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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’ SUPPLEMENTAL APPENDIX IN OPPOSITION TO DEFENDANTS’
ASSERTION OF MOOTNESS
Tab
Description
Bates Number(s)
1
NAVADMIN 038/23 COVID-19 Operational Risk
Management Matrix for Deployments
0001-0007
2
Second Declaration of Levi Beaird, Lieutenant
Commander (Sel), USN
0008-0011
3
Declaration of Annmarie Acevedo, Lieutenant,
USN
0012-0015
4
Declaration of U.S. Navy SEAL 23
0016-0019
5
Declaration U.S. Navy SEAL 13
0020-0024
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 1 of 26 PageID 7752
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
Rule 49(c)(8) under the supervision of an
attorney admitted to the D.C. Bar.
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
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 2 of 26 PageID 7753
Tab 1
Pls.' Opp. to Assertion of Mootness Suppl. App. 0001
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 3 of 26 PageID 7754
M E D I C A L
P O W E R
F O R
N A V A L
S U P E R I O R I T Y
Navy COVID-19 Operational Risk
Management Matrix for Deployments
Peter Seguin
CDR MC USN
BUMED N44
(703)681-9474
peter.g.seguin.mil@health.mil
Pls.' Opp. to Assertion of Mootness Suppl. App. 0002
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 4 of 26 PageID 7755
M E D I C A L
P O W E R
F O R
N A V A L
S U P E R I O R I T Y
2
Assumptions
• This tool when, used in consultation with unit Medical Providers, can
inform Commanders of the COVID-19 risk to mission
• This matrix is intended to inform decision making, not to direct
measures upon a Command or force a Commander’s decision
• There may be additional risk factors not contained in the matrix that
can impact operational risk.
• The risk factors should be periodically reviewed as COVID-19 variants
and other circumstances change
Pls.' Opp. to Assertion of Mootness Suppl. App. 0003
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 5 of 26 PageID 7756
M E D I C A L
P O W E R
F O R
N A V A L
S U P E R I O R I T Y
3
LOW RISK TO MISSION <7 POINTS
MEDIUM RISK TO MISSION 7-11 POINTS
HIGH RISK TO MISSION 12+ POINTS
RISK FACTORS*
RTM RTF RTI
GREEN
(0 POINTS)
YELLOW
(1 POINT)
RED
(2 POINTS)
Age of Any Unvaccinated Personnel
X
18-29 yrs
30+ yrs
Medical Conditions
X
0
1
2+
Number of Unvaccinated Personnel
X
X
1-10
11-49
50+
Percent of Crew Unvaccinated
X
X
<10%
10-29%
30%+
Mission Essential Personnel Unvaccinated
X
No
Yes
Masking for Unvaccinated Personnel
X
X
Yes/N95/KN95
Intermittent
No
Austere Location
X
X
No
Yes, MEDEVAC within 1 day
Yes, MEDEVAC within 2 days
Congregate Setting
X
X
X
No
Intermittent
Yes
Unit Medical Officer
X
X
X
Yes
MO Nearby
No
Foreign Nation Provides Near US Standard of Care
X
Yes
Within 24 hours
No
Liberty with Elevated COVID-19 Risk
X
X
Low
Medium
High
Severity of Currently Circulating Variant
X
X
X
Low
Medium
High
Risk to MEDEVAC Crew
X
Low
Medium
High
Risk to Mission (RTM)
Risk to Force (RTF)
Risk to Individual (RTI)
*Leaders may emphasize specific risk
factor(s) that increase risk to mission based
on the deployed environment and crew
characteristic
Navy COVID-19 Operational Risk Management
Matrix for Deployments
Purpose: This matrix aims to reduce the risk of mission impact due to one or more cases of
moderate/severe COVID-19 disease in a deployed service member where the organic medical team
cannot provide adequate medical management
Pls.' Opp. to Assertion of Mootness Suppl. App. 0004
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 6 of 26 PageID 7757
M E D I C A L
P O W E R
F O R
N A V A L S U P E R I O R I
4
Operational Risk Management Matrix for Deployments
Steps
1. Calculate risk to mission points by evaluating the deployment risk factors based on crew characteristics
and the deployed environment and location(s)
2. Based on the risk to mission determination (low/medium/high) consider and implement measures to
decrease the risk of moderate/severe COVID-19 case(s) causing mission impact
RISK FACTORS*
RTM RTF
RTI
GREEN
(0 POINTS)
YELLOW
(1 POINT)
RED
(2 POINTS)
Age of Any Unvaccinated Personnel
X
18-29 yrs
30+ yrs
Medical Conditions
X
0
1
2+
Number of Unvaccinated Personnel
X
X
1-10
11-49
50+
Percent of Crew Unvaccinated
X
X
<10%
10-29%
30%+
Mission Essential Personnel Unvaccinated
X
No
Yes
Masking for Unvaccinated Personnel
X
X
Yes/N95/KN95
Intermittent
No
Austere Location
X
X
No
Yes, MEDEVAC within 1 day
Yes, MEDEVAC within 2 days
Congregate Setting
X
X
X
No
Intermittent
Yes
Unit Medical Officer
X
X
X
Yes
MO Nearby
No
Foreign Nation Provides Near US Standard of Care
X
Yes
Within 24 hours
No
Liberty with Elevated COVID-19 Risk
X
X
Low
Medium
High
Severity of Currently Circulating Variant
X
X
X
Low
Medium
High
Risk to MEDEVAC Crew
X
Low
Medium
High
Pls.' Opp. to Assertion of Mootness Suppl. App. 0005
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 7 of 26 PageID 7758
M E D I C A L
P O W E R
F O R
N A V A L
S U P E R I O R I T Y
5
Measures to Decrease Risk
1) Masking/additional HPM during a shipboard outbreak
2) Strict N95 use (masking) for first +/-10 days underway if embarking
from an area with high community transmission
3) Testing all crew/pax prior to deployment
4) ROM for all crew/pax prior to a deployment
5) Units deploy with COVID-19 vaccine doses (if possible)
6) Units deploy with anti-viral medications (if possible)
Pls.' Opp. to Assertion of Mootness Suppl. App. 0006
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 8 of 26 PageID 7759
M E D I C A L
P O W E R
F O R
N A V A L S U P E R I O R I
6
Example Deployment Scenario:
USS Nimitz (CVN 68, crew 5,000) deploys with 80
unvaccinated junior Sailors to RIMPAC
Score: 10 Points =
Medium Risk to
Mission
RISK FACTORS*
RTM RTF RTI
GREEN
(0 POINTS)
YELLOW
(1 POINT)
RED
(2 POINTS)
Age of Any Unvaccinated Personnel
X
18-29 yrs
30+ yrs
Medical Conditions
X
0
1
2+
Number of Unvaccinated Personnel
X
X
1-10
11-49
50+
Percent of Crew Unvaccinated
X
X
<10%
10-29%
30%+
Mission Essential Personnel Unvaccinated
X
No
Yes
Masking for Unvaccinated Personnel
X
X
Yes/N95/KN95
Intermittent
No
Austere Location
X
X
No
Yes, MEDEVAC within 1 day
Yes, MEDEVAC within 2 days
Congregate Setting
X
X
X
No
Intermittent
Yes
Unit Medical Officer
X
X
X
Yes
MO Nearby
No
Foreign Nation Provides Near US Standard of Care
X
Yes
Within 24 hours
No
Liberty with Elevated COVID-19 Risk
X
X
Low
Medium
High
Severity of Currently Circulating Variant
X
X
X
Low
Medium
High
Risk to MEDEVAC Crew
X
Low
Medium
High
LOW RISK TO MISSION <7 POINTS
MEDIUM RISK TO MISSION 7-11 POINTS
HIGH RISK TO MISSION 12+ POINTS
Action: 1) Implement Measures to
Decrease Risk (OR)
2) Accept Risk (based on Risk Tolerance
and as advised by Medical Providers)
Pls.' Opp. to Assertion of Mootness Suppl. App. 0007
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 9 of 26 PageID 7760
Tab 2
Pls.' Opp. to Assertion of Mootness Suppl. App. 0008
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 10 of 26 PageID 7761
1
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
SECOND DECLARATION OF LEVI BEAIRD,
LIEUTENANT COMMANDER (SEL), USN
Pursuant to 28 U.S.C. §1746, I, Levi Beaird, declare under penalty of perjury as follows:
1.
I am over the age of eighteen and competent to make this second declaration in
support of Plaintiffs’ assertion that this case is not moot.
2.
As I fully explained in my first declaration, in 2017, I accepted a retention bonus
of $105,000, that was being paid in annual installments since 2017. Those payments stopped in
November 2021 when I was unable to satisfy the Navy’s requirements for retaining the bonus due
to the Navy’s negative treatment of my unvaccinated status.
Pls.' Opp. to Assertion of Mootness Suppl. App. 0009
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 11 of 26 PageID 7762
2
3.
Although the DoD’s and the Navy’s COVID-19 vaccine requirements have been
rescinded, no one in my chain of command has discussed with me whether my bonus payments
will ever resume. The total amount I have received so far is still $75,000.
4.
Additionally, despite the Navy’s February 24, 2023, Department of the Navy
Actions to Implement Coronavirus Disease 2019 Vaccine Rescission, stating that “[t]he service
records for those Sailors and Marines so identified shall be reviewed and any adverse information
related to their COVID-19 vaccine refusal shall be removed from the service record,” I continue
to have adverse information in my personnel file that will likely have adverse career consequences
for me in the future.
5.
Specifically, there is a Request for Complete Copy of Official Military Personnel
File dated April 20, 2022, that was issued by the Navy Region Mid-Atlantic Commanding Officer
to the Commander of the Navy Personnel Command (PERS 313). According to the request, the
responsive record was to “be used in [my] Board of Inquiry proceedings.” The only reason I was
facing a Board of Inquiry was because the Navy was trying to discharge me for remaining
unvaccinated against COVID-19 in accordance with my sincerely held religious beliefs.
6.
If this information remains in my personnel records or the Navy’s service records,
it will likely result in adverse career consequences for me because anyone who has access to those
records will know that I faced involuntary discharge from the Navy.
7.
Because there is no context provided in the April 20, 2022, record request document
explaining that the Board of Inquiry proceedings were the direct result of the DoD’s and the Navy’s
August 2021 COVID-19 vaccine mandates, anyone with access to my service records will never
know the reason why I faced involuntary separation.
Pls.' Opp. to Assertion of Mootness Suppl. App. 0010
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 12 of 26 PageID 7763
3
8.
The April 20, 2022, record request is adverse to me but has not been removed from
my personnel records despite the Navy’s February 24, 2023, guidance.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on March 8, 2023.
/s/ Levi Beaird
LEVI BEAIRD
Pls.' Opp. to Assertion of Mootness Suppl. App. 0011
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 13 of 26 PageID 7764
Tab 3
Pls.' Opp. to Assertion of Mootness Suppl. App. 0012
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 14 of 26 PageID 7765
1
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
DECLARATION OF ANNMARIE ACEVEDO, LIEUTENANT, USN
Pursuant to 28 U.S.C. §1746, I, Annmarie Acevedo, declare under penalty of perjury as
follows:
1.
I am over the age of eighteen and competent to make this declaration in support of
Plaintiffs’ assertion that this case is not moot.
2.
I am presently assigned to the United States Navy Aegis Ashore Missile Defense
System Poland, Detachment. I am the Officer in Charge of the Detachment. I am responsible for
manning, training, and equipping over 100 Sailors, both officer and enlisted, for deployment to
Poland and in support of Ballistic Missile Defense operations in the European Command Area of
Responsibility. This is a shore-duty assignment where I am presently non-operational.
Pls.' Opp. to Assertion of Mootness Suppl. App. 0013
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 15 of 26 PageID 7766
2
3.
I have been assigned to overseeing the Detachment since December 10, 2021.
4.
I filed a religious accommodation request in September of 2021. At that time, I had
finished Department Head school and was in the process of completing weapons officer training
pipeline schooling. In November 2021, the Navy issued guidance stating that unvaccinated Sailors
could not change duty stations (i.e., PCS), so the Navy was trying to keep me at the school I was
attending at that time. But I needed to get home for childcare reasons because I did not have
childcare past November, as planned. My Detailer found me a position at Aegis Ashore, where I
am presently assigned, because I was not permitted to report to the ship to assume weapons officer
duties, which was the next step in my career.
5.
Since that time, I have not heard from my Detailer. But on March 1, 2023, he called
to advise me that the Navy was trying to get me back to sea as soon as possible for a 12-month
tour. My Detailer wants me to report to a ship in March 2023 and, according to him, the sooner I
can get there, the better. This is a complete change in procedure from how the Navy was handling
unvaccinated Sailors and their detailing for assignments since November 2021. It is also a change
in normal procedure period.
6.
Previously, the Navy would not allow me to go back to sea because of my
vaccination status, so this is a very quick turn that my family is not prepared for. My spouse is a
civilian surgical assistant on two different call schedules. I have no family to assist me with
childcare, so when I go to training or sea duty, I need a nanny. Because I do not have or need a
nanny while on shore duty, our family needs the standard amount of time typically offered by the
Navy to make a plan. This amount of time is usually approximately six months.
7.
In the past, when the Navy scheduled me for training or sea duty, I have had enough
notice to prepare for childcare. But I am presently unable to report to a sea duty billet within the
Pls.' Opp. to Assertion of Mootness Suppl. App. 0014
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 16 of 26 PageID 7767
3
next two to four weeks, especially considering it will take me away from my family for a
consecutive 12 months (with a few days home here and there) because I will not be able to find
suitable and trustworthy childcare in time.
8.
Through this RAR process, I have suffered harm both personally and to my career.
In an attempt to improve my overall situation, I submitted my package to join the Navy Reserve
on March 2, 2023, since I need to be in a place to be competitive among my peers and advance my
career. For the Navy to now suddenly say that I need to adjust the course of my entire life in a
matter of weeks is impossible considering my family needs.
9.
When I explained all of this to my Detailer, his answer was that I made a
commitment to the Navy by signing a contract and there is no getting out of going to sea. But up
until that day (March 1), no one was interested in having me at sea or even in the Navy because of
my sincere religious beliefs against COVID-19 vaccination.
10.
I appreciate that I can now be operational again and continue serving as an active-
duty Sailor, but it appears that the Navy is intentionally rushing this process and not providing me,
and likely others in my position, the appropriate amount of time necessary to get my family’s
childcare needs resolved before a 12-month sea-duty assignment. I am also not being given other
sea-duty assignment options. These are all things the Navy would typically provide in the normal
course of Navy assignments.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on March 8, 2023.
/s/ Annmarie Acevedo
ANNMARIE ACEVEDO
Pls.' Opp. to Assertion of Mootness Suppl. App. 0015
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 17 of 26 PageID 7768
Tab 4
Pls.' Opp. to Assertion of Mootness Suppl. App. 0016
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 18 of 26 PageID 7769
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
DECLARATION OF U.S. NAVY SEAL 23
Pursuant to 28 U.S.C. § 1746 I, U.S. Navy SEAL 23, under penalty of perjury declare as
follows:
1. I am over the age of eighteen and competent to make this declaration.
2. I am submitting this declaration in support of Plaintiffs’ assertion that this case is not
moot.
3. I am one of the original Plaintiffs in this action. I am presently an E-6.
4. I submitted several declarations in this matter that outline my religious objections to the
Pls.' Opp. to Assertion of Mootness Suppl. App. 0017
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 19 of 26 PageID 7770
COVID-19 vaccine and the adverse actions the Navy has taken against me. Since January 3,
2022, I have been protected from separation from the Navy because of the preliminary
injunction. Yet, consequences of the mandate still exist and personally impact my career in the
Navy.
5. In April of 2022, I had an opportunity to submit a package to be considered for a leading
petty officer position, which was a “milestone” leadership position. Within the Navy Special
Warfare community, a milestone leadership position is one that must be completed in order to
advance to the next grade and rank. Attaining that leadership position would have secured my
eligibility to promote to E-7.
6. Because I was unable to even be considered for that position, I cannot advance to an E-7.
7. Even if the Navy gave me the opportunity to be competitive for a milestone leadership
position today, I would be anywhere between one and three years behind others who are younger
than me and do not have as much time in the Navy as me yet have been and are being selected
for milestone positions ahead of me.
8. I have also not yet returned to an operational status. About two weeks ago, I inquired
with my Chief Corpsman in medical about the status of my dive physical. My dive physical has
not been approved due to my unvaccinated status. Approval of my dive physical is necessary for
me to be operational and retain my special duty pays. I followed up with my Chief Corpsman
again last week and provided him with NAVADMIN 038/23 to let him know that my dive
physical should now be approved. To date, I have not received a response from him.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true
and correct. Executed on March 6, 2023.
Pls.' Opp. to Assertion of Mootness Suppl. App. 0018
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 20 of 26 PageID 7771
/s/ U.S. Navy SEAL 23
U.S. Navy SEAL 23
Pls.' Opp. to Assertion of Mootness Suppl. App. 0019
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 21 of 26 PageID 7772
Tab 5
Pls.' Opp. to Assertion of Mootness Suppl. App. 0020
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 22 of 26 PageID 7773
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
SECOND DECLARATION OF U.S. NAVY SEAL 13
Pursuant to 28 U.S.C. § 1746 I, U.S. Navy SEAL 13, under penalty of perjury declare as
follows:
1. I am over the age of eighteen and competent to make this declaration.
2. This is the second declaration I am submitting in support of Plaintiffs’ assertion that this
case is not moot.
3. As I stated in my first declaration submitted in support of this issue, I am one of the
original Plaintiffs in this action. I am presently an E-6.
4. Before the August 24, 2021, mandate, I was recruited to fill a deploying leading petty
Pls.' Opp. to Assertion of Mootness Suppl. App. 0021
Case 4:21-cv-01236-O Document 236 Filed 03/08/23 Page 23 of 26 PageID 7774
officer position for a deploying unit. This leadership position was a “milestone” leadership
position. Within the Navy Special Warfare community, a milestone leadership position is one
that must be completed in order to advance to the next grade and rank. Attaining that leadership
position would have ensured my promotion to E-7.
5. Because I did not complete my time in that position, I cannot advance to an E-7. Even if
the Navy gave me that position back today, it would not matter because in the Navy, you must be
in a paygrade for three years in order to receive retirement pay for that rank. I have served in the
U.S. Navy for 18 years and will reach my 20 years of service to retire before I could be an E-7
for three years. I will lose close to $100,000 in overall retirement pay because I will not be able
to retire as an E-7.
6. Back in 2021, in preparation for filling the milestone leadership position, I was sent to a
specialized school in advance of my scheduled deployment. I was attending this school before
the August 24, 2021 COVID-19 vaccine mandate went into effect.
7. While attending school, in or about September 2021, I submitted my Religious
Accommodation Request (RAR). A few days after submitting my RAR, I was removed from the
school by my command because I submitted a RAR.
8. A few weeks after that, when I was back at my home station, my commanding officer
advised that all RARs were being denied. In December 2021, I discovered that I was removed
from my leadership position when I was, without warning or notice from my chain of command,
dropped from an official leadership chat thread for my platoon and realized that someone else
suddenly assumed my leadership duties.
9. When I no longer filled a leadership position for my platoon, I was assigned
Pls.' Opp. to Assertion of Mootness Suppl. App. 0022
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administrative busy work that I have performed daily and in person among individuals who are
still deployable and in rotations to deploy. For example, I have been responsible for managing
rollcall for 12-20 people on any given day and handling any random, administrative, non-
deployable tasks that require attention. I performed these duties until I went on paternity leave in
January 2023 and fully expect to be performing these duties when I return to work in April 2023.
No one in my command has communicated with me about the Navy’s updated policies or to tell
me that I will be performing different duties upon my return to work. The duties I have been
performing are well below my paygrade and below my level of education and training.
10. Despite my circumstances, I have excelled at performing these duties. As a result, four
months ago, my current leadership asked if I could be returned to a deployable platoon, but the
request was denied. Again, on February 1, a similar request was made by the Officer in Charge
(OIC) of another deployable platoon for me to return to the deployable platoon, but it was denied
by my Master Chief. Despite the rescission of the COVID-19 vaccine mandate, my Master
Chief said that I would not deploy, but considering the change in policies, I could now be
transferred to shore-duty. I have not received any information to suggest that I will return to a
deployable platoon.
11. About a year and a half ago, my dive physical was denied approval due to my vaccination
status. To date, I have not been advised that my dive physical has been processed and approved.
This means I am still unable to sky dive and engage in combat diving, which are both tasks I am
required to perform in the deployed environment. Approval of my dive physical is necessary for
me to retain my special duty pays.
12. Considering my chain of command was quick to remove me from my position in a
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specialized school a few days after I filed my RAR, and then a few weeks later my command
removed me from my milestone leadership position, my expectation is that the same swift
communication should occur now that the COVID-19 vaccine mandates have been rescinded and
NAVADMIN 038/23 has been implemented.
13. Despite being on paternity leave, I am in regular contact with my supervisors and check
my official email once or twice per week. But no one in my command has advised me of any
change in status to my dive physical or my return to an operational status based on the new
guidance implemented by the Navy and the Department of Defense.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true
and correct. Executed on March 7, 2023.
/s/ U.S. Navy SEAL 13
U.S. Navy SEAL 13
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