IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION 

__________________________________________ 

 ) 

JACE YARBROUGH ) 

 ) 

Plaintiff, ) 

 ) Case No. 4:23-cv-00876 (ALM) 

 v. ) 

 ) 

THE UNITED STATES SPACE FORCE, ) 

et al., ) 

 ) 

Defendants. ) 

__________________________________________) 

AGENCY AND OFFICIAL-CAPACITY DEFENDANTS’ MOTION TO DISMISS 

The agency and official-capacity defendants move for dismissal pursuant to Federal Rule 

of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure 12(b)(6). Dismissal pursuant to 

12(b)(1) is appropriate for lack of jurisdiction because Plaintiff failed to exhaust his administrative 

remedies. Dismissal pursuant to 12(b)(6) is appropriate because Plaintiff has failed to state a claim. 

The agency and official-capacity defendants respectfully request oral argument on this 

matter. 

 

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TABLE OF CONTENTS 

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

STATUTORY AND REGULATORY BACKGROUND .............................................................. 2

I. The Structure of the United States Military ........................................................................ 2

II. Military Discipline .............................................................................................................. 3

FACTUAL AND PROCEDURAL BACKGROUND.................................................................... 6

STATEMENT OF THE ISSUES.................................................................................................... 9

STANDARDS OF REVIEW ........................................................................................................ 10

ARGUMENT ................................................................................................................................ 10

I. Plaintiff’s Complaint Should Be Dismissed Because Plaintiff Has Not Exhausted 

His Administrative Remedies ........................................................................................... 10

II. Plaintiffs’ Complaint Should Be Dismissed for Failure to State a Claim ......................... 12

A. Plaintiff Has Failed to State a Claim Under the APA (Claims One, Three, 

Four, Five, and Six) .............................................................................................. 12

1. Plaintiff Has Failed to Plausibly Allege that the Air Force Lacks 

Statutory Authority to Administratively Discipline Reservists Not 

on Active-Duty (Claim One) .................................................................... 12

2. Plaintiff Has Failed to Plausibly Allege that the LOA Violates His 

First Amendment Right to Freedom of Speech (Claim Four) .................. 16

3. Plaintiff Has Failed to Plausibly Allege that the LOA Violates His 

First Amendment Right to Freedom of Religion (Claim Three) .............. 19

4. Plaintiff Has Failed to Plausibly Allege that the Letter of 

Admonishment Was Inconsistent with Air Force Regulations 

(Claim Five) .............................................................................................. 22

5. Plaintiff Has Failed to Plausibly Allege that the Letter of 

Admonishment was Arbitrary or Capricious (Claim Six) ........................ 24

B. Plaintiff Has Failed to State a Claim Under RFRA (Claim Two) ........................ 28

C. Plaintiff Has Failed to State a Claim Under the First Amendment (Claim 

Seven) ................................................................................................................... 30

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

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TABLE OF AUTHORITIES 

CASES

A.A. v. Needville Indep. Sch. Dist., 

611 F.3d 248 (5th Cir. 2010) .................................................................................................... 20 

Adkins v. Kaspar, 

393 F.3d 559 (5th Cir. 2004) .................................................................................................... 28 

Albright v. Oliver, 

510 U.S. 266 (1994) .................................................................................................................. 10 

Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 

564 U.S. 721 (2011) .................................................................................................................. 18 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) .................................................................................................................. 10 

Brown v. Glines, 

444 U.S. 348 (1980) ............................................................................................................ 18, 20 

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah., 

508 U.S. 520 (1993) .................................................................................................................. 21 

Coal. for Workforce Innovation v. Walsh, 

No. 1:21-CV-130, 2022 WL 1073346 (E.D. Tex. Mar. 14, 2022) ........................................... 27 

Crawford v. Tex. Army Nat’l. Guard, 

794 F.2d 1034 (5th Cir. 1986) .............................................................................................. 9, 11 

Citizens for Resp. & Ethics in Wash. v. Fed. Election Comm’n, 

993 F.3d 880 (D.C. Cir. 2021) .................................................................................................. 26 

Emp. Div., Dept. of Hum. Res. of Or. v. Smith, 

494 U.S. 872 (1990) ............................................................................................................ 20, 21 

Fernandez–Montes v. Allied Pilots Ass’n, 

987 F.2d 278 (5th Cir. 1993) .................................................................................................... 10 

Gillette v. United States, 

401 U.S. 437 (1971) .................................................................................................................. 21 

Goldman v. Weinberger, 

475 U.S. 503 (1986) ................................................................................................ 16, 18, 19, 20 

Greer v. Spock, 

424 U.S. 828 (1976) ............................................................................................................ 18, 19 

Case 4:23-cv-00876-ALM Document 23 Filed 02/01/24 Page 3 of 39 PageID #: 124
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Heckler v. Chaney, 

470 U.S. 821 (1985) .................................................................................................................. 26 

Henderson v. Kennedy, 

253 F.3d 12 (D.C. Cir. 2001) .................................................................................................... 28 

Hodges v. Callaway, 

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

Huawei Techs. USA, Inc. v. Fed. Commc’ns Comm’n, 

2 F.4th 421 (5th Cir. 2021) ........................................................................................... 24, 25, 26 

Klingenschmitt v. United States, 

119 Fed. Cl. 163 (2014), aff’d, 623 F. App’x 1013 (Fed. Cir. 2015) ................................. 18, 29 

Kreis v. Sec’y of Air Force, 

866 F.2d 1508 (D.C. Cir. 1989) .......................................................................................... 24, 27 

Lawrence v. McCarthy, 

344 F.3d 467 (5th Cir. 2003) .................................................................................................... 11 

Locks v. Laird, 

300 F. Supp. 915 (N.D. Cal. 1969), aff’d, 441 F.2d 479 (9th Cir. 1971) ................................. 18 

Mahoney v. Doe, 

642 F.3d 1112 (D.C. Cir. 2011) ................................................................................................ 29 

Orloff v. Willoughby, 

345 U.S. 83 (1953) .................................................................................................................... 24 

Ortiz v. United States, 

138 S. Ct. 2165 (2018) ................................................................................................................ 6 

Parker v. Levy, 

417 U.S. 733 (1974) ...................................................................................................... 17, 18, 20 

Polnac v. City of Sulphur Springs, 

555 F. Supp. 3d 309 (E.D. Tex. 2021) ........................................................................................ 7

Priest v. Sec’y of Navy, 

570 F.2d 1013 (D.C. Cir. 1977) ................................................................................................ 17 

Reed v. Town of Gilbert, Ariz., 

576 U.S. 155 (2015) .................................................................................................................. 18 

Reilly v. Sec’y of the Navy, 

12 F.Supp.3d 125 (D.D.C. 2014) .............................................................................................. 24 

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Rigdon v. Perry, 

962 F. Supp. 150 (D.D.C. 1997) ......................................................................................... 18, 19

Sligh v. City of Conroe, 

87 F.4th 290 (5th Cir. 2023) ..................................................................................................... 10 

Strickland v. Danzig, 

235 F.3d 1339 (5th Cir. 2000) .................................................................................................. 11 

U.S. Dep’t of Just. v. FLRA, 

955 F.2d 998 (5th Cir. 1992) .............................................................................................. 16, 20 

United States v. Brown, 

55 M.J. 375 (C.A.A.F. 2001) .................................................................................................... 14 

United States v. Czekala, 

42 M.J. 168 (C.A.A.F. 1995) .................................................................................................... 25 

United States v. Gray, 

42 C.M.R. 255 (C.M.A. Aug. 28, 1970) ............................................................................. 17, 20 

United States v. Lee, 

455 U.S. 252 (1982) .................................................................................................................. 20 

United States v. St. Luke’s Episcopal Hosp., 

355 F.3d 370 (5th Cir. 2004) .................................................................................................... 10 

Villarreal v. Wells Fargo Bank, N.A., 

814 F.3d 763 (5th Cir. 2016) .................................................................................................... 10 

Weaver v. United States, 

46 Fed. Cl. 69 (2000) ................................................................................................................ 15 

Williams v. Roche, 

468 F. Supp. 2d 836 (E.D. La. 2007) ........................................................................................ 15

Willoughby v. United States, 

730 F.3d 476 (5th Cir. 2013) .................................................................................................... 10 

Wilson v. James, 

139 F. Supp. 3d 410 (D.D.C. 2015), 

aff’d, 2016 WL 3043746 (D.C. Cir. May 17, 2016) .......................................................... passim 

STATUTES

5 U.S.C. § 706 ........................................................................................................................ passim

10 U.S.C. Ch. 47 ............................................................................................................................. 6 

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10 U.S.C. § 532 ......................................................................................................................... 3, 12 

10 U.S.C. § 616 ............................................................................................................................. 13 

10 U.S.C. § 802 ......................................................................................................................... 6, 15 

10 U.S.C. §§ 816-21 ....................................................................................................................... 6 

10 U.S.C. § 817 ............................................................................................................................... 6 

10 U.S.C. § 851 ............................................................................................................................. 25 

10 U.S.C. § 856 ............................................................................................................................... 6 

10 U.S.C. § 1552 ....................................................................................................................... 6, 11 

10 U.S.C. § 7011 ............................................................................................................................. 2 

10 U.S.C. § 7013 ............................................................................................................................. 2 

10 U.S.C. § 8011 ............................................................................................................................. 2 

10 U.S.C. § 8013 ............................................................................................................................. 2 

10 U.S.C. § 9011 ............................................................................................................................. 2 

10 U.S.C. § 9013 ................................................................................................................. 2, 12, 13 

10 U.S.C. § 9081 ............................................................................................................................. 2 

10 U.S.C. § 9233 ............................................................................................................................. 3 

10 U.S.C. § 10202 ..................................................................................................................... 3, 13 

10 U.S.C. § 12201 ........................................................................................................... 3, 4, 12, 13 

10 U.S.C. § 12641 ........................................................................................................... 3, 4, 12, 13 

10 U.S.C. § 12642 ........................................................................................................................... 3 

10 U.S.C. § 14107 ........................................................................................................................... 5 

10 U.S.C. § 14108 ................................................................................................................... 13, 14 

42 U.S.C. §§ 2000bb et seq........................................................................................................... 28 

42 U.S.C. § 2000bb-1 ................................................................................................................... 28 

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RULES

Fed. R. Civ. P. 12 .......................................................................................................................... 10 

OTHER AUTHORITIES

Cong. Rsch. Serv., Defense Primer: Reserve Forces (updated Jan. 17, 2023), 

https://crsreports.congress.gov/product/pdf/IF/IF10540 ............................................................. 3 

David A. Schlueter, Military Criminal Justice: Practice and Procedure § 1–7 

(Matthew Bender & Co. 2023) ................................................................................................... 6

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INTRODUCTION 

This case concerns the Air Force’s decision to issue an administrative censure to Plaintiff, 

Major Jace Yarbrough, in connection with a speech he gave, in-uniform, at a military retirement 

ceremony, and surrounded by other servicemembers. During his remarks, Plaintiff harshly 

criticized the military as “politicized” and breeding “incompetence and cowardice,” worried that 

military leadership had been “capture[d]” by a “radical political faction,” and dismissed military 

training as “a thinly veiled flex of political power.” Plaintiff has challenged the Air Force’s 

decision to issue an administrative Letter of Admonishment (LOA), but all his claims should be 

dismissed. 

As an initial matter, Plaintiff has not appealed to the Air Force Board for the Correction of 

Military Records, and so his claims should all be dismissed for a failure to exhaust. 

But Plaintiff’s claims also fail on the merits. Plaintiff asserts that the Secretary of the Air 

Force lacks the authority to discipline him (via subordinate commanders and supervisors). 

Plaintiff is wrong. The Secretary’s broad statutory responsibility for “all affairs” of the Air Force, 

as well as the Secretary’s specific responsibilities to prescribe standards for the appointment, 

retention, and promotion of officers, encompass the authority to establish an administrative 

discipline system covering Plaintiff’s circumstances here. Plaintiff’s First Amendment freedom 

of speech claim fails because Supreme Court precedent authorizes the military to restrict speech 

that, like Plaintiff’s here, the military reasonably identifies as a threat to the obedience, unity, and 

commitment necessary for military effectiveness. Plaintiff’s freedom of religion claim fails for 

similar reasons: courts owe significant deference to military authorities’ professional decisions to 

limit religious rights in appropriate contexts, and given the content of Plaintiff’s remarks, the Air 

Force’s decision to discipline him met the applicable relaxed standard. Plaintiff’s claim that the 

LOA was inconsistent with other military regulations that protect servicemembers’ religious and 

expressive rights likewise fails because in fact those regulations permit the discipline afforded 

under the circumstances here. Plaintiff’s claim that the LOA was arbitrary and capricious fails 

because the shortcomings that Plaintiff alleges in the Air Force’s decision-making process do not 

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plausibly demonstrate that either the process or the Air Force’s decision are unreasonable. And 

finally, Plaintiff’s claim under the Religious Freedom Restoration Act (RFRA) also fails, both 

because Plaintiff has not plausibly alleged that his religious exercise was burdened by his 

discipline for criticizing the military and its training and because, in any event, the admonishment 

he received satisfies strict scrutiny. 

STATUTORY AND REGULATORY BACKGROUND 

I. The Structure of the United States Military 

The United States military is led on a day-to-day basis by the Secretary of Defense, and is 

divided into three Departments, each of which is led by that Department’s individual Secretary. 

See 10 U.S.C. § 7011 (Secretary of the Army), § 8011 (Secretary of the Navy), § 9011 (Secretary 

of the Air Force).1 

Each Department’s Secretary is “responsible to the Secretary of Defense for . . . the 

functioning and efficacy of [their] Department” and for “the formulation of policies and 

programs . . . that are fully consistent with national security objectives and policies established by 

the President or the Secretary of Defense.” Id. § 9013(c)(1), (2) (Air Force); see also id.

§ 7013(c)(1), (2) (Army); id. § 8013(c)(1), (2) (Navy). Each Secretary is also “responsible for, 

and has the authority necessary to conduct, all affairs of the[ir] Department . . . including,” among 

other functions, “[r]ecruiting,” [t]raining,” “[a]dministering (including the morale and welfare of 

personnel),” and [m]aintaining” their respective Department. Id. § 9013(b) (Air Force); see also

§ 7013(b) (Army); § 8013(b) (Navy). 

To carry out their responsibilities, each Secretary, including the Secretary of the Air Force, 

“may . . . prescribe regulations to carry out his functions, powers, and duties under this title.” Id.

§ 9013(g); see also id. § 7013(g) (Army); id. § 7013(g) (Navy). Congress has also required the 

Department Secretaries to issue additional regulations governing servicemembers’ conduct, 

qualifications, and promotions. In particular, the Department Secretaries must “prescribe physical, 

mental, moral, professional, and age qualifications for the appointment of persons as Reserves of 

1 The Space Force is organized “within the Department of the Air Force.” 10 U.S.C. § 9081. 

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the armed forces under [their] jurisdiction,” id. § 12201(b), must “by regulation, prescribe . . . 

standards and qualifications for the retention and promotion of members of the reserve components 

under his jurisdiction,” and correspondingly must prescribe “equitable procedures for the periodic 

determination of the compliance of each such Reserve with those standards and qualifications,” 

id. § 12641(a). 

Many individual military servicemembers are part of the military’s “regular components,” 

while others are in one of the military’s “reserve components.” The reserve components are called 

upon to “provide trained units and qualified persons available for active duty in the armed forces, 

in time of war or national emergency,” and “fill the needs” of the regular “armed forces” when the 

regular armed forces need “more units and persons . . . than are in the regular components.” Id.

§ 10202. Servicemembers in the military’s regular components are in the military full-time, but 

most servicemembers in a reserve component serve for only part of the year, typically “one 

weekend a month and two weeks a year.” Cong. Rsch. Serv., Defense Primer: Reserve Forces at 

2 (updated Jan. 17, 2023), https://crsreports.congress.gov/product/pdf/IF/IF10540. 

II. Military Discipline 

The privilege of serving as an officer in the United States military is limited by statute to 

individuals who are “citizen[s] of the United States,” “of good moral character,” are “physically 

qualified for active service,” and have “such other special qualifications as the Secretary of the 

military department concerned may prescribe by regulation.” 10 U.S.C. § 532(a). 

In the Air Force and Space Force in particular, “[a]ll commanding officers and others in 

authority . . . are required” to “show in themselves a good example of virtue, honor, patriotism, 

and subordination,” to “guard against and suppress all dissolute and immoral practices,” and to 

“take all necessary and proper measures, under the laws, regulations, and customs of the Air Force 

or the Space Force, respectively, to promote and safeguard the morale, the physical well-being, 

and the general welfare of the officers and enlisted persons under their command or charge.” Id.

§ 9233. Similarly, reserve officers must also “conform to such other standards and qualifications 

as the Secretary [of the officer’s Department] may prescribe.” Id. § 12642(a). 

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To ensure that servicemembers meet Congress’s high standards, military servicemembers 

are subject to two sets of discipline: administrative discipline under Departmental regulation and 

criminal discipline under the UCMJ. Administrative discipline is handled, per Congress’s 

instruction, by the three Department Secretaries. To fulfill his statutory obligations to set the 

“qualifications” for the “appointment,” “retention and promotion” of the members of the Air Force 

and Space Force reserve, id. §§ 12201(b), 12641(a), the Secretary of the Air Force has issued a 

series of regulations that set substantive standards for the conduct of Air Force servicemembers, 

including reservists. For instance, the Secretary has issued regulations that govern Air Force 

servicemember’s conduct in areas including political activities, see Air Force Instruction 51-508, 

Political Activities, Free Speech and Freedom of Assembly of Air Force Personnel (Oct. 12, 2018), 

DEX 1 (“AFI 51-508”), repealed and superseded by Department of the Air Force Instruction 51-

508, Political Activities, Free Speech and Freedom of Assembly (Mar. 24, 2023); Air Force 

Instruction 1-1, Air Force Standards (Aug. 7, 2012), DEX 2 (“AFI 1-1”), § 2.13; the appearance 

and appropriate wearing of Air Force uniforms, see AFI 51-508, § 2.4.2; AFI 1-1, Chapter 3; the 

use of social media, see AFI 1-1, § 2.15; professional relationships, see AFI 1-1, § 2.2; and drug 

and alcohol abuse, see AFI 1-1, §§ 2.6-2.7. 

The Secretary has also issued regulations setting out the policies and procedures for 

imposing administrative discipline on those who violate these substantive rules. The goal of the 

Air Force’s administrative discipline system is to “improve, correct, and instruct subordinates who 

violate established Air Force standards whether on or off duty,” Air Force Instruction 36-2907, 

Adverse Administrative Actions (May 22, 2020), DEX 3 (“AFI 36-2907”), § 1.1, superseded by

Department of the Air Force Instruction 36-2907, Adverse Administrative Actions (Oct. 14, 2022), 

DEX 4 (“DAFI 36-2907”) and the system “applies to all Department of the Air Force [] civilian 

employees and uniformed members of the United States Space Force [], the Regular Air Force [], 

the Air Force Reserve [], to include the retired reserve, and the Air National Guard [],” Air Force 

Policy Directive 36-29, Military Standards (Apr. 11, 2019) DEX 5 (“AFPD 36-29”) at 1–2, 

superseded by Air Force Policy Directive 36-29, Military Standards (Jan. 24, 2023); see also AFI 

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36-2907 at 1. Consistent with that broad scope, the Air Force has authorized “administrative 

counseling, admonishment, and reprimands” to both servicemembers on active duty and “[Air 

Reserve Component] Airmen who commit an offense while in civilian status.” Id. § 2.1. Superior 

officers should “routinely counsel Airmen either verbally or in writing”; if in writing, a superior 

can issue, in order of severity, a Letter of Counseling, a Letter of Admonishment, or a Letter of 

Reprimand, each of which is an “[a]dministrative censure for violation of standards.” Id. §§ 2.3, 

2.3.1-2.3.5. The regulations, however, nowhere require commanders to issue administrative 

censures in any specific case, and so superior officers retain discretion about when to issue 

administrative censures. Officers issuing a censure use the “preponderance of the evidence” 

standard, which regulations specify must be determined not “by the number of witnesses or 

exhibits, but by all the evidence” taken together. Id. §§ 2.2, 2.2.1. 

Administrative censures are not criminal actions and are not punishable by punitive actions 

such as confinement or fines. Instead, administrative censures are typically filed in the 

servicemember’s personnel file, see id. § 2.4.5.1, and may be considered by promotion boards 

when servicemembers are up for promotion,2 see 10 U.S.C. § 14107(a)(2)(A). 

Any Air Force servicemember who receives an administrative censure has an opportunity 

to challenge the censure through an established process that includes the right to administrative 

appeal. Active duty servicemembers have 3 days in which to initiate a challenge, whereas “[Air 

Reserve Component] members not in an active duty status . . . have 45 calendar days.” AFI 36-

2907, § 2.4.2.4. If the servicemember challenges the censure, the Air Force must “consider[] any 

comments submitted” by the servicemember and then decide on a “final disposition,” either within 

2

 The Army and the Navy have similar systems of administrative discipline that authorize the 

placement of non-punitive sanctions in servicemember’s personnel files. See Army Regulation 

600-37, Unfavorable Information (Oct. 2, 2020), DEX 6 (“AR 600-37”) § 3.5 (authorizing the 

“[f]iling of nonpunitive administrative memoranda of reprimand, admonition, or censure” in “the 

performance portion of the [Army Military Human Resource Record]”); Navy Judge Advocate 

General’s Manual (Jan. 10, 2021), DEX 7 § 0105(b)(1), (2) (providing that a “[n]onpunitive 

censure or letter of instruction” “is not punishment” but “conveys necessary information to remedy 

a deficiency in conduct or in the performance of duty” and “may be referenced as an adverse matter 

in a fitness report or evaluation”). 

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3 days for active-duty members or within 45 days for “[Air Reserve Component] members not in 

an active duty status.” Id. § 2.4.3. If a servicemember is dissatisfied with the determination 

resulting from this initial appeal process, they may appeal to additional officers “in the 

[servicemember’s] current chain of command and equal or senior in grade to the initial imposing 

authority” and ask them to rescind the censure. See id. § 2.4.6.2.2. If still unsuccessful, the 

servicemember may appeal to the Air Force Board for the Correction of Military Records, a body 

that “may correct any military record of the [Air Force] when the [Board] considers it necessary 

to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). 

The UCMJ, set out in 10 U.S.C. Ch. 47, provides a set of substantive rules that govern 

servicemembers’ conduct, see, e.g., id. § 817, authorizes trial by court martial to those who violate 

those rules, see id. §§ 816–21, and imposes punishments including “dismissal or dishonorable 

discharge” from the military and “confinement” for periods up to “life without the eligibility of 

parole,” see id. § 856. Importantly, because courts martial impose criminal discipline, “[t]he 

procedural protections afforded to a service member” in a court martial “are ‘virtually the same’ 

as those given in a civilian criminal proceeding.” Ortiz v. United States, 138 S. Ct. 2165, 2174 

(2018) (quoting David A. Schlueter, Military Criminal Justice: Practice and Procedure § 1–7 

(Matthew Bender & Co. 2023)). UCMJ jurisdiction is limited, however, to “[m]embers of a 

regular component of the armed forces” and certain other specified groups. 10 U.S.C. § 802(a)(1). 

As relevant here, “members of a reserve component” are subject to the UCMJ only when “lawfully 

called or ordered into, or to duty in or for training,” “[w]hile on inactive-duty training,” while 

traveling “to or from” inactive-duty training, or in brief breaks between periods of inactive-duty 

training. See id. § 802(a)(1), (3). 

FACTUAL AND PROCEDURAL BACKGROUND 

Plaintiff Jace Yarbrough is a Major in the United States Air Force Reserve. Compl. ¶¶ 4, 

5. He was an active-duty officer in the Air Force between 2011 and 2015 and has served as a 

reservist since 2015. Id. ¶ 24. 

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In June 2021, Plaintiff delivered a speech at a friend’s (Senior Master Sergeant (SMSgt) 

Fish’s) military retirement ceremony. Id. ¶¶ 72, 89. The ceremony was held in Pearl Harbor, 

Hawaii, at the Battleship Missouri Memorial, a monument to a World War II battleship that is 

operated by a non-profit organization, open to the public, and the site of frequent military 

ceremonies and public events. Id. ¶¶ 80-82. Also attending were members of SMSgt Fish’s 

family, several of SMSgt Fish’s other friends from the military, Plaintiff and his family, and other 

members of the military including SMSgt Fish’s commanding officer. Id. ¶ 84. Several other 

members of the public walked by over the course of the speech. See Letter of Admonishment, 

DEX 8 (“LOA”), Ex. D, at 6, 8. 

Plaintiff’s speech covered a variety of topics. Plaintiff praised SMSgt Fish and his wife, 

and summarized some of SMSgt Fish’s accomplishments from his time in the military. Id. Ex. A, 

at 1-5.3 Towards the end of Plaintiff’s speech, Plaintiff told those assembled at the retirement 

ceremony that “[t]he Air Force and the wider DoD [that is, the Department of Defense,] are under 

threat, not only from without, but from within.” Id. at 5. “Over the last decade,” Plaintiff said, 

“the totalizing claims of a radical political faction within our wider culture have broken into our 

military” to “capture our top brass.” Id. at 5, 6. The result, according to Plaintiff, was that “[o]ur 

[military] service has been politicized” and has begun “breeding . . . incompetence and 

cowardice.” Id. This “faction,” Plaintiff said, enforce “compliance with the party message,” and 

“cow their opponents into participation in their dishonesty.” Id. at 6. The “awful dynamic” that 

Plaintiff described, he said, “has become a part of the DoD’s culture,” such that “the recent DODwide extremism training” was in fact “a thinly veiled flex of political power.” Id. 

Plaintiff next quoted a play authored by Alexander Solzhenitsyn, a Soviet dissident, and 

suggested that Solzhenitsyn’s teachings indicated that the proper response to what Plaintiff 

3

 The Court may properly take judicial notice of the text of Plaintiff’s speech, as well as other 

documents attached as exhibits to this motion to dismiss. Plaintiff referred to these documents in 

his complaint (and in many cases directly quoted them), and the documents are central to his claim; 

they may thus be considered at this stage. See Polnac v. City of Sulphur Springs, 555 F. Supp. 3d 

309, 323 (E.D. Tex. 2021) (Mazzant, J.).

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believed was happening in the Air Force was to challenge what was happening, and to “let the lie 

come, but not through me.” Id. at 7. Throughout his remarks, Plaintiff “wore his Air Force 

uniform,” though he was not on active duty at the time. Compl. ¶¶ 85-86. 

One of the servicemembers present for Plaintiff’s speech filed a complaint against him, 

and the Air Force accordingly opened an investigation. Id. ¶¶ 103–05. As part of that 

investigation, the Air Force submitted a series of written questions to Plaintiff, to which he 

responded, see LOA, Ex. B, took statements from witnesses who attended the retirement ceremony 

(excerpts of which were provided to Plaintiff), see Compl. ¶ 106; LOA, Ex. C, and obtained from 

Plaintiff a complete text of his speech, see LOA, Ex. A. 

Based on the information gathered during the investigation, the Air Force issued Plaintiff 

a Letter of Admonishment. The LOA noted that Plaintiff “delivered a speech in uniform during a 

military retirement ceremony . . . in a public setting,” and cited several excerpts from Plaintiff’s 

speech. LOA at 1. In particular, the LOA quoted Plaintiff as saying that “radical political factions” 

were present in the military, that the military is fostering a culture of “incompetence and 

cowardice,” and that DOD-wide extremism training was a “thinly veiled flex of political power.” 

Id. The LOA noted that “[m]ilitary members are to remain apolitical and must respect the chain 

of command,” and that Plaintiff’s remarks were “insubordinate, disrespectful, and unbecoming for 

an officer in the military.” Id. Though the LOA acknowledged that “[a]s a military member 

[Plaintiff has] the right and duty as an American citizen to voice [his] opinions concerning political 

matters,” it observed that Plaintiff “cannot imply those beliefs are representative of the Air Force, 

and [his] statements cannot be contemptuous.” Id. In accordance with AFI 36-2907, § 2.4.2.4, 

the LOA gave Plaintiff “45 calendar days” to respond because Plaintiff was “not in an active duty 

status” when the LOA was issued. 

Plaintiff, through counsel, timely appealed the LOA, arguing that it should be rescinded 

because, in Plaintiff’s view, the Air Force cannot discipline off-duty reservists, the LOA violated 

Plaintiff’s “right of speech,” and Plaintiff’s speech “was apolitical.” Administrative Appeal 

Communications, DEX 9 (“Appeal Communications”), at 2, 3. The Air Force rejected Plaintiff’s 

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9 

five appeals, which he pursued up his chain of command to the Chief of Space Operations, arguing 

each time that the Air Force cannot discipline off-duty reservists and the LOA violated Plaintiff’s 

free speech rights. See generally id. The Air Force responded to each appeal, explaining its 

position that the Air Force can discipline off-duty reservists and that the LOA was consistent with 

the limitations on Plaintiff’s right to free speech while a member of the armed forces. See id. at 5, 

10, 16, 23, 30. 

After the Director of Military Justice and Discipline at the Air Force Judge Advocate 

General’s Department (who responded on behalf of the Chief of Space Operations) denied 

Plaintiff’s request to rescind the LOA, see Appeal Communications at 30, Plaintiff filed his 

Complaint. See generally Compl. Plaintiff’s claims mirror several of the arguments that he had 

raised in his appeals to the Air Force, including that the Air Force cannot discipline off-duty 

reservists and that the LOA violated Plaintiff’s right to free speech. See id. ¶¶ 129–47, 181–208. 

Plaintiff also claims that the LOA was “arbitrary and capricious,” see id. ¶¶ 222–33; that the LOA 

violated the Air Force’s own regulations, see id. ¶¶ 209–21; and that the LOA burdened his 

freedom of religion under both the First Amendment and the Religious Freedom Restoration Act, 

see id. ¶¶ 148–80. 

STATEMENT OF THE ISSUES 

1. Should this case be dismissed because Plaintiff “failed to exhaust available serviceconnected remedies,” Crawford v. Tex. Army Nat’l. Guard, 794 F.2d 1034, 1036 (5th Cir. 

1986), by declining to appeal his Letter of Admonishment to the Air Force Board for 

Corrections of Military Records? 

2. Has Plaintiff plausibly alleged that the Air Force lacks statutory authority to impose 

administrative discipline on reservists for misconduct that occurs while not on active 

duty? 

3. Has Plaintiff plausibly alleged that the Letter of Admonishment violates the Free Speech 

Clause of the First Amendment? 

4. Has Plaintiff plausibly alleged that the Letter of Admonishment violates the Free 

Exercise Clause of the First Amendment? 

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10 

5. Has Plaintiff plausibly alleged that the Letter of Admonishment was inconsistent with 

other Air Force and Department of Defense regulations? 

6. Has Plaintiff plausibly alleged that the Air Force’s decision to issue the Letter of 

Admonishment was arbitrary and capricious? 

7. Has Plaintiff plausibly alleged that the Letter of Admonishment violates the Religious 

Freedom Restoration Act? 

STANDARDS OF REVIEW 

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests the court’s subject 

matter jurisdiction. The party asserting subject matter jurisdiction bears the burden of proof for a 

Rule 12(b)(1) motion to dismiss. See Willoughby v. United States, 730 F.3d 476, 479 (5th Cir. 

2013). 

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency 

of a complaint. To survive such a motion, the complaint must contain “enough facts to state a 

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

In assessing a Rule 12(b)(6) motion, the Court must consider all well-pled allegations in a 

complaint as true and view the complaint in the light most favorable to the plaintiff. See Albright v. 

Oliver, 510 U.S. 266, 268 (1994). However, a Court need not take as true “conclusory allegations 

or legal conclusions masquerading as factual allegations.” Fernandez–Montes v. Allied Pilots 

Ass’n, 987 F.2d 278, 284 (5th Cir. 1993). And where, as here, a court “may . . . consider documents 

that a defendant attaches to a motion to dismiss,” if the “exhibit instead contradicts the 

allegation[s], the exhibit and not the allegation controls.” Sligh v. City of Conroe, 87 F.4th 290, 

297, 298 (5th Cir. 2023) (quoting Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 766 (5th 

Cir. 2016); United States v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004)). 

ARGUMENT 

I. Plaintiff’s Complaint Should Be Dismissed Because Plaintiff Has Not Exhausted His 

Administrative Remedies 

“It is basic to military claims that [a] petitioner must exhaust her military remedies before 

seeking federal court intervention. This requirement is premised upon principles of comity, the 

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need to raise an army speedily and efficiently, and the specialized expertise of military institutions 

with respect to its internal affairs.” Lawrence v. McCarthy, 344 F.3d 467, 469–70 (5th Cir. 2003) 

(citation omitted); see also Hodges v. Callaway, 499 F.2d 417, 419–20 (5th Cir. 1974). Plaintiff 

here has not exhausted his military remedies, and this case’s unusual facts and posture give the 

Court every reason to follow the Fifth Circuit’s longstanding acknowledgement that 

servicemembers challenging military discipline should exhaust their military remedies. 

Plaintiff has not yet taken the final step in the appeal process for military discipline: a 

petition to the Air Force Board for Correction of Military Records. That Board “may correct any 

military record of the [Air Force,]” including by removing an LOA from a servicemember’s 

personnel files, “when the [Board] considers it necessary to correct an error or remove an 

injustice.” 10 U.S.C. § 1552(a)(1). 

Here, Plaintiff never raised with the agency most of the claims he now brings, so the agency 

has never had a chance to address whether the LOA should have been amended or rescinded in 

light of these claims. See, e.g., Appeal Communications at 11–15 (only challenging the LOA as 

exceeding the scope of the Air Force’s jurisdiction and violating Plaintiff’s free speech rights). If 

Plaintiff had petitioned the Board and included the claims he has raised here, the Air Force would 

have responded to all of Plaintiff’s arguments and issued a written opinion on the issues. The 

absence of such a decision underscores the importance of exhaustion here as the Air Force has not 

yet had an opportunity to address multiple significant claims concerning the reasonableness of the 

Air Force’s decision-making process, see, e.g., Compl. ¶¶ 175–77, 228, that Plaintiff is now raising 

for the first time. 

Accordingly, Plaintiff’s claims should be dismissed because he “failed to exhaust his 

administrative remedy before the Board for Correction of [Air Force] Records.” Strickland v. 

Danzig, 235 F.3d 1339 (5th Cir. 2000) (per curiam) (unpublished); see also Crawford, 794 F.2d at 

1035 (affirming the dismissal of appellants’ claims because they “failed to exhaust available 

service-connected remedies by appealing to the Army Board for the Correction of Military 

Records”). 

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II. Plaintiffs’ Complaint Should Be Dismissed for Failure to State a Claim 

A. Plaintiff Has Failed to State a Claim Under the APA (Claims One, Three, Four, 

Five, and Six) 

1. Plaintiff Has Failed to Plausibly Allege that the Air Force Lacks Statutory 

Authority to Administratively Discipline Reservists Not on Active-Duty 

(Claim One) 

Plaintiff’s first claim is that the LOA exceed the Air Force’s statutory authority. Not so. 

As Plaintiff concedes, AFI 36-2907 § 2.2 plainly authorized the administrative discipline that 

Plaintiff received. See Compl. ¶ 116. And the Air Force’s issuance of AFI 36-2907 derives from 

both the Secretary’s statutory responsibilities and the policies and purposes underlying military 

discipline. 

Congress has given the Secretary comprehensive, express statutory authority and 

responsibility over the Air Force. The Secretary is “responsible to the Secretary of Defense for . . . 

the functioning and efficiency of the Department of the Air Force,” and is specifically “responsible 

for, and has the authority necessary to conduct, all affairs” of the Air Force. 10 U.S.C. § 9013(b), 

(c)(1) (emphasis added). More specifically, the Secretary is “responsible for” Air Force 

“functions” including “[r]ecruiting,” [t]raining,” “[a]dministering (including the morale and 

welfare of personnel),” and [m]aintaining” the Air Force. See id. § 9013(b). Consistent with these 

responsibilities, Congress also authorized the Secretary to “prescribe regulations to carry out his 

functions, powers, and duties.” Id. § 9013(g). 

Congress has also required the Secretary to assess Air Force members’ qualifications and 

conduct at every stage of their military careers. The Secretary “may prescribe by regulation” 

“special qualifications” for the appointment of Regular officers, id. § 532(a)(4); “shall prescribe” 

the “qualifications” for the initial “appointment” of an officer in the “Reserves” of the Air Force, 

id. § 12201(b); “shall, by regulation, prescribe” the “standards and qualifications for the retention 

and promotion of members of the reserve components,” id. § 12641(a), (a)(1); and “shall, by 

regulation, prescribe . . . procedures” for “periodic determination[s]” that “each such Reserve” 

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member complies with the “standards and qualifications” that the Secretary has prescribed by 

regulation, id. § 12641(a), (a)(2). 

The authority to discipline servicemembers flows from the Secretary’s broad authority over 

the “functioning and efficiency of the Department of the Air Force” and “responsib[ility] for, 

and . . . authority necessary to conduct, all affairs” of the Air Force. 10 U.S.C. § 9013(b), (c)(1). 

This authority is similarly part-and-parcel of the Secretary’s specific obligations with respect to 

“recruiting,” “training,” “maintaining,” and “[a]dministering (including the morale and welfare of 

personnel)” the Air Force, id. § 9013(b)(1), and the Secretary’s responsibility to, “by regulation, 

prescribe” “standards and qualifications” for the “appointment,” “retention,” and “promotion” of 

officers, as well as to prescribe “procedures” for “periodic determination[s]” that servicemembers 

comply with those standards. Id. §§ 12201(b); 12641(a)(1), (a)(2). 

Consistent with these statutory requirements, the Secretary has by regulation established a 

“policy for appropriate standards of conduct” by servicemembers. AFPD 36-29 at 1. This policy 

“ensure[s] members meet their personal, professional, and family-care responsibilities,” “applies 

to all Department of the Air Force [] civilian employees and uniformed members of the United 

States Space Force [], the Regular Air Force [], the Air Force Reserve [], to include the retired 

reserve, and the Air National Guard [],” id. at 1–2, and was “implement[ed]” by AFI 36-2907, the 

very regulation that Plaintiff challenges here, which provides for “[a]dverse administrative 

actions . . . to improve, correct, and instruct subordinates who violate established Air Force 

standards whether on or off duty,” AFI 36-2907 § 1.1. 

The Air Force’s system of administrative discipline extends to conduct of reservists. The 

Reserves are meant to “provide trained units and qualified persons available for active duty . . . in 

time of war or national emergency,” and the Reserves thus “fill the needs” of the regular “armed 

forces” when necessary, on equal footing with the regular forces. 10 U.S.C. § 10202. Congress 

thus holds officers in the Reserves to the same standard to which it holds officers in the regular 

armed forces, compare id. § 616 (setting out the requirements for regular officer promotions), with

id. § 14108 (setting out identical requirements for the promotions of reserve officers); see also id.

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§ 14108(b)(3) (limiting reserve officer promotions to those “best qualified for promotion . . . 

consistent with the requirement of exemplary conduct set forth in [id. c 9233, which sets out the 

general requirements of conduct for “[a]ll commanding officers and others in authority in the Air 

Force”]). 

Misconduct by servicemembers, even when they are not on active duty, may reflect poorly 

on the military as an institution and may affect the servicemember’s ability to perform their official 

duties. “[F]or military personnel, the term ‘workplace’ is an expansive term that may include ‘offduty’ conduct, 24 hours a day.” United States v. Brown, 55 M.J. 375, 384 (C.A.A.F. 2001). 

Consequently, Department of Defense-wide regulations also limit servicemembers’ conduct even 

when they are not on active duty. See, e.g., Department of Defense Directive 1344.10, Political 

Activities by Members of the Armed Forces (Feb. 19, 2008), DEX 10 (“DoDD 1344.10”), § 4 

(limiting the political activities of “members of the Armed Forces . . . including members on active 

duty[ and] members of the Reserve Components not on active duty” (emphasis added)). The Air 

Force’s system of administrative discipline takes the same approach and extends to some conduct 

by officers—including officers in the Reserve—even when they are not on active duty. For 

instance, Air Force regulations impose “certain restrictions” on political activities by “members of 

the Reserve Component, even when not on active duty,” AFI 51-508, § 2.1.3 (emphasis added); 

prohibit “personal commercial solicitation or sale to any military personnel junior in rank or grade 

at any time—on or off-duty, in or out of uniform,” AFI 1-1, § 2.3.4.1 (emphasis added); limit 

“personal relationships” between “[o]fficers and enlisted members . . . whether on or off-duty,” id.

§ 2.2.3 (emphasis added); and provide that servicemembers’ “use of alcohol must not adversely 

affect [their] duty performance or [their] conduct on or off-duty,” id. § 2.7 (emphasis added). 

Naturally, Air Force servicemembers who break these rules are subject to administrative 

discipline. See AFI 36-2907, § 2.1. 

Within this context, the Secretary’s decision to authorize administrative discipline for 

reservists “who commit an offense while in civilian status,” id., is appropriate and well within his 

authority. Reservists, like servicemembers in the regular Air Force, may be determined to have 

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committed an administrative offense while not on active duty, which for a reservist includes their 

time on civilian status. Indeed, both Air Force regulations and DoD regulations expressly 

contemplate that situation. See, e.g., AFI 51-508, § 2.1.3 (imposing restrictions on political 

activity by “members of the Reserve Component, even when not on active duty”); DoDD 1344.10, 

§§ 4, 4.1.4 (same). 

None of the allegations in Plaintiff’s Complaint undercut the authority of the Air Force to 

issue the LOA. For example, Plaintiff alleges that the UCMJ gives the Air Force jurisdiction “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.” 

Compl. ¶ 138 (citing 10 U.S.C. § 802). But the statutes governing the UCMJ are inapplicable: 

Plaintiff was given administrative discipline under Air Force regulations, not criminal discipline 

under the UCMJ, and the military’s “administrative [procedures] are not criminal procedures.” 

Williams v. Roche, 468 F. Supp. 2d 836, 849 (E.D. La. 2007) (quoting Weaver v. United States, 46 

Fed. Cl. 69, 78 (2000). The UCMJ’s jurisdictional limitations are thus irrelevant here. 

Plaintiff next asserts that the Air Force’s issuance of the LOA is inconsistent with its “own 

admission” that one of its regulations did not apply to off-duty conduct, relying on Wilson v. James, 

139 F. Supp. 3d 410, 429 (D.D.C. 2015), in which the Air Force accepted that the relevant 

provisions of AFI 1-1 did not bar the specific conduct at issue therein. See Compl. ¶ 143. But 

contrary to Plaintiff’s assertion, Plaintiff’s claim here concerns a totally different regulation, AFI 

36-2907, § 2.1, which by its own terms expressly does apply to off-duty reservists. So the Air 

Force’s acknowledgement in Wilson that AFI 1-1 may, in certain cases, not apply to off-duty 

conduct does not call into question either that AFI 36-2907 applies, by its terms, to Plaintiff’s 

conduct or that the Secretary has the authority to issue AFI 36-2907. 

Plaintiff also refers, in Compl. ¶ 144, to a decision by the Department of the Army 

Suitability Evaluation Board that voided a Memorandum of Reprimand issued to Captain Alan 

Kennedy, a Colorado national guardsman. See In re Kennedy, Record of Proceedings, Dept. of 

the Army: Suitability Evaluation Board, Docket No. AR20210006717 (Dec. 14, 2021), DEX 11 at 

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2, 10. But like Wilson, Kennedy involved different regulations than the one at issue here. See id.

at 2 (discussing AR 600-37 and Department of Defense Instruction 1325.06, Handling Dissident 

and Protest Activities Among Members of the Armed Forces (Feb. 22, 2012), DEX 12 (“DoDI 

1325.06 2012”), superseded by Department of Defense Instruction 1325.06, Handling Protest, 

Extremist, and Criminal Gang Activities Among Members of the Armed Forces (Dec. 20, 2021), 

DEX 13 (“DoDI 1325.06 2021”)). Further, Captain Kennedy was in a State national guard, not 

the federal reserve, and Kennedy’s reasoning accordingly focused on how the regulation at issue 

“does not apply to National Guard Servicemembers unless they are serving in . . . federal active 

duty status.” Id. at 9. So Kennedy does not support Plaintiff’s claim in this case, which concerns 

a regulation that Plaintiff concedes applies to him, Compl. ¶ 136, and where Plaintiff serves in the 

“United States Air Force Reserve” rather than the national guard of one of the several states, id. ¶ 

5. 

To summarize, Congress required the Secretary to issue regulations setting standards and 

qualifications for officer conduct, appointment, promotion, and retention; the Secretary has 

established both substantive standards of conduct and a process for issuing administrative 

discipline; and the Secretary reasonably decided to prohibit some off-duty misconduct. Based on 

the allegations in the Complaint, Plaintiff has not stated a plausible claim that the Secretary has 

exceeded his authority. 

2. Plaintiff Has Failed to Plausibly Allege that the LOA Violates His First 

Amendment Right to Freedom of Speech (Claim Four) 

Plaintiff also fails to plausibly allege that the LOA was “contrary to constitutional right,” 

5 U.S.C. § 706(2)(B), because the LOA allegedly violated the Free Speech Clause of the First 

Amendment. “[T]o accomplish its mission, the military must foster instinctive obedience, unity, 

commitment, and esprit de corps”; the military therefore “need not encourage debate or tolerate 

protest to the extent that such tolerance is required of the civilian state by the First Amendment.” 

U.S. Dep’t of Just. v. FLRA, 955 F.2d 998, 1006 (5th Cir. 1992) (quoting Goldman v. Weinberger, 

475 U.S. 503, 507 (1986)). In fact, “[t]he armed forces depend on a command structure that at 

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times must commit men to combat, not only hazarding their lives but ultimately involving the 

security of the Nation itself.” Parker v. Levy, 417 U.S. 733, 759 (1974). Accordingly, while 

“[d]isrespectful and contemptuous speech” may be “protected in the civil population,” in a military 

context that speech “may nonetheless undermine the effectiveness of response to command” and 

thus is “constitutionally unprotected.” Id.; see also Priest v. Sec’y of Navy, 570 F.2d 1013, 1018 

(D.C. Cir. 1977) (holding that speech by a servicemember is not “protected by the First 

Amendment” if the speech “harm[s] responsiveness to command or [] endanger[s] loyalty, 

discipline, or morale”). 

Here, Plaintiff’s speech is unprotected. Speech by a servicemember that is directed at the 

military and “disrespectful or contemptuous . . . can directly undermine the power of command.” 

United States v. Gray, 42 C.M.R. 255, 258 (C.M.A. Aug. 28, 1970). Plaintiff, while in uniform at 

a military event, criticized the military as “politicized” and full of “incompetence and cowardice,” 

worried that military leadership had been “capture[d]” by a “radical political faction,” criticized 

military training as “a thinly veiled flex of political power,” and exhorted his listeners to resist. 

LOA, Ex. A. at 5, 6. That fits well within the type of disrespectful and contemptuous speech—

directed at his superiors and the military at large—that can “undermine the power of command,” 

Gray, 42 C.M.R. at 258, and is thus “constitutionally unprotected.” Parker, 417 U.S. at 759. 

Although Plaintiff alleges otherwise, suggesting that his remarks had “no chance of causing 

prejudice to good order and discipline,” Compl. ¶ 195, this allegation is both conclusory and 

contradicted by the text of his speech, which harshly criticized military policy and leadership, see

LOA, Ex. A at 5-6, and by Plaintiff’s own Complaint, which confirms that Plaintiff spoke in a 

space open to the public with multiple military servicemembers present, id. ¶¶ 82, 84. 

It makes no difference whether Plaintiff was in military status during his speech. As 

Plaintiff concedes, when he gave his speech he was wearing his military uniform at a “military 

ceremon[y]” with other military members present. Id. ¶¶ 82, 84, 86. It is precisely this context—

a servicemember in a military uniform, criticizing the military, to members of the military as well 

as the general public—that makes Plaintiff’s speech “undermine the effectiveness of response to 

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command.” Parker, 417 U.S. at 759. Indeed, these circumstances demonstrate the Air Force’s 

rationale for prohibiting servicemembers from wearing their uniforms “[w]hen participating in or 

attending public political speeches . . . when participation might imply Air Force sanction . . . or 

if the purpose may be to advocate, express, or approve opposition to the Armed Forces.” AFI 1-

1, § 3.4.2.2; see also AFI 51-508, § 2.4 (“[A] member of the [Air Force] not on active duty may 

take [certain political actions] and participate in the activities prohibited [earlier in the regulation], 

provided the member is not in uniform and does not otherwise act in a manner that could 

reasonably give rise to the inference or appearance of official sponsorship, approval, or 

endorsement.”). When a servicemember makes political statements in uniform, the uniform 

implies that the military endorses those statements, thus threatening the “American constitutional 

tradition of a politically neutral military establishment.” Greer v. Spock, 424 U.S. 828, 839 (1976). 

Indeed, multiple courts have approved military discipline for political activities while in uniform. 

See Klingenschmitt v. United States, 119 Fed. Cl. 163, 193 (2014) (upholding military discipline 

“based on Navy regulations that prohibit the wearing of a uniform in connection with political 

activities”), aff’d, 623 F. App’x 1013 (Fed. Cir. 2015); see also Locks v. Laird, 300 F. Supp. 915, 

918 (N.D. Cal. 1969), aff’d, 441 F.2d 479 (9th Cir. 1971). 

Even if the non-military First Amendment rules governed here, the LOA would still satisfy 

them. “[C]ontent-based restrictions on speech” must satisfy 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)). And Plaintiff has 

not plausibly alleged that the LOA fails this test. As the Supreme Court has held, “the military 

must foster instinctive obedience, unity, commitment, and esprit de corps.” Goldman, 475 U.S. at 

507, and must uphold the “American constitutional tradition of a politically neutral military 

establishment.” Greer, 424 U.S. at 839. There is thus a “substantial Government interest . . . in 

maintaining the respect for duty and discipline so vital to military effectiveness.” Wilson, 139 F. 

Supp. 3d at 426 n.5 (quoting Brown v. Glines, 444 U.S. 348, 348 (1980)); see also Rigdon v. Perry, 

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962 F. Supp. 150, 162 (D.D.C. 1997) (identifying “good order and discipline” as “compelling 

governmental interests”). Similarly “compelling” is the governmental interest in a “politicallydisinterested military,” Rigdon, 962 F. Supp. at 162; see also Greer, 424 U.S. at 839. The LOA, 

issued for statements “insubordinate, disrespectful, and unbecoming for an officer in the military,” 

LOA at 1, plainly supports those interests. 

The LOA was also narrowly tailored. Administrative censures are to be issued “routinely,” 

AFI 36-2907, § 2.3, and a Letter of Admonishment in particular is the second-lowest level of 

written censure available under Air Force regulations, and “could be used to document a first 

offense,” id. § 2.3.4. Its only automatic consequence is an entry in the servicemember’s personnel 

file, id. § 2.4.5.1, and under more recent regulations, in the servicemember’s promotion selection 

record, see DAFI 36-2907, § 1.2.8, Attachment 8. More, the LOA explicitly acknowledged that 

Plaintiff “ha[s] the right and duty as an American citizen to voice [his] opinions concerning 

political matters.” LOA at 1. The LOA noted only that servicemembers have modest guardrails 

for how to exercise those rights: Plaintiff “cannot imply those beliefs are representative of the Air 

Force,” for instance by being in uniform,” and that Plaintiff’s “statements cannot be 

contemptuous.” Id. The LOA thus “was a reasonable exercise of the discretion afforded to the 

military in matters of good order and discipline.” Wilson, 139 F. Supp. 3d at 426 n.5. 

3. Plaintiff Has Failed to Plausibly Allege that the LOA Violates His First 

Amendment Right to Freedom of Religion (Claim Three) 

Plaintiff also alleges that the LOA was “contrary to constitutional right,” 5 U.S.C. 

§ 706(2)(B), because the LOA violates the First Amendment’s guarantee of Freedom of Religion. 

Compl. ¶ 163. “[W]hen evaluating whether military needs justify a particular restriction on 

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

military authorities concerning the relative importance of a particular military interest.” Goldman, 

475 U.S. at 507. Judicial review of military rules “challenged on First Amendment grounds is 

[thus] far more deferential than constitutional review of similar laws or regulations designed for 

civilian society.” Id. Correspondingly, the Fifth Circuit has confirmed that the military’s “need 

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to ‘foster instinctive obedience, unity, commitment, and esprit de corps’” justifies a “low threshold 

of constitutional protection” for First Amendment activities. A.A. v. Needville Indep. Sch. Dist., 

611 F.3d 248, 269–70 (5th Cir. 2010) (quoting Goldman, 475 U.S. at 507). 

Even accepting that the LOA burdens Plaintiff’s religious rights, he has not plausibly 

alleged that Defendants issued the LOA in violation of the First Amendment. Again, the “military 

must foster instinctive obedience, unity, commitment, and esprit de corps,” Dep’t of Just., 955 

F.2d at 1006 (quoting Goldman, 475 U.S. at 507),” and the “armed forces depend on a command 

structure that at times must commit men to combat,” Parker, 417 U.S. at 759. Courts must 

therefore “give great deference to the professional judgment of military authorities concerning the 

relative importance” of this “military interest,” Goldman, 475 U.S. at 507, and courts have already 

confirmed that the military’s interest “in maintaining the respect for duty and discipline so vital to 

military effectiveness” is “substantial,” Wilson, 139 F. Supp. 3d at 426 n.5 (quoting Brown, 444 

U.S. at 348). 

The LOA supported those interests because Plaintiff’s speech, which he gave in uniform 

and in the presence of other servicemembers, contemptuously criticized the military, its leadership, 

and its training and thus threatened the “obedience” and “command structure” on which the 

military depends, and ultimately threatened to “undermine the power of command.” Gray, 42 

C.M.R. at 258. The LOA thus easily satisfies the Supreme Court’s standard of “deferential . . . 

constitutional review” for the military branches. Goldman, 475 U.S. at 507. 

Plaintiff’s complaint ignores the analysis applicable to military discipline, and instead 

focuses on the stricter Free Exercise Clause standard used in non-military contexts, see Compl. ¶¶ 

166–78, but he fails to state a claim even under that standard. As the Supreme Court has held, a 

“valid and neutral law of general applicability” does not violate the Free Exercise Clause, even if 

that law burdens religion. Emp. Div., Dept. of Hum. Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) 

(quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in judgment)). 

A policy is not neutral if its “object is to infringe upon or restrict practices because of their religious 

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motivation” and a policy is not “generally applicable” if the law “impose[s] burdens only on 

conduct motivated by religious belief” in a “selective manner.” Id. 

Plaintiff has not plausibly alleged that the LOA was based on a government policy that was 

neither neutral nor generally applicable. Plaintiff speculates that the LOA was based on a nonneutral policy because the LOA allegedly targeted his conduct “due to its religious nature,” Compl. 

¶ 172, but his own Complaint and the LOA’s full text rebut this implausible allegation. As 

Plaintiff’s Complaint explains, the LOA is neutral on its face. The LOA does not even mention 

religion or religious exercise, and instead focuses on the non-religious characteristics of Plaintiff’s 

speech: the speech’s “contemptuous” and “insubordinate” content. Id. ¶¶ 109–12; see also LOA 

at 1. Plaintiff nowhere alleges any other “subtle departures from neutrality.” Church of Lukumi 

Babalu Aye, Inc. v. City of Hialeah., 508 U.S. 520, 534 (1993) (quoting Gillette v. United States, 

401 U.S. 437, 452 (1971)). And in fact, Plaintiff never even alleges that the Air Force even knew 

of Plaintiff’s religious motivations at all, either before the Air Force disciplined him or during 

Plaintiff’s administrative appeals. None Plaintiff’s administrative appeals even mentioned 

Plaintiff’s religious motivations, and Plaintiff’s complaint does not allege that he filed any request 

for an administrative accommodation of his religious beliefs. In sum, the LOA does not mention 

religion or the free exercise thereof, the LOA offers wholly secular justifications for Plaintiff’s 

discipline, and Plaintiff does not even allege that the Air Force knew of his religious motivations 

before this lawsuit was filed. With these details in mind, it is simply implausible that the LOA’s 

“object” was to “restrict” Plaintiff because of his “religious motivation.” Smith, 494 U.S. at 879. 

Plaintiff similarly fails to adequately allege that either the Air Force’s policies on 

servicemembers’ speech or the LOA are not generally applicable in that they “impose burdens 

only on conduct motivated by religious belief.” Id. Plaintiff alleges that the Air Force’s policies 

are not generally applicable “because Defendants have exempted similarly situated 

servicemembers engaging in non-religious conduct from discipline.” Compl. ¶ 173. But this 

conclusory allegation is insufficient alone to nudge Plaintiff’s claim from possible to plausible, 

and the specific examples that Plaintiff gives all fall short. Plaintiff’s remarks that harshly 

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22 

criticized the military are plainly not similarly situated to two of his examples—a DoD press 

release and a tweet from an official DoD Twitter account—which are both officially sanctioned 

military speech that defended the military from criticism. See id. ¶¶ 176, 177. And as for the other 

examples, Plaintiff alleges only that the other servicemembers made run-of-the-mill political 

speech, not that they contemptuously criticized military leadership and training like Plaintiff did 

here. See id. ¶¶ 174–77, 204. That distinction—not some hypothetical anti-religious bias—

plausibly explains why the other servicemembers faced no discipline.4

4. Plaintiff Has Failed to Plausibly Allege that the Letter of Admonishment 

Was Inconsistent with Air Force Regulations (Claim Five) 

Plaintiff also alleges that the LOA was “not in accordance with law,” 5 U.S.C. § 706(2)(A), 

because Plaintiff claims that the LOA is inconsistent with a variety of Air Force and Department 

of Defense regulations that protect servicemembers’ freedoms of religion and speech, see Compl. 

¶¶ 214–217. These regulations serve the important function of protecting servicemembers rights, 

but none are inconsistent with the LOA. 

First, Plaintiff cites AFI 1-1, which provides that “[a]ll Airmen are able to choose to 

practice their particular religion, or subscribe to no religious belief at all” and to “confidently 

practice [their] own beliefs while respecting others whose viewpoints differ from [their] own.” 

See Compl. ¶ 214 (quoting AFI 1-1, § 2.12.1). But the very next provision cautions that Airmen’s 

“right to practice [their] religious beliefs does not excuse [them] from complying with directives, 

instructions, and lawful orders.” AFI 1-1, § 2.12.2. So AFI 1-1 does not provide religious 

servicemembers with a blanket right to disobey Air Force rules and is thus not inconsistent with 

the LOA. 

Plaintiff next cites Department of Defense Instruction 1300.17, Religious Liberty in the 

Military Services (Sept. 1, 2020), DEX 14 (“DoDI 1300.17”), § 1.2(b), which notes that the DoD 

will “accommodate individual expressions of sincerely held beliefs (conscience, moral principles, 

or religious beliefs) which do not have an adverse impact on military readiness, unit cohesion, 

4

 And even if the LOA were subject to strict scrutiny, it would survive. See supra Section II.A.2. 

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good order and discipline,” and 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.” But the Air Force reasonably determined that 

Plaintiff’s in-uniform speech that criticized the military at a military ceremony would have an 

“adverse impact” on readiness, cohesion, good order, and discipline. See supra Section II.A.2. So 

the LOA issued here was not inconsistent with DoDI 1300.17. 

Plaintiff also cites DoDI 1325.06 2021, § 3(b), which Plaintiff quotes as stating “[s]ervice 

member’s right of expression should be preserved to the maximum extent possible in accordance 

with the First Amendment of the Constitution.” Compl. ¶ 216. In fact, the version of that 

Instruction in effect at the time the LOA was issued was DoDI 1325.06 2012, which omits any 

reference to the First Amendment and requires instead that “right of expression should be 

preserved to the maximum extent possible in accordance with the constitutional and statutory 

provisions of titles 10 and 18, United States Code.” Plaintiff has not explained how the LOA 

allegedly contradicts these titles. And in any event, both DoDI 1325.06 2012, § 3(b), and DoDI 

1325.06 2021, § 3(b) only protect the right to free expression “consistent with good order and 

discipline and the national security.” The Air Force reasonably determined that Plaintiff’s speech 

was not “consistent with good order and discipline,” and so the LOA is not inconsistent with either 

version of DoDI 1325.06. 

Finally, Plaintiff notes, see Compl. ¶ 217, that AFI 51-508, § 2.3.1 authorizes 

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

representative of the AF or DoD.” But that same Instruction provides that servicemembers may 

not “[p]articipate, while in uniform, in any activity such as unofficial public speeches, interviews, 

picket lines, marches, rallies or any public demonstration which may imply AF sanction of the 

cause for which the demonstration or activity is conducted,” id. § 2.4.1.17, or engage in “[a]ny 

activity that may be reasonably viewed as directly or indirectly associating the AF or DoD with a 

partisan political activity or is otherwise contrary to the spirit and intention of this Instruction,” id.

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§ 2.4.3. The Air Force reasonably determined that Plaintiff’s speech did not “align and comport 

with AFI 51-508,” LOA at 1, and thus that Instruction is not inconsistent with the LOA. 

5. Plaintiff Has Failed to Plausibly Allege that the Letter of Admonishment 

was Arbitrary or Capricious (Claim Six) 

Plaintiff next claims that the LOA was “arbitrary, capricious, [or] an abuse of discretion.” 

Compl. ¶ 224 (quoting 5 U.S.C. § 706(2)(A)). Claims brought under Section 706(2)(A) are 

evaluated under a “narrow and highly deferential” standard of review; the Court “cannot substitute 

[its] judgment for that of the agency” and instead ensures that the agency “reasonably considered 

the relevant issues.” Huawei Techs. USA, Inc. v. Fed. Commc’ns Comm’n, 2 F.4th 421, 434, 449 

(5th Cir. 2021). The LOA easily meets this bar. 

Plaintiff raises three claims why the LOA was arbitrary and capricious; none are 

persuasive. First, he labels the LOA as “internally inconsistent.” In support, Plaintiff notes that 

the LOA relied on AFI 36-2907, § 2.1, which used the word “offense.” From this, Plaintiff 

extrapolates that the LOA thus “suggests the sanctioned conduct by the reservist must reach a level 

of criminality under the UCMJ,” and then alleges that his own “remarks did not . . . rise to the 

level of a military violation of the UCMJ.”5 Compl. ¶¶ 225, 227. But Plaintiff points to no 

evidence supporting his hypothesis that AFI 36-2907’s use of the phrase “offense” creates any link 

between that Instruction and “criminality under the UCMJ.” Indeed, the whole point of the Air 

Force’s administrative discipline system is to provide an alternative that differs from the UCMJ in 

key ways, for instance in that the administrative system is “corrective in nature, not punitive.” AFI 

5

 To the extent this claim “directly challenge[s] whether [Plaintiff’s] conduct warranted” the LOA, 

this claim would be non-justiciable. Wilson, 139 F. Supp. 3d at 431. Federal court jurisdiction 

over military discipline is “limited to challenges to procedures—it does not extend to the merits.” 

Reilly v. Sec’y of the Navy, 12 F.Supp.3d 125, 140 (D.D.C. 2014); see also Kreis v. Sec’y of Air 

Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). Evaluating such a claim would inappropriately 

“require this court to second-guess the wisdom of a military decision to reprimand Plaintiff,” and 

that claim would thus be “nonjusticiable.” Wilson, 139 F. Supp. 3d at 431, 432; see also Orloff v. 

Willoughby, 345 U.S. 83, 94 (1953) (“The military constitutes a specialized community governed 

by a separate discipline from that of the civilian. Orderly government requires that the judiciary 

be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not 

to intervene in judicial matters.”). 

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36-2907, § 1.1. Specific provisions of AFI 36-2907 confirm this distinction between the Air 

Force’s system of administrative discipline and the UCMJ. For instance, Section 2.2, the provision 

immediately following the one Plaintiff cites, reads: “The Standard of Proof for adverse 

administrative actions is the ‘preponderance of the evidence.’ This standard will be used when 

evaluating the evidence and every element of the alleged offenses.” (emphasis added). Of course, 

for a court martial to convict a servicemember of “criminality under the UCMJ,” the government 

must prove the servicemember’s guilt “beyond a reasonable doubt.” 10 U.S.C. § 851; see also

United States v. Czekala, 42 M.J. 168, 170 (C.A.A.F. 1995). So because AFI 36-2907, § 2.2 

provides that “offenses” may be imposed by the “preponderance of the evidence” rather than 

“beyond a reasonable doubt,” by definition that section confirms that AFI 36-2907 uses the phrase 

“offense” to refer to conduct not necessarily punishable by a court martial under the UCMJ. Other 

sections of AFI 36-2907 likewise confirm that the Instruction uses the phrase “offense” to refer to 

conduct meriting an administrative response. See, e.g., id. § 2.3.4 (providing that an 

“[a]dministrative censure . . . could be used to document a first offense”) (emphasis added). 

Second, Plaintiff claims that the LOA was arbitrary and capricious because it was allegedly 

not based “on a consideration of the relevant factors” and because the Air Force allegedly did not 

“engage in reasoned decisionmaking.” Compl. ¶ 228. But he has not adequately pled any 

shortcomings in Air Force’s process, let alone any that cause the LOA to fail the “narrow and 

highly deferential” review to which it is subject. Huawei Techs., 2 F.4th 421 at 449. Plaintiff 

complains that the Air Force interviewed “only six witnesses at an event with 25 in attendance” 

and did not “seek to determine whether most of those individuals found his remarks problematic,” 

Compl. ¶ 228. But Plaintiff cites no authority requiring the Air Force to interview each and every 

witness or to rest its decision on a straw poll of those present for Plaintiff’s speech. 

In fact, the Air Force’s own regulations instruct that the agency should determine whether 

discipline is warranted “not . . . by the number of witnesses . . . but by all the evidence” taken 

together. AFI 36-2907, § 2.2.1. And that is precisely what the Air Force did here. The Air Force 

considered the actual text of Plaintiff’s remarks (which the LOA cited repeatedly), the statements 

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of six witnesses, and Plaintiff’s responses to questions provided to him. See LOA at 1; id. Exs. B, 

D. This approach was both reasonable and consistent with the Air Force’s own regulations. 

Plaintiff also alleges that the Air Force “ignored the comments of one witness” who 

expressed some support for Plaintiff’s remarks. Compl. ¶ 229. But agencies routinely face 

conflicting evidence, and so it cannot be “arbitrary” for an agency to reach a conclusion consistent 

with some but not all of the evidence (not least when, as here, a vast majority of the witnesses and 

the actual text of Plaintiff’s speech support the Air Force’s decision). By Plaintiff’s logic, a 

decision to not issue the LOA would also have been arbitrary and capricious for “ignoring the 

comments” of the five witnesses who criticized Plaintiff’s speech. In any event, the Air Force 

reasonably considered the text of Plaintiff’s speech and the comments of six witnesses in issuing 

the LOA. All told, Plaintiff has not plausibly alleged that the Air Force did not give “reasonabl[e] 

consider[ation to] the relevant issues.” Huawei Techs., 2 F.4th 421 at 449. 

Third, Plaintiff alleges that the LOA was arbitrary and capricious because the Air Force 

has allegedly “exempted similarly situated servicemembers from discipline for publicly engaging 

in criticism of similar military policies, even while on active duty, and in uniform.” Compl. ¶ 231. 

But this claim is flawed for at least four reasons. First, according to the documents that Plaintiff 

cites, the servicemembers there each served in other branches under other commanders, and how 

those commanders exercised their discretion to issue (or not issue) administrative discipline cannot 

dictate how Plaintiff’s commander must exercise his own discretion here. Second, the Air Force, 

like other agencies, exercises “prosecutorial discretion” in its enforcement decisions. Citizens for 

Resp. & Ethics in Wash. v. Fed. Election Comm’n, 993 F.3d 880, 887 (D.C. Cir. 2021). And 

Plaintiff here points to no regulation or statute that overcomes the “presumption that agency 

decisions not to institute proceedings are unreviewable” and “committed to agency discretion.” 

Heckler v. Chaney, 470 U.S. 821, 837, 838 (1985). So the Air Force’s unreviewable decision (or, 

indeed, the unreviewable decision of another commander in another Branch) to exercise 

“prosecutorial discretion” in other cases cannot render arbitrary and capricious Plaintiff’s 

commander’s decision to not exercise that discretion here. Third, and as explained above, Plaintiff 

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has not plausibly alleged that the other servicemembers were similarly situated. He alleges that 

the other servicemembers “publicly engag[ed] in criticism of similar military policies,” Compl. ¶ 

231, but again, his LOA was not issued for mere criticism of military policy. The LOA was issued 

for in-uniform criticism, at a military event, of military leadership, policy, and training, that was 

“contemptuous,” “disrespectful,” and “insubordinate.” LOA at 1. Plaintiff does not allege that 

the other servicemembers that he identified made similarly contemptuous and insubordinate 

criticism, and this distinction plausibly explains any difference in discipline. See also supra

Section II.A.3. And fourth, even if it were appropriate to compare an enforcement action with an 

exercise of prosecutorial discretion, and even if the other servicemembers were similarly situated, 

at best Plaintiff’s argument suggests that the Air Force’s previous decisions not to discipline 

servicemembers were arbitrary and capricious. His argument casts no doubt on the Air Force’s 

decision to follow its own regulations and discipline him here. 

Separately, even if Plaintiff’s arbitrary and capricious claim were to succeed, Plaintiff 

could not obtain the relief he seeks: “an injunction setting aside the LOA; [] a declaration that the 

LOA was arbitrary, capricious, or an abuse of discretion; and [] a declaration that the military has 

no future authority to take disciplinary actions against him for his speech done while in civilian 

status.” Compl. ¶ 233. As an initial matter, “[g]ranting the relief Plaintiff seeks—removal of the 

LORs from his official record—would require this court to second-guess the wisdom of a military 

decision to reprimand Plaintiff.” Wilson, 139 F. Supp. 3d at 432 (citation omitted). Such direct 

challenges to “military personnel actions—including promotions, discharges, and discipline—

[are] nonjusticiable.” Id. at 431; see also Kreis, 866 F.2d at 1514. Further, the remedy for 

Plaintiff’s claim that the LOA was arbitrary and capricious under 5 U.S.C. § 706(2)(A) would be 

to vacate the LOA and “require the Secretary to explain more fully the process by which he reached 

his assessment,” not to enjoin the Air Force from re-issuing the LOA in the future. Kreis, 866 

F.2d at 1514; see also Coal. for Workforce Innovation v. Walsh, No. 1:21-CV-130, 2022 WL 

1073346, at *19 (E.D. Tex. Mar. 14, 2022). 

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B. Plaintiff Has Failed to State a Claim Under RFRA (Claim Two) 

Plaintiff has also failed to state a claim under the Religious Freedom Restoration Act, 42 

U.S.C. §§ 2000bb, et seq. Under RFRA, the federal government may not “substantially burden” 

a person’s sincere exercise of religion unless that burden satisfies strict scrutiny, in that the burden 

is “in furtherance of a compelling governmental interest” and is “the least restrictive means of 

furthering that . . . interest.” Id. § 2000bb-1(a), (b). Here, Plaintiff has failed to adequately allege 

either that Air Force has substantially burdened his religious exercise or that the LOA fails strict 

scrutiny. 

A government action imposes a “substantial burden” if the action “truly pressures the 

adherent to significantly modify his religious behavior and significantly violate his religious 

beliefs.” Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004). For at least two reasons, Plaintiff 

has not adequately alleged that the Air Force has burdened his religious exercise. 

First, Plaintiff’s religious beliefs were not the cause of his discipline. As described in 

Plaintiff’s complaint, Plaintiff holds a “faith-based belief” that you should not “forc[e] people to 

deny such self-evident beliefs” as the beliefs that “boys should not be allowed in girls’ locker 

rooms” and that “men can’t birth babies.” Compl. ¶¶ 94, 95. But the LOA was not issued because 

Plaintiff holds those beliefs or expressed them during his speech. The LOA was issued because 

Plaintiff criticized the military as “politicized” and full of “incompetence and cowardice” and 

criticized military training as a “thinly veiled flex of political power.” LOA at 1. So because the 

LOA was not issued based on Plaintiff’s expression of his “religious beliefs”, the LOA has done 

nothing to “pressure[]” Plaintiff to “significantly violate” those beliefs. Adkins, 393 F.3d at 570. 

Second, the LOA only limits speech (religious or otherwise) in narrow, specific contexts, 

and Plaintiff has not alleged that his religion motivates him to speak in those particular contexts. 

As many other courts have held, “a restriction on one of a multitude of means . . . is not a substantial 

burden” under RFRA. Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001). In other words, 

if the government does not restrict the “exclusive medium through which [a plaintiff] could express 

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his religious views,” there is no RFRA violation. Mahoney v. Doe, 642 F.3d 1112, 1120–21 (D.C. 

Cir. 2011). 

Importantly, multiple courts have applied this exact principle to reject RFRA challenges to 

military discipline. In Wilson, the plaintiff was disciplined “for voicing his views about same-sex 

marriage, using his military email account, to a senior officer outside his chain of command,” but 

because the discipline “did not bar [the plaintiff] from voicing his opposition to same-sex marriage 

in other fora or by other means, and certainly not in his private affairs,” the discipline “d[id] not 

rise to a RFRA violation.” 139 F. Supp. 3d at 425–26, aff’d, 2016 WL 3043746 (D.C. Cir. May 

17, 2016). Similarly, in Klingenschmitt v. United States a servicemember was disciplined for 

“engaging in [certain religious practices] while wearing his uniform,” but because the discipline 

“did not limit [the plaintiff’s] right to engage in . . . religious practices” in other contexts, the 

discipline “did not violate . . . RFRA.” 119 Fed Cl. 163, 193 (2014), aff’d, 623 F. App’x 1013 

(Fed. Cir. 2015). 

Applying this principle here, Plaintiff has alleged no substantial burden. Plaintiff alleges 

that his speech “was an expression of his religious exercise” because “speaking truth is an essential 

element of living out his faith.” Compl. ¶ 97. But Plaintiff was not disciplined for “speaking 

truth.” He was disciplined because he “cannot imply [his] beliefs are representative of the Air 

Force, and [his] statements cannot be contemptuous” while speaking in military uniform at a 

military ceremony. LOA at 1. So even under Plaintiff’s allegations, the LOA does not prevent 

Plaintiff from speaking truth “in other fora or by other means,” Wilson, 139 F. Supp. 3d at 425, 

nor does it prohibit any “exclusive medium through which [Plaintiff] could express his religious 

views,” Mahoney, 642 F.3d at 1120–21. Plaintiff thus has not alleged that the LOA imposes a 

substantial burden under RFRA. 

Finally, even if Plaintiff had plausibly alleged that the LOA substantially burdened his 

religious exercise, he has not plausibly alleged that the LOA fails strict scrutiny. Recall why the 

LOA was issued: Plaintiff, in military uniform at a public military ceremony, criticized the military 

as incompetent and cowardly, called the military’s leadership “radical” and “politicized,” and 

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dismissed military training as “a thinly veiled flex of political power.” LOA at 1. As explained 

above, the Air Force had a compelling governmental interest in disciplining Plaintiff’s 

insubordinate, contemptuous statements, and did so through the LOA in a reasonable, narrowly 

tailored fashion.6 See supra Section II.A.2. The LOA thus “was a reasonable exercise of the 

discretion afforded to the military in matters of good order and discipline.” Wilson, 139 F. Supp. 

3d at 426 n.5. 

C. Plaintiff Has Failed to State a Claim Under the First Amendment (Claim Seven) 

For the reasons explained above, Plaintiff fails to state APA claims alleging that the LOA 

violates his First Amendment rights to Freedom of Religion and Freedom of Speech. See supra

Sections II.A.2 and II.A.3. Plaintiff thus fails to state a claim under the First Amendment for those 

same two alleged violations. 

CONCLUSION 

For the foregoing reasons, the Court should grant the Government’s motion and dismiss 

Plaintiff’s Complaint. The agency and official-capacity defendants respectfully request oral 

argument on this matter. 

Dated: February 1, 2024 Respectfully submitted, 

 BRIAN BOYNTON 

Principal Deputy Assistant Attorney General 

 DAMIEN M. DIGGS 

 United States Attorney 

 CARLOTTA P. WELLS 

Assistant Director, Federal Programs Branch 

6

 In fact, if Plaintiff had adequately alleged that the LOA substantially burdened his religious 

exercise, he would necessarily concede that his religious exercise was the precise things the LOA 

was issued for: contemptuous, insubordinate speech in a military uniform at a military ceremony. 

This concession, combined with the military’s weighty interests in discipline and good order, make 

plain that the Air Force’s decision to discipline Plaintiff for his speech was consistent both with 

strict scrutiny and with the First Amendment standards specifically applicable to military 

discipline. See supra Sections II.A.2 and II.A.3. 

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________/S/________ 

 ROBERT W. MEYER 

 Trial Attorney 

 U.S. Department of Justice 

 Civil Division, Federal Programs Branch 

 1100 L St. NW 

 Washington, D.C. 20005 

 Tel: (202) 305-0872 

 E-mail: robert.w.meyer@usdoj.gov 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 1, 2024, a true and correct copy of the foregoing 

document was filed electronically with the court and has been sent to counsel of record via the 

court’s electronic filing system. 

 /s/______ 

Robert W. Meyer 

 

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