1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

ROBERT SCHELSKE, HUNTLEY W. 

BAKICH, ZAKAI BUFKIN, SAMUEL L. 

CONKLIN, JOSHUA J. COSTROFF, 

SAMUEL GALLOWAY, DOMINIC O. 

MELL, COLLIN M. MORRISON, 

NICHOLAS SABALLA, PETER TESTA, 

on behalf of themselves and all others similarly 

situated,

Plaintiffs,

v.

LLOYD J. AUSTIN, III, in his official 

capacity as United States Secretary of Defense;

CHRISTINE WORMUTH, in her official 

capacity as Secretary of the Army; YVETTE 

K. BOURCICOT, in her official capacity as

Acting Assistant Secretary of the Army

(Manpower and Reserve Affairs);

RAYMOND S. DINGLE, in his official

capacity as The Surgeon General and

Commanding General, USA Medical

Command; and UNITED STATES OF

AMERICA,

Defendants.

Case No.

PLAINTIFFS’ VERIFIED 

CLASS ACTION COMPLAINT 

FOR DECLARATORY 

JUDGMENT AND INJUNCTIVE 

RELIEF

PLAINTIFFS’ VERIFIED CLASS ACTION COMPLAINT FOR DECLARATORY

JUDGMENT AND INJUNCTIVE RELIEF

Plaintiffs, through Counsel, for themselves and other similarly situated, state for their 

Verified Complaint as follows:

INTRODUCTION

1. This action involves the systematic effort of Lloyd J. Austin III, Christine

Wormuth, Yvette K. Bourcicot, and Raymond S. Dingle, and those who report to them,

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(collectively, “Defendants” or “Army”) to violate federal law and the United States 

Constitution, specifically the Religious Freedom and Restoration Act, 42 U.S.C. § 2000bb 

through 42 U.S.C. § 2000bb-4 (“RFRA”), and the First Amendment’s Free Exercise Clause, in 

a concerted and deliberate circumvention of the religious rights of members of the United States 

Army. All Plaintiffs have documented and confirmed sincerely held religious beliefs 

concerning Defendants’ COVID-19 vaccination requirement. They all seek temporary religious 

accommodations from the COVID-19 vaccination requirement (“Vaccine Mandate”), but none 

of them have had their requests granted.

1 As a result, now they face irreparable harm and, in 

several cases, imminent irreparable harm.

2. All Plaintiffs have had their accommodation requests processed by and through 

their chain of command. As part of that process, each of them was interviewed at least once by 

an Army Chaplain who confirmed the sincerity of each Plaintiffs’ beliefs and the substantial 

burden being placed upon each Plaintiff to comply with Defendants’ Vaccine Mandate. In each 

case, that Chaplain recommended approval of the religious accommodation.

3. On a routine basis, the Army has failed to approve all but a few of the temporary 

religious accommodation requests, and those were only for end-of-service personnel who will 

soon be exiting the service. At the same time, the Army has approved thousands of temporary

exemptions to the same mandate, but for secular reasons.

2

4. Plaintiffs challenge the policies and actions detailed below on their face and as 

1 Army Command Policy, Army Regulation 600-20, Para. 5-6 f. (1). “Approved accommodations pertaining to worship 

practices, dietary practices, medical care, and modesty concerns are temporary and subject to modification or 

revocation by immediate commanders in accordance with the provisions of para 5–6 a. (4).”

2 As of September 1, 2022, the Department of the Army has only approved 32 active Army requests for religious 

accommodation, while approving 2,499 active-duty accommodations. Department of the Army Updates Total Army 

COVID-19 Vaccination Statistics, 

https://www.army.mil/article/259919/department_of_the_army_updates_total_army_covid_19_vaccination_statistic

s (last visited Sept. 13, 2022). 

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applied to Plaintiffs.

5. Defendants’ policies and actions have deprived and will continue to deprive

Plaintiffs of their paramount rights and guarantees under the United States Constitution and 

federal law.

6. Defendants committed each act alleged herein under the color of law and 

authority.

JURISDICTION AND VENUE

7. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because

this action arises under the United States Constitution and federal law.

8. TheCourt also hasjurisdiction under 28 U.S.C. § 1346 because thisis a civil action 

against the United States.

9. The Court also has jurisdiction under 28 U.S.C. § 1361 to compel an officer or 

employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

10. The Court also has jurisdiction pursuant to 42 U.S.C. § 2000bb-1(c) because 

Plaintiffs’ religious exercise has been burdened by Defendants.

11. Venue is proper in this district under the provisions of 28 U.S.C. § 1402 and 

28 U.S.C. § 1391(e) as at least one Plaintiff resides in this judicial district. 

PLAINTIFFS

12. Plaintiff Huntley Bakich, Jr. is a First Lieutenant on active duty in the Army and 

is currently assigned at Fort Bliss, Texas. Lieutenant Bakich submitted his religious 

accommodation request to the Vaccine Mandate on September 20, 2021, documenting his 

objections to the use of fetal cell lines in any part of the COVID-19 vaccine process. Army 

Chaplain Adam Cavalier confirmed that Lieutenant Bakich’s religious beliefs were sincere and 

that requiring him to receive the COVID-19 vaccine would place an undue and substantial burden 

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on his ability to practice his religion. On October 11, 2021, Lieutenant Bakich’s Commander 

recommended approval of his request for religious accommodation. Eleven months later, 

Lieutenant Bakich’s request for religious accommodation was denied on August 3, 2022 by 

Lieutenant General Raymond S. Dingle, the Surgeon General of the Army. Lieutenant Bakich 

appealed that denial on August 16, 2022 to the Assistant Secretary of the Army for Manpower and 

Reserve Affairs (“ASA/MR”). While waiting for his religious accommodation to be acted on, 

Lieutenant Bakich has successfully finished his time as the most qualified tank platoon leader in 

his company and has taken command of a Scout Platoon. Since taking command of the Scout 

Platoon, he successfully redeployed his platoon from Korea and prepared his platoon for a return 

to the National Training Center and a follow-on deployment. The mission has continued to be 

accomplished despite his unvaccinated status, and no mission has failed or in any way impaired 

due to that reason. However, because of Defendants’ desire to punish Lieutenant Bakich for his 

sincerely held religious beliefs, his career progression has been halted. He is now behind his peers 

and unable to attend the Maneuver Captain’s Career Course (MCCC) while he waits final decision 

on his request for religious accommodation. This course is a requirement for him to continue with 

his military career. Without the MCCC, his career is stuck in limbo, and he is prevented from 

promotion, moving to a different post, or doing an interpose transfer. The delay in processing his 

request for religious accommodation is deliberate and is intentionally being used to coerce him 

into violating his sincerely held religious beliefs. He waited close to a year for his initial denial, 

but his final denial could occur any day, at which point he will be further coerced with the prospect 

of a court-martial or life-altering punitive separation and a negatively characterized discharge. 

13. Plaintiff Zakai Bufkin is a Cadet First Class (Senior) at the United States Military 

Academy (“USMA” or “West Point”). Cadet Bufkin submitted his religious accommodation 

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request on August 1, 2021, documenting his objections to the use of fetal cell lines in any part 

of the COVID-19 vaccine process. Army Chaplain Jose M. Rondon confirmed that his religious 

beliefs were sincere, as well as substantially burdened by the Vaccine Mandate. Cadet Bufkin’s 

request for religious accommodation was denied on December 10, 2021 by Lieutenant General 

Raymond S. Dingle. He appealed that denial on December 17, 2021. While awaiting his final 

denial, the mission at USMA was unaffected and was not in any way impaired. However, Cadet 

Bufkin’s mental health began to deteriorate, however, as he was subjected to coercion and 

discrimination because of his unvaccinated status. On August 10, 2022, his appeal was denied 

by the Acting ASA/MR Secretary Yvette K. Bourcicot. Prior to that denial, Cadet Bufkin was 

placed on an indefinite administrative leave of absence for not receiving the COVID-19 vaccine. 

This leave is without pay and without benefits. He also had to pay for all his travel expenses 

home. Cadet Bufkin currently sits at home waiting for his impending punishment—the 

forthcoming General Officer Memorandum of Reprimand (“GOMOR”) and misconduct board

that is certain to lead to his expulsion and removal from the Army—because, as a matter of 

conscience and sincerely held religious beliefs, he cannot comply with Defendants’ Vaccine 

Mandate. Cadet Bufkin has natural immunity to COVID-19. 

14. Plaintiff Samuel L. Conklin is a Cadet Corporal (Sophomore) at the USMA. 

Cadet Conklin submitted his religious accommodation request on October 1, 2021, documenting 

his objections to the use of fetal cell lines in any part of the COVID-19 vaccine process. Army 

Chaplain Jeffrey Tilden confirmed that Cadet Conklin’s religious beliefs were sincere and 

substantially burdened by the Vaccine Mandate. Cadet Conklin’s request for religious 

accommodation was denied on December 15, 2021 by Lieutenant General Raymond S. Dingle. 

He appealed that denial on December 21, 2021, but that appeal was denied on August 10, 2022 

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by the Acting ASA/MR Yvette K. Bourcicot. Since the start of the pandemic, Cadet Conklin 

has attended and completed all academic classes, completed summer training for his freshman 

and sophomore year, and completed all required physical testing without a single mission failure 

or impairment due to his unvaccinated status. Cadet Conklin has natural immunity to COVID19.

15. Plaintiff Joshua Costroff is a Staff Sergeant in the Army and is currently stationed 

at Goodfellow Air Force Base in San Angelo, Texas, in this District and Division. Sergeant 

Costroff submitted his religious accommodation request on September 30, 2021, documenting his 

objections to the use of fetal cell lines in any part of the COVID-19 vaccine process. An Army 

Chaplain confirmed that Sergeant Costroff’s religious beliefs were sincere and substantially 

burdened by the Vaccine Mandate, and recommended approval of his religious accommodation 

request. Prior to his initial denial, his Company Commander and his Battalion Commander 

recommended approval of his religious accommodation request. Sergeant Costroff’s request for 

religious accommodation was denied by Lieutenant General Raymond S. Dingle on April 14, 

2022. He appealed that denial on April 21, 2022. On September 8, 2022, Sergeant Costroff’s 

appeal was denied by the Acting ASA/MR Yvette K. Bourcicot. While waiting for the decision 

on his religious accommodation request, he has been unable to attend career advancing schools 

including one that is mandatory for promotion. He has been treated like a soldier who has 

disobeyed a direct order during this entire process and has been denied temporary duty (TDY) 

opportunities and favorable actions for over a year now. Since the start of the pandemic, he has 

trained and mentored nearly 500 students and his unvaccinated status has not had any impact on 

the mission. Plaintiff Costroff has natural immunity to COVID-19.

16. Plaintiff Samuel Galloway is a Staff Sergeant in the Army and is currently 

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stationed at Caserma Del Din, Italy. Sergeant Galloway submitted his religious accommodation 

request on August 14, 2021, documenting his objections to the use of fetal cell lines in any part 

of the COVID-19 vaccine process and his belief that his body belongs to God and is the temple 

of the Holy Spirit. Army Chaplain Vernon G. Snyder IV confirmed that Sergeant Galloway’s 

religious beliefs were sincere as well as substantially burdened by the Vaccine Mandate, and 

recommended approval of his religious accommodation request. On January 12, 2022, Plaintiff 

Galloway’s request for religious accommodation was denied by Lieutenant General Raymond 

S. Dingle. Sergeant Galloway appealed that denial on January 31, 2022. While awaiting a 

decision on his final appeal, Sergeant Galloway was ordered by his command to report to the 

behavioral health clinic for a command directed behavioral health appointment on June 3, 2022. 

Sergeant Galloway was told by his command that “[t]his is a mandatory process for anyone who 

submitted a religious accommodation request” and “a requirement for anyone who is being 

involuntarily separated.” The command then noted that “I completely understand that [Sergeant 

Galloway’s] appeal is still pending but the direction from the BDE (Brigade) Commander is that 

we still complete all separation prerequisites (TAP, physical health assessment, etc.) so this is 

one of those appointments. It isn’t personal.” Sergeant Galloway still has not received a 

response to his appeal submitted over seven months ago but has been required to complete outprocessing procedures in the apparent certainty of his appeal being denied. From March 2020 

through August 2021, his unit, and those in his career field with similar duties, were able to 

perform their duties and accomplish mission objectives, notwithstanding the lack of a vaccine 

for COVID-19 during much of that time or the occurrence of COVID-19 generally in the 

community and in the Army. Sergeant Galloway’s unit was able to deploy and operate in 

forward locations and accomplish their mission notwithstanding COVID-19. Sergeant 

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Galloway has natural immunity to COVID-19.

17. Plaintiff Dominic O. Mell is a Cadet Sergeant (Junior) at the USMA. Cadet Mell

submitted his religious accommodation request on October 2, 2021, documenting his objections 

to the use of fetal cell lines in any part of the COVID-19 vaccine process. An Army chaplain 

confirmed that Cadet Mell’s religious beliefs were sincere and substantially burdened by the 

Vaccine Mandate. Cadet Mell’s request for religious accommodation was denied on December 

13, 2021 by Lieutenant General Raymond S. Dingle. Cadet Mell appealed that denial on 

December 19, 2021, and his appeal was denied on August 10, 2022 by the Acting ASA/MR

Yvette K. Bourcicot. On August 12, 2022, Cadet Mell received a GOMOR. Cadet Mell 

submitted rebuttal letters to the GOMOR on August 19, 2022. On August 29, 2022, the 

GOMOR was permanently filed in his Army Military Human Resource Record by Brigadier 

General Mark C. Quander. That same day, Cadet Mell was notified that he was under 

investigation for alleged misconduct for his failure to comply with the Vaccine Mandate. That 

board convened on September 21, 2022 and found that he had violated Article 90 of the Uniform 

Code of Military Justice (not following an order to vaccinate given to him by failing to get the 

currently available COVID-19 vaccines against his sincerely held religious beliefs). The board 

of officers recommended that he be separated from West Point with an Honorable Discharge 

due to his sincerely held Catholic beliefs and the determination that his faith requires him not to

comply with the Vaccine Mandate. His separation is imminent. During that same board, the 

United Stated Corps of Cadets Senior Medical Officer, Colonel Laura K. Dawson admitted 

under oath that no West point Cadet had ever been hospitalized because of COVID. Cadet Mell 

has natural immunity to COVID-19.

18. Plaintiff Collin M. Morrison is a Cadet Corporal (Sophomore) at the USMA. 

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Cadet Morrison submitted his religious accommodation request on November 19, 2021, 

documenting his objections to the use of fetal cell lines in any part of the COVID-19 vaccine 

process. Army Chaplain Jose M. Rondon confirmed that Cadet Morrison’s religious beliefs 

were sincere and substantially burdened by the Vaccine Mandate. Cadet Morrison’s request for 

religious accommodation was denied on December 20, 2021 by Lieutenant General Raymond 

S. Dingle. Cadet Morrison appealed that denial on January 1, 2022, and his appeal was denied 

on August 10, 2022 by the Acting ASA/MR Yvette K. Bourcicot. Cadet Morrison has been 

ostracized by West Point leadership and his command, and now faces punitive measures and 

separation. While awaiting a decision on his religious accommodation, Cadet Morrison has 

been forced to eat by himself and has been singled out for harassment by leadership attempting 

to coerce him into violating his sincerely held religious beliefs to comply with the Vaccine 

Mandate. He was permitted, however, to participate in most activities with a mask and 

performed extremely well during those times with no mission failure occurring due to his 

unvaccinated status. Morrison also has natural immunity to COVID-19.

19. Plaintiff Nicholas Saballa is a Cadet Corporal (Sophomore) at the USMA. Cadet 

Saballa submitted his religious accommodation request on December 1, 2021, documenting his 

objections to the use of fetal cell lines in any part of the COVID-19 vaccine process and his 

belief that his body is sacred. An Army chaplain confirmed that his religious beliefs were 

sincere and substantially burdened by the Vaccine Mandate. Cadet Saballa’s request for 

religious accommodation was denied on December 15, 2021 by Lieutenant General Raymond 

S. Dingle. Cadet Saballa appealed that denial on December 21, 2021, and his appeal was denied 

on August 10, 2022 by the Acting ASA/MR Yvette K. Bourcicot. After receiving his final 

denial and the renewed order to get the COVID-19 vaccination, Cadet Saballa was informed 

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that he will receive a GOMOR and that he will be separated from West Point. Although he is 

not currently active in any activities, no mission at USMA has failed or been impaired due to 

his unvaccinated status. Cadet Saballa also has natural immunity to COVID-19.

20. Plaintiff Robert Schelske is a Staff Sergeant in the Army and is currently 

stationed at Goodfellow Air Force Base in San Angelo, Texas, in this District and Division. 

Sergeant Schelske submitted his religious accommodation request on September 14, 2021, 

documenting his objections to the use of fetal cell lines in any part of the COVID-19 vaccine 

process. An Army Chaplain confirmed that Sergeant Schelske’s religious beliefs were sincere 

and substantially burdened by the Vaccine Mandate and recommended approval of his religious 

accommodation request. Prior to the initial denial, both Sergeant Schelske’s Company 

Commander and his Battalion Commander recommended approval of his religious 

accommodation request. However, Sergeant Schelske’s request for religious accommodation 

was denied by Lieutenant General Raymond S. Dingle on February 1, 2022. Sergeant Schelske

appealed that denial on February 13, 2022. On August 10, 2022, his appeal was denied by 

Acting ASA/MR Yvette K. Bourcicot. Since the beginning of the pandemic, Sergeant Schelske 

has served in the role of interim First Sergeant, being selected for this position over other higher 

ranking non-commissioned officers (“NCO”). He was also selected to serve as the NCO in 

charge of the course that he currently instructs and has instructed over 1500 hours since the 

pandemic began. Despite his unvaccinated status, the mission has continued, and no mission in 

his command has failed or been impaired. Sergeant Schelske has natural immunity to COVID19.

21. Plaintiff Peter Testa is a Staff Sergeant in the Army and is currently stationed at

Fort Bliss, Texas. Sergeant Testa submitted his religious accommodation request on September 

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23, 2021, documenting his objections to the use of fetal cell lines in any part of the COVID-19 

vaccine process. Chaplain Adam G. Cavalier confirmed that Sergeant Testa’s religious beliefs 

were sincere and substantially burdened by the Vaccine Mandate, and recommended approval 

of his religious accommodation request. On October 9, 2021, Sergeant Testa’s Commander 

recommended approval of his request for religious accommodation. Eleven months later, 

Sergeant Testa’s request for religious accommodation was denied by Lieutenant General 

Raymond S. Dingle on August 15, 2022. Sergeant Testa appealed that denial on August 20, 

2022 and anticipates denial of the appeal any day, with punitive measures and separation to 

follow. Since submitting his request for religious accommodation, Sergeant Testa’s career 

progression has been halted, and he is now behind his peers as he is unable to attend the Senior 

Leaders Course in Fort Benning, Georgia, which he needs to attend in order to be promoted. 

Without the course, he is stuck in limbo—prevented not just from career advancement but even 

from moving to a different post or doing an interpose transfer to another unit. Despite Sergeant 

Testa’s unvaccinated status, the mission has continued, and no mission in his command has 

failed or been impaired.

DEFENDANTS

22. Defendant Lloyd J. Austin, III is the United States Secretary of Defense.

Secretary Austin issued a memorandum on August 24, 2021 requiring the United States Armed

Forces to vaccinate all service members, including Plaintiffs. Secretary Austin also ensured that 

his directive was followed through the implementation of various enforcement mechanisms. 

Secretary Austin is sued in his official capacity.

23. Defendant Christine Wormuth is the United States Secretary of the Army. 

Secretary Wormuth issued a directive on September 14, 2021, which required the Army to

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vaccinate all Army service members, including Plaintiffs, against COVID-19—the Vaccine 

Mandate. Secretary Wormuth also ensured that her directive was followed by implementing 

enforcement mechanisms. Secretary Wormuth is sued in her official capacity.

24. Defendant Yvette K. Bourcicot is the acting ASA/MR and is responsible for the 

denial of thousands of religious accommodations appeals as the final appellate authority for the 

Army. Assistant Secretary Bourcicot is sued in her official capacity.

25. Defendant Raymond S. Dingle is the Surgeon General and Commanding 

General, Army Medical Command and responsible for the initial denial of thousands of requests 

for religious accommodation from Army soldiers. Lieutenant General Dingle is sued in his 

official capacity.

26. Defendant United States of America, whose policies are requiring the United

States Armed Forces to vaccinate all service members contrary to federal and constitutional law, 

including Plaintiffs, by not providing religious accommodations. 

FACTUAL BACKGROUND

27. On August 24, 2021, Secretary Austin issued a memorandum titled “Mandatory 

Coronavirus Disease 2019 Vaccination of Department of Defense Service Members” (the “DoD 

Vaccine Mandate”).3 The DoD Vaccine Mandate directs DoD to vaccinate all active duty and 

reserve service members against COVID-19.

28. The DoD Vaccine Mandate states that the Military Departments, including the 

Army, should use existing policies and procedures to manage mandatory vaccination of service 

members to the extent practicable.

3 https://media.defense.gov/2021/Aug/25/2002838826/-1/-1/0/MEMORANDUM-FOR-MANDATORY-CORONA

VIRUS-DISEASE-2019-VACCINATION-OF-DEPARTMENT-OF-DEFENSE-SERVICE-MEMBERS.PDF (last 

visited Sept. 28, 2022).

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29. On September 14, 2021, Defendant Wormuth, Secretary of the Army, issued an 

order to members of the Army to be vaccinated for COVID-19.4

30. On November 16, 2021, Secretary Wormuth issued an order to punish soldiers 

who refuse to “become vaccinated against COVID-19.” 5 In that memorandum, Secretary

Wormuth ordered that those soldiers who refused to vaccinate against COVID-19 would be 

removed from receiving the following favorable actions: reenlistment, reassignment, promotion, 

appearance before promotion boards, receipt of awards and decorations, attendance at military 

or civilian schools, use of earned tuition assistance, receipt of enlistment bonuses or reenlistment 

bonuses, and assumption of command positions.

6 After the soldier is flagged, they will receive

a GOMOR.7

31. Secretary Wormuth issued subsequent guidance on January 31, 2022 establishing 

personnel actions for unvaccinated active, reserve, national guard soldiers, cadets at the USMA,

and Senior Reserve Officers’ Training Corps who refuse the COVID-19 vaccination order.

8

32. All Plaintiffs have sought religious exemptions from the Vaccine Mandate, as 

outlined in the following paragraphs, and pursuant to the federal RFRA (42 USC 2000bb) and 

its implementing regulations, including, without limitation, Department of Defense Instruction 

(“DoDI”) 1300.17.9

4 Army Announces Implementation of Mandatory Vaccines for Soldiers, Sept. 14, 2021, 

https://www.army.mil/article/250277/army_announces_implementation_of_mandatory_vaccines_for_soldiers (last 

visited Sept. 12, 2022). 

5 Flagging and Bars to Continued Service of Soldiers Who Refuse the COVID-19 Vaccination Order, Memorandum 

dated Nov. 16, 2021. Available at: 

https://www.govexec.com/media/secarmy_memo_flags_and_bars_vaccination_refusal.pdf

6

Id.

7

Id.

8 https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN34562-ARMY_DIR_2022-02-000-WEB-1.pdf (last visited

Sept 13, 2022).

9 https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/130017p.pdf (last visited Sept. 13, 2022)

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33. All Plaintiffs have received an order to receive a COVID-19 vaccination with 

threats of administrative action to include separation and/or punitive action if they fail to comply 

with the vaccination requirement. 

34. All Plaintiffs have documented and confirmed sincerely held religious beliefs 

from Defendants’ COVID-19 Vaccine Mandate. They all seek temporary religious 

accommodations from the COVID-19 vaccination requirement, but none of them have had their 

requests approved.

35. All but two of the Plaintiffs have contracted and recovered from COVID-19 and 

now have natural immunity to COVID-19.

The Army Employs an Unconstitutional Double Standard for Exemption 

Requests, Granting Thousands of Secular Requests While Denying all but a Few 

Religious Accommodation Requests

36. As of the date of this complaint, the Army has received over 10,000 requests for

religious accommodation from the Vaccine Mandate and has only approved 32 of those 

requests.

10

 In the meantime, the Army has currently granted close to 15,000 permanent and 

temporary secular exemption requests to that same Mandate.

11

(“Establishes DoD policy providing that an expression of sincerely held beliefs (conscience, moral principles, or 

religious beliefs) may not, in so far as practicable, be used as the basis of any adverse personnel action, discrimination, 

or denial of promotion, schooling, training, or assignment.”).

10 Department of the Army Updates Total Army COVID-19 Vaccination Statistics, 

https://www.army.mil/article/259919/department_of_the_army_updates_total_army_covid_19_vaccination_statistic

s (last visited Sept. 28, 2022).

11 Id.

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37. The granting of almost fifteen thousand secular waivers to the Vaccine Mandate

belies any claim that vaccination is a must for mission accomplishment, and this fact 

conclusively rebuts any stated compelling interest. Moreover, and upon information and belief, 

the 32 religious exemptions that have been approved were all granted to either end-of-service 

personnel or to those who otherwise qualify for a medical or administrative exemption anyway. 

Secretary Wormuth herself testified before the House Armed Services Committee on May 12, 

2022, that the vast majority, if not all, of the approved religious accommodation requests at that 

point were for those Soldiers who were in the process of leaving the Army.13

38. Defendants Austin, Wormuth, Bourcicot, and Dingle each failed to grant (or even 

meaningfully consider) thousands of well-founded religious accommodation requests, while 

processing and approving thousands of secular requests for accommodation that involve job 

duties similar in risk from a COVID-19 perspective; each of those denials being a violation of 

RFRA. Defendants have taken, continue to take, and threaten to take additional actions against 

12 Id.

13 Testimony of Secretary of the Army Christine Wormuth before the House Armed Services Committee on May 12, 

2022, https://armedservices.house.gov/hearings?ID=BC7D976E-87D8-47A4-B818-7711504FC4E9 .

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Plaintiffs, including the threat of punitive actions and involuntary separation from the Army

with a General Discharge.

39. It recently came to light that the Department of Defense (“DOD”) Acting 

Inspector General (“IG”), Mr. Sean W. O’Donnell, notified Defendant Austin in an official 

memorandum that he “found a trend of generalized assessments” when reviewing dozens of 

complaints regarding denied religious accommodation requests, “rather than the individualized 

assessment that is required by Federal law and DoD and Military Service policies.”14 The DOD 

IG further explained that “[t]he denial memorandums we reviewed generally did not reflect an 

individualized analysis, demonstrating that the Senior Military Official considered the full range 

of facts and circumstances relevant to the particular religious accommodation request.”15 The

IG’s review included a review of religious accommodation requests from all branches of the 

military, including the Army.

40. Plaintiffs are unable to comply with the order to receive the COVID-19 

vaccination because it violates their fundamental dictates of religion, even in the face of severe 

punishments under military law. 

Defendants Fail to Meet the Compelling Interest Standard and Fail to Provide 

any Accommodation to Plaintiffs as Required by RFRA

41. Dr. Deborah Birx revealed in her testimony before Congress on June 23, 2022 

that the COVID-19 vaccines do not prevent infection, do not prevent transmission, and do not 

14 Memorandum from Department of Defense Inspector General, Mr. Sean W. O’Donnell, to Secretary of Defense, 

Lloyd Austin, Subject: Denials of Religious Accommodation Requests Regarding Coronavirus Disease-2019 

Vaccination Exemptions, dated June 2, 2022. Available at https://s3.amazonaws.com/static.militarytimes.com/assets/

pdfs/1663774585.pdf

15 Id.

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prevent hospitalization,16 thereby undermining Defendants’ vaccine requirement and refuting 

any stated compelling interest. 

42. It is now known that natural immunity provides better protection against 

reinfection and death than those who have been vaccinated by the currently available 

vaccinations.17

43. In updated guidance published in August 2022, the CDC confirmed that those 

previously infected with COVID-19 have the same degree of protection against severe illness 

as those who have been vaccinated.

18

44. CDC findings reveal that 95% of Americans have natural immunity from 

COVID-19 (again, now known to be equivalent to vaccine-derived immunity),

19 and that recent 

prevalent COVID-19 strains are less lethal and serious than those prevalent in 2020 and 2021.

20

45. Further, the Commander in Chief has made public statements that the pandemic 

is over.21

16 Dr. Birx Says She Knew of Natural COVID-19 Reinfections as Early as December 2020, June 23, 2022, 

https://www.c-span.org/video/?c5021092/dr-birx-knew-natural-covid-19-reinfections-early-december-2020 (last 

visited September 13, 2022).

17 Previous infection provides equivalent or better immunity to being fully vaccinated and boosted, 

http://www.nejm.org/doi/full/10.1056/NEJMoa2203965/ (last visited September 18, 2022); see also CDC, COVID19 Cases and Hospitalizations by COVID-19 Diagnosis—California and New York, May–November 2021, 

https://www.cdc.gov/mmwr/volumes/71/wr/mm7104e1.htm?s_cid=mm7104e1_w (noting that “[b]y October [of 

2021], persons who survived a previous infection had lower case rates than persons who were vaccinated alone”).

18 Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health 

Care Systems — United States, August 2022, https://www.cdc.gov/mmwr/volumes/71/wr/mm7133e1.htm, (last visited

Aug. 11, 2022). “CDC’s COVID-19 prevention recommendations no longer differentiate based on a person’s 

vaccination status because breakthrough infections occur, though they are generally mild, and persons who have had 

COVID-19 but are not vaccinated have some degree of protection against severe illness from their previous infection.”

19 https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence (last visited 9/19/2022).

20 https://www.cdc.gov/mmwr/volumes/71/wr/mm7137a4.htm (last visited 9/29/2022).

21 https://www.cbsnews.com/news/president-joe-biden-60-minutes-interview-transcript-2022-09-18/ (last visited

9/29/2022).

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46. Among other less restrictive methods, the Army could accommodate Plaintiffs’ 

requests for accommodation by:

a. Requiring testing to determine infection;

b. Administering temperature checks and/or other screening to determine 

infection;

c. Permitting Plaintiffs to demonstrate they have robust and long-lasting 

natural immunity to count for compliance with the Vaccine Mandate;

d. Providing an exemption as vaccination will not guarantee immunity (and 

there are members who are currently serving who are not immune to 

diseases for which they were vaccinated, yet they remain able to serve and 

deploy);

e. Requiring isolation to keep Plaintiffs away from those with the disease;

f. Given the significant level of vaccine compliance within the military, 

accommodating the few numbers of religious exemption requests by 

providing an exemption (which they are already doing for other

exemptions), which is not a burden; and/or

g. Placing Plaintiffs in a position and/or Army MOS or rank that is available 

for remote work or telework, or not in contact with other soldiers;

h. As a final option, placing Plaintiffs in non-deployable status and/or

assignment to a unit that does not deploy overseas.

Injunctive Relief Allegations

47. Plaintiffs have had (and continue to have) their fundamental constitutional and 

statutory rights violated by these official capacity Defendants, each of whom is personally 

involved with the enforcement and/or threatened enforcement of the challenged orders. 

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Plaintiffs will be irreparably harmed if injunctive relief is not issued.

48. The public interest is served by the vindication of constitutional and statutory 

rights, and the weighing of harms warrants issuing injunctive relief. Because the scope of the 

violations extends to numerous other members of the Army who are similarly situated, Plaintiffs 

seek an injunction that similarly covers others similarly situated to remedy the violations at 

issue.

Class Action Allegations

49. Plaintiffs reincorporate the preceding paragraphs as if fully written herein.

50. The actions and violations outlined in this Complaint affect not only the Plaintiffs 

but also thousands of active, reserve, and Guard members similarly situated.

51. Pursuant to FRCP 23(a), (i) the class is so numerous that joinder of all members 

is impracticable (with thousands of potential plaintiffs); (ii) there are questions of law or fact 

common to the class (including identical claims and an identical policy of religious 

discrimination); (iii) the claims or defenses of the representative parties are typical of the claims 

or defenses of the class; and (iv) the representative parties will fairly and adequately protect the 

interests of the class.

52. Pursuant to FRCP 23(b): (i) prosecuting separate actions by or against individual 

class members would create a risk of: (A) inconsistent or varying adjudications with respect to 

individual class members that would establish incompatible standards of conduct for the party 

opposing the class; and (ii) the party opposing the class has acted or refused to act on grounds 

that apply generally to the class, so that final injunctive relief or corresponding declaratory relief 

is appropriate respecting the class as a whole.

53. Plaintiffs seek a Plaintiff class, consisting of those persons who: (i) submitted a 

religious accommodation request to the Army from the Army’s COVID-19 vaccination 

Case 6:22-cv-00049-H Document 1 Filed 10/03/22 Page 19 of 24 PageID 19
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requirement, where the request was submitted or was pending from August 1, 2021 to present;

(ii) were confirmed as having a sincerely held religious belief substantially burdened by the 

Army’s COVID-19 vaccination requirement by or through Army Chaplains; and (iii) either had 

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

FIRST CAUSE OF ACTION

Violation of Plaintiffs’ Rights under the Religious Freedom Restoration Act

42 U.S.C. § 2000bb et seq.

54. Plaintiffs reincorporate the foregoing as if fully written herein.

55. Pursuant to 42 U.S.C. 2000bb-1(a), “[i]n general Government shall not 

substantially burden a person’s exercise of religion even if the burden results from a rule of 

general applicability, except as provided in subsection (b).”

56. Pursuant to 42 U.S.C. 2000bb-1(b), “Exception. Government may substantially 

burden a person’s exercise of religion only if it demonstrates 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.”

57. Defendants have substantially burdened, and continue to substantially burden,

Plaintiffs’ exercise of religion by failing to grant religious accommodations and timely process

Plaintiffs’ accommodation requests (even though this is required by applicable regulation).

58. Defendants’ burden on Plaintiffs’ exercise of religion is not in furtherance of a 

compelling governmental interest, particularly given the Defendants’ serial granting of secular 

exemptions, and in light of recent findings about robust natural immunity present in the 

population (and most of these Plaintiffs) through natural immunity, as well as recent findings 

that vaccination does not stop the spread or transmission of the disease.

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59. Further, even if the government can assert a compelling governmental interest, 

the Vaccine Mandate is not the least restrictive means of furthering that interest, as evidenced 

by the Government itself granting significant numbers of secular exemptions from the same

mandate, and because less restrictive means—such as those set forth in Paragraph 44—exist.

60. Pursuant to 42 U.S.C. 2000bb-1(c), “[a] person whose religious exercise has been 

burdened in violation of this section may assert that violation as a claim or defense in a judicial 

proceeding and obtain appropriate relief against a government.”

61. Plaintiffs have no adequate remedy at law for the continuing deprivation of their 

most cherished constitutional liberties and sincerely held religious beliefs. 

62. Plaintiffs have suffered and continue to suffer irreparable harm as a direct result 

of Defendants’ policy and actions. 

63. Further, Plaintiffs seek injunctive relief to halt the ongoing violations of federal 

law and to obtain compliance by Defendants with same.

64. Further, Plaintiffs seek reasonable attorney fees and costs pursuant to 42 U.S.C. 

§ 1988(b) (providing that attorney fees and costs awards are available against the federal 

government and its officials pursuant to RFRA claims).

SECOND CAUSE OF ACTION

Violation of Plaintiffs’ First Amendment Right to the Free Exercise of Religion,

U.S. Const. Amend. I

65. Plaintiffs reincorporate the foregoing as if fully written herein.

66. The First Amendment of the Constitution protects the “free exercise” of religion.

Fundamental to this protection is the right to gather and worship. See W. Va. State Bd. of Educ. 

v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw 

certain subjects from the vicissitudes of political controversy, to place them beyond the reach of

majorities and officials and to establish them as legal principles to be applied by the courts . . .

Case 6:22-cv-00049-H Document 1 Filed 10/03/22 Page 21 of 24 PageID 21
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[such as the] freedom of worship and assembly.”). As the Supreme Court has noted, “a law 

burdening religious practice that is not neutral or not of general application must undergo the 

most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc.v. Hialeah, 508 U.S. 520, 

546 (1993). Because of the Army’s policy of granting secular exemptions to the Vaccine 

Mandate on a case-by-case basis, its refusal to grant religious accommodations on that same 

basis triggers strict scrutiny. Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021).

67. Defendants have violated and continue to violate the First Amendment’s Free

Exercise Clause, as described herein, and cannot meet strict scrutiny because they can neither 

establish a compelling governmental interest, nor narrow tailoring, given that they grant 

thousands of accommodations to the Vaccine Mandate for secular reasons while simultaneously 

refusing accommodations to those who request religious exemptions.

68. Plaintiffs have sincerely held religious beliefs that are substantially burdened by

the Vaccine Mandate. 

69. Plaintiffs have no adequate remedy at law for the continuing deprivation of their

most cherished constitutional liberties and sincerely held religious beliefs. 

70. Plaintiffs have suffered and continue to suffer irreparable harm as a direct result

of Defendants’ policy and actions. 

71. Plaintiffs thus seek declaratory and injunctive relief under 28 USC § 2201 and

28 USC § 2202 for these First Amendment violations as well as reasonable attorney fees

pursuant to 42 U.S.C. § 1988(b).

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court enter judgment against 

Defendants and provide Plaintiffs with the following relief:

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a. That this Court issue a declaration that the challenged actions are unconstitutional

and illegal under RFRA and/or the First Amendment, as applied to those

submitting accommodations, because Defendants’ illegal policy substantially

burdens Plaintiffs’ sincerely held religious beliefs when the Army does not have

a compelling interest in forcing immunization on Plaintiffs and less restrictive

means are available for accomplishing any legitimate goals;

b. That this Court certify a class;

c. That this Court issue preliminary injunctive relief precluding Defendants from

taking any further enforcement/punitive action against Plaintiffs, or others

similarly situated, during the pendency of this matter related to their request for a

religious accommodation from the Vaccine Mandate (unless Defendants rescind

their current no-religious accommodation policy);

d. That this Court direct appropriate final and preliminary injunctive relief to:

(i) prohibit retaliation for those seeking religious accommodations or participating

in this litigation; (ii) directing Defendants to cease and discontinue their religious 

discrimination and eradicate it root and branch; (iii) prohibit punitive measures 

from being taken against anyone who had their religious accommodation denied 

due to the discriminatory policy; and (iv) direct, in final relief, Defendants to reprocess the religious accommodations without the religious discrimination, and 

direct appropriate restorative relief including record correction to remove the 

effects or efforts of Defendants to enforce their discriminatory policy, including 

back pay if warranted, or other appropriate relief;

e. That this Court award Plaintiffs reasonable attorney fees, costs, and other costs

and disbursements in this action pursuant to 42 U.S.C. § 1988; and

f. All other further relief to which Plaintiffs may be entitled and that this Court 

shall deem just and proper.

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Dated: October 3, 2022 Respectfully submitted, 

Aaron Siri (PHV forthcoming)

Elizabeth A. Brehm (PHV forthcoming)

Wendy Cox (Admission Pending)

SIRI | GLIMSTAD LLP

200 Park Avenue, 17th Floor

New York, NY 10166

(212) 532-1091 (v)

(646) 417-5967 (f)

aaron@sirillp.com

ebrehm@sirillp.com

wcox@sirillp.com

Christopher Wiest (PHV forthcoming)

Chris Wiest, Atty at Law, PLLC 

25 Town Center Boulevard, Suite 104

Crestview Hills, KY 41017

(513) 257-1895 (c)

(859) 495-0803 (f)

chris@cwiestlaw.com

Thomas Bruns (PHV forthcoming)

BCVA Law

4555 Lake Forest Drive, Suite 330

Cincinnati, OH 45242

(513) 312-9890 (t)

tbruns@bcvalaw.com

/s/ John C. Sullivan

John C. Sullivan

S|L LAW PLLC

Texas Bar Number: 24083920

610 Uptown Boulevard, Suite 2000

Cedar Hill, Texas 75104

(469) 523–1351 (v)

(469) 613-0891 (f)

john.sullivan@the-sl-lawfirm.com

Attorneys for Plaintiffs

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