Schelske v. Austin

649 F.Supp.3d 254

Robert SCHELSKE, et al., Plaintiffs, v. Lloyd J. AUSTIN, III, in his official capacity as United States Secretary of Defense, et al., Defendants.

No. 6:22-CV-049-H

United States District Court, N.D. Texas, San Angelo Division

Signed December 21, 2022

John Clay Sullivan, SIL Law PLLC, Cedar Hill, TX, Aaron Siri, Pro Hac Vice, Dana Caroline Stone, Pro Hac Vice, Elizabeth A. Brehm, Pro Hac Vice, Siri & Glimstad LLP, New York, NY, Christopher D. Wiest, Pro Hac Vice, Crestview Hills, KY, Thomas B. Bruns, Pro Hac Vice, Bruns Connell Vollmar & Armstrong LLC, Cincinnati, OH, Wendy Cox, Siri & Glimstad LLP, Austin, TX, for Plaintiffs.

Johnny Hillary Walker, III, U.S. Department of Justice, Washington, DC, Andrew Evan Carmichael, Department of Justice, Civil Division, Washington, DC, Keri Lane Berman, Zachary Anthony Avallone, DOJ-Civ, Federal Programs Branch, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES WESLEY HENDRIX, UNITED STATES DISTRICT JUDGE

The Army has a valid interest in vaccinating its soldiers, and it has made the COVID-19 vaccine mandatory. But its soldiers have a right to religious freedom, which in this case includes a sincere religious objection to the COVID-19 vaccine. Which side must yield? The answer lies in the Religious Freedom Restoration Act, which applies to the military: The Army must accommodate religious freedom unless it can prove that the vaccine mandate furthers a compelling interest in the least restrictive means. The Army attempts to meet that burden by pointing to the need for military readiness and the health of its force. But the law, including Fifth Circuit precedent, makes clear that these generalized interests are insufficient. Rather, the Army must justify denying these particular plaintiffs' religious exemptions under current conditions. Here, with 97% of active forces vaccinated and operating successfully in a post-pandemic world, the Army falls short of its burden. It admitted no evidence at the hearing, and its assertion that allowing the ten named plaintiffs to remain exempt would prevent the Army from satisfying its mission defies logic and is undermined by the record. Thus, the Court grants the plaintiffs' motion for a preliminary injunction; all disciplinary and separation procedures against the plaintiffs must cease.

The Court begins with what is not in dispute. First, the Army concedes that the plaintiffs' sincerely held religious beliefs prevent them from receiving the COVID-19 vaccine. Second, the Army recognizes that its vaccine mandate substantially burdens those beliefs. Third, the Army agrees that it is subject to the Religious Freedom Restoration Act, which prevents it from substantially burdening religious beliefs unless it can prove that the burden furthers a compelling interest through the least restrictive means possible. Fourth, 97% of active-duty soldiers are vaccinated against COVID-19, and thousands of soldiers have operated unvaccinated for the past year or so based on temporary, non-religious exemptions. Fifth, Army policy permits it to grant religious exemptions but later rescind them if circumstances change. And finally, despite these realities, nearly 2,000 Army soldiers have lost their jobs—and the opportunity to continue serving their country—for refusing to be vaccinated.

The parties' dispute centers on whether the Army can prove that application of the vaccine mandate to these plaintiffs furthers a compelling government interest through the least restrictive means possible. At every turn, however, the evidence before the Court weighs against the Army and in favor of the plaintiffs. For example:

• The Army has continued to operate successfully despite thousands of secular exemptions being granted and despite booster shots not being required for those that were previously vaccinated;

• The plaintiffs have fulfilled their job duties and not caused a single mission failure while unvaccinated;

• Seven plaintiffs received the support of their immediate commanding officers in seeking a religious exemption;

• The defendants' asserted interest in the plaintiffs' ability to quickly deploy is undermined by the fact that seven of the ten plaintiffs serve in non-deployable roles;

• The Army's high vaccination rate—coupled with the plaintiffs' compliance with safety protocols and low health risk—lessens the asserted, generalized interest in the Army's health and safety;

• The generic, nearly identical letters denying religious exemptions—which include errors, inaccuracies, and, in one instance, the wrong name—make clear that the Army did not conduct the necessary individualized analysis;

• The Army based its 2021 mandate on CDC data and guidance, but circumstances have changed, including the Army's near-perfect vaccination rate, the weakening strain of the virus, and the decline in COVID-19-related casualties; and

• Less restrictive means, including temporary exemptions and safety protocols, have been employed successfully for an extended period of time, but the Army provides no evidence why the more restrictive burden—vaccination—is required.

Thus, the record makes clear that, at nearly 100% vaccination, the Army has met its mission, with few exceptions, to vaccinate its force from COVID-19. But the law requires the Army to make a tactical withdrawal from this small field of sincere religious objectors who, despite being unvaccinated, will not undermine its mission. To the contrary, they have served with valor and distinction even as the Army tried to discard them.

Finally, the Court recognizes that much of this litigation may soon be moot. Congress recently passed the National Defense Authorization Act for Fiscal Year 2023 (NDAA). If signed by the President into law, the NDAA would require the Secretary of Defense to "rescind the mandate that members of the Armed Forces be vaccinated against COVID-19" within 30 days of enactment. National Defense Authorization Act for Fiscal Year 2023, H.R. 7776, 117th Cong. § 525 (2022). Despite these developments, the Army has refused to commit to halting separation proceedings against the plaintiffs by way of any agreement that this Court can enforce. And there is no real indication that separations will cease. To the contrary, the Army recently delivered to one West Point cadet recoupment documents that detail his obligation to reimburse the Army for over $150,000 in educational costs upon his disenrollment. Therefore, despite the Court's frustration with the Army's litigation position, it has no choice but to resolve the dispute before it.

1. Factual and Procedural Background

The plaintiffs include a First Lieutenant, a 35S Signals Collector/Analyst Instructor, a Senior Construction Equipment Repairer, an Apprentice Signals Collection Instructor, a 19D Cavalry Scout, and five cadets in different stages of their training at the U.S. Military Academy at West Point. See Dkt. No. 14. Collectively, they bring suit against the defendants—each a federally appointed Department of Defense official—for violating their statutorily and constitutionally protected religious rights.

A. The Army's Vaccine Mandate

The Department of Defense (DoD) promotes a general policy of "medical readiness," requiring its service members to, "as a condition of continued participation in military service, ... maintain their health and fitness, meet [immediate medical readiness requirements], and report medical issues ... that may affect their readiness to deploy, ability to perform their assigned mission, or fitness for retention in military service." Dep't of Def. Instruction 6025.19 ¶ 1.2(b), Individual Medical Readiness Program (July 13, 2022).¹ In order to "maximize the lethality and readiness of the joint force," the DoD expects "all [s]ervice members ... to be deployable." Dep't of Def. Instruction 1332.45 ¶ 1.2(a), Retention Determinations for Non-Deployable Service Members (July 30, 2018).² As part of its ongoing efforts to achieve readiness and deployability amongst its members, the DoD has sought to "[m]aintain[ ] a fully immunized force." Dkt. No. 39-1 at 263.

In August 2021, the military issued its COVID-19 vaccine mandate. Specifically, the DoD issued a directive entitled "Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members." Dkt. No. 14 at 6. As its title suggests, it directs each military branch to pursue "full vaccination" of its service members against COVID-19 with a stated goal of achieving a "healthy and ready force." Id. A service member is considered "fully vaccinated" two weeks after receiving the final dose of any FDA-approved vaccine. Id. Additionally, "[s]ervice members voluntarily immunized with a COVID-19 vaccine under FDA Emergency Use Authorization or World Health Organization Emergency Use Listing ... are considered fully vaccinated." Id. However, "[t]hose with previous COVID-19 infection are not considered fully vaccinated." Id. The directive orders each branch to "promulgate appropriate guidance" and "impose ambitious timelines" for implementation of this mandate. Id. at 6-7.

Taking heed of this mandate, in September 2021, the Army issued Fragmentary Order 5 (FRAGO 5) to Headquarters Department of the Army (HQDA) Execution Order (EXORD) 225-21, "COVID-19 Steady State Operations."³ Dkt. No. 39-1 at 264. FRAGO 5 states that the Army "will achieve" a minimum 90% vaccination rate among active-duty soldiers by December 1, 2021. FRAGO 5 to HQDA EXORD 225-21 COVID-19 Steady State Operations (hereinafter "FRAGO 5"), ¶ 3.B.3. A soldier is considered fully vaccinated two weeks after receiving the final dose of an authorized vaccine. Id. ¶ 3.D.8. Any soldier who refuses to take the vaccine without an approved exemption must be "legally ordered to do so." Id. ¶ 3.D.8.B.2. "[F]ailure to obey th[at] order may result in adverse administrative or punitive action." Id.

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