Petition for Writ of Certiorari — Captain Mariella Creaghan, Petitioner v. Lloyd J. Austin, III, Secretary of Defense, et al.
Supreme Court briefJun 8, 2023
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Order in the United States Court of
Appeals for the District of Columbia
Circuit
(March 10, 2023) . . . . . . . . . . . . . . App. 1
Appendix B Memorandum Opinion in the United
States District Court for the District of
Columbia
(May 12, 2022). . . . . . . . . . . . . . . . App. 4
Appendix C Order in the United States District
Court for the District of Columbia
(May 12, 2022). . . . . . . . . . . . . . . App. 34
Appendix D Declaration of Captain Mariella
Creaghan in the United States
District Court for the District of
Columbia
(January 24, 2023) . . . . . . . . . . . App. 36
Appendix E Declaration of Captain Mariella
Creaghan in the United States
District Court for the District of
Columbia
(May 2, 2022). . . . . . . . . . . . . . . . App. 45
Appendix F Declaration of Marcus Williams in the
United States District Court for the
District of Columbia
(May 2, 2022). . . . . . . . . . . . . . . . App. 58
App. 1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2022
[Filed March 10, 2023]
No. 22-5114
1:22-cv-00688-CKK
__________________________________________
Navy Seal 1, et al.,
)
Appellees
)
)
Navy Seal 4,
)
Appellant
)
)
v.
)
)
Lloyd J. Austin, III, in his official capacity )
as Secretary of the United States
)
Department of Defense, et al.,
)
Appellees
)
_________________________________________ )
No. 22-5135
1:22-cv-00981-CKK
__________________________________________
Mariella Creaghan, Captain,
)
Appellant
)
)
v.
)
)
App. 2
Lloyd J. Austin, III, in his official capacity )
as the Secretary of the United States
)
Department of Defense, et al.,
)
Appellees
)
_________________________________________ )
BEFORE: Henderson, Wilkins, and Katsas, Circuit
Judges
ORDER
In light of the January 10, 2023 Memorandum
issued by the Secretary of Defense rescinding the
military’s COVID-19 vaccination mandate for all
service members, and the subsequent directives
formally implementing the Secretary of Defense’s
rescission of the COVID-19 vaccination requirement,
including but not limited to:
the February 24, 2023 Memorandum issued by the
Deputy Secretary of Defense,
the February 24, 2023 Memorandum issued by the
Secretary of the Air Force,
the February 24, 2023 Memorandum issued by the
Secretary of the Navy,
the February 23, 2023 NAVADMIN 038-23 issued
by the Chief of Naval Operations,
and
the January 30, 2023 Memorandum issued by the
Under Secretary of Defense.
It is ORDERED, on the court’s own motion, that
appellants’ appeals of the denial of their preliminary
App. 3
injunctions in No. 22-5114 and No. 22-5135 be
dismissed as moot. The district court’s judgments
denying the preliminary injunctions are vacated. See
United States v. Munsingwear, Inc., 340 U.S. 36, 39
(1950). These actions are remanded to the district court
for further proceedings consistent with this order.
Pursuant to D.C. Circuit Rule 36, this disposition
will not be published. The Clerk is directed to withhold
issuance of the mandate herein until seven days after
resolution of any timely petition for rehearing or
rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir.
R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
/s/
Michael C. McGrail
Deputy Clerk
App. 4
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 22-0981 (CKK)
[Filed May 12, 2022]
_______________________________________
MARIELLA CREAGHAN,
)
Plaintiff
)
)
v.
)
)
LLOYD AUSTIN, in his official capacity )
as Secretary of the United States
)
Department of Defense, et al.,
)
Defendants.
)
______________________________________ )
MEMORANDUM OPINION
(May 12, 2022)
Plaintiff Mariella Creaghan (“Plaintiff” or “Captain
Creaghan”) is a Captain in the United States Space
Force and religious objector of one of several vaccines
mandated by her branch of service. Captain Creaghan’s
[11] Motion seeks preliminary relief from this Court
barring Defendants from “punishing, prosecuting, or
taking any adverse or retaliatory action against
Plaintiff as a result of, or arising from, or in
conjunction with Plaintiff’s request for a religious
accommodation or Defendants’ denial of Plaintiff’s
App. 5
religious accommodation.” As the Court explained in a
similar case, requests for religious exemptions from
military-mandated medical requirements “raise
particularly difficult questions that implicate a storm
of colliding constitutional interests.” Navy SEAL v.
Austin, 2022 WL 1294486, at *1 (D.D.C. Apr. 29, 2022).
Although this case is much closer than Navy SEAL, the
Court remains concerned that it lacks the competence
to “evaluate the merits of military [epidemiological and
tactical] expertise” or to “weigh technical issues of
public health and immunology” necessary to resolve the
case. Id. at *5. Justiciability is all the more uncertain
given the unfixed, evolving science on which this
vaccination mandate is based. These concerns
permeate the merits of Plaintiff’s claims as well.
Accordingly, after careful review of the pleadings,1 the
relevant legal and historical authorities, and the entire
record, Court shall DENY Plaintiff’s [11] Motion for
Preliminary Injunction.
1
This Memorandum Opinion focuses on the following documents:
• Plaintiff’s Complaint, ECF No. 3;
• Plaintiff’s Memorandum in Support of Plaintiff Navy
SEAL 4’s Motion for Preliminary Injunction, ECF
No. 14-1 (“Motion” or “Mot.”);
• Defendants’ Response in Opposition to Plaintiff Navy
SEAL 4’s Motion for Preliminary Injunction, ECF
No. 22 (“Opp.”);
• Plaintiff’s Reply in Support of Plaintiff Navy SEAL 4’s
Motion for Preliminary Injunction, ECF No. 25
(“Repl.”).
In an exercise of its discretion, the Court finds that holding oral
argument would not be of material assistance in rendering a
decision.
App. 6
I. BACKGROUND
A. General Background
As this Court has previously noted, military vaccine
mandates have a long history in this country.
“[E]xecutive immunization requirements predate the
birth of this country, with George Washington
famously requiring members of the Continental Army
to be inoculated against smallpox.” Feds for Med.
Freedom v. Biden, 25 F.4th 354, 357 n.6 (5th Cir. 2022)
(Higginson, J., dissenting). Until August 2021, the
United States Department of the Air Force (“Air
Force”) mandated a number of vaccines, including
those against influenza, hepatitis A & B, mumps,
rubella, and tetanus. See ECF 22-11 at 9. On
August 24, 2021, the Secretary of Defense directed the
Air Force to add another vaccine to the list––
vaccination combatting COVID-19. Id. at 8. The
Secretary of Defense explained that, “[t]o defend this
Nation, we need a healthy and ready force.” Navy
SEAL, 2022 WL 1294486, at *2. Accordingly, “[a]fter
careful consultation with medical experts and military
leadership, and with the support of the President [of
the United States], [the Secretary of Defense]
determined that mandatory vaccination against
coronavirus disease 2019 (COVID-19) is necessary to
protect the Force and defend the American people.” Id.
Consistent with that order, the Secretary of the Air
Force, on September 3, 2021, directed all active duty
servicemembers (within the Air Force and Space Force)
to be fully vaccinated against COVID-19 by
App. 7
November 2, 2021.2 All Air Force orders are applicable
to the United States Space Force (“Space Force”) as a
constituent branch of the Air Force and all Space Force
servicemembers (called “Guardians”). ECF 22-4 at 1.
On December 7, 2021, the Secretary of the Air Force
issued an order providing for “medical, religious[,] or
administrative exemptions,” and temporarily exempted
servicemembers from discharge or adverse action while
exemption requests were pending.3 The recognition of
these exemptions was largely perfunctory, as requests
for COVID-19 vaccination exemptions are governed by
the same rules and regulations, active since 2018, that
govern all other requests for exemptions from other
vaccinations. ECF 22-4 at 2. As of April 26, 2022, the
Air Force has granted 460 medical exemptions
(including seven for Space Force Guardians), and 41
religious exemptions.4
2
DAF, “Mandatory Coronavirus Disease 2019 Vaccination of
Department of the Air Force Military Members” (Sept. 3, 2021),
https://www.hqrio.afrc.af.mil/Portals/149/Documents/
COVID/20210903%20DAF_%20SecAF%20Memo%20%20Mandatory%20Coronavirus%20Disease%202019%
20Vaccination%20of%20Department%20of%20the%20Air%20Fo
rce%20Military%20Members.pdf?ver=YogX1KMirg
EUGIvzJtgUSw%3D%3D.
3
DAF, “Supplemental Coronavirus Disease 2019 Vaccination
Policy” (Dec. 7, 2021), https://www.af.mil/Portals/1/documents/
2021SAF/12_Dec/Supplemental_Cor o na v i r us_Disease_
2019_Vaccination_Policy.pdf.
4
DAF, “COVID-19 Statistics - Apr. 26, 2022”
https://www.af.mil/News/Article-Display/Article/2989918/daf-covid19-statistics-apr-26-2022/.
App. 8
Pursuant to that policy, AFI 48-110_IP (Oct. 7,
2013) as amended (Feb. 16, 2018), a Guardian seeking
a religious exemption first submits a written request to
the applicable commanding officer. ECF 22-5 at 2. The
Guardian then consults with the applicable
commanding officer and a medical military provider,
who address, respectively, the effect of nonvaccination
on the Guardian’s mission and the Guardian’s health.
Id. at 4. The Guardian must also consult with an Air
Force chaplain, and the chaplain assesses the sincerity
and religiosity of the exemption request. Id. With these
three assessments in hand, the omnibus request is
reviewed by each commanding officer in the Guardian’s
chain of command. Id. at 5. Each commanding officer
makes a recommendation (termed an “endorsement”)
as to whether to grant the exemption request, but the
ultimate decision is made by the “approval/disapproval
authority.”5 For Space Force Guardians, the approval
authority is the Commander of Space Operations
Command, Lt. Gen. Stephen N. Whiting. See id. at 18.
Disapproval may be appealed to the Air Force Surgeon
General. ECF No. 22-5 at 2. To assist Lt. Gen. Whiting
in his review, as the approval authority, the Space
Force employs “Religious Resolution Teams” (“RRT”).
DAFI 52-201 at 6. These teams are made up of at least
one commander, chaplain, public affairs officer, and
staff judge advocate. Id. Where a medical objection is
raised, the team must also include a medical provider.
Id. At each stage of review, those involved determine:
(1) the sincerity of the religious request; (2) the
5
DAFI 52-201 at 8 (June 23, 2021), https://static.e-publishing.af.
mil/production/1/af_hc/publication/dafi52-201/dafi52-201.pdf.
App. 9
military interests at issue; (3) whether those interests
are compelling; (4) whether vaccination substantially
burdens the Guardian’s religious belief(s); and
(4) whether vaccination is the least restrictive means
to accomplish the military’s interests in vaccinating
that particular Guardian. Id. at 7-8.
A Guardian whose appeal has been denied and who
still objects to vaccination is subject to discipline, up to
and including administrative, general (under honorable
conditions) discharge and military courts-martial. ECF
No. 6 at 4-5. Before adverse action may be taken on
continued objection to COVID-19 vaccination,
noncompliance must first be reviewed by a highranking officer (a Colonel or higher). Id. at 2.
B. Background Specific to Plaintiff
Plaintiff is a Space Force Captain assigned to the
Space Force’s National Reconnaissance Office (“NRO”)
in Chantilly, Virginia. ECF No. 22-10 at 1. Her precise
role is somewhat difficult to discern from the record
thus far, perhaps because much of it involves
particularly sensitive, classified operations. From what
the Court understands, the NRO provides offensive and
intelligence support to the Air Force, other branches of
the military, and the intelligence community. ECF
No. 22-10 at 2. It manages a number of satellite
systems and spacecraft that are evidently capable of
engaging in electronic warfare and that also gather
signals and geospatial intelligence. Captain Creaghan
is a “Mission Director.” Id. She “has operational control
and on-line decision-making responsibilities for all
aspects of NRO operations during [her] shift.” Id. That
includes the direction of those assets, ensuring the
App. 10
operational health of the assets, overseeing the security
of the site in which those assets are managed, and
overseeing “daily reports for [the] NRO and
government senior leaders.” See id. at 2-3. She works
in a compartmentalized area known as a “SCIF”
(Secure Compartmentalized Information Facility) that
is fully indoors and limits airflow. Id. at 3. Because all
her work is classified, she cannot telework. See id. The
nature of her work evidently involves frequent
interpersonal contact within her workspace. See id.
at 4.
On September 30, 2021, Plaintiff requested a
religious accommodation. She articulated a religious
belief predicated on the religious view that life begins
at conception, and insisted that receiving any COVID19 vaccine would contravene her sincerely held belief
because each vaccine’s development involved fetal cells
in some way. ECF 22-13 at 22-24. She included in her
request a litany of supporting documents from religious
figures in her life testifying to the sincerity of her belief
and its connection to her Catholic faith. See, e.g., ECF
No. 22-13 at 31. On October 18, 2021, an Air Force
chaplain concluded that she held a sincerely held
religious belief and that vaccination against COVID-19
would substantially burden that belief. Id. at 62. On
December 14, 2021, the Religious Resolution Team
assigned to Captain Creaghan’s request agreed with
the chaplain, and also concluded that the Space Force
had a compelling government interest in requiring her
health as a Space Force Mission Director and that
vaccination was the least restrictive means of
accomplishing that interest. Id. at 63-66. That report
concluded that “[s]ervice members have a responsibility
App. 11
to maintain their health and fitness, meet individual
medical readiness requirements, and report medical
and health issues that may affect their readiness to
deploy or [medical] fitness to continue serving in an
active status.” Id. at 66.
Notwithstanding this finding, Captain Creaghan’s
direct commanding officer, Lt. Col. Benjamin Andrea
(“Col. Andrea”) recommended approval of Captain
Creaghan’s request. Id. at 88. Most relevant for present
purposes, he found that “[t]he projected impact to
[Plaintiff’s] unit is low” if she remains “unvaccinated.”
Id. at 89. He suggested that Plaintiff’s unit “has backup
personnel available to provide positional coverage in
the event of any operations personnel requiring
quarantine.” Id. Col. Andrea also expressed a personal
belief that the risk to Plaintiff’s health was acceptable
because Plaintiff “supplied sufficient medical evidence
indicating presence of the SARS-CoV-2 antibody.” Id.
at 90. The record does not suggest that Plaintiff’s direct
commanding officer had any medical expertise to make
such a judgment.
On the same form, Plaintiff’s second-level
commanding officer circled “concur” and “approval” to
ratify, without explanation, Col. Andrea’s
recommendation. Id. at 90. On January 30, 2022,
Plaintiff’s third-level commanding officer, Major
General Donna D. Shipton, disagreed, finding that
“there are no less restrictive means available to meet
the government’s compelling interest without placing
in jeopardy the health, safety, and availability of
Capt[ain] Creaghan.” Id. at 92. Captain Creaghan,
Major General Shipton continued, “makes important
App. 12
contributions to the mission at [her] NRO [facility] . . .
where she is responsible for directing daily operations
and maintenance of NRO space and ground systems.”
Id. Major General Shipton therefor concluded that
placing Captain Creaghan at a “higher risk of
prolonged illness, hospitalization, and death” by
granting a mandate would unacceptably jeopardize
Captain Creaghan’s military duties and the NRO’s
military mission. See id.
Weighing these differing recommendations,
Lieutenant General Whiting sided with Major General
Shipton and the interdisciplinary RRT. Id. at 93. He
found that “as a Mission Director responsible for
directing daily operations and maintenance for NRO
space and ground systems, and ensuring overall
spacecraft health and mission success,” vaccination was
the least restrictive means to accomplish military
goals. Id. Lieutenant General Whiting’s finding was
limited to “the spread of the COVID-19 virus,” however,
and made no mention of the necessity of vaccination to
protect Plaintiff’s health. See id. On appeal, Lieutenant
General Robert Miller, the Surgeon General of the Air
Force, affirmed Lieutenant General Whiting’s decision
on March 25, 2022, concluding that lack of Plaintiff’s
immunization “in [Plaintiff’s] dynamic [military]
environment, and aggregated with other nonimmunized individuals in steady state operations,
would place health and safety, unit cohesion, and
readiness at risk.” Id. at 103. Like Lieutenant General
Whiting, Lieutenant General Miller’s findings appear
to rest almost entirely on transmission, although an
attached appendix does mention that vaccinated
“personnel are much less likely to develop severe
App. 13
disease, be hospitalized, or die as a result of being
vaccinated.” Id. at 105.
Denial in hand, Plaintiff filed for suit for injunctive
relief in this court. Although the Space Force may take
any number of disciplinary or administrative actions
against Plaintiff for continued religious objection to
Space Force medical requirements, no such action,
including the institution of separation proceedings, has
been taken against Plaintiff as of April 29, 2022. ECF
No. 22-10 at 13.
II. LEGAL STANDARD
Preliminary injunctive relief is an “extraordinary
remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.” Sherley v.
Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (emphasis
added) (quoting Winter v. Nat’l Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong,
520 U.S. 968, 972 (1997) (per curiam)).6 A plaintiff
seeking preliminary injunctive relief “must establish
[1] that he is likely to succeed on the merits, [2] that he
is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of the equities
6
Plaintiff argues in her supplemental briefing that the Court in
Navy SEAL “seem[ed] to require a heightened standard for
granting a preliminary injunction.” Pl.’s Supp. Br. at 4. Plaintiff
appears to rest that argument on the Court’s conclusion that the
plaintiff in Navy SEAL “has not carried his burden to show that he
is ‘clearly warranted’ preliminary relief.” 2022 WL 1294486, at *4.
To be clear, the Court used the term “clearly warranted” to restate
the D.C. Circuit’s instruction that a preliminary injunction must
only be granted “upon a clear showing that the plaintiff is entitled
to such relief.” Sherley, 644 F.3d at 392.
App. 14
tips in his favor, and [4] that an injunction is in the
public interest.” Aamer v. Obama, 742 F.3d 1023, 1038
(D.C. Cir. 2014). When seeking such relief, “the movant
has the burden to show that all four factors, taken
together, weigh in favor of the injunction.” Abdullah v.
Obama, 753 F.3d 193, 197 (D.C. Cir. 2014). “The four
factors have typically been evaluated on a ‘sliding
scale,’” whereby if “the movant makes an unusually
strong showing on one of the factors, then [he] does not
necessarily have to make as strong a showing on
another factor.” Davis v. Pension Benefit Guar. Corp.,
571 F.3d 1288, 1291-92 (D.C. Cir. 2009).
It is unclear whether the United States Court of
Appeals for the District of Columbia Circuit’s (“D.C.
Circuit”) sliding-scale approach to assessing the four
preliminary injunction factors has survived the
Supreme Court’s decision in Winter. See Save Jobs
USA v. Dep’t of Homeland Sec., 105 F. Supp. 3d 108,
112 (D.D.C. 2015). Several judges on the D.C. Circuit
have “read Winter to suggest if not to hold that ‘a
likelihood of success is an independent, free-standing
requirement for a preliminary injunction.’” Sherley, 644
F.3d at 393 (quoting Davis, 571 F.3d at 1296
(Kavanaugh, J., concurring)). However, the D.C.
Circuit has yet to hold definitively that Winter has
displaced the sliding-scale analysis. See id. In light of
this ambiguity, the Court shall consider each of these
factors and shall only evaluate the proper weight to
accord to the likelihood of success if the Court finds
that its relative weight would affect the outcome.
Accord Church v. Biden, --- F. Supp. 3d ---, 2021 WL
5179215, at *7 (D.D.C. 2021).
App. 15
III. DISCUSSION
For the most part, this case raises the same
questions as those in Navy SEAL. That said, the
parties’ supplemental briefing in response to the
Court’s opinion in Navy SEAL have narrowed the
issues somewhat. The parties do not appear to
seriously contest the Court’s discussion of the merits of
Free Exercise and Equal Protection claims as to
religious objections to military vaccination orders.
Rather, they contest: (1) the Court’s justiciability
discussion; and (2) the application of RFRA in military
context, i.e., what degree of deference the military is
due on the merits of a RFRA claim and whether a
vaccination order is narrowly tailored as to Plaintiff.
Additionally, this case raises two new questions that
were not present in Navy SEAL: (1) whether a
servicemember has Article III standing to contest the
denial of a religious accommodation where separation
proceedings (or any other adverse action) have not yet
begun; and (2) whether administrative, general (under
honorable conditions) discharge is irreparable harm as
a matter of law. As such, the Court will proceed to
these four questions and refer to its opinion in Navy
SEAL for the remaining issues presented in the parties’
briefing.
A. Standing
First, the Government argues that Plaintiff lacks
standing to challenge the denial of her requested
religious accommodation because separation
proceedings have not yet begun. Not so.
App. 16
To receive a preliminary injunction, the moving
“party must show, among other things, a ‘substantial
likelihood of success on the merits.’” Food & Water
Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir
2015). “The merits on which plaintiff must show
likelihood of success encompass not only substantive
theories but also establishment of jurisdiction,”
including Article III standing. See Elec. Priv. Info. Ctr.
v. Dep’t of Com., 928 F.3d 95, 104 (D.C. Cir. 2019). To
show standing, a plaintiff must show an “injury-in-fact
that is ‘imminent’ or ‘certainly impending.’” Am. Petrol.
Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2013).
Defendants seem to construe the alleged injury as
separation proceedings or other adverse action
predicated upon the denial of Plaintiff’s accommodation
request. Plaintiff, however, relies on, the deprivation of
a statutory or constitutional right as an “injury-in-fact”
triggering Article III jurisdiction. See Warth v. Seldin,
422 U.S. 490, 500 (1975). Insofar as Plaintiff has
exhausted her administrative remedies to receive a
religious exemption from COVID-19 vaccination, the
Court agrees that Plaintiff has demonstrated a
likelihood success in demonstrating that she ahs
standing to challenge that denial.
B. Justiciability
In Navy SEAL, the Court explained that “‘[c]laims
are nonjusticiable where: (1) their resolution requires
decisions which are not matters of judicial expertise
but are matters of management, public policy or
technical expertise; (2) the relief requested usurps the
functions of a coordinate branch of government; or
(3) the relief requested is not justicially manageable.”
App. 17
Nat’l Coal Ass’n v. Marshall, 510 F. Supp. 803, 805
(D.D.C. 1981) (citing Baker, 369 U.S. at 217). Here, as
in Navy SEAL, there remain serious questions as to
whether a judicial challenge to a military medical
requirement (1) “usurps the functions” of powers
committed to the Executive through the Commanderin-Chief Clause and (2) involves scientific
determinations that “are not matters of judicial
expertise but are matters of . . . technical expertise.”
2022 WL 1294486, at *5.
As to military judgments, the Court stressed that
some are undoubtedly justiciable. Justiciable military
cases involving the rights of military personnel
generally do not require evaluation of strategic or
technical decisions. Rather, they look to whether a
service member has received constitutionally sufficient
process, or to evaluate constitutional claims that do not
involve a particularly technical record. See, e.g.,
Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006)
(justiciable where review was limited to whether
decision by civilian administrative board was arbitrary
or capricious); Doe 2 v. Shanahan, 755 F. App’x 19, 23
(D.C. Cir. 2019) (suggesting that a “blanket ban”
prohibiting indefinitely the accession of transgender
individuals into the military would be justiciable).
At the same time, most cases involving fitness for
duty are generally not justiciable, sometimes because
they involve complex medical judgments, and
sometimes because they involve highly subjective
judgments regarding the servicemember’s military
capabilities. See Emory v. Sec’y of Navy, 819 F.2d 291,
294 (D.C. Cir. 1987); see also, e.g., Kries v. Sec’y of Air
App. 18
Force, 866 F.2d 1508, 1512 (D.C. Cir. 1989) (“This court
is not competent to compare appellant with other
officers competing for [] a promotion.”); Charette v.
Walker, 996 F. Supp. 46, 50 (D.D.C. 1998) (holding a
former military officer’s “request for reinstatement . . .
not justiciable”); Harkness v. Sec’y of Navy, 858 F.3d
437, 444-45 (6th Cir. 2017) (“Duty assignments lie at
the heart of military expertise and discretion, and we
are wary of intruding upon that sphere of military
decision-making.” (internal quotation marks omitted)).
Cases involving actual strategic decisions are perhaps
the epitome of “complex, subtle, and professional
decisions” otherwise left to the Commander-in-Chief
and their subordinates. See Short v. Berger, 2022 WL
1051852, at *5 (C.D. Cal. Mar. 3, 2022); Trans. at 42,
ECF No. 22, Dunn v. Austin, No. 2:22-cv-00288-JAMKJN (E.D. Cal. Feb. 28, 2022), application for
injunction pending appeal denied, No. 21A599, Doc. 7
(U.S. Apr. 15, 2022); see also Orloff v. Willoughby, 345
U.S. 83, 91-92 (1953).
In response, Plaintiff points the Court to Doe v.
Rumsfeld, 297 F. Supp. 2d 119 (D.D.C. 2003). In that
case, which is not binding upon this Court, two military
servicemembers challenged an anthrax vaccination
mandate under the Administrative Procedure Act, 5
U.S.C. §§ 551 et seq. Id. at 123. The question in that
case was whether the Food and Drug Administration
had classified the particular vaccine “as an
investigational new drug or as a drug unapproved for
its intended use.” Id. at 131. An applicable federal law
provided that the military may not “administer[]
investigational new drugs, or drugs unapproved for
their intended use, to serve members without their
App. 19
informed consent.” Id. at 125. The merits question,
therefore, was not the wisdom of mandating a
particular vaccine generally or to particular
servicemembers, but rather whether a particular
vaccine fell within a certain legal category that could be
determined through traditional tools of statutory
interpretation. That question fell within the familiar
ambits of the APA––whether a federal agency had
acted arbitrarily or capriciously. Id. at 128.
On justiciability, Doe in fact employed a similar
analysis as this Court in Navy SEAL. The Doe court
asked whether judicial intervention involved “the
exercise of military expertise or discretion,” and
evidently concluded otherwise. See id. at 127. Rather,
an APA claim is justiciable insofar as it merely asks
whether the military acted arbitrarily and capriciously
in its procedural review. See id. at 128. The Court
would be inclined to agree that those sorts of claims are
justiciable because (1) the test is concerned
predominantly with legal process and (2) it does not
involve second-guessing the wisdom of military
judgments dealing with readiness and lethality. As
such, the Court is not inclined to depart from its
tentative conclusion in Navy SEAL that RFRA
challenges to military medical requirements more
likely raise justiciability concerns.
As for justiciability regarding scientific
determinations that “are not matters of judicial
expertise but are matters of . . . technical expertise,”
Plaintiff offers little argument to the contrary. To
support such a proposition, Plaintiff cites, in a footnote,
Tandon v. Newsom, 141 S. Ct. 1294 (2021) and Roman
App. 20
Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63
(2020). In the former, and as this Court explained in
Navy SEAL, the Supreme Court did not come close to
determining the immunological wisdom of certain
public health restrictions. Rather, it held that a state
may not treat religious and non-religious institutions
differently when imposing a public health restriction.
141 S. Ct. at 1297-98. Indeed, of the federal courts that
have enjoined federal health measures in the recent
past, they have done so almost exclusively on
procedural, and not technical, grounds. See, e.g.,
Georgia v. Biden, --- F. Supp. 3d ---, 2021 WL 5779939,
at *9-10 (S.D. Ga. Dec. 7, 2021) (enjoining federal
contractor vaccine mandate on grounds that mandate
exceeded statutory authority); Health Freedom Def.
Fund, Inc. v. Biden, --- F. Supp. 3d ---, 2022 WL
1134138, at *12 (M.D. Fla. Apr. 18, 2022) (enjoining
federal mask mandate on airplanes on grounds that
mandate exceeded statutory authority). On the other
hand, this case and Navy SEAL require a detailed
review of the scientific, medical, immunological, and
epidemiological bases of a vaccination mandate as to
Plaintiff to answer whether vaccination is the least
restrictive means of accomplishing Plaintiff’s specific
military duties. These are fraught questions of medical
science that the judiciary generally “lacks the
background, competence, and expertise to assess.” See
S. Bay United Pentecostal Church v. Newsom, 140
S. Ct. 1613, 1614 (2020) (Roberts, C.J., concurring).
Accordingly, both military and scientific justiciability
concerns remain in this case.
App. 21
C. Merits
Before proceeding to the likelihood of success on
Plaintiff’s RFRA claim, the heart of this case, a word on
Plaintiff’s Free Exercise claim is necessary. Plaintiff’s
supplemental briefing does not appear to seriously
contest that the rational basis test in Goldman v.
Weinberger, 475 U.S. 503 (1986) remains good law.
Plaintiff writes that RFRA “deliberately narrowed”
Goldman’s holding that a Jewish servicemember had
no Free Exercise right to wear a yarmulke in military
uniform. 475 U.S. 504. It likely goes without saying
that Congress cannot narrow a constitutional holding,
although it can provide statutory rights beyond that
which the Constitution protects. Plaintiff seems to also
argue that, even if Goldman stands, it applies only to
“operational, strategic, or tactical” military decisions.
Pl.’s Supp. Br. at 8. The Court does not find such a
holding in that decision, and the Court would be hardpressed to consider grooming standards “operational,
strategic, or tactical.”7
7
Plaintiff in her supplemental briefing seems to suggest a
historical right to religious accommodation during military service.
Whatever history Plaintiff may bring to bear, history cannot
rewrite statutes, Spicer v. Biden, --- F. Supp. 3d ---, 2021 WL
5769458, at *5 (D.D.C. Dec. 4, 2021) (DLF), and Plaintiff does not
ask the Court to overturn a century of Supreme Court precedent
articulated in Goldman and its progeny by finding such a right in
the Free Exercise Clause as an original matter. Responding briefly,
however, although Plaintiff accurately notes that colonial
authorities granted religious exemptions from service during the
colonial period, it is inaccurate to say that once drafted, militiamen
could always be religiously exempted from otherwise necessary
military duties. See, e.g., Peter Brock, “Colonel Washington and
the Quaker Conscientious Objectors,” 53 Quaker History 12, 14
App. 22
As to RFRA, the law provides that the government
“shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of
general applicability.” 42 U.S.C. § 2000bb-1(a). To
(1964). Indeed, the military history of colonial America and the
Early Republic suggest that most early military leaders considered
strict military discipline absolutely necessary to accomplish
military ends, even more so among those not conscripted to fight.
See, e.g., Bradley J. Nicholson, “Courts-Martial in the Legion
Army: American Military Law in the Early Republic, 1792-1796,”
144 Mil. L. Rev. 77, 84 (1994) (further noting that early American
military law essentially incorporated British law).
Moreover, the fact that some colonial legislatures gave
statutory reprieve from a militia draft should not distract from the
colonial history establishing a deep skepticism of religious
objectors having a right to avoid military service. See Ellis West,
The Right to Religion-Based Exemptions in Early America: The
Case of Conscientious Objectors to Conscription, 10 J.L. & Religion
367, 376-77 (1994). Cf. also Fulton v. City of Phila., 141 S. Ct.
1868, 1906 (2021) (Alito, J., concurring in the judgment) (noting
Free Exercise claims have long been due different constitutional
treatment in military context notwithstanding colonial reprieves
from service).
Even during the nascent civil liberties movement during the
First World War, legal authorities met conscientious objectors with
a great degree of incredulity. See Christopher Capozolla, Uncle
Sam Wants You 82 (2008) (recounting letter authored by Justice
Harlan Fiske Stone in which he wrote, reflecting on his service as
an adjudicator of religious exemptions, that he had not had “a
change of heart” after rejecting a number of requests because “one
must obey some laws of which [he] does not approve, and even
participate in a war [one may] think ill advised”). This cursory
historical discussion is largely academic, however. Whatever
history’s purported role in resolving RFRA disputes, the parties
have not fully briefed it, and the Court need not rest any legal
analysis upon it.
App. 23
prevail on a RFRA claim, a plaintiff must first show a
“religious exercise” that has been burdened. Wilson v.
James, 139 F. Supp. 3d 410, 424 (D.D.C. 2014) (APM);
United States v. Sterling, 75 M.J. 407, 415 (CAAF
2016). If confronted with a “religious exercise,” the
government may impose a substantial burden on that
religious exercise “only if it demonstrates that the
application of the burden to the person––(1) is in
furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that
compelling government interest.” Id. § 20000bb-1(b).
The parties do not contest that Plaintiff maintains
a sincerely held religious belief and that vaccination
would substantially burden that belief. Rather, the
parties mainly contest this Court’s understanding of
RFRA in the military context and whether the facts in
this case mandate a different result based on that law.
In Navy SEAL, the Court looked to Singh v. McHugh,
109 F. Supp. 3d 72, 86 (D.D.C. 2015) (ABJ) amended
and superseded in irrelevant part 185 F. Supp. 3d 201
(D.D.C. 2016). After a discussion of that case, RFRA’s
text, and its legislative history, the Court agreed with
Singh’s main holding that RFRA applies to the
military, and any military regulation that substantially
burdens free exercise is due RFRA’s statutory strict
scrutiny. Navy SEAL, 2022 WL 1294486, at *8.
Nevertheless, the Court “stresse[d] that context is
important.” Id. In part relying on Singh’s discussion of
RFRA’s legislative history, the Court concluded that
the best reading of the statute, at least with a dearth of
authority and a relatively undeveloped record in Navy
SEAL, was that the military’s technical and scientific
conclusions should receive due regard in determining
App. 24
whether those technical and scientific judgments are in
fact the least restrictive means to accomplish the
military interest at issue as to a particular military
claimant. Id. This very tentative conclusion is also
rooted in other Supreme Court decisions generally
cautioning that the judicial power is relatively illequipped to resolve highly technical conclusions of fact
where their resolution is textually committed to a
coordinate branch in the first instance. See id.
The Government appears to agree with this
approach whole-heartedly. Defs.’ Supp. Br. at 1-2.
Plaintiff, however, cautions that such an approach
“[a]pplies different levels of deference to RFRA claims,
according to the subject of the sincerely held religious
belief, would result in treating religious practice
unequally.” Pl.’s Supp. Br. at 7. The Court sees nothing
in Navy SEAL even remotely suggesting such a test.
Rather, the Court suggested that the military’s
technical, scientific findings supporting the wisdom of
a particular, generally applicable military order may be
due some regard greater than those resting on no such
findings. See Navy SEAL, 2022 WL 1294468, at *10. In
other words, the military receives no degree of
deference based on the exercise regulated, but on the
scientific and strategic conclusions on which the
regulation is based. Beyond a citation to Katcoff v.
Marsh, 755 F.2d 223, 234 (2d Cir. 1985), which stands
for the unremarkable proposition that soldiers enjoy
some First Amendment protections as a matter of
constitutional law, Plaintiff offers no authority
suggesting that the Court should take a different tack.
Plaintiff will undoubtedly have an opportunity to do so
App. 25
as this case progresses, but at this early stage of the
case where Plaintiff must show likelihood of success on
the merits (among other things), the Court is not
inclined to change tack just yet.
That brings the Court to the most important aspect
of Plaintiff’s request for preliminary relief: applying her
situation to the law set out in Navy SEAL. Doing so,
and assuming this case is justiciable in the first place,
Plaintiff makes a much stronger showing of likelihood
of success on the merits on her RFRA claim than the
plaintiff in Navy SEAL.
As to whether the military has a compelling
government interest in mandating various vaccines,
and COVID-19 vaccination in general, “the [Space
Force] has a compelling interest in preventing COVID19 from impairing its ability to carry out its vital
responsibilities, as well as a compelling interest in
minimizing any serious health risk to [Space Force]
personnel.” See Austin v. U.S. Navy Seals 1-26, 142
S. Ct. 1301, 1305 (2022) (Alito, J., dissenting). Facing
the same orders at issue in this case, another district
court that granted preliminary relief nevertheless
agreed that the Air Force undoubtedly shares that
compelling government interest. Air Force Officer v.
Austin, --- F. Supp. 3d ---, 2022 WL 468799, at *9 (M.D.
Ga. Feb. 16, 2022) (“It would be a waste of time and
wrong to state that ‘[s]temming the spread of COVID19’ isn’t a compelling interest––the Supreme Court has
already decided it is.”). The Court is again inclined to
conclude that “the sine qua non of military interests is
keeping an individual servicemember fit enough to
App. 26
accomplish their tasks in furtherance of national
security.” Navy SEAL, 2022 WL 1294486, at *9.
In a RFRA case, however, the more important
question is whether the military has a compelling
government interest in vaccinating the particular
servicemember at issue. Plaintiff, like the plaintiff in
Navy SEAL, seems to suggest that the military’s
general compelling interest in ensuring the health of
its servicemembers does not distill to a compelling
interest in ensuring that Plaintiff remains healthy
enough to accomplish her duties. As the Court
explained in Navy SEAL, it likely does by logic alone,
but the Court nevertheless must look to Captain
Creaghan’s duties specifically.
As Captain Creaghan argues at length in her
supplemental briefing, her role is quite different from
a Navy SEAL. Unlike a Navy SEAL, who must be
deployable at a moment’s notice and whose sickness on
a mission could doom an entire team, it appears
Captain Creaghan does not deploy and works solely in
an office setting. ECF No. 22-10 at 2. Captain
Creaghan argues that this difference alone means the
military does not have a compelling interest in her
vaccination. Pl.’s Supp. Br. at 1-2.
To the extent that the main benefit of vaccination
against the most prevalent SARS-CoV-2 variants and
subvariants at the moment is reducing the severity and
duration of disease, the inquiry centers on the military
consequences of Captain Creaghan’s heightened risk of
severe COVID absent vaccination. See Navy SEAL,
2022 WL 1294486 at *10. The question is both
actuarial, to the extent that Plaintiff presents a factual
App. 27
question about the degree of risk, and tactical, to the
extent to which Plaintiff challenges Defendants’
insistence that Plaintiff’s vaccination is necessary to
safeguard the military tasks with which she has been
entrusted. As the Court explained in Navy SEAL,
assuming such a question is justiciable, there may well
be some roles in the military that are entirely fungible
and servicemembers who are entirely replaceable with
little to no adverse effects on military interests.
Plaintiff argues that this is such a case, relying on her
direct commanding officer’s initial recommendation
that Plaintiff’s request for an exemption be approved.
Pl.’s Supp. Br. at 4.
As the Court explained above, Col. Andrea found
that “[t]he projected impact to [Plaintiff’s] unit is low”
if she remains “unvaccinated.” ECF No. 22-13 at 89. He
suggested that Plaintiff’s unit “has backup personnel
available to provide positional coverage in the event of
any operations personnel requiring quarantine.” Id.
The “backup personnel” appear to come, at least in
part, from the fact that Plaintiff works in shifts such
that there are other officers nearby who execute the
same job. ECF No. 23-1 at 8. Part of his opinion,
however, also relied on the fact that Plaintiff had
previously contracted COVID. ECF No. 22-13 at 89.
To be sure, Col. Andrea’s recommendation, ratified
by his commanding officer, is entitled to its own due
regard as an exercise of military expertise and
judgment. As Plaintiff’s commanding officer, he
understands her role better than anyone else, and his
view is certainly due even more regard if, as Plaintiff
alleges, the RRT that recommended denial of Plaintiff’s
App. 28
request neither “talked with [Plaintiff]” or visited her
command. ECF No. 23-1 at 4. That various officers
within Plaintiff’s chain of command came to different
conclusion when exercising their military expertise and
that at least two of them consider Plaintiff fairly
fungible is strong support for Plaintiff’s RFRA claim.
Ultimately, however, not strong enough for a
preliminary injunction. First and foremost, a religious
exemption from a medical requirement always starts
from a disadvantaged position relative to other
requests because, as the previously explained, there
can be no greater military interest than in keeping
each servicemember fit and healthy enough to
accomplish their duties. See Navy SEAL, 2022 WL
1294486, at *10. Plaintiff argues that Navy SEAL and
this case are distinguishable on the facts. The Court
disagrees. As an officer, the military likely has a
greater interest in her health than enlisted personnel.
See Short, 2022 WL 1051852, at *6. Additionally,
Plaintiff’s specific duties strike the Court as relatively
more important to national security. She has
“operational control and on-line decision-making
responsibilities for all aspects of NRO operations,”
which evidently includes maintaining the integrity of
military spacecraft while executing highly sensitive
and important missions. ECF No. 22-10 at 2. Major
General Shipton relied on these facts in recommending
denial, ECF No. 22-13 at 92, and her argument, ratified
by Lieutenant Generals Whiting and Miller, is
compelling. Although a close call, the Court is inclined
to find––on this record and at this early stage of the
case––a compelling government interest in Plaintiff’s
vaccination.
App. 29
As for whether vaccination is the least restrictive
means, the Court already concluded on a similar record
that “the military’s scientific and medical conclusion
[that nothing less than vaccination sufficiently protects
a servicemember from the consequences of COVID-19],
which rest[s] on the great weight of scientific
authority,” should not be rejected, and the Court is not
inclined to depart from that tentative position. See
Navy SEAL, 2022 WL 1294486, at *11. In addition to
arguments the Court addressed in Navy SEAL,
Plaintiff also argues that vaccination cannot be the
least restrictive means because “Defendants do not
prohibit contact outside of work.”8 On this record, like
in Church, that is all the more reason vaccination may
be necessary. See 2021 WL 5179215, at * 19 (“Civilian
employees who continue to telework do not live in a
vacuum.”)
Plaintiff also asserts, relying on Air Force Officer,
that the Air Force is “rubber stamping” exemption
denials. Repl. at 15 (citing 2022 WL 468799, at *11
(“the Court easily finds that the Air Force’s process to
protect [RFRA] rights is both illusory and insincere”)).
On this record, such a finding is much more difficult.
Defendants represent, and Plaintiff does not contest,
that the Air Force has approved forty-one religious
8
Plaintiff also argues that “Defendants choose not to extend its
[vaccination] mandate to contractors [who] work in the same space,
on the same matters.” Repl. at 14. That seems to be incorrect. The
Executive promulgated a regulation requiring all federal
contractors to be vaccinated against COVID-19, but that regulation
has been preliminarily enjoined nationwide. Georgia v. Biden, --F. Supp. 3d ---, 2021 WL 5779939 (S.D. Ga. Dec. 7, 2021), appeal
pending, No. 21-14269 (11th Cir.).
App. 30
exemption requests. Opp. at 9. Plaintiff evidently
thinks this number too low, but a low approval rate is
not itself evidence of cursory review of exemption
requests. The review process here was also much
lengthier and more involved than in Navy SEAL.
Defendants’ Exhibit 12, “Captain Creaghan Religious
Accommodation Request Package,” is 111 pages. Aside
from the RRT, Captain Creaghan’s request was
reviewed by five officers, including the Surgeon
General of the Air Force, who each issued individual,
specific findings. The RRT report also made specific
findings based on its characterization of Plaintiff’s
duties. It found that Captain Creaghan was
“responsible for directing daily operations and
maintenance for NRO space and ground systems and
assuring overall spacecraft health and mission
success.” ECF No. 22-13 at 63. It concluded that
Plaintiff is “a practicing Catholic who believes she
would be a willing participant and beneficiary of
abortion” and thereby holds a sincere religious belief.
Id. at 65. It found a “compelling government interest in
ensuring military mission success” through
vaccination. Id. at 66. It further found that “[t]elework
is not a viable less restrictive means, because
[Plaintiff’s] duties require physical presence on an
operations floor with 110 personnel.” Id. at 67. On the
Court’s reading, Lieutenant General Whiting had a full
record with findings specific to Plaintiff’s beliefs and
duties when he denied Plaintiff’s request.
As such, and on the whole, there remain a number
of questions as to whether Plaintiff can carry her
burden to show that she is likely to succeed on her
RFRA claim on the record at this time.
App. 31
C. Irreparable Harm
The Court next considers whether Plaintiff has
demonstrated “irreparable harm.” CityFed Fin. Corp.
v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.
Cir. 1995). To constitute “irreparable harm,” the injury
alleged must be both “certain and great, actual and not
theoretical, beyond remediation, and of such
imminence that there is a clear and present need for
equitable relief.” Mexichem Specialty Resins, Inc. v.
EPA, 787 F.3d 544, 55 (D.C. Cir. 2015) (cleaned up). A
mere “possibility of irreparable harm” is not enough; a
plaintiff must demonstrate that the alleged injury is
“likely in the absence of a injunction.” Winter v. Nat’l
Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (cleaned
up). Plaintiff has not carried her burden.
First, it is somewhat unclear whether separation
proceedings are actually certain to proceed. Although
Plaintiff’s direct commanding officer warned that “if
the initial dose is not completed by [a] deadline,
initiation of administrative discharge will be pursued,”
ECF No. 8-5 at 4 (emphasis added), the applicable form
letter provides that “[f]ailure to comply with this lawful
order may result in administrative and/or punitive
action,” id. at 2 (emphasis added). Were separation
proceedings, or any other adverse action, certain to
occur, Plaintiff has not shown that those actions would
be irreparable. See Navy SEAL, 2022 WL 1294486, at
*15 (“[a]n adverse fitness report may be purged from
Plaintiff’s files, adverse separation proceedings may be
dissolved,” and military records can be corrected in
subsequent proceedings). Nor has Plaintiff
demonstrated how the financial consequences of
App. 32
discharge are the sorts of loss of employment benefits
that, as the Court held in Church, is not irreparable
harm absent a “genuinely extraordinary situation.”
2021 WL 5179215, at *15 (citing Sampson v. Murray,
415 U.S. 61, 92 n.68 (1974); see also Short, 2022 WL
1051852, at *9 (citing Hartikka v. United States, 754
1516, 1518 (9th Cir. 1985) (“loss of income, loss of
retirement and relocation pay, and damage to [the
plaintiff’s] reputation resulting from the stigma
attaching to less than honorable discharge” are not
irreparable injuries)). Finally, as the Court explained
in Navy SEAL, because Plaintiff likely only faces the
deprivation of a statutory right, Plaintiff has not shown
irreparable injury predicated on the loss of a
constitutional right. See 2022 WL 1294486, at *16.
D. Public Interest
“The final two factors the Court must consider when
deciding whether to grant a preliminary injunction are
the balance of harms and the public interest.” Sierra
Club v. U.S. Army Corps of Eng’rs, 990 F. Supp. 2d 9,
41 (D.D.C. 2013). Where, as here, the government is a
party to the litigation, these two factors merge and are
“one and the same, because the government’s interest
is the public’s interest.” Pursuing Am.’s Greatness v.
FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). “Although
allowing challenged conduct to persist certainly may be
harmful to a plaintiff and the public, harm can also
flow from enjoining an activity, and the public may
benefit most from permitting it to continue.” Sierra
Club, 990 F. Supp. 2d at 41. Therefore, when
“balanc[ing] the competing claims of injury,” the Court
must “consider the effect on each party of the granting
App. 33
or withholding of the requested relief.” Winter v. Nat’l
Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
On the present record, as in Navy SEAL, the
public’s interest in military readiness and the
military’s interest in Plaintiff’s health outweigh
Plaintiff’s religious liberty interest. See 2022 WL
1294486 *17. As the Court explained in Church, the
military has concluded, based on a long and detailed
scientific record, that vaccination is necessary to
protect its servicemembers individually and to further
national security more broadly. 2021 WL 5179215, at
*19. At the very least, without a lengthier record, the
Court would not be inclined to “disturb th[o]se wellfound military judgments.” Id. Nor has Plaintiff offered
any reason in this case for the Court to depart from
Navy SEAL and Church.
IV. CONCLUSION
An appropriate order
memorandum opinion.
accompanies
this
Dated: May 12, 2022
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
App. 34
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 22-0981 (CKK)
[Filed May 12, 2022]
_______________________________________
MARIELLA CREAGHAN,
)
Plaintiff
)
)
v.
)
)
LLOYD AUSTIN, in his official capacity )
as Secretary of the United States
)
Department of Defense, et al.,
)
Defendants.
)
______________________________________ )
ORDER
(May 12, 2022)
For the reasons discussed in the accompanying
Memorandum Opinion, it is hereby
ORDERED, that Plaintiff’s [11] Motion for a
Temporary Restraining Order and/or Preliminary
Injunction is DENIED. It is further
ORDERED, that the parties shall file, on or before
June 2, 2022, a joint status report explaining how they
intend to proceed in this matter.
App. 35
SO ORDERED.
Dated: May 12, 2022
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
App. 36
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 1:22-cv-00981
Hon. Colleen Kollar-Kotelly
[Filed January 24, 2023]
__________________________________________
CAPTAIN MARIELLA CREAGHAN
)
Plaintiff,
)
)
v.
)
)
LLOYD J. AUSTIN III, FRANK KENDALL, )
LT. GEN. STEPHEN N. WHITING, and
)
LT. GEN. ROBERT I. MILLER,
)
Defendants.
)
_________________________________________ )
DECLARATION OF
CAPTAIN MARIELLA CREAGHAN
I, Captain Mariella Creaghan, make this
supplemental declaration pursuant to 28 U.S.C. § 1746
and based on my personal knowledge:
1.
I continue to undergo harm for following my
sincerely held religious beliefs instead of following the
Defendants’ mandate by participating in vaccination
that conflicted with my faith.
App. 37
2.
The Secretary of Defense’s Memorandum
dated 10 January 2023 states that “[o]ther standing
Departmental policies, procedures, and processes
regarding immunizations remain in effect. These
include the ability of commanders to consider, as
appropriate, the individual immunization status of
personnel in making deployment, assignment, and
other operational decisions, including when vaccination
is required for travel to, or entry into, a foreign nation.”
3.
This means that while the 24 August 2021
Memorandum was rescinded, the DoD is still making
decisions based on whether servicemembers received or
did not receive the COVID-19 vaccination, without
providing a religious accommodation to
servicemembers who abstained due to compliance with
their sincerely held religious beliefs.
4.
For example, my Individual Medical
Readiness (IMR) status still indicates that I am not
medically ready. Because of my religious abstention
from the COVID-19 vaccine, my IMR indicates that I
am not currently up to date with required IMR
standards.
5.
If a servicemember was granted a religious
exemption, an administrative exemption, or a medical
exemption, or if the status of a servicemember’s
exemption was pending, the IMR reflected that the
servicemember was up to date with their vaccinations
and medically ready.
App. 38
6.
The DoD’s current policy regarding IMR is
available at https://www.esd.whs.mil/portals/54/
documents/dd/issuances/dodi/602519p.pdf, last visited
Jan. 24, 2022.
7.
While IMR status is not only factor
considered for deployment and assignment deicisions,
it is heavily weighted.
8.
The controlling policy regarding both official
and personal travel “Consolidated Department of
Defense Coronavirus Disease 2019 Force Health
Protection Guidance”, first implemented on August 29,
2022, is still in place. Available at https://media.
defense.gov/2022/Aug/ 30/2003067565/-1/-1/0/
CONSOLIDATED-DEPARTMENT-OF-DEFENSECORONAVIRUS-DISEASE-2019-FORCE-HEALTHPROTECTION-GUIDANCE-REVISION-3.PDF, last
visited Jan. 24, 2023; see also https://www.airforce
medicine.af.mil/Portals/1/Documents/COVID-19/
TAB%202%20-%20DAF%20Supplement%20to%
20DoD%20Consolidated%20FHPG%20R3%20%2031
Aug22%20Final.pdf, last visited Jan. 24, 2023, last
visited Jan. 24, 2023 (adopting the Department of
Defense (DoD) policies to the U.S. Air Force) (herein
after “DoD Policies”).
9.
The policies specifically require travel
approval, both official and personal, to be based on the
vaccination status of a servicemember.
10.
The DoD policies do not apply to DoD
contractors.
App. 39
11.
The DoD policies do not provide consideration
for a religious accommodation.
12.
Presently, DoD policies are restricting my
travel, trainings, future promotions, etc. due to my
abstention from the COVID-19 vaccine on religious
grounds.
13.
I was scheduled to attend a required training
for Active Duty Space Force Captains in April 2022
called Squadron Officer School (SOS). I was originally
allowed to attend the training, even though I was
unvaccinated, because my application for a religious
exemption was considered pending. When my appeal
was denied, however, the denial changed my status and
I was no longer allowed to travel to complete the
training. I am still waiting to complete this required
training. The training is required to be completed by an
Active Duty Captain before the end of seven years with
the U.S. Air Force or U.S. Space Force.
14.
The current policies allow for Defendants to
disallow me from attending the required training due
to my religious abstention from the COVID-19 vaccine.
Without completing the training, I will not be
considered for promotion.
15.
I am attaching a Memoradum dated 18
January 2023, where I request a Travel Waiver to
attend SOS. Attachment A.
16.
While my immediate Commander and Delta
Commander both concur with my Travel Waiver, they
also originally approved my application for a religious
exemption from the COVID-19 vaccine, so it is no
App. 40
consolation as their approval could be overridden, as it
previously has been.
17.
Defendants’ continuation with “[o]ther
standing Departmental policies, procedures, and
processes” allows for continued consequences and
punishment based on the status of a servicemember’s
religious abstention from the COVID-19 vaccine.
18.
Even though the 24 August 2021
Memorandum has been rescinded, Defendants continue
to substantially burden my decision to abstain from the
COVID-19 vaccination due to my sincerely held
religious beliefs through their ongoing policies,
procedures, and processes.
19.
Defendants continue to negatively
discriminate against me without being required to
justify their decisions and without concern for the
consequences their continued policies, procedures,
processes, and decisions.
20.
Defendants continue to favor individuals who
do not have a sincerely held religious belief that
requires them to abstain from COVID-19 vaccination
without following the legal standard required in the
Religious Freedom Restoration Act.
I declare under penalty of perjury that the foregoing
is true and correct.
Executed on the 24th day of January 2023.
App. 41
CREAGHAN.MARIELLA.
THERESA.1404914614
Digitally signed by
CREAGHAN.MARIELLA.THERESA.1404914614
Date: 2023.01.24 20:50:05 -05'00'
_____________________________
Captain Mariella Creaghan
App. 42
ATTACHMENT A
UNCLASSIFIED
[SEAL]
DEPARTMENT OF THE AIR FORCE
UNITED STATES SPACE FORCE
18 January 2023
MEMORANDUM FOR ADF-E SOPS/CC
FROM: CAPTAIN MARIELLA CREAGHAN, ADF-E
SOPS, USSF
SUBJECT: Temporary Duty Mission Critical Travel
Waiver Request
References: (a)
(b)
(c)
Department of the Air Force,
31 Aug 22, DAF Supplement to
DoD Consolidated Force Protection
Health Guidance
Undersecretary of Defense for
Personnel and Readiness
Memorandum, 30 Aug 22, DoD
Consolidated Force Protection
Health Guidance (Rev 3)
Secretary
of
Defense
Memorandum, 10 Jan 23,
Rescission of August 24, 2021 and
November 30, 2021 Coronavirus
Disease 2019 Vaccination
Requirements for Members of the
Armed Forces
App. 43
1. In accordance with the Department of Defense
guidance outlined in Ref (b), and the Department of the
Air Force guidance outlined in Ref (a), personnel not
vaccinated against Coronavirus 2019 (COVID-19) are
limited to mission-critical official travel, both domestic
and international. The Department of the Air Force
Guidance further stipulates that travel not explicitly
stated to be mission-critical in the DoD guidance must
receive a “mission-critical” determination from the
Secretary of the Air Force, delegated to the Under
Secretary of the Air Force.
2. Although Ref (c) rescinded the requirement for all
members of the Armed Forces to be vaccinated against
COVID-19, it specifically states “Other standing
Departmental policies, procedures, and processes
regarding immunizations remain in effect.” At this
time, guidance in Ref (a) and Ref (b) has not been
rescinded nor superseded.
3. Temporary duty travel to Professional Military
Education (PME) is not currently authorized as
“mission-critical” travel. PME is required for career
advancement, and in-residence Squadron Officer
School (SOS) is required for all Active Duty Space
Force Captains. I am fully eligible for SOS.
4. I request a waiver or mission-critical determination
authorizing travel to SOS at Maxwell AFB, AL for class
23D (17 April 2023 – 19 May 2023).
5. I agree to comply by the DoD Force Health
Protection travel guidance in effect at the time of
travel, and will complete a risk assessment, testing
and/or Restriction of Movement (ROM) as required.
App. 44
6. If you have any questions, please contact Capt
Mariella Creaghan at XXXXXX or XXXXXX.
/s/ Mariella T. Creaghan
MARIELLA T. CREAGHAN, Capt, USSF
Mission Director
2 Attachments
1. Mission Critical Travel Justification Memorandum
2. Mission Critical Travel Authorization – Capt
Mariella Creaghan
App. 45
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 1:22-cv-00981
Hon. Colleen Kollar-Kotelly
[Filed May 2, 2022]
__________________________________________
CAPTAIN MARIELLA CREAGHAN
)
Plaintiff,
)
)
v.
)
)
LLOYD J. AUSTIN III, FRANK KENDALL, )
LT. GEN. STEPHEN N. WHITING, and
)
LT. GEN. ROBERT I. MILLER,
)
Defendants.
)
_________________________________________ )
DECLARATION OF
CAPTAIN MARIELLA CREAGHAN
I, Captain Mariella Creaghan, make this
supplemental declaration pursuant to 28 U.S.C. § 1746
and based on my personal knowledge:
1.
In addition to the Verified Complaint, I
previously submitted to this Court, this Declaration
provides further details to address matters raised in
the Defendants’ Memorandum in Opposition and
attached exhibits.
App. 46
2.
Since the Defendants filed their opposition on
the evening of 29 April 2022, the Unites States Space
Force has scheduled me to work three consecutive
twelve hours shifts, on 30 April, 1 May and 2 May
2022. It is an honor to work in this capacity.
3.
I have been working under a temporary
exemption from the COVID-19 vaccine mandate since
2 November 2021, without issue.
4.
I work primarily with a few military
personnel and many contractors, who enter the
building and conduct work without a vaccination
requirement.
5.
I am familiar with other individuals, not in
my unit, who received administrative exemptions, but
not a religious accommodation.
6.
My workspace is well-ventilated. I have been
inside the air handlers as part of my training. The air
handlers are massive with redundant systems. Every
office building has air flow and HVAC systems. My
office, of course, does as well. Aerospace Data FacilityEast increased the turnover rate of outside air by
three-fold in response to COVID-19, and it has
remained this way. The ventilation is remarkably good.
7.
As an example of the above, one night while
working, I thought I smelled a skunk on the operations
floor along with one of my teammates. The smell
became stronger, so I called the facilities team. It
turned out that a skunk had sprayed into the air intake
and the air handlers were already at their highest air
turnover setting (due to the COVID protocol) so there
was not much the team could do to reduce the smell
App. 47
more quickly. The air completely refreshed in a short
period of time and the smell was gone.
8.
Where my desk is positioned, is somewhat
near a set of doors that remain open (improving
ventilation), but there are signs on the doors asking
visitors and co-workers to go around the doors and not
through.
9.
There is no regulation limiting contact with
unvaccinated individuals outside of work hours.
10.
The Defendants’ vaccine mandate required,
unless accommodated, servicemembers to be “fully
vaccinated” (i.e., 2 weeks after second dose) by 2
November 2021. The first dose of the Pfizer vaccine was
due 28 Sep 2021. There is no booster requirement.
Many individuals under Defendants’ command were
vaccinated in February and March of 2021. It has been
over a year, and those individuals have not been
required to obtain a booster. I know other
servicemembers who underwent vaccination in May
and June of 2021.
11.
General Shipton works on a different site
approximately forty-five minutes away from where I
work. We have virtual meetings daily. All of my
meetings are virtual except for one weekly meeting
that is an in-person, virtual hybrid meeting. There are
no plans to change those meetings to in person.
12.
I requested to see the Commander’s
Evaluation that is attached to the Defendants’
Memorandum in Opposition at page 89 of Exhibit 12
upon notice of my denial on 15 February 2022.
Defendants would not provide me with a copy.
App. 48
13.
I filed a Freedom of Information Act Request
for the document on 17 February 2022. Defendants
requested an extension to produce the document until
26 April 2022. On 26 April 2022, Defendants did not
produce the document or respond with any update.
14.
My counsel for this case contacted the
Defendants’ attorneys, who then produced the
document by filing it in Exhibit 12.
15.
I had been requesting this document for over
two months, and it was produced for the first time on
Friday. This request is mentioned in the 5 April 2022
order.
16.
During my initial Religious Accommodation
Request, I and my commander, Lt Col Andera, both
believed that the NRO would be hosting the Religious
Resolution Team (RRT) and that the Deputy Director
of the NRO (Maj Gen Donna Shipton), would be
making the decision on my package, as her position is
considered to be equivalent to that of a MAJCOM
commander. My original package submitted on 30
September 2021 is directed to her.
17.
On 25 October 2021, I was notified that the
RRT would be taking place outside of my chain of
command and would instead be run by Air Force
leadership at Joint-Base Anacostia-Bolling. My
commander requested the ability for him or my Delta1
Commander (Col Frankino) to participate in the board
and speak to my position and duties, but was denied.
1
A Space Force Delta is the equivalent of an Air Force Group or
Wing
App. 49
This means the board was entirely Air Force-run, with
no representation from the Space Force or my chain of
command.
18.
I do not know and have never met anyone on
the Religious Resolution Team (RRT). The RRT was
supposed to be conducted at a local level, but instead it
was sent to a different base. No one on the RRT has
ties to my unit or knowledge of my job duties. No one
on the RRT is part of the Space Force. No one on the
RRT talked with me or conducted an inquiry of lesser
restrictive alternatives for my particular unit.
19.
My commander, Lt Col Andera, has observed
my job duties first hand and knows the operations of
the NRO Aerospace Data Facility-East. He knows that
my position is non-deploying and understands the
requirements of my duties.
20.
On 3 November 2021, my commander told me
that my package had met the RRT, the RRT had given
their recommendation and that it was going to go to Lt
Gen Whiting for a decision.
21.
It is understandable that there was confusion
on the Religious Accommodation process, as the Air
Force Instruction outlining the RRT process (DAFI 52201) was recently published on 23 June 2021, as a new
AFI, not superseding any previous publications, but
implementing this new process for resolving religious
accommodation requests which had previously been
App. 50
governed solely by DAFPD 52-2, Accommodation of
Religious Practices in the Air Force.2
22.
On 5 April 2022, I was notified that my
religious accommodation appeal was denied.
23.
I am under extreme stress, placed on me by
the Defendants, to violate my sincerely held religious
beliefs.
24.
Defendants are coercing me to change my
sincerely held religious beliefs pertaining to benefiting
from the use of aborted fetal cell lines and obtain a
morally objectionable vaccine.
25.
Defendants have promised that if I do not
violate my religious beliefs, I am going to receive a
letter of reprimand and I will be written up for
misconduct, starting after 13 May 2022.
26.
The reason for this action is the denial of a
religious accommodation, and there is no further way
for me to challenge this denial within the military.
27.
I have exhausted all administrative remedies
to try to obtain a religious accommodation. There is no
further administrative process that would allow me to
appeal further and/or change Defendants’ decision
regarding my religious accommodation.
28.
Administrative discharge would be for
“Misconduct”. While technically an administrative
action, it is not related to the religious accommodation
2
https://static.e-publishing.af.mil/production/1/af_hc/publication/
afpd52-2/afpd52-2.pdf
App. 51
being approved or disapproved. It is for the failure to
obey the order to receive the vaccine.
29.
I am presently undergoing discrimination due
to my sincerely held religious beliefs.
30.
I have been passed up for training twice
because of my vaccination status to my sincerely held
religious beliefs. A person who held religious beliefs
that did not oppose the use of aborted fetal cell lines
attended in my place.
31.
Absent injunctive relief, I will either have to
act contrary to my sincerely held religious beliefs and
obtain an available COVID-19 vaccination by 13 May
2022 or the 5 April 2022 order will be enforced, as
promised, and I will be punished for my faith.
32.
My commander stated to me on 11 April that,
absent relief, I will receive a Letter of Reprimand
(LOR) for violating his 5 April order to receive the
COVID-19 vaccination. This LOR would be issued for
“Failure to follow a lawful order”. My commander also
indicated that this would be followed by a second order
to receive the COVID-19 vaccination and additional
disciplinary action (either a second LOR or an
Article 15) should I fail to comply with the second
order.
33.
LORs are mandated for inclusion in Officer
Selection Record (OSR), which is the record viewed by
a promotion board when members are eligible for a
App. 52
promotion board. See DAFI36-2907_DAFGM2022-01,
27 April 2022, Figure A9.23
34.
For an Officer, a LOR automatically
establishes an Unfavorable Information File (UIF)
which is maintained for at least two years. A record of
a member with a UIF is flagged, meaning that anyone
viewing the record is aware that the member has a UIF
and derogatory information in their record. Existence
of a UIF is considered a negative quality force indicator
and makes the member ineligible for many programs or
career opportunities necessary for advancement.
35.
Existence of a UIF and receipt of a LOR
constitute grounds for a referral Officer Performance
Report (OPR). Referral reports are indicated when
officers are considered to have not met standards
during the reporting period and/or if the report
contains negative performance statements. Guidance
in DAFI 36-2406 shows bias towards issuing referral
reports: “When doubt arises as to whether a comment
is a referral comment or not, refer the evaluation.”
DAFI 36-2406 paragraph 1.10.2.14
36.
Referral reports are kept in an officer’s
permanent record and are visible at all promotion
boards, developmental education boards and other
competitive selection processes. Existence of referral
reports within the past 5 years frequently makes
3
https://static.e-publishing.af.mil/production/1/af_a1/publication/
dafi36-2907/dafi36-2907.pdf
4
https://static.e-publishing.af.mil/production/1/af_a1/publication/
dafi36-2406/dafi36-2406.pdf
App. 53
members ineligible for many career opportunities,
education programs or positions needed for
advancement. For example, PSDM 22-18 outlining an
upcoming Space Force selection board for leadership
positions states that basic eligibility criteria includes:
“3.1.2 No open UIF or referral OPR within the last five
years”.
37.
Having a referral report in my record would
cause me to be ineligible for boards such as this one
which have limited periods of eligibility (usually 2-3
years), causing my career to be permanently stifled.
38.
My next officer performance report closes out
on 31 May 2022, meaning any disciplinary action
received before then will likely drive a referral report
and be included in my permanent record at that time.
39.
Even if ultimately rescinded, a report such as
this would render me ineligible for competitive
positions or exercise opportunities I would ordinarily be
a great candidate for and stifle my career during the
lifetime of the adverse actions. The compounded effects
of stifled opportunities become extremely apparent
during promotion, developmental education and
leadership selection boards, where members with these
competitive opportunities on their resumes are ranked
above those without.
40.
During my work as an executive officer at the
21st Operations Group, I reviewed records and
prepared promotion recommendations for over 30
Captains eligible for promotion to Major. I also
reviewed and processed over 250 Officer Performance
Reports. I have seen records of members with referral
App. 54
reports who, despite subsequent good performance,
have this derogatory information in their records and
are thus ranked at or near the bottom when up for
promotion. I also prepared selection records for two
Colonels participating in leadership selection boards
and have insight into how members are competitively
ranked for such boards.
41.
I have been consistently ranked at the top of
my peers throughout my career. In Summer 2021, my
record, along with all other officers in my year group
and career field, was presented to a board consisting of
eleven senior Space Force officers and I was ranked in
the top 30%. I was selected as Company Grade Officer
of the Year for 2019 in my squadron and was ranked in
the top 10% of 195 Lieutenants in 2019 and 2020.
Disciplinary action such as what is described above
would instantly mar my very competitive record.
42.
In addition to the disciplinary action stated
above, my commander has counseled me that
administrative discharge proceedings would commence
commensurate with my failure to receive the COVID19 vaccine. As administrative discharge proceedings
can begin concurrent with disciplinary action, I may or
may not be entitled to a board of inquiry (BOI) and
formal hearing regarding my potential discharge. I am
considered to be a “probationary officer” until I finish
6 years of service, which I will have on 14 June 2022.
Probationary officers are not entitled to the BOI
process.
43.
My religious accommodation would not be rereviewed during this process nor would it provide a
legal defense. I received the Defendants’ final decision
App. 55
pertaining to my religious accommodation on 5 April
2022.
44.
Currently, I continue to serve in my position
as a Mission Director with few restrictions despite my
unvaccinated status. In alignment with current DoD
policies, I am not required to wear a mask, nor receive
weekly COVID testing at this time. I continue to work
my 12-hour shifts and have been able to continue my
job of running the day-to-day operations of a ground
station. Meetings are still primarily virtual.
45.
Receipt of disciplinary action, regardless of
whether it is eventually rescinded, will likely prompt
my leadership to remove me from my position, and
therefore harm my reputation within my unit and
within the Space Force. The Space Force is a very small
community, and positions, rankings and assignments
are heavily influenced by “who you know” and your
reputation. Irreversible damage to my reputation has
the potential to affect the remainder of my career,
regardless of the outcome of this case. I received my
current assignment through a recommendation of
someone I previously worked with who spoke highly of
me and propelled me to this selectively manned
assignment. This is not uncommon.
46.
My current position within the NRO is
considered non-deployable, meaning I am not subject to
deployment requirements unless I were to volunteer.
Having already deployed twice, I already have more
deployments than most Space Force officers at this
point in their careers. As most Space Force missions
are stateside, it is plausible that I could continue to
have a full career irrespective of whether I would
App. 56
ultimately be considered “non-deployable” due to not
receiving the COVID-19 vaccination.
47.
As opposed to the remainder of the military,
the Space Force has indicated they would be willing to
take “non-deployable” members. General Jay Raymond,
when speaking about a Lieutenant rendered nondeployable due to diabetes stated, “…we’d love to take
him. He’s a fighter. He’s a grappler. He’s smart. … He
will have a full career.”5
48.
Vaccination is an irrevocable decision, and I
do not take this decision lightly. I firmly believe that
receiving a vaccine produced with or tested on aborted
fetal cell lines is immoral because it promotes the
commercialization and utilization of aborted fetal cell
lines, while also tying these vaccinations back to the
original abortions which produced these cell lines.
Many vaccinations are produced and tested without
aborted fetal cell lines – in fact, all vaccinations I
received for my deployments (including Yellow Fever,
Typhoid, Anthrax and Polio vaccinations) did not
utilize aborted fetal cell lines in production or testing.
Since discerning my sincerely held religious beliefs on
the issue of the use of aborted fetal cell lines in the
manufacturing and testing of vaccinations in late 2016,
I have not been required by the military to receive an
immorally produced vaccine until now.
49.
I came to the decision to not receive the
COVID-19 vaccination following much prayer,
discernment and after listening to the advice of priests
5
https://www.spaceforce.mil/News/Article/2783508/raymonddescribes-space-force-achievements-plans-challenges-ahead/
App. 57
and study of church doctrine. My conscience is clear on
the fact that I cannot receive this vaccination without
violating my conscience. If a morally acceptable
vaccination becomes available, I am willing to take it.
50.
The Archbishop for Military Services,
Archbishop Timothy P. Broglio, stated on 12 October
2021: “The denial of religious accommodations, or
punitive or adverse personnel actions taken against
those who raise earnest, conscience-based objections,
would be contrary to federal law and morally
reprehensible.”
51.
In Evangelium Vitae, Saint John Paul II
stated that refusing to cooperate with an injustice “is a
human right. Were this not so, the human person
would be forced to perform an action intrinsically
incompatible with human dignity . . . Those who have
recourse to conscience objection must be protected not
only from legal penalties but also from any negative
effects on the legal disciplinary, financial and
professional plane.”
[signature page to follow]
I declare under penalty of perjury that the foregoing
is true and correct.
Executed on the 2nd day of May 2022.
/s/ Mariella Creaghan
Captain Mariella Creaghan
App. 58
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 1:22-cv-00981
Hon. Colleen Kollar-Kotelly
[Filed May 2, 2022]
__________________________________________
CAPTAIN MARIELLA CREAGHAN
)
Plaintiff,
)
)
v.
)
)
LLOYD J. AUSTIN III, FRANK KENDALL, )
LT. GEN. STEPHEN N. WHITING, and
)
LT. GEN. ROBERT I. MILLER,
)
Defendants.
)
_________________________________________ )
DECLARATION OF MARCUS WILLIAMS
I, Marcus Williams, make this supplemental
declaration pursuant to 28 U.S.C. § 1746 and based on
my personal knowledge:
1. My name is Marcus Williams. I am a Major in
the Unites States military currently serving as a Joint
Planner and I have personal knowledge and experience
of the effects administrative reprimands will have on a
military career. My experience includes five years as
supervisor or Flight Commander; in these positions I
was authorized to use administrative actions to
App. 59
improve and correct subordinates’ actions that
degraded the mission or themselves.
2. The effects of a Letter of Reprimand (LOR) will
cause immediate, irreparable damage to Captain
Mariella Creaghan’s military career.
3. A military career is built of hard work and
excellence, but is defined by reputation. A LOR
regardless of the reason will be apparent in her Record
of Performance and will tarnish her standing
irrespective of her demonstrated capability.
4. Another damaging aspect of a LOR is that Capt
Creaghan will be ineligible to compete for any
promotion, selective opportunities, or boarded
leadership positions while she has an Unfavorable
Information File (UIF). AFI 36-2907 states, the UIF is
an official record of unfavorable information about an
individual. It documents administrative, judicial, or
non-judicial censures concerning the member’s
performance, responsibility and behavior. LORs are
mandatory for file in the UIF for officer personnel.
5. The aggregated effects of this LOR will place her
behind her peers and is incongruent with her
documented record of sustained superior performance.
6. There is no administrative process that would
prevent an LOR from being entered into her file absent
injunctive relief from this Court.
I declare under penalty of perjury that the foregoing
is true and correct.
App. 60
Executed on the 2nd day of May 2022.
/s/ Marcus L. Williams Jr.
MARCUS L. WILLIAMS JR.
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.