A federal judge in Florida has ruled that the Navy cannot do anything to remove a commander of a destroyer, despite testimony that he has flouted the service's rules for COVID-19 mitigation while seeking a religious exemption from the vaccine.
The order is part of a case that aims to be a class-action lawsuit on the military's vaccine mandate; it was filed by more than 30 unnamed officers and enlisted personnel from all the military branches in November 2021. On Feb. 2, for the sake of "preservation of the status quo" while the case is being decided, Judge Steven Merryday forbade the Navy from reassigning or demoting the commander. A second order, reaffirming and lengthening the term of the injunction, followed Feb. 18.
Merryday, who refers to the Navy commander as "triumphantly fit and slim and strong, who is robustly healthy, who is young," wrote that the stays reflected his view that the Navy is likely unable to prove that it was considering religious exemptions on a case-by-case basis, as required by the Religious Freedom Restoration Act (RFRA).
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The service says that the order "indefinitely sidelines a Navy warship."
The officer at the heart of this dispute is a commander, unnamed like the other plaintiffs, who joined the Navy in 2004 and now has "nearly 18 years in the service," according to the lawsuit. Other documents filed by the Navy show that the destroyer he commands is based in Norfolk, Virginia, and belongs to Destroyer Squadron 26.
According to the complaint, the commander filed his religious accommodation request on Sept. 13, 2021. It was denied in late October, and he appealed in November.
The lawsuit filings do not appear to mention the specific reasons the commander refused the vaccine.
However, according to the commander's boss -- Capt. Frank Brandon -- the Navy's objection to keeping the vaccine-refusing skipper in place is not about the exemption request but rather his disregard for policies designed to protect his own crew.
Brandon, in a filing made Feb. 9, testified to two incidents that made him lose faith in the commander's ability to lead the destroyer.
The first took place in early November, right around the time the skipper would have been filing the appeal to his denied exemption. Brandon says he boarded the ship before it put to sea for an exercise. However, as the commander was giving a briefing to "roughly 50-60 personnel … in shoulder-to-shoulder proximity," Brandon noticed "he could barely speak."
Afterward, Brandon questioned the commander in his cabin, where he admitted to having a sore throat that he blamed on a jog in the cold air. Nevertheless, the unvaccinated commander was ordered to get a COVID-19 test. It was positive.
Citing Navy regulations, the testimony notes that the commander violated service rules for COVID-19 mitigation by showing up to work with symptoms. These same rules -- masking, social distancing and isolation -- are cited by Merryday as having been "successfully implemented for more than a year before the development of vaccines and have continued to implement in conjunction with vaccines" in ordering the commander be kept in place. Merryday's order also slams the Navy's assertion that "mitigation measures other than vaccination 'are simply not as effective as vaccination'" as "reaching disputed medical conclusions."
The Centers for Disease Control and Prevention has repeatedly said that vaccines, especially when coupled with other measures like masking, are very effective at stopping or significantly reducing the spread of COVID-19. The Navy's publicly known outbreaks also show the value of vaccines. The first major outbreak on the USS Theodore Roosevelt in March 2020 sidelined the ship for nearly two months and led to one death. More recently, the USS Milwaukee's outbreak among a largely vaccinated crew in December 2021 resulted in an 11-day pause in the ship's deployment.
That first incident led Brandon to write a Letter of Instruction -- an official, written slap on the wrist -- for the commander on Dec. 3, according to court documents.
The second incident occurred three months later in early February 2022. According to Brandon, the commander told him he needed to take leave. What the skipper didn't tell his boss was that he was leaving the area -- specifically "in order to testify in this litigation."
Brandon noted that it is typical for the Navy to have an interest in a sailor's whereabouts while on leave in case an emergency forces the ship to recall its crew. The need is obviously increased dramatically for a ship's commanding officer.
"But for the Navy's participation in preparing for the lawsuit, I might not have known that [the commander] was traveling out of area," Brandon wrote in his statement, later noting he would have let the commander go for the hearing had he followed the rules.
Brandon notes that this omission was not only "an engerious breach of trust" but an issue from both national security and, again, COVID-19 mitigation standpoints. The squadron boss noted that, by lying about his travel, the unvaccinated commander did not complete a travel risk assessment and would have skipped the required quarantine period after his return -- more mitigation measures that were put in place to protect sailors from the pandemic.
"My loss of confidence in [the ship's commander] is not based on his vaccination status or his denied request for a religious exemption," Brandon wrote. "It is based on the fact that I cannot trust his judgment, I cannot trust him to look after the welfare of his sailors, and I cannot trust him to be honest with me."
Vice Adm. Daniel Dwyer, commander of the Norfolk-based Second Fleet, also testified that the judge's order to keep the commander in place at the helm of the Norfolk-based destroyer not only "directly interferes" with the Navy's ability to enforce policy but has operational impacts as well.
"It is untenable that a subordinate commander may choose to disregard, modify, or half-heartedly execute a senior officer's orders due to his or her personal beliefs," Dwyer testified.
He went on to say that Merryday's order "requires the Navy to leave a subordinate commander in command of a warship, despite his senior officer's questions relating to his fitness to discharge his duties as ordered."
"Under no circumstances would the Navy typically deploy a commander in an operational capacity with whom his or her superior officers have such reservations."
These arguments from the Navy, part of a motion to stay the injunction, led Merryday to grant a hearing last Wednesday to consider allowing the reassignment of the commander.
The Florida judge, who was appointed to the bench by George H.W. Bush, does not dispute the legality of the vaccination order; in fact, he says there is no dispute on the benefits of vaccination. He also says that the Navy's argument that it is not for the courts to dictate how it runs itself is "largely correct. But he adds that the RFRA allows service members to challenge the vaccination order regardless of other issues.
Merryday also gained public attention in 2021 when he blocked a CDC order that limited cruise ship operations due to the pandemic.
A hearing to further decide whether the Navy can reassign this commander will be held on March 10, according to the latest order from Merryday.
-- Konstantin Toropin can be reached at konstantin.toropin@military.com. Follow him on Twitter @ktoropin.
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