Court Filing, Doc. 295 — U.S. Navy Seals 1 26 v. Biden

Summary

Captain Gary Blumberg, USN, a Navy class member subject to the Navy's COVID-19 vaccine mandate, filed these objections to the proposed class settlement in U.S. Navy SEALs 1-26 v. Biden, Case No. 4:21-cv-01236 (N.D. Tex.), filed 07/16/24 as Document 295, and asks the Court to deny approval. The objections target the undefined terms "adverse" and "negative," the word "solely" in paragraphs I.C.17, I.C.18 and I.C.19, which the objector says would leave mandate-related entries in personnel records, and the term "refusal," among other points.

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Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 1 of 14   PageID 8293
UNITED STATES DISTRICT COURT. — 55.55
NORTH DISTRICT OF TEXAS | wor enn

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Cr COuy
HED Ok Via

U.S. Navy SEALs 1-26 ) : | i 16 6 204 |
) | CLERK, US. DISTR iT COURT
Plaintiffs, ) | By MAI
) Case No. 4:21-cv-01236
Biden )
Defendants. )
Objections to Proposed Class Settlement
l. 1 am a United States Navy Sailor and a Class member who was

subject to the Navy’s COVID-19 Vaccine Mandate. I submitted a Religious
Accommodation Request (RAR) request and was blatantly and flagrantly
discriminated against by the U.S. Navy. This abhorrent discrimination resulted in a
federal class action lawsuit entitled U.S. Navy SEALs 1-26 v. Biden, 4:21-cv-
01236 (N.D. Tex.).

2. The NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
AND HEARING TO APPROVE PROPOSED SETTLEMENT — and
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS that were
provided to Class members differ significantly, which disparages the rights of the
Class members. The NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
AND HEARING TO APPROVE PROPOSED SETTLEMENT states, “If you are

not satisfied with the Settlement, you can ask the Court to deny approval for the
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 2 of 14   PageID 8294
Settlement.” As a Class member, I am extremely dissatisfied with the proposed
Settlement Agreement and I am formally requesting the Court to deny approval of
the proposed Settlement Agreement.

3. I object to the lack of fairness, reasonableness, and adequacy of the
proposed class action Settlement Agreement on numerous points. These points
apply to the entire Class.

4. I object to the proposed Settlement Agreement paragraph I.B.16.a
because the proposed definition does not define “adverse” or “negative.” A Class
member who received a “promotable” promotion recommendation and a “3.0” trait
average is not considered adverse or negative by U.S. Navy standards per
BUPERSINST 1610.10F. However, from a U.S. Navy selection board perspective,
this record is considered very adverse and the Class members who did nothing
wrong will not be selected for promotion. The proposed Settlement Agreement is
inadequate, unfair and complete theater. Class members think they would receive
proper settlement. In reality, the U.S. Navy would continue to harm Class members
because the U.S, Navy gets to define “negative” and “adverse.” This objection
applies to the entire Class.

5. I object to the word “solely” in the proposed Settlement Agreement
paragraphs I.C.17, 1.C.18, and I.C.19 because as written the proposed Settlement

Agreement is unfair and unreasonable. This objection applies to the entire Class.
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 3 of 14   PageID 8295
The U.S. Navy will use the word “solely” to drive a truck through this proposed
Settlement Agreement and continue the harm to Class members. The U.S. Navy
has already demonstrated a propensity to harm Class members. It is the U.S.
Navy’s own policies that mixed violations of other policies and non-compliance
with the COVID-19 Vaccine Mandate in personnel records. Now this proposed
Settlement Agreement tries to separate the combined violations and let the U.S.
Navy make the decision. Because of the word “solely,” if 99% of the separation
processing and proceedings, formal counselings, non-judicial punishments, or
reenlistment codes from a Class member’s personnel record is based on non-
compliance with the COVID-19 Vaccine Mandate and 1% is due to violations of
other policies, the separation processing and proceedings, formal counselings, non-
judicial punishments, or reenlistment codes will remain in the Class member’s
personnel record. Because of the word “solely,” it is pure theater that these
paragraphs will provide relief to Class members as these paragraphs are currently
written.

6. The Department of the Navy (DON) announced the correction to
records of 15 Sailors formerly assigned to USS Philadelphia (CL-41) (commonly

referred to as the ‘Philadelphia 15’) in a ceremony at the Pentagon on June 16,
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 4 of 14   PageID 8296
2023'. The ‘Philadelphia 15’ were fifteen African-American Sailors assigned to
USS Philadelphia who, in October 1940, authored a letter published in the
Pittsburgh Courier describing the racial discrimination, abuse, and inability to
advance into other, higher-ranking positions. “The record contained evidence that
suggested the race of these sailors may have been a factor that impermissibly
motivated some of the decisions made by the Navy regarding these sailors,” said
Bobby Hogue, Principal Deputy ASN M&RA. “That was enough for me to initiate
the case.” I am proud the U.S. Navy corrected the records of the Philadelphia 15.
However, the corrections to the ‘Philadelphia 15° personnel records were made
based on the premise “that suggested the race of these sailors may have been a
factor,” which is a different premise than “solely.” U.S. Navy SEALs 1-26 v.
Biden was initiated when the U.S. Navy treated Sailors who submitted a RAR
differently than those Sailors who submitted a medical accommodation request
from the identical requirement. The Philadelphia 15 had to spend zero dollars,
zero years litigating in court, and their personnel records were corrected
automatically by the U.S. Navy without a court order because U.S. Navy “may
have” mistreated the Philadelphia 15 and the evidence “suggested” a correction to
personnel records was warranted. Now, the proposed Settlement Agreement for

U.S. Navy SEALs 1-26 v. Biden proposes to terminate the litigation with Class

; https://www.navy.mil/Press-Office/News-Stories/Article/3431616/the-department-of-the-navy-announces-
correction-to-records-of-the-philadelphia/
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 5 of 14   PageID 8297
members who exercised their Constitutional rights serving in the same U.S. Navy
as the Philadelphia 15 under the nearly the same U.S. Constitution’ as the
Philadelphia 15. Class counsel had to spend $1,500,000, while Class members had
to endure almost three years in litigation, accept the U.S. Navy’s refusal to reach a
settlement during arbitration twice, only to have the possibility of having the
personnel records reviewed if the record reaches a legal threshold of “solely,” and
only thru a court order. The U.S. Navy is not performing any actions for Class
members automatically as it did for the Philadelphia 15. The proposed Settlement
Agreement for U.S. Navy SEALs 1-26 v. Biden terminates exactly as it began:
with the U.S. Navy treating those Sailors who submitted a RAR differently than
other Sailors. Additionally, there is no hope for correcting the personnel records of
those Sailors who are not Class members, but endured the same discrimination. I
object to the proposed Settlement Agreement because it is unfair, unreasonable,
and inadequate. This objection applies to the entire Class. I request the personnel
records of Class members be treated equally as the Philadelphia 15. The U.S. Navy
has already demonstrated precedence.

7. I object to the term “refusal” in the proposed Settlement Agreement
paragraph I.C.19. I object to being called a “refuser” or even implying that I am a

refuser. Those who followed the U.S Navy’s policies are not refusers and yet were

* Several U.S. Constitutional amendments were ratified after 1940.
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 6 of 14   PageID 8298
punished for doing so. I find the use of this word derogatory, demeaning, and
disrespectful. As a victim of unlawful discrimination, I stand with Ms. Rosa Parks
and am comforted in her example while following in her footsteps. Ms. Parks was
an American citizen sitting in her racially segregated and publicly posted assigned
seat on a public bus in Montgomery, Alabama. A uniformed officer approached
Ms. Parks and ordered her to move to a different bus seat. Similarly, a uniformed
officer approached Class members and ordered them to comply with the Navy’s
COVID-19 Vaccine Mandate. Ms. Parks’ accommodation to remain in her seat
was rejected by the uniformed officer. Similarly, RARs submitted by Class
members were rejected by uniformed officers. Ms. Parks’ appeal was rejected.
Similarly, the appeals of many Class members were rejected. Is it appropriate to
call the victim of discrimination, Ms. Rosa Parks, a refuser? Yet, that is exactly
what this proposed Settlement Agreement does to Class members. Today, we call
Ms. Rosa Parks a hero for standing against discrimination and Class members
should be called heroes for standing against discrimination. | am a United States
Sailor and I will support and defend the Constitution of the United States of
America. I object to the proposed Settlement Agreement paragraph 1.C.19 because
it is unreasonable, dehumanizing, derogatory, demeaning, and disrespectful. This

objection applies to the entire Class.
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 7 of 14   PageID 8299
8. I request the proposed Settlement Agreement paragraph I.C.19 be
revised to the following: ... The exact content of the language is within the
discretion of the U.S. Navy but shall provide that the boards must not consider any
adverse information in cases in which a COVID-19 religious accommodation was
requested.

9. I have no objection in the proposed Settlement Agreement to applying
either the words “refusal” or “refuser” to the U.S. Navy. In my opinion, it is the
U.S. Navy who refused to follow their own instructions and policies. It is the U.S.
Navy who refused to approve RARs. It is the U.S. Navy who refused to follow
federal law. It is the U.S. Navy who refused to honor the Constitutional rights of
the Class members. This case has demonstrated that the U.S. Navy did not grant a
religious exemption to any vaccine in recent memory, but merely rubber stamped
each denial. Prior to this case, the U.S. Navy did not grant a religious exemption to
any vaccine requirement.

10. I object to the proposed Settlement Agreement paragraph I.C.21
because it is inadequate and unfair. This objection applies to the entire Class.
Chapter 1, paragraph 5.e of OPNAVINST 5354.1H states, “Develop, disseminate
and enforce harassment prevention and MEO policy statement(s) which must
include expectations regarding EO and procedural compliance.” Every U.S. Navy

Commander and Commanding Officer is required to develop and disseminate
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 8 of 14   PageID 8300
Military Equal Opportunity (MEO) policy statements which include expectations
regarding procedural compliance. I request the proposed Settlement Agreement
paragraph I.C.21 be revised to the following: Defendants agree that the U.S. Navy
will post the following information on its public website within six months of the
Effective Date of this Agreement and include the following in its Military Equal
Opportunity (MEO) policy statements publicly displayed in all U.S. Navy
commands: ...

11. The proposed Settlement Agreement paragraph I.C.17 discusses
“personnel records” and did not address security clearance records. I object to the
inadequacy of the proposed Settlement Agreement and this objection applies to the
entire Class. I request the proposed Settlement Agreement include the following
additional agreement to correct security clearance records of Class Members’:
Defendants agree to review the security clearance records of all Class Members to
ensure that the U.S. Navy has permanently removed security clearance records
indicating security clearance denials and revocations taken against the Class
Members on the basis of non-compliance with the COVID-19 Vaccine Mandate

and adverse information related to non-compliance with the COVID-19 Vaccine

* Standard Form 86 asks the following questions as a part of security clearance investigation request: Section 13A -
Employment Activities. For this employment, in the last seven (7) years have you received a written warning, been
officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as a violation of security
policy? Yes: { } No: {}. Section 28 - Non-Criminal Court Actions. In the last ten (10) years, have you been a party to
any public record civil court action not listed elsewhere on this form?
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 9 of 14   PageID 8301
Mandate. It is the policy of the Secretary of the Navy that Military members who
were denied or revoked a favorable national security eligibility determination will
be afforded due process*. The U.S Navy agrees to complete this review within nine
months of the Effective Date of this Agreement and agrees to notify Class Counsel
when this review is complete.

12. The proposed Settlement Agreement paragraph I.C.23 is inadequate
because it does not specify if the training will be mandatory. I object because the
training should be mandatory. This objection applies to the entire Class. This case
has demonstrated a ten year history of discriminatory RAR denials committed by
the U.S. Navy. If this training is not mandatory, then this proposed settlement is in
vain, fruitless, and complete theater.

13. I object to the inadequacy of the proposed Settlement Agreement and
this objection applies to a specific subset of the Class, specifically officers. Officer
Class members who were not selected for promotion were treated in an unfair
manner and not selected because the U.S. Navy marked their record with a Field
Code. I request the proposed Settlement Agreement include the following
additional agreement: Defendants agree that the U.S. Navy will convene Special
Selection Boards? for officer, active and reserve members of this Class who were

passed over for selection. Special Selection Boards will occur within twelve

* Enclosure (8), paragraph 2.e(3) of SECNAVINST 5510.30C.
. https://www.mynavyhr.navy.mil/Career-Management/Boards/Special-Boards/Officer-Special-Boards/
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 10 of 14   PageID 8302
months of the Effective Date of this Agreement and the results will be made
publicly available, the results provided to Class Counsel, and the results provided
to this court.

14. Enclosure (2), paragraph 2 of SECNAVINST 1402.1 states, “Special
Selection Board (SSB). A selection board of eligible commissioned officers
convened by the SECNAV pursuant to sections 628 or 14502 of reference (a), or
warrant officers pursuant to section 12242 of reference (a) and reference (b), to
consider officers who were either eligible but not considered by a regularly
scheduled Promotion Selection Board (PSB) due to administrative error or who

were considered in an unfair manner and not selected.” [emphasis added]

15. I object to the inadequacy of the proposed Settlement Agreement and
this objection applies to a specific subset of the Class, specifically enlisted.
Enlisted Class members who were not selected for promotion were treated in an
unfair manner and not selected because the U.S. Navy marked their record with a
Field Code. I request the proposed Settlement Agreement include the following
additional agreement: Defendants agree that the U.S. Navy will convene Special
Selection Boards’ for enlisted, active and reserve members of this Class who were
passed over for selection. Special Selection Boards will occur within twelve

months of the Effective Date of this Agreement and the results will be made

6 https://www.mynavyhr.navy.mil/Career-Management/Boards/Special-Boards/Enlisted-Special-Boards/
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 11 of 14   PageID 8303
publicly available, the results provided to Class Counsel, and the results provided
to this court.

16. I request the proposed Settlement Agreement review the records of
Class members who graduated from the United States Naval Academy (USNA)
Midshipmen or any other Midshipmen from other commissioning sources such as
_ the Reserve Officer Training Corps. There are numerous publicly available reports
that Midshipmen were denied diplomas due to discriminatory denials of RARs’,*,”,
I object to the inadequacy of the proposed Settlement Agreement and this objection
applies to a specific subset of the Class.

17. The proposed Settlement Agreement provides no compensation to
Class members. I am not requesting compensation, because the United States of
America was not established on compensating members for fighting injustice. The
fifty-six signers of the Declaration of Independence relied on “a firm reliance on
the protection of the Divine Providence, we mutually pledge to each other our
Lives, our Fortunes and our sacred Honor.” They valued religious liberty and

relied upon their religious convictions to guide them, pledging their lives, fortunes,

and sacred honor. Why are Class members prevented from relying on our deeply

, https://steube.house.gov/in-the-news/naval-academy-confirms-it-denied-all-religious-vax-exemption-requests/
° https://nypost.com/2022/11/30/republicans-demand-naval-academy-transparency-after-unvaxxed-midshipmen-
allegedly-denied-diplomas/

° https://www.foxnews.com/media/naval-academy-sparks-fury-allegedly-denying-diplomas-unvaccinated-
midshipmen-absolutely-atrocious
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 12 of 14   PageID 8304
held religious beliefs to guide us? Why are Class members punished and
discriminated against for following our deeply held religious beliefs?

18. Let me be clear. I did nothing wrong just like Ms. Rosa Parks did
nothing wrong. Yet, we celebrate Ms. Rosa Parks’ achievements with a postage
stamp, a Congressional Gold Medal, a museum, and many other honors. I am not
asking for these honors, but | still stand with Rosa Parks. The proposed class action
Settlement Agreement is unfair, unreasonable, and inadequate on numerous points.

19. This case has already exposed several sham processes by the U.S.
Navy. Do not let this proposed Settlement Agreement become another statistic.
This proposed Settlement Agreement will be treated as theater in the eyes of the
U.S. Navy and class members will continue to be harmed. No organization is
above the law including the U.S. Navy.

20. With this written objection, I have attempted to comply with the
provisions in both the NOTICE OF PROPOSED CLASS ACTION
SETTLEMENT AND HEARING TO APPROVE PROPOSED SETTLEMENT
and SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS In U.S.
Navy SEALS 1-26 v. Biden, 4:21-cv-01236 (N.D. Tex.) even though the
documents differ significantly in the provisions for filing a written objection. If my
written objection fails to meet a minute detail of either document, I request that my

rights not be forfeited and my objections be brought before the Court.
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 13 of 14   PageID 8305
21. 1 am undecided whether I as a Class Member will appear at the
Fairness Hearing.

22. I, Captain Gary Blumberg, USN, am over the age of eighteen years. If
called upon to testify, I would and could do so competently. I declare under
penalty of perjury, under the laws of the United States, that the foregoing
statements are true and correct to the best of my knowledge. The views expressed
in this content are those of the author and do not reflect the official policy,

position, or endorsement of the Department of Defense or the U.S. Government.
Case 4:21-cv-01236-O   Document 295   Filed 07/16/24    Page 14 of 14   PageID 8306
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