Motion (2021-12-17)
- Date
- 2021-12-17
Summary
A motion for leave to file an amicus curiae brief in U.S. Navy SEALs 1-26, et al. v. Joseph R. Biden, Jr., et al., Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, filed December 17, 2021 as Document 56. The proposed amici are nine United States Senators and thirty-eight United States Representatives, each listed by name and state or district, who seek to support the plaintiffs' motion for a preliminary injunction. The motion states that neither side opposes the filing and gives three reasons for leave, including the amici's interest in how the Religious Freedom Restoration Act and the First Amendment are applied. It is addressed to Judge Reed O'Connor and signed by Thomas S. Brandon, Jr. of Whitaker Chalk Swindle & Schwartz PLLC, with certificates of conference and service.
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Case 4:21-cv-01236-O Document 56 Filed 12/17/21 Page 1 of 4 PageID 2245
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
Plaintiffs,
Case No. 4:21-cv-01236-O
v.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States Secretary
of the Navy,
Defendants.
MOTION OF NINE U.S. SENATORS AND THIRTY-EIGHT U.S. REPRESENTATIVES
FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS’
MOTION FOR A PRELIMINARY INJUNCTION
TO THE HONORABLE REED O’CONNOR, UNITED STATES DISTRICT JUDGE:
Proposed amici, nine United States Senators and thirty-eight United States Representatives,
respectfully request leave to file the attached amicus curiae brief in support of plaintiff’s motion
for an expedited preliminary injunction. See Local Rule 7.2(b) (“An amicus brief may not be filed
without leave of the presiding judge.”). Pursuant to Local Rule 7.1(a), proposed amici state that
they contacted counsel for both Plaintiffs and Defendants and neither opposed the filing of the said
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Case 4:21-cv-01236-O Document 56 Filed 12/17/21 Page 2 of 4 PageID 2246
amicus curiae brief. Pursuant to Local Rule 7.2(b), the attached brief specifically sets forth the
interests of the amici in the outcome of the litigation.
In support of this motion, proposed amici state as follows:
1. Proposed amici are United States Senators and Members of the United States House of
Representatives. Amici from the U.S. Senate include: Sen. Ted Cruz (TX); Sen. Rick Scott (FL);
Sen. Mike Lee (UT); Sen. James M. Inhofe (OK); Sen. James Lankford (OK); Sen. Steve Daines
(MT); Sen. Roger F. Wicker (MS); Sen. Mike Braun (IN); and Sen. Roger Marshall (KS). Amici
from the U.S. House of Representative include: Rep. Mike Johnson (LA-04); Rick Allen (GA-
12); Rep. Brian Babin, D.D.S. (TX-36); Rep. Jack Bergman (MI-01); Rep. Andy Biggs (AZ-05);
Rep. Dan Bishop (NC-09); Rep. Lauren Boebert (CO-03); Rep. Mo Brooks (AL-05); Rep. Kat
Cammack (FL-03); Rep. Andrew Clyde (GA-09); Rep. Warren Davidson (OH-08); Rep. Rodney
Davis (IL-13); Rep. Jeff Duncan (SC-03); Rep. Bob Gibbs (OH-07); Rep. Louie Gohmert (TX-
01); Rep. Bob Good (VA-05); Rep. Paul Gosar, D.D.S. (AZ-04); Rep. Michael Guest (MS-03);
Rep. Andy Harris, M.D. (MD-01); Rep. Vicky Hartzler (MO-04); Rep. Jody Hice (GA-10); Rep.
Clay Higgins (LA-03); Rep. Darrell Issa (CA-50); Rep. Ronny L. Jackson (TX-13); Rep. Doug
LaMalfa (CA-01); Rep. Doug Lamborn (CO-05); Rep. Billy Long (MO-07); Rep. Thomas Massie
(KY-04); Rep. Brian Mast (FL-18); Rep. Mary Miller (IL-15); Rep. Gregory F. Murphy, M.D.
(NC-03); Rep. Ralph Norman (SC-05); Rep. Scott Perry (PA-10); Rep. Matthew Rosendale, Sr.
(MT-at-large); Rep. Chip Roy (TX-21); Rep. W. Gregory Steube (FL-17); Rep. Randy Weber
(TX-29); and Rep. Daniel Webster (FL-11).
2. Proposed amici should be granted leave to file the accompanying brief for three reasons.
First, as members of Congress, proposed amici have a strong interest in ensuring laws enacted by
Congress—including, as relevant here, the Religious Freedom Restoration Act (“RFRA”)—are
2
Case 4:21-cv-01236-O Document 56 Filed 12/17/21 Page 3 of 4 PageID 2247
interpreted in a manner that is consistent with their text and history. Second, proposed amici
likewise have a strong interest in ensuring that the First Amendment, which is RFRA’s
constitutional backdrop, is enforced with vigor. Third, members of Congress support and defend
the Constitution of the United States against all enemies, foreign and domestic. This requires
members to ensure that America’s military is in a position to fully and robustly defend our national
security.
3. There is no Federal Rule of Civil Procedure that controls motions for leave to appear as
amicus curiae in federal district court. “The Court has discretion to consider amicus briefing where
the proffered information is timely and useful or otherwise necessary to the administration of
justice.” United States ex rel. Long v. GSD & M Idea City LLC, No. 3:11-CV-1154-O, 2014 WL
11321670, at *4 (N.D. Tex. Aug. 8, 2014) (quoting Does 1–7 v. Round Rock Indep. Sch. Dist., 540
F. Supp. 2d 735, 738 n.2 (W.D. Tex. 2007); see also Club v. Fed. Emergency Mgmt. Agency, No.
CIV.A. H-07-0608, 2007 WL 3472851, at *1 (S.D. Tex. Nov. 14, 2007) (quoting Waste Mgmt. of
Pa., Inc. v. City of York, 162 F.R.D. 34, 36 (M.D. Pa. 1995)); Ryan v. Cmty. Futures Trading
Comm’n, 125 F.3d 1062, 1063 (7th Cir. 1997) (stating amicus briefs should be allowed “when the
amicus has unique information or perspective that can help the court beyond the help that the
lawyers for the parties are able to provide”) (citation omitted).
CONCLUSION
For these reasons, proposed amici respectfully request that they be granted leave to file
the attached amicus curiae brief.
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Case 4:21-cv-01236-O Document 56 Filed 12/17/21 Page 4 of 4 PageID 2248
December 17, 2021 Respectfully submitted,
/s/ Thomas S. Brandon, Jr.
Thomas S. Brandon, Jr.
State Bar Number 02881400
tbrandon@whitakerchalk.com
Of Counsel:
WHITAKER CHALK SWINDLE & SCHWARTZ PLLC
301 Commerce Street, Suite 3500
Fort Worth, Texas 76102
817-878-0532 (office)
817-878-0501 (fax)
ATTORNEYS FOR PROPOSED AMICI, NINE U.S.
SENATORS AND THIRTY-EIGHT U.S.
REPRESENTATIVES
CERTIFICATE OF CONFERENCE
I certify that on December 17, 2021, I conducted a telephone conference concerning
filing the Amicus Curiae Brief which is attached to this Motion in accordance with Local Rule
7.2(b) with one of the attorneys for the Defendants, namely, Courtney D. Enlow. Pursuant to her
request I emailed her and requested to be notified whether the Defendants oppose the filing of
the attached Amicus Brief. Opposing counsel then provided an email that the Defendants are
unopposed to the filing of the said Amicus Brief.
/s/ Thomas S. Brandon, Jr.
Thomas S. Brandon, Jr.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing was served, pursuant to the Federal
Rules of Civil Procedure, on all counsel of record appearing herein via ECF on this the 17th day of
December, 2021 by the filing of this pleading with the Clerk of Court for the U.S. District Court for
the Northern District of Texas using the Court’s ECF system.
/s/ Thomas S. Brandon, Jr.
Thomas S. Brandon, Jr.
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