Plaintiff attorneys: Near final blow dealt to Air Force by Sixth Circuit over vaccine mandate

Judges unanimously uphold class wide injunction protecting U.S. Air Force personnel

(The Center Square) – All three judges on a U.S. Sixth Circuit Court of Appeals panel unanimously upheld a class wide injunction protecting unvaccinated U.S. Air Force personnel from being disciplined over the Department of Defense’s COVID-19 vaccine mandate.

In their 56-page ruling Tuesday, the panel denied the federal government’s request to overturn a lower court’s ruling after previously denying its request for an emergency stay.

In Hunter Doster, et al. v. Hon Frank Kendall, et al., Sixth Circuit Judges Eric Murphy, John Bush and Raymond Kethledge affirmed the July ruling of U.S. District Judge Matthew McFarland in the Southern District of Ohio in Cincinnati. McFarland first issued a preliminary injunction preventing retaliation against 18 plaintiffs in the Air Force whose Religious Accommodation Requests (RARs) were denied. He also granted class status and an injunction applying to the class as the lawsuit continues. The Air Force lost in their appeals to his rulings, which remain in effect.

In their ruling, the Sixth Circuit judges refuted every argument made by the federal government. Doing so likely prevented any further appeal and provided a helpful foundation for judges to rule similarly in other cases, attorneys suing the federal government over vaccine mandates argue.

Steve Crampton, general counsel with the Thomas More Society, which is representing Air Force personnel in a separate case in Georgia, told The Center Square, “This decision is a thorough and detailed analysis which rebuts and refutes the government’s best arguments in favor of the vaccine mandate. In the end, we anticipate that any attempts to appeal or to obtain a rehearing en banc will be futile. This is a tremendous victory for religious freedom and ought to be the final word on the matter.”

He also said the ruling “will provide a wonderful road map for the judge in deciding our preliminary injunction motion as well.”

In a separate case in Texas, TMS filed a class action lawsuit for U.S. Coast Guard members whose RARs were denied and created a portal for affected personnel to join.

In another case in Florida, Liberty Counsel is seeking permanent class status for U.S. Marine Corps personnel whose RARs were denied. Liberty Counsel believes the Sixth Circuit ruling helps its case.

Liberty Counsel founder and chairman Mat Staver said the court’s “great decision” set “a good precedent for our upcoming argument at the Eleventh Circuit Court of Appeals and our January trial seeking a permanent classwide injunction for the U.S. Marines.”

At issue in the Ohio case is the alleged blanket denial of nearly 10,000 Air Force personnel’s’ RARs, which the plaintiffs argue violated the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the U.S. Constitution. Both McFarland and the Sixth Circuit rejected the Air Force’s argument that the thousands of cases should be tried separately and not as a class.

Judge Murphy wrote, “the Air Force did not even undertake this individualized inquiry during this litigation, let alone prove a compelling ‘marginal’ interest for any specific Plaintiff. Most glaringly, the Air Force’s opening brief did not describe the duties of a single Plaintiff.”

The Air Force also claimed it doesn’t have a general policy of denying RARs but uses “an individualized process that accounts for facts particular to each service member.”

But the Sixth Circuit said the facts proved otherwise.

Of the roughly 10,000 RARs filed, only 135 were approved, and to those already leaving the service. By July 2022, the Air Force had “administratively separated” 834 members who’d filed RARs it rejected. It also granted zero RARs to personnel who weren’t planning on leaving the service in a year. At the same time, as of December 2021, it had approved 2,047 medical exemptions and 2,247 administrative exemptions, the court found.

The judges said the Air Force failed “to identify the specific duties or working conditions of a single Plaintiff. It instead seeks to satisfy RFRA with the ‘general interests’ underlying its vaccine mandate. We are thus asked to deny that common questions exist for purposes of certifying a class but to accept that common answers exist for purposes of rejecting all 18 Plaintiffs’ claims on their merits.”

Judge Murphy wrote, “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. We thus may uphold the Plaintiffs’ injunction based on RFRA alone.”

Murphy also noted that the “Air Force’s treatment of their exemption requests” raised key questions. “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?” he asked. “And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones?”

In affirming McFarland’s ruling, the judges said the district court could answer these questions for the entire class and determine if the Air Force’s alleged policies violate RFRA and the First Amendment. “A ruling for the class also would permit uniform injunctive relief against the allegedly illegal policies. We affirm,” the judges wrote.

In response to the Air Force arguing district courts don’t have jurisdiction, the Sixth Circuit agreed with McFarland, saying they do. Murphy wrote, “RFRA contains a right to sue: ‘A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government,’” adding that “RFRA also applies to the Air Force and its vaccine mandate.”

The Air Force’s argument that RARs were rejected for health reasons “because those working in ‘close physical contact’ can spread COVID-19” also fell flat. Murphy pointed out “the Air Force has allowed medical or administrative exemptions even when these exemptions undercut that interest,” citing specific examples.

“Perhaps most striking,” he wrote, was the Surgeon General denying a class member’s RAR whose medical exemption was granted in the same month despite her duties not changing.

“The Air Force does not explain why service members who remain unvaccinated because of their pending retirement or pregnancy pose less of a risk of spreading COVID-19 than those who remain unvaccinated because of their religion,” he added.

The Air Force’s argument that denying RARs would jeopardize mission readiness was also rejected because “service members who obtain medical or administrative exemptions generally cannot deploy because the Air Force treats anyone who has not taken a COVID-19 vaccine as nondeployable,” Murphy wrote. “So even though the Surgeon General denies religious exemptions on the ground that the Air Force ‘must be able to leverage our forces on short notice,’ the Air Force does not believe that this ‘immediately deployable’ concern also requires it to compel the vaccination of a service member who has an allergy or plans to retire in the near future.

“The Air Force also fails to explain how temporarily retaining class members – rather than immediately discharging them – will harm any operational concerns. Its own willingness to exempt these thousands of class members from its mandate while it processed their exemption requests over many months undercuts any such urgent need.”

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