Plaintiffs' Response to Defendants' Notice of Supplemental Factual Developments Related to Their Pending Motions to Compel — U.S. Navy SEALs 1-26 v. Austin (docketed as v. Biden) (Dkt. 211)

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Plaintiffs' Response to Defendants' Notice of Supplemental Factual Developments Related to Their Pending Motions to Compel, Document 211, filed 12/12/22 in Case No. 4:21-cv-01236-O, in the U.S. District Court for the Northern District of Texas, Fort Worth Division, brought by U.S. Navy SEALs 1-3 and other plaintiffs against Lloyd J. Austin, III, the United States Department of Defense and Carlos Del Toro. Plaintiffs argue that Defendants have not shown a particularized need for discovery from non-class representative plaintiffs and that the letter from SWCC 3's commander is information already known to Defendants. The response quotes testimony from the June 30, 2022 deposition of William K. Lescher on commanders and religious accommodation requests, and is signed /s/ Danielle A. Runyan.

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“Plaintiffs' Response to Defendants' Notice of Supplemental Factual Developments Related to Their Pending Motions to Compel — U.S. Navy SEALs 1-26 v. Austin (docketed as v. Biden) (Dkt. 211).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-txnd-355696-211-0-2c9f80c236/, SHA-256 8700b50df9fd8a3b5198fc47e3d8e0cb1c6bcebdc0699e20dadbbdb044f201d1.

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Case 4:21-cv-01236-O Document 211 Filed 12/12/22 Page 1 of 6 PageID 7274

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

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

Defendants assert that “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.” ECF No. 210 at 2. But Defendants once again fail to acknowledge that they have yet to

“demonstrate a ‘particularized need to obtain information not available from the class

representatives.’ See In re Carbon [Dioxide Indus. Antitrust Litig., 155 F.R.D. 209, 212 (M.D. Fla.

1993)]. The party seeking discovery of non-class representatives bears the burden of proof as to

why the discovery is necessary. See Egana v. Blair’s Bail Bonds, Inc., No. CV 17-5899, 2018 WL
Case 4:21-cv-01236-O Document 211 Filed 12/12/22 Page 2 of 6 PageID 7275

10593649, at *4 (E.D. La. May 29, 2018). To show a particularized need, some courts have

required defendants to prove: ‘(1) the discovery is not designed to take undue advantage of class

members or to reduce the size of the class, (2) the discovery is necessary, (3) responding to the

discovery requests would not require the assistance of counsel, and (4) the discovery seeks

information that is not already known to the defendants.’ Id. (citing Cox v. Am. Cast Iron Pipe Co.,

784 F.2d 1546, 1556 (11th Cir. 1986)), and Clark v. Universal Builders, 501 F.2d 324, 340-41 (7th

Cir. 1974)).” ECF No. 198 at 5.

Simply because SWCC 3 and other non-class representative Plaintiffs provide Class

Counsel with relevant evidence throughout the course of this litigation that is reasonably related

to Plaintiffs’ claims and worthy of notification to the arbiters of this matter does not ipso facto

create an obligation for those individuals to actively participate in the discovery process. This is

particularly true in this instance because the endorsement letter from SWCC 3’s commander is

directly related to Plaintiffs’ defense on appeal of the original preliminary injunction that was

awarded to the individual Plaintiffs, to include SWCC 3, on January 3, 2022, ECF No. 66 – an

issue that is presently under consideration by the Fifth Circuit. While Defendants inaccurately refer

to SWCC 3’s commander’s endorsement as SWCC 3’s declaration, the letter from SWCC 3’s

commander explains, in significant detail, all of the reasons why SWCC 3’s religious

accommodation request should be approved. This fact is relevant because it directly relates to the

former Vice Chief of Naval Operations Admiral William K. Lescher’s June 30, 2022 deposition

testimony where he testified that the commander’s view would be important to the decision of

whether a religious accommodation request should be granted:

Q Before the break, I had asked you questions about individualized
assessments, do you recall that, of religious and other types of exemption requests
for COVID-19 vaccine?
Case 4:21-cv-01236-O Document 211 Filed 12/12/22 Page 3 of 6 PageID 7276

A Right.

Q Do you recall that?

A Case by case, sure.

Q In your testimony, I believe that - - that you said, and correct me if
I’m wrong, that - - that the commanders would be in the best position to make those
types of risk assessments. Is that - - is that right?

A It depends on what type of risk assessment we’re talking about. So
specifically in the context of religious accommodations?

Q Yes. Or - - or in the context of a medical exemption from a vaccine
requirement.

A Right.

So the concept of a central adjudication, as the Navy has put in place
for religious accommodations, is to bring consistency to those determinations. So
the commander starts the process with the individual, and then the ultimate decision
is done with a consolidated decision authority.

Q Do you know of any religious accommodation requests that have
been recommended for approval by commanders?

A Again, not being in that process, I do not.

Q Okay. Do you know on what basis - - if you were to review a
religious accommodation request and a commander were to recommend approval
of that request, what - - what types of factors would you look to to determine
whether you would also approve it or reach a different conclusion that it should be
denied?

A So, hypothetically speaking, I always would go to the standard first;
what are the standards? What are the guidance? In this case, I believe the legal
standard is compelling interest, and is the most effective tool. In terms of weighing
a request that was favorably endorsed by the commander, I believe I would then
look at that broader standard.

The commander may have a local perspective in terms of a specific
unit. Say, for example, the commander was on a ship who was undergoing depo
maintenance, not deploying any time soon, a commander might be inclined to say
- - as the commander makes that local risk benefit judgment we talked about, that
the benefit to the individual outweighs the mission risk that the commander sees.
Case 4:21-cv-01236-O Document 211 Filed 12/12/22 Page 4 of 6 PageID 7277

At the consolidated level, it’s possible that that individual - - in my case, I would
look more broadly.

And the question would be in that - - that type of context maybe a
limited duration religious accommodation that recognizes the fact that the risk
calculus changes as that local context changes, as that ship comes out of depo
maintenance back into a more operational posture for deploying with other
countries, with other members. That might be a different calculus.

ECF No. 196-1 at 31 (Tr. 69:2-71:21).

SWCC 3’s endorsement letter from his commander fails to support Defendant’s claim that

there is a particularized need for the non-class representative Plaintiffs to participate in the

discovery process. Not only have Defendants failed to explain how the letter supports their general

conclusion that discovery from the non-class representative Plaintiffs is necessary, but the letter

falls into the category of “information that . . . is already known to the [D]efendants.” ECF No.

198 at 5. SWCC 3’s commander is within Defendants’ direct sphere of influence, qualifying the

endorsement letter as information that is already known to Defendants. It is also information that

is directly relevant to the issues raised by the Defendants on appeal to the Fifth Circuit. As such,

this evidence is by no means the smoking gun that Defendants claim. Thus, because Defendants

have still failed to satisfy their burden of proof as to why discovery from the non-class

representative Plaintiffs is necessary, and for all of the reasons Plaintiffs asserted in their responses

to Defendants’ motions to compel, ECF Nos. 198 and 206, as class members, the non-class

representative Plaintiffs “[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.’ [Earl v. Boeing Co., No. 4:19-CV-507, 2021 WL 3343232, at *2 (E.D. Tex. Aug. 2,

2021)].”
Case 4:21-cv-01236-O Document 211 Filed 12/12/22 Page 5 of 6 PageID 7278

Respectfully submitted this 12th day of December, 2022.

/s/ Danielle A. Runyan HEATHER GEBELIN HACKER
KELLY J. SHACKELFORD Texas Bar No. 24103325
Texas Bar No. 18070950 ANDREW B. STEPHENS
JEFFREY C. MATEER Texas Bar No. 24079396
Texas Bar No. 13185320 HACKER STEPHENS LLP
HIRAM S. SASSER, III 108 Wild Basin Road South, Suite 250
Texas Bar No. 24039157 Austin, Texas 78746
DAVID J. HACKER Tel.: (512) 399-3022
Texas Bar No. 24103323 heather@hackerstephens.com
MICHAEL D. BERRY andrew@hackerstephens.com
Texas Bar No. 24085835
JUSTIN BUTTERFIELD Attorneys for Plaintiffs
Texas Bar No. 24062642
DANIELLE A. RUNYAN *
New Jersey Bar No. 027232004
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
mberry@firstliberty.org
jbutterfield@firstliberty.org
drunyan@firstliberty.org
hrandall@firstliberty.org

JORDAN E. PRATT *
Washington D.C. Bar No. 90001376
FIRST LIBERTY INSTITUTE
1331 Pennsylvania Ave. NW, Ste. 1410
Washington, D.C. 20004
Tel: (202) 921-4105
jpratt@firstliberty.org

*Admitted pro hac vice.
Case 4:21-cv-01236-O Document 211 Filed 12/12/22 Page 6 of 6 PageID 7279

CERTIFICATE OF SERVICE

I hereby certify that on December 12, 2022, I electronically filed the foregoing document

through the Court’s ECF system, which will notify all counsel of record of such filing.

/s/ Danielle A. Runyan
DANIELLE A. RUNYAN

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