Dual federal lawsuits have been filed against the Air Force arguing that the service has unjustly denied requests for religious exemptions from the military’s COVID-19 vaccine mandate.
Both suits were filed in Cincinnati’s federal court, with the more recent action naming at least 18 plaintiffs, of whom at least 10 officers and one enlisted Airman are said to serve, or recently have served, at Wright-Patterson Air Force Base.
In a separate but related case, a second lieutenant serving at Wright-Patterson is suing Air Force leaders over what he said was the “perfunctory” denial of a request for a religious exemption.
That suit was the earlier one, filed last month by Michael Poffenbarger, a second lieutenant serving at the 455th Operational Support Squadron at Wright-Patterson. It seeks a preliminary injunction against the Air Force from taking “punitive action” against him.
The more recent suit, representing 18 plaintiffs, was filed last week.
“On a perfunctory basis, the request for the religious exemption was denied, citing force protection requirements; in fact, the Air Force has failed to approve a single religious accommodation request,” Poffenbarger’s attorney wrote in the initial January filing. “While at the same time, it has approved thousands of administrative or medical exemptions to the same requirements.”
Earlier this month, the Air Force said it approved the first religious exemptions from the COVID-19 vaccine mandate, with eight exemptions approved, along with one appeal that had sought an exemption.
In his suit, Poffenbarger said he was interviewed multiple times by an Air Force chaplain to determine the sincerity of his beliefs. “The result of each interview confirmed the sincerity of his beliefs and that the Air Force’s vaccination policy substantial burdened those beliefs,” the suit said.
More affected Air Force members may be named in either lawsuit as “class” members, plaintiffs’ attorney Chris Wiest said. He filed on behalf of Poffenbarger and those “similarly situated.”
Asked why so many of his clients serve at Wright Patterson, Wiest said he filed the first suit on behalf of Poffenbarger.
“Other people at Wright-Patterson found out we did it, and we started getting calls,” he said. “It was that simple.”
In January, Judge Thomas Rose denied Poffenbarter’s request for an emergency temporary restraining order. A motion to reconsider that decision was also denied.
In a response filing, Air Force attorneys said the motions for restraining orders should be denied for multiple reasons.
“The Air Force’s interest in protecting the health of its service members to carry out its mission is indisputably compelling, and there is no basis for the court to conclude that plaintiff’s proposed less restrictive alternatives … would protect the military’s compelling interests as effectively as immunization,” the service said.
In an interview Tuesday, Wiest responded by saying that if that were true, the Air Force would not be granting “thousands” of administrative and medical exemptions.
Exemption requests made on the basis of religious beliefs “deserve equal treatment to the medical and administrative exemptions,” he said. Wiest contends that U.S. Supreme Court case law is on his side.
As of Feb. 14, the Air Force had granted 1,824 “total force” (active-duty, Reserve and National Guard) vaccine mandate exemptions and 1,432 total force medical exemptions.
A spokeswoman for the Air Force Tuesday said it is the Department of the Air Force’s policy not to comment on litigation.
Defendants listed in Poffenbarger’s suit include Air Force Secretary Frank Kendall, Lt. Gen. Robert Miller, Air Force surgeon general; and Col. Raymond Smith, commander of the 445th Airlift Wing, which is based at Wright Patterson. In all, seven defendants are named in that action.
A federal judge in Georgia temporarily blocked the Air Force from punishing an officer who filed a lawsuit in January after she was denied a religion-based exemption from the vaccine mandate, Stars and Stripes newspaper reported last week. The unnamed officer is based at Robins Air Force Base, Ga., the newspaper said.
The Air Force has said that those who refuse to obey the order to be vaccinated will face disciplinary actions, including discharge from the service without involuntary separation pay.
Wiest thinks the Poffenbarger case could be decided by Judge Rose in the next week to 10 days.
“We don’t bring these kinds of cases unless we’re fairly certain we’re going to prevail,” he said.
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