One Air Force reservist at Wright Patterson gets a win

The judge granted his injunction but denied it for others similarly situated.

Air Force Reservist Second Lieutenant Poffenbarger challenged the Air Force’s administration of its COVID-19 vaccination mandate, in particular its administration of religious exemption requests. He filed for himself and all others similarly situated. The Complaint is here.

The Air Force had granted 1,513 temporary medical exemptions and 2,314 total administrative exemptions from the COVID-19 vaccine mandate but no religious exemptions at the time of filing (9 were granted post-filing). Poffenbarger alleged a “systematic effort” by the Air Force to “flagrantly violate federal law … in a concerted and deliberate effort to violate the rights of members of the Air Force” under the Religious Freedom and Restoration Act (“RFRA”) and the Free Exercise Clause of the First Amendment, as demonstrated by the Air Force’s failure “to approve a single religious accommodation request” while approving “thousands of administrative” accomodations.

On October 2, 2021, Poffenbarger was on active duty and received a direct order to be vaccinated against COVID-19. The order stated: “I am ordering you to receive an initial dose of a COVID-19 vaccine with full licensure approval from the FDA AND provide proof by 3 October 2021.” He subsequently submitted his religious exemption request as follows:

As a Christian, I am compelled to consider the commandments of my Creator and evaluate my actions based on both short-term earthly concerns and the eternal. …All COVID-19 vaccines are associated with abortion. The J&J used abortion cell lines in the design, production, and testing phases … The Pfizer and Moderna both used these cell lines in the testing phase … My faith makes it clear that the murder of innocents is a sin. … Abortion is absolutely contrary to these basic religious tenants; thus, I cannot engage in activities which are connected to this act. … I know that to accept injection of any currently available or the FDA approved Comirnaty COVID-19 vaccinations would be a sin. I would be a willing and knowing participant in the murder of innocents. It is also my belief that using these technologies to force our bodies to manufacture this pathogenic protein is not a part of God’s plan for our bodies.

On December 10, 2021, Poffenbarger was ordered by his commander to be vaccinated his next duty day, which was January 3, 2022. The order stated:

“Failure to comply with this lawful order may result in administrative and/or punitive action for Failing to Obey an Order under Article 92, Uniform Code of Military Justice.”

Under that article:

“Any person subject to [the Uniform Code of Military Justice] who (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.” 10 U.S.C.§ 892.

He was then issued a letter of reprimand:

“It has come to my attention you have failed to follow a lawful order to get the PfizerCOVID-19 vaccine. … This is a violation of Article 92, Uniform Code of Military Justice. …You are hereby reprimanded! As a member of the United States Air Force, it is your duty to obeythe lawful orders of your Commander. In the future, I expect you to obey the orders of your Commander and adhere to all laws and Air Force standards. Further misconduct may result in more severe action.”

The Court ruled that:

‘Regarding the application of strict scrutiny, according to Dahl, the question “‘is not whether the [Air Force] has a compelling interest in enforcing its vaccine policies generally, but whether it has such an interest in denying an exception’ to plaintiffs, and whether its conduct is narrowly tailored to achieve that interest.” Dahl, 15 F.4th at 735 (quoting Fulton, 141 S. Ct. at1881) (alteration adopted)…. [T]he Air Force offers no compelling reason why it has a particular interest in denying a temporary exemption to Poffenbarger while granting one for others who, for example, are allergic to the components of the vaccine.’

“First Amendment guarantees have not been abolished because of, or stayed during, the COVID-19 pandemic. Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 68 (“even in a pandemic, the Constitution cannot be put away and forgotten”).

Although the judge did not apply the ruling to others, the ruling opens the door to interventions in the case by others similarly situated.

The purge of our military seems relentless. It is not based on common sense or the facts about the efficacy of the shots. Again, Article III judges are helping preserve our Republic.

Chris Wiest and Aaron Siri are the valiant attorneys who brought this case. We congratulated Chris on the victory this morning.

If you know of military personnel having problems in Ohio, Mendenhall Law Group is working with other lawyers to save their careers.