Defense installations and the National Guard

Summary

The Department of Defense governs a domestic estate of more than 230 installations, employs about 2.9 million military and civilian personnel, buys from a defense industrial base of tens of thousands of prime and subcontractors, and runs a health system of hundreds of military treatment facilities. Every one of those functions was placed under written orders from March 2020 through September 2021, and the orders limited commerce, travel and group meetings in terms. 2020 Q2 (with the March 13-31 run-up): the Secretary of Defense stopped movement to, from and through CDC Level 3 countries effective March 13, 2020 for 60 days (Ex. AGY-DEFENSE-GUARD-035) and the Deputy Secretary stopped all domestic official travel effective March 16, 2020 (Ex. 036); the April 20, 2020 reissuance made the stop-movement worldwide through June 30, 2020 (Ex. 043). Installation commanders raised Health Protection Condition (HPCON) Charlie, closed gates, cancelled gatherings, closed gyms, theaters, barber shops, bowling alleys and child-development centers to all but mission-essential families, and confined civilian workforces to minimum mission-essential manning (Exs. 126, 127, 137, 141, 097, 098, 103). The Secretary ordered cloth face coverings for every person on DoD property, including contractors and visitors, effective April 5, 2020 (Ex. 042); the Assistant Secretary (Health Affairs) postponed all elective surgical, invasive and dental procedures in every military treatment facility effective March 31, 2020 for 60 days (Ex. 027). The Under Secretary (A&S) designated the DIB workforce essential on March 20, 2020, telling contractors and their subcontractors to maintain normal schedules while State stay-home orders governed everyone else (Ex. 037), raised progress payments to 90 and 95 percent (Ex. 038), and implemented CARES Act section 3610 paid-leave reimbursement for contractors kept in a ready state by facility closures and quarantines (Ex. 061). The President directed the Secretary of Defense to request National Guard duty under 32 U.S.C. 502(f) State by State, beginning with California, New York and Washington on March 22, 2020 and reaching every State but Arkansas, Idaho, Minnesota and Wyoming by May 20, 2020, funded 100 percent by FEMA (Exs. 001-011); Guard members were ordered to duty and away from their civilian employers. 2020 Q3: the stop-movement gave way on May 22, 2020 to a conditions-based regime under which travel to or from an installation remained restricted until the installation itself met gating criteria (Ex. 047); the Department's own weekly status update recorded that travel restrictions had been lifted at only 70 of 231 installations on June 29, 2020 (Ex. 050) and 104 of 231 on August 31, 2020 (Ex. 117); Fort Bragg, Fort Hood, Fort Bliss, Naval Base San Diego, Norfolk Naval Shipyard, Naval Station Norfolk, Eglin AFB, Joint Base San Antonio and Wright-Patterson AFB were all still restricted on both dates. The 100 percent Guard cost share was extended to August 21, 2020 and then converted to 75 percent (100 percent for Texas, Florida, Arizona, California, Connecticut and Louisiana) through December 31, 2020 (Exs. 012-018). 2020 Q4: the winter surge reversed the reopening; lifted installations fell from 153 of 231 on November 2 to 91 of 231 on December 28, 2020 (Exs. 051, 118); the Pentagon Reservation moved to HPCON Bravo-plus on November 26, 2020 with a 40 percent occupancy ceiling, gatherings under 25 and take-out-only food courts (Ex. 052); DoD telework flexibilities were extended through June 30, 2021 (Ex. 053); the DoD vaccination program began on December 7-14, 2020 as a voluntary program under emergency use authorization (Exs. 113, 120, 031, 033). 2021 Q1: the Secretary of Defense ordered masks on every military installation and for every person performing official duties away from home effective February 4, 2021 (Ex. 112); the January 21, 2021 presidential memorandum directed the Secretary to request 502(f) duty from all State and territorial governors at 100 percent federal cost through September 30, 2021 (Ex. 021); the March 15, 2021 reissuance kept installation-by-installation travel restrictions in force until further notice (Ex. 057); 89 of 231 installations were unrestricted on January 4, 2021 and 138 of 230 on March 29, 2021 (Exs. 054, 119). 2021 Q2: masks were relaxed for the fully vaccinated on May 13, 2021 (Ex. 075) but continued for everyone else and in all health-care settings (Ex. 077); 156 of 230 installations were unrestricted on April 26 and 214 of 230 on June 28, 2021 (Exs. 060, 078), which is to say that sixteen installations, including Fort Belvoir, remained travel-restricted on the last day of the quarter. 2021 Q3: on July 28, 2021 the Deputy Secretary reimposed indoor masks for all service members, federal employees, onsite contractor employees and visitors regardless of vaccination status in areas of substantial or high transmission (Ex. 081); the Pentagon Reservation went to HPCON Bravo on August 2 (occupancy under 50 percent) and Bravo-plus on September 9, 2021 (occupancy under 40 percent) (Exs. 083, 115); the Secretary announced on August 9 and ordered on August 24, 2021 mandatory vaccination of every service member including the National Guard (Exs. 085, 086); Force Health Protection Supplement 23 of September 8, 2021 required unvaccinated civilian employees and contractor personnel to attest and to test weekly on pain of being denied access to DoD facilities (Ex. 114); the weekly status update recorded travel restrictions reinstated at Eglin AFB, Norfolk Naval Shipyard, Naval Station Norfolk, Wright-Patterson AFB, Corpus Christi NAS and Letterkenny Army Depot by September 27, 2021, with 54 of 230 installations restricted (Exs. 087, 116); and the President extended the 100 percent Guard cost share through December 31, 2021 on August 17, 2021 (Ex. 023). Joint Base Lewis-McChord's own orders trace the same arc: minimum mission-essential manning and closed facilities in March-April 2020 (Exs. 126, 127), indoor face coverings in all on-post buildings and gatherings limited by the I Corps General Order in November-December 2020 (Exs. 129, 130), mask wear at all indoor and outdoor gatherings on April 1, 2021 (Ex. 131), and masks for all personnel in all indoor facilities from July 30, 2021 with restricted in-person meetings and telework for high-risk personnel on August 18, 2021 (Exs. 133, 134). The employers reached are the defense contractors and subcontractors whose employees needed installation access, the base-adjacent hotels, restaurants, retailers, child-care providers, moving companies and landlords whose customers were confined to post or stopped from moving, the shipbuilders, ship repairers and depot vendors whose work sites sat behind restricted gates, the TRICARE network providers whose referrals stopped when elective care stopped, and every civilian employer whose National Guard employees were ordered to duty.