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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
REPLY IN SUPPORT OF EMERGENCY MOTION FOR ORDER REQUIRING
COMPLIANCE WITH PRELIMINARY INJUNCTION
Contrary to Defendants’ assertion, rescinding SEAL 1 and SEAL 10’s orders to travel to
attend mandatory Annual Training at the eleventh hour is not an assignment or operational
decision. Admiral Lescher agrees, testifying that it is an “administrative action.” Dkt. 87 at ¶ 15.
DOJ cannot lawyer around that admission now. As explained in Plaintiffs’ Emergency Motion
raising this issue, Annual Training is mandatory for reservists to earn a “good year” and maintain
good standing within the Navy Reserve. A reservist’s failure to earn a good year can result in
adverse consequences and eventual involuntary separation from the Navy; the two actions this
Court’s injunction clearly enjoins. Moreover, preventing a reservist from participating in Annual
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Training is not an assignment or operational decision within the plain meaning of those terms.
Assignment and operational decisions are discretionary decisions. But because Annual Training
is a requirement, it is not discretionary. There is no “assignment” or “decision” made when it
comes to whether a reservist must complete Annual Training. They must. Failure to complete
Annual Training is unquestionably detrimental to a reservist’s career.
Defendants’ assertion that reservists may complete Annual Training by earning retirement
points by other means is also specious. Inactive Duty for Training drills, mobilization, schooling,
and funeral details each require orders and in many instances, travel authorization and funding.
But according to the Navy’s COVID-19 SOP #18, dated May 5, 2022, “individuals who are not
fully vaccinated . . . are limited to mission-critical official travel.” App.002. And according to
Defendants, even attending Annual Training is not mission critical. Additionally, COVID-19 SOP
#18 states “non-fully vaccinated Navy Reserve Personnel without approved COVID-19
vaccination exemptions are ineligible to telework,” and “reschedules, telework, or authorized
absences are not authorized for non-fully vaccinated Sailors” who wish to perform Inactive Duty
for Training drills. App.002. Thus, the supposed alternative means of earning enough points to
obtain a good year are unavailable to SEAL 1 and SEAL 10. That leaves correspondence courses
as the only possible means of earning a good year. But the Navy has also been denying those
opportunities as well. See forthcoming Resp. re: Compliance. Nor is it clear that there are adequate
remote or correspondence opportunities to allow SEAL 1 and SEAL 10 to fulfill their requirements
without penalty. And it also does not resolve the issue of SEALs 1 and 10’s inability to participate
in Annual Training, which will result in adverse consequences and will be detrimental to their
career progression.
SEAL 1 and SEAL 10’s commanding officer wanted them to go with the rest of the team
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to complete Annual Training in Alaska, but his hands were tied by the Navy’s absurd policy—
which, notably, Defendants made no effort to explain or defend. App.004-005, App.007-008. Since
the emergency motion was filed, SEAL 10 was offered the opportunity to complete his Annual
Training locally in San Diego by SEAL Team 17. App.005. SEAL 10 is still working out the
details and is unsure what he will be doing, but it seems as though he may be able to get credit for
Annual Training, even though it seems he will not really be doing any “training.” App.005. SEAL
1 has a different situation because he is not located near a SEAL command and his home base is a
Naval Operations Service Center (NOSC). App.008. The commanding officer of SEAL Team 17
is working on getting approval for SEAL 1 to do annual training remotely so he can fulfill his
requirement. App.008. It is unclear, however, how one can adequately do annual training to fulfill
their role as a Navy SEAL remotely. ¶ 8. As Defendants previously admitted, “the arduous training
necessary to prepare NSW personnel for these missions cannot be performed remotely.” Dkt. 44-
3 ¶ 14; see also Dkt. 43 at 2, 23 (“teleworking and physical distancing cannot be taken seriously
as feasible options when conducing special warfare missions,” and “‘anti-guerrilla warfare’ and
‘intelligence-gathering behind enemy lines,’ obviously are not amenable to telework.”) (citation
omitted). It is hard to see how SEAL 1 and SEAL 10 can maintain proficiency in certain mandatory
skills (such as over-the-beach and rappelling) if they cannot physically participate in it, which is
the whole point of Annual Training. App.005, App.008.
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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 travel to attend Annual Training. In the alternative, Defendants should
provide SEAL 1 and SEAL 10 an alternative means of fulfilling their Reserve requirements
without penalty.
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/ 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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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 SERVICE
I hereby certify that on June 7, 2022, I served the foregoing document on counsel of record
for each party.
/s/Heather Gebelin Hacker
HEATHER GEBELIN HACKER
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