Air Force Officers' Suit Over Vaccine Mandate Is Now Moot

Still working their way through the courts are dozens of cases brought by employees or former employees who were denied religious exemptions from Covid vaccine mandates. One of the more interesting is Air Force Officer v. Austin, (MD GA, Oct. 11, 2024), a class action suit on behalf of Air Force officers who were denied religious exemptions from the military's Covid vaccine mandate. The mandate has been rescinded by the military after Congress ordered it to do so. At issue in the case is whether the lawsuit is now moot. Plaintiffs made two basic arguments against mootness. One is that the government has not shown that the mandate will not be reimposed at some later time. The second is that plaintiffs are seeking an injunction that applies to exemptions from all military vaccine mandates, not just Covid vaccine requirements.  The court rejected both claims. The court said in part:

Understandably so, Plaintiffs and Defendants just disagree whether there is no reasonable expectation that “the same kind of COVID-19 vaccination requirement will be reinstated,” but it can’t be overlooked that “for almost two years now” there hasn’t been any indication that the COVID-19 vaccination mandates will be reinstated. In this Court’s opinion, that’s quite persuasive....

Litigation Over Air Force's Handling of Religious Objections to Vaccine Mandate Dismissed as Moot by Supreme Court

The U.S. Supreme Court today in Kendall v. Doster, (Docket No. 23-154, GVR'd 12/11/2023) (Order List), granted certiorari, vacated the judgment below, and remanded the case to the 6th Circuit with instructions to direct the District Court to vacate its preliminary injunctions as moot. In the case, the 6th Circuit Court of Appeals affirmed a district court's grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who had sought religious exemptions from the military's COVID vaccine mandate. (See prior posting.) The case is moot because the vaccine mandate has been rescinded by the military in compliance with Congressional legislation ordering the recission. (See prior posting.) The court similarly remanded as moot two other cases involving other challenges to rescinded federal vaccine mandates.

Reservist Challenges Military's Admonition of Him for His Remarks at Retirement Ceremony

Suit was filed this week in a Texas federal district court by Jace Yarbrough, a Major in the Air Force Reserve, challenging a Letter of Admonition issued to him by the military for the content of remarks he made while speaking, in uniform, at a retirement ceremony for Senior Master Sergeant Duane Fish, an Air Force flight superintendent with whom he worked closely and with whom he shared religious beliefs and values.  The complaint (full text) in Yarbrough v. United States Space Force, (ED TX, filed 10/3/2023), asserts that Yarbrough's Christian faith is central to his worldview, conduct and speech. The complaint describes the remarks at issue as encouraging people to practice the courage and virtue exemplified by SMSgt Fist.  It goes on:

92. In keeping with that theme, [Yarbrough] expressed his personal concerns about the negative impact of politicization within the military.... He worried that “radical” factions in “our wider culture” have “brought the culture war inside the DoD,” and that politicization of the military would be “a death knell for courage and competence.” 

93. To support his views, he drew on the teachings and thought of Eastern Orthodox Christian and writer Aleksandr Solzhenitsyn ... regarding the corrosive cultural consequences of dishonesty and self-deception.... 

94. Mr. Yarbrough gave two examples of objective realities he believes are known intuitively to all persons as persons: 1) “men can’t birth babies” and 2) “boys should not be allowed in girls’ locker rooms.” 

95. He expressed his faith-based belief that forcing people to deny such self-evident beliefs “requires constant . . . self-deception,” which can “habituate [us] to dishonesty” and cause us to lose our “grip on objective reality,” making us “less capable and less effective in our world.... 

96. As part of his warning against politicization, he referenced “recent DoD-wide extremism training” that he had attended, in which he “was relieved to see that [his] teammates recognized that training for what it was, a thinly veiled flex of political power.”...

The suit alleges that the Letter of Admonition, among other things, violated the Religious Freedom Restoration Act, as well the Free Exercise, Free Speech and Establishment Clauses.

First Liberty Institute issued a press release, including a link to the full text of plaintiff's remarks at the retirement ceremony.

Air Force Announces Portal To Process Religious Exemption Requests

The U.S. Air Force announced last week that it has developed a Portal to streamline requests for religious accommodation filed by Air Force, Space Force, and civilian employees, as well as appeals from denials of requests. According to an Air Force official:

The service has seen an exponential increase in religious accommodation requests, and the portal offers a systemic automated solution to ensure our servicemembers and civilians are assisted in the most expeditious manner going forward.

The Air Force has been embroiled in litigation filed by service members seeking religious exemptions from the military's COVID vaccine mandate. (See prior posting.)

6th Circuit Affirms Preliminary Injunction Protecting Air Force Personnel Who Have Religious Objections to COVID Vaccine

 In Doster v. Kendall, (6th Cir., Nov. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a district court's grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who have sought religious exemptions from the military's COVID vaccine mandate. The injunction however did not interfere with the Air Force’s operational decisions over the Plaintiffs’ duties. The 6th Circuit concluded that plaintiffs' RFRA claim was likely to succeed on the merits, saying in part:

Some 10,000 members with a wide array of duties have requested religious exemptions from this mandate. The Air Force has granted only about 135 of these requests.... Yet it has granted thousands of other exemptions for medical reasons (such as a pregnancy or allergy) or administrative reasons (such as a looming retirement)....

Under RFRA, the Air Force wrongly relied on its “broadly formulated” reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues.... The Air Force’s treatment of their exemption requests also reveals common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of a service member’s individual circumstances? And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? A district court can answer these questions in a “yes” or “no” fashion for the entire class.....

In the abstract, the Air Force may well have a compelling interest in requiring its 501,000 members to get vaccinated. It has also largely achieved this general interest, as evidenced by its ability to vaccinate over 97% of its force.... Under RFRA, however, the Air Force must show that it has a compelling interest in refusing a “specific” exemption to, say, Lieutenant Doster or Airman Colantonio.... To succeed ..., the Air Force must identify the duties of each Plaintiff and offer evidence as to why it has a compelling interest in forcing someone with those duties to take the vaccine or face a sanction....

If the Air Force can permanently retain those who cannot deploy because of their religious objections to a war, it must explain why it cannot permanently retain those who cannot deploy because of their religious objections to a vaccine.

(See prior related posting.) Courthouse News Service reports on the decision.

6th Circuit Refuses To Stay Class-Wide Injunction Against Air Force Enforcing Vaccine Mandate Against Religious Objectors

In Doster v. Kendall, (6th Cir., Sept. 9, 2022), the U.S. 6th Circuit Court of Appeals refused to grant an emergency stay of a class-wide injunction that was issued by an Ohio federal district court in a suit by Air Force and Space Force members who object on religious grounds to receiving the COVID vaccine. The district court enjoined the military from taking enforcement measures, while litigation is pending, against service members who have submitted confirmed requests for a religious accommodation from the military's vaccine mandate. The 6th Circuit said in part:

[T]he Department challenges only the merits of the district court’s decision to certify the class—the Department’s position being that, even if the named plaintiffs are likely to prevail on their individual claims, the court’s certification of the class was an abuse of discretion, and thus so too was the court’s issuance of a class-wide preliminary injunction....

The Department ... argues that RFRA claims categorically cannot be certified for class treatment. Here, for example, it says that the plaintiffs’ RFRA claim requires the court to determine separately for each service member whether the vaccination mandate is the least restrictive means of furthering a compelling governmental interest. We agree that most RFRA claims require that kind of individualized analysis; and we have no quarrel with the Department’s contention that such an analysis could not be conducted class-wide here. But the Department’s argument misconceives the nature of the RFRA claim that the district court certified. The court’s order emphasized on almost every page that the RFRA claim it certified was one based on a class-wide “clear policy of discrimination against religious accommodation requests.” ... That claim ... does not turn on an analysis of the class members’ individual circumstances and likely can be adjudicated class-wide.

Liberty Counsel issued a press release announcing the decision.

Religious Objections To Air Force COVID Mandate Dismissed For Lack of Standing and Ripeness

In Miller v. Austin, (D WY, Aug. 22, 2022), a Wyoming federal district court dismissed on standing and ripeness grounds a suit by two Air Force sergeants who face discharge because of their refusal on religious grounds to receive the COVID vaccine.  The court said in part:

Defendants correctly point out "Plaintiffs have filed this lawsuit to avoid the possibility of involuntary separation."... Furthermore, due to the pending class action, Defendants confirmed Miller's August 25, 2022 separation hearing has been paused.... There is no current threat of separation. Plaintiffs have not yet suffered a concrete, particularized, actual injury in fact because Plaintiffs have not been separated from the USAF. Plaintiffs do not have standing to bring this issue.

More damning to Plaintiffs' case, however, is the fact that the religious exemption is still subject to administrative review within the USAF.

National Class Action and TRO Approved For Air Force Members With Religious Objections To COVID Vaccine

In Doster v. Kendall, (SD OH, July 14, 2022), an Ohio federal district court certified a national class action on behalf of all active duty and active reserve members of the Air Force and Space Force who have submitted a request for a religious accommodation from the military's COVID vaccine requirement since September 1, 2021, who were confirmed as having had a sincerely held religious belief by Air Force Chaplains, and have had their request denied or have not had action on it. The court went on to issue a 14-day temporary restraining order against enforcing the vaccine mandate against any class member. According to the court

As of June 6, 2022, the Air Force had received 9,062 religious accommodation requests, granting 86 of those requests while denying 6,343 requests....  Following such denials, the Air Force had received 3,837 appeals from Airmen whose initial religious accommodation requests were denied.... As of June 6, 2022, the Air Force has granted only 23 of those appeals, denying 2,978....

Fox19 reports on the decision.

UPDATE: On July 27, the court issued a class-wide preliminary injunction. (Full text of order.) Fox19 reports on the decision.

Class Action Filed To Challenge Air Force Vaccine Mandate

Another lawsuit has been filed by religious objectors challenging the military's COVID vaccine mandate.  Brought in a Texas federal district court by nine members of the Air Force as a class action on behalf of all Air Force members with religious objections to the COVID vaccine, the complaint (full text) in Spence v. Austin, (ND TX, filed 5/27/2022), alleges violations of plaintiffs' rights under the 1st Amendment and RFRA.  It alleges in part:

Defendants  have  mandated  that  all  members  of  the  Air  Force  receive  a COVID-19  vaccine,  or  be involuntarily  separated.  In theory, Defendants  offer medical, administrative,  and  religious  accommodations  to  that  mandate.  But  in  practice, only servicemembers with medical or administrative reasons for an exemption from the mandate are accommodated. Religious accommodation requests (“RARs”) are universally denied unless the requester is already imminently leaving the Air Force. 

First Liberty issued a press release announcing the filing of the lawsuit. 

Court Denies Relief To Air Force Members With Religious Objections To COVID Vaccine

In a 61-page opinion in Roth v. Austin, (D NE, May 18, 2022), a Nebraska federal district court denied a preliminary injunction to 36 members of the Air Force, Air Force Reserve and Air National Guard who have religious objections to complying with the military's COVID vaccine mandate. The court said in part:

One objection made by several airmen is that part of the science giving rise to approved COVID19 vaccines involved use of research derived from aborted fetal cell tissue that was developed decades ago. Certain major religions of the world have long strenuously objected to the use of such research in medicine. However, having lost that battle in significant regard over the decades, many of those same religions have concluded that the remote impact of what they deem to be religiously or ethically objectionable research utilized for the vaccines does not support refusal to take the vaccines on religious grounds today....

The Court concludes, at least at this preliminary stage, that the Air Force has demonstrated it has a compelling interest in the health and readiness of its forces, including individual service members like Plaintiffs. The Court also concludes that the Air Force’s COVID-19 vaccination mandate is the least restrictive means of furthering that compelling interest, as to both the Air Force generally and as to individual Plaintiffs in particular. The Air Force has demonstrated that its process for consideration of religious exemptions was not simply “theater” or “a sham,” but was a process that adhered to the requirements of the law, most specifically RFRA. These conclusions mean that Plaintiffs do not have sufficient likelihood of success on the merits of either their RFRA claim or their Free Exercise of Religion claim to warrant issuance of a preliminary injunction.

Yesterday a notice of appeal to the U.S. 8th Circuit Court of Appeals was filed.

Intervenors Say USAF Senior Leaders Told To Deny All Religious Exemptions To Vaccine Mandate

In a Memorandum In Support of a Preliminary Injunction (full text) filed on behalf of 230 intervening plaintiffs in Doster v. Kendall, (SD OH, filed 5/3/2022), plaintiffs allege:

The 2021 CORONA Conference was held at  the United States Air Force Academy. (Id.) Whistleblowers have reported that all Chaplains and all persons other than those MAJCOM commanders responsible for adjudicating accommodation requests to the Air Force’s vaccine mandate, were asked to leave the room, so that the Secretary of the Air Force’s expectations concerning religious accommodation requests could be communicated to Air Force senior leaders....  Upon information and belief, the Secretary of the Air Force and/or his designees, communicated that no religious accommodations could or should be approved for anyone who would be remaining in the Department of the Air Force....

As of the date of the Intervening Complaint, the Department of the Air Force has received thousands of requests for religious accommodation, has only approved 42 – all of them at the end of their careers, who were otherwise eligible for an administrative exemption, and has denied 5,129 initial requests; and 1,692 final appeals, for a total of 6, 821 denials. In the meantime, the Air Force currently has granted 1,013 medical exemptions, and 1,273 administrative exemptions....  As of April 12, the Air Force has administratively separated 261 active-duty Airmen.... The granting of more than two thousand medical and administrative exemptions belies any assertion that vaccination is mission-critical and that no exemptions can be granted....

(See prior related posting.) Coffee or Die Magazine reports on the filing.

Supreme Court Refuses Interim Relief In Airman's Religious Challenge To COVID Vaccine Mandate

Yesterday, the U.S. Supreme Court by a vote of 6-3 refused to grant an injunction pending appeal in Dunn v. Austin, (Docket No. 21A599, April 18, 2022). Justices Thomas, Alito and Gorsuch would have granted relief. At issue was a suit by an Air Force Reserve officer who has religious objections to the COVID vaccine. His request for a religious exemption from the military's vaccine mandate was denied. The history is explained in the officer's Emergency Application for Injunction Pending Appeal:

[T]he district court denied a preliminary injunction and an injunction pending appeal. While the motion for a preliminary injunction was pending, respondents removed applicant from his command; he does not seek reinstatement to that post, but seeks only protection against further punishment, including a discharge, because of his religious beliefs. After entering interim relief, the United States Court of Appeals for the Ninth Circuit denied an injunction pending appeal in a one-page order over a dissent by Judge Bade.

(Full text of district court's ruling and the 9th Circuit's decision.) New York Times reports on the Supreme Court's ruling.

Another Suit Seeks Religious Exemptions From Military's Vaccine Mandate

Yet another group of military personnel have filed suit challenging the military's COVID vaccine mandate.  As in a number of other cases, plaintiffs complain that while regulations allow religious exemptions, almost all applications for them are denied.  The complaint (full text) in Roth v. Austin, (D NE, filed 3/8/2022), was filed by 36 Air Force and Air National Guard members who allege that their rights under RFRA and the First Amendment have been infringed. WOWT reports on the lawsuit.

Air Force Reservist With Religious Objection To COVID Vaccine Wins Injunction

In Poffenbarger v. Kendall, (SD OH, Feb. 28, 2022), an Ohio federal district court issued a preliminary injunction barring the Air Force from taking further adverse action against an Air Force reservist who refuses for religious reasons to comply with the military's COVID vaccine mandate.  The court concluded that plaintiff's rights under both RFRA and the free exercise clause were violated, saying in part:

Defendants have not shown that the Air Force’s action meets the least-restrictive-means test. The evidence indicates that the Air Force has granted virtually zero exemptions to the COVID-19 vaccine mandate on religious grounds.... At the same time, the Air Force has granted thousands of exemptions to the COVID-19 vaccine mandate on non-religious grounds.... This supports that less restrictive means of furthering the Air Force’s interests are being provided (even if only on a “temporary” basis) on non-religious grounds. And, the Defendants have not shown why such less restrictive means cannot likewise be provided to Poffenbarger.

Springfield News-Sun reports on the decision.

Air Force Officer Gets Injunction Against Required COVID Vaccine

In Air Force Officer v. Austin, (MD GA, Feb. 15, 2022), a Georgia federal district court, invoking RFRA and the 1st Amendment, granted a preliminary injunction to an Air Force officer who sought a religious exemption from the Air Force's COVID vaccine mandate.  The court said in part:

[T]he Court agrees with Plaintiff’s argument that Defendants haven’t “shown that vaccination is actually necessary by comparison to alternative measures[]” since “the curtailment of free [exercise] must be actually necessary to the solution.”...

Moreover, one must keep in mind that the Air Force has rejected 99.76% of all religious accommodation requests.... With such a marked record disfavoring religious accommodation requests, the Court easily finds that the Air Force’s process to protect religious rights is both illusory and insincere. In short, it’s just “theater.”...

Defendants’ COVID-19 vaccination requirement allows service members to refuse vaccination for secular reasons while disallowing refusal based on religious reasons.... No matter whether one service member is unvaccinated for a medical reason and another unvaccinated for a religious reason, one thing remains the same for both of these service members—they’re both unvaccinated. In other words, both of these service members pose a “similar hazard” to Defendants’ compelling interest in “[s]temming the spread of COVID-19” within the military....

[W]hat real interest can our military leaders have in furthering a requirement that violates the very document they swore to support and defend? The Court is unquestionably confident that the Air Force will remain healthy enough to carry out its critical national defense mission even if Plaintiff remains unvaccinated and is not forced to retire.

Thomas More Society issued a press release announcing the decision. 

Air Force Officer Sues After Accommodation For Religious Objection To COVID Vaccine Is Denied

Suit was filed last week in a Georgia federal district court by a female Air Force officer who has served in the military for 25 years and who was forced into retirement when she refused for religious reasons to take any of the current COVID vaccines.  Her request for a religious accommodation was denied.  The complaint (full text) in Air Force Officer v. Austin, (MD GA, filed 1/6/2022), alleges in part:

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....

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 unknown long-term effects would violate this belief.

Plaintiff claims that the Air Force's actions violate RFRA and the 1st Amendment. Thomas More Society issued a press release announcing the filing of the lawsuit. 

Air Force Changes Rules To Accommodate Religious Headgear and Beards

As reported by the Air Force Times, the Air Force earlier this month (Feb. 7) amended its Dress and Personal Appearance rules to allow airmen to request a waiver to permit wearing of conservative religious apparel, (Full text of amended Air Force Instruction.) The amended rules specifically address the wearing of hijabs, beards, and turbans or under-turbans/ patkas with uncut beard and uncut hair. The Army issued similar rules in 2017. (See prior posting.) [Thanks to Scott Mange for the lead.]

Air Force Grants Religious Accommodation To Sikh Airman

In a press release last week, the ACLU announced that for the first time, the U.S. Air Force has granted a religious accommodation to a Sikh active duty airman to allow him to wear a turban, beard, and unshorn hair.  The U.S. Army had previously granted similar accommodations. (See prior posting.)

Air Force JAG OK's Religious References At Change of Command Ceremonies

In a legal opinion issued last December which is just now attracting attention, the U.S. Air Force Judge Advocate General has issued an opinion on the permissible extent of religious references during a change of command ceremony.  In OpJAGAF 2018-52 (Dec.19, 2018), the Air Force ruled:

[A] commander may:  briefly thank a Supreme Being (either generally, such as Providence, that Almighty Being, our Lord, or the Supreme Author of All Good; or specifically, such as Allah, Brahman, Christ, Ganesh, God, Yahweh, or even Beelzebub), have an invocation, and choose whomever he or she would like to provide the invocation. If the commander holds a personal promotion ceremony on the same day, a significant break must occur between the change of command and promotion ceremony in order for the commander to be freer in expressing his or her personal religious beliefs.  If a break does not occur, the commander must limit his or her religious comments to comments that are appropriate at the official change of command.

Friendly Atheist and Rewire News  report on the ruling.  The Military Religious Freedom Foundation plans to challenge the ruling.

Air Force Upholds Right of Commander To Refuse To Sign Certificate For Same-Sex Spouse

Stars and Stripes reported yesterday that the Director of the Air Force Review Boards Agency has granted an appeal by an Air Force Colonel who had been disciplined for refusing to sign a "certificate of appreciation" for the same-sex spouse of a master sergeant in his unit who was retiring.  Col. Leland Bohannon refused to sign the certificate because he thought it would signify his personal endorsement of a marriage that violates his religious beliefs.  Eventually the certificate was instead signed by a two-star General.  The retiring master sergeant however filed an Equal Opportunity complaint, and Bohannon was stripped of command of the Air Force Inspection Agency and removed from consideration for a promotion to brigadier general.

In a letter (full text) to members of Congress who had intervened on Bohannon's behalf, the Secretary of the Air Force wrote:

The Director concluded that Colonel Bohannon had the right to exercise his sincerely held religious beliefs and did not unlawfully discriminate when he declined to sign the certificate of appreciation.... The Air Force has a duty to treat people fairly and without discrimination on the basis of race, color, sex, national origin, or sexual orientation and met that duty by having a more senior officer sign the certificate.

The Air Force places a high value on the rights of its members to observe the tenets of their respective religions or to observe no religion at all. The decision on appeal applied current Air Force policy and the law.  It is an example of a situation in which protected, and potentially competing, interests must be carefully examined and resolved.