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US judge blocks Air Force from kicking out, punishing thousands of unvaccinated troops

Tech. Sgt. Joseph Anthony holds a COVID-19 vaccine vial at the Pittsburgh International Airport Air Reserve Station, Pennsylvania, Feb. 4, 2021. (U.S. Air Force photo by Joshua J. Seybert)
July 14, 2022

On Thursday, a federal judge in Ohio put a temporary stop to the U.S. Air Force kicking out thousands of service members who remain unvaccinated against COVID-19.

Judge Matthew W. McFarland, of Ohio’s Southern District, granted a temporary restraining order in the case of Hunter Doster, et al. v. Hon Frank Kendall, et al., in which Doster and other service members sued the Air Force Secretary to grant religious exemptions to the service’s COVID-19 vaccine mandate.

McFarland’s ruling grants class status in a class action lawsuit to Airmen, Space Force Guardians, Air National Guardsmen and Air Force Academy and Air Force Reserve Officer Training Corps (AFROTC) cadets who submitted a religious accommodation request for the vaccine mandate from Sept. 1, 2021, to the present, and who were confirmed by an Air Force Chaplain as having had a sincerely held religious belief, and who either had their requests denied or still-pending accommodations.

McFarland also granted a temporary restraining order, thus preventing the Air Force from enforcing its vaccine mandate, which can entail punishments and involuntary separations from the service, against the lawsuit class.

“They face separation from the Air Force and other disciplinary measures. A single injunction would provide relief to the entire class,” McFarland wrote. “Indeed, the main purpose of a [lawsuit class] is to provide relief through a single injunction or declaratory judgment. Because Defendants have uniformly maintained a policy of overriding Airmen’s religious objections to the COVID-19 vaccine, they have acted ‘on grounds that apply generally to the class.’ Moreover, the class definition requires that a Chaplain certify that the airman’s religious beliefs are sincerely held. Finally, a single injunction would provide the proposed class with the relief they seek from the harm they stand to suffer.”

As of the Air Force’s latest vaccination statistics posted Tuesday, 6,803 members were denied religious accommodation requests, while 2,847 requests remain pending, and only 104 were approved. Approximately 2.9% of the Air Force’s entire ranks remain unvaccinated. The service has already kicked out 834 members.  

McFarland has ordered the Air Force to provide a response by July 21 as to why he should not extend the temporary restraining order into a preliminary injunction that would apply over the course of the lawsuit. The plaintiffs in the case will then have a chance to respond to the Air Force in no more than 10 pages by July 25.

Mat Staver, the founder and chairman of Liberty Counsel — a religious freedom organization that has been supporting the Air Force plaintiffs in their lawsuit — said, “This is a great decision that grants protection for the religious freedom for all Air Force personnel from Joe Biden’s unlawful COVID shot mandate.”

“No service member should be required to choose between service to the country and service to God. Liberty Counsel will be pursuing class-wide protection for the remaining branches of the military,” Staver added.

Daniel Schmid, an attorney for Liberty Counsel, told American Military News that Liberty Counsel is aware of service members within the lawsuit class who have begun to receive their separation packages but that no service members in the class have hit their separation dates and that the judge’s order will pause those separations for now.

Schmid also said McFarland’s decision to grant a temporary restraining order is an indicator that the plaintiffs can expect him to grant a longer preliminary injunction soon that could last for the duration of their lawsuit against the Air Force.

Schmid said, “Because there’s nothing new that the [Department of Defense] will put forward [McFarland’s] analysis is likely to be the same,” for a preliminary injunction as it was for the temporary restraining order he granted on Thursday. “And generally, if you get a [temporary restraining order] it most often, not always but most often, converts to a preliminary injunction.”