Reply In Support Of Motion
- Date
- 2022-03-01
Source document: Reply In Support Of Motion; document type: Reply brief (Plaintiffs' Reply in Support of Motion for Class Certification).
Full text
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,
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.
Case No. 4:21-cv-01236-O
REPLY IN SUPPORT OF MOTION
FOR CLASS CERTIFICATION
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INTRODUCTION
Defendants’ arguments against class certification fail. They largely resort to arguing about
the merits—or the answers—to the classwide questions of law and fact rather than engaging on
the questions themselves and whether they are common to the class and “central to the validity of
each class member’s claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011). Defendants’ dispute as to whether they have a policy of denying all Religious
Accommodation (RA) requests is not a reason not to certify the class. Rather, that factual
contention is an answer to a question of fact common to all class members. See Dkt. 90 at 5.
Regardless, the Amended Complaint sufficiently alleges a common policy. And as the Fifth Circuit
just concluded, the Navy has “stacked the deck” against RA requestors and there is a “pattern of
disregard for RFRA rights rather than individualized consideration.” Navy SEALs 1-26 v. Biden,
No. 22-10077 (5th Cir. Feb. 28, 2022), slip op. at 18, 26-27.
Defendants also claim the class is not ascertainable, but Defendants have full knowledge
of how many servicemembers have submitted RA requests. Defendants also argue that the Named
Plaintiffs’ claims are not typical of the class members, but that argument fails for the same reason
Defendants’ commonality argument fails. Defendants also contend that the Named Plaintiffs have
conflicts because of other cases in other jurisdictions, but there is no “conflict” where other
plaintiffs seek the same or similar relief, and no other classes of Navy servicemembers who
submitted RA requests have been certified. Defendants also argue that the Court should defer its
decision pending their motion to stay the injunction pending appeal, but the Fifth Circuit has now
rejected that request. Navy SEALs 1-26, slip op. at 2. There is no reason to delay, especially since
members of the proposed classes are suffering harm now. See Dkt. 133; see also, e.g., Dkt. 134 at
App.0104-06, 0132-33.
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ARGUMENT
I.
The Proposed Subclasses are Ascertainable.
Defendants argue in their response that the proposed subclasses are not ascertainable
because “they are constantly in flux” and “include individuals who are currently serving in units
across the Navy.” Dkt. 120 at 10. That argument fails because it ignores the proposed subclass
definitions which limit the subclasses to members of the Navy Class who have submitted a RA
request concerning the Navy’s COVID-19 Vaccine Mandate. Dkt. 90 at 2. The Navy knows and
can easily ascertain the number of servicemembers who have submitted Religious Accommodation
requests, and indeed, has submitted that information to the Court. See Dkt. 121 at App.056. It is
simply false for Defendants to claim that they cannot ascertain which of those servicemembers are
assigned to the Naval Special Warfare or Naval Special Operations subclass, and to the Navy
SEALs subclass, especially since it is Defendants who make those decisions.
II.
The Proposed Class and Subclasses Satisfy the Requirements of Rule 23(a).
Defendants argue that Plaintiffs fail to meet the required showings of commonality,
typicality, and adequacy under Rule 23(a).1 Dkt. 120 at 10. That argument fails for numerous
reasons, as discussed below.
A. Commonality: There are questions of fact and law common to the Class and
Subclass members.
Plaintiffs’ motion lists twenty-four common questions of law and fact that 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
1 Defendants do not contest that Plaintiffs have satisfied numerosity under Rule 23(a).
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statutory violations of the class member’s rights. Wal-Mart, 564 U.S. at 350; Dkt. 90 at 5-8.
Defendants’ response does not mention or address any of Plaintiffs’ common questions and instead
presents arguments regarding the merits of Plaintiffs’ claims. In other words, Defendants focus on
the answers to many of the common questions presented by Plaintiffs rather than whether these
questions satisfy commonality under Federal Rule of Civil Procedure 23(a).
Commonality “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 Plaintiffs have alleged here, and what the
Fifth Circuit recognized. Navy SEALs 1-26, slip op. at 6-7, 26-27. Common questions that apply
to all class members involve whether the Navy inappropriately discriminated against religious
belief in compelling vaccination despite those beliefs, refused to accommodate those beliefs, and
granted exemptions for secular but not religious reasons. Defendants do not and cannot dispute
that these are common questions capable of resolution on a classwide basis.
Defendants argue that resolving RFRA claims requires an individualized analysis of each
class member’s claim, which is true, but misses the point. The allegation that Defendants’ policies
fail to do that is the common question of fact. Defendants merely dispute whether that is factually
true, claiming that “the Navy undertakes a highly individualized process to review and adjudicate
religious exemption requests on a case-by-case basis.” Dkt. 120 at 8. That assertion is directly
contradicted by this Court’s findings in its order granting Plaintiffs’ preliminary injunction (Dkt.
66) and by the Fifth Circuit’s order denying Defendants’ motion to stay the preliminary injunction.
Moreover, as the Supreme Court held in Wal-Mart, what matters for purposes of class certification
is presenting common questions that will drive the resolution of the claims on a classwide basis,
not whether Plaintiffs will actually win on the merits of those claims. For example, if Plaintiffs
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prove at trial that the Defendants do in fact have classwide policies or practices of across-the-board
denial of all religious accommodation requests, then Defendants are liable for violating RFRA as
to all class members. But if Defendants prove at trial that they do not have such a policy or practice,
then Defendants may defeat liability for violating RFRA as to all class members. But the proof
and evidence of such policies or practices (or lack thereof) is a merits question to be determined
after the proposed class and subclasses are certified. Plaintiffs satisfy Rule 23(a) because they
alleged a common policy or practice of denying all religious accommodation requests and
presented numerous common questions that will drive the resolution of the claims on a classwide
basis.
Finally, by focusing their commonality arguments on the answers to the common questions
Plaintiffs have presented, Defendants essentially concede that Plaintiffs have satisfied
commonality. For example, Defendants dispute the Navy’s Standard Operating Procedure (SOP)
despite this Court’s findings and the findings of the Fifth Circuit that the SOP is evidence of the
Navy’s policy or practice of across-the-board denial of all religious accommodation requests.
There is no evidence that the Navy conducts an individualized assessment of each religious
accommodation request, but even if the Navy could present such evidence, it goes to the merits of
the claims and not whether Plaintiffs have satisfied the commonality requirement under Rule 23(a).
Plaintiffs’ common questions of law and fact fit squarely within the commonality requirements of
Rule 23(a), and Defendants’ factual disputes are irrelevant to whether the class should be certified.
B. 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
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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 v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th
Cir. 1999) (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 v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001).
Defendants argue that Plaintiffs have not satisfied typicality because there are “different
circumstances and religious objections and analyses for objecting to the vaccine.” Dkt. 120 at 19.
Defendants claim that these differences are “all essential for determining the elements of that
individual’s RFRA claim.” Id. This argument fails for the same reasons as Defendants’
commonality arguments. Plaintiffs have alleged claims that do not require an individualized
assessment because Plaintiffs allege that Defendants’ policies and practices result in across-the-
board violations of all class members’ rights. Plaintiffs’ claims are therefore typical of the claims
of all other class members.
C. 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.
Defendants argue that there are conflicts between the Plaintiffs and members of the
proposed class because there are cases pending in other federal courts challenging the same or
similar military vaccine requirements. The fact that plaintiffs in other cases are seeking relief from
policies and practices that are similar to those being challenged here does not give rise to a conflict
between the Plaintiffs and any other proposed class member. In fact, the injunctive relief that the
Plaintiffs seek on behalf of the proposed class would be consistent with—and certainly not in
conflict with—the relief being sought in other lawsuits challenging the same or similar policies
and practices.
Further, the Named Plaintiffs are clearly adequate representatives, see App. 001-012, given
their willingness to sacrifice their careers and livelihood to 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.
III.
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
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declaratory judgment would provide relief to each member of the class.” Wal-Mart, 564 U.S. at
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. Defendants’ arguments under Rule 23(b) are baseless and nothing more
than another attempt to defend the merits and claim, despite the evidence, that the Navy conducts
individualized assessments of RA requests.
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.”). Plaintiffs have satisfied Rule 23(b).
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IV.
Defendants’ Claim of Non-Conferral Is Baseless.
Defendants argue that the Court should deny the motion because they claim Plaintiffs failed
to confer with them as required by the Local Rules of this Court. But Local Rule 7(a) only requires
counsel “to determine whether the motion is opposed.” Defendants essentially object because
Plaintiffs did not negotiate with Defendants about the content of a motion that Defendants are
obviously opposed to. Defendants have been opposed to every motion they claim they Plaintiffs’
counsel did not confer adequately with them on, so it is unclear why an extensive conferral process
is necessary for motions that will obviously be opposed, and only serves to unnecessarily delay
filings for an empty convention, which is probably Defendants’ true goal. The Local Rules also
explicitly exclude common motions that parties will be opposed to from the conference
requirement, which suggests that this requirement is not meant to be a pointless formality. Further,
Defendants point to no authority that says the proper remedy for lack of compliance with Rule 7(a)
is the denial of a meritorious motion.
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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Respectfully submitted this 1st day of March, 2022.
Kelly J. Shackelford
Texas Bar No. 18070950
Jeffrey C. Mateer
Texas Bar No. 13185320
Hiram S. Sasser, III
Texas Bar No. 24039157
David J. Hacker
Texas Bar No. 24103323
Michael D. Berry
Texas Bar No. 24085835
Justin Butterfield
Texas Bar No. 24062642
Danielle Runyan *
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.
/s/ Andrew B. Stephens
Andrew B. Stephens
Texas Bar No. 24079396
Heather Gebelin Hacker
Texas Bar No. 24103325
HACKER STEPHENS LLP
108 Wild Basin Road South, Suite 250
Austin, Texas 78746
Tel.: (512) 399-3022
heather@hackerstephens.com
andrew@hackerstephens.com
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on March 1, 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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