Motion for Classwide Preliminary Injunction

Summary

Named Plaintiffs United States Navy SEALs 1-3 and United States Navy Explosive Ordnance Disposal Technician 1, on behalf of themselves and all others similarly situated, move under Federal Rule of Civil Procedure 65 for a preliminary injunction against enforcement of Defendants’ COVID-19 vaccine mandate in Case No. 4:21-cv-01236-O. The requested relief includes enjoining enforcement of the DoD COVID-19 Vaccine Mandate (an August 24, 2021 memorandum from Defendant Austin) and the Navy COVID-19 Vaccine Mandate (ALNAV 0622/21) against any member of the Navy Class and/or Subclasses. Named Plaintiffs also request a waiver of any bond, and the certificate of conference says Defendants are opposed to the relief requested. The signature block shows /s/ Heather Gebelin Hacker, dated the 7th day of February, 2022.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Date: 2022-02-07

Cite this document

“Motion for Classwide Preliminary Injunction.” Original at archive.org, dated 2022-02-07. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2022-02-07-plaintiffs-v-lloyd-j-austin-iii-in-his-official/, SHA-256 87e0bd29cd02535d333d5c6f3947dfe211c8443bbccbb789e6fd9f64d2d48064.

Full text

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,

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

MOTION FOR CLASSWIDE PRELIMINARY INJUNCTION

Plaintiffs United States Navy SEALs 1-3 and United States Navy Explosive Ordnance
Disposal Technician 1 (“Named Plaintiffs”), on behalf of themselves and all others similarly
situated, by and through counsel, and pursuant to Federal Rule of Civil Procedure 65, respectfully
move this Court for a preliminary injunction against enforcement of Defendants’ COVID-19
vaccine mandate.
In support of this Motion, Plaintiffs rely on the following:
1.
The Brief in support of this Motion, filed contemporaneously herewith;
2.
The Briefing, Appendices, and Supplemental Declarations in support of Plaintiffs’
Motion for Preliminary Injunction (Dkt. 16, 17, 58, 59, 62, 63);
Case 4:21-cv-01236-O Document 104 Filed 02/07/22 Page 1 of 5 PageID 3158
Case 4:21-cv-01236-O Document 104 Filed 02/07/22 Page 1 of 5 PageID 3158

3.
The Testimony, Exhibits, and Evidence offered and admitted by Plaintiffs at the
December 20, 2021 hearing on Plaintiffs’ Motion for Preliminary Injunction (See Dkt. 61, 101);
4.
The First Amended Class Action Complaint (Dkt. 84);
5.
The Briefing and Declarations in support of Named Plaintiffs’ Motion for Class
Certification (Dkt. 90 and forthcoming); and
6.
All Evidence necessary to support this Motion, filed hereafter or presented at a
hearing on this Motion or Plaintiffs’ Motion for Class Certification.
Named Plaintiffs respectfully request the Court to grant the following relief:
1.
A preliminary injunction enjoining Defendants, their agents, servants, employees,
attorneys, and all persons and entities in active concert or participation with them, directly or
indirectly, from enforcing the DoD COVID-19 Vaccine Mandate (August 24, 2021 memorandum
from Defendant Austin titled “Mandatory Coronavirus Disease 2019 Vaccination of Department
of Defense Service Members”), and the Navy COVID-19 Vaccine Mandate (ALNAV 0622/21),
against any member of the Navy Class and/or Subclasses; and
2.
A preliminary injunction enjoining Defendants, their agents, servants, employees,
attorneys, and all persons and entities in active concert or participation with them, directly or
indirectly, from applying any policies, guidance, or memoranda implementing the DoD COVID-
19 Vaccine Mandate or the Navy COVID-19 Vaccine Mandate, to any member of the Navy Class
and/or Subclasses.
3.
A preliminary injunction enjoining Defendants, their agents, servants, employees,
attorneys, and all persons and entities in active concert or participation with them, directly or
indirectly, from applying MANMED § 15-105(4)(n)(9), Trident Order #12, or any other policies,
guidance, or memoranda implementing the DoD COVID-19 Vaccine Mandate or the Navy
Case 4:21-cv-01236-O Document 104 Filed 02/07/22 Page 2 of 5 PageID 3159
Case 4:21-cv-01236-O Document 104 Filed 02/07/22 Page 2 of 5 PageID 3159

COVID-19 Vaccine Mandate, to any member of the Naval Special Warfare/Operations Subclass
and/or the Navy SEALs Subclass.
4.
A preliminary injunction enjoining Defendants, their agents, servants, employees,
attorneys, and all persons and entities in active concert or participation with them, directly or
indirectly, from taking any adverse action against any member of the Navy Class, the Naval
Special Warfare/Operations Subclass, and/or the Navy SEALs Subclass because of their requests
for religious accommodation.
Named Plaintiffs request a waiver of any bond required by Federal Rule of Civil Procedure
65(c) as these issues involve the free exercise of religion, there is no money at stake in issuance of
the injunction, and no financial impact on the Defendants. See Kaepa, Inc. v. Achilles Corp., 76
F.3d 624, 628 (5th Cir. 1996) (recognizing district courts have discretion to waive the bond
requirement of Rule 65(c)); see also Gordon v. City of Hous., 79 F. Supp. 3d 676, 695 (S.D. Tex.
2015) (waiving Rule 65 bond in First Amendment lawsuit).
WHEREFORE, the Named Plaintiffs respectfully request that the Court grant this Motion
for Preliminary Injunction.

Case 4:21-cv-01236-O Document 104 Filed 02/07/22 Page 3 of 5 PageID 3160
Case 4:21-cv-01236-O Document 104 Filed 02/07/22 Page 3 of 5 PageID 3160

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

Case 4:21-cv-01236-O Document 104 Filed 02/07/22 Page 4 of 5 PageID 3161
Case 4:21-cv-01236-O Document 104 Filed 02/07/22 Page 4 of 5 PageID 3161

CERTIFICATE OF CONFERENCE
Plaintiffs’ counsel conferred with Defendants’ counsel on February 7, 2022. Defendants
are opposed to the relief requested in this motion.
/s/ Heather Gebelin Hacker

HEATHER GEBELIN HACKER

Counsel for Plaintiffs

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