Amicus Curiae Brief — Israel Alvarado, et al., Petitioners v. Lloyd J. Austin, III, Secretary of Defense, et al.

No. 23-717

In the

Supreme Court of the United States

ISRAEL ALVARADO, et al.,

Petitioners,

v.

LLOYD AUSTIN, III,

in his official capacity as

Secretary of Defense, et al.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

BRIEF OF AMICI CURIAE CHAPLAIN

ALLIANCE FOR RELIGIOUS LIBERTY,

INTERNATIONAL CONFERENCE OF

EVANGELICAL CHAPLAIN ENDORSERS, and

ASSOCIATED GOSPEL CHURCHES in Support

of Petitioners

Frederick W. Claybrook, Jr.

(Counsel of Record)

Claybrook LLC

655 15th St., NW, Ste. 425

Washington, D.C. 20005

(202) 250-3833

rick@claybrooklaw.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

STATEMENTS OF INTEREST ................................. 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

I.

The Chaplains’ Case Is Not Moot, as the

Courts Can and Should Provide Them

Effective Relief to Ameliorate the Injuries

They Wrongly Suffered to Their Military

Careers ............................................................. 3

II.

DoD’s Recent Treatment of the Religious

Rights of Its Chaplains Demonstrates

That the Requested Relief Is Not Moot,

But Needed ....................................................... 6

CONCLUSION............................................................ 9

ii

TABLE OF AUTHORITIES

Cases

Chafin v. Chafin, 568 U.S. 165 (2013) ................... 3, 7

Franks v. Bowman Transp. Co.,

424 U.S. 747 (1976) ................................................. 5

Gateway City Church v. Newsom,

141 S. Ct. 1460 (2021) ............................................. 8

Green v. Cnty. Sch. Bd. of New Kent Cnty.,

391 U.S. 430 (1968) ................................................. 5

In re England, 375 F.3d. 1169 (D.C. Cir. 2004) ......... 7

Katcoff v. Marsh, 755 F.2d 233 (2d Cir. 1985) ........... 7

La. v. United States, 380 U.S. 145 (1965) .................. 5

MOAC Mall Holdings LLC v. Transform

Holdco LLC, 598 U.S. 288 (2023)............................ 3

Roman Cath. Dio. of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) ................................................. 9

S. Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) ............................................ 8-9

Tandon v. Newsom, 141 S. Ct. 1294 (2021) ............... 8

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021) ............................................... 6

iii

W. Va. v. EPA, 142 S. Ct. 2587

(2022) ................................................................... 3, 7

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) ................................................. 5

Statutes

Pub. L. 112–239, div. A, title V, §533,

Jan. 2, 2013, 126 Stat. 1727, as amended

by Pub. L. 113–66, div. A, title V, §532(a),

Dec. 26, 2013, 127 Stat. 759 ............................. 2-3, 8

42 U.S.C. § 2000bb-1(c)............................................... 5

Other Authorities

OPNAVINST 1730.1, Chaplains Manual

1-2-1-3 (Dep't of the Navy Oct. 3, 1973) ................. 7

P. Thompson, The United States Army

Chaplaincy (1978).................................................... 7

1

STATEMENTS OF INTEREST 1

Chaplain Alliance for Religious Liberty

(“CALL”) is an organization of chaplain endorsers, the

faith groups that provide chaplains for the U.S.

military and other agencies. CALL speaks for more

than 2,600 chaplains serving the Armed Forces from

many different denominations. Since 2011, we have

led the effort to secure the religious liberties of

chaplains and those whom they serve. We enable all

chaplains to serve to the broadest extent of their

constitutional mission and endorsement, and we

nurture and support an environment that cherishes

the role of chaplains in American culture. CALL

exists to ensure that chaplains can defend and provide

for the freedom of religion and conscience that the

Constitution guarantees all chaplains and those

whom they serve. We join together to pursue a nation

where all chaplains, and those whom they serve,

freely exercise their God-given and constitutionally

protected religious liberties without fear of reprisal.

The

International

Conference

of

Evangelical Chaplain Endorsers (“ICECE”) has as

its main function to endorse chaplains to the military

and other organizations requiring chaplains that do

not have a denominational structure to do so, avoiding

the entanglement with religion that the government

would otherwise have if it determined chaplain

1 No counsel for any party authored this brief in whole or

in part. No person or entity other than amici and their

counsel made a monetary contribution intended to fund the

preparation or submission of this brief. Timely notice was

given to all parties.

2

endorsements. ICECE safeguards religious liberty for

all.

The Associated Gospel Churches (“AGC”)

has been a chaplain endorsing agency for the Armed

Forces Chaplaincy for over eighty years, since

1942. AGC currently endorses about one hundred

military chaplains serving in all branches of service

on active duty and in the Guard and Reserves. AGC

is firmly committed to supporting our U.S. Armed

Forces chaplains, most importantly their right of

conscience and the free exercise of religion. The free

exercise of their religious duties is also of critical

importance to forming the conscience of our troops,

which helps restrain them from committing atrocities

of the like that have outraged the world throughout

history. AGC believes that, when, as here, the

military has violated the constitutional rights of its

chaplains, the military should recompense its

chaplains to the maximum degree consistent with

military preparedness.

SUMMARY OF ARGUMENT

While a summary dismissal for mootness might

not normally command this Court’s attention, this

case does, for two main reasons, besides the fact that

the case is not moot because effective relief is still

available to the Plaintiff Chaplains. First, chaplains

play a unique and critical role in preserving and

fostering religious freedom among our military

members. Congress has recognized this in § 533 of the

FY 2013 National Defense Authorization Act, as

3

amended. 2 Second, this matter involves the type of

restrictions due to the Covid-19 situation that this

Court repeatedly addressed because they violated the

Free Exercise Clause. The Fourth Circuit’s order

dismissing the Chaplains’ appeal as moot should be

vacated and the matter remanded for appropriate

consideration.

ARGUMENT

I. The Chaplains’ Case Is Not Moot, as the

Courts Can and Should Provide Them

Effective Relief to Ameliorate the Injuries

They Wrongly Suffered to Their Military

Careers

The appropriate legal standards are not

challenged by DoD in this action. A case is not moot

if “any effectual relief whatever” remains available,

MOAC Mall Holdings LLC v. Transform Holdco LLC,

598 U.S. 288, 295 (2023), or, stated obversely, a case

is moot “only when it is impossible for court to grant

any effectual relief whatever to the prevailing party.”

Chafin v. Chafin, 568 U.S. 165, 172 (2013). Moreover,

it is up to the defendant to prove no effective remedy

is available, not the plaintiff’s burden to disprove it.

See W. Va. v. EPA, 142 S. Ct. 2587, 2607 (2022).

DoD tries to weave its way between these

barriers to a proper finding of mootness by asserting

that a court cannot provide any more relief that DoD

has already provided by (a) rescinding the order that

2 Pub. L. 112–239, div. A, title V, §533, Jan. 2, 2013, 126

Stat. 1727, as amended by Pub. L. 113–66, div. A, title V,

§532(a), Dec. 26, 2013, 127 Stat. 759.

4

all military personnel receive Covid-19 shots and (b)

removing any negative material from the records of

those who refused to do so for religious reasons. DoD

protested that Plaintiff Chaplains were asking the

courts to decide what promotions and training and

other advantages the Chaplains would have received

but for DoD’s allegedly improper actions and to order

the military branch to implement the court’s

determinations. That is not what Plaintiff Chaplains

seek.

What Plaintiff Chaplains seek, post Congress’s

action and DoD’s rescission of its Covid-19 shot

requirement, is for the courts, in recognition that the

Chaplains have suffered adverse consequences due to

the improper actions of DoD, to require the services to

ameliorate the adverse consequences going forward to

the maximum possible degree consistent with

military preparedness. Such relief does not require a

court to promote anyone; it only requires a service to

recognize in future promotion opportunities that the

particular chaplain’s advancement opportunities

have been improperly stunted. Such relief does not

require a court to designate what training a particular

chaplain receives and when he receives it; it only

requires a service to recognize that training

opportunities were withheld previously and any

reasonable actions should be taken to ameliorate that

situation.

Among other

requested the court:

things,

Plaintiff

Chaplains

[To e]njoin any adverse or retaliatory action

against the Plaintiffs as a result of, arising

from, or in conjunction with the Plaintiffs’

5

[religious accommodation] requests or denials,

or for pursuing this action, or any other action

for relief from Defendants’ constitutional,

statutory, or regulatory violations; [and]

To order Defendants to take necessary actions

to repair and restore Plaintiffs’ careers and

personnel records, and to provide effective

guarantees against future retaliation for the

exercise of their protected rights through the

Services’ assignment, promotion, and schooling

systems . . . .

(Complaint at 123-24.) This relief is still very much

available. It is the type of relief often given to remedy

past unlawful discrimination. Under Title VII, courts

have discretion to provide back pay and seniority

adjustments to remedy discrimination. See, e.g., Zipes

v. Trans World Airlines, Inc., 455 U.S. 385, 399-400

(1982); Franks v. Bowman Transp. Co., 424 U.S. 747,

764 (1976). Plaintiff Chaplains request, looking

forward, that all reasonable efforts consistent with

military preparedness be taken to remedy the

military’s alleged unlawful action. As this Court has

repeatedly stated, a “court has not merely the power

but the duty to render a decree which will so far as

possible eliminate the discriminatory effects of the

past as well as bar like discrimination in the future.”

Green v. Cnty. Sch. Bd. of New Kent Cnty., 391 U.S.

430, 438 (1968) (quoting La. v. United States, 380 U.S.

145, 154 (1965)). And under the Religious Freedom

Restoration Act of 1993, under which Plaintiff

Chaplains also bring suit, a “person whose religious

exercise has been burdened in violation of this section

may . . . obtain appropriate [judicial] relief . . . .” 42

U.S.C. § 2000bb-1(c). As this Court has held and as

6

the Chaplains explain in their petition, monetary

relief is also available to them for DoD’s violations of

RFRA. See Uzuegbunam v. Preczewski, 141 S. Ct. 792

(2021).

Nor is the type of forward-looking relief

Plaintiff Chaplains request foreclosed by the fact that

the defendant is the military. Relief can be tailored to

assure that military preparedness is not jeopardized

and that the military, not the court, makes the

appropriate

determinations

on

advancement,

assignment, and training. Chaplains, while critically

important to the troops, are not front-line fighters,

and so the risk to military preparedness is much less

than in the normal situation. Obviously, this Court

may enjoin any future retaliatory actions against the

Plaintiff Chaplains and require all actions consistent

with military preparedness to be taken to ameliorate

past unlawful action. That has not already been done

with the eraser on a pencil by DoD, as it claims.

II. DoD’s Recent Treatment of the Religious

Rights of Its Chaplains Demonstrates That

the Requested Relief Is Not Moot, But

Needed

DoD in its motion to dismiss the complaint as

moot basically said, “Trust us! We’ll make it all right.”

The Fourth Circuit said, “We do trust you!,” but it was

wrong to do so in this instance, both in general and for

two particular reasons.

First, it is not sufficient to moot a case simply

for a defendant to say it will remedy the wrongs about

which the plaintiff complains, without more. And

when it comes to how DoD will ameliorate the harms

7

it has already inflicted on the military careers of the

Plaintiff Chaplains, DoD promised only the erasure of

negative comments in their existing records. DoD

neither gave general assurances nor suggested

specific, affirmative steps it would take to help the

Chaplains “catch up” for the deficiencies in training

and advancement the Chaplains have amply alleged.

This falls far short of carrying DoD’s burden to prove

that no judicial relief is available. See W. Va., 142 S.

Ct. at 2607; Chafin, 568 U.S. at 172 (must be

“impossible” for court to provide effective relief).

Second, chaplains fit a special role in the

military, with their religious exercise both needed for

the war fighters and afforded special protection by

Congress. As to their role, it is “‘unique,’ involving

simultaneous service as clergy or a ‘professional

representative[]’

of

a

particular

religious

denomination and as a commissioned . . . officer.” In

re England, 375 F.3d. 1169, 1171 (D.C. Cir. 2004)

(Roberts, J.) (quoting OPNAVINST 1730.1, Chaplains

Manual 1-2-1-3 (Dep't of the Navy Oct. 3, 1973)). They

assist military personnel to practice their chosen

faiths when, otherwise, it might not be possible for

them to do so due to military needs and stationing.

Id.; Katcoff v. Marsh, 755 F.2d 233 (2d Cir. 1985); see

generally P. Thompson, The United States Army

Chaplaincy (1978).

Despite their special status and obvious need to

practice their chosen faith conscientiously and freely,

the military services were not always sympathetic to

religious concerns when they were inconvenient or

inconsistent with normal operations. For that reason,

Congress in the FY 2013 National Defense

Appropriations Act enacted § 533(b), “Protection of

8

Chaplain Decisions Relating to Conscience, Moral

Principles, or Religious Beliefs,” which provides as

follows (as amended by the FY 2014 NDAA):

No member of the Armed Forces may—

(1) require a chaplain to perform any rite,

ritual, or ceremony that is contrary to the

conscience, moral principles, or religious beliefs

of the chaplain; or

(2) discriminate or take any adverse personnel

action against a chaplain, including denial of

promotion, schooling, training, or assignment,

on the basis of the refusal by the chaplain to

comply with a requirement prohibited by

paragraph (1).

Pub. L. 112–239, div. A, title V, §533(b), Jan. 2, 2013,

126 Stat. 1727, as amended by Pub. L. 113–66, div. A,

title V, §532(a), Dec. 26, 2013, 127 Stat. 759. Thus,

Congress has shown a special concern for situations

such as those involved in this case in which the

Plaintiff Chaplains’ “promotion, schooling, training,

[and] assignment” has been negatively influenced by

their exercise of conscience.

Third, the order from which DoD refused to

grant the Chaplains an exemption involved Covid-19

treatment that violated the consciences of these

Chaplains. The perceived threat of Covid-19 was used

repeatedly by governments to violate the free exercise

rights of individuals. This Court had to step in time

after time. See, e.g., Tandon v. Newsom, 141 S. Ct.

1294, 1296 (2021); Gateway City Church v. Newsom,

141 S. Ct. 1460 (2021); S. Bay United Pentecostal

9

Church v. Newsom, 141 S. Ct. 716 (2021); Roman

Cath. Dio. of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020).

As Justice Gorsuch stated in South Bay, “It has never

been enough for the State to insist on deference or

demand that individual rights give way to collective

interests. . . . Even in times of crisis—perhaps

especially in times of crisis—we have a duty to hold

governments to the Constitution.” 142 S. Ct. at 718

(Gorsuch, J., statement).

DoD damaged Plaintiff Chaplains by its “damn

the torpedoes, religious beliefs do not excuse getting a

Covid-19 shot” position. That damage cannot be fully

remedied just by rescission of the order and taking out

negative comments from the Chaplains’ personnel

files. It requires affirmative actions—actions that can

easily be taken without jeopardizing military

preparedness—to

ameliorate

the

negative

consequences in “promotion, schooling, training, [and]

assignment.” FY 2013 NDAA § 533(b). Without

judicial decrees, that will never happen.

CONCLUSION

The action of Plaintiff Chaplains is not wholly

moot, and they present an issue of great importance

that requires resolution. This Court should reverse

the Fourth Circuit and order full consideration of

their appeal.

Respectfully submitted on this

2nd day of February 2024,

/s/ Frederick W. Claybrook, Jr.

Frederick W. Claybrook, Jr.

10

(Counsel of Record)

Claybrook LLC

655 15th St., NW, Ste. 425

Washington, D.C. 20005

(202) 250-3833

rick@claybrooklaw.com

Counsel for Amici Curiae