Opinion
Case No. CV 22-1151-DMG (AGRx)
03-03-2022
Mark SHORT v. David BERGER, et al.
William G. Short, Attorney at law, Ojai, CA, Catherine W. Short, Life Legal Defense Foundation, Ojai, CA, for Mark Short. Reginald Maurice Skinner, US Department of Justice, Civil Division, Washington, DC, Stuart Justin Robinson, US Department of Justice, Civil Division, San Francisco, CA, Amy Powell, AUSA - Office of US Attorney, Civil Division, Raleigh, NC, for David Berger, Carlos Del Toro. Stuart Justin Robinson, US Department of Justice, Civil Division, San Francisco, CA, for David Ottignon.
William G. Short, Attorney at law, Ojai, CA, Catherine W. Short, Life Legal Defense Foundation, Ojai, CA, for Mark Short.
Reginald Maurice Skinner, US Department of Justice, Civil Division, Washington, DC, Stuart Justin Robinson, US Department of Justice, Civil Division, San Francisco, CA, Amy Powell, AUSA - Office of US Attorney, Civil Division, Raleigh, NC, for David Berger, Carlos Del Toro.
Stuart Justin Robinson, US Department of Justice, Civil Division, San Francisco, CA, for David Ottignon.
Proceedings: IN CHAMBERS—ORDER RE PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE I.
INTRODUCTION
On February 18, 2022, Plaintiff Mark Short filed a Complaint and an Ex Parte Application ("EPA") for a temporary restraining order ("TRO") against Defendants David Berger, Commandant of the United States Marine Corps ("USMC"), and Carlos Del Toro, Secretary of the Navy. [Doc. ## 1-2.] Plaintiff—an officer in the USMC—seeks to enjoin Defendants from disciplining him for his failure to receive a COVID-19 vaccine. He alleges that Defendants’ refusal to grant him a religious accommodation for an exemption from the USMC's COVID-19 vaccine mandate violates his rights under the Free Exercise Clause of the First Amendment, the Religious Freedom Restoration Act ("RFRA"), the Administrative Procedures Act ("APA"), and 10 U.S.C. section 1107a. See Compl.
On February 20, 2022, the Court granted Plaintiff a TRO for the purpose of maintaining the status quo to allow for full, albeit expedited, briefing on a motion for preliminary injunction ("MPI"). [Doc. # 14 ("TRO Order").] The Court emphasized that its assessment of the merits was "extremely limited"—it merely found that Plaintiff raised issues that warranted full briefing, and that the limited harm to Defendants from a brief preservation of the status quo for two weeks was outweighed by the potential harm to Plaintiff in the interim absent a TRO. Id.
Defendants filed their Opposition to the MPI on February 24, 2022. [Doc. # 17.] Plaintiff filed his Reply on February 28, 2022. [Doc. # 19.] The Court held a hearing on the motion on March 3, 2022. For the following reasons, Plaintiff's MPI is DENIED and the TRO is VACATED .
II.
FACTUAL BACKGROUND
The COVID-19 pandemic has wreaked havoc on every facet of society over the past two years, and the United States military is no exception. As of February 22, 2022, there have been 385,425 cases of COVID-19 throughout the Department of Defense ("DoD"), and 93 servicemembers have died from the disease. Stanley Decl. ¶ 3 [Doc. # 17-1 at 146 ].
All page references herein are to the page numbers inserted by the CM/ECF system.
In early 2021, vaccines against COVID-19 became available to the public, and in August 2021, the Pfizer vaccine received full approval from the U.S. Food and Drug Administration ("FDA"). An unvaccinated person has a 10-times greater chance of getting infected with the virus, a 17-times greater chance of getting hospitalized, and a 20-times greater chance of dying compared to a vaccinated person. Id. at ¶ 16. Among active-duty military servicemembers, between July and November 2021, those who were less than fully vaccinated were 14.6-times more likely to be hospitalized than those who were fully vaccinated. Id. at ¶ 18. Of the 93 deaths in the military from COVID-19, all but 5 were completely unvaccinated, and of those 5, only 2 were fully vaccinated and none were boosted. Id. at ¶ 3.
On August 24, 2021, following the FDA's approval of the Pfizer vaccine, the Secretary of Defense directed the branches of the military to add the COVID-19 vaccine to the list of vaccines required for servicemembers, and to implement inoculations consistent with DoD's preexisting immunization program. See Robinson Decl, Ex. 2 [Doc. # 17-1 at 7]. On August 30, 2021, the Department of the Navy issued its implementing policy for the Navy and USMC. See id. , Ex. 6 [Doc. # 17-1 at 78.] The policy noted that "[v]accination is the most effective tool we have to prevent widespread manifestation of COVID-19 in our force." Id. It required all active duty servicemembers to be fully vaccinated within 90 days and stated that "failure to comply is punishable as a violation of a lawful order under Article 92, Uniform Code of Military Justice, and may result in punitive or adverse administrative action or both." Id. The USMC issued further guidance on September 1, which provided for the availability of medical and administrative exemptions from the mandate. Id. , Ex. 7 [Doc. # 17-1 at 84].
Among the administrative exemptions officially provided are those for religious accommodation. Huntley Decl. ¶ 12 [Doc. # 17-1 at 96-97]. Religious accommodation requests are assessed on a "case-by-case basis," but the reviewer may also consider the "individual and the cumulative effects of granting similar religious accommodation requests on the necessary elements of mission accomplishment." Id. If an initial request is denied, the servicemember may appeal the decision to the Commandant of the USMC. Id.
As of February 3, 2022, the USMC had denied 3,458 initial requests for religious accommodation where a chaplain had determined that the servicemember's religious belief was sincere. Reid Decl., Ex. 1 [Doc. # 2-3 at 16]. No initial requests have been granted. Id. Three appeals have been granted. Id. The USMC has granted 232 temporary medical exemptions, and 21 permanent medical exemptions. Id.
Plaintiff is an active duty First Lieutenant in the USMC, stationed in Okinawa, Japan. Short Decl. ¶ 2 [Doc. # 2-2]. On September 17, 2021, he submitted a request for a religious accommodation from the vaccination requirement, based on his objections to the Pfizer vaccine because of his understanding that it gained approval through testing on aborted fetal cells. Id. at ¶ 6. Three squadron Commanders reviewed his request, with two recommending denial and one recommending approval. Short Decl., Ex. A [Doc. # 2-2 at 7-9]. A USMC chaplain interviewed Plaintiff and found his religious belief to be sincere. Id. at 12-13. In a letter from the Assistant Deputy Commandant for Manpower and Reserve Affairs, Plaintiff's request for an accommodation was denied. Id. , Ex. B [Doc. # 2-2 at 20]. The adjudicator determined that "there is no less-restrictive way of accommodating [Plaintiff's] request that ensures military readiness and the preservation of the health of the force." Id. Plaintiff appealed this decision. Id. , Ex. D [Doc. # 2-2 at 22]. He did not face any adverse disciplinary actions pending his appeal. See Short Decl. ¶ 15 (describing how discipline has yet to occur).
The letter was signed by a Michael Strobl "for" David A. Ottignon, the Assistant Deputy Commandant. Short Decl. ¶ 7, Ex. B [Doc. # 2-2 at 20].
On February 15, 2022, E. M. Smith, the Assistant Commandant of the UMSC denied Plaintiff's appeal. Id. , Ex. G ("Appeal Denial") [Doc. # 2-2 at 66-69]. The Appeal Denial ratified the initial denial decision, in response to Plaintiff's objection that the initial decisionmaker did not have authority to adjudicate his request. Id. at 66, 68. It also found that the vaccination requirement does not substantially burden Plaintiff's religious belief because fetal stem cells are not used in the Pfizer vaccine, and if Plaintiff has concerns with mRNA technology generally, he may receive the Johnson & Johnson vaccine. Id. at 67. The Appeal Denial also found that even if Plaintiff's sincere religious beliefs were substantially burdened by vaccination, the military has a compelling interest in maintaining military readiness and the health and safety of the force, and no less restrictive means than Plaintiff's vaccination would achieve these interests. Id. The Denial discussed the rise of the Delta and Omicron variants of COVID-19, the fact that Plaintiff works primarily indoors in close proximity to other service members and cannot work remotely, Plaintiff works in a deployable unit and therefore must be personally ready to deploy to austere environments on short notice, and measures such as masking, testing, and social distancing are less effective than vaccination and are incompatible with the demands of military life for active-duty Marines such as Plaintiff. Id. at 68.
Plaintiff was notified of this decision on February 17 and was given seven days to receive the first dose of the vaccine. Id. , Ex. H [Doc. # 2-2 at 70]. The notice warned that this constituted a "punitive lawful order" and that "[f]ailure to comply with it may result in adverse punitive or administrative action." Id.
In general, Marines who refuse to get vaccinated without an approved exemption are processed for "separation," based either on "convenience of the government" or on misconduct. Huntley Decl. ¶¶ 15, 20. Separation proceedings for officers with fewer than six years of service, which includes Plaintiff, must be completed within 30 days and involve written notice and an opportunity to submit written matters for consideration. Id. at ¶¶ 18-19; Short Decl. ¶ 14. According to Plaintiff, during the pendency of separation proceedings, he would be placed on the "Officer Disciplinary Notebook" ("ODN"), which will make him ineligible for deployment, promotion, military education boards, career level schools, and "all other normal career progressions." Short Decl. ¶ 15.
III.
LEGAL STANDARD
A plaintiff seeking preliminary injunctive relief must show that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Toyo Tire Holdings of Ams. Inc. v. Cont'l Tire N. Am., Inc. , 609 F.3d 975, 982 (9th Cir. 2010) (citing Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). When the government is a party, the last two prongs of the injunction analysis merge. Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir. 2014). Under the Ninth Circuit's "sliding scale" approach, the four "elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011). An injunction is therefore also appropriate when a plaintiff raises "serious questions going to the merits," demonstrates that "the balance of hardships tips sharply in [their] favor," and "shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Id. at 1135 (quoting Lands Council v. McNair , 537 F.3d 981, 987 (9th Cir. 2008) ).
IV.
DISCUSSION
A. Likelihood of Success on the Merits
1. Justiciability
Before proceeding to assess the merits of Plaintiff's claims, the Court must first determine whether they are justiciable. The Ninth Circuit has held that when a claim challenges a military decision, the plaintiff must first (1) allege a violation of a recognized constitutional right, a federal statute, or military regulations, and (2) exhaust available intraservice remedies. Wenger v. Monroe , 282 F.3d 1068, 1072 (9th Cir. 2002) (citing Mindes v. Seaman , 453 F.2d 197 (5th Cir. 1971) ) (the " Mindes test"). If the plaintiff satisfies both of these two threshold requirements, the Court then determines whether judicial review is appropriate by weighing the following factors: (1) the nature and strength of the plaintiff's claim; (2) the potential injury to the plaintiff if review is refused; (3) the extent of interference with military functions; and (4) the extent to which military discretion or expertise is involved. Id.
Defendants concede that Plaintiff has alleged constitutional and statutory violations. Opp. at 18. Plaintiff has not exhausted administrative remedies, however. Although he has received a decision on his appeal, he still must undergo separation proceedings before any permanent adverse consequences are imposed. Those proceedings enable him to submit a written rebuttal, as Plaintiff himself admits. See Short Decl. ¶ 14. Plaintiff dismissively characterizes the process as a mere routing of paperwork, with "only four signatures stand[ing] between him and separation." Reply at 8. But those four signatures amount to four separate gates through which Plaintiff must pass before facing separation, any one of which could decide to close the process upon review of Plaintiff's written submissions. See Diraffael v. California Mil. Dep't , No. CV 10-07240-DDP (VBKx), 2011 WL 13274364, at *3 (C.D. Cal. Mar. 21, 2011) ("Because ... discharge proceedings are still underway and to date no final determination has been reached, the present suit is premature.").
Plaintiff argues that he need not continue with administrative remedies because they would be futile. See Wenger , 282 F.3d at 1073 (administrative exhaustion not required "if the intraservice remedies do not provide an opportunity for adequate relief" or "if administrative appeal would be futile"). He devotes much of his briefs to arguing that the USMC's religious accommodation process is a sham, pointing to the facts that no initial requests for exemption have been granted and that his initial denial letter was a form template that is identical to the denials other servicemembers received. While no initial requests have been granted, three appeal requests have been granted. Though the rate of success on appeal is admittedly quite low, it is not zero. And his Appeal Denial letter was individually tailored, discussing the particular requirements and limitations of his job—e.g. , that he must work indoors in close proximity to other servicemembers, and he must be ready to deploy at a moment's notice. Additionally, Plaintiff's evidence of futility focuses on the wrong administrative process. The process he has left to exhaust is the separation proceeding. He provides no evidence, other than argumentative conjecture, that separation proceedings are always decided against the appealing servicemember, such that engaging in the process would be futile.
At the hearing, Plaintiff insisted that the three granted exemptions were for Marines who were already nearing separation, and so they are irrelevant. There is no evidence in the record supporting this factual contention. Even if it is true, however, it does not change the analysis—the exemptions are still relevant. The fact remains that the requests are individually assessed, even if to date the military has found that it can only accommodate an exemption for those who are close to separation without undermining its compelling interests.
Servicemembers may also be excused from administrative exhaustion "if the petitioner will suffer irreparable harm if compelled to seek administrative relief." Wenger , 282 F.3d at 1073. For the reasons discussed below in Part IV.B., any harms Plaintiff will suffer pending separation proceedings are not irreparable.
Even if exhaustion were futile, Plaintiff must still overcome the remaining Mindes factors. The first factor is the nature and strength of the plaintiff's claims. Plaintiff only discusses his RFRA claim in any detail. As the Court examines below, Plaintiff's RFRA claim is not likely to be meritorious. Nonetheless, because he has shown a substantial burden on his sincerely held religious belief such that RFRA's "strict scrutiny" is triggered, and the claim is not frivolous, this factor is neutral. The second factor involves the potential injury to Plaintiff absent review. This is also discussed in more detail below—any harms Plaintiff will face are not irreparable or certain to occur. The second factor weighs against judicial review.
The third and fourth factors weigh strongly against judicial review. They look to the extent that the requested judicial action would interfere with military functions and the extent to which military discretion or expertise is involved. Forcing the USMC to adjust to the risks of including unvaccinated Marines in its ranks is a substantial interference. Though Plaintiff is just one person, the cumulative effect of accommodating all similar requests could require integrating over 3,000 additional unvaccinated servicemembers. Evaluating the risks to the health and safety of other soldiers, as well as to the combat readiness of the force, posed by the inclusion of unvaccinated Marines in the ranks necessarily involves "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force[, which] are essentially professional military judgments." Gilligan v. Morgan , 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973) ; see also Bryant v. Gates , 532 F.3d 888, 899 (D.C. Cir. 2008) ("military decisions and assessments of morale, discipline, and unit cohesion ... are well beyond the competence of judges") (Kavanaugh, J., concurring). Moreover, when executive officials "undertake to act in areas fraught with medical and scientific uncertainties," their judgments "should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health." S. Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 1614, 207 L.Ed.2d 154 (2020) (Roberts, C.J., concurring) (internal quotation marks, alterations, and citations omitted).
The Fifth Circuit, in a very recent opinion involving an analogous challenge to the Navy's failure to accommodate religious exemptions to its vaccine mandate, reached a different conclusion. See U.S. Navy Seals 1-26 v. Biden , 27 F.4th 336 (5th Cir. 2022). It reasoned that the Navy has already granted hundreds of medical exemptions, and so it is "illogical" that the plaintiffs’ religious-based refusal to get vaccinated would impede military function any more than would other servicemembers who are just as unvaccinated. Id. at 349 (citing Air Force Officer v. Austin , 588 F.Supp.3d 1338, 1350 (M.D. Ga. 2022) ). First, the record here reflects different numbers—only 21 permanent medical exemptions have been granted in the USMC as of early February, compared to almost 3,500 requests for religious exemptions. Only permanent medical exemptions are analogous to religious exemptions, because a religious belief is not likely to be temporary, and a temporary accommodation is much different—and likely much easier to accommodate—than a permanent one. Second, the fact that the military has already accommodated some unvaccinated members could be all the more reason why it has a compelling interest in avoiding a slide down the slippery slope of potentially thousands more accommodations. As the Court discusses below in greater detail, "it may be feasible for [the military] to manage the COVID-19 risks posed by a small set of objectively defined and largely time-limited medical exemptions. In contrast, it could pose a significant barrier to effective disease prevention to permit a much greater number of permanent religious exemptions." We The Patriots USA, Inc. v. Hochul , 17 F.4th 266, 286 (2d Cir. 2021) ; see also Doe v. San Diego Unified Sch. Dist. , 19 F.4th 1173, 1178 (9th Cir. 2021) ("if [the number of medical exemptions sought] is very small and the number of students likely to seek a religious exemption is large, then the medical exemption would not qualify as ‘comparable’ to the religious exemption in terms of the ‘risk’ each exemption poses").
Again, the Court must consider the implications if the USMC were to accommodate all those similarly situated to Plaintiff who requested a religious exemption.
At the hearing, Plaintiff's counsel argued that his religious accommodation may also be temporary, because the military may lift its vaccination requirement as the pandemic wanes. This is entirely speculative. The military has longstanding, indefinite vaccination requirements for a number of conditions that are not in a pandemic stage.
Plaintiff argues that his unit, even now, is less than 70% fully medically ready and that he has been permitted to participate in military exercises, notwithstanding his unvaccinated status. Supp. Short Decl. ¶ 16 [Doc. # 19-1]. To adopt that as an acceptable benchmark, however, consigns the Marine Corps to mediocrity. The Court is not inclined to restrain the USMC from seeking to improve upon that percentage or prevent it from declining even lower.
In a particularly striking example of the unelected federal judiciary wading into areas fraught with medical and scientific uncertainty, the Fifth Circuit also questions "the comparative efficacy of vaccination" by pointing to anecdotes of COVID-19 outbreaks among fully vaccinated units. Navy Seals , 27 F.4th at 349 n.17 ; see also Air Force Officer , 588 F.Supp.3d at 1354 ("Does a COVID-19 vaccine really provide more sufficient protection? This is especially curious given the number of people who have been and continue to be infected after becoming fully vaccinated and receiving a booster."). This Court is no expert in viral transmission either, but purely as a matter of logic, simply because vaccination is not perfect in preventing onset of infection does not mean that it is not far superior to forgoing vaccination altogether—especially where the military's own experience has shown it to prevent serious illness or death. See Stanley Decl. ¶ 3 (unvaccinated servicemembers are 14.6 times more likely to be hospitalized than those who are fully vaccinated).
The Fifth Circuit also dismissed the concerns about interfering with professional military judgments by quoting another court that said, "generals don't make good judges—especially when it comes to nuanced constitutional issues." Navy Seals , 27 F.4th at 349 (quoting Air Force Officer , 588 F.Supp.3d at 1351 ) (alteration omitted). The Air Force Officer court reasoned that whether the service's vaccine mandate withstands strict scrutiny is a "purely legal matter" that "doesn't require ‘military expertise or discretion.’ " 588 F.Supp.3d at 1351 (quoting Mindes , 453 F.2d at 201 ). By this logic, any time a court evaluates any cause of action, it addresses a purely legal matter. The whole point of the Mindes doctrine is that sometimes, when the Court does its job of applying law to facts, it wades into areas of professional military judgment. In fact, the strict scrutiny test is highly factual. Articulating compelling government interests involves plenty of factual considerations, as does assessing whether less restrictive means are available. If the Court were to say that the military does not have a compelling interest in preventing the spread of COVID-19, or that there are less restrictive ways to achieve that goal other than by requiring Plaintiff to get vaccinated, it would necessarily involve itself in "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force." Gilligan , 413 U.S. at 10, 93 S.Ct. 2440. Binding precedent indicates that the Court must tread carefully where issues of military preparedness are concerned.
Under the circumstances of this case, the Court finds that Plaintiff has not shown that his claims are justiciable.
2. RFRA
Although the Court finds that Plaintiff has not made a sufficient showing of justiciability, because the justiciability test is intertwined with the merits, and for the sake of thoroughness, the Court next turns to the merits of Plaintiff's RFRA claim. Plaintiff has not demonstrated that his RFRA claim is likely to succeed on the merits.
Plaintiff only seriously briefs the merits of his RFRA claim in his motion, so the Court only addresses this claim. Additionally, RFRA provides broader religious freedom protections that the Free Exercise Clause does, so if Plaintiff's RFRA claim fails, then his Free Exercise claim necessarily does too. See Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 693-95, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). The Court declines to take up Plaintiff's belated request in his Reply to extend the TRO to allow him to brief his other claims, when he has made no initial showing whatsoever as to the likelihood of success of those claims. See Reply at 24; see also Zamani v. Carnes , 491 F.3d 990, 997 (9th Cir. 2007) ("The district court need not consider arguments raised for the first time in a reply brief.").
"Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person's exercise of religion, ‘even if the burden results from a rule of general applicability.’ " Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 424, 126 S.Ct. 1211, 163 L.Ed.2d 1017, (2006) (quoting 42 U.S.C. § 2000bb-1(a) ). "The only exception recognized by the statute requires the Government to satisfy the compelling interest test—to ‘demonstrat[e] that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’ " Id.
Assuming that mandatory vaccination substantially burdens Plaintiff's exercise of religion, Defendants bear the burden of showing that requiring Plaintiff to receive a vaccination as a condition of his service, over his religious objection, is the least restrictive means of furthering a compelling government interest. Plaintiff acknowledges that the government has a compelling interest in maintaining the military readiness of the USMC, see Reply at 17, which is the same interest that the USMC asserted in denying Plaintiff's request for an exemption. See Appeal Denial at 67. And the government certainly has a compelling interest in preventing the spread of COVID-19 amongst members of the Marine Corps. See Roman Cath. Diocese of Brooklyn v. Cuomo , ––– U.S. ––––, 141 S. Ct. 63, 67, 208 L.Ed.2d 206 (2020) ("Stemming the spread of COVID–19 is unquestionably a compelling interest[.]").
Defendants do not meaningfully contest that vaccination would burden Plaintiff's sincerely held religious belief, notwithstanding that the Appeal Denial seemed to do so.
The pertinent question is whether requiring Plaintiff to be vaccinated is the least restrictive means of furthering these interests in military readiness and the health and safety of the force. Defendants argue that no other preventative measures can provide the same level of safety and readiness—masking, surveillance testing, and/or social distancing are either less protective than vaccination or are incompatible with Plaintiff's job duties. This is the same justification that the USMC gave for denying Plaintiff's exemption. "[W]hen evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." Goldman v. Weinberger , 475 U.S. 503, 507, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986). This deference is layered on top of the deference that courts must give to expert policymakers on matters involving complex medical or scientific uncertainties. See S. Bay , 140 S. Ct. at 1614 (Roberts, C.J., concurring). Accordingly, the Court will not question the USMC's judgment that only vaccination will allow Plaintiff to perform his essential duties during the pandemic with an acceptable level of risk to the safety and effectiveness of both himself and his unit. Given the empirical evidence in the record of the vaccine's efficacy in preventing serious illness, hospitalization, and death from COVID-19, the USMC has used an evidence-based approach in its reliance on vaccination. It is also reasonable to conclude—and certainly not the Court's role to micromanage—that some servicemembers, including Plaintiff, need to be able to work in close quarters with others and to deploy to environments where social distancing and surveillance testing are not possible.
The Fifth Circuit framed the question slightly differently, in terms of whether the government has a compelling interest in requiring the particular plaintiffs to be vaccinated over their religious objections. Navy Seals , 27 F.4th at 351-52. Regardless of the precise formulation, the analysis functionally proceeds the same.
The legislative history of RFRA indicates that Congress intended the military deference principles of Goldman to continue to apply under the statute. See S. Rep. No. 103-111, at 12 (1993), 1993 U.S.C.C.A.N. 1892, 1901 (discussing Goldman and "intend[ing] and expect[ing] that such deference will continue under this bill"). In Singh v. McHugh , 185 F. Supp. 3d 201 (D.D.C. 2016), the court found that, under RFRA, it "must credit the Army's assertions and give due respect to its articulation of important military interests," though it could not rely entirely on the military leader's "mere say-so" and must still go through the strict scrutiny test. Id. at 222 (quoting Holt v. Hobbs , 574 U.S. 352, 368, 135 S.Ct. 853, 190 L.Ed.2d 747 (2015) ). That it is what the Court must do here. It does not rely entirely on the USMC's judgment in a conclusory fashion and still undertakes the strict scrutiny analysis, but along the way it credits evidence-based assertions as to how best to further important military interests.
Plaintiff does not advance any particular less restrictive means that are as effective against a highly infectious virus and compatible with his mission. Instead, notwithstanding the wide deference afforded to military officials’ professional judgments, Plaintiff attempts to poke a number of holes in the USMC's asserted interest in requiring him to be vaccinated. Perhaps most prominently, Plaintiff argues that the USMC's refusal to grant him—or almost anyone else—a religious exemption is undermined by the fact that it grants medical exemptions to others. The Fifth Circuit emphasized this point as well, arguing that it renders the vaccine requirement "underinclusive." Navy Seals , 27 F.4th at 352. First, on the record in this case, only 21 permanent medical exemptions have been granted, a very small number relative to the size of the force. The USMC has fully resolved only 122 religious exemption requests through the appeal as of February 3, of which it has granted three, or roughly 2.5%. See Reid Decl., Ex. 1 [Doc. # 2-3 at 16]. Applying that rate to the 1,150 appeals currently still under review, the USMC would grant about 32 religious exemption requests. That is more than the number of permanent medical exemptions. There is thus no evidence in the record of any underinclusive or disparate treatment of religious exemption requests relative to other types of exemptions.
The Fifth Circuit also seemed to miss the important distinction between a temporary accommodation and a permanent one. See Navy Seals , 27 F.4th at 352 ("[The Navy] has granted temporary medical exemptions to 17 Special Warfare members, yet no reason is given for differentiating those service members from Plaintiffs.") (emphasis added).
The appeal ruling is in fact the only decision that triggers RFRA and strict scrutiny, because only after the appeal is denied do Marines actually face the adverse consequences that amount to a substantial burden on their religion. And those Marines who choose not to appeal have certainly not exhausted administrative remedies.
But even if the USMC grants more medical exemptions than it does religious exemptions, that does not necessarily mean that it fails the least-restrictive means test. If the USMC were to accommodate all religious exemptions based on sincerely held religious beliefs, it would have granted nearly 3,500 of them thus far—significantly more than the 21 permanent medical exemptions. In upholding New York's statewide vaccine mandate for healthcare workers, which allowed for medical exemptions but not religious ones, the Second Circuit held that evidence of a small number of medical exemptions relative to a much larger amount of religious exemption requests "suggests that the medical exemption is not ‘as harmful to the legitimate government interests purportedly justifying’ the Rule as a religious exemption would be." We The Patriots , 17 F.4th at 286 (citation omitted). The Ninth Circuit applied this same reasoning to a school vaccine mandate that allowed medical exemptions but not religious ones. See Doe , 19 F.4th at 1178 ("[I]f that number [of medical exemptions] is very small and the number of students likely to seek a religious exemption is large, then the medical exemption would not qualify as ‘comparable’ to the religious exemption in terms of the ‘risk’ each exemption poses to the government's asserted interests."). Neither schools nor the state's regulation of the healthcare industry are entitled to the level of deference that the military is. To the extent the USMC accommodates medical exemptions but not religious ones, that is therefore not a sign of underinclusiveness or discriminatory treatment, but rather is simply a reflection of what is feasible while still maintaining the government's interest. See Dunn v. Austin , No. 2:22-cv-00288 (E.D. Cal. Feb. 22, 2022), Hrg. Tr. at 42:11-18 [Doc. # 18-1] (citing Doe in upholding military vaccine mandate from religious freedom challenge). This Court is bound by Ninth Circuit authority, not that of the Fifth Circuit.
We The People and Doe involved the Free Exercise Clause, not RFRA. The circuit courts therefore engaged in this analysis not in the context of the least-restrictive means test, but in determining whether the mandates were neutral rules of general applicability that did not disfavor religion. But the argument that the mandate is not the least restrictive means because its exemptions are underinclusive is essentially the same as saying that the mandate is not neutral, so the logic of those cases applies equally here. See Air Force Officer , 588 F.Supp.3d at 1355 (general applicability test of the Free Exercise Clause "[s]ound[s] familiar" to the underinclusivness argument with respect to the least-restrictive means test).
Plaintiff also argues—again, by pointing to the boilerplate denial of his initial request and to the low number of total religious exemptions granted—that the USMC has ignored RFRA's command to apply the least-restrictive means test narrowly " ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened." Gonzales , 546 U.S. at 430-31, 126 S.Ct. 1211. But the record indicates that the USMC did evaluate Plaintiff's request individually, at least at the appeal phase—the Appeal Denial discussed the specific circumstances of Plaintiff's required duties. Moreover, the USMC has granted three religious exemptions at the appeal phase (2.5% of the total it has fully resolved), demonstrating that while the exemptions are admittedly difficult to obtain, the process is not a sham. The Court defers to the USMC concerning its judgment that very few Marines have jobs that allow the service to accommodate a religious exemption.
Plaintiff also insists that the USMC failed to account for the fact that he is a healthy 26-year-old who is therefore unlikely to get seriously ill from COVID-19, even if he remains unvaccinated. Even if this were true, the USMC's primary concern in dealing with a highly infectious disease reasonably may not be that Plaintiff himself will get seriously ill, but that he will spread the virus to other Marines in his unit. Those Marines, even if fully vaccinated, can still get sick from the virus, as the Omicron surge has demonstrated. A substantial number of Marines out of commission at the same time with even a mild illness undoubtedly affects the readiness of the unit.
Notwithstanding the emphasis on individualized scrutiny, Plaintiff also makes arguments suggesting that vaccination broadly is unnecessary. He points to the fact that the USMC has not required booster shots and does not distinguish between boosted Marines and those who are fully vaccinated but not boosted. Merely because the USMC has not yet made the decision to require more vaccination does not mean that achieving a baseline level of vaccination is meaningless. Plaintiff also points out that his unit has never been deemed more than 80% fully medically ready due to various statuses unrelated to vaccination. Supp. Short Decl. ¶ 16 [Doc. # 19-1]. The implication seems to be that because a number of Marines are not medically ready at any one time, it is not a problem if Plaintiff is also not medically ready indefinitely. The fact that the unit regularly deals with medical issues preventing full readiness is all the more reason not to allow even more servicemembers to become unfit for combat.
Finally, Plaintiff argues that he has been able to serve just fine before the vaccine mandate went into effect and before it was enforced against him, and that the USMC as a whole continued to function during the pandemic and before the mandate was enacted in August 2021. See Supp. Short Decl. ¶¶ 2-9. The Fifth Circuit made a similar point, that Navy Seals deployed effectively at various stages of the pandemic without being vaccinated, and that they "engage in life-threatening actions that may create risks of equal or greater magnitude than the virus." Navy Seals , 27 F.4th at 351. Military service is inherently dangerous, but that should be all the more reason to endeavor to reduce preventable harms, not to throw up one's hands and cast aside all precautions. And merely because the military has found ways to perform its duties despite the risks of COVID-19 does not mean it must endure these risks indefinitely when there are effective means of mitigating them. Like many millions of other essential workers, the military has heroically and with great ingenuity found ways to persevere during an unprecedented deadly pandemic. But that does not mean that the military is not entitled to use the most effective means available to end its crisis footing and return to a semblance of normalcy.
The notion that the military has not been significantly impacted is also belied by the nearly 400,000 infections and 93 deaths it has incurred.
B. Irreparable Harm
As even the Air Force Officer court recognized, harms such as lost rank, duties, benefits, and pay are not irreparable because "these harms are redressable as monetary damages and therefore insufficient to obtain injunctive relief." 588 F.Supp.3d at 1356 ; see also U.S. Navy SEALs 1-26 v. Biden , 578 F.Supp.3d 822, 839 (N.D. Tex. 2022) ("While significant and life-altering, these harms do not, by themselves, rise to the level of irreparable injury."); Hartikka v. United States , 754 F.2d 1516, 1518 (9th Cir. 1985) ("loss of income, loss of retirement and relocation pay, and damage to [Plaintiff's] reputation resulting from the stigma attaching to a less than honorable discharge" are not irreparable injuries). The harms stemming from separation are also not irreparable for the additional reason that Plaintiff has an opportunity to challenge separation through the administrative process even before seeking relief in court.
The parties are cautioned not to read much into the Court's cursory review of these issues at the TRO stage, before it had the benefit of full briefing and the time to review the case law.
Plaintiff does not meaningfully rebut this point. Instead, he argues—as his supporting authorities do—that "[t]he loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury." Diocese of Brooklyn , 141 S. Ct. at 67 (quoting Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ); see also Air Force Officer , 588 F.Supp.3d at 1356. But because this Court has found that Plaintiff failed to demonstrate a sufficient likelihood of success on the merits of his religious freedom claims, there is no presumption of irreparable harm. See Marin All. For Med. Marijuana v. Holder , 866 F. Supp. 2d 1142, 1160 (N.D. Cal. 2011) ("Plaintiffs’ constitutional claims are too tenuous to support a presumption of irreparable harm.").
C. Balance of the Equities and the Public Interest
As already discussed, the military—and the public generally—undoubtedly have a strong interest in maintaining the combat readiness and health of the force, especially in these uncertain times. See Church v. Biden , 573 F.Supp.3d 118, 146-47 (D.D.C. 2021) ("The government has amply demonstrated that military readiness and unit cohesion would be unacceptably harmed should the Court preliminarily enjoin the DoD Vaccine Mandate."). Plaintiff's "pecuniary interest is all the weaker when balanced against the public's interest in public health, military readiness, and efficient administration of the federal government." Id. Plaintiff maintains that both he and the public have an interest in not violating his constitutional rights, but he has not demonstrated a likelihood that his constitutional rights will actually be violated, for all the reasons discussed above.
Assuming that Plaintiff nonetheless has an interest in preserving his religious beliefs while serving as a Marine, this case then presents the classic dilemma of balancing an individual's rights with the collective interest in health, safety, and security. The tension between these interests makes for difficult choices. Even if this is the pertinent question, it is perhaps worth remembering the familiar aphorism that one's civil liberties can only extend so far as they do not harm others. Because serving while unvaccinated poses a threat to the health and safety of his fellow Marines, Plaintiff's interest in doing so is outweighed by the public's interest in maintaining a near-fully vaccinated and near-fully medically ready force.
In essence, the compelling interests test is Congress and the Constitution's method of upholding this principle.
V.
CONCLUSION
In Goldman v. Weinberger , the Supreme Court held that the Constitution does not provide an Orthodox Jew with the right to wear a yarmulke while in uniform, out of deference to the military's professional judgment concerning "obedience, unity, commitment, and esprit de corps. " 475 U.S. at 507, 106 S.Ct. 1310. Wearing a yarmulke does not increase the risk of spreading an infectious disease. If this Court can say one thing with certainty about the nation's religious freedom laws, it is that the courts cannot treat some religious beliefs more favorably than others. Plaintiff's request for a preliminary injunction is DENIED . The TRO against Defendants is VACATED .
At the time of Goldman , the test under the Free Exercise Clause was essentially the same as the current RFRA standard.
At the conclusion of the hearing, the Court asked—merely to determine the practical import of its lifting of the TRO—whether Plaintiff had access to any FDA-approved vaccines on his base in Okinawa that he may take. The Court's question was prompted by a suggestion in Plaintiff's declaration that he may not have ready access to a vaccine, should he wish to comply with the USMC's directive. See Short Decl. ¶ 12. This led to a confusing colloquy about whether the "Comirnaty" vaccine is the same as the "Pfizer BioNTech" vaccine and whether vaccines labeled as the latter are FDA-approved. This was not the subject of briefing in this motion, but appears to be relevant to Plaintiff's claim under 10 U.S.C. section 1107(a).
As the Court noted above, see footnote 9, Plaintiff did not brief his section 1107(a) claim at all except for a cursory reference at the end of his Reply. Nor is the record developed as to these issues. To this point, the Court will merely urge, as a purely hortatory matter, that the USMC should not commence separation proceedings without giving Plaintiff a reasonable opportunity to receive an available FDA-approved vaccine, should he so choose.