Full text
No. 22-10077
In the United States Court of Appeals
for the Fifth Circuit
U.S. Navy SEALs 1-26; U.S. Navy Special Warfare
Combatant Craft Crewmen 1-5; U.S. Navy Explosive
Ordnance Disposal Technician 1; U.S. Navy Divers 1-3,
Plaintiffs-Appellees,
v.
Joseph R. Biden, Jr., in his official capacity as President of the United
States of America; Lloyd Austin, Secretary, U.S. Department of
Defense, individually and in his official capacity as United States Secretary
of Defense; United States Department of Defense; Carlos
Del Toro, individually and in his official capacity as United States
Secretary of the Navy,
Defendants-Appellants.
On Appeal from the United States District Court
for the Northern District of Texas, Fort Worth Division
No. 4:21-cv-01236
MOTION TO SUPPLEMENT THE RECORD
Kelly J. Shackelford
Jeffrey C. Mateer
Hiram S. Sasser, III
David J. Hacker
Michael D. Berry
Justin Butterfield
Jordan E. Pratt
Danielle A. Runyan
Holly M. Randall
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600
Plano, Texas 75075
Tel: (972) 941-4444
Heather Gebelin Hacker
Andrew B. Stephens
HACKER STEPHENS LLP
108 Wild Basin Road South
Suite 250
Austin, Texas 78746
(512) 399-3022 (phone)
heather@hackerstephens.com
Counsel for Plaintiffs-Appellees
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Plaintiffs-Appellees hereby move to supplement the record before this Court with
the deposition transcript of Admiral William K. Lescher. In support, Plaintiffs-
Appellees state as follows:
1.
On January 24, 2022, Defendants filed the Declaration of Admiral
William Lescher, Vice Chief of Naval Operations (the “Declaration”) in support of
their Motion for a Partial Stay Pending Appeal. ROA.22-10534.2578-96. In the
Declaration, Admiral Lescher makes factual assertions regarding various topics,
including the harm the district court’s injunction would cause to the Navy, the
necessity of the Navy’s COVID-19 vaccine mandate, and COVID-19’s threat to the
Navy. See generally id.
2.
The Declaration is a key piece of evidence in this case. In fact, when the
Supreme Court granted Defendants’ Motion for Partial Stay, Justice Kavanaugh
cited the Declaration as a reason for granting the partial stay. Austin v. U. S. Navy
Seals 1–26, 142 S. Ct. 1301, 1302 (2022) (Kavanaugh J., concurring). Defendants also
cite the Declaration extensively in their Opening Brief and in their Supplemental
Brief and argue the statements made in the Declaration and Admiral Lescher’s
resulting judgment are entitled to deference. See Opening Br. at 35-38; Supp. Br. at
16.
3.
Recently uncovered facts illustrate that the Declaration is entitled to no
such deference. On June 30, 2022, Plaintiffs deposed Admiral Lescher. During the
deposition, Admiral Lescher demonstrated numerous times that he did not have the
personal knowledge to attest to the facts set forth in the Declaration and that
significant portions of his declaration amount to unsubstantiated speculation. See,
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e.g., Mot. Appx. Ex. A (Tr. at 22:11–22:20, 23:4–23:6, 23:16–24:1 (stating details
regarding the effect COVID-19 had on naval ships was “not generally” within his
purview and that he did not speak to individuals with such knowledge before drafting
his declaration)); 1 id. at 33:18–34:8 (stating he was unaware of any combat operations
negatively impacted by COVID-19);2 id. at 50:15–51:16 (stating he was unaware of
specific examples of COVID-19 made a medical evacuation more difficult, was
contracted through a rebreathing device, or was contracted on a submarine);3 id. at
1 Q Do you know how many other ships, other than the 22 you mentioned
that currently have COVID cases, were unable to accomplish their
mission prior to the vaccine mandate as a result of COVID-19 infections
other than ROOSEVELT?
A Again, that type of detail is not generally in the purview of the vice
chief.
. . .
Q Did you speak with any of those individuals [with knowledge about
the ships] prior to or while preparing your -- your declaration concerning
this statement or – or any other statements contained herein?
A . . . nothing specific in the context of this declaration.
2 Q Okay. Can you identify any combat operations or combat missions that
could not be completed successfully as a result of COVID-19?
A . . . I believe the most accurate response to that is I’m unaware of any
combat failure, as well I’m -- because those type of details and missions
would not be under the purview of the vice chief . . . .
3 Q Okay. Do you -- can you identify any Naval Special Warfare missions
in which COVID-19 infection prevented a medical evacuation of a
Service member?
. . .
A No.
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73:16–73:20 (stating he had not had any discussions with individuals with relevant
knowledge regarding missions impacted by COVID-19 prior to signing his
declaration);4 id. at 81:19–82:1 (stating he did not review any documents or reports
while reviewing and editing his declaration).5
4.
The district court correctly rejected Defendants’ arguments that courts
owe blind deference to military commanders on matters implicating the Religious
Freedom Restoration Act (RFRA). Admiral Lescher’s deposition testimony bolsters
Q Could you -- can you identify or are you aware of any instances in
which COVID-19 made a medical evacuation of a Service member more
difficult?
A No.
Q Can you identify any instances in which a Naval Special Warfare
Service member contracted COVID-19 as a result of using a re-breathing
device?
A Again, I would -- that would not be something that I would become
aware of, but the answer is no.
Q Okay. And can you identify any instances in which Service members
deployed on a submarine -- Naval Special Warfare Service members
deployed on a submarine contracted COVID-19?
A I’m unaware.
4 Q Okay. And so prior to -- prior to executing your declaration, you had
not had those conversations about any specific Naval Special Warfare
missions that had been impacted by – [COVID?]
A Correct.
5 Q Okay. So you don’t recall looking at any -- any documents, reports or
other types of information when you were reviewing, editing the draft
of your declaration. Is that right?
A That’s correct.
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this conclusion and demonstrates that this Court should not rely upon the
Declaration while considering Defendants’ appeal, or at minimum, should give it the
weight appropriately given to hearsay statements made without personal knowledge.
So that the Court may decide the proper weight that it should give to the Declaration
in deciding this appeal, this Court should allow Plaintiffs to supplement the record
with of the transcript of Admiral Lescher’s deposition.
5.
Admiral Lescher’s deposition testimony will also be helpful to the
Court in deciding the legal issues in this appeal: namely, whether the Navy has a
compelling interest that justifies the vaccine mandate as applied to religious
objectors, and whether the mandate is the least restrictive means available to
accomplish that interest. For instance, Admiral Lescher testified at length about his
understanding that Religious Accommodation requests should be considered based
on detailed individual circumstances and also take into account the recommendation
of the commanding officer of the individual requesting accommodation. See, e.g.,
Mot. Appx. Ex. A (Tr. at 17:13–18:5, 61:19–62:4, 62:17–63:1, 138:11–139:19). This is
relevant because as Defendants emphasize in arguing for deference to Lescher’s
assertions, Admiral Lescher is the “second-highest uniformed officer in the Navy.”
Opening Br. 35. Admiral Lescher also testified about the Navy’s permissive attitude
toward individuals at recognized high risk for complications or severe cases of
COVID-19, in contrast to its treatment of religious objectors. See, e.g., Mot. Appx.
Ex. A (Tr. at 155:14–157:16, 159:1–159:6, 165:7–167:7, 170:18–173:3).
6.
Courts have long recognized that they have the authority to permit the
appellate record to be supplemented when doing so would be in the interest of
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justice. Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984); see also Ross v.
Kemp, 785 F.2d 1467, 1474 (11th Cir. 1986) (recognizing the court’s “inherent
equitable authority to enlarge the record and consider material that has not been
considered by the court below”); Turk v. United States, 429 F.2d 1327, 1329 (8th Cir.
1970) (authorizing enlargement of record on appeal with preliminary hearing
evidence not presented to trial court if it is “in the interest of justice” to do so);
Gatewood v. United States, 209 F.2d 789, 792 n. 5 (D.C. Cir. 1953) (considering a
transcript of preliminary proceedings which had not been before trial court because
it was in interest of both parties and due administration of justice).
7.
Courts address requests to supplement an appellate record on a case-
by-case basis. Ross, 785 F.2d at 1474; see also Singleton v. Wulff, 428 U.S. 106, 121
(1976) (stating the “matter of what questions may be taken up and resolved for the
first time on appeal is one left primarily to the discretion of the courts of appeals, to
be exercised on the facts of individual cases.”).
8.
Factors courts consider when examining a request for supplementation
include whether the supplemental materials contain information that will illuminate
an issue before the court and whether remanding the case to the district court for
consideration of the additional material would be contrary to both the interests of
justice and the efficient use of judicial resources. See Vital Pharms., Inc. v. Alfieri, 23
F.4th 1282, 1288 (11th Cir. 2022) (allowing supplementation because the
supplemental material illuminated an important issue in the appeal); Teamsters Loc.
Union No. 117 v. Washington Dep’t of Corr., 789 F.3d 979, 986 (9th Cir. 2015)
(allowing supplementation for the limited purpose of confirming harms
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acknowledged by a party in general terms during discovery and because a remand
would merely prolong the proceedings); Ross, 785 F.2d at 1475 (discussing the
factors); see also Gibson, 744 F.2d at 405 n.3 (permitting supplementation because
remanding the case would unnecessarily prolong proceedings and because the
evidence confirmed the proper resolution of the case).
9.
Here, the interests of justice weigh in favor of allowing
supplementation. The preliminary injunction at issue in this interlocutory appeal
was partially stayed by the Supreme Court. The important issues in this case show
that supplementing the record with this pertinent information will be helpful to the
Court. Further, the deposition transcript that Plaintiffs seek to submit to this Court
undermines a key piece of evidence that was cited by Justice Kavanaugh as a reason
for partially staying the injunction and deferring to high-ranking military officials.
Austin, 142 S. Ct. at 1302 (Kavanaugh J., concurring). As demonstrated by Admiral
Lescher’s deposition testimony, the Declaration was largely speculation and factual
allegations that were beyond Admiral Lescher’s personal knowledge. Illumination of
these facts is essential as this Court considers whether the district court’s
preliminary injunction was an abuse of discretion.
10. Further, remanding the case for the district court to consider this evidence
would not be a good use of judicial resources. The district court already rejected the
assertions in the Declaration when it denied Defendants’ Motion to Stay the
Preliminary Injunction. See ROA.22-1077.2964-73. Asking the district court to reach
this conclusion again with evidence that bolsters the conclusion the court already
reached would unnecessarily prolong the resolution of this case. Thus, to aid the
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Court in deciding the issues pending in this interlocutory appeal and to preserve
judicial resources, Plaintiffs request that the record on appeal be supplemented with
the transcript from Admiral Lescher’s deposition.6 In the alternative, Plaintiffs
request that the Court take judicial notice of the transcript. See Hall v. City of
Houston, No. 21-20451, 2022 WL 3031306, at *2 (5th Cir. Aug. 1, 2022) (judicial
notice appropriate where facts “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” (quoting Fed. R. Civ. P.
201)).
11.
Counsel for Plaintiffs-Appellees conferred with counsel for
Defendants-Appellants regarding this Motion and the relief requested. Defendants-
Appellants oppose the relief sought by this Motion.
6 Defendants are not prejudiced by this request as they rely on Admiral
Lescher’s Declaration on appeal, they can respond to any arguments regarding the
testimony in their reply brief, and they had an opportunity to make objections and
ask questions during Admiral Lescher’s deposition. They have also submitted an
errata sheet, which is included in the appendix to this motion. See Mot. Appx. Ex. C.
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Conclusion
For the foregoing reasons, the Court should grant the motion to supplement the
record.
Respectfully submitted.
Kelly J. Shackelford
Jeffrey C. Mateer
Hiram S. Sasser, III
David J. Hacker
Michael D. Berry
Jordan E. Pratt
Danielle A. Runyan
Ryan Gardner
Holly M. Randall
FIRST LIBERTY INSTITUTE
2001 W. Plano Pkwy., Ste. 1600
Plano, Texas 75075
Tel: (972) 941-4444
/s/Heather Gebelin Hacker
Heather Gebelin Hacker
Andrew B. Stephens
HACKER STEPHENS LLP
108 Wild Basin Road South
Suite 250
Austin, Texas 78746
(512) 399-3022 (phone)
heather@hackerstephens.com
Counsel for Plaintiffs-Appellees
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Certificate of Conference
On August 15 and 16, 2022, the undersigned conferred by e-mail with Sarah
Clark, counsel for Defendants-Appellants, regarding this Motion. Defendants-
Appellants oppose the relief sought on the grounds that the deposition transcript is
not a part of the record under Federal Rule of Appellate Procedure 10 but will not
file a further response.
/s/ Heather Gebelin Hacker
HEATHER GEBELIN HACKER
Certificate of Service
On August 16, 2022, this motion was served via CM/ECF on all registered
counsel and transmitted to the Clerk of the Court. Counsel further certifies that:
(1) any required privacy redactions have been made in compliance with Fifth Circuit
Rule 25.2.13; (2) the electronic submission is an exact copy of the paper document
in compliance with Fifth Circuit Rule 25.2.1.
/s/ Heather Gebelin Hacker
HEATHER GEBELIN HACKER
Certificate of Compliance
This brief complies with: (1) the type-volume limitation of Federal Rule of
Appellate Procedure 27(d)(2)(A) because it contains 1824 words, excluding the parts
exempted by Rule 27(a)(2)(B); and (2) the typeface and type style requirements of
Rule 27(d)(1)(E) because it has been prepared in a proportionally spaced typeface
(14-point Equity) using Microsoft Word (the program used for the word count).
/s/ Heather Gebelin Hacker
HEATHER GEBELIN HACKER
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