Federal judge grants Marines class action status in challenge to COVID vaccine requirement

A federal judge has granted class action status for U.S. Marines in their fight against Secretary of Defense Lloyd Austin’s COVID-19 vaccine mandate. The ruling is another blow to the Biden administration and consistent with other court rulings that have found military branches are violating federal law.

Judge Steven Merryday of the U.S. District Court Middle District of Florida Tampa Division granted a classwide preliminary injunction for Marines serving in active and reserve duty who were denied religious accommodation requests from taking the COVID-19 vaccine.

Merryday preliminarily enjoined the Department of Defense from “enforcing against a member of the class any order, requirement, or rule to accept COVID-19 vaccination, … from separating or discharging from the Marine Corps a member of the class who declines COVID-19 vaccination, and … from retaliating against a member of the class for the member’s asserting statutory rights under RFRA [Religious Freedom Restoration Act].”

He defined the class as “all persons on active duty or in the ready reserve (1) who serve under the command of the Marine Corps, (2) who were affirmed by a chaplain as harboring a sincere religious objection, (3) who timely submitted an initial request for a religious accommodation, (4) who were denied the initial request, (5) who timely appealed the denial of the initial request, and (6) who were denied or will be denied after appeal.”

According to federal data, 3,733 Marines requested religious accommodations and only 11, 0.295%, were granted among those who were already retiring.

In response, Merryday asked, “Is it more likely than not – in nearly all 3,733 cases – that no reasonable accommodation was available?”

He said, “the record reveals the substantial likelihood of a systemic failure by the Marine Corps to discharge the obligations established by RFRA.” Granting the class wide preliminary injunction was warranted “to preserve the status quo, to permit the full development of the record without prejudice to the plaintiffs, and to permit both a trial and a detailed, fact-based resolution of the controlling issues of fact and law.”

He, like the DOD-OIG, argue those in the military must comply with RFRA.

“RFRA includes everyone from the President to a park ranger,” Merryday said; “from the Chief Justice of the United States to a probation officer, from the Speaker of the House to a member’s district office staffer, from the Chairman of the Joint Chiefs of Staff to a military recruiter — even if they don’t like it and even if they don’t agree with it. The Free Exercise Clause and RFRA are the law of the land.”

The Marine Corps granted religious accommodations “only to the rare applicant both eligible to, and electing to, retire,” Merryday said. “In the instance of all other applicants, the Marine Corps in denying each appeal relies on an almost identical letter, a template, a form rejection. In denying the appeals, the letter invariably finds – even if the chaplain affirms the sincerity of the religious objection to the COVID-19 vaccine – that the COVID-19 vaccination requirement imposes no ‘substantial burden’ on the applicant’s Free Exercise.”

The Marine Corps and other branches have argued federal courts don’t have jurisdiction over military matters and their command discretion isn’t curtailed by the RFRA. They’ve asserted, "The Supreme Court has made clear: ‘Judges are not given the task of running the Army,’” citing a 1953 case, Orloff v. Willoughby, for example.

But federal judges in multiple states have disagreed, including Merryday, arguing the 1953 case was 40 years before Congress enacted RFRA.

Merryday said district courts were “selected by Congress and enacted in RFRA to resolve a dispute under RFRA (in other words, Congress and the President, not the district court, chose the district court as the proper forum for service members to assert the RFRA claim asserted in this action.)”

“Although certainly not ‘given the task of running the Army,’ the courts in the narrow instance of RFRA are assigned to, and entrusted to, ensure that those who run the Marine Corps (and the military in general and every other component of the federal government) conform their actions to the governing law, to RFRA, to which the admirals and the generals and the commandants are unquestionably subordinate – just like the President, the Speaker of the House, the Chief Justice, and every other person in the federal government,” he said.

Merryday also addressed the fact that plaintiffs were given only two days’ notice to be discharged, ordered to move, and fined $100 daily rent if they stayed in military housing.

He said this “suggests retribution and retaliation, the existence of which detracts from the Marine Corps’s claim elsewhere in this action to good faith treatment of a religious objector.”

The mandate forced religious objectors to choose “between betraying a sincere religious conviction and suffering court martial or separation from the military and, likely, visiting adverse consequences on the Marine’s family (such as the abrupt eviction from military housing and disenrollment from military schools),” he added.