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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
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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
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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