IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BRYAN P. SPENCE, et al.,

Plaintiffs,

v.

LLOYD J. AUSTIN, III, et al.,

Defendants.

Case No: 4:22-cv-00453-O

PLAINTIFFS’ SUPPLEMENTAL BRIEF REGARDING DOSTER V. KENDALL

Case 4:22-cv-00453-O Document 41 Filed 08/01/22 Page 1 of 7 PageID 1805
Plaintiffs respectfully request that this Court issue their requested preliminary injunction 

rather than forcing them to rely upon a narrower injunction issued on July 27, 2022, by the 

Southern District of Ohio in Doster v. Kendall, No. 1:22-cv-84, 2022 WL 2974733 (S.D. Ohio 

July 27, 2022). 

The temporary restraining order issued in that case on July 14 enjoined the defendants there 

from taking various actions against Air Force and Space Force members who submitted Religious 

Accommodation Requests (“RARs”) to the Air Force’s COVID-19 vaccine mandate. Doster v. 

Kendall, No. 1:22-cv-84, 2022 WL 2760455 (S.D. Ohio On July 22, 2022, pursuant to this Court’s 

order (ECF No. 24) the parties in this case submitted cross-response briefs regarding whether this 

case should be held in abeyance. In that briefing, Defendants stated that “the temporary restraining 

order in Doster includes Plaintiffs’ requested relief” and that “the certified class in Doster includes

all of Plaintiffs’ putative class members.”1 Defs.’ Cross-Response, ECF No. 35, at 2. On July 27, 

2022, the Southern District of Ohio issued a preliminary injunction, with clarified language 

regarding the scope of relief. Doster, 2022 WL 2974733. If Defendants expressly agree that the 

preliminary injunction includes all the relief requested by Plaintiffs in this case, as they maintain 

the temporary restraining order did, this case may appropriately be held in abeyance, at least for 

now.

But Plaintiffs cannot rest on Defendants’ prior assurances. The Doster preliminary 

injunction states: “Nothing in this Order precludes the Department of the Air Force from 

considering vaccination status in making deployment, assignment, and other operational 

1 The certified class in Doster is limited to servicemembers who “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.” Doster, 2022 WL 2974733, at *1. Plaintiffs’ proposed class did not include this requirement, but the 

distinction makes little if any difference here because all nine Plaintiffs received such confirmation from Air Force 

chaplains. 

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decisions.” Id. at *2. That sentence was added to the injunction after the Doster plaintiffs requested 

the court there include it. Response to Government’s Brief Regarding Class-Wide Injunctive 

Relief, ECF No. 74, Doster v. Kendall, No. 1:22-cv-84, at 10. Presumably, the Doster plaintiffs 

sought to preempt the same arguments Defendants have made in this case regarding the Supreme 

Court’s partial stay in Navy SEALs 1–26 v. Biden. But, as Plaintiffs have already explained, the 

Supreme Court’s stay there necessarily rested on a holding that defendants in that case were using 

the least restrictive means available to them; had the Supreme Court not believed that to be the 

case, it could not have justified a stay. Here, the facts are different and clearly show that Defendants 

are not making decisions out of operational necessity with no less restrictive means available. They 

are discriminating against religiously based requests. Pls.’ Reply Br., ECF No. 27, at 28–29. 

Indeed, the limited factual and legal analysis of a “shadow docket” case is precisely why such 

decisions are not precedential. Plaintiffs are entitled to broader relief than that which has been 

afforded through the Doster class action.

Given Defendants’ actions thus far, Plaintiffs are concerned that Defendants will label any 

number of adverse actions that are not specifically prohibited by the Doster injunction as 

“operational” or “assignment” based, even though Defendants have no compelling interest in 

taking those adverse actions and those adverse actions are not the least restrictive means available 

to Defendants. For example, Plaintiff Wu had a promotion to be the Staff Judge 

Advocate at Patrick Space Force Base revoked due to his vaccination status. Pls. App. in Support 

of Br. Supporting Plaintiffs’ Mot. For Temporary Restraining Order and Preliminary Injunction,

ECF No. 6, at 133.2 Plaintiff Sosebee was fired from his position when his supervisor learned he 

was appealing his RAR denial, App.148, and Defendants have threatened to refuse to promote him 

2 References to this appendix are hereafter labeled as “App.X”.

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to the next rank, Suppl. App. In Support of Pls.’ Reply Br. In Support of Mot. For Temporary 

Restraining Order and Preliminary Injunction, ECF No. 28, at 8–9.3 Several Plaintiffs are still 

grounded from flight. See, e.g., App.56, App.85, App.95. Defendants have not established any 

compelling interest in taking these measures, and less restrictive means are available to them. See 

Pls.’ Br. ECF No. 5, at 9–16; Pls.’ Reply Br., ECF No. 27, at 18–24. Indeed, they employ less 

restrictive means in the case of medically exempt servicemembers. S.App.30 (affidavit from 

servicemember who is permitted to fly and perform his normal duties under a medical exemption).

In short, Plaintiffs are concerned that Defendants will argue that each of these adverse 

actions against religious requesters is a matter of Plaintiffs’ assignments, or of Defendants’ 

operations, and thus exempt from the Doster preliminary injunction. That is why Plaintiffs’

requested injunction here would prohibit Defendants from making non-receipt of COVID-19 

vaccination or submission of an RAR a basis for any adverse action, including “change in job titles 

or duties, removal from assignments, or non-issuance of assignments; negative performance 

reviews, promotion recommendations, or stratifications...loss or delay of promotion [or] training 

opportunities...or precluding servicemembers from traveling to and performing duty in person, 

unless Defendants can prove that failing to take a particular adverse action against the 

servicemember in question would likely have a real and concrete (not theoretical) adverse impact 

on a compelling government interest.” Proposed Order, ECF No. 4. Each of the foregoing actions 

is not specifically prohibited by the Doster injunction, and Plaintiffs fear that Defendants will label 

these decisions “operational” or “assignment-based” in order to continue discriminating against 

them. Plaintiffs therefore request that this Court enter their proposed preliminary injunction, at 

least as to the nine named Plaintiffs.

3 References to the supplementary appendix are hereafter labeled as “S.App.X”.

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This Court has the power to do so. As the Fifth Circuit has recognized, “[t]he matter of 

devising an appropriate remedy for deprivation of constitutional rights is addressed to the sound 

discretion of the trial judge.” Adams v. Miami Police Benev. Ass'n, Inc., 454 F.2d 1315, 1320 (5th 

Cir. 1972). In exercising that power, “[t]he District Court must be mindful not only of its authority,

but also of its duty to remedy fully those constitutional violations it finds. It should be flexible but 

unflinching in its use of its equitable powers.” Ciudadanos Unidos De San Juan v. Hidalgo Cnty. 

Grand Jury Comm'rs, 622 F.2d 807, 826 (5th Cir. 1980) (quoting Dayton Board of Education v. 

Brinkman, 433 U.S. 406, 424 (1977) (Brennan, J., concurring)) (cleaned up).

Under that broad discretion and duty to remedy constitutional violations “fully,” courts 

have allowed a class member to pursue equitable relief that was not afforded by a class action. See, 

e.g., McNeil v. Guthrie, 945 F.2d 1163, 1166 (10th Cir. 1991) (“class members may bring 

individual actions for equitable relief when their claims are not being litigated within the 

boundaries of the class action”); Spears v. Johnson, 859 F.2d 853, 855 (11th Cir. 1988), opinion 

vacated in part on reconsideration, 876 F.2d 1485 (11th Cir. 1989) (holding plaintiff could seek 

relief that was not sought by class representatives); Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 

1979) (holding that district court erred in dismissing allegations of plaintiff’s complaint which 

went beyond the relief prayed for in class action). To be sure, one court may defer to another where 

the requested relief would merely “duplicate” the prayer for relief in a class action. See Crawford, 

599 F.2d at 893. But where, as here, Plaintiffs “seek[] relief different from that requested by the 

class representatives” in the same or another case, a district court may appropriately grant that 

class member’s prayer for relief. Spears v. Johnson, 859 F.2d 853, 855 (11th Cir. 1988), opinion 

vacated in part on reconsideration, 876 F.2d 1485 (11th Cir. 1989) (emphasis added). 

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Plaintiffs therefore request that this Court issue Plaintiffs’ requested injunction, which is 

broader than the Doster injunction, to prevent Defendants from continuing to punish Plaintiffs’ 

religious exercise. Even if this Court does not wish to issue relief on behalf of Plaintiffs’ entire 

proposed class, it should issue an injunction as to the nine named Plaintiffs in this case.

August 1, 2022 Respectfully submitted,

/s/ Gene C. Schaerr

Gene C. Schaerr* 

 D.C. Bar No. 416368

Cristina M. Squiers

 Texas Bar No. 24093764

Counsel of Record

Annika M. Boone* **

 Utah Bar No. 17176)

SCHAERR | JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

Telephone: (202) 787-1060

Facsimile: (202) 776-0136

gschaerr@schaerr-jaffe.com

csquiers@schaerr-jaffe.com

aboone@schaerr-jaffe.com 

Kelly J. Shackelford

 Texas Bar No. 18070950

Jeffrey C. Mateer 

 Texas Bar No. 13185320

David J. Hacker

 Texas Bar No. 24103323

Michael D. Berry

 Texas Bar No. 24085835

Roger Byron

 Texas Bar No. 24062643

First Liberty Institute

2001 W. Plano Pkwy., Ste. 1600

Plano, Texas 75075

Tel: (972) 941-4444

jmateer@firstliberty.org

dhacker@firstliberty.org

mberry@firstliberty.org

rbyron@firstliberty.org

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Counsel for Plaintiffs and the 

Proposed Class

*Admitted pro hac vice.

** Not yet admitted in D.C. Practicing under 

the supervision of D.C. attorneys.

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