No.

21A-_______
________________________________________________________________
________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

LLOYD J. AUSTIN, III, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF DEFENSE, ET AL., APPLICANTS

v.

U.S. NAVY SEALS 1-26, ET AL.

_______________

APPLICATION FOR A PARTIAL STAY OF THE INJUNCTION ISSUED BY THE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

_______________

ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

________________________________________________________________
________________________________________________________________
 PARTIES TO THE PROCEEDING

Applicants (defendants-appellants below) are Lloyd J. Austin,

III, in his official capacity as Secretary of Defense; the United

States Department of Defense; and Carlos Del Toro, in his official

capacity as Secretary of the Navy.*

Respondents (plaintiffs-appellees below) are U.S. Navy SEALs

1-26; U.S. Navy Special Warfare Combatant Craft Crewmen 1-5; U.S.

Navy Explosive Ordnance Disposal Technician 1; and U.S. Navy Divers

1-3. Respondents are proceeding under pseudonyms pursuant to a

protective order entered by the district court. See D. Ct. Doc.

34 (Dec. 2, 2021).

RELATED PROCEEDINGS

United States District Court (N.D. Tex.):

U.S. Navy SEALs 1-26 v. Biden, No. 21-cv-1236 (Jan. 3, 2022)

(granting preliminary injunction)

United States Court of Appeals (5th Cir.):

U.S. Navy SEALs 1-26 v. Biden, No. 22-10077 (Feb. 28, 2022)
(denying stay)

* Respondents’ original complaint also named as defendants

Joseph R. Biden, Jr., in his official capacity as President of the
United States of America, as well as Secretaries Austin and Del
Toro in their individual capacities. Those former defendants are
not covered by the preliminary injunction at issue here.
 IN THE SUPREME COURT OF THE UNITED STATES
_______________

No. 21A-_______

LLOYD J. AUSTIN, III, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF DEFENSE, ET AL., APPLICANTS

v.

U.S. NAVY SEALS 1-26, ET AL.

_______________

APPLICATION FOR A PARTIAL STAY OF THE INJUNCTION ISSUED BY THE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

_______________

Pursuant to Rule 23 of the Rules of this Court and the All

Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of

applicants Lloyd J. Austin, III, in his official capacity as Sec-

retary of Defense, et al., respectfully applies for a partial stay

of a preliminary injunction issued on January 3, 2022, by the

United States District Court for the Northern District of Texas

(App., infra, 31a-56a), pending the consideration and disposition

of the government’s appeal to the United States Court of Appeals

for the Fifth Circuit and, if the court of appeals affirms the

injunction, pending the timely filing and disposition of a petition

for a writ of certiorari and any further proceedings in this Court.

This application seeks relief from a preliminary injunction

that usurps the Navy’s authority to decide which servicemembers

should be deployed to execute some of the military’s most sensitive

and dangerous missions. Respondents are a group of SEALs and other

 2

members of the elite Naval Special Warfare community. They assert

that they are entitled to exemptions from the Navy’s COVID-19

vaccination requirement under the Religious Freedom Restoration

Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq., and the Free Exercise

Clause. And they insist that they are also entitled to an injunc-

tion forbidding their military commanders from making any changes

to their military assignments -- including special-operations de-

ployments -- to address the risks posed by their unvaccinated

status.

The district court granted that extraordinary relief. The

court’s preliminary injunction not only prohibits the Navy from

applying the COVID-19 vaccination requirement to respondents, but

also requires the Navy to assign and deploy them without regard to

their lack of vaccinations notwithstanding military leaders’ judg-

ment that doing so poses intolerable risks to safety and mission

success. Indeed, the Navy has informed this Office that the in-

junction has already compelled it to send one respondent to Hawaii

for duty on a submarine against its military judgment. Other

respondents occupy positions that may require them to be “de-

ploy[ed] anywhere in the world in the immediate future.” App.,

infra, 118a.

In response to that extraordinary and unprecedented intrusion

into core military affairs, the government moved for a partial

stay pending appeal. It did not seek to stay the portion of the
 3

injunction that protects respondents from discipline or discharge

for remaining unvaccinated. Instead, the government sought a stay

only insofar as the injunction “precludes the Navy from considering

[respondents’] vaccination status in making deployment, assign-

ment, and other operational decisions.” App., infra, 14a (citation

omitted). The lower courts denied even that modest relief. Id.

at 29a, 66a. This Court should grant a partial stay for two

reasons.

First, even if respondents’ claims had merit, respondents

would not be entitled to an injunction dictating the Navy’s de-

ployment, assignment, and operational decisions. RFRA authorizes

a court to issue only “appropriate relief,” 42 U.S.C. 2000bb-1(c),

and respondents’ Free Exercise claims likewise would support only

relief that comports with “traditional principles of equity ju-

risdiction.” Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond

Fund, Inc., 527 U.S. 308, 318-319 (1999) (citation omitted). An

injunction that trenches on core Article II prerogatives concern-

ing which military servicemembers are qualified for which missions

is inconsistent with those traditional principles and has no prec-

edent in our Nation’s history.

Second, respondents’ claims lack merit. SEALs and other mem-

bers of the Special Warfare community can be called upon to deploy

anywhere in the world on short notice; to complete high-risk mis-

sions under extreme conditions; and to operate in small teams and

 4

close quarters for extended periods. App., infra, 107a. To take

just one well-publicized example, in 2009 a team of SEALs flew

8000 miles to respond to the hijacking of a U.S.-flagged ship by

Somali pirates and ultimately played a critical role in rescuing

the ship’s captain, who was being held hostage. Id. at 115a.

The Navy has an extraordinarily compelling interest in en-

suring that the servicemembers who perform those missions are as

physically and medically prepared as possible. That includes vac-

cinating them against COVID-19, which is the least restrictive

means of achieving that interest. Admiral William K. Lescher,

Vice Chief of Naval Operations and the second-highest uniformed

officer in the Navy, explained that the illness of “even one mem-

ber” of a small SEAL team due to COVID-19 could “compromise the

mission.” App., infra, 117a. And he emphasized that he would

regard it as a “dereliction of duty” to order “unvaccinated per-

sonnel into an environment in which they endanger their lives,”

risk “the lives of others,” and “compromise accomplishment of es-

sential missions.” Id. at 110a. The lower courts seriously erred

by compelling such a dereliction of duty and failing to afford any

deference to the “professional judgment” of Admiral Lescher and

other military officers charged with our Nation’s defense. Goldman

v. Weinberger, 475 U.S. 503, 507 (1986).

 5
STATEMENT

A. The Naval Special Warfare Community

This case involves the Naval Special Warfare community, which

includes Navy SEALs and Naval Special Warfare combat support per-

sonnel. App., infra, 106a-107a. Members of the Special Warfare

community are assigned to missions including special reconnais-

sance, counterterrorism, counterinsurgency, and hostage rescue.

Id. at 106a-107a, 115a-116a. Those high-risk missions are “often

conducted in hostile, austere or diplomatically sensitive envi-

ronments.” Id. at 107a. And Special Warfare personnel routinely

operate in close quarters over long periods in units “as small as

a squad of four.” Id. at 111a; see id. at 107a.

Special Warfare duty “takes place in every part of the world

under harsh conditions at the extremes of human physical capabil-

ities.” App., infra, 69a. Because it is “among the most physi-

cally and mentally demanding assignments in the U.S. military,”

Special Warfare duty is limited to “the most physically and men-

tally qualified personnel.” Ibid. Any conditions that “impair

the ability to safely and effectively work in the [special opera-

tions] environment,” “increase potential for medical evacuation,”

or “caus[e] a significant potential for disruption of operations”

are “disqualifying.” Id. at 71a. The long list of disqualifying

conditions includes, for example, certain forms of sleep apnea,

severe allergies, dental issues requiring frequent care, and any

condition requiring frequent medication. Id. at 71a, 75a-76a.

 6
B. The Navy’s COVID-19 Vaccination Requirement

1. The U.S. military has relied on mandatory immunization

since 1777, when George Washington directed the inoculation of the

Continental Army against smallpox. Stanley Lemon et al., Protect-

ing Our Forces: Improving Vaccine Acquisition and Availability in

the U.S. Military 11-12 (2002), https://perma.cc/E545-TQ9G. As of

2021, nine vaccines were required for all servicemembers, includ-

ing an annual influenza vaccine, and eight additional vaccines

were required when certain risk factors are present.

D. Ct. Doc. 44-1, at 63 (Dec. 10, 2021).

In August 2021, the day after the Food and Drug Administration

(FDA) granted full approval to the first COVID-19 vaccine, the

Secretary of Defense announced that vaccination against COVID-19

would be added to the required list. App., infra, 67a-68a. The

Secretary of the Navy ordered active-duty members of the Navy to

be vaccinated by November 28. Id. at 32a.

On September 24, 2021, the Commander of the Naval Special

Warfare Command issued “Trident Order #12,” which required Special

Warfare personnel to receive the first dose of the vaccine or to

request an exemption by October 17. App., infra, 79a-80a. The

order stated that requests for exemptions would be handled under

existing “service policies.” Id. at 80a.

The Navy also issued two directives related to the COVID-19

vaccination requirement, which are referred to as “NAVADMIN

225/21” and “NAVADMIN 256/21.” Those directives set forth proce-

 7

dures for disciplining and ultimately separating servicemembers

who refuse vaccination without an exemption. App., infra, 81a-

85a (NAVADMIN 225/21), 86a-94a (NAVADMIN 256/21). They also pro-

vide that “service members who are not vaccinated, regardless of

exemption status, may be temporarily reassigned” based on “opera-

tional readiness and mission requirements.” Id. at 87a-88a.

2. Navy policies establish “two types of exemptions” from

vaccination requirements: “medical and administrative.” App.,

infra, 144a. Medical exemptions are granted by medical personnel

for medical reasons and may be either temporary or permanent.

Ibid. Most exemptions are granted for temporary conditions such

as pregnancy. Id. at 99a; see Navy & Marine Corps COVID-19 Vac-

cination Requirements: Pregnant & Postpartum Service Members FAQ

(Sept. 17, 2021), https://go.usa.gov/xzBcS. As of December 2021,

out of roughly 350,000 active-duty servicemembers, the Navy had

granted “10 permanent medical exemptions” and “259 temporary med-

ical exemptions” from the COVID-19 vaccination requirement. App.,

infra, 7a; see U.S. Dep’t of Def., Armed Forces Strength Figures

(Jan. 31, 2022), https://go.usa.gov/xzZ4r. No member of the Spe-

cial Warfare community has received a permanent medical exemption,

and only a handful have temporary medical exemptions. App., infra,

7a. 1

The court of appeals stated that the Navy had granted at

1

least 17 temporary medical exemptions to members of the Special

 8

Administrative exemptions cover a variety of temporary situ-

ations, including a “pending separation or retirement” and “emer-

gency leave.” App., infra, 150a. Those exemptions last only as

long as the condition occasioning the exemption. D. Ct. Doc. 130,

at 43 (Feb. 23, 2022). As of December 2021, the Navy had granted

59 of this type of administrative exemption. App., infra, 7a.

Administrative exemptions also include permanent “religious

accommodation[s].” App., infra, 150a. A servicemember seeking a

religious accommodation must submit a request to his or her com-

manding officer. Ibid. Such requests are governed by longstanding

Navy policies applicable to requests for religious accommodations.

Those policies provide that each request for an accommodation,

including from a vaccination requirement, is “evaluated on a case-

by-case basis” considering factors including “military readiness,

unit cohesion, good order, discipline, health, [and] safety.” Id.

at 152a. Servicemembers may appeal the denial of a religious

accommodation to the Chief of Naval Operations. Ibid.

The COVID-19 vaccination requirement triggered an “unprece-

dented increase” in religious accommodation requests. App., in-

Warfare community. App., infra, 7a. The Navy informs this Office
that most of those exemptions have now expired; that there are now
only four temporary medical exemptions among all Naval Special
Operators; that all four of the recipients will get vaccinated
when their temporary medical issue clears; and that, while the
exemptions remain in effect, the recipients will not be deployed
and will have their unvaccinated status taken into account in
assignment and other operational decisions.
 9

fra, 140a. Between 2015 and the summer of 2021, the Navy “adju-

dicated 83 religious accommodation requests for exemption from any

required vaccination,” granting one of those requests. Ibid. In

the seven months since the COVID-19 vaccination was added as a

mandatory immunization, the Navy has received more than 4000 re-

quests for religious accommodations from that requirement. D. Ct.

Doc. 121, at 59 (Feb. 15, 2022). As of February 3, 2022, only 81

of those requests had been fully adjudicated through appeal; more

than 1200 appeals remained pending; and many requests that were

denied after initial review could still be appealed. Ibid. Thus

far, the Navy has granted one religious accommodation. 2

3. An exemption to the vaccination requirement -- whether

medical or religious -- does not by itself entitle a servicemember

to be deployed because the Navy has a separate process for deter-

mining medical readiness for deployment. App., infra, 96a-97a.

As relevant here, a servicemember who meets all medical require-

ments for “special operations” -- which include operations under-

taken by the Special Warfare community -- is deemed “Physically

Qualified,” and one who does not is “Not Physically Qualified.”

Id. at 97a. Servicemembers found to be “Not Physically Qualified”

are medically disqualified from special-operations duty unless

2 The court of appeals believed that the Navy had not granted
any religious accommodations because the grant, which involved a
member of the Individual Ready Reserve, occurred after the prepa-
ration and filing of the government’s stay declarations. App.,
infra, 7a; see D. Ct. Doc. 129, at 16 n.2 (Feb. 23, 2022).
 10

they obtain a medical “Waiver to Physical Standards.” Id. at 97a-

98a.

Under a longstanding Navy policy, Special Warfare service-

members who cannot be vaccinated for religious reasons are deemed

not physically qualified. App., infra, 77a (MANMED art. 15-

105(4)(n)(9)). That specific policy does not apply to service-

members with “medical contraindications” to vaccination. Ibid.

But other, more general Navy policies make clear that a service-

member who is unvaccinated against COVID-19, “whether for reli-

gious or secular reasons,” cannot be assigned to an operational

unit and must obtain a separate medical waiver in order to be

deployable. Id. at 98a; see D. Ct. Doc. 10, at 10 (Jan. 31, 2022)

(NAVADMIN 07/22 ¶ 5.b). “These deployability determinations do

not take into account whether a member is unvaccinated for secular

or religious reasons; all unvaccinated service members are treated

the same for purposes of determining whether they should receive

a medical waiver that would render them fit for special operations

duty.” App., infra, 99a.

C. The Present Controversy

1. Respondents are 35 Navy servicemembers assigned to the

Naval Special Warfare Command, including 26 Navy SEALs. They

brought this putative class action under pseudonyms in the United

States District Court for the Northern District of Texas. The

operative complaint alleges that respondents’ religious beliefs

 11

forbid them from receiving the COVID-19 vaccine. Am. Compl.

¶¶ 27-31. Respondents further allege that the Navy either has

already denied or will deny their requests for religious exemp-

tions. Id. ¶¶ 49-53. The operative complaint asserts violations

of RFRA and the Free Exercise Clause. See id. ¶¶ 64-134.

The district court granted respondents’ motion for a prelim-

inary injunction. App., infra, 31a-56a. The court first found

their claims justiciable under Fifth Circuit precedent. Id. at

36a-47a. On the merits, the court determined that respondents are

likely to succeed on their RFRA claims because it believed that

the Navy lacks a compelling interest in requiring them to be vac-

cinated. Id. at 48a-51a. The court reasoned that respondents had

“safely carried out their jobs during the pandemic,” id. at 49a;

that allowing respondents to remain unvaccinated would not prevent

the Navy from achieving “herd immunity,” given its high overall

vaccination rate, id. at 50a; and that the Navy grants “exemptions

for non-religious reasons,” ibid. The court found a likelihood of

success under the First Amendment because it believed the Navy

treats a servicemember’s inability to be vaccinated for secular

(medical) reasons more favorably than a servicemember’s inability

to be vaccinated for religious reasons. Id. at 51a-52a. 3

3 The district court retreated from that conclusion after the

government submitted a declaration explaining that the court had
erred in stating that servicemembers with medical exemptions are
treated more favorably than those with religious exemptions. App.,
 12

The district court preliminarily enjoined the Navy from en-

forcing the policies described above -- specifically, NAVADMIN

225/21, NAVADMIN 256/21, Trident Order #12, and MANMED art. 15-

105(4)(n)(9) -- with respect to respondents. App., infra, 56a. 4

The injunction also states that the Navy is “enjoined from taking

any adverse action against [respondents] on the basis of [their]

requests for religious accommodation.” Ibid.

2. The government asked the district court for a partial

stay of the injunction pending appeal, “to the extent the order

precludes [the Navy] from making the assignment and reassignment

decisions that the military deems appropriate, taking into account

[respondents’] vaccination status, including with respect to de-

ployment and training.” App., infra, 58a (citation omitted). The

court denied the motion. Id. at 58a-66a. It stated that its

injunction does not require the Navy “to make any particular per-

sonnel assignments,” such as “requir[ing] the Navy to place a

particular SEAL in a particular training program.” Id. at 60a.

But the court made clear that the injunction does forbid the Navy

from making assignment and deployment decisions based on respond-

ents’ vaccination status, such as “blocking [them] from a training

program [they] would otherwise attend.” Ibid.

infra, 62a. The court thus made clear that its subsequent denial
of a stay rested solely on respondents’ RFRA claims, not their
First Amendment claims. Id. at 63a.
4 The injunction refers to MANMED art. 15-105(3)(n)(9) rather

than art. 15-105(4)(n)(9), but that is a scrivener’s error.

 13

3. The court of appeals denied the government’s motion for

a partial stay of the injunction. App., infra, 1a-29a. Like the

district court, the court of appeals found the dispute justiciable

under circuit precedent. Id. at 14a-22a. On the merits, the court

determined that respondents are likely to succeed on their RFRA

claims. Id. at 22a-27a. The court emphasized that 99.4% of Navy

servicemembers are vaccinated, which it viewed as undercutting any

compelling interest in ensuring that respondents are vaccinated.

Id. at 24a-25a. The court also suggested that the Navy lacks a

compelling interest in mitigating the risks of COVID-19 because

SEALs face other hazards -- including “everything from gunshot

wounds” to “parachute accidents” -- that “may create risks of equal

or greater magnitude than the virus.” Id. at 25a.

The court of appeals also believed that the Navy’s vaccine

requirement was “underinclusive” because the Navy had “granted tem-

porary medical exemptions to 17 Special Warfare members” and the

court saw no basis for “differentiating those service members from

[respondents].” App., infra, 26a (citation omitted). The court

criticized the Navy’s broader religious-accommodation practices,

questioning Navy officers’ representations that they were making

individualized determinations on exemption requests and asserting

that RFRA would require the Navy to grant accommodations to ser-

vicemembers who (unlike respondents) “work[] from desks, ware-

houses, or remote locations.” Id. at 27a; see id. at 6a-7a & n.3.
 14

Finally, the court of appeals rejected the government’s eq-

uitable arguments, including that the injunction is an improper

intrusion into military decisionmaking. App., infra, 27a-29a.

The court stated that the government had failed to establish a

likelihood of irreparable harm “during the pendency of the appeal.”

Id. at 27a (citation and emphasis omitted). And the court added

that because it had concluded that the vaccine requirement violates

respondents’ religious freedom, “[n]o further showing is necessary

for [respondents] to demonstrate that even partially staying the

injunction would irreparably harm them.” Id. at 28a. 5

4. Following the entry of the preliminary injunction, lit-

igation has continued in the district court. Respondents have

moved for class certification and a classwide preliminary injunc-

tion extending relief to all of the thousands of Navy servicemem-

bers who have sought religious exemptions. App., infra, 14a n.7.

Respondents have also filed a contempt motion asserting that the

preliminary injunction entitles them to immediate transfer to op-

erational units; to be assigned or reassigned to specific military

duties, including leadership positions; to have military equipment

issued to them; or to train and deploy with operational units.

D. Ct. Doc. 96, at 5-9 (Jan. 31, 2022).

5Because the court of appeals concluded that respondents were

likely to succeed on their RFRA claims, it did not address their
Free Exercise claims. App., infra, 13a n.6.
 15
ARGUMENT

The government respectfully requests a partial stay of the

district court’s preliminary injunction pending completion of fur-

ther proceedings in the court of appeals and, if necessary, this

Court. Specifically, the injunction should be stayed insofar as

it precludes the Navy from considering respondents’ vaccination

status in making deployment, assignment, and other operational

decisions. A stay pending the disposition of a petition for a

writ of certiorari is appropriate if there is (1) “a ‘reasonable

probability’ that four Justices will consider the issue suffi-

ciently meritorious to grant certiorari”; (2) “a fair prospect

that a majority of the Court will conclude that the decision below

was erroneous”; and (3) “a likelihood that ‘irreparable harm will

result from the denial of a stay.’” Conkright v. Frommert, 556

U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers) (brackets and

citation omitted). Those requirements are satisfied here.

I. THIS COURT WOULD LIKELY GRANT REVIEW IF THE COURT OF APPEALS

AFFIRMED THE DISTRICT COURT’S INJUNCTION

If the court of appeals affirmed the district court’s unprec-

edented injunction, there is at minimum a “reasonable probability”

that this Court would grant a petition for a writ of certiorari.

Conkright, 556 U.S. at 1402 (citation omitted). The Secretary of

Defense has determined, as an exercise of his military judgment,

that vaccination against COVID-19 is necessary to protect service-

members and defend the American people. See App., infra, 67a (“To
 16

defend this Nation, we need a healthy and ready force.”). As

multiple senior military officers attested, the Navy has a par-

ticularly compelling interest in vaccinating members of the Spe-

cial Warfare community because of the importance, sensitivity, and

dangerousness of their missions, which could be disrupted or de-

railed by even a single sick servicemember. See pp. 24-26, infra.

The district court’s terse RFRA analysis failed even to acknowledge

those expert military judgments. If the court of appeals affirmed,

that stark departure from long-settled principles of military def-

erence would warrant this Court’s review. 6

Even if respondents’ RFRA claims had merit, moreover, the

propriety of the district court’s extraordinary injunction would

itself be an important question warranting certiorari. The dis-

trict court did not just enjoin the Navy from enforcing its COVID-

19 vaccination requirement against respondents. The court also

enjoined the Navy from “taking any adverse action against [re-

spondents] on the basis of [their] requests for religious accom-

6 Other district courts have correctly declined to enjoin the

military’s COVID-19 vaccination requirement. E.g., Short v. Ber-
ger, No. 22-cv-1151 (C.D. Cal. Mar. 3, 2022) (Doc. 25); Robert v.
Austin, No. 21-cv-2228, 2022 WL 103374 (D. Colo. Jan. 11, 2022);
Church v. Biden, No. 21-cv-2815, 2021 WL 5179215 (D.D.C. Nov. 8,
2021). A district court in Florida, however, has granted a pre-
liminary injunction barring the Navy and the Marine Corps from
reassigning two senior officers. Navy SEAL 1 v. Austin, No. 21-
cv-2429, 2022 WL 534459, at *20 (M.D. Fla. Feb. 18, 2022). The
government’s application to stay that injunction is pending in the
Eleventh Circuit. See Navy SEAL 1 v. President of the United
States, No. 22-10645.
 17

modation,” App., infra, 56a, and made clear that “adverse action”

would include measures such as changing respondents’ duties or

reassigning them from their units, see id. at 53a. When the

government advised the court that it understood that language to

prohibit the Navy from taking into account respondents’ unvac-

cinated status when making assignment and deployment decisions and

requested a partial stay of that aspect of the injunction, the

court denied relief. Id. at 60a. The court of appeals likewise

refused that partial stay of the injunction. Id. at 28a-29a.

Neither respondents nor the lower courts identified any prior

injunction dictating military assignments in that fashion. If

affirmed on appeal, that severe and unprecedented intrusion into

the operation of our Nation’s armed forces would plainly warrant

this Court’s review. See Department of the Navy v. Egan, 484 U.S.

518, 520 (1988) (explaining that the Court granted certiorari to

address interference with Executive Branch determinations of “im-

portance * * * to national security concerns”); see also, e.g.,

Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018); Winter v. NRDC,

Inc., 555 U.S. 7, 12 (2008).

II. THE GOVERNMENT IS LIKELY TO SUCCEED IN REVERSING OR NARROWING

THE INJUNCTION

If this Court granted a writ of certiorari, there is a “fair

prospect” that it would reverse or narrow the preliminary injunc-

tion. Conkright, 556 U.S. at 1402 (citation omitted). The in-

junction intrudes on core Article II military decisionmaking by

 18

precluding the Navy from considering respondents’ vaccination sta-

tus in making deployment, assignment, and other operational deci-

sions. And the government is likely to succeed in its defense

against respondents’ RFRA and Free Exercise claims because the

Navy has a compelling interest in requiring Navy SEALs and other

Special Warfare personnel to be as physically ready for their

missions as possible, and because compliance with the neutral and

generally applicable vaccination requirement is the least restric-

tive means of achieving that interest.

A. An Injunction Dictating Military Deployment, Assignment,

And Other Operational Decisions Is Not An Appropriate
Remedy

Because the government seeks only a partial stay of the dis-

trict court’s injunction, the relevant question for likelihood-

of-success purposes is whether the government is likely to succeed

in reversing the portion of the injunction prohibiting the Navy

from considering respondents’ vaccination status in making deploy-

ment, assignment, and other operational decisions. It is.

1. “[J]udges are not given the task of running the Army” or

the Navy, and it is the Executive officials charged with protecting

our national security and defending our borders -- not courts --

who have authority to determine servicemembers’ fitness for duty

and assignments. Orloff v. Willoughby, 345 U.S. 83, 93 (1953);

see id. at 92-93. For that reason, “courts traditionally have

been reluctant to intrude upon the authority of the Executive in

 19

military and national security affairs.” Egan, 484 U.S. at 530.

Indeed, “[j]udicial inquiry into the national-security realm

raises ‘concerns for the separation of powers in trenching on

matters committed to the other branches.’” Ziglar v. Abbasi, 137

S. Ct. 1843, 1861 (2017) (citation omitted). “It is this power of

oversight and control of military force by elected representatives

and officials which underlies our entire constitutional system.”

Gilligan v. Morgan, 413 U.S. 1, 10 (1973).

The problems with judicial intervention in military affairs

are not limited to formal separation-of-powers concerns, but in-

clude practical ones, too. “The complex, subtle, and professional

decisions as to the composition, training, equipping, and control

of a military force are essentially professional military judg-

ments.” Gilligan, 413 U.S. at 10. Accordingly, “it is difficult

to conceive of an area of governmental activity in which the courts

have less competence.” Ibid.; cf. Bryant v. Gates, 532 F.3d 888,

899 (D.C. Cir. 2008) (Kavanaugh, J., concurring) (“[M]ilitary de-

cisions and assessments of morale, discipline, and unit cohesion

* * * are well beyond the competence of judges.”).

In Reaves v. Ainsworth, 219 U.S. 296 (1911), for example,

this Court refused to second-guess the military’s determination of

a servicemember’s “fitness for promotion.” Id. at 298. In Orloff,

the Court emphasized that it had “found no case where this Court

ha[d] assumed to revise duty orders as to one lawfully in the

 20

service.” 345 U.S. at 94. Lower courts likewise have -- at least

until now -- uniformly declined to second-guess military judgments

regarding fitness for duty and assignments. See, e.g., Harkness

v. Secretary of the Navy, 858 F.3d 437, 443-445 (6th Cir. 2017),

cert. denied, 138 S. Ct. 2648 (2018); Antonellis v. United States,

723 F.3d 1328, 1336 (Fed. Cir. 2013); Sebra v. Neville, 801 F.2d

1135, 1141-1142 (9th Cir. 1986). And that hesitance has extended

even to constitutional challenges. See, e.g., Orloff, 345 U.S. at

93-94 (Fifth Amendment); Harkness, 858 F.3d at 443-445 (First

Amendment); see also, e.g., United States v. Webster, 65 M.J. 936,

946-948 (Army Ct. Crim. App. 2008) (rejecting argument that RFRA

entitled Muslim servicemember to challenge his deployment to

Iraq).

2. The preliminary injunction here flouts those principles.

By requiring the Navy to deploy and assign respondents without

regard for their vaccination status, the district court effec-

tively inserted itself into the Navy’s chain of command, overriding

military commanders’ “professional military judgments” about op-

erational needs and requirements. Gilligan, 413 U.S. at 10; see

Chappell v. Wallace, 462 U.S. 296, 300 (1983) (warning against

suits that “tamper with the established relationship between en-

listed military personnel and their superior officers”). That

extraordinary intrusion is neither “appropriate relief” under

RFRA, 42 U.S.C. 2000bb-1(c), nor consonant with the “traditional

 21

principles of equity jurisdiction,” Grupo Mexicano de Desarrollo,

S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318-319 (1999)

(citation omitted), that constrain the available relief on re-

spondents’ Free Exercise claims, see Armstrong v. Exceptional

Child Center, Inc., 575 U.S. 320, 327-328 (2015).

The court of appeals sought to justify that intrusion on the

circular ground that “generals don’t make good judges.” App.,

infra, 22a (brackets and citation omitted). The district court,

for its part, asserted that its injunction would not interfere

with military discretion because “[w]hether denying religious ac-

commodations violates the First Amendment is a distinct legal

question” that “requires neither ‘military expertise [n]or dis-

cretion.’” Id. at 46a (citation omitted).

That misses the point. The problem with the scope of the

injunction is not that it rests on a determination about the merits

of respondents’ RFRA or First Amendment claims (though in reaching

that determination, the lower courts seriously erred by refusing

to afford any deference to military judgments about military needs,

see pp. 23-31, infra). The problem is that in crafting a remedy,

the district court countermanded the Navy’s determination that

vaccination against COVID-19 is necessary to field an effective

Special Warfare fighting force -- a quintessential matter of mil-

itary expertise and discretion. Cf. Winter, 555 U.S. at 24 (courts

must “give great deference” to “professional military judgments”

 22

about what is needed to ensure military readiness) (citations

omitted).

A partial stay would eliminate that intrusion -- and the

resulting threat to military operations and national security --

while still protecting respondents from discipline or discharge.

Respondents would be free to stay unvaccinated and remain in the

Navy. They simply would not be entitled to be assigned to or

deployed on missions that their commanding officers have deter-

mined would be jeopardized by their lack of vaccination.

B. Respondents’ RFRA Claims Lack Merit

In addition to authorizing unprecedented and overbroad re-

lief, the court of appeals erred in finding that respondents were

likely to succeed on their RFRA claims. RFRA provides that the

federal government “shall not substantially burden a person’s ex-

ercise of religion” unless the government “demonstrates that ap-

plication of the burden to the person -- (1) is in furtherance of

a compelling government interest; and (2) is the least restrictive

means of furthering that compelling governmental interest.” 42

U.S.C. 2000bb-1(a) and (b). The application of the COVID-19 vac-

cination requirement to respondents satisfies those requirements.

1. “Stemming the spread of COVID-19 is unquestionably a

compelling interest.” Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63, 67 (2020) (per curiam). It is all the more com-

pelling in the military, given the “vital interest” of maintaining

 23

a fighting force “that functions with maximum efficiency and is

capable of easily and quickly responding to continually changing

circumstances.” United States v. O’Brien, 391 U.S. 367, 381

(1968). And “when evaluating whether military needs justify a

particular restriction on religiously motivated conduct, courts

must give great deference to the professional judgment of military

authorities concerning the relative importance of a particular

military interest.” Goldman v. Weinberger, 475 U.S. 503, 507

(1986).

RFRA did not displace those longstanding principles. To the

contrary, Congress specifically emphasized when it enacted RFRA

that “[t]he courts have always recognized the compelling nature of

the military’s interest” in “good order, discipline, and security”

and have “always extended to military authorities significant def-

erence in effectuating those interests.” S. Rep. No. 111, 103d

Cong., 1st Sess. 12 (1993). Congress “intend[ed] and expect[ed]

that such deference w[ould] continue under [RFRA].” Ibid.; see

H.R. Rep. No. 88, 103d Cong., 1st Sess. 8 (1993).

2. Here, the Navy extensively justified its military judg-

ment that it has a compelling interest in vaccinating members of

the Special Warfare community, including respondents. See App.,

infra, 95a-188a (reproducing declarations of six high-ranking Navy

officers submitted to the district court). Navy personnel rou-

tinely operate for extended periods of time in confined spaces

 24

that are ripe breeding grounds for respiratory illnesses, where

mitigation measures such as distancing are impractical or impos-

sible. A SEAL who falls ill not only cannot complete his or her

own mission, but risks infecting others as well, particularly in

close quarters, including on submarines. A severe illness could

require impractical or impossible evacuation and could jeopardize

mission success. The Navy has a compelling interest in avoiding

those foreseeable risks, especially given the transmissibility and

virulence of COVID-19.

Admiral Lescher explained, for example, that “[u]nvaccinated

or partially vaccinated service members are at higher risk to

contract COVID-19, and to develop severe symptoms requiring hos-

pitalizations that remove them from their units and impact mission

execution.” App., infra, 103a. He added that “[t]he environment

in which Navy personnel operate -- in close quarters for extended

periods of time -- make[s] them particularly susceptible to con-

tagious respiratory diseases such as COVID-19 and renders mitiga-

tion measures such as social distancing unrealistic.” Id. at 110a.

He observed that many ships are staffed with limited medical per-

sonnel, meaning that crewmembers who develop severe symptoms

“would require a return to port or an emergency medical evacuation

by helicopter,” which “is not always viable.” Id. at 111a. Ac-

cordingly, “[r]estriction of the Navy’s ability to reassign un-

vaccinated personnel in order to mitigate COVID-19 related risks

 25

to units preparing to deploy, or that are deployed, will cause

direct and immediate impact to mission execution.” Id. at 103a.

Admiral Lescher emphasized that those risks are particularly

acute in the Special Warfare and Special Operations Forces groups

(including Navy SEALs) to which respondents belong. App., infra,

106a. Those servicemembers “routinely” deploy in units of as few

as four, so the loss of even one servicemember would “degrade the

effectiveness of [the] unit[] and may compromise the mission.”

Id. at 117a. Their operations “are often conducted in hostile,

austere or diplomatically sensitive environments,” and require

servicemembers “to work in close quarters where social distancing

is not possible,” such as by sitting “shoulder-to-shoulder” for

“an extended duration” on “boats, submersibles, helicopters, air-

craft, or other vehicles that are less than six feet across, and/or

which have limited ventilation.” Id. at 107a. “Additionally,

members may be required to operate in subsea environments and may

have to share diving rebreather devices and inhale one another’s

exhalation.” Id. at 108a.

At the same time, those elite forces “must be fully medically

ready and at peak fitness given that their training and missions

are physically demanding and arduous” and given that they “must be

ready to respond to contingencies and crises around the world” on

“short notice.” App., infra, 114a-115a. For example, “SEALs

conduct insertions and extractions by sea, air, or land; they

 26

capture high-value enemy personnel and terrorists around the

world, carry out small-unit direct-action missions against mili-

tary targets[,] and perform underwater reconnaissance and strate-

gic sabotage.” Id. at 118a. In those circumstances, “[m]edical

conditions or illness[es] create risk, both medical and opera-

tional, not only for the service member afflicted, but for other

members of the unit. As a result, unvaccinated personnel in a

unit degrade the force health protection conditions in the unit,

placing personnel in the unit at risk and degrading the unit’s

ability to safely conduct operations.” Id. at 115a.

Admiral Lescher explained that empirical data supported the

“judgment of each of the Military Services” that “vaccines are the

most effective tool the Armed Forces have to keep our personnel

safe, fully mission capable[,] and prepared to execute the

Commander-in-Chief’s orders to protect vital United States’ na-

tional interests.” App., infra, 109a. He observed that all but

two of the servicemembers across the Armed Forces who have died of

COVID-19 were unvaccinated. Ibid. Conversely, “there have only

been six active duty personnel who have received a booster and had

a breakthrough COVID-19 infection that required hospitalization.”

Ibid. And “[a]mong Reserve and National Guard service members,

97% of those hospitalized with COVID were unvaccinated or partially

vaccinated.” Ibid. Admiral Lescher compared the April 2020 COVID-

19 outbreak on the U.S.S. Theodore Roosevelt -- which resulted in

 27

“more than 4,000 crew removed from the ship and a 51-day loss of

mission” -- to the December 2021 outbreak on the U.S.S. Milwaukee,

whose fully vaccinated crew “were asymptomatic or had mild symp-

toms” and which resulted in only a “minor deployment delay” of an

additional week in port. Id. at 111a; see id. at 110a-111a.

Admiral Lescher thus concluded that “[v]accination against

COVID-19 has proven to be essential in keeping Navy units on mis-

sion” and that “[f]ully vaccinated naval forces are required to

ensure readiness to carry out Navy missions throughout the world.”

App., infra, 103a. He summarized his view in stark terms:

Sending ships into combat without maximizing the crew’s odds

of success, such as would be the case with ship deficiencies
in ordnance, radar, working weapons or the means to reliably
accomplish the mission, is dereliction of duty. The same
applies to ordering unvaccinated personnel into an environ-
ment in which they endanger their lives, the lives of others
and compromise accomplishment of essential missions.
Id. at 110a. Other high-ranking Navy officers -- including the

Chief of Staff of U.S. Naval Special Warfare Command and the Deputy

Chief of Naval Operations -- provided similar assessments. Id. at

95a-101a, 121a-188a. And the Secretary of Defense himself deter-

mined, after “consultation with medical experts and military lead-

ership,” that “mandatory vaccination against [COVID-19] is neces-

sary to protect the Force and defend the American people,” and

that “vaccination of the Force will save lives.” Id. at 67a-68a.

3. Requiring respondents to be vaccinated against COVID-19

is the least restrictive means of furthering the Navy’s compelling

 28

interests in ensuring that members of the Special Warfare community

are as physically prepared as possible to execute their demanding

missions and in minimizing avoidable risks to mission success.

Vaccines are singularly effective at preventing COVID-19 infection

and reducing the severity of illness in the case of a breakthrough

infection. And neither respondents nor the lower courts identified

any viable less restrictive means of furthering the Navy’s com-

pelling interest. To the contrary, they candidly acknowledged

that they believe the Navy must simply tolerate the added risks

posed by deploying unvaccinated personnel on special-operations

missions. 7

4. The court of appeals erred in holding that the Navy lacks

a compelling interest in “vaccinating these 35 [respondents]

against COVID-19.” App., infra, 25a. It is true that the gov-

ernment must demonstrate a compelling interest in denying an ex-

emption to respondents. See Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682, 726-727 (2014). But the Navy has done that here,

demonstrating that it has a compelling interest in ensuring that

all SEALs and other members of the Special Warfare community who

7Even in non-military settings, courts have held in contexts

where preventing transmission is particularly important that a
uniform practice of vaccination may be the least restrictive means
of furthering the government’s compelling interest in preventing
the spread of infectious diseases in a workforce. See, e.g., Does
1-6 v. Mills, 16 F.4th 20 (1st Cir. 2021), cert. denied, No. 21-
717 (Feb. 22, 2022); We the Patriots USA, Inc. v. Hochul, 17 F.4th
266 (2d Cir. 2021) (per curiam), petition for cert. pending, No.
21-1143 (filed Feb. 14, 2022).
 29

are deployed are vaccinated, given the dire consequences if even

a single one of them falls ill on a mission: “Every member” of a

Special Warfare team is “vital,” so “if any one of them were to

contract COVID-19, it would necessarily have an adverse impact to

the mission and to his fellow team members.” App., infra, 136a.

The court did not even acknowledge -- much less engage with -- the

thorough declarations from senior Navy officers. It thus failed

to fulfill its obligation to “give great deference to the profes-

sional judgment of military authorities.” Goldman, 475 U.S. at

507. And in making its own unguided judgment about military needs,

the court committed a series of errors.

First, the court of appeals suggested that the Navy cannot

have a compelling interest in protecting Special Warfare personnel

from COVID-19 because they are exposed to “gunshot wounds, blast

injuries, parachute accidents,” and other similar dangers. App.,

infra, 25a. That is a non sequitur. The risks the court identified

are inherent in the dangerous missions on which members of the

Special Warfare community are deployed; in contrast, the harmful

effects of COVID-19 are substantially preventable with vaccina-

tion. The Navy has a compelling interest in reducing or elimi-

nating preventable risks to health, safety, and mission integrity

wherever it can. Id. at 137a.

Second, the court of appeals observed that some servicemem-

bers, including some respondents, have successfully deployed with-

 30

out being vaccinated. App., infra, 26a. But others have not been

so fortunate; before vaccines were available, the pandemic se-

verely disrupted the Armed Forces, causing more than 2000 hospi-

talizations and 82 deaths. Id. at 109a. In any event, past good

fortune is no guarantee of future success. That vaccines were not

previously available, or that the Navy did not require them until

after full FDA approval, does not mean the Navy lacks a compelling

interest in preventing COVID-19 infections among servicemembers

going forward.

Third, the court of appeals asserted that the Navy’s compel-

ling interest is undermined by the fact that it has “granted tem-

porary medical exemptions to 17 Special Warfare members” because

the court saw no basis for “differentiating those service members

from [respondents].” App., infra, 26a. But respondents demand

permanent religious exemptions and an entitlement to continue

their duties without modification. A Special Warfare member with

a temporary medical exemption generally would not be eligible to

deploy while the exemption was in place, id. at 99a-100a, and would

have to be vaccinated once it ended. In fact, that is just what

has happened: The number of temporary medical exemptions for

Special Warfare Operators has dwindled to four. See p. 7 n.1,

supra. And no member of the Special Warfare community has received

a permanent medical exemption. App., infra, 99a.

 31

Fourth, the court of appeals suggested that the Navy’s oth-

erwise high vaccination rate eliminates its compelling interest in

having these 35 respondents be vaccinated. App., infra, 20a-21a.

But the relevant interest here is not simply achieving “herd im-

munity.” Id. at 51a. Even one SEAL who falls ill -- as an

unvaccinated individual is far more likely to do -- can jeopardize

an entire mission. That is why the Navy has long gone to such

lengths to ensure that every SEAL and member of the Special Warfare

community is as physically prepared as possible. Moreover, the

risks cannot be cabined to these 35 respondents: As the court of

appeals acknowledged, more than 4000 Navy servicemembers have re-

quested religious exemptions. Respondents have sought a classwide

preliminary injunction that would extend the same relief to all of

those servicemembers. And a district court in Florida has granted

a parallel injunction barring the Navy and the Marine Corps from

reassigning two senior officers whose unvaccinated status compro-

mises the availability of their current and prospective commands

-- including an entire guided-missile destroyer. Navy SEAL 1 v.

Austin, No. 21-cv-2429, 2022 WL 534459, at *20 (M.D. Fla. Feb. 18,

2022), application for stay pending, No. 22-10645 (11th Cir.). 8

8 The court of appeals objected that the letters denying

respondents’ requests for religious accommodations failed to “ar-
ticulate [respondent]-specific reasons.” App., infra, 26a. But
each of the letters to which the court referred explains that the
Deputy Chief of Naval Personnel considered the specific facts re-
flected in the materials provided to him by the particular re-
 32
C. Respondents’ Free Exercise Claims Lack Merit

The court of appeals did not address respondents’ Free Exer-

cise claims, and the district court disclaimed reliance on those

claims in declining to stay the injunction. App., infra, 63a.

Moreover, respondents’ Free Exercise claims add little to their

RFRA claims: Because the Navy’s vaccination requirement satisfies

strict scrutiny under RFRA, see pp. 22-31, supra, it necessarily

complies with the most stringent standard that could apply under

the Free Exercise Clause, see Tandon v. Newsom, 141 S. Ct. 1294,

1296 (2021) (per curiam). In other words, if respondents cannot

prevail under RFRA, they cannot prevail under the Free Exercise

Clause. That said, we respond briefly to the lower courts’ in-

correct suggestion that the Navy’s vaccination requirement treats

“secular activity more favorably than religious exercise.” App.,

infra, 51a (citation omitted).

First, the court of appeals mistakenly thought that service-

members with medical exemptions were necessarily eligible to be

deployed. App., infra, 20a, 26a. In reality, a “service member

who receives an exemption or accommodation from the COVID-19 vac-

cination requirement, whether for religious or secular reasons, is

spondent’s commander and made an individualized determination that

denial of an exemption is the least restrictive means to secure
the Navy’s compelling interests in ensuring that its Special War-
fare personnel are fit for duty. See, e.g., C.A. ROA 3302-3303,
3349-3350, 3359-3360 (sealed). Those determinations are entitled
to a presumption of regularity. See Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).
 33

not [physically qualified]” for duty -- and thus not deployable --

“unless he or she obtains separate medical clearance.” Id. at 98a

(emphasis added); see id. at 80a (Trident Order #12) (same, for

special-operations forces). And that “separate” clearance or

waiver process “do[es] not take into account whether a member is

unvaccinated for secular or religious reasons; all unvaccinated

service members are treated the same for purposes of determining

whether they should receive a medical waiver that would render

them fit for special operations duty.” Id. at 98a-99a.

Moreover, those with temporary medical exemptions generally

are not deployable by virtue of the very condition (e.g., preg-

nancy) warranting the exemption, and must get vaccinated when the

temporary condition no longer exists. App., infra, 99a. And “all

requests for permanent medical exemptions from COVID-19 vaccina-

tion for personnel falling under [Special Warfare] authority have

been denied.” Ibid.

In addition, the Navy’s goal in requiring vaccination is to

ensure a maximally healthy force. App., infra, 110a. Vaccinating

someone for whom a vaccine is temporarily medically contraindi-

cated would undermine, not further, that goal. See Doe v. San

Diego Unified School Dist., 19 F.4th 1173, 1178 (9th Cir. 2021);

We the Patriots USA, Inc. v. Hochul, 17 F.4th 266, 285 (2d Cir.

2021), petition for cert. pending, No. 21-1143 (filed Feb. 14,

2022); Does 1-6 v. Mills, 16 F.4th 20, 30-31 (1st Cir. 2021), cert.
 34

denied, No. 21-717 (Feb. 22, 2022). Temporary medical exemptions

are thus categorically different from the permanent religious ex-

emptions respondents seek.

Second, the district court observed (App., infra, 51a-52a)

that servicemembers participating in vaccine clinical trials are

exempt from any requirement to take that vaccine. But respondents

have not identified any Navy servicemember who has received an

exemption based on participation in a clinical trial, and the Force

Medical Officer of the U.S. Naval Special Warfare Command is una-

ware of any Special Warfare “personnel participating in clinical

research trials concerning COVID-19 vaccines.” Id. at 100a. In

addition, the court erred in asserting that servicemembers par-

ticipating in clinical trials “are immediately deployable.” Id.

at 52a. As noted above, that is incorrect; such servicemembers

“would very likely be found [not physically qualified],” id. at

101a, and thus (just like those with religious exemptions) would

have to seek and obtain a medical waiver first. In any event, the

exemption available to a participant in a clinical trial is tem-

porary; a religious exemption, by contrast, is effectively perma-

nent. That defeats any claim that comparable secular activity is

treated more favorably. Cf. Doe, 19 F.4th at 1179 (concluding

that due to its “temporary duration,” a 30-day exception from a

COVID-19 vaccination mandate did not “undermine a school dis-

 35

trict’s interests in student health and safety the way a religious

exception would”).

III. THE EQUITIES OVERWHELMINGLY FAVOR A PARTIAL STAY

The remaining equitable factors overwhelmingly favor granting

the limited partial stay the government seeks here. In its current

form, the district court’s injunction causes direct, irreparable

injury to the interests of the United States and the public, which

“merge” here. Nken v. Holder, 556 U.S. 418, 435 (2009). By

requiring the Navy to ignore respondents’ unvaccinated status in

making deployment, assignment, and other operational decisions,

the injunction impermissibly intrudes on the Navy’s military judg-

ments and threatens the national defense. And respondents would

suffer no irreparable harm from a partial stay that would allow

them to remain unvaccinated without risk of discipline or dis-

charge.

A. Admiral Lescher’s declaration explains at length why and

how the current injunction “will degrade” the “mission readiness”

of special-operations forces; “break[] down good order and disci-

pline”; “unnecessarily limit the Navy’s ability to conduct daily

operations and operational missions”; and risk “mission failure in

contingencies and crises that cause harm to national security.”

App., infra, 114a. Forbidding the Navy from considering respond-

ents’ unvaccinated status in making deployment decisions or other

assignments will jeopardize the success of any missions to which

 36

they are assigned, see id. at 109a-110a, as well as the health and

safety of respondents themselves and the other sailors with whom

they serve, see id. at 116a-117a.

The court of appeals erred in disregarding Admiral Lescher’s

assessment. App., infra, 27a-28a. The court stated that the

government has not demonstrated that the harms described above

will occur “during the pendency of the appeal.” Id. at 27a (ci-

tation omitted). But a crisis requiring deployment of SEALs and

other Naval Special Warfare personnel could arise at any time.

More than half of respondents are assigned to commands that “may

deploy anywhere in the world in the immediate future.” Id. at

118a. And the injunction is already forcing the Navy to deploy

one of the respondents on a submarine -- an environment ripe for

the spread of a contagious respiratory virus -- against its mili-

tary judgment. See p. 2, supra.

The possibility of such deployments is why the Navy considers

it “vital that all members of the [Special Warfare] force be med-

ically fit to * * * deploy on short notice.” App., infra, 114a.

For example, when Somali pirates boarded a U.S.-flagged container

ship in the Indian Ocean on April 8, 2009, taking the crew of U.S.

citizens hostage, the Navy deployed a SEAL team from the United

States (8000 miles away) on short notice, and the SEAL team was

instrumental in eliminating the threat days later and freeing the

last remaining hostage, Captain Richard Phillips. Id. at 115a-

 37

116a. Admiral Lescher warned that if a similar crisis arose to-

morrow, the injunction would require the Navy to ignore the un-

vaccinated status of respondents in making deployment decisions,

thus potentially placing the mission in jeopardy. Id. at 116a.

The court of appeals also discounted the possibility of ir-

reparable harm on the theory that the district court had “clari-

fied” that the injunction only “‘prohibits adverse action against

[respondents] based on their requests for religious accommoda-

tion,’” leaving the Navy free to “make decisions based on other

neutral factors.” App., infra, 28a (citation omitted). But that

purported clarification came in the context of the district court’s

order declining to stay its injunction insofar as it forbids taking

into account respondents’ vaccination status in deploying and as-

signing them. Id. at 60a. And respondents themselves have already

sought to enforce the injunction through contempt proceedings,

asserting that it entitles them to immediate transfer to opera-

tional units; to be assigned or reassigned to particular military

duties; or to train and deploy with operational units. D. Ct.

Doc. 96, at 5-9.

The government has complied with the injunction in good faith

at all times, and respondents’ contempt motion, which remains

pending, lacks merit. See D. Ct. Doc. 110, at 6-13 (Feb. 7, 2022)

(government opposition). But that motion’s very existence vividly

illustrates the intolerable situation the injunction has imposed

 38

on the Navy: Military commanders’ assignment decisions must be

made on pain of contempt, and officers are being forced to explain

and justify those decisions to the district court in sworn decla-

rations. D. Ct. Doc. 111, at 4-74 (declarations from seven of-

ficers). Those compliance and contempt matters are made all the

more burdensome because the district court has -- over the gov-

ernment’s objection -- allowed respondents to proceed under pseu-

donyms, which means that their status as plaintiffs covered by the

injunction is subject to a protective order and thus cannot be

disclosed to the “dozens, if not hundreds, of servicemembers”

throughout the Navy who may be called upon to make decisions about

matters potentially covered by the injunction. Id. at 9.

B. On the other side of the ledger, respondents would not

suffer any irreparable harm if a partial stay were granted. In

seeking the injunction, respondents relied largely on employment-

based harms, such as alleged loss of “pay and advancement oppor-

tunities.” App., infra, 53a. As even the district court recog-

nized, those alleged harms could be fully remedied at final judg-

ment because respondents “could be compensated for their losses”

-- e.g., through reinstatement and backpay. Id. at 54a; see, e.g.,

10 U.S.C. 1552(a)(1) (authorizing military departments to “correct

any military record” to “correct an error or remove an injustice”);

App., infra, 161a-162a (describing additional remedies available

through intramilitary processes). The availability of such “ade-

 39

quate compensatory or other corrective relief * * * weighs heav-

ily against a claim of irreparable harm.” Sampson v. Murray, 415

U.S. 61, 90 (1974) (citation omitted).

In any event, the only question at this juncture is whether

respondents would suffer any irreparable harm from the partial

stay the government is seeking. Consistent with the injunction,

the Navy will not discharge or discipline respondents based on

their religious exemption requests during the pending appeal. But

neither respondents nor the lower courts have identified any ir-

reparable harm that respondents would face if the Navy were per-

mitted, during the appeal, to take into account their unvaccinated

status in making military judgments about deployments and other

assignments -- as the Navy does for every other servicemember,

including those who receive exemptions from a vaccination require-

ment for nonreligious reasons.

The court of appeals effectively excused respondents from

demonstrating such irreparable harm, stating that “[n]o further

showing is necessary” in light of respondents’ allegations that

the Navy’s policies violate their “First Amendment freedoms.”

App., infra, 28a. But the limited stay the government requests

here would not result in any “loss of First Amendment freedoms,

for even minimal periods of time,” Elrod v. Burns, 427 U.S. 347,

373 (1976), because respondents would remain free to adhere to

their stated religious beliefs by declining to become vaccinated

 40

without being discharged or otherwise disciplined. And to the

extent the partial stay were to result in any lost training or

promotional opportunities, respondents could be granted relief if

they ultimately prevail.

Finally, the court of appeals identified no legitimate public

interest in denying the partial stay the government seeks here.

The court stated that “injunctions protecting First Amendment

freedoms are always in the public interest.” App., infra, 29a

(citation omitted). But that reasoning was entirely derivative of

the court’s unsound view of the merits of respondents’ claims.

And whatever the merits of respondents’ challenges, the public has

no interest in an injunction that requires the Navy to subordinate

its professional judgment that vaccination is necessary for mili-

tary readiness to the lower courts’ contrary views.

CONCLUSION

This Court should partially stay the district court’s pre-

liminary injunction pending the completion of further proceedings

in the court of appeals and, if necessary, this Court. Specifi-

cally, the injunction should be stayed insofar as it precludes the

Navy from considering respondents’ vaccination status in making

deployment, assignment, and other operational decisions.

Respectfully submitted.

ELIZABETH B. PRELOGAR
Solicitor General

MARCH 2022