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Unvaccinated Navy destroyer commander loses ship, gets shore duty

An aerial view of the U.S. Navy Norfolk Naval Shipyard located on the Elizabeth River, Virginia. (Robert J. Sitar/U.S. Navy)
April 21, 2022

The commander of a Norfolk, Virginia-based U.S. Navy destroyer was recently reassigned to onshore duties after a federal appeals court stayed a lower court decision that had allowed him to stay with the ship despite refusing the mandatory COVID-19 vaccine.

The Daily Press reported Wednesday that the commander, who remains unnamed in legal filings, was reassigned after U.S. Court of Appeals for the 11th Circuit stayed U.S. District Court Judge Steven Merryday’s injunction. The lower court’s injunction had previously prevented the Navy from relieving him of the ship’s command despite being unvaccinated against COVID-19.

The appeals court issued the stay against Merryday’s ruling on March 30.

The Navy destroyer was due to deploy on April 11. In a recent filing before Merryday’s court, the officer’s lawyer notified the judge that he had been informed on April 8 that he had been reassigned to shore duties for 60 days as part of a new Navy policy that prohibits unvaccinated sailors from deploying on Navy ships.

Merryday’s injunction had previously prevented the service from taking any punitive action against the commander, including removing him from his post on the warship and replacing him. During the injunction, the Navy refused to allow the ship to deploy out to sea while the unvaccinated commander remained on the ship, arguing that his vaccination status posed a risk of disease transmission on the ship.

Liberty Counsel, the non-profit group representing the Navy commander, said that even as the service argued that the unvaccinated commander could not deploy, he “was commanding his warfare surface ship far out at sea doing drills, training and testing the ship and its crew for mission readiness.”

Despite winning an injunction from Judge Merryday, the 11th Circuit Court of Appeals stayed the Merryday’s ruling.

Last month, U.S. Supreme Court issued a partial stay on a similar injunction, which had barred the Navy from taking punitive actions against unvaccinated Navy SEALs. The Supreme Court’s partial stay of the injunction prevents the Navy from taking any disciplinary actions against those SEAls for now, but allows the Navy to pull them from planned deployments.

The 11th Appeals Court cited the Supreme Court’s decision in the similar case.

Despite the Supreme Court’s partial stay on an injunction against the Navy, several lawsuits against the military continue to work their way through the lower courts.

Last month, the Navy had to pause separations for more than 4,000 sailors who had remained unvaccinated for religious reasons after a federal judge granted class certification in a class-action lawsuit brought by unvaccinated service members. Judge Reed O’Connor granted class certification for sailors remaining unvaccinated due to religious exemptions and granted an injunction to block the Navy from separating sailors who were previously denied religious exemptions.