This case began in November 2021 with 35 individual plaintiffs comprised of U.S. Navy SEALs, U.S. Navy Special Warfare Combatant Craft Crewmen, and U.S. Navy Special Operators who filed religious accommodation requests in response to the DoD’s and Navy’s COVID-19 Vaccine Mandates. Because of the across-the-board discrimination these plaintiffs experienced at the very early stages of the mandates in response to seeking religious accommodations, we sought declaratory and injunctive relief (prospective relief – meaning only forward-looking relief) on their behalf.
Specifically, we requested a declaratory judgment that the mandate violated the plaintiffs’ rights under the First Amendment to the United States Constitution and rights under the Religious Freedom Restoration Act and a preliminary and permanent injunction prohibiting the DoD and the Navy from enforcing the mandate as to the plaintiffs.
On December 20, 2021, the Court held a hearing on our request for a preliminary injunction on behalf of our 35 plaintiffs. After the hearing, on January 3, 2022, the Court issued an order granting the preliminary injunctive relief we requested, which meant that adverse action could not be taken against our 35 plaintiffs on the basis of their requests for religious accommodation.
On January 24, 2022, we filed a First Amended Class Action Complaint to extend our requested prospective relief to all similarly situated servicemembers in the Navy.
To effectuate this relief, on January 25, 2022, we filed a motion requesting the Court certify a Class of sailors who submitted religious accommodation requests in response to the mandates.
On February 7, 2022, we filed a motion requesting that the Court extend the injunctive relief we achieved on January 3, 2022 for our 35 plaintiffs to the Class.
On March 28, 2022, the Court granted our motions and certified a Class of over 4,000 sailors who filed religious accommodation requests in response to the Navy’s COVID-19 Vaccine Mandate and expanded the injunctive relief issued on January 3, 2022 to the Class.
Taking into consideration the United States Supreme Court’s March 25, 2022 decision to partially stay the district court’s January 3, 2022 preliminary injunction, the class-wide injunction was immediately stayed in part, “insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions.”
Note that those who were not actively serving in the Navy as of March 28, 2022 are not part of the Class.
In the midst of our litigation, on December 23, 2022, Congress directed the Secretary of Defense to rescind the DoD COVID-19 Vaccine Mandate by way of the FY23 National Defense Authorization Act.
On January 10, 2023, the DoD rescinded the mandate. That same day, the Navy discontinued administrative separations for sailors who refused the COVID-19 vaccine, by way of NAVADMIN 005/23.
After the mandates were rescinded, federal district court cases seeking relief from the respective service branches’ COVID-19 vaccine mandates were soon declared moot. However, on February 14, 2024, the Court in this case granted in part and denied in part Defendants’ Assertion of Mootness. As stated in the Court’s order, this case was allowed to proceed, in part, for the following reasons:
To be sure, some harms were rectified by recission of the Mandate and its follow-on policies. But Plaintiffs allege that other past harms remain unresolved. These harms include “missed opportunities to promote, train, and fulfill milestone positions necessary to earn promotions.” For example, Plaintiffs contend that Class Members are one to three years behind their peers, which carries increased potential for placement on a separation track for some and potentially impacts pension benefits for others who are close to retirement. Additionally, Plaintiffs argue that there is no post-Mandate policy preventing consideration of vaccination status in promotions and non-operational assignments, which allows for continued discrimination. And, finally, Plaintiffs allege that the Navy has insufficiently implemented a review process to purge negative notations in each Class Member’s file, particularly given that there has always been a dispute about what constitutes “adverse action.”
Plaintiffs’ supplemental briefing satisfies the Court that, “[w]hile the Mandate may be gone, the effects of that Mandate and the discriminatory treatment the Class Members were subject to because of the Mandate still linger.” That is because Defendants have announced no changes to its overarching religious accommodations process. According to Plaintiffs, this allegedly “sham” process is what enabled the coercive and discriminatory treatment of the Class Members while their accommodation requests sat unadjudicated. The Mandate simply served as the catalyst that unveiled the problems with this broader process during the pandemic. These problems include: (1) indefinitely sitting on requests for religious accommodation; (2) foregoing the required individualized assessments, citing standardized policy memos (even if outdated) to satisfy the compelling interest requirement, and using boilerplate statements to suffice for demonstrating that the Navy’s action is the least restrictive means; (3) permitting discrimination and coercive tactics to pressure servicemembers to forego their religious beliefs; (4) authorizing Navy leadership to dictate denial of all requests without considering the individual circumstances of the requests and current conditions or facts; (5) permitting coercion and retaliation against commanding officers who recommend approval of religious accommodations despite the chain of command’s desire that requests be denied; and (6) prohibiting resubmission of denied requests and updates to pending requests due to a change of job, location, or other relevant circumstances.
To the extent these harms continue, our case remains active, and the Settlement Agreement is meant to address these issues.
This case has never been about redressing past harms, such as achieving reinstatement for servicemembers who did or did not file a religious accommodation request and were involuntarily separated from the Navy, because that relief was never requested in our pleadings.
The Court explained this in its February 14, 2024 Order:
The Navy responds that “[p]ast harms do not save this case from mootness because the operative complaint seeks prospective relief.” The Court agrees with the Navy. To the extent that any of these harms seek retrospective relief, they will not suffice for any future declaratory relief that may be awarded. See Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003) (holding that a claim for declaratory relief is moot because the plaintiff alleged only past injuries); see also Jackson, 2023 WL 5311482, at *2 (“Plaintiffs allege only past harm—deprivation of their constitution right to free exercise of their religion, missed opportunities for promotion and training, and reputational damage—resulting from the Mandate. Any such harm will not suffice for declaratory relief.”). As this case proceeds, only present and future harms will support any declaratory relief sought. Past harms from the Mandate—even those that were not remedied—cannot form the basis of a declaration.
This case also has never been about achieving any type of monetary relief for servicemembers for any reason whatsoever, to include compensatory damages (economic damages such as backpay, and non-economic damages such as pain and suffering) and punitive damages (damages that would dissuade the Defendants from engaging in discriminatory activity again).
If you feel that you have a claim for redressing past harms or pursuing monetary damages against the government, you should consult with an attorney. Please also note that claims pursuant to the Religious Freedom Restoration Act generally have a statute of limitations of four years.
If you were an active member of the Navy as of the date the Court granted our request for class certification (March 28, 2022) and filed a religious accommodation request in response to the Navy’s COVID-19 Vaccine Mandate, then you are a Class Member and the Settlement Agreement applies to you.
If you chose to voluntarily separate after the Class was certified and decided to rescind your religious accommodation request in order to separate, then the Settlement Agreement also applies to you pursuant to our request to amend the Class definition for settlement purposes and the Court’s subsequent June 5, 2024 order preliminarily approving the settlement agreement.
Yes. See paragraph 18 of the Settlement Agreement:
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.
Paragraph 19 of the Settlement Agreement accounts for these concerns:
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.
In addition to the language the Navy will include in the precepts for the above-referenced selection board convening orders, Class Members can also take proactive steps to protect their careers pursuant to this section of the settlement agreement.
Class Members meeting their respective selection boards starting in FY 25 can choose to write to the board asking to include additional information with their promotion packages. Either Class Members or their current commanders can write to the board to explain why certain information in the package may have been impacted by the Class Members’ vaccination status, religious accommodation request filing, and/or standing as a Class Member.
Below are the relevant instructions explaining what is generally presented to the board, as a matter of course—Letter to the Board; Performance Summary Report (PSR); Official Military Personnel File (OMPF):
SECNAVINST 1420.3 is for Officers (relevant section is enclosure 5).
BUPERSINST 1430.16 is for Enlisted (relevant section is chapter 11).
This PowerPoint provided by the Navy also explains the Enlisted Selection Boards process.
Additionally, NAVADMIN 220/19 explains how a servicemember submits information to the selection board:
https://www.mynavyhr.navy.mil/Portals/55/Messages/NAVADMIN/NAV2019/NAV19220.txt
Documentation is submitted to the selection board through MyNavyPortal (MNP) under Electronic Submission of Selection Board Documents (ESSBD).
The Settlement Agreement only resolves the Class Members’ claims for prospective relief (meaning only forward-looking relief).
Specifically, in our First Amended Class Action Complaint, we requested a declaratory judgment that the mandate violated the Class Members’ rights under the First Amendment to the United States Constitution and rights under the Religious Freedom Restoration Act, and a preliminary and permanent injunction prohibiting the DoD and the Navy from enforcing the mandate as to the Class Members.
As this case progressed, and after Congress directed on December 23, 2022 that the Secretary of Defense repeal the COVID-19 Vaccine Mandate, on February 14, 2024 this Court ordered that certain aspects of this case are moot:
On remand, Defendants argue that the intervening events after the preliminary injunction moot Plaintiffs’ claims. Plaintiffs appear to agree that the Fifth Circuit’s “foreclose[s] an argument that there is still a need for injunctive relief against the Mandate, or that the voluntary cessation doctrine prevents mootness on that issue.” Recent authority from the Supreme Court confirms that there is no longer a need for relief from the Mandate itself—particularly not in the form of a preliminary injunction. See Doster, 2023 WL 8531840, at *1 (granting certiorari to provide “instructions to direct the District Court to vacate as moot its preliminary injunctions” concerning the Mandate). While harms specifically arising out of the Mandate may be moot, Plaintiffs contend that the Fifth Circuit’s “decision did not touch all other parts of this case” because “[t]here are several remaining issues.” Specifically, Plaintiffs argue there is still “[o]ngoing harm to the Class Members” that demonstrates this case remains live. And even if not, there is real potential for future harm that is “capable of repetition yet evades review.” The Court agrees with Plaintiffs that the ongoing harms, arising from the Navy’s broader religious accommodations policy itself, show that their claims are not moot as it relates to this broader vaccine policy. Finding no mootness as to this aspect of Plaintiffs’ Amended Complaint, the Court need not address at this stage Plaintiffs’ alternative mootness-exception argument.
Concluding this case on claims pertaining to ongoing harms related to the Navy’s broader vaccine policy (as more fully explained in FAQ #1, above) does not preclude Class Members from seeking other forms of relief, to include monetary damages, themselves.
If you feel that you have a claim for redressing past harms or pursuing monetary damages against the government, you should consult with an attorney. Please also note that claims pursuant to the Religious Freedom Restoration Act generally have a statute of limitations of four years.
In short, settlement is a way to ensure that Class Members receive the relief they deserve as soon as possible.
This case was always about maintaining careers. To ensure that personnel files are corrected quickly and protective language is included in the selection board convening orders for the next three years prohibiting the consideration of COVID-19 vaccination refusal where accommodation was requested, settlement is the best way to achieve that.
Specifically, if personnel records and selection board convening orders were not corrected for years, Class Members would suffer continued lost employment and promotion opportunities in the meantime.
Even if Plaintiffs could ultimately obtain stronger relief if litigation continued, the Settlement Agreement provides substantial relief for the Class without the cost of continued harm while waiting for final judgment. Considering the substantial amount of discovery that would be needed to continue this case and the likelihood of appellate practice before trial means relief for the Class could be delayed for years. And considering what this case is about (see FAQ #1, above), it would be imprudent to postpone that relief at the cost of Plaintiffs’ and Class Members’ careers.
As stated in our unopposed motion filed on May 31, 2024:
Because there is no monetary relief at issue in this case, no specific relief will be “distributed to the class” other than the Navy’s correction of personnel files as indicated in paragraphs 17 and 18 of the Settlement Agreement. Appx.0009. The Navy is the only entity that has access to these files and represents that it can make the corrections needed, so it follows that this delivery of relief will be effective enough to satisfy the Rule. The other Class relief will be more public in nature and does not apply to any specific person, so that relief does not implicate the concerns in Rule 23(e)(2)(C)(ii).
Additionally:
“A district court faced with a proposed settlement must compare its terms with the likely rewards the class would have received following a successful trial of the case.” Reed, 703 F.2d at 172. Courts also consider the range of possible recovery in the action. Id. “In ascertaining whether a settlement falls within the range of possible approval, courts will compare the settlement amount to the relief the class could expect to recover at trial, i.e., the strength of the plaintiff’s case.” Erica P. John Fund, Inc. v. Halliburton Co., No. 3:02-CV-1152-M, 2018 WL 1942227, at *5 (N.D. Tex. Apr. 25, 2018). But courts should avoid essentially trying cases in evaluating the propriety of a settlement because “the very purpose of the compromise is to avoid the delay and expense of such a trial.” Reed, 703 F.2d at 172. And “the trial court should not make a proponent of a proposed settlement justify each term of settlement against a hypothetical or speculative measure of what concessions might have been gained.” Cotton, 559 F.2d at 1330.
Plaintiffs believe that they would be successful if this case were litigated through trial to final judgment and on appeal. Plaintiffs also believe that they could have obtained relief from the Court which would be at least similar to, and perhaps stronger than, what the Navy agreed to do in the Settlement. But that would have come at a significant cost—not only a litigation cost borne by Class Counsel, but also a cost to the Class because of the lengthy delay in receiving relief. If personnel records and selection board convening orders were not corrected for years, Class Members would suffer continued lost employment and promotion opportunities in the meantime. Even if Plaintiffs could have ultimately obtained stronger relief if the litigation continued, the Settlement provides substantial relief for the Class without the cost of continued harm while waiting for final judgment, so it warrants approval.
 |
|
|
