Motion For Class Certification
- Date
- 2022-02-15
Summary
Defendants' opposition to plaintiffs' motion for class certification in Navy SEALs 1-3, et al. v. Lloyd Austin, III, in his official capacity as Secretary of Defense, et al., Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, filed February 15, 2022 as Document 120. It responds to a January 25, 2022 motion to certify a class of Navy members subject to the Navy's COVID-19 Vaccine Mandate who submitted religious accommodation requests, plus two subclasses. The government argues the motion should be denied for failure to confer under Local Rule 7.1(b)(3), that the subclasses are not ascertainable, and that the classes fail the commonality, typicality and adequacy requirements of Rule 23(a) and the requirements of Rule 23(b)(2). It also asks the court to defer ruling until the Fifth Circuit decides the appeal of the preliminary injunction.
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Case 4:21-cv-01236-O Document 120 Filed 02/15/22 Page 1 of 27 PageID 3730
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
NAVY SEALS 1-3, et al.,
Plaintiffs,
v. Case No. 4:21-cv-01236-O
LLOYD AUSTIN, III, in his official capacity as
Secretary of Defense, et al.,
Defendants.
DEFENDANTS’ OPPOSITION TO PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
Case 4:21-cv-01236-O Document 120 Filed 02/15/22 Page 2 of 27 PageID 3731
TABLE OF CONTENTS
INTRODUCTION................................................................................................................... 1
ARGUMENT .......................................................................................................................... 2
I. Plaintiffs’ Motion Should be Denied for Failure to Confer. .......................................3
II. The Proposed Subclasses Are Not Ascertainable.......................................................4
III. The Proposed Classes Do Not Satisfy Rule 23(a) Requirements. ...............................5
A. The Proposed Classes Do Not Share Common Questions. ...................................5
B. Lead Plaintiffs Are Not Typical Of The Putative Classes. .................................. 13
C. Plaintiffs And Their Counsel Have Not Shown They Will Fairly And Adequately
Protect The Interests Of The Classes................................................................. 15
IV. Plaintiffs Fail to Show a Class That Can Be Maintained Under Rule 23(b). ............. 19
V. The Court Should Defer Ruling on Plaintiffs’ Request for Certification. .................. 20
CONCLUSION ......................................................................................................................21
i
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TABLE OF AUTHORITIES
Cases
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997)...................................................................................................... 16, 19
Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,
568 U.S. 455 (2013)............................................................................................................. 6
Arizona v. Evans,
514 U.S. 1 (1995) ......................................................................................................... 17, 21
Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex.,
571 U.S. 49 (2013)..............................................................................................................18
Beck v. Maximus, Inc.,
457 F.3d 291 (3d Cir. 2006) ................................................................................................18
Berger v. Compaq Comput. Corp.,
257 F.3d 475 (5th Cir. 2001) ...............................................................................................16
Bolin v. Sears, Roebuck & Co.,
231 F.3d 970 (5th Cir. 2000) ...............................................................................................19
Casa Orlando Apartments, Ltd. v. Fed. Nat’l Mortg. Ass’n,
624 F.3d 185 (5th Cir. 2010) ...............................................................................................19
Chavez v. Plan Benefit Servs. Inc.,
957 F.3d 542 (5th Cir. 2020) ...............................................................................................15
Conrad v. Gen. Motors Acceptance Corp.,
283 F.R.D. 326 (N.D. Tex. 2012) ......................................................................................... 4
DeBremaecker v. Short,
433 F.2d 733 (5th Cir. 1970) ................................................................................................ 4
DeOtte v. Azar,
332 F.R.D. 188 (N.D. Tex. 2019) ........................................................................................12
Dodson v. Dep’t of Army,
988 F.2d 1199 (Fed. Cir. 1993) ............................................................................................ 9
Doe 2 v. Shanahan,
917 F.3d 694 (D.C. Cir. 2019) ......................................................................................... 9, 10
Dukes v. Wal-Mart Stores, Inc.,
603 F.3d 571 (9th Cir. 2010) .............................................................................................7, 8
ii
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Feder v. Elec. Data Sys. Corp.,
429 F.3d 125 (5th Cir. 2005) ...............................................................................................16
Flecha v. Medicredit, Inc.,
946 F.3d 762 (5th Cir. 2020) ........................................................................................... 2, 13
Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147 (1982)............................................................................................................13
H.M. v. United States,
No. CV 17-00786, 2017 WL 10562558 (C.D. Cal. Aug. 21, 2017) .......................................18
Burwell v. Hobby Lobby,
573 U.S. 682 (2014)............................................................................................................. 6
In re Delta/AirTran Baggage Fee Antitrust Litig.,
317 F.R.D. 675 (N.D. Ga. 2016)........................................................................................4, 5
In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig.,
851 F. Supp. 2d 1040 (S.D. Tex. 2012) ................................................................................13
In re Navy Chaplaincy,
306 F.R.D. 33 (D.D.C. 2014) ............................................................................................8, 9
In re Navy Chaplaincy,
No. 19-5204, 2020 WL 11568892 (D.C. Cir. Nov. 6, 2020)................................................... 9
James v. City of Dallas, Tex.,
254 F.3d 551 (5th Cir. 2001) ................................................................................... 13, 14, 15
John v. Nat’l Sec. Fire & Cas. Co.,
501 F.3d 443 (5th Cir. 2007) .............................................................................................2, 4
Kincade v. Gen. Tire & Rubber Co.,
635 F.2d 501 (5th Cir. 1981) ...............................................................................................15
Landis v. N. Am. Co.,
299 U.S. 248 (1936)............................................................................................................20
M.D. ex rel. Stukenberg v. Perry,
675 F.3d 832 (5th Cir. 2012) ........................................................................................... 3, 12
Maldonado v. Ochsner Clinic Found.,
493 F.3d 521 (5th Cir. 2007) ........................................................................................... 2, 19
Monk v. Huston,
340 F.3d 279 (5th Cir. 2003) ...............................................................................................18
iii
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Reeb v. Ohio Dep’t of Rehab. & Corr.,
435 F.3d 639 (6th Cir. 2006) ...............................................................................................15
Robinson v. Tex. Auto. Dealers Ass’n,
387 F.3d 416 (5th Cir. 2004) ................................................................................................ 2
Salem v. Mich. Dep’t of Corr.,
No. 13-CV-14567, 2019 WL 4409709 (E.D. Mich. Sept. 16, 2019) ......................................18
Sherman v. Trinity Teen Sols., Inc.,
339 F.R.D. 203 (D. Wyo. 2021) ..........................................................................................18
Slade v. Progressive Sec. Ins.,
856 F.3d 408 (5th Cir. 2017) ...............................................................................................16
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998)..............................................................................................................19
Tagore v. United States,
735 F.3d 324 (5th Cir. 2013) ................................................................................................ 6
TransUnion LLC v. Ramirez,
141 S. Ct. 2190 (2021) ........................................................................................................18
Union Asset Mgmt. Holding A.G. v. Dell, Inc.,
669 F.3d 632 (5th Cir. 2012) ................................................................................................ 4
United States v. Mendoza,
464 U.S. 154 (1984)............................................................................................................17
Vegetal,
546 U.S. 418 (2006)............................................................................................................. 7
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011)..................................................................................................... passim
Ward v. Hellerstedt,
753 F. App’x 236 (5th Cir. 2018) ......................................................................................3, 4
Rules
Fed. R. Civ. P. 23(a)(2)............................................................................................................ 6
Fed. R. Civ. P. 23(b)(2) ................................................................................................ 2, 15, 19
iv
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INTRODUCTION
On January 25, 2022, four of the thirty-five unnamed plaintiffs—specifically, Navy SEALs
1–3 and Navy Explosive Ordnance Disposal Technician 1 (“EOD 1”)—moved to certify 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.” Pls.’ Mot. to Certify Class (“Mot.”), ECF No. 90 at 2.
Plaintiffs also moved to certify two subclasses, including 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” (“Special Warfare
Subclass”); and 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” (“SEALs Subclass”). Id. Plaintiffs further request that the Court appoint Plaintiffs’
counsel as class counsel.
As an initial matter, Plaintiffs’ motion should be denied because Plaintiffs failed to confer
as required under Local Rule 7.1(b)(3). Regardless, Plaintiffs’ proposed classes fail to meet the
requirements of Rule 23. Both of Plaintiffs’ proposed subclasses are unascertainable because they
attempt to encompass a highly fluid, ever-changing group of service members. The proposed
classes do not share common questions, as required by Rule 23(a)(2), because the Navy has a
process to review religious accommodation requests to the vaccine requirement on a case-by-case
basis. Similarly, lead Plaintiffs are not typical of the putative classes, as required by Rule 23(a)(3),
because the putative class members encompass a broad range of religious beliefs, job positions
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and responsibilities, and potentially less restrictive means of achieving the Navy’s compelling
governmental interest in maintaining a medically fit force ready for deployment at all times. Nor
do Plaintiffs address how they overcome conflicts between themselves and members of the
putative classes, especially given the seven lawsuits that Navy service members have filed around
the country challenging the COVID vaccine requirements. Given the case-by-case review process
and the variety of putative class members, Plaintiffs also fail to show that Defendants have “acted
or refused to act on grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2). Finally,
the Court should defer ruling on Plaintiffs’ request for certification until the Fifth Circuit rules on
Defendants’ appeal of this Court’s order granting Plaintiffs’ Motion for Preliminary Injunction.
ARGUMENT
Class actions are an exception to the ordinary course of American legal practice. See Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011). A putative class representative may litigate
the class’s claims only if he is “part of the class and ‘possess[es] the same interest and suffer[s]
the same injury’ as the class members.” Id. at 348–49 (citation omitted)).
“To obtain class certification, parties must satisfy Rule 23(a)’s four threshold requirements,
as well as the requirements of Rule 23(b)(1), (2), or (3).” Maldonado v. Ochsner Clinic Found.,
493 F.3d 521, 523 (5th Cir. 2007). These four threshold conditions are “commonly known as
numerosity, commonality, typicality, and adequacy of representation.” Flecha v. Medicredit, Inc.,
946 F.3d 762, 766 (5th Cir. 2020) (citing Fed. R. Civ. P. 23(a)) (additional citation and quotations
omitted). Parties seeking class certification must also satisfy the ascertainability requirement
implicit in Rule 23. See John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007).
“To make a determination on class certification, a district court must conduct an intense
factual investigation.” Robinson v. Tex. Auto. Dealers Ass’n, 387 F.3d 416, 420 (5th Cir. 2004).
2
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The plaintiff bears the burden to prove that these requirements have been met, and its offer of proof
is subject to “rigorous analysis” in light of the “claims, defenses, relevant facts, and applicable
substantive law.” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 837 (5th Cir. 2012) (vacating
class certification); see also Ward v. Hellerstedt, 753 F. App’x 236, 246 (5th Cir. 2018) (vacating
class certification when district court failed adequately “to consider and discuss the facts of this
case, as well as the elements of Plaintiffs’ claims, prior to rejecting Defendant’s argument that
dissimilarities among individual claimants obviate commonality”).
Plaintiffs fail to show that their class is ascertainable; fail to show that the class has the
requisite commonality, typicality, or adequacy; and fail to show that they meet the requirements
under Rule 23(b)(2).
I. Plaintiffs’ Motion Should be Denied for Failure to Confer.
Before reaching the substance of the motion, it should first be noted that Plaintiffs failed
to properly confer with Defendants as required under Local Rule 7.1(b)(3). See Local Rule
7.1(b)(3) (providing that “[i]f a conference was not held, the certificate [of conference] must
explain why it was not possible to confer.”). At 12:11 PM on January 25, 2022, Plaintiffs emailed
Defendants to ascertain their position on Plaintiffs’ motion. See Ex. 1 (Email Chain Between
Counsel re: Meet and Confer) (App002). At 2:06 PM on the same day, Defendants sent an email
to Plaintiffs suggesting a call the following day, January 26, 2022, to discuss that motion. See id.
Specifically, Defendants suggested the parties discuss the subclass definition because the words in
Plaintiffs’ proposed definition “who are now or will be assigned,” see Pls.’ Am. Compl., ECF No.
84 ¶ 54, are vague and leave the class indescribable, see Ex. 1 (Email Chain) (App002).
Defendants also suggested the parties discuss how Plaintiffs planned to address the fact that other
service members who would likely fall into Plaintiffs’ putative class brought suit in other
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jurisdictions. See id. Rather than respond to Defendants’ email, at 2:14 PM on January 25, 2022,
Plaintiffs filed their Motion for Class Certification. ECF No. 90. At 2:21 PM Plaintiffs filed their
Brief in Support of their Motion. ECF. No. 50. Plaintiffs’ Certificate of Conference inaccurately
states that Defendants had not responded to their email, and does not explain why it was not
possible to confer with Defendants pursuant to Local Rule 7.1 (b)(3). 1 Accordingly, Plaintiffs’
motion should be denied for failure to comply with the Local Rules.
II. The Proposed Subclasses Are Not Ascertainable.
As a threshold matter, “to maintain a class action, the class sought to be represented must
be adequately defined and clearly ascertainable.” Union Asset Mgmt. Holding A.G. v. Dell,
Inc., 669 F.3d 632, 639 (5th Cir. 2012) (quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th
Cir. 1970) (per curiam)); see also John, 501 F.3d at 445 (explaining that ascertainability is an
“implied prerequisite” of Rule 23). “An identifiable class exists if its members can be ascertained
by reference to objective criteria (ascertainability).” Conrad v. Gen. Motors Acceptance Corp.,
283 F.R.D. 326, 328 (N.D. Tex. 2012). This requirement protects absent plaintiffs “by defining
who is entitled to relief,” and it protects defendants “by enabling a final judgment that clearly
identifies who is bound by it.” In re Delta/AirTran Baggage Fee Antitrust Litig., 317 F.R.D. 675,
679 (N.D. Ga. 2016) (quoting 1 William B. Rubenstein, Newberg on Class Actions § 3:1 (5th ed.
2011)).
Here, Plaintiffs’ proposed subclasses are both unascertainable. The proposed Special
Warfare Subclass includes “all members of the Navy Class who are now or will be assigned to
Plaintiffs similarly failed to meaningfully confer prior to filing their Motion to Show
1
Cause by refusing to provide Defendants any information regarding their allegations despite
Defendants’ repeated requests. See ECF No. 95 at 4. Plaintiffs also failed to confer before filing
their motion for a Protective Order. See ECF No. ECF No. 30 at 2.
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Naval Special Warfare or Naval Special Operations” and the proposed SEALs Subclass includes
“all members of the Navy Class who are now or will be United States Navy SEALs.” Am. Compl.
at 2. The subclasses, as Plaintiffs have defined them, are unascertainable because they are
constantly in flux. See Am. Compl., ECF No. 84 ¶ 54 (emphases added). With regard to the
proposed Special Warfare Subclass, “[t]he ‘class’ of individuals that ‘will be assigned’ to [Naval
Special Warfare] includes service members “from every corner of the service.” Ex. 2 (Decl. of
Elizabeth Galvez) ¶ 3 (App014). The putative class members include individuals who “are
currently serving in units across the Navy,” id. ¶ 4 (App014), because any given Navy Special
Warfare operation requires “skillsets from a range of military specialties,” id. ¶ 3 (App014). As
such, there is no principled way to define what service members “will be assigned to Naval Special
Warfare or Naval Special Operations.” Am. Compl. at 2.
With regarding to the proposed SEAL Subclass, “the pool of special operator trainees is
highly fluid and ever-changing.” Ex. 2 (Galvez Decl.) ¶ 8 (App016). It is not possible to ascertain
who “will be United States Navy SEALs” and have also submitted a religious accommodation
request concerning the vaccine requirement, Am. Compl. at 2, because the assignment cannot be
guaranteed until a service member has officially matriculated as a SEAL, see Ex. 2 (Galvez Decl.)
¶ 8 (App016) (noting that “only around 25% of th[e] candidates will complete the pipeline and
become combatant craft crewmen”). Accordingly, Plaintiffs’ proposed subclasses are both
unascertainable.
III. The Proposed Classes Do Not Satisfy Rule 23(a) Requirements.
Plaintiffs fail to establish that their proposed classes meet the required showings of
commonality, typicality, and adequacy under Rule 23(a).
A. The Proposed Classes Do Not Share Common Questions.
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Commonality under Rule 23(a)(2) is the existence of “questions of law or fact common to
the class.” Fed. R. Civ. P. 23(a)(2). This requires not just the literal raising of “common
‘questions,’” but also “the capacity of a class-wide proceeding to generate common answers apt
to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (citation omitted). Plaintiffs
must demonstrate not only that their claims depend on a “common contention,” but that contention
“must be of such a nature that 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.” Id. at 350; see also Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S.
455, 468 (2013). This requires more than showing “merely that [class members] have all suffered
a violation of the same provision of law.” Wal-Mart, 564 U.S. at 350) (“Quite obviously, the mere
claim by employees of the same company that they have suffered a Title VII injury, or even a
disparate-impact Title VII injury, gives no cause to believe that all their claims can be productively
litigated at once.”).
Establishing commonality in the context of a RFRA class action poses significant hurdles.
Resolving a RFRA claim requires individualized analysis of the particular burden on the
individual’s exercise of religion, the government’s compelling interest in implementing a
requirement, and the availability of less restrictive alternatives to each such application. See Order
on Preliminary Injunction (“Op.”), ECF No. 66 at 19 (explaining that the RFRA analysis must
“consider the ‘asserted harm of granting specific exemptions to particular religious claimants”
(quoting Burwell v. Hobby Lobby, 573 U.S. 682, 726–27 (2014))); see also Tagore v. United
States, 735 F.3d 324, 328 (5th Cir. 2013) (“The sincerity of a plaintiff’s belief in a particular
religious practice is an essential part of the plaintiff’s prima facie case under . . . RFRA.”); id. at
331 (explaining that “RFRA requires the government to explain how applying the statutory burden
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‘to the person’ whose sincere exercise of religion is being seriously impaired furthers
the compelling governmental interest” (quoting Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, 546 U.S. 418, 430–31 (2006))). RFRA claims “contemplate an inquiry more focused
than [a] categorical approach.” Gonzales, 546 U.S. at 430–31. Thus, the fact that many putative
class members might raise a RFRA claim as to the same policy does not, in itself, establish
commonality.
Rather, in a discrimination-type case, the putative class must establish that the reasons for
adverse treatment are the same for each putative class member. See Wal-Mart, 564 U.S. at 352
(explaining that when plaintiffs “wish to sue about literally millions of employment decisions at
once” under Title VII, “[w]ithout some glue holding the alleged reasons for all those decisions
together, it will be impossible to say that examination of all the class members’ claims for relief
will produce a common answer to the crucial question why was” each exemption request denied).
The Supreme Court in Wal-Mart provided that when a party seeks to certify a class concerning
thousands of independent employment decisions under a theory of a pattern or practice of
discrimination, it must either: (1) show that the employer “used a biased testing procedure to
evaluate . . . applicants” common to the whole proposed class, or (2) provide “[s]ignificant proof
that an employer operated under a general policy of discrimination” that would apply to the class.
Id. at 353; see also id. at 347 (rejecting plaintiffs’ argument that their “evidence of commonality
was sufficient to ‘raise the common question whether Wal-Mart’s female employees nationwide
were subjected to a single set of corporate policies (not merely a number of independent
discriminatory acts)” (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 612 (9th Cir. 2010))).
Plaintiffs’ proposed class action fails to meet these requirements. First, Plaintiffs fail to
show that Defendants used biased procedures common to any of the three subclasses. To the
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contrary, the Navy undertakes a highly individualized process to review and adjudicate religious
exemption requests on a case-by-case basis. See Ex. 3 (Decl. of Capt. Mery-Angela Sanabria
Katson, Feb. 15, 2022) ¶¶ 5–16 (App020–26). That process considers, individually for each
requestor, the sincerity of the requestor’s religious belief; whether the vaccine requirement
imposes a substantial burden upon that belief; whether that burden is required in furtherance of a
compelling Naval interest; and whether there are any less restrictive means to achieve that interest.
See id. Each stage is highly dependent on the particular facts applicable to the individual requestor.
See id. The final stage, in particular—whether there are any less restrictive means to achieve the
Naval interest—is especially individualized. See id. ¶ 12. Specific duty assignments bear heavily
on this factor. See id. ¶¶ 12–13 (providing examples of important considerations, such as whether
the service member lives or works in close quarters on a ship, how fast a service member may have
access to proper medical care, and the potential spread of disease from U.S. Navy personnel to
foreign or host-nation personnel). Plaintiffs cannot show that Defendants use classwide biased
procedures.
Nor have Plaintiffs provided any evidence—let alone the requisite “significant proof”—
that the Navy “operated under a general policy of discrimination.” Wal-Mart, 564 U.S. at 353.
“In this case, just as in Walmart, Plaintiffs do not allege that the Navy ever had an express policy”
of discrimination. See In re Navy Chaplaincy, 306 F.R.D. 33, 48 (D.D.C. 2014). Rather, Plaintiffs
allege that Defendants have a “polic[y] or practice[] of across-the-board denial of all Religious
Accommodation requests” concerning the COVID-19 vaccine requirement. Am. Compl. ¶ 57.
But at best, Plaintiffs provide “anecdotal evidence,” which is “too weak to raise any inference that
all the individual, discretionary personnel decisions are discriminatory.” Wal-Mart, 564 U.S. at
358. Plaintiffs fail to show that any alleged discrimination “manifested itself . . . in the same
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general fashion” across each of the putative class members’ unique religious accommodation
requests. Id. at 353.
Preliminarily, only a small percentage of the accommodation requests have been fully
adjudicated on appeal across the Navy. See Ex. 4 (Decl. of Mery-Angela Sanabria Katson, Feb.
3, 2022) (App056) (showing that, in the Navy, only 81 religious accommodation requests have
been fully adjudicated through appeal and 1,222 appeals remain pending). Drawing any
conclusions from the available data—and certainly any conclusion that accommodation requests
are not being considered in good faith—is entirely unwarranted.
Regardless, the mere fact that many requests have been denied is consistent with the
military’s compelling interest in stemming the spread of COVID-19 and maintaining a medically
fit force. See ECF No. 87, Ex. 1 ¶ 5 (Decl. of Admiral William K. Lescher) (App005); Ex. 5 (DoDI
1332.45) at 4 (App061) (“To maximize the lethality and readiness of the joint force” it is DoD
policy that “all Service members are expected to be deployable.”). And “[s]tatistical
disparities . . . are not proof that any particular plaintiff, must less the class as a whole, has been
discriminated against.” In re Navy Chaplaincy, 306 F.R.D. at 52; see also In re Navy Chaplaincy,
No. 19-5204, 2020 WL 11568892, at *1 (D.C. Cir. Nov. 6, 2020), cert. denied sub
nom. Chaplaincy of Full Gospel Churches v. Dep't of the Navy, 142 S. Ct. 312, 211 L. Ed. 2d 148
(2021) (rejecting same evidence of statistical disparity in affirming district court’s grant of
summary judgment in favor of the Navy). Further, Plaintiffs’ claim that the entire religious
accommodation request process is a sham necessarily requires a finding that hundreds of military
officials are acting in concert to issue indiscriminate and undifferentiated denials of each service
member’s request. Cf. Dodson v. Dep’t of Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993) (“[M]ilitary
administrators are presumed to act lawfully and in good faith like other public officers, and the
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military is entitled to substantial deference in the governance of its affairs.”); Doe 2 v. Shanahan,
917 F.3d 694, 731 (D.C. Cir. 2019) (Williams, J., concurring) (noting that “the plausibility of such
a scheme tends to unravel as we try to imagine the dozens of participants,” including “Cabinet
members and other officials,” “who would have been needed for its realization” (quotation marks
omitted)). Plaintiffs may disagree that the Navy has a compelling interest in slowing the spread
of COVID-19, but disagreement does not mean that military leaders are operating in bad faith.
Plaintiffs’ only support for their allegations that Defendants have a policy of
discrimination—besides the fact that some of the thirty-five Plaintiffs’ religious accommodation
requests have been initially denied and two have been denied on appeal, see ECF No. 108, Ex. 8
(Decl. of Capt. Mery-Angela Sanabria Katson, Feb. 7, 2022) ¶ 3 (App007) (as of February 2,
2022)—appears to be an anonymous complaint Plaintiffs’ counsel “received on December 23,
2021 from one of [his] clients,” ECF 62 (Decl. of Andrew B. Stephens) at 2. This anonymous
complaint does not purport to be from a Plaintiff in this litigation and was not signed under penalty
of perjury. See generally id. It is unclear if the proponent of the anonymous complaint even knows
that this complaint was filed in this lawsuit or that it has been relied on by Plaintiffs. Id. Such
anonymous, unauthenticated, double hearsay does not amount to “significant proof” that senior
Navy officials are operating in bad faith. Wal-Mart, 564 U.S. at 353.
The anonymous complaint includes a copy of a Standard Operating Procedure (“SOP”)
providing instructions for processing religious accommodation requests. See ECF No. 62
(Stephens Decl.) at 10–17; see also Ex. 3 (Katson Decl., Feb. 15, 2022) ¶ 17 (App028) (“[SOPs]
are frequently used tools by military staff officers to implement efficient and uniform
administrative procedures across a wide-range of military issues.”). Plaintiffs allege that this SOP
is evidence that all religious accommodation requests are “pre-determined” and the process is “a
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fraud” because the SOP includes a denial letter template. ECF No. 62 (Stephens Decl.) at 2. To
the contrary, the SOP is an “administrative processing” tool to ensure that religious
accommodation requests are adjudicated efficiently—a necessary tool given the unprecedented
amount of religious accommodation requests related to the COVID-19 vaccine requirement. See
Ex. 3 (Katson Decl., Feb. 15, 2022) ¶ 19 (App030); see also id. ¶ 18 & n.7 (App028) (“[O]nly 66
requests for religious accommodation from any vaccine (excluding the COVID-19 vaccines) were
received from 2015 to the present. By contrast, 4,175 religious accommodation requests from the
COVID-19 vaccine have been received as of February 14, 2022.”). The SOP “does not dictate the
manner in which the adjudicating authority . . . assesses any particular [religious accommodation]
request.” Id. ¶ 19 (App030). Indeed, at Step 46, once the adjudicating authority has made a final
decision on the request, the form template may be modified before being returned to the
adjudicating authority. See id. ¶ 18 (App029). The SOP is not evidence of a sham religious
accommodation request process—it is merely an administrative tool to efficiently adjudicate the
unprecedented amount of requests.
Plaintiffs also emphasize the importance of the Navy’s medical accommodation process.
One of Plaintiffs’ alleged “[c]ommon [q]uestions” is whether the Navy has a “policy” of
disqualifying unvaccinated service members from special operations duty if they have submitted
a religious accommodation request, but not disqualifying unvaccinated service members from
special operations duty if they have submitted a medical accommodation request. Mot. at 6. But
the Navy does not treat unvaccinated service members differently depending on whether they
requested a medical accommodation versus a religious accommodation. Rather, the Navy requires
any service member who is not vaccinated—either by reason of a medical exemption or based on
a religious request—to obtain a separate waiver in order to become deployable and continue in
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that career field. See ECF No. 87, Ex. 2 ¶ 6 (Suppl. Decl. of Capt. Lanny Littlejohn) (App036–
37). 2 Thus the Navy’s medical accommodation process does not provide any evidence that the
Navy is biased against granting religious accommodations.
Ultimately, Plaintiffs’ allegations of a generalized policy of discrimination fail under the
requisite “rigorous” factual analysis. See M.D. ex rel. Stukenberg, 675 F.3d at 837. Plaintiffs’
claims turn on the distinct contours of each putative class member’s case—the “individualized
assessment” of their RFRA claims. Op. at 19; see also M.D. ex rel. Stukenberg, 675 F.3d at 840
(“Rule 23(a)(2) requires that all of the class member’s claims depend on a common issue of law
or fact whose resolution ‘will resolve an issue that is central to the validity of each one of the [class
member’s] claims in one stroke.’” (quoting Wal-Mart, 564 U.S. at 350) (emphasis and alteration
by Fifth Circuit)). This is in stark contrast to RFRA class actions challenging regulations that treat
each class member the same. For example, in DeOtte v. Azar, this Court certified two classes that
objected, based on religious belief, to a regulation mandating that they provide health insurance
coverage for contraceptive services. 332 F.R.D. 188, 197 (N.D. Tex. 2019) (O’Connor, J.). The
regulation applied with equal force to each class member. It was irrelevant that the putative class
members objected to different forms of contraceptives, because the regulation “compel[led]
coverage of all FDA-approved contraceptives.” Id. *199. Here, in contrast, the COVID-19
2 As explained in Defendants’ Motion for a Partial Stay, ECF No. 86, “a service member who
receives an exemption or accommodation from the COVID-19 vaccination requirement, whether for
religious or secular reasons, is not [physically qualified for special operations] unless he obtains separate
medical clearance.” Id. A medical exemption for the COVID-19 vaccination, like a religious exemption,
only determines whether the service member will not be required to receive the COVID-19 vaccination. In
either circumstance, a service member will not be considered physically qualified for special operations
duty and deployable until he receives separate medical clearance. See ECF No. 44, Ex. 10 ¶ 12 (Trident
Order #12) (App099) (“Special Operations qualification requires a separate waiver that is in addition to the
waiver of the COVID-19 vaccine requirement for all service members.”). “These deployability
determinations do not take into account whether a member is unvaccinated for secular or religious reasons;
all unvaccinated service members are treated the same for purposes of determining whether they should
receive a medical waiver that would render them fit for special operations duty.” ECF No. 87, Ex. 2 ¶ 6
(Suppl. Littlejohn Decl.) (App036–37).
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vaccine requirement—which expressly anticipates the possibility of exemptions for sincerely held
religious beliefs where required by law—does not treat each class member the same. As described,
the Navy has a detailed, individualized process to determine whether an exception to the vaccine
requirement should apply to a particular service member. To resolve Plaintiffs’ RFRA claims,
therefore, the Court would have to determine the propriety of the vaccine requirement as applied
in each individual service member’s case circumstance—an inquiry that cannot be resolved on a
classwide basis.
Because Plaintiffs fail to establish a “common contention,” the determination of which
“will resolve an issue central to the validity of each one of the [RFRA] claims in one stroke,”
Plaintiffs have failed to establish commonality with regard to any of their three proposed classes.
See Wal-Mart, 564 U.S. at 350.
B. Lead Plaintiffs Are Not Typical Of The Putative Classes.
For related reasons, Plaintiffs cannot satisfy the typicality requirement of Rule 23(a)(3).
Typicality and commonality “tend to merge,” and both ultimately address “whether under the
particular circumstances maintenance of a class action is economical and whether the named
plaintiff’s claim[s] and the class claim[s] are so interrelated that the interests of the class members
will be fairly and adequately protected in their absence.” Wal-Mart, 564 U.S. at 349 n.5 (quoting
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157–58, n.13 (1982)); see also Flecha v. Medicredit,
Inc., 946 F.3d 762, 768 (5th Cir. 2020). “[T]he critical inquiry [for typicality] is whether the class
representative’s claims have the same essential characteristics of those of the putative class.” See
In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 851 F. Supp. 2d 1040, 1054
(S.D. Tex. 2012) (quoting James v. City of Dallas, Tex., 254 F.3d 551, 571 (5th Cir. 2001))).
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As the Court described, the thirty-five named Plaintiffs as a whole oppose the vaccine
based on a broad wide variety of reasons: “(1) opposition to abortion and the use of aborted fetal
cell lines in development of the vaccine; (2) belief that modifying one’s body is an af[f]ront to the
Creator; (3) direct, divine instruction not to receive the vaccine; and (4) opposition to injecting
trace amounts of animal cells into one’s body.” Op. at 3–4. Expanding the scope to the entire
purported class would encompass a swath of different circumstances and religious objections and
analyses for objecting to the vaccine.
There exists similar variation with regard to each purported class members’ position within
the Navy. With regard to Plaintiffs’ proposed Navy Class, purported class members range from
pilots, submariners, surface warfare officers, to a host of other positions with greatly varying
responsibilities. Among Plaintiffs’ proposed subclasses there exists similar variety: putative
members of both the proposed SEALs Subclass and the proposed Special Warfare Subclass work
across all geographical locations and contexts.
Such differences go to the heart of each service members’ individual RFRA claim. The
particular circumstances of an individual’s reason for objecting to the vaccine, specific position,
and current job obligations within the Navy are all essential for determining the elements of that
individual’s RFRA claim. See Ex. 3 (Katson Decl., Feb. 15, 2022) ¶¶ 5–16 (App020–27). For
example, the effectiveness of alternatives of the COVID-19 vaccine “is extremely limited on
ships,” where service members “live, work, eat, and sleep in close proximity to other Sailors.” Id.
¶ 15 (App026). In contrast, “[h]ealth protection measures are more feasible ashore, . . . dependent
on the type of work a Sailor does and the configuration of their workplace.” Id. ¶ 16 (App026).
Additionally, the “[s]pread of communicable diseases among Sailors who live and work . . . in
austere deployed environments with limited access to immediate medical care, or for those who
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live or work in close proximity to others in the shore establishment, has the potential to cause
mission failure if one or more personnel become too sick to perform their jobs.” Id. ¶ 13 (App024–
25). Analyzing each service members’ particular circumstances is essential for balancing their
religious freedoms against the military’s interest in maintaining a medically fit force ready to
defend this Nation—and each putative class member has different particular circumstances.
Plaintiffs seek to litigate a class that includes different circumstances, religious objections,
and jobs in different locations with different responsibilities. Yet each purported class members
requires an individual assessment of the sincerity of their religious beliefs, the burden upon those
beliefs, the compelling governmental interest, and the least restrictive means of achieving that
interest. Accordingly, Plaintiffs have failed to establish typicality.
C. Plaintiffs And Their Counsel Have Not Shown They Will Fairly And
Adequately Protect The Interests Of The Classes.
Classes certified under Rule 23(b)(2), as Plaintiffs propose, are mandatory—any and every
person within the class will be bound by this Court’s judgment without the opportunity to opt out,
either before or after judgment. See, e.g., Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639,
645 (6th Cir. 2006) (“Rule 23(b)(2) authorize[s] ‘mandatory’ class actions under which potential
class members do not have an automatic right to notice or a right to opt out of the class.”); Kincade
v. Gen. Tire & Rubber Co., 635 F.2d 501, 506 (5th Cir. 1981) (“[I]t is clear that the Federal Rules
do not provide objectors a right to opt out of class actions brought under Rule 23(b)(2).”). As the
Fifth Circuit has observed, “the existence of a class fundamentally alters the rights of present and
absent members, particularly for mandatory classes such as the one here.” Chavez v. Plan Benefit
Servs. Inc., 957 F.3d 542, 547 (5th Cir. 2020).
Accordingly, before a Rule 23(b)(2) class can be certified, the Court must rigorously
examine whether the proposed class representatives will adequately represent the interests of the
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absent class members. See, e.g., Berger v. Compaq Comput. Corp., 257 F.3d 475, 479–80 (5th
Cir. 2001). This inquiry “serves to uncover conflicts of interest between the named plaintiffs and
the class they seek to represent.” Id. (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625
(1997)). In particular, “[a]dequacy 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 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)).
First, Plaintiffs here fail to show how they can overcome conflicts between themselves and
members of the proposed class. Putative class members have separately filed seven lawsuits
around the country challenging the COVID vaccine requirements. 3 In particular, one lawsuit
brings a competing class action claim. See Navy Seal 1 v. Biden, 21-cv-02429 (M.D. Fla.) (seeking
to certify class of “all United States Armed Forces service[ ]members and civilian federal
employees and contractors who are subject to Defendants[’] COVID-19 Vaccine Mandate, have
requested a religious exemption or accommodation from the Mandate based on sincerely held
religious beliefs against receiving a COVID-19 vaccine, and been denied such exemption or
accommodation”). Plaintiffs in those lawsuits have chosen their own counsel and their own forums
to press their claims, and to date, none has sought to consolidate with this present action. Some
have already resulted in decisions. 4 Managing a class action would also be untenable since those
3 See Navy Seal 1 v. Biden, 21-cv-02429 (M.D. Fla.); Crosby v. Austin, 8:21-cv-02730 (M.D. Fla.);
Doe v. Austin, 3:21-cv-01211 (N.D. Fla.); Fletterich v. Austin, 1:21-cv-03193 (D.D.C.); Lembo v. Del Toro,
22-cv-00325 (D.D.C.); Rudometkin v. Austin, 1:21-CV-02220 (D.D.C.); Payne v. Biden, 1:21-cv-03077
(D.D.C.).
4 See, e.g., Doe v. Austin, 3:21-cv-01211, Dkt. 47 (N.D. Fla. Nov. 12, 2021) (denying preliminary
injunction motions).
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other lawsuits raise slightly different issues—including claims not raised in this class action. See,
e.g., Doe v. Austin, 3:21-cv-1211, ECF. No. 47 (N.D. Fla. Nov. 12, 2021) (including claims under
substantive due process and unconstitutional conditions doctrine); Navy Seal 1 v. Biden, 21-cv-
02429, ECF No. 49-1 (M.D. Fla.) (including claims under APA and FDCA). Plaintiffs make no
mention of these competing lawsuits, nor do they proffer explanation of how putative class
members might choose which lawsuit to join. Other putative class members may choose to litigate
their claim alone, or with other counsel, or may wish to raise different claims or arguments, or
conceivably may wish not to seek legal redress at all—preferring to comply with a lawful order
after their administrative claim is decided and maintain their military service without litigation, or
indeed perhaps choose to leave the service or retire. The decision on whether to file suit in this
setting is uniquely personal, and yet all class members would be forced to have their claim
adjudicated as part of this lawsuit.
In situations like these, where multiple plaintiffs challenge a government policy in many
different forums, the Supreme Court has affirmed the importance of allowing individual lower
courts to consider the issue. “Government litigation frequently involves legal questions of
substantial public importance,” and “[a]llowing only one final adjudication would deprive this
Court of the benefit it receives from permitting several courts of appeals to explore a difficult
question before this Court grants certiorari.” See United States v. Mendoza, 464 U.S. 154, 160
(1984); see also Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting). Any order
issued here should be narrowly tailored to the claims of the lead Plaintiffs.
Plaintiffs’ litigation strategy has also prevented the putative class members from
identifying and evaluating any additional potential conflicts. Proceeding pseudonymously weighs
heavily against a finding that Plaintiffs have carried their burden under Rule 23(a)(4), because
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“without knowing [Plaintiffs’] identity, it would be difficult to determine if [they] and [their]
counsel have conflicts of interest with other class members.” Cf. Sherman v. Trinity Teen Sols.,
Inc., 339 F.R.D. 203, 206 (D. Wyo. 2021) (denying motion to proceed pseudonymously). Further,
“as the class representative[s], Plaintiff[s] ha[]ve a fiduciary duty and obligation to vigorously
prosecute the interests of the class. . . . In order to do so, the other class members should know
who is representing them.” Id.
Second, “unique defenses [against lead plaintiffs] bear on both the typicality and adequacy
of a class representative.” Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006). Here, the
Government may be able to present unique defenses that would negate the claims of a class
representative. For example, lead Plaintiffs do not have ripe claims since none of the four lead
Plaintiffs has completed the appeal process. See ECF No. 108, Ex. 2 (Katson Decl., Feb. 7, 2022)
¶ 3 (App007) (as of February 2, 2022); see also Monk v. Huston, 340 F.3d 279, 282 (5th Cir. 2003)
(explaining that “a case is not ripe if further factual development is required” (citation omitted));
cf. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“Article III does not give federal
courts the power to order relief to any uninjured plaintiff, class action or not.”); Salem v. Mich.
Dep’t of Corr., No. 13-CV-14567, 2019 WL 4409709, at *10 (E.D. Mich. Sept. 16, 2019); H.M.
v. United States, No. CV 17-00786, 2017 WL 10562558, at *28 (C.D. Cal. Aug. 21, 2017)
(explaining that Rule 23(a)(4) requires that plaintiffs “must ensure that the proposed class
representatives have standing to pursue claims that are ripe”). In addition, venue may not be proper
in this forum for Plaintiffs who do not reside here or cannot establish that a “substantial part of the
events or omissions giving rise to the claim occurred” in this forum. See Atl. Marine Constr. Co.
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v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 56 (2013). Such jurisdictional or venue
defects call into question whether lead Plaintiffs and counsel can adequately represent the class. 5
IV. Plaintiffs Fail to Show a Class That Can Be Maintained Under Rule 23(b).
“In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class certification must
show that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem, 521 U.S. at 614.
Plaintiffs here seek to certify a class under Rule 23(b)(2), which applies when “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.” Fed. R. Civ. P. 23(b)(2). Plaintiffs fail to make the required showing.
As the Fifth Circuit has explained, “this rule seeks to redress what are really group as
opposed to individual injuries,” thus “render[ing] the notice and opt-out provisions of [Rule
23](b)(3) unnecessary.” Casa Orlando Apartments, Ltd. v. Fed. Nat’l Mortg. Ass’n, 624 F.3d 185,
198 (5th Cir. 2010) (quoting Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 975 n.22 (5th Cir.
2000)). Certification under this provision is permissible “only when a single injunction or
declaratory judgment would provide relief to each member of the class.” Wal-Mart., 564 U.S. at
360. And the relief sought “must be specific.” Maldonado, 493 F.3d 521, 524 (5th Cir. 2007).
As explained, whether an employer has violated a civil rights statute depends on the
specific circumstances surrounding each individual employment action. This is particularly true
when, as here, Plaintiffs attempt to lump together every single denial within the Navy, and Navy
Defendants have moved to dismiss Plaintiffs’ Complaint on multiple grounds, includin g
5
because Plaintiffs’ claims are not ripe, Plaintiffs have failed to exhaust their administrative
remedies, and venue is improper in this district. The Court’s disposition of those arguments could
materially affect the scope of Plaintiffs’ motion for class certification. If the Court lacks subject
matter jurisdiction, it has no authority to certify this suit as a class action. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94 (1998).
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SEALs, and Naval Special Warfare or Naval Special Operations, respectively. In doing so,
Plaintiffs attempt to litigate a broad swath of different factual circumstances in one fell swoop.
Yet a RFRA assessment is highly specific: the Court must determine whether each and every class
members holds a sincerely held religious belief that precludes the use of a COVID-19 vaccine;
must determine whether a particular vaccination requirement substantially burdens that religious
belief; and (if the plaintiff meets those burdens) must examine, in light of the plaintiff’s particular
role, job responsibilities, and workplace, whether the government may use any means less
restrictive than vaccination to advance its compelling interests as applied to that particular
individual. And as discussed, Plaintiffs have failed to provide “significant proof” that the Navy
“operated under a general policy of discrimination.” Wal-Mart, 564 U.S. at 353. The Navy
reviews and adjudicates religious exemption requests on a case-by-case basis. The mere fact that
many requests have been denied is consistent with the military’s compelling interest in stemming
the spread of COVID-19 and maintaining a medically fit force. Accordingly, Plaintiffs have failed
to establish the requirements of Rule 23(b)(2).
V. The Court Should Defer Ruling on Plaintiffs’ Request for Certification.
Every court has the “inherent” power to “control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co.,
299 U.S. 248, 254 (1936). The Court here should exercise that discretion by deferring adjudication
of Plaintiffs’ motion for class certification pending resolution of Defendants’ appeal of the Court’s
order granting Plaintiffs’ Motion for a Preliminary Injunction, ECF No. 66. As explained in
Defendants’ Memorandum in Support of Motion for a Partial Stay Pending Appeal, ECF No. 86,
Defendants’ appeal will raise issues pertaining to the scope of review of military decisions and the
standard to be applied to any judicial review of Plaintiffs’ claims brought pursuant to the First
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Amendment and Religious Freedom Restoration Act in the military context. Id. at 7–10.
Defendants also respectfully submit that the Court based its injunction, at least in part, on a
misunderstanding of Navy Instructions. Id. at 9–10. The Fifth Circuit’s disposition of these legal
and factual questions will bear materially on Plaintiffs’ motion for class certification.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for class certification should be denied.
Dated: February 15, 2022 Respectfully submitted,
BRIAN M. BOYNTON /s/ Cassandra M. Snyder
Acting Assistant Attorney General ANDREW E. CARMICHAEL
AMY E. POWELL
ALEXANDER K. HAAS Senior Trial Counsel
Director, Federal Programs Branch STUART J. ROBINSON
Senior Counsel
ANTHONY J. COPPOLINO ZACHARY A. AVALLONE
Deputy Director COURTNEY D. ENLOW
LIAM C. HOLLAND
CASSANDRA M. SNYDER (DC Bar No.
1671667)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 451-7729
Fax: (202) 616-8460
Email: cassandra.m.snyder@usdoj.gov
Counsel for Defendants
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CERTIFICATE OF SERVICE
I hereby certify that on February 15, 2022, I electronically filed the foregoing paper with
the Clerk of Court using this Court’s CM/ECF system, which will notify all counsel of record of
such filing.
/s/ Cassandra M. Snyder
CASSANDRA M. SNYDER (DC Bar No. 1671667)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 451-7729
Fax: (202) 616-8460
Email: cassandra.m.snyder@usdoj.gov
22
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