Sixth Circuit keeps Air Force vaccine mandate on hold

CINCINNATI (CN) — A class action against the U.S. Air Force over what several service members call a "sham exemption process" for the military's Covid-19 vaccine mandate will proceed after a Sixth Circuit panel upheld a federal judge's injunction.

Eighteen active and reservist members sued Secretary of the Air Force Frank Kendall after they were denied religious exemptions to the vaccine mandate, seeking relief for violations of the First Amendment and the Religious Freedom Restoration Act, or RFRA.

A federal judge granted the plaintiffs' motion for a preliminary injunction in March and ruled the paltry number of religious exemptions granted and credible threats of punishment to service members who expressed their religious beliefs warranted relief.

On appeal, the Air Force argued before the Cincinnati-based Sixth Circuit in October the service members' failure to exhaust intramilitary remedies should have resulted in a judgment against them and prevented any court from hearing claims brought under RFRA, but the appeals court disagreed.

U.S. Circuit Judge Eric Murphy, a Donald Trump appointee, wrote the panel's opinion Tuesday and bluntly said the legislation "contains a right to sue," while the specific claims in this case were justiciable because the service members established standing by the paucity of exemptions granted by the Air Force and the class members' intentions to refuse the vaccine.

In the introduction to his opinion, Murphy accused the Air Force of working "at cross-purposes" in it challenges to both the individual and class claims brought by the service members.

"We are asked to deny that common questions exist for purposes of certifying a class but to accept that common answers exist for purposes of rejecting all 18 plaintiffs' claims on their merits. We decline this inconsistent invitation," he said.

Moving on to the merits of the service members' RFRA claims, Murphy rejected the government's argument the mandate supports its compelling interest in maintaining "military readiness."

"The Air Force cannot rely on its general readiness or health concerns to refuse specific exemptions," he said. "In the abstract, the Air Force may well have a compelling interest in requiring its 501,000 members to get vaccinated. It has also largely achieved this general interest, as evidenced by its ability to vaccinate over 97% of its force."

That abstract interest, however, cannot be used to deny specific exemptions to individuals like the 18 plaintiffs, whose religious objections to the vaccine have been documented as sincere, according to the ruling.

The Air Force's failure to shed light on the circumstances of the individual service members to prove why a vaccine would be required in their individualized work setting was fatal to its argument, said Murphy, who also pointed out the number of medical exemptions granted was far greater than those given for religious reasons.

The Air Force pushed back against this line of thought and argued medical exemptions are typically temporary, but Murphy was not persuaded.

"Religious and medical exemptions can be 'temporary' in an identical way," he said. "An allergic service member is permitted to wait for a new vaccine that does not contain the allergy-triggering ingredient. Most plaintiffs would likewise take a new vaccine made in a manner consistent with their beliefs."

A vaccine mandate also fails the "least restrictive means" test established under RFRA, according to the panel, which again cited the military's failure to conduct individualized inquiries into possible alternatives to a vaccine.

Murphy pointed out the injunction granted by the district court does not preclude the Air Force from reassigning the service members who refuse the vaccine, whether it be to work from home temporarily or to move to another station that does not involve close contact with other individuals.

The appeals court also upheld the lower court's grant of class certification, despite arguments from the Air Force that commonality requirements were not met.

The question of whether the Air Force has a "de facto" policy to reject all religious exemption requests to ensure the readiness of its members satisfies the commonality element, according to Murphy, because "whether this practice stems from an illegal broad-brush approach or from a legal individualized analysis – the answer will be the same for the whole class."

"The basic facts are undisputed," he concluded. "The Air Force has denied all religious-exemption requests unless a service member has agreed to leave within a certain time, and it has granted far more medical and administrative exemptions. Either the Air Force can justify these policies or it cannot. But the plaintiffs have pointed to specific questions that matter for the class's claims and that decisionmaker can resolve in 'one stroke.'"

Attorney Chris Wiest, who argued the case before the appeals court on behalf of the service members, lauded the panel's decision.

"My clients are extraordinarily pleased with this decision," he said. "We established, and the Court found, a substantial basis of systemic discrimination towards religious believers. This decision will protect the liberty and livelihood of approximately 10,000 class members, all of whom have undertaken to protect our country. The least we can do is extend to them the rights that they protect for all of us."

A representative for the U.S. Department of Justice did not immediately respond to a request for comment.

U.S. Circuit Judges Raymond Kethledge and John Bush, appointees of George W. Bush and Trump, respectively, also sat on the panel and joined in Murphy's opinion.

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