Vance v. Wormuth

• Decision Date: 12 April 2022
• Docket Number: Civil Action 3:21-CV-730-CRS
• Parties: EDWARD W. VANCE PLAINTIFF v. CHRISTINE WORMUTH, et al. DEFENDANTS
• Court: U.S. District Court — Western District of Kentucky

EDWARD W. VANCE PLAINTIFF v. CHRISTINE WORMUTH, et al. DEFENDANTS

Civil Action No. 3:21-CV-730-CRS

United States District Court, W.D. Kentucky, Louisville

April 12, 2022

MEMORANDUM OPINION

Chants R. Simpson III, Senior Judge.

Edward W.Vance is a Captain in the United States Army. He was assigned to the Arctic Support Command (Provisional) in Fort Wainwright, Alaska, until August 15, 2021 when he was transferred to Fort Gordon, Georgia, to attend the Signal Captains Career Course, a required course for advancement of his military career. He graduated from the course on February 4, 2022 and presently remains at Fort Gordon.^[1]

On December 15, 2020 while still in Alaska, Vance requested a “religious accommodation for a waiver of Army Regulation 40-562, Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases, regarding an exemption from all future immunizations.” 12/15/2020 Mem., DN 1-1, PageID #19-21.^[2] A May 2021 initial denial of his request by the Army prompted this lawsuit against Secretary of the Army Christine Wormuth; the Surgeon General of the Army, Lt. General R. Scott Dingle; Sr. Official Mark R Lewis, Asst. Secretary of the Army for Manpower and Reserve Affairs; and the United States of America (collectively “the Army” herein).^[3] Although his appeal of the initial denial remains pending, Vance filed suit seeking declaratory judgment and injunctive relief on his claims for violations of the Religious Freedom and Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4 and his First Amendment right to free exercise of religion under the United States Constitution.

Shortly thereafter, Vance filed an Emergency Motion for Preliminary Injunction.^[4] He contends that he need not delay in seeking relief from the Court until the Army's review process is complete because it is a foregone conclusion that the Army will deny his appeal and will immediately begin separation proceedings against him for his refusal to receive the COVID-19 vaccine. The Army responded to the motion for preliminary injunction objecting both procedurally and on the merits. Shortly after briefing was completed on the injunction motion, the Army filed a motion to dismiss the case for lack of jurisdiction pursuant to Fed.R.Civ.P 12(b)(1), citing a number of developments that impact Vance's claims. The dismissal motion has been fully briefed^[5] and is now submitted to the Court for decision.

For the reasons articulated below, the Court finds on the present record that Vance's claims are not ripe. The Court therefore lacks subject matter jurisdiction and the case will be dismissed without prejudice in accordance with Fed.R.Civ.P. 12(h)(3).

A. Legal Framework

Federal Rule of Civil Procedure 12(b)(1) permits a party to move for dismissal of a complaint when the court lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “The court lacks subject-matter jurisdiction if the action is not ripe for review.” 4th Leaf, LLC v. City of Grayson, 425 F.Supp.3d 810, 815 (E.D. Ky. 2019) quoting Bigelow v. Mich. Dep't of Nat. Res., 970 F.2d 154, 157 (6th Cir. 1992). A party seeking to invoke the jurisdiction of a federal court must demonstrate that the case is within the competence of that court. See Kentucky Press Ass'n, Inc. v. Kentucky, 454 F.3d 505, 508-09 (6th Cir. 2006) (Powell, J., dissenting) (quoting Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3522, at 45 (1975)). “A court considers 12(b)(1) arguments before any additional 12(b) motions because any remaining arguments would be moot if subject-matter jurisdiction is lacking. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).” 4th Leaf, LLC v. City of Grayson, 425 F.Supp.3d 810, 815-16 (E.D. Ky. 2019).

A Motion to dismiss for lack of subject matter jurisdiction is posed either as a “facial attack” which questions the sufficiency of the pleadings or a “factual attack” which challenges the factual existence of subject matter jurisdiction. See United States v. Ritchie, 15 F.3d 592, 598 (6^th Cir. 1994). In addressing a factual challenge such as the one we have here, the Court “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case” and to consider evidence outside the pleadings Ritchie, 15 F.3d at 598; Nichols v. Muskingum College, 318 F.3d 674, 677 (6^th Cir. 2003).

The United States Court of Appeals for the Sixth Circuit applied the framework established in Mindes v. Seaman, 453 F.2d 197 (5^th Cir. 1971) in addressing the justiciability of claims involving internal military decisions. Harkness v. Sec'y of the Navy, 858 F.3d 437, 444 (6^th Cir. 2017).^[6]

Under Mindes' multi-step inquiry, the case must meet the initial requirements for justiciability that (1) there is an allegation of the deprivation of a constitutional right or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (2) there has been exhaustion of available intraservice corrective measures. In addition to these threshold requirements of Mindes, the Court must find that the dual prerequisites of standing and ripeness are met. As noted in Robert v. Austin, No. 21-cv-02228-RM-STV, 2022 WL 103374 (D.Colo. Jan. 11, 2022), “The doctrines of standing and ripeness substantially overlap in many cases.” S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1157, (10th Cir. 2013). To satisfy Article III's standing requirements, a plaintiff must show: (1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 1153. In evaluating ripeness, often characterized as standing on a timeline, “the central focus is on whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.” Id. at 1158 (quotation omitted).

Ripeness is a justiciability doctrine designed “to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (internal quotation omitted). The doctrine is drawn “both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal citation and quotation omitted).” Ripeness “becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all.” Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 294 (6^thCir. 1997).

The United States Court of Appeals for the Sixth Circuit has indicated that “[r]ipeness requires that the ‘injury in fact be certainly impending.' National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996). Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for the court's review. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977).” Magaw, 132 F.3d at 280.

The Court considers three factors in the ripeness inquiry: (1) the likelihood that the harm alleged by the plaintiff will ever come to pass; (2) whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties' respective claims; and (3) the hardship to the parties if judicial relief is denied at this stage in the proceedings. Ky. Press Ass'n, 454 F.3d at 509.^[7] B. Analysis

The facts upon which this analysis rests are undisputed.^[8]

Vance voluntarily received immunizations and vaccines in prior years as the Army required routinely or for specific deployment. Vance sought the exemption from immunizations after embracing a religious conviction which is antithetical to vaccination. This belief began to take shape in January 2017 when Vance became a Christian and culminated in his decision in 2019 to decline further vaccinations. In his request he explained the catalysts for his beliefs and concluded “[I]t became clear that I cannot practice my religion according to my convictions while still receiving immunizations and vaccines researched, produced, and containing the ingredients which I stated above for the reason in the Bible referenced above.”

Army Regulation (“AR”) 40-562, Appx. D, Table D-1 lists vaccinations required for military personnel, either routinely or in the event of elevated risk factors. Vance seeks exemption from all future vaccinations required pursuant to AR 40-562. He also seeks exemption from vaccination with the COVID-19 vaccine. The COVID-19 vaccine was not required for military personnel at the time of his initial exemption request but has since been mandated for active duty service members. 2021 records reflect Vance was due for a number of vaccines including the COVID-19 vaccine. He declined them.

It is undisputed that Vance followed the procedures set forth in the applicable policy for religious accommodation, AR 600-20. Through this protocol, Vance's religious conviction was found by a chaplain to be sincere and recommendation was made through his chain of command that his request be approved. However, the Army Surgeon General initially denied the request in May 2021. On May 29, 2021, Vance appealed the decision. The request was returned for review through his new chain of...