Opinion
CV-22-00444-PHX-DJH
10-14-2022
Thomas Short, Major Short, v. David Berger, et al., Defendants.
ORDER
DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE
Pending before the Court is Defendants' Motion to Dismiss or, in the Alternative, Stay Proceedings (Doc. 65), filed on August 31, 2022. Plaintiff Thomas Short filed a Response (Doc. 68), and Defendants filed a Reply (Doc. 73). Also pending is Defendants' Motion to Dismiss (Doc. 42), filed on June 21, 2022, and Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 59), filed on July 27, 2022. Plaintiff filed a Response to both Motions (Doc. 64). For the following reasons, the Court grants the Defendants' Motion to Dismiss or, in the Alternative, Stay Proceedings (Doc. 65). All other motions are therefore denied as moot.
Relatedly, after the United States Marine Corps issued a Marine Administration Message on September 14, 2022, Major Short filed a “Notice Regarding Issuance of a Maradmin Concerning Implementation of Classwide Preliminary Injunction” (Doc. 71). Defendants filed a Response (Doc. 74).
I. Background
In August 2021, the Secretary of Defense issued a memorandum that imposed a mandatory COVID-19 vaccine requirement (“the COVID-19 vaccine mandate”) on all service members on active duty or in the Ready Reserves. (Doc. 14-2 at 2). Defendant David Berger, Commandant of the United States Marine Corps (“Defendant Commandant Berger”), and Defendant Carlos Del Toro, Secretary of the Navy (“Defendant Secretary Toro”), carried out enforcement of the COVID-19 vaccine mandate by implementing various regulations. Plaintiff Thomas Short (“Major Short”) is a Major in the United States Marine Corp (“USMC”) with the occupational specialty of judge advocate and is currently stationed in Yuma, Arizona (Doc. 49 ¶¶ 10, 13). After seeking an accommodation, he was denied a religious exemption from the COVID-19 vaccine mandate. (Doc. 2-2 at 110-11).Consequently, Major Short was placed on the Officer Disciplinary Notebook (“ODN”) (Doc. 49 at ¶¶ 61, 64) and issued a Report of Misconduct. (Id. at ¶ 68).
Defendant Secretary Toro issued ALNAV 062/21 in August 2021, which authorized Defendant Commandant Berger to exercise administrative and disciplinary actions to hold non-exempt Service Members accountable for failing to receive the COVID-19 vaccine. (Doc. 49 at ¶ 27). Defendant Commandant Berger issued MARADMIN 462/21 in September 2021, which implemented the COVID-19 vaccine mandate among Marines and established refusal as grounds for misconduct. (Doc. 49 at ¶ 28). Defendant Commandant Berger also issued Marine Corps Order 1730.9 “Accommodation of Religious Practices in the Marine Corps” to implement the administrative process for religious exemption requests under the COVID-19 vaccine mandate pursuant to RFRA. (Doc. 49 at ¶¶ 32-34).
Major Short was affirmed by a chaplain as harboring a sincere religious objection due to the vaccines' use of fetal stem cells and messenger ribonucleic acid (mRNA) technology. (Doc. 2-2 at 25). Major Short's initial request for a religious exemption from the COVID-19 vaccine mandate was denied on October 20, 2021. (Id. at 27). He then appealed this denial (Id. at 29-31), which was denied on March 14, 2022. (Id. at 105-08).
Major Short filed suit in this Court on March 21, 2022, and applied for a temporary restraining order and preliminary injunction the same day. (Docs. 1; 2). Major Short sought to enjoin the Defendants from enforcing the COVID-19 vaccine mandate against him and taking any adverse action against him on the basis of his COVID-19 vaccine refusal. (Doc. 2 at 2). The Court denied Major Short's request. (Doc. 30). On July 12, 2022, Major Short filed a First Amended Complaint (Doc. 49), asserting three causes of action against Defendants: (1) violation of his rights under the Religious Freedom Restoration Act (“RFRA”); (2) violation of his First Amendment rights to free exercise of religion; and (3) violation of the Administrative Procedure Act (“APA”) in failing to adhere to the substantive requirements of 10 U.S.C. § 1107a, 21 U.S.C. § 360bbb-3, and 21 U.S.C. 355. (Doc. 49 at 27-33). After Defendants filed their Motion to Dismiss Major Short's First Amended Complaint (Doc. 59), the Court stayed proceedings while it awaited the parties' briefing regarding the Defendants' Motion. (Doc. 63).
On August 25, 2022, the parties notified the Court that on August 18, 2022, the United States District Court for the Middle District of Florida had issued an order certifying a class and issuing a classwide preliminary injunction relating to Marines seeking religious exemptions from the COVID-19 vaccine mandate (“Florida Order”). See Colonel Fin. Mgmt. Officer, et al v. Austin, III, et. al, 8:22-CV-1275-SDM-TGW, 2022 WL 3643512 (M.D. Fla. Aug. 18, 2022) (“CFMO Class Action” “Class Action”). Pursuant to Federal Rule of Civil Procedure 23(b)(2), the Florida court certified the following class:
All persons on active duty or in the ready reserve (1) who serve under the command of the Marine Corps, (2) who were affirmed by a chaplain as harboring a sincere religious objection, (3) who timely submitted an initial request for a religious accommodation [from the COVID-19 vaccination requirement], (4) who were denied the initial request, (5) who timely appealed the denial of the initial request, and (6) who were denied or will be denied after appeal.Colonel, 2022 WL 3643512, at *19. The Florida court further preliminary enjoined defendants Lloyd J. Austin, III, Secretary of Defense, and Commandant Berger from the following:
(1) [] enforcing against a member of the class any order, requirement, or rule to accept COVID-19 vaccination, (2) [] separating or discharging from the Marine Corps a member of the class who declines COVID-19 vaccination, and (3) [] retaliating against a member of the class for the member's asserting statutory rights under RFRA.Id. To enforce the Florida Order, on September 14, 2022, the USMC issued Marine Administration Message 464/22 entitled “Interim Guidance Regarding Marines Requesting Religious Accommodation From COVID-19 Vaccination Requirements” (“MARADMIN 464/2”). (Doc. 71 at 5-10).
This Court ordered the parties to file a brief on the impact, if any, the recent Florida Order has on this matter. (Doc. 63). Thereafter, Defendants move to dismiss the case without prejudice or, in the alternative, stay proceedings in lieu of the Florida Order and pending CFMO Class Action. (Doc. 65).
II. Legal Standard
A court will grant a Federal Rules of Civil Procedure 12(b)(1) motion when the movant shows the court lacks subject-matter jurisdiction. F.R.C.P. 12(b)(1). Challenges to subject matter jurisdiction can be made either facially or substantively. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the challenger asserts that the allegations in a complaint are insufficient to invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). By contrast, in a factual attack, the challenger disputes the truth of the allegations in a complaint that would otherwise invoke federal jurisdiction. Id. The party invoking the court's subject matter jurisdiction bears the burden of establishing it. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). When ruling on a motion to dismiss, the court accepts all factual allegations in the complaint as true and views the pleadings in light most favorable to the nonmoving party. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
III. Discussion
Defendants move to dismiss Major Short's action without prejudice on the basis that Major Short is a class member of the CFMO Class Action and may not opt out of the matter. (Doc. 65 at 3). Though not explicitly stated, the Court construes Defendants' Motion to Dismiss as a Federal Rules of Civil Procedure 12(b)(1) motion for lack of subject matter jurisdiction because Major Short's claims are currently pending in a class action. See e.g., Pride v. Correa, 719 F.3d 1130, 1333 (9th Cir. 2013) (acknowledging the district court's inference of a 12(b)(1) motion that asserts a facial attack of subject matter jurisdiction). Alternatively, Defendants move to stay proceedings so that Major Short's claims are not simultaneously litigated in multiple districts. (Doc. 65 at 4). The Court will address each of the Defendants' arguments in turn.
Major Short does not dispute he falls within the class as defined in the CMFO Class Action. (Doc. 66 at 3).
A. Legal Standards Governing Whether a Pending Class Action Warrants Dismissal of an Individual Class Member's Suit
Defendants maintain the claims and relief requested by Major Short “mirror” those in the CFMO Class Action, thus Major Short's suit should be dismissed to ensure he “does not have two bites at the apple.” (Id. at 3 (citing Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979)). Major Short concedes the underlying claims of the CFMO class action are the same as the claims he brings in this matter. (Doc. 68 at 3). However, Major Short contends his case should not be dismissed because he seeks “broader permanent relief” that goes beyond the scope of what can be awarded in the CFMO Class Action. (Doc. 66 at 3).
“A district court has inherent power to choose among its broad arsenal of remedies when confronted with situations where . . . continued litigation of a matter would create undue hardship on the litigating parties, or would improvidently circumscribe the actions of another court handling a prior-certified action.” Crawford, 599 F.2d at 892 (quoting Tate v. Werner, 68 F.R.D. 513, 520 (E.D.Pa. 1975)). Pursuant to this power, a district court may dismiss portions of an individual class member's complaint that duplicate the class action's prayer for relief. See Id. at 893; cf. Frost v. Symington, 197 F.3d 348, 359 (9th Cir. 1999) (“To the extent that a class action involving the same issues raised by [a plaintiff] is currently pending in [a district court], [the plaintiff] may have to bring all of his related claims for equitable relief . . . through [the class action's] counsel.”) (internal citations omitted). However, it is improper for a district court to dismiss an individual's allegations “which go beyond the allegations and relief prayed for” in the class action. Crawford, 599 F.2d at 893 (claims for relief concerning a federal penitentiary's slaughterhouse, law library, and visitation privileges were discrete from the relevant class action, which only addressed the systemic reform issue of overcrowding in the penitentiary); see also Pride v. Correa, 719 F.3d 1130, 1137 (9th Cir. 2013).
Pride v. Correa set forth a two-step framework for deciding when to dismiss an individual class member's complaint pending a related class action. According to Pride, a court “must first identify the relief sought and obtained by [the class action.]” Id. at 1134. A court will next determine whether the individual's claim for relief is “duplicative” of that sought in the class action. Id. at 1137.
In Pride, the court first identified that the relief sought in the relevant class action broadly concerned systemic reform of prison medical care procedures. Id. at 1134. In assessing the second prong, or whether the relief sought by the plaintiff was duplicative of that sought by the class, the Pride court ultimately found the individual class member's claim for injunctive relief concerning his shoulder and knee injuries related to his specific medical conditions. It held this was discrete from the claims for systemic reform addressed in the class action. Id. at 1137 (“where an inmate brings an independent claim for injunctive relief solely on his own behalf for medical care that relates to him alone, there is no duplication of claims or concurrent litigation.”). Thus, the pending class action did not bar the Pride plaintiff's individual claim for injunctive relief. Id.
B. Step One of Pride : The Requested Remedy and Preliminary Injunction in the CFMO Class Action
Following Pride, the Court must first identify the relief sought in the pending CFMO Class Action. Defendants argue the initial claims for relief set forth in the Class Action plaintiffs' third amended complaint are the same as Major Short's claims for relief set forth in his First Amended Complaint. (Doc. 73 at 3). However, the Florida Order clarified there are two means of reliefs sought and obtained by the Class Action. First, the Florida district court narrowed the scope of plaintiffs' prayer for relief to “an order recommitting the Marines' applications en masse to the [USMC] for a determination in accord with the . . . requirements of RFRA.” Colonel, 2022 WL 3643512, at *19. The Court views this requested remedy as one that addresses RFRA compliance in the USMC's administration of religious exemptions, which is a systemic reform issue.
The Florida district court inquired with CMFO Class Action counsel to narrow the remedies initially sought for in the Class Action plaintiffs' Third Amended Complaint. Compare Colonel, 2022 WL 3643512, at *19 with Third Amended Verified Class Action Complaint for Preliminary and Permanent Injunctive Relief, Declaratory Relief, and Damages at 94-96, Colonel Fin. Mgmt. Officer, et al v. Austin, III, et. al, No. 8:22-CV-1275-SDM-TGW (M.D. Fla. Aug. 18, 2022), ECF No. 198. Although Defendants are correct that Major Short's remedy requests are the same as those initially requested by the Class Action plaintiffs, the Court will consider the Florida district court's narrowed remedy for purposes of this Order.
Second, the Florida district court issued a preliminary injunction to preserve the status quo “pending the [USMC's] RFRA-compliant determination of each application.” Id. The injunction effectively protects each Marine against “expulsion, forced vaccination, and retaliation for asserting RFRA rights.” Id. The USMC issued MARADMIN 464/22 to execute the preliminary injunction pursuant to the Florida Order. (Doc. 71 at 5-10).
C. Step Two in Pride : Whether Major Short's Requested Remedies are Duplicative
The next step is to determine whether Major Short's claim for relief is duplicative of that sought and obtained by the CFMO Class Action. Major Short sets forth three arguments as to why the relief he seeks goes beyond the scope of the Class Action.
i. Request that the Court Order the USMC to Grant Major Short a Religious Exemption
First, Major Short views the Class Action remedy as incapable of providing him the “permanent relief” he seeks: “a religious accommodation exempting him from receiving any of the current COVID-19 vaccines[.]” (Docs. 49 at 34; 66 at 3; 68 at 3). Major Short contends the Class Action remedy would only establish that he was unlawfully denied a religious exemption, which is just “one prong of [his] case.” (Doc. 66 at 3). But the remedy would require the USMC to reconsider all religious exemption requests en masse and ensure the USCS make “RFRA-compliant determinations.” Colonel, 2022 WL 3643512, at *19. The Florida district court further explained that if it finds the USMC's analysis in administering religious exemptions failed to conform to that required by RFRA, then the USMC “cannot impose the COVID-19 vaccination requirement against the class.” Id. at *12. Thus, if Major Short is indeed warranted a religious exemption under RFRA, the Class Action remedy would provide him with an exemption upon reconsideration of his request.
Moreover, Major Short argues the Court should treat him similar to the Pride plaintiff because he seeks an order providing him a religious accommodation “based on the individual facts in his case.” (Doc. 68 at 3). He broadly maintains his “specific circumstances” are discrete from the CFMO Class Action's legal claims pertaining to the USMC's wrongful denial of religious exemptions. (Id.) It is true that both class actions discussed in this case and Pride concern systemic reform issues. However, the CFMO class action is unique because it addresses a specific, common objection made by all class members with various backgrounds. Colonel, 2022 WL 3643512, at *14. Specifically, the Florida court stated:
Although Marines of different faiths, different education, and different acumen might understand or explain this objection differently and with more or less clarity, many Marines, including Christians and Muslims, object that the COVID-19 vaccine was developed from cell lines derived from electively aborted fetuses and that introducing an mRNA-active substance into their body either desecrates their body, a temple of the Holy Spirt, or is haram, forbidden.Id. Major Short objected to the COVID-19 vaccine on identical grounds. (Docs. 49 at ¶¶ 45-46; 2-2 at 19-20). For example, the letter Major Short received denying his appeal of his religious exemption presents as the same “almost-identical like letter, [] template, [] form rejection” received by all other applicants. Compare Colonel, 2022 WL 3643512, at *4 with Doc. 2-2 at 105-08. Pride is distinct because the relief sought by the plaintiff concerned individualized medical care that related to him alone. Here, Major Short has not identified any particularized facts, unique to him, supporting his request for a religious exemption.
Furthermore, Major Short misconstrues language from the Florida Order to assert that this Court may, as an appropriate remedy under RFRA, determine he is “entitled to a wrongly-denied religious accommodation and provide such relief to him.” (Doc. 66 at 3 (citing Colonel, 2022 WL 3643512, at *19)). Yet the Florida court explicitly stated in its Order that it “will not in any event grant[] an order awarding any or every Marine individually, a religious accommodation under RFRA” because that determination is “a matter peculiarly within the province and expertise” of the USMC. Colonel, 2022 WL 3643512, at *19. It further clarified the judiciary's expertise in this context is specific to matters related to the USMC's “compliance with the requirements of RFRA.” Id. The Court agrees with the Florida district court that to order the USMC to provide Major Short a religious exemption is beyond the purview of its authority. Id.
Although Major Short may not be satisfied with the means he might obtain a religious exemption, the Court can only require the UMSC administer religious exemptions consistent with RFRA. Id. Thus, the remedy Major Short seeks regarding his religious exemption is covered by the CFMO Class Action.
ii. Request to Enjoin Defendants from Placing Major Short on the Officer Discipline Notebook
Second, Major Short argues his requested relief goes beyond the Class Action because he seeks to enjoin Defendants from treating his COVID-19 vaccine refusal as criminal conduct, specifically by placing him on the ODN. (Doc. 66 at 3). Major Short points out he has already been placed on the ODN for refusing the COVID-19 vaccine mandate, and this should also be considered evidence of specific circumstances that extend his relief beyond that sought in the Class Action. (Doc. 68 at 3). Major Short further argues Subsection 4.c. of MARADMIN 464/2 “implies such officers will remain on the ODN” in accordance with the Florida Order. (Doc. 71 at 2, 8). He maintains this would preclude him from consideration for promotion, training, school, and other special assignments. (Doc. 66 at 3).
Viewing the pleadings in light most favorable to the nonmoving party, the Court agrees with Major Short's interpretation of Subsection 4.c. of MARADMIN 464/2. See Knievel, 393 F.3d at 1072. However, Major Short's placement on the ODN, in the first instance, flows from his refusal of the COVID-19 vaccine mandate. Thus, the status of his placement, as well as other similarly situated class members, is not certain to be permanent. Rather, it is contingent on the outcome of the pending CFMO Class Action. Colonel, 2022 WL 3643512, at *12 (explaining that if the court finds the USMC failed to conform to the analysis required by RFRA, the USMC “cannot impose the COVID-19 vaccine requirement against the class”).
As to the consequences Major Short insists will occur while he remains on the ODN, both the Florida Order and MARADMIN 464/2 make clear such consequences would be deferred pending the Class Action. Major Short maintains his contingent placement on the ODN renders him ineligible for promotion under Subsection 4.d.3. (Doc. 71 at 2). Major Short is correct that Commanders are to initiate a “12-month promotion restriction” for class members whose religious accommodation appeal has been denied, such as himself. (Id. at 2, 9). But this restriction is not certain to be permanent. The Court views the purpose of this restriction not to be punitive, but as a proper delay to maintain the status quo pending the outcome of the Class Action.
Major Short next argues that MARADMIN 464/2 “implies that no officer class member will be allowed to voluntary separate even if otherwise eligible in [Subsection] 4.f.” (Doc. 71 at 2). This is a misstatement of MARADMIN 464/2, which explicitly allows “Enlisted Marines who reach their End of Active Service while litigation is pending [] to voluntarily separate if otherwise eligible.” (Doc. 71 at 9). A Marine is otherwise eligible if they are “not pending court-martial for misconduct unrelated to the COVID-19 vaccine mandate.” Id. (emphasis added). In other words, Major Short is eligible for voluntarily separation notwithstanding his COVID-19 vaccine status so long as he has not been recorded for other misconduct unrelated to his vaccine refusal.
In sum, the Court views the purposes of the Florida Order and MARADMIN 464/2 are to preserve the status quo and to freeze all action concerning ODN entries that relate to the pending CFMO Class Action. Colonel, 2022 WL 3643512, at *19 (“[A]ny injunction must preserve . . . the status quo (that is, an injunction must protect each Marine against at least expulsion, forced vaccination, and retaliation for asserting RFRA rights) pending the [USMC's] RFRA-complaint determination of each application.”). As of now, Major Short's current placement on the ODN and consequences flowing thereof are not certain to be permanent. All actions are contingent on the outcome of the Class Action. Therefore, the relief Major Short seeks is within the CFMO Class Action.
iii. Request for other Just and Proper Relief
The final difference Major Short asserts is that he seeks other “just and proper relief that would make him whole after the wrongful denial of his religious accommodation request and the subsequent disciplinary consequences.” (Doc. 68 at 4). As established above, the Class Action remedy would provide Major Short with reconsideration of his exemption request in compliance with RFRA. See supra subsection i. Major Short would therefore be granted an exemption if it is warranted under RFRA. Additionally, the status of all subsequent disciplinary consequences flowing from Major Short's refusal of the vaccine mandate are currently frozen pursuant to the Florida Order. See supra subsection ii. Abatement of these consequences is dependent the outcome of the Class Action, as explained by MARADMIN 464/2. Thus, the Court finds Major Short will achieve any other “just and proper relief that would make him whole” in the CFMO Class Action.
Like Major Short, one of the remedies in the Class Action plaintiffs' initial request was that “the [c]ourt grant such other and further relief as the [c]ourt deems equitable and just under the circumstances.” Third Amended Verified Class Action Complaint at 96, Colonel Fin. Mgmt. Officer, et al v. Austin, III, et. al, (2022) No. 8:22-CV-1275-SDM-TGW. The Court narrowed the scope of plaintiffs' request thereafter. See supra note 5.
D. Whether a Pending a Class Action Warrants a Stay of an Individual Class Member's Suit
In alternative to dismissal, Defendants ask the Court to stay this matter while Major Short remains a member of the Rule 23(b)(2) CFMO class. (Doc. 65 at 4). Major Short does not oppose a stay so long as Defendants chose to seek expedited appellate review of the preliminary injunction issued in the CFMO Class Action. (Doc. 66 at 4). Because Defendants have not done so to date, Major Short seems to have changed his position. He argues the Court should not stay these proceedings because it would allow Defendants to continue “punishing” him by keeping him on the ODN pending the resolution of the CFMO Class Action. (Doc. 68 at 5). However, this Court has already found both the Florida Order and MARADMIN 464/2 would halt all punitive consequences flowing from Major Short's placement on the ODN. See supra subsection ii.
The Court notes that, according to the United States District Court for the Middle District of Florida's docket, defendants in the CFMO Class action filed a Notice of Interlocutory Appeal regarding the Florida Order on October 14, 2022. Notice of Interlocutory Appeal, Colonel Fin. Mgmt. Officer, et al v. Austin, III, et. al, No. 8:22-CV-1275-SDM-TGW (M.D. Fla. Aug. 18, 2022), ECF No. 245. The appeal makes no reference to expedited appellate review.
Moreover, in Crawford, the Ninth Circuit adopted a Pennsylvania district court's rationale that a court has the inherent power to put an end to continued litigation that “might circumscribe the flexibility of any relief determination” in a related class action. Crawford, 599 F.2d at 892-93 (citing Tate, 68 F.R.D. 520) (dismissing a matter involving the same issues raised in a related class action)). The district court further explained that while it could have stayed proceedings in the individual matter pending the final determination of the related class action, it was “unnecessary to retain” a matter arising out of a class action in the same forum that involved members of the class who had not opted out of the class. Tate, 68 F.R.D. 520. The Court agrees and views it is unnecessary to stay Major Short's suit because he is a member of the CFMO Class Action and his requested relief is covered by the Class Action.
IV. Conclusion
Major Short seeks a religious exemption from the vaccine mandate, that the USMC cease to treat his COVID-19 vaccine refusal as criminal conduct, and any other just and proper relief. Each of Major Short's contested remedies fall within the scope of the remedies sought and obtained by the CFMO Class Action. Major Short's requested remedies are duplicative, not discrete from the claims for systemic reform addressed in the Class Action. Pride 719 F.3d at 1137; see also Crawford, 599 F.2d at 893. Pursuant to its inherent power to avoid circumscribing the actions of another court handling a prior-certified action, the Court will therefore dismiss Major Short's case without prejudice. Crawford, 599 F.2d at 893.
Accordingly, IT IS HEREBY ORDERED Defendants' Motion to Dismiss or, in the Alternative, Stay Proceedings (Doc. 65) is granted. This matter is dismissed, without prejudice.
IT IS FURTHER ORDERED that Defendants' Motion to Dismiss (Doc. 42) and Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 59) are denied as moot.