Navy Seal 1 v. Austin

586 F.Supp.3d 1180

NAVY SEAL 1, et al., Plaintiffs,

v.Lloyd AUSTIN, et al., Defendants.

CASE NO. 8:21-cv-2429-SDM-TGW

United States District Court, M.D. Florida, Tampa Division.

Signed February 18, 2022

Mathew D. Staver, Daniel Joseph Schmid, Horatio G. Mihet, Roger K. Gannam, Liberty Counsel, Orlando, FL, Richard L. Mast, Jr., Pro Hac Vice, Liberty Counsel, Lynchburg, VA, for Plaintiffs Navy Seal 1, Navy Seal 2, EOD Officer, Senior Chief Petty Officer, Chaplain, Lieutenant Colonel 1, Lieutenant Colonel 2, Major, Second Lieutenant, Captain, Lance Corporal 1, Lance Corporal 2, National Guardsman, Coast Guard Lieutenant, Technical Sergeant, Colonel.

Mathew D. Staver, Daniel Joseph Schmid, Horatio G. Mihet, Roger K. Gannam, Liberty Counsel, Orlando, FL, for Plaintiff Army Ranger.

Daniel Joseph Schmid, Horatio G. Mihet, Roger K. Gannam, Liberty Counsel, Orlando, FL, for Plaintiffs Commander Surface Warfare Officer, Navy Chief Warrant Officer, Colonel Financial Management Officer, Captain 2, Captain 3, First Lieutenant, Chief Warrant Officer 3, Master Sergeant Sere Specialist, Cadet, Pilot, LCDR Pilot.

Horatio G. Mihet, Roger K. Gannam, Liberty Counsel, Orlando, FL, for Plaintiffs Reserve Lieutenant Colonel, Reserve Lieutenant Colonel 1, Reserve Lieutenant Colonel 2.

Amy Powell, DOJ-Civ, Raleigh, NC, Andrew Evan Carmichael, Zach A. Avallone, Courtney Enlow, Robert Charles Merritt, DOJ-Civ, Civil Division, Federal Programs Branch, Washington, DC, for Defendants Lloyd J. Austin, III, Alejandro N. Mayorkas.

Amy Powell, DOJ-Civ, Raleigh, NC, Courtney Enlow, Robert Charles Merritt, Zach A. Avallone, DOJ-Civ, Civil Division, Federal Programs Branch, Washington, DC, for Defendants Christine Wormuth, Carlos Del Toro, David H. Berger, Frank Kendall.

PRELIMINARY INJUNCTION AND ORDER

STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE

Here is the short version: Expressly applicable to each branch of the federal government, the Religious Freedom Restoration Act (RFRA) commands the military to grant to a service member harboring a sincerely held religious objection to COVID-19 vaccination a religious exemption from the vaccination (1) unless a compelling governmental interest requires the vaccination and (2) unless a good faith evaluation, directed specifically to the singular circumstances of the service member — that is, directed "to the person" requesting the exemption — demonstrates that no less restrictive means is available to the military reasonably to protect the compelling governmental interest. Under the command of RFRA, the military bears the burden of showing both the existence of a compelling governmental interest and the absence of a less restrictive means of reasonably protecting that interest. In the instance of Navy Commander and Lieutenant Colonel 2, the Navy and the Marine Corps have failed manifestly to offer the statutorily required demonstration that no less restrictive means is available, and each of the two service members is entitled to preliminary injunctive relief that (1) permits them, pending a final determination on a complete record, to continue to serve without the vaccination and (2) forbids any punitive or retaliatory measure against either by the military pending a final judgment in this action. The long version follows.

BACKGROUND

Harboring a sincere religious objection to COVID-19 vaccination and denied a religious exemption, Navy Commander Surface Warfare Officer and Lieutenant Colonel 2 (each appearing pseudonymously) move (Doc. 60) for injunctive relief against the military. The defendants oppose (Docs. 23 and 74) the motion. Two orders (Docs. 67 and 85) preserve the status quo for Navy Commander and Lieutenant Colonel 2 pending resolution of a motion for preliminary injunction on behalf of Navy Commander, Lieutenant Colonel 2, the service members appearing in this action, and a putative class comprising service members in each branch of the military.

I. PROCEDURAL POSTURE

On October 15, 2021, several service members in each branch of the military sued on behalf of a putative class and promptly moved to preliminarily enjoin and to temporarily restrain military directives and executive orders requiring COVID-19 vaccination.¹ An October 18, 2021 scheduling order (Doc. 9) states that the plaintiffs may move in an exigent circumstance for relief on behalf of an individual member of the putative class.

After a hearing on the motion for a preliminary injunction, a November 22, 2021 order (Doc. 40) defers resolution of the service members’ claims under RFRA and the First Amendment because each service-member plaintiff remained temporarily exempt from the COVID-19 vaccination requirement pending resolution of a request for a religious exemption and the resolution of any appeal.² The order (Doc. 40) requires, among other things, that the defendants submit every fourteen days beginning January 7, 2022, a notice containing information about, among other things, the number of requests for religious and other exemptions and the number of requests denied after appeal (this reporting requirement was terminated recently). According to the February 4, 2022 notice (Doc. 73), the Navy has denied 81 appeals and granted none, the Marine Corps has denied 119 appeals and granted 3, and the Air Force has denied 443 appeals and granted 1 appeal (and granted 8 initial requests).

On January 20, 2022, the plaintiffs moved (Doc. 49) to amend the complaint to remove President Biden as a defendant, to add as a defendant the head of each branch of the military, to add claims under the APA, and to add plaintiffs. On January 21, 2022, the plaintiffs submitted (Doc. 51) a supplemental memorandum in support of a preliminary injunction on behalf of the putative class of service members.

On February 1, 2022, the plaintiffs moved (Doc. 60) for emergency injunctive relief on behalf of Navy Commander and Lieutenant Colonel 2, each denied a religious exemption after a final appeal and each ordered to accept COVID-19 vaccination within five days. A February 2, 2022 order (Doc. 67) schedules for February 10, 2022, a hearing on further preliminary relief resulting from the emergency motion and enjoins through February 11, 2022, the military's diminishing or altering the current status of these two service members. At the February 10, 2022 hearing, the service members testified, and the defendants filed (Doc. S-91) additional items from the administrative record. To permit review of the administrative record; to preserve the status quo; to permit a reasonable time to evaluate the issues presented during the February 10, 2022 hearing; and for other good cause shown, a February 11, 2022 order (Doc. 85) extends the February 2, 2022 order's injunctive relief through February 18, 2022. Also, a February 13, 2022 order (Doc. 90) requires the defendants to submit for each of the Navy, Marines, and Air Force (1) each letter or memorandum granting a religious exemption (whether granted initially or after appeal), (2) the twenty-five most recent denials after appeal and the underlying denial of the initial request, (3) for each grant or denial the service member's initial request and the service member's written submission beginning the appeal, and (4) anything else the defendants elect to submit in an effort to meet their statutory burden of proof.

II. THE RECORD

On August 23, 2021, the FDA licensed Pfizer's COVID-19 vaccine. The next day, the Secretary of the Department of Defense directed each branch to require of every service member "full vaccination" against COVID-19. (Doc. 1-4 at 1) The secretary's memorandum states that "the Military Departments should use existing policies and procedures to manage mandatory vaccination of [s]ervice members to the extent practicable" and that the vaccination requirement "will be subject to any identified contraindications and any administrative or other exemptions established in Military Department policy." (Doc. 1-4 at 1)

A. Religious exemptions in the Navy and the Marine Corps

Each branch of the military has promulgated a process for a service member to request a religious, medical, or administrative exemption from COVID-19 vaccination. In general, each branch temporarily exempts a service member from the COVID-19 vaccination requirement pending resolution of a request and of any appeal. If the appeal results in denial, each branch requires the service member — within only five days — to decide the life-altering question whether to accept COVID-19 vaccination or face discharge for disobeying an order. Specifically, if the service member fails to accept COVID-19 vaccination within the allotted five days, the branch considers the service member in violation of a lawful order and the commander reports the service member for discharge or other punishment based on the charge of misconduct, moral or professional dereliction, and substandard performance. (Of course, the typical service member cannot as a practical matter obtain judicial relief on only five days’ notice.)

1. Religious exemption in the Navy

Under BUPERINST 1730.11A, a sailor requesting a religious exemption from COVID-19 vaccination must interview with a Navy chaplain, who decides whether to recommend the service member's religious objection as sincere. (Doc. 23-18 ¶ 14) Next, the sailor submits an exemption request to the service member's commander. (Doc. 23-18 ¶ 14) Within seven days after receiving an exemption request, the commander must prepare in accord with MILSPERMAN 1730-020 an endorsement identifying "(1) the negative effect (if any) of the requested accommodation on the unit's military readiness, health, or safety; (2) the number of service members in the command that have been granted a similar exemption; and (3) when recommending a denial, a determination that the denial furthers a compelling government interest and there is no less restrictive means of accommodating the request." (Doc. 23-18 ¶ 14.b) After receiving the commander's endorsement,...