Plaintiffs' Unopposed Motion to Amend Class Definition and Preliminarily Approve Class Settlement — Navy SEALs v. Austin

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This is Plaintiffs' Unopposed Motion to Amend the Class Definition for Settlement Purposes, to Preliminarily Approve the Class Action Settlement, to Approve the Form and Manner of Notice, and to Set a Date for a Fairness Hearing, in the Northern District of Texas, Fort Worth Division, Case 4:21-cv-01236-O. The motion states that, under the Settlement Agreement, the Navy agreed to correct the personnel records of Class Members to remove negative proceedings or adverse information related to non-compliance with the COVID-19 vaccination mandate, and to pay Class Counsel $1,500,000.00 for attorneys' fees. It also states that Defendants deny the allegations and do not oppose preliminary approval. The motion is dated May 31, 2024, and signed /s/ Heather Gebelin Hacker.

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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

PLAINTIFFS’ UNOPPOSED MOTION TO AMEND THE CLASS DEFINITION FOR
SETTLEMENT PURPOSES, TO PRELIMINARILY APPROVE THE CLASS ACTION
SETTLEMENT, TO APPROVE THE FORM AND MANNER OF NOTICE, AND TO
SET A DATE FOR A FAIRNESS HEARING

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION .......................................................................................................................... 1
SUMMARY OF THE LITIGATION ............................................................................................. 3
ARGUMENT .................................................................................................................................. 6
I.
The Court Should Amend the Class Definition to Provide Settlement Relief for Former
Class Members. ...................................................................................................................... 7
II.
The Court Should Preliminarily Approve the Proposed Settlement. ................................... 10
A.
The Class Representatives and Class Counsel Have Adequately Represented the
Class. ......................................................................................................................... 12
B.
The Proposed Settlement is the Result of Arm’s Length Negotiations Between
Experienced Counsel and There is No Fraud or Collusion. ...................................... 14
C.
The Relief Provided for the Class is Adequate. ........................................................ 15
1. The costs, risks, and delay of trial and appeal favor the Proposed Settlement. ........ 15
2. The Settlement Agreement provides an effective means of distributing relief to the
Class, payment of attorneys’ fees does not impact the Class, and there are no other
agreements here, including any that are required to be identified under Rule
23(e)(2). ................................................................................................................... 16
D.
All Class Members are Treated Equitably. ............................................................... 17
E.
The Remaining Reed Factors Warrant Preliminary Approval. ................................. 18
1. The stage of the proceedings and the amount of discovery completed support
approval.................................................................................................................... 18
2. The probability of Plaintiffs’ success on the merits and the range of possible
recovery.................................................................................................................... 19
3. The opinions of Class Counsel, Named Plaintiffs, and absent class members support
approval.................................................................................................................... 20
III. The Court Should Approve the Proposed Notices. .............................................................. 20
IV. The Court Should Set a Date for the Rule 23(e)(2) Hearing. .............................................. 22
CONCLUSION ............................................................................................................................. 23

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TABLE OF AUTHORITIES
 Cases

Al’s Pals Pet Care v. Woodforest Nat’l Bank, NA,
 No. 4:17-CV-3852, 2019 WL 387409 (S.D. Tex. Jan. 30, 2019) ............................................. 12
Amchem v. Windsor,
 521 U.S. 591 (1997) .................................................................................................................... 7
Austin v. U.S. Navy Seals,
 142 S. Ct. 1301 (2022) .............................................................................................................. 16
Berger v. Compaq Computer Corp.,
 257 F.3d 475 (5th Cir. 2001) .................................................................................................... 13
Buettgen v. Harless,
 2011 WL 1938130 (N.D. Tex. May 19, 2011) ......................................................................... 13
Cobell v. Salazar,
  No. 96-CV-1285 (D.D.C. Dec. 10, 2010) ................................................................................ 22
Cotton v. Hinton,
 559 F.2d 1326 (5th Cir. 1977) ...................................................................................... 10, 11, 19
DeHoyos v. Allstate Corp.,
 240 F.R.D. 269 (W.D. Tex. 2007) ............................................................................................ 21
Doster v. Kendall, 5
 4 F.4th 398 (6th Cir. 2022) ....................................................................................................... 16
Erica P. John Fund, Inc. v. Halliburton Co.,
 No. 3:02-cv-1152-M, 2018 WL 1942227 (N.D. Tex. Apr. 25, 2018) ................................ 14, 19
Fowler v. Birmingham News Co.,
 608 F.2d 1055 (5th Cir. 1979) .................................................................................................. 20
Gates v. Cook, 234 F.3d 221 (5th Cir. 2000) .................................................................................. 7
Hays v. Eaton Grp. Attys., LLC,
 No. 17-88-JWD-RLB, 2019 WL 427331 (M.D. La. Feb. 4, 2019) .................................... 14, 15
In re Deepwater Horizon,
 739 F.3d 790 (5th Cir. 2014) .................................................................................................... 10
In re Polaroid ERISA Litig.,
 240 F.R.D. 65 (S.D.N.Y. 2006) ................................................................................................ 13
In re Dep’t of Veterans Affs. Data Theft Litig.,
 No. 06-0506, 2007, WL 7621261 (D.D.C. Feb. 11, 2009) ....................................................... 22
James v. City of Dallas,
 254 F.3d 551 (5th Cir. 2001) .................................................................................................... 10
Jones v. Singing River Health Servs. Found.,
 865 F.3d 285 (5th Cir. 2017) .................................................................................................... 14
Kincade v. Gen. Tire & Rubber Co.,
 635 F.2d 501 (5th Cir. 1981) ...................................................................................................... 7
Klein v. O’Neal, Inc.,
 705 F. Supp. 2d 632 (N.D. Tex. 2010) ..................................................................................... 11
Manchaca v. Chater,
 927 F. Supp. 962 (E.D. Tex. 1996). .......................................................................................... 18
Martinez v. Astrue,
 No. 08-4735, 2014 WL 5408412 (N.D. Cal. Sept. 24, 2009) ................................................... 22
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McNamara v. Bre-X Minerals Ltd.,
 214 F.R.D. 424 (E.D. Tex. 2002)................................................................................................ 7
Mullen v. Treasure Chest Casino, LLC,
 186 F.3d 620 (5th Cir. 1999) ...................................................................................................... 9
Newby v. Enron Corp.,
 394 F.3d 296 (5th Cir. 2004) .................................................................................................... 10
Pettway v. Am. Cast Iron Pipe Co.,
 576 F.2d 1157 (5th Cir. 1978) ............................................................................................ 11, 12
Purdie v. Ace Cash Express, Inc.,
 No. Civ.A. 301CV1754L, 2003 WL 22976611 (N.D. Tex. Dec. 11, 2003) ............................. 11
Reed v. Gen. Motors Corp.,
 703 F.2d 170 (5th Cir. 1983) ................................................................ 11, 12, 14, 15, 18, 19, 20
Schwartz v. TCU Corp.,
 No. 3:02-CV-2243-K, 2005 WL 3148350 (N.D. Tex. Nov. 8, 2005) ...................................... 20
Union Asset Mgmt. Holding A.G. v. Dell, Inc.,
 669 F.3d 632 (5th Cir. 2012) .................................................................................................... 18
Walsh v. Great Atl. & Pac. Tea Co.,
 726 F.2d 956 (3d Cir. 1983)...................................................................................................... 21
Wilkerson v. Martin Marietta Corp.,
 17 F.R.D. 273 (D. Colo. 1997) ................................................................................................. 15
Rules

Fed. R. Civ. P. 23(a)(1) ................................................................................................................... 9
Fed. R. Civ. P. 23(a)(2) ................................................................................................................... 9
Fed. R. Civ. P. 23(a)(3) ................................................................................................................... 9
Fed. R. Civ. P. 23(a)(4) ................................................................................................................... 9
Fed. R. Civ. P. 23(c)(1)(C) ............................................................................................................. 9
Fed. R. Civ. P. 23(e)(2). ................................................................................................ 7, 11, 15, 16
Fed. R. Civ. P. 23(e)(2)(D) ........................................................................................................... 18
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INTRODUCTION
After several years of litigation, and after successfully obtaining preliminary injunctive
relief for the Class that prevented the Class Members from being involuntarily separated by the
Navy for non-compliance with the Department’s COVID-19 vaccination mandate due to their
sincerely held religious beliefs, the Named Plaintiffs have now secured a favorable settlement for
the Class Members.1
As the terms of the Settlement Agreement (Appx.0002-22) show, the Navy has agreed to:
(1) correct the personnel records of all Class Members to remove any negative proceedings or
adverse information2 related to non-compliance with the COVID-19 vaccination mandate; (2)
correct the personnel records of all current or former Class Members who were discharged solely
on the basis of non-compliance with the COVID-19 vaccination mandate to remove any indication
that the servicemember was discharged for misconduct; (3) include language in selection board
convening orders prohibiting the consideration of COVID-19 vaccination refusal where
accommodation was requested; and (4) amend its policy, changed during the mandate period,
which prohibited servicemembers from resubmitting requests for religious accommodation if there
are changes to their assignment or to relevant policies.
The Navy has also agreed to take steps that, in Plaintiffs’ view, will go toward preventing
discrimination against religious servicemembers like that alleged in this case from recurring in the

1 Defendants deny the allegations in the Compliant and the Amended Complaint and deny that the
claims alleged are amenable to class-wide treatment.  Defendants, however, do not oppose
modifying the class definition for settlement purposes, nor do Defendants oppose granting
preliminary approval of the settlement for purposes of effectuating the parties’ settlement in
accordance with the parties’ agreement.
2 Plaintiffs negotiated a broad definition of this term to include administrative separation
processing or proceedings, formal counseling, non-judicial punishment and a negative notation in
a yearly Evaluation or Fitness Report.
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future, including: (1) publicly posting a statement reaffirming the value of religious expression to
the Navy, the importance of accommodating sincere beliefs, and stating that religious
discrimination conflicts with the Navy’s core values; (2) publicly posting information informing
servicemembers of their rights related to requesting religious accommodation and the process for
doing so; and (3) creating and making available in multiple training databases a PowerPoint
presentation informing commanders, supervisors, and other decisionmakers in the religious
accommodation process of their obligations in processing those requests in accordance with the
law and the Navy’s own policies, including the required time limitations for decisions, individual
assessment of each request, and individualized justification for granting or denying a request, as
well as the importance of accommodating religious beliefs to the Navy and the dignity and respect
that must be afforded to all servicemembers, including those with sincere religious beliefs. The
Navy has also agreed to pay Class Counsel $1,500,000.00 to cover their attorneys’ fees in
prosecuting this action, and the Navy has also agreed to provide notice of this proposed settlement
to the Class Members.3
Having reached this agreement with Defendants for the benefit of the Class, Plaintiffs now
respectfully request that the Court preliminarily approve the Proposed Settlement pursuant to Fed.
R. Civ. P. 23(e). Specifically, Plaintiffs respectfully request that the Court:
(1) amend the Class Definition for settlement purposes to provide relief to servicemembers
who were originally part of the class, but withdrew their requests for religious accommodation and
were discharged for misconduct;
(2) preliminarily approve the Proposed Settlement;

3 Defendants do not concede that notice is necessary here nor that it is their obligation to carry it
out but have agreed to do so as part of the Proposed Settlement.
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(3) approve the form and manner of the proposed Notice to the Settlement Class; and
(4) set a date for a hearing under Rule 23(e)(2) to precede final approval of the Settlement
Agreement and set a deadline for Class Members to submit objections per Rule 23(e)(5).
Plaintiffs and Defendants have agreed to the form of the Preliminary Approval Order,
which is Attachment A to the attached Settlement Agreement (Appx.0024-27) and which Plaintiffs
will submit to the Court contemporaneously with the filing of this motion.
SUMMARY OF THE LITIGATION
In August 2021, the Department of Defense and the Department of the Navy announced a
mandate requiring all active-duty and reserve personnel to receive a vaccination for COVID-19,
with the deadline for compliance set as November 28, 2021 for active-duty personnel and
December 28, 2021 for reserve personnel. ECF No. 84 at 7-8.  Noncompliance with this mandate
would result in immediate adverse consequences including court-martial and involuntary
separation. ECF No. 84 at 9. On November 9, 2021, individual plaintiffs U.S. Navy SEALs 1-26,
U.S. Navy Special Warfare Combatant Craft Crewmen (SWCCs) 1-5, U.S. Navy Explosive
Ordnance Disposal Technician (EOD) 1, and U.S. Navy Divers 1-3 sued, asserting claims under
the Free Exercise Clause, the Religious Freedom Restoration Act, and other provisions of federal
law. ECF No. 1. Plaintiffs moved for a preliminary injunction based on their religious liberty
claims on November 24, 2021. The Court held a preliminary injunction hearing on December 20,
2021 and three plaintiffs (Navy SEALs 2 and 3 and EOD 1) testified. ECF No. 61, 101. This Court
granted the preliminary injunction on January 3, 2022. ECF No. 66. The order enjoined the Navy
from enforcing MANMED § 15-105(4)(n)(9); NAVADMIN 225/2, Trident Order #12; and
NAVADMIN 256/21 against plaintiffs. ECF No. 66. The order also enjoined Defendants from
taking any “adverse action against Plaintiffs on the basis of Plaintiffs’ requests for religious
accommodation.” ECF No. 66.
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On January 21, 2022, Defendants appealed the preliminary injunction order to the Fifth
Circuit, ECF No. 82, and Defendants filed a motion for partial stay of the order in this Court on
January 24, ECF No. 85. While the motion to stay was pending, Plaintiffs filed a First Amended
Class Action Complaint on January 24, 2022 (ECF No. 84), a motion to certify the class on January
25, 2022 (ECF No. 89), a Motion for Order to Show Cause (ECF No. 95), a motion for hearing on
the motion for order to show cause (ECF No. 112), and a motion for a classwide preliminary
injunction (ECF No. 104). This Court denied the motion to stay the preliminary injunction order
on February 13, 2022. ECF No. 116.
While the parties briefed Defendants’ emergency motion for a partial stay of the
preliminary injunction order at the Fifth Circuit and following emergency application for a partial
stay at the U.S. Supreme Court, the parties continued briefing the above motions pending in district
court. ECF Nos. 117, 120, 129, 131, 133, 136, 138. The Fifth Circuit denied Defendants’
emergency motion for a partial stay on February 28, 2022, ECF No. 135, CA5 ECF No. 88,4 and
on March 25, 2022, the Supreme Court (with Justices Alito, and Gorsuch dissenting, and Justice
Thomas noting that he would have denied the stay) granted a partial stay of the preliminary
injunction order only “insofar as it precludes the Navy from considering respondents vaccination
status in making deployment, assignment, and other operational decisions,” ECF No. 139.
This Court certified the class and granted the motion for classwide injunction (staying it in
part, per the Supreme Court’s order) on March 28, 2022. ECF No. 140. The Navy appealed that
order on May 27, 2022, and the consolidated interlocutory appeals proceeded in the Fifth Circuit.
ECF No. 159, CA5 ECF No. 110-120. Plaintiffs filed a motion for emergency order requiring

4 “CA5 ECF” refers to docket entries in U.S. Navy SEALs 1-26 v. Biden, Nos. 22-1077 and 22-
1534 (5th Cir. docketed Jan. 21, 2022).
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compliance with the preliminary injunction, which was denied as moot. ECF No. 169, 179. In the
meantime, Defendants answered the complaint and discovery proceeded. Plaintiffs deposed the
then-Vice Chief of Naval Operations, William Lescher, on June 30, 2022 and supplemented the
record on appeal with his deposition transcript. See ECF No. 154, 195, CA5 ECF No. 142, 151.
The Defendants filed, and the parties briefed, two motions to compel (ECF No. 191, 203). Several
Class Members also requested to be released from the class due to their wish to allow the Navy to
commence separation proceedings against them. The parties briefed that issue and Class Counsel
presented voluminous evidence of the conditions some of these servicemembers were suffering,
as well as additional harm being suffered by Class Members despite the injunction. ECF No. 175,
177, 178. The Court granted those requests and clarified that those individuals (and any others like
them) are not part of the class per the definition. ECF No. 182.
Meanwhile, the parties filed briefs in the consolidated appeal at the Fifth Circuit. CA5 ECF
No. 93, 140, 154, 213. Plaintiffs filed supplemental materials with the Fifth Circuit in September
2022, CA5 ECF No. 196, 215, and in December 2022, CA5 ECF No. 247. In late December 2022,
Defendants filed a motion to hold the appeal in abeyance in light of the James M. Inhofe National
Defense Authorization Act for Fiscal Year 2023 (FY 2023 NDAA), which rescinded the
Department of Defense COVID-19 vaccination mandate. CA5 ECF No. 251. That motion was
carried with the case, CA5 ECF No. 257, and the parties filed supplemental briefs at the Fifth
Circuit’s request addressing the FY 2023 NDAA and potential mootness. CA5 ECF No. 258, 274,
275. Plaintiffs and Defendants filed supplemental materials with the Fifth Circuit before oral
argument, CA5 ECF No. 278, 280, and oral argument was held on February 6, 2023, CA5 ECF
No. 282. The parties filed additional authorities and responses to those authorities after oral
argument. CA5 ECF No. 284, 286, 288, 290, 292, 294, 296, 298, 302. The Fifth Circuit issued its
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opinion on July 6, 2023, which held that the preliminary injunction appeals were moot because the
enjoined policies were repealed and remanded the case to this Court. CA5 ECF No. 306.
This Court also ordered briefing to be filed regarding mootness in January 2023. ECF No.
213. The Court extended the time for discovery, appointed U.S. Magistrate Judge Jeffrey Cureton
as mediator, and ordered mediation to occur by March 31, 2023. ECF No. 220. Defendants filed a
motion to dismiss for lack of jurisdiction based on mootness on February 6, 2023, and the parties
briefed the motion, including a surreply filed by Plaintiffs at the Court’s request after Defendants
filed new information. ECF No. 222, 224, 226, 228, 230, 231, 235. While the Court considered
this motion, it granted the parties’ motion to stay the proceedings. ECF No. 234.
The first mediation was held on March 23, 2023 with U.S. Magistrate Judge Cureton, but
it was unsuccessful. ECF No. 239. In response to the Fifth Circuit’s decision in July 2023, the
Court ordered additional supplemental briefing. ECF No. 248, 253, 254, 256, 257. On February
14, 2024, the Court granted in part and denied in part the motion to dismiss, finding that Plaintiffs’
claim for injunctive relief against enforcement of the mandate is moot, but finding Plaintiffs’ other
claims could proceed. ECF No. 262. The Court ordered a second mediation with U.S. Magistrate
Judge Cureton on April 3, 2024 and stayed the proceedings in this matter pending settlement
discussions. ECF No. 268, 269, 273, 275, 277. The parties attended mediation on April 3, 2024,
ECF No. 270, and while that session did not result in settlement, the parties continued negotiations
during the following weeks, coming to an agreement in principle on terms on April 30, 2024. ECF
No. 276.
ARGUMENT

Federal Rule of Civil Procedure 23(e) provides that the “claims . . . of a certified class—or
a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed,
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or compromised only with the court’s approval.” Approval of a settlement in a class action
“necessarily requires the Court to determine if the proposed class is a proper class for settlement
purposes.” McNamara v. Bre-X Minerals Ltd., 214 F.R.D. 424, 426-27 (E.D. Tex. 2002). Approval
then follows a two-step process. First, the Court makes a “preliminary fairness evaluation of the
proposed terms of settlement submitted by counsel.” Id. at 426. Second, “if the Court determines
that the settlement is fair, the Court directs that notice pursuant to Rule 23(e) be given to the class
members of a formal fairness hearing, at which arguments and evidence may be presented in
support of and in opposition to the settlement.” Id.; see also Fed. R. Civ. P. 23(e)(2). While
members of a Rule 23(b)(2) class do not have the right to opt out of a settlement, they have the
right to be heard and thus may file objections which may be heard at the 23(e)(2) hearing. Gates
v. Cook, 234 F.3d 221, 229 (5th Cir. 2000); Kincade v. Gen. Tire & Rubber Co., 635 F.2d 501,
506 (5th Cir. 1981); Fed. R. Civ. P. 23(e)(2), (5).
I.
The Court Should Amend the Class Definition to Provide Settlement Relief for
Former Class Members.

A settlement class must meet the requirements for class certification. Amchem v. Windsor,
521 U.S. 591, 620 (1997). Here, the Court has already determined that the Rule 23(a) and Rule
23(b)(2) requirements are satisfied, and certified the following class:
[A]ll members of the United States Navy who are subject to the Navy’s COVID-
19 Vaccine Mandate and who have submitted a Religious Accommodation request
concerning the Navy’s COVID-19 Vaccine Mandate.
ECF No. 89; ECF No. 140 at 6-18.5 The Court noted that the class members “are those who seek
to remain in the Navy and refuse to compromise their religious beliefs (i.e., continue to forgo the
vaccine).” ECF No. 140 at 15. A few servicemembers who submitted requests for religious

5 The Court also certified two subclasses in addition to the “Navy Class” defined above, see ECF
No. 140 at 7, but because the settlement does not distinguish between Class Members or Subclass
members, only the “Navy Class” definition is relevant here.
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accommodation regarding the COVID-19 vaccination mandate contacted the Court and Class
Counsel requesting to be released from the Class so they could be discharged by the Navy because
of various negative personal consequences resulting from not being able to execute orders or
separate from the Navy, see ECF Nos. 162, 163, 180. The Navy was not permitting such
servicemembers to separate because of the injunction. See ECF No. 177. In response, the Court
noted that the servicemembers were no longer Class Members because they did not “seek to remain
in the Navy,” and that servicemembers “may pursue separation without permission from the Court,
because under the existing class certification language, those who ‘choose to get vaccinated,
withdraw their religious accommodation requests, voluntarily separate, or proceed with retirement
plans’ are no longer class members.” ECF No. 182 at 2 (quoting ECF No. 140 at 15). Thus, former
servicemembers like these individuals are not part of the Class. But because they withdrew their
requests for religious accommodation or accepted separation, such servicemembers were noted as
being separated for “misconduct” and were listed as ineligible to reenlist as a result. The Proposed
Settlement here aims to correct that, and for such servicemembers, the Navy has agreed to correct
their personnel records to change their reenlistment codes and remove the designation of
“misconduct.” Appx.0009. To allow these servicemembers to enjoy this benefit, the Class
Definition should be modified as below:
All members of the United States Navy who were subject to the Navy’s COVID-
19 Vaccine Mandate and who submitted a Religious Accommodation request
concerning the Navy’s COVID-19 Vaccine Mandate or who submitted a Religious
Accommodation request concerning the Navy’s COVID-19 Vaccine Mandate and
were separated from the Navy, even if the request was withdrawn.6

6 The current Class Definition uses the present tense when referring to the COVID-19 vaccination
mandate. As the Court is aware, the mandate was repealed. The Class Definition still meets the
requirements of Rule 23 because the class members were ascertainable per the definition at the
time of certification because the mandate was still in effect at that time and all Class Members
were subject to it. See Frey v. First Nat’l Bank Sw., 602 F. App’x 164, 168 (5th Cir. 2015). But

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The Court may alter or amend the order granting class certification before final judgment,
including for settlement purposes. See Fed. R. Civ. P. 23(c)(1)(C). Courts have “great discretion
in certifying and managing a class action.” Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620,
624 (5th Cir. 1999). And as this Court has already recognized, it “has discretion to modify . . . an
approved class.” ECF No. 140 at 3.
This amended Class Definition still meets the requirements of Rule 23(a). The Class is still
sufficiently numerous, as the amended Class Definition would only add Class Members. Fed. R.
Civ. P. 23(a)(1); ECF No. 140 at 7-8. There are questions of law or fact common to the Class as
now defined, as the individuals who were separated suffered the same type of religious
discrimination alleged by the Named Plaintiffs. Fed. R. Civ. P. 23(a)(2); ECF No. 140 at 8-12. The
claims of the Named Plaintiffs for religious discrimination are also typical of the claims of the
Amended Class for similar reasons. Fed. R. Civ. P. 23(a)(3); ECF No. 140 at 12-14. And the
Named Plaintiffs and Class Counsel have already demonstrated that they have fairly and
adequately represented the interests of this Class by litigating the case for nearly three years and
successfully obtaining injunctive relief and a favorable proposed settlement. Fed. R. Civ. P.
23(a)(4); ECF No. 140 at 14-16. The basis for certification under Rule 23(b)(2) equally applies to
the additional proposed Class Members, as they were similarly subject to the mandate despite their

the Court should grant Plaintiffs’ request that the Court modify the Class Definition as per the
above for settlement purposes, consistent with the parties’ settlement agreement definition, which
includes changing “are” to “were.” See Fed. R. Civ. P. 23(c)(1)(C); In re Monumental Life Ins.,
365 F.3d 408, 414 (5th Cir. 2004) (“[H]olding plaintiffs to the plain language of their definition
would ignore the ongoing refinement and give-and-take inherent in class action litigation,
particularly in the formation of a workable class definition. District courts are permitted to limit or
modify class definitions to provide the necessary precision.”). In addition to furthering the parties’
settlement, switching to past tense will make it more clear to Class Members, who will receive
notice of this Proposed Settlement, as to who is in the Class. As noted above, Defendants do not
object to modifying the class definition for settlement purposes.
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sincere religious beliefs and despite secular exemptions being granted, and were subject to the
flawed, “sham” process for evaluation of their requests. ECF No. 140 at 16-17. That the additional
proposed Class Members suffered the additional harm of separation does not defeat commonality
or typicality. In re Deepwater Horizon, 739 F.3d 790, 810–11 (5th Cir. 2014); James v. City of
Dallas, 254 F.3d 551, 571 (5th Cir. 2001). Furthermore, the additional proposed Class Members
are also ascertainable because “Defendants maintain records of those who have submitted religious
accommodation requests” and separation is noted in servicemembers’ personnel records. ECF No.
140 at 6-7. As Defendants have agreed to provide relief to those proposed Class Members, they do
not dispute that they know how to identify those individuals.
Because the proposed amended Class Definition meets the requirements of Rule 23,
because the Court has discretion to modify the Definition, and because there is good cause for the
modification as it will allow servicemembers originally part of the Class to benefit from this
settlement, the Court should modify the Class Definition as set forth above.
II.
The Court Should Preliminarily Approve the Proposed Settlement.
Federal Rule of Civil Procedure 23(e)(1)(B) provides that preliminary approval of a
proposed settlement should be granted where “the parties show[] that the Court will likely be able
to: (i) approve the proposal under Rule 23(e)(2); and (ii) certify the class for purposes of judgment
on the proposal.”
 “The gravamen of an approvable proposed settlement is that it be fair, adequate, and
reasonable and is not the product of collusion between the parties.” Newby v. Enron Corp., 394
F.3d 296, 301 (5th Cir. 2004) (citation omitted); see also Cotton v. Hinton, 559 F.2d 1326, 1330
(5th Cir. 1977). In exercising its discretion to approve a settlement, the Court must “ensure that
the settlement is in the interests of the class, does not unfairly impinge on the rights and interests
of dissenters, and does not merely mantle oppression.” Pettway v. Am. Cast Iron Pipe Co., 576
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F.2d 1157, 1214 (5th Cir. 1978); see also Reed v. Gen. Motors Corp., 703 F.2d 170, 172 (5th Cir.
1983).
Under Rule 23(e)(2), which governs final approval, if a settlement proposal would bind
class members, the Court may finally approve it only after finding that it is “fair, reasonable, and
adequate.” Fed. R. Civ. P. 23(e)(2); Klein v. O’Neal, Inc., 705 F. Supp. 2d 632, 649 (N.D. Tex.
2010). In making this determination, Rule 23(e)(2) requires that the Court consider whether:
(A) the class representatives and class counsel have adequately represented
the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief
to the class, including the method of processing class-member
claims;
(iii) the terms of any proposed award of attorney’s fees, including
timing of payment; and
(iv) any agreement required to be identified under Rule 23(e)(3); and
(D) the proposal treats class members equitably relative to each other.
Factors (A) and (B) “identify matters . . . described as procedural concerns, looking to the conduct
of the litigation and of the negotiations leading up to the proposed settlement,” while factors (C)
and (D) “focus on . . . a substantive review of the terms of the proposed settlement” (i.e., “[t]he
relief that the settlement is expected to provide to class members”). Advisory Committee Notes to
2018 Amendments (324 F.R.D. 904, at 919). And “[w]hen considering [the] factors, the court
should keep in mind the strong presumption in favor of finding a settlement fair.” Purdie v. Ace
Cash Express, Inc., No. Civ.A. 301CV1754L, 2003 WL 22976611, at *4 (N.D. Tex. Dec. 11,
2003). “Particularly in class action suits, there is an overriding public interest in favor of
settlement.” Cotton, 559 F.2d at 1331. In the context of a class action settlement, “compromise is
the essence of a settlement, and the settlement need not accord the plaintiff class every benefit that
might have been gained after full trial.” Pettway, 576 F.2d at 1214 n.69.
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These factors are not exclusive, however. The four factors set forth in Rule 23(e)(2) were
not intended to “displace” any factor previously adopted by the courts, but “rather to focus the
court and the lawyers on the core concerns of procedure and substance that should guide the
decision whether to approve the proposal.” Advisory Committee Notes to 2018 Amendments (324
F.R.D. 904, at 919); see also Reed, 703 F.2d 170, 172 (5th Cir. 1983) (establishing Fifth Circuit
factors used to evaluate the propriety of a class action settlement).7 Thus, the traditional Fifth
Circuit factors (some of which overlap with Rule 23(e)(2)) are still relevant. See, e.g., Al’s Pals
Pet Care v. Woodforest Nat’l Bank, NA, No. 4:17-CV-3852, 2019 WL 387409, at *3 (S.D. Tex.
Jan. 30, 2019) (considering “the criteria set forth in Fed. R. Civ. P. 23 (e)(2) as well as the Fifth
Circuit’s Reed factors”). As discussed below, application of each of the four factors specified in
Rule 23(e)(2), and the relevant, non-duplicative Reed factors, demonstrates that the Proposed
Settlement merits both preliminary and final approval.
A. The Class Representatives and Class Counsel Have Adequately Represented the
Class.
Rule 23(e)(2)(A) requires the Court to consider whether the “class representatives and class
counsel have adequately represented the class.” Here, the Named Plaintiffs and Class Counsel have
adequately represented the Class by zealously advocating on their behalf for nearly three years.
Three of the Named Plaintiffs testified at the preliminary injunction hearing and attended
mediation, and all the Named Plaintiffs responded to written discovery (including document
requests and interrogatories), and regularly consulted with Class Counsel as to strategy and case

7 The Reed factors are: “(1) the existence of fraud or collusion behind the settlement; (2) the
complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the
amount of discovery completed; (4) the probability of plaintiffs’ success on the merits; (5) the
range of possible recovery; and (6) the opinions of the class counsel, class representatives, and
absent class members.” 703 F.2d at 172.
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developments. See Appx.0039; see also Berger v. Compaq Computer Corp., 257 F.3d 475, 483
(5th Cir. 2001) (adequate class representatives are “informed and can demonstrate they are
directing the litigation.”); Buettgen v. Harless, 2011 WL 1938130, at *5 (N.D. Tex. May 19, 2011)
(proposed class representatives adequate because they were informed of the progress of the case;
were producing documents; and one of two proposed representatives had been deposed). The
Named Plaintiffs’ claims are typical of, and coextensive with, the claims of the Class, and they
have no antagonistic interests. See In re Polaroid ERISA Litig., 240 F.R.D. 65, 77 (S.D.N.Y. 2006)
(“Where plaintiffs and class members share the common goal of maximizing recovery, there is no
conflict of interest.”)
The Named Plaintiffs retained Class Counsel, who is knowledgeable in both class action
litigation and constitutional litigation. Before reaching the Proposed Settlement, Class Counsel
vigorously prosecuted the Plaintiffs’—and then the Class Members’—claims, spending thousands
of hours working on the litigation. Appx.0040. Class Counsel secured preliminary injunctive relief
for both individual plaintiffs and then for the Class, defended that injunctive relief through
emergency stay proceedings through the Fifth Circuit and the U.S. Supreme Court, and defended
that injunctive relief in the Fifth Circuit. At oral argument in the Fifth Circuit and in post-argument
briefing, Class Counsel pointed out Navy policies preliminarily enjoined by the Court that were
still in effect, which the Navy subsequently repealed. Class Counsel also defeated Defendants’
motion to dismiss and motion to dismiss as moot. Class Counsel engaged in discovery on behalf
of the Class, deposed the then-Vice Chief of Naval Operations William Lescher, and filed motions
seeking relief on behalf of Class Members who alleged that the Navy was not complying with the
preliminary injunction. Class Counsel also participated in settlement negotiations with Defendants
leading up to and following the first mediation in March 2023, and leading up to and following the
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second mediation in April 2024. Those negotiations involved preparing mediation statements,
attorneys’ fees records, and drafting multiple versions of proposed documents. This case was
arguably one of the most successful cases against the military regarding the COVID-19 vaccination
mandate, and this case was the only one not dismissed as moot after repeal of the mandate because
of the uniquely pleaded claims here. Dkt. 262. The Named Plaintiffs and Class Counsel, therefore,
adequately represented the Settlement Class. See Hays v. Eaton Grp. Attys., LLC, No. 17-88-JWD-
RLB, 2019 WL 427331, at *9 (M.D. La. Feb. 4, 2019) (representation adequate where proposed
settlement was “negotiated by experienced, informed counsel . . . with substantial experience in
litigating complex class actions” and where lead plaintiff was “familiar with the factual and legal
issues”).
B. The Proposed Settlement is the Result of Arm’s Length Negotiations Between
Experienced Counsel and There is No Fraud or Collusion.
Rule 23(e)(2)(B) evaluates whether the proposed settlement “was negotiated at arm’s
length.” Similarly, one of the Reed factors examines whether there was “fraud or collusion behind
the settlement.” Reed, 703 F.2d at 172. In conducting this analysis, courts recognize that “[t]he
involvement of ‘an experienced and well-known’ mediator ‘is also a strong indicator of procedural
fairness.’” Jones v. Singing River Health Servs. Found., 865 F.3d 285, 295 (5th Cir. 2017); Erica
P. John Fund, Inc. v. Halliburton Co., No. 3:02-cv-1152-M, 2018 WL 1942227, at *4 (N.D. Tex.
Apr. 25, 2018) (approving settlement that was “obtained through formal mediation before [an
experienced mediator], which strongly suggests the settlement was not the result of improper
dealings.”). Here, U.S. Magistrate Judge Jeffrey Cureton, an experienced attorney, magistrate
judge, and mediator, conducted both mediation sessions and stayed in touch with the parties after
those sessions, facilitating further email and telephone discussions. Counsel for both parties also
diligently prepared for the mediation sessions and continued research after those sessions to allow
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them to make informed decisions about the strength and weaknesses of their respective cases.
Appx.0039. “The completeness and intensity of the mediation process, coupled with the quality
and reputations of the Mediators, demonstrate a commitment by the Parties to a reasoned process
for conflict resolution that took into account the strengths and weaknesses of their respective cases
and the inherent vagaries of litigation.” Wilkerson v. Martin Marietta Corp., 17 F.R.D. 273, 285
(D. Colo. 1997). The Settlement Agreement here is thus the product of mutual, zealous advocacy
with the involvement of a reputable mediator. The second factor therefore supports approval.
C. The Relief Provided for the Class is Adequate.

1. The costs, risks, and delay of trial and appeal favor the Proposed Settlement.

Under Rule 23(e)(2)(C), when evaluating the fairness, reasonableness, and adequacy of a
settlement, the Court should consider whether “the relief provided for the class is adequate, taking
into account . . . the costs, risks, and delay of trial and appeal” along with other relevant factors.
Fed. R. Civ. P. 23(e)(2)(C). Similarly, the second Reed factor instructs the Court to consider “the
complexity, expense, and likely duration of the litigation.” Reed, 703 F.2d at 172. This factor is
satisfied where the settlement provides significant immediate relief for the class and where “a trial
would be lengthy, burdensome, [] would consume tremendous time and resources of the Parties
and the Court [and] any judgment would likely be appealed.” Hays, 2019 WL 427331, at *10. But
“[e]ven where the claims are not particularly complex, approval of settlement is favored where
settling avoids the risks and burdens of potentially protracted litigation.” Id.
To proceed to trial in this case, the parties would have to finish discovery, and some of the
discovery that had already been completed would have to be redone due to the significant factual
developments in the case and shifting focus of relief since discovery first commenced. It is Class
Counsel’s understanding that Defendants intended to file a motion for summary judgment, which
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would require briefing, and then assuming the summary judgment motion(s) did not resolve the
case, the parties would have to proceed through pretrial and trial proceedings.  Further, given that
Defendants previously sought emergency relief from the U.S. Supreme Court regarding this
Court’s preliminary injunction, and obtained a partial stay in so far as it “precludes the Navy from
considering respondents’ vaccination status in making deployment, assignment, and other
operational decisions” that continues until disposition of a petition for a writ of certiorari to the
Supreme Court.  Austin v. U.S. Navy Seals, 142 S. Ct. 1301, 1302 (2022).  And the Government
recently petitioned the Supreme Court for a writ of certiorari in Doster v. Kendall, 54 F.4th 398,
437-48 (6th Cir. 2022), cert. granted, judgment vacated as moot, 144 S. Ct. 481 (2023).
Defendants’ counsel stated that it was likely the Government would similarly seek appellate review
of any decision which it believes restricts the freedom to make deployment and assignment
decisions. Appx.0040. Accordingly, it could be years before the case could be finally resolved and
the Class Members could obtain relief. This factor therefore favors approval.
2. The Settlement Agreement provides an effective means of distributing relief to
the Class, payment of attorneys’ fees does not impact the Class, and there are no
other agreements here, including any that are required to be identified under
Rule 23(e)(2).
Under Rule 23(e)(2)(C), courts should consider whether the relief provided is adequate in
light of (1) “the effectiveness of any proposed method of distributing relief to the class, including
the method of processing class-member claims,” (2) “the terms of any proposed award of
attorneys’ fees, including timing of payment,” and (3) “any agreement required to be identified
under Rule 23(e)(2).” Fed. R. Civ. P. 23(e)(2)(C)(ii)-(iv). All three factors support approval.
a.
Because there is no monetary relief at issue in this case, no specific relief will be
“distributed to the class” other than the Navy’s correction of personnel files as indicated in
paragraphs 17 and 18 of the Settlement Agreement. Appx.0009. The Navy is the only entity that
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has access to these files and represents that it can make the corrections needed, so it follows that
this delivery of relief will be effective enough to satisfy the Rule. The other Class relief will be
more public in nature and does not apply to any specific person, so that relief does not implicate
the concerns in Rule 23(e)(2)(C)(ii).
b.
The Settlement Agreement provides that Defendants will pay Class Counsel $1.5
million in attorneys’ fees. Unlike other class actions, where Class Counsel’s fees are often a
percentage of the overall monetary recovery for the Class, the attorneys’ fees here do not reduce
any relief the Class is entitled to. Moreover, the agreed-upon amount of fees is reasonable. The
Defendants recently agreed to pay $1.8 million to counsel representing the Marine Corps class in
similar litigation in the Middle District of Florida after the case was dismissed as moot.8 And given
that Class Counsel collectively spent nearly 3,400 hours on this litigation, that payment is more
than reasonable. Appx.0040. The Settlement Agreement provides that Defendants will make this
fee payment to Class Counsel with 60 days of the effectiveness of the agreement, which does not
impact the Class. Appx.0016.
c.
Rule 23(e)(3) requires that “parties seeking approval [of a class settlement] must
file a statement identifying any agreement made in connection with the proposal.” The parties here
have no other agreements other than the Settlement Agreement, Appx.0040, so this factor also
does not impact the Class.
D. All Class Members are Treated Equitably.
Rule 23(e)(2)(D) requires courts to evaluate whether settlement treats class members
equitably relative to one another. Fed. R. Civ. P. 23(e)(2)(D). The Proposed Settlement seeks to

8 See Meghann Myers, DoD settles COVID vaccine mandate lawsuits for $1.8 million, Military
Times (Oct. 9, 2023), https://www.militarytimes.com/news/your-military/2023/10/09/dod-settles-
covid-vaccine-mandate-lawsuits-for-18-million.
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provide general benefits to every Class Member through the policy change and public notice
provisions, and the provisions addressing corrections to personnel files are aimed at rectifying
harm that some, but not all, Class Members suffered. The Settlement Agreement does not give
preferential treatment or any award to any particular Class Members, including the Named
Plaintiffs.
E. The Remaining Reed Factors Warrant Preliminary Approval.
1.  The stage of the proceedings and the amount of discovery completed support
approval.
The third Reed factor is “the stage of the proceedings and the amount of discovery
completed.” Reed, 703 F.2d at 172. Under this factor, the inquiry is whether the plaintiff has a
sufficient understanding of the case to gauge the strengths and weaknesses of the claims and the
adequacy of the settlement. Cotton, 559 F.2d at 1332. As discussed above, Class Counsel engaged
in substantial litigation, obtained Navy documents through discovery and a whistleblower, and
deposed the second-highest ranking uniformed officer in the Navy. Thus, by the time settlement
discussions proved fruitful, the Named Plaintiffs and Class Counsel had a “full understanding of
the legal and factual issues surrounding this case.” Manchaca v. Chater, 927 F. Supp. 962, 967
(E.D. Tex. 1996). Even in cases where “very little formal discovery was conducted” and where
“there is no voluminous record in the case,” the Fifth Circuit has held that “the lack of such does
not compel the conclusion that insufficient discovery was conducted.” Id.; see also Union Asset
Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th Cir. 2012) (affirming approval of class
action settlement where there had been no “formal discovery” but the settlement compared
favorable to similar settlements, and the parties were “well informed about the merits of their
respective positions”).
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2. The probability of Plaintiffs’ success on the merits and the range of possible
recovery.
“A district court faced with a proposed settlement must compare its terms with the likely
rewards the class would have received following a successful trial of the case.” Reed, 703 F.2d at
172. Courts also consider the range of possible recovery in the action. Id. “In ascertaining whether
a settlement falls within the range of possible approval, courts will compare the settlement amount
to the relief the class could expect to recover at trial, i.e., the strength of the plaintiff’s case.” Erica
P. John Fund, Inc. v. Halliburton Co., No. 3:02-CV-1152-M, 2018 WL 1942227, at *5 (N.D. Tex.
Apr. 25, 2018). But courts should avoid essentially trying cases in evaluating the propriety of a
settlement because “the very purpose of the compromise is to avoid the delay and expense of such
a trial.” Reed, 703 F.2d at 172. And “the trial court should not make a proponent of a proposed
settlement justify each term of settlement against a hypothetical or speculative measure of what
concessions might have been gained.” Cotton, 559 F.2d at 1330.
Plaintiffs believe that they would be successful if this case were litigated through trial to
final judgment and on appeal. Plaintiffs also believe that they could have obtained relief from the
Court which would be at least similar to, and perhaps stronger than, what the Navy agreed to do
in the Proposed Settlement. But that would have come at a significant cost—not only a litigation
cost borne by Class Counsel, but also a cost to the Class because of the lengthy delay in receiving
relief. If personnel records and selection board convening orders were not corrected for years,
Class Members would suffer continued lost employment and promotion opportunities in the
meantime. Even if Plaintiffs could have ultimately obtained stronger relief if the litigation
continued, the Proposed Settlement provides substantial relief for the Class without the cost of
continued harm while waiting for final judgment, so it warrants approval.
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3. The opinions of Class Counsel, Named Plaintiffs, and absent class members
support approval.
Finally, courts consider “the opinions of the class counsel, class representatives, and absent
class members” in determining the propriety of a settlement. Reed, 703 F.2d at 172. “[W]here the
parties have conducted an extensive investigation, engaged in significant fact-finding and Class
Counsel is experienced in class-action litigation, courts typically defer to the judgment of
experienced trial counsel who has evaluated the strength of his case.” Schwartz v. TCU Corp., No.
3:02-CV-2243-K, 2005 WL 3148350, at *21 (N.D. Tex. Nov. 8, 2005).
Here, Class Counsel are experienced, are well-informed of the strengths and weaknesses
of the case, and believe the Proposed Settlement merits approval. See Appx.0040. The Named
Plaintiffs and the Individual Plaintiffs also support the Proposed Settlement. Accordingly, this
factor favors approval.
*  *  *
For all the foregoing reasons, the Proposed Settlement is “fair, reasonable, and adequate”
and warrants this Court’s approval under Rule 23(e)(1) and (2).
III.
The Court Should Approve the Proposed Notices.
Rule 23(e)(1) states that “[t]he court must direct notice in a reasonable manner to all class
members who would be bound by the [settlement] proposal.” Subject to the requirements of due
process, notice under Rule 23(e)(1) gives the Court discretion over the form and manner of notice.
See Fowler v. Birmingham News Co., 608 F.2d 1055, 1059 (5th Cir. 1979). “[A] simple summary
of the proposed settlement is particularly appropriate in a rule 23(b)(2) case such as this. . . . ‘[T]he
form of notice settlement of a Rule . . . 23(b)(2) class action need only be such as to bring the
proposed settlement to the attention of representative class members who may alert the court to
inadequacies in representation, or conflicts of interest among subclasses, which might bear upon
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the fairness of the settlement.” DeHoyos v. Allstate Corp., 240 F.R.D. 269, 301–02 (W.D. Tex.
2007) (quoting Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 963 (3d Cir. 1983)). This is
because “the interests in a rule 23(b)(2) class action for declaratory and injunctive relief, are related
primarily, if not exclusively, to adequacy of representation, since a judgment in the action would
establish the obligations of defendant . . . to the entire class.” Id. (citation omitted). Thus, notice is
sufficient if it contains “sufficient information to allow individuals to determine whether or not
they are class members and to evaluate the benefits of the settlement.” Id. at 298. Further, the
purpose of notice for a 23(b)(2) class is not so that class members can choose to opt-out, it is to
ensure that class members may object to the proposed settlement and be heard at a fairness hearing.
Here, the parties propose that Defendants give notice to Class Members via the Notice of
Proposed Class Action Settlement and Hearing to Approve Proposed Settlement attached to the
Settlement Agreement as Attachment B. The notice will also include a full copy of the Settlement
Agreement and the date of the fairness hearing. Appx.0014, 0031.
As for the method of notice, the parties propose that Defendants send the notice by email
to the Class Members’ navy.mil email addresses, or if the Class Member is no longer part of the
Navy, to their last known mailing address. Appx.0014, 0025. In large Rule 23(b)(2) classes, courts
have permitted notice by publication, as “[r]eceipt of actual notice by all class members is required
neither by Rule 23 nor the Constitution,” Id. at 296; see also id. at 297 (citing cases). But “sending
notice by mail is preferred when all or most of the class members can be identified.” Id. at 296.
Because Defendants can identify all Class Members, and also possess those Class Members’ email
and mailing addresses, this method of notice is likely to reach all, if not most, of the Class
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22
Members. That more than satisfies notice requirements here.9
IV.
The Court Should Set a Date for the Rule 23(e)(2) Hearing.
Under Rule 23(e)(2), the Court may finally approve a class action settlement “only after a
hearing and only on finding that it is fair, reasonable, and adequate.” Thus, the Court should set a
hearing on a date which allows sufficient time for the required notices to be sent and received by
the Class, and for any Class Member objections to be submitted. If the Court is inclined to grant
the motion to preliminarily approve the settlement, the parties propose the following schedule:
July 1, 2024
Defendants send notice of the preliminarily
approved settlement to all Class Members
August 13, 2024
Deadline for submission of objections by
Class Members
August 27, 2024
Rule 23(e)(2) Hearing

If that is not possible, the parties request that the Court set a date for the Rule 23(e)(2) hearing that
is no sooner than 60 days after preliminary approval, if it is granted.

9 Defendants’ position is that notice under the Class Action Fairness Act, 28 U.S.C. § 1715(d),
does not apply in cases where the federal government is the sole defendant. See 28 U.S.C § 1715(f)
(“Nothing in this section shall be construed to expand the authority of, or impose any obligations,
duties, or responsibilities upon, Federal or State officials.”); see also Preliminary Approval Order,
In re Dep’t of Veterans Affs. Data Theft Litig., No. 06-0506, 2007, WL 7621261 (D.D.C. Feb. 11,
2009), ECF No. 54, ¶ 7 (“In light of the purposes of the Act, the Court finds that notification to
state officials is unnecessary.”); Order Denying Mtn. to Intervene, Finally Approving Settlement
of Class Action, and Directing Entry of Final Judgment, Martinez v. Astrue, No. 08-4735, 2014
WL 5408412 (N.D. Cal. Sept. 24, 2009), ECF No. 183, ¶ 6 (“[T]he notice provisions in § 1715(b)
do not apply to the defendant in this case because the Defendant is a Federal official,”); Preliminary
Approval of Settlement, Cobell v. Salazar, No. 96-CV-1285 (D.D.C. Dec. 10, 2010) Doc. No.
3660 at 36-37. Defendants’ counsel states that the relevant federal officials have been notified
already.
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23
CONCLUSION

For the foregoing reasons, this Court should grant the Motion, amend the Class Definition,
preliminarily approve the Proposed Settlement, approve the proposed Notice, and set a date for the
Rule 23(e)(2) hearing.
Respectfully submitted this 31st day of May, 2024.

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
DANIELLE A. RUNYAN
  Texas Bar No: 24134548
HOLLY M. RANDALL
   Texas Bar No. 24128002
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
drunyan@firstliberty.org
hrandall@firstliberty.org

/s/ Heather Gebelin Hacker
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 31, 2024, I electronically filed the foregoing document through
the Court’s ECF system and will serve a copy on each of the Defendants according to the Federal
Rules of Civil Procedure.

/s/ Heather Gebelin Hacker

HEATHER GEBELIN HACKER

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