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United States Court of Appeals For The Sixth Circuit: CASE NO. 22-3702
United States Court of Appeals For The Sixth Circuit: CASE NO. 22-3702
Wendy Cox
Siri and Glimstad LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
Tel: 212/532-1091
[email protected]
Counsel for Plaintiffs/Appellees
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TABLE OF CONTENTS
TABLE OFCONTENTS………………………………………………………….ii
TABLE OF AUTHORITIES.............................................................................. iii
INTRODUCTION AND SUMMARY ................................................................ 1
FACTUAL RECORD BELOW .......................................................................... 3
ARGUMENT ....................................................................................................... 9
I. Standard of Review ...................................................................................... 9
II. Plaintiffs have demonstrated that they, not Defendants, are likely to
succeed on appeal ........................................................................................10
A. Where, as here, Plaintiffs demonstrated a systemic policy of
discrimination, Defendants’ argument about this matter not being
amenable to class-wide resolution is simply wrong ............................10
1. The District Court properly found commonality and typicality where
Defendants engaged in a blanket policy of discrimination ................11
2. Defendants did not individually analyze requests for religious
accommodation .................................................................................14
3. Defendants’ ripeness and exhaustion arguments are without merit ...16
4. The class can be maintained under FRCP 23(b) ................................17
B. The District Court’s decision to keep Defendants from engaging in
systemic discrimination by limiting certain punitive measures does
not invade on core military decision-making, it merely applies the
law .........................................................................................................20
III. The balance of equities does not warrant a stay ........................................23
A. Irreparable Harm ................................................................................23
B. Harm to Others ....................................................................................26
IV. Conclusion ...................................................................................................27
ii
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TABLE OF AUTHORITIES
Cases
Adair v. England,
183 F. Supp. 2d 31 (D.D.C. 2002) .....................................................................22
City of North Royalton v. McKesson Corp. (In re Nat'l Prescription Opiate Litig.),
976 F.3d 664 (6th Cir. 2020)……………………………………………………20
iii
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Crookston v. Johnson,
841 F.3d 396 (6th Cir. 2016) ............................................................................... 9
Doster v. Kendall,
2022 U.S. Dist. LEXIS 59381, --- F.Supp.3d --- (S.D. Ohio 2022) .......... 1, 26, 27
Downen v. Warner,
481 F.2d 642 (9th Cir. 1973) .............................................................................22
Grutter v. Bollinger,
247 F.3d 631 (6th Cir. 2001) .............................................................................. 9
iv
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Holt v. Hobbs,
574 U.S. 352 (2015) .................................................................................... 10, 22
M.D. v. Abbott,
907 F.3d 237 (5th Cir. 2018)………………………………….………………...13
Parsons v. Ryan,
754 F.3d 657 (9th Cir. 2014) .............................................................................13
v
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Ramirez v. Collier,
142 S. Ct. 1264 (2022).......................................................................................22
Roberts v. Neace,
958 F.3d 409 (6th Cir.2020)…………………………………………………10, 18
Singh v. Carter,
168 F. Supp. 3d 216 (DCD 2016) ................................................................ 17, 22
Southern Ohio Coal Co. v. Office of Surface Mining, Reclamation & Enforcement,
20 F.3d 1418 (6th Cir. 1994) ..............................................................................16
Sprague v. GMC,
133 F.3d 388 (6th Cir. 1998) .............................................................................11
Stewart v. Blackwell,
444 F.3d 843 (6th Cir. 2006) .............................................................................18
Tandon v. Newsom,
141 S. Ct. 1294 (2021)................................................................................. 15, 18
vi
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vii
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“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.” Doster v. Kendall, 2022
U.S. Dist. LEXIS 59381, --- F.Supp.3d --- (S.D. Ohio 2022).
mandate for all Air and Space Force (“DAF”) members. Defendants granted
accommodation. The few religious exemptions Defendants granted were for those
service members in the process of leaving the service (i.e., terminal leave), thus
For a year now, Defendants have allowed those seeking religious exemptions
to remain in the service, with many continuing to perform their regularly assigned
consciences. At the same time, Defendants have spared the thousands of service
members with secular exemptions (medical and administrative) from these same
threats.
But now, Defendants claim some sort of emergency over an injunction that
does nothing more than preserve the status quo. Simply put, the injunction merely
1
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separating) less than two percent of the DAF, all of whom have undergone a rigorous
process the DAF set up to ensure that any religious accommodation only goes to
those whose beliefs are sincere and substantially burdened (hereafter “the class”).
Said another way, Defendants seek a stay so that they may resume their
and join both the Fifth and Eleventh Circuits in denying the Government’s requested
e.g. U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336 (5th Cir. 2022); Navy Seal 1 v.
Secretary of Defense, 11th Cir. 22-10645, Order Denying Stay (11th Cir. Mar. 30,
2022). Other courts have granted class certification for nearly identical claims. See,
e.g. U.S. Navy Seals, 1-26 v. Biden, 2022 U.S. Dist. LEXIS 65937 (March 28, 2022)
(Navy Class); Colonel Financial Management Officer v. Lloyd Austin, MDFL 8:22-
2
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themselves. The DAF had a vaccine mandate imposed by the Secretary of the Air
Force. [Appendix, Doc. 11-1, PageID#327; Doc. 11-2, PageID#328-329]. The DAF
sincerely held religious belief and the substantial burden the vaccination
about whether (i) the religious belief is sincerely held; and (ii) the religious
1
AFI 52-201, https://static.e-publishing.af.mil/production/1/af_hc/publication/dafi52-201/dafi52-
201.pdf (last visited 8/22/2022); DoDI 1300.17,
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/130017p.pdf (last visited
8/22/2022); https://www.af.mil/News/Article-Display/Article/2882742/daf-processes-religious-
accommodations-requests/ (last visited 8/22/2022). After this process, packets are forwarded up
the chain of command for final determinations. The Court can take judicial notice of
Government websites. Twumasi-Ankrah v. Checkr, Inc., 954 F.3d 938, 947, fn.3 (6th Cir. 2020).
3
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Each of the 18 original Plaintiffs, and everyone else who requested a religious
final decision, which can take months or longer,2 they continue to work and comply
exemptions to their vaccine mandate.3 As of that date, they only granted 25 religious
accommodations and denied 6,143 (0.4% approval rate), and, as explained below,
On May 23, 2022, a date after the class certification motion was submitted for
decision, the DAF had in effect 794 medical exemptions and 1,038 administrative
2
https://go.usa.gov/xMDMr (last visited 8/22/2022) (at Q&A 18, “Members who submit a
religious waiver to not receive the vaccination will be exempt from the requirement while their
request is pending.”).
3
https://www.af.mil/News/Article-Display/Article/2959594/daf-covid-19-statistics-march-8-
2022/ (last visited 8/22/2022).
4
https://www.af.mil/News/Article-Display/Article/3018445/daf-covid-19-statistics-may-2022/
(last visited 8/22/2022).
4
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accommodations and denied 8,869 (less than one percent), and, as explained below,
all of the approvals were to individuals who otherwise qualified for administrative
Meanwhile, by May 2022, 98.5% of the active-duty DAF, 93.7% of the Air
National Guard, and 94.7% of the reserves were fully vaccinated. Id.
one single religious exemption has been granted without that person also being
eligible for an administrative exemption (i.e., being at the end of their term of
service). [Dec. Wiest, Doc. 30-2, PageID#2084-2090, with transcript attached; Dec.
pled DAF adopted a systemic policy to deny religious accommodation requests other
than for members at the end of their term of service, while granting thousands of
PageID#13-14].
accommodating even more medical exemptions. [Dec. Poel, Doc. 25-17 at ¶7,
5
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protected class at the expense of an actual protected class. Id. And, just as fatal to
the Government, Colonel Poel also admitted that “both natural and vaccine
immunity decrease the risk of infection,” and that previous infection likely provides
compared to vaccination alone. Id. at ¶23. In short, the DAF’s own evidence
(with the CDC recently advising that over 95% of Americans have immunity to
COVID-19).5
testified that medical exemptions are granted for various conditions, including
pregnancy, adverse reactions, allergies, and the like, yet Defendants grant almost no
religious accommodation requests, and the few they do grant would be no different
than those granted for medical or administrative reasons alone. [Doc. 25-12,
exemption for allergic reactions to the vaccine or components of the vaccine” for the
purpose of allowing time for a new vaccine to become available that would not
present these same risks, yet they are not willing to allow time to permit a morally
5
https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence (last visited
8/25/2022)
6
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Colonel Chapa also testified that persons who receive medical exemptions are
determined to be medically fit for duty despite their unvaccinated status; yet those
with religious exemptions are determined by the DAF not to be fit for duty. Id. at ¶7.
Those receiving medical exemptions may not necessarily lose their eligibility for
relevant commander; yet all those with religious exemptions are deemed not fit for
Given average terms of service, an estimated five percent of the entire DAF (more
senior and seasoned members) are eligible for an automatic exemption. Yet, while
cannot accommodate the less than two percent of its members the DAF confirmed
Defendants’ unlawful discriminatory treatment into sharp focus. The DAF granted
Major Corvi a temporary medical exemption for pregnancy but subsequently denied
7
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request once her medical exemption expired. Admittedly, the DAF accommodated
her medical exemption by keeping her job duties, assignments and work interactions
the same,6 including not limiting in any manner her ongoing interactions with the
over 75 people in her squadron, but then refused to temporarily accommodate her
regardless of duty station, job assignment, or any other individual factor ̶ despite
Evidence also documented a clear discernable pattern in how the DAF has
substantially burdened by the mandate. Id. at ¶9. [Third Dec. Doster, Doc. 46-1,
PageID#3121-3124 at ¶3]. This proof showed that Defendants: (i) use the same
and across the active-duty, reserve, and guard; (ii) utilize the same regulations for
processing religious accommodation requests; (iii) utilize the same criteria for
processing religious accommodation requests; (iv) use the same form denial letters;
6
Her role was not limited in any way as the individual mobilization augmentee within the
National Air and Space Intelligence Center, where she assumes the role of her commander when
the commander is absent.
7
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/pregnancy.html (last
visited 8/22/2022)
8
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and (v) systemically deny each and every religious accommodation request unless
someone is at the end of their term of service and qualifies for an administrative
exemption. Id. at ¶4. And, these systemic denials occur regardless of (i) job duties;
(ii) level of person-to-person interaction in duties; (iii) time in service; (iv) base; (v)
future assignments; (vi) whether or not they are likely to deploy; or (vii) any other
individual factor (with the exception of those who are at the end of their term of
of all other members of the class, both in the systemic denials of their exemption
ARGUMENT
I. Standard of Review
In order to obtain a stay, Defendants must demonstrate: (1) the likelihood that
the party seeking a stay will prevail on the merits of the appeal; (2) the likelihood
that the movant will be irreparably harmed absent a stay; (3) the prospect that others
will be harmed if the court grants the stay; and (4) the public interest in granting the
stay. See Grutter v. Bollinger, 247 F.3d 631, 632 (6th Cir. 2001). As it turns out,
those are the same factors that warrant the issuance of an injunction in the first place.
Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016); Dahl v. Bd. of Trs. of
9
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For Plaintiffs, clear Sixth Circuit law establishes that the remaining factors
are met where constitutional rights are infringed upon as the other factors collapse.
H.D.V. - Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir. 2009); Roberts v.
Neace, 958 F.3d 409 (6th Cir. 2020). U.S. Supreme Court precedent establishes that
the same standards apply to RFRA claims, viz., a collapsing of the standards where
the Government is the defendant. Holt v. Hobbs, 574 U.S. 352 (2015); Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). And this Court’s precedent
clearly compels the same collapsed analysis. Maryville Baptist Church, Inc. v.
Beshear, 957 F.3d 610 (6th Cir. 2020) (noting that the issues collapse under
II. Plaintiffs have demonstrated that they, not Defendants, are likely to
succeed on appeal
must demonstrate that the District Court abused its discretion. In re Whirlpool Corp.
Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013) (citing
Olden v. LaFarge Corp., 383 F.3d 495, 507 (6th Cir. 2004)). A district court has
10
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broad discretion in certifying a class action, but “it must exercise that discretion
within the framework of Rule 23.” Coleman v. Gen. Motors Acceptance Corp., 296
common answers [to common questions] apt to drive the resolution of the litigation.”
Zehentbauer Family Land, LP, 935 F.3d 496, 503 (6th Cir. 2019) (quoting Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Said another way, commonality is
met when determining the “truth or falsity” of a common contention “that will
resolve an issue that is central to the validity of each one of the claims in one stroke,”
advancing the litigation. Wal-Mart, 564 U.S. at 350; Sprague v. GMC, 133 F.3d 388,
of the representative parties are typical of the claims or defenses of the class.”
“Typicality is met if the class members’ claims are ‘fairly encompassed by the
named plaintiffs' claims.’” Hendricks v. Total Quality Logistics, LLC, 2019 U.S.
Dist. LEXIS 96940 (S.D. Ohio Mar. 22, 2019) (quoting Sprague, 133 F.3d at 399).
11
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“Many courts have found typicality if the claims or defenses of the representatives
and the members of the class stem from a single event or a unitary course of conduct,
or if they are based on the same legal or remedial theory.” Rikos v. Procter & Gamble
Co., 799 F.3d 497, 509 (6th Cir. 2015) (quoting Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, 7A Federal Practice and Procedure § 1764 (3d ed. 2005)).
Here, all the claims are for religious discrimination and are premised on the
for each Plaintiff and for the class. And, the class representative Plaintiffs represent
both reservists and active-duty members, whether they are pilots, technicians, or
students, with job duties in a host of settings. Yet despite these differences, all of
them possess common claims with common proof stemming from Defendants’
systemic discrimination.
member of the class as Defendants suggest (though the class definition itself
demonstrates that each of its members has a sincerely held belief that has been
substantially burdened). Rather, it is sufficient that all Plaintiffs, like all others in
the class, were subject to the same mandate imposed by Secretary Kendall, all going
to the same appeal authority, Lt. General Miller, and all were subject to the same
12
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(M.D. Tenn. 2004) (explaining that class certification is appropriate “as long as the
Courts have not hesitated to permit certification, and find typicality and
commonality, when a class consists of persons who are injured through a policy of
Corp., 785 F.3d 895 (4th Cir. 2015); Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014);
EEOC v. Bass Pro Outdoor World, L.L.C., 826 F.3d 791 (5th Cir. 2016); M.D. v.
Abbott, 907 F.3d 237 (5th Cir. 2018); Augustin v. Jablonsky (In re Nassau County
This Court has reached the same conclusion. Powers v. Hamilton Cty. Pub.
Def. Comm'n, 501 F.3d 592 (6th Cir. 2007); People First v. Arlington Developmental
Ctr., 1998 U.S. App. LEXIS 9537 (6th Cir. 1998); Eddleman v. Jefferson County,
Defendants falsely claim that the DAF Chaplains do not make sincerity or
burden assessments – but the applicable Air Force Instruction says otherwise. DAF
13
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both the sincerity of belief and the substantial burden from the particular
requirement.8
Gen. Tele. Co. of Sw. v. Falcon, 347 U.S. 147, 159 n.15 (1982)). That is exactly
what Plaintiffs have alleged and, through the DAF’s own evidence, demonstrated
here. This is exactly what the Fifth Circuit recognized concerning another service
branch. U.S. Navy Seals 1-26, 27 F.4th 336. Common questions and answers apply
member’s claim. Although true, it misses the point. Instead, common questions
8
DAF 52-Attachment/Table 5a at p.29 (“Requestor’s religious beliefs seemed honestly,
consistently and sincerely held” … “Requester identified the substantial burden which infringes
upon religious freedom”). The Chaplain must then prepare a memo that addresses both sincerity
and substantial burden. AFI 52-201, https://static.e-
publishing.af.mil/production/1/af_hc/publication/dafi52-201/dafi52-201.pdf (last visited
8/22/2022).
14
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Second, given that Plaintiffs (and the class) have established, each by a DAF
Chaplain, that all of them have sincerely held religious beliefs, which are
demonstrated they met their burden of showing both a compelling need and least
restrictive means to burden those religious beliefs? See, e.g., 42 U.S.C. § 2000bb-
1(b); Tandon v. Newsom, 141 S. Ct. 1294, 1296-1297 (2021) (“[N]arrow tailoring
requires the government to show that measures less restrictive of the First
Third, can Defendants meet their showing of a compelling need, given that
the CDC recently issued new COVID-19 guidance providing new recommendations
and statements that reflect no discernable difference from infection between the
Fourth, can Defendants ever make this showing of compelling interest and
9
See Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons,
Communities, and Health Care Systems — United States, August 2022,
https://www.cdc.gov/mmwr/volumes/71/wr/mm7133e1.htm, (last accessed 08/18/2022).
15
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personnel at their end of service) all while granting, and accommodating, thousands
Defendants cannot dispute that these common questions (and there are others)
Defendants next argue that certain defenses only apply to certain class
members because not every class member has gone through the full administrative
certain class members. The District Court correctly dealt with this argument in light
exemptions for all but end-of-service personnel,11 finding that they fit well within
the futility exception recognized by this and other Circuits. Southern Ohio Coal Co.
v. Office of Surface Mining, Reclamation & Enforcement, 20 F.3d 1418, 1424 (6th
Cir. 1994) (futility exception); see, also, Seepe v. Department of Navy, 518 F.2d 760,
10
Defendants point to the fact some class members have been able to receive certain vaccines not
yet available in the United States that comport with their religious beliefs during the pendency of
this matter. Again, that does not change the fact that these members’ beliefs were not
accommodated by Defendants as requested, nor does it change the fact that these members face
punitive actions for failing to comply when told, requiring ongoing relief.
11
Dec. Wiest, Doc. 30-2, PageID#2084-2090, with transcript attached; Dec. Wiest, Doc. 74-2,
PageID#4527
16
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Regardless, several courts have properly come to the conclusion that RFRA
Univ. 403(b) DC Plan, 851 F.3d 552 (6th Cir. 2017) (declining to read an exhaustion
requirement into a statute not containing such a requirement); Singh v. Carter, 168
F. Supp. 3d 216, 226 (D.D.C. 2016) (exhaustion is not required for a RFRA claim);
Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 838 (9th Cir.
2012) (“We decline . . . to read an exhaustion requirement into RFRA where the
Supreme Court has not imposed one.”); U.S. Navy Seals 1-26, 27 F.4th 336.
Defendants next contend that certification could not be granted under FRCP
23(b) – for the record, FRCP 23(b)(1) and (b)(2). FRCP 23(b)(1)(A) is triggered
where the party is obliged by law or as a matter of practical necessity to treat the
members of the class alike. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614
(1997). Defendants’ failure to comply with RFRA and the First Amendment
A court may certify a class under FRCP 23(b)(2) if the party opposing the
class has acted or refused to act on grounds that apply generally to the class, so that
the class as a whole. A FRCP 23(b)(2) class was also appropriate here, since it
17
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involves claims for declaratory and injunctive relief against official capacity
defendants. Clemons v. Norton Healthcare Inc., 890 F.3d 254, 280 (6th Cir. 2018).
not hesitated to find class certification appropriate. People First, 1998 U.S. App.
LEXIS 9537 (6th Cir. 1998) (First Amendment (b)(2) class); Stewart v. Blackwell,
444 F.3d 843 (6th Cir. 2006) (pointing out that FRCP (b)(2) class focusses on
Defendants claim that whether a particular Plaintiff has a sincere belief that is
burdened and can be accommodated would turn on a close analysis of his or her
individual circumstances. Even assuming this is true in the abstract, here, the DAF
here refutes any claim Defendants followed such a process. In fact, this Court’s (and
the United States Supreme Court’s) precedents demonstrate that granting thousands
same position establishes the violation. Dahl, 15 F.4th 728; Fulton v. City of Phila.,
141 S. Ct. 1868, 1876 (2021); Maryville Baptist Church, 957 F.3d 610 at 614-615;
Roberts, 958 F.3d 409, 413-415; Tandon, 141 S. Ct. 1294, 1296.
“Risks of contagion turn on [the failure to receive the vaccine]; the virus does
not care why they [did not do so]. So long as that is the case, why do the orders
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requirement, but not permit religious exemptions]”? Maryville, 957 F.3d 610, 615.
The [defendants] ignored or denied their requests…” Id. In Dahl, it was merely the
In Dahl, the governmental actor at least made the argument that it also refused
to grant any medical exemptions. Even that was insufficient to avoid triggering strict
scrutiny. Id. at 734-735. In terms of strict scrutiny, and whether the Dahl defendants
could meet it, this Court found significant that others either were not subject to, or
were exempt from, the vaccination policy. Id. at 735. So too here. Here, the DAF
exemptions to carry out all kinds of job descriptions all across the DAF. Fulton, 141
S. Ct. 1868, 1882 (the government has no “compelling reason why it has a particular
19
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others.”).
differing conclusions about the merits compels the conclusion that class certification
was not proper. Not so. City of North Royalton v. McKesson Corp. (In re Nat'l
Prescription Opiate Litig.), 976 F.3d 664, 674 (6th Cir. 2020).
Defendants boldly argue that the judiciary should simply stay in what they
perceive to be its lane, and not enjoin widespread religious discrimination by the
DAF. Defendants then argue that the inability of service members to deploy risks
mission failure for the entire DAF. In doing so, Defendants utterly fail to explain 1)
why less than two percent of the total force creates this alleged risk, 2) why it has
permitted these same individuals to remain unvaccinated but on duty for over a year
administrative exemptions the DAF permits has not done the same.12
Defendants also complain that the order preventing the DAF from punitively
removing reservists with religious beliefs from points and pay status (that is,
12
The Government also takes issue with portions of the Order that the District Court vacated –
but this is plainly moot. We question whether a new notice of appeal must be filed.
20
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weekend drill pay, or points towards retirement), is beyond the ken of judicial
oversight. Of course, courts routinely reject this argument. Samma v. United States
DOD, 486 F. Supp. 3d 240, 263 (D.D.C. 2020) (observing that “while courts should
exercise caution when adjudicating claims involving matters of military affairs and
national security, that caution does not give DOD carte blanche authority to act in
3d 257, 265-266 (D.D.C. 2018) (same); Witt v. Dep't of the Air Force, 527 F.3d 806
(9th Cir. 2008) (reservist claim and directing reinstatement); Germano v. United
The record establishes that the DAF does not place reservists with medical or
is merely a status quo injunction. Nothing in the District Court’s order directs the
DAF to deploy the reservists, to assign them any particular duty, or even requires
the DAF to have them report to base – all of those “deployment, assignment, and
operational” decisions remain with the DAF. Austin v. United States Navy Seals,
142 S. Ct. 1301 (2022). Defendants are simply prohibited from punitively denying
reservists drill pay or retirement points during the course of this litigation.
Defendants next argue that they are entitled to extraordinary deference. When
applying a parallel statute that “mirrors RFRA” in the prison context, the Supreme
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Court unanimously rejected a similar request for “a degree of deference that [wa]s
tantamount to unquestioning acceptance.” Holt, 574 U.S. 352, 357, 364. Instead, the
Court applied strict scrutiny to hold that the prison’s failure to provide a religious
accommodation violated the statute. Id. at 369–70. Holt provides the proper
framework for resolving RFRA claims against the military. Singh, 185 F. Supp. 3d
at 221-22.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 26 (2008). Even if military operations
require some deference from courts, “‘resolving a claim founded solely upon a
(quoting Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973)). It is “not enough”
liberties must give way, particularly where history provides good reason to question
that determination. Ramirez v. Collier, 142 S. Ct. 1264, 1270 (2022). See, also,
H.R. Rep. No. 103-88 at 8 (even in the military context, “[s]eemingly reasonable
13
See, also,
http://www.supremecourt.gov/DocketPDF/21/21A599/220848/20220412154142789_No.%2021
22
Case: 22-3702 Document: 12-1 Filed: 08/25/2022 Page: 30
A. Irreparable Harm
Defendants take issue with the analysis in the class preliminary injunction –
ignoring the thorough analysis by the District Court in the two orders that preceded
PageID#5007-5014].
members who have suffered irreparable harm from the loss of their constitutional
and statutory rights. Dahl, 15 F.4th 728, 735-736, holds that the loss of
constitutional rights is irreparable. The class members face both career-altering and
the record establishing that class members have been permitted to remain
unvaccinated for over a year while their exemptions were processed. In fact, the
A599%20Motion%20for%20Leave%20to%20File%20and%20Brief%20of%2023%20States.pdf
(last visited 8/22/2022).
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Case: 22-3702 Document: 12-1 Filed: 08/25/2022 Page: 31
record evidence establishes that the DAF has not experienced any mission
Defendants’ mere assertions are also contradicted by the fact they permitted
that the DAF is not meeting its pilot or other accession and enlistment goals, yet still
days before the District Court’s initial preliminary injunction, one of the named
shortage of pilots, his Commander later reinstated his flying orders. Id. Simply put,
One other point on the equities: for most of these religious believers, the issue
isn’t whether Plaintiffs or the class will receive a vaccine for COVID-19, but rather,
14
https://www.airforcetimes.com/news/your-air-force/2022/01/21/air-forces-enlisted-recruitment-
pipeline-is-drying-up-general-warns/ (last visited 8/18/2022).
https://www.nbcnews.com/news/military/every-branch-us-military-struggling-meet-2022-
recruiting-goals-officia-rcna35078 (last visited 8/18/2022).
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Case: 22-3702 Document: 12-1 Filed: 08/25/2022 Page: 32
has no ties to aborted fetal tissue (which is the most prevalent religious objection),
and is under FDA review.15 We anticipate that upon approval in the United States,
a substantial portion of the class will receive this vaccine.16 In contrast, Defendants
argue that rather than await completion of a process solely controlled by the
Government, they should be able to imprison, punish, and separate sincere religious
exemptions untouched.
Fatally, Defendants failed to document a single instance of how the DAF has
been harmed by these unvaccinated Airmen (now class members) for the past two
years. In fact, for the last 11, now going on 12, months, these same class members
have been unable to travel, attend required schooling, and deploy. Not because they
were physically unable to travel or deploy, but simply because the DAF made the
vaccines became available. Yet, in his declaration, Lt. Gen. Schneider17 could not
15
https://www.medscape.com/viewarticle/975110 (last visited 8/24/2022).
16
The Government has argued that Novavax somehow is similar, but evidence showed it was
tested with fetal cell lines. [Doc. 30-3 through Doc. 30-20, PageID#2091-2149].
17
Skepticism of Lt. General Schneider’s assertions is warranted – Admiral Lescher who provided
declaration in a similar case, later admitted in deposition a lack of personal knowledge
regarding his declaration. [Doc.85-1, PageID#4666-4969].
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Case: 22-3702 Document: 12-1 Filed: 08/25/2022 Page: 33
cite a single concrete example of alleged irreparable harm.18 The class he references
that would cause this mere assertion of irreparable harm accounts for less than two
percent of the entire DAF and is spread out over and between hundreds of thousands
Lt. Gen. Schneider’s unproven assertion of irreparable harm relies upon the
fiction that there are persons who would readily replace members of the class. But
who was subject to cross-examination, confirmed the long training pipeline and a
lack of fungibility, and further established that this is not the zero-sum game the
B. Harm to Others
Finally, “the limited scope of this preliminary injunction will not cause
substantial harm to the Air Force and Space Force because ‘[Plaintiffs’] religious-
based refusal to take a COVID-19 vaccine simply isn’t going to halt a nearly fully
18
Plaintiffs note that although not needed here, there is a large and growing body of evidence
that unvaccinated individuals who have had COVID-19 are far more protected than those who
are vaccinated. See, also, Effects of Previous Infection and Vaccination on Symptomatic Omicron
Infections, New England Journal of Medicine, Altarawneh, et. al., June 15, 2022,
https://www.nejm.org/doi/full/10.1056/NEJMoa2203965 (last visited 7/25/2022); Protection of
prior natural infection compared to mRNA vaccination against SARS-CoV-2 infection and severe
COVID-19 in Qatar https://www.medrxiv.org/content/10.1101/2022.03.17.22272529v1(last
visited 8/24/ 2022).
“Similarly, an injunction expanded to apply to 10,000 or more service members. . .” and “As of
19
March 14, 2022, the Department of the Air Force had approximately 501,000 uniformed Service
members - . . .” [Doc # 73-1, PAGEID # 4490, 4493].
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vaccinated Air Force’s mission to provide a ready national defense.’” Doster, --- F.
Supp.3d ---, 2022 U.S. Dist. LEXIS 59381 at 48 (S.D. Ohio 2022) (citing Air Force
Officer v. Austin, --- F. Supp.3d ---, 2022 WL 468799, at *12 (M.D. Ga. 2022)). As
in Dahl, 15 F.4th 728, 735-736, the harm to others suggested by Defendants can only
conduct its mission prior to the advent of these vaccines, [Doc. 30-3 through Doc.
30-20, PageID#2091-2149], for the many months while exemption requests were
IV. Conclusion
injunction pending appeal should be denied. This Court should not subject
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Case: 22-3702 Document: 12-1 Filed: 08/25/2022 Page: 35
Respectfully Submitted,
/s/Thomas Bruns
Thomas Bruns (OH 0051212)
Bruns Connell Vollmar Armstrong LLC
4555 Lake Forest Drive, Suite 330
Cincinnati, OH 45242
[email protected]
513/312-9890 (v)
Counsel for Plaintiffs/Appellees
CERTIFICATE OF SERVICE
/s/Christopher Wiest___________
Christopher Wiest (OH 0077931)
CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 32(g), Fed. R. App. P. 27, and 6th Cir. R. 32(a), I
certify that this Response contains 5,999 words, excluding items in Fed. R. App. P.
32(f). This response complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in 14-point Times New Roman font using Microsoft Word.
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