Before the Court are Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint (ECF
- Date
- 2022-02-07
Summary
An order in U.S. Navy SEALs 1-26, et al. v. Joseph R. Biden, Jr., et al., Civil Action No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division, filed May 7, 2022 as Document 150. It denies the defendants' Motion to Dismiss Plaintiffs' Amended Complaint (ECF No. 106), filed February 7, 2022, which asserted lack of subject matter jurisdiction and improper venue. The court finds the plaintiffs' religious objections to the Navy's COVID-19 vaccination policies ripe for review, citing the fitness of the legal questions and hardship to the plaintiffs. It also finds the defendants waived their venue objection by not raising it during the preliminary injunction stage. The order declares the request to stay discovery moot and directs an updated Joint Report; it is signed by United States District Judge Reed O'Connor.
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Case 4:21-cv-01236-O Document 150 Filed 05/07/22 Page 1 of 7 PageID 5017
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NAVY SEALs 1-26, et al., §
§
Plaintiffs, §
§
v. § Civil Action No. 4:21-cv-01236-O
§
JOSEPH R. BIDEN, JR., et al., §
§
§
Defendants. §
ORDER
Before the Court are Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint (ECF
No. 106), Brief in Support (ECF No. 107), and Appendix (ECF No. 108), filed February 7, 2022.
Plaintiffs filed their Response (ECF No. 131) and Appendix (ECF No. 132) on February 28, 2022,
and Defendants filed their Reply (ECF No. 138) on March 14, 2022. Having considered the
Motion, briefing, and applicable law, the Court finds Defendants’ Motion should be and is hereby
DENIED.
I. BACKGROUND
Because the parties are well-acquainted with the facts of this case, the Court will not repeat
them at length. On January 3, 2022, the Court granted Plaintiffs’ Motion for Preliminary
Injunction, enjoining enforcement of the Navy’s COVID-19 vaccination policies against the thirty-
five Plaintiffs, who object to the vaccine on religious grounds. See ECF No. 66. On January 24,
2022, Defendants filed a Motion to Stay the injunction, asking the Court to allow Defendants to
consider Plaintiffs’ vaccination status when making assignment decisions, including those
involving deployment and training. ECF No. 85. The Court denied Defendants’ Motion on
February 13, 2022. See ECF No. 116. Defendants appealed, and the Fifth Circuit likewise denied
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the Motion to Stay. See U.S. Navy Seals 1–26 v. Biden, 27 F.4th 336, 353 (5th Cir. 2022) (per
curiam). On March 7, Defendants submitted an Application for Partial Stay to the Supreme Court.
See Appl. for Partial Stay, No. 21A477. The Supreme Court granted the partial stay of the
preliminary injunction, “insofar as it precludes the Navy from considering respondents’
vaccination status in making deployment, assignment, and other operational decisions.” Austin v.
U.S. Navy SEALs 1–26, 142 S. Ct. 1301, 1301 (2022) (mem.).
Plaintiffs sought certification of a class of 4,095 Navy servicemembers and asked the Court
to grant class-wide injunctive relief. ECF Nos. 89, 104. The Court certified the class and granted
class-wide relief on March 28, but immediately stayed the injunction in accordance with the
Supreme Court’s March 25 order. Defendants filed their Motion to Dismiss on February 7, alleging
lack of subject matter jurisdiction and improper venue. The Motion is now ripe for the Court’s
review.
II. LEGAL STANDARD
A. Lack of Subject Matter Jurisdiction
A party may challenge subject matter jurisdiction by filing a Rule 12(b)(1) motion. If the
court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P.
12(h)(3). A court may find subject matter jurisdiction is lacking from “(1) the complaint alone;
(2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.” Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). A court should grant a Rule 12(b)(1) motion
“only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that
would entitle plaintiff to relief.” Id.
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“Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by
statute, lack the power to adjudicate claims.” Stockman v. FEC, 138 F.3d 144, 151 (5th Cir. 1998).
“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.
Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.”
Ramming, 281 F.3d at 161 (citation omitted).
B. Improper Venue
A plaintiff’s choice of venue is entitled to deference absent a showing of good cause that
transfer is appropriate. In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc).
Unless provided for by another statute, venue is governed by the general venue statute. 28 U.S.C.
§ 1391(a). Under § 1391, venue is proper in “a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred.” Id. § 1391(b)(2). Venue is proper where
substantial activities took place even if more or most substantial activities occurred in a different
district. Tex. Marine & Brokerage, Inc. v. Euton, 120 F. Supp. 2d 611, 612 (E.D. Tex. 2000).
A party moving to dismiss based on improper venue does so under Rule 12(b)(3). In
determining whether venue is proper, “the court is permitted to look at evidence in the record
beyond simply those facts alleged in the complaint and its proper attachments.” Ambraco, Inc. v.
Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009). “[T]he court may find a plausible set of facts by
considering any of the following: (1) the complaint alone; (2) the complaint supplemented by the
undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.” Lane ex rel. Lane v. Halliburton, 529 F.3d 548, 557
(5th Cir. 2008) (internal quotation marks omitted). When a case is filed in a division or district of
improper venue, the district court may either dismiss the case or transfer it to any district or division
of proper venue. 28 U.S.C. § 1406(a).
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C. Transfer Venue
Even if venue in a district is proper, the court may transfer a case to any proper judicial
district or division “for the convenience of parties and witnesses, in the interest of justice.” Id.
§ 1404(a). The decision to transfer a pending case is committed to the sound discretion of the
district court. Jarvis Christian Coll. v. Exxon Corp., 845 F.2d 523, 528 (5th Cir. 1988).
A threshold transfer inquiry is whether the suit “might have been brought” in the proposed
transferee district. In re Volkswagen of Am., 545 F.3d at 312. If the defendant satisfies that burden,
the court weighs certain public-interest and private-interest factors to determine if transfer is “for
the convenience of parties and witnesses and in the interest of justice.” Id. at 315.
III. ANALYSIS
A. Ripeness and Exhaustion
First, Defendants argue that Plaintiffs’ claims are not ripe for review because Plaintiffs
have not yet exhausted the Navy’s internal processes for religious accommodation requests and
appeals. Defs.’ Br. 16–17, ECF No. 107. Plaintiffs respond that they are not required to exhaust
their military remedies because the Fifth Circuit has already resolved the exhaustion question in
Plaintiffs’ favor. Pls.’ Resp. 7, ECF No. 131 (citing U.S. Navy Seals 1–26, 27 F.4th at 347.
Plaintiffs argue their claims are ripe for review because they present purely legal questions and
because denying judicial review would create hardship. Pls.’ Resp. 7–9, ECF No. 131.
This Court has twice concluded—and the Fifth Circuit has affirmed—that Plaintiffs’ claims
are justiciable under Mindes and, therefore, Plaintiffs need not exhaust their military remedies. See
PI Order 8–16, ECF No. 66; Class-Wide PI Order 19–22, ECF No. 140; U.S. Navy Seals 1–26, 27
F.4th at 347 (“The district court determined that each of the four additional Mindes considerations
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favors justiciability. We agree.”). But this Court has not yet addressed ripeness. See Class-Wide
PI Order 14 n.3, ECF No. 140.
To determine whether a matter is ripe for judicial review, courts consider “(1) the fitness
of the issues for judicial resolution, and (2) the potential hardship to the parties caused by declining
court consideration.” Lopez v. City of Hous., 617 F.3d 336, 341 (5th Cir. 2010). “A case is
generally ripe if any remaining questions are purely legal ones.” Id. (cleaned up). This Court has
already determined that “[w]hether the vaccine mandate passes muster under the First Amendment
and RFRA . . . is a purely legal question appropriate for judicial review.” PI Order 16, ECF No.
66. The record indicates the Navy’s evaluation process is predetermined. At last count, all “finally
resolved” appeals had been denied. Defs.’ Ex. 4, App. 56, ECF No. 121. Zero requests had been
granted. Id. Denials are apparently inevitable, and appeals are fruitless. In short, there is no need
to wait for further factual development. Cf. Monk v. Houston, 340 F.3d 279, 282 (5th Cir. 2003).
The second prong of the ripeness requirement also weighs in Plaintiffs’ favor. Substantial
hardship exists when a party must choose between (1) complying with the law and (2) facing
“significant sanctions.” See Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660, 681–82 (N.D.
Tex. 2016). Plaintiffs face substantial hardship here. They have been forced to choose between
compliance with the vaccine mandate and adherence to sincerely held religious beliefs. While
formal discipline and separations are presently stayed, some Plaintiffs are experiencing ongoing
harm to their careers as Defendants prevent them from deploying or accepting certain assignments.
See U.S. Navy SEALs 1–26, 142 S. Ct. at 1301. Absent adjudication by the Court, Plaintiffs would
certainly suffer hardship. Thus, Plaintiffs easily satisfy the second requirement. The case is ripe,
and the Court must DENY the Motion on this basis.
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B. Venue
Next, the Court addresses whether Defendants waived venue. Rule 12(h)(1) governs waiver
of defenses, including venue. “[E]ven when venue is laid in a court where it would otherwise be
improper, it may be waived by express agreement or by conduct.” Hunt v. Bankers Tr. Co., 799
F.2d 1060, 1068 (5th Cir. 1986). Plaintiffs claim Defendants waived their venue objection by
“actively litigat[ing] all aspects of the case before this Court without raising any venue objections.”
Pls.’ Resp. 11, ECF No. 131. Two months elapsed between the date Plaintiffs filed their complaint
and the date Defendants raised their venue objection for the first time in their original Motion to
Dismiss. See ECF No. 1, 73–74. During that time, Defendants made several defensive moves
including “extensive briefing and a hearing on Plaintiffs’ motion for a preliminary injunction” as
well as briefing regarding the protective order, scheduling order, and pseudonymous litigation
motion. Pls.’ Resp. 11, ECF No. 131.
A defendant must raise his objection to venue “at the time he makes his first defensive
move whether it be a Rule 12 motion or a responsive pleading.” T & R Enters. v. Cont’l Grain Co.,
613 F.2d 1272, 1277 (5th Cir. 1980) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1391 (3d ed.)). Some courts have concluded that, more broadly, a
defendant may waive his right to challenge venue when he “engage[s] in substantive aspects of
the case,” including preliminary injunction proceedings, before raising the issue. Tinnus Enters. v.
Telebrands Corp., 2017 WL 3671375, at *4 (E.D. Tex. Aug. 1, 2017). The Fifth Circuit has not
definitively concluded whether a venue objection must be raised at the preliminary injunction
stage. Cf. Wyrough & Loser, Inc. v. Pelmor Lab’ys, Inc., 376 F.2d 543, 547 (3d Cir. 1967) (holding
that “venue should be raised and disposed of before the court considers the merits or quasimerits
of a controversy,” i.e., at the preliminary injunction stage).
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This Court finds that Defendants waived the right to challenge venue by failing to object
during the preliminary injunction stage. Defendants could have preserved their venue objection
when they (1) first responded regarding the briefing schedule (ECF No. 30); (2) addressed the
preliminary injunction motion (ECF No. 43); (3) engaged in the protective order briefing (ECF
No. 50); or (4) appeared for hearing (ECF No. 61). At any point, Defendants could have raised
their concerns about venue. Instead, they proceeded without objection. Therefore, Defendants
waived this right, and the Court DENIES Defendants’ Motion to Dismiss on the basis of improper
venue.
IV. CONCLUSION
For the reasons stated, the Court DENIES Defendants’ Motion to Dismiss. ECF No. 106.
Accordingly, Defendants’ request to stay discovery pending resolution of this Motion is MOOT.
See Joint Report 3–4, ECF No. 142. The parties shall file an updated Joint Report with proposed
dates no more than 14 days after the Court resolves the Emergency Motion regarding the Lescher
deposition (ECF No. 146).
SO ORDERED on this 7th day of May, 2022.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
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