Roth v. Austin

Full title: Tanner W. ROTH; Jon W. Smithley; Logan M. Priebe; Victoria S. Roberts…

Court: United States District Court, D. Nebraska

Date published: Aug 5, 2022

619 F. Supp. 3d 928 (D. Neb. 2022)

Opinion

8:22CV3038

2022-08-05

Tanner W. ROTH; Jon W. Smithley; Logan M. Priebe; Victoria S. Roberts; Timothy C. Bexten; Zachary R. Braum; Armand G. Fondren II; Nathan P. Gavic; Brennan L. Barlow; Michael T. Edwards; Matthew J. Cascarino; Matthew C. Downing; Kevin Dunbar; Cameron M. Grim; Aaron F. Karpisek; Ian C. McGee; Evan McMillan; Zachary Morley; Matthew L. Nelson; Bryan Stigall; Kynan Valencia; Morgan T. Viar; Daniel Vera Ponce; Adam R. Cassidy; Tristan M. Fries; and Airmen 1-11, Plaintiffs, v. Lloyd J. AUSTIN III, in his official capacity as United States Secretary of Defense; United States Department of Defense; Frank Kendall III, in his official capacity as United States Secretary of the Air Force; Robert I. Miller, in his official capacity as Surgeon General of the united States Air Force; Michael A. Loh, in his official capacity as the Director of the Air National Guard; David A. Weishaar, in his official capacity as Adjutant General of the Kansas National Guard; and Daryl L. Bohac, in his official capacity as Adjutant General of the Nebraska National Guard, Defendants.

Craig W. Trainor, Pro Hac Vice, Jessica Elizabeth Hart Steinmann, Pro Hac Vice, Pamela Jo Bondi, Pro Hac Vice, Rachel L. Jag, Pro Hac Vice, America First Policy Institute, Washington, DC, Kris W. Kobach, Kobach Law Firm, Lecompton, KS, for Plaintiffs Tanner W. Roth, Jon W. Smithley, Logan M. Priebe, Victoria S. Roberts, Timothy C. Bexten, Zachary R. Braum, Armand G. Fondren, Nathan P. Gavic, Michael T. Edwards, Matthew J. Cascarino, Matthew C. Downing, Kevin Dunbar, Cameron M. Grim, Aaron F. Karpisek, Ian C. McGee, Evan McMillan, Zachary Morley, Matthew L. Nelson, Bryan Stigall, Kynan Valencia, Morgan T. Viar, Daniel Vera Ponce, Adam R. Cassidy, Tristan M. Fries, Airmen 1-11. Craig W. Trainor, Pro Hac Vice, Jessica Elizabeth Hart Steinmann, Pro Hac Vice, Pamela Jo Bondi, Pro Hac Vice, Rachel L. Jag, Pro Hac Vice, America First Policy Institute, Washington, DC, Kris W. Kobach, Kobach Law Firm, Lecompton, KS, for Plaintiff Brennan L. Barlow. Johnny H. Walker, III, Department of Justice - Civil, Washington, DC, Lynnett M. Wagner, Timothy R. Hook, U.S. Attorney's Office, Omaha, NE, Stuart Robinson, Department of Justice, San Francisco, CA, for Defendants.

Brian C. Buescher, United States District Judge

Craig W. Trainor, Pro Hac Vice, Jessica Elizabeth Hart Steinmann, Pro Hac Vice, Pamela Jo Bondi, Pro Hac Vice, Rachel L. Jag, Pro Hac Vice, America First Policy Institute, Washington, DC, Kris W. Kobach, Kobach Law Firm, Lecompton, KS, for Plaintiffs Tanner W. Roth, Jon W. Smithley, Logan M. Priebe, Victoria S. Roberts, Timothy C. Bexten, Zachary R. Braum, Armand G. Fondren, Nathan P. Gavic, Michael T. Edwards, Matthew J. Cascarino, Matthew C. Downing, Kevin Dunbar, Cameron M. Grim, Aaron F. Karpisek, Ian C. McGee, Evan McMillan, Zachary Morley, Matthew L. Nelson, Bryan Stigall, Kynan Valencia, Morgan T. Viar, Daniel Vera Ponce, Adam R. Cassidy, Tristan M. Fries, Airmen 1-11. Craig W. Trainor, Pro Hac Vice, Jessica Elizabeth Hart Steinmann, Pro Hac Vice, Pamela Jo Bondi, Pro Hac Vice, Rachel L. Jag, Pro Hac Vice, America First Policy Institute, Washington, DC, Kris W. Kobach, Kobach Law Firm, Lecompton, KS, for Plaintiff Brennan L. Barlow. Johnny H. Walker, III, Department of Justice - Civil, Washington, DC, Lynnett M. Wagner, Timothy R. Hook, U.S. Attorney's Office, Omaha, NE, Stuart Robinson, Department of Justice, San Francisco, CA, for Defendants.

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS AND MOTION TO SEVER

Brian C. Buescher, United States District Judge

In this case, thirty-six members of the United States Air Force (active duty), United States Air Force Reserve, or the Air National Guard have filed suit objecting to the requirement originating from the President of the United States, as adopted by the United States Air Force, that all Air Force Personnel be vaccinated for the COVID-19 virus. Plaintiffs claim that forcing them to receive the available COVID-19 vaccines violates their rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., and the Free Exercise of Religion Clause of the First Amendment to the United States Constitution. This case is now before the Court on Defendants' April 15, 2022, Motion to Dismiss and Motion to Sever. Filing 37. The Defendants' Motion is granted in part and denied in part.

I. INTRODUCTION

A. Synopsis

Defendants seek the following relief in their Motion: (1) dismissal of the entire suit because the Plaintiffs' claims are either not ripe or not justiciable (or both) at this time; (2) severance of each Plaintiff's claims from the others' claims because they neither arise out of the same transaction or occurrence nor share common questions of law or fact; (3) dismissal of the severed claims of the sixteen Plaintiffs who do not reside in the District of Nebraska and whose claims did not arise in the District of Nebraska but without prejudice to those Plaintiffs refiling their claims in a proper venue; and (4) dismissal of David A. Weishaar, the Adjutant General of the Kansas National Guard, and Daryl Bohac, the Adjutant General of the Nebraska National Guard, as improperly named parties. Filing 41 at 2-3. The issues presented in Defendants' Motion are multifaceted, as they involve requests for several kinds of relief, and some relief requested is expressly contingent upon other relief being granted. A brief summary of the Court's conclusions is as follows.

First, the Court finds it helpful to clarify whether Plaintiffs' challenges to the Air Force's COVID-19 vaccination mandate under the Free Exercise Clause and the RFRA are "facial" or "as-applied." Bucklew v. Precythe, — U.S. —, 139 S. Ct. 1112, 1126, 203 L.Ed.2d 521 (2019) (identifying the two kinds of challenges). "The important inquiry [to determine the nature of the challenge] is whether the 'claim and the relief that would follow . . . reach beyond the particular circumstances of these plaintiffs.' " Free the Nipple - Springfield Residents Promoting Equal. v. City of Springfield, 923 F.3d 508, 509 n.2 (8th Cir. 2019) (quoting Doe v. Reed, 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010)). Where plaintiffs seek a declaration that the entire policy is unconstitutional, that claim "reaches beyond the particular circumstances of th[o]se plaintiffs," and the "claim is facial." Id. In contrast, a party who raises an as-applied constitutional challenge to a policy or law must show that the policy or law as applied in the particular circumstances of his case infringed on conduct that was constitutionally protected. Broadrick v. Oklahoma, 413 U.S. 601, 610-11, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). "If an as-applied challenge is successful, the statute [or policy] may not be applied to the challenger, but [it] is otherwise enforceable." Phelps-Roper v. Ricketts, 867 F.3d 883, 896 (8th Cir. 2017). The Court concludes that Plaintiffs are attempting to state both facial and as-applied challenges under the Free Exercise Clause and the RFRA because they seek relief on their own behalf and on behalf of any servicemembers who have sought a religious exemption to the COVID-19 vaccination mandate. See, e.g., Filing 1 at 3 (¶ 12); Filing 1 at 53 (Prayer).

Turning to jurisdictional questions, the Eighth Circuit Court of Appeals articulated the controlling standard for determining whether claims by servicemembers against the military or their commanders are justiciable in Watson v. Arkansas National Guard, 886 F.2d 1004 (8th Cir. 1989). Watson draws a relatively bright line between servicemembers' claims against the military that are justiciable and those that are not. "[S]uits involving facial constitutional challenges to military regulations or statutes" are justiciable, because the constitutionality of a regulation or statute of general applicability requires a legal analysis, which courts are "uniquely" qualified to perform. Id. at 1010. The Court concludes the same would be true of a facial RFRA challenge. In contrast, claims for "judicial review of discrete military personnel decisions" are not justiciable, because they involve "a fact-specific inquiry into an area affecting military order and discipline and implicating all the concerns" behind judicial deference to military decision-making. Id. Review of a "discrete military personnel decision" is precisely what a court must undertake on an as-applied challenge to validity of a policy or regulation. See Broadrick, 413 U.S. at 610-11, 93 S.Ct. 2908.

Plaintiffs' facial challenges to the Air Force's COVID-19 vaccination mandate under the Free Exercise Clause and the RFRA are justiciable because that policy is one of general applicability—in that the policy applies to all members of the Air Force, Air Force Reserve, and Air National Guard—and determining its facial constitutionality requires a legal analysis, which courts are "uniquely" qualified to perform. Watson, 886 F.2d at 1010. On the other hand, as-applied challenges under the Free Exercise Clause and the RFRA are not justiciable. The Watson decision recognized that judicial review of a discrete military personnel decision—such as individualized application of a policy to a particular servicemember—"involves a fact-specific inquiry into an area affecting military order and discipline and implicating all the concerns on which [cases deferring to the military] are premised." Watson, 886 F.2d at 1010. Thus, claims involving such discrete military personnel decisions are not justiciable.

Whether a challenge to a policy or law is classified as facial or as-applied "affects the extent to which the invalidity of the challenged law must be demonstrated," Bucklew, 139 S. Ct. at 1127, so it also affects what evidence is relevant. On a facial challenge, the Court does not look at application of the policy at all, let alone application of the policy to any particular Plaintiff or Plaintiffs. Rather, the Court looks at the evidence of the interest supporting adoption of the policy, the requirements of the policy, and the stated consequences of violating the policy.

In the context of a Free Exercise Clause facial challenge, the relevant evidence includes whether the policy burdens religious practices, whether the policy is "neutral" or "generally applicable," and if neither, whether the policy is justified by a compelling state interest and is narrowly tailored in pursuit of that interest. Kennedy v. Bremerton Sch. Dist., — U.S. —, 142 S. Ct. 2407, 2421-22, 213 L.Ed.2d 755 (2022). It is true that a RFRA claim requires consideration of whether application of the burden on religion "to the person" is in furtherance of a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694-95, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). Nevertheless, the relevant evidence is whether the policy requires the individualized determination imposed by the RFRA. See Filing 78 at 28 (citing Burwell, 573 U.S. at 695, 134 S.Ct. 2751). A facial challenge under either the Free Exercise Clause or the RFRA does not require examination of the application of the policy to any particular Plaintiff, so there is no reason to look beyond the COVID-19 vaccination mandate's requirement of discharge for noncompliance or to look at the administrative proceedings used to accomplish the discharge after the Air Force Surgeon General's denial of a Religious Accommodation Request (RAR) appeal.

Plaintiffs' as-applied challenges under the Free Exercise Clause and the RFRA are not "ripe" even if they are somehow otherwise "justiciable." Such challenges are dependent "on contingent future events that may not occur as anticipated, or indeed may not occur at all." Trump v. New York, — U.S. —, 141 S. Ct. 530, 535, 208 L.Ed.2d 365 (2020) (internal quotation marks and citations omitted). The application of the COVID-19 vaccination mandate to individual servicemembers needs further factual development through administrative proceedings, as the result is uncertain and speculative before conclusion of the disciplinary process. Plaintiffs still have opportunities to challenge the constitutionality and the legality under RFRA of application of the COVID-19 vaccination mandate to each of them in administrative proceedings that have not been completed as to any of them. See Horn v. Schlesinger, 514 F.2d 549, 553 (8th Cir. 1975).

The fact that the RFRA does not contain an exhaustion requirement does not answer the question of whether Watson should be understood to impose an administrative exhaustion requirement on as-applied challenges to military policies or regulations under the RFRA, which necessarily address "discrete military personnel decisions." Cf. Short v. Berger, No. CV-22-00444-PHX-DJH, 599 F.Supp.3d 844, 857-58 (D. Ariz. Apr. 22, 2022) (framing the issue the same way as to the Mindes test). In other words, the question of whether administrative exhaustion is required does not turn on statutory interpretation of the RFRA, but on the prudential concerns of interference with military decision-making addressed in Watson. In Watson, the court held that Watson's claim for relief from "discrete military personnel decisions"—exactly the kind of decisions at issue in an as-applied challenge under the RFRA—were not justiciable, because Watson was "not left without any recourse," where he had access to administrative remedies. Id. This Court is persuaded that Watson requires administrative exhaustion of as-applied challenges to the Air Force's COVID-19 vaccination mandate under the RFRA, even if the RFRA does not itself impose such a requirement.

Thus, Defendants' Motion to Dismiss is granted as to Plaintiffs' as-applied challenges under the Free Exercise Clause and the RFRA, but it is denied as to facial challenges.

Defendants' Motion to Sever is denied. Plaintiffs' claims arose out of the same transaction, occurrence, or series of transactions or occurrences because each of the thirty-six Plaintiffs alleges that he or she has been injured by the same general religiously discriminatory COVID-19 vaccination mandate. Cf. Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). In this case there are also undoubtedly common questions of law and fact related to the validity or constitutionality of the COVID-19 vaccination policy, including whether the Air Force has a compelling interest and whether the Air Force's policy is the least restrictive means of furthering that compelling interest. See In re Prempro Prod. Liab. Litig., 591 F.3d 613, 622 (8th Cir. 2010).

Defendants' argument for dismissal of sixteen Plaintiffs' claims for improper venue was entirely contingent on the Court severing the individual Plaintiffs' claims, but the Court has not done so. Defendants concede venue remains proper in this forum because at least one Plaintiff resides here. See Filing 41 at 34. Thus, the part of Defendants' Motion seeking dismissal of the claims of sixteen Plaintiffs for improper venue is denied.

As to the last issue raised in Defendants' Motion, the Court concludes that Plaintiffs' claims against Defendants David A. Weishaar, the Adjutant General of the Kansas National Guard, and Daryl Bohac, the Adjutant General of the Nebraska National Guard, are not brought against proper parties to this action as it now stands. The Air National Guard Adjutant Generals have the exclusive authority to discharge National Guard members, but such discharge is outside the scope of the remaining facial challenges. What is inside the scope of the remaining facial challenges is the Secretary of the Air Force's authority to determine "readiness" of National Guard members for federal service. Thus, those Adjutant Generals are dismissed from this action.

For these and other reasons set out more fully below, Defendants' Motion is granted in part and denied in part.

B. Factual Background

In its ruling on Plaintiffs' request for a preliminary injunction, the Court set out in substantial detail facts related to the Air Force's COVID-19 vaccination mandate, the process for reviewing requests for religious exemptions to that mandate (called Religious Accommodation Requests or RARs), and the disciplinary process for servicemembers who failed to comply with the mandate. Filing 78 at 5-15.¹ Those facts were drawn from factual allegations in Plaintiffs' Complaint and evidence presented at the preliminary injunction hearing. The Court will not repeat all that factual background here but only as much as the Court finds necessary to provide proper context for its disposition of Defendants' Motion to Dismiss and Motion to Sever. The Court will add some additional information about the status of the Plaintiffs that was not included in its prior ruling. The facts set out here are drawn from evidence in the record, including evidence submitted by Defendants in support of their Motion and by Plaintiffs in their Response.²

1 Roth v. Austin, No. 8:22CV3038, 603 F.Supp.3d 741, 747-55 (D. Neb. May 18, 2022).

2 On a factual challenge to subject matter jurisdiction, like the one Defendants mount here, "[t]he plaintiff bears 'the burden of proving the existence of subject matter jurisdiction,' and [the court] may look at materials 'outside the pleadings' " when determining whether it has jurisdiction. Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019) (quoting Herden v. United States, 726 F.3d 1042, 1046 (8th Cir. 2013) (en banc)). The Court notes that, unless otherwise indicated, Plaintiffs have not challenged Defendants' statement of any of the facts the Court will set out in this section.

1. The Mandate and the RAR Review Process

On September 3, 2021, Defendant Frank Kendall III, the Secretary of the Air Force, issued a Memorandum directing that, "[u]nless exempted, Active Duty Airmen and Guardians will be fully vaccinated [with a COVID-19 vaccine] by 2 November 2021." Filing 1-1 at 5. He also stated that "[u]nless exempted, Ready Reserve, to include National Guard, Airmen and Guardians will be fully vaccinated by 2 December 2021." Filing 1-1 at 5. As with other vaccine requirements, Air Force guidance establishes processes for seeking medical, administrative, and religious exemptions. Filing 38-3; Filing 38-12.

a. Initial Review of RARs

A service member may make an RAR from an immunization requirement by submitting a written request, addressed to the approval authority, to his or her unit commander. Filing 38-12 at 2. Each request is reviewed individually by both the initial approval authority and the appellate authority, if applicable. Filing 38-12 at 2. Each RAR is reviewed to determine (1) if there is a sincerely held religious (as opposed to moral or conscience) belief, (2) if the vaccination requirement substantially burdens the applicant's religious exercise based upon a sincerely held religious belief, and if so, (3) whether there is a compelling government interest in requiring that specific requestor to be vaccinated, and (4) whether there are less restrictive means in furthering that compelling government interest. Filing 38-12 at 2-3.

Each RAR is reviewed by the unit commander and endorsed with a recommendation to approve or disapprove the request. Filing 38-12 at 3-4. It is also reviewed by a Religious Resolution Team (RRT), which also provides a recommendation, including dissenting views, and it receives a separate written legal review. Filing 38-12 at 5-6. Similarly, each commander in the chain of command provides an endorsement with a recommendation to approve or disapprove the request. Filing 38-12 at 6. As the packet is routed through the chain of command, it is also reviewed by an RRT at the final approval authority level. Filing 38-12 at 6. The "approval authority" for an RAR from an immunization is the Major Command (MAJCOM), Field Command (FIELDCOM), Direct Reporting Unit (DRU), or Field Operating Agency (FOA) commander over the service member. Filing 38-12 at 2. If the RAR is approved, it is included in the servicemember's electronic personnel record. Filing 38-12 at 7. If the RAR is denied by the approval authority, the service member must choose between (1) getting the vaccine; (2) appealing the denial (or requesting a second opinion for a medical exemption), but if denied again, getting the vaccine; or (3) leaving the Air Force. Filing 1-1 at 8-9.

b. Appeal Level Review

If an RAR is disapproved by the approval authority, the servicemember may appeal to the final appeal authority, which is the Air Force Surgeon General. Filing 38-12 at 7-8. The Air Force Surgeon General reviews each package individually, is advised by another RRT, and renders a final decision on the request using the same criteria considered in the initial review. Filing 38-12. The denial of an appeal is the end of the RAR process. It is not the end of the administrative process for a servicemember whose RAR is denied, however.

2. The Disciplinary Process

No administrative or disciplinary action is to be taken against a servicemember for failure to comply with the vaccination mandate during the exemption approval process and any appeal. Filing 38-12 at 7. However, if a regular servicemember whose RAR appeal is denied refuses to obey a lawful order to receive the COVID-19 vaccination, that servicemember is subject to initiation of the administrative discharge process. Filing 1-1 at 9; Filing 38-4 at 4. Although there are some differences depending on the rank of the servicemembers, the process starts with a notification from the servicemember's immediate commander of a recommendation for administrative discharge. Filing 38-4 at 4. That recommendation goes to a separation authority, often the senior commander in the unit, but depending on the characterization of the service separation, the decision may move to a higher level and a formal administrative hearing may be required. Filing 38-4 at 4.

Air Force Reserve members may be disciplined, first, with a letter of reprimand, and eventually may be placed in a "no pay/no points" status and involuntarily reassigned to the Individual Ready Reserve (IRR). Filing 38-4 at 5. Active Guard and Reserve (AGR) members who refuse to comply with the COVID-19 vaccination mandate without an exemption have their tour curtailed and are involuntarily reassigned to the IRR. Filing 38-4 at 5; Filing 1-1 at 10. Similarly, "[i]mmediately following notification of final adjudication, [Air National Guard (ANG)] members must comply with the vaccination requirement. Those with a remaining Military Service Obligation who continue to refuse vaccination, will be involuntarily assigned to the IRR." Filing 1-1 at 13. The Defendants assert that reassignment to the IRR is not a discharge or separation and that there is currently no policy mandating administrative separation for any service members placed in that status. See Filing 38-4 at 5. Plaintiffs assert that IRR status is de facto discharge. Filing 77 at 9.

The parties also dispute the extent to which these disciplinary proceedings allow any further challenge to disapproval of servicemembers' RARs. Plaintiffs contend that, once the final appeal of the RAR is denied, they have no ability to appeal further the rejection of their RARs, and they are in the pipeline for discharge and/or punishment. Filing 77 at 10. Defendants contend that anyone subject to discipline may challenge the lawfulness of the vaccine requirement in the disciplinary proceedings leading to discharge. Filing 41 at 21.

3. The Current Status of the Plaintiffs

As of the filing of their Complaint, eighteen Plaintiffs were stationed at Offutt Air Force Base (AFB) in Bellevue, Nebraska. Filing 1 at 8 (¶ 30), 11-15 (¶¶ 36-44), 16-18 (¶¶ 48-50), 19 (¶ 53), 19-20 (¶ 54), 20-21 (¶¶ 56-57), 22 (¶ 60). One was stationed at Lincoln Air National Guard Base in Lincoln, Nebraska. Filing 1 at 21-22 (¶ 58). One was a Nebraska Air National Guard member stationed either at Offutt AFB or Lincoln Air National Guard Base. Filing 1 at 16 (¶ 46). Eleven were stationed at McConnell AFB in Wichita, Kansas. Filing 1 at 7-8 (¶¶ 28-29), 9 (¶ 31), 9-10 (¶ 32), 11 (¶ 35), 15 (¶ 45), 16 (¶ 47), 18-19 (¶ 51), 20 (¶ 55), 22 (¶ 59), 22-23 (¶ 61). Two were stationed at Randolph AFB in Universal City, Texas. Filing 1 at 6 (¶ 26), 10-11 (¶ 34). One was stationed at Marine Corp Ground Installation in Quantico, Virginia. Filing 1 at 6-7 (¶ 27). One was stationed at Columbus AFB in Mississippi. Filing 1 at 10 (¶ 33). One was stationed at Davis-Monthan AFB in Tucson, Arizona. Filing 1 at 19 (¶ 52).

Plaintiffs' assignments are varied. They include Pilots, Chaplain, Clinical Nurse, Combat Crew Communications Technician, Aircraft Maintenance Apprentice, Intelligence Squadron Superintendent, Maintenance Squadron Commander, Cyber Operations Officer, Cyberware Operator, Airborne Cryptologic Language Analyst, Electronic Warfare Officer, Intelligence Branch Chief, and Intelligence Officer. Filing 1 at 6-23 (¶¶ 26-61).

At the time Defendants filed their Motion, eighteen Plaintiffs had completed the RAR appeal process, but the other eighteen had not. Filing 41 at 16-17. Of the eighteen who had completed the RAR appeal process, seven had not yet received a final administrative determination on separation, and eleven were not going to be separated but were to be reassigned to IRR. Filing 41 at 17 and n.9. By the time Plaintiffs filed their Response, two more Plaintiffs had received denials of their RAR appeals, so twenty were then in that situation. Filing 77 at 8. Also, by that time, five more Plaintiffs had received denials of their initial RAR requests and had RAR appeals pending, leaving eleven with RARs pending initial decision by the approval authority. Filing 77 at 8. Four Air Force Reserve members whose RAR appeals had been denied had been transferred to "no pay/no points" status but had not been placed in IRR status. Filing 77 at 8-9. One other Plaintiff whose RAR appeal had been denied had been served with Article 15 charges which places him on a path to court martial. Filing 77 at 10 (citing Filing 63-1). Plaintiffs also assert numerous Plaintiffs have received Letters of Reprimand and/or Letters of Counseling, as part of the disciplinary process after denial of their RAR appeals, but Plaintiffs do not identify who or precisely how many Plaintiffs had received such disciplinary letters. Filing 77 at 10.

C. Procedural Background

Plaintiffs filed their Complaint in this action on March 8, 2022. As noted at the outset of this decision, they assert claims of violations of their rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., Filing 1 at 41-46 (¶¶ 161-196), and the Free Exercise of Religion Clause of the First Amendment to the United States Constitution. Filing 1 at 46-53 (¶¶ 197-239).

1. Plaintiffs' Claims

More specifically, Plaintiffs' RFRA claim alleges, "Defendants' Vaccine Mandates substantially burden Plaintiffs' sincerely held religious beliefs by requiring them to take an action—receiving a COVID-19 vaccine—that would violate those religious beliefs or to suffer adverse employment action, financial harm, and potential physical harm," and that this mandate is not the least restrictive means of furthering a compelling interest of the Air Force. Filing 1 at 42 (¶ 171), 43-44 (¶¶ 176-181), 44-45 (¶¶ 185-187). Plaintiffs allege, "The adverse actions to which plaintiffs are subject may include: involuntary discharge, court-martial (criminal) prosecution, involuntary separation, relief for cause from leadership position, removal from promotion lists, inability to attend certain military training and education schools, loss of special pay, placement in a non-deployable status, recoupment of money spent training the service member, and loss of leave and travel privileges for both official and unofficial purposes." Filing 1 at 42 (¶ 174). Plaintiffs further allege that they "have already suffered and continue to suffer adverse employment actions merely for requesting relief that is protected by RFRA. The adverse employment actions that have already been taken against Plaintiffs include: denial of opportunities to attend military training schools, loss of leadership positions, placement in non-deployable status, and loss of leave and travel privileges for both official and unofficial purposes." Filing 1 at 43 (¶ 175). They allege, "Defendants do not have a compelling government interest in refusing to grant religious exemptions and requiring Plaintiffs to violate their sincerely held religious beliefs by taking a COVID-19 vaccine." Filing 1 at 43 (¶ 176). Thus, they allege that "Defendants' Vaccine Mandates violate Plaintiffs' rights under RFRA." Filing 1 at 46 (¶ 194).

Plaintiffs' claim of a Free Exercise Clause violation begins with a similar allegation that "Defendants' Vaccine Mandate substantially burdens Plaintiffs' sincerely held religious beliefs by requiring them to take an action—receiving a COVID-19 vaccine—that would violate those religious beliefs or to suffer adverse employment action and financial harm." Filing 1 at 47 (¶ 203). Plaintiffs' allegation of injuries they have already suffered is also essentially the same. Compare Filing 1 at 42 (¶ 174), with Filing 1 at 47 (¶ 204). Thereafter, Plaintiffs' allegations supporting the Free Exercise Clause claim differ somewhat from the allegations supporting the RFRA claim. Plaintiffs allege that the COVID-19 vaccination mandate "is plainly not neutral and not generally applicable," because it prohibits religious conduct while permitting secular conduct, that is, permitting exemptions for clinical trials, administrative reasons, and medical reasons, but not permitting religious exemptions. Filing 1 at 48 (¶¶ 205-211). They further allege that the COVID-19 vaccination mandate fails strict scrutiny, because the Air Force does not "have a compelling interest in not granting religious accommodation requests to Plaintiffs." Filing 1 at 49 (¶ 216); see also Filing 1 at 49-50 (¶¶ 215-222). Moreover, they allege that the Air Force has less restrictive means of accomplishing its purported interest, including masking, remote teleworking, physical distancing, and regular testing. Filing 1 at 50 (¶¶ 223-226). Thus, they allege, "Because Defendants' refusal to grant religious exemptions to the DoD Vaccine Mandate is not supported by a compelling interest, and is not the least restrictive means available, Defendants' implementation of the DoD Vaccine Mandate violates Plaintiffs' right to the free exercise of religion under the First Amendment." Filing 1 at 52 (¶ 237).

Plaintiffs seek declaratory and injunctive relief. Filing 1 at 53-54 (Prayer). They seek declarations that the challenged vaccination policy violates their rights under the RFRA and the First Amendment to the United States Constitution and that the Air Forces' COVID-19 vaccine mandate is unlawful and is set aside. Filing 1 at 53 (Prayer, ¶¶ A, B, D). They seek a permanent injunction prohibiting Defendants from enforcing the COVID-19 vaccination policies against any servicemember who has filed an RAR; compelling Defendants to restore the training and other career opportunities that Plaintiffs have been denied as a result of filing RARs; and prohibiting Defendants from denying travel, training, and other career opportunities to any servicemembers who filed or received RARs. Filing 1 at 53 (Prayer, ¶¶ C, E, F). They also seek reasonable attorneys' fees, costs, and other disbursements in this action pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 2412, and all other and further relief to which they are entitled. Filing 1 at 54 (Prayer, ¶¶ G, H).

2. Plaintiffs' Motion for Preliminary Injunction

On March 18, 2022, Plaintiffs filed a Motion for Preliminary Injunction, Filing 20, asking the Court to enjoin Defendants from taking steps to discharge, or to deny travel, training, or career opportunities to any servicemember who has filed or received an RAR, and to restore such opportunities to Plaintiffs. Filing 21 at 44-45. Defendants filed their Brief in Opposition on April 15, 2022. Filing 42. Plaintiffs filed their Reply in support of their Motion for Preliminary Injunction on April 26, 2022. Filing 48. The Court held an evidentiary hearing on Plaintiffs' Motion for Preliminary Injunction on May 9, 2022. Filing 59 (minutes). On May 18, 2022, the Court filed its Memorandum and Order Regarding Plaintiffs' Motion for Preliminary Injunction. Filing 78. The Court denied Plaintiffs' request for a preliminary injunction enjoining application of the Air Force's COVID-19 vaccination mandate to service members because the Court concluded Plaintiffs lacked the required "likelihood of success" on their claims. Filing 78 at 61.³

3 See Roth v. Austin, No. 8:22CV3038, 603 F.Supp.3d 741, 783 (D. Neb. May 18, 2022).

On May 19, 2022, the day after the Court ruled on their Motion for Preliminary Injunction, the Plaintiffs filed an appeal of that ruling. Filing 79. However, that appeal did not deprive this Court of jurisdiction over the pending Motion to Dismiss and Motion to Sever. See W. Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1229 (8th Cir. 1986) ("[T]he pendency of an interlocutory appeal from an order granting or denying a preliminary injunction does not wholly divest the District Court of jurisdiction over the entire case.").

3. Defendants' Motion to Dismiss and Sever

On April 15, 2022, the same day Defendants filed their Opposition to Plaintiffs' Motion for Preliminary Injunction, Defendants also filed the Motion to Dismiss and Motion to Sever now before the Court. Filing 37. Defendants incorporated by reference into their Brief in Opposition to Plaintiffs' Motion for a Preliminary Injunction some of their grounds for dismissal, including failure to exhaust administrative remedies, lack of ripe claims, and consequent nonjusticiability of Plaintiffs' claims. Filing 42 at 20 n.5, 23 n.7, 28. The Court declined to reach those issues in its ruling on Plaintiffs' Motion for Preliminary Injunction, however, because Defendants' Motion to Dismiss and Motion to Sever would not be fully briefed until June 1, 2022. Filing 78 at 16. The Court will reach such issues in this ruling to the extent they are dispositive of the present Motion. On May 17, 2022, the day before the Court ruled on Plaintiffs' Motion for Preliminary Injunction, Plaintiffs filed their Brief in Response to Defendants' Motion to Dismiss. Filing 77. On June 1, 2022, Defendants filed their Reply Brief in Support of Motion to Dismiss and Motion to Sever. Filing 86.

Defendants' Motion to Dismiss and Motion to Sever is multifaceted, as it involves requests for several kinds of relief, and some of the relief requested is expressly contingent upon other relief being granted. The Court will address the various parts of Defendants' Motion in turn.

II. "FACIAL" OR "AS-APPLIED" CHALLENGES?

Before considering the various issues raised in Defendants' Motion, the Court finds it would be useful to clarify the nature of Plaintiffs' constitutional and RFRA challenges to the Air Force's COVID-19 vaccination mandate. Challenges to the validity of a policy or law may be either "facial" or "as-applied." See, e.g., Bucklew v. Precythe, — U.S. —, 139 S. Ct. 1112, 1127, 203 L.Ed.2d 521 (2019). As explained in Section III below, in the context of a military policy or regulation, whether Plaintiffs' Free Exercise and RFRA challenges are facial or as-applied is also determinative of the justiciability and ripeness of those challenges.

A. The Substantive Rules of Law

"[C]lassifying a lawsuit as facial or as-applied . . . does not speak at all to the substantive rule of law necessary to establish a constitutional violation." Id. Therefore, this Court will summarize briefly the substantive rules of law that apply to Plaintiffs' Free Exercise and RFRA claims before considering whether the claims are facial or as-applied challenges.

As the Supreme Court recently explained,

The Free Exercise Clause provides that "Congress shall make no law . . . prohibiting the free exercise" of religion. Amdt. 1 . . . . The Clause protects not only the right to harbor religious beliefs inwardly and secretly. It does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through "the performance of (or abstention from) physical acts." Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

Under this Court's precedents, a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government

entity has burdened his sincere religious practice pursuant to a policy that is not "neutral" or "generally applicable." Id., at 879-881, 110 S.Ct. 1595. Should a plaintiff make a showing like that, this Court will find a First Amendment violation unless the government can satisfy "strict scrutiny" by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest. [Church of] Lukumi [Babalu Aye, Inc. v. Hialeah], 508 U.S. [520,] 546, 113 S.Ct. 2217 [124 L.Ed.2d 472 (1993)].

Kennedy v. Bremerton Sch. Dist., — U.S. —, 142 S. Ct. 2407, 2421-22, 213 L.Ed.2d 755 (2022).

A claim for violation of the RFRA is similar, but not identical. Indeed, "[b]y its terms, RFRA offers greater protection than the Free Exercise Clause." New Doe Child #1 v. United States, 901 F.3d 1015, 1025 (8th Cir. 2018). As the Supreme Court has explained, RFRA "prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means." Tanzin v. Tanvir, — U.S. —, 141 S. Ct. 486, 489, 208 L.Ed.2d 295 (2020) (citing 42 U.S.C. § 2000bb et seq.). To obtain relief under the RFRA, a claimant must first establish that the Government has substantially burdened the exercise of his or her religion with its challenged policy, law, or action. New Doe Child #1, 901 F.3d at 1025. If a claimant does so, "under the Act that person is entitled to an exemption from the rule unless the Government '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.' " Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694-95, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) (quoting 42 U.S.C. § 2000bb-1(b)).

B. Distinguishing Between Facial and As-Applied Challenges

1. The Breadth of the Remedy

Plaintiffs state that they are asserting both facial and as-applied challenges to the COVID-19 vaccination mandate under both the Free Exercise Clause and the RFRA. Filing 1 at 3 (¶ 12) ("Plaintiffs challenge the policies and actions detailed below on their face and as applied to Plaintiffs."). "The line between facial and as-applied challenges can sometimes prove amorphous and not so well defined," however. Bucklew, 139 S. Ct. at 1128. "The important inquiry [to determine the nature of the challenge] is whether the 'claim and the relief that would follow . . . reach beyond the particular circumstances of these plaintiffs.' " Free the Nipple - Springfield Residents Promoting Equal. v. City of Springfield, 923 F.3d 508, 509 n.2 (8th Cir. 2019) (quoting Doe v. Reed, 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010)). Thus, "[a] facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications." Bucklew, 139 S. Ct. at 1127. Where plaintiffs seek a declaration that the entire policy is unconstitutional, that claim "reaches beyond the particular circumstances of th[o]se plaintiffs," and the "claim is facial." Free the Nipple, 923 F.3d at 509 n.2. In contrast, a party who raises an as-applied constitutional challenge to a policy or law must show that the policy or law as applied in the particular circumstances of his case infringed on conduct that was constitutionally protected. Broadrick v. Oklahoma, 413 U.S. 601, 610-11, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). "If an as-applied challenge is successful, the statute [or policy] may not be applied to the challenger, but [it] is otherwise enforceable." Phelps-Roper v. Ricketts, 867 F.3d 883, 896 (8th Cir. 2017). Generally, a plaintiff cannot prevail on an as-applied challenge "without showing that the law has in fact been . . . unconstitutionally applied to [her]." McCullen v. Coakley, 573 U.S. 464, 485 n.4, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014).

Defendants dispute Plaintiffs' assertion that they are mounting both facial and as-applied challenges under either the Free Exercise Clause or the RFRA. The Court must address that question before moving forward.

2. Plaintiffs Assert Both Facial and As-Applied Challenges under the Free Exercise Clause

In Defendants' view, Plaintiffs' Free Exercise challenge is only an as-applied challenge. Filing 41 at 20 n.11. Defendants cite paragraph 205 in the Free Exercise Clause cause of action in Plaintiffs' Complaint, which alleges, "Defendants' Vaccine Mandate, as implemented by Defendants, is plainly not neutral and not generally applicable." Filing 1 at 48 (¶ 205). This statement alleges only that Defendants must satisfy strict scrutiny to uphold the COVID-19 vaccination mandate over a Free Exercise Clause challenge, as a matter of substantive law; it says nothing about whether the challenge is facial or as-applied. See Kennedy, 142 S. Ct. at 2421-22 (explaining that if a plaintiff shows that a government entity has burdened his sincere religious practice pursuant to a policy that is not "neutral" or "generally applicable," then the court will find a Free Exercise violation unless the government can satisfy "strict scrutiny"); see also Bucklew, 139 S. Ct. at 1127 (explaining that whether a constitutional challenge is facial or as-applied "does not speak at all to the substantive rule of law necessary to establish a constitutional violation.").

On the other hand, many of Plaintiffs' allegations seek to demonstrate that the COVID-19 vaccination policy applied in particular Plaintiffs' circumstances infringes on conduct that Plaintiff asserts is constitutionally protected. See Broadrick, 413 U.S. at 610-11, 93 S.Ct. 2908 (finding this was the nature of an as-applied challenge). For example, there are numerous allegations in Plaintiffs' Free Exercise cause of action focusing on the alleged difference in treatment between servicemembers seeking administrative and medical exemptions, on the one hand, and servicemembers seeking RARs, on the other hand. See, e.g., Filing 1 at 48-49 (¶¶ 208-214). Furthermore, Plaintiffs allege, "To survive strict scrutiny, the question is not whether Defendants have a compelling interest in vaccinating Air Force personnel in general; rather, the question is whether Defendants have a compelling interest in not granting religious accommodation requests to Plaintiffs." Filing 1 at 49 (¶ 216). A substantial amount of the evidence presented at the preliminary injunction hearing concerned whether individual Plaintiffs could be reasonably accommodated using less restrictive means. These and other allegations suggest that the Free Exercise claim challenges implementation of the COVID-19 vaccination mandate on the basis of how it is applied to each Plaintiff rather than the constitutionality of the mandate on its face. For example, focusing on the "important inquiry" into whether "the claim and the relief that would follow . . . reach beyond the particular circumstances of these plaintiffs," Free the Nipple, 923 F.3d at 509 n.2 (internal quotation marks and citations omitted), the Court notes that Plaintiffs seek declarations that the Air Force's COVID-19 vaccination mandate violates Plaintiffs' rights under the Free Exercise clause. Filing 1 at 53 (Prayer, ¶ A); see also Filing 1 at 53 (Prayer, ¶ E (seeking preliminary and permanent injunctive relief on their own behalf)). These prayers for relief demonstrate Plaintiffs are asserting as-applied challenges because they seek a determination that the COVID-19 vaccination mandate as applied in the particular circumstances of each individual Plaintiff infringed on conduct that is constitutionally protected. Broadrick, 413 U.S. at 610-11, 93 S.Ct. 2908. If a Plaintiff prevails on such a claim, the mandate may not be applied to that Plaintiff (but may be otherwise enforceable). Phelps-Roper, 867 F.3d at 896.

Nevertheless, the Court concludes that Plaintiffs also intend a facial constitutional challenge to the COVID-19 vaccination mandate under the Free Exercise Clause based on other allegations in their Complaint. Indeed, they expressly plead, "Plaintiffs challenge the policies and actions detailed below on their face and as applied to Plaintiffs." Filing 1 at 3 (¶ 12). More importantly, focusing on the "important inquiry" into whether "the claim and the relief that would follow . . . reach beyond the particular circumstances of these plaintiffs," Free the Nipple, 923 F.3d at 509 n.2 (internal quotation marks and citations omitted), the Court notes that Plaintiffs seek "[a]n order declaring unlawful and setting aside Defendants' Vaccine Mandate," i.e., voiding it in its entirety. Filing at Prayer (D); see also (F) (seeking preliminary and permanent injunctive relief on behalf of "any member" who sought or received an RAR). These prayers for relief demonstrate Plaintiffs are also asserting a facial challenge under the Free Exercise Clause because they seek a determination that the COVID-19 vaccination mandate is unconstitutional in all its applications. Bucklew, 139 S. Ct. at 1127.

3. Plaintiffs Assert Both Facial and As-Applied Challenges under the RFRA

Defendants also assert that Plaintiff's RFRA challenge is necessarily as-applied. Filing 41 at 20 n.11. In the Complaint and in litigating their request for a preliminary injunction, Plaintiffs repeatedly argued that Defendants had failed to conduct the individualized analysis of application of the COVID-19 vaccination mandate "to the person" required by RFRA. See, e.g., Filing 78 at 28 (citing Filing 21 at 17-18, 26). As Defendants suggest, Plaintiffs' focus on a plaintiff-by-plaintiff analysis under RFRA suggests that Plaintiffs' RFRA challenges are as-applied. See Bucklew, 139 S. Ct. at 1127. Again, focusing on the "important inquiry" into whether "the claim and the relief that would follow . . . reach beyond the particular circumstances of these plaintiffs," Free the Nipple, 923 F.3d at 509 n.2 (internal quotation marks and citations omitted), the Court notes that the prayers for relief on the RFRA claim are on behalf of the individual Plaintiffs. See Filing 1 at 53 (Prayer, ¶¶ B, E).

Nevertheless, the Court concludes that Plaintiffs are also attempting to assert a "facial" challenge under the RFRA based on other allegations in the Complaint. In particular, the prayers for relief on the RFRA claim are also on behalf of "any member" of the Air Force, Reserve, or Guard who has filed or received an RAR, Filing 1 at 53 (Prayer, ¶¶ D, F). Free the Nipple, 923 F.3d at 509 n.2 (explaining that the "important inquiry" is whether "the claim and the relief that would follow . . . reach beyond the particular circumstances of these plaintiffs" (internal quotation marks and citations omitted)). Just as importantly, there is authority for a facial challenge to the COVID-19 vaccination mandate policy under the RFRA. See, e.g., Navy Seal 1 v. Biden, 574 F.Supp.3d 1124, 1140 (M.D. Fla. 2021) (citing United States v. Friday, 525 F.3d 938, 951 (10th Cir. 2008)). Much like a facial challenge under the Free Exercise Clause, see Bucklew, 139 S. Ct. at 1127, "[a] facial challenge under RFRA must demonstrate that government action is 'impermissible in all, or at least the vast majority[,] of its intended applications.' " Id. (quoting Friday, 525 F.3d at 951 (10th Cir. 2008)).⁴

4 As mentioned at the beginning of Section II, "classifying a lawsuit as facial or as-applied [also] affects the extent to which the invalidity of the challenged law must be demonstrated." Bucklew, 139 S. Ct. at 1127. The Court will address that issue, and its corollary, that the nature of the challenge affects what evidence is relevant, after determining what claims are justiciable and ripe.

III. SUBJECT MATTER JURISDICTION

A. Standards for Dismissal for Lack of Subject Matter Jurisdiction

With the dual nature of Plaintiffs' Free Exercise and RFRA challenges as both facial and as-applied in mind, the Court turns to the standards applicable to Defendants' request for dismissal of Plaintiffs' claims. Defendants contend those claims are neither "ripe" nor "justiciable." Filing 41 at 16, 19. "Ripeness" and "justiciability" are requirements for subject matter jurisdiction of the federal courts under Article III of the United States Constitution. Trump v. New York, — U.S. —, 141 S. Ct. 530, 535, 208 L.Ed.2d 365 (2020).

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for a pre-answer motion to dismiss for "lack of subject matter jurisdiction." Fed. R. Civ. P. 12(b)(1). The Eighth Circuit Court of Appeals has explained that on a Rule 12(b)(1) motion,

The plaintiff bears "the burden of proving the existence of subject matter jurisdiction," and we may look at materials "outside the pleadings" in conducting our review. [Herden v. United States, 726 F.3d 1042, 1046 (8th Cir. 2013) (en banc)] (quoting Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir. 2005)). Because of the "unique nature of the jurisdictional question," Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (citation omitted), it is the court's duty to "decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue," id. at 730. As such, if the court's inquiry extends beyond the pleadings, it is not necessary to apply Rule 56 summary judgment standards. Id. at 729. Rather, the court may receive evidence via "any rational mode of inquiry," and the parties may "request an evidentiary hearing." Id. at 730 (quoting Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986)). Ultimately, the court must rule upon "the jurisdictional issue [unless it] is 'so bound up with the merits that a full trial on the merits may be necessary to resolve the issue.' " Id. (quoting Crawford, 796 F.2d at 928).

Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019); Am. Fam. Mut. Ins. Co. v. Vein Ctrs. for Excellence, Inc., 912 F.3d 1076, 1081 (8th Cir. 2019) ("[A] motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) raises a factual challenge to the court's jurisdiction, and courts may look to evidence outside the pleadings and make factual findings.") (citing Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018)).

The Buckler decision suggests that a challenge to subject matter jurisdiction pursuant to Rule 12(b)(1) is always "factual," but "facial" challenges are also possible:

In deciding a motion under Rule 12(b)(1), the district court must distinguish between a facial attack—where it looks only to the face of the pleadings—and a factual attack—where it may consider matters outside the pleadings. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In a factual attack,

the "non-moving party does not have the benefit of 12(b)(6) safeguards." Id. If the jurisdictional issue is "bound up" with the merits of the case, the district court may "decide whether to evaluate the evidence under the summary judgment standard." Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018). This court is bound by the district court's characterization of the Rule 12(b)(1) motion. Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) ("The method in which the district court resolves a Rule 12(b)(1) motion—that is, whether the district court treats the motion as a facial attack or a factual attack—obliges us to follow the same approach.").

Croyle by & through Croyle v. United States, 908 F.3d 377, 380-81 (8th Cir. 2018).

In this case, Defendants acknowledge that a Rule 12(b)(1) challenge to subject matter jurisdiction may be either facial or factual. Filing 41 at 13. They do not expressly commit to one or the other as the nature of their challenge, however, in either their opening brief or their Reply. Filing 41; Filing 86. Plaintiffs appear to take no position on the nature of the challenge. See Filing 77 (not discussing facial or factual challenges to subject matter jurisdiction). Nevertheless, both Defendants and Plaintiffs submitted copious materials concerning the subject matter jurisdiction issues for the Court's consideration. See Filing 38; Filing 40; Filing 77. Because the parties clearly intend for the Court to consider these materials on a Rule 12(b)(1) motion, the Court concludes that Defendants' challenge to subject matter jurisdiction is "factual." Croyle, 908 F.3d at 380-81 (explaining that the appellate court is bound by the district court's characterization of the motion as a facial or factual challenge); see also Buckler, 919 F.3d at 1044 (explaining that on a Rule 12(b)(1) motion, if the court's inquiry extends beyond the pleadings, it is not necessary to apply Rule 56 summary judgment standards, and the court may receive evidence via "any rational mode of inquiry"). This is so, even though neither party has requested an evidentiary hearing. See Buckler, 919 F.3d at 1044 (explaining that a party may request an evidentiary hearing on a Rule 12(b)(1) motion). Under these circumstances, Plaintiffs are not entitled to Rule 12(b)(6) "safeguards." Croyle, 908 F.3d at 380.

Defendants' challenge to subject matter jurisdiction over Plaintiffs' claims begins with "ripeness," but the Court deems it appropriate to begin instead with "justiciability."

B. Justiciability

1. The Parties' Arguments

Defendants argue that the Eighth Circuit Court of Appeals adopted the "Mindes test," set out in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), but then subsequently rejected it in Watson v. Arkansas National Guard, 886 F.2d 1004 (8th Cir. 1989). Filing 41 at 19-20. They argue that under either the Mindes test or the Watson test, Plaintiffs' as-applied claims are non-justiciable at this time, as Plaintiffs have failed to exhaust available intraservice remedies. Filing 41 at 20. Defendants also argue that the Air Force provides Plaintiffs many opportunities to present their arguments, including challenges to the lawfulness of the vaccine requirements, and for the Air Force to respond. Filing 41 at 21. Defendants also dispute Plaintiffs' assertions that exhaustion would be futile, even if relief is unlikely. Filing 41 at 23.

Plaintiffs dispute the relevance of the Mindes test and assert that exhaustion is not required under the RFRA. Filing 77 at 19-20. Indeed, Plaintiffs give little attention to "justiciability" apart from asserting that their RFRA claims are justiciable because the RFRA applies to the military, and the RFRA does not require exhaustion of administrative remedies. See Filing 77 at 18-20. They also argue that exhaustion of either of their claims would be futile, where the Air Force has granted no RARs and Defendants have not even attempted to argue that a hypothetical RAR might be granted in the future. Filing 77 at 21.

2. Watson and the Justiciability of Claims against the Military

"Justiciability" is the appropriateness or suitability of a case for adjudication by a court. Justiciability, Black's Law Dictionary (11th ed. 2019). Like some courts to address the issue recently in litigation over COVID-19 vaccination mandates by the military, Defendants discuss justiciability, at least in the alternative, under the Mindes test. See Filing 41 at 19-20. However, this Court finds that the Eighth Circuit Court of Appeals articulated the controlling standard in this Circuit for determining whether claims by servicemembers against the military or their commanders are justiciable and/or ripe in Watson v. Arkansas National Guard, 886 F.2d 1004 (8th Cir. 1989).

In Watson, a member of the Arkansas National Guard brought an action pursuant to 42 U.S.C. §§ 1981 and 1983 and the Fourteenth Amendment against the Guard and five military personnel alleging that the defendants acted in a racially discriminatory manner in dismissing him from the Guard for reasons of physical disability. 886 F.2d at 1004-05. The district court had dismissed Watson's claims for damages based on the Feres doctrine.⁵ Id. at 1005. The district court dismissed without prejudice Watson's claims for equitable relief in the form of reinstatement because he had not exhausted his administrative remedies. Id. On appeal, the defendants contended that Watson's claims for damages and for injunctive relief were both nonjusticiable and should be dismissed with prejudice. Id.

5 As the court in Watson explained, "[T]he doctrine established in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), . . . held that the United States is not liable under the Federal Tort Claims Act for injuries to military personnel which 'arise out of or are in the course of activity incident to service.' " 886 F.2d at 1005-06.

In Watson, the court explained,

The Supreme Court has stated that "[t]he special nature of military life—the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel—would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command." Chappell [v. Wallace], 462 U.S. [296,] 304, 103 S.Ct. at 2367 [76 L.Ed.2d 586 (1983)]. This reasoning applies with equal force to the possibility of a judicially imposed injunctive remedy. "[C]enturies of experience have developed a hierarchical structure of discipline and obedience to command, unique in its application to the military establishment and wholly different from civilian patterns." Id. at 300, 103 S.Ct. at 2366. The potential for disruption of this hierarchical structure exists each time a soldier hales his superior into court. See, e.g., Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 676, 97 S.Ct. 2054, 2060, 52 L.Ed.2d 665 (1977) (Marshall, J., dissenting). The threat to the "special nature of military life" is present regardless of the remedy the soldier seeks.

Watson, 886 F.2d at 1008.

Recognizing these concerns, the court in Watson concluded that the equitable relief Watson sought—reinstatement and other equitable relief—"would require a highly intrusive judicial inquiry into personnel decisions that bear upon the readiness of the military to perform its mission," which had a potential for undermining military discipline and impairing training programs and operational readiness. Id. The court added that "judicial inquiry into claims such as Watson's would thrust the courts into an area of responsibility extensively controlled by and constitutionally entrusted to the legislative and executive branches," where Congress had established a comprehensive system to regulate military life. Id. at 1008-09. The court concluded that military discipline would be affected just as much by a suit for injunctive relief as by a suit for damages and that the judiciary has no special competence just because a case involves injunctive relief rather than damages. Id. at 1009.

The court concluded that its holding was in accord with the decision in Crawford v. Texas Army National Guard, 794 F.2d 1034 (5th Cir. 1986), in which the Fifth Circuit Court of Appeals "found the plaintiff's claims for injunctive relief against the National Guard nonjusticiable without resort to the complex and unpredictable analysis prescribed in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971)." Watson, 886 F.2d at 1009.⁶ In Crawford, two members of the Texas Army National Guard (TARNG) sued the governor and twelve military personnel for allegedly violating their constitutional rights by dismissing them or putting them in inactive reserve in retaliation for reporting criminal activity and alleged discrimination toward black members of the TARNG. 794 F.2d at 1035. The Fifth Circuit Court of Appeals concluded that claims for damages and claims for equitable relief by military personnel against their superiors for alleged constitutional violations in discretionary personnel and disciplinary decisions were nonjusticiable. Id. at 1036. The court in Watson "adopted" the approach in Crawford for the Eighth Circuit, finding it was "correct" in light of the rule of deference to the military stated in Chappell and holding "that Mindes is not a viable statement of the law." Watson, 886 F.2d at 1010.

6 The court in Watson explained the Mindes test as follows:

In Mindes, the court employed a multi-factor analysis to determine whether particular constitutional claims asserted by a member of the Armed Forces against his superior officers are barred from suit. The Mindes analysis requires a two-step process. First, an internal military decision should not be reviewed unless the plaintiff alleges the deprivation of a constitutional right or that the military has acted in violation of applicable statutes or regulations, and the plaintiff has exhausted available intraservice corrective measures. Mindes, 453 F.2d at 201. Second, the reviewability of the claim must be examined by weighing the following four factors:

(1) The nature and strength of the plaintiff's challenge to the military determination. Constitutional claims, normally more important than those having only a statutory or regulatory base, are themselves unequal in the whole scale of values . . . .

(2) The potential injury to the plaintiff if review is refused.

(3) The type and degree of anticipated interference with the military function. Interference per se is insufficient since there will always be some interference when review is granted . . . .

(4) The extent to which the exercise of military expertise or discretion is involved.

Id.

Watson, 886 F.2d at 1009 n.13.

Thus, Watson makes clear that the Mindes test used in some circuits is not the proper justiciability test in this circuit for certain claims by military personnel against their service or superiors. Nevertheless, Watson also makes clear that certain claims against the military are justiciable:

We recognize that the Supreme Court "has never held . . . that military personnel are barred from all redress in

civilian courts for constitutional wrongs suffered in the course of military service." Chappell, 462 U.S. at 304, 103 S.Ct. at 2368. For example, the Court has entertained, on numerous occasions, suits involving facial constitutional challenges to military regulations or statutes . . . . "The nature of the lawsuit, rather than the relief sought, rendered them justiciable." Crawford, 794 F.2d at 1036.

Watson, 886 F.2d at 1010 (exemplar cases omitted). The court observed that Watson had not made any constitutional attack, either facial or as applied, on any statute or regulation; rather, he had challenged only the constitutionality of a discrete personnel action taken pursuant to "unassailably valid statutory authority." Id. at 1010 n.15. The court continued,

There is a vast difference between judicial review of the constitutionality of a regulation or statute of general applicability and judicial review of a discrete military personnel decision. In the first instance, a legal analysis is required; one which courts are uniquely qualified to perform. The second involves a fact-specific inquiry into an area affecting military order and discipline and implicating all the concerns on which Feres and Chappell are premised.

Watson, 886 F.2d at 1010. The court held that Watson's claim for reinstatement to the Guard was "nonjusticiable," but the court also concluded that Watson was "not left without any recourse," where he could seek review from the Army Board for the Correction of Military Records. Id. at 1011.

Thus, Watson draws a relatively bright line between servicemembers' claims against the military that are justiciable and those that are not. "[S]uits involving facial constitutional challenges to military regulations or statutes" are justiciable, because the constitutionality of a regulation or statute of general applicability requires a legal analysis, which courts are "uniquely" qualified to perform. Id. at 1010. In contrast, "judicial review of discrete military personnel decisions" are not justiciable, because they involve "a fact-specific inquiry into an area affecting military order and discipline and implicating all the concerns" behind judicial deference to military decision-making. Id. Review of a "discrete military personnel decision" is precisely what an as-applied challenge to validity of a policy or regulation requires a court to undertake. See Broadrick, 413 U.S. at 610-11, 93 S.Ct. 2908 (explaining that a party who raises an as-applied constitutional challenge to a policy or law must show that the policy or law as applied in the particular circumstances of his case infringed on conduct that was constitutionally protected); Phelps-Roper, 867 F.3d at 896 ("If an as-applied challenge is successful, the statute [or policy] may not be applied to the challenger, but is otherwise enforceable."). As noted above, generally, a plaintiff cannot prevail on an as-applied challenge "without showing that the law has in fact been . . . unconstitutionally applied to [her]." McCullen, 573 U.S. at 485 n.4, 134 S.Ct. 2518.

3. Justiciability of Plaintiffs' Free Exercise Claims

Plaintiffs bear the burden to prove justiciability under Watson. See Buckler, 919 F.3d at 1044 (explaining plaintiffs bear the burden to establish subject matter jurisdiction); see also Trump, 141 S. Ct. at 535 (explaining that subject matter jurisdiction requires that an action be justiciable). Although the Court is not convinced by the short shrift Plaintiffs have given the justiciability question, the Court nevertheless concludes that Plaintiffs' facial challenge under the Free Exercise Clause is justiciable under Watson, while their as-applied challenges are not.

a. Plaintiffs' Facial Challenge under the Free Exercise Clause is Justiciable

Plaintiffs' claim that the Air Force's COVID-19 vaccination mandate is unconstitutional on its face under the Free Exercise Clause. That is precisely the kind of challenge to military policies or regulations that the Supreme Court has allowed. Watson, 886 F.2d at 1010 (citing cases). Plaintiffs' facial constitutional challenge to the Air Force's COVID-19 vaccination mandate is justiciable because that policy is one of general applicability—in that the policy applies to all members of the Air Force, Air Force Reserve, and Air National Guard—and determining its facial constitutionality requires a legal analysis, which courts are "uniquely" qualified to perform. Id. at 1010.

Still more specifically, whether a challenge to a policy or law is classified as facial or as-applied "affects the extent to which the invalidity of the challenged law must be demonstrated." Bucklew, 139 S. Ct. at 1127. A corollary of this affect is that the nature of the challenge affects what evidence is relevant. Even though a facial challenge provides broader relief—because it "reach[es] beyond the particular circumstances of" the Plaintiffs in this case and could render the policy unenforceable as to all Air Force servicemembers, see Free the Nipple, 923 F.3d at 509 n.2—the universe of relevant evidence is smaller. The Court does not look at application of the policy at all, let alone application of the policy to any particular Plaintiff or Plaintiffs. Rather, the Court looks at the evidence of the interest supporting adoption of the policy, the requirements of the policy, and the consequences of violating the policy. In the context of a Free Exercise Clause challenge, the Court considers whether the policy burdens religious practices, whether the policy is "neutral" or "generally applicable," and if neither, whether the policy is justified by a compelling state interest and is narrowly tailored in pursuit of that interest. Kennedy, 142 S. Ct. at 2421-22. A facial challenge under the Free Exercise Clause does not require examination of the application of the policy to any particular Plaintiff, so there is no reason to look beyond the COVID-19 vaccination mandate's requirement of discharge for non-compliance or to look at the administrative proceedings used to accomplish the discharge after the Air Force Surgeon General's denial of an RAR appeal.

Although the Plaintiffs' facial challenge to the Air Force's COVID-19 vaccination mandate under the Free Exercise Clause is limited in the scope of the relevant evidence, Defendants are not entitled to dismissal of that challenge on justiciability grounds.

b. Plaintiffs' As-Applied Challenges under the Free Exercise Clause are Nonjusticiable

In contrast to the justiciability of their facial challenges, Plaintiffs have failed to carry their burden to establish the justiciability of their as-applied challenges to the Air Force's COVID-19 vaccination mandate under the Free Exercise Clause. As the court explained in Watson, there is a "vast difference" between judicial review of a facial constitutional challenge and judicial review of a "discrete military personnel decision." Watson, 886 F.2d at 1010. A challenge to an individualized application of the COVID-19 vaccination policy to a particular servicemember—which amounts to an as-applied challenge—is a challenge to a "discrete military personnel decision." Consequently, it "involves a fact-specific inquiry into an area affecting military order and discipline and implicating all the concerns on which Feres and Chappell are premised." Watson, 886 F.2d at 1010. Thus, claims involving such "discrete military personnel decisions" are not justiciable. This is so, even if such claims are only for equitable relief, as is the case here, not for damages. Id. (finding non-justiciable such claims for injunctive or other equitable relief as well as damages).

More specifically, (1) any as-applied challenge that addressed the application or outcome of the RAR process under the COVID-19 vaccination policy for any individual Plaintiff, and (2) any as-applied challenge to any subsequent disciplinary procedures against any individual Plaintiff who completed the RAR process without obtaining an exemption, would necessarily be a challenge to a "discrete military personnel decision" that is not justiciable. Id. This conclusion is apparent from the record, which shows that the application and outcome of the initial RAR process, the RAR appeal process, and any subsequent disciplinary actions are piecemeal for individual Plaintiffs. See, supra, Section I.B.3, beginning on page 12.

Consequently, Defendants are entitled to dismissal of all as-applied challenges under the Free Exercise Clause as nonjusticiable claims over which the Court lacks subject matter jurisdiction.

c. The Practical Effect of which Free Exercise Challenges are Justiciable

The corollary practical effect of this conclusion is that the justiciable facial challenge under the Free Exercise Clause does not involve any specific disciplinary actions or proceedings against any specific Plaintiffs whose RARs have been denied initially by the approval authority and on appeal to the Air Force Surgeon General. Rather, the justiciable claim involves only disciplinary consequences expressly authorized by the COVID-19 vaccination mandate on its face, consisting of the possible removal from or limitations on federal service for non-compliance with the mandate. See Filing 1-1 at 5-6 (setting out the Air Force's COVID-19 vaccination mandate); Filing 1-1 at 8-9 (supplement to the Air Force's COVID-19 vaccination mandate setting out the options for a regular service member whose RAR appeal is denied and that regular service members who continue to refuse an order to receive the COVID-19 vaccine after their exemption request or final appeal has been denied or retirement/separation has not been approved will be subject to initiation of administrative discharge); Filing 1-1 at 10-11 (supplementary guidance for members of the Air Force Reserve and Active Guard and Reserve setting out the same options on denial of an RAR appeal and that the consequence of continued refusal will be involuntary reassignment to Individual Ready Reserve (IRR)); Filing 1-1 at 12-13 (supplementary guidance for members of the Air National Guard setting out the same options on denial of an RAR appeal and that the consequence of continued refusal will be involuntary assignment to the IRR).

4. Justiciability of Plaintiffs' RFRA Challenges

Plaintiffs also assert facial and as-applied challenges to the COVID-19 vaccination mandate under the RFRA. Filing 1 at ¶ 12. The Court concludes that Plaintiffs' facial challenge under the RFRA is justiciable under Watson, while their as-applied challenges are not.

a. Plaintiffs' Facial Challenge under the RFRA is Justiciable

Although Watson addressed only the justiciability of facial constitutional challenges, the Court concludes that facial RFRA challenges are likewise justiciable, for essentially the same reasons and for the additional reason that "[b]y its terms, RFRA offers greater protection than the Free Exercise Clause." See, e.g., New Doe Child #1, 901 F.3d at 1025. Plaintiffs' claim that the Air Force's COVID-19 vaccination mandate is invalid on its face under the RFRA is much like the kind of facial constitutional challenge to military statutes or regulations that the Supreme Court has allowed. See Watson, 886 F.2d at 1010. (citing cases). Again, the vaccination policy is one of general applicability—in that the policy applies to all members of the Air Force, Air Force Reserve, and Air National Guard—and determining its facial validity under RFRA requires a legal analysis, which courts are "uniquely" qualified to perform. Id. at 1010.

As with a Free Exercise Clause challenge, classifying a RFRA challenge as facial "affects the extent to which the invalidity of the challenged law must be demonstrated," Bucklew, 139 S. Ct. at 1127, and hence it affects the evidence that is relevant to the challenge. It is true that a RFRA claim requires consideration of whether application of the burden on religion "to the person" is in furtherance of a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest. Burwell, 573 U.S. at 694-95, 134 S.Ct. 2751. Nevertheless, the Court concludes that on a facial challenge under RFRA, the Court does not look at application of the policy to any particular Plaintiff or Plaintiffs. Rather, the relevant evidence is whether the policy requires the individualized determination imposed by the RFRA. See Filing 78 at 28 (citing Burwell, 573 U.S. at 695, 134 S.Ct. 2751). Thus, just as with a facial challenge to the COVID-19 vaccination mandate under the Free Exercise Clause, there is no reason to look at the administrative proceedings used to accomplish the discharge after the Air Force Surgeon General's denial of an RAR appeal.

Although Plaintiffs' facial challenge to the Air Force's COVID-19 vaccination mandate under the RFRA involves limited evidence, Defendants are not entitled to dismissal of that challenge on justiciability grounds.

b. Plaintiffs' As-Applied Challenges under the RFRA are Nonjusticiable

In contrast to the justiciability of their facial challenge under the RFRA, Plaintiffs have failed to carry their burden to establish the justiciability of their as-applied challenges to the Air Force's COVID-19 vaccination mandate under the RFRA. Again, as-applied claims are non-justiciable under Watson because they involve judicial review of a "discrete military personnel decision." Watson, 886 F.2d at 1010. More specifically, (1) any as-applied challenge under the RFRA that addresses the application or outcome of the RAR process under the COVID-19 vaccination policy for any individual Plaintiff, and (2) any as-applied challenge to any subsequent disciplinary procedures against any individual Plaintiff who completed the RAR process without obtaining an exemption, would necessarily be a challenge to a "discrete military personnel decision" that is not justiciable. See id. Again, this conclusion is apparent from the record, which shows that the application and outcome of the initial RAR process, the RAR appeal process, and any subsequent disciplinary actions are piecemeal for individual Plaintiffs. See, supra, Section I.B.3, beginning on page 12.

Consequently, Defendants are entitled to dismissal of all as-applied challenges under the RFRA as nonjusticiable claims over which the Court lacks subject matter jurisdiction.

c. The Practical Effect of which RFRA Challenges are Justiciable

The practical effect of this conclusion is that the justiciable facial challenge under the RFRA does not involve any specific disciplinary actions or proceedings against any specific Plaintiffs whose RARs have been denied initially by the approval authority and on appeal to the Air Force Surgeon General. Rather, the justiciable claims under RFRA involve only disciplinary consequences expressly authorized by the COVID-19 vaccination mandate on its face, consisting of the possible removal from or limitations on federal service for non-compliance with the mandate. See Filing 1-1 at 5-6 (setting out the Air Force's COVID-19 vaccination mandate); Filing 1-1 at 8-9 (supplement to the Air Force's COVID-19 vaccination mandate setting out the options for a regular service members whose RAR appeal is denied and that regular service members who continue to refuse an order to receive the COVID-19 vaccine after their exemption request or final appeal has been denied or retirement/separation has not been approved will be subject to initiation of administrative discharge); Filing 1-1 at 10-11 (supplementary guidance for members of the Air Force Reserve and Active Guard and Reserve setting out the same options on denial of an RAR appeal and that the consequence of continued refusal will be involuntary reassignment to Individual Ready Reserve (IRR)); Filing 1-1 at 12-13 (supplementary guidance for members of the Air National Guard setting out the same options on denial of an RAR appeal and that the consequence of continued refusal will be involuntary assignment to the IRR).

Thus, "facial" Free Exercise and RFRA claims—if otherwise ripe—are justiciable.⁷

7 In its ruling on Plaintiffs' request for a preliminary injunction, the Court concluded that the Air Force's RAR process adhered to the requirements of the law, most specifically RFRA, so that Plaintiffs did not have sufficient likelihood of success on the merits of either their RFRA claim or their Free Exercise Clause claim to warrant issuance of a preliminary injunction. See, e.g., Filing 78 at 61. That conclusion is not binding beyond the preliminary injunction ruling, however. See U.S. Sec. & Exch. Comm'n v. Zahareas, 272 F.3d 1102, 1105 (8th Cir. 2001) ("[W]e have long held that 'findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding.' ") (quoting Patterson v. Masem, 774 F.2d 251, 254 (8th Cir. 1985)); Campaign for Fam. Farms v. Glickman, 200 F.3d 1180, 1186 (8th Cir. 2000) ("[T]he district court's findings of fact and conclusions of law on an application for a preliminary injunction are 'tentative and provisional, in the sense that different findings . . . might be warranted after a trial on the merits.' ") (quoting Indep. Fed. of Flight Attendants v. Trans World Airlines, Inc., 655 F.2d 155, 159 (8th Cir. 1981), and also citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)). Furthermore, Defendants have not moved for dismissal on that ground.

C. Ripeness

Ripeness is a part or component of justiciability. See Trump, 141 S. Ct. at 535. Notwithstanding the Court's determination that certain claims in this case are nonjusticiable, the Court will also consider whether any of the claims are ripe. The Court finds that it is in the context of ripeness, rather than in the context of justiciability, that the issue of exhaustion of administrative (intraservice) remedies is most properly considered.

1. The Parties' Arguments

Defendants argue that Plaintiffs cannot satisfy either the "fitness" prong or the "hardship" prong of the ripeness analysis. Filing 41 at 16. Defendants contend that the claims of Plaintiffs who have not completed the RAR appeals process are not fit for judicial resolution, because the Air Force has not finally resolved their requests. Filing 41 at 16. Defendants argue claims of regular servicemembers who have completed the RAR process are unripe because the Air Force has not yet made a final administrative determination of separation, while reserve and Guard members who have completed the RAR process will not be separated but only reassigned to the IRR. Filing 41 at 17 and n.9. Defendants also argue that Plaintiffs cannot show hardship, because they will suffer no harm until the Air Force finally decides whether to pursue adverse administrative action against Plaintiffs whose RARs have been denied. Filing 41 at 18. Defendants also argue that Plaintiffs have failed to exhaust available intraservice remedies as to their as-applied challenges, where they still have opportunities in disciplinary proceedings to present their individual arguments, including arguments that the vaccine requirement is unlawful, and for the Air Force to respond. Filing 41 at 20-21. As to alleged futility of any exhaustion requirement, Defendants argue that even if relief is unlikely, it is not futile. Filing 41 at 23.

Plaintiffs respond that Defendants fail to apply the two prongs of the "ripeness" analysis. Filing 77 at 11. They argue that the RAR review process is not tentative but final, because no subsequent administrative hearing can reverse that RAR decision. Filing 77 at 12. As to Defendants arguments about failure to exhaust claims, Plaintiffs argue that exhaustion is futile, because the outcome is a foregone conclusion—all RARs will be denied initially and on appeal, all regular service Plaintiffs will be discharged, and all Reserve or Guard members will be transferred to "no pay/no points" status or to IRR status, either of which is de facto discharge for Reserve and Guard members. Filing 77 at 9-10, 12. Furthermore, Plaintiffs argue that the RFRA contains no exhaustion requirement, but even if exhaustion applies to an RFRA claim, exhaustion is futile in this case. Filing 77 at 14-15. Plaintiffs develop this theme of futility of administrative proceedings by arguing that there is no procedure for review of denial of an RAR appeal, Filing 77 at 15-17; that the Board for the Correction of Military Records (BCMR) has no authority to declare law in reviewing disciplinary actions, Filing 77 at 17; that Mindes does not preclude justiciability even though it contains an exhaustion requirement, Filing 77 at 19-20; that the 100% rejection rate of RARs demonstrates futility of exhaustion, Filing 77 at 21; and that inaction on Guard Plaintiffs' RARs demonstrates futility, Filing 77 at 22. Plaintiffs also assert that they all face harm if judicial review is denied, both financial harm and through the forced modification of their behavior resulting in loss of training and effective freezing of their military careers, as well as periods of time during which they were deprived of their Free Exercise Clause freedoms. Filing 77 at 13.

In reply, Defendants argue that Plaintiffs' reliance on the RFRA's lack of an exhaustion requirement misunderstands the difference between statutory exhaustion requirements and prudential exhaustion requirements and that only the latter is relevant here. Filing 86 at 7. As to alleged futility of administrative remedies, Defendants reiterate that Plaintiffs still have intraservice remedies that may permit them to be retained despite their unvaccinated status. Filing 86 at 7-8. Defendants also reiterate their argument that Plaintiffs do not bring any facial challenges, Filing 86 at 12, but the Court rejected that argument above, in Section II.

2. Ripeness Standards

"The ripeness doctrine draws 'both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.' " Animal Legal Def. Fund v. Vaught, 8 F.4th 714, 721 n.* (8th Cir. 2021) (quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 n.18, 113 S.Ct. 2485, 125 L.Ed.2d 38, (1993)); accord United States v. Gates, 915 F.3d 561, 563 (8th Cir. 2019) ("The ripeness doctrine is grounded in both the jurisdictional limits of Article III of the Constitution and policy considerations of effective court administration.") (quoting KCCP Tr. v. City of N. Kansas City, 432 F.3d 897, 899 (8th Cir. 2005)). "Ripeness" means that the case is "not dependent on 'contingent future events that may not occur as anticipated, or indeed may not occur at all.' " Trump, 141 S. Ct. at 535 (quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)). To put it another way, "[t]he ripeness doctrine prevents courts 'through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also [protects] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.' " Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 796 (8th Cir. 2016) (quoting National Right to Life Political Action Comm. v. Connor, 323 F.3d 684, 692 (8th Cir. 2003)). Indeed, "[t]he touchstone of a ripeness inquiry is whether the harm asserted has matured enough to warrant judicial intervention." Id. at 797 (quoting Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014)).

As the Eighth Circuit Court of Appeals has explained,

"Ripeness requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Texas v. United States, 523 U.S. 296, 300-01, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal quotation marks omitted). "The fitness prong safeguards against judicial review of hypothetical or speculative disagreements." Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (internal quotation marks omitted). The hardship prong considers whether delayed review "inflicts significant practical harm" on the petitioner. Id.

United States v. Gates, 915 F.3d 561, 563 (8th Cir. 2019); Hughes v. City of Cedar Rapids, 840 F.3d 987, 992 (8th Cir. 2016). Somewhat more specifically,

Fitness depends on whether a case needs further factual development. Id. Hardship requires that the plaintiff "has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged statute or official conduct." Id. The plaintiff "must necessarily satisfy both prongs to at least a minimal degree." Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1039 (8th Cir. 2000).

Hughes, 840 F.3d at 992-93.

A corollary of the fitness requirement is that a claim is ripe where the issues are "purely legal, and will not be clarified by further factual development." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)); Iowa League of Cities v. E.P.A., 711 F.3d 844, 867 (8th Cir. 2013) ("Fitness rests primarily on whether a case would 'benefit from further factual development,' and therefore cases presenting purely legal questions are more likely to be fit for judicial review." (quoting Pub. Water Supply Dist. No. 10 v. City of Peculiar, 345 F.3d 570, 573 (8th Cir. 2003)), enforced sub nom. Iowa League of Cities v. E.P.A., No. 11-3412, 2021 WL 6102534 (8th Cir. Dec. 22, 2021).

Circuit law is somewhat unclear about when a claim must be ripe. The Eighth Circuit Court of Appeals has stated, "[R]ipeness is peculiarly a question of timing, and it is the situation now rather than the situation at the time of the [decision under review] that must govern." City of Kennett, v. E.P.A., 887 F.3d 424, 432 (8th Cir. 2018) (internal quotation marks omitted) (quoting Anderson v. Green, 513 U.S. 557, 559, 115 S.Ct. 1059, 130 L.Ed.2d 1050 (1995) (per curiam)). The court acknowledged, however, that it had previously said, "Jurisdictional issues such as standing and ripeness are determined at the time the lawsuit was filed." Id. at 432-33 (quoting Sierra Club v. U.S. Army Corps of Eng'rs, 446 F.3d 808, 814 (8th Cir. 2006)). The Court concludes that, at least where the relationship between the parties is evolving in light of the challenged actions, the Court must consider "the situation now," id. at 432, rather than at the time Plaintiffs filed their Complaint, contra Sierra Club, 446 F.3d at 814.

3. Ripeness of Plaintiffs' Free Exercise Clause Challenges

a. Plaintiffs' Facial Challenge under the Free Exercise Clause is Ripe

The Court concludes that Plaintiffs' facial challenge to the Air Force's COVID-19 vaccination mandate is ripe. Such claims are "not dependent on 'contingent future events that may not occur as anticipated, or indeed may not occur at all.' " Trump, 141 S. Ct. at 535 (quoting Texas, 523 U.S. at 300, 118 S.Ct. 1257). More specifically, the Court concludes that contrary to Defendants' arguments, Plaintiffs' facial challenge satisfies both prongs of the "ripeness" analysis.

As to the "fitness" prong of the analysis, see Gates, 915 F.3d at 563 (first prong of the ripeness analysis), Defendants have not cited and the Court has not found any controlling precedent requiring administrative exhaustion of a facial challenge to a military policy. The Watson decision is not such precedent because it noted that the Mindes analysis requires consideration of whether the plaintiff has exhausted available intraservice corrective measures, but the Watson decision rejected Mindes as "not a viable statement of the law." Watson, 886 F.2d at 1010 and n.13. The court in Watson also found that facial constitutional challenges were justiciable based on their nature, without regard to administrative exhaustion. Id. at 1010. In contrast, Watson required exhaustion of administrative remedies as to claims for correction of military records and backpay, i.e., disciplinary matters in that case stemming from alleged constitutional violations. Id. at 1005 (summarizing its holding); see also id. at 1008 (finding the plaintiff failed to exhaust his administrative remedies as to claims seeking correction of his military record and reinstatement of eligibility for retirement benefits). Defendants do not cite any controlling authority requiring exhaustion of a facial Free Exercise Clause claim.

Next, Defendants assert that Plaintiffs' claims are not fit for judicial resolution because matters are still pending before the Air Force. Filing 41 at 16, 17. However, Defendants do not identify any factual issues that require further development as to a Free Exercise Clause facial challenge. See Hughes, 840 F.3d at 992 (defining fitness in terms of the need for further factual development). Indeed, as the Court explained in its analysis of justiciability of a facial challenge under the Free Exercise Clause, evidence concerning denial of individual RARs and evidence of subsequent administrative discharge proceedings are simply irrelevant to the facial challenge. As to ripeness, the Court concludes that the facial challenges are "purely legal, and will not be clarified by further factual development" at the administrative level. See Susan B. Anthony List, 573 U.S. at 167, 134 S.Ct. 2334 (recognizing such claims are ripe).

Thus, Plaintiffs have satisfied the "fitness" prong of the ripeness inquiry as to their facial challenge under the Free Exercise Clause.

The Court also concludes that Plaintiffs have established the "hardship" prong of the ripeness analysis as to their facial challenge under the Free Exercise Clause. Gates, 915 F.3d at 563 (second prong of ripeness). Plaintiffs have shown that the COVID-19 vaccination mandate "inflicts significant harm" on them or may do so, id. (quotation marks and citation omitted), that is, that they have "sustained or [are] immediately in danger of sustaining some direct injury as a result of" the COVID-19 vaccination mandate, see Hughes, 840 F.3d at 992 (defining hardship for ripeness purposes). This is not true as to all the harms on which Plaintiffs rely, however.

In this Court's ruling denying Plaintiffs' request for a preliminary injunction, the Court found that some of the harms that Plaintiffs allege are the result of facial unconstitutionality of the COVID-19 vaccination mandate under the Free Exercise Clause are harms that would be suffered by any unvaccinated servicemember, whether the servicemember had no exemption, a medical exemption, an administrative exemption, or a religious exemption. See Filing 78 at 42 (finding that, "contrary to Plaintiffs' contentions, service members with medical, administrative, or religious exemptions to the COVID-19 vaccination mandate do not operate within the Air Force as if they were vaccinated," because they are instead still treated as if they were unvaccinated). In supplemental briefing after this issue arose in the preliminary injunction hearing, Plaintiffs failed to rebut this finding. Filing 78 at 40-42 (explaining why the Court found Plaintiffs' supplemental arguments and evidence on this point unpersuasive). Plaintiffs have not since produced any evidence to the contrary in response to Defendants' Motion to Dismiss.

The question then becomes whether Plaintiffs have shown they "sustained or [are] immediately in danger of sustaining some direct injury as a result of" the alleged facial unconstitutionality of the COVID-19 vaccination mandate under the Free Exercise Clause. See Hughes, 840 F.3d at 992. The Court finds that Plaintiffs have shown that they are suffering or are in immediate danger of suffering harm in the form of the "coercion" of choosing between the exercise of religious rights and their employment, if caused by a Free Exercise Clause violation or a likely Free Exercise Clause violation. Cf. Filing 78 at 59 (limiting a similar finding to a RFRA violation or likely RFRA violation).

The ripe facial Free Exercise Clause challenge is, of course, subject to the same evidentiary limitations applicable to that claim on justiciability grounds.

b. Plaintiffs' As-Applied Challenges under the Free Exercise Clause are not Ripe

The Court has already determined that Plaintiffs as-applied challenges under the Free Exercise Clause are not justiciable under Watson. See Trump, 141 S. Ct. at 535 (explaining that subject matter jurisdiction requires that an action be justiciable which requires in part that they be ripe). Nevertheless, the Court will pause for a moment to explain why those claims also are not ripe.

Essentially, such claims are not ripe because they are "dependent on 'contingent future events that may not occur as anticipated, or indeed may not occur at all.' " Trump, 141 S. Ct. at 535 (quoting Texas, 523 U.S. at 300, 118 S.Ct. 1257). Defendants contend that the Air Force provides Plaintiffs many opportunities to present their arguments and for the Air Force to respond. Filing 41 at 21. Nothing in the record suggests that individual servicemembers can challenge the COVID-19 vaccination mandate on either constitutional or RFRA grounds at any point in the RAR determination process, however. On the other hand, any servicemember may challenge the lawfulness of the vaccine requirement in the individual disciplinary proceedings that may follow final denial of an RAR. See United States v. Kisala, 64 M.J. 50, 53-55 (C.A.A.F. 2006); see also Filing 41 at 21. Thus, the impact of application of the COVID-19 vaccination mandate on individual servicemembers does need further factual development through administrative proceedings, as that impact is uncertain and speculative before conclusion of the disciplinary process. See Hughes, 840 F.3d at 992 (explaining fitness in terms of the need for further factual development).

This conclusion is in accord with the principle that a plaintiff generally cannot prevail on an as-applied challenge "without showing that the law has in fact been . . . unconstitutionally applied to [her]." McCullen, 573 U.S. at 485 n.4, 134 S.Ct. 2518. It is also in accord with the decision in Watson where the court held that Watson's claim for relief from "discrete military personnel decisions" was not justiciable, because Watson was "not left without any recourse," where he could seek review from the Army Board for the Correction of Military Records (ABCMR). Watson, 886 F.2d at 1010. The court in Watson held that "[t]o the extent that Watson seeks correction of his military record and reinstatement of eligibility for retirement benefits, we find his claims premature"—i.e., unripe. Id. at 1008. The court explained that exhaustion of administrative remedies by appealing to the ABCMR "is required in this circuit." Id. (citing Horn v. Schlesinger, 514 F.2d 549, 553 (8th Cir. 1975)).

The Court is unwilling to find that exhaustion of those disciplinary proceedings is futile even if a finding of a constitutional violation in those proceedings may seem improbable. See Horn, 514 F.2d at 553 ("Plaintiff characterizes an appeal to the ABCMR as futile, charging that the improbability of reversal by that body excuses application to it, since appeal would involve resort to 'a non-existence (sic) remedy.' We do not share the plaintiff's pessimism. We will indulge, until otherwise convinced, in the presumption that the military will be astute to afford to the plaintiff all of the rights and the protections afforded him by the Constitution, the statutes, and its own regulations.").

Plaintiffs argue that their as-applied challenges are ripe because they are not challenging the timing of their discharge or transfer to IRR, or seeking to alter the terms of the discharge, transfer, or punishment they face. Filing 77 at 11. Rather, they contend, they are seeking to alter the decision of the Air Force to deny their RARs, which is final once the Air Force Surgeon General denies an airman's RAR appeal. Filing 77 at 11. The Court is not persuaded. First, this assertion is contrary to allegations in Plaintiffs' Complaint, which do appear to challenge the punishment each of them faces for refusing to receive the COVID-19 vaccination after denial of an RAR appeal. See, e.g., Filing 1 at ¶¶ 26, 27, 50, 88, 174, and 222. Second, even assuming Plaintiffs intend to limit their as-applied claims in this way, they still have opportunities to challenge the constitutionality of application of the COVID-19 vaccination mandate to each of them in administrative proceedings that have not been completed as to any of them. See Horn, 514 F.2d at 553.

Thus, Plaintiffs' as-applied challenges under the Free Exercise Clause are neither ripe nor justiciable.

4. Ripeness of Plaintiffs' RFRA Challenges

a. Plaintiffs' Facial Challenge under the RFRA is Ripe

The Court concludes that Plaintiffs' facial challenge to the Air Force's COVID-19 vaccination mandate under the RFRA is ripe for essentially the same reasons their facial challenge under the Free Exercise Clause is ripe. Defendants do not identify any factual issues that require further development as to a RFRA facial challenge. See Hughes, 840 F.3d at 992 (defining fitness in terms of the need for further factual development). Indeed, as the Court explained in its analysis of justiciability of a facial challenge under the RFRA, evidence concerning denial of individual RARs and evidence of subsequent administrative discharge proceedings are simply irrelevant to the facial challenge. As to ripeness, the Court concludes that a facial challenge under RFRA is "purely legal, and will not be clarified by further factual development" at the administrative level. See Susan B. Anthony List, 573 U.S. at 167, 134 S.Ct. 2334 (recognizing such claims are ripe). Thus, the facial challenge under the RFRA satisfies the "fitness" requirement. see Gates, 915 F.3d at 563 (first prong of the ripeness analysis). This is true, even though the RFRA requires consideration of whether application of the burden on religion "to the person" is in furtherance of a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest. Burwell, 573 U.S. at 694-95, 134 S.Ct. 2751. The Court concludes that on a facial challenge under RFRA, the Court does not look at application of the policy to any particular Plaintiff or Plaintiffs. Rather, the relevant question is whether the policy requires the individualized determination imposed by the RFRA. See Filing 78 at 28 (citing Burwell, 573 U.S. at 695, 134 S.Ct. 2751). Thus, just as with a facial challenge to the COVID-19 vaccination mandate under the Free Exercise Clause, there is no reason to look at the administrative proceedings used to accomplish the discharge after the Air Force Surgeon General's denial of an RAR appeal on a facial challenge under the RFRA.

The Court also concludes that Plaintiffs have established the "hardship" prong of the ripeness analysis as to their facial challenge under the RFRA. Gates, 915 F.3d at 563 (second prong of ripeness). Plaintiffs have shown that the COVID-19 vaccination mandate "inflicts significant harm" on them or may do so, id. (quotation marks and citation omitted), that is, that they have "sustained or [are] immediately in danger of sustaining some direct injury as a result of" the COVID-19 vaccination mandate, see Hughes, 840 F.3d at 992 (defining hardship for ripeness purposes). The Court finds that Plaintiffs have shown that they are suffering or are in immediate danger of suffering harm in the form of the "coercion" of choosing between the exercise of religious rights and their employment, if caused by a RFRA violation or a likely RFRA violation. Cf. Filing 78 at 59 (limiting a similar finding to a RFRA violation or likely RFRA violation).

Like the ripe facial challenge under the Free Exercise Clause, the ripe facial challenge under the RFRA is, of course, subject to the same evidentiary limitations applicable to that claim on justiciability grounds.

b. Plaintiffs' As-Applied Challenges under the RFRA are not Ripe

Like Plaintiffs' as-applied challenges under the Free Exercise Clause, Plaintiffs' as-applied challenges under the RFRA are not ripe because they are "dependent on 'contingent future events that may not occur as anticipated, or indeed may not occur at all.' " Trump, 141 S. Ct. at 535 (quoting Texas, 523 U.S. at 300, 118 S.Ct. 1257). Again, any servicemember may challenge the lawfulness of the vaccine requirement in the individual disciplinary proceedings that may follow final denial of an RAR. See United States v. Kisala, 64 M.J. 50, 53-55 (C.A.A.F. 2006); see also Filing 41 at 21. Thus, the impact of application of the COVID-19 vaccination mandate on individual Plaintiffs does need further factual development through administrative proceedings, as that impact is uncertain and speculative before conclusion of the disciplinary process. See Hughes, 840 F.3d at 992 (explaining fitness in terms of the need for further factual development). This is in accord with the principle that a plaintiff generally cannot prevail on an as-applied challenge "without showing that the law has in fact been . . . unconstitutionally applied to [her]." McCullen, 573 U.S. at 485 n.4, 134 S.Ct. 2518. It is also in accord with the decision in Watson. See 886 F.2d at 1008, 1010.

Plaintiffs argue that the RFRA does not require exhaustion of administrative remedies and that even if did, exhaustion is futile. Their futility argument is no more persuasive as to the as-applied RFRA challenge than it is as to the as-applied Free Exercise Clause challenge. Their argument that the RFRA does not require administrative exhaustion is also unpersuasive. The fact that the RFRA does not contain an exhaustion requirement does not answer the question of whether Watson should be understood to impose such a requirement on as-applied challenges to military policies or regulations, which necessarily address "discrete military personnel decisions." Cf. Short v. Berger, No. CV-22-00444-PHX-DJH, 599 F.Supp.3d 844, 857-58 (D. Ariz. Apr. 22, 2022) (framing the issue the same way as to the Mindes test). In other words, the question of exhaustion does not turn on statutory interpretation of the RFRA, but on the prudential concerns of interference with military decision-making addressed in Watson. In Watson, the court held that Watson's claim for relief from "discrete military personnel decisions"—exactly the kind of decisions at issue in an as-applied challenge under the RFRA—were not justiciable, because Watson was "not left without any recourse," where he could seek review from the ABCMR. Watson, 886 F.2d at 1010. The court in Watson held that "[t]o the extent that Watson seeks correction of his military record and reinstatement of eligibility for retirement benefits, we find his claims premature"—i.e., unripe. Id. at 1008. The court explained that exhaustion of administrative remedies by appealing to the ABCMR "is required in this circuit." Id. (citing Horn, 514 F.2d at 553). This Court is persuaded that Watson requires administrative exhaustion of as-applied challenges to the Air Force's COVID-19 vaccination mandate under the RFRA, even if the RFRA does not itself impose such a requirement.

Thus, Plaintiffs' as-applied challenges under the RFRA are neither ripe nor justiciable.

D. Summary On Subject Matter Jurisdiction

In short, the part of Defendants' Motion under Rule 12(b)(1) asserting lack of subject matter jurisdiction over Plaintiffs' claims on the grounds of lack of justiciability and unripeness is granted in part and denied in part. It is granted as to Plaintiffs' as-applied challenges under the Free Exercise Clause and the RFRA. It is denied as to Plaintiffs' facial challenges under the Free Exercise Clause and the RFRA.⁸

8 Again, the Court concluded in its ruling on Plaintiffs' request for a preliminary injunction that Plaintiffs are unlikely to succeed on the merits of a RFRA claim or a Free Exercise Clause claim. Again, that conclusion is not binding beyond the preliminary injunction ruling. See, e.g., Zahareas, 272 F.3d at 1105. Furthermore, Defendants have not moved for dismissal on the ground that Plaintiffs have not stated claims on which relief can be granted based on their allegations concerning the merits of their claims.

IV. SEVERANCE

Defendants argue, in the alternative, that the individualized claims of all thirty-six Plaintiffs—or as many Plaintiffs as assert claims over which the Court has subject matter jurisdiction—should be severed into that many separate, single-plaintiff actions. Filing 41 at 24. The Court must consider this argument because the Court has subject matter jurisdiction over Plaintiffs' claims to the extent that they assert facial challenges.

A. The Parties' Arguments

Defendants argue that the various Plaintiffs' claims involve different factual circumstances, so that each requires individualized proof and defenses. Filing 41 at 24. They argue that for essentially the same reasons the individual claims do not arise out of the same transaction or occurrence they also do not present common questions of law or fact. Filing 41 at 24. Defendants contend that under these circumstances joinder of all Plaintiffs' claims is improper under Rule 20 of the Federal Rules of Civil Procedure and that severance is appropriate pursuant to Rule 21. Filing 41 at 24. Defendants argue that even if joinder is otherwise proper, severance should be required on grounds of avoiding prejudice and delay, ensuring judicial economy, and safeguarding principles of fundamental fairness. Filing 41 at 30. Plaintiffs counter that their claims easily satisfy the requirements for permissive joinder under Rule 20(a). The Court agrees with Plaintiffs at least where their remaining claims are facial challenges that are limited as explained above.

B. Joinder and Severance Standards

Rule 20(a)(1) of the Federal Rules of Civil Procedure allows multiple plaintiffs to join in a single action if certain requirements are met. In re Prempro Prod. Liab. Litig., 591 F.3d 613, 622 (8th Cir. 2010) (citing Fed. R. Civ. P. 20(a)(1)). The Eighth Circuit Court of Appeals has addressed joinder standards surprisingly rarely.

As the Eighth Circuit Court of Appeals explained more than four decades ago,

The purpose of [Rule 20] is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits. 7 C. Wright, Federal Practice and Procedure § 1652 at 265 (1972). Single trials generally tend to lessen the delay, expense and inconvenience to all concerned. Reflecting this policy, the Supreme Court has said:

Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.

United Mine Workers of America v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1332-33 (8th Cir. 1974).

A little over one decade ago, the Eighth Circuit Court of Appeals explained that joinder of plaintiffs is proper "if (i) they assert claims 'with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences;' and (ii) 'any question of law or fact common to all plaintiffs will arise in the action.' " In re Prempro Prod. Liab. Litig., 591 F.3d at 622 (quoting Fed. R. Civ. P. 20(a)(1)). More specifically, the Eighth Circuit Court of Appeals has explained,

In construing Rule 20, the Eighth Circuit has provided a very broad definition for the term "transaction." As stated in Mosley v. General Motors Corp., 497 F.2d 1330 (8th Cir. 1974):

"Transaction" is a word of flexible meaning. It may comprehend a series

of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.

Accordingly, all "logically related" events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence. The analogous interpretation of the terms as used in Rule 20 would permit all reasonably related claims for relief by or against different parties to be tried in a single proceeding. Absolute identity of all events is unnecessary.

Id. at 1333 (citations omitted); see also 7 Charles A. Wright et al., Federal Practice and Procedure, § 1653, at 415 (3d ed. 2001) (explaining that the transaction/occurrence requirement prescribed by Rule 20(a) is not a rigid test and is meant to be "read as broadly as possible whenever doing so is likely to promote judicial economy.").

In re Prempro Prod. Liab. Litig., 591 F.3d at 622.

In Mosley, the court concluded that the ten plaintiffs had asserted a right to relief arising out of the same transactions or occurrences because "[e]ach of the ten plaintiffs alleged that he had been injured by the same general policy of discrimination on the part of [the defendants]." 497 F.2d at 1333. The court likened that situation to "a state-wide system designed to enforce the registration laws in a way that would inevitably deprive colored people of the right to vote." Id. (quoting United States v. Mississippi, 380 U.S. 128, 142, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965)). In In re Prempro Products Liability Litigation, the court concluded that manufacturers had failed to show the plaintiffs were misjoined. 591 F.3d at 623. The court was persuaded that the plaintiffs' claims arose from a series of transactions between HRT pharmaceutical manufacturers and individuals that had used HRT drugs. Id. The court was also persuaded that their claims were logically related because they each developed breast cancer as a result of the manufacturers' negligence. 591 F.3d at 623. Even though some of the plaintiffs purchased HRT drugs from several different manufacturers, the court held the litigation likely contained common questions of law and fact, such as the causal link between HRT drugs and breast cancer. Id. Under these circumstances, the court could not hold that the plaintiffs' claims had no real connection to each other. Id.

C. Plaintiffs' Claims are Properly Joined

There are certain potentially individualized issues even for the remaining facial challenges in this case, as Defendants contend, including for example whether each Plaintiff has a sincerely held religious belief. See, e.g., United States v. Ali, 682 F.3d 705, 709 (8th Cir. 2012) ("As an initial matter, a person claiming that a governmental policy or action violates his right to exercise his religion freely must establish that the action substantially burdens his sincerely held religious belief.") (quoting Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997)); id. at 710 ("[I]n a RFRA analysis, a rule imposes a substantial burden on the free exercise of religion if it prohibits a practice that is both 'sincerely held' by and 'rooted in [the] religious belief[s]' of the party asserting the claim or defense.") (quoting United States v. Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007)). Nevertheless, Plaintiffs' claims are well within the range of claims properly joined under Rule 20(a)(1).

As to whether Plaintiffs' claims arose out of the same transaction, occurrence, or series of transactions or occurrences, see In re Prempro Prod. Liab. Litig., 591 F.3d at 622 (first requirement under Rule 20(a)(1)), each of the thirty-six Plaintiffs alleges that he or she has been injured by the same general religiously discriminatory COVID-19 vaccination mandate. Cf. Mosley, 497 F.2d at 1333 ("Each of the ten plaintiffs alleged that he had been injured by the same general policy of discrimination on the part of [the defendants]."). What is at issue in this case is a nationwide policy designed to prevent the spread of COVID-19 that Plaintiffs allege is designed in a way that would inevitably lead to denial of religious exercise rights. Cf. id. (likening the conduct at issue to "a state-wide system designed to enforce the registration laws in a way that would inevitably deprive colored people of the right to vote"). The flexible meaning of "transaction" applicable under Rule 20(a)(1) certainly encompasses the circumstances in this case. In re Prempro Prod. Liab. Litig., 591 F.3d at 622.

Also, as in In re Prempro Products Liability Litigation, Defendants have failed to show Plaintiffs were misjoined where Plaintiffs' claims arose from a series of transactions between the Air Force and individual service members based on the same COVID-19 vaccination mandate, and their claims are logically related because each may be subject to discharge for failure to obtain an exemption and to comply with that policy. 591 F.3d at 623. "Absolute identity of all events is unnecessary." Id. at 622 (internal quotation marks and citations omitted). In this case there are also undoubtedly common questions of law and fact related to the validity or constitutionality of the COVID-19 vaccination policy, including whether the Air Force has a compelling interest and whether the Air Force's policy is the least restrictive means of furthering that compelling interest. Id. at 622 (second requirement under Rule 20(a)(1)).

The Court finds Defendants' arguments concerning more prudential issues equally unpersuasive. This is a case in which a single trial will almost certainly tend to lessen the delay, expense, and inconvenience to all concerned. Mosley, 497 F.2d at 1332. Judicial economy will plainly be served by resolving this case in a single proceeding rather than thirty-six separate ones. See In re Prempro Prod. Liab. Litig., 591 F.3d at 622

The part of Defendants' Motion seeking severance of the individual Plaintiffs' claims is denied.

V. VENUE

Defendants argue that once the Court grants severance of the case into thirty-six separate, single-plaintiff actions, each individual Plaintiff will need to meet the venue requirements to proceed in the District of Nebraska. Filing 41 at 32. Defendants contend that at least sixteen Plaintiffs have no connection to this forum, so their claims should be dismissed or transferred pursuant to Rule 12(b)(3) and 28 U.S.C. § 1406(a). Filing 41 at 32-33. This argument was entirely contingent on the Court severing the individual Plaintiffs' claims, which the Court has not done. Defendants concede that if the Court does not sever Plaintiffs' claims, venue remains proper in this forum, because at least one Plaintiff resides here. See Filing 41 at 34 (citing Exxon Corp. v. F.T.C., 588 F.2d 895, 898-99 (3d Cir. 1978), overruled in part on other grounds by Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d Cir. 2014)).

Thus, the part of Defendants' Motion seeking dismissal of the claims of sixteen Plaintiffs for improper venue is denied.

VI. CLAIMS AGAINST THE NATIONAL GUARD ADJUTANT GENERALS

A. The Parties' Arguments

The last issue raised in Defendants' Motion is their contention that Plaintiffs have improperly named as Defendants David A. Weishaar, the Adjutant General of the Kansas National Guard, and Daryl Bohac, the Adjutant General of the Nebraska National Guard. Filing 41 at 34. Defendants argue that under the circumstances of this case as it relates to the National Guard, and its decisions related to personnel actions or conditions of employment of members of the National Guard, the only proper party defendant is the United States. Filing 41 at 34-35 (citing 10 U.S.C. § 10508(b)(3)(c)).

Plaintiffs counter that the Adjutant Generals are properly named because Defendants fail to grasp the unique nature of the National Guard and minimize the underlying claims as mere employment actions. Filing 77 at 35. Plaintiffs argue that Air National Guard Plaintiffs have not been ordered into active federal duty, so the Adjutant Generals remain the principal authorities who control the Guard in Nebraska and Kansas, respectively. Filing 77 at 37. They argue further that the two Adjutant Generals—not the other Defendants in this case—have the authority to discipline or impose any penalties upon Plaintiffs who are members of the Nebraska or Kansas Air National Guard. Filing 77 at 37. Finally, they assert that the statute cited by Defendants is inapplicable, because this lawsuit emanates from Defendants' violations of the RFRA and the Free Exercise Clause, so adverse employment actions are only incidental to those violations. Filing 77 at 37-38.

In reply, Defendants assert that whether the Guard members have been federalized is irrelevant. Filing 86 at 20. Instead, they reiterate that the statute they cited makes clear that any action "arising from . . . such a personnel action" shall be brought against the United States as "the sole defendant." Filing 86 at 20 (citing 10 U.S.C. § 10508(b)(3)).

B. Discussion

The statute on which Defendants rely, 10 U.S.C. § 10508, has not been construed or applied by any federal court. Thus, the meaning of the statute is a matter of first impression. Despite that circumstance, Defendants devote barely one page of total briefing to the issue. See Filing 41 at 34-35 (three sentences); Filing 86 at 20 (seven sentences). Defendants rely on what they believe is the plain meaning of 10 U.S.C. § 10508(b)(3). See Filing 86 at 20.⁹ While Plaintiffs' briefing of the issue is more extensive, like Defendants' briefing, it does not address this case as it now stands. This case now presents only facial challenges to the COVID-19 vaccination mandate under the Free Exercise Clause and the RFRA after the dismissal above of all as-applied challenges.

9 This provision, part of a title concerning organization and administration of reserve components and a chapter establishing the National Guard Bureau, provide in pertinent part as follows:

(b) Personnel for functions of National Guard Bureau.—

* * *

(3) Administrative actions.--Notwithstanding the Intergovernmental Personnel Act of 1970 (42 U.S.C. 4701 et seq.) and under regulations prescribed by the Chief of the National Guard Bureau, all personnel actions or conditions of employment, including adverse actions under title 5, pertaining to a person appointed, employed, or administered by an adjutant general under this subsection shall be accomplished by the adjutant general of the jurisdiction concerned. For purposes of any administrative complaint, grievance, claim, or action arising from, or relating to, such a personnel action or condition of employment:

(A) The adjutant general of the jurisdiction concerned shall be considered the head of the agency and the National Guard of the jurisdiction concerned shall be considered the employing agency of the individual and the sole defendant or respondent in any administrative action.

(B) The National Guard of the jurisdiction concerned shall defend any administrative complaint, grievance, claim, or action, and shall promptly implement all aspects of any final administrative order, judgment, or decision.

(C) In any civil action or proceeding brought in any court arising from an action under this section, the United States shall be the sole defendant or respondent.

(D) The Attorney General of the United States shall defend the United States in actions arising under this section described in subparagraph (C).

(E) Any settlement, judgment, or costs arising from an action described in subparagraph (A) or (C) shall be paid from appropriated funds allocated to the National Guard of the jurisdiction concerned.

10 U.S.C. § 10508(b)(3).

The federal government may add COVID-19 vaccination to the list of standards prescribed for National Guardsmen who can qualify as "ready" for federal service under 32 U.S.C. § 110. Plaintiffs have not alleged anywhere in their Complaint or in their briefing that the Adjutant Generals had any involvement in the promulgation of the COVID-19 vaccination mandate. "Excluding persons from National Guard duties and membership also appears to be within the scope of the President's [32 U.S.C.] § 108 authority to withhold funding," Abbott v. Biden, No. 6:22-CV-00003, 608 F.Supp.3d 467, 473 (E.D. Tex. June 24, 2022), for example, if they do not meet federal "readiness" standards. More specifically,

[t]hat exclusion does not remove the person from the militia organized by a State. It does not create any penalties for the person continuing to serve in the state militia, albeit without federal funding. It simply refuses to recognize the person as among the individuals who meet the statutory definition of the Army National Guard or the Air National Guard, as those definitions embrace only "that part" of the militia of the States that is organized at federal expense and is federally recognized. 32 U.S.C. §§ 101(4), (6).

Abbott, 608 F.Supp.3d at 473. "There is no prospect of federal officials excluding individuals from an organized militia, as a State is free to organize the militia into a defense force funded solely by the State" pursuant to 32 U.S.C. § 109(c), and it does not appear that a federal official may imprison a non-federalized militia member for failure to comply with the vaccination requirement. Id. at 474; see also Oklahoma v. Biden, 577 F.Supp.3d 1245, 1259-60 (W.D. Okla. 2021) ("In broad terms (and at the risk of some oversimplification as to matters not relevant here), the command authority of the Governor, the Adjutant General, and their subordinates includes such matters as recruiting, training and pressing Guard units into service when necessary within the boundaries of the state, while federal officers, not the least of whom is the President, have the authority required to ensure that the Guard, as a statutory reserve component of the U.S. armed forces, is ready to be pressed into federal service without delay, and as seamlessly as possible, in case of need.").

Thus, Plaintiffs may be correct that only the Air National Guard Adjutant Generals have the authority to discharge National Guard members, but such discharge is outside the scope of the remaining facial challenges. What is inside the scope of the remaining facial challenges is the Secretary of the Air Force's Supplementary Guidance for Members of the Air National Guard. Filing 1-1 at 12-13. The Supplementary Guidance provides in pertinent part,

Immediately following notification of final adjudication, ANG members must comply with the vaccination requirement. Those with a remaining Military Service Obligation who continue to refuse

vaccination, will be involuntarily assigned to the IRR.

Filing 1-1 at 13. In other words, the Supplementary Guidance is within the federal authority to determine "readiness" of National Guard members for federal service. Abbott, 608 F.Supp.3d at 473; Oklahoma, 577 F.Supp.3d at 1259-60. State Adjutant Generals do not have such authority.

Thus, the Court concludes that Defendants David A. Weishaar, the Adjutant General of the Kansas National Guard, and Daryl Bohac, the Adjutant General of the Nebraska National Guard, are not proper parties to this action as it now stands. Defendants' Motion is granted as to dismissal of these Defendants.

VII. CONCLUSION

The Court concludes that Plaintiffs' "facial" challenges to the Air Force's COVID-19 vaccination mandate under the Free Exercise Clause and the RFRA are both justiciable and ripe. On the other hand, Plaintiffs' "as-applied" challenges to that mandate under the Free Exercise Clause and the RFRA are neither ripe nor justiciable, and those claims are dismissed. The part of Defendants' Motion seeking severance of the individual Plaintiffs' claims is denied. The part of Defendants' Motion seeking dismissal of the claims of sixteen Plaintiffs for improper venue, which was contingent on severance, is denied. Finally, Plaintiffs' claims against Defendants David A. Weishaar, the Adjutant General of the Kansas National Guard, and Daryl Bohac, the Adjutant General of the Nebraska National Guard, are dismissed, as those Defendants are not proper parties to this action as it now stands. Under these circumstances.

IT IS ORDERED that Defendants' April 15, 2022, Motion to Dismiss and Motion to Sever, Filing 37, is granted in part and denied in part.