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Air Force urges panel to lift block on Covid vaccine mandate

The federal government called on the Sixth Circuit to allow enforcement of the military’s Covid-19 vaccine mandate against Air Force members who were shielded from discipline by the lower court.

CINCINNATI (CN) — Air Force members who won a preliminary injunction to prevent being disciplined for their refusal to get the Covid-19 vaccine were not entitled to relief and threaten to impair the military mission, the federal government argued Wednesday before an appeals court panel.

Eighteen active-duty and reservist members who sued the Air Force for its refusal to grant religious exemptions to the Covid-19 vaccine mandate did not exhaust their intramilitary remedies, have yet to receive a denial of their exemption requests, or have not been disciplined, according to the government.

These individual members, as well as a class of servicemembers, were granted preliminary relief in March by U.S. District Judge Matthew McFarland in Cincinnati, after the Trump appointee determined the mandate prevented the free exercise of religion.

McFarland emphasized the paltry number of religious exemptions granted by the Air Force – 21 out of over 4,400 requests – and the threat of punitive actions, including imprisonment, in his order granting the injunction motion.

He chastised the government for its failure to formulate compelling reasons to deny religious exemptions, particularly when "over 2,500 exempt Airmen are carrying out their respective duties unvaccinated ... solely [because of] the type of exemption they requested."

In its brief to the Sixth Circuit, the federal government pushed back against McFarland's ruling and cited an increase in religious exemptions granted since the suit was filed. Specifically, at least 135 exemptions had been granted as of July 2022, including 31 whose applications had previously been denied, the brief states.

According to the Air Force, maintaining a healthy fighting force and stopping the spread of the coronavirus is a compelling interest that allows for the mandate, especially because "these plaintiffs ... must be deployable at all times on short notice and ... could jeopardize the effectiveness of their units if they were to become infected with Covid-19."

It also maintained that until the class members were actually punished for their refusal to be vaccinated, they can't bring their claims against the government in court.

In their brief to the Cincinnati-based appeals court, the servicemembers called the government's stance "highly offensive" and emphasized the favorable treatment given to other individuals who sought exemptions because of medical conditions.

The government is "entirely ignoring the thousands of DAF [Department of the Air Force] members who are permitted to avoid ... vaccination for administrative or medical reasons which, for example, in the case of pregnancy, is an absolute entitlement despite the admitted recommendation of the CDC that the pregnant get vaccinated," the brief states.

The class further disputed the government's argument regarding administrative exhaustion and pointed out that 14 of the 18 named plaintiffs fully exhausted the intramilitary appeals process.

Attorney Casen Ross from the Department of Justice argued Wednesday on behalf of the Air Force and told the Sixth Circuit panel the individual members do not have justiciable claims under the Religious Freedom Restoration Act, or RFRA.

Ross was peppered with questions from the panel, including U.S. Circuit Judge Raymond Kethledge, who expressed doubts about whether the RFRA imposed an exhaustion requirement.

"Congress told us to adjudicate this," the George W. Bush appointee said.

The government's attorney admitted the claims could ripen in the future but emphasized the Covid-19 vaccine is "the best way to make sure these members are deployable."

"There is simply no alternative that will accomplish the same goal," Ross said.

U.S. Circuit Judge Eric Murphy, a Trump appointee, pressed the attorney about the implementation of the RFRA.

"[RFRA] is designed to influence conduct, not give a cause of action on the backend," the judge said. "Is it the government's position that you don't have to worry about RFRA until somebody sues?"

"More or less, yes," Ross answered.

Attorney Chris Wiest argued on behalf of the servicemembers and called the government's stance on RFRA enforcement "incredible."

"Under the government's theory," he said, "someone could go out and murder someone and never be in trouble until they are hauled into court."

Wiest emphasized that to overturn the injunction granted by the lower court, "the findings of fact must be clearly erroneous."

"There is a lot of law in this case," Kethledge replied. "This isn't just some fact-finding exercise."

Wiest agreed with the clarification but immediately pushed back against his opposing counsel's view on justiciability and standing.

"All of these plaintiffs' claims are ripe," the attorney said. "Every single one of these plaintiffs is going to have their exemption request denied ... [and] there have been all kinds of statements of threats ... that the harm is going to come to pass."

Wiest expounded on the merits of his clients' claims and decried the lack of "equal processing" between religious exemption requests and those for medical reasons.

"The result of that process is a 99% denial rate," he said. "It is discriminatory."

Ross disputed his opposing counsel's claim and told the panel "there is no blanket policy to grant medical exemptions as a matter of course."

The attorney defended the government's vaccine policy and cited the Russian invasion of Ukraine as the type of unexpected world event that requires Air Force members to be ready for deployment at a moment's notice.

Kethledge remained skeptical and expressed doubts about the government's refusal to accept natural immunity as a substitute for vaccination.

"I'm not an anti-vax person," he said, "I've had four shots ... and I still had a nice case [of Covid] in August."

"There is no FDA-recognized way to determine the level of antibodies in your system," Ross said, "and it wanes over time. Vaccination is singularly effective at reducing serious symptoms and hospitalizations."

Kethledge asked about booster shots, and when the government's attorney told him they are not required, the judge was puzzled.

"I'm just scratching my head a little bit at the logic," he said.

U.S. Circuit Judge John Bush, a Trump appointee, rounded out the panel.

No timetable has been set for the court's decision.

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