Navy Settles Lawsuit Over COVID Vaccine Mandate

Written by John Michael-Dumais on July 31, 2024. Posted in Current News

The U.S. Navy has settled a long-standing lawsuit over its COVID-19 vaccine mandate, marking a partial victory for thousands of sailors, including Navy SEALs, who refused the vaccine on religious grounds, Military.com reported.

The agreement in U.S. Navy SEALS 1-26 v. Biden, announced July 24, ensures that affected service members will have their records corrected, according to the nonprofit First Liberty Institute and law firm Hacker Stephens LLP, which represented the plaintiffs. Records will be protected for the next three years against discrimination by promotion boards based on religious accommodation in vaccine refusal.

The settlement also stipulates the Navy will restore pre-existing policies around religious exemption requests and provide more training for commanders who review them.

While the settlement includes no admission of guilt or wrongdoing, the Navy agreed to pay $1.5 million to he plaintiffs’ attorneys for legal fees.

Legal experts hailed the settlement as a significant step toward holding the military accountable for its handling of religious accommodation requests.

Danielle Runyan, senior counsel at First Liberty Institute, described the case as “long and difficult” but emphasized that “the Navy SEALs never gave up.”

“We are thrilled that those members of the Navy who were guided by their conscience and steadfast in their faith will not be penalized in their Navy careers,” she said in a press release.

Kacy Dixon, a major in the U.S. Air Force serving as judge advocate general (attorney), told The Defender the settlement was a welcome “technical win … given the obvious violations by the Department of Defense and the hard-fought litigation that took place over the course of three years.” Dixon stressed that her views do not reflect the position of the U.S. Department of Defense (DOD).

While celebrating the settlement for addressing some immediate concerns, current and former service members who spoke with The Defender said future legal efforts must address full restitution for the harms suffered from the vaccine mandate.

Several critical issues still to be resolved include reinstatement of discharged personnel and compensation for losses suffered, including career setbacks, lost wages and healthcare costs.

Meanwhile, multiple lawsuits across different military branches are still in progress, seeking to address the broader impacts of the vaccine mandate.

Case ‘created a foothold for future wins’

The roots of the legal battle trace back to August 24, 2021, when Defense Secretary Lloyd Austin mandated COVID-19 immunization for all military personnel.

When the mandate was issued, a significant portion of military personnel had already contracted COVID-19, with the death of 41 service members attributed to the virus, according to Military.com.

Of the approximately 17,000 service members refusing the vaccine on religious or medical grounds, over 8,400 were fired across all branches of the military, according to Military.com. Many were blocked from advancing in rank and some were even forced to repay their signing bonuses — up to $7,000 — according to Daily Mail.

By March 2022, when the Navy halted its policy of discharging unvaccinated service members, the Navy had rejected all 4,184 religious exemption requests submitted by active and reserve sailors.

In response to the mounting pressure to vaccinate, a group of Navy SEALs in November 2021 filed a lawsuit alleging the Navy and the DOD were violating their First Amendment rights by denying their requests for religious exemptions based on the Religious Freedom Restoration Act (RFRA), the Administrative Procedure Act and DOD and Navy regulations.

The plaintiffs cited objections to the mRNA technology used in several variations of the vaccine, the reported adverse effects — including myocarditis, admitted by DOD in June 2021 — and the use of cell lines from aborted fetuses to develop the vaccines.

In February 2022, the plaintiffs won their first major victory against the military’s vaccine mandate when a U.S. District Court in Texas barred the Navy from dismissing personnel who declined the vaccine on religious grounds. The court argued the mandate violated the RFRA and the First Amendment and said the DOD’s process for handling religious exemptions was nothing but “theater.”

Judge Reed O’Connor’s order began with, “Our nation asks the men and women in our military to serve, suffer, and sacrifice. But we do not ask them to lay aside their citizenry and give up the very rights they have sworn to protect.”

The case was later expanded into a class action for about 3,000 Navy members with religious objections to the vaccine.

The U.S. Court of Appeals for the 5th Circuit upheld the injunction. The U.S. Supreme Court in March 2022 partially upheld the injunction but granted the government’s request be make deployment and assignment decisions based on a person’s vaccination status.

However, the landscape shifted in December 2022, when Congress rescinded the vaccine mandate as part of the 2023 National Defense Authorization Act.

Even after the DOD rescinded its vaccine mandate in January 2023, the 5th Circuit in July 2023 ruled that the case could continue in the district court to evaluate the Navy’s broader religious discrimination that came to light because of the mandate.

In February 2024, the district court ordered the parties into mediation, paving the way for the settlement reached this month.

As part of the settlement, the Navy will re-review personnel records of all class members to remove adverse information related to non-compliance with the COVID-19 mandate. This applies to members still employed in March 2022 and those who elected to leave service.

The Navy also agreed to post a statement affirming respect for religious service members and provide more training for commanders who review religious accommodation requests.

Navy Commander Robert A. Green Jr., a class member in the lawsuit and author of the CHD imprint series book, “Defending the Constitution behind Enemy Lines: A Story of Hope for Those Who Love Liberty,” told The Defender he was grateful for the legal team’s work. “The lawyers did a great job in stopping the ongoing harms.”

Former Army Green Beret Captain John Frankman also recognized the achievement. “The lawyers did the job they were supposed to do,” he told The Defender. “By getting the [implied] admission of guilt, they created a foothold for future wins.”

Settlement ‘a step forward’ but not enough, some military members say

While the settlement represents a step forward, several military members argued that future settlements should address all the harms caused by the vaccine mandate, including:

1. Reinstatement and career restoration. Pam Long, an Army veteran and director of CHD’s Military Chapter, argued that the settlement doesn’t adequately address career impacts by being denied training opportunities and positions needed to build a strong service record for promotion.

“To add insult to injury, many refusers know they are blackballed by senior leaders for disobeying an unlawful order, and will not be promoted or placed in positions even with stellar service records,” Long said.

Green said that he experienced significant career disruption. “I was banned from my building and fired from my job. They sent me home for seven months. They didn’t want to deal with me.”

Although he wasn’t discharged outright, Green’s career was halted, like many others in the military, who “couldn’t have any kind of career progression,” he explained. “Just making a note on a record does not repair most of these harms.”

Green called on the DOD to offer service members full reinstatement to their previous ranks and positions, including pay and seniority levels equivalent to what they would have been entitled to had they remained in service.

Frankman faced similar challenges. “I had a deployment taken from me, my team time got cut short. Ironically, I was supposed to teach ethics at West Point, but I was not allowed to pursue that career.” Frankman left the service at the end of his initial three-year enlistment term in 2022.

2. Financial compensation and back pay. The settlement did not include provisions for financial compensation or back pay for affected service members.

Green wrote on X (formerly Twitter) that no compensation was offered to the class members “to deal with the significant financial, physical, emotional, and mental toll for the ordeal they underwent.” He called for the full and automatic restitution of back pay.

In his objection, written before the settlement was finalized, Green said:

“Many reservist class members were barred from performing their drill periods and lost a source of income that they had previously relied on before the mandate. A number of class members had bonuses wrongfully recouped.”

Green cited a June 24 ruling in Benton v. BlueCross BlueShield of Tennessee where an employee won nearly $700,000 for being fired for refusing the COVID-19 vaccine on religious grounds, arguing this showed the potential value of monetary damages.

He also noted the three class action lawsuits still in progress seeking back pay for military members.

Frankman also argued for financial compensation. “It is likely that only significant punitive damages could make many class members whole” for all of the damages caused by DOD actions. He argued that such damages could amount to $2 billion just for the class members of the SEALs v. Biden suit.

Long said CHD’s Military Chapter would continue advocating for compensation in all military suits still underway.

. Accountability for military leadership. A recurring theme among the military members interviewed by The Defender was that the settlement did not address accountability by military leadership.

They argued that the 2003 case Doe v. Rumsfeld established that the DOD would not force experimental vaccines on its members.

CHD made a similar argument in 202, in a lawsuit alleging the FDA approval of Pfizer’s Comirnaty COVID-19 vaccine was a bait-and-switch tactic that allowed the military to force people to take the experimental version of the vaccine while claiming it was the fully licensed version.

“Without the accountability piece — without holding responsible those military leaders, and specifically those Navy leaders who violated the law and the religious freedoms of these service members — it will happen again,” Green said.

Dixon agreed. “This settlement is lacking in true accountability for the wrongs committed within the department,” Dixon said. “For many servicemen and women, the fight is not yet over.”

These views echo an open letter published in January by 200 service members — including Green and Frankman — calling for accountability by those who “enabled lawlessness and the unwilling experimentation on service members.”

4. Health concerns and vaccine injuries. While not directly addressed in the settlement, health concerns remain a significant issue.

“How do you restore a person’s health after a reaction to a mandated experimental vaccine and who was then also denied benefits as a service-related disability?” Long asked.

Frankman said he heard several stories from fellow service members of health problems post-vaccination.

Green called on the Navy to establish a $200 million fund to support the medical, mental health and unemployment claims of class members for at least five years.

The January open letter also cited physical harms, including “debilitating vaccine injuries” and loss of life.

Responding to the settlement, retired Air Force Col. Thomas Rempfer, co-author of “Unyielding: Marathons Against Illegal Mandates” published in June, posted this on X:

See more at The Defender 

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