UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARIELLA CREAGHAN, Plaintiff v. Civil Action No. 22-0981 (CKK) LLOYD AUSTIN, in his official capacity as Secretary of the United States Department of Defense, et al., Defendants.

MEMORANDUM OPINION (May 12, 2022) Plaintiff Mariella Creaghan (“Plaintiff” or “Captain Creaghan”) is a Captain in the United

States Space Force and religious objector of one of several vaccines mandated by her branch of

service. Captain Creaghan’s [11] Motion seeks preliminary relief from this Court barring

Defendants from “punishing, prosecuting, or taking any adverse or retaliatory action against

Plaintiff as a result of, or arising from, or in conjunction with Plaintiff’s request for a religious

accommodation or Defendants’ denial of Plaintiff’s religious accommodation.” As the Court

explained in a similar case, requests for religious exemptions from military-mandated medical

requirements “raise particularly difficult questions that implicate a storm of colliding

constitutional interests.” Navy SEAL v. Austin,

, at *1 (D.D.C. Apr. 29, 2022).

Although this case is much closer than Navy SEAL, the Court remains concerned that it lacks the

competence to “evaluate the merits of military [epidemiological and tactical] expertise” or to

“weigh technical issues of public health and immunology” necessary to resolve the case. Id. at

*5. Justiciability is all the more uncertain given the unfixed, evolving science on which this

vaccination mandate is based. These concerns permeate the merits of Plaintiff’s claims as well.

1 Accordingly, after careful review of the pleadings, 1 the relevant legal and historical authorities,

and the entire record, Court shall DENY Plaintiff’s [11] Motion for Preliminary Injunction.

I. BACKGROUND

A. General Background

As this Court has previously noted, military vaccine mandates have a long history in this

country. “[E]xecutive immunization requirements predate the birth of this country, with George

Washington famously requiring members of the Continental Army to be inoculated against

smallpox.” Feds for Med. Freedom v. Biden,

, 357 n.6 (5th Cir. 2022) (Higginson,

J., dissenting). Until August 2021, the United States Department of the Air Force (“Air Force”)

mandated a number of vaccines, including those against influenza, hepatitis A & B, mumps,

rubella, and tetanus. See ECF 22-11 at 9. On August 24, 2021, the Secretary of Defense

directed the Air Force to add another vaccine to the list––vaccination combatting COVID-19. Id.

at 8. The Secretary of Defense explained that, “[t]o defend this Nation, we need a healthy and

ready force.” Navy SEAL,

, at *2. Accordingly, “[a]fter careful consultation

with medical experts and military leadership, and with the support of the President [of the United

States], [the Secretary of Defense] determined that mandatory vaccination against coronavirus

1 This Memorandum Opinion focuses on the following documents: • Plaintiff’s Complaint, ECF No. 3; • Plaintiff’s Memorandum in Support of Plaintiff Navy SEAL 4’s Motion for Preliminary Injunction, ECF No. 14-1 (“Motion” or “Mot.”); • Defendants’ Response in Opposition to Plaintiff Navy SEAL 4’s Motion for Preliminary Injunction, ECF No. 22 (“Opp.”); • Plaintiff’s Reply in Support of Plaintiff Navy SEAL 4’s Motion for Preliminary Injunction, ECF No. 25 (“Repl.”). In an exercise of its discretion, the Court finds that holding oral argument would not be of material assistance in rendering a decision. 2 disease 2019 (COVID-19) is necessary to protect the Force and defend the American people.”

Consistent with that order, the Secretary of the Air Force, on September 3, 2021, directed

all active duty servicemembers (within the Air Force and Space Force) to be fully vaccinated

against COVID-19 by November 2, 2021. 2 All Air Force orders are applicable to the United

States Space Force (“Space Force”) as a constituent branch of the Air Force and all Space Force

servicemembers (called “Guardians”). ECF 22-4 at 1. On December 7, 2021, the Secretary of

the Air Force issued an order providing for “medical, religious[,] or administrative exemptions,”

and temporarily exempted servicemembers from discharge or adverse action while exemption

requests were pending. 3 The recognition of these exemptions was largely perfunctory, as

requests for COVID-19 vaccination exemptions are governed by the same rules and regulations,

active since 2018, that govern all other requests for exemptions from other vaccinations. ECF

22-4 at 2. As of April 26, 2022, the Air Force has granted 460 medical exemptions (including

seven for Space Force Guardians), and 41 religious exemptions. 4

Pursuant to that policy, AFI 48-110_IP (Oct. 7, 2013) as amended (Feb. 16, 2018), a

Guardian seeking a religious exemption first submits a written request to the applicable

commanding officer. ECF 22-5 at 2. The Guardian then consults with the applicable

commanding officer and a medical military provider, who address, respectively, the effect of

2 DAF, “Mandatory Coronavirus Disease 2019 Vaccination of Department of the Air Force Military Members” (Sept. 3, 2021), https://www.hqrio.afrc.af.mil/Portals/149/Documents/ COVID/20210903%20DAF_%20SecAF%20Memo%20-%20Mandatory%20Coronavirus%20 Disease%202019%20Vaccination%20of%20Department%20of%20the%20Air%20Force%20 Military%20Members.pdf?ver=YogX1KMirgEUGIvzJtgUSw%3D%3D. 3 DAF, “Supplemental Coronavirus Disease 2019 Vaccination Policy” (Dec. 7, 2021), https://www.af.mil/Portals/1/documents/2021SAF/12_Dec/Supplemental_Coronavirus_Disease_ 2019_Vaccination_Policy.pdf. 4 DAF, “COVID-19 Statistics - Apr. 26, 2022” https://www.af.mil/News/Article- Display/Article/2989918/daf-covid-19-statistics-apr-26-2022/. 3 nonvaccination on the Guardian’s mission and the Guardian’s health. Id. at 4. The Guardian

must also consult with an Air Force chaplain, and the chaplain assesses the sincerity and

religiosity of the exemption request. Id. With these three assessments in hand, the omnibus

request is reviewed by each commanding officer in the Guardian’s chain of command. Id. at 5.

Each commanding officer makes a recommendation (termed an “endorsement”) as to whether to

grant the exemption request, but the ultimate decision is made by the “approval/disapproval

authority.” 5 For Space Force Guardians, the approval authority is the Commander of Space

Operations Command, Lt. Gen. Stephen N. Whiting. See id. at 18. Disapproval may be

appealed to the Air Force Surgeon General. ECF No. 22-5 at 2. To assist Lt. Gen. Whiting in

his review, as the approval authority, the Space Force employs “Religious Resolution Teams”

(“RRT”). DAFI 52-201 at 6. These teams are made up of at least one commander, chaplain,

public affairs officer, and staff judge advocate. Id. Where a medical objection is raised, the

team must also include a medical provider. Id. At each stage of review, those involved

determine: (1) the sincerity of the religious request; (2) the military interests at issue; (3) whether

those interests are compelling; (4) whether vaccination substantially burdens the Guardian’s

religious belief(s); and (4) whether vaccination is the least restrictive means to accomplish the

military’s interests in vaccinating that particular Guardian. Id. at 7-8.

A Guardian whose appeal has been denied and who still objects to vaccination is subject

to discipline, up to and including administrative, general (under honorable conditions) discharge

and military courts-martial. ECF No. 6 at 4-5. Before adverse action may be taken on continued

objection to COVID-19 vaccination, noncompliance must first be reviewed by a high-ranking

officer (a Colonel or higher). Id. at 2.

5 DAFI 52-201 at 8 (June 23, 2021), https://static.e-publishing.af.mil/production/1/af_hc/ publication/dafi52-201/dafi52-201.pdf. 4 B. Background Specific to Plaintiff

Plaintiff is a Space Force Captain assigned to the Space Force’s National Reconnaissance

Office (“NRO”) in Chantilly, Virginia. ECF No. 22-10 at 1. Her precise role is somewhat

difficult to discern from the record thus far, perhaps because much of it involves particularly

sensitive, classified operations. From what the Court understands, the NRO provides offensive

and intelligence support to the Air Force, other branches of the military, and the intelligence

community. ECF No. 22-10 at 2. It manages a number of satellite systems and spacecraft that

are evidently capable of engaging in electronic warfare and that also gather signals and

geospatial intelligence. Captain Creaghan is a “Mission Director.” Id. She “has operational

control and on-line decision-making responsibilities for all aspects of NRO operations during

[her] shift.” Id. That includes the direction of those assets, ensuring the operational health of the

assets, overseeing the security of the site in which those assets are managed, and overseeing

“daily reports for [the] NRO and government senior leaders.” See id. at 2-3. She works in a

compartmentalized area known as a “SCIF” (Secure Compartmentalized Information Facility)

that is fully indoors and limits airflow. Id. at 3. Because all her work is classified, she cannot

telework. See id. The nature of her work evidently involves frequent interpersonal contact

within her workspace. See id. at 4.

On September 30, 2021, Plaintiff requested a religious accommodation. She articulated a

religious belief predicated on the religious view that life begins at conception, and insisted that

receiving any COVID-19 vaccine would contravene her sincerely held belief because each

vaccine’s development involved fetal cells in some way. ECF 22-13 at 22-24. She included in

her request a litany of supporting documents from religious figures in her life testifying to the

sincerity of her belief and its connection to her Catholic faith. See, e.g., ECF No. 22-13 at 31.

5 On October 18, 2021, an Air Force chaplain concluded that she held a sincerely held religious

belief and that vaccination against COVID-19 would substantially burden that belief. Id. at 62.

On December 14, 2021, the Religious Resolution Team assigned to Captain Creaghan’s request

agreed with the chaplain, and also concluded that the Space Force had a compelling government

interest in requiring her health as a Space Force Mission Director and that vaccination was the

least restrictive means of accomplishing that interest. Id. at 63-66. That report concluded that

“[s]ervice members have a responsibility to maintain their health and fitness, meet individual

medical readiness requirements, and report medical and health issues that may affect their

readiness to deploy or [medical] fitness to continue serving in an active status.” Id. at 66.

Notwithstanding this finding, Captain Creaghan’s direct commanding officer, Lt. Col.

Benjamin Andrea (“Col. Andrea”) recommended approval of Captain Creaghan’s request. Id. at

88. Most relevant for present purposes, he found that “[t]he projected impact to [Plaintiff’s] unit

is low” if she remains “unvaccinated.” Id. at 89. He suggested that Plaintiff’s unit “has backup

personnel available to provide positional coverage in the event of any operations personnel

requiring quarantine.” Id. Col. Andrea also expressed a personal belief that the risk to Plaintiff’s

health was acceptable because Plaintiff “supplied sufficient medical evidence indicating presence

of the SARS-CoV-2 antibody.” Id. at 90. The record does not suggest that Plaintiff’s direct

commanding officer had any medical expertise to make such a judgment.

On the same form, Plaintiff’s second-level commanding officer circled “concur” and

“approval” to ratify, without explanation, Col. Andrea’s recommendation. Id. at 90. On January

30, 2022, Plaintiff’s third-level commanding officer, Major General Donna D. Shipton,

disagreed, finding that “there are no less restrictive means available to meet the government’s

compelling interest without placing in jeopardy the health, safety, and availability of Capt[ain]

6 Creaghan.” Id. at 92. Captain Creaghan, Major General Shipton continued, “makes important

contributions to the mission at [her] NRO [facility] . . . where she is responsible for directing

daily operations and maintenance of NRO space and ground systems.” Id. Major General

Shipton therefor concluded that placing Captain Creaghan at a “higher risk of prolonged illness,

hospitalization, and death” by granting a mandate would unacceptably jeopardize Captain

Creaghan’s military duties and the NRO’s military mission. See id.

Weighing these differing recommendations, Lieutenant General Whiting sided with

Major General Shipton and the interdisciplinary RRT. Id. at 93. He found that “as a Mission

Director responsible for directing daily operations and maintenance for NRO space and ground

systems, and ensuring overall spacecraft health and mission success,” vaccination was the least

restrictive means to accomplish military goals. Id. Lieutenant General Whiting’s finding was

limited to “the spread of the COVID-19 virus,” however, and made no mention of the necessity

of vaccination to protect Plaintiff’s health. See id. On appeal, Lieutenant General Robert Miller,

the Surgeon General of the Air Force, affirmed Lieutenant General Whiting’s decision on March

25, 2022, concluding that lack of Plaintiff’s immunization “in [Plaintiff’s] dynamic [military]

environment, and aggregated with other non-immunized individuals in steady state operations,

would place health and safety, unit cohesion, and readiness at risk.” Id. at 103. Like Lieutenant

General Whiting, Lieutenant General Miller’s findings appear to rest almost entirely on

transmission, although an attached appendix does mention that vaccinated “personnel are much

less likely to develop severe disease, be hospitalized, or die as a result of being vaccinated.” Id.

at 105.

Denial in hand, Plaintiff filed for suit for injunctive relief in this court. Although the

Space Force may take any number of disciplinary or administrative actions against Plaintiff for

7 continued religious objection to Space Force medical requirements, no such action, including the

institution of separation proceedings, has been taken against Plaintiff as of April 29, 2022. ECF

No. 22-10 at 13.

II. LEGAL STANDARD

Preliminary injunctive relief is an “extraordinary remedy that may only be awarded upon

a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius,

(D.C. Cir. 2011) (emphasis added) (quoting Winter v. Nat’l Res. Def. Council, Inc.,

(2008)); see also Mazurek v. Armstrong,

(1997) (per curiam)). 6 A

plaintiff seeking preliminary injunctive relief “must establish [1] that he is likely to succeed on

the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3]

that the balance of the equities tips in his favor, and [4] that an injunction is in the public

interest.” Aamer v. Obama,

(D.C. Cir. 2014). When seeking such relief,

“the movant has the burden to show that all four factors, taken together, weigh in favor of the

injunction.” Abdullah v. Obama,

(D.C. Cir. 2014). “The four factors have

typically been evaluated on a ‘sliding scale,’” whereby if “the movant makes an unusually strong

showing on one of the factors, then [he] does not necessarily have to make as strong a showing

on another factor.” Davis v. Pension Benefit Guar. Corp.,

(D.C. Cir.

2009).

6 Plaintiff argues in her supplemental briefing that the Court in Navy SEAL “seem[ed] to require a heightened standard for granting a preliminary injunction.” Pl.’s Supp. Br. at 4. Plaintiff appears to rest that argument on the Court’s conclusion that the plaintiff in Navy SEAL “has not carried his burden to show that he is ‘clearly warranted’ preliminary relief.”

, at *4. To be clear, the Court used the term “clearly warranted” to restate the D.C. Circuit’s instruction that a preliminary injunction must only be granted “upon a clear showing that the plaintiff is entitled to such relief.” Sherley,

. 8 It is unclear whether the United States Court of Appeals for the District of Columbia

Circuit’s (“D.C. Circuit”) sliding-scale approach to assessing the four preliminary injunction

factors has survived the Supreme Court’s decision in Winter. See Save Jobs USA v. Dep’t of

Homeland Sec.,

(D.D.C. 2015). Several judges on the D.C. Circuit

have “read Winter to suggest if not to hold that ‘a likelihood of success is an independent, free-

standing requirement for a preliminary injunction.’” Sherley,

(quoting Davis,

(Kavanaugh, J., concurring)). However, the D.C. Circuit has yet to hold

definitively that Winter has displaced the sliding-scale analysis. See

In light of this

ambiguity, the Court shall consider each of these factors and shall only evaluate the proper

weight to accord to the likelihood of success if the Court finds that its relative weight would

affect the outcome. Accord Church v. Biden, --- F. Supp. 3d ---,

, at *7

(D.D.C. 2021).

III. DISCUSSION

For the most part, this case raises the same questions as those in Navy SEAL. That said,

the parties’ supplemental briefing in response to the Court’s opinion in Navy SEAL have

narrowed the issues somewhat. The parties do not appear to seriously contest the Court’s

discussion of the merits of Free Exercise and Equal Protection claims as to religious objections

to military vaccination orders. Rather, they contest: (1) the Court’s justiciability discussion; and

(2) the application of RFRA in military context, i.e., what degree of deference the military is due

on the merits of a RFRA claim and whether a vaccination order is narrowly tailored as to

Plaintiff. Additionally, this case raises two new questions that were not present in Navy SEAL:

(1) whether a servicemember has Article III standing to contest the denial of a religious

accommodation where separation proceedings (or any other adverse action) have not yet begun;

9 and (2) whether administrative, general (under honorable conditions) discharge is irreparable

harm as a matter of law. As such, the Court will proceed to these four questions and refer to its

opinion in Navy SEAL for the remaining issues presented in the parties’ briefing.

A. Standing

First, the Government argues that Plaintiff lacks standing to challenge the denial of her

requested religious accommodation because separation proceedings have not yet begun. Not so.

To receive a preliminary injunction, the moving “party must show, among other things, a

‘substantial likelihood of success on the merits.’” Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir 2015). “The merits on which plaintiff must show likelihood of success

encompass not only substantive theories but also establishment of jurisdiction,” including Article

III standing. See Elec. Priv. Info. Ctr. v. Dep’t of Com.,

(D.C. Cir. 2019). To

show standing, a plaintiff must show an “injury-in-fact that is ‘imminent’ or ‘certainly

impending.’” Am. Petrol. Inst. v. EPA,

(D.C. Cir. 2013).

Defendants seem to construe the alleged injury as separation proceedings or other adverse

action predicated upon the denial of Plaintiff’s accommodation request. Plaintiff, however,

relies on, the deprivation of a statutory or constitutional right as an “injury-in-fact” triggering

Article III jurisdiction. See Warth v. Seldin,

(1975). Insofar as Plaintiff has

exhausted her administrative remedies to receive a religious exemption from COVID-19

vaccination, the Court agrees that Plaintiff has demonstrated a likelihood success in

demonstrating that she ahs standing to challenge that denial.

B. Justiciability

In Navy SEAL, the Court explained that “‘[c]laims are nonjusticiable where: (1) their

resolution requires decisions which are not matters of judicial expertise but are matters of

10 management, public policy or technical expertise; (2) the relief requested usurps the functions of

a coordinate branch of government; or (3) the relief requested is not justicially manageable.”

Nat’l Coal Ass’n v. Marshall,

(D.D.C. 1981) (citing Baker, 369 U.S. at

217). Here, as in Navy SEAL, there remain serious questions as to whether a judicial challenge to

a military medical requirement (1) “usurps the functions” of powers committed to the Executive

through the Commander-in-Chief Clause and (2) involves scientific determinations that “are not

matters of judicial expertise but are matters of . . . technical expertise.”

, at

*5.

As to military judgments, the Court stressed that some are undoubtedly justiciable.

Justiciable military cases involving the rights of military personnel generally do not require

evaluation of strategic or technical decisions. Rather, they look to whether a service member has

received constitutionally sufficient process, or to evaluate constitutional claims that do not

involve a particularly technical record. See, e.g., Piersall v. Winter,

(D.C. Cir.

2006) (justiciable where review was limited to whether decision by civilian administrative board

was arbitrary or capricious); Doe 2 v. Shanahan,

, 23 (D.C. Cir. 2019)

(suggesting that a “blanket ban” prohibiting indefinitely the accession of transgender individuals

into the military would be justiciable).

At the same time, most cases involving fitness for duty are generally not justiciable,

sometimes because they involve complex medical judgments, and sometimes because they

involve highly subjective judgments regarding the servicemember’s military capabilities. See

Emory v. Sec’y of Navy,

(D.C. Cir. 1987); see also, e.g., Kries v. Sec’y of Air

Force,

(D.C. Cir. 1989) (“This court is not competent to compare appellant

with other officers competing for [] a promotion.”); Charette v. Walker,

, 50

11 (D.D.C. 1998) (holding a former military officer’s “request for reinstatement . . . not

justiciable”); Harkness v. Sec’y of Navy,

(6th Cir. 2017) (“Duty

assignments lie at the heart of military expertise and discretion, and we are wary of intruding

upon that sphere of military decision-making.” (internal quotation marks omitted)). Cases

involving actual strategic decisions are perhaps the epitome of “complex, subtle, and

professional decisions” otherwise left to the Commander-in-Chief and their subordinates. See

Short v. Berger,

, at *5 (C.D. Cal. Mar. 3, 2022); Trans. at 42, ECF No. 22,

Dunn v. Austin, No. 2:22-cv-00288-JAM-KJN (E.D. Cal. Feb. 28, 2022), application for

injunction pending appeal denied, No. 21A599, Doc. 7 (U.S. Apr. 15, 2022); see also Orloff v.

Willoughby,

(1953).

In response, Plaintiff points the Court to Doe v. Rumsfeld,

(D.D.C.

2003). In that case, which is not binding upon this Court, two military servicemembers

challenged an anthrax vaccination mandate under the Administrative Procedure Act,

et seq. Id. at 123. The question in that case was whether the Food and Drug

Administration had classified the particular vaccine “as an investigational new drug or as a drug

unapproved for its intended use.” Id. at 131. An applicable federal law provided that the

military may not “administer[] investigational new drugs, or drugs unapproved for their intended

use, to serve members without their informed consent.” Id. at 125. The merits question,

therefore, was not the wisdom of mandating a particular vaccine generally or to particular

servicemembers, but rather whether a particular vaccine fell within a certain legal category that

could be determined through traditional tools of statutory interpretation. That question fell

within the familiar ambits of the APA––whether a federal agency had acted arbitrarily or

capriciously. Id. at 128.

12 On justiciability, Doe in fact employed a similar analysis as this Court in Navy SEAL.

The Doe court asked whether judicial intervention involved “the exercise of military expertise or

discretion,” and evidently concluded otherwise. See id. at 127. Rather, an APA claim is

justiciable insofar as it merely asks whether the military acted arbitrarily and capriciously in its

procedural review. See id. at 128. The Court would be inclined to agree that those sorts of

claims are justiciable because (1) the test is concerned predominantly with legal process and (2)

it does not involve second-guessing the wisdom of military judgments dealing with readiness and

lethality. As such, the Court is not inclined to depart from its tentative conclusion in Navy SEAL

that RFRA challenges to military medical requirements more likely raise justiciability concerns.

As for justiciability regarding scientific determinations that “are not matters of judicial

expertise but are matters of . . . technical expertise,” Plaintiff offers little argument to the

contrary. To support such a proposition, Plaintiff cites, in a footnote, Tandon v. Newsom,

(2021) and Roman Catholic Diocese of Brooklyn v. Cuomo,

(2020). In

the former, and as this Court explained in Navy SEAL, the Supreme Court did not come close to

determining the immunological wisdom of certain public health restrictions. Rather, it held that

a state may not treat religious and non-religious institutions differently when imposing a public

health restriction. 141 S. Ct. at 1297-98. Indeed, of the federal courts that have enjoined federal

health measures in the recent past, they have done so almost exclusively on procedural, and not

technical, grounds. See, e.g., Georgia v. Biden, --- F. Supp. 3d ---,

, at *9-10

(S.D. Ga. Dec. 7, 2021) (enjoining federal contractor vaccine mandate on grounds that mandate

exceeded statutory authority); Health Freedom Def. Fund, Inc. v. Biden, --- F. Supp. 3d ---,

, at *12 (M.D. Fla. Apr. 18, 2022) (enjoining federal mask mandate on airplanes on

grounds that mandate exceeded statutory authority). On the other hand, this case and Navy SEAL

13 require a detailed review of the scientific, medical, immunological, and epidemiological bases of

a vaccination mandate as to Plaintiff to answer whether vaccination is the least restrictive means

of accomplishing Plaintiff’s specific military duties. These are fraught questions of medical

science that the judiciary generally “lacks the background, competence, and expertise to assess.”

See S. Bay United Pentecostal Church v. Newsom,

(2020) (Roberts, C.J.,

concurring). Accordingly, both military and scientific justiciability concerns remain in this case.

C. Merits

Before proceeding to the likelihood of success on Plaintiff’s RFRA claim, the heart of

this case, a word on Plaintiff’s Free Exercise claim is necessary. Plaintiff’s supplemental

briefing does not appear to seriously contest that the rational basis test in Goldman v.

Weinberger,

(1986) remains good law. Plaintiff writes that RFRA “deliberately

narrowed” Goldman’s holding that a Jewish servicemember had no Free Exercise right to wear a

yarmulke in military uniform.

. It likely goes without saying that Congress cannot

narrow a constitutional holding, although it can provide statutory rights beyond that which the

Constitution protects. Plaintiff seems to also argue that, even if Goldman stands, it applies only

to “operational, strategic, or tactical” military decisions. Pl.’s Supp. Br. at 8. The Court does not

find such a holding in that decision, and the Court would be hard-pressed to consider grooming

standards “operational, strategic, or tactical.” 7

As to RFRA, the law provides that the government “shall not substantially burden a

person’s exercise of religion even if the burden results from a rule of general applicability.” 42

7 Plaintiff in her supplemental briefing seems to suggest a historical right to religious accommodation during military service. Whatever history Plaintiff may bring to bear, history cannot rewrite statutes, Spicer v. Biden, --- F. Supp. 3d ---,

, at *5 (D.D.C. Dec. 4, 2021) (DLF), and Plaintiff does not ask the Court to overturn a century of Supreme Court precedent articulated in Goldman and its progeny by finding such a right in the Free Exercise Clause as an original matter. Responding briefly, however, although Plaintiff accurately notes 14 U.S.C. § 2000bb-1(a). To prevail on a RFRA claim, a plaintiff must first show a “religious

exercise” that has been burdened. Wilson v. James,

(D.D.C. 2014)

(APM); United States v. Sterling,

(CAAF 2016). If confronted with a

“religious exercise,” the government may impose a substantial burden on that religious exercise

“only if it demonstrates that the application of the burden to the person––(1) is in furtherance of

a compelling government interest; and (2) is the least restrictive means of furthering that

compelling government interest.”

§ 20000bb-1(b).

The parties do not contest that Plaintiff maintains a sincerely held religious belief and that

vaccination would substantially burden that belief. Rather, the parties mainly contest this

Court’s understanding of RFRA in the military context and whether the facts in this case

that colonial authorities granted religious exemptions from service during the colonial period, it is inaccurate to say that once drafted, militiamen could always be religiously exempted from otherwise necessary military duties. See, e.g., Peter Brock, “Colonel Washington and the Quaker Conscientious Objectors,” 53 Quaker History 12, 14 (1964). Indeed, the military history of colonial America and the Early Republic suggest that most early military leaders considered strict military discipline absolutely necessary to accomplish military ends, even more so among those not conscripted to fight. See, e.g., Bradley J. Nicholson, “Courts-Martial in the Legion Army: American Military Law in the Early Republic, 1792-1796,”

, 84 (1994) (further noting that early American military law essentially incorporated British law). Moreover, the fact that some colonial legislatures gave statutory reprieve from a militia draft should not distract from the colonial history establishing a deep skepticism of religious objectors having a right to avoid military service. See Ellis West, The Right to Religion-Based Exemptions in Early America: The Case of Conscientious Objectors to Conscription,

, 376-77 (1994). Cf. also Fulton v. City of Phila.,

, 1906 (2021) (Alito, J., concurring in the judgment) (noting Free Exercise claims have long been due different constitutional treatment in military context notwithstanding colonial reprieves from service). Even during the nascent civil liberties movement during the First World War, legal authorities met conscientious objectors with a great degree of incredulity. See Christopher Capozolla, Uncle Sam Wants You 82 (2008) (recounting letter authored by Justice Harlan Fiske Stone in which he wrote, reflecting on his service as an adjudicator of religious exemptions, that he had not had “a change of heart” after rejecting a number of requests because “one must obey some laws of which [he] does not approve, and even participate in a war [one may] think ill advised”). This cursory historical discussion is largely academic, however. Whatever history’s purported role in resolving RFRA disputes, the parties have not fully briefed it, and the Court need not rest any legal analysis upon it. 15 mandate a different result based on that law. In Navy SEAL, the Court looked to Singh v.

McHugh,

(D.D.C. 2015) (ABJ) amended and superseded in irrelevant

part

(D.D.C. 2016). After a discussion of that case, RFRA’s text, and its

legislative history, the Court agreed with Singh’s main holding that RFRA applies to the military,

and any military regulation that substantially burdens free exercise is due RFRA’s statutory strict

scrutiny. Navy SEAL,

, at *8. Nevertheless, the Court “stresse[d] that context

is important.”

In part relying on Singh’s discussion of RFRA’s legislative history, the Court

concluded that the best reading of the statute, at least with a dearth of authority and a relatively

undeveloped record in Navy SEAL, was that the military’s technical and scientific conclusions

should receive due regard in determining whether those technical and scientific judgments are in

fact the least restrictive means to accomplish the military interest at issue as to a particular

military claimant.

This very tentative conclusion is also rooted in other Supreme Court

decisions generally cautioning that the judicial power is relatively ill-equipped to resolve highly

technical conclusions of fact where their resolution is textually committed to a coordinate branch

in the first instance. See

The Government appears to agree with this approach whole-heartedly. Defs.’ Supp. Br.

at 1-2. Plaintiff, however, cautions that such an approach “[a]pplies different levels of deference

to RFRA claims, according to the subject of the sincerely held religious belief, would result in

treating religious practice unequally.” Pl.’s Supp. Br. at 7. The Court sees nothing in Navy

SEAL even remotely suggesting such a test.

Rather, the Court suggested that the military’s technical, scientific findings supporting the

wisdom of a particular, generally applicable military order may be due some regard greater than

those resting on no such findings. See Navy SEAL,

, at *10. In other words,

16 the military receives no degree of deference based on the exercise regulated, but on the scientific

and strategic conclusions on which the regulation is based. Beyond a citation to Katcoff v.

Marsh,

(2d Cir. 1985), which stands for the unremarkable proposition that

soldiers enjoy some First Amendment protections as a matter of constitutional law, Plaintiff

offers no authority suggesting that the Court should take a different tack. Plaintiff will

undoubtedly have an opportunity to do so as this case progresses, but at this early stage of the

case where Plaintiff must show likelihood of success on the merits (among other things), the

Court is not inclined to change tack just yet.

That brings the Court to the most important aspect of Plaintiff’s request for preliminary

relief: applying her situation to the law set out in Navy SEAL. Doing so, and assuming this case

is justiciable in the first place, Plaintiff makes a much stronger showing of likelihood of success

on the merits on her RFRA claim than the plaintiff in Navy SEAL.

As to whether the military has a compelling government interest in mandating various

vaccines, and COVID-19 vaccination in general, “the [Space Force] has a compelling interest in

preventing COVID-19 from impairing its ability to carry out its vital responsibilities, as well as a

compelling interest in minimizing any serious health risk to [Space Force] personnel.” See

Austin v. U.S. Navy Seals 1-26,

, 1305 (2022) (Alito, J., dissenting). Facing the

same orders at issue in this case, another district court that granted preliminary relief

nevertheless agreed that the Air Force undoubtedly shares that compelling government interest.

Air Force Officer v. Austin, --- F. Supp. 3d ---,

, at *9 (M.D. Ga. Feb. 16, 2022)

(“It would be a waste of time and wrong to state that ‘[s]temming the spread of COVID-19’ isn’t

a compelling interest––the Supreme Court has already decided it is.”). The Court is again

inclined to conclude that “the sine qua non of military interests is keeping an individual

17 servicemember fit enough to accomplish their tasks in furtherance of national security.” Navy

SEAL,

, at *9.

In a RFRA case, however, the more important question is whether the military has a

compelling government interest in vaccinating the particular servicemember at issue. Plaintiff,

like the plaintiff in Navy SEAL, seems to suggest that the military’s general compelling interest

in ensuring the health of its servicemembers does not distill to a compelling interest in ensuring

that Plaintiff remains healthy enough to accomplish her duties. As the Court explained in Navy

SEAL, it likely does by logic alone, but the Court nevertheless must look to Captain Creaghan’s

duties specifically.

As Captain Creaghan argues at length in her supplemental briefing, her role is quite

different from a Navy SEAL. Unlike a Navy SEAL, who must be deployable at a moment’s

notice and whose sickness on a mission could doom an entire team, it appears Captain Creaghan

does not deploy and works solely in an office setting. ECF No. 22-10 at 2. Captain Creaghan

argues that this difference alone means the military does not have a compelling interest in her

vaccination. Pl.’s Supp. Br. at 1-2.

To the extent that the main benefit of vaccination against the most prevalent SARS-CoV-

2 variants and subvariants at the moment is reducing the severity and duration of disease, the

inquiry centers on the military consequences of Captain Creaghan’s heightened risk of severe

COVID absent vaccination. See Navy SEAL,

at *10. The question is both

actuarial, to the extent that Plaintiff presents a factual question about the degree of risk, and

tactical, to the extent to which Plaintiff challenges Defendants’ insistence that Plaintiff’s

vaccination is necessary to safeguard the military tasks with which she has been entrusted. As

the Court explained in Navy SEAL, assuming such a question is justiciable, there may well be

18 some roles in the military that are entirely fungible and servicemembers who are entirely

replaceable with little to no adverse effects on military interests. Plaintiff argues that this is such

a case, relying on her direct commanding officer’s initial recommendation that Plaintiff’s request

for an exemption be approved. Pl.’s Supp. Br. at 4.

As the Court explained above, Col. Andrea found that “[t]he projected impact to

[Plaintiff’s] unit is low” if she remains “unvaccinated.” ECF No. 22-13 at 89. He suggested that

Plaintiff’s unit “has backup personnel available to provide positional coverage in the event of

any operations personnel requiring quarantine.”

The “backup personnel” appear to come, at

least in part, from the fact that Plaintiff works in shifts such that there are other officers nearby

who execute the same job. ECF No. 23-1 at 8. Part of his opinion, however, also relied on the

fact that Plaintiff had previously contracted COVID. ECF No. 22-13 at 89.

To be sure, Col. Andrea’s recommendation, ratified by his commanding officer, is

entitled to its own due regard as an exercise of military expertise and judgment. As Plaintiff’s

commanding officer, he understands her role better than anyone else, and his view is certainly

due even more regard if, as Plaintiff alleges, the RRT that recommended denial of Plaintiff’s

request neither “talked with [Plaintiff]” or visited her command. ECF No. 23-1 at 4. That

various officers within Plaintiff’s chain of command came to different conclusion when

exercising their military expertise and that at least two of them consider Plaintiff fairly fungible

is strong support for Plaintiff’s RFRA claim.

Ultimately, however, not strong enough for a preliminary injunction. First and foremost,

a religious exemption from a medical requirement always starts from a disadvantaged position

relative to other requests because, as the previously explained, there can be no greater military

interest than in keeping each servicemember fit and healthy enough to accomplish their duties.

19 See Navy SEAL,

, at *10. Plaintiff argues that Navy SEAL and this case are

distinguishable on the facts. The Court disagrees. As an officer, the military likely has a greater

interest in her health than enlisted personnel. See Short,

, at *6. Additionally,

Plaintiff’s specific duties strike the Court as relatively more important to national security. She

has “operational control and on-line decision-making responsibilities for all aspects of NRO

operations,” which evidently includes maintaining the integrity of military spacecraft while

executing highly sensitive and important missions. ECF No. 22-10 at 2. Major General Shipton

relied on these facts in recommending denial, ECF No. 22-13 at 92, and her argument, ratified by

Lieutenant Generals Whiting and Miller, is compelling. Although a close call, the Court is

inclined to find––on this record and at this early stage of the case––a compelling government

interest in Plaintiff’s vaccination.

As for whether vaccination is the least restrictive means, the Court already concluded on

a similar record that “the military’s scientific and medical conclusion [that nothing less than

vaccination sufficiently protects a servicemember from the consequences of COVID-19], which

rest[s] on the great weight of scientific authority,” should not be rejected, and the Court is not

inclined to depart from that tentative position. See Navy SEAL,

, at *11. In

addition to arguments the Court addressed in Navy SEAL, Plaintiff also argues that vaccination

cannot be the least restrictive means because “Defendants do not prohibit contact outside of

work.” 8 On this record, like in Church, that is all the more reason vaccination may be necessary.

8 Plaintiff also argues that “Defendants choose not to extend its [vaccination] mandate to contractors [who] work in the same space, on the same matters.” Repl. at 14. That seems to be incorrect. The Executive promulgated a regulation requiring all federal contractors to be vaccinated against COVID-19, but that regulation has been preliminarily enjoined nationwide. Georgia v. Biden, --- F. Supp. 3d ---,

(S.D. Ga. Dec. 7, 2021), appeal pending, No. 21-14269 (11th Cir.). 20 See

, at * 19 (“Civilian employees who continue to telework do not live in a

vacuum.”)

Plaintiff also asserts, relying on Air Force Officer, that the Air Force is “rubber

stamping” exemption denials. Repl. at 15 (citing

, at *11 (“the Court easily

finds that the Air Force’s process to protect [RFRA] rights is both illusory and insincere”)). On

this record, such a finding is much more difficult. Defendants represent, and Plaintiff does not

contest, that the Air Force has approved forty-one religious exemption requests. Opp. at 9.

Plaintiff evidently thinks this number too low, but a low approval rate is not itself evidence of

cursory review of exemption requests. The review process here was also much lengthier and

more involved than in Navy SEAL. Defendants’ Exhibit 12, “Captain Creaghan Religious

Accommodation Request Package,” is 111 pages. Aside from the RRT, Captain Creaghan’s

request was reviewed by five officers, including the Surgeon General of the Air Force, who each

issued individual, specific findings. The RRT report also made specific findings based on its

characterization of Plaintiff’s duties. It found that Captain Creaghan was “responsible for

directing daily operations and maintenance for NRO space and ground systems and assuring

overall spacecraft health and mission success.” ECF No. 22-13 at 63. It concluded that Plaintiff

is “a practicing Catholic who believes she would be a willing participant and beneficiary of

abortion” and thereby holds a sincere religious belief. Id. at 65. It found a “compelling

government interest in ensuring military mission success” through vaccination. Id. at 66. It

further found that “[t]elework is not a viable less restrictive means, because [Plaintiff’s] duties

require physical presence on an operations floor with 110 personnel.” Id. at 67. On the Court’s

reading, Lieutenant General Whiting had a full record with findings specific to Plaintiff’s beliefs

and duties when he denied Plaintiff’s request.

21 As such, and on the whole, there remain a number of questions as to whether Plaintiff can

carry her burden to show that she is likely to succeed on her RFRA claim on the record at this

time.

C. Irreparable Harm

The Court next considers whether Plaintiff has demonstrated “irreparable harm.”

CityFed Fin. Corp. v. Office of Thrift Supervision,

, 747 (D.C. Cir. 1995). To

constitute “irreparable harm,” the injury alleged must be both “certain and great, actual and not

theoretical, beyond remediation, and of such imminence that there is a clear and present need for

equitable relief.” Mexichem Specialty Resins, Inc. v. EPA,

(D.C. Cir. 2015)

(cleaned up). A mere “possibility of irreparable harm” is not enough; a plaintiff must

demonstrate that the alleged injury is “likely in the absence of a injunction.” Winter v. Nat’l Res.

Def. Council, Inc.,

(2008) (cleaned up). Plaintiff has not carried her burden.

First, it is somewhat unclear whether separation proceedings are actually certain to

proceed. Although Plaintiff’s direct commanding officer warned that “if the initial dose is not

completed by [a] deadline, initiation of administrative discharge will be pursued,” ECF No. 8-5

at 4 (emphasis added), the applicable form letter provides that “[f]ailure to comply with this

lawful order may result in administrative and/or punitive action,” id. at 2 (emphasis added).

Were separation proceedings, or any other adverse action, certain to occur, Plaintiff has not

shown that those actions would be irreparable. See Navy SEAL,

, at *15 (“[a]n

adverse fitness report may be purged from Plaintiff’s files, adverse separation proceedings may

be dissolved,” and military records can be corrected in subsequent proceedings). Nor has

Plaintiff demonstrated how the financial consequences of discharge are the sorts of loss of

employment benefits that, as the Court held in Church, is not irreparable harm absent a

22 “genuinely extraordinary situation.”

, at *15 (citing Sampson v. Murray,

, 92 n.68 (1974); see also Short,

, at *9 (citing Hartikka v. United

States, 754 1516, 1518 (9th Cir. 1985) (“loss of income, loss of retirement and relocation pay,

and damage to [the plaintiff’s] reputation resulting from the stigma attaching to less than

honorable discharge” are not irreparable injuries)). Finally, as the Court explained in Navy

SEAL, because Plaintiff likely only faces the deprivation of a statutory right, Plaintiff has not

shown irreparable injury predicated on the loss of a constitutional right. See

,

at *16.

D. Public Interest

“The final two factors the Court must consider when deciding whether to grant a

preliminary injunction are the balance of harms and the public interest.” Sierra Club v. U.S.

Army Corps of Eng’rs,

(D.D.C. 2013). Where, as here, the government is

a party to the litigation, these two factors merge and are “one and the same, because the

government’s interest is the public’s interest.” Pursuing Am.’s Greatness v. FEC,

(D.C. Cir. 2016). “Although allowing challenged conduct to persist certainly may be

harmful to a plaintiff and the public, harm can also flow from enjoining an activity, and the

public may benefit most from permitting it to continue.” Sierra Club,

.

Therefore, when “balanc[ing] the competing claims of injury,” the Court must “consider the

effect on each party of the granting or withholding of the requested relief.” Winter v. Nat’l Res.

Def. Council, Inc.,

(2008).

On the present record, as in Navy SEAL, the public’s interest in military readiness and the

military’s interest in Plaintiff’s health outweigh Plaintiff’s religious liberty interest. See

*17. As the Court explained in Church, the military has concluded, based on a

23 long and detailed scientific record, that vaccination is necessary to protect its servicemembers

individually and to further national security more broadly.

, at *19. At the

very least, without a lengthier record, the Court would not be inclined to “disturb th[o]se well-

found military judgments.”

Nor has Plaintiff offered any reason in this case for the Court to

depart from Navy SEAL and Church.

IV. CONCLUSION

An appropriate order accompanies this memorandum opinion.

Dated: May 12, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

24