Court Protects Air Force Class From Shot Mandate

Sep 12, 2022

CINCINNATI, OH — The Sixth Circuit Court of Appeals has denied the Department of the Air Force’s attempt to overturn class certification and a class-wide preliminary injunction that protects the entire U.S. Air Force while the lawsuit continues against the unlawful Department of Defense COVID shot mandate. 

The appeals court denied the Department of Air Force’s emergency motion to stay the class certification and injunction granted in Hunter Doster, et al. v. Hon Frank Kendall, et al., by district Judge Matthew W. McFarland, of the Southern District of Ohio, in July. 

Judge McFarland ordered the Department to not take any disciplinary or separation measures against a class of some 10,000 unvaccinated service members. The service members had alleged that the Department applied a general, discriminatory policy of denying their requests for religious exemptions from the Secretary of Defense’s vaccine mandate applicable to all members of the armed forces. The plaintiffs argued that the Department’s policy violated their rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause. 

Judge Matthew McFarland modified the members of the class that are protected to include: “All active-duty, active reserve, reserve, national guard, inductees, and appointees of the United States Air Force and Space Force, including but not limited to Air Force Academy Cadets, Air Force Reserve Officer Training Corps (AFROTC) Cadets, Members of the Air Force Reserve Command, and any Airman who has sworn or affirmed the United States Uniformed Services Oath of Office or Enlistment and is currently under command and could be deployed, who: (i) submitted a religious accommodation request to the Air Force from the Air Force COVID-19 vaccination requirement, where the request was submitted or was pending, from September 1, 2021 to the present; (ii) were confirmed as having had a sincerely held religious belief substantially burdened by the Air Force's COVID-19 vaccination requirement by or through Air Force Chaplains; and (iii) either had their requested accommodation denied or have not had action on that request.” 

The court also added that “any person acting in concert with Defendants” are also prevented from taking any adverse action against any Air Force service members regarding their request for religious accommodation from the COVID-19 shot.

Last Friday, the Sixth Circuit rejected the Department of Air Force’s argument that the plaintiffs were unable to satisfy requirements for class certification. 

The appeals court wrote, “From the very first paragraph of their Complaint, to their briefing in opposition to the Department’s motion now, the plaintiffs have alleged the existence of a ‘systematic effort’ by the Department to deny service members’ requests for religious exemptions categorically, while granting thousands of medical and administrative exemptions. The district court recognized as much when it thrice referenced what it called ‘Defendants’ clear policy of discrimination against religious accommodation requests’ in finding the commonality requirement met. And we think the district court was likely correct when it held that, on this record, that contention supports litigation of both a RFRA claim and a First Amendment free-exercise claim class-wide.” 

“RFRA provides that the federal government “may substantially burden a person’s exercise of religion” only when doing so “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” That restriction, as the Department itself emphasizes throughout its briefing, allows the Department to impose that burden on a service member’s exercise of her faith only as a last resort, after examining all the circumstances relevant to her individual case. A de facto policy to impose that burden upon class members in gross, regardless of their individual circumstances, would seem rather plainly to violate that restriction. Yet that would be the effect of the Department’s alleged policy to deny all requests for religious exemptions.” 

The Sixth Circuit further wrote, “We differ with the district court, however, as to what that relief might look like. The court appeared to assume that such relief would broadly enjoin the Department to provide a class-wide ‘religious accommodation relating to the COVID-19 vaccine mandate.’ But an appropriate remedy might more narrowly enjoin the Department to abolish the discriminatory policy, root and branch, and to enjoin any adverse action against the class members on the basis of denials of religious exemptions pursuant to that policy.” 

Liberty Counsel Founder and Chairman Mat Staver said, “This order by the Court of Appeals affirms that the Department of Defense and the Air Force violated religious free exercise rights of service members which is protected under the Religious Freedom Restoration Act and the First Amendment. This is a great victory for religious freedom, especially for these Air Force service members who love God and love America. These mandates will continue to crumble one by one in the courts.” 

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