Hyatt v. Austin

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

BRITTANY BONGIOVANNI, et al.,

Plaintiffs,

vs. Case No. 3:22-cv-237-MMH-MCR

LLOYD AUSTIN, III, in his official

capacity as Secretary of Defense,

U.S. Department of Defense, et al.,

Defendants.

/

O R D E R

THIS CAUSE is before the Court on Plaintiffs’ Motion for Administrative

Stay, Temporary Restraining Order and Preliminary Injunction and

Memorandum in Support Thereof (Doc. 13; Motion), filed March 8, 2022.1 With

the agreement of the parties, the Court construed the Motion as seeking a

preliminary injunction, rather than a temporary restraining order, and set an

agreed upon briefing schedule. See Clerk’s Minutes (Doc. 23; Status

Conference) at 1. Defendants Secretary of Defense Lloyd Austin, III, Secretary

of the Air Force Frank Kendall, Commandant of the Coast Guard Karl Schultz,

Secretary of the Navy Carlos Del Toro, and Secretary of the Army Christine

1 In support of their Motion, Plaintiffs referred to the exhibits filed with their

Complaint for Declaratory and Injunctive Relief (Doc. 1; Original Complaint).

Wormuth—all sued in their official capacities—timely filed a response in

opposition to the Motion. See Defendants’ Opposition to Movants’ Request for

a Preliminary Injunction (Doc. 31; Response), filed March 28, 2022. Plaintiffs

then filed a reply. See Plaintiffs’ Reply Brief (Doc. 33; Reply), filed April 4, 2022.

On April 14, 2022, the Court held a hearing on the Motion at which the parties

argued their respective positions. See Clerk’s Minutes (Doc. 40; Hearing

Minutes). See generally Transcript of Hearing (Doc. 41; Transcript), filed April

15, 2022. At the Court’s request, the parties filed supplemental briefing on

April 22, 2022. See Plaintiffs’ Supplemental Brief (Doc. 43; Plaintiffs’ Supp.);

Defendants’ Supplemental Memorandum on Venue and Severance Issues (Doc.

44; Defendants’ Supp.). Accordingly, this matter is ripe for review.

I. Background2

This case arises from the Secretary of Defense’s August 24, 2021 mandate

that all members of the armed forces be vaccinated against COVID-19 (the

Vaccine Mandate). See Original Complaint, Ex. 2: Pentagon Memorandum

Dated Aug. 24, 2021 (Doc. 1-2; Vaccine Memo) at 2. In his August 2021 Vaccine

Memo, the Secretary of Defense advised that he “determined that mandatory

vaccination against coronavirus disease 2019 (COVID-19) is necessary to

2 The Court’s citations to page numbers in documents in the record refer to the CM-

ECF-stamped page numbers located at the top of each page, rather than a document’s internal

page numbers, if any.

protect the Force and defend the American people.” Id.; see Response, Ex. 9:

Declaration of William Merz (Doc. 31-10; Merz Decl.) at 20–27; Response, Ex.

3: Declaration of Major Scott Stanley (Doc. 31-4; Stanley Decl.) at 5.

Servicemembers refusing to comply with the Vaccine Mandate may face

administrative and disciplinary consequences, but “the vaccine will not be

forcibly administered to any member who refuses.” Response, Ex. 8:

Declaration of David J. Furness (Doc. 31-9; Furness Decl.) at 4 n.2; Merz Decl.

at 4 n.3.

The Department of Defense allows the service branches to grant

individual servicemembers three types of exemptions from the Vaccine

Mandate. See Vaccine Memo at 2. The three types of exemptions are medical,

administrative, and religious. See Response, Ex. 6: Declaration of Colonel

Artemio C. Chapa (Doc. 31-7; Chapa Decl.) at 6; Merz Decl. at 8; Furness Decl.

at 9–10. As relevant here, the Army, Air Force, Marine Corps, and Navy3

provide processes for servicemembers seeking exemptions from the Vaccine

Mandate based upon religious beliefs through religious accommodation

requests (RAR(s)). See Original Complaint, Ex. 8: FRAGO 5 TO HQDA EXORD

225-21 COVID-19 Steady State Operations (Doc. 1-8; Army Implementation) at

7–8, 14; Original Complaint, Ex. 7: COVID-19 Mandatory Vaccination

3 Each Plaintiff seeking preliminary injunctive relief in the Motion is a member of one

of these four branches of the military. See Motion at 2–4.

Implementation Guidance for Service Members (Doc. 1-7; Air Force

Implementation) at 19–21; Original Complaint, Ex. 9: Mandatory COVID-19

Vaccination of Marine Corps Active and Reserve Components (Doc. 1-9; Marine

Corps Implementation) at 10; Original Complaint, Ex. 10: Department of Navy

Mandatory COVID-19 Vaccination Policy (Doc. 1-10; Navy Implementation) at

5.

Plaintiffs, eighteen servicemembers from each branch of the armed forces,

initiated this action by filing their Original Complaint on March 2, 2022. See

generally Original Complaint; First Corrected Complaint for Declaratory and

Injunctive Relief (Doc. 25; Corrected Complaint) ¶¶ 1, 8–27. In the operative

Corrected Complaint, Plaintiffs allege that they are subject to the Vaccine

Mandate, see Corrected Complaint ¶ 1 & n.1, 39, and all of the Plaintiffs other

than Sgt. William Freincle assert that they have a sincere religious objection to

receiving the COVID-19 vaccine. See id. ¶¶ 8–27.4 These Plaintiffs filed RARs

with their respective services. See id.

Plaintiffs’ claims in this action generally fit into two categories. In the

first category are Plaintiffs’ causes of action related to their religious beliefs.

Plaintiffs assert that Defendants are using the threat of disciplinary action to

4 In a supplemental declaration submitted with the Reply, Sergeant Freincle, for the

first time, attempted to raise an objection based upon his beliefs. See Reply, Ex. 1 (Doc. 33-1;

Plaintiffs’ Supp. Decls.) at 2. However, observing that Sergeant Freincle could not amend the

Corrected Complaint through argument, the Court declined to consider his newly raised moral

objection to the Vaccine Mandate. See Transcript at 29–33.

coerce Plaintiffs into receiving a vaccine that violates their religious beliefs. See

id. ¶¶ 1, 3, 76–78. Plaintiffs also contend that Defendants’ RAR processes

merely “rubber stamp[]” the denials of their RARs. Id. ¶¶ 44, 81. In Count I,

Plaintiffs allege that the Vaccine Mandate and the process for RARs violate the

Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, et seq. See

Corrected Complaint ¶¶ 99–101. In Count II, Plaintiffs assert that the Vaccine

Mandate and the process for RARs violate the Free Exercise Clause of the First

Amendment to the U.S. Constitution. See id. ¶¶ 115–19. And, in Count III,

Plaintiffs allege that the process for RARs violates the Due Process Clause of

the Fifth Amendment. See id. ¶¶ 123–25. In the second category are Plaintiffs’

causes of action relating to the Administrative Procedure Act (APA) and public

health and informed consent laws. These allegations are found in Counts IV–

VI of the Corrected Complaint. See id. ¶¶ 129, 140–41, 148–49. Because the

Motion before the Court seeks preliminary injunctive relief based only on

Plaintiffs’ religious exercise claims found in Counts I, II, and III of the Corrected

Complaint, the Court need not elaborate on the claims in Counts IV–VI at this

time. See Motion at 12–20.

On March 8, 2022, Plaintiffs filed this Motion seeking preliminary

injunctive relief for seven Plaintiffs, Lt. Brittany Bongiovanni, Sgt. William

Freincle, Maj. Nicholas Harwood, Cdr. Lucian Kins, T.Sgt. Joseph Mazure, Lt.

Cdr. Jacob Montoya, and Maj. Tammara Nykun (collectively, “Movants”). See

generally Motion; see also Status Conference at 1. Movants originally asked

the Court to stay the implementation of the Vaccine Mandate, enjoin

Defendants from enforcing the mandate or administering the vaccine to

Plaintiffs, and enjoin Defendants from “taking any adverse or retaliatory action

against any Plaintiffs as a result of, arising from, or in conjunction with the

Plaintiffs’ religious accommodation requests or denials, or for pursuing this

action, or any other action for relief from Defendants’ constitutional, statutory,

or regulatory violations.” Motion to Supplement, Ex. 1: Text of Proposed Order

(Doc. 26-1; Proposed Order) at 1–2. In their Reply, however, Movants narrow

their requested relief, asking the Court to grant an injunction “preventing

Defendants from discharging or disciplining [Movants], pending resolution of

these matters on the merits.” Reply at 1.

The Court held a hearing on the Motion on April 14, 2022. For the reasons

stated on the record at the hearing, the Court denied the Motion as to Sergeant

Freincle for lack of standing as to the claims in Counts I–III. See Hearing

Minutes at 1; Transcript at 31–33.5 With regard to the other Movants, the

Court took the Motion under advisement and requested supplemental briefing

on venue, severance, and the first-to-file rule. See Hearing Minutes at 1.

5 Sergeant Freincle lacks standing to challenge the Vaccine Mandate under RFRA or

the Free Exercise Clause because, in the Corrected Complaint, he did not allege that he holds

a sincere religious objection to the COVID-19 vaccine. See Transcript at 29–33. Similarly, he

lacks standing to challenge the RAR system on due process grounds because he did not request

a religious accommodation. See id.

Specifically, the Court asked the parties to address whether Plaintiffs should

be severed by individual or by branch of the military and whether venue is

proper for Air Force Technical Sergeant Mazure’s claims. See Transcript at 69–

71. The parties filed their supplemental briefs regarding venue and severance

on April 22, 2022. See Plaintiffs’ Supp.; Defendants’ Supp. With the denial of

the Motion as to Sergeant Freincle, six Movants are before the Court seeking

preliminary injunctive relief.6 Two are members of the Air Force, one is a

member of the Marine Corps, and three serve in the Navy.

Joseph Michael Mazure is a technical sergeant in the Air Force who is

stationed at Hurlburt Field, Florida, and resides in Santa Rosa County, Florida.

Original Complaint, Ex. 1: Plaintiffs’ Declarations and RAR/Appeal Denials

(Doc. 1-1; Plaintiffs’ Decls.) at 94. Technical Sergeant Mazure asserts that he

has a religious objection to receiving the COVID-19 vaccine. Id. The Air Force

denied his initial RAR on December 5, 2021, and his appeal on January 31,

2022. Id. at 95–96. Because Technical Sergeant Mazure did not receive the

vaccine or an exemption to the Vaccine Mandate, the Air Force issued him a

Letter of Reprimand. See Plaintiffs’ Supp. Decls. at 16. The Air Force is not

allowing him to participate in any official travel or in training or deployment

6 In their Reply, Movants mention that two other Plaintiffs, Lt. Col. Torrey Hamilton

and Capt. Kyle Singletary, have had their RAR appeals denied since the Motion was filed. See

Reply at 5. However, they are not among the Movants for whom relief is sought in the Motion.

If these Plaintiffs wish to seek preliminary injunctive relief on their own behalf, they must file

a proper motion requesting such relief.

opportunities necessary to advance his career. Plaintiffs’ Decls. at 97. If

Technical Sergeant Mazure were to choose to voluntarily retire now, he would

have to pay back a reenlistment bonus and would lose a substantial amount of

retirement benefits that he could earn with a longer period of service. Id.

Tammara E. Nykun is a major in the Air Force domiciled in Tampa,

Florida. Id. at 119. Seeking an exemption from the Vaccine Mandate, Major

Nykun submitted an RAR, which the Air Force denied on October 8, 2021. Id.

at 119–20. Faced with potential disciplinary action for refusing the vaccine,

Major Nykun submitted retirement paperwork on November 10, 2021, and

resubmitted the paperwork on January 19, 2022. Id. at 124. The Air Force

denied her RAR appeal on December 9, 2021. See id. at 120; Response, Ex. 22:

Administrative Record for Nykun (Doc. 31-21; AR Nykun) at 36. Because Major

Nykun submitted her retirement request while her appeal was still pending,

“she was given a temporary administrative exemption and [was] not required

to receive the COVID-19 vaccine during the remainder of her service.”

Response, Ex. 17: Declaration of Brigadier General John D. McKaye (Doc. 31-

18; McKaye Decl.) at 4, 9. The Air Force placed Major Nykun on terminal leave

on February 7, 2022, and she remained in that status until her retirement

became effective on May 1, 2022. See id. at 9. Because she retired early, Major

Nykun will not receive full retirement benefits and will not receive TRICARE

or retirement pay until the age of 57. Plaintiffs’ Decls. at 125.

Maj. Nicholas C. Harwood is a member of the Marine Corps domiciled in

Volusia County, Florida. Id. at 47. He submitted an RAR that the Marine Corps

denied on September 21, 2021. Id. The Marine Corps denied the appeal of the

denial of his RAR on December 7, 2021. Id. Since the denial of the appeal, the

Marine Corps removed Major Harwood from his position as the executive officer

of his battalion. Id. at 50. Major Harwood received a Report of Misconduct and

expects to face a Board of Inquiry that will decide whether he should be

separated from the Marine Corps. See Motion, Ex. 1: Supplemental Declaration

of Major Nicholas C. Harwood (Doc. 13-1) at 2–3. If separated, he will have no

retirement, GI Bill, or medical benefits. Plaintiffs’ Decls. at 51. Major Harwood

is a named plaintiff in an ongoing lawsuit pending in the Northern District of

Florida which also asserts challenges to the Vaccine Mandate. See Motion at 4

n.2. See generally Coker v. Austin, No. 3:21-cv-01211-AW-HTC (N.D. Fla.).

Specifically, in that proceeding, Major Harwood raises informed consent and

APA challenges to the Vaccine Mandate similar to the claims in Counts IV–VI

of this action. See Motion at 4 n.2.

Brittany Bongiovanni is a lieutenant junior grade in the Navy. Plaintiffs’

Decls. at 3. She is domiciled in Duval County, Florida. Id. She filed an RAR to

be exempt from having to receive the COVID-19 vaccine, and the Navy denied

the request on November 28, 2021. See id. at 5. The Navy denied her RAR

appeal on January 26, 2022. Id. Because Lieutenant Junior Grade Bongiovanni

did not receive the vaccine or an exemption to the Vaccine Mandate, the Navy

removed her from a school program one month before the program ended and

has forced her to show cause for why she should be retained in the Navy. See

id. at 5–7. If separated, Lieutenant Junior Grade Bongiovanni may have to pay

back the cost of her Naval Academy education. Id. at 7.

Lucian Damian Kins is a commander in the Navy and is domiciled in

Duval County, Florida. Id. at 68. Commander Kins alleges that he has religious

objections to the COVID-19 vaccine and to COVID-19 polymerase chain reaction

(PCR) tests. Id. at 69. The Navy denied his initial RAR on October 22, 2021,

and his appeal on January 24, 2022. Id. In response to Commander Kins’s

refusal to take COVID-19 tests and to receive the vaccine, the Navy initiated a

non-judicial punishment proceeding, removed him from his position as the

executive officer of his ship, and gave him a Report of Misconduct that

recommends his separation from the Navy. See id. at 72. Commander Kins

expects to face a Board of Inquiry that may separate him from the Navy. See

id. Commander Kins laments that, if separated, he will likely lose millions of

dollars in pay, housing allowance, and retirement benefits, in addition to losing

the opportunity to serve his country’s national security. See id.

Jacob M. Montoya is a lieutenant commander in the Navy, domiciled in

Fernandina Beach, Florida. Id. at 111. Lieutenant Commander Montoya

asserts a religious objection to the COVID-19 vaccine. Id. at 111–12. The Navy

denied his initial RAR on August 20, 2021, and his appeal on January 23, 2022.7

Id. at 112. Because Lieutenant Commander Montoya did not receive the

COVID-19 vaccine or an exemption to the Vaccine Mandate, the Navy removed

him from his position as the executive officer of his submarine, issued a Report

of Misconduct, and may subject him to a Board of Inquiry. See id. at 113. If

separated, Lieutenant Commander Montoya will lose retirement and medical

benefits and will have to pay back portions of incentive pay that he received.

See id. at 113–14.

After Plaintiffs filed this action, the U.S. District Court for the Northern

District of Texas certified a class of “all Navy servicemembers subject to the

vaccine mandate who have submitted religious accommodation requests.” See

U.S. Navy SEALs 1–26 v. Austin, No. 4:21-CV-01236-O, 2022 WL 1025144, at

*1, *3, *13 (N.D. Tex. Mar. 28, 2022). After certifying the class, the court in

U.S. Navy Seals 1–26 issued a preliminary injunction enjoining the Department

of Defense and the Navy from enforcing the Vaccine Mandate as to the class

members. See id. at *13–14. By virtue of this injunction, the Navy is, at this

time, prohibited from enforcing the Vaccine Mandate as to the Naval

servicemember Plaintiffs in this action.

7 In his declaration, Lieutenant Commander Montoya identified the date of the appeal

denial as occurring in 2021. The Court assumes that this is a typographical error.

With this background, the Court considers the Movants’ request for

preliminary injunctive relief.

II. Legal Standard

A preliminary injunction is an extraordinary and drastic remedy. See

McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998); see also

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary

injunction is an extraordinary remedy never awarded as of right.”); Davidoff &

CIE, S.A. v. PLD Int’l Corp., 263 F.3d 1297, 1300 (11th Cir. 2001). Indeed, it

“is a powerful exercise of judicial authority in advance of trial.” Ne. Fla. Chapter

of Ass’n of Gen Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1284

(11th Cir. 1990). “A plaintiff seeking a preliminary injunction must establish

[1] that he is likely to succeed on the merits, [2] that he is likely to suffer

irreparable harm in the absence of preliminary relief, [3] that the balance of

equities tips in his favor, and [4] that an injunction is in the public interest.”

Winter, 555 U.S. at 20. The Eleventh Circuit has described the heavy burden

on a party seeking preliminary injunctive relief as follows:

A district court may grant a preliminary injunction only if the

moving party establishes that: (1) [he] has a substantial likelihood

of success on the merits; (2) [he] will suffer an irreparable injury

unless the injunction is granted; (3) the harm from the threatened

injury outweighs the harm the injunction would cause the

opposing party; and (4) the injunction would not be adverse to the

public interest.

Gonzalez v. Governor of Georgia, 978 F.3d 1266, 1270–71 (11th Cir. 2020); see

also Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). However,

the court also instructed that “the third and fourth factors merge when, as here,

the Government is the opposing party.” Gonzalez, 978 F.3d at 1271 (internal

quotations and citation omitted).

The movant, at all times, bears the burden of persuasion as to each of

these requirements. See Ne. Fla., 896 F.2d at 1285. In deciding whether a

party has met its burden, “[a] district court may rely on affidavits and hearsay

materials which would not be admissible evidence for a permanent injunction,

if the evidence is appropriate given the character and objectives of the

injunctive proceeding.” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d

982, 985 (11th Cir. 1995) (internal quotations and citation omitted); see also

Cumulus Media, Inc. v. Clear Channel Commc’ns, Inc., 304 F.3d 1167, 1171

(11th Cir. 2002) (“Preliminary injunctions are, by their nature, products of an

expedited process often based upon an underdeveloped and incomplete

evidentiary record.”). Notably, a party’s failure to establish any one of the

essential elements will warrant denial of the request for preliminary injunctive

relief and obviate the need to discuss the remaining elements. See Pittman v.

Cole, 267 F.3d 1269, 1292 (11th Cir. 2001) (citing Church v. City of Huntsville,

30 F.3d 1332, 1342 (11th Cir. 1994)); Del Monte Fresh Produce Co. v. Dole Food

Co., 148 F. Supp. 2d 1326, 1339 n.7 (S.D. Fla. 2001).8

III. Discussion

For the reasons discussed below, the Court finds that the Motion for

preliminary injunctive relief is due to be denied as to all Movants other than

Technical Sergeant Mazure.9

A. Major Nykun

Defendants argue that Major Nykun lacks standing to seek a preliminary

injunction because she has voluntarily retired and faces no future harm from

the Vaccine Mandate. See Response at 17–18. In their Reply, Movants argue

that Major Nykun’s retirement was not voluntary and that she has an injury

redressable through a preliminary injunction. See Reply at 7–9. Specifically,

8 Although decisions of other district courts are not binding, they may be cited as

persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310 (11th Cir. 2004)

(noting that, “[a]lthough a district court would not be bound to follow any other district court’s

determination, the decision would have significant persuasive effects”).

9 Movants and Defendants devote significant portions of their briefing to the question

of justiciability. See Motion at 6–12; Response at 8–15; Reply at 3–6. Courts traditionally

hesitate to “review internal military affairs.” Mindes v. Seaman, 453 F.2d 197, 199–201 (5th

Cir. 1971). This reluctance is prudential and based on a “judicial policy akin to comity.” Id.

at 199. Here, the Court concludes that certain of these Movants are not currently entitled to

the preliminary injunctive relief they seek. The analysis supporting this conclusion does not

require the Court to “review internal military affairs,” to “interfer[e] with the military

establishment,” or to “second-guess judgments requiring military expertise.” Id. Therefore,

at this time, the Court declines to determine the justiciability of Movants’ underlying claims.

Instead, the Court will hear oral argument on this issue on behalf of the single Movant in

whose favor preliminary injunctive relief may be proper at a hearing set by this Order.

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit

handed down prior to the close of business on September 30, 1981.

Movants assert that “court action finding that Defendants’ denial of her

religious accommodation likely violated RFRA would enable her to avoid forced

early retirement currently scheduled for May 1, 2022.” Id. at 9.

An argument asserting a lack of standing is a challenge to the Court’s

subject matter jurisdiction. Townsend v. U.S. Dep’t of Agric., No. 2:05-cv-439-

FtM-99DNF, 2007 WL 177857, at *1–2 (M.D. Fla. Jan. 19, 2007); Bochese v.

Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (noting that standing

“implicates [the Court’s] subject matter jurisdiction”). Federal courts are courts

of limited jurisdiction “‘empowered to hear only those cases within the judicial

power of the United States as defined by Article III of the Constitution,’ and

which have been entrusted to them by a jurisdictional grant authorized by

Congress.” See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir.

1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Article

III of the Constitution, by its plain language, limits the jurisdiction of federal

courts (the “judicial power” of the courts) to the consideration of cases and

controversies. Kelly v. Harris, 331 F.3d 817, 819 (11th Cir. 2003) (citing U.S.

Const. art. III, § 2, cl. 1; Ala. Power Co. v. U.S. Dep’t of Energy, 307 F.3d 1300,

1308 (11th Cir. 2002)). The doctrine of standing “stems directly from Article

III’s ‘case or controversy’ requirement,” Bochese 405 F.3d at 974, and ensures

that “federal courts do not exceed their authority,” Spokeo, Inc. v. Robins, 578

U.S. 856, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016). Indeed,

standing “is ‘perhaps the most important’ jurisdictional doctrine.” Bochese, 405

F.3d at 974 (quoting Bischoff v. Osceola County, 222 F.3d 874, 877–78 (11th

Cir. 2000)) (additional citations omitted). In the absence of standing, a federal

court lacks subject matter jurisdiction and is “powerless” to act. See id.; see also

Univ. of S. Ala., 168 F.3d at 410 (“Simply put, once a federal court determines

that it is without subject matter jurisdiction, the court is powerless to

continue.”).

In this action, Major Nykun, “as the party invoking federal jurisdiction,

bears the burden of establishing” that she has standing to pursue the claims

she alleges in the Corrected Complaint. Spokeo, 136 S. Ct. at 1547. The

Eleventh Circuit has unequivocally instructed that “[u]nder settled precedent,

the ‘irreducible constitutional minimum’ of standing consists of three elements:

the plaintiff must have suffered an injury in fact, the defendant must have

caused that injury, and a favorable decision must be likely to redress it.” See

Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). To carry

her burden, Major Nykun must establish each element of standing “in the same

way as any other matter on which the plaintiff bears the burden of proof, i.e.,

with the manner and degree of evidence required at the successive stages of

litigation.” See Bischoff, 222 F.3d at 878 (quoting Lujan, 504 U.S. at 561).

Notably, the Supreme Court has instructed that “standing is not

dispensed in gross; rather, plaintiffs must demonstrate standing for each claim

that they press and for each form of relief that they seek (for example, injunctive

relief and damages).” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208, 2210–

11 (2021). As relevant to the instant Motion seeking injunctive relief, “to have

standing to obtain forward-looking relief, a plaintiff [Major Nykun] must show

a sufficient likelihood that [s]he will be affected by the allegedly unlawful

conduct in the future.” Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d

1262, 1283 (11th Cir. 2001).

Here, Major Nykun does not have standing to seek a prospective

preliminary injunction because she faces no threat of imminent, future harm

that could be redressed through injunctive relief. Major Nykun made, what was

no doubt, the very difficult decision to submit retirement paperwork instead of

waiting for the Air Force to resolve her RAR appeal and possibly subject her to

disciplinary action. See Plaintiffs’ Decls. at 120, 124. As a result of that

decision, the Air Force placed Major Nykun on terminal leave and gave her an

administrative exemption from the Vaccine Mandate. See McKaye Decl. at 4,

9. Her retirement became effective on May 1, 2022. See id. Based upon Major

Nykun’s allegations in the Corrected Complaint, the infringement on her free

exercise of religion occurred in the past when she was forced to choose between

violating her conscience, facing disciplinary action, or retiring. Moreover, while

she seeks an order “preventing Defendants from discharging or disciplining

[her], pending resolution of these matters on the merits,” Reply at 1, such an

order, even if entered before May 1, 2022, would not have benefited her as she

faced no threat of discharge or discipline.

At the hearing, Movants argued that an order from this Court could help

to undo Major Nykun’s retirement. See id. at 9; Transcript at 20. Although

Major Nykun presented no evidence in support of this assertion, at the hearing,

Defendants’ counsel conceded that Major Nykun could request to withdraw her

resignation. See Transcript at 22–23. Movants assert that Major Nykun would

request to withdraw her resignation if the Court entered an order requiring the

Air Force (1) to accept a request to withdraw her retirement, (2) to give fair

consideration to such a request, or (3) not to decline the request in retaliation

for her RAR and lawsuit. See id. at 25–27. But, these requests for relief are

not properly before the Court because they are not found in the Corrected

Complaint, the Motion, the Proposed Order, or the Reply. In addition, an order

granting relief on at least the first two of these requests would be a mandatory

injunction that would go “beyond simply maintaining the status quo” and, thus,

is “particularly disfavored.” Powers v. Sec’y, Fla. Dep’t of Corrs., 691 F. App’x

581, 583 (11th Cir. 2017) (per curiam) (quoting Martinez v. Mathews, 544 F.2d

1233, 1243 (5th Cir. 1976)).10 Even if the third request were cast as a

prohibitory injunction, it is entirely speculative that Major Nykun would have

requested to withdraw her resignation and that the Air Force would not deny

that request for other reasons. See Duty Free Ams., Inc. v. Estee Lauder Cos.,

Inc., 797 F.3d 1248, 1272 (11th Cir. 2015) (“[The plaintiff] claimed at oral

argument that it would suffer injury if it resumes purchasing from [the

defendant] and becomes subject to [the defendant’s] requirements. This cannot

be characterized as a ‘concrete’ or ‘actual’ injury in fact because, by its very

terms, it has not yet occurred, and indeed may never occur.”).

More importantly, these requests for relief still ignore the fact that the

alleged irreparable harm—the violation of her right to religious freedom and

due process—traceable to Defendants’ conduct is alleged to have occurred in the

past when Major Nykun was forced to choose between retiring, facing

disciplinary action, or violating her religious beliefs. Her retirement, and the

monetary loss resulting from it, while certainly concrete, is a consequence of

that past harm—the choice Defendants required her to make potentially in

violation of her rights. Her retirement is not a threatened future injury. See

id. at 1270–72 (holding that the plaintiff did not have standing to seek

10 The Court does not rely on unpublished opinions as binding precedent; however,

they may be cited in this Order when the Court finds them persuasive on a particular point.

See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App.

P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but

they may be cited as persuasive authority.”).

prospective injunctive relief when the defendant’s requirements had allegedly

caused injury to the plaintiff in the past but the plaintiff was no longer subject

to the requirements and did not allege any actual and imminent future injury);

Shotz v. Cates, 256 F.3d 1077, 1082 (11th Cir. 2001) (“Here, the plaintiffs do

not allege a real and immediate threat of future discrimination. The complaint

contains only past incidents of discrimination. . . . Accordingly, the plaintiffs do

not have Article III standing [to seek injunctive relief].”). Major Nykun has no

standing to seek prospective injunctive relief because she is no longer subject to

Defendants’ Vaccine Mandate or the RAR process. Therefore, the Motion as to

Major Nykun is due to be denied because she does not have standing to seek

prospective injunctive relief.

B. Major Harwood

Defendants argue that Major Harwood cannot show a likelihood of

success because his claim should be dismissed for improper claim-splitting

because he is a plaintiff in a previously filed case, Coker v. Austin, No. 3:21-cv-

1211-AW-HTC (N.D. Fla.), pending in the Northern District of Florida. See

Response at 15. Defendants assert that this case and Coker involve identical

parties and arise from the same nucleus of operative facts concerning the

Marine Corps’ order that Major Harwood get fully vaccinated against COVID-

19. See id. at 16. Movants disagree. They argue that Major Harwood is not

improperly splitting his claims because, in Coker, Major Harwood is alleging

that the Vaccine Mandate violates informed consent laws and the APA but,

here, Major Harwood is alleging that the denial of his RAR violated his rights

under RFRA and the First Amendment. See Transcript at 7–8. According to

Movants, Major Harwood is seeking to have the Vaccine Mandate itself declared

unlawful in Coker, but, here, he is asking the Court to order the Marine Corps

to engage in an individualized assessment of his RAR. See id. at 10. Movants

also argue that Major Harwood would be denied an opportunity to bring his

religious exercise claims if the Court were to dismiss them for improper claim-

splitting. See id. at 11–12.

A district court has discretion to dismiss a case for improper claim-

splitting because of the district court’s authority to manage its own docket. See

Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833, 837–38 (11th Cir. 2017). “The

‘claim splitting doctrine’ applies where a second suit has been filed before the

first suit has reached a final judgment.” Id. at 840 n.3 (quoting Zephyr Aviation

III, L.L.C. v. Keytech Ltd., No. 8:07-CV-227-T-27TGW, 2008 WL 759095, at *6

(M.D. Fla. Mar. 20, 2008)). The Eleventh Circuit has instructed that “[i]t is well

settled that a plaintiff ‘may not file duplicative complaints in order to expand

[his] legal rights’” or “present only a portion of the grounds upon which relief is

sought, and leave the rest to be presented in a second suit, if the first fails.” Id.

at 841 (first alteration in original) (quoting Greene v. H & R Block E. Enters.,

Inc., 727 F. Supp. 2d 1363, 1367 (S.D. Fla. 2010)).

To determine whether improper claim-splitting has occurred, a district

court should consider “(1) whether the case involves the same parties and their

privies, and (2) whether separate cases arise from the same transaction or

series of transactions.” Id. at 841–42 (quoting Khan v. H & R Block E. Enters.,

Inc., No. 11-20335-Civ, 2011 WL 3269440, at *6 (S.D. Fla. July 29, 2011)).

Importantly, “[s]uccessive causes of action arise from the same transaction or

series of transactions when the two actions are based on the same nucleus of

operative facts.” Id. at 842. A court should make this determination

“pragmatically, giving weight to such considerations as whether the facts are

related in time, space, origin, or motivation, whether they form a convenient

trial unit, and whether their treatment as a unit conforms to the parties’

expectations.” Id. (quoting Petro-Hunt, L.L.C. v. United States, 365 F.3d 385,

396 (5th Cir. 2004)).

In Vanover, the plaintiff argued that her debt collection claims in two

successive lawsuits (Vanover I and Vanover II) were based on different facts

and led to different legal causes of action. See id. at 842. The Eleventh Circuit

rejected this “artificially narrow” distinction because “all of the alleged wrongs

. . . occurred consecutively in time and prior to filing the complaint in Vanover

I; hence, the collection efforts which form the basis of Vanover I and Vanover II

arise from the same transaction or series of transactions.” Id. at 842–43. The

court further explained, “Stated differently, the factual bases for both lawsuits

are related in time, origin, and motivation, and they form a convenient trial

unit.” Id. The court concluded,

[T]he addition of separate causes of action in Vanover II does not

prevent application of the claim-splitting doctrine. To rule

otherwise would defeat the objective of the claim-splitting doctrine

to promote judicial economy and shield parties from vexatious and

duplicative litigation while empowering the district court to

manage its docket.

Id.

Here, the Court finds that Major Harwood is not likely to succeed on the

merits of his claim in this action because he appears to be engaged in improper

claim-splitting. The Coker action pending in the Northern District of Florida

involves identical parties, Major Harwood, the Secretary of Defense, and the

Secretary of the Navy. See Second Amended Complaint for Declaratory and

Injunctive Relief, Coker v. Austin, No. 3:21-cv-01211-AW-HTC (N.D. Fla.) (Doc.

56) (Coker Complaint) ¶¶ 20, 31, 34. And both this case and the Coker case

arise from the same transaction or series of transactions. Although Major

Harwood brings new causes of action under RFRA and the First Amendment in

this case, these causes of action arise out of the same nucleus of operative

facts—the decision of the Secretary of Defense to impose the Vaccine Mandate

and the Marine Corps’ enforcement of the Vaccine Mandate. See Corrected

Complaint ¶¶ 1–7; Coker Complaint ¶¶ 1, 112, 118, 122, 144–45; Vanover, 857

F.3d at 842–43. The cases are related in time. The Marine Corps denied Major

Harwood’s RAR on September 21, 2021, before the Coker plaintiffs filed their

initial complaint on October 6, 2021. See Plaintiffs’ Decls. at 47; Complaint for

Declaratory and Injunctive Relief, Coker v. Austin, No. 3:21-cv-01211-AW-HTC

(N.D. Fla.) (Doc. 1). The Marine Corps denied his RAR appeal on December 7,

2021, before the Coker plaintiffs filed the currently operative complaint on

December 10, 2021. See Coker Complaint ¶ 20; Plaintiffs’ Decls. at 48. Thus,

Major Harwood could have brought his claims in the Coker action. Treating

these causes of action as one unit also likely conforms to the parties’

expectations because the other Plaintiffs in this case did bring their informed

consent, APA, and religious exercise claims together in one suit. See Corrected

Complaint ¶ 1.

The origin and motivation for these cases are also similar. In this case

and in Coker, Major Harwood is seeking to enjoin the Department of Defense

and the Marine Corps from requiring him to receive the COVID-19 vaccine as

required by the Vaccine Mandate. See Corrected Complaint ¶ 6; Coker

Complaint ¶ 1. Movants argue that the operative complaint in Coker challenges

the Vaccine Mandate itself while Major Harwood’s allegation here is that the

RAR process is unlawful regardless of whether the underlying mandate is

lawful. See Transcript at 7–8. Notably, Movants do not draw that distinction

in their Corrected Complaint. In the first paragraph of the Corrected

Complaint, they state that the “vaccine mandate . . . is unconstitutional because

it violates” the First Amendment and RFRA and “is also unlawful insofar as it

violates federal statutes” regarding informed consent, public health, and

administrative procedure. Corrected Complaint ¶ 1 (emphasis added). Even if

the Court were to recognize a distinction between the Vaccine Mandate itself

and the RAR process, the origin and motivation of the cases would still be the

same. The Vaccine Mandate at issue in Coker requires Major Harwood to get

vaccinated, and the denial of his RAR at issue here requires him to get

vaccinated. Movants argue that Major Harwood is asking this Court simply to

order the Marine Corps to engage in an individualized assessment of his RAR.

See Transcript at 10. But that is not the relief that he requests in the Corrected

Complaint or in the Motion. See Corrected Complaint ¶¶ 6, 110, 120; Motion

at 2, 4; Proposed Order at 1–2. Here, as in Vanover, “the factual bases for both

lawsuits are related in time, origin, and motivation, and they form a convenient

trial unit.” Vanover, 857 F.3d at 842–43.

The Court finds unpersuasive Movants’ argument that a dismissal of this

action would leave Major Harwood without an opportunity to bring his religious

exercise claims. See Transcript at 11–12. Movants provide the Court with no

reason for why these claims could not have been brought in Coker originally or

through a timely motion to file an amended complaint. See id. at 12, 15–16.

Therefore, Major Harwood’s claims are likely due to be dismissed for improper

claim-splitting. As such, Major Harwood is not able to demonstrate to this

Court that he is likely to succeed on the merits of his claims in this action, and

as a consequence fails to establish that he is entitled to the extraordinary

remedy of a preliminary injunction. The Motion is due to be denied as to him

for this reason.

C. Lieutenant Junior Grade Bongiovanni, Commander Kins,

and Lieutenant Commander Montoya

In their Reply, Movants inform the Court that Lieutenant Junior Grade

Bongiovanni, Commander Kins, and Lieutenant Commander Montoya are

members of the class certified by the district court in U.S. Navy SEALs 1–26,

2022 WL 1025144, at *1, *3, *13. The preliminary injunction in U.S. Navy

SEALs 1–26 prohibits the Department of Defense and the Navy from enforcing

the Vaccine Mandate as to the class members. See id. at *13–14. Because

Defendants are enjoined from enforcing the Vaccine Mandate as to Lieutenant

Junior Grade Bongiovanni, Commander Kins, and Lieutenant Commander

Montoya, these Movants cannot show that they are facing imminent irreparable

harm. See Faust v. Vilsack, No. 21-C-548, 2021 WL 2806204, at *3 (E.D. Wis.

July 6, 2021) (“[C]ourts that have considered the effect of a prior ruling granting

the same or similar relief have concluded that once another district court has

entered the same relief, the plaintiffs were no longer able to demonstrate the

irreparable harm that was needed to justify the extraordinary relief

requested.”). Therefore, the Court will defer consideration of the Motion as to

these Movants.11

D. Technical Sergeant Mazure

In response to Defendants’ arguments concerning venue and severance,

the Court questioned whether it had the power to rule on the Motion as to

Technical Sergeant Mazure when he did not appear to satisfy the requirements

of the venue statute. See Transcript at 35–37, 69. In their supplemental brief,

Defendants represent that they would not contest venue if Plaintiffs are

properly joined and provide the Court with authority for the proposition that

venue is proper as to Technical Sergeant Mazure if he is properly joined with

the other Plaintiffs. See Defendants’ Supp. at 5 n.2. Because the Court

concludes below that Technical Sergeant Mazure is properly joined with the

11 Defendants urge the Court not to retain jurisdiction over Lieutenant Junior Grade

Bongiovanni, Commander Kins, and Lieutenant Commander Montoya at all because they

have not exhausted their intra-military remedies. See Transcript at 43. In support of this

argument, Defendants cite Winck v. England, 327 F.3d 1296, 1307 n.10 (11th Cir. 2003). The

relevant language in Winck states, “Under the rule of Hodges, once exhaustion has been

determined to apply, the district court may not retain jurisdiction pending exhaustion of

administrative remedies.” Id. (citing Hodges v. Callaway, 499 F.2d 417, 421 (5th Cir. 1974)).

This rule does not prohibit the Court from deferring consideration of the Motion as to

Lieutenant Junior Grade Bongiovanni, Commander Kins, and Lieutenant Commander

Montoya for two reasons. First, the rule only applies “once exhaustion has been determined

to apply.” Id. The Court has not yet determined whether exhaustion applies. Second, the

Court in Winck clarified “that our opinion in Hodges v. Callaway, 499 F.2d 417, 419 & n. 5

(5th Cir. 1974), raised exhaustion sua sponte, referring to it as a ‘jurisdictional problem.’

However, ‘[w]hat we really determine is a judicial policy akin to comity.’” Winck, 327 F.3d at

1299 (quoting Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir. 1971)). Thus, abstaining from

deciding cases against the military is a matter of prudence, not of a court’s power to hear the

case.

other Plaintiffs who are members of the Air Force, the Court is satisfied that

venue is proper as to him.

The parties have not yet had an opportunity to argue justiciability or the

merits of the Motion as to Technical Sergeant Mazure. The Court anticipated

setting a supplemental hearing on the Motion as to his request for preliminary

injunctive relief in this action. But, in the interim, several Plaintiffs, including

Technical Sergeant Mazure, filed a new motion seeking preliminary injunctive

relief. See Plaintiffs’ Motion for Preliminary Injunction and Memorandum in

Support Thereof (Doc. 47), filed May 18, 2022. The Court struck that motion

but expects that these Plaintiffs will file a renewed motion for preliminary

injunctive relief. See Order (Doc. 48), filed May 20, 2022. Therefore, the Court

will direct Technical Sergeant Mazure to advise the Court whether he intends

to pursue preliminary injunctive relief through the currently pending Motion

or through a renewed motion joined with other Plaintiffs.

IV. Severance

In addition to resolving the Motion, the Court must determine whether

all eighteen Plaintiffs are properly joined in this single action. Defendants

argue that the Court should sever and dismiss without prejudice all Plaintiffs

except for the first-named Plaintiff. See Defendants’ Supp. at 13; Response at

18. Defendants contend that severance by individual Plaintiff is appropriate

because the RFRA and Free Exercise Clause claims require a fact-specific

inquiry into the circumstances of each Plaintiff. See Defendants’ Supp. at 6–7;

Response at 19; Transcript at 48, 62–63. Consequently, according to

Defendants, each individual Plaintiff’s claim will require different witnesses

and documentary proof. See Response at 19–20; Defendants’ Supp. at 8.

Defendants also assert that they will be unfairly prejudiced by joinder because

the relevant individual circumstances of each Plaintiff may be lost in a joint

case. See Defendants’ Supp. at 11. According to Defendants, severance would

not prejudice Plaintiffs because they could pursue their claims in individual

actions. See id. at 11–12.12

Plaintiffs, on the other hand, contend that the Court should not sever

their claims because joinder is allowed by the Federal Rules of Civil Procedure

(Rule(s)) and would promote the purposes of the Rules. See Plaintiffs’ Supp. at

1–2, 7. With regard to their religious exercise claims, Plaintiffs assert that they

challenge the same military policy to deny all RARs, including their own. See

id. at 8. Plaintiffs contend that there will be common questions of fact or law

because all Plaintiffs (except for Sergeant Freincle) have had their RARs denied

by form letters with no individualized assessment. See id. at 9. Regarding the

12 Defendants also argue that the Court “need not” reach severance because, whether

joined or not, all Plaintiffs are due to be dismissed for failing to exhaust military remedies and

for bringing claims that are not ripe. See Defendants’ Supp. at 2–5. Because the Court

determines that severance is appropriate as a preliminary matter of case management, the

Court will order severance prior to resolving the exhaustion and ripeness issues.

informed consent and APA claims in Counts IV–VI of the Corrected Complaint,

Plaintiffs argue that these claims involve the same military policy that

mandates that servicemembers become vaccinated with an unapproved

emergency use authorization vaccine. See id. at 8. Plaintiffs assert that they

are all subject to the Vaccine Mandate and face discipline for refusing it. See

id. at 8–9.

Next, Plaintiffs argue that severance would not promote judicial economy

because the separate cases would involve the same law and much of the same

proof. See id. at 12–13, 18; Transcript at 50–54, 60–61. Plaintiffs maintain that

Defendants will assert the same defenses as to all Plaintiffs whether severed or

joined. See Plaintiffs’ Supp. at 13. Plaintiffs also contend that joinder will

promote the public interest by ensuring a single ruling on Plaintiffs’ claims. See

id. at 14. According to Plaintiffs, severance by individual would increase their

expenses and delay relief. See id. at 15. Last, Plaintiffs argue that fundamental

fairness requires joinder because they cannot afford lawyers and must rely on

the limited number of attorneys who are willing to bring Plaintiffs’ claims on a

pro bono basis. See id. at 15–16.

Rule 20(a)(1) provides:

Persons may join in one action as plaintiffs if:

(A) 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; and

(B) any question of law or fact common to all plaintiffs will arise

in the action.

Rule 20(a)(1)(A)–(B). Courts are “strongly encouraged” to join claims, parties,

and remedies, “and the [r]ules are construed towards ‘entertaining the broadest

possible scope of action consistent with fairness to the parties.’” See Edwards-

Bennett v. H. Lee Moffitt Cancer & Research Inst., Inc., No. 8:13-cv-00853-T-

27TGW, 2013 WL 3197041, at *1 (M.D. Fla. June 21, 2013) (quoting United

Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966)). Whether multiple

claims arise from the same transaction, occurrence, or series of transactions or

occurrences depends on whether a “logical relationship” exists between the

claims. See Alexander v. Fulton County, 207 F.3d 1303, 1323 (11th Cir. 2000),

overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

“The ‘logical relationship’ standard is a ‘loose’ one that ‘permits a broad realistic

interpretation in the interest of avoiding a multiplicity of suits.’” Edwards-

Bennett, 2013 WL 3197041 at *1; see also Bollea v. Clem, 937 F. Supp. 2d 1344,

1350–51 (M.D. Fla. 2013); Barber v. America’s Wholesale Lender, 289 F.R.D.

364, 367 (M.D. Fla. 2013). Notably, similar issues of liability alone are not

sufficient to warrant joinder; the claims must also share operative facts. See

Edwards-Bennett, 2013 WL 3197041 at *2.

Regardless of its broad construction, however, Rule 20 “does not mandate

joinder, and even when joinder is permissible, courts may refuse it or may sever

plaintiffs or claims.” Nelson v. Blue Eyed Holdings, Inc., No. 13-60569-CIV,

2013 WL 6238056, at *4 (S.D. Fla. Dec. 3, 2013) (citation omitted). And, Rule

21 permits the Court to “sever any claim against a party.” Although Rule 21

generally relates to the misjoinder of parties, the severance provision “is not so

limited.” See Essex Ins. Co. v. Kart Constr., Inc., No. 8:14-cv-356-T-23TGW,

2015 WL 628782, at *5 (M.D. Fla. Feb. 12, 2015). Indeed, “[a] district court has

broad discretion when deciding whether to sever claims under Rule 21 and may

consider factors such as judicial economy, case management, prejudice to

parties, and fundamental fairness.” Id. (quoting Potts v. B & R, LLC, No. 8:13-

cv-2896-T-27TGW, 2014 WL 1612364, at *3 (M.D. Fla. Apr. 21, 2014)); see

Torres v. Bank of Am., N.A., No. 8:17-CV-1534-T-26TBM, 2017 WL 10398671,

at *2 (M.D. Fla. Oct. 6, 2017) (considering “(1) the interest of avoiding prejudice

and delay; (2) ensuring judicial economy; (3) safeguarding principles of

fundamental fairness; and (4) whether different witnesses and documentary

proof would be required for plaintiffs’ claims.” (quoting Hofmann v. EMI

Resorts, Inc., 2010 WL 9034908, at *1 (S.D. Fla. July 21, 2010))).

Here, as an initial matter, the Court notes that Plaintiffs appear to satisfy

the minimum requirements of Rule 20(a)(1). Plaintiffs assert a right to relief

arising out of the same transactions or series of transactions or occurrences.

The religious exercise claims in Counts I–III of the Corrected Complaint arise

out of the Vaccine Mandate and the alleged policy of denying all or nearly all

RARs. See Corrected Complaint ¶¶ 1, 88, 105, 117, 125. The informed consent

and APA claims in Counts IV–VI arise out of the Vaccine Mandate and the

Department of Defense’s subsequent guidance to treat vaccines labeled for

emergency use as interchangeable with vaccines labeled as FDA-approved. See

id. ¶¶ 130–31, 135, 140, 149. The claims also involve questions of law or fact

common to all Plaintiffs. A common question of fact will arise regarding the

existence of the alleged policy of blanket denials of RARs. The informed consent

and APA claims will likely involve nearly identical facts for all Plaintiffs

because those claims challenge the Vaccine Mandate itself and Department of

Defense guidance applicable to all the services. See Vaccine Memo at 2–3;

Original Complaint, Ex. 11: Memorandum from Assistant Secretary of Defense

(Doc. 1-11).

Although Plaintiffs satisfy the minimum requirements of Rule 20, the

Court finds that, at this stage of the proceedings, the purposes of joinder weigh

in favor of severing Plaintiffs according to the different branches of the military.

This case may end up requiring a fact-intensive inquiry into the individual

circumstances and legal claims of individual Plaintiffs. To succeed on a RFRA

claim, each Plaintiff will have to show that he or she has a sincere religious

conviction that has been burdened by the applicable Defendants’ conduct. See

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428

(2006). If a Plaintiff does demonstrate that his or her sincere religious

convictions have been substantially burdened by the applicable Defendants,

then the Defendants must demonstrate a compelling interest in enforcing their

policy “‘to the person’—the particular claimant whose sincere exercise of

religion is being substantially burdened.” Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682, 726–27 (2014) (quoting Gonzales, 546 U.S. at 430–31). Similarly,

the Defendants will have to demonstrate that refusing to exempt each Plaintiff

from the Vaccine Mandate is the least restrictive means to achieve their

compelling government interests. See 42 U.S.C. § 2000bb-1(b).

As Defendants note, Plaintiffs have many differences that may be

relevant under these legal standards. Plaintiffs have different ranks, jobs, and

work environments. See Plaintiffs’ Decls. at 3, 19, 23, 29, 33, 37, 39, 56, 68, 78,

87, 94, 98–99, 111, 119, 130, 140, 143, 145. They have different likelihoods of

deployment. See id. at 19, 23, 33, 43, 87, 134. Two Plaintiffs are in different

employment postures because they have submitted retirement paperwork. See

id. at 25–26, 125. Some Plaintiffs have alleged specific reasons why there is no

compelling interest in their vaccination; others have not. See id. at 88, 96, 135,

145. And, individual Plaintiffs have proposed different alternatives to

vaccination. See id. at 48, 95, 134 (wearing masks); id. at 134 (handwashing

and other hygienic practices); id. at 39, 44, 48, 98, 134 (social distancing and

teleworking); id. at 44, 69 (testing and temperature checks); id. at 39, 112

(screening for preexisting immunity); id. at 71 (taking vitamins and other

treatments and maintaining physical fitness). But see id. at 101–02 (objecting

to masking, testing, and isolation as discriminatory against individuals with

religious objections).

Plaintiffs argue that this particular RFRA case will not require the Court

to engage in an individualized analysis because their religious exercise is being

substantially burdened by an alleged common policy of denying all RARs. Even

assuming, arguendo, that Plaintiffs are correct that their religious exercise

claims will focus on a common policy to deny all RARs, the different branches

of the military present somewhat different inquiries. Among the branches, the

RAR processes differ. See Response, Ex. 7: Declaration of Chaplain, Major

Matthew J. Streett (Doc. 31-8; Streett Decl.) at 3–9 (Air Force); Furness Decl.

at 11–18 (Marine Corps); Merz Decl. at 8–10 (Navy). Because of the different

processes, different officers in different locations denied Plaintiffs’ RARs and

appeals. See AR Nykun at 23, 36 (Georgia and Washington, D.C.); Response,

Ex. 23: Administrative Record for Mazure (Doc. 31-22) at 6, 73 (Florida and

Washington, D.C.); Response, Ex. 21: Administrative Record for Harwood (Doc.

32-2) at 424, 433 (Virginia and Washington, D.C.); Response, Ex. 18:

Administrative Record for Bongiovanni (Doc. 31-19) at 343, 356 (Washington,

D.C.). The number of religious exemptions and other exemptions granted by

each service differs. See Original Complaint, Ex. 3, Third Notice of Compliance

Dated February 4, 2022, Navy Seal 1 v. Biden, No. 8:21-cv-2429 (M.D. Fla.)

(Doc. 1-3; Exemption Data) at 7–9, 12, 15, 19, 23. As do the duration and

practical consequences of medical and administrative exemptions. See Chapa

Decl. at 4 (Air Force); Marine Corps Implementation at 5; Response, Ex. 26:

Declaration of Rear Admiral Gayle D. Shaffer (Doc. 31-25; Shaffer Decl.) at 3

(Navy). Plaintiffs also make different allegations and point to different

evidence regarding some branches’ alleged opposition to granting any RARs.

See Plaintiffs’ Decls. at 39–40, 121, 145 (Air Force); id. at 48, 64 (Marine Corps);

id. at 25, 69, 112 (Navy); id. at 102, 106, 108 (Department of Defense generally).

Because of all of these factual differences, the claims against the different

branches will likely require significantly different documentary evidence and

witnesses.

Severance by branch of the military will mitigate the concerns of

Plaintiffs and Defendants. Severance by service will make these cases more

manageable and reduce the risk of prejudice to Defendants by lowering the

number of Plaintiffs in each case. The largest new case will involve only six

Plaintiffs, making it easier to highlight differences where relevant. Severance

by service also mitigates the fairness issues asserted by Plaintiffs. This Order

creates only a handful of cases instead of eighteen new cases. In addition,

severance by service promotes judicial economy. While severance by individual

Plaintiff could be warranted in the future for the religious exercise claims, the

informed consent and APA claims appear to present identical issues for each

Plaintiff. Severance on a service-wide basis reduces the potential inefficiency

of severing the informed consent and APA claims. Moreover, within branches

of the military, the Court anticipates that much of the documentary evidence

and many of the witnesses will be the same for the religious exercise claims.

For example, in the newly created Air Force case, Defendants may produce a

witness explaining the Air Force’s RAR process. Such a witness would be

common to all Plaintiffs in the Air Force but may not be competent to testify

about the RAR processes in other branches. Consequently, for pre-trial case

management and discovery, the Court will sever Plaintiffs’ claims into cases

organized by branch13 of the military without prejudice to reconsidering

individual severance at a later time.14

The Court must address one additional matter regarding severance.

Defendants argue that Plaintiffs Capt. Paul Dee and Chief Warrant Officer-4

John Hyatt may pursue their claims only in individual actions because of the

severance order in Crosby v. Austin, No. 8:21-cv-2730-TPB-CPT (M.D. Fla. Feb.

22, 2022) (Doc. 44). See Defendants’ Supp. at 12–13. Captain Dee and Chief

13 While recognizing that the Space Force is an independent branch of the military,

the Court will keep the Space Force together with the Air Force in this action because the

Department of the Air Force prescribes the same RAR process for both branches. See Streett

Decl. at 2–3; see also Creaghan v. Austin, No. CV 21-0981 (CKK), 2022 WL 1500544, at *2

(D.D.C. May 12, 2022) (“All [Department of the] Air Force orders are applicable to the United

States Space Force . . . as a constituent branch of the [Department] . . . .”).

14 For example, for the purposes of resolving dispositive motions or proceeding to trial,

the Court may find that severance by individual Plaintiff is warranted.

Warrant Officer-4 Hyatt were named plaintiffs in Crosby, an action against the

Secretary of Defense and the Secretary of the Navy, challenging the Vaccine

Mandate on the same grounds as they do in this action. See Complaint for

Declaratory and Injunctive Relief, Crosby, No. 8:21-cv-2730-TPB-CPT (Doc. 1)

¶¶ 1, 17, 21, 29, 32, 112, 120, 161, 167–70. On February 22, 2022, the Honorable

Thomas P. Barber severed the claims of all plaintiffs and dismissed Captain

Dee and Chief Warrant Officer-4 Hyatt’s claims without prejudice. Crosby, No.

8:21-cv-2730-TPB-CPT (Doc. 44) (slip op. at 4). In the order, Judge Barber

instructed the dismissed plaintiffs that their claims “may be commenced in

separate individual actions in appropriate venues.” Id. Defendants argue that

the severance order in Crosby is the law of the case here. See Defendants’ Supp.

at 12–13.

The law-of-the-case doctrine requires following prior legal conclusions

reached “in the same case.” Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254,

1264 n.3 (11th Cir. 2014). This doctrine “is an expression of good sense and

wise judicial practice,” not a limit on the court’s power. Id. (quoting Venn v. St.

Paul Fire & Marine Ins. Co., 99 F.3d 1058, 1063 (11th Cir. 1996)). The law-of-

the-case doctrine applies to decisions of coordinate courts when the same case

is moved “from one court to another by such means as transfer within a single

system, realignment of appeals structures, removal, reference of specific

questions by such means as abstention or certification, or remand after

removal.” Charles Alan Wright & Arthur R. Miller, 18B Fed. Prac. & Proc.

Juris. § 4478.4 (3d ed.), Westlaw (database updated Apr. 2022). When one

federal court dismisses an action without prejudice, another federal court may

“face the same case if a second action is filed;” but there is “little precedent in

this area.” Id.

Despite expressing skepticism that this Court is formally bound by the

decision in Crosby under the law-of-the-case doctrine, the Court finds that

deferring to Judge Barber’s ruling is appropriate as a matter of “good sense and

wise judicial practice.” Pope, 752 F.3d at 1264 n.3. On February 22, 2022,

Judge Barber instructed Captain Dee and Chief Warrant Officer-4 Hyatt that

they may pursue their claims in separate individual actions in proper venues.

Instead of filing separate individual actions, on March 2, 2022, Captain Dee and

Chief Warrant Officer-4 Hyatt filed this case jointly. And, instead of filing in

the proper venue, they initiated this case in the Jacksonville Division. Under

Local Rule 1.04(a)–(b) of the Local Rules of the U.S. District Court for the

Middle District of Florida (Local Rule(s)), the proper division in which they

should have filed was the Tampa Division because Captain Dee and Chief

Warrant Officer-4 Hyatt are domiciled in Tampa. See Plaintiffs’ Decls. at 23,

56. Allowing them to proceed jointly here would encourage severed parties to

seek inappropriate “do-overs” with a new judge. 15 Therefore, the Court will

sever Captain Dee and Chief Warrant Officer-4 Hyatt on an individual basis

and direct the Clerk of the Court to create new individual cases for their claims

in the Tampa Division.

V. Conclusion

In conclusion, the Court finds that the Motion is due to be denied as to

Major Nykun and Major Harwood. With regard to Lieutenant Junior Grade

Bongiovanni, Commander Kins, and Lieutenant Commander Montoya, the

Court will defer consideration of the Motion. Because Technical Sergeant

Mazure will be joined with the other Air Force Plaintiffs for whom venue is

proper in this Court, venue is proper as to his claims as well. Therefore, the

Court will hear oral arguments as to his claims, either at a hearing on a new

motion for preliminary injunctive relief or at a supplemental hearing on the

currently pending Motion. In addition, the Court determines that Plaintiffs

should be severed into new cases organized by the branches of the military. The

Court will place Captain Dee and Chief Warrant Officer-4 Hyatt into individual

cases in the Tampa Division in deference to the order in Crosby. Accordingly,

it is

15 Notably, Plaintiffs’ counsel in this case also represented Captain Dee and Chief

Warrant Officer-4 Hyatt in Crosby.

ORDERED:

1. Plaintiffs’ Motion for Preliminary Injunction (Doc. 13) is DENIED,

in part, and DEFERRED, in part.

A. As to Tammara Nykun and Nicholas Harwood, the Motion is

DENIED.

B. As to Brittany Bongiovanni, Lucian Kins, and Jacob

Montoya, the Court DEFERS ruling on the Motion pending

relevant developments in U.S. Navy Seals 1–26.

C. As to Joseph Mazure, the Court DEFERS ruling on the

Motion.

2. Plaintiff Joseph Mazure is DIRECTED to advise the Court on or

before June 2, 2022, whether he intends to pursue preliminary

injunctive relief through the existing Motion (Doc. 13) or through a

new motion.

3. Pursuant to Rule 21, the claims of the Plaintiffs in this action are

SEVERED into separate actions against each military service.

4. The following parties shall remain in the instant case:

A. Plaintiffs: ERIN DAVIS, TORREY HAMILTON, JOSEPH

MAZURE, JOHN MCAFEE, TAMMARA NYKUN, and

KYLE SINGLETARY.

B. Defendants: LLOYD AUSTIN, III, in his official capacity as

Secretary of Defense, U.S. Department of Defense, and

FRANK KENDALL, in his official capacity as Secretary of the

Air Force, Department of the Air Force.

5. Without charging a filing fee, the Clerk of the Court is directed

to open four new civil cases in the Jacksonville Division as

follows:

A. WILLIAM FREINCLE vs. LLOYD AUSTIN, III, in his official

capacity as Secretary of Defense, U.S. Department of

Defense, and CHRISTINE WORMUTH, in her official

capacity as Secretary of the Army, Department of the Army.

B. VIVIENNE DYAL, CHARLES MATHIS, NICHOLAS

POEHLER, and ANDREW RUPP vs. LLOYD AUSTIN, III,

in his official capacity as Secretary of Defense, U.S.

Department of Defense, and KARL SCHULTZ, in his capacity

as Commandant of the Coast Guard.

C. NICHOLAS HARWOOD vs. LLOYD AUSTIN, III, in his

official capacity as Secretary of Defense, U.S. Department of

Defense, and CARLOS DEL TORO, in his official capacity as

Secretary of the Navy, Department of the Navy.

D. BRITTANY BONGIOVANNI, LUCIAN KINS, EDWARD

MACIE, and JACOB MONTOYA vs. LLOYD AUSTIN, III, in

his official capacity as Secretary of Defense, U.S. Department

of Defense, and CARLOS DEL TORO, in his official capacity

as Secretary of the Navy, Department of the Navy.

6. The Clerk is directed to direct assign the new cases in the

Jacksonville Division to the undersigned and the Honorable Monte

C. Richardson, United States Magistrate Judge.

7. Without charging a filing fee, the Clerk is directed to open two

new civil cases in the Tampa Division as follows:

A. JOHN HYATT vs. LLOYD AUSTIN, III, in his official

capacity as Secretary of Defense, U.S. Department of

Defense, and CARLOS DEL TORO, in his official capacity as

Secretary of the Navy, Department of the Navy.

B. PAUL DEE vs. LLOYD AUSTIN, III, in his official capacity

as Secretary of Defense, U.S. Department of Defense, and

CARLOS DEL TORO, in his official capacity as Secretary of

the Navy, Department of the Navy.

8. The Clerk is further directed to file a copy of all the docket entries

from the instant case into the new cases, including a copy of this

Order.

9. Plaintiffs are DIRECTED to file amended complaints in the new

cases on or before June 17, 2022.

DONE AND ORDERED in Jacksonville, Florida, on May 24, 2022.

MARCIA MORALES HOWARD

United States District Judge

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Copies to:

Counsel of Record

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