Fresh off of a Supreme Court decision that saw his previous vaccine-refuser injunction narrowed, a federal judge in Texas issued a new order Monday that turns the case into a class-action lawsuit and halts the Navy from discharging vaccine-refusing sailors Navy-wide.
In January, U.S. District Judge Reed O’Connor told the Navy that it could not discipline or discharge 35 sailors – mostly Navy SEALs – who were suing over their religious exemption denials. That order was upheld by the Fifth Circuit Court of Appeals. Yet the Supreme Court disagreed in part and ruled that, while the special operators couldn’t be discharged, the Navy was allowed to use their vaccination status to make operational and deployment decisions.
That was Friday.
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In Monday’s order, O’Connor granted the SEAL’s request to broaden the case out to a class action that includes “4,095 Navy service members who have filed religious accommodation requests,” the ruling said. That request was filed in January, according to court records.
“Without relief, each servicemember faces the threat of discharge and the consequences that accompany it,” O’Connor wrote in his order.
“Even though their personal circumstances may factually differ in small ways, the threat is the same – get the jab or lose your job,” he added.
O’Connor’s order also notes that, given the Supreme Court’s ruling, the Navy retains the power to consider sailors’ “vaccination status in making deployment, assignment, and other operational decisions.”
The Navy directed requests for comment to the Department of Justice, which did not immediately reply.
In arguing against the class certification, the government’s lawyers noted that “the Navy has a compelling interest in slowing the spread of COVID-19” and noted that this “policy choice resides with the Navy, not with its service members.”
The lawyers also rebutted claims that the rejections of the service member’s religious exemption requests were a foregone conclusion, as the SEALs alleged in various filings, by pointing out that they “provide no evidence that hundreds of military officials are acting together in bad faith to issue undifferentiated denials of each service member’s request.”
Legal experts who previously spoke with Military.com said that it appeared the lawyers for the sailors had intentionally picked a judge who would be more sympathetic to their claims.
"It's clearly forum shopping. … I don't think it's surprising that stays were obtained in very conservative districts on religious issues," Mark Zaid, a Washington, D.C.-based attorney who fought and prevailed over the military's last major vaccine mandate for anthrax, previously said.
Lawyers justified filing this case before the Texas court because one of the 35 defendants was stationed in Fort Worth, court records show. The Navy only has one notable base in the Texas city – a reserve naval air station – and the SEALs who made up most of the initial defendants are stationed predominantly in either Coronado, California, or Dam Neck, Virginia.
The order issued by O’Connor will likely impact several other, similar cases filed across the country, like the one in Florida filed by 30 unnamed officers and service members.
The judge in that case, which also sought to become a class-action lawsuit, ruled in March that the Navy cannot remove one of the plaintiffs, a destroyer commander, for refusing the COVID-19 vaccine.
As of last Wednesday, the Navy has discharged just over 650 active-duty and reserve sailors over the vaccine mandate.
Although the branch has not granted any exemption requests to active-duty sailors, it did grant nine conditional approvals to members of the Individual Ready Reserve, a non-drilling component of the reserve corps, with the understanding that, if called up, those sailors would become fully vaccinated.
-- Konstantin Toropin can be reached at konstantin.toropin@military.com. Follow him on Twitter @ktoropin.
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