1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION 

JACE YARBROUGH, 

Plaintiff, 

v. 

THE UNITED STATES SPACE FORCE; 

THE UNITED STATES DEPARTMENT 

OF THE AIR FORCE; THE 

DEPARTMENT OF DEFENSE; LLOYD J. 

AUSTIN III, in his official capacity as 

Secretary of Defense; FRANK KENDALL, in 

his official capacity as the Secretary of the Air 

Force; and GENERAL B. CHANCE 

SALTZMAN, in his personal capacity and 

official capacity as the Chief of Space 

Operations, 

Defendants.

Case No. 4:23-cv-00876

COMPLAINT 

INTRODUCTION 

1. Service members do not forfeit their basic rights and freedoms as American citizens

simply because they join the military.

2. Instead, the different character of the military community and the military mission simply

requires a different application of those protections.

3. But that different application does not apply to members of the Air Force Reserve

exercising their private religious and private free speech rights pursuant to the First

Amendment to the United States (U.S.) Constitution in their purely civilian off-duty

capacity in a private venue.

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4. This case arises from Defendants’ decision to take adverse, disciplinary action against 

Plaintiff, Mr. Jace Yarbrough, solely for his private religious belief and private speech on 

matters of public concern—words spoken as a civilian on behalf of a dear friend at a 

small, private military retirement ceremony of only 25 persons, most of whom were the 

retiree’s colleagues, family, and close friends. 

5. After years of distinguished service as an active-duty officer, Mr. Yarbrough now serves 

as a Major (Grade O-4) in the United States Air Force Reserve and as an attorney in his 

civilian life. As with all active reservists, he lives day to day as a true civilian but serves 

with his unit for roughly five weeks every year when activated to military status through 

official orders.

6. Mr. Yarbrough is a Christian whose sincerely held beliefs animate his actions, 

viewpoints, and speech. His dear friend, Senior Master Sergeant (SMSgt) Duane Fish, 

shares a sincere personal faith and invited him to offer remarks at SMSgt Fish’s 

retirement ceremony in Hawaii in June 2021. 

7. At all times relative to the conduct at issue, Mr. Yarbrough was acting in a purely civilian 

status, with the full rights and freedoms of every U.S. citizen. 

8. In June 2021, Mr. Yarbrough took his wife and child on a trip from Texas to Hawaii, both 

to serve SMSgt Fish at his retirement ceremony and as a family vacation. Mr. Yarbrough 

paid all the expenses himself, without any Air Force remuneration whatsoever. He 

decided whether to deliver the remarks, determined the content of the remarks, and 

planned the travel logistics completely on his own, without any Air Force orders, input, 

coordination, or assistance. 

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9. As part of that trip, on June 11, 2021, he made a speech during the retirement ceremony 

in Pearl Harbor, aboard the Battleship Missouri Memorial, a museum ship managed by a 

privately owned nonprofit organization. Mr. Yarbrough’s remarks relevant to this 

complaint were an exercise of his sincere religious beliefs, stemming from his belief that 

Christians must speak truth as an essential element of faith. He illustrated this point by 

quoting one of his personal religious inspirations, Aleksandr Solzhenitsyn—a famous 

Christian imprisoned in a Soviet gulag, whom Mr. Yarbrough saw as a representation of 

his religious duty to publicly affirm basic truths of the natural law. The remarks also 

expressed his viewpoints on matters of public concern. 

10. The remarks that led to Mr. Yarbrough’s discipline by his military superiors involved his 

warning about politicization within the military. They were not censorious of the military 

as a whole but were respectful and provided encouragement to continue widely admired 

military values, including honesty, integrity, courage, and competence—values he saw 

exemplified by SMSgt Fish’s career. The comments included Mr. Yarbrough’s concern 

that a “culture war” within the military could threaten these very same military values. 

Mr. Yarbrough’s religious beliefs compelled him to give this speech, in accord with 

SMSgt Fish’s own wishes. 

11. Although his remarks were praised by some attendees, a Navy member who was present 

filed a complaint that made its way to Mr. Yarbrough’s Air Force chain of command.

12. Rather than respecting Mr. Yarbrough’s freedom of speech and religion as a civilian 

speaking in his personal capacity, his supervisor overstepped military jurisdiction and 

issued a Letter of Admonishment (LOA) on August 25, 2021, to Mr. Yarbrough in his 

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civilian capacity at his home in Texas, alleging that Mr. Yarbrough’s remarks had been 

“insubordinate, disrespectful, and unbecoming of an officer in the military.”

13. Despite multiple administrative appeals up the chain of command, Defendants refused to 

rescind the discipline, which will continue to have a significant negative impact on 

Mr. Yarbrough’s military and civilian careers. For example, Mr. Yarbrough’s supervisors 

have already decreased his utilization, which Mr. Yarbrough believes is a result of the 

LOA. Moreover, Defendants erroneously insist that the Armed Forces have jurisdiction 

to take administrative action against off-duty reservists acting in their civilian capacity, 

citing an unfounded Air Force instruction, DAFI 36-2907, that oversteps all statutory 

military authority in violation of the Administrative Procedure Act. 

14. Mr. Yarbrough brings this action to redress his constitutional and statutory rights. 

JURISDICTION AND VENUE 

15. The Court has personal and subject-matter jurisdiction under 28 U.S.C. § 1331 because 

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

16. The Court has jurisdiction under 28 U.S.C. § 1346 because this is a civil action against 

the United States. 

17. The Court has jurisdiction under 28 U.S.C. § 1361 because Mr. Yarbrough seeks to 

compel an officer or employee of the United States or any agency thereof to perform a 

duty owed to him. 

18. The Court has jurisdiction under 42 U.S.C. § 2000bb-1 because Mr. Yarbrough’s 

religious exercise has been substantially burdened by Defendants. 

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19. The Court has jurisdiction to review Defendants’ unlawful actions and inactions, and 

enter appropriate relief, under the Administrative Procedure Act, 5 U.S.C. §§ 701–706. 

20. The Court has jurisdiction to review and enjoin ultra vires or unconstitutional actions by 

government officials through an equitable cause of action. See Larson v. Domestic & 

Foreign Commerce Corp., 337 U.S. 682, 689–92 (1949). 

21. This Court has authority to award the requested relief pursuant to 42 U.S.C. § 2000bb-1 

and Tanzin v. Tanvir, 141 S. Ct. 486 (2020); the requested declaratory relief pursuant to 

28 U.S.C. § 2201–02; the requested injunctive relief pursuant to 5 U.S.C. § 702 and 

28 U.S.C. § 2202; and the costs and attorneys’ fees pursuant to 42 U.S.C. § 1988(b). 

22. Venue is appropriate in this district under 28 U.S.C. § 1391(e) because Defendants are 

located here and a substantial part of the acts giving rise to these claims occurred here. 

THE PARTIES 

Plaintiff 

23. Mr. Yarbrough is a civilian attorney in Texas, where he lives with his wife and children. 

24. He received an active-duty commission as an officer in the Air Force on September 7, 

2011, but he has served as a reservist in the Air Force since late 2015, currently holding 

the rank of Major. He has been recognized as a dedicated and valuable member of the Air 

Force, receiving official decorations and high praise from his superiors throughout his 

military career. 

25. He is also a committed Christian, whose sincerely held religious beliefs motivate his 

speech and conduct and include adherence to the Christian Natural Law tradition. He 

believes God wrote this objective, natural law in the hearts of all persons, in part to guide 

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them in right action. Mr. Yarbrough’s speech at issue here encouraged the audience not to 

suppress objective realities and truths made evident to them by the natural law written on 

their hearts. 

Defendants 

26. The U.S. Space Force is a separate and distinct branch of the armed services, organized 

under the Department of the Air Force, and under which occurred the disciplinary action 

at issue herein. 

27. The U.S. Department of the Air Force is the executive department under which Mr. 

Yarbrough currently serves as a reservist, and under which occurred the disciplinary 

action at issue herein. 

28. The Department of Defense (DoD), is an executive branch department that coordinates 

and supervises all agencies and functions of the government related to the U.S. Armed 

Forces, including the disciplinary action at issue herein. 

29. Lloyd J. Austin III, in his official capacity as the U.S. Secretary of Defense, is the 

principal assistant to the U.S. President in all matters relating to the U.S. Department of 

Defense, including the disciplinary action at issue herein. 

30. Frank Kendall, in his official capacity as the Secretary of the Air Force, is responsible for 

organizing, training, and equipping the Department of the Air Force and U.S. Space 

Force, as well as supervising their functions, including the disciplinary action at issue 

herein. 

31. General B. Chance Saltzman, in his individual capacity and official capacity as Chief of 

Space Operations, U.S. Space Force, is a member of the Joint Chiefs of Staff and the 

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senior uniformed Space Force officer responsible for the organization, training and 

equipping of all space forces. On July 29, 2022, General Saltzman—through his agent, 

Brigadier General Gail E. Crawford—took “final action” and denied Mr. Yarbrough’s 

final appeal to rescind the disciplinary action at issue herein. 

FACTS 

General Background 

32. Mr. Yarbrough was raised in a Christian home in a small town in west Texas. His 

grandfather was a Christian pastor, and his faith was central to his upbringing. He 

attended The University of Texas at Austin from 2005 to 2009, where he received a 

Bachelor of Arts degree in Government and a Bachelor of Science degree in Electrical 

and Electronics Engineering. 

33. As an undergraduate, Mr. Yarbrough studied under Professor J. Budziszewski, a 

philosopher who has taught and written extensively about the Natural Law, selfdeception, and Christian belief and doctrine. Mr. Yarbrough’s coursework under Dr. 

Budziszewski included a course titled, “Natural Law Theory.” 

34. Motivated to pursue public service while in college, Mr. Yarbrough participated in a 

year-long Christian fellowship at the John Jay Institute for Faith, Society and Law. 

35. Soon after college, he believed that God was calling him to serve in the military on active 

duty. For that reason, he volunteered for and received an active-duty commission in the 

U.S. Air Force. 

36. From 2010 to 2011, while waiting to attend Air Force Officer Training School, he taught 

in a Christian school in Tegucigalpa, Honduras. 

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37. In the fall of 2022, Mr. Yarbrough and his wife founded a private, low-cost Christian 

Academy for families in their community. Mr. Yarbrough currently serves as the 

headmaster of this academy, where he leads morning, noon, and evening prayer each 

school day. 

38. Mr. Yarbrough continues to practice his sincerely held religious beliefs. Some public 

expressions of that faith include weekly Mass attendance, teaching children’s catechesis 

at his home parish, and hosting Christian men’s discussion groups. 

Initial Active-Duty Assignment 

39. On September 7, 2011, Mr. Yarbrough was commissioned as a second lieutenant in the 

U.S. Air Force. He completed initial technical training in various courses involving 

systems acquisition, logistics, and systems planning. 

40. In his first assignment as the Chief of Reverse Engineering, at Robins Air Force Base 

(AFB), Georgia, he provided leadership, motivation, and training to a fourteen-member 

reverse-engineering team. During this time, he and his team developed organic repair 

capability for dozens of Air Force weapon systems. 

41. While at Robins AFB, he continued his training, taking courses in test and evaluation, 

acquisition management, and software acquisition management. 

42. Mr. Yarbrough’s superiors at Robins AFB praised his outstanding leadership. In his 

annual Officer Performance Reports (OPRs), his supervisor rated him #1 of 75 engineers 

in the squadron in 2012 and #1 of 13 Company Grade Officers (CGOs) in 2013. 

43. He also won multiple individual awards for leadership excellence—all as a second 

lieutenant—at the Group, Wing, Base, and Major Command (MAJCOM) levels 

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including: Air Force Materiel Command’s Airlift/Tanker Young Leadership award 

(2013); Warner Robins Air Logistics Complex’s (WR-ALC) Lance P. Sijan award 

(2013); WR-ALC Captain Roland R. Obenland Engineering Memorial award (2013); 

WR-ALC’s Company Grade Officer of the Quarter (CGOQ) (twice in 2013); 402 

Maintenance Wing’s CGOQ (2012); 402 Electronics Maintenance Group Ten 

Outstanding Young Americans award (2012). During this period, Mr. Yarbrough also led 

the Reverse Engineering Team to win the WR-ALC Maintenance Depot Team of the 

Year (2012). For his service at Robins AFB, Mr. Yarbrough was awarded the Air Force 

Achievement medal. 

Active-Duty Service in the National Capitol Region (Washington, D.C.) 

44. In 2013, Mr. Yarbrough was reassigned to the U.S. Air Force Honor Guard at Joint Base 

Anacostia–Bolling in Washington, D.C. The USAF Honor Guard is the Air Force’s most 

elite ceremonial unit, rendering military honors for deceased veterans at Arlington 

National Cemetery and representing the Air Force at ceremonies in the National Capitol 

Region (NCR) and around the world. 

45. While in D.C., Mr. Yarbrough served as an executive officer and then flight commander 

for multiple operational flights. In this capacity, he led more than fifty airmen and 

commanded more than 500 missions and elite ceremonies. 

46. His superiors continued to laud his leadership in his annual OPRs, rating him #1 of 44 

Lieutenants in 2014 and #2 of 6 Group CGOs in 2015. 

47. He also continued to be recognized for his excellence as a leader, winning awards as the 

11th Wing CGOQ twice in 2014. 

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48. For his service at Joint Base Anacostia-Bolling, Yarbrough was awarded the Air Force 

Commendation medal. 

Working Relationship with SMSgt Fish 

49. While serving in D.C., Mr. Yarbrough worked closely with SMSgt Fish, the flight 

superintendent for the first operational flight Mr. Yarbrough commanded. 

50. He and SMSgt Fish developed a close working relationship and friendship. 

Mr. Yarbrough and SMSgt Fish shared certain religious beliefs and values, including 

about the importance of leadership and integrity. 

51. He and SMSgt Fish would often speak about how their faith and values informed their 

conduct and leadership roles in the military. 

52. He served beside SMSgt Fish until leaving active duty to attend law school, at which 

point, he transitioned to the Air Force Reserve in 2015. 

Law School and Initial Air Force Reserve Service 

53. On September 24, 2015, after four years on active duty, Mr. Yarbrough was honorably 

discharged from active duty to pursue a career in the Air Force Reserve. In addition to the 

decorations listed above, during his time on active duty Mr. Yarbrough was awarded the 

Outstanding Unit Award, the National Defense Service Medal, and the Global War on 

Terrorism Service Medal. 

54. From 2015 to 2018, Mr. Yarbrough attended Stanford Law School, where he served as 

President of the Federalist Society and Co-President of the Kirkwood Moot Court 

Competition. 

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55. In September 2015, he also began service in the Air Force Reserve as an Individual 

Mobilization Augmentee (IMA). Unlike traditional reservists who serve in uniform one 

weekend per month and two weeks a year, IMA reservists have very flexible service 

schedules and perform military duties (and receive compensation) during specific, 

discrete periods when placed “in status” by their military units. 

56. While attending law school, Mr. Yarbrough served as the IMA to the Director of 

Operations (DO) of a cyber operational test squadron at Joint Base San Antonio, San 

Antonio, TX. He completed his reserve duties during summer breaks, traveling back to 

California for school during the academic year. 

57. As an IMA to the DO, Mr. Yarbrough directed his 190-member squadron in day-to-day 

operations testing cyber assets. In 2019, he was competitively selected for and graduated 

from Air Force Reserve Command’s Leadership Today and Tomorrow, a leadership 

course designed to “bridge the gap between the tactical Company Grade Officer and the 

operational Field Grade Officer.” 

58. Reserve leadership continued to recognize Mr. Yarbrough’s excellence in his OPRs. His 

commander rated him #1 of seven Group IMA CGOs in 2019 and #1 of eight IMA 

Captains in 2020. 

59. During his service at Joint Base San Antonio, Mr. Yarbrough was awarded two additional 

Air Force Commendation medals. 

60. Mr. Yarbrough continues to voluntarily serve in the Air Force Reserve despite the fact 

that his Reserve Obligation Termination Date was June 6, 2019. 

61. He obtained his Juris Doctor (J.D.) from Stanford Law School in 2018. 

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Reserve Service in Colorado 

62. Beginning in November 2020, Mr. Yarbrough was assigned to Peterson Space Force 

Base (SFB), CO, serving as IMA to the Branch Chief of Operations and Requirements, 

Headquarters Space Operations Command. 

63. In that same year (2020), he received an early promotion to his current rank of 

Major (O-4). 

64. Roughly one year after he joined, and soon after the events that gave rise to this lawsuit, 

his unit underwent many administrative changes and a relocation to the east coast. As a 

result, he is currently assigned to Space Systems Command at Patrick SFB, FL, where he 

serves as IMA to the Chief, Enterprise Integration Division. In this role, he assists the 

Chief of his division as directed. 

Civilian Legal Practice 

65. Though he serves for a brief period each year as an Air Force reservist, Mr. Yarbrough is 

employed full time as an attorney in private practice in the Dallas, Texas area. 

66. After five years as a commercial litigation and intellectual property associate in global 

law firms, Mr. Yarbrough joined the firm of S|L Law, PLLC, where he litigates a variety 

of matters. 

Mr. Yarbrough’s Sincere Religious Beliefs Motivated His Conduct and Speech 

67. Mr. Yarbrough’s sincere Christian faith is central to his worldview, choices, conduct, and 

speech. 

68. Mr. Yarbrough has recently served in multiple church roles, including lay reader, lector, 

and acolyte. 

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69. He and his wife completed the Rite of Christian Initiation of Adults (RCIA) during Easter 

2023, fully entering into communion with the Roman Catholic Church. 

70. Mr. Yarbrough believes that God has used Christian thinkers, such as C.S. Lewis, Francis 

Schaeffer, and, as particularly relevant to the remarks at issue, Aleksandr Solzhenitsyn, to 

inspire and shape his life, beliefs, and religious exercise. 

71. He shares Solzhenitsyn’s deeply rooted religious conviction to actively live out his faith 

by testifying to the truth. As such, he feels obliged as a religious exercise to live out his 

faith by speaking the truth even at great personal cost. 

SMSgt Fish Requested Mr. Yarbrough to Deliver Remarks as a Personal Favor 

72. Because of their shared friendship, faith, and values, in early 2021 SMSgt Fish asked Mr. 

Yarbrough to preside at his retirement ceremony, offering some remarks regarding 

SMSgt Fish’s service. Both military personnel and civilians may preside at retirement 

ceremonies. AFPAM 34-1202 at 6.3.1; AFI 26-3203 at 7.1.3.2. The retirement ceremony 

took place in Hawaii in June 2021. 

73. Mr. Yarbrough felt honored to deliver these remarks on behalf of a person whom he 

admired for his professional service, leadership, personal character, and shared values. 

74. The two agreed that his remarks should touch on matters of integrity, courage, and 

leadership, values SMSgt Fish exemplified in his military career. 

Mr. Yarbrough Delivered the Remarks as a Civilian 

75. Mr. Yarbrough agreed to deliver the remarks as a personal favor to a friend, not as an 

official Air Force duty. It was also an opportunity to take a brief vacation to Hawaii with 

his wife and infant child. 

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76. Mr. Yarbrough’s family paid all their own expenses for the trip from Texas to Hawaii, 

including the cost of all flights, hotels, meals, and rental car. The Air Force did not pay or 

offer to remunerate any expenses associated with the trip, nor did Mr. Yarbrough receive 

any remuneration from the Air Force whatsoever for or during this trip. 

77. Mr. Yarbrough and his family arrived in Hawaii in early June, two days before the 

ceremony, and returned to Texas the day following the ceremony. While in Hawaii, his 

family also spent time doing traditional vacation activities unrelated to the ceremony. 

78. At no point during the family’s Hawaii trip did the Air Force activate Mr. Yarbrough to 

change his civilian status to a military status, nor did the Air Force provide him official 

direction or issue any orders for him to travel to or attend the event. 

79. No member of Mr. Yarbrough’s military unit or SMSgt Fish’s chain of command ever 

coordinated with Mr. Yarbrough about the trip or the ceremony. 

80. SMSgt Fish’s Retirement Ceremony was held aboard the Battleship Missouri Memorial 

in Pearl Harbor, Hawaii, on June 11, 2021. 

81. The Memorial is run by a privately owned, 501(c)(3) nonprofit organization—the USS 

Missouri Memorial Association. 

82. In addition to military ceremonies, the USS Missouri Memorial Association offers the 

memorial to the public for year-round community and other private events, as well as for 

events that commemorate the history aboard the ship sponsored by the private nonprofit 

organization that maintains the memorial. 

83. On or around June 9, 2021, Mr. Yarbrough attended a rehearsal for SMSgt Fish’s 

retirement ceremony. Then, on June 11, he and his family attended the event. 

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84. Because of COVID-19 restrictions, total attendance at the retirement ceremony was 

limited to twenty-five persons. Thirteen of those attendees were members of SMSgt 

Fish’s family, with an additional group of his personal military friends, including Mr. 

Yarbrough and his family. The only other military personnel attending the event were 

SMSgt Fish’s commander, Colonel Richard Smith, Chief Master Sergeant Jason Farris, 

and a handful of support personnel, including a standard Navy quartet. 

85. While attending the event, Mr. Yarbrough was an inactive reservist in a purely civilian 

status. He was not participating in any form of Air Force inactive duty training, nor was 

he between inactive duty training sessions or receiving remuneration from the Air Force 

for his time spent attending the event. 

86. In keeping with the tradition of military retirement and other private formal ceremonies, 

Mr. Yarbrough wore his Air Force uniform to the event. 

87. Air Force Instructions authorize inactive reservists to wear uniforms on occasions such as 

military ceremonies and social military functions but do not instruct that doing so 

converts the reservist into military status. DAFI 36-2903, dated February 7, 2020, 

provides guidance for uniform wear by retirees, reservists, and other former military 

personnel who are now separated from the Air Force. 

88. In particular, Paragraph 11.1.2 of that instruction, which purports to apply to “[r]eservists 

not on extended active duty,” authorizes the wearing of the Air Force uniform in various 

capacities, such as when a reservist in civilian status is “traveling as a passenger on 

military aircraft,” during “occasions of military ceremonies,” and during “social functions 

and informal gatherings of a military nature.” 

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Mr. Yarbrough’s Speech Expressed His Religious Beliefs and Viewpoints on Matters of 

Public Concern

89. Midway through the retirement event, Mr. Yarbrough delivered his remarks to SMSgt 

Fish, SMSgt Fish’s family, and the other attendees. He began by praising the dedication 

of SMSgt Fish’s wife and daughter, quoting from one of the Christian intellectuals that 

inspired his personal faith, C.S. Lewis. 

90. Mr. Yarbrough’s remarks lauded SMSgt Fish’s courage and competence as an airman, 

telling stories and notable events from their shared time in the Air Force. He especially 

praised SMSgt Fish’s steadfastness, courage, and integrity while in the Honor Guard in 

the face of adversity. 

91. His remarks next turned to encouraging people to practice in their own lives the courage 

and virtue that SMSgt Fish exemplified, a practice he stated is particularly necessary at 

this moment in time. 

92. In keeping with that theme, he expressed his personal concerns about the negative impact 

of politicization within the military, and how it tends to squelch the courage, integrity, 

and competence that SMSgt Fish exemplified. He worried that “radical” factions in “our 

wider culture” have “brought the culture war inside the DoD,” and that politicization of 

the military would be “a death knell for courage and competence.” 

93. To support his views, he drew on the teachings and thought of Eastern Orthodox 

Christian and writer Aleksandr Solzhenitsyn, famously the author of Live Not by Lies. 

Motivated by their shared faith as Christians, Mr. Yarbrough echoed Solzhenitsyn 

regarding the corrosive cultural consequences of dishonesty and self-deception. He 

warned against a growing “cancel culture” in the military that, in his view, undermines 

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truth and integrity. This cancel culture pressures military members to deceive themselves 

about objective realities they know to be true (what Mr. Yarbrough termed, “matters of 

basic common sense and wisdom”). Mr. Yarbrough expressed his conviction that lying to 

oneself out of fear makes a person less competent and less courageous. 

94. Mr. Yarbrough gave two examples of objective realities he believes are known intuitively 

to all persons as persons: 1) “men can’t birth babies” and 2) “boys should not be allowed 

in girls’ locker rooms.” 

95. He expressed his faith-based belief that forcing people to deny such self-evident beliefs 

“requires constant . . . self-deception,” which can “habituate [us] to dishonesty” and 

cause us to lose our “grip on objective reality,” making us “less capable and less effective 

in our world. By making the lie a part of ourselves, we become incompetent.” 

96. As part of his warning against politicization, he referenced “recent DoD-wide extremism 

training” that he had attended, in which he “was relieved to see that [his] teammates 

recognized that training for what it was, a thinly veiled flex of political power.” 

Ironically, Mr. Yarbrough’s remarks actually advance the DoD policy of identifying and 

quelling extremism according to its nonpartisan plain meaning. See Lloyd J. Austin III, 

Video: A Message From the Secretary of Defense on Extremism, U.S. Dept. of Def. (Feb. 

19, 2021, at 3:29–59), https://www.defense.gov/News/NewsStories/Article/Article/2509632/a-message-from-the-secretary-of-defense-on-extremism/ 

(“I also want you to share with your leadership your own personal experiences with 

encountering extremists and extremist ideology in the military. . . . And I want your 

leadership to listen to those stories and I want them to listen to any ideas you might have 

to help us. . . .”). 

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97. His expression of these views was an expression of his religious exercise as a devout 

Christian who believes that speaking truth is an essential element of living out his faith 

and was also an expression of his private speech on matters of public concern. 

98. Expressly connecting this theme with faith, he ended his remarks by noting that 

Solzhenitsyn came to realize he was imprisoned in a gulag because he had “gone along 

with falsehoods and euphemisms that made such a brutal society as the Soviet Union 

possible.” 

99. He then shared the following quote from Solzhenitsyn’s play, “Candle in the Wind,” 

which describes a person’s religious and moral duty to speak truth in the world: 

To stand up for truth is nothing. For truth, you must sit in jail. You can 

resolve to live your life with integrity. Let your credo be this: Let the lie 

come into the world, let it even triumph. But not through me. The simple 

step of a courageous individual is not to take part in the lie. One word of 

truth outweighs the world. 

100. In his remarks at the event, Mr. Yarbrough believed he was living out Solzhenitsyn’s 

example that religion required one not simply to believe in truth, but also to profess it in 

the world. 

101. While giving his remarks, Mr. Yarbrough observed a positive reaction from attendees, 

many of whom he knew shared his faith-based values. 

102. Immediately after the event and throughout the post-ceremony events, he experienced 

only positive interactions with the attendees, who complimented his remarks. He was 

even asked by the spouse of another active-duty member in attendance if he would speak 

at her husband’s upcoming retirement ceremony from the Air Force. 

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The Air Force’s Investigation Was Unreasonable and Arbitrary 

103. One week after the event, SMSgt Fish called Mr. Yarbrough to inform him that an 

individual(s) from the Naval quartet had filed a complaint against him due to his remarks. 

104. Mr. Yarbrough immediately called his supervisor regarding the incident and discovered 

that his supervisor had already been notified of the complaint the night before. 

105. On Friday, July 9, 2021, Mr. Yarbrough received an email from Major Derek Law, who 

explained that he was “directed” by Mr. Yarbrough’s supervisor to perform an inquiry 

into the retirement event remarks. 

106. On Monday, July 26, 2021, Lieutenant Colonel (Lt Col) Peter J. Schmick emailed Mr. 

Yarbrough the following excerpts from statements made by unspecified persons 

apparently present for his remarks: “members were offended by the guest speakers 

comments”; “he definitely shared some personal view points that should not have been 

shared in the retirement ceremony”; “informed that there were some inappropriate 

comments made by the guest speaker at the subject event targeted at the LGBT 

community and other political issues currently taking place in our country”; “at this event 

feeling extremely uncomfortable and insulted”; “let you know that such comments are 

unnecessary and have no place in a ceremony like this”; and “his comments were hurtful 

to a group of people.” 

107. The email excluded the following positive assessment of the remarks from one witness: 

“professional and respectful. I was not offended by it and there was nothing said or done 

that was unethical, illegal, or immoral. . . . It is hard to understand how any person may 

have been offended by his comments as they were not directed at any person or group.” 

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The Letter of Admonishment Criticizing Mr. Yarbrough’s Religious Speech and Speech on 

Matters of Public Concern 

108. In September 2021, Mr. Yarbrough, in his civilian capacity, received a certified mail 

package at home containing a Letter of Admonishment, dated August 25, 2021, signed by 

Lt Col Schmick. 

109. The LOA reprimanded Mr. Yarbrough for his retirement ceremony remarks, made while 

in civilian status, and stated that Mr. Yarbrough’s speech had been “insubordinate, 

disrespectful, and unbecoming for an officer in the military.” 

110. The LOA condemned specific remarks, including his references to “radical political 

factions,” “how the military is fostering a culture of ‘incompetence and cowardice,’” and 

“DoD-wide extremism training as a ‘thinly veiled flex of political power.’” 

111. The LOA stated that Mr. Yarbrough’s expressed viewpoints were improper because 

“[m]ilitary members are to remain apolitical and must respect the chain of command.” 

112. The LOA referenced “several military members expressing displeasure with the contents 

of [Mr. Yarbrough’s] speech.” While acknowledging that Mr. Yarbrough had the right 

“as an American Citizen to voice [his] opinions concerning political matters,” the LOA 

stressed that “[he] cannot imply those beliefs are representative of the Air Force, and 

[his] statements cannot be contemptuous.” 

113. The LOA instructed Mr. Yarbrough to “exercise better judgement and use appropriate 

venues for expressing personal views that align and comport with AFI 51-508 and 

AFI 1-1 for exercising [his] free speech rights.” 

114. In addition to the LOA, Lt Col Schmick attached six witness statements and excerpts 

from the initial complaint. In addition to the witness who found the speech to be 

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“professional and respectful,” two other witnesses understood the speech as an expression 

of Mr. Yarbrough’s religious beliefs. One noted that Mr. Yarbrough’s “personal/religious 

views seemed to be in conflict with the rights of the LGBTQ community.” Another noted 

that “his message had a religious tone to it.” 

115. On November 5, 2021, Mr. Yarbrough submitted a response to Lt Col Schmick, 

requesting that the Air Force rescind the LOA. This response was four pages long, 

arguing that the LOA was outside the Air Force’s jurisdiction, that his speech was 

protected under the First Amendment, and that his remarks had been apolitical. 

116. On December 17, 2021, Staff Judge Advocate Andrea M. Hall denied Mr. Yarbrough’s 

request in a short, two-paragraph response. As authority to discipline him while in 

civilian status, the response cited AFI 36-2907, para. 2.1, which states: 

Use of Administrative Counselings, Admonishments, and Reprimands. 

General officers, commanders, first sergeants, supervisors, and other 

individuals in the member’s administrative or operational chain of 

command can issue administrative actions. This includes issuing 

administrative counseling, admonishment, and reprimands to ARC 

Airmen who commit an offense while in civilian status. 

Chief of Space Operations, U.S. Space Force Finally Rejected Mr. Yarbrough’s Appeal of 

the LOA 

117. On January 26, 2022, Mr. Yarbrough submitted his first appeal to Colonel James T. 

Horne. It was a four-page response to the December 17, 2021 decision. He argued in 

detail that the Air Force did not have jurisdiction over him at the time he made his 

speech, that his speech was protected by the First Amendment, and that punishing him for 

his speech was unlawful viewpoint discrimination. 

118. On February 4, 2022, Staff Judge Advocate Colonel Ted Richard issued a one-page 

denial of that appeal. The denial again cited AFI 36-2907 as granting the Air Force 

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jurisdiction over Mr. Yarbrough while in civilian status. The denial also argued that 

criminal jurisdiction was inapplicable to the case because the LOA was an administrative 

action. Lastly, it rejected out of hand Mr. Yarbrough’s free speech claim, emphasizing 

that “courts have been quick to reiterate that servicemembers’ rights are not the same as 

their civilian counterparts. OpJAGAF 2013-3, citing United States v. Zimmerman, 43 MJ 

782, 785 (ACCA 1996) (citing United States v. Priest, 45 C.M.R. 338 (CMA 1972)).” 

119. On April 12, 2022, Mr. Yarbrough filed a second appeal with a five-page letter to 

Brigadier General (Brig Gen) Douglas A. Schiess. In this appeal, he again argued the lack 

of jurisdiction and claimed protection under the First Amendment. He also refuted 

Colonel Richard’s claim that he had fewer First Amendment rights, noting that this 

analysis was inapplicable to remarks that he gave while in a purely civilian status. 

120. On April 18, 2022, Brig Gen Schiess denied the appeal in a mere two sentences, 

informing Mr. Yarbrough that, after consulting with his legal team, he had decided to 

uphold the LOA. 

121. On July 20, 2022, Mr. Yarbrough submitted a third appeal to Lieutenant General (Lt 

Gen) Stephen Whiting. This six-page appeal reiterated the earlier jurisdictional argument 

and expanded on his argument that his speech was protected under the First Amendment. 

This appeal also argued that the LOA was an arbitrary and capricious disciplinary action 

violating Mr. Yarbrough’s right to free speech. 

122. On July 29, 2022, Lt Gen Whiting denied Mr. Yarbrough’s appeal in a four-sentence 

response, again citing AFI 36-2907 and “applicable law.” 

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123. On October 20, 2022, Mr. Yarbrough submitted his fourth and final appeal to the Chief of 

Space Operations, U.S. Space Force. This six-page appeal reiterated his prior arguments, 

as well as an argument that the LOA was arbitrary and capricious. 

124. On December 16, 2022, Brig Gen Gail E. Crawford, the Director of the Air Force’s 

Military Justice and Discipline division, issued a final denial of that appeal on behalf of 

the current Chief of Space Operations, General B. Chance Saltzman. In that letter, Brig 

Gen Crawford stated that the denial of the appeal was “my final action on [Mr. 

Yarbrough’s] request to rescind the LOA.” 

125. The Air Force’s December 2022 denial was a final action. Additional attempts to appeal 

the LOA would be futile. The shrinking amount of substance in each subsequent denial 

letter reflects the Air Force’s firm and final decision not to rescind the LOA. 

Adverse Impact of the LOA on Mr. Yarbrough’s Career 

126. Unless the LOA is rescinded, it will continue to adversely impact Mr. Yarbrough’s 

career. The LOA in his record also increases the risk of future, more severe adverse 

action, including increasingly severe administrative reprimands, relief for cause from 

leadership positions, denial of promotion, removal from promotion lists, and perhaps 

even criminal prosecution by court-martial. Subsequent adverse actions could also serve 

as the basis for a discharge and could impact his discharge status. The LOA negatively 

impacts both his military and civilian careers, including by precluding future career 

opportunities and advancement. Mr. Yarbrough believes his duties have already been 

reduced as result of the LOA. 

127. Moreover, the issuance of the LOA has already chilled and hindered Mr. Yarbrough’s 

ability to engage in his rights to freedom of speech and religion. The issuance of the LOA 

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for his purely civilian religious speech has created a threat that his civilian speech or 

religious practice could trigger additional military discipline. 

128. Further, as a civilian attorney, he may be required to work for clients dealing with First 

Amendment issues, including free speech or religious liberty cases related to the Air 

Force. The issuance of the LOA for actions engaged in while in his civilian capacity 

creates a threat that his civilian advocacy could subject him to additional military 

discipline. 

FIRST CAUSE OF ACTION 

AFI 36-2907, Para. 2.1, Exceeds Statutory Jurisdiction 

(APA Jurisdictional Claim, 5 U.S.C. § 706(2)(C)) 

129. Mr. Yarbrough incorporates by reference paragraphs 1–128 of this complaint as though 

fully set forth herein. 

130. The DoD, Department of the Air Force, and U.S. Space Force are “agencies” under the 

Administrative Procedure Act (APA), 5 U.S.C. § 701(b). 

131. The LOA complained of herein is an “agency action” under 5 U.S.C. § 551(13) as an 

“order” or “sanction” under 5 U.S.C. § 551(4), which was “made reviewable by statute,” 

or is a “final agency action for which there is no other adequate remedy in a court” under 

5 U.S.C. § 704. 

132. Defendants’ action is “final” because Mr. Yarbrough appealed the issuance of the LOA 

up the chain of command until receiving a final rejection on December 16, 2022, stating 

that the denial of the appeal was a “final action on your client’s request to rescind the 

LOA.” Further attempts to appeal the LOA would be futile. 

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133. Mr. Yarbrough has suffered and will continue to suffer concrete, actual, particularized 

harm from the LOA. Not only is the LOA a lasting negative mark on his record and 

reputation, but it also will hinder his ability to receive promotions and permanently 

restrict his career growth as a commissioned officer and in his civilian career. 

134. The LOA complained of herein was issued against Mr. Yarbrough “in excess of statutory 

jurisdiction, authority, or limitations” under 5 U.S.C. § 706(2)(C). 

135. Defendants have not cited any statutory authorization that would permit military 

discipline against Mr. Yarbrough for his activities while in a purely civilian status. 

136. The only authority that Defendants have cited for issuance of the LOA is Department of 

the Air Force Instruction 36-2907, para. 2.1, which purports to permit the issuance of 

“administrative counseling, admonishment, and reprimands to Air Reserve Component 

(ARC) Airmen who commit an offense while in civilian status.” That paragraph of the 

regulation exceeds the Air Force’s statutory authority, making it null and void and a 

violation of the APA. 

137. Pursuant to 10 U.S.C. § 9013(g), “The Secretary of the Air Force may . . . prescribe 

regulations to carry out his functions, powers, and duties under this title.” There is no 

support, either in the text of this Code provision or its legislative history, for Defendants’ 

position that Congress intended to grant a service secretary authority to expand the Air 

Force’s jurisdictional reach over reservists in a civilian status. 

138. The only statutory authority granting the Armed Forces jurisdiction to exercise military 

jurisdiction over reservists subject to adverse administrative action is contained in the 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 802, which grants military 

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jurisdiction for adverse administrative action only if a reservist is on active duty, 

participating in inactive-duty training, or performing military duties while receiving 

military pay or allowances and submitting voluntarily to military authority. 

139. Mr. Yarbrough was neither on active duty, nor participating in inactive-duty training at 

the time he made the remarks for which he was disciplined. 

140. Further, he received no military pay or allowances from Defendants for his time spent at 

the event, nor did he submit to military authority, at the time he made the remarks for 

which he was disciplined, nor was he performing military duties. 

141. The UCMJ does not extend military jurisdiction for adverse administrative actions over 

inactive reservists in civilian status. See, e.g., United States v. Hale, 78 M.J. 268, 271 

(C.A.A.F. 2019); United States v. Morita, 73 M.J. 548 (A.F. Ct. Crim. App. 2014); 

Duncan v. Usher, 23 M.J. 29, 34 (C.M.A. 1986) (“[The UCMJ] makes no provision for 

jurisdiction over someone who is ‘essentially’ on active duty. Like pregnancy, active duty 

is an all-or-nothing condition: A Reserve either is on active duty or he is not!”). 

142. Further, “a reservist must be in status to perform duty. It is status, as opposed to duty, that 

determines when pay and other entitlements and benefits accrue.” United States v. Cline, 

26 M.J. 1005, 1007 (A.F.C.M.R. 1988), aff’d, 29 M.J. 83 (C.M.A. 1989). 

143. In addition, Defendants’ ultra vires assertion of power in issuing the LOA to 

Mr. Yarbrough contradicted the Air Force’s own admission in a prior case that its own 

regulations do not apply to the “off-duty conduct” of members who are not on active 

duty. See Wilson v. James, 139 F. Supp. 3d 410, 429 (D.D.C. 2015), aff’d, No. 15-5338, 

2016 WL 3043746 (D.C. Cir. May 17, 2016) (“Plaintiff claims that AF 1–1 did not apply 

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to him in civilian status, and he was in civilian status when he made his Facebook posts 

that resulted in [a Letter of Reprimand]; [The Air Force] agree[s.]”). 

144. Similarly, in January 2022, the Department of the Army Suitability Evaluation Board 

(DASEB) acknowledged key statutory limitations on military jurisdiction, finding 

jurisdictional overreach and retracting administrative discipline against an Army National 

Guard captain who was disciplined for his participation in a Black Lives Matter protest in 

his off-duty status (e.g., non-Title-10 duty status). See Record of Proceedings, Dept. of 

the Army: Suitability Evaluation Board (DASEB), Docket No. AR20210006717, 

https://coloradonewsline.com/wpcontent/uploads/2022/01/Kennedy_DASEB_Decision_03JAN22_redacted-1.pdf. 

145. That Mr. Yarbrough wore a uniform at the time he made his remarks is insufficient to 

establish jurisdiction, as no statute grants Defendants jurisdictional authority simply 

because a person wears a uniform. Defendants’ own regulations permit civilians to wear 

military uniforms on occasion. See, e.g., AFI 36-2903, para 11.1.2 (authorizing a reservist 

in civilian status to wear the uniform during “occasions of military ceremonies” and 

“social functions and informal gatherings of a military nature”). 

146. Mr. Yarbrough has no adequate or available administrative remedy or remedy at law to 

redress the injuries he is suffering and will continue to suffer because of the LOA, 

including undue hardship, reputational injury, and irreparable harm to his military and 

civilian career prospects. 

147. Mr. Yarbrough is entitled to an injunction setting aside the LOA; to a declaration that 

AFI 36-2907, para. 2.1, exceeds statutory jurisdiction under 5 U.S.C. § 706(2)(C); and to 

a declaration that the military has no future authority to take disciplinary actions against 

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him for his speech done while in civilian status. Additionally, he is entitled to damages in 

an amount to be determined by the evidence and this Court, and the reasonable costs of 

this lawsuit, including reasonable attorneys’ fees. 

SECOND CAUSE OF ACTION 

The LOA Violates the Religious Freedom Restoration Act (RFRA) 

(RFRA Claim, 42 U.S.C. § 2000bb-1) 

148. Mr. Yarbrough incorporates by reference paragraphs 1–147 of this complaint as though 

fully set forth herein. 

149. The Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., prohibits 

the “government” from “substantially burden[ing] a person’s exercise of religion even if 

the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb-1. 

150. RFRA applies to Defendants as part of the “government,” which includes “a branch, 

department, agency, instrumentality, and official (or other person acting under color of 

law) of the United States.” 42 U.S.C. § 2000bb-2(1). 

151. RFRA broadly defines the “exercise of religion” to include “any exercise of religion, 

whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. 

§ 2000bb-2(4) (incorporating the definition in 42 U.S.C. § 2000cc-5(7)(A)). It applies to 

all sincere religious claims. See Gonzales v. O Centro Espirita Beneficente Uniao do 

Vegetal, 546 U.S. 418, 430–31 (2006). 

152. “[F]ederal courts have no business addressing . . . whether the religious belief asserted in 

a RFRA case is reasonable.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 724 

(2014). 

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153. Although RFRA does not define “substantial burden,” if a person “face[s] serious 

disciplinary action” for exercising religion, a substantial burden exists. Holt v. Hobbs, 

574 U.S. 352, 361 (2015). 

154. RFRA permits the substantial burden of religion only if government can “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). 

155. Mr. Yarbrough’s remarks during SMSgt Fish’s retirement ceremony were a direct 

exercise of his sincerely held religious beliefs and duties, as described herein. 

156. Defendants’ formal, written admonishment of Mr. Yarbrough, a commissioned reserve 

officer, labeling his exercise of religion as “insubordinate, disrespectful, and unbecoming 

of an officer in the military,” was serious enough to create a substantial burden on his 

religious exercise. 

157. Defendants cannot demonstrate a compelling interest in substantially burdening 

Mr. Yarbrough’s religious exercise here, where he shared his remarks in his private 

capacity, on private property, during a friend’s retirement ceremony, to a small group 

consisting mostly of the retiree’s family and friends. 

158. Defendants cannot demonstrate that formally admonishing Mr. Yarbrough was the least 

restrictive means of furthering any purported compelling interest because multiple, lesser 

restrictive methods could have furthered any purported interest. 

159. Mr. Yarbrough has no adequate or available administrative remedy or remedy at law to 

redress the injuries he is suffering and will continue to suffer because of the LOA, 

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including undue hardship, reputational injury, and irreparable harm to his military and 

civilian career prospects. 

160. Mr. Yarbrough is entitled to an injunction setting aside the LOA; to a declaration that 

Defendants violated his rights under RFRA; and to an injunction against future 

substantial burdens on his religious exercise. Additionally, he is entitled to damages in an 

amount to be determined by the evidence and this Court, and the reasonable costs of this 

lawsuit, including reasonable attorneys’ fees. 

THIRD CAUSE OF ACTION 

The LOA Is Contrary to the Free Exercise of Religion

(APA Constitutional Claim, 5 U.S.C. § 706(2)(B)) 

161. Mr. Yarbrough incorporates by reference paragraphs 1–160 of this complaint as though 

fully set forth herein. 

162. The LOA complained of herein is a final, reviewable agency action that is causing 

actionable injury to Mr. Yarbrough, as set forth in paragraphs 126-128. 

163. The LOA was an agency action that was “contrary to constitutional right.” 5 U.S.C. 

§ 706(2)(B). Specifically, it was contrary to Mr. Yarbrough’s rights under the Free 

Exercise Clause of the First Amendment. 

164. “Congress shall make no law . . . prohibiting the free exercise [of religion].” U.S. Const. 

amend. I. 

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

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

see also Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) 

(noting that the loss of First Amendment freedoms justifies a preliminary injunction). 

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166. “[A] plaintiff may carry the burden of proving a free exercise violation in various ways, 

including by showing that a government entity has burdened his sincere religious practice 

pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’” Kennedy v. Bremerton 

Sch. Dist., 142 S. Ct. 2407, 2421–22 (2022) (citing Church of Lukumi Babalu Aye, Inc. v. 

Hialeah, 508 U. S. 520, 546 (1993)). 

167. “Government fails to act neutrally when it proceeds in a manner intolerant of religious 

beliefs or restricts practices because of their religious nature.” Fulton v. City of 

Philadelphia, Pennsylvania, 141 S. Ct. 1868, 1877 (2021). “The Free Exercise Clause 

bars even ‘subtle departures from neutrality’ on matters of religion.” Masterpiece 

Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018) (quoting Lukumi ̧ 

508 U.S. at 534). 

168. “A [policy] 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., Dept. of Human Res. of Or. 

v. Smith, 494 U.S. 872, 884 (1990)). Further, a policy is not generally applicable “if it 

prohibits religious conduct while permitting secular conduct that undermines the 

government’s asserted interests in a similar way.” Id. 

169. If a policy lacks neutrality or general applicability, courts “will find a First Amendment 

violation unless the government can satisfy ‘strict scrutiny’ by demonstrating its course 

was justified by a compelling state interest and was narrowly tailored in pursuit of that 

interest.” Kennedy, 142 S. Ct. at 2422. 

170. Mr. Yarbrough’s remarks during SMSgt Fish’s retirement ceremony were a direct 

exercise of his sincerely held religious beliefs and duties, as described herein. 

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171. The LOA used to discipline him for his retirement ceremony remarks substantially 

burdened his sincerely held exercise of religion by admonishing him for engaging in that 

exercise. Further, the LOA flowed from a policy that was neither neutral nor generally 

applicable. 

172. The LOA was not based on a neutral policy because it restricted Mr. Yarbrough’s 

conduct due to its religious nature, calling it “contemptuous” and threatening him with 

additional military discipline should he commit similar conduct in the future. 

173. The LOA was not based on a generally applicable policy because Defendants have 

exempted similarly situated servicemembers engaging in non-religious conduct from 

discipline and have encouraged certain military members—while on active duty and in 

uniform—to publicly engage in non-religious criticism of similar military policies, 

drawing significant media attention. 

174. A notable example of the lack of general applicability in Defendants’ policies occurred in 

2019, when Defendants permitted servicemembers in uniform to participate without 

discipline in a political parade “to show opposition to the Trump Administration’s ban on 

transgender troops.” See Ramon Galindo and Monica Garske, San Diego Unites for 2019 

Pride Parade, July 13, 2019, available at https://www.nbcsandiego.com/news/local/sandiego-unites-for-pride-parade-2019/132618; see also Shawn Fleetwood, The Air Force is 

Using Taxpayer Money to Fly Service Members to Branch ‘Pride’ Events, THE 

FEDERALIST, available at https://thefederalist.com/2023/06/06/the-air-force-is-usingtaxpayer-money-to-fly-service-members-to-branch-pride-events/ (where the director of 

the Air Force’s Office of Diversity and Inclusion permitted the use of “unit funds” for 

travel expenses of service members to the DAF Pride events). 

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175. Further, the military has permitted members to engage in other kinds of political speech 

and expressive conduct while on activity duty, in uniform, and while using their military 

title and position. 

176. In March 2021, then-Sergeant Major of the Army Michael Grinston used his official 

Twitter account to criticize conservative political commentator Tucker Carlson by name. 

The tweet was shared over 3,000 times and liked by over 12,000 users. See Sergeant 

Major of the Army (@USArmySMA), TWITTER (March 10, 2021, 10:00 PM), 

https://twitter.com/USArmySMA/status/1369860649292083206. 

177. In similar fashion, the U.S. DoD used its official government website to promote thenPentagon Press Secretary John F. Kirby’s “smite[]” to Carlson’s comments on his cable 

television talk show. See Jim Garamone, Press Secretary Smites Host that Dissed 

Diversity in U.S. Military, U.S. DEPT. OF DEF. (March 11, 2021), 

https://www.defense.gov/News/News-Stories/Article/Article/2534159/press-secretarysmites-host-that-dissed-diversity-in-us-military/. Rather than limit or discipline this 

political speech, the military celebrated it. 

178. The LOA cannot survive strict scrutiny because Defendants cannot demonstrate that the 

burden placed on Mr. Yarbrough’s religious exercise was narrowly tailored to serve a 

compelling state interest. Further, in light of Defendants’ arbitrary and capricious 

application of its policies against speech critical of military policies, the LOA was not 

rationally related to serve a legitimate state interest.

179. Mr. Yarbrough has no adequate or available administrative remedy or remedy at law to 

redress the injuries he is suffering and will continue to suffer because of the LOA, 

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including undue hardship, reputational injury, and irreparable harm to his military and 

civilian career prospects. 

180. Mr. Yarbrough is entitled to an injunction setting aside the LOA; to a declaration that 

Defendants violated his constitutional right to the free exercise of religion; and to an 

injunction against future substantial burdens on his religious exercise. Additionally, he is 

entitled to damages in an amount to be determined by the evidence and this Court, and 

the reasonable costs of this lawsuit, including reasonable attorneys’ fees. 

FOURTH CAUSE OF ACTION 

The LOA Is Contrary to the Freedom of Speech 

(APA Constitutional Claim, 5 U.S.C. § 706(2)(B)) 

181. Mr. Yarbrough incorporates by reference paragraphs 1–180 of this complaint as though 

fully set forth herein. 

182. The LOA complained of herein is a final, reviewable agency action that is causing 

actionable injury to Mr. Yarbrough, as set forth in paragraphs 126-128. 

183. The LOA was an agency action that was “contrary to constitutional right.” 5 U.S.C. 

§ 706(2)(B). Specifically, it was contrary to Mr. Yarbrough’s rights under the Free 

Speech Clause of the First Amendment. 

184. “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. 

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

unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373; see also Palmer, 

579 F.3d at 506 (noting that the loss of First Amendment freedoms justifies a preliminary 

injunction). 

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186. All citizens have a right to hold and express their personal political beliefs. See Cohen v. 

California, 403 U.S. 15, 24 (1971). “[L]earning how to tolerate speech . . . of all kinds is 

‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a 

tolerant citizenry.’” Kennedy, 142 S. Ct. at 2430. 

187. “It is axiomatic that the government may not regulate speech based on its substantive 

content or the message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 

U.S. 819, 828 (1995). 

188. “Military personnel retain their basic rights and freedoms as American citizens, subject 

only to those limitations necessary in the interests of good order and discipline, the 

unique components of their specialized environment.” Stolte v. Laird, 353 F. Supp. 1392, 

1402–03 (D.D.C. 1972). 

189. “[R]egulations that ‘selectively grant[ ] safe passage to speech of which [officials] 

approve while curbing speech of which they disapprove’ are impermissible, even in the 

military.” Nieto v. Flatau, 715 F. Supp. 2d 650, 655 (E.D.N.C. 2010) (quoting Perry 

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)). 

190. In addition, “the First Amendment protects a public employee’s right, in certain 

circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. 

Ceballos, 547 U.S. 410, 417 (2006). This is especially true if speech is made in a public 

employee’s capacity as a private citizen on a matter of public concern, even if it is critical 

in tone. See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968). 

191. That a public employee’s speech “touche[s] on matters related to public employment [is] 

not enough to render it government speech. . . . [T]he ‘critical question . . . is whether the 

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speech at issue is itself ordinarily within the scope of an employee’s duties.’” Kennedy, 

142 S. Ct. at 2424 (quoting Lane v. Franks, 573 U.S. 228, 231 (2014)). 

192. When government “imposes content-based restrictions on speech, those provisions can 

stand only if they survive strict scrutiny, ‘which requires the Government to prove that 

the restriction furthers a compelling interest and is narrowly tailored to achieve that 

interest.’” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015) (quoting Ariz. Free 

Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011)). 

193. Under any relevant standard—whether Mr. Yarbrough spoke as a private citizen, a 

reservist in a purely civilian status, or an off-duty public employee—Defendants violated 

the First Amendment by issuing the LOA to him for the content of his remarks. 

194. Mr. Yarbrough had a weighty free-speech interest at his friend’s retirement ceremony to 

speak openly and candidly about his sincerely held religious beliefs and political 

viewpoints. 

195. He spoke in a private venue to a small group of like-minded friends and family of 

SMSgt Fish, with few other military personnel present and with no chance of causing 

prejudice to good order and discipline. 

196. He acted in his personal, civilian capacity when he made his remarks. He spoke about his 

personal beliefs and viewpoints, informed by his faith. 

197. Although he wore a uniform, that mere fact does not transform his private remarks into 

official government speech, particularly in light of all the other factual circumstances. 

Even Defendants’ own regulations permit civilians to wear military uniforms during 

some social occasions. See, e.g., AFI 36-2903, para 11.1.2. 

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198. Mr. Yarbrough spoke about major matters of public concern. He discussed leadership 

challenges in the military in light of today’s “culture wars” and “cancel culture.” His 

remarks encouraged his listeners to practice courage and integrity in their affairs, and he 

warned about the dangers of political radicalization within the DoD. His comments 

touched on what he considered pressing public concerns of the day. Drawing on themes 

from Solzhenitsyn and the Christian Natural Law tradition, he discussed the wider 

culture’s militant disregard for truth and the corrosive effect of such disregard on those 

who practice constant self-deception. 

199. Defendants would not have issued the LOA to Mr. Yarbrough except for his expressed 

viewpoint and the content of his remarks at the retirement ceremony. 

200. The LOA faulted the parts of his remarks that Defendants believed were too “political” 

because “[m]ilitary members are to remain apolitical and must respect the chain of 

command.” Defendants disapproved of the viewpoints expressed in his remarks, 

describing them as “contemptuous,” and the LOA referenced “several military members 

expressing displeasure with the contents of [his] speech.” 

201. The LOA Mr. Yarbrough received by certified mail at his home in Texas while in his 

civilian capacity was accompanied by six witness statements from the Air Force 

investigation, which contained the comments previously highlighted in Lt Col Schmick’s 

July 26 email: “members were offended by the guest speakers comments;” “he definitely 

shared some personal view points that should not have been shared in the retirement 

ceremony”; “informed that there were some inappropriate comments made by the guest 

speaker at the subject event targeted at the LGBT community and other political issues 

currently taking place in our country”; “at this event feeling extremely uncomfortable and 

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insulted”; “let you know that such comments are unnecessary and have no place in a 

ceremony like this”; and “his comments were hurtful to a group of people.” These 

concerns were all based on the viewpoints expressed by Mr. Yarbrough in his remarks. 

202. The LOA cannot survive strict scrutiny review because Defendants cannot demonstrate 

under these facts that the discipline issued based on Mr. Yarbrough’s purely civilian, 

personal remarks in a small, private venue was narrowly tailored to serve a compelling 

state interest. Further, Defendants have exempted similarly situated servicemembers from 

discipline based on the content of their “political protest” speech when officials have 

approved of the viewpoints being expressed. 

203. An example where Defendants encouraged military members—while on active duty and 

in uniform—to publicly engage in criticism of certain military policies occurred in 2019, 

when Defendants permitted servicemembers in uniform to participate without discipline 

in a political parade “to show opposition to the Trump Administration’s ban on 

transgender troops.” See Ramon Galindo and Monica Garske, San Diego Unites for 2019 

Pride Parade, July 13, 2019. 

204. Even when soldiers openly protested in uniform on duty, the military has chosen, in some 

instances to not discipline participating soldiers. In June 2020, several National Guard 

soldiers took a knee during a protest while on active duty. See Matthew Cox, Guard 

Won’t Punish Soldiers Who Took a Knee at Protests, MILITARY.COM (June 8, 2020), 

https://www.military.com/daily-news/2020/06/08/guard-wont-punish-soldiers-who-tookknee-protests.html. Army Secretary Ryan McCarthy told reporters that “[w]e’re not 

allowed really to protest in uniform,” but the Guardsmen involved did not receive any 

discipline for openly demonstrating in uniform and on active orders. See id. 

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205. The LOA—issued due to the content of Mr. Yarbrough’s remarks—is chilling his future 

speech (and may chill the speech of others) due to reasonable concerns about a further 

reprimand or more severe consequences or penalties. 

206. As a civilian attorney, Mr. Yarbrough’s work may require him to make additional 

statements in an advocacy capacity that might touch on similar military-related issues of 

public concern. The threat of future discipline also chills his speech in that arena. 

207. Mr. Yarbrough has no adequate or available administrative remedy or remedy at law to 

redress the injuries he is suffering and will continue to suffer because of the LOA, 

including undue hardship, reputational injury, and irreparable harm to his military and 

civilian career prospects. 

208. Mr. Yarbrough is entitled to an injunction setting aside the LOA; to a declaration that 

Defendants violated his constitutional right to the freedom of speech; and to an injunction 

against future burdens on his free speech. Additionally, he is entitled to damages in an 

amount to be determined by the evidence and this Court, and the reasonable costs of this 

lawsuit, including reasonable attorneys’ fees. 

FIFTH CAUSE OF ACTION 

The LOA Violates Defendant’s Own Regulations 

(APA Claim Not in Accordance with Law, 5 U.S.C. § 706(2)(A)) 

209. Mr. Yarbrough incorporates by reference paragraphs 1–208 of this complaint as though 

fully set forth herein. 

210. The LOA complained of herein is a final, reviewable agency action that is causing 

actionable injury to Mr. Yarbrough, as set forth in paragraphs 126-128. 

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211. The APA prohibits agency actions that are “not in accordance with law.” 5 U.S.C. 

§ 706(2)(A). The LOA is not in accordance with Defendants’ own regulations. 

212. The LOA purported to discipline Mr. Yarbrough for failing to “express[] personal views 

that align and comport with AFI 51-508 and AFI 1-1;” however, Defendants violated 

those same regulations when disciplining him for his religious exercise and private 

speech on matters of public concern. 

213. Defendants’ regulations recognize that military members retain their constitutional rights 

as citizens, with the right to practice religion and express religious beliefs, as well as to 

hold and express personal beliefs and opinions within wide, reasonable limits. 

214. Regarding the free exercise of religion by military members, Defendants’ regulations 

hold that “[e]very Airman . . . should confidently practice [their] own beliefs while 

respecting others whose viewpoints differ from [their] own.” AFI 1-1, para. 2.11 

(7 Aug 12). That same paragraph affirms that “every Airman . . . has the right to 

individual expressions of sincerely held beliefs, to include conscience, moral principles 

or religious beliefs, unless those expressions would have an adverse impact on military 

readiness, unit cohesion, good order, discipline, health and safety, or mission 

accomplishment.” Id. 

215. DoD Instruction (DoDI) 1300.17, para. 1.2b (1 Sep 20), outlines that same guidance and 

further guarantees that “[a] Service member’s expression of such 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” (emphasis added). 

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216. Regarding the freedom of speech by military members, Defendants’ regulations require 

that “[a] Service member’s right of expression should be preserved to the maximum 

extent possible in accordance with the First Amendment of the Constitution . . . 

consistent with good order and discipline and the national security.” DoDI 1325.06, para. 

3b (20 Dec 21); see also DoDD 1344.10 (19 Feb 08) (detailing guidance for political 

activities). 

217. In keeping with that DoD guidance, Air Force regulations authorize servicemembers to 

“express a personal opinion on political candidates and issues, but not as a representative 

of the AF or DoD.” AFI 51-508, para. 2.3.1 (12 Oct 18). While members are prohibited 

from certain partisan activities, no guidance prohibits a member in a purely civilian 

capacity from speaking out in a non-partisan manner on matters of public concern. 

218. As described herein, Mr. Yarbrough spoke in his personal capacity, at a private event, on 

private property, to a tiny audience of mostly like-minded friends and family. He spoke 

about his personal religious beliefs on issues of public concern and did not discuss 

partisan matters. Nor did his comments in any way advocate violence, illegal 

discrimination, or extremist ideologies. 

219. In disciplining him with an LOA—an “adverse personnel action”—Defendants have 

failed to follow their own regulations. They have failed to recognize Mr. Yarbrough’s 

rights to freely speak about his religion and sincerely held beliefs, and to discuss issues of 

public concern according to his personal political beliefs and in a non-partisan manner. 

220. Mr. Yarbrough has no adequate or available administrative remedy or remedy at law to 

redress the injuries he is suffering and will continue to suffer because of the LOA, 

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including undue hardship, reputational injury, and irreparable harm to his military and 

civilian career prospects. 

221. Mr. Yarbrough is entitled to an injunction setting aside the LOA; to a declaration that 

Defendants have violated their own regulations; and to a declaration that the military has 

no future authority to take disciplinary actions against him for his exercise of religion and 

his freedom of speech. Additionally, he is entitled to damages in an amount to be 

determined by the evidence and this Court, and the reasonable costs of this lawsuit, 

including reasonable attorneys’ fees. 

SIXTH CAUSE OF ACTION 

The LOA Is Arbitrary, Capricious, and an Abuse of Discretion 

(APA Claim Not in Accordance with Law, 5 U.S.C. § 706(2)(A)) 

222. Mr. Yarbrough incorporates by reference paragraphs 1–221 of this complaint as though 

fully set forth herein. 

223. The LOA complained of herein is a final, reviewable agency action that is causing 

actionable injury to Mr. Yarbrough, as set forth in paragraphs 126-128. 

224. The APA prohibits agency actions that are “arbitrary, capricious, [or] an abuse of 

discretion.” 5 U.S.C. § 706(2)(A). Defendants’ issuance of the LOA violated this 

standard for several reasons. 

225. First, the LOA was internally inconsistent. It relied on language in AFI 36-2907, 

para. 2.1, which itself contemplates the discipline of a reservist in civilian status only 

where that reservist has committed an “offense.” While that term is not defined, it 

suggests the sanctioned conduct by the reservist must reach a level of criminality under 

the UCMJ. 

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226. Even for military members on active duty, not every criticism of military policy or 

leadership will rise to the level of an “offense” under the UCMJ. For instance, in United 

States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008), an Army servicemember discussed white 

supremacy with an undercover military investigator and was convicted of violating 

Article 134, UCMJ. The Court of Appeals for the Armed Forces reversed, stating, 

“Evidence that the servicemember exchanged messages with the investigator but did not 

encourage her to join a white supremacist group, overthrow the Government, or take any 

specific action against any person was not legally sufficient to sustain the 

servicemember’s conviction.” This demonstrates the tight nexus required between the 

targeted speech and the military interest in good order and discipline. 

227. Mr. Yarbrough’s remarks did not violate any civilian laws, nor did their substance rise to 

the level of a military violation of the UCMJ. His remarks at a small gathering, warning 

about politicization in the military and encouraging integrity, competence, and courage, 

fall far short of any possible violation of the UCMJ (even if he had been in a military 

duty status, which he was not). These topics represent long-held and important Air Force 

values and encouraging these values cannot be a punishable violation of the UCMJ. 

228. Second, the issuance of the LOA was arbitrary, capricious, or an abuse of discretion 

because it was not based “on a consideration of the relevant factors,” and the agency did 

not engage in “reasoned decisionmaking.” Judulang v. Holder, 565 U.S. 42, 53 (2011). 

229. Defendants interviewed only six witnesses at an event with 25 in attendance, where 

many, if not most, attendees expressed agreement with Mr. Yarbrough’s remarks. 

Defendants did not seek to determine whether most of those individuals found his 

remarks problematic, and they ignored the comments of one witness who testified that 

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Mr. Yarbrough’s remarks were “professional and respectful” and “not directed at any 

person or group.” 

230. Further, the LOA admonishes Mr. Yarbrough for stating that he “fear[ed] . . . ‘radical 

political factions’” influencing the military. Warning against politicization of the military 

is consistent with American military tradition and is not actionable as an “offense.” 

231. Third, the LOA was arbitrary, capricious, or an abuse of discretion because Defendants 

have exempted similarly situated servicemembers from discipline for publicly engaging 

in criticism of similar military policies, even while on active duty, and in uniform. See, 

e.g., Ramon Galindo and Monica Garske, San Diego Unites for 2019 Pride Parade, July 

13, 2019 (documenting uniformed servicemembers participating in a political parade “to 

show opposition to the Trump Administration’s ban on transgender troops”); Cox, Guard 

Won’t Punish Soldiers Who Took a Knee at Protests, June 8, 2020 (reporting that Army 

National Guardsmen who openly protested while in uniform and on duty would not 

receive punishment). 

232. Mr. Yarbrough has no adequate or available administrative remedy or remedy at law to 

redress the injuries he is suffering and will continue to suffer because of the LOA, 

including undue hardship, reputational injury, and irreparable harm to his military and 

civilian career prospects. 

233. Mr. Yarbrough is entitled to an injunction setting aside the LOA; to a declaration that the 

LOA was arbitrary, capricious, or an abuse of discretion; and to a declaration that the 

military has no future authority to take disciplinary actions against him for his speech 

done while in civilian status. Additionally, he is entitled to damages in an amount to be 

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determined by the evidence and this Court, and the reasonable costs of this lawsuit, 

including reasonable attorneys’ fees. 

SEVENTH CAUSE OF ACTION 

The LOA Violates Mr. Yarbrough’s First Amendment Rights 

(Claim Under U.S. Const. Amend. I) 

234. Mr. Yarbrough incorporates by reference paragraphs 1–233 of this complaint as though 

fully set forth herein. 

235. “Congress shall make no law respecting an establishment of religion or prohibiting the 

free exercise thereof; or abridging the freedom of speech . . . .” U.S. Const. amend. I. 

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

unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373; see also Palmer, 

579 F.3d at 506 (noting that the loss of First Amendment freedoms justifies a preliminary 

injunction).

237. As discussed in the incorporated paragraphs herein, Defendants violated Mr. Yarbrough’s 

rights directly under the First Amendment of the United States Constitution—

specifically, his rights to the Free Exercise of Religion and the Freedom of Speech.

238. Defendants violated Mr. Yarbrough’s religious rights when they burdened his free 

exercise through a non-neutral and non-generally applicable policy.

239. Defendants violated Mr. Yarbrough’s freedom of speech when they disciplined him for 

the viewpoints and content of his remarks, of which they disapproved.

240. Mr. Yarbrough has no adequate or available administrative remedy or remedy at law to 

redress the injuries he is suffering and will continue to suffer because of the LOA, 

including undue hardship, reputational injury, and irreparable harm. 

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241. Mr. Yarbrough is entitled to an injunction setting aside the LOA; to a declaration that 

Defendants violated his rights under the First Amendment; and to an injunction against 

future burdens on his religious exercise and free speech. Additionally, he is entitled to 

damages in an amount to be determined by the evidence and this Court, and the 

reasonable costs of this lawsuit, including reasonable attorneys’ fees. 

PRAYER FOR RELIEF 

WHEREFORE, Mr. Yarbrough respectfully requests that this Honorable Court enter 

judgment against Defendants and provide him with the following relief: 

(A) An injunction setting aside Defendants’ issuance of the Letter of Admonishment (LOA) 

to Mr. Yarbrough and preventing the Defendants from taking future disciplinary actions 

against him for his religious exercise and speech done while in his civilian status; 

(B) A declaratory judgment that Defendants’ issuance of the LOA violated Mr. Yarbrough’s 

rights under the First Amendment to the U.S. Constitution; 

(C) A declaratory judgment that Defendants’ issuance of the LOA violated Mr. Yarbrough’s 

rights under the Religious Freedom Restoration Act; 

(D) A declaratory judgment that Defendants’ issuance of the LOA violated Mr. Yarbrough’s 

rights under the Administrative Procedure Act; 

(E) An order directing Defendants to expunge the LOA and all references to it from Mr. 

Yarbrough’s military records; 

(F) An order declaring that AFI 36-2907, para. 2.1, exceeds statutory jurisdiction under the 

Administrative Procedure Act; 

(G) An order declaring unlawful and setting aside Defendants’ LOA; 

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(H) Nominal damages against General B. Chance Saltzman in his individual capacity under 

Tanzin v. Tanvir, 141 S. Ct. 486 (2020), for the violation of Mr. Yarbrough’s rights under 

the Religious Freedom Restoration Act; 

(I) Mr. Yarbrough’s reasonable attorneys’ fees, costs, and other costs and disbursements in 

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

(J) All other further relief to which Mr. Yarbrough may be entitled. 

Dated: October 3, 2023 Respectfully submitted, 

 By: /s/ Chad Walker 

 CHAD B. WALKER 

 Texas Bar No. 24056484 

 cbwalker@winston.com 

MICHAEL J. WOODRUM 

 Texas Bar No. 24121899 

 mwoodrum@winston.com 

 Motion for Admission Pro Hac Vice To Be Filed 

 COURTNEY E. RIMANN 

Texas Bar No. 24132199 

crimann@winston.com 

Motion for Admission Pro Hac Vice To Be Filed 

WINSTON & STRAWN LLP

2121 N. Pearl Street, Suite 900 

Dallas, TX 75201 

(214) 453-6500 (telephone) 

(214) 453-6400 (telecopy) 

ANTONY BARONE KOLENC

Florida Bar No. 0181358 

tkolenc@avemarialaw.edu 

Motion for Admission Pro Hac Vice Filed 

AVE MARIA SCHOOL OF LAW 

VETERANS AND SERVICEMEMBERS LAW 

CLINIC

1025 Commons Circle

Naples, Florida 34119

Tel: (239) 687-5396

Case 4:23-cv-00876-ALM Document 1 Filed 10/03/23 Page 47 of 48 PageID #: 47
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JEFFREY C. MATEER

Texas Bar No. 13185320

jmateer@firstliberty.org

DAVID J. HACKER

Texas Bar No. 24103323

dhacker@firstliberty.org

MICHAEL D. BERRY

Texas Bar No. 24085835

mberry@firstliberty.org

DANIELLE A. RUNYAN

Texas Bar No. 24134548

drunyan@firstliberty.org

FIRST LIBERTY INSTITUTE

2001 W. Plano Pkwy., Ste. 1600

Plano, Texas 75075

Tel: (972) 941-4444

Counsel for Plaintiff Jace Yarbrough 

 

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