Petition for Writ of Certiorari — Frank Kendall, Secretary of the Air Force, et al., Petitioners v. Hunter Doster, et al.

Supreme Court briefAug 16, 2023

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No.

In the Supreme Court of the United States

FRANK KENDALL III, SECRETARY OF THE AIR FORCE,

ET AL., PETITIONERS

HUNTER DOSTER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

BRIAN H. FLETCHER

Deputy Solicitor General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

CHARLES W. SCARBOROUGH

SARAH CARROLL

CASEN B. ROSS

DANIEL WINIK

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

In 2021, the Secretary of Defense ordered all military servicemembers to be vaccinated against COVID19. In the decision below, the Sixth Circuit affirmed orders preliminarily enjoining the Air Force from applying the COVID-19 vaccination requirement to individual plaintiffs who had unsuccessfully sought religious

exemptions, certifying a class, and granting a class-wide

preliminary injunction. The court of appeals entered

judgment on November 29, 2022. On December 23,

2022, Congress enacted legislation directing the Secretary of Defense to rescind the COVID-19 vaccination requirement, and he did so shortly thereafter. The question presented is as follows:

Whether, pursuant to United States v. Munsingwear,

Inc., 340 U.S. 36 (1950), this Court should vacate the

court of appeals’ judgment and remand with instructions to direct the district court to vacate its orders

granting preliminary injunctions as moot.

(I)

PARTIES TO THE PROCEEDING

Petitioners (defendants-appellants below) are Frank

Kendall III, in his official capacity as Secretary of the

Air Force; Robert I. Miller, in his official capacity as

Surgeon General of the Air Force; Marshall B. Webb,

in his official capacity as Commander, Air Education

and Training Command; Richard W. Scobee, in his official capacity as Commander, Air Force Reserve Command; James C. Slife, in his official capacity as Commander, Air Force Special Operations Command; and

the United States.

Respondents (plaintiffs-appellees below) are Hunter

Doster, Jason Anderson, McKenna Colantanio, Paul

Clement, Joe Dills, Benjamin Leiby, Brett Martin, Connor McCormick, Heidi Mosher, Peter Norris, Patrick

Pottinger, Alex Ramsperger, Benjamin Rinaldi, Douglas Ruyle, Christopher Schuldes, Edward Stapanon III,

Adam Theriault, and Daniel Reineke, on behalf of themselves and others similarly situated.

RELATED PROCEEDINGS

United States District Court (S.D. Ohio):

Doster v. Kendall, No. 22-cv-84 (Mar. 31, 2022)

Doster v. Kendall, No. 22-cv-84 (July 14, 2022)

Doster v. Kendall, No. 22-cv-84 (July 27, 2022)

Doster v. Kendall, No. 22-cv-84 (Aug. 19, 2022)

United States Court of Appeals (6th Cir.):

Doster v. Kendall, No. 22-3497 (Nov. 29, 2022)

Doster v. Kendall, No. 22-3702 (Nov. 29, 2022)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 2

Constitutional and statutory provisions involved ...................... 2

Statement:

A. Background ...................................................................... 2

B. The present controversy ................................................. 5

C. Subsequent developments .............................................. 9

Reasons for granting the petition ............................................. 12

A. These appeals are moot................................................. 13

B. The decision below would have warranted review ..... 20

C. Vacatur is appropriate under Munsingwear .............. 28

Conclusion ................................................................................... 31

Appendix A — Court of appeals opinion (Nov. 29, 2022)...... 1a

Appendix B — Court of appeals order (Sept. 9, 2022) ........ 80a

Appendix C — District court order denying emergency

motion stay for pending appeal and for

immediate administrative stay,

modifying class definition, and

modifying preliminary injunction

(Aug. 19, 2022) .......................................... 96a

Appendix D — District court order granting classwide preliminary injunction

(July 27, 2022) .......................................... 106a

Appendix E — District court order regarding pending

motions (Docs. 21, 35, 52, 53, 54)

(July 14, 2022) .......................................... 111a

Appendix F — District court order granting in part and

denying in part plaintiffs’ motion for

preliminary injunction (Doc. 13) and

issuing a preliminary injunction

(Mar. 31, 2022) ......................................... 135a

(III)

Table of Contents—Continued

Page

Appendix G — Court of appeals order

(Apr. 17, 2023) ........................................... 179a

Appendix H — Constitutional and statutory

provisions ................................................. 184a

Appendix I — Secretary of Defense memorandum

(Jan. 10, 2023) .......................................... 186a

Appendix J — Secretary of the Air Force memorandum

(Jan. 23, 2023) ............................................ 190a

TABLE OF AUTHORITIES

Cases:

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) .......13, 14, 19

Alvarez v. Smith, 558 U.S. 87 (2009) ............................. 29, 30

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ......................................................... 13, 18

Austin v. U.S. Navy SEALs 1-26,

142 S. Ct. 1301 (2022) ..........................................6, 12, 21, 24

Azar v. Garza, 138 S. Ct. 1790 (2018) .................................. 29

Camreta v. Greene, 563 U.S. 692 (2011) .............................. 20

Department of the Navy v. Egan,

484 U.S. 518 (1988).............................................................. 22

Diffenderfer v. Central Baptist Church of Miami,

Fla., Inc., 404 U.S. 412 (1972) ............................................ 29

Dunn v. Austin:

No. 22-15286, 2023 WL 2319316

(9th Cir. Feb. 27, 2023) ........................................ 12, 17

142 S. Ct. 1707 (2022) ...................................................... 21

Gilligan v. Morgan, 413 U.S. 1 (1973) ......................22, 24, 27

Goldman v. Weinberger, 475 U.S. 503 (1986) ............... 22, 23

Hirschfeld v. ATF, 14 F.4th 322 (4th Cir. 2021),

cert. denied, 142 S. Ct. 1447 (2022) ................................... 18

Holt v. Hobbs, 574 U.S. 352 (2015) ......................................... 7

Cases—Continued:

Page

Lane v. Williams, 455 U.S. 624 (1982) ................................ 18

Mayorkas v. Innovation Law Lab,

141 S. Ct. 2842 (2021) ................................................... 13, 30

Munaf v. Geren, 553 U.S. 674 (2008) ................................... 21

Navy Seal 1 v. Austin, No. 22-5114,

2023 WL 2482927 (D.C. Cir. Mar. 10, 2023),

petition for cert. pending, No. 22-1201

(filed June 8, 2023) ........................................................ 12, 17

Orloff v. Willoughby, 345 U.S. 83 (1953) ....................... 22, 26

Robert v. Austin, 72 F.4th 1160 (10th Cir. 2023) ................ 17

Roth v. Austin, 62 F.4th 1114 (8th Cir. 2023) ..........12, 17, 18

Short v. Berger, No. 22-15755,

2023 WL 2258384 (9th Cir. Feb. 24, 2023).................. 12, 17

Tandon v. Newsom, 141 S. Ct. 1294 (2021) ......................... 22

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

513 U.S. 18 (1994) ......................................................... 28, 29

U.S. Navy SEALs 1-26 v. Biden,

72 F.4th 666 (5th Cir. 2023) ......................................... 16, 17

United States Dep’t of the Treasury v. Galioto,

477 U.S. 556 (1986).............................................................. 14

United States v. Microsoft Corp.,

138 S. Ct. 1186 (2018) ..............................................14, 19, 29

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) ........................................ 13, 20, 28, 30, 31

United States v. Sanchez-Gomez,

138 S. Ct. 1532 (2018) ..............................................13, 19, 20

United States Dep’t of Justice v. Provenzano,

469 U.S. 14 (1984) ....................................................14, 19, 29

Vital Pharm., Inc. v. Alfieri,

23 F.4th 1282 (11th Cir. 2022) ........................................... 18

Winter v. NRDC, Inc., 555 U.S. 7 (2008) ............................ 21

Yellen v. United States House of Representatives,

142 S. Ct. 332 (2021) ........................................................... 29

Case—Continued:

Page

Ziglar v. Abbasi, 582 U.S. 120 (2017) .................................. 22

Constitution and statutes:

U.S. Const.:

Art. III, § 2, Cl. 1 ............................................................. 13

Amend. I (Free Exercise Clause) ......... 5, 22, 23, 30, 184a

James M. Inhofe National Defense Authorization

Act for Fiscal Year 2023, Pub. L. No. 117-263,

136 Stat. 2395 ........................................................................ 9

§ 525, 136 Stat. 2571-2572 ......................................... 10, 15

Religious Freedom Restoration Act of 1993,

42 U.S.C. 2000bb et seq. ....................................................... 5

42 U.S.C. 2000bb-1(b) .................................. 5, 24, 25, 184a

42 U.S.C. 2000bb-1(c) ............................................ 21, 184a

42 U.S.C. 2000bb-2(3)...................................................... 25

Miscellaneous:

Air Force, DAF COVID-19 Statistics – July 2022,

(Aug. 10, 2022), perma.cc/79L7-TNBQ............................... 4

Dep’t of the Air Force, Instruction 10-250: Individual Medical Readiness (July 22, 2020),

perma.cc/9UBB-P558 ........................................................... 5

Def. Cas. Analysis Sys., Dep’t of Def.,

Active Duty Military Deaths by Year

and Manner, 1980-2021 (May 2022),

perma.cc/4AFX-QTKZ ..................................................... 4

Dep’t of the Air Force, Instruction 52-201:

Religious Freedom in the Department

of the Air Force (June 23, 2021), perma.cc/

5RDU-UVGV ........................................................................ 4

H.R. Rep. No. 88, 103d Cong., 1st Sess. (1993) .................. 23

VII

Miscellaneous—Continued:

Page

Stanley M. Lemon et al., Protecting Our Forces:

Improving Vaccine Acquisition and

Availability in the U.S. Military (2002) ............................ 2

Connor O’Brien, Politico, Defense bill rolls

back Pentagon’s Covid vaccine mandate

(Dec. 6, 2022), perma.cc/YQ26-DYAL .............................. 10

S. Rep. No. 111, 103d Cong., 1st Sess. (1993) ..................... 23

Stephen M. Shapiro et al.,

Supreme Court Practice (11th ed. 2019) .......................... 21

Sabrina Singh, Deputy Pentagon Press Sec’y,

Dep’t of Def., Press Briefing Tr. (Dec. 7, 2022),

perma.cc/EXQ2-FNBN ..................................................... 10

16AA Charles Alan Wright et al.,

Federal Practice and Procedure (5th ed. 2020) .............. 17

In the Supreme Court of the United States

No.

FRANK KENDALL III, SECRETARY OF THE AIR FORCE,

ET AL., PETITIONERS

HUNTER DOSTER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Secretary of

the Air Force, et al., respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a79a) is reported at 54 F.4th 398. An earlier order by a

motions panel (App., infra, 80a-95a) is reported at 48

F.4th 608. The order of the court of appeals denying

rehearing and opinions respecting that order (App., infra, 179a-183a) are reported at 65 F.4th 792. The orders

of the district court granting a preliminary injunction to

individual plaintiffs (App., infra, 135a-178a) and denying a motion to dismiss are reported at 596 F. Supp. 3d

995 and 615 F. Supp. 3d 741, respectively. The orders

(1)

of the district court certifying a class (App., infra, 111a134a), granting a preliminary injunction to the class

(App., infra, 106a-110a), and denying a stay pending appeal (App., infra, 96a-105a) are not published in the

Federal Supplement but are available at 342 F.R.D.

117, 2022 WL 2974733, and 2022 WL 3576245, respectively.

JURISDICTION

The judgment of the court of appeals was entered on

November 29, 2022. A petition for rehearing was denied

on April 17, 2023 (App., infra, 179a-183a). On July 7,

2023, Justice Kavanaugh extended the time within

which to file a petition for a writ of certiorari to and including August 16, 2023. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Pertinent constitutional and statutory provisions are

set forth in the appendix to this petition. App., infra,

184a-185a.

STATEMENT

A. Background

The U.S. military has relied on mandatory immunization since 1777, when George Washington directed

that the Continental Army be inoculated against smallpox. Stanley M. Lemon et al., Protecting Our Forces:

Improving Vaccine Acquisition and Availability in the

U.S. Military 11-12 (2002). As of 2021, nine vaccines

were required for all servicemembers, including an annual flu vaccine, and eight other vaccines were required

in some circumstances based on risk of exposure. See

D. Ct. Doc. 27-6, at 36 (Mar. 9, 2022).

In August 2021, after the Food and Drug Administration approved the first COVID-19 vaccine, the Secretary of Defense announced that vaccination against

COVID-19 would be added to the required list. App.,

infra, 5a. The Secretary of the Air Force implemented

that directive by requiring active-duty servicemembers

to be vaccinated by November 2, 2021, and members of

the Air Force Reserve to be vaccinated by December 2,

2021, unless otherwise exempted. Id. at 5a, 140a.

The Air Force permitted servicemembers to request

exemptions from the vaccination requirement for administrative, medical, or religious reasons. App., infra,

6a. Administrative exemptions were generally available

only to servicemembers who were scheduled to retire or

separate from service in a specified timeframe, or who

were on “terminal leave” pending retirement or separation. Ibid. (citation omitted). Medical exemptions were

available when Air Force medical providers determined

that vaccination was not medically appropriate. Ibid.

All such exemptions were time-limited, varying in

length from 30 days to one year. D. Ct. Doc. 27-12, at 4

(Mar. 9, 2022). If the medical condition justifying an exemption continued to exist after that time, Air Force

policy permitted medical providers to grant a new

exemption—again subject to reevaluation within no

more than a year. See ibid.

Religious exemptions were governed by the Air

Force’s preexisting policies for considering requests for

religious accommodations. App., infra, 6a. As relevant

here, a servicemember seeking a religious exemption

was required to do so in writing and to consult with a

chaplain and medical personnel. Id. at 7a-8a. Each officer in the chain of command made a recommendation

about whether to grant the request, as did a team of

specialists convened to determine the effect the requested accommodation would have on the military, including any impact on “military readiness, unit cohesion, good order, discipline, public health, safety, and

other military requirements.” Dep’t of the Air Force

(DAF), Instruction 52-201: Religious Freedom in the

Department of the Air Force ¶ 2.13 (June 23, 2021),

perma.cc/5RDU-UVGV; see App., infra, 6a-10a. The

decision to grant a request lay in the first instance with

a “commander at a Major or Field Command,” subject

to appeal to the Surgeon General of the Air Force.

App., infra, 7a. Unlike medical exemptions, religious

exemptions were not time-limited. Id. at 40a.

In July 2022, the Air Force reported that, of a total

force of approximately 500,000, 624 servicemembers

had a medical exemption from the COVID-19 vaccination requirement. Air Force, DAF COVID-19 Statistics

– July 2022 (Aug. 10, 2022) (COVID-19 Statistics),

perma.cc/79L7-TNBQ. At that time, the Air Force had

received about 10,000 requests for religious exemptions

and had granted 135 of them, with thousands of requests still pending. Ibid. COVID-19 had resulted in

the deaths of 16 servicemembers—more than the number of servicemembers from all military branches killed

in action in 2021—and had caused many more airmen to

be hospitalized. Ibid.; see Def. Cas. Analysis Sys., Dep’t

of Def., Active Duty Military Deaths by Year and Manner, 1980-2021 (May 2022), perma.cc/4AFX-QTKZ.1

The Air Force’s website also reported that, as of July 2022, 817

servicemembers had an administrative exemption, but that figure

included more than 600 members of the Air National Guard who

were classified as “Missing” for various reasons, including because

they had already retired. See COVID-19 Statistics, supra; D. Ct.

Doc. 83-4, at 3 (Aug. 15, 2022).

Regardless of their exemption status, the Air Force

generally considered all servicemembers who were unvaccinated against COVID-19 not medically ready and

therefore ineligible for deployment. See DAF, Instruction 10-250: Individual Medical Readiness ¶ 2.1.3 (July

22, 2020), perma.cc/9UBB-P558 (listing compliance with

all vaccination requirements among the “[i]ndividual

medical readiness requirements” (emphasis omitted)).

B. The Present Controversy

1. In February 2022, 18 servicemembers in the Air

Force or its reserve component whose religious exemption requests had been denied (or not yet acted on)

brought this suit in the U.S. District Court for the

Southern District of Ohio on behalf of themselves and

others similarly situated, asserting claims under the

First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. See

App., infra, 143a-150a. The gravamen of the complaint

was that the Air Force’s process for considering religious exemption requests was a “sham” in which nearly

all requests were denied, and that the Air Force had

discriminated against religion by granting medical and

administrative exemptions more freely than religious

exemptions. Id. at 12a.

2. In March 2022, the district court granted in part

and denied in part the individual plaintiffs’ motion for a

preliminary injunction. App., infra, 135a-178a. The

court found that the plaintiffs’ RFRA and First Amendment claims were likely to succeed. Id. at 159a-170a.

Under RFRA, the government may not substantially

burden a person’s exercise of religion unless it demonstrates that the application of the burden to the person

is “the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. 2000bb-1(b).

Here, the court stated that the government’s asserted

interest in “military readiness” was not sufficiently specific to the individual plaintiffs, and in any event “ring[s]

hollow” because the Air Force had granted administrative and medical exemptions to other servicemembers.

App., infra, 162a-163a. The court also concluded that

the other preliminary-injunction factors favored the individual plaintiffs, observing that their “religious-based

refusal to take a COVID-19 vaccine simply isn’t going

to halt a nearly fully vaccinated Air Force’s mission to

provide a ready national defense.” Id. at 172a (citation

omitted); see id. at 170a-172a.

The district court ordered the government not to

take “any disciplinary or separation measures” against

the individual plaintiffs based on “their refusal to get

vaccinated for COVID-19 due to their sincerely held religious beliefs.” App., infra, 177a. The court also

stated, however, that its injunction would “not affect the

Air Force’s ability to make operational decisions, including deployability decisions,” id. at 174a, and that

the preliminary injunction was therefore consistent

with this Court’s then-recent order in Austin v. U.S.

Navy SEALs 1-26, 142 S. Ct. 1301 (2022).2

The government appealed. In July 2022, while that

appeal was pending, the district court certified a class

In Navy SEALs, a district court had preliminarily enjoined the

Navy from enforcing the Secretary of Defense’s COVID-19 vaccination requirement with respect to a group of Navy SEALs and other

members of the Naval Special Warfare community. See Gov’t Stay

Appl. at 10-12, Navy SEALs, supra (No. 21A477). This Court

granted the government’s emergency application for a partial stay

of that injunction insofar as the injunction had “preclude[d] the

Navy from considering [the plaintiffs’] vaccination status in making

deployment, assignment, and other operational decisions.” Navy

SEALs, 142 S. Ct. at 1301.

comprising all Air Force servicemembers whose requests for religious exemptions had been denied (or not

yet acted upon) by the date of class certification and

whose asserted religious objections had been found to

be sincere by an Air Force chaplain. App., infra, 111a134a. The government had argued that the plaintiffs’

claims were not amenable to class-wide resolution “due

to the individualized analysis required under RFRA.”

Id. at 118a; see Holt v. Hobbs, 574 U.S. 352, 363 (2015)

(explaining that RFRA “requires the Government to

demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the

person’—the particular claimant whose sincere exercise

of religion is being substantially burdened”) (citation

omitted). The court rejected that argument. The court

understood the plaintiffs to be alleging that the Air

Force had adopted a “policy and practice of discrimination by denying substantially all religious accommodation requests,” and the court stated that whether such

a policy exists (and its lawfulness) would be a common

question for all class members. App., infra, 119a.

In an order issued several days later, the district

court modified the class definition and granted a classwide preliminary injunction. App., infra, 106a-110a.

The court’s four-page order did not discuss the equitable factors governing such relief. The court instead

stated that it was “extend[ing]” the preliminary injunction to the entire class of approximately 10,000 servicemembers “for the reasons discussed” in the court’s

prior order granting an injunction to the individual

plaintiffs. Id. at 106a-107a.

The government appealed the district court’s further

orders and sought a stay of the class-wide preliminary

injunction pending appeal. The court declined to grant

a stay but further modified the class definition and the

class-wide injunction. App., infra, 96a-105a.

3. The court of appeals also declined to grant a stay

pending appeal, but set the government’s second appeal

on an expedited schedule. App., infra, 80a-95a. The

court ultimately upheld both preliminary injunctions in

a single decision. Id. at 1a-79a.

With respect to the individual plaintiffs, the court of

appeals found that their RFRA claims were likely to

succeed. App., infra, 13a-47a. The government had argued that the vaccination requirement serves the compelling interests of ensuring military readiness and the

health of the Nation’s Air Force. Id. at 35a. The court

deemed those asserted interests too “general” for

RFRA purposes and stated that the government would

need to “identify the duties of each” plaintiff and explain

why that particular plaintiff must be vaccinated. Id. at

36a. When the plaintiffs had moved for a preliminary

injunction, the government had submitted “detailed

declarations and record materials” describing its compelling interests in vaccinating the five plaintiffs who

had by then exhausted the Air Force’s administrative

process for seeking religious accommodations. Id. at

37a (citation omitted). The court acknowledged those

materials but declined to consider them because, in the

court’s view, the government had not made the relevant

showing in its appellate briefing. Id. at 38a. The court

also concluded that the government’s asserted interests

in military readiness and servicemember health were

undercut by the medical and administrative exemptions

the Air Force had granted. Id. at 38a-42a.

With respect to the class, the court of appeals held

that the district court “did not abuse its discretion by

finding that common questions existed” to warrant class

certification. App., infra, 59a. Specifically, the court of

appeals identified the questions common to the class as

whether the Air Force had “followed a ‘de facto policy’

of rejecting religious exemptions based on its generalized health and readiness interests,” and whether the

Air Force had “followed a ‘discriminatory policy’ of

treating religious exemptions less favorably than other

exemptions.” Id. at 60a (citation omitted).

Both of those questions concerned the Air Force’s internal administrative processes for considering requests for religious exemptions. The government had

argued that neither alleged policy existed but that, in

any event, such policies would be irrelevant if the government could show in litigation that the Air Force had

a compelling interest in requiring a particular plaintiff

to be vaccinated and that no less restrictive means

would satisfy that interest. 22-3702 Gov’t C.A. Br. 3, 2230. The government had further argued that class certification would impede the government from making

(and the court from considering) such plaintiff-specific

showings. See ibid. The court of appeals rejected those

arguments, holding that RFRA does not permit the government to rely on “after-the-fact explanations” in

court. App., infra, 68a (citation omitted).

The court of appeals also perceived no abuse of discretion in the district court’s decision to grant a preliminary injunction to a class of approximately 10,000 servicemembers, stating that the “analysis * * * largely

overlaps” with the preliminary injunction for the 18

named plaintiffs. App., infra, 75a; see id. at 75a-79a.

C. Subsequent Developments

1. The court of appeals entered judgment on November 29, 2022. App., infra, 1a. A few weeks later,

Congress enacted the James M. Inhofe National De-

fense Authorization Act for Fiscal Year 2023 (NDAA),

Pub. L. No. 117-263, 136 Stat. 2395, which the President

signed into law on December 23, 2022. Section 525 of

the NDAA directed the Secretary of Defense to rescind,

within 30 days, the “mandate that members of the

Armed Forces be vaccinated against COVID-19.” § 525,

136 Stat. 2571-2572.

Although the Secretary of Defense had opposed the

enactment of Section 525 of the NDAA, he promptly

complied with Congress’s direction.3 On January 10,

2023, the Secretary rescinded the COVID-19 vaccination requirement he had imposed in August 2021. App.,

infra, 186a-189a. The Secretary’s memorandum rescinding the requirement also provided that “[n]o individuals currently serving in the Armed Forces shall be

separated solely on the basis of their refusal to receive

the COVID-19 vaccination if they sought an accommodation on religious, administrative, or medical grounds,”

and that “[t]he Military Departments will update the

records of such individuals to remove any adverse actions solely associated with denials of such requests, including letters of reprimand.” Id. at 187a.

On January 23, 2023, the Secretary of the Air Force

rescinded prior guidance implementing the COVID-19

vaccination requirement for the Air Force. App., infra,

190a-191a. In doing so, the Secretary reiterated that no

current servicemembers would be “separated solely on

See, e.g., Sabrina Singh, Deputy Pentagon Press Sec’y, Dep’t of

Def., Press Briefing Tr. (Dec. 7, 2022), perma.cc/EXQ2-FNBN

(stating that the Secretary of Defense “support[ed] continuing the

vaccine mandate in the NDAA”); Connor O’Brien, Politico, Defense

bill rolls back Pentagon’s Covid vaccine mandate (Dec. 6, 2022),

perma.cc/YQ26-DYAL (quoting a government spokesperson’s

statement that “Secretary Austin has been very clear that he opposes the repeal of the vaccine policy”).

the basis of their refusal to receive the COVID-19 vaccination if they sought an accommodation on religious,

administrative, or medical grounds.” Id. at 190a. The

Secretary also confirmed that “[t]he Department of the

Air Force [would] update the records” of individuals

who had sought religious or other accommodations “to

remove any adverse actions solely associated with denials of such requests, including letters of reprimand.”

Id. at 190a-191a.

2. In light of those developments, the government

filed a petition for rehearing, for the limited purpose of

requesting that the court of appeals vacate its prior

judgment and vacate the preliminary injunctions as

moot. See Gov’t C.A. Reh’g Pet. 1-2.

The court of appeals denied rehearing. App., infra,

179a-183a. In an unsigned order, the court stated that

“the district court should review this mootness question

in the first instance.” Id. at 180a. The court also stated

that it had alternatively concluded that “even if the preliminary injunctions were now moot, that fact would not

provide a basis for the ‘extraordinary remedy of vacatur’ of the panel’s opinion.” Id. at 180a-181a (citation

omitted).

Judge Kethledge, joined by Judges Thapar, Bush,

and Murphy, concurred in the denial of rehearing en

banc and wrote separately to state that vacatur was inappropriate because “the putative mootness here arose

from the government’s own actions.” App., infra, 181a;

see id. at 180a.

Judge Moore, joined by Judges Clay and Stranch,

dissented from the denial of rehearing en banc. App.,

infra, 182a; see id. at 180a. The dissenting judges observed that “[t]welve federal appellate judges on three

courts of appeals have unanimously concluded that the

NDAA and the military’s implementation of that legislation mooted similar preliminary-injunction appeals.”

Id. at 182a (citing Roth v. Austin, 62 F.4th 1114, 1119

(8th Cir. 2023); Navy Seal 1 v. Austin, No. 22-5114, 2023

WL 2482927, at *1 (D.C. Cir. Mar. 10, 2023) (per curiam), petition for cert. pending, No. 22-1201 (filed June

8, 2023); Dunn v. Austin, No. 22-15286, 2023 WL

2319316, at *1 (9th Cir. Feb. 27, 2023); and Short v. Berger, No. 22-15755, 2023 WL 2258384, at *1 (9th Cir. Feb.

24, 2023)). The dissenting judges found those decisions

persuasive and would have granted rehearing en banc

to vacate the panel opinion and “hold that Congress’s

action mooted the pending appeals of the district court’s

preliminary-injunction orders.” Ibid.

The court of appeals issued its mandate on April 25,

2023, one week after denying rehearing. 22-3702 C.A.

Doc. 85.

REASONS FOR GRANTING THE PETITION

The court of appeals wrongly upheld preliminary injunctions barring the Air Force from enforcing the military’s COVID-19 vaccination requirement. Both preliminary injunctions countermanded the considered

judgments of the Nation’s professional military leaders

that vaccination against COVID-19 was essential to

maintaining military readiness and troop health during

the pandemic. Given the exceptional significance of the

issues, the decision below would have warranted this

Court’s further review had the challenged vaccination

requirement remained in effect. Indeed, the Court had

previously granted the government’s motion for a partial stay of an injunction in parallel RFRA litigation involving the same vaccination requirement. See Austin

v. U.S. Navy SEALs 1-26, 142 S. Ct. 1301 (2022).

Before the government could obtain further review

in this case, however, Congress directed the Secretary

of Defense to rescind the military’s COVID-19 vaccination requirement, and he did so. Those developments

rendered the government’s appeals of the preliminary

injunctions moot. Consistent with this Court’s ordinary

practice under such circumstances, the Court should

grant the petition for a writ of certiorari, vacate the

judgment below, and remand with instructions to direct

the district court to dismiss its orders granting the preliminary injunctions as moot. See United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950); see also, e.g.,

Mayorkas v. Innovation Law Lab, 141 S. Ct. 2842, 2842

(2021).

A. These Appeals Are Moot

The preliminary injunctions issued by the district

court, and the government’s appeals from those injunctions, became moot after the Secretary of Defense carried out Congress’s directive to rescind the vaccination

requirement that was the subject of both injunctions.

1. Under Article III, the jurisdiction of the federal

courts is limited to the resolution of actual “Cases” or

“Controversies.” U.S. Const. Art. III, § 2, Cl. 1. “To

qualify as a case fit for federal-court adjudication, ‘an

actual controversy must be extant at all stages of review.’ ” Arizonans for Official English v. Arizona, 520

U.S. 43, 67 (1997) (citation omitted). “A case that becomes moot at any point during the proceedings is ‘no

longer a “Case” or “Controversy” for purposes of Article III,’ and is outside the jurisdiction of the federal

courts.” United States v. Sanchez-Gomez, 138 S. Ct.

1532, 1537 (2018) (quoting Already, LLC v. Nike, Inc.,

568 U.S. 85, 91 (2013)).

A case or appeal becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Already, 568 U.S.

at 91 (citation omitted). “No matter how vehemently

the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the

dispute ‘is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.’ ”

Ibid. (citation omitted).

Mootness may result during litigation when a controversy is overtaken by new legislation that “significantly

alters the posture of th[e] case.” United States Dep’t of

the Treasury v. Galioto, 477 U.S. 556, 559 (1986). In

United States v. Microsoft Corp., 138 S. Ct. 1186 (2018)

(per curiam), for example, the Court granted certiorari

to address the circumstances under which “a U.S. provider of e-mail services must disclose to the Government electronic communications within its control” that

are stored abroad, id. at 1187. While the case was pending, Congress enacted new legislation addressing the

same issue, and the government applied for and obtained a warrant under the new law. Id. at 1187-1188.

The Court held that, as a result of those developments,

“[n]o live dispute remain[ed] between the parties over

the issue with respect to which certiorari was granted,”

and the case “ha[d] become moot.” Id. at 1188; see, e.g.,

United States Dep’t of Justice v. Provenzano, 469 U.S.

14, 15 (1984) (per curiam) (holding that “new legislation

* * * plainly render[ed] moot” the question presented);

Galioto, 477 U.S. at 559 (similar).

2. The NDAA and its implementation caused these

preliminary-injunction appeals to become moot. The injunctions had forbidden the government from “taking

any disciplinary or separation measures against [re-

spondents] * * * for their refusal to get vaccinated for

COVID-19 due to their sincerely held religious beliefs.”

App., infra, 177a (individual-plaintiff injunction); see id.

at 102a-103a (class-wide injunction). But any live controversy between the parties about whether respondents may be ordered to be vaccinated or disciplined for

failure to comply with that order has now ended.

Section 525 of the NDAA provided that, “[n]ot later

than 30 days after the * * * enactment” of the NDAA,

“the Secretary of Defense shall rescind the mandate that

members of the Armed Forces be vaccinated against

COVID-19.” § 525, 136 Stat. 2571-2572. Although the

Secretary had opposed including any such provision in

the NDAA, he complied with Congress’s directive by

formally “rescind[ing] the mandate that members of the

Armed Forces be vaccinated against COVID-19.” App.,

infra, 187a.

The Secretary of Defense also ordered that current

servicemembers may not be separated from the service

“solely on the basis of their refusal to receive the

COVID-19 vaccination if they sought an accommodation

on religious * * * grounds,” as all the named plaintiffs

and members of the class did. App., infra, 187a; cf. id.

at 101a-102a (defining the class to include only servicemembers who had already “submitted a religious accommodation request to the Air Force”). The Secretary

further directed that the military records of any such

individuals be updated “to remove any adverse actions

solely associated with” the denial of their requests for

religious exemptions, “including letters of reprimand.”

Id. at 187a. And the Secretary of the Air Force issued

an analogous memorandum to implement those policies

for the Air Force. See id. at 190a-191a.

As a result, no live controversy exists between the

parties about the issues raised in the government’s two

appeals. Upholding the preliminary injunctions would

do nothing to benefit respondents because they are no

longer subject to the rescinded COVID-19 vaccination

requirement and face no prospect of being disciplined

for failure to comply with it, now or in the past.

Numerous courts have, accordingly, “concluded that

the NDAA and the military’s implementation of that

legislation mooted similar preliminary-injunction appeals.” App., infra, 182a (Moore, J., dissenting from the

denial of rehearing en banc). Judge Moore observed

that “[t]welve federal appellate judges on three courts

of appeals” had reached such a conclusion. Ibid. That

number has only grown. In total, seven different panels

of six courts of appeals have now recognized that the

NDAA and its implementation mooted similar appeals

from the grant or denial of preliminary injunctions concerning the now-rescinded COVID-19 vaccination requirement for servicemembers.

For example, the Fifth Circuit concluded that those

developments mooted the government’s pending appeals in the Navy SEALs case in which this Court previously entered a partial stay. See U.S. Navy SEALs

1-26 v. Biden, 72 F.4th 666, 669 (2023); see also p. 6 &

n.1, supra. The district court in that case, like the district court here, had granted preliminary injunctions to

individual plaintiffs and to a certified class, and the

NDAA was enacted during the appellate proceedings

about those injunctions. See Navy SEALs, 72 F.4th at

670-671. The Fifth Circuit recognized that the Navy,

“[o]beying a newly enacted federal statute,” had rescinded the policies that were the subject of the preliminary injunctions, thus “moot[ing] the appeal[s].” Id. at

671-672. The court explained that “the preliminary injunctions no longer provide * * * ‘any effectual relief,’ ”

as “[t]here is no need to enjoin policies that no longer

exist.” Id. at 672 (citation omitted).

Every other court of appeals to consider the issue

has reached the same conclusion. See Robert v. Austin,

72 F.4th 1160, 1165 (10th Cir. 2023) (“Congress’s revocation of [the military’s] vaccine mandate, and [the] implementation of Congress’s instruction, means there is

no more vaccine mandate to enjoin. The claim [for injunctive relief ] is therefore moot.”); Roth v. Austin, 62

F.4th 1114, 1119 (8th Cir. 2023) (“The rescission of the

COVID-19 vaccination mandate, as directed by the

[NDAA], provides the Airmen all of their requested

preliminary injunctive relief and renders this appeal

moot.”); Navy Seal 1 v. Austin, No. 22-5114, 2023 WL

2482927, at *1 (D.C. Cir. Mar. 10, 2023) (per curiam)

(dismissing appeals as moot in light of the implementation of the NDAA), petition for cert. pending, No. 221201 (filed June 8, 2023); Dunn v. Austin, No. 22-15286,

2023 WL 2319316, at *1 (9th Cir. Feb. 27, 2023) (same);

Short v. Berger, No. 22-15755, 2023 WL 2258384, at *1

(9th Cir. Feb. 24, 2023) (same); Judgment, Alvarado v.

Austin, No. 23-1419 (4th Cir. Aug. 3, 2023) (same).

3. In denying the government’s petition for rehearing, the Sixth Circuit stated that “the district court

should review this mootness question in the first instance.” App., infra, 180a. But the court did not explain

how it could proceed to issue its mandate without first

assuring itself of its jurisdiction to do so. Until the issuance of the mandate, the case “remain[ed] within the

jurisdiction of the court of appeals,” 16AA Charles Alan

Wright et al., Federal Practice and Procedure § 3987,

at 701 (5th ed. 2020), and the court was thus obligated

to confirm that “an actual controversy” remained “extant.” Arizonans for Official English, 520 U.S. at 67

(citation omitted); see, e.g., Vital Pharm., Inc. v. Alfieri,

23 F.4th 1282, 1288 (11th Cir. 2022) (“[ W ]e must

ensure—up until the moment our mandate issues—that

intervening events have not mooted the appeal.”);

Hirschfeld v. ATF, 14 F.4th 322, 325-326 (4th Cir. 2021)

(similar), cert. denied, 142 S. Ct. 1447 (2022).

The court of appeals did not elaborate on the issues it

believed the district court should examine, but respondents had opposed the government’s suggestion of mootness on three grounds, arguing that (1) the appeals were

not moot because some plaintiffs allegedly face “collateral consequences” from their prior non-compliance;

(2) the exception to mootness for voluntary cessation

applies; and (3) the dispute was capable of repetition

while evading review. Pls.’ C.A. Resp. to Pet. for Reh’g

En Banc 7-15. Those theories lack merit.

a. In some circumstances, a federal court may adjudicate an appeal that would otherwise be moot if a decision in a party’s favor would alter the “collateral legal

consequences” the party faces—the classic example being a criminal defendant who seeks to continue to appeal

a conviction even after completing his sentence. Lane

v. Williams, 455 U.S. 624, 632 (1982) (citation omitted).

But respondents identify nothing like that here. Both

the Secretary of Defense and the Secretary of the Air

Force have made clear that servicemembers who

sought religious exemptions will not face any future discipline for not complying with the COVID-19 vaccination requirement when it still existed, and that service

records will be corrected to remove any prior discipline,

including letters of reprimand. See App., infra, 186a189a, 190a-191a; cf. Roth, 62 F.4th at 1119 (discussing

those developments and observing that “no adverse action may be taken against the Airmen for refusing to

receive the COVID-19 vaccine”). The Deputy Secretary

of Defense has also issued guidance making clear that

the Air Force’s prior “limitations on deployability”

based on lack of COVID-19 vaccination are “no longer

in effect as of January 10, 2023.” D. Ct. Doc. 111-1, at 2

(May 2, 2023).

b. The voluntary-cessation exception to mootness

also does not apply here. Under that doctrine, a party

“claiming that its voluntary compliance moots a case

bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not

reasonably be expected to recur.” Already, 568 U.S. at

91 (citation omitted). Here, however, the Air Force did

not voluntarily cease to require servicemembers to be

vaccinated against COVID-19. Congress instead compelled the Secretary of Defense to rescind the military’s

COVID-19 vaccination requirement over the Secretary’s opposition. See p. 10 & n.2, supra. To say that

the mootness “arose from the government’s own actions,” App., infra, 181a (Kethledge, J., concurring in

the denial of rehearing en banc), is to ignore that distinction. In prior cases addressing mootness, this Court

has never suggested that new Acts of Congress should

be attributed to the Executive Branch as a litigant, and

doing so would be inconsistent with the separation of

powers between the branches of the federal government. Cf. Microsoft, 138 S. Ct. at 1187-1188; Provenzano, 469 U.S. at 15.

c. These preliminary-injunction appeals also do not

implicate any “controversy that is capable of repetition,

yet evading review.” Sanchez-Gomez, 138 S. Ct. at 1540

(citation omitted). “A dispute qualifies for that excep-

tion only ‘if (1) the challenged action is in its duration

too short to be fully litigated prior to its cessation or

expiration, and (2) there is a reasonable expectation

that the same complaining party will be subjected to the

same action again.’” Ibid. (citation omitted). Neither

requirement is satisfied here. Although the Secretary

of Defense continues to adhere to the view that vaccination “enhances operational readiness and protects” the

Nation’s armed forces, App., infra, 187a, no reasonable

prospect exists at this time that respondents will be

subject to the same COVID-19 vaccination requirement

again in the foreseeable future—let alone that they will

continue to have religious objections to vaccination or

will be denied religious accommodations. Cf. id. at 45a

(noting the development of vaccines that some plaintiffs

do not object to receiving). And in any event, respondents have failed to show that any future controversy

about mandatory COVID-19 vaccination in the military

would be too short in duration to be fully litigated to a

conclusion at that time.

B. The Decision Below Would Have Warranted Review

Vacatur of a lower court’s decision because of intervening mootness is generally available only to “those

who have been prevented from obtaining the review to

which they are entitled.” Camreta v. Greene, 563 U.S.

692, 712 (2011) (quoting Munsingwear, 340 U.S. at 39).

It has therefore been the longstanding position of the

United States that when a case becomes moot after the

court of appeals issues its mandate but before this

Court acts on a petition for a writ of certiorari, Munsingwear vacatur is appropriate only if the question

presented would have merited this Court’s review had

the case not become moot. See, e.g., Pet. at 16-17, Yellen

v. United States House of Representatives, 142 S. Ct.

332 (2021) (No. 20-1738); see also Stephen M. Shapiro et

al., Supreme Court Practice § 19.4, at 19-28 to 19-29 &

n.34 (11th ed. 2019).

That standard is amply satisfied here. The Sixth Circuit upheld preliminary injunctions that overrode the

“professional military judgments” of the Nation’s senior military commanders about quintessentially military matters affecting thousands of servicemembers.

Navy SEALs 1-26, 142 S. Ct. at 1302 (Kavanaugh, J.,

concurring) (citation omitted). Even in the absence of a

square circuit conflict, this Court has often granted

certiorari to review lower-court decisions interfering

with important military policies. See, e.g., Winter v.

NRDC, Inc., 555 U.S. 7 (2008); Munaf v. Geren, 553

U.S. 674 (2008). And here, this Court had already

granted a partial stay of an injunction against the

COVID-19 vaccination requirement and had denied an

airman’s application for an injunction pending appeal

after the lower courts in his case declined to grant that

relief. See Navy SEALs, 142 S. Ct. at 1301; Dunn v.

Austin, 142 S. Ct. 1707 (2022).

This Court’s review also would have been warranted

because the court of appeals’ decision was seriously

flawed. With respect to both the merits of respondents’

RFRA claims and the scope of any “appropriate relief ”

for those claims, 42 U.S.C. 2000bb-1(c), the decision below departed from this Court’s longstanding approach

to reviewing claims by servicemembers challenging the

strictures under which our Nation’s military necessarily

operates.4

The court of appeals upheld the preliminary injunctions “based

solely on [respondents’] RFRA claims” and declined to address respondents’ “free-exercise claims.” App., infra, 13a. Because the

challenged policies would have satisfied the test prescribed by

1. This Court has recognized that “judges are not

given the task of running the” military, and it is the Executive officials charged with protecting our national security and defending our borders—not courts—who

have authority to determine matters of military readiness. Orloff v. Willoughby, 345 U.S. 83, 93 (1953). Federal courts are therefore “traditionally * * * reluctant

to intrude upon the authority of the Executive in military and national security affairs.” Department of the

Navy v. Egan, 484 U.S. 518, 530 (1988). Indeed, the

Court has emphasized that “[ j]udicial inquiry into the

national-security realm raises ‘concerns for the separation of powers in trenching on matters committed to the

other branches.’ ” Ziglar v. Abbasi, 582 U.S. 120, 142

(2017) (citation omitted). “It is this power of oversight

and control of military force by elected representatives

and officials which underlies our entire constitutional

system.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

The Court has adhered to those principles in disputes involving servicemembers and “the guarantees of

the First Amendment.” Goldman v. Weinberger, 475

U.S. 503, 507 (1986). In Goldman, for example, the

Court upheld the Air Force’s refusal to grant any exemption from its uniform requirements for an orthodox

Jewish officer who sought to wear a yarmulke indoors

while on duty at a medical clinic. See id. at 504-505. The

Court explained that the military is “ ‘a specialized society separate from civilian society,’ ” that the military

must be able to “ ‘insist upon a respect for duty and a

discipline without counterpart in civilian life,’ ” and that

RFRA, they also necessarily would have complied with the most

stringent standard that could have applied under the Free Exercise

Clause of the First Amendment. See Tandon v. Newsom, 141 S. Ct.

1294, 1296 (2021) (per curiam).

the “essence of military service ‘is the subordination of

the desires and interests of the individual to the needs

of the service.’ ” Id. at 506-507 (citations omitted). The

Court further explained that “[t]hese aspects of military

life” do not render the First Amendment “nugatory,”

but they do counsel in favor of “far more deferential”

judicial review than would apply in other contexts. Id.

at 507. In particular, the Court stated that, “when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must

give great deference to the professional judgment of

military authorities concerning the relative importance

of a particular military interest.” Ibid.

Congress emphasized similar principles when it later

enacted RFRA. The Senate Report on RFRA observed

that “[t]he courts have always recognized the compelling nature of the military’s interest” in “good order,

discipline, and security” and have “always extended to

military authorities significant deference in effectuating these interests.” S. Rep. No. 111, 103d Cong., 1st

Sess. 12 (1993). The Senate Report also made clear that

legislators “intend[ed] and expect[ed] that such deference w[ould] continue under” RFRA. Ibid. The House

Report articulated the same expectation. See H.R. Rep.

No. 88, 103d Cong., 1st Sess. 8 (1993).

2. The preliminary injunctions upheld below cannot

be reconciled with those principles. Indeed, the court

of appeals took the position that RFRA “prohibits” adhering to this Court’s pre-RFRA decisions affording

significant deference to military decisionmakers in challenges to military regulations. App., infra, 34a. The

court of appeals was of course correct that RFRA requires courts considering claims in the military context

to apply the same compelling-interest standard that

governs in other contexts. See 42 U.S.C. 2000bb-1(b).

But nothing in RFRA suggests that, in applying that

standard, courts should abandon their deeply rooted

practice of affording substantial deference to “professional military judgments.” Navy SEALs, 142 S. Ct. at

1302 (Kavanaugh, J., concurring) (quoting Gilligan, 413

U.S. at 10).

The lower courts’ erroneous failure to afford any

meaningful deference to the judgments of the Nation’s

military commanders infected their treatment of both

preliminary injunctions. When the individual plaintiffs

first sought an injunction, the government submitted

detailed declarations from military officials explaining

why the government had a compelling interest in vaccinating the five plaintiffs whose claims were fully exhausted (and therefore ripe). See D. Ct. Docs. 27-19 to

27-24 (Mar. 9, 2022). The declarations also explained

why the government had no less restrictive means of

furthering its compelling interests. In the judgment of

the Air Force, vaccination against COVID-19 was the

single “most effective way of * * * preventing service

members from becoming ill and dying,” D. Ct. Doc. 2717, at 3 (Mar. 9, 2022), and proffered alternatives like

masking, testing, or social distancing “would not be as

effective and would hinder the Air Force mission,” id.

at 5; see id. at 7-20.

The district court did not acknowledge or discuss

that evidence—even while faulting the government for

allegedly failing to make the plaintiff-specific showing

that RFRA requires. App., infra, 163a. The Sixth Circuit likewise failed to give the evidence any meaningful

consideration, much less the deference warranted under this Court’s precedent. With respect to the “detailed declarations and record materials” that the dis-

trict court had overlooked, id. at 37a (citation omitted),

the court of appeals stated that the “Air Force [had]

failed to engage in the properly focused inquiry where

it belonged—in its briefing,” by which the court apparently meant the government’s appellate briefing. Id. at

38a. The court also stated that the declarations improperly relied on “after-the-fact ‘rationalizations’ made for

this suit,” ibid. (citation omitted), but the court did not

identify any legal basis for prohibiting the government

from making the showing that RFRA requires in the litigation that RFRA authorizes.

At the same time, the court of appeals affirmed the

certification of a class that all but guaranteed that the

Air Force would have no real opportunity to address (or

the court to consider) each RFRA claimant. In the

court’s view, class certification was nonetheless appropriate because the district court could instead address

on a class-wide basis whether the Air Force had a “ ‘de

facto policy’ ” of denying substantially all religious accommodation requests based on “generalized” interests

insufficiently tailored to each class member. App., infra, 60a (citation omitted).

In each respect, the court of appeals appeared to

wrongly conceive of this RFRA litigation as a form of

judicial review of the Air Force’s administrative process

for responding to religious-accommodation requests.

As the text of RFRA confirms, however, the relevant

question is whether the government “demonstrates” in

court, through the presentation of evidence to a factfinder, that application of a burden to the RFRA plaintiff is in furtherance of a compelling governmental interest and is the least restrictive means of furthering

that interest. 42 U.S.C. 2000bb-1(b); see 42 U.S.C.

2000bb-2(3) (defining “demonstrates” to mean “meets

the burdens of going forward with the evidence and of

persuasion”). RFRA does not create any entitlement to

an administrative process for seeking religious accommodations, nor does it authorize federal courts to sit in

review of any such process. And doing so was particularly inappropriate in the military context.

The court of appeals also endorsed the district

court’s flawed comparison between the number of medical and religious exemptions granted by the Air Force,

stating that both types of exemptions could be viewed

as temporary “in an identical way” because vaccines

could be developed in the future as to which respondents might have no religious objections. App., infra, 41a

(emphasis omitted). The court did not explain why

RFRA obligated military commanders to engage in

such speculation. And even crediting the possibility

that some religious objections might have been only

temporary, the comparison would still have been inapt.

Requiring individuals with medical contraindications to

a COVID-19 vaccine to nonetheless take the vaccine

would have been antithetical to one of the compelling

interests the Air Force was seeking to further: maintaining the “health of its troops.” Id. at 35a (citation

omitted). The same cannot be said for servicemembers

with religious objections.

The court of appeals further erred in disregarding

the Air Force’s expert military judgments about least

restrictive means. The court stated that the Air Force

had “an obvious alternative” to vaccination, in the form

of “reassign[ing] any Plaintiff who works in too close of

contact with others.” App., infra, 44a. But this Court’s

precedents make clear that federal courts have no warrant to instruct the military to reassign thousands of

servicemembers. In Orloff, this Court identified “no

case where this Court ha[d] assumed to revise duty orders as to one lawfully in the service,” 345 U.S. at 94,

but that is just what the court here would have effectively required the Air Force to do. Such a judgment

intrudes directly on “[t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force”; as the Court has

emphasized, “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Gilligan, 413 U.S. at 10.

3. At a minimum, further review would have been

warranted with respect to the scope of any preliminary

injunctive relief for the certified class. The district

court did not engage in any meaningful analysis of the

preliminary-injunction factors for the class. The court

instead treated its prior analysis of the equities of

granting a preliminary injunction for the 18 named

plaintiffs as having already resolved the equities of

granting a preliminary injunction covering approximately 10,000 servicemembers. See p. 7, supra. But

the class-wide injunction was significantly more harmful to the government and the public.

Lieutenant General Kevin B. Schneider, a three-star

Air Force general, explained below that Air Force commanders had concluded that unvaccinated servicemembers could not “deploy without risking the overall success of the mission.” D. Ct. Doc. 73-1, at 17 (July 21,

2022). He further explained that having a large number

of unvaccinated servicemembers “would weaken readiness and diminish the true strength of the Force[,] * * *

pos[ing] an unacceptable risk to mission accomplishment and to the health of the Force.” Ibid. Accordingly, in his view the class-wide preliminary injunction

“cause[d] severe harm to the operational readiness of

the” Air Force, degrading its “lethality and force capabilities” by requiring it to retain thousands of individuals whom the Air Force considered “ineligible to deploy” but who continued to occupy billets indefinitely

during litigation. D. Ct. Doc. 83-1, at 12 (Aug. 15, 2022).

The district court never addressed Lieutenant General Schneider’s declarations, and it failed to explain

how the balance of the equities could favor a class-wide

injunction given his testimony. The court of appeals

also did not address Lieutenant General Schneider’s

declarations, instead agreeing with the district court

that the analysis “largely overlaps” for the individualplaintiff and class-wide preliminary injunctions. App.,

infra, 75a. The court of appeals further stated that the

preliminary injunction permitted the Air Force to take

into account the class members’ vaccination status in

making “operational decisions,” id. at 78a (citation omitted), without acknowledging the views of the Nation’s

military commanders that creating a class of 10,000 undeployable servicemembers was itself a threat to the

Air Force’s operational effectiveness and end strength.

The court had no sound basis for disregarding those

professional military judgments.

C. Vacatur Is Appropriate Under Munsingwear

When a case that would otherwise merit this Court’s

review becomes moot “while on its way [to this Court]

or pending [a] decision on the merits,” the Court’s “established practice” is to “vacate the judgment below and

remand with a direction to dismiss.” Munsingwear, 340

U.S. at 39. That practice ensures that no party is “prejudiced by a [lower-court] decision” and “prevent[s] a

judgment, unreviewable because of mootness, from

spawning any legal consequences.” Id. at 40-41; see

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513

U.S. 18, 21 (1994) (“If a judgment has become moot

while awaiting review, this Court may not consider its

merits, but may make such disposition of the whole case

as justice may require.”) (brackets and citation omitted). The Court should follow that usual practice and

vacate the Sixth Circuit’s decision in this case.

As this Court has repeatedly observed, the determination whether to vacate the judgment when a case becomes moot while pending review ultimately “is an equitable one,” U.S. Bancorp, 513 U.S. at 29, requiring the

disposition that would be “most consonant to justice” in

light of the circumstances, id. at 24 (citation omitted).

See Azar v. Garza, 138 S. Ct. 1790, 1792 (2018) (per curiam) (observing that because Munsingwear vacatur “is

rooted in equity, the decision whether to vacate turns

on ‘the conditions and circumstances of the particular

case’ ”) (citation omitted).

This Court has previously indicated that vacatur

pursuant to Munsingwear is appropriate when a case

becomes moot because a challenged law is repealed, see

Diffenderfer v. Central Baptist Church of Miami, Fla.,

Inc., 404 U.S. 412, 414-415 (1972) (per curiam), or substantially amended, see Microsoft, 138 S. Ct. at 1188;

Provenzano, 469 U.S. at 15. And in Alvarez v. Smith,

558 U.S. 87 (2009), the Court followed its “ordinary

practice” and vacated the judgment below where the

State petitioner had mooted the case by returning disputed property, explaining that the State had not taken

that action out of a “desire to avoid review.” Id. at 97.

Recent cases likewise reflect the principle that Munsingwear vacatur is appropriate when challenges to federal policies are mooted by Executive actions, undertaken in good faith and for reasons unrelated to litigation. See, e.g., Yellen v. United States House of Repre-

sentatives, 142 S. Ct. 332, 332 (2021) (challenge to certain border-wall expenditures moot after Executive

Branch ceased the expenditures); Mayorkas, 141 S. Ct.

at 2842 (challenge to certain immigration practices

moot after Executive Branch terminated the practices).

The equities here favor vacatur. This case became

moot because Congress, in the NDAA, required the

Secretary of Defense to rescind the vaccination requirement that was the subject of the district court’s preliminary injunctions. The Secretary thus rescinded the

challenged vaccination requirement not out of a “desire

to avoid review,” Alvarez, 558 U.S. at 97, but because

Congress overrode his objections and required him to

do so. And leaving the decision below unreviewed

threatens real practical harm to the government and

the public. The court of appeals issued a precedential

opinion at odds with decades of precedent concerning

the deference that courts owe to the military’s operational judgments when servicemembers invoke the

First Amendment to challenge military policies. Cf.

Munsingwear, 340 U.S. at 41 (explaining that vacatur is

“commonly utilized * * * to prevent a judgment, unreviewable because of mootness, from spawning any legal

consequences”). The Court should follow its ordinary

practice and vacate the court of appeals’ decision given

the breadth of the class-wide injunction and the seriousness of the judicial intrusion into military affairs.

CONCLUSION

The Court should grant the petition for a writ of certiorari, vacate the judgment of the court of appeals, and

remand with instructions to direct the district court to

vacate its orders granting preliminary injunctions as

moot under United States v. Munsingwear, Inc., 340

U.S. 36 (1950).

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

BRIAN H. FLETCHER

Deputy Solicitor General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

CHARLES W. SCARBOROUGH

SARAH CARROLL

CASEN B. ROSS

DANIEL WINIK

Attorneys

AUGUST 2023

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion

(Nov. 29, 2022) ......................................... 1a

Appendix B — Court of appeals order

(Sept. 9, 2022) ........................................ 80a

Appendix C — District court order denying emergency

motion for stay pending appeal and

for immediate administrative stay,

modifying class definition, and

modifying preliminary injunction

(Aug. 19, 2022) ........................................... 96a

Appendix D — District court order granting class-wide

preliminary injunction

(July 27, 2022) ...................................... 106a

Appendix E — District court order regarding pending

motions (Docs. 21, 35, 52, 53, 54)

(July 14, 2022) ...................................... 111a

Appendix F — District court order granting in part and

denying in part plaintiffs’ motion for

preliminary injunction (Doc. 13)

and issuing a preliminary injunction

(Mar. 31, 2022) ..................................... 135a

Appendix G — Court of appeals order

(Apr. 17, 2022) ......................................... 179a

Appendix H — Constitutional and statutory

provisions ............................................. 184a

Appendix I — Secretary of Defense memorandum

(Jan. 10, 2023)................................... 186a

Appendix J — Secretary of the Air Force

memorandum (Jan. 23, 2023) ............. 190a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 22-3497/3702

HUNTER DOSTER; JASON ANDERSON;

MCKENNA COLANTANIO; PAUL CLEMENT; JOE DILLS;

BENJAMIN LEIBY; BRETT MARTIN; CONNOR

MCCORMICK; HEIDI MOSHER; PETER NORRIS; PATRICK

POTTINGER; ALEX RAMSPERGER; BENJAMIN RINALDI;

DOUGLAS RUYLE; CHRISTOPHER SCHULDES; EDWARD

STAPANON, III; ADAM THERIAULT; DANIEL REINEKE,

ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY

SITUATED, PLAINTIFFS-APPELLEES

HON. FRANK KENDALL, IN HIS OFFICIAL CAPACITY

AS SECRETARY OF THE AIR FORCE; LT. GENERAL

ROBERT I. MILLER, IN HIS OFFICIAL CAPACITY AS

SURGEON GENERAL OF THE AIR FORCE; LT. GENERAL

MARSHALL B. WEBB, IN HIS OFFICIAL CAPACITY AS

COMMANDER, AIR EDUCATION AND TRAINING

COMMAND; LT. GENERAL RICHARD W. SCOBEE, IN HIS

OFFICIAL CAPACITY AS COMMANDER, AIR FORCE

RESERVE COMMAND; LT. GENERAL JAMES C. SLIFE,

IN HIS OFFICIAL CAPACITY AS COMMANDER,

AIR FORCE SPECIAL OPERATIONS COMMAND;

UNITED STATES OF AMERICA,

DEFENDANTS-APPELLANTS

Argued: Oct. 19, 2022

Decided and Filed: Nov. 29, 2022

(1a)

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:22-cv-00084—Matthew W. McFarland,

District Judge.

OPINION

Before:

Judges.

KETHLEDGE, BUSH, and MURPHY, Circuit

MURPHY, Circuit Judge. The Department of the

Air Force has ordered all of its over 500,000 service

members to get vaccinated against COVID-19. Some

10,000 members with a wide array of duties have requested religious exemptions from this mandate. The

Air Force has granted only about 135 of these requests

and only to those already planning to leave the service.

Yet it has granted thousands of other exemptions for

medical reasons (such as a pregnancy or allergy) or administrative reasons (such as a looming retirement).

The 18 Plaintiffs who filed this suit allege that the vaccine mandate substantially burdens their religious exercise in violation of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA).

Finding that these claims would likely succeed, the district court granted a preliminary injunction that barred

the Air Force from disciplining the Plaintiffs for failing

to take a vaccine. But its injunction did not interfere

with the Air Force’s operational decisions over the

Plaintiffs’ duties. The court then certified a class of

thousands of similar service members and extended this

injunction to the class.

The Air Force appeals the individual and class injunctions. Its briefs across the two appeals work at

cross-purposes. In its challenge to the class-action

certification, the Air Force (correctly) states that RFRA

adopts an individual-by-individual approach: the Air

Force must show that it has a compelling interest in requiring a “specific” service member to get vaccinated

based on that person’s specific duties and working conditions. Gonzales v. O Centro Espírita Beneficente

União do Vegetal, 546 U.S. 418, 431 (2006). In its challenge to the Plaintiffs’ injunction, however, the Air

Force fails to identify the specific duties or working conditions of a single Plaintiff. It instead seeks to satisfy

RFRA with the “general interests” underlying its vaccine mandate. Id. at 438. We are thus asked to deny

that common questions exist for purposes of certifying

a class but to accept that common answers exist for purposes of rejecting all 18 Plaintiffs’ claims on their merits.

We decline this inconsistent invitation.

Under

RFRA, the Air Force wrongly relied on its “broadly formulated” reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has

granted secular exemptions to their colleagues. Id. at

431. We thus may uphold the Plaintiffs’ injunction

based on RFRA alone. The Air Force’s treatment of

their exemption requests also reveals common questions

for the class: Does the Air Force have a uniform policy

of relying on its generalized interests in the vaccine

mandate to deny religious exemptions regardless of a

service member’s individual circumstances? And does

it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones?

A district court can answer these questions in a “yes” or

“no” fashion for the entire class.

It can answer

whether these alleged policies violate RFRA and the

First Amendment in the same way. A ruling for the

class also would permit uniform injunctive relief against

the allegedly illegal policies. We affirm.

The Air Force lists its mission as: “Fly, fight, and

win—airpower anytime, anywhere.” R.34-2, PageID

2236. It seeks to ensure that the United States can

maintain “air superiority” for all offensive operations

overseas and defensive operations at home. R.34-3,

PageID 2247. It also conducts aerial missions worldwide to gather intelligence, transfer personnel and

cargo, and strike targets. Id. The Air Force completes its critical duties through a structure that consists primarily of nine Major Commands and three Field

Commands. R.34-2, PageID 2236. The Commands

include over 3,000 squadrons that perform varied functions, ranging from fighter and bomber squadrons to

medical and maintenance squadrons.

Id., PageID

2235-36. To fill its squadrons, the Air Force relies on

501,000 service members spread across those on active

duty (about 326,000), in the reserves (about 68,000), and

in the Air National Guard (about 107,000). R.34-3,

PageID 2248.

The “roles” of these individuals “differ vastly.”

R.34-2, PageID 2235. The duties of the Plaintiffs exemplify this diversity. Some perform tasks readily associated with the Air Force. Lieutenant Colonel Edward Stapanon trains fighter pilots; Major Daniel Reineke trains pilots for remotely piloted aircraft. R.45,

PageID 3078-79; R.42-5, PageID 2964. Others plan for

the future. Second Lieutenant Hunter Doster recently

graduated from the Air Force Institute of Technology

and develops new technology at the Air Force Research

Lab. R.48, PageID 3211-15. Still others undertake

the service functions required for a global air operation.

Airman First Class McKenna Colantonio maintains fuel

systems. R.42-1, PageID 2776. Senior Airman Joseph Dills helps passengers on and off planes. R.48,

PageID 3254, 3270-71. While the Plaintiffs serve in

varied roles, they all share an objection rooted in their

faiths to taking any currently available COVID-19 vaccine.

The military has long imposed vaccine mandates.

R.27-4, PageID 1564. Before the COVID-19 pandemic,

the Department of Defense required personnel to take

some vaccines upon entering the service (including for

the flu and polio) and others upon taking specific duty

assignments (including for anthrax and yellow fever).

Id.; R.27-6, PageID 1624.

After the FDA approved the first COVID-19 vaccine

for regular use in August 2021, the Secretary of Defense

added that vaccine to the list of required vaccinations.

R.27-3, PageID 1561.

The Secretary ordered all

Armed Forces to receive an FDA-approved vaccine, but

he also permitted them to satisfy this mandate by taking

other vaccines approved for emergency use by the FDA

or the World Health Organization. Id. The Secretary

of the Air Force, Frank Kendall, directed active-duty

members to get vaccinated by November 2 and reservists by December 2. R.27-7, PageID 1632. Within

months, 97% of those on active duty and 92% of those in

the reserves had willingly done so. R.27-17, PageID

1970.

Recognizing that some might object to the vaccine,

Secretary Kendall permitted medical, administrative,

and religious exemptions. R.27-7, PageID 1646, 1649.

He also paused the mandate for those seeking exemptions while the Air Force processed their requests.

R.27-8, PageID 1656.

Service members may seek medical exemptions for

health reasons like a vaccine allergy. R.27-7, PageID

1646; R.27-12, PageID 1922-23.

Pregnant service

members may also obtain this exemption despite CDC

guidance that they may safely get vaccinated. R.27-7,

PageID 1645. To obtain exemptions, service members

must notify their unit commanders and visit military

medical providers. Id., PageID 1654. A provider decides whether to grant an exemption. Id. During any

period of exemption, a unit commander may alter a service member’s duties. Id., PageID 1647.

Service members may seek administrative exemptions if they are near retirement. Secretary Kendall

initially limited this exemption to those on “terminal

leave.” Id., PageID 1649. These members stop working at the start of leave and retire at its end. R.27-16,

PageID 1954. He later expanded the exemption to

cover all personnel who planned to retire in five months,

even those who planned to remain on active duty during

this time. R.27-8, PageID 1656. Unit commanders

decide whether to approve these exemptions. R.27-16,

PageID 1954.

Service members may lastly seek religious exemptions. R.27-7, PageID 1649. Secretary Kendall relied

on existing guidance from a Department of the Air

Force Instruction (DAFI 52-201) for this exemption.

Id. The guidance notes that the Air Force has a com-

pelling interest in “mission accomplishment,” including

in “military readiness, unit cohesion, good order and discipline, and health and safety for both the member and

the unit.” DAFI 52-201, § 2.1, at 2 (June 23, 2021).

Rather than give unit commanders discretion to decide

whether these interests trump exemption requests, the

guidance centralizes the process. A commander at a

Major or Field Command makes the decision, and the

Surgeon General of the Air Force resolves all appeals.

R.27-7, PageID 1652-53.

The Air Force follows an 11-step religious-exemption

process. Id., PageID 1651-53. At step one, service

members must submit a written request that describes

why a COVID-19 vaccine burdens their religion. Id.,

PageID 1651. Most Plaintiffs have objected to the

available COVID-19 vaccines because of their ties to

aborted fetal tissue during development or testing.

Lieutenant Doster, for example, listed this concern

when explaining why these vaccines would violate his religious beliefs “as a Born-Again Christian.” R.11-4,

PageID 331, 334. But not all requesters have raised

this religious objection. Lieutenant Colonel Jason Anderson wrote that his Buddhist faith prohibited him

from presently taking a vaccine. R.11-6, PageID 39296.

At steps two and three, service members receive

counseling. They must meet with their unit commanders to discuss how the failure to get vaccinated might

limit their ability to deploy and alter their duty assignments. R.27-7, PageID 1651. And they must meet with

medical providers to discuss the risks from COVID-19

and information about vaccines. Id.

At step four, military chaplains conduct in-depth interviews to evaluate, and opine on, the sincerity of a service member’s beliefs based on such factors as the member’s demeanor and past conduct. Id.; DAFI 52-201, at

29. A chaplain, for example, recommended granting

Doster an exemption because of “overwhelming” evidence that his objection was sincere, including his statements that he had led a “men’s group in worship and

study” at the Air Force Academy and that his wife works

“at a pro-life, non-profit organization.” R.11-4, PageID

339.

At step five, a “Religious Resolution Team” (made up

of a lower-level commander, chaplain, public affairs officer, staff judge advocate, and medical provider) recommends whether to grant or deny an exemption. R.277, PageID 1651. Teams have reached differing results.

The team that reviewed Doster’s request recommended

a denial (over a dissent) in a short statement. R.42-3,

PageID 2839. It agreed that Doster’s beliefs were sincere but noted that, as set forth in DAFI 52-201, it considered “whether a compelling governmental interest[]

exists and whether the [vaccine mandate] uses the least

restrictive means necessary to achieve” it. Id. The

team did not expressly identify any compelling interest

or alternative means. In contrast, the team that reviewed the request of Major Andrea Corvi, a class member, voted to approve it (over two dissents) because

she could continue in her duty assignment as an

information-operations officer while unvaccinated.

R.53-1, PageID 3769-70.

At step six, a staff judge advocate offers legal analysis. R.27-7, PageID 1651. The Air Force has largely

redacted the parts of these opinions that do more than

describe background law. E.g., R.42-1, PageID 278992. But Major Corvi obtained an unredacted opinion.

There, a judge advocate recommended granting her an

exemption. R.53-1, PageID 3774-77. He reasoned,

among other things, that the exemption would minimally affect military readiness because of her duties as

an information-operations officer. Id., PageID 3775.

He noted that it also would not affect “unit cohesion” because of the “extremely low likelihood” that her unit

would ever deploy. Id., PageID 3776. He added that

service members “compose a healthier and younger demographic” and so face a greater risk of dying in a car

accident than from COVID-19. Id.

At step seven, each officer in a service member’s

chain of command recommends approval or disapproval.

R.27-7, PageID 1652. Officers have performed this review with varying degrees of diligence. Some consider a

service member’s duties. Airman Colantonio’s squadron commander recommended granting her an exemption because her work as a fuel-systems technician required her to wear gear that protected against COVID19. R.42-1, PageID 2776. Others state in a conclusory fashion: “A compelling government interest exists to vaccinate all Airmen against COVID-19,” and

there are no “less restrictive means available to achieve

that compelling interest.” R.42-4, PageID 2934.

At step eight, the commander of the relevant Major

or Field Command must decide on the exemption and

identify the reasons for all denials. R.27-7, PageID

1652.

Despite thousands of requests, commanders

have denied exemptions with limited individual-specific

analysis. One commander appears to deny requests

(including those of Airman Colantonio and Staff Ser-

10a

geant Adam Theriault) with a standard-form memo that

merely changes whether he “approve[s]” or “disapprove[s]” the exemption. R.42-1, PageID 2780; R.11,

PageID 563. These denial memos summarily state

that a “compelling governmental interest in mission accomplishment (military readiness, unit cohesion, good

order and discipline, and health and safety for both the

member and the unit) exists.” R.42-1, PageID 2780.

Although another commander issued lengthier memos,

their substance did not change significantly across denials.

See R.11-4, PageID 344-45 (Doster); R.38-3,

PageID 2635-36 (Stapanon); R.42-5, PageID 2980-81

(Reineke).

At steps nine and ten, the Air Force completes procedural tasks. It places a copy of the decision in a service member’s file, provides notice of the decision, and

informs the service member of the right to appeal the

denial. R.27-7, PageID 1652.

At step eleven, the Surgeon General of the Air Force,

Lieutenant General Robert Miller, decides any appeal.

R.27-7, PageID 1653. His standard denial memo contains a paragraph’s worth of analysis following the same

format. E.g., R.11-7, PageID 417 (Colantonio); R.19-1,

PageID 944 (Doster); R.42-2, PageID 2817 (Dills); R.425, PageID 2999 (Reineke); R.60-1, PageID 4359

(Stapanon). It first states that “preventing the spread

of disease among the force is vital to mission accomplishment.” R.19-1, PageID 944. It next spends a sentence or two on a service member’s individual “circumstances,” typically highlighting that the service member

interacts with others. Id. It then notes that the service member may someday need to deploy “on short notice[.]” Id.

11a

After a denial, commanders order service members

to get vaccinated in five days. R.11-21, PageID 569.

Some warn that a refusal could result in a wide array of

punishments: “Failure to comply with this lawful order may result in administrative and/or punitive action

for Failing to Obey an Order under Article 92, Uniform

Code of Military Justice.” R.19-1, PageID 946. But

Secretary Kendall listed “administrative discharge” as

the standard (mandatory) sanction. R. 27-8, PageID

1656. By July 2022, the Air Force had “administratively separated” 834 members.

DAF COVID-19

Statistics—July 2022, https://perma.cc/J3GG-B59M.

As of that month, 9,754 service members had requested religious exemptions. Id. The Air Force had

granted only 135 requests. Id. Even this number

overstates things. It actually granted the “religious”

exemptions only to those who qualified (or nearly qualified) for an “administrative” exemption because they

would soon retire. See R.30-2, PageID 2084-85, 2088,

R.46-1, PageID 3121-23. At argument, the Air Force

agreed that it has granted zero religious exemptions to

anyone who does not plan to leave the service within a

year. Arg., No. 22-3497, at 51:33-52:07.

The Air Force, by comparison, has provided no statistics on the total number of medical or administrative

exemptions that personnel have requested or that it has

granted since the inception of the vaccine mandate. In

December 2021, there were a total of 2,047 service members currently with medical exemptions and 2,247 service members currently with administrative exemptions.

See DAF COVID-19 Statistics—December

2021, https://perma.cc/C6ZZ-BGB4. The total number

of members with these exemptions in any given month

12a

appears to have steadily declined since then.

COVID-19 Statistics—July 2022.

See DAF

In February 2022, the 18 Plaintiffs, some on active

duty and others in the reserves, sued Secretary Kendall,

Surgeon General Miller, and the commanders of three

Major Commands. R.1, PageID 3-6. Asserting RFRA

and First Amendment claims, they alleged that the exemption process is a sham because the Air Force followed a discriminatory policy that denied nearly all religious exemptions but broadly granted medical and administrative exemptions. Id., PageID 13.

The district court issued four decisions that matter

now. The court granted the Plaintiffs a preliminary injunction on the ground that the Air Force’s blanket denial of religious exemptions likely violated RFRA and

the Free Exercise Clause.

Doster v. Kendall, __

F. Supp. 3d __, 2022 WL 982299, at *11-15 (S.D. Ohio

Mar. 31, 2022). This injunction barred the Air Force

from disciplining the Plaintiffs for failing to take

COVID-19 vaccines. Id. at *17. But it did not interfere with the Air Force’s “operational decisions” about

the Plaintiffs’ duties or deployability. Id.

The district court next certified a class of members

of the Air Force. See Doster v. Kendall, 342 F.R.D.

117, 121 (S.D. Ohio 2022). It defined the class to include those whom a military chaplain has found to have

sincerely held religious beliefs that are substantially

burdened by the vaccine mandate. See Doster v. Kendall, 2022 WL 3576245, at *3 (S.D. Ohio Aug. 19, 2022).

The district court subsequently extended its preliminary injunction to the class. See Doster v. Kendall,

2022 WL 2974733, at *1-2 (S.D. Ohio July 27, 2022). It

13a

then denied a stay of this class-wide injunction pending

appeal. See Doster, 2022 WL 3576245, at *1.

The Air Force appealed both the district court’s individual injunction and the court’s class injunction. It

immediately sought a stay of the latter from us. We

denied the stay but consolidated and expedited these

two appeals. Doster v. Kendall, 48 F.4th 608, 617 (6th

Cir. 2022).

II.

Injunction for the Named Plaintiffs

We start with the injunction awarded to the Plaintiffs. Courts ask four questions when deciding whether to grant a preliminary injunction: Will the plaintiffs

likely succeed on their claims? Will they suffer an irreparable injury without relief? Which side does the balance of the equities favor? And where does the public

interest lie? See Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 20 (2008). The Air Force raises three arguments under this framework. It asserts that the Plaintiffs’ claims will likely fail because the claims are not judicially reviewable. It asserts that the claims will

likely fail because they do not satisfy the governing

standards under RFRA and the Free Exercise Clause.

And it asserts that the remaining factors tilt in its favor.

We can reject all three arguments based solely on the

Plaintiffs’ RFRA claims, which alone justified the injunction. Under traditional principles of constitutional

avoidance, then, we need not address the Plaintiffs’ freeexercise claims. See Nw. Austin Mun. Util. Dist. No.

One v. Holder, 557 U.S. 193, 205 (2009); Ashwander v.

Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis,

J., concurring).

14a

Justiciability of the RFRA Claims

According to the Air Force, two hurdles to our review

—an abstention doctrine tailored to the military and the

general ripeness doctrine—bar the Plaintiffs’ RFRA

claims. Yet the Plaintiffs have satisfied their burden at

this stage by showing that we likely can review these

claims. See Waskul v. Washtenaw Cnty. Cmty. Mental

Health, 900 F.3d 250, 256 n.4 (6th Cir. 2018).

Abstention

The Air Force asks us to decline to hear these RFRA

claims under an abstention test that the Fifth Circuit

created in Mindes v. Seaman, 453 F.2d 197 (5th Cir.

1971), to govern claims by service members against the

military. See Harkness v. Sec’y of Navy, 858 F.3d 437,

444-45 (6th Cir. 2017). This test has two parts, each

with its own subparts. To obtain review, a service

member must allege that the military violated the law

and that the service member has exhausted any internal

military processes to obtain relief. Mindes, 453 F.2d

at 201. The service member next must show that a

court should resolve the claim despite the “policy reasons” against judicial review of military decisions. Id.

This part requires a court to consider a claim’s strength,

the harm from denying review, the degree of military

interference, and the extent to which a court must second guess “military expertise or discretion[.]” Id. at

201-02. The Air Force argues that we may expand

Mindes’s test “in common-law fashion” to cover any potential claim against the military. Island Creek Coal

Co. v. Bryan, 937 F.3d 738, 746 (6th Cir. 2019).

a. The Air Force “overstates” our abstention power,

so we must clarify the circumstances in which a court

may decline to hear a properly filed case. Id. Courts

15a

start with the presumption of a “virtually unflagging”

duty to resolve all cases that fall within their jurisdiction. New Orleans Pub. Serv., Inc. v. Council of City

of New Orleans, 491 U.S. 350, 359 (1989) (citation omitted). As Chief Justice Marshall said long ago, a court

would commit “treason to the constitution” if it refused

to resolve an Article III “case” because the case’s legal

issues touched sensitive matters. Cohens v. Virginia,

19 U.S. 264, 404 (1821). More recently, the Court has

reaffirmed that the judiciary lacks a common-law power

to create policy-rooted “exceptions” to its jurisdiction.

See Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 126-28 (2014).

Two recent clarifications illustrate this point. The

first concerns “prudential” standing. Courts once held

that they could adopt “self-imposed limits” on deciding

cases for prudential reasons. Allen v. Wright, 468 U.S.

737, 751 (1984). But the Supreme Court has since clarified that courts may not create prudential-standing

common law. Lexmark, 572 U.S. at 128. Rather, they

may dismiss a suit based on a prudential limitation on

review only if the relevant law is best read to adopt this

limit as a matter of statutory interpretation (not judicial

policy). Id. The second concerns “prudential” exhaustion. Courts once suggested that they could create

exhaustion mandates (or exceptions) in common-law

fashion. See United States v. L. A. Tucker Truck Lines,

Inc., 344 U.S. 33, 35-38 (1952). But the Supreme Court

has now clarified that exhaustion likewise raises an interpretive question about whether a law contains an exhaustion mandate (or exception). See Ross v. Blake,

578 U.S. 632, 639 (2016); McCarthy v. Madigan, 503 U.S.

140, 144 (1992).

16a

These clarifications shed light on the judiciary’s

power to “abstain” from reviewing claims against the

military. True, the Supreme Court has “been reluctant

to intrude upon the authority of the Executive in military and national security affairs.” Austin v. U.S. Navy

Seals 1-26, 142 S. Ct. 1301, 1302 (2022) (Kavanaugh, J.,

concurring) (quoting Dep’t of Navy v. Egan, 484 U.S.

518, 530 (1988)). But it has never adopted a general abstention test grounded in judicial “policy” and applicable

to all claims against the military. Rather, the Court

has implemented its reluctance to interfere in military

affairs in three more precise (and legally rooted) ways—

in the way that it resolves statutory questions, in the

way that it oversees judge-made claims, and in the way

that it grants discretionary remedies.

When resolving statutory questions, the Court presumes that laws do not intrude into military affairs when

they are ambiguous on the point. Do the civil-service

laws give the Merit Systems Protection Board the power

to review the Navy’s denial of a security clearance? Do

the habeas laws give courts the power to review the

Army’s duty assignments? The Court answered “no”

to these questions by interpreting the laws to retain military independence. See Egan, 484 U.S. at 527-32;

Orloff v. Willoughby, 345 U.S. 83, 92-93 (1953). But

courts should not overread this canon of construction.

Just because “congressionally uninvited intrusion into

military affairs by the judiciary is inappropriate,”

United States v. Stanley, 483 U.S. 669, 683 (1987), does

not mean that courts may “decline” an invitation that

Congress has sent. They should review a claim against

the military if Congress has “provided” for that review.

Egan, 484 U.S. at 530; e.g., Parisi v. Davidson, 405 U.S.

34, 39, 44-46 (1972).

17a

When overseeing judge-made claims, the Court has

also refused to apply novel causes of action against the

military. Take Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

which adopted a claim for damages against federal officers for constitutional violations. Id. at 397. The

Court chose not to extend this Bivens remedy to the military because of its hesitancy to disrupt military functions. See Chappell v. Wallace, 462 U.S. 296, 300-04

(1983). This principle makes sense. Whatever source

of authority gave the Court the power to create Bivens

also gave it the power to limit Bivens. Yet a court

should also not take this principle too far. Courts have

long permitted “judge-made” claims seeking an injunction (not damages). Armstrong v. Exceptional Child

Ctr., Inc., 575 U.S. 320, 327 (2015). And they have long

permitted those claims against the military. See Stanley, 483 U.S. at 683 (citing cases).

When considering discretionary relief, the Court has

again accounted for the military context. A court may

deny an equitable remedy like an injunction even if a

plaintiff has a valid claim. See Weinberger v. RomeroBarcelo, 456 U.S. 305, 311-12 (1982); Younger v. Harris,

401 U.S. 37, 43-49 (1971). The Court thus considers the

effects on military operations when engaging in the balancing over whether to grant an injunction. See Winter, 555 U.S. at 24; Schlesinger v. Councilman, 420 U.S.

738, 757-58 (1975). This remedial discretion played a

big role in the sole military case that the Court dismissed on “political question” grounds. Gilligan v.

Morgan, 413 U.S. 1, 5-12 (1973). In Gilligan, students

at Kent State University sued the Ohio Governor and

Ohio National Guard following the shooting by guard

members that left several students dead. Id. at 3.

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They sought an amorphous injunction that would have

compelled the judiciary to oversee the Ohio National

Guard’s training and orders. Id. at 5-6. The Court

relied on the remedy’s sweeping scope to find the claim

nonjusticiable. Id. at 4-12. But it disavowed any

broad abstention test. Id. at 11-12. So when students

later sought more traditional relief for the same incident, the Court permitted their claims. See Scheuer v.

Rhodes, 416 U.S. 232, 249-50 (1974).

As its caselaw demonstrates, the Supreme Court has

never adopted anything like the abstention test that the

Air Force asks us to apply here. To justify this test,

therefore, the Air Force relies on Harkness, our only

decision to follow the Fifth Circuit’s Mindes decision.

But Harkness did not create a broad abstention test either. It applied Mindes to only one of the claims that

a military chaplain had brought against the Secretary of

the Navy. 858 F.3d at 443-51. We abstained from

hearing the claim that the Secretary had violated the

First Amendment by denying the chaplain assignments

in retaliation for his prior litigation. Id. at 443-45.

The chaplain cited no statute that allowed him to pursue

this claim. Id. He also did not seek damages and

could not seek an injunction because he had retired, so

our review could “obviate[]” no injury. Id. at 444.

Further, we did not abstain from resolving the chaplain’s other claim (that the Secretary had wrongly failed

to convene a “special selection board”) because this

claim had a clear statutory source. Id. at 441, 445 (citing 10 U.S.C. § 14502(h)(1)). We have thus invoked

Mindes only once for an unusual claim unconnected to

any cause of action or remediable injury.

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b. This precedent shows the proper way to approach

the Air Force’s request that we abstain from deciding

the Plaintiffs’ RFRA claims because the claims concern

military decisions. We must ask an ordinary question

of statutory interpretation: Is RFRA best read to

adopt an abstention test that allows courts to dismiss

claims for “policy reasons” or to require exhaustion

within the military? Mindes, 453 F.2d at 201. RFRA’s

text, structure, and context provide the answer: No.

Start with the text. RFRA contains a right to sue:

“A person whose religious exercise has been burdened

in violation of this section may assert that violation as a

claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C.

§ 2000bb-1(c). Because the Plaintiffs’ claims arise

from this statutory source, we may not adopt commonlaw abstention rules as if we were regulating a courtcreated claim. See Lexmark, 572 U.S. at 128; cf. Chappell, 462 U.S. at 298-304. The Plaintiffs’ claims here

thus resemble the claim that we found justiciable in

Harkness more than the one that we found nonjusticiable. See 858 F.3d at 443-51.

RFRA also applies to the Air Force and its vaccine

mandate. The law broadly defines the covered entities:

“the term ‘government’ includes a branch, department,

agency, instrumentality, and official (or other person

acting under color of law) of the United States[.]” 42

U.S.C. § 2000bb-2(a). It thus reaches the Air Force officers (“officials” of the “United States”) sued here.

The law also broadly defines the covered conduct:

“[t]his chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise,

and whether adopted before or after November 16,

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1993[.]” 42 U.S.C. § 2000bb-3(a). It thus reaches the

vaccine mandate, which “implements” federal law. See

U.S. Dep’t of Def. Instruction 6205.02, Dep’t of Def. Immunization Program (July 23, 2019) (authorized by 10

U.S.C. § 136(b)). While the Supreme Court has told us

not to interpret ambiguous laws to permit judicial review of military decisions, we must engage in that review where, as here, Congress “specifically has provided” for it. Egan, 484 U.S. at 530.

Two broader structural points reinforce that RFRA

does not allow us to accept the Air Force’s common-law

abstention request. For one thing, Congress identified

the justiciability rules to follow: “Standing to assert a

claim or defense under this section shall be governed by

the general rules of standing under article III of the

Constitution.” 42 U.S.C. § 2000bb-1(c). Since courts

must follow Article III’s rules whether or not RFRA

cited them, this text suggests that courts should not

adopt other judge-made limits to “govern” a RFRA

claim. See Hobby Lobby Stores, Inc. v. Sebelius, 723

F.3d 1114, 1155 (10th Cir. 2013) (en banc) (Gorsuch, J.,

concurring), affirmed sub nom., Burwell v. Hobby

Lobby Stores, Inc., 573 U.S. 682 (2014). To be sure, one

of our vacated decisions did not read RFRA to reject

prudential standing. See Autocam Corp. v. Sebelius,

730 F.3d 618, 623-24 (6th Cir. 2013), vacated by 573 U.S.

956 (2014). But that pre-Lexmark decision lacks precedential force. See CIC Servs., LLC v. Internal Revenue Servs., 925 F.3d 247, 256-57 (6th Cir. 2019), rev’d on

other grounds by 141 S. Ct. 1582 (2021). And we have

since noted that RFRA allows parties to sue “to the full

extent permitted by Article III.” New Doe Child #1 v.

Congress of United States, 891 F.3d 578, 586 (6th Cir.

2018).

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For another thing, when Congress imposed procedural limits on RFRA or related statutes, it did so expressly. The Prison Litigation Reform Act of 1995 requires prisoners to exhaust remedies at their prison before suing under any “Federal law[.]”

42 U.S.C.

§ 1997e(a). When passing RFRA’s sister statute, the

Religious Land Use and Institutionalized Persons Act of

2000 (RLUIPA), Congress noted that this prisonerexhaustion rule applied to that prison-focused statute.

42 U.S.C. § 2000cc-2(e). Other courts have recognized

that § 1997e(a) applies to prisoner-filed RFRA claims

too. See Jackson v. District of Columbia, 254 F.3d 262,

266-67 (D.C. Cir. 2001). Basic interpretive rules suggest that we should not add an implied militaryexhaustion requirement on top of this express prisonerexhaustion requirement. See Patsy v. Bd. of Regents

of Fla., 457 U.S. 496, 509-12 (1982).

RFRA’s historical context confirms this result.

Congress enacted RFRA after the Supreme Court

changed its reading of the Free Exercise Clause. In

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

held that state and federal laws that substantially burden religion (including neutral and generally applicable

laws) must satisfy strict scrutiny. See id. at 406-08;

Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). A plaintiff thus could use 42 U.S.C. § 1983—the cause of action

that permits suits against state actors for constitutional

violations—to challenge a neutral state law that flunked

this scrutiny. Yet, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S.

872 (1990), the Court departed from Sherbert by holding

that neutral and generally applicable laws categorically

comport with the Free Exercise Clause. Id. at 878-80.

In RFRA, Congress sought “to restore” Sherbert’s

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strict-scrutiny test for these types of laws.

§ 2000bb(a)(4), (b)(1).

42 U.S.C.

This backdrop shows that a pre-Smith free-exercise

claim under § 1983 represents the most analogous cause

of action to RFRA. The Supreme Court has already

said as much. When holding that RFRA allows damages suits against federal officials, it reasoned that

§ 1983 allowed similar suits before RFRA. Tanzin v.

Tanvir, 141 S. Ct. 486, 490-92 (2020). The same reasoning applies here. Before RFRA, § 1983 did not require a plaintiff to exhaust a free-exercise claim with a

state actor in order to sue that actor. Patsy, 457 U.S.

at 516. The lack of an exhaustion requirement in § 1983

shows that we should not read Mindes’s exhaustion requirement into RFRA.

In sum, we may adopt only those abstention rules

that comport with the law under which a plaintiff sues.

And RFRA does not contain Mindes’s test. So we are

left with our “virtually unflagging” duty to resolve the

Plaintiffs’ RFRA claims. Lexmark, 572 U.S. at 126 (citation omitted).

Ripeness

The Air Force alternatively argues that we should

dismiss the Plaintiffs’ claims under the “ripeness” doctrine. This doctrine bars a plaintiff from suing too

early. See Thomas v. Union Carbide Agric. Prods. Co.,

473 U.S. 568, 580 (1985). It has a constitutional element drawn from Article III’s limits on judicial review.

See Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 n.18

(1993). And it has a prudential element drawn from the

judiciary’s discretion over equitable relief. See Abbott

Laboratories v. Gardner, 387 U.S. 136, 148 (1967). The

Air Force invokes both elements.

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Constitutional Ripeness. Article III permits us to

resolve only “Cases” or “Controversies.” U.S. Const.

art. III, § 2, cl. 1. A plaintiff has filed a constitutionally

“unripe” case if the plaintiff seeks relief for a speculative

injury that will occur only if certain contingencies come

to pass. See Trump v. New York, 141 S. Ct. 530, 535

(2020) (per curiam). This element largely duplicates

Article III’s separate “standing” test. See Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 158 n.5 (2014).

In their constitutional senses, both doctrines require a

“certainly impending” injury. Compare Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 409 (2013), with

Thomas, 473 U.S. at 581.

At this stage, the Plaintiffs need only show a “substantial likelihood” of that injury. See Vitolo v. Guzman, 999 F.3d 353, 359 (6th Cir. 2021). Because an Article III case must have existed when the Plaintiffs sued,

we must consider the facts as they were then. See

Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 n.4 (1992).

Chaplains had confirmed that the vaccine mandate substantially burdened the Plaintiffs’ sincerely held religious beliefs. But different Plaintiffs had reached different steps of the Air Force’s 11-step process. Some

had received final denials from the Surgeon General.

Others had appeals of initial denials pending with him.

Still others had not yet received an initial denial from

the commander of the relevant Major or Field Command.

Did all the Plaintiffs face a certainly impending injury? We need not engage in this inquiry on a Plaintiffby-Plaintiff basis because even the Plaintiffs who had

yet to receive an initial denial showed a significant likelihood of such an injury (and thus the Plaintiffs further

24a

along in the process necessarily did too). The Plaintiffs’ claims implicate two common paths to proving future injuries.

Path One: Parties often allege that they plan to engage in an activity (for example, speech protected by the

First Amendment), but that a law bars that activity.

See Driehaus, 573 U.S. at 158-61. In that situation,

parties need not first undertake the activity and risk

punishment for violating the law before seeking review

over whether they have a right to do so. MedImmune,

Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007).

The government’s future enforcement of the law counts

as an “impending” injury if a court can answer “yes” to

two questions: Does a plaintiff seek to engage in conduct that the law “arguably” prohibits? Driehaus, 573

U.S. at 161-62 (citation omitted). And has the plaintiff

shown a “credible threat” that the government will enforce it against the plaintiff? Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298 (1979).

Here, all the Plaintiffs likely proved an imminent injury from the Air Force’s future enforcement of its mandate to take a COVID-19 vaccine. Driehaus, 573 U.S. at

161. For starters, they proved their “intention” to undertake conduct “arguably” protected by RFRA because they had all filed written requests for religious exemptions. Babbitt, 442 U.S. at 298.

The Plaintiffs have also shown that their refusal to

take a vaccine would “arguably” violate the mandate

even though—in theory, at least—some could still get an

exemption at the time that they sued. Driehaus, 573

U.S. at 162 (citation omitted). Even then, a near certainty existed that the Air Force would deny the exemption requests of those Plaintiffs who had yet to receive

25a

an initial decision. Cf. id. at 158 (quoting Clapper, 568

U.S. at 414 n.5). The Air Force had approved just 25

of the over 7,500 then-existing requests. DAF COVID19 Statistics—March 2022, https://perma.cc/N47BUB29. It had also granted the few exemptions only to

individuals who had agreed to leave the Air Force within

a year. Arg., No. 22-3497, at 51:33-52:07. The Air

Force points to no evidence suggesting that the Plaintiffs meet this criterion.

The Plaintiffs have lastly shown a “substantial”

“threat” that the Air Force would enforce the mandate.

Driehaus, 573 U.S. at 164. Secretary Kendall issued a

memorandum “warning” service members of the sanctions for not complying. Fischer v. Thomas, 52 F.4th

303, 307 (6th Cir. 2022) (per curiam). He noted that

those who refused to get vaccinated after the Air Force

had denied an exemption “will be subject to initiation of

administrative discharge.” R.27-8, PageID 1657 (emphasis added). The Air Force also had a “history” of

enforcing this mandate against “others” who refused to

comply. Fischer, 52 F.4th at 307. It had “administratively separated 236 active duty Airmen” near the time

of this suit. DAF COVID-19 Statistics—March 2022.

Path Two: Parties often allege that they seek a government benefit but that the government has forced

them to proceed through an unlawful process to obtain

it. A plaintiff might allege that the government has

adopted a policy that gives permit-issuing officials too

much discretion over whether to grant a permit for

speech on public property. See City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 755-56 (1988). A

speaker who desires a permit does not need to proceed

through this allegedly invalid process to challenge the

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policy in court. See id.; Lac Vieux Desert Band of Lake

Superior Chippewa Indians v. Mich. Gaming Control

Bd., 172 F.3d 397, 406-08 (6th Cir. 1999). Similarly, a

plaintiff might allege that the government has adopted

a policy that discriminates on the basis of race in the

awarding of public contracts. See Ne. Fla. Chapter,

Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). A contractor who is

“able and ready” to apply for a contract need not proceed through the discriminatory process (and have the

application denied) before challenging the policy. Id.;

Vitolo, 999 F.3d at 358-59.

Here, the Plaintiffs were “able and ready” to apply

for exemptions since they had already done so when

they sued. Ne. Fla. Chapter, 508 U.S. at 666. And the

Plaintiffs do not only complain about the final denials.

They also complain about the Air Force’s policies for deciding whether to grant exemptions. The Plaintiffs assert that the Air Force has followed a “de facto policy”

to reject all religious exemptions “regardless of their individual circumstances” and a “discriminatory policy” to

deny religious exemptions in favor of other exemptions.

Doster, 48 F.4th at 613. Just as someone may challenge a racially discriminatory policy for awarding contracts without receiving a formal denial, Ne. Fla. Chapter, 508 U.S. at 666, so too the Plaintiffs likely can challenge a religiously discriminatory policy without receiving a formal denial.

In response, the Air Force asserts that Plaintiffs may

not raise their RFRA claims until it initiates termination

proceedings against them for failing to take a vaccine, at

which point they can invoke RFRA as a defense. This

argument conflicts with century-old law. The Supreme

27a

Court has long held that parties may raise pre-enforcement challenges to a legal mandate before engaging in

the act that will trigger it. See MedImmune, 549 U.S.

at 128-29. This rule also extends to threatened “administrative action[.]”

Driehaus, 573 U.S. at 165.

The Plaintiffs thus need not wait until the Air Force has

kicked them out for exercising their religion before their

claims are ripe.

Prudential Ripeness. The Supreme Court measures a case’s “prudential” ripeness using two metrics,

asking whether it raises legal issues “fit[]” for review

and whether the plaintiff would suffer “hardship” from

delay. Abbott Laboratories, 387 U.S. at 149. Recently, the Court questioned whether it may impose

these “prudential” limits on cases over which it has jurisdiction. Driehaus, 573 U.S. at 167. This concern

has special resonance for RFRA given that it refers only

to Article III standing. 42 U.S.C. § 2000bb-1(c). Yet

prudential ripeness might have stronger legal footing

than the Air Force’s requested abstention test because

it arises from the judiciary’s traditional discretion over

equitable relief. See Miller v. City of Wickliffe, 852

F.3d 497, 507-08 (6th Cir. 2017) (Rogers, J., concurring).

And RFRA gives courts the power to grant “appropriate

relief,” a phrase that likely incorporates that discretion.

42 U.S.C. § 2000bb-1(c). Yet we need not “resolve” this

debate now because the Plaintiffs “easily” meet the two

prudential factors. Driehaus, 573 U.S. at 167.

Courts commonly find a case “fit” for review if the

government has issued a “final decision” on a matter.

See Pakdel v. City & Cnty. of San Francisco, 141 S. Ct.

2226, 2228 (2021) (per curiam). Under this “relatively

modest” requirement, the government need only have

28a

reached a non-tentative finding. Id. at 2230. So, for

example, an agency makes a final decision when it issues

a “jurisdictional determination” that certain lands contain “waters of the United States” triggering the Clean

Water Act’s requirements. U.S. Army Corps of Eng’rs

v. Hawkes Co., 578 U.S. 590, 593, 597-600 (2016). The

landowner may sue immediately to challenge that nontentative determination and does not need to wait and

see whether the agency will enforce the Act against it.

Id. at 600-02.

The Air Force has reached the same type of “final”

decision for most of the Plaintiffs. We evaluate prudential ripeness (unlike Article III jurisdiction) based

on the facts that exist now, not at the time of the complaint. See Reg’l Rail Reorganization Act Cases, 419

U.S. 102, 140 (1974); DM Arbor Ct., Ltd. v. City of Houston, 988 F.3d 215, 219-20 (5th Cir. 2021). The Plaintiffs tell us that 14 of them have now had their appeals

denied by the Surgeon General. Appellees’ Br., No. 223497, at 26. (We could find only 10 final denials in the

record, but the Air Force does not dispute this fact.)

The Air Force thus has reached a “definitive” position

that these Plaintiffs do not qualify for exemptions.

Hawkes, 578 U.S. at 598. That is enough. Pakdel, 141

S. Ct. at 2230.

Even the four Plaintiffs who have yet to have their

appeals rejected meet this “fitness” element given the

nature of their claims. The Supreme Court has held

that a party can raise a “fit” challenge to a government

process before the party finishes the process—as when

the party challenges the authority of a non-Article III

tribunal to adjudicate a claim. See Thomas, 473 U.S. at

580-81. And the Plaintiffs allege that the Air Force has

29a

adopted an exemption process plagued by illegal policies

of discrimination and of denying all exemptions for generalized reasons.

Courts commonly find “hardship” from delayed review when a government decision has “adverse effects

of a strictly legal kind”—namely, when it compels a

party to undertake activity on threat of sanction. Ohio

Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733

(1998). The Air Force’s vaccine mandate shares this

trait. Because the Surgeon General has denied the appeals of most Plaintiffs, they face a choice between violating their religious beliefs by taking the vaccine or

“risking” a sanction by failing to follow an order.

Driehaus, 573 U.S. at 167-68.

Even the Plaintiffs who have yet to have their appeals denied have shown hardship from delayed review.

After the Surgeon General denies an appeal, the Air

Force gives service members a mere five days to take a

vaccine or face sanctions. R.42-5, PageID 2998; R.1121, PageID 569. Sergeant Theriault, for example, received notice of his denial on January 25, 2022, was ordered to take a vaccine by January 30, and had been

“reprimanded” by February 8. R.11-21, PageID 569-71.

When the government pressures parties to give up intangible rights like those protected by RFRA, courts

should not delay review until the time that the parties

must rush into court seeking a temporary restraining

order to protect these rights. See Carey v. Wolnitzek,

614 F.3d 189, 196 (6th Cir. 2010); cf. Sec’y of State of Md.

v. Joseph H. Munson Co., 467 U.S. 947, 956-57 (1984).

The case on which the Air Force relies says nothing

to the contrary. See Miles Christi Religious Ord. v.

Township of Northville, 629 F.3d 533, 537-41 (6th Cir.

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2010). In Miles Christi, a religious order used a home

for religious services, and zoning officials decided that

the order must build a parking lot or get a variance.

Id. at 535. We found the religious order’s RLUIPA

suit unripe. Id. Unlike the Plaintiffs who have obtained final denials from the Surgeon General, the religious order could obtain a variance. See id. at 538.

And unlike the other Plaintiffs, the religious order did

not attack the variance process itself. See id. That

process also stayed enforcement proceedings. See id.

at 542. So the possibility of a variance eliminated the

need for the religious order to choose between exercising its religion or risking those proceedings. Most

Plaintiffs now face that “Hobson’s choice.” Id. at 540.

And because the others would face this choice within five

days of the Surgeon General’s denial, they should not

have to wait. All Plaintiffs thus likely filed ripe claims.

RFRA Merits

The Air Force next turns to the merits. Yet the

Plaintiffs also likely will prove that the Air Force violated RFRA when it denied their requests for religious

exemptions from its COVID-19 vaccine mandate. See

Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir.

2012).

We start with the RFRA ground rules. The law

grants “very broad” legislative “protection for religious

liberty.” Hobby Lobby, 573 U.S. at 693. It adopts a

blanket prohibition: “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). It then carves out a narrow

exception: “Government may substantially burden a

31a

person’s exercise of religion only if it demonstrates that

application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2)

is the least restrictive means of furthering that compelling governmental interest.” Id. § 2000bb-1(b).

This text adopts a burden-shifting approach.

RFRA plaintiffs must initially prove that a government

action violates the law’s general ban on burdening religion. See Holt v. Hobbs, 574 U.S. 352, 360-61 (2015).

(Holt considered a RLUIPA claim, but the Supreme

Court relies on its precedent for the two laws interchangeably. See Ramirez v. Collier, 142 S. Ct. 1264,

1277 (2022) (relying on O Centro, 546 U.S. at 429-30).)

To meet their burden, plaintiffs must prove that they

hold the religious belief that they espouse and do not

seek to use religion as a pretext to avoid a governmentimposed duty. Hobby Lobby, 573 U.S. at 717 n.28.

They also must prove that the government has substantially burdened their religion by, for example, punishing

religiously motivated conduct. See Holt, 574 U.S. at

361.

Once plaintiffs satisfy this step, the burden switches

to the government to “demonstrate”—in other words,

satisfy the “burdens” of production and “persuasion”—

that the challenged government action falls within

RFRA’s narrow exception to its ban on burdening religion. 42 U.S.C. §§ 2000bb-1(b), 2000bb-2(3); see O Centro, 546 U.S. at 429. This exception codifies as statutory law what the Supreme Court has called the “most

demanding test known to constitutional law”: strict

scrutiny. City of Boerne v. Flores, 521 U.S. 507, 534

(1997).

32a

The government will successfully run this strict-scrutiny gauntlet only in “rare cases.” Church of Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546

(1993). It must first identify a “compelling” interest

for its action. 42 U.S.C. § 2000bb-1(b)(1). Before

RFRA, the Supreme Court had made clear that this

word “means what it says[.]” Smith, 494 U.S. at 888.

The government must rely on interests that serve the

“highest order,” Yoder, 406 U.S. at 215, or seek to stop

“the gravest abuses,” Sherbert, 374 U.S. at 406. The

interests that the government cites in court also must be

the “true” reasons for its action; it may not rely on

made-for-litigation interests. Haight v. Thompson,

763 F.3d 554, 562 (6th Cir. 2014) (citation omitted).

The government next must prove that its action qualifies as the “least restrictive means” to further its interest. 42 U.S.C. § 2000bb-1(b)(2). This test represents

the most rigorous type of “means-ends” scrutiny. See

Hobby Lobby, 573 U.S. at 728. It requires the government to show more than that its proposed action is “narrowly tailored” to the interest that it seeks to serve.

See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.

469, 477-78 (1989). Rather, the government must show

that every other possible “alternative will be ineffective

to achieve its goals”; if any less-restrictive alternative

exists, the government “must use it.” United States v.

Playboy Ent. Grp., Inc., 529 U.S. 803, 815-16 (2000); see

also Holt, 574 U.S. at 364-65.

RFRA prohibits the government from relying on

generalities to meet either part of this test. The government instead must show that its “marginal interest”

in enforcing a mandate against a specific “person” is

compelling and that it cannot further its interest in an-

33a

other way that imposes less of a burden on that person’s

religious exercise. 42 U.S.C. § 2000bb-1(b); Hobby

Lobby, 573 U.S. at 726-27. When considering compelling interests and alternative means, the government

has often lost sight of this individualized focus. For example, it may well have critical safety interests in the

ban on the “exceptionally dangerous” drugs in Schedule

I of the Controlled Substances Act. O Centro, 546 U.S.

at 430-32. But the Attorney General wrongly relied on

that general interest when seeking to bar a religious

sect’s specific use of a tea listed in Schedule I. Id. at

432-37. Similarly, when considering alternatives to a

mandate that all employers (including those with religious objections) provide employees with insurance for

contraception, the government should consider paying

for this coverage itself. See Hobby Lobby, 573 U.S. at

728-30. And it cannot rebut that option with a generalized showing that it would cost too much to insure all

women; the alternative means must be unfeasible even

for the smaller subset whose employers have religious

objections. See id.

Of particular relevance, RFRA provides greater protection to religion in this military context than the Supreme Court’s current view of the Free Exercise

Clause. As noted, Smith read that clause not to trigger

Sherbert’s strict-scrutiny test as long as a government

action is neutral and generally applicable. 494 U.S. at

878-80. Even before Smith, though, the Court had refused to apply strict scrutiny to military regulations that

burdened a service member’s religious exercise. Id. at

884 (discussing Goldman v. Weinberger, 475 U.S. 503

(1986)). Goldman upheld an Air Force regulation requiring “standardized uniforms” that had the effect of

barring a Jewish service member from wearing a yar-

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mulke. 475 U.S. at 504-05, 508-09. The Court held

that the Constitution required courts to review “military

regulations” with a “far more deferential” eye than the

scrutiny that governs “similar laws or regulations designed for civilian society.” Id. at 507. It added that

it must give “great deference” to military judgments

about the “relative importance of a particular military

interest.” Id. RFRA’s text, by contrast, prohibits

this rational-basis-style deference.

Although Goldman rejected Sherbert’s strict-scrutiny test in the military context (at least for a military regulation that was

arguably neutral and generally applicable), RFRA requires the government to meet that test for all actions

that substantially burden religious exercise, including

actions by a military “branch.” 42 U.S.C. § 2000bb2(1); see id. § 2000bb-1(b).

The Air Force likely cannot satisfy these standards.

The burdens of proof at this preliminary-injunction

stage “track the burdens” of proof at trial. O Centro,

546 U.S. at 429. The Plaintiffs met their duty to prove

that the vaccine mandate imposed a substantial burden

on their sincerely held religious beliefs. See Ramirez,

142 S. Ct. at 1277. The Air Force required them to participate in deposition-style inquiries into their beliefs,

and its own chaplains found them sincere. A refusal to

take a vaccine also triggers “serious disciplinary” sanctions. Holt, 574 U.S. at 361.

The “burdens of going forward with the evidence and

of persuasion” thus shifted to the Air Force to show that

it could satisfy strict scrutiny. 42 U.S.C. § 2000bb-2(3).

At the outset, the Air Force does not attempt to meet

these burdens by citing any “extraordinarily compelling

interest in maintaining strategic and operational control

35a

over the assignment and deployment” of its personnel.

Austin, 142 S. Ct. at 1302 (Kavanaugh, J., concurring).

The Supreme Court seemingly relied on that interest

when it stayed an injunction to the extent it barred the

Navy from considering a Navy Seal’s vaccination status

in its operational decisions.

Id. at 1301 (order).

Here, by contrast, the district court’s injunction allows

the Air Force to consider the Plaintiffs’ vaccination status when making such decisions. Doster, 2022 WL

982299, at *17. The injunction bars the Air Force only

from taking “adverse or punitive action against” them.

Id. And the Air Force has failed to show that it has a

compelling interest in forcing the Plaintiffs to get vaccinated on threat of punishment or that this action is the

least restrictive means to serve such an interest.

a. Compelling Interests. The Air Force asserts

that it can punish the Plaintiffs for failing to get vaccinated because this mandate serves two compelling interests: those in “military readiness” and in the “health

of its troops.” Appellants’ Br., No. 22-3497, at 31. It

highlights the need for all of its personnel to be immediately deployable, id. at 33; the potential harms to a mission from a COVID-19 outbreak in a deployed setting,

id.; the vaccine mandates in other countries, id. at 34;

the need for members to be in close contact at home, id.;

and the reduced health risks for vaccinated personnel,

id. at 35-36. These arguments conflict with two wellestablished rules.

First, “invocation of such general interests, standing

alone, is not enough.” O Centro, 546 U.S. at 438. Just

as the Attorney General could not rely on the generally

dangerous nature of the drugs barred by the drug laws

to stop a specific religious sect from using a prohibited

36a

tea, id. at 432-33, the Air Force cannot rely on its general readiness or health concerns to refuse specific exemptions. In the abstract, the Air Force may well have

a compelling interest in requiring its 501,000 members

to get vaccinated. It has also largely achieved this general interest, as evidenced by its ability to vaccinate over

97% of its force. DAF COVID-19 Statistics—July

2022. Under RFRA, however, the Air Force must

show that it has a compelling interest in refusing a “specific” exemption to, say, Lieutenant Doster or Airman

Colantonio. Hobby Lobby, 573 U.S. at 726-27; O Centro, 546 U.S. at 431. And just because it might have a

compelling interest in the abstract does not mean that it

has one “in each marginal percentage point by which” it

achieves this abstract interest. Brown v. Ent. Merchs.

Ass’n, 564 U.S. 786, 803 n.9 (2011).

To succeed under RFRA’s “ ’more focused’ inquiry,”

the Air Force must identify the duties of each Plaintiff

and offer evidence as to why it has a compelling interest

in forcing someone with those duties to take the vaccine

or face a sanction. Hobby Lobby, 573 U.S. at 726 (quoting O Centro, 546 U.S. at 430). The Air Force itself

concedes the need for this Plaintiff-by-Plaintiff inquiry.

It opposed the certification of a class action because

“differences in occupational duties, deployment tempo,

and work environment all factor into” the RFRA analysis, R.34, PageID 2213, and because “the roles and responsibilities of individual Airmen and Guardians may

differ vastly,” R.34-2, PageID 2235. But the Air Force

did not even undertake this individualized inquiry during this litigation, let alone prove a compelling “marginal” interest for any specific Plaintiff. Hobby Lobby,

573 U.S. at 727.

37a

Most glaringly, the Air Force’s opening brief did not

describe the duties of a single Plaintiff. From a review

of that brief, we would have no idea that Lieutenant Doster was a student at the Air Force Institute of Technology at the start of this suit and later became a developmental engineer at the Air Force Research Lab. R.48,

PageID 3211, 3215. Nor would we know that Airman

Colantonio serves as a fuel-systems technician, R.42-1,

PageID 2776, or that Airman Dills serves as a passenger

representative helping passengers on and off flights,

R.48, PageID 3254, 3270-71. Even after the district

court identified this legal error, Doster, 2022 WL

982299, at *13, the Air Force has doubled down on appeal by mistakenly relying on generalized interests.

An example shows why the Air Force cannot do so.

It asserts that the COVID-19 vaccine mandate furthers

its readiness interest by ensuring that service members

can quickly deploy. It is “hard to swallow” the claim

that this interest was compelling for Lieutenant Doster

when he attended the Air Force Institute of Technology.

Holt, 574 U.S. at 364. Personnel in training “are not immediately ready for deployment,” R.34-5, PageID 228182, so the Air Force treated Doster as “non-deployable,”

R.42-3, PageID 2846. To accept the Air Force’s generalized “readiness” argument, we would have to find that

it has a compelling interest in ensuring the immediate

deployability of someone who is not immediately deployable. Only “unquestioning deference” could uphold

such a claim. Holt, 574 U.S. at 364.

The Air Force responds that the district court failed

to cite its “detailed declarations and record materials”

allegedly explaining why each Plaintiff ’s duties required

that Plaintiff to take a vaccine. Appellants’ Br., No. 22-

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3497, at 40. But, as far as we can tell, the Air Force

introduced Plaintiff-specific declarations for only 5 of

the 18 Plaintiffs. R.27-19 to R.27-23, PageID 19812026. And besides, “ ’[j]udges are not like pigs, hunting

for truffles’ that might be buried in the record.” Dibrell

v. City of Knoxville, 984 F.3d 1156, 1163 (6th Cir. 2021)

(citation omitted). The Air Force failed to engage in

the properly focused inquiry where it belonged—in its

briefing.

The Air Force’s declarations also raise red flags that

it seeks to rely on after-the-fact “rationalizations” made

for this suit. Haight, 763 F.3d at 562. For example, in

one post-litigation declaration, Airman Colantonio’s

group commander (Colonel Deedrick Reese) testified

that Colantonio needed the vaccine partly because she

must work “in close settings with other service members” as a fuel-systems technician. R.27-22, PageID

2014. During the earlier exemption process, however,

her squadron commander recommended granting an exemption because of her work’s inherent COVID-19 protections: “Much of the fuels maintenance is done wearing protective respirators due to the fuel vapors, so

safety protection is big priority on a daily basis[.]”

R.42-1, PageID 2776. During that process, Colonel

Reese did not cite work-related concerns to recommend

a denial; he noted only that Colantonio (like all Air Force

personnel) may need to deploy quickly. Id., PageID

2778. This generalized analysis fails to pass muster

under RFRA. And the Air Force cannot come up with

other more specific interests merely “in response to litigation.” Haight, 763 F.3d at 562 (citation omitted).

Second, the Supreme Court has told us to ask an objective question to uncover whether the Air Force con-

39a

siders its interests compelling: Does it discriminate

against religious conduct by permitting other conduct

that undercuts its interests in the same way? The

Court held, for example, that an exemption in the drug

laws for the use of peyote undercut the claim that the

Attorney General had a compelling safety interest in

stopping the religious sect’s use of tea. See O Centro,

546 U.S. at 433. And here, the Air Force appears to

freely grant medical and administrative exemptions

from its vaccine mandate. These exemptions “produc[e] substantial harm” to the health and readiness interests that the Air Force claims to be compelling.

Lukumi, 508 U.S. at 547.

As for its health interest, the Air Force says that it

must reject religious exemptions because those working

in “close physical contact” can spread COVID-19. Appellants’ Br., No. 22-3497, at 34. But the Air Force has

allowed medical or administrative exemptions even

when these exemptions undercut that interest. The

Surgeon General, for example, denied Lieutenant Doster a religious exemption because his work as a student

“require[d] intermittent to frequent contact with others[.]” R.19-1, PageID 944. But the Air Force granted

multiple medical exemptions to pregnant women who

worked with him and performed “identical assignments[.]” R.46-1, PageID 3123; R.48, PageID 3215-16.

Likewise, the Surgeon General denied Airman Dills a

religious exemption because he had “frequent contact

with others” as a passenger representative. R.42-2,

PageID 2817. Yet Dills worked with “[s]everal” colleagues who obtained other exemptions. R.48, PageID

3261. The Air Force allowed these members to continue “interacting with people” and “working in close

quarters” without change. Id., PageID 3262. Per-

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haps most striking, the Surgeon General denied a religious exemption for Major Corvi (a class member) because her assignment “require[d] intermittent to frequent contact with others.” R.53-1, PageID 3788. In

the same month, she received a medical exemption for

her pregnancy. Id., PageID 3789; R.52-1, PageID

3461, 3502, 3508. The Air Force does not explain why

service members who remain unvaccinated because of

their pending retirement or pregnancy pose less of a

risk of spreading COVID-19 than those who remain unvaccinated because of their religion.

As for its readiness interest, the Air Force says that

it must ensure that all service members remain immediately deployable. But service members who obtain

medical or administrative exemptions generally cannot

deploy because the Air Force treats anyone who has not

taken a COVID-19 vaccine as nondeployable. Appellants’ Br., No. 22-3702, at 8. (Commanders may grant

exceptions and permit unvaccinated members to deploy

on a case-by-case basis. R.34-3, PageID 2251-52.) So

even though the Surgeon General denies religious exemptions on the ground that the Air Force “must be able

to leverage our forces on short notice,” R.19-1 PageID

944, the Air Force does not believe that this “immediately deployable” concern also requires it to compel the

vaccination of a service member who has an allergy or

plans to retire in the near future.

The Air Force responds that the other exemptions do

less harm to this deployability interest because they last

for shorter periods. The Air Force treats religious exemptions as permanent. It treats medical exemptions

as temporary because factual changes (like a new vaccine to which a member is not allergic) would allow a

41a

medically exempt service member to take a vaccine

later. R.27-12, PageID 1922-23, 1925. According to

military guidance, a medical exemption also may last

only a year, at which point the Air Force must assess

whether to discharge the service member. R.34-5,

PageID 2276, 2282-83. But religious and medical exemptions can be “temporary” in an identical way. An

allergic service member is permitted to wait for a new

vaccine that does not contain the allergy-triggering ingredient. R.27-17, PageID 1959 & n.14. Most Plaintiffs would likewise take a new vaccine made in a manner

consistent with their beliefs. See, e.g., R.11-17, PageID

533; R.11-19, PageID 548. So a single new vaccine (one

that contains a different ingredient and that is made in

a different way) could simultaneously alleviate the physical and spiritual obstacles. Yet the Air Force gives the

medical objector at least a year-long exemption and the

religious objector an immediate denial.

Regardless, the Air Force does not automatically discharge service members with medical exemptions after

a year. The guidance on which the Air Force relies

notes that it may retain nondeployable personnel for

longer “on a case-by-case basis” if it is in the military’s

interest.

R.34-5, PageID 2279, 2290.

Top-notch

fighter pilots thus may receive indefinite allergy exemptions. But Lieutenant Colonel Stapanon, who earned

two air medals during Operation Iraqi Freedom, cannot

obtain an indefinite religious exemption. R.45, PageID

3068, 3078-79. This “system” of case-by-case “exceptions” to deployability further undermines the Air

Force’s claimed interest that all service members must

be immediately deployable. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882 (2021). This same guidance,

moreover, treats several types of service members as

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permanently nondeployable, including conscientious

objectors. R.34-5, PageID 2285-86. If the Air Force

can permanently retain those who cannot deploy because of their religious objections to a war, it must explain why it cannot permanently retain those who cannot deploy because of their religious objections to a vaccine.

b. Least Restrictive Means. The Air Force next

says that its requirement that the Plaintiffs take a

COVID-19 vaccine or get sanctioned is the “least restrictive means” to achieve its interests. It explains

that regular testing may catch an infection too late, Appellants’ Br., No. 22-3497, at 41, that the science remains

unclear over the protection from “natural immunity,” id.

at 42, that “masking” depends on the “wearer’s behavior” and does not reduce the risk of bad health outcomes,

id. at 43, and that those who must deploy or work in

close contact cannot isolate, id.

These arguments suffer from the same two legal

flaws. First, the Air Force lists generic reasons why

no other means will achieve its interests; it does not undertake a “ ‘more focused’ inquiry” into whether alternative means exist for each Plaintiff. Hobby Lobby, 573

U.S. at 726 (quoting O Centro, 546 U.S. at 430). But

RFRA requires it to explain why a Plaintiff ’s specific

duties prevented all other options, such as masking, social distancing, or reassignment. The Air Force’s general “conjecture” that mask wearers behave irresponsibly, for instance, does nothing to establish that a specific

Plaintiff will. Ramirez, 142 S. Ct at 1280. Second, the

Air Force does not justify its discrimination. Because

it accommodates other personnel for secular reasons, it

must explain why it could not extend the identical ac-

43a

commodation to those who requested it for religious reasons. See Hobby Lobby, 573 U.S. at 730-31; see also

Fulton, 141 S. Ct. at 1882; Holt, 574 U.S. at 367-68. It

did not do so.

Again consider the Air Force’s asserted health interest in stopping the spread of COVID-19. It bears the

burden of showing that no alternative means exist for

each Plaintiff. See Ramirez, 142 S. Ct. at 1281. It attempted to satisfy this burden by stating that all Plaintiffs “work in close contact with others[.]” Appellants’

Br., No. 22-3497, at 43. But it cites evidence for only

half of the Plaintiffs. Id. And it engages in no individual analysis. When Lieutenant Doster attended the

Air Force Institute of Technology, for example, his commander noted that he could “telework.”

R.42-3,

PageID 2846. Even if teleworking will not suffice for

future roles, the Air Force must explain why it would

not have sufficed for that role. Likewise, the Air Force

must explain why it cannot provide the same accommodation to Airman Dills in his role as a passenger representative that it provided to his colleagues who received

other exemptions. R.48, PageID 3261-62. Similarly,

Major Reineke works in a squadron that “train[s] undergraduate remotely piloted aircraft pilots and sensor

operators.” R.42-5, PageID 2964. His squadron commander found that the squadron could accommodate his

request because he spent “most of his time on administrative tasks at his desk” in a “large ventilated room”

“where transmission can be mitigated via a facial covering and social distancing.” Id. While others up the

chain disagreed, e.g., R.42-5, PageID 2968, the Air

Force cannot rebut his squadron commander’s precise

factual claims with vague generalities.

44a

In addition, the Air Force ignores an obvious alternative: It may reassign any Plaintiff who works in too

close of contact with others. The Air Force’s general

religious-accommodation instruction lists “reassignment” as an option it should consider. DAFI 52-201,

§ 2.7, at 4. Nothing in the injunction prohibited that

option, Doster, 2022 WL 982299, at *17, and the Air

Force makes no claim that reassignment would be administratively unfeasible, cf. Holt, 574 U.S. at 368. But

the Air Force never even considered whether reassigning the Plaintiffs to positions capable of teleworking (or

that allowed other preventative measures) could serve

as a less-restrictive means of advancing its interests.

Or consider the Air Force’s general interest in ensuring that every member be immediately deployable. A

developmental engineer like Doster “rarely deploys,”

and only “1%” of those engineers work outside the country. R.42-3, PageID 2847. Why couldn’t the Air Force

equally serve this interest by waiting to compel Doster

and others with a low likelihood of deployment to take a

one-dose vaccine only if in fact they receive orders to

quickly deploy? Secretary Kendall’s guidance raised

this possibility, noting that “changes in circumstances,”

like a “deployment,” could lead the Air Force to reassess

a religious exemption. R.27-7, PageID 1652. In addition, the Air Force does not require all personnel to take

other vaccines on the speculation that they might need

these vaccines someday if they must quickly deploy to

certain places. It instead requires some vaccines (such

as for yellow fever) only for certain duty assignments.

R.27-6, PageID 1624.

Lastly, the Air Force fails to explain why it could not

help willing Plaintiffs obtain alternative vaccines that do

45a

not burden their faiths. For unidentified reasons, it

permits service members to meet its mandate by traveling overseas to take a COVID-19 vaccine approved by

the World Health Organization (but not the FDA).

R.27, PageID 1561. Two Plaintiffs (Connor McCormick and Alex Ramsperger) felt compelled to travel to

Mexico at personal expense to take one such FDA-unapproved vaccine (Covaxin) because the Air Force threatened to cancel their pilot training. R.66-1, PageID

4402. Yet the Air Force did not “meaningfully facilitate” their trip. Id. at 4404. If this mandate truly

serves an “interest of the highest order,” it is “hard to

understand” why the Air Force believes that it need not

“pay anything in order to achieve this important goal.”

Hobby Lobby, 573 U.S. at 729. (The Air Force now alleges that these two Plaintiffs’ claims are moot. We

will leave that issue for the district court because other

Plaintiffs have live claims for injunctive relief, see T.M.

ex rel. H.C. v. DeWine, 49 F.4th 1082, 1087 n.3 (6th Cir.

2022), and because RFRA permits damages suits, see

Tanzin, 141 S. Ct. at 491.)

* * *

At day’s end, the Air Force all but acknowledges that

it cannot succeed under traditional strict-scrutiny review. It instead asks us to read RFRA as if it simply

codified the “great deference” that the Supreme Court

had previously given to the military under the Free Exercise Clause. Appellants’ Br., No. 22-3497, at 32 (quoting Goldman, 475 U.S. at 507). We see no textual path

to that result. Indeed, the Air Force does not ground

this claim in RFRA’s text. Rather, it points to a statement in a Senate Report noting that courts have “always

extended to military authorities significant deference in

46a

effectuating” their compelling interests and that the

committee “intends and expects that such deference will

continue under” RFRA. S. Rep. No. 103-111, at 12

(1993).

This statement resembles the type of “strategic manipulation[]” that the Supreme Court has warned

against. Exxon Mobil Corp. v. Allapattah Servs., Inc.,

545 U.S. 546, 568 (2005). Perhaps these Senators (or

their staffers) made the statement because they could

not get a military “exception” into the law. But the

Senators failed to reconcile their unenacted intent with

the law’s enacted text. Goldman deferred to the military in a particular way: by reading the Free Exercise

Clause to depart from Sherbert’s strict-scrutiny test.

475 U.S. at 507. In sharp contrast, RFRA unambiguously codified that test. The Senate Report itself elsewhere recognized that Goldman rejected strict scrutiny

but that RFRA required it. Id. at 11-12. A separate

House Report likewise recognized that “[s]eemingly

reasonable” military “regulations based upon speculation” would not survive RFRA. H.R. Rep. 103-88, at 8

(1993). In all events, RFRA’s text—not its legislative

history—is the law that binds. And its text requires us

to apply the “most demanding test known to constitutional law,” not some watered-down knockoff. City of

Boerne, 521 U.S. at 534.

To be sure, strict scrutiny permits courts to recognize that military officers are “experts” in overseeing a

lethal military force, just as it permits them to recognize

that prison administrators are “experts” in running a secure prison. Holt, 574 U.S. at 364; Cutter v. Wilkinson,

544 U.S. 709, 723 (2005). But that fact does not allow

us to accept the Air Force’s legal reasoning here. Its

47a

arguments are both overinclusive (because it relies on

general interests divorced from specific Plaintiffs) and

underinclusive (because it fails to justify exemptions for

other service members that undercut its interests in

similar ways). That type of imprecision may suffice under the rational-basis review that Goldman envisioned,

but it does not under the law that Congress enacted.

The Air Force ends its merits discussion by pointing

to RFRA’s remedies. The law gives a party the right

to seek “appropriate relief ” for a violation. 42 U.S.C.

§2000bb-1(c). The Air Force asserts that an injunction

against the military can never be “appropriate.” It is

wrong.

When a person says that something is “appropriate,”

the person conveys that it is “suitable” or “proper” for

the given situation. Tanzin, 141 S. Ct. at 491 (quoting

1 Oxford English Dictionary 586 (2d ed. 1989)). Under

this “open-ended” definition, the word’s meaning turns

on the “context” in which it is used. Id. (quoting Sossamon v. Texas, 563 U.S. 277, 286 (2011)). RFRA and

RLUIPA authorize suits to challenge the illegal conduct

of governments or their officials, so the Supreme Court

has looked to the remedies traditionally available in that

context to decide on the “suitable” relief available under

these laws. See id. at 491-92. Because courts have

long barred damages claims against a sovereign, the

Court held that RLUIPA did not permit that relief

against a state. Sossamon, 536 U.S. at 286-93. Because courts have long allowed damages claims against

officers in their personal capacities, by contrast, the

Court held that RFRA permitted that remedy against

federal officials. Tanzin, 141 S. Ct. at 491-93.

48a

This reasoning allows courts to issue injunctions

against military officials under RFRA. As a general

matter, an injunction qualifies as the most “suitable” relief against illegal government conduct. Dating “back

to England,” courts of equity have had the power to enjoin that conduct. Armstrong, 575 U.S. at 327; Ex

parte Young, 209 U.S. 123, 155-56 (1908). As a specific

matter, this power has long extended to the military.

When refusing to create a Bivens remedy against the

military for damages, the Supreme Court noted that

service members could seek the “traditional” remedy

“designed to halt” illegal conduct: an injunction. Stanley, 483 U.S. at 683. Both before and after RFRA,

then, courts have authorized such injunctions. See

Hartmann v. Stone, 68 F.3d 973, 978, 986 (6th Cir. 1995);

Townsend v. Zimmerman, 237 F.2d 376, 377-78 (6th Cir.

1956).

Other Injunction Factors

Turning to the remaining injunction factors, the Air

Force argues that the Plaintiffs have not shown an irreparable injury and that the district court failed to

properly assess its interests. These types of arguments face an uphill battle in constitutional cases because courts typically treat a showing that the government likely violated the Free Exercise Clause (or some

other right) as outcome dispositive. See Roberts v.

Neace, 958 F.3d 409, 416 (6th Cir. 2020) (per curiam).

The Supreme Court, for example, has held that the “loss

of First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury”

that cannot be adequately remedied after the fact. Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63,

67 (2020) (per curiam) (quoting Elrod v. Burns, 427 U.S.

49a

347, 373 (1976) (plurality opinion)). Because RFRA

protects the same bedrock free-exercise rights, the

same rule necessarily applies to it. See Korte v. Sebelius, 735 F.3d 654, 666 (7th Cir. 2013); Hobby Lobby, 723

F.3d at 1146.

The Air Force responds that the Plaintiffs lack an irreparable injury because a court could repair any employment-related harms through remedies like reinstatement at this lawsuit’s end. See Sampson v. Murray, 415 U.S. 61, 88-92 (1974). The Air Force’s reliance

on a case about a captain’s discharge for “drunk and disorderly conduct,” Hartikka v. United States, 754 F.2d

1516, 1517 (9th Cir. 1985), reveals a lack of sensitivity to

the foundational rights at stake. The Plaintiffs do not

complain just about the tangible loss of pay. They complain about a direct military order commanding them to

act against their faiths. This intangible injury (the coerced violation of religious beliefs) is irreparable even

when the coercion comes from such lesser forms of pressure as the threatened loss of a civilian job or the loss of

the ability to play a college sport. Dahl v. Bd. of Trs.

of W. Mich. Univ., 15 F.4th 728, 730, 736 (6th Cir. 2021)

(per curiam); see TransUnion LLC v. Ramirez, 141

S. Ct. 2190, 2204 (2021); Elrod, 427 U.S. at 373 (plurality

opinion). It is irreparable here too.

In cases concerning constitutional rights, similar

logic generally makes it unnecessary to “dwell” on the

discretionary balancing of harms or the public interest.

Roberts, 958 F.3d at 416. The government usually cannot rely on the harm from stopping its likely unconstitutional conduct. See Bays, 668 F.3d at 825. And the

people have an interest in ensuring that it follows the

Free Exercise Clause. See Dahl, 15 F.4th at 736.

50a

This analysis would again seem to extend to RFRA, a

law that the people’s representatives passed to protect

against the violation of free-exercise rights. See Korte,

735 F.3d at 666; Hobby Lobby, 723 F.3d at 1145-46 (plurality opinion).

That said, because courts have long considered the

effects on the military when engaging in this balancing,

see Winter, 555 U.S. at 24-33, RFRA likely allows us to

consider these effects when deciding whether an injunction is “appropriate,” 42 U.S.C. §2000bb-1(c); cf. Ramirez,

142 S. Ct. at 1281-83. Yet the district court properly

accounted for this military interest. Unlike an injunction that regulates the Navy’s “sonar-training program,” Winter, 555 U.S. at 12, alters a soldier’s “duty

orders,” Orloff, 345 U.S. at 94, or takes over a national

guard, Gilligan, 413 U.S. at 5, the district court did not

interfere with the Air Force’s operations, Doster, 2022

WL 982299, at *17. It merely barred the Air Force

from disciplining the Plaintiffs. Id. Because the Air

Force has not shown how its inability to punish them interferes with any operational concerns, the court did not

abuse its discretion in granting this narrow injunction.

See O Centro, 546 U.S. at 428.

III.

Injunction for the Class

This conclusion leaves the Air Force’s appeal of the

class-wide injunction. The Air Force primarily argues

that the district court should not have certified a class

action under Federal Rule of Civil Procedure 23. It asserts that the class does not satisfy Rule 23(a)’s prerequisites and that the class members’ varied interests prohibit the court from maintaining the action under Rule

23(b)(2). Alternatively, the Air Force argues that the

court again misapplied the preliminary-injunction fac-

51a

tors. Yet the court’s class-action certification adheres

to longstanding caselaw that permits this type of class

action in civil-rights cases. And the court did not abuse

its discretion in extending its narrow-in-scope injunction to the broader class.

Jurisdiction

At the outset, the Plaintiffs argue that we lack jurisdiction over the district court’s class-certification order

because the Air Force did not follow the proper procedure to appeal it. Rule 23 gives us discretion to hear

an interlocutory appeal of “an order granting or denying

class-action certification[.]”

Fed. R. Civ. P. 23(f ).

But the rule required the Air Force to file a petition

seeking our permission to appeal within 45 days. Id.

It did not. Although Rule 23(f )’s time limits do not restrict our jurisdiction, we must rigorously enforce them.

Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714-15

(2019). The Air Force thus does not rely on Rule 23(f )

here. It instead says that we may review its certification arguments based on our separate appellate jurisdiction over the district court’s class-wide injunction order.

As the Air Force notes, we have “jurisdiction of appeals from” “[i]nterlocutory orders” “granting, continuing, modifying, refusing or dissolving injunctions[.]”

28 U.S.C. § 1292(a)(1). One might read this text as limiting our review to the four corners of the injunction order. Courts, though, have never read it that way. Before Congress put this provision at its current location,

the Supreme Court had interpreted its predecessor to

permit appellate review of any issue that would create

an “insuperable objection” to an injunction, such as the

issue of whether the complaint even stated a claim.

Deckert v. Indep. Shares Corp., 311 U.S. 282, 287 (1940)

52a

(citation omitted). This reasoning comports with the

usual preliminary-injunction factors because a plaintiff

could not show the “probability of success on the merits”

required to obtain an injunction if the plaintiff would

lose on a predicate issue that would prohibit a court from

issuing it. Cf. Port Auth. Police Benevolent Ass’n, Inc.

v. Port Auth. of N.Y. & N.J., 698 F.2d 150, 152-53 (2d

Cir. 1983).

When the propriety of an injunction depends on this

type of predicate issue, then, courts have regularly reviewed that issue under 1292(a)(1). We, for example,

reviewed a district court’s order that it had personal

jurisdiction over a defendant in an appeal under

§ 1292(a)(1) because the court’s power to issue the injunction turned on that jurisdiction. See Kroger Co. v.

Malease Foods Corp., 437 F.3d 506, 510 & n.2 (6th Cir.

2006). Likewise, we reviewed a district court’s order

refusing to remand a case to state court in an appeal under § 1292(a)(1) because the remand order implicated

the court’s subject-matter jurisdiction to issue the injunction. See Kysor Indus. Corp. v. Pet, Inc., 459 F.2d

1010, 1011 (6th Cir. 1972) (per curiam); see also, e.g., Doe

v. Sundquist, 106 F.3d 702, 707-08 (6th Cir. 1997).

Other courts have reviewed a “wide variety” of similar

matters. 16 Charles A. Wright et al., Federal Practice

and Procedure § 3921.1, at 32-43 (3d ed. 2012).

Notably, many courts have relied on this principle to

review “class action determinations” under § 1292(a)(1).

Id. § 3921.1, at 37 & n.23. A class-certification order,

by itself, does not fall within that provision. Gardner

v. Westinghouse Broad. Co., 437 U.S. 478, 480-82 (1978).

Even before the Supreme Court adopted Rule 23(f ),

however, courts had recognized that they could review

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the propriety of a class-action certification when such an

issue mattered to a class-wide injunction. See, e.g.,

Paige v. California, 102 F.3d 1035, 1038-40 (9th Cir.

1996); Wagner v. Taylor, 836 F.2d 578, 584-86 (D.C. Cir.

1987); Port Auth., 698 F.2d at 152-53; Jenkins v. Blue

Cross Mut. Hosp. Ins., Inc., 522 F.2d 1235, 1237-38 (7th

Cir. 1975). And courts have continued to follow the

same approach after Rule 23(f )’s enactment. See, e.g.,

Melendres v. Arpaio, 695 F.3d 990, 996-97 (9th Cir.

2012); Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481,

492 (7th Cir. 2012).

This logic covers this case. Just as a plaintiff could

not receive an injunction if it could not obtain personal

jurisdiction, Kroger, 437 F.3d at 510, so too the Plaintiffs

could not receive a class-wide injunction if they could not

obtain class certification. The one hinges on the other.

We thus have jurisdiction under § 1292(a)(1) to review

the Air Force’s certification arguments.

Rule 23(a)

To certify a class action, a plaintiff must initially establish Rule 23(a)’s four prerequisites. The Air Force

raises only Rule 23(a)’s “commonality” and “typicality”

prerequisites here.

Commonality

A court certifying a class action must find that “there

are questions of law or fact common to the class[.]”

Fed. R. Civ. P. 23(a)(2). To explain what this factor demands, we must distinguish a legal question (what elements make a question “common”?) from an evidentiary

one (what must a plaintiff do to prove these elements?).

What elements make a question “common”?

Although written in the plural, Rule 23(a)(2) requires

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that the class identify only one common question. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011).

But not just any “common” question will do. Here, for

example, it is not enough to ask: Do all of the class

members raise RFRA claims? Id. at 349. Parties instead must identify only a certain type of question that

has only a certain type of answer. Id. at 350.

Begin with the “right” type of question: It must be

“central” to the class’s claims. Id. The question typically will affect at least one element of the claims. 1

William B. Rubenstein, Newberg and Rubenstein on

Class Actions § 3:20, at 400 (6th ed. 2022). So when a

party alleged that Ford had made a car with a defective

part, the party needed to tie this “defect” issue to the

class’s claims. See Daffin v. Ford Motor Co., 458 F.3d

549, 552 (6th Cir. 2006). And since the class asserted

breach-of-warranty claims alleging that Ford had

agreed to repair defective parts, the issue implicated the

key “breach” element. See id. In this way, the certification stage “overlaps” with the merits stage because

the question must matter to the merits. Wal-Mart, 564

U.S. at 352.

Turn to the “right” type of answer: The question

must allow a decisionmaker to reach a yes-or-no answer

for the class in “one stroke.” Id. at 350. It will fall

short if the decisionmaker could answer “yes” for some

members and “no” for others. See id. at 355-56. A famous example shows how a suit can meet this all-ornothing test. A “class” of children alleged that the racial segregation in their school district was “inherently

unequal.” Brown v. Bd. of Educ., 347 U.S. 483, 495

(1954). The segregation either did or did not violate

equal protection; the answer would not change for each

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child. 2 William B. Rubenstein, Newberg and Rubenstein on Class Actions, § 4:26, at 116-17 (6th ed. 2022);

cf. Gratz v. Bollinger, 539 U.S. 244, 267 (2003).

The typical Title VII claim, by contrast, will not meet

this test. Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 147,

157-59 (1982). Suppose an employee alleges that his

company failed to promote him because of his race and

uses this claim to certify a class alleging that the company discriminated against all employees of the same

race. Id. at 149-51. Although the question of whether

the company engaged in intentional discrimination is

central to the claims, a factfinder typically cannot decide

that question for all class members at once. Id. at 15758. One employee may not have received a promotion

because of her supervisor’s animus, but another might

not have received it because of his lack of qualifications,

and so on. Id. An allegation that one employee suffered one discriminatory act does not provide the “glue”

that permits a single answer “to the crucial question” of

why each employee did not get promoted. Wal-Mart,

564 U.S. at 351.

What can provide the glue? An employee might allege that the company engaged in a “common course of

conduct” or had a “common unlawful policy” that affected the class. 7A Charles A. Wright et al., Federal

Practice and Procedure § 1763.1, at 290 (4th ed. 2021).

Just as the board of education in Brown had an explicit

segregation policy, the company might have an explicit

“testing procedure” alleged to be discriminatory. Falcon, 457 U.S. at 159 n.15. Or it might follow a “pattern

or practice” of discrimination as its “standard operating

procedure.” Cooper v. Fed. Rsrv. Bank of Richmond,

467 U.S. 867, 876 (1984) (citation omitted). A factfinder

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could decide whether the employer has this illegal procedure or practice with a yes-or-no answer for the class.

Indeed, pattern-or-practice class actions have a long

history for Title VII claims. See id.; see also Chi.

Tchrs. Union, Loc. No. 1 v. Bd. of Educ. of City of Chi.,

797 F.3d 426, 441-42 (7th Cir. 2015); Brown v. Nucor

Corp., 785 F.3d 895, 902-17 (4th Cir. 2015).

Courts have applied the same rules beyond Title VII

cases. To list a few examples, the Supreme Court

found that a common question existed when applicants

alleged that a university had a policy of considering race

in college admissions in violation of the Equal Protection

Clause. Gratz, 539 U.S. at 263-68. Similarly, the

Eighth Circuit held that a common question existed

when prisoners with Hepatitis C alleged that officials

had a policy of denying them medications in violation of

the Eighth Amendment. Postawko v

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