Amicus Curiae Brief — Jonathan Dunn, Applicant v. Lloyd J. Austin III, Secretary of Defense, et al.
Supreme Court briefApr 12, 2022
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No. 21A599
IN THE SUPREME COURT OF THE UNITED STATES
LT. COL. JONATHAN DUNN,
Applicant,
v.
LLOYD J. AUSTIN, III, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF
DEFENSE; FRANK KENDALL, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY
OF THE AIR FORCE; COL. GREGORY HAYNES, IN HIS OFFICIAL CAPACITY;
MAJ. GEN. JEFFREY PENNINGTON, IN HIS OFFICIAL CAPACITY;
UNITED STATES DEPARTMENT OF DEFENSE,
Respondents.
MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND TO SUBMIT
PAPER COPIES ON 8.5-BY-11-INCH PAPER OF THE STATES OF
MISSISSIPPI, ALABAMA, ALASKA, ARIZONA, ARKANSAS, FLORIDA,
GEORGIA, INDIANA, KANSAS, KENTUCKY, LOUISIANA, MISSOURI,
MONTANA, NEBRASKA, NEW HAMPSHIRE, NORTH DAKOTA,
OKLAHOMA, SOUTH CAROLINA, TEXAS, UTAH, VIRGINIA,
WEST VIRGINIA, AND WYOMING
LYNN FITCH
Attorney General
WHITNEY H. LIPSCOMB
Deputy Attorney General
SCOTT G. STEWART
Solicitor General
Counsel of Record
JUSTIN L. MATHENY
JOHN V. COGHLAN
Deputy Solicitors General
MISSISSIPPI ATTORNEY
GENERAL’S OFFICE
P.O. Box 220
Jackson, Mississippi 39205-0220
scott.stewart@ago.ms.gov
(601) 359-3680
Counsel for Amici Curiae
The States of Mississippi, Alabama, Alaska, Arizona, Arkansas, Florida,
Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, New
Hampshire, North Dakota, Oklahoma, South Carolina, Texas, Utah, Virginia, West
Virginia, and Wyoming respectfully move for leave to file a brief as amici curiae in
support of applicant and the Emergency Application for Injunction Pending Appeal
and Certiorari or, in the Alternative, for Certiorari Before Judgment, without 10 days’
notice to the parties of amici’s intent to file. The States also respectfully move for
leave to file this brief on 8.5-by-11-inch paper rather than in booklet form.
Given the expedited nature of the application—which was filed yesterday—it
was infeasible for the States to provide 10 days’ notice of their intent to file. Counsel
of record for all parties received notice on Friday, April 8, 2022, of undersigned
counsel’s intent to file this brief. Applicant consents to the filing of this brief;
respondents take no position. In light of the expedited proceedings and emergency
nature of the application, the States also ask that the Court accept their brief in 8.5by-11-inch paper rather than booklet form.
Granting leave to the States and accepting their brief is further warranted
because the States have a strong interest in this case and have important experience
that will help the Court in ruling on the application. Amici regularly confront the
challenge presented in this case, where a sincere claim of religious freedom competes
with powerful government interests. Every day, amici pursue such interests—
managing prisons, maintaining public order, enforcing drug laws, policing, quelling
violence, overseeing public property, and more. At the same time, amici are
committed to protecting religious freedom. All amici respect the restrictions imposed
by the Free Exercise Clause, several amici have enacted statutes analogous to the
federal Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA), and
amici regularly defend religious liberty in litigation.
1
Amici know well the challenges that come with these competing commitments,
and so amici respect the challenge the federal government faces in this case. In areas
of particularly sensitive government interests, amici agree that courts should respect
the professional judgments of experienced officials. In military affairs, for example,
military officials exercising professional judgment are due respect for their decisions.
The same holds true at the state level. The prison-safety decisions of state
correctional authorities, for example, deserve respect.
But even when government interests are compelling, religious exercise
demands respect too. The amici States have a powerful interest in holding true the
balance between pursuing important state interests and protecting sincerely held
religious beliefs. Respect for policymakers’ judgments should not be permitted to
mask abuse of religious freedom.
The amici States have still further experience of special relevance to this case.
For years now, the States have managed the COVID-19 pandemic in their own
borders. The States have seen what works in managing COVID-19, what does not
work, and how fundamental freedoms—such as religious exercise—can flourish even
in the pandemic. And over the past year, amici have challenged many of the federal
government’s major policies addressing the pandemic. The States know well the
federal government’s COVID-19 response. That response has been beset by tenuous
claims of legal authority, policies adopted despite the evidence undercutting them,
and a willingness to override basic liberties. The federal government has often
claimed deference in urging courts to let its policies stand. It invokes deference again
in this case.
This brief is submitted in light of the amici States’ experience defending
religious freedom, promoting government interests that may compete with religious
exercise, managing COVID-19 within their borders, and successfully challenging the
2
legality of the Administration’s response to the pandemic. The States’ brief explains
that the Administration’s actions over the past year should—even in the sensitive
context of military affairs—make this Court skeptical of its claims for deference.
The States therefore respectfully ask that the Court grant leave to file this
brief and to submit it in 8.5-by-11-inch paper.
Respectfully submitted.
LYNN FITCH
Attorney General
WHITNEY H. LIPSCOMB
Deputy Attorney General
SCOTT G. STEWART
Solicitor General
Counsel of Record
JUSTIN L. MATHENY
JOHN V. COGHLAN
Deputy Solicitors General
MISSISSIPPI ATTORNEY
GENERAL’S OFFICE
P.O. Box 220
Jackson, MS 39205-0220
scott.stewart@ago.ms.gov
(601) 359-3680
Counsel for Amici Curiae
April 12, 2022
3
No. 21A599
IN THE SUPREME COURT OF THE UNITED STATES
LT. COL. JONATHAN DUNN,
Applicant,
v.
LLOYD J. AUSTIN, III, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF
DEFENSE; FRANK KENDALL, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY
OF THE AIR FORCE; COL. GREGORY HAYNES, IN HIS OFFICIAL CAPACITY;
MAJ. GEN. JEFFREY PENNINGTON, IN HIS OFFICIAL CAPACITY;
UNITED STATES DEPARTMENT OF DEFENSE,
Respondents.
BRIEF OF THE STATES OF MISSISSIPPI, ALABAMA, ALASKA, ARIZONA,
ARKANSAS, FLORIDA, GEORGIA, INDIANA, KANSAS, KENTUCKY,
LOUISIANA, MISSOURI, MONTANA, NEBRASKA, NEW HAMPSHIRE,
NORTH DAKOTA, OKLAHOMA, SOUTH CAROLINA, TEXAS, UTAH,
VIRGINIA, WEST VIRGINIA, AND WYOMING AS AMICI CURIAE IN
SUPPORT OF APPLICANT AND THE EMERGENCY APPLICATION
LYNN FITCH
Attorney General
WHITNEY H. LIPSCOMB
Deputy Attorney General
SCOTT G. STEWART
Solicitor General
Counsel of Record
JUSTIN L. MATHENY
JOHN V. COGHLAN
Deputy Solicitors General
MISSISSIPPI ATTORNEY
GENERAL’S OFFICE
P.O. Box 220
Jackson, Mississippi 39205-0220
scott.stewart@ago.ms.gov
(601) 359-3680
Counsel for Amici Curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... ii
INTRODUCTION AND INTEREST OF AMICI CURIAE........................................... 1
SUMMARY OF ARGUMENT ....................................................................................... 2
REASONS FOR GRANTING THE APPLICATION .................................................... 3
I.
Deference Is Warranted For Military Decisions On Military Matters,
But Policymakers’ Actions Can Erode The Deference That Policies
Governing The Military Might Otherwise Enjoy .................................... 3
II.
The Administration’s Actions Over The Past Year Undermine Its Claim
To Deference In This Case ....................................................................... 6
CONCLUSION............................................................................................................. 20
TABLE OF AUTHORITIES
Page(s)
Cases
Alabama Ass’n of Realtors v. HHS,
141 S. Ct. 2320 (2021) .......................................................................................... 7, 8
Alabama Ass’n of Realtors v. HHS,
141 S. Ct. 2485 (2021) (per curiam) ................................................................... 8, 12
Alabama Ass’n of Realtors v. HHS,
539 F. Supp. 3d 211 (D.D.C. 2021) .......................................................................... 7
Austin v. U.S. Navy Seals 1-26,
— S. Ct. —, No. 21A477,
2022 WL 882559 (U.S. Mar. 25, 2022)........................................................... 5, 6, 20
Biden v. Missouri,
142 S. Ct. 647 (2022) (per curiam) ......................................................................... 14
BST Holdings, LLC v. OSHA,
17 F.4th 604 (5th Cir. 2021) ................................................................. 12, 15, 16, 18
Feds for Medical Freedom v. Biden,
25 F.4th 354 (5th Cir. 2022) (per curiam) ............................................................. 13
Feds for Medical Freedom v. Biden,
— F.4th —, No. 22-40043,
2022 WL 1043909 (5th Cir. Apr. 7, 2022) .............................................................. 14
Feds for Medical Freedom v. Biden,
— F. Supp. 3d —, No. 3:21-CV-356,
2022 WL 188329 (S.D. Tex. Jan. 21, 2022)...................................................... 13, 14
Florida v. HHS,
19 F.4th 1271 (11th Cir. 2021) ............................................................................... 14
Georgia v. Biden,
— F. Supp. 3d —, No. 1:21-CV-163,
2021 WL 5779939 (S.D. Ga. Dec. 7, 2021) ............................................................. 13
Gilligan v. Morgan,
413 U.S. 1 (1973) ...................................................................................................... 4
Goldman v. Weinberger,
475 U.S. 503 (1986) ........................................................................................ 3, 4, 17
Holt v. Hobbs,
574 U.S. 352 (2015) .............................................................................................. 5, 6
ii
Kentucky v. Biden,
23 F.4th 585 (6th Cir. 2022) ................................................................................... 13
Louisiana v. Becerra,
— F. Supp. 3d —, No. 3:21-CV-04370,
2022 WL 16571 (W.D. La. Jan. 1, 2022) ................................................................ 14
National Federation of Independent Business v. OSHA,
142 S. Ct. 661 (2022) (per curiam) ............................................................. 12, 13, 15
Ramirez v. Collier,
— U.S. —, 2022 WL 867311 (U.S. Mar. 24, 2022) ........................................ 5, 6, 19
Texas v. Becerra,
— F. Supp. 3d —, No. 5:21-CV-300,
2021 WL 6198109 (N.D. Tex. Dec. 31, 2021) ......................................................... 14
U.S. Navy Seals 1-26 v. Biden,
— F. Supp. 3d —, No. 4:21-CV-01236-O,
2022 WL 34443 (N.D. Tex. Jan. 3, 2022) ................................................................. 5
Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7 (2008) ...................................................................................................... 3
Statutes
5 U.S.C. § 3301 ....................................................................................................... 10, 11
5 U.S.C. § 3302 ............................................................................................................. 10
5 U.S.C. § 7301 ............................................................................................................. 10
10 U.S.C. § 774 ............................................................................................................... 4
29 U.S.C. § 651 et seq. .................................................................................................. 10
29 U.S.C. § 655 ............................................................................................................. 10
40 U.S.C. § 101 ............................................................................................................. 10
40 U.S.C. § 101 et seq. .................................................................................................. 10
42 U.S.C. § 1395x ......................................................................................................... 14
42 U.S.C. § 2000bb et seq. .............................................................................................. 1
42 U.S.C. § 2000cc et seq................................................................................................ 5
Executive Orders
Executive Order 13999,
Protecting Worker Health and Safety,
86 Fed. Reg. 7211 (Jan. 21, 2021) ............................................................................ 7
iii
Executive Order 14042,
Ensuring Adequate COVID Safety Protocols for Federal Contractors,
86 Fed. Reg. 50985 (Sept. 9, 2021)................................................... 9, 10, 11, 13, 16
Executive Order 14043,
Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,
86 Fed. Reg. 50989 (Sept. 9, 2021)......................................................... 9, 10, 13, 16
Miss. Executive Order 1463
(Mar. 24, 2020)........................................................................................................ 19
Rulemakings
COVID-19 Vaccination and Testing; Emergency Temporary Standard,
86 Fed. Reg. 61402 (Nov. 5, 2021) ....................................... 9, 10, 11, 12, 13, 15, 16
COVID-19 Vaccination and Testing; Emergency Temporary Standard,
87 Fed. Reg. 3928 (Jan. 26, 2022) ......................................................................... 13
Medicare and Medicaid Programs;
Omnibus COVID-19 Health Care Staff Vaccination,
86 Fed. Reg. 61555 (Nov. 5, 2021) ............................................................... 9, 14, 16
Occupational Exposure to COVID-19; Emergency Temporary Standard,
86 Fed. Reg. 32376 (June 21, 2021) ......................................................... 7, 8, 10, 16
Vaccine and Mask Requirements To Mitigate the Spread of
COVID-19 in Head Start Programs,
86 Fed. Reg. 68052 (Nov. 30, 2021) ................................................. 9, 12, 13, 14, 16
Other Authorities
CDC COVID Data Tracker .......................................................................................... 16
H.R. Rep. No. 103-88 ................................................................................................. 4, 5
Oral Argument Transcript,
National Federation of Independent Business v. OSHA,
142 S. Ct. 661 (2022) .............................................................................................. 15
Callie Patteson,
Biden chief apparently admits vaccine mandate
‘ultimate work-around,’
N.Y. Post (Sept. 10, 2021). ..................................................................................... 15
S. Rep. No. 103-111 ........................................................................................................ 5
U.S. Department of Defense,
Coronavirus: DOD Response ........................................................................... 17, 18
iv
U.S. Air Force,
DAF COVID-19 Statistics—April 5, 2022 ............................................................. 18
The White House,
Press Briefing by White House COVID-19 Response Team
and Public Health Officials
(Dec. 17, 2021) ........................................................................................................ 12
The White House,
Remarks by President Biden Laying Out the Next Steps
in Our Effort to Get More Americans Vaccinated and
Combat the Spread of the Delta Variant
(July 29, 2021) .......................................................................................................... 8
The White House,
Remarks by President Biden on Fighting the
COVID-19 Pandemic
(Sept. 9, 2021) ........................................................................................................... 9
The White House,
Remarks by President Biden After Meeting with
Members of the COVID-19 Response Team
(Dec. 16, 2021) ........................................................................................................ 12
The White House,
Remarks of President Joe Biden—
State of the Union Address As Prepared for Delivery
(Mar. 1, 2022).................................................................................................... 16, 17
v
INTRODUCTION AND INTEREST OF AMICI CURIAE *
Amici curiae are the States of Mississippi, Alabama, Alaska, Arizona,
Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri,
Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina,
Texas, Utah, Virginia, West Virginia, and Wyoming. Amici regularly confront the
challenge presented in this case, where a sincere claim of religious freedom competes
with powerful government interests. Every day, amici pursue such interests—
managing prisons, maintaining public order, enforcing drug laws, policing, quelling
violence, overseeing public property, and more. At the same time, amici are
committed to protecting religious freedom. All amici respect the restrictions imposed
by the Free Exercise Clause, several amici have enacted statutes analogous to the
federal Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA), and
amici regularly defend religious liberty in litigation.
Amici know well the challenges that come with these competing commitments,
and so amici respect the challenge the federal government faces in this case. In areas
of particularly sensitive government interests, amici agree that courts should respect
the professional judgments of experienced officials. In military affairs, for example,
military officials exercising professional judgment are due respect for their decisions.
The same holds true at the state level. The prison-safety decisions of state
correctional authorities, for example, deserve respect.
But even when government interests are compelling, religious exercise
demands respect too. The amici States have a powerful interest in holding true the
balance between pursuing important state interests and protecting sincerely held
religious beliefs. Respect for policymakers’ judgments should not be permitted to
mask abuse of religious freedom.
* Counsel of record for all parties received notice of undersigned counsel’s intent to file this
brief. Applicant consents to the filing of this brief; respondents take no position.
1
The amici States have still further experience of special relevance to this case.
For years now, the States have managed the COVID-19 pandemic in their own
borders. The States have seen what works in managing COVID-19, what does not
work, and how fundamental freedoms—such as religious exercise—can flourish even
in the pandemic. And over the past year, amici have challenged many of the federal
government’s major policies addressing the pandemic. The States know well the
federal government’s COVID-19 response. That response has been beset by tenuous
claims of legal authority, policies adopted despite the evidence undercutting them,
and a willingness to override basic liberties. The federal government has often
claimed deference in urging courts to let its policies stand. It invokes deference again
in this case.
This brief is submitted in light of the amici States’ experience defending
religious freedom, promoting government interests that may compete with religious
exercise, managing COVID-19 within their borders, and successfully challenging the
legality of the Administration’s response to the pandemic. The brief explains that the
Administration’s actions over the past year should—even in the sensitive context of
military affairs—make this Court skeptical of its claims for deference.
SUMMARY OF ARGUMENT
This Court should discount the Administration’s claim to deference for its
decision refusing to accommodate Lt. Col. Dunn’s sincerely held religious belief.
I. This Court has at times afforded deference to military authorities on military
matters. The Administration claims that it is due such deference here. Deference to
military authorities makes sense when those authorities’ judgments reflect
trustworthy, non-political assessments of sensitive matters within their unique
expertise. But policymakers can, through their actions, erode those assumptions and
the deference that might otherwise be due.
2
II. This Court should discount the Administration’s claim to deference in this
case. The Administration’s COVID-19 response—particularly its package of vaccine
mandates—and the facts of Lt. Col. Dunn’s case undermine its claim for deference.
In the past year, courts have recognized the overreaching and flawed claims of legal
authority underlying the Administration’s response, the tension between its policies
and the facts, and its inconsistent statements and actions that undercut its claims of
good faith and suggest pretext. These recurring features of the Administration’s
response, evident again in this case, provide a solid basis to believe that its actions
toward Lt. Col. Dunn reflect political motivations rather than military judgment.
REASONS FOR GRANTING THE APPLICATION
I.
Deference Is Warranted For Military Decisions On Military Matters,
But Policymakers’ Actions Can Erode The Deference That Policies
Governing The Military Might Otherwise Enjoy.
In some contexts, “courts must give great deference to the professional
judgment of military authorities concerning the relative importance of a particular
military interest.” Goldman v. Weinberger, 475 U.S. 503, 507 (1986). But such
deference rests on the presumption that military authorities are making judgments
based on trustworthy, non-political assessments within their unique expertise. When
policymakers’ actions erode that presumption, they erode any claim for deference.
“[M]ilitary interests do not always trump other considerations.” Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 26 (2008). The deference afforded
to military officials stems from a recognition that “to accomplish its mission the
military must foster instinctive obedience, unity, commitment, and esprit de corps.”
Goldman, 475 U.S. at 507. This Court has accordingly afforded deference to decisions
made by “military authorities” concerning a “military interest.” Ibid. In Goldman, a
case decided before RFRA’s enactment, this Court upheld Air Force regulations on
uniform dress that prevented the petitioner from wearing a yarmulke. Id. at 504, 510.
3
In recognizing that deference to the military was warranted, this Court noted that
the policy was put in place by “the appropriate military officials” who were exercising
“their considered professional judgment.” Id. at 509. The Court thus did not question
the military’s stated need for uniformity—though it exercised judgment in concluding
that the policies “reasonably and evenhandedly regulate dress” in the interest of that
stated need. Id. at 510, superseded by statute, 10 U.S.C. § 774.
Cabining deference to military decisions by military authorities makes sense.
“The complex, subtle, and professional decisions as to the composition, training,
equipping, and control of a military force are essentially professional military
judgments,” even though such judgments are ultimately subject to civilian control
through elected leaders. Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see id. at 10-12
(holding that a question concerning the proper training, equipping, and control of the
Ohio National Guard was a non-justiciable political question). Though civilian
leaders
may
exercise
their
own
judgment
based
on
the
expertise
and
recommendations of their professional military advisors, it is military professionals
themselves who can fully appreciate the “complex” and “subtle” decisions that must
be made. Policy decisions that apply to the military but are made without that
professional advice, however, are like the decisions made by those same policymakers
in non-military areas.
Congress recognized the limits of military deference when enacting RFRA.
Nothing in RFRA’s text or structure removes the military from the obligation to
respect religious exercise. RFRA’s history reflects that this was no accident. The
House Report did recognize that “religious liberty claims in the context of prisons and
the military present far different problems for the operation of those institutions than
they do in civilian settings.” H.R. Rep. No. 103-88 at 8. But, the Report said, even in
the military context, “[s]eemingly reasonable regulations” that are based on
4
“speculation,” “exaggerated fears,” or “thoughtless policies” “cannot stand.” Ibid. The
Senate Report reflects a similar understanding that religious liberty can and should
be protected in the military: “The committee is confident that the bill will not
adversely impair the ability of the U.S. military to maintain good order, discipline,
and security.” S. Rep. No. 103-111 at 12.
This Court has recognized limits on claims of deference in the similarly
sensitive, government-interest-laden prison context under the Religious Land Use
and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., RFRA’s “sister statute.”
Ramirez v. Collier, — U.S. —, 2022 WL 867311, at *8 (U.S. Mar. 24, 2022). In
Ramirez, this Court recognized that it was “not enough” to simply “defer to [officials’]
determination” about when an individual’s religious liberties must give way,
particularly where history provides good reason to question that determination. Id.
at *10; see also id. at *18 (Kavanaugh, J., concurring) (“As the Court explains,
experience matters in assessing whether less restrictive alternatives could still
satisfy the State’s compelling interest.”). And in Holt v. Hobbs, 574 U.S. 352 (2015),
this Court rejected the proposition that “respect” for prison officials’ expertise “in
running prisons” calls for “unquestioning acceptance” of their claims that prison
management requires curbing religious liberty. Id. at 364.
Recent litigation culminating in this Court’s order in Austin v. U.S. Navy Seals
1-26, — S. Ct. —, No. 21A477, 2022 WL 882559 (U.S. Mar. 25, 2022), illustrates these
points. There, the district court’s injunction both protected the servicemember
respondents from discipline or discharge due to their unvaccinated status and also
prevented military professionals from considering respondents’ vaccination status
when making deployment, assignment, and other operational decisions. Id. at *1;
U.S. Navy Seals 1-26 v. Biden, — F. Supp. 3d —, No. 4:21-CV-01236-O, 2022 WL
34443, at *14 (N.D. Tex. Jan. 3, 2022). This Court granted the federal government’s
5
request to stay the latter part of the injunction while leaving in place the first part,
which the federal government notably had not asked to be stayed. U.S. Navy Seals 126, 2022 WL 882559, at *1; see Application for a Partial Stay of the Injunction Issued
by the United States District Court for the Northern District of Texas 2-3, Austin v.
U.S. Navy Seals 1-26, 2022 WL 882559 (U.S. Mar. 25, 2022) (No. 21A477) (explaining
that the government was not seeking “to stay the portion of the injunction that
protects respondents from discipline or discharge for remaining unvaccinated”). The
federal government had a stronger claim to the stay it sought: COVID-19 vaccination
status could be more relevant to military decisions—such as operational decisions
concerning Special Forces units whose deployment may require close-quarters
operation—than to decisions in some other contexts. See U.S. Navy Seals 1-26, 2022
WL 882559, at *1 (Kavanaugh, J., concurring) (“[T]he Navy has an extraordinarily
compelling interest in maintaining strategic and operational control over the
assignment and deployment of all Special Warfare personnel—including control over
decisions about military readiness. And no less restrictive means would satisfy that
interest in this context.”) (emphases added). But different considerations would apply
to basic decisions to discipline or discharge servicemembers because they requested
religious exemptions or are unvaccinated. As in Ramirez and Holt, when facing that
question, courts must squarely consider the competing interests without
“unquestioning acceptance” of the government’s decision. Holt, 574 U.S. at 364.
II.
The Administration’s Actions Over The Past Year Undermine Its
Claim To Deference In This Case.
In defending its refusal to afford Lt. Col. Dunn a religious exemption, the
Administration has invoked the deference afforded to military authorities on military
matters. It cites the circumstances presented by COVID-19 and the military’s “vital
interest” in maintaining a capable fighting force. Response to Emergency Motion for
Injunction Pending Appeal 11, Dunn v. Austin, No. 22-15286 (9th Cir. Mar. 16, 2022).
6
Given the Administration’s actions in its COVID-19 response and the facts presented
in Lt. Col. Dunn’s case, this Court should discount its claims to deference here.
1. When President Biden took office in January 2021, his Administration began
taking steps to respond to the COVID-19 pandemic. An early step was to direct the
Department of Labor’s Occupational Safety and Health Administration (OSHA) to
consider whether “any emergency temporary standards on COVID-19 … are
necessary” and, if so, to “issue them by March 15, 2021.” Executive Order 13999
§ 2(b), Protecting Worker Health and Safety, 86 Fed. Reg. 7211, 7211 (Jan. 21, 2021).
Although no such action was taken by March 15, OSHA issued an emergency
temporary standard on June 21, 2021, requiring healthcare providers to develop
plans to reduce COVID-19 transmission in the workplace. Occupational Exposure to
COVID-19; Emergency Temporary Standard, 86 Fed. Reg. 32376 (June 21, 2021)
(Healthcare ETS). The Healthcare ETS stated that COVID-19 vaccines were “safe
and highly effective,” yet did not mandate vaccination. Id. at 32377.
Days after the Healthcare ETS was issued, this Court addressed an emergency
application seeking relief from the Center for Disease Control’s (CDC) nationwide
moratorium on evictions. The district court had granted summary judgment—ruling
the moratorium unlawful—but it granted the federal government’s request to stay
that judgment pending appeal. Alabama Ass’n of Realtors v. HHS, 539 F. Supp. 3d
211, 218 (D.D.C. 2021). This Court denied the request to vacate the stay, though four
Justices noted that they would have granted the request. Alabama Ass’n of Realtors
v. HHS, 141 S. Ct. 2320, 2320 (2021). Justice Kavanaugh wrote a concurring opinion,
noting that he believed that the CDC “exceeded its existing statutory authority by
issuing a nationwide eviction moratorium.” Ibid. (concurrence). Justice Kavanaugh
emphasized that the moratorium was set to expire in a few weeks, at which time
7
“clear and specific congressional authorization (via new legislation) would be
necessary for the CDC to extend the moratorium.” Id. at 2321.
Despite a strong signal that five Justices believed that the moratorium was
unlawful, the Administration reissued it days after it expired. The matter was soon
back in this Court. This time the Court ruled that the moratorium was likely
unlawful. Alabama Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2490 (2021) (per
curiam). This Court explained that the Administration’s “claim of expansive
authority” under the relevant statute “is unprecedented. Since that provision’s
enactment in 1944, no regulation premised on it has even begun to approach the size
or scope of the eviction moratorium.” Id. at 2489.
Around the time of the eviction moratorium’s defeat, President Biden grew
frustrated with the country’s vaccination rate. He asked his Administration to
develop plans to mandate vaccination, despite prior policies (like the Healthcare ETS)
stopping short of such action. The first such mandate was the one at issue in this
case, applicable to the armed forces. On July 29, 2021, the President announced that
he was “asking the Defense Department to look into how and when they will add
COVID-19 to the list of vaccinations our armed forces must get.” The White House,
Remarks by President Biden Laying Out the Next Steps in Our Effort to Get More
Americans Vaccinated and Combat the Spread of the Delta Variant (July 29, 2021),
https://bit.ly/3xeUG39. On August 9, Secretary of Defense Lloyd Austin sent a memo
to Department employees noting that “President Biden asked me to consider how and
when we might add the coronavirus disease 2019 (COVID-19) vaccines to the list of
those required for all Service members.” Defendants’ Opposition to Plaintiff’s Motion
for Temporary Restraining Order, Ex. 1 at 1, Dunn v. Austin, No. 2:22-cv-00288 (E.D.
Cal. Feb. 18, 2022). Secretary Austin made the military vaccine mandate official on
August 24, in a memo to senior Department leadership. Id., Ex. 2 (Military Mandate).
8
This second memo departed from the Secretary’s first by stating that the Mandate
was being imposed not because the President wanted it, but because Secretary Austin
“determined that mandatory vaccination against coronavirus disease 2019 (COVID19) is necessary to protect the Force and defend the American people.” Id. at 1.
On September 9, the President addressed the nation to outline further “new
steps” that his Administration would be taking to fight COVID-19. The White House,
Remarks by President Biden on Fighting the COVID-19 Pandemic (Sept. 9, 2021),
https://bit.ly/3Ey4Zj6 (Sept. 9 Remarks). These steps included vaccine mandates for
federal employees, federal contractors, private employers employing over 100
workers, and healthcare providers receiving Medicare or Medicaid funds. Ibid. These
mandates were issued in the coming months, along with a mandate requiring workers
and volunteers in federal Head Start education assistance programs to be vaccinated
and children aged two and older in such programs to be masked. See Executive Order
14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, 86
Fed. Reg. 50989 (Sept. 9, 2021) (Federal Employee Mandate); Executive Order 14042,
Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg.
50985 (Sept. 9, 2021) (Federal Contractor Mandate); COVID-19 Vaccination and
Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402 (Nov. 5, 2021) (Private
Employer Mandate); Medicare and Medicaid Programs; Omnibus COVID-19 Health
Care Staff Vaccination, 86 Fed. Reg. 61555 (Nov. 5, 2021) (CMS Mandate); Vaccine
and Mask Requirements To Mitigate the Spread of COVID-19 in Head Start
Programs, 86 Fed. Reg. 68052 (Nov. 30, 2021) (Head Start Mandate).
These mandates were issued because the President’s patience was “wearing
thin” with the unvaccinated, whose “refusal has cost all of us.” Sept. 9 Remarks.
2. The President’s package of vaccine mandates was beset by clear problems.
Litigation followed. And the Administration responded in a way that is now familiar.
9
Like the eviction moratorium, several mandates rested on unsound claims of
legal authority. The best known of these is the Private Employer Mandate that—like
the Healthcare ETS—was issued as an emergency temporary standard by OSHA
under the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. That Act
enables OSHA to set workplace “occupational safety or health standard[s].” Id.
§ 655(b). But unlike the Healthcare ETS, which aimed to address the specific
occupational danger of COVID-19 transmission to healthcare workers, the
Administration used the Private Employer Mandate as a broad public-health
measure seeking to reach tens of millions of Americans. The Private Employer
Mandate applied to all “employers with a total of 100 or more employees at any time
the standard is in effect,” requiring employees to either vaccinate or be tested weekly
(at their own cost). 86 Fed. Reg. at 61403, 61437. The Mandate applied across all
industries and did not account for how COVID-19 transmission may differ by
occupation or workplace.
The President’s Federal Contractor Mandate and Federal Employee Mandate
also rested on strained claims of statutory authority. According to Executive Order
14042, the Federal Contractor Mandate was issued under the Federal Property and
Administrative Services Act, 40 U.S.C. § 101 et seq. See 86 Fed. Reg. at 50985. As its
name suggests, the Act is not a public-health statute. Instead, it enables the federal
government’s “economical and efficient” procurement of property and services. 40
U.S.C. § 101. Executive Order 14043 states that the Federal Employee Mandate was
based on authority from 5 U.S.C. §§ 3301, 3302, and 7301. See 86 Fed. Reg. at 50989.
These statutes say that the President “may prescribe regulations for the conduct of
employees in the executive branch,” 5 U.S.C. § 7301, “may prescribe rules governing
the competitive service,” id. § 3302, and “may ... prescribe such regulations for the
admission of individuals into the civil service in the executive branch as will best
10
promote the efficiency of that service,” id. § 3301. The Administration read these
general grants to provide a springboard to dictate that millions of federal employees
must choose between vaccination or termination.
Lawsuits followed, challenging various mandates based on the absence of
statutory authority and other legal flaws. In response, the Administration leaned on
claims of deference and the unprecedented nature of the pandemic. In defending the
Private Employer Mandate, it pointed to the “substantial deference” due to OSHA in
its interpretation of the statute. Respondents’ Emergency Motion to Dissolve Stay 17,
In Re: OSHA Rule on COVID-19 Vaccination and Testing, 21 F.4th 357 (6th Cir. 2021)
(No. 21-7000). The Administration argued that the Private Employer Mandate was
designed to prevent “thousands of employee deaths and hundreds of thousands of
hospitalizations,” id. at 32, and that an order blocking the Mandate would “threaten”
deaths and hospitalizations, id. at 50. See also Response in Opposition to the
Applications for a Stay 40, National Federation of Independent Business v. OSHA,
142 S. Ct. 661 (2022) (Nos. 21A244 and 21A247) (“Applicants provide no basis for the
Court to second-guess OSHA’s judgment that the Standard is necessary to protect
against a grave danger to younger unvaccinated employees.”); id. at 17 (“[A]ny further
delay in the implementation of the Standard will result in unnecessary illness,
hospitalizations, and deaths because of workplace exposure to SARS-CoV-2.”).
The Administration made similar arguments for deference in defending the
Federal Contractor Mandate. It argued that “courts have respected the President’s
judgment that policies will enhance economy and efficiency in federal procurement,
including by increasing the efficiency and productivity of federal contractor
operations.” Corrected Brief for Appellants 20, Kentucky v. Biden, 23 F.4th 585 (6th
Cir. 2022) (No. 21-6147).
11
In defending the Head Start Mandate, the Administration again relied on
deference. It argued: “Because, at a minimum, nothing in the statute forecloses the
agency’s interpretation of the statute as including the authority to require masks and
vaccinations, that interpretation also warrants deference.” Defendants’ Response in
Opposition to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary
Injunction 21-22, Louisiana v. Becerra, No. 3:21-CV-04370, 2022 WL 16571 (W.D. La.
2022).
As the courts considered the legality of the mandates, the Administration
stepped up its rhetoric. On December 16, 2021, President Biden told the unvaccinated
that “we are looking at a winter of severe illness and death—if you’re unvaccinated—
for themselves, their families, and the hospitals they’ll soon overwhelm.” The White
House, Remarks by President Biden After Meeting with Members of the COVID-19
Response Team (Dec. 16, 2021), https://bit.ly/3reZz8D. The White House reaffirmed
that position a day later. The White House, Press Briefing by White House COVID-19
Response Team and Public Health Officials (Dec. 17, 2021), https://bit.ly/3v525zj
(“For the unvaccinated, you’re looking at a winter of severe illness and death for
yourselves, your families, and the hospitals you may soon overwhelm.”).
3. As litigation progressed, the Administration’s package of vaccine mandates
began to fall apart. The Fifth Circuit almost immediately stayed the Private
Employer Mandate, ruling that “its promulgation grossly exceeds OSHA’s statutory
authority.” BST Holdings, LLC v. OSHA, 17 F.4th 604, 612 (5th Cir. 2021). Soon, the
Private Employer Mandate reached this Court. In language echoing Alabama Ass’n
of Realtors, this Court stayed the Private Employer Mandate, finding it “telling that
OSHA, in its half century of existence, has never before adopted a broad public health
regulation of this kind—addressing a threat that is untethered, in any causal sense,
from the workplace.” National Federation of Independent Business v. OSHA, 142
12
S. Ct. 661, 666 (2022) (per curiam). “This ‘lack of historical precedent,’ coupled with
the breadth of authority that the Secretary now claims, is a ‘telling indication’ that
the mandate extends beyond the agency’s legitimate reach.” Ibid. The Private
Employer Mandate was withdrawn after the Court’s decision, though OSHA left it in
place as a proposed rule for possible future adoption. COVID-19 Vaccination and
Testing; Emergency Temporary Standard, 87 Fed. Reg. 3928 (Jan. 26, 2022).
Lower courts enjoined the Federal Employee Mandate, Federal Contractor
Mandate, and Head Start Mandate, holding each to have been issued without (or
likely without) statutory authority.
In Kentucky v. Biden, 23 F.4th 585 (6th Cir. 2022), the Sixth Circuit declined
to stay an injunction of the Federal Contractor Mandate, explaining that, “[b]y its
plain text, the [Federal Property and Administrative Services] Act does not authorize
the contractor mandate. The government itself offers virtually no textual analysis,
which is unsurprising given that the text undermines its position.” Id. at 604. District
courts, too, found this mandate likely to be without statutory authority. E.g., Georgia
v. Biden, — F. Supp. 3d —, No. 1:21-CV-163, 2021 WL 5779939, at *9 (S.D. Ga. Dec.
7, 2021) (“While the Procurement Act explicitly and unquestionably bestows some
authority upon the President, the Court is unconvinced ... that it authorized him to
direct the type of actions by agencies that are contained in EO 14042.”).
The Federal Employee Mandate was enjoined nationwide when a court held
that each of the three statutory provisions cited by Executive Order 14043 was
inadequate. Feds for Medical Freedom v. Biden, — F. Supp. 3d —, No. 3:21-CV-356,
2022 WL 188329, at *4-6, *7 (S.D. Tex. Jan. 21, 2022). The Fifth Circuit declined to
stay the injunction pending appeal. Feds for Medical Freedom v. Biden, 25 F.4th 354,
355 (5th Cir. 2022) (per curiam). Although a divided Fifth Circuit panel just vacated
the district court’s decision, it did so on jurisdictional grounds without contesting the
13
lower court’s merits ruling that the Mandate was issued without legal authority. Feds
for Medical Freedom v. Biden, — F.4th —, No. 22-40043, 2022 WL 1043909, at *6 (5th
Cir. Apr. 7, 2022).
The Head Start Mandate was enjoined in 25 states. See Louisiana v. Becerra,
— F. Supp. 3d —, No. 3:21-CV-04370, 2022 WL 16571, at *11 (W.D. La. Jan. 1, 2022)
(“This Court has no hesitation in finding that the Head Start Mandate is a decision
of vast economic significance and that Congress has not clearly spoken to give Agency
Defendants the authority to impose it.”); Texas v. Becerra, — F. Supp. 3d —, No. 5:21CV-300, 2021 WL 6198109, at *11 (N.D. Tex. Dec. 31, 2021) (“Congress’s failure to
use ‘exceedingly clear language’ in any part of the statute further supports what the
plain language of ‘performance standards’ indicates: defendants do not have
authority to issue the mask and vaccine mandates at issue here.”). The federal
government did not appeal from these injunctions against the Head Start Mandate.
Only the CMS Mandate has survived direct scrutiny by this Court (the Court
has faced the Military Mandate only when considering individual exemptions). The
CMS Mandate rests on 42 U.S.C. § 1395x(e)(9), which permits the Secretary of Health
and Human Services to impose conditions on the receipt of Medicare and Medicaid
funds that he finds “necessary in the interest of the health and safety of individuals
who are furnished services.” This nexus to protecting the “health and safety” of
patients was central to this Court’s decision to lift a stay on the CMS Mandate. Biden
v. Missouri, 142 S. Ct. 647, 652 (2022) (per curiam) (quoting statute). The Court
reasoned that “[i]t would be the ‘very opposite of efficient and effective administration
for a facility that is supposed to make people well to make them sick with COVID19.’” Ibid. (quoting Florida v. HHS, 19 F.4th 1271, 1288 (11th Cir. 2021)).
14
4. As the Administration’s package of vaccine mandates was falling apart,
many recognized that the package was not issued based on considered judgments of
facts and circumstances, and was driven instead by political considerations.
The Private Employer Mandate, for example, was ostensibly designed to
protect employees from hazards of the workplace. 86 Fed. Reg. at 61403 (contending
that the “ETS is necessary to protect unvaccinated workers from the risk of
contracting COVID-19 at work”). Yet the Mandate’s terms contradicted that purpose.
It applied on its face to all industries while simultaneously exempting employers with
99 or fewer employees from the emergency measure. Ibid. This inconsistent reasoning
was cleared up by the White House Chief of Staff’s decision to retweet a commentator
stating that OSHA was using the vaccine mandate as “the ultimate work-around” for
the government to mandate vaccinations. Callie Patteson, Biden chief apparently
admits vaccine mandate ‘ultimate work-around,’ N.Y. Post (Sept. 10, 2021).
Courts recognized the discrepancy between the Private Employer Mandate’s
stated workplace nexus and the President’s desire to mandate vaccination
nationwide. As a Member of this Court noted, “[i]t seems, too, that the agency pursued
its regulatory initiative only as a legislative ‘work-around.’” National Federation of
Independent Business, 142 S. Ct. at 668 (Gorsuch, J., concurring) (quoting BST
Holdings, 17 F.4th at 612). At oral argument, the Chief Justice had similarly
observed: “It seems to me that it’s that the government is trying to work across the
waterfront and it’s just going agency by agency. I mean, this has been referred to, the
approach, as a workaround.” Oral Argument Tr. 79, National Federation of
Independent Business v. OSHA, 142 S. Ct. 661 (2022) (Nos. 21A244 and 21A247); see
also BST Holdings, 17 F.4th at 612 (“After the President voiced his displeasure with
the country’s vaccination rate in September, the Administration pored over the U.S.
15
Code in search of authority, or a ‘work-around,’ for imposing a national vaccine
mandate.”) (internal footnotes omitted).
The mandates are also inconsistent with prior Administration COVID-19
actions that did not mandate vaccination. As one example, the CMS Mandate is
inconsistent with the earlier Healthcare ETS, which also applied to frontline
healthcare workers but omitted any vaccination requirement. The Healthcare ETS
omitted this requirement despite recognizing that vaccines were “safe and highly
effective,” 86 Fed. Reg. at 32377, even though vaccines were widely available at the
time, and even though 37 million fewer persons were fully vaccinated. See CDC
COVID Data Tracker, CDC.gov, https://covid.cdc.gov/covid-data-tracker/.
The Administration’s own actions also called into question the claimed need
for any nationwide mandate. None of the Federal Employee Mandate, Federal
Contractor Mandate, CMS Mandate, Head Start Mandate, or Military Mandate
provides an option for employees to produce periodic negative tests or mask as an
alternative. Yet the Private Employer Mandate—which potentially affected 84
million Americans—said that a test-and-mask alternative provided “roughly
equivalent protection” to vaccination. 86 Fed. Reg. at 61515.
These statements and actions, when taken together with the repeated judicial
recognition that the Administration exceeded its legal authority, erode claims that
the Administration’s pandemic response has been motivated by sound, detached
judgments
on
public-health
considerations.
The
Administration’s
political
motivations explain why, when it became clear that most Americans were vaccinated
and were tiring of COVID-19 restrictions, the President began to claim the benefits
of rolling back those restrictions. At his recent State of the Union Address, he touted
that under new CDC guidelines “most Americans in most of the country can now be
mask free” and that “based on the projections, more of the country will reach that
16
point across the next couple of weeks.” The White House, Remarks of President Joe
Biden—State of the Union Address As Prepared for Delivery (Mar. 1, 2022),
https://bit.ly/3vbb8P0. Yet, despite trying to reap the benefits of a world in which
COVID-19 is no longer the grave threat that the Administration once claimed, the
Administration still presses forward with its mission to mandate vaccination.
5. Into this comes Lt. Col. Dunn. Lt. Col. Dunn was commissioned in the U.S.
Air Force in 2003 and flew bomber missions over Afghanistan in three combat tours.
Application 2. He left active duty and joined the Air Force Reserve in 2014, where he
has been active in planning missions. Id. at 3. On August 21, 2021, he took command
of the 452nd Contingency Response Squadron. Ibid. He will qualify for a military
pension next year. Ibid.
The denial of Lt. Col. Dunn’s request for a religious exemption from the
Military Mandate was based on a stated interest in military readiness. Response to
Emergency Motion for Injunction Pending Appeal 13-14, Dunn v. Austin, No. 2215286 (9th Cir. Mar. 16, 2022). In defending the denial, the Administration has again
claimed deference, emphasizing the military context. Id. at 11-12 (quoting Goldman,
475 U.S. at 507, for the proposition that “[c]ourts must give great deference to the
professional judgment of military authorities concerning the relative importance of a
particular military interest”); see also id. at 12 n.2, 16, 18.
Even putting aside the Administration’s broader COVID-19 response, the facts
undermine the Administration’s claim to deference for its near-blanket denial of
religious exemptions from the Military Mandate. The Military Mandate applies to a
population in which only 94 deaths have been reported in 394,293 reported cases, a
fatality rate of 0.02%. U.S. Department of Defense, Coronavirus: DOD Response,
https://www.defense.gov/Spotlights/Coronavirus-DOD-Response/ (last visited Apr.
11, 2022). Only 2,597 of those 392,353 cases have resulted in hospitalization, a rate
17
of 0.66%. Ibid. And those numbers drop when one looks only at the U.S. Air Force, in
which Lt. Col. Dunn serves. Of the 92,924 reported cases, only 15 deaths have
occurred and 53 hospitalizations, 0.016% and 0.057% respectively. U.S. Air Force,
DAF
COVID-19
Statistics—April
5,
2022,
https://www.af.mil/News/Article-
Display/Article/2989918/daf-covid-19-statistics-apr-5-2022/ (last visited Apr. 11,
2022). These statistics reflect the entire pandemic, do not reflect unreported cases,
and do not reflect the fact that cases, hospitalizations, and deaths are likely lower
now due to vaccination and natural immunity. Against this backdrop of very low risk
to servicemembers, the Air Force has approved almost no religious exemptions. Of
the 7,693 requests for such exemptions, 32 have been granted. Ibid. Even accounting
for the 2,827 requests still pending, that results in a denial rate of 99.34%. Ibid.
The Administration’s nearly 100% denial rate for religious exemptions
suggests—just standing on its own—that the Administration has cast aside RFRA’s
demands to pursue a political decision to mandate widespread vaccination. The
Administration appears to be using another “work-around”—overstepping statutory
limits to achieve a higher vaccination rate, as it did with the eviction moratorium and
with its vaccine mandates. BST Holdings, 17 F.4th at 612.
When considered within its broader response to the pandemic, the denial rate
takes on a different cast. It supports the view that the Administration is again
advancing political judgments rather than making sound decisions on health. The
amici States speak from experience in concluding that the Administration’s nearblanket refusal to grant religious exemptions is not credible and that its denial in this
case is not entitled to deference.
Amici regularly must account for and respect religious liberties when pursuing
compelling government interests—managing prisons, maintaining public order and
safety, enforcing drug laws, policing, halting violence, exercising stewardship over
18
public property, and more. Holding the balance true can be challenging. And some
matters warrant particular respect for government assessments, such as maintaining
order in prisons or readiness of the military. But that balancing can be achieved while
respecting religious freedom. See Ramirez, 2022 WL 867311, at *9-10.
In the pandemic itself, amici have direct experience balancing the need to
protect public health while respecting religious exercise. In Mississippi, for example,
Governor Reeves issued an executive order early in the pandemic that limited public
gatherings of more than ten citizens at a time and prohibited in-person dining at
restaurants and bars. Miss. Executive Order 1463 at 2 (Mar. 24, 2020). But the order
also recognized that religious entities—like churches—were essential businesses or
operations. Id. at 5. The balance allowed Mississippi to manage COVID-19’s effects
without sacrificing its citizens’ religious liberties. Other amici have struck a balance
and left religious liberty to flourish even as they combatted the pandemic.
Given the States’ experience in addressing COVID-19 in their own borders and
in challenging the Administration’s COVID-19 policies, the States have seen that the
Administration has fallen short in respecting the limitations on its authority. The
Administration has acted despite legal limitations and then asked for deference to its
judgments. But it is “not enough” to “defer to [an official’s] determination” about when
an individual’s religious liberties must give way, particularly where history provides
good reason to question that determination. Ramirez, 2022 WL 867311, at *10. The
history detailed above gives good reason to question the decision here. Supra at 6-17.
Lt. Col. Dunn does not ask for the Air Force to be precluded from considering his
vaccination status when making operational decisions. He does not seek to be
returned to his position in command. Rather, he seeks to prevent future adverse
action from being taken against him. The Administration can hold true the balance
between its important interests and a servicemember’s sincerely held religious
19
beliefs. Cf. Austin v. U.S. Navy Seals 1-26, — S. Ct. —, No. 21A477, 2022 WL 882559,
at *1 (U.S. Mar. 25, 2022) (granting partial stay that respected military’s need to
make deployment and operational determinations, but leaving in place injunctive
relief allowing respondents to continue serving their country without facing discipline
or discharge). That is what Lt. Col. Dunn seeks and, on the facts here, that is the
relief that he should be granted.
CONCLUSION
The application should be granted.
Respectfully submitted.
LYNN FITCH
Attorney General
WHITNEY H. LIPSCOMB
Deputy Attorney General
SCOTT G. STEWART
Solicitor General
Counsel of Record
JUSTIN L. MATHENY
JOHN V. COGHLAN
Deputy Solicitors General
MISSISSIPPI ATTORNEY
GENERAL’S OFFICE
P.O. Box 220
Jackson, MS 39205-0220
scott.stewart@ago.ms.gov
(601) 359-3680
Counsel for Amici Curiae
April 12, 2022
20
Counsel for Additional Amici States
STEVE MARSHALL
Attorney General
State of Alabama
AUSTIN KNUDSEN
Attorney General
State of Montana
TREG R. TAYLOR
Attorney General
State of Alaska
DOUGLAS J. PETERSON
Attorney General
State of Nebraska
MARK BRNOVICH
Attorney General
State of Arizona
JOHN M. FORMELLA
Attorney General
State of New Hampshire
LESLIE RUTLEDGE
Attorney General
State of Arkansas
DREW H. WRIGLEY
Attorney General
State of North Dakota
ASHLEY MOODY
Attorney General
State of Florida
JOHN M. O’CONNOR
Attorney General
State of Oklahoma
CHRISTOPHER M. CARR
Attorney General
State of Georgia
ALAN WILSON
Attorney General
State of South Carolina
THEODORE E. ROKITA
Attorney General
State of Indiana
KEN PAXTON
Attorney General
State of Texas
DEREK SCHMIDT
Attorney General
State of Kansas
SEAN D. REYES
Attorney General
State of Utah
DANIEL CAMERON
Attorney General
Commonwealth of Kentucky
JASON MIYARES
Attorney General
Commonwealth of Virginia
JEFF LANDRY
Attorney General
State of Louisiana
PATRICK MORRISEY
Attorney General
State of West Virginia
ERIC SCHMITT
Attorney General
State of Missouri
BRIDGET HILL
Attorney General
State of Wyoming
21
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.