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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
NAVY SEALs 1-3, et al.,
Plaintiffs,
v.
LLOYD J. AUSTIN, III in his official capacity as
United States Secretary of Defense, et al.,
Defendants.
Case No. 4:21-cv-01236-O
DEFENDANTS’ MEMORANDUM IN RESPONSE TO
MOTIONS FOR RELEASE FROM CLASS ACTION
INTRODUCTION
Pursuant to the Court’s Order dated May 31, 2022 (Dkt. 164), Defendants respond to the
Motions of Petty Officer First Class (“PO1”) Caleb Johnson and PO1 Kevin Byrne for Release from
Class Action (ECF Nos. 162, 163).
Defendants are moving forward with the administrative separations of PO1 Johnson and PO1
Byrne to address their desire to separate from the military (without waiving any objections to the
definition and certification of the class). As set forth below, the Court should find that these
individuals are no longer members of the class so that their administrative separation may proceed.
As also set forth below, after consultations with class counsel, Defendants expect to promulgate new
guidance specifically allowing for the administrative separation of individuals who wish to withdraw
their Religious Accommodation Requests (“RARs”).
By way of background, since the Court entered preliminary injunctive relief in this case, there
has been a growing number of class members who, notwithstanding the relief entered by the Court,
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wish, by some means, to be separated from the Navy. Some have asked Defendants to accept the
withdrawal of their RARs; others have just asked to continue with their separations from service.
Defendants have been and are permitting voluntary separations and retirements to move forward
where the individuals qualify to do so. Where individuals who wish to separate from the service but
do not qualify for voluntary separation or retirement (because, for example, they still have service
requirements remaining), current legal requirements do not permit them to “voluntarily” leave service;
rather, the only available option is “involuntary separation” (a type of separation that applies to
misconduct in most instances). Because an involuntary separation for misconduct (even under
Honorable conditions) may carry future adverse consequences, Defendants have been referring such
individuals to class counsel for legal advice and temporarily avoiding taking administrative action, so
the parties could attempt to reach an amicable resolution of the issue.
Counsel for the parties have been discussing this issue since early May, and based on those
discussions, it appears that the parties now agree that class members who elect to receive an
involuntary administrative separation may withdraw their RARs and move forward with those
proceedings. Accordingly, Defendants expect to promulgate new guidance specifically allowing for
the involuntary administrative separation of individuals who wish to withdraw their RARs.
Defendants expect that the new guidance will address the concerns of PO1 Johnson and PO1 Byrne
as well as any other class members who no longer wish to be considered members of the class under
the terms of the Court order.
BACKGROUND
On January 3, 2022, this Court entered a preliminary injunction enjoining Defendants “from
applying MANMED § 15-105(3)(n)(9); NAVADMIN 225/21; Trident Order #12; and NAVADMIN
256/21 to Plaintiffs” and “from taking any adverse action against Plaintiffs on the basis of Plaintiffs’
requests for religious accommodation.” Opinion, ECF No. 66, at 26 (“Op.”), U.S. Navy SEALs 1-26
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v. Biden, No. 21-cv-1236, ---F. Supp. 3d---, 2022 WL 34443, at *14 (N.D. Tex. Jan. 3, 2022). On March
25, 2022, the Supreme Court granted the Government’s application for a partial stay in this matter.
See Austin v. U.S. Navy SEALs 1-26, No. 21A477, 142 S. Ct. 1301 (Mar. 25, 2022). The Supreme Court
granted the Government’s request to stay that injunction “insofar as it precludes the Navy from
considering respondents’ vaccination status in making deployment, assignment, and other operational
decisions.” Austin v. U.S. Navy SEALs 1-26, 2022 WL 882559. The Government did not seek to stay
the portion of the injunction that protects the plaintiffs from discipline or involuntary separation for
remaining unvaccinated.1
The Court later certified a class of all Navy service members that have submitted an RAR, as
well as subclasses of service members within the Navy Special Warfare community and service
members who are Navy SEALs, and the Court issued a class-wide injunction, under which Defendants
are enjoined from applying MANMED § 15-105(3)(n)(9); NAVADMIN 225/21; Trident Order #12;
and NAVADMIN 256/21 to members of the Navy Class and Subclasses. ECF No. 140. The Court
also partially stayed that order to the same extent as the Court’s first injunction was stayed by the
Supreme Court. In addressing Defendants’ concerns that some class members may not desire the
relief sought in this lawsuit, the Court stated that: “If—and indeed, if—such servicemembers exist,
they may choose to get vaccinated, withdraw their religious accommodation requests, voluntarily
separate, or proceed with retirement plans. The potential class members, then, are those who seek to
remain in the Navy and refuse to compromise their religious beliefs (i.e., continue to forgo the
vaccine).” ECF No. 140, at 15.
1 The Navy defined “disciplinary proceedings” in its stay request as proceedings initiated pursuant to the
Uniform Code of Military Justice (UCMJ). These proceedings include courts-martial and Article 15 (non-
judicial punishment (NJP)) as implemented under Part V of the Manual for Courts-Martial. For members
refusing the COVID-19 vaccine, the Vice Chief of Naval Operations (VCNO) is the sole disposition authority
for courts-martial and NJP. ECF No. 86 at 1.
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In order to comply with the Court’s order granting class-wide injunctive relief, the Navy issued
NAVADMIN 083/22 on March 30, 2022, which suspended all adverse administrative consequences
for failure to become fully vaccinated as required. Ex. 1, Decl. of Captain Mery-Angela Sanabria
Katson (“Kaston Decl.”) ¶ 4, App004. The suspension only applied to Navy service members who
submitted requests for religious accommodation from the COVID-19 vaccine, whereas adverse
administrative consequences continued to apply to Navy service members who did not submit such
requests. Id. NAVADMIN 083/22 further stated that additional guidance concerning the
implementation of the Navy vaccine mandate would be provided at a later date. Id.
On April 22, 2022, the Navy issued NAVADMIN 102/22, which provided greater detail
concerning both voluntary and involuntary administrative separation processing for Navy service
members who had submitted RARs that were denied or disapproved on appeal. Katson Decl. ¶ 5,
App004-005. NAVADMIN 102/22 explained that the Navy would permit voluntary separations to
continue, and service members who submitted requests for religious accommodation were permitted
to cancel or amend previous voluntary retirement requests. Id. The policy suspended officer and
enlisted involuntary separation processing and prohibited the issuance of separation paperwork for
members with approved separation notices. Id. Commands were directed to inform the appropriate
personnel office in cases where service members awaiting separation still desired to separate, but the
NAVADMIN did not direct specific action at that time. Id.
The distinction between “voluntary” and “involuntary” separation is a legal difference based
on statute and regulation. Any person who joins the United States armed forces incurs a required
period of obligated service. See 10 U.S.C. §651(a). For enlisted service members, like PO1 Johnson
and PO1 Kevin Byrne, separation from the armed forces is governed by Title 10, Chapter 59 –
Separation. In accordance with 10 U.S.C. § 1169, “[n]o regular enlisted member of an armed force
may be discharged before [their] term of service expires, except – (1) as prescribed by the Secretary
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concerned; (2) by sentence of a general or special court martial; or (3) as otherwise provided by law.”
Accordingly, except in limited circumstances, there is no authorized basis for an enlisted service
member to voluntarily separate prior to completing their obligated service. A service member with a
current service obligation who declines to become fully vaccinated for COVID-19, as required by
NAVADMIN 190/21, is therefore processed for separation using involuntary separation procedures.
Kaston Decl. ¶ 13, App009.
The failure to become fully vaccinated is a violation of the Uniform Code of Military Justice
(UCMJ) Article 92, and involuntary administrative separations for service members due to vaccine
refusal are processed by reason of misconduct. Kaston Decl. ¶ 13, App009. Although the basis for
separation is by reason of misconduct, it is expected that the vast majority of Navy separations for
vaccine refusal will be with an Honorable characterization of service. Id.
NAVADMIN 083/22 and NAVADMIN 102/22 were implemented to ensure the Navy
complied with the Court’s order by not involuntarily separating members of the certified class or
subclasses. However, the Navy has been working on a formal policy regarding how service members
within the class may voluntarily “exit the class” by withdrawing their RAR. Kaston Decl. ¶ 9, App009.
As an interim measure, and because an involuntary separation for misconduct (even under Honorable
conditions) may carry future adverse consequences, the Navy referred questions from class members
who could be subject to involuntary separation regarding the withdrawal of RARs to class counsel.
Id. The Navy was later notified that class counsel had been informing service members who wished
to pursue an involuntary separation that such legal advice was not within the scope of their legal
representation. Id.
On May 27, 2022, and May 31, 2022, two putative class members petitioned the Court for
relief concerning their membership in the certified Navy Class. Specifically, PO1 Kevin Byrne
requested to be “[released] by name from the class action lawsuit,” ECF No. 162, and PO1 Class
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Caleb Johnson requested to rescind his religious accommodation request and appeal in order to “exit
the class and be separated.” ECF No. 163. On that same day, the Court ordered a response to these
service members claims regarding the Navy’s interpretation of the Court’s order certifying the class
and granting class-wide injunctive relief. ECF No. 16.
Neither PO1 Byrne nor PO1 Johnson are currently eligible for a voluntary separation. PO1
Byrne’s End of Active Obligated Service (“EAOS”) is October 6, 2023, and PO1 Johnson’s EAOS is
October 15, 2023. Katson Decl. ¶ 11 n 4, App008. Nor have either amassed the requisite years of
service to qualify for a military retirement. Id.
Government and class counsel have been conferring for the past month regarding how to
handle the circumstances of class members who wish to be separated from the Navy through
involuntary separation proceedings. See Ex.’s 2 & 3, attached hereto, Powell Email Threads of May
26, 2022—May 31, 2022 and May 10, 2022—May 11, 2022, App014-025. As of May 31, 2022, it
appears that the parties agree that the Court’s class-wide injunction order permits a class member to
withdraw their RAR and seek to be involuntarily separated from the Navy. Ex. 2 at 1-4, App015-018.
Accordingly, the Navy is preparing to issue guidance permitting service members to withdraw their
RARs in order to exit the class, based on the mutual understanding between government counsel and
class counsel concerning the language included in the Court’s order. Katson Decl. ¶ 9. Service
members who so seek to exit the class by withdrawing their RARs will again be subject to involuntary
administrative separation processing. Id. The forthcoming Navy policy will include a mandatory
acknowledgment documenting the service member’s understanding that withdrawing the RAR may
subject him or her to involuntary administrative separation as required by NAVADMINs 190/21,
225/21, and 256/21. Id. The new policy is expected to be issued soon after the Court resolves this
matter. Id. At that time, the Navy will move forward with the involuntary separations of PO1 Caleb
Johnson and PO1 Kevin Byrne, and other similarly situated service members, on the understanding
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that they are no longer members of the class, consistent with the Court’s order. Id.; see also ECF No.
140, at 15.
ARGUMENT
Federal Rule of Civil Procedure 23(b)(2) allows class treatment when “the party opposing the
class has acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a whole. See Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 360–61 (2011). “The key to the (b)(2) class is the indivisible nature
of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be
enjoined or declared unlawful only as to all of the class members or as to none of them.” Id. As the
Supreme Court explained, “Rule 23(b)(2) applies only when a single injunction or declaratory
judgment would provide relief to each member of the class” and “does not authorize class certification
when each individual class member would be entitled to a different injunction or declaratory judgment
against the defendant.” Id. In light of the indivisible nature of a (b)(2) class and injunction, the
“procedural protections attending the (b)(3) class—predominance, superiority, mandatory notice, and
the right to opt out” are deemed unnecessary in a (b)(2) class. Id. Accordingly Rule 23(b)(2) does not
afford class members an automatic right to opt out.
The Fifth Circuit has held that a “district court acting under its Rule 23(d)(2) discretionary
power, may require that an opt-out right and notice thereof be given should it believe that such a right
is desirable to protect the interests of the absent class members,” even in a (b)(2) class. Ayers v.
Thompson, 358 F.3d 356, 375 (5th Cir. 2004); see also Fed. R. Civ. P. 23(d)(2) (providing the district court
general authority to “alter[] or amend[]” orders for conducting the class action). “Typically, such cases
involve hybrid Rule 23(b)(2) class actions, in which individual monetary relief for certain class
members is sought in addition to class-wide injunctive or declaratory relief,” and in such cases “there
has been more concern with protecting the due process rights of the individual class members to
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ensure they are aware of the opportunity to receive the monetary relief to which they are entitled.” Id.
at 376; see also Penson v. Terminal Transport Co., 634 F.2d 989, 994 (5th Cir. 1981) (same); Cox v. Am. Cast
Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir. 1986) (finding opt-out at certification stage improper).
Here, the Court created a non-opt-out (b)(2) class for Navy service members who wish to be
accommodated for religious reasons with respect to the COVID-19 vaccination requirement. ECF
140, at 15. The Court also provided several methods for service members to effectively opt-out of
the class at any time. Class members can “choose to get vaccinated, withdraw their religious
accommodation requests, voluntarily separate, or proceed with retirement plans.” Id. The remaining
class members are “those who seek to remain in the Navy and refuse to compromise their religious
beliefs (i.e., continue to forgo the vaccine).” Id.2
Shortly after the Court issued the class-wide injunction, the Navy promulgated NAVADMINs
83/22 and 102/22. Katson Decl. ¶¶ 4-5, App004-005. These NAVADMINs paused involuntary
administrative separations for Navy service members who had submitted RARs but allowed for
voluntary separations and retirements for eligible service members. Id. But, as noted, a voluntary
separation is a legal term of art that is defined by statute and regulation. Id. ¶ 6, App005. Because a
person who joins the armed forces incurs a required period of obligated service, a service member
typically cannot voluntarily separate from the military without first fulfilling that term of obligated
service. Id. Accordingly, as a general matter, service members with continued obligated service who
have been separated for refusal to receive the COVID-19 vaccine have been processed for separation
2 As set forth in Defendants’ Opposition to Class Certification, Defendants continue to maintain that
the class is not properly certified. See generally ECF No. 120. The recent requests by putative class
members to opt out of the class further underscore the individualized nature of plaintiffs’ RFRA
claims and the failure of the class to satisfy Rule 23(b)(2)’s fundamental requirement “that final
injunctive relief is appropriate regarding the class as a whole.” Fed. R. Civ. P. 23(b)(2). See also Wal-
Mart, 564 U.S. at 360; M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 841 (5th Cir. 2012) (vacating class
certified under Rule 23(b)(2) where relief would “require individualized determinations”).
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using involuntary administrative separation procedures (even though they may elect to waive their
rights to administrative separation proceedings). Id.
Prior to the movants filing their letters with the Court, the Navy became aware that several
class members who are not eligible for either a voluntary separation or a voluntary retirement still
desired to be involuntary separated from the Navy pursuant to involuntary administrative separation
procedures. Id. ¶ 8, App005-006. Those service members were directed to contact class counsel for
questions concerning the Court’s order. Id. Although Defendants understood that the Court’s order
permitted a service member to withdraw their RAR, no existing policy outlined a procedure for such
a withdrawal. Id. The Navy wanted to ensure that any service member pursuing this course of action
was knowingly and voluntarily withdrawing their RAR after receiving legal advice from class counsel.
Id. This course of action was complicated, however, when it became clear that class counsel was
informing these service members that such legal advice was not within the scope of their legal
representation. Id.
In the meantime, government counsel and class counsel have had several discussions
pertaining to the language of the Court’s order regarding the withdrawal of class member RARs. See
Ex.’s 2 & 3, App014-025. Based on a mutual understanding between government counsel and class
counsel that service members may withdraw their RARs and elect to proceed with involuntary
separation proceedings, the Navy is prepared to issue guidance specifically permitting service members
to withdraw their RARs in order to exit the class and explaining that service members who seek to
exit the class by withdrawing their RARs will again be subject to involuntary administrative separation
processing. Katson Decl. ¶ 9, App006. The anticipated Navy policy would include a mandatory
acknowledgment documenting the service member’s understanding that withdrawing their RAR may
subject him or her to involuntary administrative separation as required by NAVADMINs 190/21,
225/21, 256/21, and 283/21. Id. The Navy anticipates releasing this guidance soon after the Court
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resolves this matter. Id. At that time, after their RARs have been withdrawn, the Navy will move
forward with the involuntary separations of PO1 Byrne and PO1 Johnson, and other similarly situated
service members, on the understanding that they are no longer members of the class. Id.
Accordingly, the Court should find that class members who would be subject to involuntary
separation for refusing to comply with the COVID-19 vaccination requirement but who no longer
wish to move forward with their RAR are no longer class members and do not need the Court’s
permission to opt out. The Navy plans to move forward with their separation as soon as the
paperwork is complete, and no further action by the Court is required.
CONCLUSION
For the foregoing reasons, the Court should resolve the motion of PO1 Byrne and PO1
Johnson by finding that these individuals are no longer class members under the terms of the Court’s
previous order and thus do not need to “opt-out” of the class.
Dated: June 8, 2022
Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director
/s/Andrew E. Carmichael
ANDREW E. CARMICHAEL (VA Bar. No. 76578)
AMY E. POWELL
Senior Trial Counsel
STUART J. ROBINSON
Senior Counsel
ZACHARY A. AVALLONE
LIAM C. HOLLAND
CASSANDRA M. SNYDER
CATHERINE YANG
Trial Attorney
United States Department of Justice
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Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 514-3346
Fax: (202) 616-8470
Email: Andrew.e.carmichael@usdoj.gov
Counsel for Defendants
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