Cincinnati federal judge blocks Air Force, Air National Guard globally from discharging religious vaccine refusers

A federal judge in Cincinnati on Wednesday halted the Biden administration for the foreseeable...
A federal judge in Cincinnati on Wednesday halted the Biden administration for the foreseeable future from enforcing the COVID-19 vaccine mandate globally on any servicemembers in both the Air Force, Space Force and Air National Guard who requested religious exemptions.(Provided by Attorney Chris Wiest)
Published: Jul. 27, 2022 at 9:41 PM EDT|Updated: Jul. 28, 2022 at 8:00 AM EDT
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CINCINNATI (WXIX) - A federal judge in Cincinnati on Wednesday blocked the Biden administration for the foreseeable future from enforcing the COVID-19 vaccine mandate globally on any servicemembers in the Air Force, Space Force and Air National Guard who requested religious exemptions.

U.S. District Court Judge Matthew McFarland’s preliminary injunction stops the military from discharging or disciplining servicemembers in this local lawsuit that now has an international impact on the military and class-action status as it heads toward trial.

Judge McFarland has criticized the Air Force, writing that they sweepingly rejected each exemption request and failed to carefully consider the merits of each.

“Members face the same injury: violation of their constitutional freedom by defendants’ clear policy of discrimination religious accommodation requests,” he wrote two weeks ago when he issued the temporary injunction.

Doster v. Kendall comes down to this: Do the rights of those defending our country to exercise their religious freedom and eschew the vaccine supersede the Air Force’s insistence that allowing them to do so will irreparably harm the military’s ability to do its job?

So far, the judge has sided all the way with the servicemembers and now he has included the Air National Guard in the litigation.

The government is expected to swiftly appeal this decision, as they have previous ones in this case.

FOX19 NOW has a request for comment from a spokeswoman for the Air Force. We will update this story once we hear back.

The judge’s decision impacts 200 to 300 servicemembers stationed at Wright-Patterson Air Force Base in Dayton, who filed the lawsuit against top military leaders back in February.

It also affects 7,000 to 9,000 service members nationally, according to the attorney for the local plaintiffs, Chris Wiest of northern Kentucky.

The lead plaintiff in the case, 2nd Lt. Hunter Doster, and more than a dozen others argue the Air Force is forcing them to lose their livelihoods or violate their religious beliefs by receiving vaccines they say have ties to abortion.

“Obviously, we are thrilled for our clients who we were facing career-ending consequences for the exercise of their sincerely held beliefs,” Wiest said Wednesday night. “This case will now proceed into the discovery phase in which we look forward to placing government decision-makers under oath and questioning them about their discriminatory decision-making.”

One of the plaintiffs is Union Township Trustee Joe Dills. He was on active duty in the Air Force for three years and has been in the reserves since 2013.

“The COVID-19 vaccine has been tested and used with aborted fetal cells so that is going against our religious beliefs,” Dills said Wednesday night. “None of us is anti-vaccine at all, but we are against using aborted fetal cells.

“What’s really frustrating is this fact: The Air Force has granted thousands and thousands of administrative and medical exemptions but only a handful of religious exemptions. So all of us put together very tight packages (proposals) for our religious exemptions and the commanders have basically rubber-stamped and denied all of them. It would appear they didn’t even look at our packages at all.”

Moreover, Dills said the chaplain at Wright Patterson extensively vetted them and found their reasoning rational.

“The chaplain gave us their blessing, their stamp of approval that we have a valid concern not to take the vaccine but it doesn’t matter. The commanders have rubber-stamped and denied them all.”

Wiest said the evidence in this case has shown the only religious exemptions the Air Force has granted are for those at the end of their term of service.

U.S. District Court Judge Matthew McFarland was appointed by former President Donald Trump in...
U.S. District Court Judge Matthew McFarland was appointed by former President Donald Trump in late 2019 on the recommendation of a bipartisan commission created by Ohio senators Rob Portman, a Republican, and Sherrod Brown, a Democrat.(U.S. District Court of Southern Ohio)

Attorneys for the government wrote in the latest court filings that allowing unvaccinated members to serve without restriction “would significantly increase (the) risk to accomplishing the Air Force mission while causing substantial and lasting harm to military order and discipline.”

Diseases, the government contended, can be a serious threat to the ability of servicemembers to perform their duties, and especially dangerous for those who are mobilized in support of combat operations.

“Vaccination is the most effective way to minimize the risk of disease in Service members which allows us to maximize our operational capabilities and mission effectiveness. Service members who fail to meet medical readiness requirements are typically nondeployable. While Service members may go through brief periods where they are nondeployable, all members are expected to return to and maintain a deployable status.”

What’s more, the government contends, that the U.S. Food and Drug Administration (FDA) recently granted emergency use authorization to the Novavax vaccine, which uses traditional vaccine technology.

No human fetal-derived cell lines or tissue are used in the development, manufacture or production of the Novavax COVID-19 vaccine candidate, so this essentially resolves the reasons for religious exemptions, their latest filing states.

The government’s attorney also wrote that courts should “exercise extreme caution before granting a preliminary injunction in a large class-action case such as this one, where class-wide preliminary injunctive relief effectively amounts to a nationwide injunction...”

Resolving the case here would deprive the court “of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court grants” an order.

The judge rebutted that in his order, citing the 1803 court decision Marbury v. Madison. It established the principle of judicial review—the power of the federal courts to declare legislative and executive acts unconstitutional.

“....the Court reminds Defendants that (it) is emphatically the province and duty of the judicial department to say what the law is,” the judge wrote.

“Thus, due to the systematic nature of what the Court views as violations of Airmen’s constitutional rights to practice their religions as they please, the Court is well within its bounds to extend the existing preliminary injunction to all Class Members.”

The Air Force’s Director of Staff says in court records that as of July 12, they still have 2,847 pending Religious Accommodations Requests (RARs) at Decision Authority Level to be exempt from the COVID19 vaccination requirement for 378 Active Duty Air Force, 1 Air Force Reserves (including Individual Mobilization Augmentees), 1 Space Force, and 2,467 Air National Guard.

Additionally, the Air Force still has 575 pending RAR appeals and many of the requests are at the state, not the federal level.

“This means they have either not yet been submitted to the National Guard Bureau for review or they have been returned to the state for further action,” the government’s legal filing states.

“As of July 12, 2022, the Department of the Air Force has approved 135 religious accommodation requests to be exempt from the COVID-19 vaccination requirement: 106 Active Duty Air Force, 22 Air Force Reserves (including Individual Mobilization Augmentees), 3 Space Force, and 4 Air National Guard.”

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