# Freincle v. Austin

> District Court, M.D. Florida · May 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10110170

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10110170

## How later opinions describe it (automated extraction)

- 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”
- noting that standing “implicates [the Court’s] subject matter jurisdiction”

## Opinion text

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

1c30
Copies to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110170. Public record. Not legal advice.