Defendants' Opposition to Plaintiffs' Motion for Order to Show Cause — Navy SEALs v. Austin (Document 110)

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Defendants' Opposition to Plaintiffs' Motion for an Order to Show Cause, Document 110 filed 02/07/22 in Navy SEALs 1-26, et al. v. Lloyd J. Austin, III, et al., Case No. 4:21-cv-01236-O, U.S. District Court for the Northern District of Texas. Defendants state that the Navy has engaged at all levels to ensure compliance with the preliminary injunction (Opinion, ECF No. 66), and that most of the actions Plaintiffs identify predate the injunction, a few trace to COVID-19 mitigation measures applicable to all unvaccinated personnel, and some allegations are incorrect. The brief relies on the declaration of Captain Christopher D. Brown, Chief of Staff for Navy Special Warfare Command, and concludes that the Court should deny the motion to show cause. It is signed /s/Amy Powell, Counsel for Defendants.

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

NAVY SEALs 1-26, et al.,
Plaintiffs,

v.

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

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

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION
FOR AN ORDER TO SHOW CAUSE

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TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................................... 1
BACKGROUND AND COMPLIANCE .................................................................................................... 1
ARGUMENT..................................................................................................................................................... 4
I.
Legal Standards ....................................................................................................................... 4
II.
Plaintiffs’ Motion for an Order to Show Cause and to Hold Defendants in
Contempt is Meritless as a Matter of Fact and Law. ......................................................... 6
CONCLUSION ............................................................................................................................................... 13
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TABLE OF AUTHORITIES

CASES
Am. Airlines, Inc. v. Allied Pilots Ass’n,
228 F.3d 574 (5th Cir. 2000) ........................................................................................................................ 5
Church & Dwight Co., Inc. v. SPD Swiss Precision Diagnostics GmbH,
 No. 14-CV-585 (AJN), 2017 WL 3605583, at *4 (S.D.N.Y. July 26, 2017)  ......................................... 6
Crowe v. Smith,
151 F.3d 217 (5th Cir. 1998) ........................................................................................................................ 4
Dodson v. U.S. Gov’t, Dep’t of Army,
988 F.2d 1199 (Fed. Cir. 1993) .................................................................................................................. 13
Dondi Props. Corp. v. Com. Sav. & Loan Ass’n,
121 F.R.D. 284 (N.D. Tex. 1988) ................................................................................................................ 4
Hornbeck Offshore Servs., L.L.C. v. Salazar,
713 F.3d 787 (5th Cir. 2013) ................................................................................................................ passim
In re U.S. Bureau of Prisons, Dep’t of Justice,
918 F.3d 431 (5th Cir. 2019) ........................................................................................................................ 5
Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc.,
86 F.3d 464 (5th Cir. 1996) ..................................................................................................................... 5, 6
Roadway Express, Inc. v. Piper,
447 U.S. 752 (1980) ....................................................................................................................................... 4
Taggart v. Lorenzen,
139 S. Ct. 1795 (2019) ................................................................................................................................... 5
Travelhost, Inc. v. Blandford,
68 F.3d 958 (5th Cir. 1995) .......................................................................................................................... 5
United States v. United Mine Workers of Am.,
330 U.S. 258 (1947) ....................................................................................................................................... 5
Young v. U.S. ex rel. Vuitton et Fils S. A.,
481 U.S. 787 (1987) ....................................................................................................................................... 5
FEDERAL RULES
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Fed. R. Civ. P. 65(d) .......................................................................................................................................... 5

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INTRODUCTION
 On January 3, 2022, this Court entered a preliminary injunction enjoining Defendants “from
applying MANMED § 15-105(3)(n)(9); NAVADMIN 225/21; Trident Order #12; and NAVADMIN
256/21 to Plaintiffs” and “from taking any adverse action against Plaintiffs on the basis of Plaintiffs’
requests for religious accommodation.”  Opinion, ECF No. 66, at 26 (“Op.”).  The Navy has
consistently engaged at all levels to ensure compliance with that directive.
Plaintiffs’ motion for an order to show cause and to hold Defendants in contempt fails to
show that Defendants are taking any action in violation of the Court’s injunction.  Plaintiffs submit
allegations from six of the thirty-five plaintiffs, but most of the actions identified by Plaintiffs predate
the injunction and so cannot be a violation of it.  A few other actions are traceable only to COVID-
19 mitigation measures that are applicable to all unvaccinated personnel and that are distinct from the
enjoined policies.  Finally, as explained below, some of the allegations are incorrect.  Plaintiffs have
thus shown no basis for an order to show cause, let alone a finding of contempt.  To the extent further
clarification of the scope of the Court’s injunction is needed, Defendants stand willing to engage with
Plaintiffs on that issue.
BACKGROUND AND COMPLIANCE
Since the Court entered the injunction, Defendants have filed a notice of appeal and a motion
to partially stay the injunction (now fully briefed and pending), as well as a motion to dismiss.  ECF
Nos. 82, 85, 106.  Plaintiffs have filed an amended complaint, a motion for class certification, and a
motion for a class-wide injunction.  ECF Nos. 84, 89, 104.
While the case continues, Defendants have made every effort to comply fully with the Court’s
order.  As the Chief of Staff for Navy Special Warfare Command (“NSWC”) explains, compliance
with the preliminary injunction order began immediately upon its issuance.  See Ex. 1, Decl. of Captain
Christopher D. Brown, ¶¶ 3-4 (App003-006).  Upon receiving the Court’s injunction, NSWC notified
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its major commanders, commanding officers and key advisory staff of the order and had them execute
non-disclosure agreements to comply with the protective order previously entered in this case
shielding the identity of Plaintiffs from unauthorized disclosure.  Id. ¶ 3 (App003-004).  NSWC also
provided units and commands with clear and consistent guidance regarding their obligations to adhere
to the preliminary injunction and routinely followed up regarding their compliance efforts.  Id. ¶ 3
(App005).  Each Commodore discussed the injunction with their staff judge advocate and determined
whose involvement was needed to ensure that no adverse action could be taken.  Id.
The Navy’s compliance efforts have been complicated by at least two factors.  First, Plaintiffs’
desires to keep their identities and their connection to this lawsuit confidential make implementation
more challenging, and Defendants have carefully complied with the Court’s protective order as well.
Id. ¶ 4 (App005-006).  Many of Plaintiffs’ units are small, and unit commanders have been cautious in
disclosing the identities of Plaintiffs in order to preserve their anonymity.  Id.  Some actions that
Plaintiffs perceive as being required by the preliminary injunction are controlled by various Navy
components outside of NSWC.  Id.  Accordingly, it is difficult to predict who might have a need to
know Plaintiffs’ identities and sign the non-disclosure ahead of time in order to comply with the
injunction.  But to preserve Plaintiffs’ anonymity, unit commanders have generally not disclosed
Plaintiffs’ identity to their peer groups.  Id. ¶ 5 (App007).  Accordingly, the Plaintiff would need to
bring any such issues to the Navy chain of command for resolution.  Id.  If any Plaintiff informs their
command of a problem, each Plaintiff’s commodore stands ready to ensure no adverse action can be
finalized against them.  Id. n.9.  In the meantime, the protective order means that there are many
people around Plaintiffs who are unaware of the injunction.
Second, the Navy has sought clarification to ensure that its actions are fully in compliance with
the Court’s orders.  See Defs.’ Br. ISO Stay Mot., ECF No. 86, at 1.  For example, the Court enjoined
Defendants from applying specified instructions to Plaintiffs and from taking “any adverse action
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against Plaintiffs on the basis of Plaintiffs’ requests for religious accommodation.”  Op. at 26.  DoD
does not understand this order to prevent application of other mitigation measures applicable to all
unvaccinated personnel—regardless of the reason for their being unvaccinated.  The Navy has not
taken any adverse action against any Plaintiff based on the enjoined instructions, or on the basis of
their request for accommodation.  Brown Decl. ¶ 6 (App008).  The Navy has, however, adopted
several medically recommended risk-mitigation measures ─ separate from the enjoined instructions ─
for all unvaccinated service members, regardless of whether they have an exemption, have an
exemption request pending, have been denied an exemption, or are unvaccinated for any other
reasons.  Id. ¶¶ 6-7(App008-009).  These measures may include limiting unvaccinated personnel from
engaging in certain trainings where transmission risk is high; requiring additional travel clearance; and
requiring COVID-19 testing in some circumstances.  Id.  (And, indeed, these mitigation measures are
along the lines of what Plaintiffs advocated as less restrictive alternatives in their original motion and
reply.  ECF No. 16, at 6; ECF No. 58, at 11).  DoD does not understand those mitigation measures
to be enjoined when they are not contained in the orders specified by the Court in its injunction.
Brown Decl. ¶ 7 (App008-009).
Plaintiffs’ motion alleges that six of the thirty-five plaintiffs are being injured by conduct that
violates the injunction.  Pls.’ Br. at 5-9, ECF No. 96.  SEAL 13 alleges that he continues in the same
status as prior to the injunction, and that although he was permitted to take an exam, he is ineligible
for promotion.  Id. at 8.  SEAL 14 alleges that he continues in the same status and has not gotten new
orders for Officer Candidate School.  Id. at 8.  SEAL 21 alleges that he continues to be unable to
participate in training due to a lack of gear, was initially denied the ability to take an exam that he was
later permitted to take, and is ordered to pick up trash.  Id. at 7.  SEAL 22 alleges that he has not been
restored to his command, nor transferred and that he was not permitted to attend a particular training
event.  Id. at 9.  SEAL 26 alleges that he has been denied the ability to travel for medical treatment.
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Id. at 5-6.  Diver 2 alleges that he has not yet been re-assigned, and continues to need permission to
leave the base.  Id. at 6-7.  As set forth below, none of these alleged actions gives rise to a claim of
contempt, because they concern actions taken prior to the Court’s order, do not implicate the policies
enjoined, or are incorrect factually.
Plaintiffs brought this motion without informing Defendants’ counsel of the factual basis for
the motion, and they declined to attempt to resolve any alleged compliance issues without litigation.
ECF No. 95, at 4.  Merely providing notice of the motion, without engaging in consultation regarding
the basis for the motion, does not comport with Plaintiffs’ counsel’s obligations under Local Rule
7.1(a) and their motion should be denied on this basis alone.  Dondi Props. Corp. v. Com. Sav. & Loan
Ass’n, 121 F.R.D. 284 (N.D. Tex. 1988).1
ARGUMENT
I.
Legal Standards
Because a district court’s inherent powers to punish for contempt, Hornbeck Offshore Servs.,
L.L.C. v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013) (citing Roadway Express, Inc. v. Piper, 447 U.S. 752,
764 (1980)), are “shielded from direct democratic controls,” the Supreme Court instructs that “they
must be exercised with restraint and discretion.”  Id.  Rather than stemming from a “broad
reservoir,” the court’s contempt powers are “implied power[s,] squeezed from the need to make the
court function.”  Crowe v. Smith, 151 F.3d 217, 226 (5th Cir. 1998) (citation omitted).

1 In Dondi Props. Corp., the Northern District adopted standards for attorney conduct in civil
litigation.  Among other obligations, the Court stated that “[a] lawyer owes, to opposing counsel, a
duty of courtesy and cooperation, the observance of which is necessary for the efficient
administration of our system of justice and the respect of the public it serves.”  121 F.R.D. at 287.
The Court denied the pending discovery motion in that matter, in large part because counsel had
failed to have more than a pro forma meet and confer, explaining that “the purpose of the conference
requirement is to promote a frank exchange between counsel to resolve issues by agreement or to at
least narrow and focus the matters in controversy before judicial resolution is sought.”  Id. at 289.
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“A party commits contempt when he violates a definite and specific order of the court
requiring him to perform or refrain from performing a particular act or acts with knowledge of the
court's order.”  Hornbeck Offshore Servs., 713 F.3d at 792 (quoting Travelhost, Inc. v. Blandford, 68 F.3d
958, 961 (5th Cir. 1995)); In re U.S. Bureau of Prisons, Dep’t of Justice, 918 F.3d 431, 439 (5th Cir. 2019).
For civil contempt, this must be established by clear and convincing evidence.  Hornbeck Offshore
Servs., 713 F.3d at 792.  To support a contempt finding, the order must delineate “definite and
specific” mandates that the defendants violated.  See Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d
574, 578 (5th Cir. 2000); Fed. R. Civ. P. 65(d) (injunctions must “state its terms specifically” and
“describe in reasonable detail—and not by referring to the complaint or other document—the act or
acts restrained or required”); Hornbeck Offshore Servs., 713 F.3d at 792.  Although “good faith” alone
is not a full defense to contempt, “principles of ‘basic fairness require that those enjoined receive
explicit notice’ of ‘what conduct is outlawed’ before being held in civil contempt” and that “civil
contempt ‘should not be resorted to where there is a fair ground of doubt as to the wrongfulness of the
defendant’s conduct.’”  Taggart v. Lorenzen, 139 S. Ct. 1795, 1801-02 (2019) (explaining that an
“objectively reasonable basis” for an interpretation of a court order forecloses contempt) (brackets
and citations omitted).  Thus, in order to find contempt, “the injunction would have had to include
an express or clearly inferable obligation” that was violated.  See Hornbeck Offshore Servs., 713 F.3d at
793.2
“Judicial sanctions in civil contempt proceedings, may in a proper case, be employed for
either or both of two purposes: to coerce the defendant into compliance with the court’s order, and
to compensate the complainant for losses sustained.” Am. Airlines, Inc., 228 F.3d at 585 (quoting

2 The Court has other powers short of contempt available to ensure compliance, including
clarification of its order.  Cf. Nat. Gas Pipeline Co. of Am., 86 F.3d at 467; Young v. U.S. ex rel. Vuitton et
Fils S. A., 481 U.S. 787, 801 (1987) (“[O]nly [t]he least possible power adequate to the end proposed
should be used in contempt cases” (citation omitted)).
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United States v. United Mine Workers of Am., 330 U.S. 258, 303–04 (1947)).  Inherent powers to
sanction “may be exercised only if essential to preserve the authority of the court and the sanction
chosen must employ ‘the least possible power adequate to the end proposed.’”  Nat. Gas Pipeline Co.
of Am. v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir. 1996).  Thus, “[i]f there is a reasonable
probability that a lesser sanction will have the desired effect, the court must try the less restrictive
measure first.”  Id.
II.
Plaintiffs’ Motion for an Order to Show Cause and to Hold Defendants in
Contempt is Meritless as a Matter of Fact and Law.

Plaintiffs’ allegations that Defendants are in contempt of the Court’s order are incorrect.  The
actions Plaintiffs identify are not in conflict with the injunction; indeed, many concern military
decisions made prior to the injunction.  See Church & Dwight Co., Inc. v. SPD Swiss Precision Diagnostics
GmbH, No. 14-CV-585 (AJN), 2017 WL 3605583, at *4 (S.D.N.Y. July 26, 2017) (“Quite simply, the
Court is aware of no authority . . . suggesting that a party may ‘violate’ a court order prior to its effective
date, let alone in such a manner as to warrant a contempt order.”).  And allegations concerning the
remaining actions either are incorrect, do not implicate policies or describe adverse action subject to
the Court’s order, or describe action unrelated to Plaintiffs’ requests for religious accommodations.
Plaintiffs’ motion would expand the injunction beyond Plaintiffs’ asserted goal of preserving the
“status quo” until the merits of their RFRA claim is resolved.  See ECF No. 99, at 12 (aruging that the
injunction only preserves the status quo).  They effectively seek an affirmative injunction that would
oversee details of these SEALs’ military career, including how quickly they are considered for various
positions, when they are issued gear, and what specific COVID-19 mitigation measures may be
lawfully applied to them in multiple possible scenarios.  Such relief is inappropriate, as Defendants
have explained in seeking a partial stay of the injunction pending appeal, see ECF Nos. 86, 102, and
the Court should not expand its prior injunction by retroactively enjoining assignment/mitigation
actions for unvaccinated personnel that were in place before the Court’s order.  And at a minimum,
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Plaintiffs cannot show by clear and convincing evidence that Defendants have violated “an express or
clearly inferable obligation” in the text of the Court’s injunction that could give rise to a showing of
contempt.  See Hornbeck Offshore Servs., 713 F.3d at 793.
SEAL 13
SEAL 13 indicates that he was removed from a course.  Pls.’ Br. at 8.  But that action was
taken several months prior to the Court’s injunction and so does not violate that injunction.  Ex. 2,
Decl. of Ronald Harrison ¶ 5 (App017-018).  No action with respect to SEAL 13 has been taken since
the injunction was issued, and no new request was acted on by his command.  Brown Decl. ¶ 8
(App009-010).
SEAL 13 additionally asserts that he “cannot promote,” but he does not explain the basis for
that belief, nor does he describe any action taken against him since the injunction issued.  ECF No.
97, at App. 0023.  His concerns about promotion are speculative, and they overlook a crucial fact.
SEAL 13 submitted his voluntary separation request on December 14, 2021, with a currently
anticipated separation date of May 31, 2022.  Harrison Decl. ¶ 6 (App018-019).  SEAL 13 commenced
terminal leave in January, at his own request.  Id.  Thus, as of today, SEAL 13 is unable to promote
because he is voluntarily separating from the Navy, and there is no indication that Defendants have
taken any action against him.  Moreover, SEAL 13 admits that he took the Navy-wide advancement
exam on January 26, 2022; the results for that exam would be released around November 2022.
Therefore, the earliest Navy SEAL 13 could be advanced to the next rank is January 2023, well after
his elected separation date.  Id.
SEAL 14
SEAL 14 asserts that his orders to attend Officer Candidate School were cancelled. See ECF
No. 97, at App. 0025; Ex. 3, Decl. of Lieutenant Commander Forrest S. Crowell (with respect to
SEAL 14) ¶ 5 (App022) (“SEAL 14 Crowell Decl.”).  But that cancellation occurred prior to the
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Court’s injunction, and so the cancellation does not violate the Court’s order.  No relevant new action
with respect to SEAL 14 has been taken since the injunction was issued, and no new request was acted
on by his command.  Brown Decl. ¶ 8 (App009-010).  SEAL 14 is presently assigned as a Joint
Terminal Attack Controller Instructor and Evaluator, SEAL 14 Crowell Decl. ¶ 3 (App022), and is
not subject to any adverse action.
Plaintiffs argue that defense counsel “conceded” than the cancellation of orders would violate
the injunction.  That is inaccurate.  “Cancelling PCS orders” is one example of conduct that
Defendants’ counsel noted should be permitted but arguably would violate the injunction going
forward.  See ECF No. 97, at App. 0010.  But SEAL 14 does not allege that his orders were cancelled
after the injunction issued.  Again, Plaintiffs now appear to pivot from their position that the injunction
should preserve the status quo to a view that a new injunction should be entered that affirmatively
reverses past actions never enjoined by the Court.  There is no ground for a finding of contempt based
on actions that were not previously enjoined.
SEAL 21
SEAL 21 points to actions taken months prior to the injunction.  Pls.’ Br. at 7; Ex. 4, Decl. of
Andrew Sparks ¶ 5 (App030-031) (removal occurred in October 2021).  In October 2021, SEAL 21
was reassigned to the operations department within SEAL Team FIVE.  Sparks Decl. ¶ 5.   SEAL 21
appears to object that he has not been re-assigned back to his old platoon to participate in training,
Pls. Br. at 7, an affirmative action that does not seem to be required by the Court’s order.  Training
with his former unit would be complicated or prohibited by COVID mitigation measures unrelated
to his exemption request or the particular orders enjoined by the Court, and would undermine unit
cohesion (by, for example, having a team member move in and out of a unit or be unavailable for
some trainings).  Sparks Decl. ¶¶ 5-6 (App030-032).  In any event, actions take prior to the injunction
do not violate that order.
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SEAL 21’s other allegations do not describe adverse action either.  Most involve mere
statements by his peers, who would not be privy to his identity as a plaintiff in this lawsuit and who
cannot take adverse action against him.  For example, SEAL 21 indicates that he was initially denied
the ability to take an advancement exam by one of his peers, a command career counselor performing
related duties, who mistakenly believed that SEAL 21 had “refus[ed]” the vaccine and sent him an
email quoting the enjoined order.3  Brown Decl. ¶ 5 (App006-007); Sparks Decl. ¶ 7 (App032).
Because of the protective order, that individual would have been unaware that SEAL 21 was covered
by the injunction, and Defendants ensured that SEAL 21 was in fact able to take the exam.  Id.
Defendants cannot be held in contempt for a partially incorrect statement by one of SEAL 21’s peers, a
statement that was never implemented by Defendants.  Similarly, SEAL 21 points to an administrative
note on his Chief examination referring to his vaccine status and NAVADMIN 225/21.  However,
“[t]he inclusion of this note was carried out by lower ranking personnel who carry out the Navy-wide
Chiefs exam who were not privy to SEAL 21’s identity as a Plaintiff in this lawsuit.”  Brown Decl. ¶ 5
(App007).  And the note itself is not an adverse action, because the note “would have to be routed
through SEAL 21’s Commodore, who is aware of the injunction in this lawsuit and is poised to ensure
no adverse action is taken on account of SEAL 21’s religious accommodation request.”  Brown Decl.
¶ 5 (App007-008).

3 On December 1, 2021, Plaintiffs filed a motion to proceed under a pseudonym arguing that
based on “their consequential positions in the United States Navy, protection of the Plaintiffs’
identities is critical to the operational security of their individual missions.”  ECF No. 26, at 1-2.
Moreover, Plaintiffs asserted that disclosure of their names would “jeopardize their personal safety
and the safety of their family by revealing their position to enemy forces.”  Plaintiffs, however, have
disclosed the names and email addresses of their peers on the public docket.  Defendants opposed
Plaintiffs’ motion on December 16, 2021.  ECF No. 50.  Plaintiffs’ conduct is further evidence that
their motion, still pending before the Court, should be denied; there is no basis for protecting
Plaintiffs’ identities.
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SEAL 21 further argues that he did not receive an evaluation he should have gotten, and he
does not like his current job duties, which include picking up trash.  Defendants have confirmed that
SEAL 21 received a positive performance evaluation; he was out on leave when the evaluation was
completed, but it is available to him now.  Sparks Decl. ¶ 9 (App033).  The duties assigned to both
SEAL 21 and his peers are typical and appropriate duties within the Navy, and in any event are not a
violation of the injunction because they are not adverse and are not related to their exemption requests.
Sparks Decl. ¶ 8 (App032-033); Brown Decl. ¶ 4 n8 (App006).
SEAL 22
Like the SEALs discussed above, SEAL 22 concedes that his orders were cancelled and that
he was reassigned months prior to the preliminary injunction.  Pls. Br. at 9; see Ex. 5, Decl. of
Lieutenant Commander Forrest Crowell [with respect to SEAL 22] ¶ 5 (App037) (“SEAL 22 Crowell
Decl.”).   No subsequent actions have been taken against SEAL 22 with regard to his transfer.  Id.
SEAL 22 also alleges that he was not permitted to attend a training because of his religious
exemption request.  Pls.’ Br. at 9.  That is incorrect.  SEAL 22 was unable to attend that particular
training because he is unvaccinated and because COVID-19 mitigation measures applicable to all
unvaccinated personnel prohibit those personnel from attending trainings unless certain conditions
are met.  SEAL 22 Crowell Decl. ¶ 7 (App038-039).  Specifically, the Undersecretary of Defense
implemented a requirement that the DoD Component Commander personally review and approve
any waiver for unvaccinated special operation personnel to travel, based on the determination that the
travel is mission essential to military operations and cannot be conducted by anyone other than the
identified traveler.  Id.  The training in question was not mission critical and could be conducted by
other personnel, and so, for that reason, Navy SEAL 22’s travel to the training was denied.  Id.  And
that denial was not an adverse action based on SEAL 22’s religious accommodation request.  Id.  The
Court did not enjoin the DoD policy governing this travel request.
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SEAL 26
Plaintiffs assert that Defendants are denying Navy SEAL 26 permission to travel to a treatment
program for traumatic brain injuries.  Pls.’ Br. at 5.  Defendants take this concern very seriously and
have concluded that Seal 26 was not denied permission to travel for medical treatment.  Defendants
were unable to secure permission for him to travel in time for his preferred start date at his preferred
facility, but have since secured him a start date of March 27, 2022.  Ex. 6, Decl. of Louis P. McFadden
III ¶¶ 5-11 (App053-App055).
SEAL 26 is unvaccinated and is thus subject to the DoD policy limiting official travel of all
unvaccinated personnel to mission-critical travel.  McFadden Decl ¶ 5 (App053).  He is eligible for
treatment at a facility near his duty station, but instead elected to attend a distant facility for which a
waiver or exception would be required.  Id.  SEAL 26’s command was and is committed to getting
him into the requested program, but was unable to secure the required waiver in the limited time
remaining when he submitted a request.  Id.  ¶¶ 5-11 (App053-055).4  SEAL 26 has now routed his
new exception request for travel, and the command endorsement has been forwarded with a
recommendation that it be approved.  Id.  ¶ 8.  From November 23, 2021 to the present, SEAL 26’s
command has diligently worked to obtain approval for SEAL 26 to attend the treatment program in
the proper manner and in accordance with applicable travel policies.  Id. ¶¶ 7-8, 11 (App054-055).
None of Defendants’ actions, however, was based on the enjoined policies, on SEAL 26’s religious
exemption request, or on his participation in this lawsuit.  As a result, Defendants’ actions do not
violate the injunction.

4 SEAL 26 notes that officers communicated with the treatment facility in an effort to obtain
information to get the waiver approved.  This sort of communication is routine, and was in support
of SEAL 26’s request.  McFadden Decl. ¶¶ 9-10 (App054-055).
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DIVER 2
Diver 2 alleges that “[s]ince the preliminary injunction was entered, nothing has changed”
regarding actions previously taken against him.  ECF No. 97, at App. 007.  In making that argument,
Diver 2 acknowledges that his Permanent Change of Station was delayed prior to the injunction—and
so, for the reasons described above, that action did not violate the Court’s injunction.  Id. at App.
0006-0007.  He remains at the facility where he graduated from Expeditionary Combat Skills training,
and remains assigned to Supply duties.  Ex. 7, Decl. of Matthew Williams ¶¶ 2, 4 (App058-060).  His
orders have been extended or modified several times.  Although the last extension came after the
injunction, his most recent orders currently state that he is to report to SEAL Delivery Vehicle Team
One no later than April 01, 2022.  Id. ¶ 4 (App059-060); see also ECF No. 87, at App.044 (indicating
that he will be sent to his duty station).  No adverse action with respect to Diver 2 has been taken
since the injunction was issued.
Diver 2 also alleges that he will lose certain pay benefits because he has not been diving.  ECF
No. 97, at App. 007.  He argues that, if his qualifications were to lapse, he could lose eligibility for his
special dive pay.  In response to those concerns, his command is currently making plans to arrange
for him to complete a qualifying dive.  Williams Decl. ¶ 5 (App060).  If he were unable to complete
his qualifying dive for some reason or otherwise lost access to special pay, there still would be no
adverse action—much less adverse action based on his religious accommodation request—and thus
even this hypothetical future action would not violate the injunction.
Diver 2 also alleges that he is not permitted to leave base for any reason without routing a chit
to the commanding officer to get permission.  ECF No. 97, at App. 007.  That is incorrect.  Diver 2
is subject to the same liberty or leave policy as similar ECS students, and in fact he frequently leaves
base or takes leave.  See Williams Decl. ¶¶ 6-7 (App060-061).  There are a number of base-specific
COVID-mitigation policies with which Diver 2 must comply.  For example, Diver 2 was required to
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complete a quarantine after returning from extended leave.  Id.  And, like all unvaccinated personnel,
he was required to present a recent negative COVID test in order to enter a facility on this base.  Id.
¶ 8 (App061).  Neither requirement is based on his religious accommodation request, and neither
requirement is an adverse action within the meaning of the Court’s injunction.  Id.  Indeed, Plaintiffs
previously suggested similar measures would be less restrictive means of advancing the military’s
compelling interest in slowing the spread of COVID-19.
***
Defendants have acted at all times in good faith to implement this Court’s injunction.  See, e.g.,
Dodson v. U.S. Gov’t, Dep’t of Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993) (“[M]ilitary administrators are
presumed to act lawfully and in good faith like other public officers, and the military is entitled to
substantial deference in the governance of its affairs.”).  And none of Plaintiffs’ allegations show that
Defendants violated a definite and specific obligation set forth in the injunction.  Plaintiffs’ motion to
show cause is accordingly without merit.  As noted above, however, Defendants are willing to work
with Plaintiffs to seek to resolve any remaining disputes regarding compliance with the Court’s order,
including to seek clarification of the order to the extent the parties do not interpret it in the same
manner.
CONCLUSION
For the foregoing reasons, this Court should deny Plaintiffs’ motion to show cause.
Dated: February 7, 2022

Respectfully submitted,

BRIAN M. BOYNTON
Acting Assistant Attorney General

ALEXANDER K. HAAS
Director, Federal Programs Branch

ANTHONY J. COPPOLINO
Deputy Director
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14

/s/Amy Powell
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
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 919-856-4013
Fax: (202) 616-8470
Email: amy.powell@usdoj.gov

Counsel for Defendants

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CERTIFICATE OF SERVICE

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

/s/Amy Powell

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

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