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’ REPLY BRIEF IN SUPPORT OF MOTION FOR TEMPORARY 

RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.............................................................................................. ii

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

I. This Court Has Jurisdiction, and Venue is Proper. .............................................6

A. Plaintiffs’ Claims Are Ripe. .....................................................................6

B. Plaintiffs’ Claims Meet the Standard for Justiciability under Mindes....10

1. Plaintiffs Need Not Exhaust Intra-Miliary Remedies Before Obtaining 

Relief..................................................................................................... 10

2. The Mindes Factors Weigh in Favor of Justiciability. .......................... 12

C. Venue is Proper and All Plaintiffs Are Properly Joined.........................16

II. Plaintiffs Are Likely to Succeed on the Merits. ................................................17

A. Defendants’ Vaccine Mandate Fails Strict Scrutiny...............................18

1. Defendants Have No Compelling Interest in Coercing Airmen and 

Guardians To Be Vaccinated in Violation of Their Religious Beliefs.. 18

2. Compelled Vaccination of Plaintiffs and Prospective Class Members Is 

Not the Least Restrictive Means Available to Defendants. .................. 23

B. The Mandate Is Neither Neutral nor Generally Applicable....................24

III. The Remaining Factors for Injunctive Relief Are Satisfied..............................25

A. Plaintiffs Are Suffering Irreparable Injury. ............................................25

B. The Balance of Harms and the Public Interest in Protecting 

Constitutional and Statutory Rights Weigh in Favor of an 

Injunction. ..............................................................................................26

IV. The Requested Injunction Is Appropriate in Scope. .........................................27

CONCLUSION..................................................................................................................30

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TABLE OF AUTHORITIES

Cases

Austin v. U.S. Navy Seals 1-26, 

142 S. Ct. 1301 (2022) ...................................................................................2, 14, 15, 29

BST Holdings, L.L.C. v. Occupational Safety & Health Admin., Dep’t of Lab., 

17 F.4th 604 (5th Cir. 2021).....................................................................................25, 26

Burwell v. Hobby Lobby Stores, Inc., 

573 U.S. 682 (2014) .................................................................................................18, 26

Crosby v. Austin, 

No. 8:21-cv-2730, ECF No. 44 (M.D. Fla. Feb. 22, 2022)............................................17

Elrod v. Burns, 

427 U.S. 347 (1976) .......................................................................................................11

Fulton v. City of Philadelphia, 

141 S.Ct. 1868 (2021) ..............................................................................................17, 24

Gonzalez v. O Centro Espírita Beneficente Uniao do Vegetal, 5

46 U.S. 418 (2006) .........................................................................................................26

Gooch v. Life Investors Ins. Co. of Am., 

672 F.3d 402 (6th Cir. 2012)..........................................................................................28

Hodges v. Callaway, 

499 F.2d 417 (5th Cir. 1974)....................................................................................10, 11

Howe v. Varity Corp., 

896 F.2d 1107 (8th Cir. 1990)........................................................................................28

Jackson Women’s Health Organization v. Currier, 

760 F.3d 448 (5th Cir. 2014)....................................................................................25, 26

Kane v. De Blasio, 

19 F.4th 152 (2d Cir. 2021)............................................................................................25

Koss v. Norwood, 

305 F. Supp. 3d 897 (N.D. Ill. 2018)..............................................................................28

Lee v. Orr, 

No. 13-CV-8719, 2013 WL 6490577 (N.D. Ill. Dec. 10, 2013) ....................................28

Lopez v. City of Houston, 

617 F.3d 336 (5th Cir. 2010)............................................................................................6

Mindes v. Seaman, 

453 F.2d 197 (5th Cir. 1971)..........................................................................6, 10, 13, 14

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N.Y. State Nat. Org. For Women v. Terry, 

697 F. Supp. 1324 (S.D.N.Y. 1988)...............................................................................28

Navy SEALs 1-26 v. Biden,

No. 4:21-cv-01236-O, ECF No. 150 (N.D. Tex. May 7, 2022)...............................6, 7, 8

Navy SEALs 1-26 v. Biden, 

No. 4:21-cv-01236-O, 2022 WL 34443, at *1 (N.D. Tex. Jan. 3, 2022) ............... passim

O.B. v. Norwood, 

170 F. Supp. 3d 1186 (N.D. Ill. 2016)............................................................................28

Paragon Off. Servs., LLC v. UnitedHealthcare Ins. Co., 

No. 3:11-CV-2205-D, 2012 WL 4442368 (N.D. Tex. Sept. 26, 2012)..........................16

Sambrano v. United Airlines, Inc., 

No. 21-11159, 2022 WL 486610 (5th Cir. Feb. 17, 2022).......................................25, 26

Tandon v. Newsom, 

141 S. Ct. 1294 (2021) .............................................................................................13, 23

Toilet Goods Ass’n, Inc. v. Gardner, 

387 U.S. 158 (1967) .........................................................................................................9

Von Hoffburg v. Alexander, 

615 F.2d 633 (5th Cir. 1980)....................................................................................11, 12

Statutes

28 U.S.C. § 1391................................................................................................................16

Other Authorities

COVID-19 Statistics, Sec’y Air Force Pub. Affairs (June 7, 2022) ..................................10

Frank Kendall, Supplemental Coronavirus Disease 2019 Vaccination Policy, Air Force 

(Dec. 7, 2021)...................................................................................................................8

Kristina Wong, Exclusive: Air Force Admits All Granted Religious Accommodations for 

Vax Were for Airmen Already Leaving Service, Breitbart (May 10, 2022) ...................10

Rules

Fed. R. Civ. P. 20...............................................................................................................16

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INTRODUCTION

While Plaintiffs’ motion for a temporary restraining order and preliminary 

injunction has been pending, Defendants have continued to inflict irreparable injury. Only 

this Court can stop them. Since suit was filed, as established in the supplemental affidavits, 

five of nine named Plaintiffs have been subject to additional adverse action which threatens 

to end their careers in short order. Plaintiff Corcoran has been denied retirement and, absent 

action from this Court, he soon will be separated from the Air Force. Similarly, absent a 

temporary restraining order, a show-cause order that begins separation likely will be issued 

to Plaintiff Stef any day. Defendants threaten to delay Plaintiff Sosebee’s already-promised 

promotion in rank at any time. Plaintiff Haynes will be involuntarily transferred to the 

Individual Ready Reserves. Plaintiff Grieb will be denied future promotions. Other 

Plaintiffs expect to receive similar punishment at any time. Plaintiffs respectfully ask this 

Court to swiftly issue a temporary restraining order to prevent further irreparable injury 

until such time as this Court decides whether to issue a preliminary injunction.

Defendants have offered no sound reason why this Court should not do so. Their 

jurisdictional arguments are squarely foreclosed by this Court’s precedent. And Plaintiffs 

are likely to succeed on the merits: Defendants have proved no compelling interest in 

requiring Plaintiffs to be vaccinated in violation of their religious beliefs. And Defendants’ 

treatment of medically exempt servicemembers proves that less restrictive means than 

punitive action and eventual separation are available and already in use by Defendants.

Similarly, the fact that, until Defendants issued their mandate, all Plaintiffs were safely and 

effectively performing their duties shows that less restrictive means abound.

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Defendants also have not offered any sound reason that this Court cannot issue a 

classwide injunction. If this Court chooses not to issue a classwide preliminary injunction 

until the conclusion of its briefing schedule set out in its June 17, 2022, Order (ECF No.

24), it should still issue a classwide temporary restraining order to prevent further 

irreparable injury in the interim. If this Court chooses not to issue any classwide relief at 

this time, Plaintiffs respectfully request that it issue a temporary restraining order as to the 

named Plaintiffs, each of whom faces impending adverse action, to include separation.

Nor have Defendants provided a sound reason for this Court to limit the scope of its 

injunction to allow Defendants to continue discriminating against Plaintiffs if they can 

label their decisions as “operational,” “personnel,” or “assignment” decisions. Defendants’ 

reliance on the Supreme Court’s stay decision in Austin v. U. S. Navy Seals 1-26 is inapt. 

That case rested on a conclusion that no less restrictive means were available. See Austin 

v. U.S. Navy Seals 1-26, 142 S. Ct. 1301, 1302 (2022) (Kavanaugh, J., concurring).

Defendants’ actions here make clear that, in this case, less restrictive means are abundant

and already in use. This Court will not violate Supreme Court precedent by enjoining 

Defendants from making religiously motivated conduct the basis for adverse action.

Ultimately, Defendants’ arguments rest on their insistence that this Court must defer 

to the military’s expertise. But, as this Court has aptly stated, “[t]here is no military 

exclusion from our Constitution.” Navy SEALs 1-26 v. Biden, No. 4:21-cv-01236-O, 2022 

WL 34443, at *1 (N.D. Tex. Jan. 3, 2022). And discrimination deserves no deference.

Plaintiffs respectfully ask this Court to grant the motion for a temporary restraining order 

and preliminary injunction.

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FACTS

Plaintiffs will not reiterate the facts from their opening brief. However, Defendants 

have continued pursuing adverse action against them while their motion for a temporary 

restraining order and preliminary injunction is pending. Plaintiffs write briefly to inform 

the Court of these developments. An immediate temporary restraining order, at least as to 

the nine named Plaintiffs, is necessary to prevent Defendants from continuing to take 

unlawful adverse action against Plaintiffs based on their religious conduct.

On May 31, 2022, Plaintiff Stef’s Letter of Admonishment (“LOA”), discussed in 

his original declaration, was upheld. Ex. 4 ¶ 3, S.App.19. On June 15, 2022, Plaintiff Stef 

was notified that his Letter of Counseling (“LOC”) would also be upheld. Id. ¶ 6. Both the 

LOA and LOC cite to violations of Article 92 of the Uniform Code of Military Justice 

(“UCMJ”). Id. ¶¶ 3–4. Violations of the UCMJ can result in court martial and criminal 

convictions. Id. ¶ 8. The LOA and LOC are now part of Plaintiff Stef’s Officer Selection 

Record and will prevent his promotion to the next rank. Id. ¶ 7. The next step after issuance 

of an LOC at Sheppard Air Force Base, where Plaintiff Stef is stationed, is likely to be a 

“show cause” letter, which would begin separation proceedings. Id. ¶ 8. Absent timely 

intervention from this Court, Plaintiff Stef will be removed from the Air Force. Id.

On June 3, 2022, Plaintiff Grieb received an LOR for his refusal to receive the 

COVID-19 vaccine. Ex. 5 ¶ 4, S.App.24. Plaintiff Grieb has forty-five days from the date 

of issuance to respond to that LOR. Id. ¶ 5. Absent timely intervention from this Court,

the LOR will be sustained and placed in an Unfavorable Information File and in Plaintiff 

Grieb’s Officer Selection Record, which will preclude Plaintiff Grieb from future 

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promotion. Id. ¶ 4. The LOR also states that Plaintiff Grieb’s refusal to be vaccinated for 

religious reasons is a violation of Article 92 of the Uniform Code of Military Justice

(“UCMJ”). Id. As previously stated, violations of the UCMJ can result in court martial and 

criminal convictions. Id. ¶ 6.

On June 6, 2022, Plaintiff Corcoran received an LOR from Lieutenant Colonel 

Rimpa Patel for his refusal to receive the COVID-19 vaccine. Ex. 1 ¶ 3, S.App.3. Plaintiff 

Corcoran has forty-five days from the date of receipt to respond. Id. ¶ 5. The LOR also 

states that Plaintiff Corcoran’s refusal to be vaccinated for religious reasons is a violation 

of Article 92 of the UCMJ, which can result in court martial and criminal convictions. Id.

¶ 4. On June 23, 2022, Plaintiff Corcoran was informed that his retirement has been denied. 

Id. ¶ 8. Absent timely intervention from this Court, Plaintiff Corcoran’s career will end,

and he will be forced out of the Air Force without his retirement and benefits. Id. ¶ 10, 

S.App.4. Plaintiff Corcoran was issued the LOR and denied his retirement even though 

Lieutenant Colonel Patel stated to this Court that his request for reconsideration is pending.

Defendants’ Appendix at 00847 (hereinafter “Defts.’ App.”).

On June 13, 2022, mere hours before Defendants filed their opposition brief, 

Plaintiff Haynes was issued an LOR for failure to receive the COVID-19 vaccine. Ex. 3 

¶ 5, S.App.13. On June 23, 2022, Plaintiff Haynes was notified that his LOR was sustained

on June 16—the same day he submitted his response. Id. ¶ 6. On June 24, 2022, Plaintiff 

Haynes’s commander provided him with AF Form 1058, which establishes an Unfavorable 

Information File (“UIF”) containing the LOR. Id. ¶ 9, S.App.14. That UIF will preclude 

Plaintiff Haynes from future promotions. Id. ¶ 4, S.App.13. The LOR also states that 

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Plaintiff Haynes’s refusal to be vaccinated for religious reasons is a violation of Article 92 

of the Uniform Code of Military Justice, which can result in a court martial and criminal 

conviction. Id. ¶ 8, S.App.14. On June 24, 2022, Plaintiff Haynes’s commander also 

provided him with official notice of the involuntary curtailment of his four-year tour of 

duty and involuntary transfer to the Individual Ready Reserve. Id. ¶ 10. Plaintiff Haynes 

has fifteen days from date of receipt to respond to these matters. Id. Absent timely 

intervention from this Court, Plaintiff Haynes’s career will end, and he will lose pay, 

medical, and retirement benefits after sixteen years of honorable service. Id. ¶ 11.

On June 15, 2022, Plaintiff Sosebee was informed that his already-approved 

promotion to the rank of Major would be delayed by six months because his decision not 

to receive the COVID-19 vaccine due to his religious convictions gave cause to believe he 

had not met the requirement of “exemplary conduct,” and that such conduct suggests that 

Plaintiff Sosebee is “not professionally qualified to perform the duties of the next higher 

grade.” Ex. 2 ¶ 5, S.App.8. The record memorializing the decision to delay Plaintiff 

Sosebee’s promotion also stated that the promotion could be delayed longer than the sixmonth recommendation. Id. ¶ 6, S.App.8–9. Plaintiff Sosebee requested an extension of 

time to respond to the decision to delay his promotion so that he could bring this matter to 

the attention of this Court, and that extension was granted. Id. ¶ 7, S.App.9. Plaintiff 

Sosebee has until the date of this filing, Monday, June 27, 2022, to respond. Id. Absent

timely intervention from this Court, the approval authority could uphold the decision to 

delay his promotion at any time and may do so this same day or at some point this week. 

Id. ¶ 8. The delay in Plaintiff Sosebee’s promotion will likely prevent him from fulfilling 

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his in-residence schooling requirements, which are necessary for him to become eligible 

for a command position. Id. Any delay in the completion of that requirement drastically 

reduces his chances of being chosen to attend school in-residence in the future. Id.

ARGUMENT

I. This Court Has Jurisdiction, and Venue is Proper.

Defendants argue preliminarily (at 11–18) that this Court lacks jurisdiction because 

Plaintiffs’ claims are not ripe and are not justiciable under Mindes v. Seaman, 453 F.2d 197 

(5th Cir. 1971). Both arguments are squarely foreclosed by this Court’s prior holdings. See

Order on Mot. to Dismiss, Navy SEALs 1-26, No. 4:21-cv-01236-O, ECF No. 150, at 4–5 

(N.D. Tex. May 7, 2022); Navy SEALs 1-26 v. Biden, 2022 WL 34443, at *8. Defendants 

also argue (at 18) that several Plaintiffs lack venue and that their claims are improperly 

joined, but that argument fails because Plaintiffs assert claims arising out of the same series 

of occurrences and their claims are contingent on common questions of law and fact. See 

Fed. R. Civ. P. 20(a)(1). In short, all of Defendants’ challenges to this Court’s ability to 

hear this case fall flat.

A. Plaintiffs’ Claims Are Ripe.

Defendants’ contention that Plaintiffs’ claims are unripe is wrong. Plaintiffs have 

met both prongs of the ripeness inquiry: their First Amendment and RFRA claims are 

quintessential legal questions fit for judicial review, and they face hardship if this Court 

declines consideration. See Lopez v. City of Houston, 617 F.3d 336, 342 (5th Cir. 2010).

As this Court has already twice recognized, whether Defendant’s vaccine mandate 

“passes muster under the First Amendment and RFRA...is a purely legal question 

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appropriate for judicial review.” Order on Mot. to Dismiss, Navy SEALs 1-26, No. 4:21-

cv-01236-O, ECF No. 150, at 4–5 (N.D. Tex. May 7, 2022) (quoting SEALs, 2022 WL 

34443, at *8). This Court has also held that, where “[d]enials are apparently inevitable, and 

appeals are fruitless,” claims are ripe and “there is no need to wait for further factual 

development.” Id. Defendants’ argument (at 14) that the denial of Plaintiffs’ Religious 

Accommodation Requests (“RARs”) was not predetermined because they have granted 

less than one percent of RARs is specious. As stated in Plaintiffs’ Complaint, Defendants 

have already admitted in a preliminary injunction hearing before another court that, as of 

the date of that hearing, the handful of granted RARs were given only to Airmen already 

planning to leave the Air Force within six months. Compl. ¶ 144. Defendants are not as 

forthcoming with this Court as they were with the District of Nebraska; they fail to 

acknowledge this limitation on granted RARs in their brief. That omission does not inspire 

confidence that Defendants have changed course.

Based on Defendants’ policy of denying all RARs from Airmen who are not already 

leaving the service, it is evident that it is only a matter of time before Plaintiffs Wu and 

Runyan1(the only Plaintiffs whose appeals remain pending) receive their final denials. And 

Defendants’ assertion that Plaintiff Corcoran has any hope of recourse through his request 

for reconsideration is plainly contradicted by their actions. Plaintiff Corcoran was never 

told that his reconsideration request would be given further consideration. Furthermore, 

Plaintiff Corcoran has been issued an LOR and his retirement application has been denied 

1

In her affidavit, Plaintiff Runyan inadvertently stated that her appeal had been denied. 

She meant to say that she had received the initial denial of her RAR.

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since this case was filed. Defendants did not even wait to make a determination on his 

reconsideration request before they issued an adverse administrative action and denied him 

the opportunity to retire after twenty years of honorable service. Ex. 1 ¶¶ 4, 8, S.App.3.

Given that final denials are clearly inevitable for all Plaintiffs, it is evident that their claims 

are pure legal questions fit for judicial resolution. See Order on Mot. to Dismiss, Navy 

SEALs 1-26, No. 4:21-cv-01236-O, ECF No. 150, at 4–5 (N.D. Tex. May 7, 2022).

The second prong of the ripeness inquiry—the potential hardship Plaintiffs face if 

the Court declines consideration—is also met. Defendants erroneously conflate the 

hardship from delay necessary to establish ripeness with the irreparable injury prong of the 

preliminary injunction inquiry. In any case, Plaintiffs have met both burdens. See infra 

Section III.A. “Substantial hardship exists when a party must choose between (1) 

complying with the law and (2) facing significant sanctions.” See Order on Mot. to Dismiss, 

Navy SEALs 1-26, No. 4:21-cv-01236-O, ECF No. 150, at 5 (N.D. Tex. May 7, 2022)

(citation and internal quotation marks omitted). 

And Defendants’ claim (at 15) that Plaintiffs do not face hardship from delay is 

flatly contradicted by the record. Absent timely court intervention, Plaintiffs will face 

separation from the Air Force.

2

See, e.g., Ex. 1 ¶ S.App.4. Nor have Defendants waited for 

2 Such separation is hardly “hypothetical” where Defendants themselves have stated that 

“Regular service members who continue to refuse to obey a lawful order to receive the 

COVID-19 vaccine after their exemption request or final appeals has been denied...will be 

subject to initiation of administrative discharge.” Frank Kendall, Supplemental 

Coronavirus Disease 2019 Vaccination Policy, Air Force (Dec. 7, 2021), 

tinyurl.com/5n935d26.. And the fact that formal discipline and separations are not 

presently stayed cuts in favor of Plaintiffs’ showing of harm for the ripeness inquiry, not 

against it. See SEALs, 2022 WL 34443, at *5.

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separation to administer adverse action: Each Plaintiff had already been subject to adverse 

action before filing, and Defendants have continued to inflict additional injury while 

Plaintiffs’ motion for a temporary restraining order and preliminary injunction is pending.

See, e.g., id. ¶¶ 3, 8. Plaintiffs have been issued Letters of Admonition, Counseling, and 

Reprimand, which have become part of their permanent record and, absent judicial 

intervention, will prevent them from promoting. See, e.g., Ex. 5 ¶ 4, S.App.24. Those letters 

have stated that Plaintiffs violated the Uniform Code of Military Justice, which 

demonstrates a risk that Defendants will pursue charges and proceed to a court martial with 

accompanying criminal sanctions for failure to receive the vaccine.3Id. And Defendants 

have prevented Plaintiffs from flying, accepting assignments, deploying, promoting, 

receiving pay, and fulfilling their duties. See Pls. Br. 6–7. Defendants’ decision to inflict

ongoing harm not only makes evident that the case is ripe, but also conclusively shows 

Plaintiffs’ immediate need for a TRO to avoid further irreparable injury.

3 The potential for criminal sanctions and the serious career consequences Plaintiffs face

make the present case plainly distinguishable from Toilet Goods Ass’n, Inc. v. Gardner, 

which rested its holding on the “minimal, if any, adverse consequences” petitioners faced, 

and specifically noted there was not “possible criminal liability.” 387 U.S. 158, 165–66 

(1967).

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B. Plaintiffs’ Claims Meet the Standard for Justiciability under Mindes. 

For the same reasons that Plaintiffs’ claims are ripe, this Court should reject 

Defendants’ argument that their claims must be dismissed for failure to exhaust 

administrative remedies. This Court has already determined that, where the denial of an 

RAR to the DoD’s vaccine mandate is “predetermined,” a plaintiff need not wait for 

Defendants “to engage in an empty formality.” SEALs, 2022 WL 34443 at *4. As discussed 

above, the denial of all RARs from Airmen who are not already voluntarily leaving the 

service is predetermined.

1. Plaintiffs Need Not Exhaust Intra-Miliary Remedies Before 

Obtaining Relief.

As in SEALs, Plaintiffs’ claims meet at least four exceptions to the requirement for 

exhaustion of intra-military remedies. See SEALs, 2022 WL 34443, at *5–7; Mindes, 453 

F.2d at 201. First, exhaustion is excusable because “resort to the administrative reviewing 

body would be futile.” See Hodges v. Callaway, 499 F.2d 417, 420 (5th Cir. 1974). The 

Air Force has issued an initial denial of each and every Plaintiffs’ RAR. Outside of 

Plaintiffs’ requests, the Air Force has only granted RARs in 0.85% of cases,4and only to 

Airmen who are already voluntarily leaving the service within six months.

5 Even where 

Plaintiffs’ immediate commanders have been supportive of their RARs, their requests have 

4 COVID-19 Statistics, Sec’y Air Force Pub. Affairs (June 7, 2022), 

https://tinyurl.com/2p87965v. 

5 Compl. ¶ 144 (citing Kristina Wong, Exclusive: Air Force Admits All Granted Religious 

Accommodations for Vax Were for Airmen Already Leaving Service, Breitbart (May 10, 

2022), https://tinyurl.com/2p8aw7tm)

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been denied further up the chain of command. Spence Aff. Ex. 4 ¶ 22, App.436. The facts 

clearly show that Defendants have a top-down policy of denying all religious 

accommodation requests, such that the military’s administrative processes do not “provide 

a real opportunity for adequate relief.” Hodges, 499 F.2d at 420. 

Second, available administrative remedies are inadequate to grant Plaintiffs the

relief they seek. See Von Hoffburg v. Alexander, 615 F.2d 633, 640–41 (5th Cir. 1980).

Defendants do not contend that resort to the separation process or the Board of Correction 

for Military Records could restore Plaintiffs’ already-lost assignments and soon-to-be lost 

years-long Active Guard Reserve orders, necessary health benefits for Plaintiffs and their 

families, appointment to commands, and required schooling opportunities Defendants have 

taken away as a result of Plaintiffs’ RARs. Nor can they restore the lost years of experience 

to Plaintiffs’ careers.

Third, Plaintiffs will suffer irreparable injury if they are compelled to pursue their 

administrative remedies. See Von Hoffburg, 615 F.2d at 638. Irreparable injury is discussed 

further at Section III.A, but a few points are particularly salient here. Plaintiffs are currently 

being forced to choose between their religious beliefs and their service to this country. 

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably 

constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Resort to 

administrative review, which could take months or years, cannot undo that harm. Nor can 

6 References to “App.” Refer to Plaintiffs’ May 27, 2022, Appendix filed in support of 

Brief in Support of Motion for Temporary Restraining Order and Preliminary Injunction, 

ECF No. 5.

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any administrative process restore the lost years of career experience Plaintiffs are being 

denied. Furthermore, as in SEALs, “Plaintiffs have suffered injury because they submitted 

religious accommodation requests.” SEALs, 2022 WL 34443, at *8 (emphasis in original).

For example, Plaintiff Wu lost an already-publicized career-advancing assignment to lead 

the legal office at Patrick Space Force Base, merely because he submitted an RAR, while 

that RAR was still pending. Wu Aff. Ex. 11 ¶ 24, App.133. As this Court has already held, 

“[w]ithholding judicial review is particularly illogical when participation in the 

administrative process invites the very harm Plaintiffs seek to avoid.” SEALs, 2022 WL 

34443 at *8.

Finally, Plaintiffs have raised, at a minimum, a substantial constitutional question. 

Von Hoffburg, 615 F.2d at 638. Whether Defendants have violated the First Amendment 

by forcing Plaintiffs to choose between their religious beliefs and their military careers, 

particularly where they discriminate between secular and religious accommodation 

requests, raises significant constitutional issues that are appropriate for judicial, not 

administrative, review.

In sum, as in SEALs, “[a]t least four recognized exceptions to the exhaustion 

requirement apply. If one is insufficient, the combination of the four readily supports [a]

finding that the traditional justifications for military exhaustion are not served by 

[Defendants’] religious accommodation process.” SEALs, 2022 WL 34443, at *7.

2. The Mindes Factors Weigh in Favor of Justiciability.

Plaintiffs’ claims also satisfy the four factors for determining whether a military 

issue is justiciable under Mindes: “(1) the nature and strength of the plaintiff's challenge; 

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(2) the potential injury to the plaintiff if review is refused; (3) the type and degree of 

anticipated interference with the military function; and (4) the extent to which the exercise 

of military expertise or discretion is involved.” SEALs, 2022 WL 34443, at *7 (citing 

Mindes, 453 F.2d at 201–02). Here, each factor shows that Plaintiffs’ claims are justiciable

and that, contrary to Defendants’ arguments, this Court may consider whether Defendants 

have violated the First Amendment and RFRA by taking adverse action against Plaintiffs, 

including by removing them from assignments due to their RARs and unvaccinated status. 

First, the nature and strength of Plaintiffs’ claims weigh in favor of judicial review. 

See Mindes, 453 F.2d at 201–02. As in SEALs, Plaintiffs claims are based on violations of 

their First Amendment and RFRA rights and are thus “squarely in the category of claims 

most favorable to judicial review.” SEALs, 2022 WL 34443, at *7. As discussed in Section 

II below, Plaintiffs’ claims are strong. Again, as in SEALs, Defendants’ mandate fails strict 

scrutiny because it “treats comparable secular activity (e.g., medical exemptions) more 

favorably than religious activity” by routinely granting medical and administrative 

exemptions while denying all RARs from servicemembers who are not already leaving the 

Air Force. Id. As this Court reasoned in SEALs, “the activity itself—forgoing the vaccine—

is identical.” Id. And the risks posed by that activity are identical regardless of whether a 

servicemember’s reasons are religious or secular. It is only Defendants’ treatment of 

secular and religious abstainers that varies. Given the “irrationality of the mandate,” 

Plaintiffs are entitled to relief. See id. (quoting Tandon v. Newsom, 141 S. Ct. 1294, 1298 

(2021) (per curiam)).

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Second, as discussed above, review is necessary to avoid potential injury. Plaintiffs 

face continued loss of their First Amendment freedoms and serious harm to their careers if 

review is denied. This factor is discussed further in Section III.A.

Third, the requested injunction would not substantially interfere with military 

function. Defendants’ contention that relief would require this Court to oversee day-to-day 

military operations ignores a key portion of the proposed injunction: It would bar 

Defendants from taking adverse action only where Defendants “can[not] 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.” 

Mot. for TRO and Prelim. Inj., ECF No. 4. Such an injunction would not intrude into

military affairs, except to the extent the military imposes a burden on religious belief 

without the compelling interest that is already required under the First Amendment and 

RFRA. And again, as in SEALs, “[w]hether denying religious accommodations violates the 

First Amendment is a distinct legal question that would not ‘seriously impede the military 

in the performance of vital duties.’” SEALs, 2022 WL 34443, at *8. Any minimal 

interference necessary to ensure Defendants comply with the law does not weigh against 

judicial review. As both this Court and the Fifth Circuit have recognized, “[i]nterference 

per se is insufficient since there will always be some interference when review is granted.” 

Id. (quoting Mindes, 453 F.2d at 201). 

Defendants read much into a single-paragraph decision in Austin v. U. S. Navy Seals 

1-26, but neither the Supreme Court’s partial stay in that case nor Justice Kavanaugh’s 

concurrence counsels against an injunction here. Justice Kavanaugh’s concurrence was 

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15

predicated on the rationale that no less restrictive means were available to the Navy.7 Austin 

v. U.S. Navy Seals 1-26, 142 S. Ct. 1301, 1302 (2022) (Kavanaugh, J., concurring). Here, 

there are less restrictive means than disciplining, withholding promotions and assignments 

from, and ultimately separating Plaintiffs. The Air Force already has employed such less 

restrictive means for unvaccinated Airmen with medical and administrative exemptions. 

See, e.g., McCoy Aff. Ex. 6 ¶ 10, S.App.30. Defendants cannot simply incant the word 

“operational” to shield their actions from judicial review. Where similarly situated 

servicemembers are given dissimilar treatment based upon whether their motivations are 

religious or secular, the issue is not about military operations, but employment 

discrimination. And discrimination deserves no deference.

Fourth, as this Court has previously recognized, “[w]hether the vaccine mandate 

passes muster under the First Amendment and RFRA requires neither ‘military expertise 

or discretion.’” SEALs, 2022 WL 34443, at *8. Again, this is a constitutional issue, not an 

operational issue. 

In sum, all four Mindes factors favor justiciability, and “this is precisely the type of 

legal challenge that Mindes contemplates is appropriate for the courts to decide.” Id.

7

Justice Kavanaugh’s concurrence was also based on the Navy’s interest in its “Special 

Warfare personnel.” Austin v. U.S. Navy Seals 1-26, 142 S. Ct. 1301, 1302 (2022)

(Kavanaugh, J., concurring) (emphasis added). The interest the Navy has in such elite 

assignments is certainly more compelling than the interest the Air Force has in day-to-day 

assignments of the entire force.

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C. Venue is Proper, and All Plaintiffs Are Properly Joined.

Venue is also proper, and severance of Plaintiffs’ claims is unwarranted. Where, as 

here, Defendants are officers of the United States acting in their official capacities, and an 

agency of the United States, a claim may be brought in “any judicial district in which...a 

substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. 

§ 1391(e)(1). Additional persons may be joined as parties in accordance with the Federal 

Rules of Civil Procedure. Id. Those rules provide that individuals may join in a single 

action if “(A) they assert any right to relief jointly, severally, or in the alternative with 

respect to or arising out of the same transaction, occurrence, or series of transactions or 

occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the 

action.” Fed. R. Civ. P. 20(a)(1). Both prongs are met here: Plaintiffs assert claims arising 

out of the same series of occurrences all related to Defendants’ vaccine mandate and 

subsequent across-the-board denial of all RARs submitted by Airmen who were not already 

leaving the service. And, as stated in the Complaint, there are numerous common questions 

of fact and law. Compl. ¶¶ 129–131. 

Interests of judicial efficiency also counsel against severance. See Paragon Off.

Servs., LLC v. UnitedHealthcare Ins. Co., No. 3:11-CV-2205-D, 2012 WL 4442368, at 

*1–2 (N.D. Tex. Sept. 26, 2012). Severing some Plaintiffs from this suit would lead to 

unnecessary multiplicitous litigation and increase the risk of conflicting holdings on claims 

premised on the same legal and factual issues. This Court is an appropriate venue in which 

to adjudicate all Plaintiffs’ claims.

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Defendants’ sole source of authority—an out-of-circuit district court opinion—does 

not suggest otherwise. Indeed, the Crosby court premised its decision to sever largely on 

the fact that Crosby, unlike this case, was not a class action. Crosby v. Austin, No. 8:21-

cv-2730, ECF No. 44, at 2 (M.D. Fla. Feb. 22, 2022). And the kinds of factual differences 

present in Crosby are not present here: That case presented objections to the Department 

of Defense’s COVID-19 vaccine mandate based, not only on religious liberty, but also on 

pre-existing health concerns, prior COVID-19 infections, and the alleged unavailability of 

FDA-licensed vaccines. The Crosby plaintiffs did not all share the same objections, and 

the court thus reasoned that the differences between their claims were “too numerous to 

promote judicial economy.” Id. at 3. Not so here. All Plaintiffs in this case brought the 

same two claims under RFRA and the First Amendment. Those two claims, based on 

Defendants’ decision to uniformly deny RARs (unless an Airman is already leaving the 

service) and to punish those who seek them, can be efficiently adjudicated in a single action 

in this district.

II. Plaintiffs Are Likely to Succeed on the Merits.

Plaintiffs have established that they are likely to succeed on the merits. Defendants 

mandate fails strict scrutiny because they lack a compelling interest in vaccinating these 

Plaintiffs, and because Defendants’ adverse action is not the least restrictive means of 

achieving any interest they have. Strict scrutiny applies not only to Plaintiffs’ RFRA claim, 

but also to their First Amendment claim because Defendants’ mandate, which provides 

exceptions for secular but not religious conduct, is not generally applicable. See Fulton v. 

City of Philadelphia, 141 S.Ct. 1868, 1879 (2021).

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A. Defendants’ Vaccine Mandate Fails Strict Scrutiny.

Defendants lack a compelling interest in vaccinating Plaintiffs, and their course of 

adverse action is not the least restrictive means available to them. The mandate thus fails 

strict scrutiny, and an injunction is warranted. 

1. Defendants Have No Compelling Interest in Coercing Airmen and 

Guardians To Be Vaccinated in Violation of Their Religious Beliefs.

For three reasons, Defendants fail to establish a compelling interest in vaccinating 

Plaintiffs despite their religious convictions. First, the underinclusivity of Defendants’ 

mandate shows that they have no compelling interest in vaccinating each servicemember.

Second, the record shows that Defendants did not give Plaintiffs’ requests any meaningful 

individual consideration. Finally, Defendants offer no meaningful rebuttal to the fact that 

here, as in SEALs, Defendants have achieved widespread vaccination of the force without 

the participation of named Plaintiffs. See SEALs, 2022 WL 34443, at *10.

As this Court has already explained, “a broadly formulated interest” in military 

readiness and health of the overall force is insufficient. Id.; see also Pls. Br. 9–10. 

Defendants must show a compelling interest in vaccinating these particular Plaintiffs. See 

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726 (2014). Instead, Defendants 

broadly assert that this Court should defer to their claimed interest in “vaccination of each 

service member.” Defs.’ Br. 20 (emphasis added). Yet Defendants have displayed little 

concern for such an individualized interest when secular conduct is at issue. The hundreds 

of granted medical exemptions show that the Air Force believes it can achieve its 

compelling interest without requiring each servicemember to be vaccinated. Defendants 

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assert (at 26) that vaccinating Airmen with medical contraindications to the vaccine would 

harm their health, and thus not serve an interest in readiness and the health and safety of 

the force. But if Defendants truly had a compelling interest in vaccinating each 

servicemember, including Plaintiffs, they would need to treat servicemembers with 

contraindications the same way they treat servicemembers with religious objections: they 

would remove them from their duties and ultimately separate them from the Air Force. 

Defendants’ decision not to do so shows that their asserted compelling interest in 

vaccinating Plaintiffs is a farce. 

Defendants’ claim (at 26) that medical and religious exemptions are not comparable 

because they grant only temporary medical exemptions is equally misplaced. Defendants 

have offered no evidence that an allergy to a vaccine is likely to be more temporary than a 

religious belief. Presumably that is why Airmen can receive subsequent temporary medical 

exemptions. Ex. 3 ¶ 8, Defs.’ App.00063. And in any event, Defendants must at offer 

Plaintiffs at least the same treatment as secular requesters by providing them with 

temporary exemptions.8 As additional vaccines develop, one could be created that does not 

8 Defendants assert (at 27) that medical exemptions render servicemembers non-deployable 

and subject to other restrictions. However, in their Appendix, Defendants state that a 

medically exempt Airman will “likely” be categorized as non-deployable and that it is 

possible for a medically exempt Airman to receive separate medical clearance to deploy. 

Ex. 3, Defs.’ App.00066–67. In any event, if restrictions are uniformly imposed on 

medically exempt servicemembers, Defendants can offer that as evidence that deploying 

religiously accommodated Airmen would pose a “real and concrete (not theoretical) 

adverse impact on a compelling government interest,” and therefore failing to deploy them 

would not be in violation of the proposed injunction. See Mot. for TRO and PI, ECF No.

4. At most, this is an argument for narrowing an injunction to prohibit Defendants from 

making non-receipt of COVID-19 vaccination or submission of a request for a religious 

accommodation from COVID-19 vaccination a basis for any adverse action against 

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burden Plaintiffs’ religious beliefs, just as a medically accommodated Airman might not 

have an allergic reaction to a new vaccine with a different formulation. Ex. 3, Defs.’

App.00065. And, as COVID-19 treatments continue to advance, COVID’s damaging 

effects will likely become even less significant than they are now. See SEALs, 2022 WL 

34443, at *10 (describing the lower risks present now than in earlier days of the pandemic);

Pls. Br. 13–14 (same). Additionally, while Plaintiffs do not agree with Defendants that an 

interest in deployability militates in favor of compelling vaccination of Plaintiffs now 

(particularly where Defendants allow medically exempt Plaintiffs to continue to serve 

while they are non-deployable, Defs.’ Br. 27), a temporary accommodation would allow 

Plaintiffs to continue to serve while they are also non-deployable under Defendants’ rules.

The fact that medical accommodations are routinely granted, while RARs are 

routinely denied, is by itself evidence that Defendants have no compelling interest in 

vaccinating Plaintiffs. But beyond that, Plaintiffs have proffered evidence that individuals 

with similar job duties have been allowed to continue service despite their unvaccinated 

status.9 Defendants assert (at 28) that these examples “comport with Air Force policy that 

servicemembers if such adverse action is not also taken against medically and 

administratively exempt servicemembers.

9 On page 11 of Plaintiffs’ opening brief, Plaintiffs discussed an individual who traveled 

with the Presidential Advance Team and who told Plaintiff Grieb that that “he has passed 

the expiration date of his exemption and he has not been pursued by our Squadron or the 

Vance AFB Medical Group to receive his shot at this time. He believes he has fallen 

through the cracks and he does not want to be highlighted and be forced to get the shot.” 

Grieb Aff. ¶ 32, App.111. While the statements in Plaintiffs’ declarations remain true, the 

individual in question has subsequently stated that he received a COVID-19 vaccine in 

December 2021. 

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unvaccinated service members are treated the same, regardless of the reason for their 

vaccination status.” But unvaccinated servicemembers with medical exemptions are not 

treated the same as unvaccinated servicemembers with religious objections, even if some 

limitations are placed on those with medical exemptions. Medically exempt Airmen are 

permitted to perform their duties, get promoted, receive pay, earn points toward retirement, 

and remain in the Air Force, while Plaintiffs are denied those opportunities and receive 

disciplinary action. 

This point is highlighted in the attached declaration from Lieutenant Colonel 

Michael McCoy, whose RAR was denied and who later received a medical accommodation

until at least June of 2023. Ex. 6 ¶ 9, S.App.30. Lieutenant Colonel McCoy is permitted to 

instruct students in a T-38 fighter-type aircraft, with students in the front cockpit and Lt 

Col McCoy in the rear cockpit, and to hold pre-flight briefing and post-flight debriefing 

with students in person. Id. ¶ 10. That individuals with medical exemptions are permitted 

to perform such duties undermines Defendants’ assertion that Plaintiffs cannot safely 

perform their duties in person,10 and particularly undermines their argument (at 21–22) that

Plaintiffs Grieb, Haynes, Pike, Sosebee, and Stef cannot safely conduct or complete 

training or fly.

Defendants try (at 27–28) to explain away their disparate treatment of medical and 

religious exemptions by stating that Plaintiffs Pike and Stef were able to train under 

10 Defendants also do not apply restrictions consistently. For example, they offer no 

explanation for why it has been deemed safe for Plaintiff Wu to work in an office

throughout the pandemic, while others like Plaintiff Runyan have been required to 

telework. Compare Wu Aff. Ex. 11 ¶ 21, App.132 with Runyan Aff. Ex. 10 ¶ 29, App.124.

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medical exemptions because those exemptions were granted, but denied the opportunity to 

train under religious exemptions because those requests were pending. But that ignores the 

fact that all RARs from Airmen who are not already leaving the service are pending or 

denied, not granted. And the only reason for that disparity is the basis of the request; 

clearly, the threat Pike and Stef posed to the health and readiness of themselves and the 

force did not change upon the denial of their RAR appeal.

Next, Defendants’ assertion (at_20) that they have conducted a “to the person” 

analysis of each RAR is belied by the facts. An accommodation process that results in 

denials of all RARs for those not already leaving the service, while granting hundreds of 

medical accommodations, compels the conclusion that Defendants created a top-down 

policy of denying all RARs, regardless of an Airman’s individual job duties or 

circumstances. Indeed, even when local commanders (who are most familiar with 

Plaintiffs’ individual circumstances) supported Plaintiffs’ RARs, Defendants denied their 

requests. See, e.g., Spence Aff. Ex. 4 ¶ 22, App.43–44. And tellingly, the rationales 

Defendants provide (at 21–22) for denying Plaintiffs’ RARs are drawn entirely from 

Plaintiffs’ appeals, not their initial denials. Such post hoc rationalization is not the 

individual assessment RFRA and the First Amendment require. 

Finally, Defendants fail to distinguish this case from SEALs, where this Court held 

the Navy lacked a compelling interest where it achieved its goal of widespread vaccination 

of the force without the participation of the small number of servicemembers who remained 

unvaccinated for religious reasons, where several Plaintiffs had natural immunity, and 

where COVID-19 treatments were becoming increasingly effective at reducing 

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hospitalization and death. SEALs, 2022 WL 34443, at *10. Each factor is also present here, 

and each reduces the risk presented by unvaccinated servicemembers. And, once again, if

“[e]ven the risk of a single individual going unvaccinated is serious,” Def. Br. 29, 

Defendants would need to disqualify medically exempt individuals from service. Because 

they grant exemptions to those individuals and allow them to perform their duties, it is 

particularly appropriate for the Court to look at the Air Force’s high percentage of 

vaccinated Airmen and conclude that accommodating Plaintiffs would not pose significant 

additional risk. 

2. Compelled Vaccination of Plaintiffs and Prospective Class Members 

Is Not the Least Restrictive Means Available to Defendants.

Defendants likewise offer no meaningful rebuttal to the requirement, articulated by 

the Supreme Court in Tandon, that courts presume “precautions that suffice for other 

activities suffice for religious exercise too.” Tandon 141 S. Ct. at 1297. Defendants reject 

(at 33–35) Plaintiffs’ proffered less restrictive means, such as telework, wearing masks, 

social distancing, and periodic testing, as insufficient. But medically exempt 

servicemembers are in many instances reportedly not required to accept even such basic 

restrictions as these. See McCoy Aff. ¶ 10, S.App.30. Defendants assert only that Airmen 

with medical exemptions are limited in their ability to travel; they do not contest that those 

servicemembers perform their duties without even the precautions Plaintiffs have offered 

to abide by, and that those servicemembers do not face the extremely restrictive means 

Defendants impose on Plaintiffs, including disciplinary action, lost promotions, 

involuntary separation from the military, and other adverse actions, including the 

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possibility of court martial. The punitive course Defendants have taken is clearly not the 

least restrictive means available to accomplish their interests in health and readiness.

B. The Mandate Is Not Generally Applicable.

Defendants further attempt (at 36) to evade First Amendment scrutiny by asserting 

an empty argument for military deference. But Defendants’ cited authorities state only that 

military regulations receive greater deference than do civilian regulations, not that the 

military context changes whether the law itself is neutral and generally applicable. And 

Defendants offer no reason that this Court should defer to out-and-out discrimination. 

Defendants suggest (at 36–37) that the evidence of animus that is sufficient to 

trigger strict scrutiny is a necessary condition for the higher standard of review. Not so. 

Fulton makes clear that to avoid strict scrutiny a law must be generally applicable in 

substance, not just in word, and on that basis held that “[t]he creation of a formal 

mechanism for granting exceptions renders a policy not generally applicable...because it 

invites the government to decide which reasons for not complying with the policy are 

worthy of solicitude.” Fulton, 141 S.Ct. at 1879 (citation omitted). 

Defendants nevertheless rely (at 37–38) on out-of-circuit precedent for the 

proposition that their mandate is neutral and generally applicable, notwithstanding its 

exemptions, because those exemptions are “objectively defined.” But those “objective” 

criteria just so happen to allow only those who abstain from the vaccine for secular reasons 

to be accommodated. Plaintiffs have thus clearly shown “that the exemption procedures 

allow secularly motivated conduct to be favored over religiously motivated conduct.” Kane

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v. De Blasio, 19 F.4th 152, 165 (2d Cir. 2021) (per curiam) (citation omitted). The vaccine 

mandate thus lacks general applicability, and strict scrutiny applies. 

III. The Remaining Factors for Injunctive Relief Are Satisfied.

Plaintiffs have satisfied the remaining factors necessary to qualify for injunctive 

relief. First, they face ongoing irreparable injury due to the loss of First Amendment rights 

in connection with adverse consequences to their careers. Defendants offer no rebuttal to 

the holdings of this Court and the Fifth Circuit that such harms are irreparable. See 

Sambrano v. United Airlines, Inc., No. 21-11159, 2022 WL 486610 (5th Cir. Feb. 17, 

2022); BST Holdings, L.L.C. v. Occupational Safety & Health Admin., Dep’t of Lab., 17 

F.4th 604 (5th Cir. 2021); SEALs, 2022 WL 34443, at *13. Second, the balance of the 

harms and public interest tilt in favor of Plaintiffs given the significant constitutional rights 

at stake. See, e.g., Jackson Women’s Health Organization v. Currier, 760 F.3d 448, 458 

n.9 (5th Cir. 2014); SEALs, 2022 WL 34443 at *13.

A. Plaintiffs Are Suffering Irreparable Injury.

Defendants try (at 41–42) to minimize the extent of the harm they are imposing 

through their restriction on Plaintiffs’ religious freedom by arguing that Plaintiffs may 

decline to receive the vaccination, so long as they accept the accompanying loss of their 

careers. But, as this Court held in SEALs, “[t]he crisis of conscience imposed by the 

mandate is itself an irreparable harm,” and “any losses the Plaintiffs have suffered in

connection with their religious accommodation requests sufficiently demonstrate 

irreparable injury.” SEALs, 2022 WL 34443, at *13. That holding is supported by Fifth 

Circuit precedent recognizing that a jab-or-job choice is irreparable harm supporting a 

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26

preliminary injunction. See Sambrano, 2022 WL 486610; BST Holdings, 17 F.4th 604.

Defendants do not even address these binding precedents, and their argument against 

irreparable injury fails.

B. The Balance of Harms and the Public Interest in Protecting Constitutional 

and Statutory Rights Weigh in Favor of an Injunction.

Furthermore, the balance of harms and the public interest clearly tilt in favor of 

issuing an injunction. Plaintiffs are being deprived of their First Amendment and RFRA 

rights. An injunction would prevent further harm and serve the public interest by 

“prevent[ing] constitutional deprivations.” See Jackson Women’s Health Organization, 

760 F.3d at 458 n.9.

Defendants nevertheless assert (at 42–43) that an interest in military readiness tilts 

the balance of harms and the public interest in their favor. But that argument fails for the 

same reasons that their arguments in support of a compelling interest in vaccinating 

Plaintiffs fail. The asserted interest in military readiness should be evaluated through the 

same lens as the compelling interest inquiry: whether Defendants would face harm by 

accommodating these particular Plaintiffs. See, e.g., Hobby Lobby, 573 U.S. at 726; 

Gonzalez v. O Centro Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 430–31 (2006).

And, where the military has already granted hundreds of exemptions from its mandate, 

Defendants cannot make that showing.11 See supra Section II.A.1.

11 Again, to the extent that Defendants impose restrictions on members with medical or 

administrative exemptions, they can provide that as evidence that imposing the same 

restrictions on religious requesters is necessary because to do otherwise would pose a real 

and concrete adverse impact on a compelling government interest. See Mot. for TRO and 

PI, ECF No. 4. And at most, such restrictions counsel in favor of issuing an injunction that 

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Defendants also assert (at 43) that the balance of harms and the public interest weigh 

in their favor based on the military’s interest in good order and discipline because Airmen 

cannot “feel free to define the terms of their own service and which orders they will choose 

to follow.” Plaintiffs feel no freedom of the sort. Until Defendants punished them for 

following their religious convictions, none had received discipline. Each Plaintiff is a 

highly decorated Airman who has followed all lawful orders. They want to continue their 

honorable service to their nation, but they cannot do so if Defendants force them to choose 

between their nation and their God. The military’s interest in good order and discipline 

cannot extend to forcing compliance with unlawful orders that require Plaintiffs to violate 

their religious conscience.

IV. The Requested Injunction Is Appropriate in Scope.

Finally, Defendants take special issue with two aspects of Plaintiffs’ proposed 

injunction: that it would apply nationwide, and that it includes a prohibition on making 

“personnel and assignment decisions” on the basis of Plaintiffs’ RARs or unvaccinated 

status unless Defendants can show that such decisions are necessary to prevent a real and 

concrete adverse impact on a compelling government interest. But both aspects of the 

proposed injunction are appropriate.

As to the first: Plaintiffs understand that this Court may wish to complete the 

briefing schedule set forth in its June 17, 2022 Order (ECF No. 24) before ruling on a 

class-wide preliminary injunction. Plaintiffs respectfully submit that a class-wide 

specifies that Defendants cannot take adverse action against Plaintiffs if such adverse 

action is not taken against servicemembers with secular accommodations. 

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temporary restraining order would be appropriate in the interim to protect other religious 

requesters from irreparable injury. As explained above, see supra Facts Section, 

Defendants have continued to hand out punishment and push toward separation 

proceedings while Plaintiffs’ motion has been pending. Only a temporary restraining order 

from this Court can protect Plaintiffs and those similarly situated from being punished and 

forced out of the Air Force based on their religiously motivated conduct.

This Court has the authority to issue that order. It is settled that a court need not 

formally certify a class to issue preliminary injunctive relief. See, e.g., Howe v. Varity 

Corp., 896 F.2d 1107, 1112 (8th Cir. 1990) (affirming preliminary injunction issued for 

conditionally certified class); Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 433 

(6th Cir. 2012) (“Simply put, there is nothing improper about a preliminary injunction 

preceding a ruling on class certification.”).

12 See also, e.g., Newberg on Class Actions 

§ 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide 

preliminary injunctive relief.”).

The scope of adverse action Plaintiffs ask this Court to enjoin is also appropriate and 

necessary to prevent Defendants from continuing to deprive Plaintiffs of their First 

12 Accord Lee v. Orr, No. 13-CV-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013)

(“The court may conditionally certify the class or otherwise order a broad preliminary 

injunction, without a formal class ruling, under its general equity powers. The lack of 

formal class certification does not create an obstacle to classwide preliminary injunctive 

relief when activities of the defendant are directed generally against a class of persons.”); 

Koss v. Norwood, 305 F. Supp. 3d 897, 921 (N.D. Ill. 2018) (same); O.B. v. Norwood, 170 

F. Supp. 3d 1186, 1200 (N.D. Ill. 2016) (same); N.Y. State Nat. Org. For Women v. Terry, 

697 F. Supp. 1324, 1336 (S.D.N.Y. 1988) (holding that “the Court acted in the only 

reasonable manner it could under the circumstances, ruling on the continuation of [the] 

temporary restraining order and leaving the question of class certification for another day”).

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29

Amendment and RFRA rights. Defendants’ reliance on the Supreme Court’s partial stay 

and Justice Kavanaugh’s accompanying concurrence in Austin v. Navy SEALs 1–26 is 

misplaced, as discussed in Section I.B.2 above. Justice Kavanaugh’s concurrence rested on 

the conclusion that less restrictive means were not available. Austin v. U. S. Navy Seals 1-

26, 142 S. Ct. 1301, 1302 (2022) (Kavanaugh, J., concurring). The Supreme Court in 

SEALs therefore did not face the kinds of facts at issue here, where Defendants themselves 

have powerfully demonstrated that less restrictive means are available and in use, both 

because they use less restrictive means for medically exempt servicemembers and because,

until Defendants’ mandate, all Plaintiffs safely performed their duties throughout the 

pandemic. See, e.g., Spence Aff. Ex. 4 ¶ 22, App.43; Wu Aff. Ex. 11 ¶ 21, App.132.

And again, Defendants ignore the fact that Plaintiffs’ requested injunction would 

allow Defendants to make personnel and assignment decisions based on vaccination status

so long as Defendants can demonstrate that doing so is necessary to avoid a real and 

concrete adverse impact on a compelling government interest, as RFRA and the First 

Amendment require. This Court will not interfere in any legitimate operational decision by 

prohibiting Defendants from breaking the law. The injunction would merely require 

Defendants to show, as the law mandates, that failing to take adverse action against a 

particular servicemember would have an adverse impact on a compelling government 

interest. Plaintiffs do not ask this Court to make public health or military operational 

decisions. They simply ask that it require Defendants to follow the law.

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30

CONCLUSION

Unless this Court acts immediately to issue a temporary restraining order, 

Defendants will continue to inflict adverse action upon Plaintiffs, as they already have done 

while Plaintiffs’ motion for a temporary restraining order and preliminary injunction has 

been pending. This Court has the authority to adjudicate this case, and Plaintiffs have made 

each showing necessary to qualify for the relief sought in their motion. Plaintiffs 

respectfully implore this Court to swiftly enjoin Defendants’ discriminatory and unlawful 

conduct.

June 27, 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

Case 4:22-cv-00453-O Document 27 Filed 06/27/22 Page 34 of 35 PageID 1679
31

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

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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