Opinion
8:21-cv-2730-TPB-CPT
06-24-2022
HOWARD CROSBY, et al., Plaintiffs, v. LLOYD AUSTIN, III, et al., Defendants.
ORDER ON DEFENDANTS' MOTION TO DISMISS
TOM BARBER UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendants' “Motion to Dismiss,” filed on June 1, 2022. (Doc. 60). On June 22, 2022, Plaintiff Howard Crosby filed a response in opposition. (Doc. 62). Having carefully considered the motion, response in opposition, the court file, and the record, the Court finds as follows:
Plaintiff, a noncommissioned officer in the United States Army, challenges the U.S. military's covid-19 vaccine mandate. His challenges are based on alleged violations of: (1) informed consent laws due to the alleged unavailability of an FDA-licensed vaccine; (2) the Administrative Procedure Act (“APA”); (3) the Religious Freedom Restoration Act (“RFRA”); and (4) the First Amendment's Free Exercise Clause.
Upon review, the Court finds that all of Plaintiff's claims, other than his religious objections, are subject to dismissal for a “simple overarching reason: Under Article II of the Constitution, the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces.” Austin v. U.S. Navy Seals 1-26, 142 S.Ct. 1301, 1302 (2022) (Kavanaugh, J., concurring). For this reason -separation of powers - it is unnecessary to discuss the various legal arguments made here in detail. At the end of the day, the outcome is the same. The President, not the federal courts, runs the U.S. military. Except for Plaintiff's religious claims, the Court declines to intrude upon the authority of the Executive in military affairs and will not attempt to adjudicate the wisdom of professional military judgments.
Reasonable people may certainly disagree with the professional military judgments that have been made to terminate the employment of numerous individuals over what is, indisputably, a highly-charged political issue about which many Americans hold very strong convictions on both sides. The wisdom of these decisions is particularly troubling where, as here, a response less severe than outright termination is possible, and the individuals being terminated have long and distinguished records of military service, including service in combat where they have been deployed around the globe in harm's way, voluntarily placing their lives on the line for the country. Nonetheless, the fact remains that under our system of government, the Executive is in charge of the military and, absent a valid religious concern, is generally free to implement the policies at issue in this case without interference from the courts.
As to Plaintiff's religious claims, in the interest of judicial economy, the Court will transfer this case to the Honorable Steven D. Merryday, with his consent, as it appears related to a pending class action lawsuit before his Honor.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) All claims, other than Plaintiff Howard Crosby's religious objections, are hereby DISMISSED.
(2) The Clerk is directed to transfer this case to the Honorable Steven D. Merryday, with his consent.
DONE and ORDERED.