Air Force Officer v. Austin
| Docket Number | CIVIL ACTION NO. 5:22-cv-00009-TES |
| Decision Date | 15 February 2022 |
| Citation | 588 F.Supp.3d 1338 |
| Parties | AIR FORCE OFFICER, Plaintiff, v. Lloyd J. AUSTIN, III, individually and in his official capacity as Secretary of Defense; Frank Kendall, III, individually and his official capacity as Secretary of the Air Force; and Robert I. Miller, individually and his official capacity as Surgeon General of the Air Force, Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
Michael Hirsh, Woodstock, GA, Adam Hochschild, Pro Hac Vice, Plainfield, VT, Mary Catherine Hodes, Pro Hac Vice, Chesterfield, MO, Michael McHale, Pro Hac Vice, Omaha, NE, Stephen M. Crampton, Pro Hac Vice, Chicago, IL, for Plaintiff.
Zach A. Avallone, Cassie Snyder, Washington, DC, Kevin D. Abernethy, Lance Simon, DOJ-USAO, Macon, GA, for Defendants.
"Your religious beliefs are sincere, it's just not compatible with military service."1
That's about as blunt as it gets.
Relying on the protections of the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act, Plaintiff, a United States Air Force officer, seeks a preliminary injunction to protect her from our military's mandatory COVID-19 vaccination requirement.2 Although the Air Force claims to provide a religious accommodation process, it proved to be nothing more than a quixotic quest for Plaintiff because it was "by all accounts, ... theater." U.S. Navy SEALs 1–26 v. Biden , 578 F. Supp. 3d 822, 826 2022 WL 34443, at *1 (N.D. Tex. Jan 3, 2022) (). Despite thousands of requests for religious exemption, the Air Force hadn't granted a single one of them when Plaintiff filed her Complaint [Doc. 1].3 [Doc. 1, ¶ 171]. Why? Because until about two weeks ago, apparently no religious exemption from a COVID-19 vaccine was "compatible with military service." [Doc. 41-1, p. 1]. The Air Force defends its actions by arguing that the military has a compelling interest in "maintaining the health and readiness of its forces," and that interest is compelling enough to overcome any constitutional or statutory challenge to it. [Doc. 38, p. 27]. "But even in a pandemic, the Constitution cannot be put away and forgotten." Roman Cath. Diocese of Brooklyn v. Cuomo , ––– U.S. ––––, 141 S. Ct. 63, 68, 208 L.Ed.2d 206 (2020).
With the benefit of briefing, oral argument, and a review of applicable law, the Court GRANTS Plaintiff's Motion for Preliminary Injunction [Doc. 2].
In response to a topic that needs no introduction, the Secretary of the United States Department of Defense, Defendant Lloyd J. Austin, III, issued a mandate ("Department of Defense Military Mandate") for all service members of the Armed Forces under Department of Defense authority on active duty or in the Ready Reserve to receive a COVID-19 vaccine. [Doc. 1, ¶ 23]; see generally [Doc. 2-3]. Issued on August 24, 2021, the Department of Defense Military Mandate states, "The Military Departments should use existing policies and procedures to manage mandatory vaccination of Service members to the extent practicable." [Doc. 1, ¶¶ 23–24]; [Doc. 2-3, p. 1].
For years, the Air Force, along with the other military departments, has enacted and enforced mandatory policies designed to prevent the spread of infectious diseases. [Doc. 1, ¶¶ 25–28]; see generally [Doc. 2-9]. However, the applicable Air Force policy, Air Force Instruction (AFI) 48-110, contains language that carves out medical exemptions from compliance due to "[e]vidence of immunity based on serologic tests, documented infection, or similar circumstances." [Doc. 1, ¶¶ 25, 27]; [Doc. 2-9, p. 12]. Even though this specific medical exemption exists within AFI 48-110, the Department of Defense Military Mandate states that "[t]hose with previous COVID-19 infection are not considered fully vaccinated." [Doc. 1, ¶ 29]; [Doc. 2-3, p. 1]. Interestingly, the Department of Defense Military Mandate exempts "[s]ervice members who are actively participating in COVID-19 clinical trials ... from mandatory vaccination against COVID-19 until the trial is complete in order to avoid invalidating such clinical trial results." [Doc. 1, ¶ 30]; [Doc. 2-3, p. 1].
On September 3, 2021, the Secretary of the United States Air Force, Defendant Frank Kendall, III, issued a mandate ("Air Force Military Mandate") requiring all active duty service members of the Air Force, "unless exempted," to be fully vaccinated by November 2, 2021, and for all Reserve service members, "unless exempted," to be fully vaccinated by December 2, 2021. [Doc. 1, ¶¶ 21, 31]; see generally [Doc. 2-4]. Importantly, "[i]ndividuals with previous COVID-19 infection or positive serology[,]" like Plaintiff, weren't included within the "exempt" category. [Doc. 1, ¶ 32].
For more than 25 years, Plaintiff has served our country as an officer in the United States Air Force with an unblemished disciplinary record. [Id. at ¶¶ 41, 43]. She is currently in Reserve status, serving in an administrative role that doesn't require deployment or engagement in physical military operations. [Id. at ¶¶ 44–45, 116]; [Doc. 2-12, p. 2]. Despite her full support of and compliance with the military's COVID-19 restrictions for mask wearing, social distancing, and remote working, Plaintiff received a written order ("Air Force Military Order") on September 21, 2021, requiring her to receive an initial and second dose of a COVID-19 vaccine and provide proof of vaccination by October 28, 2021, and November 18, 2021, respectively. [Doc. 1, ¶¶ 35, 49–50]; [Doc. 2-6, p. 1].
Plaintiff contracted COVID-19 in December 2020 and fully recovered. [Doc. 1, ¶ 59]. In January 2021, she took a COVID-19 antibody test and tested positive for COVID-19 antibodies, indicating natural immunity from the virus. [Id. at ¶¶ 58–61]. Then, almost a year later in December 2021, she took another antibody test where she tested positive for antibodies again. [Id. at ¶ 61]. However, neither the Department of Defense Military Mandate nor the Air Force Military Mandate consider her to be fully vaccinated. See, e.g. , [Doc. 2-3, p. 1]; [Doc. 2-4, p. 1]. As a devout Christian, 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." [Doc. 1, ¶¶ 51, 53]. Also, Plaintiff believes that to inject her body "with a novel substance of unknown long-term effects" such as a COVID-19 vaccine would violate her belief that her "body is the temple of the Holy Spirit."4 [Id. at ¶ 55]. Consequently, she faces the choice of complying with the Air Force's order to receive a COVID-19 vaccine or violating her religious beliefs. [Id. at ¶¶ 54, 96].
The compliance date from the Air Force Military Order—October 28, 2021—by which Plaintiff was to receive her initial dose "also applie[d] to exemptions." [Doc. 2-6, p. 1]. In other words, "by the due date," Plaintiff had to "provide either a completed request for religious accommodation ... or proof of a medical exemption approved by a military medical provider." [Id. ]. Using the Air Force's required form, Plaintiff timely submitted a completed "Religious Accommodation Request for Immunization Waiver" on October 13, 2021. [Doc. 1, ¶¶ 62, 65]; see generally [Doc. 2-11]; [Doc. 2-12]. As of January 31, 2022, the Air Force hadn't approved a single religious accommodation request, but it had disapproved 2,787 of them and had another 2,443 requests pending. DAF COVID-19 Statistics – Feb. 8, 2022, https://www.af.mil/News/Article-Display/Article/2919591/daf-covid-19-statistics-feb-8-2022/ (last visited Feb. 15, 2022).5
Plaintiff's religious accommodation request, however, is not one of those pending requests. On October 26, 2021, "[a]fter carefully considering the specific facts and circumstances[,]" the Air Force "disapprove[d]" Plaintiff's request for religious exemption on the basis that "the Department of Defense and the Department of the Air Force have a compelling government interest in maintaining a healthy and ready military force through vaccination" and that "less restrictive means of protecting [members of the military] from COVID-19 are unavailable[.]" [Doc. 1, ¶ 66]; [Doc. 2-15, p. 1]. In other words, the Secretary of Defense and the Secretary of the Air Force determined that they could not maintain a healthy and ready military force if Plaintiff did not receive a COVID-19 vaccine.
Within the 72-hour window to appeal the disapproval of her religious accommodation request, Plaintiff did so. [Doc. 1, ¶ 67]; [Doc. 2-15, p. 1]. Relying on the same "compelling government interests" language from the initial disapproval of Plaintiff's religious accommodation request, Defendant Robert L. Miller, the Surgeon General of the Air Force, denied her appeal, explaining that "[f]oregoing the [COVID-19] immunization requirement would have a real adverse impact on military readiness and public health and safety." [Doc. 1, ¶¶ 71–72]; [Doc. 2-16, p. 1].
Once Defendant Miller denied Plaintiff's appeal, the Air Force gave her less than a week to make a choice from among three options. [Doc. 1, ¶ 75]. Option one, she could "take the vaccine[.]" [Id. ]; [Doc. 2-17, p. 3]. Option two, to the extent she was eligible, she could "submit a retirement request[.]" [Doc. 1, ¶ 75]; [Doc. 2-17, p. 3]. And last, she could "refuse the vaccine in writing." [Doc. 1, ¶ 75]; [Doc. 2-17, p. 3]. The Air Force further informed Plaintiff that "[a]ny refusal to receive [a] COVID-19 vaccine, absent an approved exemption, may be punishable under the Uniform Code of Military Justice ..." and that "[c]ontinued refusal will result in involuntary reassignment" to the Individual Ready Reserve without pay, benefits, or...
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