Appeals Court Rejects Air Force’s Effort to Lift COVID-19 Vaccine Mandate Injunction

Appeals Court Rejects Air Force’s Effort to Lift COVID-19 Vaccine Mandate Injunction
Members of U.S. Air Force prepare to receive the Moderna COVID-19 vaccine at Osan Air Base in Pyeongtaek, South Korea on Dec. 29, 2020. (United States Forces Korea via Getty Images)
Zachary Stieber
The Air Force improperly adjudicated requests for exemptions from its COVID-19 vaccine mandate and has illegally only handed out exemptions to members who are on their way out, an appeals court stated on Nov. 29 as it rejected the military branch’s bid to lift an injunction against punishing thousands of unvaccinated servicemembers.

Eighteen servicemembers brought the suit in February, alleging that the military was violating the Religious Freedom Restoration Act by denying exemptions for members despite the members holding sincere religious beliefs against COVID-19 vaccination.

A federal judge imposed a preliminary injunction in July, ordering the branch to not discipline any unvaccinated members who have sought religious accommodation.

The Air Force appealed the ruling. Its emergency request was shot down, and its appeal has now been rejected.
Circuit Judge Eric Murphy, in the 56-page opinion released on Nov. 29, said that 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,” referring to how the military branch has granted thousands of medical exemptions but only 135 religious exemptions.

Further, as Air Force lawyers confirmed in a recent hearing, the branch has given zero exemptions to members who are planning to stay with the military.

Even the 135 exemptions “overstates things,” Murphy said. The Air Force “actually granted the ’religious’ exemptions only to those who qualified (or nearly qualified) for an ‘administrative’ exemption because they'd soon retire. At argument, the Air Force agreed that it has granted zero religious exemptions to anyone who does not plan to leave the service within a year.”

Murphy and two other judges on the U.S. Court of Appeals for the 6th Circuit heard the case. The panel consisted of Raymond Kethledge, a George W. Bush appointee; Murphy, a Trump appointee; and Judge John K. Bush, a Trump appointee. The ruling upholds the block on enforcing the mandate for an estimated 12,000 members.

“Big win today for religious liberty, and court finds systemic religious discrimination by Biden administration,” Chris Wiest, one of the lawyers for the plaintiffs, said in a statement.

Religious Freedom Restoration Act

The Religious Freedom Restoration Act (RFRA) states that the government may only “substantially burden a person’s exercise of religion” if it proves that the burden “is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”

The law requires weighing each case individually, as opposed to implementing a blanket policy, plaintiffs said. They presented evidence that the Air Force’s blanket policy was to deny religious exemption requests while granting many medical and administrative exemption requests.

U.S. District Court Judge Matthew McFarland, a Trump appointee, agreed and entered the injunction over the summer while certifying a class: servicemembers who had asked for religious accommodation and deemed by chaplains to have a sincerely held religious belief but either had their request rejected or were in limbo.

“The facts show Defendants have engaged in a pattern of denying religious accommodation requests,” McFarland said in one order, noting in another that he was acting “due to the systematic nature of what the Court views as violations of Airmen’s constitutional rights to practice their religions as they please.”

The Air Force appealed the matter to the appeals court, trying to get both the class certification and the injunction rescinded.

“The Air Force has a compelling interest in ensuring that these plaintiffs—who must be deployable on short notice—remain fit for duty and in protecting them against severe illness that could jeopardize missions and military readiness. And the Air Force has determined that vaccination of each of the plaintiffs is the least restrictive means of advancing that compelling interest. Those determinations are supported by sworn declarations from numerous high-ranking military officials, and plaintiffs have identified no valid basis to second-guess those expert judgments,” lawyers for the government said in one filing.

They also claimed that medical exemptions “serve the same purpose as the vaccination requirement: they ensure that service members are maximally fit to deploy” and that administrative exemptions “are generally limited to service members who are about to exit the military.”

The appeals court rejected the arguments.

“The Plaintiffs met their duty to prove that the vaccine mandate imposed a substantial burden on their sincerely held religious belief,” Murphy wrote.

That means the Air Force must make a showing that it isn’t violating the RFRA. But the Air Force didn’t prove it has a compelling interest in the vaccination of any one of the plaintiffs, the judge said.

“Most glaringly, the Air Force’s opening brief did not describe the duties of a single Plaintiff. From a review of that brief, we would have no idea that Lieutenant Doster was a student at the Air Force Institute of Technology at the start of this suit and later became a developmental engineer at the Air Force Research Lab,” Murphy said. “Nor would we know that Airman Colantonio serves as a fuel-systems technician, or that Airman Dills serves as a passenger representative helping passengers on and off flights. Even after the district court identified this legal error, the Air Force has doubled down on appeal by mistakenly relying on generalized interests.”

The Air Force’s assertion that vaccination relates to military readiness because it enables the quick deployment of members is suspect because some of the plaintiffs, including Doster, were designated as nondeployable, he noted.

“To accept the Air Force’s generalized ’readiness’ argument, we would have to find that it has a compelling interest in ensuring the immediate deployability of someone who is not immediately deployable,” Murphy said. “Only ‘unquestioning deference’ could uphold such a claim.”