1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARIELLA CREAGHAN , Plaintiff

v. LLOYD AUSTIN, in his official capacity as Secretary of the United States Department of Defense, et al. , Defendant s . Civil Action No. 2 2

- 0981 (CKK)

MEMORANDUM OPINION ( May 26, 2022) On September 3, 2021, the Secretary of the Air Force added a medical requirement for all members of the Air Force and Space For ce , vaccination aga inst COVID

- 19

. Plaintiff, a Cap tain in the Space F o rce , req uested a religious exe mption from this medical requirement, alleging th at i t substantial ly b urden ed her religious beliefs. Although Space Force and Air Force leadership agreed that the medical requirement substantially burde ned her b eli e fs, they den ied her request for an exemption, concluding that the medical requirement is the least restrictive means to further the military ’ s interest in Plaintiff ’ s health specifically and force readiness more broadly. Plaintiff disagrees, and moved for a prelimina ry injunction in this Court , claiming that enforcing the medical r equirement would violate : (1) the Religious Freedom Restoration Act , 42 U .S.C. §§ 2 000bb et seq. ; (2) the First Amendment; and (3) the Fifth Amendment. On May 12, 2022, the Court denied Pl aintiff ’ s request for preliminary relief . The Court concluded that Plaintiff was not likely to succeed on the merits, did not show impending, irreparable harm, and that the balance of the equities weighed against a preliminary inju nction. Presently pendi ng before the Court is Plaintiff ’ s [29] Motion for Injunction Pending Appeal of the Court ’ s order denying2 preliminary relief. Upon consideration of the briefing, 1 the relevant legal author ities, and the entire r ecord, the Court sha ll DENY Plaintiff ’ s [29] Motion. I. BA CKGROUND For a more detailed background on this case, the Court re fers the reader to its [ 27] Memorandum O pinion. The medical requirement at issue in this case was first made applicable
to Plaintiff ’s branch of service on September 3, 2021. Cr eagh an v. A ustin , 2022 WL 1500544, a t *2 (D.D.C. May 12 , 2022). On December 7, 2021, the Secretary of the Air Force issu ed an order providing for “medical , religious[,] or administrative exemptions,” and temporarily exempted servicemembers from discharge or adverse action while exemption requests were pending. Id. The recognition of these exemptions was largely perfunctory, as requests for COVID

- 19 vaccination exemptions are governed by the same rules and regulations, active since 2018, that govern all other reques ts for exemptions from other vaccinations. I d. As of April 26, 2022 , the Air Force has granted 460 medical exemptions (including seven for Space Force Guardians) , and 41 religious exemptions. Cr eagh an , 2022 WL 1500544, a t *2

. Plaintiff ’s reque st for an exemption went through six level s of review : (1) Plaintiff ’s first

- , second

- , and third

- level commanding officers ; ( 2 ) a five

- member , interdisciplinary “Religious Re solution Team ” ( “ RRT ”) ; ( 3 ) the commanding general of the Space Force , Lt. Gen. Stephen Whiting ; and ( 4 ) the Surgeon General of the Air Force , Lt. Gen. Robert Miller

. Id. at

1 The Court’s consideration has focused on the following:
• Plaintiff ’ s Moti on for Injunction Pending Appeal ( “ Mot.”), ECF No. 29 ; • Defendants ’ Opposition to Plaintiff ’ s Moti on for an Injunction Pending Appeal (“ Opp .”), ECF No. 32; and
• Plaintiff ’ s Reply in Support of Plaintiff ’ s Mot ion for an Injunction Pending Appeal ( “ Repl. ” ) , ECF No. 33

. In an exercise of its discretion, the Court finds that holding oral a rgument would not be of assistance in rendering a decision. See LCvR 7(f).3 *3

- 4

. Although the first two level s of review re commended granting Plaintiff ’s request, the final four opted for denial. Id. In its report reco mmending denial, the RRT made a number of findings to guide Lieutenant General Whiting in his ultimate decision

. First, the RRT noted that, as a Captain assigned to the Space Force ’s National Reconnaissance Office ( “NRO ”) , Plaintiff “is responsible for directing dai ly operations and m aintenance for NRO space and ground systems and assuring overall spacecraft health and mission success. ” ECF No. 22

- 13 at 63

. The RRT noted that , although Plaintiff is currently “in a non

- dep loy able pos ition, ” she may have to travel in the future. Id. The report found that NRO “[ p]ersonnel are required to take a COVID test every 7 days

. ” The RRT further found that “ [v]accines are an integral part of force health protection measures ” and assure se rvicemembers ’ “responsibility to maint ain their health and fitness, meet individual medical re adiness requirements, and report medical and health issues that may affect their readiness to dep loy or fitness to continuing serving ” in their assigned role. See id. at 66. Finally, it found that “ vaccination remains the best way to protect individuals, their families, and the community

. ” Id. at 67. Per the RRT ’ s re por t, and on his own independent judgment , Lie utenant General Whitin g found that for “ a Mission Director re sponsible for directing daily operati ons and maintenance for NRO space and ground systems, and ensuring overall space craft healt h and mission success, ” vaccination was the least restrictive means to acco mplish the military ’ s interest in Plaintiff ’ s h ealth and readiness specifically. Creaghan , 2022 WL 1500544 , at *4. T he Surgeon General of the Air Force agreed. Id. The Sur geon General attached supporting d o cumentation in which the Air Force found that “ personnel are m uch less likely to develop se vere disea se, be hospitalized, or die as a result of being vaccinated. ” ECF No. 22

- 13 at 105. The Air Force also concluded4 that there was n o superior health measure to combat COVID

- 19 among Airmen and Guardians, including perpetual masking. Id. at 106. In its Memorandum Opinion denying Plaintiff ’ s [11] Motion for Temp orary Restraining and/or Preli minary Injunction, the Court incorp orated its legal reasoning in Navy SEAL v. Austin , 2022 WL 1294486 (D.D.C. A pr. 29, 2022). Creaghan , 2022 WL 1500544 , at *5. In so doing, the Court concluded broadly that Plaintiff was unlikely to succeed o n the merits of any of her claims, did not show impending , irreparable harm, and the b alance of the equ ities weighed against preliminary relief. See id. at *1. In dicta , t he Court was concerned that a challenge to a military vaccination order may no t be justiciable, either because such an order involves nonjust iciable review of discretionary military judgments or because such an order i nvolves nonjusticiable review of scient ific and medical judgments textually committed to another branch of government. I d. at *5

- 6. Even if the question were justiciable, the Court opined that i t is

more likely than not that Defendants have a compelling government interest in vaccinating Plaintiff specific ally and that vaccination is the leas t restrictive means to protect Plaintiff against the adverse effects of COVID

- 19 infection. Id. at *7

- 10. Add itionally, having incorporating Navy SEAL , the Court concluded that binding Supreme Court precedent extend s only rational basis review to Plaintiff ’ s constitutional claims

. See Navy SEAL , 2022 WL 1294486 , at *13

- 14. Plaintiff firmly disagrees with the Court, having filed the instant motion for a stay pending appeal. With that motion fully brief ed, the Court t urns to its resolution. II. LEGAL STANDARD A party that m oves for a stay pending appeal bears the burden of showing that the ba lance of fo u r factors weighs in favor of the stay: (1) the likelihood that the party seeking the st ay will prevail on the merits o f the appeal; (2) the l ik elihood that the moving party will be irreparably harmed absent a stay; (3) the5 prospect that others will be harmed if the court gr ants the stay; and (4) the public interest in granting the stay. Cuomo v. U.S. Nuclear Regulatory C omm ’ n , 772 F.2d 97 2, 974 (D.C. Cir. 1985). A stay pending appeal, like a preliminary injunction , is “ an extraordinary remedy. ” Id. at 978.

“ [W]he re a plaintiff cannot show a likelihood of success on the merits, ‘ it would take a very
stron g showing with respect to the other preliminary injunction factors to the turn tide in plaintiff ’ s favor. ’ ” Al

- Anzi v. Bush , 370 F. Supp. 2d 188, 193 (D.D.C. 2005) (quoting Davenport v. Int ’ l Bhd. of Teamsters , 166 F.3d 356, 366

- 67 (D.C. Cir. 199 9 ) )

. III. D ISCUSSION F or the reasons already stated in the Court ’ s [27] Memorandum Opinion, Plaintiff is

un likely to succeed on the merits

. T o prevail on appeal, Plaintiff would have to make a number of showings. First, Plai ntiff would have to convince the Court of Appeals that neither of th e justiciability doctr ines the Court identified apply in this case. Even if she did so, she would then have to show that Defendants do not have a com pelling interest in her health and readiness or, even so, that vaccination is not the narrow est means to se cure that interest. This is a heavy burden to carry

. I n her instant Mo tion, Plaintiff mainly argues that the Court misapprehended RFRA ’ s legal standard and that, had it properl y applied RFRA, the Court ought to have con cluded that Plaintif f was likely to succeed on her RFRA claim. N ot so. As an initial matter, Plaintiff repeats her argument that the Court incorrectly surmised in Navy SE AL that the military ’ s scientific and medical judgments should re cei ve some level of regard in determini ng w hether a particular medical requirement is in fact narrowly tailored. Repl. a t 5. Even if the military ’ s scientific and medical judgments are d ue no regard at all in th is type of case , Plaintiff w ould still be unlikely to succeed on the merits of her RFRA claim. See Roth v. Austin , 2022 WL 1568 830 , at *2 0

- 24 (D.6 Neb. May 18, 2022) ( disagreeing with the Court ’ s tentative opinion that military, scientific judgments are entitled to due regard in assessing whethe r a m ilitary order is narrowly tailored bu t holding that Airmen were unlikely to succeed on RFRA claims for vaccination exemptions ) . As the Court already explained, and as Roth , for example, agreed in con sidering this Court ’ s [27] Memorandum Opinion , by “ log ic alone, ” the “ military ’ s g eneral comp elling interest in ensuring the health of its ser vicemembers [likely] distill[s] to a compelling interest in ensuring that Plaintiff remains healthy enough to accomplish her duties. ” Creaghan , 2022 WL 1500 5 44, at *9 ; accord Roth , 2022 WL 1568830 at *20

- 21. As already noted, that Plaintiff clai ms she works in close proximity to unvaccinate d federal contractors is either immaterial or even more reaso n for the military to require her vaccination. See Cre aghan , 2022 WL 150 0 5 44 , at * 10 & n.8. Similar ly, as this C ourt con cluded in Navy SEAL and repeated in Creaghan , Roth concluded on a very similar record that the mil itary adequately showed that vaccination is “ the least res tri ctive means to accomplish its compelling interest ”

–– even extending the military no def erence what soever. 2022 WL 1568830 at *27. The record shows that the Air Force considered alternatives to vaccination and rejected all of them as insuffi cient. For examp le, Colonel James R. Poel , Chief of Public Health at the Air Force Medical Readiness Agency,

ex plains in his de claration how masking, temp erature tests, testing, natural immunity, social distancing , herd immunity, and incre ased sanit ation are all insufficient compared to vaccination. See generally ECF No. 22

- 8. Contrary to Plaintiff ’ s u nderstandin g of the record , the Air Force also considered a number of those alternatives when reviewing Plaintiff ’ s request specifically and rejected them. For example, the medical expert on Plaintiff ’ s RRT wrote that they were

“ unaware of any consistent scientific data documenting a less restrictive means th an vaccination which is capa ble of meeting the government ’ s compelling interest to protect the health and safety7 of Airmen and Gu ardians. ” ECF No . 22

- 13 at 100. Another te am member concluded that “ [l]ess restri ctive means including social distancing , mask wearing, and/or increased COVID

- 19 testing cannot be used to meet the compelling government interest

. ” Id. at 99. In denying Plaintiff ’ s appeal, Lieutenant General Miller attached Air Force medical research il lustrating that masks, prior infection, increased testing, social distancing, and social isolation are all inferior to vaccination. Id. at 104

- 10. As in Navy SEAL , th e Court was “ not inclined to conclude at this early stage of the case that the military ’ s scientific and medical conclusions, which rest on the great weight of scientific authority, should be rejected. ” See 2022 WL 1294486, at *11; accord
R oth , 2022 WL 1568 830 , at *22

. For the proposition that the military should receive no deference in it s factual conclusions, Plaintiff now relies on Ramirez v. Collier , 142 S. Ct. 1264 (2022) and Holt v. Hobbs , 574 U .S. 352 (2015). T hose cas es dealt with religious exemption requests in prisons ; both de cisions are entirely s ilent as to the military conte x t . As the Court expl ained, “ ‘ con text is important ’ ” and the military situation is unique given the long line of Supreme Court precedent cautioning against intervention in military affairs

. Creaghan , 2022 W L 150 0 5 44 , at *8 (qu oting Navy SEAL , 2022 WL 12944 86); see also Austin v. U.S. Navy Seals 1

- 26 , 142 S. Ct. 1301, 1302 (2022) (Kavanaugh, J., concurring). In consideration of this precedent , and in light of RFRA ’ s legislative history indi cating that Congress did not intend RFRA to “ adversely impair the ab ility of the U.S . military to maintain good order, discipline, and se curity, ” S. Rep. No. 103

- 11 1 at 12, the Court joined at least two other district courts in concluding that the military ’ s scientific determinations are due at least some weight in judicia l review of a military RFRA claim. See , e.g. , Short v . Berger , 2022 WL 1051852, at *7 n.12 ( C.D. Cal. M ar. 3, 2022 ) ; Poffenb arger v. Kendall , --- F. Supp. 3d

--- , 2022 WL 594810, at *1 8 (S.D . Ohio Feb. 28, 2022). Even then, the8 level of deference , the Co urt opined, that may be d ue is much more akin to the Supreme Court ’ s conclusion in Holt that “ courts should respect th[e] expertise ” of prison officials in reviewing a denial of a request for a religious exemption

. See 574 U.S. at 364. To the extent tha t Plaintiff complains that the reviewing au thorities did not sufficient l y address her circumstances , see Repl. at 6

- 7, the Court has already explained that the recor d shows otherwise , see Creaghan , 2022 WL 1500544 at *10 (listing a number of findings indiv idual to Plaintiff in the record). 2 In any event, RFRA states so lely that a substantial burden

on a “ person ’ s exe rcise of rel igion ” is justified only if it is in furtherance of a compelling government interest and is narrowly tailored. 42 U.S.C . § 2000b b

- 1(b). The Court did not read the statute to impose any i nve stigatory requirements on the government ab ini tio and Plaintiff cites no authority for such a pro position. As to irreparable harm, Plaintiff again mainly relies on the likely incorrect propo sition that a likely RFRA violation is per se irreparable harm. Mot. at 10

. To be sure, the Tenth C ircuit held as much in Hobby Lobby Stores, Inc. v. Seblius , 723 F.3d 1 1 14, 11 4 6 (2013 ), but that is not the law of this Circuit. As the Court has explain ed, only by showing a likely

“ depriv ation of constitutional [, not merely statutory ,] rights ” does a plaintiff show irreparable harm. Na vy SEAL , 2022 WL 1294486, at *16 (quoti ng Arch diocese of Wash. v. Wash. Metro. Area Transit Auth

. , 897 F.3d 314, 3 34 (D.C . Cir. 2018) ). In any event, even if t he Court were to adopt the T enth Circuit ’ s approach, Plaintiff has not shown a likel ihood of success on her RFRA

c laim, and therefore has not shown a likelihood of irrep arable harm under Tenth Circuit law.

2 Plaintiff also briefly suggests that an evident i ary hearing on Plaintiff ’ s motion for preliminary relief might have been warranted. Th is is the firs t ti me Plaintiff has r aised the issue and , as P laintiff states, “ there are no conflicting facts in the record

. ” See Mot. at 7. The Court stresses that it did not make factual findings or resolve factual disputes in its [27] Memorandum Opinion. It solely made a limi ted number of broad legal conclusions

.9 Fin ally, as to the balance of the equities, the Court reiterates that any invocation of a

“ religious liberty interest is . . . always weigh ty. ” Navy SEAL , 2022 WL 1294486, at *17. Never theless, the Court jo ins other courts in concluding that the military ’ s “ interest in preventing COVID

- 19 from impa iring the readiness and the health of its forces, including individual service members like Plaintif f[], is in the public interest. ” See , e.g. , Roth , 2022 W L 1568830 , at *31. Particularly given the weakness of Plaintiff ’ s case on the merits, a n injunction pending appeal would harm th at public interest. IV. CONCLUSION For the reasons disc ussed above, Plaintiff ’ s Motion for Injunction Pending Appeal is DENIED

. An appropriate order accompanies this memorandum opinion.
Dat ed: May 26 , 2022 /s/ COLLEEN KOLLAR

- KOTELLY United States District Judge