Notice of Supplemental Factual Developments Related to Their Pending Motions to Compel (Document 210)

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Defendants' Notice of Supplemental Factual Developments Related to Their Pending Motions to Compel, in the United States District Court for the Northern District of Texas, Case No. 4:21-cv-01236-O (Document 210 Filed 12/07/22). Defendants state that Plaintiff SWCC 3, who has refused to respond to any of Defendants' discovery requests on the basis that he is not serving as a class representative, continues to submit new declarations and documents in the Court of Appeals in support of the individual and class-wide preliminary injunctions. Defendants say this is relevant to their two pending motions to compel (ECF Nos. 191 & 203), and argue that named Plaintiffs like SWCC 3 are actively litigating as full parties and must comply with their discovery obligations.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

NAVY SEALs 1-26, et al.,
Plaintiffs,

v.

JOSEPH R. BIDEN, JR., in his official capacity as
President of the United States, et al.,
Defendants.

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

DEFENDANTS’ NOTICE OF SUPPLEMENTAL FACTUAL DEVELOPMENTS
RELATED TO THEIR PENDING MOTIONS TO COMPEL

Defendants respectfully provide notice that Plaintiff SWCC 3, who has refused to respond to
any of Defendants’ discovery requests on the basis that he is not serving as a class representative,
continues to submit new declarations and documents in the Court of Appeals in support of the
individual and class-wide preliminary injunctions.  Dec. 5, 2022 Rule 28(j) Ltr. H. Hacker to Fifth Cir.
(attached as Exhibit 1).  This factual development is relevant to Defendants’ two pending motions to
compel, which (among other things) seek to compel discovery responses from Plaintiffs who refuse
to comply with their discovery obligations on the basis that they are not class representatives.  See ECF
Nos. 191 & 203.  Defendants explained that they are entitled to discovery from all named Plaintiffs,
even those who are not class representatives, because “[a]ll individual Plaintiffs sought and received relief
from this Court on their own behalf, relying on their own sworn declarations.”  ECF No. 192, at 5.
These Plaintiffs “provided declarations in support of the preliminary injunctions currently on appeal”
including both the injunction covering individuals and the class-wide injunction.  Id.  And now
Plaintiffs are submitting new declarations directly to the Fifth Circuit in support of their individual
and class-wide injunctions.  See Ex. 1.
Case 4:21-cv-01236-O   Document 210   Filed 12/07/22    Page 1 of 4   PageID 7238

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The non-class-representative Plaintiffs continue to object to Defendants’ discovery requests,
arguing that they, “like the other absent class members, [are] ‘not required to do anything.  [They] may
sit back and allow the litigation to run its course, content in knowing that there are safeguards provided
for [their] protection.’”  ECF No. 198 (citation omitted).  But non-representative Plaintiffs have not
sat back and allowed the litigation to run its course.  They continue to actively engage in this litigation
by submitting “new” facts in support of their litigation positions, even as recently as two days ago.

Plaintiffs cannot have it both ways.  Plaintiffs cannot continue to submit one-sided
declarations when it supports their litigation aims but then refuse to provide information sought by
Defendants pursuant to proper discovery requests.1  Named Plaintiffs like SWCC 3 are actively
litigating these cases as full parties, and as such, they are required to comply with their discovery
obligations under Rule 26.

The letter and supplemental facts submitted to the Court of Appeals underscores why the
Court should grant Defendants’ pending motions to compel.  Defendants are entitled to reasonable
discovery from all non-class-representative Plaintiffs under the Federal Rules of Civil Procedure, the
applicable case law, and basic principles of fairness.

Dated: December 7, 2022

Respectfully submitted,

BRIAN M. BOYNTON
Principle Deputy Assistant Attorney General

ALEXANDER K. HAAS
Director, Federal Programs Branch

ANTHONY J. COPPOLINO
Deputy Director

1 The requests are relevant and proportionate to the needs of the case as described in Defendants’
papers in support of the pending motions.  See ECF Nos. 192, 199, 204, and 209
Case 4:21-cv-01236-O   Document 210   Filed 12/07/22    Page 2 of 4   PageID 7239

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/s/ Zachary A. Avallone
ANDREW E. CARMICHAEL
AMY E. POWELL
Senior Trial Counsel
STUART J. ROBINSON
Senior Counsel
ZACHARY A. AVALLONE (DC Bar 1023361)
COURTNEY D. ENLOW
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 514-2705
Fax: (202) 616-8470
Email: zachary.a.avallone@usdoj.gov

Counsel for Defendants

Case 4:21-cv-01236-O   Document 210   Filed 12/07/22    Page 3 of 4   PageID 7240

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CERTIFICATE OF SERVICE

I hereby certify that on December 7, 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/Zachary A. Avallone

ZACHARY A. AVALLONE (DC Bar 1023361)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 514-2705
Fax: (202) 616-8470
Email: zachary.a.avallone@usdoj.gov

Case 4:21-cv-01236-O   Document 210   Filed 12/07/22    Page 4 of 4   PageID 7241

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