By now I should hope that most of the curious have received my paralegal’s email explaining yesterday’s decision in the Doster v. Kendall case (out of Ohio), but I’ll cover it here briefly for those who might have missed it. Judge Matthew MacFarland, a federal district court judge for the Southern District of Ohio, ruled that the plaintiffs in the case had established that (1) the Air Force and Space Force engaged in a deliberate policy to deny religious accommodations of servicemembers in violation of the Religious Freedom Restoration Act (“RFRA,” 42 U.S.C. §2000); (2) the plaintiffs had established that they should be granted a class certification for all servicemembers who filed an RAR and were found at any level to have a sincere religious objection to the vax mandate; and (3) a Temporary Restraining Order is in place for the next 14 days (through the end of 28 July), with the government having 7 days to file a brief explaining why the TRO shouldn’t get turned into an injunction.
Just the News has a decent article about it that also has a copy of the order linked right in the middle of the article, but I just saved you the hassle of clicking twice if you want to read it yourself. This is unquestionably great news for everyone in the military facing these illegal mandates, but doubly so for members of the Air and Space Force. Attorney Chris Wiest and the team at the Siri Glimstad law firm justifiably deserve all the love they’re gonna get from this.
It helps our case indirectly because first and foremost, it puts a pause on any discharge, AdSep, BOI proceedings for anyone who filed an RAR; and we’ve got a ton of folks to whom this applies. Second, it doesn’t do anything to stop our lawsuit form going forward or affect our claims because, as you all (should) know, our complaint doesn’t have any RFRA claims. We’re challenging the legality of the order and the whole program. Most of you in this suit have filed RARs while challenging the order itself and now all of our USAF and Navy members have at least some protection from discharge. From my perspective, it means being able to litigate without having to continuously monitor the need for filing emergency TROs on behalf of folks being discharged, adsep’d, or boarded.
Some have already asked what it means for Reservists who are in a No Points/No Pay status. The honest answer is that I don’t know. My guess is that the DoD will construe this as narrowly as possible to allow them to continue to make anyone who refuses to get the shots as miserable as possible. You all see it on a daily basis; the way this program has been carried out has been nothing but pure vindictiveness against the “unvaccinated” by senior leadership. And we still have that asinine Supreme Court ruling on the “partial” stay in the Navy SEALs case. The government continues to tout Justice Kavanaugh’s government boot-licking concurrence, but it’s important to remember that is NOT the lead opinion, and the posture of the case is such that it’s not clear that would be the ruling on a regular, full appeal (the case has a weird procedural posture that isn’t worth dwelling on too much here). Suffice it to say, at some point, someone’s going to have to take a crack at that garbage on a more developed evidentiary record.
Good news also abounds for our Coastie Brethren and Sistren – your complaint is done. And to be clear, not “mostly done,” but finished. The only reason it wasn’t filed yesterday is because of my lack of understanding of Texas judicial geography. Meaning, I didn’t realize that the Coast Guard Base at Port Arthur was NOT a part of the Galveston Division of the Southern District of Texas; Port Arthur actually falls under the Eastern District of Texas’ Beaumont Division. So, we’re doing some minor cleanup of captions and declarations to ensure we’ve got everything correct and that we’re filing in the right place. While I type this, I’m actually waiting for some call backs from other attorneys to get this task completed today and the complaint filed. So, for our (very patient) Coasties, I tell you that your wait is coming to an end and your patience should be rewarded.
While I’m on the subject of our believed protecters of our coastal waters – (although let’s be honest, most of you have deployments to the Middle East, the Northern Seas, and some other crazy dangerous places, so I tend to think of you as the mini-Navy with a cooler color scheme) – I wanted to take a moment to note that the Coastie complaint DOES have RFRA claims, front and center. There are only a handful of you who defied the mandate straight-up and didn’t file for an RAR, and because of that fact, it was clear we needed to litigate on behalf of your 1st Amendment rights and RFRA claims. HOWEVER, you also get the benefit of most of the Wilson claims regarding the shots NOT being vaccines, as well as the Administrative Procedures Act claims that include 10 USC §1107a, the nonsense of the Terry Adirim “interchangeability” scam, the FDA’s abandonment of its charter to prohibit the introduction of unlicensed drugs into the marketplace, etc.
All in all, given the circumstances, I’d say we’re holding our own. We’re not taking on water and we’re “nicely making wake.” I’m gonna end this so I can get back to the real work, but wanted you all to have some good news to enjoy over your weekend.
Continued thanks to all of you who have donated so generously to the tip jar to keep this lawsuit going. And a very public thank you to my trusty, estimable* paralegal Rachel who has been essential to this entire project, and her “boys” – all of you volunteers who put together the Knack site, as well as helping herd folks and pass the word.
*Not, as previously written, “erstwhile” – which means “former.” I promise, Rachel, you still have a job. Your father is just a dumb some days no spenk english gud.