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Doster VKendall PIOrder
Doster VKendall PIOrder
V.
Defendants.
This matter is before the Court on Plaintiffs' Motion for a Preliminary Injunction
(Doc. 13). Defendants filed a response in opposition to Plaintiffs' Motion (Doc. 27), to
which Plaintiffs replied (Doc. 30). Additionally, the Court held a preliminary injunction
hearing on March 25, 2022. Thus, the motion is fully briefed and ripe for review. As
I. RELIGIOUS LIBERTY
"For centuries now, people have come to this country from every corner of the
world to share in the blessing of religious freedom. Our Constitution promises that they
may worship in their own way, without fear of penalty or danger, and that in itself is a
momentous offering." Town of Greece, N. Y. v. Galloway, 572 U.S. 565,615 (2014) (Kagan, J.,
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and the shutdown of most of the world. While a return to normalcy is desired, the cost
of the return should never jeopardize religious liberty. As Justice Gorsuch recently
explained, "Even if the Constitution has taken a holiday during the pandemic, it cannot
become a sabbatical." Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020)
(Gorsuch, J., concurring). In this Court's opinion, assuming the Constitution has taken a
holiday, the holiday is long over, and it needs to get back to work, NOW.
From the time our Founding Fathers signed the Declaration of Independence and,
later, the United States Constitution, United States citizens have been provided with the
freedom to practice their religious beliefs as they deem fit. Religious liberty was just as
important to those who founded this nation as it is today. As John Adams said,
"[n]othing is more dreaded than the national government meddling with religion." John
Adams, From John Adams to Benjamin Rush, 12 June 1812, National Archives: Founders
Mar. 28, 2022). And, as James Madison explained, "[t]he Religion then of every man must
be left to the conviction and conscience of every man: and it is the right of every man to
exercise it as these may dictate." James Madison, Memorial and Remonstrance Against
2
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28, 2022). 1
Since December 15, 1791, when the Bill of Rights was ratified, the Free Exercise
Clause of the First Amendment has been a safe haven for this country's religious liberty.
free exercise thereof .... " U.S. Const. amend. I. It has been this way since the beginning
of the Nation-even, critically, in the context of military conscription. Consider our own
history. In the Colonies, service in the militia was required of able-bodied young men.
Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1905-06 (2021) (Alito, J., concurring). But
Quakers, Mennonites, and other religious groups objected to militia service based on
1906. Of course, being a new Nation, we were often" desperately in need of soldiers." Id.
at 1906. Indeed, "the very survival of the new Nation often seemed in danger." Id. The
stakes were high. Members of Congress faced "bleak personal prospects if the war was
lost." Id. But that did not stop the early Continental Congress from granting religious
accommodations. Id.
And the Free Exercise Clause has withstood the test of time. In 1963, Justice Clark
wrote, "[t]he Free Exercise Clause ... withdraws from legislative power, state and federal,
the exertion of any restraint on the free exercise of religion. Its purpose is to secure
authority." Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 222-23 (1963).
1James Madison has been credited by many as the Father of Religious Liberty. For a detailed historical
discussion of his work, see Rodney K. Smith, James Madison: the Father of Religious Liberty (2019).
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In fact, the Religious Freedom Restoration Act ("RFRA") was enacted in 1993 to
further protect United States citizens' right to religious liberty. Under the RFRA,
"Government shall not substantially burden a person's exercise of religion even if the
burden results of general applicability . . . " 42 U.S.C. § 2000bb-1. For when the
violates the Free Exercise Clause no less than if it had imposed a special tax." Locke v.
Sadly, religious liberty has been called into question time and time again
throughout our nation's history. 2 Recently, now District of Columbia Circuit Judge Justin
R. Walker noted, "the Free Exercise Clause remains a too-often tested bulwark against
preschoolers." On Fire Christian Ctr., Inc. v. Fischer, 453 F. Supp. 3d 901, 907 (W.D. Ky.
liberty, this Court is faced with the specific instances before it.
2 See Alexis Miller Buese, Dino La Verghetta, Abigail Hudson, 2020: COVJD-19 versus the First Amendment,
Daily Journal CTanuary 22, 2021) for a discussion on court rulings on attacks of individuals' constitutional
right to freedom of religion and the Free Exercise Clause during the COVID-19 pandemic.
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II. FACTS
This action involves eighteen active duty and active reservist Airmen stationed
across the United States at Wright-Patterson Air Force Base, Ohio; Hulburt Field, Florida;
Randolph Air Force Base and Dobbins Air Reserve Base, Georgia; and March Air Reserve
Base, Riverside County, California ("Plaintiffs"). These Plaintiffs seek injunctive relief
from being required by the Air Force to receive the COVID-19 vaccines in violation of
their sincerely held religious beliefs and despite having applied for religious exemptions
from the vaccine. Plaintiffs bring this action against numerous Air Force officials,
including the Secretary and Surgeon General of the Air Force, claiming statutory and
On August 24, 2021, almost 18 months after the beginning of the COVID-19
pandemic and approximately 12 months after the vaccines had been available to the
public, "the Secretary of Defense issued a mandate for all members of the Armed Forces
under the Department of Defense authority on active duty or in the Ready Reserve,
including the National Guard, to immediately begin full vaccination against COVID-19."
(Memorandum for Department of the Air Force Commanders, 3 Sept. 2021, Plaintiffs PI
Hearing Ex. 2.) The COVID-19 vaccination mandate, however, allows for medical,
Implementation Guidance for Service Members, Doc. 27-7, Pg. ID 1676-47, 1649.) The
mandate also provides that, "[u]nless exempted, Active Duty Airmen and Guardians will
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the National Guard, Airmen and Guardians will be fully vaccinated by 2 December 2021."
(Memorandum for Department of the Air Force Commanders 3 Sept. 2021, Plaintiffs PI
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explain the consequences Airmen faced if they refused to get vaccinated without
Hernandez Dec."), Doc. 27-14, Pg. ID 1940-46.) Col. Hernandez explained that,
"[p]otential dispositions for failing to obey a lawful order to receive the COVID-19
stating that those who refuse to comply with the COVID-19 vaccination mandate, "absent
discharge proceedings." (Id. at Pg. ID 1943.) Lastly, and most severely, Col. Hernandez
The Air Force provides their COVID-19 virus statistics on the Air Force's website.
These statistics include the total number of COVID-19 cases, percentage of Airmen
approved, and denied religious exemption requests, both at the initial and appeals stage.
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(DAF COVID-19 Statistics - March 22, 2022, Plaintiffs' PI Hearing Ex. 10.) As of March
22, 2022, 98% of activity duty Airmen were fully vaccinated and 93.3% of Guard and
Reserve Airmen were fully vaccinated. (Id.) Thus, 96.4% of the Air Force was fully
vaccinated as of March 22, 2022. (Id.) Additionally, as of March 22, 2022, the Air Force
had approved 1,129 medical exemptions and 1,426 administrative exemptions, equaling
As of March 22, 2022, the Air Force had adjudicated 4,403 religious exemption
requests, but of those requests at the initial stage, the Air Force had only granted 21
requests. (Id.) That is right-only 21. Thus, at the initial stage, the Air Force had only
granted .47% of religious exemptions heard. (Id.) The Surgeon General of the Air Force
had adjudicated 1,162 appeals of denials of religious exemption requests. (Id.) Of those
1,162 appeals adjudicated, the Surgeon General only approved two (2) additional
religious exemption requests. (Id.) So, at the appeals stage, the Air Force only approved
thousands of religious exemptions the Air Force has adjudicated, the Air Force has only
Here, each Plaintiff in this case has, at a minimum, filed a religious exemption
request with the Air Force. (Ver. Compl., Doc. 1, Pg. ID 7-11.) Each Plaintiff was
interviewed by an Air Force Chaplain, who confirmed (in writing) the sincerity of each
Plaintiff's religious belief. (Id.) Four Plaintiffs, 2LT Connor McCormick, Maj. Daniel
Reineke, Lt. Col. Edward Stapanon, III, and Maj. Patrick Pottinger, have had their
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religious exemption requests denied and currently have appeals of such denials pending
with the Air Force Surgeon General. (Id. at Pg. ID 9-10; see also Decision Regarding 2LT
six Plaintiffs, 2LT Hunter Doster, Maj. Paul Clement, SSgt Adam Theriault, SRA Joe Dills,
Maj. Heidi Mosher, and SMSgt Chris Schuldes, have had their initial religious exemption
request and their appeal of such denial to the Air Force Surgeon General denied. (Id. at
Pg. ID 7-10; see also Decision Regarding Maj. Mosher Religious Accommodation Appeal,
Doc. 38-1, Pg. ID 2631; Decision Regarding 2LT Doster Religious Accommodation
During the preliminary injunction hearing, the Court heard testimony from three
Appeal, Doc. 8-4, Pg. ID 79.) In his request, 2LT Doster explains his religious convictions
3 Plaintiff 2LT McCormick's religious exemption request was denied after Plaintiffs' filed their Verified
Complaint and, thus, was filed at a later date. (See Decision Regarding 2LT McCormick Religious
Accommodation Request, Doc. 38-5.)
4 Plaintiffs Maj. Mosher and 2LT Doster's appeals of the denial of their religious requests were denied after
Plaintiff filed their Verified Complaint and, thus, were filed at a later date. (See Decision Regarding Maj.
Mosher Religious Accommodation Appeal, Doc. 38-1; Decision Regarding 2LT Doster Religious
Accommodation Appeal, Doc. 19-1.)
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and the reasons he is seeking an exemption. (Id.) Specifically, 2LT Doster stated,
Two foundational components of this New Covenant are that all life is
created by God and is therefore sacred and that I am the Temple of the Lord
because God's Spirit, The Holy Spirit, dwells in me. Due to these bedrock
principles of my faith, I cannot in good conscience take the COVID-19
Vaccinations because of their ties with aborted fetal tissue, and my beliefs
in the spiritual gift of healing.
(Id.)
2LT Doster included an attachment with his request, approximately three pages
long, that additionally explains his convictions. (Id. at Pg. ID 81-83.) He also submitted
Put simply, being forced to benefit from the taking of a life of a child
by taking this vaccine will cause a burden on Hunter's ability to practice his
faith with a clear conscience before a Holy God . .. I am asking that you
strongly and advisedly afford him the opportunity to live according to his
deeply held religious convictions by granting him an exemption to these
vaccines.
2LT Doster also submitted a letter from Reverend Patrick Tanton that supported
his religious exemption request. (Id. at Pg. ID 86.) In addition, on October 1, 2021, Air
Force Chaplain, Maj. Krista Ingram, also submitted a Memorandum in Support of 2LT
Despite the resounding support for 2LT Doster's religious exemption request by
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religious leaders within and outside the Air Force, his request was denied on January 6,
2022. (Id. at Pg. ID 92.) In a letter signed by Lieutenant General Marshall Webb, this
denial stated, "[f]irst, the Air Force's compelling government interest outweighs your
individual belief and no lesser means satisfy the government's interest." (Id.) The denial
continued, stating that the measures the Air Force had taken "for the past 18 months"
drastic measures detracts from readiness, efficiency and good order and discipline in the
2LT Doster appealed this decision on January 18, 2022, relying on the same
religious covenants as his initial request to establish his sincerely held religious beliefs.
(Id. at Pg. ID 94.) However, the Air Force denied 2LT Doster's appeal on February 22,
2022. Signed by the Air Force Surgeon General Robert Miller, the denial states,
Then, following the denial of his appeal, 2LT Doster received a Memorandum,
requiring he get vaccinated within five days. (Id. at Pg. ID 945.) The memorandum
concluded, stating "[f]ailure to comply with the lawful order may result in administrative
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and/ or punitive action for Failing to Obey an Order under Article 92, Uniform Code of
Like 2LT Doster, SrA Joseph Dills filed a religious exemption request on October
2, 2021. (SrA Joseph Dills Religious Exemption Request, Doc. 8-5, Pg. ID 131.) In support
(Id.)
Dills Religious Exemption Request, Doc. 36-2, Pg. ID 2375-77.) Chaplain Stephens,
Sr A Joseph Dills has a religious and ethical conviction and believes that
any use of a vaccine that uses aborted fetal cell tissue for testing and
manufacturing or introduced into a vaccine will be a violation of his
religious and ethical conviction of his faith.
Although the exact date is not provided within the record, SrA Dills's religious
exemption request was denied in November of 2021. (Ver. Compl., Doc. 1, Pg. ID 11.)
SrA Dills immediately appealed the denial on November 5, 2021. (SrA Appeal and
Denial, Doc. 42-2, PG. ID 2800.) Such appeal cited to the same sincerely held religious
beliefs as his initial religious exemption request. (Id.) SrA Dills's appeal was denied on
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December 16, 2021. (Id. at 2817.) Other than swapping out names and positions, SrA
Dills's appeal denial was identical to 2LT Doster. (Id.) After the Air Force denied SrA
Dills's appeal, he received a Letter of Reprimand on January 3, 2022 for refusing to get
LT Col. Edward Stapanon, III filed a religious exemption request on September 21,
2021. (LT Col. Edward Stapanon Religious Exemption Requests, Appeals and Denials,
Doc. 33-4, Pg. ID 2174.) In his religious exemption, LT Col. Stapanon stated:
(Id.)
Although the specifics of such interview and findings are not easily identifiable in
the record, "an Air Force Chaplain interviewed Lt. Colonel Stapanon on September 21,
2021 and confirmed the sincerity of his beliefs[.]" (Ver. Comp!., Doc. 1, Pg. ID 10.)
Despite LT Col. Stapanon' s sincerely held religious beliefs, such request was
denied by the Air Force on March 4, 2022. (Stapanon Denial of Religious Exemption
Request, Doc. 33-3, Pg. ID 2163.) Again, other than swapping out names and positions,
LT Col. Stapanon's religious exemption request denial is identical to 2LT Doster. (Id.) LT
Col. Stapanon filed his appeal of such denial on March 13, 2022, and the appeal is still
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pending before the Air Force Surgeon General. (Stapanon Appeal, Doc. 33-4, Pg. ID
2166.)
Plaintiffs filed the Verified Complaint on February 16, 2022, bringing a violation
of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a)-(b), and violation of the
First Amendment of the United States Constitution. (Ver. Compl., Doc. 1, Pg. ID 17-18.)
Since filing their Verified Complaint and Motion for a Preliminary Injunction (Doc. 13),
the parties have filed multiple Notices of Supplemental Authority (Doc. 32, 41, 43 & 44),
Notices of Additional Factual Developments (Docs. 33 & 38), and Notices of Additional
Materials (Docs. 42 & 36) regarding Plaintiffs' Motion for injunctive relief. Plaintiffs have
also filed, in addition to motions seeks injunctive relief, a Motion to Amend or Correct
(Doc. 11) and a Motion for Class Certification (Doc. 21). Defendants have filed a Motion
A. Justiciability
Before the Court can analyze the merits of whether Plaintiffs are entitled to a
preliminary injunction, the Court must first confirm the matter is reviewable. The
Government argues that this Court lacks jurisdiction over this case because: (1) it is not
ripe for the Court's review, and (2) not all Plaintiffs have exhausted their administrative
remedies with the Air Force. Part and parcel with the Government's exhaustion
argument, however, is whether the Court should review a military decision at issue in
this litigation. See Harkness v. Sec'y of the Navy, 858 F.3d 437, 444 (6th Cir. 2017).
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Accordingly, the Court analyzes both the ripeness and judicial reviewability of the Air
1. Ripeness
Prods. Co., 473 U.S. 568,580 (1985) (citation omitted). Previously, the Supreme Court has
instructed courts to evaluate generally "both the fitness of the issues for judicial decision
and the hardship to the parties of withholding court consideration." Airline Pros. Ass'n of
Int'l Bhd. of Teamsters, Loe. Union No. 1224, AFL-CIO v. Airborne, Inc., 332 F.3d 983, 988 (6th
Cir. 2003) (quoting Abbott Lab'ys v. Gardner, 387 U.S. 136, 149 (1967)).
constitutional violation claim is ripe: "(1) the likelihood that the harm alleged by the
plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed
to produce a fair adjudication of the merits of the parties' respective claims; and (3) the
hardship to the parties if judicial relief is denied at this stage in the proceedings." Berry
v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012). Additionally, "[i]n the First Amendment
context, we evaluate the likelihood of the harm factor by focusing on how imminent the
threat of prosecution is and whether the plaintiff has sufficiently alleged an intention to
refuse to comply with the statute." Id. In this context, the Sixth Circuit has found that
the plaintiff established hardship by the denial of judicial relief, stating that" [Plaintiff] is
faced with a present quandary- speak now and risk punishment or forever hold his
peace." Id.
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that the harm to Plaintiffs will come to pass. Plaintiffs continue to face serious
dispositions for failing to obey a lawful order to receive the COVID-19 vaccination
demotions, admirative discharges, and courts-martial." (Col. Hernandez Dec., Doc. 27-
14, Pg. ID 1940.) Further, each of the Plaintiffs who testified at the hearing indicated that
they were being threatened with imprisonment for refusing the vaccine without an
Second, the record is sufficiently developed for the Court to fairly adjudicate the
merits of Plaintiffs' Motion. Each party provided significant briefing as well as numerous
declarations and evidence in support of their positions, and the Court heard several hours
of testimony during the preliminary injunction hearing. Thus, the second factor outlined
in Bern; is satisfied.
Finally, Plaintiffs stand to face significant hardship if the Court does not address
the issue at this time. Plaintiffs face severe punitive action due to their refusal to receive
the COVID-19 vaccine-including prison as made clear during the evidentiary hearing.
Like in Berry, Plaintiffs are faced with a present quandary-refuse to get vaccinated now
and face punishment, including criminal prosecution and prison, or get vaccinated in
violation of their sincerely held religious beliefs. See Berry, 688 F.3d at 298. Accordingly,
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the Court concludes that Plaintiffs' claims are ripe for adjudication.
an allegation that the military has acted in violation of applicable statutes or its own
858 F.3d at 444 (citing Mindes v. Seaman, 453 F.2d 197,201 (5th Cir. 1971)). "If the plaintiff
meets both prerequisites, then four factors must be weighed to determine justiciability:
(1) the nature and strength of the plaintiff's challenge; (2) the potential injury to the
plaintiff of withholding review; (3) the degree of anticipated interference with the
military function; and (4) the extent to which military experience or discretion is
involved." Id.
(Ver. Comp!., Doc. 1, Pg. ID 1, 17-18), and so only the question of exhaustion is at issue
as to the identified prerequisites. To that point, Defendants argue Plaintiffs have failed
to exhaust their administrative remedies, and thus this Court should refuse to hear this
matter.
to perform functions within its special competence-to make a factual record, to apply
its expertise, and to correct its own errors so as to moot judicial controversies." Parisi v.
Davidson, 405 U.S. 34, 38 (1972). However, the Sixth Circuit has adopted exceptions to
this general rule, one being futility, which occurs "where pursuit of administrative
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remedies would be a futile gesture." Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th
Cir. 1981).
In a factually similar case to this one, the Fifth Circuit analyzed the question of
futility using the Mindes standard, the same test adopted by the Sixth Circuit. U.S. Navy
Seals 1-26 v. Biden, 27 F.4th 336, 346 (5th Cir. 2022). There, that court determined that,
when evidence suggests that exhaustion is futile because the military "has effectively
stacked the deck against even those exemptions supported by Plaintiffs' immediate
commanding officers and military chaplains[,]" the second prerequisite is satisfied. Id. at
347.
After hearing the testimony of three Plaintiffs and reviewing the record, there is
no question to the Court that exhaustion in this instance is futile. As of March 22, 2022,
the Air Force had adjudicated 4,403 religious exemptions. (DAF COVID-19 Statistics -
March 22, 2022.) Of those 4,403 religious exemptions, the Air Force granted only 21. (Id.)
Additionally, the Air Force has ruled on 1,162 appeals of the denials of religious
exemptions. (Id.) And, of those 1,162, the Air Force has granted only 2 appeals. (Id.) In
light of these farcical statistics, this Court finds that the Air Force "has effectively stacked
the deck" against service members seeking religious exemptions, see U.S. Navy Seals 1-26,
27 F.4th at 347, and thus further finds that exhaustion of the Air Force proceedings on
Next, the Court turns to the applicable four factors. Harkness, 858 F.3d at 444. The
first factor, the nature and strength of the plaintiff's challenge, weighs in favor of judicial
review. Plaintiffs are challenging the Air Force's administration of its COVID-19
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involves free exercise of religion protections under both the RFRA and the First
rights under the Free Exercise Clause, plus similar violations of the RFRA[,] Plaintiffs'
claims are squarely in the category of claims most favorable for judicial review." U.S.
Navy SEALs 1-26 v . Biden, No. 4:21-cv-01235-O, 2022 WL 34443, at *7 (N.D. Tex. Jan. 3,
2022). Also, as discussed below, this Court finds that Plaintiffs' claims are strong and
likely to succeed on the merits. Accordingly, the first factor weighs in favor of
justiciability.
The second factor, the potential injury to the plaintiff of withholding review, also
weighs in favor of judicial review. If the Court withholds review, Plaintiffs find
freedoms and their livelihoods and benefits for each of them and their families.
Poffenbarger v. Kendall, No. 3:22-cv-1, 2022 WL 594810, at *9 (S.D. Ohio Feb. 28, 2022). Also,
Plaintiffs could face criminal charges or even prison due to their refusal to receive the
Regarding the third factor, which asks this Court to examine the degree of
since there will always be some interference when review is granted . ... " Mindes, 453
F.2d at 201. Thus, "courts ought to abstain only where the interference would be such as
to seriously impede the military in the performance of vital duties." U.S. Navy Seals 1-26,
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27 F.4th at 348 (internal quotations omitted). Here, the interference with military function
would be minimal because only a very small percentage of Air Force service members
remain unvaccinated. As of March 22, 2022, 96.4 % of the Air Force is fully vaccinated.
(DAF COVID-19 Statistics, March 22, 2022.) Of the remaining unvaccinated, as of March
22, 2022, the Air Force has granted 1,129 medical exemptions and 1,426 administrative
exemptions. (Id.) Thus, "[i]t seems illogical to think, let alone argue, that [Plaintiffs']
function when the Air Force has at least [2,500] other service members still on duty who
are just as unvaccinated as [Plaintiffs]." Air Force Officer v. Austin, No. 5:22-cv-009, 2022
WL 468799, at *7 (M.D. Georgia Feb. 15, 2022); see also U.S. Navy Seals 1-26, 27 F.4th at 349
("It is therefore 'illogical ... that Plaintiff[s'] religious-based refusal to take a COVID-19
vaccine would 'seriously impede' military function when the [Navy] has [over 5,000]
service members still on duty who are just as unvaccinated as [the Plaintiffs]"). Further,
disciplinary action to the unvaccinated defies logic and common sense. Thus, the third
Lastly, the fourth factor asks this Court to examine the extent to which military
directly related to specific military functions," see Mendes, 453 F.2d at 201-02, "the
particular issues and constitutional questions presented here are not so foreign to those
outside the military as to give the Court serious concern about its ability to decide the
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case." Poffenbarger, 2022 WL 594810, at *9. And, where the evidence suggests that the
military is intentionally ignoring, and will continue to ignore, RFRA and the First
Amendment's protections, such as here, "courts must intervene because generals don't
Navy Seals 1-26, 27 F.4th at 349; see also Air Force Officer, 2022 WL 468799, at *8 (" . . . judges
don't make good generals... But, by that same token, it's a two-way street: Generals don't
Constitution appropriately places in Article III judges the duty to defend it and secure its
religious liberties to all. Thus, the fourth factor does not weigh against justiciability.
Thus, this Court finds that this matter is reviewable. Plaintiffs assert serious
exhaustion is futile. Further, the remaining factors weigh in favor of this Court's present
review of these issues. Accordingly, the Court finds that this matter is justiciable.
Federal Rule of Civil Procedure 65(a) allows the Court to issue a preliminary
injunction against an adverse party. Fed. R. Civ. P. 65(a). If a Court grants a preliminary
injunction, the Court must "(A) state the reasons why it issued; (B) state its terms
specifically; and (C) describe in reasonable detail- and not by referring to the complaint
positions of the parties until a trial on the merits can be held." Univ. of Texas v. Camenisch,
451 U.S. 390, 395 (1981). "Given this limited purpose, and given the haste that is often
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granted on the basis of procedures that are less formal and evidence that is less complete
than in a trial on the merits." Id. "A party thus is not required to prove his case in full at
a preliminary-injunction hearing, and the findings of fact and conclusions of law made
to consider four factors: "(1) the movant's likelihood of success on the merits; (2) whether
the movant will suffer irreparable injury without a preliminary injunction; (3) whether
issuance of a preliminary injunction would cause substantial harm to others; and (4)
McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012). "The harm to the opposing party and
the public interest factors merge when the Government is the opposing party."
Poffenbarger, 2022 WL 594810, at *7 (quoting Wilson v. Williams, 961 F.3d 829,845 (6th Cir.
2020)).
These four factors are "to be balanced and not prerequisites that must be satisfied."
Id. "In First Amendment cases, however, the crucial inquiry is usually whether the
plaintiff has demonstrated a likelihood of success on the merits." Bays v. City of Fairborn,
668 F.3d 814, 819 (6th Cir. 2012). This is because "the issues of the public interest and
harm to the respective parties largely depend on the constitutionality of the state action."
Id. (cleaned up). Thus, "a court must not issue a preliminary injunction where the movant
presents no likelihood of merits success." Wilson, 961 F.3d at 844. "The party seeking the
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preliminary injunction bears the burden of justifying such relief, including showing
irreparable harm and likelihood of success on the merits." McNeilly, 684 F.3d at 615.
Plaintiffs' first claim is a violation of the RFRA. RFRA was enacted "in 1993 in
order to provide very broad protection for religious liberty." Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 693 (2014). Indeed, "[b]y enacting RFRA, Congress went far
beyond what [the Supreme Court] has held is constitutionally required." Id. at 706.
RFRA, per its plain text, applies to the military. See 42 U.S.C. § 2000bb-1; 42 U.S.C. §
Specifically, RFRA states that the "Government shall not substantially burden a
person's exercise of religion even if the burden results from a rule of general applicability,
governmental interest; and (2) is the least restrictive means of furthering that compelling
against the government when an individual's religious exercise has been burdened in
Defendants concede that Plaintiffs possess sincerely held religious beliefs. Thus,
the Court must address whether: (1) Plaintiffs' sincerely held religious beliefs are being
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furtherance of the Government's compelling interest; and (3) the substantial burden is
the least restrictive means of furthering Defendants' compelling interests. The Court
a. Substantial Burden
plaintiffs to choose between engaging in conduct that violates sincerely held religious
beliefs and facing a serious consequence." New Doe Child #1 v. Cong. of United States, 891
F.3d 578,589 (6th Cir. 2018). Indeed, "the Government substantially burdens an exercise
of religion when it places substantial pressure on an adherent to modify his behavior and
to violate his beliefs or effectively bars his sincere faith-based conduct." Id.
Defendants' single contention that this case does not involve a substantial burden
is that "[t]he 'substantial burden' in this case is not forcing the Plaintiffs to choose
between their religious beliefs and their jobs, but rather the significantly lesser burden
related to traveling internationally to receive one of the several vaccines that does not
involve fetal cell testing and therefore does not violate Plaintiffs' religious beliefs." (Def.
Resp. in Opp., Doc. 27, Pg. ID 1553 at fn. 12). For the reasons below, Defendants' argument
fails.
Here, Plaintiffs must choose between receiving the COVID-19 vaccine, which as
approved for use in the United States violate Plaintiffs' sincerely held religious beliefs, or
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martial." (Deel. of Col. Hernandez, Doc. 27-14, Pg. ID 1941.) The threat of such severe
repercussions can only be seen as requiring Plaintiffs to choose between their religious
beliefs and their livelihoods, which is a classic case of "substantial pressure." See Sherbert
Defendants cite no case law to support their contention that international travel to
take a vaccine that is not currently approved in the United States constitutes a
Mandating that Plaintiff take a vaccine developed in another country and not subject to
the same oversight or approval required within the United States cannot reasonably be
found to be a "significantly lesser burden." It is patently absurd. Thus, the Court finds
that the Air Force Covid Vaccination Mandate constitutes a substantial burden to
b. Compelling Interests
Thus, the question becomes whether the Air Force can show its vaccine mandate
subsection (b) of the RFRA statute. See 42 U.S.C. § 2000bb-l(b)(l). Importantly, "RFRA .
the compelling interest test is satisfied through application of the challenged law to the
Here, the Court must "look beyond formulated interests and to scrutinize the
asserted harm of granting specific exemptions to particular religious claimants ..." Id. at
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726-27 (cleaned up). "That is, [Defendants] must demonstrate a compelling interest
supporting the specific denial of [Plaintiffs'] exemptions and the absence of an alternative
for [Plaintiffs]." Navy Seal 1 v. Biden, No. 8:21-cv-2429, 2021 WL 5448970, at *10 (M.D. Fla.
Nov. 21, 2021). And "[a]lthough '[s]temming the spread of COVID-19 is unquestionably
a compelling interest," its limits are finite." U.S. Navy Seals 1-26, 2022 WL 34443, at *10
(quoting Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)).
Defendants argue that denying Plaintiffs' religious exemptions, and virtually all
the spread of COVID-19 and (2) military readiness. (See Def. Resp. in Opp., Doc. 27, Pg.
(noting in denying an airman's appeal of the denied religious exemption request that
"[t]he Department of the Air Force has a compelling governmental interest in requiring
you to comply with the requirement for the COVID-19 immunization because preventing
from relying on broadly formulated interests such as "national security" and "stemming
the spread of COVID-19" to overcome Plaintiffs' claims. Hobby Lobby, 573 U.S. at 726-27.
before this Court. Id. Defendants have failed miserably to do so. Defendants provide no
while at the same time granting numerous medical and administrative exemptions.
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Second, even the broad formulaic claims of "stemming the spread of COVID-19"
and promoting military readiness and national security ring hollow in light of the fact
that over 2,500 exempt Airmen are carrying out their respective duties unvaccinated. The
only difference between the over 2,500 Airmen who have otherwise received exemptions
and the 18 Plaintiffs before this Court is solely the type of exemption they requested. It
appears to the Court that the Air Force has freely granted medical and administrative
exemptions while denying almost all religious exemption requests. Thus, by permitting
certain types of exemptions significantly more often than others, the Air Force's mandate
compelling interest. And "underinclusiveness ... is often regarded as a telltale sign that
compelling." BTS Holdings, L.L.C. v. OSHA, 17 F.4th 604,616 (5th Cir. 2021).
Further, the Court cannot ignore that these Airmen served with loyalty and
conviction during the pandemic, when there was no vaccine. They complied with all
Defendants have not identified any specific harm resulting from Plaintiffs' unvaccinated
status at any time during the pandemic or since the mandate has been in place. Indeed,
any such claim would seem manufactured given the thousands of currently exempted,
unvaccinated individuals permitted to work in their normal duty stations. As the court
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religious beliefs.
Here, even if Defendants could demonstrate a compelling interest, the Air Force's
COVID-19 vaccination mandate is not the least restrictive means to further any
Hobby Lobby, 573 U.S. at 728. When applying the least-restrictive-means standard, a
defendant must show that it "lacks other means of achieving its desired goal without
imposing substantial burden on the exercise of religion by the objecting party." Id.
their duties and heroically accomplish their missions during the pandemic. No Airmen
was vaccinated until the vaccine became readily available, approximately a year after the
pandemic began. The Air Force did not require vaccinations until August of 2021,
Moreover, the Plaintiffs have all received temporary exemptions during the course
of their appeal, any disciplinary proceedings, and, potentially, this litigation, meaning
that they have been permitted to continue to work as they have always done. They have
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not been quarantined or prohibited from working in close proximity to anyone. And
during this time, Plaintiffs, and the Air Force, have continued to perform their duties and
that the least restrictive way to further their compelling interest of military readiness is
Plaintiffs, continue to perform their duties. See also U.S. Navy SEALS 1-26, 2022 WL 34443,
at *7 (holding that the Navy's vaccine mandate did not satisfy the least restrictive means
standard because it "treats comparable secular activity (e.g., medical exemptions) more
favorably than religious activity"); Poffenbarger, 2022 WL 594810 at *12 (finding that the
Air Force's denial of plaintiff's religious exemption is not the least restrictive means
Because the Air Force has willingly and freely granted administrative and medical
exemptions but refuses to grant virtually all religious exemptions, this Court finds that
* * * * *
failed to establish a compelling interest as to the specific Plaintiffs before the Court to
justify the mandate, and, even if they did, Defendants failed to establish that the mandate
As such, Plaintiffs have a likelihood of success on the merits of their RFRA claim.
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religious exemptions violates the Free Exercise Clause of the First Amendment.
Defendants argue that the Air Force's COVID-19 vaccination mandate is a "neutral law
of general applicability" and, thus, need only survive rational basis review. (Def. Resp.
in Opp., Doc. 27, Pg. ID 1547.) Plaintiffs, on the other hand, argue that the vaccination
mandate is neither neutral nor generally applicable and, thus, must survive strict
Amendment, provides that "Congress shall make no law .. . prohibiting the free exercise"
of religion. U.S. CONST. amend. I. "A neutral law of general applicability need not be
religious practices." Dahl v. Bd. of Trs. ofW Mich. Univ., 15 F.4th 728, 733 (6th Cir. 2021).
"But a law that is not neutral and generally applicable must undergo the most rigorous
of scrutiny." Id.
11
A law is not generally applicable if it invites the government to consider the
it prohibits religious conduct while permitting secular conduct that undermines the
11
government's interest in a similar way." Id. Accordingly, where a state extends
hardship' or present compelling reasons not to do so." Dahl, 15 F.4th at 733 (quoting
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Here, the Air Force's COVID-19 vaccination mandate is not generally applicable
exemptions. An esteemed colleague within this district recently held as much because
594810, at *16. Other courts have also held that military COVID-19 vaccination mandates
are not neutral and generally applicable. See Air Force Officer, 2022 WL 468799 at *12; see
also U.S. Navy Seals 1-26, 2022 WL 34443 at *11. Thus, because this Court finds the Air
Force's vaccination mandate to be neither neutral nor generally applicable, the Air Force
For Defendants to prevail under strict scrutiny, they must "show that [the Air
Force's] failure to exempt [Plaintiffs] serves interests of the highest order and is narrowly
tailored to achieve those interests." Dahl, 15 F.4th at 734-35. Like in Dahl, here, "the
question before [this Court] is not whether [the Air Force] has a compelling interest in
enforcing its vaccine policies generally, but whether it has such an interest in denying an
exemption to [P]laintiffs, and whether its conduct is narrowly tailored to achieve that
exemptions, on the one hand, while granting thousands of medical and administrative
exemptions, on the other, relatively none. Like the Sixth Circuit held in ManJville Baptist
Church, "restrictions inexplicably applied to one group and exempted from another do
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Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610,615 (6th Cir. 2020). And, this Court
held above that the Air Force' COVID-19 vaccination mandate is not narrowly tailored.
Thus, Defendants fail to satisfy strict scrutiny, because "[w]hile the law may take periodic
naps during a pandemic, we will not let it sleep through one." Id.
In a last ditch effort to persuade the Court, Defendants rely on the long standing
as a separate option open to the military to justify [a] regulation" being challenged under
the First Amendment. Poffenbarger, 2022 WL 594810 at *17 (quoting Harmann v . Stone, 68
F.3d 973, n.7 (6th Cir. 1995)). This Court also recognizes that courts have consistently
deferred to military decision-making. See Goldman v. Weinberger, 475 U.S. 503 (1986); see
also Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7 (2008).
However, such deference can only go so far. The Supreme Court has explained
that it "neither hold[s] nor impl[ies] that the conduct of [a military division] is always
beyond judicial review or that there may not be accountability in a judicial forum for
violations of law for specific unlawful conduct by military personnel, whether by way of
damages or injunctive relief." Gilligan v. Morgan, 413 U.S. 1, 12 (1973). And "some First
Amendment protection still exists" beyond military deference. Hartmann, 68 F.3d at 984.
The evidence before this Court is sufficient to establish that, at this stage of the
litigation, Defendants' overt policy to deny substantially all religious exemptions violates
the Free Exercise Clause, as well as RFRA. Here, "Defendants essentially want 'the Court
not the proper function of a court in a RFRA' or First Amendment case." Poffenbarger,
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2022 WL 594810, at *18 (quoting Singh v. McHugh, 185 F.Supp.3d 201,221 (D.D.C. 2016)).
The Court will not turn a blind eye to such apparent and serious violations of the Free
Exercise clause.
B. Irreparable Harm
"To merit a preliminary injunction, an injury must be both certain and immediate,
not speculative or theoretical." D. T. v. Sumner Cnty. Schs., 942 F.3d 324,327 (6th Cir. 2019).
First, " [a] plaintiff's harm from the denial of a preliminary injunction is irreparable if it is
not fully compensable by monetary damages." Certified Restoration Dry Cleaning Network,
L.L.C. v. Tenke Corp., 511 F.3d 535, 550 (6th Cir. 2007). Thus, if monetary damages are
difficult to calculate, then "the injury is not fully compensable by monetary damages."
Id. My colleague within this district has previously determined that, in the case where
an airman is facing punitive action for refusing to receive the COVID-19 vaccination in
violation of the Air Force's mandate, "[m]uch of the alleged harm to [plaintiff] is not
irreparable." Poffenbarger, 2022 WL 594810 at *18. In Poffenbarger, the plaintiff faced the
similar, if not identical, punitive action as Plaintiffs face in this case. Id. at *5. Thus, the
punitive action that may be taken against Plaintiffs if they to refuse to get vaccinated
Yet, even if the harm is fully compensable by monetary damages, the Sixth Circuit
has previously found that violations of the First Amendment and RFRA rights satisfy the
irreparable harm requirement. Maryville Baptist Church, Inc., 957 F.3d at 615-16 (finding
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restriction that burdened religion" assuredly inflicts irreparable harm"); Autocam Corp. v.
Sebelius, 730 F.3d 618 (6th Cir. 2013) (same). Unquestionably, the loss of First Amendment
freedoms, for even minimal periods of time, "constitutes irreparable injury." Elrod v.
Burns, 427 U.S. 347, 373 (1976). "This principle also applies to violation of rights under
Additionally, Courts with similar issues presented to them in the past few months
have determined that "the substantial pressure on a religious objecting service member
to obey the COVID-19 vaccination order and violate a sincerely held religious belief
Austin, No. 8:21-cv-2429, 2022 WL 534459, at *19 (M.D. Fla. Feb. 18, 2022); see also Air Force
Officer, 2022 WL 468030 at *12 (finding that the plaintiff established irreparable injury
because her religious exemption request was denied by the Air Force and such denial
"essentially infringed upon the free exercise of her religion"); U.S. Navy Seals 1-26, 2022
WL 34443 at *3 ("But because these injuries are inextricably intertwined with Plaintiffs'
loss of constitutional rights, this Court must conclude that Plaintiffs have suffered
irreparable harm").
As such, because this Court finds Plaintiffs have established a likelihood of success
on the merits for their RFRA and Free Exercise Clause claims, Plaintiffs have also
As noted above, the third and fourth requirements for issuance of a preliminary
injunction-the balance of harms and whether the requested injunction will disserve the
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public interest- "merge when the Government is the opposing party." Nken v. Holder,
556 U.S. 418, 435 (2009). Defendants argue that these factors "tilt decisively against
granting a preliminary injunction here." (Def. Resp. in Opp., Doc. 27, Pg. ID 1552.) The
Court acknowledges that weighty public interests are being considered in this case. First,
"it is always in the public interest to prevent the violations of a party's constitutional
rights." Dahl, 15 F.4th at 736. However, the Court also acknowledges the strong public
interest in national defense, including military readiness. See Winter, 555 U.S. at 24. As
this Court explains in greater detail below, the limited scope of this preliminary
injunction will not cause substantial harm to the Air Force because "[Plaintiffs'] religious-
based refusal to take a COVID-19 vaccine simply isn't going to halt a nearly fully
vaccinated Air Force's mission to provide a ready national defense." Air Force Officer,
constitutional rights violations outweigh any nominal harm the Air Force may sustain
due to Plaintiffs' vaccination status, the third and fourth factors weigh in favor of a
preliminary injunction.
Plaintiffs request a preliminary injunction ... that (i) requires the immediate
processing and acceptance of Plaintiffs' religious accommodation requests
under RFRA; (ii) requires timely and good faith processing of other
religious accommodation requests in accordance with the timelines [sic]
contained in current Department of Defense instructions, and appropriately
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improper here "even if the Court determined that Plaintiffs were entitled to some
individual relief at this stage." (Def. Response in Opp., Doc. 27, Pg. ID 1554.) However,
Plaintiffs have since revised their requested relief and now "seek only the relief that
extended to the portion of the lower court judgment [in U.S. Navy Seals 1-26, 2022 WL
34443] that the Supreme Court left in place [in Austin v. U.S. Navy Seals 1-26, No.21A477,
positions of the parties until a trial on the merits can be held." Camenisch, 451 U.S. at 395.
exercise of discretion and judgment, often dependent as much on the equities of a given
case as the substance of the legal issues it presents. Trump v. Int'l Refugee Assistance
Project, 137 S.Ct. 2080, 2087 (2017). A court should limit its preliminary injunction that
"goes beyond a restoration of the status quo and impose new obligations" on a party. See
Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir. 1976) (finding that a district court's
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preliminary injunction that went "beyond the restoration of the status quo and impose[d]
The Court finds the targeted relief Plaintiffs now seek is "a prohibition against
disciplinary or separation measures to these Plaintiffs under RFRA," and thus the Court
grants a preliminary injunction of such scope, enjoining Defendants from taking any
measures, against the Plaintiffs in this case for their refusal to receive the COVID-19
The Court's conclusion is not affected by the Supreme Court's recent decision in
Austin v. U.S. Navy Seals 1-26, 2022 WL 882559, or Justice Kavanaugh' s concurrence which
distinguishable from the present one, and this Court's injunction. As set forth below, the
injunction in this case is limited to solely these Plaintiffs and only maintains the status
punitive action against those Plaintiffs for their refusal to receive the COVID-19 vaccine.
It does not affect the Air Force's ability to make operational decisions, including
deployability decisions.
This case presents the constitutional collision of brave men and women serving in
the Air Force sincerely trying to exercise their religious beliefs and their esteemed
superiors who have loaded their weapons against them. During this preliminary
injunction hearing the Court watched and heard the testimony of Plaintiffs, some
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appearing in their full military uniforms and others also in uniform with their young
families, watching for justice to unfold in this case. And, at that moment, the Court
wondered what General George Washington would think of this battle between the
Executive branch, the First Amendment and RFRA. In fact, the Court asked counsel that
question.
completely captured this Court's own thinking in a way that borders the prescient. In a
letter dated 27 January 1793 to the New Jerusalem Church of Baltimore, he wrote:
We have abundant reason to rejoice, that in this land the light of truth and
reason have triumphed over the power of bigotry and superstition, and that
every person may here worship God according to the dictates of his own
heart. In this enlightened age and in this land of equal liberty, it is our boast,
that a man's religious tenets will not forfeit the protection of the laws, nor
deprive him of the right of attaining and holding the highest offices that are
known in the United States.
Founders Online, From George Washington to the Members of the New Jerusalem Church of
Yet here and now, the Air Force has put these Airmen in the unconscionable
position of choosing between their faith in an eternal God and their career in the United
States military. Indeed, active duty Lt. Col. Edward Joseph Stapanon, III, who logged 174
hours of combat time flown in Operation Iraqi Freedom and earned two air medals,
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A: Yes, Ma'am. I don't see that I have any other alternative. When I meet
my maker, I'm going to be held responsible for the decisions I've made, and
I'd much rather go to prison. There's been a lot of saints that have gone to
prison, so I'm willing to do that.
As such, decorated Lt. Col. Stapanon, who also testified that there is a shortage of
pilots, would rather endure prison than betray his sincerely held religious beliefs. And,
the enforcement of this vaccine mandate would take this American hero and his other
Accordingly, and with a respectful nod of gratitude to the Father of our great
country, this Court, as a sworn guardian of the Constitution, will not order the Air Force
personnel at this stage to forfeit the protections of our laws and of the Free Exercise
VIII. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs' Motion for a Preliminary Injunction. Thus, the Court ORDERS the following:
against the Plaintiffs named in this action for their refusal to get vaccinated for
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separation measures include, but are not limited to, "adverse administrative
discharges, and courts-martial." (Dec. of Col. Hernandez, Doc. 27-14, Pg. ID 1941);
2. Defendants, as well as any person acting in concert with Defendants, are enjoined
and restrained from taking any adverse action against Plaintiffs on the basis of this
lawsuit or their request for religious accommodation from the COVID-19 vaccine;
3. Thus, the temporary exemptions from taking the COVID-19 vaccine currently in
place for these Plaintiffs shall remain in place during the resolution of this
litigation;
4. In accordance with Federal Rule of Civil Procedure 65(d)(2), this Order binds the
parties; the parties' officers, agents, servants, employees, and attorneys; and other
persons who are in active concert or participation with the parties or the parties'
5. Pursuant to Federal Rule of Civil Procedure 65(c), the Court has considered the
need for Defendants to post security and concludes that no sum is required under
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B;-H~,W.-~£-~
JUDGE MATTHEW W. McFARLAND
41