Answer To The Amended Complaint
What This Document Is
This is Defendants' Answer to the Amended Complaint (Doc. 84), filed June 3, 2022 — the answer whose deadline (extended from May 20 to June 3, 2022) was the subject of defendants' nunc pro tunc extension motion (Doc. 160.0). Defendants respond paragraph-by-paragraph to plaintiffs' Amended Complaint and assert seven affirmative defenses.
Factual Summary
Party/status admissions. Defendants admit plaintiffs are members of the U.S. Navy assigned to Naval Special Warfare and Naval Special Operations units who have each submitted initial Religious Accommodation Requests related to the COVID-19 vaccination requirement, and admit plaintiffs are not fully vaccinated. Defendants state they lack knowledge or information to admit or deny the sincerity of plaintiffs' religious objections. Defendants generally decline to characterize their own policy documents (the White House's July 29, 2021 Fact Sheet, Secretary Austin's August 24, 2021 vaccination memorandum, Trident Order #12) beyond admitting each document's existence, "respectfully refer[ring] the Court to that document for a true and complete statement of its contents," and denying any characterization "inconsistent with its plain language, meaning, or context" — a recurring formula used throughout the Answer for document-based allegations.
Legal-conclusion paragraphs. Defendants decline to respond substantively to most paragraphs framed as legal conclusions (jurisdiction, class-action allegations, First Amendment and RFRA claims), treating them as requiring no response, but deny them "to the extent a response is required."
Notable factual admission (Paragraph 131). Defendants admit that "vaccinated personnel can also carry, transmit, and become sick with COVID-19," but assert it is "much more likely" for unvaccinated personnel to do so; they also admit that "layered mitigation measures will sometimes be necessary even where all personnel are vaccinated," while asserting other mitigation measures are most effective when combined with vaccination and are sometimes the only available option.
General denial. Defendants "deny all allegations in the Amended Complaint not expressly admitted or denied."
Affirmative defenses (seven, verbatim substance): (1) failure to exhaust administrative remedies bars subject-matter jurisdiction; (2) claims challenging assignment, training, or duty decisions are non-justiciable, citing Orloff v. Willoughby, 345 U.S. 83 (1953); (3) improper venue, and improper joinder as to plaintiffs beyond the first; (4) plaintiffs fail to meet the class-certification standard; (5) defendants' actions are neutral and generally applicable under the First Amendment; (6) defendants' actions further compelling governmental interests (military readiness, force health/safety, good order and discipline) by the least restrictive means; (7) reservation of the right to assert additional Rule 8(c) affirmative defenses discovered later.
Signed by Amy Elizabeth Powell and other DOJ Civil Division, Federal Programs Branch attorneys, June 3, 2022.
Key Facts
- Defendants' 21-page Answer to the Amended Complaint, filed June 3, 2022 (on the extended deadline from Doc. 160.0).
- Admits plaintiffs' Navy service, unit assignments, and that each submitted an initial Religious Accommodation Request; declines to admit/deny sincerity of their religious beliefs.
- Admits vaccinated personnel can also carry, transmit, and contract COVID-19, while maintaining unvaccinated personnel are "much more likely" to do so.
- Asserts seven affirmative defenses, including exhaustion, non-justiciability of assignment/duty decisions (citing Orloff v. Willoughby), improper venue/joinder, failure to meet class-certification standards, and RFRA/First Amendment compelling-interest/least-restrictive-means defenses.
Source Caveats
- This 21-page document contains well over 100 numbered paragraph responses; this summary characterizes the Answer's structure, notable admissions, and affirmative defenses rather than reproducing every paragraph-level admission/denial verbatim.
- Date
- 2022-06-03
Cite this document
“Answer To The Amended Complaint.”
Original at archive.org, dated 2022-06-03. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2022-06-03-p-laintiffs-v-lloyd-j-austin-iii-in-his-official/
, SHA-256 37c7caef92745ebd7afa18f609fb6d28539927b25c49d8c28b995d7605591944.Full text
Case 4:21-cv-01236-O Document 168 Filed 06/03/22 Page 1 of 21 PageID 5132
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
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 Case No. 4:21-cv-01236-O
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.
ANSWER TO THE AMENDED COMPLAINT
Pursuant to Federal Rule of Civil Procedure 12, Defendants Lloyd Austin III, United States
Department of Defense (“DoD”), and Carlos Del Toro (collectively, “Defendants”), by and
through their undersigned counsel, all in their official capacities, answer the Amended Complaint
(ECF No. 84) as follows. The unnumbered preamble to the Amended Complaint is a
characterization of this action, to which no response is required. Defendants answer the separately
numbered paragraphs and prayer for relief contained in the Amended Complaint as follows:1
1
Defendants have included Plaintiffs’ headings as a helpful reference. The headings are not factual allegations to
which a response is required.
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INTRODUCTION
1. Admit that Plaintiffs are members of the United States Navy assigned to Naval
Special Warfare and Naval Special Operations units, and that they have each submitted initial
Religious Accommodation Requests related to the COVID-19 vaccination requirement.
Defendants lack knowledge or information sufficient to form a belief as to the truth of the
allegations regarding the nature and sincerity of Plaintiffs’ objections.
2. The allegations in this paragraph constitute a characterization of this action, to
which no response is required. To the extent that a response is required, Defendants deny the
allegations, except to admit that this action purports to be brought under the First Amendment and
the Religious Freedom Restoration Act (“RFRA”).
3. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
4. The allegations in this paragraph purport to characterize this action and no response
is required. To the extent a response is deemed required, denied.
JURISDICTION AND VENUE
5. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
6. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
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7. The allegations in the first sentence of this paragraph contain the Plaintiffs’
conclusions of law, not allegations of fact, and no response is required. To the extent a response
is deemed required, denied. Defendants deny the second and third sentences.
PARTIES
8. Admitted.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted.
13. Denied.
14. Denied.
15. Denied.
16. Admitted.
17. Admitted.
18. Admitted.
19. Admitted.
20. Admitted.
21. Denied.
22. Denied.
23. Denied.
24. Defendants admit the allegations and the first and second sentence. The third
sentence mischaracterizes the August 24, 2021 memorandum from Secretary of Defense Lloyd
Austin. Defendants admit the existence of the August 24, 2021 memorandum and otherwise
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respectfully refer the Court to that document for a true and complete statement of its contents, and
deny any allegation inconsistent with its plain language, meaning, or context.
25. Defendants admit that DoD is an executive branch department. The remainder of
the allegations in this paragraph purport to summarize imprecisely the functions of DOD, which
are prescribed by statute, regulation, and lawful orders. Defendants respectfully refer the Court to
Title 10 of the U.S Code for an accurate statement of the functions of DoD.
26. Defendants admit the first sentence and that the Secretary of the Navy oversees and
leads the Department of the Navy. With respect to the second sentence, Defendants deny that the
Department of the Navy is composed solely of the Navy and the Marine Corps. With respect to
the third sentence, Defendants admit that Secretary Del Toro issued a memorandum on August 30,
2021, implementing the August 24, 2021 memorandum from the Secretary of Defense.
Defendants admit the existence of the August 30, 2021 memorandum and otherwise respectfully
refer the Court to that document for a true and complete statement of its contents, and deny any
allegation inconsistent with its plain language, meaning, or context. The last sentence purports to
characterize this action and is not a factual allegation to which a response is required.
FACTUAL BACKGROUND
27. Admit that Plaintiffs are members of the United States Navy assigned to Naval
Special Warfare and Naval Special Operations units, and that they have each submitted initial
Religious Accommodation Requests related to the COVID-19 vaccination requirement.
Defendants lack knowledge or information sufficient to form a belief as to the truth of the
allegations regarding the nature and sincerity of Plaintiffs’ objections.
28. Admitted, but Defendants also aver that they summarize the mission of Naval
Special Warfare and its components using somewhat different language.
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29. Admit that Plaintiffs are not fully vaccinated at this time, and that some of them are
active duty Navy service members. Otherwise, the allegations in the first sentence are denied.
Defendants lack knowledge or information sufficient to form a belief as to the truth of the
allegations in the second sentence.
30. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph.
31. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in the first two sentences in this paragraph. Deny the third sentence and aver
that one or more of the Plaintiffs has objected to other safety measures. Admit the last sentence.
32. This paragraph characterizes a statement in a Fact Sheet released by the White
House on July 29, 2021. Defendants admit the existence of the Fact Sheet and otherwise
respectfully refer the Court to that document for a true and complete statement of its contents, and
deny any allegation inconsistent with its plain language, meaning, or context.
33. Admitted.
34. This paragraph mischaracterizes the August 24, 2021 memorandum from Secretary
of Defense Lloyd Austin. Defendants admit the existence of the August 24, 2021 memorandum
and otherwise respectfully refer the Court to that document for a true and complete statement of
its contents, and deny any allegation inconsistent with its plain language, meaning, or context.
35. This paragraph purports to characterize the August 24, 2021 memorandum from
Secretary of Defense Lloyd Austin. Defendants admit the existence of the August 24, 2021
memorandum and otherwise respectfully refer the Court to that document for a true and complete
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statement of its contents, and deny any allegation inconsistent with its plain language, meaning, or
context.
36. Deny that Plaintiffs are necessarily or immediately subject to all of the listed
actions, and deny that the allegations in this paragraph accurately describe Navy policy regarding
unvaccinated service members. Defendants further aver that service members who have pending
religious exemption requests or appeals are not subject to discipline, and respectfully refer the
Court to public Navy policy documents regarding vaccination and discipline, and deny any
allegation inconsistent with its plain language, meaning, or context.
37. The allegations in this paragraph purport to characterize and selectively quote All
Navy (ALNAV) Message 062/21, which speaks for itself. Defendants admit the existence of that
document and otherwise respectfully refer the Court to that document for a true and complete
statement of its contents, and deny any allegation inconsistent with its plain language, meaning, or
context.
38. The allegations in this paragraph purport to characterize and selectively quote All
Navy (ALNAV) Message 062/21, which speaks for itself. Defendants admit the existence of that
document and otherwise respectfully refer the Court to that document for a true and complete
statement of its contents, and deny any allegation inconsistent with its plain language, meaning, or
context.
39. Deny that Defendants communicated that Plaintiffs are immediately or necessarily
subject to all of the listed actions, and deny that the allegations in this paragraph accurately
describe Navy policy regarding unvaccinated service members. Defendants further aver that
service members who have pending religious exemption requests or appeals are not subject to
discipline. To the extent the allegations in this paragraph are intended to summarize the cited
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documents, Defendants respectfully refer the Court to those public documents for a full and
accurate statement of their contents, and deny any allegation inconsistent with its plain language,
meaning, or context.
40. The allegations in this paragraph purport to characterize and selectively quote DoD
Instruction 1300.17, SECNAVINST 1730.8B, NAVADMIN 190/21, BUPERSINST 1730.11A,
and MILPERSMAN 1730-020, which speak for themselves. Defendants admit the existence of
these documents and otherwise respectfully refer the Court to the documents for true and complete
statements of their contents, and deny any allegation inconsistent with their plain language,
meaning, or context.
41. The allegations in the first sentence of this paragraph purport to characterize and
selectively quote a Breitbart News article, which speaks for itself. Defendants admit the existence
of the article and otherwise respectfully refer the Court to that document for a true and complete
statement of its contents, and deny any allegation inconsistent with its plain language, meaning, or
context. The allegations in the second sentence of the paragraph are denied. Defendants further
aver that Religious Accommodation Requests (“RARs”) related to the COVID-19 vaccine
mandate have been approved.
42. Defendant admits the allegations in the first sentence and avers that presently, more
than eight permanent medical exemptions have been granted. Defendants admit the existence of
the cited documents, and otherwise respectfully refer the Court to the documents for true and
complete statements of their contents, and deny any allegation inconsistent with their plain
language, meaning, or context.
43. Denied.
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44. The allegations in this paragraph purport to characterize and selectively quote DoD
Instruction 1300.17, which speaks for itself. Defendants admit the existence of that document and
otherwise respectfully refer the Court to that document for a true and complete statement of its
contents, and deny any allegation inconsistent with its plain language, meaning, or context.
45. The allegations in this paragraph purport to characterize and selectively quote
Secretary of the Navy Instruction 1730.8B, which speaks for itself. Defendants admit the existence
of that document and otherwise respectfully refer the Court to that document for a true and
complete statement of its contents, and deny any allegation inconsistent with its plain language,
meaning, or context.
46. The allegations in this paragraph purport to characterize and selectively quote Navy
Bureau of Medicine Instruction (BUMEDINST) 6230.15B, which speaks for itself. Defendants
admit the existence of that document and otherwise respectfully refer the Court to that document
for a true and complete statement of its contents, and deny any allegation inconsistent with its plain
language, meaning, or context.
47. The allegations in this paragraph purport to characterize and selectively quote Navy
Bureau of Personnel Instruction (BUPERSINST) 1730.11A, which speaks for itself. Defendants
admit the existence of that document and otherwise respectfully refer the Court to that document
for a true and complete statement of its contents, and deny any allegation inconsistent with its plain
language, meaning, or context.
48. The allegations in this paragraph purport to characterize Navy Military Personnel
Manual (MILPERSMAN) 1730-020, which speaks for itself. Defendants admit the existence of
that document and otherwise respectfully refer the Court to that document for a true and complete
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statement of its contents, and deny any allegation inconsistent with its plain language, meaning, or
context.
49. Admit that Plaintiffs submitted religious accommodation requests, and admit that
none of the Plaintiffs has yet had an RAR approved. Defendants lack knowledge or information
sufficient to form a belief as to the truth of the allegations regarding the nature and sincerity of
Plaintiffs’ objections. Defendants deny the remainder of the paragraph and avers that of the named
plaintiffs, as of May 2, 2022, ten plaintiffs failed to appeal, two had their appeals denied and 23
have pending appeals.
50. Denied.
51. Admitted.
52. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations regarding what individuals plaintiffs were told regarding deployability and
vaccination or their pins. Defendants aver that the Navy’s Manual of the Medical Department
(“MANMED”), Chapter 15, Physical Examinations and Standards for Enlistment, Commission
and Special Duty generally governs deployability requirements and waiver processes. Defendants
respectfully refer the Court to that document for a full and accurate statement of its contents, and
deny any allegation inconsistent with its plain language, meaning, or context.
53. Denied, except to admit that some medical exemptions have been granted
CLASS ACTION ALLEGATIONS
54. The allegations in this paragraph constitute a characterization of this action and the
class and sub-class, to which no response is required. To the extent that a response is required,
Defendants deny the allegations, and deny that class certification is appropriate.
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55. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
56. Admit the first sentence. The allegations in the second sentence of this paragraph
contain the Plaintiffs’ conclusions of law, not allegations of fact, and no response is required. To
the extent a response is required, denied.
57. Denied.
58. The statements in this paragraph purport to contain common questions of fact and
are not allegations of fact to which a response is required. To the extent a response is required,
Defendants deny that these are common questions of fact, deny the characterizations of Navy
policy, and deny that resolution of these questions is central to these individuals’ claims.
59. The statements in this paragraph purport to contain common questions of law and
are not allegations of fact to which a response is required. To the extent a response is required,
Defendants deny that these are common questions of law, deny the characterizations of Navy
policy, and deny that resolution of these questions is central to these individuals’ claims.
60. Denied.
61. Defendants deny the first sentence. Defendants lack knowledge or information
sufficient to form a belief as to the truth of the allegations in the second sentence.
62. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph.
63. Defendants deny the first sentence. Defendants lack knowledge or information
sufficient to form a belief as to the truth of the allegations in the second sentence.
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FIRST CAUSE OF ACTION.
64. Defendants repeat and incorporate each of the responses contained in the foregoing
paragraphs of this Answer.
65. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
66. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
67. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
68. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
69. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
70. The allegations in this paragraph purport to characterize DODI 1300.17 and
SECNAVINST 1730.8B, each of which speaks for itself. Defendants admit the existence of those
documents and otherwise respectfully refer the Court to those documents for a true and complete
statement of their contents, and deny any allegation inconsistent with their language, meaning, or
context.
71. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
72. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph.
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73. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph regarding the nature and sincerity of Plaintiffs’ beliefs;
otherwise, denied.
74. Deny that Plaintiffs are necessarily or immediately subject to all of the listed
actions, and deny that the allegations in this paragraph accurately describe Navy policy regarding
unvaccinated service members. Defendants further aver that service members who have pending
religious exemption requests or appeals are not subject to discipline, and respectfully refer the
Court to public Navy policy documents regarding vaccination and discipline, and deny any
allegation inconsistent with its plain language, meaning, or context.
75. Admitted.
76. Denied.
77. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
78. Denied.
79. Denied.
80. Denied.
81. Defendants admit that vaccinated personnel can also carry, transmit, and become
sick with COVID-19, but aver that it is much more likely for unvaccinated personnel to do so.
Defendants further admit that layered mitigation measures will sometimes be necessary even
where all personnel are vaccinated, but further aver that other mitigation measures are most
effective when layered with vaccination, and that there are many situations where other mitigation
measures are unavailable or ineffective.
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82. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
83. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
84. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
SECOND CAUSE OF ACTION.
85. Defendants repeat and incorporate each of the responses contained in the foregoing
paragraphs of this Answer.
86. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
87. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
88. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
89. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
90. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
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91. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
92. The allegations in this paragraph purport to characterize DODI 1300.17 and
SECNAVINST 1730.8B, each of which speaks for itself. Defendants admit the existence of those
documents and otherwise respectfully refer the Court to those documents for a true and complete
statement of their contents, and deny any allegation inconsistent with their language, meaning, or
context.
93. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
94. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph.
95. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph regarding the nature and sincerity of Plaintiffs’ beliefs;
otherwise, denied.
96. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
97. Denied.
98. Denied.
99. Denied.
100. Denied.
101. Defendants admit that vaccinated personnel can also carry, transmit, and become
sick with COVID-19, but aver that it is much more likely for unvaccinated personnel to do so.
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Defendants further admit that layered mitigation measures will sometimes be necessary even
where all personnel are vaccinated, but further aver that other mitigation measures are most
effective when layered with vaccination, and that there are many situations where other mitigation
measures are unavailable or ineffective.
102. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
103. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
104. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
THIRD CAUSE OF ACTION
105. Defendants repeat and incorporate each of the responses contained in the foregoing
paragraphs of this Answer.
106. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
107. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
108. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph.
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109. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph regarding the nature and sincerity of Plaintiffs’ beliefs;
otherwise, denied.
110. Deny that Plaintiffs are necessarily or immediately subject to all of the listed
actions, and deny that the allegations in this paragraph accurately describe Navy policy regarding
unvaccinated service members. Defendants further aver that service members who have pending
religious exemption requests or appeals are not subject to discipline, and respectfully refer the
Court to public Navy policy documents regarding vaccination and discipline, and deny any
allegation inconsistent with its plain language, meaning, or context. .
111. Admitted.
112. Denied.
113. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
114. Denied.
115. Denied.
116. Denied.
117. Defendants admit that vaccinated personnel can also carry, transmit, and become
sick with COVID-19, but aver that it is much more likely for unvaccinated personnel to do so.
Defendants further admit that layered mitigation measures will sometimes be necessary even
where all personnel are vaccinated, but further aver that other mitigation measures are most
effective when layered with vaccination, and that there are many situations where other mitigation
measures are unavailable or ineffective.
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118. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
119. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
120. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
FOURTH CAUSE OF ACTION
121. Defendants repeat and incorporate each of the responses contained in the foregoing
paragraphs of this Answer.
122. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
123. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required.
124. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph.
125. Defendants lack knowledge or information sufficient to form a belief as to the truth
of the allegations in this paragraph regarding the nature and sincerity of Plaintiffs’ beliefs;
otherwise, denied.
126. Defendants deny the first sentence. The remainder of the allegations in this
paragraph purport to characterize Trident Order #12, which speaks for itself. Defendants admit
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the existence of that document and otherwise respectfully refer the Court to that document for a
true and complete statement of its contents, and deny any allegation inconsistent with its plain
language, meaning, or context.
127. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
128. Denied.
129. Denied.
130. Denied.
131. Defendants admit that vaccinated personnel can also carry, transmit, and become
sick with COVID-19, but aver that it is much more likely for unvaccinated personnel to do so.
Defendants further admit that layered mitigation measures will sometimes be necessary even
where all personnel are vaccinated, but further aver that other mitigation measures are most
effective when layered with vaccination, and that there are many situations where other mitigation
measures are unavailable or ineffective.
132. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
133. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
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134. The allegations in this paragraph contain the Plaintiffs’ conclusions of law, not
allegations of fact, and no response is required. To the extent a response is deemed required,
denied.
The remaining paragraphs of the Amended Complaint contain Plaintiffs’ requested relief,
to which no response is required. To the extent a response is required, Defendants deny the
allegations contained in the remaining paragraphs of the Amended Complaint and further aver that
Plaintiffs are not entitled to any relief.
Defendants hereby deny all allegations in the Amended Complaint not expressly admitted
or denied.
DEFENSES
1. Plaintiffs failed to exhaust administrative remedies before bringing this action; that
failure is a bar to subject matter jurisdiction and to a cause of action
2. Any claim depending in part or in whole on a challenge to any assignment, training,
or duty decision(s) by Defendants is not justiciable, and corresponding relief is not available. See,
e.g., Orloff v. Willoughby, 345 U.S. 83 (1953).
3. Venue is improper, and even if it were proper as to one plaintiff, other plaintiffs are
improperly joined and should be severed.
4. Plaintiffs fail to meet the standard for class certification.
5. Defendants’ actions are neutral and of general application under the First
Amendment.
6. Defendants’ actions are in furtherance of compelling governmental interests,
including interests in military readiness, health and safety of the force, and good order and
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discipline; and are the least restrictive means of furthering those compelling governmental
interests, including because other alternatives are not as effective.
7. Defendants reserve the right to assert any affirmative defense, including those in
Federal Rule of Civil Procedure 8(c), not currently known, which it may have or through discovery
learn may be applicable.
Dated: June 3, 2022 Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director
/s/Amy E. Powell
ANDREW E. CARMICHAEL
AMY E. POWELL
Senior Trial Counsel
ZACHARY A. AVALLONE
CATHERINE M. YANG
Trial Attorneys
United States Department of Justice
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
20
Case 4:21-cv-01236-O Document 168 Filed 06/03/22 Page 21 of 21 PageID 5152
CERTIFICATE OF SERVICE
I hereby certify that on June 3, 2022, I electronically filed the foregoing document
through the Court’s ECF system, which automatically notifies counsel of record for each party.
/s/Amy E. Powell
AMY E. POWELL
21
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