In their Second Amended Complaint, Plaintiffs explained that they “believe that

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Defendants' Notice of Supplemental Factual Developments, filed July 22, 2022 as Document 117 in Air Force Officer v. Lloyd Austin, et al., Case No. 5:22-cv-00009-TES, U.S. District Court for the Middle District of Georgia, Macon Division. Defendants tell the court that the FDA granted emergency use authorization to the Novavax COVID-19 vaccine and that the CDC endorsed it on July 19, 2022. They argue that Novavax, which the filing says is not made with fetal-derived cell lines or mRNA technology, adds another vaccine plaintiffs could take without burdening their religious beliefs, so no preliminary injunction should issue and plaintiffs cannot represent a class. In a footnote they ask that the class certification motion, ECF No. 88, be put in abeyance pending the class in Doster v. Kendall, No. 22-cv-00084 (S.D. Ohio).

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

AIR FORCE OFFICER,

Plaintiff,

v.

No. 5:22-cv-00009-TES

LLOYD AUSTIN, in his official capacity
as Secretary of Defense, et al.

Defendants.

NOTICE OF SUPPLEMENTAL FACTUAL DEVELOPMENTS
Defendants respectfully notify the Court of significant new factual developments.
The FDA granted emergency use authorization to the Novavax vaccine, and on July 19,
2022, the CDC endorsed its use.  FDA, Coronavirus (COVID-19) Update: FDA Authorizes
Emergency
Use
of
Novavax
COVID-19
Vaccine,
Adjuvanted
(July
13,
2022),
https://perma.cc/CJ3N-8SAE; CDC, CDC Recommends Novavax’s COVID-19 Vaccine for
Adults (July 19, 2022), https://perma.cc/8E93-TG2T.
In their Second Amended Complaint, Plaintiffs explained that they “believe that
receiving a vaccine that was derived from or tested on aborted fetal tissue in its
development would violate their conscience and is contrary to their faith.”  Second Am.
Compl., ¶ 93, ECF No. 84.  They alleged that “[a]ll of the COVID-19 vaccines currently
available were derived from or tested on (as part of their development) aborted fetal
Case 5:22-cv-00009-TES   Document 117   Filed 07/22/22   Page 1 of 4

2
tissue” and “[f]or this reason, they are unwilling to receive one of the COVID-19 vaccines
currently available.”  Id., ¶¶ 93–95.
Approval of Novavax adds yet another accessible COVID-19 vaccine to those that
Plaintiffs may choose to receive to comply with the Air Force’s immunization program
requirements.  It has been reported that “[n]o human fetal-derived cell lines or tissue,
including HEK293 cells, are used in the development, manufacture or production of the
Novavax COVID-19 vaccine candidate.”  J. Jenkins, “New Novavax Shot Could Appeal
to Pro-Life Christian Skeptics,” Christianity Today (Feb. 18, 2022) https://perma.cc/275N-
YH8U.  Novavax was “produced from baculovirus infected Sf9 (fall armyworm) insect
cells and MatrixMTM adjuvant containing saponins derived from the soapbark tree.”
Fact Sheet for Recipients and Caregivers, https://perma.cc/NJ6U-T99Q at 2.   Novavax
also does not use mRNA technology. HHS Press Release (July 11, 2022),
https://perma.cc/E7U8-LZEG.
In light of this, the Court should find that Plaintiffs in this case can meet the
COVID-19 vaccine requirement without substantially burdening their religious beliefs,
and therefore should not issue any preliminary injunctive relief for these individuals.  In
addition, because they cannot show that their religious beliefs are burdened, Plaintiffs
cannot serve as representatives of any class.1

1 At the very least, Plaintiffs’ motion for class certification and a class-wide injunction, ECF No. 88, should
be held in abeyance pending resolution of the substantially similar class that has already been certified in

Case 5:22-cv-00009-TES   Document 117   Filed 07/22/22   Page 2 of 4

3
Dated:  July 22, 2022

PETER D. LEARY
United States Attorney
Middle District of Georgia

Lance Simon
Assistant United States Attorney
Georgia Bar NO. 44764
300 Mulberry St., Suite 400
P.O. Box 1702
Macon, GA 31202
Tel: (478) 621-2663
Email: lance.simon@usdoj.gov

Respectfully submitted,

BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General

ALEXANDER K. HAAS
Director, Federal Programs Branch

ANTHONY J. COPPOLINO
Deputy Director

/s/ Zachary A. Avallone
ANDREW E. CARMICHAEL
Senior Trial Counsel
ZACHARY A. AVALLONE
CASSANDRA M. SNYDER
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 514-2705
Email: zachary.a.avallone@usdoj.gov
Counsel for Defendants

Doster v. Kendall, 22-cv-00084 (S.D. Ohio), and pending request for class-wide preliminary relief in that
case.
Case 5:22-cv-00009-TES   Document 117   Filed 07/22/22   Page 3 of 4

CERTIFICATE OF SERVICE

I hereby certify that on July 22, 2022, I electronically filed the foregoing document
with the Clerk of the Court using CM/ECF, and that that document is now available for
viewing and downloading from the CM/ECF system.  I further certify that the foregoing
document is being served this day on all counsel of record, via Notices of Electronic Filing
generated by CM/ECF.

/s/ Zachary A. Avallone
Trial Attorney

Case 5:22-cv-00009-TES   Document 117   Filed 07/22/22   Page 4 of 4

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