Plaintiffs' Response re: Defendants' Compliance with Preliminary Injunction — U.S. Navy SEALs v. Austin

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Plaintiffs' response regarding Defendants' compliance with the preliminary injunction in U.S. Navy SEALs 1-3, et al., v. Lloyd J. Austin, III, et al., Case No. 4:21-cv-01236-O, in the United States District Court, Northern District of Texas, Fort Worth Division, filed June 8, 2022 as Document 177. Plaintiffs state that the injunction order expressly permits servicemembers to voluntarily choose to separate from the Navy, and they request a hearing on Defendants' compliance with the classwide preliminary injunction entered on March 28, 2022. It is organized under the headings Voluntary separation, Prohibition on Travel, and Prevention of Navy Reserve Drill/Training. Plaintiffs say the Navy has told servicemembers the injunction prevents their separation and has restricted unvaccinated personnel from traveling.

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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

PLAINTIFFS’ RESPONSE RE: DEFENDANTS’ COMPLIANCE
WITH PRELIMINARY INJUNCTION

Plaintiffs’ counsel is aware of the issues raised by the letters the Court received and were
in the process of preparing the below motion and attached evidence to address those issues and
others when the letters were docketed. As explained below, and as the Court pointed out in its
order on May 31, 2022, Plaintiffs’ position is that the injunction order is clear in that it expressly
permits servicemembers to voluntarily choose to separate from the Navy. Dkt. 164. The Navy’s
choice to interpret the Court’s order in a hypertechnical fashion despite the effects it would have
on servicemembers and their families is just another example of the Navy’s continuing vindictive
and punitive actions against servicemembers who requested accommodation of their sincerely held
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religious beliefs. Rather than approach Plaintiffs’ counsel or the Court for clarification if it felt
there was a genuine issue, the Navy decided to further retaliate against servicemembers the Navy
drove out with its sham accommodation process and is trying to blame the injunction for their
misdeeds in the process.
Plaintiffs respectfully request a hearing to discuss the Defendants’ compliance with the
classwide preliminary injunction entered on March 28, 2022. Dkt. 140. That order is stayed
“insofar as it precludes the Navy from considering [the Plaintiffs’] vaccination status in making
deployment, assignment, and other operational decisions.” Dkt. 140 at 27. Since entry of that order,
Plaintiffs’ counsel is aware of the following instances that violate the preliminary injunction order,
including the issues with separation, and which are not “deployment, assignment, or operational
decisions”:
1. Voluntary separation
In the Order Granting Class Certification, the Court specifically addresses servicemembers that
do not wish to be part of the class and “may prefer to litigate independently or avoid legal action
altogether” by stating that “if . . . such servicemembers exist, they may choose to get vaccinated,
withdraw their religious accommodation requests, voluntarily separate, or proceed with retirement
plans.” Dkt. 140 at 15; see also Dkt. 164. Many sailors had begun the separation process, some
even voluntarily acquiescing in what the Navy terms “involuntary separation,” in the interest of
getting on with their lives. See, e.g., App.0010-0056. Despite the Court’s clear admonition, the
Navy has been telling servicemembers wishing to separate that this Court’s injunction prevents
them from doing so because they are part of the class. App.0008. The Navy is falsely telling sailors
that “Service Members within the class definition are stuck there” and that the only way they will
be able to continue with the separation process already started is if this Court modifies its
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injunction. Id. The Navy told servicemembers that they could not withdraw their religious
accommodation requests to get out of the class. App.0008, 0013, 0026, 0036. Thus, even members
who have attempted to withdraw their religious accommodation requests—and thus should
unquestionably no longer be part of the class—and submitted separation paperwork are now facing
indefinite delay or inability to separate, in violation of this Court’s order. App.0008, 0013, 0026,
0036. Regardless, the Navy is blaming the Court’s order and sending servicemembers with this
issue to Plaintiffs’ counsel for the apparent purpose of building some type of record to support
modification of the injunction. App.0008. The Navy also states that DOJ may jointly petition the
Court with Plaintiffs’ counsel to modify the Court’s order, despite never having discussed this
issue with Plaintiffs’ counsel. App.0008.
After receiving several contacts out of the blue from frustrated service members, some of
whom had already sold their homes and relocated their families in anticipation of impending
separation, Plaintiffs’ counsel received a copy of the SJA Newsletter. App.0007-0009. Plaintiffs’
counsel confronted DOJ on the telephone on May 2, 2022, and DOJ claimed they had not seen the
SJA Newsletter. Regardless, this conversation made clear that the parties had different
understandings of what constitutes “voluntary” separation, with the Navy insistent on applying its
own definition rather than the plain language of the Court’s order, to the detriment of the
servicemembers involved.
During subsequent conversations with Defendants’ counsel to try to resolve the issue, DOJ
indicated that, contrary to the SJA Newsletter, the Navy would now agree to allow servicemembers
to withdraw their religious accommodation requests and choose to involuntarily separate. Defs.
App.0019. But DOJ would not confirm that this change in policy would be announced, nor would
Defendants agree to allow servicemembers to choose separation unless they also withdrew their
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religious accommodation requests. Defs. App.0017-0019. On May 27, Plaintiffs’ counsel directly
brought to DOJ’s attention the names of some class members suffering particularly imminent
harm, including two of the servicemembers who sent letters directly to the Court, and on May 31,
DOJ stated they would “check on” these situations, but to date, Plaintiffs’ counsel have received
no further response as to what is being done to rectify those situations. Defs. App.0015-0018.
Meanwhile, servicemembers are suffering—separated from their families, losing civilian jobs, and
stuck living in squalor in Navy facilities. App.0010-0056.
2. Prohibition on Travel
Meanwhile, in contrast to the Navy’s overly strict (and unjustified) adherence to what it claims
are the terms of the Court’s order, the Navy continues to flout the Court’s order by nonsensically
refusing to allow unvaccinated class members to travel to conduct training exercises and train
others, even when their expertise is needed and the servicemembers involved will be exposed to
numerous other unvaccinated individuals. Navy Servicemembers and Reservists with pending
religious accommodations are prohibited from domestic and international travel for official
business unless it is deemed mission critical by the Secretary of the Navy, even when they are
flying on a commercial airline and staying in civilian hotels with numerous unvaccinated
individuals, and even if they are only traveling by car one hour away. The Navy has restricted
unvaccinated personnel from traveling with limited exceptions, stating without explanation that
“[m]inimizing the travel of unvaccinated individuals remains paramount.” App.0004. This makes
no sense given that all travel restrictions in the United States have been lifted, passengers are not
required to mask on airplanes anymore, and airlines themselves have lifted any vaccination
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mandates and restored unvaccinated employees to the workforce because of a lack of justification.1
And it is clearly not the training itself that the Navy does not unvaccinated servicemembers to take
part in, as the evidence shows that class members are engaging in the same or similar activities
already. See App.0058-0077. It is just the travel that seems to be the issue, which defies reason.
The Supreme Court’s partial stay allows the Navy to “consider[] vaccination status in
making deployment, assignment, and other operational decisions.” Austin v. U.S. Navy SEALs 1-
26, 142 S. Ct. 1301 (2022). Those terms were left undefined by the Supreme Court. See id. Admiral
Lescher, whose declaration featured prominently in the Solicitor General’s stay briefing, states
that “cancellation of government travel for training or other official purposes” is an “administrative
action.” Dkt. 87 at 12 (emphasis added). Thus, it is prohibited by the preliminary injunction.
Elsewhere, the Department of Defense calls training part of the Navy’s “administrative”
command.2 Nevertheless, the Navy continues to insist that it may irrationally bar all travel for class
members under the injunction. But the Supreme Court’s order is not a blank check for the Navy to
resume its retaliation against class members except for kicking them out or court-martialing them.
“[C]onsidering vaccination status” in making certain decisions does not mean using vaccination
status as a blanket justification with no connection to any rational need as a proxy for retaliation.
142 S. Ct. at 1301 (emphasis added). Nor can the Navy now shoehorn decisions into the vague
language it suggested to the Supreme Court when it previously defined those decisions as

1 “Due to substantial changes in the scope and severity of the pandemic as well as the guidance of
public-health authorities, United has announced that all employees who were placed on temporary
unpaid leave as an accommodation will be returned to their previous jobs.” Motion to Vacate Panel
Opinion and Dismiss Appeal as Moot 1, Sambrano v. United Airlines, No. 21-11159 (5th Cir. Mar.
10, 2022). “This change in policy is the result of materially reduced rates of COVID-19 incidence,
high levels of vaccination, and the reduced severity of the Omicron variant (which is much less
likely to result in hospitalization or death than earlier variants).” Id. at 3.
2 See U.S. Dep’t of Defense, “Military Units: Navy,” https://www.defense.gov/Multimedia
/Experience/Military-Units/Navy/.
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something entirely different. Moreover, as the evidence shows, even high-ranking officers in Navy
commands do not know what is meant by “operational,” and no one higher up the chain of
command has provided any definition. App.0071. But if a definition is needed, this Court has
jurisdiction over the injunction and the authority to provide it. See Fed. R. Civ. P. 62(d). The
Supreme Court’s order did not constrain the Court’s authority in this respect.
Again, the safety of the training itself is obviously not a concern because these class
members are still training people at their home commands. See App.0058-0077. And preventing
trained, experienced instructors from participating has demonstrably undermined safety. In one
case, the Navy denied permission for an experienced instructor to travel despite his unit’s desire
for him to attend. App.0060-0062. The Navy, however, allowed an unvaccinated, unqualified
contractor to participate in training in his place. App.0061. That instructor was injured as a result.
App.0062. Another SEAL, a trained medic and paramedic, was denied permission to travel one
hour away by car to instruct at a training involving live fire, despite there being a civilian contractor
at the facility who is unvaccinated. App.0069-0070. Another SEAL acted as lead instructor for a
training block for an entire week yet was denied permission to travel at the last minute to lead
training in another location for the same people. App.0073-0074. SEAL and SWCC units have lost
several valuable instructors needed for dangerous training exercises because those instructors are
unvaccinated and are now scrambling to try to find qualified instructors to fill in the gaps.
App.0059, 0070, 0074.
3. Prevention of Navy Reserve Drill/Training
The anti-travel decree and the Navy’s baseless discrimination based on vaccination status
have also had adverse impacts on unvaccinated members of the Navy Reserve with pending
religious accommodations. This is especially absurd in this context given that Reservists—both
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vaccinated and unvaccinated alike—live in the general population alongside unvaccinated people
during their daily lives. Reserve class members are still expected to continue to report to regular
Inactive Duty Training or “drill,” yet are being prohibited from doing so. Navy Reservists must
also complete Annual Training—their two weeks of active duty per year—to receive evaluations
needed for promotion, complete requirements for retirement, and earn a majority of their service
paycheck. Failure to satisfactorily complete Annual Training can result in involuntary separation,
providing an alternative means of separating a member who is otherwise protected by this Court’s
injunction. Even Reserve members with local opportunities to drill or attend Annual Training have
been denied. App.0078-0117. The Navy will not permit reschedules or authorized absences from
drill. And while some credit for drill may be earned by correspondence, even that has been denied
to some servicemembers. Reply ISO Emergency Mot. App.002. In other words, class members are
required to drill and attend Annual Training, yet are not permitted to, then are penalized when they
do not, even though the Navy’s own nonsensical policies are the cause of the problem.
Because these policies are not tied to any conceivable health-related purpose, they have
unsurprisingly led to absurd results. And the Navy is even denying permission for Reservists to
engage in required drill and training that requires no travel. Lieutenant Commander Pat Wier, a
graduate of the United States Naval Academy with 12 years of commissioned service as a surface
warfare officer and a member of the Judge Advocate General Corps, has been denied permission
to drill near his home city because he is unvaccinated due to his religious beliefs. App.0083. He is
instead being forced to travel to Orlando, which is several hours away, for drill, which requires
that he be housed with another individual. App.0083. This is despite the fact that he was also
denied permission to travel to attend his mandatory unit drill weekend in Jacksonville because of
his vaccination status. App.0080. He has tried volunteering several times for opportunities to serve
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but has been rejected because of his vaccination status. App.0080-0083. He was not even allowed
to attend the JAG Corps’ annual Military Law Training Symposium remotely. App.0081. But his
Commanding Officer filed a Report of Misconduct against him for not taking the vaccine, even
though his appeal of his religious accommodation request is still pending. App.0081.
Commander Jay Ofner has served in the Navy for 23 years and is currently a civilian DoD
employee on staff with the Commander of the Submarine Force of the U.S. Pacific Fleet.
App.0092, 0094. He submitted a religious accommodation request for the COVID-19 vaccine and
his appeal is still pending. App.0092-0093. His command wanted him to take on the responsibility
of Battle Watch Captain for two weeks, a position of significant authority and responsibility, which
would count as his Annual Training requirement. App.0093. Because of his vaccination status,
Commander Ofner has been denied permission to perform a job his command wanted him to
undertake, even though he works in the very same facility as a civilian, visits the same areas of the
facility in his civilian job, and meets with the Commander of the U.S. Pacific Fleet in that capacity
for meetings and briefs with no restriction. App.0093-0094.
CONCLUSION

Plaintiffs respectfully request a hearing to hear evidence on Defendants’ compliance with
the classwide preliminary injunction entered on March 28, 2022. Dkt. 140. Alternatively, Plaintiffs
request that the Court enter an order requiring Defendants’ compliance with the preliminary
injunction by (1) allowing class members to choose to separate from the Navy (whether by
“Involuntary Separation,” “Voluntary Separation,” or retirement per the Navy’s terms); (2)
permitting class members to travel in order to carry out the duties required by their command; and
(3) permitting class members to fulfill their Reserve requirements without penalty.

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Respectfully submitted this 8th day of June, 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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