Defendants’ Motion To Dismiss, Doc. 92 — AIR FORCE OFFICER v. AUSTIN
- Date
- 2022-05-11
Summary
Defendants' motion to dismiss, and in the alternative motion to sever, with a supporting memorandum, in Air Force Officer, et al. v. Lloyd J. Austin, III, Case No. 5:22-cv-00009-TES, in the U.S. District Court for the Middle District of Georgia, filed May 11, 2022 as Document 92. The defendants, sued in their official capacities, move to dismiss the Second Amended Class Complaint challenging the Air Force's COVID-19 vaccination requirement on religious grounds. The memorandum argues that the claims are not ripe, that no plaintiff has exhausted administrative remedies, and that the APA count fails to state a claim. It also argues that plaintiffs Air Force Special Agent and Air Force Engineer lack a connection to the forum and should be severed. Counsel from the U.S. Attorney's Office and the Department of Justice sign the 38-page filing.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 1 of 38
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
AIR FORCE OFFICER, AIR FORCE NCO,
AIR FORCE SPECIAL AGENT, and AIR
FORCE ENGINEER,
Plaintiffs,
v. Case No. 5:22-cv-00009-TES
LLOYD J. AUSTIN, III, in his official capacity
as Secretary of Defense; FRANK KENDALL,
III, in his official capacity as Secretary of the Air
Force; and ROBERT I. MILLER, in his official
capacity as Surgeon General of the Air Force,
Defendants.
DEFENDANTS’ MOTION TO DISMISS,
AND IN THE ALTERNATIVE, MOTION TO SEVER
For the reasons described in the attached memorandum, Defendants move to dismiss
Plaintiffs’ Second Amended Class Complaint. This Court lacks subject-matter jurisdiction because
Plaintiffs’ claims are not ripe for judicial review. See Fed. R. Civ. P. 12(b)(1). Plaintiffs’ claims are also
not justiciable since no Plaintiff has exhausted available administrative remedies. See Fed. R. Civ. P.
12(b)(1), (6). Plaintiff’s Third Cause of Action claiming a violation of the Administrative Procedure
Act (“APA”) should be dismissed for failure to state a claim upon which relief can be granted. Finally,
Plaintiffs Air Force Special Agent and Air Force Engineer have no connection to this forum and their
claims should be dismissed and/or severed. See Fed. R. Civ. P. 12(b)(2), (3); Fed. R. Civ. P. 21.
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 2 of 38
Dated: May 11, 2022 Respectfully submitted,
PETER D. LEARY BRIAN M. BOYNTON
United States Attorney Principal Deputy Assistant
Middle District of Georgia Attorney General
/s/ Lance Simon ALEXANDER K. HAAS
LANCE SIMON Director, Federal Programs Branch
Assistant United States Attorney
Georgia Bar No. 447643 ANTHONY J. COPPOLINO
ROGER C. GRANTHAM, JR. Deputy Director
Assistant United States Attorney
Georgia Bar No. 860338 /s/ Cassandra Snyder
United States Attorney’s Office ANDREW E. CARMICHAEL
300 Mulberry St., Suite 400 Senior Trial Counsel
P.O. Box 1702 ZACHARY A. AVALLONE
Macon, GA 31202 CODY T. KNAPP
Tel: (478) 621-2663 CASSANDRA M. SNYDER
Email: lance.simon@usdoj.gov Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 451-7729
Email: cassandra.m.snyder@usdoj.gov
Counsel for Defendants
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 3 of 38
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
AIR FORCE OFFICER, AIR FORCE NCO,
AIR FORCE SPECIAL AGENT, and AIR
FORCE ENGINEER,
Plaintiffs,
v. Case No. 5:22-cv-00009-TES
LLOYD J. AUSTIN, III, in his official capacity
as Secretary of Defense; FRANK KENDALL,
III, in his official capacity as Secretary of the Air
Force; and ROBERT I. MILLER, in his official
capacity as Surgeon General of the Air Force,
Defendants.
MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 4 of 38
TABLE OF CONTENTS
Introduction ....................................................................................................................................................................... 1
Background ........................................................................................................................................................................ 2
Argument ............................................................................................................................................................................ 4
I. Plaintiffs’ Claims Against the Civilian Vaccination Requirement Should Be Dismi ssed. ............ 4
A. The Court Lacks Jurisdiction Over Plaintiffs’ Challenge to the Civilian Vaccination
Requirement. ............................................................................................................................................................ 4
B. Plaintiffs’ Claims Against the Civilian Vaccination Requirement Lack Merit. ........................... 7
II. Military Vaccine Claims Are Not Ripe. .....................................................................................................10
III. Plaintiffs Who Chose Retirement Do Not Have Justiciable Claims. ..........................................12
IV. No Plaintiff Has Exhausted Their Administrative Remedies. .......................................................14
A. No Plaintiff Has Been Subject to Final Discipline............................................................................16
B. Exhaustion Includes Pursuing Relief through the Air Force Board for Correction of
Military Records. ...................................................................................................................................................18
V. The Court Lacks Jurisdiction Over Count Three (APA), and Plaintiffs Otherwise Fail to State
a Claim. .........................................................................................................................................................................19
VI. Air Force Special Agent and Air Force Engineer Have No Connection To This Forum and
Should be Severed and Dismissed. ......................................................................................................................22
VII. All Plaintiffs Are Misjoined. .....................................................................................................................23
Conclusion........................................................................................................................................................................25
iv
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 5 of 38
TABLE OF AUTHORITIES
Cases
Acevedo v. Allsup’s Convenience Stores, Inc.,
600 F.3d 516 (5th Cir. 2010) ...............................................................................................25
Ahmed v. Miller,
452 F. Supp. 3d 721 (E.D. Mich. 2020) ................................................................................25
Air Force Officer v. Austin,
--- F. Supp. 3d ----, 2022 WL 468799 (M.D. Ga. Feb. 15, 2022) ............................3, 12, 14, 15
Aktepe v. United States,
105 F.3d 1400 (11th Cir. 1997)............................................................................................20
Altschuld v. Raimondo,
No. 21-cv-02779, 2021 WL 6113563 (D.D.C. Nov. 8, 2021) ................................................10
Am. Fed’n of Gov’t Emps. Local 2018 v. Biden,
--- F. Supp. 3d ----, 2022 WL 1089190 (E.D. Pa. Apr. 12, 2022) ............................................ 5
Amergi ex rel. Amergi v. Palestinian Auth.,
611 F.3d 1350 (11th Cir. 2010)............................................................................................25
Anderson v. Moorer,
372 F.2d 747 (5th Cir. 1967) ...............................................................................................25
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................................................. 8
Barber v. Am.’s Wholesale Lender,
289 F.R.D. 364 (M.D. Fla. 2013) ............................................................................. 23, 24, 25
Best v. Adjutant Gen., State of Fla., Dep’t of Mil. Affs.,
400 F.3d 889 (11th Cir. 2005)............................................................................................... 5
Bois v. Marsh,
801 F.2d 462 (D.C. Cir. 1986) .............................................................................................19
Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981)............................................................................................18
Brass v. Biden,
No. 21-cv-2778, 2021 WL 6498143 (D. Colo. Dec. 23, 2021) ............................................... 3
v
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 6 of 38
Brnovich v. Biden,
--- F. Supp. 3d ---, 2022 WL 252396 (D. Ariz. Jan. 27, 2022) .............................................3, 6
Brown v. United States,
30 Fed. Cl. 227 (1993) ........................................................................................................12
Buchholz v. Meyer Njus Tanick, PA,
946 F.3d 855 (6th Cir. 2020) ................................................................................................ 7
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ............................................................................................................24
Canal A Media Holding, LLC v. USCIS,
964 F.3d 1250 (11th Cir. 2020)............................................................................................. 9
Carpenter v. Univ. of Ala. Health Servs. Found. PC,
773 F. App’x 507 (11th Cir. 2019) .......................................................................................14
Champagne v. Schlesinger,
506 F.2d 979 (7th Cir. 1974) ...............................................................................................19
Chappell v. Wallace,
462 U.S. 296 (1983) ............................................................................................................15
Chatman v. Hernandez,
805 F.2d 453 (1st Cir. 1986) ................................................................................................19
Christie v. United States,
518 F.2d 584 (Ct. Cl. 1975) ..................................................................................... 14, 16, 17
Church v. Biden,
--- F. Supp. 3d ----, No. 21-cv-2815, 2021 WL 5179215 (D.D.C. Nov. 8, 2021) ............ 6, 8, 15
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ............................................................................................................. 7
Coleman v. Quaker Oats Co.,
232 F.3d 1271 (9th Cir. 2000)..............................................................................................25
Crawford v. Tex. Army Nat’l Guard,
794 F.2d 1034 (5th Cir. 1986)..............................................................................................19
Davis v. United States,
589 F.3d 861 (6th Cir. 2009) ...............................................................................................19
vi
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 7 of 38
Defs. of Wildlife v. Bureau of Ocean Mgmt.,
684 F.3d 1242 (11th Cir. 2012)............................................................................................. 9
Denis v. Ige,
538 F. Supp. 3d 1063 (D. Haw. 2021) ..................................................................................22
Dep’t of Comm. v. New York ,
139 S. Ct. 2551 (2019) ........................................................................................................20
Doe #1 – #14 v. Austin,
--- F. Supp. 3d ----, 2021 WL 5816632 (N.D. Fla. Nov. 12, 2021).........................................21
Donovan v. Vance,
--- F. Supp. 3d ----, 2021 WL 5979250 (E.D. Wash. Dec. 17, 2021) ....................................6, 8
Elend v. Basham,
471 F.3d 1199 (11th Cir. 2006)............................................................................................10
Elgin v. Dep’t of Treasury,
567 U.S. 1 (2012)..............................................................................................................5, 6
Fallon v. Mercy Catholic Med. Ctr. of Se. Pa.,
877 F.3d 487 (3d Cir. 2017) ................................................................................................. 8
Feds for Med. Freedom v. Biden,
--- F. Supp. 3d ----, 2022 WL 188329 (S.D. Tex. Jan. 21, 2022) ............................................. 3
Focus on the Fam. v. Pinellas Suncoast Transit Auth.,
344 F.3d 1263 (11th Cir. 2003)............................................................................................12
Fornaro v. James,
416 F.3d 63 (D.C. Cir. 2005) ................................................................................................ 5
Friedman v. Clarkstown Cent. Sch. Dist.,
75 F. App’x 815 (2d Cir. 2003)............................................................................................. 8
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167 (2000) ............................................................................................................12
Fund for Animals, Inc. v. Rice,
85 F.3d 535 (11th Cir. 1996) ...............................................................................................10
Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528 (1985) ............................................................................................................21
vii
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 8 of 38
Gilligan v. Morgan,
413 U.S. 1 (1973).......................................................................................................... 14, 20
Golden Scorpio Corp. v. Steel Horse Bar & Grill,
596 F. Supp. 2d 1282 (D. Ariz. 2009) ..................................................................................23
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ............................................................................................................24
Gorsline v. U.S. Army Rsrv.,
13 F.3d 405 (10th Cir. 1993) ......................................................................................... 19, 20
Guitard v. U.S. Sec’y of Navy,
967 F.2d 737 (2d Cir. 1992) ................................................................................................19
Hargray v. City of Hallandale,
57 F.3d 1560 (11th Cir. 1995)........................................................................................ 13, 14
Hays Med. Ctr. v. Azar,
956 F.3d 1247 (10th Cir. 2020)............................................................................................10
Hodges v. Callaway,
499 F.2d 417 (5th Cir. 1974) ......................................................................................... 14, 18
Horn v. Schlesinger,
514 F.2d 549 (8th Cir. 1975) ...............................................................................................19
Horton v. City of St. Augustine,
272 F.3d 1318 (11th Cir. 2001)............................................................................................. 8
Jorden v. Nat'l Guard Bureau,
799 F.2d 99 (3d Cir. 1986) ..................................................................................................19
Kennedy v. Sec’y of Army,
191 F.3d 460 (9th Cir. 1999) ...............................................................................................19
Layman v. Harvey,
No. 8:05-cv-2208, 2007 WL 430678 (M.D. Fla. 2007) .........................................................18
Lloyd v. Sch. Bd. of Palm Beach Cnty.,
---F. Supp. 3d---, 2021 WL 5353879 (S.D. Fla. Oct. 29, 2021) ..............................................22
Mindes v. Seaman,
453 F.2d 197 (5th Cir. 1971) ........................................................................................... 1, 18
viii
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 9 of 38
Morrison v. Amway Corp.,
323 F.3d 920 (11th Cir. 2003)..............................................................................................10
Mullan v. Torrance,
9 Wheat. 537 (1824)............................................................................................................12
Nat’l Park Hosp. Ass’n v. Dep’t of the Interior,
538 U.S. 803 (2003) ............................................................................................................10
Nat’l Parks Conservation Ass’n v. Norton,
324 F.3d 1229 (11th Cir. 2003)............................................................................................. 9
Navy Seal 1 v. Biden,
--- F. Supp. 3d ----, 2021 WL 5448970 & n.1 (M.D. Fla. Nov. 22, 2021) ................................ 7
Oklahoma v. Biden,
--- F. Supp. 3d ---, 2021 WL 6126230 (W.D. Okla. Dec. 28, 2021) ........................................ 3
Parchman v. SLM Corp.,
896 F.3d 728 (6th Cir. 2018) ...............................................................................................24
Pike v. Johnson,
103 F. Supp. 3d 1362 (N.D. Ga. 2015) .................................................................................21
Roberts v. Roth,
No. CV 21-1797 (ABJ), 2022 WL 834148 (D.D.C. Mar. 21, 2022) ........................1, 11, 12, 16
Rockwell Int’l Corp. v. United States,
549 U.S. 457 (2007) ............................................................................................................12
Ross v. City of Perry,
396 F. App’x 668 (11th Cir. 2010) .......................................................................................14
Rostker v. Goldberg,
453 U.S. 57 (1981) ..............................................................................................................20
Rucker v. Sec’y of the Army,
702 F.2d 966 (11th Cir. 1983)..............................................................................................18
Rydie v. Biden,
No. 21-2359, 2022 WL 1153249 (4th Cir. Apr. 19, 2022) ............................................... 4, 5, 6
S. Bay United Pentecostal Church v. Newsom,
140 S. Ct. 1613 (2020) ........................................................................................................21
ix
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 10 of 38
Sanders v. McCrady,
537 F.2d 1199 (4th Cir. 1976)..............................................................................................19
Scarseth v. United States,
52 Fed. Cl. 458 (2002) .................................................................................................. 12, 13
Schlesinger v. Councilman,
420 U.S. 738 (1975) ...................................................................................................... 12, 15
Short v. Berger,
No. CV-22-00444, 2022 WL 1203876 (D. Ariz. Apr. 22, 2022)............................................14
Short v. Berger,
No. 22-cv-01151, 2022 WL 1051852 (C.D. Cal. Mar. 3, 2022) ............................11, 14, 15, 21
Smith v. Harvey,
541 F. Supp. 2d 8 (D.D.C. 2008) .........................................................................................11
Story v. Heartland Payment Sys., LLC,
461 F. Supp. 3d 1216 (M.D. Fla. 2020) ................................................................................22
Tellabs, Inc. v. Makor Issues & Rts., Ltd.,
551 U.S. 308 (2007) ............................................................................................................21
Toca Producers v. FERC,
411 F.3d 262 (D.C. Cir. 2005) .............................................................................................. 8
Toilet Goods Association v. Gardner,
387 U.S. 158 (1967) ............................................................................................................11
Torres v. Bank of Am., N.A.,
No. 8:17-cv-1534, 2017 WL 10398671 (M.D. Fla. Oct. 6, 2017) ..........................................25
Trump v. New York ,
141 S. Ct. 530 (2020) ...................................................................................................... 6, 10
Turcios v. Delicias Hispanas Corp.,
275 F. App’x 879 (11th Cir. 2008) .......................................................................................10
U.S. Postal Serv. v. Gregory,
534 U.S. 1 (2001)................................................................................................................. 7
United States v. Bauer,
84 F.3d 1549 (9th Cir. 1996) ................................................................................................ 8
x
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 11 of 38
United States v. Fausto,
484 U.S. 439 (1988) ............................................................................................................. 5
Von Hoffburg v. Alexander,
615 F.2d 633 (5th Cir. 1980) ...............................................................................................18
Walter v. BMW of N. Am.,
8:18-cv-02875, 2019 WL 6251366 (M.D. Fla. Nov. 22, 2019) ..............................................23
Walden v. Ctrs. for Disease Control & Prevention,
669 F.3d 1277 (11th Cir. 2012)............................................................................................24
Wigand v. W. City Partners, Inc.,
No. 07-61492, 2008 WL 384394 (S.D. Fla. Feb. 11, 2008) ...................................................23
Wilbur v. United States,
767 F. App’x 873 (11th Cir. 2019) ........................................................................................ 5
Winck v. England,
327 F.3d 1296 (11th Cir. 2003)...................................................................................... 18, 21
Statutes
5 U.S.C. § 704 ......................................................................................................................... 9
5 U.S.C. § 706(2)(A) ..............................................................................................................20
5 U.S.C. § 7513(a) ................................................................................................................... 6
5 U.S.C. § 7513(b)................................................................................................................... 4
10 U.S.C. § 1552(a)(1)............................................................................................................18
28 U.S.C. § 1391(e) ................................................................................................................22
Rules
Fed. R. Civ. P. 12(b)(1) ........................................................................................................... 1
Fed. R. Civ. P. 12(b)(2) ........................................................................................................... 1
Fed. R. Civ. P. 12(b)(6) ..........................................................................................................20
Fed. R. Civ. P. 20(a)(1)...........................................................................................................23
Fed. R. Civ. P. 20(a)(1)(A)......................................................................................................23
xi
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 12 of 38
Fed. R. Civ. P. 21 .................................................................................................................... 1
Other Authorities
Executive Order 14043 .................................................................................................... passim
xii
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 13 of 38
INTRODUCTION
Plaintiffs—four members of the Air Force—challenge the Air Force’s COVID-19 civilian and
military vaccination requirement as inconsistent with their religious beliefs. Plaintiffs’ claims, brought
pursuant to the Religious Freedom Restoration Act (“RFRA”), the First Amendment, and the
Administrative Procedure Act (“APA”), should be dismissed for several reasons.
First, to the extent that Plaintiffs challenge the civilian vaccination requirement, their claims are
precluded by the exclusive judicial review provisions applicable to federal workplace disputes, and
they fail to meet the bare constitutional minimum of ripeness. Plaintiffs’ claims also are wholly without
merit because the civilian vaccination requirement permits religious exemptions, has not yet been
applied to any relevant Plaintiff, and is amply justified under law.
This Court also lacks jurisdiction over challenges to the military vaccination requirement. None
of the Plaintiffs has a ripe claim until the Air Force makes a final decision on what—if any—discipline
or adverse consequence to impose for failure to vaccinate against COVID-19. As another court put
it, “While plaintiff argues that his discharge is likely, he has not been discharged at this point,” so
“Plaintiff’s claim is not constitutionally ripe because his alleged injury is not certainly impending.”
Roberts v. Roth, No. CV 21-1797 (ABJ), 2022 WL 834148, at *4 (D.D.C. Mar. 21, 2022).
In addition, Plaintiffs’ claims are nonjusticiable because none has exhausted their
administrative remedies. “[A] court should not review internal military affairs in the absence of . . .
exhaustion of available intraservice corrective measures.” Mindes v. Seaman, 453 F.2d 197, 201 (5th
Cir. 1971). Here, the Air Force has not made a final decision what—if any—adverse consequences a
Plaintiff will receive, nor have Plaintiffs completed available administrative appeals, including to the
Air Force Board for Correction of Military Records (“BCMR”). Relatedly, Plaintiffs Air Force Officer
and Air Force NCO, who have requested retirement, also do not have justiciable claims.
Plaintiffs’ APA challenge to the military’s policy that prior infection cannot be the basis for a
1
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 14 of 38
medical exemption to the vaccination requirement also fails. Plaintiffs have no standing to raise this
claim, and have not exhausted administrative remedies, because none have sought or been denied a
medical exemption because of prior infection. On the merits of the claim, the military’s policy is not
contrary to any law or Air Force policy. And even viewed in the light most favorable to Plaintiffs, the
complaint does not allege facts sufficient to show that the Air Force’s policy—which conforms with
Center for Disease Control (“CDC”) guidance—is arbitrary or capricious in violation of the APA.
Finally, all Plaintiffs’ claims should be severed and the claims of the two Plaintiffs who have
no connection to Georgia should be dismissed without prejudice to refiling in an appropriate forum.
BACKGROUND
Defendants have previously set forth the background on the COVID-19 pandemic, the DoD
COVID-19 vaccination directive, and the Air Force’s implementing guidance. See Defs.’ Opp’n to
Pls.’ Mot. for TRO and Prelim. Inj., ECF No. 38. Also at issue in this case, though not previously
briefed, is the vaccination requirement for federal civilian employees, including civilian employees of
the Air Force. So Defendants begin here.
President Biden imposed the civilian vaccination requirement on September 9, 2021, through
Executive Order 14043, in order to “ensur[e] the health and safety of the Federal workforce and the
efficiency of the civil service.” See Exec. Order No. 14043 § 1. Executive Order 14043 instructs
agencies to “implement, to the extent consistent with applicable law, a program to require COVID -
19 vaccination for all of [their] Federal employees.” Id. §§ 1, 2. The Executive Order also directs the
Safer Federal Workforce Task Force to “issue guidance . . . on agency implementation of this
requirement.” Id. § 2. Task Force guidance recognizes that federal employees may be eligible for
exceptions to the vaccination requirement based on a medical condition or sincerely held religious
objection, see Task Force, Frequently Asked Questions (“FAQs”), Vaccinations,
https://perma.cc/VEU4-VWAR (“Vaccination FAQs”), and indicates that each agency should
2
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 15 of 38
“follow its ordinary process to review and consider what, if any, accommodation it must offer” under
applicable federal law, see id. (choose “Enforcement of Vaccination Requirement for Employees”); see
also Template: Request for a Medical Exception to the COVID-19 Vaccination Requirement,
https://perma.cc/LD7Q-D5JZ; Template: Request for a Religious Exception to the COVID-19
Vaccination Requirement, https://perma.cc/6A6D-EPH9. The guidance further explains that an
employee should not be subject to discipline while her request is under consideration, and that if an
exception is denied, the employee should be given two weeks to receive the first (or only) dose of a
COVID-19 vaccine before being subject to discipline. See Enforcement FAQs.1 Following the
issuance of the Executive Order and applicable guidance, the Air Force took steps to implement the
vaccination requirement for its civilian employees. See SAC ¶ 45.
Air Force Officer filed this case on January 6, 2022, Compl., ECF No. 1, and moved for a
temporary restraining order and preliminary injunction, Mot. for TRO, ECF No. 2. This Court
granted Air Force Officer’s preliminary injunction as to the military vaccination requirement on
February 15, 2022. Air Force Officer v. Austin, --- F. Supp. 3d ----, 2022 WL 468799, at *6 (M.D. Ga.
Feb. 15, 2022). Defendants have appealed that decision. ECF No. 76. After the Court granted leave
to file an amended complaint, Plaintiff filed a Second Amended Complaint that added three
pseudonymous Plaintiffs—Air Force NCO, Air Force Engineer, and Air Force Special Agent. Second
Am. Compl., ECF No. 84 (“SAC”). Defendants now move to dismiss all claims.
1 Executive Order 14043 has been the subject of extensive litigation nationwide, and courts have rejected a variety of
challenges to it. See, e.g., Oklahoma v. Biden, --- F. Supp. 3d ---, No. 21-cv-1136-F, 2021 WL 6126230, at *10 (W.D. Okla.
Dec. 28, 2021); Brnovich v. Biden, --- F. Supp. 3d ---, No. 21-cv-1568, 2022 WL 252396, at *8, *12 (D. Ariz. Jan. 27, 2022);
Brass v. Biden, No. 21-cv-2778, 2021 WL 6498143, at *3 (D. Colo. Dec. 23, 2021) report and recommendation adopted, 2022 WL
136903 (D. Colo. Jan. 14, 2022). Nevertheless, on January 21, 2022, a district court entered a nationwide preliminary
injunction, prohibiting the government from “implementing or enforcing Executive Order 14043 until this case is resolved
on the merits.” Feds for Med. Freedom v. Biden, --- F. Supp. 3d ----, 2022 WL 188329, at *8 (S.D. Tex. Jan. 21, 2022). That
decision has since been reversed on appeal, see Feds for Med. Freedom v. Biden, 30 F.4th 503, 511 (5th Cir. 2022), but the
injunction remains in place pending issuance of the Fifth Circuit’s mandate.
3
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 16 of 38
ARGUMENT
I. Plaintiffs’ Claims Against the Civilian Vaccination Requirement Should Be Dismissed.
A. The Court Lacks Jurisdiction Over Plaintiffs’ Challenge to the Civilian Vaccination
Requirement.
To the extent Plaintiffs challenge the Air Force’s civilian vaccination requirement, this Court
lacks jurisdiction over those claims. First, through the Civil Service Reform Act (“CSRA”), Congress
has precluded district court jurisdiction over challenges to federal personnel actions brought by federal
civilian employees, including challenges to discipline imposed for failing to comply with the civilian
vaccination requirement. Second, Plaintiffs’ challenge to the civilian vaccination requirement is
unripe. The only Plaintiff in this case who is subject to the civilian vaccination requirement, Air Force
Officer, has a pending request for an exemption. She may yet receive the requested exemption, and
she will not be subject to any discipline while her exemption request is pending. Thus, even if district
court jurisdiction were not precluded, the Court would still lack jurisdiction on ripeness grounds.
1. The CSRA sets forth the review procedures that apply when a federal employee challenges
an employment action. Employees facing certain “proposed” major adverse actions are entitled to
notice, an opportunity to respond, legal representation, and written reasons supporting the employing
agency’s decision. 5 U.S.C. § 7513(b). If an agency ultimately decides to take a major adverse action—
suspension for more than 14 days, reduction in grade, reduction in pay, removal, or furlough of 30
days or less, id. § 7512—that action may generally be appealed directly to the Merit Systems Protection
Board (“MSPB”), with judicial review in the Federal Circuit. See id. §§ 7513(d), 7703(b)(1). Corrective
action for a less severe “personnel action” may generally be sought, depending on the nature of the
allegation, through agency administrative or negotiated grievance procedures, or from the Office of
Special Counsel. See id. § 1214(a)(3); id. § 2302. Judicial review in cases concerning “personnel actions”
is also channeled to the Federal Circuit. Id. §§ 1214(c), 7703(b)(1)(A). In both types of cases,
“prevailing employees are generally entitled to reinstatement, back pay, and attorneys’ fees.” Rydie v.
4
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 17 of 38
Biden, No. 21-2359, 2022 WL 1153249, at *4 (4th Cir. Apr. 19, 2022).
Altogether, the CSRA provides “an integrated scheme of administrative and judicial review,
designed to balance the legitimate interests of the various categories of federal employees with the
needs of sound and efficient administration.” United States v. Fausto, 484 U.S. 439, 445 (1988). From
this framework, “it is ‘fairly discernible’ . . . that Congress intended covered employees appealing
covered agency actions to proceed exclusively through the statutory review scheme.” Elgin v. Dep’t of
Treasury, 567 U.S. 1, 10 (2012). Thus, where the CSRA applies, it precludes district court jurisdiction.
See Elgin , 567 U.S. at 8; see also Best v. Adjutant Gen., State of Fla., Dep’t of Mil. Affs., 400 F.3d 889, 894–
95 (11th Cir. 2005) (CSRA precludes APA claims). No relief is available outside of the CSRA’s
channels because “so far as review of determinations under the CSRA is concerned, what you get
under the CSRA is what you get.” Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir. 2005) (Roberts, J.); see
also Wilbur v. United States, 767 F. App’x 873, 877 (11th Cir. 2019) (CSRA is “ a federal employee’s
exclusive route to relief for federal personnel actions”).
The CSRA precludes challenges to the Air Force’s civilian vaccination requirement. Plaintiffs
(specifically, Air Force Officer) complain that refusal to comply with that requirement will result in
removal from federal civilian employment, see, e.g., SAC ¶ 124, and the relief they seek is “to avoid
discharge for refusing to comply with Executive Order 14043,” as implemented by the Air Force. Feds
for Med. Freedom, 30 F.4th at 511. “This sort of employment-related relief is ‘precisely the kind[] of
relief that the CSRA empowers the MSPB and the Federal Circuit to provide,’” id. (quoting Elgin, 567
U.S. at 22), and so, as several courts have held, district courts lack jurisdiction over challenges to
federal civilian employee vaccination requirements. See id. at 508–11; Rydie v. Biden, 2022 WL 1153249,
at *3 (“Because we conclude that Congress intended for the CSRA to cover [the plaintiffs’] claims, we
hold that the district court lacked jurisdiction.”); Am. Fed’n of Gov’t Emps. Local 2018 v. Biden, --- F.
Supp. 3d ----, 2022 WL 1089190, at *5 (E.D. Pa. Apr. 12, 2022) (“If [plaintiffs] seek relief, whatever it
5
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 18 of 38
may be, they must proceed before the MSPB and then appeal to the Federal Circuit.”).
2. Even if the CSRA did not preclude challenges to the civilian vaccination requirement, this
Court would still lack jurisdiction because Plaintiffs’ claims against that requirement are unripe. A
dispute is constitutionally unripe if it is “dependent on contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Trump v. New York, 141 S. Ct. 530, 535 (2020) (per curiam)
(internal quotation marks omitted). And here, Plaintiffs’ claims are plainly unripe both because no
Plaintiff is currently subject to discipline for failure to comply with the civilian vaccination
requirement, and because any possible discipline remains uncertain and speculative. Plaintiff Air Force
Officer alleges that she has submitted a request for a religious exemption from the requirement, see
SAC ¶ 111, and that her request “is still pending,” id. ¶ 126. As discussed, so long as her request is
pending, she will not be subject to discipline. See supra p. 4; Ex. 3, Rigsbee Decl. ¶ 7. And even if her
request were denied, it is uncertain what form of discipline she might face. Cf. Rydie, 2022 WL
1153249, at *8 (noting possibility that agencies “may determine that [adverse] action against [the
plaintiffs] wouldn’t ‘promote the efficiency of the service’” (quoting 5 U.S.C. § 7513(a))).
It is immaterial that Air Force Officer believes a ruling on her request “could be issued any
day,” SAC ¶ 127, or that she “expect[s] that the Air Force [will] deny her civilian request” based on
her perception of its treatment of requests for exemption from the military vaccination requirement,
id. ¶ 129. Indeed, multiple courts considering similar challenges to civilian employee vaccination
requirements have held that potential injuries based on “hypothetical predictions of the outcomes of
. . . exemption requests” are “insufficient to render an issue ripe for review.” Church v. Biden, --- F.
Supp. 3d ----, No. 21-cv-2815, 2021 WL 5179215, at *9 (D.D.C. Nov. 8, 2021) (internal quotation
marks omitted); see also Donovan v. Vance, --- F. Supp. 3d ----, No. 4:21-cv-5148, 2021 WL 5979250
(E.D. Wash. Dec. 17, 2021); Brnovich, 2022 WL 252396. Moreover, Executive Order 14043 “expressly
require[s] religious exemption” from federal agencies’ civilian employee COVID-19 vaccination
6
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 19 of 38
requirements where such exemptions are required by law, and the Executive Order directs federal
agencies to consider such exemption requests on an individualized basis. Navy Seal 1 v. Biden, --- F.
Supp. 3d ----, 2021 WL 5448970, at *2 & n.1 (M.D. Fla. Nov. 22, 2021). Plaintiffs’ unsupported
assumption that the Air Force will not properly comply with this directive is inconsistent with the
“presumption of regularity [that] attaches to the actions of Government agencies,” U.S. Postal Serv. v.
Gregory, 534 U.S. 1, 10 (2001), and does not render their claims appropriate for judicial review. See also
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (plaintiffs “cannot manufacture standing merely
by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly
impending”); cf. Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 867 (6th Cir. 2020) (plaintiff “cannot
establish standing based on his allegations of anxiety”). At minimum, allowing the Air Force to
consider Air Force Officer’s circumstances and exemption request—and to decide what discipline, if
any, would be warranted if her request is denied and she remains unvaccinated—would crystallize any
dispute and create a concrete record to guide the ultimate resolution of the issues. For now, however,
Plaintiffs present only a premature, speculative grievance that cannot support jurisdiction.
B. Plaintiffs’ Claims Against the Civilian Vaccination Requirement Lack Merit.
Even if this Court had jurisdiction over Plaintiffs’ claims against the civilian vaccination
requirement, those claims would still fail on the merits. Accordingly, they should be dismissed.
1. In their First and Second Causes of Action, Plaintiffs assert that the civilian vaccination
requirement violates RFRA and the Free Exercise Clause. But as already noted, Executive Order
14043 “expressly require[s] religious exemption” where appropriate, Navy Seal 1, 2021 WL 5448970,
at *2 & n.1, and directs federal agencies to consider exemption requests on an individualized basis,
applying RFRA’s standards.2 Moreover, it is undisputed that, prior to the nationwide injunction in
2 RFRA “provides greater protection . . . than is available under the First Amendment,” so “if a [plaintiff’s] RFRA claim
fails, the [plaintiff’s] First Amendment claim necessarily fails.” Navy Seal 1, 2021 WL 5448970, at *9 (citation omitted).
7
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 20 of 38
Feds for Medical Freedom, the Air Force had instituted a process for evaluating claims for religious
exemptions. See, e.g., SAC ¶ 293. On its face, then, the civilian vaccination requirement imposes no
burden, substantial or otherwise, on religious exercise. Cf. Horton v. City of St. Augustine, 272 F.3d 1318,
1329 (11th Cir. 2001) (facial challenge is “the most difficult challenge to mount successfully” because
challengers must “establish that no set of circumstances exists under which the [challenged
government action] would be valid” (citation omitted)); see also Donovan, 2021 WL 5979250, at *6–7
(rejecting facial challenge to EO 14043).
2. To the extent Plaintiffs assert as-applied RFRA and free exercise claims, those claims fail
because the civilian vaccination requirement has not been applied to any relevant Plaintiff. The Air
Force has not yet reached even an initial decision with respect to Air Force Officer’s exemption
request, and there is no record documenting the agency’s reasons for any potential denial of that
request. See Church, 2021 WL 5179215, at *9 (the “absence of any factual record providing the basis
for any denial of a religious accommodation request (if, in in fact any plaintiff’s request is denied)
hamstrings the Court’s ability to evaluate” First Amendment and RFRA challenges to EO 14043); see
also Toca Producers v. FERC, 411 F.3d 262, 266 (D.C. Cir. 2005) (dispute not ripe where agency had “yet
to pass conclusively upon whether the [applicants] are entitled to the only relief they now seek”). Until
Defendants can reach a decision regarding Air Force Officer’s request, “[n]either the government nor
the court has to accept the [Plaintiffs’] mere say-so” that the request will be denied. United States v.
Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996); see also Fallon v. Mercy Catholic Med. Ctr. of Se. Pa., 877 F.3d
487, 492 (3d Cir. 2017) (questioning religious nature of objection to vaccination); Friedman v. Clarkstown
Cent. Sch. Dist., 75 F. App’x 815, 819 (2d Cir. 2003) (same). At bottom, then, Plaintiffs’ as-applied
RFRA and free exercise claims consist only of “labels and conclusions,” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks omitted), so may also be dismissed for failure to state a claim.
3. Finally, to the extent that Plaintiffs’ Third Cause of Action could be read to claim that the
8
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 21 of 38
APA required Defendants to permit medical exemptions from the civilian vaccination requirement
based on alleged “natural immunity” to COVID-19, see SAC ¶¶ 355, that claim fails. For one thing,
the civilian vaccination requirement has not been applied to any of the Plaintiffs in a manner that
amounts to “final agency action” under the APA. 5 U.S.C. § 704; see also Nat’l Parks Conservation Ass’n
v. Norton, 324 F.3d 1229, 1238 (11th Cir. 2003) (no final agency action where it is clear that “further
administrative action is forthcoming”). But even beyond that threshold problem, 3 Plaintiffs cite no
law requiring exemptions based on acquired immunity. The one military regulation that Plaintiffs cite,
AFI 48-110, does not address COVID-19, see id. ¶ 3-1(a)(3), or exemptions based on prior COVID-
19 infections, nor is it clear how that regulation might apply to Air Force Officer, see id. ¶ 3-3 (applying
only to “[c]ertain civilian employees”). Thus, the Court should find that AFI 48-110 does not render
the civilian vaccination requirement “unlawful” under the APA.
The Court should similarly reject any contention that failing to offer medical exemptions based
on acquired immunity is arbitrary and capricious. See SAC ¶¶ 355–356. A court’s review should be
“extremely deferential” where, as here, the challenged policy “rests on the evaluation of complex
scientific data within [an] agency’s technical expertise.” Defs. of Wildlife v. Bureau of Ocean Mgmt., 684
F.3d 1242, 1250 (11th Cir. 2012) (citation omitted). In determining that federal employees must be
vaccinated against COVID-19, with only legally required exceptions, the President explicitly relied on
the CDC’s determination that vaccination is the best way to slow the spread of COVID -19. See EO
14043 § 1; Task Force FAQs. Moreover, the CDC continues to recommend vaccination “regardless
of a history of symptomatic or asymptomatic SARS-CoV-2 infection.” CDC, Interim Clinical
Considerations for Use of COVID-19 Vaccines (updated April 21, 2022), https://perma.cc/7V3Z-
9UK5. That judgment clearly involves “technical or scientific matters within the agency’s area of
3In the Eleventh Circuit, the APA’s final-agency-action requirement is jurisdictional. See Canal A Media Holding, LLC v.
USCIS, 964 F.3d 1250, 1255 (11th Cir. 2020).
9
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 22 of 38
expertise” that are entitled to “especially strong” judicial deference. Hays Med. Ctr. v. Azar, 956 F.3d
1247, 1264 (10th Cir. 2020) (citation omitted); see also Altschuld v. Raimondo, No. 21-cv-02779, 2021 WL
6113563, at *5 (D.D.C. Nov. 8, 2021) (noting the “federal and scientific consensus . . . that the vaccines
are the ‘best way to slow the spread of COVID-19’”). While Plaintiffs may prefer a different
vaccination policy, that is no basis for invalidating agency action under the APA. See, e.g., Fund for
Animals, Inc. v. Rice, 85 F.3d 535, 541–42 (11th Cir. 1996) (courts should not set aside agency decision
“simply because the court is unhappy with the result reached”).
II. Military Vaccine Claims Are Not Ripe.
As with Plaintiffs’ civilian claims, Plaintiffs’ claims challenging the military vaccination
requirement are also unripe. This motion raises a factual challenge to this Court’s subject-matter
jurisdiction over Plaintiffs’ military claims. See Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th
Cir. 2003). Accordingly, “no presumptive truthfulness attaches to plaintiff’s allegations, and the
existence of disputed material facts will not preclude the trial court from evaluating for itself the merits
of the jurisdictional issue.” Turcios v. Delicias Hispanas Corp., 275 F. App’x 879, 880 (11th Cir. 2008)
(per curiam) (quoting Morrison, 323 F.3d at 925). Further , “[i]n resolving a factual attack, the district
court may consider extrinsic evidence such as testimony and affidavits.” Morrison, 323 F.3d at 924 n.5.
The doctrine of ripeness comes from “both from Article III limitations on judicial power and
from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hosp. Ass’n v. Dep’t of the
Interior, 538 U.S. 803, 808 (2003) (internal citation and quotation omitted). The injury in fact prong of
standing “often converges with ripeness.” Elend v. Basham, 471 F.3d 1199, 1205 (11th Cir. 2006). “If
an action for prospective relief is not ripe because the factual predicate for the injury has not fully
materialized, then it generally will not contain a concrete injury requisite for standing.” Id. As the
Supreme Court succinctly put it, a case is not ripe when the claim is “dependent on
contingent future events that may not occur as anticipated, or indeed may not occur at all.” Trump v.
10
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 23 of 38
New York, 141 S. Ct. 530, 535 (2020) (citation omitted).
The denial of a religious accommodation request—standing alone—does not cause injury and
is not a substantial burden on Plaintiffs’ purported religious beliefs. The consequences that Plaintiffs face
for failing to receive the COVID-19 vaccine after the denial may give rise to a substantial burden, but
those consequences, if any, are far from certain here. See Roberts, 2022 WL 834148, at *3 (holding
service member’s RFRA claims brought by Air National Guardsman whose religious accommodation
request appeal was denied by the Surgeon General were not ripe because pending discharge not final);
cf. Short v. Berger, No. 22-cv-01151, 2022 WL 1051852, at *4 (C.D. Cal. Mar. 3, 2022) (holding that
plaintiff challenging denial of religious accommodation request for COVID-19 vaccine had “not
exhausted administrative remedies” despite receiving a decision on his religious accommodation
request appeal because “he still must undergo separation proceedings before any permanent adverse
consequences are imposed”), appeal filed, No. 22-55339 (9th Cir. Apr. 5, 2022).
The mere existence of Air Force policy that vaccine refusal may result in the initiation of
removal proceedings is insufficient to confer standing. The Supreme Court in Toilet Goods Association
v. Gardner, held a challenged regulation unripe for review because the regulation was permissive rather
than mandatory—i.e., one that did not compel the agency to act but only afforded the agency the
discretion to act. 387 U.S. 158 (1967) (regarding regulation providing that Food and Drug
Administration may suspend certification service to any person who has refused to permit inspection
access). Similarly, here, Air Force guidance instructs that service members who continue to refuse to
obey a lawful order to receive the COVID-19 vaccine after their exemption request has been denied
or their retirement or separation has been rejected “will be subject to initiation of administrative
discharge.” Dec. 7, 2021, Secretary of the Air Force Memo, https://perma.cc/72K5-SN8E (emphasis
added). But the Air Force’s “initiation of separation proceedings is a tentative action not fit for judicial
review; one can only speculate as to the final outcome of any proceedings.” Smith v. Harvey, 541 F.
11
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 24 of 38
Supp. 2d 8, 13 (D.D.C. 2008); see also Schlesinger v. Councilman, 420 U.S. 738, 758 (1975) (explaining that
simply being subject to military process with the prospect of some future punishment is not current
harm and “the federal district courts must refrain from intervention, by way of injunction or otherwise”
(emphasis added)).
Members of the Air Force may respond before the discharge recommendation goes to the
separation authority, and—depending on the type of separation and the service member’s time in
service—the decision may move to a higher level, and the service member may be entitled to a formal
administrative hearing before a decision is made regarding discharge. See infra Part IV.B. Although
Plaintiffs have completed the appeal process for their religious accommodation requests, their claims
are unripe because the Air Force has not yet made a final determination on separation or reassignment.
See Roberts, 2022 WL 834148, at *4.4
III. Plaintiffs Who Chose Retirement Do Not Have Justiciable Claims.
Air Force Officer and Air Force NCO chose to retire from the military and thus do not have
justiciable claims. Ex. 3, Rigsbee Decl. ¶¶ 4, 6. After a member of the military voluntarily chooses to
retire, he does not have standing to challenge that retirement. See Scarseth v. United States, 52 Fed. Cl.
458, 468 (2002).5 “A military resignation is presumed to be voluntary,” id. (citations omitted), and a
4 Defendants acknowledge that this Court preliminarily held that the harm to Air Force Officer was the choice whether
to retire or have the Air Force initiate potential transfer to the Individual Ready Reserve. Air Force Officer, 2022 WL
468799 at *9. Defendants respectfully disagree and reserve their position in this motion that Air Force Officer has not
properly pleaded a ripe claim. Regardless, the purported harm from facing the choice to retire or potential consequences
does not apply to Air Force Special Agent who avers that he is not eligible to retire. SAC ¶ 156.
5 After this Court granted Plaintiff’s motion for a preliminary injunction, Air Force Officer requested to withdraw her
retirement. Ex. 3, Rigsbee Decl. ¶ 6. But standing “must be determined as of the time at which the plaintiff’s complaint
is filed.” Focus on the Fam. v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003) (citing Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)) (collecting cases). That Plaintiffs have since filed a
Second Amended Complaint does not alter the analysis. See Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473 (2007)
(noting “that subject-matter jurisdiction ‘depends on the state of things at the time of the action brought’” (quoting
Mullan v. Torrance, 9 Wheat. 537, 539 (1824))). Even if the Second Amended Complaint did alter the analysis, Plaintiff
cannot argue that her otherwise voluntary retirement was involuntary based on her retroactive retirement-request
withdrawal. See, e.g., Scarseth, 52 Fed. Cl. at 474–75 (2002) (holding that service member’s attempt to withdraw
resignation did not render that resignation involuntary such that the court had jurisdiction); Brown v. United States, 30 Fed.
Cl. 227, 230 (1993), aff’d, 26 F.3d 139 (Fed. Cir. 1994) (same)
12
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 25 of 38
voluntary resignation cannot form the basis of a statutory or constitutional claim, Hargray v. City of
Hallandale, 57 F.3d 1560, 1563 (11th Cir. 1995). In this Circuit, courts consider five factors to decide
whether a resignation was “obtained by coercion or duress”:
(1) whether the employee was given some alternative to resignation; (2) whether
the employee understood the nature of the choice he was given; (3) whether the
employee was given a reasonable time in which to choose; (4) whether the
employee was permitted to select the effective date of the resignation; and (5)
whether the employee had the advice of counsel.”
Id. at 1568.
This standard is a high bar. The Eleventh Circuit has emphasized that “the mere fact that the
choice is between comparably unpleasant alternatives . . . does not of itself establish that a resignation
was induced by duress or coer[c]ion, hence involuntary.” Id. Rather, “plaintiff had a choice” in whether
to “stand pat and fight.” Id. That “the employee may perceive his only option to be resignation . . . is
irrelevant.” Id. Thus, for example, the Eleventh Circuit has held that a plaintiff resigned voluntarily
despite the fact that he was “forced to make the decision to resign while under time pressure,”
threatened with criminal prosecution, and did so “without the advice of counsel.” Id. at 1570. In the
military context, even a choice “between submitting a voluntary resignation and facing trial by court-
martial does not render [a] resignation involuntary.” Scarseth 52 Fed. Cl. at 474.
Here, Air Force Officer and Air Force NCO were presented three alternatives: (1) take any
COVID-19 vaccine authorized by the FDA or the World Health Organization; (2) retire early; or (3)
“face military discipline for disobeying the COVID-19 vaccine mandates.” SAC ¶¶ 117, 138. For Air
Force Officer, the potential discipline was “involuntary reassignment to the IRR.” Id. ¶ 117. Air
Force NCO faced the initiation of discharge proceedings. Before any military discipline could actually
be imposed, Plaintiffs would have had additional opportunities to challenge the basis for any adverse
action. As a matter of law, the availability of additional administrative processes means the resignation
was not involuntary. See Carpenter v. Univ. of Ala. Health Servs. Found. PC, 773 F. App’x 507, 512 (11th
13
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 26 of 38
Cir. 2019) (finding resignation not under duress because “Carpenter could have refused to resign and
challenged his termination at a hearing”); Ross v. City of Perry, 396 F. App’x 668, 670 (11th Cir. 2010)
(“Although Ross might have believed he had no choice but to resign, he did, in fact, have the choice
to refuse to resign and could later have appealed the termination to the city manager.”). Moreover,
the Air Force gave Plaintiffs five days to make a decision, SAC ¶¶ 117, 138—much longer than the
“few minutes” the Eleventh Circuit held was sufficient time in Hargray, 57 F.3d at 1565.
Thus, even accepting the facts alleged in the SAC, Plaintiffs cannot show that their resignation
requests were involuntary. Plaintiffs had time to consider their options and consult counsel, and
ultimately voluntarily decided to retire. SAC ¶¶ 118, 139; see also Christie v. United States, 518 F.2d 584,
587 (Ct. Cl. 1975) (“[P]laintiff chose to resign and accept discontinued service retirement rather than
challenge the validity of her proposed discharge for cause.”).
IV. No Plaintiff Has Exhausted Their Administrative Remedies.
Plaintiffs also do not have justiciable claims against the military vaccine requirements since
they have not exhausted available administrative remedies. As this Court explained, “the Eleventh
Circuit recognized that judicial review of internal military matters should be ‘forestall[ed]’ until the
administrative process is concluded.” Air Force Officer, 2022 WL 468799, at *6 (citation omitted).6 The
importance of administrative exhaustion in the military context is paramount. See Hodges v. Callaway,
499 F.2d 417, 420 (5th Cir. 1974). “Congress has exercised its plenary constitutional authority over
6 The other Mindes factors— (1) The nature and strength of the plaintiff’s claim; (2) The potential injury to the plaintiff if
review is refused; (3) The extent of interference with military functions; and (4) The extent to which military discretion
or expertise is involved—also support a finding of non-justiciability. See Short v. Berger, No. CV-22-00444, 2022 WL
1203876, at *15 (D. Ariz. Apr. 22, 2022); Mark Short, 2022 WL 1051852, at *6 (finding third and fourth factor strongly
support a finding of non-justiciability because “[a]rticulating compelling government interests involves plenty of factual
considerations, as does assessing whether less restrictive means are available” and “[i]f the Court were to say that the
military does not have a compelling interest in preventing the spread of COVID-19, or that there are less restrictive ways
to achieve that goal other than by requiring Plaintiff to get vaccinated, it would necessarily involve itself in ‘complex,
subtle, and professional decisions as to the composition, training, equipping, and control of a military force’” (quoting
Gilligan v. Morgan, 413 U.S. 1, 10 (1973)).
14
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 27 of 38
the military, has enacted statutes regulating military life, and has established a comprehensive internal
system of justice to regulate military life, taking into account the special patterns that define
the military structure.” Chappell v. Wallace, 462 U.S. 296, 302 (1983). The result is “two systems of
justice, to some extent parallel: one for civilians and one for military personnel”—a structure “the
military has required, the Constitution contemplated, Congress has created and [the Supreme] Court
has long recognized.” Id. at 303–04. Thus, strict adherence to the exhaustion requirement in the
special military context (1) avoids separation of powers problems, (2) minimizes the risk of harm to
military readiness resulting from premature or unnecessary judicial intrusion into military matters, (3)
preserves the primary purpose of the comprehensive remedial scheme Congress has provided for
service members, and (4) permits the military to apply its expertise to sensitive military issues in the
first instance. See, e.g., Schlesinger, 420 U.S. at 759–60 (explaining that there is “no injustice in requiring
[a member of the military] to submit to a system established by Congress and carefully designed to
protect not only military interests but his legitimate interests as well”).
Defendants recognize that the Court preliminarily found that Air Force Officer exhausted her
administrative remedies because “she submitted her religious accommodation request” and the Air
Force “ultimately denied her final appeal.” Air Force Officer v. Austin, --- F. Supp. 3d ---, 2022 WL
468799, at *6 (M.D. Ga. Feb 15, 2022). However, no party “briefed or raised” the issue of exhaustion
in the briefing for Air Force Officer’s motion for preliminary injunction. Id. Defendants respectfully
submit that with the benefit of briefing, the Court should conclude that Plaintiffs have failed to
exhaust available administrative remedies. Indeed, several courts have denied relief to service-member
plaintiffs who had received a final decision on a religious accommodation request and pursued RFRA
and First Amendment claims before exhausting their discipline or separation remedies. See Church,
2021 WL 5179215, at *10–11; Mark Short, 2022 WL 1051852, at *4 (“Plaintiff has not exhausted
administrative remedies, however. Although he has received a decision on his appeal, he still must
15
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 28 of 38
undergo separation proceedings before any permanent adverse consequences are imposed.”); cf.
Roberts, 2022 WL 834148, at *4. Here, no Plaintiff has been even subject to final discipline, much less
exhausted available administrative remedies with the Air Force Board for Correction of Military
Records (Air Force “BMCR”).
A. No Plaintiff Has Been Subject to Final Discipline.
No Plaintiff has received a final decision on any discipline for failure to receive the COVID-
19 vaccine. Two Plaintiffs—Air Force Officer and Air Force NCO—have chosen not to pursue
administrative relief and instead have opted to retire. As explained above, they have no standing to
challenge their retirements. Moreover, since neither “challenge[s] the validity of [their] proposed
discharge,” Christie, 518 F.2d at 587, they have not exhausted their administrative remedies. As
discussed below, the other two Plaintiffs—Air Force Engineer and Special Agent—have also not
exhausted available administrative remedies.
Air Force Engineer is an “officer” and has served in the Air Force for “more than 10 years.”
SAC ¶¶ 84–85. Commissioned officers facing discharge proceedings who have completed six or more
years of active commissioned service are generally entitled to a Board of Inquiry. See AFI 36-3206,
Administrative Discharge Proceedings for Commissioned Officers, Chapter 7,
https://perma.cc/75UU-DDE5; see also AFI 36-3207, Separating Commissioned Officers, ¶ 3.16.1.1
(providing that officers may be dismissed for cause for “failing to meet the prescribed standards of
performance and conduct”), https://perma.cc/VDJ4-R8FM.7 A Board of Inquiry, made up of
Department of the Air Force Officers, may recommend removal or discharge, among other things.
AFI 36-3206 ¶¶ 7.31.1–7.31.4. If the Board of Inquiry recommends retaining the officer, the member
is notified and the action is ended. See id. ¶¶ 4.1 – 4.1.1. (“When a . . . board of officers . . . retains an
7Commissioned officers with less than six years of active commissioned service who are facing discharge are entitled to
present evidence to the appropriate show-cause authority. AFI 36-3206, Ch. 4; id. ¶ 1.1.
16
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 29 of 38
officer on active duty, the [show cause authority] may [r]einitiate discharge action only on the basis of
new information that again shows the officer may be subject to administrative discharge.”); see also id.
¶ 4.2. Any discharge recommendations from a Board of Inquiry (or the appropriate show-cause
authority) are reviewed by the Air Force Personnel Board (“AFPB”). See id., Ch. 6. The AFPB may
decide to retain the officer on its own initiative. See id. ¶¶ 6.5.1; 6.6.1; 6.9.1. But if the AFPB
recommends removal or other adverse action, it makes a recommendation for a final decision by the
Secretary of the Air Force. See id. ¶ 6.10. An officer is only removed after a decision by the Secretary
(or his designee). See id. ¶ 6.11. Since this process has not even begun for Air Force Engineer, he has
not exhausted his administrative remedies. Ex. 1, Holmes Decl. ¶ 4 (“Administrative discharge
proceedings have not been initiated against [Air Force Engineer],” nor has the process “completed.”).
Air Force Special Agent has similarly failed to exhaust his administrative remedies. He “was
issued a Letter of Reprimand for failure to timely comply with the order to obtain the vaccine” on
March 18, 2022. SAC ¶ 161. He has 45 days “to submit comments or documents for consideration”
in response to that Letter. Id. Once the Air Force receives his response, it has 45 days to reply to Air
Force Special Agent’s submission. AFI 36-2907, ¶ 4.5.1.6. As Plaintiffs admit, it is not clear at this
point in the process what, if any, “specific punishment” Air Force Special Agent will receive for failure
to comply with the vaccination order. SAC ¶ 161. Any punishment would involve additional
administrative processes and opportunities for appeal. For example, because Air Force Engineer is
an “officer” who has served in the Air Force for “more than 10 years,” SAC ¶¶ 84–85, he will also be
entitled to a Board of Inquiry should he ultimately face discharge proceedings, see AFI 36-3206, Ch.
7; AFI 36-3207, ¶ 3.16.1.1. However, since no such process has begun, Air Force Special Agent has
not exhausted his administrative remedies. Ex. 2, Bullard Decl. ¶ 5 (“[A]dminsitrative discharge
proceedings have not been initiated against Air Force Special Agent, nor have actions been initiated
to transfer the member to the Individual Ready Reserve (IRR).”).
17
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 30 of 38
B. Exhaustion Includes Pursuing Relief through the Air Force Board for Correction
of Military Records.
Even if Plaintiffs had been ultimately disciplined or discharged, the Air Force provides
additional avenues for administrative review, including the Air Force BMCR. Congress established a
BCMR in each military department, including the Air Force, and the Secretary of Air Force, acting
through the appropriate BCMR, possesses plenary authority to afford relief to service members injured
by adverse personnel actions, including but not limited to reversing involuntary separations, removing
adverse information from personnel files, and awarding back pay and allowances. See 10 U.S.C. §
1552(a)(1) (Board of Correction of Military Records are empowered to “to correct an error or remove
an injustice”); AFI 36-2603, Air Force Board for Correction of Military Records,
https://perma.cc/6HJ5-JUPP. No Plaintiff has exhausted these intraservice administrative remedies.
See Ex. 1, Holmes Decl. ¶ 4; Ex. 2, Bullard Decl. ¶ 5; Ex. 3, Rigsbee Decl. ¶¶ 5–6.
In this Circuit, a service-member plaintiff is required to exhaust “all available military
remedies.” Winck v. England, 327 F.3d 1296, 1303 n.4 (11th Cir. 2003), abrogated on other grounds by
Santiago-Lugo v. Warden, 785 F.3d 467 (11th Cir. 2015) (emphasis added). Exhausting all military
remedies involves everything up to and including “petitioning to the [BCMR] [to] request[] the relief
sought in th[e] action” and subsequently “receiving [the] adverse determination.” Rucker v. Sec’y of the
Army, 702 F.2d 966, 970 (11th Cir. 1983); see also, e.g., Von Hoffburg v. Alexander, 615 F.2d 633, 638 (5th
Cir. 1980)8 (requiring exhaustion through the BCMR); Hodges, 499 F.2d at 420 (describing the “two
types of administrative bodies [that] provide review of discharge decisions” that must be exhausted);
Mindes, 453 F.2d at 198 (plaintiff had “travers[ed] all available intraservice procedural reviews—ending
with a denial of relief by the civilian [BCMR] [before he] filed a complaint” in civilian federal district
court); Layman v. Harvey, No. 8:05-cv-2208, 2007 WL 430678, at *6-10 (M.D. Fla. 2007) (dismissing
8Fifth Circuit cases decided prior to October 1, 1981 are binding precedent in this circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981).
18
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 31 of 38
claim against military for failing to exhaust “remedies to the ABCMR”).
Courts in other circuits have also considered intraservice remedies to be exhausted only after
seeking relief from the applicable BCMR. “[T]he salutary rule [is] that an aggrieved military officer
must first exhaust his administrative remedies with his particular service’s [BCMR] prior to litigating
his claims in a federal court.” Bois v. Marsh, 801 F.2d 462, 468 (D.C. Cir. 1986) (citation omitted)
(court requiring prudential exhaustion even for constitutional claims).9
Thus, Plaintiffs can petition the Air Force BCMR for review, even after retirement, discharge,
or involuntary transfer. But no Plaintiff here has even begun that process—much less exhausted.
Their challenge to the military’s COVID-19 vaccination requirement should be dismissed without
prejudice to allow Plaintiffs to pursue those administrative remedies.
V. The Court Lacks Jurisdiction Over Count Three (APA), and Plaintiffs Otherwise Fail
to State a Claim.
At the very least, Plaintiffs’ Third Cause of Action should be dismissed, either for lack of
jurisdiction or for failure to state a claim. Count Three alleges a violation of the Administrative
Procedure Act (“APA”) because “Defendants wrongfully denied Plaintiffs . . . the opportunity to seek,
under AFI 48-110, a medical exemption based on their natural immunity.” SAC ¶ 355.
As an initial matter, Count Three is not ripe because no Plaintiff has sought a medical
exemption from the military vaccination requirement based on prior infection. See generally SAC. And
9 See e.g., Chatman v. Hernandez, 805 F.2d 453, 456 (1st Cir. 1986) (plaintiff has an “other adequate remedy” by petitioning
BCMR); Guitard v. U.S. Sec’y of Navy, 967 F.2d 737, 741 (2d Cir. 1992) (plaintiff could obtain “complete relief” from
BCMR because constitutional claims “are within its purview”); Jorden v. Nat'l Guard Bureau, 799 F.2d 99, 102 (3d Cir.
1986) (generally requiring exhaustion to BCMR, but not when federal Board could not reinstate plaintiff into state-
commissioned Guard position); Sanders v. McCrady, 537 F.2d 1199, 1201 (4th Cir. 1976) (plaintiff asserting constitutional
and statutory claims required to exhaust to the BCMR); Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1036 (5th Cir.
1986) (holding claim premature for “fail[ing] to exhaust available service-connected remedies by appealing to the
[BCMR].”); Davis v. United States, 589 F.3d 861, 865 (6th Cir. 2009) (“A claim will be considered exhausted either after
the [BCMR]’s original decision, if there is no request for reconsideration, or after a denial of a timely request for
reconsideration.”); Champagne v. Schlesinger, 506 F.2d 979, 984 (7th Cir. 1974) (plaintiffs required to first appeal discharge
to the Board for Correction of Naval Records); Horn v. Schlesinger, 514 F.2d 549, 553 (8th Cir. 1975) (plaintiff failed to
exhaust by not pursuing remedies at BCMR); Kennedy v. Sec’y of Army, 191 F.3d 460 (9th Cir. 1999) (required to exhaust
appeals to BCMR before challenging dismissal in court); Gorsline v. U.S. Army Rsrv., 13 F.3d 405 (10th Cir. 1993) (same).
19
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 32 of 38
no Plaintiff alleges that the Air Force has imposed final discipline for failure to receive the COVID-
19 vaccine after being denied a medical exemption. Id.
Count Three is also non-justiciable because no Plaintiff exhausted available administrative
remedies as to this particular claim. See supra Part IV. None alleges to have even sought, much less
been denied, a medical exemption based on prior infection. And Plaintiffs’ claim is also non-justiciable
for the same reasons as Plaintiffs’ religious-based claims: no Plaintiff has been subject to any final
discipline for failure to take the COVID-19 vaccine, and no Plaintiff has exhausted available intra-
service remedies challenging any final discipline for failure to take the COVID-19 vaccine.
Count Three should otherwise be dismissed for failure to state a claim. Fed. R. Civ. P. 12(b)(6).
Plaintiffs cannot show that Air Force’s policy that “Individuals with previous COVID-19 infection or
positive serology are not considered vaccinated and are not exempt,” SAC ¶ 29, is “‘not in accordance
with law,’” id. ¶ 351. The only “law” cited in the complaint that is supposedly in conflict with the Air
Force’s policy is AFI 48-110. SAC ¶ 355. But that regulation does not require the Air Force to provide
a prior infection exception for every disease. AFI 48-110 makes this clear: “For some vaccine-
preventable diseases, serologic or other tests can be used to identify pre-existing immunity from prior
infections or immunizations that may eliminate unnecessary immunizations.” AFI 48-110, ¶ 2-1(g),
https://perma.cc/L32S-7SCN. The regulation goes on to explain those specific diseases include
“measles, rubella, hepatitis A, hepatitis B, and varicella.” Id. ¶ 3-1(a)(3). COVID-19 is not on the list.
Nor is the Air Force’s policy concerning pre-existing immunity arbitrary or capricious. See 5
U.S.C. § 706(2)(A). The Court’s review of any agency action under 5 U.S.C. § 706(2)(A) must typically
be “deferential” and “narrow.” Dep’t of Comm. v. New York, 139 S. Ct. 2551, 2569 (2019). And even
more deference is owed to military decisions given the “complex, subtle, and professional decisions
as to the composition, training, equipping, and control of a military force.” Gilligan, 413 U.S. at 10; ,
413 U.S. at 10; Rostker v. Goldberg, 453 U.S. 57, 66 (1981); Aktepe v. United States, 105 F.3d 1400, 1403
20
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 33 of 38
(11th Cir. 1997); Winck, 327 F.3d at 1302–04; see also Doe #1 – #14 v. Austin, --- F. Supp. 3d ----, 2021
WL 5816632, *4 (N.D. Fla. Nov. 12, 2021) (finding plaintiffs had not shown a likelihood of success
on the merits of their APA claim challenging the military vaccination mandate).
When it comes to the military vaccination requirement, the deference owed to military
decisionmaking “is layered on top of the deference that courts must give to expert policymakers on
matters involving complex medical or scientific uncertainties.” Mark Short, 2022 WL 1051852, at *7.
“Our Constitution principally entrusts the safety and the health of the people to the politically
accountable officials” and when “those officials undertake to act in areas fraught with medical and
scientific uncertainties, their latitude must be especially broad.” S. Bay United Pentecostal Church v.
Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring) (cleaned up) “Where those broad limits are
not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which
lacks the background, competence, and expertise to assess public health and is not accountable to the
people.” Id. at 1613-14 (quoting Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 545 (1985)).
Under these standards, Plaintiffs’ challenge to the military policy as “arbitrary or capricious”
fails because the military clearly has a rational basis for its policy. See Pike v. Johnson, 103 F. Supp. 3d
1362, 1368 (N.D. Ga. 2015) (dismissing claims when agency “came to a rational conclusion”). The
CDC’s guidance is dispositive in this case, and the CDC recommends all persons ages 5 and over
receive the COVID-19 vaccine “regardless of a history of symptomatic or asymptomatic SARS-CoV-
2 infection.” CDC, Interim Clinical Considerations for Use of COVID-19 Vaccines (updated April
21, 2022), https://perma.cc/7V3Z-9UK5.10 Nothing alleged in Plaintiffs’ complaint can overcome
the high hurdle required to show the military was not acting rationally in following CDC guidance.
10Publicly available guidance from the CDC is the type of information subject to judicial notice. “[C]ourts must consider
the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take
judicial notice.” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).
21
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 34 of 38
See Lloyd v. Sch. Bd. of Palm Beach Cnty., ---F. Supp. 3d---, 2021 WL 5353879, at *13 (S.D. Fla. Oct. 29,
2021) (dismissing for failure to state a claim in part because “the Court cannot find that Defendants
are irrational for following the recommendations of the CDC”); Denis v. Ige, 538 F. Supp. 3d 1063,
1078 (D. Haw. 2021) (dismissing for failure to state a claim because “it is clearly reasonable for state
and local officials to follow the CDC’s guidance”).
VI. Air Force Special Agent and Air Force Engineer Have No Connection To This Forum
and Should be Severed and Dismissed.
Two Plaintiffs have no connection to this forum and, as explained further below, should be
severed and dismissed without prejudice. Air Force Special Agent currently works and lives in
California. SAC, ¶ 80. Air Force Engineer “currently lives in Virginia.” Id. ¶ 88. They both live
outside of Georgia, they work outside of Georgia, and their claims are based on events that occurred
outside of Georgia. These Plaintiffs should be dismissed from the case pursuant to Rule 12(b)(2),
12(b)(3), or severed pursuant to Rule 21. See Story v. Heartland Payment Sys., LLC, 461 F. Supp. 3d 1216,
1230 (M.D. Fla. 2020) (dismissing claims from non-resident Plaintiffs and collecting cases).
Plaintiffs allege that venue is proper pursuant to 28 U.S.C. § 1391(e). SAC ¶ 21. That statute
allows a civil action against an officer of the United States to be filed in a district where “(A) a
defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff
resides if no real property is involved in the action.” 28 U.S.C. § 1391(e). No Defendant resides in
this district, and Plaintiffs do not assert otherwise, so (A) does not apply. Non-resident Plaintiffs—
Air Force Special Agent and Air Force Engineer—do not live or work in this district, so neither (B)
nor (C) apply. Venue can thus only be proper for the non-resident Plaintiffs if they “may be joined
as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such
other venue requirements as would be applicable if the United States or one of its officers, employees,
or agencies were not a party.” Id. The venue question under § 1391 for non-resident Plaintiffs
22
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 35 of 38
collapses into the question of whether these Plaintiffs can properly be joined under Rule 20 or should
be severed pursuant to Rule 21. As described below, all Plaintiffs are misjoined, and their claims
should be severed—particularly the claims of the non-residents, which should be dismissed without
prejudice to refiling in a proper venue.
VII. All Plaintiffs Are Misjoined.
Plaintiffs’ claims are misjoined and should be severed because their claims do not arise out of
the same transaction or occurrence and do not present common questions of law or fact. Under Rule
20, plaintiffs may join in one action only if “they assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of transactions
or occurrences” or if there are “any question of law or fact common to all plaintiffs.” Fed. R. Civ. P.
20(a)(1). None of these requirements are met here. Plaintiffs bring individual claims based on RFRA,
the First Amendment, and the APA. SAC ¶¶ 210–357. None of those claims assert a right to relief
“jointly, severally, or in the alternative.” Fed. R. Civ. P. 20(a)(1)(A). And “[w]hile Plaintiffs’ claims
may raise similar legal issues, they are not logically related because they do not arise from common
operative facts.” Barber v. Am.’s Wholesale Lender, 289 F.R.D. 364, 367 (M.D. Fla. 2013); Golden Scorpio
Corp. v. Steel Horse Bar & Grill, 596 F. Supp. 2d 1282, 1285 (D. Ariz. 2009) (“A finding of a common
question of law or fact does not necessarily mean that the claims against the various defendants arise
from a common transaction or occurrence[.]”); see also Wigand v. W. City Partners, Inc., No. 07-61492,
2008 WL 384394, at *1 (S.D. Fla. Feb. 11, 2008) (finding severance was warranted even when 43
plaintiffs all alleged that the form contract they all signed “fail[ed] to comply with the Federal Interstate
Land Sales Full Disclosure Act” because the contracts were for “different units, on different dates,
and for different prices”); Walter v. BMW of N. Am., No. 8:18-cv-02875, 2019 WL 6251366, at *2
(M.D. Fla. Nov. 22, 2019) (finding severance was warranted due to “substantial factual differences
among the Plaintiffs’ claims”).
23
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 36 of 38
For RFRA and First Amendment claims, each Plaintiff must demonstrate that the challenged
policy burdens his or her “exercise of religion” and that the challenged decision substantially burdens
religious exercise. Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1290 (11th Cir. 2012).
For each Plaintiff who makes these showings, under RFRA, the burden shifts to the Government to
“demonstrate[] that application of the burden to the person—(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling governmental
interest.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 682 (2014) (quoting 42 U.S.C. § 2000bb-
1(b)) (emphasis added); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006).
Each of these issues must be separately analyzed with respect to each Plaintiff.
Because each Plaintiff performs a different function in the military, the military considers their
particular circumstances in determining whether the government’s compelling interest requires that
each Plaintiff be vaccinated against COVID-19, and it conducts an individualized assessment
regarding whether vaccination is the least restrictive means to accomplishing its mission. The Court
would therefore review that individualized assessment for each Plaintiff’s RFRA claim based on the
record compiled by the Air Force at the time of its decision for each applicant. Accordingly, because
each religious exemption request is considered on an individualized basis, any final denials are separate
“transactions or occurrences” under Rule 20 such that joinder of Plaintiffs’ claims is improper. See
Barber, 289 F.R.D. at 367 (noting that because “Plaintiffs’ claims involve conduct by different
Defendants, different loan documents, different dates, and different operative factual scenarios,” the
“individualized nature of Plaintiffs’ claims” rendered joinder improper).
Severance is also appropriate because “different witnesses and documentary proof are required
for separate claims.” Parchman v. SLM Corp., 896 F.3d 728, 733 (6th Cir. 2018). Adjudicating these
claims together in one case would require judicial review of separate administrative records for each
finally denied religious accommodation request, in addition to the administrative record for the
24
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 37 of 38
challenged DoD directive itself. Severance also would support case management, minimize prejudice
to parties, and promote fundamental fairness. “[A]llowing this case to proceed as filed would violate
the principles of judicial resource allocation embodied in the separate docketing and random
assignment protocols which are employed by federal courts to ensure equitable distribution of judicial
workloads and efficient, timely, and impartial resolution of cases.” Ahmed v. Miller, 452 F. Supp. 3d
721, 727 (E.D. Mich. 2020). “Even if joinder was technically appropriate under Rule 20(a),
considerations of judicial economy, case management, prejudice to parties, and fundamental fairness
dictate that Plaintiffs’ claims be severed under Rule 21.” Barber, 289 F.R.D. at 368 (citing Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000); In re Amergi ex rel. Amergi v. Palestinian Auth., 611
F.3d 1350, 1367 (11th Cir. 2010); Anderson v. Moorer, 372 F.2d 747, 750 n.4 (5th Cir. 1967); Acevedo v.
Allsup’s Convenience Stores, Inc., 600 F.3d 516, 521–22 (5th Cir. 2010)); Torres v. Bank of Am., N.A., No.
8:17-cv-1534, 2017 WL 10398671, at *1–2 (M.D. Fla. Oct. 6, 2017). As described above, “[t]he fact-
specific nature of the claims and defenses that have been, or will be, raised by the parties, precludes
any conclusion that judicial economy would be served by joinder.” Barber, 289 F.R.D. at 368–69.
At the very least, the out-of-district plaintiffs should be severed from this case in the interests
of judicial efficiency and dismissed without prejudice to refiling in a proper venue. There is no
efficiency in litigating non-residents’ claims in Georgia. Indeed, a court in the Middle District of
Florida recently severed non-resident plaintiffs in similar circumstances. Feb. 22, 2022 Order, Crosby
v. Austin, 8:21-cv-2730-TPB-CPT, ECF No. 44. Nor would keeping individuals with no relation to
the forum as parties to this case promote judicial economy. There are over 670 district court judges
throughout the country who are fully capable of adjudicating the individual RFRA claims that arise
within their districts. See Introduction to the Federal Court System, https://perma.cc/DKK9-4BX5.
CONCLUSION
For the foregoing reasons, the Court should grant Defendants’ motion to dismiss.
25
Case 5:22-cv-00009-TES Document 92 Filed 05/11/22 Page 38 of 38
Dated: May 11, 2022 Respectfully submitted,
PETER D. LEARY BRIAN M. BOYNTON
United States Attorney Principal Deputy Assistant
Middle District of Georgia Attorney General
/s/ Lance Simon ALEXANDER K. HAAS
LANCE SIMON Director, Federal Programs Branch
Assistant United States Attorney
Georgia Bar No. 447643 ANTHONY J. COPPOLINO
ROGER C. GRANTHAM, JR. Deputy Director
Assistant United States Attorney
Georgia Bar No. 860338 /s/ Cassandra Snyder
United States Attorney’s Office ANDREW E. CARMICHAEL
300 Mulberry St., Suite 400 Senior Trial Counsel
P.O. Box 1702 ZACHARY A. AVALLONE
Macon, GA 31202 CODY T. KNAPP
Tel: (478) 621-2663 CASSANDRA M. SNYDER
Email: lance.simon@usdoj.gov Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 451-7729
Email: cassandra.m.snyder@usdoj.gov
Counsel for Defendants
26
File and source
- File
- gov.uscourts.gamd.123364.92.0.pdf
- Size
- 1,027,547 bytes
- SHA-256
- 244096dc8496b43f6b1ee60a1507e3ff2e44b2b6d49e6f7d0f7453ceddbd1603
- Original
- archive.org