EMERGENCY DOCKET

With three conservatives dissenting, court declines to intervene on behalf of Air Force officer who won’t get vaccinated

The Supreme Court on Monday turned down a plea from a lieutenant colonel in the Air Force Reserve to block the Air Force from disciplining him because he is not vaccinated against COVID-19. Three justices – Clarence Thomas, Samuel Alito, and Neil Gorsuch – indicated that they would have granted the request and allowed him to continue to serve while his appeal continues.

The case, Dunn v. Austin, was brought by Lt. Col. Jonathan Dunn, an Air Force pilot who has served combat tours in Afghanistan and left active duty for the Air Force Reserve eight years ago. Dunn tested positive for COVID-19 last summer and requested a religious exemption from the Department of Defense’s requirement that all active-duty and reserve members of the armed forces be vaccinated against COVID-19. After his request was denied, Dunn was relieved of his command of a squadron; he then went to federal court in California, arguing that the denial of his request for a religious exemption violated both federal law and the Constitution when the Pentagon had granted “thousands” of exemptions for secular reasons.

The federal district court rejected Dunn’s request for a temporary order that would have barred the Air Force from taking action against him because of his failure to be vaccinated, and the U.S. Court of Appeals for the 9th Circuit also declined to step in.

Dunn came to the Supreme Court on April 11, asking the justices to intervene on an emergency basis while the litigation proceeds in the lower courts. In the wake of last month’s order from the justices allowing the Pentagon to consider whether members of the Navy SEALs have been vaccinated when making operational decisions, Dunn indicated that he was not asking the Supreme Court to block the Air Force from making similar decisions in his case. Rather, he wrote, he was seeking only to block the Air Force from “inflicting punishments that deprive him of his First Amendment freedoms and irreparably harm his career, including by categorically precluding him from serving in any unit.” 

In a brief filed by U.S. solicitor general Elizabeth Prelogar, the Pentagon urged the justices to stay out of the dispute, noting both that Dunn had not asserted that the COVID-19 vaccine is inconsistent with his Christian faith and that Dunn’s unit “is designed to be deployable worldwide with just 72 hours’ notice,” making vaccination “an essential component of military readiness.” Prelogar added that the Air Force had already relieved Dunn of his command for reasons entirely separate from his refusal to be vaccinated – “poor judgment and abuse of authority.” If the Supreme Court does not step in while Dunn’s appeal continues, Prelogar wrote, Dunn may not be able to receive reservist pay or accrue retirement credits, but if he wins on appeal he can be compensated for those losses.

In a brief unsigned order on Monday, the court denied Dunn’s request for temporary relief. The court did not provide any explanation for its ruling. Thomas, Alito, and Gorsuch indicated – also without any elaboration – that they would have granted Dunn’s request.

This article was originally published at Howe on the Court.