First Amendment & Religious Freedom Restoration Act (RFRA) challenges to the U.S. Air Force’s vaccine mandate; “Strict scrutiny”; Applicability of an “abstention test” to the RFRA claim; Mindes v Seaman (5th Cir); Scope of an injunction; Class certification; FedRCivP 23

The court affirmed injunctive relief for plaintiffs-individual Air Force service members and the certified class on their First Amendment and RFRA claims. It concluded that under “the RFRA, the Air Force wrongly relied on its ‘broadly formulated’ reasons for the vaccine mandate to deny specific exemptions to the” named plaintiffs, especially given that it “granted secular exemptions to their colleagues.” Further, it found that the Air Force’s treatment of their religious exemption requests also showed common questions for the class. Plaintiffs claimed the Air Force granted thousands of secular exemptions while only granting 135 religious ones. They alleged the vaccine mandate substantially burdened their religious exercise in violation of the First Amendment and the RFRA. The district court ruled they were likely to succeed on the merits, and granted them an injunction prohibiting the Air Force from disciplining them for failing to take a vaccine. But it did not interfere with operational decisions as to their duties. It then certified the class, which consisted “of thousands of similar service members and extended this injunction to the class.” On appeal, the court noted that any law burdening religion is subject to “strict scrutiny.” The RFRA required the Air Force to show “a compelling interest in requiring a ‘specific’ service member to get vaccinated based on that person’s specific duties and working conditions. . . . Most glaringly, [its] opening brief did not describe the duties of a single Plaintiff.” The Air Force asked the court to apply a Fifth Circuit “abstention test,” adopted in Mindes, containing an exhaustion requirement. The court rejected this because “the Supreme Court has never adopted anything like the abstention test that the Air Force asks us to apply here.” The court found that it could only adopt “those abstention rules that comport with the law under which a plaintiff sues. And RFRA does not contain Mindes’s test.” Further, the individual plaintiffs “need not wait until the Air Force has kicked them out for exercising their religion before their claims are ripe.” The court also held that the district court did not abuse its discretion by “extending its narrow-in-scope injunction to the broader class.” As to the class certification, the district court identified the required “commonality” and “typicality” prerequisites. Plaintiffs established common questions that “have the ‘right’ kind of yes-or-no answers for the entire class.” Further, a district court can answer whether the “alleged policies violate RFRA and the First Amendment in the same way.”