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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
AIR FORCE OFFICER, on behalf of herself
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and all others similarly situated,
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Case No. 5:22-cv-00009-TES
Plaintiff,
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v.
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LLOYD J. AUSTIN, III, in his
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official capacity as Secretary of Defense;
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FRANK KENDALL, III, in his
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official capacity as Secretary of the Air Force; and )
ROBERT I. MILLER, in his
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official capacity as Surgeon General of the
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Air Force,
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Defendants.
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PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO STAY DISTRICT COURT
PROCEEDINGS PENDING APPEAL
Defendants are determined to try to delay this case while they continue to purge religious
service members from the military. Their present motion to stay proceedings pending their
appeal of Air Force Officer’s preliminary injunction, filed only after Defendants waited 56 days
to file their notice of appeal, is just their latest attempt to do so. Defendants’ motion would
“unduly prejudice” and present a “tactical disadvantage” to Plaintiffs.1 Tomco Equip. Co. v.
Southeastern Agri-Systems, Inc., 542 F. Supp.2d 1303, 1307 (N.D. Ga. 2008). See also Briggs &
Stratton Corp. v. Concrete Sales & Servs., Inc., 166 F.R.D. 43, 47 (M.D. Ga. 1996) (“It would be
inequitable and prejudicial to plaintiff’s interests if the court were to stay this action for recovery
of these sums until South Carolina obtains a final ruling concerning policy coverage applicable
1 Herein, “Additional Representatives” refers to proposed plaintiffs and class representatives Air
Force NCO, Air Force Special Agent, and Air Force Engineer; “Plaintiff” refers to Air Force
Officer; and “Plaintiffs” refers to Air Force Officer and the Additional Representatives.
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to only one party to this action.”). A stay would unquestionably cause undue, prejudicial delay in
Plaintiffs’ attempt to secure justice for themselves and putative class members against the Air
Force’s categorical denial of their requests for religious accommodation from its COVID-19
vaccine mandate, including to ensure that the Air Force uses only the “least restrictive means”
necessary to further its alleged compelling interests in achieving 100% vaccination (except for
the thousands of service members with secular exemptions), in accord with the Religious
Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb-1(b)(2). “The proponent of a stay bears the
burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997). Defendants do not
come close to satisfying that burden here.
A.
Defendants’ present motion is just their latest delay tactic.
“[E]vidence of dilatory motives” is critically relevant in considering stay motions.
Advanced Micro Devices, Inc. v. LG Elecs., No. 14-cv-01012-SI, 2015 WL 545534, at *4 (N.D.
Cal. Feb. 9, 2015). See also Clinton, 520 U.S. at 707-08. This Court should consider Defendants’
motion in light of their other dilatory tactics including: (1) groundlessly moving to strike
Plaintiff’s First Amended Complaint [Doc. 60], even though Defendants now expressly concede
that the First Amended Complaint is in fact the “current operative complaint” unless and until
the Court deems the Second Amended Complaint filed (Motion at 3 n.1),2 (2) obtaining a
temporary stay of the case pending resolution of the motion to strike [Doc. 61, 62], (3) waiting
56 days3 to file their notice of appeal, and (4) opposing the Motion for Leave to File the Second
2 While Defendants now concede that the First Amended Complaint is the “current operative
complaint,” when they filed their Motion to Strike, they claimed, “it is unclear whether her
original Complaint or [First] Amended Complaint is currently her operative pleading.” [Doc. 61
at 3 n.1].
3 By contrast, Defendants gave service members at most five calendar days to appeal the denials
of their religious accommodation requests [Doc. 2-15, 65-4, 65-11, 65-18] and no further right to
appeal [Doc. 2-16, 65-7, 65-13, 65-20].
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Amended Complaint and to Add the Additional Representatives and/or for Intervention while
offering no argument whatsoever in opposition to the Additional Representatives’ Motion for
Intervention under Rule 24 and offering spurious arguments in response to the Motion for Leave
[see Doc. 72]. The Court should not grant Defendants’ present motion and should not allow them
to delay proceedings any further.
B.
A stay would cause severe prejudice and present a tremendous tactical
disadvantage to Plaintiffs.
A stay would clearly “unduly prejudice [and] present a tactical disadvantage to the
nonmovant[s].” Tomco Equip. Co., 542 F. Supp.2d at 1307. It would prevent Plaintiffs from
obtaining even minimal class relief in this case, potentially for years, see Austin v. U.S. Navy
Seals 1-26, 142 S. Ct. 1301, 1304 (2022) (Alito, J., dissenting) (noting the appellate process in
these cases “may take years”), while the Air Force continues to purge religious service members
from its ranks4 and issues irreparably harmful reprimands against those who are unvaccinated for
religious reasons. See, e.g., Doc. 65-15 at ¶ 2 (March 18, 2022 Letter of Reprimand informing
Air Force Special Agent, who is already a putative class member under the First Amended
Complaint: “You are hereby reprimanded!” for being “in violation of Failure to Obey an Order,
Article 92, Uniform Code of Military Justice”; threatening punishment after 45 days). At least
one Air Force service member (and putative class member) currently faces court-martial for
declining the COVID-19 vaccine based on a religious objection.5 Even the U.S. Solicitor General
4 Compare https://www.af.mil/News/Article-Display/Article/2989918/daf-covid-19-statistics-
apr-19-2022/ (1,882 final denials of religious accommodation requests as of April 18, 2022) with
https://www.af.mil/News/Article-Display/Article/2959594/daf-covid-19-statistics-march-2022/
(1,502 final denials of religious accommodation requests as of March 28, 2022).
5 Jessica Chasmar, Air Force Sergeant faces court-martial over vaccine refusal in apparent
‘discrimination’ of Christians: lawyer, FOX NEWS (Apr. 20, 2022),
https://www.foxnews.com/politics/air-force-court-martial-covid-19-vaccine-targeted-
discrimination-christians.
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has not argued that formal reprimands, and corresponding proceedings under Article 92 of the
Uniform Code of Military Justice, are valid “least restrictive means” under RFRA for advancing
the military’s interests in achieving total vaccination of service members (except for the
thousands of service members with medical and administrative exemptions). See generally
Response in Opposition to Emergency Application for Injunction Pending Appeal or for
Certiorari before Judgment, U.S. Solicitor General, April 15, 2022, Jonathan Dunn v. Austin,
21A599 [Doc. 75-4]; see also Singh v. McHugh, 185 F.Supp.3d 201, 227 (D.D.C. 2016) (noting
that while “in some cases, failure to follow the Army’s standards might signal a rebellious streak
or reflect a lack of impulse control or discipline . . . deviation from the rules” for religious
reasons “flows from a very different source”).
Defendants argue a stay will not prejudice the three Additional Representatives because
they could always just file a separate lawsuit (Motion at 3), but that is a transparent
acknowledgment of their intent to present a tactical disadvantage to the Additional
Representatives whose motion for intervention Defendants do not oppose (see Doc. 72 at 1-2), as
well as a tactical disadvantage to the entire putative class whom the Additional Representatives
seek to represent. The Additional Representatives have already filed their initial pleadings and
moving papers in this Court (see Doc. 63 to 66), which Court Defendants inappropriately
referred to as “friendly” to Plaintiffs. [Doc. 69 at 14, 15 n.5]. See Kent v. Vilsak, No. 3:21-cv-
540-NJ, 2021 WL 6139523, at *3 (S.D. Ill. Nov. 10, 2021) (denying similar discretionary stay
motion by U.S. Department of Justice in class action challenge to racial classifications in federal
loan assistance program for socially disadvantaged farmers and ranchers, noting the “tactical
disadvantage” it would impose on plaintiffs). This is the exact opposite of “promot[ing] judicial
economy and preserv[ing] the resources of the parties and this Court” (Motion at 2), especially
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since the Additional Representatives and putative class members are seeking relief from the
consequences of the exact same “illusory and insincere” process this Court has already
thoroughly considered in its earlier grant of preliminary injunctive relief in favor of Air Force
Officer. See Air Force Officer v. Austin, No. 5:22-cv-9-TES, 2022 WL 468799 (M.D. Ga. Feb.
15, 2022). In short, Defendants seek to cause yet more needless delay of the proceedings.
Indeed, a stay would unfairly “force[] the manner in which” the Additional
Representatives (who are also current putative class members) challenge the Air Force’s denial
of effectively all religious exemptions to its COVID-19 vaccine mandate. Kent, 2021 WL
6139523, at *3. Defendants’ request would further cause the Additional Representatives and
putative class members to “continue to be delayed if the Court stays the case pending the” appeal
in this and other cases, a well-recognized tactical disadvantage. Id.
Notably, Defendants nowhere promise not to proceed with formal reprimands or other
irreparable punitive measures against Air Force Special Agent or any other putative class
member in the meantime, notwithstanding the clearest command of RFRA to impose only the
least restrictive means of achieving, here, total vaccination in the Air Force (except for the
thousands of secular exemptions already granted and the blanket exemption for clinical-trial
participants). It is more difficult to enjoin such unlawful conduct after it occurs. “Mandatory”
injunctions that require undoing the consequences of unlawful conduct are generally
“disfavored” and require that “the facts and law clearly favor the moving party,” as opposed to
“prohibitory” injunctions that merely “restrain” Defendants from taking illegal action.
McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 n.2 (11th Cir. 1998). See also
Poffenbarger v. Kendall, No. 3:22-CV-1, 2022 WL 594810, at *20 (S.D. Ohio Feb. 28, 2022)
(issuing preliminary injunction in favor of plaintiff but expressly declining to order revocation of
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Letter of Reprimand or remove plaintiff from “no pay / no points” status). Staying proceedings
here may subject the putative class and Additional Representatives to consequences requiring
“disfavored” mandatory injunctions in the future, instead of granting a prohibitory injunction
now before these service members suffer such non-least-restrictive punishments.
To be clear, depending on when the Court issues class-wide relief (if it issues such relief),
a mandatory injunction may be necessary to some extent with respect to some service
members—if, for example, they need to be reinstated or Letters of Reprimand must be
revoked—in which case the Court can and should issue such relief. But the higher the number of
service members requiring mandatory injunctive relief, the higher the potential for prejudice.
McDonald’s, 147 F.3d at 1306; Poffenbarger, 2022 WL 594810, at *20.
C.
The Additional Representatives have exhausted their administrative
remedies.
Defendants groundlessly assert that a stay would not unduly prejudice the Additional
Representatives because they have supposedly “not exhausted their administrative remedies”
(Motion at 3). They do not and cannot offer any basis for this assertion. All three Additional
Representatives undisputedly have received final denials of their requests for religious
accommodations [Doc. 65-7, 65-13, 65-20]. This Court has already determined that receipt of
such a final denial constitutes an exhaustion of administrative remedies. Air Force Officer, 2022
WL 468799, at *6.
D.
Other courts considering military vaccine mandate issues have not granted
stays.
Defendants also argue that staying the case would be “consistent with how other courts . .
. have handled similar matters” (Motion at 4, emphasis added), but they point only to the Middle
District of Florida’s non-action to date on military service members’ motion for class-wide relief,
and on two recent requests for emergency relief, in Navy Seal 1 v. Biden, 8:21-cv-2429 (M.D.
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Fla.). That is a far cry from an affirmative, potentially years-long, stay of all proceedings in a
case, especially considering that the Middle District of Florida is the same court that recently
declared that “the military is most likely unable to establish . . . that permitting the relatively
small number of RFRA objectors, even if every request for exemption . . . were sincere and
successful, to serve without adverse consequences to their standing and the terms and conditions
of their service will adversely affect the public’s interest in the maintenance and readiness of the
nation’s military forces.” Navy Seal 1, No. 8:21-cv-2429, 2022 WL 483832, at *4 (M.D. Fla.
Feb. 2, 2022) (emphasis added). Tellingly, Defendants point to no other district court that has
granted a similar discretionary stay of proceedings in a military service member’s challenge to
the denial of a religious exemption request from the military’s COVID-19 vaccine mandate.
E.
A stay would not “simplify the issues.”
Awaiting the results of appeals in this and other cases will not “simplify the issues” in
this Court, Tomco Equip. Co., 542 F. Supp.2d at 1307, because Plaintiffs raise already narrow
religion-based challenges under RFRA and the First Amendment. The issues would be simplified
if this Court ruled on class-wide relief, and did so in the near future, allowing the losing parties
to appeal and the Court of Appeals to consider Air Force Officer’s individual relief together with
related class-wide relief issues.
Further, Plaintiffs’ challenge to the mandates under the Administrative Procedure Act, for
example, is not at issue in Defendants’ pending appeals in this or (to Plaintiffs’ knowledge) any
other military vaccine cases. See Air Force Officer, 2022 WL 468799, at *6 n.7 (refraining from
ruling on APA claim given the likelihood of success on the religion claims). Thus, Defendants’
appeal in this or other cases will not have a substantial or controlling effect on all the claims and
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issues here. Miccosukee Tribe of Indians v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1198 (11th
Cir. 2009).
F.
Dunn v. Austin does not justify a stay.
To the extent Defendants suggest the Supreme Court’s recent summary denial of
emergency injunctive relief in Dunn v. Austin, 21A599 (April 18, 2022), somehow justifies
staying proceedings in this case, Defendants are mistaken. Notably, Lt. Col. Jonathan Dunn’s
application for an injunction pursuant to the All Writs Act [Doc. 75-3 at ii, 8] “demand[ed] a
significantly higher justification than a request for a stay” and should be granted “sparingly and
only in the most critical and exigent circumstances.” S. Bay United Pentecostal Church v.
Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (internal quotes omitted). And
it is well settled that Supreme Court denials of stay applications “cannot have precedential or
persuasive effect,”6 since they are “not [] decision[s] on the merits of the underlying legal
issues.” Ind. State Police Pension Tr. v. Chrysler LLC, 556 U.S. 960, 960 (2009). The same is a
fortiori true of denials of even more rare emergency injunctions under the All Writs Act. Accord
Does 1-3 v. Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J., concurring) (noting agreement with denial
of All Writs Act injunction as “a discretionary judgment about whether the Court should grant
review in the case,” separate and apart from “an assessment of the underlying merits,” in part
given the request to grant relief is “on a short fuse without the benefit of full briefing and oral
argument”).7 While Plaintiffs supported Lt. Col. Dunn’s application [Doc. 75-2], its summary
6 McFadden and Kapoor, The Precedential Effect of the Supreme Court’s Emergency Stays, 44
Harv. J. Law and Public Pol’y 827, 849-50 (Summer 2021).
7 Further, the Solicitor General argued that an emergency injunction was especially inappropriate
in the individual case of Dunn because Lt. Col. Dunn engaged in a “shocking lack of military
decorum” by responding to the denial of his religious exemption request with a memo stating
“NUTS!,” which was arguably the equivalent of saying “Go to hell,” and because the arguably
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denial was not surprising and is certainly not precedential or indicative of how the Supreme
Court would ultimately rule on the merits in this case.
G.
Conclusion.
For all of these reasons, Defendants should not be permitted to delay justice any longer.
The Court should deny Defendants’ motion to stay proceedings in this case.
political nature of his religious objection “underscore[d]” his lack of “clear entitlement to relief.”
[Doc. 75-4 at 11 n.1, 20, 38]. None of those circumstances are present here.
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Dated: April 22, 2022
Respectfully submitted,
/s/ Adam S. Hochschild
Stephen Crampton, pro hac vice
Michael R. Hirsh, GA #357220
THOMAS MORE SOCIETY – Senior Counsel
Hirsh Law Office, LLC
PO Box 4506
2295 Towne Lake Parkway
Tupelo, MS 38803
Suite 116-181
(662)255-9439
Woodstock, GA 30189
scrampton@thomasmoresociety.org
(678)653-9907
michael@hirsh.law
Adam S. Hochschild, pro hac vice
Hochschild Law Firm
THOMAS MORE SOCIETY – Special Counsel
PO Box 401
Plainfield, VT 05667
(314)503-0326
adam@hochschildlaw.com
Mary Catherine Hodes, pro hac vice
THOMAS MORE SOCIETY – Special Counsel
112 S. Hanley Rd., Second Floor
Clayton, MO 63105
(314)825-5725
mchodes@thomasmoresociety.org
Michael McHale, pro hac vice
THOMAS MORE SOCIETY – Counsel
10506 Burt Circle, Ste. 110
Omaha, NE 68114
(402)501-8586
mmchale@thomasmoresociety.org
Paul M. Jonna, pro hac vice
LiMandri & Jonna LLP
THOMAS MORE SOCIETY – Special Counsel
P.O. Box 9520
Rancho Santa Fe, CA 92067
(858)759-994
pjonna@limandri.com
Counsel for Plaintiffs
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