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 26, 2022) On September 3, 2021, the Secretary of the Air Force added a medical requirement for all

members of the Air Force and Space Force, vaccination against COVID-19. Plaintiff, a Captain

in the Space Force, requested a religious exemption from this medical requirement, alleging that

it substantially burdened her religious beliefs. Although Space Force and Air Force leadership

agreed that the medical requirement substantially burdened her beliefs, they denied her request

for an exemption, concluding that the medical requirement is the least restrictive means to

further the military’s interest in Plaintiff’s health specifically and force readiness more broadly.

Plaintiff disagrees, and moved for a preliminary injunction in this Court, claiming that enforcing

the medical requirement would violate: (1) the Religious Freedom Restoration Act, 42 U.S.C. §§

2000bb et seq.; (2) the First Amendment; and (3) the Fifth Amendment. On May 12, 2022, the

Court denied Plaintiff’s request for preliminary relief. The Court concluded that Plaintiff was

not likely to succeed on the merits, did not show impending, irreparable harm, and that the

balance of the equities weighed against a preliminary injunction. Presently pending before the

Court is Plaintiff’s [29] Motion for Injunction Pending Appeal of the Court’s order denying

1 preliminary relief. Upon consideration of the briefing, 1 the relevant legal authorities, and the

entire record, the Court shall DENY Plaintiff’s [29] Motion.

I. BACKGROUND

For a more detailed background on this case, the Court refers the reader to its [27]

Memorandum Opinion. The medical requirement at issue in this case was first made applicable

to Plaintiff’s branch of service on September 3, 2021. Creaghan v. Austin,

, at

*2 (D.D.C. May 12, 2022). 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.

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.

As of April 26, 2022, the

Air Force has granted 460 medical exemptions (including seven for Space Force Guardians), and

41 religious exemptions. Creaghan,

, at *2.

Plaintiff’s request for an exemption went through six levels of review: (1) Plaintiff’s

first-, second-, and third-level commanding officers; (2) a five-member, interdisciplinary

“Religious Resolution Team” (“RRT”); (3) the commanding general of the Space Force, Lt. Gen.

Stephen Whiting; and (4) the Surgeon General of the Air Force, Lt. Gen. Robert Miller.

at

1 The Court’s consideration has focused on the following: • Plaintiff’s Motion for Injunction Pending Appeal (“Mot.”), ECF No. 29; • Defendants’ Opposition to Plaintiff’s Motion for an Injunction Pending Appeal (“Opp.”), ECF No. 32; and • Plaintiff’s Reply in Support of Plaintiff’s Motion for an Injunction Pending Appeal (“Repl.”), ECF No. 33. In an exercise of its discretion, the Court finds that holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f). 2 *3-4. Although the first two levels of review recommended granting Plaintiff’s request, the final

four opted for denial.

In its report recommending denial, the RRT made a number of findings

to guide Lieutenant General Whiting in his ultimate decision. First, the RRT noted that, as a

Captain assigned to the Space Force’s National Reconnaissance Office (“NRO”), Plaintiff “is

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. The RRT

noted that, although Plaintiff is currently “in a non-deployable position,” she may have to travel

in the future.

The report found that NRO “[p]ersonnel are required to take a COVID test

every 7 days.” The RRT further found that “[v]accines are an integral part of force health

protection measures” and assure servicemembers’ “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 fitness to continuing serving” in their assigned role. See

id. at 66. Finally, it found that “vaccination remains the best way to protect individuals, their

families, and the community.” Id. at 67.

Per the RRT’s report, and on his own independent judgment, Lieutenant General Whiting

found that for “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 the military’s interest in Plaintiff’s

health and readiness specifically. Creaghan,

, at *4. The Surgeon General of

the Air Force agreed.

The Surgeon General attached supporting documentation in which the

Air Force found that “personnel are much less likely to develop severe disease, be hospitalized,

or die as a result of being vaccinated.” ECF No. 22-13 at 105. The Air Force also concluded

3 that there was no superior health measure to combat COVID-19 among Airmen and Guardians,

including perpetual masking. Id. at 106.

In its Memorandum Opinion denying Plaintiff’s [11] Motion for Temporary Restraining

and/or Preliminary Injunction, the Court incorporated its legal reasoning in Navy SEAL v. Austin,

(D.D.C. Apr. 29, 2022). Creaghan,

, at *5. In so doing,

the Court concluded broadly that Plaintiff was unlikely to succeed on the merits of any of her

claims, did not show impending, irreparable harm, and the balance of the equities weighed

against preliminary relief. See id. at *1. In dicta, the Court was concerned that a challenge to a

military vaccination order may not be justiciable, either because such an order involves

nonjusticiable review of discretionary military judgments or because such an order involves

nonjusticiable review of scientific and medical judgments textually committed to another branch

of government. Id. at *5-6. Even if the question were justiciable, the Court opined that it is

more likely than not that Defendants have a compelling government interest in vaccinating

Plaintiff specifically and that vaccination is the least restrictive means to protect Plaintiff against

the adverse effects of COVID-19 infection. Id. at *7-10. Additionally, having incorporating

Navy SEAL, the Court concluded that binding Supreme Court precedent extends only rational

basis review to Plaintiff’s constitutional claims. See Navy SEAL,

, at *13-14.

Plaintiff firmly disagrees with the Court, having filed the instant motion for a stay pending

appeal. With that motion fully briefed, the Court turns to its resolution.

II. LEGAL STANDARD

A party that moves for a stay pending appeal bears the burden of showing that the

balance of four factors weighs in favor of the stay:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the

4 prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.

Cuomo v. U.S. Nuclear Regulatory Comm’n,

, 974 (D.C. Cir. 1985). A stay

pending appeal, like a preliminary injunction, is “an extraordinary remedy.” Id. at 978.

“[W]here a plaintiff cannot show a likelihood of success on the merits, ‘it would take a very

strong showing with respect to the other preliminary injunction factors to the turn tide in

plaintiff’s favor.’” Al-Anzi v. Bush,

(D.D.C. 2005) (quoting Davenport

v. Int’l Bhd. of Teamsters,

(D.C. Cir. 1999)).

III. DISCUSSION

For the reasons already stated in the Court’s [27] Memorandum Opinion, Plaintiff is

unlikely to succeed on the merits. To prevail on appeal, Plaintiff would have to make a number

of showings. First, Plaintiff would have to convince the Court of Appeals that neither of the

justiciability doctrines the Court identified apply in this case. Even if she did so, she would then

have to show that Defendants do not have a compelling interest in her health and readiness or,

even so, that vaccination is not the narrowest means to secure that interest. This is a heavy

burden to carry.

In her instant Motion, Plaintiff mainly argues that the Court misapprehended RFRA’s

legal standard and that, had it properly applied RFRA, the Court ought to have concluded that

Plaintiff was likely to succeed on her RFRA claim. Not so. As an initial matter, Plaintiff repeats

her argument that the Court incorrectly surmised in Navy SEAL that the military’s scientific and

medical judgments should receive some level of regard in determining whether a particular

medical requirement is in fact narrowly tailored. Repl. at 5. Even if the military’s scientific and

medical judgments are due no regard at all in this type of case, Plaintiff would still be unlikely to

succeed on the merits of her RFRA claim. See Roth v. Austin,

, at *20-24 (D.

5 Neb. May 18, 2022) (disagreeing with the Court’s tentative opinion that military, scientific

judgments are entitled to due regard in assessing whether a military order is narrowly tailored but

holding that Airmen were unlikely to succeed on RFRA claims for vaccination exemptions). As

the Court already explained, and as Roth, for example, agreed in considering this Court’s [27]

Memorandum Opinion, by “logic alone,” the “military’s general compelling interest in ensuring

the health of its servicemembers [likely] distill[s] to a compelling interest in ensuring that

Plaintiff remains healthy enough to accomplish her duties.” Creaghan,

, at

*9; accord Roth,

at *20-21. As already noted, that Plaintiff claims she works

in close proximity to unvaccinated federal contractors is either immaterial or even more reason

for the military to require her vaccination. See Creaghan,

, at *10 & n.8.

Similarly, as this Court concluded in Navy SEAL and repeated in Creaghan, Roth

concluded on a very similar record that the military adequately showed that vaccination is “the

least restrictive means to accomplish its compelling interest”––even extending the military no

deference whatsoever.

at *27. The record shows that the Air Force

considered alternatives to vaccination and rejected all of them as insufficient. For example,

Colonel James R. Poel, Chief of Public Health at the Air Force Medical Readiness Agency,

explains in his declaration how masking, temperature tests, testing, natural immunity, social

distancing, herd immunity, and increased sanitation are all insufficient compared to vaccination.

See generally ECF No. 22-8. Contrary to Plaintiff’s understanding of the record, the Air Force

also considered a number of those alternatives when reviewing Plaintiff’s request specifically

and rejected them. For example, the medical expert on Plaintiff’s RRT wrote that they were

“unaware of any consistent scientific data documenting a less restrictive means than vaccination

which is capable of meeting the government’s compelling interest to protect the health and safety

6 of Airmen and Guardians.” ECF No. 22-13 at 100. Another team member concluded that “[l]ess

restrictive means including social distancing, mask wearing, and/or increased COVID-19 testing

cannot be used to meet the compelling government interest.” Id. at 99. In denying Plaintiff’s

appeal, Lieutenant General Miller attached Air Force medical research illustrating that masks,

prior infection, increased testing, social distancing, and social isolation are all inferior to

vaccination. Id. at 104-10. As in Navy SEAL, the Court was “not inclined to conclude at this

early stage of the case that the military’s scientific and medical conclusions, which rest on the

great weight of scientific authority, should be rejected.” See

, at *11; accord

Roth,

, at *22.

For the proposition that the military should receive no deference in its factual

conclusions, Plaintiff now relies on Ramirez v. Collier,

(2022) and Holt v.

Hobbs,

(2015). Those cases dealt with religious exemption requests in prisons;

both decisions are entirely silent as to the military context. As the Court explained, “‘context is

important’” and the military situation is unique given the long line of Supreme Court precedent

cautioning against intervention in military affairs. Creaghan,

, at *8 (quoting

Navy SEAL,

); see also Austin v. U.S. Navy Seals 1-26,

, 1302

(2022) (Kavanaugh, J., concurring). In consideration of this precedent, and in light of RFRA’s

legislative history indicating that Congress did not intend RFRA to “adversely impair the ability

of the U.S. military to maintain good order, discipline, and security,” S. Rep. No. 103-111 at 12,

the Court joined at least two other district courts in concluding that the military’s scientific

determinations are due at least some weight in judicial review of a military RFRA claim. See,

e.g., Short v. Berger,

, at *7 n.12 (C.D. Cal. Mar. 3, 2022); Poffenbarger v.

Kendall, --- F. Supp. 3d ---,

, at *18 (S.D. Ohio Feb. 28, 2022). Even then, the

7 level of deference, the Court opined, that may be due is much more akin to the Supreme Court’s

conclusion in Holt that “courts should respect th[e] expertise” of prison officials in reviewing a

denial of a request for a religious exemption. See 574 U.S. at 364.

To the extent that Plaintiff complains that the reviewing authorities did not sufficiently

address her circumstances, see Repl. at 6-7, the Court has already explained that the record

shows otherwise, see Creaghan,

at *10 (listing a number of findings

individual to Plaintiff in the record). 2 In any event, RFRA states solely that a substantial burden

on a “person’s exercise of religion” is justified only if it is in furtherance of a compelling

government interest and is narrowly tailored. 42 U.S.C. §2000bb-1(b). The Court did not read

the statute to impose any investigatory requirements on the government ab initio and Plaintiff

cites no authority for such a proposition.

As to irreparable harm, Plaintiff again mainly relies on the likely incorrect proposition

that a likely RFRA violation is per se irreparable harm. Mot. at 10. To be sure, the Tenth

Circuit held as much in Hobby Lobby Stores, Inc. v. Seblius,

(2013), but

that is not the law of this Circuit. As the Court has explained, only by showing a likely

“deprivation of constitutional[, not merely statutory,] rights” does a plaintiff show irreparable

harm. Navy SEAL,

, at *16 (quoting Archdiocese of Wash. v. Wash. Metro.

Area Transit Auth.,

(D.C. Cir. 2018)). In any event, even if the Court were to

adopt the Tenth Circuit’s approach, Plaintiff has not shown a likelihood of success on her RFRA

claim, and therefore has not shown a likelihood of irreparable harm under Tenth Circuit law.

2 Plaintiff also briefly suggests that an evidentiary hearing on Plaintiff’s motion for preliminary relief might have been warranted. This is the first time Plaintiff has raised the issue and, as Plaintiff states, “there are no conflicting facts in the record.” See Mot. at 7. The Court stresses that it did not make factual findings or resolve factual disputes in its [27] Memorandum Opinion. It solely made a limited number of broad legal conclusions. 8 Finally, as to the balance of the equities, the Court reiterates that any invocation of a

“religious liberty interest is . . . always weighty.” Navy SEAL,

, at *17.

Nevertheless, the Court joins other courts in concluding that the military’s “interest in preventing

COVID-19 from impairing the readiness and the health of its forces, including individual service

members like Plaintiff[], is in the public interest.” See, e.g., Roth,

, at *31.

Particularly given the weakness of Plaintiff’s case on the merits, an injunction pending appeal

would harm that public interest.

IV. CONCLUSION

For the reasons discussed above, Plaintiff’s Motion for Injunction Pending Appeal is

DENIED. An appropriate order accompanies this memorandum opinion.

Dated: May 26, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

9