Short v. Berger

599 F.Supp.3d 844

Thomas SHORT, Plaintiff,

v.David BERGER, et al., Defendants.

No. CV-22-00444-PHX-DJH

United States District Court, D. Arizona.

Signed April 22, 2022

Catherine Short, Pro Hac Vice, Life Legal Defense Foundation, Napa, CA, John Jakubczyk, Jakubczyk & Saverino PC, Phoenix, AZ, William G. Short, Pro Hac Vice, Law Offices of William G. Short, Ojai, CA, for Plaintiff.

Kwan Piensook, US Attorneys Office, Phoenix, AZ, Stuart Robinson, US Dept. of Justice - Civil Division, San Francisco, CA, for Defendants.

ORDER

Dominic W. Lanza, United States District Judge

INTRODUCTION

In August 2021, after consulting with military leadership and medical experts, the Secretary of Defense issued a memorandum concluding that the mandatory vaccination of military personnel against COVID-19 "is necessary to protect the Force and defend the American People." (Doc. 14-2 at 2.) The August 2021 memorandum further provided that the mandatory vaccination policy would be subject to certain "exemptions" and authorized the "Military Departments [to] promulgate appropriate guidance to carry out the requirements set forth above." (Id. ) Pursuant to this directive, the Commandant of the United States Marine Corps ("USMC"), General David Berger, issued an order in September 2021 that addressed how Marines may seek medical and religious exemptions from the vaccine requirement. (Doc. 14-7.)

To date, the USMC has received over 3,600 requests for a religious exemption from the vaccine requirement but has approved only seven of those requests. (Doc. 14-8 ¶ 13.)¹ It appears that, in all seven cases, the applicant was already in the process of separating from the Marines at the time the request was granted. In contrast, the USMC has approved over 900 medical exemptions, including at least 20 permanent medical exemptions. (Id. ¶ 12.)²

Plaintiff Thomas Short ("Major Short") is a major in the USMC who applied unsuccessfully for a religious exemption. In this action, Major Short argues that the denial of his exemption request was improper for several reasons, including because it violated the Religious Freedom Restoration Act ("RFRA"). Major Short has now moved for a preliminary injunction on his RFRA claim. (Doc. 2.)

In addressing Major Short's motion, the Court³ does not write on a blank slate. In recent months, several district courts outside the Ninth Circuit have granted injunctive relief in favor of service members pursuing RFRA-based challenges to military vaccine requirements. U.S. Navy SEALs 1-26 v. Biden , 578 F.Supp.3d 822 (N.D. Tex. 2022) ; Navy SEAL 1 v. Austin , 2022 WL 534459 (M.D. Fla. 2022) ; Air Force Officer v. Austin , 588 F.Supp.3d 1338 (M.D. Ga. 2022) ; Poffenbarger v. Kendall , 588 F.Supp.3d 770 (S.D. Ohio 2022) ; Doster v. Kendall , 596 F.Supp.3d 995 (S.D. Ohio 2022). The Fifth Circuit initially rejected the government's request for a partial stay pending appeal in one of those cases. U.S. Navy Seals 1-26 v. Biden , 27 F.4th 336 (5th Cir. 2022). However, the Supreme Court subsequently granted the government's partial stay request, holding that the district court's grant of injunctive relief was stayed "insofar as it precludes the Navy from considering [the challengers’] vaccination status in making deployment, assignment, and other operational decisions." Austin v. U.S. Navy Seals 1-26 , ––– U.S. ––––, 142 S. Ct. 1301, 1301, 212 L.Ed.2d 348 (2022). In a concurrence, Justice Kavanaugh explained that he viewed a stay as necessary for the "simple overarching reason" that "[u]nder Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces" and emphasized that "the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context." Id. at 1302 (Kavanaugh, J., concurring).

In the Ninth Circuit, service members’ challenges to the vaccine mandate have met with less success. In February 2022, the United States District Court for the Eastern District of California denied an Air Force reservist's RFRA-and First Amendment-based request for injunctive relief. (Doc. 14-14.) Afterward, the Ninth Circuit denied the challenger's request for an injunction pending appeal. Dunn v. Austin , 2022 WL 1136043 (9th Cir. 2022). Earlier this week, the Supreme Court also denied the challenger's request for emergency relief. Dunn v. Austin , ––– U.S. ––––, 142 S.Ct. 1707, 212 L.Ed.2d 603 (2022). Meanwhile, in March 2022, the United States District Court for the Central District of California denied a Marine's RFRA-and First Amendment-based request for injunctive relief for several reasons, including a lack of justiciability, no likelihood of success on the merits, and the absence of irreparable harm in the absence of injunctive relief. Short v. Berger , 2022 WL 1051852 (C.D. Cal. 2022).

The Court has carefully reviewed all of the above-cited cases, as well as the parties’ briefs and evidentiary submissions in this case, and concludes that Major Short is not entitled to a preliminary injunction. This outcome is dictated by Major Short's failure to establish that he will suffer irreparable harm if forced to wait until the end of this case to obtain relief pursuant to his RFRA claim. Most of Major Short's asserted injuries could be redressed at a later date through back pay and reinstatement and it is unlikely that Major Short's other asserted injury—the coercion inherent in being forced to choose between following his religious beliefs and a military order—qualifies as an irreparable injury under Ninth Circuit law. Finally, although some of the other preliminary injunction factors (such as the likelihood of success on the merits, which incorporates whether Major Short's RFRA claim is justiciable) present a somehow closer call, Major Short still has not made the sort of clear showing as to those factors that is necessary to justify the extraordinary remedy of a preliminary injunction.

BACKGROUND

The facts set forth below are derived from the materials attached to the parties’ motion papers and the evidence admitted during the preliminary injunction hearing on April 20, 2022.⁴ Unless indicated otherwise below, all facts are undisputed.

I. Major Short's Background And Current Role

Major Short is currently serving as an active-duty staff judge advocate at Marine Corps Air Station Yuma ("MCAS Yuma") in Yuma, Arizona. (Doc. 2-2 ¶ 2.) Over the course of his career in the USMC, Major Short has been deployed to Afghanistan, Central America, South America, and Japan. (Id. ¶¶ 3-4.) In his current role, Major Short is the legal advisor to the commanding officer at MCAS Yuma, Colonel Charles Dudik, to Colonel Dudik's staff, to the "Headquarters and Headquarters Squadron" Yuma Commanding Officer, and to the Marine Operational Test and Evaluation Squadron 1 Commanding Officer. (Doc. 14-11 ¶¶ 1-3.)

Since May 2021, Major Short has been authorized to engage in telework. (Doc. 2-2 ¶ 5.) However, Short has "not teleworked a single day by personal preference" since receiving this authorization. (Id. )

One of the disputed issues in this case is the extent to which Major Short's job responsibilities require him to perform in-person tasks while in close proximity to other Marines. On this topic, Colonel Dudik's declaration suggests that Major Short must frequently engage in such close, in-person interactions. For example, Colonel Dudik avows that "[w]hile some of [Major Short's] duties may be performed remotely, extended periods of telework are impractical and unsustainable for such a critical role," in part because staff judge advocates "must be available to meet in-person when sensitive legal issues arise" and are "often involved in impromptu meetings and sensitive conversations involving military justice," many of which are not "best handled via electronic mail, phone calls, or even videoconferences." (Doc. 14-11 ¶ 5.) Colonel Dudik also avows that, although Major Short is currently assigned to a non-deployable unit at MCAS Yuma, he may "be required to deploy at a moment's notice as a result of emergent geopolitical developments, either domestically or abroad." (Id. ¶ 8.) According to Colonel Dudik, because Major Short "has both prior experience and training in operational law," this "makes it more likely that he would be eligible for such an operational assignment." (Id. ) Colonel Dudik also notes that Major Short is one of the members of the MCAS Yuma staff "who is designated as mission essential emergency personnel. This means that he is a required member of our emergency operations center (EOC), which is activated during emergencies such as border crises, natural disasters, domestic terrorist attacks and other major incidents. The EOC is physically located on board MCAS Yuma and those who participate must be vaccinated and may not do so remotely because it is a small room with dozens of personnel in close quarters." (Id. ¶ 6.) Finally, Colonel Dudik notes that Major Short "has a security clearance, and is required to be able to access classified systems, which can only be done in person." (Id. ) Given this backdrop, Colonel Dudik avows that "Major Short is my principal legal advisor and serves a prominent position among the leadership at MCAS Yuma; as such, it is important that, like other members of the leadership team, he is visible and physically accessible to other Marines." (Id. )

During the preliminary injunction hearing, Major Short testified that some of the statements in Colonel Dudik's declaration on these topics are either inaccurate or exaggerated. In a nutshell, although Major Short acknowledges that he must perform certain tasks (such as physical training exercises) in close proximity to other Marines, he contends that the great majority of his work can be...