Opinion
Case No. 22-CV-118-SWS
2022-08-22
Nicholas MILLER and Levi L. Lindskog, Plaintiffs, v. Lloyd J. AUSTIN, in his official capacity as Secretary of the United States Department of Defense, Frank Kendall III, in his official capacity as Secretary of the United States Air Force, and Robert I. Miller, in his official capacity as Surgeon General of the United States Air Force, Defendants.
Casandra A. Craven, Longhorn Law LLC, Cheyenne, WY, for Plaintiffs. Jeremy A. Gross, C. Levi Martin, United States Attorney's Office, Cheyenne, WY, Jody D. Lowenstein, Pro Hac Vice, DOJ-Civ, Federal Programs Branch, Washington, DC, for Defendants.
Casandra A. Craven, Longhorn Law LLC, Cheyenne, WY, for Plaintiffs. Jeremy A. Gross, C. Levi Martin, United States Attorney's Office, Cheyenne, WY, Jody D. Lowenstein, Pro Hac Vice, DOJ-Civ, Federal Programs Branch, Washington, DC, for Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION AND ORDERING PLAINTIFFS TO SHOW CAUSE
Scott W. Skavdahl, United States District Judge
Plaintiffs initiated this lawsuit in May 2022 but did not attempt service of process until August 1, 2022. Several days later, Plaintiffs filed a Motion For A Temporary Restraining Order Or Preliminary Injunction (ECF No. 4), asking this Court for immediate relief, despite making no progress in the case for nearly three months. The Court is unpersuaded by this artificial emergency. Beyond that, the case is not ripe for judicial review and Plaintiffs have not suffered an actual, concrete injury. Plaintiffs' motion must be denied.
Factual Background
Plaintiffs are both technical sergeants in the United States Air Force ("USAF"), stationed at F.E. Warren Air Force Base in Cheyenne, Wyoming. (ECF No. 1 at 2-3.) Both Plaintiffs submitted a request for religious exemption from the USAF COVID-19 vaccination mandate. Plaintiffs' religious beliefs prevent them from placing anything in their body "without confirmation and conviction from the Holy Spirit." (ECF No. 1 at 12.) Their religious beliefs also preclude them from utilizing any vaccine derived from aborted fetuses. (Id.) Although the military chaplain echoed the sincerity of both Plaintiffs' religious beliefs (ECF No. 1 at 9-10, 28), the USAF has instituted negative personnel actions against them (ECF No. 5 at 25-26). The USAF also denied their initial requests for immunization exemptions and the subsequent appeals. (ECF No. 1 at 36). Plaintiff Miller is facing discharge from the USAF and Plaintiff Lindskog received a notice for separation and was denied his retirement date. (Id. at 26.)
On August 24, 2021, the Secretary of Defense issued a memorandum requiring all members of the military to be fully vaccinated against COVID-19. Memorandum from United States Secretary of Defense, MANDATORY CORONAVIRUS DISEASE 2019 VACCINATION OF DEPARTMENT OF DEFENSE SERVICE MEMBERS (Aug. 24, 2021). A servicemember is considered fully vaccinated after receiving two doses of an FDA-approved COVID-19 vaccine. Id.
Despite Plaintiffs' complaint referencing numerous exhibits related to Plaintiff Lindskog, the Court only received written exhibits related to Plaintiff Miller. The Court has no corroborating documentation to verify Plaintiff Lindskog's exemption request and appeal. (See ECF No. 1 at 9-11; ECF No. 5 at 10.)
In May 2022, Plaintiffs filed this lawsuit for violation of the Religious Freedom Restoration Act and Violation of Plaintiffs' First Amendment Right to Free Exercise of Religion. (ECF No. 1 at 13, 16.) Nearly three months later, in August 2022, Plaintiff Miller alerted the Court that his separation hearing was set for August 25, 2022, which warranted the immediate relief provided by a preliminary injunction and temporary restraining order. (Id.)
Defendants submitted a comprehensive response brief, despite not ever receiving proper service in this case. (ECF No. 15.) Defendants first argue Plaintiffs' claims are not ripe for review because neither Plaintiff has actually been discharged from the military—they are trying to avoid the possibility of involuntary separation. (Id. at 24.) Moreover, their claims are still subject to an internal USAF review process and so their religious exemption (or lack thereof) is not subject to judicial intervention at this time. (Id. at 25.) Beyond this, there is already a pending class action in the Southern District of Ohio. Doster v. Kendall, No. 22-CV-84, 2022 WL 2974733, at *1 (S.D. Ohio July 27, 2022). Because of the pending class action, Miller's separation hearing has been paused indefinitely. (See ECF No. 15 at 21; ECF No. 15-8 at 10.)
As of the date of this Order, it still appears service has not been completed on Defendants. (ECF No. 15 at 19.)
Perhaps reading the writing on the wall in light of Defendants' numerous counterarguments, Plaintiffs did not submit a reply brief. As such, the Court did not have the opportunity to evaluate any counterarguments as to the pending class action, the pause on Miller's August 25 discharge proceeding, or the ripeness of the lawsuit. The Court now considers the motion based on Plaintiffs' initial written brief and Defendants' response brief.
On July 27, 2022, the Southern District of Ohio certified a class to include all active-duty members of the United States Air Force: who:
(i) submitted a religious accommodation request to the Air Force from the Air Force's COVID-19 vaccination requirement, where the request was submitted or was pending, from September 1, 2021 to present; (ii) were confirmed as having had a sincerely held religious belief substantially burdened by the Air Force's COVID-19 vaccination requirement by or through Air Force Chaplains; and (iii) either had their requested accommodation denied or have not had action on that request.The only class members excluded are those who have given written notice of their election to opt out. Id. There is no evidence Plaintiffs here opted out of that class. However, the pending class action alone does not preclude Plaintiffs from bringing this lawsuit. Zuniga v. TrueAccord, No. 18-CV-683, 2020 WL 2558229, at *4 (D.N.M. May 20, 2020) ("[t]he Court, however, cannot predetermine the preclusive effect of this class action lawsuit on a separate lawsuit based on Plaintiff's individual claim . . . . ultimately the preclusive effect of the class action judgment will be determined by the court that is hearing the later suit when the defendant raises the judgment as being preclusive") (internal citations and quotations omitted).
Doster, 2022 WL 2974733, at *1.
Legal Standard
The motion before this Court asks for a temporary restraining order and a preliminary injunction. (ECF No. 6.) Because Defendants had an opportunity to submit briefings on the topic, this Court will address the motion as a preliminary injunction. See Williams v. Bednars, No. 3:21-CV-00394, 2021 WL 1093111, at *1-2 (N.D. Tex. Mar. 4, 2021) (addressing a "motion for a temporary restraining order and/or a preliminary injunction" through the same analysis when Defendants had notice of the motions). "When addressing a motion for temporary restraining order, the court applies the same standard as it applies to a motion for preliminary injunction." Rangel-Lopez v. Cox, 344 F. Supp. 3d 1285, 1289 (D. Kan. 2018).
A temporary restraining order is meant to preserve the status quo before a final decision on the merits. Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992). The status quo is defined as "the last peaceable uncontested status existing between the parties before the dispute developed . . ." Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 798 n. 3 (10th Cir. 2019) (internal citations omitted). Whether to grant or deny a preliminary injunction is left to the trial court's discretion. Ute Indian Tribe of the Uintah & Ouray Rsrv. v. Lawrence, 22 F.4th 892, 899 (10th Cir. 2022). "A preliminary injunction is an extraordinary remedy, the exception rather than the rule." Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221, 1232 (10th Cir. 2019) (quoting Free the Nipple—Fort Collins v. City of Fort Collins, Colo., 916 F.3d 792, 797 (10th Cir. 2019)).
A preliminary injunction has the limited purpose of preserving the relative positions of the parties until a trial on the merits can be held. It is an extraordinary remedy never awarded as of right. A party may be granted a preliminary injunction only when monetary or other traditional legal remedies are inadequate, and the right to relief is clear and unequivocal.
Under Rule 65 of the Federal Rules of Civil Procedure, a party seeking a preliminary injunction must show: (1) the movant is substantially likely to succeed on the merits; (2) the movant will suffer irreparable injury if the injunction is denied; (3) the movant's threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.
DTC Energy Grp., Inc. v. Hirschfeld, 912 F.3d 1263, 1269-70 (10th Cir. 2018) (internal citations and quotation marks omitted).
The moving party has the burden to demonstrate they are entitled to a preliminary injunction or a temporary restraining order. Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163, 1171 (10th Cir. 1998). While it is not necessary that plaintiffs prove their likelihood of success beyond all doubt, plaintiffs must show a reasonable probability they will ultimately be entitled to the relief sought on the merits. Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 781 (10th Cir. 1964) (per curiam). They must show more than a mere possibility of success on the merits. People's Trust Federal Credit Union v. National Credit Union Administration Board, 350 F.Supp.3d 1129, 1139 (D.N.M. 2018).
Analysis
"Both standing and ripeness present the threshold jurisdictional question of whether a court may consider the merits of a dispute." Southern Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013). These two issues are often intertwined in analysis. Morgan v. McCotter, 365 F.3d 882, 887 (10th Cir. 2004) (stating justiciability focuses on the "twin questions" of standing and ripeness). The justiciability doctrine of ripeness is designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Nat'l Park Hospitality Ass'n v. Dept. of Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (internal quotations omitted). Standing requires a plaintiff to show he has suffered injury in fact which is (1) concrete and particularized and (2) actual or imminent. S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013).
This is only the first of three elements required to show Article III standing, but this is the only element relevant to analysis here. See S. Utah Wilderness Alliance, 707 F.3d at 1153.
The court may not adjudicate a claim "if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all" because that issue is not ripe. Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal citations and quotations omitted). While federal courts may exercise jurisdiction over military matters when substantial constitutional rights are threatened, the military has a unique chain of command structure that operates in compliance with military procedure and custom. Chappell v. Wallace, 462 U.S. 296, 300, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Because of this unique structure, courts should hesitate before deciding a case which asks the court to interfere with military matters. Id.; see also Clark v. Widnall, 51 F.3d 917, 921 (10th Cir. 1995) (reiterating the "specific limitations within which a civilian court may deal with military affairs"). Courts must not interfere until the military chain of command has been able to fully adjudicate the issues and issue a final decision. Church v. Biden, 573 F.Supp.3d 118, 137 (D.D.C. 2021).
Defendants correctly point out "Plaintiffs have filed this lawsuit to avoid the possibility of involuntary separation." (ECF No. 15 at 24.) Furthermore, due to the pending class action, Defendants confirmed Miller's August 25, 2022 separation hearing has been paused. (ECF No. 15-8 at 10.) There is no current threat of separation. Plaintiffs have not yet suffered a concrete, particularized, actual injury in fact because Plaintiffs have not been separated from the USAF. Plaintiffs do not have standing to bring this issue.
More damning to Plaintiffs' case, however, is the fact that the religious exemption is still subject to administrative review within the USAF. (ECF No. 15 at 25.) Defendants correctly state the law as follows:
[W]ere this Court to address the merits of Plaintiffs' claims before resolution of any separation proceedings, this Court would be required 'to adjudicate internal military affairs before the military chain of command has had full opportunity to consider' them. Church, 573 F.Supp.3d at 137-38; accord Roberts, 2022 WL 834148, at *5-6. Ripeness poses the question not whether it is 'possible' to resolve a claim, but 'whether it is appropriate for the court to undertake the task.' Fourth Corner Credit Union v. Fed. Rsrv Bank of Kan. City, 861 F.3d 1052, 1060-61 (10th Cir. 2017) (citation omitted). Here, 'judicial intervention' at this state would 'inappropriately interfere with further administrative action' on the matter before the Court. See Wyoming, 871 F.3d at 1141-42 (citation omitted); accord Farrell-Cooper Mining Co., 728 F.3d at 1235.
The fact that, at some point in the future, the Air Force may separate or otherwise discipline a Plaintiff for refusing to comply with its COVID-19 vaccination requirement cannot ripen this case. Whether to separate or discipline a service member is a discretionary decision that is left, in the first instance, to the Air Force. See, e.g. Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 163-64,
87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The 'initiation of separation proceedings is [thus] a tentative action not fit for judicial review,' because 'one can only speculate as to the final outcome of any proceedings." Smith v. Harvey, 541 F.Supp.2d 8, 13 (D.D.C. 2008)[.](ECF No. 15 at 25-26.)
In Church, the D.C. District Court considered an almost identical issue. Two active-duty marines submitted religious exemption requests from the COVID-19 vaccine mandate, which were both denied. Church, 573 F.Supp.3d at 129. While the appeals were still pending with the Marine Corps, plaintiffs requested a temporary restraining order and a preliminary injunction. Id. at 130. The court held Plaintiffs' claims of harm were not justiciable because the claims were based on potential and speculative injury. Id. at 136—37. The court refused to issue a decision on internal military affairs before the Marine Corps was able to issue a final decision. Id. The court was also persuaded by the military's administrative appeals process, which offered multiple opportunities for the Plaintiffs to present their arguments before the Marine Corps. Id.
The United States District Court in Colorado relied on Church in coming to a similar conclusion in Robert v. Austin, No. 21-CV-2228, 2022 WL 103374, at *3 (D. Colo. Jan. 11, 2022). Plaintiffs in that case were members of the military and sued the Secretary of Defense seeking temporary and permanent injunctive relief to prevent them from receiving the COVID-19 vaccination. Id. at *2. While the case did not involve a religious exemption, plaintiffs in Robert ultimately sought the same relief as Plaintiffs here, relying instead on their alleged COVID-19 immunity. Id. The court, citing Church, found the issue was not ripe and Plaintiffs did not have standing. Id. Plaintiffs were required to first utilize the "extensive administrative procedures" offered by the military and receive a final decision. Id. at *3. The court denied preliminary injunctive relief and dismissed the case for lack of justiciability. Id.
Similarly, the Plaintiffs here do not dispute the lengthy administrative discharge process. (See ECF No. 15 at 18.) A final discharge order must be issued before separation is final. (Id.) Even after that point, the servicemember has the opportunity to appeal the final separation to the Air Force Discharge Review board. (ECF No. 15-6 at 5-7.) Plaintiffs still have multiple opportunities to dispute the religious exemption before it is truly a final discharge from the USAF. As the court in Church decided, this Court declines to make any decision regarding military affairs until the separation decision is final and can no longer be adjudicated within the military chain of command. There has been no final decision issued by the military, so the matter is not ripe for adjudication.
"Although a preliminary injunction is, by definition, preliminary relief, a litigant must have standing and the claim must be ripe. Without these two prerequisites, it is inappropriate to exercise jurisdiction, either preliminary or final." Hadre v. Markey, No. 20-CV-3594, 2021 WL 1541714, at *7 (D. Colo. Apr. 19, 2021). Similar to the District of Colorado's decision in Robert, this Court declines to address the merits of the case due to a lack of justiciability. See Robert, 2022 WL 103374, at *3. When a preliminary injunction is not ripe for review and plaintiffs do not have standing, the Court need not address the preliminary injunction factors. Hadre, 2021 WL 1541714, at *7.
This Court is also inclined to dismiss the case for the same reasons. "A district court may dismiss a case sua sponte under Federal Rule of Civil Procedure 12(b) when it is patently obvious that the plaintiff could not prevail on the facts alleged." Andrews v. Heaton, 483 F.3d 1070, n. 2 (10th Cir. 2007) (quoting McKinney v. State of Okla., Dept. of Human Servs., Shawnee, OK, 925 F.2d 262, 265 (8th Cir. 1991)) (internal quotations omitted). If a case is not justiciable due to ripeness and standing, the Court simply does not have authority to decide the merits of the case. Hollingsworth v. Perry, 570 U.S. 693, 701, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013); United States Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 21, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). Plaintiffs had the opportunity to respond to Defendants' justiciability arguments with a reply brief (ECF No. 9) but chose not to submit one. Without justiciability, it seems "patently obvious" Plaintiffs are unable to pursue this case, and thus it appears the case should be dismissed. The Court will grant Plaintiffs the opportunity to respond and show cause explaining why they believe dismissal is inappropriate at this stage.
Conclusion
This case is not justiciable and accordingly, it is not necessary for the Court to discuss the preliminary injunction factors. Plaintiffs cannot show they are entitled to relief. It is
ORDERED that Plaintiffs' Motion for Temporary Restraining Order or Preliminary Injunction (ECF No. 4) is DENIED. It is further
ORDERED that Plaintiffs have until September 12, 2022 to show cause why this Court should not dismiss the case for lack of justiciability. Defendants may also submit any briefing on dismissal by September 12, 2022. The Court will then consider the written briefs and issue a decision after that date.