U.S. Navy SEALs 1-26 v. Biden ( 2022 )

Case: 22-10077 Document: 00516220389 Page: 1 Date Filed: 02/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 28, 2022
No. 22-10077
Lyle W. Cayce
Clerk
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,
versus
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.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-1236
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
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No. 22-10077
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
1
At least two other district courts have recently enjoined the same, or similar,
polices with respect to other service members. See Air Force Officer v. Austin, ___ F. Supp.
3d ____, No. 5:22-cv-00009-TES, 2022 WL 468799 (M.D. Ga. Feb. 15, 2022); Seal v.
Biden, No. 8:21-cv-2429-sdm-tgw, 2022 WL 520829 (M.D. Fla. Feb. 18, 2022). Two other
courts found similar challenges non-justiciable. See Church v. Biden, No. 21-2815 (CKK),
2021 WL 5179215 (D.D.C. Nov. 8, 2021); Robert v. Austin, No. 21-cv-02228-RM-STV,
2022 WL 103374 (D. Colo. Jan. 11, 2022).
2
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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.
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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
4
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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
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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
2
Plaintiffs initially brought their claims against Secretaries Austin and Del Toro in
both their individual and official capacities. And they also asserted claims under the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06. They have, however, since
filed an amended complaint against the remaining individual Defendants in their official
capacities alone without bringing any APA claims. President Biden is not named in the
amended complaint.
3
See Deputy Chief of Naval Operations Standard Operating Procedure for
Religious Accommodations (dated Nov. 2021).
6
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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.” At
steps 35 to 38, staff members review the accommodation request and list
details in a spreadsheet with other requests for Vice Admiral Nowell to
review. But by then, the disapproval is fully teed-up: the disapproval letter
has been written; the disapproval and religious accommodation request has
been packaged with similar requests, and the internal memorandum to Vice
Admiral Nowell requesting disapproval has been drafted.
In December 2021, the Navy reported receiving 2,844 requests for
religious accommodations. A more recent report suggests that more than
4,000 active duty and Navy Reserve sailors have submitted such requests.
The Navy has denied them all. Indeed, during the last seven years, the Navy
has not granted a single religious exemption from any vaccination. Yet, with
respect to the COVID-19 vaccine, it has approved at least “10 permanent
medical exemptions, 259 temporary medical exemptions, and 59
administrative exemptions for active duty sailors, along with seven
temporary medical exemptions and 24 administrative exemptions for Navy
Reserve sailors.” At least 17 of the 259 temporary medical exemptions were
granted to service members assigned to Naval Special Warfare.
ii.
Plaintiffs represent various Christian denominations within the
Catholic, Eastern Orthodox, and Protestant Churches. They “each object to
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receiving a COVID-19 vaccination based on their sincerely held religious
beliefs.” 4
Plaintiffs each filed a request for a religious accommodation, which
describes his or her sincere religious beliefs and the substantial burden placed
on them by the Navy’s vaccine mandate. Many are supported by chaplains’
memoranda confirming the basis and sincerity of Plaintiffs’ beliefs and
positions with respect to the COVID-19 vaccine.
For purposes of this litigation, Plaintiffs also filed declarations,
confirming their religious beliefs and emphasizing that they do not object to
undertaking COVID-19 mitigation measures such as masking, social
distancing, and regular testing. and their experiences during the
accommodation-request process.
The declarations also describe their experiences during the religious
accommodation process. Various commanders told several Plaintiffs that
they risked losing their special warfare device, the SEAL Trident, if they
requested a religious accommodation. Many were also declared “medically
disqualified,” or “non-deployable,” simply as a result of submitting their
requests. Many Plaintiffs have also become ineligible for travel, transfer to
other posts including trainings, and advancement in leadership simply
because they are unvaccinated and have requested religious
accommodations. For example, U.S. Navy SEAL 13 was removed from his
leadership position, setting him back at least two years in progressing to the
next rank. And U.S. Navy Special Warfare Combatant Craft Crewman 1 was
denied training and told by a commander that “the Navy does not want to
4
Their objections include, inter alia, the vaccines’ ties to aborted fetal cell lines,
divine instruction not to receive the vaccine, and the mRNA vaccines’ altering the divine
creation of their body by unnaturally inducing production of spike proteins.
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spend additional money training someone it is going to lose.” Plaintiffs
suggest that if the Navy discharges them and seeks recoupment of their
training and education costs, those expenses could exceed one million dollars
each.
Plaintiffs claim their accommodation requests are futile because
denial is a predetermined outcome. U.S. Navy SEAL 2’s chain of command
advised him that “all religious accommodation requests will be denied,”
because “senior leadership . . . has no patience or tolerance for service
members who refuse COVID-19 vaccination for religious reasons and want
them out of the SEAL community,” and that “even if a legal challenge is
somehow successful, the senior leadership of Naval Special Warfare will
remove [his] special warfare designation.” U.S. Navy SEAL 5 averred that
“[n]umerous comments from [his] chain of command indicate[d] . . . that
there [would] be a blanket denial of all religious accommodation requests
regarding COVID-19 vaccination.” US Navy SEAL 8 averred that his
“chain of command . . . made it clear that [his] request [would] not be
approved and . . . provided [him] with information on how to prepared for
separation from the U.S. Navy.” U.S. Navy SEAL 11 declared that during a
chief’s meeting, his command master chief told him that “anyone not
receiving the COVID-19 vaccine is an ‘acceptable loss’ to the Naval Special
Warfare (NSW) community” and the “legal department used language such
as ‘when they get denied,’ not ‘if they get denied.’”
iii.
Three Plaintiffs testified at the preliminary injunction hearing. First,
U.S. Navy SEAL 3 is stationed as an instructor for a medical training course
in Mississippi. His missions and duties have been accomplished successfully
since 2020 notwithstanding COVID-19. His chaplain supported his request
for religious accommodation, and his commanding officer recommended
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approval. In doing so, his commanding officer explained that “[t]he training
environment [of the command] often requires close quarters contact for
prolonged periods of time, however, successful mitigation measures have
been implemented since the onset of COVID-19 to ensure the safety of the
staff and students.” Further, “[t]he cumulative impact of repeated
accommodations of religious practices of a similar nature would mean my
command is still able to safely accomplish its mission and protect the health
and safety of its members”(emphasis added). While his request was pending,
U.S. Navy SEAL 3 was removed from his duty as an instructor to prepare for
separation.
As U.S. Navy SEAL 3’s request moved up the chain of command, the
Commander of Naval Special Warfare recommended disapproval without
explanation. The Deputy Chief of Naval Operations then formally
disapproved his request. He explained in generic terms that U.S. Navy SEAL
3 would “inevitably be expected to live and work in close proximity with [his]
shipmates,” and disapproval was “the least restrictive means available to
preserve the [DoD’s] compelling interest in military readiness, mission
accomplishment and the health and safety of military Service Members.”
The disapproval offered no explanation specific to U.S. Navy SEAL 3’s
request.
Second, U.S. Navy SEAL 2 is also stationed as an instructor for a
special operations tactical program in Mississippi. He explained that teams
around the country have deployed and were “able to successfully accomplish
their mission on those deployments through other mitigation tactics with
respect to COVID-19 before the vaccine.” And his specific training
command has successfully accomplished its missions notwithstanding
COVID-19.
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U.S. Navy SEAL 2’s chaplain and two Catholic bishops supported his
accommodation request. His commanding officer also recommended
approval, for the same reasons stated in U.S. Navy SEAL 3’s recommended
approval. But the Commander of Naval Special Warfare recommended
disapproval without explanation—as he did for U.S. Navy SEAL 3. The
Deputy Chief of Naval Operations subsequently disapproved U.S. Navy
SEAL 2’s request using the same boilerplate disapproval form with no
information specific to his request. U.S. Navy SEAL 2 testified that he had
“seen a number of these denial letters” and “[e]very one of them [he has]
seen [is] identical.” His appeal remains pending.
U.S. Navy SEAL 2 testified to adverse actions taken against
unvaccinated service members requesting religious accommodations. He
explained that “personnel from different commands have been relieved of
their milestone positions that, you know, essentially railroad their careers.”
Further, service members “have been pulled from their commands,” which
can set their careers back two or three years, and “been made to do menial
labor tasks, cleaners, sweeping clean grounds, in a temporary assigned duty
from their actual parent command.”
Third, U.S. Navy EOD Technician 1 testified that he deployed to
South Korea in support of a special operations command in early 2020 during
a significant COVID-19 outbreak. His team completed 76 joint service
engagements with 21 different U.S. and Korean partner forces, all while
maintaining effective COVID-19 mitigation tactics in compliance with CDC
guidelines. He even received a deployment joint service accommodation
medal from the special operations command in Korea for COVID-19
mitigation.
U.S. Navy EOD Technician 1 met with his superiors to discuss his
religious accommodation request and his commanding officer’s position,
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which was to deny it. They told him that if he received an accommodation,
“they probably could not find a place for [him] within the community as a
senior enlisted member.” He believes he “was being coerced into receiving
the vaccine.” They asked, “with [his] religious beliefs, if [he] thought that
martyrs would be remembered.”
The Commanding Officer of the Naval School EOD recommended
disapproval of U.S. Navy EOD Technician 1’s request, explaining that his
“reluctance to obtain vaccination has the potential to create total force health
ramifications” due to his “close quarters, hands-on training that cannot be
mitigated with COVID-19 protocols.” Without a fully vaccinated staff and
student population, the recommendation explained, the unit “risk[ed] not
being able to fully execute its mission.” The Deputy Chief of Naval
Operations subsequently disapproved the accommodation request on the
same boilerplate form used to disapprove the requests of U.S. Navy SEALs
2 and 3.
iv.
Following the hearing, the district court preliminarily enjoined
Secretary Austin, Secretary Del Toro, and the DoD from “applying
MANMED § 15-105(3)(n)(9); NAVADMIN 225/21; Trident Order #12;
and NAVADMIN 256/21 to Plaintiffs.” 5 U.S. Navy Seals 1–26 v. Biden, No.
4:21-cv-01236-O, 2022 WL 34443, *14 (N.D. Tex. Jan. 3, 2022) (O’Connor,
J.). It further enjoined those Defendants “from taking any adverse action
against Plaintiffs on the basis of Plaintiffs’ requests for religious
accommodation.” Id. The court excused Plaintiffs’ failure to exhaust
military remedies as futile, finding the Navy’s religious accommodation
process is “an empty formality” because “the denial of each request is
5
The district court also dismissed President Biden from the suit.
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predetermined.” Id. at *4; see also id. at *1 (describing process as “theater”
and finding the Navy “rubber stamps each denial”); id. at *5 (“[T]he
Plaintiffs’ requests are denied the moment they begin.”). As to Plaintiffs’
likelihood of success on their RFRA claims, 6 the court found that Defendants
could not show a compelling interest in vaccinating Plaintiffs because the
religious accommodation process lacks “individualized assessment” and is
underinclusive, “includ[ing] carveouts for those participating in clinical
trials and those with medical contraindications and allergies to vaccines,” but
not those with religious objections. Id. at *10. Defendants filed a timely
interlocutory appeal.
After the preliminary injunction took effect, the Navy formally denied
U.S. Navy SEAL 16’s appeal of his initially rejected religious accommodation
request. The denial appears to be a boilerplate letter, mentioning nothing
specific about SEAL 16’s request. Plaintiffs submit that “SEAL 24 has yet
to receive his denial, but his command informed him that his appeal was
denied on February 11.”
v.
Defendants moved the district court to stay the preliminary injunction
“to the extent the order precludes Defendants from making the assignment
and reassignment decisions that the military deems appropriate, taking into
account Plaintiffs’ vaccination status, including with respect to deployment
and training.” The court denied the motion, but it clarified that the
preliminary injunction:
6
The district court also concluded that the Defendants’ actions violated the
Plaintiffs’ First Amendment right to free exercise of religion. We need not review that
portion of the district court’s ruling.
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[does] not require[] Defendants to make any particular
personnel assignments. All strategic decisions remain in the
hands of the Navy. Rather, the preliminary injunction simply
prohibits adverse action against Plaintiffs based on their
requests for religious accommodation. This Court will not—
and cannot—require the Navy to place a particular SEAL in a
particular training program. But it can—and must—prevent
the Navy from taking punitive action against that SEAL by
blocking him from the training program he would otherwise
attend.
Defendants subsequently moved this court to partially stay the
preliminary injunction pending appeal “insofar as it precludes the Navy from
considering plaintiffs’ vaccination status in making deployment, assignment,
and other operational decisions.” 7 They maintain that “[f]orcing the Navy
to deploy plaintiffs while they are unvaccinated threatens the success of
critical missions and needlessly endangers the health and safety of other
service members.”
II. Discussion
“Before addressing the merits, we must be sure that this is a justiciable
case or controversy under Article III.” Holder v. Humanitarian Law Project,
561 U.S. 1, 15, 130 S. Ct. 2705, 2717 (2010). If it is not, our inquiry will end.
If it is, then we must consider whether Defendants have satisfied the four
factors required to grant a stay pending appeal. See Nken v. Holder, 556 U.S.
418, 426, 129 S. Ct. 1749, 1756 (2009) (quoting Hilton v. Braunskill, 481 U.S.
7While the interlocutory appeal and emergency motion have been pending in this
court, proceedings in the district court continue. Plaintiffs sought class certification and
moved for a class-wide preliminary injunction. They also sought a show cause order,
arguing that “Defendants are disregarding and willfully violating [the preliminary
injunction] by continuing to apply the same policies and continuing to impose the same
injuries on Plaintiffs that initially warranted injunctive relief[.]” Defendants have
meanwhile moved to dismiss or, alternatively, transfer venue.
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770, 776, 107 S. Ct. 2113, 2119 (1987)). This dispute is justiciable. But
Defendants have not carried their burden to warrant the issuance of a stay.
A.
Congress rendered justiciable Plaintiffs’ claims under RFRA, which
applies to every “branch, department, agency, instrumentality, and official
(or other person acting under color of law) of the United States[.]”
42 U.S.C. § 2000bb-2(1). RFRA, in turn, sets the standards binding every
department of the United States to recognize and accommodate sincerely
held religious beliefs. It undoubtedly “applies in the military context.”
United States v. Sterling, 75 M.J. 407, 410 (C.A.A.F. 2016), cert. denied,
137 S. Ct. 2212 (2017). This makes sense because service members
“experience increased needs for religion as the result of being uprooted from
their home environments, transported often thousands of miles to territories
entirely strange to them, and confronted there with new stresses that would
not otherwise have been encountered if they had remained at home.” Katcoff
v. Marsh, 755 F.2d 223, 227 (2nd Cir. 1985). Federal courts are therefore
empowered to adjudicate RFRA’s application to these Plaintiffs.
Notwithstanding RFRA’s broad scope, the district court below, as
well as other courts, have believed themselves bound by a judicial abstention
doctrine created in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971). In that
case, the court sought to identify situations in which federal courts, faced
with claims implicating internal military affairs, must withhold adjudication
in favor of military decision-making. Mindes abstention is rooted in the
federal common law principle of “comity.” Mindes, 453 F.2d at 199. But it
is likely that, following RFRA’s enactment, abstention based on the Mindes
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test is no longer permissible. 8 RFRA “operates as a kind of super statute,
displacing the normal operation of other federal laws[.]” Bostock v. Clayton
County, 140 S. Ct. 1731, 1754 (2020). It would not be a stretch to conclude
that RFRA must also displace a judge-created abstention doctrine. “[W]hen
Congress addresses a question previously governed by a decision rested on
federal common law the need for such an unusual exercise of lawmaking by
federal courts disappears.” City of Milwaukee v. Illinois, 451 U.S. 304, 314,
101 S. Ct. 1784, 1791 (1981).
In an abundance of caution and deferring to circuit precedent,
however, we consider whether Mindes abstention ought to apply here.
Mindes requires courts to “examine the substance of [a plaintiff’s] allegation
[implicating internal military affairs] in light of the policy reasons behind
nonreview of military matters.” 9 453 F.2d at 201. In doing so, courts must
first determine whether “[t]he plaintiff has alleged a deprivation of
constitutional rights or that the military violated statutes or its own
regulations[.]” Meister v. Tex. Adjutant Gen.’s Dep’t, 233 F.3d 332, 339 (5th
Cir. 2000) (citing Mindes, 453 F.2d at 201). Courts must next assess whether
the plaintiff has exhausted all available intra-service corrective measures.
Mindes, 453 F.2d at 201. If the plaintiff satisfies both criteria, then the court
considers a series of factors, which amount to a synopsis of pre-Mendes case
8
A respected treatise disagrees with Mindes on other grounds, stating that “[t]here
is nothing in the power of Congress to make rules for the government and regulation of the
land and naval forces, nor in the powers of the President as commander in chief, that ousts
the power of courts to protect the constitutional rights of individuals against improper
military actions.” 13C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2942 n.80 (3d ed. Apr. 2021 update).
9
Among a number of reasons for imposing an exhaustion requirement, the court
stated that “the greatest reluctance to accord judicial review [of internal military affairs]
has stemmed from the proper concern that such review might stultify the military in the
performance of its vital mission.” Id. at 199.
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law that had adjudicated claims arising from military service: (1) “[t]he
nature and strength of the plaintiff’s challenge to the military
determination[;]” (2) “[t]he potential injury to the plaintiff if review is
refused[;]” (3) “[t]he type and degree of anticipated interference with the
military function[;]” and (4) “[t]he extent to which the exercise of military
expertise or discretion is involved.” Id. at 201-02.
i.
Plaintiffs satisfy the first threshold Mendes inquiry because they allege
constitutional violations of the First Amendment and RFRA, which “secures
Congress’ view of the right to free exercise under the First Amendment[.]”
Tanzin v. Tanvir, 141 S. Ct. 486, 489 (2020).
With respect to the second inquiry, this court has held that “[i]n the
military context, the exhaustion requirement promotes the efficient
operation of the military’s judicial and administrative systems, allowing the
military an opportunity to fully exercise its own expertise and discretion prior
to any civilian court review.” Von Hoffburg v. Alexander, 615 F.2d 633, 637-
38 (5th Cir. 1980) (citing Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974)).
Nonetheless, exhaustion is unnecessary if, inter alia, the administrative
remedy is futile and plaintiffs raise substantial constitutional claims. Id. at
638 (citations omitted).
Plaintiffs are exempted from exhausting their administrative remedies
for both of these reasons. 10 The Navy has not accommodated any religious
request to abstain from any vaccination in seven years, and to date it has
denied all religiously based claims for exemption from COVID-19
10
The two Plaintiffs whose appeals have been finally adjudicated require no such
exemption, so this analysis only pertains to the 33 who have not received any final
determinations.
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vaccination. It is true that futility is not a function of the likely ultimate
success of administrative exhaustion. But evidence, recited previously and
not meaningfully challenged here, suggests that the Navy has effectively
stacked the deck against even those exemptions supported by Plaintiffs’
immediate commanding officers and military chaplains. This is sufficiently
probative of futility. 11 Further, as explained more fully below, Plaintiffs raise
substantial, legally clear-cut questions under RFRA. Courts are specifically
equipped to address RFRA claims and, by the same token, the issues are less
suitable for administrative adjudication. Plaintiffs have thus satisfied the
threshold criteria required by Mindes. But a final justiciability determination
depends on considering the four additional Mindes points.
ii.
The district court determined that each of the four additional Mindes
considerations favors justiciability. We agree.
The constitutional underpinnings and merit of Plaintiffs’ claims weigh
in favor of granting judicial review. Constitutional claims are “normally
more important than those having only a statutory or regulatory base[.]”
Mindes, 453 F.2d at 201. Indeed, this court has favorably cited the Ninth
Circuit’s determination that “[r]esolving a claim founded solely upon a
constitutional right is singularly suited to a judicial forum and clearly
inappropriate to an administrative board.” Downen v. Warner, 481 F.2d 642,
643 (9th Cir. 1973); see Von Hoffburg, 615 F.2d at 638 (citing Downen,
11
Unlike in this case, the Marines in Church v. Biden “advanced no argument or
evidence demonstrating that obtaining review of any future discipline or removal pursuant
to ordinary military review procedures would be futile or inadequate.” 2021 WL 5179215,
at *11. Similarly, the court in Robert v. Austin, found that “Plaintiffs’ contention that they
may be subject to discipline for refusing to take a vaccine appear[ed] to be based on nothing
more than speculation.” 2022 WL 103374, at *3. Plaintiffs here have done the exact
opposite.
18
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No. 22-10077
481 F.2d at 643). This is especially so when a plaintiff’s claims are “founded
on infringement of specific constitutional rights[.]” NeSmith v. Fulton,
615 F.2d 196, 201-02 (5th Cir. 1980) (citations omitted). Plaintiffs allege
specific, and far from frivolous, violations of their free exercise rights under
both the First Amendment and RFRA. Thus, the nature and strength of
Plaintiffs’ claims weigh in favor of judicial resolution.
Plaintiffs also face irreparable harm if judicial review is denied. “In
general, a harm is irreparable where there is no adequate remedy at law, such
as monetary damages.” Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011)
(citation omitted). “The loss of First Amendment freedoms, for even
minimal periods of time unquestionably constitutes irreparable injury.”
Opulent Life Church v. City of Holly Springs Miss., 697 F.3d 279, 295 (5th Cir.
2012) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976)
(plurality opinion)). “This principle applies with equal force to the violation
of [RFRA] rights because [RFRA] enforces First Amendment freedoms, and
the statute requires courts to construe it broadly to protect religious
exercise.” 12 Id. (citations omitted). At base, Plaintiffs are staring down even
more than “a choice between their job(s) and their jab(s).” BST Holdings,
L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021). By pitting their
consciences against their livelihoods, the vaccine requirements would crush
Plaintiffs’ free exercise of religion.
12
Opulent Life Church involved claims under Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq., but “[b]oth RFRA
and RLUIPA impose essentially the same requirements as Sherbert [v. Verner, 374 U.S. 398,
83 S. Ct. 1790 (1963)]” Fulton v. City of Phila., 141 S. Ct. 1868, 1922 (2021) (Barrett, J.,
concurring); see also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 695, 134 S. Ct. 2751,
2761 (2014) (citation omitted) (RLUIPA “imposes the same general test as RFRA but on
a more limited category of governmental actions.”).
19
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No. 22-10077
The most problematic of the Mindes considerations is whether judicial
review of Plaintiffs’ claims would seriously impede the Navy’s performance
of its vital duties. Because “there will always be some interference when
review is granted,” courts ought to abstain only where “the interference
would be such as to seriously impede the military in the performance of vital
duties[.]” Mindes, 453 F.2d at 201. We are aware of the Navy’s general
objection that federal court resolution of these claims “cause[s] direct and
immediate impact to mission execution.” 13 But the Navy acknowledges that
it has granted hundreds of medical exemptions from the COVID-19 vaccine,
at least 17 of which were temporary medical exemptions for those in Naval
Special Warfare. 14 Only 35 Plaintiffs seek religious accommodations here.
And “5,035 active component and 2,960 Ready Reserve sailors” remained
unvaccinated as of January 27, 2022. It is therefore “illogical . . . that
Plaintiff[s’] religious-based refusal to take a COVID-19 vaccine would
‘seriously impede’ military function when the [Navy] has [over 5,000]
service members still on duty who are just as unvaccinated as [the
Plaintiffs].” 15 Air Force Officer, 2022 WL 468799, at *7. In fact, Vice Admiral
13
The commanding officer of two Plaintiffs, however, averred that “the
cumulative impact of repeated accommodations of religious practices . . . would mean [his]
command is still able to safely accomplish its mission and protect the health and safety of
its members.”
14
The Navy’s willingness to grant hundreds of medical exemptions undermines its
reliance on decisions like Goldman v. Weinberger, 475 U.S. 503, 106 S. Ct. 1310 (1986),
abrogated by 10 U.S.C. § 774(a)-(b). The Goldman court held that “the First Amendment
does not require the military to accommodate [wearing a yarmulke] in the face of its view
that they would detract from the uniformity sought by the dress regulations.” Id. at
475 U.S. at 509-10, 106 S. Ct. at 1314. The Navy is currently 99.4% uniform in its COVID-
19 vaccination status. To the extent that the remaining 0.6% are not uniform, the
exemptions granted by the Navy belie its insistence on uniformity in this case.
15
The Navy had formally discharged 45 sailors for refusing the COVID-19 vaccine
as of January 27, 2022.
20
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No. 22-10077
William Merz recently observed that during operations conducted with fully
vaccinated personnel, the Omicron variant in particular is “coming and going
all the time, [in] very small numbers, and [with] really no operational
impact[.]” 16 Significantly, the Navy recently aligned its testing and isolation
guidelines with updated, looser CDC protocols, which recommend isolation
for those who test positive only “for five days or until symptoms have
cleared, depending on which is longer.” Such individuals then only have to
“wear a mask for an additional five days.” Thus, “Navy teams are [] very,
very attuned to watching their indications and reacting to [the virus].” 17
Finally, the extent to which military expertise or discretion is involved
does not militate against judicial review. “Courts should defer to the
superior knowledge and experience of professionals in matters such as
promotions or orders directly related to specific military functions.” Mindes,
453 F.2d at 201-02. To be sure, “[t]he complex, subtle, and professional
decisions as to the composition, training, equipping, and control of a military
force are essentially professional military judgments[.]” Gilligan v. Morgan,
413 U.S. 1, 10, 93 S. Ct. 2440, 2446 (1973) The Navy may permissibly
classify any number of Plaintiffs as deployable or non-deployable for a wide
variety of reasons. But if the Navy’s plan is to ignore RFRA’s protections,
as it seems to be on the record before us, courts must intervene because
16
Defendants insist that this quotation is taken out of context. But the “context”
they emphasize is based on the article’s summary of Admiral Merz’s sentiments, not the
words of Admiral Merz himself. We rely on the admiral’s quoted words.
17
Also noteworthy concerning the comparative efficacy of vaccination is that the
USS Milwaukee was “sidelined” in December 2021 by a COVID-19 outbreak despite
having a fully vaccinated crew; and over 15 members of one Plaintiff’s entirely vaccinated
detachment contracted, or were exposed to, COVID-19 during a training exercise.
21
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No. 22-10077
“[g]enerals don’t make good judges—especially when it comes to nuanced
constitutional issues.” 18 Air Force Officer, 2022 WL 468799, at *8.
Accordingly, even under Mindes, Plaintiffs’ claims are justiciable.
B.
When considering whether to grant a stay pending appeal, a court
must consider:
o First, whether the stay applicants have made a strong
showing that they are likely to succeed on the merits;
o Second, whether the applicants will be irreparably harmed
absent a stay;
o Third, whether issuance of the stay will substantially injure
the other parties; and
o Fourth, where the public interest lies.
Nken, 556 U.S. at 426, 129 S. Ct. 1756 (quoting Hilton, 481 U.S. at 776,
107 S. Ct. at 2119). The first two factors “are the most critical.” Id. at 434.
i.
Defendants argue that they are likely to prevail because Plaintiffs’
claims are non-justiciable and otherwise lack merit. But we reject non-
justiciability, and the district court painstakingly explained why, at a
minimum, their RFRA claims are meritorious. We elaborate on the district
court’s reasoning.
As the Supreme Court has noted, RFRA affords even “greater
protection for religious exercise than is available under the First
Amendment[]” and provides that the:
18
Judge Tilman E. Self III is a former Army artillery officer. Id. at *5.
22
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No. 22-10077
Government may substantially burden a person’s exercise of
religion only if it demonstrates that application of the burden
to the person—(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.
Holt v. Hobbs, 574 U.S. 352, 357, 135 S. Ct. 853, 859-60 (2015); 42 U.S.C.
§ 2000bb-1. “[T]he ‘exercise of religion’ often involves not only belief and
profession but the performance of (or abstention from) physical acts[.]”
Employment Div. v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 1599 (1990).
And “a government action or regulation creates a ‘substantial burden’ on a
religious exercise if it truly pressures the adherent to significantly modify his
religious behavior and significantly violates his religious beliefs.” Adkins v.
Kaspar, 393 F.3d 559, 570 (5th Cir. 2004) (involving RLUIPA). Once a
plaintiff demonstrates a substantial burden on his exercise of religion,
“RFRA requires the Government to demonstrate that the compelling
interest test is satisfied through application of the challenged law ‘to the
person’—the particular claimant whose sincere exercise of religion is being
substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 430-431, 126 S. Ct. 1211, 1220 (2006) (quoting
42 U.S.C. § 2000bb-1(b)). This is a “high bar.” Little Sisters of the Poor
Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2392 (2020) (Alito,
J., concurring). This already high bar is raised even higher “[w]here a
regulation already provides an exception from the law for a particular
group[.]” McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 472 (5th
Cir. 2014) (citations omitted); see also Fulton, 141 S. Ct. at 1878-83.
The Navy does not even dispute that its COVID-19 vaccination
requirements substantially burden each Plaintiff’s free exercise of religion,
but the nature of the injury bears emphasis. Plaintiffs have thoughtfully
articulated their sincere religious objections to taking the vaccine itself.
Accepting the vaccine would directly burden their respective faiths by forcing
23
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No. 22-10077
them to inject an unremovable substance at odds with their most profound
convictions. This injury would outlast their military service, making the
decision whether to acquiesce far more difficult than just choosing between
“their job(s) and their jab(s).” BST Holdings, 17 F.4th at 618. The vaccine
requirements principally compete against their faiths and secondarily against
their livelihoods. These circumstances impose a substantial burden on
Plaintiffs. See Little Sisters of the Poor, 140 S. Ct. at 2391 (contraceptive
mandate imposed a substantial burden on employers that had religious
objections to contraceptives and believed that complying would make them
complicit in the provision of contraceptives); see also Holt, 574 U.S. at 361,
135 S. Ct. at 862 (RLUIPA context) (a grooming policy “substantially
burden[ed] [a prisoner’s] religious exercise[]” where he “face[d] serious
disciplinary action[]” for contravening that policy).
In an attempt to subordinate Plaintiffs’ protected interest, the Navy
focuses instead on its institutional interests. Defendants’ position is that:
The Navy has an extraordinarily compelling interest in
requiring that service members generally—and these plaintiffs
in particular—be vaccinated against COVID-19, both (1) to
reduce the risk that they become seriously ill and jeopardize the
success of critical missions and (2) to protect the health of their
fellow service members.
The Navy has been extraordinarily successful in vaccinating service
members, as at least 99.4% of whom are vaccinated. 19 But that general interest
is nevertheless insufficient under RFRA. The Navy must instead
“scrutinize[] the asserted harm of granting specific exemptions to particular
religious claimants.” O Centro, 546 U.S., at 431, 126 S. Ct. at 1220. “The
19
As the district court explained in denying Defendants’ stay motion, statistically
speaking, “vaccinated servicemembers are far more likely to encounter other unvaccinated
individuals off-base among the general public than among their ranks.”
24
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No. 22-10077
question, then, is not whether [the Navy has] a compelling interest in
enforcing its [vaccination] policies generally, but whether it has such an
interest in denying an exception to [each Plaintiff].” Fulton, 141 S. Ct. at
1881. And RFRA “demands much more[]” than deferring to “officials’
mere say-so that they could not accommodate [a plaintiff’s religious
accommodation] request.” Holt, 574 U.S. at 369, 135 S. Ct. at 866 (RLUIPA
context). That is because “only the gravest abuses, endangering paramount
interests, give occasion for permissible limitation[]” on the free exercise of
religion. Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 1795 (1963)
(internal quotation marks and citations omitted). 20
Defendants have not demonstrated “paramount interests” that
justify vaccinating these 35 Plaintiffs against COVID-19 in violation of their
religious beliefs. They insist that “given the small units and remote locations
in which special-operations forces typically operate, military commanders
have determined that unvaccinated service members are at significantly
higher risk of becoming severely ill from COVID-19 and are therefore
medically unqualified to deploy.” But “[r]outine [Naval Special Warfare]
mission risks include everything from gunshot wounds, blast injuries,
parachute accidents, dive injuries, aircraft emergencies, and vehicle rollovers
to animal bites, swimming or diving in polluted waters, and breathing toxic
chemical fumes.” There is no evidence that the Navy has evacuated anyone
from such missions due to COVID-19 since it instituted the vaccine mandate,
but Plaintiffs engage in life-threatening actions that may create risks of equal
or greater magnitude than the virus.
20
Sherbert, of course, formed the foundation for RFRA. See Fulton, 141 S. Ct. at
1922 (Barrett, J., concurring).
25
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No. 22-10077
More specifically, multiple Plaintiffs successfully deployed overseas
before and after the vaccine became available, and one even received a Joint
Service Commendation Medal for “safely navigating restricted movement
and distancing requirements” while deployed in South Korea between
January and June 2020. 21 Plaintiffs also trained other SEALs preparing for
deployments at various points during the pandemic while remaining
unvaccinated.
The Navy’s alleged compelling interest is further undermined by
other salient facts. It has granted temporary medical exemptions to 17 Special
Warfare members, yet no reason is given for differentiating those service
members from Plaintiffs. That renders the vaccine requirements
“underinclusive.” Navy Seals 1–26, 2022 WL 34443, at *10. And
“underinclusiveness . . . is often regarded as a telltale sign that the
government’s interest in enacting a liberty-restraining pronouncement is not
in fact ‘compelling.’ ” BST Holdings, 17 F.4th at 616 (citing Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542-46, 113 S. Ct.
2217, 2231-34(1993)); See also Holt, 574 U.S. at 367, 135 S. Ct. at 865(RLUIPA context) (a policy was substantially underinclusive where a prison
“denied petitioner’s request to grow a 1/2-inch beard [for religious reasons]
[while permitting] prisoners with a dermatological condition to grow 1/4-
inch beards.”). Moreover, in none of the letters denying religious
accommodations to these Plaintiffs has the Navy articulated Plaintiff-specific
reasons for its decisions. 22 Further evidencing that there is a pattern of
21
During this deployment, Navy EOD Technician 1 completed 76 joint service
engagements with 21 U.S. and Korean partner forces, all while maintaining effective
COVID-19 mitigation tactics in compliance with CDC guidelines.
22
On the contrary, some of the remarks uttered by superior officers to Plaintiffs
could be regarded as outright hostile to their desire for religious accommodations. See
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1732 (2018).
26
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No. 22-10077
disregard for RFRA rights rather than individualized consideration of
Plaintiffs’ requests, the Navy admits it has not granted a single religious
accommodation. Yet surely, had the Navy been conscientiously adhering to
RFRA, it could have adopted least restrictive means to accommodate
religious objections against forced vaccinations, for instance, to benefit
personnel working from desks, warehouses, or remote locations.
Considering the record as a whole, we agree with the district court that
Defendants have not shown a compelling interest to deny religious
accommodations to each of these 35 Plaintiffs. Indeed, the “marginal
interest” in vaccinating each Plaintiff appears to be negligible; consequently,
Defendants lack a sufficiently compelling interest to vaccinate Plaintiffs.
Hobby Lobby, 573 U.S. at 727, 134 S. Ct. at 2779 (citing O Centro, 546 U.S. at
431, 126 S. Ct.at 1220-21).
In the absence of a compelling interest, the first Nken factor weighs
against granting the requested partial stay.
ii.
Defendants also contend that “[b]y requiring the Navy to disregard
plaintiffs’ unvaccinated status in making deployment, assignment, and other
operational decisions, the preliminary injunction irreparably damages the
Navy and the public.” We disagree.
Despite their concerns, Defendants do not face irreparable harm in
the absence of a stay. “[B]ecause the Government has requested a stay
pending completion of appellate proceedings, the relevant question is
whether the Government will be irreparably harmed during the pendency of the
appeal.” State v. Biden, 10 F.4th 538, 559 (5th Cir. 2021) (emphasis in
original). Defendants emphasize that the Navy “must deploy only service
members who are at the least risk of becoming severely ill, leaving their units
shorthanded and potentially unable to complete missions.” In any event, the
27
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No. 22-10077
district court clarified that the preliminary injunction “simply prohibits
adverse action against Plaintiffs based on their requests for religious
accommodation.” Defendants therefore remain able to make decisions
based on other neutral factors. And “[e]ven if [Defendants are] correct that
long-term compliance with the district court’s injunction would cause
irreparable harm, [they] present[] no reason to think that [they] cannot
comply with the district court’s [injunction] while the appeal proceeds.” 23
Biden, 10 F.4th at 559.
iii.
Partially staying the preliminary injunction pending appeal would
substantially harm Plaintiffs. As we noted, Plaintiffs’ First Amendment
freedoms are seriously infringed by the Navy’s vaccine requirements. See
BST Holdings, 17 F.4th at 618; see also Holt, 574 U.S. at 361, 135 S. Ct. at 862;
Little Sisters of the Poor, 140 S. Ct. at 2391. These infringements
“unquestionably constitute[] irreparable injur[ies].” Opulent Life Church,
697 F.3d at 295 (quoting Elrod, 427 U.S. at 373, 96 S. Ct. at 2690). No further
showing is necessary for Plaintiffs to demonstrate that even partially staying
the injunction would irreparably harm them.
iv.
The issuance of Defendants’ requested stay would also disserve the
public interest. Defendants contend that “[i]n cases involving the
government, the harm to the government and the public interest merge.”
23
Any injury to Defendants is also “outweighed by [Plaintiffs’] strong likelihood
of success on the merits.” Freedom From Religion Found., Inc. v. Mack, 4 F.4th 306, 316 (5th
Cir. 2021) (collecting cases). Relatedly, if the vaccine requirements violate Plaintiffs’ First
Amendment rights—as they have demonstrated is likely at least under RFRA—then the
Navy’s claimed harm “is really ‘no harm at all.’” McDonald v. Longley, 4 F.4th 229, 254
(5th Cir. 2021) (quoting Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006)).
28
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No. 22-10077
That is mistaken. Those factors merge “when the Government is the
opposing party[,]” i.e., when the government is not the party applying for a
stay. Nken, 556 U.S. at 435, 129 S. Ct. 1762. Here the government
Defendants are applying for a stay and Plaintiffs are the opposing party. The
public interest factor is therefore distinct. At any rate, “injunctions
protecting First Amendment freedoms are always in the public interest.”
Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013)
(quoting Christian Legal Soc’y, 453 F.3d at 859).
III. Conclusion
The motion by Defendants for a partial stay of the preliminary
injunction pending appeal is DENIED.
29