Plaintiffs' Response to Defendants' Notice of Additional Authority — Air Force Officer v. Austin

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Plaintiffs' response to Defendants' notice of additional authority in Air Force Officer, et al., v. Lloyd J. Austin, III, et al., Case No. 5:22-cv-00009-TES, in the United States District Court for the Middle District of Georgia, Macon Division, Document 111, filed June 21, 2022. It states that Defendants filed a notice of another court's order, Knick v. Austin, No. 1:22-cv-01267, denying a service member's motion for preliminary injunction, and that Defendants argue it supports their Motion to Dismiss. Plaintiffs argue that Knick was wrongly decided, is distinguishable, and is inconsistent with this Court's February 15, 2022 preliminary injunction order (Doc. 51). The signature block shows /s/ Adam S. Hochschild.

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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, on behalf of
)
themselves and all others similarly situated,
)

)
Case No. 5:22-cv-00009-TES

Plaintiffs,
)
v.

)

)
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.

)

PLAINTIFFS’ RESPONSE TO
DEFENDANTS’ NOTICE OF ADDITIONAL AUTHORITY

Defendants filed a notice of another court’s order, Knick v. Austin, No. 1:22-cv-01267, WL
2157066 (D.D.C. June 15, 2022), following precedent from the same district, denying a service
member’s motion for preliminary injunction. [Doc. 110 & 110-1].1 They argue that it supports their
Motion to Dismiss and opposition to the Motions for Class-Wide Relief here. [Doc. 110]. Knick, like
Church before it, was wrongly decided and is distinguishable besides. It is fundamentally inconsistent
with this Court’s February 15, 2022 preliminary injunction order [Doc. 51], which Defendants

1 See id. at 4 (citing Church v. Biden, No. 21-cv-2815, 2021 WL 5179215 (D.D.C. Nov. 8, 2021)
(Kollar-Kotelly, J.) and two subsequent rulings by the same judge, observing that the plaintiff in
Knick raised “virtually identical arguments” as were raised in those three prior cases, and therefore
adopting the reasoning of those three cases). Accordingly, Knick is simply a regurgitation of Church v.
Biden which the parties have already addressed [see Doc. 101 at 18]; it adds nothing new here.
Case 5:22-cv-00009-TES   Document 111   Filed 06/21/22   Page 1 of 4

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continue to steadfastly ignore. The Knick court also misapprehended facts and law related to, for
example, the blanket clinical-trial-participant exemption and natural immunity.
This Court’s preliminary injunction order. Tellingly, the Knick order, like most of
Defendants’ briefing,2 makes no mention of the February 15 preliminary injunction order entered in
this case [Doc. 51]3 and is inconsistent with it in numerous respects, including in the two courts’
respective analyses of religious vs. secular exemptions and of irreparable harm. Contrary to this
Court’s findings, the Knick court failed, for example, to recognize the “illusory and insincere”
religious accommodation process and the irreparable harm that service members face under the
“monumental pressure” of being forced to choose between their sincerely held religious beliefs and
their livelihoods.
Blanket clinical-trial-participant exemption. The Knick court wrongly relied on
Defendants’ speculative and inaccurate statements regarding the blanket clinical-trial-participant
exemption. For example, citing a portion of Defendants’ May 27 brief in that case, the Knick order
states: “Any given clinical trial participant… may in fact be vaccinated and this argument is
potentially a red herring anyway as there may be no such participants in the Air Force at all.” [Doc. 110-1
at 7-8 (emphasis added)]. These possibilities are speculative and thus cannot survive strict scrutiny.

2 In fact, the Knick court took plaintiff to task for doing just what Defendants have done here: “not
engag[ing] with the reasoning in the Prior Opinion[] nor offer[ing] a compelling reason to rule
differently.” [Doc. 110-1 at 5].
3 The Knick court noted that Captain Knick did not address other supposedly related cases denying
other service member’s requests for injunctions [Doc. 110-1 at 5 n.5], and yet the Knick court itself
did not mention the February 15 preliminary injunction order entered in this case (the first-in-the-
nation Air Force COVID-19 vaccine injunction), or any of the several other orders granting or
upholding COVID-19 vaccine injunctions against the Air Force or other branches of the military,
e.g., Navy Seal 1 v. Austin, No. 8:21-CV-2429-SDM-TGW, 2022 WL 534459 (M.D. Fla. Feb. 18,
2022); Navy Seal 1 v. Austin, Doc. 173 (M.D. Fla. Apr. 21, 2022); Doster v. Kendall, No. 1:22-cv-00084-
MWM, 2022 WL 982299 (S.D. Ohio Mar. 31, 2022); Poffenbarger v. Kendall, No. 3:21-cv-1, 2022 WL
594810 (S.D. Ohio Feb. 28, 2022); U.S. Navy SEALs 1-26 v. Biden, No. 4:21-CV-01236-O, 2022 WL
34443 (N.D. Tex. Jan. 3, 2022); U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336 (5th Cir. 2022); U.S. Navy
SEALs 1-26 v. Austin, 2022 WL 1025144 (N.D. Tex. Mar. 28, 2022).
Case 5:22-cv-00009-TES   Document 111   Filed 06/21/22   Page 2 of 4

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[See Doc. 104 at 14].4 The statement that there “may be no such participants” is also false; in this
case, Defendants expressly admitted on May 24 that “[s]ome administrative exemptions are…
granted to service members who are actively participating in COVID-19 vaccine clinical trials.”
[Doc. 98 at 12 n.6 (emphasis added)]. [See Doc. 104 at 6; Doc. 88-1 at 15].
Natural immunity. Unlike the four named Plaintiffs in this case, Captain Knick does not
have proof of his own natural immunity [Doc. 110-1 at 8-9]. Natural immunity is relevant to all of
Plaintiffs’ claims here.5 The Knick court also accepted Defendants’ claim that the extent of natural-
immunity protection is not “clear” [Doc. 110-1 at 9-11] while ignoring Defendants’ failure to show
that the extent of vaccine protection is clear, let alone clear relative to natural-immunity protection.
[See 101 at 21-22].6

4 As these statements imply and as shown by the opinion throughout, Knick also improperly placed
the burden on plaintiff to disprove—rather than on defendants to prove—that the government
asserts a compelling interest and that the vaccine mandate is the least restrictive means of furthering
it. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006).
5 To be clear, class membership is not limited to those with natural immunity; the class consists of all
victims of the same illusory and insincere process by which Defendants systemically fail to provide
the requisite “to the person” assessment. [See Doc. 88-1 at 9-10; Doc. 104 at 8].
6 Nor did the Knick court discuss the existence or absence of vaccine-safety risks (e.g., myocarditis,
blood clotting, miscarriage, infertility, etc.). [See Doc. 104 at 18 n.7].
Case 5:22-cv-00009-TES   Document 111   Filed 06/21/22   Page 3 of 4

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Dated: June 21, 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 63114
(402)501-8586
mmchale@thomasmoresociety.org

Paul M. Jonna, pro hac vice
LiMandri & Jonna LLP
THOMAS MORE SOCIETY – Special Counsel
P.O. Box 9120
Rancho Santa Fe, CA 92067
(858)759-994
pjonna@limandri.com

Counsel for Plaintiffs

Case 5:22-cv-00009-TES   Document 111   Filed 06/21/22   Page 4 of 4

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