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Home Source documents To Plaintiffs’ Motion for an Order to Show Cause

To Plaintiffs’ Motion for an Order to Show Cause

Date
2021-02-07

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
NAVY SEALS 1-26, et al.,
Plaintiffs,
v.
JOSEPH R. BIDEN, JR., in his official capacity as
President of the United States, et al.,
Defendants.

Case No. 4:21-cv-01236-O

DEFENDANTS’ APPENDIX TO DEFENDANTS’ OPPOSITION
TO PLAINTIFFS’ MOTION FOR AN ORDER TO SHOW CAUSE
Table of Appendix
Bates Stamps
Description
App001–App014
Ex. 1 - Declaration of Captain Christopher D. Brown (dated Feb. 2, 2022)
App015–App019
Ex. 2 - Declaration of Lieutenant Commander Ronald E. Harrison
[Regarding SEAL 13]
App020– App027
Ex. 3 - Declaration of Lieutenant Commander Forrest S. Crowell
[Regarding SEAL 14]
App028– App034
Ex. 4 - Declaration of Commander Andrew Sparks [Regarding SEAL 21]
App035– App049
Ex. 5 - Declaration of Lieutenant Commander Forrest S. Crowell
[Regarding SEAL 22]
App050– App056
Ex. 6 - Declaration of Commander Louis P. McFadden, III [Regarding
SEAL 26]
App057– App071
Ex. 7 - Declaration of Commander Matthew Williams [Regarding Diver 2]

Dated: February 7, 2021
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director
/s/Amy E. Powell

ANDREW E. CARMICHAEL
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 1 of 74   PageID 3240

AMY E. POWELL
Senior Trial Counsel
STUART J. ROBINSON
Senior Counsel
ZACHARY A. AVALLONE
COURTNEY D. ENLOW (NC Bar No. 46578)
LIAM HOLLAND
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 616-8467
Fax: (202) 616-8470
Email: courtney.d.enlow@usdoj.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on February 7, 2022, I electronically filed the foregoing paper with the
Clerk of Court using this Court’s CM/ECF system, which will notify all counsel of record of such
filing.

/s/Amy Powell

AMY E. POWELL
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
150 Fayetteville St, Suite 2100
Raleigh, NC 27601
Tel: (919) 856-4013
Fax: (202) 616-8470
Email: amy.powell@usdoj.gov

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Exhibit 1
App001
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 4 of 74   PageID 3243

App002

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 5 of 74   PageID 3244

App003

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 6 of 74   PageID 3245

App004

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 7 of 74   PageID 3246

App005

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 8 of 74   PageID 3247

App006

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 9 of 74   PageID 3248

App007

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 10 of 74   PageID 3249

App008

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 11 of 74   PageID 3250

App009

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 12 of 74   PageID 3251

App010

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 13 of 74   PageID 3252

App011

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 14 of 74   PageID 3253

App012

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 15 of 74   PageID 3254

App013

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 16 of 74   PageID 3255

App014

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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 17 of 74   PageID 3256

Exhibit 2
App015
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 18 of 74   PageID 3257

App016
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 19 of 74   PageID 3258

App017
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 20 of 74   PageID 3259

App018
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 21 of 74   PageID 3260

App019
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 22 of 74   PageID 3261

Exhibit 3
App020
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 23 of 74   PageID 3262

App021
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 24 of 74   PageID 3263

App022
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 25 of 74   PageID 3264

App023
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 26 of 74   PageID 3265

App024
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 27 of 74   PageID 3266

App025
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 28 of 74   PageID 3267

App026
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 29 of 74   PageID 3268

App027
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 30 of 74   PageID 3269

Exhibit 4
App028
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 31 of 74   PageID 3270

1

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,

v.

LLOYD J. AUSTIN, III,
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.

Case No. 4:21-cv-01236-O

DECLARATION OF ANDREW SPARKS
[with regard to Navy SEAL 21]

I, Andrew Sparks, hereby state and declare as follows:

1.
I am a Commander in the United States Navy, currently serving as Commanding
Officer, SEAL Team FIVE, located in San Diego, California.  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 May 2021.  Prior to my current
assignment, I served as an unrestricted line officer throughout every level of command at
operational, deployed and shore-based commands within Naval Special Warfare and the U.S.
Special Operations Community.  As part of my duties as commanding officer, I am overall
App029
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2

responsible for all aspects of SEAL team operations including training, manning, equipping and
leading personnel ready to execute national tasking.
3.
 Navy SEAL 21 is presently assigned as member of the Operations Department at
SEAL Team FIVE. His duties include assisting the operations master chief in facilitating the day
to day operations at the command, to include scheduling and execution of training events for
certification of the SEAL Team during the inter-deployment training cycle. He also performs
associated administrative duties common to the function of any headquarters department within a
SEAL Team.
4.
In his declaration, Navy SEAL 21 alleges he has been kicked out of his platoon,
directed to return military equipment necessary for training, and reassigned to administrative
duties rather than permitted to participate in training. Navy SEAL 21 states that he will be unable
to deploy with his Team if he is not permitted to train with the Team. He further states he was
initially informed he was ineligible to take the January 2022 Chief Petty Officer exam, but was
ultimately permitted to take the exam. He alleges his exam included a statement that he is
ineligible to promote, and that he has not been permitted to see his performance evaluation from
last year. Finally, Navy SEAL 21 claims he and Navy SEAL 25 were directed to clean up trash
around the base.
5.
Navy SEAL 21 was removed from his platoon in October 2021, and has been
temporarily reassigned to the operations department within SEAL Team FIVE.  Navy SEAL 21’s
former platoon was and is currently in the midst of the inter-deployment training cycle.  The
majority of training events and evolutions require the platoon members to travel on temporary
duty assignment (TDY) out of the permanent duty station area.  Each time an unvaccinated
member is to travel outside the area, regardless of exemption status, current policy requires
App030
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3

Commander, U.S. SOCOM (Component Commander) to approve of the mission-critical nature
of having that person travel.1  Both the operational and mission readiness impact necessary to
mitigate COVID risk presented by unvaccinated individuals, in addition to the necessity to obtain
a four-star General Officer’s permission for each unvaccinated individual to travel, is
administratively burdensome and degrades operational readiness and mission accomplishment, in
addition to the risk that the unvaccinated individual will contract COVID-19 and potentially
transmit it to other team members.
6.
Navy policy permits the temporary reassignment of unvaccinated members,
regardless of exemption status, from their duties due to operational or mission readiness.  Prior to
the injunction issued in this case, this policy applied to Navy SEAL 21 and was implemented
accordingly. All SEAL servicemembers must be fully ready to operate in austere environments,
often without ready access to medical facilities, working in close quarters where social
distancing is not possible, and working in small teams where contraction of COVID-19 would
adversely impact training outcomes and overall mission readiness.  Navy SEAL 21 was
temporarily reassigned from an operational duty position and was required to conduct an
inventory of equipment he would normally be required to complete for a platoon readying itself
for overseas deployment.  None of these actions were taken because Navy SEAL 21 has
submitted a religious exemption request.  Rather, these assignment decisions were made because
Navy SEAL 21 is unvaccinated and his unvaccinated status prevents him from performing many
duties necessary for him to effectively train with his platoon for the platoon’s upcoming

1 Deputy Secretary of Defense Memorandum, Updated Coronavirus Disease 2019 Guidance Related to Travel and
Meetings (Sep. 24, 2021), provides that individuals who are not fully vaccinated, or who decline to provide
information about their vaccination status, are limited to mission-critical official travel, both domestic and
international. In accordance with Commander, U.S. Special Operations Command (CDRUSSOCOM) Fragmentary
Order 33 to Operation Order for Coronavirus Disease 2019 (Oct. 6, 2021), CDRUSSOCOM is the approval
authority for mission critical travel by individuals who are not fully vaccinated.
App031
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4

deployment.  Navy SEAL platoons train together for months prior to deployment.  This is
essential to building the cohesion within the unit that leads to an effective fighting force.  Having
a SEAL go in and out of the unit, or only available to attend certain training evolutions—for any
reason—undermines unit cohesion.   Accordingly, any SEAL who had similar restrictions on his
ability to train with his platoon for an upcoming deployment would have to be reassigned.
7.
The Command Career Counselor (CCC) was initially mistaken as to the
distinction between those unvaccinated personnel who were pending religious accommodation
adjudication and those refusing the vaccine without a pending exemption request. Navy SEAL
21 is correct in that he is not a “refuser” because, although unvaccinated, he is still pending a
final decision on his religious accommodation request pertaining to the COVID-19 vaccine.
However, the CCC took steps to gain clarification and obtained the correct guidance which
permitted Navy SEAL 21 to take the Chief Petty Officer’s Exam, as requested.
8.
Navy SEAL 21 asserts that when he returned from leave on January 24, 2022, he
learned that others (not himself) had been required to stand night watches and execute tasks
around the command.  The night watches that had been assigned to his shipmates were an
operational security and physical security requirement vital to the command at that time.
Specifically, the watch was directed to monitor weapons that were awaiting shipment to other
command members because a weapons pallet shipment did not make it onto a plane with the
corresponding platoon personnel to whom the weapons had been issued.  The weapons remained
at an airfield and the watch-standers were required to ensure accountability and custody of these
military weapons. This is a type of requirement that is routinely supported by the SEAL Team
headquarters staff, including operations department personnel, who are available to support
emergent operational or administrative requirements for platoons away on training assignments
App032
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5

or deployed.  Additionally, maintenance of SEAL Team buildings, facilities and equipment is an
all-hands responsibility.  Any member of the command, from junior to senior, is expected to be
accountable and take pride in the military smartness and cleanliness of our facilities.  Members
of the operations department, and any department personnel with time and availability, are
routinely tasked with cleaning and maintaining SEAL Team buildings and facilities.
9.
Regarding Navy SEAL 21’s evaluation report, he received a positive performance
evaluation across the board and his evaluation report was in no way adverse.  Per Bureau of
Naval Personnel Instruction 1610.10E, Navy Performance Evaluation System (Dec. 6, 2019), if
the Service member is not expected to return to or visit the command within 15 days and the
report is not adverse, the reporting senior may enter “Certified Copy Provided” in the member’s
signature block and submit the report to Navy Personnel Command. See BUPERSINST 1610.E
§14-4.a.  In this case, the reporting period ended on 15 November 2021.  Navy SEAL 21 was on
leave, weekend liberty, special liberty, and continually out of office for 15 days, from 12
November to 30 November 2021.  The report was forwarded to Navy Personnel Command on 8
January 2022.  Once properly uploaded by NPC it will be electronically available and accessible
to the member by utilizing Common Access Card log in at the Bureau of Naval Personnel Online
website (bol.navy.mil) under the Official Military Personnel File application.  A hard copy will
be immediately made available to him, along with a supervising member of his chain of
command to discuss any of questions he may have.

App033
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App034
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Exhibit 5
App035
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 38 of 74   PageID 3277

1

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,

v.

LLOYD J. AUSTIN, III,
in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, in
his official capacity as United States
Secretary of the Navy,
Defendants.

Case No. 4:21-cv-01236-O

DECLARATION OF LIEUTENANT COMMANDER FORREST S. CROWELL
[with regard to Navy SEAL 22]

I, Forrest S. Crowell, hereby state and declare as follows:

1.
I am a Lieutenant Commander in the United States Navy, currently serving as
Officer In Charge, Naval Special Warfare Group ONE, Training Detachment (TRADET),
located in San Diego, CA.  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 December 2021.  Prior to my
current assignment, I served as the Flag Aide to RADM Hugh Howard, Commander, Naval
Special Warfare Command. As part of my current duties, I am responsible to ensure Naval
App036
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2

Special Warfare Group ONE’s core Unit Level Training for west coast SEAL Teams is
conducted effectively, safely, and per the applicable instructions and the Commander’s training
guidance.
3.
 Navy SEAL 22 is presently assigned as Air Operations Chief Petty Officer. His
duties include training Naval Special Warfare troops in military free-fall Air Operations current
tactics, techniques, and procedures. Member is currently teleworking.
4.
In his declaration, Navy SEAL 22 alleges he was “supposed to transfer from a
training detachment to a SEAL Team for a milestone position as a platoon chief” in October
2021, and he claims that he has not been permitted to transfer due to his pending religious
accommodation. He states that since the preliminary injunction was issued he was removed from
the milestone position and not permitted to transfer to another command. Navy SEAL 22 states
this will have an impact on his career progression and promotion potential. He further states he
was not permitted to attend a training course with other members of his training cell.
5.
Navy SEAL 22’s orders to serve at SEAL Team SEVEN as a Platoon Leading
Chief Petty Officer were cancelled on October 21, 2021, in accordance with Navy guidance
allowing service member reassignments for operational readiness or mission requirements based
on unvaccinated status, regardless of exemption status. This determination was made before the
issuance of the preliminary injunction in this case. No subsequent actions have been taken
against SEAL 22 with regard to his transfer.  His pending religious accommodation has no
bearing on his eligibility to be reassigned, however, his vaccination status does.  This does not
preclude Navy SEAL 22’s ability to complete a career milestone tour in the future.
6.
The October 2021 decision to cancel Navy SEAL 22’s orders served operational
and mission readiness purposes. Because he is unvaccinated, he was not permitted to execute
App037
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3
orders to SEAL Team SEVEN, an operational and deploying sea duty command.  The
prospective position at SEAL Team SEVEN for Navy SEAL 22 involves responsibilities with a
SEAL platoon that was (and still is) in the midst of the inter-deployment training cycle.  The
majority of training events and evolutions require the platoon members to travel out of the
permanent duty station area.  Current policy requires Commander, U.S. Special Operations
Command (SOCOM), a four-star general responsible for the entire U.S. special operations
enterprise, to approve travel for unvaccinated personnel based on an assessment that the
individual’s travel is mission-critical to operations and cannot be conducted by anyone other than
the identified traveler.1 (Encl 1).  Both the operational impact and mission readiness
requirements necessary to mitigate COVID risk presented by unvaccinated individuals, in
addition to the necessity to obtain a four-star General Officer’s permission for each unvaccinated
individual to travel, is administratively burdensome and degrades operational readiness and
mission accomplishment, in addition to the risk that the unvaccinated individual will contract
COVID-19 and potentially transmit it to other team members.
7.
SEAL 22 also alleges that on January 28, 2022, he was told by his command that
he would not be permitted to attend a training course along with other members of his training
cell due to his pending RA request.  While the preliminary injunction prohibits the application of
NAVDMIN 225/21 and NADAMIN 256/21 to Navy SEAL 22, to include risk mitigation
measures within those policies (such as a prohibition on travel for unvaccinated personnel), there
are other policies which limit the authority for Navy SEAL 22 to perform official travel.
1 Deputy Secretary of Defense Memorandum, Updated Coronavirus Disease 2019 Guidance Related to Travel and
Meetings (Sep. 24, 2021), provides that individuals who are not fully vaccinated, or who decline to provide
information about their vaccination status, are limited to mission-critical official travel, both domestic and
international. In accordance with Commander, U.S. Special Operations Command (CDRUSSOCOM) Fragmentary
Order 33 to Operation Order for Coronavirus Disease 2019 (Oct. 6, 2021), CDRUSSOCOM is the approval
authority for mission critical travel by individuals who are not fully vaccinated.
App038
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App039
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Crowell Declaration
Exhibit 1
App040
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App041
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App042
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App043
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App044
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App045
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App046
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App047
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 50 of 74   PageID 3289

App048
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 51 of 74   PageID 3290

App049
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 52 of 74   PageID 3291

Exhibit 6
App050
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 53 of 74   PageID 3292
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 53 of 74   PageID 3292

App051
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 54 of 74   PageID 3293
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 54 of 74   PageID 3293

App052
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 55 of 74   PageID 3294
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 55 of 74   PageID 3294

App053
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 56 of 74   PageID 3295
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 56 of 74   PageID 3295

App054
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 57 of 74   PageID 3296
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 57 of 74   PageID 3296

App055
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 58 of 74   PageID 3297
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 58 of 74   PageID 3297

App056
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 59 of 74   PageID 3298
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 59 of 74   PageID 3298

Exhibit 7
App057
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 60 of 74   PageID 3299
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 60 of 74   PageID 3299

1

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,

v.

LLOYD J. AUSTIN, III,
in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, in
his official capacity as United States
Secretary of the Navy,
Defendants.

Case No. 4:21-cv-01236-O

DECLARATION OF MATTHEW WILLIAMS
[with regard to Navy Diver 2]

I, Matthew T. Williams, hereby state and declare as follows:

1.
I am a Commander in the United States Navy, currently serving as Commanding
Officer, Naval Construction Training Center (NCTC) Gulfport, located in Gulfport, Mississippi.
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 July 2020.  NCTC’s mission is
to provide preliminary construction-related apprentice and journeyman level training to Sailors
designated in one of the seven Seabee rates, as well as Soldiers and Airmen in related
engineering communities. NCTC also serves as the administrative and training support
App058
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 61 of 74   PageID 3300

2

organization for students enrolled in Expeditionary Combat Skills (ECS) course at the Center for
Security Forces (CSF) learning site Gulfport, MS.  As the Commanding Officer, I am
responsible for all matters including personnel issues, logistics, day-to-day essential command
functions and the effective administration of NCTC. Navy Diver 2 is a recent graduate of the
ECS course and a Sailor under my command. He is presently assigned to ECS Supply. His duties
include general administrative and maintenance functions within the supply department.
3.
In his declaration, Navy Diver 2 states that his Permanent Change of Station
(PCS) orders were delayed in September 2021. He states that since the issuance of the
preliminary injunction, nothing has changed and he has remained at his present assignment. And
that he may lose his special pays as a result of not performing his diving duties. Navy Diver 2
claims he is not permitted to leave the installation due to his pending religious accommodation.
Finally, Navy Diver 2 alleges that, after completing a 14-day quarantine following his return
from leave after the Christmas holiday period, he is now required to provide weekly COVID-19
tests.
4.
Navy Diver 2 graduated the Expeditionary Combat Skills (ECS) training course
on September 24, 2021. Prior to his scheduled transfer, Navy Diver 2 indicated that he would
refuse the vaccine or seek an exemption. The chain of command advised him of his rights to
submit a medical exemption or religious exemption request. In accordance with Naval Education
Training Command directive, Navy Diver 2 was then placed on “Temporary Duty for Training
Delay” until his request could be submitted and adjudicated.1 Since then, he has received three

1 In his declaration, Navy Diver 2 states, “[t]he orders were taken from me and have not been returned so that I can
get them stamped.” When a Service member transfers to a new duty station, a copy of his or her orders is stamped to
record when the Service member checked out of the command, which is relevant for administrative purposes (e.g.,
pay and leave accounting, performance reports, etc.). In this case, because Navy Diver 2 was not permitted to check
out, the copy of his orders was not returned to him and have since been modified with a new report date.
App059
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 62 of 74   PageID 3301

3

orders modifications (ORDMOD), which extended his assignment to the Center for Security
Forces ECS Learning Site, but preserved his orders to SEAL Delivery Vehicle Team ONE
(SDVT-1) in Pearl Harbor, Hawaii. While one of these extensions occurred after the preliminary
injunction, an ORDMOD is not an adverse action and his orders currently state that he is to
report to SDVT-1 no later than April 1, 2022.
5.
Regarding his special pay for dive duty, once Navy Diver 2’s qualifications lapse,
he will lose eligibility for his special pay. However, my command is doing what we can to
resolve this issue, and we are working to arrange for Navy Diver 2 to complete a qualifying dive
while this litigation continues.
6.
Though he completed the course, Navy Diver 2 remains subject to the standard
leave and liberty policy applicable to all accessions students.  All accessions-level ECS students
are eligible for off-base liberty within a 20-mile radius of Naval Construction Battalion Center.
Any request for liberty outside of 20-miles must be pre-approved in writing by the chain of
command. Again, this policy applies to all accessions-level ECS students, not just Navy Diver 2.
Further, any additional restrictions in addition to those in the standard leave and liberty policy
would be due to his vaccination status (i.e., unvaccinated) and not his request for a religious
accommodation, which has no bearing on the leave or liberty policy.
7.
Navy Diver 2 is not restricted to base. Navy Diver 2 took 29 days leave from
October 14, 2021, to November 11, 2021. See Exhibit A. He took another 18 Days leave from
December 17, 2021, to January 3, 2022. See Exhibit B. After each period of leave, Navy Diver 2
was required to complete a mandatory 14-day quarantine period.2 Thus, following his return

2 This quarantine is generally referred to as restriction of movement (“ROM).” ROM refers to limiting personal
interaction to reduce risk to a broader population.  Personnel executing ROM as directed by their command remain
in a duty status are not charged leave. While in ROM, personnel are generally required to confine themselves to their
rooms, avoid congregate settings, and/or limit close contact with people and pets or other animals to the greatest
App060
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 63 of 74   PageID 3302

4

from leave in November, Navy Diver 2 was required to quarantine until November 25, 2021, and
after his leave over the Christmas and New Year holidays, he was required to quarantine until
January 17, 2022. Upon completion of his quarantine, Navy Diver 2 left the base on numerous
occasions without restriction, in accordance with the leave and liberty policy. When a service
member enters the installation, base security scans that service member’s identification card, and
an electronic record is created.  An audit of the record (Person Scan History Report), attached as
Exhibit C, shows Navy Diver 2 left and re-entered the installation 12 times between 3 to 25
January.
8.
Finally, NAVADMIN 268/21, a policy which is not subject to the court’s
preliminary injunction, provides that “unvaccinated service members will be subject to screening
testing for COVID-19 at least weekly when entering a DoD facility that includes the service
members normal place of work.” ¶ 3a. This policy was implemented at NCTC on January 18,
2022, and it applies to all unvaccinated personnel, including Navy Diver 2, regardless of their
reason for being unvaccinated. The testing requirement is facility-specific, and the requirement
to test applies to each facility or work space entered. Thus, a Service member must provide a
negative result from a test performed within the preceding 72 hours prior to entering the specific
Navy facility or work space. NAVADMIN 268/21 ¶ 3.b. Navy Diver 2 remains free to visit
facilities on the installation to which he is authorized access, provided he complies with the
testing requirement for unvaccinated personnel.

extent possible. Personnel assigned ROM may exit quarters to access laundry facilities, safety, medical emergency
and designated smoking areas; and conduct other essential tasks (i.e., solitary physical fitness, smoking not in a
group setting, no-touch food delivery, etc.) not in a public setting, provided they maintain social distancing greater
than 6 feet from others.
App061
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 64 of 74   PageID 3303

App062
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 65 of 74   PageID 3304
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 65 of 74   PageID 3304

Williams Declaration
Exhibit A
App063
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 66 of 74   PageID 3305

App064
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 67 of 74   PageID 3306
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 67 of 74   PageID 3306

IMPORTANT NOTICE!! THIS IS YOUR “OFFICIAL” LEAVE AUTHORIZATION, DO NOT DESTROY OR LOSE!

1. Leave is granted subject to immediate recall, therefore maintain communication with your leave address. Keep this leave authorization in your posession at all
times. In the event of a general recall, individual orders may not be issued. Inform your commanding officer of permanent change of leave address.

2. Save sufficient money or obtain round-trip ticket to insure you have return transportation. Keep yourself informaed of transportation schedules and weather
conditions through your return route and make sufficient allowances for normal delays.

3. While it is desirable to tell the public about your Navy, do not discuss any subject unless you are certain it is unclassified. If you are asked to participate in a press
conference, ta k to reporters, or speak over the radio or television on matters pertaining to naval service, and you are not certain that all your remarks are
unclassified, consult with and obtain guidance of the commanding officer of the nearest naval unit prior to participation.

4. Cooperate with Military or Air Police, Shore Patrol, and civil authorities at all times. You are subject to orders of your superior officers in all branches of the U.S.
Armed Forces. Be an outstanding Navy ambassador at all times.

5. If necessary to request an extension of leave, communicate with your commanding officer. SINCE YOU NEED POSITIVE APPROVAL FOR REMAINING
ABSENT BEYOND THE TIME ORIGINALLY AUTHORIZED, IF NO REPLY IS RECEIVED YOU MUST CONSIDER YOUR REQUEST NOT APPROVED.

6. In case of serious illness or injury incured while on leave which requires medical attention or hospitalization, report facts to your commanding officer. If in the
immediate vicinity of a naval activity, such as recruiting station or naval station, advise them of your condition and status. You are advised that costs incident to
hospitalization or medical treatment received at other than Federal medical activities (Army, Air Force, Public Health Service, or Veteran’s Administration) may be
defrayed by the Navy Department in EMERGENCY cases only.

7. In the event that conditions beyond your control indicate late return to the command to which you are ordered to report, obtain written evidence from transportation
agency or others (physician, military or civil police, recruiting station, etc.) for consideration by your commanding officer.

8. Request leave sufficiently in advance to allow processing via official channels. Leave is computed as follows: The day of departure on leave, shall be counted as a
day of duty, except when leave commences prior to the end of the normal workday; the day of return from leave shall be counted as a day of leave, except when
such return is made at or before commencement of your normal workday in which case it shall be counted as a day of duty.

9. If Emergency Care (Life Threatening Conditions) is needed, get care IMMEDIATELY then dial 1-800-# within 24 hours for the region where the member
is enrolled. All other care must first be authorized by the region in which the member is enrolled.

OPERATION DRIVESAFE REMINDER

Statistics show the major causes of motor vehicle
accidents are attributable to:
Excessive speed
Intoxicating liquor, and
Driving while fatigued or sleepy.

PLAN YOUR TRIP CAREFULLY. Be sure you allow yourself sufficient travel time and keep your travel to a minimum during hours of darkness.

PRIVACY ACT STATEMENT
FOR
NAVCOMPT 3065 LEAVE REQUEST/AUTHORIZATION

This statement is provided in compliance with the provisions of the Privacy Act of 1974 (PL 93-579), which require that Federal
agencies must inform individuals who are requested to furnish information about themselves as to the following facts concerning
the information requested.

1. AUTHORITY: Title 10 and 37 USC

2. PRINCIPAL PURPOSE(S): To authorize military leave of absence.

3. ROURTINE USE(S): To deduct leave taken from member’s accrued leave balances. To pay leave rations to enlisted members.

4. MANDATORY OR VOLUNTARY DISCLOSURE: VOLUNTARY. If the member does not request a specific period of leave or
furnish his leave address, leave is not granted.
App065
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 68 of 74   PageID 3307
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 68 of 74   PageID 3307

Williams Declaration
Exhibit B
App066
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 69 of 74   PageID 3308
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 69 of 74   PageID 3308

App067
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 70 of 74   PageID 3309
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 70 of 74   PageID 3309

IMPORTANT NOTICE!! THIS IS YOUR “OFFICIAL” LEAVE AUTHORIZATION, DO NOT DESTROY OR LOSE!

1. Leave is granted subject to immediate recall, therefore maintain communication with your leave address. Keep this leave authorization in your posession at all
times. In the event of a general recall, individual orders may not be issued. Inform your commanding officer of permanent change of leave address.

2. Save sufficient money or obtain round-trip ticket to insure you have return transportation. Keep yourself informaed of transportation schedules and weather
conditions through your return route and make sufficient allowances for normal delays.

3. While it is desirable to tell the public about your Navy, do not discuss any subject unless you are certain it is unclassified. If you are asked to participate in a press
conference, ta k to reporters, or speak over the radio or television on matters pertaining to naval service, and you are not certain that all your remarks are
unclassified, consult with and obtain guidance of the commanding officer of the nearest naval unit prior to participation.

4. Cooperate with Military or Air Police, Shore Patrol, and civil authorities at all times. You are subject to orders of your superior officers in all branches of the U.S.
Armed Forces. Be an outstanding Navy ambassador at all times.

5. If necessary to request an extension of leave, communicate with your commanding officer. SINCE YOU NEED POSITIVE APPROVAL FOR REMAINING
ABSENT BEYOND THE TIME ORIGINALLY AUTHORIZED, IF NO REPLY IS RECEIVED YOU MUST CONSIDER YOUR REQUEST NOT APPROVED.

6. In case of serious illness or injury incured while on leave which requires medical attention or hospitalization, report facts to your commanding officer. If in the
immediate vicinity of a naval activity, such as recruiting station or naval station, advise them of your condition and status. You are advised that costs incident to
hospitalization or medical treatment received at other than Federal medical activities (Army, Air Force, Public Health Service, or Veteran’s Administration) may be
defrayed by the Navy Department in EMERGENCY cases only.

7. In the event that conditions beyond your control indicate late return to the command to which you are ordered to report, obtain written evidence from transportation
agency or others (physician, military or civil police, recruiting station, etc.) for consideration by your commanding officer.

8. Request leave sufficiently in advance to allow processing via official channels. Leave is computed as follows: The day of departure on leave, shall be counted as a
day of duty, except when leave commences prior to the end of the normal workday; the day of return from leave shall be counted as a day of leave, except when
such return is made at or before commencement of your normal workday in which case it shall be counted as a day of duty.

9. If Emergency Care (Life Threatening Conditions) is needed, get care IMMEDIATELY then dial 1-800-# within 24 hours for the region where the member
is enrolled. All other care must first be authorized by the region in which the member is enrolled.

OPERATION DRIVESAFE REMINDER

Statistics show the major causes of motor vehicle
accidents are attributable to:
Excessive speed
Intoxicating liquor, and
Driving while fatigued or sleepy.

PLAN YOUR TRIP CAREFULLY. Be sure you allow yourself sufficient travel time and keep your travel to a minimum during hours of darkness.

PRIVACY ACT STATEMENT
FOR
NAVCOMPT 3065 LEAVE REQUEST/AUTHORIZATION

This statement is provided in compliance with the provisions of the Privacy Act of 1974 (PL 93-579), which require that Federal
agencies must inform individuals who are requested to furnish information about themselves as to the following facts concerning
the information requested.

1. AUTHORITY: Title 10 and 37 USC

2. PRINCIPAL PURPOSE(S): To authorize military leave of absence.

3. ROURTINE USE(S): To deduct leave taken from member’s accrued leave balances. To pay leave rations to enlisted members.

4. MANDATORY OR VOLUNTARY DISCLOSURE: VOLUNTARY. If the member does not request a specific period of leave or
furnish his leave address, leave is not granted.
App068
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Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 71 of 74   PageID 3310

Williams Declaration
Exhibit C
App069
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 72 of 74   PageID 3311
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 72 of 74   PageID 3311

App070
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 73 of 74   PageID 3312
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 73 of 74   PageID 3312

Person Scan History Report
177799: CBC GULFPORT | 01 Jan 2022 00:00:00 UTC - 01 Feb 2022 23:59:59 UTC
All Access Areas | Any Direction | All Access Recommendations | All Access Decisions
Prepared by: Roberts, Warren
Generated: 01 Feb 2022 18:34:27 UTC
App071
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 74 of 74   PageID 3313
Case 4:21-cv-01236-O   Document 111   Filed 02/07/22    Page 74 of 74   PageID 3313

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