McFarland ordered the Air Force to refrain from disciplinary or separation measures against a class of what plaintiffs’ advocates say are 10,000 unvaccinated service members.
Attorneys have estimated that some 80 to 100 Airmen at Wright-Patterson Air Force Base are involved in the case.
The legal class in this case is a group of Air Force members seeking an exemption from the military’s COVID-19 vaccine mandate for reasons of religious belief.
“The plaintiffs have contended throughout this litigation that even the handful of exemptions that the department (of the Air Force) has approved were granted only to service members who were nearing the end of their service term and thus eligible for an administrative exemption anyway,” the circuit court said.
As of Sept. 6, the Air Force had granted 23 administrative exemptions from the vaccine mandate to active-duty service members and 674 “total force” administrative exemptions — exemptions to members of the National Guard and the Air Force Reserve. The service counts religious accommodations as a subset of administrative exemptions.
“From the very first paragraph of their complaint, to their briefing in opposition to the department’s motion now, the plaintiffs have alleged the existence of a ‘systematic effort’ by the department to deny service members’ requests for religious exemptions categorically, while granting thousands of medical and administrative exemptions,” the court wrote.
The court held that the lower district court was correct when it maintained that the plaintiffs’ contentions support litigation based on the Religious Freedom Restoration Act of 1993 and the First Amendment.
“We differ with the district court, however, as to what that relief might look like,” the circuit court did add. “The court appeared to assume that such relief would broadly enjoin the department to provide a class-wide ‘religious accommodation relating to the COVID-19 vaccine mandate.’ But an appropriate remedy might more narrowly enjoin the department to abolish the discriminatory policy, root and branch, and to enjoin any adverse action against the class members on the basis of denials of religious exemptions pursuant to that policy.”
The Air Force has declined to comment on ongoing litigation. But service leaders have said vaccinations are an important part of fitness and military readiness.
A December 2021 memo from the Air Force directs commanders to take “appropriate administrative and disciplinary actions consistent with federal law and Department of the Air Force ... policy in addressing service members who refuse to obey a lawful order to receive the COVID-19 vaccine and do not have a pending separation or retirement, or medical, religious or administrative exemption.”
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