Amicus Curiae Brief — Jonathan Dunn, Applicant v. Lloyd J. Austin III, Secretary of Defense, et al.

Supreme Court briefApr 14, 2022

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No. 21A599

IN THE

*uprEmc Tiourt of tcUutt eb --*- tatEs

JONATHAN DUNN,

Applicant,

LLOYD J. AUSTIN III, SECRETARY OF DEFENSE, et al.,

Respondents.

ONEMERGENCY APPLICATION FOR INJUNCTION PENDING

APPEAL TOTHE HONORABLE ELENA KAGAN, ASSOCIATE

JUSTICE OF THE UNITED STATES AND CIRCUIT JUSTICE

FOR THE NINTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF

AND BRIEF FOR AMICI CURIAE AIR FORCE

OFFICER,AIR FORCE NCO,AIR FORCE

SPECIAL AGENT,AND AIR FORCE ENGINEER

IN SUPPORT OF APPLICANT

ADAM S. HOCHSCHILD

HocxscHlLD Law FIRM

THOMAS MORE SOCIETY

Special Counsel

PO Box 401

Plainfield, VT 05667

(314) 503-0326

STEPHEN M. CRAMPTON

Counsel c

fRecord

THOMAS MORE SOCIETY

Senior Counsel

PO Box 4506

Tupelo, MS 38803

(662) 255-9439

scrampton@thomasmoresociety.org

Counsel for Amici Curiae

(For Continuation c

fAppearances See Inside Covei)

312489

COUNSEL PRESS

(800) 274-3321 • (800) 359-6859

MICHAEL G. WHALE

THOMAS MORE SOCIETY

Counsel

10506 Burt Circle, Suite 110

Omaha, NE 68114

(312) 782-1680

MARY CATHERINE HODES

THOMAS MORE SOCIETY

Special Counsel

112 S. Hanley Rd., Second Floor

Clayton, MO 63105

(314) 825-5725

PAUL JONNA

LIMANDRI & JONNA LLP

THOMAS MORE SOCIETY

Special Counsel

P.O. Box 9520

Rancho Santa Fe, CA 92067

(858) 759-994

Counsel for Amici Curiae

MOTION FOR LEAVE TO FILE BRIEF AS

AMICI CURIAE IN SUPPORT OF APPLICANT

Amici curiae Air Force Officer, Air Force

NCO, Air Force Special Agent, and Air Force

Engineer, respectfully move for leave to file abrief

explaining why this Court should grant applicant

Lt. Col. Jonathan Dunn's Emergency Application

for Injunction Pending Appeal and Certiorari, or, in

the Alternative, for Certiorari before Judgment.

Amici have promptly notified counsel of record for

both parties that they intended to submit the

attached brief. Amici submit this motion for leave

pursuant to this Court's Rule 37.2(b) only out of an

abundance of caution, as counsel for respondent

"takes no position" regarding this filing, though

they consented to the filing of an amici curiae brief

below, and Lt. Col. Dunn has consented to the filing

of this brief.

Like Applicant Lt. Col. Dunn, amici are

fellow Air Force service members who have all been

denied religious accommodations to the Air Force's

COVID-19 vaccine mandate. The experience of all

four amici reveals that the Air Force's religiousaccommodation process to its COVID-19 vaccine

mandate is illusory and pure theater. Despite their

varying circumstances, all four amici were

ultimately denied religious accommodations via

nearly identical rote letters from the Air Force

Surgeon General, relying on generalized interests

that made no attempt to explain why thousands of

exemptions have been granted to the mandate for

secular reasons but essentially none have been

granted for religious reasons.

Amicus Air Force Officer has already

obtained a preliminary injunction against the Air

Force's rote denial of her religious accommodation

request, and respectfully submits that the District

Court's analysis of her circumstances is especially

illuminating. See Air Force Officer v. Austin, No.

5:22- CV- 00009-TES, 2022 WL 468799 (M.D. Ga.

Feb. 15, 2022). Indeed, Air Force Officer is a

decorated and longtime reservist, is naturally

immune, has never been deployed, works in a

purely administrative position, with demonstrated

ability to effectively work remotely, socially

distance, test, and mask—and yet was still rotely

denied a religious accommodation based on the

same alleged interests that apply to, for example,

an active- duty Navy Seal (yet which interests

somehow do not apply to the thousands of Air Force

service members with medical and administrative

exemptions).

Amici's experience will thus aid this Court's

understanding of the sincerity and legitimacy (or

lack thereof) underlying the denial of their fellow

Air Force service member Lt. Col. Dunn's request

for religious accommodation from the Air Force's

COVID-19 vaccine mandate. Additionally, amici's

experience confirms that the Air Force is inflicting

per se irreparable harms on these and other

similarly situated service members by, among other

things, threatening to withhold their military pay,

benefits, advancement opportunities, etc., as a

means of pressuring them to forgo their sincerely

held religious beliefs about COVID vaccination.

This combination of across-the-board denials of

religious but not secular accommodations to the Air

Force's COVID-19 vaccine mandate, and the

infliction of ongoing irreparable harm on Air Force

service members who have made the "wrong" kind

accommodation

request,

cries

out

for

intervention and resolution by this

Court.

Accordingly, the motion to file the brief of amici

curiae should be granted.

Respectfully submitted,

Stephen M. Crampton

Counsel of Record

THOMAS MORE SOCIETY

Senior Counsel

PO Box 4506

Tupelo, MS 38803

(662) 255-9439

srampton@thomasmoresociety.org

Counsel for Amici Curiae

Adam S. Hochschild

Hochschild Law Firm

THOMAS MORE SOCIETY

Special Counsel

PO Box 401

Plainfield, VT 05667

Michael G. McHale

THOMAS MORE SOCIETY

Counsel

10506 Burt Circle, Ste. 110

Omaha, NE 68114

Mary Catherine Hodes

THOMAS MORE SOCIETY

Special Counsel

112 S. Hanley Rd., Second Floor

Clayton, MO 63105

Paul Jonna

LiMandri & Jonna LLP

THOMAS MORE SOCIETY

Special Counsel

P.O. Box 9520

Rancho Santa Fe, CA 92067

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

A. The Air Force's religious accommodation

request process is "illusory and insincere"

B. The

military's

denial

religious

accommodation requests in violation of

RFRA and the First Amendment causes

irreparable harm

CONCLUSION

TABLE OF AUTHORITIES

CASES

Air Force Officer v. Austin, No. 5:22- CV00009-TES, 2022 WL 468799

(M.D. Ga. Feb. 15, 2022)

passim

Alliance for the Wild Rockies v. Cottrell,

632 F.3d 1127 (9th Cir. 2011)

10-11

American Trucking Assocs., Inc. v. Gray,

483 U.S. 1306 ( 1987)

Annex Med., Inc. v. Sebelius,

No. 13-1118, 2013 WL 1276025

(8th Cir. Feb. 1, 2013) (unpublished)

BST Holdings, L.L.C. v. Occupational

Safety & Health Admin. United States

Dep't of Lab., 17 FAth 604 (5th Cir. 2021)

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)

Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah,

508 U.S. 520 ( 1993)

City of Boerne v. Flores,

521 U.S. 507 ( 1997)

111

Doster v. Kendall, No. 1:22- CV- 84,

2022 WL 982299

(S.D. Ohio Mar. 31, 2022)

7,9,16

Elrod v. Burns, 427 U.S. 347 ( 1976)

Eternal Word Television Network, Inc. v.

Sec'y of U.S. Dept of Health & Human Servs.,

756 F.3d 1339 ( 11th Cir. 2014)

Fortress Bible Church v. Feiner,

694 F.3d 208 (2d Cir. 2012)

Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418 (2006)

Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 ( 10th Cir. 2013), alf'd sub. nom.,

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)

Holt v. Hobbs, 574 U.S 352 (2015)

Joy v. Coughlin, 76 F.3d 468 (2d Cir. 1996)

13,14

14-15

Kaemmerling v. Loppin,

553 F.3d 669 (D.C. Cir. 2008)

Korte v. Sebelius,

735 F.3d 654 ( 7th Cir. 2013)

Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006)

Maryville Baptist Church, Inc. v. Beshear,

957 F.3d 610 (6th Cir. 2020)

Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009) ... 14

Native Am. Council of Tribes v. Weber,

750 F.3d 742 (8th Cir. 2014)

Navy Seal 1v. Austin, No. 8:31-cv-2429- SDM TGW,

2022 WL 534459

(M.D. Fla. Feb. 18, 2022)

7,9,16

Navy Seals 126 v. Biden, No. 4:21-cv-01236-0,

2022 WL 34443

(N.D. Tex. Jan. 3, 2022)

7,9

Navy Seals 126 v. Austin, No. 4:21-cv-01236-0,

2022 WL 1025144

(N.D. Tex. Mar. 28, 2022)

O Centro Espirita Beneficente Uniao do

Vegetal v. Ashcroft, 342 F.3d 1170

(10th Cir. 2003), alf'd sub nom., Gonzales

v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006)

Opulent Life Church v. City of Holly Springs,

Miss., 697 F.3d 279 (5th Cir. 2012)

Poffenbarger v. Kendall, No. 3:22- CV- 1,

2022 WL 594810

(S.D. Ohio Feb. 28, 2022)

7,8-9,16

Ramirez v. Collier, No. 21-5592, 2022 WL

867311 (U.S. March 24, 2022)

4,11,15

Ray v. Commissioner, Alabama Dept of

Corrections, 915 F.3d 689 ( 11th Cir. 2019)

River of Life Kingdom Ministries v. Vill. of

Hazel Crest, Ill., 611 F.3d 367 ( 7th Cir. 2010)

Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020)

Sherbert v. Verner, 374 U.S. 398 ( 1963)

Singh v. McHugh,

185 F. Supp. 3d 201 (D.D.C. 2016)

Thomas v. Review Bd., 450 U.S. 707 ( 1981)

U.S. Navy Seals 126 v. Biden,

27 FAth 336 (5th Cir. 2022)

Warsoldier v. Woodford,

418 F.3d 989 (9th Cir. 2005)

Washington v. Klem,

497 F.3d 272 (3d Cir. 2007)

STATUTES

Religious Freedom Restoration Act,

42 U.S.C. § 2000bb-1

passim

Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. § 2000cc-1

OTHER AUTHORITIES

Air Force Statistics,

http s://www. af. mil/News/ArticleDisplay/Article/2959594/daf-covid-l9-statisticsmarch-2022

6-7

Atkins, Will, "A veteran's perspective of

patriotism on this Independence Day,"

Military Times, July 4, 2021

16-17

February 28, 2022 Memorandum from the

Office of the Inspector General,

https:Hmedia.defense.gov/2022/Mar/O1/2002947117/

-1/-1/1/D2022-DOOOAW-0081.00O.PDF

Lincoln, Abraham,

The

Gettysburg Address,

Gettysburg,

Pennsylvania,

Nov.

19,

1863,

https://www.abrahamlincolnonline.org/lncoln/speec

hes/gettysburg.htm

INTEREST OF AMICI CURIAE'

Four Air Force service member amici—"Air

Force Officer," "Air Force NCO," "Air Force Special

Agent," and "Air Force Engineer"—support Plaintiff

Lt. Col. Dunn's pursuit of injunctive relief against

the military's COVID-19 vaccine mandates.

Amici ("the Four Airmen") are named

plaintiffs or proposed named plaintiffs in aputative

class action pending in the United States District

Court for the Middle District of Georgia, Air Force

Officer v. Austin, No. 5:22-cv-00009-TES. Like Lt.

Col. Dunn, the Four Airmen received final denials

of their requests for religious accommodation

regarding

the

military's

COVID-19

vaccine

mandates.

Originally, one of the Four Airmen, Air Force

Officer, brought a case seeking, inter alia, an

injunction against enforcement of the military's

1 No counsel for any party authored this brief in whole or in

part. No person or entity, other than the amici and their

counsel, Thomas More Society, has contributed monetarily to

the brief's preparation or submission. Additionally, amici

timely notified counsel for both parties of their intent to file

this brief. Applicant consents, but Respondents' position is not

clear, as Respondents' counsel's reply to amici's request for

Respondent's position was as follows: "The government takes

no position." Accordingly, out of an abundance of caution,

amici have submitted amotion for leave to file this brief.

COVID-19 vaccine mandates. On February 15,

2022, the court granted apreliminary injunction in

her favor against the military defendants. Air Force

Officer v. Austin, No. 5:22- CV- 00009- TES, 2022 WL

468799 (M.D. Ga. Feb. 15, 2022). The court "easily

f[ound] that the Air Force's process to protect

religious rights is both illusory and insincere." Id.

at * 10. The "religious accommodation process...

proved to be nothing more than a quixotic quest."

Id. at * 1.

The Four Airmen recently sought leave to

file a Second Amended Complaint adding Air Force

NCO, Air Force Special Agent, and Air Force

Engineer as plaintiffs, and alternatively these

three airmen sought to intervene, alleging claims

on behalf of themselves and a putative class of all

Air Force service members who submitted a

request for religious accommodation and already

received or will receive afinal denial. 2

The Four Airmen are proceeding or seeking to proceed under

pseudonyms in Air Force Officer. In an order issued

separately from but on the same day as the preliminary

injunction, the court granted Air Force Officer leave to

proceed anonymously, recognizing a social climate, both on

the national and local levels, that is hostile to those who

decline a COVID-19 vaccine for any reason, and that religion

is a quintessentially private matter. Air Force Officer u.

Austin, No. 5:22- CV- 00009- TES, 2022 WL 468030, at * 2 (M.D.

Ga. Feb. 15, 2022). A motion to proceed anonymously with

As the Middle District of Georgia concluded

in Air Force Officer, the process for requesting a

religious accommodation regarding the military's

COVID-19 vaccine mandates is "illusory and

insincere." The military's denial of the religious

accommodation requests of the Four Airmen, Lt.

Col. Dunn, and thousands of other similarly

situated airmen unlawfully abridges their religious

freedom under the Religious Freedom Restoration

Act (RFRA) and the First Amendment of the U.S.

Constitution.

Amici submit that this brief will assist the

Court in more fully understanding the military's

essentially uniform practice of denying religious

accommodations and the need for emergency relief.

SUMMARY OF ARGUMENT

This brief focuses on two issues: the sham

religious accommodation request process and the

irreparable harm caused by the military's denial of

religious accommodation requests.

As the court found in Air Force Officer, the

Air Force's religious accommodation process is

illusory and insincere. The Air Force's formulaic

respect to the three new plaintiffs, on the same grounds, is

currently pending.

final denial letters are indicative of this sham

process. The Air Force has not approved any or

essentially any of the thousands of religious

accommodation requests, while it has approved

thousands of non-religious accommodation requests

and grants a blanket exemption that may last

indefinitely for participants in "COVID-19 clinical

trials." Like the court in Air Force Officer, several

other courts have held that the Air Force's

accommodation request process or other military

branches' similar process is illusory and insincere.

The

Air

Force's

denial

of religious

accommodation requests causes irreparable harm

because

imposes "spiritual

rather

than

pecuniary" harms on their ability to exercise their

respective religious beliefs. Ramirez v. Collier, No.

21-5592, 2022 WL 867311, at * 12 (U.S. March 24,

2022). Indeed, this Court and lower courts have

long recognized that threatening to withhold (or

actually withholding) pecuniary benefits in order to

pressure one to forgo aparticular religious belief or

practice is a quintessential "substantial burden" on

religious exercise that constitutes irreparable harm

under both the First Amendment and the Religious

Freedom Restoration Act. The Air Force has done

exactly that here in denying the religious

accommodation requests submitted by Applicant

Lt. Col. Dunn and the four amici—and those of

many other similarly situated religious service

members. In doing so, the Air Force also

irreparably deprives them of the incommensurable

ability to patriotically serve their country.

ARGUMENT

The

Air

accommodation

Force's

request

religious

process

"illusory and insincere."

The Air Force's religious accommodation

process is "illusory and insincere," "nothing more

than a quixotic quest" for service members seeking

a reasonable and lawful accommodation. Air Force

Officer, 2022 WL 468799, at * 1, * 10. This is true for

all service members, regardless of the role or

capacity in which they serve. For example, Air

Force Officer is areserve officer and has never been

deployed. Air Force NCO is a non-commissioned

officer and has been deployed four times. Air Force

Special Agent works in the Air Force Office of

Special Investigations, and in his current position

there are virtually no physical interactions. Air

Force Engineer is an active- duty officer and

licensed civil engineer. All Four Airmen have

natural immunity to COVID-19. To varying

degrees, all Four Airmen have worked remotely

and can work remotely.

Despite

the

dissimilarities

their

circumstances,

these

Four Airmen received

essentially identical letters finally denying them

accommodations on the basis of religious belief.

This is a clear indicator of a sham process. See

Exhibit A hereto (the Four Airmen's final denial

letters). While none of the letters disputes the

sincerity

or reasonableness

of the

service

member's religious objection, the letters otherwise

reflect

real

consideration

of Plaintiffs'

particular circumstances. Id. Each letter incants

the

same

generic

and

self- evidently

false

statement of Air Force Surgeon General Robert I.

Miller: "Ihave carefully reviewed your request for

religious

accommodation,"

then

recites

substantially

all

the

same

canned

generalizations, word-for-word (e.g., "Your health

status as a non- immunized individual in this

dynamic environment, and aggregated with other

non- immunized individuals

steady

state

operations, would place health and safety, unit

cohesion, and readiness at risk. Foregoing the

above immunization requirement would have a

real adverse impact on military readiness and

public health and safety. "). Id. The letters even

include the same identical copy of Surgeon

General Miller's handwritten signature. Id. In this

case, the final denial letter Lt. Col. Dunn received

is no different.

The Four Airmen and Lt. Col. Dunn are just

five

of the

7,500+

service

members

who

unsuccessfully sought religious accommodation,

and the Air Force treats them all the same

brazenly violating RFRA's requirement that the Air

Force demonstrate a compelling interest in

applying its mandate "to the person," 42 U.S.C. §

2000bb-1(b)(1). The Air Force has not approved

any or essentially any of these requests. The Air

Force posts its exemption statistics on its public

website,

https://www.af.mil/News/ArticleDisplay/Article/2959594/daf-covid-l9-statistics-

march- 2022/ ("Air Force Statistics"), showing the

thousands of unapproved requests for religious

accommodation. The Air Force claims to have

"approved" a small number of requests for religious

accommodation,

but

those

requests

were

"approved" because the service members were

already slated for separation. See Navy Seal 1 v.

Austin, No. 8:31-cv-2429-SDM-TGW, 2022 WL

534459, at * 19 (M.D. Fla. Feb. 18, 2022);

Poffenbarger v. Kendall, No. 3:22- CV- 1, 2022 WL

594810, at * 13 n.6 (S.D. Ohio Feb. 28, 2022).

Regardless, as the District Court for the Southern

District of Ohio recently found, "of the thousands of

religious exemptions the Air Force has adjudicated,

the Air Force has only approved a shameful

number of 23 religious exemptions."

Doster v.

Kendall, No. 1:22- CV- 84, 2022 WL 982299, at * 4

(S.D. Ohio Mar. 31, 2022). 3

3 Meanwhile, the Air Force has granted thousands of

non- religious—medical

and/or

administrative—

accommodation requests. See Air Force Statistics. And the

military provides a blanket exemption for all "

COVID-19

clinical trial[]" participants, as expressly stated in the

Department of Defense's August 24, 2021 military- wide

COVID-19 vaccine mandate order. Such clinical trials

presumably involve COVID-19 studies other than vaccination,

with some participants taking a placebo in any event (

Navy

Seals 1-26 v. Biden, No. 4:21-cv-01236-0, 2022 WL 34443, at

*11 (N.D. Tex. Jan. 3, 2022), and could last indefinitely. See

August 24 Order (" Service members who are actively

participating in COVID-19 clinical trials are exempted from

As the District Court for the Middle District

of Georgia "easily found" in Air Force Officer, the

Air Force's religious accommodation request

process is "illusory and insincere":

[T]he Air Force has rejected 99.76% of all

religious accommodation requests, and until

about two weeks ago, it had rejected every

single one it `carefully consider[ed].' ... With

such a marked record disfavoring religious

accommodation requests, the Court easily

finds that the Air Force's process to protect

religious rights is both illusory and insincere.

Air Force Officer, 2022 WL 468799, at * 10.

Several other courts have likewise held that

the Air Force's religious accommodation request

process or other military branches' similar process

is a sham. See, e.g., Poffenbarger, 2022 WL 594810,

at * 13 ("The current evidence appears to support

mandatory vaccination against COVID-19 until the trial is

complete...."). This favoritism shows that the Air Force lacks

a compelling interest, and fails the least- restrictive- means

test, in categorically denying service members' requests for

religious accommodation. See, e.g., Church of the Luhumi

Babalu Aye, Inc. u. City of Hialeah, 508 U.S. 520, 542-46

(1993) (no compelling interest where law burdening religious

exercise is substantially underinclusive as to its purposes).

Poffenbarger's assertion that the Air Force is

systematically

denying

religious

exemptions. ") (emphasis added); Doster, 2022 WL

982299, at * 13 (the broad formulaic claims of

`stemming the spread of COVID-19' and promoting

military readiness and national security ring

hollow.... The only difference between the over

2,500 Airmen who have otherwise received

exemptions and the 18 Plaintiffs before this Court

is solely the type of exemption they requested. It

appears to the Court that the Air Force has

freely granted medical and administrative

exemptions while denying almost all religious

exemption requests. ") (emphasis added); U.S.

Navy Seals 1-26 v. Biden, 27 FAth 336, 352 (5th

Cir. 2022) (discussing the Navy's "pattern of

disregard

for

RFRA

rights

rather

than

individualized consideration of Plaintiffs' requests")

(emphasis added); Navy Seals 1-26 v. Austin, 2022

WL 34443, at * 1 (N.D. Tex. Jan. 3, 2022) ("The

Navy provides a religious accommodation process,

but by all accounts, it is theater. The Navy has

not granted a religious exemption to any vaccine in

recent memory. It merely rubber stamps each

denial.") (emphasis added); Navy Seal 1 v. Austin,

No. 8:21-CV-2429-SDM-TGW, 2022 WL 710321, at

*7 (M.D. Fla. Mar. 2, 2022) (discussing aspects of

the

deeply

entrenched

failure

of the

[military] defendants to respond effectively to

the requirements of RFRA") (emphasis added). 4

The

uniform

denial

religious

accommodation requests by the military constitutes

a gross disregard for fundamental religious-liberty

rights that is visiting irreparable harm upon

thousands of our nation's service members. This

Court should enter the injunction pending appeal

in order to preserve the status quo ante and to

allow time to address this important question of

federal law.

The

military's

denial

religious

accommodation requests in violation of

RFRA and the First Amendment causes

irreparable harm.

Violations of military service members'

RFRA and First Amendment rights cause them

"spiritual rather than pecuniary," and thereby

With the military facing such rebukes, the Inspector

General of the Department of Defense recently announced an

investigation into "whether the Military Departments are

processing exemption requests for the Coronavirus Disease2019 vaccination and taking disciplinary actions for active

duty Service members in accordance with Federal and DoD

guidance." See February 28, 2022 Memorandum from the

Office

the

Inspector

General,

https:Hmedia. defense. gov/2022/Mar/O 1/2002947117/-1/1/1/D2022-DOOOAW-0081.00O.PDF.

irreparable, harms. Ramirez v. Collier, No. 215592, 2022 WL 867311, at * 12 (March 24, 2022);

accord Air Force Officer, No. 5:22- CV- 0009-TES,

2022 WL 468799, at * 12. 5

The fact that the military's COVID-19

vaccine mandate causes some compensable injuries,

like cutting off military pay, does not mean it

imposes no irreparable harm. The contrary

argument would be absurd, since it would mean

that anyone who suffers compensable harms as a

result of a RFRA violation could never suffer

irreparable harm and obtain a corresponding

injunction. Cf. All. for the Wild Rockies v. Cottrell,

632 F.3d 1127, 1135 (9th Cir. 2011) ("It would

prove too much" to say plaintiffs have not suffered

irreparable

harm because

they can "view,

experience, and utilize other areas of the forest"

that are not irreparably fire- damaged, as that

would mean "aplaintiff can never suffer irreparable

injury resulting from environmental harm in a

sIt goes without saying that "[t]he loss of First Amendment

freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury." Roman Cath. Diocese of

Brooklyn u. Cuomo, 141 S. Ct. 63, 67 (2020) (quoting Elrod u.

Burns, 427 U.S. 347, 373 (1976)). This analysis focuses on

irreparable harm under RFRA.

forest area as long as there are other areas of the

forest that are not harmed") (emphasis added).

The military's imposition of compensable

harms, such as loss of pay and retirement benefits,

service

members

for

seeking

religious

exemptions from the vaccine mandate accentuates

the reality that where, as here, service members'

compensation, careers, and very livelihoods are

threatened by agovernment actor like the military

because of their religious beliefs and practices, the

resulting "pressure . . . to forego th[ose] [beliefs

and]

practice[s]

is unmistakable"—and thus

irreparably harmful. Sherbert v. Verner, 374 U.S.

398, 404 ( 1963).

In Air Force Officer, this substantial

pressure came in the form of ceasing Air Force

Officer's military pay, denying her the right to

apply for a permanent change of station, denying

her at least one Temporary Duty Assignment, and

denying her the right to any military orders of any

kind, together with the prospect of final separation.

See Air Force Officer, 2022 WL 468799, at * 4. The

military

told

those

requesting

a religious

accommodation that the mere act of requesting an

accommodation "may have an adverse impact on...

deployability, assignment, and/or international

travel." Air Force Officer, No. 5:22- CV- 0009- TES,

Doc. 2-11. Such "pressure on an adherent to modify

his [or her] behavior and to violate his [or her]

beliefs" is a quintessential "substantial burden" on

religion and thus a non-compensable spiritual

harm. Kaemmerling v. Lappin, 553 F.3d 669, 678

(D.C. Cir. 2008) (quoting Thomas v. Review Bd.,

450 U.S. 707, 718 ( 1981)); see also Singh v.

McHugh, 185 F. Supp. 3d 201, 217 (D.D.C. 2016)

(holding that a finial denial of religious exemption

request is a "substantial burden" under RFRA).

Indeed, the Fifth Circuit recently recognized

that

vaccine

mandates

which "substantially

burden" an individual's free exercise of religion per

se cause "irreparable harm." BST Holdings, L.L.C.

v. Occupational Safety & Health Admin. United

States Dept of Lab., 17 FAth 604, 618 (5th Cir.

2021).

It thus comes as no surprise that this Court

has twice affirmed Circuit decisions holding that

violations of RFRA necessarily cause irreparable

harm. See Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682, 704, 736 (2014), affirming Hobby Lobby

Stores, Inc. v. Sebelius, 723 F.3d 1114, 1146 ( 10th

Cir. 2013) (holding that "by analogy to First

Amendment cases ... establishing a likely RFRA

violation satisfies the irreparable harm factor");

and Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418, 439 (2006),

affirming O Centro Espirita Beneficente Uniao do

Vegetal v. Ashcroft, 342 F.3d 1170, 1187 ( 10th Cir.

2003) (noting "a plaintiff satisfies the irreparable

harm analysis by alleging aviolation of RFRA").

Indeed, most Circuits, too, have held that

RFRA violations constitute irreparable harm. See

Joy v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)

("Courts have persuasively found that irreparable

harm accompanies a substantial burden on an

individual's rights to the free exercise of religion

under RFRA. "); Merced v. Kasson, 577 F.3d 578,

595 (5th Cir. 2009); Maryville Baptist Church, Inc.

v. Beshear, 957 F.3d 610, 615-16 (6th Cir. 2020);

Korte v. Sebelius, 735 F.3d 654, 666 ( 7th Cir. 2013);

Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 WL

1276025,

at *3 (8th

Cir.

Feb.

2013)

(unpublished); Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114, 1146 ( 10th Cir. 2013); Eternal Word

Television Network, Inc. v. Sec'y of U.S. Dept of

Health & Human Servs., 756 F.3d 1339, 1340 ( 11th

Cir. 2014).

This Court has deemed the same to be true

for violations of the Religious Land Use and

Institutionalized Persons Act ("RLUIPA"), 42

U.S.C. § 2000cc-1—the "sister statute" of RFRA.

See Holt v. Hobbs, 574 U.S 352, 356 (2015). As this

Court noted in Holt, RLUIPA was enacted in

response to this Court's decision in City of Boerne v.

Flores, 521 U.S. 507 ( 1997), which held that

Congress lacked the power to apply RFRA to the

states and their subdivisions (including state

prisons) under its Fourteenth Amendment Section

5 powers. Holt, 574 U.S. at 357. As a result,

Congress

enacted RLUIPA pursuant to its

Spending and Commerce Clause powers, id., and

Section 3 of that Act "allows prisoners to seek

religious accommodations pursuant to the same

standard as set forth in RFRA," id. at 358.

Thus, in Holt, this Court granted an

injunction pending appeal against the Arkansas

Department of Correction's refusal to let a Muslim

prisoner grow a half- inch beard in accord with his

religious faith, before ultimately holding that

RLUIPA required that he be given such permission

permanently. See Holt, 574 U.S. at 360; see also

Am. Trucking Assocs., Inc. v. Gray, 483 U.S. 1306,

1308 ( 1987) (noting that injunction pending

resolution of petition for writ of certiorari requires

showing "there is a likelihood that irreparable

injury will result if relief is not granted").

And just last month, in Ramirez, this Court

held that failure to accommodate the petitioner

inmate's religious faith by allowing his pastor to

touch him and pray over him in the execution

chamber, within due limits, would render him

"unable to engage in protected religious exercise in

the final moments of his life." Ramirez, 2022 WL

867311, at * 12. This Court rightly observed that

"[c]ompensation ... would not remedy this harm,

which is spiritual rather than pecuniary." Id.

(emphasis added).

Nearly every Circuit has likewise recognized

(either explicitly or implicitly) that violations of

RLUIPA cause or can cause irreparable harm. See

Fortress Bible Church v. Feiner, 694 F.3d 208, 220,

225 (2d Cir. 2012); Washington v. Klem, 497 F.3d

272, 286 (3d Cir. 2007); Lovelace v. Lee, 472 F.3d

174, 206 (4th Cir. 2006) (Wilkinson, J., concurring);

Opulent Life Church v. City of Holly Springs, Miss.,

697 F.3d 279, 295 (5th Cir. 2012); River of Life

Kingdom Ministries v. Vill. of Hazel Crest, Ill., 611

F.3d 367, 391-92 (7th Cir. 2010) (Sykes, J.,

dissenting); Native Am. Council of Tribes v. Weber,

750 F.3d 742, 754 (8th Cir. 2014); Warsoldier v.

Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005);

Ray

Commissioner,

Alabama

Dept

Corrections, 915 F.3d 689 ( 11th Cir. 2019). This

logic extends directly to violations of RFRA as the

"sister" statute of RLUIPA.

For this reason, in recent months lower

courts have had no trouble holding that the

military's reflexive application of the COVID-19

vaccine mandate to service members seeking

religious accommodations unquestionably inflicts

irreparable harm. See, e.g., Air Force Officer, 2022

WL 468799, at * 12; Navy Seal 1, 2022 WL 534459,

at * 19; Poffenbarger, 2022 WL 594810, at * 18; Navy

Seals 1-26 v. Austin, No. 4:21-cv-01236-0, 2022 WL

1025144, at * 13 (N.D. Tex. Mar. 28, 2022); Doster,

2022 WL 982299, at * 15.

This Court should adopt the same reasoning

in Applicant Dunn's case.

Finally, application of the military's COVID19 vaccine mandate to service members who cannot

comply for religious reasons also deprives them—in

the most meaningful way imaginable—of the

opportunity to continue serving their country in

uniform out of a sense of patriotism and piety. See,

e.g., Will Atkins, "A veteran's perspective of

patriotism on this Independence Day," Military

Times, July 4, 2021. 6 No sum can compensate for

that loss, which is no less than the permanent and

superimposed inability to "g[i]ve the last full

measure of devotion." See Abraham Lincoln, The

Gettysburg Address, Gettysburg, Pennsylvania,

Nov. 19, 1863. 7

This patriotic harm, like the above- described

"spiritual" harms, is plainly non-compensable and

also irreparable. And it is a direct result of the

military's refusal to make any real room for

religious accommodations regarding its vaccine

mandates, notwithstanding the contrary and clear

demands of the Constitution and laws the military

is sworn to defend.

CONCLUSION

For all the foregoing reasons, the injunction

pending appeal should be reinstated.

https://www.militarytimes.com/opinion/commentary/2021/07/

04/

aveterans- perspective- of- patriotism- on- this- independenceday/.

https://www.abrahamlincolnonline.org/lincoln/speeches/gettys

burg.htm.

Respectfully submitted,

Stephen M. Crampton

Counsel of Record

THOMAS MORE SOCIETY

Senior Counsel

PO Box 4506

Tupelo, MS 38803

(662) 255-9439

srampton@thomasmoresociety.org

Counsel for Amici Curiae

Adam S. Hochschild

Hochschild Law Firm

THOMAS MORE SOCIETY

Special Counsel

PO Box 401

Plainfield, VT 05667

(314) 503-0326

adam@hochschildlaw.com

Michael G. McHale

THOMAS MORE SOCIETY

Counsel

10506 Burt Circle, Ste. 110

Omaha, NE 68114

(312) 782-1680

mmchale@thomasmoresociety.org

Mary Catherine Hodes

THOMAS MORE SOCIETY

Special Counsel

112 S. Hanley Rd., Second Floor

Clayton, MO 63105

(314) 825-5725

mchodes@thomasmoresociety.org

Paul Jonna

LiMandri & Jonna LLP

THOMAS MORE SOCIETY

Special Counsel

P.O. Box 9520

Rancho Santa Fe, CA 92067

(858)759-994

pjonna@limandri.com

Counsel for Amici Curiae

EXHIBIT A

Exhibit A

Air Force Officer Final Denial:

Case 5:22-cv-00009-TES

Document 2-16

Filed OV06122

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS UNITED STATES AIR FORCE

WASHINGTON DC

Page 1of 1

Exhibit 14

MEMORANDUM FOR

FROM: HQ USAF/SG

1780 Air Force Pentagon

Washington, DC 20330-1780

SUBJECT: Decision on Religious Accommodation Appeal

Your final appeal is denied.In accordance with Department of the Air Force Instruction

(DAFT) 52-201, Religious Freedom in the Deparanent of the Air Force, paragraph 3.2, 1have

carefully reviewed your request for religious accommodation,specifically for an exemption from

the COVED- 19 immunization.

The Department of the Air Force has acompelling government interest in requiring you

to comply with the COVID-19 immunization requirement because preventing the spread of

disease among the force is vital to mission accomplishment. Specifically, in light of your

circumstances, your present duty assignment requires intermittent to frequent contact with others

and is not fully achievable via telework or with adequate distancing. We must be able to

leverage our forces on short notice as evidenced by recent worldwide events. Your health status

as anon-immunized individual in this dynamic environment,and aggregated with other nonimmunized individuals in steady state operations, would place health and safety, unit cohesion,

and readiness at risk.Foregoing the above immunization requirement would have areal adverse

impact on military readiness and public health and safety. There arc no less restrictive means

available in your circumstance as effective as receiving the above immunization in furthering

these compelling government interests.

A copy of this decision memorandum will be placed in your automated personnel

records. Please contact your unit leadership for questions or concerns.

ROB

MILLER

/ •"•"•-•" V

Lieutenant General, USAF, MC, SFS

Surgeon General

Air Force NCO Final Denial:

Case 5:

22-cv-00009-TES

Document 65-7

Filed 03/31/22

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS UNITED STATES AIR FORCE

WASHINGTON DC

Page 1of IEXHIBIT 4

DEC 272021

MEMORANDUM FOR

FROM: HQUSAFM

1750 Air Fnrce Pentagon

Washington, DC 20330.1780

SUBJECT: Decision on Religious Accommodation Appeal

Your final appeal is denied. In accordance with Department of the Air Force Instruction

(DAFT) 52.201, Religious Freedan in the Department of the Air Foree, paragraph 3.2, 1have

carefully reviewed your request for religious accommodation, specifically for an exemption from

the COVID-19 immunization.

The Department of the Air Fora has acompelling government interest in requiring you

to comply with the COVID-19 immunization requirement because preventing the spread of

disease among the force is vital to mission accomplishment. Specifically, in light of your

circumstances, your present duty as signment as a•requires intermittent

to frequent contact with others and is not fully achievable via telework or with ad e uate

distancing. Additionally, your duties may require travel for

conferences, and other engagements which increases your exposure to other personnel. We must

be able to leverage our forces on short notice as evidenced by recent woridwide events. Your

health status as anon-immunized individual in this dynamic environment, and aggregated with

other nw4mmunized individuals in steady state operations, would place health and safety, unit

cohesion, and readiness at risk. Foregoing the above immunization requirement would have a

=1 adverse impact on military readiness and public health and safety. There are no less

restrictive means available in your circumstance as effective a receiving the above

immunization in furthering these compelling government interests.

A copy of this decision memorandum will be placed in your automated personnel

records. Please contact your unit leadership for questions or concerns.

ROBERT LMILLER

Lieutenant General, USAF, MC, SFS

Surgeon General

Air Force Special Agent Final Denial:

Case 5:22-cv-00009-TES

Document 65-13

Fled 03/31/22

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS UNITED STATES AIR FORCE

WASHINGTON OC

Page 1of 1

EXHIBIT 4

FEB 10 2022

MEMORANDUM FOR

FROM: HQ USAF/SO

1780 Air Force Pentagon

Washington, DC 20330.1780

SUBJECT.

Decision on Religious Accommodation Appeal

Your final appeal is denied. In accordance with Department of the Air Force Instruction

(DAFI) 52-201, Religious Freedom in the Department of the Air Force, paragraph 3.2, 1have

camfully reviewed your request for religious accommodation, specifically for an exemption from

the COVID-19 immunization.

The Department of the Air Force bus acompelling government interest in requiring you

to comply with the COVID-19 immunization requirement because preventing the spread of

disease among the force is vital to mission accomplishment. Specifically, in light of your

circumstances, your present duly assignment requires intermittent to frequent contact with others

and is not fully achievable via lelework or with adequate distancing. In addition, your required

in-person meeting attendance includes prolonged, intermittent contact with multiple individuals.

We must be able to leverage our forces on short notice m evidenced by recent worldwide events.

Your health status as anon-immunized individual in this dynamic environment, and aggregated

with other non- immunized individuals in steady state operations, would place health and safety,

unit cohesion, and readiness at risk. Foregoing the above immunization requirement would have

ateal adverse impact on military readiness and public health and safety. There are no less

restrictive means available in your circumstance as effective as receiving the above

immunization in furthering these compelling government interests.

A copy of this decision memorandum will be placed in your automated personnel

records. Please contact your unit leadership for questions or concerns.

ROBERT 1. MILLER

Lieutenant General, USAF, MC, SFS

Surgeon General

Air Force Engineer Final Denial:

Case 5:22-cv-00009-TES

Document 65-20

Filed 03Q V22

DEPARTMENT OF THE AIR FORCE

HEADQUARTERS UNITED STATES AIR FORCE

WASHINGTON DC

Page 101 1

JAN 212022

EXHIBIT 4

MEMORANDUM FOR

FROM: HQ USAFJSG

1780 AU I—. Pentagon

Washington, DC 20330-1780

SUBJECT: Decision on Religious Accommodation Appeal

Your final appeal is denied. In accordance with Department of the Air Force Instruction

(DAFT) 52-201, Reiigionr Freedom in the Depm nnem ajrhe Air Force, paragraph 3.2, 1have

carefully reviewed your request for religious accommodation, specifically for an exemption from

the COVID-19 immunization.

The Department of the Air Force has acompelling government interest in requiring you

to comply with the COVED- 19 immunization requirement because preventing the spread of

disc= among the force is vital to mission accomplishment. Specifically, in light of your

circumstances, your present duty assignment as the

requires

frequent contact with ethers and is not fully achievable via telework or with adequate distancing.

Your leadership role was also taken into consideration. While some of these duties may be

completed remotely, institutionalizing remote completion of those duties permanently would be

detriment.] to readiness, good order and discipline, and unit cohesion. In addition, your unit has

high-risk personnel that have an elevated potential for severe illness or death, if they were

infected. We must be able to leverage our forces on short notice as evidenced by recent

worldwide events. Your health.stams as anon-immunized individual in this dynamic

environment, and aggregated with other non-immunized individuals in steady stale operations,

would place health and safety, unit cohesion, and readiness at risk. Foregoing the above

immunization requirement would have areal adverse impact on military readiness and public

health and safety. There are an less restrictive means available in your circumstance as effective

as receiving the above immunization in furthering these compelling government interests.

A copy of this decision memorandum will be placed in your automated personnel

records Please contact your unit leadership for questions or concerns.

ROB/

Lieutenant General, USAF, MC, SFS

Surgeon General

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.