Creaghan v. Austin
| Decision Date | 12 May 2022 |
| Docket Number | Civil Action No. 22-0981 (CKK) |
| Citation | 602 F.Supp.3d 131 |
| Parties | Mariella CREAGHAN, Plaintiff v. Lloyd AUSTIN, in his official capacity as Secretary of the United States Department of Defense, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Richard Thompson, Thomas More Law Center, Erin Elizabeth Mersino, Ann Arbor, MI, for Plaintiff.
Andrew Evan Carmichael, Cassie Snyder, U.S. Department of Justice, Civil Division, Washington, DC, Catherine Yang, Washington, DC, for Defendants Lloyd J. Austin, III, Frank Kendall.
Andrew Evan Carmichael, Cassie Snyder, U.S. Department of Justice, Civil Division, Washington, DC, Chibogu Nneka Nzekwu, Constitutional & Specialized Torts Litigation, Washington, DC, Daniel Luecke, Catherine Yang, Washington, DC, for Defendants Stephen N. Whiting, Robert I. Miller.
COLLEEN KOLLAR-KOTELLY, United States District Judge Plaintiff Mariella Creaghan ("Plaintiff" or "Captain Creaghan") is a Captain in the United States Space Force and religious objector of one of several vaccines mandated by her branch of service. Captain Creaghan's [11] Motion seeks preliminary relief from this Court barring Defendants from "punishing, prosecuting, or taking any adverse or retaliatory action against Plaintiff as a result of, or arising from, or in conjunction with Plaintiff's request for a religious accommodation or Defendants’ denial of Plaintiff's religious accommodation." As the Court explained in a similar case, requests for religious exemptions from military-mandated medical requirements "raise particularly difficult questions that implicate a storm of colliding constitutional interests." Navy SEAL v. Austin , 600 F.Supp.3d 1, 4 (D.D.C. Apr. 29, 2022). Although this case is much closer than Navy SEAL , the Court remains concerned that it lacks the competence to "evaluate the merits of military [epidemiological and tactical] expertise" or to "weigh technical issues of public health and immunology" necessary to resolve the case. Id. at 9. Justiciability is all the more uncertain given the unfixed, evolving science on which this vaccination mandate is based. These concerns permeate the merits of Plaintiff's claims as well. Accordingly, after careful review of the pleadings,1 the relevant legal and historical authorities, and the entire record, Court shall DENY Plaintiff's [11] Motion for Preliminary Injunction.
As this Court has previously noted, military vaccine mandates have a long history in this country. "[E]xecutive immunization requirements predate the birth of this country, with George Washington famously requiring members of the Continental Army to be inoculated against smallpox." Feds for Med. Freedom v. Biden , 25 F.4th 354, 357 n.6 (5th Cir. 2022) (Higginson, J., dissenting). Until August 2021, the United States Department of the Air Force ("Air Force") mandated a number of vaccines, including those against influenza, hepatitis A & B, mumps, rubella, and tetanus. See ECF 22-11 at 9. On August 24, 2021, the Secretary of Defense directed the Air Force to add another vaccine to the list—vaccination combatting COVID-19. Id. at 8. The Secretary of Defense explained that, "[t]o defend this Nation, we need a healthy and ready force." Navy SEAL , 600 F.Supp.3d at 5. Accordingly, "[a]fter careful consultation with medical experts and military leadership, and with the support of the President [of the United States], [the Secretary of Defense] determined that mandatory vaccination against coronavirus disease 2019 (COVID-19) is necessary to protect the Force and defend the American people." Id.
Consistent with that order, the Secretary of the Air Force, on September 3, 2021, directed all active duty servicemembers (within the Air Force and Space Force) to be fully vaccinated against COVID-19 by November 2, 2021.2 All Air Force orders are applicable to the United States Space Force ("Space Force") as a constituent branch of the Air Force and all Space Force servicemembers (called "Guardians"). ECF 22-4 at 1. On December 7, 2021, the Secretary of the Air Force issued an order providing for "medical, religious[,] or administrative exemptions," and temporarily exempted servicemembers from discharge or adverse action while exemption requests were pending.3 The recognition of these exemptions was largely perfunctory, as requests for COVID-19 vaccination exemptions are governed by the same rules and regulations, active since 2018, that govern all other requests for exemptions from other vaccinations. ECF 22-4 at 2. As of April 26, 2022, the Air Force has granted 460 medical exemptions (including seven for Space Force Guardians), and 41 religious exemptions.4
Pursuant to that policy, AFI 48-110_IP (Oct. 7, 2013) as amended (Feb. 16, 2018), a Guardian seeking a religious exemption first submits a written request to the applicable commanding officer. ECF 22-5 at 2. The Guardian then consults with the applicable commanding officer and a medical military provider, who address, respectively, the effect of nonvaccination on the Guardian's mission and the Guardian's health. Id. at 4. The Guardian must also consult with an Air Force chaplain, and the chaplain assesses the sincerity and religiosity of the exemption request. Id. With these three assessments in hand, the omnibus request is reviewed by each commanding officer in the Guardian's chain of command. Id. at 5. Each commanding officer makes a recommendation (termed an "endorsement") as to whether to grant the exemption request, but the ultimate decision is made by the "approval/disapproval authority."5 For Space Force Guardians, the approval authority is the Commander of Space Operations Command, Lt. Gen. Stephen N. Whiting. See id. at 18. Disapproval may be appealed to the Air Force Surgeon General. ECF No. 22-5 at 2. To assist Lt. Gen. Whiting in his review, as the approval authority, the Space Force employs "Religious Resolution Teams" ("RRT"). DAFI 52-201 at 6. These teams are made up of at least one commander, chaplain, public affairs officer, and staff judge advocate. Id. Where a medical objection is raised, the team must also include a medical provider. Id. At each stage of review, those involved determine: (1) the sincerity of the religious request; (2) the military interests at issue; (3) whether those interests are compelling; (4) whether vaccination substantially burdens the Guardian's religious belief(s); and (4) whether vaccination is the least restrictive means to accomplish the military's interests in vaccinating that particular Guardian. Id. at 7-8.
A Guardian whose appeal has been denied and who still objects to vaccination is subject to discipline, up to and including administrative, general (under honorable conditions) discharge and military courts-martial. ECF No. 6 at 4-5. Before adverse action may be taken on continued objection to COVID-19 vaccination, noncompliance must first be reviewed by a high-ranking officer (a Colonel or higher). Id. at 2.
Plaintiff is a Space Force Captain assigned to the Space Force's National Reconnaissance Office ("NRO") in Chantilly, Virginia. ECF No. 22-10 at 1. Her precise role is somewhat difficult to discern from the record thus far, perhaps because much of it involves particularly sensitive, classified operations. From what the Court understands, the NRO provides offensive and intelligence support to the Air Force, other branches of the military, and the intelligence community. ECF No. 22-10 at 2. It manages a number of satellite systems and spacecraft that are evidently capable of engaging in electronic warfare and that also gather signals and geospatial intelligence. Captain Creaghan is a "Mission Director." Id. She "has operational control and on-line decision-making responsibilities for all aspects of NRO operations during [her] shift." Id. That includes the direction of those assets, ensuring the operational health of the assets, overseeing the security of the site in which those assets are managed, and overseeing "daily reports for [the] NRO and government senior leaders." See id. at 2-3. She works in a compartmentalized area known as a "SCIF" (Secure Compartmentalized Information Facility) that is fully indoors and limits airflow. Id. at 3. Because all her work is classified, she cannot telework. See id. The nature of her work evidently involves frequent interpersonal contact within her workspace. See id. at 4.
On September 30, 2021, Plaintiff requested a religious accommodation. She articulated a religious belief predicated on the religious view that life begins at conception, and insisted that receiving any COVID-19 vaccine would contravene her sincerely held belief because each vaccine's development involved fetal cells in some way. ECF 22-13 at 22-24. She included in her request a litany of supporting documents from religious figures in her life testifying to the sincerity of her belief and its connection to her Catholic faith. See, e.g. , ECF No. 22-13 at 31. On October 18, 2021, an Air Force chaplain concluded that she held a sincerely held religious belief and that vaccination against COVID-19 would substantially burden that belief. Id. at 62. On December 14, 2021, the Religious Resolution Team assigned to Captain Creaghan's request agreed with the chaplain, and also concluded that the Space Force had a compelling government interest in requiring her health as a Space Force Mission Director and that vaccination was the least restrictive means of accomplishing that interest. Id. at 63-66. That report concluded that "[s]ervice members have a responsibility to maintain their health and fitness, meet individual medical readiness requirements, and report medical and health issues that may affect their readiness to deploy or [medical] fitness to continue serving in an active status." Id. at 66.
Notwithstanding this finding, Captain Creaghan's direct commanding officer, Lt. Col. Benjamin...
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