Navy appeals court decision barring punishment for SEALs who refused vaccine

Government attorneys appealed a Texas judge's finding that the Navy's strict religious accommodation process violates the religious freedoms of 35 sailors who r...

The DoD Reporter’s Notebook is a weekly summary of personnel, acquisition, technology and management stories that may have fallen below your radar during the past week, but are nonetheless important. It’s compiled and published each Monday by Federal News Network DoD reporters Jared Serbu and Scott Maucione.

Justice Department attorneys filed formal notice with a federal appeals court on Friday, saying they’re challenging a Texas judge’s decision that prohibits the Navy from taking action against 35 special operators who’ve refused the COVID-19 vaccine because of religious objections.

Meanwhile, the government has also filed a new challenge to the Texas court’s jurisdiction, and arguing that the case should be moved to a different federal district court, perhaps one more sympathetic to the Navy’s religious accommodation process.

Judge Reed O’Connor granted a preliminary injunction in the lawsuit on Jan. 3, noting that the Navy hasn’t approved a religious accommodation for any vaccine in the past seven years. Instead, he found, the service merely “rubber stamps” each request with a denial. The court ruled the Navy’s process likely violates the Religious Freedom Restoration Act and the First Amendment because the government hasn’t shown a sufficient compelling interest in mandating vaccines over other alternatives.

The government hasn’t yet laid out its arguments challenging that injunction in the Fifth Circuit, but in separate filings, it’s also arguing the case should be dismissed, or at a minimum be moved out of Texas, and the reputationally conservative Fifth Circuit, entirely.

In a Jan. 14 motion, attorneys claimed no court can hear the case yet because the sailors challenging the mandate haven’t exhausted all of their administrative appeals, so the case isn’t “ripe” for judicial review. Judge O’Connor already essentially rejected that argument when he found the Navy’s entire process is “theater,” and that it’s a near certainty that each religious exemption will be denied.

But the government is also arguing the case must be transferred to a district court in Washington, D.C., Eastern Virginia, or Southern California, partly because those are the venues where DoD, the Navy and the Navy’s Special Warfare Command “reside” for legal purposes, and partly because, they argue, the case has no real connection to the Northern Texas district where the lawsuit was filed.

Attorneys for the sailors, most of whom are still anonymous, argued the Texas venue was proper because one of the plaintiffs is assigned to a Navy Reserve unit in Fort Worth. That unit itself is in the district, but in a separate affidavit from the sailor’s commanding officer, the government claimed the sailor actually lives outside the district.

The government claims the physical address of that particular Navy Reserve base isn’t enough to warrant adjudicating a lawsuit against top DoD and Navy officials in a Texas court.

“To find otherwise would strip [federal law] of its meaning because the Department of Defense likely would ‘reside’ in every district, and thus there would be nationwide venue in claims against the military,” attorneys wrote. “At most, all that occurred with respect to Plaintiff Navy SEAL 1 is that paperwork concerning his religious exemption request was forwarded to Navy decision-makers in Arlington, Virginia. Venue in this district hinges entirely on this thin reed, and it is not proper.”

The injunction barring “adverse action” against the 35 sailors was one of just several recent setbacks the government has faced with regard to its vaccine mandates. While no court has held the military’s vaccine mandates are illegal, a separate federal judge, also in Texas, ruled on Friday that the government’s mandate for federal civilian employees is, and blocked enforcement of that mandate nationwide.

That court drew, in part, from the reasoning in a recent Supreme Court decision that struck down the Occupational Safety and Health Administration’s vaccine mandate for large private employers. —JS

Military services made end strength work out in 2020, but challenges may be ahead

The military services are feeling the effects of COVID-19 when it comes to bringing fresh blood into the ranks as they begin increasing bonuses and other incentives to get people to join.

A new RAND Corporation study shows the extent to which the pandemic hurt enlisted recruiting in the first six months of 2020, and it seems that the services found a way to get by.

While closed schools and recruitment centers didn’t help bring in new people, almost all of the services saw an increase in retention rates and a drop in accessions.

“Retention rose, especially for retirement-eligible personnel, for the Army, Navy, and Air Force,” the authors of the study wrote.

The study states that the services put an emphasis on retention to meet end strength goals.

That balance brought most of the services to their end strength goals for 2020, even when some services were expanding.

The Marine Corps saw lower accessions and retention, however, the service is undergoing a transformation to become a smaller service and the authors attribute that policy to the decrease rather than COVID.

Technically, the services met their yearly accessions goals, but the RAND authors say there is a caveat to that statement.

“Each service essentially reached 100% of its accession goal in 2020, suggesting successful recruiting despite the disruption of the pandemic,” they wrote. “It is possible that the services dropped their accession goals midyear and met 100% of the new, lower goal, rather than meeting their original accession goals. While the Navy, by and large, kept its accession goal constant relative to 2019, the Army, Air Force, and Marine Corps substantially reduced their goals in FY 2020 relative to 2019. For the Air Force, the goal dropped by nearly 20% (from 32,421 to 26,373); the Marine Corps’ goal dropped by 12%, and the Army’s goal dropped by 10%.”

There is also a silver lining that came from pandemic, the armed forces saw an increase in enlisted contract quality, meaning the talent of those signing contracts was higher. The military saw people scoring higher on the Armed Forces Qualification Test signing up than in previous years.

As the pandemic drags on, the military services’ actions are showing that a focus on retention will not sustain the end strength.

Earlier this month, the Army, for the first time, started offering a $50,000 enlistment bonus.

“We are still living the implications of 2020 and the onset of COVID, when the school systems basically shut down,” said Maj. Gen. Kevin Vereen, head of Army Recruiting Command, told the Associated Press. “We lost a full class of young men and women that we didn’t have contact with, face-to-face.” — SM

DISA working to build ‘Container-as-a-Service’ for DoD cloud users

Ubiquitous cloud computing terms like Infrastructure-as-a-Service, Platform-as-a-Service and Software-as-a-Service are starting to become more commonplace throughout DoD. Next up is Container-as-a-Service.

The Defense Information Systems Agency’s Hosting and Compute Center (HACC) has spent the last several months standing up a new project focused on containerized computing, using existing commercial technologies like Kubernetes.

The allure, officials think, is that the new approach will make it easier for DoD customers to embrace hybrid cloud approaches, since in theory, containerized software can run in a government data center, a commercial cloud, or on the battlefield without really caring about the actual computing environment.

“A server is a server is a server,” Sharon Woods, the HACC’s director said last week during a forum hosted by AFCEA’s Washington, D.C. chapter. “I think everyone’s relatively familiar with containers as a really important enabler of operating in the cloud, but we want to actually put that on-prem in the data centers. I think sometimes that raises an eyebrow for folks. They hadn’t even necessarily heard or conceived of that. But there’s a lot of efficiencies and capabilities that you gain with a container-based approach.”

Woods offered few details about the container project’s progress, but said the approach will be increasingly important as DoD transitions more of its computing dependencies into commercial environments under the forthcoming Joint Warfighter Cloud Capability contracts. Once that happens, the department will still need ways for applications and data to operate seamlessly with its own data centers for resiliency’s sake, especially outside the continental U.S.

“If you think about it, there’s the DoD transport, you have commercial transport, which will now become infinitely more available and accessible to us through JWCC, but then you have to have a level of resiliency and redundancy while also complying with data sovereignty,” she said. “So the on-prem cloud and DoD data centers become super critical. If things go down or communication gets disrupted, what do you do with your data? So of these different physical presences, plus the different transport networks, you have to overlay all of that to understand where we should position ourselves based on the mission of the Department of Defense.” —JS

VA Committee wants more information on toxic exposure

The House Veterans Affairs Committee is trying to understand more about service members’ experiences with toxic substances as it continues advocating for a bill to expand benefits for veterans impacted by them.

The Defense Department has a long history of exposing its employees to substances that have long-term health effects — Agent Orange and burn pits being some of the most famous.

The committee is asking veterans living with the effects of exposure to toxic substances to share their stories and their experiences trying to get benefits for their health issues.

Rep. Mark Takano (D-Calif.), the chairman of the Veterans Affairs Committee, is sponsoring the Honoring our PACT Act, which addresses gaps in benefits for toxic exposure.

The bill would provide health care to as many as 3.5 million veterans impacted by hazards, establish illnesses in connection with burn pits, expand Agent Orange exposure coverage and create a presumption of exposure to radiation, among other things.

“We made a promise to service members when we sent them into harm’s way that we would care for them when they came home,” Takano said in a statement. “The Congressional Budget Office estimate is in, we now know the true cost of that promise, and we cannot renege on our responsibility. When we go to war we don’t nickel and dime the Department of Defense, and we cannot try to pinch pennies when it comes to covering the care for toxic-exposed veterans.”

The bill has the backing of 11 veterans service organizations.

CBO estimates the bill will cost more than $300 billion through 2031. — SM

Military awards contract for largest overseas hospital

The military is preparing to build its largest overseas hospital after awarding a nearly $1 billion contract for construction in Germany.

Züblin and Gilbane Joint Venture will built the Rhine Ordnance Barracks-Medical Center Replacement, a 985,000-square-foot facility with nine operating rooms, 120 exam rooms and 68 beds. The hospital will have the ability to expand 25 additional beds in emergencies.

Artist’s rendering of the Rhine Ordnance Barracks Medical Center Replacement. Photo courtesy of the Army Corps of Engineers.

“We are incredibly proud of our team’s contribution to achieve this critical milestone that will enable us to provide our service members and their families with the best facility modern medicine has to offer,” Col. Patrick Dagon, U.S. Army Corps of Engineers, Europe District commander, said in a release.

Construction should be completed by the end of 2027.

The hospital will replace the Landstuhl Regional Medical Center, which is nearly 70-years-old and provides treatment to about 200,000 military personnel, civilians and dependents in Europe.

The contract is part of a larger campus construction that has $200 million already invested in it to build bridges, infrastructure and utilities.

The German government is also investing about $180 million.

“The U.S. invested approximately $350M annually in construction projects in the past few years, which are executed by the Federal Construction Administration.   This demonstrates the excellent reputation the German Construction Administration enjoys with our international partners,” said Sören Bartol, parliamentary state secretary at the Federal Ministry of Housing, Urban Development and Construction.  “Furthermore, these investments boost Germany’s economy and preserve jobs in economically distressed regions.” — SM

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