Plaintiffs’ Supplemental Reply Brief Re: Fifth Circuit Decision

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In the United States District Court, Northern District of Texas, Fort Worth Division, U.S. Navy SEALs and other Navy servicemembers, as Plaintiffs, file a supplemental reply brief on the Fifth Circuit decision in their case against the United States Secretary of Defense and the United States Department of Defense. Plaintiffs state that the remaining disputes center on the Navy's religious accommodation process, continuing harm to Class Members' careers, and new policies that do not prohibit all discrimination over vaccination status. They argue these ongoing harms support injunctive and declaratory relief and, alternatively, that the capable-of-repetition-yet-evading-review exception to mootness applies. The brief concludes that the Court should find that the case is not moot.

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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 REPLY BRIEF RE: FIFTH CIRCUIT DECISION

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After reviewing the Navy’s supplemental brief, Plaintiffs believe that the remaining
disputes in this case center around a few areas: (1) the Navy’s persistently illegal religious
accommodation process; (2) the continuing harm to Class Members’s careers resulting from the
Navy’s discriminatory treatment of those who submitted requests for religious accommodation,
which the Navy continues to refuse to recognize as “adverse” and also refuses to correct; and (3)
the Navy’s new policies do not prohibit all illegal discrimination against Class Members for their
vaccination status.1 These harms are ongoing and thus provide a basis for injunctive and
declaratory relief. And these things are not difficult for the Navy to fix if they do not intend to
engage in further religious discrimination.
Furthermore, even if these harms were not considered ongoing, Plaintiffs contend that the
capable-of-repetition-yet-evading review exception to mootness would apply. The Navy disagrees.
The Navy appears to acknowledge that attorneys’ fees is also an outstanding issue, Dkt. 254 at 21,
though the parties agree that a claim for attorneys’ fees does not render an otherwise moot case
justiciable (at least on any other issue than the fees).
I.
Ongoing harm to the Class Members
Plaintiffs have always contended that their primary harm was from the lack of a proper
religious accommodation process, rather than just the COVID-19 mandate itself. See Dkt. 81 at
15-18. The continued existence of the Navy’s legally flawed process, however, persists regardless
of the mandate’s rescission. Even if the Navy has discontinued use of its 50-step SOP, see Dkt.
227 at 18, the Navy’s pre-existing policies and process permitted the SOP to be used, as the Navy
has always defended the SOP as compliant with federal law and its own policies. Thus, as Plaintiffs

1 Defendants also briefed the issue of damages, which Plaintiffs raised in the original suggestion of
mootness briefing. Plaintiffs did not include that issue in their previous supplemental brief because they no
longer intend to pursue that argument.
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have pointed out, the problems with the Navy’s process that came to light due to the pandemic still
exist:
• The Navy’s religious accommodation process permits the Navy to sit on requests
for accommodation indefinitely, as the Navy did during the Mandate.

• As illustrated during the Mandate, the Navy’s religious accommodation process
permits the Navy to forego individualized assessment and use standardized policy
memos (even if outdated) to satisfy the compelling interest requirement. It also
allows boilerplate statements to suffice for demonstrating that the Navy’s action is
the least restrictive means.

• As we saw during the Mandate, the Navy’s religious accommodation process
permits the Navy to discriminate against sailors who submit a request and to apply
coercive tactics to pressure the servicemember to forego their beliefs.2 The Navy
still insists these discriminatory actions, exhaustively documented in this case, are
not “adverse.” Dkt. 223 at 102 (claiming that no plaintiff was the subject of
“adverse action”); see also Dkt. 254 at 17.

• The Navy’s religious accommodation process permits Navy leadership to dictate
denial of all requests, as it did during the Mandate, no matter the individual
circumstances of the requester and current conditions/facts. The Navy denies that
this happened, see Dkt. 227 at 18, but the facts show otherwise, given that religious
accommodation requests were denied basically across the board. See, e.g.,
Supplemental Authority, U.S. Navy SEALS 1-24 v. Biden, Nos. 22-10077 and 22-
10534, Doc. 247 (5th Cir. filed Dec. 5, 2022) (lengthy approval memorandum from
Commander of NSW Reserve Component detailing illegality of process and
conducting individualized assessment); Supplemental Authority, id., Doc. 215 (5th
Cir. filed Sept. 13, 2022) (DoD Inspector General letter to Defendant Austin
informing him of problems with religious accommodation process).

• The Navy’s religious accommodation process permits coercion and retaliation
against commanding officers who recommend approval of service member requests
despite the chain of command’s desire that requests be denied.

• The Navy’s religious accommodation process does not permit a requester to
resubmit a previously denied request, or update/resubmit a pending request, based
on changes to the requester’s job, location, or circumstances relevant to the request.
(The Navy’s policies previously allowed this but were changed during the Mandate

2 Notably, the Army requires that servicemembers requesting religious accommodation be treated as
compliant with the policy while their request is pending and prohibits adverse action against
servicemembers with pending requests. Dkt. 118 at 38, 42, 52. This would not be difficult for the Navy to
implement if it wished to avoid religious discrimination and coercion.
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period, see Dkt. 134 at 108, 135-36, and the Navy has not indicated that they intend
to reinstate this policy.)
For seven years before the COVID-19 Vaccination Mandate (and the 50-step SOP), the Navy had
not granted any requests for religious accommodation related to vaccine requirements. Dkt. 84 at
9. Thus, the problems with the Navy’s religious accommodation process both pre-date the Mandate
and continue to exist independent of the SOP.
The persistence of this illegal process injures the Class Members because they have sincere
religious beliefs that sometimes impact issues related to their service and lack the required avenue
to seek accommodation for those beliefs. Some Class Members continue to have similar religious
concerns about mandatory vaccinations other than the COVID-19 vaccine and still have pending
requests.3 And because the process permitted the Navy to discriminate against the Class Members,
it is likely that they will be hesitant to use that process in the future, resulting in many Class
Members choosing to forego their religious beliefs because they believe they will not be
accommodated. That provides continued standing for prospective relief. Cf. State of Missouri v.
Biden, No. 23-30445, 2023 WL 5821788, at *8 (5th Cir. Sept. 8, 2023) (finding injury to plaintiffs
persisted because of self-censorship and their continued use of social media even though social
media companies had discontinued their COVID-19 related “misinformation” policies).  This
chilling effect is documented in this case. Some Class Members chose to not assert their beliefs
any longer and accept involuntary separation because of the Navy’s terrible treatment. See Dkt.
178 at 14-50.

3 See id. at ¶ 4 (“Navy service members who submitted requests or appeals seeking relief from other
mandatory vaccinations along with a COVID-19 vaccine request that have not been adjudicated will be
contacted individually. . .” (emphasis added)).
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Further, as Plaintiffs already explained, many Class Members missed opportunities to
promote, train, and fulfill milestone positions necessary to earn promotions because they requested
accommodation of their sincere religious beliefs during the Mandate, causing continuing harm to
their careers because of this unlawful religious discrimination. The Navy has never stated in any
post-repeal policy that they intend to rectify this harm caused by their illegal policies and religious
discrimination. And as their response makes clear, they continue to insist that because no Class
Member was involuntarily separated, they suffered no “adverse action,” Dkt. 254 at 17, even
though the Fifth Circuit recognized the Navy’s discriminatory treatment of the Class Members as
“adverse actions.”  U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336, 343 (5th Cir. 2022); see also id.
at 342–44. Thus, the Navy refuses to even acknowledge this ongoing harm to the Class Members.
And this harm can be remedied through means short of requiring the Navy to give any Class
Member a promotion. Cf. Jackson v. Mayorkas, No. 4:22-CV-0825-P, 2023 WL 5311482, at *4
(N.D. Tex. Aug. 17, 2023) (rejecting argument that missed opportunities provided basis for further
relief because the Court could not interfere with military promotional decisions, but not
considering options for relief falling short of that). For instance, the Court could order the Navy to
allow any Navy Class Members who were eligible to take promotion exams but were not permitted
to because of the Mandate and the Navy’s related policies to take the exam, hold special promotion
boards for any Navy Class Members who were denied promotion or had their boards cancelled
because of the Mandate and the Navy’s related policies, redo any evaluations that were negative
because of submission of a request for religious accommodation and resulting noncompliance with
the Mandate, and/or reestablish the pre-Mandate promotion ratings for all enlisted Navy Class
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Members. None of those things require Defendants to make a promotional decision but would
address harm Class Members continue to suffer because of the Navy’s discriminatory treatment.4
Defendants’ claim that no “new” adverse action will be taken against Plaintiffs, Dkt. 254
at 17, is of little comfort, given that Defendants define “adverse action” as involuntary separation.
As Plaintiffs pointed out, even if vaccination status shall no longer “be a consideration in assessing
individual Service member suitability for deployment or other operational assignments,”5 there is
no policy stating that vaccination status cannot be considered in promotions and non-operational
assignments, which allows for continued discrimination. Even if the Court believes it improper to
interfere with military promotion decisions, RFRA would surely not permit the military to
implement a policy making promotion contingent upon religious beliefs, such as a policy denying
promotions to all observant Muslims, for example.6 The discriminatory treatment of Plaintiffs and
evident religious animus displayed by commanding officers during the mandate period shows that
it is likely that these servicemembers will likely continue to be discriminated against because of
their religiously based refusal to be vaccinated. See Navy Seals 1-26, 27 F.4th at 344 (commanding
officers were coercing EOD 1 into receiving the vaccine and asked him, “with [his] religious
beliefs, if [he] thought that martyrs would be remembered.”); id. at 352 n. 22 (noting that “some

4 As noted above, Plaintiffs here have always contended that the primary harm to the Plaintiffs was the
Navy’s flawed religious accommodation process and did not directly challenge the existence of a COVID-
19 vaccine mandate itself. See Dkt. 81 at 15-18. But in the alternative, these ongoing harms could at least
be considered collateral consequences, which provides an exception to the mootness doctrine where the
primary harm to the plaintiff has ceased but the challenged conduct continues to cause harm the Court can
remedy. See Mendoza-Flores v. Rosen, 983 F.3d 845, 848 (5th Cir. 2020); Jackson, 2023 WL 5311482, at
*3 (N.D. Tex. Aug. 17, 2023).
5 NAVADMIN 065/23, ¶ 3, https://www.mynavyhr.navy.mil/Portals/55/Messages/NAVADMIN/
NAV2023/NAV23065.txt?ver=5D-VSbRc-Pt_Qjy8WecHeQ%3d%3d.
6 In fact, the EEOC just brought a lawsuit alleging that a furniture store violated Title VII when it fired a
store manager for requesting religious accommodation based on their policy of termination for failing to
comply with a mandatory COVID-19 vaccination policy for any reason. U.S. Equal Employment
Opportunity Comm’n, EEOC Sues Hank’s Furniture for Religious Discrimination, Sept. 19, 2023,
https://www.eeoc.gov/newsroom/eeoc-sues-hanks-furniture-religious-discrimination.
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of the remarks uttered by superior officers to Plaintiffs could be regarded as outright hostile to
their desire for religious accommodations.”).
The Navy’s narrow definition of “adverse action” also precludes resolution of the issue of
negative notations in Class Members’ service records or files. Plaintiffs believe there are still
negative notations in Class Members’ files and the Navy still has not provided confirmation that
the review process for what they narrowly define as “adverse action” is over.
The court in Bazzrea v. Mayorkas, No. 3:22-CV-265, 2023 WL 3958912, at *2 (S.D. Tex.
June 12, 2023) noted that the Coast Guard implemented remedies like some of those Plaintiffs
suggest above. The Coast Guard does not consider “the refusal of the COVID-19 vaccination alone
[to] require the withholding of advancement” for enlisted members,” “encourages members whose
advancement was previously withheld should compete in 2023 advancement panels,” and
“requires commanding officers to amend any previous recommendations against advancement
based solely on refusal to be vaccinated.” 2023 WL 3958912, at *2. This is all far more than the
Navy has done and these things (along with bringing the religious accommodation process into
compliance with the law) shouldn’t be difficult to agree on if the Navy has no future intentions to
discriminate.
II.
Capable of Repetition Yet Evading Review
Even if no further harm to Plaintiffs were occurring, Defendants’ challenged conduct is
capable of repetition yet evades review. Fed. Election Comm’n v. Wisc. Right to Life, Inc., 551
U.S. 449, 462 (2007). The Fifth Circuit expressly declined to rule on whether this exception would
apply, as Defendants admit. Dkt. 254 at 22.
As Plaintiffs have already briefed, to fall within this exception to the mootness doctrine,
Plaintiffs must show “(1) the challenged action was in its duration too short to be fully litigated
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prior to its cessation or expiration, and (2) there was a reasonable expectation that the same
complaining party would be subjected to the same action again.” Cath. Leadership Coal. of Texas
v. Reisman, 764 F.3d 409, 422 (5th Cir. 2014). Defendants contend that the exception does not
apply here because this case does not meet the “duration requirement.” Dkt. 254 at 23. Defendants
claim that a military vaccination requirement does not inevitably expire and constrain judicial
review. Id. But the vaccination requirement at issue here did, and it did so because of the changing
nature of the virus, which prompted Congress to order Defendants to rescind the DoD mandate
from August 2021. Defendants cannot deny that guidance and restrictions related to COVID-19
evolved and changed frequently. Plaintiffs are also unaware of any attempt by Defendants to add
the COVID-19 vaccination as a permanent part of its mandatory vaccinations, so it was treated by
Defendants as different from other vaccinations. And with respect to Plaintiffs’ contention that the
Navy’s religious accommodation process violates the First Amendment and RFRA, the Navy
unilaterally closed those requests before most could be fully adjudicated (which was not required
by the FY 2023 NDAA), meaning that the Navy could singlehandedly deny judicial review of
pending requests simply by closing requests before an opinion can issue, as it did here.
When analyzing the second element, courts are concerned with whether the conduct was
“capable of repetition and not . . . whether the claimant had demonstrated that a reoccurrence of
the dispute was more probable than not.” Honig v. Doe, 484 U.S. 305, 318 n. 6 (1988). Plaintiffs
need not demonstrate with “mathematical precision” that they will be subject to the same illegal
conduct; rather, they just need to show “a reasonable expectation” that the challenged action will
reoccur. Id. In the context of election statutes, the Fifth Circuit has held that “even if it were
doubtful” that the plaintiff would again be affected by the allegedly offending election statute,
“precedent suggest[ed] that [the] case [was] not moot, because other individuals certainly [would]
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be affected by the continuing existence” of the statute. Moore v. Hosemann, 591 F.3d 741, 744
(5th Cir. 2009). The continued existence of the Navy’s illegal religious accommodation process,
which applies regardless of a COVID-19 vaccination mandate, and the Navy’s continued defense
of it, is “evidence showing that the [Defendants’] actions reflect a policy or consistent pattern of
behavior that [they] ha[ve] determined to continue.” Libertarian Party v. Dardenne, 595 F.3d 215,
218 (5th Cir. 2010). The fact that even before the COVID-19 Vaccination Mandate, the Navy had
granted zero religious accommodation requests related to vaccination in the previous seven years
according to their policies and process also indicates that the Navy “unlawfully [acted] in the past.”
Id. Either of these showings are enough to satisfy Plaintiffs’ burden under the second prong. Id.7
Given that the NDAA admittedly permits the Navy to reinstitute a mandate at any time,
that health authorities are growing concerned over new circulating variants of COVID-19, the
White House recently requested funding for a new, effective COVID-19 vaccination that
“everyone should get,” and the President has been wearing masks again, the idea that Plaintiffs
could be subject to the same requirement again in the future is reasonable.8 Defendants cite
Bongiovanni v. Austin, No. 3:22-CV-580-MMH-MCR, 2023 WL 4352445, at *10 (M.D. Fla. July
5, 2023) for the proposition that this is unreasonable. But that court also believed that the FY 2023

7 The Navy appears to believe it significant that some of the Class Members and one out of four Named
Plaintiffs (SEAL 3) have retired. But in a “case such as this, in which, as in Dunn [v. Blumstein, 405 U.S.
330 (1972)], the issue sought to be litigated escapes full appellate review at the behest of any single
challenger, does not inexorably become moot by the intervening resolution of the controversy as to the
named plaintiffs.” Sosna v. Iowa, 419 U.S. 393, 401 (1975).
8 See Suresh V. Kuchipudi, Why public health experts are concerned about BA.2.86, the latest COVID-19
variant, PBS News Hour (Sept. 12, 2023), https://www.pbs.org/newshour/health/why-public-health-
experts-are-concerned-about-ba-2-86-the-latest-covid-19-variant; Justin Gomez and Molly Nagle, Biden
tests negative for COVID, will wear mask when close to others, White House says, ABC News (Sept. 5,
2023),
https://abcnews.go.com/Politics/biden-tests-negative-covid-wear-mask-close-white/story?id=
102935772; Associated Press, Biden says he will request more funding for a new coronavirus vaccine, NBC
News (Aug. 25, 2023), https://www.nbcnews.com/politics/white-house/biden-says-will-request-funding-
new-covid-vaccine-rcna101919.
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NDAA prohibited Defendants from reinstating a mandate, which is not the case according to the
plain text of the statute. Id. Bongiovanni also apparently looked only at the Mandate and not the
continued existence of a flawed religious accommodation process. Id. In fact, some of the cases
cited by Defendants do not involve requests for religious accommodation at all, and none involve
discussion of a continued illegal religious accommodation process. See Robert v. Austin, 72 F.4th
1160, 1162 (10th Cir. 2023) (no religious accommodation requested); Wilson v. Austin, No. 4:22-
CV-438, 2023 WL 5674114, at *1 (E.D. Tex. Sept. 1, 2023) (noting only that the plaintiffs “applied
for some sort of accommodation” and failing to consider the Navy’s religious accommodation
process); Coker v. Austin, No. 3:21-CV-1211-AW-HTC, 2023 WL 5625486, at *1 (N.D. Fla. Aug.
25, 2023) (noting only that the plaintiffs “sought an exemption from the mandate” and failing to
consider the Navy’s religious accommodation process); Jackson, 2023 WL 5311482, at *1
(involving plaintiffs who sought religious accommodation, but in the Coast Guard, and not
discussing any persisting problematic religious accommodation policy or practice); Crocker v.
Austin, No. CV 22-0757, 2023 WL 4143224, at *1 (W.D. La. June 22, 2023) (involving plaintiffs
who sought religious accommodation, but in the Air Force, and not discussing any persisting
problematic religious accommodation policy or practice); Bazzrea, 2023 WL 3958912, at *2
(involving plaintiffs who sought religious accommodation, but in the Coast Guard, and not
discussing any persisting problematic religious accommodation policy or practice).
CONCLUSION

For the foregoing reasons, this Court should find that the case is not moot.

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Respectfully submitted this 19th day of September, 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
DANIELLE A. RUNYAN
   Texas Bar No. 24134548
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
drunyan@firstliberty.org
hrandall@firstliberty.org

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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CERTIFICATE OF SERVICE

I hereby certify that on September 19, 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

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