Court filing
Application - Scotus
Full text
No. 21A477
In the Supreme Court of the United States
L LOYD J. A USTIN , III, IN HIS OFFICIAL CAPACITY
AS S ECRETARY OF D EFENSE , ET AL .,
Applicants,
v.
U.S. NAVY SEALS 1-26, ET AL.,
Respondents.
RESPONSE IN OPPOSITION TO APPLICATION
FOR PARTIAL STAY OF THE INJUNCTION
KELLY J. SHACKLEFORD HEATHER GEBELIN HACKER
JEFFREY C. MATEER Counsel of Record
HIRAM S. SASSER, III ANDREW B. STEPHENS
DAVID J. HACKER Hacker Stephens LLP
MICHAEL D. BERRY 108 Wild Basin Rd. South
JORDAN E. PRATT Suite 250
First Liberty Institute Austin, Texas 78746
2001 W. Plano Pkwy. (512) 399-3022
Suite 1600 heather@hackerstephens.com
Plano, Texas 75075
(972) 941-4444 Counsel for Respondents
TABLE OF CONTENTS
Page
Table of Authorities......................................................................................................................... ii
Introduction and Reasons to Deny the Application ................................................................... 1
Statement of the Case ..................................................................................................................... 6
I. Factual Background ........................................................................................................ 6
A. The Navy’s vaccination policies ............................................................................. 7
B. The Navy’s discriminatory actions ....................................................................... 9
C. Harm to plaintiffs .................................................................................................. 11
II. Procedural History........................................................................................................ 12
III. The Preliminary Injunction ......................................................................................... 13
Argument ........................................................................................................................................ 16
I. The Navy Is Unlikely to Succeed on the Merits Because the
Application of Its Vaccine Mandate to Plaintiffs Violates RFRA. ......................... 17
A. The Navy’s religious accommodation process is a sham. ................................ 18
B. The Navy lacks a compelling interest in forcing plaintiffs to
receive a COVID-19 vaccination despite their sincere religious
beliefs. ..................................................................................................................... 21
II. The Preliminary Injunction Is Appropriate Equitable Relief. ............................... 26
A. The preliminary injunction preserves the status quo. ..................................... 27
B. Blind deference to the military is inconsistent with RFRA. ........................... 30
C. The preliminary injunction is appropriate equitable relief under
RFRA. ..................................................................................................................... 33
III. The Navy Has Not Shown It Will Suffer Irreparable Harm Without a
Stay and the Balance of Equities Weighs in Plaintiffs’ Favor. ............................... 34
Conclusion....................................................................................................................................... 36
i
TABLE OF AUTHORITIES
Page(s)
Cases
Air Force Officer v. Austin,
No. 5:22-CV-00009-TES, 2022 WL 468799 (M.D. Ga. Feb. 15, 2022) ............................. 28
Antonellis v. United States,
723 F.3d 1328 (Fed. Cir. 2013) .............................................................................................. 30
Armstrong v. Exceptional Child Ctr., Inc.,
575 U.S. 320 (2015) ................................................................................................................. 33
Bryant v. Gates,
532 F.3d 888 (D.C. Cir. 2008) ................................................................................................ 30
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ........................................................................................................... 18, 30
Chappell v. Wallace,
462 U.S. 296 (1983) ................................................................................................................. 30
Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520 (1993) ........................................................................................................... 25, 26
Church v. Biden,
No. 21-cv-2815, 2021 WL 5179215 (D.D.C. Nov. 8, 2021) ................................................. 28
Cutter v. Wilkinson,
544 U.S. 709 (2005) ................................................................................................................. 31
Dayton Bd. of Educ. v. Brinkman,
439 U.S. 1358 (1978) (Rehnquist, J., in chambers) ............................................................ 27
Dep’t of the Navy v. Egan,
484 U.S. 518 (1988) ................................................................................................................. 30
Doe v. Gonzales,
546 U.S. 1301 (2005) (Ginsburg, J., in chambers) ................................................................ 5
Does 1-3 v. Mills,
142 S. Ct. 17 (2021) ........................................................................................................... 31, 33
Dunn v. Smith,
141 S. Ct. 725 (2021) ......................................................................................................... 22, 24
Elrod v. Burns,
427 U.S. 347 (1976) (plurality op.) ........................................................................................ 35
Fulton v. City of Philadelphia,
141 S. Ct. 1868 (2021) ....................................................................................................... 21, 25
Gilligan v. Morgan,
413 U.S. 1 (1973) ..................................................................................................................... 30
ii
Goldman v. Weinberger,
475 U.S. 503 (1986) ................................................................................................................. 30
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ..................................................................................................... 18, 21, 32
Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.,
527 U.S. 308 (1999) ................................................................................................................. 33
Harkness v. Sec’y of the Navy,
858 F.3d 437 (6th Cir. 2017) .................................................................................................. 30
Hollingsworth v. Perry,
558 U.S. 183 (2010) ................................................................................................................. 17
Holt v. Hobbs,
574 U.S. 352 (2015) ........................................................................................................ passim
Houchins v. KQED, Inc.,
429 U.S. 1341 (1977) ............................................................................................................... 28
Korematsu v. United States,
323 U.S. 214 (1944) ................................................................................................................... 2
Navy Seal 1 v. Austin,
No. 8:21-CV-2429-SDM-TGW, 2022 WL 534459 (M.D. Fla. Feb. 18, 2022) .................. 28
Nken v. Holder,
556 U.S. 418 (2009) ..................................................................................................... 16, 17, 34
Orloff v. Willoughby,
345 U.S. 83 (1953) ................................................................................................................... 30
Packwood v. Senate Select Comm. on Ethics,
510 U.S. 1319 (1994) (Rehnquist, C. J., in chambers) ....................................................... 16
Poffenbarger v. Kendall,
No. 3:22-CV-1, 2022 WL 594810 (S.D. Ohio Feb. 28, 2022) .............................................. 28
Reaves v. Ainsworth,
219 U.S. 296 (1911) ................................................................................................................. 30
Robert v. Austin,
No. 21-cv-2228, 2022 WL 103374 (D. Colo. Jan. 11, 2022) ................................................ 28
Roman Cath. Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) ..................................................................................................... 23, 32, 35
Ruckelshaus v. Monsanto Co.,
463 U.S. 1315 (1983) (Blackmun, J., in chambers) ............................................................. 16
Sebra v. Neville,
801 F.2d 1135 (9th Cir. 1986) ................................................................................................ 30
Tandon v. Newsom,
141 S.Ct. 1294 (2021) ........................................................................................................ 25, 35
iii
Tanzin v. Tanvir,
141 S. Ct. 486 (2020) ............................................................................................................... 33
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ............................................................................................................... 2
United States v. Sterling,
75 M.J. 407 (C.A.A.F. 2016) .................................................................................................. 29
United States v. Webster,
65 M.J. 936 (Army Ct. Crim. App. 2008) ....................................................................... 30, 31
Whole Woman’s Health v. Jackson,
141 S. Ct. 2494 (2021) ............................................................................................................. 33
Williams v. Zbaraz,
442 U.S. 1309 (1979) (Stevens, J., in chambers) ................................................................. 16
Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) ............................................................................................................. 30
Constitutional Provisions
U.S. Const. art. I § 8 ...................................................................................................................... 29
Statutes
10 U.S.C. § 774 ............................................................................................................................... 30
42 U.S.C.
§ 2000bb-1 ................................................................................................................................ 18
§ 2000bb-1(b) ..................................................................................................................... 18, 27
§ 2000bb-1(c) ........................................................................................................................... 33
§ 2000bb-2(1) ........................................................................................................................... 29
Rules
Fifth Cir. R. 47.7 .............................................................................................................................. 5
Sup. Ct. R. 10.................................................................................................................................... 3
Sup. Ct. R. 23.3........................................................................................................................... 5, 16
Other Authorities
David Shepardson, “U.S. to extend airplane, transit mask mandate through
April 18,” Reuters (Mar. 10, 2022), https://www.reuters.com/world/us/us-
extend-airplane-transit-mask-mandate-through-april-18-official-2022-03-10/ ............... 5
David Shepardson, “United Airlines to let unvaccinated employees return to
jobs March 28- memo,” Reuters (Mar. 10, 2022),
https://www.reuters.com/business/aerospace-defense/united-airlines-let-
unvaccinated-employees-return-jobs-march-28-memo-2022-03-10/ .............................. 4-5
iv
Diana Stancy Correll, “Omicron isn’t significantly impacting Navy operations,
admiral says,” Navy Times (Jan. 27, 2022),
https://www.navytimes.com/news/your-navy/2022/01/27/omicron-isnt-
significantly-impacting-navy-operations-admiral-says/ ..................................................... 9
U.S. Navy COVID-19 Updates, Mar. 9, 2022, https://www.navy.mil/US-Navy-
COVID-19-Updates/ .................................................................................................. 10, 11, 25
v
INTRODUCTION AND REASONS TO DENY THE APPLICATION
The preliminary injunction at issue does not require the Navy 1 to deploy any of the
thirty–five plaintiffs—U.S. Navy SEALs and Naval Special Warfare personnel honorably
serving our country. Both the district court and the Fifth Circuit confirmed that. App.14a,
27a-28a, 60a, 66a. 2 The injunction merely preserves the status quo while this case is liti-
gated. Far from supplanting military judgment, the injunction retains the judgments the
Navy already made in terms of plaintiffs’ jobs, pay, and training. The only things that
changed those judgments were plaintiffs’ requests for accommodation of their sincere reli-
gious beliefs against COVID-19 vaccination. The evidence shows that before those requests,
the Navy assigned plaintiffs to their current duty stations and even successfully deployed
many of them during the pandemic despite vaccination status. But the Navy has not granted
a single request for religious accommodation for any servicemember, though it has granted
hundreds of non-religious exemptions. While judges should not presume to run the military,
neither may courts turn a blind eye to violations of the Constitution or the Religious Free-
dom Restoration Act (RFRA). And the Navy cannot cloak its desire to punish plaintiffs for
1
Applicants are Secretary of Defense Lloyd Austin and Secretary of the Navy Carlos
Del Toro in their official capacities, as well as the Department of Defense (DoD). This brief
refers to the Applicants collectively as “the Navy.”
2
“App.” refers to the Applicants’ appendix. “Resp.App.” refers to the Respondents’
appendix. “ROA” refers to the record on appeal filed with the Fifth Circuit.
1
requesting religious accommodation in claimed “operational” needs without judicial scru-
tiny. 3 Allowing blind deference to military preferences, as the Navy urges, would rewrite
RFRA. Only Congress may do that. And it would be inappropriate to create new legal doc-
trine in this procedural posture.
A stay is unwarranted. The Navy cannot show that it is likely that this Court would
grant certiorari because the Navy is unlikely to prevail on the merits. Despite over 99% of
the Navy being vaccinated, App.6a, the Navy has not granted a single religious exemption
for the COVID-19 vaccination to any active or reserve duty servicemember while granting
hundreds of exemptions for secular reasons, including to other members of Naval Special
Warfare (NSW), App.7a. The Navy argues that plaintiffs’ positions in the NSW community
justify the denial of their requests, but individual circumstances are not considered in the
Navy’s religious accommodation process, which the district court found to be “by all ac-
counts . . . theater,” based on the evidence. App.31a. The Navy is “rubber stamp[ing]” a
denial on every religious accommodation request regardless of individual circumstances,
merely paying lip service to their exacting burden. App.31a; see also Part I.A infra. The
Navy’s stay application does not even mention this important part of the lower court deci-
sions and the district court’s factual findings. Thus, the Navy also cannot show that it is
likely to succeed on the merits because its farcical religious accommodation process violates
3
See Korematsu v. United States, 323 U.S. 214, 234 (1944) (Murphy, J., dissenting),
abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018) (“Individuals must not be left impov-
erished of their constitutional rights on a plea of military necessity that has neither sub-
stance nor support. Thus, like other claims conflicting with the asserted constitutional
rights of the individual, the military claim must subject itself to the judicial process of hav-
ing its reasonableness determined and its conflicts with other interests reconciled.”)
2
RFRA. And while this case involves an important issue, there is no circuit split, and both
this case and others involving RFRA claims against military vaccine mandates are still in
preliminary stages of litigation. See Sup. Ct. R. 10.
If the injunction does not require the Navy to deploy plaintiffs, 4 what is the Navy really
asking this Court to allow it to do while the case proceeds? Simple: It wants license to en-
gage in hostile tactics designed to coerce plaintiffs into disregarding their religious beliefs.
The Navy claims a stay permitting these actions is necessary for health, safety, and force
readiness, but those broadly stated concerns are a fig leaf. The Navy’s implementation of
the vaccine mandate is underinclusive because it has allowed secular exemptions and toler-
ates the presence of COVID-positive individuals, which undermines the Navy’s asserted
compelling interests. See Part I.B infra. It does not take specialized military judgment to
see that the Navy’s actions have little to do with those interests, as the evidence shows. As
a few examples, the Navy:
(1) denied one plaintiff medical treatment for a traumatic brain injury because it will
not allow him to travel by car to receive it, ROA.2408, 2662-63, 2674-76, 2978-79, 3005-07;
4
The Navy contends that the injunction “compelled it to send one respondent to Hawaii
for duty on a submarine against its military judgment.” Appl. 2. This is inaccurate for sev-
eral reasons: (1) That respondent, Navy Diver 2, who just arrived in Hawaii on March 9,
already had orders from the Navy to report to Hawaii for duty before asserting his religious
beliefs; (2) Navy Diver 2’s orders do not attach him to a submarine; and (3) Navy Diver 2’s
master diver in Hawaii informed him that he would not be attached to a submarine or de-
ployed while unvaccinated. Resp.App. 2a-3a. In January, Respondents filed a motion alleg-
ing that the Navy violated the preliminary injunction by preventing Navy Diver 2 from
executing his orders to report to Hawaii for permanent duty, thereby keeping him for sev-
eral months in a location where he could not do his job and was only supposed to be for a
few weeks. ROA.2679. The Navy disagrees. But the district court has yet to rule on this
motion.
3
(2) demands that a former SEAL Team Six member, decorated officer, and 25-year
veteran on the cusp of medical retirement comply with the vaccination mandate despite his
sincere religious beliefs, ROA.1201-04, 2196, 2977, Resp.App.10a-11a;
(3) denied some plaintiffs training to obtain or maintain highly specialized qualifica-
tions, even though those qualifications are needed and enhance safety, ROA.2685-86, 2694-
95, 3012-14, 3049-50; Resp.App.5a-6a, 12a;
(4) punished other plaintiffs by forcing them to pick up trash, pull weeds, take out the
Chief’s trash, and pick lint out of Velcro, see ROA.2687, 3010; Resp.App.2a; see also
ROA.2993-94, 2999, 3042 (explaining that these actions are punitive).
Irrationally, the Navy continues to rely on other plaintiffs in their normal capacities
despite their vaccination status, see, e.g., Resp.App.6a; ROA.3045, 3049, and even assigned
one plaintiff to take the temperatures of those entering base facilities, Resp.App.2a, and
others to escort retired servicemembers, ROA.3041. Meanwhile, the world continues to rec-
ognize that the threat of COVID-19 is waning, 5 as the Navy’s own policies acknowledge. In
5
As one prominent example of this recognition, “[d]ue to substantial changes in the
scope and severity of the pandemic as well as the guidance of public-health authorities,
United has announced that all employees who were placed on temporary unpaid leave as an
accommodation will be returned to their previous jobs.” Motion to Vacate Panel Opinion
and Dismiss Appeal as Moot 1, Sambrano v. United Airlines, No. 21-11159 (5th Cir. Mar.
10, 2022). “This change in policy is the result of materially reduced rates of COVID-19 inci-
dence, high levels of vaccination, and the reduced severity of the Omicron variant (which is
much less likely to result in hospitalization or death than earlier variants).” Id. at 3.
United’s decision reinstates 2,200 employees (out of 67,000) who had accommodations
to the vaccine requirement. See David Shepardson, “United Airlines to let unvaccinated
4
short, the Navy cannot show that it is suffering irreparable harm because it may not take
adverse action against the thirty-five plaintiffs due to their religious accommodation re-
quests. DoD policy does not permit that anyway. See Part II.A infra. On the other hand,
the preliminary injunction is needed to protect plaintiffs’ rights from further violation.
Intervention in this posture is also unwarranted because the district court is still con-
sidering the effect of the injunction. See Statement Part III infra. Thus, this Court’s inter-
vention may be unnecessary, depending on the lower courts’ resolution of the motion. See
Sup. Ct. R. 23.3 (“An application for a stay shall set out with particularity why the relief
sought is not available from any other court or judge.”) 6
The application should be denied.
employees return to jobs March 28- memo,” Reuters (Mar. 10, 2022), https://www.reu-
ters.com/business/aerospace-defense/united-airlines-let-unvaccinated-employees-return-
jobs-march-28-memo-2022-03-10/.
Further, “the CDC said last week that 93% of the U.S. population is in a location where
COVID levels are low enough that people do not need to wear masks.” David Shepardson,
“U.S. to extend airplane, transit mask mandate through April 18,” Reuters (Mar. 10, 2022),
https://www.reuters.com/world/us/us-extend-airplane-transit-mask-mandate-through-
april-18-official-2022-03-10/. “The administration is also considering lifting requirements
that international visitors get a negative COVID-19 test within a day of travel, officials said,
as many countries have dropped testing requirements.” Id.
6
This Court has denied stays where the litigation is proceeding quickly. “Respect for
the assessment of the Court of Appeals is especially warranted when that court is proceed-
ing to adjudication on the merits with due expedition.” Doe v. Gonzales, 546 U.S. 1301, 1308
(2005) (Ginsburg, J., in chambers). The Navy’s opening brief in the Fifth Circuit is due on
March 28, 2022, and the Navy has not requested that the Fifth Circuit expedite the appeal.
Preliminary injunction appeals in the Fifth Circuit receive calendaring priority and prefer-
ence in processing and disposition. Fifth Cir. R. 47.7. Proceedings in the district court also
continue. App.14a at n.7. Thus, the case is proceeding with all “due expedition,” Doe, 546
U.S. at 1308, and the Navy does not argue otherwise. In fact, it waited weeks to request a
stay from the district court. Compare App.56a with ROA.2545-48.
5
STATEMENT OF THE CASE
I. Factual Background
Plaintiffs are U.S. Navy SEALs, Special Warfare Combatant Craft Crewmen
(SWCCs), an Explosive Ordnance Disposal Technician (EOD), and Divers who object to
receiving a COVID-19 vaccination based on their sincerely held religious beliefs. ROA.32-
33. Plaintiffs are each assigned to NSW Command units. ROA.34. Many plaintiffs are as-
signed to training commands; others are assigned to SEAL Teams. See ROA.2740,
Resp.App.6a. Except for a few SEALs in a certain group (which no plaintiff is in), SEALs
are not deployed with short notice. Resp.App.7a, 11a-12a; ROA.2740-41. 7 Their commands
operate on a predictable, cyclical basis. Resp.App.7a, 11a-12a; ROA.2741. That allows each
SEAL Team to obtain training and qualifications required for specific missions, which is
facilitated by the training commands. Id. Many plaintiffs hold highly specialized qualifica-
tions that enable them to perform their special operations missions and train other SEALs.
ROA.39; see Resp.App.12a. Plaintiffs’ sincerely held religious beliefs forbid them from re-
ceiving the COVID-19 vaccine for various reasons rooted in their Christian faith. ROA.40-
42, 1124-1275, 2396-97. Plaintiffs have each requested accommodation of their religious be-
liefs against COVID-19 vaccination from the Navy. ROA.47.
Thus, none of the plaintiffs would be deployed with short notice on a mission like
7
rescuing Captain Phillips from Somali pirates, see Appl. 4. The declarations of SEAL 16
and SEAL 18 (who was once a member of the Naval Special Warfare Development Group
(DEVGRU)/SEAL Team Six, see ROA.2977) reproduced in the appendix, provide more ex-
planation. See Resp.App.4a-15a.
6
A. The Navy’s vaccination policies
On July 29, 2021, in addition to announcing vaccination mandates for federal employees
and contractors, the President directed the Department of Defense (DoD) to require mili-
tary servicemembers to receive a COVID-19 vaccination. ROA.523-25. About a month later,
Secretary of Defense Lloyd Austin ordered DoD to vaccinate all active-duty and reserve
servicemembers. ROA.399-400. Six days later, Secretary of the Navy Carlos Del Toro di-
rected Navy active-duty and reserve personnel to become vaccinated within 90 and 120
days, respectively. ROA.402-03. Secretary Del Toro’s order “exempted from mandatory
vaccination” service members “actively participating in COVID-19 clinical trials[,]” even
those receiving a placebo. ROA.403. His order warned that “failure to comply is punishable
as a violation of a lawful order” and “may result in punitive or adverse administrative action
or both.” Id. It also authorized the Chief of Naval Operations and Commandant of the Ma-
rine Corps “to exercise the full range of administrative and disciplinary actions to hold non-
exempt Service Members appropriately accountable.” Id. Such actions “include, but [are]
not limited to, removal of qualification for advancement, promotions, reenlistment, or con-
tinuation, consistent with existing regulations, or otherwise considering vaccination status
in personnel actions as appropriate.” Id.
In October 2021, the Chief of Naval Operations issued Navy Administrative Message
(NAVADMIN) 225/21, which threatens religious objectors not only with the loss of their
careers, but also with potentially crippling debt. App.81a-85a. NAVADMIN 225/21 states
that “Navy service members refusing the COVID-19 vaccination, absent a pending or ap-
proved exemption, shall be processed for administrative separation.” App.81a. It also pro-
vides that the Navy “may seek recoupment of applicable bonuses, special and incentive
7
pays, and the cost of training and education for service members refusing the vaccine.”
App.82a. Because of plaintiffs’ extensive training, this means that the Navy could force each
of them to pay back over $1 million. ROA.39. NAVADMIN 225/21 also authorizes tempo-
rary reassignment of “Navy service members who refuse the COVID-19 vaccine, regard-
less of exemption status, based on operational readiness or mission requirements.” App.83a.
It also mandates that “[c]ommands shall not allow those refusing the vaccine to promote/ad-
vance, reenlist, or execute orders, with the exception of separation orders, until the CCDA
has completed disposition of their case.” App.84a.
In November 2021, the Navy issued NAVADMIN 256/21, App.86a-94a, which states
that “Navy service members whose COVID-19 vaccination exemption request is denied are
required to receive the COVID-19 vaccine . . . within 5 days of being notified of the denial.”
App.88a. It also authorizes adverse performance evaluations, denial of promotion or ad-
vancement, loss and required repayment of Navy-funded education, and possible loss of
eligibility for some VA benefits such as the GI Bill, including the transfer of GI Bill benefits
to dependents. App.90a-94a.
In recent months, the Navy relaxed COVID-related requirements but continues to en-
force its vaccine mandate. In December 2021, the Department of Defense issued new guid-
ance permitting DoD contractors to show a negative COVID test for access to DoD facilities
instead of vaccination, and not requiring vaccination for members of the public accessing
DoD facilities. Resp.App. 20a-22a. Many plaintiffs work regularly with contractors. In Jan-
uary 2022, the Navy issued NAVADMIN 07/22, which recognizes that COVID-19 will still
be an issue despite nearly universal vaccination. ROA.2733-38. It permits individuals at high
8
risk for COVID-19 complications to be deployed. ROA.2736. It also instructs against retest-
ing servicemembers on a ship after quarantine for COVID because they will likely still test
positive, accepting that COVID-positive individuals will mingle with others. ROA.2735. In
January 2022, the Navy admitted that over 99% of servicemembers are vaccinated, and that
the Omicron variant has had “really no operational impact.” 8 In March 2022, DoD removed
masking requirements for all DoD personnel and visitors in counties with medium or low
COVID-19 community levels. Resp.App.48a-49a.
B. The Navy’s discriminatory actions
On their face, the Navy’s policies feign compliance with RFRA, as they require indi-
vidualized assessment of religious accommodation requests and place the burden on the
military to demonstrate a compelling justification for denials. See ROA.420-38, 440-48, 450-
66, 468-71. But as to the vaccine mandate, the district court found that the individualized
assessments and compelling interest demonstration the policies require are a farce. The
Navy uses a six-phase, fifty-step procedure to process religious accommodation requests.
Resp.App.51a-84a. The process begins, however, by instructing an administrator to use a
prepared disapproval template containing the same rationale, despite the differing circum-
stances of each servicemember submitting a request. Resp.App.58a, 73a. Each of the plain-
tiffs received virtually identical denials, and their denials are nearly identical to non-NSW
servicemembers. See, e.g., Resp.App.202a-211a. The Navy denied SEAL 2 and SEAL 3’s
8
ROA.2396, 2729; see also App.21a; Diana Stancy Correll, “Omicron isn’t significantly
impacting Navy operations, admiral says,” Navy Times (Jan. 27, 2022), https://www.na-
vytimes.com/news/your-navy/2022/01/27/omicron-isnt-significantly-impacting-navy-opera-
tions-admiral-says/ [https://perma.cc/77R3-WEUC].
9
requests despite their commanding officer, who is in charge of all SEAL training on the
East and West coasts, recommending approval. ROA.3285-86, 3346-47. As that officer
stated:
[T]he training environment [of the command] often requires close quarters con-
tact for prolonged periods of time, however, successful mitigation measures have
been implemented since the onset of COVID-19 to ensure the safety of the staff
and students . . . The cumulative impact of repeated accommodations of religious
practices of a similar nature would mean my command is still able to safely ac-
complish its mission and protect the health and safety of its members.
App.10a. The Navy applies the same purported “least restrictive means” analysis to each
accommodation request, and it relies on outdated COVID-19 data from over six months ago,
despite the dramatic changes in the virus, including its known transmissibility by vac-
cinated people. The Navy refuses to reconsider requests for accommodation based on
changed circumstances. Resp.App.151a-196a. The Navy has also displayed “outright hos-
til[ity]” to plaintiffs’ beliefs. App.26a; see also, e.g., App.8a-9a, 12a. To date, the Navy has
not granted a single exemption to an active-duty or active reserve servicemember for the
COVID-19 vaccination, or at all in the last seven years. 9 By contrast, the Navy has granted
9
The Navy claims that it very recently granted one religious exemption to a member
of the inactive reserve. See Appl. 9 n.2. But it does not appear that the mandate even applies
to inactive servicemembers. See ROA.399 (“all members of the Armed Forces under DoD
authority on active duty or Ready Reserve”); App.82a (Navy vaccine mandate applies to
“Active-duty service members and service members in the Selected Reserve only[,]” not
Individual (inactive) Ready Reserve.) The Navy states elsewhere that this was only a “con-
ditional approval” which means that “the individual is not required to be vaccinated while
in the IRR, but must be fully vaccinated as defined in NAVADMIN 190/21 prior to return-
ing to service.” See U.S. Navy COVID-19 Updates, Mar. 9, 2022, https://www.navy.mil/US-
Navy-COVID-19-Updates/ [https://perma.cc/5XB9-DYJ5].
10
exemptions to COVID-19 vaccination for secular reasons: twelve permanent medical ex-
emptions, thirty-one administrative exemptions, and hundreds of temporary medical ex-
emptions, including exemptions to members of the NSW community. 10
Even if it were possible for plaintiffs to receive a religious exemption, Article 15-
105(4)(n)(9) of the Manual of the Navy Medical Department (MANMED) states that special
operations personnel, which includes plaintiffs, “refusing to receive recommended vaccines
. . . based solely on personal or religious beliefs are disqualified. This provision does not
pertain to medical contraindications or allergies to vaccine administration.” App.77a. Tri-
dent Order #12 was issued in September 2021 and repeats the MANMED automatic dis-
qualification for personal or religious objections. App.79a-80a. This means that even if a
SEAL or other special warfare operator receives a religious exemption to a vaccine require-
ment, that servicemember is automatically disqualified from special operations duty (i.e.,
made non-deployable), which means the loss of special duty pays and the potential loss of
the member’s special warfare device pin. (SEALs wear the famous “Trident.”) The district
court reserved judgment on whether these policies are neutral between religious and secu-
lar exemptions until the merits stage. App.62a-63a.
C. Harm to plaintiffs
Even if the Navy’s religious accommodation process were not a farce with a predeter-
mined outcome, it has provided plaintiffs no relief. Each plaintiff submitted an accommoda-
tion request, some as early as August 2021, but none have been approved. ROA.2397, 2856.
10
U.S. Navy COVID-19 Updates, supra n.6 (as of March 9, 2022); see also App.20a.
11
Even submission of an accommodation request resulted in coercive and punitive action
against plaintiffs. See ROA.1131-32, 1136, 1144-45, 1158-59, 1173, 1176, 1181, 1185, 1189-90,
1199, 1202-04, 1208, 1215-16, 1224-25, 1232, 1237, 1242, 1255, 1260, 1263, 2146, 2175, 2181,
2184, 2190, 2193, 2196, 2199, 2205-06, 2209, 2217-18, 2221, 2224, 2228, 2239, 2242, 2247-48,
2254-55, 2674-75, 2678-80, 2685-87, 2694-95, 2697-98, 2700-01, 3005-07, 3009-10, 3012-14,
3037-38, 3040-42, 3044-45, 3048-50; App.8a-9a, 45a, 53a-54a.
II. Procedural History
Plaintiffs sued on November 9, 2021, asserting claims under the Free Exercise Clause,
RFRA, and other provisions of federal law. ROA.32-80. Plaintiffs moved for a preliminary
injunction based on their religious liberty claims on November 24. ROA.201-46. The district
court held a preliminary injunction hearing on December 20, ROA.25, and three plaintiffs
testified. See App.9a-12a (summarizing testimony). The Navy offered no witnesses. The dis-
trict court granted the preliminary injunction on January 3, 2022. App.56a. The preliminary
injunction order enjoined the Navy “from applying MANMED § 15-105([4])(n)(9); NAVAD-
MIN 225/21; Trident Order #12; and NAVADMIN 256/21 to plaintiffs. Defendants are also
enjoined from taking any adverse action against Plaintiffs on the basis of Plaintiffs’ requests
for religious accommodation.” Id.
The Navy filed a notice of interlocutory appeal on January 21 and filed a motion for
partial stay of the injunction pending appeal in the district court on January 24. ROA.2508-
09, 2545-47. 11 Plaintiffs filed a motion for order to show cause as to why the Navy should
The Navy requested only a “partial stay” because it conceded that it would not court
11
martial or separate plaintiffs pending the litigation.
12
not be held in contempt for violating the preliminary injunction on January 31. ROA.2650-
69. That motion is fully briefed as of February 13. ROA.2974-86. The district court denied
the Navy’s motion for partial stay on February 13. App.66a.
The Navy filed a motion for partial stay pending appeal on February 16, and the Fifth
Circuit denied the motion on February 28. App.1a. The Fifth Circuit rejected the Navy’s
argument that the preliminary injunction interfered with their “deployment, assignment,
and other operational decisions.” App.27a. It noted that “the district court clarified that the
preliminary injunction ‘simply prohibits adverse action against Plaintiffs based on their re-
quests for religious accommodation.’ Defendants therefore remain able to make decisions
based on other neutral factors.” App.27a-28a.
III. The Preliminary Injunction
The Navy heavily emphasizes its claim that the preliminary injunction “usurps the
Navy’s authority to decide which servicemembers should be deployed to execute some of
the military’s most sensitive and dangerous missions.” Appl. 1. But that is not true. Neither
plaintiffs, the district court, nor the court of appeals have ever contended that the Navy is
compelled by the preliminary injunction to deploy any of the thirty-five plaintiffs.
The Navy moved the district court to stay the preliminary injunction “to the extent the
order precludes Defendants from making the assignment and reassignment decisions that
the military deems appropriate, taking into account Plaintiffs’ vaccination status, including
with respect to deployment and training.” App.13a. The district court denied the motion to
stay, but it acknowledged that it “cannot[]require the Navy to place a particular SEAL in a
particular training program. But it can—and must—prevent the Navy from taking punitive
13
action against that SEAL by blocking him from the training program he would otherwise
attend.” App.60a (emphasis added). The district court stated:
This Court has not required Defendants to make any particular personnel assign-
ments. All strategic decisions remain in the hands of the Navy. Rather, the pre-
liminary injunction simply prohibits adverse action against Plaintiffs based on
their requests for religious accommodation.
App.60a. While clarifying that plaintiffs did not have license to “defy mitigation measures
under the guise of following” the preliminary injunction order, the district court reiterated
that “[t]he preliminary injunction is limited in scope. It enjoined the Defendants from ap-
plying the vaccine mandate to the thirty-five Plaintiffs here and prohibited adverse action
on the basis of their religious accommodation requests.” App.65a. The district court also
reiterated that the preliminary injunction preserves the status quo by prohibiting adverse
actions like deprivations of pay, training, and medical treatment: “[P]reserving the status
quo means maintaining the preliminary injunction—in other words, preventing Plaintiffs
from being deprived of pay, training, medical treatment, travel opportunities, and more.”
App.66a. The district court had no need to stay the injunction’s application to deployment
decisions if the injunction does not apply to them.
The Navy asked the Fifth Circuit to stay the preliminary injunction pending appeal
“insofar as it precludes the Navy from considering plaintiffs’ vaccination status in making
deployment, assignment, and other operational decisions.” App.2a. The Fifth Circuit also
declined to issue such a stay because it had a similar understanding of the scope of the
injunction. In response to the Navy’s argument about deployment, the Fifth Circuit noted:
[T]he district court clarified that the preliminary injunction “simply prohibits ad-
verse action against Plaintiffs based on their requests for religious accommoda-
tion.” Defendants therefore remain able to make decisions based on other neutral
factors.
14
App.27a-28a. Thus, neither the district court nor the court of appeals stated that the pre-
liminary injunction requires the Navy to deploy plaintiffs.
Because of the district court’s admonition that the preliminary injunction prevents the
Navy from depriving plaintiffs of “pay” or taking “adverse action” because of their accom-
modation requests, the Navy may not classify plaintiffs as non-deployable and thus remove
them from special operations duty because of their religious accommodation request under
the preliminary injunction. As the Fifth Circuit said, “[t]he Navy may permissibly classify
any number of Plaintiffs as deployable or non-deployable for a wide variety of reasons. But
if the Navy’s plan is to ignore RFRA’s protections, as it seems to be on the record before
us, courts must intervene . . . .” App.21a. Critically, however, classifying plaintiffs as “de-
ployable” while the lawsuit proceeds (to ensure they will continue to receive special opera-
tions pay, which plaintiffs’ families depend on) does not mean the Navy must actually deploy
any of the plaintiffs, and therefore does not “usurp[] the Navy’s authority to decide which
servicemembers should be deployed.” Appl. 1. And given that NSW members may be de-
ployed or not deployed for many reasons, and that it is unclear that deployment is a benefit,
choosing not to deploy a particular plaintiff would not constitute “adverse action” under the
injunction. App.56a, 65a.
While it is clear that the injunction does not require the Navy to deploy plaintiffs, the
district court is still considering the full effect of the injunction on other decisions. Plaintiffs
believe that the preliminary injunction prohibits the Navy from punishing plaintiffs or
denying plaintiffs promotions and the ability to carry out orders given before plaintiffs sub-
mitted their religious accommodation requests, and the Navy disagrees. App.57a-58a. But
15
the district court has yet to say whether it agrees with plaintiffs on anything except train-
ing, medical treatment, travel, and pay, see App.60a, 66a, and has yet to rule on the plain-
tiffs’ motion for order to show cause. 12 As a result, the court of appeals has not passed on
these questions either. Thus, this Court’s intervention at this stage may be unnecessary,
depending on the lower courts’ resolution of the motion. See Sup. Ct. R. 23.3 (“An applica-
tion for a stay shall set out with particularity why the relief sought is not available from any
other court or judge.”)
ARGUMENT
A stay pending appeal is an “extraordinary” remedy. Williams v. Zbaraz, 442 U.S.
1309, 1311 (1979) (Stevens, J., in chambers); see also Ruckelshaus v. Monsanto Co., 463
U.S. 1315, 1316 (1983) (Blackmun, J., in chambers). “A stay is an intrusion into the ordinary
processes of administration and judicial review, and accordingly is not a matter of right,
even if irreparable injury might otherwise result to the appellant.” Nken v. Holder, 556 U.S.
418, 427 (2009) (citation omitted). The applicant bears the “especially heavy” burden of
proving that such relief is warranted. Packwood v. Senate Select Comm. on Ethics, 510 U.S.
1319, 1320 (1994) (Rehnquist, C. J., in chambers). To obtain a stay of an order issued by a
lower court, “an applicant must show (1) a reasonable probability that four Justices will
consider the issue meritorious enough to grant certiorari; (2) a fair prospect that a majority
of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable
harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010).
There is also still a motion to dismiss and transfer venue pending in the district court.
12
App.14a at n.7.
16
The applicant must make a “strong showing” that it is likely to succeed on the merits. Nken,
556 U.S. at 426. “In close cases, the Circuit Justice, or the Court will balance the equities
and weigh the relative harms to the applicant and to the respondent.” Hollingsworth, 558
U.S. at 190. The Navy has not met its burden to justify the extraordinary relief of a stay of
the preliminary injunction.
I. The Navy Is Unlikely to Succeed on the Merits Because the Application of Its
Vaccine Mandate to Plaintiffs Violates RFRA.
This case does involve important questions. But the Court’s intervention at this stage
is unwarranted for procedural and prudential reasons. It is also unwarranted because the
Navy has not met its burden, as it cannot establish that it is likely to succeed on the merits,
and thus that the Court would grant certiorari. The Navy’s religious accommodation pro-
cess, which it used to deny plaintiffs’ religious accommodation requests, starts and ends
with a boilerplate denial. See Resp.App.51a-84a. The Navy’s stay application does not even
acknowledge (or dispute) the district court’s factual findings or the court of appeals’ analy-
sis on this point. The Navy’s across-the-board, rubber-stamped denials do not comport with
the individualized analysis required under RFRA. The Navy now argues that its boilerplate
denials are justified as to the thirty-five plaintiffs because they are members of the NSW
community, but it recites only more generalized interests inapplicable to many, if not all, of
the plaintiffs. See Appl. 23-31. In any event, the Navy cannot show that it has a compelling
interest in forcing each of the thirty-five plaintiffs to violate their religious beliefs by ac-
cepting COVID vaccination. It also cannot show, given current circumstances, that vaccina-
tion is the least restrictive means of accomplishing its interest. Nor can the Navy show that
17
it is suffering irreparable harm due to the preliminary injunction, which only requires what
the DoD policies and those of other military branches require. See Part III infra.
A. The Navy’s religious accommodation process is a sham.
“RFRA did more than merely restore the balancing test used in the Sherbert line of
cases; it provided even broader protection for religious liberty than was available under
those decisions.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 n.3 (2014); accord
Holt v. Hobbs, 574 U.S. 352, 357 (2015) (RFRA “provide[s] greater protection for religious
exercise than is available under the First Amendment.”) Not only does RFRA require that
the Government must demonstrate a “compelling governmental interest” to justify a sub-
stantial burden on religious beliefs, it also requires that the Government use the “least re-
strictive means” available for doing so. 42 U.S.C. § 2000bb–1(b). “The least-restrictive-
means standard is exceptionally demanding . . . .” Hobby Lobby, 573 U.S. at 728.
Defendants expect to meet this “exceptionally demanding” test by merely quoting the
words “compelling interest” and “least restrictive means” in boilerplate denials, but the law
requires far more than the Government’s ipse dixit. “RFRA requires the Government to
demonstrate that the compelling interest test is satisfied through application of the chal-
lenged law ‘to the person’ —the particular claimant whose sincere exercise of religion is
being substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do Vege-
tal, 546 U.S. 418, 430–31 (2006) (quoting 42 U.S.C. § 2000bb-1); Hobby Lobby, 573 U.S. at
726. As the Fifth Circuit said, Defendants’ “institutional interests” here are “nevertheless
insufficient under RFRA. The Navy must instead ‘scrutinize[] the asserted harm of grant-
ing specific exemptions to particular religious claimants.’” App.24a. “RFRA ‘demands much
18
more[]’ than deferring to ‘officials’ mere say-so that they could not accommodate [a plain-
tiff’s religious accommodation] request.’” Id. at 25a (quoting Holt, 574 U.S. at 369.)
The Navy uses a form denial letter produced by a six-phase, fifty-step process that
begins with a prepared disapproval template. Resp.App.58a, 67a. This form denial, which
appears to be used in adjudicating all requests, see Resp.App.202a-211a, vaguely states that
the military has a compelling interest in military readiness, unit cohesion, good order and
discipline, and health and safety, on both unit and individual levels. Id. Nowhere in the
denial letters does the Navy explain with any degree of specificity why it has a compelling
interest in denying a particular accommodation request. Instead, it relies on a categorical
denial through conclusory assertions unsupported by specific evidence. See App.26a (“[I]n
none of the letters denying religious accommodations to these Plaintiffs has the Navy ar-
ticulated Plaintiff-specific reasons for its decisions.”) As the district court concluded, this
process more closely resembles “theater” than the case-by-case rigorous analysis de-
manded by RFRA. App.31a. The evidence plaintiffs have been able to obtain so far, even
without the benefit of discovery, confirms the woefully inadequate process the Navy is using
to deny servicemembers’ religious liberty:
First, as the Fifth Circuit explained, “[f]urther evidencing that there is a pattern of
disregard for RFRA rights rather than individualized consideration of Plaintiffs’ requests,
the Navy admits it has not granted a single religious accommodation.” App.26a-27a.
Second, the Navy’s denial letters, even outside the NSW community, appear to be
nearly identical. Resp.App.202a-211a. According to the Navy’s evaluation, then, there is
19
nothing particular about NSW that requires a different outcome. The same is true of reli-
gious accommodation appeals. Resp.App.200a-201a.
Third, and relatedly, the Navy appears to use the same “least restrictive means” anal-
ysis for every servicemember. Resp.App. 86a, 95a-145a. As the court of appeals noted,
“surely, had the Navy been conscientiously adhering to RFRA, it could have adopted least
restrictive means to accommodate religious objections against forced vaccinations, for in-
stance, to benefit personnel working from desks, warehouses, or remote locations.”
App.27a. Contrary to the depiction of SEALs in Hollywood movies, plaintiffs are not jump-
ing out of helicopters into warzones every day.
Fourth, the Navy’s analysis for each RA request is simplistic, rote, and involves the
same boilerplate. Resp.App.202a-211a. In response to a Navy officer’s Freedom of Infor-
mation Act request for “[a]ll responsive records reviewed by the Deputy Chief of Naval
Operations . . . in adjudicating” his religious accommodation request, the Navy produced
one line of a spreadsheet as its “entire[]” response. Resp.App.87a, 147a-150a.
Fifth, as even more evidence that the Navy is not considering individual circumstances
or whether vaccination is the least restrictive means available, the Navy refuses to consider
changed circumstances in reevaluating requests submitted several months ago, such as the
job and location of the requestor, newly acquired natural immunity, and a different variant
of COVID-19 which has caused widespread infection in vaccinated personnel.
Resp.App.151a-196a. Instead, it continues to rely on outdated information about the virus,
even though other agencies have revised health guidelines many times since last fall.
Resp.App. 106a-145a.
20
As the district court determined based on the record, the Navy’s religious accommo-
dation process “by all accounts … is theater” and the Navy “merely rubber stamps each
denial.” App.31a. The Navy does not dispute this factual finding in its stay application. All
it offers is an argument that despite the evidence, the Court should take the Navy’s word
for it that it is doing an individualized assessment that complies with the law. Appl. 32 n.8.
But the record so far does not show that they Navy satisfies its high burden under RFRA,
which means the Navy is unlikely to succeed on the merits.
B. The Navy lacks a compelling interest in forcing plaintiffs to
receive a COVID-19 vaccination despite their sincere religious beliefs.
1. Even assuming the Navy’s religious accommodation process were not a sham, the
Navy is still unlikely to succeed because it fails to show that it has a compelling reason to
apply its mandate to plaintiffs, as RFRA requires. “Rather than rely on ‘broadly formu-
lated interests,’ courts must ‘scrutinize[ ] the asserted harm of granting specific exemptions
to particular religious claimants.’” Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1881
(2021) (quoting Gonzales, 546 U.S. at 431). “In other words, Defendants must provide more
than a broadly formulated interest in ‘national security.’ They must articulate a compelling
interest in vaccinating the thirty-five religious servicemembers currently before the
Court.” App.49a. It strains credulity to assert that plaintiffs’ non-vaccination—or even the
non-vaccination of the other individuals who submitted RA requests, which amounts to 0.6%
of all Navy servicemembers—will make or break the Navy’s or NSW’s ability to operate or
to combat the virus. Navy servicemembers do not live in a hermetically sealed environment
and interact with their own families and the public while on shore duty and before embark-
ing on a fleet vessel. As the district court pointed out, because of nearly universal military
21
vaccination, “vaccinated servicemembers are far more likely to encounter other unvac-
cinated individuals off-base among the general public than among their ranks.” App.64a.
The Navy contends that accommodating plaintiffs cannot be “cabined to these 35 respond-
ents . . . more than 4000 Navy servicemembers have requested religious exemptions.” Appl.
31. But as this Court held in Holt, “this argument is but another formulation of the ‘classic
rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to
make one for everybody, so no exceptions.’ We have rejected a similar argument in analo-
gous contexts, and we reject it again today.” 574 U.S. at 368 (citations omitted).
2. The Navy’s argument that plaintiffs threaten operations ignores extensive evi-
dence that shows the Navy—and plaintiffs in particular—continued operations successfully
regardless of plaintiffs’ vaccination status. Health, safety, and mission success are generally
compelling interests, but “past practice” shows that the Navy may ensure health, safety,
and mission success without vaccinating plaintiffs. See Dunn v. Smith, 141 S. Ct. 725, 725–
26 (2021) (Kagan, J., concurring in denial of application to vacate injunction). Throughout
the pandemic, multiple plaintiffs deployed overseas, both before and after the vaccine be-
came available, and their missions succeeded. ROA.2156, 2159, 2162, 2172, 2184, 2213, 2224,
2232, 2742-43. EOD 1 received a Joint Service Commendation Medal for his “flawless exe-
cution” in conducting 76 large-scale exercises over several months with partner forces in
South Korea during the early part of the pandemic, with successful COVID mitigation as
one of the noted achievements. Resp.App.197a-198a; App.11a, 26a. SWCC 4 completed his
entire 24-month deployment cycle during the worst of the COVID-19 pandemic before the
22
vaccine mandate. Resp.App.19a. He stood up a troop that deployed to the Middle East dur-
ing the early part of the pandemic and was highly successful. Resp.App.18a. Mitigation
measures prevented COVID from having an impact on their success. Id. This deployment
required extensive training (for over 12 months) which involved multiple inter-fleet opera-
tions and large-scale military exercises. Id. SWCC 4 also participated in a major multi-the-
ater deployment during the pandemic. Resp.App.19a. The mission was successful even
though a vaccine was not mandated and roughly 50% of the team was unvaccinated. Id.
Throughout the pandemic, plaintiffs trained other SEALs preparing for deployments, with
vaccination status being inconsequential to mission accomplishment. ROA.2149, 2153, 2162,
2165, 2169, 2178, 2187, 2205, 2213-14, 2227, 2242, 2247, 2993. There is, therefore, “no evi-
dence that the [plaintiffs] have contributed to the spread of COVID-19 . . . .” Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020). In contrast, some NSW training has
been compromised because of the removal of some plaintiffs. See ROA.2153, 2165, 2695.
And the dangers faced by plaintiffs during training and deployments are far greater than
the risk of COVID-19 in a young team in peak physical condition. Resp.App.8a-9a, 14a-15a.
The Navy and NSW are already equipped to deal with illnesses and injuries, which are
common in deployments. Resp.App.8a, 14a. And as explained above, only a select few
SEALs (and none of plaintiffs) are on “beeper status,” and because of the need for extensive
mission-specific training, other SEALs are not deployed at a moment’s notice. Resp.App.7a,
11a-12a.
23
Despite its concerns, the Navy points to zero examples during the last two years when
a plaintiffs’ vaccination status—or anyone’s, for that matter—compromised an NSW mis-
sion, though it claims that plaintiffs’ vaccination is critical to NSW mission success. Thus,
“that record suggests that [the Navy] could satisfy its . . . concerns through a means less
restrictive . . . .” Dunn, 141 S. Ct. at 726. SEALs and other members of NSW are not all the
same—personal characteristics, skills, and qualifications are no doubt routinely considered
when assigning members to particular tasks, roles, missions, commands, or deployments.
If a plaintiff is unvaccinated in line with his sincere religious beliefs, the Navy has articu-
lated no reason why those decisions could not be made with that in mind, among other neu-
tral factors, as a less restrictive alternative. The Navy’s refusal to consider any alternative
except complete acquiescence is illustrated by their actions as to SEAL 18, a decorated
officer with twenty-five years of service, a former member of SEAL Team Six, and a vet-
eran of eleven combat deployments. Resp.App.10a-11a; ROA.2196, 2977. Despite being on
the cusp of medical retirement due to injuries (which also means he would not be deployed),
the Navy has insisted that he comply with the mandate despite his religious beliefs.
ROA.1201-04. His command also would not allow him to go to a rehab center for treatment
on temporary duty, as he previously was allowed to before the mandate, unless he has ap-
proved leave. ROA.2196. The Navy’s treatment of SEAL 18 shows its insistence on compli-
ance is divorced from any legitimate mission-based needs.
3. The Navy’s arguments are also underinclusive and based on outdated science. The
Navy claims all thirty-five plaintiffs must be vaccinated immediately or missions will be
24
compromised, yet the Navy has granted twelve permanent medical exemptions and hun-
dreds of temporary ones (including to NSW members). See U.S. Navy COVID-19 Updates,
supra n.9; App.7a. And testing is permitted as a substitute for vaccination for military con-
tractors, whom plaintiffs work with regularly, but not for plaintiffs. Resp.App.20a. Service-
members or contractors unvaccinated for secular reasons—whether temporarily so or
not—present the same risk as plaintiffs who are unvaccinated for religious reasons. 13
In denying plaintiffs’ religious accommodation requests, the Navy also relied on
COVID-19 data collected before September 2021. We now know that vaccination does not
prevent spread, so vaccination status is not a proxy for whether someone is infected. The
Navy’s current policies recognize that contending with COVID-19 is necessary even with
100% vaccination. See ROA.2734-38. The Navy’s claim that the mandate is justified because
unvaccinated individuals are more likely than vaccinated individuals generally to suffer se-
rious cases is severely undermined by Navy policy explicitly permitting deployment of vac-
13
For First Amendment purposes, a law is not neutral and generally applicable if it
treats “any comparable secular activity more favorably than religious exercise.” Tandon v.
Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam); see also Fulton, 141 S. Ct. at 1877;
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 542–46 (1993). And “[a] law
is not generally applicable if it invites the government to consider the particular reasons for
a person’s conduct by providing a mechanism for individualized exemptions.” Fulton, 141
S. Ct. at 1877 (cleaned up). “[T]his and other forms of underinclusiveness mean[] that the
ordinances were not generally applicable.” Id. Thus, even if plaintiffs had no RFRA claim,
strict scrutiny would still apply under the Free Exercise clause, and the Navy’s mandate
fails that scrutiny for the same reasons it cannot satisfy RFRA. Id.
The district court, however, noted that it was not relying on plaintiffs’ First Amend-
ment claims for the preliminary injunction, and the court of appeals did not address them.
App.63a; 13a at n.6. Plaintiffs therefore believe it is unnecessary to address their First
Amendment claims in greater detail here.
25
cinated individuals at recognized high risk for COVID complications. ROA.2736. Re-
striction of movement before NSW deployments to prevent illness will be required regard-
less of unvaccinated operators. Resp.App.13a-14a. Even if there is a COVID-19 outbreak
on a ship at sea, operations will continue. ROA.2734-38.
The Navy does not even require servicemembers on a ship who test positive to be re-
tested after quarantine, as they will likely continue to test positive for 90 days. ROA.2735.
The Navy will therefore accept COVID-positive individuals mingling with other service-
members on a ship but deem COVID-negative plaintiffs an intolerable risk. That is irra-
tional, especially since COVID outbreaks are occurring on ships that are 100% vaccinated
with no operational impact, ROA.2729. It is also underinclusive. And underinclusiveness
undercuts the idea that denying an accommodation is the least restrictive means of accom-
plishing a compelling interest. See Holt, 574 U.S. at 368 (“‘[t]he proffered objectives are not
pursued with respect to analogous nonreligious conduct,’ which suggests that ‘those inter-
ests could be achieved by narrower ordinances that burdened religion to a far lesser de-
gree.’” (quoting Lukumi, 508 U.S. at 546). It does not require military expertise to recog-
nize that the Navy’s claims do not align with current reality. “And without a degree of def-
erence that is tantamount to unquestioning acceptance,” it is hard not to conclude that the
Navy fails to meet its exacting burden under RFRA to justify forcing plaintiffs to comply
with its vaccine mandate. Holt, 574 U.S. at 364.
II. The Preliminary Injunction Is Appropriate Equitable Relief.
As the district court reiterated when it denied a stay, the preliminary injunction merely
preserves the status quo by protecting plaintiffs from being discriminated against because
they requested religious accommodation. App.66a. The Navy insists that this Court must
26
now intervene to allow it to change the status quo and take actions against plaintiffs because
of their religious accommodation requests. But permitting such blatant religious discrimi-
nation would turn RFRA—which applies to the military—on its head. Of course, RFRA
does not prohibit even blatant religious discrimination if the Government has a compelling
interest and no less restrictive means for accomplishing that interest. But the Navy does
not identify any specific, “to the person,” compelling reasons why it must be allowed to
reassign the thirty-five plaintiffs because of their religious accommodation request, who
were carrying out their jobs without incident before they requested accommodation. 42
U.S.C. § 2000bb-1(b). Nor has it explained a need for doing so that is so urgent that it war-
rants this Court’s immediate intervention despite the preliminary procedural posture of
this case. The Navy’s claim that the preliminary injunction dictates who it must deploy is
incorrect. See Statement Part III supra. And its belated argument that an injunction pre-
serving the status quo for these plaintiffs is not “appropriate relief” under RFRA or departs
from traditional principles of equity is both waived and wrong. No one disputes that the
military’s job, and the tasks of NSW, are important. But the importance of those missions
to protect the American people does not permit the military to abdicate its responsibility to
obey the law. Nor may the Navy avoid judicial scrutiny by packaging its preferences as
inviolable “military judgment.”
A. The preliminary injunction preserves the status quo.
1. The Navy calls the district court’s injunction “extraordinary.” Appl. 16. But the
preliminary injunction merely preserves the status quo by protecting plaintiffs from being
discriminated against because they requested religious accommodation. App.66a. “The
maintenance of the status quo is an important consideration in granting a stay.” Dayton
27
Bd. of Educ. v. Brinkman, 439 U.S. 1358, 1359 (1978) (Rehnquist, J., in chambers); see also
Houchins v. KQED, Inc., 429 U.S. 1341, 1346 (1977). Other district courts have followed
suit in issuing preliminary injunctions to protect the status quo for other servicemembers.
Those decisions also enjoin application of the vaccine mandate to the plaintiffs and prohibit
adverse action based on a request for religious accommodation. See Poffenbarger v. Ken-
dall, No. 3:22-CV-1, 2022 WL 594810, at *20–21 (S.D. Ohio Feb. 28, 2022); Navy Seal 1 v.
Austin, No. 8:21-CV-2429-SDM-TGW, 2022 WL 534459, at *20 (M.D. Fla. Feb. 18, 2022);
Air Force Officer v. Austin, No. 5:22-CV-00009-TES, 2022 WL 468799, at *13 (M.D. Ga.
Feb. 15, 2022). 14
Prohibiting adverse action against plaintiffs because of their religious accommodation
request is not extraordinary. It isn’t inconsistent with RFRA or the First Amendment,
which do not permit retaliation against individuals for requesting accommodation of their
religious beliefs. It isn’t even inconsistent with military guidance. DoD policy states that
“[a] Servicemember’s expression of [religious] beliefs may not, in so far as practicable, be
used as the basis of any adverse personnel action, discrimination, or denial of promotion,
schooling, training, or assignment.” ROA.423. Even more specifically, Army policy specifies
14
The Navy asserts that “other district courts have correctly declined to enjoin the
military’s COVID-19 vaccination requirement” and cites three cases. Appl. 16 at n.6. One of
these cases does not involve a RFRA or Free Exercise claim, see Robert v. Austin, No. 21-
cv-2228, 2022 WL 103374 (D. Colo. Jan. 11, 2022); and two of the decisions were based on
ripeness and not on the merits, see id.; Church v. Biden, No. 21-cv-2815, 2021 WL 5179215
(D.D.C. Nov. 8, 2021).
The Air Force has not requested a stay of the preliminary injunction in either Poffen-
barger or Air Force Officer.
28
that no “adverse action” is to be taken against any soldier with a pending religious accom-
modation request for the COVID-19 vaccination, and that while requests are pending,
“[s]oldiers with pending exemption requests will be considered compliant with the manda-
tory vaccination order . . . .” ROA.3024, 3038. The preliminary injunction here requires no
more than that. That the injunction merely upholds what the military requires by policy
undermines the Navy’s argument that treating servicemembers with religious accommoda-
tion requests as vaccinated or refraining from taking adverse action against those service-
members under the injunction will result in irreparable harm.
2. Because the preliminary injunction does not dictate deployment decisions as ex-
plained above, see Statement Part III supra., the Navy’s fear that it “trenches on core Ar-
ticle II prerogatives” is illusory. Appl. 3. In any event, the Executive exercised its “Article
II prerogatives” when President Clinton signed RFRA into law. It further exercised its
Article II powers by ensuring implementation and compliance through the promulgation of
DoD regs. See, e.g., ROA.423. The Navy’s argument for unquestioned military deference
also overlooks Article I prerogatives “[t]o make Rules for the Government and Regulation
of the land and naval forces,” U.S. Const. art. I § 8. Congress exercised that prerogative
when it enacted RFRA and included the military within its definition of “government.” See
42 U.S.C. § 2000bb-2(1). This partnership between both elected branches protects religious
freedom, even in the military. And through RFRA, both Congress and the President have
instructed federal courts to enforce its provisions. The preliminary injunction thus does not
improperly usurp Article II power.
29
The military also admits that RFRA applies to it. See, e.g., ROA.420-21; see also United
States v. Sterling, 75 M.J. 407, 410 (C.A.A.F. 2016) (RFRA “applies in the military context.”)
And RFRA makes no exceptions for “military judgment.” While in other contexts, “review
of military regulations challenged on First Amendment grounds is far more deferential
than constitutional review of similar laws or regulations designed for civilian society,” Gold-
man v. Weinberger, 475 U.S. 503, 507 (1986), Congress decided to change that deferential
review via RFRA to “provide very broad protection for religious liberty,” Hobby Lobby, 573
U.S. at 693. 15
B. Blind deference to the military is inconsistent with RFRA.
The Navy argues that the Court should not second-guess its judgment, but only one
case it cites even involves RFRA, see Appl. 19–21. All of the cited cases either pre-date
RFRA, see Dep’t of the Navy v. Egan, 484 U.S. 518 (1988); Chappell v. Wallace, 462 U.S.
296 (1983); Gilligan v. Morgan, 413 U.S. 1 (1973); Orloff v. Willoughby, 345 U.S. 83 (1953);
Reaves v. Ainsworth, 219 U.S. 296 (1911); Sebra v. Neville, 801 F.2d 1135 (9th Cir. 1986); or
do not involve RFRA claims, see Ziglar v. Abbasi, 137 S. Ct. 1843 (2017); Harkness v. Sec’y
of the Navy, 858 F.3d 437 (6th Cir. 2017); Antonellis v. United States, 723 F.3d 1328 (Fed.
Cir. 2013); Bryant v. Gates, 532 F.3d 888 (D.C. Cir. 2008). And the only case cited that does
involve a RFRA claim applied strict scrutiny to the military’s determinations, not a relaxed
or deferential standard. See Appl. 20 (citing United States v. Webster, 65 M.J. 936, 945, 946–
Before passing RFRA, Congress also responded directly to Goldman by passing a
15
law that required greater respect for religious liberty. See 10 U.S.C. § 774.
30
48 (Army Ct. Crim. App. 2008). 16 Thus, the Navy fails to point to any authority that applies
a deferential standard in the RFRA context. The preliminary injunction therefore does not
violate any applicable longstanding principle of deference to the military, as the Navy
claims. And “import[ing]” reasoning from other contexts despite RFRA’s “greater protec-
tion” would be “improper[].” Holt, 574 U.S. 361–62.
Despite RFRA’s clear application to the military, this Court has yet to apply it in that
context (which is a good reason why the Court should not get involved at this preliminary
and rushed stage, see Does 1-3 v. Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J., concurring in
the denial of application for injunctive relief)). But the Court has had the opportunity to
apply RFRA’s “sister statute,” the Religious Land Use and Institutionalized Persons Act
(RLUIPA), in the prison context. Holt, 574 U.S. at 356. That is instructive because prison
officials also assert interests in security and safety, courts recognize those officials’ exper-
tise, and this Court considered whether RLUIPA allowed for deference to those assertions.
Holt establishes that the Navy’s concept of military deference in the face of RFRA is mis-
taken.
Like deference to military judgment on operational needs, this Court has generally
acknowledged that “prison security is a compelling state interest, and that deference is due
16
In Webster, the court held that the Army satisfied RFRA’s exacting standard, noting
that the Army made “numerous allowances” for the military defendant, including by rea-
sonably accommodating his religious practices. 65 M.J. at 947. “The Army afforded him the
opportunity to request relief as a conscientious objector. The Army gave him the right to
request reasonable accommodation of his religious practices. Finally, although apparently
not required to do so by any regulation, appellant’s commander generously allowed appel-
lant to deploy with his unit in a non-combatant role. We conclude that the First Amendment
does not require anything more . . .” Id. (cleaned up).
31
to institutional officials’ expertise in this area.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13
(2005). But in Holt, this Court unanimously rejected the lower courts’ deference to prison
officials’ judgment that forbidding short beards was necessary for security, noting that
RLUIPA “does not permit such unquestioning deference.” 574 U.S. at 364. The Court ap-
plied a searching analysis of the prison officials’ proffered reasons for the beard restriction
and the denial of the prisoner’s accommodation request and ultimately rejected the prison
official’s arguments as insufficient to meet their burden. Id. at 364–69. The Court empha-
sized that applying less than RLUIPA’s demanding standard of scrutiny would shirk the
Court’s responsibility given by Congress:
RLUIPA, like RFRA, “makes clear that it is the obligation of the courts to con-
sider whether exceptions are required under the test set forth by Congress.” That
test requires the Department not merely to explain why it denied the exemption
but to prove that denying the exemption is the least restrictive means of further-
ing a compelling governmental interest. Prison officials are experts in running
prisons and evaluating the likely effects of altering prison rules, and courts should
respect that expertise. But that respect does not justify the abdication of the re-
sponsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And
without a degree of deference that is tantamount to unquestioning acceptance, it
is hard to swallow the argument that denying petitioner a ½–inch beard actually
furthers the Department’s interest in rooting out contraband.
Id. at 364 (emphasis added) (quoting Gonzales, 546 U.S. at 434).
It is hard to see how RFRA’s text could allow a different result in the military context.
It is also difficult to see how the Court’s reasoning in Holt would not equally apply here.
While the Court has acknowledged that “[s]temming the spread of COVID-19 is unques-
tionably a compelling interest,” Roman Cath. Diocese, 141 S. Ct. at 67, that is not the end
of the analysis, see Holt, 574 U.S. at 363–64. The Navy stresses Admiral Lescher’s assertion
(and that of other high-ranking officials) that vaccinating NSW members against COVID
32
is critical for mission success. Appl. 4. But the Court does not have to agree with his state-
ments in the face of evidence suggesting otherwise. See Part I.B supra. Adopting the
Navy’s concept of deference would therefore require the Court to both rewrite RFRA
(something only Congress may do) and create new constitutional doctrine. The emergency
docket presents neither the time nor place for blazing new legal trails. See Does 1-3, 142 S.
Ct. at 18 (Barrett, J., concurring in the denial of application for injunctive relief) (noting
difficulty of using “the emergency docket to force the Court to give a merits preview . . .
without the benefit of full briefing and oral argument”); Whole Woman’s Health v. Jackson,
141 S. Ct. 2494, 2496 (2021) (Roberts, C.J., dissenting) (noting the difficulty of resolving
novel questions on the emergency docket).
C. The preliminary injunction is appropriate equitable relief under RFRA.
To the extent that the Navy now argues that the preliminary injunction is not “appro-
priate relief” under RFRA, 42 U.S.C. § 2000bb-1(c), or inconsistent with “traditional prin-
ciples of equity jurisdiction,” Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund,
Inc., 527 U.S. 308, 319 (1999), see Appl. 3, that argument has never been raised before, so it
is waived. But even if not waived, it is meritless, and not only for the reasons above. What
is meant by the phrase “appropriate relief” in RFRA resembles relief available under 42
U.S.C. § 1983, which includes injunctive relief against government officials to preserve the
status quo. See Tanzin v. Tanvir, 141 S. Ct. 486, 490–92 (2020). And injunctive relief against
federal employees to preserve the status quo aligns with longstanding principles of equity.
“The ability to sue to enjoin unconstitutional actions by state and federal officers is the
creation of courts of equity, and reflects a long history of judicial review of illegal executive
33
action, tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320,
327 (2015).
III. The Navy Has Not Shown It Will Suffer Irreparable Harm Without a Stay and
the Balance of Equities Weighs in Plaintiffs’ Favor.
The Navy chafes at the fact that the lower courts did not blindly defer to their desire
to force the thirty-five plaintiffs to accept vaccination despite their sincerely held religious
beliefs. Respectfully, that does not mean that the Navy will suffer irreparable harm without
the Court’s intervention at this preliminary stage of the case. As discussed above, the pre-
liminary injunction does not require the Navy to deploy anyone. See Statement Part III
supra. And in prohibiting adverse action being taken against plaintiffs because of their re-
ligious accommodation requests, the injunction tracks what military policies require and
also preserves the status quo while this case is litigated, so it cannot be said that the Navy
is being harmed. See Part II.A supra. The evidence shows that plaintiffs and other unvac-
cinated servicemembers participated fully in the Navy’s missions throughout the COVID
pandemic, see Part I.B.2 supra, and the Navy points only to one non-NSW example from
the earliest days of the pandemic, when a more dangerous and virulent strain was circulat-
ing, and when zero servicemembers were vaccinated, to support its claim, see Appl. 26-27.
Elsewhere, the Navy merely asserts that “past good fortune is no guarantee of future suc-
cess.” Appl. 30. But as this Court has recognized, “simply showing some ‘possibility of ir-
reparable injury,’” in the context of a stay pending appeal, is insufficient. Nken, 556 U.S. at
434–35 (citation omitted). With 99% of the force vaccinated and the virus weakened, the
Navy cannot show that anything remotely like the U.S.S. Roosevelt’s serious outbreak is
likely to happen again. And the Navy may require genuine mitigation measures (as have
34
been successful in the past, even during large-scale foreign deployments in the middle of
the pandemic without a vaccine) if it determines that plaintiffs present an elevated risk to
anyone.
Plaintiffs, on the other hand, will certainly suffer irreparable injury if the Court grants
the partial stay. The Navy’s stay application does not dispute that plaintiffs’ religious beliefs
are substantially burdened by the vaccine mandate. If the Court stays the preliminary in-
junction, plaintiffs will be subject to the same hostile and discriminatory actions the Navy
took against them before the injunction was entered. And “[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.). Because plaintiffs “are irreparably
harmed by the loss of free exercise rights ‘for even minimal periods of time’; and the [Navy]
has not shown that ‘public health would be imperiled’ by employing less restrictive
measures,” plaintiffs “are entitled to [relief pending adjudication],” as the district court
granted, and as the court of appeals affirmed. Tandon, 141 S. Ct. at 1297 (quoting Roman
Cath. Diocese, 141 S. Ct. at 68.)
* * *
It is true that “[m]embers of this Court are not public health experts,” nor are they
military officers. Roman Cath. Diocese, 141 S. Ct. at 68. “But even in a pandemic, the Con-
stitution cannot be put away and forgotten.” Id. The preliminary injunction protects plain-
tiffs from the immediate effects of the Navy’s violation of their religious liberty, and this
Court should not deny plaintiffs that interim protection while this case proceeds.
35
CONCLUSION
The application for partial stay of the district court’s preliminary injunction should be
denied.
Respectfully submitted.
KELLY J. SHACKLEFORD HEATHER GEBELIN HACKER
JEFFREY C. MATEER Counsel of Record
HIRAM S. SASSER, III ANDREW B. STEPHENS
DAVID J. HACKER Hacker Stephens LLP
MICHAEL D. BERRY 108 Wild Basin Rd. South
JORDAN E. PRATT Suite 250
First Liberty Institute Austin, Texas 78746
2001 W. Plano Pkwy. (512) 399-3022
Suite 1600 heather@hackerstephens.com
Plano, Texas 75075
(972) 941-4444
Counsel for Respondents
MARCH 2022
36
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