Court Urged to Grant Military Class Action Relief

Feb 23, 2022

TAMPA, FL — Liberty Counsel has filed a declaration in Navy SEAL 1 v. Austin (formerly Biden) in support of the request for federal Judge Steven Merryday to issue a preliminary injunction for the remaining 28 plaintiffs in the case and to certify the entire class of the military and provide relief from the unlawful shot mandates. 

Liberty Counsel represents plaintiffs from all branches of the military who were denied religious exemptions from the COVID shot mandate. One of the remaining 28 plaintiffs who were not part of last week’s preliminary injunction is a Lt. Colonel in the Air Force who will be placed on the Officer’s Disciplinary Notebook, which is the beginning of the end of his career. 

In addition to the plaintiffs in the case, as of February 22, 2022, Liberty Counsel has been providing legal assistance to more than 700 servicemembers from the Army, Air Force, Space Force, Navy, Marine Corps, and Coast Guard. Liberty Counsel maintains an internal “Servicemember Final Denial List” for servicemembers who have contacted Liberty Counsel and whose final Religious Accommodation appeals have been denied. As of February 9, the list includes 131 military members, including 116 whose final denials were issued more than five business days ago. Before servicemembers receive final denials, many are required to vacate on-base housing and their families are left homeless. These families also are being forced to pay out-of-pocket to live in hotel rooms or travel trailers. Members on overseas deployments have been told they will not be granted terminal leave to return from overseas, pack down their on-base housing, transition to the civilian sector, find employment, and receive pay while doing so. Instead, they are given only four days of leave to complete all that. 

In addition, based on the “Servicemember Final Denial List” alone, the U.S. military will continue to lose highly qualified and experienced personnel, including diverse fields and specialties as artillery, aviation safety, air support control, administration, boatswains’ mate, chaplain, civil affairs, corpsman, crew chief, culinary specialist, cyber warfare operations, damage control, electronic warfare, emergency management, engineering, explosive ordnance disposal, flight nurse, imagery analyst, infantry officer, in-flight refueling, intelligence, logistics, marine science, medical, munitions inspection, nuclear propulsion, operations specialist, space operations officer, recruiter, security forces officer, SERE specialist, and special agent.

Last week, Judge Merryday granted a preliminary injunction for two service members in Navy SEAL 1 v. Austin who were denied religious exemptions from the COVID shot mandate. The court based its ruling on the federal Religious Freedom Restoration Act (RFRA), finding that the Marines and the Navy failed to demonstrate “to the individualized person” two of RFRA’s essential requirements on government action that burdens a person’s sincere religious belief – a compelling interest and the least restrictive means. This conclusion alone will essentially undo the blanket requirement placed on service members to get the COVID shots when such action burdens their sincere religious beliefs. 

The court further wrote, “In sum, the defendants fail to articulate why Navy Commander’s and Lieutenant Colonel 2’s sincerely held religious practice must yield to the requirement to accept COVID-19 vaccination…The submission reveals a process of ‘rubber stamp’ adjudication by form letter, a process incompatible with RFRA’s command to assess each request ‘to the person.’…A blanket or categorical grant no more satisfies RFRA’s individualized assessment than does a blanket or categorical denial. Although only a sample of the hundreds of denial letters issued by the military, the documents considered in conjunction with the administrative record supporting Navy Commander’s and Lieutenant Colonel 2’s denial, strongly illustrates that the military fails to afford an applicant an actual ‘case-by-case assessment’ as required by RFRA…Requiring a service member either to follow a direct order contrary to a sincerely held religious belief or to face immediate processing for separation or other punishment undoubtedly causes irreparable harm,” wrote the court. 

Liberty Counsel Founder and Chairman Mat Staver said, “Tragically, the number of servicemembers who have sought assistance from Liberty Counsel pales in comparison to the pool of those who need relief from the unconstitutional shot mandates. With more than 24,000 servicemembers expecting denials of their religious accommodations, every service member deserves protection from this unlawful abuse.” 

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