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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
NAVY SEALs 1-3, et al.,
Plaintiffs,
v.
LLOYD J. AUSTIN, III in his official capacity as
United States Secretary of Defense, et al.,
Defendants.
Case No. 4:21-cv-01236-O
JOINT MOTION TO TEMPORARILY STAY PROCEEDINGS OR, IN THE
ALTERNATIVE, FOR 30-DAY EXTENSION OF DEADLINES IN THE AMENDED
SCHEDULING ORDER
INTRODUCTION
The parties jointly request that the Court temporarily stay this action, other than the mootness
briefing and the scheduled mediation, or, in the alternative, extend for thirty (30) days the deadlines
set forth in the Amended Scheduling Order, ECF No. 220. Defendants have moved to dismiss this
case as moot in light of the rescission of the challenged DoD COVID-19 vaccine requirement.
Plaintiffs disagree that the case is moot. But due to the impending trial date and corresponding
discovery demands, the parties respectfully move for an order temporarily staying this action, except
for the ongoing mootness briefing and the upcoming mediation on March 23, pending the Court’s
decision on the mootness issue. In the alternative, the parties request an order extending for thirty
(30) days the deadlines set forth in the January 23, 2023 Amended Scheduling Order, ECF No. 220,
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to allow the parties to potentially resolve the case at mediation without unnecessarily expending
additional resources.1
BACKGROUND
The general factual and procedural background in this matter is set forth in the pending
briefing on mootness. ECF Nos. 221-27, 230. (Plaintiffs’ surreply in that briefing is due March 8,
2023. ECF No. 231.) As relevant here, the discovery and trial schedule is governed by the May 24,
2022 Scheduling Order, ECF No. 158, as modified by the January 30, 2023 Amended Scheduling
Order, ECF No. 220. Of note, discovery closes April 21, dispositive motions are due April 28, pretrial
disclosures are due May 10, expert objections are due May 15, other pretrial materials are due May 25,
and trial is set for the four-week docket beginning June 19. The Defendants’ experts have been
disclosed, several depositions have been noticed, and written discovery continues.
In accordance with this schedule, the parties have substantial discovery obligations in the
coming weeks, and anticipate that the Court will need to resolve several pending and anticipated
discovery disputes in the next several weeks under the current schedule. A substantial amount of
discovery and motions practice can be expected to proceed in the immediate days ahead, absent a stay
to consider the question of mootness and to identify what issues remain for which discovery might
be appropriate.
ARGUMENT
The Court should stay proceedings to promote judicial economy and to conserve the parties’
and the Court’s resources. While the parties disagree about the impact of the rescission on this case,
1 Other district courts handling class actions related to the armed services’ vaccination requirement
have stayed proceedings and discovery disputes pending resolution of mootness. Order, ECF No.
277, Col. Fin. Mgmt. Off. v. Austin, No. 8:22-cv-1275-SDM-TGW (M.D. Fla. Jan. 20, 2023; Order,
ECF No. 216, Pilot v. Austin, No. 8:22-cv-1278-SDM- TGW (M.D. Fla. Jan. 27, 2023); Notation
Order, Doster v. Kendall, 1:22-cv-00084-MWM (Mar. 3, 2022).
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resolution of the mootness issues before the Court will substantially affect future litigation, and that
resolution can then be incorporated into any required discovery, briefing and trial preparation.
This Court has the power to stay discovery because a district court “has broad discretion to
stay proceedings as an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681,
706 (1997). “The district court has a general discretionary power to stay proceedings before it in the
control of its docket and in the interests of justice.” McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir.
1982) (citing Landis v. N. Am. Co., 299 U.S. 248, 255 (1936)). District courts are to “weigh competing
interests and maintain an even balance” in deciding whether to issue a stay. Landis, 299 U.S. at 254.
Here, the parties agree that a temporary stay, or a 30-day extension of the deadlines in the
Amended Scheduling Order, is appropriate. If a stay or a 30-day extension of deadlines is not entered,
the parties anticipate anywhere from 8 to 16 depositions (including depositions of senior government
officials) and substantial other discovery will occur in the next several weeks, and the Court may need
to resolve several discovery-related motions in advance of summary judgment and trial. A brief stay
or a 30-day extension of deadlines while the Court considers mootness will not prejudice the parties,
and will conserve the resources of the parties and the Court. In addition, the parties agree to continue
with the scheduled mediation on March 23, 2023. Accordingly, the requested relief will further the
orderly course of justice and preserve the resources of the parties and the Court.
CONCLUSION
For the foregoing reasons, the Court should stay all proceedings in this matter pending the
Court’s ruling on mootness (excepting the scheduled mediation and mootness briefing), or, in the
alternative, extend for thirty (30) days the deadlines set forth in the January 30, 2023 Amended
Scheduling Order, ECF No. 220.
Dated: March 6, 2023
Respectfully submitted,
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BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
Civil Division
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Branch Director
Federal Programs Branch
/s/Amy E. Powell
ANDREW E. CARMICHAEL (VA Bar. No. 76578)
AMY E. POWELL
Senior Trial Counsel
STUART J. ROBINSON
Senior Counsel
ZACHARY A. AVALLONE
COURTNEY D. ENLOW
LIAM C. HOLLAND
CASSANDRA M. SNYDER
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (919) 856-4013
Fax: (202) 616-8470
Email: Amy.Powell@usdoj.gov
Counsel for Defendant
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