Complaint - U.S. NAVY DIVERS 1-3, Plaintiffs, v. JOSEPH R. BIDEN, JR., in his official capacity as President of the United States of America (2021-11-24)
- Date
- 2021-11-24
Summary
A Motion for Preliminary Injunction filed November 24, 2021 as Document 15 in U.S. Navy SEALs 1-26, et al. v. Joseph R. Biden, Jr., et al., Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division. The plaintiffs, identified by pseudonym as Navy SEALs, Special Warfare Combatant Craft Crewmen, an Explosive Ordnance Disposal Technician and Navy Divers, move under Federal Rule of Civil Procedure 65 for an injunction against the defendants' COVID-19 vaccine mandate. The motion asks the court to bar application of MANMED Article 15- 105(n)(9), NAVADMIN 225/21, Trident Order #12 and NAVADMIN 256/21, to bar across-the-board denial of religious accommodation requests, and to bar adverse action against the plaintiffs. It also asks for a waiver of the Rule 65(c) bond, and it closes with a certificate of conference and a certificate of service.
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Case 4:21-cv-01236-O Document 15 Filed 11/24/21 Page 1 of 6 PageID 170
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
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.
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs 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 (“the
SEALs”), by and through counsel, and pursuant to Federal Rule of Civil Procedure 65, respectfully
move this Court for a preliminary injunction against Defendants’ vaccine mandate.
In support of this Motion, the SEALs rely on the following:
1. The Brief in support of this Motion, filed contemporaneously herewith;
2. The Appendix in support of this Motion, filed contemporaneously herewith;
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Case 4:21-cv-01236-O Document 15 Filed 11/24/21 Page 2 of 6 PageID 171
3. The Complaint, ECF No. 1; and
4. All further evidence necessary to support this Motion, filed hereafter or presented
at any hearing on this Motion.
The SEALs respectfully request the following relief:
1. A preliminary injunction against Defendants and their agents, servants, employees,
attorneys, and all persons and entities directly or indirectly in active concert or participation with
them that prohibits them from applying their facially discriminatory policies:
a. Manual of the Medical Department of the U.S. Navy (MANMED), Article 15-
105(n)(9);
b. NAVADMIN 225/21, “COVID-19 Consolidated Disposition Authority” (Oct.
13, 2021);
c. Trident Order #12, “Mandatory Vaccination for COVID-19” (Sept. 24, 2021);
and
d. NAVADMIN 256/21, “CCDA Guidance to Commanders” (Nov. 15, 2021).
2. A preliminary injunction against Defendants and their agents, servants, employees,
attorneys, and all persons and entities directly or indirectly in active concert or participation with
them that prohibits them from applying their practice of:
a. across-the-board denial of religious accommodation requests for COVID-19
vaccination;
b. differential treatment of accommodation requests for the COVID-19
vaccination for secular reasons and accommodation requests for religious
reasons; and
2
Case 4:21-cv-01236-O Document 15 Filed 11/24/21 Page 3 of 6 PageID 172
c. retributive or negative action against servicemembers who make or have made
religious accommodation requests; and
3. A preliminary injunction against Defendants and their agents, servants, employees,
attorneys, and all persons and entities directly or indirectly in active concert or participation with
them that prohibits them from making Plaintiffs’ non-receipt of COVID-19 vaccination or
Plaintiffs’ submission of a request for a religious accommodation from COVID-19 vaccination a
basis for any adverse action against Plaintiffs, including, but not limited to: separation from
service; loss of special warfare device; change in job title or duties; recoupment of education or
training expenses; determination of medical disqualification or non-deployability; loss or delay of
promotion, training opportunities, or retirement; and loss of bonuses, pay, or benefits.
The SEALs request a waiver of any bond required by Federal Rule of Civil Procedure 65(c)
as these issues involve the free exercise of religion, there is no money at stake in issuance of the
injunction, and no financial impact on the Defendants. See Kaepa, Inc. v. Achilles Corp., 76 F.3d
624, 628 (5th Cir. 1996) (recognizing district courts have discretion to waive the bond requirement
of Rule 65(c)); see also Gordon v. City of Hous., 79 F. Supp. 3d 676, 695 (S.D. Tex. 2015) (waiving
Rule 65 bond in First Amendment lawsuit).
WHEREFORE, the SEALs respectfully request that the Court grant this Motion for
Preliminary Injunction against the Defendants.
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Case 4:21-cv-01236-O Document 15 Filed 11/24/21 Page 4 of 6 PageID 173
Respectfully submitted this 24th day of November, 2021.
KELLY J. SHACKELFORD /s/ Heather Gebelin Hacker
Texas Bar No. 18070950 HEATHER GEBELIN HACKER
JEFFREY C. MATEER Texas Bar No. 24103325
Texas Bar No. 13185320 ANDREW B. STEPHENS
HIRAM S. SASSER, III Texas Bar No. 24079396
Texas Bar No. 24039157 HACKER STEPHENS LLP
DAVID J. HACKER 108 Wild Basin Road South, Suite 250
Texas Bar No. 24103323 Austin, Texas 78746
MICHAEL D. BERRY Tel.: (512) 399-3022
Texas Bar No. 24085835 heather@hackerstephens.com
JUSTIN BUTTERFIELD andrew@hackerstephens.com
Texas Bar No. 24062642
ROGER BYRON Attorneys for Plaintiffs
Texas Bar No. 24062643
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600
Plano, Texas 75075
Tel: (972) 941-4444
jmateer@firstliberty.org
hsasser@firstliberty.org
dhacker@firstliberty.org
mberry@firstliberty.org
jbutterfield@firstliberty.org
rbyron@firstliberty.org
JORDAN E. PRATT
Florida Bar No. 100958* **
FIRST LIBERTY INSTITUTE
227 Pennsylvania Ave., SE
Washington, DC 20003
Tel: (972) 941-4444
jpratt@firstliberty.org
*Application for admission pro hac vice
pending
** Not yet admitted to the D.C. Bar, but
admitted to practice law in Florida. Practicing
law in D.C. pursuant to D.C. Court of
Appeals Rule 49(c)(8) under the supervision
of an attorney admitted to the D.C. Bar.
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Case 4:21-cv-01236-O Document 15 Filed 11/24/21 Page 5 of 6 PageID 174
CERTIFICATE OF CONFERENCE
Plaintiffs’ counsel were unable to conference this Motion with Defendants’ counsel
because no counsel has appeared for Defendants. However, once counsel for Defendants file
appearances, Plaintiffs’ counsel will confer with them.
/s/Heather Gebelin Hacker
HEATHER GEBELIN HACKER
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Case 4:21-cv-01236-O Document 15 Filed 11/24/21 Page 6 of 6 PageID 175
CERTIFICATE OF SERVICE
I hereby certify that on November 24, 2021, I electronically filed the foregoing document
through the Court’s ECF system and will serve a copy on each of the Defendants according to the
Federal Rules of Civil Procedure.
/s/Heather Gebelin Hacker
HEATHER GEBELIN HACKER
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