As reflected in Defendants’ opposition to Plaintiffs’ motion for an order to show cause (ECF

Summary

Defendants' Notice of the Issuance of Further Guidance Regarding the Court's Preliminary Injunction, filed February 17, 2022 as Document 124 in Navy SEALs 1-3, et al. v. Lloyd J. Austin, III, et al., Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas. The notice states that the parties understood the preliminary injunction issued January 3, 2022 (ECF No. 66) differently as to mitigation measures applying to all unvaccinated personnel. It reports that on February 16, 2022 the Under Secretary of Defense for Personnel and Readiness issued guidance, attached as Ex. A, barring adverse action against Plaintiffs based on religious accommodation requests or unvaccinated status unless the injunction is stayed or modified. It adds that Defendants sought a partial stay in the Fifth Circuit the same day. It is signed by Department of Justice counsel.

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  Case 4:21-cv-01236-O Document 124 Filed 02/17/22                      Page 1 of 3 PageID 3849



                        IN THE UNITED STATES DISTRICT COURT
                        FOR THE NORTHERN DISTRICT OF TEXAS

NAVY SEALs 1-3, et al.,

                                Plaintiffs,
                                                               Case No. 4:21-cv-01236-O
        v.

LLOYD J. AUSTIN, III in his official capacity as
United States Secretary of Defense, et al.,

                                Defendants.


           DEFENDANTS’ NOTICE OF THE ISSUANCE OF FURTHER
       GUIDANCE REGARDING THE COURT’S PRELIMINARY INJUNCTION

        As reflected in Defendants’ opposition to Plaintiffs’ motion for an order to show cause (ECF

No. 110), Defendants have consistently taken steps to comply with the preliminary injunction issued

by this Court on January 3, 2022 (ECF No. 66). Briefing in connection with that motion, however,

made clear that the parties understood the Court’s preliminary injunction differently. Defendants

explained that the Department of Defense (DoD) did “not understand th[e] order to prevent

application of other mitigation measures applicable to all unvaccinated personnel—regardless of the

reason for their being unvaccinated.” Id. at 3. Defendants further noted that they had “adopted

several medically recommended risk-mitigation measures—separate from the enjoined instructions—

for all unvaccinated service members,” including “limiting unvaccinated personnel from engaging in

certain trainings where transmission risk is high” and “requiring additional travel clearance.” Id. In

reply, Plaintiffs continued to assert that the preliminary injunction should cover policies not referenced

in the order that apply equally to all unvaccinated service members and argued that, if such policies

were not covered, then “broader relief” was necessary. ECF No. 117 at 1.

        The Court’s recent order denying Defendants’ motion for a partial stay pending appeal did not

directly address this question regarding the application of policies not referenced in the preliminary


                                                    1
  Case 4:21-cv-01236-O Document 124 Filed 02/17/22                      Page 2 of 3 PageID 3850



injunction order that apply equally to all unvaccinated service members, but the Court made clear that

it believed “the status quo” must be maintained for Plaintiffs, meaning that they should not be

“deprived of pay, training, medical treatment, [or] travel opportunities.” ECF 116 at 10. In light of

that further clarification of the injunction’s scope, Defendants respectfully provide notice of the

issuance of guidance to senior military leadership that demonstrates Defendants’ ongoing compliance

with the preliminary injunction and continued intent to comply. Specifically, on February 16, 2022,

the Under Secretary of Defense for Personnel and Readiness, see 10 U.S.C. § 136, issued the attached

guidance that applies to all DoD personnel and specifies that no “adverse action” be taken against

Plaintiffs on the basis of their requests for religious accommodation or unvaccinated status regardless

of whether the action is taken pursuant to a policy specifically referenced in the Court’s preliminary

injunction. The guidance indicates that “the operation or enforcement of any DoD or component

regulation, order, or other authority that may constitute ‘adverse action’ against the plaintiffs based on

a request for religious accommodation or unvaccinated status is prohibited” unless the Court’s

injunction is stayed or modified. See Ex. A, Memorandum from the Under Secretary of Defense for

Personnel and Readiness regarding Compliance with Preliminary Injunction Concerning Requests for Religious

Accommodation (U.S. Navy Seals 1-26 v. Biden, No. 4:21-cv-01236 (N.D. Tex.) (Feb. 16, 2022). The

directive thus applies not only to the specific requirements this Court has enjoined but to the

application of any other DoD or Service requirement that might constitute adverse action within the

meaning of this Court’s order.

        On February 16, 2022, Defendants filed an emergency motion in the U.S. Court of Appeals

for the Fifth Circuit seeking a partial stay of this Court’s January 3, 2022 Order insofar as it precludes

defendants from taking into account Plaintiffs’ vaccination status in making deployment, assignment

and other operational decisions.

Dated: February 17, 2022                         Respectfully submitted,

                                                    2
Case 4:21-cv-01236-O Document 124 Filed 02/17/22          Page 3 of 3 PageID 3851



                                 BRIAN M. BOYNTON
                                 Principle Deputy Assistant Attorney General

                                 ALEXANDER K. HAAS
                                 Director, Federal Programs Branch

                                 ANTHONY J. COPPOLINO
                                 Deputy Director

                                 /s/Andrew E. Carmichael
                                 ANDREW E. CARMICHAEL (VA Bar. No. 76578)
                                 AMY E. POWELL
                                 Senior Trial Counsel
                                 STUART J. ROBINSON
                                 Senior Counsel
                                 ZACHARY A. AVALLONE
                                 COURTNEY D. ENLOW
                                 LIAM C. HOLLAND
                                 CASSANDRA M. SNYDER
                                 Trial Attorney
                                 United States Department of Justice
                                 Civil Division, Federal Programs Branch
                                 1100 L Street, N.W.
                                 Washington, DC 20005
                                 Tel: (202) 514-3346
                                 Fax: (202) 616-8470
                                 Email: Andrew.e.carmichael@usdoj.gov

                                 Counsel for Defendants




                                    3


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