Appendix in Support of Plaintiffs’ Motion for Classwide
- Date
- 2022-02-28
Source document: Appendix in Support of Plaintiffs’ Motion for Classwide; document type: inspector-general-sigpr-reports.
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,
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
APPENDIX IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASSWIDE
PRELIMINARY INJUNCTION
Ex.
Description
Bates Number(s)
1
Declaration of Commander Robert A. Green, Jr., USN
0001-0035
2
Declaration of Brian J. Ferguson
0036-0102
3
Declaration of Lieutenant Commander Erik V. De Sousa, USN
0103-0129
4
Declaration of Lieutenant Daniel Franklin, USN
0130-0148
5
Letter from United States Senator James Lankford to Secretary
Lloyd J. Austin
0149-0152
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Letter from United States Senator James Lankford to Acting
Inspector General Sean O’Donnell
0153-0155
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Respectfully submitted this 28th 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 Classwide Prelim. Inj. App. 0001
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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 COMMANDER ROBERT A. GREEN, JR., USN
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 have served in the United States Navy since entering the Naval Academy in the
summer of 2003. I have had an exemplary career marked by sustained superior performance in
challenging billets from a diverse variety of Navy warfighting communities and command
echelons. I spent five years as a reserve officer and government civilian (GS-13) within the
Navy’s Acquisitions Workforce before reaffiliating back to permanent active duty in 2019. I
have completed highly technical postgraduate education programs at multiple academic
Pls.' Mot. for Classwide Prelim. Inj. App. 0002
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institutions and have leveraged that education to help initiate data analytics efforts at several
major commands. In my promotion to the rank of Commander (O-5), the Navy saw fit to reward
my exemplary performance with a merit reorder, essentially an early promotion based on merit.
I was the Executive Officer (XO), or second-in-command, of Maritime Expeditionary Security
Squadron EIGHT (MSRON-8). I am currently assigned to the staff of Maritime Expeditionary
Security Group TWO (MESG-2).
3.
I have sincere religious beliefs that preclude me from receiving the COVID-19
vaccination as ordered by my superiors in the Navy. I submitted a religious accommodation
request on September 15, 2021, requesting that the Navy waive the requirement for me to
become vaccination against the COVID-19 virus. I submitted an addendum to that request on
October 19, 2021.
4.
The Deputy Chief of Naval Operations (DCNO) (N1), Vice Admiral John B.
Nowell, signed and dated a disapproval of my request on November 23, 2021. A copy of my
denial letter is attached to this declaration as part of Exhibit A. I have subsequently submitted an
appeal of Vice Admiral Nowell’s disapproval to Admiral Michael M. Gilday, the Chief of Naval
Operations (CNO). To my knowledge that appeal is still pending and has not been adjudicated.
5.
On December 23, 2021, I filed a complaint under Article 1150, U.S. Navy
Regulations, against Vice Admiral Nowell, for his violations of law and military regulations. In
it I clearly explained that my complaint was a protected communication under the Military
Whistleblower Protection Act, 10 U.S.C. § 1034. The basis for the complaint is that (1) the
disapproval of my religious accommodation request was pre-determined, (2) the letter Vice
Admiral Nowell sent disapproving my religious accommodation request was a form template,
and (3) the case-by-case review of my request required by law and regulation was a fraud
Pls.' Mot. for Classwide Prelim. Inj. App. 0003
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designed to have the appearance of following regulation but was actually conducted after my
disapproval letter was written, all DCNO (N1) documentation supporting my disapproval was
packaged, and all intermediate routing steps of my religious accommodation request were
completed. A copy of my complaint is attached to this declaration as Exhibit A.
6.
In support of my complaint against Vice Admiral Nowell, I attached the Standard
Operating Procedure (SOP) used by Vice Admiral Nowell and his staff to deny religious
accommodation requests, which I was given by a member of Vice Admiral Nowell’s staff. The
SOP demonstrates clear violations of 42 U.S.C. §2000bb-1, DODINST 1300.17, and
BUPERSINST 1730.11A by Vice Admiral Nowell and his staff. A copy of the SOP is attached
to this declaration as part of Exhibit A.
7.
Aside from the fact that the person I received the SOP from was a member of the
DCNO’s staff, the metadata in the SOP file demonstrates that it was created by the DCNO’s
office. The file shows that the author of the SOP was “Neuer, Richard A LTJG USN
COMNAVDIST WASH DC (USA).” Richard Neuer, now a Lieutenant in the Navy, is a
member of the DCNO N1 staff. In addition, the form denial letter shown in the SOP is nearly
identical to my own denial letter, and nearly identical to all other denial letters I’ve seen that
were given to others seeking religious accommodations, including sailors in circumstances very
different from my own.
8.
On Friday, January 7, 2022, four days after this Court issued the preliminary
injunction relying in part on the SOP document attached to my complaint, I was relieved of my
duty as XO of MSRON-8 and assigned to the staff of MESG-2.
9.
In an email to the command, my commanding officer stated that I was relieved of
duty “while a vaccine waiver works its way through the system.” I was not relieved because of
Pls.' Mot. for Classwide Prelim. Inj. App. 0004
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my job performance. My commanding officer specifically stated: “Effective immediately CDR
Green is no longer XO of MSRON EIGHT. He has been reassigned TAD to MESG2 while a
vaccine waiver works its way through the system. CDR Green leaves huge shoes to fill, he was a
professional who did excellent work and his presence and professionalism will be difficult to
replace.” A copy of this email is attached to this declaration as Exhibit B.
10.
On January 7, 2022, I sent a memorandum to the members of the House and
Senate Armed Services Committee under the Military Whistleblower Protection Act, 10 U.S.C. §
1034, urging Congress to call for an immediate end of religious discrimination in the military
and urging them hold Navy leaders accountable for violating the constitutional rights of sailors.
The memorandum is attached to this declaration as Exhibit C.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true
and correct.
Executed on February 26, 2022.
ROBERT A. GREEN, JR.
Pls.' Mot. for Classwide Prelim. Inj. App. 0005
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EXHIBIT A
Pls.' Mot. for Classwide Prelim. Inj. App. 0006
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Pls.' Mot. for Classwide Prelim. Inj. App. 0007
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4.
Complaint:
a.
Type of Alleged Wrong: Denial of complainant’s Constitutional rights under the First and Fifth
Amendments through a violation of 42 U.S.C. 2000bb-1, DODINST 1300.17, and
BUPERSINST 1730.11A.
(1)
Date alleged wrong discovered: 29 November, 2021
(2)
Date written request for redress was submitted to complainant’s commanding officer:
N/A
(3)
Date answer to request for redress was received: N/A
(4)
Number of calendar days between alleged wrong and submission of complaint: 24 days
(5)
Specific, detailed explanation of alleged wrong committed:
On 15 September 2021, I submitted a request to waive COVID-19 immunization requirements due
to my religious beliefs that preclude me from receiving a COVID-19 vaccination. I submitted an addendum
to that request on 19 October 2021. The Deputy Chief of Naval Operations (DCNO)(N1), Vice Admiral
Nowell, signed and dated a disapproval of my request on 23 November 2021.
My religious accommodation request was processed by the OPNAV N131 Religious
Accommodation team. Enclosure (1) is the Standard Operating Procedure (hereafter DCNO(N1) SOP) that
Vice Admiral Nowell and his staff followed to handle the vast increase in COVID-19 related immunization
waiver requests resulting from the various military COVID-19 vaccine orders, references (c) through (e).
The DCNO(N1) SOP instructs OPNAV N131 staffers on the exact steps to take upon receipt of a religious
accommodation request including computer screenshots that demonstrate what lines of text to write and
what buttons to click. The DCNO(N1) SOP is broken down into 6 phases, complete with 50 total steps.
Many of the steps are fairly innocuous such as Phase 0 Step 2 which requires the staffer to “[r]eply all to the
[accommodation request] email and acknowledge receipt of the request with the following response:”
Several of the DCNO(N1) SOP steps, however, are not innocuous and provide clear evidence of violations
of law per 42 U.S.C. 2000bb-1, and regulations per DODINST 1300.17 and BUPERSINST 1730.11A. I
will demonstrate in this complaint that I have been wronged by Vice Admiral Nowell’s violations of law
and regulations through his use of the DCNO(N1) SOP process in denying my request for religious
accommodation. Specifically, I will use the DCNO(N1) SOP to demonstrate 1) that the disapproval of my
religious accommodation request was pre-determined, 2) that the letter Vice Admiral Nowell sent
disapproving my religious accommodation request was a form template, and 3) that the case-by-case review
of my request required by law and regulation was a fraud designed to have the appearance of following
regulation but was actually conducted after my disapproval letter was written, all DCNO(N1)
documentation supporting my disapproval was packaged, and all intermediate routing steps of my religious
accommodation request was completed.
The first 13 steps of the DCNO(N1) SOP are preparation steps in which the OPNAV N131 staffer
verifies that the request has all of the required documents and that those documents are moved to the
appropriate folder on the shared drive. If the religious accommodation request does have all of the proper
documents, then astonishingly, the very first processing step a staffer makes is to add the disapproval
template to the folder and to rename the disapproval template file to include the Last Name, First Name,
and Rank of the religious accommodation requester. This is done in Step 14.
Pls.' Mot. for Classwide Prelim. Inj. App. 0008
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The very next step, Step 15 on page 7, asks the staffer to open the disapproval template and update
the “TO:” line with the requester’s Name, Rank, and Designator. DCNO(N1) SOP Step 15 also shows a
picture of the disapproval template complete with highlighted portions to indicate what must be replaced
with the requester’s information in order to prepare the disapproval for routing. There is no approval
template mentioned in the SOP. In fact, there is no indication that an approval template has ever been
written. I found it shocking that Vice Admiral Nowell permits a process so riddled with systemic religious
discrimination that my request was not even reviewed before a disapproval letter was added, tailored to
include my name, and only then was routed for review.
The next several steps of the DCNO(N1) SOP direct the OPNAV N131 staffer to prepare the
religious accommodation package for routing within their document routing system. Step 20 lists who must
review the religious accommodation request including BUMED (Rear Admiral Gillingham), Policy and
Strategy (N0975), the Officer Plans and Policy Office, the Special Assistant for Legal Matters, N1 Fleet
Master Chief, Total Force Manpower and Personnel Plans and Policy (N13 Front Office), and finally
Manpower, Personnel, Training, and Education (N1 Front Office). I felt betrayed to know that my religious
accommodation request went to these offices for review with a pre-prepared disapproval letter already
included within the package.
Once routing/review is completed by the above offices, the OPNAV N131 staffer begins to package
groups of religious accommodation requests together for final signature. This is done in Steps 30 through
32. Step 33 directs the OPNAV N131 staffer to update an internal memo from N13 to Vice Admiral
Nowell. This internal memo asks Vice Admiral Nowell to “sign TABs A1 through A10, letters
disapproving immunization waiver requests based on sincerely held religious beliefs.” TAB B lists all
supporting documents including the original religious accommodation request from the requester. It is clear
from the DCNO(N1) SOP that all TAB A letters are the same disapproval template letters prepared by the
OPNAV N131 staffers in Step 15 immediately upon receipt of the initial religious accommodation request.
Steps 35-38 list the first time an OPNAV N131 staffer is asked to actually read through the
religious accommodation request and begin to list details from the request in a spreadsheet for Vice
Admiral Nowell’s “review”. There is a note in ALL CAPS which emphasizes the importance of this review
to building the façade that the religious accommodation requests are receiving a case-by-case examination.
The note states: “THIS IS THE MOST CRITICAL STEP IN THE ENTIRE PROCESS AND THE CNO
AND CNP ARE RELYING ON YOU TO ENSURE THAT YOUR REVIEW IS THOUROUGH AND
ACCURATE. DO NOT RUSH THIS PROCESS AND ENSURE THAT YOU UNDERSTAND BEFORE
MOVING FORWARD.” This step is critical to disguising the systemic religious discrimination within the
DCNO(N1) SOP process because according to reference (h) they are required to review each request “on a
case-by-case basis, giving consideration to the full range of facts and circumstances relevant to the specific
request.” Reference (h) goes on to state that “[r]equests to accommodate religious practices should not be
approved or denied simply because similar requests were approved or denied.” The most significant
problem with the DCNO(N1) SOP is that the case-by-case “review” does not happen until Step 35 in the
process. By this point, my disapproval letter had already been written (Step 15), my religious
accommodation request and related documents had already been returned from the various required
reviewing offices (Steps 16-29), my disapproval and religious accommodation request had already been
packaged within a batch of other similar requests (Steps 30-32), and, finally, an internal memo had already
been drafted from DCNO (N13) to DCNO (N1) requesting that Vice Admiral Nowell disapprove my
religious accommodation request (Step 33). All this occurred prior to the official “review” of my religious
accommodation request required by law and regulation.
After my entire disapproval package was built and then prepared for Vice Admiral Nowell to sign,
the DCNO(N1) SOP Steps 35-38 finally direct the OPNAV N131 staffer to read the entirety of my religious
accommodation request package including my original request, the BUMED Memo, and the Legal Memo.
Pls.' Mot. for Classwide Prelim. Inj. App. 0009
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They are then directed to add any additional pertinent information from the package and place that
information into a spreadsheet. This spreadsheet is evidence, not of a true case-by-case review of the
religious accommodation request, because the result at this point in the DCNO(N1) SOP process, is a
forgone conclusion. This spreadsheet is evidence instead of the systematic and deliberate attempts taken by
Vice Admiral Nowell and his staff to appear compliant with regulatory requirements while actually
depriving me of my rights to due process under the Fifth Amendment and my rights to freedom of religious
expression under the First Amendment of the Constitution.
In addition to fraudulently attempting to appear legal and in compliance with regulation, it is
plainly clear that the DCNO(N1) SOP process is also designed to streamline the subsequent (and pre-
determined) disapproval upon receipt of a religious accommodation request. The DCNO(N1) SOP,
especially Step 35, makes it clear that the secondary goal (after streamlining the pre-determined
disapproval), is to protect Vice Admiral Nowell from potential legal blowback in the event he is asked for
proof that a case-by-case review was completed for each religious accommodation request. Even though
the DCNO(N1) SOP is blatantly defying requirements under both law and regulation, in my personal
disapproval letter, enclosure (2), Vice Admiral Nowell made the statement that “[a]ll requests for
accommodation of religious practices are assessed on a case-by-case basis.” Vice Admiral Nowell goes on
to state that “[i]n making this decision, I reviewed reference (g) [my religious accommodation request],
including the endorsements from your chain of command, the local chaplain and the advice of Chief,
Bureau of Medicine and Surgery in reference (h).” While the DCNO(N1) SOP cannot prove that Vice
Admiral Nowell is lying in making this last statement, enclosure (1) does prove that any review of my
religious accommodation request that Vice Admiral Nowell may or may not have conducted, had no
bearing on my discriminatory and pre-determined disapproval which he signed on 23 November, 2021.
Vice Admiral Nowell and his staff are ignoring the requirements of both the Religious Freedom
Restoration Act and DODINST 1300.17. The requirements under law, per reference (f), and the
requirements of policy, per reference (g), oblige the Navy to accommodate my religious freedom unless 1)
the military policy, practice, or duty is in furtherance of a compelling governmental interest, and 2) it is the
least restrictive means of furthering that compelling governmental interest. Both references (f) and (g) also
place the burden of proof for the compelling governmental interest and least restrictive means “upon the
DoD Component and not upon the individual requesting the exemption.” In denying my request, as
demonstrated throughout both enclosures (1) and (2), Vice Admiral Nowell failed to prove a compelling
governmental interest. In fact, Vice Admiral Nowell denied my request using a disapproval template and
relied upon a BUMED Memo which was also a preprepared template. Neither the disapproval template
used by Vice Admiral Nowell, nor the BUMED template used by Rear Admiral Gillingham, addressed in
any way the overwhelming evidence I provided in my original religious accommodation request from 15
September 2021, and my addendum from 19 October 2021.
Vice Admiral Nowell has violated both law and regulation in utilizing the discriminatory process
established in the DCNO(N1) SOP. This process attempts to circumvent established standards required by
both law and regulation while attempting to hide unlawful actions behind an intentionally designed façade
meant to wrongfully appear compliant with regulatory standards. The discriminatory process used by Vice
Admiral Nowell to disapprove my religious accommodation request has caused me personal detriment by
denying me my right to due process under the Fifth Amendment and my right to freedom of religious
expression under the First Amendment of the Constitution. The process used by Vice Admiral Nowell to
review religious accommodation requests must be brought into compliance with law and regulation
immediately before more sailors are harmed.
I have deep concerns that this complaint, detailing the discriminatory disapproval process for
religious accommodations in the Navy, will not be properly address and will instead be ignored and
dismissed. Due to these concerns I intend to copy this communication to both the House and Senate Armed
Pls.' Mot. for Classwide Prelim. Inj. App. 0010
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39. Open “TAB C - Coordination Page – Rank/Rate Last Name” to update the dates on the
coordination page to the current date of processing to match the folder. Save the changes.
40. Upon Completion of the file modification, move entire file to 4 - Ready for N131 Review\2
Awaiting N131 Review (LT Didawick) or 3 Awaiting N131 Review (CDR Cua) based on your
assigned reviewer identified on the organization chart.
41. Rename Folder and files with appropriate batch number
a. DD_MON_YY-1 (1st Batch)
b. DD_MON_YY-2 (2nd Batch)
42. After Review from Phase 4 is complete, drop files in the following folder:
\\naeawnydfs101v.nadsusea.nads.navy.mil\CS021$\BUPERS_ALTN_N45997_N1\COVID-19
RA
43. Link the spreadsheet in the folder to the locations by pressing CTRL+K on the word “here”
44. Email the N13 Front office that the folder is ready.
16 Pls.' Mot. for Classwide Prelim. Inj. App. 0027
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Pls.' Mot. for Classwide Prelim. Inj. App. 0028
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Pls.' Mot. for Classwide Prelim. Inj. App. 0029
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Pls.' Mot. for Classwide Prelim. Inj. App. 0030
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EXHIBIT B
Pls.' Mot. for Classwide Prelim. Inj. App. 0031
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Pls.' Mot. for Classwide Prelim. Inj. App. 0032
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Pls.' Mot. for Classwide Prelim. Inj. App. 0033
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EXHIBIT C
Pls.' Mot. for Classwide Prelim. Inj. App. 0034
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7 January 2022
Memorandum for all Members of the House and Senate Armed Services Committees
From: Commander Robert Alan Green Jr., U.S. Navy
Subject: Report of Navy-Endorsed Violations of Law, Regulation, and Constitutional Rights
Encl:
(1) Article 1150 Complaint of Wrong Against Vice Admiral Nowell for Unlawful
Religious Discrimination, submitted by CDR Robert A. Green Jr. on 23 December 2021
(2) DCNO (N1) Standard Operating Procedure for Religious Accommodations Nov 2021
I am an active duty U.S. naval officer and hereby submit this report under the Military Whistle-
blower Protection Act (10 U.S.C. § 1034) to share my internal Navy complaint, enclosure (1), which
documents multiple violations of law, regulation, and constitutional rights. These violations are being
committed by Navy leadership against military service members who express sincere religious beliefs that
preclude them from receiving a COVID-19 vaccination.
I received the Navy’s standard operating procedure (SOP) for processing religious accommoda-
tions, enclosure (2), after the document was made public by another whistleblower. The SOP was drafted
by the Navy’s Manpower, Personnel, Training, and Education Office, which is led by Vice Admiral John
Nowell. The SOP outlines the process for systematically denying COVID-19 religious accommodation
requests, and provides proof of religious discrimination and multiple violations of regulation and constitu-
tional rights. The SOP has been utilized by Vice Admiral Nowell and his staff to process the surge in
religious accommodation requests following the Secretary of Defense’s vaccine order of 24 August 2021.
On 23 December 2021, I filed a complaint against Vice Admiral Nowell, enclosure (1), for his use of this
unlawful and discriminatory process. My complaint was filed as an exhibit in the U.S. NAVY SEALs 1-26,
et al., v. BIDEN, et al., federal court case in the Northern District of Texas that very afternoon. The
evidence I provided in my complaint proved to be a crucial element in the case and was referenced multiple
times by Judge O’Connor in his ruling, which granted a preliminary injunction to the plaintiffs on 3 January
2022.
In his ruling, Judge O’Connor stated “[t]he Navy provides a religious accommodation process, but
by all accounts, it is theater.” Additionally, he highlighted policy inconsistencies, pointing out that the Navy
has granted exemptions to the vaccine mandate for a wide range of secular reasons, but insists on 100%
vaccination or disciplinary action for all service members seeking religious accommodation. This is clearly
discriminatory and a violation of the Constitution, federal law, and military regulation.
Despite Judge O’Connor’s ruling, it appears the Navy intends to continue this discriminatory denial
process. The Navy has proven incapable of policing itself. Therefore, I am requesting your involvement to
ensure the free exercise of religion in the Navy, and throughout the military. Please demand accountability
of our senior naval leaders for their unlawful actions and join in the call for an immediate end to religious
discrimination in our military. The defense of our Nation requires that service members are free to serve
without fear of discrimination or retaliation for faithfully adhering to the dictates of their conscience.
R. A. GREEN JR
CDR USN
Pls.' Mot. for Classwide Prelim. Inj. App. 0035
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Exhibit 2
Pls.' Mot. for Classwide Prelim. Inj. App. 0036
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1
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 BRIAN J. FERGUSON
Pursuant to 28 U.S.C. § 1746, I, Brian J. Ferguson, declare under penalty of perjury that
the following is true and correct:
1.
I am over the age of eighteen and am competent to make this declaration.
2.
I am a lawyer licensed to practice in the great State of Texas. I am admitted to
United States District Court for the Western District of Texas, the Navy-Marine Corps Court of
Criminal Appeals and the United States Court of Appeals for the Armed Forces.
Pls.' Mot. for Classwide Prelim. Inj. App. 0037
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2
3.
I primarily represent service members in the United States Navy and United States
Marine Corps pro bono as a civilian attorney. I have represented over 100 service members pro
bono as a civilian since 2011.
4.
I am also a judge advocate in the Air Reserve Component of the Air Force Judge
Advocate General’s Corps. This declaration is made entirely within my civilian capacity.
5.
My military clients have included Navy Explosive Ordnance Disposal Technicians,
SEALs, Special Warfare Combatant Craft Crewmen, and Navy Divers. Most of these clients are
Navy Sailors attached to United States Special Operations Command units.
Least Restrictive Means FOIA
6.
On December 23, 2021, I submitted a Freedom of Information Act (FOIA) request
to the Office of the Chief of Naval Operations. I requested all records for the “least restrictive
means analysis” used by the Navy to deny COVID-19 related religious accommodation waivers.
7.
On January 20, 2022, I received a response to my FOIA request from Mr. Gregory
Cason, Deputy Director of the Department of the Navy FOIA/PA Program office. A copy of the
response is attached hereto as Exhibit A.
8.
The Navy’s response states that the FOIA/PA Program Office “contacted the Chief
of Naval Personnel (N1) and the Navy Bureau of Medicine and Surgery (BUMED) to conduct a
search for applicable records regarding all responsive records supporting the following ‘least
restrictive means analysis’ used to deny COVID-19 related religious accommodation waivers.”
9.
The Navy’s response states that the Navy “identified 2 records totaling 50 pages
that are responsive to your request.” Those records were produced to me with the Navy’s response
and are attached hereto as Exhibit B and Exhibit C.
Pls.' Mot. for Classwide Prelim. Inj. App. 0038
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3
10.
The Navy has not identified or produced any other documents in response to this
FOIA request.
Records Actually Reviewed to Deny Request FOIA
11.
I am pro bono counsel for EOD1 Branden M. Vriens, USN, for matters before the
United States Navy. His request for a Request for Religious Accommodation Through Waiver of
Immunization was denied by the Navy.
12.
EOD1 Vriens is not a named Plaintiff in this matter. He is currently pending
medical discharge from the Navy for combat related injuries. His military pay rate makes hiring
an attorney experienced in federal court litigation cost prohibitive.
13.
On December 6, 2021, EOD1 Vriens submitted a FOIA request to the Department
of the Navy. He requested “[a]ll responsive records reviewed by the Deputy Chief of Naval
Operations (Manpower, Personnel, Training and Education) (N1) in adjudicating the Request for
Religious Accommodation Through Waiver of Immunization Requirements for EOD1 Branden
M. Vriens, USN.”
14.
On January 23, 2021, Mr. Gregory Cason, Deputy Director of the Department of
the Navy FOIA/PA Program Office, responded to EOD1 Vriens FOIA request. A copy of Mr.
Cason’s response is attached hereto as Exhibit D.
15.
The Navy’s response states that the FOIA/PA Program Office contacted OPNAV
Office N1 for the responsive records.
16.
The Navy’s response states that the Navy reviewed the responsive records, and
“they are releasable in their entirety.” While the Navy used the plural, they produced a single
record to EOD1 Vriens as part of the response. The record is attached hereto as Exhibit E.
17.
The Navy has not identified or produced other records as part of this request.
Pls.' Mot. for Classwide Prelim. Inj. App. 0039
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 42 of 160 PageID 4478
4
The Administrative Separation and Appeal Process
18.
I have represented Naval Special Warfare members in Administrative Separation
Boards since 2015. I have extensive experience with the discharge process, including appeals to
the Naval Discharge Review Board, the Board of Correction of Naval Records, and the Court of
Federal Claims.
19.
Based on my experience, the administrative separation and discharge process can
take months or years.
20.
The appeal process to the Naval Discharge Review Board (NDRB) and Board of
Correction for Naval Records (BCNR) routinely takes years.
21.
Even when service members are granted relief via these processes, there are
additional delays in providing that relief.
22.
To illustrate the delay in administrative separation: I represented a Special Warfare
Combatant Craft Crewmen before an Administrative Separation Board on October 24, 2019. The
member’s final separation did not occur until June of 2021.
23.
To illustrate the delay in appeals: I submitted an appeal to the Naval Discharge
Review Board for a former Naval Special Warfare member on December 8, 2020. There has still
been no notification of action on the submission. A request for an update, submitted on February
17, 2022, has not received a reply.
24.
To illustrate the delay in relief: I currently represent a former Naval Special Warfare
member before the Court of Federal Claims. The member’s command falsely accused him of
misconduct. Despite his demand for an opportunity to prove his innocence at a court-martial, the
Navy instead opted to send him directly to an Administrative Separation Board. The Board,
conducted on May 31, 2017, returned a finding of no misconduct. Nevertheless, despite the Board
Pls.' Mot. for Classwide Prelim. Inj. App. 0040
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 43 of 160 PageID 4479
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 43 of 160 PageID 4479
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Pls.' Mot. for Classwide Prelim. Inj. App. 0041
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 44 of 160 PageID 4480
EXHIBIT A
Pls.' Mot. for Classwide Prelim. Inj. App. 0042
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 45 of 160 PageID 4481
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON, DC 20350-2000
5720
Ser DNS-36GC/2U103150
January 20, 2022
Sent via email to: ferguson@abileneoperating.com
Mr. Brian Ferguson
PO BOX 302204
Austin, TX 78703
Dear Mr. Ferguson
This is in reference to your Freedom of Information Act
(FOIA)/Privacy Act (PA) request dated December 23, 2021. Your
request was received in our office on the same day and assigned
case number DON-NAVY-2022-002750
In the course of processing your FOIA request this office
contacted the Chief of Naval Personnel (N1) and the Navy Bureau
of Medicine and Surgery (BUMED) to conduct a search for
applicable records regarding All responsive records supporting
the following "least restrictive means analysis" used to deny
COVID-19 related religious accommodation waivers: "All
alternative measures for preventing spread of disease are
insufficient due to unique circumstances inherent in naval
service. Vaccination is the only viable option for achieving the
compelling interest."
Those offices have identified 2 records totaling 50 pages
that are responsive to your request. Upon review of these
records, it has been determined that they contain instances of
personally identifiable information (PII), such as the names,
dates of birth, and social security numbers of individuals.
These instances of PII are exempt from disclosure under 5 U.S.C.
§ 552(b)(6), since release of this information would result in a
clearly unwarranted invasion of their personal privacy. The
remainder of the records are released to you.
You have the right to an appeal within 90 calendar days
from the date of this letter. There are two ways to file an
appeal: through FOIAonline or by mail.
(1) Through FOIAonline. This will work only if you set
up an account on FOIAonline before you make the request that you
would like to appeal. To set up an account, go to FOIAonline
(this is a website that will appear as the top hit if you search
Pls.' Mot. for Classwide Prelim. Inj. App. 0043
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2
the internet for “FOIAonline”), click “Create Account” (a link
located within the blue banner at the top in the upper right
corner), enter your data into the field that subsequently
appears, and click “Save” (at the bottom left of the screen).
With your account thereby created, you will have the power to
file an appeal on FOIAonline to any request you file on
FOIAonline thereafter. To do so, locate your request (enter a
keyword or the request tracking number in the “Search for” field
on the “Search” tab), click on it, then the "Create Appeal" tab
in the left-hand column. Complete the subsequent field, click
“Save,” and FOIAonline will submit your appeal.
(2) By mail. Address your appeal to:
The Judge Advocate General (Code 14)
1322 Patterson Avenue SE, Suite 3000
Washington Navy Yard, DC 20374-5066
If filing an appeal by mail please provide a letter that
explains what you are appealing with any supporting arguments or
reasons you think may be worthy of consideration;
b.
A copy of your initial request;
c.
A copy of the letter of denial.
Also, please provide me a copy of your appeal letter at:
DONFOIA-PA@NAVY. MIL
For this determination, you have the right to seek dispute
resolution services from either the DoD Navy Component FOIA
Public Liaison, Mr. Chris Julka, at:
christopher.a.julka@navy.mil, via phone: (703) 697-0031; or by
contacting the Office of Government Information Services
at:(https://ogis.archives.gov/), (202) 741-5770, ogis@nara.gov.
In this instance, the fees associated with the processing
of your request are waived, but this action is not indicative of
how future requests will be handled.
Pls.' Mot. for Classwide Prelim. Inj. App. 0044
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3
Questions regarding the action this office has taken
during the processing of your request may be directed to
our FOIA service center at (202) 685-0412 or via email at
DONFOIA-PA@navy.mil, and reference the FOIA tracking
numbers cited above.
Sincerely,
G. Cason
Deputy Director,
DON FOIA/PA Program Office
Pls.' Mot. for Classwide Prelim. Inj. App. 0045
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EXHIBIT B
Pls.' Mot. for Classwide Prelim. Inj. App. 0046
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Pls.' Mot. for Classwide Prelim. Inj. App. 0047
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Pls.' Mot. for Classwide Prelim. Inj. App. 0048
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Pls.' Mot. for Classwide Prelim. Inj. App. 0049
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 52 of 160 PageID 4488
Pls.' Mot. for Classwide Prelim. Inj. App. 0050
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 53 of 160 PageID 4489
Pls.' Mot. for Classwide Prelim. Inj. App. 0051
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Pls.' Mot. for Classwide Prelim. Inj. App. 0052
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Pls.' Mot. for Classwide Prelim. Inj. App. 0053
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Pls.' Mot. for Classwide Prelim. Inj. App. 0054
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 57 of 160 PageID 4493
Pls.' Mot. for Classwide Prelim. Inj. App. 0055
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 58 of 160 PageID 4494
Pls.' Mot. for Classwide Prelim. Inj. App. 0056
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EXHIBIT C
Pls.' Mot. for Classwide Prelim. Inj. App. 0057
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DEPARTMENT OF THE NAVY
BUREAU OF MEDICINE AND SURGERY
7700 ARLINGTON BOULEVARD
FALLS CHURCH VA 22042
IN REPLY REFER TO
6320
Ser M44/21UM401
22 Sep 21
From: Chief, Bureau of Medicine and Surgery
To:
Deputy Chief of Naval Operations, Manpower, Personnel, Training, and Education (N1)
Subj: DISEASES TARGETED WITH MANDATORY VACCINATIONS FOR UNITED
STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL
1. Subject matter experts at the Bureau of Medicine and Surgery have compiled the below facts
on certain mandatory vaccines for United States (U.S.) Navy Active Duty and Reserve
personnel. The information below provides some of the scientific and medical rationale for the
vaccine requirements for vaccine-preventable diseases that would otherwise create risk to the
readiness of the Force.
2. Coronavirus Disease 2019 (COVID-19)
a. Means of infection and infectivity. Person-to-person transmission via respiratory fluids,
composed mainly of respiratory droplets and aerosol particles. Basic reproduction numbers (i.e.,
the number of people who become ill due to exposure to a single case) are estimated to be 2.8 for
the original strain, 4-5 for the Alpha variant, and 5-8 for the Delta variant. In other words, every
case of Delta variant COVID-19 can infect 5-8 people if effective countermeasures are not
employed.
b. Disease’s specific harm to health. COVID-19 symptoms are extremely unpredictable, and
range from non-existent (asymptomatic) to death. The most common symptoms are: fever or
chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches,
headache, loss of taste or smell, sore throat, congestion, nausea or vomiting, and diarrhea. These
more minor symptoms result in clinic visits, time off work, reduced productivity, possible
temporary incapacitation (requiring bed rest). Most serious cases may require hospitalization,
the need for oxygen support, and mechanical ventilation. Between 17 December 2020 and 31
August 2021, six Sailors and one Marine have died due to COVID-19; none of them were fully
immunized.
(1) The risk of complications from COVID-19 illness is significant. A recent Center for
Disease Control and Prevention (CDC) report showed COVID-19 patients had nearly 16 times
the risk for myocarditis compared with patients who did not have COVID-19, and this risk was
higher in younger age groups.
(2) In addition, there is a significant risk of persistent COVID symptoms after recovery
from acute illness, or “long COVID.” A recent study found that in patients who had recovered
from COVID-19, 87.4% reported persistence of at least one symptom, particularly fatigue and
Pls.' Mot. for Classwide Prelim. Inj. App. 0058
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Subj: DISEASES TARGETED WITH MANDATORY VACCINATIONS FOR UNITED
STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL
2
dyspnea at an average of 60 days after symptoms onset. Another found that nearly 2/3 of people
hospitalized with COVID-19 still had symptoms 6 months later.
c. Treatment required and level of medical treatment facility capable of delivering that
treatment. While mild cases may only require isolation and routine symptomatic care, severe
cases may rapidly require intensive resources (Role 3 hospital with Intensive Care Unit (ICU)
level care and mechanical ventilation) that are not routinely available in a deployed setting. A
recent study of over 43,000 COVID-positive patients in England showed the rate of
hospitalization within 14 days of testing was 2.2% for the Alpha variant and 2.3% for the Delta
variant (74% were unvaccinated).
d. Efficacy/effectiveness of available vaccine(s). In large phase III trials, the Food and Drug
Administration (FDA) approved COVID-19 vaccine was shown to have over 94% efficacy at
preventing symptomatic COVID-19. For the same vaccine, against the Delta variant in a real
world setting, studies show 88% effectiveness against symptomatic disease, to include
hospitalization and death. Nationally in the United States, per the CDC, from January through
August 2021, the unvaccinated comprised over 99% of all hospitalized COVID patients (over 1.6
million) as well as over 99% of all COVID-19 deaths (over 264,000). There have been zero
COVID-19 deaths of Sailors or Marines among those fully immunized, and zero deaths of
Sailors or Marines due to vaccination administration.
e. Likelihood of infection if unvaccinated. In a recent (24 Aug 2021) CDC report of over
43,000 SARS-CoV-2 infections in Los Angeles County, California (population approx. 9.6M),
over 71% of the infections were unvaccinated and over 85% of hospitalizations were
unvaccinated. The same study reported infection and hospitalization rates among unvaccinated
persons were 4.9 times and 29.2 times the rates of those for fully vaccinated people, respectively.
According to current surveillance data, nearly 87% of hospitalized Department of the Navy
(DON) Active Duty COVID-19 cases since 17 December 2020 are among unvaccinated service
members. For DON Service members who had COVID-19 since December 2020, surveillance
data indicates that hospitalization rates are approximately 500 per 100,000 cases, which is
substantially higher than for influenza (see paragraph 2b).
f. Other methods of prevention. For diseases transmitted by respiratory droplets and aerosol
particles such as COVID-19, the CDC recommends non-pharmaceutical interventions (NPI) in
addition to vaccination. NPIs recommended by the CDC to avoid contracting or spreading
COVID-19 have been categorized as either personal or community based. Personal interventions
comprise respiratory hygiene (covering the mouth and nose during coughing and sneezing),
avoiding touching the face, frequent hand washing, cleaning and disinfecting objects and
surfaces that are frequently touched, avoiding sick people, and self-quarantine when a person
feels unwell. Community-based actions include public education through a variety of
communication strategies, social distancing (6 feet), wearing facemasks, ensuring adequate
ventilation of indoor spaces, and restrictions on public gatherings.
g. Efficacy of non-pharmaceutical interventions. Despite the ability of NPIs to prevent
respiratory virus transmission, there are very limited data available on their effectiveness at the
individual level. Data on the effectiveness of NPIs implemented as community-wide mandates
Pls.' Mot. for Classwide Prelim. Inj. App. 0059
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Subj: DISEASES TARGETED WITH MANDATORY VACCINATIONS FOR UNITED
STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL
3
(where NPI impacts both source control and personal protection) would not be applicable at the
individual level.
(1) Recent studies have shown efficacy of mask wearing to prevent COVID-19. During a
COVID-19 outbreak on the USS THEODORE ROOSEVELT, persons who wore masks
experienced a 70% lower risk of testing positive for SARS-CoV-2 infection. Similar reductions
have been reported in case contact investigations when contacts were masked and in household
clusters in which household members were masked.
(2) However, in order to be effective, NPI must be implemented rigorously and
continuously, and breaches in implementation are common. This is particularly true in
communal environments such as aboard ships, in barracks, or in field situations; high rates of
transmission have been documented in schools and household settings. One study during a
recent mask mandate found that 90% of 5,893 individuals were observed not wearing a mask or
not wearing it correctly, despite 75.9% of those individuals self-reporting always wearing a mask
in public.
(3) Similarly, NPI such as masks provide measures of community protection, as described
above, only while they are in use. Because the scientific and medical communities predict that
SARS-CoV-2 will remain in global circulation as an endemic virus, the risk to the Force
associated with COVID-19 in unvaccinated personnel may exist in perpetuity.
h. Scientific and Medical opinion on whether non-pharmaceutical interventions, alone or
in concert, will be successful in meeting the compelling government interest. Any combination
of NPI, in the absence of vaccination, are not likely to be effective at preventing COVID-19
outbreaks and their resulting impacts on the Navy’s mission, especially in the setting of the
highly contagious Delta variant. Unlike NPI, vaccination provides its full measure of protection
in an enduring capacity, subject to potential boosters as recommended by the FDA. Vaccination
is not subject to reductions in efficacy due to incomplete implementation as with NPI. For this
reason, vaccination is significantly superior to NPI, and mask wearing, for preventing respiratory
infections such as COVID-19, especially when only implemented at the individual level and not
by the entire community.
3. Influenza
a. Means of infection. Person-to-person transmission via respiratory droplets. Basic
reproduction numbers are estimated to be 0.9-2.1, which means, on average, a person infected
with influenza will spread the virus to 1-2 other people, if no additional protective measures are
in place.
b. Disease’s specific harm to health. Typical symptoms include: fever, cough, sore throat,
runny nose, muscle aches, headaches, fatigue, and vomiting / diarrhea (more common in children
than adults). This results in clinic visits, time off work, reduced productivity, possible temporary
incapacitation (requiring bed rest), and viral shedding, potentially infecting those who come in
contact with the person. Hospitalization is rare among young adults with influenza, 3-7 per
100,000 age 18-49. The most common complications of influenza include secondary bacterial
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pneumonia, exacerbations of underlying respiratory conditions, otitis media,
laryngotracheobronchitis, and bronchitis. Other complications may include primary pneumonia,
encephalitis, aseptic meningitis, transverse myelitis, myocarditis, pericarditis, and Guillain-Barré
syndrome.
c. Treatment required and level of medical treatment facility capable of delivering that
treatment. For mild cases, rest at home /in quarters (in isolation), oral rehydration, antipyretics,
and medications to target symptoms. For severe cases or those with complications,
hospitalization (role 3 hospital, minimum) and ICU-level care with mechanical ventilation may
be required.
d. Efficacy of available vaccine(s). Although influenza vaccine effectiveness is variable from
season to season, since 2003, on average it has been 40% (range 10-60%). In addition, influenza
vaccination has been shown in several studies to reduce severity of illness in people who get
vaccinated but still get influenza illness. Influenza vaccination can also reduce transmission of
the virus, thus protecting family members, co-workers, and other contacts from getting sick.
Some of these contacts may be more vulnerable to serious influenza illness, like babies and
young children, the elderly, and those with certain chronic health conditions.
e. Periodicity of vaccine boosters. Annual vaccination is required due to changes in the
circulating viruses.
f. Likelihood of infection if unvaccinated. If unvaccinated for influenza, a Sailor will have a
higher risk of contracting the disease and transmitting it to co-workers. According to the Centers
for Disease Control and Prevention, the estimated annual incidence of influenza infection is
approximately 8% (varying from 3% to 11%); approximately half of these cases would be
symptomatic. However, outbreaks can be explosive, with attack rates exceeding 60% over
periods as short as 10 days.
g. Other methods of prevention. For diseases transmitted by respiratory droplets such as
influenza, the CDC recommends NPI in addition to vaccination. NPIs recommended by the
CDC to avoid contracting or spreading respiratory infections have been categorized as either
personal or community based. Personal interventions comprise respiratory hygiene (covering the
mouth and nose during coughing and sneezing), avoiding touching the face, frequent hand
washing, cleaning and disinfecting objects and surfaces that are frequently touched, avoiding
sick people, and self-quarantine when a person feels unwell. Community-based actions include
public education through a variety of communication strategies, social distancing (6 feet),
ensuring adequate ventilation of indoor spaces, and restrictions on public gatherings. The use of
masks may be appropriate in certain situations such as during periods of high community
transmission and when an individual or contact is immunocompromised.
h. Efficacy of other methods of prevention. Despite the potential for NPIs to prevent
respiratory virus transmission, there are very limited data available on their effectiveness at the
individual level. Data on the effectiveness of NPIs implemented as community-wide mandates
(where NPI impacts both source control and personal protection) would not be applicable at the
individual level.
Pls.' Mot. for Classwide Prelim. Inj. App. 0061
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5
(1) One published observational study out of Japan regarding influenza transmission
showed the overall effectiveness of mask wearing was 8.6%, while handwashing showed a
negative association (i.e., not protective). A meta-analysis of NPIs to prevent 2009 pandemic
influenza infection showed a statistically significant protective effect for regular hand hygiene
(38%) and a statistically non-significant protective effect for facemask use.
(2) In order to be effective, NPI must be implemented rigorously and continuously, and
breaches in implementation are common. This is particularly true in communal environments
such as aboard ships, in barracks, or in field situations; high rates of transmission have been
documented in schools and household settings. One study during a recent mask mandate found
that 90% of 5,893 individuals were observed not wearing a mask or not wearing it correctly,
despite 75.9% of those individuals self-reporting always wearing a mask in public.
i. Medical opinion on whether other methods of prevention, alone or in concert, will be
successful in meeting the compelling government interest. Any combination of NPI in the
absence of vaccination are not likely to be effective at preventing influenza outbreaks and their
resulting impact on the Navy’s mission. Vaccination is not subject to reductions in efficacy due
to incomplete implementation as with NPI. For this reason, and given the limited data available,
it appears vaccination is significantly superior to NPI and mask wearing in particular, for
preventing respiratory infections such as influenza, especially when only implemented at the
individual level and not by the entire community.
4. Tetanus
a. Means of infection. The bacteria that causes tetanus, C. tetani, usually enters the body
through a wound. In the presence of anaerobic conditions, the spores germinate. Toxins are
produced and disseminated via blood and lymphatics.
b. Disease’s specific harm to health. On the basis of clinical findings, three different forms of
tetanus have been described.
(1) The most common type (more than 80% of reported cases) is generalized tetanus. The
disease usually presents with a descending pattern. The first sign is trismus, or lockjaw,
followed by stiffness of the neck, difficulty in swallowing, and rigidity of abdominal muscles.
Other symptoms include elevated temperature, sweating, elevated blood pressure, and episodic
rapid heart rate. Spasms may occur frequently and last for several minutes. Spasms continue for
3 to 4 weeks. Complete recovery may take months.
(2) Localized tetanus is an uncommon form of the disease in which patients have
persistent contraction of muscles in the same anatomic area as the injury. These contractions
may persist for many weeks before gradually subsiding. Localized tetanus may precede the
onset of generalized tetanus, but is generally milder.
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6
(3) Cephalic tetanus is a rare form of the disease, occasionally occurring with otitis media
in which clostridium tetani is present in the flora of the middle ear or following injuries to the
head. There is involvement of the cranial nerves, especially in the facial area.
(4) Complications of tetanus are common. Laryngospasm or spasm of the muscles of
respiration leads to interference with breathing. Fractures of the spine or long bones may result
from sustained contractions and convulsions. Hyperactivity of the autonomic nervous system
may lead to hypertension or an abnormal heart rhythm. Nosocomial infections are common
because of prolonged hospitalization. Secondary infections may include sepsis from indwelling
catheters, hospital-acquired pneumonias, and decubitus ulcers. Pulmonary embolism is
particularly a problem in persons who use drugs and elderly patients. Aspiration pneumonia is a
common late complication of tetanus, found in 50% to 70% of autopsied cases. In recent years,
tetanus has been fatal in approximately 11% of reported cases.
c. Treatment required and level of medical treatment facility capable of delivering that
treatment. Tetanus cases must be treated in a tertiary care facility with capability to provide long
term ICU care and mechanical ventilation. Tetanus immune globulin (TIG) is recommended for
persons with tetanus. Intravenous immune globulin (IVIG) contains tetanus antitoxin and may
be used if TIG is not available. Because of the extreme potency of the toxin, tetanus disease
does not result in tetanus immunity. Active immunization with tetanus toxoid should begin or
continue as soon as the person’s condition has stabilized.
d. Efficacy of available vaccine(s). Efficacy of the tetanus toxoid has never been studied in a
vaccine trial. It can be inferred from protective antitoxin levels that a complete tetanus toxoid
series has an efficacy of almost 100%. In the series of 233 cases from 2001–2008, only 7 cases
(3%) had received a complete tetanus toxoid series with the last dose within the last 10 years.
e. Periodicity of vaccine boosters. Every 10 years.
f. Likelihood of infection if unvaccinated. While tetanus is rare in the US (averaging 31
cases per year for 2000-2007), nearly all of those cases were in unvaccinated or under-vaccinated
individuals. Tetanus is much more common outside the US; in 2015 there were approximately
209,000 infections and about 59,000 deaths globally. As noted above, vaccine efficacy is high,
with over 32 times the risk for unvaccinated persons compared to vaccinated.
g. Other methods of prevention. Usual safety measures can help prevent injuries resulting in
cuts or puncture wounds from contaminated objects.
h. Efficacy of non-pharmaceutical interventions. At the individual level, such accidents are
common and have proven difficult to prevent.
i. Medical opinion on whether other methods of prevention, alone or in concert, will be
successful in meeting the compelling government interest. Safety measures alone will not likely
be successful in preventing tetanus-prone wounds.
5. Diphtheria
Pls.' Mot. for Classwide Prelim. Inj. App. 0063
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7
a. Means of infection. Transmission of diphtheria is most often person-to-person through
respiratory droplets. Transmission may also occur from exposure to infected skin lesions or
articles soiled with discharges from these lesions. The basic reproduction number is about 2.6.
b. Disease’s specific harm to health. This may be a spectrum, but should include worst case
scenarios and likelihood of worst case scenarios. Understand that co-morbidities play a
significant role in these calculations, and our population tends to lack co-morbidities. The most
common form of diphtheria results in a membranous pharyngitis and tonsillitis, with symptoms
of fever, sore throat, malaise, and anorexia. While some patients may recover at this point
without treatment, others may develop severe disease. The patient may appear quite toxic, but
the fever is usually not high. Patients with severe disease may develop marked edema of the
submandibular areas and the anterior neck along with lymphadenopathy, giving a characteristic
“bull neck” appearance. If enough toxin is absorbed, the patient can develop severe prostration,
pallor, rapid pulse, stupor, and coma. Death can occur within 6 to 10 days. Death occurs in 5-
10% of diphtheria cases.
c. Treatment required and level of medical treatment facility capable of delivering that
treatment. In addition to supportive care, as described for influenza and COVID-19, specific
treatments include antitoxin and antibiotics. Diphtheria antitoxin, produced in horses, has been
used for treatment of respiratory diphtheria in the United States since the 1890s. Diphtheria
antitoxin is available only from CDC, through an Investigational New Drug (IND) protocol.
Diphtheria antitoxin does not neutralize toxin that is already fixed to tissues, but it will neutralize
circulating toxin and prevent progression of disease.
(1) After a provisional clinical diagnosis of respiratory diphtheria is made, appropriate
specimens should be obtained for culture and the patient placed in isolation. Persons with
suspected diphtheria should be promptly given diphtheria antitoxin and antibiotics in adequate
dosage, without waiting for laboratory confirmation. Respiratory support and airway
maintenance should also be provided as needed. Consultation on the use of and access to
diphtheria antitoxin is available through the duty officer at CDC’s Emergency Operations Center
at 770-488-7100.
(2) In addition to diphtheria antitoxin, patients with respiratory diphtheria should also be
treated with antibiotics. The disease is usually no longer contagious 48 hours after antibiotics
have been given. Elimination of the organism should be documented by two consecutive
negative cultures taken 24 hours apart, with the first specimen collected 24 hours after therapy is
completed.
d. Efficacy of available vaccine(s). Diphtheria toxoid-containing vaccine has been estimated
to have an efficacy of 97%.
e. Periodicity of vaccine boosters. Every 10 years in adults.
Pls.' Mot. for Classwide Prelim. Inj. App. 0064
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8
f. Likelihood of infection if unvaccinated. Diphtheria is rare in the U.S. (14 cases were
reported between 1996 and 2018), but it is much more common outside the U.S. where
vaccination coverage is suboptimal (4,500 cases worldwide in 2015).
g. Other methods of prevention. For diseases transmitted by respiratory droplets such as
diphtheria, the CDC recommends non-pharmaceutical interventions (NPI) in addition to
vaccination, although widespread vaccination has all but eliminated disease incidence in the U.S.
(ex. no cases in 2017 and 2018 according to World Health Organization, which largely
eliminated the subsequent need for diphtheria-related NPI in practice). NPIs recommended by
the CDC to avoid contracting or spreading respiratory infections have been categorized as either
personal or community based. Personal interventions comprise respiratory hygiene (covering the
mouth and nose during coughing and sneezing), avoiding touching the face, frequent hand
washing, cleaning and disinfecting objects and surfaces that are frequently touched, avoiding
sick people, and self-quarantine when a person feels unwell. Community-based actions include
public education through a variety of communication strategies, social distancing (6 feet),
ensuring adequate ventilation of indoor spaces, and restrictions on public gatherings. The use of
masks may be appropriate in certain situations such as during periods of high community
transmission and when an individual or contact is immunocompromised.
h. Efficacy of non-pharmaceutical interventions. While we are not aware of any studies
evaluating the efficacy of NPI specifically for diphtheria, it is likely the effectiveness of most
NPI would be similar to that for other infections transmitted by respiratory droplets.
(1) Despite the potential for NPIs to prevent respiratory disease transmission, there are
very limited data available on their effectiveness at the individual level. Data on the
effectiveness of NPIs implemented as community-wide mandates (where NPI impacts both
source control and personal protection) would not be applicable at the individual level.
(2) In order to be effective, NPI must be implemented rigorously and continuously, and
breaches in implementation are common. This particularly true in communal environments such
as aboard ships, in barracks, or in field situations; high rates of transmission have been
documented in schools and household settings. One study during a recent mask mandate found
that 90% of 5,893 individuals were observed not wearing a mask or not wearing it correctly,
despite 75.9% of those individuals self-reporting always wearing a mask in public.
i. Medical opinion on whether non-pharmaceutical interventions, alone or in concert, will be
successful in meeting the compelling government interest. Any combination of NPI in the
absence of vaccination are not likely to be effective at preventing diphtheria outbreaks and their
resulting impact on the Navy’s mission. Vaccination is not subject to reductions in efficacy due
to incomplete implementation as with NPI. For this reason, and given the limited data available,
it appears vaccination is significantly superior to NPI and mask wearing in particular, for
preventing respiratory infections such as diphtheria, especially when only implemented at the
individual level and not by the entire community.
6. Pertussis. Note: there is no pertussis vaccine preparation that does not contain tetanus and
diphtheria toxoids.
Pls.' Mot. for Classwide Prelim. Inj. App. 0065
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9
a. Means of infection. Transmission most commonly occurs person-to-person through
contact with respiratory droplets, or by contact with airborne droplets of respiratory secretions.
Transmission occurs less frequently by contact with an infected person’s freshly contaminated
articles. The basic reproduction number is about 5.5.
b. Disease’s specific harm to health. The clinical course of pertussis is divided into three
stages: catarrhal (with symptoms similar to the common cold lasting 1-2 weeks), paroxysmal
(with more severe cough and paroxysms of numerous rapid coughs lasting 1-6 weeks), and
convalescent (with gradual recovery over weeks to months). The most common complication
and cause of death is secondary bacterial pneumonia, occurring in 13.2% of cases. Between
2000 and 2017, 307 deaths from pertussis were reported to CDC, mostly in children. Adults may
also develop complications of pertussis, such as difficulty sleeping, urinary incontinence,
pneumonia, rib fracture, syncope, and weight loss
c. Treatment required and level of medical treatment facility capable of delivering that
treatment. Varying levels of supportive management are required, depending on severity of
disease, as with influenza and COVID-19. Antibiotics are of some value if administered early
(i.e., during the first 1 to 2 weeks of cough before coughing paroxysms begin).
d. Efficacy of available vaccine(s). Diphtheria, Tetanus, and Pertussis (DTaP) vaccine
efficacy ranged from 80% to 85%, with overlapping confidence intervals.
e. Periodicity of vaccine boosters. Every 10 years.
f. Likelihood of infection if unvaccinated. Reported pertussis incidence has been
gradually increasing in the U.S. since the late 1980s and early 1990s, and large epidemic peaks
in disease have been observed since the mid-2000s. A total of 48,277 pertussis cases were
reported in 2012, the largest number reported since the mid-1950s. Recent outbreaks of pertussis
in the U.S. were due to low vaccination rates with large numbers of vaccine refusals (over 75%
in one cluster) based on nonmedical reasons. The disease is more common outside the U.S.; an
estimated 16.3 million people worldwide were infected in 2015, with 58,700 deaths.
g. Other methods of prevention, such as non-pharmaceutical interventions. For diseases
transmitted by respiratory droplets such as pertussis, the CDC recommends non-pharmaceutical
interventions (NPI) in addition to vaccination. NPIs recommended by the CDC to avoid
contracting or spreading respiratory infections have been categorized as either personal or
community based. Personal interventions comprise respiratory hygiene (covering the mouth and
nose during coughing and sneezing), avoiding touching the face, frequent hand washing,
cleaning and disinfecting objects and surfaces that are frequently touched, avoiding sick people,
and self-quarantine when a person feels unwell. Community-based actions include public
education through a variety of communication strategies, social distancing (6 feet), ensuring
adequate ventilation of indoor spaces, and restrictions on public gatherings. The use of masks
may be appropriate in certain situations such as during periods of high community transmission
and when an individual or contact is immunocompromised.
Pls.' Mot. for Classwide Prelim. Inj. App. 0066
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Pls.' Mot. for Classwide Prelim. Inj. App. 0067
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Pls.' Mot. for Classwide Prelim. Inj. App. 0068
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 71 of 160 PageID 4507
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 71 of 160 PageID 4507
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Pls.' Mot. for Classwide Prelim. Inj. App. 0070
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 73 of 160 PageID 4509
Pls.' Mot. for Classwide Prelim. Inj. App. 0071
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 74 of 160 PageID 4510
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 75 of 160 PageID 4511
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Pls.' Mot. for Classwide Prelim Inj. App. 0073
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 77 of 160 PageID 4513
Pls.' Mot. for Classwide Prelim. Inj. App. 0075
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 78 of 160 PageID 4514
Pls.' Mot. for Classwide Prelim Inj. App. 0076
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 79 of 160 PageID 4515
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 79 of 160 PageID 4515
Pls.' Mot. for Classwide Prelim. Inj. App. 0077
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 80 of 160 PageID 4516
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 80 of 160 PageID 4516
Pls.' Mot. for Classwide Prelim. Inj. App. 0078
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 81 of 160 PageID 4517
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 81 of 160 PageID 4517
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 82 of 160 PageID 4518
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 82 of 160 PageID 4518
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Pls.' Mot. for Classwide Prelim. Inj. App. 0080
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 83 of 160 PageID 4519
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 83 of 160 PageID 4519
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 84 of 160 PageID 4520
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 84 of 160 PageID 4520
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 85 of 160 PageID 4521
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 85 of 160 PageID 4521
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Pls.' Mot. for Classwide Prelim. Inj. App. 0083
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 86 of 160 PageID 4522
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 86 of 160 PageID 4522
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Pls.' Mot. for Classwide Prelim. Inj. App. 0084
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 87 of 160 PageID 4523
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 87 of 160 PageID 4523
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 88 of 160 PageID 4524
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 88 of 160 PageID 4524
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Pls.' Mot. for Classwide Prelim. Inj. App. 0086
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 89 of 160 PageID 4525
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 89 of 160 PageID 4525
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Pls.' Mot. for Classwide Prelim. Inj. App. 0087
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 90 of 160 PageID 4526
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 90 of 160 PageID 4526
Pls.' Mot. for Classwide Prelim. Inj. App. 0088
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 91 of 160 PageID 4527
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 91 of 160 PageID 4527
Pls.' Mot. for Classwide Prelim. Inj. App. 0089
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 92 of 160 PageID 4528
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 92 of 160 PageID 4528
Pls.' Mot. for Classwide Prelim. Inj. App. 0090
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 93 of 160 PageID 4529
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 93 of 160 PageID 4529
Pls.' Mot. for Classwide Prelim. Inj. App. 0091
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 94 of 160 PageID 4530
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 94 of 160 PageID 4530
Pls.' Mot. for Classwide Prelim. Inj. App. 0092
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 95 of 160 PageID 4531
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 95 of 160 PageID 4531
Pls.' Mot. for Classwide Prelim. Inj. App. 0093
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 96 of 160 PageID 4532
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 96 of 160 PageID 4532
Pls.' Mot. for Classwide Prelim. Inj. App. 0094
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 97 of 160 PageID 4533
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 97 of 160 PageID 4533
Pls.' Mot. for Classwide Prelim. Inj. App. 0095
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 98 of 160 PageID 4534
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 98 of 160 PageID 4534
Pls.' Mot. for Classwide Prelim. Inj. App. 0096
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 99 of 160 PageID 4535
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 99 of 160 PageID 4535
Pls.' Mot. for Classwide Prelim. Inj. App. 0097
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 100 of 160 PageID 4536
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 100 of 160 PageID 4536
EXHIBIT D
Pls.' Mot. for Classwide Prelim. Inj. App. 0098
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 101 of 160 PageID 4537
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 101 of 160 PageID 4537
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON, DC 20350-2000
5720
Ser DNS-36GC/21U103110
December 23, 2021
Mr. Branden M Vriens
Dear Mr. Vriens:
This is in reference to your Freedom of Information Act
(FOIA)/Privacy Act (PA) request dated December 6, 2021. Your
request was received in our office on the same day and assigned
case number DON-NAVY-2022-002169.
In the course of processing your FOIA request, this office
contacted OPNAV OfficeN1, to conduct a search for applicable
records. Accordingly, N1 has searched their database for records
relating to “All responsive records reviewed by the Deputy Chief
of Naval Operations (Manpower, Personnel, Training and
Education) (N1) in adjudicating the Request for Religious
Accommodation Through Waiver of Immunization Requirements for
EOD1 Branden M. Vriens, USN. (For ease of reference notification
of the denial was sent on 29 Nov 21 under ltr 1730 Ser
N1/116214.)” Upon review of the responsive records, it has been
determined that they are releasable in their entirety.
You have the right to an appeal within 90 calendar days
from the date of this letter. There are two ways to file an
appeal: through FOIAonline or by mail.
(1) Through FOIAonline. This will work only if you set
up an account on FOIAonline before you make the request that you
would like to appeal. To set up an account, go to FOIAonline
(this is a website that will appear as the top hit if you search
the internet for “FOIAonline”), click “Create Account” (a link
located within the blue banner at the top in the upper right
corner), enter your data into the field that subsequently
appears, and click “Save” (at the bottom left of the screen).
With your account thereby created, you will have the power to
file an appeal on FOIAonline to any request you file on
FOIAonline thereafter. To do so, locate your request (enter a
keyword or the request tracking number in the “Search for” field
on the “Search” tab), click on it, then the "Create Appeal" tab
in the left-hand column. Complete the subsequent field, click
“Save,” and FOIAonline will submit your appeal.
Pls.' Mot. for Classwide Prelim. Inj. App. 0099
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 102 of 160 PageID 4538
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 102 of 160 PageID 4538
(2) By mail. Address your appeal to:
The Judge Advocate General (Code 14)
1322 Patterson Avenue SE, Suite 3000
Washington Navy Yard, DC 20374-5066
If filing an appeal by mail please provide a letter that
explains what you are appealing with any supporting arguments or
reasons you think may be worthy of consideration;
b. A copy of your initial request;
c. A copy of the letter of denial.
Also, please provide me a copy of your appeal letter at:
DONFOIA-PA@NAVY. MIL
In this instance, the fees associated with the processing
of your request are waived, but this action is not indicative of
how future requests will be handled.
For this determination, you have the right to seek dispute
resolution services from either the DoD Navy Component FOIA
Public Liaison, Mr. Chris Julka, at:
Christopher.a.julka@navy.mil, via phone: (703) 697-0031; or by
contacting the Office of Government Information Services
at:(https://ogis.archives.gov/), (202) 741-5770, ogis@nara.gov.
Questions regarding the action this office has taken during
the processing of your request may be directed to our FOIA
service center at (202) 685-0412 or via email at
DONFOIA-PA@navy.mil, and reference the FOIA tracking numbers
cited above.
Sincerely,
G. Cason
Deputy Director,
DON FOIA/PA Program Office
Pls.' Mot. for Classwide Prelim. Inj. App. 0100
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 103 of 160 PageID 4539
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 103 of 160 PageID 4539
EXHIBIT E
Pls.' Mot. for Classwide Prelim. Inj. App. 0101
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 104 of 160 PageID 4540
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 104 of 160 PageID 4540
No.
Name
Rate
Rank DESIG
Tasker #
Religion
Specifics
Duty Type
Requesting
Command
Homeport
AC
RC
Compelling
Government Interest
Least Restrictive Means Analysis
Synopsis: Full Range of the facts
Synopsis: Full
Range of the facts
Synopsis: Full Range
of the facts
Synopsis: Full Range
of the facts
Synopsis: Full Range
of the facts
N13 Recommendation
5
Vriens, Brandon EOD1
E6
N/A
N131-3248 Christian Immunizations CONUS SEA
EODMU 11
AC Health/Safety of the Force
All alternative measures for
preventing spread of disease are
insufficient due to unique
circumstances inherent in naval
service. Vaccination is the only
viable option for achieving the
compelling interest.
EOD1 Vriens' request is based on his religious
beliefs against abortion and the use of fetal stem cells
in the development of vaccines. Member is LIMDU,
pending a medical board. Member is currently
assigned to EOD Mobile Unit 11 for sea duty.
CO's endorsements
make no
recommendation.
ISIC endorsements
recommends
approval.
Chaplain states their
beliefs are sincere.
BUMED recommends
disapproval based on
significant medical
risks associated with
granting such a waiver.
Legal states it is not
legally objectionable to
disapprove the request.
Recommend disapproval
of the request due to the
negative impact to
military readiness and
health of the force.
Pls.' Mot. for Classwide Prelim. Inj. App. 0102
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 105 of 160 PageID 4541
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 105 of 160 PageID 4541
Exhibit 3
Pls.' Mot. for Classwide Prelim. Inj. App. 0103
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 106 of 160 PageID 4542
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 106 of 160 PageID 4542
1
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 LIEUTENANT COMMANDER ERIK V. DE SOUSA, USN
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 have served in the United States Navy for 10 years. I have the rank of Lieutenant
Commander (O-4). I received a BS in Naval Architecture from the U.S. Naval Academy in 2011
and a MS in Naval/Mechanical & Total Ship Systems Engineering from the Naval Postgraduate
School in 2018. I am currently the Program Manager’s Representative (PMR) for the
Expeditionary Fast Transport (T-EPF) shipbuilding program, an Acquisition Category (ACAT) 1
program under the purview of Supervisor of Shipbuilding, Conversion & Repair Gulf Coast, a
Pls.' Mot. for Classwide Prelim. Inj. App. 0104
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 107 of 160 PageID 4543
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 107 of 160 PageID 4543
2
Naval Sea Systems Command (NAVSEA) field activity. We provide on-site, hands-on contract
oversight for new construction ships in order to ensure on-time delivery of ships to the fleet. We
operate out of the Navy Administration Building at the Austal USA shipyard in Mobile, AL, and
we also get underway for various sea trial events. I have 5 government civilians reporting to me
as well as several dozen government civilians and government contractors providing matrixed
support for testing, quality assurance, engineering, and contract management, and finance.
3.
I have a sincere religious objection to receiving the COVID-19 vaccination as
mandated by the Navy and submitted a religious accommodation request on 30 August 2021. This
accommodation request was disapproved by the Chief of Naval Personnel (CNO N1) on 17
November 2021. On 01 December 2021, I appealed the disapproval by CNP to the Chief of Naval
Operations. On 14 February 2022, I received the denial of my appeal from the Chief of Naval
Operations.
4.
On 22 February 2022 I submitted a renewed religious accommodation request.
According to BUPERSINST 1730.11A ¶ 5f(2), “When a religious accommodation request is
denied, the requestor may renew the request upon change in physical, operational or geographical
environment, or at any time in which there is a change to pertinent policy.” In my accommodation
request, I explained that my operational environment had changed since August because I have
since contracted and recovered from a mild case of COVID-19 in January 2022 and noted
widespread COVID infection among vaccinated co-workers and other military officials despite
vaccination. The BUMED letter relied on to deny my religious accommodation request was dated
in September 2021, making it outdated in light of more recent COVID-19 developments. My
religious accommodation request is attached to this declaration as Exhibit A.
Pls.' Mot. for Classwide Prelim. Inj. App. 0105
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 108 of 160 PageID 4544
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 108 of 160 PageID 4544
Pls.' Mot. for Classwide Prelim. Inj. App. 0106
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 109 of 160 PageID 4545
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 109 of 160 PageID 4545
EXHIBIT A
Pls.' Mot. for Classwide Prelim. Inj. App. 0107
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 110 of 160 PageID 4546
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 110 of 160 PageID 4546
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Pls.' Mot. for Classwide Prelim. Inj. App. 0108
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 111 of 160 PageID 4547
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 111 of 160 PageID 4547
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Pls.' Mot. for Classwide Prelim. Inj. App. 0109
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 112 of 160 PageID 4548
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 112 of 160 PageID 4548
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Pls.' Mot. for Classwide Prelim. Inj. App. 0110
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 113 of 160 PageID 4549
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 113 of 160 PageID 4549
)D19
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Pls.' Mot. for Classwide Prelim. Inj. App. 0111
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 114 of 160 PageID 4550
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 114 of 160 PageID 4550
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DESOUSA.ERI
K.VINCENT.1
299139375
Digitally signed by
DESOUSA.ERIK.VIN
CENT.1299139375
Date: 2022.02.22
21:29:21 -06'00'
Pls.' Mot. for Classwide Prelim. Inj. App. 0112
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 115 of 160 PageID 4551
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 115 of 160 PageID 4551
DEPARTMENT OF THE NAVY
BUREAU OF MEDICINE AND SURGERY
7700 ARLINGTON BOULEVARD
FALLS CHURCH VA 22042
IN REPLY REFER TO
6320
Ser M44/21UM40232
28 Sep 21
From: Chief, Bureau of Medicine and Surgery
To:
Deputy Chief of Naval Operations (Manpower, Personnel, Training, and Education) (N1)
Subj:
REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS ICO LT ERIK V. DeSOUSA, USN
Ref:
(a) LT DeSousa’s Waiver Request of 30 Aug 21
(b) BUMED Memo, Diseases Targeted with Mandatory Vaccinations for U.S.
Navy Active Duty and Reserve Personnel of 22 Sep 21
(c) BUMED INST 6230.15B, Immunizations and Chemoprophylaxis for the Prevention
of Infectious Diseases, 7 Oct 2013
(d) SECNAVINST 1730.8B CH-1
1. Subject matter experts at the Bureau of Medicine and Surgery have reviewed reference (a).
Per reference (a), LT DeSousa objects to receiving all immunizations developed or tested using
fetal cells based on his religious beliefs.
2. Fetal embryo fibroblast cells are used to grow viruses for multiple vaccines, including
adenovirus, varicella (chickenpox), rubella (the “R” in the MMR vaccine), hepatitis A, one
preparation of rabies vaccine, two combination vaccines containing the polio vaccine virus, and
two formulations of zoster (shingles) vaccine. The FDA-approved Coronavirus Disease 2019
(COVID-19) vaccine did not require the use of any fetal cell cultures in order to manufacture the
vaccine, however, early in the development of mRNA vaccine technology, fetal cells were used
for “proof of concept” or to characterize the SARS-CoV-2 spike protein. All other vaccines,
including tetanus, diphtheria, pertussis, influenza, etc., are not derived from fetal cells. No
alternative formulations grown without fetal cells are currently available for COVID-19,
adenovirus, varicella, rubella, and hepatitis A vaccines.
3. All vaccines required for maintenance of individual medical readiness and vaccines required
for specific overseas deployments meet the safety requirements of the U.S. Food and Drug
Administration (FDA), and have demonstrated effectiveness in disease prevention.
4. Per reference (c), Active Duty and Reserve Component personnel will receive or be up-to-
date on adult routine vaccinations. Details of required vaccinations are outlined in this
instruction and are available at www.health.mil/vaccines.
5. A waiver of immunization requirements would have detrimental effects on the readiness of
both LT DeSousa and Service members who serve alongside LT DeSousa. Primary prevention
of disease through immunizations is a key enabler for maintaining force health protection and
avoiding disease-related non-battle injury, and has been the cornerstone of these efforts for
decades. Recent outbreaks of contagious viral diseases aboard Navy ships highlight the
(QFO
Pls.' Mot. for Classwide Prelim. Inj. App. 0113
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 116 of 160 PageID 4552
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 116 of 160 PageID 4552
Subj:
RELIGIOUS ACCOMMODATION REQUEST THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS ICO LT ERIK V. DeSOUSA, USN
operational impact of low levels of immunity. Diseases such as COVID-19 are highly
contagious and can rapidly degrade individual and unit readiness. In the current COVID-19
pandemic, the outbreak aboard the USS THEODORE ROOSEVELT in March 2020, resulted in
71 days of unavailability for a forward deployed aircraft carrier. There was an infection rate of
more than 26% of the crew as confirmed by laboratory testing within 5 weeks of the initial
positive case (including four hospitalizations and one death, according to data published in
Journal of The American Medical Association 11 November 2020). This outbreak resulted in
crew-wide quarantine, isolation, and repeated testing, and highlights the importance of
vaccination to both individual and unit force health protection. Additional information on the
potential impacts of vaccine-preventable diseases is provided in reference (b).
6. The scientific and medical communities believe that SARS-CoV-2 will likely remain in
global circulation as an endemic virus and a threat to the Force. The emergence of the SARS-
CoV-2 Delta variant shows that while some vaccinated personnel may transmit the virus, they
are largely protected against severe illness and death. Unvaccinated individuals remain at risk
for developing COVID-19 and propagating new variants that may adversely impact the readiness
of the Force.
7. Vaccination remains the most effective means to prevent COVID-19 (as well as influenza,
pertussis, diphtheria, tetanus, and other diseases). Optimally, vaccination should be coupled with
other countermeasures to minimize risk of infections to the Sailor’s health, co-workers’ health,
and to Navy’s mission. In large phase III trials, the FDA-approved COVID-19 vaccine
demonstrated over 94% efficacy in preventing symptomatic COVID-19. For the same vaccine,
against the Delta variant in a real world setting, studies show 88% effectiveness against
symptomatic disease, to include hospitalization and death. Additional information on the
efficacy of other vaccines is provided in reference (b).
8. Per reference (d), the religious objection of the Service member must be balanced against the
medical risk to the Service member and their military unit. The Department of Defense has a
compelling interest in mission accomplishment and safeguarding the health of military Service
members. In this case, the medical risks of not receiving required vaccines outweigh the
religious objection that LT DeSousa has stated in reference (a).
9. A waiver of required immunizations is not recommended due to the aforementioned reasons.
10. My point of contact is ****************, MC, USN, Preventive Medicine, who can be
reached at ****************
****************
Deputy Chief
Business Operations
2
(QFO
Pls.' Mot. for Classwide Prelim. Inj. App. 0114
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 117 of 160 PageID 4553
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 117 of 160 PageID 4553
Pls.' Mot. for Classwide Prelim. Inj. App. 0115
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 118 of 160 PageID 4554
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 118 of 160 PageID 4554
Dear Flock of East Texas,
“To know that God is not distant but close, not indifferent but compassionate, not aloof but
a merciful Father who follows us lovingly with respect for our freedom: all this is a cause of
deep joy which the alternating ups and downs of daily life cannot touch.”
Pope John Paul II, Angelus, Third Sunday of Advent, 2003
As the Bishop of the Roman Catholic Diocese of Tyler, I wish you peace as we approach the end
of a challenging 2020 and unwavering faith as we enter 2021. We have walked together through
these difficult times. Soon we will face the availability of vaccines which we hope will alleviate
the painful consequences of COVID-19 and its spread. Along with other Christian leaders, I have
stressed the importance of ensuring that vaccines respect the dignity of human life and do not
use the remains of electively aborted children in any part of the process.
We have the responsibility to make an informed and moral choice as to the use of a particular
vaccine. The Church teaches: “Conscience must be informed and moral judgment enlightened. A
well-formed conscience is upright and truthful. It formulates its judgments according to reason,
in conformity with the true good willed by the wisdom of the Creator” (Catechism of the Catholic
Church 1783). Christians are called to form their consciences in accordance with what is true as
revealed in natural law and divine revelation and to act accordingly when deciding about the use
of a COVID-19 vaccine.
Every procured abortion murders an innocent human person. For university, government, or
industrial scientists to use materials obtained from the remains of an electively aborted child in
the research, development, testing, or production of any vaccine is immoral and constitutes
formal cooperation in evil. We must never cease to protest this practice with maximum
determination to defend the dignity and sacredness of children in the womb. They are not objects
to be used but persons to be received as gifts, our brothers and sisters. As your shepherd, I cannot
in good conscience receive a vaccine that has been produced using an aborted child. There are
ethical vaccines in development which are worth waiting for.
The instructions, which were promulgated in Dignitas Personae in 2008, say we have a duty to
ask healthcare systems to do better. In this time of Covid-19, Catholic leaders have not asked for
better. Too many have accepted the exploitation of aborted children. I urge you to reject any
vaccine that uses the remains of aborted children in research, testing, development, or
production. Testify to the truth that abortion must be rejected and make a choice that is
consistent with the dignity of every human life from conception to natural death and is rooted in
a mature faith and trust in eternal life, not fear of suffering in this life.
&ODM
Pls.' Mot. for Classwide Prelim. Inj. App. 0116
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 119 of 160 PageID 4555
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 119 of 160 PageID 4555
As bishop, I affirm the call from the American Association of Pro-Life Obstetricians and
Gynecologists, American College of Pediatricians, Catholic Medical Association, and Christian
Medical and Dental Associations that we should all “expect and demand vaccines that are safe,
effective, and ethically sound” (Joint Statement, December 2, 2020). Until that day, I urge all of
us to exercise patience and to educate our conscience by studying the teaching of the Church.
Then remain faithful to the truth concerning the dignity of every human life. We must prayerfully
consider how we might best conform our will to Jesus Christ and seek the good in all things for
ourselves, for our families, and for our communities. To echo Dignitas Personae, may we here in
East Texas “mobilize our consciences in favour of life.”
Most Reverend Joseph E. Strickland
Bishop of Tyler
&ODM
Pls.' Mot. for Classwide Prelim. Inj. App. 0117
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 120 of 160 PageID 4556
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 120 of 160 PageID 4556
&ODM
Pls.' Mot. for Classwide Prelim. Inj. App. 0118
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 121 of 160 PageID 4557
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 121 of 160 PageID 4557
Pls.' Mot. for Classwide Prelim. Inj. App. 0119
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 122 of 160 PageID 4558
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 122 of 160 PageID 4558
Pls.' Mot. for Classwide Prelim. Inj. App. 0120
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 123 of 160 PageID 4559
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 123 of 160 PageID 4559
Pls.' Mot. for Classwide Prelim. Inj. App. 0121
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 124 of 160 PageID 4560
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 124 of 160 PageID 4560
Pls.' Mot. for Classwide Prelim. Inj. App. 0122
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 125 of 160 PageID 4561
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 125 of 160 PageID 4561
Pls.' Mot. for Classwide Prelim. Inj. App. 0123
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 126 of 160 PageID 4562
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 126 of 160 PageID 4562
EXHIBIT B
Pls.' Mot. for Classwide Prelim. Inj. App. 0124
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 127 of 160 PageID 4563
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 127 of 160 PageID 4563
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000
1730
Ser N1/118244
24 Feb 22
From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To:
LCDR Erik V. DeSousa, USN
Via:
Commanding Officer, Supervisor of Shipbuilding Conversion and Repair Gulf Coast
Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE
Ref:
(a) LCDR Erik V. DeSousa, USN ltr of 22 Feb 22 w/ends
(b) BUPERSINST 1730.11A
(c) DCNO/N1 RA Response ltr of 17 Nov 21
(d) CNO Appeal RA Response ltr of 10 Feb 22
1. Your request in reference (a) is denied. Contrary to your assertion, there have been no
substantive changes to the physical environment since your original request and appeal. The
compelling government interest in ensuring mission accomplishment, to include military
readiness, unit cohesion, good order and discipline, health and safety, on both individual and unit
levels remains the same.
2. As provided in reference (b), members are afforded the opportunity to renew requests when
the physical, operational, or geographical environment in which they work or operate has
changed. In your case, the environment has not materially changed. Specifically, and as already
noted in references (c) and (d), you remain an Engineering Duty Officer and continue to fill a
vital billet at your command, interacting on the waterfront with essential Navy personnel.
Further, a waiver of the COVID-19 immunization would continue to have a predictable and
detrimental effect on your readiness and the readiness of the Sailors who serve alongside you in
both operational and non-operational environments. Granting your request would still have a
direct and foreseeable negative impact on the compelling government interests of military
readiness and health of the force. Finally, while no vaccine is completely effective, vaccines
reduce disease incidence and disease severity.
JOHN B. NOWELL, JR
Copy to:
OPNAV (N131, N0975)
BUMED
NOWELL.JOHN.BL
ACKWELDER.JR.1
057611835
Digitally signed by
NOWELL.JOHN.BLACKWELDER
.JR.1057611835
Date: 2022.02.24 20:42:10 -05'00'
Pls.' Mot. for Classwide Prelim. Inj. App. 0125
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 128 of 160 PageID 4564
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 128 of 160 PageID 4564
EXHIBIT C
Pls.' Mot. for Classwide Prelim. Inj. App. 0126
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 129 of 160 PageID 4565
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 129 of 160 PageID 4565
From: Schneider, Nathan A CAPT USN SUPSHIP GULFCOAST MS (USA)
<nathan.a.schneider.mil@us.navy.mil>
Sent: Friday, February 25, 2022 4:18 PM
To: DeSousa, Erik Vincent LCDR USN SUPSHIP GULFCOAST MS (USA) <erik.v.desousa.mil@us.navy.mil>
Cc: Suarez, S M (Sal) CAPT USN SUPSHIP GULFCOAST MS (USA) <salvador.m.suarez2.mil@us.navy.mil>;
Massey, Mark A Jr CPO USN (USA) <mark.a.massey22.mil@us.navy.mil>
Subject: FW: CNO Religious Accommodation Appeal Response ICO LT Erik DeSousa
Erik,
The DCNO has responded to your RA stating that the conditions described do not constitute valid
“change[s] in physical, operational or geographical environment” – see attached.
Please note that IAW guidance, we need to start the administrative separation process possibly as early
as next week unless you elect to request resignation by 1 June 2022 (14 days from the disapproval of the
appeal ‐ will be following up w/ PERS‐834 to determine how to address this given the additional RA
request). With that in mind, please let me know how you would like to proceed once you’ve had a
chance to review.
V/R,
CAPT Nate Schneider
SSGC CO
W: (228) 935‐0275
nathan.a.schneider.mil@us.navy.mil
From: Cua, Diane S CDR USN DCNO N1 (USA) <diane.s.cua.mil@us.navy.mil>
Sent: Friday, February 25, 2022 3:26 PM
To: Schneider, Nathan A CAPT USN SUPSHIP GULFCOAST MS (USA)
<nathan.a.schneider.mil@us.navy.mil>; Navy Religious Accommodations
<ALTN Navy Religious Accommodations@navy.mil>
Cc: Katson, Mery Angela Sanabria CAPT USN DCNO N1 (USA) <mery.a.katson.mil@us.navy.mil>; Cua,
Diane S CDR USN DCNO N1 (USA) <diane.s.cua1@navy.mil>; richard.a.neuer@navy.mil; Johnson, Katelyn
A PO2 USN (USA) <katelyn.a.johnson2@navy.mil>; Suarez, S M (Sal) CAPT USN SUPSHIP GULFCOAST MS
(USA) <salvador.m.suarez2.mil@us.navy.mil>; Massey, Mark A Jr CPO USN (USA)
<mark.a.massey22.mil@us.navy.mil>
Subject: RE: CNO Religious Accommodation Appeal Response ICO LT Erik DeSousa
CAPT Schneider,
Good afternoon. Please find attached DCNO N1’s response to LCDR DeSousa’s request for waiver of
policy in support of religious practice. The conditions described do not constitute valid “change[s] in
physical, operational or geographical environment.” Therefore, the previously adjudicated Religious
Accommodation from CNO remains in effect. Request you (or your designee):
(1) acknowledge receipt of DCNO N1’s letter by responding to this email (kindly reply to all above).
(2) provide DCNO N1’s response to LCDR DeSousa.
Pls.' Mot. for Classwide Prelim. Inj. App. 0127
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 130 of 160 PageID 4566
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 130 of 160 PageID 4566
(3) update the CCDA database with the appropriate entry. Specifically, change the entry from
“unvaccinated, pending religious accommodation” to (NAVADMIN 249/21):
a. ‘unvaccinated, vaccination series started but not complete’ if the service member
initiated the two series vaccination (Pfizer or Moderna), OR
b. ‘vaccination series complete, previously reported as unvaccinated’ if the service
member received the one shot vaccination (Johnson & Johnson), OR
c. ‘unvaccinated, refuser’ if the service member decided to not comply with CNO’s
direction.
Note: These updates can be made via the My Navy Portal Site: https://www.mnp.navy.mil/group/navy‐
covid‐19‐reporting (NAVADMIN 249/21 pertains).
V/r
Diane
CDR Diane Cua
OPNAV N131B
Deputy Branch Head, Officer Plans and Policy
diane.s.cua.mil@us.navy.mil
Office: (703) 604‐5023
From: Schneider, Nathan A CAPT USN SUPSHIP GULFCOAST MS (USA)
<nathan.a.schneider.mil@us.navy.mil>
Sent: Wednesday, February 23, 2022 11:43 AM
To: Navy Religious Accommodations <ALTN Navy Religious Accommodations@navy.mil>
Cc: Katson, Mery Angela Sanabria CAPT USN DCNO N1 (USA) <mery.a.katson.mil@us.navy.mil>; Cua,
Diane S CDR USN DCNO N1 (USA) <diane.s.cua1@navy.mil>; richard.a.neuer@navy.mil; Johnson, Katelyn
A PO2 USN (USA) <katelyn.a.johnson2@navy.mil>; Suarez, S M (Sal) CAPT USN SUPSHIP GULFCOAST MS
(USA) <salvador.m.suarez2.mil@us.navy.mil>; DeSousa, Erik Vincent LCDR USN SUPSHIP GULFCOAST MS
(USA) <erik.v.desousa.mil@us.navy.mil>; Massey, Mark A Jr CPO USN (USA)
<mark.a.massey22.mil@us.navy.mil>
Subject: RE: CNO Religious Accommodation Appeal Response ICO LT Erik DeSousa
Good morning. LCDR DeSousa is requesting a new reasonable accommodation be considered due to a
change in operational environment ‐ please see attached.
V/R,
CAPT Nate Schneider
SSGC CO
W: (228) 935‐0275
nathan.a.schneider.mil@us.navy.mil
From: Katson, Mery Angela Sanabria CAPT USN DCNO N1 (USA) <mery.a.katson.mil@us.navy.mil>
Sent: Monday, February 14, 2022 5:47 AM
To: Suarez, S M (Sal) CAPT USN SUPSHIP GULFCOAST MS (USA) <salvador.suarez@navy.mil>; Schneider,
Nathan A CAPT USN SUPSHIP GULFCOAST MS (USA) <nathan.a.schneider3@navy.mil>
Pls.' Mot. for Classwide Prelim. Inj. App. 0128
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 131 of 160 PageID 4567
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 131 of 160 PageID 4567
Cc: Katson, Mery Angela Sanabria CAPT USN DCNO N1 (USA) <mery.a.katson.mil@us.navy.mil>; Cua,
Diane S CDR USN DCNO N1 (USA) <diane.s.cua1@navy.mil>; richard.a.neuer@navy.mil; Johnson, Katelyn
A PO2 USN (USA) <katelyn.a.johnson2@navy.mil>
Subject: CNO Religious Accommodation Appeal Response ICO LT Erik DeSousa
CAPT Suarez,
Good morning. Please find attached LT DeSousa’s fully adjudicated Religious Accommodation Appeal from CNO
Gilday. This is the final step in the Religious Accommodation process. Request you (or your designee):
(1) acknowledge receipt of the CNO’s letter by responding to this email (kindly reply to all above).
(2) provide the CNO’s response to LT DeSousa and remind him of the requirement to initiate vaccination
against COVID‐19 within five (5) calendar days upon receipt of this letter and become fully vaccinated
by following the required vaccine series protocol.
(3) update the CCDA database with the appropriate entry after the five (5) calendar days has passed.
Specifically, change the entry from “unvaccinated, pending religious accommodation” to (NAVADMIN
249/21):
a.
‘unvaccinated, vaccination series started but not complete’ if the service member initiated the
two series vaccination (Pfizer or Moderna), OR
b.
‘vaccination series complete, previously reported as unvaccinated’ if the service member
received the one shot vaccination (Johnson & Johnson), OR
c.
‘unvaccinated, refuser’ if the service member decided to not comply with CNO’s direction by the
fifth calendar day.
Note: These updates can be made via the MyNavy Portal Site: https://www.mnp.navy.mil/group/navy‐
covid‐19‐reporting (NAVADMIN 249/21 pertains).
Thank you,
V/r CAPT Mery‐Angela S. Katson
COVID‐19 Religious Accommodation Appeals Team Lead
701 South Courthouse Road, Bldg 12, Suite 301
Arlington, VA 22204
Pls.' Mot. for Classwide Prelim. Inj. App. 0129
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 132 of 160 PageID 4568
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 132 of 160 PageID 4568
Exhibit 4
Pls.' Mot. for Classwide Prelim. Inj. App. 0130
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 133 of 160 PageID 4569
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 133 of 160 PageID 4569
Pls.' Mot. for Classwide Prelim. Inj. App. 0131
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 134 of 160 PageID 4570
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 134 of 160 PageID 4570
Pls.' Mot. for Classwide Prelim. Inj. App. 0132
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 135 of 160 PageID 4571
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 135 of 160 PageID 4571
Pls.' Mot. for Classwide Prelim. Inj. App. 0133
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 136 of 160 PageID 4572
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 136 of 160 PageID 4572
EXHIBIT A
Pls.' Mot. for Classwide Prelim. Inj. App. 0134
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 137 of 160 PageID 4573
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 137 of 160 PageID 4573
23 Feb 22
From: LT Daniel Franklin, USN
To:
Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education)
(N1)
Via:
CAPT Steven Beall, Commanding Officer, Naval School Explosive Ordnance Disposal
Subj:
REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE
Ref:
(a) DOD Instruction 1300.17
(b) SECNAVINST 1730.8
(c) BUPERSINST 1730.11A
Encl:
(1) CNO disapproval 15 Feb 22
(2) OPNAV N13 ltr 1730 Ser N13/306 of 17 Nov 21
(3) BUMED ltr 6320 Ser M44/21UM401 of 22 Sep 21
(4) Positive Serological test for Covid-19 T-cells
(5) Naval Medical Intel report of 11 February 2022
(6) Study Comparing SARS-CoV-2 natural immunity to vaccine-induced immunity, Gazit
(7) CDC FOIA Response, 05 Nov 21
(8) Defense Medical Epidemiology Database (DMED) data, 26 Jan 22
1. Per references (a) and (b), the Department of the Navy (DoN) recognizes that religion can be as
integral to a person’s identity as one’s race or sex. To that extent, DoN promotes a culture of
diversity, tolerance, and excellence by making every effort to accommodate religious practices
absent a compelling operational reason to the contrary. Religious medical practices include
traditional objections to receiving immunizations. It is DoN policy to accommodate the traditional
observances of the religious faith practiced by individual members when these doctrines or
observances will not have an adverse impact on military readiness, individual or unit readiness, unit
cohesion, health, safety, discipline, or mission accomplishment. Immunizations requirements may
be waived when requested by the member based on religious objection.
2. Per enclosure (1) [CNO Denial Letter], I received denial of my Religious Accommodation (RA)
appeal request from the CNO dated 15 February 2022. I am submitting a new RA request per
BUPERSINST 1730.11A which states as follows:
5f(2) When a religious accommodation request is denied, the requestor may renew
the request upon change in physical, operational or geographical environment, or at
any time in which there is a change to pertinent policy.
Since my original request for RA dated 20 September 2021, my physical and operational
environment has changed significantly in the last 5 months as follows:
a.
I contracted the COVID-19 virus on 24 December 2021, with mild throat, fever, chills and
headache symptoms associated with the Omicron variant and have natural immunity that I
did not have previously. See enclosure (4), Positive Serological test for Covid-19 T-cells;
Pls.' Mot. for Classwide Prelim. Inj. App. 0135
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b. I received a positional change and am no longer a command division officer;
c.
100% of active duty staff at my command are now vaccinated and/or went through natural
infection and recovery from the COVID-19 virus. Mr. Lloyd Austin (SECDEF), Gen Mark
Milley (Chairman, Joint Chiefs of Staff), Mr. Vivek Murthy (U.S. Surgeon General), Navy
Secretary Carlos Del Toro (SECNAV) and other military leaders have contracted COVID-
19 despite receiving a complete vaccination series including boosters. World-wide reports
clearly indicate current COVID-19 vaccinations do not prevent contraction or spread of the
COVID-19 virus;
d. The Omicron variant emerged and swept across the Nation and my geographical area,
drastically shifting the nature of the COVID-19 pandemic and providing proven natural
immunity;
e.
Evidence of widespread harm from the COVID-19 vaccines are now known, including but
not limited to data from the CDC/FDA database VAERS and Defense Medical
Epidemiology Database (DMED);
f.
Federal vaccine mandates were stopped in courts, including the OSHA requirement. The
five DoD contractors I work with in my division are now not required to be vaccinated.
g. Ongoing Federal court cases continue to reveal discrepancies in DoD following Federal and
Constitutional law in the implementation of its COVID-19 Vaccine mandate among DoD
personnel;
3. Upon reading the OPNAV N13 letter I received with my appeal denial, enclosure (2), in
opposition to my previous request for RA, I would like to proactively address some of the
information that is contained therein as follows:
a. Per paragraph 1, the OPNAV N13 letter states it is the Navy’s compelling government
interest to prevent the spread of vaccine-preventable communicable diseases among sailors.
However, this does not apply to any of the current COVID-19 vaccines available. The efficacy of
the current COVID-19 vaccinations is based on reducing symptoms if exposed and preventing
severe illness or death. None of the COVID-19 vaccinations prevent contracting the predominant
Omicron variant virus, or transmission of the virus as evidenced by world-wide reports and current
Navy COVID-19 virus positivity tracking data.
b. The OPNAV N13 letter states only 1.7% of sailors who were fully vaccinated contracted
a breakthrough case and 23.3% of unvaccinated became infected up to October 2021. This is
misleading and outdated. Force vaccination rates were changing throughout 2021 and were not a
fixed number. According to Naval Medical Intel report of 11 February 2022, enclosure (5), from
December 2020 to February 2022 a total of 15,855 non-vaccinated sailors became infected. In the
same time frame 28,966 fully vaccinated sailors became infected. There is an 82% increase in
vaccinated sailors contracting COVID-19 over unvaccinated sailors contracting COVID-19. Not
only is vaccination failing to prevent disease, it appears vaccination increases the risk of contracting
Pls.' Mot. for Classwide Prelim. Inj. App. 0136
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COVID-19, and does not serve the alleged compelling government interest of preventing the spread
of disease.
c.
The OPNAV letter states “even one unvaccinated Sailor, after contracting COVID-19
affects mission accomplishment” then two paragraphs later mentions, “The small group of Sailors
who have temporary medical exemptions and the very small group with permanent medical
exemptions are at higher risk”. It is not congruent with the protections of the Constitution to state
the Navy’s compelling government interest is achieved through approving unvaccinated medical
and administrative exemptions while simultaneously disapproving every single Religious
Accommodation request.
4. Upon reading the BUMED letter I received with my appeal denial, enclosure (3), in opposition
to my previous request for RA, I would like to proactively address some of the information that is
contained therein as follows:
a.
Per para 7, the BUMED letter refers to phase III trials of the FDA approved COVID-19
vaccine. Of note, the only COVID-19 vaccines that are currently approved by the FDA are
“COMIRNATY” by BioNTech Manufacturing GmbH (Mainz, Germany) and “SPIKEVAX” by
Moderna, neither of which are available in the United States presently as stated in the 31 Jan 2022
letter to Moderna, Inc. which states:
“Although SPIKEVAX (COVID-19 Vaccine, mRNA) and Comirnaty (COVID-19
Vaccine, mRNA) are approved to prevent COVID-19 in certain individuals, within the
scope of the Moderna COVID-19 Vaccine authorization, there is not sufficient approved
vaccine available for distribution to this population in its entirety at the time of
reissuance of this EUA.”
b. Currently, all COVID-19 vaccinations available to service members are
only authorized by the FDA for Emergency Use Authorization (EUA) only. Per 21 USC Sec.
360bbb-3, vaccinations under EUA are voluntary, unless waived by POTUS per 10 USC Sec.
1107a, DoDI 1300.17, DoDI 6200.02 and DoDI 6205.02.
c. The BUMED letter cites the COVID-19 outbreak on the USS THEODORE
ROOSEVELT that occurred in March 2021, prior to wide-spread vaccinations. A similar outbreak
later happened to the USS MILWAULKEE (LCS 5) in December 2021 with a crew that was 100%
vaccinated. One third of the crew tested positive for COVID-19. This ship was isolated in port,
removing the unit from executing its mission capabilities for several days. A similar COVID-19
outbreak occurred on USS HALSEY (DDG 97) with one-third of the crew testing positive for
COVID-19. Both outbreaks (among others) clearly demonstrate that vaccination status does not
preserve mission accomplishment.
5. Both the OPNAV and BUMED letters I received applied the threat of COVID-19 while working
and living on-board a ship referring to situations such as narrow passage-ways, community berthing
and messing areas. Shipboard comparisons are inapplicable to my current assignment and for future
assignments as I follow the narrow EOD LDO career path for the duration of my career.
BUPERSINST 1730.11A, reference (c) states, “Each request for religious accommodation must be
reviewed on a case-by-case basis, giving consideration to the full range of facts and circumstances
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relevant to the specific request”. Also, “It is essential that commanders articulate the factual basis
underlying any compelling government interest and that they articulate why a recommended denial
or partial denial is the least restrictive means available to the commander to protect the compelling
government interest over the individual request”. By making a denial based upon ship-board
operations that do not apply to my case-by-case bases, this requirement was not met. The Religious
Freedom Restoration Act of 1993 (RFRA) states the Government may substantially burden an
individual’s exercise of religion only if it demonstrates that the application of the burden to the
person is: (1) in furtherance of a compelling governmental interest, and (2) is the least restrictive
means of furthering that interest. The burden rests with the government to demonstrate both factors
in their entirety, not the individual requesting the exemption per DoDI 1300.17, September 1, 2020.
My original RA request, subsequent appeal, and this renewed RA request demonstrate facts that the
DOD’s vaccination mandate is not the least restrictive means to further the interest of mission
accomplishment and unit readiness. The original disapproval from CNP and subsequent Appeal
disapproval from CNO fail to explain how vaccination outweighs my sincerely held beliefs to
accomplish the mission and promote good order and discipline, nor do they explain how this would
detrimentally affect me and my unit’s readiness. Using the information throughout this RA, despite
not bearing the burden, I demonstrate how the COVID-19 vaccination is not the least restrictive
means available to preserve military readiness, mission accomplishment and the health and safety of
military service members. The government must show it cannot accommodate the religious
adherent while achieving its interest through a viable alternative. The government cannot meet this
burden.
6. The arrival of the Omicron variant occurred after my originally submitted RA and Omicron was
not mentioned at all in the supporting OPNAV or BUMED letters I received. Omicron was first
identified in South Africa on 11 November 2021 and quickly spread around the globe entirely
changing the nature of the COVID-19 pandemic. Though more transmissible than prior variants, it
had significantly lower instances leading to hospitalization and almost non-existent instances of
death directly relating to COVID-19 infection. On 10 January 2022, the European Medicines
Agency (EMA) based in Amsterdam reported that the spread of Omicron was pushing COVID-19
towards an endemic disease that humanity can live with. Numerous regulatory agencies and
medical governance authorities have also denied repeated boosters as a sustainable strategy. Marco
Cavaleri, head of vaccine strategy at EMA reported “With the increase of immunity in population –
and with Omicron, there will be a lot of natural immunity taking place on top of vaccination – we
will be fast moving towards a scenario that will be closer to endemicity”. Additionally, Spain
released a study of Omicron on 20 January 2022 stating “once infected, index vaccinated cases
seem to have the same transmission capacity as non-vaccinated people.” A study by the Africa
Health Research Institute found the antibody response of people infected with Omicron increased
protection against the Delta variant more than fourfold. “These results are consistent with Omicron
displacing the Delta variant, since it can elicit immunity which neutralizes Delta making re-
infection with Delta less likely” reported the team of scientists led by Khadija Khan. Any
evaluation on the COVID-19 disease and vaccines is not complete or current without considering
the altering impact Omicron had around the globe.
7. Natural immunity was not mentioned at all in the OPNAV or BUMED letters I received
although many countries, scientists and doctors are discussing it with many studies supporting the
effectiveness of natural immunity. https://brownstone.org/articles/79-research-studies-affirm-
naturally-acquired-immunity-to-covid-19-documented-linked-and-quoted/ provides 150 studies,
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reports and papers supporting the evidence of natural immunity vs vaccine induced immunity. In
on such study, enclosure (6), Gazit et al. conducted “a retrospective observational study comparing
three groups: (1) SARS-CoV-2-naïve individuals who received a two-dose regimen of the
BioNTech/Pfizer mRNA BNT162b2 vaccine, (2) previously infected individuals who have not been
vaccinated, and (3) previously infected and single dose vaccinated individuals”. In Model 1,
findings revealed a 13-fold increased risk of breakthrough Delta infections in double vaccinated
persons, and a 27-fold increased risk for symptomatic breakthrough infection in double vaccinated
relative to the natural immunity recovered persons. Additionally, the risk of hospitalization was 8
times higher in the double vaccinated. In conclusion, “this analysis demonstrated that natural
immunity affords longer lasting and stronger protection against infection, symptomatic disease and
hospitalization due to the Delta variant of SARS-CoV-2, compared to the BNT162b2 two-dose
vaccine induced immunity.” I have fully recovered from a prior COVID-19 infection and still carry
naturally protective T-cell immunity as shown in my positive, serological T-cell test, enclosure (4).
In their response to a FOIA request, the CDC reinforced natural immunity on 05 Nov 2021 when
they failed to provide even one document evidencing a single case where an individual infected
with SARS-Cov-2, recovered and then later became re-infected or infected others, enclosure (7).
8. The COVID-19 vaccines are now known to have caused physical bodily harm in numbers far
surpassing standard vaccine adverse events. This is seen in data from the Defense Medical
Epidemiology Database (DMED). On January 24th attorney Thomas Renz representing three
military doctors testified to Senator Ron Johnson about the highly concerning trends found in the
DMED database. Enclosure (8) details the information and actual screen shots taken directly from
DMED. Comparing data from a 5-year average 2016-2020 to the data during 2021 when vaccines
were implemented is alarming. To list some of the examples, unspecified chest pain increased by
1,529%, Acute Myocarditis increased by 285%, Pulmonary Embolism increased by 467%, HIV
increased by 590%, Spontaneous Abortion increased by 306%. This is clear harm done to DoD
service members. Within days of this whistleblower release, DMED was taken off-line. When it
was put back online the numbers were “fixed” to show no large discrepancies through 2016-2021.
The damaging effects of these vaccines are being actively hidden.
9. In addition to hiding how unsafe the vaccines are, concerted efforts have been taken to actively
hide how ineffective they are. For example, prior to 26 August 2021 the definition of vaccine on
the CDC website was “A product that stimulates a person’s immune system to produce immunity to
a specific disease, protecting the person from that disease.” Since September 2021, the CDC
changed the definition of vaccine to “A preparation that is used to stimulate the body’s immune
response against diseases.” Which is now the new definition of vaccine as found on Merriam
Webster dictionary website. Further, on 20 February 2022, the New York times reported “the CDC
has been routinely collecting information since the Covid vaccines were first rolled out last year,
according to a federal official familiar with the effort. The agency has been reluctant to make those
figures public, the official said, because they might be misinterpreted as the vaccines being
ineffective.” Data regarding the effectiveness of the vaccines is actively being hidden.
10. Federal court cases continue to reveal discrepancies in DoD following Federal and
Constitutional law in the implementation of its COVID-19 Vaccine mandate among DoD personnel.
Below are three recent examples:
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a.
On 3 Jan 2022, Judge Reed O’Connor issued a preliminary injunction for plaintiffs in
U.S. NAVY SEALS 1-26, et al, v. JOSEPH R. BIDEN, JR., et al. Plaintiffs had
submitted RA requests but were not provided the legal review required in evaluating
their submissions. The Court noted that the Navy utilized a “six-phase, fifty step
process” wherein at Phase 1 the administrator is instructed to update a prepared
disapproval template with the requestor’s name and rank. Based upon the boilerplate
rejection template, it appears the RA review process is pre-determined and sidesteps an
individualized review process as required by law. The Judge called the Navy RA review
process “theater” stating it “merely rubber stamps each denial.” The Judge further
states, “The COVID-19 pandemic provides the government no license to abrogate those
[religious] freedoms. There is no COVID-19 exception to the First Amendment. There is
no military exclusion from our Constitution.” Based upon the documents presented to
the Court and the Judge’s acknowledgement of the blanket denial process of all RA
requests, I am submitting a new RA request for an individualized case-by-case review as
required under the law.
b. On 15 February 2022, Judge Tillman Self issued a preliminary injunction for the
plaintiff in AIR FORCE OFFICER, v. LLOYD J. AUSTIN, III et al. The Judge states,
“Plaintiff’s claim that she has been “forced to choose between her sincerely held
religious beliefs and her livelihood” undoubtedly checks the box for an allegation of a
deprivation of a constitutional right or violation of an applicable federal statute.”. In
conclusion, the Judge also states, “Given “the Nation’s essential commitment to
religious freedom[,]” Plaintiff’s harm—a constitutional injury involving her right to
freely exercise her religion—is not a mere trivial grievance. Church of Lukumi, 508 U.S.
at 524. And, what real interest can our military leaders have in furthering a requirement
that violates the very document they swore to support and defend? The Court is
unquestionably confident that the Air Force will remain healthy enough to carry out its
critical national defense mission even if Plaintiff remains unvaccinated and is not forced
to retire.”
c.
On 18 February 2022, Judge Steven Merryday issued a preliminary injunctive relief for
two plaintiffs in NAVY SEAL 1, et al v. LLOYD J. AUSTIN, et al. Within the order,
the Judge states, “Requiring a service member either to follow a direct order contrary to
a sincerely held religious belief or to face immediate processing for separation or other
punishment undoubtedly causes irreparable harm.”
11. This Religious Accommodation request is for waiver from COVID-19 immunizations and
routine and non-routine vaccines. As a believer in Christ, I am called to test and look into all
prophecies and claims (1 Thess 5:21) and to search for understanding as if it were a treasure (Prov
2:3-4). As such, I diligently researched the COVID-19 disease and the related vaccines in search of
understanding. Though my situation and the dynamic nature of the Covid-19 pandemic has
changed and further information has become available, my religious beliefs and convictions have
stayed the same. Following is the basis of my convictions in how I am to live in the reality of this
disease and vaccines as governed by my faith rooted in God’s Holy Word.
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As of this writing, the Navy reports eight out of 346,000 active duty sailors have passed
away from COVID-19 since December 2020, enclosure (5). This equates to a .002% chance of
death to sailors such as myself. The chance of myself or any sailor dying in a car crash driving to
work is 8 times more likely at .016% per National Safety Council. The heightened level of fear for
COVID-19 does not match the threat of the disease to service members. As a believer, I have been
commanded not to be overcome by fear or live my life in a constant state of fear (Joshua 1:9, 2 Tim
1:7). If I partake in the vaccine, I would be bearing a false witness to my spiritual beliefs and will
be complicit in the effects of this hysterical fear upon my life.
The immense national and global pressure to take the COVID-19 vaccine is unlike any other
vaccine in history. It is being pushed by governments, employers and big tech companies on the
news, on the radio, on the internet, on social media, on billboards, in newspapers, essentially
anywhere one turns. Taking the COVID-19 vaccine has clearly been ascribed supreme importance,
absolute and worthy of special reverence. These qualities are what make a religion. To receive
these vaccines, I would be guilty of subjecting myself to the demands of those who have idolized
COVID-19 vaccination as the only way to live a happy life. However, I am a follower of Christ and
I am commanded not to follow or have affection for any other gods (Exodus 20:3-5).
Observing history, the evil actions of the drug and vaccine industry are clearly evident.
Simply look into AZT for AIDs, the Polio Cutter Incident and Polio SV40, Swine Flu vaccine and
the Stanley Plotkin deposition. From vaccines contaminated with viruses to experimentation on
babies whose mothers were imprisoned. These historical examples show how greed, rushed FDA
approvals and conflicts of interest resulted in a multitude of innocent humans killed or permanently
maimed over decades. These same actions, especially rushed FDA approval, took place for
COVID-19 vaccines. There is not a single medical professional or expert in the world who can
describe or state with particularity the long-term effects of the current COVID-19 vaccines.
However, we now know what the near-term affects are. As of this writing, there are 23,990
reported deaths and 43,476 permanently disabled individuals by COVID-19 vaccines as shown in
the VAERS public database managed by the CDC and FDA. Comparably, only 605 deaths were
reported as adverse events to all vaccines combined in the calendar year 2019 (prior to COVID-19
vaccines). During the Swine Flu vaccine debacle in 1976, the vaccination campaign was shut down
forever when adverse events reached 94 cases of paralysis. Yet today, the vaccine campaign
continues for DoD personnel despite high adverse events and such a low threat from the COVID-19
disease. Continuing to authorize and mandate the use of COVID-19 vaccines with such high
adverse events that cause suffering and death, is evil. As a Christian, I have been commanded by
God to turn away from the path of evildoers (Prov 4:14-15). By following the Lord’s command in
turning from this evil and not taking the COVID-19 vaccines, I will be protecting my physical
health and spiritual health, as God cares for both.
The governing officials who have the responsibility to protect Americans from harmful
drugs and vaccines are failing. God’s word states, “you can identify people by their actions” (Matt
7:20). As such, through the actions of these governing officials throughout the COVID-19
pandemic, I have identified them as untrustworthy. If these current governing entities cannot or will
not protect Americans in managing the safety of the COVID-19 vaccines, how can they be trusted
to govern the safety of other vaccines? The mis-management of the COVID-19 vaccine in regard to
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safety directly correlates to the continued safety management of routine and non-routine
vaccinations. In 1 Corinthians 3:16-17, God’s word declares that His Holy Spirit dwells within me
and that I am His temple. It goes on to say if anyone destroys God’s temple, He will destroy that
person. I am to care for this body as it is the dwelling place of God’s Holy Spirit, if I do not, I will
face the wrath of God. As such, I cannot in good faith allow the injection of any routine, non-
routine or COVID-19 vaccines into my healthy body knowing the great harm they may do to this
temple of God.
12. There are no effects upon command mission accomplishment for grounds to disapprove this
accommodation. Since the beginning of the COVID-19 pandemic a large number of personnel
became infected with COVID-19. Both vaccinated and un-vaccinated alike. The average recovery
time was two weeks or less before returning to work. The divisions I worked in and the command
itself still accomplished its mission in training the same amount of EOD ascension students as years
prior. Not one of our 327 command staff members have been permanently removed from
performing their duty due to getting COVID-19. As detailed prior in this RA, natural immunity has
proven to be superior to vaccine induced immunity. A large number of our command staff have
now had and recovered from COVID-19, including myself. My accommodation from being
vaccinated will have zero effect on the command meeting its mission.
Approving this accommodation, will not produce a negative effect on health or safety as
both vaccinated and un-vaccinated at the command have been infected with COVID-19.
Additionally, less restrictive means than denial of this accommodation exist. Alternate means of
mitigating the transmission of COVID-19 or any disease include: Masks, distancing, performing
activities or training outdoors, weekly COVID-19 testing and staying home when symptomatic. I
claim I have utilized a combination of these alternate means since checking into the command July
2020 to present day all while performing the responsibilities of my occupation in the same period.
No studies or proof have been provided showing these alternate means are not available or not
effective. No proof or studies have been provided showing natural immunity does not mitigate
COVID-19.
When not at my private desk, my instructor duties take place in open air outdoors.
Although billeted as an instructor, “hands-on” training does not mean hands-on the students. It
means students are getting their hands on tools and equipment while performing training. The
training objectives are met without me putting hands on the students. With me following our
proven mitigation protocols and the large majority of staff being vaccinated or naturally immune,
there will be no negative effect on health or safety in approving this accommodation.
Unit cohesion and good order will not be negatively affected by approving this
accommodation. My convictions on vaccines are mine and in Romans 14:1-6 I am instructed not to
attack others’ convictions or cause divisions. I will continue to abide by this as a believer and
Naval Officer and continue to promote good order and discipline to those I am assigned over. The
submission of this Religious Accommodation for vaccination is not counter to a display of good
order and discipline. To the contrary, it is an example of good order and discipline as I strive to
abide by the rules and regulations as provided for Religious Accommodations.
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DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000
c
1730
Ser N1/115723
23 Nov 21
From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To:
LT Daniel J. Franklin, USN
Via:
Commanding Officer, Naval School Explosive Ordnance Disposal
Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS
Ref:
(a) 42 U.S.C. §2000bb-1
(b) DoD Instruction 1300.17 of 1 September 2020
(c) SECNAVINST 1730.8B
(d) ASN (M&RA) memo of 6 Jun 13
(e) MILPERSMAN 1730-020
(f) United States Attorney General memo of 6 Oc 17
(g) Your ltr of 20 Sep 21 w/ends
(h) BUMED ltr 6320 Ser M44/21UM40931 of 19 Oct 21
1. Pursuant to references (a) through (h), your request for religious accommodation through
waiver of immunization requirements is disapproved. You must receive all required vaccines.
However, you are free to request from your healthcare provider alternative vaccines that are
available and meet the Navy’s immunization requirements, as determined by a credentialed
military healthcare provider. You are free to choose which COVID-19 vaccine to take. If you
choose a COVID-19 vaccine that requires two doses, you must receive your first dose within five
calendar (5) days upon receipt of this letter and complete the series as prescribed. If you choose
a one-dose vaccine you must receive the vaccine within five calendar (5) days upon receipt of
this letter.
2. In line with references (b) through (d), I am designated as the approval authority for requests
for religious accommodation.
3. Reference (a), the Religious Freedom Restoration Act (RFRA), states that the Government
may substantially burden an individual’s exercise of religion only if it demonstrates that
application of the burden to the person is in furtherance of a compelling governmental interest
and is the least restrictive means of furthering that interest. Reference (b) incorporates the RFRA
and notes that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order and discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,
including military readiness, unit cohesion and good order and discipline, the Navy will
accommodate individual expressions of sincerely held beliefs of Sailors. Reference (f)
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2
emphasizes that only those interests of the highest order can overbalance legitimate claims to the
free exercise of religion.
4. All requests for accommodation of religious practices are assessed on a case-by-case basis.
In line with references (b) and (c), determination of a request for religious accommodation
requires consideration of the following factors:
a.
Impact on military readiness, unit cohesion, good order and discipline, health and safety
b. Religious importance of the request
c.
Cumulative impact of repeatedly granting similar requests
d. Whether there are alternatives available to meet the requested accommodation and
e.
How other such requests have been treated
5. In making this decision, I reviewed reference (g), including the endorsements from your
chain of command, the local chaplain and the advice of Chief, Bureau of Medicine and Surgery
in reference (h).
a.
A waiver of immunizations would have a predictable and detrimental effect on your
readiness and the readiness of the Sailors who serve alongside you in both operational and non-
operational (including training) environments. Primary prevention of disease through
immunizations has been a key enabler for maintaining force health and avoiding disease-related
non-battle injury. Granting your request will have a direct and foreseeable negative impact on
the compelling Government interests of military readiness and health of the force.
b. While serving in the U.S. Navy, you will inevitably be expected to live and work in close
proximity with your shipmates. I find that disapproval of your request for a waiver of
immunization requirements is the least restrictive means available to preserve the Department of
Defense’s compelling interest in military readiness, mission accomplishment and the health and
safety of military Service Members.
6. The Navy is a specialized community governed by a discipline separate from that of the rest
of society. While every Sailor is welcome to express a religion of choice or none at all, our
greater mission sometimes requires reasonable restrictions. You have my sincere best wishes for
your continued success in your Navy career.
JOHN B. NOWELL, JR
Copy to:
OPNAV (N131, N0975)
BUMED
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EXHIBIT B
Pls.' Mot. for Classwide Prelim. Inj. App. 0146
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 149 of 160 PageID 4585
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000
1730
Ser N1/118245
24 Feb 22
From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To:
LT Daniel J. Franklin, USN
Via:
Commanding Officer, Naval School Explosive Ordnance Disposal
Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE
Ref:
(a) LT Daniel J. Franklin, USN ltr of 23 Feb 22 w/ends
(b) BUPERSINST 1730.11A
(c) DCNO/N1 RA Response ltr of 23 Nov 21
(d) CNO Appeal RA Response ltr of 15 Feb 22
1. Your request in reference (a) is denied. Contrary to your assertion, there have been no
substantive changes to the physical environment since your original request and appeal. The
compelling government interest in ensuring mission accomplishment, to include military
readiness, unit cohesion, good order and discipline, health and safety, on both individual and unit
levels remains the same.
2. As provided in reference (b), members are afforded the opportunity to renew requests when
the physical, operational, or geographical environment in which they work or operate has
changed. In your case, the environment has not materially changed. Specifically, and as already
noted in references (c) and (d), you remain an Explosive Ordnance Disposal officer and an
instructor interacting with Sailors. Further, a waiver of the COVID-19 immunization would
continue to have a predictable and detrimental effect on your readiness and the readiness of the
Sailors who serve alongside you in both operational and non-operational environments.
Granting your request would still have a direct and foreseeable negative impact on the
compelling government interests of military readiness and health of the force. Finally, while no
vaccine is completely effective, vaccines reduce disease incidence and disease severity.
JOHN B. NOWELL, JR
Copy to:
OPNAV (N131, N0975)
BUMED
NOWELL.JOHN.BL
ACKWELDER.JR.1
057611835
Digitally signed by
NOWELL.JOHN.BLACKWELDER
.JR.1057611835
Date: 2022.02.24 20:43:15 -05'00'
Pls.' Mot. for Classwide Prelim. Inj. App. 0147
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 150 of 160 PageID 4586
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 150 of 160 PageID 4586
EXHIBIT C
Pls.' Mot. for Classwide Prelim. Inj. App. 0148
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 151 of 160 PageID 4587
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 151 of 160 PageID 4587
From: Rogers, Casey L LCDR USN NAVSCOLEOD EGLIN FL (USA) <casey.l.rogers.mil@us.navy.mil>
Sent: Friday, February 25, 2022 3:41 PM
To: Franklin, Daniel J LT USN (USA) <daniel.j.franklin@navy.mil>
Cc: Beall, Steven Gene CAPT USN NAVSCOLEOD EGLIN FL (USA) <steven.g.beall.mil@us.navy.mil>
Subject: Fw: RELIGIOUS ACCOMMODATION (RA) PACKAGE WITH ENDORSEMENT ICO LT DANIEL J.
FRANKLIN
Dan,
Email from the DCNO's office as requested.
V/R,
XO
________________________________
From: Cua, Diane S CDR USN DCNO N1 (USA) <diane.s.cua.mil@us.navy.mil>
Sent: Friday, February 25, 2022 3:14 PM
To: Stewart, Charles M CIV USN NAVSCOLEOD EGLIN FL (USA) <charles.m.stewart.civ@us.navy.mil>;
Katson, Mery Angela Sanabria CAPT USN DCNO N1 (USA) <mery.a.katson.mil@us.navy.mil>
Cc: Rogers, Casey L LCDR USN NAVSCOLEOD EGLIN FL (USA) <casey.l.rogers.mil@us.navy.mil>; Beall,
Steven Gene CAPT USN NAVSCOLEOD EGLIN FL (USA) <steven.beall@navy.mil>;
'ALTN_Navy_Religious_Accommodations@navy.mil'
<ALTN Navy Religious Accommodations@navy.mil>
Subject: RE: RELIGIOUS ACCOMMODATION (RA) PACKAGE WITH ENDORSEMENT ICO LT DANIEL J.
FRANKLIN
Mr. Stewart,
Good afternoon. Please find attached DCNO N1’s response to LT Franklin’s request for waiver of policy
in support of religious practice. The conditions described do not constitute valid “change[s] in physical,
operational or geographical environment.” Therefore, the previously adjudicated Religious
Accommodation from CNO remains in effect. Request you (or your designee):
(1)
acknowledge receipt of DCNO N1’s letter by responding to this email (kindly reply to all above).
(2)
provide DCNO N1’s response to LT Franklin.
(3)
update the CCDA database with the appropriate entry. Specifically, change the entry from
“unvaccinated, pending religious accommodation” to (NAVADMIN 249/21):
a.
‘unvaccinated, vaccination series started but not complete’ if the service member initiated the two
series vaccination (Pfizer or Moderna), OR
b.
‘vaccination series complete, previously reported as unvaccinated’ if the service member received
Pls.' Mot. for Classwide Prelim. Inj. App. 0149
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 152 of 160 PageID 4588
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 152 of 160 PageID 4588
the one shot vaccination (Johnson & Johnson), OR
c.
‘unvaccinated, refuser’ if the service member decided to not comply with CNO’s direction.
Note: These updates can be made via the My Navy Portal Site: https://www.mnp.navy.mil/group/navy-
covid-19-
reporting<https://usg01.safelinks.protection.office365.us/?url=https%3A%2F%2Fwww.mnp.navy.mil%2
Fgroup%2Fnavy-covid-19-
reporting&data=04%7C01%7Cdaniel.j.franklin5.mil%40us.navy.mil%7Cffcade56e5624e6eb6a308d9f8a7
7bcf%7Ce3333e00c8774b87b6ad45e942de1750%7C0%7C0%7C637814220483271758%7CUnknown%7C
TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000
&sdata=tUhEgalhoCm5cDayMSBuAH92Su06rroXI1hPnTvPTDM%3D&reserved=0> (NAVADMIN 249/21
pertains).
V/r
Diane
CDR Diane Cua
OPNAV N131B
Deputy Branch Head, Officer Plans and Policy
diane.s.cua.mil@us.navy.mil<mailto:diane.s.cua.mil@us.navy.mil>
Office: (703) 604-5023
Pls.' Mot. for Classwide Prelim. Inj. App. 0150
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 153 of 160 PageID 4589
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 153 of 160 PageID 4589
Exhibit 5
Pls.' Mot. for Classwide Prelim. Inj. App. 0151
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 154 of 160 PageID 4590
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 154 of 160 PageID 4590
Pls.' Mot. for Classwide Prelim. Inj. App. 0152
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 155 of 160 PageID 4591
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 155 of 160 PageID 4591
Pls.' Mot. for Classwide Prelim. Inj. App. 0153
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 156 of 160 PageID 4592
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 156 of 160 PageID 4592
Pls.' Mot. for Classwide Prelim. Inj. App. 0154
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 157 of 160 PageID 4593
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 157 of 160 PageID 4593
Exhibit 6
Pls.' Mot. for Classwide Prelim. Inj. App. 0155
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 158 of 160 PageID 4594
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 158 of 160 PageID 4594
Pls.' Mot. for Classwide Prelim. Inj. App. 0156
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 159 of 160 PageID 4595
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 159 of 160 PageID 4595
Pls.' Mot. for Classwide Prelim. Inj. App. 0157
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 160 of 160 PageID 4596
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 160 of 160 PageID 4596File and source
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