Oklahoma State of v. Biden

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

STATE OF OKLAHOMA, et al., )

)

Plaintiffs, )

)

-vs- ) Case No. CIV-21-1136-F

)

JOSEPH R. BIDEN, JR., in his offi- )

cial capacity as President of the United )

States, et al., )

)

Defendants. )

ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

I. INTRODUCTION

The Governor of Oklahoma and his co-plaintiffs seek, in this action, to enjoin

the implementation of Department of Defense directives mandating the vaccination

of members of the Oklahoma National Guard and the Oklahoma Air National Guard

against COVID-19.1

The vaccine mandate to which the Governor objects is the one–in addition to

the nine that already apply to all service members–intended to protect service mem-

bers from the virus which has, in less than two years, killed more Americans than

1 It is clear from the complaint and the amended complaint that the claims asserted by State of

Oklahoma and its Governor encompass both the Oklahoma National Guard and the Oklahoma Air

National Guard. Consequently, in this order, the Oklahoma National Guard and the Oklahoma Air

National Guard will be referred to collectively and without differentiation simply as “the Guard,”

except where clarity or the context otherwise requires.

have been killed in action in all of the wars the United States has ever fought.2 The

court is required to decide this case on the basis of federal law, not common sense.

But, either way, the result would be the same. The claims asserted by the Governor

and his co-plaintiffs are without merit. The motion for preliminary injunction will

be denied.

This action was filed on December 2, 2021, on behalf of the State of Okla-

homa, Governor J. Kevin Stitt, Oklahoma Attorney General John M. O’Connor, and

sixteen Oklahoma Air National Guard members who seek to proceed anonymously.

A motion for temporary restraining order and preliminary injunction was filed on

December 3, 2021. Doc. no. 9 (herein: motion). At a status and scheduling confer-

ence held on December 13, 2021, the court informed counsel that the issues pre-

sented by the motion would be addressed by way of consideration of entry of a

preliminary injunction and not via the request for a temporary restraining order. De-

fendants have responded to the motion, doc. no. 37, and plaintiffs have replied.3

Doc. no. 39. The motion has been fully briefed and is ripe for determination. The

dispositive facts are adequately established in the record. Consequently, an eviden-

tiary hearing is not necessary.

As an initial matter, the court will note that the complaint, as filed on Decem-

ber 2, 2021 focused entirely on Executive Order 14043,4 which applies to federal

civilian employees. The Executive Order does not apply to service members in the

2 COVID-19 has killed more than 800,000 Americans. Doc. no. 37-5, at 3. According to the

Department of Veterans Affairs, fewer than 700,000 American service members have been killed

in action in all of the wars the country has fought since the American Revolution.

<https://www.va.gov/opa/publications/factsheets/fs_americas_wars.pdf>

3 The motion now before the court does not seek preliminary injunctive relief on the basis of Count

VII (Fifth Amendment), Count IX (First Amendment) or Count X (Religious Freedom Restoration

Act).

4 Executive Order 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employ-

ees, The White House (September 9, 2021), doc. no. 9-1.

Guard or otherwise. An amended complaint, challenging–for the first time–the mil-

itary vaccine mandate as applied to the Guard, was filed on December 27, 2021.

Doc. no. 38. Plaintiffs’ Reply, also filed on December 27, 2021, addresses–for the

first time–the statutory provisions which are decisive in this action, namely the stat-

utes creating the Guard and providing for its governance. Plaintiffs also filed a mo-

tion for protective order on December 27, 2021, doc. no. 40, seeking authorization

for the sixteen individual plaintiffs to proceed anonymously.

II. PRELIMINARY INJUNCTION STANDARD

A preliminary injunction is “the exception rather than the rule.” United States

ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc., 883

F.2d 886, 888 (10th Cir. 1989). Because it is “an extraordinary remedy, the right to

relief must be clear and unequivocal.” Dominion Video Satellite, Inc. v. Echostar

Satellite Corp., 356 F.3d 1256, 1261 (10th Cir. 2004) (internal quotation marks and

citation omitted). To obtain a preliminary injunction, the movant bears the burden

of establishing four factors: “(1) a likelihood of success on the merits; (2) a likeli-

hood that the moving party will suffer irreparable harm if the injunction is not

granted; (3) the balance of equities is in the moving party’s favor; and (4) the pre-

liminary injunction is in the public interest.” Republican Party of N. M. v. King, 741

F.3d 1089, 1092 (10th Cir. 2013). Where the federal government is the opposing

party, these last two factors merge. Nken v. Holder, 556 U.S. 418, 436 (2009) (third

factor described as “harm to the opposing party”). But where a movant fails to es-

tablish a likelihood of success on the merits, it is unnecessary to address the remain-

ing requirements for a preliminary injunction. Warner v. Gross, 776 F.3d 721, 736

(10th Cir. 2015). For preliminary injunction purposes, the required showing on the

“merits,” includes “not only substantive theories but also establishment of jurisdic-

tion.” Electronic Privacy Info. Ctr. v. U. S. Dep’t of Commerce, 928 F.3d 95, 104

(D.C. Cir. 2019) (internal quotation marks and citations omitted).

III. SUBJECT MATTER JURISDICTION

Before addressing the preliminary injunction factors, the court must resolve

two issues which bear on its subject matter jurisdiction–the inclusion, as plaintiffs,

of individuals who wish to proceed anonymously, and standing.

a. Anonymous individual plaintiffs.

The complaint and the amended complaint refer to sixteen individual Okla-

homa Air National Guard members as plaintiffs. But those sixteen individuals are

not named in those pleadings; they seek to proceed anonymously.

“The Federal Rules of Civil Procedure ‘make no provision for suits by persons

using fictitious names or for anonymous plaintiffs.’” United States ex rel. Little v.

Triumph Gear Systems, Inc., 870 F.3d 1242, 1249 (10th Cir. 2017) (quoting Nat’l

Commodity & Barter Ass’n, Nat’l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245

(10th Cir. 1989)). Indeed, Rule 10(a), Fed. R. Civ. P., requires “[t]he title of the

complaint [to] name all the parties[.]” Although the Tenth Circuit has recognized

that “[i]n certain limited circumstances,” a plaintiff may be permitted by the district

court to proceed anonymously, Gibbs, 886 F.2d at 1245, it has determined that the

plaintiff must make a “request to the district court for permission to proceed anony-

mously[.]” Id. Absent permission, the district court lacks “jurisdiction over the un-

named parties, as a case has not been commenced with respect to them.” Id.

(footnote omitted); see, W.N.J. v. Yocom, 257 F.3d 1171, 1172-73 (10th Cir. 2001)

(dismissing an appeal because the district court never had jurisdiction over plaintiffs

who had failed to request permission from district court before proceeding anony-

mously).

In the case at bar, the sixteen unnamed plaintiffs sought permission yesterday–

nearly a month after this action was filed–to proceed anonymously. Defendants will

presumably respond to that motion within the time allotted by the local rules. The

court will then either grant or deny permission to proceed anonymously. In the

meantime, the court lacks jurisdiction to grant relief to the unnamed plaintiffs.

b. Standing.

“Article III of the Constitution limits federal courts to deciding ‘Cases’ and

‘Controversies.’” Dep’t of Commerce v. New York (Census), 139 S.Ct. 2551, 2565

(2019). “For a legal dispute to qualify as a genuine case or controversy, at least one

plaintiff must have standing to sue.” Id. at 2565. “The doctrine of standing ‘limits

the category of litigants empowered to maintain a lawsuit in federal court to seek

redress for a legal wrong’ and ‘confines the federal courts to a properly judicial

role.’” Id. (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)).

To have Article III standing, the plaintiff “must have (1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3)

that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc., 578

U.S. at 338. An injury-in-fact is “an invasion of a legally protected interest which

is (a) concrete and particularized, . . . and (b) actual or imminent, not conjectural or

hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotation

marks and citations omitted).

“[A]s the party invoking federal jurisdiction,” the plaintiff “bears the burden

of establishing these elements.” Spokeo, 578 U.S. at 338. “[E]ach element must be

supported in the same way as any other matter on which the plaintiff bears the burden

of proof, i.e., with the manner and degree of evidence required at the successive

stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. at 561. Therefore,

at the preliminary injunction stage, the plaintiff must make a “clear showing” of

standing. Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing Winter v.

Natural Resources Def. Council, Inc., 555 U.S. 7, 22 (2008)).

In addition to having Article III standing, a plaintiff must also have prudential

standing. “Prudential standing is not jurisdictional in the same sense as Article III

standing.” Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007). Prudential

standing consists of “a judicially-created set of principles that, like constitutional

standing, places limits on the class of persons who may invoke the courts’ decisional

and remedial powers.” Bd. of County Comm’rs v. Geringer, 297 F.3d 1108, 1112

(10th Cir. 2002) (quotation marks and citation omitted). Generally, there are three

prudential-standing requirements: (1) “a plaintiff must assert his own rights, rather

than those belonging to third parties;” (2) “the plaintiff’s claim must not be a gener-

alized grievance shared in substantially equal measure by all or a large class of citi-

zens;” and (3) “a plaintiff’s grievance must arguably fall within the zone of interests

protected or regulated by the statutory provision or constitutional guarantee invoked

in the suit.” Id. (internal quotation marks and citations omitted).

Initially, the State of Oklahoma asserts it has standing to bring suit as parens

patriae. The parens patriae doctrine allows states to bring suit on behalf of their

citizens by asserting an injury to a “‘quasi-sovereign’ interest.” Alfred L. Snapp &

Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 601 (1982). A state’s concern

for the health and well-being of its residents falls within the recognized category of

quasi-sovereign interests which justifies parens patriae standing. Id. at 607 (“[A]

State has a quasi-sovereign interest in the health and well-being—both physical and

economic—of its residents in general.”). The State of Oklahoma asserts that it seeks

in this action “to protect its residents’ health and well-being from the [vaccine] man-

date[.]” Doc. no. 9, at 5. Nevertheless, under Tenth Circuit authority, “the State

does not have standing as parens patriae to bring an action on behalf of its citizens

against the federal government because the federal government is presumed to rep-

resent the State’s citizens.” Wyo. ex rel. Sullivan v. Lujan, 969 F.2d 877, 883 (10th

Cir. 1992); see, Wyo. v. U.S. Dep’t of Interior, 674 F.3d 1220, 1232 (10th Cir. 2012)

(state and county could not bring suit on behalf of local business owners); see also,

Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 183 (D.C. Cir. 2019) (concluding

that the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007),

did not create an exception to the rule that States lack parens patriae standing to sue

the federal government). Thus, the court concludes that the State does not have

parens patriae standing to bring this action.

In addition, the State of Oklahoma contends that it may bring suit to protect a

recognized sovereign interest consisting of the “power to create and enforce a legal

code.” Doc. no. 9, at 5. “[T]he power to create and enforce a legal code” constitutes

a sovereign interest. An impediment to a sovereign interest can give the State stand-

ing to sue in federal court. Alfred L. Snapp & Son, 458 U.S. at 601-02; see also,

Wyo. ex rel. Crank v. United States, 539 F.3d 1236, 1242 (10th Cir. 2008) (Wyoming

had standing to challenge Bureau of Alcohol, Tobacco, and Firearms’ interpretation

of federal firearms law because the interpretation undermined Wyoming’s ability to

enforce its own law). The State of Oklahoma has not shown any federal action that

interferes with its exercise of “the power to create and enforce a legal code.” Snapp,

at 601 (emphasis added). The State does not identify any state law with which EO

14043 or the military vaccine mandate interferes.

Next, the State of Oklahoma maintains that it has standing “when it has suf-

fered an economic injury[.] Doc. no. 9, at 5. However, the State has not made a

clear showing of how EO 14043 or the military vaccine mandate has caused, or will

cause, economic injury to the State. In its complaint, the State alleges an injury in

the form of lost “State tax dollars” when federal employees lose their jobs because

they choose not to be vaccinated. Complaint, ¶ 91; amended complaint, ¶ 98. A

loss of general tax revenue is not adequate to establish standing. Instead, the State

must show the loss of specific tax revenue. Wyo. v. Okla., 502 U.S. 437, 448 (1992).

Neither the complaint nor the State’s papers demonstrate any loss of specific tax

revenues, or a loss of future tax revenue, beyond sheer speculation. See, Wyoming

v. U.S. Dep’t of Interior, 674 F.3d at 1234-35 (state did not have standing because

there was no evidence of a specific loss of tax revenue and assertion of future lost

tax revenue was merely speculative).

The State also argues that it has standing because the Guard members’ depar-

tures will deprive the State of law enforcement resources to protect itself and its

citizens and will require the State to incur costs to mitigate or avoid the loss. The

State specifically points out that 89 percent of the airmen in the Guard have been

vaccinated, while only 40 percent of Army guardsmen have been vaccinated. Alt-

hough defendants contend the State’s claim of an adverse effect on state law en-

forcement is “pure speculation,” doc. no. 37, at 17, the court concludes that the State

has demonstrated an injury sufficient to satisfy Article III. “‘An allegation of future

injury may suffice if the threatened injury is “certainly impending,” or there is a

“substantial risk” that the harm will occur.’” Susan B. Anthony List v. Driehaus,

573 U.S. 149, 158 (2014) (citation omitted). The State has sufficiently demonstrated

in its papers a substantial risk of harm which would occur as a result of the involun-

tary separation of Guard members who are not claiming an exemption and are de-

clining vaccination, which, in turn, “may prompt [the State] to reasonably incur costs

to mitigate or avoid that harm.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414

n. 5 (2013).

Although the State has demonstrated an injury-in-fact, it must also show the

injury “is fairly traceable to the challenged conduct of the defendant” and “is likely

to be redressed by a favorable judicial decision.” Spokeo, 578 U.S. at 338. As to

EO 14043, the court concludes that the State has failed show its injury is redressable

by a favorable court ruling.5 Even if the court were to enjoin defendants from en-

forcing EO 14043, the Guard members remain subject to the separate military vac-

cination requirement.

The only pending motion which seeks substantive relief is the motion for a

preliminary injunction, doc. no. 9. That motion and brief make no mention of the

military vaccine mandate. (The word “military” appears only twice in plaintiffs’ 26-

page brief.) The Reply, filed yesterday (with a December 31 vaccination compliance

deadline looming), seeks to remedy that omission. The court has carefully consid-

ered the new arguments set forth in the reply. They are unpersuasive, as will be

seen. But, for purposes of determining standing, the court concludes that the State

of Oklahoma has satisfied both the causation and redressability requirements with

respect to the military vaccine mandate. Moreover, the court concludes that the State

of Oklahoma has satisfied the prudential requirements for standing with respect to

military vaccine mandate as applied to the Guard.

IV. FACTS

Rule 52(a)(2), Fed. R. Civ. P., requires findings of fact in support of the

court’s action in granting or denying a preliminary injunction. The record now be-

fore the court easily suffices to provide the facts which control the court’s determi-

nation of the motion.6

5 The court notes the State of Oklahoma attempts to sue Joseph R. Biden, Jr., in his official capacity

as President of the United States. Federal courts generally have “no jurisdiction of a bill to enjoin

the President in the performance of his official duties” that is not purely ministerial. Franklin v.

Massachusetts, 505 U.S. 788, 802-803 (1992) (quotation marks and citation omitted).

6 The Court of Appeals has made it clear that the normal rules of evidence do not apply when the

court considers a motion for a preliminary injunction. Heideman v. South Salt Lake City, 348 F.3d

1182, 1188 (10th Cir. 2003). In Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 208,

210 (D.N.M. 2005), Judge Browning directly addressed the question of the admissibility of affi-

a. Organization of the Guard.

The organization of the Guard is not without its complexities. A starting point

is to bear in mind that Guard personnel may be governed by one (and, as to some

individuals, more than one) of three titles of the United States Code: Title 5, which

applies to most federal civilian employees, Title 10, which generally applies to active

duty armed forces, and Title 32, which applies to the Guard. As relevant here, the

following categories of Guard personnel should be borne in mind:7

Drill Status Guardsmen. This category includes most members of the Guard,

viz., those Oklahomans who are known by their friends and neighbors to be, in com-

mon vernacular, in “the Guard” or in “the Air Guard.” These are the “citizen sol-

diers” who leave their families and civilian jobs one weekend a month and two

weeks a year for training. Their service is generally governed by Title 32. Drill

Status Guardsmen are not subject to EO 14043. Their deadline for vaccination com-

pliance is December 31, 2021.

Title 32 Active Guard and Reserve. These are full-time uniformed service

members who serve at the state level but are paid with federal funds for their

full-time work. Their service is generally governed by Title 32, and they are not

subject to EO 14043. Their deadline for vaccination compliance is December 31,

2021.

Military Technicians (Dual Status). These are full-time Guard employees

who, legally, have one foot in the military and one foot in the civilian world. They

davits for purposes of a preliminary injunction and concluded (citing Heideman) that “[i]n decid-

ing a request for a preliminary injunction, the court may review and evaluate the credibility of

testimony, affidavits, and other evidence.” Id. at 210. That said, it is natural to be cautious about

relying on facts averred in affidavits or declarations under oath, where the testimony thus presented

has not been subjected to the usual tests afforded by the adversary process. The court has exercised

that caution in finding the facts as set forth in this order.

7 These findings as to the categories of Guard personnel are substantially based on the Declaration

of Col. Kevin A. Mulcahy, doc. no. 37-1.

are required to maintain their military position as a condition of their employment,

in consequence of which they are governed by both Title 5 (civilian employment)

and Title 32 (as Guard members). They typically have administrative, recruiting and

training responsibilities. As Guard members, they are included in the defendants’

military vaccine mandate. And as Guard members, their deadline for vaccination

compliance is December 31, 2021. The complaint and amended complaint list one

anonymous plaintiff as having dual status. Complaint, ⁋ 36; amended complaint, ¶

41. However, declarations filed by two of the putative anonymous plaintiffs indicate

that they have dual status. Doc. nos. 31 and 32.

Title 5 Civilian Employees. These individuals are federal civilian employees

working in, and for, Guard units. They are included in EO 14043 and were required

to comply with vaccination requirements by November 22, 2021. Unless they also,

incidentally, are Guard members (i.e., have dual status, as discussed above), they are

not subject to the military vaccine mandate. As is discussed elsewhere in this order,

it is not at all clear that this action is intended to challenge the enforceability of the

executive order as applied to individuals who are not Guard members and whose

only connection with the Guard is Title 5 civilian employment.

Title 10 Active Duty Members. These individuals are active duty Guard

members who are nevertheless subject to direct federal control under Title 10, which

generally applies to the armed forces of the United States. For the Oklahoma Na-

tional Guard, this includes the United States Fiscal and Property Officer. They are

subject to the vaccination compliance deadlines set by their respective services (e.g.,

November 2, 2021 for the Air Force, December 15, 2021 for the Army).

_________________________________

The Guard is an indispensable component of what military leaders call the

total force. The Army National Guard of the United States and the Air National

Guard of the United States are, by statute, among the “reserve components” of the

armed forces. 10 U.S.C. § 10101. “The purpose of each reserve component is to

provide trained units and qualified persons available for active duty in the armed

forces, in time of war or national emergency, and at such other times as the national

security may require, to fill the needs of the armed forces whenever more units and

persons are needed than are in the regular components.” 10 U.S.C. § 10102.

Because of the availability of the Guard for emergency response, Guard units

and their members can be, and have been, deployed domestically with little or no

notice. Other deployments, usually overseas, have been ordered with longer notice.

Since September 11, 2001, more than 30,000 Oklahoma Guard members have de-

ployed to more than sixteen countries in Europe, the Middle East, Africa and the

Pacific, with the majority of the deployments to Afghanistan and Iraq.8 It is also

noteworthy here that, in some states, the Guard has been called on extensively to

provide medical support to the civilian population throughout the pandemic.9 This

has included testing of prison inmates, Howell v. Walrath, 2021 WL 5881803, *2

(E.D. Va. Dec. 10, 2021) and otherwise “assist[ing] with incarcerated individuals

who had fallen ill.” Jones v. United States, 2021 WL 4264763, *3 (E.D. Mich. Sept.

20, 2021).

b. The Military Vaccination Mandate.

The military COVID vaccination mandate got started with a memorandum

from Secretary of Defense Lloyd J. Austin to his senior military leadership on Au-

gust 24, 2021. Doc. no. 26-2.10 Secretary Austin began with a statement that is

8 Oklahoma National Guard website. <https://ok.ng.mil/Home/About-Your-OKGuard/>

9 Decl. of Col. Tonya Rans, ¶ 12, doc. no. 37-5.

10 Plaintiffs’ contention, in their reply, doc. no. 39 at 1, 2 that EO 14043 provided the “impetus”

for the military mandate and that EO 14043 was issued to “effectuate” that military mandate is

incorrect (and, in any event, irrelevant). The military mandate was foreshadowed in a “Message

uncontested by plaintiffs in this action (and could never successfully be contested):

“To defend this Nation, we need a healthy and ready force.” The Secretary found

that “mandatory vaccination against coronavirus disease 2019 (COVID-19) is nec-

essary to protect the Force and defend the American people.” Consequently, the

Secretary directed the Service Secretaries to “immediately begin full vaccination of

all members of the Armed Forces under DoD authority on active duty or in the Ready

Reserve, including the National Guard, who are not fully vaccinated against

COVID-19.” (Emphasis added.) Vaccines usable to implement the mandate include

only those which had received “full licensure from the Food and Drug Administra-

tion (FDA), in accordance with FDA-approved labeling and guidance.” The Secre-

tary concluded by calling for “ambitious timelines for implementation” of the

vaccination mandate. Id.

On November 2, 2021, Governor Stitt wrote a letter to Secretary Austin, ask-

ing the Secretary to suspend the vaccine mandate as applied to the Oklahoma

Guard.11 The Governor asserted that the “mandate violates the personal freedoms

of many Oklahomans,” although he intimated no basis upon which taking the

COVID vaccine might be thought of as differing in some way from taking the other

nine FDA-approved vaccines Oklahoma Guard members are required to take.

Secretary Austin responded to the Governor’s November 2 letter by letter

dated November 29, 2021. Doc. no. 36-1. Citing the President’s authority over the

Guard under 32 U.S.C. § 110, the Secretary expressed his view–not credibly con-

tested by the plaintiffs in their motion or in any of the supporting materials–that to

to the Force" from Secretary Austin to all Department of Defense employees on August 9, 2021,

a full month before EO 14043 was issued. <https://media.defense.gov/2021/Aug/09/2002826254/-

1/-1/0/MESSAGE-TO-THE-FORCE-MEMO-VACCINE.PDF> The military mandate became

DoD policy on August 24, more than two weeks before EO 14043 was issued.

11 <https://oklahoma.gov/content/dam/ok/en/governor/documents/JKS-Ltr-to-SecDef-Austin-RE-

Covid19-Vaccinations_November-2-2021.pdf >

“maintain a healthy and ready military force capable of protecting the American

people, the immediate vaccination against COVID-19 is an essential military readi-

ness requirement for all components and units of the military, including the Okla-

homa National Guard.” The Secretary warned the Governor that failure to follow

the directions of the Service Secretaries with respect to vaccination requirements

“may lead to a prohibition on the member’s participation in drills and training con-

ducted under title 32 and jeopardize the member’s status in the National Guard.” Id.

Responding to resistance to the vaccine mandate as applied to the Guard, Sec-

retary Austin issued a memorandum to the Service Secretaries, the Chairman of the

Joint Chiefs of Staff and the Chief of the National Guard Bureau on November 30,

2021 directing them to address the failure to comply with the vaccine mandate “by

members of the non-federalized National Guard who remain unvaccinated.” Doc.

no. 9-3. The Secretary made it clear that unvaccinated Guard members must be fully

vaccinated “in order to participate in drills, training and other duty conducted under

title 32, U.S. Code.” Id. If any doubt had remained after the Secretary issued his

August 24 memorandum, it is fair to say that this document, taken together with the

preexisting (and long-standing) Department of Defense protocols for immunization

of service members,12 embodies the vaccine mandate at issue in this case.13 Imple-

mentation of the mandate as to non-federalized Guard members soon followed in the

form of a directive from the Secretary of the Air Force and an Army Fragmentary

Order.14

12 E.g., Army Regulation 40-562 and AFI 48-119-IP, Immunizations and Chemoprophylaxis for

the Prevention of Infectious Diseases (Headquarters, Departments of the Army, the Navy, the Air

Force and the Coast Guard, Washington, 7 October 2013) (herein: Immunization Rules). This

document has been concisely described as “the military’s vaccine policy.” Doe v. Austin, 2021

WL 5816632, *4 (N.D. Fla. Nov. 12, 2021) (unsuccessful challenge to military vaccine mandate).

13 Mulcahy decl., doc. no. 37-1, ¶ 12.

14 Mulcahy decl., doc. no. 37-1, ¶ 13.

Guard members who fail to comply with the mandate are subject to various

administrative and disciplinary actions. These include (i) disqualification from par-

ticipation in drills, training and other duty, (ii) loss of pay, (iii) withdrawal of the

Secretary’s consent for a member to serve under Title 32, and (iv) discharge.15

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.16 Nine vaccinations (now ten, with the COVID vaccination mandate) are

required for all service members.17 This includes statutorily-designated reserve

component service members such as members of the Guard.18 And as Secretary

Austin made clear in his August 24 memorandum, doc. no. 26-2, the entire gamut of

exemptions potentially applicable to other vaccinations may be invoked with respect

to the COVID vaccination mandate. This includes detailed provisions for medical

and administrative exemptions as well as religious accommodations.19 Disciplinary

action may not be taken for refusing the vaccine while a request for exemption is

pending.20 Thus, the pendency of an exemption request is the functional equivalent

15 Mulcahy decl., doc. no. 37-1, ¶¶ 14, 15, 16, 42; Declaration of Col. Charles Nichols, Jr., doc.

no. 37-3, ¶¶ 11 et seq. (Air Guard). Cf., Navy Seal 1 v. Biden, 2021 WL 5448970, *13 (M.D. Fla.

Nov. 22, 2021) (Consequences for refusal of vaccine “might include administrative separation or

discharge from the service.”).

16 Stanley Lemon et al., Protecting Our Forces: Improving Vaccine Acquisition and Availability

in the US Military, National Academies Press (2002). <https://perma.cc/E545-TQ9G>

17 Declaration of Col. Steven L. Bradley, doc. no. 37-2, ¶ 5.

18 Immunization Rules, ¶ 3-2 (b). See also, Department of Defense, DoD Instruction 6205.02-

DoD Immunization Program (July 23, 2019), p. 7, § 2.4 (requirement that “immunization policy,

operational use, clinical and administrative guidance, and related plans and programs pertaining

to all Reserve Component forces [be] consistent with the immunization policies of the Active

Components”). Consistent with 10 U.S.C. § 10101, “Reserve Components” is defined in Instruc-

tion 6205.02 to include the Army National Guard and the Air National Guard. Id., p. 18.

19 Immunization Rules, ¶ 2-6; Bradley decl., ¶¶ 11 et seq.; Nichols decl., ¶¶ 4, et seq. (Religious

Accommodation Request).

20 Nichols decl., ¶ 7.

of a preliminary injunction. See, Church v. Biden, 2021 WL 5179215, *1 (D.D.C.

Nov. 8, 2021). (There is no indication in any of the papers before the court that any

of the proposed anonymous plaintiffs have sought an exemption from the vaccina-

tion mandate.)

c. The Effects of COVID-19.

COVID-19 has killed over 800,000 Americans.21 Among active-duty service

members, there have been more than 209,000 new and repeat cases of COVID.22

Since July 2021, active-duty service members who are not fully vaccinated have had

a 14.6-fold increased risk of hospitalization due to COVID infection.23 According

to the Oklahoma State Department of Health, more than 689,000 cases of COVID

have been diagnosed in Oklahoma. Oklahoma’s cumulative hospitalization rate for

COVID-19 amounts to nearly 1 percent of the State’s population. More than 11,000

Oklahomans have died from COVID.24

As has been noted, in his November 29 letter to Governor Stitt, Secretary

Austin stated his conclusion, as the highest civilian official having direct responsi-

bility for the readiness of the Nation’s military forces, that compliance with the mil-

itary vaccination mandate “is an essential military readiness requirement for all

components and units of the military, including the Oklahoma National Guard.” The

21 Rans decl., ¶ 7.

22 Rans decl., ¶ 10.

23 Decl. of Maj. Scott Stanley, doc. no. 37-4, ¶ 16.

24 Oklahoma State Department of Health, Oklahoma COVID-19 Weekly Report, Dec. 12 - 18,

2021. <https://oklahoma.gov/content/dam/ok/en/covid19/documents/weekly-epi-report/2021/

2021.12.22%20Weekly%20Epi%20Report.pdf>

record before the court provides no basis upon which this court might second guess

that judgment.25

V. MERITS26

a. Statutory authorization for the defendants’ actions.

As has been noted, the moving brief does not cite or discuss any of the provi-

sions of Title 10 and Title 32 which have a direct bearing on the defendants’ author-

ity to promulgate and enforce the military vaccine mandate.27 Some, but far from

all, of the relevant statutory provisions are discussed in plaintiffs’ reply. With the

benefit of that reply, the court has carefully examined the applicable authorities with

a view to determining whether they grant the defendants the authority to promulgate

and enforce the vaccination mandate as to the Guard (federalized or not). The court

25 Although this motion turns more on issues of constitutional and statutory authority than on ques-

tions of military judgment, it is worth noting that the courts must “give great deference to the

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

military interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. at 24 (quoting from Goldman

v. Weinberger, 475 U.S. 503, 507 (1986)). “[T]he military’s decision to inoculate service members

plainly involves a military function.” Doe v. Austin, 2021 WL 5816632, *4.

26 Although the court has determined that the State of Oklahoma has standing, the court notes that

other courts have proceeded to the merits in vaccine mandate cases even without making a defin-

itive determination as to standing. Cf., Doe v. Austin, 2021 WL 5816632, *12, n. 18 (N.D. Fla.

Nov. 12, 2021) (Unsuccessful challenge to military vaccine mandate: “[I]n denying preliminary

injunctive relief, I have not determined that the court does have jurisdiction.”); Robert v. Austin,

No. 21-cv-2228-RM (D. Colo. Sept. 1, 2021), Order, doc. no. 12, at 6 (Motion for TRO against

vaccine mandate: “Assuming for present purposes that Plaintiffs have standing and that at least

one of their claims is justiciable, the Court finds they have failed to establish a clear and unequiv-

ocal right to a TRO as the matter now stands.”).

27 The court also notes that the Acting Oklahoma Adjutant General, Thomas H. Mancino, has filed

a declaration, providing his own detailed interpretation of the laws he thought to be applicable.

Doc. no. 27, filed December 15, 2021, refiled as doc. no. 36 on December 20, 2021. General

Mancino is not counsel of record in this case. Nevertheless, the court has carefully considered the

views he expressed in his declaration. To the extent that the court’s conclusions, as set forth in

this order, are inconsistent with General Mancino’s views of the matter, General Mancino’s views

are rejected.

has concluded that the defendants are acting well within the authority granted by the

Constitution and laws of the United States.

i. As to members of the Guard.

The Constitution grants to Congress the power to “provide for organizing,

arming, and disciplining, the Militia, and for governing such Part of them as may be

employed in the Service of the United States, reserving to the States respectively,

the Appointment of the Officers, and the Authority of training the Militia according

to the discipline prescribed by Congress.” U.S. Const., art. 1, § 8, cl. 16. The Guard

is the modern embodiment of “the Militia.”

Until such time as a unit of the Guard is “federalized,” that is, ordered into

federal service by the appropriate federal authority, the Commander in Chief of the

constituent units of the Oklahoma Guard (and of the Oklahoma Guard as a whole)

is the Governor. 44 O.S. 2011 § 23. The executive and administrative head of the

Oklahoma Guard is the Adjutant General. 44 O.S. 2011 § 21. In broad terms (and

at the risk of some oversimplification as to matters not relevant here), the command

authority of the Governor, the Adjutant General, and their subordinates includes

such matters as recruiting, training and pressing Guard units into service when nec-

essary within the boundaries of the state, while federal officers, not the least of whom

is the President, have the authority required to ensure that the Guard, as a statutory

reserve component of the U.S. armed forces, is ready to be pressed into federal ser-

vice without delay, and as seamlessly as possible, in case of need. This, generally,

is the allocation of responsibility and authority envisioned by the Constitution (states

responsible for “Appointment of the Officers, and the Authority of training the Mi-

litia” under “the discipline prescribed by Congress”) and envisioned as well by Con-

gress, which provides substantial funding for the Guard. 32 U.S.C. §§ 106, 107.

The constitutional allocation of responsibility for Guard matters has been

fleshed out by Congress. The beginning point, understandably relied upon by the

defendants, is 32 U.S.C. § 110: “The President shall prescribe regulations, and issue

orders, necessary to organize, discipline, and govern the National Guard.” In turn,

the Service Secretaries (as relevant here, the Secretary of the Army and the Secretary

of the Air Force) are empowered to “prescribe such regulations as the Secretary con-

siders necessary to carry out provisions of law relating to the reserve components

under the Secretary’s jurisdiction.” 10 U.S.C. § 10202(a).

Apropos of the constitutional grant of power to Congress to provide for “or-

ganizing” and “disciplining” the Militia, Congress has directed that “[t]he discipline,

including training, of the Army National Guard shall conform to that of the Army.

The discipline, including training, of the Air National Guard shall conform to that of

the Air Force.” 32 U.S.C. § 501. If the Guard fails to comply with federal standards,

the President is empowered to cut off its funding: “If, within a time fixed by the

President, a State fails to comply with a requirement of this title, or a regulation

prescribed under this title, the National Guard of that State is barred, in whole or in

part, as the President may prescribe, from receiving money or any other aid, benefit,

or privilege authorized by law.” 32 U.S.C. § 108. If a state should find federal

standards governing the National Guard to be too tight a fit, the state is free to es-

tablish (and pay for) its own, independent version. 32 U.S.C. § 109(c). Oklahoma

has not done so.

The upshot of all this is that, however wide-ranging the command authority

of the Governor and the Adjutant General may be within the four corners of their

own state (and the court does not presume to define the extent of that authority other

than as is strictly necessary for present purposes), it is unmistakably clear that the

intent of Congress, as expressed in the text of its enactments, is that the Guard and

its members will at all events be prepared, conformably to federal military standards,

to be ordered into federal service, deploying alongside members of the active duty

Army and Air Force, on little or no notice, anywhere in the world–which is exactly

what the Oklahoma Guard and its members have done, with great distinction, on

dozens of occasions.

From day one of the military vaccine mandate, the Guard was included. Doc.

no. 26-2 (Secretary Austin’s Aug. 24, 2021 memorandum). The Guard was included

(i) because “[t]o defend this Nation, we need a healthy and ready force,” id., and (ii)

because Department of Defense regulations leave no doubt that the department’s

vaccination protocols must, and do, apply as fully to the statutory reserve compo-

nents as to the active-duty forces. See, Army Regulation 40-562 and AFI 48-119-

IP, Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases

and DoD Instruction 6205.02-DoD Immunization Program, discussed in Part IV,

above. This, in the midst of a global pandemic, goes to the heart of “the discipline

prescribed by Congress.” U.S. Const., art. 1, § 8, cl. 16.28

ii. As to individuals who are employed both as Guard members

and as civilians

Dual status Guard members who may, as civil service employees, object to

EO 14043, are nonetheless subject, as service members, to the military mandate.

The military mandate applies as fully to them as to any other Guard members. See

Part V(a)(i), above.

iii. As to Guard personnel who are employed only in a civilian

capacity

28 The defendants elaborated on these authorities by citing 10 U.S.C. § 12641 as putting legal force

behind the “readiness standards” of the reserve components, the point being that if a Guard mem-

ber failed to meet the applicable “standards and qualifications” for retention, § 12641(a)(1), the

member would be subject to removal or other adverse action under § 12641(b). Brief in Op., doc.

no. 37, at 10. That argument appears to be legally sound, but that elaboration on the plain import

of the authorities discussed in detail here seems unnecessary.

It is not completely clear from the papers before the court whether this action

is intended to challenge the enforceability of the executive order as applied to indi-

viduals who are not Guard members and whose only connection with the Guard is

Title 5 civilian employment. (The line-up of Guard members who seek, as anony-

mous plaintiffs, to challenge the mandate does not include any individuals whose

only connection with the Guard is alleged to be Title 5 civilian employment.) Else-

where in this order, the court concludes that the law and the facts as to the military

mandate compel the conclusion that the challenge to that vaccination mandate, as

applied to the Guard, is not likely to be successful. To the extent that the issues

actually placed before the court may include a challenge to EO 14043 as applied to

civil service employees who are not Guard members, the court concludes that the

executive order is a permissible exercise of executive authority. The court so con-

cludes substantially for the reasons stated in Rydie v. Biden, 2021 WL 5416545 (D.

Md. Nov. 19, 2021) (unsuccessful challenge to EO 14043).

iv. The major questions doctrine is inapplicable.

Plaintiffs invoke the major questions doctrine in support of their challenge to

EO 14043. Motion, at 8. As is discussed in Part V(a)(iii), above, it is not clear that

plaintiffs intend to challenge the executive order as applied to individuals who have

no connection to the Guard other than Title 5 civilian employment. If such a chal-

lenge is intended, plaintiffs’ invocation of the major questions doctrine in support of

that challenge is rejected, substantially for the reasons recently stated by the Sixth

Circuit, in consolidated appellate proceedings in In re: MCP No. 165, __ F.4th __,

2021 WL 5989357, *6 (6th Cir. Dec. 17, 2021).

The case for application of the major questions doctrine to the military vaccine

mandate–as applied to the Guard or otherwise–is even weaker. The gist of the major

questions doctrine is that an agency’s regulatory action is unreasonable, and thus

unenforceable, if “it would bring about an enormous and transformative expansion

in [the agency’s] regulatory authority without clear congressional authorization.”

Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 324, (2014). Ignoring considerations

relating to the deference which courts should ordinarily accord to military judgments

(briefly discussed elsewhere in this order), any attempt to apply the major questions

doctrine to the promulgation of the military vaccine mandate fails for three fairly

obvious reasons. First, adding a tenth FDA-approved vaccine to the list of nine that

all service members are already required to take would hardly amount to “an enor-

mous and transformative expansion [of the] regulatory authority” the Secretary of

Defense already possesses. And, to say no more on this point, there is nothing

“transformative” about a force protection measure first conceived and enforced by

General George Washington when he required members of the Continental Army to

be inoculated against smallpox. See Part IV(b), above. Second, inclusion of the

Guard in the military vaccine mandate is not an expansion of anything. The Guard

has been included in military vaccination mandates for a long time. Id. Third, even

if we were to assume that the mandate is in some way novel in the sense contem-

plated by the major questions doctrine, it would be nothing more than a novel appli-

cation of long-established and congressionally-granted administrative authority. Id.

b. The Administrative Procedure Act.

The plaintiffs assert a claim under the Administrative Procedure Act (APA),

5 U.S.C. § 701, et seq. The APA provides for judicial review of final agency action.

5 U.S.C. §§ 702, 704. The plaintiffs’ APA claim is directed at the actions of the

President and the Safer Federal Workforce Task Force (Task Force). The Supreme

Court has determined that the President is not an agency within the meaning of the

APA. Franklin, 505 U.S. at 796, 800-01. And the Task Force is not an agency as

“it has no ‘substantial independent authority.’” Rodden v. Fauci, __ F.Supp.3d __,

2021 WL 5545234, at *3 (S.D. Tex. Nov. 27, 2021) (quoting Meyer v. Bush, 981

F.2d 1288, 1297 (D.C. Cir. 1993)). Aside from that, the Task Force guidance is not

final agency action reviewable under the APA. Id. Consequently, in the absence of

any final agency action, the plaintiffs’ APA claim cannot succeed.29

c. Constitutional limitations.

The plaintiffs invoke several constitutional doctrines in support of their mo-

tion. Motion, at 17-24. Their reliance on those doctrines is misplaced. Extended

discussion is not required.

i. The Tenth Amendment.

The Tenth Amendment states that “[t]he powers not delegated to the United

States by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.”

In 2010, the Supreme Court told us that “[v]irtually by definition,” the powers

specifically enumerated in Article I “are not powers that the Constitution ‘reserved

to the States.’” United States v. Comstock, 560 U.S. 126, 144 (2010). Thus, “[i]f a

power is delegated to Congress in the Constitution, the Tenth Amendment expressly

disclaims any reservation of that power to the States.” New York v. United States,

505 U.S. 144, 156 (1992). As discussed in Parts IV and V(a), above, the power to

impose the vaccination mandate at issue here is bottomed on an express Article I

29 To the extent the plaintiffs challenge the military vaccination directive under the APA, the court

concludes that the plaintiffs have not shown they are likely to succeed on the merits. The plaintiffs

have failed to demonstrate the vaccination mandate is not authorized by law as discussed in this

order. In addition, they have failed to demonstrate that the agency action was arbitrary or capri-

cious. In so finding, the court is cognizant of the substantial deference accorded to administrative

decisions, see, Dep’t of Commerce v. New York, 139 S.Ct. at 2569 (2019), and that “the lack of

competence on the part of the courts is marked” in the area of regulating the military. See, Rostker

v. Goldberg, 453 U.S. 57, 65 (1981); see also, Doe v. Austin, 2021 WL 5816632, *4 (finding

plaintiffs had not shown a likelihood of success on the merits of their APA claim challenging the

military vaccination mandate).

grant of power to Congress (e.g., “to the United States,” in the words of the Tenth

Amendment) to “provide for organizing, arming, and disciplining, the Militia, and

for governing such Part of them as may be employed in the Service of the United

States, reserving to the States respectively, the Appointment of the Officers, and the

Authority of training the Militia according to the discipline prescribed by Congress.”

U.S. Const., art. 1, § 8, cl. 16. This express grant of power to Congress (importantly,

accompanied by an equally express allocation of responsibilities between federal

and state authorities) leaves no room to call the Tenth Amendment into service by

default to prescribe an allocation of power the Framers omitted to expressly deline-

ate.30

ii. Non-delegation.

Invoking the non-delegation principle (but with very little developed argu-

ment), plaintiffs argue that “the mandate also runs afoul of the separation of powers,

which does not permit Congress to delegate the momentous question of vaccine

mandate to the Executive.” Motion, at 20. Again, “the mandate” plaintiffs address

in this argument is EO 14043, not the military mandate (either in general or as ap-

plied to the Guard). As discussed in Parts IV(b) and V(a)(i), above, the “delegation”

of the power to regulate the armed forces, including the Guard, is express, not im-

plied (or usurped).

The Supreme Court has “‘almost never felt qualified to second-guess Con-

gress regarding the permissible degree of policy judgment that can be left to those

executing or applying the law.’” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,

30 For the same reasons, plaintiffs’ reliance on Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952) as being “outcome-determinative,” motion, at 18, is equally misplaced. In Youngs-

town, President Truman’s problem was that Congress had not authorized him to seize, by executive

order, the nation’s steel mills. The President and the Secretary of Defense have no such problem–

lack of statutory authorization–in the case at bar.

474–75 (2001) (quoting Scalia, J., dissenting, in Mistretta v. United States, 488 U.S.

361, 416 (1989)). Onto that degree of deference, articulated in a civilian context,

the court superimposes the deference due Congress when it (i) makes “Rules for the

Government and Regulation of the land and naval Forces,” U.S. Const., art. 1, § 8,

cl. 14, (ii) determines the breadth of the discretion to be granted to the President and

his military leadership in carrying out “the discipline prescribed by Congress,” U.S.

Const., art. 1, § 8, cl. 16, and (iii) empowers the Executive to “prescribe regulations,

and issue orders, necessary to organize, discipline, and govern the National Guard,”

32 U.S.C. § 110. Plaintiffs’ non-delegation argument is unpersuasive.

iii. The Fourth Amendment.

Plaintiffs argue that the “vaccine mandate is an unconstitutional search and

seizure of the person under the Fourth Amendment. In its search and seizure of

unvaccinated federal employees, it impermissibly restrains the liberty of the person.”

Motion, at 22. These arguments both misconceive and trivialize the Fourth Amend-

ment.

The Fourth Amendment argument invites, first, a step back to look at the for-

est instead of the trees. Service members have, for a very long time, been required

(on pain of discharge for failure to comply with lawful orders) to take vaccinations

deemed necessary in the interest of military readiness. Yet plaintiffs do not cite a

single Fourth Amendment case questioning, or even addressing, the power of the

government, as an employer (civilian or military), to require vaccinations. That lack

of supporting authority is unsurprising.

A governmental action alleged to constitute a Fourth Amendment search is

not a “search” in the sense required by that amendment unless it is “an attempt to

find something or to obtain information.” United States v. Jones, 565 U.S. 400, 408,

n. 5 (2012). That is not this case.

That leaves “seizure.” Understandably, almost all Fourth Amendment “sei-

zure” cases arise in the criminal context. A seizure of a person, for purposes of the

Fourth Amendment, occurs when “the officer, by means of physical force or show

of authority, terminates or restrains [a person’s] freedom of movement.” Brendlin

v. California, 551 U.S. 249, 254 (2007) (cleaned up). Deprivation of freedom (usu-

ally freedom of movement) is the key. Employment-related “deprivations” of free-

dom happen every day. They are not coercive in the sense required by the Fourth

Amendment and are not actionable as “seizures.” Guard members “are not being

coerced to give up a fundamental right since there is no fundamental right to refuse

vaccination.” Smith v. Biden, 2021 WL 5195688, at *8 (D.N.J. Nov. 8, 2021). The

result is the same with a traditional (and narrower) seizure analysis. Plaintiffs argue

that “vaccination is impossible unless a person’s movement is restrained.” Reply, at

10, n. 3. If there has been a deprivation of freedom of movement, the brevity of the

encounter becomes important. Terry v. Ohio, 392 U.S. 1 (1968). Thus, for instance,

“a routine traffic stop” is a “relatively brief encounter” which does not amount to a

seizure sufficient to violate the Fourth Amendment. Knowles v. Iowa, 525 U.S. 113,

117 (1998). An involuntary encounter as brief as the length of time it takes to roll

up a sleeve and receive a vaccination will not suffice to constitute a seizure within

the traditional and fairly narrow meaning of “seizure” as that term is used in the

Fourth Amendment.

The military vaccination mandate, as applied to the Guard, does not amount

to a Fourth Amendment seizure.

iv. The Take Care Clause.

The Constitution requires that the President “take Care that the Laws be faith-

fully executed.” U.S. Const., art. II, § 3. Without citing a single case finding a

violation of the Take Care clause (and research by the undersigned reveals no such

case), plaintiffs argue that defendants are required to obey the law–in this instance,

several civil service-related statutes–and have failed to do so. Motion, at 23.

The obligation imposed on the President under the Take Care clause “is purely

executive and political. An attempt on the part of the judicial department of the

government to enforce the performance of such duties by the President might be

justly characterized, in the language of Chief Justice Marshal, as ‘an absurd and ex-

cessive extravagance.’” State of Mississippi v. Johnson, 71 U.S. 475, 499 (1866).

Aside from that, and to the extent that the argument under the heading of the Take

Care clause has any meaning at all in the context of the issues in this case, it is really

nothing more than an encapsulation of all of the substantive arguments the court has

already addressed and rejected in this order. Plaintiffs’ Take Care clause argument

is unpersuasive.

VI. THE REMAINING PRELIMINARY INJUNCTION FACTORS

As has been noted, where a movant fails to establish a likelihood of success

on the merits, it is unnecessary to address the remaining prerequisites to granting a

preliminary injunction. Warner v. Gross, 776 F.3d at 736.

That said, on the issue of whether the public interest would be served by grant-

ing an injunction, the court would be hard-put to find that the public interest would

be served by entry of an order prohibiting the implementation of a vaccine mandate

which adds one FDA-approved vaccine to the list of nine that all service members

are already required to take–that tenth vaccine being the one which has been shown

to be remarkably effective in mitigating the effects of the pandemic which has af-

fected millions of Americans, including thousands of service members. On that

score, the court agrees with Judge Kolar-Kotelly’s conclusion, in her recent decision

declining to enjoin the military vaccination mandate, that “the public’s interest in

military readiness outweighs the interests claimed by the Plaintiffs.” Church v.

Biden, 2021 WL 5179215, *18.

VII. CONCLUSION

The Oklahoma Adjutant General asserts, with the concurrence of the Gover-

nor, that, with the vaccine mandate, “the Executive Branch are aggressively en-

croaching on the sovereignty, laws, public policy, and resources of the State of

Oklahoma.” Doc. no. 36, at 6. This bespeaks a fundamental misapprehension as to

the allocation of authority over the Guard as a specifically-designated reserve com-

ponent of the armed forces of the United States.

The court has carefully considered the relevant constitutional, statutory and

regulatory authorities and has concluded, quite readily, that the military vaccination

mandate is valid and enforceable as applied to the Guard and that, consequently, the

Governor and his co-plaintiffs have not demonstrated a likelihood of success on the

merits. The motion for preliminary injunction, doc. no. 9, is accordingly DENIED.

Having denied the motion, the court cannot but note the potential conse-

quences, for individual Guard members, of failure to comply with the vaccine man-

date. Those consequences range (among other possibilities) from loss of periodic

pay to involuntary separation from the Guard. Loss of one or two paychecks is one

thing, serious though that may be in individual cases. What the court cannot ignore

is the potentially devastating effect of involuntary separation (either as a result of

direct action or as a result of continuing loss of pay), especially where, as appears to

be the case here, the individual non-compliant Guard members did not have the ben-

efit of well-informed leadership at the highest level of the Oklahoma Guard. The

court strongly urges the defendants to give every consideration to providing a brief

grace period–to facilitate prompt compliance with the vaccination mandate–before

directly or indirectly taking action which would end the military careers of any Ok-

lahoma Guard members.

Dated this 28 day of December, 2021.

STEPHEN P. FRIOT

UNITED STATES DISTRICT JUDGE

6p006.docx

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