Navy SEAL 1 v. Austin
Decision Date | 29 April 2022 |
Docket Number | Civil Action No. 22-0688 (CKK) |
Citation | 600 F.Supp.3d 1 |
Parties | NAVY SEAL 1, et al., Plaintiffs v. Lloyd AUSTIN, in his official capacity as Secretary of the United States Department of Defense, et al., Defendants. |
Court | U.S. District Court — District of Columbia |
David Eliezer Yerushalmi, Law Offices of David Yerushalmi, P.C., Washington, DC, Robert Joseph Muise, American Freedom Law Center, Ann Arbor, MI, for Plaintiffs.
Andrew Evan Carmichael, Johnny Hillary Walker, III, Cassie Snyder, Michael Patrick Clendenen, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendants Lloyd Austin, Carlos Del Toro.
Andrew Evan Carmichael, Daniel Luecke, Johnny Hillary Walker, III, Michael Patrick Clendenen, Cassie Snyder, Joseph Alfonso Gonzalez, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington DC, for Defendant Michael M. Gilday.
COLLEEN KOLLAR-KOTELLY, United States District Judge Plaintiff Navy SEAL 4 is a Navy servicemember and religious objector to one of nine vaccines mandated by the Navy. Before the Court is his [14] Motion for Preliminary Injunction ("Motion"), which seeks an order barring (1) the Navy from discharging him for his failure to comply with Navy medical requirements and (2) the Navy from taking any other adverse action against him (including, for example, reassignment). The Motion raises particularly difficult questions that implicate a storm of colliding constitutional interests of exceptional public import. On the one hand, Plaintiff alleges a violation of a fundamental right guaranteed by the Constitution's Free Exercise Clause. On the other hand, the Commander-in-Chief Clause provides the military broadly unfettered authority to ensure military readiness and the health of the Armed Forces. The tension between these two competing interests is even further complicated by a relative dearth of precedent and everchanging, novel science on which the vaccine in question rests. With these challenges in mind, and after careful review of the pleadings,1 the relevant legal and historical authorities, and the entire record, Court shall DENY Plaintiff's [14] Motion for Preliminary Injunction.
Vaccination mandates within the Armed Forces have a long history in this country. "[E]xecutive immunization requirements predate the birth of this country, with George Washington famously requiring members of the Continental Army to be inoculated against smallpox." Feds for Med. Freedom v. Biden , 25 F.4th 354, 357 n.6 (5th Cir. 2022) (Higginson, J., dissenting). Until August 2021, the Navy mandated all servicemembers receive influenza, tetanus, diphtheria, and pertussis vaccines. See ECF 22-6. The Navy also mandated other vaccines depending on the nature and location of a servicemember's mission, including vaccination against anthrax, Japanese encephalitis, yellow fever, typhoid fever, and smallpox, among others. ECF 22-6 at 4. On August 24, 2021, the Secretary of Defense directed the Navy to add another vaccine to the list—vaccination combatting COVID-19. ECF 22-3 at 1. The Secretary of Defense explained that, "[t]o defend this Nation, we need a healthy and ready force." Id. Accordingly, "[a]fter careful consultation with medical experts and military leadership, and with the support of the President [of the United States], [the Secretary of Defense] determined that mandatory vaccination against coronavirus disease 2019 (COVID-19) is necessary to protect the Force and defend the American people." Id.
Consistent with that order, the Secretary of the Navy, on the same day, directed all active duty servicemembers to be fully vaccinated against COVID-19 by November 19, 2022. ECF 22-4 at 1; see Church v. Biden , 573 F. Supp. 3d 118, 128–29 (D.D.C. Nov. 8, 2021). At the same time, the Deputy Chief of Naval Operations for Operations, Plans, and Strategy announced that the Navy would grant medical, religious, and administrative exemptions as necessary. ECF 22-4 at 2. These three exemptions were largely repetitive of prior orders applicable to all vaccines. See ECF 22-7 at 4, 7-8.
Pursuant to the Navy Military Personnel Manual and standing military orders applicable to all requests for religious exemptions, an active-duty servicemember seeking a religious exemption first submits a written request to their commanding officer and provides an assessment by a Navy chaplain regarding the nature and sincerity of the servicemember's religious belief as applied to a particular order or requirement. ECF 22-7 at 8. The servicemember's commander then recommends approval or denial to the Deputy Chief of Naval Operations. Id. The recommendation must include: "(1) the negative effect (if any) of the requested accommodation on the unit's military readiness, health, or safety; (2) the number of servicemembers in the command that have been granted a similar exemption; and (3) if recommending denial, a determination that the denial furthers a compelling government interest and there is no less restrictive means of accommodating the request." Id.
If the Deputy Chief of Naval Operations denies the request, and the servicemember continues to refuse to comply with the order, separation proceedings may begin. Id. at 10. As to religious exemption requests from vaccination, the Government has represented in other cases that, between 2015 and 2021, the Navy only adjudicated 83 such requests. E.g. , Brief for Appellants at *8, U.S. Navy Seals 1-26 v. Biden , 2022 WL 987768, at *8 (Mar. 28, 2022) (No. 22-10077). Between the summer of 2021 and February 2022, the Navy received more than 4000 exemption requests from the COVID-19 vaccine alone. Id. Administrative separation, i.e., discharge under honorable conditions, is currently suspended in light of a nationwide injunction issued by the United States District Court for the Northern District of Texas. See U.S. Navy Seals 1-26 v. Austin , 594 F. Supp. 3d 767, 774–75 (N.D. Tex. Mar. 28, 2022).
Plaintiff is a Special Warfare Operator Chief stationed in Virginia Beach, Virginia. Ex 13 at 2. As part of the Naval Special Warfare ("NSW") community, he conducts especially sensitive, clandestine missions around the world. Id. As his commander explains, NSW personnel "conduct insertions and extractions by sea, air, or land; they capture high-value enemy personnel and terrorists around the world, carry out small-unit direction action missions against military targets; and perform underwater reconnaissance and strategic sabotage." Id. They are, in sum, the elite of the elite of this country's special operations forces. See id.
Because NSW teams are quite small, "[t]he loss of even one member can degrade the[ir] effectiveness ... and may compromise a mission." Id. Plaintiff's commander concludes that Id.
Notwithstanding these medical concerns, Plaintiff submitted a request for a religious exemption from COVID-19 vaccination (and no other medical requirement) on October 15, 2021. ECF 15-1 at 23. The religious basis for Plaintiff's request is, in his words, as follows:
I have searched for as much information as I can find on the [SARS-CoV-2] virus and the [COVID-19] vaccine[s] and I have talked to as many people I can including those with different beliefs from my own and I am continually led to uncertainty and doubt. The vaccine is not a sin and I understand that. My personal convictions are inspired by my study and understanding of the Bible, and personally directed by the true and living God. I am personally convicted [sic] that I should not receive any of the three [COVID]-19 [vaccines then available]. To go against one's convictions is where the issue lies. (James 4:17)[.] If I fail to submit to the personal convictions that the Holy Spirit and Scripture has impressed upon me I will be sinning against God. I have personally searched the Scripture and sough[t] guidance from the Holy Spirit to come to my decision.
Id. at 24. Based on this representation, the Navy chaplain concluded that Plaintiff's "religious beliefs seemed honestly and sincerely held." Id. at 26-27. With a full record before him, Plaintiff's commander "recommended disapproval" concluding that "due to the viral nature of COVID-19 and the lack of alternative means of prevention, mandatory full vaccination is the least restrictive means available to protect the compelling government interest over the individual request." Id. at 22. In the ultimate denial of Plaintiff's request, the Deputy Chief of Naval Operations concluded by stating, "[w]hile every Sailor is welcome to express a religion of choice or none at all, our greater mission sometimes requires reasonable restrictions." Id. at 19. After Plaintiff continued to object to the course of vaccination required, the Navy began separation proceedings on March 17, 2022, six days after Plaintiffs’ complaint was filed. See id. at 42.
Accordingly, on March 25, 2022, Plaintiff filed the instant Motion for Preliminary Injunction, seeking an order halting the separation proceedings and any other adverse action the Navy might take short of separation. More specifically, Plaintiff seeks an injunction of the military-wide COVID-19 vaccine mandate, ECF No. 22-3, and an injunction against the Navy-specific COVID-19 vaccine mandate (NAVADMIN 256/21), ECF No. 22-4, as applied to him.2 ECF No. 14-4. Just as all separation proceedings for religious objection to COVID-19 vaccination are stayed nationwide, so too are the separation proceedings specific to Plaintiff. See ECF No. 21-1 at 8. In his sworn declaration, Plaintiff's commander states...
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