Reply in Support of Motion for Preliminary Injunction — U.S. Navy SEALs 1-26 v. Biden (N.D. Tex.)

Summary

The plaintiffs’ reply in support of their motion for a preliminary injunction, filed December 17, 2021 as Document 58 in U.S. 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, Fort Worth Division. The brief argues that the Navy has not approved any religious accommodation for COVID-19 or any other vaccine in at least the last seven years, citing a December 15, 2021 statement by Rear Admiral James Waters on separations of sailors who refuse the vaccine. It contends that the claims are ripe and that exhaustion is not required because Mindes v. Seaman does not apply to RFRA claims, and that its threshold requirements are met even if it did. It also argues that the defendants failed to satisfy strict scrutiny, that the plaintiffs suffer irreparable harm and that broad relief is warranted.

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Date: 2021-12-17

Cite this document

“Reply in Support of Motion for Preliminary Injunction — U.S. Navy SEALs 1-26 v. Biden (N.D. Tex.).” Original at archive.org, dated 2021-12-17. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-12-17-rthern-district-of-texas-fort-worth-division-u-s-navy-seals-1-26-et-al-plaintif/, SHA-256 1f0a6c6a47463c6c224bc3d44c96160b73c98dec6c13d269a130f63eab000d33.

Full text

Case 4:21-cv-01236-O Document 58 Filed 12/17/21 Page 1 of 22 PageID 2263

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-26, et al.,

Plaintiffs,
Case No. 4:21-CV-01236-O
v.
REPLY IN SUPPORT OF
MOTION FOR PRELIMINARY
JOSEPH R. BIDEN, JR., et al.,
INJUNCTION
Defendants.
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................................... ii
INTRODUCTION ....................................................................................................................... 1
ARGUMENT ............................................................................................................................... 2
I. Plaintiffs are Likely to Succeed on the Merits of Their Claims. ........................................ 2
A. Plaintiffs’ claims are ripe. ............................................................................................. 2
B. Plaintiffs’ claims do not require exhaustion. ................................................................ 3
1. Mindes does not apply. ........................................................................................... 3
2. Even if Mindes applied, its threshold requirements are met. .................................. 5
3. Plaintiffs’ claims are justiciable under Mindes’ balancing test. ............................. 7
C. Defendants’ discriminatory policies and actions violate RFRA. .................................. 8
D. Defendants failed to satisfy strict scrutiny. ................................................................... 9
II. Plaintiffs are Suffering Irreparable Harm. ........................................................................ 14
III. The Equities and Public Interest Weigh in Favor of a Preliminary Injunction. .......... 15
IV. Broad Relief Is Warranted. ......................................................................................... 16
CONCLUSION .......................................................................................................................... 17

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TABLE OF AUTHORITIES

CASES
Adair v. England, 183 F. Supp. 2d 31, 55 (D.D.C. 2002)...................................................... 4-5, 14
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ........................................................................... 15
Brannum v. Lake, 311 F.3d 1127 (D.C. Cir. 2002)......................................................................... 5
BST Holdings, LLC v. OSHA, 17 F.4th 604 (5th Cir. 2021) ......................................................... 12
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)............................................................ 6
Carr v. Saul, 141 S. Ct. 1352 (2021) .............................................................................................. 6
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).............................. 14
Church v. Biden, No. 21-2815, 2021 WL 5179215 (D.D.C. Nov. 8, 2021) ........................ 3, 15-16
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .......................................................................... 3
DeOtte v. Azar, 393 F. Supp. 3d 490 (N.D. Tex. 2019)................................................................ 14
Dilley v. Alexander, 603 F.2d 914 (D.C. Cir. 1979) ....................................................................... 4
Does 1-3 v. Mills, 142 S. Ct. 17 (2021) .......................................................................................... 9
Downen v. Warner, 481 F.2d 642 (9th Cir. 1973) ................................................................... 4-5, 6
Dr.A v. Hochul, No. 21A145, 2021 WL 5873126 (U.S. Dec. 13, 2021) ................................ 10, 14
Elrod v. Burns, 427 U.S. 347 (1976) .............................................................................................. 7
Fla. Businessmen for Free Enter. v. City of Hollywood, 648 F.3d 956 (5th Cir. Unit B
June 1981) ................................................................................................................................. 16
Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016) ............................. 16
Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) .......................................................... 10, 11
Georgia v. Biden, No. 1:21-cv-163, 2021 WL 5779939 (S.D. Ga. Dec. 7, 2021).................. 11, 16
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) .................. 10
Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989) .............................................................. 16
Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) .......................................................................... 14
Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974) ........................................................................ 6
Holt v. Hobbs, 574 U.S. 352 (2015) ............................................................................................... 6
Horvath v. City of Leander, 946 F.3d 787 (5th Cir. 2020) ............................................................. 1
Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) .................................... 15
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001)..................................................................... 14
Meister v. Tex. Adjutant General’s Dep’t, 233 F.3d 332 (5th Cir. 2000) ....................................... 5
Miller v. United States, 42 F.3d 297 (5th Cir. 1995) ...................................................................... 8

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Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) ............................................................... 3, 5, 7, 8
Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998) ....................... 16
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 833 F.2d 583
(5th Cir. 1987)............................................................................................................................. 3
Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012) .................. 4
Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279 (5th Cir. 2012) .................... 14
Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010) ............................................................... 2, 3
Rhodes v. United States, 574 F.2d 1179 (5th Cir. 1978) ................................................................ 6
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) .......................................... 9
Sambrano v. United Airlines, Inc., 21-11159, 2021 WL 5881819 (5th Cir. Dec. 13,
2021) ............................................................................................................................... 2, 15, 16
Singh v. Carter, 168 F. Supp. 3d 216 (D.D.C. 2016) ................................................................. 4, 5
Singh v. McHugh, 185 F. Supp. 3d 201 (D.D.C. 2016) ................................................................ 14
Stanford v. United States, 413 F.2d 1048 (5th Cir. 1969) .............................................................. 6
Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) ....................................................................... 11
Texas v. Becerra, No. 2:21-CV-229-Z, 2021 WL 5964687 (N.D. Tex. Dec. 15, 2021) ........ 11, 12
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ................................................................... 16
United States v. Shearer, 473 U.S. 52 (1985) ................................................................................. 8
Van Hoffburg v. Alexander, 615 F.2d 633 (5th Cir. 1980) .......................................................... 5-6
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ............................................................ 15

STATUTES
42 U.S.C. § 2000bb–1 ........................................................................................................ 3-4, 5, 10
42 U.S.C. § 2000bb–2 ..................................................................................................................... 5
42 U.S.C. § 2000cc ......................................................................................................................... 4

OTHER AUTHORITIES
Antony Sguazzin, J&J Shot Loses Antibody Protection Against Omicron in Study,
Bloomberg Quint, https://www.bloombergquint.com/business/j-j-shot-shows-no-
neutralization-against-omicron-in-lab-study (Dec. 15, 2021) .................................................. 13

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INTRODUCTION

“The right to free exercise means that government cannot force citizens to choose between

one’s faith and one’s livelihood, absent a compelling reason.” Horvath v. City of Leander, 946

F.3d 787, 799 (5th Cir. 2020) (Ho, J., concurring in part and dissenting in part). But as Defendants

do not dispute, the Navy “has not approved any religious accommodation for COVID-19 or for

any other vaccine in at least the last seven years.” Pls.’ Suppl. App. 1154. And the Navy’s own

statements prove Plaintiffs’ allegations about what is coming for them. As Rear Admiral James

Waters, the Navy’s Director of Military Personnel Plans and Policy, told reporters on December

15, 2021, “those who continue to refuse the vaccine will be required to leave the Navy.” Id. at

1153. As Rear Admiral Waters also made clear, separation is imminent and harsh: “Sailors not

eligible for retirement or separation before June 1 ‘will be processed for separation on the basis of

misconduct for refusing a lawful order to be vaccinated,’” id., and “the bulk of these separations

will happen in the time period between now and 1 June,” id. at 1154. On December 16, 2021, the

Marine Corps—a component of the Department of the Navy that is subject to its regulations—

reported it has already separated 103 service members for refusing the vaccine.1 Id. at 1205. The

Marine Corps also reported it has approved 1007 medical and administrative exemptions for the

COVID-19 vaccine, but that it has not approved a single religious accommodation for a vaccine

in the past decade. Id. at 1206. Not only that, but “Navy leaders also noted that sailors who are

separated will have to repay unfulfilled obligations such as bonuses and education benefits.” Id. at

1153–54. It is no mystery what is in store for the Plaintiffs. There is no timeline to issue final

decisions on religious accommodation requests, nor did Defendants provide one. Plaintiffs’

1
The Air Force recently discharged service members for disobeying the vaccine mandate. Suppl. App. 1159–61.

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inevitable fate may come at any moment. Nor is there any mystery what adverse actions Plaintiffs

are presently suffering.

Defendants continue to ratchet up the pressure to coerce sailors into violating their beliefs:

retaliating against Plaintiffs for even filing a religious accommodation request and repeating the

dire consequences for non-compliance over and over, while telling sailors that if they will just

compromise their beliefs, this nightmare will be over. Suppl. App. 1139–50, 1152–54. To one

being forced “to choose between the two most profound obligations they will ever assume—

holding true to their religious commitments and feeding and housing their children,” “this is the

most horrifying of Hobson’s choices.” Sambrano v. United Airlines, Inc., 21-11159, 2021 WL

5881819, at *2 (5th Cir. Dec. 13, 2021) (Ho, J., dissenting from denial of injunction pending

appeal). It is no wonder that the Plaintiffs—some of the most mentally tough individuals on the

planet—are suffering from insomnia, anxiety, and depression as a direct result of this unlawful

vaccination mandate. Some of the Plaintiffs are daily driven to distraction by the fear that the

career they have sacrificed for, and their family’s livelihood with it, may be ripped away because

of an arbitrary mandate and the U.S. Government’s blatant disregard for the law. Already, over

900 sailors previously objecting to vaccination have acquiesced, at least some of whom

presumably did so despite their beliefs. Suppl. App. 1154. How many more will fall prey to the

pressure being placed upon them? The need for injunctive relief is urgent and clear.

ARGUMENT

I. Plaintiffs are Likely to Succeed on the Merits of Their Claims.

A. Plaintiffs’ claims are ripe.

Defendants focus on formal discipline and discharge procedures, but the interim adverse

actions Plaintiffs have suffered alone constitute actual injuries. See Pearson v. Holder, 624 F.3d

682, 684 (5th Cir. 2010) (concluding that a case was ripe where the plaintiff “has shown that he

2
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‘has sustained or is immediately in danger of sustaining some direct injury as the result of the

challenged official conduct and the injury or threat of injury [is] both real and immediate, not

conjectural or hypothetical.’” (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983)).

Given the actions the Navy has already taken—and continues to take—against the Plaintiffs, no

further factual development is required. 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.”). Certainly, the threat of permanent non-deployability and the interim adverse actions

suffered by Plaintiffs (see Part I.C infra), constitute a concrete and imminent injury that is ripe for

redress. See Pearson, 624 F.3d at 684–85. Delaying adjudication of this case would simply prolong

these injuries and would cause hardship. Cf. Pearson, 624 F.3d at 685 (finding hardship present

even where injury likely to take place “in the next few years”).2

B. Plaintiffs’ claims do not require exhaustion.

1. Mindes does not apply.

Defendants argue that Plaintiffs’ claims are not justiciable for lack of exhaustion under

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), a case pre-dating RFRA. But the Fifth Circuit

has never applied Mindes in a case involving RFRA. Nor could it, as any exhaustion requirement

for a RFRA claim, even against the military, is contrary to RFRA’s plain text. RFRA commands

that, with a narrow exception, “[g]overnment shall not substantially burden a person’s exercise of

religion,” and it flatly provides that “[a] person whose religious exercise has been burdened in

violation of this section may assert that violation as a claim or defense in a judicial proceeding and

2
These injuries readily distinguish this case from Church v. Biden, No. 21-2815, 2021 WL 5179215, at *8–9 (D.D.C.
Nov. 8, 2021), where the Court concluded that federal civilian and military employees failed to demonstrate actual or
imminent harm, in part because the plaintiffs “are not ‘subject to discipline’” and because “there is ‘no basis’ on the
current record to ‘to assume’ that [their] exemption requests will be denied.” Here, by contrast, Plaintiffs have suffered
adverse consequences as a result of submitting their accommodation requests, and they have shown—through a variety
of evidence, including Defendants’ own public statements—that their requests will ultimately be denied.

3
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obtain appropriate relief against a government.” 42 U.S.C. § 2000bb–1(a), (c). Thus, RFRA does

not require a plaintiff to avail himself of any administrative process before filing suit, much less

to exhaust such a process. See Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d

829, 838 (9th Cir. 2012) (“We decline . . . to read an exhaustion requirement into RFRA where the

statute contains no such condition, see 42 U.S.C. §§ 2000bb–2000bb–4, and the Supreme Court

has not imposed one.”). To the contrary, “RFRA provides both broad protection of the free exercise

right and a broad right of action for judicial relief.” Singh v. Carter, 168 F. Supp. 3d 216, 226

(D.D.C. 2016). “Notably, Congress nowhere inserted any exception for the U.S. Armed Forces

from RFRA’s application or any exhaustion requirement, as it did, for example, in RFRA’s ‘sister

statute,’ the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C.

§§ 2000cc, et seq.” Id.

Consistent with the textual evidence, courts have refused to read an exhaustion requirement

into RFRA, even in cases involving the military. The D.C. Circuit has explained that the logic

underlying non-justiciability in some military cases is “wholly inappropriate . . . when a case

presents an issue that is amenable to judicial resolution,” recognizing that “courts have shown no

hesitation to review cases in which a violation of the Constitution, statutes, or regulations is

alleged.” Dilley v. Alexander, 603 F.2d 914, 920 (D.C. Cir. 1979); see id. (“It is a basic tenet of

our legal system that a government agency is not at liberty to ignore its own laws and that agency

action in contravention of applicable statutes and regulations is unlawful. . . . The military

departments enjoy no immunity from this proscription.” (citations omitted)). Even if military

operations require some deference from courts, “‘resolving a claim founded solely upon a

constitutional right is singularly suited to a judicial forum and clearly inappropriate to an

administrative board.’” Adair v. England, 183 F. Supp. 2d 31, 55 (D.D.C. 2002) (quoting Downen

4
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v. Warner, 481 F.2d 642, 643 (9th Cir. 1973)). In Adair, the court rejected the military’s argument

that plaintiffs with free-exercise claims should have “first exhausted their administrative remedies

by raising their personnel claims with the Board for Correction of Naval Records (‘BCNR’) before

coming to federal court.” Id. Indeed, “the Supreme Court . . . [has] heard numerous [constitutional]

challenges to military policies.” Brannum v. Lake, 311 F.3d 1127, 1130 (D.C. Cir. 2002).

RFRA also provides no safe harbor for government actions that substantially burden

religious exercise if a plaintiff still has administrative remedies pending, contrary to the Navy’s

arguments. That the Navy is sitting on a huge stack of accommodation requests and appeals while

imposing its substantial burden cannot be a defense to a RFRA claim.3 As the court in Singh put it

in rejecting military defendants’ arguments similar to the Defendants’ here, “RFRA certainly

provides no textual support for the defendants’ position that the plaintiff is required to exhaust

administrative remedies in a court-martial proceeding before bringing his constitutional and RFRA

claims before this Court.” 168 F. Supp. 3d at 226.

2. Even if Mindes applied, its threshold requirements are met.

Mindes allows for judicial review of internal military decisions when the Plaintiff has (a)

alleged a deprivation of a constitutional or statutory rights and (b) exhausted available intraservice

corrective measures. 453 F.2d at 201; Meister v. Tex. Adjutant General’s Dep’t, 233 F.3d 332, 339

(5th Cir. 2000). It is undisputed that the Plaintiffs allege a deprivation of constitutional and

statutory rights. The Fifth Circuit has recognized exceptions to the exhaustion requirement for

review of internal military decisions. Van Hoffburg v. Alexander, 615 F.2d 633, 638 (5th Cir.

3
The interim adverse actions in particular turn RFRA on its head. RFRA provides that once a plaintiff has shown a
substantial burden on his religious exercise, that burden is presumptively impermissible. The government may impose
a substantial burden only if it “demonstrates,” 42 U.S.C. § 2000bb–1(b)—in other words, “meets the burdens of going
forward with the evidence and of persuasion,” 42 U.S.C. § 2000bb–2(3)—that it can satisfy RFRA’s demanding strict-
scrutiny standard. RFRA does not authorize a “burden first, adjudicate later” approach to religious accommodation
requests like Plaintiffs’ that set forth a prima facie substantial burden.

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1980). Exhaustion is not required when administrative remedies would not provide adequate relief,

Hodges v. Callaway, 499 F.2d 417, 420–21 (5th Cir. 1974), when the petitioner may suffer

irreparable injury if he is compelled to pursue administrative remedies, Rhodes v. United States,

574 F.2d 1179, 1181 (5th Cir. 1978), when administrative appeal would be futile, Hodges, 499

F.2d at 420, and occasionally where the plaintiff has raised a substantial constitutional question,

see Downen, 481 F.2d at 643, but see Stanford v. United States, 413 F.2d 1048 (5th Cir. 1969).

The Plaintiffs fall within these exceptions. Plaintiffs have already suffered and stand to

further suffer irreparable injury should they be compelled to pursue administrative finality. See

MPI Br. Part III.A; see also Parts I.C & II infra. Further, multiple plaintiffs have been informed

by their chain of command that denials are inevitable, making the administrative process entirely

futile. See Carr v. Saul, 141 S. Ct. 1352, 1361 (2021) (“[T]his Court has consistently recognized

a futility exception to exhaustion requirements.”). And none have been approved; in the past seven

years the Navy has not granted a single religious accommodation to a vaccination requirement.

App. 295. But even putting aside the farcical nature of the accommodation process, the

“accommodation” that Defendants have announced—permanent non-deployability and removal

from the Naval Special Warfare community with attendant loss of bonuses and special and

incentive pays—is itself a farce. Forcing one to choose between “‘engaging in conduct that

seriously violates [his] religious belie[f]’ or contravening the [ ] policy and risking disciplinary

action” “easily satisfies” the substantial burden test. Holt v. Hobbs, 574 U.S. 352, 353 (2015)

(quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 720 (2014)). Finally, Plaintiffs’

claims raise substantial constitutional questions. See Parts I.C and I.D infra.

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3. Plaintiffs’ claims are justiciable under Mindes’ balancing test.

Because the threshold step of Mindes is satisfied, the next step is weighing the following

four factors to determine the justiciability of a claim regarding internal affairs: the nature and

strength of the plaintiff’s challenge to the military determination; the potential injury to the

plaintiff if review is refused; the type and degree of anticipated interference with the military

function; and the extent to which the exercise of military expertise or discretion is involved.

Mindes, 453 F.2d at 201–02. Application of these factors favors review of the Plaintiffs’ claims by

this Court.

The first factor, the nature and strength of the Plaintiffs’ challenge, favors judicial review.

As discussed below in Parts I.C and I.D, Plaintiffs claims are particularly strong on the merits.

Second, without review, the Plaintiffs face serious, irreparable injury. “The loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality). The irreparability of the Plaintiffs’

injuries is discussed below in Part II. Without review, Plaintiffs face consequences that can

adversely and permanently affect their hard-earned military careers. Therefore, the potential injury

is substantial, imminent, and irreparable. The third factor, type and degree of anticipated military

function, provides a caveat: “[i]nterference per se is insufficient since there will always be some

interference when review is granted, but if the interference would be such as to seriously impede

the military in the performance of vital duties, it militates strongly against relief.” Mindes, 453

F.2d at 201. Granting review of whether the Navy has properly followed the law in the evaluation

of religious accommodation requests does not pose a threat to the Navy’s performance of vital

duties. Such review is a legal inquiry for attorneys and judges, rather than a factual one in which

“‘commanding officers would have to stand prepared to convince a civilian court of the wisdom

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of a wide range of military and disciplinary decisions . . .’” as the Defendants allege. Miller v.

United States, 42 F.3d 297, 303 (5th Cir. 1995) (quoting United States v. Shearer, 473 U.S. 52, 58

(1985)). Further, there is no evidence that the relief requested by the Plaintiffs would cause

significant interference with the operations of the Navy. Throughout the pandemic, multiple

Plaintiffs deployed overseas, both before and after the vaccine became available, with vaccination

status being inconsequential to mission accomplishment. See Suppl. App. 1033–41, 1046–51,

1061–63, 1090–97, 1101–03, 1109–1111, 1115–18. The fourth factor also includes a nuance that

the Defendants fail to acknowledge. It requires that “[c]ourts should defer to the superior

knowledge and expertise of professionals in matters such as promotions or orders directly related

to specific military functions.” Mindes, 453 F.2d at 201–02. But as discussed in the third factor,

Plaintiffs are not asking the Court to make a determination on a specific military function, but

rather to evaluate the legality of the Navy’s farcical religious accommodation process. Therefore,

the “traditional deference” cited by the Defendants in applying Mindes to “internal military

decisions” is inapplicable, as the Plaintiffs are making a claim of legal sufficiency, not military

expertise. Therefore, because each of the four factors weigh in favor of review, Mindes does not

serve as a procedural bar to the Plaintiffs’ claims, even if it applied here.

C. Defendants’ discriminatory policies and actions violate RFRA.

Defendants’ assertion that its vaccine requirement complies with RFRA is nothing more

than smoke and mirrors. While Defendants’ regulations facially require a comprehensive RFRA

analysis, the fact that Plaintiffs have and continue to suffer numerous threatening and coercive

actions at the hands of Navy superiors, in addition to the fact that not one religious exemption

request has been approved to date, are strong indicators that Plaintiffs requests have been or will

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be arbitrarily and erroneously denied as a matter of course.4 Contrary to Defendants’ claim that

their policies disallow adverse treatment while accommodation requests are pending, the direct

evidence shows that multiple Plaintiffs suffered adverse actions for merely requesting a religious

exemption. See App. 870–980, 981–1003, 1016–22, 1004–15; Suppl. App. 1023–25, 1030–32,

1039–41, 1052–54, 1058–78, 1082–1100, 1104–08, 1115–22, 1123–27, 1131–34. Plaintiffs have

received written counseling admonishing them that they are disobeying a lawful order, which

subjects them to potential court-martial, unless their accommodation request is approved. See

Suppl. App. 1030–32, 1049–51, 1076–78, 1119–22, 1131–34. Plaintiffs have been removed from

their positions, denied opportunities, and reassigned to menial tasks like cleaning and watching

someone paint a wall, all because they had the audacity to assert their constitutional rights. See

Suppl. App. 1030–32, 1061–63, 1076–78, 1082–89, 1094–1100, 1123–27, 1131–34. Navy policies

aimed at financially harming those seeking religious exemptions were also implemented. App. 162

at ¶ 5.b. Such improper treatment has already substantially burdened Plaintiffs’ free exercise of

religion, even before certain exemption requests have been submitted and reviewed, making

Plaintiffs’ claims ripe for consideration. Defendants’ assertion that Plaintiffs must wait for an

indeterminate period of time to exhaust their intra-military remedies before presenting their claims,

despite suffering continuing harm, is entirely without merit.

D. Defendants failed to satisfy strict scrutiny.

While stemming the spread of COVID-19 is a compelling government interest, Roman

Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam), “this interest cannot

qualify as such forever,” Does 1-3 v. Mills, 142 S. Ct. 17, 21 (2021) (Gorsuch, J., dissenting from

the denial of application for injunctive relief). There is no doubt that Navy Special Warfare

4
This is also supported by the fact that the Navy essentially admits it will not grant all 3000 pending religious
exemption requests due to the sheer number alone, Opp. 24, even though that represents only 1% of the entire Navy.

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operations require our elite forces to maintain optimal health. But Defendants have substantially

burdened Plaintiffs’ religious exercise while failing to demonstrate that application of the burden

to the Plaintiffs is in furtherance of a compelling governmental interest. 42 U.S.C. §2000bb–1(b).

The Navy broadly argues that because Plaintiffs perform specialized duties in various areas of

operation, the compelling government interest is to achieve 100% vaccination compliance for the

sake of overall health and safety, despite allowing medical exemptions. Opp. 21. But “[r]ather than

rely on ‘broadly formulated interests,’ courts must ‘scrutinize[ ] the asserted harm of granting

specific exemptions to particular religious claimants.’” Fulton v. City of Philadelphia, 141 S. Ct.

1868, 1881 (2021) (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.

418, 431 (2006)).

Multiple Plaintiffs have described how their job duties, even on deployment, have been

performed safely despite the COVID-19 pandemic, regardless of their vaccination status. In fact,

the evidence shows that the Plaintiffs’ duties changed not because of the pandemic, but because

of the mandate. See supra Parts I.B & I.C. Plaintiffs continued their duties as usual during the

pandemic, performing the same missions and tasks. Thus, the evidence shows that Plaintiffs can

still perform their jobs and be deployed, even if unvaccinated. Dr.A v. Hochul, No. 21A145, 2021

WL 5873126, at *1 (U.S. Dec. 13, 2021) (Gorsuch, J., dissenting from the denial of application

for injunctive relief) (noting that unvaccinated healthcare workers served their patients without

“difficulty” until the vaccine mandate). And “[w]here the government permits other activities to

proceed with precautions, it must show that the religious exercise at issue is more dangerous than

those activities even when the same precautions are applied. Otherwise, precautions that suffice

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for other activities suffice for religious exercise too.” Tandon v. Newsom, 141 S. Ct. 1294, 1297

(2021).5

Defendants also fail to demonstrate that vaccination is the least restrictive means of

furthering the government interest. Plaintiffs are willing to adhere to numerous longstanding

mitigation measures, such as masking, teleworking, and social distancing, as well as reasonable

COVID-19 screening testing that is presently advertised as an acceptable alternative to vaccination

by the Department of Defense. Suppl. App. 1166–89. Defendants scoff at these mitigation

measures, but they have been used successfully throughout the pandemic as the SEALs carried on

their normal responsibilities. Notably, some Plaintiffs testify that they have only been subject to

COVID-19 testing after the mandate, even though testing is the best way to prevent transmission

(as the CDC admits that vaccination does not), and other Plaintiffs testify that no mitigation

measures are being taken in their jobs. See Texas v. Becerra, No. 2:21-CV-229-Z, 2021 WL

5964687, at *12 (N.D. Tex. Dec. 15, 2021) (finding it arbitrary that the federal government

“allowed regular testing as an alternative to vaccination in the OSHA mandate” but not the CMS

mandate). During a time when vaccine effectiveness is waning, such measures should not be

foreclosed, and would certainly be a less restrictive means of controlling transmission of COVID-

19 than requiring Plaintiffs to violate their deeply held beliefs. “[S]o long as the government can

achieve its interests in a manner that does not burden religion, it must do so.” Fulton, 141 S. Ct. at

1881.

Defendants fail to explain why they delayed imposing their mandate for eleven months in

the face of a supposed compelling necessity. See MPI Br. 21. They argue that “the U.S. military

5
DoD recently instructed federal contractors to stop enforcing the contractor vaccination mandate after the mandate
was enjoined nationwide by the U.S. District Court for the Southern District of Georgia. Suppl. App. 1211–15;
Georgia v. Biden, No. 1:21-cv-163, 2021 WL 5779939, *12 (S.D. Ga. Dec. 7, 2021). This further undermines any
compelling interest in 100% force vaccination, as the SEALs regularly work with contractors. Suppl. App. 1119–27.

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has no deadline for taking actions that maximize mission effectiveness and force readiness.” Opp.

25. But this casual response ignores that substantial delays in imposing a vaccine mandate fatally

undermine the government’s asserted justification. See BST Holdings, LLC v. OSHA, 17 F.4th 604,

611 & n.10–11 (5th Cir. 2021). Likewise unavailing is Defendants’ alternative argument that their

delay was justified by the rise of the Delta variant and by FDA approval of the Pfizer vaccine.

Opp. 25. Defendants do not dispute that the original virus strain was highly transmissible, that they

had authority to mandate EUA-authorized vaccines, and that during their delay both vaccination

and natural immunity increased among service members. See MPI Br. 21. That Defendants took

the luxury of eleven months to gain “additional confidence and comfort” in vaccines that the FDA

already had authorized, Opp. 25, flatly undermines their assertion of an emergency that only now

requires service members to violate their deeply held religious convictions.

Defendants next contend that they have a compelling necessity to create a crisis of

conscience even for those service members who have recovered from COVID-19 infection and

developed natural antibodies, citing “insufficient data concerning ‘natural immunity.’” Opp. 27.

But this is arbitrary, as the federal government admits natural immunity is protective, see Texas,

2021 WL 5964687, at *12, and we already know that fully vaccinated individuals contract and

transmit COVID-19.6 Moreover, the fact that the Navy continues to approve medical and

administrative exemptions while refusing to approve a single religious accommodation strongly

suggests Defendants are enforcing the vaccine mandate in an arbitrary and capricious manner. Id.

But even assuming arguendo that vaccination offers stronger or more durable immunity than

previous infection, Opp. 27, this is a difference of degree, not kind. Such hair-splitting is hardly

the showing that strict scrutiny requires. Defendants also utterly fail to explain how their rejection

6
See App. 338–43 (“People who get vaccine breakthrough infections can be contagious.”).

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of natural immunity as a substitute for the COVID vaccination squares with their acceptance of

the Johnson & Johnson vaccine, which during clinical trials—before the rise of the Delta and

Omicron variants—proved only 66.3% effective in preventing infection. Suppl. App. 1201. The

J&J shot now produces “virtually no antibody protection against the omicron coronavirus

variant.”7 Yet the J&J vaccine fulfills the Navy’s vaccination requirement, App. 145–47, while

natural immunity does not.

Defendants’ attempt to evade strict First Amendment scrutiny, Opp. 28–30, fares no better.

To begin, Defendants do not dispute that RFRA applies to their mandate. Nor do they contest the

sincerity of Plaintiffs’ beliefs, or the substantial burden that the mandate imposes upon them. Thus,

putting aside their threshold jurisdictional arguments, Defendants do not contest that imposition

of their mandate on Plaintiffs must satisfy RFRA scrutiny—a standard virtually identical to strict

scrutiny under the First Amendment. Regardless, Defendants’ policies do trigger strict First

Amendment scrutiny, as they are neither neutral nor generally applicable. An across-the-board

carve-out for vaccine trial participants—contrasted with an across-the-board denial of religious

accommodation requests—clearly treats secular conduct more favorably than comparable

religious conduct. See MPI Br. 24. Moreover, Defendants conspicuously fail to address the facially

discriminatory nature of the permanent medical-disqualification order, which applies only to

religious objectors. See id. at 25–26.

Finally, Defendants’ fallback argument that discrimination against religious exercise is

permitted in the military—or at least accorded a more deferential First Amendment review than

strict scrutiny—is meritless. Contrary to their contention, Opp. 29, multiple courts have applied

7
Antony Sguazzin, J&J Shot Loses Antibody Protection Against Omicron in Study, Bloomberg Quint,
https://www.bloombergquint.com/business/j-j-shot-shows-no-neutralization-against-omicron-in-lab-study (Dec. 15,
2021).

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strict First Amendment scrutiny to military regulations and actions that burden the free exercise of

religion. See, e.g., Hartmann v. Stone, 68 F.3d 973, 978–79 (6th Cir. 1995) (applying Lukumi

standard to Army regulation that prohibited religious practices by on-base family childcare

providers); accord Singh v. McHugh, 185 F. Supp. 3d 201, 225 (D.D.C. 2016) (applying the

Lukumi standard to Army’s refusal to accommodate Sikh religious practices); Adair, 183 F. Supp.

2d at 53 (applying the Lukumi standard to free exercise claim by chaplains against the Navy).

These decisions align with the Supreme Court’s categorical and clear instruction that “[t]he

principle that government, in pursuit of legitimate interests, cannot in a selective manner impose

burdens only on conduct motivated by religious belief is essential to the protection of the rights

guaranteed by the Free Exercise Clause.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 543 (1993).

II. Plaintiffs are Suffering Irreparable Harm.

Defendants are correct that “harm is irreparable where there is no adequate remedy at law,”

Opp. 30, but there is never an adequate remedy at law for even a brief deprivation of religious

liberty rights. Violations of First Amendment and RFRA rights satisfy the irreparable harm

requirement. Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir.

2012) (citing Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (“[C]ourts have held that a

plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA.”)); accord DeOtte

v. Azar, 393 F. Supp. 3d 490, 511 (N.D. Tex. 2019). And as Justices Gorsuch and Alito recently

agreed, the threat of loss of employment and unemployment benefits and the deprivation of

religious liberty rights each satisfy the irreparable harm prong of the preliminary-injunction

standard. Dr.A, 2021 WL 5873126, at *3 (Gorsuch, J., dissenting from the denial of application

for injunctive relief). Defendants’ mandate also imposes irreparable harm because of its coercive

effect, force a “crisis of conscience” that is itself a harm for the religious objector. As Judge Ho

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said, “it is a quintessentially irreparable injury, warranting preliminary injunctive relief.”

Sambrano, 2021 WL 5881819, at *2 (Ho, J., dissenting from denial of injunction pending appeal).

“It is difficult to imagine how a crisis of conscience, whether instigated by government or industry,

could be remedied by an award of monetary damages.” Id. at *3.

III. The Equities and Public Interest Weigh in Favor of a Preliminary Injunction.

As Plaintiffs have already noted, “it is always in the public interest to prevent the violation

of a party’s constitutional rights.” Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458

n.9 (5th Cir. 2014) (citing Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)). Defendants

assert that the Court “must ‘give great deference’ to the ‘professional military judgments’ of

[military] leaders when it comes to what is needed to ensure military readiness.” Opp. 36 (quoting

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). But Winter involved balancing

potential harm to marine mammals with the Navy’s ability to conduct sonar training—there were

no constitutional rights at issue. Nothing in Winter suggests that the deference given to the military

in balancing sonar training with a speculative harm to marine mammals that had not been

documented in 40 years of training should apply when the countervailing interest is an actual

violation of a constitutionally protected right. Winter itself noted that “military interests do not

always trump other considerations.” 555 U.S. at 26.

Defendants also cite the public-interest analysis in Church. Opp. 36. But Church construes

the plaintiffs’ interest as “a pecuniary interest in federal employment while their exception requests

are pending,” noting that the prospect of “adverse employment action” in that case is “remote.”

2021 WL 5179215 at *18. Here, Plaintiffs assert not merely pecuniary loss, but the deprivation of

First Amendment freedoms, which are always in the public interest to protect. Furthermore,

Plaintiffs seek an injunction to preserve the status quo—not to upend it. See Georgia, 2021 WL

5779939, at *12 (“Enjoining EO 14042 would, essentially, do nothing more than maintain the

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status quo; entities will still be free to encourage their employees to get vaccinated, and the

employees will still be free to choose to be vaccinated. In contrast, declining to issue a preliminary

injunction would force Plaintiffs to comply with the mandate . . . . Additionally, requiring

compliance with EO 14042 would likely be life altering for many of Plaintiffs’ employees.”)

Because Plaintiffs have a substantial likelihood of success on the merits, “harm to [Defendants]

from delaying enforcement is slight.” Fla. Businessmen for Free Enter. v. City of Hollywood, 648

F.3d 956, 959 (5th Cir. Unit B June 1981).

IV. Broad Relief Is Warranted.

As this Court stated in Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660, 695 (N.D.

Tex. 2016), “‘[D]istrict courts enjoy broad discretion in awarding injunctive relief.’ Nat’l Min.

Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408 (D.C. Cir. 1998). ‘. . . It is not beyond

the power of a court, in appropriate circumstances, to issue a nationwide injunction.’ Texas v.

United States, 809 F.3d 134, 188 (5th Cir. 2015).” Furthermore, as this Court also noted, “[w]hen

a reviewing court determines that agency regulations are unlawful, the ordinary result is that the

rules are vacated—not that their application to the individual petitioners is proscribed.” Id.

(quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)).

The Defendants’ regulations facially violate the Free Exercise Clause and RFRA. See MPI

Br. 9, 25–26 (noting that Trident Order #12, § 6.D and MANMED ¶ n(9) establishes that Navy

Special Operations Designated Personnel that receive a religious exemption to the vaccine

mandates “will still be medically disqualified,” while those with medical exemptions are not

automatically medically disqualified.). Such facially illegal directives should be vacated.

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CONCLUSION

This Court should grant the motion for a preliminary injunction.

Respectfully submitted this 17th day of December, 2021.

KELLY J. SHACKELFORD /s/ Heather Gebelin Hacker
Texas Bar No. 18070950 HEATHER GEBELIN HACKER
JEFFREY C. MATEER Texas Bar No. 24103325
Texas Bar No. 13185320 ANDREW B. STEPHENS
HIRAM S. SASSER, III Texas Bar No. 24079396
Texas Bar No. 24039157 HACKER STEPHENS LLP
DAVID J. HACKER 108 Wild Basin Road South, Suite 250
Texas Bar No. 24103323 Austin, Texas 78746
MICHAEL D. BERRY Tel.: (512) 399-3022
Texas Bar No. 24085835 heather@hackerstephens.com
JUSTIN BUTTERFIELD andrew@hackerstephens.com
Texas Bar No. 24062642
FIRST LIBERTY INSTITUTE Attorneys for Plaintiffs
2001 W. Plano Pkwy., Ste. 1600
Plano, Texas 75075
Tel: (972) 941-4444
jmateer@firstliberty.org
hsasser@firstliberty.org
dhacker@firstliberty.org
mberry@firstliberty.org
jbutterfield@firstliberty.org
rbyron@firstliberty.org

JORDAN E. PRATT
Florida Bar No. 100958* **
FIRST LIBERTY INSTITUTE
227 Pennsylvania Ave., SE
Washington, DC 20003
Tel: (972) 941-4444
jpratt@firstliberty.org

*Admitted pro hac vice
** Not yet admitted to the D.C. Bar, but
admitted to practice law in Florida. Practicing
law in D.C. pursuant to D.C. Court of
Appeals Rule 49(c)(8) under the supervision
of an attorney admitted to the D.C. Bar.

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Case 4:21-cv-01236-O Document 58 Filed 12/17/21 Page 22 of 22 PageID 2284

CERTIFICATE OF SERVICE

I hereby certify that on December 17, 2021, I electronically filed the foregoing document

through the Court’s ECF system, which automatically notifies counsel of record for each party.

/s/Heather Gebelin Hacker
HEATHER GEBELIN HACKER

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