Official Capacity Defendants' Opposition to Motion for a Preliminary Injunction — Navy SEALs 1-26 v. Biden

Summary

The official capacity defendants' opposition to the plaintiffs' motion for a preliminary injunction in Navy SEALs 1-26 v. Joseph R. Biden, Jr., Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, filed 12/10/21 as Document 43, 53 pages. The plaintiffs, 35 service members in the Naval Special Warfare community who claim religious objections to the COVID-19 vaccination, seek an order enjoining its addition to the inoculations required of all members of the Navy and keeping them in their special warfare billets. The government argues that the court lacks jurisdiction to enter relief against the President, that the plaintiffs have not exhausted military remedies, that claims about duty assignments and deployment are non-justiciable, and that their First Amendment and RFRA claims are unlikely to succeed. It also argues they face no irreparable harm.

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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

OFFICIAL CAPACITY DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 3
I.
The COVID-19 Pandemic ..............................................................................................3
II.
Department of Defense COVID-19 Vaccine Directive .................................................3
III.
The Navy’s Implementation of DoD’s Vaccine Directive ............................................5
A.
Navy Policies Applicable to All Navy Service Members ........................................5
B.
Navy Special Warfare Community ..........................................................................6
C.
Navy Policies Applicable to Members of the Navy Special Warfare Community..7
IV.
Procedural History .........................................................................................................8
LEGAL STANDARDS .................................................................................................................. 9
ARGUMENT ................................................................................................................................ 10
I.
Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims. .............................10
A.
The Court Lacks Jurisdiction to Enter Relief Against the President. ....................10
B.
Plaintiffs Have Not Exhausted Military Remedies. ...............................................11
C.
Plaintiffs’ Claims Pertaining to Their Duty Assignments, Deployment, and
Medical Qualifications Are Non-Justiciable. .........................................................15
D.
Plaintiffs’ First Amendment and RFRA Claims Are Unlikely to Succeed. ..........19
II.
Plaintiffs Do Not Face Irreparable Harm. ....................................................................30
III.
The Equities and the Public Interest Weigh Against a Preliminary Injunction. ..........35
IV.
Any Relief Should Be Narrowly Tailored. ..................................................................40
CONCLUSION ............................................................................................................................. 40

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TABLE OF AUTHORITIES
Cases
10 Ring Precision Inc. v. Jones,
722 F.3d 711 (5th Cir. 2013) .................................................................................................... 20

303 Creating LLC v. Elenis,
6 F.4th 1160 (10th Cir. 2021) ................................................................................................... 28

Ali v. Stephens,
822 F.3d 776 (5th Cir. 2016) .................................................................................................... 24

Allied Mktg. Grp., Inc. v. CDL Mktg., Inc.,
878 F.2d 806 (5th Cir. 1989) ...................................................................................................... 9

Anderson v. Jackson,
556 F.3d 351 (5th Cir. 2009) ...................................................................................................... 9

Antonellis v. United States,
723 F.3d 1328 (Fed. Cir. 2013)................................................................................................. 17

Bois v. Marsh,
801 F.2d 462 (D.C. Cir. 1986) ............................................................................................ 33, 39

Bowen v. Roy,
476 U.S. 693 (1986) .................................................................................................................. 30

Brown v. Smith,
24 Cal. App. 5th 1135 (2018) ................................................................................................... 22

Bryant v. Gates,
532 F.3d 888 (D.C. Cir. 2008) .................................................................................................. 30

BST Holdings, LLC v. Occupational Health & Safety Administration,
17 F.4th 604 (5th Cir. 2021) ............................................................................................... 34, 35

Burson v. Freeman,
504 U.S. 191 (1992) .................................................................................................................. 22

Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ............................................................................................................ 20, 22

Bynum v. FMC Corp.,
770 F.2d 556 (5th Cir. 1985) .................................................................................................... 12

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iii

Chacon v. Granata,
515 F.2d 922 (5th Cir. 1975) .................................................................................................... 32

Chappell v. Wallace,
462 U.S. 296 (1983) ...................................................................................................... 15, 18, 39

Chilcott v. Orr,
747 F.2d 29 (1st Cir. 1984) ................................................................................................. 33, 39

Church v. Biden,
2021 WL 5179215 (D.D.C. Nov. 8, 2021) ........................................................................ passim

Connecticut v. Massachusetts,
282 U.S. 660 (1931) .................................................................................................................. 20

Contech Casting, LLC v. ZF Steering Sys., LLC,
931 F. Supp. 2d 809 (E.D. Mich. 2013) .................................................................................... 31

Cutter v. Wilkinson,
544 U.S. 722 (2005) .................................................................................................................. 21

D.J. v. Mercer Cnty. Bd. of Educ.,
No. 13-0237, 2013 WL 6152363 (W.Va. Nov. 22, 2013) ........................................................ 22

Daniels Health Scis., LLC v. Vascular Health Scis., LLC,
710 F.3d 579 (5th Cir. 2013) .................................................................................................... 30

Diraffael v. Cal. Mil. Dep’t,
2011 WL 13274364 (C.D. Cal. Mar. 21, 2011) ........................................................................ 15

Doe v. Austin,
2021 WL 5816632 (N.D. Fla. Nov. 12, 2021) ............................................................................ 2

Does 1-6 v. Mills,
16 F.4th 20 (1st Cir. 2021) .......................................................................................................... 2

Employment Division, Department of Human Resources of Oregon v. Smith,
494 U.S. 872 (1990) .................................................................................................................. 29

Farmer v. Mabus,
940 F.2d 921 (5th Cir. 1991) .................................................................................................... 10

F.F. on behalf of Y.F. v. New York,
65 Misc. 3d 616 (N.Y. Sup. Ct. 2019) ...................................................................................... 22

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Florida v. HHS,
2021 WL 5768796 (11th Cir. Dec. 6, 2021) ............................................................................. 40

Foley v. Biden,
No. 4:21-cv-01098-O (N.D. Tex. Oct. 6, 2021) ....................................................................... 10

Franklin v. Massachusetts,
505 U.S. 788 (1992) .................................................................................................................. 11

Garland v. N.Y.C. Fire Dep’t,
2021 WL 5771687 (E.D.N.Y. Dec. 6, 2021) ...................................................................... 32, 38

Gill v. Whitford,
138 S. Ct. 1916 (2018) .............................................................................................................. 40

Gilligan v. Morgan,
413 U.S. 1 (1973) ........................................................................................................................ 9

Goldman v. Weinberger,
475 U.S. 503 (1986) ............................................................................................................ 21, 29

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) .................................................................................................................. 20

Grutter v. Bollinger,
539 U.S. 306 (2003) .................................................................................................................. 21

Guerra v. Scruggs,
942 F.2d 270 (4th Cir. 1991) ........................................................................................ 17, 33, 39

Guitard v. Sec’y of Navy,
967 F.2d 737 (2d Cir. 1992)...................................................................................................... 33

Hall v. McHugh,
2010 WL 596499 n.4 (S.D. Ga. Feb. 17, 2010) ........................................................................ 34

Harkness v. Sec’y of Navy,
858 F.3d 437 (6th Cir. 2017) ........................................................................................ 16, 17, 38

Hartikka v. United States,
754 F.2d 1516 (9th Cir. 1985) .................................................................................................. 33

Hodges v. Callaway,
499 F.2d 417 (5th Cir. 1974) ........................................................................................ 13, 14, 15

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Holland Am. Ins. Co. v. Succession of Roy,
777 F.2d 992 (5th Cir. 1985) .............................................................................................. 30, 32

Janvey v. Alguire,
647 F.3d 585 (5th Cir. 2011) .................................................................................................... 30

Johnson v. Reed,
609 F.2d 784 (5th Cir. 1980) .................................................................................................... 16

Kane v. De Blasio,
--- F.4th ---, 2021 WL 5549404 (2d Cir. Nov. 28, 2021) ......................................................... 28

Lawrence v. McCarthy,
344 F.3d 467 (5th Cir. 2003) .................................................................................................... 15

Layman v. Harvey,
2007 WL 430678 (M.D. Fla. Feb. 5, 2007) .............................................................................. 18

Lebron v. Rumsfeld,
670 F.3d 540 (4th Cir. 2012) .................................................................................................... 21

Love v. State Dep’t of Educ.,
29 Cal. App. 5th 980 (2018) ..................................................................................................... 22

Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) .................................................................................................................. 40

Maier v. Orr,
754 F.2d 973 (Fed. Cir. 1985)................................................................................................... 18

Mass. Correction Officers Federated Union v. Baker,
2021 WL 4822154 (D. Mass. Oct. 15, 2021)...................................................................... 38, 39

Mazares v. Dep’t of Navy,
302 F.3d 1382 (Fed. Cir. 2002)........................................................................................... 10, 18

Mazurek v. Armstrong,
520 U.S. 968 (1997) .................................................................................................................... 9

McCurdy v. Zuckert,
359 F.2d 491 (5th Cir. 1966) .............................................................................................. 33, 35

Meister v. Tex. Adjutant General’s Dep’t,
233 F.3d 332 (5th Cir. 2000) .............................................................................................. 12, 16

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Mier v. Owens,
57 F.3d 747 (9th Cir. 1995) ...................................................................................................... 16

Miller v. United States,
42 F.3d 297 (5th Cir. 1995) ...................................................................................................... 18

Mindes v. Seaman,
453 F.2d 197 (5th Cir. 1971) ........................................................................................ 12, 16, 18

Miss. Power & Light Co. v. United Gas Pipe Line Co.,
760 F.2d 618 (5th Cir. 1985) ...................................................................................................... 9

Navy SEAL 1 v. Biden,
2021 WL 5448970 (M.D. Fla. Nov. 22, 2021) ..................................................................... 2, 11

Newdow v. Roberts,
603 F.3d 1002 (D.C. Cir. 2010) ................................................................................................ 11

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,
 833 F.2d 583 (5th Cir. 1987)………………………………………………………………….12

Nianga v. Wolfe,
435 F. Supp. 3d 739 (N.D. Tex. 2020) ..................................................................................... 10

Nken v. Holder,
556 U.S. 418 (2009) ............................................................................................................ 30, 35

Orloff v. Willoughby,
345 U.S. 83 (1953) ........................................................................................................ 16, 30, 39

Pelekai v. Hawaii,
2021 WL 4944804 (D. Haw. Oct. 22, 2021) ............................................................................ 32

Pullins v. West,
3 F.3d 56 (table), No. 93-3355, 1994 WL 447268 (7th Cir. Aug. 19, 1994) ............................ 14

Reaves v. Ainsworth,
219 U.S. 296 (1911) .................................................................................................................. 18

Reinhard v. Johnson,
209 F. Supp. 3d 207 (D.D.C. 2016) .................................................................................... 33, 39

Robert v. Austin,
No. 1:21-cv-02228-RM (D. Colo. Sept. 1, 2021) ....................................................................... 2

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Roman Cath. Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) ............................................................................................................ 21, 40

Rostker v. Goldberg,
453 U.S. 57 (1981) .................................................................................................................... 10

Rydie v. Biden,
2021 WL 5416545 (D. Md. Nov. 19, 2021) ............................................................................. 40

Sampson v. Murray,
415 U.S. 61 (1974) .................................................................................................................... 30

Schlanger v. United States,
586 F.2d 667 (9th Cir. 1978) .................................................................................................... 17

Sebra v. Neville,
801 F.2d 1135 (9th Cir. 1986) .................................................................................................. 18

Schlesinger v. Councilman,
420 U.S. 738 (1975) .................................................................................................................. 34

Shaw v. Austin,
2021 WL 1840397 (D.D.C. May 1, 2021) ......................................................................... passim

Sims v. Fox,
505 F.2d 857 (5th Cir. 1974) .................................................................................................... 35

Smith v. Biden,
2021 WL 5195688 (D.N.J. Nov. 8, 2021) ................................................................................ 11

Solorio v. United States,
483 U.S. 435 (1987) .................................................................................................................. 10

Spokeo, Inc. v. Robins,
578 U.S. 330 (2016) .................................................................................................................. 11

Standage v. Braithwaite,
526 F. Supp. 3d 56 (D. Md. 2021) ............................................................................................ 15

Tellabs, Inc. v. Makor Issues & Rts., Ltd.,
551 U.S. 308 (2007) .................................................................................................................... 3

Texas v. Biden,
10 F.4th 538 (5th Cir. 2021) ..................................................................................................... 31

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Texas v. United States,
523 U.S. 296 (1998) .................................................................................................................. 13

Thomas v. Union Carbide Agric. Prods. Co.,
473 U.S. 568 (1985) .................................................................................................................. 13

Tigges v. Northam,
473 F. Supp. 3d 559 (E.D. Va. 2020) ....................................................................................... 40

Trump v. Hawaii,
138 S. Ct. 2392 (2018) ........................................................................................................ 29, 40

U.S. ex rel. New v. Perry,
1996 WL 420175 (D.D.C. Jan. 16, 1996) ................................................................................. 34

U.S. Postal Serv. v. Gregory,
534 U.S. 1 (2001) ................................................................................................................ 20, 23

United States v. Kisala,
64 M.J. 50 (C.A.A.F. 2006) ...................................................................................................... 14

United States v. O’Brien,
391 U.S. 367 (1968) .................................................................................................................. 21

United States v. Shearer,
473 U.S. 52 (1985) .................................................................................................................... 18

Valdez v. Grisham,
 2021 WL 4145746, at *8 (D.N.M. Sept. 13, 2021) ................................................................. 28

Vaughan v. Ky. Army Nat’l Guard,
2013 WL 211075 (E.D. Ky. Jan. 18, 2013) .............................................................................. 15

Voge v. United States,
844 F.2d 776 (Fed. Cir. 1988)................................................................................................... 16

Volk v. United States,
111 Fed. Cl. 313 (2013) ............................................................................................................ 33

Von Hoffburg v. Alexander,
615 F.2d 633 (5th Cir. 1980) .............................................................................................. 10, 13

Walker v. United States,
93-cv-2728, 1994 U.S. Dist. LEXIS 16550, (E.D. La. Nov. 15, 1994) .................................... 14

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Walker v. United States,
1998 WL 637360 (E.D. La. Sept. 16, 1998), aff’d, 184 F.3d 816 (5th Cir. 1999) ................... 35

Waters v. Schlesinger,
366 F. Supp. 460 (N.D. Tex. 1973) .......................................................................................... 34

Wenger v. Monroe,
282 F.3d 1068 (9th Cir. 2002) .................................................................................................. 17

We the Patriots USA, Inc. v. Hochul,
17 F.4th 266 (2d Cir. 2021) ................................................................................................ 28, 29

White v. Carlucci,
862 F.2d 1209 (5th Cir. 1989) ............................................................................................ 30, 39

Wickham v. Hall,
706 F.2d 713 (5th Cir. 1983) .................................................................................................... 15

Wiggins v. Sec’y of Army,
751 F. Supp. 1238 (W.D. Tex. 1990)........................................................................................ 34

Wilburn v. Dalton,
832 F. Supp. 943 (E.D. Pa. 1993) ............................................................................................. 33

Williams v. Brown,
2021 WL 4894264 (D. Or. Oct. 19, 2021) ................................................................................ 32

Williams-Yulee v. Fla. Bar,
575 U.S. 433 (2015) .................................................................................................................. 22

Winter v. NRDC, Inc.,
555 U.S. 7 (2008) ............................................................................................................ 9, 30, 36

Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) .................................................................................................... 24
Statutes
5 U.S.C. §§ 701–06 ......................................................................................................................... 8

10 U.S.C. § 1552 ........................................................................................................................... 33

42 U.S.C. § 2000bb ......................................................................................................................... 8

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Other Authorities
Catherine Bozio, et al., Laboratory-Confirmed COVID-19 Among Adults Hospitalized with
COVID-19–Like Illness with Infection-Induced or mRNA Vaccine-Induced SARS-CoV-2
Immunity — Nine States, January–September 2021, posted on CDC, Morbidity and
Mortality Weekly Report (MMWR) (Oct. 29, 2021), https://perma.cc/R4HU-82YF ........ 27, 28

CDC, COVID Data Tracker, https://perma.cc/8DFY-VW8C ........................................................ 3

CDC, Delta Variant, https://perma.cc/4RW6-7SGB ...................................................................... 3

CDC, Frequently Asked Questions about COVID-19 Vaccination (updated Nov. 5, 2021),
https://perma.cc/S3BT-257B .................................................................................................... 27

HHS, Determination that a Public Health Emergency Exists (Jan. 31, 2020),
https://perma.cc/VZ5X-CT5R .................................................................................................... 3

How COVID-19 Spreads, https://perma.cc/4ZBC-8WYQ ............................................................. 3

Stanley Lemon, et al., Protecting Our Forces: Improving Vaccine Acquisition and
Availability in the US Military, National Academies Press, 2002,
https://perma.cc/E545-TQ9G .................................................................................................. 3, 4

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INTRODUCTION
In warfare, disease has traditionally accounted for more service member deaths than
battlefield injuries.  In 1777, General Washington instituted the first program to inoculate the
troops, and a mandatory vaccination program for members of the American military has existed
ever since.  The current Department of Defense (“DoD”) immunization program requires that all
service members obtain nine immunizations, and an additional eight may be required depending
on circumstances like deployment and duty assignment.
Plaintiffs—35 service members, all serving in the Naval Special Warfare community—
seek an order enjoining the addition of the COVID-19 vaccination to the list of inoculations
required of all members of the Navy.  They also seek an order requiring the Navy to maintain them
in their special warfare billets and deem them worldwide deployable for combat missions.
Plaintiffs claim to have religious objections to the COVID-19 vaccination and seek to have this
Court order the Navy to allow them to take other “safety measures like mask-wearing, physical
distancing, sick leave, and teleworking” while performing special warfare missions.  Pls.’ Mem.
6, ECF No. 16.  Their extraordinary request is contrary to both law and common sense.
Multiple jurisdictional obstacles preclude a finding that Plaintiffs are likely to succeed on
their claims.  Plaintiffs’ claims are not ripe and are not justiciable because the military processes
are ongoing, and Plaintiffs have not exhausted their military remedies.  Even if Plaintiffs had
exhausted, their claims regarding duty assignments and deployability would not be justiciable.
On the merits, Plaintiffs’ claims fare no better.  Plaintiffs’ core contention that the Navy
will not consider their requests for religious accommodations is inaccurate; the Navy’s vaccine
requirement expressly allows for a religious accommodation, and thus satisfies the requirements
of the Religious Freedom Restoration Act (“RFRA”).  Even if there were some basis to address
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these claims before the Navy has had a chance to consider Plaintiffs’ religious-accommodation
requests, the military context would require a higher deferential approach to the Navy’s judgment
that vaccines are necessary.  The Navy’s interests in protecting the health and mission of the naval
forces is indisputably compelling.  And Plaintiffs’ proffered less-restrictive alternatives, such as
teleworking and physical distancing, cannot be taken seriously as feasible options when conducing
special warfare missions; they also do not satisfy the military’s compelling interests nearly as
effectively as immunization.  The military has a critical national security interest in deploying only
the fittest service members on these highly sensitive missions.  Special operations missions require
an elite team that can deploy at a moment’s notice anywhere in the world, and an unexpected
absence caused by illness can seriously undermine a special operations team’s ability to
accomplish its mission.
The remaining factors also weigh heavily against the entry of any injunctive relief.
Plaintiffs cannot show that they face irreparable harm or that the balance of equities tilts in their
favor.  Vaccine requirements are critical to reducing infectious disease morbidity and mortality in
the armed forces where service members—particularly those serving in the special warfare
community—must routinely operate in close quarters.   Even if applied to just Plaintiffs, an
injunction would degrade military readiness, undermine the efforts to combat the deadly
coronavirus, and harm national security.
Four other courts have already denied similar motions by service members for preliminary
injunctions and temporary restraining orders.  See Church v. Biden, 2021 WL 5179215 (D.D.C.
Nov. 8, 2021); Doe v. Austin, 2021 WL 5816632 (N.D. Fla. Nov. 12, 2021); Navy SEAL 1 v. Biden,
2021 WL 5448970 (M.D. Fla. Nov. 22, 2021); Order, Robert v. Austin, No. 1:21-cv-02228-RM
(D. Colo. Sept. 1, 2021), ECF No. 12.  The Court should likewise deny Plaintiffs’ motion.
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BACKGROUND
I.
The COVID-19 Pandemic
The virus SARS-CoV-2 causes a disease known as COVID-19 that “spreads when an
infected person breathes out droplets and very small particles that contain the virus.”  Centers for
Disease Control and Prevention (“CDC”), How COVID-19 Spreads, https://perma.cc/4ZBC-
8WYQ.1  In January 2020, the then-Secretary of HHS declared a public health emergency because
of COVID-19.  HHS, Determination that a Public Health Emergency Exists (Jan. 31, 2020),
https://perma.cc/VZ5X-CT5R.
In July 2021, the United States began to experience “a rapid and alarming rise in . . .
COVID-19 case[s] and hospitalization rates,” driven by the Delta variant.  See CDC, Delta
Variant, https://perma.cc/4RW6-7SGB.  Community transmission rates remain high in 43 states
and substantial in six other states.  See CDC, COVID Data Tracker,  https://perma.cc/8DFY-
VW8C.  And daily case rates are once again increasing.  Id.  To date, more than 49,000,000
Americans have been infected, and more than 790,000 Americans have died from COVID-19.  Id.
In DoD alone, “there have been 256,552 cases” of COVID-19 in service members, “of which 2,298
have required hospitalizations and led to 80 deaths.”  Ex. 12 (Decl. of Scott Stanley) ¶ 3 (App263).
Of those 80 service members, all but one were unvaccinated.  Id.  Moreover, many “otherwise
healthy Service members have developed ‘long-haul’ COVID-19, potentially impacting their long-
term ability to perform their missions.”  Ex. 18 (Decl. of Tonya Rans, M.D.) ¶ 9 (App350–51).
II.
Department of Defense COVID-19 Vaccine Directive
The U.S. military instituted its first immunization program in 1777 when General
Washington directed the inoculation of the Continental Army for smallpox.  Stanley Lemon, et al.,

1 The Court may take judicial notice of factual information available on government websites.  See
Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322–23 (2007).
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Protecting Our Forces: Improving Vaccine Acquisition and Availability in the US Military,
National Academies Press, 2002, available at https://perma.cc/E545-TQ9G.  Deaths due to
infectious diseases outnumbered those due to direct combat injuries until World War II, when
vaccines became widespread.  Id. at 3.  More recently, disease accounted for nearly 70% of U.S.
Army hospital admissions during the Persian Gulf War.  Id. at 10, Table 1-1.  Military-mandated
vaccines have played a key role in reducing infectious disease morbidity and mortality among
military personnel.  Id. (highlighting the historical use of vaccines in armed conflict).  For decades,
the military has implemented a variety of enduring or situational inoculation measures to maintain
the readiness of the force.  See Ex. 5 (Congressional Research Report Defense Health Primer:
Military Vaccinations) (App071–72).
 DoD’s current immunization program is governed by DoD Instruction (“DoDI”) 6205.02.
Nine vaccines are required for all service members, including the annual influenza vaccine, while
eight others are required when certain elevated risk factors are present.  See Ex. 4 (Navy Bureau
of Medicine and Surgery Instruction (“BUMEDINST”) 6230.15B), Table D-1 (App063).  In
general, DoD aligns its immunization requirements and eligibility determinations for service
members with recommendations from the CDC’s Advisory Committee on Immunization
Practices.  Ex. 3 (DoDI 6205.02) at 3 (App009).  The Services have separately issued regulatory
guidance for the administration of vaccines to service members, including processes to seek
medical and religious exemptions.  See Ex. 4, Chapter 2-6 (App040–41).
On August 9, 2021, Secretary of Defense Lloyd Austin, noting the impact COVID-19 rates
have on military readiness, announced that he would add the COVID-19 vaccine to the list of
vaccines required for all service members by the earlier of mid-September or upon approval by the
Food and Drug Administration (“FDA”).  See Ex. 1 (Mem. for all Defense Employees (Aug. 9,
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2021)) (App002).  On August 24, 2021, after FDA announced the approval of the Pfizer COVID-
19 vaccine, Secretary Austin directed the Secretaries of the Military Departments to immediately
vaccinate all members of the armed forces under DoD authority who were not already fully
vaccinated.  See Ex. 2 (Mem. For Senior Pentagon Leadership, Commanders of the Combatant
Commands, Defense Agency and DoD Field Activity Directors (Aug. 24, 2021)) (App004–05).
III.
The Navy’s Implementation of DoD’s Vaccine Directive
A.
Navy Policies Applicable to All Navy Service Members
Shortly after the Secretary of Defense issued the vaccine directive, the Navy issued
guidance for implementing the Secretary’s directive.  Ex. 6 (ALNAV 062/21) (App075–76).  Upon
determining that COVID-19 “adversely impacts [the Navy’s] force readiness and mission
execution,” the Secretary of the Navy directed active-duty service members to be fully vaccinated
within 90 days (i.e., by November 28, 2021).  Id. ¶¶ 2, 4 (App075).
As with other vaccine requirements, the Navy’s implementation guidance establishes a
process to seek medical and religious exemptions.  See Ex. 7 (NAVADMIN 190/21) ¶ 3.d.
(App079).  The Navy has an appeal process available to service members seeking religious
exemptions if their initial requests are denied.  Ex. 17 (Decl. of William Merz) ¶ 14 (App308–11).
A service member who refuses vaccination without an approved exemption may be subject to
discipline or adverse administrative action.  See, e.g., Ex. 6 ¶ 5 (App075).  But adverse action will
not be taken against a service member with a pending exemption request.  Ex. 8 (NAVADMIN
225/21) ¶ 3.c (App084); Ex. 16 (Decl. of Mery-Angela Sanabria Katson) ¶ 3 (App294); Ex. 17 ¶¶
10 n.9, 14 n.13 (App306, App310).  On October 13, 2021, the Navy issued NAVADMIN 225/21,
designating the Chief of Naval Personnel as the COVID Consolidated Disposition Authority—the
centralized authority to initiate separation procedures for sailors who refuse the COVID-19
vaccination and do not have a pending exemption request.  Ex. 8 ¶ 5 (App084–85).  The same
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NAVADMIN designated the Vice Chief of Naval Operations—the second highest uniformed
officer in the Navy—as the Navy authority to initiate court-martial and non-judicial punishment
for sailors refusing the COVID-19 vaccination without an exemption.  Id.  These disciplinary
authorities are thus withheld from lower-level commanders.
On November 15, 2021, the Chief of Naval Personnel issued further guidance to
commanders pertaining for service members refusing the COVID-19 vaccination.  See Ex. 9
(NAVADMIN 256/21) (App089–96).  This guidance provides that the “least favorable
characterization of service for Navy service members refusing the vaccine, without extenuating
circumstances, will be GENERAL (under honorable conditions).”  Id. ¶ 2.a. (App090).  However,
“Navy service members who are not vaccinated, regardless of exemption status, may be
temporarily reassigned with concurrence of the first flag officer in the administrative chain of
command based on operational readiness and mission requirements.”  Id.  Plaintiffs seek to have
this Court enjoin NAVADMIN 225/21 and NAVADMIN 256/21, both of which apply to the entire
Navy.  See Pls.’ Proposed Order ¶ 2, ECF No. 15-1.
B.
Navy Special Warfare Community
The Naval Special Warfare (“NSW”) community consists of Navy SEALs and NSW
combat support personnel, such as Special Warfare Combatant Craft Crewmen (“SWCC”),
Explosive Ordinance Disposal personnel, and Navy Divers.  Ex. 15 (Decl. of Christopher Brown)
¶ 3 (App282–83).  Navy SEALs and Special Warfare Combatant Craft Crewmen comprise the
“special operations forces.”  Id. ¶ 3 (App282).  NSW service members conduct some of the
military’s most critical and sensitive missions, such as small-scale offensive actions, special
reconnaissance, countering weapons of mass destruction, counterterrorism, counterinsurgency,
and hostage rescue and recovery.  Id. ¶¶ 3, 14 (App282–83, App289); see also Navy SEAL,
available at https://www.navy.com/seals (last visited Dec. 9, 2021).  These missions often occur
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in diplomatically sensitive or hostile environments that lack medical facilities, and may necessitate
clandestine action, often working with or through host-nation, underground, and/or guerilla forces.
Ex. 15 ¶ 14 (App289).  NSW service members conducting these missions routinely engage in
“high-risk operations,” such as parachuting, high-speed boat and unconventional vehicle
operation, weapons operation, demolitions employment, and SCUBA diving.  Ex. 14 (Decl. of
Lanny Littlejohn) ¶ 4 (quoting MANMED § 15-105(1)) (App276).  And they conduct these
operations in small, tight-knit units operating in close proximity.  Id. ¶ 5 (App276–77); Ex. 15 ¶
14 (App289).
C.
Navy Policies Applicable to Members of the Navy Special Warfare Community
Service members in the NSW community are subject to DoD and Department of the Navy
policies, as well as policies governing members of the NSW community, which are referred to as
“Trident Orders.”  Ex. 15 ¶ 5 n.3 (App283).  Following the issuance of the DoD and Department
of the Navy vaccine directives, 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.  See Ex. 10 (Trident
Order #12) (App099); Ex. 15 ¶ 5 (App283–84).  Trident Order #12 did not change the process for
seeking exemptions from the Navy’s vaccine directive; NSW service members’ exemption
requests for either medical or administrative (including religious) reasons are adjudicated in
accordance with the applicable Navy policy.  See Ex. 10 (App099); Ex. 15 ¶ 6 (App284).
Trident Order #12 also reminded special forces personnel of a pre-existing policy relating
to medical disqualification of special operations personnel refusing to receive recommended
vaccines based on their personal or religious beliefs.  Ex. 10 (App099); Ex. 15 ¶ 7 (citing Ex. 11
(MANMED § 15-105(4)(n)(9)) (App284)).  Because of the critical nature of the missions, the
physical demands of their activities, and the likely lack of medical facilities while deployed, Navy
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SEALs and Special Warfare Combatant Craft Crewmen are subject to stringent medical
requirements.  Ex. 14 ¶ 4 (App274–75).  If members cannot meet these requirements, they are
medically disqualified from service so as not to endanger their lives, the lives of other service
members in their unit, and the mission.  Id. ¶ 7 (App277–78).  Accordingly, Trident Order #12
advised special operations forces personnel that they were required to seek a waiver from medical
requirements under the Navy’s Manual of the Medical Department (“MANMED”) § 15-105, in
addition to any medical or administrative exemption request from the COVID-19 vaccine
requirement.  Id. ¶ 9 (App278).  This provision was included in Trident Order #12 to ensure that
all special operations personnel understood the unique medical requirements applicable to them,
as these requirements were not addressed in ALNAV 062/21 or NAVADMIN 190/21.  See id.
IV.
Procedural History
On November 9, 2021, 35 members of the U.S. Navy, all currently proceeding under
pseudonyms, filed their complaint challenging the DoD COVID-19 vaccine directive and Navy
policies implementing the DoD directive under RFRA, 42 U.S.C. § 2000bb (Counts 1–2), the First
Amendment (Counts 3–4), and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06
(Counts 5–8).  Compl. ¶¶ 100–257, ECF No. 1.  Plaintiffs sued the President and DoD, as well as
the Secretary of Defense and Secretary of the Navy in both their official and individual capacities.
Id. ¶¶ 22–25.  Plaintiffs seek a nationwide injunction against the President and the military that
would prevent implementation of DoD’s and Navy’s COVID-19 vaccination policies; a
declaratory judgment that the vaccination policies violate RFRA, the First Amendment, and the
APA; actual damages for purported violations of RFRA; and nominal damages against the
Secretary of Defense and Secretary of the Navy in their individual capacities.  Id. at 36–37.
On November 24, 2021, Plaintiffs filed their motion for a preliminary injunction against
Defendants in their official capacities.  Pls.’ Mem., ECF No. 16.  The motion addresses only RFRA
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and First Amendment claims.  See generally Pls.’ Mem.  Plaintiffs seek to enjoin: (1) Defendants’
purported “across-the-board denial of religious accommodation requests for COVID-19
vaccination,” “differential treatment of accommodation requests for the COVID-19 vaccination
for secular reasons and accommodation requests for religious reasons,” and “retributive or negative
action against servicemembers who make or have made religious accommodation requests”; (2)
the application of four Navy policies concerning COVID-19 vaccine requirements to Plaintiffs;
and (3) Defendants from taking any discipline or adverse employment action against Plaintiffs.
See Pls.’ Mem. 2–3; Pls.’ Proposed Order.
LEGAL STANDARDS
“A preliminary injunction is an extraordinary remedy never awarded as of right.”  Winter
v. NRDC, Inc., 555 U.S. 7, 24 (2008); Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009).
(“Injunctive relief is an extraordinary and drastic remedy[ ] and should only be granted when the
movant has clearly carried the burden of persuasion.”).  Plaintiffs must “by a clear showing”
establish that (1) they have a substantial likelihood of success on the merits; (2) they will suffer
irreparable harm without an injunction; (3) the balance of equities tips in their favor; and (4)
preliminary relief serves the public interest.  Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
Plaintiffs’ failure to demonstrate any of the factors is sufficient to deny injunctive relief, Allied
Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989), and “[t]he decision to grant
a preliminary injunction is to be treated as the exception rather than the rule[,]” Miss. Power &
Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
Additionally, judicial review of claims involving the “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), is highly constrained.  Rostker v. Goldberg, 453 U.S. 57, 66 (1981)
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(Because of the “healthy deference to legislative and executive judgments in the area of military
affairs,” courts employ a relaxed scrutiny in reviewing military policy.); Farmer v. Mabus, 940
F.2d 921, 923 (5th Cir. 1991) (“We are keenly aware that judicial intrusion into military matters
is to be most cautiously and charily approached.”).  Such deference extends to constitutional claims
and military decisions about the health and welfare of the troops.  See Solorio v. United States, 483
U.S. 435, 448 (1987); Mazares v. Dep’t of Navy, 302 F.3d 1382, 1385 (Fed. Cir. 2002).
ARGUMENT
I.
Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims.
The Court lacks jurisdiction over this case for several reasons, and the lack of jurisdiction
forecloses any finding of substantial likelihood of success on the merits.  See Nianga v. Wolfe, 435
F. Supp. 3d 739, 743 (N.D. Tex. 2020).  As an initial matter, the Court may not enter the requested
relief against the President, and Plaintiffs have no standing to bring suit against him.  Next,
Plaintiffs’ challenge to the DoD and Navy vaccine directives is not justiciable because Plaintiffs
have not shown that they have completed the process for requesting exemptions or exhausted their
intra-military remedies before filing suit—a long-standing prerequisite for jurisdiction over
military claims in this Circuit.  See Von Hoffburg v. Alexander, 615 F.2d 633 (5th Cir. 1980).
Further, their claims pertaining to their military duty assignments and worldwide deployability
determinations are not reviewable.  Even if Plaintiffs could establish jurisdiction, they cannot show
they are likely to succeed on the merits of any of their claims, which rest on factual and legal
misconceptions about the President’s, DoD’s, and the Navy’s policies and decisions.
A.
The Court Lacks Jurisdiction to Enter Relief Against the President.
As this Court recently recognized, neither declaratory nor injunctive relief is proper against
the President in his official capacity.  See Order at 3, Foley v. Biden, No. 4:21-cv-01098-O (N.D.
Tex. Oct. 6, 2021), ECF No. 18.  Indeed, “[w]ith regard to the President, courts do not have
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jurisdiction to enjoin him and have never submitted the President to declaratory relief.”  Newdow
v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010) (citations omitted); see Franklin v.
Massachusetts, 505 U.S. 788, 802–03 (1992) (“[I]n general this court has no jurisdiction of a bill
to enjoin the President in the performance of his official duties.” (quotation marks omitted)); Navy
SEAL 1, 2021 WL 5448970, at *2 (finding that “[n]o injunctive or declaratory relief can issue
against the President,” including for RFRA claims); Smith v. Biden, 2021 WL 5195688, at *5
(D.N.J. Nov. 8, 2021) (similar).  In addition, Plaintiffs lack standing to bring suit against the
President, as the vaccine directives that apply to them were issued by DoD and the Navy, not the
President.  Therefore, Plaintiffs cannot establish an injury caused by the President, nor can they
establish that any such injury could be redressed by this Court.  See Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016).  Accordingly, the President should be dismissed from this case and no
injunction should be entered against him.
B.
Plaintiffs Have Not Exhausted Military Remedies.
Plaintiffs are 35 service members from the Navy Special Warfare Community.  They claim
to object to the DoD and Navy COVID-19 vaccination requirement based on their sincerely held
religious beliefs.  Pls.’ Mem. 1.  All but two Plaintiffs have submitted religious accommodation
requests to the Navy seeking to avoid the COVID-19 vaccination requirement and instead to fulfill
any special warfare missions they may be assigned using “safety measures like mask-wearing,
physical distancing, sick leave, and teleworking.”  Id. at 6; see also Ex. 16 ¶ 4 (App295) (noting
Navy SEAL 22 and SWCC 3 have not submitted religious accommodation requests).  No Plaintiff
claims to have been formally disciplined or had discharge procedures initiated against them.
Plaintiffs seek to have this Court order the Navy to grant them a religious exemption to the
COVID-19 vaccination requirement before the Navy has fully adjudicated their request.  Further,
they ask this Court to intrude into the management of the military by forcing the Navy to consider
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Plaintiffs medically qualified for continued service in a special warfare unit, eligible for combat
missions, and world-wide deployable.  See, e.g., Pls.’ Mem. 25–27.
Plaintiffs cite no case that has ever granted such extraordinary relief in the military context,
and in fact, they provide no authority supporting the reviewability of military decisions.
Nevertheless, “[i]t has long been recognized that interference by civilian courts with military
authority inevitably raises both questions about judicial competency in this area and separation of
powers concerns.”  Bynum v. FMC Corp., 770 F.2d 556, 562–63 (5th Cir. 1985).  Here, each of
Plaintiffs’ claims is non-justiciable.  It may be that if the Navy rejects one or more Plaintiffs’
requests for accommodations—which is entirely speculative at this point—they may be able to
pursue certain claims, such as challenges to a discharge decision resulting from a failure to comply
with the vaccination requirement, at that point (although even then, the Navy’s decision would
receive significant deference given the military context).  But, as Plaintiffs’ claims are not ripe, it
is far too soon to say if that will be the case.  New Orleans Pub. Serv., Inc. v. Council of City of
New Orleans, 833 F.2d 583, 587 (5th Cir. 1987) (“[A] case is not ripe if further factual
development is required.”).  And other claims, such as their request to continue serving in a special
warfare unit or be deemed worldwide deployable, are decisions of military judgment and will
likely never be fit for judicial review.
This Circuit decides the justiciability of claims requiring review of “internal military
affairs” using the test articulated in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971); Meister v.
Tex. Adjutant General’s Dep’t, 233 F.3d 332, 339 (5th Cir. 2000).  In Mindes, the Fifth Circuit
held that courts “should not review internal military affairs in the absence of (a) 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 (b) exhaustion of available intraservice corrective
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measures.”  453 F.2d at 201.  If a plaintiff satisfies both of those two prerequisites, courts must
weigh four factors, discussed in Part I.C, to determine if the case is reviewable.
Plaintiffs’ claims fail this first step of the Mindes test.  Although Plaintiffs allege a violation
of constitutional and statutory rights, it cannot seriously be disputed that they have not exhausted
their intra-military remedies.  Until they do, Plaintiffs “will find the doors of the federal courthouse
closed pending exhaustion of available administrative remedies.”  Von Hoffburg, 615 F.2d at 637–
38 (citing Hodges v. Callaway, 499 F.2d 417, 420 (5th Cir. 1974)).  “The strict application of the
exhaustion doctrine in military discharge cases serves to maintain the balance between military
authority and the power of federal courts.”  Id.  All but two Plaintiffs have submitted a religious
exemption request, but they concede that only some of those requests have been decided at the
initial level, and none have completed the available appeals process.  Ex. 16 ¶ 4 (App295) (noting
the status of Plaintiffs’ religious accommodation requests); Pls.’ Mem. 2.  Plaintiffs who have not
submitted an exemption request or declined to appeal an initial denial of such a request obviously
have not exhausted their intra-military remedies.   Id. ¶¶ 4.a, 4.c (App295).
Moreover, Plaintiffs who still have a religious exemption request pending do not even have
a cognizable injury, id. ¶¶ 4.a, 4.c (App295), because any harm from receiving the vaccine or
facing adverse action rests “upon contingent future events that may not occur as anticipated, or
indeed may not occur at all.”  Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas
v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–581 (1985)).  If the military grants the
requests, the service members will be exempted from the vaccination requirement, and while they
wait for a determination, they are not subject to any disciplinary action or discharge proceedings.
Ex. 17 ¶¶ 10 n.9, 14 n.13 (App306, App310).
Even if the Navy’s appellate authority ultimately denies Plaintiffs’ religious exemption
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requests, they refuse to comply and face adverse action—a series of hypothetical, future events—
the Navy has further administrative procedures that offer many opportunities for them to present
their arguments and for the Navy to respond.  See Ex. 17 ¶¶ 14–22 (App308–20).  Anyone subject
to discipline can challenge the lawfulness of the vaccination requirement in those proceedings.
See United States v. Kisala, 64 M.J. 50 (C.A.A.F. 2006); see also Ex. 17 ¶ 20 n.19 (App318).
Should Plaintiffs face discharge for non-compliance with the directive, they may present their
arguments before the Navy discharge authority.  Ex. 17 ¶¶ 17–19 (App312–16).  This process takes
several months, and service members with more than six years of military service receive a formal
administrative hearing over which a panel of no fewer than three senior service members preside.
Id.  If a service member is discharged, he or she can appeal to the Navy Discharge Review Board
and Board for Correction of Naval Records (“BCNR”).  See Ex. 17 ¶ 22 (App319–20).  For adverse
action less than discharge, the Navy has additional procedures that can provide relief.  Id.
Plaintiffs argue that these military procedures would be futile to pursue.  Pls.’ Mem 2
(“These interim adverse actions foreshadow the predetermined outcome of Plaintiffs’ requests.”).
But “the exhaustion doctrine rests on legitimate and important policy objectives governing the
proper balance between military authority and the power of federal courts.”  Walker v. United
States, 93-cv-2728, 1994 U.S. Dist. LEXIS 16550, at *4–6 (E.D. La. Nov. 15, 1994).  The fact that
Plaintiffs may not anticipate a favorable outcome does not render the remedies futile.  Hodges,
499 F.2d at 423 (“[T]he administrative remedy available to grievants like [the plaintiffs] may offer
cold comfort and small consolation, [but] it is beyond [this Court’s] authority to permit the
exceptions to the exhaustion doctrine to swallow the rule.”); Pullins v. West, 3 F.3d 56 (table), No.
93-3355, 1994 WL 447268, at *3 (7th Cir. Aug. 19, 1994) (stating that “the fact that [a plaintiff]
may have no faith in it, evidently because of his anticipation that his grievance will be rejected, is
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not sufficient to render the procedure itself futile”); Shaw v. Austin, 2021 WL 1840397, at *10
(D.D.C. May 1, 2021) (“Despite Plaintiff’s skepticism about the show-cause process, the Court
cannot so easily dismiss the possibility that he will have a fair opportunity to make his case to a
Board of Inquiry.”); cf. Chappell v. Wallace, 462 U.S. 296, 303 (1983) (recognizing that service
member complaints of a deprivation of constitutional rights can be addressed “within the
framework of [] intramilitary administrative procedure”).
In any event, the exhaustion requirement also serves the important purpose of allowing the
military to apply its “specialized expertise” in the first instance.  Lawrence v. McCarthy, 344 F.3d
467, 470 (5th Cir. 2003).  As another Court recently found in a nearly identical context, review of
Plaintiffs’ claims without first allowing the military’s internal administrative process to conclude
would “infringe on the military’s expertise and interest in handling its own personnel matters.”
Church, 2021 WL 5179215, at *11.  Accordingly, until those military procedures are exhausted,
Plaintiffs cannot seek relief in this Court.  Wickham v. Hall, 706 F.2d 713, 715 (5th Cir. 1983);
Hodges, 499 F.2d 417; Standage v. Braithwaite, 526 F. Supp. 3d 56, 93–94 (D. Md. 2021);
Diraffael v. Cal. Mil. Dep’t, 2011 WL 13274364, at *3 (C.D. Cal. Mar. 21, 2011); Vaughan v. Ky.
Army Nat’l Guard, 2013 WL 211075, at *6 (E.D. Ky. Jan. 18, 2013).
C.
Plaintiffs’ Claims Pertaining to Their Duty Assignments, Deployment, and

Medical Qualifications Are Non-Justiciable.
Even if Plaintiffs had exhausted their intra-military remedies, their claims regarding their
duty assignments, deployment, and medical fitness for duty are not justiciable under Mindes.  If
the first step of Mindes is satisfied, a court then must weigh the following four factors to determine
whether a claim regarding internal military affairs is justiciable:
1. The nature and strength of the plaintiff’s challenge to the military determination;
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.
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Mindes, 453 F.2d at 201–02; Meister, 233 F.3d at 339.  This second step of the Mindes analysis
“requires the court to balance the sufficiency of the complaint’s allegations against the policies
contravening review.”  Johnson v. Reed, 609 F.2d 784, 788–89 (5th Cir. 1980).
As explained above, the traditional deference afforded to the military requires that courts
treat certain challenges to military personnel decisions as non-justiciable, even where a
constitutional claim is raised.  See, e.g., Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953); Meister,
233 F.3d at 341; Harkness v. Sec’y of Navy, 858 F.3d 437, 443–45 (6th Cir. 2017); Mier v. Owens,
57 F.3d 747, 749–50 (9th Cir. 1995); see also Voge v. United States, 844 F.2d 776, 780 (Fed. Cir.
1988) (noting that there are “thousands of . . . routine personnel decisions regularly made by the
services which are variously held nonjusticiable or beyond the competence or the jurisdiction of
courts to wrestle with”).  These types of “internal military decisions” are unreviewable under
Mindes.  See Meister, 233 F.3d at 341.  For example, in Harkness, a former Navy chaplain alleged
that he was denied various promotions and duty assignments in violation of the First Amendment.
858 F.3d at 443.  The Sixth Circuit explained that “courts are generally reluctant to review claims
involving military duty assignments,” noting that “[s]everal justifications for this rule exist: lack
of expertise, deference to the unique role of the military in our constitutional structure, and the
practical difficulties that would arise if every military duty assignment was open to judicial
review.”  Id.
The first Mindes factor—the strength of Plaintiffs’ claims—weighs against judicial review.
As discussed in greater detail below in Part I.D, the constitutional and statutory claims raised by
Plaintiffs are unpersuasive because the military can reasonably require its service members to be
vaccinated against an additional disease, particularly in the midst of a deadly pandemic, while not
running afoul of religious rights.  Further, the Navy can certainly consider service members’
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COVID-19 vaccination status when determining their duty assignment as it does for several other
mandatory vaccines.  Ex. 5 Table D-1 (App062) (showing vaccines required on a situational basis
depending on deployment and duty assignment).
The second Mindes factor also weighs against judicial review under these circumstances.
As discussed below in Part II, Plaintiffs face no imminent risk of harm.  Cf. Guerra v. Scruggs,
942 F.2d 270, 279 (4th Cir. 1991) (finding lack of irreparable harm showing determinative of
second Mindes factor, where a less than honorable discharge was at stake).  If less than honorable
discharges do not warrant judicial interference in military personnel decisions, a change of duty
assignment or deployability status is also not the sort of harm justifying judicial review.  See
Harkness, 858 F.3d at 444 (“the harm inflicted by the denial of a routine duty assignment is
negligible”) (quoting Schlanger v. United States, 586 F.2d 667, 671–72 (9th Cir. 1978)).  Here,
Plaintiffs’ claimed harms from not receiving their preferred assignments or deployments or from
medical disqualification for certain assignments are not the types of harm justifying judicial
interference in internal military personnel decisions.
The third and fourth Mindes factors, “[t]he extent of interference with military functions”
and “[t]he extent to which military discretion or expertise is involved,” are often considered
together.  Wenger v. Monroe, 282 F.3d 1068, 1075 (9th Cir. 2002).  Both weigh sharply in favor
of the Government here.  As the Sixth Circuit explained, “[d]uty assignments lie at the heart of
military expertise and discretion” and “[s]ubjecting every such assignment to judicial review
would have a deleterious effect on the military’s performance of its vital operations and would
impede its overall preparedness.”  Harkness, 858 F.3d at 444–45; see also Antonellis v. United
States, 723 F.3d 1328, 1336 (Fed. Cir. 2013) (“Courts are in no position to determine the ‘best
qualified Officer’ or the ‘best match’ for a particular billet.”).  The Fifth Circuit has also recognized
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that “[s]uits 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 are an improper
interference by the judiciary in the management of the armed forces.”  Miller v. United States, 42
F.3d 297, 303 (5th Cir. 1995) (citing United States v. Shearer, 473 U.S. 52,  58 (1985)).  Rather,
“‘[c]omplex, subtle, and professional decisions as to the composition, training, . . . and control of
a military force are essentially professional military judgments.’”  Id. (citing Chappell, 462 U.S.
at 302); see also Sebra v. Neville, 801 F.2d 1135 (9th Cir. 1986) (declining to review military
transfer decision).
This is no less true when medical fitness determinations are at stake.  In Mindes itself, the
Fifth Circuit noted that the Supreme Court had been unwilling to venture into this area of military
expertise, such as when the Court was asked to analyze “medical records” and an individual’s
“fitness as an officer.”  See Mindes 453 F.2d at 200 (citing Reaves v. Ainsworth, 219 U.S. 296
(1911), for proposition that Court refused to review plaintiff’s medical records and determination
of fitness as an officer); see also Maier v. Orr, 754 F.2d 973, 984 (Fed. Cir. 1985) (responsibility
for determining physical fitness of service persons is that of the armed forces, not of the judiciary);
Layman v. Harvey, 2007 WL 430678, *10–11 (M.D. Fla. Feb. 5, 2007) (declining to review
hardship and fitness determination); see also Mazares, 302 F.3d at 1385 (“The military has broad
authority and discretion in dealing with its personnel, both military and civilian, including the
protection of their health.”).
Plaintiffs’ claims regarding their duty assignments or medical disqualification involve
military judgments about an individual’s fitness for specific military positions.  The Court is not
well-situated to evaluate whether unvaccinated Plaintiffs are worldwide deployable in light of
close working conditions, the need to coordinate with foreign militaries, the size of ships and
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aircraft they typically work in, the threat to their units from potential outbreaks, the difficulties of
conducting a medical evacuation in theater, and the effect on military readiness of such decisions.
See, e.g., Ex. 14 ¶¶ 5, 8 (App276–78); Ex. 15 ¶¶ 14–16 (App289–91) (describing duties and threats
to units from COVID).  Plaintiffs prefer the military to rely on “safety measures like mask-wearing,
physical distancing, sick leave, and teleworking,” in lieu of medical disqualification or re-
assignment.  Pls.’ Mem. 6.  But as discussed in greater detail below in Parts I.D and III, the
military’s judgment is that such mitigation measures are not adequate to protect the force.  The
Court should not attempt to second-guess those determinations and risk placing unvaccinated
individuals in a position to undermine the military readiness of their units.  Under Mindes, these
decisions are not subject to judicial review.
D.
Plaintiffs’ First Amendment and RFRA Claims Are Unlikely to Succeed.
Plaintiffs’ facial challenges to the Navy’s COVID-19 vaccination requirement under the
First Amendment and RFRA are without merit.  The vaccine requirement complies with RFRA
because the requirement will only apply to service members requesting a religious exemption if
the Navy makes an individualized determination—particularized to the demands of the service
member’s unit—that denial of that request furthers a compelling military interest and that there is
no less restrictive means of accommodating the request.  See Ex. 17 ¶ 14 (App308–11).
Plaintiffs claim, without evidentiary support, that although they have sought a religious
exemption, the military has “made clear that none is forthcoming.”  Pls.’ Mem. 15.  Plaintiffs
provide no evidence that the military’s process to consider religious exemptions is a sham.  See
Ex. 17 ¶ 14 (App308–11).  Each religious exemption request is individually reviewed by a
commander in the service member’s chain of command for an individualized assessment of the
command’s interest in the service member’s immunization against COVID-19 and whether less
restrictive alternatives to immunization feasibly serve those interests.  Id.  Plaintiffs provide no
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basis to assume that their commander will not take that duty seriously.  They likewise fail to
provide “clear and convincing evidence” to overcome the “‘presumption of regularity that attaches
to the actions of Government agencies.’”  10 Ring Precision Inc. v. Jones, 722 F.3d 711, 725 n.79
(5th Cir. 2013) (quoting U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001)).  And an injunction
“will not be granted against something merely feared as liable to occur at some indefinite time in
the future.”  Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931).
To the extent Plaintiffs raise as-applied challenges, by claiming that the military has
wrongfully denied a religious exemption request in their particular cases (or might deny one in the
future), that type of individualized challenge to military regulations cannot be brought until that
regulation is applied in a manner that is judicially reviewable (such as a service member’s
discharge), and the service member has exhausted all intra-military remedies.  See Parts I.B., I.C.
Moreover, the required inquiry under RFRA focuses on the “application of the challenged law ‘to
the person’—the particular claimant whose sincere exercise of religion is being substantially
burdened.”  Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726 (2014) (quoting Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430–31 (2006)).  Such an inquiry
here is impossible to conduct until the Navy has the opportunity to present a complete
administrative record to the Court for judicial review.
Even if their claims were justiciable, and Plaintiffs had exhausted their intra-military
remedies, and there were an administrative record for the Court to review, their as-applied RFRA
claims would likely still fail because the Government has a compelling interest in ensuring a
military fit for service, and vaccination requirements are the least restrictive means to further that
interest.  Plaintiffs argue that the military does not have a compelling interest in mandating that
Navy Special Warfare units be immunized against a disease that has killed nearly 800,000
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Americans and caused severe illness in millions more.  Pls.’ Mem. 17–19.  But that position is
untenable.  The Navy has several compelling interests in immunizing service members against
COVID-19 infections.  First, the Supreme Court has held that “[s]temming the spread of COVID–
19 is unquestionably a compelling interest.”  Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S.
Ct. 63, 67 (2020).  Ensuring that service members are immunized against COVID-19 certainly
stems its spread in the Armed Forces.
Second, the Navy has a vital interest in maximizing the effectiveness of Naval Special
Warfare operations against U.S. enemies and minimizing the risk of error in these critical
operations.  The Government’s interest in “maximum efficiency” of Navy SEAL special
operations and ensuring their maximum capacity “of easily and quickly responding to continually
changing circumstances” is paramount.  Cf. United States v. O’Brien, 391 U.S. 367, 381 (1968).
The Navy cannot accept any Naval Special Warfare operating conditions that place its success in
combat against enemies of the United States at risk of failure.
“[W]hen evaluating whether military needs justify a particular restriction on religiously
motivated conduct, courts must give great deference to the professional judgment of military
authorities concerning the relative importance of a particular military interest.”  Goldman v.
Weinberger, 475 U.S. 503, 507 (1986).  RFRA must be applied “with particular sensitivity to
security concerns.”  See Cutter v. Wilkinson, 544 U.S. 722, 723 (2005) (describing similar statute).
“[C]ontext matters.”  Id. (quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003)); see also Lebron
v. Rumsfeld, 670 F.3d 540, 557–58 (4th Cir. 2012) (denying RFRA claim against the military and
noting that “[c]ourts have long been reluctant to interpret statutes in ways that allow litigants to
interfere with the mission of our nation’s military, preferring that Congress explicitly authorize
suits that implicate the command decisions of . . . our national defense”).
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Plaintiffs argue in the abstract that there can be no circumstances where requiring
vaccinations could be the least restrictive means of serving a compelling interest.  Here again,
numerous courts have found, in non-military settings, that preventing infectious diseases through
vaccines was the least restrictive means.  See Does 1-6 v. Mills, 16 F.4th 20, 32–33 (1st Cir. 2021);
F.F. on behalf of Y.F. v. New York, 65 Misc. 3d 616, 633 (N.Y. Sup. Ct. 2019); Brown v. Smith,
24 Cal. App. 5th 1135, 1145 (2018); Love v. State Dep’t of Educ., 29 Cal. App. 5th 980, 996
(2018); see also Hobby Lobby, 573 U.S. at 733 (“Other coverage requirements, such as
immunizations, may be supported by different interests (for example, the need to combat the
spread of infectious diseases) and may involve different arguments about the least restrictive
means of providing them.”); D.J. v. Mercer Cnty. Bd. of Educ., No. 13-0237, 2013 WL 6152363,
at *4 (W.Va. Nov. 22, 2013).  Plaintiffs contend that “a 100% vaccination rate is [not] a magic
bullet against COVID-19 infections, as vaccinated individuals can contract and transmit the virus.”
Pls.’ Mem. 19–20.  But strict scrutiny requires that a rule be “narrowly tailored, not that it be
‘perfectly tailored.’”  Williams-Yulee v. Fla. Bar, 575 U.S. 433, 454 (2015) (addressing First
Amendment free speech claim) (quoting Burson v. Freeman, 504 U.S. 191, 209 (1992)).  And
unvaccinated individuals have 5.8 times the risk of testing positive for COVID-19 and greater than
14 times the risk of dying from COVID-19.  Ex. 12 ¶ 18 (App268).  Accordingly, each
unvaccinated service member exponentially increases the rate of transmission in the Navy.
In any event, Plaintiffs focus entirely on whether their failure to immunize “will make or
break Defendants’ ability to combat the virus within the Navy[,]” Pls.’ Mem. 20, not on the
Government’s compelling interest in minimizing the risk that a service member will experience
illness or need to quarantine during deployment on a special warfare operation, thereby frustrating
the Navy’s success on critical missions.  Indeed, Plaintiffs describe their role as “conduct[ing]
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special operation missions . . . aimed at eliminating high-level enemy targets, anti-guerrilla
warfare, or intelligence-gathering behind enemy lines.”  Id. at 3.  And symptoms of even mild
cases of COVID-19 will affect military readiness and hamper the effectiveness of these most-
critical missions.  See Ex. 18 ¶¶ 7–10 (App348–51).  Considering the small size of special
operations units, each member’s health is critical to mission success.  See Ex. 14 ¶ 5 (App276).  In
short, the military has a critical national security interest in deploying only service members with
the least risk of contracting illness on the type of critical warfare missions reserved for the Navy
Seals.  Moreover, other nations have required COVID-19 immunization as a condition of entry; a
service member’s failure to be immunized may mean that the service member cannot take part in
certain missions or training exercises with partner nations.  See Ex. 12 ¶¶ 10–11 (App266).
Plaintiffs’ suggested alternatives to immunization come nowhere close to serving this
compelling interest.  For example, Plaintiffs suggest that they can telework, Pls.’ Mem. 6, but
“anti-guerrilla warfare” and “intelligence-gathering behind enemy lines,” id. at 3, obviously are
not amenable to telework, Ex. 15 ¶ 14 (App289).  Plaintiffs also assert that they can wear a mask,
Pls.’ Mem. 6, but the military has determined that masking will not prevent COVID-19 illness
during critical special operations in the same manner as immunization, and that mask wearing is
not “mission appropriate for select missions,” as when, for example, service members may be
forced to share closed-circuit diving rebreathers, Ex. 15 ¶ 14 (App289).  And Plaintiffs make no
effort to explain how “physical distancing,” Pls.’ Mem. 6, is a plausible opinion in many special
operations mission settings, like helicopters, let alone how an ill but physically distant Navy Seal
is as capable at mission success as a healthy one.  Indeed, the military has experienced multiple
COVID-19 outbreaks while adhering to mandatory masking and distancing rules.  Ex. 12 ¶¶ 8–9
(App265–66); see Does 1-6, 16 F.4th at 33 (noting same was true of Maine).
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Plaintiffs also claim that the immunization requirement for deployment on Navy SEAL
special operation missions is underinclusive because DoD has “already granted several medical
exemptions for the COVID-19 vaccination with no accompanying detriment to those service
members, who remain fully deployable,” Pls.’ Mem. 20, and because “there is no reason that
Plaintiffs are permanently non-deployable” when those in clinical trials or who received a medical
exemption are not, id. at 27.  But “a government can rebut a claim that its policy is underinclusive
‘by showing that it hasn’t acted in a logically inconsistent way—by (say) identifying a qualitative
or quantitative difference between the particular religious exemption requested and other . . .
exemptions already tolerated.”  Ali v. Stephens, 822 F.3d 776, 787 (5th Cir. 2016) (quoting
Yellowbear v. Lampert, 741 F.3d 48, 61 (10th Cir. 2014)).  And the quantitative difference between
requested medical exemptions and religious exemptions is expansive.  Whereas there are only
seven permanent medical exemptions for all Navy and Reserve personnel from the COVID-19
immunization duty, Ex. 13 (Decl. of Jeremy Biehn) ¶ 3 (App272), there are more than three
thousand pending requests for a religious exemption from the COVID-19 vaccination requirement.
See Ex. 16 ¶ 3 (App294).  The implications for the Navy’s compelling interests would be far greater
were it to grant all similarly situated religious exemptions, as compared with the seven medical
cases.  In any event, there is no evidence that any of those seven individuals is assigned to the type
of special operations missions to which Plaintiffs demand the Court order their deployment.
Indeed, all permanent medical exemption requests for the personnel falling under NSWC authority
have been denied.  Ex. 14 ¶ 10 (App278–79).  Similarly, Plaintiffs’ comparison to clinical trials is
unavailing.  See Pls. Mem. 20.  Any exemption granted for a service member participating in a
COVID-19 vaccine trial would be temporary in nature, while a service member’s religious
convictions are presumably permanent, and there is no evidence that any service member in the
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Navy—much less in the NSW community—is presently participating in such trials.  Ex. 13 ¶ 4
(App272).2
Plaintiffs argue that it is too late for the Navy to add COVID-19 to the list of mandatory
immunizations.  Pls.’ Mem. 21–22.  But the U.S. military has no deadline for taking actions that
maximize mission effectiveness and force readiness.  And even if the timing needed justification,
the Secretary of Defense ordered COVID-19 immunization in light of the rising infection rates due
to the Delta variant and one day after the first COVID-19 vaccine “received full licensure from the
[FDA].”  Ex. 2 (App004); Ex. 6 ¶ 3 (App075); Ex. 18 (App351–52).  It is reasonable for the
military to await FDA approval, as that process “provides additional confidence and comfort in
the safety of the most effective tool we have in our arsenal against this threat.”  Ex. 6 ¶ 3 (App075).
Plaintiffs also argue that accommodating natural immunity is a less restrictive means
because the Navy’s regulations “recognize acquired immunity as a substitute for vaccination,”
Defendants “cannot justify imposing the vaccinate mandate on the Plaintiffs who have natural
immunity from COVID-19.”  Pls.’ Mem. 22.  But this argument is based on a misreading of the
applicable regulations, and is unavailing.
The Navy’s Bureau of Medicine and Surgery Instruction (“BUMEDINST”) 6230.15B,
titled “Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases,” applies
to all the Military Services and provides requirements for the military’s vaccination program.  See

2 Plaintiffs argue that it is too late for the Navy to advance any compelling interest by adding
COVID-19 to the list of mandatory immunizations.  Pls.’ Mem. 21–22.  But the U.S. military has
no deadline for taking actions that maximize mission effectiveness and force readiness.  And even
if the timing needed justification, the Secretary of Defense ordered COVID-19 immunization in
light of the rising infection rates due to the Delta variant and one day after the first COVID-19
vaccine “received full licensure from the [FDA].”  Ex. 2 (App004); Ex. 6 ¶ 3 (App075); Ex. 18
(App351–52).  It is perfectly reasonable for the military to await FDA approval, as that process
“provides additional confidence and comfort in the safety of the most effective tool we have in our
arsenal against this threat.”  Ex. 6 ¶ 3 (App075).

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Ex. 4 (App029–69).  Pursuant to BUMEDINST 6230.15B, service members may seek a medical
exemption from an immunization requirement.  See id. ¶ 2-6a (App040).  The DoD directive and
the Navy’s implementation guidance do not eliminate the procedures for service members to obtain
a medical exemption; rather, they incorporate them.  Ex. 2 (vaccination requirement “subject to
any identified contraindications and any administrative or other exemptions established in Military
Department policy”) (App004); see also Ex. 8 (App083) (allowing service members to pursue
exemptions in BUMEDINST 6230.15B).
Plaintiffs contend that BUMEDINST 6230.15B presumptively exempts from vaccination
service members whom the military knows have a previously documented infection with the
disease for which the vaccination is being ordered.  Pls.’ Mem. 22–23.  That is not correct.  The
regulation makes clear that the decision to grant a medical exemption from an immunization
requirement is made by a health care provider on a case-by-case basis, taking into consideration
an individual’s health and the nature of the immunization.  Ex. 4 ¶ 2-6a (App040) (“Health care
providers will determine a medical exemption based on the health of the vaccine candidate and the
nature of the immunization under consideration.”).  BUMEDINST 6230.15B provides “[g]eneral
examples of medical exemptions,” which include, among other things, “[e]vidence of immunity
based on serologic tests, documented infection, or similar circumstances.”  Id. ¶ 2-6a(1)(b)
(App040).  The regulation cautions, however, that “serologic or other tests can be used to identify
pre-existing immunity from prior infections” only “[f]or some vaccine-preventable diseases.”  Id.
¶ 2-1.g (App037) (emphasis added).  Therefore, service members with previous infections or
positive serology are not automatically exempt from full vaccination requirements.  Ex. 17 ¶¶ 6, 9
(App302–03, App305); Ex. 18 ¶ 19 (App361) (“The presence of antibodies is not the same thing
as being immune.”).  There is no automatic exemption based on prior infection because “natural
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infection for some diseases, in some cases, can result in longstanding immunity (e.g., measles),”
whereas other diseases, such as “Influenza, Respiratory Syncytial Virus, Malaria, Whooping
cough, and rotavirus,” “do not mount long-standing immunity.”  Ex. 18 ¶¶ 22–23 (App362–63).
Thus, while a service member who had the measles may be granted an exemption from the
requirement to get the measles vaccine based on his prior infection, a service member who
previously had the flu may not be granted an exemption from the requirement to get the influenza
vaccine on that basis.  See id.  Plaintiffs’ interpretation of BUMEDINST 6230.15B as requiring a
presumptive exemption to a vaccine requirement on the basis of prior infection is thus meritless.
In addition, relying on CDC guidance, DoD has determined that there are insufficient data
concerning “natural immunity” against COVID-19, both as to the length of time antibodies stay in
the body following infection and the level of antibodies necessary to indicate that an individual is
protected from infection.  For these reasons, the military has determined that “a medical exemption
based on the history of COVID-19 disease or serology results does not meet ‘evidence of
immunity,’” and that the “presence of antibodies” does not make an individual immune.  Ex. 18 ¶
19 (App360–61).  The CDC’s recommendation that individuals who have previously been infected
get vaccinated is based on, among other things, a study that “showed that unvaccinated people who
already had COVID-19 are more than 2 times as likely than fully vaccinated people to get COVID-
19 again.”  CDC, Frequently Asked Questions about COVID-19 Vaccination (updated Nov. 5,
2021), https://perma.cc/S3BT-257B.  Another CDC study conducted made similar findings and
concluded that “[a]ll eligible persons should be vaccinated against COVID-19 as soon as possible,
including unvaccinated persons previously infected with SARS-CoV-2.”  Catherine Bozio, et al.,
Laboratory-Confirmed COVID-19 Among Adults Hospitalized with COVID-19–Like Illness with
Infection-Induced or mRNA Vaccine-Induced SARS-CoV-2 Immunity — Nine States, January–
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September 2021, posted on CDC, Morbidity and Mortality Weekly Report (MMWR) (Oct. 29,
2021), https://perma.cc/R4HU-82YF; see also Ex. 18 ¶¶ 20–21 (App361–62).  Accordingly,
DoD’s and the Navy’s determination that prior infection does not render a service member
automatically exempt from the vaccination requirement is grounded in the CDC’s medical
guidance and has a well-founded, reasoned basis.  See Valdez v. Grisham, 2021 WL 4145746, at
*8 (D.N.M. Sept. 13, 2021) (rejecting the plaintiffs’ argument that it was irrational for the
government to “fail[] to take into account that ‘Covid-recovered individuals have equal to or better
immunity response than vaccinated individuals’”), appeal filed, No. 21-2105 (10th Cir. Sept. 15,
2021).
Plaintiffs further claim that the immunization requirement triggers strict scrutiny under the
Constitution.  Pls.’ Mem. 23–25.  That contention is meritless.  Because Plaintiffs cannot show a
likelihood of success under RFRA, which already incorporates strict scrutiny, they cannot succeed
on any constitutional claim.  Moreover, even assuming the military context was not relevant here,
the immunization policies Plaintiffs challenge are not subject to strict scrutiny under the Free
Exercise Clause because they are neutral and generally applicable.  To be sure, the policy provides
for a medical exemption, but “an exemption is not individualized simply because it contains
express exceptions for objectively defined categories of persons.”  Kane v. De Blasio, --- F.4th
---, 2021 WL 5549404, at *7 (2d Cir. Nov. 28, 2021) (quoting We the Patriots USA, Inc. v. Hochul,
17 F.4th 266, 288 (2d Cir. 2021)); see also (303 Creating LLC v. Elenis, 6 F.4th 1160, 1187 (10th
Cir. 2021) (same).  “Rather, there must be some showing that the exemption procedures allow
secularly motivated conduct to be favored over religiously motivated conduct,” Kane, 2021 WL
5549403, at *7, a showing Plaintiffs do not make here.  Vaccinating a service member “who is
known or expected to be injured by the vaccine would harm her health” see We The Patriots USA,
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17 F.4th at 285, undermining the very interests justifying the Navy’s vaccination program.  Nor
can Plaintiffs point to the existence of the religious exemption itself as a basis for invoking strict
scrutiny.  Pls.’ Mem. 23–24.  If that were so, the existence of RFRA review itself would mean no
federal law would ever be covered by Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872 (1990).
  In any event, “review of military regulations challenged on First Amendment grounds is
far more deferential than constitutional review of similar laws or regulations designed for civilian
society.”  Goldman, 475 U.S. at 507.  Plaintiffs “cite no authority for [their] proposition that the
more free-ranging inquiry [they] propose[] is appropriate in the national security and foreign
affairs context.”  Trump v. Hawaii, 138 S. Ct. 2392, 2420 n.5 (2018).  It is no surprise that Plaintiffs
cite no case in which a court reviewed a military policy under strict scrutiny because “‘when it
comes to collecting evidence and drawing inferences’ on questions of national security, ‘the lack
of competence on the part of the courts is marked.’”  Trump, 138 S. Ct. at 2419 (citation omitted).
“‘Any rule of constitutional law that would inhibit the flexibility’ of the President ‘to respond to
changing world conditions should be adopted only with the greatest caution,’ and [judicial] inquiry
into matters of . . . national security is highly constrained.”  Id. at 2419–20 (citation omitted).  At
most, the vaccine mandate is subject to rational basis scrutiny, see id., which is easily satisfied
given the compelling interests it furthers, see supra at 22.
Again, the challenged policy here exempts religious objectors unless a commanding officer
recommends, and senior military authority agrees, that denying the exemption is narrowly tailored
to a compelling military interest.  Ex. 17 ¶ 14 (App308–11).  So denials will only occur when,
under the policy, a service member’s commander “demonstrate[s] a compelling reason for denying
the requested exemption.”  Bowen v. Roy, 476 U.S. 693, 708 (1986).  The military is best situated
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to assess whether a specific unvaccinated individual puts the military mission at risk, or whether
feasible, less restrictive alternatives are available. See Orloff, 345 U.S. at 94 (“Orderly government
requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the
Army must be scrupulous not to intervene in in judicial matters.”).  After all, “the Supreme Court
has indicated” that “military decisions and assessments of morale, discipline, and unit cohesion . .
. are well beyond the competence of judges.” Bryant v. Gates, 532 F.3d 888, 899 (D.C. Cir. 2008)
(Kavanaugh, J., concurring).
II.
Plaintiffs Do Not Face Irreparable Harm.
Plaintiffs must show that, in the absence of an injunction, they are “likely to suffer
irreparable harm.”  Daniels Health Scis., LLC v. Vascular Health Scis., LLC, 710 F.3d 579, 585
(5th Cir. 2013) (citation omitted).  It is not enough simply to “show[ ] some possibility of
irreparable injury.”  Nken v. Holder, 556 U.S. 418, 434–35 (2009); see also Winter, 555 U.S. at 22
(explaining that issuing a preliminary injunction “based only on a possibility of irreparable harm”
would be “inconsistent” with treating a preliminary injunction as an “extraordinary remedy”).
“Speculative injury is not sufficient” to “make a clear showing of irreparable harm.”  Holland Am.
Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).  Moreover, “the irreparable harm
element must be satisfied by independent proof, or no injunction may issue.”  White v. Carlucci,
862 F.2d 1209, 1211 (5th Cir. 1989).
“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).  Conversely, “[t]he
possibility that adequate compensatory or other corrective relief will be available at a later date, in
the ordinary course of litigation, weighs heavily against a claim of irreparable harm.”  Sampson v.
Murray, 415 U.S. 61, 90 (1974).  And “[i]n the context of ‘military personnel decisions, . . . courts
have held that the showing of irreparable harm must be especially strong before an injunction is
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warranted, given the national security interests weighing against judicial intervention in military
affairs.”  Church, 2021 WL 5179215, at *17 (citation omitted).  Plaintiffs make no such showing.
Plaintiffs’ principal argument is that they have suffered an irreparable injury from the loss
of their “First Amendment freedoms” and “RFRA rights.”  Pls.’ Mem. 27–28.  But, as shown
above, Plaintiffs have suffered no loss of First Amendment freedoms or RFRA rights warranting
injunctive relief at this stage, because ten Plaintiffs filed for religious exemptions to the vaccine
directive, and none of those exemption requests have been finally adjudicated.  Ex. 16 ¶¶ 3, 4
(App294–95).  Plaintiffs have not been, and will not be, directed to get vaccinated while those
requests are pending.  Ex. 8 ¶ 3.e.(4) (App079).
Plaintiffs claim that “[e]ach has a sincere religious objection to receiving a COVID-19
vaccination, Pls.’ Mem. 1, but two Plaintiffs did not submit religious exemption requests and 23
Plaintiffs have not yet or did not go through the Navy’s appeal process after their requests were
denied.  Ex. 16 ¶ 4 & Ex. A (App295, App297).  Those Plaintiffs cannot establish irreparable harm,
as they could seek an exemption or file an appeal, and the exemption request might be granted.
See Texas v. Biden, 10 F.4th 538, 558 (5th Cir. 2021) (finding that the “self-inflicted nature” of
asserted harm “severely undermines” a claim for equitable relief); Contech Casting, LLC v. ZF
Steering Sys., LLC, 931 F. Supp. 2d 809, 818 (E.D. Mich. 2013) (“[I]rreparable harm will not be
found where alternatives already available to the plaintiff make an injunction unnecessary.”).
Plaintiffs also argue they will suffer from irreparable harm from the “threat[]” of “court-
martial proceedings or involuntary separation.”  Pls.’ Mem. 29.  But, as Plaintiffs themselves
acknowledge by the use of the word “threat[],” id., it is speculative that they will be discharged
from the military or court-martialed for non-compliance with the vaccine directive.  This
speculation is two-fold.  First, no such action would occur while Plaintiffs’ exemption requests are
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pending.  Ex. 16 ¶ 3 (App294); Ex. 17 ¶¶ 10 n.9, 14 n.13 (App306, App310); see also Church,
2021 WL 5179215, at *16 (finding no irreparable harm when service members’ exemption
requests were pending); Williams v. Brown, 2021 WL 4894264, at *10 (D. Or. Oct. 19, 2021)
(finding same in the civilian context); Garland v. N.Y.C. Fire Dep’t, 2021 WL 5771687, at *9
(E.D.N.Y. Dec. 6, 2021) (same).  And if their exemption requests are granted, Plaintiffs will not
face any adverse consequences from the vaccine directive.  See Pelekai v. Hawaii, 2021 WL
4944804, at *1 (D. Haw. Oct. 22, 2021) (finding no injury when exemption requests were granted).
Second, if Plaintiffs’ exemption requests are denied, all appeals are exhausted, and they
still refuse to take the vaccine, they may be subject to a “range of administrative and disciplinary
actions.”  Ex. 6 ¶ 5 (App075).  Such administrative and disciplinary actions may, but would not
necessarily, include a court-martial proceeding.  See id.  And although service members who do
not comply with the vaccine directive will be processed for administrative separation, this process
does not automatically result in a member’s separation from service.  Ex. 17 ¶ 15 n.14 (App311).
Indeed, certain administrative and disciplinary proceedings, such as processing a service member
for separation, can take months and even up to a year to conclude and may not result in a member’s
separation.  Id. ¶¶ 15 n.14, 19 (App311, App315–16).  Such actions are not imminent, and
Plaintiffs’ speculation that they may face administrative or disciplinary proceedings in the future
cannot establish irreparable harm.  Holland Am. Ins. Co., 777 F.2d at 997; Chacon v. Granata, 515
F.2d 922, 925 (5th Cir. 1975) (“An injunction is appropriate only if the anticipated injury is
imminent and irreparable.”); Shaw, 2021 WL 1840397, at *10 (speculative that sailor faces harm
where administrative procedures incomplete).
In addition to being speculative, separation from service is not irreparable, nor is being
rendered non-deployable and ineligible for promotions and travel.  See Pls.’ Mem. 28.  The BCNR
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may correct any military record when it is necessary to correct an error or remove an injustice,
including ordering retroactive back pay and retroactive promotion.  10 U.S.C. § 1552; Ex. 17 ¶ 22
(App319–20).  And courts have consistently found that military administrative and disciplinary
actions, including separation and a less than honorable discharge, are not irreparable injuries
because the service member could later be reinstated and provided back pay if he or she prevailed
on his or her claim.  See, e.g., McCurdy v. Zuckert, 359 F.2d 491, 493 (5th Cir. 1966) (finding that
separation from service with “a general discharge” is not “irreparable”); Hartikka v. United States,
754 F.2d 1516, 1518 (9th Cir. 1985); Chilcott v. Orr, 747 F.2d 29, 34 (1st Cir. 1984); Guitard v.
Sec’y of Navy, 967 F.2d 737, 742 (2d Cir. 1992); Guerra, 942 F.2d at 274; Shaw, 2021 WL
1840397, at *10; Reinhard v. Johnson, 209 F. Supp. 3d 207, 220 (D.D.C. 2016); Wilburn v. Dalton,
832 F. Supp. 943, 948 (E.D. Pa. 1993).  Indeed, another court recently found that an adverse action
such as “military discharge or a delayed promotion” that service members may face as a result of
non-compliance with the DoD COVID-19 vaccine directive “is not irreparable.”  Church, 2021
WL 5179215, at *17 (citing Bois v. Marsh, 801 F.2d 462, 468 (D.C. Cir. 1986)).
Plaintiffs also argue that they suffer irreparable harm from the loss of the “NEC device
pin.”  Pls.’ Mem. 28–29.  Again, that is not correct.  Although a service member may not reapply
for Navy Enlisted Classification or the associated trident pin, proceedings before the BCNR may
result in the restoration of NEC status and the associated insignia (e.g., the trident pin), see 10
U.S.C. § 1552; Ex. 17 ¶ 22 (App319–20); see also Volk v. United States, 111 Fed. Cl. 313, 317,
322–23 (2013) (describing BCNR review of the loss of NEC and the pin).  Thus, loss of the NEC
device pin, even if it occurred as a result of the vaccine mandate, would not be irreparable.
Subjecting a service member to court-martial proceedings also does not constitute an
irreparable injury.  Notably, the Supreme Court in Schlesinger v. Councilman reversed an
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injunction that prevented the military from proceeding with an impending court martial, finding
that the “inconvenience of having to defend against a single criminal prosecution cannot be
considered irreparable.”  420 U.S. 738, 755 (1975) (cleaned up); see also, e.g., Wiggins v. Sec’y of
Army, 751 F. Supp. 1238, 1241 (W.D. Tex. 1990) (finding no irreparable harm from facing arrest
and possible imprisonment by avoiding deployment based on moral beliefs as a conscientious
objector), aff’d, 946 F.2d 892 (5th Cir. 1991).  Courts have followed this principle even when a
plaintiff alleges constitutional claims.  See, e.g., Waters v. Schlesinger, 366 F. Supp. 460, 462
(N.D. Tex. 1973); Hall v. McHugh, 2010 WL 596499, at *2 n.4 (S.D. Ga. Feb. 17, 2010); U.S. ex
rel. New v. Perry, 1996 WL 420175, at *1 (D.D.C. Jan. 16, 1996).
Plaintiffs’ argument that administrative and disciplinary consequences for non-compliance
with the vaccine directive constitute irreparable harm is based on BST Holdings, LLC v.
Occupational Health & Safety Administration, 17 F.4th 604 (5th Cir. 2021).  See Pls.’ Mem. 28–
29.  But Plaintiffs’ reliance on BST Holdings is misplaced, as the OSHA requirement at issue in
that case applies to civilian employers, not service members.  What the Fifth Circuit saw as
businesses’ “nonrecoverable compliance costs”—the “business and financial effects of a lost or
suspended employee, compliance and monitoring costs associated with the Mandate, [and] the
diversion of resources necessitated by the Mandate”—and the imposition of “financial penalties”
for non-compliance, BST Holdings, 17 F.4th at 618, are not analogous to the potential
consequences service members may face for non-compliance with the military’s vaccine directive,
because, as shown above, those consequences are reparable.
Plaintiffs also argue that, like the employees in BST Holdings, they face a “choice between
their job(s) and their jab(s).”  Pls.’ Mem. 28 (quoting BST Holdings, 17 F.4th at 618).  But they
face no such choice while their exemption requests are pending.  See Ex. 17 ¶¶ 10 n.9, 14 n.13
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(App306, App310).  And although the court in BST Holdings found that the OSHA rule “threatens
to substantially burden the liberty interests” of private individuals choosing between their job or
taking a COVID-19 vaccine, BST Holdings, 17 F.4th at 618, the Fifth Circuit has recognized that
service members’ liberty interests are implicated only if the member is subject to a stigmatizing
discharge, see Sims v. Fox, 505 F.2d 857, 862–64 (5th Cir. 1974); Walker v. United States, 1998
WL 637360, at *10 n.29 (E.D. La. Sept. 16, 1998), aff’d, 184 F.3d 816 (5th Cir. 1999).  Service
members who are processed for discharge for failure to comply with the COVID-19 vaccine
directives will be processed with a General (Under Honorable Conditions) discharge.  Ex. 17 ¶¶
17–18 (App312–15).  As the Fifth Circuit has recognized, “a general discharge” from service is
not the type of stigmatizing discharge that is irreparable.  McCurdy, 359 F.2d at 493–94.
III.
The Equities and the Public Interest Weigh Against a Preliminary Injunction.
The third and fourth requirements for issuance of a preliminary injunction—the balance of
harms and whether the requested injunction will disserve the public interest—“merge when the
Government is the opposing party.”  Nken, 556 U.S. at 435.  These factors tilt decisively against
granting a preliminary injunction here.
Although Plaintiffs request that the Court enter a nationwide injunction to prevent the Navy
from implementing its COVID-19 vaccine directive, see Pls.’ Proposed Order ¶ 2, Plaintiffs fail
to discuss how such an injunction would affect the public interest, see Pls.’ Mem. 29–30.  In any
event, a nationwide injunction against the Navy’s requirements would seriously and adversely
impact the public interest and the national security of the United States.  The Secretary of Defense
“determined that mandatory vaccination against [COVID-19] is necessary to protect the Force and
defend the American people.”  Ex. 2 (further stating that “[t]o defend this Nation, we need a healthy
and ready Force”).  The Secretary made this decision after consulting with “medical experts and
military leadership,” id., including the “Chairman of the Joint Chiefs of Staff, the Secretaries of
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the Military Departments, [and] the Service Chiefs,” and considering the rise in infection rates due
to the Delta variant, Ex. 1.  The Secretary of the Navy likewise found that COVID-19 “adversely
impacts” “force readiness and mission execution” and that “[v]accination is the most effective tool
we have to prevent widespread manifestation of COVID-19 in [the] force.”  See Ex. 6 ¶¶ 2, 3
(App075).  The Court must “give great deference” to the “professional military judgments” of
these leaders when it comes to what is needed to ensure military readiness.  See Winter, 555 U.S.
at 24–25; see also Church, 2021 WL 5179215, at *18 (deferring to the judgment of military leaders
concerning the importance of vaccination for military readiness).
These professional military judgments are supported by the evidence showing COVID-
19’s harmful impact on the military.  See Church, 2021 WL 5179215, at *18 (stating the Secretary
of Defense’s decision to require vaccination is “supported by a lengthy record replete with data
demonstrating the necessity of a general vaccine mandate”).  Since the onset of the COVID-19
pandemic, hundreds of thousands of service members have been infected, thousands have been
hospitalized, and dozens have died.  Ex. 12 ¶ 3 (App263).  All but one of the service members who
have died were unvaccinated.  Id.  COVID-19 has “impacted exercises, deployments,
redeployments, and other global force management activities,” id. ¶ 6 (App264) (including
rendering one of the Navy’s eleven aircraft carriers non-operational because of an outbreak, id. ¶ 8
(App265)); caused the cancellation of “19 major training events, many of which involved
preparedness and readiness training with our foreign partners,” id. ¶ 9 (App265–66); and “required
significant operational oversight” by the most senior military leaders, id. ¶ 4 (App263).  Further,
vaccination requirements of other nations restrict the ability of unvaccinated service members to
participate in joint training exercises, which are “vital to the preservation of national security and
the protection of our foreign interests.”  Id. ¶¶ 10–11 (App266).  In addition, because health care
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providers have had to care for COVID-19 patients, certain service members have not been able to
“address non-emergency conditions and undergo routine medical and health assessments that are
required under military directives to maintain medical readiness.”  Id. ¶¶ 13–14 (App267).
Vaccinations have promoted readiness by reducing the risk of infections, hospitalizations,
and deaths of service members, reducing the number of service members required to quarantine,
and permitting the military to return to higher levels of occupancy in DoD facilities and hold in-
person training.  Id. ¶ 14 (App267).  Vaccinations also permit service members to engage in joint
training exercises with other countries that have vaccine requirements.  Ex. 15 ¶ 16 (App291).
Even an injunction of the Navy directives limited solely to the 35 Plaintiffs would harm
the national defense and the public interest.  Service members in the Navy Special Warfare
community conduct some of the military’s most sensitive missions, such as small-scale offensive
action (e.g., the Osama bin Laden mission), counterterrorism, and hostage rescue and recovery.
Ex. 15 ¶¶ 3, 14 (App282–83, App289); see also Navy SEAL, available at
https://www.navy.com/seals (last visited Dec. 9, 2021).  If they are unvaccinated, Plaintiffs could
get infected with COVID-19, become seriously ill, and face hospitalization and death—all of
which would affect the readiness of their unit to conduct these missions.  Ex. 18 ¶¶ 7–9 (App348–
51).  This concern is particularly acute for the NSW community, as service members “operate in
small units,” for instance in teams of two or four, such that “the incapacitation of one member can
significantly degrade the effectiveness of the unit and may ultimately compromise the mission.”
Ex. 14 ¶ 5 (App276–77).  And if a NSW service member is unvaccinated, is permitted to deploy,
and gets seriously ill with COVID-19 in a hostile area, a medical evacuation may risk the lives of
other service members or may ultimately not be possible, thus endangering the member’s life and
affecting the unit’s mission.  Id. ¶¶ 5, 9 (App276–78); Ex. 15 ¶¶ 15–16 (App290–91).  Given the
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types of sensitive missions conducted by NSW service members, any compromise to those
missions could have a direct impact on the national defense.
Even if service members suffer a mild case of COVID-19, they could experience the effects
of “long COVID,” which can cause various ailments, such as fatigue, functional mobility
impairments, and respiratory abnormalities for months after infection.  Ex. 18 ¶¶ 8–9 (App349–
51).  In fact, several members of the NSW community have had long COVID.  Ex. 14 ¶ 8
(App278).  Because Navy Special Warfare members “‘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,’” they are
subject to “stringent medical requirements.”  Id. ¶ 4 (App275–76) (quoting MANMED § 15-
105(1)).  A NSW service member who experiences the effects of long COVID may be medically
disqualified from service, thus degrading the readiness of the member’s unit.  See id. ¶ 7 (App277–
78) (quoting MANMED § 15-105(1)).  Relatedly, the public interest favors allowing military
leaders, not Plaintiffs, to decide who is medically qualified to perform their duty assignments and
deploy.  See Harkness, 858 F.3d at 443.
Unvaccinated service members also could spread the coronavirus to others, which is of
particular concern for the military, given that these service members work in close quarters and in
operational settings.  Ex. 18 ¶ 9 (App350–51); Ex. 12 ¶ 8 (App265); see Garland, 2021 WL
5771687, at *9 (noting the city’s “significant interest” in preventing the spread of COVID-19
among firefighters who work in “close proximity” with each other “while on duty [and] in their
fire stations”); Mass. Correction Officers Federated Union v. Baker, 2021 WL 4822154, at *8 (D.
Mass. Oct. 15, 2021) (noting the public interest in preventing the spread of COVID-19 in
“congregate facilities”).  For example, Navy SEALs may travel with their unit on boats that are
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not even six feet across or on helicopters where they are sitting shoulder-to-shoulder.  Ex. 15 ¶ 14
(App289).  Additionally, NSW personnel may 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.”  Id.  Thus, even as it relates solely to the
Plaintiffs, enjoining the Navy’s vaccine directive would significantly impact military readiness.
  Plaintiffs also request that the Court enjoin the Government from taking any adverse
employment action or discipline for non-compliance with the DoD directive.  See Pls.’ Proposed
Order ¶¶ 3(c), 4.  But the military has authority to handle matters of good order and discipline
without interference from the Judiciary.  Chappell, 462 U.S. at 300–01; Bois, 801 F.2d at 467–68.
The Navy has specific processes that must be followed prior to implementation of any discipline
or adverse employment action, see Ex. 8 (App083–87); Ex. 17 ¶¶ 15–21 (App311–19), and the
Navy’s “interest in good order and discipline is best served by adjudicating each refusal [to comply
with the vaccine directive] on a case-by-case basis,” Ex. 17 ¶ 23 (App320–21).  An injunction
prohibiting the military from initiating or completing those processes “would be a disruptive force
as to affairs peculiarly within the jurisdiction of the military authorities.”  Orloff, 345 U.S. at 95;
cf. White, 862 F.2d at 1212 (stating that Sampson “explicitly mandates that courts must consider
the disruptive effect on the administrative process of the federal government of granting
preliminary injunctions in government-employment-related cases”).  Such an injunction would be
contrary to the public interest.  See Chilcott, 747 F.2d at 33 (noting the “strong judicial policy
against interfering with the internal affairs of the armed forces”); see also Reinhard, 209 F. Supp.
3d at 221; Guerra, 942 F.2d at 275; Shaw, 2021 WL 1840397, at *10.
More generally, enjoining the DoD directive would harm the public interest in slowing the
spread of COVID-19 among millions of service members and the members of the public with
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whom they interact.  In recognition of the Government’s “compelling interest” in “[s]temming the
spread of COVID-19,” Cuomo, 141 S. Ct. at 67, numerous courts reviewing “executive action
designed to slow the spread of COVID-19” have concluded that “[t]he public interest in protecting
human life—particularly in the face of a global and unpredictable pandemic—would not be served
by” an injunction.  Tigges v. Northam, 473 F. Supp. 3d 559, 574 (E.D. Va. 2020); see also, e.g.,
Church, 2021 WL 5179215, at *18–19; Florida v. HHS, 2021 WL 5768796, at *17 (11th Cir. Dec.
6, 2021); Rydie v. Biden, 2021 WL 5416545, at *5–6 (D. Md. Nov. 19, 2021).
Plaintiffs argue that there is a public interest in ensuring that their constitutional and
statutory rights are not violated.  Pls.’ Mem. 29–30.  But as shown above, the Government is not
violating those rights.  And in any event, the balance of interests weighs heavily against the entry
of preliminary injunctive relief in light of the harms that would result to the national defense, to
the health of service members, and more broadly to the public health of the United States.
IV.
Any Relief Should Be Narrowly Tailored.
If the Court were to disagree with Defendants’ arguments, relief should be no broader than
necessary.  “A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury,” Gill
v. Whitford, 138 S. Ct. 1916, 1934 (2018), and “injunctive relief should be no more burdensome
to the defendant than necessary to provide complete relief to the plaintiffs,” Madsen v. Women’s
Health Ctr., Inc., 512 U.S. 753, 765 (1994).  Nationwide injunctions, in contrast, “take a toll on
the federal court system—preventing legal questions from percolating through the federal courts,
encouraging forum shopping, and making every case a national emergency for the courts and for
the Executive Branch.”  Trump, 138 S. Ct. at 2425 (Thomas, J., concurring). Thus, any relief
should benefit only Plaintiffs.
CONCLUSION
Accordingly, Plaintiffs’ motion for a preliminary injunction should be denied.
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Dated:  December 10, 2021
BRIAN M. BOYNTON
Acting Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director
Respectfully submitted,
/s/ Courtney D. Enlow
ANDREW E. CARMICHAEL
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 December 10, 2021, 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/Courtney D. Enlow

COURTNEY D. ENLOW (NC Bar No. 46578)
Trial Attorney
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

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