Poffenbarger v. Kendall
| Docket Number | Case No. 3:22-cv-1 |
| Decision Date | 28 February 2022 |
| Citation | 588 F.Supp.3d 770 |
| Parties | Michael POFFENBARGER, Plaintiff, v. Frank KENDALL, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Thomas B. Bruns, Bruns, Connell, Vollmar & Armstrong, LLC, Zachary Gottesman, Gottesman & Associates, Cincinnati, OH, Christopher David Wiest, Crestview Hills, KY, for Plaintiff.
Courtney Danielle Enlow, DOJ-Civ, Washington, DC, for Defendants.
ENTRY AND ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION AND ISSUING A PRELIMINARY INJUNCTION
Pending before the Court is the Motion for Preliminary Injunction (within Doc. No. 2) (the "Motion") filed by Plaintiff Michael Poffenbarger ("Poffenbarger"). Poffenbarger is a reservist in the United States Air Force (the "Air Force") stationed at Wright-Patterson Air Force Base. In short, Poffenbarger's claims in this lawsuit challenge the Air Force's administration of its COVID-19 vaccination
mandate, in particular its administration of religious exemption requests. He alleges that there is a "systematic effort" by the Defendants1 and those who report to them to "flagrantly violate federal law ... in a concerted and deliberate effort to violate the rights of members of the Air Force" under the Religious Freedom and Restoration Act ("RFRA") and the Free Exercise Clause of the First Amendment, as demonstrated by the Air Force's failure "to approve a single religious accommodation request" while approving "thousands of administrative or medical exemptions to the same requirement." (Doc. 1 at PageID 2-3.) With respect to the Motion presently before the Court, Poffenbarger seeks broad preliminary injunctive relief, including issuance of a preliminary injunction for "the entirety of those in the Air Force's religious exemption process whose beliefs have been found to be sincere, as well as those who have already had their requests denied despite their sincerely held beliefs" (Doc. No. 26 at PageID 1038).
Defendants (in their official capacity only) ("Defendants") filed an opposition to the Motion, asking that Poffenbarger's requested preliminary relief be denied for multiple reasons. (Doc. No. 22.) Defendants argue that Poffenbarger fails to satisfy the standard for preliminary injunctive relief (with none of the factors weighing in favor of Poffenbarger) and that, even if the Court disagrees and decides to issue a preliminary injunction, "any relief should be no broader than necessary to provide relief to" Poffenbarger only, not others. (Id. at PageID 371.)
The Court finds that a relatively limited preliminary injunction should be issued that essentially preserves the status quo during the pendency of this matter to prevent Defendants from imposing any further adverse action against Poffenbarger (only) for his refusal to comply with an order requiring him to receive a COVID-19 vaccine. For the reasons discussed below, and in accordance with Federal Rule of Civil Procedure 65, the Court GRANTS, IN PART, Poffenbarger's request for issuance of a preliminary injunction and ISSUES a preliminary injunction whose terms are specifically set forth in this Order's CONCLUSION section.
According to his testimony at the preliminary injunction hearing, Poffenbarger enlisted in the Air Force in 2005 and served for a number of years as an active duty member. His service included two overseas deployments. In 2014, Poffenbarger decided to leave active duty and transfer to the reserves. He has been a Christian for his entire life, and he has a wife and four children under the age of ten. Poffenbarger has full-time civilian employment, working as a field surveyor. He does not receive health care benefits through that employment; he and his family receive health care benefits through his service with the Air Force Reserve.
Poffenbarger is a member of the Air Force Reserve who was commissioned as a Second Lieutenant in the fall of 2021. (Doc. No. 22-18 (Kojak Decl.) at PageID 967-68.) He is assigned to work as an intelligence officer. (Id. ) Before he can perform his duties as an intelligence officer, Poffenbarger must attend intelligence technical school. (Id. ; Doc. No. 22-17 (Maguinness Decl.) at PageID 962-63.) Due to the sensitive nature of the training, which includes the use of classified materials and systems, the training takes place in a secured facility. (Doc. No. 22-17 at PageID 962-63.) Windows and doors at secured facilities must remain closed. (Id. ) The classrooms within the secured facility are consistently fully occupied (each with approximately 15 students and one instructor) and are not large enough to ensure six feet of social distancing among students and instructors. (Id. ) Current Air Force policy does not permit any unvaccinated individuals to attend new training courses because service members would be in close contact with others during training. (Doc. No. 22-18 at PageID 968.)
If Poffenbarger were to complete training, then his duties would require the use of classified materials and systems. (Doc. No. 22-18 at PageID 969-70.) For security purposes, classified systems (e.g., a classified computer network) cannot be accessed, and classified materials cannot be viewed, outside a secured facility. (Id. ) Therefore, to perform his duties as an intelligence officer, Poffenbarger would be required to work one weekend (eight hours both days) every month in a secured facility, as well as to be prepared for potential deployment worldwide. (Id. at PageID 969-70, 973.) As a reservist, he does not work full-time for the Air Force. (Id. )
During ordinary weekends working as a reserve, Poffenbarger would routinely be working in close physical contact with 10 to 12 service members. (Doc. No. 22-18 at PageID 969-70.) In the secured facility, his desk would be in a secure room (approximately 1,500 square feet in size) in a group of about eight desks, each separated from one another by large bookcases. (Doc. 11-1 at PageID 291-92.) According to Poffenbarger, several of the full-time staff currently telework most days during the month. (Id. at PageID 292.) Poffenbarger acknowledged at the preliminary injunction hearing that he needs to be present at the secure room to access the confidential materials that he uses for his military duties, and that his work requires interaction with other military personnel.
On September 3, 2021, Defendant Kendall, in his role as Secretary of the United States Air Force, issued a memorandum with the subject: "Mandatory Coronavirus Disease 2019 Vaccination of Department of the Air Force Military Members." (Doc. No. 1-1; see also Doc. No. 2-1.) That memorandum stated, in part:
On 24 August 2021, the Secretary of Defense issued a mandate for all members of the Armed Forces under Department of Defense authority on active duty or in the Ready Reserve, including the National Guard, to immediately begin full vaccination
against COVID-19. ... Only COVID-19 vaccines that receive full licensure from the Food and Drug Administration (FDA) will be utilized for mandatory vaccinations unless a military member volunteers to receive a vaccine that has obtained U.S. Food and Drug Administration Emergency Use Authorization or is included in the World Health Organization's Emergency Use Listing. Individuals with previous COVID-19 infection or positive serology are not considered fully vaccinated and are not exempt.
(Doc. No. 1-1.)
The Air Force has granted temporary medical exemptions and administrative exemptions from the COVID-19 vaccine mandate. (See, e.g., Doc. No. 22-16 (Little Decl.) at PageID 885; Doc. No. 22-19 (Poel Decl.) at PageID 985.) Medical exemptions are provided in situations where medical issues are temporary (e.g., during pregnancy) or permanent (e.g., allergic or severe adverse reaction to ingredients in a vaccine). (Doc. No. 22-19 at PageID 985.) Granting these exemptions as temporary exemptions "allows individuals who have a temporary medical condition ... to get vaccinated after that temporary condition has resolved" and "also allows the Air Force to reassess individuals with allergies or severe adverse reactions to determine whether a vaccine has been approved which [sic] constitutes the member can safely take." (Id. )
The Air Force also has policies and procedures for addressing religious accommodation requests, including requests for a religious exemption from the COVID-19 vaccine mandate. (Doc. No. 22-13 (Streett Decl.) at PageID 744, 747.) Poffenbarger alleged in his Complaint that, "[u]pon information and belief, [Defendant Kendall, the Secretary of the Air Force] gave directives to Commanders, through official and/or unofficial channels, that religious accommodations were not to be granted to the COVID-19 vaccination
policy." (Doc. No. 1 at PageID 6.)
According to a declaration submitted by the Defendants, "[t]o ensure commanders are properly informed of the facts and circumstances of the [religious exemption] request and able to make an informed recommendation and/or decision, the Air Force uses a Religious Resolution Team, which is a multidisciplinary team that advises commanders regarding resolution of religious liberty matters." (Doc. No. 22-13 at PageID 746.) Yet, the requirement for using that team was temporarily waived by the Air Force Reserve Command for purposes of assessing religious exemption requests for the COVID-19 vaccine mandate. (Id. at PageID 747; Doc. No. 22 at PageID 343.)
Based on a declaration submitted in another pending federal case, as of February 3, 2022, the Air Force had granted 1,513 temporary medical exemptions and 2,314 total administrative exemptions from the COVID-19 vaccine mandate. (Doc. No. 26-1.) As of the same date, the Air Force had granted only nine religious exemption requests. 2
(Id. ) With respect to the religious exemption requests, the Air Force...
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