U.S. Navy Seals 1-26 v. Biden

• Decision Date: 28 February 2022
• Docket Number: No. 22-10077,22-10077
• Citation: 27 F.4th 336
• Parties: U.S. NAVY SEALS 1-26; U.S. Navy Special Warfare Combatant Craft Crewmen 1-5; U.S. Navy Explosive Ordnance Disposal Technician 1; U.S. Navy Divers 1-3, Plaintiffs—Appellees, v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States of America; Lloyd Austin, Secretary, U.S. Department of Defense, individually and in his official capacity as United States Secretary of Defense; United States Department of Defense ; Carlos Del Toro, individually and in his official capacity as United States Secretary of the Navy, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

27 F.4th 336

U.S. NAVY SEALS 1-26; U.S. Navy Special Warfare Combatant Craft Crewmen 1-5; U.S. Navy Explosive Ordnance Disposal Technician 1; U.S. Navy Divers 1-3, Plaintiffs—Appellees,

v.Joseph R. BIDEN, Jr., in his official capacity as President of the United States of America; Lloyd Austin, Secretary, U.S. Department of Defense, individually and in his official capacity as United States Secretary of Defense; United States Department of Defense ; Carlos Del Toro, individually and in his official capacity as United States Secretary of the Navy, Defendants—Appellants.

No. 22-10077

United States Court of Appeals, Fifth Circuit.

FILED February 28, 2022

Heather Gebelin Hacker, Andrew Bowman Stephens, Assistant Attorney General, Hacker Stephens, L.L.P., Austin, TX, Michael Berry, Justin E. Butterfield, David J. Hacker, Jeffrey Carl Mateer, Esq., General Counsel, Holly Mischelle Randall, Hiram Stanley Sasser, III, Kelly J. Shackelford, Esq., Chief Counsel, First Liberty Institute, Plano, TX, Jordan E. Pratt, First Liberty Institute, Washington, DC, for Plaintiffs - Appellees

Sarah Wendy Carroll, Casen Ross, Charles Wylie Scarborough, Lowell V. Sturgill, Jr., U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Marleigh D. Dover, Assistant Director, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants - Appellants

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:

The district court preliminarily enjoined the Department of Defense ("DoD"), United States Secretary of Defense Lloyd Austin, and United States Secretary of the Navy Carlos Del Toro from enforcing certain COVID-19 vaccination

requirements against 35 Navy special warfare personnel and prohibited any adverse actions based on their religious accommodation requests.¹ It later declined to stay the injunction. Defendants now seek a partial stay pending appeal insofar as the injunction precludes them from considering Plaintiffs' vaccination statuses "in making deployment, assignment and other operational decisions." The Navy has granted hundreds of medical exemptions from vaccination requirements, allowing those service members to seek medical waivers and become deployable. But it has not accommodated any religious objection to any vaccine in seven years, preventing those seeking such accommodations from even being considered for medical waivers. We DENY Defendants' motion.

I. BACKGROUND

A.

President Biden "direct[ed] the [DoD] to look into how and when they [would] add COVID-19 vaccination

to the list of required vaccinations for members of the military." Thereafter, the DoD and the Navy issued a serious of orders and directives implementing mandatory COVID-19 vaccine requirements.

Pertinent to this case, Secretary Del Toro issued "ALNAV 062/21," which ordered all "active duty Service Members ... to be fully vaccinated within 90 days" and "all Reserve Component Service Members ... to be fully vaccinated within 120 days." Secretary Del Toro's order "exempted from mandatory vaccination

" service members "actively participating in COVID-19 clinical trials." His order warned that "failure to comply is punishable as a violation of a lawful order" and "may result in punitive or adverse administrative action or both." It also authorized the Chief of Naval Operations and Commandant of the Marine Corps "to exercise the full range of administrative and disciplinary actions to hold non-exempt Service Members appropriately accountable." Such actions "include, but [are] not limited to, removal of qualification for advancement, promotions, reenlistment, or continuation, consistent with existing regulations, or otherwise considering vaccination status in personnel actions as appropriate."

The next day, consistent with Secretary Del Toro's order, the Navy issued "NAVADMIN 190/21," which "provides guidance" on implementing the vaccine mandate within the Navy. NAVADMIN 190/21 states that "COVID-19 vaccination

is mandatory for all DoD service members who are not medically or administratively exempt." Religious accommodations fall under administrative exemptions. Again, "service members who are actively participating in COVID-19 clinical trials are exempt from mandatory vaccination

against COVID-19." NAVADMIN 190/21 also specifies that the "COVID Consolidated Disposition Authority (CCDA)" will determine "ultimate disposition" of Navy service members who remain unvaccinated. The CCDA "serve[s] as the central authority for adjudication and will have at his or her disposal the full range of administrative and disciplinary actions."

The Navy, moreover, mandated FDA-approved COVID-19 vaccinations

under its Manual of the Medical Department ("MANMED"). MANMED § 15-105, covering special operations service members, provides: "[special operations] designated personnel refusing to receive recommended vaccines ... based solely on personal or religious beliefs are disqualified. This provision does not pertain to medical contraindications or allergies to vaccine administration." Service members who are "disqualified" under the MANMED have been rendered "non-deployable."

The Commander of Naval Special Warfare Command later issued "Trident Order #12." The order set a deadline of October 17, 2021, for unvaccinated service members to receive their first jab or submit an exemption request. And it provides that "exemptions for medical and/or administrative (including religious) reasons will be adjudicated via service policies." Further, "special operations designated personnel (SEAL and SWCC) refusing to receive recommended vaccines based solely on personal or religious beliefs will still be medically disqualified." But, like MANMED § 15-105(3)(n)(9), Trident Order #12 "does not pertain to medical contraindications or allergies to vaccine

administration." Any "waiver from medical requirements for special operations qualification requires a separate waiver that is in addition to waiver of the COVID-19 vaccine requirement for all service members."

The Navy subsequently issued "NAVADMIN 225/21," designating the Chief of Naval Personnel as the CCDA and providing procedural guidance for administrative disposition of unvaccinated Navy service members. NAVADMIN 225/21 mandates "administrative separation" of all "Navy service members refusing the COVID-19 vaccination

, absent a pending or approved exemption." It also authorizes commanding officers to "to temporarily reassign Navy service members who refuse the COVID-19 vaccine, regardless of exemption status, based on operational readiness or mission requirements." In addition, "Commands shall not allow those refusing the vaccine to promote/advance, reenlist, or execute orders, with the exception of separation orders, until the CCDA has completed disposition of their case." Commanders "shall delay the promotion of any officer" and "withhold the advancement of any enlisted member" who refuses the vaccine. Service members separated for refusing the vaccine "will not be eligible for involuntary separation pay and will be subject to recoupment of any unearned special or incentive pays." The CCDA may also "seek recoupment of applicable bonuses, special and incentive pays, and the cost of training and education for service members refusing the vaccine."

The Navy finally issued "NAVADMIN 256/21" to specify that "service members with approved or pending COVID-19 vaccination

exemption requests shall not be processed for separation or be subject to ... other administrative actions ... due solely to their lack of COVID-19 vaccination." Unvaccinated service members, however, "regardless of exemption status, may be temporarily reassigned ... based on operational readiness and mission requirements." NAVADMIN 256/21 further requires service members whose COVID-19 vaccination

exemption requests are denied to receive the vaccine within five days of the denial, or else they "will be processed for separation and be subject to ... other administrative actions."

B.

Plaintiffs are 35 Navy service members assigned to Naval Special Warfare Command units. They comprise over two dozen SEALs, plus Special Warfare Combatant Craft Crewmen (SWCC), an Ordnance Disposal Technician (EOD), and three Divers (collectively, "Plaintiffs"). In November 2021, they sued President Biden, Secretary Austin, Secretary Del Toro, and the DoD (collectively, "Defendants"), challenging the Navy's COVID-19 vaccine policies, on their face and as applied, under the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq. , and the free exercise clause of the First Amendment.²

Shortly thereafter, Plaintiffs moved for a preliminary injunction. The district court held a hearing at which Plaintiffs presented live testimony and other evidence. We describe in detail the relevant evidence in the record and the district court's factual findings.

i.

As of November 2021, 99.4% of active-duty Navy service members had been fully vaccinated against COVID-19. Before and after vaccines became available, several Plaintiffs deployed overseas and completed missions, while others served as instructors in training commands. Operations continued without issue, as many Plaintiffs practiced mitigation techniques—social distancing, testing, quarantining, etc. Defendants identify no instance where a Plaintiff's vaccination

status—or any service member's vaccination status—compromised a special warfare mission.

The Navy follows a six-phase, 50-step process to adjudicate religious accommodation requests.³ During the first 13 steps, staff members verify the required documents submitted with the request. At steps 14 and 15, staff members add the requesting service member's personal information to a "disapproval template" form. There apparently is no approval template. At step 33, staff members transmit an internal memorandum to Vice Admiral John B. Nowell, requesting that he "sign ... letters disapproving immunization waiver requests based on sincerely held religious beliefs."...