Brief Supporting Motion for Classwide Preliminary Injunction — U.S. Navy SEALs v. Austin

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A brief in support of a motion for classwide preliminary injunction in U.S. NAVY SEALs 1-3, et al. v. Lloyd J. Austin, III, et al., Case No. 4:21-cv-01236-O, Northern District of Texas, Fort Worth Division, filed as Document 105. Plaintiffs argue that the Court should grant the classwide preliminary injunction because the Navy Class satisfies the injunction factors for the same reasons stated in the Court's preliminary injunction order. The brief argues Plaintiffs are likely to succeed on their RFRA and First Amendment claims, and states that the Navy has granted zero of the nearly 4,000 RA requests. The signature block lists First Liberty Institute and Hacker Stephens LLP counsel, with /s/ Heather Gebelin Hacker, and a certificate of service dated February 7, 2022.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-3; on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,

Plaintiffs,

v.

LLOYD J. AUSTIN, III, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

Defendants.

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

BRIEF IN SUPPORT OF MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

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INTRODUCTION
As this Court stated when it granted the preliminary injunction, “There is no COVID-19
exception to the First Amendment. There is no military exclusion from our Constitution.” Dkt. 66
at 2. Yet despite the Navy’s policies paying lip service to their obligations under the First
Amendment and the Religious Freedom Restoration Act (RFRA), and despite its assurances to this
Court and to the public that each Religious Accommodation (RA) request would receive “case-
by-case” review and due consideration under the Navy’s accommodation process,1 this Court
found that “by all accounts, it is theater. The Navy has not granted a religious exemption to any
vaccine in recent memory. It merely rubber stamps each denial.” Dkt. 66 at 1. The Navy cannot
substantially burden the sincere religious beliefs of Navy servicemembers by mandating COVID-
19 vaccination without a compelling interest and use of the least restrictive means as applied to
the person seeking accommodation, but that is exactly what it is trying to do. This is a problem
that goes far beyond the thirty-five individual Plaintiffs. It extends to every Navy servicemember
who submitted a request for accommodation of their religious beliefs because every one of those
servicemembers is subject to an illegal mandate. As a result, each member of the Navy Class and
the Subclasses is suffering irreparable harm because of the violation of their religious-liberty
rights. The Court should enter a classwide preliminary injunction to halt that ongoing irreparable
injury and protect the fundamental rights of the Class and Subclass members.

1 See, e.g., Merz Decl., Defs.’ MPI Opp. App.310 (“each request [for religious accommodation] is evaluated
on a case-by-case basis”); Erin Brady, “Federal Judge Sides With 35 U.S. Navy Sailors Who Refused Vaccine After
Pentagon Mandate,” Newsweek, Jan. 4, 2022, https://www.newsweek.com/federal-judge-sides-35-us-navy-sailors-
who-refused-vaccine-after-pentagon-mandate-1665418 (Pentagon spokesman stating on December 21, 2021 that
“[e]ach exemption asked for on religious grounds is evaluated by a chaplain, by a chain of command, by medical
experts and is given quite a lot of thought, and they’re all decided case by case individually.”); MPI Hr’g Tr. 135:11-
18 (Defendants’ counsel arguing that there is no evidence that the religious-accommodation process is futile and
stating, “Plaintiffs cannot assume and cannot ask the Court to assume the bad faith of the military officers who will
being making these decisions. They’re senior military officers who have been ordered to consider the military’s
compelling interest in vaccination, whether less restrictive means are available to accommodate these plaintiffs’
religious needs. There’s no reason the Court should assume they will not do that.”)
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ARGUMENT
The Court may issue a preliminary injunction if the movants establish (1) a substantial
likelihood of success on the merits; (2) a substantial threat of irreparable harm; (3) that the balance
of hardships weighs in the movants’ favor; and (4) that the issuance of the preliminary injunction
will not disserve the public interest. See Daniels Health Servs., L.L.C. v. Vascular Health Scis.,
L.L.C., 710 F.3d 579, 582 (5th Cir. 2013); see also Fed. R. Civ. P. 65. The Navy Class satisfies
each of these factors for the same reasons that the Court already identified in its preliminary
injunction order.
I.
Plaintiffs Are Substantially Likely to Succeed on the Merits of Their RFRA
Claim.
RFRA provides that the
Government may substantially burden a person’s exercise of religion only if it
demonstrates that application of the burden to the person—(1) is in furtherance of
a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.
42 U.S.C. § 2000bb-1. As the Court recognized, and as Defendants do not dispute, RFRA extends
to the military. Dkt. 66 at 18 (citing 42 U.S.C. § 2000bb-2).
As this Court has already concluded, by mandating COVID-19 vaccination, “Defendants
have substantially burdened Plaintiffs’ religious beliefs.” Dkt. 66 at 18. Thus, “Defendants must
show that this burden furthers a compelling interest using the least restrictive means.” Dkt. 66 at
18. But “[w]ithout individualized assessment, the Navy cannot demonstrate a compelling interest
in vaccinating these particular Plaintiffs.” Dkt. 66 at 19. Because Defendants are not individually
assessing any requests for religious accommodation, and instead are merely denying all requests
based on identical rationale, despite the wide range of different assignments and circumstances
that apply to each Navy servicemember, application of the DoD and Navy COVID-19 Vaccination
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Mandates to Navy servicemembers who submitted RA requests, i.e. the Navy Class, violates
RFRA. Thus, Plaintiffs are likely to succeed on their RFRA claim.
II.
Plaintiffs Are Likely to Succeed on Their First Amendment Claim.
Plaintiffs are also likely to succeed on their First Amendment claim. The Navy has granted
ten permanent medical exemptions and 60 administrative exemptions for active-duty sailors,
which it appears to be assessing based on individual circumstances.2 Yet the Navy has granted
zero of the nearly 4,000 RA requests.3 In other words, the Navy is applying the standard of review
it is legally obligated to apply in the religious-accommodation context (and is not applying in that
context) to secular requests, and is granting some secular requests while denying all religiously
based requests. That disparate treatment renders the implementation of the DoD and Navy
COVID-19 Vaccine Mandates not neutral, as religious-based accommodation requests are treated
less favorably than secular requests. As the Court already concluded, “No matter how small the
number of secular exemptions by comparison, any favorable treatment . . . defeats neutrality.” Dkt.
66 at 22. Strict scrutiny thus applies, and the Mandates fail strict scrutiny for the same reasons they
cannot satisfy RFRA, as explained above.
III.
Plaintiffs Are Suffering Irreparable Harm.
As the Court already held, the enforcement of the DoD and Navy COVID-19 Vaccine
Mandates have caused the individual Plaintiffs irreparable harm. The Navy Class is suffering
irreparable harm on the same basis—namely, the loss of their First Amendment rights. Dkt. 66 at
24 (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.) (“The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”). The

2 See Diana Stancy Coryell, “Navy kicks out more than 100 sailors for refusing COVID-19 vaccine,” Navy
Times, Feb. 3, 2022, https://www.navytimes.com/news/your-navy/2022/02/03/navy-kicks-out-more-than-100-sailors-
for-refusing-covid-19-vaccine/.
3 Id.
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Navy Class (and Subclasses) are also suffering irreparable injury under RFRA. Dkt. 66 at 24 (citing
Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012)). The Navy Class
and Subclasses therefore satisfy the irreparable-harm requirement for issuance of a preliminary
injunction.
IV.
The Balance of Hardships Weighs in Plaintiffs’ Favor, and the Public Interest
Favors Granting the Injunction.
“The final two elements of the preliminary injunction standard—the balance of the harms
and whether an injunction will disserve the public interest—must be considered together.” Dkt. 66
at 25. As the Court recognized, “[a]n injunction does not disserve the public interest when it
prevents constitutional deprivations.” Dkt. 66 at 26 (citing Jackson Women’s Health Org. v.
Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014). And because the Navy Class, like the individual
Plaintiffs, are suffering a “loss of religious liberties,” that “outweighs any forthcoming harm to the
Navy.” Dkt. 66 at 26. Thus, the Navy Class and Subclasses “satisf[y] the final two requirements
for a preliminary injunction.” Id.
CONCLUSION
The Court should grant the classwide preliminary injunction.

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Respectfully submitted this 7th day of February, 2022.

KELLY J. SHACKELFORD
   Texas Bar No. 18070950
JEFFREY C. MATEER
   Texas Bar No. 13185320
HIRAM S. SASSER, III
   Texas Bar No. 24039157
DAVID J. HACKER
   Texas Bar No. 24103323
MICHAEL D. BERRY
   Texas Bar No. 24085835
JUSTIN BUTTERFIELD
   Texas Bar No. 24062642
Danielle A. Runyan *
  New Jersey Bar No. 027232004
Holly M. Randall *
  Oklahoma Bar No. 34763
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600
Plano, Texas 75075
Tel: (972) 941-4444
jmateer@firstliberty.org
hsasser@firstliberty.org
dhacker@firstliberty.org
mberry@firstliberty.org
jbutterfield@firstliberty.org
drunyan@firstliberty.org
hrandall@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.
/s/ Heather Gebelin Hacker
HEATHER GEBELIN HACKER
   Texas Bar No. 24103325
ANDREW B. STEPHENS
   Texas Bar No. 24079396
HACKER STEPHENS LLP
108 Wild Basin Road South, Suite 250
Austin, Texas 78746
Tel.: (512) 399-3022
heather@hackerstephens.com
andrew@hackerstephens.com

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on February 7, 2022, 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

Counsel for Plaintiffs

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