Exhibit C: Settlement Appendix from U.S. Navy SEALs 1–26 v. Austin (N.D. Tex.) — Case 5:22-cv-00009-TES

Summary

Document 136-3, filed August 16, 2024 in Case 5:22-cv-00009-TES, is Exhibit C: a copy of Document 281, filed June 11, 2024 in U.S. Navy SEALs 1–26, et al. v. Lloyd J. Austin, III, et al., Civil Action No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas. Document 281 is an appendix in support of an unopposed motion to amend the class definition for settlement purposes, preliminarily approve the class action settlement, approve notice and set a fairness hearing. It lists Exhibit 1, the settlement agreement; Exhibits 1-A, 1-B and 1-C, a proposed preliminary approval order, class notice and joint stipulation of dismissal; and Exhibit 2, a declaration of class counsel Heather G. Hacker. The agreement recounts the litigation over the rescinded COVID-19 vaccination requirement, and the declaration calls the $1.5 million fee reasonable.

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Case 5:22-cv-00009-TES Document 136-3 Filed 08/16/24 Page 1 of 42

Exhibit C
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1–26, et al., §
§
Plaintiffs, §
§
v. § Civil Action No. 4:21-cv-01236-O
§
LLOYD J. AUSTIN, III, et al., §
§
Defendants. §
§

APPENDIX IN SUPPORT OF UNOPPOSED MOTION TO AMEND THE
CLASS DEFINITION FOR SETTLEMENT PURPOSES, TO
PRELIMINARILY APPROVE THE CLASS ACTION SETTLEMENT, TO
APPROVE THE FORM AND MANNER OF NOTICE AND TO SET A DATE
FOR A FAIRNESS HEARING

EX. NO DESCRIPTION Appendix Pages
1 Settlement Agreement APPX.0002

1-A Proposed Order Granting Preliminary Approval APPX.0024

1-B Proposed Class Notice APPX.0028

1-C Joint Stipulation of Dismissal APPX.0034

2 Declaration of Heather G. Hacker in Support of APPX.0038
Unopposed Motion to Amend the Class
Definition for Settlement Purposes, to
Preliminarily Approve the Class Action
Settlement, to Approve the Form and Manner of
Notice, and to Set a Date for a Fairness Hearing
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EXHIBIT
1

APPX.0001
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SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS In U.S. Navy
SEALS 1-26 v. Biden, 4:22-cv-01236-O (N.D. Tex.)

In the civil action captioned U.S. Navy SEALS 1-26 v. Biden, 4:22-cv-01236-O (N.D. Tex.)

(“the Civil Action”), Plaintiffs—Navy service members who submitted a religious accommodation

request concerning the now rescinded Department of Defense (“DoD”) COVID-19 vaccination

requirement—allege that the rescinded COVID-19 vaccination requirement, the Navy’s policies

implementing that requirement, and the Navy’s policies and practices concerning religious

accommodation requests violate their rights under the Religious Freedom Restoration Act (RFRA)

and the First Amendment of the Constitution. In the interest of resolving all claims in the Civil

Action without the expense, delay, and inconvenience of further litigation of the issues raised in

the Civil Action, and in reliance upon the representations, mutual promises, covenants, and

obligations set out in this Settlement Agreement (“Agreement”), and for good cause and valuable

consideration also set out in this Settlement Agreement, the parties, through their undersigned

counsel of record, hereby stipulate and agree as follows:

I. GENERAL PROVISIONS

A. Recitals

1. On November 9, 2022, Plaintiffs filed a Complaint alleging that the DoD’s COVID-19

vaccination requirement and the Navy’s policies implementing that requirement violated RFRA,

the First Amendment, and the Administrative Procedure Act (APA). Dkt. No. 1.

2. On January 3, 2022, Plaintiffs were granted a preliminary injunction enjoining Defendants

from “applying MANMED § 15-105([4])(n)(9); NAVADMIN 225/21; Trident Order #12; and

NAVADMIN 256/21 to Plaintiffs. Defendants [were] also enjoined from taking any adverse

action against Plaintiffs on the basis of Plaintiffs’ requests for religious accommodation. Mot. 2-

3, ECF No. 15.” Dkt. 66 at 26.

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3. On January 24, 2022, Plaintiffs United States Navy SEALs 1-3 and United States Navy

Explosive Ordnance Disposal Technician, on behalf of themselves and all others similarly situated,

filed a First Amended Class Action Complaint against Defendants Secretary of Defense, Secretary

of the Navy, and the United States Department of Defense (collectively “Defendants”), again

alleging that the DoD’s COVID-19 vaccination requirement and the Navy’s policies implementing

that requirement violated RFRA and the First Amendment. Dkt. No. 84. Plaintiffs dropped their

APA claim and all claims against individual-capacity Defendants. Id.

4. On February 28, 2022, the Fifth Circuit denied Defendants’ emergency motion for a partial

stay of the preliminary injunction order. See U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336 (5th Cir.

2022); Dkt. 135.

4. On March 25, 2022, the Supreme Court of the United States partially stayed the district

court’s January 3, 2022 preliminary injunction “insofar as it preclude[d] the Navy from

considering [U.S. Navy SEALs 1-26, U.S. Navy Special Warfare Combatant Craft Crewmen 1-5,

U.S. Navy Explosive Ordnance Disposal Technician 1, and U.S. Navy Divers 1-3’s] vaccination

status in making deployment, assignment, and other operational decisions.” See Austin v. U.S.

Navy SEALs 1-26, 142 S. Ct. 1301 (2022); Dkt. 139.

5. On March 28, 2022, the district court granted, in part, Plaintiffs’ Motion For Class

Certification and granted Plaintiffs’ Motion for Class-Wide Preliminary Injunction enjoining

Defendants from “applying MANMED § 15-503([4])(n)(9); NAVADMIN 225/21; Trident Order

#12; and NAVADMIN 256/21 to members of the Navy Class and Subclasses.” Dkt. 140 at 27.

The district court immediately stayed its own injunction “insofar as it precludes the Navy from

considering [class members’] vaccination status in making deployment, assignment, and other

operational decisions.” Dkt. No. 140 at 27 (quoting U.S. Navy SEALs 1-26, 142 S. Ct. at 1301).

APPX.0003
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6. The district court defined the class and two subclasses as follows: (a) a class of all members

of the United States Navy who are subject to the Navy’s COVID-19 Vaccine Mandate and who

have submitted a Religious Accommodation request concerning the Navy’s COVID-19 Vaccine

Mandate (“Navy Class”); (b) a subclass of all members of the Navy Class who are assigned to

Naval Special Warfare or Naval Special Operations, who are subject to the Navy’s COVID-19

Vaccine Mandate, and who have submitted a Religious Accommodation request concerning the

Navy’s COVID-19 Vaccine Mandate (“Naval Special Warfare/Operations Subclass”); (c) a

subclass of all members of the Navy Class who are United States Navy SEALs, who are subject

to the Navy’s COVID-19 Vaccine Mandate, and who have submitted a Religious Accommodation

request concerning the Navy’s COVID-19 Vaccine Mandate (“Navy SEALs Subclass”). See Dkt.

No. 140 at 5-6.

7. Defendants appealed both preliminary injunction orders.

8. On December 23, 2022, during the pendency of the Civil Action and the appeals of the

preliminary injunctions and class certification order, the President signed the James M. Inhofe

National Defense Authorization Act for Fiscal Year 2023 (“NDAA”) into law. Section 525

directed the Secretary of Defense, within 30 days, to rescind the August 2021 memorandum

requiring vaccination of service members against COVID-19.

9. On January 10, 2023, the Secretary of Defense rescinded the mandate as directed. Dkt.

No. 214-1. The rescission memorandum directed that currently serving service members who

sought an exemption may not be “separated solely on the basis of their refusal to receive the

COVID-19 vaccination” and further directed the Services to “update the records of such

individuals to remove any adverse actions solely associated with denials of such requests.” Id.

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10. On January 11, 2023, the Navy cancelled its implementation of the August 2021

vaccination requirement.

11. On February 3, 2023, the Navy changed the language of MANMED § 15-105(4)(n)(9) to

remove any distinction between service members who are unvaccinated for religious reasons as

opposed to medical reasons to align with the practice previously described by the Force Medical

Officer of Naval Warfare Command.

12. On February 24, 2023, the Secretary of the Navy rescinded all COVID-19 vaccine

mandates directed by subordinate echelons of command within the Department of the Navy. The

Secretary further directed that all Sailors or Marines who previously submitted an accommodation

request or appeal solely for exemption from the COVID-19 vaccine will remain in service with no

adverse action related to their COVID-19 vaccine refusal.

13. In February 2023, the Navy permanently discontinued the use of the staffing procedure it

used to manage religious accommodation requests for the DoD COVID-19 vaccination

requirement cited by the district court when granting Plaintiffs’ Motion for Preliminary Injunction.

See Dkt. 66 at 4; Dkt. 227 at 3.

14. On July 6, 2023, the Fifth Circuit held that the Navy’s appeal of the two preliminary

injunctions orders were moot because the “vaccine policies challenged . . . ha[d] been rescinded

and . . . no exception to mootness applie[d].” U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 676

(5th Cir. 2023). The Fifth Circuit stated that the “default rule of mootness applie[d]” because the

Navy, “[o]beying a newly enacted federal statute, . . . rescinded its COVID-19 mandate. Then it

revoked each of the implementing policies addressed by the preliminary injunction.” Id. at 672.

15. On February 26, 2024, the district court granted in part and denied in part Defendant’s

Assertion of Mootness. Dkt. 262. The district court found that Plaintiffs’ claims for preliminary

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and permanent injunctive relief prohibiting Defendants from enforcing the COVID-19 vaccine

requirement are moot due to recission of the challenged conduct. Id. at 18. But the district court

found that Plaintiffs’ claims for relief arising out of a broader religious accommodations policy

may continue. Id.

B. Definitions

16. The defined terms set forth below, and as otherwise defined herein, will have the meanings

ascribed to them for the purposes of this Settlement Agreement.

a. “Adverse information related to non-compliance with the COVID-19 Mandate” means a

negative notation in the Service member’s yearly Evaluation (NAVPERS 1616/26 for E6 and

below) or Fitness Report and Counseling Record (NAVPERS 1610/2 for E7 – O6).

b. “Change 2 to BUPERSINST 1730.11A” means the next sequential update to BUPERSINST

1730.11A following Change 1 to BUPERSINST 1730.11A, dated March 11, 2022.

c. “Civil Action” means the civil action captioned U.S. NAVY SEALs 1-26 v. Biden, 4:21-cv-

01236-O (N.D. Tex.) and in certain filings referred to as U.S. NAVY SEALs 1-3 v. Austin, 4:21-cv-

01236-O (N.D. Tex.).

d. “Class” means all members of the United States Navy who were subject to the Navy’s

COVID-19 Vaccine Mandate and who submitted a Religious Accommodation request concerning

the Navy’s COVID-19 Vaccine Mandate or who submitted a Religious Accommodation request

concerning the Navy’s COVID-19 Vaccine Mandate and were separated from the Navy, even if

the request was withdrawn. A member of the Class is a “Class Member.”

e. “Class Counsel” means Heather Gebelin Hacker, Hacker Stephens LLP, 108 Wild Basin

Road, Suite 250, Austin, Texas 78746; Andrew Bowman Stephens, Hacker Stephens LLP, 108

Wild Basin Road South, Suite 250, Austin, Texas 78746; Jeffrey C. Mateer, First Liberty Institute,

APPX.0006
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2001 W. Plano Parkway, Suite 1600, Plano, Texas 75075; David Jonathan Hacker, First Liberty

Institute, 2001 W. Plano Parkway, Suite 1600, Plano, Texas 75075; Danielle A. Runyan, First

Liberty Institute, Suite 1600, Plano, Texas 75075; Hiram Stanley Sasser, III, First Liberty Institute,

2001 W Plano Parkway, Suite 1600, Plano Texas 75075; Holly Mischelle Randall, First Liberty

Institute, 2001 W. Plano Parkway, Suite 1600, Plano, Texas 75075; Kelly J. Shackelford, First

Liberty Institute, 2001 W Plano Parkway, Suite 1600, Plano, Texas 75075.

f. “Class Representatives” means and includes the individuals who have been proceeding in

the Civil Action under the pseudonyms United States Navy SEAL 1, United States Navy SEAL 2,

United States Navy SEAL 3, and United States Navy Explosive Ordnance Disposal Technician 1.

g. “COVID-19 Vaccine Mandate,” “Navy’s COVID-19 Vaccine Mandate” and “COVID-19

Mandate” each means the requirement that members of the Armed Forces be vaccinated against

COVID-19, issued in the Secretary of Defense’s memorandum dated August 24, 2021, titled

“Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members,”

and which was rescinded under the Secretary of Defense’s memorandum dated January 10, 2023,

titled “Rescission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019

Vaccination Requirements for Members of the Armed Forces.”

h. “Defendants” means Lloyd J. Austin, III, in his official capacity as United States Secretary

of Defense; United States Department of Defense; and Carlos Del Toro, in his official capacity as

United States Secretary of the Navy; or their successors.

i. “DD-214” means a Department of Defense DD Form 214, Certificate of Release or

Discharge from Active Duty.

j. “District Court” and “Court” mean the United States District Court for the Northern District

of Texas, unless the context indicates otherwise.

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k. “Effective date” or “effective date of this Agreement” means the date as of which, if the

Agreement is not void or voided, no timely appeals may be taken from the Court’s order granting

final approval of this Agreement, and as of which any and all timely appeals of such order have

been resolved.

l. “Final approval” means that the Court has entered an order approving this Settlement

Agreement under Federal Rule of Civil Procedure 23(e).

m. “Formal counsel” means a counseling or warning on a NAVPERS 1070/613 form.

n. “Parties” means and refers to Named Plaintiffs and Defendants.

o. “Plaintiffs” or “Named Plaintiffs” means and includes the Class Representatives and the

individuals who have been proceeding in the Civil Action under the pseudonyms United States

Navy SEAL 3, United States Navy SEAL 4, United States Navy SEAL 5, United States Navy

SEAL 6, United States Navy SEAL 7, United States Navy SEAL 8, United States Navy SEAL 9,

United States Navy SEAL 10, United States Navy SEAL 11, United States Navy SEAL 12, United

States Navy SEAL 13, United States Navy SEAL 14, United States Navy SEAL 15, United States

Navy SEAL 16, United States Navy SEAL 17, United States Navy SEAL 18, United States Navy

SEAL 19, United States Navy SEAL 20, United States Navy SEAL 21, United States Navy SEAL

22, United States Navy SEAL 23, United States Navy SEAL 24, United States Navy SEAL 25,

United States Navy SEAL 26, United States Navy Special Warfare Combatant Craft Crewman 1,

United States Navy Special Warfare Combatant Craft Crewman 2, United States Navy Special

Warfare Craft Crewman 3, United States Navy Special Warfare Craft Crewman 4, United States

Navy Special Warfare Craft Crewman 5, United States Navy Diver 1, United States Navy Diver

2, and United States Navy Diver 3.

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p. “Precept” means the written instructions the Secretary of the Navy is authorized to issue

to a U.S. Navy selection board pursuant to Department of Defense Instruction 1320.14.

q. “Preliminary Approval Order” means the Order entered by the Court preliminarily

approving the terms and conditions of this Agreement, including the manner and timing of

providing notice to the Class, the period for objections and the date, time and location of the

Fairness Hearing, substantially in the form attached hereto as Attachment A.

r. “U.S. Navy” has the same meaning as “The Navy” in 10 U.S.C. § 8062.

C. Agreements

17. Defendants agree to re-review the personnel records of all Class Members to ensure that

the U.S. Navy has permanently removed records indicating administrative separation processing

or proceedings, formal counseling, and non-judicial punishment actions taken against the Class

Members solely on the basis of non-compliance with the COVID-19 Vaccine Mandate and adverse

information related to non-compliance with the COVID-19 Vaccine Mandate. 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.

18. Defendants agree that the U.S. Navy will review the personnel records of all Class

Members who were separated from the Navy to ensure that any Class Member who was discharged

solely on the basis of non-compliance with the COVID-19 Vaccine Mandate has a reenlistment

code on their DD-214 of RE1 or RE1A (Eligible for Enlistment) and that the U.S. Navy will

remove any indication from that service member’s records that he or she was discharged for

misconduct. The U.S. Navy agrees to complete this review and any necessary removals within

one year of the Effective Date of this Agreement and Defendants agree to notify Class Counsel

when this review is complete.

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19. Defendants agree to include language in the precepts for the U.S. Navy Fiscal Year (“FY”)

25, FY 26, and FY 27 selection board convening orders. 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 related solely to COVID-19 vaccine refusal in cases in which a religious

accommodation was requested.

20. Defendants agree that the U.S. Navy will issue a Change 2 to BUPERSINST 1730.11A

within seven days of the Effective Date of this Agreement that removes the words on page 10 “[i]n

case of requests for waivers of uniform or grooming standards only” to make clear that a religious

accommodation request that was previously denied may be resubmitted due to a Sailor’s change

in physical, operational, or geographical environment, or at any time when there is a change to

pertinent policy. The U.S. Navy agrees not to change this provision for a period of at least three

years from the Effective Date of this Agreement, and if it generally changes or updates the

instruction during that period, it will include the aforementioned provision permitting

resubmission of religious accommodation requests when there is a change in a Sailor’s physical,

operational, or geographical environment, or at any time when there is a change to pertinent policy.

21. 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 to be posted for at least

one year thereafter: “The United States Navy supports diverse expressive activities, to include

religious expression, and recognizes that through inclusion we are a better military and stronger

nation for it. Accommodation of sincerely held religious beliefs are a pillar of the Navy’s

commitment to treating all Sailors with dignity and respect. The Navy works to support each

Sailor’s religious practices to the broadest extent possible within the bounds of military readiness,

APPX.0010
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unit cohesion, good order, discipline, health and safety. Discrimination on the basis of religion is

contrary to the Navy’s core values of honor, courage, and commitment.”

22. Defendants agree that the U.S. Navy will prominently post information regarding religious

accommodation requests on its public website, within six months of the Effective Date of this

Agreement, and to be posted for at least three years thereafter. The exact content of the information

shall be within the U.S. Navy’s discretion, but will (1) advise service members of their rights to

request religious accommodations, including but not limited to, the process for doing so, the right

to receive a timely response to a religious accommodation request, the prohibition on

discriminatory treatment of service members based on the submission of a religious

accommodation request, the right to be considered for alternative accommodations of a religious

practice, and additional information concerning the submission of religious accommodation

requests as set forth in Department of Defense and Navy policies; and (2) include the numbers of

religious accommodation requests granted and denied by the Chief of Naval Personnel.

23. Defendants agree that the U.S. Navy will create a training presentation in Microsoft

PowerPoint software file format for all U.S. Navy supervisors, commanders, and all religious

accommodation request decisionmakers, within six months of the Effective Date of this

Agreement. This presentation will be prominently posted on the U.S. Navy’s public website and

within six months of the Effective Date of this Agreement, the U.S. Navy will load the training

presentation into its Navy E-Learning training database and the Total Workforce Management

Services (TWMS) database. The training presentation will continue to be posted on the Navy’s

public website and remain in the Navy E-Learning and TWMS databases, accessible through the

Navy’s internal homepage, for at least three years thereafter. The exact content of the training

presentation is within the U.S. Navy’s discretion, but will (1) include information addressing the

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requirement to complete adjudication of a service member’s validly submitted religious

accommodation request in accordance with the timelines specified by Table 1 of DoDI 1300.17

(Sept. 1, 2020); (2) include information addressing the requirement for a religious accommodation

request to be individually assessed in accordance with the requirements contained in DoDI 1300.17

(Sept. 1, 2020) and Change 2 to BUPERSINST 1730.11A (revised pursuant to this Agreement);

(3) include information addressing a service member’s entitlement to an individualized

justification for granting or denying a religious accommodation request, in accordance with the

standards provided in DoDI 1300.17 (Sept. 1, 2020) and Change 2 to BUPERSINST 1730.11A

(revised pursuant to this Agreement); and (4) include information about the importance of

accommodating religious belief and the dignity and respect expected of all U.S. Navy commanders

in addressing service members’ sincerely held religious beliefs.

24. Upon dismissal of this Civil Action, Defendants agree to a payment of $1,500,000.00 in

full satisfaction of Plaintiffs’ and the Class’s claims for attorneys’ fees and costs according to the

terms Section D of this Agreement.

25. The Parties agree that the terms of this Agreement are fair, reasonable, and adequate, and

that this Agreement provides substantial benefits to the Class Members and is in the Class’s best

interests.

D. Modified Settlement Class, Class Notice, Approval, and Stipulation of Dismissal
Modified Settlement Class and Preliminary Approval by the Court
26. Plaintiffs will submit this Agreement and its Attachments to the District Court along with

a motion for its preliminary approval (“Motion for Preliminary Approval”). The Motion for

Preliminary Approval will specifically request that the Court set a hearing on the motion and will

be accompanied by, among other documents, this Agreement and its incorporated attachments.

The Motion for Preliminary Approval will specifically request that the Court:

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a. Preliminarily find that it will be likely to modify the class definition, for settlement purposes,

pursuant to Rule 23(b)(2); Fed. R. Civ. P., without a change to Class Counsel and the Class

Representatives, so that it conforms with the definition of “class” in this Agreement.

b. Grant preliminary approval to the Settlement Agreement and its attachments and authorize

issuance of the notice attached as Attachment B;

c. Approve the Parties’ plan, as identified in paragraph 28, for dissemination of notice of this

Agreement pursuant to Rule 23(e)(1); Fed. R. Civ. P.;

d. Set a date and procedure by which objections from Class Members must be filed in

accordance with this Settlement Agreement;

e. Set a date for the Fairness Hearing that is no sooner than 60 days after Preliminary Approval,

at which time the Court will determine whether the Settlement Agreement should be finally

approved under Rule 23(e); Fed. R. Civ. P.

27. Defendants agree solely for the purposes of this Agreement and its implementation, that

the Civil Action shall proceed as a class action under Federal Rule of Civil Procedure 23(b)(2)

with a class definition that conforms to the definition of the “Class” in paragraph 16d of this

Agreement, but if such Agreement is not approved, or if final approval is not granted following

the appeal of any order by the Court, or if for any reason the Effective Date of this Agreement does

not occur, or if this Agreement is not consummated, then the modification of the class definition

shall be deemed null and void, and each Party shall retain all of their respective rights as they

existed prior to execution of this Agreement and Defendants retain all rights to object to the

maintenance of this Civil Action as a class action and retain all rights to object that any modified

class definition satisfies the requirements of Federal Rule of Civil Procedure 23. Any certification

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of the class for settlement purposes is not an admission by Defendants that class certification is

proper in this Civil Action or in any other litigation against Defendants.

Class Notice

28. The Parties agree that following Court approval of the agreed-upon notice, Attachment B,

the U.S. Navy will send Attachment B of this Agreement to all Class Members which will include

a copy of this Agreement via the service members’ navy.mil email addresses, or if the Class

Member is no longer in the U.S. Navy, by mail to the Class Members’ last known home address

according to U.S. Navy records.

Objections

29. Any Class Member who wishes to object to the fairness, reasonableness, or adequacy of

this Settlement Agreement or the settlement contemplated hereby, or the request for attorneys’

fees, reimbursement of litigation costs and expenses, must file with the Clerk of Court and serve

all counsel, no later than seven days before the Fairness Hearing, a statement of the objection

setting forth the specific reason(s), if any, for the objection, including any legal support that the

Class Member wishes to introduce in support of the objection, whether it applies only to the

objector, to a specific subset of the Class, or to the entire Class, and whether the Class Member

intends to appear at the Fairness Hearing. Class Members may so act either on their own or through

any attorney hired at their own expense.

30. Any Class Member who files and serves a written objection in accordance with the

foregoing paragraph may appear at the Fairness Hearing to object to any aspect of the fairness,

reasonableness, or adequacy of this Agreement or the settlement contemplated hereby, provided,

however, that a Class Member who does not timely file and serve such a written objection will not

be heard at the Fairness Hearing.

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31. Subject to the Court’s discretion, any Class Member (or his or her attorney) who has not

complied with the provisions of paragraphs 29 and 30, will waive and forfeit any and all rights the

Class Member may have to appear separately or to object and will be bound by the terms of the

Settlement and by all of the proceedings, orders and judgments in the Civil Action.

Motion for Final Approval, the Fairness Hearing, and Stipulation of Dismissal.

32. On the date set by the Court in the Preliminary Approval Order, Plaintiffs will file a motion

for Final Approval requesting that the Court, among other things (a) affirm the modification of the

class definition for settlement purposes, (b) approve the Settlement Agreement as final, fair,

reasonable, adequate, and binding on all Class Members, (c) approve payment of reasonable

attorneys’ fees and reimbursement of litigation costs that are authorized by this Agreement and

Rule 23(h), Fed. R. Civ. P.

33. Any Party may respond to any timely filed objections no later than fourteen (14) days

before the scheduled date of the Fairness Hearing.

Stipulation of Dismissal

34. Plaintiffs and the Class agree to the dismissal of this case with prejudice subject to the

terms of the Settlement Agreement. Following final approval of the Settlement Agreement, and

no later than five business days after Plaintiffs’ receipt of payment as set forth in Section E of this

Agreement, the parties will file a joint stipulation of dismissal with prejudice under Federal Rule

of Civil Procedure 41(a)(1)(A)(ii). A copy of the joint stipulation of dismissal to be filed is

attached as Attachment C to this Agreement. The Court will not retain jurisdiction over any aspect

of this action, or in connection with the enforcement of any of its provisions, after the joint

stipulation of dismissal with prejudice is filed.

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E. Fee Settlement and Release

35. The Parties agree to settle all claims of the Plaintiffs and the Class for an award of attorneys’

fees, costs, and other litigation expenses arising from the Civil Action for $1,500,000.00.

36. Defendants shall pay Plaintiffs, through undersigned counsel, $1,500,000.00 for attorneys’

fees, costs, and other litigation expenses reasonably incurred in the Civil Action (the “Settlement

Payment”). The Settlement Payment constitutes full and complete satisfaction of Plaintiffs’ claims

for attorneys’ fees and costs in the Civil Action, and any and all potential claims that Plaintiffs and

the Class may have for attorneys’ fees, costs, and other litigation expenses associated with the

Civil Action, inclusive of any interest. This settlement includes all fees and costs associated with

representation of the class certified in this Civil Action on March 28, 2022, and any putative classes

proposed in the Civil Action, and any modified class as defined in this Agreement. Defendants

will effectuate the payment promptly after the effective date of this Agreement. After the parties

file a stipulation of dismissal of the Civil Action as provided in Part C of this Agreement,

Defendants will pay the above amount by wire transfer to an account at a financial institution

designated in writing by counsel for Plaintiffs, consistent with the normal processing procedures

followed by Defendants and the United States Department of the Treasury. Plaintiffs’ counsel will

provide Defendants’ counsel the bank routing and account information for the account to receive

such payments. Defendants will promptly prepare and submit all required documentation to the

Department of the Treasury for processing and disbursement of the payments set forth above to

ensure that payment is made as soon as practicable, which Defendants expect to be no more than

60 days from receipt of Plaintiffs’ bank account and routing information.

37. Plaintiffs, the members of the Class defined above, and their heirs, administrators,

representatives, attorneys, successors, and assigns, and each of them hereby release, waive, acquit,

and forever discharge the United States, Defendants, any department, agency or establishment of
15

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the United States, and their present or former officials, employees, successors, and agents, in their

official and individual capacities, from, and are hereby forever barred and precluded from

prosecuting, any and all claims, causes of action, and/or requests for relief that would be barred by

the doctrine of res judicata were final judgment on the merits entered on all claims asserted in the

Civil Action, including claims to attorneys’ fees, costs, and other litigation expenses or claims for

attorneys’ fees, costs, and other litigation expenses that have been, or could have been, made as a

result of the Civil Action. Without limiting the generality of the foregoing, this release

encompasses, resolves, and satisfies all claims for attorneys’ fees, costs, and other litigation

expenses in connection with all facets of the Civil Action, from the initial submission of

Complaint, ECF No. 1, and including any litigation, as well as attorneys’ fees, costs, and other

litigation expenses for any other proceedings involving claims or causes of action that were or

could have been raised in the Civil Action. The release provided for in this paragraph shall become

effective on the Effective Date of this Agreement.

38. The Plaintiffs assume liability for any tax consequences that may arise from this

Agreement. Compliance with all applicable federal, state, and local tax requirements shall be the

sole responsibility of the Plaintiffs. This Agreement is executed without reliance upon any

representation by Defendants as to tax consequences, and the Plaintiffs are responsible for the

payment of all taxes that may be associated with the settlement payments. Further, nothing in this

Agreement waives or modifies federal, state, or local law pertaining to taxes, offsets, levies, and

liens that may apply to this Agreement or the settlement proceeds, and this Agreement is executed

without reliance on any representation by Defendants as to the application of any such law.

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F. Conditions that Render Settlement Agreement Void or Voidable

39. This Settlement Agreement shall be voidable by either party if not approved as written at

any stage by the Court or if the Court enters an order providing for continuing jurisdiction over

any matters related to administration, enforcement, or interpretation of this Agreement.

G. Effect of Settlement Agreement if Voided

40. If this Settlement Agreement is not approved, the case will proceed as if no settlement has

been attempted. In that event, the class certified for purposes of settlement will be decertified, and

Defendants retain the right to contest whether this action should be maintained as a class action

and to contest the merits of the claims being asserted by Plaintiffs in this Action.

41. All negotiations in connection herewith, and all statements made by the Parties at or

submitted to the District Court as part of a Fairness Hearing process, shall be without prejudice to

the Parties to the Settlement Agreement and shall not be deemed or construed to be an admission

by any party of any fact, matter, proposition, nor admissible for any person in the Civil Action

other than with respect to settlement of same.

42. The Parties retain all defenses, arguments, and motions as to all claims that have been or

might later be asserted in the Civil Action, and nothing in this Agreement shall be raised or

construed by any party, Class Member, or party’s counsel, to defeat or limit any claims, defenses,

arguments, or motions asserted by either party. Neither this Agreement, nor the fact of its having

been made, nor any attachment or exhibit or other document prepared in connection with this

Settlement Agreement, shall be admissible, entered into evidence, or used in any form or manner

in discovery in the Civil Action or in any other action or proceeding for any purposes inconsistent

with Rule 408 of the Federal Rules of Evidence.

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H. Miscellaneous

43. The Parties will cooperate fully with each other and use their best efforts to obtain the

Court’s approval of this Agreement and all of its terms. Each of the Parties, upon the request of

an other Party, agrees to perform such further acts and to execute and deliver such other documents

as are reasonably necessary to carry out the provisions of this Agreement.

44. This Agreement has been entered into by Plaintiffs and Defendants solely for the purposes

of compromising potentially disputed claims including an award of attorneys’ fees, costs, and other

litigation expenses in the Civil Actions without protracted legal proceedings and avoiding the

expense and risk of litigation regarding such claims. Therefore, this Agreement is not intended

and shall not be deemed an admission by any Party of the merit or lack of merit of an opposing

Party’s claims or defenses. Without limiting the generality of the foregoing, this Agreement does

not constitute, and shall not be construed as, an admission of liability or fault on the part of the

Defendants or the United States or their present or former officials, employees or agents, or as an

admission of any contested fact alleged by Plaintiffs in connection with Plaintiffs’ claims to

include a request for an award of attorneys’ fees, costs, and other litigation expenses arising from

the Civil Actions. This Agreement may not be used as evidence or otherwise in any civil or

administrative action or proceeding against Defendants or the United States or any of their present

or former officials, employees or agents, either in their official or individual capacities, except for

proceedings necessary to implement or enforce the terms hereof.

45. This Agreement contains the entire agreement between Plaintiffs and Defendants as to all

claims including all claims for attorneys’ fees, costs, and other litigation expenses in the Civil

Actions and supersedes all previous agreements, whether written or oral, between the Parties

relating to Plaintiffs’ claims including claims for attorneys’ fees and other litigation expenses in

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the Civil Actions. No promise or inducement has been made except as set forth herein, and no

representation or understanding, whether written or oral, that is not expressly set forth herein shall

be enforced or otherwise given any force or effect in connection with the Agreement.

46. The terms of this Agreement may not be modified or amended, and no provision hereof

shall be deemed waived, except by a written instrument signed by the Party to be charged with the

modification, amendment, or waiver, or by such Party’s counsel or by order of a court of competent

jurisdiction.

47. The Parties acknowledge that the preparation of this Agreement was collaborative in nature,

and so agree that any presumption or rule that an agreement is construed against its drafter shall

not apply to the interpretation of this Agreement or any term or provision hereof.

48. Plaintiffs warrant and represent that no other action or suit with respect to Plaintiffs’ claims

including any claims for attorneys’ fees, costs, and other litigation expenses advanced in the Civil

Actions is pending or will be filed in or submitted to any other court, administrative agency, or

legislative body. Plaintiffs further warrant and represent that except to their counsel in the Civil

Actions they have made no assignment or transfer of all or any part of their rights arising out of or

relating to Plaintiffs’ claims including any claims for attorneys’ fees, costs, and other litigation

expenses advanced in this suit.

49. Each Party agrees to take such actions and to execute such additional documents as may

be necessary or appropriate to fully effectuate and implement the terms of this Agreement.

50. The Parties to this Agreement will defend against any challenges to it in any forum.

51. This Agreement may be executed in two or more counterparts, each of which shall be

deemed to be an original and all of which together shall be deemed to be one and the same

agreement. A portable document format (“.PDF”) signature, electronic image of a signature, or

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other duplicate of a signature shall have the same effect as a manually executed original. Each

signatory to this Agreement represents and warrants that the signatory is fully authorized to enter

into this Agreement on behalf of the persons or entities indicated below, and has done so freely

and voluntarily, without any degree of duress or compulsion. Unless context indicates otherwise,

this agreement is effective on the effective date of this Agreement.

52. The headings in this Agreement are for convenience only and do not limit, expand, modify,

or aid in the interpretation or construction of this Agreement.

53. For purposes of this Agreement, the term “days” means calendar days, and whenever a

deadline for an event lands on a Saturday, Sunday, or observed federal holiday, the deadline will

be extended to the following business day.

Dated: May 31, 2024

KELLY J. SHACKELFORD HEATHER GEBELIN HACKER
Texas Bar No. 18070950 Texas Bar No. 24103325
JEFFREY C. MATEER ANDREW B. STEPHENS
Texas Bar No. 13185320 Texas Bar No. 24079396
HIRAM S. SASSER, III HACKER STEPHENS LLP
Texas Bar No. 24039157 108 Wild Basin Road South, Suite 250
DAVID J. HACKER Austin, Texas 78746
Texas Bar No. 24103323 Tel.: (512) 399-3022
DANIELLE A. RUNYAN heather@hackerstephens.com
Texas Bar No. 24134548 andrew@hackerstephens.com
Holly M. Randall
Texas Bar No. 24128002 Class Counsel and Counsel for Plaintiffs
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
drunyan@firstliberty.org
hrandall@firstliberty.org

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Dated: May 31, 2024

_______________________
ANDREW E. CARMICHAEL
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street NW, Room 11532
Washington, DC 20005

On Behalf of Defendants

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ATTACHMENT
A

APPX.0023
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

US NAVY SEALS 1-26, et al., §
§
Plaintiffs, §
§
v. § Civil Action No. 4:21-cv-01236-O
§
LLOYD J AUSTIN, III, et al., §
§
Defendants. §

[PROPOSED] ORDER OF PRELIMINARY
APPROVAL OF SETTLEMENT AGREEMENT

The parties entered into a proposed Settlement Agreement on May 31, 2024 and requested
that the Court give its preliminary approval to that Settlement Agreement and approve the form and
method of providing notice of the proposed settlement to the Class described in the Settlement
Agreement. Unless otherwise defined, all terms used herein have the same meanings as set forth in
the Settlement Agreement. The Court has reviewed the Settlement Agreement and the referenced
Exhibits, including the proposed forms of Class Notice, and finds and concludes as follows:

1. The Court entered an Order dated March 28, 2022 certifying the Class pursuant to Federal
Rule 23(b)(2) as follows:

[A]ll members of the United States Navy who are subject to the Navy’s COVID-19
Vaccine Mandate and who have submitted a Religious Accommodation request
concerning the Navy’s COVID-19 Vaccine Mandate.

2. Because the Settlement Agreement provides relief to former class members who withdrew
their requests for religious accommodation in order to be discharged from the Navy, the Court hereby
finds good cause under Rule 23 to amend the Class definition as follows:

All members of the United States Navy who were subject to the Navy’s COVID-19 Vaccine
Mandate and who submitted a Religious Accommodation request concerning the Navy’s COVID-19
Vaccine Mandate or who submitted a Religious Accommodation request concerning the Navy’s
COVID-19 Vaccine Mandate and were separated from the Navy, even if the request was withdrawn.

The Court concludes, after consideration of Plaintiffs’ Unopposed Motion, that the Class still
meets the requirements of Rule 23 with the above amendment.

3. The Court has considered the history of this case, the pleadings, and the statements by
Class Counsel. On a preliminary basis, the Court finds that the Settlement Agreement is fair,
reasonable, adequate and in the best interests of the Class. The Court will therefore direct that Notice
of the Settlement Agreement, in the form of the Notice hereby attached, be provided to the Class
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pursuant to Fed. R. Civ. P. 23(e)(B).

4. The Court has reviewed the form of the “Notice of Proposed Class Action Settlement and
Hearing to Approve Proposed Settlement,” which was attached as an exhibit to the Settlement
Agreement, and finds that it complies with the requirements of Fed. R. Civ. P. 23(d) and (e) and
fairly presents the terms of the Settlement Agreement and the Class Members’ rights and
responsibilities in the settlement approval process.

5. The parties propose that Notice be sent by Defendants in the form of Attachment B to the
Settlement Agreement to all identified Class Members currently in the Navy by their navy.mil email
addresses, and to any Class Members who have since retired or left service by first class mail to their
last known address. The Court finds that such Notice, in the form hereby attached, is the best notice
practicable under the circumstances, and is reasonably calculated to effectuate actual notice of the
settlement to the Class.

6. The proposed Notice to those Class Members provides due and sufficient notice of the
proceedings, of the proposed settlement, and of the settlement approval procedures, thus satisfying
the requirements of Fed. R. Civ. P. 23 and the requirements of due process.

7. Therefore, based on the foregoing findings of fact and conclusions of law:

IT IS HEREBY ORDERED that Plaintiffs’ Unopposed Motion to Amend the Class
Definition for Settlement Purposes, To Preliminarily Approve the Class Action Settlement, To
Approve the Form and Manner of Notice, and to Set a Date for a Fairness Hearing is GRANTED.

IT IS FURTHER ORDERED that the Settlement Agreement is preliminarily approved.

IT IS FURTHER ORDERED that all proceedings not related to the approval and
implementation of the Settlement Agreement are STAYED until further Order of the Court.

IT IS FURTHER ORDERED that the proposed Notice of Proposed Class Action Settlement
and Hearing to Approve Proposed Settlement, which was attached as Attachment B to the Settlement
Agreement, are approved by this Court and that the Notice, together with a copy of the Settlement
Agreement and any appropriate Attachments, be sent by Defendants to each Class Member by the
agreed means on or before July 1, 2024.

IT IS FURTHER ORDERED that Defendants’ counsel will file a Declaration attesting to
such service with this Court prior to the date set for hearing on the Settlement Agreement.

IT IS FURTHER ORDERED that on August 27, 2024, at the hour of [______]., in the
courtroom of the Honorable Reed O’Connor, United States Courthouse, Second Floor, 501 W. 10th
Street, Fort Worth, Texas 76102-3673, the Court will conduct a hearing to finally determine the
fairness, reasonableness and adequacy of the terms and conditions of the settlement set forth in the
Settlement Agreement and Exhibits thereto. Should the Court find that the Settlement Agreement is
fair, reasonable, adequate, and in the best interest of the Class, the Final Order shall be entered.

IT IS FURTHER ORDERED that any Class Member may appear personally or by counsel

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at the hearing and may object or express his or her view regarding the Settlement Agreement and
present evidence, briefs or other papers in support thereof. However, a Class Member will not be
heard, nor be entitled to contest the approval by this Court of the Settlement Agreement, unless on
or before August 13, 2024, he or she files with the Clerk of this Court written objections, together
with all papers to be submitted to this Court at the Settlement Hearing, and on or before that date
serves all such objections and other papers on each of the following: (a) Class Counsel Heather G.
Hacker, Hacker Stephens LLP, 108 Wild Basin Rd. South, Suite 250, Austin, TX 78736,
heather@hackerstephens.com; and (b) Defendants’ Counsel Andrew E. Carmichael, United States
Department of Justice, Civil Division, Federal Programs Branch, 1100 L Street N.W., Washington,
D.C. 20005, Andrew.E.Carmichael@usdoj.gov. Any Class Member who does not file and serve his
or her objections in this manner will be deemed to have waived his or her objections and will be
forever precluded from making any objections to the fairness or adequacy of the proposed Settlement
Agreement. Objections should bear the following heading: U.S. Navy SEALs 1-26 v. Biden, Case
No. 4:21-cv-01236, Objections to Proposed Class Settlement.

IT IS FURTHER ORDERED that the hearing may be continued or adjourned by order of
this Court, from time to time, and without further notice to the Class, except any Class Member who
has timely filed an objection.

SO ORDERED on this day of , 2024.

___________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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ATTACHMENT
B

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NOTICE OF PROPOSED CLASS ACTION SETTLEMENT AND
HEARING TO APPROVE PROPOSED SETTLEMENT
U.S. Navy SEALs 1-26 v. Biden
A proposed class action settlement (“Settlement”) has been reached in a class action lawsuit
entitled U.S. Navy SEALs 1-26 v. Biden, 4:21-cv-01236-O (N.D. Tex.). This lawsuit was brought
on behalf of a class of United States Navy Sailors who were subject to the Navy’s COVID-19
Vaccine Mandate and who submitted a Religious Accommodation request concerning the Navy’s
COVID-19 Vaccine Mandate. The parties in the lawsuit have proposed to settle the case, and the
U.S. District Court for the Northern District of Texas will decide whether to approve the
Settlement.
This Notice will tell you about the terms of the Settlement. You are not being sued, and this is not
an advertisement. If you think the Settlement relates to you, please read this Notice.
PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE
TO INQUIRE ABOUT THIS SETTLEMENT.
What is the lawsuit about?
U.S. Navy SEALs 1-26 v. Biden is a federal court case brought on behalf of a class of United States
Navy Sailors who were subject to the Navy’s COVID-19 Vaccine Mandate and who submitted a
Religious Accommodation request concerning the Navy’s COVID-19 Vaccine Mandate. A case
like this is brought on behalf of a group of people who have similar legal claims (called a “Class”).
The case was filed in late 2021 and alleged that the Navy’s requirement to be vaccinated against
COVID-19 and processing of Religious Accommodation requests violated the U.S. Constitution
and federal laws. The Plaintiffs obtained preliminary relief from the Court that prevented the Navy
from involuntarily separating members of the Class while the Vaccine Mandate was in effect.
Before Plaintiffs’ claims were finally decided by the Court, Plaintiffs and the Government reached
a Settlement that would require the Navy to take several actions for people who, on March 28,
2022, were Navy Service members subject to the requirement to be vaccinated against COVID-19
and had submitted a request for a religious accommodation from that requirement.
The Court has appointed lawyers to represent the Class. They are called “Class Counsel” and their
contact information is listed at the end of this document.
Will the Settlement affect me?
The Court has preliminarily modified the class definition to include the following class of people
who will be bound by the Settlement (the “Settlement Class”): “All members of the United States
Navy who were subject to the Navy’s COVID-19 Vaccine Mandate and who submitted a Religious
Accommodation request concerning the Navy’s COVID-19 Vaccine Mandate or who submitted a
Religious Accommodation request concerning the Navy’s COVID-19 Vaccine Mandate and were

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separated from the Navy, even if the request was withdrawn.” Therefore, the Settlement may
affect your rights if you are a Settlement Class Member.
What are the terms of the settlement?
Below is only a summary of the Settlement. If you want to know more, you should read the
Settlement or talk to your lawyer, if you have one. The Settlement provides certain benefits to
individuals who were subject to the Navy’s COVID-19 Vaccine Mandate and who had submitted
a Religious Accommodation request concerning the Navy’s COVID-19 Vaccine Mandate. Also, it
ensures that the Navy will provide additional resources and protection for Navy Service members
seeking religious accommodation requests in the future. And it provides for additional training
and information resources for commanders that consider religious accommodation requests. More
specifically, the Settlement provides that:
• The Navy will review the personnel records of all Class Members to ensure that the
Navy has permanently removed records indicating adverse action against the Class
Members solely on the basis of non-compliance with the COVID-19 Mandate and to
ensure that Class Members who were discharged solely on the basis of non-compliance
with the COVID-19 mandate have a reenlistment code of RE1 or RE1A on their DD-
214s and that any indication that a Class Member was discharged for misconduct is
removed from their record.

• The Navy will include language in the precepts for the U.S. Navy Fiscal Year (“FY”)
25, FY 26, and FY 27 selection board convening orders providing that the boards must
not consider any adverse information related solely to COVID-19 vaccine refusal in
cases in which a religious accommodation was requested.

• The Navy will issue a change to a Bureau of Navy Personnel Instruction to make clear
that a religious accommodation request that was previously denied may be resubmitted
when certain circumstances change.

• The Navy will display the following message on its website for one year:
“The United States Navy supports diverse expressive activities, to include
religious expression, and recognizes that through inclusion we are a better
military and stronger nation for it. Accommodation of sincerely held religious
beliefs are a pillar of the Navy’s commitment to treating all Sailors with dignity
and respect. The Navy works to support each Sailor’s religious practices to the
broadest extent possible within the bounds of military readiness, unit cohesion,
good order, discipline, health and safety. Discrimination on the basis of religion
is contrary to the Navy’s core values of honor, courage, and commitment.”

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• The Navy will post information regarding religious accommodation requests on its
website for a three-year period, including: (1) the number of religious accommodation
requests granted and denied by the Chief of Naval Personnel and (2) information
advising Service members of their right to request religious accommodations consistent
with existing DoD and Navy policy.

• The Navy will post a training presentation on its website and in its training databases
available to Sailors for a three-year period, pertaining to the requirements for
processing and adjudicating religious accommodation requests pursuant to DoD and
Navy instructions.

• The Navy will notify Class Members of the class settlement by e-mail, or if the Service
member is no longer in the military, by mail to their last known address.

• The Government will pay Class Counsel $1,500,000.00 to settle all claims to attorneys’
fees and costs.

If approved, the Settlement will release the U.S. Government, the U.S. Department of Defense,
and the U.S. Navy from liability for all claims that relate to the Department of Defense’s prior
requirement to be vaccinated against COVID-19 as well as all claims related to the U.S. Navy’s
religious accommodation request procedures. This release includes all claims for non-monetary
relief (including declaratory and injunctive relief) and may preclude certain non-individualized
claims for money damages.
Although the Settlement may not preclude you from bringing an individualized claim for money
damages, other legal doctrines may present barriers to such a claim. If you have additional
questions, you should consult with your lawyer, if you have one.
You have the right to object to the Settlement.
You have the right to say what you think about the Settlement before the Court decides whether to
approve it.
If you like the Settlement’s terms, you do not have to do anything.
You cannot “opt out” or exclude yourself from the Settlement. If the Settlement is approved by
the Court, you will be bound by the Settlement if you meet the definition of a Settlement Class
Member. If you are not satisfied with the Settlement, you can ask the Court to deny approval for
the Settlement. If the Court denies approval, the Settlement will not happen and the lawsuit will
continue.
• If that is what you want, you must object to the proposed Settlement in writing. If you
object in writing, you may also appear at the Final Approval Hearing, either on your
own behalf or through your own attorney. If you appear through your own attorney,

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you are responsible for hiring and paying for that attorney. If the Court approves the
Settlement despite any objections, it will apply to you even if you do not agree with it.

All written objections and supporting papers must:
• Clearly identify the following case name and number: U.S. Navy SEALs 1-26 v. Biden,
Case 4:21-cv-01236-O (N.D. Tex.)

• Be submitted to the Court by mailing them to:

Clerk’s Office
United States District Court for the Northern District of Texas
Fort Worth Division
501 West 10th Street, Room 310
Fort Worth, Texas 76102-3673
ATTN: U.S. Navy SEALs 1-26 v. Biden, Case No. 4:21-cv-01236, Objections to
Proposed Class Settlement

• Emailed to Class Counsel and Defendants’ Counsel at the below addresses:

Heather G. Hacker, Hacker Stephens LLP, heather@hackerstephens.com
(Class Counsel)

Andrew E. Carmichael, U.S. Department of Justice, Andrew.E.Carmichael@usdoj.gov
(Defendants’ Counsel)

• Be filed or received on or before [MONTH, DAY, 2024].

When and where will the Court decide whether to approve the Settlement?
The Final Approval Hearing is scheduled to take place on [MONTH, DAY, 2024], at [TIME], at
the United States District Court, 501 West 10th Street, Second Floor Courtroom, Fort Worth, TX
76102-3673. The date and time of the Final Approval Hearing may change without notice to you.
You must file and serve a written objection on or before [MONTH, DAY, 2024] or you may
not be heard at the Fairness Hearing.
Information about any changes to the Final Approval Hearing date or time will be available, for a
small fee, through the Court’s Public Access to Court Electronic Records (PACER) system, at
https://ecf.txnd.uscourts.gov/, using the case number 4:21-cv-01236-O.
Where can I get more information?
This Notice summarizes the Settlement. You should feel free to talk to your lawyer if you want to
know more. A copy of the Settlement Agreement is attached to this notice.

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You can also contact Class Counsel at the address, phone number, or email address listed below:
First Liberty Institute
2001 W. Plano Pkwy., Ste. 1600
Plano, Texas 75075
Tel: (972) 941-4444
navyvaxclassaction@firstliberty.org

5 of 5

APPX.0032
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ATTACHMENT
C

APPX.0033
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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,
Case No. 4:21-cv-01236-O
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.

JOINT STIPULATION OF DISMISSAL

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The Court having approved settlement of all claims raised by Plaintiffs 1 and the Class2

certified in the above-captioned action, and Plaintiffs having received payment as described in

Section E of the parties’ Settlement Agreement, pursuant to Federal Rules of Civil Procedure 23(e)

and 41(a)(1)(A)(ii), Plaintiffs and Defendants 3 hereby stipulate to dismissal of this action with

prejudice.

Dated: [DATE] Respectfully submitted,

BRIAN M. BOYNTON ________________________
Principal Deputy Assistant Attorney General ANDREW E. CARMICHAEL
AMY E. POWELL
ALEXANDER K. HAAS Senior Trial Counsel
Director, Federal Programs Branch LIAM HOLLAND
Trial Attorney
LAUREN A. WETZLER United States Department of Justice
Deputy Director Civil Division, Federal Programs Branch
Federal Programs Branch 1100 L Street, N.W.
Washington, DC 20005
Tel: (202)-689-5323

1
Plaintiffs include the Class Representatives United States Navy SEAL 1, United States Navy SEAL 2, United
States Navy SEAL 3, and United States Navy Explosive Ordnance Disposal Technician 1, and the individuals who
have been proceeding in the above captioned case under the pseudonyms United States Navy SEAL 3, United States
Navy SEAL 4, United States Navy SEAL 5, United States Navy SEAL 6, United States Navy SEAL 7, United
States Navy SEAL 8, United States Navy SEAL 9, United States Navy SEAL 10, United States Navy SEAL 11,
United States Navy SEAL 12, United States Navy SEAL 13, United States Navy SEAL 14, United States Navy
SEAL 15, United States Navy SEAL 16, United States Navy SEAL 17, United States Navy SEAL 18, United States
Navy SEAL 19, United States Navy SEAL 20, United States Navy SEAL 21, United States Navy SEAL 22, United
States Navy SEAL 23, United States Navy SEAL 24, United States Navy SEAL 25, United States Navy SEAL 26,
United States Navy Special Warfare Combatant Craft Crewman 1, United States Navy Special Warfare Combatant
Craft Crewman 2, United States Navy Special Warfare Craft Crewman 3, United States Navy Special Warfare Craft
Crewman 4, United States Navy Special Warfare Craft Crewman 5, United States Navy Diver 1, United States Navy
Diver 2, and United States Navy Diver 3.
2
The Class means the Class certified by this district court on March 28, 2022, see Dkt. 140, including all subclasses,
and modified, pursuant to the parties’ Settlement Agreement, by the district court to mean “all members of the
United States Navy who were subject to the Navy’s COVID-19 Vaccine Mandate and who submitted a Religious
Accommodation request concerning the Navy’s COVID-19 Vaccine Mandate or who submitted a Religious
Accommodation request concerning the Navy’s COVID-19 Vaccine Mandate and were separated from the Navy,
even if the request was withdrawn.”
3
Defendants are Lloyd J. Austin III, in his official capacity as Secretary of Defense; United States Department of
Defense; and Carlos Del Toro, in his official capacity as Secretary of the United States Navy.

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Email: andrew.e.carmichael@usdoj.gov

Counsel for Defendants

______________________
KELLY J. SHACKELFORD HEATHER GEBELIN HACKER
Texas Bar No. 18070950 Texas Bar No. 24103325
JEFFREY C. MATEER ANDREW B. STEPHENS
Texas Bar No. 13185320 Texas Bar No. 24079396
HIRAM S. SASSER, III HACKER STEPHENS LLP
Texas Bar No. 24039157 108 Wild Basin Road South, Suite 250
DAVID J. HACKER Austin, Texas 78746
Texas Bar No. 24103323 Tel.: (512) 399-3022
DANIELLE A. RUNYAN heather@hackerstephens.com
Texas Bar No: 24134548 andrew@hackerstephens.com
HOLLY M. RANDALL
Texas Bar No. 24128002 Class Counsel and Counsel for Plaintiffs
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
drunyan@firstliberty.org
hrandall@firstliberty.org

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EXHIBIT
2

APPX.0037
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

Defendants.

DECLARATION OF HEATHER G. HACKER IN SUPPORT OF PLAINTIFFS’
UNOPPOSED MOTION TO AMEND THE CLASS DEFINITION FOR SETTLEMENT
PURPOSES, TO PRELIMINARILY APPROVE THE CLASS ACTION SETTLEMENT,
TO APPROVE THE FORM AND MANNER OF NOTICE, AND TO SET A DATE FOR
A FAIRNESS HEARING

1
APPX.0038
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Pursuant to 28 U.S.C. §1746, I, Heather G. Hacker, declare as follows:

1. I am over the age of eighteen and competent to make this declaration.

2. I am an attorney with the Austin, Texas law firm Hacker Stephens LLP. I am

licensed to practice law in Arizona, California, and Texas.

3. I represent the Named Plaintiffs and original individual plaintiffs in this lawsuit.

Along with my law partner Andrew Stephens and co-counsel First Liberty Institute, I was

appointed Class Counsel for the certified plaintiff class in this matter.

4. I acted as Plaintiffs’ lead counsel in this matter in this Court and on appeal at the

United States Court of Appeals for the Fifth Circuit and the United States Supreme Court.

5. I, along with other Class Counsel, regularly communicated with the Named

Plaintiffs, the original individual plaintiffs, and other Class Members during this litigation. The

Plaintiffs were regularly informed of the progress of the case and participated in discussion and

decisions regarding case strategy and settlement. The Plaintiffs have approved the proposed

settlement.

6. I attended both court-ordered mediation sessions with U.S. Magistrate Judge

Jeffrey Cureton. Named Plaintiffs SEAL 2, 3, and EOD 1 also attended the first session, and all

Named Plaintiffs were available by phone during the second session. Both parties were required

to submit pre-mediation statements and Class Counsel was prepared for those sessions. Class

Counsel engaged in significant research and preparation throughout this case to understand the

strengths and weaknesses of the case and the benefits of settlement versus litigating through

discovery, final judgment, and eventual appeal. On behalf of the Class, I also led negotiations

between the parties after the second mediation that resulted in the Proposed Settlement Agreement.

2
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7. It is my opinion that Plaintiffs would be successful if this case were litigated

through trial to final judgment and on appeal, and that Plaintiffs could have obtained relief from

the Court which would be at least similar to, and perhaps stronger than, what the Navy agreed to

in the Proposed Settlement. But even if Plaintiffs could have ultimately prevailed and obtained

stronger relief if the litigation continued, the Proposed Settlement provides substantial relief for

the Class without the cost of continued harm to Class Members while waiting for final judgment.

My understanding from Defendants’ counsel is that Defendants intended to appeal an adverse

judgment, including to the U.S. Supreme Court, so it could take years before judgment would be

final, even if Plaintiffs prevail. The Proposed Settlement is very beneficial to the Class and

warrants approval by the Court.

8. Based on my review of billing records, my partner Andrew Stephens and I have

collectively spent nearly 2,000 hours working on this case to date. First Liberty Institute has spent

nearly 1,400 hours working on this case to date. In light of that work, the agreed payment of $1.5

million in attorneys’ fees is reasonable, and because the Class has no claims for monetary damages,

it does not reduce the Class’s relief in any way.

9. The parties have no other agreements other than that outlined by the Proposed

Settlement Agreement included in the appendix to this Motion.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and

correct.

Executed on May 21, 2024.

/s/ Heather G. Hacker
HEATHER G. HACKER

3
APPX.0040

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Exhibit C: Settlement Appendix from U.S. Navy SEALs 1–26 v. Austin (N.D. Tex.) — Case 5:22-cv-00009-TES

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