DOD’s Desperate Attempt To Dismiss Navy SEAL 1 Case

May 24, 2022

TAMPA, FL — Liberty Counsel filed a response asking federal Judge Steven Merryday to deny the Department of Defense’s (DOD) motion to dismiss the case of Navy SEAL 1 v. Austin. The DOD raised the same arguments the court has previously rejected. The DOD added a new argument that each of the plaintiffs and the class should be separately litigated in different courts around the country. However, venue is proper in Tampa because some of the Plaintiffs reside in the Tampa district. The courts are unanimous that a lawsuit may be brought in a court district where some of the plaintiffs or defendants reside. Moreover, the lawsuit alleges a cause of action common to all members of the class – namely, that the DOD and the military branches have unlawfully denied the religious accommodation requests of the service members under both the First Amendment and the federal Religious Freedom Restoration Act. 

Liberty Counsel represents many military plaintiffs and is seeking class certification for all six branches of the military who have been unlawfully denied religious exemptions from the COVID shot mandate. 

Previous injunctions granted by the Court have already determined that the Plaintiffs’ free exercise rights under the Religious Freedom Restoration Act (RFRA) have been violated. This in addition to the irreparable harm of being discharged and, for some, having to pay back education and training costs. As a result of the pressure, some service members have committed suicide.

After Judge Merryday ordered each branch of the military to file a detailed report regarding religious exemptions from the COVID-19 shot every 14 days beginning Friday, January 7, 2022, the filings prove the DOD is committing blatant religious discrimination. Out of thousands of thousands of requests received, only a few were granted and those service members were already scheduled to leave the military. However, at least 3,449 medical exemptions have been granted. The reports confirm the military continues to deny religious exemptions while granting medical exemptions. 

Liberty Counsel presented testimony and several critical documents before federal Judge Steven Merryday during a preliminary injunction for a U.S. Air Force Academy Cadet who faced immediate discipline after being denied his appeal for a religious accommodation from the COVID shot mandate. 

During one of the hearings, Liberty Counsel also presented evidence that on January 6, 2022, Brigadier General Paul Moga, a one-star general and commandant of the Air Force Academy, announced to the cadets at a lunch meeting regarding the Omicron variant that “there is very little danger to the force.” 

In Congressional testimony on February 17, 2021, Joint Chiefs of Staff Vice Director for Operations, Maj. Gen. Jeff Taliaferro, a two-star general, said the military was “fully capable of operating in a COVID environment before vaccinations were available.” Rep. Mike Rogers (R-AL), Ranking Member of the House Homeland Security Committee, asked: “So I take that to mean yes, they’re deployable even if they have not been vaccinated?” Maj. Gen. Taliaferro responded: “Yes, Sir.” 

Evidence presented during the hearing included March 2022 memos from Major General Richard D. Burke (Two-Star General), Deputy Principal Cyber Advisor to the Secretary of Defense and Senior Military Advisor for Cyber, and Lieutenant General Michael Howard (Three-Star General), who oversees the U.S. European Command (EUCOM) as Deputy Commander, regarding the approval of mission critical travel for unvaccinated service members who have “no discernable negative impact” on military readiness. 

The memo dated March 5, 2022, from Maj. Gen. Burke requested certain “unvaccinated” service members be approved for “mission essential” travel and deployment. He wrote, “Assessed risk to force for co-mingling vaccinated and unvaccinated personnel is low.”  In a second memo written the same day, Maj. Gen. Burke wrote: “Headquarters and Headquarters’ Battalion (HHBN), V Corps is 97% fully vaccinated. Assessed risk to force for comingling vaccinated and unvaccinated personnel is low.” 

On March 6, 2022, Lt. Gen. Michael Howard’s response to Maj. Gen. Burke’s request regarding “unvaccinated” service members for “mission essential” deployments, wrote “The approved.” 

Liberty Counsel also introduced evidence regarding a new change by the Marine Corps for “Quarantine and Isolation” (Q&I). Based on the data, the Marine Corps no longer requires COVID-positive Marines to Q&I from healthy Marines. Now, they are in the same barracks as Marines who do not have COVID and there is no longer any testing required.  

Liberty Counsel Founder and Chairman Mat Staver said, “The evidence is clear that these courageous service members have a strong case and are being used as part of a purging of our military members who love God and love America. There is no other logical or scientific explanation for the Department of Defense’s continued insistence on the shot mandate. We will continue to fight for every service member.” 

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