and administrative accommodations
and clinical-trial participants are permitted to work with such measures in place.
199. Defendants have not shown that accommodating Plaintiff remaining unvaccinated
would increase their costs in any degree, given the allowance for medical and administrative
vaccinated cannot be the least restrictive means of preventing the spread of COVID-19.
201. At the very least, Defendants have an obligation to demonstrate that universal
vaccination—except for medical and administrative accommodation and exemption for clinical-
trial participation—is the least restrictive way of pursuing their interests. That requires
demonstrating why other paths to the same goal are inferior, which Defendants cannot do.
25
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 26 of 31
202. Vaccinating someone with natural immunity, like Plaintiff, does not minimize the
203. Not only is mandatory vaccination in her case not the “least restrictive means” of
serving Defendants’ interest in limiting the spread of COVID-19, vaccination does not to serve
204. Nor is the denial of all religious accommodations the least restrictive means to
separation of thousands of service members including more than 4,000 service members from the
the interests of “military readiness, unit cohesion, good order, and discipline.” These are not
207. Even if they were sufficiently compelling interests to satisfy strict scrutiny,
Defendants have not demonstrated, and cannot demonstrate, that their interests in “military
readiness, unit cohesion, good order, and discipline” would be served, rather than harmed, by
208. To survive strict scrutiny, Defendants must show that separating the thousands of
religious objectors from the military, with concomitant loss of trained personnel and enormous
administrative burden, better serves the military’s interests than accommodating these same
cost to Defendants.
26
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 27 of 31
210. Plaintiff’s forced early retirement causes the Air Force administrative difficulty,
along with the impact of losing a service member of her seniority in some of her most productive
years of service.
211. A blanket policy of denying religious accommodations and ending the careers of
thousands of service members, including more than 4,000 Air Force service members alone,
cannot credibly be described as the least restrictive means of serving the interests Defendants
have identified.
212. The Mandates are also not the least restrictive means to serve Defendants’ interest
in reducing the spread of COVID-19 or increasing the safety of service members, because it is by
no means settled that the vaccinations Defendants insist upon actually do add to the safety of the
service members.
213. To identify whether Defendants have employed the least restrictive means, courts
look to whether other jurisdictions have addressed the same interests in less restrictive ways.
214. Defendants’ policy of denying all religious accommodation requests no matter the
circumstances is vastly out of step with policies in the rest of the country, including in the
countless workplaces across the country that currently provide religious accommodations
215. Defendants cannot establish that the Mandates are the least restrictive means of
216. Accordingly, Defendants’ Mandates violate Plaintiff’s rights and the rights of her
fellow service members under the First Amendment to the United States Constitution.
27
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 28 of 31
217. Because of Defendants’ policy and actions, Plaintiff has suffered irreparable harm
and has suffered and/or will suffer economic injury. She is entitled to an award of monetary
218. Plaintiff is entitled to a declaration that Defendants violated her rights under the
First Amendment to the free exercise of religion and an order restraining and enjoining
Defendants from denying Plaintiff’s requests for religious accommodation, from forcing her to
retire or separate from the military, and from taking any other adverse action against her based
219. Plaintiff repeats and re-alleges each of the allegations contained in the foregoing
220. Under the Administrative Procedure Act (“APA”), a court shall “hold unlawful
and set aside” any agency action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law” or “without observance of procedure required by law.” 5
221. The Department of Defense and the branches of the military, including the Air
Force, Navy, Army, and Marines, are “agencies” under the APA. 5 U.S.C. § 551(1).
222. The Mandates are each a “rule” under the APA reviewable under the APA. 5
U.S.C. § 551(4).
223. Defendants’ wrongful actions are “agency actions” reviewable under the APA. 5
28
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 29 of 31
224. With their Mandates, Defendants wrongfully denied Plaintiff and other service
members the opportunity to seek, under AFI 48-110, a medical exemption based on their natural
immunity.
225. The Court should hold unlawful and set aside the Mandates, because they are
arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and without
1. a declaratory judgment that the Mandates violate Plaintiff’s rights under the First
2. a declaratory judgment that the Mandates violate Plaintiff’s rights under the Religious
3. a declaratory judgment that the Mandates violate Plaintiff’s rights under the
prohibiting Defendants, their agents, officials, servants, employees, and any other
persons acting in concert with them from enforcing the Mandates challenged in this
Complaint and directing such other and further relief as requested in the motion for
5. an order declaring unlawful and setting aside the Mandates challenged in this
Complaint;
29
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 30 of 31
6. actual damages in the amount of pay and benefits Plaintiff will lose as a result of
Act;
7. nominal damages against Defendants in their individual capacities for the violation of
8. Plaintiff’s reasonable attorneys’ fees, costs, and other costs and disbursements in this
30
Case 5:22-cv-00009-TES Document 1 Filed 01/06/22 Page 31 of 31
Respectfully submitted,
Adam S. Hochschild*
Hochschild Law Firm
THOMAS MORE SOCIETY – Special Counsel
PO Box 401
Plainfield, VT 05667
(314)503-0326
[email protected]
Michael McHale*
THOMAS MORE SOCIETY – Counsel
20374 Magnolia Rd.
Crescent, IA 51526
(712)545-9433
[email protected]
31