Navy Says Destroyer is ‘Out of Commission’ After Florida Judge Blocks Removal of Unvaccinated CO

March 8, 2022 6:35 PM - Updated: March 9, 2022 1:40 PM
An Arleigh Burke-class destroyer transits the Atlantic Ocean on Nov. 25, 2021. US Navy Photo

An East Coast guided-missile destroyer is “out of commission” after a federal judge in Florida prevented the Navy from removing its commanding officer for his refusal to get vaccinated against COVID-19, the service said in ongoing legal action.

Judge Steven Merryday ruled in a February decision that the Navy cannot remove an unnamed commanding officer despite what the service says is a lack of confidence in his ability to lead because his religious objections to the COVID-19 vaccine are protected by federal law.

The Navy, on the other hand, has said it will not deploy anyone who is not fully vaccinated, and, in this particular case, will not allow a commander it no longer trusts to lead one of its ships.

This has led to an impasse as the Navy awaits to hear if the Court of Appeals for the Eleventh Circuit will hear the case.

But legal experts told USNI News the case speaks to a potentially bigger problem for the military as it could set a new precedent where federal judges no longer defer to the military when it comes to personnel and operational decisions.

The judge’s order is part of a multi-branch lawsuit suing Department of Defense officials for rejecting religious objections to the COVID-19 vaccination. The commanding officer joined the lawsuit after he determined he would be relieved from his duties over his lack of vaccination.

“The court’s order effectively requires the Navy leave a subordinate commander in command of a warship, despite his senior officer’s questions relating to his fitness to discharge his duties as ordered,” wrote Vice Adm. Daniel Dwyer, commander of U.S. Second Fleet, in his declaration, included in the government’s motion for the preliminary injunction to be stayed. “Under no circumstances would the Navy typically deploy a commander in an operational capacity with whom his or her superior officers have such reservations.”

The order “effectively places a multi-billion dollar guided-missile destroyer out of commission,” according to the government’s motion.

“For example, if it becomes necessary to deploy an East Coast-based surface ship in response to global events in Ukraine (or elsewhere), the Navy will not deploy the Commander’s vessel,” according to the motion. “In this way, the Court’s order will have a wide-ranging impact on Navy operations and national security.”

Mathew Staver, founder and chairman of Liberty Counsel, the Christian legal ministry representing the commanding officer, takes issue with the idea that the ship is undeployable, he told USNI News.

While the ship has not deployed, it has been underway even as the legal proceedings were unfolding, Staver said. The ship returned to its homeport after training at sea last week, Staver said.

“There was no loss of confidence until they got the temporary injunction. And then they invented that they lost confidence because of the religious accommodation request,” Staver said.

Slate first reported the effects of the motion on Friday.

Courts and military operations

US Navy Court Room

At the center of the lawsuit is the Religious Freedom Restoration Act (RFRA), a 1993 Congressional act that was meant to protect a person’s religious freedoms against government laws.

RFRA was passed in order to ensure the government accommodated religion in the least restrictive manner, USNI News previously reported. The law sets up a two-prong legal test requiring the government, if challenged, to show the compelling interest for passing a law and that it uses the least restrictive means.

Federal judges usually defer to the military and shied away from involvement in the service’s day-to-day, a practice established by the Supreme Court, said Philip Cave, partner at Cave & Freeburg, LLP, and a former Navy JAG.

This was also discussed prior to the passing of RFRA, according to a July 27, 1993 Senate committee report on the law. Federal courts would use the compelling government interest test in evaluating claims of religious freedom in the military, with the committee “confident that the bill will not adversely impair the ability of the U.S. military to maintain good order, discipline, and security.”

“The courts have always recognized the compelling nature of the military’s interest in these objectives in the regulations of our armed services,” according to the committee report.

“Likewise, the courts have always extended to military authorities significant deference in effectuating these interests. The committee intends and expects that such deference will continue under this bill.”

In the motion to stay the preliminary injunction, attorneys for the government wrote that the federal courts consistently determined that the decisions for who should lead commands is the role of the military and political branches and outside of the judiciary.

“By ordering that these two Plaintiffs be kept in command (in the case of Navy Commander) or be placed in command (in the case of Lieutenant Colonel 2), the Court improperly took control of the Navy’s and the Marine Corps’ command assignments, stepping beyond its constitutional limits and improperly stepping into the role of those officers entrusted to run the military,” according to the motion,

Merryday disagreed, finding that RFRA provided enough of a legal window to allow the courts to prevent the Navy from removing the commanding officer due to his religious objections to the COVID-19 vaccine.

It is an unusual decision, said Eugene Fidell, an adjunct professor at New York University’s law school.

“Until the vaccine mutiny that we’re currently in the middle of, this was completely unheard of…,” Fidell said. “this is a case in which I think the judges have ripped pages out of the history books, out the law books, in order to reach this quite preposterous conclusion.”

The Military’s Health and the Law

A Nurse Corps Officer with Branch Health Clinic on Marine Corps Air Station Iwakuni, prepares vaccines at MCAS Iwakuni, Japan, Feb. 2, 2022. US Marine Corps Photo

Under RFRA, the Navy needs to show that even if the vaccine mandate is of a substantial burden on a person’s religious beliefs, which the Navy agrees it can be, vaccination is the less restrictive means to prevent COVID-19 and is of compelling government interest.

The plaintiffs argue that there are less restrictive means to preventing COVID-19 that do not involve vaccination. These include masking, testing and social distancing.
In the preliminary injunction and his follow-up order denying a stay, Merryday agreed with the plaintiffs, noting that the commanding officer was able to lead his ship during the pandemic before vaccination existed.

“For example, reason suggests that the defendants might show why the Navy cannot — in the facts of his actual performance — accommodate Navy Commander’s service on his surface missile destroyer now, when 99 percent of the force is vaccinated and the relatively weak and transient Omicron variant is dominant, even though Navy Commander served in the same command on the same destroyer, including on a 300-day mission with his 320-member crew, entirely without vaccination during the many months of the height of the pandemic and without and unmanageable consequence,” Merryday wrote.

The Department of Defense decided that a fully vaccinated force is the only possible way to prevent COVID-19 within the military. Booster shots are not mandated.

Within the Navy, particularly, communicable disease can spread because of the tight quarters in which sailors live on ships, Dwyer wrote.

“This harm is not lessened by the fact that the vast majority of the force is vaccinated; the presence of unvaccinated members of the forces still poses a significant threat to the Navy’s mission,” he wrote.

Chief of Naval Operations Adm. Michael Gilday was the final say in the appeals process for any sailor, including the commanding officer, according to his declaration. While he considered each of the religious beliefs sincerely held, the needs of the military outweighed the freedoms of the individual, he wrote in his declaration.

“Particular to this officer’s request, lesser restrictive means will not achieve the compelling government interest,” according to Gilday’s declaration. “The Navy is committed to accommodating every Sailor’s practice of his or her religious beliefs which do not have an adverse effect on military readiness, unit cohesion, good order and discipline, or health and safety.”

Going forward

SEALs training off Coronado, Calif., in 2018. US Navy Photo

Liberty Counsel aims to turn this lawsuit into a class action, which will extend the judge’s decision to the whole of the military instead of just the listed plaintiffs.

It is similar to what the lawyers in the Navy SEALs case are attempting, although that class action would be limited to the Navy, while this case would cover all services, Staver said.

Fidell finds the case ironic, when looking at the Navy’s treatment of Capt. Brett Crozier, who was relieved from his role as the commanding officer of USS Theodore Roosevelt for going against naval orders to help his sailors, Fidell said.

“Now, we’re in a position where an officer who refuses the minimal demands of personally getting behind a management decision, he’s protected,” Fidel said. “But Capt. Crozier gets fired. This is upside down.”

It is a bad situation made worse by the Russian invasion into Ukraine. While it is unclear if the commanding officer’s ship was on track to be deployed, the Navy cannot afford to have a ship unavailable because it cannot deploy its commanding officer, Fidell said.

It is also a case, when combined with the Navy SEALs lawsuit in the Fifth Circuit, that has the ability to set precedent for the military going forward.

Giving the courts the ability to interfere with command decisions could be corrosive and detrimental to national security, Fidell said.

Cave agreed, saying that it sends a bad message when a commanding officer goes against an order from the service. In addition to affecting personnel decisions, the outcome of this lawsuit could affect readiness.

Staver also sees this case as possibly precedent-setting, albeit in a different way than Cave and Fidell.

“But I think it sets a big precedent that the military is bound by the law, and the military has to honor the Religious Freedom Restoration Act,” Staver said.

Merryday will next hear the case during an evidentiary hearing Thursday. The government has also filed to appeal Merryday’s preliminary injunction.

Heather Mongilio

Heather Mongilio

Heather Mongilio is a reporter with USNI News. She has a master’s degree in science journalism and has covered local courts, crime, health, military affairs and the Naval Academy.
Follow @hmongilio

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