US Court of Appeals upholds Air Force COVID-19 vaccine injunction
Dayton Daily News December 1, 2022
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(Tribune News Service) — The U.S. Sixth Circuit Court of Appeals Tuesday unanimously upheld a class wide injunction that protects Air Force personnel who have declined an Air Force order to get the COVID-19 vaccine for religious reasons from discipline or removal from the Air Force.
The plaintiffs involved in the case argue the mandate violates their religious freedom under the First Amendment and the Religious Freedom Restoration Act of 1993.
In the order for "Hunter Doster, et al. v. Hon Frank Kendall, et al.", the Sixth Circuit affirmed a lower court's order denying the federal government's appeal to require a class of Air Force members to obtain COVID-19 vaccines.
Doster is an Air Force first lieutenant working for the Air Force Research Laboratory at Wright-Patterson Air Force Base, according to his LinkedIn page. Attorneys have told this newspaper that some 80 to 100 Airmen at Wright-Patterson are involved in the case.
The same appeals court in September denied an Air Force emergency motion to stay the class certification and a July injunction granted by Cincinnati federal district Judge Matthew McFarland.
McFarland at the time ordered the Air Force to refrain from disciplinary or separation measures against a class of what plaintiffs' advocates say are 10,000 unvaccinated service members.
Plaintiffs say the Air Force granted about 135 of 10,000 requests for vaccine exemptions for religious reasons — and then only to those planning to leave the service.
"The Air Force even agreed that it has not granted any religious exemptions to anyone who does not plan to leave the service within a year," the Liberty Counsel said in a statement Wednesday. "On the other hand, 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."
Liberty Counsel is a non-profit organization that litigates in cases the organization believes involve religious freedom.
Eighteen plaintiffs, some on active duty and others in the Reserve, sued Air Force Secretary Frank Kendall and others in February 2022.
"All administrative exemptions/religious accommodation requests are evaluated on their own merit and the decision authority must consider the compelling government interest in mission accomplishment, which includes military readiness, unit cohesion, and the health and safety of both the member and the unit," Rose Riley, an Air Force spokeswoman, said in an email Wednesday. "Requests are denied where receiving the COVID-19 vaccination is determined the least restrictive means."
Riley said the December 2021 COVID statistics offered by Liberty Counsel roughly match what the Air Force published during that timeframe.
"The Department of the Air Force is complying with a court order to pause all disciplinary and adverse actions for members refusing the COVID-19 vaccine who submitted a timely religious accommodation request and fall within the definition of the court's certified class," Riley added.
Service leaders have said vaccinations are an important part of fitness and military readiness.
A December 2021 memo from the Air Force directs commanders to take "appropriate administrative and disciplinary actions consistent with federal law and Department of the Air Force … policy in addressing service members who refuse to obey a lawful order to receive the COVID-19 vaccine and do not have a pending separation or retirement, or medical, religious or administrative exemption."
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