Court filing
Appendix — U.S. Navy Seals 1-26 v. Biden, Fifth Circuit No. 22-10077 (opinion denying stay, Feb. 28, 2022)
Summary
An appendix whose table of contents lists a court of appeals opinion denying stay, district court orders on a preliminary injunction and denying a stay, a Secretary of Defense memorandum, Navy directives and declarations. The opening Fifth Circuit per curiam opinion, No. 22-10077, filed February 28, 2022, denies the defendants' motion for a partial stay of an injunction covering 35 Navy special warfare personnel who sought religious accommodations from COVID-19 vaccination requirements. The opinion states that the Navy has granted hundreds of medical exemptions but has not accommodated any religious objection to any vaccine in seven years. The text ends with a declaration executed December 10, 2021, by Tonya S. Rans, Colonel, Medical Corps, U.S. Air Force, Director, Immunization Healthcare Division.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Appendix — U.S. Navy Seals 1-26 v. Biden, Fifth Circuit No. 22-10077 (opinion denying stay, Feb. 28, 2022).”
Original at www.supremecourt.gov, No. 4:21-cv-01236-O, Doc. 66. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/scotus/undated-order-21a477-003-mar-07-2022-lower-court-ordersopinions-20220307123409049-u-s-navy-seals-stay-appx/
, SHA-256 d9dbeb1ce4da12338ad1a7f053c127abdc513e53ce98e4bcb9eac81413fa44d0.Full text
APPENDIX
Court of appeals opinion denying stay (Feb. 28, 2022)..........1a
District court order on preliminary injunction
(Jan. 3, 2022) .............................................31a
District court order denying stay (Feb. 13, 2022).............57a
Secretary of Defense memorandum on mandatory coronavirus
disease 2019 vaccination of Department of Defense
service members (Aug. 24, 2021) ............................67a
Excerpt of the Navy Manual of the Medical Department
(May 22, 2018) .............................................69a
Trident order # 12 -- mandatory vaccination for COVID-19
(Sept. 24, 2021) ...........................................79a
NAVADMIN 225/21 -- COVID-19 consolidated disposition
authority (CCDA) (Oct. 2021) ...............................81a
NAVADMIN 256/21 -- CCDA guidance to commanders
(Nov. 2021) ................................................86a
Supplemental declaration of Lanny F. Littlejohn
(Jan. 24, 2022) ............................................95a
Declaration of William K. Lescher (Jan. 19, 2022)............102a
Declaration of Lanny F. Littlejohn (Dec. 9, 2021)............121a
Declaration of Christopher D. Brown (Dec. 9, 2021)...........127a
Declaration of Mery-Angela Sanabria Katson
(Dec. 9, 2021) ............................................138a
Declaration of William Merz (Dec. 8, 2021)...................141a
Declaration of Tonya Rans (Dec. 10, 2021)....................164a
Case: 22-10077 Document: 00516220389 Page: 1 Date Filed: 02/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 28, 2022
No. 22-10077
Lyle W. Cayce
Clerk
U.S. Navy Seals 1-26; U.S. Navy Special Warfare
Combatant Craft Crewmen 1-5; U.S. Navy Explosive
Ordnance Disposal Technician 1; U.S. Navy Divers 1-3,
Plaintiffs—Appellees,
versus
Joseph R. Biden, Jr., in his official capacity as
President of the United States of America; Lloyd
Austin, Secretary, U.S. Department of Defense,
individually and in his official capacity as United
States Secretary of Defense; United States
Department of Defense; Carlos Del Toro, individually
and in his official capacity as United States Secretary
of the Navy,
Defendants—Appellants.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-1236
Before Jones, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:
The district court preliminarily enjoined the Department of Defense
(“DoD”), United States Secretary of Defense Lloyd Austin, and United
(1a)
Case: 22-10077 Document: 00516220389 Page: 2 Date Filed: 02/28/2022
No. 22-10077
2a
States Secretary of the Navy Carlos Del Toro from enforcing certain
COVID-19 vaccination requirements against 35 Navy special warfare
personnel and prohibited any adverse actions based on their religious
accommodation requests. 1 It later declined to stay the injunction.
Defendants now seek a partial stay pending appeal insofar as the injunction
precludes them from considering Plaintiffs’ vaccination statuses “in making
deployment, assignment and other operational decisions.” The Navy has
granted hundreds of medical exemptions from vaccination requirements,
allowing those service members to seek medical waivers and become
deployable. But it has not accommodated any religious objection to any
vaccine in seven years, preventing those seeking such accommodations from
even being considered for medical waivers. We DENY Defendants’ motion.
I. Background
A.
President Biden “direct[ed] the [DoD] to look into how and when
they [would] add COVID-19 vaccination to the list of required vaccinations
for members of the military.” Thereafter, the DoD and the Navy issued a
serious of orders and directives implementing mandatory COVID-19 vaccine
requirements.
Pertinent to this case, Secretary Del Toro issued “ALNAV 062/21,”
which ordered all “active duty Service Members . . . to be fully vaccinated
within 90 days” and “all Reserve Component Service Members . . . to be
fully vaccinated within 120 days.” Secretary Del Toro’s order “exempted
1
At least two other district courts have recently enjoined the same, or similar,
polices with respect to other service members. See Air Force Officer v. Austin, ___ F. Supp.
3d ____, No. 5:22-cv-00009-TES, 2022 WL 468799 (M.D. Ga. Feb. 15, 2022); Seal v.
Biden, No. 8:21-cv-2429-sdm-tgw, 2022 WL 520829 (M.D. Fla. Feb. 18, 2022). Two other
courts found similar challenges non-justiciable. See Church v. Biden, No. 21-2815 (CKK),
2021 WL 5179215 (D.D.C. Nov. 8, 2021); Robert v. Austin, No. 21-cv-02228-RM-STV,
2022 WL 103374 (D. Colo. Jan. 11, 2022).
2
Case: 22-10077 Document: 00516220389 Page: 3 Date Filed: 02/28/2022
3a
No. 22-10077
from mandatory vaccination” service members “actively participating in
COVID-19 clinical trials.” 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.” It also authorized the Chief of Naval
Operations and Commandant of the Marine Corps “to exercise the full range
of administrative and disciplinary actions to hold non-exempt Service
Members appropriately accountable.” Such actions “include, but [are] not
limited to, removal of qualification for advancement, promotions,
reenlistment, or continuation, consistent with existing regulations, or
otherwise considering vaccination status in personnel actions as
appropriate.”
The next day, consistent with Secretary Del Toro’s order, the Navy
issued “NAVADMIN 190/21,” which “provides guidance” on
implementing the vaccine mandate within the Navy. NAVADMIN 190/21
states that “COVID-19 vaccination is mandatory for all DoD service
members who are not medically or administratively exempt.” Religious
accommodations fall under administrative exemptions. Again, “service
members who are actively participating in COVID-19 clinical trials are
exempt from mandatory vaccination against COVID-19.” NAVADMIN
190/21 also specifies that the “COVID Consolidated Disposition Authority
(CCDA)” will determine “ultimate disposition” of Navy service members
who remain unvaccinated. The CCDA “serve[s] as the central authority for
adjudication and will have at his or her disposal the full range of
administrative and disciplinary actions.”
The Navy, moreover, mandated FDA-approved COVID-19
vaccinations under its Manual of the Medical Department (“MANMED”).
MANMED § 15-105, covering special operations service members, provides:
“[special operations] designated personnel refusing to receive recommended
vaccines . . . based solely on personal or religious beliefs are disqualified.
3
Case: 22-10077 Document: 00516220389 Page: 4 Date Filed: 02/28/2022
4a
No. 22-10077
This provision does not pertain to medical contraindications or allergies to
vaccine administration.” Service members who are “disqualified” under the
MANMED have been rendered “non-deployable.”
The Commander of Naval Special Warfare Command later issued
“Trident Order #12.” The order set a deadline of October 17, 2021, for
unvaccinated service members to receive their first jab or submit an
exemption request. And it provides that “exemptions for medical and/or
administrative (including religious) reasons will be adjudicated via service
policies.” Further, “special operations designated personnel (SEAL and
SWCC) refusing to receive recommended vaccines based solely on personal
or religious beliefs will still be medically disqualified.” But, like MANMED
§ 15-105(3)(n)(9), Trident Order #12 “does not pertain to medical
contraindications or allergies to vaccine administration.” Any “waiver from
medical requirements for special operations qualification requires a separate
waiver that is in addition to waiver of the COVID-19 vaccine requirement for
all service members.”
The Navy subsequently issued “NAVADMIN 225/21,” designating
the Chief of Naval Personnel as the CCDA and providing procedural
guidance for administrative disposition of unvaccinated Navy service
members. NAVADMIN 225/21 mandates “administrative separation” of
all “Navy service members refusing the COVID-19 vaccination, absent a
pending or approved exemption.” It also authorizes commanding officers to
“to temporarily reassign Navy service members who refuse the COVID-19
vaccine, regardless of exemption status, based on operational readiness or
mission requirements.” In addition, “Commands shall not allow those
refusing the vaccine to promote/advance, reenlist, or execute orders, with
the exception of separation orders, until the CCDA has completed
disposition of their case.” Commanders “shall delay the promotion of any
officer” and “withhold the advancement of any enlisted member” who
4
Case: 22-10077 Document: 00516220389 Page: 5 Date Filed: 02/28/2022
5a
No. 22-10077
refuses the vaccine. Service members separated for refusing the vaccine
“will not be eligible for involuntary separation pay and will be subject to
recoupment of any unearned special or incentive pays.” The CCDA may
also “seek recoupment of applicable bonuses, special and incentive pays, and
the cost of training and education for service members refusing the vaccine.”
The Navy finally issued “NAVADMIN 256/21” to specify that
“service members with approved or pending COVID-19 vaccination
exemption requests shall not be processed for separation or be subject
to . . . other administrative actions . . . due solely to their lack of COVID-19
vaccination.” Unvaccinated service members, however, “regardless of
exemption status, may be temporarily reassigned . . . based on operational
readiness and mission requirements.” NAVADMIN 256/21 further requires
service members whose COVID-19 vaccination exemption requests are
denied to receive the vaccine within five days of the denial, or else they “will
be processed for separation and be subject to . . . other administrative
actions.”
B.
Plaintiffs are 35 Navy service members assigned to Naval Special
Warfare Command units. They comprise over two dozen SEALs, plus
Special Warfare Combatant Craft Crewmen (SWCC), an Ordnance Disposal
Technician (EOD), and three Divers (collectively, “Plaintiffs”). In
November 2021, they sued President Biden, Secretary Austin, Secretary Del
Toro, and the DoD (collectively, “Defendants”), challenging the Navy’s
COVID-19 vaccine policies, on their face and as applied, under the Religious
5
Case: 22-10077 Document: 00516220389 Page: 6 Date Filed: 02/28/2022
6a
No. 22-10077
Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq., and the free
exercise clause of the First Amendment. 2
Shortly thereafter, Plaintiffs moved for a preliminary injunction. The
district court held a hearing at which Plaintiffs presented live testimony and
other evidence. We describe in detail the relevant evidence in the record and
the district court’s factual findings.
i.
As of November 2021, 99.4% of active-duty Navy service members
had been fully vaccinated against COVID-19. Before and after vaccines
became available, several Plaintiffs deployed overseas and completed
missions, while others served as instructors in training commands.
Operations continued without issue, as many Plaintiffs practiced mitigation
techniques—social distancing, testing, quarantining, etc. Defendants
identify no instance where a Plaintiff’s vaccination status—or any service
member’s vaccination status—compromised a special warfare mission.
The Navy follows a six-phase, 50-step process to adjudicate religious
accommodation requests. 3 During the first 13 steps, staff members verify the
required documents submitted with the request. At steps 14 and 15, staff
members add the requesting service member’s personal information to a
“disapproval template” form. There apparently is no approval template. At
2
Plaintiffs initially brought their claims against Secretaries Austin and Del Toro in
both their individual and official capacities. And they also asserted claims under the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06. They have, however, since
filed an amended complaint against the remaining individual Defendants in their official
capacities alone without bringing any APA claims. President Biden is not named in the
amended complaint.
3
See Deputy Chief of Naval Operations Standard Operating Procedure for
Religious Accommodations (dated Nov. 2021).
6
Case: 22-10077 Document: 00516220389 Page: 7 Date Filed: 02/28/2022
7a
No. 22-10077
step 33, staff members transmit an internal memorandum to Vice Admiral
John B. Nowell, requesting that he “sign . . . letters disapproving
immunization waiver requests based on sincerely held religious beliefs.” At
steps 35 to 38, staff members review the accommodation request and list
details in a spreadsheet with other requests for Vice Admiral Nowell to
review. But by then, the disapproval is fully teed-up: the disapproval letter
has been written; the disapproval and religious accommodation request has
been packaged with similar requests, and the internal memorandum to Vice
Admiral Nowell requesting disapproval has been drafted.
In December 2021, the Navy reported receiving 2,844 requests for
religious accommodations. A more recent report suggests that more than
4,000 active duty and Navy Reserve sailors have submitted such requests.
The Navy has denied them all. Indeed, during the last seven years, the Navy
has not granted a single religious exemption from any vaccination. Yet, with
respect to the COVID-19 vaccine, it has approved at least “10 permanent
medical exemptions, 259 temporary medical exemptions, and 59
administrative exemptions for active duty sailors, along with seven
temporary medical exemptions and 24 administrative exemptions for Navy
Reserve sailors.” At least 17 of the 259 temporary medical exemptions were
granted to service members assigned to Naval Special Warfare.
ii.
Plaintiffs represent various Christian denominations within the
Catholic, Eastern Orthodox, and Protestant Churches. They “each object to
7
Case: 22-10077 Document: 00516220389 Page: 8 Date Filed: 02/28/2022
8a
No. 22-10077
receiving a COVID-19 vaccination based on their sincerely held religious
beliefs.” 4
Plaintiffs each filed a request for a religious accommodation, which
describes his or her sincere religious beliefs and the substantial burden placed
on them by the Navy’s vaccine mandate. Many are supported by chaplains’
memoranda confirming the basis and sincerity of Plaintiffs’ beliefs and
positions with respect to the COVID-19 vaccine.
For purposes of this litigation, Plaintiffs also filed declarations,
confirming their religious beliefs and emphasizing that they do not object to
undertaking COVID-19 mitigation measures such as masking, social
distancing, and regular testing. and their experiences during the
accommodation-request process.
The declarations also describe their experiences during the religious
accommodation process. Various commanders told several Plaintiffs that
they risked losing their special warfare device, the SEAL Trident, if they
requested a religious accommodation. Many were also declared “medically
disqualified,” or “non-deployable,” simply as a result of submitting their
requests. Many Plaintiffs have also become ineligible for travel, transfer to
other posts including trainings, and advancement in leadership simply
because they are unvaccinated and have requested religious
accommodations. For example, U.S. Navy SEAL 13 was removed from his
leadership position, setting him back at least two years in progressing to the
next rank. And U.S. Navy Special Warfare Combatant Craft Crewman 1 was
denied training and told by a commander that “the Navy does not want to
4
Their objections include, inter alia, the vaccines’ ties to aborted fetal cell lines,
divine instruction not to receive the vaccine, and the mRNA vaccines’ altering the divine
creation of their body by unnaturally inducing production of spike proteins.
8
Case: 22-10077 Document: 00516220389 Page: 9 Date Filed: 02/28/2022
9a
No. 22-10077
spend additional money training someone it is going to lose.” Plaintiffs
suggest that if the Navy discharges them and seeks recoupment of their
training and education costs, those expenses could exceed one million dollars
each.
Plaintiffs claim their accommodation requests are futile because
denial is a predetermined outcome. U.S. Navy SEAL 2’s chain of command
advised him that “all religious accommodation requests will be denied,”
because “senior leadership . . . has no patience or tolerance for service
members who refuse COVID-19 vaccination for religious reasons and want
them out of the SEAL community,” and that “even if a legal challenge is
somehow successful, the senior leadership of Naval Special Warfare will
remove [his] special warfare designation.” U.S. Navy SEAL 5 averred that
“[n]umerous comments from [his] chain of command indicate[d] . . . that
there [would] be a blanket denial of all religious accommodation requests
regarding COVID-19 vaccination.” US Navy SEAL 8 averred that his
“chain of command . . . made it clear that [his] request [would] not be
approved and . . . provided [him] with information on how to prepared for
separation from the U.S. Navy.” U.S. Navy SEAL 11 declared that during a
chief’s meeting, his command master chief told him that “anyone not
receiving the COVID-19 vaccine is an ‘acceptable loss’ to the Naval Special
Warfare (NSW) community” and the “legal department used language such
as ‘when they get denied,’ not ‘if they get denied.’”
iii.
Three Plaintiffs testified at the preliminary injunction hearing. First,
U.S. Navy SEAL 3 is stationed as an instructor for a medical training course
in Mississippi. His missions and duties have been accomplished successfully
since 2020 notwithstanding COVID-19. His chaplain supported his request
for religious accommodation, and his commanding officer recommended
9
Case: 22-10077 Document: 00516220389 Page: 10 Date Filed: 02/28/2022
10a
No. 22-10077
approval. In doing so, his commanding officer explained that “[t]he training
environment [of the command] often requires close quarters contact 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.” Further, “[t]he cumulative impact of repeated
accommodations of religious practices of a similar nature would mean my
command is still able to safely accomplish its mission and protect the health
and safety of its members”(emphasis added). While his request was pending,
U.S. Navy SEAL 3 was removed from his duty as an instructor to prepare for
separation.
As U.S. Navy SEAL 3’s request moved up the chain of command, the
Commander of Naval Special Warfare recommended disapproval without
explanation. The Deputy Chief of Naval Operations then formally
disapproved his request. He explained in generic terms that U.S. Navy SEAL
3 would “inevitably be expected to live and work in close proximity with [his]
shipmates,” and disapproval was “the least restrictive means available to
preserve the [DoD’s] compelling interest in military readiness, mission
accomplishment and the health and safety of military Service Members.”
The disapproval offered no explanation specific to U.S. Navy SEAL 3’s
request.
Second, U.S. Navy SEAL 2 is also stationed as an instructor for a
special operations tactical program in Mississippi. He explained that teams
around the country have deployed and were “able to successfully accomplish
their mission on those deployments through other mitigation tactics with
respect to COVID-19 before the vaccine.” And his specific training
command has successfully accomplished its missions notwithstanding
COVID-19.
10
Case: 22-10077 Document: 00516220389 Page: 11 Date Filed: 02/28/2022
11a
No. 22-10077
U.S. Navy SEAL 2’s chaplain and two Catholic bishops supported his
accommodation request. His commanding officer also recommended
approval, for the same reasons stated in U.S. Navy SEAL 3’s recommended
approval. But the Commander of Naval Special Warfare recommended
disapproval without explanation—as he did for U.S. Navy SEAL 3. The
Deputy Chief of Naval Operations subsequently disapproved U.S. Navy
SEAL 2’s request using the same boilerplate disapproval form with no
information specific to his request. U.S. Navy SEAL 2 testified that he had
“seen a number of these denial letters” and “[e]very one of them [he has]
seen [is] identical.” His appeal remains pending.
U.S. Navy SEAL 2 testified to adverse actions taken against
unvaccinated service members requesting religious accommodations. He
explained that “personnel from different commands have been relieved of
their milestone positions that, you know, essentially railroad their careers.”
Further, service members “have been pulled from their commands,” which
can set their careers back two or three years, and “been made to do menial
labor tasks, cleaners, sweeping clean grounds, in a temporary assigned duty
from their actual parent command.”
Third, U.S. Navy EOD Technician 1 testified that he deployed to
South Korea in support of a special operations command in early 2020 during
a significant COVID-19 outbreak. His team completed 76 joint service
engagements with 21 different U.S. and Korean partner forces, all while
maintaining effective COVID-19 mitigation tactics in compliance with CDC
guidelines. He even received a deployment joint service accommodation
medal from the special operations command in Korea for COVID-19
mitigation.
U.S. Navy EOD Technician 1 met with his superiors to discuss his
religious accommodation request and his commanding officer’s position,
11
Case: 22-10077 Document: 00516220389 Page: 12 Date Filed: 02/28/2022
12a
No. 22-10077
which was to deny it. They told him that if he received an accommodation,
“they probably could not find a place for [him] within the community as a
senior enlisted member.” He believes he “was being coerced into receiving
the vaccine.” They asked, “with [his] religious beliefs, if [he] thought that
martyrs would be remembered.”
The Commanding Officer of the Naval School EOD recommended
disapproval of U.S. Navy EOD Technician 1’s request, explaining that his
“reluctance to obtain vaccination has the potential to create total force health
ramifications” due to his “close quarters, hands-on training that cannot be
mitigated with COVID-19 protocols.” Without a fully vaccinated staff and
student population, the recommendation explained, the unit “risk[ed] not
being able to fully execute its mission.” The Deputy Chief of Naval
Operations subsequently disapproved the accommodation request on the
same boilerplate form used to disapprove the requests of U.S. Navy SEALs
2 and 3.
iv.
Following the hearing, the district court preliminarily enjoined
Secretary Austin, Secretary Del Toro, and the DoD from “applying
MANMED § 15-105(3)(n)(9); NAVADMIN 225/21; Trident Order #12;
and NAVADMIN 256/21 to Plaintiffs.” 5 U.S. Navy Seals 1–26 v. Biden, No.
4:21-cv-01236-O, 2022 WL 34443, *14 (N.D. Tex. Jan. 3, 2022) (O’Connor,
J.). It further enjoined those Defendants “from taking any adverse action
against Plaintiffs on the basis of Plaintiffs’ requests for religious
accommodation.” Id. The court excused Plaintiffs’ failure to exhaust
military remedies as futile, finding the Navy’s religious accommodation
process is “an empty formality” because “the denial of each request is
5
The district court also dismissed President Biden from the suit.
12
Case: 22-10077 Document: 00516220389 Page: 13 Date Filed: 02/28/2022
13a
No. 22-10077
predetermined.” Id. at *4; see also id. at *1 (describing process as “theater”
and finding the Navy “rubber stamps each denial”); id. at *5 (“[T]he
Plaintiffs’ requests are denied the moment they begin.”). As to Plaintiffs’
likelihood of success on their RFRA claims, 6 the court found that Defendants
could not show a compelling interest in vaccinating Plaintiffs because the
religious accommodation process lacks “individualized assessment” and is
underinclusive, “includ[ing] carveouts for those participating in clinical
trials and those with medical contraindications and allergies to vaccines,” but
not those with religious objections. Id. at *10. Defendants filed a timely
interlocutory appeal.
After the preliminary injunction took effect, the Navy formally denied
U.S. Navy SEAL 16’s appeal of his initially rejected religious accommodation
request. The denial appears to be a boilerplate letter, mentioning nothing
specific about SEAL 16’s request. Plaintiffs submit that “SEAL 24 has yet
to receive his denial, but his command informed him that his appeal was
denied on February 11.”
v.
Defendants 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.” The court denied the motion, but it clarified that the
preliminary injunction:
6
The district court also concluded that the Defendants’ actions violated the
Plaintiffs’ First Amendment right to free exercise of religion. We need not review that
portion of the district court’s ruling.
13
Case: 22-10077 Document: 00516220389 Page: 14 Date Filed: 02/28/2022
14a
No. 22-10077
[does] not require[] Defendants to make any particular
personnel assignments. All strategic decisions remain in the
hands of the Navy. Rather, the preliminary injunction simply
prohibits adverse action against Plaintiffs based on their
requests for religious accommodation. This Court will not—
and 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 action against that SEAL by
blocking him from the training program he would otherwise
attend.
Defendants subsequently moved this court to partially 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.” 7 They maintain that “[f]orcing the Navy
to deploy plaintiffs while they are unvaccinated threatens the success of
critical missions and needlessly endangers the health and safety of other
service members.”
II. Discussion
“Before addressing the merits, we must be sure that this is a justiciable
case or controversy under Article III.” Holder v. Humanitarian Law Project,
561 U.S. 1, 15, 130 S. Ct. 2705, 2717 (2010). If it is not, our inquiry will end.
If it is, then we must consider whether Defendants have satisfied the four
factors required to grant a stay pending appeal. See Nken v. Holder, 556 U.S.
418, 426, 129 S. Ct. 1749, 1756 (2009) (quoting Hilton v. Braunskill, 481 U.S.
7
While the interlocutory appeal and emergency motion have been pending in this
court, proceedings in the district court continue. Plaintiffs sought class certification and
moved for a class-wide preliminary injunction. They also sought a show cause order,
arguing that “Defendants are disregarding and willfully violating [the preliminary
injunction] by continuing to apply the same policies and continuing to impose the same
injuries on Plaintiffs that initially warranted injunctive relief[.]” Defendants have
meanwhile moved to dismiss or, alternatively, transfer venue.
14
Case: 22-10077 Document: 00516220389 Page: 15 Date Filed: 02/28/2022
15a
No. 22-10077
770, 776, 107 S. Ct. 2113, 2119 (1987)). This dispute is justiciable. But
Defendants have not carried their burden to warrant the issuance of a stay.
A.
Congress rendered justiciable Plaintiffs’ claims under RFRA, which
applies to every “branch, department, agency, instrumentality, and official
(or other person acting under color of law) of the United States[.]”
42 U.S.C. § 2000bb-2(1). RFRA, in turn, sets the standards binding every
department of the United States to recognize and accommodate sincerely
held religious beliefs. It undoubtedly “applies in the military context.”
United States v. Sterling, 75 M.J. 407, 410 (C.A.A.F. 2016), cert. denied,
137 S. Ct. 2212 (2017). This makes sense because service members
“experience increased needs for religion as the result of being uprooted from
their home environments, transported often thousands of miles to territories
entirely strange to them, and confronted there with new stresses that would
not otherwise have been encountered if they had remained at home.” Katcoff
v. Marsh, 755 F.2d 223, 227 (2nd Cir. 1985). Federal courts are therefore
empowered to adjudicate RFRA’s application to these Plaintiffs.
Notwithstanding RFRA’s broad scope, the district court below, as
well as other courts, have believed themselves bound by a judicial abstention
doctrine created in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971). In that
case, the court sought to identify situations in which federal courts, faced
with claims implicating internal military affairs, must withhold adjudication
in favor of military decision-making. Mindes abstention is rooted in the
federal common law principle of “comity.” Mindes, 453 F.2d at 199. But it
is likely that, following RFRA’s enactment, abstention based on the Mindes
15
Case: 22-10077 Document: 00516220389 Page: 16 Date Filed: 02/28/2022
16a
No. 22-10077
test is no longer permissible. 8 RFRA “operates as a kind of super statute,
displacing the normal operation of other federal laws[.]” Bostock v. Clayton
County, 140 S. Ct. 1731, 1754 (2020). It would not be a stretch to conclude
that RFRA must also displace a judge-created abstention doctrine. “[W]hen
Congress addresses a question previously governed by a decision rested on
federal common law the need for such an unusual exercise of lawmaking by
federal courts disappears.” City of Milwaukee v. Illinois, 451 U.S. 304, 314,
101 S. Ct. 1784, 1791 (1981).
In an abundance of caution and deferring to circuit precedent,
however, we consider whether Mindes abstention ought to apply here.
Mindes requires courts to “examine the substance of [a plaintiff’s] allegation
[implicating internal military affairs] in light of the policy reasons behind
nonreview of military matters.” 9 453 F.2d at 201. In doing so, courts must
first determine whether “[t]he plaintiff has alleged a deprivation of
constitutional rights or that the military violated statutes or its own
regulations[.]” Meister v. Tex. Adjutant Gen.’s Dep’t, 233 F.3d 332, 339 (5th
Cir. 2000) (citing Mindes, 453 F.2d at 201). Courts must next assess whether
the plaintiff has exhausted all available intra-service corrective measures.
Mindes, 453 F.2d at 201. If the plaintiff satisfies both criteria, then the court
considers a series of factors, which amount to a synopsis of pre-Mendes case
8
A respected treatise disagrees with Mindes on other grounds, stating that “[t]here
is nothing in the power of Congress to make rules for the government and regulation of the
land and naval forces, nor in the powers of the President as commander in chief, that ousts
the power of courts to protect the constitutional rights of individuals against improper
military actions.” 13C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2942 n.80 (3d ed. Apr. 2021 update).
9
Among a number of reasons for imposing an exhaustion requirement, the court
stated that “the greatest reluctance to accord judicial review [of internal military affairs]
has stemmed from the proper concern that such review might stultify the military in the
performance of its vital mission.” Id. at 199.
16
Case: 22-10077 Document: 00516220389 Page: 17 Date Filed: 02/28/2022
17a
No. 22-10077
law that had adjudicated claims arising from military service: (1) “[t]he
nature and strength of the plaintiff’s challenge to the military
determination[;]” (2) “[t]he potential injury to the plaintiff if review is
refused[;]” (3) “[t]he type and degree of anticipated interference with the
military function[;]” and (4) “[t]he extent to which the exercise of military
expertise or discretion is involved.” Id. at 201-02.
i.
Plaintiffs satisfy the first threshold Mendes inquiry because they allege
constitutional violations of the First Amendment and RFRA, which “secures
Congress’ view of the right to free exercise under the First Amendment[.]”
Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020).
With respect to the second inquiry, this court has held that “[i]n the
military context, the exhaustion requirement promotes the efficient
operation of the military’s judicial and administrative systems, allowing the
military an opportunity to fully exercise its own expertise and discretion prior
to any civilian court review.” Von Hoffburg v. Alexander, 615 F.2d 633, 637-
38 (5th Cir. 1980) (citing Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974)).
Nonetheless, exhaustion is unnecessary if, inter alia, the administrative
remedy is futile and plaintiffs raise substantial constitutional claims. Id. at
638 (citations omitted).
Plaintiffs are exempted from exhausting their administrative remedies
for both of these reasons. 10 The Navy has not accommodated any religious
request to abstain from any vaccination in seven years, and to date it has
denied all religiously based claims for exemption from COVID-19
10
The two Plaintiffs whose appeals have been finally adjudicated require no such
exemption, so this analysis only pertains to the 33 who have not received any final
determinations.
17
Case: 22-10077 Document: 00516220389 Page: 18 Date Filed: 02/28/2022
18a
No. 22-10077
vaccination. It is true that futility is not a function of the likely ultimate
success of administrative exhaustion. But evidence, recited previously and
not meaningfully challenged here, suggests that the Navy has effectively
stacked the deck against even those exemptions supported by Plaintiffs’
immediate commanding officers and military chaplains. This is sufficiently
probative of futility. 11 Further, as explained more fully below, Plaintiffs raise
substantial, legally clear-cut questions under RFRA. Courts are specifically
equipped to address RFRA claims and, by the same token, the issues are less
suitable for administrative adjudication. Plaintiffs have thus satisfied the
threshold criteria required by Mindes. But a final justiciability determination
depends on considering the four additional Mindes points.
ii.
The district court determined that each of the four additional Mindes
considerations favors justiciability. We agree.
The constitutional underpinnings and merit of Plaintiffs’ claims weigh
in favor of granting judicial review. Constitutional claims are “normally
more important than those having only a statutory or regulatory base[.]”
Mindes, 453 F.2d at 201. Indeed, this court has favorably cited the Ninth
Circuit’s determination that “[r]esolving a claim founded solely upon a
constitutional right is singularly suited to a judicial forum and clearly
inappropriate to an administrative board.” Downen v. Warner, 481 F.2d 642,
643 (9th Cir. 1973); see Von Hoffburg, 615 F.2d at 638 (citing Downen,
11
Unlike in this case, the Marines in Church v. Biden “advanced no argument or
evidence demonstrating that obtaining review of any future discipline or removal pursuant
to ordinary military review procedures would be futile or inadequate.” 2021 WL 5179215,
at *11. Similarly, the court in Robert v. Austin, found that “Plaintiffs’ contention that they
may be subject to discipline for refusing to take a vaccine appear[ed] to be based on nothing
more than speculation.” 2022 WL 103374, at *3. Plaintiffs here have done the exact
opposite.
18
Case: 22-10077 Document: 00516220389 Page: 19 Date Filed: 02/28/2022
19a
No. 22-10077
481 F.2d at 643). This is especially so when a plaintiff’s claims are “founded
on infringement of specific constitutional rights[.]” NeSmith v. Fulton,
615 F.2d 196, 201-02 (5th Cir. 1980) (citations omitted). Plaintiffs allege
specific, and far from frivolous, violations of their free exercise rights under
both the First Amendment and RFRA. Thus, the nature and strength of
Plaintiffs’ claims weigh in favor of judicial resolution.
Plaintiffs also face irreparable harm if judicial review is denied. “In
general, a harm is irreparable where there is no adequate remedy at law, such
as monetary damages.” Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011)
(citation omitted). “The loss of First Amendment freedoms, for even
minimal periods of time unquestionably constitutes irreparable injury.”
Opulent Life Church v. City of Holly Springs Miss., 697 F.3d 279, 295 (5th Cir.
2012) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976)
(plurality opinion)). “This principle applies with equal force to the violation
of [RFRA] rights because [RFRA] enforces First Amendment freedoms, and
the statute requires courts to construe it broadly to protect religious
exercise.” 12 Id. (citations omitted). At base, Plaintiffs are staring down even
more than “a choice between their job(s) and their jab(s).” BST Holdings,
L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021). By pitting their
consciences against their livelihoods, the vaccine requirements would crush
Plaintiffs’ free exercise of religion.
12
Opulent Life Church involved claims under Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq., but “[b]oth RFRA
and RLUIPA impose essentially the same requirements as Sherbert [v. Verner, 374 U.S. 398,
83 S. Ct. 1790 (1963)]” Fulton v. City of Phila., 141 S. Ct. 1868, 1922 (2021) (Barrett, J.,
concurring); see also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 695, 134 S. Ct. 2751,
2761 (2014) (citation omitted) (RLUIPA “imposes the same general test as RFRA but on
a more limited category of governmental actions.”).
19
Case: 22-10077 Document: 00516220389 Page: 20 Date Filed: 02/28/2022
20a
No. 22-10077
The most problematic of the Mindes considerations is whether judicial
review of Plaintiffs’ claims would seriously impede the Navy’s performance
of its vital duties. Because “there will always be some interference when
review is granted,” courts ought to abstain only where “the interference
would be such as to seriously impede the military in the performance of vital
duties[.]” Mindes, 453 F.2d at 201. We are aware of the Navy’s general
objection that federal court resolution of these claims “cause[s] direct and
immediate impact to mission execution.” 13 But the Navy acknowledges that
it has granted hundreds of medical exemptions from the COVID-19 vaccine,
at least 17 of which were temporary medical exemptions for those in Naval
Special Warfare. 14 Only 35 Plaintiffs seek religious accommodations here.
And “5,035 active component and 2,960 Ready Reserve sailors” remained
unvaccinated as of January 27, 2022. It is therefore “illogical . . . that
Plaintiff[s’] religious-based refusal to take a COVID-19 vaccine would
‘seriously impede’ military function when the [Navy] has [over 5,000]
service members still on duty who are just as unvaccinated as [the
Plaintiffs].” 15 Air Force Officer, 2022 WL 468799, at *7. In fact, Vice Admiral
13
The commanding officer of two Plaintiffs, however, averred that “the
cumulative impact of repeated accommodations of religious practices . . . would mean [his]
command is still able to safely accomplish its mission and protect the health and safety of
its members.”
14
The Navy’s willingness to grant hundreds of medical exemptions undermines its
reliance on decisions like Goldman v. Weinberger, 475 U.S. 503, 106 S. Ct. 1310 (1986),
abrogated by 10 U.S.C. § 774(a)-(b). The Goldman court held that “the First Amendment
does not require the military to accommodate [wearing a yarmulke] in the face of its view
that they would detract from the uniformity sought by the dress regulations.” Id. at
475 U.S. at 509-10, 106 S. Ct. at 1314. The Navy is currently 99.4% uniform in its COVID-
19 vaccination status. To the extent that the remaining 0.6% are not uniform, the
exemptions granted by the Navy belie its insistence on uniformity in this case.
15
The Navy had formally discharged 45 sailors for refusing the COVID-19 vaccine
as of January 27, 2022.
20
Case: 22-10077 Document: 00516220389 Page: 21 Date Filed: 02/28/2022
21a
No. 22-10077
William Merz recently observed that during operations conducted with fully
vaccinated personnel, the Omicron variant in particular is “coming and going
all the time, [in] very small numbers, and [with] really no operational
impact[.]” 16 Significantly, the Navy recently aligned its testing and isolation
guidelines with updated, looser CDC protocols, which recommend isolation
for those who test positive only “for five days or until symptoms have
cleared, depending on which is longer.” Such individuals then only have to
“wear a mask for an additional five days.” Thus, “Navy teams are [] very,
very attuned to watching their indications and reacting to [the virus].” 17
Finally, the extent to which military expertise or discretion is involved
does not militate against judicial review. “Courts should defer to the
superior knowledge and experience of professionals in matters such as
promotions or orders directly related to specific military functions.” Mindes,
453 F.2d at 201-02. To be sure, “[t]he complex, subtle, and professional
decisions as to the composition, training, equipping, and control of a military
force are essentially professional military judgments[.]” Gilligan v. Morgan,
413 U.S. 1, 10, 93 S. Ct. 2440, 2446 (1973) The 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 because
16
Defendants insist that this quotation is taken out of context. But the “context”
they emphasize is based on the article’s summary of Admiral Merz’s sentiments, not the
words of Admiral Merz himself. We rely on the admiral’s quoted words.
17
Also noteworthy concerning the comparative efficacy of vaccination is that the
USS Milwaukee was “sidelined” in December 2021 by a COVID-19 outbreak despite
having a fully vaccinated crew; and over 15 members of one Plaintiff’s entirely vaccinated
detachment contracted, or were exposed to, COVID-19 during a training exercise.
21
Case: 22-10077 Document: 00516220389 Page: 22 Date Filed: 02/28/2022
22a
No. 22-10077
“[g]enerals don’t make good judges—especially when it comes to nuanced
constitutional issues.” 18 Air Force Officer, 2022 WL 468799, at *8.
Accordingly, even under Mindes, Plaintiffs’ claims are justiciable.
B.
When considering whether to grant a stay pending appeal, a court
must consider:
o First, whether the stay applicants have made a strong
showing that they are likely to succeed on the merits;
o Second, whether the applicants will be irreparably harmed
absent a stay;
o Third, whether issuance of the stay will substantially injure
the other parties; and
o Fourth, where the public interest lies.
Nken, 556 U.S. at 426, 129 S. Ct. 1756 (quoting Hilton, 481 U.S. at 776,
107 S. Ct. at 2119). The first two factors “are the most critical.” Id. at 434.
i.
Defendants argue that they are likely to prevail because Plaintiffs’
claims are non-justiciable and otherwise lack merit. But we reject non-
justiciability, and the district court painstakingly explained why, at a
minimum, their RFRA claims are meritorious. We elaborate on the district
court’s reasoning.
As the Supreme Court has noted, RFRA affords even “greater
protection for religious exercise than is available under the First
Amendment[]” and provides that the:
18
Judge Tilman E. Self III is a former Army artillery officer. Id. at *5.
22
Case: 22-10077 Document: 00516220389 Page: 23 Date Filed: 02/28/2022
23a
No. 22-10077
Government may substantially burden a person’s exercise of
religion only if it demonstrates that application of the burden
to the person—(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.
Holt v. Hobbs, 574 U.S. 352, 357, 135 S. Ct. 853, 859-60 (2015); 42 U.S.C.
§ 2000bb-1. “[T]he ‘exercise of religion’ often involves not only belief and
profession but the performance of (or abstention from) physical acts[.]”
Employment Div. v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 1599 (1990).
And “a government action or regulation creates a ‘substantial burden’ on a
religious exercise if it truly pressures the adherent to significantly modify his
religious behavior and significantly violates his religious beliefs.” Adkins v.
Kaspar, 393 F.3d 559, 570 (5th Cir. 2004) (involving RLUIPA). Once a
plaintiff demonstrates a substantial burden on his exercise of religion,
“RFRA requires the Government to demonstrate that the compelling
interest test is satisfied through application of the challenged law ‘to the
person’—the particular claimant whose sincere exercise of religion is being
substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 430-431, 126 S. Ct. 1211, 1220 (2006) (quoting
42 U.S.C. § 2000bb-1(b)). This is a “high bar.” Little Sisters of the Poor
Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2392 (2020) (Alito,
J., concurring). This already high bar is raised even higher “[w]here a
regulation already provides an exception from the law for a particular
group[.]” McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 472 (5th
Cir. 2014) (citations omitted); see also Fulton, 141 S. Ct. at 1878-83.
The Navy does not even dispute that its COVID-19 vaccination
requirements substantially burden each Plaintiff’s free exercise of religion,
but the nature of the injury bears emphasis. Plaintiffs have thoughtfully
articulated their sincere religious objections to taking the vaccine itself.
Accepting the vaccine would directly burden their respective faiths by forcing
23
Case: 22-10077 Document: 00516220389 Page: 24 Date Filed: 02/28/2022
24a
No. 22-10077
them to inject an unremovable substance at odds with their most profound
convictions. This injury would outlast their military service, making the
decision whether to acquiesce far more difficult than just choosing between
“their job(s) and their jab(s).” BST Holdings, 17 F.4th at 618. The vaccine
requirements principally compete against their faiths and secondarily against
their livelihoods. These circumstances impose a substantial burden on
Plaintiffs. See Little Sisters of the Poor, 140 S. Ct. at 2391 (contraceptive
mandate imposed a substantial burden on employers that had religious
objections to contraceptives and believed that complying would make them
complicit in the provision of contraceptives); see also Holt, 574 U.S. at 361,
135 S. Ct. at 862 (RLUIPA context) (a grooming policy “substantially
burden[ed] [a prisoner’s] religious exercise[]” where he “face[d] serious
disciplinary action[]” for contravening that policy).
In an attempt to subordinate Plaintiffs’ protected interest, the Navy
focuses instead on its institutional interests. Defendants’ position is that:
The Navy has an extraordinarily compelling interest in
requiring that service members generally—and these plaintiffs
in particular—be vaccinated against COVID-19, both (1) to
reduce the risk that they become seriously ill and jeopardize the
success of critical missions and (2) to protect the health of their
fellow service members.
The Navy has been extraordinarily successful in vaccinating service
members, as at least 99.4% of whom are vaccinated. 19 But that general interest
is nevertheless insufficient under RFRA. The Navy must instead
“scrutinize[] the asserted harm of granting specific exemptions to particular
religious claimants.” O Centro, 546 U.S., at 431, 126 S. Ct. at 1220. “The
19
As the district court explained in denying Defendants’ stay motion, statistically
speaking, “vaccinated servicemembers are far more likely to encounter other unvaccinated
individuals off-base among the general public than among their ranks.”
24
Case: 22-10077 Document: 00516220389 Page: 25 Date Filed: 02/28/2022
25a
No. 22-10077
question, then, is not whether [the Navy has] a compelling interest in
enforcing its [vaccination] policies generally, but whether it has such an
interest in denying an exception to [each Plaintiff].” Fulton, 141 S. Ct. at
1881. And RFRA “demands much more[]” than deferring to “officials’
mere say-so that they could not accommodate [a plaintiff’s religious
accommodation] request.” Holt, 574 U.S. at 369, 135 S. Ct. at 866 (RLUIPA
context). That is because “only the gravest abuses, endangering paramount
interests, give occasion for permissible limitation[]” on the free exercise of
religion. Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 1795 (1963)
(internal quotation marks and citations omitted). 20
Defendants have not demonstrated “paramount interests” that
justify vaccinating these 35 Plaintiffs against COVID-19 in violation of their
religious beliefs. They insist that “given the small units and remote locations
in which special-operations forces typically operate, military commanders
have determined that unvaccinated service members are at significantly
higher risk of becoming severely ill from COVID-19 and are therefore
medically unqualified to deploy.” But “[r]outine [Naval Special Warfare]
mission risks include everything from gunshot wounds, blast injuries,
parachute accidents, dive injuries, aircraft emergencies, and vehicle rollovers
to animal bites, swimming or diving in polluted waters, and breathing toxic
chemical fumes.” There is no evidence that the Navy has evacuated anyone
from such missions due to COVID-19 since it instituted the vaccine mandate,
but Plaintiffs engage in life-threatening actions that may create risks of equal
or greater magnitude than the virus.
20
Sherbert, of course, formed the foundation for RFRA. See Fulton, 141 S. Ct. at
1922 (Barrett, J., concurring).
25
Case: 22-10077 Document: 00516220389 Page: 26 Date Filed: 02/28/2022
26a
No. 22-10077
More specifically, multiple Plaintiffs successfully deployed overseas
before and after the vaccine became available, and one even received a Joint
Service Commendation Medal for “safely navigating restricted movement
and distancing requirements” while deployed in South Korea between
January and June 2020. 21 Plaintiffs also trained other SEALs preparing for
deployments at various points during the pandemic while remaining
unvaccinated.
The Navy’s alleged compelling interest is further undermined by
other salient facts. It has granted temporary medical exemptions to 17 Special
Warfare members, yet no reason is given for differentiating those service
members from Plaintiffs. That renders the vaccine requirements
“underinclusive.” Navy Seals 1–26, 2022 WL 34443, at *10. And
“underinclusiveness . . . is often regarded as a telltale sign that the
government’s interest in enacting a liberty-restraining pronouncement is not
in fact ‘compelling.’ ” BST Holdings, 17 F.4th at 616 (citing Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542-46, 113 S. Ct.
2217, 2231-34(1993)); See also Holt, 574 U.S. at 367, 135 S. Ct. at 865
(RLUIPA context) (a policy was substantially underinclusive where a prison
“denied petitioner’s request to grow a 1/2-inch beard [for religious reasons]
[while permitting] prisoners with a dermatological condition to grow 1/4-
inch beards.”). Moreover, in none of the letters denying religious
accommodations to these Plaintiffs has the Navy articulated Plaintiff-specific
reasons for its decisions. 22 Further evidencing that there is a pattern of
21
During this deployment, Navy EOD Technician 1 completed 76 joint service
engagements with 21 U.S. and Korean partner forces, all while maintaining effective
COVID-19 mitigation tactics in compliance with CDC guidelines.
22
On the contrary, some of the remarks uttered by superior officers to Plaintiffs
could be regarded as outright hostile to their desire for religious accommodations. See
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1732 (2018).
26
Case: 22-10077 Document: 00516220389 Page: 27 Date Filed: 02/28/2022
27a
No. 22-10077
disregard for RFRA rights rather than individualized consideration of
Plaintiffs’ requests, the Navy admits it has not granted a single religious
accommodation. Yet surely, had the Navy been conscientiously adhering to
RFRA, it could have adopted least restrictive means to accommodate
religious objections against forced vaccinations, for instance, to benefit
personnel working from desks, warehouses, or remote locations.
Considering the record as a whole, we agree with the district court that
Defendants have not shown a compelling interest to deny religious
accommodations to each of these 35 Plaintiffs. Indeed, the “marginal
interest” in vaccinating each Plaintiff appears to be negligible; consequently,
Defendants lack a sufficiently compelling interest to vaccinate Plaintiffs.
Hobby Lobby, 573 U.S. at 727, 134 S. Ct. at 2779 (citing O Centro, 546 U.S. at
431, 126 S. Ct.at 1220-21).
In the absence of a compelling interest, the first Nken factor weighs
against granting the requested partial stay.
ii.
Defendants also contend that “[b]y requiring the Navy to disregard
plaintiffs’ unvaccinated status in making deployment, assignment, and other
operational decisions, the preliminary injunction irreparably damages the
Navy and the public.” We disagree.
Despite their concerns, Defendants do not face irreparable harm in
the absence of a stay. “[B]ecause the Government has requested a stay
pending completion of appellate proceedings, the relevant question is
whether the Government will be irreparably harmed during the pendency of the
appeal.” State v. Biden, 10 F.4th 538, 559 (5th Cir. 2021) (emphasis in
original). Defendants emphasize that the Navy “must deploy only service
members who are at the least risk of becoming severely ill, leaving their units
shorthanded and potentially unable to complete missions.” In any event, the
27
Case: 22-10077 Document: 00516220389 Page: 28 Date Filed: 02/28/2022
28a
No. 22-10077
district court clarified that the preliminary injunction “simply prohibits
adverse action against Plaintiffs based on their requests for religious
accommodation.” Defendants therefore remain able to make decisions
based on other neutral factors. And “[e]ven if [Defendants are] correct that
long-term compliance with the district court’s injunction would cause
irreparable harm, [they] present[] no reason to think that [they] cannot
comply with the district court’s [injunction] while the appeal proceeds.” 23
Biden, 10 F.4th at 559.
iii.
Partially staying the preliminary injunction pending appeal would
substantially harm Plaintiffs. As we noted, Plaintiffs’ First Amendment
freedoms are seriously infringed by the Navy’s vaccine requirements. See
BST Holdings, 17 F.4th at 618; see also Holt, 574 U.S. at 361, 135 S. Ct. at 862;
Little Sisters of the Poor, 140 S. Ct. at 2391. These infringements
“unquestionably constitute[] irreparable injur[ies].” Opulent Life Church,
697 F.3d at 295 (quoting Elrod, 427 U.S. at 373, 96 S. Ct. at 2690). No further
showing is necessary for Plaintiffs to demonstrate that even partially staying
the injunction would irreparably harm them.
iv.
The issuance of Defendants’ requested stay would also disserve the
public interest. Defendants contend that “[i]n cases involving the
government, the harm to the government and the public interest merge.”
23
Any injury to Defendants is also “outweighed by [Plaintiffs’] strong likelihood
of success on the merits.” Freedom From Religion Found., Inc. v. Mack, 4 F.4th 306, 316 (5th
Cir. 2021) (collecting cases). Relatedly, if the vaccine requirements violate Plaintiffs’ First
Amendment rights—as they have demonstrated is likely at least under RFRA—then the
Navy’s claimed harm “is really ‘no harm at all.’” McDonald v. Longley, 4 F.4th 229, 254
(5th Cir. 2021) (quoting Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006)).
28
Case: 22-10077 Document: 00516220389 Page: 29 Date Filed: 02/28/2022
29a
No. 22-10077
That is mistaken. Those factors merge “when the Government is the
opposing party[,]” i.e., when the government is not the party applying for a
stay. Nken, 556 U.S. at 435, 129 S. Ct. 1762. Here the government
Defendants are applying for a stay and Plaintiffs are the opposing party. The
public interest factor is therefore distinct. At any rate, “injunctions
protecting First Amendment freedoms are always in the public interest.”
Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013)
(quoting Christian Legal Soc’y, 453 F.3d at 859).
III. Conclusion
The motion by Defendants for a partial stay of the preliminary
injunction pending appeal is DENIED.
29
Case: 22-10077 Document: 00516220395 Page: 1 Date Filed: 02/28/2022
30a
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE,
Suite 115
NEW ORLEANS, LA 70130
February 28, 2022
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 22-10077 U.S. Navy SEALs 1-26 v. Biden
USDC No. 4:21-CV-1236
Enclosed is the opinion entered in the case captioned above.
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________
Nancy F. Dolly, Deputy Clerk
504-310-7683
Mr. Michael Berry
Mr. Justin E. Butterfield
Ms. Sarah Wendy Carroll
Ms. Marleigh D. Dover
Mr. David J. Hacker
Ms. Heather Gebelin Hacker
Mr. Jeffrey Carl Mateer
Ms. Karen S. Mitchell
Mr. Jordan E Pratt
Ms. Holly Mischelle Randall
Mr. Casen Ross
Mr. Hiram Stanley Sasser III
Mr. Charles Wylie Scarborough
Mr. Kelly J. Shackelford
Mr. Andrew Bowman Stephens
Mr. Lowell V. Sturgill Jr.
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 1 of 26 PageID 2540
31a
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NAVY SEALs 1-26, et al., §
§
Plaintiffs, §
§
v. § Civil Action No. 4:21-cv-01236-O
§
JOSEPH R. BIDEN, JR., et al., §
§
§
Defendants. §
ORDER ON PRELIMINARY INJUNCTION
Our nation asks the men and women in our military to serve, suffer, and sacrifice. But we
do not ask them to lay aside their citizenry and give up the very rights they have sworn to protect.1
Every president since the signing of the Religious Freedom Restoration Act has praised the men
and women of the military for their bravery and service in protecting the freedoms this country
guarantees.2
In this case, members of the military seek protection under those very freedoms. Thirty-
five Navy Special Warfare servicemembers allege that the military’s mandatory vaccination policy
violates their religious freedoms under the First Amendment and Religious Freedom Restoration
Act. The Navy provides a religious accommodation process, but by all accounts, it is theater. The
Navy has not granted a religious exemption to any vaccine in recent memory. It merely rubber
stamps each denial. The Navy servicemembers in this case seek to vindicate the very freedoms
1
George Washington wrote in 1775 that “When we assumed the Soldier, we did not lay aside the Citizen.”
Those words are carved into the marble of the Memorial Amphitheater in the Arlington National Cemetery.
2
See President William Clinton, Remarks at the Veterans Day National Ceremony (Nov. 11, 1999);
President George W. Bush, Remarks at the Veterans Day Proclamation (Oct. 30, 2001); President Barack
Obama, Remarks at the Veterans Day National Ceremony (Nov. 11, 2009); President Donald Trump,
Remarks at the New York City Veterans Day Parade Address (Nov. 11, 2019); President Joseph Biden,
Remarks at the National Veterans Day Observance (Nov. 11, 2021).
1
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 2 of 26 PageID 2541
32a
they have sacrificed so much to protect.3 The COVID-19 pandemic provides the government no
license to abrogate those freedoms. There is no COVID-19 exception to the First Amendment.
There is no military exclusion from our Constitution.
Having considered the briefing, oral argument, relevant facts, and applicable law, the Court
concludes that Plaintiffs’ Motion for Preliminary Injunction should be and is hereby GRANTED.
I. BACKGROUND
This case arises from the United States Navy’s mandatory COVID-19 vaccination policy.
Plaintiffs are thirty-five Navy Special Warfare servicemembers, including SEALs, Special
Warfare Combatant Craft Crewmen, Navy Divers, and an Explosive Ordinance Disposal
Technician. Compl. 1, 8–9, ECF No. 1. Together, they sue President Biden, Secretary of Defense
Austin, Secretary of the Navy Del Toro, and the United States Department of Defense.
A. Factual Background
1. The Navy’s Vaccination Policy
In August 2021, the Department of Defense (“DoD”) issued a vaccine mandate directing
all DoD servicemembers to be vaccinated against COVID-19. Pls.’ App. 146–47, ECF No. 17.
The Department of the Navy also implemented its own mandate requiring all active-duty Navy
servicemembers to be fully vaccinated before November 28 or face the “full range” of disciplinary
action. Pls.’ App. 149–50, ECF No. 17. For servicemembers assigned to Special Operations duty,
the Navy’s vaccination policy reads:
[Special Operations] personnel 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.
3
Before the Court are the Plaintiffs’ Motion for Preliminary Injunction (ECF No. 15), filed November 24,
2021; Defendants’ Response (ECF No. 43), filed December 10; and Plaintiffs’ Reply (ECF No. 58), filed
December 17. The Court held a hearing on the matter on December 20. ECF No. 61.
2
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 3 of 26 PageID 2542
33a
Manual of the Medical Department (“MANMED”) § 15-105(3)(n)(9); Pls.’ App. 838, ECF No.
17. In addition to those with medical exemptions, “[m]embers who are actively participating in
COVID-19 clinical trials are exempted from mandatory vaccination” until the trial concludes. Pls.’
App. 149–50, ECF No. 17.
For those with pending religious exemption requests, being “disqualified” means becoming
permanently nondeployable.4 Unlike those with medical exemptions and allergies to the vaccine,
an unvaccinated servicemember seeking a religious exemption (the “religious servicemember”)
continues to be nondeployable, even if he receives the accommodation he requests. Pls.’ App. 159,
838 (Trident Order 12 – Mandatory Vaccination for COVID-19), ECF No. 17. To regain his
“deployable” status, the religious servicemember must first receive his religious accommodation,
and then seek a medical waiver under the Navy’s MANMED. Defs.’ App. 278, ECF No. 44-3.
Each of these steps, by themselves, is monumental. Religious exemptions to the vaccine
requirement are virtually non-existent. In the past seven years, the Navy has not granted a religious
exemption to any vaccine requirement. Pls.’ App. 295, ECF No. 17.
2. Plaintiffs’ Religious Accommodations Requests
By early November, 99.4% of active-duty Navy servicemembers had been fully vaccinated
against COVID-19. Pls.’ App. 284, ECF No. 17. Plaintiffs are part of the remaining 0.6%.
Representing the Catholic, Eastern Orthodox, and Protestant branches of Christianity, Plaintiffs
object to receiving the COVID-19 vaccine based on their religious beliefs. Id. These beliefs fall
into the following categories: (1) opposition to abortion and the use of aborted fetal cell lines in
4
See Decl. of SEALs 1–19, 21–26, Pls.’ App. 870–980; Decl. of SWCC 1–5, App. 981–1003; Decl. of
EOD 1, App. 1016–22; Decl. of ND 1–3, App. 1004–15.
3
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 4 of 26 PageID 2543
34a
development of the vaccine;5 (2) belief that modifying one’s body is an afront to the Creator;6 (3)
direct, divine instruction not to receive the vaccine;7 and (4) opposition to injecting trace amounts
of animal cells into one’s body.8 Plaintiffs’ beliefs about the vaccine are undisputedly sincere, and
it is not the role of this Court to determine their truthfulness or accuracy. See Davis v. Fort Bend
Cnty., 765 F.3d 480, 478 (5th Cir. 2014) (citing United States v. Ballard, 322 U.S. 78, 86 (1944)).
Plaintiffs filed their religious accommodation requests as early as August and as late as
December. See Supp. Decl. of SEALs, SWCC, EOD, ND, Supp. App. 1023–1134. In many cases,
the Plaintiffs’ commanding officers recommended their requests be approved. See Supp. Decl. of
SEAL 18, Supp. App. 1075; Hr’g Test. of SEAL 3. Even so, as of December 17, the Navy has
summarily denied at least twenty-nine of the thirty-five accommodations requests, the majority of
which have been appealed. Supp. Decl. of SEALs, SWCC, EOD, ND, Supp. App. 1023–1134. The
Navy has made no final determinations on appeal.
To adjudicate a religious accommodation request, the Navy uses a six-phase, fifty-step
process. See Supp. Decl. of Andrew Stephens, Ex. 1, ECF No. 62. Although “all requests for
accommodation of religious practices are assessed on a case-by-case basis,” Phase 1 of the Navy
guidance document instructs an administrator to update a prepared disapproval template with the
requester’s name and rank. Id. Based on this boilerplate rejection, Plaintiffs believe that this
process is “pre-determined” and sidesteps the individualized review required by law. Id.
5
See Decl. of SEALs 1–3, 5, 6, 8–15, 17–19, 21–24, 26, App. 871–84, 890–97, 903–37, 944–72, 978–80;
Decl. of SWCC 1–4, App. 981–1003; Decl. of EOD 1, App. 1016–22; Decl. of ND 2, App. 1009–11.
6
See Decl. of SEAL 5, 9–11, 13–15, 18, 22, 25, 26, App. 890–93, 909–20, 926–37, 948–51, 961–64, 974–
80; Decl. of SWCC 1, 5, App. 982–85, 1000–03; Decl. of EOD 1, App. 1016–22; Decl. of ND 1, 3, App.
1004–07, 1013–15.
7
See Decl. of SEAL 7 and 19, App. 899–900, 954.
8
See Decl. of SEAL 13, App. 927; Decl. of EOD 1, App. 1018.
4
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 5 of 26 PageID 2544
35a
B. Procedural History
On November 9, 2021, Plaintiffs filed this lawsuit challenging the Navy’s vaccination
mandate. See Compl. 38, ECF No. 1. In response to the Court’s order for a status report, Plaintiffs
filed their Motion for Preliminary Injunction (ECF No. 15), on November 24, 2021. Defendants
responded on December 10. See Defs.’ Resp., ECF No. 43. Plaintiffs filed their reply December
17. See Pls.’ Reply, ECF No. 58. The parties presented evidence and arguments before the Court
in a hearing on December 20. See ECF No. 61. Accordingly, the Motion is now ripe for the Court’s
review.
II. LEGAL STANDARD
A preliminary injunction is an “extraordinary remedy” and will be granted only if the
movants carry their burden on all four requirements. Nichols v. Alcatel USA, Inc., 532 F.3d 364,
372 (5th Cir. 2008). The Court may issue a preliminary injunction if the movants establish (1) a
substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm; (3) that
the balance of hardships weighs in the movants’ favor; and (4) that the issuance of the preliminary
injunction will not disserve the public interest. See Daniels Health Servs., L.L.C. v. Vascular
Health Scis., L.L.C., 710 F.3d 579, 582 (5th Cir. 2013); see also Fed. R. Civ. P. 65. “The decision
to grant or deny a preliminary injunction is discretionary with the district court.” Miss. Power &
Light Co. v. United Gas Pipe Line, 760 F.2d 618, 621 (5th Cir. 1985).
The movants must make a clear showing that the injunction is warranted, and the issuance
of a preliminary injunction “is to be treated as the exception rather than the rule.” Miss. Power &
Light, 760 F.2d at 621. “Only in rare instances is the issuance of a mandatory preliminary
injunction proper.” Harris v. Wilters, 596 F.2d 678, 680 (5th Cir. 1979) (per curiam).
5
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 6 of 26 PageID 2545
36a
III. ANALYSIS
Plaintiffs ask the Court to enjoin Defendants from enforcing the vaccination policy, which
they say violates RFRA and the First Amendment. Mot. 2, ECF No. 15; Pls.’ Br. 2, ECF No. 16.
They also assert that the Defendants’ permanent medical-disqualification policy fails strict
scrutiny. Defendants contend that Plaintiffs have not exhausted their intra-military remedies and
that their claims are nonjusticiable. Even if these claims are reviewable, Defendants argue, a
preliminary injunction would be inappropriate, because Plaintiffs are unlikely to succeed on the
merits of their claims.
A. Jurisdiction and Reviewability
There are two threshold questions before the Court. The first is whether this Court has
jurisdiction over the parties, and the second is whether Plaintiffs’ claims are justiciable under the
Mindes test.
1. Relief Against President
Citing Newdow v. Roberts, Defendants argue this Court lacks jurisdiction to enjoin the
President. 603 F.3d 1002, 1013 (D.C. Cir. 2010) (“With regard to the President, courts do not have
jurisdiction to enjoin him and have never submitted the President to declaratory relief.” (citation
omitted)). “[W]e cannot issue a declaratory judgment against the President. It is incompatible with
his constitutional position that he be compelled personally to defend his executive actions before
a court.” Franklin v. Massachusetts, 505 U.S. 788, 827 (1992) (Scalia, J., concurring in part).
Defendants are correct. This Court has no declaratory or injunctive power against President Biden,
and he is therefore DISMISSED as party to this case.
2. Justiciability Under Mindes
Defendants also argue that this case is nonjusticiable because Plaintiffs have not exhausted
military remedies, and because they seek to have the Court intrude on internal military affairs. All
6
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 7 of 26 PageID 2546
37a
Plaintiffs have submitted religious accommodation requests. The Navy has denied twenty-nine of
those requests. It has granted none. Defendants say the Court must wait for the Navy to decide
each request.
As explained below, the record indicates the denial of each request is predetermined. As a
result, Plaintiffs need not wait for the Navy to engage in an empty formality. In addition, whether
the vaccine mandate violates Plaintiffs’ First Amendment rights is a legal question well suited for
the courts, not the Navy’s administrative process. The Court finds that exhaustion is futile and will
not provide complete relief, and therefore the case is justiciable.
Generally, courts refrain from reviewing internal military affairs. The rationale is simple:
“[J]udges are not given the task of running the Army,” or, in this case, the Navy. Orloff v.
Willoughby, 345 U.S. 83, 93 (1953). Some military issues, however, are appropriate for judicial
review. The Fifth Circuit has developed a test to determine whether a given military issue is
justiciable, and appropriate for judicial review. That test first requires plaintiffs to pass a two-part
threshold test by showing (1) “an allegation of the deprivation of a constitutional right, or an
allegation that the military has acted in violation of applicable statutes or its own regulations,” and
(2) “exhaustion of available intraservice corrective measures.” Mindes v. Seaman, 453 F.2d 197,
201 (5th Cir. 1971). Then, if both criteria are met, the Court weighs four factors to determine
whether the issue is justiciable: (1) the nature and strength of the plaintiffs’ challenge; (2) the
potential injury to the plaintiffs if review is refused; (3) the type and degree of anticipated
interference with the military function; and (4) the extent to which the exercise of military
expertise or discretion is involved. Id. at 201–02.
Before applying the Mindes test, the Court addresses Plaintiffs’ argument that Mindes does
not apply to RFRA. Plaintiffs suggest that applying Mindes here effectively reads an exhaustion
7
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 8 of 26 PageID 2547
38a
requirement into RFRA. See Pls.’ Reply 7–8, ECF No. 58. Plaintiffs confuse statutory exhaustion
and judge-made exhaustion. When a statute imposes an exhaustion requirement, “Congress sets
the rules.” Ross v. Blake, 578 U.S. 632, 639 (2016). Courts simply apply the text. They may not
“add unwritten limits” or exceptions to the statute’s “rigorous textual requirements.” Id. If RFRA
had an exhaustion requirement, the Court would apply it. But “judge-made exhaustion doctrines,”
such as Mindes, are different. Id. The military exhaustion requirement in Mindes is a longstanding
prudential doctrine that applies to constitutional, statutory, and regulatory claims involving “an
‘internal military decision.’” Meister v. Tex. Adjutant Gen.’s Dep’t, 233 F.3d 332, 340 (5th Cir.
2000). The out-of-circuit cases Plaintiffs cite are unpersuasive. They discuss whether RFRA
requires exhaustion,9 or whether certain RFRA claims satisfy prudential ripeness analysis.10 They
do not analyze whether Mindes, a “judicial abstention doctrine” for military issues, applies to
RFRA. Id. at 339. Plaintiffs challenge internal military decisions, so, in this Circuit, the Court must
apply Mindes.
a. The Two-Part Threshold Test
Having determined that Mindes applies, the Court turns to the two-part threshold test.
Defendants agree that Plaintiffs satisfy the first part—they have alleged deprivation of their First
Amendment rights and violations under RFRA. See Defs.’ Resp. 24, ECF No. 43. The parties
dispute the second part—whether Plaintiffs have exhausted their military remedies.
The military exhaustion requirement is like other judge-made exhaustion doctrines. “The
major purpose of the exhaustion doctrine is to prevent the courts from interfering with the
9
Singh v. Carter, 168 F. Supp. 3d 216, 226 (D.D.C. 2016) (“RFRA certainly provides no textual support
for the defendants’ position that the plaintiff is required to exhaust administrative remedies . . . .”).
10
Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012) (declining
“to read an exhaustion requirement into RFRA” for free exercise claims against the Drug Enforcement
Administration).
8
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 9 of 26 PageID 2548
39a
administrative process until it has reached a conclusion.” Von Hoffburg v. Alexander, 615 F.2d
633, 637 (5th Cir. 1980). Military exhaustion is a matter of comity between the branches, “to
maintain the balance between military authority and the power of federal courts.” Id. Application
of the exhaustion requirement is therefore fact-intensive, requiring “an understanding of its
purposes and of the particular administrative scheme involved.” McKart v. United States, 395 U.S.
185, 193 (1969). In contrast to statutory exhaustion requirements, “judge-made exhaustion
doctrines, even if flatly stated at first, remain amenable to judge-made exceptions.” Ross, 578 U.S.
at 639. The Fifth Circuit has identified at least four such exceptions to military exhaustion: futility,
inadequacy of administrative remedies, irreparable injury, and a substantial constitutional
question. Von Hoffburg, 615 F.2d at 638.
First, plaintiffs need not exhaust military remedies “when resort to the administrative
reviewing body would be futile.” Hodges v. Callaway, 499 F.2d 417, 420 (5th Cir. 1974). They
are required to exhaust only those remedies that would “provide a real opportunity for adequate
relief.” Id. For example, exhaustion is “obviously” futile when the administrative body does not
have the authority to grant the relief sought. Id. at 420–21. In that situation, military relief is a legal
impossibility. Similarly, exhaustion may be futile when military relief will not “obviate the need
for judicial review.” Id. at 423. Although that “is not usually a reason for bypassing” the exhaustion
requirement, id., when the record all but compels the conclusion that the military process will deny
relief, “exhaustion is inapposite and unnecessary,” id. at 420.
The facts overwhelmingly indicate that the Navy will deny the religious accommodations.
The Navy has denied twenty-nine of Plaintiffs’ thirty-five accommodations requests.11 Outside of
Plaintiffs’ requests, the Navy has, to date, never granted a religious accommodation request for the
11
Supp. Decl. of SEALs, SWCC, EOD, ND, Supp. App. 1023–1134.
9
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 10 of 26 PageID 2549
40a
COVID-19 vaccine.12 In fact, in the past seven years, the Navy has never granted a single religious
exemption for any vaccine.13 Several Plaintiffs have been directly told by their chains of command
that “the senior leadership of Naval Special Warfare has no patience or tolerance for service
members who refuse COVID-19 vaccination for religious reasons and wants them out of the SEAL
community.”14
The Navy’s accommodation process confirms those fears. The Navy uses a fifty-step
process to adjudicate religious accommodation requests.15 Under the standard operating
procedures for the process, the first fifteen steps require an administrator to update a prepared
disapproval template with the requester’s name and rank. In essence, the Plaintiffs’ requests are
denied the moment they begin. That prepared letter is then sent to seven offices for review. After
those offices review the disapproval letter, the administrator packages the letter with other
religious accommodation requests for final signature. The administrator then prepares an internal
memo to Vice Admiral John Nowell, asking him to “sign . . . letters disapproving immunization
waiver requests based on sincerely held religious beliefs.”16
Then, at step thirty-five of the process, the administrator is told—for the first time—to read
through the religious accommodation request. At that point, the disapproval letter has already been
written, the religious accommodation request and related documents has already been reviewed by
several offices, the disapproval has already been packaged with similar requests, and an internal
memo has already been drafted requesting that Vice Admiral Nowell disapprove the religious
accommodation request. The administrator is then tasked with reading the request and recording
12
Id.
13
Pls.’ App. 295, ECF No. 17.
14
Id. at 879.
15
See Supp. Decl. of Andrew Stephens, Ex. 1, ECF No. 62.
16
See id.
10
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 11 of 26 PageID 2550
41a
any pertinent information in a spreadsheet. At no point in the process is the administrator given
the opportunity to recommend anything other than disapproval. The materials are then sent to Vice
Admiral Nowell. The entire process belies the manual’s assertion that “[e]ach request is evaluated
on a case by case basis.”17
Defendants argue that the process is not futile. They say, “The fact that Plaintiffs may not
anticipate a favorable outcome does not render the remedies futile.” Defs.’ Resp. 25, ECF No. 43.
That dramatically understates the record. At the preliminary injunction hearing, counsel for
Defendants suggested that exhaustion is not futile so long as the Navy has not denied the request.
But that the Navy could hypothetically grant a request does not, on this record, “provide a real
opportunity for adequate relief.” Hodges, 499 F.2d at 420. Plaintiffs need not exhaust military
remedies when doing so would be futile.
Second, plaintiffs need not exhaust military remedies when “available administrative
remedies are inadequate” to grant him the relief he seeks. Von Hoffburg, 615 F.2d at 640. The
inadequacy exception and futility exception sometimes overlap. For example, “an administrative
remedy may be inadequate where the administrative body is shown to be biased or has otherwise
predetermined the issue before it.” McCarthy v. Madigan, 503 U.S. 140, 148 (1992). That the Navy
has predetermined denial of the religious accommodations may indicate that the administrative
process is both inadequate and futile. But the Fifth Circuit has distinguished the two exceptions.
See Von Hoffburg, 615 F.2d at 640. That distinction is particularly salient here.
Even if the religious accommodations are granted, Plaintiffs will not receive the relief they
seek. Again, the record is replete with examples. Those who receive religious accommodations are
still “medically disqualified.”18 That means Plaintiffs would be permanently barred from
17
See id.
18
Pls.’ App. 159, 838, ECF No. 17.
11
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 12 of 26 PageID 2551
42a
deployment, denied the bonuses and incentive pay that accompany deployment, and deprived of
the very reason they chose to serve in the Navy.19 By contrast, those receiving medical
accommodations are not medically disqualified—they receive equal status as those who are
vaccinated.20 Some Plaintiffs were told by their chains of command that if their religious
accommodations were approved, they would lose their SEAL Tridents.21 Others will lose their
Tridents merely for requesting the exemption.22 Evidently, even successfully exhausting the
religious accommodation process would not grant Plaintiffs the relief they seek. In some instances,
it may invite more harm. At best, the available remedies would accord Plaintiffs second-class
status in a peerless community. Thus, the available administrative remedies are inadequate.
The Fifth Circuit has discussed two more exceptions to the exhaustion requirement. These
last two exceptions overlap somewhat with the first and second factors of the Mindes test, so the
Court merely outlines them here. The third exception is that “exhaustion is not required when the
petitioner may suffer irreparable injury if he is compelled to pursue his administrative remedies.”
Von Hoffburg, 615 F.2d at 638. That resembles the second Mindes factor, which considers “[t]he
potential injury to the plaintiff if review is refused.” Mindes, 453 F.2d at 201. The fourth exception
to exhaustion is when “the plaintiff has raised a substantial constitutional question.” Von Hoffburg,
615 F.2d at 638. That inquiry raises the same issues as the first Mindes factor, the “nature and
strength of the plaintiff’s challenge to the military determination,” which generally favors review
of substantial constitutional questions. Mindes, 453 F.2d at 201. The Court discusses these issues
in greater detail in the next section. Here, the Court simply notes that to the extent the analysis on
19
Id. at 928–29.
20
Id. at 159, 838.
21
E.g., id. at 906, 1021.
22
E.g., id. at 892, 900.
12
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 13 of 26 PageID 2552
43a
those factors weighs in favor of judicial review, it also favors excusing the military exhaustion
requirement.
At least four recognized exceptions to the exhaustion requirement apply. If one is
insufficient, the combination of the four readily supports the Court’s finding that the traditional
justifications for military exhaustion are not served by the Navy’s religious accommodation
process. Plaintiffs have therefore satisfied parts one and two of the threshold Mindes test.
b. The Four Mindes Factors
Having passed the threshold test, Plaintiffs must next show that the four Mindes factors
weigh in favor of justiciability. The factors are (1) the nature and strength of the plaintiff’s
challenge; (2) the potential injury to the plaintiff if review is refused; (3) the type and degree of
anticipated interference with the military function; and (4) the extent to which the exercise of
military expertise or discretion is involved. Mindes, 453 F.2d at 201–02.
First, the nature and strength of Plaintiffs’ claims weigh in favor of judicial review. As to
the nature of the claim, “[c]onstitutional claims [are] normally more important than those having
only a statutory or regulatory base.” Id. at 201–02. But “not all constitutional claims are to be
weighed equally.” NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir. 1980). Courts tend to favor
review of constitutional claims “founded on infringement of specific constitutional rights, such as
the Fifth Amendment privilege against self-incrimination or the First Amendment freedoms of
speech and press,” as opposed to constitutional claims that, for example, “a serviceman’s due
process rights were violated by arbitrary and capricious official action.” Id. Plaintiffs move for a
preliminary injunction based on specific violations of their constitutional rights under the Free
13
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 14 of 26 PageID 2553
44a
Exercise Clause, plus similar violations of RFRA. Plaintiffs’ claims are squarely in the category
of claims most favorable to judicial review.23
Moreover, Plaintiffs’ claims are strong. “An obviously tenuous claim of any sort must be
weighted in favor of declining review.” Mindes, 453 F.2d at 201. The Court discusses the strength
of Plaintiffs’ claims in Section III.B as part of the preliminary injunction analysis. As a brief
preview, the vaccine mandate fails strict scrutiny. The mandate treats comparable secular activity
(e.g., medical exemptions) more favorably than religious activity. First, the Navy has granted only
secular exemptions—it has never granted a religious exemption from the vaccine. Second, even if
the Navy were to grant a religious exemption, that exemption would still receive less favorable
treatment than its secular counterparts. Those who receive religious exemptions are medically
disqualified. Those who receive medical exemptions are not. But the activity itself—forgoing the
vaccine—is identical. Given the irrationality of the mandate, “[i]t is unsurprising that such litigants
are entitled to relief.” Tandon v. Newsom, 141 S. Ct. 1294, 1298 (2021) (per curiam). Under the
first Mindes factor, the Plaintiffs have shown that the nature and strength of their claims weigh
strongly in favor judicial review.
Second, the potential injury to Plaintiffs if review is refused weighs in favor of judicial
review. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably
23
As mentioned in the previous section, that Plaintiffs raise substantial constitutional claims also warrants
excusing the military exhaustion requirement. See Von Hoffburg v. Alexander, 615 F.2d 633, 638 (5th Cir.
1980); see also, e.g., Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973) (excusing administrative
exhaustion because “[r]esolving a claim founded solely upon a constitutional right is singularly suited to a
judicial forum and clearly inappropriate to an administrative board”); Roe v. Shanahan, 359 F. Supp. 3d
382, 403 (E.D. Va. 2019) (excusing military exhaustion of due process and Administrative Procedure Act
claims because the Air Force Board for Correction of Military Records “cannot adjudicate a claim that the
Air Force’s policies and regulations themselves are unconstitutional or otherwise unlawful”), aff’d sub nom.
Roe v. Dep’t of Def., 947 F.3d 207 (4th Cir. 2020); Adair v. England, 183 F. Supp. 2d 31, 55 (D.D.C. 2002)
(excusing military exhaustion when “the gravamen of the plaintiffs’ claims revolves around constitutional
challenges based on the First Amendment’s Establishment and Free Exercise Clauses and the Fifth
Amendment’s Due Process Clause”), aff’d sub nom. In re Navy Chaplaincy, No. 19-5204, 2020 WL
11568892 (D.C. Cir. Nov. 6, 2020).
14
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 15 of 26 PageID 2554
45a
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). This
factor overlaps with the preliminary injunction analysis, so (again) the Court does not discuss it at
length here. Two points bear mention. First, Plaintiffs are currently suffering injury while waiting
for the Navy to adjudicate their requests. Plaintiffs have been declared nondeployable and suffer
withheld promotions and travel.24 In one egregious example, Navy SEAL 26 was approved for a
four-week program in Maryland to treat deployment-related traumatic brain injury.25 He told his
commanding officer that he could travel in his own vehicle to the medical facility, which did not
have a vaccine requirement for its patients. His commanding officer told him he was not allowed
to travel because he was unvaccinated. SEAL 26 missed the opportunity to receive treatment,
despite his pending religious accommodation request. Second, some Plaintiffs have suffered injury
because they submitted religious accommodation requests. Many Plaintiffs have been told that
merely requesting a religious accommodation will result in their removal from the Naval Special
Warfare community and loss of their Trident.26 Withholding judicial review is particularly illogical
when participation in the administrative process invites the very harm Plaintiffs seek to avoid.
Third, the type and degree of anticipated interference with the military function weighs in
favor of judicial review. “[I]f the interference would be such as to seriously impede the military in
the performance of vital duties, it militates strongly against relief.” Mindes, 453 F.2d at 201.
Defendants argue that judicial review would interfere with the military’s decisions regarding duty
assignments and medical fitness. See Defs.’ Resp. 28–30, ECF No. 43. But “[i]nterference per se
is insufficient since there will always be some interference when review is granted.” Mindes, 453
F.2d at 201. Over 99% of active-duty Navy servicemembers are fully vaccinated against COVID-
24
Pls.’ App. 876–1022, ECF No. 17.
25
Supp. Decl. of Navy SEAL 26 at 2, ECF No. 63.
26
E.g., Pls.’ App. 878–79, 892, 900, 906, 915, ECF No. 17.
15
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 16 of 26 PageID 2555
46a
19.27 Plaintiffs are part of a vanishingly small 0.6%. The Navy already provides secular
accommodations. Whether denying religious accommodations violates the First Amendment is a
distinct legal question that would not “seriously impede the military in the performance of vital
duties.” Id.
Fourth, the extent to which the exercise of military expertise or discretion is involved
weighs in favor of review. “Courts should defer to the superior knowledge and experience of
professionals in matters such as promotions or orders directly related to specific military
functions.” Mindes, 453 F.2d at 201–02. This is not a suit in which “commanding officers would
have to stand prepared to convince a civilian court of the wisdom of a wide range of military and
disciplinary decisions.” United States v. Shearer, 473 U.S. 52, 58 (1985). Neither does this case
involve “complex, subtle, and professional decisions as to the composition, training, equipping,
and control of a military force.” Chappell v. Wallace, 462 U.S. 296, 302 (1983) (citation and
internal quotation marks omitted). Whether the vaccine mandate passes muster under the First
Amendment and RFRA requires neither “military expertise or discretion.” Mindes, 453 F.2d at
201. It is a purely legal question appropriate for judicial review.
In sum, all four Mindes factors favor justiciability. To be sure, “courts must—at least
initially—indulge the optimistic presumption that the military will afford its members the
protections vouchsafed by the Constitution, by the statutes, and by its own regulations.” Hodges,
499 F.2d at 424. But they need not indulge that presumption to the point of absurdity. The record
overwhelmingly demonstrates that the Navy’s religious accommodation process is an exercise in
futility. Plaintiffs need not wait for the Navy to rubber stamp a constitutional violation before
27
Id. at 284.
16
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 17 of 26 PageID 2556
47a
seeking relief in court. And this is precisely the type of legal challenge that Mindes contemplates
is appropriate for the courts to decide. Plaintiffs’ claims are justiciable.
B. Plaintiffs are likely to succeed on the merits.
Having established that Plaintiffs’ claims are justiciable, the Court must consider the first
of the four requirements under the preliminary injunction standard: whether Plaintiffs have
established a “substantial likelihood of success on the merits.” Daniels Health Scis., 710 F.3d at
582. In their motion, Plaintiffs make two substantive claims. First, they allege the vaccine mandate
violates RFRA and the First Amendment. Second, they allege the mandate’s permanent medical-
disqualification provision fails strict scrutiny.
The Court concludes Plaintiffs are likely to succeed on both claims. Because the mandate
treats those with secular exemptions more favorably than those seeking religious exemptions, strict
scrutiny is triggered, and Defendants fail to show a compelling interest with respect to the
servicemembers before the Court.
1. Religious Freedom Restoration Act
Plaintiffs allege that the vaccine mandate substantially burdens their religious exercise
without satisfying the compelling interest required under RFRA. Defendants respond that even if
Plaintiffs’ beliefs are substantially burdened, the Navy has a compelling interest in keeping its
force fit and responsive to national security threats. And while Defendants assert that vaccination
is the least restrictive means to achieve this end, Plaintiffs suggest alternatives exist. The Court
concludes that Defendants have not demonstrated a compelling interest justifying the substantial
burden imposed on the Plaintiffs’ religious beliefs. Therefore, there is no need to discuss narrow
tailoring.
17
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 18 of 26 PageID 2557
48a
The Religious Freedom Restoration Act “was designed to provide very broad protection
for religious liberty.” Hobby Lobby, 573 U.S. 682, 706 (2014). Passed in 1993 with nearly
unanimous support, RFRA provides that the:
Government may substantially burden a person’s exercise of religion only if it
demonstrates that application of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.
42 U.S.C. § 2000bb-1. RFRA extends to the military, because under the text of the statute,
“government” includes any “branch, department, agency, instrumentality, and official (or other
person acting under color of law) of the United States.” Id. § 2000bb-2. Defendants do not dispute
this.
Defendants have substantially burdened Plaintiffs’ religious beliefs. The government
burdens religion when it “put[s] substantial pressure on an adherent to modify his behavior and to
violate his beliefs.” Thomas v. Rev. Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). That is
especially true when the government imposes a choice between one’s job and one’s religious
belief. See Sherbert v. Verner, 374 U.S. 398, 404 (1963). Here, Plaintiffs must decide whether to
lose their livelihoods or violate sincerely held religious beliefs. Because they will not compromise
these religious beliefs, Plaintiffs have been threatened with separation from the military and other
disciplinary action. Supp. App. 1032, 1096, 1107, 1126, ECF No. 59; Compl., Ex. 3, ECF No. 1-
3.
Because the Plaintiffs have demonstrated a substantial burden, Defendants must show that
this burden furthers a compelling interest using the least restrictive means.
Plaintiffs claim Defendants cannot demonstrate a compelling interest as to these particular
servicemembers. Although they acknowledge that preventing the spread of COVID-19 was, at one
time, a compelling interest, Plaintiffs argue that an indefinite state of emergency cannot justify this
18
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 19 of 26 PageID 2558
49a
compelling interest two years into the pandemic. Pls.’ Br. 23–24, ECF No. 16. In response,
Defendants argue that the Navy has a vital national security interest in keeping its force healthy
and ready to deploy. Because Plaintiffs are members of Special Operations teams, these individuals
must stay healthy to carry out highly specialized missions. Defs.’ Resp. 33, ECF No. 43.
Although “[s]temming the spread of COVID-19 is unquestionably a compelling interest,”
its limits are finite. Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). Courts must
“look beyond broadly formulated interests,” and instead consider the “asserted harm of granting
specific exemptions to particular religious claimants.” Hobby Lobby, 573 U.S. at 726–27 (cleaned
up) (internal quotations omitted). In other words, Defendants must provide more than a broadly
formulated interest in “national security.”28 They must articulate a compelling interest in
vaccinating the thirty-five religious servicemembers currently before the Court.
Without individualized assessment, the Navy cannot demonstrate a compelling interest in
vaccinating these particular Plaintiffs. By all accounts, Plaintiffs have safely carried out their jobs
during the pandemic. Prior to the vaccine mandate, at least six Plaintiffs conducted large-scale
trainings and led courses without incident. Supp. Decl. of SEALs 2–3, 7, 15; SWCC 1; EOD 1.
Despite Defendants’ dismissive remark that Plaintiffs’ roles “obviously are not amenable to
telework,” at least two Plaintiffs have routinely done so. Defs.’ Resp. 34, ECF No. 43; Supp. Decl.
of SEAL 12, SWCC 5; Supp. Decl. of SEAL 21. Eleven Plaintiffs successfully deployed. Supp.
Decl. of SEALs 4–6, 9, 13, 22–23, 26; SWCC 2, 4; EOD 1. The Navy even awarded one Plaintiff
28
Defendants cite an inapplicable case on the Religious Land Use and Institutionalized Persons Act to assert
that “RFRA must be applied ‘with particular sensitivity to security concerns.’” Defs.’ Resp. 32, ECF No.
43 (quoting Cutter v. Wilkinson, 544 U.S. 722, 723 (2005)). Defendants also cite nonbinding dicta for the
proposition that courts are “reluctant to interpret statutes in ways that allow litigants to interfere with the
mission of our nation’s military.” Lebron v. Rumsfeld, 670 F.3d 540, 557–58 (4th Cir. 2012). But as
previously discussed in the Mindes analysis, “[i]nterference per se is insufficient since there will always be
some interference when review is granted.” Mindes, 453 F.2d at 201.
19
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 20 of 26 PageID 2559
50a
the Joint Service Commendation Medal for “safely navigating restricted movement and distancing
requirements” under COVID-19 protocol in early 2020. Hr’g Test. of EOD 1, Hr’g Ex. 26.
Even if Defendants have a broad compelling interest in widespread vaccination of its force,
they have achieved this goal without the participation of the thirty-five Plaintiffs here. At least
99.4% of all active-duty Navy servicemembers have been vaccinated. Pls.’ App. 284, ECF No. 17.
The remaining 0.6% is unlikely to undermine the Navy’s efforts. Today, Plaintiffs present a lower
risk of infection and transmission than in the earlier days of the pandemic. Several Plaintiffs have
tested positive for antibodies, showing the presence of natural immunity. See Decl. of SEALs 10,
22; SWCC 2, 4; Supp. Decl. of SEAL 12. With a 99.4% vaccination rate, the Navy’s herd
immunity is at an all-time high. COVID-19 treatments are becoming increasingly effective at
reducing hospitalization and death. See Pfizer Novel COVID-19 Oral Antiviral Treatment Study,
Pls.’ App. 310.
Moreover, the Navy is willing to grant exemptions for non-religious reasons. Its mandate
includes carveouts for those participating in clinical trials and those with medical contraindications
and allergies to vaccines. Pls.’ App. 154–59. Because these categories of exempt servicemembers
are still deployable, a clinical trial participant who receives a placebo may find himself ill in the
high-stakes situation that Defendants fear. Defs.’ Resp. 34, 48, ECF No. 43. As a result, the
mandate is underinclusive. “Indeed, underinclusiveness . . . is often regarded as a telltale sign that
the government’s interest in enacting a liberty-restraining pronouncement is not in fact
‘compelling.’” BST Holdings, LLC v. Occupational Safety & Health Admin., 17 F.4th 604, 616
(5th Cir. 2021).
20
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 21 of 26 PageID 2560
51a
For these reasons, the Court finds that Defendants do not demonstrate a compelling interest
to overcome the Plaintiffs’ substantial burden. Without a compelling interest, the Court need not
address whether Defendants have used the least restrictive means.
2. First Amendment
The Court turns now to the Plaintiffs’ First Amendment claim. Plaintiffs argue that the
Navy’s mandate triggers strict scrutiny, because it is not neutral or generally applicable.
Defendants insist they have carried their burden to demonstrate their compelling interest and the
least restrictive means. The Court finds that for the same reasons Plaintiffs succeed on their RFRA
claim, they also prevail on their First Amendment claim.
To assess neutrality and general applicability, courts consider both the structure of the law
and any disparate outcomes it creates. “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 v. City of Phila., 141 S. Ct. 1868, 1877 (2021) (cleaned
up). “[G]overnment regulations are not neutral and generally applicable, and therefore trigger strict
scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more
favorably than religious exercise.” Tandon, 141 S. Ct. at 1296 (citing Roman Cath. Diocese of
Brooklyn, 141 S. Ct. at 67–68).
The Navy’s mandate is not neutral and generally applicable. First, by accepting individual
applications for exemptions, the law invites an individualized assessment of the reasons why a
servicemember is not vaccinated. See Pls.’ App. 153–55 (NAVADMIN 190/21) (describing the
exemption process and authority to grant exemption). Consequently, favoritism is built into the
mandate.
Second, the “comparable secular activity” includes refusing the vaccine for medical
reasons or participation in a clinical trial. These medically exempt, unvaccinated servicemembers
21
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 22 of 26 PageID 2561
52a
are immediately deployable while unvaccinated servicemembers with religious objections are not.
See MANMED § 15-105(3)(n)(9); Pls.’ App. 838. Defendants justify this discrepancy by
contrasting the number of requests: “Whereas there are only seven permanent medical exemptions
for all Navy and Reserve personnel from the COVID-19 immunization duty, there are more than
three thousand pending requests for a religious exemption . . . .” Defs.’ Resp. 35 (citation omitted).
But an influx of religious accommodation requests is not a valid reason to deny First Amendment
rights. No matter how small the number of secular exemptions by comparison, any favorable
treatment—in this case, deployability without medical disqualification—defeats neutrality. For
these reasons, the mandate triggers strict scrutiny under the First Amendment.
As discussed in Section III.B.1, Defendants fail to satisfy the compelling interest
requirement, so there is no need to consider least restrictive means. The Court will not repeat its
strict scrutiny analysis here. Plaintiffs have established a substantial likelihood of success on the
merits of their RFRA and First Amendment claims, satisfying the first requirement of the
preliminary injunction standard.
3. Medical-Disqualification Provision
The parties’ briefing on the medical-disqualification issue echoes the RFRA and First
Amendment analysis discussed at length in Sections III.B.1 and III.B.2 above. In short, the Court
finds that, for the same reasons Plaintiffs’ RFRA and First Amendment challenges to the mandate
itself succeed, Plaintiffs’ challenge to the medical-disqualification provision follows.
A servicemember with a religious accommodation is permanently medically disqualified
while a servicemember with a medical exemption is not. See MANMED § 15-105(3)(n)(9); Pls.’
App. 838. In other words, Plaintiffs—even if they were all to be granted religious accommodations
immediately—would remain nondeployable and would be forced to seek a medical waiver to have
this penalty removed. In short, this disparate treatment triggers strict scrutiny.
22
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 23 of 26 PageID 2562
53a
Defendants are unable to overcome strict scrutiny because they have not presented a
compelling interest, as explained in previous sections. Thus, Plaintiffs are substantially likely to
succeed on the merits of their medical-disqualification challenge.
C. Plaintiffs face a substantial threat of irreparable harm.
Under the second prong of the preliminary injunction standard, the movants must establish
a substantial threat of irreparable harm. Here, Plaintiffs argue they have suffered irreparable injury
based on (1) infringement of religious liberties; (2) their nondeployable status, which reduces pay
and advancement opportunities; and (3) the threat of court-martial and dishonor accompanying it.
Defendants claim that Plaintiffs’ harm is merely speculative because the religious exemption
requests have not been finally adjudicated. Defendants also argue that Plaintiffs have improperly
relied on BST Holdings, which applies only to civilian employment.
It is incorrect to say that Plaintiffs’ harm is merely speculative at this stage. Plaintiffs are
already suffering injury while waiting for the Navy to adjudicate their requests. In some cases,
Plaintiffs have suffered injury because they seek religious accommodation. Plaintiffs testify that
they have been barred from official and unofficial travel, including for training29 and treatment for
traumatic brain injuries;30 denied access to non-work activities, like family day;31 assigned
unpleasant schedules and low-level work like cleaning;32 relieved of leadership duties and denied
opportunities for advancement;33 kicked out of their platoons;34 and threatened with immediate
29
Supp. Decl. of SEAL 16, Supp. App. 1069; Supp. Decl. of SWCC 5, Supp. App. 1121.
30
Supp. Decl. of SEAL 3, Supp. App. 1032; Supp. Decl. of SEAL 26, ECF No. 63.
31
Supp. Decl. of SEAL 26, Supp. App. 1103.
32
Supp. Decl. of SEAL 21, Supp. App. 1084; Supp. Decl. of SEAL 25, Supp. App. 1100.
33
Supp. Decl. of SEAL 22, Supp. App. 1088; Supp. Decl. of SEAL 3, Supp. App. 1032; Supp. Decl. of
SWCC 4, Supp. App. 1118; Supp. Decl. of EOD 1, Supp. App. 1126.
34
Supp. Decl. of SEAL 21, Supp. App. 1084; Supp. Decl. of SEAL 25, Supp. App. 1100.
23
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 24 of 26 PageID 2563
54a
separation.35 At least one Plaintiff has received an email for enrollment in the TAP course, a
prerequisite for separation from the Navy.36
While significant and life-altering, these harms do not, by themselves, rise to the level of
irreparable injury. “In general, a harm is irreparable where there is no adequate remedy at law,
such as monetary damages.” Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011). As Defendants
note, even a general discharge from the military—the ultimate threat here—is not an irreparable
harm. See McCurdy v. Zuckert, 359 F.2d 491, 494 (5th Cir. 1966). No matter how remote the
possibility, Plaintiffs could be compensated for their losses. They could be reinstated with
backpay, retroactively promoted, or reimbursed for lost benefits like medical insurance and the GI
Bill.
But because these injuries are inextricably intertwined with Plaintiffs’ loss of constitutional
rights, this Court must conclude that Plaintiffs have suffered irreparable harm. Plaintiffs have
suffered the more serious injury of “infringement of their religious liberty rights under RFRA and
the First Amendment . . . .” Pls.’ Br. 28, ECF No. 16. The crisis of conscience imposed by the
mandate is itself an irreparable harm. See BST Holdings, 17 F.4th at 618; Sambrano v. United
Airlines, 19 F.4th 839, 842 (5th Cir. 2021) (Ho, J., dissenting) (citing Sampson v. Murray, 415
U.S. 61, 92 n.68 (1974)). “The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373 (plurality opinion).
The same is true of RFRA. Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th
Cir. 2012). Thus, any losses the Plaintiffs have suffered in connection with their religious
accommodation requests sufficiently demonstrate irreparable injury.
35
Supp. Decl. of SEAL 24, Supp. App. 1096; Supp. Decl. of SEAL 3, Supp. App. 1032; Supp. Decl. of
SWCC 1, Supp. App. 1107; Supp. Decl. of EOD 1, Supp. App. 1126.
36
Test. of SEAL 3, Hr’g Ex. 9.
24
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 25 of 26 PageID 2564
55a
Finally, Defendants allege that Plaintiffs’ reliance on BST Holdings is improper “as the
OSHA requirement at issue in that case applies to civilian employers, not service members.” Defs.’
Resp. 45, ECF No. 43. But the principle the Supreme Court articulated in Elrod v. Burns applies
broadly, and the Fifth Circuit has acknowledged that any loss of First Amendment freedom
satisfies the irreparable injury requirement, even in the national security context. See Def.
Distributed v. U.S. Dep’t of State, 838 F.3d 451, 457 (5th Cir. 2016).
Thus, the second requirement for injunctive relief has been satisfied.
D. The balance of hardships weighs in Plaintiffs’ favor, and the issuance
of the preliminary injunction will not disserve the public interest.
The final two elements of the preliminary injunction standard—the balance of the harms
and whether an injunction will disserve the public interest—must be considered together. “These
factors merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435
(2009). When balancing the harms, courts must consider whether the movant's injury outweighs
the threatened harm to the party whom they seek to enjoin. The public interest element is broader
in scope.
Plaintiffs seek to preserve the status quo. They argue the balance of harms tips in Plaintiffs’
favor, and an injunction is always in the public interest when it prevents deprivation of
constitutional rights. Pls. Br. 29, ECF No. 16; see Jackson Women’s Health Org. v. Currier, 760
F.3d 448, 458 n.9 (5th Cir. 2014). By contrast, Defendants claim that an injunction will cause the
Navy significant harm, including illness, hospitalization, and death among its ranks. Given the
public interest in military readiness and national defense, they argue, the injunction should be
denied.
This Court does not make light of COVID-19’s impact on the military. Collectively, our
armed forces have lost 80 lives to COVID-19 over the course of the pandemic. Defs.’ App. 263,
25
Case 4:21-cv-01236-O Document 66 Filed 01/03/22 Page 26 of 26 PageID 2565
56a
ECF No. 44-3. But the question before the Court is not whether a public interest exists. Rather,
this Court must address whether an injunction will disserve the public interest. An injunction does
not disserve the public interest when it prevents constitutional deprivations. Jackson Women’s
Health, 760 F.3d at 458 n.9.
The Plaintiffs’ loss of religious liberties outweighs any forthcoming harm to the Navy.
Even the direst circumstances cannot justify the loss of constitutional rights. Fortunately, the future
does not look so dire. Nearly 100% of the Navy has been vaccinated. Hospitalizations are rising at
a much slower rate than COVID-19 cases. COVID-19 treatments are becoming more effective and
widely available.
Thus, Plaintiffs have satisfied the final two requirements for preliminary injunction.
IV. CONCLUSION
For the reasons stated, the Motion for Preliminary Injunction is GRANTED. Defendants
are enjoined from applying MANMED § 15-105(3)(n)(9); NAVADMIN 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. Mot. 2–
3, ECF No. 15.
SO ORDERED on this 3rd day of January, 2022.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
26
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 1 of 10 PageID 3427
57a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NAVY SEALs 1-26, et al., §
§
Plaintiffs, §
§
v. § Civil Action No. 4:21-cv-01236-O
§
JOSEPH R. BIDEN, JR., et al., §
§
§
Defendants. §
ORDER
Before the Court are Defendants’ Motion for Stay (ECF No. 85), filed January 24, 2022;
Defendants’ Brief in Support (ECF No. 86), filed January 24; Plaintiffs’ Response (ECF No. 99),
filed January 31; and Defendants’ Reply (ECF No. 102), filed February 2. For the following
reasons, the Court DENIES the Motion for Stay.
I. BACKGROUND
Because the parties are well-acquainted with the facts of this case, the Court will not repeat
them at length here. On January 3, 2022, the Court granted Plaintiffs’ Motion for Preliminary
Injunction, enjoining enforcement of the Navy’s COVID vaccination policies against the thirty-
five Plaintiffs, who object to the vaccine on religious grounds. See ECF No. 66. Since then,
Plaintiffs have alleged that Defendants are violating the injunction by preventing some Plaintiffs
from attending training, receiving medical treatment, or returning to their job duties. See Mot. for
Order to Show Cause, ECF No. 95. Defendants claim that Plaintiffs’ allegations are meritless and
1
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 2 of 10 PageID 3428
58a
that Plaintiffs’ feared outcomes are speculative.1 See Defs.’ Resp. 6–12, ECF No. 110. Defendants
filed a Motion for Stay on January 24, 2022. ECF No. 85.
II. LEGAL STANDARD
Just as the preliminary injunction itself is an “extraordinary remedy,” staying a preliminary
injunction is similarly exceptional. “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) (internal
quotation marks omitted). Maintaining the status quo is “an important consideration in granting a
stay.” Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016) (quoting Dayton Bd. of Educ. v.
Brinkman, 439 U.S. 1358, 1359 (1978)). Courts must consider four factors in determining whether
to stay a preliminary injunction pending appeal:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on
the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the proceeding;
and (4) where the public interest lies.
Nken, 556 U.S. at 426. Like the preliminary injunction factors, “[t]he first two factors of the
traditional [stay] standard are the most critical.” Id. at 434.
III. ANALYSIS
Defendants seek 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.” Defs.’ Br. 5, ECF No. 86. Having considered the law and the parties’
briefing, the Court concludes that (1) Defendants have not successfully shown they are likely to
1
The Court does not address the merits of the Motion for Order to Show Cause (ECF No. 95) here but
mentions these developing facts as context for the following analysis.
2
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 3 of 10 PageID 3429
59a
succeed on the merits, and (2) Defendants are not likely to be irreparably injured without a stay.
Indeed, were the Court to grant the stay, Plaintiffs have shown they will face irreparable harm.
Finally, the public interest weighs in favor of preserving the constitutional rights of the Plaintiffs
and maintaining the status quo. For these reasons, the Court DENIES Defendants’ Motion for
Stay.
A. Likelihood of Success on the Merits
Defendants argue they are likely to succeed on the merits for two primary reasons: first,
because this case is not justiciable, and second, because this Court’s preliminary injunction relied
on a mistaken understanding of medical disqualification and the waiver process.
1. Justiciability of Plaintiffs’ Claims2
Defendants insist this case is not justiciable because decisions regarding assignment and
deployment are strictly within the scope of the Commander in Chief’s authority—not civilian
courts. Defs.’ Br. 12, ECF No. 86. In essence, the Court should not encroach on the decision-
making power of the military, even when servicemembers’ claims involve constitutional
challenges. Id. Finally, Defendants argue that “the Court erred in substituting its ‘own evaluation
of evidence for a reasonable evaluation’ by the military regarding the necessity of [the COVID
vaccination policy].” Defs.’ Br. 14, ECF No. 86 (quoting Rostker v. Goldberg, 453 U.S. 57, 68
(1981)).
As to justiciability, Plaintiffs point to the Court’s Mindes analysis. Plaintiffs argue they
need not exhaust military remedies because the Navy’s “case-by-case” analysis is predetermined
and invariably results in a denial letter. In response to Defendants’ claim that the Court must not
2
The Court’s Mindes analysis in the preliminary injunction covers this topic at length. See Order on Prelim.
Inj. 6–17, ECF No. 66. Nothing presented in the parties’ briefing on this Motion alters that analysis.
3
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 4 of 10 PageID 3430
60a
venture into military decisions, Plaintiffs insist that the Court’s order was a legal determination,
not a military policy. Pls.’ Resp. 8–9, ECF No. 99.
Military decisions involve complex and strategic factors. As a matter of practicality,
“courts are generally reluctant to review claims involving military duty assignments,” because
civilian judges lack military expertise. Harkness v. Sec’y of Navy, 858 F.3d 437, 443 (6th Cir.
2017); see Antonellis v. United States, 723 F.3d 1328, 1332 (Fed. Cir. 2013). Defendants
accurately state that civilian courts are unqualified to review “[t]he complex, subtle, and
professional decisions as to the composition, training, equipping and control of a military force.”
Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see Defs.’ Reply 4, ECF No. 102.
But this case does not present a question of military strategy or personnel placement.
“Whether the vaccine mandate passes muster under the First Amendment and RFRA requires
neither ‘military expertise or discretion.’ It is a purely legal question appropriate for judicial
review.” Order on Prelim. Inj. 16, ECF No. 66 (quoting Mindes v. Seaman, 453 F.2d 197, 201 (5th
Cir. 1971)). Defendants do not dispute that RFRA applies to the military. This Court has not
required Defendants to make any particular personnel assignments. All strategic decisions remain
in the hands of the Navy. Rather, the preliminary injunction simply prohibits adverse action against
Plaintiffs based on their requests for religious accommodation. This Court will not—and 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 action against that SEAL by blocking him from the
training program he would otherwise attend.
Even the Gilligan Court noted that “there is nothing in our Nation’s history or in [the
Supreme] Court’s decided cases . . . that actual or threatened injury by reason of unlawful activities
of the military would go unnoticed or unremedied.” Gilligan, 413 U.S. at 12 n.16 (quoting Laird
4
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 5 of 10 PageID 3431
61a
v. Tatum, 408 U.S. 1, 15–16 (1972)). The distinction between lawful and unlawful military
activities also appears in Orloff v. Willoughby, 345 U.S. 83, 93–95 (1953). There, the Supreme
Court declined to review a servicemember’s lawfully issued duty assignment. But it also
hypothesized that, had the servicemember been unlawfully diverted into a duty assignment for
which he was not conscripted, the Court may have had reason to review for bad faith and unlawful
discrimination. Id. at 87–88.
Defendants also briefly discuss Goldman v. Weinberger, in which a Jewish servicemember
challenged an Air Force regulation that prohibited him from wearing his yarmulke while on duty.
475 U.S. 503, 504–07 (1986). The Supreme Court deferred to the professional judgment of military
authorities regarding the unity of the force and concluded that the First Amendment did not afford
the servicemember an exception to the dress code. Id. at 510.
But in the vaccination context, courts have deviated from Goldman. When servicemembers
challenged mandatory anthrax vaccines, one court found the plaintiffs’ claims justiciable in
civilian court, even when vaccine refusal could “threaten the uniformity of the military.” Doe v.
Rumsfeld, 297 F. Supp. 2d 119, 126–29 (D.D.C. 2003) (“[H]ere there will be no visible differences
between persons who choose to receive the vaccine and those who choose not to receive the
vaccine. Thus, concerns about uniformity diminish and a judgment in this case would not affect
the uniformity of military personnel to any substantial degree.”). Moreover, unlike a yarmulke, a
vaccine cannot be added or removed at each shift change. For Plaintiffs, there is no way to partially
comply with their sincerely held religious beliefs. The choice to be vaccinated is both binary and
irreversible.
5
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 6 of 10 PageID 3432
62a
2. Medical Disqualification and Neutrality
Defendants also argue “the Court based its injunction, at least in part, on a mistaken finding
that ‘those receiving medical accommodations are not medically disqualified—they receive equal
status as those who are vaccinated.’” Defs.’ Br. 13, ECF No. 86 (quoting Order on Prelim. Inj. 11–
12, 14, ECF No. 66). Defendants submitted a declaration by Force Medical Officer Littlejohn
explaining that “a service member who receives an exemption or accommodation from the
COVID-19 vaccine requirement, whether for religious or secular reasons, is not [physically
qualified] unless he or she obtains a separate medical clearance.” Decl. of Littlejohn, Ex. 2, ECF
No. 87. In other words, Defendants claim the policies are neutral as to the reason behind the
servicemember’s objection such that the regulations do not trigger strict scrutiny.3
The core question under the First Amendment claim is whether the Defendants treat all
unvaccinated servicemembers neutrally. This issue then is only relevant to Plaintiffs’ First
Amendment claim, not the RFRA claim. Neutrality matters in this context because strict scrutiny
is triggered under the First Amendment when a regulation treats comparable secular activity more
3
Here is a brief summary of the conflicting interpretations: The text of Trident Order #12 “does not pertain
to medical contraindications or allergies to vaccine administration.” App. 99, ECF No. 44-1. Thus, the
provision applies only to those refusing the vaccine “based solely on personal or religious beliefs.” These
individuals “will still be medically disqualified.” Therefore, the “separate waiver” process that Trident
Order #12 describes appears to only apply to those with religious and personal, not medical, reasons.
Likewise, MANMED § 15-105 disqualifies unvaccinated special warfare servicemembers who base their
refusal on personal or religious beliefs. App. 229, ECF No. 44-2. And once again, the provision does not
apply to those with medical reasons for refusal. Based on this reading, someone with a medical exemption
would not need a separate medical waiver.
But according to the Force Medical Officer’s declaration, a medically exempt servicemember is deemed
NPQ: not physically qualified. Decl. of Littlejohn, Ex. 2, ECF No. 87. To return to PQ (physically qualified)
status, the servicemember must seek a waiver, just as someone with a religious accommodation would. But
besides general requirements for Special Operations in MANMED, the Force Medical Officer has not cited
direct language medically disqualifying (NPQ) an unvaccinated, but medically exempt, servicemember.
The Force Medical Officer notes, however, that “all requests for permanent medical exemptions from
COVID-19 vaccination for personnel falling under NSWC authority have been denied.” Decl. of Littlejohn,
Ex. 2, App. 37, ECF No. 87.
6
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 7 of 10 PageID 3433
63a
favorably than religious practice—in other words, the regulation is not neutral and generally
applicable. Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam). But because strict
scrutiny is required under RFRA, the Court need not resolve the neutrality issue to conclude that
the Plaintiffs are likely to succeed on the merits of the RFRA claim. Thus, Defendants’ Motion
will be denied as to the RFRA claim, and resolution of this issue and its impact on neutrality under
the First Amendment will be resolved at the merits stage.
For these reasons, the Court concludes that the case is justiciable and the Plaintiffs are
likely to succeed on the merits.
B. Irreparable Injury
Defendants warn of significant harm if the Court denies the stay. First, if forced to deploy
unvaccinated servicemembers, the Navy would face an elevated risk of COVID spread and
“catastrophic” results if a servicemember requires medical attention where healthcare resources
are scarce. Defs.’ Br. 7–9, ECF No. 86. Second, Defendants contend that the preliminary injunction
undermines discipline by allowing servicemembers “to define the terms of their own military
service.” Defs.’ Br. 11, ECF No. 86. Neither is sufficient evidence of irreparable harm to
Defendants.
1. Risk to the Mission
“Requiring the Navy to allow Plaintiffs to deploy while unvaccinated would pose serious
and specific threats to mission success.” Defs.’ Br. 7, ECF No. 86. Defendants explain that
unvaccinated servicemembers present a higher risk of contracting and transmitting COVID.
Because “[e]very member of a SEAL team is vital,” the Navy cannot afford to lose someone during
a critical mission. Defs.’ Br. 8, ECF No. 86 (quoting Decl. of Lescher, Ex. 1 ¶ 21, ECF No. 87).
7
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 8 of 10 PageID 3434
64a
Plaintiffs point to Defendants’ delay in requesting a stay, alleging “there is no apparent
urgency to the request for injunctive relief.” Pls.’ Resp. 13, ECF No. 99 (quoting Gonannnies, Inc.
v. Goupair.Com, Inc., 464 F. Supp. 2d 603, 609 (N.D. Tex. 2006)). Further, Plaintiffs allege that
Defendants are not even complying with the Injunction and thus cannot be experiencing harm.
They claim that any harm to the Navy is outweighed by harm to Plaintiffs.
Defendants have not provided sufficient evidence that the Navy will be irreparably injured
absent a stay. Vice Admiral Merz, deputy chief of naval operations, describes a highly effective
force despite the spread of the Omicron variant. Pls.’ App. 3–4, ECF No. 100. Even fully
vaccinated ships have experienced outbreaks, but “Omicron has a quick turn around and isn’t
causing severe illness in sailors.” Pls.’ App. 4, ECF No. 100. In short, “[Omicron] is coming and
going all the time, very small numbers, and really no operational impact.” Id. Defendants’ briefing
presents a much grimmer version of the facts. They argue that unvaccinated servicemembers will
derail missions, require medical attention where healthcare is limited, and jeopardize the health of
other servicemembers. Defs.’ Br. 7–9, ECF No. 86.
This Court is unconvinced that thirty-five unvaccinated Plaintiffs present an intolerably
high risk to their vaccinated peers who themselves continue to contract and transmit COVID.
Defendants provide an example that “unvaccinated instructors can spread COVID-19 to dozens of
candidates in training,” who will return to their units, further spreading the virus. Defs.’ Br. 10,
ECF No. 86. But suppose Plaintiffs were to agree to be vaccinated tomorrow. There is no guarantee
they will remain healthy and ready to deploy. A vaccinated instructor may still infect his students.
Regardless, vaccinated servicemembers are far more likely to encounter unvaccinated individuals
off-base among the general public than among their ranks.4
4
Only 64.3% of the U.S. population is fully vaccinated. CDC COVID Data Tracker,
https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-onedose-pop-5yr (last visited Feb. 12,
8
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 9 of 10 PageID 3435
65a
In short, Defendants have not provided sufficient evidence of risk rising to the level of
irreparable harm.
2. Discipline in the Ranks
Defendants also allege that the Court’s preliminary injunction “undercut[s] the
maintenance of military good order and discipline.” Defs.’ Br. 10, ECF No. 86. In his declaration,
Lieutenant Commander Andrew Petralia explains that Plaintiff Navy Diver 2 is a student assigned
to his command. Decl. of Petralia, Ex. 3, ECF No. 87. Diver 2 has “refused to submit to weekly
COVID-19 testing and claims that he will soon submit a separate religious accommodation request
to be excused from this requirement.” Defs.’ Br. 10, ECF No. 86 (citing Decl. of Petralia, Ex. 3 ¶
5, ECF No. 87).
The preliminary injunction is limited in scope. It enjoined the Defendants from applying
the vaccine mandate to the thirty-five Plaintiffs here and prohibited adverse action on the basis of
their religious accommodation requests. To be clear, if true, the behavior of Diver 2 is not within
the scope of the Order. In his declaration, Diver 2 asserted that he “view[s] his own life and the
lives of [his] fellow service members as sacred.” Decl. of U.S. Navy Diver 2, Supp. App. 1011,
ECF No. 59. He has consented to “mitigation measures consistent with [his] religious beliefs.” Id.
Diver 2, and Plaintiffs like him, are welcome to submit additional religious accommodation
requests, but they may not defy mitigation measures under the guise of following this Court’s
Order.
C. Other Factors
Finally, the Court considers the two remaining factors: (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding, and (4) where the public interest
2022). By contrast, at least 99.4% of active-duty Navy servicemembers are fully vaccinated. Pls.’ App. 284,
ECF No. 17.
9
Case 4:21-cv-01236-O Document 116 Filed 02/13/22 Page 10 of 10 PageID 3436
66a
lies. Having discussed the substantial injury to the Plaintiffs in the preliminary injunction, the
Court now briefly addresses the public interest question.
“When the Government is a party, its interests and the public interest overlap in the
balancing of harms.” Nken, 556 U.S. at 420. Plaintiffs seek to preserve the status quo. They argue
that protecting constitutional rights is always in the public interest. Pls. Resp. 15, ECF No. 99; see
Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014). Here, preserving
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. The Court
finds that the public interest supports a denial of the Motion for Stay.
IV. CONCLUSION
For the reasons stated, the Court DENIES Defendants’ Motion for Stay.
SO ORDERED on this 13th day of February, 2022.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
10
Case 4:21-cv-01236-O Document 17-2 Filed 11/24/21 Page 53 of 145 PageID 368
67a
Case 4:21-cv-01236-O Document 17-2 Filed 11/24/21 Page 54 of 145 PageID 369
68a
69a
Article 15-103 Manual of the Medical Department
consultations, followed by an explicit recommenda-
tion of “waiver recommended” or “waiver not recom-
mended” with supporting rationale. Any ongoing 15-105 Special Operations Duty
aftercare must be identified.
(1) Characteristics. Special operations (SO)
(2) DD Form 2807-1/2808, annotated to duty takes place in every part of the world under harsh
reflect individual’s pertinent findings. This may either conditions at the extremes of human physical
be a new nuclear field duty examination, a current capabilities. Medical austerity and the presence of
nuclear field duty examination, annotated as armed opposition are common. SO personnel, de-
necessary, or a focused examination documenting pending on service and warfare community, routinely
pertinent positives and negatives. Circumstances will engage in high-risk operations including parachuting,
dictate which format is most appropriate. high angle activities, high-speed boat and unconven-
tional vehicle operation, weapons operation, demoli-
(3) Copies of other, pertinent studies tions employment, and waterborne activities, to
supporting the waiver or disqualification. include SCUBA diving. As such, SO duty is among
the most physically and mentally demanding assign-
(4) Copies of pertinent, specialty con- ments in the U.S. military. Only the most physically
sultation clinical notes supporting the waiver or and mentally qualified personnel should be selected,
disqualification. and those who are or may be reasonably expected to
become unfit or unreliable must be excluded.
(5) Endorsement by the member’s com-
manding officer or sponsoring unit. This endorse- (2) Applicability. Current and prospective mem-
ment should be substantive and address whether the bers of the following communities (whether Navy,
condition or diagnosis/current condition impairs the U.S. non-Navy, or foreign national):
member’s performance of nuclear field duty and is
compatible with the operational environment. (a) Navy sea, air, and land personnel
(SEAL).
Note: Office codes, titles and contact numbers are current as of the
time of document release. It should be anticipated that these can (b) Special warfare combatant craft crew-
and will change prior to the next revision of this article.
men (SWCC).
(c) USMC Reconnaissance Marine (RE-
CON).
15-104 Occupational Exposure
(d) USMC Forces Special Operations Com-
mand (MARSOC); special operations officer (SOO),
to Ionizing Radiation critical skills operators (CSO), and Special Amphi-
bious Reconnaissance Corpsman (SARC).
(1) General. NAVMED P-5055, Radiation (e) Explosive ordnance disposal (EOD)
Health Protection Manual, is the governing document personnel.
for the Navy’s Radiation Health Protection Program.
To ensure that the requirements of NAVMED P-5055
Note: To be physically qualified for military parachuting (including
are met and to eliminate any potential for conflicting basic, military free-fall, and high altitude low opening), Army
guidance, the specific standards and examination pro- Regulation 40-501 (AR40-501), applies. Article 15-105 standards
cedures for occupational exposure to ionizing radia- are presumed to encompass AR40-501/5 standards; therefore, an
tion are found only in NAVMED P-5055, Chapter 2. individual meeting physical standards or possessing a valid waiver
for special operations duty from BUPERS-3 or PERS-416 is
The current version of NAVMED P-5055 is available medically qualified to participate in military parachuting.
on the Navy Medicine Web site at http://www.med.
navy.mil/directives/Pages/Publications.aspx.
15-82 Change 164 22 May 2018
70a
Physical Examinations and Standards Article 15-105
Note: SEAL, Navy EOD, and other SO personnel whose duties (d) DoD Type 2 Dental Exam
involve military diving or maintaining diving duty status must also (current within last 12 months).
be qualified under MANMED Chapter 15, article 15-102 (diving
duty). Personnel who are SO qualified but do not dive or require (e) Refraction, by autorefraction or
dive qualification are not required to be qualified under MANMED
Chapter 15, article 15-102. manifest, if uncorrected visual acuity (near and far) is
not 20/20 or better.
(3) Examinations (f) Color vision (per article 15-
36(1)(d)) (candidates only, upon program entry).
(a) Periodicity. Within 1 year of applica-
tion for initial training. Periodicity between exami- (g) Depth perception (per MAN-
nations will not exceed 5 years up to age 50. After age MED Chapter 15, article 15-85(1)(d)) (candidates
50, periodicity will not exceed 2 years, e.g., an only, upon program entry).
individual examined at age 46 would be re-examined
at age 51, an individual examined at age 47, 48, 49, or (h) Complete Blood Count.
50 would be re-examined at age 52. Beginning at age
60, the examination is required annually. Special (i) Fasting blood glucose.
operations duty examinations must be performed no
later than 1 month following the anniversary date (j) Urinalysis with microscopic
(month and year) of the previous physical exami- examination.
nation date. For example, for an examination per-
formed on a 20-year old on 15 February 2018, the next (k) Hepatitis C screening (current
examination must be completed by 31 March 2023. A per SECNAVINST 5300.30 series).
complete physical examination is also required prior
to returning to special operations duty after a period of (2) In addition to any applicable
disqualification. BUMEDINST 6230.15 series (Immunization and
Chemoprophylaxis) requirements, all special opera-
(b) Scope tions candidates and current operators must be immu-
nized against both Hepatitis A and B. Special Opera-
(1) The examination must consist of a tions candidates must have completed the Hepatitis A
completed, comprehensive DD Form 2807-1, Report and Hepatitis B series prior to the start of training. If
of Medical History and DD Form 2808, Report of documentation of completed immunization is lacking
Medical Examination with special attention to organ or in doubt, demonstration of serological immunity is
systems which affect the member’s ability to function sufficient to meet this requirement.
safely and effectively in the SO environment. The
examiner must comment specifically on presence or (c) Examiners. Examinations may be per-
absence of tympanic membrane movement with the formed by any physician, physician assistant, or nurse
Valsalva maneuver. The neurologic exam must be practitioner with appropriate DoD clinical privileges.
fully documented, with deep tendon reflexes noted on Examinations not performed by an undersea medical
a standard stick figure. officer (UMO) must be reviewed and co-signed by a
UMO. All reviewing authority signatures must be
(2) Within 3 months prior to the exam accompanied by the “UMO” designation. A UMO is
date the following must be accomplished (unless defined as a medical officer (or physician employed by
otherwise specified): DoD who previously served as a UMO) who has
successfully completed the entire UMO course con-
(a) Chest x-ray (PA and lateral) ducted by the Naval Undersea Medical Institute
(candidates only, upon program entry, and then as (NUMI), which includes the diving medical officer
clinically indicated). (DMO) course conducted at the Naval Diving and
Salvage Training Center (NDSTC), and who is curr-
(b) Electrocardiogram. ently privileged in undersea medicine. For the
purposes of this article, “mental health professional/
(c) Audiogram (current within last provider” refers to a doctoral-level provider (psychia-
12 months). trist/psychologist) unless otherwise indicated.
22 May 2018 Change 164 15-83
71a
Article 15-105 Manual of the Medical Department
(4) Standards. The standards delineated in this (5) Abnormalities precluding the com-
article define the conditions which are considered fortable use of required equipment, including head-
disqualifying for SO duty. The standards delineated in gear and earphones, are disqualifying.
MANMED Chapter 15, Section III (General Stan-
dards, some of which are restated below for emphasis) (6) Any laryngeal or tracheal frame-
are universally applicable to all SO duty candidates, work surgery is disqualifying.
unless specifically addressed in this article. UMOs,
based on their specialty training and subject matter (7) Hearing in the better ear must meet
expertise, are charged with applying the General accession standards as specified in MANMED article
Standards to qualified SO personnel when appropriate 15-38(2).
to ensure that they are physically and mentally ready
to perform their duties without limitation. (c) Dental
(a) General. Any condition or combination (1) All SO personnel must be DoD den-
of conditions which may be exacerbated by SO duty, tal classification 1 or 2.
impair the ability to safely and effectively work in the
SO environment, or increase potential for medical (2) Any chronic condition that necessi-
evacuation (MEDEVAC) is disqualifying. Any dis- tates frequent episodes of dental care is disqualifying.
ease or condition causing chronic or recurrent dis-
ability or frequent health care encounters, increasing (3) Need for any prosthesis or appli-
the hazards of isolation, or having the potential for ance the loss of which could pose a threat to hydration
significant exacerbation by extreme weather, stress, or nutrition is disqualifying.
hypobaric or hyperbaric environments, or fatigue is
disqualifying. Conditions and treatments causing a (d) Eyes and Vision
significant potential for disruption of operations are
disqualifying. Further, any condition, combination of (1) Corrected visual acuity worse than
conditions, or treatment which may confound the dia- 20/25 in either eye is disqualifying.
gnosis of a heat, cold, or brain injury is disqualifying.
(2) Uncorrected visual acuity worse
than 20/40 in the better eye is disqualifying for SEAL
Note: SO personnel reporting for duty following an absence of and SWCC.
greater than 14 days due to illness or injury, hospitalization for any
reason, or reported on by a medical board must have a properly
documented UMO evaluation to determine fitness for continued SO (3) Uncorrected visual acuity worse
duty. than 20/70 in either eye is disqualifying for SEAL and
SWCC.
(b) Ear, Nose, and Throat
(4) Uncorrected visual acuity worse
(1) Sleep apnea with cognitive impair- than 20/200 in either eye is disqualifying for EOD,
ment or daytime hypersomnolence is disqualifying. USMC RECON, and MARSOC.
(5) Visual acuity standards are not
(2) History of inner ear pathology or
waiverable for SEAL and SWCC candidates.
surgery, including but not limited to vertigo, Meni-
ere’s disease or syndrome, endolymphatic hydrops, or
(6) Deficient color vision, as defined by
tinnitus of sufficient severity to interfere with sat-
MANMED article 15-36(1)(d), is disqualifying.
isfactory performance of duties is disqualifying.
Waiver requests for color vision deficiency will not be
(3) Chronic or recurrent motion sick- considered for EOD personnel or candidates. Other
ness is disqualifying. special operation communities will consider waivers.
Waiver requests must include a statement from the
(4) External auditory canal exostosis or member’s supervisor stating that the member is able to
atresia that results in recurrent external otitis is perform his job accurately and without difficulty, and
disqualifying. provide evidence that primary and secondary colors
can be discerned.
15-84 Change 164 22 May 2018
72a
Physical Examinations and Standards Article 15-105
(7) Symptomatic or functional night (2) Traumatic pneumothorax is disqua-
vision deficiency is disqualifying. lifying. Waiver may be considered for candidates or
designated SO personnel under the following con-
(8) Lack of depth perception (i.e., not ditions:
meeting article 15-85, paragraph 1(d) standards) is
disqualifying. (a) Normal pulmonary function
testing.
(9) Photorefractive keratectomy, laser-
assisted in-situ keratomileusis (LASIK), LASEK, or (b) Normal standard non-contrast
intraocular lens implants (including Intraocular Coll- chest CT.
amer Lens Implants) within the preceding 3 months
are disqualifying for SO candidates only. Stable (c) Favorable recommendation
results from appliance or surgery must meet the from a pulmonologist with a disposition of “fit for full
applicable (paragraph 4(d)(1)-(4) of this article) cor- duty.”
rected visual acuity standards and the patient must be
discharged from ophthalmology follow-up with a (d) Final evaluation and approval
disposition of “fit for full duty” and requiring no by attending UMO.
ongoing treatment. Qualified SO Service members
may return to duty 1 month after refractive corneal or (3) Individuals with either positive tub-
intraocular lens implant surgery if they are fully erculin skin test (TST) or positive Interferon Gamma
recovered from surgery and have an acceptable visual Release Assay (IGRA) (e.g., QuantiFERON-TB Gold
outcome per paragraph 4(d)(1)-(4) of this article. No
test) must be removed from SO Duty pending further
waiver is required in these cases.
clinical investigation.
(10) Glaucoma is disqualifying. Pre- (a) Active tuberculosis is disquali-
glaucoma requiring no treatment and follow-up inter- fying; however, a waiver request will be considered
vals of 1 year or more is not disqualifying. upon completion of all treatments resulting in steri-
lization of the infectious lesion, and demonstration of
(11) Presence of a hollow orbital im- normal pulmonary function. Individuals diagnosed
plant is disqualifying. with latent tuberculosis infection (LTBI) are non-
infectious, but have the potential to progress to active
(12) Any acute or chronic recurrent disease.
ocular disorder which may interfere with or be aggra-
vated by blast exposure or repetitive deceleration such (b) LTBI is disqualifying for can-
as parachute opening or small boat maritime didates. A waiver request will be considered upon
operations is disqualifying. completion of all indicated LTBI therapy.
(13) Radial keratotomy is disqualifying. (c) Designated SO personnel diag-
nosed with LTBI will be evaluated by their attending
(14) Keratoconus is disqualifying. UMO. The UMO may return the individual to SO
Duty, without waiver, 8 weeks after initiating LTBI
(e) Pulmonary. Any chronic or recurring antibiotic therapy, provided the individual remains
condition which limits capacity for extremely stren- asymptomatic, is compliant with therapy and has no
uous aerobic exercise in extremes of temperature and adverse reaction to the medication(s). Completion of
humidity including, but not limited to, pulmonary treatment must be documented in the medical record.
fibrosis, fibrous pleuritis, lobectomy, neoplasia, or
infectious disease process, including coccidioido- (d) Foreign nationals participating
mycosis is disqualifying. in U.S. Navy SO training programs must be screened
for tuberculosis, and if indicated, receive documented
(1) Reactive airway disease or asthma treatment to the same standard as that of U.S.
after age 13, chronic obstructive or restrictive pul- nationals, prior to acceptance into training.
monary disease, active tuberculosis, sarcoidosis, and
spontaneous pneumothorax are disqualifying.
___ May 2018 Change 164 15-85
73a
Article 15-105 Manual of the Medical Department
(f) Cardiovascular. Any condition that fissure or external hemorrhoid) is not disqualifying if
chronically, intermittently, or potentially impairs ex- it responds to appropriate therapy and resolves within
ercise capacity or causes debilitating symptoms is 6 weeks.
disqualifying. Specific disqualifying conditions in-
clude, but are not limited to: (b) Any history of organ perfora-
tion.
(1) Cardiac dysrhythmia (single epi-
sode, recurrent, or chronic) other than 1st degree heart (c) Current or history of chronic or
block. Sinus bradycardia attributable to aerobic con- recurrent diarrhea, abdominal pain, incontinence, or
ditioning is a normal variant and is not disqualifying. emesis.
(2) Atherosclerotic heart disease. (2) Asplenia is disqualifying. Waiver
may be considered 1 year after splenectomy if the
(3) Pericarditis, chronic or recurrent. member has received the appropriate immunizations
and has had no serious infections.
(4) Myocardial injury or hypertrophy of
any cause. (3) History of bariatric surgery is dis-
qualifying and waiver will not be considered.
(5) Chronic anticoagulant use.
(4) History of diverticulitis is disquali-
(6) Intermittent claudication or other fying. Personnel with diverticulosis require counsel-
peripheral vascular disease. ing regarding preventive measures and monitoring for
development of diverticulitis.
(7) Thrombophlebitis. Localized, sup-
erficial thrombophlebitis related to intravenous (IV) (5) History of small bowel obstruction
catheter placement is not disqualifying once asymp- is disqualifying.
tomatic.
(6) Presence of gallstones, whether or
(8) Uncontrolled hypertension, due not they are symptomatic, is disqualifying until the
either to the refractory nature of the condition or member is stone-free.
patient noncompliance, and persisting greater than 6
months, is disqualifying. Hypertension, which re- (7) History of gastric or duodenal ulcer
quires complex management or is associated with end is disqualifying.
organ damage, is disqualifying.
(9) History of cardiac surgery, includ- (8) History of pancreatitis is disquali-
ing ablations for Wolff-Parkinson-White and other fying.
accessory pathways, other than closure of patent
ductus arteriosus in infancy. (9) Chronic active hepatitis is disquali-
fying.
(g) Abdominal Organs and Gastrointest-
(10) Inflammatory bowel disease and
inal System
malabsorption syndromes are disqualifying.
(1) A history of gastrointestinal tract
disease of any kind is disqualifying, if any of the (11) History of abdominal surgery is not
following conditions are met: disqualifying once healed, provided there are no
sequelae including, but not limited to, adhesions.
(a) Current or history of gastroin-
testinal bleeding, including positive occult blood (12) Uncontrolled gastroesophageal
testing, if the cause has not been corrected. Minor reflux disease (GERD) is disqualifying.
rectal bleeding from an obvious source (e.g., anal
(13) History of food impaction or
esophageal stricture is disqualifying.
15-86 Change 164 22 May 2018
74a
Physical Examinations and Standards Article 15-105
(h) Genitourinary (3) Gout that does not respond to treat-
ment is disqualifying.
(1) Urinary incontinence, renal insuffi-
ciency, recurrent urinary tract infections, and chronic (4) Symptomatic hypoglycemia is dis-
or recurrent scrotal pain are disqualifying. qualifying for candidates. Recurrent episodes are
disqualifying for designated SO personnel.
(2) History of urolithiasis:
(5) Chronic use of corticosteroids, or
(a) Is disqualifying for candidates. other medications which suppress or modulate the
immune system, is disqualifying. Nasal cortico-
(b) A first episode of uncompli- steroids used to treat allergic rhinitis are not dis-
cated urolithiasis is not disqualifying for SO qualifying.
designated personnel provided that there is no
predisposing metabolic or anatomic abnormality and (6) Hypogonadism or other conditions
there are no retained stones. The attending UMO may requiring ongoing use of exogenous testosterone or
return the member to full duty after a thorough testosterone analogs are disqualifying.
evaluation to include urology consultation and 24-
hour urine studies. (j) Musculoskeletal. Any musculoskeletal
condition which is chronic or recurrent, predisposes to
(c) A first episode of urolithiasis injury, or limits the performance of extremely
associated with a metabolic or anatomic abnormality strenuous activities (weight-bearing and otherwise) for
is disqualifying. Waiver may be considered based protracted periods is disqualifying.
upon evidence of correction of the associated
abnormality. (1) Requirement for any medication,
brace, prosthesis, or other appliance to achieve normal
(d) Recurrent urolithiasis, regard- function is disqualifying. Orthotic shoe inserts are
less of cause, is disqualifying. permitted.
(e) Randall’s plaques are not dis- (2) Any injury or condition which re-
qualifying. sults in limitations despite full medical and/or sur-
gical treatment is disqualifying.
(i) Endocrine and Metabolic. Any condi-
tion requiring chronic medication or dietary modi- (3) Any condition which necessitates
fication is disqualifying for candidates but may be frequent absences or periods of light duty is disquali-
waived for qualified SO personnel. Specifically: fying.
(1) Any history of heat stroke is dis- (4) Back pain, regardless of etiology,
qualifying for SO candidates. Recurrent heat stroke that is chronically or recurrently debilitating or is
(two or more episodes) is disqualifying for designated exacerbated by performance of duty is disqualifying.
SO personnel.
(5) Radiculopathy of any region or
(2) Diabetes mellitus is disqualifying. cause is disqualifying.
(a) Diabetes mellitus requiring (6) Any history of spine surgery is dis-
insulin or long-acting sulfonylurea hypoglycemic qualifying.
medication (such as chlorpropamide or glyburide)
must not be considered for a waiver. (7) Chronic myopathic processes caus-
ing pain, atrophy, or weakness are disqualifying.
(b) Diabetes mellitus controlled
without the use of insulin or long-acting sulfonylurea (8) Special operations personnel with a
medication may be considered for a waiver. Waiver history of uncomplicated fractures may return to SO
requests must include documentation of current med- Duty after 3 months (or SO candidates after 12
ications, current hemoglobin A1C level, and docu- months) if without residual symptoms or physical
mentation of the presence or absence of any end organ limitations, after evaluation by the attending ortho-
damage. pedic surgeon and at the discretion of the UMO
22 May 2018 Change 164 15-87
75a
Article 15-105 Manual of the Medical Department
without a waiver. Those with residual symptoms or 2. Designated SO personnel
physical limitations, or those seeking to return to SO with substance use disorder will be managed admin-
duty sooner than 3 months (12 if candidate) require a istratively per OPNAVINST 5355.3 series and do not
waiver. require medical disqualification unless a medically
disqualifying diagnosis is present in addition to the
(9) SO personnel with a history of bone substance use disorder (e.g., substance-induced psy-
(e.g., open reduction, internal fixation) or major joint chosis).
surgery may return to SO Duty after 6 months (or SO
candidates after 12 months) if without residual symp- 3. Current or history of illicit
toms or physical limitations, after evaluation by the drug use (including use in religious rituals) should be
attending orthopedic surgeon and at the discretion of managed administratively per OPNAVINST 5355.3
the UMO without a waiver. Those with residual series, SECNAVINST 5300.28 series, and any other
symptoms or physical limitations, or those seeking to applicable directives.
return to SO Duty sooner than 6 months (12 if SO
candidate) require a waiver. Retained hardware, after (3) Use of psychotropic medication is
the afore-mentioned time intervals, is not disquali- temporarily disqualifying until the Service member
fying unless it results in limited range of motion. has become stable on the medication and they are able
to perform their duties, as judged by the attending
(10) Any amputation, partial or com- UMO and doctoral-level mental health professional.
plete, is disqualifying. No waiver is required to return to SO Duty for short-
term use (less than 6 months) of a psychotropic medi-
(k) Psychological and cognitive cation. Long-term use (longer than 6 months) of a
psychotropic medication is disqualifying and will
(1) Any diagnosis, from the current require a waiver to return to SO Duty.
version of the DSM, which affects the Service mem-
ber's ability to perform their duties is disqualifying. Note: ASD(HA) Guidelines for Deployment-Limiting Psychiatric
This determination for disqualification can be made by Conditions and Medications states that a member may not be
either the Service member’s treating medical provider deployed within 3 months of starting a psychotropic medication.
or licensed mental health professional. Waiver may be
Note: OPNAVINST 3591.1, Small Arms Training and Quali-
considered when the individual’s symptoms no longer fication, states that a member may not be issued a weapon while on
affect their ability to perform their duties and must psychotropic medications unless a waiver is obtained; personnel
include a favorable recommendation from the must be limited to administrative duties unless waiver has been
attending mental health provider and UMO. granted.
(2) Substance Use Disorders (4) Waiver is not required for short-
term use (2 weeks or less) of a sleep aid (e.g., zolpidem
(a) Alcohol use disorders are dis- for induction of sleep).
qualifying. If characterized as MILD or MODER-
ATE, a waiver request may be submitted after (l) Neurologic. Any chronic or recurrent
completion of all recommended treatment. Waiver condition resulting in abnormal motor, sensory, or
requests should detail any prescribed or recomm- autonomic function or in abnormalities in mental
ended continuing care or aftercare plan. If the alco- status, intellectual capacity, mood, judgment, reality
hol use disorder is characterized as SEVERE, waiver testing, tenacity, or adaptability is disqualifying.
requests will only be considered after the individual
demonstrates sustained sobriety (typically 12 months) (1) Migraine (or other recurrent head-
and has completed any recommended continuing care ache syndrome) which is frequent and debilitating, or
and aftercare programs. is associated with changes in motor, sensory,
autonomic, or cognitive function, is disqualifying.
(b) Other Substance Use Disorders
(2) A history of seizure disorder, with
1. Medically disqualifying for the exception of febrile convulsion before age 6 years,
all SO Duty candidates. Waiver requests must in- is considered disqualifying. A minimum of 2 seizure-
clude documentation of successful completion of free years after cessation of anti-convulsant medica-
treatment and aftercare (if applicable). tion with a normal EEG and neurological evaluation
15-88 Change 164 22 May 2018
76a
Physical Examinations and Standards Article 15-105
is necessary before a waiver will be considered. Iso- (8) History of penetrating head injury is
lated seizures attributed to known causes (e.g., blunt disqualifying.
trauma, intoxications) may be waived sooner.
(m) Skin. Any chronic condition which
(3) Peripheral neuropathy due to syste- requires frequent health care encounters, is unrespon-
mic disease is disqualifying. Impingement neuro- sive to topical treatment, causes long-term com-
pathy (e.g., carpal tunnel syndrome) is not dis- promise of skin integrity, interferes with the wearing
qualifying if a surgical cure is achieved. Small, iso- of required equipment, clothing, or camouflage paint,
lated patches of diminished sensory function are not or which may be exacerbated by sun exposure is
disqualifying if not due to a systemic or central disqualifying.
process, but must be thoroughly documented in the
health record. (n) Miscellaneous
(4) Speech impediments (stammering, (1) Chronic viral illnesses (except those
stuttering, etc.) that impair communication are dis- with manifestations limited to the skin) are dis-
qualifying. qualifying.
(5) Any history of surgery involving the (2) Cancer treatment (except excision
central nervous system is disqualifying. of skin cancer) within the preceding year is dis-
qualifying.
(6) Cerebrovascular disease including
stroke, transient ischemic attack, and vascular mal- (3) Chronic immune insufficiency of
formation, is disqualifying. any cause, chronic anemia, abnormal hemoglobin
(including sickle cell trait), and defects of platelet
(7) Closed head injury is disqualifying function or coagulability are disqualifying.
if there is:
(4) Allergic or atopic conditions which
(a) Cerebrospinal fluid leak. require allergy immunotherapy are disqualifying until
completion of desensitization therapy.
(b) Intracranial bleeding.
(5) Current history of severe allergic
(c) Depressed skull fracture with reaction or anaphylaxis to environmental substances
dural laceration. or any foods is disqualifying. Any allergy with life
threatening manifestations is disqualifying.
(d) Post-traumatic amnesia (PTA)
per the following schedule: (6) Chronic or recurrent pain syn-
dromes that may mimic serious disease (e.g., abdo-
1. PTA less than 1 hour is minal pain, chest pain, and headache) are disquali-
disqualifying for at least 1 month. A normal brain fying.
MRI and normal examination by a neurologist or
neurosurgeon is required before return to duty. If more (7) Recurrent syncope is disqualifying.
than 2 years have elapsed since the injury, a normal Waiver will be considered only after demonstration of
MRI and a normal neurologic examination by the a definitive diagnosis and effective prophylactic
UMO are sufficient. Further specialty consultation is treatment.
only indicated in the event of abnormal findings.
(8) Medications
2. PTA greater than 1 hour is
permanently disqualifying for candidates. Waiver may (a) For candidates, daily or fre-
be entertained for designated SO personnel after 1 year quent use of any medication is disqualifying.
if brain MRI and neurologic and neuropsychological
evaluations are normal. (b) For designated SO personnel,
use of any medication that may compromise mental or
behavioral function, limit aerobic endurance, or
22 May 2018 Change 164 15-89
77a
Article 15-105 Manual of the Medical Department
pose a significant risk of mentally or physically upon with 24 hours of receipt. Access to WEBWAVE
impairing side effects is disqualifying. Any require- 2 is controlled by BUMED-M95. Commands needing
ment for a medication that necessitates close moni- to submit requests via WEBWAVE 2 but currently
toring, regular tests, refrigeration, or parenteral ad- without access may contact BUMED-M95 directly to
ministration on a biweekly (every 2 weeks) or more validate their requirement and obtain access/training.
frequent basis is disqualifying. Requirement for
medication which would pose a significant health risk (c) For SO personnel, interim waivers may
if suddenly stopped for 1 month or more is dis- be granted by BUMED-M95 for periods of up to 6
qualifying. months.
(1) Interim waivers will not normally be
(c) SO designated personnel tak- considered for SO candidates, in as much as their
ing medicines prescribed by a non-DoD provider are suitability must be established before the Navy incurs
disqualified until reviewed and approved by the the expense of TAD orders and training.
Service member’s UMO.
(2) Because interim waivers are not re-
(9) Vaccinations. Candidate or SO viewed by the relevant Waiver Authority, BUMED-
designated personnel refusing to receive recom- M95 will only grant interim waivers for relatively
mended vaccines (preventive health or theatre speci- routine, frequently encountered conditions for which
fic vaccines recommended by the Combatant Com- it is confident of the waiver authority’s eventual
mand (COCOM)) based solely on personal or reli- disposition. In any case, interim waivers should be
gious beliefs are disqualified. This provision does not requested sparingly.
pertain to medical contraindications or allergies to
vaccine administration. (3) BUMED-M95 must receive the final
waiver request prior to the expiration of any interim
(4) Waiver and Disqualification Requests. waiver which has been granted (typically 6 months).
Waiver and disqualification requests are essentially The final waiver request must include a substantive
the same personnel action. The distinction between interval history pertinent to the condition under
the two lies with whether the originator is requesting review.
that one or more physical standards be waived or not. (4) Individuals with lapsed interim wai-
The outcome of either request is a determination by vers are not physically qualified to parachute or deploy
the responsible waiver authority as to whether the until the final waiver request has been adjudicated.
physical standard(s) is waived or not. BUMED-M95
serves as the senior medical reviewer for the waiver (5) BUMED-M95’s final recommenda-
authority. (Certain waiver authorities have delegated tion will be based on the member’s condition at the
adjudication of disqualification cases only to lower time the final waiver request is made and may differ
echelon commanders). from the interim determination, if there has been a
change in the member’s condition or if information
(a) Requests for a waiver of physical stand- presented in the final request dictates a change in
ards for SO personnel and candidates must be sent recommendation.
from the member’s commander, commanding officer,
or officer in charge, via any applicable immediate (d) BUMED-M95 will perform ‘courtesy
superior in command (ISIC) or type commander (TY- screening’ for SO candidates, who are potential Navy
COM) and BUMED-M95, to the appropriate Bureau accessions, referred by their local Navy Recruiting
of Naval Personnel code (enlisted – BUPERS-3; offi- Districts (NRD); however, these screens are not
cers – PERS-416); or Headquarters, USMC (POG-40). waivers.
(b) Originators must use the WEBWAVE 2 (e) The required elements of a waiver or
system to securely transmit cases (which contain disqualification request are:
HIPAA and PII-protected information). WEBWAVE
2 expedites case adjudication, allows tracking of cases (1) A special SF 600, prepared by the
under review and provides an accessible archive of UMO, requesting the waiver (or disqualification),
closed cases. The system’s business rules are designed referencing the specific standard for which the
to ensure that all necessary components of a request member is NPQ, a clinical synopsis including brief
are submitted and requests are directed electronically history, focused examination, clinical course, appro-
via the proper routing sequence. BUMED-M95’s priate ancillary studies and appropriate specialty
guideline for timely internal review of routine waiver
requests is 10 business days; Urgent cases are acted
15-90 Change 164 22 May 2018
78a
Physical Examinations and Standards Article 15-106
consultations, followed by an explicit recommenda- (2) Applicability. Current and prospective sub-
tion of “waiver recommended” or “waiver not mariners and UMOs. Non-submarine designated per-
recommended” with supporting rationale. Any on- sonnel embarked on submarines (“riders”) will com-
going aftercare must be identified. ply with OPNAVINST 6420.1 series.
(2) DD Form 2807-1/2808, annotated to (3) Examinations
reflect individual’s pertinent findings. This may either
be a new SO duty examination, a current SO duty (a) Periodicity. For candidates, no more
examination, annotated as necessary, or a focused than 1 year prior to reporting for initial submarine
examination documenting pertinent positives and training. Periodicity between examinations will not
negatives. Circumstances will dictate which format is exceed 5 years up to age 50. After age 50, periodicity
most appropriate. will not exceed 2 years, e.g., an individual examined
at age 46 would be re-examined at age 51, an
(3) Copies of other, pertinent studies
individual examined at age 47, 48, 49, or 50 would be
supporting the waiver/disqualification.
re-examined at age 52. Beginning at age 60, the
(4) Copies of pertinent, specialty con- examination is required annually. Submarine duty
sultation clinical notes supporting the waiver or dis- examinations must be performed no later than 1 month
qualification. following the anniversary date (month and year) of the
previous physical examination date. For example, for
(5) Endorsement by the member’s com- an examination performed on a 20-year old on 15
manding officer or sponsoring unit. This endorse- February 2010, the next examination must be com-
ment should be substantive and address whether the pleted by 31 March 2015. A complete physical exami-
condition, diagnosis, or current condition impairs the nation is also required prior to returning to submarine
member’s performance of SO duty and is compatible duty after a period of disqualification.
with the operational environment.
(b) Scope. The examiner will pay special
Note: Office codes, titles and contact numbers are current as of the attention to the mental status, psychiatric, and neu-
time of document release. It should be anticipated that these can
and will change prior to the next revision of this article. rologic components of the examination, and will
review the entire health record for evidence of past
impairment. Specifically, the individual will be ques-
Note: An individual who does not meet Article 15-105 physical tioned about difficulty getting along with other per-
standards and is denied a waiver by BUPERS- 3/PERS-416, and sonnel, history of suicidal or homicidal ideation, and
still wishes to participate in military parachuting, must be examined anxiety related to tight or closed spaces, nuclear
and meet standards per AR40-501. Waiver authority for the Air-
borne School is the Commandant, U.S. Army Infantry School in power, or nuclear weapons. The examination must be
coordination with U.S. Total Army Personnel Command recorded on the DD Form 2807-1 and DD Form 2808.
(PERSCOM). For female examinees, the NAVMED 6420/2 (Health
and Reproductive Risk Counseling for Female
Submariners and Submarine Candidates) is also re-
quired. If within required periodicity, portions of the
examination typically performed in conjunction with
15-106 Submarine Duty the annual women’s health exam (e.g., breast, geni-
talia, pelvic, anus and rectum) may be transcribed with
proper attribution rather than repeated, and need not be
(1) Characteristics. Submarine duty is charact- performed by the examiner performing the submarine
erized by geographic isolation, austere medical duty exam. The following studies are required within
support, need for personnel reliability, prolonged 3 months prior to the exam unless otherwise specified:
habitation of enclosed spaces, continuous exposure to
low level atmospheric contaminants, and psycho- (1) PA and lateral x-rays of the chest
logical stress. The purpose of submarine duty stand- (candidates only, upon program entry).
ards is to maximize mission capability by optimizing
(2) LTBI screening (current per BUM-
mental and physical readiness of members of the
EDINST 6224.8 series for persons embarking on a
submarine force.
Commissioned Vessel).
22 May 2018 Change 164 15-91
Case 4:21-cv-01236-O Document 17-2 Filed 11/24/21 Page 65 of 145 PageID 380
79a
Pls' Mot. for Prelim. Inj. App. 000158
Case 4:21-cv-01236-O Document 17-2 Filed 11/24/21 Page 66 of 145 PageID 381
80a
Pls' Mot. for Prelim. Inj. App. 000159
Case 4:21-cv-01236-O Document 17-2 Filed 11/24/21 Page 68 of 145 PageID 383
81a
UNCLASSIFIED//
ROUTINE
R 132050Z OCT 21 MID600051034536U
FM CNO WASHINGTON DC
TO NAVADMIN
INFO SECNAV WASHINGTON DC
BT
UNCLAS
NAVADMIN 225/21
MSGID/NAVADMIN/CNO WASHINGTON DC/CNO/OCT//
SUBJ/COVID-19 CONSOLIDATED DISPOSITION AUTHORITY (CCDA)//
REF/A/DOC/SD/24AUG21/
REF/B/MSG/SECNAV/302126ZAUG21/
REF/C/MSG/CNO/311913ZAUG21/
REF/D/DOC/BUMED/7OCT13//
REF/E/DOC/BUPERS/16MAR20//
REF/F/DOC/OPNAV/15AUG20//
NARR/REF A IS THE SECRETARY OF DEFENSE MEMO MANDATING CORONAVIRUS DISEASE
2019 VACCINATION FOR DEPARTMENT OF DEFENSE SERVICE MEMBERS.
REF B IS ALNAV 062/21, 2021-2022 DEPARTMENT OF NAVY MANDATORY COVID-19
VACCINATION POLICY.
REF C IS NAVADMIN 190/21, 2021-2022 NAVY MANDATORY COVID-19 VACCINATION AND
REPORTING POLICY.
REF D IS BUMEDINST 6230.15B, IMMUNIZATIONS AND CHEMOPROPHYLAXIS FOR THE
PREVENTION OF INFECTIOUS DISEASE.
REF E IS BUPERSINST 1730.11A, STANDARDS AND PROCEDURES GOVERNING THE
ACCOMMODATION OF RELIGIOUS PRACTICES.
REF F IS MILPERSMAN 1730-020, IMMUNIZATION EXEMPTIONS FOR RELIGIOUS
BELIEFS.//
POC/OPNAV/CAPT STEVEN TARR III, (703) 614-9250//EMAIL:
STEVEN.TARR1.MIL(AT)US.NAVY.MIL
RMKS/1. Purpose. This NAVADMIN announces the assignment of the Chief of
Naval Personnel as the COVID Consolidated Disposition Authority (CCDA), and
provides procedural guidance and reporting requirements for administrative
disposition of individual Navy service members, active duty and Selected
Reserve, who are not fully vaccinated per references (a) through (c).
2. Policy. In order to maximize readiness, it is the policy goal of the
U.S. Navy to achieve a fully vaccinated force against the persistent and
lethal threat of COVID-19.
2.a. In support of the above stated policy, and as directed by the Secretary
of the Navys lawful order, the Navy has commenced a mandatory vaccination
campaign per references (a) through (c). Navy service members refusing the
COVID-19 vaccination, absent a pending or approved exemption, shall be
processed for administrative separation per this NAVADMIN and supporting
references. To ensure a fair and consistent process, separation
determinations will be centralized under the CCDA as outlined in the
paragraphs below.
2.b. To date, over 98 percent of active duty U.S. Navy service members have
met their readiness responsibility by completing or initiating a COVID-19
vaccination series. We applaud your commitment to ensuring the continued
readiness of our worldwide deployable Navy. Tragically, there have been 164
Pls' Mot. for Prelim. Inj. App. 000161
Case 4:21-cv-01236-O Document 17-2 Filed 11/24/21 Page 69 of 145 PageID 384
82a
deaths within the Navy family due to COVID-19, far exceeding the combined
total of all other health or mishap related injuries and deaths over the same
time period. 144 of these were not immunized and 20 had an undisclosed
immunization status.
3. Definitions. For the purposes of this NAVADMIN, the following terms are
defined.
3.a. Navy Service Members. Active-duty service members and service members
in the Selected Reserve only. Service members in the Individual Ready
Reserve and U.S. Naval Academy and Naval Reserve Officers Training Corps
midshipmen remain subject to the vaccine mandates in references (a) and (b),
but will be adjudicated per their governing instructions rather than this
NAVADMIN.
3.b. Active-Duty Navy Service Members. Active-duty Navy service members
includes members of the Active Component and members of the Reserve Component
on active duty in full time support (FTS).
3.c. Refusing the Vaccine. A Navy service member refusing the vaccine is
one who has: (1) received a lawful order to be fully vaccinated against
COVID-19; (2) is not or will not be fully vaccinated on the date required by
the order; and (3) does not have a pending or approved exemption request per
references (d) through (f).
3.d. Fully Vaccinated. Service members are considered fully vaccinated two
weeks after completing an approved COVID-19 vaccination series per reference
(c).
3.e. Senior Leader. A Navy senior leader is a flag officer or flag officer
select, regardless of assignment; an officer serving as a commander, deputy
commander, commanding officer, executive officer, chief of staff, chief staff
officer, or officer in charge; or an enlisted member serving as a command
master chief, chief of the boat, senior enlisted advisor, or command senior
enlisted leader.
4. Deadlines. Per references (a) through (c), active duty Navy service
members must be fully vaccinated against COVID-19 NLT 28 November 2021, and
Ready Reserve Navy service members NLT 28 December 2021. New accessions must
be vaccinated as soon as practicable following service entry.
4.a. For requested exemptions that are denied, specific instructions
regarding the follow-on vaccination timeline or separation adjudication
process will be included in the denial letter.
4.b. Administrative actions per this NAVADMIN may begin as soon as a Navy
service member meets the definition of refusing the vaccine in paragraph 3.c.
5. Disposition Authority
5.a. Designation of the CCDA. The Chief of Naval Personnel (CNP) is the
CCDA. The Chief of Navy Reserve (CNR) will provide support to the CCDA for
cases involving Navy service members in the Selected Reserve.
5.b. Authorities for Vaccination Refusal. The CCDA is the officer show
cause authority and enlisted separation authority for Navy service members
who refuse the COVID-19 vaccine, except Entry Level Separation (ELS). For
ELS, commanders and commanding officers are separation authorities per
paragraph 6.b. Commanders and commanding officers will initiate
administrative separation processing per paragraphs
7.a. and 7.b. The Vice Chief of Naval Operations retains authority for non-
judicial punishment and courts-martial. Involuntary extension of enlistments
is not authorized on the basis of administrative or disciplinary action for
vaccination refusal. The CCDA may seek recoupment of applicable bonuses,
special and incentive pays, and the cost of training and education for
service members refusing the vaccine.
Pls' Mot. for Prelim. Inj. App. 000162
Case 4:21-cv-01236-O Document 17-2 Filed 11/24/21 Page 70 of 145 PageID 385
83a
5.c. Other Misconduct. The withholding of disposition authority in
reference (c) and this NAVADMIN does not extend to other misconduct, which
may include misconduct related to vaccine refusal such as failing to wear a
mask when required, falsifying vaccination records, or not complying with
COVID testing requirements. If in doubt, commanders, commanding officers,
and officers in charge should consult with their servicing staff judge
advocate in determining disposition authority.
5.d. Separation Authority for Vaccine Refusal That Includes Other
Misconduct. If a Navy service member is processed for administrative
separation because of vaccine refusal that includes other misconduct, the
CCDA will serve as the officer show cause authority or enlisted separation
authority in accordance with paragraph 5.b.
5.e. Professional Qualifications. For Navy service members refusing the
vaccine, the CCDA retains the authority for administrative processes
regarding removal of warfare qualifications, additional qualification
designations (AQD), Navy Enlisted Classifications (NEC), or sub-specialties,
except in cases where removal authority is otherwise authorized by law or
Executive Order (e.g. Director, Naval Nuclear Propulsion Program regarding
nuclear qualifications).
5.f. Other Armed Forces Members Assigned to Navy Commands. For vaccine
refusal cases involving Soldiers, Airmen, Guardians, Marines, or Coast
Guardsmen assigned to Navy commands, the Navy commander, commanding officer,
or officer-in-charge will report the case to the CCDA.
5.g. Navy Service Members in Non-Navy Billets. The CCDA will be responsible
for identifying, coordinating, and adjudicating Navy service members refusing
the vaccine while serving in non-Navy billets (e.g., Joint, NATO).
6. Administrative Disposition Guidance; Immediate Actions.
6.a. Unvaccinated Senior Leaders. An unvaccinated senior leader without a
pending or approved exemption calls into question the Navy’s trust and
confidence regarding their ability to ensure unit readiness or to maintain
good order and discipline. These senior leaders must begin vaccination
immediately. This constitutes a lawful order. The immediate superior in
command (ISIC), commander, or commanding officer, as applicable, will notify
in writing senior leaders refusing the vaccine that they have five (5)
calendar days to initiate corrective action. If the senior leader does not
begin a vaccination series or request an exemption within that five-day
period, the ISIC, commander, or commanding officer will relieve the senior
leader and initiate detachment for cause (DFC) per MILPERSMAN 1611-010,
MILPERSMAN 1611-020, and MILPERSMAN 1616-010, as applicable.
6.a.(1). A sample report of misconduct is available at:
https://www.mnp.navy.mil/group/navy-covid-19-reporting. The report will note
that authority for disciplinary action is withheld by reference (c) and this
NAVADMIN, and as such no disciplinary action was taken.
6.a.(2). Established notification procedures for relief of command triad
members apply. The relief of any flag officer or officer selected for
promotion to O-7 under this paragraph will be reported to the Naval Inspector
General for review per DoDI 1320.04 and SECNAVINST 5800.12C.
6.b. Entry Level Separation (ELS). ELS processing is authorized per
paragraph 5.b above per MILPERSMAN 1910-154 for Navy service members in an
entry level status refusing the vaccine. ELS shall be reported per paragraph
9.
6.c. Because COVID-19 vaccination is now mandatory, commanders, commanding
officers, or officers in charge, with the concurrence of the first flag
officer in the chain of command, are authorized to temporarily reassign Navy
service members who refuse the COVID-19 vaccine, regardless of exemption
status, based on operational readiness or mission requirements.
Pls' Mot. for Prelim. Inj. App. 000163
Case 4:21-cv-01236-O Document 17-2 Filed 11/24/21 Page 71 of 145 PageID 386
84a
6.d. Promotion, Transfer and Reenlistment. Commands shall not allow those
refusing the vaccine to promote/advance, reenlist, or execute orders, with
the exception of separation orders, until the CCDA has completed disposition
of their case. Transfer orders may be cancelled by Navy Personnel Command.
7. Administrative Disposition Guidance; Future Actions. The actions in this
paragraph shall be executed per paragraph 4.
7.a. Officer Administrative Separation. In the case of any officer,
including any officer senior leader, who is refusing the vaccine, the
cognizant commander or commanding officer shall submit a report of misconduct
to Commander, Navy Personnel Command (PERS-834) per MILPERSMAN 1611-010. A
template report is available at: https://www.mnp.navy.mil/group/navy-covid-
19-reporting.
Per SECNAVINST 1920.6D, the CCDA, as the show cause authority, has directed
mandatory show cause processing for all officers on the bases of Misconduct,
Moral or Professional Dereliction, and Substandard Performance, with the
least favorable characterization of service as GENERAL (under honorable
conditions), unless inclusion of another basis for separation warrants other
than honorable. Additionally, report flag officers or officers selected for
promotion to O-7 who are refusing the vaccine to the Naval Inspector General
for review per DoDI 1320.04 and SECNAVINST 5800.12C. Officers separated
under this subparagraph will not be eligible for involuntary separation pay
and will be subject to recoupment of any unearned special or incentive pays.
7.b. Enlisted Administrative Separation. In the case of any enlisted
service member, including any enlisted senior leader, who is refusing the
vaccine, the cognizant commander or commanding officer shall initiate the
process for administrative separation under MILPERSMAN 1910-142, Commission
of a Serious Offense, plus any additional basis known at the time of
processing. The provisions of MILPERSMAN 1910 (series) apply; treat vaccine
refusal cases as though they were listed in MILPERSMAN 1910-233. The CCDA is
the separation authority unless a higher separation authority is required by
MILPERSMAN 1910-704. The least favorable characterization of service shall
be GENERAL (under honorable conditions), unless inclusion of another basis
for separation warrants other than honorable. Enlisted service members
separated under this subparagraph will not be eligible for involuntary
separation pay and will be subject to recoupment of any unearned special or
incentive pays.
7.c. Officer Promotion Delay. Per SECNAVINST 1420.3 or SECNAVINST 1412.6M,
commanders and commanding officers shall delay the promotion of any officer
refusing the vaccine. Delays shall be based upon pending administrative
action and physical qualification. PERS-833 will make formal written notice
to the officer following written notice by the commanding officer.
7.d. Enlisted Advancement Withhold. Per BUPERSINST 1430.16G, commanding
officers shall withhold the advancement of any enlisted member refusing the
vaccine. Advancement withholds shall be based upon pending administrative
action and physical qualification.
7.e. Documentation in Fitness Reports and Enlisted Evaluations.
Per MILPERSMAN 1610-015, failure to comply with individual medical readiness
responsibilities will be documented in fitness reports and
evaluations. Failure to be fully vaccinated against COVID-19 is a medical
readiness failure.
7.e.(1). Commanding officers shall identify those refusing the vaccine and
verify that the members have an initial counseling NAVPERS 1070/13 per
MILPERSMAN 1610-015 in their local file (Page 13). If necessary, the initial
NAVPERS 1070/13 directed in MILPERSMAN 1610-015 shall be issued.
The NAVPERS 1070/13 counseling and warning ordering vaccination per NAVADMIN
190/21 may serve as the subsequent formal counseling required in MILPERSMAN
Pls' Mot. for Prelim. Inj. App. 000164
Case 4:21-cv-01236-O Document 17-2 Filed 11/24/21 Page 72 of 145 PageID 387
85a
1610-015.
7.e.(2). Within 30 days of a Navy service member refusing the vaccine,
reporting seniors shall issue a Special Fitness Report/Evaluation per
MILPERSMAN 1610-015 and BUPERSINST 1610.10E. In addition to documenting
failure to comply with individual medical readiness responsibilities, the
report shall document other facts as appropriate, including any misconduct
related to UCMJ Art. 92.
7.f. Terminal Leave. Navy service members who commence terminal leave on
or before the applicable deadline in paragraph 4 are administratively
exempted from vaccine requirements per BUMEDNOTE 6150 of 21 Sep 21 and
BUMEDINST 6230.15B.
7.g. The authority for commanding officers in MILPERSMAN 1730-020 to revoke
an approved religious accommodation exemption from COVID-19 vaccination is
withheld.
8. Reporting
8.a. Officers and E-6 through E-9. Per MILPERSMAN 1611-010 and MILPERSMAN
1616-040, commands are required to inform PERS-834 (officers) and PERS-832
(enlisted) of incidents that could result in adverse action. This applies to
vaccine refusal. Reports should flag whether the service member is pending
transfer or promotion/advancement.
8.b. E-5 and Below. Per MILPERSMAN 1616-050, misconduct not yet finally
adjudicated need not be reported to Navy Personnel Command.
9. Data Collection and Record Retention
9.a. Navy echelon one and two commanders will forward information regarding
those refusing the vaccine within their administrative chains of command to
CNP for active duty Navy service members and CNR for Ready Reserve service
members per CCDA guidance.
9.b. All commands must retain all records, materials and
written communications, including emails, pertaining to
vaccine refusals per SECNAV M-5210.1.
10. Points of contact. OPNAV POC: CAPT Steven Tarr III, comm (703) 614-
9250, e-mail: steven.tarr1.mil(at)us.navy.mil. BUMED POC: BUMED COVID-19
CRISIS ACTION TEAM / (703) 681-1125 /e-mail: USN.NCR.BUMEDFCHVA.MBX.BUMED---
2019-NCOV-RESPONSE-CELL(AT)MAIL.MIL OJAG POC: CDR Justin Pilling, comm (703)
614-5757, e-mail: justin.d.pilling@navy.mil.
11. Released by ADM William Lescher, Vice Chief of Naval Operations, and
VADM John B. Nowell, Jr., Chief of Naval Personnel.//
BT
#0001
NNNN
UNCLASSIFIED//
Pls' Mot. for Prelim. Inj. App. 000165
86a
UNCLASSIFIED//
ROUTINE
R 152239Z NOV 21 MID600051180185U
FM CNO WASHINGTON DC
TO NAVADMIN
INFO CNO WASHINGTON DC
BT
UNCLAS
NAVADMIN 256/21
PASS TO OFFICE CODES:
FM CNO WASHINGTON DC//N1//
INFO CNO WASHINGTON DC//N1//
MSGID/GENADMIN/CNO WASHINGTON DC/CNO/NOV//
SUBJ/CCDA GUIDANCE TO COMMANDERS//
REF/A/DOC/SD/24AUG21//
REF/B/MSG/SECNAV/302126ZAUG21//
REF/C/MSG/OPNAV/311913ZAUG21//
REF/D/MSG/OPNAV/132050ZOCT21//
REF/E/DOC/BUMED/7OCT13//
REF/F/DOC/BUPERS/16MAR20//
REF/G/DOC/OPNAV/15AUG20//
REF/H/DOC/BUMED/03SEP21//
REF/I/DOC/OPNAV/10NOV09//
REF/J/MSG/OPNAV/011621ZNOV21//
REF/K/DOC/OPNAV/02SEP09//
REF/L/DOC/OPNAV/30OCT19//
REF/M/DOC/OPNAV/09OCT19//
REF/N/DOC/OPNAV/01OCT18//
REF/O/DOC/BUPERS/07MAY20//
REF/P/DOC/OPNAV/09OCT19//
REF/Q/DOC/OPNAV/29MAY07//
REF/R/DOC/OPNAV/07DEC06//
REF/S/DOC/OPNAV/25OCT21//
REF/T/DOC/OPNAV/05OCT17//
REF/U/DOC/OPNAV/01APR19//
REF/V/DOC/OPNAV/17JAN20//
REF/W/DOC/OPNAV/11APR21//
REF/X/DOC/SECNAV/30OCT18//
REF/Y/DOC/BUPERS/19SEP18//
REF/Z/DOC/SECNAV/28MAR19//
REF/AA/DOC/SECNAV/15APR19//
NARR/REF A IS THE SECRETARY OF DEFENSE MEMO MANDATING CORONAVIRUS DISEASE
2019 VACCINATION FOR DEPARTMENT OF DEFENSE SERVICE MEMBERS.
REF B IS ALNAV 062/21, 2021-2022 DEPARTMENT OF THE NAVY MANDATORY COVID-19
VACCINATION POLICY.
REF C IS NAVADMIN 190/21, 2021-2022 NAVY MANDATORY COVID-19 VACCINATION AND
REPORTING POLICY.
REF D IS NAVADMIN 225/21, COVID-19 CONSOLIDATED DISPOSITION AUTHORITY (CCDA).
REF E IS BUMEDINST 6230.15B, IMMUNIZATIONS AND CHEMOPROPHYLAXIS FOR THE
PREVENTION OF INFECTIOUS DISEASE.
REF F IS BUPERSINST 1730.11A, STANDARDS AND PROCEDURES GOVERNING THE
ACCOMMODATION OF RELIGIOUS PRACTICES.
87a
REF G IS MILPERSMAN 1730-020, IMMUNIZATION EXEMPTIONS FOR RELIGIOUS BELIEFS.
REF H IS BUMEDNOTE 6300, NAVY CORONAVIRUS DISEASE 2019 VACCINE MEDICAL
TEMPORARY, AND MEDICAL PERMANENT EXEMPTION FOR MEDICAL CONTRAINDICATION
APPROVAL PROCESS.
REF I IS MILPERSMAN 1910-154, SEPARATION BY REASON OF ENTRY LEVEL PERFORMANCE
AND CONDUCT.
REF J IS MILPERSMAN 1910-600, FORWARDING CASES TO THE SEPARATION AUTHORITY
(SA).
REF K IS NAVADMIN 249/21, CCDA REPORTING REQUIREMENTS.
REF L IS MILPERSMAN 1611-010, OFFICER PERFORMANCE AND SEPARATIONS FOR CAUSE.
REF M IS MILPERSMAN 1616-040, ENLISTED PERFORMANCE (E-6/7/8/9).
REF N IS MILPERSMAN 1610-015, DOCUMENTATION ON FITNESS REPORTS AND
PERFORMANCE EVALUATIONS FOR FAILURE TO MAINTAIN DEPLOYABILITY OR INDIVIDUAL
MEDICAL READINESS.
REF O IS BUPERSINST 1610.10E, NAVY PERFORMANCE EVALUATION SYSTEM.
REF P IS MILPERSMAN 1616-050, ENLISTED PERFORMANCE (E-5 AND BELOW).
REF Q IS MILPERSMAN 1320-308, PERMANENT CHANGE OF STATION (PCS) TRANSFER
ORDER EXECUTION.
REF R IS POLICY DECISION MEMORANDUM 003-06, ASSIGNMENT INCENTIVE PAY
PROGRAM.
REF S IS POLICY DECISION MEMORANDUM 002-21, SEA DUTY INCENTIVE PAY PROGRAM.
REF T IS OPNAVINST 1160.6C, SPECIAL DUTY ASSIGNMENT PAY PROGRAM.
REF U IS OPNAVINST 1160.8B, SELECTIVE REENLISTMENT BONUS PROGRAM.
REF V IS OPNAVINST 1520.23C, GRADUATE EDUCATION.
REF W IS MILPERSMAN 1160-040, EXTENSION OF ENLISTMENTS.
REF X IS SECNAVINST 1420.2B, FROCKING OF COMMISSIONED OFFICERS.
REF Y IS BUPERSINST 1430.16G, ADVANCEMENT MANUAL FOR ENLISTED PERSONNEL OF
THE U.S. NAVY AND U.S. NAVY RESERVE.
REF Z IS SECNAVINST 1420.3, DEPARTMENT OF THE NAVY COMMISSIONED OFFICER
PROMOTION PROGRAM.
REF AA IS SECNAVINST 1412.6M, PROMOTION OF OFFICERS TO THE GRADE OF
LIEUTENANT (JUNIOR GRADE) IN THE NAVY AND TO THE GRADE OF FIRST LIEUTENANT IN
THE MARINE CORPS.
RMKS/1. Purpose. This NAVADMIN provides guidance to Commanders regarding
Navy service members who fail to obey a lawful order by refusing the COVID-19
vaccine directed in references (a) through (c).
2. Policy. In order to ensure a fully vaccinated force, U.S. Navy policy is
to process for separation all Navy service members who refuse the lawful
order to receive the COVID-19 vaccination and do not have an approved
exemption. Specific administrative actions are directed herein, however,
additional administrative actions and any punitive actions based solely on
vaccine refusal continue to be withheld.
2.a. The least favorable characterization of service for Navy service
members refusing the vaccine, without extenuating circumstances, will be
GENERAL (under honorable conditions). A general discharge will, at the
discretion of the Department of Veterans Affairs (VA), result in the loss of
eligibility for some VA benefits such as the GI Bill, to include the transfer
of GI Bill benefits to dependents.
2.b. Navy service members with approved or pending COVID-19 vaccination
exemption requests shall not be processed for separation or be subject to the
other administrative actions described in this NAVADMIN due solely to their
lack of COVID-19 vaccination. However, in line with reference (d), Navy
service members who are not vaccinated, regardless of exemption status, may
88a
be temporarily reassigned with concurrence of the first flag officer in the
administrative chain of command based on operational readiness and mission
requirements. Where applicable, the first flag officer in the operational
chain of command should be notified regarding temporary reassignments.
2.c. Navy service members whose COVID-19 vaccination exemption request is
denied are required to receive the COVID-19 vaccine as directed by the
exemption adjudicating authority or commence vaccination within 5 days of
being notified of the denial, if the exemption adjudicating authority does
not specify. Navy service members who refuse the COVID-19 vaccine after
expiration of the specified time to commence vaccination, will be processed
for separation and be subject to the other administrative actions described
in this NAVADMIN and reference (d).
2.d. Navy service members who initiate vaccination such that they cannot
meet the deadline described in references (b) and (c) or the applicable
deadline established by receipt of an exemption denial, should notify their
chain of command as soon as possible. The Navy service members command must
expeditiously report the case to the COVID Consolidated Disposition Authority
via *PERS-834(at)navy.mil* for officers and
*PERS832COVIDVAXADSEPS(at)us.navy.mil* for enlisted, in order to expedite
determination regarding whether to initiate or suspend administrative
separation and the other actions directed by this NAVADMIN.
2.e. Notwithstanding the policy to separate Navy service members refusing
the vaccine, each and every Navy service member shall be treated with dignity
and respect at all times throughout the execution of the policies described
herein.
3. Definitions.
3.a. Navy Service Members. Active-duty service members and service members
in the Selected Reserve only. Service members in the Individual Ready
Reserve and U.S. Naval Academy (USNA) and Naval Reserve Officers Training
Corps (ROTC) midshipmen remain subject to the vaccine mandates in references
(a) through (c), but will be adjudicated per their governing instructions.
3.b. Active-Duty Navy Service Members. Active-duty Navy service members
include members of the Active Component and members of the Reserve Component
on active duty in a full time support (FTS) status (also known as Training
and Administration of the Reserve (TAR)).
3.c. Refusing the Vaccine. A Navy service member refusing the vaccine is
one who has: (1) received a lawful order to be fully vaccinated against
COVID-19, (2) is not or will not be fully vaccinated on the date required by
the order, and (3) does not have a pending or approved exemption request per
references (e) through (h).
3.d. Fully Vaccinated. Service members are considered fully vaccinated two
weeks after completing an approved COVID-19 vaccination series per reference
(c).
3.e. Commanders. Commanders, Commanding Officers and Officers-in-Charge of
naval units or organizations.
4. General Guidance.
89a
4.a. Continue to hold submission of administrative separation (ADSEP) cases
or convening administrative separation boards until directed by the CCDA.
4.a.(1). Final directions for submission of misconduct and ADSEP requests
based solely on vaccine refusal are expected to be promulgated during the
first week of December 2021. In preparation for submission, Commanders shall
prepare Reports of Misconduct, applicable NAVPERS 1070/613s and any other
supporting documents. Templates and additional information can be found at
*https://www.mynavyhr.navy.mil/Career-Management/Personnel-Conduct-
Sep/Officer-Performance-Separation/* and
*https://www.mynavyhr.navy.mil/Career-Management/Personnel-Conduct-
Sep/Enlisted-Separations/*. A NAVPERS 1070/613 specifically written for
Navy service members who refuse the COVID-19 vaccine is located at
*https://www.mnp.navy.mil/group/navy-covid-19-reporting*
for Commanders use.
4.a.(2). Entry Level Separation (ELS). Commanders will continue separation
of Navy enlisted service members refusing the vaccine who meet ELS criteria
per MILPERSMAN (MPM) 1910-154. In accordance with MPM 1910-600, forward
completed administrative separation records to PERS-832 via email at
*PERS832COVIDVAXADSEPS(at)us.navy.mil* for filing in members official
military personnel file (OMPF).
4.b. Commanders will notify those Navy service members refusing the vaccine
who are executing funded or no-cost TAD orders for training, or any other
official purpose, to halt their assigned activity and return to their command
within five working days.
4.c. Generally, Navy service members refusing the vaccine will continue in
their assigned duties pending adjudication of separation processing and other
applicable administrative actions described within this NAVADMIN. Commanders
shall ensure appropriate risk mitigations remain in place to prevent the
spread of COVID-19. If, in the Commanders judgment, a local reassignment
becomes necessary, Commanders should coordinate disposition and timing with
their Immediate Superior in Command (ISIC).
5. Administrative Disposition Guidance.
5.a. The data reporting required by NAVADMIN 249/21, reference (k), meets
the requirements of MPM 1611-010 (officers) and MPM 1616-040 (enlisted) to
inform PERS-834 (officers) and PERS-832 (enlisted) of incidents that could
result in adverse action for officers and enlisted (E-6 through E-
9). However, if a Navy service member refusing the vaccine (including those
E5 and below) has a pending transfer, promotion or advancement: submit the
additional information, as described below, as soon as feasible to ensure
appropriate preemptive action is taken. Include *COVID-19 Vaccine Refusal*
in the subject line of the email.
5.a.(1). Officers. Email *PERS-834(at)navy.mil* with members name, rank,
brief description of the offense (e.g. COVID-19 Vaccine Refusal), pending
promotion/advancement status, and the commands POC (Name, rank/rate, email
and phone number).
5.a.(2). Enlisted. Email *PERS832COVIDVAXADSEPS(at)us.navy.mil* with
members name, rank and rate, brief description of the offense (e.g. COVID-19
Vaccine Refusal), pending promotion/advancement status, and the commands POC
90a
(Name, rank/rate, email and phone number).
6. Documentation in Fitness Reports and Enlisted Evaluations.
6.a. Officers.
6.a.(1). In accordance with reference (d), within 30 days of a Navy service
member refusing the vaccine, the reporting senior shall issue an adverse
special Fitness Report (FITREP) per MPM 1610-015 and BUPERSINST
1610.10E. These reports should be submitted no earlier than the *to* date
described below.
6.a.(2). The adverse special FITREP will document failure of the member to
comply with Individual Medical Readiness responsibilities as outlined
below. The adverse special FITREP shall document other facts as appropriate,
including any additional misconduct associated with vaccine refusal, as
described in BUPERSINST 1610.10E. The *to* date in block 15 of this adverse
special FITREP will be as follows: 2021Nov28 (active duty service members and
FTS/TAR), 2021Dec28 (SELRES). For Navy service members who requested an
exemption which was denied and subsequently refuse the vaccine, the *to* date
in block 15 shall be 14 days after expiration of the specified time to
commence vaccination as discussed in para 2.c. or the applicable date
specified in the previous sentence, whichever is later.
6.a.(3). The adverse special FITREP will contain no greater than a 2.0 in
block 35 (Military Bearing/Character) and no greater than a 2.0 in block 38
(Leadership). Block 42 (Promotion Recommendation) will be marked as
*Significant Problems*. The following sentence must be the opening statement
in block 41: *Member failed to maintain deployability or individual readiness
standards by refusing the order to receive the COVID-19 vaccine.* A report
without these marks and this statement will be rejected and returned for
correction.
6.b. Enlisted members.
6.b.(1). In accordance with reference (d), within 30 days of a Navy service
member refusing the vaccine, the reporting senior shall issue an adverse
special evaluation per MPM 1610-015 and BUPERSINST 1610.10E. The adverse
special evaluation will document failure of the member to comply with
Individual Medical Readiness responsibilities as outlined below. The adverse
special evaluation shall document other facts as appropriate, including any
additional misconduct associated with vaccine refusal, as described in
BUPERSINST 1610.10E. The *to* date in block 15 of this adverse special
evaluation will be as follows: 2021Nov28 (active duty service members and
FTS/TAR), 2021Dec28 (SELRES). For Navy service members who requested an
exemption which was denied and subsequently refuse the vaccine, the *to* date
in block 15 shall be 14 days after expiration of the specified time to
commence vaccination as discussed in para 2.c. or the applicable date
specified in the previous sentence, whichever is later. These reports should
be submitted no earlier than the *to* date described above.
6.b.(2). E-1 to E-6 Evaluations. The adverse special evaluation will
contain no greater than a 2.0 in block 36 (Military Bearing/Character) and no
greater than a 2.0 in block 39 (Leadership). Block 45 (Promotion
Recommendation) will be marked as *Significant Problems* and block 47
(Retention) will be marked as *Not Recommended*. The following sentence must
be the opening statement in block 43: *Member failed to maintain
91a
deployability or individual readiness standards by refusing the order to
receive the COVID-19 vaccine.* A report without these marks and this
statement will be rejected and returned for correction.
6.b.(3). E-7 to E-9 Evaluations. The adverse special evaluation will
contain no greater than a 2.0 in block 37 (Character) and no greater than a
2.0 in block 33 (Deckplate Leadership). Block 42 (Promotion Recommendation)
will be marked as *Significant Problems*. The following sentence must be the
opening statement in block 41: *Member failed to maintain deployability or
individual readiness standards by refusing the order to receive the COVID-19
vaccine.* A report without these marks and this statement will be rejected
and returned for correction.
7. Permanent Change of Station (PCS) orders execution guidance. Navy service
members refusing the vaccine who are under PCS orders will adhere to the
following guidance.
7.a. Navy service members and dependents who have not yet initiated PCS
travel shall not execute orders. Commands are directed to contact Navy
Personnel Command (NPC) for follow-on guidance per MPM 1611-010, MPM 1616-
040, and MPM 1616-050. NPC is standing by to address each specific case and
will authorize entitlements based on current location and situation.
7.b. For Navy service members and/or dependents who have already initiated
PCS travel, detaching and gaining commands shall make every effort to contact
those service members to advise them of the requirements of this
message. The service member should contact their detailer directly and each
case will be evaluated by NPC on a case by case basis. Commands are directed
to contact NPC for follow-on guidance per MPM 1611-010, MPM 1616-040 and MPM
1616-050. Per MPM 1320-308, members traveling under orders are considered to
be attached to the gaining command.
7.c. Commanders should contact their ISIC to discuss impacts on manning
resulting from this PCS orders execution guidance. ISICs should discuss
manning impacts with their respective Type Commander N1, officer and enlisted
community detailers, and placement coordinator (PERS 4013).
7.d. For new accession Navy service members in the accession training
pipeline, (e.g. Recruit Training Command and A and C Schools) who refuse the
vaccine and do not have a pending exemption request, Commanders will
immediately interrupt their training, place them in an Interrupted
Instruction (II) status and hold them at current activity.
7.e. For new accession Navy service members in the accession training
pipeline, (e.g. Recruit Training Command and A and C Schools) who have a
pending exemption request, Commanders will continue their accession level
training (including transfer between schools), but will not transfer them to
their ultimate assignment until adjudication of their exemption
request. Once complete with all available accession level training,
Commanders will place the service member in an Interrupted Instruction (II)
status and hold them at current activity until the exemption request is
adjudicated.
8. Bonuses, Special Pays and Incentive Pays. Navy service members refusing
the vaccine may not enter into any new agreements for bonuses, special pays,
or incentive pays and any unearned portion of current bonuses, special pays
and incentive pays will be recouped in accordance with references (r) through
92a
(u). Examples include, but are not limited to, the following: career
retention bonuses, enlistment bonuses and incentive pays (such as flight
pay). Bonuses, special pays and incentive pays become unearned when a Navy
service member refusing the vaccine is no longer performing duties for which
they are receiving such a bonus, special pay, or incentive pay (i.e. removed
from assignment).
8.a. Bonuses, special pays and incentive pays become unearned as soon as one
of the following criteria is met:
8.a.(1). Removed from the assignment.
8.a.(2). Associated NEC/AQD/warfare qualification is removed.
8.a.(3). Separated.
8.b. Actions required by Commanders with regard to special and incentive
pays.
8.b.(1). For assignment or incentive pays, if a Navy service member is
removed from an assignment, the Commander shall notify the office responsible
for any special and incentive pays of the change of assignment. For
Assignment Incentive Pay (AIP), notify PERS-40DD via email at
*Mill_aip(at)navy.mil*. For Special Duty Incentive Pay notify PERS-40DD via
email at *Mill_sdip(at)navy.mil*. For Special Duty Assignment Pay, notify
the servicing Personnel Support Detachment/Transaction Support Center and the
rating detailer.
8.b.(2). For bonuses, if a Navy service member is removed from an assignment
and is no longer eligible for a bonus, notify the office responsible for that
bonus. For Selective Reenlistment Bonuses, notify OPNAV (N130) via email at
*nxag_N130D(at)navy.mil*.
8.b.(3). Upon removal from an assignment, Commanders will ensure the NAVPERS
1070/613 specifically written for Navy service members refusing the vaccine
is completed and saved in the service members electronic service
record. This NAVPERs 1070/613 can be found at
*https://www.mnp.navy.mil/group/navy-covid-19-reporting*.
9. Education. Navy service members refusing the vaccine are not eligible to
continue Navy education opportunities and those who fail to complete a
service obligation incurred for participating in Navy funded full-time, part-
time, or off-duty education programs per OPNAVINST 1520.23C will be required
to reimburse the cost of the education received, prorated for the obligated
time served.
9.a. Institutional Education. Navy service members refusing the vaccine who
incurred a service obligation for an education benefit (e.g. USNA, ROTC,
Naval Postgraduate School, Health Professional Scholarship Program or in-
residence Professional Military Education), will have any unearned portion of
that education benefit recouped if separated before completing the service
obligation. Navy service members refusing the vaccine (as defined in para.
3) currently enrolled in such an education program will be dis-enrolled from
their program as soon as feasible and held at their institution or command
pending administrative separation. Note: Current USNA and ROTC Midshipmen
will be adjudicated by governing instructions as discussed in para. 3.a.
93a
9.b. Tuition Assistance (TA). Navy service members refusing the vaccine are
ineligible to receive TA. Commanders must withdraw command approval for any
TA courses not yet convened. Commanders will direct withdrawal from TA
courses which have convened and require proof of withdrawal. Navy service
members will be responsible for reimbursing the Navy for the amount listed on
the TA Authorization Voucher. Officers administratively separated prior to
completing the statutory two year obligation for receipt of TA will incur a
debt.
9.c. SkillBridge. Navy service members refusing the vaccine are not
eligible to participate in the SkillBridge program. Commanders will
immediately remove SkillBridge approval and recall Navy service members
refusing the vaccine as indicated below.
9.c.(1). Navy service members assigned to commands in the Continental United
States (CONUS) will return to their permanent duty station at their own cost
within five days of recall order. If the command is deployed or underway,
Sailors will report to the Transient Personnel Detachment in their home port.
9.c.(2). Navy service members assigned to commands outside the Continental
United States (OCONUS) will report to the nearest CONUS Transient Personnel
Detachment at their own cost as directed by their command within five days of
recall order.
9.d. Navy Credentialing Opportunities Online (COOL). Navy service members
refusing the vaccine are not eligible for Navy COOL funding for examinations
or related credentialing fees. Commanders will withdraw approval of
unexecuted vouchers and withhold future voucher approval for Navy service
members refusing the vaccine.
10. Navy Training. In cases where there is a clearly defined service
obligation that is not met, the cost of Navy training will be recouped,
prorated to the obligated time served. Additionally, each case of a Navy
service member refusing the vaccine will be evaluated for recoupment of
training costs based on individual circumstances such as total cost, service
obligation, and the Navy’s realized return on investment for training
received.
11. Reenlistments and Extensions. Navy service members refusing the vaccine
are not eligible for re-enlistment, and may not extend their enlistment. If
a Navy service member refusing the vaccine has entered into an extension
agreement that is not yet operative (has not yet taken effect), Commanders
must cancel these agreements to extend enlistment. The inoperative extension
can be cancelled by the personnel office by completing the cancellation
section of NAVPERS 1070/621 or NAVPERS 1070/622 and processing the
corresponding NSIPS event per MPM 1160-040.
12. Promotion and Advancement. Navy service members refusing the vaccine
who are in a frocked status should be defrocked as soon as feasible (officers
per SECNAVINST 1420.2B, enlisted per BUPERSINST 1430.16G). Spot promoted
officers refusing the vaccine should be replaced as soon as feasible. Once
removed from the applicable spot promote billet, the command should contact
the members detailer and PERS-806 to remove the spot promotion.
12.a. Officer Promotion Delay. Commanders shall delay the promotion of any
officer refusing the vaccine and shall submit a NAVPERS 1070/13 to
94a
*NPC_promotionwithholds.fct(at)navy.mil* stating the members promotion is
delayed due to COVID-19 vaccine refusal (per SECNAVINST 1420.3 or SECNAVINST
1412.6M). Delays shall be based upon pending administrative action and
physical qualification. Navy Personnel Command will make formal written
notice to the officer following notification from the Commander. A NAVPERS
1070/613 specifically written for Navy service members who refuse
the COVID-19 vaccine is located at
*https://www.mnp.navy.mil/group/navy-covid-19-reporting* for Commanders use.
12.b. Enlisted Advancement Withhold. Commanders shall withhold the
advancements of any enlisted member refusing the vaccine, to include
preventing automatic Time-In-Rate advancements for E-2/E-3 and advancement
for any Sailors in a frocked status for paygrades E-3 through E-9.
12.c. Enlisted Advancement Withdrawal. The date of the special adverse
evaluation from paragraph 6.b. above constitutes a permanent withdrawal of
advancement recommendation effective as of the date of the reporting seniors
signature. An example NAVPERS 1070/13 for enlisted members pending
advancement is available in BUPERSINST 1430.16G, Chapter 7.
13. Community sponsor flag officers are authorized to make determinations
within their communities regarding removal of warfare qualifications,
additional qualification designations (AQD), Navy Enlisted Classifications
(NEC), or sub-specialties for Navy service members refusing the vaccine. Any
decision to remove warfare qualifications, AQDs, NECs, or sub-specialties
shall be consistent with current community policies and normal practices for
Navy service members who do not maintain deployability or individual
readiness through their own actions. These decisions, when based solely on
refusing the vaccine, must be administrative in nature rather than punitive.
14. If in doubt as to how to adjudicate issues related to a Navy service
member refusing the vaccine, Commanders should seek guidance from their chain
of command, their staff judge advocate, and/or the CCDA before acting. In
all cases, Commanders are accountable to ensure the health and safety of
their command while treating every Navy service member with dignity and
respect.
15. Points of contact.
My Navy Career Center: 833-330-6622, *askmncc(at)navy.mil*.
Retirements and Separations (PERS-8): *MILL_Pers-8(at)navy.mil*,
(901) 874-3264.
Bonus Programs, Special and Incentive Pays (OPNAV N130D):
*nxag_n130d(at)navy.mil*.
Enlisted Force Plans and Policy (OPNAV N132): *NXAG_N132C(AT)navy.mil*.
OPNAV POC: CAPT Jason Grizzle, *ALTN_N1_NAVY_SCR.FCT(AT)NAVY.MIL*.
16. Released by VADM John B. Nowell, Jr, COVID Consolidated Disposition
Authority.
BT
#0001
NNNN
UNCLASSIFIED//
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 35 of 46 PageID 2744
95a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
l!J.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
Plaintiffs,
Case No. 4:21-CV-01236-O
V.
LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
Defendants.
SUPPLEMENTAL DECLARATION OF LANNY F. LITTLEJOHN
I Lanny F. Littlejohn, hereby state and declare as follows:
r I. I am a Captain in the United States Navy, currently serving as the Force Medical
Officer of U.S. Naval Special Warfare Command (NSWC), located in Coronado, California,
whose mission is to provide maritime special operations forces (SOF) to conduct full spectrum
operations, unilaterally or with partners, to support national objectives. As the Force Medical
Officer, I am the senior ranking medical professional at NSWC and have ultimate responsibility
for medical readiness, combat casualty care, quality healthcare delivery, medical research
oversight, medical waivers to physical standards, and am the credentialing and privileging
authority for all providers within the NSW claimancy. I make this declaration in my official
App033
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 36 of 46 PageID 2745
96a
capacity, based upon my personal knowledge and upon information that has been provided to me
in the course of my official duties.
2. I have been assigned to my current position since January 10, 2020. Prior to my
current assignment, I served as Command Surgeon, Naval Special Warfare Development Group;
Chair of Emergency Medicine, Naval Medical Center Camp Lejeune; Diving Medical Officer,
EOD Group TWO; and Flight Surgeon, VMAQ-4. I am also a board certified Emergency
Physician, Assistant Professor of Military and Emergency Medicine at the Uniformed Services
b niversity, and Chair of the Technology Subcommittee for the Committee on Tactical Combat
Casualty Care for the Defense Health Agency. In my current duties, I am responsible for setting
policy and procedures relevant to the health, medical readiness, and medical capabilities of
Naval Special Warfare operationally and in garrison.
3. I have reviewed the preliminary injunction order issued in the above captioned
case on January 3, 2022. The order misinterprets Navy Instructions MANMED1 § 15-
105(3)(n)(9) and Trident Order2 #12 and draws incorrect conclusions regarding applicable Navy
policies. Citing to MANMED § 15-105(3)(n)(9) and Trident Order #12, the order determines,
"[t]hose who receive religious accommodations are still 'medically disqualified.' That means
Plaintiffs would be permanently barred from deployment, denied the bonuses and incentive pay
1
Navy's Manual of the Medical Department ("MANMED"), Chapter 15, Physical Examinations
and Standards for Enlistment, Commission, and Special Duty.
2
Trident Order #12 was issued on September 24, 2021. The directive does not set forth new
policies concerning vaccination requirements or processes by which members request medical or
administrative exemptions, though it does set forth deadlines for Naval Special Warfare (NSW)
personnel Oike for the 33 of the 35 Plaintiffs within the NSW claimancy in the above-referenced
case) to submit such requests. Service members with questions related to medical exemptions
were advised to consult with their medical provider. Trident Order #12 ,r 6.b. Service members
were advised to contact their chaplain for assistance with religious accommodation requests. Id
,r 6.c.
2
App034
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 37 of 46 PageID 2746
97a
that accompany deployment, and deprived of the very reason they chose to serve in the
i avy. By contrast, those receiving medical accommodations are not medically disqualified-
ley receive equal status as those who are vaccinated." Op. 11-12. The order also concludes,
"even if the Navy were to grant a religious exemption, that exemption would still receive less
favorable treatment than its secular counterparts. Those who receive religious exemptions are
medically disqualified. Those who receive medical exemptions are not. But the activity itself:-
forgoing the vaccine-is identical." Id. at 14. These findings incorrectly conflate the COVID-
9 exemption process with military medical readiness and deployability requirements.
4. A service member that meets all medical requirements for special operations (SO)
uty is termed "Physically Qualified" (PQ). A service member that does not meet these medical
iequirements is termed "Not Physically Qualified" (NPQ). The MANMED provides that "[o]nly
the most physically and mentally qualified personnel should be selected, and those who are or
may be reasonably expected to become unfit or unreliable must be excluded." MANMED § 15-
1°5(1 ). Special operations personnel are subject to stringent medical requirements by virtue of
the nature of their military duties:
Special operations (SO) duty takes place in every part of the world under harsh
conditions at the extremes of human physical capabilities. Medical austerity and
the presence of armed opposition are common. SO personnel, depending on
service and warfare community, routinely engage in high-risk operations
including parachuting, high angle activities, high-speed boat and unconventional
vehicle operation, weapons operation, demolitions employment, and waterborne
activities, to include SCUBA diving. As such, SO duty is among the most
physically and mentally demanding assignments in the U.S. military.
Id
5. MANMED § 15-105(4)(a) further describes the circumstances under which a
Service member might become medically disqualified from special operations duty:
3
App035
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 38 of 46 PageID 2747
98a
Any disease or condition causing chronic or recurrent disability or frequent health
care encounters, increasing the hazards of isolation, or having the potential for
significant exacerbation by extreme weather, stress, hypobaric or hyperbaric
environments, or fatigue is disqualifying. Conditions and treatments causing a
significant potential for disruption of operations are disqualifying.
Anyone that is NPQ must have a "Waiver to Physical Standards" recommended by the Navy
Bureau of Medicine (BUMED) and approved by the Navy Bureau of Personnel (PERS). A PQ
finding, or a waiver to the physical standards ifNPQ, is required to be medically fit for special
operations and deployable.
6. A medical waiver to the physical standards is a separate determination that would
come after a medical exemption or administrative exemption, such as religious accommodation,
for the COVID-19 vaccine. Accordingly, if a service member receives an
exemption/accommodation to the COVID-19 vaccine for any reason they would have to engage
in this subsequent process to be cleared for full duty by the Navy. That is, a service member
who receives an exemption or accommodation from the COVID-19 vaccination requirement,
l hether for religious or secular reasons, is not PQ unless he or she obtains separate medical
clearance. Moreover, the service member may also need a separate medical waiver from the
Combatant Command (CCMD) to enter that commander's geographic area of
responsibility. Different CCMDs may have specific requirements for vaccination based on the
endemic biomedical threats that naturally exist in their geographic area as well as any biowarfare
threats from adversaries. An unvaccinated member who deployed to a geographic region where
there is an endemic infectious disease would put not only his health at risk, but also the health of
any other service member, any partner forces with which SOF work regularly, and other host
nation personnel. Thus, a determination that a member is not deployable takes into account the
i sk to other personnel, the risk to mission as well as the unvaccinated member. These
4
App036
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 39 of 46 PageID 2748
99a
deployability determinations do not take into account whether a member is unvaccinated for
secular or religious reasons; all unvaccinated service members are treated the same for purposes
of determining whether they should receive a medical waiver that would render them fit for
special operations duty.
7. Receiving a medical exemption for the COVID-19 vaccine does not automatically
r nder a service member deployable; he or she must undergo the process described in the prior
laragraph. Indeed, many of the common reasons that a service member may receive a medical
exemption from an immunization requirement may also make the service-= member NPQ and
nondeployable. For example, BUMEDINST 6230.15B ,r 2.6 lists immune competence,
pharmacologic or radiation therapy, pregnancy and/or previous adverse response to
Lunization as common reasons for a medical exemption from an immunization. 3 The first
L ee conditions would almost certainly lead to a NPQ finding for NSW and an inability for the
service member to get underway on conventional Navy units. The remaining example-
r evious adverse response to immunization-may provide the basis for a permanent medical
exemption request, but as I explained in my prior declaration, ECF 44, Ex. 14 (Deel. of Lanny
Littlejohn) ,r 10 (App 278-79), all requests for permanent medical exemptions from COVID-19
accination for personnel falling under NSWC authority have been denied. Moreover,
1
FMED § 15-105(4)(a) specifically states that "SO personnel reporting for duty following an
Jbsence of greater than 14 days due to illness or injury, hospitalization for any reason, or
reported on by a medical board must have a properly documented UMO [undersea medical
3
BUMEDINST 6230.1 SB ,r 2.6 also lists evidence of immunity based on serologic tests,
documented infection, or similar circumstances as a possible basis for a medical exemption for
an immunization. However, pursuant to DoD policy a prior COVID-19 infection, by itself, is not
grounds for a medical exemption to the COVID-19 vaccination requirement.
5
App037
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 40 of 46 PageID 2749
100a
officer] evaluation to determine fitness for continued SO duty." Again many of the reasons a
service member might receive a medical exemption for an immunization would fall into this
category. This is why a service member who cannot receive the COVID-19 vaccine for medical
rns (or any other reason) will stil be NPQ from SO ducy until a separate medical waiver is
granted by BUMED and PERS. This requirement is specifically delineated in Trident Order
! 124 which states:
For Special Operations qualification requires a separate waiver that is in addition to
waiver of the COVID-19 vaccine requirement for all service members.
Id. ,i 6.d.
8. Clinical Trials. I am not aware of any NSW personnel participating in
clinical research trials concerning COVID-19 vaccines or other COVID-19 medications or
treatments. Furthermore, I am not aware of DoD or the Navy conducting or sponsoring any such
trials or studies. See DoDI 3612.02 and SECNAVINST3900.39E CH-I (promulgating standards
for human research and clinical studies conducted or sponsored by DoD and the Navy).
Choosing to participate in a clinical trial outside the DoD health care system or sponsorship is
larticipating in an elective medical procedure. Navy personnel are required to receive
counseling from a military health care provider prior to receiving or engaging in elective medical
care outside the military health care system. BUMEDINST 6320.103, Encl. 2 ,i4.a. Personnel
who do not receive counseling prior to receiving or engaging in elective medical care will be
4
Trident Order #12 was issued on September 24, 2021. The directive does not set forth new
policies concerning vaccination requirements or processes by which members request medical or
administrative exemptions, though it does set forth deadlines for Naval Special Warfare (NSW)
I?ersonnel (like for the 33 of the 35 Plaintiffs within the NSW claimancy in the above-referenced
case) to submit such requests. Service members with questions related to medical exemptions
were advised to consult with their medical provider. Trident Order #12 ,i 6.b. Service members
were advised to contact their chaplain for assistance with religious accommodation requests. Id
,i 6.c.
6
App038
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 41 of 46 PageID 2750
101a
counseled and could undergo a fitness for duty determination. Id. at ,J4.e. If NSW personnel
rre to participate in such a study or trial that required him to remain unvaccinated, he would
very likely be found NPQ as discussed in the preceding paragraphs.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct. Executed this 19th day of January, 2022.
l:dtL~
Captain, Medical Corps, U.S. Navy
7
App039
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 4 of 46 PageID 2713
102a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
Plaintiffs,
Case No. 4:21-CV-01236-O
V.
LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
Defendants.
DECLARATION OF WILLIAM K. LESCHER
I, William K. Lescher, hereby state and declare as follows:
1. I am an admiral 1 in the United States Navy, currently serving as the Vice Chief of
Naval Operations (VCNO), located in Arlington, Virginia at the Pentagon. The position of
VCNO is appointed by the President, with the advice and consent of the Senate, and is the
second highest uniformed Officer in the Navy. I have served in this position since May 29,
2020. I make this declaration in support of the Government's motion for a stay of this Court's
preliminary injunction pending appeal. The statements made in this declaration are based on my
1
The rank of"admiral" is lhe highest military rank in the Navy. The term "admirals" is also frequently referred to
as "nag oflicers." Flag officers include the ranks of rear admiral (lower half), rear admiral (upper half). vice admiral
and admiral. Flag officers comprise the most senior levels of uniformed leadership in the Navy.
App002
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 5 of 46 PageID 2714
103a
personal knowledge, my military judgment and experience, and on information that has been
provided to me in the course of my official duties.
Preliminary Statement
2. I have reviewed the preliminary injunction order issued by this Court on January
3, 2022. I believe the Court's injunction will cause immediate harm to the Navy, and in
particular to the operations of Naval Special Warfare (NSW) and Special Operations Forces
(SOF), and to the national security of the United States. Operationally, in 2021, the Navy
executed more than 30,000 steaming days and one million flying hours to protect America, deter
conflict and keep the sea lanes open and free. The Court's injunction directly impacts the
Navy's ability to carry out its responsibilities to protect and maintain the health and safety of our
Force, in particular our ability to halt the spread of COVID-19 through a mandatory vaccination
requirement. Unvaccinated or partially vaccinated service members are at higher risk to contract
COVID-19, and to develop severe symptoms requiring hospitalizations that remove them from
their units and impact mission execution. Vaccination against COVID-19 has proven to be
essential in keeping Navy units on mission by mitigating the impact of COVID-19. Fully
vaccinated naval forces are required to ensure readiness to carry out Navy missions throughout
the world and, if required, to engage in combat operations. Restriction of the Navy's ability to
reassign unvaccinated personnel in order to mitigate COVID-19 related risks to units preparing
to deploy, or that are deployed, will cause direct and immediate impact to mission execution.
Further, the harm caused by this injunction is not limited to 35 unvaccinated Plaintiffs. The
heath, readiness, and mission execution of broader conventional Navy units and personnel who
support these personnel are threatened as well.
2
App003
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 6 of 46 PageID 2715
104a
Naval Background and Experience
3. As the Vice Chief of Naval Operations,2 I work in coordination with the Chief of
Naval Operations (CNO), the senior admiral in the U.S. Navy, 3 in the execution of his statutory
duties and responsibilities as they pertain to the employment of the Navy. Those duties include
recruiting, organizing, supplying, equipping, training, servicing, mobilizing, demobilizing,
administering, and maintaining the Navy, as will assist in the execution of any power, duty, or
function of the Secretary of the Navy or the Chief of Naval Operations. Additionally, the CNO
delegated several specific responsibilities to me. I oversee programs and policies that impact
Sailors and their families, including health affairs, and monitor and enact polices that promote
good order and discipline in the Navy.
4. l have served in the United States Navy for nearly 42 years. A 1980 graduate of
the United States Naval Academy, my experience includes command of the Vipers of Helicopter
Anti-Submarine Light (HSL) Squadron-48, the Airwolves of HSL-40 and the Maritime Strike
Wing Atlantic. As Commanding Officer, HSL-48, my responsibilities included training,
preparing, and executing Seahawk helicopter detachment deployments on Navy ships deploying
worldwide. As Commanding Officer, HSL--40, I was responsible for the training, evaluation, and
maintenance of the Seahawk helicopter squadron that trains all East Coast Seahawk pilots in
employment of this weapon system. As Commander, Maritime Strike Wing Atlantic, I was
responsible for the material readiness and training of eight Helicopter Maritime Strike (HSM)
2
"The [VCNO] has such authority and duties with respect to the Department of the Navy as the Chief of Naval
Operations, with the approval of the Secretary or the Navy. may delegate to or prescribe for him. Orders issued by
the [VCNO] in performing such duties have the same effect as those issued by the Chief of Naval Operations." JO
U.S.C. § 8035(c).
3
The CNO is the senior uniformed officer in the United States Navy. See 10 U.S.C. § 8033(b) ("The Chief of Naval
Operations, while so serving. has the grnde or admiral without vacating his pcrman~nl grade. In the performance or
h is duties within the Department of the Na\'y. the Chier or Naval Operation~ takes precedence ahove all other
o fliccrs o r the naval sen ice.") .
App004
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 7 of 46 PageID 2716
105a
squadrons, the Weapons School, Fleet Replacement Squadron, and a total of 42 detachments
deploying on Atlantic Fleet aircraft carriers and air capable ships, encompassing 68 aircraft and
1,900 personnel. Between command of the Vipers and Airwolves, I was the executive officer of
Mine Countermeasures Command and Control Ship USS Inchon (MCS I 2), a 20,000 ton vessel
with a crew of 700. As the second in command, I was responsible for the supervision, training
and development of the crew and the daily execution of the command mission, which included
training and preparing the crew for deployment, maintaining and improving operational
readiness and material condition of the ship. As a flag officer, I commanded Expeditionary
Strike Group 5 (ESG-5) and Task Forces 51/59 (CTF 51/59) in Bahrain, leading multiple
Amphibious Ready Groups, Marine Expeditionary Units and the afloat forward staging base
USS Ponce (AFSB(l)-15) in execution of theater security events, combat operations, and
emergent national taskings spanning the Middle East/Central Command region. My
responsibilities as ESG-5 and CTF 51/59 included muhiple events working with NSW forces
embarked on my ships and interoperability exercises with partner countries. I also served as
Joint Staff deputy director for resources and acquisition, deputy assistant Secretary of the Navy
for budget, and Deputy Chief of Naval Operations for integration of capabilities and resources.
Specific Functions of the United States Navy
5. The United States Navy and Marine Corps comprise the Nation's principal
maritime forces. Their missions are to provide globally deployable forces in order to "secure the
Nation from direct attack; secure strategic access and retain global freedom of action; strengthen
existing and emerging alliances and partnerships; establish favorable security conditions; deter
aggression and violence by state, non-state, and individual actors and, should deterrence fail,
prosecute the full range of military operations in support of U.S. national interests." See
4
App005
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 8 of 46 PageID 2717
106a
Department of Defense Directive (DoDD) 5100.01, Change 1, 09/17/2020, Encl. 6, 'I[ 5.a. - b
(attached hereto). Effective execution of all of these discrete functions is vital to the national
security of the United States, and is accomplished by providing fully trained and qualified naval
forces to joint commanders4 to deter aggression and, if required, engage in combat operations
and win decisively.
Naval Special Warfare (NSW) and Special Operations Forces (SOF)
6. Naval Special Warfare (NSW) and Special Operations Forces (SOF) are
composed of Navy SEALs5 and Special Warfare Combatant-Craft Crewmen (SWCC). The
NSW team is a multipurpose combat force organized and trained to conduct a variety of special
operations missions in all environments. Navy SEALs conduct clandestine missions infiltrating
their objective areas by fixed and rotary-wing aircraft, Navy surface ships, combatant craft,
submarines and ground mobility vehicles. Service members designated as Navy SEALs consist
of officers and enlisted members who have been designated pursuant to Navy and NSW policies.
SWCC focus on infiltration and exfiltration of SEALs and other SOF to include from other
Services, and they provide dedicated rapid mobility in maritime environments, as well as the
ability to deliver combat craft via parachute drop. SWCC operate and maintain state-of-the-art
surface craft to conduct special operations.
7. In addition to SEALs and SWCC, combat support (CS) and combat service
support (CSS) personnel are assigned to NSW units to support the mission. CS/CSS personnel
~ Joint commanders arc the combatant vesled with aulhority and responsibility for mili1ary operalions within their
area of responsibility. The Navy and other branches of the Armed Forces provide forces to the combatant
commanders to execute those responsibilities and functions. The combalant commanders exercise authority,
dircclion and control over the commands and forces assigned to them and employ those forces to accomplish
missions assigned to the combatant commander. Departmenl of Defense Directive (DoDD) 5100.0 I, Change I,
no20,
09/ 17 Encl. I, Cf I .a through d.
s The term "SEAL" refers to ..Sea, Air, Land."
5
App006
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 9 of 46 PageID 2718
107a
include officers and enlisted service members identified in Plaintiffs' complaint (i.e., Explosive
Ordinance Disposal (EOD) personnel and Navy Divers), in addition to other officers and enlisted
service members performing a variety of military functions (e.g., chaplains, medical personnel,
mobile communications teams, tactical cryptologic support, etc.). Navy EOD personnel perform
missions neutralizing explosive weapons, including various weapons of mass destruction. Their
duties include detonating or demolishing hazardous munitions, neutralizing various ordnance,
including sea mines, torpedoes or depth charges, performing parachute or helicopter insertion
operations, and clearing waterways of mines in support of our military operations. Navy Divers
perform a variety of military functions, including wreckage salvage operations and underwater
repairs, harbor and waterway clearance operations, assisting in construction and demolition
projects, executing search and rescue missions, performing deep submergence operations, and
serving as technical experts for diving operations for numerous military special operations units.
8. Service members in the NSW force are responsible for performing special
operations. Special operations require unique tactics, techniques, procedures and equipment.
They are often conducted in hostile, austere or diplomatically sensitive environments, and are
characterized by one or more of the following: time-sensitivity, clandestine nature, low visibility,
working with or through host-nation forces, greater requirements for regional orientation and
cultural expertise, and a higher degree of risk. These missions often require members of the
NSW force to work in close quarters where social distancing is not possible. Small NSW teams
may travel for an extended duration on boats, submersibles, helicopters, aircraft, or other
vehicles that are less than six feet across, and/or which have limited ventilation. Service
members may be in such close quarters while traveling that they must sit shoulder-to-shoulder.
6
App007
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 10 of 46 PageID 2719
108a
Additionally, members may be required to operate in subsea environments and may have to
share diving rebreather devices and inhale one another's exhalation.
Mandatory Vaccination Requirements in Response to COVID-19 Pandemic
9. On August 24, 2021, the Secretary of Defense directed the Secretaries of the
Military Departments to immediately begin full vaccination of all members of the Armed Forces
on active duty or in the Ready Reserve. The Secretary of Defense determined that mandatory
COVID- 19 vaccinations are necessary to protect the health and military readiness of the force.
The Secretary of the Navy directed implementation of Secretary of Defense's COVID-19
vaccination mandate6 via a Department-wide administrative message (ALNAV) on August 30,
2021. The ALNAV applies to both Services within the Department of the Navy (DON), the
United States Navy and the United States Marine Corps. The ALNAV required all active duty
DON Service members, who were not already vaccinated, exempted, or currently seeking an
exemption, to be fully vaccinated with an FDA-approved COVID-19 vaccine within 90 days of
the ALNAV, and all Reserve Component personnel to be fully vaccinated within 120 days.
ALNA V 062/21 <j( 4. Active duty Sailors and Marines were required to become fully vaccinated7
by November 28, 2021, and Reserve Component Sailors and Marines by December 28, 2021.
The requirement to obtain full vaccination constitutes a lawful order under Article 92 of the
Uniform Code of Military Justice (UCMJ), and failure to comply may result in punitive or
adverse administrative action, or both. ALNAV 062/21 'I[ 5.
6
Secretary of Defense Memorand um, "Memorandum for Senior Pentagon Leadership, Commanders of the
Combatant Commands, Defense Agency, and DoD Field Activity Directors," (August 24, 202 1).
; Although refusal to receive the vaccine may subject a member lo adverse administrative or disciplinary action, the
vaccine will not be forcibly administered to any member who refuses.
7
App008
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 11 of 46 PageID 2720
109a
10. The United States Navy issued service-specific guidance via a separate
administrative message ("NAVADMIN") on September 1, 2021. NAVADMIN 190/21 outlines
Navy policy concerning the mandatory vaccination of Navy service members, vaccination
administration and reporting requirements, and general guidance related to logistics and
distribution of vaccines. The policy reiterates that COVID-19 vaccination "is mandatory for all
DoD service members who are not medically or administratively exempt" under existing Navy
policy. NAVADMIN 190/21 'I( 2, 3.a. Refusal to become fully vaccinated against COVID-19
without an approved or pending exemption constitutes a failure to obey a lawful order and is
punishable under Article 92, UCMJ.
The COVID-19 Pandemic Threat to Naval Forces
11. The judgment of each of the Military Services is that vaccines are the most
effective tool the Armed Forces have to keep our personnel safe, fully mission capable and
prepared to execute the Commander-in-Chiefs orders to protect vital United States' national
interests. As of January 5, 2022, 261,504 members of the Armed Forces have contracted the
COVID-19 virus, resulting in 2,320 hospitalizations and 82 deaths. Eighty of 82 members who
have died were unvaccinated. Of all active duty personnel who were required to be hospitalized
because of COVID-19, 0.8% received a booster shot prior to hospitalization. Separately, there
have only been six active duty personnel who have received a booster and had a breakthrough
COVID-19 infection that required hospitalization. Among the active duty force, 12% of those
required to be hospitalized have received a primary COVID-19 vaccine without the booster.
Among Reserve and National Guard service members, 97% of those hospitalized with COVID
were unvaccinated or partially vaccinated; 3% of hospitalized members received primary
vaccination but no booster shot; 0.2% hospitalized members had received a booster shot.
8
App009
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 12 of 46 PageID 2721
110a
Sending ships into combat without maximizing the crew's odds of success, such as would be the
case with ship deficiencies in ordnance, radar, working weapons or the means to reliably
accomplish the mission, is dereliction of duty. The same applies to ordering unvaccinated
personnel into an environment in which they endanger their lives, the lives of others and
compromise accomplishment of essential missions.
12. The environment in which Navy personnel operate -- in close quarters for
extended periods of time -- make them particularly susceptible to contagious respiratory diseases
such as COVID-19 and renders mitigation measures such as social distancing unrealistic. In
mid-March 2020, the aircraft carrier USS THEODORE ROOSEVELT (CVN 71) was deployed
to the Western Pacific Ocean, a vital geo-political center of gravity encompassing several of the
world's largest militaries and five nations allied with the U.S. through mutual defense treaties.
The leadership of USS THEODORE ROOSEVELT began to see several COVID-19 cases
among the crew. By April 1, 2020, USS THEODORE ROOSEVELT had been pulled off
mission and into Guam with approximately 1,000 crew removed from the ship, with a reduced
crew remaining to maintain the nuclear reactor and other essential systems. By April 20, 2020,
4,069 Sailors had been removed from the ship out of a crew of approximately 4,800. The ship
was unavailable for 51 days to maintain presence in a strategically important area which includes
the world's busiest sea lanes, creating a national security vulnerability in an area vital to our
national interests. When USS THEODORE ROOSEVELT finally got underway on May 21,
2020, approximately 1,800 Sailors remained in Guam. Tragically, one Sailor succumbed to the
COVID-19 virus and died.
13. Even with approximately 97% of the Navy vaccinated, the COVID-19 virus can
degrade units and impact mission. Last month, USS MILWAUKEE (LCS 5), with a 100%
App010
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 13 of 46 PageID 2722
111a
vaccinated 100-person crew, remained in port one week beyond its schedule because several
members tested positive for COVID-19. Because the full crew was vaccinated, infected
personnel were asymptomatic or had mild symptoms and the impact to mission accomplishment
was substantially mitigated compared to the USS THEODORE ROOSEVELT's experience of
more than 4,000 crew removed from the ship and a 51-day loss of mission. Given the
hospitalizations and death statistics cited above, the MILWAUKEE's minor deployment delay
would likely have been far worse with unvaccinated personnel. The MILWAUKEE is one
example of a Navy manning model where each individual crew member has a high level of
responsibility with little redundancy. The medical staff of the MILWAUKEE consists of only
two Navy Hospital Corpsman, comparable to an Emergency Medical Technician in the civilian
setting. There is little ability on ship to care for a service member with severe COVID
symptoms. If a service member were to develop severe symptoms on this type of ship, it would
require a return to port or an emergency medical evacuation by helicopter. Helicopter medical
evacuation is not always viable due to the location of the ship and the limited range of
helicopters. At the deployable unit level, NSW, EOD, and diver personnel operate in units that
can be as small as a squad of four personnel. Medical evacuations in these small units can be
even less practical and significantly more damaging than the loss of an equal number of crew on
a ship the size of the MILWAUKEE.
14. The types of missions conducted by SEALs, SWCC, EOD and divers cannot be
conducted remotely. A SEAL assigned to perform a counterterrorism mission in a foreign
country cannot perform that task from home; a SWCC cannot drive a combatant craft and
transport SEALs in a telework status; an explosive ordnance disposal technician- whose job it is
to disarm and dispose of explosives-cannot perform that task remotely. Similarly, the arduous
10
App011
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 14 of 46 PageID 2723
112a
training necessary to prepare NSW personnel for these missions cannot be performed remotely.
It is not possible for a Navy Diver to remotely prepare compressed air and oxygen tanks for
personnel to complete their training dives. A safety diver must be physically present during a
high-risk training evolution that may require rescue divers or oxygen technicians. In particular,
Navy Divers assigned to NSW must be able to operate a diving recompression chamber- a small
confined space where the Navy Diver must be in the chamber to assist with the personnel
casualty - which cannot be done remotely. SEAL trainers cannot oversee dangerous swim or
survival training from a physically distanced location. NSW personnel also routinely interact
with the greater Navy population, on ships and aircraft, and in dining facilities and office
environments across the globe. They are required to deploy with no-notice. NSW, EOD and
diver training and operations necessitate our service members interact in close-quarters, confined
spaces, and under conditions where telework, social distancing, and mask-wearing are not
reliable mitigation options.
Immediate Harm to Readiness and Mission Accomplishment
15. The preliminary injunction forbids the Navy from applying MANMED § 15-
l 05(3)(n)(9), NAV ADMIN 225/21, NA VADMIN 256/21 and Trident Order# 12. Order 26, ECF
No. 66. MANMED § 15- l05(3)(n)(9) states that personnel who choose not to receive required
vaccinations will be disqualified from special operations duty. NAVADMIN 225/21 provides
guidance for disposition of offenses involving Navy service members who are not fully
vaccinated by the required deadlines. Navy Service members who refuse the COVID-19
vaccine, absent a pending or approved exemption, are required to be processed for administrative
separation.8 NAVADMIN 225/21 '( 2. A Navy Service member is considered to be "refusing the
8
Although processing for separation is required, this docs not automatically result in a member actually being
separated. Members processed for separation may ultimately be retained in the service.
11
App012
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 15 of 46 PageID 2724
113a
vaccine, if: ( 1) the individual has received a lawful order to be fully vaccinated, (2) is not or will
not be fully vaccinated by the date required, and (3) does not have a pending or approved
exemption request." Id. 'f 3.c. The policy designates the Chief of Navy Personnel, a 3-star
admiral, as the COVID-19 Consolidated Disposition Authority to ensure fair and consistent
administrative processing across the service. Id. at 1)15.b. For disciplinary matters, authority to
initiate disciplinary proceedings, either non-judicial punishment or court-martial, is withheld to
the Vice Chief of Naval Operations. Id. NAV AD MIN 256/21 provides additional guidance on
administrative separation processing for those refusing the vaccine, as well as guidance on other
applicable administrative actions. These other applicable administrative actions include:
cancellation of government travel for training or other official purposes; temporary reassignment
within the local area for unvaccinated personnel (with or without a medical exemption or
religious accommodation); adverse fitness reports and evaluations; prohibition on executing
permanent change of station orders; potential termination of special duty and incentive pays;
potential recoupment of unearned bonuses; termination of and potential reimbursement for
Navy-funded education and training; promotion and advancement delays; and removal of
additional qualification designations or Navy Enlisted Classifications.9 See NAV ADMIN 256/21
'II'II 4.b.through 13. Trident Order# 12, which is directed to the NSW force, does not create any
new requirements or adverse administrative actions. It consolidates and restates previously
promulgated Navy implementing guidance.
16. The preliminary injunction forbids the Navy from ..[t]aking any adverse
9
Navy Enlisted Classifications define the work performed by Navy enlisted members and the requirements to
perform specific "ratings" (i.e., occupations). See generally, MANUAL OF NAVY ENLISTED MANPOWER AND
PERSONNEL CLASSIFICATIONS AND OCCUPATIONAL STANDARDS, VOL II NAVY ENLISTED CLASSIFICATIONS
(NAVPERS I 8068F), April 21, 2021 (supplementing the enlisted rating structure in identifying personnel and billets
[i.e., jobs] and skills, knowledge, aptitude, or qualifications that must be documented to identify both people and
billets for management purposes).
12
App013
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 16 of 46 PageID 2725
114a
action against Plaintiffs on the basis of Plaintiffs' requests for religious accommodation." Order
26, ECF No. 66. The order specifically references actions that Plaintiffs allege are being taken
against them while they await a decision on their religious accommodation requests, actions such
as restrictions on travel, access to non-work activities, unpleasant assignments, and being
relieved of leadership duties. Order 26, ECF No. 66. This aspect of the order is intrusive and
harmful to Navy operations, including deployment decisions. In the Navy, ..adverse action"
refers to an action that is punitive or the action itself has a direct adverse impact on one's career
such as a court martial or discharge. The Court's order, however, indicates that routine
personnel actions, such as assignment, official travel and specific duties, are adverse decisions.
Contrary to the Court's apparent understanding, temporarily reassigning personnel to other units
because they are unvaccinated, regardless of the reason they are unvaccinated (e.g., medical
exemption, religious accommodation, or pending exemption request) is not an adverse action but
a step to protect the health of the whole unit and maintain mission readiness. The Court's
injunction appears to require the Navy to leave unvaccinated NSW, EOD, and diver personnel in
their units, performing their same duties and deploying on missions regardless of the known risk
to personnel and mission. Such an injunction will degrade NSW, EOD, and diver mission
readiness, breakdown good order and discipline within the NSW force, unnecessarily limit the
Navy's ability to conduct daily operations and operational missions, and could clearly result in
mission failure in contingencies and crises that cause harm to national security.
17. NSW personnel must be fully medically ready and at peak fitness given that their
training and missions are physically demanding and arduous. It is vital that all members of the
NSW force be medically fit to perform daily operations and to train or deploy on short notice.
Regardless of their current assignment, all naval forces, NSW in particular, must be ready to
13
App014
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 17 of 46 PageID 2726
115a
respond to contingencies and crises around the world. All NSW personnel are expected to meet
this requirement, whether in a training status, on instructional duty, or at a headquarters, as the
mission of NSW is to be ready to provide maritime SOF to conduct full spectrum operations to
support national objectives. The Navy could easily require Navy Special Warfare Command to
mobilize personnel outside from any unit, regardless of the planned deployment cycles of a unit
or the currently assigned duties of NSW personnel to respond to the full range of contingencies
and crises. Medical conditions or illness create risk, both medical and operational, not only for
the service member afflicted, but for other members of the unit. As a result, unvaccinated
personnel in a unit degrade the force health protection conditions in the unit, placing personnel in
the unit at risk and degrading the unit's ability to safely conduct operations, regardless of the
scope of the operation. The following publicly available mission event illustrates how rapidly a
NSW unit can go from steady state in the United States to deploying forward on a mission of the
highest difficulty, requiring peak medical, physical and mental readiness. This example
illustrates the rapid manner in which a contingency or crisis could unfold, and although more
than a decade old, is used due to the unclassified classification of my declaration.
18. On April 8, 2009, armed Somali pirates boarded the U.S.-flagged container ship,
Maersk Alabama in the Indian Ocean, taking the crew, composed of U.S. citizens, hostage and
making ransom demands. USS BAINBRIDGE (DDG-96) was the first ship of the international
counter-piracy task force to respond. BAINBRIDGE's commanding officer realized he needed
additional capabilities beyond what he had available on the ship. In response, on short notice, a
SEAL team flew 8,000 miles from the United States to USS BAINBRIDGE and were recovered
onboard. By the evening of April 12, 2009, the situation escalated and SEALs on
BAINBRIDGE eliminated the threat to the remaining hostage, Maersk Alabama Captain
14
App015
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 18 of 46 PageID 2727
116a
Phillips, who was subsequently rescued. This is but one example, using a well-publicized
mission, that illustrates how an unvaccinated member would put himself, his teammates, the
conventional forces and the mission at great risk. While NSW personnel may be assigned to
various units with various mission-sets, all naval forces must be ready to respond to global
contingencies and crises on short notice.
19. If this type of crisis or contingency occurred today, with the Court's preliminary
injunction in place, the Navy could be required to deploy a SEAL team with one or more
unvaccinated members, risking a COVID-19 outbreak within that unit or on the host Navy
destroyer. Destroyer crews, and others embarked aboard, sleep in confined shared berthing
spaces, are in close proximity in passageways, and eat meals in a communal galley. An
unvaccinated service member is not only more likely to contract COVID-19, but to experience
significant disease symptoms, impact the mission and spread the disease to others.
20. Navy ships have limited health care facilities. A Sailor experiencing severe
COVID symptoms would require the ship to pull into port instead of executing its mission.
NSW forces often deploy in countries with little or no healthcare support structure and in remote
areas where healthcare is scarce. This is why there has been a long-standing requirement for all
members of the NSW force to be fully medically ready to deploy. A small number of SOF
medical personnel provide limited medical support and patient movement; therefore, any
encumbrance placed on that limited capability unnecessarily puts the mission and the force at-
risk. While some SEALs are trained to perform emergency, life-saving procedures in remote and
hostile environments, those personnel are not physicians or nurses. Unlike doctors and nurses,
formal civilian medical licenses are not required for them. They do not generally have the
capability, capacity or training to use a ventilator. Additionally, they do not have access to this
15
App016
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 19 of 46 PageID 2728
117a
equipment in the types of austere environments in which the NSW units operate. If a deployed
team member contracts COVID-19, there is a strong possibility that the necessary equipment or
treatment would not be readily available. Further, if medical evacuation is necessary for a
member of the unit, this creates additional risk not only to the mission, but places those service
members executing medical evacuation at a risk of harm to themselves such as when the member
requires transport from a hostile, remote or diplomatically sensitive areas.
21. Redirecting these assets and their crew to perform preventable evacuations results
in a degradation of the Navy's ability to accomplish its primary missions and incurs collateral
impacts. Medical evacuations often require one or more member from the service member's unit
to accompany the evacuated service member. The loss of even one member can degrade the
effectiveness of small NSW units and may compromise the mission. This is similarly the case
for SWCC personnel, who routinely operate with a crew of as little as four personnel on a
combatant craft. Every member of a SEAL team is vital.
22. Unvaccinated NSW personnel put conventional Navy forces at risk as well. Navy
SEALs are one of the most versatile elements of the SOF across all branches of the military
services, in part, because the Navy can deliver them to their mission locations through a variety
of conventional means (e.g., fixed-wing aircraft, helicopters, surface ships and submarines). All
of these means of delivery are confined spaces in which social distancing is impractical.
Because NSW personnel rely on conventional Navy forces to support their missions, any
unvaccinated NSW personnel will put the crew of those conventional forces at unnecessary risk
as well. The Navy must balance the risk to unvaccinated individuals and vaccinated personnel
alike. That risk calculation led to the mandatory vaccination mandate and associated personnel
policies pertaining to the COVlD-19 pandemic. It is imperative for the entire force, including
16
App017
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 20 of 46 PageID 2729
118a
every member of NSW, to be vaccinated and ready to deploy and execute assigned missions on
short notice.
23. The capabilities NSW personnel provide include crisis response, support
to forward presence operations, support to conventional Naval forces at sea and in training,
support to Law Enforcement agencies and clandestine insertion operations. EOD personnel
provide critical safety and response to units using live ordnance; Navy divers, EOD and SEALs
support underwater surveys and route clearances. SEALs conduct insertions and extractions by
sea, air or land; they capture high-value enemy personnel and terrorists around the world, carry
out small-unit direct-action missions against military targets and perform underwater
reconnaissance and strategic sabotage. SEALs, SWCC, EOD and divers frequently deploy to
foreign countries to train partners and allies and participate in exercises. Reducing the Navy's
ability to apply long-standing, proven medical readiness principles to this small, elite community
will clearly negatively impact the NSW force's ability to conduct their operations and could have
significant negative effects to the NSW force's ability to respond to large-scale contingencies or
crises. This would damage the national security interests of the United States and our foreign
allies and partners.
24. These concerns apply if the injunction requires the Navy to maintain these 35
Plaintiffs in their current status while an appeal is pending. Of the 35 Plaintiffs, 18 are assigned
to nine different parent commands and may deploy anywhere in the world in the immediate
future to perform the type of missions described. 15 Plaintiffs are assigned to the NSW Center
or a NSW Center subordinate command, with 14 of them assigned to NSW Advanced Training
17
App018
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 21 of 46 PageID 2730
119a
Command (ATC); 10 some as instructors who necessarily have close contact with ATC students
in courses to prepare them for NSW operations and some as students attending an advanced
training course before returning to their current or prospective assignment. Two Plaintiffs are
currently assigned to non-NSW training commands. Because the court's order prohibits them
from being temporarily reassigned, the 14 unvaccinated personnel at NSW ATC have close
contact with fellow instructors and students. These students then circulate among the larger NSW
community as soon as their courses at ATC end. Simply put, close quarters contact during
training creates the opportunity to contract COVID-19 from the unvaccinated instructors at ATC
detachments. The unvaccinated instructors can spread COVID-19 to dozens of candidates in
training, and qualified SEALs, SWCCs, and other personnel, including fellow instructors, at
NSW ATC training courses who will promptly return to their primary units or interact with
additional training classes.
25. In summary, the Navy's judgment is that COVID-19 vaccines are a critical defense
again~t COVID-19 and mitigate risk both to our force and to our mission. This judgment takes
into account the environments our service members operate in, the operations the Navy conducts,
and the absence of other effective COVID-19 mitigation measures in the environments in which
we operate. The COVID-19 virus has had a proven substantial impact on Navy unit readiness.
The Court's order, which bars implementation of the vaccine requirement and requires the Navy
to keep service members it has determined are not medically fit for deployment in a ready to
deploy status, will undermine military readiness through the spread of disease and cause
ao ATC's mission is to provide slandardized and accredited individual training and education for qualified NSW and
supporl personnel, U.S. SOF (i.e., from other Services), parlner nation SOF and other personnel, as required for
NSW Operations. There arc sl!vcral ATC detachments. The largest detachment in Coronado, California provides a
course of instruction 10 candidates (i.e., those seeking to obtain their SEAL or SWCC designatio n). II also provides
training to those already designated as SEALs, SWCC or combat supporl personnel. Other ATC detachments
provide training in specialized areas to NSW personnel, other SOF and partner nation SOF.
18
App019
Case 4:21-cv-01236-O Document 87 Filed 01/24/22 Page 22 of 46 PageID 2731
120a
significant harm to military operations by allowing unvaccinated service members to remain in
an unvaccinated status.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct. Executed this 19th day of January, 2022.
19
App020
121a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
Plaintiffs,
Case No. 4:21-C V -01236-O
V.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
Defendants.
DECLARATION OF LANNY F. LITTLEJOHN
I, Lanny F. Littlejohn, hereby state and declare as follows:
1. I am a Captain in the United States Navy, currently serving as the Force Medical
Officer of U.S. Naval Special Warfare Command (NSWC), located in Coronado, California,
whose mission is to provide maritime special operations forces (SOF) to conduct full spectrum
operations, unilaterally or with partners, to support national objectives. I make this declaration
in my official capacity, based upon my personal knowledge and upon information that has been
provided to me in the course of my official duties.
2. I have been assigned to my current position since January 10, 2020. Prior to my
current assignment, I served as Command Surgeon, Naval Special Warfare Development Group;
122a
Chair of Emergency Medicine, Naval Medical Center Camp Lejeune; Diving Medical Officer,
EOD Group TWO; and Flight Surgeon, VMAQ -4. I am also a board -certified Emergency
Physician, Assistant Professor of Military and Emergency Medicine at the Uniformed Services
University, and Chair of the Technology Subcommittee for the Committee on Tactical Combat
Casualty Care for the Defense Health Agency. As part of my duties currently, I am responsible
for the health, medical readiness, and medical capabilities to support members of Naval Special
Warfare operationally and in garrison.
3. Trident Order #12 was issued on September 24, 2021. The directive does not set
forth new policies concerning vaccination requirements or processes by which members request
medical or adminisirative exemptions, though it does set forth deadlines for Naval Special
Warfare (NSW) personnel (like for the 33 of the 35 Plaintiffs within the NSW claimancy in the
above-referenced case) to submit such requests. Service members with questions related to
medical exemptions were advised to consult with their medical provider. Trident Order #12 ¶
6.b. Service members were advised to contact their chaplain for assistance with religious
accommodation requests. Id ¶ 6.c.
4. Trident Order #12 also advised special operations personnel (i.e. SEALs, SWCC,
EOD) of a pre-existing policy outlined in the Navy's Manual of the Medical Department
("MANMED"), Chapter 15, Physical Examinations and Standards for Enlistment, Commission,
and Special Duty. 1 Medical requirements for NSW and special operations duty are outlined in
MANMED § 15105.2 The MANMED provides that "[o]nly the most physically and mentally
1
Trident Order #12 only applies to persons assigned to units under NSWC. Navy sea, are, and land personnel
(SEAL); Special warfare combatant craft crewmen (SWCC); and Explosive ordnance disposal (EOD) personnel fall
under the MANMED § 15-105 provisions applicable to special operations duty. Navy Divers are not subject to
MANNED § 15-105, and are instead subject to the provisions in the MANMED § 15-102, "Diving Duty."
2
Section 15-105 was first issued on August 12, 2005. MANIVIED Change 126, ¶ 2.d. The purpose of the new
section related to special warfare personnel was "to define the physical standards that will support the physical
demands and hazardous duty experienced by the NSW/SO service member." Id ¶ 2.d.(l). The new standards
2
123a
qualified personnel should be selected, and those who are or may be reasonably expected to
become unfit or unreliable must be excluded." MANMED § 15-105(1). Special operations
personnel are subject to stringent medical requirements by virtue of the nature of their military
duties:
Special operations (SO) duty takes place in every part of the world under harsh
conditions at the extremes of human physical capabilities. Medical austerity and
the presence of armed opposition are common. SO personnel, depending on
service and warfare community, routinely engage in high-risk operations
including parachuting, high angle activities, high-speed boat and unconventional
vehicle operation, weapons operation, demolitions employment, and waterborne
activities, to include SCUBA diving. As such, SO duty is among the most
physically and mentally demanding assignments in the U.S. military.
Id.
5. Special operations personnel frequently perform their duties in austere
environments and locations in which medical capabilities are lacking. If special operations
personnel are not fully medically ready or are at increased vulnerability for disease and injury,
there is an unnecessary increased risk to the mission, to the individual, to their teammates, and to
partner forces in the event of infectious disease such as SARS -CoV -2. In other words, SEALs,
one of the subsets of special operations personnel, often operate in small units (e.g., while
SEALs frequently deploy in platoons of 25 personnel, the platoons will use squads as maneuver
elements as small 4 personnel and may even send SEALs to operate alone or with a partner for
certain mission sets such as liaising, operating with, or training partner forces) and the
-
incapacitation of one member can significantly degrade the effectiveness of the unit and may
reflected the "necessity for freedom from chronic diseases that might deteriorate when in isolated non -medically
supported environments." Id. ¶ 2.d.(2). MANMED § 15-105 was revised on January 24, 2012 to provide greater
detail and to reflect changes in the special operations command structure. MANMED Change 139, ¶ 2. The article
was last revised on May 22, 2018, to update: (1) exam periodicity; (2) authorized examiners; (3) eyes, pulmonary,
endocrine, musculoskeletal, and psychological and cognitive guidance; and (4) guidance on the submission of
waivers. MAINIIVIIED Change 164, ¶ 1.d.(1)-(8).
124a
ultimately compromise the mission. This is similarly the case for Special Warfare Combatant -
Craft Crewmen (SWCC), another subset of special operations personnel, who routinely operate
with a crew of as little as four personnel on a combatant craft. It also puts the incapacitated
member and his teammates at increased risk of harm or death. Finally, SEALs often perform
duties in hostile areas in which a timely medical evacuation is not possible.
6. Because of the unique features of their duty, special operations personnel are
required to receive vaccinations in addition to those required for all Service members. See, e.g.
MANMED § 15-105(3)(b)(3) (requiring all special operations candidates and current operators
must be immunized against both Hepatitis A and B). Additionally, theater requirements may
necessitate additional vaccines such as rabies or Japanese Encephalitis, or SOF-specific
biowarfare vaccination against anthrax and Smallpox. Therefore, fully vaccinated individuals are
required due to the nature of special operations duty.
7. MANMED § 15-105(4)(a) describes the circumstances under which a Service
member might become medically disqualified from special operations duty:
Any disease or condition causing chronic or recurrent disability or frequent health
care encounters, increasing the hazards of isolation, or having the potential for
significant exacerbation by extreme weather, stress, hypobaric or hyperbaric
environments, or fatigue is disqualifying. Conditions and treatments causing a
significant potential for disruption of operations are disqualifying.
Under MANMED § 15 -105(4)(b) -(n), various conditions which may affect a Service member's
medical condition (e.g., vision, dental, musculoskeletal, pulmonary, cardiovascular, etc.) are
potentially disqualifying. Additionally, conditions necessitating the use of medications on a daily
or frequent basis, or conditions which require medication which would pose a significant health
risk if stopped for one month or more, are disqualifying. Id. § 15 -105(4)(n)(8)(b). Finally,
MANMED § 15-105(4)(n)(9) provides that "Candidate or SO designated personnel refusing to
125a
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."
Specific to COVID -19, there are multiple risks that an unvaccinated member may
face while in a deployed location. Individual risk of COVID-19 is not necessarily lower for SOF
than the general population. We are currently tracking several instances of "long COVID"
syndrome in operators and one case, in particular, of a member who had a life -threatening
experience resulting from COVID -19. If a member were to contract the infection while
deployed, there would be a minimum two-week quarantine requirement, along with all close
contacts, that would decrease operational availability, even if asymptomatic. Since COVID-19 is
highly infectious it risks not only the individual, but all teammates and all partner forces that
would come into contact with an infected individual. Many countries to which NSW forces
deploy are developing nations, or even fragile/failing states, with minimal medical capabilities.
A force not fully immunized in this context carries with an unacceptable high risk of adverse
medical outcomes, which further entail adverse operational outcomes.
9. Requests for a waiver of physical standards required by MANMED § 15-105 are
forwarded from the Service member's commanding officer, via the immediate superior in
command, then the Navy Bureau of Medicine ("BUMED"), and ultimately to the cognizant
Bureau ofNaval Personnel ("BUPERS") office. Id. § 15-105(5). Trident Order #12 advised
Service members that this waiver request was a separate requirement, in addition to any medical
or administrative exemption request. Trident Order #12 ¶ 6.d.
10. Since the issuance of Trident Order #12, I know of six permanent medical
exemption requests for personnel falling under NSWC authority that have been denied. Since
126a
BUMED Notice 6300, Navy Coronavirus Disease 2019 Vaccine Medical, Temporary, and
Medical Permanent Exemption for Medical Contraindication Approval Process (Sep. 3, 2021),
provides that these may be denied by medical providers at lower levels,3 I have not seen all of
the denials although I have been consulted on many. However, because all exemption requests
forwarded to BUMED must be routed through me (as the Force Medical Officer) to the Deputy
Surgeon General for approval, I know that three permanent medical exemption requests were
routed through NSWC. I denied one of these myself and the other two were denied by the
Deputy Surgeon General. In addition, I am aware that at least three plaintiffs (Navy SEAL 3,
Navy SEAL 22 and Navy SEAL 26) asked for a permanent medical exemption at a lower level,
and both of these were denied due to lack of medical basis for a contraindication to vaccination.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct. Executed this 9th day of December, 2021.
YF.LITTLEJ FIN
Captain, Medical Corps, U.S. Navy
3Navy medical providers function as the disapproval authority for temporary or permanent medical exemption
requests that do not meet clinical contraindications for the COVID -19 vaccine. BUMED Notice 6300 ¶ 6.c. A Navy
medical provider is defined as any uniformed, Navy-employed civilian, or contract licensed independent medical
practitioner whose scope of practice encompasses immunization healthcare delivery, and Independent Duty
Corpsmen. Id. ¶ 7.b.
6
127a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
Plaintiffs,
Case No. 4:21-CV-01236-O
v.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
Defendants.
DECLARATION OF CHRISTOPHER D. BROWN
I, Christopher D. Brown, hereby state and declare as follows:
1. I am a Captain in the United States Navy, currently serving as the Chief of Staff
of U.S. Naval Special Warfare Command (NSWC), located in Coronado, California, whose
mission is to provide maritime special operations forces (SOF) to conduct full spectrum
operations, unilaterally or with partners, to support national objectives. I make this declaration in
my official capacity, based upon my personal knowledge and upon information that has been
provided to me in the course of my official duties.
2. I have been assigned to my current position since September 24, 2021. Prior to
my current assignment, I served as the Commander of Naval Special Warfare Group ONE;
1
128a
Director of Operations at Special Operations Command-Central; Commanding Officer of SEAL
Team ONE; Commander of Special Operations Task Force-Iraq; and Deputy Commander of
Joint Special Operations Task Force-Philippines. As part of my duties currently, I am responsible
for supervising and coordinating the work of the staff of U.S. Naval Special Warfare Command.
3. Naval Special Warfare (NSW) SOF are composed of Navy SEALs 1 and Special
Warfare Combatant-Craft Crewmen (SWCC). The NSW team is a multipurpose combat force
organized and trained to conduct a variety of special operations missions in all environments.
a. Navy SEALs conduct clandestine missions infiltrating their objective areas by
fixed- and rotary-wing aircraft, Navy surface ships, combatant craft, submarines and
ground mobility vehicles. Service members designated as Navy SEALs consists of
officers and enlisted members who have been designated pursuant to Navy and NSW
policies.
b. SWCC focus on infiltration and exfiltration of SEALs and other SOF, and they
provide dedicated rapid mobility in maritime environments, as well as the ability to
deliver combat craft via parachute drop. SWCC operate and maintain state-of-the-art
surface craft to conduct special operations.
c. In addition to SEALs and SWCC, combat support (CS) and combat service
support (CSS) personnel are assigned to NSW units to support the mission. CS personnel
include officers and enlisted Service members who routinely infiltrate to a target area
with the SEAL or SWCC combat force, such as those identified in Plaintiffs’ complaint
(i.e., Explosive Ordinance Disposal (EOD) personnel), as well as CSS officers and
enlisted Service members performing a variety of other military functions (e.g.,
1
The term “SEAL” refers to “Sea, Air, Land.”
2
129a
chaplains, medical personnel, mobile communications teams, tactical cryptologic support,
etc.).
d. Navy EOD perform missions neutralizing explosive weapons in almost every
environment. Their duties include detonating or demolishing hazardous munitions,
neutralizing various ordnance, including sea mines, torpedoes or depth charges,
performing parachute or helicopter insertion operations, and clearing mines in support of
our military operations.
e. Navy Divers perform a variety of military functions, including wreckage
salvage operations and underwater repairs, harbor and waterway clearance operations,
assisting in construction and demolition projects, executing search and rescue missions,
performing deep submergence operations, and serving as mission critical experts for
diving operations for numerous military special operations units.
4. NSW personnel routinely deploy around the globe and may be assigned to units
throughout the United States or in foreign countries; however, NSW personnel are assigned
predominantly to commands located in three cities: Coronado, CA, Virginia Beach, VA, and
Pearl Harbor, HI. 2 There are no NSW commands located in Fort Worth, TX.
Trident Order #12
5. Service members in the NSW community are subject to Department of Defense
and Department of the Navy policies. Following the Secretary of Defense directive of August 24,
2021, and the issuances of ALNAV 062/21 and NAVADMIN 190/21, Trident Order 3 #12 was
2
See Naval Special Warfare Command, Components, https://www.nsw.navy.mil/CONTACT/Components/ (last
accessed Dec. 1, 2021).
3
NSWC promulgates community-wide policies and communications to subordinate units through “Trident Orders,”
similar to Department of the Navy administrative messages (“ALNAVs”) or Service-wide administrative messages
(“NAVADMINs”).
3
130a
issued on September 24, 2021. Trident Order #12 was issued to provide NSW personnel a
consolidated reference to several policies relevant to the mandatory vaccination requirement, and
to implement specific timelines for personnel to comply with the requirement. Specifically, NSW
personnel were directed to report for vaccination or to receive an administrative counseling to
comply with NAVADMIN 190/21 by October 7, 2021. Personnel were also directed to receive
their first shot (if planning to become fully vaccinated using a two-dose series) or initiate a
request for either a medical or administrative exemption by October 17, 2021. These dates were
established to ensure the vaccine requirement was efficiently executed, while also affording
NSW members both time and guidance to submit exemption requests, if applicable.
6. Trident Order #12 also stated that Service members with pending medical or
administrative exemption requests would not receive the administrative counseling unless the
request was denied. Exemption requests for either medical or administrative (including religious)
reasons are adjudicated in accordance with the applicable Navy policy. Trident Order #12
directed Service members to contact their medical provider for questions about medical
exemptions, or to contact the cognizant chaplain’s office for assistance with their religious
accommodation request.
7. Trident Order #12 also reminded SOF of a pre-existing policy outlined in the
Navy’s Manual of the Medical Department (“MANMED”), Chapter 15, Physical Examinations
and Standards for Enlistment, Commission, and Special Duty. MANMED § 15-105 relates to the
medical disqualification of special operations personnel (also known as SOF) refusing to receive
recommended vaccines based solely on their personal or religious beliefs. MANMED § 15-
105(4)(n)(9). Additionally, SOF were advised that a waiver from medical requirements under
MANMED § 15-105 for special operations personnel requires a separate waiver, in addition to
4
131a
any medical or administrative exemption request from the COVID-19 vaccine requirement. This
advisory was included in Trident Order #12 to ensure that all special operations personnel
understood the unique medical requirements applicable to them, because these unique
requirements for SOF were not addressed in ALNAV 062/21 or NAVADMIN 190/21.
8. Since the issuance of Trident Order #12, no adverse administrative or disciplinary
actions have been taken against NSW personnel based on that order.
Religious Accommodation Requests
9. Navy Service members requesting a religious accommodation from vaccine
requirements must comply with BUPERSINST 1730.1A and MILPERSMAN 1730-020. With
the exception of the MANMED waiver referenced above, there are no additional requirements or
procedures imposed on members within the NSW force. Requests for religious accommodation
are initiated by the member and forwarded via the first commanding officer (if an O-6) 4 or
immediate superior in command (ISIC) to Deputy Chief of Naval Operations (Manpower,
Personnel, Training and Education) (“DCNO N1”). 5 Trident Order #12 reiterates the Navy
policy commands with commanders in the grade of O-6 route exemption requests directly to
DCNO N1, and only has direct subordinate commanders (i.e., Echelon III commands) copy
NSWC Force Medical on exemption endorsements for awareness of requests from the force.
Administrative Actions
10. I am aware of the adverse actions Plaintiffs claim they may face if they choose
not to comply with the Navy’s COVID-19 vaccine directive. Pls.’ Compl. ¶ 110. The potential
adverse actions Plaintiffs recite are almost entirely outside the authority or discretion of NSWC.
4
In the Navy, an officer in the grade of O-6 is a captain.
5
DCNO N1 is identified by the alternate designation of CNP (Chief of Naval Personnel) in MILPERSMAN 1730-
020). DCNO N1 and CNP interchangeable acronyms and refer to the same position and official. The current DCNO
N1 is Vice Admiral John Nowell, Jr.
5
132a
Specifically, authority to refer criminal charges to a court-martial or for disposition at non-
judicial punishment is withheld to the Vice Chief of Naval Operations. See NAVADMIN 225/21
¶ 5.b. Furthermore, the policy outlined in NAVADMIN 225/21 – that members who do not
comply with the vaccine requirement are required to be processed for administrative separation –
is not a policy requirement imposed on NSW personnel by NSWC. This is a Navy-wide policy,
and each Service member’s case ultimately falls under the cognizance of the Chief of Naval
Personnel as the show cause authority (for officers) and separation authority (for enlisted). See
id. ¶ 5.d. Similarly, NAVADMIN 225/21 and NAVADMIN 226/21 outline other administrative
actions, such as relief for cause for command leaders and promotion or advancement delays, that
are mandatory administrative actions for those refusing the vaccine.
11. Navy Service members with specialized training or assignments may qualify for
Special Duty Assignment Pay (SDAP) as outlined in Chief of Naval Operations Instruction
(“OPNAVINST”) 1160.6C and the implementing NAVADMIN. 6 Within the NSW force,
members occupying specific billets 7 may be entitled to SDAP. In the event the Service member
is removed from the billet, the member may no longer qualify for SDAP. See NAVADMIN
256/21. Similarly, certain Navy Enlisted Classifications 8 (NECs) across the Navy can qualify for
enlistment bonuses and other financial incentives, which generally require additional obligated
service. In the event a Service member fails to fulfill his or her required obligated service, the
Service member may be subject to recoupment of the bonus or special pay that he or she
6
The NAVADMIN announcing SDAP recertification is revised annually. The current NAVADMIN 146/21 was
released on July 2, 2021, and can be found at
https://www.mynavyhr.navy.mil/Portals/55/Messages/NAVADMIN/NAV2021/NAV21146.txt.
7
A billet is a military term for the title of job or position.
8
The Navy Enlisted Classification (NEC) system supplements the enlisted personnel structure in identifying
personnel on active or inactive duty and billets in manpower authorizations. NEC codes identify a non-rating
(occupation) wide skill, knowledge, aptitude, or qualification that must be documented to identify both people and
billets for management purposes
6
133a
received. These are not NSWC policies, but Service policies that are generally applicable to
members of the Navy. See NAVADMIN 256/21 ¶ 8.a. (directing that bonuses, special pays and
incentive pays become unearned as soon as the member is removed from the assignment or his or
her associated NEC is removed). I am aware Plaintiffs claim that they may be subject to
recoupment for costs of training as a Navy SEAL, SWCC, EOD technician, or Diver, which can
be substantial. In my 27 years of experience, serving across various NSW commands and leading
personnel, I am not familiar with any policy that would subject personnel to recoupment for costs
associated with training, even where the service member is separated prior to fulfilling his
obligated service under adverse circumstances. I am familiar with instances where the Service
has required recoupment for higher education at universities or colleges where the member has
not completed obligated service requirements, but that is different that Department of Defense
military training.
12. Additionally, I am aware that Plaintiffs have alleged that they may be subject to
the administrative removal of their NEC. Pls.’ Mem. in Support of Mot. for Prelim. Inj. at 28–29,
ECF No. 16. Removal of a member’s NEC may also impact the member’s eligibility for SDAP
and their eligibility to wear the SEAL or SWCC insignia (i.e., the Trident pin for Navy SEALs).
Authority to wear the SEAL or SWCC insignia is governed by MILPERSMAN articles 1220-
085 and 1220-090, respectively. Achievement of the SEAL or SWCC qualification entitles the
member to wear the applicable insignia. If a member’s NEC is removed for disciplinary or
administrative action, however, the member is no longer authorized to wear the insignia. For
NSW personnel, the process for the administrative removal of a Service member’s NEC is
outlined in Commander, Naval Special Warfare Command Instruction
(“COMNAVSPECWARCOMINST”) 1221.1A, Enlisted Special Warfare Operator/Special
7
134a
Warfare Boat Operator Navy Enlisted Classification Review Guidance. 9 A commander may
initiate revocation of the Service Member’s NEC for the following reasons:
(a) Non-performance of duties. Failure or unwillingness to perform duties
required of the rating.
(b) Failure to maintain rating eligibility such as:
(1) Permanent revocation of a member's security clearance.
(2) Permanent physical disability.
(c) Professional performance failure such as:
(1) Willful dereliction of duty.
(2) Breaches of Ammunition, Arms, and Explosive, diving, parachute, or
ordinance safety regulations, or Operations Security violations.
(3) Loss of CO's faith and confidence in the member's ability to exercise
sound judgment, reliability, and personal conduct.
(d) SEAL or SWCC Qualification. Failure to attain SO (SEAL) or SB (SWCC)
qualification as specified in references (e) and (f).
(e) Alcohol Abuse.
(f) Drug Abuse.
Id. ¶ 3.a.
13. However, the administrative removal of a Service member’s NEC is not to be
used as a punitive measure or as an alternative to disciplinary or administrative action. Id. ¶ 3.b.
Moreover, COMNAVSPECWARCOMINST 1221.1A provides that “[i]f a Sailor is unsuitable
for continued naval service, appropriate administrative separation procedures shall be followed.”
Because NAVADMIN 225/21 directs mandatory separation processing for Service members
who refuse the vaccine and who do not have a pending or an authorized exemption, removal of
the member’s NEC under COMNAVSPECWARCOMINST 1221.1A is neither warranted nor
necessary. Therefore, it is not anticipated, nor desired, that this procedure would be used in
addition to the various required administrative actions for Service members refusing the vaccine.
Deployability and Training
9
The board procedures outlined are commonly referred to as a “Trident Review Board.”
8
135a
14. Service members in the NSW community are responsible for performing special
operations. Special operations require unique tactics, techniques, procedures, and equipment.
They are often conducted in hostile or diplomatically sensitive environments, and are
characterized by one or more of the following: time-sensitivity, clandestine or covert nature, low
visibility, working with or through host-nation forces, greater requirements for regional
orientation and cultural expertise, and a higher degree of risk. These missions often require
members of the NSW community to work in close quarters where social distancing is not
possible. For example, a team may travel on boats, submersibles, helicopters, aircraft, or other
vehicles that are not even six feet across, and/or which have limited ventilation. Service members
may be in such close quarters that they are literally sitting shoulder-to-shoulder or chest-to-back.
Additionally, NSW personnel may be required to operate in subsea environments and may even
have to share closed-circuit diving rebreathers, where COVID-19 could imperil one another
because members are forced to share breathing devices, and literally inhale one another’s
exhalation. Moreover, the types of missions outlined above cannot be conducted remotely. For
example, a SEAL assigned to perform a counterterrorism mission in a foreign country cannot
perform that task from home; nor could a SWCC drive a combatant craft and transport SEALs in
a telework status; just like an explosive ordnance disposal technician—whose job it is to disarm
and dispose of explosives—cannot perform that task remotely. Similarly, the arduous training
necessary to prepare NSW personnel for these missions cannot be performed remotely. Training
and operations necessitate our Service members interact in close-quarters, confined spaces, and
under extreme conditions where telework, social distancing, and mask-wearing are not realistic
options; specifically, mask wearing is not mission appropriate for select missions.
9
136a
15. SOF often operate in countries with little or no healthcare support structure and in
remote areas exposed to health threats. Proactive force health protection measures are often
essential to minimize health risks to special operations personnel. When deployed, health support
available to special operations forces is limited to a small number of medical personnel with
enhanced medical skills, to include emergency treatment, preventive medicine, and limited
dental care. SOF medical personnel can plan and conduct specialized medical support and patient
movement; however, special operations forces may require support from conventional forces in
the event a medical situation is beyond the limited capacity of the deployed medical personnel.
Hospitalization capabilities are generally not available and special operations forces must rely on
either available theater health services assets or local host nation capabilities if hospitalization
becomes an urgent necessity. In many instances, the capabilities of the local or host nation are far
lesser than those available in the United States, therefore the risk of serious illness may be
greater. If a team member contracts COVID-19, there is a possibility that the necessary
equipment (e.g., oxygen, ventilators) or treatments would not be readily available. Additionally,
quarantine or self-isolation are generally not going to be an option, and impact to the mission
would be unavoidable. Further, if it became necessary to medically evacuate (“medevac”) a
member of the unit, this creates additional risk both to the mission (i.e., it encumbers the entire
force and medevac structure), and places those Service members executing the medivac at a
significant risk of harm or death themselves (i.e., if the member requires transport in a remote or
diplomatically sensitive area, or under hostile fire). Every member of a NSW formation is vital,
therefore, in the event any one of them were to contract COVID-19, it would necessarily have an
adverse impact to the mission and to his fellow team members.
10
137a
16. Risk of harm or death are inherent to the training and missions performed by
NSW personnel. Given the missions performed by SOF, it is vital that a member of the NSW
community be medically fit to train or deploy on short notice. Medical conditions can create
additional risk, both medical and operational, not only for the Service member afflicted, but for
other members of the unit. Consequently, unvaccinated NSW personnel are subject to limitations
on their deployment eligibility or training eligibility by virtue of necessity. Additionally, a
member’s vaccination status may preclude travel or attendance for training courses depending on
current theater and Service travel policies and any requirements specific to the training course
itself. For example, if a mission is to take place in a partner nation, those nations may have their
own vaccination requirements that preclude participation by unvaccinated individuals.
Commands are also obligated to assess the cost, both financially and administratively, associated
with restriction of movement that the member may incur by virtue of being unvaccinated.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct. Executed this 9th day of December, 2021.
/s/
CHRISTOPHER D. BROWN
Captain, U.S. Navy
11
138a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
Plaintiffs,
Case No. 4:21-CV-01236-O
v.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
Defendants.
DECLARATION OF CAPTAIN MERY-ANGELA SANABRIA KATSON, U.S. NAVY
I, Captain Mery-Angela Sanabria Katson, U.S. Navy, hereby state and declare as follows:
1. I am a captain in the United States Navy, currently serving as the Acting Deputy
Director, Military Personnel Plans and Policy Division (OPNAV N13B), located in Arlington,
Virginia. I make this declaration in my official capacity, based upon my personal knowledge
and upon information that has been provided to me in the course of my official duties.
2. I have been assigned to this position since September 2021. My permanent
assignment is as Branch Head, Enlisted Plans and Policy (OPNAV N132). Prior to my current
assignment, I served as Deputy Director and Comptroller, Field Support Activity (BSO-11) at
the Washington Navy Yard.
1
139a
(a) I have been a member of the U.S. Navy since 1982, beginning my career as a Deck
Seaman onboard USS Point Loma (AGDS-2) in San Diego, CA, before becoming an enlisted
Disbursing Clerk. I was commissioned in 1991 after earning a bachelor’s degree from the
University of San Diego through the Navy’s former Broadened Opportunity for Officer Selection
and Training (BOOST). Since then, I have served as the Communications Officer aboard USS
Acadia (AD-42); Company Officer and adjunct professor at the U.S. Naval Academy;
Administrative and Manpower Officer for U.S. Naval Support Activity, Naples, Italy;. Flag
Secretary for Commander, Fleet Air Mediterranean and Commander, Navy Region Europe;
Commander, San Antonio Military Entrance Processing Station, San Antonio, TX; Executive
Officer and Commanding Officer, Navy Recruiting District, San Antonio; Diversity and Inclusion
Officer for the Office of the Chief of Naval Operations (OPNAV); and Education Strategy and
Policy Branch Head for OPNAV.
(b) My professional military education includes a Master’s Degree in Manpower Systems
Analysis from the Naval Postgraduate School in Monterey, CA, and a Master’s Degree in National
Security and Strategic Studies from the U.S. Naval War College in Newport, RI.
(c) As part of my duties currently, I am responsible for overseeing the processing of
religious accommodation requests from Navy service members throughout the Fleet.
3. Number of religious accommodation requests seeking exemption from COVID-19
vaccination. As of December 9, 2021, Navy personnel have submitted 3,259 religious
accommodation requests seeking to be administratively exempted from the COVID-19
vaccination. There are 300 appeals of denials of religious accommodation requests pending. No
appeals have been fully adjudicated as of December 9, 2021. Members with pending exemption
requests or appeals are not subject to adverse administrative action while requests are pending.
2
140a
4. All but two of the Plaintiffs submitted requests for religious accommodations.
Exhibit A to this declaration and the following describes the status of each Plaintiff, according to
Navy records as of December 9, 2021:
(a) Navy SEAL 22 and SWCC 3 have not submitted requests for religious
accommodations.
(b) Navy SEALs 1, 10, 11, 18, 21, 25, and SWCC 2 submitted requests for religious
accommodations. Decisions are pending for those requests.
(c) Navy SEALs 2 through 9, 12 through 15, 17, 19, 20, 23, 26, Navy Divers 1 through
3, and SWCCs 1, 4, and 5 submitted requests for religious accommodations which were denied.
Appeals of the denials have not been received as of December 9, 2021.
(d) Navy SEALs 16, 24, and EOD 1 submitted requests for religious accommodations
which were denied. These Plaintiffs appealed the denials of their requests. As of December 9,
2021, those appeals are pending adjudication.
5. Number of religious accommodation requests from any vaccination adjudicated
since 2015. For context on the unprecedented increase in the number of religious
accommodation requests, the United States Navy received and adjudicated 83 religious
accommodation requests for exemption from any required vaccination except COVID-19
between the beginning of 2015 and the summer of 2021. One of those requests was granted.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct. Executed this 9th day of December, 2021.
Mery-Angela Sanabria Katson
Captain, U.S. Navy
3
141a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
Plaintiffs,
Case No. 4:21-CV-01236-O
v.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
Defendants.
DECLARATION OF WILLIAM MERZ
I, William Merz, hereby state and declare as follows:
1. I am a Vice Admiral in the United States Navy, currently serving as the Deputy
Chief of Naval Operations, Operations, Plans and Strategy (OPNAV N3/N5), located in
Arlington, Virginia at the Pentagon. I make this declaration in my official capacity, based upon
my personal knowledge and upon information that has been provided to me in the course of my
official duties.
2. I have been assigned to my current position since August 6, 2021. Prior to my
current assignment, I served as Commander, U.S. SEVENTH Fleet; the Deputy Chief of Naval
Operations for Warfighting Requirements; the Director, Undersea Warfare Division; and
1
142a
Commander, Naval Mine & Anti-Submarine Warfare Command. I graduated from the U.S.
Naval Academy in 1986, and earned master’s degrees from Catholic University and the Naval
War College. As part of my duties currently, I am responsible for serving as the principal
advisor to the Chief of Naval Operations1 (CNO) on operational matters, strategy, policy, and
plans; international politico-military matters; and the current operational status of naval forces.
As part of my responsibility for the current operational status of naval forces, CNO delegated
responsibility to me for the Navy’s COVID-19 policies. Those responsibilities include tracking
the number of COVID-19 cases across the Navy, implementing Secretary of the Navy COVID-
19 plans and policies, planning for and ensuring the appropriate initial distribution of COVID-19
vaccines, coordination across the Navy and with the other services on COVID-19 plans and
policy, and providing input to the Secretary of the Navy on proposed COVID-19 plans and
policy.
3. On August 24, 2021, the Secretary of Defense directed the Secretaries of the
Military Departments to immediately begin full vaccination of all members of the Armed Forces
under DoD authority on active duty or in the Ready Reserve. The Secretary of the Navy directed
implementation of Secretary of Defense’s COVID-19 vaccination mandate2 via a Department-
wide administrative message (ALNAV) on August 30, 2021. The ALNAV applies to both
Services within the Department of the Navy (DON), the United States Navy and the United
States Marine Corps. The ALNAV requires all active duty DON Service members, who are not
already vaccinated, exempted, or currently seeking an exemption, to be fully vaccinated with an
1
The CNO is the senior uniformed officer in the United States Navy. See 10 U.S.C. § 8033(b) (“The Chief of Naval
Operations, while so serving, has the grade of admiral without vacating his permanent grade. In the performance of
his duties within the Department of the Navy, the Chief of Naval Operations takes precedence above all other
officers of the naval service.”).
2
Secretary of Defense Memorandum, “Memorandum for Senior Pentagon Leadership, Commanders of the
Combatant Commands, Defense Agency, and DoD Field Activity Directors,” (August 24, 2021).
2
143a
FDA-approved COVID-19 vaccine within 90 days, and all Reserve Component personnel to be
fully vaccinated within 120 days. ALNAV 062/21 ¶ 4. Active duty Sailors and Marines were
required to become fully vaccinated by November 28, 2021, and Reserve Component Sailors and
Marines must become fully vaccinated3 by December 28, 2021. The requirement to obtain full
vaccination constitutes a lawful order under Article 92 of the Uniform Code of Military Justice
(UCMJ), and failure to comply may result in punitive or adverse administrative action, or both.
ALNAV 062/21 ¶ 5.
4. The United States Navy issued service-specific guidance via a separate
administrative message (“NAVADMIN”) on September 1, 2021. NAVADMIN 190/21 outlines
Navy policy concerning the mandatory vaccination of Navy service members, vaccination
administration and reporting requirements, and general guidance related to logistics and
distribution of vaccines. The policy reiterates that COVID-19 vaccination “is mandatory for all
DoD service members who are not medically or administratively exempt” under existing Navy
policy. NAVADMIN 190/21 ¶ 2, 3.a. Refusal to become fully vaccinated against COVID-19
without an approved or pending exemption constitutes a failure to obey a lawful order and is
punishable under Article 92, UCMJ. Ordinarily, any officer with authority to convene courts-
martial or administer nonjudicial punishment under Article 15 of the UCMJ may dispose of
alleged violations of the UCMJ. Manual for Courts-Martial (“MCM”), Part II, Rules for Court
Martial, 401. However, authority to initiate courts-martial, non-judicial punishment, or
administrative separation processing for failure to become fully vaccinated is withheld to a
designated COVID Consolidated Disposition Authority (CCDA). NAVADMIN 190/21 ¶ 3.c.,
3.e.(5). Withholding this authority from Service members’ commanders precludes
3
Although refusal to receive the vaccine may subject a member to adverse administrative or disciplinary action, the
vaccine will not be forcibly administered to any member who refuses.
3
144a
administrative separation or disciplinary action without elevated review and direction by the
CCDA. On October 13, 2021, the Chief of Naval Personnel (CNP) was designated as the
CCDA. NAVADMIN 225/21 ¶ 1.
5. NAVADMIN 190/21 ¶ 3.d. provides that service members may seek two types of
exemptions, medical and administrative. Medical exemptions are governed by Army Regulation
(AR) 40-562, which is a consolidated Military Services regulation implemented by the Navy and
Marine Corps via Bureau of Medicine (BUMED) Instruction 6230.15B (hereinafter
BUMEDINST 6230.15B). Medical personnel are responsible for reviewing and granting
medical exemptions, whereas non-medical personnel (sometimes with the assistance of advising
medical personnel) are responsible for reviewing and granting administrative exemptions.
BUMEDINST 6230.15B, 2-6.
6. The policy provides the following with respect to medical exemptions:
a. Medical exemptions. A medical exemption includes any medical contraindication
relevant to a specific vaccine or other medication. Health care providers will determine a
medical exemption based on the health of the vaccine candidate and the nature of the
immunization under consideration. Medical exemptions may be temporary (up to 365
days) or permanent. Standard exemption codes appear in appendix C.
(1) General examples of medical exemptions include the following—
(a) Underlying health condition of the vaccine candidate (for example,
based on immune competence, pharmacologic or radiation therapy,
pregnancy and/or previous adverse response to immunization).
(b) Evidence of immunity based on serologic tests, documented infection,
or similar circumstances.
(c) An individual’s clinical case is not readily definable. In such cases,
consult appropriate medical specialists, including specialists in
immunization health care.
AR 40-562, 2-6a.(1), (emphasis added).
4
145a
As the policy reflects, these are just examples of situations when health care providers may
determine a medical exemption is warranted, but each exemption request is an individual
determination based on the health of the individual and the disease at issue. Additionally,
although there are some diseases for which serologic or other tests may be used to identify pre-
existing immunity, there are some diseases for which these tests may not be used in such
manner.4
7. Service members who seek a medical exemption first submit their request to Navy
medical providers who follow BUMED policy when processing those requests. A Navy medical
provider is defined as any uniformed, Navy-employed civilian, or contract-licensed independent
medical practitioner whose scope of practice encompasses immunization healthcare delivery, and
Independent Duty Corpsmen. BUMEDNOTE 6300, ¶ 7.b. Navy medical providers have the
authority to grant temporary medical exemptions for pregnancy or other temporary medical
contraindications. BUMED Notice 6150 (Sept. 21, 2021). For requests for permanent
exemptions, Navy medical providers have authority to disapprove temporary or permanent
medical exemption requests that do not meet clinical contraindications for the COVID-19
vaccine. BUMEDNOTE 6300, ¶ 6.c. Service members who are actively participating in
COVID-19 clinical trials are exempt from mandatory vaccination until the trial is complete.
NAVADMIN 190/21 ¶ 3.d.(2).
8. For either a temporary or permanent medical exemption request, medical
providers evaluate the patient for medical contraindications based on documented medical
history and/or clinical evaluation, and an assessment of the benefits and risks to the patient.
4
The AR states, “Screening for immunity. For some vaccine-preventable diseases, serologic or other tests can be
used to identify pre-existing immunity from prior infections or immunizations that may eliminate unnecessary
immunizations.” AR 40-562, 2-1.g (emphasis added).
5
146a
BUMEDNOTE 6300 of September 3, 2021, Clinical Consultation Guidance for COVID 19
Vaccine Permanent Exemption (published September 3, 2021). Additionally, medical providers
are encouraged to request expert consultation by an immunizations specialist, when necessary.
Medical contraindications for the COVID-19 vaccine include:
(a) Anaphylaxis from a previous COVID-19 vaccine or COVID-19 vaccine
ingredient;
(b) Myocarditis or pericarditis after COVID-19 vaccine administration or
infection;
(c) Temporary association of Stevens-Johnson Syndrome or Guillain-Barré
Syndrome that cannot be attributed to another underlying cause within 6 weeks of
COVID-19 vaccine administration or infection;
(d) Thrombosis with Thrombocytopenia Syndrome (TTS) after COVID-19
vaccine administration;
(e) Persistent clinical symptoms lasting 4 or more weeks following a COVID-19
infection that cannot be attributed to another underlying cause after evaluation and
focused workup (“Long COVID”). Id.
In the Clinical Consultation Guidance, providers are also encouraged to consult CDC guidance.5
5
An example of CDC clinical considerations includes:
If you were treated for COVID-19 with monoclonal antibodies or convalescent plasma, you should wait 90
days before getting a COVID-19 vaccine. Talk to your doctor if you are unsure what treatments you
received or if you have more questions about getting a COVID-19 vaccine.
If you or your child has a history of multisystem inflammatory syndrome in adults or children (MIS-
A or MIS-C), consider delaying vaccination until you or your child have recovered from being sick and
for 90 days after the date of diagnosis of MIS-A or MIS-C. Learn more about the clinical
considerations for people with a history of multisystem MIS-C or MIS-A.
6
147a
9. Medical rationale for disapproval based on serology: Serological test results that
shows the presence of antibodies from a prior COVID-19 infection, standing alone, will not be a
basis for a permanent medical exemption. Serologic testing, as a means to determine immunity,
has not been scientifically validated, and evidence suggests that prior infection does not prevent
later infection. 6 Although AR 40-562 indicates that serology screening tests for immunity may
be warranted, it applies to diseases or conditions where it has been established that serologic tests
are able to determine one’s immunological status.7 AR 40-562 contemplates that serologic or
other tests might be appropriate to determine immunity for some diseases, but not all vaccine-
preventable diseases. AR 40-562 ¶ 2-1.g. In contrast to a disease such as varicella (“chicken
pox”), where prior infection usually provides “immunity for life” and a second occurrence is
uncommon, prior COVID-19 infection does not provide similar immunity. See CDC, “Chicken
Pox for Healthcare Professionals, available at https://www.cdc.gov/chickenpox/hcp/index.html;
Alyson M. Cavanaugh, et al., Reduced Risk of Reinfection with SARS-CoV-2 After COVID-19
Vaccination, Morbidity and Mortality Weekly Report, Vol. 70, No. 32 (Aug. 13, 2021).
10. In addition to the procedures in BUMEDINST 6230.15B, authority to approve a
permanent medical exemption for COVID-19 vaccination is the first Navy Medical Department
See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html
6
One study found the following: “[A]mong Kentucky residents who were previously infected with SARS-CoV-2 in
2020, those who were unvaccinated against COVID-19 had significantly higher likelihood of reinfection during May
and June 2021. This finding supports the CDC recommendation that all eligible persons be offered COVID-19
vaccination, regardless of previous SARS-CoV-2 infection status.” Further, the authors noted limited available
evidence to determine the extent and duration of immunity from natural infection, and cited the emergence of new
variants might affect infection-acquired immunity. Alyson M. Cavanaugh, et al., Reduced Risk of Reinfection with
SARS-CoV-2 After COVID-19 Vaccination, Morbidity and Mortality Weekly Report, Vol. 70, No. 32 (Aug. 13,
2021), available at https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7032e1-H.pdf.
7
“g. Screening for immunity. For some vaccine-preventable diseases, serologic or other tests can be used to identify
pre-existing immunity from prior infections or immunizations that may eliminate unnecessary immunizations.” AR
40-562, 2-1.g (emphasis added).
7
2
148a
Flag Officer8 in the medical provider’s chain of command. NAVADMIN 190/21 ¶ 3.d.
BUMEDNOTE 6300 outlines the process for Navy medical providers recommending approval
for a permanent medical exemption for COVID 19 vaccination. Where a provider recommends
such an exemption, the provider drafts an initial permanent exemption letter and routes the letter
to the appropriate flag officer as well as the member’s commanding officer. BUMED Notice
6300, ¶ 6.c. A temporary medical exemption is granted pending the approval or disapproval
decision of a permanent medical exemption.9 BUMED Notice 6300, ¶ 7.b. If the permanent
medical exemption is approved, a formal letter of approval is forwarded to the initial
recommending Navy provider. BUMED Notice 6300, ¶ 7.j. Vaccinations and vaccine
exemptions are entered into the member’s Electronic Health Record (EHR), or the Medical
Readiness Reporting System (MRRS) where entry in the EHR is impracticable. BUMED Note
6150, ¶ 5.b. During the pendency of a temporary exemption or once a permanent exemption is
approved, a member will not be subject to disciplinary action.
11. The Navy Reserves is comprised of several categories of Reservist, including: (1)
Ready Reserve; (2) Standby Reserve, consisting of the Standby Reserve-Active (USNR-S1) and
Standby Reserve-Inactive (USNR-S2); or (3) Retired Reserve (USNR-Retired). See Bureau of
Personnel Instruction (hereinafter BUPERSINST) 1001.39F, Ch. 1, ¶ 101. A Reservist’s
administrative requirements, entitlements, pay, or benefits eligibility is dependent on the status
of the Reservist. See generally id., Figure 1-2. Navy Reservists are required to meet physical
qualifications for retention in the Reserve, and all members of the Navy and Marine Corps
Reserve annually complete a periodic health assessment. Id., Ch. 2 ¶ 201; U.S. Navy Manual of
8
“Flag Officers” comprise the highest ranks in the military. Officer ranks range from O-1 to O-10, with flag officers
occupying the ranks between O-7 to O-10. In the Navy, a flag officer is any officer serving in the rank of Rear
Admiral (Lower Half) or higher.
9
No disciplinary or administrative action will be initiated while a permanent medical exemption request is pending.
8
149a
the Medical Department, Ch. 15, Art. 15-23(2) (hereinafter “MANMED”). Drilling Reservists
have additional requirements with respect to notifying the chain of command of any physical or
dental problem that may delay or preclude their performance of drills, Annual Training (AT), or
mobilization eligibility, including their vaccination status. BUPERSINST 1001.39F, Ch. 2, ¶
201. Unlike active duty Service members, Reservists are not automatically covered under
TRICARE, the military’s health care program, unless called to active duty for greater than 30
days. Reservists do have the option to obtain health insurance through TRICARE Reserve
Select, a low-cost premium-based version of TRICARE. See TRICARE Reserve Select,
https://tricare.mil/TRS, (last visited Dec. 7, 2021).
12. For the annual physical evaluation, the Reservist’s unit Medical Department
Representative (MDR) reviews the Service member’s periodic health assessment to evaluate all
new or materially changed medical conditions. MANMED 15-23(3). The MDR is encouraged
to obtain additional information from reservists via outpatient medical records or other sources
as appropriate to develop as complete an understanding as possible of the condition(s). Id. If a
potentially disqualifying physical condition is discovered, such as the lack of a required
vaccination, the supporting commanding officer will place the member in a Medical Retention
Review (MRR) status. In this status, the medical officer or MDR will recommend that either the
member be allowed or denied the opportunity to remain in a drill status. BUPERSINST
1001.39F, Ch. 2 ¶ 203.2. The commanding officer has the option to retain the member in the
unit with or without drill authorization or reassignment of the member to a temporary unit in an
authorized absence status. Id., ¶ 203.2.a.
13. Like active duty Service members, Reservists are subject to immunization
requirements as outlined in BUMEDINST 6230.15B, but must be in a duty status to receive
9
150a
required immunizations. See BUMEDINST 6230.15B ¶ 3-2.a.-b. Reservists recalled to active
duty are subject to screening requirements for activation, which includes an assessment of the
member’s medical condition, including the need for requirement vaccinations. Id. Ch. 21 ¶ 2105;
Figure 21-1. Reservists may seek a medical exemption for a vaccination from a DoD medical
provider. In the event a non-DoD provider recommends a vaccine contraindication, the
Reservist must request assistance from a Navy medical provider in order to request a permanent
medical exemption. BUMED Notice 6300, ¶ 7.f.-g. If a Reservist is not exempted from the
vaccination requirement and is determined to be physically disqualified, that Reservist may be
subject to discharge or retirement. Id. Ch. 2 ¶ 203.2.f.
14. Administrative exemptions for an active duty or reserve service member may be
granted for various reasons, including pending separation or retirement, permanent change of
station, emergency leave, and religious accommodation. BUMEDINST ¶ 6230.15B, 2-6.b. Navy
policy concerning requests for the accommodation of religious practices generally, including
immunizations, is outlined in BUPERSINST 1730.11A (attached as Exhibit A to this
declaration), while specific guidance related to immunization exemptions for religious beliefs is
found in the Naval Military Personnel Manual (MILPERSMAN), Article 1730-020 (attached as
Exhibit B to this declaration).
a. An active duty or reserve service member10 seeking an exemption of
immunization for religious reasons must submit the request in in accordance with
BUPERSINST 1730.11A, ¶ 5.e. The requirements include: (1) a written request via his
or her commander stating the waiver sought; and (2) an interview with a Navy Chaplain,
10
“This instruction applies to all active and reserve members of the Navy, including applicants for entry into the
Navy and Navy Reserve, as well as midshipmen at the U.S. Naval Academy (USNA) and in the Naval Reserve
Officers Training Corps (NROTC), and officers and officer candidates in Navy officer accession program.”
BUPERSINST 1730.11A ¶ 3.a
10
151a
who assesses whether the requestor’s beliefs appear sincerely held for recommendation to
the commander. BUPERSINST 1730.11A, ¶ 5.e. Templates for the member’s request and
Chaplain’s assessment and recommendation are found in enclosures (1) through (3) of the
instruction. The Service member must also include a NAVPERS 1070/613,
“Administrative Remarks” form (commonly known as a “Page 13”), which documents
the member has been advised of potential health, travel, and administrative consequences
of their immunization waiver request. MILPERSMAN 1730-020 ¶ 4.c. The
consequences of an approved request are not adverse, but may limit the member’s
assignments and international travel due to international health regulations or host nation
laws or regulations. MILPERSMAN 1730-020, ¶ 4.c.
b. The approval authority for requests for immunization exemptions is the
Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education)
(hereinafter CNO N1).11 BUPERSINST 1730.11A, ¶ 5.a.(4). Commanders routing
requests to CNO N1 must forward the matter within 7 days from the date of the
member’s request in accordance with BUPERSINST 1730.11A, ¶ 5.c. The commander’s
endorsement must include information as required under MILPERSMAN 1730-020 ¶ 5,
including: (1) the negative effect (if any) of the requested accommodation on the unit’s
military readiness, health, or safety; (2) the number of service members in the command
that have been granted a similar exemption; and (3) when recommending denial, a
determination that the denial furthers a compelling government interest and there is no
less restrictive means of accommodating the request. MILPERSMAN 1730-020 ¶ 5. a.-b.
11
CNO N1 is identified by the alternate designation of CNP (Chief of Naval Personnel) in MILPERSMAN 1730-
020). CNO N1 and CNP interchangeable acronyms and refer to the same position and official.
11
152a
Commanders are required to ensure the applicant receives counseling related to the
potential health and travel impacts they may incur as a consequence of their waiver, and
the possibility that their waiver may be revoked in the event they are at imminent risk of
disease. MILPERSMAN 1730-020 ¶ 6.12 Action on a service member’s written request
for accommodation must be in a timely manner, generally no later than 60 days from
receipt by the Office of the Secretary concerned.13 DoD Instruction 1300.17, ¶ 3.2.c.,
Table 1. A member may appeal CNO N1 decisions to the Chief of Naval Operations
(CNO). BUPERSINST 1730.11A, ¶ 5.f. Template letters for approvals and approval
recommendations are found in enclosure (4) of the instruction.
c. Requests for religious accommodation are evaluated using criteria outlined in
paragraph 5 of the instruction. Specifically, each request is evaluated on a case-by-case
basis considering the following factors:
(1) applicable operational or regional policies,
(2) importance of the military policy, practice or duty in terms of mission
accomplishment, including military readiness, unit cohesion, good order,
discipline, health, or safety,
(3) importance of the practice to the requestor,
(4) cumulative impact of repeated accommodations of a similar nature and
(5) alternate means to fulfill the request.
12
The authority to revoke approved religious accommodation exemptions has been withheld from commanding
officers per NAVADMIN 225/21 ¶ 7.g. In other words, commanding officers are not authorized to revoke an
approved religious accommodation exemption from COVID-19 vaccination.
13
No disciplinary or administrative action will be initiated while a request for an exemption for religious
accommodations is pending.
12
153a
d. Commanders will not deny or recommend denial of a religious
accommodation unless the denial or partial denial furthers a compelling governmental interest
and is the least restrictive means of furthering that compelling government interest. Factors for
commanders to consider include (but are not limited to) whether approving the accommodation
would pose a health or safety hazard, or otherwise impair mission accomplishment, good order,
discipline, morale or unit cohesion. BUPERSINST 1730.11A ¶ 5.a.(2).
15. NAVADMIN 225/21 provides guidance for disposition of offenses involving
Navy service members who are not fully vaccinated as required by NAVADMIN 190/21. Navy
Service members who refuse the COVID-19 vaccine, absent a pending or approved exemption,
are required to be processed for administrative separation.14 NAVADMIN 225 ¶ 2. A Navy
Service member is considered to be “refusing the vaccine, if: (1) the individual has received a
lawful order to be fully vaccinated, (2) is not or will not be fully vaccinated by the date required,
and (3) does not have a pending or approved exemption request.” NAVADMIN 225/21 ¶ 3.c.
The policy designates CNP as the CCDA to ensure fair and consistent administrative processing
across the service. NAVADMIN 225/21 ¶ 5.b. For disciplinary matters, authority to initiate
disciplinary proceedings, either non-judicial punishment or court-martial, is withheld to the Vice
Chief of Naval Operations. Id. NAVADMIN 256/21 provides additional guidance on
administrative separation processing for those refusing the vaccine, as well as guidance on other
applicable administrative actions. These other applicable administrative actions include:
cancellation of government travel for training or other official purposes; potential reassignment
within the local area; adverse fitness reports and an evaluations; prohibition on executing
permanent change of station orders; potential termination of special duty and incentive pays;
14
Although processing for separation is required, this does not automatically result in a member actually being
separated. Members processed for separation may ultimately be retained in the service.
13
154a
potential recoupment of unearned bonuses; termination of and potential reimbursement for
Navy-funded education and training;15 promotion delays; and removal of additional qualification
designations or Navy Enlisted Classifications.16 See NAVADMIN 256/21 ¶¶ 4.b.through 13.
16. Prior to the initiation of administrative or disciplinary action, Navy service
members are formally advised of the order to be fully vaccinated using a NAVPERS 1070/613,
“Administrative Remarks” form (commonly known as a “Page 13”). NAVADMIN 225/21 ¶
7.e.(1). A Page 13 is not a punitive action, but is a manner to document formal counseling of a
Navy Service member. The inclusion of this Page 13, by itself, is not considered to be an
adverse matter and will not affect a member’s career. The Page 13 provides guidance to the
Navy service member and serves to document that the member has been advised of his or her
acknowledgement of the lawful order to be vaccinated against COVID-19. It also provides the
service member with an opportunity to notify his or her commander of the member’s intent to
seek a medical or religious exemption.
17. Officer administrative separation is initiated by a formal report of misconduct to
Navy Personnel Command (NAVPERS), as required by MILPERSMAN 1611-010, and
governed by the procedures in SECNAV Instruction 1920.6D (hereinafter SECNAVINST
1920.6D). The CCDA serves as the “show cause authority” under SECNAVINST 1920.6D, and
15
“A member, who enters into a written agreement with specified service conditions for receipt of a bonus, special
or incentive pay, educational benefits, stipend, or similar payment (hereinafter referred to as “pay or benefit”) is
entitled to the full amount of the pay or benefit if the member fulfills the required conditions. Failure to fulfill the
conditions specified in the written agreement may result in termination of the agreement and the member may be
required to repay the unearned portion of the pay or benefit.” DoD 7000.14-R, Vol VII, Ch. 2, ¶ 020101 (“DoD
Financial Management Regulation”) (emphasis added). Service members are subject to recoupment if they have
entered into a contract agreeing to serve for a specified period of time in exchange for special pay or educational
benefits. “Training” is not included in the scope of pay and benefits subject to recoupment.
16
Navy Enlisted Classifications define the work performed by Navy enlisted members and the requirements to
perform specific “ratings” (i.e., occupations). See generally, MANUAL OF NAVY ENLISTED MANPOWER AND
PERSONNEL CLASSIFICATIONS AND OCCUPATIONAL STANDARDS, VOL II NAVY ENLISTED CLASSIFICATIONS
(NAVPERS 18068F), April 21, 2021 (supplementing the enlisted rating structure in identifying personnel and billets
[i.e., jobs] and skills, knowledge, aptitude, or qualifications that must be documented to identify both people and
billets for management purposes).
14
155a
requires mandatory show cause proceedings for all officers who refuse the vaccine. Specifically,
officers are processed for separation on the bases of Misconduct, Moral or Professional
Dereliction, and Substandard Performance. NAVADMIN 225/21 ¶ 7.a. Officers are processed
with the least favorable characterization of service17 as General (Under Honorable Conditions),
unless inclusion of another basis for separation warrants a characterization of Other Than
Honorable. Id.; NAVADMIN 256/21 ¶ 2.a. Final direction regarding administrative separation
processing, including basis for separation for vaccine refusals, is expected to be promulgated in
December 2021. Id. ¶ 4.a.(1).
a. The specific procedures involved with processing an officer for misconduct are
outlined in SECNAVINST 1920.6D, Enclosure (6), “Policy Governing Involuntary
Separation for Cause or Parenthood”, and Enclosure (7), “Guidelines on Separations for
Cause.” The applicable procedures may vary in certain respects depending on the
officer’s type of appointment, years of service, and record of performance, amongst other
factors.
b. Probationary officers may be processed without a Board of Inquiry (BOI)
when the show cause authority determines that an Honorable, or General (under
honorable conditions) characterization of service is appropriate. SECNAVINST 1920.6D,
Encl (2), ¶ 25; Encl (7), ¶ 3.a. Non-probationary officers must be processed using BOI
procedures, which entails a formal administrative hearing over which a panel of no fewer
17
A characterization of service is assigned to a Service member upon separation from the military and generally
reflects the quality of an individual’s military service. The highest characterization of service is Honorable,
followed by General (Under Honorable Conditions), Other Than Honorable, Bad-Conduct, and Dishonorable.
Officers may be awarded a Dismissal, which is akin to a Dishonorable discharge. The first three types of
characterization may be awarded using administrative procedures, whereas Bad Conduct and Dishonorable
discharges, as well as an officer’s Dismissal, are considered “punitive discharges.” These types of discharges may
only be awarded by a court-martial sentence and imposed after appellate review is complete.
15
156a
than three senior officers preside in order to make findings with respect to the bases for
separation, and recommendations with respect to retention or separation, and character of
service. Id., Encl (7) ¶ 4; Encl (11).
18. Administrative separation of enlisted service members is processed under
MILPERSMAN 1910-142, “Commission of a Serious Offense.” NAVADMIN 225/21 ¶ 7.b. A
“serious offense” is one that would warrant a punitive discharge in accordance with the Manual
for Courts-Martial (MCM), which includes violations of Article 92, UCMJ. MILPERSMAN
1910-142 ¶ 2.a. The CCDA directs processing with the least favorable characterization of
General (Under Honorable Conditions), unless inclusion of another basis for separation warrants
other than honorable. NAVADMIN 225/21 ¶ 7.b; NAVADMIN 256/21 ¶ 2.a.
a. Similar to officer administrative separation processing, the applicable
procedures may vary in certain respects depending on the service member’s specific
community (e.g., nuclear-trained Sailors), their years of service, and record of
performance, amongst other factors. Processing of enlisted Navy service members is
initiated using a NAVPERS form 1910/31, “Administrative Separation Processing
Notice,” and those service members may be processed using either notification
procedures or administrative board procedures under MILPERSMAN 1910-402.
b. Notification procedures are appropriate where the least favorable
characterization is General (Under Honorable Conditions). Id. ¶ 1.a. For Navy service
members with fewer years of service, notification procedures permit an opportunity to
consult with counsel and submit matters for consideration to the separation authority.
The CCDA serves as the separation authority for cases involving vaccine refusal, unless a
higher separation authority is required by MILPERSMAN 1910-704. NAVADMIN
16
157a
225/21 ¶ 7.b. Navy service members with more than 6 years of service may elect an
administrative separation board, which is a formal administrative hearing similar to a
BOI except with regards to the composition of board membership and post-hearing
administrative processing. See generally MILPERSMAN 1910-010 through 1910-710.
19. Timelines to complete administrative processing vary depending on whether the
Navy service member is an officer or enlisted Sailor, the efficiency of administrative processing
within any given command or unit, and what specific procedures apply to the member’s case.
For cases involving a Navy service member’s vaccine refusal and no other misconduct or basis
for separation, the following timelines offer a rough estimate for administrative separation
processing:
a. For officers, it generally takes between 6 to 12 months from the time the
officer is notified to show cause to the officer’s approved separation. It takes
approximately 86 days from notification of officer misconduct to NAVPERS before the
officer is notified to show cause. The officer (“respondent”) normally has 10 working
days to respond to the notice, and an extension of time may be granted for good cause.
The commanding officer must forward the case to the Secretary of the Navy via
NAVPERS and the Chief of Naval Personnel (CNP). Review of the case at each level of
review takes approximately 50 to 75 days. In cases where a BOI is required, it typically
takes another 120 days to complete all phases of the BOI process. The respondent is
afforded a minimum 30 days’ notice prior to the board convenes, and may request a
continuance not to exceed 30 days for good cause. After review is completed and the
officer’s separation is approved, the decision is communicated to the command via naval
17
158a
message. The officer is generally required to complete separation requirements within 60
days of the approved separation notice.
b. Administrative separation of enlisted service members often takes several
months, although the range of processing timelines varies more so than with officer
processing. Following the notice of administrative separation, the service member
generally has two working days to consult with counsel. For probationary service
members, the individual may elect to submit matters to the separation authority and is
given a reasonable time to do so, typically 5 working days. The commander must then
route the case file to the CCDA for action as the separation authority. The approved
separation is then forwarded to the command to complete separation processing
requirements locally. Where a service member is entitled to, and thereafter elects an
administrative separation board, the command must request qualified counsel be assigned
to the member. The command and the member’s counsel then coordinate to set a date for
the administrative hearing. There is no required timeline, but generally the board should
occur within 30 days of defense counsel appointment. Following the board, the
command must generate a record of the board’s proceedings and forward the case file to
the CCDA using a formal letter format, which typically takes between 5-10 working
days. Where a higher separation authority is required by MILPERSMAN 1910-704, such
as for members with greater than 18 years of service or who are pending a Physical
Evaluation Board (PEB), the review timelines inherent to officer administrative
separation processing apply.
20. While NAVADMIN 225/21 withholds authority to initiate disciplinary either non-
judicial punishment or courts-martial for cases involving vaccine refusal, commanders generally
18
159a
possess a wide array of administrative and disciplinary options with which to dispose of service
members’ offenses under the UCMJ. Subject to the limits of the commander’s authority, the
commander’s administrative corrective measures include formal or informal counseling, non-
punitive letters of caution or censure,18 withholding of privileges, and extra-military instruction,
as governed by the relevant service policy. Disciplinary options include non-judicial punishment
under Part V of the MCM, disposition of the charges by court-martial where the commander has
the authority to do so, or forwarding of charges for trial by court-martial where the commander
does not.
a. Nonjudicial punishment is a forum generally reserved for minor offenses, or
those offenses which the maximum sentence would not include a Dishonorable Discharge
or confinement for greater than one year if tried by a general court-martial. MCM, Part V
¶ 1.e. Punishments are limited by the rank and position of the cognizant commander, as
well as the rank of the person accused of misconduct. Id. ¶ 2, 5. Punishments and
service limitations are outlined in MCM Part V and the Manual of the Judge Advocate
General (JAGMAN), but commonly include some combination of the following:
admonishment or reprimand, extra duties, restriction, reduction in rank, or forfeiture of
pay. MCM, Part V ¶ 5; JAGMAN, 0111. Commanders are encouraged to permit the
accused to speak with counsel subject to the immediate availability of counsel, the delay
involved, and operational commitments or military exigencies. JAGMAN 0108 ¶ a.(1).
Service members not attached to a vessel have the right to refuse non-judicial punishment
and request trial by court-martial. MCM, Part V ¶ 3; JAGMAN 0108 ¶ a. Following
18
Non-punitive letters of caution or censure are matters between the issuing authority and the counseled member
and do not become part of the member’s official service record. Manual of the Judge Advocate General (JAGMAN)
105 ⁋b.(2).
19
160a
imposition of non-judicial punishment, the service member has five working days to
submit an appeal, and may request additional time for good cause. MCM, Part V ¶ 7.
The member’s appeal is forwarded, along with the commander’s endorsement, to the
cognizant general court-martial convening authority for action. MCM, Part V ¶ 7;
JAGMAN, 0117.
b. More serious offenses under the UCMJ may be subject to trial by court-
martial. There are three types of courts-martial: summary court-martial, special court-
martial, and general court-martial. Depending on the rank and position of the
commander, he or she may or may not be authorized to convene certain types of courts-
martial. UCMJ, 10 U.S.C. § 821-24. Further, the nature of the proceedings and
punishments available are limited depending on the forum and rank of the accused. See
UCMJ, 10 U.S.C. Chapter 47, Subchapters IV, VIII. The most severe punishments, such
as the death penalty, a Dishonorable Discharge, Dismissal, or extended periods of
confinement, are only available at general courts-martial, and certain offenses are only
permitted to be tried by general courts-martial. Id. Summary courts-martial are less
formal than either special or general courts-martial, which are equivalent in formality and
procedure to civilian criminal courts; however, each court-martial forum is governed by
the procedures outlined in the MCM, Part II, Rules for Court Martial. Special courts-
martial and general courts-martial, in particular, have substantial legal and procedural
requirements with respect to pre-trial, trial, and post-trial judicial proceedings.19 The
adjudication of trials by court-martial generally take months before the court is convened,
19
Relevant to a charge of violation of Article 92 (disobeying a lawful order) for refusal to receive the COVID-19
vaccination, an accused member could choose to raise all available affirmative defenses, including the lawfulness of
the order, at court-martial.
20
161a
and may take several months, depending on the matters involved in the case and the
court’s docket, prior to the trial date. Upon conclusion of the trial, the member may
appeal the findings or sentence as provided in Chapter XI and XII of the MCM.
21. The administrative and disciplinary options available to commanders are the same
for both active duty and reserve component Service members; however, the application of such
options with respect to Reservists is subject to unique jurisdictional and practical considerations.
A member of a Reserve Component on active duty or inactive-duty training is subject to the
UCMJ and they may be ordered to active duty for disciplinary proceedings. UCMJ Art. 2, 10
U.S.C. §802; JAGMAN, 0107. Punishments awarded at non-judicial punishment are limited to
the duration of the Service member’s period of active duty or inactive-duty training. Id., 0112.
Special procedures apply to recall members of the reserve component to activity duty for
purposes of a court-martial, and such members may be retained on active duty to serve a
punishment of confinement or restraint on liberty. Id., 0123. Administrative separation
procedures are largely the same as those used with active duty Service members, with minor
variations related to composition of the board and post-board administrative processing. See,
e.g., SECNAVINST 1920.6D, Encl. 11, ¶ 3.b., and MILPERSMAN 1910-704 (requiring a
Reservist member on officer and enlisted administrative separation boards).
22. Any service member who believes he or she has been wronged by his or her
commanding officer may seek redress from the commanding officer’s immediate superior in
command under UCMJ, Article 138, Complaints of wrongs. 10 U.S.C. § 938. Discharged
service members may seek a review of his or her discharge through the cognizant Discharge
Review Board (DRB). 10 U.S.C. § 1553. The DRB is empowered to change and issue a new
discharge on grounds of equity or propriety. 32 C.F.R. § 70.9. DRBs may consider factors such
21
162a
as the applicant’s service history, awards and decorations, letters of commendation or reprimand,
wounds received in action, acts of merit, length of service, convictions by court-martial or
civilian convictions, non-judicial punishments, records of unauthorized absence, or records
relating to the member’s discharge. Id. Discharged service members may also seek an upgraded
discharge from the appropriate Board for Correction of Military Records (BCMR), which is the
Board for Correction of Naval Records (BCNR) for the Navy and Marine Corps personnel. 10
U.S.C. § 1552. The BCNR has more extensive authority than DRBs to upgrade discharges, void
discharges, alter reenlistment codes, and remove otherwise inaccurate or adverse documents
from a service member’s record. The removal of inaccurate or wrongfully adverse documents
from the service member’s record may result in restoration of additional qualification
designations, Navy Enlisted Classifications and associated designations and insignia.
Additionally, Navy and Marine Corps personnel who have not yet been discharged may petition
the BCNR for relief. The BCNR may correct any military record when it is necessary to correct
an error or remove an injustice. Id. The BCNR’s action may result in a member being reinstated
in the Navy, which may also result in back pay, including any special duty or incentive pays
wrongfully withheld, and retroactive advancement or promotion. If a service member is unable
to obtain relief through the appropriate DRB or BCMR, the service member may elect to
challenge the agency’s decision and administrative proceedings in federal court under applicable
federal law.
23. In summary, the Navy is providing its personnel opportunities to seek medical and
religious exemptions from the requirement to be vaccinated. For those service members who do
not wish to pursue an exemption or have their exemption requests denied after full adjudication
including appeals and still refuse to be immunized, the Navy’s interest in good order and
22
163a
164a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
____________________________________
)
U.S. NAVY SEALs 1-26, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 4:21-cv-01236-O
)
JOSEPH R. BIDEN, JR., in his official )
capacity as President of the United States, )
et al., )
)
Defendants. )
____________________________________ )
DECLARATION OF COLONEL TONYA RANS
I, Colonel Tonya Rans, hereby state and declare as follows:
1. I am currently employed by the U.S. Air Force as the Chief, Immunization
Healthcare Division, Defense Health Agency – Public Health Directorate, located in Falls Church,
Virginia. I have held the position since June 2017. I am a medical doctor and have been board
certified in Allergy/Immunology since 2008 and was a board certified Pediatrician from 2001-
2015.
2. In my current role, my responsibilities include directing a responsive, evidence-
based, patient-centered organization promoting optimal immunization healthcare for all DoD
beneficiaries and those authorized to receive immunization from DoD. This includes assisting in
policy development, providing implementation guidance and education, and engaging in clinical
studies and research through clinical collaboration. The Defense Health Agency-Immunization
Healthcare Division (DHA-IHD) routinely engages with the medical representatives from the
military departments, U.S. Coast Guard, Joint Staff, Combatant Commands, and others to develop
165a
standardized immunization implementation guidance in accordance with published policy for
consistency across DoD where possible.
3. I am aware of the allegations set forth in the pleadings filed in this matter. This
declaration is based on my personal knowledge, as well as knowledge made available to me during
the routine execution of my official duties.
Coronavirus Disease 2019 (COVID-19)
4. As part of my official duties, I served as a member of the COVID-19 Vaccine
Distribution Operational Planning Team (OPT), which was directed to develop and implement
DoD’s COVID-19 Vaccine Distribution plan. The Coronavirus Task Force (CVTF) provided
overarching guidance to the OPT. The OPT provided routine and ad hoc updates on COVID-19
vaccine deliveries, administration, and adverse events to the CVTF.
5. The virus that causes COVID-19 disease is SARS-CoV-2, a ribonucleic acid (RNA)
virus from the Coronavirus family. Like any RNA virus, the SARS-CoV-2 virus mutates and
evolves constantly and regularly as it infects and replicates in host cells. Mutations that are
beneficial to the virus (i.e., make the virus more easily spread between hosts, evade the immune
system) are integrated into the viral genome, thereby increasing “survival” and replication
opportunity. This has been seen with the SARS-CoV-2 “Delta” variant, which is twice as
contagious as previous variants. 1 However, not all mutations are beneficial to the virus – some
can result in virus death and therefore do not infect the host. This is part of the normal biology
cycle of all viruses.
1
https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html, last accessed
December 8, 2021.
2
166a
6. The latest reports from the U.S. Centers for Disease Control and Prevention (CDC)
indicate that the SARS-CoV-2 virus spreads when an infected person breathes out droplets and
very small particles that contain the virus. 2 These droplets and particles can be inhaled by other
people or land on their eyes, noses, or mouth. In some circumstances, viral particles
may contaminate surfaces. People who are closer than 6 feet from the infected person are most
likely to get infected, especially in areas where there is poor ventilation.
7. COVID-19 disease can cause acute symptoms such as fever/chills, cough, shortness
of breath, fatigue, muscle aches, headache, loss of sense of smell or taste and/or sore throat.
Symptoms appear 2-14 days (usually within 4-5 days) after viral exposure. 3 The infection can
affect people in different ways: from asymptomatic, to limited and mild (for 2-3 days) to more
severe (such as trouble breathing, chest pain, inability to think straight and inability to stay awake).
Even with the availability of aggressive medical management and ventilator support in an intensive
care setting for those with severe symptoms, hundreds of thousands with COVID-19 disease have
died. As of December 1, 2021, CDC reports that over 48 million individuals in the U.S. have been
diagnosed with COVID-19 disease, over 3.4 million have been hospitalized, and over 781,000
have died (approximately 1 in 500 in the total U.S. population of 330 million). 4 Per the CDC, the
elderly and those with underlying medical conditions like cardiovascular disease, diabetes, chronic
2
https://www.cdc.gov/coronavirus/2019-ncov/faq.html, last accessed December 7, 2021.
3
https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html,
last accessed December 7, 2021.
4
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html, last accessed
December 7, 2021.
3
2
167a
respiratory disease, obesity, pregnancy, immunocompromising conditions, or cancer are more
likely to develop serious illness. 5
8. Although most people with COVID-19 get better within weeks of illness, some
people experience post-COVID-19 conditions (aka long/long-haul COVID, Postacute Sequelae of
COVID-19 (PASC), long-term effects of COVID, or chronic COVID). Post-COVID-19
conditions include a wide range of new, returning, or ongoing health problems four or more weeks
after infection. Those who were asymptomatic during their COVID-19 infection may still develop
post-COVID-19 conditions. One systematic review assessing short and long-term rates of long-
COVID in more than 250,000 COVID-19 survivors from 57 studies with an average age of 54
years demonstrated that more than 50% of these COVID-19 survivors continued to have a broad
range of symptoms six months after resolution of the acute COVID-19 infection, of which the
most common were functional mobility impairments, respiratory abnormalities, and mental health
disorders. 6 Another study comparing outcomes in patients referred to outpatient rehabilitation
clinics after COVID-19 reported poorer general, mental, and physical health and functioning
compared with patients with no previous diagnosis of COVID-19 referred for cancer rehabilitation.
Those referred for rehabilitation following COVID-19 were more likely to be male, younger, and
employed. 7 A study assessing clinical patterns and recovery time from COVID-19 illness in 147
international-
5
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-
conditions.html, last accessed December 7, 2021.
6
Groff, et al, JAMA Network Open, Short-term and Long-term Rates of Postacute Sequelae of
SARS-CoV-2 Infection, https://jamanetwork.com/journals/jamanetworkopen/fullarticle/27849
18.
7
Rogers-Brown JS, et al. CDC Morbidity and Mortality Weekly Report, Vol 70(27) 9 July 2021
https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7027a2-H.pdf.
4
168a
days, whereas 14% had symptoms of longer duration. In both groups, fatigue, dry cough, and
headache were the predominant symptoms. 8 As described further below, myocarditis associated
with COVID-19 disease or mRNA COVID-19 vaccine is rare. However, the risk of myocarditis
associated with COVID-19 disease is consistently higher than the risk of myocarditis associated
mRNA COVID-19 vaccine. Hence, the risk to benefit ratio continues to be in favor of vaccination.
COVID-19 Impacts on the Force
9. Infectious diseases have been the single greatest threat to the health of those
involved in military operations. As the standard military unit shrinks and becomes more mobile
to rapidly respond to global threats, any decrease in personal or unit readiness can significantly
decrease operational efficiency and result in military ineffectiveness. Similar to other viruses,
SARS-CoV-2 virus can be easily transmitted to others prior to symptom development and
therefore may infect significant numbers before being identified. DoD personnel, including
service members, especially those in an operational setting (such as those working on ships,
submarines, or engaged in the operation of aircraft and vehicles; those deployed to austere
environments; or those engaged in routine field training and airborne exercises), work in
environments where duties may limit the ability to strictly comply with mitigation measures such
as wearing a face mask, avoiding crowded areas, maintaining physical distancing of at least 6 feet,
increasing indoor ventilation, maintaining good hand hygiene, and quarantining if in close contact
with a COVID-19 case. Therefore, upon exposure, these individuals may be at higher risk to be
diagnosed with COVID-19 compared to those who can robustly maintain all recommended
mitigation strategies. Further, although the elderly population and those with medical conditions
8
Hull JH, et al. Clinical patterns, recovery time and prolonged impact of COVID-19 illness in
international athletes: the UK experience. Br J Sports Med 2021;0:1-8. Doi 10.1136/bjsports-
2021-104392.
5
2
169a
are more likely to have severe disease, otherwise healthy Service members have developed “long-
haul” COVID-19, potentially impacting their ability to perform their missions. Data presented
from DoD’s COVID-19 registry has demonstrated that of 111,767 active duty service members
who had COVID-19 disease between February 1, 2020 to August 12, 2021, 37,838 (33.9%) had
diagnoses for conditions requiring a healthcare visit 30-180 days following their illness, the most
common being joint/muscle pain (15,614 or 14%) followed by chest pain/cough (7,887 or 7.1%).
In comparison, only 8.3% and 1.81%, respectively, of active duty service members had a
healthcare visit for those diagnoses 30-180 days after vaccination. All diagnoses associated with
“Long-COVID-19 Syndrome” were found to be more common after COVID-19 disease than after
COVID-19 vaccination. Some service members have unfortunately succumbed to the disease, as
described further below. Service members and federal civilian employees are the military’s most
valuable asset; without a medically ready force and ready medical force, the military mission is at
high risk of failure. Recommendations from evidence-based medicine must remain the core
approach to medical readiness. These evidence-based recommendations will continue to be
updated as our understanding of the disease, complications, and impact from vaccination continues
to evolve.
10. Between February 2020 and November 2021, there were 209,133 new and repeat cases of
COVID-19 among active duty service members (see “Table” below). The largest monthly peak
in cases occurred in January 2021, with 28,345 cases identified (see “Figure” below). Other
peaks occurred in August 2021 with 22,042 cases and in July 2020 with 11,610 cases. The
percentage of cases that were hospitalized was highest at the start of the pandemic and trended
downward through January 2021. The percentage of hospitalized cases then increased from
0.9% in January 2021 to 2.1% in May 2021, and decreased to 1.5% in September 2021. The
6
170a
percentage of hospitalized cases decreased to 0.8% in November 2021, but this trend should be
interpreted with caution due to data lags. In total, 30 active duty service members have died
from COVID-19 as of the end of November 2021. The number of active duty service members
who died from COVID-19 remained very low throughout the first year of the pandemic, with a
slight increase in the numbers of deaths occurring between December 2020 and February 2021,
and a greater increase occurring between August and October 2021, coinciding with the
increased spread of the Delta variant. More than one-half of the 30 deaths in active duty service
members occurred between August and October 2021 (n=17). One active duty service member
died from COVID-19 in November 2021.
Table. COVID-19 cases, hospitalizations, and deaths among active
duty service members, February 2020 - November 2021
No. No. % No.
cases hospitalizations hospitalizations deaths
Feb-20 7 2 28.6 0
Mar-20 1,150 57 5.0 0
Apr-20 2,126 60 2.8 1
May-20 1,204 22 1.8 0
Jun-20 6,789 91 1.3 0
Jul-20 11,610 176 1.5 0
Aug-20 8,010 115 1.4 0
Sep-20 6,118 98 1.6 0
Oct-20 10,047 144 1.4 1
Nov-20 20,419 197 1.0 0
Dec-20 22,115 215 1.0 2
7
171a
Jan-21 28,345 269 0.9 2
Feb-21 10,981 137 1.2 4
Mar-21 8,132 141 1.7 0
Apr-21 8,571 146 1.7 1
May-21 4,417 92 2.1 0
Jun-21 3,569 67 1.9 0
Jul-21 11,583 235 2.0 1
Aug-21 22,042 356 1.6 5
Sep-21 12,406 186 1.5 6
*Oct-21 4,723 67 1.4 6
*Nov-21 4,769 39 0.8 1
*Hospitalization data not complete due to data lags
Figure. COVID-19 cases among active duty service members and percentage of cases that were
hospitalized, March 2020 – November 2021
30,000 6.0
25,000 5.0
% Hospitalized (line)
20,000 4.0
No. cases (bars)
15,000 3.0
10,000 2.0
5,000 1.0
0 0.0
Note: February 2020 is not shown due to the very small number of cases. Hospitalization data for October-
November 2021 not complete due to data lags
8
172a
11. The DoD has provided information on its website concerning the number of
vaccinations provided by DoD, the vaccination of the force, and health impact of those who
developed COVID-19 infections. 9 As depicted below, December 1, 2021 data, demonstrated that
of the 393,671 COVID-19 cases within the DoD, 5,544 individuals were hospitalized and 612 have
died, including 77 military service members (service members include Active Duty, Reserves, and
National Guard personnel). In both the civilian sector and in the military, the overwhelming
majority of individuals hospitalized or who died were not vaccinated or not fully vaccinated.
12. The bed capacity at DoD’s military medical treatment facilities (MTFs) has
generally followed local civilian hospital utilization, with some MTFs having high admission rates
and a need to temporarily curtail medical services. The National Guard has been called on
extensively to provide medical support to the civilian population throughout the pandemic and
Services have also provided “manning assist” to other DoD MTFs and civilian hospitals.
9
https://www.defense.gov/Spotlights/Coronavirus-DOD-Response/, last accessed December 7,
2021.
9
173a
Vaccine Impacts
13. Immunization is a global health and development success story, saving millions of
lives across the age spectrum annually from illness, chronic conditions, and potentially death.
Immunizations provide benefit at both the individual and community level. First, by stimulating
an active immune response, vaccinated individuals are largely protected from the disease of
concern. Second, when a high proportion of individuals are immune (i.e., herd immunity) human-
to-human transmission is disrupted, thereby protecting those who remain susceptible (i.e., those
who may not be able to receive a vaccine or do not mount an adequate antibody response). Disease
prevention through immunization also mitigates the need for pharmacologic treatment (antibiotics,
etc.), reducing the risk of drug-resistant pathogen development.
14. As a key component of primary health care, the U.S. Food and Drug Administration
(FDA), which provides regulatory allowance for immunizations, has licensed vaccines for over 20
different infectious diseases. The Advisory Committee on Immunization Practices (ACIP), an
advisory committee of the CDC, develops recommendations on how to use vaccines to control
diseases in the United States. The military also maintains awareness, surveillance, and provides
guidance to DoD personnel and beneficiaries on vaccine-preventable diseases in the global setting.
15. According to the CDC, over 471 million doses of COVID-19 vaccine have been
given in the United States from December 14, 2020, through December 6, 2021. 10 Evidence
continues to show that the incidence of SARS-CoV-2 infection, hospitalization, and death is higher
in unvaccinated than vaccinated persons. Although weekly rates can vary, the cumulative rate of
10
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/safety-of-vaccines.html, last
accessed December 7, 2021.
10
2
174a
COVID-19 associated hospitalizations in unvaccinated adults ages 18-49 years was about 13 times
higher than fully vaccinated adults aged 18-49 years. 11
Also, according to CDC data, deaths by vaccination status from April 4, 2021-October 2, 2021
showed that unvaccinated persons had a 5.8 times greater risk of testing positive for COVID-19
and a 14 times greater risk of dying from COVID-19. 12
11
https://covid.cdc.gov/covid-data-tracker/#covidnet-hospitalizations-vaccination, last accessed
December 7, 2021.
12
https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status, last accessed November 18,
2021.
11
175a
12
176a
16. Although COVID-19 vaccine effectiveness against infection has decreased over
time, this is seen more significantly in individuals 65 years of age and older. COVID-19 vaccine
effectiveness against severe disease (hospitalization and death) remains high. 13
13
https://covid.cdc.gov/covid-data-tracker/#vaccine-effectiveness, last accessed December 7,
2021.
13
2
177a
17. As of December 7, 2021, DoD immunization sites have administered over 6.4
million doses of COVID-19 vaccine. Vaccine adverse events that are potentially related to
vaccination are centrally captured through the Vaccine Adverse Event Reporting System (VAERS)
through passive surveillance, meaning that information is voluntarily reported by health care
providers and the public. As of November 23, 2021, a total of 7,369 unique VAERS reports
(approximately 11 VAERS reports/10,000 doses administered) were submitted by DoD
beneficiaries or those authorized to receive vaccine from DoD. Note that the number of VAERS
reports/10,000 doses administered for DoD beneficiaries is likely to be lower, as the denominator
does not take into account beneficiaries who receive vaccine in the civilian sector though DoD
would still receive their VAERS report if the submitter indicated military affiliation. Additionally,
individuals who had an adverse event but did not submit a VAERS would not be known and
therefore would not be counted. Of note, a VAERS submission to the CDC does not mean that
the vaccine of concern caused or contributed to the medical issue reported.
18. As of December 2021, the DoD has received hundreds of thousands of BLA-
manufactured, EUA-labeled vaccine doses and is using them.
14
178a
19. Approach to immunizations within DoD are outlined in DoD Instruction 6205.02,
“DoD Immunization Program” dated June 19, 2019, which states that it is DoD policy that all DoD
personnel and other beneficiaries required or eligible to receive immunizations will be offered
immunizations in accordance with recommendations from the CDC and its ACIP. Army
Regulation 40-562, Navy Bureau of Medicine and Surgery Instruction 6230.15B, Air Force
Instruction 48-110_IP, Coast Guard Commandants Instruction M6230.4G, “Immunizations and
Chemoprophylaxis for the Prevention of Infectious Diseases,” October 7, 2013, further states the
Military Service policy concerning immunizations follows the recommendations of the CDC,
ACIP, and the prescribing information on the manufacturer’s package inserts, unless there is a
military-relevant reason to do otherwise. This document does also describe general examples of
medical exemptions, which include “evidence of immunity based on serologic tests, documented
infection, or similar circumstances.” Some interpret this as a diagnosis of COVID-19 disease
and/or results of a COVID-19 serologic test means that a medical exemption should be granted.
However, of significance is the phrase “evidence of immunity.” CDC defines immunity as
“protection from an infectious disease. If you are immune to a disease, you can be exposed to it
without becoming infected.” 14 There are two major types of testing available for COVID-19:
diagnostic tests, which assess for current infection, and antibody tests, which assesses for antibody
production, indicative of either past infection and (in some tests) a history of vaccination. The
FDA states, “We do not know how long antibodies stay in the body following infection with the
virus that causes COVID-19. We do not know if antibodies give you protective immunity against
the virus, so results from a serology test should not be used to find out if you have immunity from
14
https://www.cdc.gov/healthyschools/bam/diseases/vaccine-basics.htm, accessed December 9,
2021.
15
179a
the virus. The FDA cautions patients against using the results from any serology test as an
indication that they can stop taking steps to protect themselves and others, such as stopping social
distancing or discontinuing wearing masks.” 15 As described below, lab test results also state that
it is unclear at this time if a positive IgG infers immunity against future COVID-19 infection.
Therefore, given the scientific evidence available at this time, a medical exemption based on the
history of COVID-19 disease or serology results does not meet “evidence of immunity”. The
presence of antibodies is not the same thing as being immune.
20. The CDC states that “COVID-19 vaccination is recommended for everyone aged 5
years and older, regardless of a history of symptomatic or asymptomatic SARS-CoV-2 infection;
this includes people with prolonged post-COVID-19 symptoms and applies to primary series
doses, additional primary doses, and booster doses. Viral testing to assess for acute SARS-CoV-
2 infection or serologic testing to assess for prior infection is not recommended for the purpose of
vaccine decision-making. Present data are insufficient to determine an antibody titer threshold
that indicates when an individual is protected from SARS-CoV-2 infection. There is neither any
FDA-authorized or FDA-approved test nor any other scientifically validated strategy that
vaccination providers or the public can use to reliably determine whether a person is protected
from infection. Data from multiple studies indicate that the currently approved or authorized
COVID-19 vaccines can be given safely to people with evidence of a prior SARS-CoV-2
infection.” 16
15
https://www.fda.gov/consumers/consumer-updates/coronavirus-disease-2019-testing-basics,
accessed December 9, 2021.
16
https://www.cdc.gov/vaccines/covid-19/clinical-considerations/covid-19-vaccines-
us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fvaccines%2Fcovid-19%2Finfo-
by-product%2Fclinical-considerations.html, accessed December 9, 2021.
16
180a
21. Further, CDC states “current evidence suggests that the risk of SARS-CoV-2
reinfection is low after a previous infection but may increase with time due to waning immunity.
Among individuals infected with SARS-CoV-2, substantial heterogeneity exists in their immune
response. (The term “heterogeneity” means that those individuals have diverse or varying immune
responses which, when compared to the subsequent response of those receiving the COVID-19
vaccine, are not as reliable or consistent.) Conversely, the immune response following COVID-
19 vaccination is more reliable, consistent, and predictable. A primary vaccination series
decreases the risk of future infections in people with prior SARS-CoV-2 infection. Numerous
immunologic studies have consistently shown that vaccination of individuals who were previously
infected enhances their immune response, and growing epidemiologic evidence indicates that
vaccination following infection further reduces the risk of subsequent infection, including in the
setting of increased circulation of more infectious variants”. 17
22. Although natural infection for some diseases, in some cases, can result in long-
standing immunity (e.g., measles), there is risk of untoward outcomes from the disease itself,
which can be chronic or even fatal. Examples of harmful outcomes outside of COVID-19 include
Pneumonia or invasive group B Strep from chickenpox, meningitis or epiglottitis from
Haemophilis influenza type B, birth defects from rubella, liver cancer from Hepatitis B, and death
from measles.
23. Other examples of natural infections that do not mount long-standing immunity
include Influenza, Respiratory Syncytial Virus, Malaria, Whooping cough, and rotavirus;
17
https://www.cdc.gov/vaccines/covid-19/clinical-considerations/covid-19-vaccines-
us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fvaccines%2Fcovid-19%2Finfo-
by-product%2Fclinical-considerations.html, accessed December 9, 2021.
17
181a
therefore, re-infection is possible. Multiple serotypes of some pathogen like influenza,
pneumococcus, and possibly with the SARS-CoV-2 variants also makes determination of a
protective serologic level more difficult, especially to say there is lifelong immunity.
24. In October 2021, prior to the presentation of the Omicron variant, the newest
SARS-CoV2 variant of concern, CDC summarized a review of 96 peer-reviewed and preprint
publications, providing an overview of current scientific evidence regarding infection-induced
immunity. 18 Key findings include the following:
Available evidence shows that fully vaccinated individuals and those previously infected
with SARS-CoV-2 each have a low risk of subsequent infection for at least 6 months.
Data are presently insufficient to determine an antibody titer threshold that indicates
when an individual is protected from infection. At this time, there is no FDA-authorized
or approved test that providers or the public can use to reliably determine whether a
person is protected from infection.
o The immunity provided by vaccine and prior infection are both high but not
complete (i.e., not 100%).
o Multiple studies have shown that antibody titers correlate with protection at a
population level, but protective titers at the individual level remain unknown.
o Whereas there is a wide range in antibody titers in response to infection with
SARS-CoV-2, completion of a primary vaccine series, especially with mRNA
vaccines, typically leads to a more consistent and higher-titer initial antibody
response.
18
https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/vaccine-induced-
immunity.html, accessed December 9, 2021.
18
182a
o For certain populations, such as the elderly and immunocompromised, the levels
of protection may be decreased following both vaccination and infection.
o Current evidence indicates that the level of protection may not be the same for all
viral variants.
o The body of evidence for infection-induced immunity is more limited than that for
vaccine-induced immunity in terms of the quality of evidence (e.g., probable bias
towards symptomatic or medically-attended infections) and types of studies (e.g.,
observational cohort studies, mostly retrospective versus a mix of randomized
controlled trials, case-control studies, and cohort studies for vaccine-induced
immunity). There are insufficient data to extend the findings related to infection-
induced immunity at this time to persons with very mild or asymptomatic
infection or children.
25. Debate continues about whether natural immunity versus vaccine-induced immunity
is more protective against breakthrough infections (a reinfection in someone who was
previously infected versus an infection in a previously not infected individual who was fully
immunized). A frequently cited, though not peer reviewed, retrospective study from Israel
found that the rates of SARS-CoV-2 breakthrough infections in vaccinated individuals, while
very low (highest rate = 1.5%), were 13 times higher than the rates of reinfection and
hospitalization in previously infected individuals 19. These findings have not been reproduced
in a peer-reviewed publication. However, an observational study, 20 also out of Israel,
19
https://www.medrxiv.org/content/10.1101/2021.08.24.21262415v1, last accessed December 9,
2021
20
Barda N, et al. Safety of the BNT162b2 mRNA COVID-19 Vaccine in a Nationwide Setting
N Engl J Med 2021; 385:1078-1090
19
183a
compared adverse events in Pfizer-BioNTech vaccinated versus unvaccinated individuals in
addition to those who had a history of COVID-19 disease versus those who did not. As
previously identified in multiple studies, vaccination with a mRNA vaccine like Pfizer-
BioNTech was associated with an elevated risk of myocarditis compared to those
unvaccinated (risk difference 2.7 events/100,000 people). However, when assessing the
relative risk in those with a history of COVID-19 disease with those who did not have
disease, the risk of myocarditis was substantially higher in those who had COVID-19 disease
(risk difference of 11 events/100,000 persons). The risk difference is calculated as the
difference between the observed risks in the two groups.
The Omicron variant
20
184a
26. On November 26, 2021, the World Health Organization (WHO) designated the Omicron
variant a “variant of concern”, upon recommendations of the Technical Advisory Group on
SARS-CoV-2 Virus Evolution, which assesses if specific mutations and combinations of
mutations alter the behavior of the virus. 21 The United States designated Omicron as a variant of
concern on November 30, 2021 and following first detection in the United States on December 1,
2021, it has rapidly spread throughout the United States. 22 Very preliminary data suggests that
the omicron variant may spread more easily than the original SARS-CoV-2 virus, and it is
unknown how transmission compares to the Delta variant. Severity of disease caused by
Omicron in those who are unvaccinated, had a previous history of disease, and in the
unvaccinated population is unknown. Protection against the Omicron variant in those previously
infected with COVID-19 is not yet understood. Vaccine effectiveness of current FDA-
approved/authorized and WHO-Emergency Use List COVID-19 vaccines is also unclear, but
preliminary data is expected in the next few weeks. Nevertheless, the CDC has stated that
“vaccination is anticipated to continue to offer protection against hospitalization and death, and
vaccines continue to play a critical role in controlling the COVID-19 pandemic.” 23
Risks from COVID-19 Vaccination
21
https://www.who.int/news/item/26-11-2021-classification-of-omicron-(b.1.1.529)-sars-cov-2-
variant-of-concern, last accessed December 9, 2021.
22
https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html, last accessed
December 9, 2021.
23
https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/scientific-brief-omicron-
variant.html, last accessed December 9, 2021.
21
185a
27. Risks from immunization, including COVID-19 vaccines are rare. CDC provides
routine updates on specific adverse events temporally associated with COVID-19 vaccines. 24
CDC updates as of November 30, 2021, include the following:
A. Anaphylaxis after COVID-19 vaccination is rare and has occurred in approximately
2 to 5 people per million vaccinated in the United States.
B. Thrombosis with thrombocytopenia syndrome (TTS) after Johnson & Johnson’s
Janssen (J&J/Janssen) COVID-19 vaccination is rare. As of November 24, 2021,
more than 16.4 million doses of the J&J/Janssen COVID-19 Vaccine have been given
in the United States. CDC and FDA identified 54 confirmed reports of people who got
the J&J/Janssen COVID-19 Vaccine and later developed TTS. Women younger than
50 years old especially should be aware of the rare but increased risk of this adverse
event.
C. Guillain-Barre Syndrome - CDC and FDA are monitoring reports of Guillain-Barré
Syndrome (GBS) in people who have received the J&J/Janssen COVID-19 Vaccine.
GBS is a rare disorder where the body’s immune system damages nerve cells, causing
muscle weakness and sometimes paralysis. Most people fully recover from GBS, but
some have permanent nerve damage. After more than 16.4 million J&J/Janssen
COVID-19 Vaccine doses administered, there have been around 268 preliminary
reports of GBS identified in VAERS as of November 24, 2021. These cases have
largely been reported about 2 weeks after vaccination and mostly in men, many 50
years and older. CDC will continue to monitor for and evaluate reports of GBS
24
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/adverse-events.html, last accessed
December 9, 2021.
22
186a
occurring after COVID-19 vaccination and will share more information as it becomes
available.
D. Myocarditis and pericarditis after COVID-19 vaccination are rare. As of
November 24, 2021, VAERS has received 1,949 reports of myocarditis or pericarditis
among people ages 30 and younger who received COVID-19 vaccines. Most cases
have been reported after mRNA COVID-19 vaccination (Pfizer-BioNTech or
Moderna), particularly in male adolescents and young adults.. Through follow-up,
including medical record reviews, CDC and FDA have confirmed 1,071reports of
myocarditis or pericarditis.
E. Reports of death after COVID-19 vaccination are rare. More than 459 million
doses of COVID-19 vaccines were administered in the United States from December
14, 2020, through November 29, 2021. During this time, VAERS received 10,128
reports of death (0.0022%) among people who received a COVID-19 vaccine. FDA
requires healthcare providers to report any death after COVID-19 vaccination to
VAERS, even if it’s unclear whether the vaccine was the cause. Reports of adverse
events to VAERS following vaccination, including deaths, do not necessarily mean
that a vaccine caused a health problem. A review of available clinical information,
including death certificates, autopsy, and medical records, has not established a causal
link to COVID-19 vaccines. However, recent reports indicate a plausible causal
relationship between the J&J/Janssen COVID-19 Vaccine and TTS, a rare and serious
adverse event that causes blood clots with low platelets, which has caused 6 deaths.
28. Additionally, on October 27 2021, the COVID-19 subcommittee of the WHO Global
Advisory Committee on Vaccine Safety (GACVS) provided an updated statement regarding
23
187a
myocarditis and pericarditis reported with COVID-19 mRNA vaccines, stating, in part: The
GACVS COVID-19 subcommittee notes that myocarditis can occur following SARS-CoV-2
infection (COVID-19 disease) and that mRNA vaccines have clear benefit in preventing
hospitalisation and death from COVID-19. Countries should continue to monitor reports of
myocarditis and pericarditis following vaccination by age, sex, dose and vaccine brand.
Countries should consider the individual and population benefits of immunization relevant to
their epidemiological and social context when developing their COVID-19 immunisation
policies and programs. 25
COVID-19 Antibody Tests
29. As described above, testing to assess for acute SARS-CoV-2 infection or serologic testing
to assess for prior infection is not recommended for the purposes of vaccine decision-making. As
of December 9, 2021, the FDA’s EUA Authorized Serology Test Performances 26 lists
approximately 90 products, of which all of them had one of the following three statements about
immunity interpretation:
A. “You should not interpret the results of this test as an indication or degree of immunity or
protection from reinfection.” 27
25
https://www.who.int/news/item/27-10-2021-gacvs-statement-myocarditis-pericarditis-covid-
19-mrna-vaccines-updated, last accessed December 9, 2021.
26
https://www.fda.gov/medical-devices/coronavirus-disease-2019-covid-19-emergency-use-
authorizations-medical-devices/eua-authorized-serology-test-performance, last accessed
December 9, 2021.
27
https://www.fda.gov/media/146369/download, last accessed December 9, 2021.
24
188a
B. “It is unknown how long antibodies to SARS-CoV-2 will remain present in the body after
infection and if they confer immunity to infection. Incorrect assumptions of immunity may
lead to premature discontinuation of physical distancing requirements and increase the risk
of infection for individuals, their households and the public.” 28
C. “It is unknown how long (IgA, IgM or IgG) antibodies to SARS-CoV-2 will remain present
in the body after infection and if they confer immunity to infection. A positive result for
XXX test may not mean that an individual’s current or past symptoms were due to COVID-
19 infection.” 29
***************************
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge.
Executed on December 10, 2021, in Falls Church, Virginia
Tonya S. Rans
Colonel, Medical Corps, U.S. Air Force
Director, Immunization Healthcare Division
Public Health Directorate
Falls Church, Virginia
28
https://www.fda.gov/media/138627/download, last accessed December 9, 2021.
29
https://www.fda.gov/media/137542/download, last accessed December 9, 2021.
25
File and source
- File
- 21A477_003_Mar_07_2022_Lower_Court_OrdersOpinions_20220307123409049_U.S._Navy_Seals_Stay_Appx.pdf
- Size
- 10,114,032 bytes
- SHA-256
- d9dbeb1ce4da12338ad1a7f053c127abdc513e53ce98e4bcb9eac81413fa44d0
- Our copy
- 21A477_003_Mar_07_2022_Lower_Court_OrdersOpinions_20220307123409049_U.S._Navy_Seals_Stay_Appx.pdf
- Original
- www.supremecourt.gov