Order (2022-04-06)

Date: 2022-04-06

Summary

A Joint Rule 26(f) Report in U.S. Navy SEALs 1–3 v. Lloyd J. Austin, III, Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division, filed April 28, 2022 as Document 142. It records that counsel conferred on April 6, 2022, and sets out the plaintiffs' claims under the Religious Freedom Restoration Act and the First Amendment over COVID-19 vaccine mandates and Trident Order #12, along with the defendants' responses. The report states the defendants' position that discovery should await a motion to dismiss and focus on administrative records, and describes a two-phase discovery plan. Proposed deadlines include completion of all fact and expert discovery by March 31, 2023, summary judgment motions by April 28, 2023, and a trial date of June 19, 2023. It is signed by counsel for both sides.

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Case 4:21-cv-01236-O Document 142 Filed 04/28/22 Page 1 of 9 PageID 4919

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,
Case No. 4:21-cv-01236-O
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.

JOINT RULE 26(f) REPORT

The parties, by and through their respective counsel, and pursuant to Federal Rule of Civil

Procedure 26(f), met on April 6, 2022, at 10:30 AM Central Time via telephone conference, and conferred

on the topics outlined in this report and discovery plan:

1. Nature and Basis of Claims and Defenses:

Plaintiffs claim that

(a) Defendants’ COVID-19 vaccine mandates violate Plaintiffs’ rights under the

Religious Freedom Restoration Act (“RFRA”);

(b) The medical-disqualification provision of Defendants’ Trident Order #12 violates

Plaintiffs’ rights under RFRA;
Case 4:21-cv-01236-O Document 142 Filed 04/28/22 Page 2 of 9 PageID 4920

exercise of religion under the First Amendment;

(d) The medical-disqualification provision of Defendants’ Trident Order #12 violates

Plaintiffs’ rights to the free exercise of religion under the First Amendment.

Defendants respond that

(a) Plaintiffs’ claims are non-justiciable as a matter of law;

(b) Plaintiffs’ claims are not ripe and/or they have not exhausted their administrative

remedies;

sincerely held religious belief that is substantially burdened by the DoD’s and the Navy’s COVID-

19 vaccination requirements;

(d) Even if Plaintiffs meet their burden, RFRA does not justify judicial intrusion into

military affairs in this case because the DoD and the Navy have a compelling interest in military

readiness, unit cohesion, good order and discipline, and the health and safety of Plaintiffs, their

unit, and any unit they may be assigned to in the future by mitigating the impact or potential impact

of disease and illness within the force through application of the COVID-19 vaccination

requirements to Plaintiffs. And no less restrictive means would satisfy that interest in this context;

(e) The First Amendment does not require the DoD or the Navy to

accommodate Plaintiffs’ religious beliefs in the face of its views that its vaccination requirements

are necessary to maintain military readiness, unit cohesion, good order and discipline, and the

health and safety of Plaintiffs, their unit, and any unit they may be assigned to in the future.

2. Possibilities for Promptly Settling or Resolving the Case: To date, the parties have not

discussed settlement.

2
Case 4:21-cv-01236-O Document 142 Filed 04/28/22 Page 3 of 9 PageID 4921

3. Initial Disclosures: As set forth below in Paragraph 5, Defendants maintain that this matter

is exempt from initial disclosures, but the parties agreed to exchange the initial disclosures no later than

April 29, 2022.

4. Preservation of Discoverable Information: The parties do not anticipate any issues with

preservation of discoverable information and have instructed their clients to preserve all potentially

discoverable information in this matter.

5. Anticipated Discovery: The parties propose to conduct discovery as follows:

Plaintiffs plan to conduct discovery on policies and procedures that Defendants used in considering

servicemembers’ religious accommodation requests with respect to mandatory COVID-19 vaccination,

alternative methods of mitigating COVID-19 other than vaccination, and the impact of COVID-19 on

servicemembers, including but not limited to depositions of individuals who have submitted declarations

in this lawsuit in support of Defendants’ claims and defenses.

Defendants’ position is that discovery should be delayed until a motion to dismiss is resolved, and

then should be focused in the first instance on the administrative records for the Plaintiffs’ religious

exemption requests, regardless of whether they are explicitly pled as APA claims. See generally Fed. R.

26(a)(1)(B), 26(f)(1) (exempting administrative record cases from Rule 26 requirements); 5 U.S.C. §

706(2)(B) (constitutional claims under the APA); Harvard Pilgrim Health Care of New Eng. v. Thompson,

318 F. Supp. 2d 1, 10 (D.R.I. 2004); Ala.-Tombigbee Rivers Coal. v. Norton, CV-01-S-0194-S, 2002 WL

227032, at *5-6 (N.D. Ala. Jan. 29, 2002); cf. Harkness v. United States, 727 F.3d 465, 471 (6th Cir. 2013)

(“[T]he review scheme does not carve out an exception for constitutional claims.”); Harkness v. Secretary

of the Navy, 858 F.3d 437, 449 (6th Cir. 2017) (upholding district court’s decision not to permit discovery

beyond the administrative record in case involving Navy Chaplain’s claims of religious discrimination).

The propriety of discovery may therefore be the subject of a forthcoming motion. To the extent discovery

3
Case 4:21-cv-01236-O Document 142 Filed 04/28/22 Page 4 of 9 PageID 4922

proceeds, Defendants would conduct discovery of the Plaintiffs on the nature of Plaintiffs’ religious

accommodation requests with respect to DoD’s and the Navy’s mandatory vaccination requirements, the

sincerity of Plaintiffs’ religious beliefs regarding vaccination, whether those beliefs are religious in nature,

the burden DoD’s and the Navy’s vaccination requirements impose on those beliefs, the impact disease

and illness has had or could have on Plaintiffs’ unit or another unit Plaintiffs could reasonably be assigned

to, the impact disease and illness has had on any mission Plaintiffs have participated in or any mission

Plaintiffs could reasonably be assigned to participate in, any means Plaintiffs postulate to be less restrictive

and equally as effective at preventing the spread of disease and illness within Plaintiffs’ unit or any unit

Plaintiffs could reasonably be expected to be assigned than/as vaccination.

The parties plan to conduct discovery in two phases:

(a) The first phase of discovery will include interrogatories, requests for admission,

and requests for the production of documents, as well as depositions of the named Plaintiffs and

several individuals who have submitted declarations in this lawsuit in support of Defendants’

claims and defenses.1

(b) The second phase of discovery will include all other depositions and any additional

interrogatories, requests for admission, and requests for the productions of documents.

6. Discovery Limits: Unless altered by subsequent agreement of the parties or court order,

and without prejudice to Defendants’ position set forth in paragraph 5, the parties agree to conduct

discovery in accordance with the Federal Rules of Civil Procedure.

7. Discovery Schedule: Without prejudice to Defendants’ position set forth in paragraph 5,

and to the extent appellate proceedings do not obviate the need for further district court proceedings, the

parties jointly propose the following discovery deadlines and limits:

1
Defendants reserve the right to object to the deposition of certain high-ranking officials pursuant to the apex doctrine. See
United States v. Morgan, 313 U.S. 409, 422 (1941)).

4
Case 4:21-cv-01236-O Document 142 Filed 04/28/22 Page 5 of 9 PageID 4923

(a) The parties shall serve their:

(i) interrogatories under FRCP 33 by July 15, 2022. Objections and responses

are due within 30 days after the interrogatory is served, unless otherwise agreed.

(ii) requests for production of documents under FRCP 34 by July 15, 2022.

Objections and responses are due within 30 days after the request is served, unless

otherwise agreed.

(iii) requests for admission under FRCP 36 by July 15, 2022. Objections and

responses are due within 30 days after the request is served, unless otherwise agreed.

(iv) Parties may serve additional interrogatories, requests for production, or

requests for admission after July 15, 2022, so long as doing so would not exceed the

maximum number of interrogatories, requests for production, or requests for admission.

(b) The deadline for seeking to join new parties is July 1, 2022, and Plaintiffs shall

amend their complaint no later than November 1, 2022.

30 by December 9, 2022.

(d) The parties shall serve subpoenas seeking third-party documents and/or depositions

by December 9, 2022.

(e) Depositions of the parties shall be at any mutually convenient dates, times, and

places. A party may conduct a nonparty deposition at a mutually convenient date, time, and place.

(f) The parties shall complete all fact depositions by January 31, 2023.

(g) The parties shall make expert disclosures under FRCP 26(a)(2) by January 31,

2023.

5
Case 4:21-cv-01236-O Document 142 Filed 04/28/22 Page 6 of 9 PageID 4924

(h) The parties shall serve their opening experts’ reports under FRCP 26(a)(2) by

January 31, 2023.

(i) The parties shall serve their rebuttal expert reports under FRCP 26(a)(2) by

February 28, 2023.

(j) The parties shall complete expert depositions by February 17, 2023, for affirmative

experts and March 17, 2023, for rebuttal experts.

(k) The parties shall complete all supplements to discovery under FRCP 26(e),

including expert reports, by March 31, 2023.

(l) The parties shall complete all fact and expert discovery by March 31, 2023.

(m) The parties shall file motions for summary judgment, if any, by April 28, 2023,

with the deadlines for filing responses and replies governed by Local Rule 7.1.

(n) At this time Defendants’ position is that the litigation can be resolved on motions

for summary judgment. At this time Plaintiffs position is that the litigation cannot be resolved on

motions for summary judgment. The parties agree that June 19, 2023 or as soon thereafter as the

Court’s calendar permits is an acceptable trial date.

8. Treatment of Electronically Stored Information: The parties have discussed the existence

of electronically stored information (ESI) in this matter, and have reached the following agreements:

(a) The parties agree to preserve ESI related to any claim or defense in this matter.

(b) The parties agree to confer about the format for production of ESI. In general,

production in pdf form will be acceptable, but the parties may specifically request production of

ESI in its original electronic form when necessary, unless the original electronic form is proprietary

or is in a format that the requesting party cannot readily access, in which case ESI shall be produced

in PDF format for documents, MP3 format for audio, or MP4 format for video.

6
Case 4:21-cv-01236-O Document 142 Filed 04/28/22 Page 7 of 9 PageID 4925

drive.

9. Privilege Claims: The parties acknowledge that they must disclose on a privilege log any

information they withhold from production based on privilege or work-product protection. The parties

agree to prepare and produce a privilege log that complies with FRCP 26(b)(5)(A) within 14 days of any

document production or interrogatory response, unless otherwise agreed.

10. Confidentiality: On December 6, 2021, the Court issued a Protective Order protecting the

Pseudonymous Plaintiffs’ identities, or other personally identifying information that would lead to the

discovery of Plaintiffs’ identities, in a court filing or proceeding in this action. Dkt.37.

11. Modification: This agreement may be modified by an agreement signed by the parties or

by the Court for good cause shown.

12. At this time, the parties do not request any other orders under Rule 16(b) or (c), but notify

the Court that the parties are discussing the propriety of an order under Federal Rule of Evidence 502(d),

and an order to protect discoverable information that is protected by the Privacy Act. Plaintiffs request

that the Court grant the full protective order against disclosure of Plaintiffs’ identities, which is fully

briefed and remains pending. Dkt. 26.

[SIGNATURE PAGE FOLLOWS]

7
Case 4:21-cv-01236-O Document 142 Filed 04/28/22 Page 8 of 9 PageID 4926

Dated April 28, 2022.

Respectfully submitted, Respectfully submitted,

/s/ Andrew B. Stephens /s/ Andrew E. Carmichael
HEATHER GEBELIN HACKER
Texas Bar No. 24103325 BRIAN M. BOYNTON
ANDREW B. STEPHENS Principal Deputy Assistant Attorney General
Texas Bar No. 24079396
HACKER STEPHENS LLP ALEXANDER K. HAAS
108 Wild Basin Road South, Suite 250 Director, Federal Programs Branch
Austin, Texas 78746
Tel.: (512) 399-3022 ANTHONY J. COPPOLINO
heather@hackerstephens.com Deputy Director
andrew@hackerstephens.com
ANDREW E. CARMICHAEL
KELLY J. SHACKELFORD AMY E. POWELL
Texas Bar No. 18070950 Senior Trial Counsel
JEFFREY C. MATEER STUART J. ROBINSON
Texas Bar No. 13185320 Senior Counsel
HIRAM S. SASSER, III ZACHARY A. AVALLONE
Texas Bar No. 24039157 COURTNEY D. ENLOW (NC Bar No. 46578)
DAVID J. HACKER LIAM C. HOLLAND
Texas Bar No. 24103323 CASSANDRA SNYDER
MICHAEL D. BERRY Trial Attorneys
Texas Bar No. 24085835 United States Department of Justice
JUSTIN BUTTERFIELD Civil Division, Federal Programs Branch
Texas Bar No. 24062642 1100 L Street, N.W.
DANIELLE A. RUNYAN * Washington, DC 20005
New Jersey Bar No. 027232004 Tel: (202) 616-8467
HOLLY M. RANDALL * Fax: (202) 616-8470
Oklahoma Bar No. 34763 Email: courtney.d.enlow@usdoj.gov
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600 Attorneys for Defendants
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

8
Case 4:21-cv-01236-O Document 142 Filed 04/28/22 Page 9 of 9 PageID 4927

JORDAN E. PRATT
Florida Bar No. 100958* **
FIRST LIBERTY INSTITUTE
227 Pennsylvania Ave., SE
Washington, DC 20003
Tel: (972) 941-4444
jpratt@firstliberty.org

Attorneys for Plaintiffs

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Order (2022-04-06)

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