Memorandum In Support Of
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A memorandum in support of a motion for class certification in U.S. Navy SEALs 1-3, et al. v. Lloyd J. Austin, III, et al., Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division, filed January 25, 2022 as Document 90. The plaintiffs ask the court to certify under Rule 23(b)(2) a Navy Class of service members subject to the Navy's COVID-19 Vaccine Mandate who have submitted Religious Accommodation requests, plus a Naval Special Warfare/Operations Subclass and a Navy SEALs Subclass. The memorandum argues numerosity, citing the defendants' statement that approximately 3,259 Navy personnel had submitted such requests as of December 9, 2021, and lists common questions under the First Amendment and the Religious Freedom Restoration Act. It also asks that plaintiffs' counsel be appointed class counsel under Rule 23(g).
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Case 4:21-cv-01236-O Document 90 Filed 01/25/22 Page 1 of 20 PageID 2762
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NAVY SEALs 1-3, on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,
Plaintiffs, Case No. 4:21-cv-01236-O
v.
LLOYD J. AUSTIN, III, in his official
capacity as United States Secretary of Defense;
UNITED STATES DEPARTMENT OF
DEFENSE; CARLOS DEL TORO, in his
official capacity as United States Secretary of
the Navy,
Defendants.
MEMORANDUM IN SUPPORT OF
MOTION FOR CLASS CERTIFICATION
Case 4:21-cv-01236-O Document 90 Filed 01/25/22 Page 2 of 20 PageID 2763
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
LOCAL RULE 23.2 REQUIREMENTS ........................................................................................ 1
INTRODUCTION .......................................................................................................................... 2
ARGUMENT .................................................................................................................................. 2
I. The Proposed Class and Subclasses Satisfy the Requirements of Rule 23(a). ......................... 3
A. Numerosity: The proposed Class and Subclasses are so numerous that joinder of
all members is impractical. ................................................................................................. 3
B. Commonality: There are questions of fact and law common to the Class and
Subclass members. .............................................................................................................. 4
1. Navy Class: Common Questions .................................................................................. 5
2. Naval Special Warfare/Operations Subclass: Common Questions .............................. 6
3. Navy SEALs Subclass: Common Questions ................................................................ 8
4. The Class and Subclasses satisfy the commonality requirement. ................................. 9
C. Typicality: The Class Members’ claims are typical of the claims of all Class
Members. .......................................................................................................................... 10
D. Adequacy of Representation: The Named Plaintiffs will fairly and adequately
represent and protect the interests of the Class and the Subclasses. ................................. 11
1. Adequacy of the Named Plaintiffs and the lack of any conflict ................................. 12
2. Zeal and competency of Plaintiffs’ Counsel ............................................................... 13
II. The Class and the Subclasses Satisfy the Requirements of Rule 23(b)(2). ............................ 13
III. Plaintiffs’ Counsel Will Fairly and Adequately Represent the Interests of the Class and
Subclasses and Should Be Appointed Class Counsel. ............................................................ 15
CONCLUSION ............................................................................................................................. 15
CERTIFICATE OF SERVICE ..................................................................................................... 17
ii
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TABLE OF AUTHORITIES
Cases
Abboud v. Agentra, LLC,
3:19-CV-00120-X, 2020 WL 5526557 (N.D. Tex. Sept. 14, 2020) ........................................... 3
Ahmad v. Old Republic Nat’l Title Ins. Co.,
690 F.3d 698 (5th Cir. 2012) ...................................................................................................... 2
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997) .................................................................................................................. 12
Bear Creek Bible Church v. EEOC,
4:18-CV-00824-O, 2021 WL 5449038 (N.D. Tex. Nov. 22, 2021) ........................................... 3
Feder v. Elec. Data Sys. Corp.,
429 F.3d 125 (5th Cir. 2005) .................................................................................................... 12
Gen. Tele. Co. of Sw. v. Falcon,
347 U.S. 147 (1982) ...................................................................................................... 10, 11, 12
In re Deepwater Horizon,
739 F.3d 790 (5th Cir. 2014) ................................................................................................ 9, 10
James v. City of Dallas,
254 F.3d 551 (5th Cir. 2001) ................................................................................................ 9, 11
Mullen v. Treasure Chest Casino, LLC,
186 F.3d 620 (5th Cir. 1999) ................................................................................................ 3, 11
Slade v. Progressive Sec. Ins.,
856 F.3d 408 (5th Cir. 2017) .............................................................................................. 12, 13
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) .......................................................................................... 4, 5, 9, 10, 13, 14
Rules
Fed. R. Civ. P. 23 .......................................................................................................... 2, 13, 14, 15
L.R. 23.2 ............................................................................................................................... 2, 3, 13
iii
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LOCAL RULE 23.2 REQUIREMENTS
Rule 23.2(a): The suit is properly maintainable under Fed. R. Civ. P. 23(a) and 23(b)(2). See Parts
I and II infra.
Rule 23.2(b)(1): See Part I.A infra.
Rule 23.2(b)(2): See Introduction, p. 2 infra.
Rule 23.2(b)(3): See Part I.B.4 n.1, infra.
Rule 23.2(b)(4): See Part I.B.1-3, infra.
Rule 23.2(b)(5): Not applicable because the class is maintainable under Fed. R. Civ. P. 23(b)(2).
Rule 23.2(c): See Part I.D. infra.
Rule 23.2(d): Jurisdictional amount is not an issue because the Court’s jurisdiction is premised
on a federal question. See 28 U.S.C. § 1331.
Rule 23.2(e): Notice is not required under Fed. R. Civ. P. 23(b)(2) and Plaintiffs believe it is
unnecessary in this case so no notice cost is anticipated.
Rule 23.2(f): At this time, Plaintiffs anticipate that they may need limited discovery as to the
approximate number of members of the subclasses, which is clearly within the
knowledge or possession of the Defendants. Plaintiffs believe they can get this
information expeditiously from Defendants through interrogatories or through
subpoenaing DoD witnesses to a class certification hearing.
Rule 23.2(g): See Part I.D.2; Part III; Declaration of Andrew Stephens.
Case 4:21-cv-01236-O Document 90 Filed 01/25/22 Page 5 of 20 PageID 2766
INTRODUCTION
Plaintiffs United States Navy SEALs 1-3 (“SEALs 1-3”) and United States Navy Explosive
Ordnance Disposal Technician 1 (“EOD 1”) (“Named Plaintiffs”), on behalf of themselves and all
others similarly situated, respectfully request that the Court enter an order certifying the following
class and subclasses under Rule 23(b)(2) of the Federal Rules of Civil Procedure:
(a) a class of all members of the United States Navy who are subject to the Navy’s COVID-
19 Vaccine Mandate and who have submitted a Religious Accommodation request
concerning the Navy’s COVID-19 Vaccine Mandate (“Navy Class”);
(b) a subclass of all members of the Navy Class who are now or will be assigned to Naval
Special Warfare or Naval Special Operations, who are subject to the Navy’s COVID-
19 Vaccine Mandate, and who have submitted a Religious Accommodation request
concerning the Navy’s COVID-19 Vaccine Mandate (“Naval Special
Warfare/Operations Subclass”);
(c) a subclass of all members of the Navy Class who are now or will be United States Navy
SEALs, who are subject to the Navy’s COVID-19 Vaccine Mandate, and who have
submitted a Religious Accommodation request concerning the Navy’s COVID-19
Vaccine Mandate (“Navy SEALs Subclass”).
Plaintiffs further request that the Court enter an order appointing Plaintiffs’ counsel as class
counsel under Rule 23(g) of the Federal Rules of Civil Procedure.
ARGUMENT
A party that moves for class certification must satisfy each requirement of Rule 23(a):
“numerosity, commonality of issues, typicality of the class representatives’ claims in relation to
the class, and adequacy of the class representatives and their counsel to represent the class.” Ahmad
v. Old Republic Nat’l Title Ins. Co., 690 F.3d 698, 702 (5th Cir. 2012) (citing Fed. R. Civ. P.
23(a)); see L.R. 23.2(a). “Plaintiffs also must satisfy at least one of the requirements of Rule
23(b).” Ahmad, 690 F.3d at 702. The proposed class and subclasses meet each of these
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requirements. The Navy Class, the Naval Special Warfare/Operations Subclass, and the Navy
SEALs Subclass meet each of the four requirements of Rule 23(a) as well as Rule 23(b)(2).
I. The Proposed Class and Subclasses Satisfy the Requirements of Rule 23(a).
A. Numerosity: The proposed Class and Subclasses are so numerous that joinder of
all members is impractical.
The number of Navy service members who are subject to the Navy’s COVID-19 Vaccine
Mandate and who have submitted a Religious Accommodation request concerning the Navy’s
COVID-19 Vaccine Mandate easily meets the numerosity requirement. “There is not a threshold
number that makes a class so numerous that joinder would be impossible. The Fifth Circuit has
implied, however, that a class of over forty people will suffice.” Abboud v. Agentra, LLC, 3:19-
CV-00120-X, 2020 WL 5526557, at *3 (N.D. Tex. Sept. 14, 2020) (citing Mullen v. Treasure
Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)). And “[c]ourts have regularly certified
classes with far fewer members” than asserted here. Bear Creek Bible Church v. EEOC, 4:18-CV-
00824-O, 2021 WL 5449038, at *17 (N.D. Tex. Nov. 22, 2021).
The Named Plaintiffs seek to represent a class of United States Navy service members who
are subject to the Navy’s COVID-19 Vaccine Mandate and who have submitted Religious
Accommodation requests concerning the Navy’s COVID-19 Vaccine Mandate. Likewise, all of
the Named Plaintiffs have submitted Religious Accommodation requests concerning the Navy’s
COVID-19 Vaccine Mandate. The local rules of this Court require Plaintiffs to provide the
“approximate number of class members.” L.R. 23.2(b)(1). It is difficult to calculate the exact
number of members of the Navy who have submitted a Religious Accommodation request
concerning the Navy’s COVID-19 Vaccine Mandate because that information is in the possession
of the Defendants. But based on Defendants’ statements in this lawsuit, one can confidently
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estimate that the Navy Class members number in the thousands. In their opposition to the
Plaintiffs’ Motion for Preliminary Injunction, Defendants asserted that as of December 9, 2021,
approximately 3,259 Navy personnel had submitted Religious Accommodation requests. The
Navy has granted zero Religious Accommodation requests, and the Chief of Naval Operations, the
second-in-command of the Department of the Navy, has decided zero appeals. Thus, while the
precise number of class members is not known at this time, the number of proposed class members
is clearly sufficient to satisfy numerosity, as the joinder of thousands of individuals to this lawsuit
is impractical.
Similarly, it is difficult to calculate the exact number of members of Naval Special
Warfare/Operations units and United States Navy SEALs who have submitted a Religious
Accommodation request concerning the Navy’s COVID-19 Vaccine Mandate. Based on
Defendants’ statements in this lawsuit, Plaintiffs reasonably believe that the Naval Special
Warfare/Operations Subclass members and the Navy SEALs Subclass members number over one
hundred, which also clearly satisfies the numerosity requirement. A more exact calculation for
either subclass is unavailable at this time.
B. Commonality: There are questions of fact and law common to the Class and
Subclass members.
The Named Plaintiffs seek to litigate several questions that are common to all class
members and meet the commonality requirement. To satisfy the requirement of commonality, the
“claims must depend upon a common contention” that is “of such a nature it is capable of classwide
resolution—which means that the determination of its truth or falsity will resolve an issue central
to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350 (2011). “What matters to class certification is not the raising of common questions—
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even in droves—but rather, the capacity of a class-wide proceeding to generate common answers
apt to drive the resolution of the litigation.” Id. at 350 (first emphasis added). There are numerous
common questions here that will yield common answers that will resolve this litigation.
1. Navy Class: Common Questions
The questions of fact that are common to the Navy Class include:
(a) Whether the Navy has a policy or practice of denying all Religious Accommodation
requests concerning the COVID-19 Vaccine Mandate;
(b) Whether the Navy has a policy or practice of not conducting an individualized
assessment of all Religious Accommodation request concerning the COVID-19
Vaccine Mandate;
(c) Whether the Navy has a policy or practice of taking adverse action against
servicemembers who submit Religious Accommodation requests concerning the
COVID-19 Vaccine Mandate; and
(d) Whether the Navy has a policy or practice of coercing compliance with the COVID-19
Vaccine Mandate by threatening or taking adverse action against servicemembers who
submit Religious Accommodation requests concerning the COVID-19 Vaccine
Mandate.
The questions of law that are common to the Navy Class include:
(a) Whether the Navy’s policy or practice of denying all Religious Accommodation
requests concerning the Navy’s COVID-19 Vaccine Mandate means that members of
the Navy Class have been and are being deprived of their right to the Free Exercise of
Religion under the First Amendment to the United States Constitution;
(b) Whether the Navy’s policy or practice of denying all Religious Accommodation
requests concerning the Navy’s COVID-19 Vaccine Mandate means that members of
the Navy Class have been and are being deprived of their rights under the Religious
Freedom Restoration Act;
(c) Whether the Navy’s policy or practice of not conducting an individualized assessment
of all Religious Accommodation requests concerning the Navy’s COVID-19 Vaccine
Mandate means that members of the Navy Class have been and are being deprived of
their right to the Free Exercise of Religion under the First Amendment to the United
States Constitution;
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(d) Whether the Navy’s policy or practice of not conducting an individualized assessment
of all Religious Accommodation request concerning the Navy’s COVID-19 Vaccine
Mandate means that members of the Navy Class have been and are being deprived of
their rights under the Religious Freedom Restoration Act;
(e) Whether the Navy’s policy or practice of taking adverse action against servicemembers
who submit Religious Accommodation requests concerning the COVID-19 Vaccine
Mandate means that members of the Navy Class have been and are being deprived of
the Free Exercise of Religion under the First Amendment to the United States
Constitution;
(f) Whether the Navy’s policy or practice of taking adverse action against servicemembers
who submit Religious Accommodation requests concerning the COVID-19 Vaccine
Mandate means that members of the Navy Class have been and are being deprived of
their rights under the Religious Freedom Restoration Act;
(g) Whether the Navy’s policy or practice of coercing compliance with the COVID-19
Vaccine Mandate by threatening or taking adverse action against servicemembers who
submit Religious Accommodation requests concerning the COVID-19 Vaccine
Mandate means that members of the Navy Class have been and are being deprived of
the Free Exercise of Religion under the First Amendment to the United States
Constitution; and
(h) Whether the Navy’s policy or practice of coercing compliance with the COVID-19
Vaccine Mandate by threatening or taking adverse action against servicemembers who
submit Religious Accommodation requests concerning the COVID-19 Vaccine
Mandate means that members of the Navy Class have been and are being deprived of
their rights under the Religious Freedom Restoration Act.
2. Naval Special Warfare/Operations Subclass: Common Questions
The questions of fact that are common to the Naval Special Warfare/Operations Subclass
include:
(a) Whether the Navy has a policy or practice of disqualifying from special operations duty
unvaccinated members of Naval Special Warfare and Naval Special Operations who
submit a Religious Accommodation request concerning the Navy’s COVID-19
Vaccine Mandate, but not disqualifying from special operations duty unvaccinated
members of Naval Special Warfare and Naval Special Operations who submit a request
for a medical accommodation or medical exemption concerning the Navy’s COVID-
19 Vaccine Mandate; and
(b) Whether the Navy has a policy or practice of disqualifying from special operations duty
unvaccinated members of Naval Special Warfare and Naval Special Operations who
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receive a Religious Accommodation concerning the Navy’s COVID-19 Vaccine
Mandate, but not disqualifying from special operations duty unvaccinated members of
Naval Special Warfare and Naval Special Operations who receive a medical
accommodation or medical exemption concerning the Navy’s COVID-19 Vaccine
Mandate.
The questions of law that are common to the Navy SEALs Subclass include:
(a) Whether the Navy’s policy or practice requiring unvaccinated members of Naval
Special Warfare and Naval Special Operations to be disqualified from special
operations duty if the member submits a Religious Accommodation request concerning
the Navy’s COVID-19 Vaccine Mandate, but not if a member submits a request for a
medical exemption concerning the Navy’s COVID-19 Vaccine Mandate, means that
members of the Naval Special Warfare/Operations Subclass have been and are being
deprived of their right to the Free Exercise of Religion under the First Amendment to
the United States Constitution;
(b) Whether the Navy’s policy or practice of requiring unvaccinated members of Naval
Special Warfare and Naval Special Operations to be disqualified from special
operations duty if the member submits a Religious Accommodation request concerning
the Navy’s COVID-19 Vaccine Mandate, but not if a member submits a request for a
medical exemption concerning the Navy’s COVID-19 Vaccine Mandate, means that
members of the Naval Special Warfare/Operations Subclass have been and are being
deprived of their rights under the Religious Freedom Restoration Act;
(c) Whether the Navy’s policy or practice of requiring unvaccinated members of Naval
Special Warfare and Naval Special Operations to be disqualified from special
operations duty if the member receives a Religious Accommodation concerning the
Navy’s COVID-19 Vaccine Mandate, but not if an unvaccinated member receives a
medical accommodation or exemption concerning the Navy’s COVID-19 Vaccine
Mandate, means that members of the Naval Special Warfare/Operations Subclass have
been and are being deprived of their right to the Free Exercise of Religion under the
First Amendment to the United States Constitution; and
(d) Whether the Navy’s policy or practice of requiring unvaccinated members of Naval
Special Warfare and Naval Special Operations to be disqualified from special
operations duty if the member receives a Religious Accommodation concerning the
Navy’s COVID-19 Vaccine Mandate, but not if an unvaccinated member receives a
medical accommodation or exemption concerning the Navy’s COVID-19 Vaccine
Mandate, means that members of the Naval Special Warfare/Operations Subclass have
been and are being deprived of their rights under the Religious Freedom Restoration
Act.
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3. Navy SEALs Subclass: Common Questions
The questions of fact that are common to the Navy SEALs Subclass include:
(a) Whether the Navy has a policy or practice of medically disqualifying or making non-
deployable unvaccinated members of the United States Navy SEALs who submit a
Religious Accommodation request concerning the Navy’s COVID-19 Vaccine
Mandate; and
(b) Whether the Navy has a policy or practice of medically disqualifying or making non-
deployable unvaccinated members of the United States Navy SEALs who receive a
Religious Accommodation concerning the Navy’s COVID-19 Vaccine Mandate.
The questions of law that are common to the Navy SEALs Subclass include:
(a) Whether the Navy’s policy or practice of medically disqualifying or making non-
deployable unvaccinated members of the United States Navy SEALs who submit a
Religious Accommodation request concerning the Navy’s COVID-19 Vaccine
Mandate means that members of the Navy SEAL Subclass have been and are being
deprived of their right to the Free Exercise of Religion under the First Amendment to
the United States Constitution;
(b) Whether the Navy’s policy or practice of medically disqualifying or making non-
deployable unvaccinated members of the United States Navy SEALs who submit a
Religious Accommodation request concerning the Navy’s COVID-19 Vaccine
Mandate means that members of the Navy SEAL Subclass have been and are being
deprived of their rights under the Religious Freedom Restoration Act;
(c) Whether the Navy’s policy or practice of medically disqualifying or making non-
deployable unvaccinated members of the United States Navy SEALs who receive a
Religious Accommodation concerning the Navy’s COVID-19 Vaccine Mandate means
that members of the Navy SEAL Subclass have been and are being deprived of their
right to the Free Exercise of Religion under the First Amendment to the United States
Constitution; and
(d) Whether the Navy’s policy or practice of medically disqualifying or making non-
deployable unvaccinated members of the United States Navy SEALs who receive a
Religious Accommodation concerning the Navy’s COVID-19 Vaccine Mandate means
that members of the Navy SEAL Subclass have been and are being deprived of their
right to the Free Exercise of Religion under the Religious Freedom Restoration Act.
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4. The Class and Subclasses satisfy the commonality requirement.
The questions set forth above will resolve issues that are “central to the validity of each
class member’s claims in one stroke” because the questions address whether Defendants’ policies
and practices cause the same constitutional and statutory violations of the class member’s rights.
Wal-Mart, 564 U.S. at 350. The claims are common among all class members because the injury
sustained—Defendants’ denial of all class members’ Religious Accommodation requests—are
categorically identical. In addition, while the adverse actions experienced by class members
because of their Religious Accommodation requests may vary for each individual as to type or
effect, the injuries all arise from the same unconstitutional policies and practices. “[T]he legal
requirement that class members have all “suffered the same injury” can be satisfied by an instance
of the defendant's injurious conduct, even when the resulting injurious effects—the damages—are
diverse.” In re Deepwater Horizon, 739 F.3d 790, 810–11 (5th Cir. 2014). 1
1 Per L.R. 23.2(b)(3), the common characteristics of the members of the Navy Class are that they are all
members of the United States Navy, they are all subject to the same policies and practices concerning the Navy’s
COVID-19 Vaccine Mandate, they all object to the Navy’s COVID-19 Vaccine Mandate based on their sincerely held
religious beliefs, and they have all submitted Religious Accommodation requests concerning the Navy’s COVID-19
Vaccine Mandate. The distinguishing characteristics of the Navy Class are that some of the class members have
religious beliefs that differ from the religious beliefs of other class members, some class members have different job
duties and assignments from other class members, some class members have been treated adversely while their
Religious Accommodation requests were being adjudicated but others have not, and the class members are
geographically dispersed. These distinguishing characteristics do not preclude resolution of the common questions of
fact and law for the Class. See James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001).
The common characteristics of the members of the Naval Special Warfare/Operations Subclass are that they
are all members of the United States Navy assigned to Naval Special Warfare or Naval Special Operations, they are
all subject to the same policies and practices concerning the Navy’s COVID-19 Vaccine Mandate, they all object to
the Navy’s COVID-19 Vaccine Mandate based on their sincerely held religious beliefs, and they have all submitted
Religious Accommodation requests concerning the Navy’s COVID-19 Vaccine Mandate. The distinguishing
characteristics of the Navy Special Warfare/Operations Subclass are that some of the subclass members have religious
beliefs that differ from the religious beliefs of other subclass members, some subclass members have different job
duties and assignments from other subclass members, some subclass members have been treated adversely while their
Religious Accommodation requests were being adjudicated but others have not, and the subclass members are
geographically dispersed. These distinguishing characteristics do not preclude resolution of the common questions of
fact and law for the Naval Special Warfare/Operations Subclass. Id.
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Commonality may also be demonstrated by showing that the Defendants’ “may also be
demonstrated by showing that the defendants “operated under a general policy of discrimination.”
Wal-Mart, 564 at 353 (quoting Gen. Tele. Co. of Sw. v. Falcon, 347 U.S. 147, 159 n.15 (1982)).
That is exactly what is alleged here. Common questions that apply to all class members involve
whether the Navy inappropriately discriminated against religious belief in compelling vaccination
despite those beliefs, refusing to accommodate those beliefs, and granting exemptions for secular
but not religious reasons. As the Fifth Circuit explained while analyzing Wal-Mart:
[A]n instance of injurious conduct . . . may constitute “the same injury.” This is
confirmed by the example given by the Supreme Court in the above passage
from Wal–Mart, “discriminatory bias on the part of the same supervisor,” which
is itself not a type of damages, but an instance of injurious conduct that violates
Title VII. Later in the same decision, the Supreme Court stated that another type
of injurious conduct on the part of the defendant, “a companywide
discriminatory pay and promotion policy,” would also have satisfied the “same
injury” test for commonality under Rule 23(a)(2).
In re Deepwater Horizon, 739 F.3d at 810. If Defendants have engaged in unlawful discrimination,
as Plaintiffs allege, such discrimination creates “the same injury” for purposes of commonality.
C. Typicality: The Class Members’ claims are typical of the claims of all Class
Members.
“The commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457
U.S. at 158 n.13. “Both serve as guideposts for determining whether under the particular
The common characteristics of the members of the Navy SEALs Subclass are that they are all members of
the United States Navy SEALs, they are all subject to the same policies and practices concerning the Navy’s COVID-
19 Vaccine Mandate, they all object to the Navy’s COVID-19 Vaccine Mandate based on their sincerely held religious
beliefs, and they have all submitted Religious Accommodation requests concerning the Navy’s COVID-19 Vaccine
Mandate. The distinguishing characteristics of the Navy SEALs Subclass are that some of the subclass members have
religious beliefs that differ from the religious beliefs of other subclass members, some subclass members have different
job duties and assignments from other subclass members, some subclass members have been treated adversely while
their Religious Accommodation requests were being adjudicated but others have not, and the subclass members are
geographically dispersed. These distinguishing characteristics do not preclude resolution of the common questions of
fact and law for the Navy SEALs Subclass. Id.
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circumstances maintenance of a class action is economical and whether the named plaintiff's claim
and the class claims are so interrelated that the interests of the class members will be fairly and
adequately protected in their absence.” Id. “[T]he test for typicality is not demanding. It ‘focuses
on the similarity between the named plaintiffs’ legal and remedial theories and the theories of those
whom they purport to represent.’” Mullen, 186 F.3d at 625 (citation omitted). “[T]he critical
inquiry is whether the class representative’s claims have the same essential characteristics of those
of the putative class. If the claims arise from a similar course of conduct and share the same legal
theory, factual differences will not defeat typicality.” James, 254 F.3d at 571 (5th Cir. 2001).
The Named Plaintiffs assert that the Navy’s COVID-19 Vaccine Mandate and the denial
of their Religious Accommodation requests violates their rights under the First Amendment to the
United States Constitution and under the Religious Freedom Restoration Act. This is the precise
claim that the Named Plaintiffs seek to litigate on behalf of the other members of the Navy Class,
the Naval Special Warfare/Operations Subclass, and the Navy SEALs Subclass. The interests of
the Named Plaintiffs are aligned with those of the other class members, and each class member
benefits from a declaratory judgment and injunction that prohibits Defendants from violating their
rights. The Named Plaintiffs thus advance the same legal theories and seek the same remedies as
those of the other class members. This meets the requirements of typicality. Id.
D. Adequacy of Representation: The Named Plaintiffs will fairly and adequately
represent and protect the interests of the Class and the Subclasses.
“Adequacy encompasses three separate but related inquiries: (1) ‘the zeal and competence
of the representative[s’] counsel’; (2) ‘the willing[]ness and ability of the representative[s] to take
an active role in and control the litigation and to protect the interests of absentees’; and (3) the risk
of ‘conflicts of interest between the named plaintiffs and the class they seek to represent.’” Slade
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v. Progressive Sec. Ins., 856 F.3d 408, 412 (5th Cir. 2017) (quoting Feder v. Elec. Data Sys. Corp.,
429 F.3d 125, 130 (5th Cir. 2005)). “[The] requirements [of commonality and typicality] ... tend
to merge with the adequacy-of-representation requirement, although the latter requirement also
raises concerns about the competency of class counsel and conflicts of interest.” Falcon, 457 U.S.
at 158 n.13.
1. Adequacy of the Named Plaintiffs and the lack of any conflict
The Named Plaintiffs will fairly and adequately represent the interests of their fellow class
members, and there are no conflicts of interest between the Named Plaintiffs and the other
members of the Navy Class, the Naval Special Warfare/Operations Subclass, and the Navy SEALs
Subclass. The class members have all submitted Religious Accommodation requests concerning
the Navy’s COVID-19 Vaccine Mandate and every member of the class will benefit from a
declaratory judgment and injunction that prohibits Defendants from violating the class members’
rights under the First Amendment to the United States Constitution and under the Religious
Freedom Restoration Act. There is no conceivable conflict of interest that could arise from the
Named Plaintiffs’ efforts to enforce these rights on a classwide basis. See Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 625 (1997) (“The adequacy inquiry under Rule 23(a)(4) serves to uncover
conflicts of interest between the named parties and the class they seek to represent.”). The First
Amendment and the Religious Freedom Restoration Act protect all members of the Navy from
being compelled to violate their sincerely held religious beliefs, and classwide relief will serve
only to enhance the religious freedom and autonomy of each of the class members.
The Named Plaintiffs’ prosecution of this lawsuit as a class action to vindicate the
constitutional and civil rights that they are oath-bound to protect should give the Court no pause.
The Named Plaintiffs have demonstrated willingness to sacrifice their careers and livelihood to
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Case 4:21-cv-01236-O Document 90 Filed 01/25/22 Page 16 of 20 PageID 2777
stay true to their sincerely held religious beliefs. They have been willing to pursue these claims in
the face of threats, court martial, dishonorable discharge, separation, and other severe sanctions.
The Named Plaintiffs are undoubtedly suitable representatives of the Class and Subclasses.
2. Zeal and competency of Plaintiffs’ Counsel
The “zeal and competence” of class counsel is also not an obstacle. Slade, 856 F.3d at 412.
Plaintiffs’ counsel has extensive experience in complex litigation and has represented the State of
Texas in several class action trials in federal courts. Decl. of Andrew Stephens ¶ 4. Plaintiffs’
counsel also has significant experience in litigating high-profile constitutional cases in both trial
and appellate courts, including the United States Supreme Court. Id. And Plaintiffs’ counsel also
has particular experience in litigating First Amendment and religious liberty cases. Stephens Decl.
¶ 5. Plaintiffs’ counsel has more than sufficient skill and experience to adequately represent the
interest of the class and are unaware of any conflicts that would prevent them from providing
excellent representation. Further, “financial responsibility to fund the action” is being undertaken
by Plaintiffs’ counsel, which includes a nonprofit public-interest organization. See Local Rule
23.2(c). Plaintiffs’ counsel has also identified and thoroughly investigated all claims in this action
and have committed sufficient resources to thoroughly and expeditiously bring this action.
II. The Class and the Subclasses Satisfy the Requirements of Rule 23(b)(2).
In addition to satisfying the threshold requirements of Rule 23(a), the Class and the
Subclasses also satisfy the requirements of Rule 23(b)(2), which requires that “the party opposing
the class has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
The Supreme Court has held that this requirement is satisfied “when a single injunction or
declaratory judgment would provide relief to each member of the class.” Wal-Mart, 564 U.S. at
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Case 4:21-cv-01236-O Document 90 Filed 01/25/22 Page 17 of 20 PageID 2778
360; see also id. at 361-62 (“[T]he relief sought must perforce affect the entire class at once. . . .”).
That is precisely what the Named Plaintiffs are requesting: declaratory and injunctive relief that
protects the religious rights of each class member under the First Amendment and Religious
Freedom Restoration Act.
Plaintiffs allege that Defendants have “acted or refused to act on grounds that apply
generally to the class” because they have (1) mandated the COVID-19 vaccine for all
servicemembers despite the class members’ sincerely held religious beliefs; (2) have policies or
practices of across-the-board denial of all Religious Accommodation requests concerning the
COVID-19 Vaccine Mandate; and (3) have granted accommodations or exemptions concerning
the COVID-19 Vaccine Mandate for secular reasons while denying every Religious
Accommodation request.
Plaintiffs do not seek individualized relief for any class member or for any subset of the
class or subclasses. The Named Plaintiffs are requesting classwide declaratory and injunctive relief
that protects the sincerely held religious beliefs of all members of the Navy who have submitted
Religious Accommodation requests concerning the COVID-19 Vaccine Mandate. This makes
“final injunctive relief or corresponding declaratory relief … appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2); see also Wal-Mart, 564 U.S. at 360 (“Rule 23(b)(2) applies only
when a single injunction or declaratory judgment would provide relief to each member of the
class.”).
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III. Plaintiffs’ Counsel Will Fairly and Adequately Represent the Interests of the
Class and Subclasses and Should Be Appointed Class Counsel.
An order that certifies a class action must appoint class counsel under Rule 23(g). See Fed.
R. Civ. P. 23(c)(1)(B). Rule 23(g) mandates that class counsel “fairly and adequately represent the
interest of the class.” Fed. R. Civ. P. 23(g)(4). In making this determination, courts should consider
four factors: (i) the work counsel has done in identifying or investigating potential claims in the
action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types
of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the
resources that counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A).
In this case, as noted above in Part I.D.2, Plaintiffs’ counsel is qualified to represent the
interests of the class and subclasses fairly and adequately. Plaintiffs’ counsel identified and
thoroughly investigated all claims in this action and have committed sufficient resources to
thoroughly and expeditiously bring this action. In addition, Plaintiffs’ counsel has extensive
experience in litigating class actions and other complex litigation, and as have extensive
experience in litigation involving the First Amendment and Religious Freedom Restoration Act.
Plaintiffs’ counsel therefore satisfy the standard under Rule 23(g) for appointment of class counsel.
CONCLUSION
For the foregoing reasons, this Court should grant the motion and enter an order certifying
the class and each of the subclasses, and appointing Plaintiffs’ counsel as class counsel.
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Case 4:21-cv-01236-O Document 90 Filed 01/25/22 Page 19 of 20 PageID 2780
Respectfully submitted this 25th day of January, 2022.
Kelly J. Shackelford /s/ Andrew B. Stephens
Texas Bar No. 18070950 Heather Gebelin Hacker
Jeffrey C. Mateer Texas Bar No. 24103325
Texas Bar No. 13185320 Andrew B. Stephens
Hiram S. Sasser, III Texas Bar No. 24079396
Texas Bar No. 24039157 HACKER STEPHENS LLP
David J. Hacker 108 Wild Basin Road South, Suite 250
Texas Bar No. 24103323 Austin, Texas 78746
Michael D. Berry Tel.: (512) 399-3022
Texas Bar No. 24085835 heather@hackerstephens.com
Justin Butterfield andrew@hackerstephens.com
Texas Bar No. 24062642
Danielle Runyan * Attorneys for Plaintiffs
New Jersey Bar No. 02723004
Holly M. Randall *
Oklahoma Bar No. 34763
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600
Plano, Texas 75075
Tel: (972) 941-4444
jmateer@firstliberty.org
hsasser@firstliberty.org
dhacker@firstliberty.org
mberry@firstliberty.org
jbutterfield@firstliberty.org
drunyan@firstliberty.org
hrandall@firstliberty.org
Jordan E. Pratt
Florida Bar No. 100958* **
FIRST LIBERTY INSTITUTE
227 Pennsylvania Ave., SE
Washington, DC 20003
Tel: (972) 941-4444
jpratt@firstliberty.org
*Admitted pro hac vice
** Not yet admitted to the D.C. Bar, but
admitted to practice law in Florida. Practicing
law in D.C. pursuant to D.C. Court of Appeals
Rule 49(c)(8) under the supervision of an
attorney admitted to the D.C. Bar.
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CERTIFICATE OF SERVICE
I hereby certify that on January 25, 2022, I electronically filed the foregoing document
through the Court’s ECF system, which automatically notifies counsel of record for each party.
/s/ Andrew B. Stephens
Andrew B. Stephens
Counsel for Plaintiffs
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