Hunter Doster v. Hon. Frank Kendall, in his official capacity as Secretary of the Air Force

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0213p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HUNTER DOSTER, et al.,
Plaintiffs-Appellees,
v.
HON. FRANK KENDALL, in his official capacity as
Secretary of the Air Force, et al.,
Defendants-Appellants.
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No. 22-3702
On Motion for Emergency Stay
United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:22-cv-00084—Matthew W. McFarland, District Judge.
Decided and Filed: September 9, 2022
Before: KETHLEDGE, BUSH, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON MOTION FOR EMERGENCY STAY AND REPLY: Anna O. Mohan, Casen B. Ross,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.
ON RESPONSE: Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC,
Crestview Hills, Kentucky, Wendy Cox, SIRI AND GLIMSTAD LLP, New York, New York,
Thomas B. Bruns, BRUNS CONNELL VOLLMAR & ARMSTRONG, Cincinnati, Ohio, for
Appellees.
_________________
ORDER
_________________
KETHLEDGE, Circuit Judge. In this case the plaintiffs allege that the Department of the
Air Force de facto rejects every request it receives for a religious exemption to its COVID-19
vaccine mandate—while granting requests for medical and administrative exemptions relatively
>

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freely. The district court preliminarily enjoined the Department from taking, during the
pendency of this suit, certain punitive measures against a class of service members with sincere
faith-based objections to receiving the vaccine. The Department has appealed that order and
now moves for an emergency stay of the class-wide injunction, challenging for the most part the
district court’s reasoning in certifying the class. We deny the Department’s motion but expedite
our consideration of its appeal.
I.
In August 2021, Secretary of Defense Lloyd Austin directed that all members of the
armed forces be vaccinated against COVID-19. The Secretary of the Air Force accordingly
mandated that all of the Department’s active-duty service members and reservists (including
members of the Air Guard) be vaccinated. Under the Department’s guidelines, affected service
members can seek exemptions from the mandate on medical, administrative, and religious
grounds. The Department has since granted thousands of medical and administrative exemptions
to the mandate. As of May 23, 2022, however, the Department had denied 8,869 requests for
religious exemptions, while granting a total of 85. See DAF COVID-19 Statistics – May 2022,
U.S. Air Force (May 24, 2022), https://perma.cc/CD2H-5J2G. The plaintiffs contend—and the
Department does not dispute—that all those exemptions were granted to service members who
were separately eligible for an administrative exemption (on the ground, it appears, that they
were near the end of their service term). Thus the record suggests that, at present, the number of
exemptions that the Department has granted on religious grounds stands at zero.
Eighteen active-duty or active-reservist members of the Air Force brought this suit in
February 2022, claiming that the Department’s “systematic” denial of requests for religious
exemptions violated the Religious Freedom and Restoration Act (“RFRA”) and the First
Amendment. In addition to seeking individual relief, the plaintiffs sought certification of a class
of some 10,000 affected service members. Pursuant to the Department’s procedure for seeking
religious exemptions, Air Force chaplains had already interviewed each plaintiff and had
confirmed, in writing, that the Department’s vaccination mandate substantially burdened their
sincerely held religious beliefs. (Typically the plaintiffs’ objections concerned the use of aborted
fetal cells in the development of the Air Force’s COVID-19 vaccines.) The commanding

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officers for plaintiffs Airman First Class McKenna Colantanio and Major Daniel Reineke
recommended that their requests for exemptions be granted, on the ground that less-restrictive
means (like masking or social distancing) could satisfy the Air Force’s operational interests in
their particular cases; but the Department denied those requests and those of every other plaintiff
whose request had been processed as of the complaint’s filing.
The plaintiffs thereafter moved for a preliminary injunction, which the court granted in
part after an evidentiary hearing. The court’s injunction barred the Department from “taking any
disciplinary or separation measures” against the named plaintiffs during the pendency of their
lawsuit. The Department filed a notice of appeal as to that injunction. See 28 U.S.C.
§ 1292(a)(1). The plaintiffs also filed a motion to certify a class of service members who had
sought, but not received, a religious exemption to the Department’s vaccination mandate. The
district court granted that motion and certified a class that—after some revisions in later orders—
comes to us defined as follows:
All active-duty, active reserve, reserve, national guard, inductees, and appointees
of the United States Air Force and Space Force, including but not limited to Air
Force Academy Cadets, Air Force Reserve Officer Training Corps (AFROTC)
Cadets, Members of the Air Force Reserve Command, and any Airman who has
sworn or affirmed the United States Uniformed Services Oath of Office or
Enlistment and is currently under command and could be deployed, as of July 27,
2022, who: (i) submitted a religious accommodation request to the Air Force from
the Air Force’s COVID-19 vaccination requirement, where the request was
submitted or was pending, from September 1, 2021 to July 27, 2022; (ii) were
confirmed as having had a sincerely held religious belief substantially burdened
by the Air Force's COVID-19 vaccination requirement by or through Air Force
Chaplains; and (iii) either had their requested accommodation denied or have not
had action on that request.
Excluded from this definition shall be any person within the above class who:
(i) opts out, by delivering notice to the Government and Class Counsel in writing
of their election to opt out, to the electronic mail addresses of Counsel, which will
be filed with Court.
In a separate order, the court entered a preliminary injunction likewise barring the
Department from taking “disciplinary or separation measures” against the members of the class.
The Department then filed a notice of appeal as to the certification order and the class-wide
preliminary injunction. The Department also moved in the district court for an emergency stay

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of its class-wide injunction during the pendency of that appeal. The district court denied that
motion. The Department then moved for the same emergency stay in our court, which is the
motion before us now.
II.
The decision whether to grant a stay depends upon “an exercise of judicial discretion.”
Nken v. Holder, 556 U.S. 418, 433 (2009) (internal quotation marks omitted). Four factors guide
the exercise of that discretion: “(1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Id. at 434 (internal quotation marks omitted).
The party requesting a stay—here, the Department—bears the burden of showing that these
factors justify the issuance of a stay. Id. at 433-34. The first two factors of this standard “are the
most critical.” Id. at 434.
Here, as to the first factor, the Department challenges only the merits of the district
court’s decision to certify the class—the Department’s position being that, even if the named
plaintiffs are likely to prevail on their individual claims, the court’s certification of the class was
an abuse of discretion, and thus so too was the court’s issuance of a class-wide preliminary
injunction.
The decision whether to certify a class is governed by Federal Rule of Civil Procedure
23, under which certification requires two showings: first, that the four “prerequisites” of Rule
23(a) are met; and second, that the case fits within at least one of the three “types of actions”
described in Rule 23(b). We begin with Rule 23(a), under which the Department argues that the
plaintiffs cannot satisfy two prerequisites, namely commonality and typicality. Commonality
means that “there are questions of law or fact common to the class”; typicality means that “the
claims or defenses of the representative parties are typical of the claims or defenses of the
class[.]” Fed. R. Civ. P. 23(a)(2), (3). In cases involving claims of class-wide discrimination,
these two requirements “tend to merge.” General Telephone Co. of Southwest v. Falcon,
457 U.S. 147, 157 n.13 (1982).

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The commonality requirement covers most of the relevant Rule 23(a) ground here.
“Commonality requires the plaintiff to demonstrate that the class members have suffered the
same injury.” Wal-Mart Stores v. Dukes, 564 U.S. 338, 349-50 (2011) (cleaned up). That
requires more than a showing that “they have all suffered a violation of the same provision of
law.” Id. at 350. Instead, it requires that the class members’ claims “depend upon a common
contention” whose resolution “will resolve an issue that is central to the validity of each one of
the claims in one stroke.” Id. Thus a common question, for purposes of Rule 23(a), is one that is
likely to “generate common answers” class-wide. Id. (internal quotation marks omitted).
That kind of common question can arise from a contention that the defendant “operated
under a general policy of discrimination.” Id. at 353 (internal quotation marks omitted). And
that is precisely the contention the plaintiffs make here. From the very first paragraph of their
Complaint, to their briefing in opposition to the Department’s motion now, the plaintiffs have
alleged the existence of a “systematic effort” by the Department to deny service members’
requests for religious exemptions categorically, while granting thousands of medical and
administrative exemptions. The district court recognized as much when it thrice referenced what
it called “Defendants’ clear policy of discrimination against religious accommodation requests”
in finding the commonality requirement met. July 14 Order at 8. And we think the district court
was likely correct when it held that, on this record, that contention supports litigation of both a
RFRA claim and a First Amendment free-exercise claim class-wide.
RFRA provides that the federal government “may substantially burden a person’s
exercise of religion” only when doing so “is in furtherance of a compelling governmental
interest” and “is the least restrictive means of furthering that compelling governmental interest.”
42 U.S.C. § 2000bb-1(b). That restriction, as the Department itself emphasizes throughout its
briefing, allows the Department to impose that burden on a service member’s exercise of her
faith only as a last resort, after examining all the circumstances relevant to her individual case.
A de facto policy to impose that burden upon class members in gross, regardless of their
individual circumstances, would seem rather plainly to violate that restriction. Yet that would be
the effect of the Department’s alleged policy to deny all requests for religious exemptions.
Meanwhile, “[t]he Free Exercise Clause protects religious observers against unequal

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treatment[.]” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542
(1993) (internal quotation marks omitted). A discriminatory policy to deny all requests for
religious exemptions, while granting thousands of medical and administrative ones, would seem
to violate that guarantee as well. The plaintiffs’ contention that the Department operates under
such a policy could therefore “resolve an issue that is central to the validity of” the class
members’ RFRA and First Amendment claims “in one stroke.” Dukes, 564 U.S. at 350. And the
same contention would establish typicality, since the same discriminatory policy would account
for the failure to grant the named plaintiffs’ and class members’ requests alike.
The Department, for its part, argues that RFRA claims categorically cannot be certified
for class treatment. Here, for example, it says that the plaintiffs’ RFRA claim requires the court
to determine separately for each service member whether the vaccination mandate is the least
restrictive means of furthering a compelling governmental interest. We agree that most RFRA
claims require that kind of individualized analysis; and we have no quarrel with the
Department’s contention that such an analysis could not be conducted class-wide here. But the
Department’s argument misconceives the nature of the RFRA claim that the district court
certified. The court’s order emphasized on almost every page that the RFRA claim it certified
was one based on a class-wide “clear policy of discrimination against religious accommodation
requests.” July 14 Order at 8. That claim, as explained above, does not turn on an analysis of
the class members’ individual circumstances and likely can be adjudicated class-wide.
The Department next responds that the plaintiffs’ RFRA claim cannot be litigated class-
wide because, the Department says, it does not have any general policy to deny all requests for
religious exemptions, and instead uses “an individualized process that accounts for facts
particular to each service member.” Gov’t Br. at 14. That response confuses the certification
stage with the merits stage. The question for purposes of certification is not whether the
Department in fact had a general policy of discrimination against requests for religious
exemptions, but instead whether the plaintiffs have “significant proof” that the Department had
such a policy. Dukes, 564 U.S. at 353 (cleaned up). And the Department’s stay motion does not
cite Duke’s test for establishing a general policy at this stage, or provide the Department’s view

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of the amount of evidence this test demands, or explain why the plaintiffs’ evidence of a de facto
policy fails to meet it. These issues thus provide no basis on which we may grant a stay.
Moreover, our own review of the record does nothing to convince us that the Department
is likely to prevail on this evidentiary point. As an initial matter, though the plaintiffs claim that
the Department refuses to grant any exemptions to its vaccination mandate on religious grounds,
proof that it is biased against granting such exemptions is enough to support certification. See
Gratz v. Bollinger, 539 U.S. 244, 267-68 (2003) (affirming class certification when race was one
of many factors in the University of Michigan’s admissions policy); Dukes, 564 U.S. at 353
(proof of a biased “evaluation method” can support certification); cf. Masterpiece Cakeshop, Ltd.
v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (“The Free Exercise Clause bars
even subtle departures from neutrality on matters of religion” (internal quotation marks
omitted)). To establish a general policy, therefore, the plaintiffs need not show that the
Department rejects 100% of requests for religious exemptions. And the Department’s own
statistics show that, as of May 23, 2022, it had rejected more than 99% of them. See DAF
COVID-19 Statistics – May 2022, U.S. Air Force (May 24, 2022), https://perma.cc/CD2H-5J2G.
That the Department has granted only a comparative handful of religious exemptions, while
granting thousands of medical and administrative ones, is itself at this stage of the case
significant proof of discrimination. See Washington v. Davis, 426 U.S. 229, 242 (1976)
(“discriminatory impact” can be proof of discriminatory intent); id. at 253 (Stevens, J.,
concurring) (“Frequently the most probative evidence of intent will be objective evidence of
what actually happened rather than evidence describing the subjective state of mind of the
actor”). Meanwhile, the plaintiffs have contended throughout this litigation that even the handful
of exemptions that the Department has approved were granted only to service members who
were nearing the end of their service term and thus eligible for an administrative exemption
anyway. The Department notably has not disputed that contention for purposes of this motion;
and a lawyer for the Department appeared to concede the point when questioned by the court in a
related case. See Transcript of Preliminary Injunction Hearing at 59:17-25, R. 30-2,
Poffenbarger v. Kendall, No. 3:22-cv-0001-TMR (S.D. Ohio Feb. 22, 2022) (stating that, as to
the nominally religious exemptions granted by the Department, “some service members chose
instead to submit their terminal leave request, the admin exemptions for terminal leave, they

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submitted it as a religious exemption even though they were eligible for a terminal leave
[exemption]”). The Department is thus not likely to prevail on this point either.
The Department’s two remaining arguments as to Rule 23(a) are lightly developed and
insubstantial. First, the Department says that some of the named plaintiffs’ RFRA claims are not
“exhausted” because their appeals of the Department’s denials of their requests for exemptions
remain pending within the Department. But whether RFRA claims are even subject to an
exhaustion requirement is an open question. See, e.g., Oklevueha Native Am. Church of Haw.,
Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012). Nor does the Department offer any authority
for the proposition that such a requirement would lack a futility exception. Hence this argument
is not likely one on which the Department will overturn the certification order. Second, the
Department asserts that “none of the named plaintiffs is a cadet or member of the national guard,
and thus they lack standing to challenge requirements applied to those groups.” Gov’t Br. at 15.
Suffice it to say that the Supreme Court’s decision in Gratz likely refutes that assertion. See 539
U.S at 263-67; cf. Falcon, 457 U.S. at 159 n.15.
Finally, as to certification proper, the Department argues that the district court was wrong
to conclude that the RFRA claim can be certified under Rule 23(b). As an initial matter, we
agree with the Department that the district court did not provide an adequate explanation for its
decision to certify a class under Rule 23(b)(1)(A). But the parties focus on Rule 23(b)(2) in
particular, and so do we. That provision allows for certification when “the party opposing the
class has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
whole[.]” Fed. R. Civ. P. 23(b)(2).
“Civil rights cases against parties charged with unlawful, class-based discrimination are
prime examples of what (b)(2) is meant to capture.” Dukes, 564 U.S. at 361 (cleaned up). And
that is precisely the kind of case we have here. As the district court recognized, the ground on
which the Department allegedly acted—and the ground that applies generally to the class—is its
alleged policy of discrimination against religious exemptions. The scope of the alleged
discrimination in this case is indeed coterminous with the definition of the class. In that respect,
this case is akin to Title VII class actions in which the plaintiffs allege a pattern or practice of

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racial discrimination. See, e.g., Chicago Teachers Union, Local No. 1 v. Board of Education of
City of Chicago, 797 F.3d 426, 441-42 (7th Cir. 2015). Moreover, if the plaintiffs eventually
prove the existence of a discriminatory policy, final injunctive or declaratory relief would be
appropriate for the class as a whole. See, e.g., Gratz, 539 U.S. at 264-67; Chicago Teachers
Union, 797 F.3d at 442.
We differ with the district court, however, as to what that relief might look like. The
court appeared to assume that such relief would broadly enjoin the Department to provide a
class-wide “religious accommodation relating to the COVID-19 vaccine mandate.” July 14
Op. at 19. But an appropriate remedy might more narrowly enjoin the Department to abolish the
discriminatory policy, root and branch, and to enjoin any adverse action against the
class members on the basis of denials of religious exemptions pursuant to that policy.
See Masterpiece Cakeshop, 138 S. Ct. at 1732; but see id. at 1740 (Gorsuch, J. concurring).
Those denials are themselves discrete occurrences as to which such injunctive relief would be
final. And this relief might leave open the possibility for the Department to establish a need to
apply the vaccine mandate to individual service members without resorting to the discriminatory
policy. In any event, the particulars of any permanent injunction in this case can be litigated if
and when necessary. Thus, in summary, the Department has not made a strong showing that it “is
likely to succeed on the merits” of its appeal of the district court’s class-wide injunction. Nken,
556 U.S. at 434.
Several concluding observations are in order with respect to the certification issue. First,
and most remarkable, in bringing this motion the Department has not made any argument as to
whether the First Amendment claim (as opposed to the RFRA claim) was improperly certified.
That certification stands unchallenged; that claim can support class-wide relief as much as the
RFRA claim can; and that omission is an independent reason to deny the Department’s motion to
stay the class-wide preliminary injunction. Second, the Department might be correct that the
district court was mistaken to exclude from its definition of the class any member who chooses
to opt-out. See Dukes, 564 U.S. at 362 (“Rule [23] provides no opportunity for (b)(1) or (b)(2)
class members to opt out”); but cf. Eubanks v. Billington, 110 F.3d 87, 93-95 (D.C. Cir. 1997).

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That mistake, if it was one, can be corrected after disposition of the Department’s appeal of the
class-wide preliminary injunction.
We address more briefly the Department’s few arguments concerning the remaining
factors governing issuance of a stay of the district court’s class-wide preliminary injunction.
That injunction—as relevant to the Department’s arguments here—enjoins the Department from
“(i) taking, furthering, or continuing any disciplinary or separation measures against the
members of the class for their refusal to receive the COVID-19 vaccine . . . [and] (ii) Defendants
shall not place or continue active reservists on no points, no pay status for their refusal to get
vaccinated for COVID-19 due to their sincerely held religious beliefs[.]” The court further
stated that “[n]othing in this Order precludes the Department of the Air Force from considering
vaccination status in making deployment, assignment, and other operational decisions.” July 27
Order at 2-3; see Austin v. U.S. Navy Seals 1-26, et al., 142 S. Ct. 1301, 1301 (2022) (adopting
the same limiting language).
The Department argues that this injunction causes the Department to suffer “irreparable
harm” because it “requires [the Department] to retain”—as opposed to terminate—“nearly
10,000 unvaccinated service members who, in the judgment of professional military
commanders, are ineligible to deploy and are limited in their ability to travel for training,
exercise, and other operational needs.” Gov’t Br. at 20. The Department similarly argues that
the “no pay/no points status” portion of the injunction “requires [the Department] to return
reservist class members to their operational units and to pay them, even though they do not meet
medical readiness standards required for participating in the reserve and may not be able to
effectively perform their military duties.” Id. at 19. But those are all the very same harms that
the Department imposed on itself when, to its credit, it chose to grant temporary exemptions to
service members during the pendency of their requests for religious exemptions. Moreover, the
record shows that the Department routinely takes many months to render a final decision as to
those requests, during which time the Department’s temporary exemptions remain in place. That
suggests that the Department’s concerns about these harms are not as urgent as the Department’s
briefing now says. We therefore do not think the Department has demonstrated that the district
court likely abused its discretion when, in effect, it afforded the class members—during the

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pendency of claims as to which the Department has not yet shown a likelihood it will prevail—
the same relief that the Department itself has afforded them.
The Department also criticizes the district court’s assertion, in its opinion denying the
Department’s motion for an emergency stay, that, “in today’s global climate, it is in the public’s
interest for the armed services to remain at full strength, rather than separating thousands of
Airmen due to their refusal to get the COVID-19 vaccine.” August 19 Order at 4. We agree
with the Department’s criticism: whatever the merits of that assertion, the district court strayed
well outside its judicial role in making it. But we do not think that assertion is material to the
disposition of the Department’s motion here.
Finally, to assuage the Department’s concerns on one point, we deem the portions of the
district court’s injunction that the district court “rescinded” in its August 19 Order to be in fact
rescinded.
* * *
The Department’s motion for an emergency stay is denied. We will expedite the
Department’s appeal of the district court’s class-wide preliminary injunction. The Department
must file its principal brief within two weeks of the entry of this order. The plaintiffs will have
two weeks to respond. The Department will then have seven days to reply. Oral argument will
be scheduled for October 19, 2022, and we will strive to decide the Department’s appeal in
November.

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