Yesterday we filed a First Amended Complaint in Children’s Health Defense v. Hegseth, No. 1:25-cv-04363-ACR, in federal court in Washington, D.C. Here it is: FACfilestamped

We basically reframed based on the three service members we added to the complaint. But let me back up and explain how we got here.

The Original Complaint and the Noted Problem

The complaint we filed in December challenged the front door. The Department of Defense adopts the CDC childhood immunization schedule wholesale as a condition of entering the military, without any government agency ever having cumulatively safety tested the vaccine schedule. That’s not my belief. It’s a fact, set out by the Institute of Medicine twice in the past twenty-four years. We argued that made the requirement arbitrary and capricious. CHD was the only plaintiff because we couldn’t find any unvaccinated person wanting to join the military who would join as a plaintiff.

In its motion to dismiss, the Justice Department pointed out that we had no individual with an identified injury. The motion was denied for a technical problem but its argument had some merit. The problem was that if you are trying to enlist, the last thing you want in your file is a lawsuit against the Secretary of Defense.

The Pivot

However, what we did have were people already in uniform who had gone through the religious accommodation process and been ground down by it. So we added three active-duty Air Force plaintiffs, and we changed the case to a different administrative procedure act problem and a Religious Freedom Restoration Act and a constitutional claim. In short, we pivoted from the problem facing recruits to the problems service members faced in the religious exemption process.

In the Air Force you wait three years

The problem is the delay and deferral of decisions through a series of bureaucratic moves all pointing in the direction of not making any decision, forcing service members to wait and wait, and then forcing them to start the process all over for one reason or another. Between duty rotations, regulation changes and life, the process is, in many cases, never-ending.
The deadlines being missed are the Air Force’s own. DAFI 52-201 fixes the periods for deciding a request and resolving an appeal. Nobody imposed that timetable on the Department. It wrote it, but in many cases, the deadlines were not met by long periods of time, sometimes with an apology and sometimes without any timely explanation at all.

When denials do issue, they are templates. Identical least restrictive means conclusions across different claimants, different vaccines, different duties and assignments. One denial referred to a vaccine request as a beard waiver. The lawyer reviewing it caught the error, wrote it down, and it went out anyway.

Meanwhile the same institution hands out exemptions for secular reasons without any of this. Medical and administrative exemptions turn on an assessment of the individual member and can be granted without any of that machinery.

And when the Air Force reviews itself, it agrees. In the one case in the amended complaint that ran all the way to a discharge board, the Inspector General found the request was not processed as the regulation required, the Review Boards Agency found religious discrimination, and the Board for Correction of Military Records found the adverse actions unlawful. But despite all that, a ready, willing and able pilot has not been able to fly for three years because of the prior, reversed adverse decisions.

In Massachusetts you write a letter, and the state believes you

In Massachusetts, a parent who does not want a child vaccinated writes a letter. That is the procedure. Under M.G.L. c. 76, § 15, no child whose parent or guardian “states in writing that vaccination or immunization conflicts with his sincere religious beliefs” has to produce the physician’s certificate the statute otherwise requires for school admission.

No panel convenes. Nobody interviews the family. Nobody issues a memorandum finding the belief sincere and then concluding that the request does not meet the threshold. The words review, approval, hearing, sincerity, and renewal do not appear in the statute, because the statute creates no process for any of them to attach to. Depending on how you count the states currently in litigation, forty-four or forty-five states and the District of Columbia have a religious exemption of some kind, and I am not aware of one that puts a family through an adjudication, like what the military puts service personnel through.

Soldiers are not schoolchildren, and the armed forces have an interest in force health that a school district does not. Wanting to know something about a request before granting it might not be completely unreasonable per se. But it is worth noting how Massachusetts handles its version of the readiness problem. The religious exemption operates only “[i]n the absence of an emergency or epidemic of disease declared by the department of public health.” When there is an actual outbreak, the exemption switches off for everyone.

The Commonwealth answers the communicable disease question with a categorical rule and answers the belief question by believing people. But the armed services start with the opposite premise. Every service member has to convince one or more levels of religious belief adjudicators of their sincerity. There is no draft in this country. Every service member has volunteered to serve. In technical terms, the process out of the box seems screwed up.

The First Amended Complaint has the following paragraph which pretty much sums it all up:

“75. Three individual service members have now come forward in this case. But they are not alone. Other service members across the military, including members of the Children’s Health Defense Military Chapter community, have experienced the same delays, non-decisions, and regrettably, they have suffered the same adverse consequences to their careers while serving their country. The treatment of religious accommodation requests reflected in this case is part of a broader pattern across the military. This lawsuit seeks to expose, challenge, and remedy these failures. It is no small irony that our warriors who have dedicated their lives to protecting the freedoms of us all must fight their own government to protect their own.”

What’s Next

In a month, the DOJ will provide a four-page summary of why it thinks the new complaint fails to state a claim. We will have a week to respond and explain why it does. Then we will go before the judge and talk it through, per the judge’s personal dispositive motion practice rules. That will happen probably sometime later in September.

Rick Jaffe, Esq., over and out.