IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

BRYAN P. SPENCE, et al.,

Plaintiffs,

v. 

LLOYD J. AUSTIN III, et al.,

Defendants.

Case No. 4:22-cv-00453

DEFENDANTS’ SUPPLEMENTAL BRIEF

IN SUPPORT OF HOLDING CASE IN ABEYANCE

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TABLE OF CONTENTS

INTRODUCTION.................................................................................................................1

BACKGROUND.....................................................................................................................1

I. Air Force Officer v. Austin...................................................................................................................................1

II. The Instant Action............................................................................................................................................4

ARGUMENT......................................................................................................................... 5

I. The Class Relief Claims Are Substantially Similar..................................................................................5

II. This Court Should Hold This Case in Abeyance Pending Resolution of the Requests 

for Class-wide Relief in Air Force Officer. ...............................................................................................8

CONCLUSION....................................................................................................................11

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TABLE OF AUTHORITIES

CASES

Air Force Officer v. Austin, 

--- F. Supp. 3d ---, No. 5:22-cv-00009, 2022 WL 468799 (M.D. Ga. Feb. 15, 2022) .......................2, 11

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014).....................................................................................................................................................6

Cadle Co. v. Whataburger of Alice, Inc.,

174 F.3d 599 (5th Cir. 1999)................................................................................................................................8, 9

Chavez v. Plan Benefit Servs., Inc.,

957 F.3d 542 (5th Cir. 2020), 

remanded, 2022 WL 1493605 (W.D. Tex. Mar. 29, 2022) ................................................................................10

China Agritech, Inc. v. Resh,

138 S. Ct. 1800 (2018)................................................................................................................................................9

Cox v. Am. Cast Iron Pipe Co.,

784 F.2d 1546 (11th Cir. 1986)..............................................................................................................................10

Doster v. Kendall,

---F. Supp. 3d---, 2022 WL 982299 (S.D. Ohio Mar. 31, 2022)...................................................................10

Goff v. Menke,

672 F.2d 702 (8th Cir. 1982)...................................................................................................................................10

Groseclose v. Dutton,

829 F.2d 581 (6th Cir. 1987)...................................................................................................................................10

In re Ramu Corp.,

903 F.2d 312 (5th Cir. 1990),

subsequent determination, 2021 WL 3089386 (N.D. Tex. July 22, 2022) ..........................................................8

Jiaming Hu v. U.S. Dep’t of Homeland Sec.,

No. 4:17-cv-02363, 2018 WL 1251911 (E.D. Mo. Mar. 12, 2018)...............................................................9

McNeil v. Guthrie,

945 F.2d 1163 (10th Cir. 1991)..............................................................................................................................10

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu,

675 F.2d 1169 (11th Cir. 1982)..............................................................................................................................10

Mulvey v. Vertafore, Inc.,

No. 3:21-CV-00213-E, 2021 WL 4137522 (N.D. Tex. May 7, 2021)...........................................................8

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Sampson v. Murray,

415 U.S. 61 (1974) .....................................................................................................................................................11

W. Gulf Mar. Ass’n v. ILA Deep Sea Loc. 24, S. Atl. & Gulf Coast Dist. of the ILA; AFL-CIO,

751 F.2d 721 (5th Cir. 1985)................................................................................................................................8, 9

Wynn v. Vilsack,

No. 3:21-cv-514, 2021 WL 7501821 (M.D. Fla. Dec. 7, 2021)......................................................................9

RULES

Fed. R. Civ. P. 23.................................................................................................................................. 1, 3, 8, 10

OTHER AUTHORITIES

William B. Rubenstein, 3 Newberg on Class Actions (6th ed. 2022)...............................................................9

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INTRODUCTION

Defendants respectfully submit this supplemental brief, pursuant to the Court’s order, ECF 

No. 24, which directed the parties to file briefs addressing an appropriate course of action in this case 

in light of the pending motions for class certification and class-wide relief in Air Force Officer v. Austin, 

No. 5:22-cv-00009 (M.D. Ga.). Defendants set forth the information requested by the Court, 

including their position that the Court should hold this case in abeyance pending resolution of the 

motions for class certification and class-wide relief in Air Force Officer.

Plaintiffs filed the instant case almost five months after Air Force Officer was filed. Although 

the relevant defenses regarding individual named defendants differ—both across and within the two 

cases—the claims and defenses regarding the purported class are substantially similar. Should the 

court in Air Force Officer grant the pending motions for class certification and class-wide preliminary 

injunctive relief, the preliminary injunction would apply to Plaintiffs here. Holding this case in 

abeyance pending resolution of the motion for class relief would therefore conserve judicial resources

and allow the court with the first-filed lawsuit to be the first to consider whether to grant a mandatory 

class under Rule 23(b)(2). Accordingly, this Court should exercise its discretionary authority to hold 

this case in abeyance.

BACKGROUND

I. Air Force Officer v. Austin

On January 6, 2022, Air Force Officer filed an anonymous complaint in the Middle District 

of Georgia against the Secretary of Defense, the Secretary of the Air Force, and the Surgeon General 

of the Air Force (collectively, “AFO Defendants”), alleging violations of the Religious Freedom 

Restoration Act (“RFRA”), the First Amendment, and the Administrative Procedure Act (“APA”) 

related to the denial of her religious accommodation request to the COVID-19 vaccination mandate. 

See Air Force Officer, No. 5:22-cv-00009 (M.D. Ga. Jan 6, 2022), ECF No. 1. On the same day, Air Force 

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Officer also moved for a temporary restraining order and preliminary injunction to bar AFO

Defendants from (1) applying the COVID-19 vaccination requirement; (2) denying religious 

accommodation requests; and (3) denying Air Force Officer’s religious accommodation request or 

taking any related adverse action against Air Force Officer based on her unvaccinated status. See Air 

Force Officer, No. 5:22-cv-00009 (M.D. Ga. Jan 6, 2022), ECF No. 2 at 1.

On February 15, 2022, the court narrowly granted Air Force Officer’s motion by enjoining the

defendants from “enforcing [the COVID-19 vaccination mandate] against Plaintiff ” and “from taking 

any adverse action against Plaintiff on the basis of this lawsuit or her request for religious 

accommodation.” Air Force Officer v. Austin, --- F. Supp. 3d ---, No. 5:22-cv-00009, 2022 WL 468799, 

at *13 (M.D. Ga. Feb. 15, 2022). The court declined Air Force Officer’s request to enter broader belief 

enjoining the COVID-19 vaccination mandate as a whole. See id. The Court relied exclusively on Air 

Force Officer’s religious freedom claims under RFRA and the First Amendment, expressly declining 

to rule on Air Force Officer’s APA claim. See id. at *6 n.7.

On February 28, 2022, Air Force Officer filed a purported class-action First Amended 

Complaint. See Air Force Officer, No. 5:22-cv-00009 (M.D. Ga. Feb. 28, 2022), ECF No. 56. Air Force 

Officer concurrently filed a motion for class certification, see Air Force Officer, No. 5:22-cv-00009 (M.D. 

Ga. Feb. 28, 2022), ECF No. 57, and a motion for a class-wide preliminary injunction, see Air Force 

Officer, No. 5:22-cv-00009 (M.D. Ga. Feb. 28, 2022), ECF No. 58. On April 27, 2022, the plaintiffs 

filed a Second Amended Complaint adding three new anonymous plaintiffs, including Air Force NCO, 

Air Force Special Agent, and Air Force Engineer (collectively with Air Force Officer, “AFO 

Plaintiffs”). See Air Force Officer, No. 5:22-cv-00009 (M.D. Ga. Apr. 27, 2022), ECF No. 84. Shortly 

thereafter, on May 3, 2022, AFO Plaintiffs refiled a consolidated motion for class certification and for 

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a class-wide preliminary injunction on the basis of their RFRA and First Amendment claims.1

 See Air 

Force Officer, No. 5:22-cv-00009 (M.D. Ga. May 3, 2022), ECF No. 88. AFO Plaintiffs seek to certify 

the following class:

[A]ll members of the United States Air Force who (a) are subject to a mandate of the 

Department of Defense or Air Force to receive a COVID-19 vaccine, (b) submitted a 

request for religious accommodation regarding such mandate based on a sincerely held 

religious belief, and (c) have received or will receive a final denial of such request from 

the Department of Defense or Air Force[.]

Id. at 1. AFO Plaintiffs seek to enjoin AFO Defendants from “enforcing [the COVID-19 vaccination 

mandate] against [AFO Plaintiffs] or any member of the Class,” and “from taking any adverse action 

against [AFO Plaintiffs] or any member of the Class on the basis of this lawsuit or of any [AFO] 

Plaintiff ’s or Class member’s request for religious accommodation related to the Mandates.” Id. at 1–

2.

AFO Defendants filed their opposition to the consolidated motion for class relief on May 24, 

2022. See Air Force Officer, No. 5:22-cv-00009 (M.D. Ga. May 24, 2022), ECF No. 98. Regarding the 

motion for class certification, AFO Defendants argued that the proposed class is not ascertainable; 

the proposed class does not satisfy the Rule 23(a) requirements of commonality, typicality, or 

adequacy; and the proposed class cannot be maintained under Rule 23(b) because the requested relief 

is not indivisible. See id. at 3–21.

Regarding the motion for class-wide preliminary injunction, AFO Defendants argued that 

AFO Plaintiffs are unlikely to succeed on the merits of their claims because AFO Plaintiffs’ claims 

are not ripe; Air Force NCO’s claim, in particular, is unripe because he faces a pending Medical 

Evaluation Board process; Air Force Officer and Air Force NCO do not have justiciable claims 

because they voluntarily chose to retire from the Air Force; AFO Plaintiffs failed to exhaust 

1 AFO Plaintiffs do not seek class-wide relief on the basis of their APA claims. See ECF No. 

88 at 2 n.3.

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administrative remedies; and AFO Plaintiffs are unlikely to succeed on their RFRA or First 

Amendment claims because vaccination is the least restrictive means of furthering a compelling 

governmental interest. See id. at 21–36. AFO Defendants also argue that AFO Plaintiffs do not face 

irreparable harm and that the balance of equities and the public interest support denying the motion. 

See id. at 36–40.

Plaintiffs filed their reply on June 7, 2022. See Air Force Officer, No. 5:22-cv-00009 (M.D. Ga. 

June 7, 2022), ECF No. 104.

II. The Instant Action

On May 27, 2022, almost five months after Air Force Officer filed suit and four months after 

Air Force Officer first sought class certification and class-wide relief, the nine Plaintiffs in this case 

filed a purported class-action Complaint against the Secretary of Defense, the Department of 

Defense, and the Secretary of the Air Force, alleging a violation of RFRA and the First Amendment. 

Compl. ¶¶ 136–74, ECF No. 1. Plaintiffs’ Complaint purports to represent:

[A]ll members of the United States Air Force who are subject to the Air Force’s 

COVID-19 Vaccine Mandate and who have submitted a[] [religious accommodation 

request] concerning the Air Force’s COVID-19 Vaccine Mandate.

ECF No. 1 ¶ 131. Plaintiffs have not moved to certify a class.

Plaintiffs also simultaneously filed a motion for a temporary restraining order and preliminary 

injunction. ECF Nos. 4–5, 14-1. Plaintiffs seek to enjoin Defendants from: (1) applying the COVID19 vaccination requirement; (2) denying religious accommodation requests; and (3) taking “any adverse 

action against any servicemembers” on the basis of COVID-19 vaccination status or taking 

“retributive or negative action” for making a religious accommodation request. ECF No. 14-1 ¶¶ 1–

3.

Defendants filed their opposition to Plaintiffs’ motion on June 13, 2022. ECF No. 19. 

Defendants argue that Plaintiffs are unlikely to succeed on the merits of their claims because their 

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claims are not ripe; their claims are not justiciable because they failed to exhaust their administrative 

remedies; Plaintiffs’ assignment claims are not justiciable; at least seven Plaintiffs lack venue in the 

Northern District of Texas and all Plaintiffs are improperly joined; and Plaintiffs are unlikely to 

succeed on their RFRA or First Amendment claims because vaccination is the least restrictive means 

of furthering a compelling governmental interest. See id. at 11–39. Defendants also argued that 

Plaintiffs do not face irreparable harm and that the balance of equities and the public interest support 

denying the motion. See id. at 39–44.

Plaintiffs filed their reply on June 27, 2022. ECF No. 27. On July 1, 2022, this Court granted 

Defendants leave to file a response to Plaintiffs’ reply given Plaintiffs’ attachment of newly submitted 

evidence. ECF No. 30. That response is due no later than July 18. See id.

On June 17, 2022, this Court ordered the parties to file briefs addressing an appropriate course 

of action in light of the pending motions for class relief in Air Force Officer. ECF No. 24. The Court 

in particular requested information on “(1) the similarity of the facts, claims, relief, defenses, and 

arguments between the cases, (2) the extent to which the putative classes in the cases overlap, 

(3) whether the Court should hold this case in abeyance pending a decision from Judge Self on the 

pending motions, and (4) any other concerns the parties have regarding the Georgia action.” Id. at 2.

ARGUMENT 

I. The Class Relief Claims Are Substantially Similar.

The class relief claims are substantially similar, with only minor differences in the class 

definition and named defendants. Although the claims and defenses regarding individual defendants 

differ greatly—both across and within the two cases—those differences do not extend to the class

claims and defenses.

The class definitions in Air Force Officer and the instant case differ in only two minor ways. 

Both purported classes include all members of the Air Force who are subject to the Air Force’s 

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COVID-19 vaccination mandate and who have submitted a religious accommodation request. 

However, in Air Force Officer, the purported class includes only thosewho have “sincerely held religious 

belief[s]” and who “have received or will receive a final denial of such request.” Air Force Officer, No. 

5:22-cv-00009 (M.D. Ga. May 3, 2022), ECF No. 88 at 1. Notably, AFO Defendants have argued that 

AFO Plaintiffs’ purported class is unascertainable because of these two qualifiers. Specifically, AFO 

Defendants argued that “there is no way to determine who ‘will receive a final denial’ until that denial 

occurs.” Air Force Officer, No. 5:22-cv-00009 (M.D. Ga. May 24, 2022), ECF No. 98 at 4–5. AFO 

Defendants also argued that the inclusion of only those service members with “sincerely held religious 

belief[s]” is an improper fail-safe class because it incorporates an element of the RFRA claim itself. 

Id. at 4; see also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 717 n.28 (2014) (“To qualify 

for RFRA’s protection, an asserted belief must be ‘sincere[.]’”). Thus, even to the extent that these 

two differences between the class definitions are significant, the court in Air Force Officer may yet strike 

them from any future class definition.

The named defendants in Air Force Officer and the instant case overlap. Both suits name the 

Secretary of Defense and the Secretary of the Air Force. However, Air Force Officer also names the 

Surgeon General of the Air Force, and the instant litigation also names the Department of Defense. 

The difference in named defendants is immaterial here given that the requested injunctive relief would 

have substantially the same effect on the plaintiffs in both cases.

The lawsuits also request the same class-wide relief. Both seek to enjoin the Air Force 

COVID-19 vaccination mandate on a nationwide, class-wide basis, including enjoining the defendants 

from denying religious accommodation requests and from taking any adverse action related to class 

members’ unvaccinated status. Accordingly, both lawsuits presentthe same inherent flaws with regard 

to class-wide relief. Each individual plaintiff and purported class member has unique factual 

circumstances, and therefore requires unique defenses. For example, as explained in Defendants’ 

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opposition to Plaintiffs’ motion for a temporary restraining order and preliminary injunction, Plaintiffs 

include six pilots, an intelligence officer, and two Judge Advocates.

2

 ECF No. 19 at 21–23. The four 

plaintiffs in Air Force Officer have similarly varying roles.3

 Accordingly, lesser restrictive means of 

furthering the Air Force’s compelling interests in military readiness and the health of service members 

may differ for each individual plaintiff.

Moreover, the various plaintiffs across both cases have unique factual circumstances related 

to the ripeness and justiciability of their individual claims. For example, two Plaintiffs in the instant 

litigation—Runyan and Wu—have not yet received final decisions on their religious accommodation 

requests. A third Plaintiff—Corcoran—recently had his request for reconsideration of his religious 

accommodation request granted. See Ex. 1, Reconsideration Grant Letter, App.2. In Air Force Officer, 

Air Force NCO faces pending Medical Evaluation Board processing, which will determine whether 

he is entitled to medical retirement unrelated to his vaccination status. See Air Force Officer, No. 5:22-

cv-00009 (M.D. Ga. May 24, 2022), ECF No. 98 at 23. Air Force Officer and Air Force NCO also 

2 Defendants’ opposition to Plaintiffs’ motion for a temporary restraining order and 

preliminary injunction incorrectly identified Plaintiff Wu as the Deputy Chief of the 43d Air Mobility 

Operations Group. ECF No. 19 at 23. Wu was previously the Staff Judge Advocate for the 43d Air 

Mobility Ops Group and is now the Deputy Chief of the Commercial Litigation Field Support Center. 

See Decl. of Lt. Col. Christopher Wu, ECF No. 19-15 ¶ 3. 3 The four AFO Plaintiffs serve in four different roles across different states. Air Force Officer 

is a reservist, and her civilian job focuses on supporting Air Force Reservists who are deployed and 

their families, which requires frequent interaction with members of her team and supervision of large 

events. See Air Force Officer, No. 5:22-cv-00009 (M.D. Ga. Feb. 1, 2022), ECF No. 38.

Air Force Engineer is an active duty Major who works at Joint Base Langley-Eustis in Virginia. 

Air Force Officer, No. 5:22-cv-00009 (M.D. Ga. May 24, 2022), ECF No. 98-10 ¶¶ 1, 3. He serves as 

Chief of the Operations Support Branch, in which role he supervises and provides programming, 

budget, and execution support to engineers within Air Combat Command. See id. ¶¶ 4, 6.

Air Force Special Agent is a reservist who works at Peterson Space Force Base in Colorado. 

Air Force Officer, No. 5:22-cv-00009 (M.D. Ga. May 24, 2022), ECF No. 98-11 ¶ 4. He is an investigator 

with the Air Force Office of Special Investigations, where “he is responsible for felony-level criminal 

investigations and national security investigations.” Id.

Finally, Air Force NCO is a reservist who works at Robins Air Force Base in Georgia. Air 

Force Officer, No. 5:22-cv-00009 (M.D. Ga. May 24, 2022), ECF No. 98-12 ¶¶ 1, 3. Air Force NCO is 

the primary program manager of the Reserve Phoenix Raven Program, which “provides security to 

Air Force aircraft transiting in high terrorist and criminal threat areas.” Id. ¶ 4.

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both voluntarily chose to retire and thus do not have justiciable claims under binding Eleventh Circuit 

precedent. Id. at 23–24.

For these reasons, the defenses against class certification and class-wide relief in the instant 

litigation will be substantially similar to the defenses against class certification and class-wide relief in 

Air Force Officer. The class members are in different stages of the religious accommodation request 

process, have different bases for their requested religious accommodations, have different job 

positions and responsibilities, and there are different potentially less restrictive means of achieving the 

Air Force’s compelling governmental interest in maintaining a medically fit force ready for deployment 

at all times. Because each purported class members’ factual situations differ substantially, both 

lawsuits present the same failure to establish commonality, typicality, and adequacy under Rule 23(a); 

and indivisibility of relief under Rule 23(b)(2).

Accordingly, the class relief claims and defenses substantially overlap.

II. This Court Should Hold This Case in Abeyance Pending Resolution of the Requests 

for Class-wide Relief in Air Force Officer.

Holding this case in abeyance pending a decision on the substantially similar class relief 

motions in Air Force Officer would conserve judicial resources and comport with the first-to-file rule.

“A district court has inherent discretionary authority to stay a case.” Mulvey v. Vertafore, Inc., 

No. 3:21-CV-00213-E, 2021 WL 4137522, at *1 (N.D. Tex. May 7, 2021) (citing In re Ramu Corp., 903 

F.2d 312, 318 (5th Cir. 1990)), subsequent determination, 2021 WL 3089386 (N.D. Tex. July 22, 2022). 

Moreover, under the first-to-file rule, “when related cases are pending before two federal courts, the 

court in which the case was last filed may refuse to hear it if the issues raised by the cases substantially 

overlap.” The Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir. 1999). Alternatively, the 

court may stay the case. See W. Gulf Mar. Ass’n v. ILA Deep Sea Loc. 24, S. Atl. & Gulf Coast Dist. of 

the ILA; AFL-CIO, 751 F.2d 721, 729 n.1 (5th Cir. 1985) (“In addition to outright dismissal, it 

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sometimes may be appropriate to transfer the action or to stay it.”). “The concern manifestly is to 

avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, 

and to avoid piecemeal resolution of issues that call for a uniform result.” The Cadle Co., 174 F.3d at 

603 (quoting W. Gulf Mar. Ass’n, 751 F.2d at 729).

The first-to-file rule finds particular relevance in the context of competing class actions 

lawsuits. This is because “[t]he primary goals of class action lawsuits are to avoid a multiplicity of 

actions and the risk of inconsistent or conflicting adjudications.” William B. Rubenstein, 3 Newberg 

on Class Actions § 10:33 (6th ed. 2022). Indeed, “‘[m]ultiple courts of appeal[]’ have approved the 

practice of staying a case, or dismissing it without prejudice, ‘on the ground that the plaintiff is a 

member of a parallel class action.’” Wynn v. Vilsack, No. 3:21-cv-514, 2021 WL 7501821, at *3 (M.D. 

Fla. Dec. 7, 2021) (citation omitted) (collecting cases); see also Jiaming Hu v. U.S. Dep’t of Homeland Sec., 

No. 4:17-cv-02363, 2018 WL 1251911, at *4 (E.D. Mo. Mar. 12, 2018) (collecting cases); see also China

Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1811 (2018) (“[D]istrict courts have ample tools at their disposal 

to manage [competing class action] suits, including the ability to stay, consolidate, or transfer 

proceedings.”).

Here, plaintiffs in Air Force Officer were the first to file a substantially similar purported classaction lawsuit.4

 Allowing the court with the first-filed lawsuit to rule first is especially important here 

4 Doster v. Kendall, No. 1:22-cv-00084 (S.D. Ohio), is anothersubstantially similar lawsuit with a pending 

class certification motion that predates the instant litigation. In Doster, 18 members of the Air Force 

filed a purported class-action lawsuit on February 16, 2022, challenging the Air Force’s COVID-19 

vaccination mandate as violative of RFRA and the First Amendment. Doster, No. 1:22-cv-00084 (S.D. 

Ohio Feb. 16, 2022), ECF No. 1. They sought a nationwide injunction against the Secretary of the 

Air Force, the Surgeon General of the Air Force, the United States, and three Air Force commanders 

to enjoin the Air Force COVID-19 vaccination mandate. Doster, No. 1:22-cv-00084 (S.D. Ohio Feb. 

22, 2022), ECF No. 13. On March 2, 2022, 17 of the 18 plaintiffs moved to certify a class of:

All active-duty[] and active reserve members of the United States Air Force who: (i) 

submitted a religious accommodation request to the Air Force from the Air Force’s 

COVID-19 vaccination requirement, where the request was submitted orwas pending, 

from September 1, 2021 to the present; (ii) were confirmed as having had a sincerely 

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because plaintiffs in Air Force Officer seek to certify a mandatory class under Rule 23(b)(2). See Air Force 

Officer, No. 5:22-cv-00009 (M.D. Ga. May 3, 2022), ECF No. 88 at 1. In a mandatory Rule 23(b)(2) 

class, each and every class member is bound by the court’s judgment without the opportunity to opt 

out, either before or after judgment. See Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir. 

1986) (“The general rule in this Circuit is that absent members of (b)(2) classes have no automatic 

right to opt out of a lawsuit and to prosecute an entirely separate action.”); Chavez v. Plan Benefit Servs., 

Inc., 957 F.3d 542, 547 (5th Cir. 2020) (“[T]he existence of a class fundamentally alters the rights of 

present and absent members, particularly for mandatory classes such as the one here.”), remanded, 2022 

WL 1493605 (W.D. Tex. Mar. 29, 2022). Moreover, there is reason to believe that courts lack the 

authority to certify a duplicative Rule 23(b)(2) class. See, e.g., McNeil v. Guthrie, 945 F.2d 1163, 1166 

(10th Cir. 1991) (“Claims for equitable relief must be made through the class representative until the 

class action is over or the consent decree is modified.”); Groseclose v. Dutton, 829 F.2d 581, 584-85 (6th 

Cir. 1987); Goff v. Menke, 672 F.2d 702, 704 (8th Cir. 1982) (“[A] class member should not be able to 

prosecute a separate equitable action once his or her class has been certified.”); cf. Merrill Lynch, Pierce, 

Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1173 (11th Cir. 1982) (“[W]hen separate courts are 

presented with the same lawsuit[,] . . . one court must yield its jurisdiction to the other[.]”). 

Accordingly, holding this case in abeyance will allow the court with the first-filed lawsuit in Air Force 

Officer to be the first to consider the motions for class certification and class-wide relief.

Holding the case in abeyance will not prejudice Plaintiffs. For all the reasons explained in 

held religious belief by or through Air Force Chaplains; and (iii) either had their 

requested accommodation denied or have not had action on that request.

Doster, No. 1:22-cv-00084 (S.D. Ohio Mar. 2, 2022), ECF No. 21 at 4. The defendants filed their 

opposition to class certification on March 23, Doster, No. 1:22-cv-00084 (S.D. Ohio Mar. 23, 2022), 

ECF No. 34, and the plaintiffs filed their reply on March 30, Doster, No. 1:22-cv-00084 (S.D. Ohio 

Mar. 30, 2022), ECF No. 46. That motion remains pending. On March 31, 2022, the court narrowly 

granted the plaintiffs’ requested relief to apply only to the named plaintiffs. See Doster v. Kendall, ---F. 

Supp. 3d---, 2022 WL 982299, at *17 (S.D. Ohio Mar. 31, 2022). Plaintiffs have not moved for a classwide preliminary injunction.

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Defendants’ opposition to Plaintiffs’ motion for a temporary restraining order and preliminary 

injunction, Plaintiffs do not face irreparable harm. ECF No. 19 at 39–42. None of Plaintiffs’ alleged 

employment-related harms are irreparable. See Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974); see Air 

Force Officer, 2022 WL 468799, at *12 (“While it is true that Plaintiff has ‘gradually [been] stripped of 

her duties, benefits, and pay, and forced into early retirement’ . . . these harms are redressable as 

monetary damages and therefore insufficient to obtain injunctive relief.” (citation omitted)). To the 

extent that Plaintiffs’ alleged loss of First Amendment rights constitutes irreparable harm, the court 

in Air Force Officer is already considering whether to grant class-wide relief on that basis. Should the 

court in Air Force Officer ultimately decline to enter class-wide relief, Plaintiffs are not prejudiced in 

seeking both individualized and class-wide injunctive relief at that time in this case. 

CONCLUSION

For the foregoing reasons, the Court should hold this case in abeyance pending resolution of 

the substantially similar requests for class certification and class-wide relief in Air Force Officer. 

Dated: July 8, 2022 Respectfully submitted,

 BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General 

Civil Division

ALEXANDER K. HAAS

Director, Federal Programs Branch

 

 ANTHONY J. COPPOLINO

Deputy Branch Director

Federal Programs Branch 

/s/ Cassandra Snyder 

AMY POWELL

Senior Trial Counsel

CASSANDRA SNYDER

Trial Attorney

Department of Justice, Federal Programs Branch

1100 L Street, N.W., Washington, DC 20005

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Tel: (202) 451-7729

Email: cassandra.m.snyder@usdoj.gov

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on July 8, 2022, I electronically filed the foregoing paper with the Clerk 

of Court using this Court’s CM/ECF system, which will notify all counsel of record of such filing.

/s/ Cassandra Snyder 

CASSANDRA M. SNYDER

Trial Attorney

United States Department of Justice 

Civil Division, Federal Programs Branch

1100 L Street, N.W.

Washington, DC 20005

Tel: (202) 451-7729

Fax: (202) 616-8460

Email: cassandra.m.snyder@usdoj.gov

Case 4:22-cv-00453-O Document 31 Filed 07/08/22 Page 17 of 17 PageID 1736