Court filing
21A477 008 Mar 15 2022 Reply 20220315170840331 21A477 Texas Navy Seals Reply For Filing - Scotus
Full text
No. 21A477
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
LLOYD J. AUSTIN, III, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF DEFENSE, ET AL., APPLICANTS
v.
U.S. NAVY SEALS 1-26, ET AL.
_______________
REPLY IN SUPPORT OF APPLICATION FOR A PARTIAL STAY
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 21A477
LLOYD J. AUSTIN, III, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF DEFENSE, ET AL., APPLICANTS
v.
U.S. NAVY SEALS 1-26, ET AL.
_______________
REPLY IN SUPPORT OF APPLICATION FOR A PARTIAL STAY
_______________
The district court’s preliminary injunction compelling the
Navy to assign and deploy elite Special Warfare personnel without
regard to their vaccination status is an extraordinary and unprec-
edented intrusion into military decisionmaking. Admiral William
K. Lescher, the Navy’s second-highest ranking uniformed officer,
has attested that it will cause “immediate harm to the Navy” and
“to the national security of the United States” by mandating what
he regards as a “dereliction of duty.” Appl. App. 103a, 110a.
Respondents’ opposition further confirms that a partial stay of
that injunction as it applies to the Navy’s operational decisions
is both urgently needed and demonstrably warranted.
Respondents do not seriously attempt to defend an injunction
requiring the Navy to assign and deploy SEALs and other Special
Warfare personnel against its military judgment. Instead, re-
spondents now suggest that the injunction may not have that effect.
2
That contradicts respondents’ prior representations, the contempt
motion they have already filed in district court, and the decisions
below. It also confirms that a partial stay is warranted: Con-
trary to respondents’ assertions, the Navy does not seek to re-
taliate against or discipline respondents for requesting religious
accommodations, and granting the partial stay would not allow it
to do so. Instead, the Navy seeks only an order from this Court
permitting it to consider respondents’ lack of vaccination in mak-
ing assignment, deployment, and other operational decisions --
just as it does with every other unvaccinated servicemember. Re-
spondents offer no reason to withhold that modest relief.
A partial stay is also warranted because respondents’ RFRA
claims lack merit. As Admiral Lescher and other senior officers
have explained, the Navy has an extraordinarily compelling inter-
est in ensuring that Special Warfare personnel are fully medically
ready to deploy, and that interest justifies requiring them to be
vaccinated against COVID-19. Respondents all but ignore that
showing and instead criticize various other aspects of the Navy’s
COVID-19 policies that have no bearing on their RFRA claims.
Finally, the equities overwhelmingly favor a partial stay.
The injunction is forcing the Navy to subordinate its judgment
about military readiness to the contrary views of a civilian court.
It is also compelling Navy officers to make operational decisions
under constant threat of judicial second-guessing and on pain of
3
contempt. Respondents, in contrast, would suffer no irreparable
harm from a partial stay that would allow them to remain unvac-
cinated without risk of discipline or discharge.
I. THIS COURT WOULD LIKELY GRANT REVIEW IF THE COURT OF APPEALS
AFFIRMED THE DISTRICT COURT’S INJUNCTION
Respondents do not seriously dispute that this Court would
likely grant review if the Fifth Circuit affirmed the district
court’s unprecedented injunction. They note in passing (Opp. 3)
the absence of a “circuit split” and the case’s “preliminary”
posture. But the Court has granted review of preliminary injunc-
tions that interfered with national security even in the absence
of a division of authority. See, e.g., Winter v. NRDC, Inc., 555
U.S. 7, 19-20 (2008). It would likely do so here as well.
II. THE GOVERNMENT IS LIKELY TO SUCCEED ON THE MERITS
This Court would likely reverse or narrow the preliminary
injunction because it intrudes on core Article II military pre-
rogatives and because respondents’ RFRA claims lack merit.1
A. The Injunction Is Not An Appropriate Remedy
1. As the government has explained (Appl. 18-22), insofar
as the injunction prohibits the Navy from considering whether a
servicemember is vaccinated in making deployment, assignment, and
other operational decisions, it overrides military commanders’
1 Respondents disclaim reliance on their First Amendment
claims in opposing a partial stay. Opp. 25 n.13; cf. Appl. 32-35.
4
“professional military judgments” about the best way to prepare
for and conduct military operations. Gilligan v. Morgan, 413 U.S.
1, 10 (1973). That is neither “appropriate relief” under RFRA, 42
U.S.C. 2000bb-1(c), nor consonant with “traditional principles of
equity,” Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund,
Inc., 527 U.S. 308, 319 (1999) (citation omitted).
Respondents assert (Opp. 33) that “injunctive relief against
government officials” is appropriate relief. But that frames the
issue at too high a level of generality. The question is whether
this specific injunction is appropriate insofar as it trenches on
core Article II military prerogatives. It is not. Indeed, re-
spondents still have not identified any precedent for such a ju-
dicial intrusion, which contradicts an unbroken line of decisions
holding that courts may not second-guess military judgments about
assignments and fitness for duty. Appl. 18-20.2
2. Rather than defend that unprecedented injunction, re-
spondents now strive to obscure its terms. They repeatedly assert
that the injunction “does not require the Navy to deploy any of
the thirty-five plaintiffs,” Opp. 1 (footnote omitted); see Opp.
2 Respondents dismiss (Opp. 30-31) those precedents because
they did not involve RFRA. But nothing in RFRA displaced the
deeply rooted judicial “reluctan[ce] to intrude upon the authority
of the Executive in military and national security affairs,” De-
partment of the Navy v. Egan, 484 U.S. 518, 530 (1988). To the
contrary, in enacting RFRA, Congress sought to preserve those tra-
ditional principles of military deference. Appl. 23.
5
3, 13, 14, 15, 27, 29, 34, and “merely upholds what the military
requires by policy,” Opp. 29; see Opp. 5, 28. That is wrong. And
even if there were some doubt on that score, it would only rein-
force the propriety of a partial stay to ensure that the injunction
does not impose burdens that even respondents are unwilling to
forthrightly defend.
The district court enjoined the Navy from enforcing orders
implementing the vaccination requirement, including an order spec-
ifying that “service members who are not vaccinated, regardless of
exemption status, may be temporarily reassigned” based on “opera-
tional readiness and mission requirements.” Appl. App. 87a-88a
(NAVADMIN 256/21); see id. at 56a. The court also enjoined the
Navy from taking “adverse action” against respondents based on
their “requests for religious accommodation.” Id. at 56a.
The government sought a partial stay of that injunction in-
sofar as it precludes the Navy from taking into account respond-
ents’ lack of vaccination “in making deployment, assignment, or
other operational decisions.” Appl. App. 2a. Had either of the
lower courts understood the injunction not to have that effect,
they would have said so. But they did not. Instead, the district
court reiterated that the injunction compels the Navy to assign
respondents as if they were vaccinated. Id. at 60a. The court
emphasized that the injunction would prevent the Navy from “block-
ing [a SEAL] from the training program he would otherwise attend”
6
based on his lack of vaccination -- and so presumably would like-
wise prevent the Navy from blocking the SEAL from deployment based
on his lack of vaccination. Ibid. And the Fifth Circuit rested
its decision on its (mistaken) conclusion that respondents could
be deployed without undermining their missions. Id. at 25a-26a.
Admiral Lescher’s declaration underscores the impact of those
orders: Because of the injunction, the Navy is being forced to
make operational decisions contrary to its military judgment by
assigning and deploying respondents without regard to their lack
of vaccination. Appl. App. 103a, 118a-119a. Already, that has
included sending one respondent “to Hawaii for duty on a subma-
rine.” Appl. 2.3
Respondents, for their part, understood the injunction ex-
actly the same way. In the Fifth Circuit, respondents explained
that they “were previously deployed, promoted, trained, and
3Respondents quibble (Opp. 3 n.4) with that description.
But they concede that the injunction has required the Navy to
assign the respondent in question to an operational unit in Hawaii,
where he will join a SEAL Delivery Vehicle (SDV) team. Opp. App.
3a. The Navy has informed this Office that, as a member of that
team, the respondent will help operate a Dry Deck Shelter, which
is a small enclosed module attached to the back of a submarine
that allows SEALs and SDVs to egress while submerged. The re-
spondent states (ibid.) that he was told he would not be “attached
to a submarine while * * * unvaccinated,” but he offers no reason
to think that the person who allegedly told him that was aware that
he is a plaintiff in this case and therefore covered by the injunc-
tion, especially given that he is proceeding under a pseudonym.
Cf. Appl. 38.
7
trained others” and asserted that the injunction “requires the
Navy to treat [them] as they were treated before.” C.A. Stay Opp.
2. Respondents’ contempt motion characterizes the injunction as
preventing the Navy from considering their unvaccinated status in
changing their job duties, D. Ct. Doc. 96, at 4 (Jan. 31. 2022),
and asserts that various assignment decisions warrant contempt,
including that SEAL 21 has allegedly been prevented from “partic-
ipat[ing] in training, which means he cannot deploy,” id. at 7.
Even now, respondents’ opposition carefully avoids clearly
stating what it seeks to imply: That the Navy may, consistent
with the injunction, refuse to assign or deploy respondents because
they are unvaccinated. To the contrary, respondents ultimately
appear to recognize that the injunction requires the Navy to
“treat[] servicemembers with religious accommodation requests as
vaccinated,” Opp. 29 (emphasis added), even though they are not.
Respondents also assert, citing their own declarations, that
they are not actually at risk of deployment. Opp. 6. But Admiral
Lescher has made clear that most respondents occupy positions that
may require them to “deploy anywhere in the world in the immediate
future” for sensitive, high-risk missions. Appl. App. 118a. Other
respondents currently have training assignments, ibid., but even
“servicemembers currently serving in a training capacity may be
called upon at any moment to deploy for matters of the utmost
urgency.” D. Ct. Doc. 111, at 14 (Feb. 7, 2022).
8
Finally, even if respondents had raised some doubt about the
injunction’s scope, that would only be a further reason to grant
a partial stay. The injunction is compelling Navy officers to
assign and deploy respondents against their military judgment --
and to do so under a Damoclean threat of ongoing contempt proceed-
ings should respondents be dissatisfied with their assignments or
duties. Yet both lower courts refused to clarify or partially
stay the injunction to remove that intolerable intrusion on mili-
tary prerogatives. Only this Court can grant effective relief.
B. Respondents’ RFRA Claims Lack Merit
1. The government has demonstrated at length (Appl. 22-31)
that the Navy has a compelling interest in requiring servicemem-
bers, especially Naval Special Warfare personnel, to be vaccinated
against COVID-19 (and up to 17 other illnesses too, see Appl. 6).
Navy SEALs and other members of the Special Warfare community can
be called upon to deploy anywhere in the world on short notice; to
complete high-risk missions under extreme conditions; and to op-
erate in small teams and close quarters for extended periods.
Appl. App. 107a. The Navy has an extraordinarily compelling in-
terest in ensuring that those servicemembers are as physically and
medically prepared as possible, and vaccination is the least re-
strictive means of furthering that interest. Like the lower
courts, respondents do not seriously engage with -- much less
contest -- any of the extensive declarations from high-ranking
9
Navy officers establishing those points.
Instead, respondents seek to substitute their own judgment
for that of senior military leaders. For instance, they assert
(Opp. 21-22) that their “non-vaccination” will not “make or break
the Navy’s or [Special Warfare’s] ability to operate” because they
and the putative class members constitute “0.6% of all Navy ser-
vicemembers,” and the Navy otherwise enjoys a “nearly universal
military vaccination” rate. But even one SEAL who falls ill can
jeopardize an entire mission, making it vital for all servicemem-
bers serving in those elite units to be vaccinated against COVID-
19 and other contagious diseases. See Appl. 31. Admiral Lescher
has emphasized that he would regard it as a “dereliction of duty”
to order “unvaccinated personnel into an environment in which they
endanger their lives,” risk “the lives of others,” and “compromise
accomplishment of essential missions.” Appl. App. 110a. Respond-
ents offer no sound basis to second-guess that military judgment.
Respondents also rely heavily (Opp. 22-24) on the fact that
the Navy was able to successfully conduct missions over the past
two years without requiring servicemembers to be vaccinated. But
other Armed Forces missions have not been so fortunate, and the
Navy is entitled to seek to eliminate preventable risks to ser-
vicemembers’ safety and mission success. Appl. 29-30.4
4 Respondents assert without citation (Opp. 25) that “vac-
cination does not prevent spread” of COVID-19. That is wrong.
10
2. Respondents repeat their assertion (Opp. 24-26) that the
Navy’s vaccination requirement is underinclusive. But they do not
and cannot dispute the relevant point: No member of the Special
Warfare community has been granted a permanent exemption from the
vaccination requirement on any ground, and the handful who have
temporary medical exemptions are not similarly situated to respond-
ents because they will be vaccinated when their temporary conditions
clear and will not be deployed in the meantime. Appl. 7, 32-34.5
Respondents also attack various other aspects of the Navy’s
COVID-19 policies, but their criticisms are both wrong and irrel-
evant. Respondents observe that the Navy does not re-test asymp-
tomatic servicemembers who have completed a quarantine after test-
ing positive for COVID-19. Opp. 26 (citing C.A. ROA 2735, which
reprints NAVADMIN 07/22). But that is because re-tests would
generate false positives “due to the presence of persistent non-
“COVID-19 vaccines are effective and can lower your risk of getting
and spreading the virus that causes COVID-19. COVID-19 vaccines
also help prevent serious illness and death in children and adults
even if they do get COVID-19.” CDC, Benefits of Getting a COVID-
19 Vaccine, go.usa.gov/xznGV (emphasis added).
5 The Navy previously informed this Office that there were
“only four temporary medical exemptions among all Naval Special
Operators” and “that all four of the recipients will get vaccinated
when their temporary medical issue clears.” Appl. 8 n.1. The
Navy informs this Office that one of those exemptions has now
expired, but that the Navy has determined that the recipient hap-
pens to be a respondent in this case -- and thus will not get
vaccinated on that basis even though his temporary medical issue
has cleared.
11
infectious viral fragments.” NAVADMIN 07/22 (emphasis added).
Respondents also note that the Navy does not categorically prohibit
deployment of servicemembers who may be at high risk for COVID-19
complications. Opp. 25-26 (citing C.A. ROA 2736, which reprints
NAVADMIN 07/22). But “[t]he decision to operate and deploy with
vaccinated high-risk personnel rests with the Commander, as ad-
vised by medical providers.” NAVADMIN 07/22. That is precisely
the sort of decisionmaking that the injunction prevents military
commanders from exercising with respect to respondents. And in
any event, conditions that would put a servicemember at high risk
of COVID-19 complications generally would also disqualify him from
Special Warfare duty. Appl. 5-6; see Appl. App. 71a-76a.
3. Rather than confronting the Navy’s compelling case for
requiring that they be vaccinated, respondents principally attack
the Navy’s procedures for addressing religious-accommodation re-
quests. Opp. 2-3, 7-9, 18-21. But even if those criticisms had
merit, they would not entitle respondents to relief. The question
in a RFRA case is whether the government has demonstrated in court
that it has a compelling interest in the “application of the chal-
lenged law” to “the particular claimant[s] whose sincere exercise
of religion is being substantially burdened.” Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682, 726 (2014) (citation omitted).
The question here is thus whether the Navy has shown that it has
a compelling interest in vaccinating these 35 members of its elite
12
Special Warfare community. The government has established that
interest with detailed, specific declarations from senior military
officers. Appl. App. 95a-188a. Given that showing, respondents’
complaints about the process by which their exemption requests
were considered, the form and content of the letters denying their
requests, and the Navy’s treatment of other exemption requests
from differently situated servicemembers are beside the point.
In any event, respondents’ description of the process is not
accurate.6 That the Navy rarely grants religious exemptions from
vaccination requirements (cf. Opp. 19) reflects not a hostility to
religion, but a compelling interest in minimizing the risk to, and
maximizing the success of, its dangerous and critical missions.
Appl. App. 114a-115a. Furthering that interest requires all per-
sonnel who are or may be deployed on such missions to be vac-
cinated. And that the Navy uses similar language in letters deny-
ing exemption requests (see Opp. 19-20) does not imply that Navy
officers are falsely representing that they gave individualized
6 In particular, respondents’ description (Opp. 19) of a
“six-phase, fifty-step process that begins with a prepared disap-
proval template” is a gross mischaracterization. Commanders are
provided with templates recommending both for and against granting
a religious accommodation. Appl. App. 152a. And the 50 steps --
reproduced at Opp. App. 61a-77a -- include detailed instructions
for staff to log and track accommodation requests, such as “Once
at the Inbox, select New > Templates > Religious Accommodation
Request” (step 18) and “Move to the right side of the spreadsheet”
(step 37). Id. at 69a, 75a. That process does not impose onerous
burdens on servicemembers requesting such accommodations.
13
consideration to each request. Finally, respondents identify no
authority for their assertion (Opp. 19) that the Navy must “explain
with * * * specificity” its reasons for each denial, especially
given that similar programmatic interests apply to each.
III. THE EQUITIES OVERWHELMINGLY FAVOR A PARTIAL STAY
The remaining considerations overwhelmingly favor granting
the partial stay the government seeks here, which would allow the
Navy to take into account respondents’ lack of vaccination in
making operational decisions, including assignments and deploy-
ments, while ensuring that respondents are not disciplined or dis-
charged during the litigation for not being vaccinated. Appl. 35-
40. Respondents’ speculation (Opp. 34) that another “serious out-
break” of COVID-19 is unlikely is not a sound basis for disregard-
ing the risk assessments made by senior military officials, who
have determined that vaccination is essential to military readi-
ness -- particularly for elite Navy SEALs, who can be called on at
any time to execute extraordinarily sensitive missions under con-
ditions in which other “mitigation measures” (ibid.) like masking,
social-distancing, or teleworking are impracticable or impossible.
See, e.g., Appl. App. 67a, 103a, 109a-120a. Respondents assert
that “the Court does not have to agree with” Admiral Lescher’s
judgment that “vaccinating [Naval Special Warfare] members against
COVID is critical for mission success.” Opp. 32-33. But the Court
should decline respondents’ invitation to “substitute [their] own
14
assessment” of those matters for the “predictive judgments” made
by the Executive officials responsible for defending the country.
Trump v. Hawaii, 138 S. Ct. 2392, 2421 (2018).
The injunction in its current form also cannot be defended as
merely preserving the “status quo.” Opp. 34. As respondents
nowhere dispute, the status quo before litigation was that all
servicemembers who were not vaccinated against COVID-19, “whether
for religious or secular reasons,” could not be assigned to an
operational unit and were not deployable absent a separate medical
waiver. Appl. App. 98a; see Appl. 10. The injunction, by con-
trast, requires the Navy to treat respondents as deployable not-
withstanding their lack of medical waivers. The injunction has
also upended the status quo by forcing Navy officers to consider
whether a civilian court may perceive particular assignments or
other operational decisions as forms of adverse action -- on pain
of contempt. Appl. 37-38. That the district court has not yet
acted on respondents’ current contempt motion (Opp. 15-16) cannot
undo the ongoing and irreparable harm the injunction is already
causing.
On the other side of the balance, respondents assert that the
Navy has retaliated against or punished them because they have
requested religious exemptions. That is incorrect.7 But to be
7 Respondents recycle many of their retaliation allegations
(e.g., Opp. 3-4) from their pending contempt motion, which lacks
15
clear: The partial stay that the government seeks would not permit
retaliation because of respondents’ requests for religious exemp-
tions; instead, it would merely allow the Navy to consider re-
spondents’ lack of vaccination in assigning and deploying them --
exactly as the Navy does with all other unvaccinated servicemem-
bers, regardless of the reason for their lack of vaccination.
Respondents also assert irreparable harm in the form of “loss
of First Amendment freedoms.” Opp. 35 (citation omitted). But
the government has already explained that respondents would remain
free during litigation to adhere to their stated religious beliefs
without fear of being discharged or disciplined. Appl. 39-40.
Allowing the Navy to apply its generally applicable and religiously
neutral policies on deployment and assignment of unvaccinated ser-
vicemembers would not violate respondents’ First Amendment rights,
even momentarily. Appl. 32-35.
merit. See D. Ct. Doc. 110, at 10-17 (Feb. 7, 2022) (government
response). The Navy did not, for example, deny any respondent
treatment for traumatic brain injury. For the respondent in ques-
tion, the Navy was “unable to secure permission for him to travel
in time for his preferred [treatment] start date at his preferred
facility,” but it has since secured the necessary permission, with
a “start date of March 27, 2022.” Id. at 15. Other respondents
object to being assigned duties that they regard as unpleasant,
such as picking up trash. But commanding officers have attested
that those duties “are typical and appropriate duties within the
Navy” and were not “related to [respondents’] exemption requests.”
Id. at 14; see D. Ct. Doc. 111, at 9 n.8 (“[I]t it is common Navy
practice for all servicemembers to pick up trash as part of their
duties.”); id. at 36 (describing the maintenance of SEAL facilities
and equipment as an “all-hands responsibility”).
16
* * * * *
For the foregoing reasons and those stated in the government’s
application, this Court should partially stay the district court’s
preliminary injunction pending the completion of further proceed-
ings in the court of appeals and, if necessary, this Court. Spe-
cifically, the injunction should be stayed insofar as it precludes
the Navy from considering respondents’ vaccination status in mak-
ing deployment, assignment, and other operational decisions.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
MARCH 2022
File and source
- File
- 21A477_008_Mar_15_2022_Reply_20220315170840331_21A477_Texas_Navy_SEALs_-_reply_for_filing.pdf
- Size
- 519,436 bytes
- SHA-256
- 569806b8c95309b221dd52fe689c3bd23741aab3f4115709156bbaca3c672700
- Our copy
- 21A477_008_Mar_15_2022_Reply_20220315170840331_21A477_Texas_Navy_SEALs_-_reply_for_filing.pdf
- Original
- www.supremecourt.gov