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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
EMERGENCY MOTION FOR ORDER REQUIRING COMPLIANCE WITH
PRELIMINARY INJUNCTION
Plaintiffs SEAL 1 and SEAL 10 respectfully request emergency relief by midnight
tonight, June 3, 2022.
SEAL 1 and SEAL 10 have orders to travel this weekend to Alaska for planned Annual
Training at Naval Special Warfare Cold Weather Detachment Kodiak. SEAL 1 is scheduled to
depart tomorrow morning, June 4, 2022 at 0855 CST and SEAL 10 is scheduled to depart Sunday
morning, June 5, 2022. Both just learned this evening from their command that the Navy
cancelled their travel authorization because of the Navy’s travel restriction for unvaccinated
servicemembers. SEAL 1 and SEAL 10 are both attached to SEAL Team 17, a Reserve team.
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Attendees at the Annual Training are slated to fly on commercial airlines to Alaska along with
members of the general public. The planned exercises entail cold weather and outdoor survival
training.
Navy Reservists must complete Annual Training 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 for that
reason alone, providing an alternative means of separating a member who is otherwise protected
by this Court’s injunction. And failure to complete Annual Training results in a “bad” or
“unsatisfactory” year, or a year in which the Reservist is not in good standing, which means the
entire year will not count towards retirement or for other purposes. SEAL 1 is unaware of any
further opportunities for him to timely attend Annual Training. SEAL Team 17 leadership has
stated that they wanted all members to attend this Annual Training and they will not approve
waivers, which is the only way failure to attend Annual Training will not count against the
Reservist. SEAL 10 was told there might be a possibility of a local Annual Training he could
attend due to his location in the San Diego area but does not have any details, and he is in the
process of moving to Tennessee.
Despite having orders to attend this required Annual Training, SEAL 1 and SEAL 10 are
now being prohibited from attending and will likely be penalized when they do not, even though
the Navy’s own nonsensical travel policy is the source of this problem. The Navy has restricted
unvaccinated personnel from traveling with limited exceptions, stating without explanation that
“[m]inimizing the travel of unvaccinated individuals remains paramount.” See Ex. A. 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 especially absurd in this context given that Reservists—both vaccinated and unvaccinated
alike—live in the general population alongside unvaccinated people during their daily lives.
The Supreme Court’s partial stay only 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 Court’s order, see id., but
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 ¶ 15 (emphasis added). Thus, it is prohibited by the preliminary
injunction. “[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). The Supreme Court’s order is not a blank check
for the Navy to resume its retaliation against class members.
CONCLUSION
Given that this is an administrative decision according to Admiral Lescher, that it is not
based on any possible rational justification, and that denying this Annual Training to SEAL 1 and
SEAL 10 at the last possible minute is clearly punitive and will jeopardize their good standing as
Reservists, Plaintiffs respectfully request that the Court order Defendants to honor SEAL 1 and
SEAL 10’s orders to attend Annual Training as planned tomorrow morning.
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.
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Respectfully submitted.
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 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
/s/ Andrew B. Stephens
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
andrew@hackerstephens.com
heather@hackerstephens.com
Attorneys for Plaintiffs
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.
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CERTIFICATE OF CONFERENCE
Before filing this motion, I conferred with Defendants’ counsel Amy Powell to try to
resolve the matter without the Court’s intervention. The Navy’s position is that it is permitted to
deny travel to class members consistent with the injunction and partial stay. Ms. Powell stated that
she was unable to get any information about this situation tonight and that “[t]his also does not
seem like an emergency that could not wait on a proper effort to meet and confer and a reasonable
briefing schedule.”
/s/Andrew B. Stephens
ANDREW B. STEPHENS
CERTIFICATE OF SERVICE
I hereby certify that on June 3, 2022, I served the foregoing document on counsel of record
for each party.
/s/Andrew B. Stephens
ANDREW B. STEPHENS
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EXHIBIT A
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THE SECRETARY OF THE NAVY
WASHINGTON, O.C. 20350-1000
MEMORANDUM FOR COMMANDANT OF THE MARINE CORPS
CHIEF OF NAVAL OPERATIONS
ASSIST ANT SECRETARIES OF THE NA VY
GENERAL COUNSEL OF THE NA VY
APR 2 9 2022
SUBJECT: Implementation of Consolidated Department of Defense Corona virus Disease 2019
Force Health Protection Guidance
References: (a) Under Secretary of Defense for Personnel and Readiness Memorandum
"Consolidated Department of Defense Coronavirus Disease 2019 Force Health
Protection Guidance," April 4, 2022
(b) Secretary of the Navy Memorandum, "Updated Coronavirus Disease 2019
Guidance Related to Meetings," October 28, 2021
(c) Assistant Secretary of the Navy (Manpower and Reserve Affairs) Memorandum,
"Department of the Navy Exemption of Authorized Leave for Service Members
from Coronavirus Disease 2019 Personnel Movement and Travel_Restrictions,"
June 30, 2020
(d) Secretary of the Navy Memorandum, "Delegation of Waiver Authority of the
Reissuance of Department of the Navy Travel Restrictions in Response to
Coronavirus Disease 2019 ALNAV 044/20," April 21, 2020
(e) Secretary of the Navy Memorandum, "Department of the Navy Implementation
of Transition to Conditions-based Approach to Coronavirus Disease 2019
Personnel Movement and Travel Restrictions," June 12, 2020
(t) Secretary of the Navy Memorandum, "Delegation of Waiver Authority for the
Department of the Navy Travel Restrictions in Response to the Coronavirus
Disease 2019," October 21, 2020
(g) Secretary of the Navy Memorandum, "Delegation of Travel Restrictions Waiver
Authority for the Department of the Navy Secretariat in Response to the
Coronavirus Disease 2019," October 21, 2020
(h) Assistant Secretary of the Navy (Manpower and Reserve Affairs) Memorandum,
"Department of the Navy Guidance on COVID-19 Community Levels and
Workplace Safety Protocols," March 3, 2022
Reference (a) provides consolidated Department of Defense Force Health Protection
(FHP) guidance. This memorandum provides updated FHP implementation guidance, and
rescinds and replaces references (b) through (g). Procedures for unofficial travel will be in
accordance with reference (a). All relevant authorities and delegations previously granted
remain in effect.
Designation of Mission Critical Travel for Unvaccinated Individuals
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