Plaintiffs' Surreply in Opposition to Assertion of Mootness — U.S. Navy SEALs 1-3 v. Austin (Document 235)

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Plaintiffs' Surreply in Opposition to Defendants' Assertion of Mootness, filed 03/08/23 as Document 235 in Case No. 4:21-cv-01236-O in the Northern District of Texas, Fort Worth Division. The plaintiffs are U.S. Navy SEALs and other Navy personnel, and the defendants include Lloyd J. Austin, III, the Department of Defense and Carlos Del Toro. The surreply argues that NAVADMIN 038/23 and Defendants' February 24, 2023 policies do not moot the case, pointing to a risk matrix in which five of thirteen risk factors are attributed to the unvaccinated status of personnel. It also argues that the Defendants have only voluntarily ceased some challenged conduct, and concludes that the Court should deny Defendants' Motion.

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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’ SURREPLY IN OPPOSITION
TO DEFENDANTS’ ASSERTION OF MOOTNESS

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INTRODUCTION
Defendants’ newest policies and guidance do not moot this case. A close read of
NAVADMIN 038/23 makes clear that this policy will not “effectively provide Plaintiffs and the
class members the relief they seek,” Dkt. 226 at 3. Indeed, no policy, guidance, or directive issued
by Defendants to date completely resolves the issues remaining in this case. Regardless of what
new guidance Defendants create in an attempt to moot this case now that court-ordered mediation,
a Fifth Circuit opinion, and continued discovery, dispositive motions, and trial are looming, at
minimum, Defendants must meet their burden to show that it is “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Services (TOC), Inc., 528 U.S. 167, 189 (2000); Speech First, Inc. v. Fenves, 979 F.3d 319,
329 (5th Cir. 2020). Nothing about Defendants’ latest policies makes this “absolutely clear.” And
Defendants continue to defend the challenged policies and leave room to reinstate them. A
reasonable expectation thus remains that Defendants will continue to discriminate against the class
and may reimpose a COVID-19 vaccination requirement with an illegal religious accommodation
process in the future. At the very least, Defendants’ suggestion of mootness is premature, as new
policies admit implementation is ongoing. See Dkt. 233-1. The evidence shows that there are still
problems related to the mandate for class members. See Pls. Supp. App. 0008-0024. And even if
Defendants have a policy that complies with the law, that does not mean that they will follow it—
their policies on religious accommodation versus what they actually did in considering requests
are a prime example. Plaintiffs thus continue to have a concrete interest in the outcome of this
litigation and the case is not moot.

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ARGUMENT
I.
NAVADMIN 038/23 and Defendants’ February 24, 2023 Policies Do Not Moot This
Case.
A.
A live controversy exists because the unvaccinated status of Navy personnel
will still be taken into account according to Defendants’ policies.
Defendants maintain that “[e]nforcement of the defunct COVID-19 mandate has ceased,
so NAVADMIN 225/21 and NAVADMIN 256/21 have no ongoing effect,” and that, “[w]hile
Plaintiffs claim the word ‘suspend’ in NAVADMIN 190/21 means the Navy has plans to bring
back these enforcement mechanisms . . . the issuance of the new standard operating guidance
[(NAVADMIN 038/23)] dispels that notion.” Dkt. 226 at 2. The Deputy Secretary of Defense’s
February 24, 2023, memorandum further provides that “DoD Component heads shall formally
rescind any such policies, directives, and guidance as soon as possible, if they have not done so
already.” Dkt. 230-1. The Navy has until March 17 to do so. Id. Plaintiffs are unaware that the
Navy has done so yet, however. And while the February 24 guidance calls for the formal rescission
of the Services’ policies, directives, and guidance implementing their respective COVID-19
vaccination mandates later this month, it also makes clear that the Secretary of Defense’s de facto
mandate remains in effect. Dkt. 230-1 (“This memorandum provides additional guidance to ensure
uniform implementation of Secretary of Defense Memorandum, ‘Rescission of the August 24,
2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members
of the Armed Forces,’ January 10, 2023 (January 10, 2023 memorandum).”).
While paragraph 3 of NAVADMIN 038/23 states that “COVID-19 vaccination status shall
not be a consideration in assessing individual service member suitability for deployment or other
operational missions,” Defs. Supp. App. 002-003, the previous sentence is contradictory, and
Defendants fail to explain the Navy’s 6-page COVID-19 Operational Risk Management Matrix
for Deployments, which is linked in the NAVADMIN (and which Defendants did not bring to this
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Court’s attention). Pls. Supp. App. 0001-0006. NAVADMIN 038/23’s COVID-19 risk
management matrix is to be “used in consultation with unit Medical Providers,” to “inform
Commanders of the COVID-19 risk to mission.” Pls. Supp. App. 0002. Notably, out of thirteen
risk factors listed on the matrix, five are attributed to the unvaccinated status of personnel: “Age
of Any Unvaccinated Personnel,” “Number of Unvaccinated Personnel,” “Percent of Crew
Unvaccinated,” “Mission Essential Personnel Unvaccinated,” and “Masking for Unvaccinated
Personnel.” Id. These and the other seven factors are assessed points based on whether the risk is
“low,” “medium,” or “high.” Id. Below the matrix is the following statement: “Leaders may
emphasize specific risk factor(s) that increase risk to mission based on the deployed environment
and crew characteristic.” Id.
As the matrix demonstrates, a Navy servicemember’s unvaccinated status is to be
considered by commanders for operational decision-making purposes despite the language on the
face of the policy. Pls. Supp. App. 0002. Using vaccination status as nearly half of the criterion for
considering health risks to a mission is consistent with the Secretary of Defense’s de facto mandate,
as described in his original rescission memorandum, Pls. App. 0003, and as reinforced in the
Deputy Secretary of Defense’s February 24 guidance. Dkt. 230-1. In Defendants’ own words, “[i]f
there is any doubt, the Secretary’s directive controls. See 10 U.S.C. § 113; 10 U.S.C. § 8013(b).”
Dkt. 226 at 2. And the Secretary’s January 10, 2023 directive unequivocally states that
commanders can continue to consider vaccination status “in making deployment, assignment, and
other operational decisions.” Pls. App. 0003; see also Dkt. 230-1. Further, commanders are
explicitly told to “encourage [up to date] COVID-19 vaccination of personnel at least 30-days prior
to deployment-related movements or operations.” Defs’ App. 009.
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Considering Defendants’ plan to erase the class members’ religious accommodation
requests from their files as if they never existed, Dkt. 224 at 9; Dkt. 230-2; Dkt. 233-1, the class
will continue to suffer harm without any opportunity to receive accommodations for their religious
objections if they are subject to consideration of their vaccination status in line with the Secretary’s
statement. Pls. App. 0078-0158. At minimum, the class members will have to reassert the same
religious objections if they are permitted to resubmit a request for religious accommodation. And
because of the removal of these requests, others assessing unvaccinated class members for
assignments will not know whether that sailor was an all-out “refuser,” or whether they had
complied with the rules and asserted a sincere religious objection to vaccination, something that
will influence decisions regardless of official guidance.
The class continues to suffer harm because the coercion to get vaccinated remains, as the
declarations1 Plaintiffs submitted in response to Defendants’ assertion of mootness show, Pls. App.
0078-0158, see also Pls. Supp. App. 0008-0024, and by Defendants’ own policies as explained
above. Class members are still being denied returns to operational commands and are being denied
dive physicals necessary to return to operational commands, yet in some cases, the Navy appears
to be engaging in retaliation by rushing some class members to operational commands outside of
normal Navy protocol despite harm to the class member and their family. Pls. Supp. App. 0012-
0024. The Secretary of the Navy’s February 24 guidance states that the records of all Navy

1 Defendants complain that the “declarations should not be considered because these Plaintiffs have failed to comply
with the discovery rules.” Dkt. 226 at 4. But Defendants have yet to “demonstrate a ‘particularized need to obtain
information not available from class representatives,” In re Carbon Dioxide Indus. Antitrust Litig., 155 F.R.D. 209,
212 (M.D. Fla. 1993); accord Egana v. Blair’s Bail Bonds, Inc., No. CV 17-5899, 2018 WL 10593649 (E.D. La. May
29, 2018). And there are no court orders requiring the non-class representatives to participate. Defendants also
complain that Plaintiffs submitted declarations from class members not listed on disclosures, but neither is Captain
Healy, to Plaintiffs’ knowledge. Nor it is evident why Plaintiffs would need to disclose witnesses they are mustering
on short notice in response to newly changing policies and Defendants’ assertion of mootness, not “its claims or
defenses” at trial. See Fed. R. Civ. P. 26(a)(1)(A)(i). Thus, the declarations are appropriate for consideration.
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servicemembers “who sought or were subsequently denied an exemption from the COVID-19
vaccination” will “be reviewed and any adverse information related to their COVID-19 vaccine
refusal shall be removed from the service record.” Dkt. 230-2. Yet the scope of what Defendants
deem is “adverse” in personnel files is undefined, and evidence shows that adverse information
still exists in personnel files in any event. Pls. Supp. App. 0008-0011.2 According to the latest
guidance, this “review” is still ongoing. Dkt. 233-1.
B.
The case is not moot because Defendants have only voluntarily ceased some
challenged conduct.

Defendants claim that because the NDAA compelled the termination of the COVID-19
vaccine mandate, their cessation of the mandate was not voluntary. Dkt. 226 at 7. But the other
actions Defendants claim moot the case—the subsequent policies and guidances—go beyond what
was required in the NDAA, which only requires repeal of the original mandate. It does not prevent
Defendants from instituting a new mandate or continuing with their discriminatory treatment of
sailors who declined vaccination for religious reasons. The timing and focus of these new policies
also demonstrate that they are only being issued to attempt to moot this litigation. For example,
NAVADMIN 038/23 was issued in the middle of the parties’ mootness briefing schedule—after
the Plaintiffs’ response brief was filed and right before Defendants’ reply brief was due to be filed.
And Defendants’ newest guidance—NAVADMIN 065/23—was issued the day before this
surreply was due. Dkt. 233.3 Given that timeline, it is apparent that Defendants’ intent is to

2 On February 28, 2023, Defense Department officials testified before the House Armed Services Committee and
stated that “[t]he services are going through a process to review those cases [where individuals ‘disobeyed a lawful
order’ to get a COVID-19 vaccine] to make a determination what needs to be done.” Meghann Myers, Troops who
refused
COVID
vaccines
still
could
face
punishment,
Military
Times
(Feb.
28,
2023),
https://www.militarytimes.com/news/coronavirus/2023/02/28/troops-who-refused-covid-vaccines-still-could-face-
punishment/?utm_source=sailthru&utm_medium=email&utm_campaign=mil-ebb&SToverlay=de88742f-46f7-
4f2c-819d-3b36a47d6a7e.
3 Notably, it took months for Defendants to comply with this Court’s injunction, yet now new policies are being
churned out. See Dkt. 112, 117.
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challenge Plaintiffs’ claims that class members remain non-operational and continue to suffer
adverse effects from the mandate, not to usher in meaningful change. As for the Deputy Secretary
of Defense’s February 24 policy, it seems that the purpose is to respond to Plaintiffs’ argument
that NAVADMINs 225/21 and 256/21 have not been cancelled and remain suspended.
For these reasons, there is no question that Defendants’ latest round of policies constitute
voluntary cessation for the purpose of “litigation posturing.” Yarls v. Bunton, 905 F.3d 905, 910
(5th Cir. 2018). The fact that each policy attempts to speak to the various harms Plaintiffs bring to
the Court’s attention is obvious. Perhaps tomorrow will bring another set of guidance targeting the
issues raised in this brief. But considering Defendants’ vehement opposition to Congress’s
directive to rescind the 2021 mandate,4 the matrix in NAVADMIN 038/23 that allows commanders
to consider servicemembers’ vaccination status in the context of overall risk to missions, the
Secretary of Defense’s de facto mandate, and the February 24 policies that provide no guarantee
that Defendants’ discriminatory behavior will end, a live controversy remains. At minimum, the
contradictory statements in the policies fail to satisfy Defendants’ “formidable burden of showing
that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to
recur.” Friends of the Earth, 528 at 190 (emphasis added).
Even under the more relaxed standard the court sometimes applies when the defendant is
a government actor, Defendants still fail to satisfy their burden. Speech First, 979 F.3d at 327.
First, Defendants have not issued “a controlling statement of future intention [not to repeat their
discriminatory behavior].” Id. Second, Defendants continue to defend and applaud the challenged
policy, not only in the very document that calls for rescission of the COVID-19 vaccine mandate,

4 See e.g., Heather Mongilio, Pentagon Unclear How Military Would Manage End of Mandatory COVID-19 Vaccines,
USNI NEWS (Dec. 7, 2022), https://news.usni.org/2022/12/07/pentagon-unclear-how-military-would-handle-end-of-
mandatory-covid-19-vaccines.
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Pls. App. 0002, but also in the Deputy Secretary of Defense’s most recent February 24, 2023
guidance. Dkt. 230-1 (“Department leadership . . . will continue to promote and encourage
vaccinations for all Service members along with continued use of other effective mitigation
measures.”); Defs. Supp. App. 006 (stating that “The virus is still with us and it is still dangerous,
and the combination of vaccines, boosters, command engagement and personal accountability
continue to be our best defense.”); Defs. Supp. App. 013-035 (Decl. of Gareth Healy) (defending
the fifty-step SOP for the Navy’s religious accommodation request process). Third, as explained
above, the Navy’s timing of its new policies is suspicious. Id.
Moreover, Defendants maintain the “authority to reinstate [the challenged policies] at any
time,” which subjects class members to a credible threat of widespread enforcement of
Defendants’ discriminatory vaccination requirements in the future. Tandon v. Newsom, 141 S. Ct.
1294, 1297 (2021). Counsel for Defendants admitted to the Fifth Circuit that there is no guarantee
that another COVID-19 vaccine mandate would not be implemented in the future.10 And as Judge
Duncan posited during Defendants’ counsel’s oral argument, if another vaccination mandate
issued, the “military is going to follow the same [sham religious accommodation] policy going
forward. Nothing in the record would indicate otherwise.”11 Since the COVID-19 vaccine mandate
was implemented, Defendants have made clear that they have no intention of ever complying with
their exacting RFRA and First Amendment obligations. Without a controlling statement or policy
confirming that Defendants will remedy their discriminatory accommodation process and not
repeat their unlawful actions or the challenged vaccination policy, this case is not moot.

10 During oral argument, Defendants’ counsel advised the Fifth Circuit panel that “[u]nder the prevailing public health
guidelines and understanding of the virus, there is no current intention to institute a universal vaccine requirement.”
Oral Argument at 8:12-19, U.S. Navy SEAL 1-26 v. Biden, No. 22-10077 (5th Cir. Feb. 6, 2023), available at
https://www.ca5.uscourts.gov/OralArgRecordings/22/22-10077_2-6-2023.mp3.  (emphasis added).
11 Id. at 9:44-9:49.
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C.
Plaintiffs’ claims are capable of repetition yet evade review.

Even if Defendants’ challenged conduct had completely stopped, this case is the
“exceptional situation” where Plaintiffs may proceed beyond any possibility of mootness.
Kingdomware Tech., Inc. v. United States, 136 S.Ct. 1969, 1976 (2016). Defendants argue that
Plaintiffs failed to satisfy their burden of showing that the first element of the capable-of-
repetition-yet-evading-review exception to mootness applies in this case because “vaccination
requirements are not inherently too short to be fully litigated.” Dkt. 226 at 9. But as Defendants’
own authorities acknowledge, “[c]laims need to be judged on how quickly relief can be achieved
in relation to the specific claim.” Empower Texans, Inc. v. Geren, 977 F.3d 367, 370 (5th Cir.
2020). Here, the issue is a vaccine for a virus that continues to mutate along with Defendants’
policies. Defendants argue that Plaintiffs cannot show that the vaccine mandate “would have
changed but for Congress’ intervening legislation,” Dkt. 226 at 9, but Defendants’ own new
policies recognize the changing nature of the virus. See Defs. Supp. App. 002 (referencing risk
matrix and “steady state” posture); Pls. Supp. App. 0001-0007 (risk matrix considers “severity of
currently circulating variant”); Defs. Supp. App. 006 (stating that “The virus is still with us and it
is still dangerous, and the combination of vaccines, boosters, command engagement and personal
accountability continue to be our best defense.”); Defs. Supp. App. 007 (discussing
implementation of “evolving CDC guidance related to virus behavior and mitigations”). And even
their policies implementing the mandate were changed and updated over time. Because the
mandate was unexpectedly rescinded before Defendants’ unlawful actions could be fully litigated
by this Court, but the Defendants’ unlawful actions may still recur, application of this exception
to mootness would be appropriate even if the Court finds that all challenged conduct has ceased.

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II.
Plaintiffs May Pursue Monetary Relief from Defendants.

Plaintiffs’ potential monetary claims are not barred by the doctrine of sovereign immunity.
RFRA provides that a “person whose religious exercise has been burdened in violation of this
section may . . . obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c)
(emphasis added). RFRA also provides that a plaintiff may obtain “appropriate relief against a
government.” What constitutes “appropriate relief” does not change depending on whether the
defendant is an individual capacity defendant or an official capacity or agency defendant. As the
Supreme Court recently said in holding that RFRA’s “appropriate relief” includes money damages
against officials in their individual capacities, “[a] damages remedy is not just ‘appropriate’ relief
as viewed through the lens of suits against Government employees. It is also the only form of relief
that can remedy some RFRA violations. . . . Given the textual cues just noted, it would be odd to
construe RFRA in a manner that prevents courts from awarding such relief.” Tanzin v. Tanvir, 141
S. Ct. 486, 492 (2020) (emphasis in original). Sossamon v. Texas—relied on by Defendants—is
easily distinguishable. 563 U.S. 277 (2011). Sossamon dealt with a different statute (RLUIPA),
whereas Tanzin directly addressed the statute at issue in this case (RFRA). As both Sossamon and
Tanzin recognized, though the same language may be used in both statutes, the meaning of that
language is “‘inherently context dependent’” and might even differ as between the use of the same
phrase in different sections of even the same statute. Tanzin, 141 S. Ct. at 491 (quoting Sossamon,
563 U.S. at 286); see also Sossamon, 563 U.S. at 292 (contrasting language in RLUIPA §§ 2 and
3 and noting one possible “unequivocal textual waiver” of sovereign immunity for money damages
might apply to §2 but not to § 3 despite both relying on the same “appropriate relief” provision).
The context of RLUIPA makes its use of “appropriate relief” far different than the language
in RFRA. RLUIPA is narrower in scope, applying only to institutionalized persons and religious
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land use. RLUIPA and RFRA were also enacted pursuant to different constitutional provisions.
RFRA, which waives sovereign immunity only as to the federal government, was enacted pursuant
to § 5 of the Fourteenth Amendment, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 695
(2014), while RLUIPA, which waives sovereign immunity as to the states, was enacted pursuant
to the Spending Clause, Sossamon, 563 U.S. at 289. Sossamon noted that RLUIPA’s Spending
Clause authority, if anything, potentially limits RLUIPA’s scope for damages. Id. at 290 (“[I]n
Barnes and Franklin, the Court discussed the Spending Clause context only as a potential
limitation on liability” (emphasis in original) (citing Barnes v. Gorman, 536 U.S. 181, 187–88
(2002) and Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 74–75 (1992))). The two statutes
also waive immunity for different entities. While RLUIPA is a federal statute that waives immunity
for other sovereigns (the states)—a situation where it may make sense to limit the scope of the
waiver, RFRA is the federal government waiving its own immunity, and doing so clearly to allow
for individuals harmed by federal action to obtain any appropriate relief. Finally, the context
surrounding enactment matters. Congress passed RFRA the year after Franklin, which presumed
the phrase “appropriate relief” included money damages. Congress did not limit “appropriate
relief” to “appropriate equitable relief” as it had done in other statutes, and Congress provided this
“appropriate relief” in a context where often the only relief available is often money damages.
Interpreting RFRA’s damages provision to be ambiguous on this point would, indeed, be “odd.”
Cf. Tanzin, 141 S. Ct. at 492. Thus, Plaintiffs may pursue monetary relief against Defendants.5

5 After the Court’s ruling on mootness, Plaintiffs could seek leave to amend their complaint to add this claim, though
“[w]here, as here, the plaintiff’s complaint seeks all such further relief as the Court deems necessary and proper, it is
unnecessary for the plaintiff to specifically plead nominal damages.” Neutron Depot, LLC v. Bankrate, Inc., No.
AU-16-CA-01170-SS, 2018 WL 6588573, at *1 (W.D. Tex. Aug. 16, 2018).
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CONCLUSION

For the foregoing reasons, this Court should deny Defendants’ Motion.
Respectfully submitted this 8th day of March, 2023.

/s/ Heather Gebelin Hacker

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
   Texas Bar No. 24128002
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
1331 Pennsylvania Ave., NW, Ste. 1410
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
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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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 March 8, 2023, I electronically filed the foregoing document
through the Court’s ECF system and will serve a copy on each of the Defendants according to the
Federal Rules of Civil Procedure.

/s/ Heather Gebelin Hacker

HEATHER GEBELIN HACKER

Case 4:21-cv-01236-O   Document 235   Filed 03/08/23    Page 14 of 14   PageID 7751

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