CONCLUSION
The plaintiffs move for a preliminary injunction that preserves the status quo until a final determination on the merits of their claims under 21 U.S.C. § 360bbb-3, the First Amendment, and RFRA. For several reasons explained in this order, some of the plaintiffs, including the alleged “federal civilian employees,” the “federal con-tractors,” and the “employees of federal contractors” are unlikely, based on the cur-rent record, to prevail on the merits because they are unrepresented among the iden-tified plaintiffs, have sued the wrong defendants, have a remedy in another court, or the like.
The motion on behalf of the service-member plaintiffs is not so easily resolved. A principal, but temporary, difficulty in assessing at this moment the likelihood of success on the RFRA claim arises primarily from two sources. First, the plaintiffs claim the regulations — governing in each respective branch the availability of a reli-gious exemption from the COVID vaccine and purporting to comply with the de-mands of RFRA — in reality disguise an unlawful and pervasive policy of the Secre-tary of Defense and each branch of the armed forces to deny individual consideration of each claim for a religious exemption, to instead “deny them all,” and to punish, possibly by discharge, without exemption and without accommodation, those who assert a sincere religious objection and accordingly refuse the vaccine.
The data provided by the military are distinctly suggestive and certainly not in-consistent with the plaintiffs’ assertions. But the data are incomplete and offer no firm basis to project reliably either (1) the actual purpose and the actual application of the regulations or (2) the number of service members who, after completion of the necessary steps, are denied an exemption and an accommodation and are subject to discipline, notwithstanding a sincere religious objection to receiving the vaccine.
Interestingly, the greater the number of exemptions and accommodations granted, the more adverse presumably the effect of the exemptions on the readiness and fitness of the force. But simultaneously the claim that the regulations are a ruse becomes proportionately less convincing as the exemptions increase. Conversely, the fewer the number of exemptions and accommodations granted, the less presumably the effect on the force and the more convincing the argument that the regulations are, shall we say, insincere and, in proportion, the less convincing is the argument that the military has a compelling reason not to grant the exemptions and accommodations.
But another and perhaps more precisely determinative factor appears and tends toward resolution as the data becomes more complete. To accomplish the con-sideration required by RFRA, the military certainly must consider, perhaps above all else, not whether COVID adversely affects the force (or course it does) but whether the readiness and fitness of the force is more adversely affected (1) by granting ex-emptions and accommodations to a stated number of sincere objectors or (2) by pun-ishing, separating, and discharging that same stated number of skilled and experi-enced personnel, notwithstanding the time, energy, and money expended to train those service members and necessarily spent again to locate, recruit, and train a successor, including the cost of the successors’ acquiring similar experience and the deficit in fitness and readiness experienced in the interim. Whether characterized as a facial challenge or as a class of precisely similar as-applied challenges, requiring only a single judicial determination, the plaintiffs’ contention is — based on current data — quite plausible that each branch’s procedure for requesting a religious exemption is a ruse that will result inevitably in the undifferentiated (and therefore unlawful under RFRA) denial of each service member’s re-quest. Particularly, the data produced by the defendants show that more than 16,643 requests for a religious exemption pend. The military has granted no exemptions but has denied hundreds. This disparity, although susceptible to a benign explanation is, as well, susceptible to an explanation actionable and remediable under RFRA. The importance of a person’s right to religious liberty, protected in the Free Exercise Clause of the First Amendment to the Constitution and the explicit implementing commands of RFRA, commends deferring the resolution of the service members’ motion for preliminary injunction pending the accumulation and reporting of additional data and the resumption — with the benefit of more complete and telling data — of the hearing on the motion for preliminary injunction.
Counsel for the defendants acknowledged at the hearing that each service branch retains a centralized and readily accessible record of the status of each exemp-tion request in each branch of the military. The defendants must file every FOURTEEN DAYS, beginning on January 7, 2022, a notice providing SEPARATELY FOR EACH BRANCH OF THE ARMED FORCES:
(1) the aggregate number of religious-exemption requests from COVID-19 vaccination, the aggregate number of initial denials, the number of those denials in which the chaplain determined that the asserted belief is sincere, the aggregate num-ber of appeals pending, the aggregate number of denials for which the time to appeal has expired without appeal, the number of appeals denied, the number of successful appeals (that is, the number of appeals that resolve or remand for resolution the ap-plication for an exemption), and the total number of religious exemptions finally granted and finally denied;
(2) the number of medical-exemption requests from COVID-19 vaccination and the number of medical exemptions granted and denied;
(3) the number of other exemptions from COVID-19 vaccination granted for any other reason; and
(4) the number of courts-martial and the number of separation proceedings pending or concluded against a service member whose request for a religious exemp-tion was denied after appeal.
The motion (Doc. 2) for a temporary restraining order is DENIED, the motion for a preliminary injunction (1) is DENIED both on Count I for all plaintiffs and on Counts II and III for the civilian plaintiffs and (2) is DEFERRED on Counts II and III for the service-member plaintiffs. No sooner than January 7, 2022, a party by supplemental memorandum or other paper may explain the factual basis warranting either issuance of a preliminary injunction or a denial of the motion. A separate order will schedule a resumption of the hearing, if necessary.
ORDERED in Tampa, Florida, on November 22, 2021.
This is troubling.
So basically the court just told the best of the best to go pound sand.
Sounds like the service members' case for religious exemption is kicked down the road for another 7 weeks while more information is obtained. In the meantime, it was noted that no accommodations for religious exemption had been granted thus far, so the court will be watching that.
A lot of the other language in that summary is very troubling, though.