Doster v. Secretary of the Airforce

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

HUNTER DOSTER, et. al., 5 Case No. 1:22-cv-84

Plaintiffs, : Judge Matthew W. McFarland

v

Hon. FRANK KENDALL, et. al.,

Defendants.

ORDER REGARDING PENDING MOTIONS (Docs. 21, 35, 52, 53, 54)

This matter is before the Court on several pending motions, including Plaintiffs’

Motion for Class Certification (Doc. 21), Defendants’ Motion to Sever (Doc. 35), Proposed

Intervenors’ Motion to Intervene (Doc. 52), Proposed Intervenors’ Motion for a

Preliminary Injunction (Doc. 53), and Emergency Motion for a Temporary Restraining

Order by Proposed Intervenors Johnathan Oberg and Johnathan Nipp (Doc. 54). All

motions are fully briefed and ripe for review. The Court's disposition of the Motion for

Class Certification resolves these pending motions.!_ As explained below, Plaintiffs’

Motion for Class Certification is GRANTED.

BACKGROUND

Plaintiffs in this action are United States Air Force servicemen. Plaintiffs brought

this case, on behalf of themselves and those similarly situated, against multiple Air Force

superiors in their official capacity, including, but not limited to, the Secretary of the Air

1 This Order does not have any effect on Defendants’ pending Motion to Dismiss (Doc. 51).

Force and the Surgeon General of the Air Force, as well as the United States of America

(collectively, “Defendants”). They seek redress for “the systematic efforts of the

Defendants, and those who report to them, to flagrantly violate” the Religious Freedom

and Restoration Act (“RFRA”) and the Free Exercise Clause of the First Amendment by

requiring all Airmen to obtain the COVID-19 vaccination without granting religious

accommodation requests for those who oppose receiving the vaccine due to their

sincerely held religious beliefs. (Verified Complaint (“Ver. Compl.”), Doc. 1, Pg. ID 1.)

This Court granted in part Plaintiffs’ Motion for a Preliminary Injunction (Doc. 13) on

March 31, 2022. The Court ordered the following:

1. Defendants, as well as any persons acting in concert with Defendants, are

enjoined and restrained from taking any disciplinary or separation

measures against the Plaintiffs named in this action for their refusal to get

vaccinated for COVID-19 due to their sincerely held religious beliefs. Such

disciplinary or separation measures include, but are not limited to, "adverse

administrative actions, non-judicial punishment, administration

demotions, administrative discharges, and courts-martial." (Dec. of Col.

Hernandez, Doc. 27-14, Pg. ID 1941);

2. Defendants, as well as any person acting in concert with Defendants, are

enjoined and restrained from taking any adverse action against Plaintiffs

on the basis of this lawsuit or their request for religious accommodation

from the COVID-19 vaccinef[.]

(Order Granting in Part and Denying in Part Plaintiffs’ Motion for Preliminary Injunction

and Issuing a Preliminary Injunction, Doc. 47, Pg. ID 3203-04.)

As of June 6, 2022, the Air Force had received 9,062 religious accommodation

requests, granting 86 of those requests while denying 6,343 requests. (DAF COVID-19

Statistics - June 7, 2022, https:/ /www.af.mil/ News/ Article-

Display / Article/3055214/ daf-covid-19-statistics-june-7-2022/ (last visited June 30,

2022.)) Following such denials, the Air Force had received 3,837 appeals from Airmen

whose initial religious accommodation requests were denied. (Id.) As of June 6, 2022, the

Air Force has granted only 23 of those appeals, denying 2,978. (Id.) A quick calculation

shows that the Air Force, either through initial requests or appeals, have granted

approximately 1% of religious accommodation requests between September 1, 2021,

when the Air Force vaccine requirement went into effect, and June 6, 2022. Despite the

Air Force’s apparent policy and practice of denying virtually all religious accommodation

requests, the Air Force has granted 729 medical exemption requests and 1,006

administrative exemption requests since implementing its COVID-19 vaccination

requirement policy September 1, 2021. (Id.)

Plaintiffs now seek class certification on behalf of:

All active-duty, and active reserve members of the United States Air Force

who: (i) submitted a religious accommodation request to the Air Force from

the Air Force’s COVID-19 vaccination requirement, where the request was

submitted or was pending, from September 1, 2021 to the present; (ii) were

confirmed as having had a sincerely held religious belief by or through Air

Force Chaplains; and (iii) either had their requested accommodation denied

or have not had action on that request.

(Motion for Class Certification (“Motion for Class Cert.”), Doc. 21, Pg. ID 952.)

LAW

This Court “maintains substantial discretion in determining whether to certify a

class.” In re Countrywide Fin. Corp. Mort. Lending Practices Litig., 708 F.3d 704, 707 (6th Cir.

2013). “The class action is an exception to the usual rule that litigation is conducted by

and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564

US. 338, 348 (2011) (citation omitted). “In order to justify a departure from that rule, a

class representative must be part of the class and possess the same interest and suffer the

same injury as the class members.” Zehentbauer Family Land, LP v. Chesapeake Expl., L.L.C.,

935 F.3d 496, 503 (6th Cir. 2019).

Class certification first requires the moving party to satisfy the Rule 23(a)

prerequisites. Dukes, 564 U.S. at 345. These prerequisites are known as “numerosity,

commonality, typicality, and adequate representation[.]” Id. at 349. Such prerequisites

“effectively limit the class claims to those fairly encompassed by the named plaintiff's

claims.” Id.

Additionally, “[a] class action may be maintained if Rule 23(a) is satisfied and if”

Rule 23(b)(1), (2), or (3) is also satisfied. Id. at fn. 8. Relevant here, Rule 23(b)(1)(a) is

satisfied if “ prosecuting separate actions by or against individual class members would

create a risk of . . . inconsistent or varying adjudications with respect to individual class

members that would establish incompatible standards or conduct for the party opposing

the class[.]” Fed. R. Civ. P. 23(b)(1)(a). Additionally, Rule 23(b)(2) is satisfied if “the party

opposing the class has acted or refused to act on grounds that apply generally to the class,

so that final injunctive relief or corresponding declaratory relief is appropriate respecting

the class as a whole[.]” Fed. R. Civ. P. 23(b)(2).

When determining whether class certification is appropriate, courts must “probe

behind the pleadings[,]” because certification is only proper after “a rigorous analysis”

into whether Rule 23’s prerequisites are met. Comcast Corp. v. Behrend, 569 U.S. 27, 33

(2013). Such rigorous analysis “will frequently entail overlap with the merits of the

plaintiffs underlying claim ... because a class determination generally involves

considerations that are enmeshed in the factual and legal issues comprising the plaintiff's

cause of action.” Id. at 33-34 (cleaned up). However, this “rigorous analysis is not... □

‘license to engage in free-ranging merits inquiries at the certification stage.’” Zehentbauer

Family Land, 935 F.3d at 504 (quoting Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S.

455, 466 (2013)).

ANALYSIS

Plaintiffs argue that class certification is warranted because the Rule 23(a)

prerequisites are satisfied and because they satisfy both Rule 23(b)(1)(a) and Rule 23(b)(2).

Defendants do not contest Plaintiffs’ definition of the putative class, nor do they contest

that Plaintiffs established the numerosity requirement. Instead, Defendants challenge the

remaining Rule 23(a) prerequisites: commonality, typicality, and adequacy of

representation. Additionally, Defendants argue that Plaintiffs fail to satisfy Rule 23(b)(2)

but ignore Plaintiffs’ argument regarding Rule 23(b)(1)(a).

For the reasons that follow, Plaintiffs have satisfied the Rule 23(a) prerequisites, as

well as Rule 23(b)(1)(a) and Rule 23(b)(2). Thus, class certification is warranted.

Plaintiffs Have Satisfied the Rule 23(a) Prerequisites.

a. Numerosity

First, Plaintiffs must establish numerosity. To satisfy the numerosity requirement,

Plaintiffs must show that “the class is so numerous that joinder of all members is

impracticable[.]” Fed. R. Civ. P. 23(a)(1). “No numerical test exists” to satisfy the

numerosity requirement. Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 541 (6th Cir.

2012). However, “substantial numbers of affected [individuals] are sufficient to satisfy”

such requirement. Id.

Here, the Government does not contest that Plaintiffs satisfy Rule 23(a)’s

numerosity requirement, and the Court finds that Plaintiffs clearly demonstrate that the

putative class is numerous enough to merit certification. In their reply, “Plaintiffs seek a

class of: ‘All active-duty, and active reserve members of the United States Air Force and

Space Force who: (i) submitted a religious accommodation request to the Air Force from

the Air Force’s COVID-19 vaccination requirement, where the request was submitted or

was pending, from September 1, 2021 to the present; (ii) were confirmed as having had a

sincerely held religious belief by or through Air Force Chaplains; and (iii) either had their

requested accommodation denied or have not had action on that request.” (Reply in

Support, Doc. 46, Pg. ID 3105.) Plaintiffs contend that such class would include, at the

time Plaintiffs filed this motion, over 12,000 Airmen. (Motion for Class Cert., Doc. 21, Pg.

ID 955.) Thus, a substantial number of Airmen are affected in this case and joinder of all

Airmen seeking religious accommodations is impracticable. Plaintiffs’ proposed class

clearly satisfies the numerosity requirement.

b. Commonality

Second, Plaintiffs must establish commonality. Rule 23(a)(2), the commonality

prerequisite, “requires that for certification there must be ‘questions of law or fact

common to the class.’” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996) (quoting

Fed. R. Civ. P. 23(a)(1)). While Rule 23(a)(2) “speaks of ‘questions’ in the plural,” the Sixth

Circuit has held that “there need only be one question common to the case.” Sprague v.

Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998).

“Commonality requires the plaintiff to demonstrate that the class members ‘have

suffered the same injury[,]’” not merely demonstrate that the class members “have all

suffered a violation of the same provision of law.” Dukes, 564 U.S. at 349-50 (quoting Gen.

Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Thus, “their claims must depend upon □

common contention.” [d. at 350. And the common contention “must be of such a nature

that it is capable of classwide resolution— which means that determination of its truth or

falsity will resolve an issue that is central to the validity of each one of the claims in one

stroke.” Id.

Plaintiffs argue that Rule 23(a)(2) is satisfied because “[aJll of the claims here

involve what is, essentially, claims for religious discrimination” and such claims all have

“common elements of proof to prove the claims at issue for each Plaintiff and for the

class.” (Motion for Class Cert., Doc. 21, Pg. ID 957.) Defendants disagree, arguing that

Plaintiffs must either: “(1) show that the employer ‘used a biased testing procedure’

common to the whole proposed class, or (2) provide ‘[s]ignificant proof that an employer

operated under a general policy of discrimination’ that would apply to the class” as

provided in Dukes, 564 U.S. at 353. (Response in Opposition (“Response in Opp.”), Doc.

34, Pg. ID 2205.) Additionally, Defendants argue that, due to the individualized analysis

required under RFRA, commonality cannot be established.

Here, Plaintiffs and the putative class members have all allegedly suffered the

same injury: violation of their constitutional rights. A putative class would consist only

of Airmen who have submitted religious accommodation requests, had an Air Force

Chaplain define their religious beliefs as sincerely held, and yet their religious

accommodation requests have been denied or delayed. The facts show Defendants have

engaged in a pattern of denying religious accommodation requests. Indeed, of the over

nine thousand religious exemption requests, only 109 have been granted by either initial

determination or appeal. ((DAF COVID-19 Statistics - June 7, 2022,

https:/ / www.af.mil/ News/ Article-Display / Article/3055214/ daf-covid-19-statistics-

june-7-2022/ (last visited June 30, 2022.)).) This amounts to only 1% of religious

accommodation requests being granted. (Id.) “[I]t is hard to imagine a more consistent

display of discrimination.” U.S. Navy SEALs 1-26 v. Austin, No. 4:21-cv-01236-O, 2022 WL

1025144, *5 (N.D. Tex. Mar. 28, 2022).

Importantly, damages stemming from the alleged violation need not be identical

for this Court to grant class certification. See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188,

1197 (6th Cir. 1988) (“No matter how individualized the issue of damages may be, these

issues may be reserved for individual treatment with the question of liability tried as a

class action. Consequently, the mere fact that questions peculiar to each individual

member of the class remain after the common questions of the defendant's liability have

been resolved does not dictate the conclusion that a class action is impermissible”). Thus,

the putative class members face the same injury: violation of their constitutional freedom

by Defendants’ clear policy of discrimination against religious accommodation requests.

Additionally, Plaintiffs’ claims are capable of class-wide resolution. A finding in

favor of Plaintiffs on the RFRA or Free Exercise claims also resolves such claims by the

putative class because they involve the same common analysis: Does Defendants’ policy

and practice of discrimination by denying substantially all religious accommodation

requests by Airmen who maintain sincerely held religious beliefs further a compelling

governmental interest and is such policy and practice the least restrictive means to

achieve compelling governmental interests, if any exist? A finding for Plaintiffs or

Defendants would result in class-wide resolution, satisfying the commonality

requirement.

Defendants’ argument that, due to the “highly individualized nature of RFRA

claims|,]” commonality cannot be established, fails. (Response in Opp., Doc. 34, Pg. ID

2203.) Under these facts, analysis of the violation itself does not need to be “highly

individualized” because it arises from Defendants’ overt policy of denying substantially

all religious accommodation requests. The unity of analysis as to the violation establishes

commonality here. Whether a separate analysis is necessary regarding individualized

damages does not affect this conclusion. See Sterling, 855 F.2d at 1197. Thus, Defendants’

argument fails.

Thus, because putative class members have suffered the same injury as Plaintiffs

and class-wide resolution is possible for Plaintiffs’ RFRA and Free Exercise claims,

Plaintiffs have satisfied the commonality requirement pursuant to Fed. R. Civ. P. 23(a)(2).

c. Typicality

Third, Plaintiffs must establish typicality. To satisfy the typicality requirement,

Plaintiffs must establish that “the claims or defenses of the representative parties are

typical of the claims or defenses of the class...” Fed. R. Civ. P. 23(a)(3). “The commonality

and typicality requirements of Rule 23(a) tend to merge.” General Telephone Co. of

Southwest v. Falcon, 457 U.S. 147, fn. 13 (1982). This is because “[b]oth serve as guideposts

for determining whether under the particular circumstances maintenance of a class action

is economical and whether the named plaintiff's claim and the class claims are so

interrelated that the interests of the class members will be fairly and adequately protected

in their absence.” Id.

“{[MJany courts have found typicality if the claims or defenses of the

representatives and the members of the class stem from a single event or a unitary course

of conduct, or if they are based on the same legal or remedial theory.” Rikos v. Procter &

Gamble Co., 799 F.3d 497, 509 (6th Cir. 2015) (citing Charles Alan Wright, Arthur R. Miller

& Mary Kay Kane, 7A Federal Practice and Procedure § 1764 (3d ed. 2005)). The Sixth

Circuit has explained that the typicality test “limits the class claims to those fairly

encompassed by the named plaintiffs’ claims.” Sprague, 133 F.3d 388, 399 (6th Cir. 1998).

As the Sprague court explained:

Typicality determines whether a sufficient relationship exists between the

injury to the named plaintiff and the conduct affecting the class, so that the

court may properly attribute a collective nature to the challenged conduct .

. . A necessary consequence of the typicality requirement is that the

representative’s interests will be aligned with those of the represented

group, and in pursuing his own claims, the named plaintiff will also

advance the interests of the class members.

Id. (quotations omitted).

“The premise of the typicality requirement is simply stated: as goes the claim of the

named plaintiff, so go the claims of the class.” Id.

Plaintiffs argue that typicality is established here for the exact reasons that

commonality is established: because the class claims would all involve “claims of

religious discrimination and [would be] centered upon the Government's granting of

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thousands of administrative and medical exemptions, and systemic denial of religious

exemptions.” (Motion for Class Cert., Doc. 21, Pg. ID 957.) The Government argues that

such similarities are not enough because the roles, responsibilities, levels of proximity,

likelihood of deployment or travel, and ability to telework varies from Airmen to Airmen.

Additionally, the Government argues that because “Plaintiffs’ putative class [would] also

include[] service members with a broad variety of religious beliefs and, consequently,

different reasons for objecting to the COVID-19 vaccine[,]” typicality cannot be

established. (Response in Opp., Doc. 34, Pg. ID 2215.)

Typicality is established here. Plaintiffs seek relief under RFRA and the Free

Exercise Clause of the First Amendment. These are also the only claims which would be

pursued by the putative class. Just as in the commonality element, Plaintiffs’ claims and

the class claims stem from a unitary course of conduct and are based on the same legal

and remedial theory. “The factual circumstances need not be identical for each of the class

members; some variation among members is permissible.” U.S. Navy SEALs 1-26, 2022

WL 1025144 at *7. Thus, the claims are typical of, and, in fact, identical to, the claims of

the entire class.

Defendants’ argument that factual differences between putative class members

disallow a finding of typicality is not persuasive. Defendants appear to again argue that

the Court must individually analyze each Airmen’s claims on the one hand, while

systematically denying all religious accommodation requests despite the factual

differences Defendants claim the Court should consider on the other. The Court

appreciates there may be minor factual differences between the members of the class,

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including roles, responsibilities, levels of proximity, likelihood of deployment or travel,

and ability to telework, as well as different religious beliefs and reasons for objecting to

the COVID-19 vaccine. However, these minor differences do not outweigh that

Defendants’ typical response when receiving a religious accommodation request is to

deny it. The typicality of the putative class is reflected in the fact that Defendants have

indiscriminately denied almost all religious accommodation requests and their use of

form letters to deny the accommodation requests. (See DAF COVID-19 Statistics - June

7, 2022, https://www.af.mil/News/ Article-Display / Article/3055214/ daf-covid-19-

statistics-june-7-2022/ (last visited June 30, 2022.); see also Exhibit Comparison of

Command Religious Accommodation Denials, Doc. 46-3; Exhibit Comparison of Air

Force Surgeon General Religious Accommodation Denials, Doc. 46-4.) Such facts suggest

that Defendants do not individually weigh each applicant's belief or circumstances in

issuing their response, further cementing the typicality of the class.

Furthermore, these factual differences do not defeat typicality. Plaintiffs’ claims

are typical of the class because the claims stem for a unitary course of conduct:

Defendants’ overt policy to deny virtually all religious accommodation requests. And, in

cases where the executive implements a COVID-19 vaccine requirement and

discriminates against religious accommodation requests, this Court is not the first to find

that such conduct establishes typicality. See U.S. Navy SEALs 1-26, 2022 WL 1025144.

Thus, because the class claims are fairly encompassed by Plaintiffs’ claims and

such claims all stem from Defendants’ unitary course of conduct, Plaintiffs have satisfied

the typicality requirement pursuant to Fed. R. Civ. P. 23(a)(3).

12

d. Adequacy of Representation

Fourth, Plaintiffs must establish adequacy of representation. Rule 23(a)(4) allows

a court to certify a class only if “the representative parties will fairly and adequately

protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The commonality and typicality

requirements “also tend to merge with the adequacy-of-representation requirement,

although the latter requirement also raises concerns about the competency of class

counsel and conflicts of interest.” Dukes, 564 U.S. at 378, fn. 5 (quoting Falcon, 457 U.S. at

157-58, fn. 13). The Sixth Circuit has articulated a two-prong test to determine adequacy-

of-representation: “(1) the representative must have common interests with unnamed

members of the class, and (2) it must appear that the representatives will vigorously

prosecute the interests of the class through qualified counsel.” In re Am. Med. Sys., Inc., 75

F.3d at 1083.

Plaintiffs argue that the two-prong adequacy-of-representation test is satisfied

here. First, Plaintiffs argue that “Plaintiffs and the Class Members possess the same

interest and suffered the same injury: each of them requested a religious accommodation

and have either had it denied, or have not had it acted upon...” (Motion for Class Cert.,

Doc. 21, Pg. ID 958.) Second, Plaintiffs argue that the second prong is met because

“Plaintiffs are represented by qualified counsel with extensive experience prosecuting

class actions, constitutional matters, and religious freedoms cases.” (Id.) However,

Defendants argue that adequacy-of-representation is not satisfied because Plaintiffs and

the proposed putative class possess conflicts of interests due to separately filed lawsuits

“around the country challenging the COVID vaccine requirements for members of the

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Air Force[,]” especially considering three separate lawsuits brought by Airmen also

purport to bring class action claims.” (Response in Opp., Doc. 24, Pg. ID 2219.)

First, Plaintiffs have common interests with unnamed members of the class. The

class includes Airmen who have been denied or delayed religious accommodations from

receiving a COVID-19 vaccine due to their sincerely held religious beliefs, just like

Plaintiffs. Despite the nine thousand Airmen seeking religious accommodations, less

than one percent have been granted. Thus, thousands of Airmen with sincerely held

religious beliefs, all of whom fall into the class, are facing punishment, including

involuntary separation. Plaintiffs and the class all have a common interest in injunctive

relief disallowing Airmen who seek religious accommodations from being punished for

abstaining from receiving the COVID-19 vaccine despite such sincerely held religious

beliefs. Therefore, the first prong of the adequacy-of-representation test is satisfied.

Second, it appears that the class representatives and counsel will vigorously

prosecute the class through qualified counsel. As described below, the Court finds

Plaintiffs’ counsel to be qualified to represent the class. Counsel all have experience in

representing classes actions and individuals seeking remedy for constitutional violations.

(See Declaration of Christopher Weist, Doc. 21-1.) Thus, the second prong of the

adequacy-of-representation test is also satisfied.

The Court is not persuaded by Defendants’ conflicts of interest argument. The

2 Additionally, Defendants argue that multiple Plaintiffs and the putative class have not exhausted their

administrative remedies, which bars a finding that common interests exist. (Response in Opp., Doc. 34, Pg.

ID 2221.) This Court has already ruled that such argument is not persuasive because exhaustion is futile.

(Order Granting in Part and Denying in Part Plaintiff's Motion for Preliminary Injunction and Issuing a

Preliminary Injunction, Doc. 47, Pg. ID 3182.) Thus, the Court need not address such argument.

14

Northern District of Texas ruled that no conflicts of interest existed in a case nearly

identical to this case, and that court’s reasoning is persuasive. In U.S. Navy SEALs 1-26,

the defendants, all Navy executives and officials, argued that class certification was not

watranted of all Navy servicemen due to the conflict created by concurrent litigation.

2022 WL 1025144 at *7. However, the court rejected the argument, stating that “the

injunctive relief that Plaintiffs seek will benefit all religiously opposed Navy

servicemembers who are presently involved in other mandate litigation. Potential class

members will not be harmed by class-wide relief. Likewise, Plaintiffs here will benefit

from injunctive relief granted in other courts.” Id. The court then found that no conflicts

exist, and the plaintiffs satisfied the adequacy of representative requirement. Id. at *8.

This Court agrees with the Northern District of Texas’s ruling in U.S. Navy SEALs

1-26. Simultaneous litigation does not present a conflict of interest for the class

representatives or counsel. This is because the injunctive relief would benefit all

religiously opposed Airmen who are currently pursuing litigation for the same purpose

as Plaintiffs. And Plaintiffs would benefit from injunctive relief granted in other courts.

Thus, Defendants’ argument that Plaintiffs cannot establish adequacy of representation

is unavailing.

Because Plaintiffs satisfied both prongs of the adequacy-of-representation test,

Plaintiffs have shown adequacy of representation as required by Fed. R. Civ. P. 23(a)(4).

Therefore, Plaintiffs have satisfied Fed. R. Civ. P. 23(a).

II. Plaintiffs Have Satisfied Rule 23(b).

In order for the Court to grant class certification, Plaintiffs must also show that

15

they may maintain a class action under Rule 23(b)(1), (2), or (3). Amchem Prod., Inc. v.

Windsor, 521 U.S. 591, 614 (1997). Plaintiffs seek certification of the class pursuant to Rule

23(b)(1)(A) and (2).

Rule 23(b)(1)(A) covers cases for which separate lawsuits by individual litigants

would risk establishing “incompatible standards of conduct for the party opposing the

class.” Fed. R. Civ. P. 23(b)(1)(A). This provision applies to cases where the defending

party is legally obligated to treat the members of the class alike or must treat all alike as

a matter of practical necessity. Amchem, 521 U.S. at 614.

The other potential class vehicle here, Rule 23(b)(2), permits class actions for

declaratory or injunctive relief when “the party opposing the class has acted or refused

to act on grounds that apply generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

Civ. P. 23(b)(2).

For the reasons set forth below, the proposed class is certifiable under both Rule

23(b)(1)(A) and Rule 23(b)(2).

a. Plaintiffs Have Satisfied Rule 23(b)(1)(A).

Plaintiffs argue that this case is cognizable under Rule 23(b)(1)(A) because the First

Amendment and RFRA oblige the Defendants to treat the members of the class alike. The

Court agrees.

To start, Defendants do not contest that the proposed class is certifiable under Rule

23(b)(1)(A). And, upon examination, the class may proceed under that provision. Rule

23(b)(1)(A) serves to prevent defendants from being legally bound by contradictory

16

rulings. It is designed to avoid injunctive or declaratory “whipsawing” where different

courts require the same defendant to abide by incompatible or contradictory rulings.

Payne v. Tri-State CareFlight, LLC, 332 F.R.D. 611, 664 (D.N.M. 2019). The concern under

this provision is not primarily that different lawsuits would yield different results for

different plaintiffs; rather, the concern is that different judicial outcomes would impose

conflicting obligations on the same defendant or group of defendants. See id.; see also

Snead v. CoreCivic of Tennessee, LLC, No. 3:17-CV-0949, 2018 WL 3157283, at *14 (M.D.

Tenn. June 27, 2018).

This case presents just such a risk. Similar claims may be brought in another court.

That court and this Court may arrive at incompatible conclusions with respect to Airmen

who seek religious exemptions from the vaccine mandate. One court may find that

Defendants may enforce its vaccine mandate over and against religious objections, and

another court may find the opposite. Such a scenario would prevent Defendants from

pursuing a uniform course of conduct towards servicemembers. Compare Clemons v.

Norton Healthcare Inc. Ret. Plan, 890 F.3d 254, 280 (6th Cir. 2018) (affirming certification

under Rule 23(b)(1)(A) for purposes of interpreting a retirement plan, because individual

actions would have risked establishing incompatible standards of conduct for the

defendant); Spurlock v. Fox, No. 3:09-CV-00756, 2012 WL 1461361, at *3 (M.D. Tenn. Apr.

27, 2012) (finding Rule 23(b)(1)(A) certification appropriate so that defendants could

pursue a uniform course of conduct regarding a re-zoning plan) with Pipefitters Loc. 636

Ins. Fund v. Blue Cross Blue Shield of Michigan, 654 F.3d 618, 633 (6th Cir. 2011) (finding

Rule 23(b)(1)(A) certification inappropriate because there was no indication that

17

individual adjudications would subject defendant to conflicting affirmative duties).

Accordingly, there exists here the risk of inconsistent or varying adjudications that

would establish incompatible standards of conduct under which Defendants would have

to comply. Because this case presents a (b)(1)(A) risk, the proposed class is certifiable

under that provision.

b. Plaintiffs Have Satisfied Rule 23(b)(2).

Plaintiffs also maintain that a Rule 23(b)(2) class is appropriate, because

Defendants’ policy on vaccines applies to the class as a whole such that the entire class is

entitled to declaratory and injunctive relief. Defendants, on the other hand, argue that

Plaintiffs seek individualized determinations with regard to their religious

accommodation requests, rather than relief that addresses a singular, discrete issue that

affects the entire putative class. They contend that the analysis in religion cases is

individualized and specific, requiring a court to determine whether each and every class

member holds a sincerely held religious belief that precludes the use of a vaccine. The

Court agrees with Plaintiffs on this point and concludes that the proposed class may also

proceed under Rule 23(b)(2).

A class may proceed under (b)(2) if the parties opposing the class have “acted or

refused to act on grounds that apply generally to the class, so that final injunctive relief

or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.

R. Civ. P. 23(b)(2). This provision is met when the relief sought affects the entire class at

once. Dukes, 564 U.S. at 361-62. To qualify for class-wide injunctive relief, class members

must have suffered harm in essentially the same way and injunctive relief must

18

predominate over monetary damages. U.S. Navy SEALs 1-26, 2022 WL 1025144, at *8.

The proposed class satisfies the (b)(2) requirement. Defendants’ attempt to

characterize the relief sought as hinging on individualized determinations concerning

their religious accommodation requests and sincerely held religious beliefs. But the relief

the proposed class seeks is the same: a religious accommodation relating to the COVID-

19 vaccine mandate. And they have been harmed in “essentially the same way.” Id. They

face separation from the Air Force and other disciplinary measures. A single injunction

would provide relief to the entire class. See Dukes, 564 U.S. at 360. Indeed, the main

purpose of a (b)(2) class is to provide relief through a single injunction or declaratory

judgment. Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir. 2016). Because Defendants

have uniformly maintained a policy of overriding Airmen’s religious objections to the

COVID-19 vaccine, they have acted “on grounds that apply generally to the class.” Fed.

R. Civ. P. 23(b)(2). Moreover, the class definition requires that a Chaplain certify that the

airman’s religious beliefs are sincerely held. Finally, a single injunction would provide

the proposed class with the relief they seek from the harm they stand to suffer. U.S. Navy

SEALs, 2022 WL 1025144 at *9. Accordingly, the class may be certified under Rule

23(b)(2).

III. Temporary Restraining Order Covering the Class

Because the Plaintiffs have satisfied the necessary Rule 23 requirements, the

Court will certify the following class:

All active-duty and active reserve members of the United States Air Force

and Space Force, including but not limited to Air Force Academy Cadets,

Air Force Reserve Officer Training Corps (AFROTC) Cadets, Members of

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the Air Force Reserve Command, and any Airman who has sworn or

affirmed the United States Uniformed Services Oath of Office and is

currently under command and could be deployed, who: (i) submitted a

religious accommodation request to the Air Force from the Air Force’s

COVID-19 vaccination requirement, where the request was submitted or

was pending, from September 1, 2021 to the present; (ii) were confirmed as

having had a sincerely held religious belief by or through Air Force

Chaplains; and (iii) either had their requested accommodation denied or

have not had action on that request.

In its broad discretion to modify class definitions, the Court has modified the class

definition to more precisely delineate the scope of the class. Powers v. Hamilton Cnty. Pub.

Def. Comm'n, 501 F.3d 592, 619 (6th Cir. 2007). Furthermore, to facilitate briefing and

shepherd this matter to the next pretrial stage, the Court will issue a temporary

restraining order prohibiting Defendants from enforcing the vaccine mandate against any

of the above Class Members for the next 14 days following the entry of this Order. (See

Doc. 13, Plaintiffs’ Motion for an Emergency Temporary Restraining Order). Within that

timeframe, the parties will advise the Court, as laid out below, as to whether any

significant change precludes extending the current preliminary injunction to include all

Class Members.

IV. Rule 23(g)

This Court may appoint class counsel, pursuant to Fed. R. Civ. P. 23(g). “In

appointing class counsel, the court . . . must consider: (i) the work counsel has done in

identifying or investigating potential claims in the action; (ii) counsel’s experience in

handling class actions, other complex litigation, and the types of claims asserted in the

action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel

will commit to representing the class[.]” Fed. R. Civ. P. 23(g)(1)(A). Additionally, “the

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court .. . may consider any other matter pertinent to counsel's ability to fairly and

adequately represent the interests of the class[.]” Fed. R. Civ. P. 23(g)(1)(B).

As demonstrated by the Declaration of Christopher Wiest and its exhibits, each

counsel for Plaintiffs has experience in handling complex litigation and constitutional

rights violation cases. (See Declaration of Christopher Weist, Doc. 21-1.) Additionally,

such experience demonstrates that counsel all have knowledge of the applicable law in

this case. Lastly, based on the advocacy of Plaintiffs’ counsel thus far, each have exhibited

that they are willing to commit the necessary resources to adequately represent the

Plaintiffs’ and putative class members’ interests in this case. Accordingly, the Court will

appoint Plaintiffs’ counsel as class counsel in this matter.

CONCLUSION

For the foregoing reasons, the Court ORDERS the following:

1. Plaintiffs’ Motion for Class Certification (Doc. 21) is GRANTED.

2. Such class SHALL consist of active-duty and active reserve members of the

United States Air Force and Space Force, including but not limited to Air Force

Academy Cadets, Air Force Reserve Officer Training Corps (AFROTC) Cadets,

Members of the Air Force Reserve Command, and any Airman who has sworn or

affirmed the United States Uniformed Services Oath of Office and is currently

under command and could be deployed, who: (i) submitted a religious

accommodation request to the Air Force from the Air Force’s COVID-19

vaccination requirement, where the request was submitted or was pending, from

September 1, 2021 to the present; (ii) were confirmed as having had a sincerely

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held religious belief by or through Air Force Chaplains; and (iii) either had their

requested accommodation denied or have not had action on that request.

3. Defendants’ Motion to Sever (Doc. 35) is DENIED AS MOOT.

4, Proposed Intervenors’ Motion to Intervene (Doc. 52), Proposed Intervenors’

Motion for Preliminary Injunction (Doc. 53), and Emergency Motion for

Temporary Restraining Order by Proposed Intervenors Johnathan Oberg and

Johnathan Nipp (Doc. 54) are DENIED WITHOUT PREJUDICE.

5. Plaintiffs’ counsel is APPOINTED as class counsel in this matter.

6. The Court ISSUES a TEMPORARY RESTRAINING ORDER prohibiting

Defendants from enforcing the vaccine mandate against any Class Member, to

expire 14 days from the entry of this Order.

7. Defendants are ORDERED to file a supplemental brief, no later than July 21, 2022

and no more than ten (10) pages in length identifying why this Court should not

grant a class-wide preliminary injunction. Plaintiffs may file a response, limited to

ten (10) pages, to Defendants’ supplemental brief by July 25, 2022.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

Wank, wo faley

By:

JUDGE MATTHEW W. McFARLAND

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