1 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

SAN ANGELO DIVISION 

ROBERT SCHELSKE, et al., 

 Plaintiffs, 

 v. 

LLOYD J. AUSTIN, III, 

United States Secretary of Defense, et al., 

 Defendants. 

No. 6:22-cv-0049-H 

DEFENDANTS’ MEMORANDUM IN OPPOSITION 

TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 1 of 51 PageID 544
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CONTENTS 

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

BACKGROUND ............................................................................................................................ 2

A. The COVID-19 Pandemic ....................................................................................... 2

B. Military Vaccination Directives .............................................................................. 3

C. The Army’s Implementation of the COVID-19 Vaccination Directive ................. 4

D. Other Litigation Regarding the Military’s Vaccination Requirement .................... 7

E. This Action.............................................................................................................. 9

LEGAL STANDARDS ................................................................................................................ 10

ARGUMENT ................................................................................................................................ 11

I. PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS. ............................ 11

A. Plaintiffs’ Claims Are Not Ripe. ........................................................................... 11

B. Plaintiffs Have Failed to Exhaust Intraservice Remedies. .................................... 15

C. Plaintiffs’ RFRA claims fail on the merits. .......................................................... 18

D. Plaintiffs’ First Amendment claims are unlikely to succeed on the merits. ......... 31

II. PLAINTIFFS ARE UNLIKELY TO SUFFER IRREPARABLE HARM 

ABSENT PRELIMINARY RELIEF ................................................................................ 35

III. THE EQUITIES AND PUBLIC INTEREST WEIGH AGAINST A 

PRELIMINARY INJUNCTION ...................................................................................... 37

IV. ANY INJUNCTION MUST BE TAILORED TO PLAINTIFFS. ................................... 39

CONCLUSION ............................................................................................................................. 40

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 ii 

AUTHORITIES 

CASES 

303 Creative LLC v. Elenis, 

6 F.4th 1160 (10th Cir. 2021), 

 cert. granted in part, 142 S. Ct. 1106 (2022) ........................................................................... 34 

Abbott v. Biden, 

--- F. Supp. 3d ---, 2022 WL 2287547 (E.D. Tex. June 24, 2022), 

 appeal filed, No. 22-40399 (5th Cir. June 29, 2022) .................................................................. 8 

Air Force Off. v. Austin, 

588 F. Supp. 3d 1338 (M.D. Ga. 2022) ...................................................................................... 8 

Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 

878 F.2d 806 (5th Cir. 1989) .................................................................................................... 10 

Am. Petroleum Inst. v. EPA, 

683 F.3d 382 (D.C. Cir. 2012) .................................................................................................. 14 

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 

897 F.3d 314 (D.C. Cir. 2018), cert. denied, 140 S. Ct. 1198 (2020) ...................................... 36 

Ass’n of Irritated Residents v. EPA, 

10 F.4th 937 (9th Cir. 2021) ............................................................................................... 11, 13 

Austin v. Navy SEALs 1–26, 

142 S. Ct. 1301 (2022) ....................................................................................................... passim

Bellinger v. Bowser, 

288 F. Supp. 3d 71 (D.D.C 2017) ............................................................................................. 36 

Biden v. Missouri, 

142 S. Ct. 647 (2022) ................................................................................................................ 30 

Burwell v. Hobby Lobby Stores, Inc., 

573 U.S 682 (2014). ...................................................................................................... 27, 28, 39 

Cargill v. Marsh, 

902 F.2d 1006 (D.C. Cir. 1990) ................................................................................................ 15 

Chappell v. Wallace, 

462 U.S. 296 (1983) .................................................................................................................. 39 

Church v. Biden, 

573 F. Supp. 3d 118 (D.D.C. 2021) ................................................................................... passim

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 3 of 51 PageID 546
iii 

City of Austin v. Kinder Morgan Tex. Pipeline, LLC, 

447 F. Supp. 3d 558 (W.D. Tex. 2020) ..................................................................................... 36 

Col. Fin. Mgmt. Off. v. Austin, 

--- F. Supp. 3d ---, 2022 WL 3643512 (M.D. Fla. Aug. 18, 2022) ............................................. 8 

Creaghan v. Austin, 

--- F. Supp. 3d ---, 2022 WL 1500544 (D.D.C. May 12, 2022), 

 appeal filed, No. 22-5135 (D.C. Cir. May 20, 2022) ......................................................... passim

Diraffael v. Cal. Mil. Dep’t, 

No. 10-cv-7240, 2011 WL 13274364 (C.D. Cal. Mar. 21, 2011) ............................................. 12 

DM Arbor Ct., Ltd. v. City of Houston, 

988 F.3d 215 (5th Cir. 2021) .................................................................................................... 11 

Doe #1-#14 v. Austin, 

572 F. Supp. 3d 1224 (N.D. Fla. 2021)....................................................................................... 8 

Doe v. San Diego Unified Sch. Dist., 

19 F.4th 1173 (9th Cir. 2021), 

 cert. and application for injunction denied, 142 S. Ct. 1099 (2022) ...................... 25, 27, 33, 35 

Does 1–6 v. Mills, 

16 F.4th 20 (1st Cir. 2021), 

 cert. denied sub nom. Does 1-3 v. Mills, 142 S. Ct. 1112 (2022) ............................ 25, 27, 29, 35 

Doster v. Kendall, 

---F. Supp. 3d ---, 2022 WL 982299 (S.D. Ohio Mar. 31, 2022) ............................................... 8 

Doster v. Kendall, 

No. 1:22-cv-84, 2022 WL 2974733 (S.D. Ohio July 27, 2022) ................................................. 8 

Dunn v. Austin, 

142 S. Ct. 1707 (2022) ................................................................................................................ 8 

Elrod v. Burns, 

427 U.S. 347 (1976) .................................................................................................................. 36 

Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 

494 U.S. 872 (1990) .................................................................................................................. 33 

Farmer v. Mabus, 

940 F.2d 921 (5th Cir. 1991) .................................................................................................... 10 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 4 of 51 PageID 547
iv 

Fourth Corner Credit Union v. Fed. Rsrv. Bank of Kan. City, 

861 F.3d 1052 (10th Cir. 2017) ................................................................................................ 14 

Fulton v. City of Philadelphia, 

141 S. Ct. 1868 (2021) ........................................................................................................ 33, 34 

Gill v. Whitford, 

138 S. Ct. 1916 (2018) .............................................................................................................. 39 

Gilligan v. Morgan, 

413 U.S. 1 (1973) ................................................................................................................ 10, 15 

Goldman v. Weinberger, 

475 U.S. 503 (1986) ...................................................................................................... 10, 20, 31 

Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal, 

546 U.S. 418 (2006) .................................................................................................................. 39 

Google, Inc. v. Hood, 

822 F.3d 212 (5th Cir. 2016) .................................................................................................... 36 

Guettlein v. U.S. Merch. Marine Acad., 

577 F. Supp. 3d 96 (E.D.N.Y. 2021) .......................................................................................... 8

Halczenko v. Ascension Health, Inc., 

37 F.4th 1321 (7th Cir. 2022) ................................................................................................... 37 

Heidman v. United States, 

414 F. Supp. 47 (N.D. Ohio 1976) ............................................................................................ 15 

Hodges v. Callaway, 

499 F.2d 417 (5th Cir. 1974) .................................................................................................... 15 

Huawei Techs. USA, Inc. v. FCC, 

2 F.4th 421 (5th Cir. 2021) ................................................................................................. 11, 13 

Kaemmerling v. Lappin, 

553 F.3d 669 (D.C. Cir. 2008) ............................................................................................ 28, 32 

Kane v. De Blasio, 

19 F.4th 152 (2d Cir. 2021) ...................................................................................................... 34 

Knick v. Austin, 

No. 22-1267, 2022 WL 2157066 (D.D.C. June 15, 2022) .............................................. 8, 12, 16 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 5 of 51 PageID 548
v 

La. Power & Light Co. v. Fed. Power Comm’n, 

526 F.2d 898 (5th Cir. 1976) .................................................................................................... 13 

Lacewell v. Off. of Comptroller of Currency, 

999 F.3d 130 (2d Cir. 2021)...................................................................................................... 11 

Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 

510 F.3d 253 (3d Cir. 2007)...................................................................................................... 34 

Lindenau v. Alexander, 

663 F.2d 68 (10th Cir. 1981) .................................................................................................... 10 

Lopez v. City of Houston, 

617 F.3d 336 (5th Cir. 2010) .............................................................................................. 12, 13 

Mark Short v. Berger, 

No. 22-cv-1151, 2022 WL 1051852 (C.D. Cal. Mar. 3, 2022), 

 appeal dismissed, No. 22-55339, 2022 WL 2421096 (9th Cir. May 17, 2022) ................ passim

Mazurek v. Armstrong, 

520 U.S. 968 (1997) .................................................................................................................. 10 

Miller v. Austin, 

 --- F. Supp. 3d ---, 2022 WL 3584666 (D. Wyo. Aug. 22, 2022) ...................................... passim

Mindes v. Seaman, 

453 F.2d 197 (5th Cir. 1971) .............................................................................................. 15, 16 

Miss. Power & Light Co. v. United Gas Pipe Line Co., 

760 F.2d 618 (5th Cir. 1985) .................................................................................................... 10 

Navy SEAL 1 v. Austin, 

--- F. Supp. 3d ----, 2022 WL 1294486 (D.D.C. Apr. 29, 2022), 

 appeal filed, No. 22-5114 (D.C. Cir. May 5, 2022) ........................................................... passim

Navy SEAL 1 v. Biden, 

No. 8:21-cv-2429, 2022 WL 483832 (M.D. Fla. Feb. 2, 2022) .................................................. 8 

Navy SEALs 1–26 v. Biden, 

578 F. Supp. 3d 822 (N.D. Tex. 2022) ................................................................................. 8, 35 

Navy SEALs 1–26 v. Austin, 

--- F. Supp. 3d ---, 2022 WL 1025144 (N.D. Tex. Mar. 28, 2022), 

 appeal filed, No. 22-10534 (5th Cir. May 31, 2022) .................................................................. 8 

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Nken v. Holder, 

556 U.S. 418 (2009) .................................................................................................................. 37 

Norris v. Stanley, 

No. 1:21-cv-756, 2022 WL 557306 (W.D. Mich. Feb. 22, 2022), 

 appeal filed, No. 22-1200 (6th Cir. Mar. 14, 2022) .................................................................. 30 

North Dakota v. United States, 

495 U.S. 423 (1990) .................................................................................................................. 38 

Oklahoma v. Biden, 

577 F. Supp. 3d 1245 (W.D. Okla. 2021) ............................................................................. 8, 22 

Orloff v. Willoughby, 

345 U.S. 83 (1953) .................................................................................................................... 39 

Parisi v. Davidson, 

405 U.S. 34 (1972) .................................................................................................................... 15 

Parker v. Levy, 

417 U.S. 733 (1974) .................................................................................................................. 15 

Poffenbarger v. Kendall, 

588 F. Supp. 3d 770 (S.D. Ohio 2022), 

 appeal dismissed, No. 22-3413, 2022 WL 3029325 (6th Cir. June 30, 2022) ........................... 8 

Robert v. Austin, 

No. 21-cv-2228, 2022 WL 103374 (D. Colo. Jan. 11, 2022), 

 appeal filed, No. 22-1032 (10th Cir. Feb. 2, 2022) .................................................. 8, 12, 13, 16 

Roberts v. Roth, 

-- F. Supp. 3d --, 2022 WL 834148 (D.D.C. Mar. 21, 2022) .............................................. 12, 14 

Rostker v. Goldberg, 

453 U.S. 57 (1981) .................................................................................................................... 10 

Roth v. Austin, 

--- F. Supp. 3d ---, 2022 WL 1568830 (D. Neb. May 18, 2022), 

 appeal filed, No. 22-2058 (8th Cir. May 20, 2022) .................................................. 8, 20, 21, 29 

S. Bay United Pentecostal Church v. Newsom, 

140 S. Ct. 1613 (2020) .............................................................................................................. 21 

Sample v. Morrison, 

406 F.3d 310 (5th Cir. 2005) .................................................................................................... 11 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 7 of 51 PageID 550
vii 

Schlesinger v. Ballard, 

419 U.S. 498 (1975) .................................................................................................................. 10 

Schlesinger v. Councilman, 

420 U.S. 738 (1975) .................................................................................................................. 15 

Shaw v. Austin, 

539 F. Supp. 3d 169 (D.D.C. 2021) .......................................................................................... 12

Shrimpers & Fisherman of the RGV v. U.S. Army Corps of Eng’rs, 

849 F. App’x 459 (5th Cir. 2021) ............................................................................................. 13 

Smith v. Harvey, 

541 F. Supp. 2d 8 (D.D.C. 2008) .............................................................................................. 14 

Solorio v. United States, 

483 U.S. 435 (1987) .................................................................................................................. 10 

Standage v. Braithwaite, 

526 F. Supp. 3d 56 (D. Md. 2021) ............................................................................................ 12 

Tagore v. United States, 

735 F.3d 324 (5th Cir. 2013) .................................................................................................... 39 

Tandon v. Newsom, 

141 S. Ct. 1294.......................................................................................................................... 33 

Tellabs, Inc. v. Makor Issues & Rts., Ltd., 

551 U.S. 308 (2007) .................................................................................................................... 2 

Thomas Short v. Berger, 

--- F. Supp. 3d ---, 2022 WL 1203876 (D. Ariz. Apr. 22, 2022), 

 appeal filed, No. 22-15755 (9th Cir. May 18, 2022) ................................................ 8, 11, 18, 36 

Thomas v. Union Carbide Agric. Prods. Co., 

473 U.S. 568 (1985) .................................................................................................................. 12 

Together Empls. v. Mass. Gen. Brigham Inc., 

19 F.4th 1 (1st Cir. 2021) .......................................................................................................... 37 

Toilet Goods Ass’n v. Gardner, 

387 U.S. 158 (1967) .................................................................................................................. 14 

TOTAL Gas & Power N. Am., Inc. v. Fed. Energy Regul. Comm’n, 

859 F.3d 325 (5th Cir. 2017) .................................................................................................... 14 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 8 of 51 PageID 551
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Trump v. Hawaii, 

138 S. Ct. 2392 (2018) .................................................................................................. 31, 33, 39 

U.S. Navy SEALs 1–26 v. Biden, 

27 F.4th 336 (5th Cir. 2022) ............................................................................................... 16, 17 

Unger v. Amedisys Inc., 

401 F.3d 316 (5th Cir. 2005) .................................................................................................... 40 

United States v. Elder, 

---F. Supp. 3d---, 2022 WL 836923 (E.D.N.Y. Mar. 21, 2022) ............................................... 29 

United States v. O’Brien, 

391 U.S. 367 (1968) .................................................................................................................. 19 

Valdez v. Grisham, 

559 F. Supp. 3d 1161 (D.N.M. 2021), 

 aff’d, 2022 WL 2129071 (10th Cir. June 14, 2022) ................................................................. 30 

Vance v. Wormuth, 

No. 3:21-cv-730, 2022 WL 1094665 (W.D. Ky. Apr. 12, 2022) ......................................... 8, 12 

Von Hoffburg v. Alexander, 

615 F.2d 633 (5th Cir. 1980) .................................................................................................... 15 

Voting for America, Inc. v. Steen, 

732 F.3d 382 (5th Cir. 2013) .................................................................................................... 35 

Wayte v. United States, 

470 U.S. 598 (1985) .................................................................................................................. 19 

We The Patriots USA, Inc. v. Hochul, 

17 F.4th 266 (2d Cir. 2021), opinion clarified, 17 F.4th 368 (2d Cir. 2021), and denying 

injunction pending appeal sub. nom., Dr. A. v. Hochul, 142 S. Ct. 552 (2021) ..... 27, 33, 34, 35

West v. Brown, 

558 F.2d 757 (5th Cir. 1977) .................................................................................................... 18 

Winter v. Nat. Res. Def. Council, Inc., 

555 U.S. 7 (2008) .......................................................................................................... 10, 20, 38 

Wyoming v. Zinke, 

871 F.3d 1133 (10th Cir. 2017) ................................................................................................ 14 

 

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STATUTES 

42 U.S.C. § 2000bb-1(b) ................................................................................................... 19, 21, 39 

RULES 

Fed R. Civ. P. 23 ........................................................................................................................... 40 

OTHER AUTHORITIES 

Army Reg. 40–562, (Feb. 16, 2018), 

 https://perma.cc/82YE-EA3U ..................................................................................................... 4 

CDC, Benefits of Getting a COVID-19 Vaccine (updated Aug. 17, 2022), 

 https://perma.cc/W66Y-3GU7 ............................................................................................ 26, 29

CDC, COVID-19, 

 https://perma.cc/A9D5-AUHV ................................................................................................... 2 

CDC, COVID Data Tracker (updated Nov. 2, 2022), 

 https://perma.cc/GEF8-GN28 ..................................................................................................... 3 

CDC, Interim Clinical Considerations for Use of COVID-19 Vaccines Currently Approved or 

Authorized in the United States (last updated Oct. 19, 2022), 

 https://perma.cc/MX32-F8XV .................................................................................................. 30 

CDC, Morbidity and Mortality Weekly Report (Mar. 18, 2022), 

 https://perma.cc/HJH3-PEN4.................................................................................................... 22 

CDC, Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, 

Communities, and Health Care Systems—United States (Aug. 2022), 

 https://perma.cc/Y7XV-4R3Q .................................................................................................. 26 

DoDI 1332.45, 

 https://perma.cc/9FNU-ZR89 ..................................................................................................... 4 

DoDI 6025.19, 

 https://perma.cc/TR75-JRVD ..................................................................................................... 4 

DoDI 6205.02 (July 23, 2019), 

 https://perma.cc/8HLA-AXQB ......................................................................................... 3, 4, 30 

Joint Explanatory Statement to Accompany the [NDAA] for Fiscal Year 2022, 

 Armed Services Committee Print No. 2 (Dec. 7, 2021), 

https://www.congress.gov/117/cprt/HPRT47742/CPRT-117HPRT47742.pdf ........................ 25 

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S. Rep. No. 103-111 (1993) .......................................................................................................... 20 

Sec’y of Def. Mem. (Aug. 9, 2021), 

 https://perma.cc/S4R3-2VZW ............................................................................................. 4,. 20 

Sec’y of Def. Mem. (Aug. 24, 2021), 

 https://perma.cc/N759-S758 ........................................................................................... 4, 20, 33 

Stanley Lemon, et al., Protecting Our Forces: Improving Vaccine Acquisition and 

Availability in the U.S. Military, Nat’l Acad. Press, 2002, 

 https://perma.cc/E545-TQ9G ...................................................................................................... 3 

U.S. Army, Who We Are (accessed Nov. 1, 2022), 

 https://perma.cc/VTU6-2U6R ................................................................................................... 23 

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INTRODUCTION 

In warfare, disease has historically accounted for more service member deaths than 

battlefield injuries, and a healthy fighting force has long been a key part of America’s military 

readiness. Decades before the COVID-19 pandemic, the Department of Defense implemented an 

immunization program requiring all service members to obtain at least nine vaccinations, and up 

to an additional eight depending on the circumstances. In August 2021, the Department of Defense 

added the COVID-19 vaccination to its list of required immunizations. This vaccination 

requirement continues to protect the health and readiness of the United States military by reducing 

the risk of severe illness, hospitalizations, and deaths among service members from a disease that 

has killed over one million Americans. 

Plaintiffs, five active-duty soldiers in the United States Army and five cadets at the United 

States Military Academy, allege that the military’s COVID-19 vaccination requirement violates 

their rights under the Religious Freedom Restoration Act (“RFRA”), Compl. ¶¶ 54–64, ECF No. 

1, and the Free Exercise Clause of the First Amendment, id. ¶¶ 65–71. They move for a preliminary 

injunction preventing the Army from enforcing its COVID-19 vaccination requirements against 

them or against “others similarly situated.” ECF No. 29 at 2. 

The motion should be denied because Plaintiffs fail to satisfy any of the rigorous 

requirements for obtaining a preliminary injunction. First, for several reasons, their claims are not 

likely to succeed on the merits. To start, the claims are not justiciable. Plaintiffs have not received 

a final decision on any discipline or proposed separation based on their failure to obey orders to 

vaccinate, rendering their claims unripe. And Plaintiffs may still avail themselves of extensive 

administrative procedures for challenging any future disciplinary or separation actions in 

connection with the COVID-19 vaccination requirement. Moreover, judicial review of the 

vaccination requirement would constitute improper judicial management and oversight of 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 12 of 51 PageID 555
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discretionary military decisions about how best to ensure military readiness and effectiveness. 

Even if the Court could reach the substance of Plaintiffs’ claims, Plaintiffs otherwise cannot 

prevail on the merits. Requiring Plaintiffs to receive a vaccination against a deadly, rapidly 

spreading virus violates neither RFRA nor the First Amendment because the United States Army 

has an extraordinarily compelling interest in military readiness and the health of its forces—

Plaintiffs included—and no less restrictive measure serves those interests as well as vaccination. 

While Plaintiffs rely heavily on what they describe as a disproportionate number of “secular” 

exemptions, they fail to note that the vast majority of those exemptions are temporary and, of those, 

most reflect soldiers who have pending religious accommodation requests that have yet to be 

decided. Indeed, every one of Plaintiffs received that exemption. When it comes to permanent 

exemptions, the Army has actually granted more religious exemptions than secular medical 

exemptions. Also, with no class certified, or even properly requested, Plaintiffs certainly have not 

shown that “others similarly situated” are entitled to an injunction, which as a rule must be 

narrowly tailored. Neither have Plaintiffs demonstrated irreparable injury nor shown that the 

balance of equities and public interest weigh in their favor. 

For these reasons, Plaintiffs’ motion for a preliminary injunction should be denied. 

BACKGROUND 

A. The COVID-19 Pandemic 

The virus SARS-CoV-2 causes a respiratory disease known as COVID-19 that can result 

in severe symptoms and death.1

 It has infected more than 97 million Americans and has killed over 

1

 Centers for Disease Control and Prevention (“CDC”), COVID-19, https://perma.cc/A9D5-

AUHV. The Court may take judicial notice of factual information available on government 

websites. See Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322–23 (2007). 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 13 of 51 PageID 556
3 

one million.2

 At least 97 service members have died from COVID-19, and over 386,000 have 

become ill. Decl. of Maj. Scott Stanley ¶ 3, A621–22. Of those 97 service members who died, 89 

were unvaccinated. Id. Many otherwise healthy service members who have been infected suffered 

severe illness, required hospitalization, or developed “long-haul” COVID-19, potentially affecting 

their long-term ability to perform their missions. Decl. of Col. Tanya Rans ¶¶ 9–11, A563–71. 

B. Military Vaccination Directives 

Vaccines have played a longstanding and important role in America’s military readiness. 

Military deaths from infectious diseases outnumbered those due to direct combat injuries until 

World War II, when vaccines became widespread. Stanley Lemon, et al., Protecting Our Forces: 

Improving Vaccine Acquisition and Availability in the U.S. Military at 3, Nat’l Acad. Press, 2002, 

https://perma.cc/E545-TQ9G. More recently, disease accounted for nearly 70% of U.S. Army 

hospital admissions during the Persian Gulf War. Id. at 10, Fig. 1-1. Military-mandated 

vaccinations mitigate this threat and reduce disease morbidity and mortality among service 

members. Id. at 10–11 (highlighting historical use of vaccines in armed conflict). The U.S. military 

instituted its first immunization program in 1777 when General Washington directed the 

inoculation of the Continental Army against smallpox. Id. at 12, tbl. 1-1. And for the past several 

decades, the military has implemented various inoculation measures to maintain the readiness of 

its force. Bryce H. P. Mendez, Cong. Rsch. Serv., IF11816, Defense Health Primer: Military 

Vaccinations (updated Aug. 6, 2021), https://crsreports.congress.gov/product/pdf/IF/IF11816/2. 

The military’s current immunization program is governed by Department of Defense 

Instruction (“DoDI”) 6205.02 (July 23, 2019), https://perma.cc/8HLA-AXQB. Even prior to 

COVID-19, nine vaccines—including the annual influenza vaccine—were required for all service 

2

 CDC, COVID Data Tracker (updated Nov. 8, 2022), https://perma.cc/UY4R-C2NF. 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 14 of 51 PageID 557
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members, and eight other vaccinations are required when certain elevated risk factors are present, 

such as deployment to certain parts of the world. Vaccination is part of the military’s overarching 

requirement that each service member be medically ready for service and immediate mobilization. 

See DoDI 6025.19, https://perma.cc/TR75-JRVD. Indeed, the Department of Defense has 

determined that “[t]o maximize the lethality and readiness of the joint force, all Service members 

are expected to be deployable.” DoDI 1332.45 ¶ 1.2, https://perma.cc/9FNU-ZR89. The 

Department generally aligns its immunization requirements for service members with 

recommendations from the CDC. DoDI 6205.02 ¶ 1.2, https://perma.cc/8HLA-AXQB. 

On August 9, 2021, the Secretary of Defense, noting the impact of COVID-19 on military 

readiness and concluding that vaccination “will ensure we remain the most lethal and ready force 

in the world,” announced that he would add the COVID-19 vaccine to the list of vaccines required 

for all service members by the earlier of mid-September 2021 or upon approval of a vaccine by 

the Food and Drug Administration (“FDA”). Sec’y of Def. Mem. (Aug. 9, 2021), 

https://perma.cc/S4R3-2VZW. On August 24, 2021, one day after the FDA announced its approval 

of the Pfizer vaccine, the Secretary directed the Military Departments to immediately ensure that 

all members of the Armed Forces were fully vaccinated against COVID-19. Sec’y of Def. Mem. 

(Aug. 24, 2021), https://perma.cc/N759-S758. Those with a previous SARS-CoV-2 infection who 

have not received a COVID-19 vaccine are not considered fully vaccinated. Id.

C. The Army’s Implementation of the COVID-19 Vaccination Directive 

Shortly after the Secretary issued the COVID-19 vaccination directive, the Army directed 

that all its service members become vaccinated. Decl. of Col. Kevin Mahoney ¶¶ 9–10, A533–34. 

Exemptions. As with other vaccination requirements, the Army has a process for granting 

appropriate medical and administrative (including religious) exemptions from the COVID-19 

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vaccination requirement. Service members need not receive the vaccine if they have been granted 

an exemption or have an exemption request or appeal pending. Mahoney Decl. ¶ 11, A534. 

Medical exemptions may be temporary or permanent and are determined by healthcare 

providers based on the health of the soldier and the vaccine in question. Mahoney Decl. ¶ 13, A535. 

They may be granted, for example, because a service member is pregnant, because of allergies to 

vaccine components, or because of a previous adverse response to immunization. Id. Certain 

administrative exemptions are granted to soldiers who are within 180 days of separation or 

retirement, in which case the exemption lasts only 180 days. See Army Reg. 40–562 ¶ 2-6.b(1), 

https://perma.cc/82YE-EA3U. A soldier may also receive a temporary administrative exemption 

while a request for a religious or medical exemption is pending. Mahoney Decl. ¶ 26, A542–43. 

Service members also may request a religious exemption, which is processed through their 

chain of command to the Surgeon General of the Army or his designee. Mahoney Decl. ¶ 17–18, 

A537–38. The service member’s commanders at each level review the request and make 

recommendations. Id. ¶ 18, A537. The requester is counseled by both a chaplain (who prepares a 

memorandum addressing the sincerity of the member’s beliefs) and a healthcare provider. Id. ¶ 19–

20, A538–39. If a request is denied, the service member may appeal to the Assistant Secretary of 

the Army for Manpower and Reserve Affairs, who, after receiving recommendations from the 

chain of command, issues a final decision granting or denying the request. Id. ¶ 21, A539–40. 

Refusals to vaccinate. If a soldier is denied an exemption and still refuses to comply with 

an order to vaccinate, commanders must begin an administrative process to address the 

noncompliance. Mahoney Decl. ¶ 27, A543. First, the commander requests a General Officer 

Memorandum of Reprimand (“GOMOR”), to which the service member may respond. Id. ¶ 28, 

A543–44. The issuing General Officer must then decide whether to place the GOMOR in the 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 16 of 51 PageID 559
6 

service member’s permanent file. Id. If the General Officer chooses permanent filing, the service 

member may appeal that decision first to the Department of the Army Suitability Evaluation Board 

and then to the Army Board for Correction of Military Records. Id. ¶ 29, A544. 

Commanders must also initiate separation proceedings for soldiers and cadets who refuse 

an order to vaccinate and do not have a pending request for exemption. Mahoney Decl. ¶ 30, A544–

45. The four enlisted Plaintiffs, who each have more than six years of service, may elect to proceed 

before an Administrative Separation Board. Id. ¶ 31, A545. In that event, the soldier is entitled to 

representation by counsel and may submit evidence, examine witnesses, present expert opinions, 

and make arguments. Id. ¶ 32, A545–46. Once proceedings conclude, the Board members make a 

recommendation to the separation authority. Id. If the Board recommends separation, the 

separation authority may accept or reject that recommendation. Id. If, on the other hand, the Board 

recommends retaining the soldier, the authority is bound by that decision and the soldier is retained. 

Id. Probationary officers, like Lieutenant Huntley Bakich, have the right to counsel and to rebut 

the reasons for separation given by the General Officer. Id. ¶ 34, A547. If the General Officer 

decides to separate, it goes to a Deputy Assistant Secretary, who may decide otherwise. Id.

Cadets at the U.S. Military Academy who refuse to be vaccinated are subject to a formal 

misconduct hearing before a board of three commissioned officers, to whom they may, with the 

aid of counsel, present evidence, witnesses, and arguments. Decl. of Col. Wilson Rutherford ¶¶ 8–

9, 14, A607–09. The board will then issue findings and recommendations, which, with the record 

of the hearings, are forwarded to the Commandant of Cadets for consideration. Id. ¶ 16, A610. The 

Commandant will make a recommendation to the Superintendent of the U.S. Military Academy, 

to which the cadet may submit a rebuttal. Id.. The Superintendent will review the record, a legal 

review from the Staff Judge Advocate, the Commandant’s recommendation, and any materials 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 17 of 51 PageID 560
7 

submitted by the cadet, and will then decide whether the cadet should be disenrolled from the 

academy due to misconduct. Id. ¶¶ 16–17, A610. The Superintendent is delegated authority to 

separate first- and second-year cadets, but upper-class cadets must be separated by the Assistant 

Secretary of the Army for Manpower and Reserve Affairs. Id. ¶¶ 18–19, A610–11. 

All enlisted members and officers may appeal a separation decision to the Army Discharge 

Review Board, which can review the character of, reason for, and authority behind a discharge. 

Mahoney Decl. ¶ 37, A548. In addition, they may appeal adverse separation decisions (including 

decisions by the Board of Inquiry and the Army Discharge Review Board) to the Army Board for 

Correction of Military Records, which has broad authority to remove error or injustice from 

military records, including the authority to remove an involuntary separation. Id. ¶ 38, A548. 

Two of the Plaintiffs (Lieutenant Huntley Bakich and Sergeant Peter Testa) still have 

outstanding appeals of the denials of their religious exemption requests. Decl. of Col. Michael 

Porges ¶¶ 6, 11, A552–53.3

 Five Plaintiffs have not yet been notified of any separation proceedings. 

Decl. of Capt. Chad Powers ¶ 6, A556; Supp. Rutherford Decl. ¶¶ 1, 5, 10, 12, A614, 616, 618, 

619. The remaining three Plaintiffs’ separation proceedings remain ongoing. Decl. of Capt. 

Matthew Walkingstick ¶¶ 7, 12, A634, 636; Supp. Rutherford Decl. ¶ 8, A617. 

D. Other Litigation Regarding the Military’s Vaccination Requirement 

In addition to this case, there have been numerous other challenges to the military’s 

vaccination requirement brought in district courts across the country. At least fifteen other courts 

have either rejected arguments for preliminary injunctive relief against the military or dismissed 

3

 Four Plaintiffs (all of them cadets) separately requested and were denied medical 

exemptions, and their appeals of those denials have recently been denied. Supp. Rutherford Decl. 

¶¶ 1, 5, 10, 12, A614, 616, 618, 619. 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 18 of 51 PageID 561
8 

the service members’ claims entirely.4

 In Dunn v. Austin, a RFRA case where the district court 

denied the preliminary-injunction motion, the Supreme Court denied the member’s application for 

an injunction pending appeal. 142 S. Ct. 1707 (2022) (mem.). 

Six courts have preliminarily enjoined other services from applying COVID-19 

vaccination requirements or from taking adverse action against plaintiffs in those cases.5 The 

government strongly disagrees with those decisions and has appealed five of them.6 In Austin v. 

Navy SEALs 1–26, the Supreme Court granted the government’s application for a partial stay of 

4

 See Miller v. Austin, --- F. Supp. 3d ---, 2022 WL 3584666 (D. Wyo. Aug. 22, 2022); Knick 

v. Austin, No. 22-1267, 2022 WL 2157066 (D.D.C. June 15, 2022); Robert v. Austin, No. 21-cv2228, 2022 WL 103374 (D. Colo. Jan. 11, 2022), appeal filed, No. 22-1032 (10th Cir. Feb. 2, 

2022); Church v. Biden, 573 F. Supp. 3d 118 (D.D.C. 2021); Navy SEAL 1 v. Austin, --- F. Supp. 

3d ----, 2022 WL 1294486 (D.D.C. Apr. 29, 2022), appeal filed, No. 22-5114 (D.C. Cir. May 5, 

2022); Creaghan v. Austin, --- F. Supp. 3d ---, 2022 WL 1500544 (D.D.C. May 12, 2022), appeal 

filed, No. 22-5135 (D.C. Cir. May 20, 2022); Thomas Short v. Berger, --- F. Supp. 3d ---, 2022 

WL 1203876 (D. Ariz. Apr. 22, 2022), appeal filed, No. 22-15755 (9th Cir. May 18, 2022); Vance 

v. Wormuth, No. 3:21-cv-730, 2022 WL 1094665 (W.D. Ky. Apr. 12, 2022); Mark Short v. Berger, 

No. 22-cv-1151, 2022 WL 1051852 (C.D. Cal. Mar. 3, 2022), appeal dismissed, No. 22-55339, 

2022 WL 2421096 (9th Cir. May 17, 2022); Roth v. Austin, --- F. Supp. 3d ---, 2022 WL 1568830, 

at *31 (D. Neb. May 18, 2022), appeal filed, No. 22-2058 (8th Cir. May 20, 2022); Dunn v. Austin, 

No. 22-cv-288 (E.D. Cal. Feb. 22, 2022) (“Dunn Op.”), A512; Doe #1-#14 v. Austin, 572 F. Supp. 

3d 1224 (N.D. Fla. 2021); Abbott v. Biden, --- F. Supp. 3d ---, 2022 WL 2287547, at *7 (E.D. Tex. 

June 24, 2022), appeal filed, No. 22-40399 (5th Cir. June 29, 2022); Oklahoma v. Biden, 577 F. 

Supp. 3d 1245 (W.D. Okla. 2021); Guettlein v. U.S. Merch. Marine Acad., 577 F. Supp. 3d 96 

(E.D.N.Y. 2021). 

5

 See Navy SEALs 1–26 v. Biden, 578 F. Supp. 3d 822 (N.D. Tex. 2022); Navy SEAL 1 v. 

Biden, No. 8:21-cv-2429, 2022 WL 483832 (M.D. Fla. Feb. 2, 2022) (Merryday, J.); Air Force 

Off. v. Austin, 588 F. Supp. 3d 1338 (M.D. Ga. 2022); Poffenbarger v. Kendall, 588 F. Supp. 3d 

770 (S.D. Ohio 2022), appeal dismissed, No. 22-3413, 2022 WL 3029325 (6th Cir. June 30, 

2022); Doster v. Kendall, ---F. Supp. 3d ---, 2022 WL 982299 (S.D. Ohio Mar. 31, 2022); Col. 

Fin. Mgmt. Off. v. Austin, --- F. Supp. 3d ---, 2022 WL 3643512 (M.D. Fla. Aug. 18, 2022) 

(Merryday, J.) (enjoining the Marine Corps after separating the case from Navy SEAL 1 and 

creating a new case number). 

6

 The district courts in Navy SEALs 1-26 and Doster subsequently entered class-wide 

preliminary injunctions against the Navy and the Air Force, respectively, which the government 

has also appealed. Navy SEALs 1–26 v. Austin, --- F. Supp. 3d ---, 2022 WL 1025144, at *9 (N.D. 

Tex. Mar. 28, 2022), appeal filed, No. 22-10534 (5th Cir. May 31, 2022); Doster v. Kendall, No. 

1:22-cv-84, 2022 WL 2974733, at *1 (S.D. Ohio July 27, 2022). 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 19 of 51 PageID 562
9 

the district court’s injunction. 142 S. Ct. 1301, 1301 (2022) (mem.). Similarly, in Navy SEAL 1, 

the Eleventh Circuit stayed the district court’s injunction pending appeal “insofar as it precludes 

the Navy from considering the plaintiffs’ vaccination status in making deployment, assignment, 

and other operational decisions.” No. 22-10645 (11th Cir. Mar. 30, 2022). Plaintiffs here propose 

that this Court impose the same limitation with respect to their requested injunction. ECF No. 29-1 

at 2. 

E. This Action 

On October 3, 2022, Plaintiffs brought this lawsuit on behalf of themselves and a purported 

class (for which they have yet to seek certification), alleging that that the Army’s COVID-19 

vaccination requirement violates their religious rights under RFRA and the First Amendment. See

Compl. ¶¶ 54–71. Each Plaintiff objects to being vaccinated against COVID-19, asserting that such 

vaccination conflicts with his religious beliefs, primarily because Plaintiffs are opposed to abortion 

and believe that the cells of an aborted fetus were used in the development and testing of the 

available vaccines. Id. ¶¶ 12–21.7

 Plaintiffs do not allege that the Army has concluded involuntary 

separation proceedings for any of them based on their refusal to vaccinate. 

About two weeks after bringing suit, Plaintiffs filed the instant motion for a preliminary 

injunction, asking the Court to enjoin Defendants (1) from taking “enforcement/punitive actions” 

against them or “others similarly situated” related to their requests for a religious accommodation 

from the COVID-19 vaccination requirement and (2) from taking “any disciplinary or separation 

7

 Plaintiff Sergeant Robert Schelske has indicated that he would not have any religious 

objections to taking the Covaxin vaccine and was at one point (with his commander’s full support) 

arranging a trip to India to receive it. Pls.’ App’x at 308; Walkingstick Decl. ¶ 10, A635. For 

reasons presently unknown, however, Sergeant Schelske appears to have abandoned his plans to 

receive Covaxin in India, Walkingstick Decl. ¶ 10, A635, which would have brought him into full 

compliance with the Army’s COVID-19 vaccination requirement. Mahoney Decl. ¶ 4, A531. 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 20 of 51 PageID 563
10 

measures” against them or “others similarly situated” based on their refusal to became vaccinated 

or based on their submission of a request for religious accommodation. ECF No. 29 at 2. 

LEGAL STANDARDS 

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. 

Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see also Miss. Power & Light Co. v. United 

Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). To justify this “drastic remedy,” a plaintiff 

must make a “clear showing” that (1) they have a substantial likelihood of success on the merits; 

(2) they will suffer irreparable harm without the requested injunction; (3) the balance of equities 

tips in their favor; and (4) preliminary relief serves the public interest. Mazurek v. Armstrong, 520 

U.S. 968, 972 (1997). Failure to demonstrate any one of these elements requires denial of 

preliminary relief. Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989). 

Additionally, courts extend great deference to the military in reviewing the “complex, 

subtle, and professional decisions as to the composition, training, equipping, and control of a 

military force,” which are “essentially professional military judgments.” Winter, 555 U.S. at 24 

(citation omitted); see also Farmer v. Mabus, 940 F.2d 921, 923 (5th Cir. 1991) (“[J]udicial 

intrusion into military matters is to be most cautiously . . . approached.”). As the Supreme Court 

has repeatedly emphasized, “it is difficult to conceive of an area of governmental activity in which 

the courts have less competence.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see also Schlesinger 

v. Ballard, 419 U.S. 498, 510 (1975) (“[I]t is the primary business of armies and navies to fight or 

be ready to fight wars should the occasion arise,” and the “responsibility for determining how best 

our Armed Forces shall attend to that business rests with Congress” and “the President.”); Rostker 

v. Goldberg, 453 U.S. 57, 66 (1981); Goldman v. Weinberger, 475 U.S. 503, 507 (1986). Such 

deference extends to constitutional claims and military decisions about the health and welfare of 

the troops. See, e.g., Solorio v. United States, 483 U.S. 435, 448 (1987); Lindenau v. Alexander, 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 21 of 51 PageID 564
11 

663 F.2d 68, 70–74 (10th Cir. 1981); Thomas Short, 2022 WL 1203876, at *13; Mark Short, 2022 

WL 1051852, at *7–8; Dunn Op. at 36, 46–48, A525–27. 

ARGUMENT 

I. PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS. 

A. Plaintiffs’ Claims Are Not Ripe. 

Plaintiffs’ claims are constitutionally and prudentially unripe because they have yet to 

receive final disciplinary or separation decisions for their refusal to be vaccinated against 

COVID-19.8 The ripeness doctrine “ensures that federal courts do not decide disputes that are 

‘premature or speculative,’” and reflects “‘Article III limitations on judicial power,’ as well as 

‘prudential reasons for refusing to exercise jurisdiction.’” DM Arbor Ct., Ltd. v. City of Houston, 

988 F.3d 215, 218 (5th Cir. 2021) (citation omitted). This doctrine is “designed ‘to prevent the 

courts, through avoidance of premature adjudication, from entangling themselves in abstract 

disagreements over administrative policies, and also to protect the agencies from judicial 

interference until an administrative decision has been formalized and its effects felt in a concrete 

way by the challenging parties.” Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (citation 

omitted); see also Huawei Techs. USA, Inc. v. FCC, 2 F.4th 421, 434 (5th Cir. 2021). 

Constitutional ripeness. “[T]he doctrine of constitutional ripeness overlaps with the 

standing doctrine, most notably in the shared requirement that the plaintiff’s injury be imminent 

rather than conjectural or hypothetical.” Lacewell v. Off. of Comptroller of Currency, 999 F.3d 130, 

149 (2d Cir. 2021) (citation omitted); see also Ass’n of Irritated Residents v. EPA, 10 F.4th 937, 

8

 Plaintiff Zakai Bufkin asserts that he is on an administrative leave of absence from the 

United States Military Academy without pay, Bufkin Decl. ¶ 22, Pls.’ App’x at 62, but he fails to 

explain that his pending placement on administrative leave is due solely to academic deficiencies 

and is unrelated to his vaccination status. Supp. Rutherford Decl. ¶ 2, A615. 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 22 of 51 PageID 565
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944 (9th Cir. 2021). Thus, if a “purported injury is ‘contingent [on] future events that may not 

occur as anticipated, or indeed may not occur at all,’ the claim is not ripe for adjudication.” Lopez 

v. City of Houston, 617 F.3d 336, 342 (5th Cir. 2010) (quoting Thomas v. Union Carbide Agric. 

Prods. Co., 473 U.S. 568, 580–81 (1985)). For this reason, courts have declined to review claims 

challenging military vaccination requirements, including on RFRA and Free Exercise grounds, 

prior to a final decision on separation or discipline. See Knick, 2022 WL 2157066, at *3; Vance, 

2022 WL 1094665, at *4–7; Robert, 2022 WL 103374, at *2–3; Church, 573 F. Supp. 3d at 136–

37; Miller, 2022 WL 3584666, at *4; Standage v. Braithwaite, 526 F. Supp. 3d 56, 94 (D. Md. 

2021); see also Diraffael v. Cal. Mil. Dep’t, No. 10-cv-7240, 2011 WL 13274364, at *3 (C.D. Cal. 

Mar. 21, 2011) (“[T]he commencement of discharge proceedings” is not sufficient injury when 

those “proceedings are still underway and to date no final determination has been reached[.]”). 

Courts have also rejected contentions that claims are ripe because separation processes may have 

a likely result. See, e.g., Roberts v. Roth, -- F. Supp. 3d --, 2022 WL 834148, at *6 (D.D.C. Mar. 

21, 2022) (explaining that the court was “in no position to make predictions as to what other entities 

might conclude,” and nothing could “change[] the fact that [the plaintiff] ha[d] yet to be 

discharged”); Shaw v. Austin, 539 F. Supp. 3d 169, 183 (D.D.C. 2021) (“[T]he Court cannot so 

easily dismiss the possibility that he will have a fair opportunity to make his case to a Board of 

Inquiry.”). 

This case warrants the same treatment. Plaintiffs seek to avoid the possibility of separation 

for disobeying an order to be vaccinated. Compl. ¶ 47. But no matter how confident they are about 

the outcome of ongoing or expected separation proceedings, claims seeking relief from militarydischarge decisions “are not ripe at the commencement of discharge proceedings; they are ripe 

only after a plaintiff has been discharged.” See Roberts, 2022 WL 834148, at *5. Separation 

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13 

proceedings have not been completed for any of the Plaintiffs—and may never be. Indeed, two of 

the Plaintiffs have yet to receive final decisions on their appeals from the initial denials of their 

requests for religious accommodation and do not currently face administrative separation. See 

supra at 7. All Plaintiffs still may be heard before any separation decisions could be made. See 

supra at 5–7. And even if the relevant authority were to decide to separate a soldier, which would 

not be for several months from the initiation of those proceedings, that Plaintiff would still be able 

to seek administrative relief from that decision before coming to federal court. See supra at 7. 

Plaintiffs thus seek to invoke this Court’s jurisdiction to remedy injuries that are merely theoretical 

and “based on nothing more than speculation” about events “that might never come to pass.” See 

Robert, 2022 WL 103374, at *3; accord Church, 573 F. Supp. 3d at 137; Miller, 2022 WL 3584666, 

at *4. As a constitutional matter, these claims are not ripe for review. 

Prudential ripeness. Plaintiffs’ claims are also unripe as a prudential matter. In evaluating 

prudential ripeness, a court considers “(1) the fitness of the issues for judicial resolution, and (2) 

the potential hardship to the parties caused by declining court consideration.” Lopez, 617 F.3d at 

341; see also Ass’n of Irritated Residents, 10 F.4th at 944 (noting these are prudential 

considerations). Plaintiffs must satisfy both prongs. Huawei Techs., 2 F.4th at 435 n.30. They 

satisfy neither. 

As to the first prong, Plaintiffs’ claims are not fit for judicial resolution because “matters 

‘still pending before’” an agency are “not yet ripe for judicial review.” Shrimpers & Fisherman of 

the RGV v. U.S. Army Corps of Eng’rs, 849 F. App’x 459, 462 (5th Cir. 2021) (quoting La. Power 

& Light Co. v. Fed. Power Comm’n, 526 F.2d 898, 910 (5th Cir. 1976)). As explained above, those 

Plaintiffs whose religious accommodation requests have been fully denied have yet to receive a 

final decision on any separation or discipline. Thus, proceeding now would require the Court “to 

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14 

adjudicate internal military affairs before the military chain of command has had full opportunity 

to consider” them. Church, 573 F. Supp. 3d at 137; see also Roberts, 2022 WL 834148, at *5–6; 

Miller, 2022 WL 3584666 at *3–5 (“Courts must not interfere . . . until the separation decision is 

final and can no longer be adjudicated within the military chain of command.”). Prudential ripeness 

poses the question not whether it is “possible” to resolve a claim, but “whether it is appropriate for 

the court to undertake the task.” Fourth Corner Credit Union v. Fed. Rsrv. Bank of Kan. City, 861 

F.3d 1052, 1060–61 (10th Cir. 2017) (citation omitted). Here, “‘judicial intervention’ at this stage 

would ‘inappropriately interfere with further administrative action’ on the matter before the 

Court.” Miller, 2022 WL 3584666 at *4 (quoting Wyoming v. Zinke, 871 F.3d 1133, 1141–42 (10th 

Cir. 2017)). 

The fact that, at some point in the future, the Army “may separate or otherwise discipline 

a Plaintiff for refusing to comply with its COVID-19 vaccination requirement cannot ripen this 

case.” Id. “Whether to separate or discipline a service member is a discretionary decision that is 

left, in the first instance, to the” Army. Id.; see also, e.g., Toilet Goods Ass’n v. Gardner, 387 U.S. 

158, 163–64 (1967). The “initiation of separation proceedings is [thus] a tentative action not fit for 

judicial review[,]” because “one can only speculate as to the final outcome of any proceedings.” 

Smith v. Harvey, 541 F. Supp. 2d 8, 13 (D.D.C. 2008). As explained, even those Plaintiffs currently 

in separation proceedings “still have multiple opportunities” to be heard by officials with authority 

to retain their service. Miller, 2022 WL 3584666, at *5. Therefore, at this point, it is entirely 

“possible that something” raised by a Plaintiff during his or her separation or postseparation 

proceedings “will compel [the Army] to drop the [separation],” obviating the need for any judicial 

involvement. See TOTAL Gas & Power N. Am., Inc. v. Fed. Energy Regul. Comm’n, 859 F.3d 325, 

336 (5th Cir. 2017); see also Am. Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012). 

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15 

Second, Plaintiff have not established that delaying judicial resolution of their claims until 

they have exhausted administrative remedies would cause them any hardship. As discussed above, 

Plaintiffs have not shown that they will likely suffer harm as a result of Defendants’ challenged 

actions, and all claims to the contrary rest on speculation. 

B. Plaintiffs Have Failed to Exhaust Intraservice Remedies. 

Plaintiffs’ claims are also not justiciable because have not exhausted remedial options 

available from the Army. “The basic purpose of the exhaustion doctrine is to allow an 

administrative agency to perform functions within its special competence—to make a factual 

record, to apply its expertise, and to correct its own errors so as to moot judicial controversies.” 

Parisi v. Davidson, 405 U.S. 34, 37 (1972). Requiring exhaustion in the military context is 

particularly appropriate, “given the judiciary’s lack of expertise in areas of military judgment and 

its long-standing policy of non-intervention in internal military affairs.” Heidman v. United States, 

414 F. Supp. 47, 48 (N.D. Ohio 1976) (citing Schlesinger v. Councilman, 420 U.S. 738 (1975); 

Parker v. Levy, 417 U.S. 733 (1974); Gilligan, 413 U.S. at 10). The Fifth Circuit has long required 

that a plaintiff first exhaust all “available intraservice corrective measures” before bringing to 

federal court claims implicating “internal military affairs.” Hodges v. Callaway, 499 F.2d 417, 

419–20 (5th Cir. 1974) (quoting Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971)); see also 

Von Hoffburg v. Alexander, 615 F.2d 633, 637 (5th Cir. 1980) (collecting cases); Cargill v. Marsh, 

902 F.2d 1006, 1007–08 (D.C. Cir. 1990) (per curiam). And even when a plaintiff meets this 

threshold exhaustion requirement, courts weigh several factors to determine the propriety of 

reviewing a claim challenging internal military matters: (i) the nature and strength of the plaintiffs’ 

challenge; (ii) the potential injury to the plaintiffs if review is refused; (iii) the type and degree of 

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

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16 

military expertise or discretion is involved. Mindes, 453 F.2d at 201.9

Exhaustion. Although Plaintiffs have sought exemptions from the Army’s vaccination 

requirement, two of them have not completed the administrative process for appealing the initial 

denials of their religious exemption requests, and none of them have completed administrative 

procedures to challenge any proposed separation or discipline. During that process, the Army can 

build a factual record and determine in the first instance whether a Plaintiff should be granted 

relief. For that reason, courts have denied relief to service members who similarly failed to exhaust 

available separation remedies before pursuing RFRA and Free Exercise challenges relating to the 

military’s vaccination directives. See, e.g., Church, 573 F. Supp. 3d at 136–38; Robert, 2022 WL 

103374, at *3; Knick, 2022 WL 2157066, at *3; Mark Short, 2022 WL 1051852, at *4; Miller, 

2022 WL 3584666, at *5. Plaintiffs do not dispute that two of them have not received final 

decisions on their requests for a religious exemption, and that none of them have concluded the 

Army’s separation or post-separation processes, which they must exhaust before bringing their 

claims to federal court. See, e.g., Church, 573 F. Supp. 3d at 136–38. 

Plaintiffs contend that exhaustion should be excused because “any further exhaustion 

would be futile.” Pls.’ Br., ECF No. 30, at 10. The various remaining administrative procedures 

available to Plaintiffs provide for thorough, individualized reconsideration before different 

9

 Plaintiffs incorrectly rely on U.S. Navy SEALs 1–26 v. Biden, 27 F.4th 336 (5th Cir. 2022), 

to argue that RFRA claims are not subject to Mindes. See Pls.’ Br. at 10. In granting a partial stay 

of an injunction that the Fifth Circuit had denied, the Supreme Court necessarily rejected the Fifth 

Circuit’s reasoning in that case. Austin v. U.S. Navy SEALs 1–26, 142 S. Ct. 1301 (2022) (mem.). 

Further, contrary to Plaintiffs’ contention, the Fifth Circuit in Navy SEALs 1–26 did not hold that 

Mindes is inapplicable to RFRA claims. The stay panel opined that it “would not be a stretch” to 

reach that conclusion but, “deferring to circuit precedent,” went on to apply Mindes. 27 F.4th at 

346. This Court must likewise defer to circuit precedent and apply Mindes. And it should do so 

considering the specific record in this case against the Army, not the record in some other case 

against a different branch. See id. 347 n.11 (noting that cases have reached different conclusions). 

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17 

decision-making authorities any of whom could reverse the decisions of which Plaintiffs complain. 

Indeed, Plaintiffs offer no support for their assertion of futility other than to cite three paragraphs 

in their verified complaint, none of which have anything to do with futility. See id. (citing Compl. 

¶¶ 13, 16, 21). Other than that, Plaintiffs simply assert—with no detailed explanation—that their 

claims are “otherwise justiciable” because, as alleged in Navy SEALs 1–26, the Army has somehow 

“effectively stacked the deck” against them. Id. (citing 27 F.4th at 347). They also rely vaguely on 

some unspecified “other reasons set forth by the Fifth Circuit in Navy Seals.” Id. (citing 27 F.4th 

at 346–49). But—without conceding that Navy SEALs was correctly decided—this Court should 

decide this case on the record before it, not unidentified aspects of the record in Navy SEALs 

There are some key distinctions here. For example, the Fifth Circuit relied heavily on 

evidence purportedly showing that the Navy’s process of reviewing religious accommodation 

requests was designed solely to effectuate a denial and that the Navy had approved zero requests 

for religious accommodation, contrasted with several permanent medical exemptions. 27 F.4th at 

341–42. The Fifth Circuit also had before it purported evidence that Navy commanders had 

informed service members that there would be a “blanket denial” of all religious accommodation 

requests. Id. at 342–43. There is no such evidence here. To the contrary, the Army has granted 

several requests for religious accommodation. Indeed, in the Army, the number of granted religious 

accommodations is greater than the number of granted permanent medical; and, unlike in cases 

involving other branches wherein exhaustion was found to be futile, most of the Army’s religious 

accommodations were granted to servicemembers not at the end of their service. See infra at 24–

26. These facts starkly distinguish the cases on which Plaintiffs rely while ignoring facts specific 

to the Army. This forecloses them from showing futility. 

Mindes factors. Even if Plaintiffs had exhausted all available administrative remedies, their 

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claims would still be unreviewable because the Mindes factors weigh against judicial review. First, 

Plaintiffs’ claims are unlikely to succeed on the merits for the reasons discussed below. Second, as 

discussed above, Plaintiffs offer insufficient evidence to show that they will likely suffer harm 

absent review. Given that two of them have yet to receive a decision on their appeals and all of 

them have substantial administrative remedies available to them, any harm is speculative. Finally, 

the third and fourth Mindes factors “present a single inquiry, focusing on disruption of military 

functions,” West v. Brown, 558 F.2d 757, 760–61 (5th Cir. 1977), and weigh decidedly against 

review. “[M]ilitary readiness and unit cohesion would be unacceptably harmed should the Court” 

issue the prayed-for declaratory or injunctive relief implicating the military’s “Vaccine Mandate.” 

Church, 573 F. Supp. 3d at 146–47; see also Stanley Decl. ¶ 22, A630 (“Given the tangible 

protection the vaccines afford service members against serious illness, hospitalization, and death, 

it is clear that COVID-19 vaccines improve readiness and preserve the DoD’s ability to accomplish 

its mission.”). “[F]orcing the [Army] to adjust to the risks of including unvaccinated [soldiers] in 

its ranks is a substantial interference.” Thomas Short, 2022 WL 1203876, at *15 (quoting Mark 

Short, 2022 WL 1051852, at *5). Even the risk of a single Plaintiff going unvaccinated is a serious 

concern because unvaccinated individuals have many times the risk of suffering severe illness 

from SARS-CoV-2 infection and requiring hospitalization or possible medical evacuation from a 

hostile area as a result. Stanley Decl. ¶ 22, A630. 

C. Plaintiffs’ RFRA claims fail on the merits. 

Plaintiffs cannot establish likely success on the merits of their respective RFRA claims.10 

10 For purposes of this motion, Defendants do not challenge the sincerity of Plaintiffs’ 

religious beliefs or their contention that receiving any of the available COVID-19 vaccines would 

substantially burden those beliefs. Defendants reserve the right to dispute those issues later in these 

proceedings. 

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19 

Military orders to vaccinate violate RFRA only if the government cannot “demonstrate[] that 

application of the burden to the person—(1) is in furtherance of a compelling governmental 

interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 

42 U.S.C. § 2000bb-1(b). But, here, requiring Plaintiffs to be vaccinated furthers compelling 

governmental interests in military readiness and in the health and safety of service members, and 

it is the least restrictive means of advancing those interests. As one district court observed, “a 

majority of the Supreme Court has already held . . . that the Government is likely to succeed on 

the merits on the same claims brought by Navy SEALs,” and although that decision may not be 

formally binding, “it is the most persuasive authority on which a District Court may rely.” Navy 

SEAL 1, 2022 WL 1294486, at *4 (citing Navy SEALs 1–26, 142 S. Ct. at 1301). 

Compelling Interest. Requiring Plaintiffs to be vaccinated against COVID-19 furthers 

compelling interests in military readiness and the health of service members, especially when 

evaluated under the substantial deference that courts afford military operational decision-making. 

“[N]o court has ever held that the military does not have a compelling interest in the health of its 

troops” or “that vaccination against harmful diseases does not serve a compelling government 

interest,” Navy SEAL 1, 2022 WL 1294486, at *9; see also Creaghan, 2022 WL 1500544, at *9 

(“[T]here can be no greater military interest than in keeping each servicemember fit and healthy 

enough to accomplish their duties.”). Instead, the Supreme Court has repeatedly emphasized that 

the government’s interest in the “maximum efficiency” of military operations is paramount, United 

States v. O’Brien, 391 U.S. 367, 381 (1968), and that “[f]ew interests can be more compelling than 

a nation’s need to ensure its own security[,]” Wayte v. United States, 470 U.S. 598, 611 (1985). 

And “[w]hen evaluating whether military needs justify a particular restriction on religiously 

motivated conduct, courts must give great deference to the professional judgment of military 

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20 

authorities concerning the relative importance of a particular military interest.” Mark Short, 2022 

WL 1051852, at *7 (quoting Goldman, 475 U.S. at 507). Congress intended to preserve these longstanding principles of military deference when enacting RFRA, even while applying strict scrutiny. 

S. Rep. No. 103-111, at 12 (1993) (“The courts have always recognized the compelling nature of 

the military’s interest in [good order, discipline, and security] in the regulations of our armed 

services,” and “have always extended to military authorities significant deference in effectuating 

these interests. The committee intends and expects that such deference will continue under this 

bill.”); see also Navy SEAL 1, 2022 WL 1294486, at *8. 

 After consulting with “medical experts and military leadership,” the Secretary of Defense 

“determined that mandatory vaccination against [COVID-19] is necessary to protect the Force and 

defend the American people.” See Sec’y of Def. Mem. (Aug. 24, 2021), https://perma.cc/N759-

S758; Sec’y of Def. Mem. (Aug. 9, 2021), https://perma.cc/S4R3-2VZW. The Army likewise 

found that COVID-19 vaccination is a “readiness, health, and welfare priority for the total Army.” 

Mahoney Decl. ¶ 10, A534. And “logic alone” dictates that “the military’s general compelling 

interest in ensuring the health of its servicemembers . . . distill[s] to a compelling interest in 

ensuring that [each individual service member] remains healthy enough to accomplish [his] 

duties.” Creaghan, 2022 WL 1500544, at *9; see also Roth, 2022 WL 1568830, at *17. The Court 

must “give great deference” to the “professional military judgments” of these leaders when it 

comes to what is needed to ensure military readiness and the welfare of service members. Winter, 

555 U.S. at 24–25 (citations omitted) (collecting cases). And “when executive officials ‘undertake 

to act in areas fraught with medical and scientific uncertainties,’ their judgments ‘should not be 

subject to second-guessing by an unelected federal judiciary, which lacks the background, 

competence, and expertise to assess public health.’” Mark Short, 2022 WL 1051852, at *5 (quoting 

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21 

S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613–14 (2020) (Roberts, C.J., 

concurring)); see also Creaghan, 2022 WL 1500544, at *8. 

 Here, the Army conducted, or is in the process of conducting, the individualized, “to the 

person” analysis that RFRA requires, 42 U.S.C. § 2000bb-1(b), considering each of the Plaintiffs’ 

particular circumstances and role within the military, and concluded, in eight cases, that allowing 

each of them to remain unvaccinated would undermine the military’s compelling interest in 

ensuring they can carry out their military duties effectively; see also, e.g., Roth, 2022 WL 1568830, 

at *15. For example, Plaintiff Samuel Galloway’s commanders explained that he is a construction 

engineer for the Brigade Engineer Battalion and cannot perform those duties remotely. A200. In 

addition, Sergeant Galloway’s commanders noted that he is a member of a rapidly deployable 

infantry Brigade and, as such, is expected to be able to travel and deploy “at a moment’s notice 

anywhere at any time.” Id. For these specific reasons, his commanders recommended that his 

request for religious accommodation be denied, and the deciding authority followed that 

recommendation and explained why, id., A205, as did the authority denying Sergeant Galloway’s 

appeal, id., A226. 

The Army’s decisions to deny the religious accommodation requests of Plaintiffs are amply 

supported by evidence showing COVID-19’s harmful impact on military readiness overall. 

COVID-19 has “impacted all elements of DoD simultaneously,” including exercises, deployments, 

redeployments, and other global force management activities, Stanley Decl. ¶ 4, A622, caused the 

cancellation of numerous significant preparedness and readiness events, suspended operations, and 

resulted in inoperability of aircraft carriers for months in strategically significant areas, id. ¶¶ 5–

11. A622–24; and infected hundreds of thousands of service members, hospitalized thousands, and 

tragically caused the loss of 97 service members, id. ¶ 3. A621–22. 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 32 of 51 PageID 575
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The Army’s judgment is also supported by the positive effects that COVID-19 vaccination 

has had on force readiness and health. Vaccinations have reduced the risk of serious illness, 

hospitalizations, and deaths of service members. Stanley Decl. ¶¶ 16–18, A627–28; Rans Decl. ¶ 

8, 11–12, A562, A568–71; see also Church, 573 F. Supp. 3d at 147 (requiring vaccination is 

“supported by a lengthy record replete with data demonstrating the necessity of a general vaccine 

mandate”); Mark Short, 2022 WL 1051852, at *7 (noting “the empirical evidence in the record of 

the vaccine’s efficacy” and the military’s “evidence-based approach in its reliance on 

vaccination”); Oklahoma, 577 F. Supp. 3d at 1265 (stressing that the vaccine “has been shown to 

be remarkably effective in mitigating the effects of the pandemic which has affected . . . thousands 

of service members”). The overwhelming percentage of the service members who have died from 

COVID-19 were unvaccinated. Stanley Decl. ¶ 3, A621–22; Rans Decl. ¶ 12, A571. Likewise, 

“[b]etween July and November of 2021, non-fully-vaccinated active-duty service members had a 

14.6-fold increased risk of being hospitalized when compared to fully vaccinated active-duty 

service members.” Stanley Decl. ¶ 18, A628. A recent study published by the CDC confirmed 

mRNA vaccine effectiveness against invasive mechanical ventilation or death during the Omicronpredominant period. See CDC, Morbidity and Mortality Weekly Report (Mar. 18, 2022), 

https://perma.cc/HJH3-PEN4. Vaccinations also reduced the number of service members required 

to quarantine, permitted the military to return to higher levels of occupancy in military facilities 

and to hold in-person training, and allowed service members to participate in joint training 

exercises with partner countries that have vaccination requirements. Stanley Decl. ¶ 14, A626. In 

short, “[g]iven the tangible protection the vaccines afford service members against serious illness, 

hospitalization, and death, it is clear that COVID-19 vaccines improve readiness and preserve the 

DoD’s ability to accomplish its mission.” Id. ¶ 22, A630–31. 

Case 6:22-cv-00049-H Document 38 Filed 11/08/22 Page 33 of 51 PageID 576
23 

Vaccination especially furthers the Army’s mission to “deploy, fight and win our nation’s 

wars by providing ready, prompt and sustained land dominance by Army forces across the full 

spectrum of conflict as part of the joint force.” U.S. Army, Who We Are, https://perma.cc/VTU6-

2U6R (accessed Nov. 1, 2022). Maintaining a fully vaccinated force is key to this mission in 

multiple ways. First, it is necessary to ensure that soldiers can meet the vaccination requirements 

for deployment set by individual combatant commands around the world, all of whom currently 

require soldiers deployed to their areas of responsibility be fully vaccinated against COVID-19 

(subject to exceptions, which are uncertain). Mahoney Decl. ¶¶ 6, 8, A532–33. In addition, and 

critically, vaccination minimizes the risk that soldiers will become ill while deployed to austere 

environments (or while supporting deployed soldiers) in a way that renders them unable to perform 

their critical duties. Id. ¶ 6, A532. This is a consideration for every one of the solider Plaintiffs. 

Porges Decl. ¶ 2, A551 (“Every Soldier in the Battalion is needed to ensure it can fulfil its mission 

on short-notice deployment anywhere around the world.”); Walkingstick Decl. ¶ 1, A632 (“The 

Company’s mission is critical to ensuring that deploying Army units, and other Services, have well 

trained and capable Collection Analysts to provide commanders in training and combat with 

signals intelligence.”). Each of those Plaintiffs plays a role in ensuring that the United States 

maintains a superior combat power and would be unable to fulfill his role were he to become 

seriously ill. Porges ¶¶ 5, 10, A552–53 (1LT Bakich and SSG Testa); Walkingstick ¶¶ 4, 9, A632–

35 (SSG Costroff and SSG Schelske). As a specific example, Sergeant Galloway’s duties include 

leading a squad of paratroopers to jump out of military aircraft during flight and to fight the enemy 

at or near a drop zone. Powers Decl. ¶ 4, A555–56. Remaining healthy is critical to his ability to 

fulfill this leadership role and, by extension, to the military readiness of his company. Id. Similarly, 

the five cadet Plaintiffs, immediately upon graduation, will be expected to serve in direct 

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24 

leadership roles in Army units throughout the world, which cannot be accomplished remotely. 

Rutherford Decl. ¶ 3, A605. Moreover, they will be expected to remain deployable, which requires 

that they remain in good health and able to meet the vaccination requirements of combatant 

commands. Mahoney Decl. ¶ 6, 8, A532–33. Thus, contrary to Plaintiffs’ assertion, Pls.’ Br. at 13, 

the Army has a compelling interest in vaccinating each of the Plaintiffs individually; not merely a 

generalized interest in vaccinating some percentage of its forces. 

Plaintiffs fail to undercut the Army’s compelling interests in vaccination. They note the 

availability of “secular” exemptions and rely on the Navy SEAL 1–26 court’s conclusion that, in 

that case, the Navy was found to have granted “thousands” of secular exemptions, compared with 

relatively few religious exemptions. Pls.’ Br. at 14. That is not what the record in this case shows. 

Here, the Army has granted 60 permanent religious exemptions which is comparable to than the 

585 permanent medical exemptions, that it has granted. Mahoney Decl. ¶¶ 16, 25, A536–37, 

A541–42. And those religious exemptions were granted to service members at least one year away 

from their end of service. Id. ¶ 25, A541. Plaintiffs also state in their background section that the 

Army has granted what they indiscriminately describe in their complaint “close to 15,000 

permanent and temporary secular exemption requests.” Pls.’ Br. at 6. Plaintiffs ignore, however, 

that this number primarily reflects soldiers who have a pending request for a religious 

accommodation. Mahoney Decl. ¶ 26, A542–43. Indeed, Plaintiffs benefitted from precisely this 

exemption (and two of them still do). Of the temporary exemptions in place as of November 4, 

2022, about 13,000 reflect a pending religious accommodation request. Id. And just over 600 are 

temporary medical exemptions, reflecting either a temporary medical condition or a pending 

request for a permanent medical exemption. Id. But a temporary medical exemption is materially 

different from the permanent exemptions demanded by religious objectors. Temporary medical 

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exemptions are generally granted to those with a medical condition that will eventually resolve, 

permitting them to become vaccinated. Vaccinating a soldier in such circumstances could harm the 

member’s health, thereby undermining from the military’s interests in ensuring readiness and the 

health and safety of members. See Navy SEAL 1, 2022 WL 1294486, at *12 (“[T]he Navy grants 

medical exemptions only on a showing of a contraindication, i.e., upon a showing that vaccination 

would cause more medical harm than it would good. In those circumstances, therefore, lack of 

vaccination in fact serves the military’s interest in maintaining the health of individual 

servicemembers and force readiness broadly.”); see also Mark Short, 2022 WL 1051852, at *8; 

Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1178 (9th Cir. 2021), cert. and application for 

injunction denied, 142 S. Ct. 1099 (2022); Does 1–6 v. Mills, 16 F.4th 20, 31 (1st Cir. 2021), cert. 

denied sub nom. Does 1-3 v. Mills, 142 S. Ct. 1112 (2022). Likewise, when medical exemptions 

authorized for service members participating in COVID-19 vaccine clinical trials serve to further 

the efficacy of the vaccine and vaccine development, and so comport with the military’s 

compelling interests in a manner that a religious accommodation would not. And the 

administrative exemptions generally Awarded to soldiers who are within 180 days of separation or 

retirement are appropriate because requiring vaccination of individuals leaving the force would 

not further the military’s interest in ensuring readiness.11 In light of these distinctions, Plaintiffs 

are wrong that there is “no reason” for the Army to distinguish between permanent religious 

exemptions and other exemptions. Pls.’ Br. at 14. 

11 This effectuates the stated intent of Congress. See Joint Explanatory Statement to 

Accompany the [NDAA] for Fiscal Year 2022, Armed Services Committee Print No. 2 at 1053-

54 (Dec. 7, 2021) https://www.congress.gov/117/cprt/HPRT47742/CPRT-117HPRT47742.pdf 

(“We also expect the Department to include . . . exemptions [from mandatory COVID-19 

vaccination] for servicemembers nearing separation and retirement in the development of uniform 

procedures relating to administrative exemptions.”). 

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Plaintiffs are also wrong that the Army has not granted any religious accommodations other 

than to soldiers at the end of their service. They again misleadingly alter quotations from Navy 

SEALs to pretend that court made such a finding with respect to the “Army.” Pls.’ Br. at 14. But 

that finding related to solely the Navy. The record in this case shows the opposite. Most of the 

religious accommodations granted by the Army are to soldiers who are over a year from the end 

of their service, Mahoney Decl. ¶ 25, A541–42, and Plaintiffs’ uninformed assertion to the contrary 

is flatly incorrect. Plaintiffs are also wrong to rely on the findings from Navy SEALs to assert that 

the denials of Plaintiffs’ requests for religious accommodation do not articulate “Plaintiff-specific 

reasons” for the decisions. Pls.’ Br. at 14. The record here makes clear that the Army considered 

Plaintiffs’ specific circumstances when considering their requests for religious accommodation. 

See supra at 21. 

Plaintiffs’ invocation of the CDC’s recent updates to its guidance, see Pls.’ Br. at 15–16, 

only confirms that vaccination remains essential to preventing serious illness, hospitalization, and 

death from COVID-19 infection. On August 11, 2022, the Centers for Disease Control and 

Prevention issued a Summary of Guidance for Minimizing the Impact of COVID-19 on Individual 

Persons, Communities, and Health Care Systems. See CDC, Summary of Guidance for Minimizing 

the Impact of COVID-19 on Individual Persons, Communities, and Health Care Systems—United 

States (Aug. 2022), https://perma.cc/Y7XV-4R3Q (hereinafter “CDC, Summary of Guidance”); 

see also CDC, Benefits of Getting a COVID-19 Vaccine (updated Aug. 17, 2022), 

https://perma.cc/W66Y-3GU7. As the CDC explains, even though vaccines “provide a lesser 

degree of protection against asymptomatic and mild infection,” they “are highly protective against 

severe illness and death,” which is precisely what the Army has a compelling interest in avoiding. 

CDC, Summary of Guidance. The CDC’s guidance squarely supports the Army’s compelling 

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27 

interest. 

Plaintiffs also argue that they have successfully performed their duties while their requests 

for religious accommodation were pending and they remained unvaccinated. Pls.’ Br. at 14. But as 

a general proposition, there can be no question that the COVID-19 pandemic has severely 

disrupted the military and caused thousands of hospitalizations and dozens of deaths among 

unvaccinated personnel. Stanley Decl. ¶¶ 3, 4–13, A621–26. The fact that Plaintiffs may have been 

fortunate thus far is no guarantee that there is no risk that they will become seriously ill from 

COVID-19 in the future. And “merely because the military has found ways to perform its duties 

despite the risks of COVID-19 does not mean it must endure these risks indefinitely when there 

are effective means of mitigating them.” Mark Short, 2022 WL 1051852, at *9. To the contrary, 

the military is nevertheless “entitled to use the most effective means available to end its crisis 

footing and return to a semblance of normalcy.” Id. Plaintiffs cannot turn a permissive policy of 

allowing them to serve while their religious accommodation requests are pending into a sword 

requiring a permanent exemption. 

 Least Restrictive Means. As other courts have found in non-military settings, a uniform 

practice of vaccination is the least restrictive means for accomplishing the government’s interest 

in preventing the spread of infectious diseases in the workforce.12 This reasoning has even greater 

force in the military setting, where health of service members is paramount to military readiness, 

and where the acceptable level of risk to the mission must be a military, not judicial, judgment. 

12 See, e.g., Does 1–6, 16 F.4th 20 (health-care workers); Doe, 19 F.4th 1173 (students); We 

The Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2d Cir. 2021) (health-care workers), , opinion 

clarified, 17 F.4th 368 (2d Cir. 2021), and denying injunction pending appeal sub. nom., Dr. A. v. 

Hochul, 142 S. Ct. 552 (2021); see also Burwell, 573 U.S. at 733 (recognizing that vaccines “may 

be supported by” the government’s compelling interest in “the need to combat the spread of 

infectious diseases”) 

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See Navy SEALs 1–26, 142 S. Ct. at 1302 (Kavanaugh, J., concurring) (cautioning that a court may 

not “insert[] itself into the [military’s] chain of command, overriding military commanders’ 

professional military judgments”); Mark Short, 2022 WL 1051852, at *7 (emphasizing deference 

to military judgments and adding that “[t]his deference is layered on top of the deference that 

courts must give to expert policymakers on matters involving complex medical or scientific 

uncertainties”); Dunn Op. at 37–42, A516–21 (finding vaccination of an Air Force officer to be the 

least restrictive means, including because of the necessary deference afforded to military 

assessments). 

After careful consideration of Plaintiffs’ requests for a religious accommodation and their 

respective appeals, the final decision authority concluded that no lesser restrictive means 

sufficiently serve the Army’s compelling interests in readiness and ensuring the health and safety 

of all service members equally well. Notably, the Army is not required to use an alternative that 

does not serve its compelling interests “equally well” relative to vaccination. See Burwell v. Hobby 

Lobby Stores, Inc., 573 U.S. 682, 731 (2014) (examining whether alternative served stated interest 

“equally well”); Kaemmerling v. Lappin, 553 F.3d 669, 684–85 (D.C. Cir. 2008) (rejecting RFRA 

and constitutional challenges against DNA Act, where “[a]ny alternative method of identification 

would be less effective” in accomplishing the government’s compelling interests (emphasis 

added)). 

Among other things, the Army considered the feasibility of remote work options, but 

concluded that these were not available. See, e.g., A023, A200, A381. The Army evaluated the 

feasibility and effectiveness of masking and distancing but concluded that those measures are not 

as effective as vaccination. See, e.g., A072, A109, A134. And indeed, unlike vaccination, masking 

and distancing do not provide any protection from severe illness or death once a person becomes 

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29 

infected. See Roth, 2022 WL 1568830, at *23. Also, unlike vaccination, the effectiveness of 

masking and distancing fluctuates based on human behavior and how compliant each individual is 

with the requirements. See Rans Decl. ¶ 10, A567–68; see also United States v. Elder, ---F. Supp. 

3d---, 2022 WL 836923, at *9 (E.D.N.Y. Mar. 21, 2022) (“By themselves, face masks, social 

distancing, and similar measures may be effective for small groups over short periods of time, but 

fail to ensure the safety of large groups in close contact for sustained periods.”) 

Similarly, serial testing and temperature checks do not prevent a service member who tests 

positive from suffering serious health outcomes, such as long COVID, hospitalization, and death. 

Moreover, the “virus can be easily transmitted to others prior to symptom development and 

therefore may infect significant numbers before being identified.” Rans Decl. ¶ 10, A567–68. 

Indeed, the military experienced multiple COVID-19 outbreaks when it merely required service 

members to undergo routine testing requirements, rather than requiring vaccination. Stanley Decl. 

¶¶ 7–8, A622–24; see also Does 1-6, 16 F.4th at 33 (noting same was true of Maine). 

Plaintiffs’ alleged “natural immunity,” Pls.’ Br. at 17, is also not a less restrictive means. 

While a prior infection can provide some protection against another infection for some amount of 

time, the available medical evidence leaves much unknown about the strength, consistency and 

duration of that protection. Rans Decl. ¶¶ 20–22, 24, 29, A578–86; Dunn Op. at 39–40 (“[I]t’s not 

well established that a natural immunity is effective, more effective or as effective as the 

vaccine.”), A518–19. Recent guidance from the CDC confirms this. CDC, Benefits of Getting a 

COVID-19 Vaccine – Protection from COVID-19 (Aug. 17, 2022), https://perma.cc/W66Y-3GU7 

(“While people can get some protection from having COVID-19, the level and length of that 

protection varies, especially as COVID-19 variants continue to emerge.”). Moreover, evidence 

shows that protection from a prior infection increases following vaccination. Rans Decl. ¶ 21, 

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A580; CDC, Benefits of Getting a COVID-19 Vaccine (Aug. 17, 2022), https://perma.cc/W66Y3GU7 (“[P]eople can get added protection by getting vaccinated after having been infected with . 

. . COVID-19.”). The Army has therefore determined, consistent with guidance from the CDC, 

that vaccination is the best way to minimize the risk posed by COVID-19 to military readiness. 

Mahoney Decl. ¶ 14 & n.3, A536; see also DoDI 6205.02 ¶ 1.2, https://perma.cc/8HLA-AXQB 

(mandating vaccination in accordance with the CDC’s recommendations); CDC, Interim Clinical 

Considerations for Use of COVID-19 Vaccines Currently Approved or Authorized in the United 

States (last updated Oct. 19, 2022), https://perma.cc/MX32-F8XV (recommending COVID-19 

vaccination for individuals five and over “regardless of a history of symptomatic or asymptomatic 

[COVID-19] infection,” and “serologic testing to assess for prior infection is not recommended 

for the purpose of vaccine decision-making”).13

Nor do Plaintiffs present a less restrictive means by asserting that the Army may place them 

in an occupational specialty that could be performed entirely remotely and does not require them 

to remain medically ready to deploy. Pls.’ Br. at 17–18. Plaintiffs do not identify any specific 

assignment that any particular Plaintiff would be willing and qualified to perform and would not 

have the potential for world-wide deployment, leaving this contention to vague and amorphous to 

permit a response. And it cannot be a least restrictive alternative to place the burden on the military 

to seek a new occupation and assignment for potentially thousands of servicemembers—already 

trained for their occupation and assigned to a deployable unit—who have sought a religious 

13 Cf. Biden v. Missouri, 142 S. Ct. 647, 653–54 (2022) (concluding that it was rational for 

an agency to rely on CDC guidance in requiring vaccination even for individuals with “natural 

immunity” from prior COVID-19 illness); Norris v. Stanley, No. 1:21-cv-756, 2022 WL 557306, 

at *4 (W.D. Mich. Feb. 22, 2022) (similar), appeal filed, No. 22-1200 (6th Cir. Mar. 14, 2022); 

Valdez v. Grisham, 559 F. Supp. 3d 1161, 1177 (D.N.M. 2021)(similar), aff’d, 2022 WL 2129071 

(10th Cir. June 14, 2022). 

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exemptions. Indeed, making a service member nondeployable would itself undermine the 

military’s compelling interest in military readiness. See Mahoney Decl. ¶ 8, A533.14

D. Plaintiffs’ First Amendment claims are unlikely to succeed on the merits. 

Plaintiffs also press First Amendment claims, contending that the Army is “favoring 

secular exemptions while relegating religious exemptions to a second-class status.” Pls.’ Br. at 18. 

As a threshold matter, there should be no need for the Court to address the First Amendment claim 

separately. If the Army prevails on the RFRA claim, then it necessarily prevails on the First 

Amendment claim. Conversely, if Plaintiffs prevail under RFRA, the Court could grant relief 

without considering Plaintiffs’ First Amendment claim and thus avoid unnecessarily confronting 

a constitutional question. 

In any event, Plaintiffs First Amendment claim should fail. The Supreme Court has 

explicitly held that “the First Amendment does not require the military to accommodate [religious] 

practices in the face of its view that they would detract from the [military mission].” Goldman, 

475 U.S. at 509-10. Indeed, “review of military regulations challenged on First Amendment 

grounds is far more deferential than constitutional review of similar laws or regulations designed 

for civilian society.” Id. at 507; id. at 510 (rejecting a service member’s Free Exercise Clause claim 

because the Air Force “reasonably and evenhandedly regulate[s] dress in the interest of the 

military’s perceived need for uniformity”); cf. Trump v. Hawaii, 138 S. Ct. 2392, 2420 n.5 (2018) 

(noting, in rejecting, Establishment Clause claim, that the respondents there “cite no authority for 

14 Plaintiffs also contend that the Army could simply do nothing about individuals who refuse 

to be vaccinated on religious grounds, either because there is a high rate of overall vaccination or 

because vaccination does not guarantee immunity. Pls.’ Br. at 8–9. This suggestion is not a “less 

restrictive means” in any sense because it does not address the Army’s stated concern with 

preventing the severe symptoms, hospitalizations, and deaths that negatively impact military 

readiness. 

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[their] proposition that the more free-ranging inquiry [they] propose[] is appropriate in the national 

security . . . context”). This precedent “[a]t a minimum” suggests that “when a member of the 

military challenges a regulation or policy of the military on Free Exercise grounds, courts should 

normally apply a level of scrutiny below that of strict scrutiny and evidently comparable to rational 

basis review.” Navy SEAL 1, 2022 WL 1294486, at *13; see also Creaghan, 2022 WL 1500544, 

at *7. 

Plaintiff’s claim founders under Goldman’s highly deferential standard. “[T]he 

overwhelming weight of scientific authority supports the proposition that COVID-19 vaccination 

reduces the severity and duration of disease,” and in light of those benefits, requiring vaccination 

clearly advances the Army’s interest in force readiness and the health and wellbeing of service 

members. Navy SEAL 1, 2022 WL 1294486, at *10. And, as shown above, Plaintiffs are simply 

wrong that secular exemptions receive more favorable treatment than religious exemptions. The 

Army has granted a comparable number of religious exemptions and permanent medical 

exemptions, and not all of those religious exemptions have been granted to soldiers at the end of 

their service. See supra at 24–26. And while various temporary medical and administrative 

exemptions advance distinct interests—including by avoiding medical harm to individuals—the 

religious accommodations that Plaintiffs seek are different in kind. Thus, the Army’s distinction 

between exemptions that promote force readiness and the health and wellbeing of service members 

and accommodations that would undermine those same interests is entirely rational and provides 

no occasion for the application of strict scrutiny. 

Even assuming the military context was not relevant, strict scrutiny would still be 

inapplicable under a constitutional analysis because the vaccine requirement is neutral and 

generally applicable. See Kaemmerling, 553 F.3d at 677. It applies to all service members; its 

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“terms . . . do not make any reference to religion,” Dunn Op. at 44, A523; and it was expressly 

implemented in order to ensure “a healthy and ready force”—not to suppress religious belief, Sec’y 

of Def. Mem. (Aug. 24, 2021), https://perma.cc/N759-S758; see also Dunn Op. at 43–44, A522–

23 (finding Air Force’s vaccine requirement generally applicable and subject to rational basis 

review); Trump, 138 S. Ct. at 2420 (“On the few occasions where” the Supreme Court has struck 

down a law under rational basis scrutiny, “a common thread has been that the laws at issue lack 

any purpose other than a ‘bare . . . desire to harm a politically unpopular group.’”) (citation 

omitted); We The Patriots, 17 F.4th at 281 (concluding that New York’s vaccine requirement for 

healthcare workers was facially neutral “because it does not single out employees who decline 

vaccination on religious grounds” and it “applies to all ‘personnel’”); Doe, 19 F.4th at 1177 

(similar, regarding school district’s student vaccination requirement). Plaintiffs cannot show that 

the Army’s vaccine requirement “lack[s] any purpose other than a bare desire to harm” any set of 

religious beliefs so as to trigger a higher level of scrutiny. Trump, 138 S. Ct. at 2420 (cleaned up). 

Also, contrary to Plaintiffs’ assertion, the Army’s allowance of exemptions does not trigger 

strict scrutiny. See P l s.’ Br. at 18–19. Plaintiffs cite Tandon v. Newsom, 141 S. Ct. 1294 and

Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), but those cases are unavailing. First, both 

of these cases arose in the civilian context and do not implicate the principles of Goldman, as 

explained supra. Second, Plaintiffs misunderstand the underlying principle of these cases. The 

opinion in Fulton, which expands on the analysis of Tandon, is premised on the notion that “[a] 

law is not generally applicable if it ‘invite[s]’ the government to consider the particular reasons 

for a person’s conduct by providing ‘a mechanism for individualized exemptions.’” Fulton, 141 

S. Ct. at 1877 (quoting Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 884 (1990)). 

But “an exemption is not individualized simply because it contain[s] express exceptions for 

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objectively defined categories of persons.” 303 Creative LLC v. Elenis, 6 F.4th 1160, 1187 (10th 

Cir. 2021) (citation omitted), cert. granted in part, 142 S. Ct. 1106 (2022); see also Kane v. De 

Blasio, 19 F.4th 152, 165 (2d Cir. 2021) (citing We The Patriots, 17 F.4th at 288)); Lighthouse 

Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 276 (3d Cir. 2007) (same). It is 

“not the mere existence of an exemption procedure” that triggers strict scrutiny, but rather the 

existence of a generalized, discretionary exemption procedure that allows the government to 

determine that the mere “religious motivation of [a requestor’s] conduct[] justified the 

unavailability of an exemption.” Lighthouse Inst. for Evangelism, Inc., 510 F.3d at 276. Put another 

way, in order to trigger strict scrutiny, “there must be some showing that the exemption procedures 

allow secularly motivated conduct to be favored over religiously motivated conduct.” Kane, 19 

F.4th at 165. 

Thus, the single “‘good cause’ standard” in Fulton triggered strict scrutiny because 

it“‘invit[ed]’ the government to decide which reasons for not complying with the policy are worthy 

of solicitude.” 141 S. Ct. at 1877, 1879 (citation omitted). In contrast, here, Plaintiffs make no 

showing that the religious accommodation procedures allow secularly motivated conduct to be 

favored over religiously motivated conduct. Contrary to Plaintiffs’ assertion that the mandate 

prohibits only religious conduct and treats secular conduct more favorably, Pls.’ Br. at 18-19, the 

mandate in fact applies with equal force to all service members. The exceptions for medical 

exemptions and administrative exemptions are not comparable to religious accommodations and 

do not treat soldiers more favorably, as discussed. See supra at 24–26. Medical exemptions are 

designed to ensure service members remain fit for duty; indeed, vaccinating a service member 

“who is known or expected to be injured by the vaccine would harm her health.” see We The 

Patriots, 17 F.4th at 285. Maintaining the health of the force is the very interest served by the 

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Defendants’ vaccination program. A religious exemption does not even purport to serve that 

interest. See Does 1–6, 16 F.4th at 31 (“[P]roviding healthcare workers with medically 

contraindicated vaccines would threaten the health of those workers and thus compromise both 

their own health and their ability to provide care.”). And medical exemptions are also not 

comparable to religious exemptions requests because the latter significantly eclipse the former, 

and would in contrast result in permanent exemptions to serve without regard to vaccination 

statute, thus causing far greater risk and harm to the military’s interests. See Mark Short, 2022 WL 

1051852, at *8 (“[E]vidence of a small number of medical exemptions relative to a much larger 

amount of religious exemption requests ‘suggests that the medical exemption is not as harmful to 

the legitimate government interests purportedly justifying the Rule as a religious exemption would 

be.’”) (quoting We The Patriots, 17 F.4th at 286); We The Patriots, 17 F.4th at 286; Doe, 19 F.4th 

at 1178. 

II. PLAINTIFFS ARE UNLIKELY TO SUFFER IRREPARABLE HARM 

ABSENT PRELIMINARY RELIEF. 

Plaintiffs give short shrift to the other preliminary injunction elements. However, the Fifth 

Circuit “has repeatedly cautioned that ‘a preliminary injunction is an extraordinary remedy which 

should not be granted unless the party seeking it has clearly carried the burden of persuasion on 

all four requirements.’” Voting for America, Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013) 

(citations omitted). 

 Although Plaintiffs make passing reference to disciplinary actions they may face for failing 

to follow vaccination orders, Pls.’ Br. at 5, they neither rely on these allegations in their argument 

nor can such adverse employment actions, which are inherently reparable, satisfy this prong of the 

analysis. See, e.g., U.S. Navy SEALs, 578 F. Supp. 3d at 839 (explaining that adverse employment 

actions are not irreparable because “[n]o matter how remote the possibility, Plaintiffs could be 

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compensated for their losses.”). Instead, Plaintiffs contend that alleged infringement of their 

constitutional and statutory religious liberties is sufficient to satisfy this prong of the preliminary 

injunction analysis. Pls.’ Br. at 19-20. 

First, as shown, Plaintiffs have not demonstrated that Defendants’ challenged actions 

implicate their constitutional or statutory rights, let alone imminently threaten them, Elrod v. 

Burns, 427 U.S. 347, 374 (1976); see also, e.g., Archdiocese of Wash. v. Wash. Metro. Area Transit 

Auth., 897 F.3d 314, 334 (D.C. Cir. 2018) (explaining that, to show irreparable harm based on loss 

of constitutional rights, a movant must show likely success on the merits), cert. denied, 140 S. Ct. 

1198 (2020); Mark Short, 2022 WL 1051852, at *9; Bellinger v. Bowser, 288 F. Supp. 3d 71, 88–

89 (D.D.C 2017); Thomas Short, 2022 WL 1203876, at *7–8. A preliminary injunction is 

inappropriate “unless the party seeking it can demonstrate that ‘[constitutional] interests are either 

threatened or in fact being impaired at the time relief is sought.’” Google, Inc. v. Hood, 822 F.3d 

212, 227–28 (5th Cir. 2016) (citation omitted). 

Second, even if Plaintiffs could show likely success on the merits of their claims, the 

irreparable-harm requirement is not excised any time a plaintiff asserts a colorable constitutional 

claim. The mere “invocation of the [Constitution] cannot substitute for” a plaintiff’s obligation to 

show “the presence of an imminent, non-speculative irreparable injury” that will occur absent 

preliminary relief. Id. at 228. Beyond the mere circular invocation of their merits arguments, 

Plaintiffs fail to show any actual irreparable injury would result if preliminary relief is denied. 

Finally, even if Plaintiffs could show that they were harmed, as they allege, by the “crisis 

of conscience” created by their choice between following their vaccine orders and following their 

religious convictions, this harm cannot justify the extraordinary relief of a preliminary injunction. 

Preliminary injunctive relief is inherently temporary and forward-looking. See, e.g., City of Austin 

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v. Kinder Morgan Tex. Pipeline, LLC, 447 F. Supp. 3d 558, 569 (W.D. Tex. 2020) (“Injunctions 

are forward-looking remedies that may issue ‘only if future injury is certainly impending.’” 

(citation omitted)). Accepting Plaintiffs’ allegations as true, they had a choice between exercising 

their religious convictions and facing inherently reparable employment consequences. All ten 

Plaintiffs chose to refuse vaccination and there is no threat of involuntary vaccination. There is 

thus no imminent or irreparable harm to Plaintiffs’ rights under the First Amendment and RFRA, 

nor is there any reason to expect such harm during the pendency of this case. Plaintiffs are all 

currently exercising their religious convictions, and any alleged material harms they might face 

could be made whole at the end of the litigation. See, e.g., Together Empls. v. Mass. Gen. Brigham 

Inc., 19 F.4th 1, 8 (1st Cir. 2021) (“Moreover, as the deadline for being vaccinated has passed, the 

appellants cannot point to an ‘impossible choice’ as a special factor [in support of injunction] here; 

they have already made their choices.”); cf. Halczenko v. Ascension Health, Inc., 37 F.4th 1321, 

1326 (7th Cir. 2022) (finding injunctive relief unwarranted for an employee who had already been 

fired for refusing vaccination). 

III. THE EQUITIES AND PUBLIC INTEREST WEIGH AGAINST A 

PRELIMINARY INJUNCTION. 

The third and fourth requirements for issuance of a preliminary injunction—the balance of 

harms and whether the requested injunction will disserve the public interest— “merge when the 

Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). The burden 

nevertheless remains on Plaintiffs as the moving party to prove these elements. 

Plaintiffs do not even attempt to engage with the Government’s side of this analysis, 

waving away Defendants’ harms as “any theoretical harm the injunction could cause to the 

Government” and quoting without any analysis generic statements that the overall dangers of the 

pandemic, which have fluctuated wildly for more than two years, are lessening. Pls.’ Br. 20-21. 

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Plaintiffs also appear to be asserting without any support that providing medical, administrative, 

and religious exemptions, as well as generally maintaining operations during the COVID 

pandemic, does not create or contribute to any logistical or other harms for the Army. See id.

Plaintiffs’ arguments in support of their own side of this analysis are limited to baldly asserting 

that their alleged loss of religious liberty is a greater harm and that any attempt to vindicate 

constitutional rights inherently turns the public interest in their favor. As explained supra at 35–

37, Plaintiffs are not in fact facing any irreparable harms during the pendency of this case, and 

therefore they have nothing to balance against the harm a preliminary injunction would impose on 

Defendants or the public’s interest in proper administration of the Army. 

Conversely, a preliminary injunction will impose significant harm on Defendants and will 

disserve the public interest. The public has an exceptionally strong interest in national defense, see 

Winter, 555 U.S. at 24–26, and the military has a compelling interest in requiring its forces to be 

vaccinated, healthy, and ready to accomplish any and every military mission, see North Dakota v. 

United States, 495 U.S. 423, 443 (1990); Navy SEALs 1–26, 142 S. Ct. at 1302 (Kavanaugh, J., 

concurring). An injunction allowing Plaintiffs to continue serving without being vaccinated against 

COVID-19 would threaten harm not only to Plaintiffs but would also compromise their units’ 

collective abilities to execute their military and intelligence duties, maintain their necessary 

readiness, and accomplish their missions. The allegedly “less restrictive means” proposed by 

Plaintiffs to accommodate their refusal to be vaccinated, Pls.’ Br. 8–9, are either ineffective in 

protecting individual and unit health or highly disruptive to readiness. See supra at 28–31. The 

Army’s judgment that it cannot accept avoidable risk to the health and readiness of its fighting 

forces serves the public interest, outweighs any interests Plaintiffs may have in premature 

preliminary relief, and deserves this Court’s deference. See, e.g., Navy SEAL 1, 2022 WL 1294486, 

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at *16–17; Church, 573 F. Supp. 3d at 146–48. 

Moreover, the national defense depends on service members’ compliance with lawful 

orders. Chappell v. Wallace, 462 U.S. 296, 300 (1983). No military can successfully function where 

members feel free to define the terms of their own service and which orders they will choose to 

follow. Plaintiffs’ requested injunction would interfere with the military’s discretion to handle 

matters of order and discipline, to the detriment of effectiveness and trust between commander and 

subordinate. Orloff v. Willoughby, 345 U.S. 83, 94-5 (1953). 

IV. ANY INJUNCTION MUST BE TAILORED TO PLAINTIFFS. 

If the Court were to conclude that preliminary injunctive relief were warranted (which it 

should not, for the reasons explained above), at the very least it must reject Plaintiffs’ demand to 

preliminarily enjoin Defendants from taking various actions against Plaintiffs and “those similarly 

situated” for failure to take a COVID-19 vaccination. ECF No. 29 at 1. The law is clear that any 

injunctive relief should be no broader than necessary to provide relief to the plaintiffs before the 

Court. See Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (“A plaintiff’s remedy must be tailored 

to redress the plaintiff’s particular injury.”); see also Trump, 138 S. Ct. at 2425 (Thomas, J., 

concurring) (explaining the harm of nationwide injunctions). This is particularly true in the context 

of RFRA claims, which by their nature require an individualized analysis “to the person” claiming 

a religious burden. 42 U.S.C. § 2000bb-1(b). Indeed, the Fifth Circuit and the Supreme Court have 

emphasized that RFRA claims “contemplate an inquiry more focused than [a] categorical 

approach.” Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006); 

Tagore v. United States, 735 F.3d 324, 331 (5th Cir. 2013) (“A ‘categorical approach’ is 

insufficient.”). A court must “scrutiniz[e] the asserted harm of granting specific exemptions to 

particular religious claimants,” looking to “the marginal interest” in enforcing a policy against a 

particular person. Burwell, 573 U.S. at 726-27 (2014) (quotations omitted). Plaintiffs’ request for 

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a broad injunction restraining the Army’s actions as to all those deemed “similarly situated” (with 

no specific definition of that term) is therefore overly broad. ECF No. 29, at 4. 

While it is true that Plaintiffs’ complaint alleges a putative class, Plaintiffs have neither 

moved to certify a class nor provided any evidence or argument in support of class certification or 

class relief, including in their memorandum in support of their motion for preliminary injunction. 

See generally, Fed R. Civ. P. 23; Pls.’ Br. “The party seeking certification bears the burden of 

establishing that all requirements of Rule 23 have been satisfied,” and the district court is 

“require[d] . . . to conduct a rigorous analysis of Rule 23 prerequisites.” Unger v. Amedisys Inc., 

401 F.3d 316, 320 (5th Cir. 2005). Because Plaintiffs have established no basis whatsoever for 

class relief, any relief considered or granted must be limited to the individual named plaintiffs. 

CONCLUSION 

The motion for a preliminary injunction should be denied. 

Dated: November 8, 2022 Respectfully submitted, 

BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General 

ALEXANDER K. HAAS 

Branch Director 

ANTHONY J. COPPOLINO 

Deputy Branch Director 

 /s/ Johnny Walker 

KERI BERMAN 

JOHNNY H. WALKER (D.C. Bar #991325) 

Trial Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street NW, Rm. 12304 

Washington, D.C. 20530 

Tel.: (202) 514-3183 / Fax: (202) 616-8460 

Email: johnny.h.walker@usdoj.gov 

Counsel for Defendants

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