Poffenbarger v. Kendall

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MICHAEL POFFENBARGER, :

:

Plaintiff, : Case No. 3:22-cv-1

:

v. : Judge Thomas M. Rose

:

FRANK KENDALL, et al., :

:

Defendants. :

______________________________________________________________________________

ENTRY AND ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR A

PRELIMINARY INJUNCTION (DOC. NO. 2) AND ISSUING A PRELIMINARY

INJUNCTION

______________________________________________________________________________

Pending before the Court is the Motion for Preliminary Injunction (within Doc. No. 2) (the

“Motion”) filed by Plaintiff Michael Poffenbarger (“Poffenbarger”). Poffenbarger is a reservist in

the United States Air Force (the “Air Force”) stationed at Wright-Patterson Air Force Base. In

short, Poffenbarger’s claims in this lawsuit challenge the Air Force’s administration of its COVID-

19 vaccination mandate, in particular its administration of religious exemption requests. He

alleges that there is a “systematic effort” by the Defendants1 and those who report to them to

“flagrantly violate federal law … in a concerted and deliberate effort to violate the rights of

members of the Air Force” under the Religious Freedom and Restoration Act (“RFRA”) and the

Free Exercise Clause of the First Amendment, as demonstrated by the Air Force’s failure “to

approve a single religious accommodation request” while approving “thousands of administrative

1 The Defendants are alleged to be the Secretary of the United States Air Force (Hon. Frank Kendall), Surgeon General

of the Air Force (Lt. General Robert I. Miller), Commander of the U.S. Air Force Reserve Command (Lt. General

Richard W. Scobee), Commander of the Fourth Air Force (Maj. General Jeffrey T. Pennington), Poffenbarger’s

Squadron Commander (Lt. Colonel Christopher Kojak), Poffenbarger’s Wing Commander (Colonel Raymond Smith),

and the United States of America. (Doc. 1 at PageID 1-3.)

or medical exemptions to the same requirement.” (Doc. 1 at PageID 2-3.) With respect to the

Motion presently before the Court, Poffenbarger seeks broad preliminary injunctive relief,

including issuance of a preliminary injunction for “the entirety of those in the Air Force’s religious

exemption process whose beliefs have been found to be sincere, as well as those who have already

had their requests denied despite their sincerely held beliefs” (Doc. No. 26 at PageID 1038).

Defendants (in their official capacity only) (“Defendants”) filed an opposition to the

Motion, asking that Poffenbarger’s requested preliminary relief be denied for multiple reasons.

(Doc. No. 22.) Defendants argue that Poffenbarger fails to satisfy the standard for preliminary

injunctive relief (with none of the factors weighing in favor of Poffenbarger) and that, even if the

Court disagrees and decides to issue a preliminary injunction, “any relief should be no broader

than necessary to provide relief to” Poffenbarger only, not others. (Id. at PageID 371.)

The Court finds that a relatively limited preliminary injunction should be issued that

essentially preserves the status quo during the pendency of this matter to prevent Defendants from

imposing any further adverse action against Poffenbarger (only) for his refusal to comply with an

order requiring him to receive a COVID-19 vaccine. For the reasons discussed below, and in

accordance with Federal Rule of Civil Procedure 65, the Court GRANTS, IN PART,

Poffenbarger’s request for issuance of a preliminary injunction and ISSUES a preliminary

injunction whose terms are specifically set forth in this Order’s CONCLUSION section.

I. BACKGROUND

A. Lieutenant Poffenbarger

According to his testimony at the preliminary injunction hearing, Poffenbarger enlisted in

the Air Force in 2005 and served for a number of years as an active duty member. His service

included two overseas deployments. In 2014, Poffenbarger decided to leave active duty and

transfer to the reserves. He has been a Christian for his entire life, and he has a wife and four

children under the age of ten. Poffenbarger has full-time civilian employment, working as a field

surveyor. He does not receive health care benefits through that employment; he and his family

receive health care benefits through his service with the Air Force Reserve.

Poffenbarger is a member of the Air Force Reserve who was commissioned as a Second

Lieutenant in the fall of 2021. (Doc. No. 22-18 (Kojak Decl.) at PageID 967-68.) He is assigned

to work as an intelligence officer. (Id.) Before he can perform his duties as an intelligence officer,

Poffenbarger must attend intelligence technical school. (Id.; Doc. No. 22-17 (Maguinness Decl.)

at PageID 962-63.) Due to the sensitive nature of the training, which includes the use of classified

materials and systems, the training takes place in a secured facility. (Doc. No. 22-17 at PageID

962-63.) Windows and doors at secured facilities must remain closed. (Id.) The classrooms within

the secured facility are consistently fully occupied (each with approximately 15 students and one

instructor) and are not large enough to ensure six feet of social distancing among students and

instructors. (Id.) Current Air Force policy does not permit any unvaccinated individuals to attend

new training courses because service members would be in close contact with others during

training. (Doc. No. 22-18 at PageID 968.)

If Poffenbarger were to complete training, then his duties would require the use of

classified materials and systems. (Doc. No. 22-18 at PageID 969-70.) For security purposes,

classified systems (e.g., a classified computer network) cannot be accessed, and classified

materials cannot be viewed, outside a secured facility. (Id.) Therefore, to perform his duties as an

intelligence officer, Poffenbarger would be required to work one weekend (eight hours both days)

every month in a secured facility, as well as to be prepared for potential deployment worldwide.

(Id. at PageID 969-70, 973.) As a reservist, he does not work full-time for the Air Force. (Id.)

During ordinary weekends working as a reserve, Poffenbarger would routinely be working

in close physical contact with 10 to 12 service members. (Doc. No. 22-18 at PageID 969-70.) In

the secured facility, his desk would be in a secure room (approximately 1,500 square feet in size)

in a group of about eight desks, each separated from one another by large bookcases. (Doc. 11-1

at PageID 291-92.) According to Poffenbarger, several of the full-time staff currently telework

most days during the month. (Id. at PageID 292.) Poffenbarger acknowledged at the preliminary

injunction hearing that he needs to be present at the secure room to access the confidential materials

that he uses for his military duties, and that his work requires interaction with other military

personnel.

B. Air Force COVID-19 Vaccination Mandate and Exemptions

On September 3, 2021, Defendant Kendall, in his role as Secretary of the United States Air

Force, issued a memorandum with the subject: “Mandatory Coronavirus Disease 2019 Vaccination

of Department of the Air Force Military Members.” (Doc. No. 1-1; see also Doc. No. 2-1.) That

memorandum stated, in part:

On 24 August 2021, the Secretary of Defense issued a mandate for all members of

the Armed Forces under Department of Defense authority on active duty or in the

Ready Reserve, including the National Guard, to immediately begin full

vaccination against COVID-19. … Only COVID-19 vaccines that receive full

licensure from the Food and Drug Administration (FDA) will be utilized for

mandatory vaccinations unless a military member volunteers to receive a vaccine

that has obtained U.S. Food and Drug Administration Emergency Use

Authorization or is included in the World Health Organization’s Emergency Use

Listing. Individuals with previous COVID-19 infection or positive serology are

not considered fully vaccinated and are not exempt.

(Doc. No. 1-1.)

The Air Force has granted temporary medical exemptions and administrative exemptions

from the COVID-19 vaccine mandate. (See, e.g., Doc. No. 22-16 (Little Decl.) at PageID 885;

Doc. No. 22-19 (Poel Decl.) at PageID 985.) Medical exemptions are provided in situations where

medical issues are temporary (e.g., during pregnancy) or permanent (e.g., allergic or severe adverse

reaction to ingredients in a vaccine). (Doc. No. 22-19 at PageID 985.) Granting these exemptions

as temporary exemptions “allows individuals who have a temporary medical condition … to get

vaccinated after that temporary condition has resolved” and “also allows the Air Force to reassess

individuals with allergies or severe adverse reactions to determine whether a vaccine has been

approved which [sic] constitutes the member can safely take.” (Id.)

The Air Force also has policies and procedures for addressing religious accommodation

requests, including requests for a religious exemption from the COVID-19 vaccine mandate. (Doc.

No. 22-13 (Streett Decl.) at PageID 744, 747.) Poffenbarger alleged in his Complaint that, “[u]pon

information and belief, [Defendant Kendall, the Secretary of the Air Force] gave directives to

Commanders, through official and/or unofficial channels, that religious accommodations were not

to be granted to the COVID-19 vaccination policy.” (Doc. No. 1 at PageID 6.)

According to a declaration submitted by the Defendants, “[t]o ensure commanders are

properly informed of the facts and circumstances of the [religious exemption] request and able to

make an informed recommendation and/or decision, the Air Force uses a Religious Resolution

Team, which is a multidisciplinary team that advises commanders regarding resolution of religious

liberty matters.” (Doc. No. 22-13 at PageID 746.) Yet, the requirement for using that team was

temporarily waived by the Air Force Reserve Command for purposes of assessing religious

exemption requests for the COVID-19 vaccine mandate. (Id. at PageID 747; Doc. No. 22 at

PageID 343.)

Based on a declaration submitted in another pending federal case, as of February 3, 2022,

the Air Force had granted 1,513 temporary medical exemptions and 2,314 total administrative

exemptions from the COVID-19 vaccine mandate. (Doc. No. 26-1.) As of the same date, the Air

Force had granted only nine religious exemption requests.2 (Id.) With respect to the religious

exemption requests, the Air Force approved eight and denied 3,180 at the initial review stage, and

the Air Force approved one and denied 443 at the appeals stage. (Id.) It appears that those nine

religious exemption approvals all happened after Poffenbarger filed his complaint in this action

(after he had exhausted his administrative appeals). Air Force Officer v. Austin, No. 5:22-cv-9, --

- F. Supp. 3d ---, 2022 WL 468799, at *1 n.3 (M.D. Ga. Feb. 15, 2022) (“as of January 31, 2022,

the Air Force had yet to approve a single religious exemption,” and “the Air Force granted these

nine exemptions in the” following two weeks). Therefore, at the time when Poffenbarger filed this

case and asked for preliminary injunctive relief (and for a few weeks thereafter), the Air Force had

not approved a single religious exemption request to the COVID-19 vaccine mandate—temporary

or otherwise. Id. at *1 (“[d]espite thousands of requests for religious exemption, the Air Force

hadn’t granted a single one of them when [p]laintiff filed her Complaint”).

C. Poffenbarger’s Request for a Religious Exemption and Its Denial

On or about October 2, 2021, Poffenbarger was on active duty and received a direct order

to be vaccinated against COVID-19. (Doc. No. 1 at PageID 4; Doc. No. 1-2 (“I am ordering you

to receive an initial dose of a COVID-19 vaccine with full licensure approval from the FDA AND

provide proof by 3 October 2021”) (emphasis removed).) The order also indicated the possibility

of receiving an exemption. (Doc. No. 1-2 at PageID 17 (“The due date above also applies to

exemptions. This means you must provide either a completed request for a religious

accommodation addressed to the AFRC Commander (delivered to me) or proof of a medical

exemption approved by a military medical provider.”).)

In response to the order, Poffenbarger submitted a request for a religious exemption. (Doc.

2 Poffenbarger relies on the data in the declaration, and the Defendants do not dispute it. At the preliminary injunction

hearing, Defendants’ counsel said that approximately ten religious exemptions have now been granted.

No. 1 at PageID 4.) As part of that process, he was interviewed multiple times by an Air Force

Chaplain. (Id. at PageID 2.) He asserts this was done “to determine the sincerity of his beliefs

and that the mandate[] substantially burdened those beliefs.” (Id.) Poffenbarger explained his

religious beliefs, and the burden placed on his expression of those beliefs, to the Air Force. (See

Doc. No. 1-4 at PageID 21-22.) For example, he told the Air Force:

As a Christian, I am compelled to consider the commandments of my Creator and

evaluate my actions based on both short-term earthly concerns and the eternal. …

All COVID-19 vaccines are associated with abortion. The J&J used abortion cell

lines in the design, production, and testing phases … The Pfizer and Moderna both

used these cell lines in the testing phase … My faith makes it clear that the murder

of innocents is a sin. … Abortion is absolutely contrary to these basic religious

tenants; thus, I cannot engage in activities which are connected to this act. … I

know that to accept injection of any currently available or the FDA approved

Comirnaty COVID-19 vaccinations would be a sin. I would be a willing and

knowing participant in the murder of innocents. It is also my belief that using these

technologies to force our bodies to manufacture this pathogenic protein is not a part

of God’s plan for our bodies. ….

(Doc. No. 1-4 at PageID 21-22.) Poffenbarger testified during the preliminary injunction hearing

that, to his knowledge, all currently available COVID-19 vaccines are associated with abortion;

he does not object to taking vaccines as a general matter; he received other vaccines required by

the military because, to his knowledge, they do not suffer from this same issue; and he would be

willing to receive a COVID-19 vaccine if one is manufactured that does not suffer from this same

issue.

On or about October 22, 2021, Poffenbarger’s religious exemption request was denied.

(Doc. No. 1 at PageID 5; Doc. No. 1-3.) The denial acknowledged the sincerity of his religious

beliefs, but stated that mission readiness required Poffenbarger to receive COVID-19 vaccination.

(Doc. No. 1-3.) More specifically, it stated: “I understand your concerns, which are based on your

sincerely held beliefs. … I do not doubt the sincerity of your beliefs.” (Id.) The denial explained:

Given the importance of our mission, the Department of Defense and the

Department of the Air Force have a compelling government interest in maintaining

a healthy and ready military force through vaccination. Specifically regarding the

COVID-19 vaccination, since less restrictive means of protecting our force from

COVID-19 are unavailable, all uniformed Airmen must be fully vaccinated against

COVID-19 and other infectious diseases. Individual medical readiness is a critical

requirement for maintaining a healthy and ready force.

(Id.)

Poffenbarger then proceeded with an administrative appeal. (Doc. No. 1 at PageID 5; Doc.

No. 1-4.) On or about December 8, 2021, that appeal was denied. (Doc. No. 1 at PageID 5; Doc.

No. 1-5 (“There are no less restrictive means available in your circumstance as effective as

receiving the above immunization in furthering these compelling government interests.”).) The

decision on that appeal was the denial of his “final appeal.” (Doc. No. 1-5.)

On or about December 10, 2021, Poffenbarger received an order from his commander that

required him to be vaccinated on his next duty day, which was January 3, 2022. (Doc. No. 1-6.)

The order stated: “Failure to comply with this lawful order may result in administrative and/or

punitive action for Failing to Obey an Order under Article 92, Uniform Code of Military Justice.”

(Id.) Pursuant to that article, “Any person subject to [the Uniform Code of Military Justice] who

(1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any

other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to

obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-

martial may direct.” 10 U.S.C. § 892. According to Poffenbarger, he is unable to comply with the

order because it violates his “fundamental dictates of religion,” “even if it means federal prison

through the UCMJ process.” (Doc. No. 1 at PageID 7.)

On January 3, 2022, Poffenbarger’s Wing Commander issued him a Letter of Reprimand

for failure to follow the order to receive his first dose of the COVID-19 vaccine. (Doc. No. 15-1

(Smith Decl.) at PageID 309.) However, that Letter of Reprimand was issued prior to coordinating

with the 4th Air Force, so it was rescinded and a new, nearly identical Letter of Reprimand was

issued on January 10, 2022. (Id. at PageID 310; Doc. No. 15-1 (1/10/22 Letter of Reprimand) at

PageID 314 (“It has come to my attention you have failed to follow a lawful order to get the Pfizer

COVID-19 vaccine. … This is a violation of Article 92, Uniform Code of Military Justice. …

You are hereby reprimanded! As a member of the United States Air Force, it is your duty to obey

the lawful orders of your Commander. In the future, I expect you to obey the orders of your

Commander and adhere to all laws and Air Force standards. Further misconduct may result in

more severe action.”).) Poffenbarger was also issued a “Notification of Denial of Participation,

placing him in a No Pay/No Points status” and “excus[ing] [him] from future drill while the Letter

of Reprimand is pending.” (Doc. No. 15-1 at PageID 310, 317.) If the Letter of Reprimand is

upheld, then “Air Force regulation requires that it be placed in his Unfavorable Information File,”

and, if he “continues to not be vaccinated, Air Force policy directs that he be involuntarily

reassigned to the IRR [Individual Ready Reserve].” (Id.) If he is reassigned to the IRR, then his

eligibility for health care benefits will be affected. (Id.) “The IRR is not a discharge or separation”;

“[t]he service member remains a member of the Air Force, but is not participating in any pay or

points gaining activities.” (Id.) At least as of February 22, 2022, Poffenbarger was still receiving

reduced-rate health insurance benefits through the military; he had not been discharged from the

service; no discharge proceedings had been initiated; and, he had not been court-martialed.

Poffenbarger filed his Complaint on Sunday, January 2, 2022 as a verified class action

complaint for declaratory judgment and injunctive relief. (Doc. No. 1.) The Complaint makes

two claims: (1) violation of the RFRA, and (2) violation of the First Amendment of the United

States Constitution. (Id.) The same day, Poffenbarger filed the Motion. (Doc. No. 2.) He

supplemented his argument on January 10, 2022. (Doc. No. 11.) On January 31, 2022, the

Defendants filed an opposition to the Motion (Doc. No. 22) (the “Opposition”). On February 14,

2022, Poffenbarger filed a reply in support of the Motion (Doc. No. 26) (the “Reply”). This was

followed by two notices of supplemental authority filed by Poffenbarger. (Doc. Nos. 27 and 29.)

On February 22, 2022, the Court held a preliminary injunction hearing at which Poffenbarger

testified and counsel for Poffenbarger and Defendants provided oral argument.

II. ANALYSIS

Poffenbarger requests that the Court issue a preliminary injunction (1) “to include granting

his religious exemption,” and (2) “requiring Defendants to comply with the federal RFRA both as

to Poffenbarger and more broadly to the other airmen whose rights Defendants are [allegedly]

violating.” (Doc. No. 2 at PageID 44.) Poffenbarger more specifically requests an injunction that

“(i) requires the immediate processing and acceptance of Lt. Poffenbarger’s religious

accommodation request under RFRA; (ii) requires timely and good faith processing of other

religious accommodation requests in accordance with the timeliness contained in current

Department of Defense instructions, and appropriately considers whether such request can be

accommodated within the framework of RFRA and its least restrictive means (as well as a fulsome

consideration of alternatives to denial of such request); and (iii) ceases the Defendants’ current

policies of engaging in a double standard between medical and administrative exemptions, on the

one hand, which are granted where appropriate, and religious exemptions, on the other, which are

never granted.” (Id. at PageID 60; see also Doc. No. 2-4 (Poffenbarger’s proposed order granting

his motion for a preliminary injunction, including, among other things, providing relief from

punitive action taken against airmen who submitted a religious exemption request to which

Defendants did not dispute the sincerity of the asserted religious beliefs); Doc. No. 26 at PageID

1022.)

Despite the broad relief requested, the issue currently presented is a relatively narrow one.

The issue is not whether the military may administer vaccines or impose a vaccine “mandate.” See

Oklahoma v. Biden, --- F. Supp. 3d ---, No. CIV-21-1136-F, 2021 WL 6126230, at *8 (W.D. Okla.

Dec. 28, 2021) (“The COVID vaccination mandate should be understood against the backdrop of

other military immunization mandates—which date back as far as General George Washington’s

mandate that troops in the Continental Army be inoculated against smallpox. Nine vaccinations

(now ten, with the COVID vaccination mandate) are required for all service members. This

includes statutorily-designated reserve component service members.”).

Similar cases have been filed by other military personnel in other district courts around the

country, challenging the military’s administration of its COVID-19 vaccine mandate and requested

exemptions from it. See, e.g., Air Force Officer, 2022 WL 468799, at *13 (granting plaintiff-

reservist’s motion for preliminary injunction concerning her RFRA and Free Exercise claims;

enjoining defendants from enforcing the military’s COVID-19 vaccine mandate against the

plaintiff and from taking any adverse action against her on the basis of the lawsuit or her request

for religious accommodation); U.S. Navy SEALS 1-26 v. Biden, --- F. Supp. 3d ---, No. 4:21-cv-

01236-O, 2022 WL 34443, at *1 (N.D. Tex. Jan. 3, 2022) (granting preliminary injunction to

military members concerning their RFRA and Free Exercise claims against the military’s

mandatory COVID-19 vaccination policy, determining that “[t]he Navy provides a religious

accommodation process, but by all accounts, it is theater,” and explaining that “[t]he COVID-19

pandemic provides the government no license to abrogate” religious freedom); Navy Seal 1 v.

Austin, --- F. Supp. 3d ---, No. 8:21-cv-2429, 2022 WL 534459 (M.D. Fla. Feb. 18, 2022) (granting

preliminary injunction to military members concerning their RFRA and Free Exercise claims

against the military’s mandatory COVID-19 vaccination policy; permitting them, pending a final

determination on a complete record, to continue to serve without the vaccination and forbidding

any punitive or retaliatory measure against them pending a final judgment in the action).3

A. Preliminary Injunction Standards

“The purpose of a preliminary injunction is merely to preserve the relative positions of the

parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395

(1981). “Given this limited purpose, and given the haste that is often necessary if those positions

are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that

are less formal and evidence that is less complete than in a trial on the merits.” Id. “A party thus

is not required to prove his case in full at a preliminary-injunction hearing, and the findings of fact

and conclusions of law made by a court granting a preliminary injunction are not binding at trial

on the merits.” Id. (internal citation omitted).

“A district court must balance four factors when considering a motion for a preliminary

injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether

the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would

cause substantial harm to others; and (4) whether the public interest would be served by the

issuance of an injunction.” Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th Cir. 2012). “[T]he

harm to the opposing party and the public interest factors merge when the Government is the

opposing party.” Wilson v. Williams, 961 F.3d 829, 845 (6th Cir. 2020).

Plaintiff’s assertion that, “where constitutional rights are infringed upon … , the likelihood

of success factor is dispositive” is too strong (Doc. No. 2 at PageID 53). See, e.g., Roberts v.

Neace, 958 F.3d 409, 416 (6th Cir. 2020) (cited by Plaintiff, yet the court considered all factors

3 The Defendants direct the Court to five additional decisions, arguing that those courts “have declined to grant service

members’ similar motions for preliminary injunctions.” (Doc. No. 22 at PageID 339.) However, none of those cases

are nearly as similar to the case here as the three just identified. Those five additional decisions involved

distinguishable situations where the claims made were different (i.e., not RFRA and/or Free Exercise claims) or the

claims were not yet ripe because the plaintiff’s administrative appeals process was still pending.

and simply stated that “[p]reliminary injunctions in constitutional cases often turn on likelihood of

success on the merits, usually making it unnecessary to dwell on the remaining three factors”);

D.T. v Sumner Cnty. Schs., 942 F.3d 324, 327 (6th Cir. 2019) (to grant a preliminary injunction,

“the existence of an irreparable injury is mandatory”) (emphasis removed). However, the Court

does recognize that, in First Amendment cases, “the crucial inquiry is usually whether the plaintiff

has demonstrated a likelihood of success on the merits” because “the issues of the public interest

and harm to the respective parties largely depend on the constitutionality of the” government

action. Bays, 668 F.3d at 819. And, “a court must not issue a preliminary injunction where the

movant presents no likelihood of merits success.” Wilson, 961 F.3d at 844.

Finally, if a Court does issue a preliminary injunction, then the order must “(A) state the

reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and

not by referring to the complaint or other document—the act or acts restrained or required.” Fed.

R. Civ. P. 65(d)(1).

B. Strong Likelihood of Success on the Merits

Defendants argue that Poffenbarger is unlikely to succeed on the merits of his claims.

(Doc. No. 2 at PageID 338.) Defendants contend that “[t]he challenged vaccine requirement

explicitly contemplates the possibility of a religious accommodation, and the military assesses

such requests under the standards set forth in the” RFRA. (Doc. No. 22 at PageID 338.) They

further argue that the “Air Force’s interest in protecting the health of its service members to carry

out its mission is indisputably compelling, and there is no basis for the Court to conclude that

[Poffenbarger’s] proposed less restrictive alternatives, such as testing and isolation, would protect

the military’s compelling interests as effectively as immunization.” (Id. at PageID 338-39.)

Poffenbarger argues that he has a strong likelihood of success on the merits of his claims.

He asserts that Defendants continue to substantially burden his exercise of religion by requiring

him to comply with the COVID-19 vaccine mandate. (See Doc. No. 2 at PageID 54.) He argues

that Defendants “do so in a manner that is not the least restrictive means of furthering any

compelling governmental interest.” (Id.) Poffenbarger asserts that there are several other less-

restrictive means for the Defendants to further the Air Force’s alleged interests:

Defendants could require (timely and accurate) testing to determine infection and

then take measures accordingly;

Defendants could require temperature checks and/or other screening to determine

infection;

Permit[] Poffenbarger, in the ordinary course of interactions with others, to become

infected with COVID-19 … so as to develop … natural immunity;

Defendants could provide an exemption anyways in that vaccination will not

guarantee immunity … ;

Require isolation where appropriate to keep Lt. Poffenbarger away from those with

the disease;

Place Lt. Poffenbarger in a position and/or Military Occupational Specialty that is

available for remote work or telework, and not in contact with other solidiers;

…[P]rovide[] an exemption to those members [with documented medical and

religious exemption requests];

As a second to last final option, place Lt. Poffenbarger in non-deployable status

and/or assignment to a unit that does not deploy overseas; and/or

As a final option, honorably discharg[e] Lt. Poffenbarger.

(Doc. No. 2 at PageID 56-57.)

The Court finds that, at this stage of the litigation and based on what has been presented,

Poffenbarger has shown a strong likelihood of success on the merits of his claims.

1) Justiciability and application of the RFRA and the First Amendment to the

military

Neither party expressly addressed the justiciability of this action, although the Defendants

emphasize the deference that courts give to the military’s decisions and that judicial review is

“highly constrained.” (Doc. 22 at PageID 349-50.) As an initial matter, the Air Force and other

branches of the military are not exempt from the RFRA or the First Amendment’s application.

The text of the RFRA shows that it is applicable to the military. 42 U.S.C. § 2000bb-1; 42 U.S.C.

§ 2000bb-2(1) (defining “government”); see also Navy Seal 1 v. Biden, --- F. Supp. 3d ---, No.

8:21-cv-2429, 2021 WL 5448970, at *9 (M.D. Fla. Nov. 22, 2021) (“[u]nder 42 U.S.C. § 2000bb-

2(1), RFRA’s restriction applies to action by each ‘branch, department, agency, instrumentality,

and official … of the United States,’ including the armed forces” and “[i]n DoD Instruction

1300.17: Religious Liberty in the Military Services (Sept. 1, 2020), the Department of Defense

incorporates RFRA’s standard to guide accommodating religious practice in the military”).

Additionally, military personnel are not excluded from First Amendment protections, although

application of those protections may differ in a military context from a civilian context. Parker v.

Levy, 417 U.S. 733, 758 (1974) (“[w]hile the members of the military are not excluded from the

protection granted by the First Amendment, the different character of the military community and

of the military mission requires a different application of those protections”); Rostker v. Goldberg,

453 U.S. 57, 67 (1981) (when considering constitutional protections, “the tests and limitations to

be applied may differ because of the military context”). Thus, “[t]he fundamental necessity for

obedience, and the consequent necessity for imposition of discipline, may render permissible

within the military that which would be constitutionally impermissible outside it.” Parker, 417

U.S. at 758.

Here, the Court is addressing the Air Force’s decision to require Poffenbarger to comply

with its COVID-19 vaccine mandate upon denying his request for a religious exemption. The

Sixth Circuit in Harkness adopted the test from Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971)

for determining the reviewability of a particular military decision. Harkness v. Sec’y of the Navy,

858 F.3d 437, 444 (6th Cir. 2017); Bickel v. Delaware Air Nat’l Guard, No. 2:18-cv-119, 2018

WL 2183296, at *6 (S.D. Ohio May 11, 2018) (“[t]he Sixth Circuit explicitly adopted the Mindes

test as the proper framework for determining the justiciability of claims involving internal military

decisions in” Harkness). “[A]n internal military decision is unreviewable unless two initial

requirements are satisfied: (a) an allegation of the deprivation of a constitutional right, or an

allegation that the military has acted in violation of applicable statutes or its own regulations, and

(b) exhaustion of available intraservice corrective measures.” Harkness, 858 F.3d at 444 (internal

quotation marks omitted). “If the plaintiff meets both prerequisites, then four factors must be

weighed to determine justiciability: [1] the nature and strength of the plaintiff’s challenge; [2] the

potential injury to the plaintiff of withholding review; [3] the degree of anticipated interference

with the military function; and [4] the extent to which military expertise or discretion is involved.”

Harkness, 858 F.3d at 444.

Here, both prerequisites are satisfied. Regarding the first prerequisite, Poffenbarger alleges

deprivation of a constitutional right. (Doc. No. 1 at PageID 1, 11.) He also alleges that the Air

Force has acted in violation of its own regulations. (Id. at PageID 6.) Regarding the second

prerequisite, no party argues that Poffenbarger has failed to exhaust his available intraservice

corrective measures, and it appears that he has done so. (Id. at PageID 4-5.) This contrasts with,

for example, the situation in Church v. Biden, No. CV 21-21-2815, 2021 WL 5179215, at *10

(D.D.C. Nov. 8, 2021), where the service member plaintiffs’ appeals of denials for religious

accommodations to the Department of Defense vaccine mandate remained pending, and the service

member plaintiffs had not been disciplined nor separated from the Marine Corps. See also Air

Force Officer, 2022 WL 468799, at *6 (plaintiff Air Force reservist exhausted her available

intraservice corrective measures because she submitted her religious accommodation request and

the Surgeon General of the Air Force ultimately denied her final appeal).

Therefore, the Court must weigh the four Mindes factors set forth above. Regarding the

first factor, Poffenbarger is challenging the Air Force’s administration of its COVID-19

vaccination mandate, including the administration of exemption requests. His challenge involves

weighty protections under the RFRA and the First Amendment. As shown below, the Court finds

that Poffenbarger’s challenge is strong based on the arguments and evidence presented to date.

Regarding the second factor, if the Court withholds review, then Poffenbarger may (continue to)

lose First Amendment freedoms, as well as lose a portion of his livelihood (his career with the Air

Force) and health care benefits for him and his young family. Additionally, he could be negatively

impacted in keeping or obtaining a civilian job through the disciplinary action that the Air Force

could take (e.g., through court-martial). Regarding the third factor, the anticipated interference

with the Air Force’s function is limited. Air Force Officer, 2022 WL 468799, at *7 (“it is

interference that ‘seriously impede[s] the military in the performance of vital duties[ ]’ that

‘militates strongly against [judicial review]’”) (quoting Mindes, 453 F.2d at 201) (alterations in

original). This case (at least currently) involves a single Air Force reservist who would work

approximately one weekend a month for the Air Force if not deployed. Additionally, the fact that

the Air Force is allowing temporary exemptions from the COVID-19 vaccine mandate for non-

religious reasons counsels against finding serious interference. Additionally, although not

necessarily a particularly strong consideration, a very high percentage of the Air Force service

members have received a COVID-19 vaccine.4 See, e.g., Air Force Officer, 2022 WL 468799, at

*7 (“[t]oday, 97.8% of the Air Force (active duty, guard, and Reserve status) is fully vaccinated

against COVID-19”). The Court is also hopeful that further medical breakthroughs will allow

additional vaccines or treatments against COVID-19 to become readily available and that would

4 Of course, there were many months between the time when COVID-19 became a pandemic and when vaccines

against COVID-19 became available.

not be objectionable to Poffenbarger or others on religious grounds. Regarding the fourth factor,

the Court finds that military expertise or discretion is involved in the decision regarding whether

to require compliance with a COVID-19 vaccine mandate or allow an exemption. However, the

particular issues and constitutional questions presented here are not so foreign to those outside the

military as to give the Court serious concern about its ability to decide the case. Mindes, 453 F.2d

at 201-02 (“[c]ourts should defer to the superior knowledge and experience of professionals in

matters such as promotions or orders directly related to specific military functions”); Orloff v.

Willoughby, 345 U.S. 83, 87 (1953) (affirming that duty assignment for military doctors lawfully

inducted into the Army was a matter of military discretion). COVID-19 has affected all of society,

and vaccine mandates (and religious accommodations and challenges to vaccine mandates) are

present outside of a military context.

Thus, the Court finds that the Mindes factors weigh in favor of finding justiciability. Air

Force Officer, 2022 WL 468799, at *8 (concluding that all four of the Mindes factors weighed in

favor of justiciability); U.S. Navy SEALS 1-26, 2022 WL 34443, at *4-8 (applying Mindes test and

determining that plaintiffs’ RFRA and Free Exercise claims against administration of Navy’s

COVID-19 vaccine mandate exemptions are justiciable); see also Navy Seal 1, 2021 WL 5448970,

at *12 (where military service members asserted RFRA and Free Exercise claims challenging the

military’s regulations governing its COVID-19 vaccination requirement, explaining that

“Congress by RFRA purposefully creates and narrowly targets a claim, available in the district

court, for everyone in every branch of government, including the military, to enforce the

fundamental right to free exercise of religion”); Renicker v. Marsh, 640 F. Supp. 244, 246 (N.D.

Ohio 1986) (application of principles from Mindes did not preclude justiciability of case that

involved whether the process afforded to plaintiff former serviceman at his disability claim hearing

conducted by the Army was adequate); Brown v. Glines, 444 U.S. 348, 349 (1980) (ruling on First

Amendment challenge to Air Force regulations that require service members to obtain approval

from their commanders before circulating petitions at Air Force bases). However, as shown in this

Order, the Court will proceed cautiously and consider the deference given to military decisions.

2) RFRA claim

Poffenbarger’s first claim is for violation of the RFRA. (Doc. No. 1 at PageID 9-11.) He

alleges that “Defendants have, and continue, to substantially burden [his] exercise of religion, in

light of their vaccine mandates, along with their refusal to timely process [his] accommodation

request to that requirement (even though this is required by applicable regulation), do so not in

furtherance of a compelling governmental interest, and do so in a manner that is not the least

restrictive means of furthering any compelling government interest.” (Id. at PageID 10.)

a. RFRA requirements

“Congress enacted RFRA in 1993 in order to provide very broad protection for religious

liberty.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014). In fact, “Congress

enacted RFRA in order to provide greater protection for religious exercise than is available under

the First Amendment.” Holt v. Hobbs, 574 U.S. 352, 357 (2015)5; see also Navy Seal 1, 2021 WL

5448970, at *9 (“if a service member’s RFRA claim fails, the service member’s First Amendment

claim necessarily fails”). The RFRA “prohibits the Federal Government from taking any action

that substantially burdens the exercise of religion unless that action constitutes the least restrictive

means of serving a compelling government interest.” Burwell, 573 U.S. at 690-91. More

specifically, the statute states: “Government shall not substantially burden a person’s exercise of

5 “Although Holt involved a claim under RFRA’s sister statute, the Religious Land Use and Institutionalized Persons

Act of 2000 (RLUIPA), RLUIPA mirrors RFRA and the same standards apply to each.” New Doe Child #1 v.

Congress of the U.S., 891 F.3d 578, 587 n.2 (6th Cir. 2018).

religion even if the burden results from a rule of general applicability, except as provided in

subsection (b).” 42 U.S.C. § 2000bb-1(a). Subsection (b) states: “Government may substantially

burden a person’s exercise of religion only if it demonstrates that application of the burden to the

person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Therefore,

analyzing a RFRA claim involves a multi-step process. See New Doe Child #1 v. Congress of the

U.S., 891 F.3d 578, 585 (6th Cir. 2018) (the elements of a RFRA claim are “(1) the plaintiff seeks

to engage in (or avoid engaging in) conduct that constitutes an exercise of religion; (2) the

Government has placed a substantial burden on that plaintiff’s exercise of religion; and (3) the

Government either has no compelling interest in imposing that burden or (4) the Government has

another less restrictive means of achieving its compelling interest”).

First, the plaintiff must demonstrate that a government action substantially burdens the

plaintiff’s free exercise of religion. 42 U.S.C. § 2000bb-1(a); Hobby Lobby, 573 U.S. at 695; Navy

Seal 1, 2021 5448970, at *10. This “trigger[s] RFRA’s strict scrutiny.” Navy Seal 1, 2021 WL

5448970, at *10. “Exercise of religion” for purposes of the RFRA “includes any exercise of

religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§

2000bb-2, 2000cc-5(7)(A).

The plaintiff must show that the religious exercise “is grounded in a sincerely held religious

belief.” Holt, 574 U.S. at 360-61. The conduct at issue must be “based on a religious belief, not

merely a personal, non-religious belief” or some other motivation. New Doe Child #1, 891 F.3d

at 587; see also U.S. v. Barnes, 677 F. App’x 287, 277 (6th Cir. 2017) (rejecting RFRA claim

where ample evidence demonstrated that claimant’s belief about marijuana was primarily a

personal one). “[F]ederal courts have no business addressing [] whether the religious belief

asserted in a RFRA case is reasonable.” Hobby Lobby, 573 U.S. at 724. “Instead, [the court’s]

narrow function in this context is to determine whether the line drawn reflects an honest

conviction.” Id. at 725-26 (internal quotation marks omitted) (finding that, because the

contraceptive mandate forced plaintiff to pay an enormous sum of money if plaintiffs insisted on

following their religious beliefs, the mandate clearly imposed a substantial burden on those

beliefs); see also New Doe Child #1, 891 F.3d at 586-87 (6th Cir. 2018) (“it is not within the

court’s purview to question the reasonableness of” sincerely held religious beliefs “[n]or is it the

court’s role to say that their religious beliefs are mistaken or insubstantial”) (internal quotation

marks omitted).

The plaintiff also must show that the government action “substantially burdened that

exercise of religion.” Holt, 574 U.S. at 361; see also New Doe Child #1, 891 F.3d at 587 (plaintiffs

must show “an actual incompatibility between their religious beliefs and the conduct at issue”).

“The substantial-burden test asks whether the Government is effectively forcing plaintiffs to

choose between engaging in conduct that violates sincerely held religious beliefs and facing a

serious consequence.” New Doe Child #1, 891 F.3d at 589. “[T]he Government substantially

burdens an exercise of religion when it places substantial pressure on an adherent to modify his

behavior and to violate his beliefs or effectively bars his sincere faith-based conduct.” Id. (internal

quotation marks omitted; alterations adopted).

Next, if the plaintiff has demonstrated that the government action substantially burdens his

or her religious exercise, then the defendant must demonstrate that the action (1) furthers a

compelling governmental interest and (2) is the least restrictive means to further that interest. 42

U.S.C. § 2000bb-1(b); Hobby Lobby, 573 U.S. at 695; see also Navy Seal 1, 2021 WL 5448970,

at *9 (“assuming a plaintiff presents prima facie evidence of a substantial burden on a sincerely

held religious exercise, the government bears the burden to prove that the law in question furthers

a compelling governmental interest by the least restrictive means available”). Regarding the first

requirement, the RFRA “requires the Government to demonstrate that the compelling interest test

is satisfied through application of the challenged law to the person—the particular claimant whose

sincere exercise of religion is being substantially burdened.” Hobby Lobby, 573 U.S. at 726

(internal quotation marks omitted). This requires the court “to look beyond broadly formulated

interests and to scrutinize the asserted harm of granting specific exemptions to particular religious

claimants.” Id. at 726-27 (internal quotation marks omitted); see also Navy Seal 1, 2021 WL

5448970, at *9 (same). Regarding the second requirement, “[t]he least-restrictive-means standard

is exceptionally demanding.” Hobby Lobby, 573 U.S. at 728. The defendant must show that it

“lacks other means of achieving its desired goal without imposing a substantial burden on the

exercise of religion by the objecting parties.” Id. (finding that a suggested alternative procedure

would be less restrictive of the plaintiff’s religious liberty and the government had not shown that

the alternative procedure was not a viable alternative).

b. Application

Here, Poffenbarger has demonstrated that government action substantially burdens his free

exercise of religion. Defendants do not dispute that Poffenbarger has sincerely held religious

beliefs about the available COVID-19 vaccines. (See also Doc. No. 1-3.) The Court also finds

that his religious beliefs are being burdened by Defendants’ requirement that he take the vaccine

or face serious consequences. Holt, 574 U.S. at 361 (where sincerity of petitioner’s belief was not

disputed, petitioner’s religious exercise was substantially burdened by department of correction’s

policy requiring him to shave his beard or face serious disciplinary action); Hobby Lobby, 573

U.S. at 720 (plaintiffs had a sincere religious belief that life begins at conception, and requiring

them to arrange for health insurance coverage that covered methods of birth control or face severe

economic consequences substantially burdened their free exercise of religion); Cavin v. Mich.

Dept. of Corrections, 927 F.3d 455, 458-59 (6th Cir. 2019) (department of corrections’ policy

burdened desired religious exercise of prisoner—who practiced Wicca—because it prevented the

group worship that the prisoner sought). There is “an actual incompatibility between

[Poffenbarger’s] religious beliefs and the conduct at issue.” New Doe Child #1, 891 F.3d at 587.

Additionally, through the order Poffenbarger received, the Air Force “places substantial pressure

on an adherent to modify his behavior and to violate his beliefs.” Id. at 589; see also Air Force

Officer, 2022 WL 468799 at *3, 9 (explaining that plaintiff-reservist “faces the choice of

complying with the Air Force’s order to receive a COVID-19 vaccine or violating her religious

beliefs,” and “[v]ery few scenarios paint a bleaker picture than giving up your livelihood in order

to follow your religious beliefs”).

Therefore, the Air Force’s action must fall within the exception set forth in subsection (b)

of 42 U.S.C. § 2000bb-1 to avoid violating the RFRA. Regarding the furtherance-of-a-compelling-

governmental-interest requirement, Defendants assert that the Air Force has a compelling interest

in (1) preventing the spread of the COVID-19 virus among its ranks; and (2) ensuring military

readiness and the health and safety of airmen (Doc. No. 22 at PageID 357). See Roman Catholic

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (“[s]temming the spread of COVID-19 is

unquestionably a compelling interest”); Singh v. McHugh, 185 F. Supp. 3d 201, 222 (D.D.C. 2016)

(finding that military readiness is a compelling government interest); but see BST Holdings, L.L.C.

v Occupational Safety and Health Admin., U.S. Dept. of Labor, 17 F.4th 604, 611 n.10 (5th Cir.

2021) (“society’s interesting in slowing the spread of COVID-19 cannot qualify as compelling

forever”) (internal quotation marks omitted and alteration adopted); Air Force Officer, 2022 WL

468799 at *10 (“[a]t bottom, [d]efendants simply don’t explain why they have a compelling

interest in Plaintiff being vaccinated while so many other Air Force service members are not”)

(emphasis in original). The Court will assume that Defendants’ asserted governmental interests

are compelling with respect to Poffenbarger and within the meaning of the RFRA, and proceed to

the final prong of the RFRA test—the least-restrictive-means requirement. Hobby Lobby, 573

U.S. at 728 (following this procedure).

Defendants have not shown that the Air Force’s action meets the least-restrictive-means

test. The evidence indicates that the Air Force has granted virtually zero exemptions to the

COVID-19 vaccine mandate on religious grounds—none prior to the time that Poffenberger’s final

appeal was denied. Air Force Officer, 2022 WL 468799, at *1 (“[d]espite thousands of requests

for religious exemption, the Air Force hadn’t granted a single one of them when [p]laintiff filed

her Complaint”; “as of January 31, 2022, the Air Force had yet to approve a single religious

exemption,” and “the Air Force granted these nine exemptions in the” following two weeks). At

the same time, the Air Force has granted thousands of exemptions to the COVID-19 vaccine

mandate on non-religious grounds. (Doc. No. 22-16 at PageID 885; Doc. No. 22-19 at PageID

985; Doc. No. 26-1.) This supports that less restrictive means of furthering the Air Force’s

interests are being provided (even if only on a “temporary” basis) on non-religious grounds. And,

the Defendants have not shown why such less restrictive means cannot likewise be provided to

Poffenbarger. See Hobby Lobby, 573 U.S. at 730 (defendant governmental entity had already

provided an accommodation for others who had objections to the governmental action). As the

court in Air Force Officer recently explained in a very similar case:

No matter whether one service member is unvaccinated for a medical reason and

another unvaccinated for a religious reason, one thing remains the same for both of

these service members—they’re both unvaccinated. In other words, both of these

service members pose a similar hazard to Defendants’ compelling interest in

stemming the spread of COVID-19 within the military.

Air Force Officer, 2022 WL 468799, at *11 (internal quotations omitted); see also U.S. Navy

SEALS 1-26, 2022 WL 34443, at *7 (finding that the Navy’s “vaccine mandate fails strict scrutiny”

because it “treats comparable secular activity (e.g., medical exemptions) more favorably than

religious activity”).

The current evidence appears to support Poffenbarger’s assertion that the Air Force is

systematically denying religious exemptions. Air Force Officer, 2022 WL 468799, at *1 n.1, 10

(“[w]ith such a marked record disfavoring religious accommodation requests, the Court easily

finds that the Air Force’s process to protect religious rights is both illusory and insincere” and

finding that, “[a]lthough the Air Force claims to provide a religious accommodation process, it

proved to be nothing more than a quixotic quest for [p]laintiff because it was by all accounts, …

theater”) (internal quotation marks omitted). The Air Force has granted approximately ten

temporary exemptions on religious grounds (all after this case was filed), while allowing thousands

of temporary exemptions on non-religious grounds. And, the circumstances of the approximately

ten religious exemptions is not clear.6 Concerning too—and supporting that there has been a

double standard between assessing medical or administrative accommodation requests on the one

hand and religious accommodation requests on the other—is that the requirement for using the

Religious Resolution Team (which, again, is “a multidisciplinary team that advises commanders

regarding resolution of religious liberty matters”) has been waived by the Air Force Reserve

Command for purposes of assessing religious accommodation requests for the COVID-19 vaccine

mandate. (Doc. No. 22-13 at PageID 747; Doc. No. 22 at PageID 343.) Even if the Air Force has

a valid reason for doing so, this shows that the Air Force has not been following its typical policy

or procedure for assessing religious accommodations.

6 Poffenbarger alleges, on information and belief, that the religious exemptions were only given to members who were

at the end of their terms of service with the military. (Doc. No. 26 at PageID 1027.) This allegation was at least

generally supported by Defendants’ counsel’s statements at the preliminary injunction hearing.

Additionally, in their Opposition, the Defendants address the merits of many, if not all, of

Poffenbarger’s proposed less restrictive means. (See Doc. No. 22 at PageID 359-66.) For example,

regarding his proposal to be isolated, Defendants argue that, because Poffenbarger “must be trained

and then work as an intelligence officer, he would routinely handle classified materials, access

classified systems, and discuss classified information with his colleagues,” yet, “due to security

protocols, such activities can only be done in secured facilities” and he would “be in contact with

around a dozen people during his average workday.” (Id.) However, Poffenbarger proposes other

means for the Air Force to further its interests without placing substantial pressure on him to violate

his religious beliefs: honorably discharge him.7 (Doc. No. 2 at PageID 57.) And, Defendants

failed to show that this is not a viable alternative. Hobby Lobby, 573 U.S. at 728.

Unlike the Air Force’s mandate for other vaccines (to which Poffenbarger willingly

complied), Poffenbarger could not have known about the COVID-19 vaccine mandate when he

chose to join the reserves in 2014.8 In response to Poffenbarger’s contention that honorably

discharging him would be a lesser restrictive means of furthering the Air Force’s interests,

Defendants argue that Poffenbarger “does not explain what burden the current Air Force policy of

involuntarily reassigning him to the Individual Ready Reserve to complete his service obligation

would place on his exercise of religion that would be lessened through discharge,” and

“reassignment to the Individual Ready Reserve is a less significant step than discharge because it

would allow Plaintiff to remain a part of the Air Force and return to a participating reserve status

should he choose to vaccinate on a future date.” (Doc. No. 22 at PageID 362-63 (internal quotation

7 The Court does not make any findings regarding whether any of Poffenbarger’s other proposals are, in fact, less

restrictive means of furthering the alleged compelling government interests.

8 Defendants’ focus (see, e.g., Doc. No. 22 at PageID 340-41, 346-47) on Poffenbarger’s willingness to receive these

other vaccines, such as for polio and tetanus, is concerning because it tends to demonstrate a lack of understanding of

the basis for Poffenbarger’s religious objection to the available COVID-19 vaccines—which, therefore, may have

affected the decision to deny his religious accommodation request.

marks omitted); see also, e.g., Doc. No. 22-18 at PageID 975 (explaining current policy).)

However, Defendants ignore more serious action that the Air Force has threatened in an

effort to get Poffenbarger to comply with its order to take a COVID-19 vaccine, despite their

current policy. The December 10, 2021 order that Poffenbarger received stated: “Failure to

comply with this lawful order may result in administrative and/or punitive action for Failing to

Obey an Order under Article 92, Uniform Code of Military Justice.” (Doc. No. 1-6.) Pursuant to

that article, “Any person subject to [the Uniform Code of Military Justice] who (1) violates or fails

to obey any lawful general order or regulation; (2) having knowledge of any other lawful order

issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or (3)

is derelict in the performance of his duties; shall be punished as a court-martial may direct.” 10

U.S.C. § 892 (emphasis added). Both the January 3, 2022 Letter of Reprimand and the January

10, 2022 Letter of Reprimand that Poffenbarger received stated: “It has come to my attention you

have failed to follow a lawful order to get the Pfizer COVID-19 vaccine. … This is a violation of

Article 92, Uniform Code of Military Justice.” (Doc. No. 11-1 at PageID 294 (1/3/22 Letter of

Reprimand); Doc. No. 15-1 (1/10/22 Letter of Reprimand) at PageID 314.) Additionally, counsel

for Defendants acknowledged during the preliminary injunction hearing that the Air Force could

court-martial Poffenbarger. (See also Doc. No. 22 at PageID 344 (“Air Force commanders have

a variety of administrative and disciplinary actions that may be taken against service members who

do not have an exemption and who refuse the COVID-19 vaccine”) (citing the Declaration of

Colonel Elizabeth Hernandez).) The Declaration of Colonel Hernandez states: “Possible

sentences in a court-martial include confinement, reduction in grade (enlisted only), and punitive

discharges.” (Doc. No. 22-14 (Hernandez Decl.) at PageID 818.) Punitive discharges include

dishonorable discharges or the equivalent thereof. (Id.)

Honorable discharge would be, to use Defendants’ phrase, a “less significant step” than a

punitive discharge or being court-martialed. (Doc. No. 22 at PageID 362-63.) Contrary to the

Defendants’ assertion, there is a “basis for the Court to conclude that [Poffenbarger’s] proposed

less restrictive alternative[] [of honorably discharging him] … would protect the military’s

compelling interests as effectively as immunization.” (Doc. No. 22 at PageID 338-39.) And,

regardless of whether Poffenbarger wants to be honorably discharged (it is clear he does not9), and

regardless of whether the Air Force currently plans10 or wants to do so, for purposes of the Court’s

current analysis, honorably discharging Poffenbarger would be a means to further, in Defendants’

words, “the military’s interests in minimizing the risk of service member illnesses and stemming

the spread of COVID-19 within the military to ensure military readiness” (Doc. No. 22 at PageID

359).

This provides additional support that the Air Force’s substantial burden on Poffenbarger’s

exercise of religion through its enforcement of the COVID-19 vaccine mandate is not the least

restrictive means of furthering its asserted compelling interests. Burwell, 573 U.S. at 690-91 (the

RFRA “prohibits the Federal Government from taking any action that substantially burdens the

exercise of religion unless that action constitutes the least restrictive means of serving a compelling

government interest”); 42 U.S.C. § 2000bb-1(b).

3) First Amendment claim

Poffenbarger’s second claim is for violation of the First Amendment of the United States

Constitution. (Doc. No. 1 at PageID 11.) He alleges that “Defendants’ actions …, including

9 Poffenbarger explained that honorable discharge would be a “final option.” (Doc. No. 2 at PageID 56-57.)

10 Prefacing that he did not “want to get ahead of the fact,” Defendants’ counsel explained at the preliminary injunction

hearing that, while their ultimate hope is that Poffenbarger will get the COVID-19 vaccine (whether because he has

changed his mind or another version of the vaccine becomes available that would not conflict with his sincerely-held

religious beliefs), it would be “fair to assume” that the Air Force’s current plan for Poffenbarger is to transfer him to

the IRR until the end of his terms of service, then he would be separated with an honorable discharge.

hostility towards religious beliefs, as well as the creation of secular exemptions, constitute a

violation of the First Amendment’s Free Exercise Clause.” (Id.)

An analysis similar to the RFRA analysis is conducted with respect to this Free Exercise

claim in this case. Air Force Officer, 2022 WL 468799, at *11 (determining that, “[f]or the same

reasons [p]laintiff is likely to succeed on her RFRA claim, she is also likely to prevail on her First

Amendment claim”). In fact, Defendants assert that if Poffenbarger “prevails on his RFRA claim

there is no need to reach his separate First Amendment theory, as the Court would already have

concluded that the military’s vaccination requirement is not narrowly tailored to serve a

compelling government interest” or, “[c]onversely, if the Government prevails under RFRA, it

would necessarily prevail under Plaintiff’s First Amendment theory as well.” (Doc. No. 22 at

PageID 366-67.)

a. Framework for Free Exercise Clause claims

“The Free Exercise Clause protects religious observers against unequal treatment.”

Monclova Christian Acad. v. Toledo-Lucas Cnty. Health Dep’t, 984 F.3d 477, 479 (6th Cir. 2020);

see also U.S. CONST. amend. I (“Congress shall make no law … prohibiting the free exercise” of

religion). It also “protects against indirect coercion or penalties on the free exercise of religion.”

Dahl v. Bd. of Trs. of W. Mich. Univ., 15 F.4th 728, 732 (6th Cir. 2021) (internal quotation marks

omitted). “[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to

others in order to merit First Amendment protection.” Fulton v. City of Phila., 141 S. Ct. 1868,

1876 (2021) (internal quotation marks omitted); see also Roberts v. Neace, 958 F.3d 409, 416 (6th

Cir. 2020) (“the Free Exercise Clause does not protect sympathetic religious practices alone” and

“that’s exactly what the federal courts are not to judge—how individuals comply with their own

faith as they see it”).

To prevail on a Free Exercise claim, “plaintiffs must show that defendants burdened their

religious exercise and that defendants’ conduct cannot withstand the appropriate level of scrutiny.”

Dahl, 15 F.4th at 731. In Dahl, the Sixth Circuit found that the defendant “University’s failure to

grant religious exemptions to plaintiffs burdened their free exercise rights. The University put

plaintiffs to the choice: get vaccinated or stop fully participating in intercollegiate sports.” Id. at

732.

If a plaintiff shows that the defendant burdened his or her religious exercise, then the court

must consider the type of scrutiny to apply. “Of course, not every burden on the free exercise of

religion is unconstitutional.” Dahl, 15 F.4th at 733. “A neutral law of general applicability need

not be justified by a compelling governmental interest even if the law incidentally burdens

religious practices.” Id. (internal quotation marks omitted). “But a law that is not neutral and

generally applicable must undergo the most rigorous of scrutiny.” Id. (internal quotation marks

omitted).

A law “lacks general applicability if it prohibits religious conduct while permitting secular

conduct that undermines the government’s asserted interests in a similar way.” Fulton, 141 S. Ct.

at 1877. “[A] policy that provides a ‘mechanism for individualized exemptions’ is not generally

applicable.” Dahl, 15 F.4th at 733 (quoting Fulton, 141 S. Ct. at 1877). “Accordingly, where a

state extends discretionary exemptions to a policy, it must grant exemptions for cases of ‘religious

hardship’ or present compelling reasons not to do so.” Id.

“Neutral” in this context means that a law or regulation both does not distinguish among

religions and does not distinguish between religious and non-religious. Hartmann v. Stone, 68

F.3d 973, 978 (6th Cir. 1995). “A double standard is not a neutral standard.” Ward v. Polite, 667

F.3d 727, 739-40 (6th Cir. 2012); see also Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021)

(“government regulations are not neutral and generally applicable … whenever they treat any

comparable secular activity more favorably than religious exercise”).

If the law or regulation is not neutral and generally applicable, then strict scrutiny is

triggered. Tandon, 141 S. Ct. at 1296. “[T]he government has the burden to establish that the

challenged law satisfies strict scrutiny.” Id. “A government policy can survive strict scrutiny only

if it advances interests of the highest order and is narrowly tailored to achieve those interests.”

Fulton, 141 S. Ct. at 1881 (internal quotation marks omitted). “[N]arrow tailoring requires the

government to show that measures less strictive of the First Amendment activity could not address

its interest.” Tandon, 141 S. Ct. at 1296-97. “[S]o long as the government can achieve its interests

in a manner that does not burden religion, it must do so.” Fulton, 141 S. Ct. at 1881.

b. Application

Poffenbarger has shown that Defendants burdened his religious exercise, as shown above

in the analysis of his RFRA claim. Additionally, the Air Force’s COVID-19 vaccine mandate

policy is subject to strict scrutiny because it is not neutral and generally applicable. Dahl, 15 F.4th

at 734 (“Because the University’s policy is not neutral and generally applicable, we analyze the

policy through the lens of what has come to be known as strict scrutiny”) (internal quotation marks

omitted). It provides a mechanism for individualized exemptions. See Dahl, 15 F.4th at 733 (a

policy that said “all student-athletes must provide proof of at least one dose of a COVID-19 vaccine

to maintain full involvement in the athletic department,” “[b]ut medical or religious exemptions

and accommodations will be considered on an individual basis,” was not generally applicable).

And, it distinguishes between religious and non-religious exemptions. Ward, 667 F.3d at 739-40

(explaining that “[w]hat poses a problem is not the adoption of an anti-discrimination policy [by

defendant]; it is the implementation policy, permitting secular exemptions but not religious ones

and failing to apply the policy in an even-handed, much less a faith-neutral, manner to” plaintiff).

This determination aligns with other district courts that have addressed the issue regarding the

military’s COVID-19 vaccine mandate policy. See, e.g., Air Force Officer, 2022 WL 468799, at

*12 (Air Force “Defendants’ COVID-19 vaccination requirement is neither neutral towards

religion nor generally applicable”); U.S. Navy SEALS 1-26, 2022 WL 34443, at *11 (determining

that the Navy’s mandate is not neutral and generally applicable; “by accepting individual

applications for exemptions, the law invites an individualized assessment of the reasons why a

servicemember is not vaccinated” and “the ‘comparable secular activity’ includes refusing the

vaccine for medical reasons or participation in a clinical trial”)

Regarding the application of strict scrutiny, according to Dahl, the question “‘is not

whether the [Air Force] has a compelling interest in enforcing its vaccine policies generally, but

whether it has such an interest in denying an exception’ to plaintiffs, and whether its conduct is

narrowly tailored to achieve that interest.” Dahl, 15 F.4th at 735 (quoting Fulton, 141 S. Ct. at

1881) (alteration adopted). As in Fulton where the city “offer[ed] no compelling reason why it

has a particular interest in denying an exception to [plaintiff] while making them available to

others,” the Air Force offers no compelling reason why it has a particular interest in denying a

temporary exemption to Poffenbarger while granting one for others who, for example, are allergic

to the components of the vaccine. Fulton, 141 S. Ct. at 1881-82 (making this determination despite

finding that the city’s asserted interests were important goals); see also Maryville Baptist Church,

Inc. v. Beshear, 957 F.3d 610, 614-15 (6th Cir. 2020) (“[w]e don’t doubt the Governor’s sincerity

in trying to do his level best to lessen the spread of the virus or his authority to protect the

Commonwealth’s citizens,” “[a]nd we agree that no one, whether a person of faith or not, has a

right to expose the community … to communicable disease,” “[b]ut restrictions inexplicably

applied to one group and exempted from another do little to further these goals and do much to

burden religious freedom”) (internal quotation marks omitted). Additionally, for the same reasons

explained above regarding the failure of the least-restrictive-means test for the RFRA claim, the

narrow tailoring test for the Free Exercise claim fails here. Fulton, 141 S. Ct. at 1881 (“so long as

the government can achieve its interests in a manner that does not burden religion, it must do so”).

Thus, Poffenbarger is likely to succeed on his Free Exercise claim too.

Finally, throughout their Opposition brief, Defendants (rightfully) emphasize that courts

typically give deference to the military. The Sixth Circuit has explained that, in a Free Exercise

analysis, this consideration of military deference “stands as a separate option open to the military

to justify its regulation.” Hartmann, 68 F.3d at 983 n.7 (involving Free Exercise challenge to

Army regulation that was not neutral and generally applicable). When a court “conclude[s] that

the regulation would fail the normal constitutional test,” it “still must determine whether, in the

face of what is normally a constitutional violation, the court must defer to military judgment.” Id.

As shown in the justiciability section11 above, the Court recognizes that the military is a

“specialized society separate from civilian society” and “must insist upon a respect for duty and a

discipline without counterpart in civilian life in order to prepare for and perform its vital role.”

Goldman v. Weinberger, 475 U.S. 503, 506-07 (1986) (internal citation and quotation marks

omitted). Although “Congress overruled the result reached in Goldman by statute,” courts still

recognize deference to the military. S. Rep. No. 103-111, reprinted in 1993 U.S.C.C.A.N. 1892,

1901 (1993) (Senate report on RFRA explaining that “the courts have always extended to military

authorities significant deference in effectuating” the military’s interest in maintaining good order,

discipline, and security, and “[t]he committee intends and expects that such deference will continue

under this bill”). The Supreme Court has explained that courts “give great deference to the

11 The Sixth Circuit decided Hartmann before it decided Harkness, which adopted the Mindes framework for

determining the reviewability of a particular military decision. See Harkness, 858 F.3d at 443 (recognizing “deference

to the unique role of the military in our constitutional structure” as one justification for the general reluctance of courts

“to review claims involving military duty assignments”).

professional judgment of military authorities concerning the relative importance of a particular

military interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 25 (2008) (holding that,

where the Navy’s most senior officers underscored the threat posed by enemy submarines and the

need for extensive sonar training to counter this threat, plaintiffs who had claimed that the sonar

was causing serious injuries to some marine mammals were not entitled to a preliminary injunction

restricting the training); see also Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (“[i]t is difficult to

conceive of an area of governmental activity in which the courts have less competence” than “[t]he

complex subtle, and professional decisions as to the composition, training, equipping, and control

of a military force”); Rostker, 453 U.S. at 66 (“[t]he operation of a healthy deference to legislative

and executive judgments in the area of military affairs is evident in several” decisions of the

Supreme Court).

However, “[t]hese aspects of military life do not, of course, render entirely nugatory in the

military context the guarantees of the First Amendment.” Goldman, 475 U.S. at 507; Gilligan,

413 U.S. at 11-12 (“we neither hold nor imply that the conduct of [a branch of the military] is

always beyond judicial review or that there may not be accountability in a judicial forum for

violations of law for specific unlawful conduct by military personnel, whether by way of damages

or injunctive relief”). “Clearly the courts must grant the military wide latitude in its operations,”

yet “[n]onetheless, some First Amendment protection still exists.” Hartmann, 68 F.3d at 984

(citing Goldman, 475 U.S. at 507). Additionally, First Amendment guarantees have not been

abolished because of, or stayed during, the COVID-19 pandemic. Roman Catholic Diocese of

Brooklyn, 141 S. Ct. at 68 (“even in a pandemic, the Constitution cannot be put away and

forgotten”).

The issue is “whether in light of traditional deference granted to the military by the courts

they have nonetheless managed to cross the line separating the constitutional from the

unconstitutional.” Hartmann, 68 F.3d at 984. The Court believes that, given the issue and

evidence presented as set forth above, there is a sufficient showing at this stage that the Defendants

have nonetheless crossed that line. Defendants essentially want “the Court to accord a degree of

deference that is tantamount to unquestioning acceptance, which is not the proper function of a

court in a RFRA case” or a First Amendment case. Singh, 185 F. Supp. 3d at 221-22 (explaining

that, “while the [c]ourt must credit the Army’s assertions and give due respect to its articulation of

important military interests,” the court “must consider whether an exception is required under the

strict scrutiny test, and hold defendants to their burden of demonstrating that the denial of the

limited accommodation in this case is the least restrictive means to advance the Army’s compelling

interest”); see also Hartmann, 68 F.3d at 984 (finding that the military had crossed the line into

unconstitutionality, despite the deference granted to the military, in a First Amendment free

exercise challenge to military regulation).

C. Irreparable Injury

Regarding the second factor in the balancing test when considering a motion for a

preliminary injunction, the Court finds that Poffenbarger has shown that he would suffer

irreparable injury absent the injunction. Generally, injury is irreparable if it cannot be fully

compensable by monetary damages. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke

Corp., 511 F.3d 535, 550 (6th Cir. 2007). “[A]n injury is not fully compensable by money

damages if the nature of the plaintiff’s loss would make the damages difficult to calculate.” Id.

Much of the alleged harm to Poffenbarger is not irreparable. See Hartikka v. United States,

754 F.2d 1516, 1518 (9th Cir. 1985) (“assertions of loss of income, loss of retirement and

relocation pay, and damage to his reputation resulting from the stigma attaching to a less than

honorable discharge” are insufficient to show irreparable harm); Chilcott v. Orr, 747 F.2d 29, 33

(1st Cir. 1984) (“post-discharge remedies are available in the Air Force that could result in

[plaintiff’s] discharge being upgraded to honorable”); Reinhard v. Johnson, 209 F. Supp. 3d 207,

221 (D.D.C. 2016) (plaintiff service member could “be made whole by being reinstated and

receiving back pay if he eventually prevails on his claims”); Church, 2021 WL 5179215, at *17

(“even if the Service Member Plaintiffs did ultimately face some form of adverse employment

action, like military discharge or a delayed promotion, the weight of authority indicates that such

employment-based harm is not irreparable”).

However, it is firmly established that “[t]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable harm.” Roman Catholic Diocese

of Brooklyn, 141 S. Ct. at 67; Dahl, 15 F.4th at 736 (“[e]nforcement of the University’s policy

likely would deprive plaintiffs of their First Amendment rights, an irreparable injury”). This

principle also applies to a violation of rights under the RFRA. See Opulent Life Church v. City of

Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012) (applying principle to violation of RLUIPA

rights “because RLUIPA enforces First Amendment freedoms, and the statute requires courts to

construe it broadly to protect religious exercise”); New Doe Child #1, 891 F.3d at 587 n.2

(explaining that RLUIPA mirrors RFRA). As shown above in analyzing the likelihood of success

on the merits of Poffenbarger’s claims, Defendants’ actions with respect to Poffenbarger have not

been justified, and he has suffered the loss of First Amendment freedoms. See Air Force Officer,

2022 WL 468799, at *12 (since plaintiff’s religious accommodation request was ultimately denied

and essentially infringed upon the free exercise of her religion, plaintiff suffered an irreparable

injury); U.S. Navy SEALS 1-26, 2022 WL 34443, at *13 (“[t]he crisis of conscience imposed by

the mandate is itself an irreparable harm”).

D. Substantial Harm to Others & Public Interest

As referenced above, the third and fourth factors to consider for a preliminary injunction

motion merge when the Government is the party opposing injunctive relief. Wilson, 961 F.3d at

845. Defendants argue that “the entry of an injunction granting Plaintiff’s and thousands of other

religious exemption requests and imposing judicial supervision over the Air Force’s exemption

process would indisputably harm the Air Force, its vital mission, the national security of the United

States, and the public interest.” (Doc. No. 22 at PageID 339.) However, as shown below, the

Court is not granting such a broad injunction.

The Court finds that the third and fourth factors weigh in favor of issuing limited injunctive

relief. This case involves the clash of weighty public interests. “[I]t is always in the public interest

to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor

Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994); Dahl, 15 F.4th at 736 (same). The public

also has an interest in national defense, which includes ensuring military readiness. Winter, 555

U.S. at 24. Needless to say, the public’s interest in national defense is very strong. However, the

Court does not believe that the limited scope of this case would cause substantial harm to the Air

Force or its ability to protect the nation’s citizenry. Air Force Officer, 2022 WL 468799, at *12

(“[p]laintiff’s religious-based refusal to take a COVID-19 vaccine simply isn’t going to halt a

nearly fully vaccinated Air Force’s mission to provide a ready national defense”). And, the

Supreme Court has recognized that, “[o]f course, military interests do not always trump other

considerations, and [the Court has] not held that they do.” Winter, 555 U.S. at 26; see also Roman

Catholic Diocese of Brooklyn, 141 S. Ct. at 68 (“even in a pandemic, the Constitution cannot be

put away and forgotten”).

E. Scope of Relief

“Crafting a preliminary injunction is an exercise of discretion and judgment, often

dependent as much on the equities of a given case as the substance of the legal issues it presents.”

Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017). “The purpose of such

interim equitable relief is not to conclusively determine the rights of the parties, but to balance the

equities as the litigation moves forward.” Id. (internal citation omitted). “In the course of doing

so, a court need not grant the total relief sought by the applicant but may mold its decree to meet

the exigencies of the particular case.” Id. (internal quotation marks omitted).

As referenced above, Poffenbarger requests a preliminary injunction, among other things,

“granting his religious exemption”; “requiring Defendants to comply with the federal RFRA both

as to Poffenbarger and more broadly to the other airmen”; ceasing Defendants’ alleged illegal

discrimination against him; “grant[ing] the religious accommodation request to any other airman,

who has documented a sincerely held religious belief, from Defendants’ vaccination

requirements”; enjoining Defendants “from their policies and practices of [allegedly] engaging in

hostility toward religion”; and, “[t]o the extent Defendants have taken punitive action against any

airman from September 1, 2021 to the present … [who] submitted a religious accommodation

request from Defendants’ vaccination requirements, and to whom the Defendants’ confirmed (or

did not dispute) the sincerity of the belief at issue, … provid[ing] full and complete relief to such

persons, including restoration to active duty (or active reserve duty, as the case may be), record

expungement, and the restoration of pay and allowances.” (See Doc. No. 2 at PageID 44; Doc.

No. 2-4; Doc. No. 26 at PageID 1022, 1038-39.)

However, based on all of the considerations and the purpose of preliminary injunctive

relief, the Court will only enter a relatively limited preliminary injunction and one that only applies

to Poffenbarger. Univ. of Texas, 451 U.S. at 395 (“[t]he purpose of a preliminary injunction is

merely to preserve the relative positions of the parties until a trial on the merits can be held”).

Narrower injunctive relief is especially appropriate here considering the deference given to

military authorities concerning the importance of a particular military interest, the significant

public interest in ensuring a strong national defense, and the potential for a wide array of bases for

a religious accommodation request. Winter, 555 U.S. at 25. Poffenbarger cites Califano v.

Yamasaki, 442 U.S. 682 (1978) to support his request for a nationwide preliminary injunction;

however, in that case the Supreme Court determined that class certification—of a nationwide

class—was permissible. Califano, 442 U.S. at 702-03. This Court has not determined that class

certification—of a nationwide class or otherwise—is appropriate. Air Force Officer, 2022 WL

468799 at *4 (limiting preliminary injunctive relief to the named plaintiff; plaintiff “hasn’t made

any attempt to bring these [other] service members into this lawsuit by way of joinder or a class

action” and finding that “[p]laintiff’s actions when considered against the applicable law simply

don’t warrant a nationwide injunction, especially considering she asks the Court to enjoin our

entire military force”); see also Trump v. Hawaii, 138 S.Ct. 2392, 2425 (2018) (Thomas, J.,

concurring) (expressing concerns with “universal injunctions,” which “prohibit the Government

from enforcing a policy with respect to anyone, including nonparties”). In fact, Poffenbarger

recognizes in the Motion that “each of these [religious accommodation] requests necessarily

depends on the facts and circumstances of each request.” (Doc. No. 2 at PageID 60; see also Doc.

No. 22-13 at PageID 745 (“Not all religious accommodation requests are the same”)).)

III. CONCLUSION

Having considered the factors, the Court finds that a preliminary injunction should issue.

However, the Court will not grant much of what Poffenbarger has requested for preliminary

injunctive relief, either because the requested relief fails to correspond with the purpose of a

preliminary injunction or because Poffenbarger has not made a sufficient showing to grant such

relief or that such relief would be appropriate under the circumstances presented. Univ. of Texas,

451 U.S. at 395 (“[t]he purpose of a preliminary injunction is merely to preserve the relative

positions of the parties until a trial on the merits can be held”).

Federal Rule of Civil Procedure 65(c) sets forth a security requirement. Fed. R. Civ. P.

65(c) (“The court may issue a … temporary restraining order only if the movant gives security in

an amount that the court considers proper to pay the costs and damages sustained by any party

found to have been wrongfully enjoined or restrained”). Here, neither party raised the issue, and

the Court finds that no security is required. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171,

1176 (6th Cir. 1995) (“[w]hile we recognize that the language of Rule 65(c) appears to be

mandatory, and that many circuits have so interpreted it, the rule in our circuit has long been that

the district court possesses discretion over whether to require the posting of security”); NACCO

Materials Handling Grp., Inc. v. Toyota Materials Handling USA, Inc., 246 F. App’x 929, 952–

53 (6th Cir. 2007) (“[c]ontrary to the strong language of Rule 65(c), this Court has found that a

court has no mandatory duty to impose a bond as a condition for issuance of injunctive relief,” but

“a district court errs when it fails to expressly consider the question of requiring a bond when the

issue has been raised”) (internal quotation marks omitted; alterations adopted); RECO Equip., Inc.

v. Jeffrey S. Wilson, No. 20-4312, 2021 WL 5013816, at *5 (6th Cir. Oct. 28, 2021).

The Court GRANTS, IN PART, Plaintiff’s Motion for Preliminary Injunction (within

Doc. No. 2). The Court ORDERS the following pending further order:

A. Defendants, as well as any persons acting in concert with them, are enjoined and

restrained from taking any further adverse action against Poffenbarger because of

his refusal to get vaccinated for COVID-19 due to his religious beliefs, including

that Defendants are prohibited from involuntarily transferring/reassigning

Poffenbarger to the Individual Ready Reserve and from allowing any other adverse

action that stems from the adverse actions already taken (e.g., loss of health care

benefits). Although the Court is unaware of any additional adverse action taken

against Poffenbarger since January 24, 2022 (or even after January 10, 2022),

“further adverse action” shall include any adverse action that had not been taken

as of the time that the Court issued its January 24, 2022 Order (Doc. No. 19); thus,

Defendants are not required to revoke the January 10, 2022 Letter of Reprimand,

remove Poffenbarger from “No Pay / No Points” status, or allow him to conduct

any military work at Wright-Patterson Air Force Base.

B. Defendants, as well as any persons acting in concert with them, are enjoined and

restrained from taking any adverse action against Poffenbarger on the basis of this

lawsuit or his request for religious accommodation from the COVID-19 vaccine;

C. Defendants, as well as any persons acting in concert with them, must comply with

the RFRA with respect to Poffenbarger’s request for exemption from its COVID-

19 vaccine mandate policy; and

D. In accordance with Federal Rule of Civil Procedure 65(d)(2), this Order binds the

following who receive actual notice of it by personal service or otherwise: the

parties; the parties’ officers, agents, servants, employees, and attorneys; and other

persons who are in active concert or participation with the parties or the parties’

officers, agents, servants, employees, and attorneys.

DONE and ORDERED in Dayton, Ohio, this Monday, February 28, 2022.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE