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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
SUPPLEMENTAL APPENDIX IN SUPPORT OF PLAINTIFFS’ MOTION FOR ORDER
TO SHOW CAUSE
Ex.
Description
Bates Number(s)
1
Declaration of Navy SEAL 16
0033-0039
2
Declaration of Navy SEAL 18
0040-0046
3
Declaration of Navy SEAL 26
0047-0050
4
Declaration of Navy Diver 2
0051-0053
5
Declaration of Navy SEAL 13
0054-0078
6
Declaration of Robert Wright
0079-0081
7
Declaration of Navy SEAL 21
0082-0085
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8
Declaration of Navy SEAL 25
0086-0089
9
Declaration of Navy SEAL 22
0091-0093
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Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 2 of 64 PageID 3451
Respectfully submitted this 13th 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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Exhibit 1
Pls.' Mot. for Order to Show Cause Suppl. App. 0033
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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
DECLARATION OF NAVY SEAL 16
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:
1.
I am over the age of eighteen and am competent to make this declaration.
2.
I reviewed the declarations of CAPT Christopher Brown, LCDR Ronald Harrison,
and CDR Andrew Sparks in support of the Defendants’ opposition to the motion for order to show
cause.
3.
I have 20 years of service in the U.S. Navy, and 19 years as a U.S. Navy SEAL. I
enlisted in the Navy in 2002 and became a SEAL in 2003. I am a Chief Warrant Officer/W-3.
Pls.' Mot. for Order to Show Cause Suppl. App. 0034
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4.
I have deployed six times in support of combat operations and I have received
several awards for my service, including Joint Commendation with Valor, six Navy
Commendation Medals and two Navy Achievement Medals.
5.
I have served as the Training Officer for two operational SEAL commands. I was
recently promoted to Operations Officer for my current command.
6.
LCDR Harrison states that the decision to pull SEAL 13 from Advanced Special
Operations Training Course (ASOT-C) was due to Army policy. As the prior Training Officer for
Special Reconnaissance Team ONE (SRT-1), I directly managed which SEALs attended ASOT-
C. I can attest that all SEALs are rigorously screened for their ability to qualify in ASOT-C and
then function as a Special Reconnaissance Platoon Leading Petty Officer. Naval Special Warfare
gets only a handful of billets per year for this school and they are exclusively divided between the
Special Reconnaissance Teams on the west and east coasts (SRT-1 and SRT-2, respectively).
Therefore, much thought and deliberation has been given prior to each candidate attending ASOT-
C and it is critical for each SEAL candidate to graduate. ASOT-C is a long, demanding, and
challenging course and is only available to veteran special operators. Any operator removed prior
to graduation is most often because of poor performance or occasionally a self-deselection (drop-
out-request [DOR]), aka quitting. Due to the critical importance of the ASOT-C qualification,
SRT-1 and SRT2 both do their utmost to make sure that their personnel are given every opportunity
to graduate to include joining video teleconferences with the ASOT-C school house if a student is
in danger of a performance drop. During my four years serving at SRT-1, I cannot recall a single
student ever returning from ASOT-C without active communication and a mutual understanding
between SRT-1 and the ASOT-C instructor staff.
Pls.' Mot. for Order to Show Cause Suppl. App. 0035
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7.
CDR Sparks describes certain tasks as regular functions, but they are all typically
assigned as punitive measures for discipline. The military uses a term for these types of tasks:
“Extra Military Instruction.” EMI is an adverse consequence of an infraction. It is not necessarily
inaccurate that EMI involves normal military duties for that reason, but EMI is not routine. The
military does have unfavorable jobs and duties and must assign someone to do those duties. In the
SEAL teams, standing watch at the command quarterdeck and being assigned with escort duties
for non-command personnel are most common unfavorable jobs often assigned as EMI.
Servicemembers doing these duties knows there’s a reason they were assigned to them, as they are
usually assigned as a corrective action. Otherwise they are split evenly amongst members who do
them infrequently. For SEAL personnel, these duties are always understood as punitive measures
unless they are part of a command-wide watch-standing schedule.
8.
CAPT Brown states that Plaintiffs serving in training commands are a danger to
other SEALs training for deployment. However, I know that many of the Plaintiffs, including me,
have continued to train other SEALs throughout the pandemic and are still training SEALs even
after the mandate. SEALs in training detachments work closely with the SEAL Platoons during
Unit Level Training. This is not surprising since SEALs in training detachments often have
qualifications that take years to obtain and are critical for preparing SEAL Teams for deployment.
9.
CAPT Brown states that to his knowledge, “the Navy has not taken any action that
would typically be considered an adverse action (e.g., imposition of discipline, processing for
administrative separation) or that constitutes adverse administrative action under governing Navy
regulations against any Plaintiff.” But SEALs removed from milestone positions (SEAL Platoon
Lead Petty Officer and Lead Chief Petty Officer) are only removed for punitive reasons like DUIs,
poor performance, or other disciplinary reasons. At times, there are family issues that interfere
Pls.' Mot. for Order to Show Cause Suppl. App. 0036
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with a SEAL filling a milestone position, but those are rare and clearly understood. Removing a
SEAL from his milestone position due to his vaccination status or Religious Accommodation
request, like some Plaintiffs have been, is clearly punitive.
10.
In my 20 years of service, it is extremely rare for someone to deploy without at
least 30 days’ notice. In my opinion, CAPT Brown makes it sound like we are all on “beeper
status,” which is only for a very select few people (i.e. DEVGRU) whose alert status is known,
well-planned for, and short-lived. For non-select units, the only SEALs deployed on short notice
are usually officers and it is generally to fill a staff function in a headquarters somewhere (not
doing missions). The reality is that SEAL Teams train for extended periods of time to prepare for
specific missions and must obtain specific qualifications to be deployable for that mission.
11.
The CAPT cites SWCC 4’s lesser experience (compared to the CAPT) as
detrimental to his understanding of the impacts these policies are having. But as a Non-
Commissioned Officer (NCO), SWCC 4 and the other Plaintiffs are directly responsible for the
day-to-day mission accomplishment of NSW and have firsthand knowledge of the facts on the
ground. As a Chief Warrant Officer, I have served in both the enlisted and officer ranks, and I have
been on both sides of policy decisions. In my experience, feedback from the NCOs responsible for
execution and mission accomplishment is critical for mission success.
12.
The CAPT points to the close quarters environment on submarines as an example
and asserts that “transmitting a respiratory disease in these conditions can have immediate mission
impact to NSW and the Navy overall.” In 20 years of service, I have never set foot in a submarine.
Only a very limited number of SEALs in a select unit (the SEAL Delivery Vehicle Teams) are
ever on submarines. Also, there are limited number of personnel diving, and it is extremely rare to
Pls.' Mot. for Order to Show Cause Suppl. App. 0037
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share a breathing device (except in training). During a mission, it would happen only in an
emergency and most SEALs have never done an underwater operation.
13.
It is also common knowledge that even before COVID-19, during the first month
on a ship or submarine, a large number of sailors become ill with both respiratory and digestive
illnesses. It is expected and is dealt with accordingly. Further, as the CAPT acknowledges, “we
execute ROM periods when NSW assets embarked on ships, transit national boundaries, operate
with partner forces, or have close contact with infected personnel.” Therefore, all personnel are
tested before being deployed or sequestered aboard ships or submarines, regardless of vaccination
status. The presence or absence of unvaccinated personnel does not change that.
14.
Defendants have also suggested that unvaccinated personnel present a danger to
mission completion because somehow those individuals are more likely to contract COVID-19 or
develop a severe case, and some missions make medical evacuation difficult. The vast majority of
SEALs, if any, are not at high risk of contracting a serious case of COVID-19 because they are
young and have a high level of physical fitness. But in the unlikely chance a member were to test
positive and he needed to get to a higher level of care, there is nowhere we deploy where this is
not possible. The risk of normal injuries from our duties are greater than the risk of COVID-19. It
is common for SEALs or support personnel to be injured or become sick before, after, or during
deployment. Even training activities are far more dangerous than COVID-19. Recently, a
Commanding Officer of an East Coast SEAL Team died after fast roping during a training exercise.
15.
Under current conditions, it is also very unrealistic to assume that vaccinated
servicemembers will not be exposed to COVID-19 (or unvaccinated people other than Plaintiffs)
in their daily lives, or that vaccinated servicemembers will not contract COVID-19, with or without
the presence of the Plaintiffs. Recently, my detachment had 75 people travel out-of-state for a
Pls.' Mot. for Order to Show Cause Suppl. App. 0038
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three-month training exercise. Almost immediately after arrival, one week of training was lost due
to over 15 people becoming infected or close contact with COVID-19, despite the fact that
everyone was fully vaccinated and most were boosted.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on February 13, 2022.
/s/Navy SEAL 16
NAVY SEAL 16
Pls.' Mot. for Order to Show Cause Suppl. App. 0039
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Exhibit 2
Pls.' Mot. for Order to Show Cause Suppl. App. 0040
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Pls.' Mot. for Order to Show Cause Suppl. App. 0041
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Pls.' Mot. for Order to Show Cause Suppl. App. 0042
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Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 13 of 64 PageID 3462
Pls.' Mot. for Order to Show Cause Suppl. App. 0043
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Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 14 of 64 PageID 3463
Pls.' Mot. for Order to Show Cause Suppl. App. 0044
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Pls.' Mot. for Order to Show Cause Suppl. App. 0045
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Pls.' Mot. for Order to Show Cause Suppl. App. 0046
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Exhibit 3
Pls.' Mot. for Order to Show Cause Suppl. App. 0047
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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
DECLARATION OF NAVY SEAL 26
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:
1.
I am over the age of eighteen and am competent to make this declaration.
2.
I reviewed the declarations of CAPT Christopher Brown and CDR Louis
McFadden III submitted in support of Defendants’ opposition to the motion for order to show
cause.
3.
On February 2, I was accepted for a third time by the National Intrepid Center of
Excellence (NICoE) at Walter Reed, this time for the March 27 session, which was the longest
Pls.' Mot. for Order to Show Cause Suppl. App. 0048
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possible timeframe NICoE could give me so that I had the maximum amount of time to get my
request approved. I secured that acceptance myself.
4.
CDR McFadden approved my request the same day. I believe that CDR McFadden
and the other Advanced Training Command (ATC) staff below him are doing everything they can
to get my travel to treatment at NICoE approved and I am very grateful for their efforts. It is my
understanding that it is the level above CDR McFadden—Naval Special Warfare leadership—that
has been disapproving my request. CAPT Christopher Brown is Chief of Staff for NSW Command.
5.
For example, LT Lawrence Beckhaus (ATC) has told me over the last few months
that my request would be a “hard no” at the NSWCEN CDRE level, that my request “will be
denied at the NSWCEN level based on conversations and previous denied requests,” and that
“CDRE is holding fast on denying official travel for unvaccinated members ATT [at this time].”
LT Beckhaus was one of the ATC staff who sought information regarding the possibility of me
attending treatment on leave status, which would avoid the routing of a travel request that will be
denied. Attending NICoE on leave would require me to attend on my own dime.
6.
CDR McFadden mentions TBI treatment at the Portsmouth Naval Medical Center
is an option for me. But it is well known within the SEAL community that the Portsmouth TBI
program does not compare to the NICoE program. NICoE is the most comprehensive, advanced,
and highly regarded TBI clinic available to DoD servicemembers. In comparison, the Portsmouth
program was recently established, is primarily for the fleet Navy, and is a quarter of the duration
of the NICoE program. It is also unclear why, as an unvaccinated person, I would present an
unacceptable risk driving a few hours in my car to receive treatment at NICoE, a significantly
smaller program that accepts other unvaccinated individuals, but no risk at Portsmouth, which is
housed within a massive military hospital.
Pls.' Mot. for Order to Show Cause Suppl. App. 0049
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7.
Before the COVID-19 Vaccine Mandate, my request to receive treatment at NICoE
would have been approved with no problem.
8.
I have not received any update on my request since CDR McFadden approved it on
February 3 and routed it to NSWCEN.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on February 13, 2022.
/s/ Navy SEAL 26
NAVY SEAL 26
Pls.' Mot. for Order to Show Cause Suppl. App. 0050
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Exhibit 4
Pls.' Mot. for Order to Show Cause Suppl. App. 0051
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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
DECLARATION OF NAVY DIVER 2
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:
1.
I am over the age of eighteen and am competent to make this declaration.
2.
I reviewed the Declaration of CDR Matthew Williams submitted in support of
Defendants’ opposition to the motion for order to show cause.
3.
Because my orders were taken from me, I am unaware of any modifications of those
orders and I have never received any notification about order modification.
4.
On February 9, 2022, I received a call from a Senior Chief here. He told me that
they are trying to get me to Dive School in Florida so I can get some dive time.
Pls.' Mot. for Order to Show Cause Suppl. App. 0052
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5.
The only billets in that location are for instructors, so this would not be a permanent
change of station (PCS). It would, however, at least allow me to get dive time. I believe it would
also allow me to work on my qualifications which relate to my job and potential advancement.
6.
I had a phone call on the afternoon of February 10, 2022 with the Senior Chief and
a Master Diver at the Dive School. The Master Diver said I was unable to get a temporary
assignment of duty (TAD) there because of a NAVADMIN prohibiting travel or TAD by vaccine
refusers.
7.
Since submitting to testing on February 1, 2022, I was sent back to work at supply.
I had mainly been taking people’s temperatures at the door and picking lint out of Velcro. A few
days ago, I was told not to take temperatures anymore, but my remaining duties are the same.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on February 11, 2022.
/s/ Navy Diver 2
NAVY DIVER 2
Pls.' Mot. for Order to Show Cause Suppl. App. 0053
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Exhibit 5
Pls.' Mot. for Order to Show Cause Suppl. App. 0054
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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
DECLARATION OF NAVY SEAL 13
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:
1.
I am over the age of eighteen and am competent to make this declaration.
2.
I reviewed the Declaration of LCDR Ronald E. Harrison submitted in support of
Defendants’ opposition to Plaintiffs’ motion for order to show cause.
3.
I was removed from the Advanced Special Operations Techniques Course (ASOT-
C) because of my Religious Accommodation (RA) request. I know that because Operations Officer
LCDR Brandon Barker (in conjunction with my chain of command) informed me by telephone on
28 September 2021 that if I proceeded with filing an RA I would be removed from the course.
Pls.' Mot. for Order to Show Cause Suppl. App. 0055
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4.
The conversation with LCDR Barker is recounted in an email I sent to him the next
day. A true and correct copy is attached to this Declaration as Exhibit A.
5.
The course submitted a memorandum to my command in response to my unit recall
stating that I was not voluntarily removing myself from the course, but was complying with the
order from my chain of command to discontinue participation and return to the unit immediately.
A true and correct copy is attached to this Declaration as Exhibit B.
6.
LCDR Harrison asserts the command’s basis of my removal relied on the Army
School House policies for students to be vaccinated and thereby is not under the purview of the
Navy or the NSW community. But according to the Army School House policy made available
on 21 September 2021 (a true and correct copy attached to this Declaration as Exhibit C), “Soldiers
requesting an exemption are not required to receive the vaccine pending the final decision on their
exemption request.” Ex. C at 3.B.2.B.1 (U). That policy also states that “Commanders will not
take adverse action against Soldiers with pending exemption requests. Soldiers with pending
exemption requests will be considered compliant with the mandatory vaccination order while
requests are pending.” Ex. C at 3.B.2.B.1.F (U). Furthermore, I am aware that there was another
servicemember in the course who had a pending RA request and who was not removed.
7.
Shortly after returning to my unit, I was removed as Lead Petty Officer, which is a
benchmark to advance to E-7. That effectively makes it impossible for me to make rank. My
removal was three months prior to my request for terminal leave.
8.
When I requested terminal leave, I was utilizing my only option to avoid
Administrative Separation. I would not have requested terminal leave if I had thought otherwise.
I have seventeen years of service and intended to serve until I qualify for retirement at twenty years
of service. Once I realized that the Court’s preliminary injunction protected me from this action, I
Pls.' Mot. for Order to Show Cause Suppl. App. 0056
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asked to terminate my terminal leave and filed for extension of enlistment in the meantime until 4
June 2021 as advised by CWO-3 Raul Romero. I was advised that my chain of command would
only approve an extension until the date established by NAVADMIN 283/21. While I was trying
to rescind my terminal leave, on 24 January 2022, I was brought into the office of the Group 8
Assistant Staff Judge Advocate (JAG), LT George O. Hageman, in the presence of CWO-3 Raul
Romero, where LT Hageman proceeded to warn me against coming off terminal leave.
9.
LT Hageman stated that according to NAVADMIN 283/21, if I came off terminal
leave, I would be subject to Administrative Separation. LT Hageman proceeded to hand me a
copy of the SJA (20 Dec 2021) COVID-19 CCDA Execution Guidance to Commanders that
summarized NAVADMIN 283/21 to support this claim. I reviewed these documents and did not
believe that this interpretation was correct. I returned to his office to discuss, and LT Hageman
said my interpretation was fair, but he could not provide me any clarification on the matter.
Following this interaction, I emailed both CWO-3 Romero and LT Hageman requesting
clarification. After two weeks passed without reply, I sent a follow-up email on 8 February 2022.
A true and correct copy of this email is attached to this Declaration as Exhibit D.
10.
I have not received a substantive response as of the date of this Declaration.
11.
In December 2021, my command also put a hold on my Dive Physical explicitly
because of my RA request. A true and correct copy of the email is attached to this Declaration as
Exhibit E.
12.
Without a current dive physical, I am unable to participate in high-risk evolutions,
which may result in a loss of special duty pays.
//
Pls.' Mot. for Order to Show Cause Suppl. App. 0057
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 28 of 64 PageID 3477
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 28 of 64 PageID 3477
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on February 12, 2022.
/s/ Navy SEAL 13
NAVY SEAL 13
Pls.' Mot. for Order to Show Cause Suppl. App. 0058
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 29 of 64 PageID 3478
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 29 of 64 PageID 3478
Exhibit A
Pls.' Mot. for Order to Show Cause Suppl. App. 0059
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 30 of 64 PageID 3479
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 30 of 64 PageID 3479
Pls.' Mot. for Order to Show Cause Suppl. App. 0060
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 31 of 64 PageID 3480
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 31 of 64 PageID 3480
Pls.' Mot. for Order to Show Cause Suppl. App. 0061
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 32 of 64 PageID 3481
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 32 of 64 PageID 3481
Exhibit B
Pls.' Mot. for Order to Show Cause Suppl. App. 0062
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 33 of 64 PageID 3482
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 33 of 64 PageID 3482
Pls.' Mot. for Order to Show Cause Suppl. App. 0063
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 34 of 64 PageID 3483
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 34 of 64 PageID 3483
Exhibit C
Pls.' Mot. for Order to Show Cause Suppl. App. 0064
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 35 of 64 PageID 3484
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 35 of 64 PageID 3484
Pls.' Mot. for Order to Show Cause Suppl. App. 0065
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 36 of 64 PageID 3485
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 36 of 64 PageID 3485
Pls.' Mot. for Order to Show Cause Suppl. App. 0066
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 37 of 64 PageID 3486
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 37 of 64 PageID 3486
Pls.' Mot. for Order to Show Cause Suppl. App. 0067
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 38 of 64 PageID 3487
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 38 of 64 PageID 3487
Pls.' Mot. for Order to Show Cause Suppl. App. 0068
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 39 of 64 PageID 3488
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 39 of 64 PageID 3488
Pls.' Mot. for Order to Show Cause Suppl. App. 0069
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 40 of 64 PageID 3489
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 40 of 64 PageID 3489
Pls.' Mot. for Order to Show Cause Suppl. App. 0070
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 41 of 64 PageID 3490
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 41 of 64 PageID 3490
Pls.' Mot. for Order to Show Cause Suppl. App. 0071
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 42 of 64 PageID 3491
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 42 of 64 PageID 3491
Pls.' Mot. for Order to Show Cause Suppl. App. 0072
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 43 of 64 PageID 3492
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 43 of 64 PageID 3492
Pls.' Mot. for Order to Show Cause Suppl. App. 0073
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 44 of 64 PageID 3493
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 44 of 64 PageID 3493
Pls.' Mot. for Order to Show Cause Suppl. App. 0074
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 45 of 64 PageID 3494
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 45 of 64 PageID 3494
Exhibit D
Pls.' Mot. for Order to Show Cause Suppl. App. 0075
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 46 of 64 PageID 3495
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 46 of 64 PageID 3495
Pls.' Mot. for Order to Show Cause Suppl. App. 0076
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 47 of 64 PageID 3496
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 47 of 64 PageID 3496
Exhibit E
Pls.' Mot. for Order to Show Cause Suppl. App. 0077
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 48 of 64 PageID 3497
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 48 of 64 PageID 3497
Pls.' Mot. for Order to Show Cause Suppl. App. 0078
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 49 of 64 PageID 3498
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 49 of 64 PageID 3498
Exhibit 6
Pls.' Mot. for Order to Show Cause Suppl. App. 0079
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 50 of 64 PageID 3499
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 50 of 64 PageID 3499
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NA VY SEALs 1-3, on behalf of
themselves and all others similarly situated;
U.S. NA VY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NA VY SEALS 4-26; U.S. NA VY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NA VY 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-0 1236-0
DECLARATION OF ROBERT WRIGHT
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:
l.
I am over the age of eighteen and am competent to make this declaration.
2.
I am an instructor at the Advanced Special Operations Techniques Course (ASOT-
C) at Joint Base Lewis-McChord, which is run by the U.S. Army.
3.
was my student in the course during the summer of 2021. l was
his mentor and worked closely with him during that time.
4.
llllllllwas the first student I have ever heard of to be removed from the course
before finishing because of unit recall. Until that happened, students only left the course without
Navy SEAL 13
SEAL 13
Pls.' Mot. for Order to Show Cause Suppl. App. 0080
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 51 of 64 PageID 3500
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 51 of 64 PageID 3500
SEAL 13
SEAL 13
SEAL 13
Pls.' Mot. for Order to Show Cause Suppl. App. 0081
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 52 of 64 PageID 3501
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 52 of 64 PageID 3501
Exhibit 7
Pls.' Mot. for Order to Show Cause Suppl. App. 0082
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 53 of 64 PageID 3502
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 53 of 64 PageID 3502
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
DECLARATION OF NAVY SEAL 21
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:
1.
I am over the age of eighteen and am competent to make this declaration.
2.
I reviewed the declaration of CDR Andrew Sparks in support of Defendants’
opposition to the motion for order to show case.
3.
I am assigned to SEAL Team 5 along with Navy SEAL 25. There is another
member of Team 5 with a pending Religious Accommodation (RA) request. CDR Sparks states
that we assist with “scheduling and execution of training.” We have not been doing that. I helped
facilitate training for two weeks before the command took my issued gear in early November (the
Pls.' Mot. for Order to Show Cause Suppl. App. 0083
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 54 of 64 PageID 3503
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 54 of 64 PageID 3503
gear I need to be part of any training we do) and told me that I was no longer able to help train. I
was asked for by name at the end of October to help TRADET (Training Detachment) by being a
Range Safety Officer during a training block where I worked for three years before arriving at
Team 5, but my command told them I could not help. We have been told that our SOP every day
is to walk around the command picking up trash, take out the Commanding Officer and the
Command Master Chief’s trash, and then report back to the Ops Master Chief.
4.
CDR Sparks states that the three of us in Team 5 with pending RA requests may
potentially contract COVID-19 and transmit it to other team members. But this has already
happened numerous times with vaccinated personnel in Team 5. Also, the three of us with pending
RA requests were recently required to escort retired SEALs (estimated age 50s-60s) around Team
5 for a program. It is unclear to me why we would be required to do that if we presented a danger
to others far younger.
5.
CDR Sparks states that I was required to conduct an inventory of equipment I would
need for overseas deployment but that was not done because I submitted an RA request. I did take
an inventory of my gear, but I was required to turn it in.
6.
On February 9, 2022, the three of us with pending RA requests were told by our
command that we will be standing quarter deck watch every workday from 0800-1700 and to split
the watch amongst ourselves. Even split between the three of us, these are longer hours than we
had before. This watch consists of allowing access to visitors and escorting them around the
building. Team 5 did not have a quarter deck watch until we were assigned to this. Usually every
department from the team will have someone stand watch in a rotation. Right now, the only people
standing quarter deck watch are the three members of Team 5 with RA requests.
Pls.' Mot. for Order to Show Cause Suppl. App. 0084
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 55 of 64 PageID 3504
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 55 of 64 PageID 3504
7.
When members of the command find out that we are standing quarter deck watch,
they ask why we are being punished.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on February 12, 2022.
/s/ Navy SEAL 21
NAVY SEAL 21
Pls.' Mot. for Order to Show Cause Suppl. App. 0085
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 56 of 64 PageID 3505
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 56 of 64 PageID 3505
Exhibit 8
Pls.' Mot. for Order to Show Cause Suppl. App. 0086
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 57 of 64 PageID 3506
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 57 of 64 PageID 3506
While 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
DECLARATION OF NAVY SEAL 25
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:
1.
I am over the age of eighteen and am competent to make this declaration.
2.
I reviewed the declaration of CDR Andrew Sparks in support of Defendants’
opposition to the motion for order to show case.
3.
I am assigned to SEAL Team 5 along with Navy SEAL 21. There is another
member of Team 5 with a pending Religious Accommodation (RA) request. CDR Sparks states
that we assist with “scheduling and execution of training.” We have not been doing that. The
Pls.' Mot. for Order to Show Cause Suppl. App. 0087
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 58 of 64 PageID 3507
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 58 of 64 PageID 3507
command took my issued gear in early November (the gear I need to be part of any training we
do) and told me that I was no longer able to help train.
4.
CDR Sparks states that our unvaccinated status prevents us from doing many duties
necessary to effectively train with our platoon’s upcoming deployment. On 6 October 2021, I was
told to assist with boat support for a platoon’s training exercise. I was in the same boat and in close
contact with a platoon of 25 SEALs in order to conduct training, despite being unvaccinated. I
have not been asked to assist with training since I submitted my RA request on 14 October 2021.
5.
CDR Sparks states that we were required to conduct an inventory of equipment
needed for overseas deployment but that was not done because I submitted an RA request. I did
take an inventory of my gear, but I was required to turn it in.
6.
CDR Sparks states that the weapons watch I did took place at an airfield and that
watch-standers were required to ensure accountability and custody of military weapons. The
weapons were not located at an airfield, however, they were on base in a parking lot. The only
servicemembers who stood this watch were the other SEAL with a pending RA and me. (SEAL
21 was on leave.) No one else at the team helped with this 18-hour overnight watch. Normally,
teams watch their own weapons.
7.
On February 9, 2022, the three of us with pending RA requests were told by our
command that we will be standing quarter deck watch every workday from 0800-1700 and to split
the watch amongst ourselves. Even split between the three of us, these are longer hours than we
had before. This watch consists of allowing access to visitors and escorting them around the
building. Team 5 did not have a quarter deck watch until we were assigned to this. Usually every
department from the team will have someone stand watch in a rotation. Right now, the only people
standing quarter deck watch are the three members of Team 5 with RA requests.
Pls.' Mot. for Order to Show Cause Suppl. App. 0088
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 59 of 64 PageID 3508
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 59 of 64 PageID 3508
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on February 12, 2022.
/s/Navy SEAL 25
NAVY SEAL 25
Pls.' Mot. for Order to Show Cause Suppl. App. 0089
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 60 of 64 PageID 3509
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 60 of 64 PageID 3509
Exhibit 9
Pls.' Mot. for Order to Show Cause Suppl. App. 0090
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 61 of 64 PageID 3510
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 61 of 64 PageID 3510
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
DECLARATION OF NAVY SEAL 22
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:
1.
I am over the age of eighteen and am competent to make this declaration.
2.
I reviewed the declaration of LCDR Forrest Crowell in support of Defendants’
opposition to the motion for order to show cause.
3.
I was told that my transfer to the SEAL Team from a training detachment was
paused because I was not allowed to transfer within 60 days of submitting a Religious
Accommodation request. I was already physically located at SEAL Team 7 and just required a
formal transfer. As a result, I was going to wait to submit my RA until after I transferred, but I was
Pls.' Mot. for Order to Show Cause Suppl. App. 0091
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 62 of 64 PageID 3511
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 62 of 64 PageID 3511
told that I would still be allowed to transfer while waiting for the result of the RA request. I
submitted my RA request on October 14, 2021. LCDR Crowell states that my orders to serve as
Leading Chief Petty Officer of Alpha platoon, SEAL Team 7, were cancelled one week later on
October 21, 2021 “in accordance with operational readiness or mission requirements.” But I was
not relieved of duty as Platoon Chief until December 7, 2021. Each Troop has an Operations Chief
that is ready to replace any platoon chief that is fired or injured, so I could have been relieved and
replaced as soon as my orders were cancelled if it was required for “operational readiness or
mission requirements.”
4.
As I stated in my previous declaration, on January 28, 2022, I was told by my
command that I will not be permitted to attend a training course along with the other members of
my training cell. LCDR Crowell states that my attendance at this training was not approved
because the travel was not “mission critical and could be conducted by other personnel.” But this
was not a training trip where I was going to be instructing. This trip was for my training cell to
learn and renew/stay current on our Air Ops Trainer Examiner (AOT-E) qualification. I don’t
understand how traveling so I can train to maintain my qualifications can be done by “other
personnel.” And while no person is mission critical, qualifications are. AOT-E is a very limited
qualification that not many members have and takes years to acquire. My AOT-E qualification is
therefore very important to the SEAL Teams and decreases risk in the high-risk training that we
do involving skydiving/parachuting.
5.
We also we have a civilian contractor with us on these training trips (who is not
required to be vaccinated). During the course, we renew our civilian licenses (Advanced Free Fall
Instructor) with him. Civilian qualifications are needed to have the AOT-E military qualification.
Pls.' Mot. for Order to Show Cause Suppl. App. 0092
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 63 of 64 PageID 3512
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 63 of 64 PageID 3512
Since this trip was cancelled, I no longer maintain my civilian qualifications needed for my military
qualifications.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on February 12, 2022.
/s/Navy SEAL 22
NAVY SEAL 22
Pls.' Mot. for Order to Show Cause Suppl. App. 0093
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 64 of 64 PageID 3513
Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page 64 of 64 PageID 3513