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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
OPPOSITION TO REQUEST FOR LEAVE TO INTERVENE
Plaintiffs U.S. Navy SEALs 1-3 and U.S. Navy Explosive Ordnance Disposal Technician
1 (“Named Plaintiffs”), on behalf of themselves and all others similarly situated, and Plaintiffs
United States Navy SEALs 4-26, United States Navy Special Warfare Combatant Craft Crewmen
1-5, and United States Navy Divers 1-3 (“Individual Plaintiffs”; collectively, “Plaintiffs”) file this
Response to the Request for Leave to Intervene (“Motion”) filed by pro se litigant Mike Webb
(“Webb”) and would respectfully show the Court as follows:
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INTRODUCTION
The Court should deny the Motion. It is unclear exactly why Webb seeks to intervene in
this action, as the Motion seems primariliy centered on claims related to information sought by
Webb under the Freedom of Information Act (“FOIA”). What is clear, though, is that Webb cannot
and does not meet the requirements for intervention under Rule 24. Webb’s claims and interests
are not related to the Plaintiffs or their claims under RFRA or the First Amendment. Indeed,
Webb’s claims have no relation to the vaccine mandate at issue in this case at all. Because Webb
cannot satisfy the requirements for intervention, the Motion should be denied.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 24 governs intervention. A party is entitled to intervene
under Rule 24(a)(2) only if (1) the motion to intervene is timely, (2) the interest asserted by the
potential intervenor is related to the action, (3) the interest may be impaired or impeded by the
action, and (4) the interest is not adequately represented by the existing parties. In re Lease Oil
Antitrust Litig., 570 F.3d 244, 247 (5th Cir. 2009). “If a party seeking to intervene fails to meet
any one of those requirements, it cannot intervene as a matter of right.” Sierra Club v. Espy, 18
F.3d 1202, 1205 (5th Cir. 1994).
Rule 24(b)(1) allows for permissive intervention upon the timely filing of a motion by any
party who “has a claim or defense that shares with the main action a common question of law or
fact.” Fed. R. Civ. P. 24 (b)(1). The decision to grant a permissive intervention “is wholly
discretionary.” Kneeland v. NCAA, 806 F.2d 1285, 1289 (5th Cir. 1987). Courts “must consider
whether the intervention will unduly delay or prejudice the adjudication of the original parties’
rights.” Fed. R. Civ. P. 24(b)(3). They may also consider “whether the intervenors’ interests are
adequately represented by other parties and whether they will significantly contribute to full
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development of the underlying factual issues in the suit.” New Orleans Pub. Serv., Inc. v. United
Gas Pipe Line Co., 732 F.2d 452, 472 (5th Cir. 1984).
ARGUMENT
I.
Webb is not entitled to intervene as a matter of right.
A quick review of the Motion reveals that Webb makes no effort to discuss any of the
elements for intervention beyond quoting Rule 24. The Court should deny the Motion for this
reason alone. See Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007) (stating
that inadequately briefed issues are considered waived). In any event, Webb cannot satisfy all
elements required for intervention as a matter of right.
Even if the Court assumed the Motion is timely, Webb failed to satisfy the other three
elements. Webb cannot show his interest relates to the current action. When the “property or
transaction” of an action is a federal statute, “the legal question is whether the [intervenor has] an
‘interest’ relating to” the statute.” Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015). Webb
must have “a stake in the matter that goes beyond a generalized preference that the case come out
a certain way.” Id. at 658. Here, Webb has not shown any interest relating to those asserted by
Plaintiffs. While Webb asserts a myriad of interests, including informational interests under FOIA,
he does not assert any interest under RFRA or the First Amendment. At most, Webb mentions that
he asserted a RFRA claim in another lawsuit. Motion at 12. But this is insufficient to satisfy the
interest element.
Webb also fails to demonstrate how his interest would be impaired by this action or why
Plaintiffs inadequately represent any interest Webb has in the subject matter of this action.
Regarding impairment, intervention as of right “generally is not appropriate where the applicant
can protect its interests and/or recover on its claim through some other means.” Deus v. Allstate
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Ins. Co., 15 F.3d 506, 526 (5th Cir. 1994). Webb has other means of protecting his interests through
other lawsuits he already filed seeking similar relief. As to inadequacy or representation, Webb’s
interests appear to be adverse to Defendants’ interests and possibly aligned with or at least agnostic
to Plaintiffs’ interests. He therefore “must show adversity of interest, collusion, or nonfeasance on
the part of the existing party to overcome the presumption” of adequacy. Edwards v. City of Hous.,
78 F.3d 983, 1005 (5th Cir. 1996). Webb has not and cannot meet this standard. Thus, he is not
entitled to interevention as of right.
II.
Webb does not satisfy the requirements for permissive intervention.
Webb also fails to satisfy the standard for permissive intervention. As discussed above,
Rule 24(b)(1) requires Webb to show he “has a claim or defense that shares with the main action
a common question of law or fact.” Fed. R. Civ. P. 24 (b)(1). No such claim exists here. Indeed,
Webb is not a member of the class this Court recently certified. The Motion does not indicate that
Webb ever sought a religious exemption from the vaccine mandate that is the subject matter of
this litigation, nor is he even a member of the Navy. Because there are no issues of common fact
or law, granting the Motion will in no way “contribute to full development of the underlying factual
issues in the suit.” New Orleans Pub. Serv., 732 F.2d at 472. The Court should deny the Motion.
CONCLUSION
For the foregoing reasons, the Court should deny the Motion.
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Respectfully submitted this 9th day of May, 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 A. RUNYAN *
New Jersey Bar No. 027232004
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
HEATHER GEBELIN HACKER
Texas Bar No. 24103325
ANDREW B. STEPHENS
Texas Bar No. 24079396
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 May 9th, 2022, I electronically filed this Opposition to the Request
for Leave to Intervene through the Court’s ECF system, which automatically sends notification of
such filing to counsel of record.
/s/ Andrew B. Stephens
ANDREW B. STEPHENS
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