1 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

ERIC JACKSON, ALARIC STONE, and )

MICHAEL MARCENELLE, on behalf of ) 

themselves and all others similarly situated, ) 

 ) Case No. 4:22-cv-00825-P 

 Plaintiffs, ) 

v. ) 

 )

ALEJANDRO N. MAYORKAS, in his official ) 

capacity as Secretary of Homeland Security, et al., ) 

 ) 

 Defendants. ) 

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ NOTICE OF 

LEGISLATIVE DEVELOPMENTS 

In its Notice of Legislative Developments (ECF No 53), the Coast Guard 

mischaracterizes the 2023 National Defense Authorization Act (NDAA) as something that will 

necessarily significantly impact Plaintiffs’ claims. ECF No. 53 at 1-2. As Plaintiffs previously 

discussed (ECF No. 50 at 2 n.1; ECF No. 52 at 2) and as the Coast Guard does not dispute (ECF 

No. 53 at 2), the NDAA directs rescission of only the Department of Defense’s COVID-19 

vaccine mandate; the NDAA makes no mention of and therefore does not directly affect the 

Coast Guard’s separate, independent, later-issued mandate. Contrary to the Coast Guard’s 

assertion (ECF No. 53 at 2), it is not “misleading” to point out that the NDAA vaccine-mandaterescission provision does not apply to the Coast Guard. It is a plain, undisputable fact. 

The Department of Justice vaguely suggests that the Coast Guard “intends” to remain 

“aligned with the Department of Defense regarding COVID-19 vaccination policy” (ECF No. 53 

at 2), but it offers no citation to any such legal requirement, no statement from Coast Guard 

leadership promising any change to vaccination policy let alone the scope of such a change, and 

no indication of when such a change may occur. Even assuming the Coast Guard is signaling an 

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intention to voluntarily cease the vaccine mandate at some point and in some manner, class-wide 

injunctive relief remains necessary. The requested injunction would provide urgently-needed 

protections beyond what the NDAA provides—even if the NDAA did somehow apply here. For 

example, as Plaintiffs discussed previously (ECF No. 50 at 2 n.1), nothing in the NDAA restricts 

the Coast Guard’s complete discretion to punish prior noncompliance with the vaccine 

mandate, including by denying reenlistment and promotion which lead to discharge, and which 

multiple service members have faced and currently face. The Coast Guard conspicuously 

offers no response to this key fact. See also this Court’s recent decision in Schelske v. Austin

(ECF No. 52-1 at 3-4). 

The Coast Guard’s suggestion that it has “paused separations due to vaccination until 

January 15, 2023” is disingenuous at best; in a December 8, 2022 email to Plaintiffs’ counsel, the 

Coast Guard made clear (again) that it will not agree to provide relief as to all putative class 

members: “As before, it will not act with respect to everyone in the class. If you know of any 

individual in the class who has a discharge date before January 15, 2023, and who has authorized 

you to request an extension of that discharge date on their behalf, you may bring that person to 

our attention.” Because of the Coast Guard’s refusal to provide relief with respect to everyone in 

the class, Plaintiffs’ counsel have had to bring specific service members to the Coast Guard’s 

attention if Plaintiffs’ counsel happen to be aware of their specific situations. On December 15, 

2022, Plaintiffs’ counsel brought to the Coast Guard’s attention yet another putative class 

member who the Coast Guard was attempting to discharge. On December 16, the Coast Guard 

agreed to postpone his discharge to January 15. But this putative class member obtained relief 

only because he connected with Plaintiffs’ counsel. Though Plaintiffs’ counsel have been able to 

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obtain temporary relief for a number of service members,1 it is highly unlikely all 1,200 class 

members know that they need to contact Plaintiffs’ counsel if in need. While the Coast Guard 

itself has essentially designated Plaintiffs’ counsel to represent putative class members in 

negotiating temporary relief for them (“you may bring that person to our attention”), the Coast 

Guard insists on addressing requests for relief in piecemeal fashion and only if Plaintiffs’ counsel 

can provide specific names. This is prejudicial to the putative class as a whole. Plaintiffs’ 

counsel do not have the same power and authority to help the class as class counsel appointed by 

the Court under Rule 23. Plaintiffs again urge the Court to grant their motions for class-wide 

relief (ECF No. 4) including class certification, appointment of Plaintiffs’ counsel as class 

counsel, and a class-wide injunction. 

                                                            

1

 Under the terms of the NDAA, the rescission of the Secretary of Defense’s mandate is not 

required until “30 days after the date of the enactment of this Act.” In other words, even 

assuming the Coast Guard intended to cease separations by the Department of Defense’s 

deadline, Coast Guard leadership still has up to a month to discharge as many members of the 

putative class as possible under the existing vaccine mandate, consistent with the Coast Guard’s 

repeated and unwavering refusal to suspend separation actions for the entire putative class absent 

a court order. See ECF No. 44 at 2; ECF No. 47 at 2, ECF No. 51 at 2. The Coast Guard has 

agreed to temporarily suspend separation actions for a relatively few service members, including 

a group of reservists having an original Inactive Status List date of October 1, 2022, and a 

handful of service members who have contacted Plaintiffs’ counsel on their own. But the group 

for whom extensions have been secured represent a relatively small faction (approximately 10%) 

of the entire putative class, with over 1,000 service members facing immediate termination and 

continued, repeated instances of irreparable harm. See ECF Nos. 25, 44, 47, 51. And even those 

for whom extensions have been secured remain at risk of separation without class-wide relief 

from this Court, given that the extensions secured by Plaintiffs’ counsel run only to January 15, 

2023. 

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Dated: December 27, 2022 

Respectfully submitted, 

/s/ Adam S. Hochschild 

Stephen Crampton, pro hac vice Charles W. Fillmore 

THOMAS MORE SOCIETY – Senior Counsel State Bar # 00785861 

PO Box 4506 H. Dustin Fillmore III 

Tupelo, MS 38803 State Bar # 06996010 

(662)255-9439 THE FILLMORE LAW FIRM, L.L.P. 

scrampton@thomasmoresociety.org 201 Main Street, Suite 700 

 Fort Worth, TX 76102 

Michael McHale, pro hac vice (817)332-2351 

THOMAS MORE SOCIETY – Counsel chad@fillmorefirm.com 

10506 Burt Circle, Ste. 110 dusty@fillmorefirm.com 

Omaha, NE 68114 

(402)501-8586 Nathan Loyd, pro hac vice

mmchale@thomasmoresociety.org THOMAS MORE SOCIETY – Special Counsel 

 5101 Old Highway 5, Box 442 

Adam S. Hochschild, pro hac vice Lebanon, GA 30146 

Hochschild Law Firm (559)744-3664

THOMAS MORE SOCIETY – Special Counsel nathaniel.loyd@thomasmoresociety.org 

PO Box 401 

Plainfield, VT 05667 

(314)503-0326 

adam@hochschildlaw.com 

Mary Catherine Hodes, pro hac vice

THOMAS MORE SOCIETY – Special Counsel 

112 S. Hanley Rd., Second Floor 

Clayton, MO 63105 

(314)825-5725 

mchodes@thomasmoresociety.org 

Paul M. Jonna, pro hac vice 

LiMandri & Jonna LLP 

THOMAS MORE SOCIETY – Special Counsel 

P.O. Box 9120 

Rancho Santa Fe, CA 92067 

(858)759-994 

pjonna@limandri.com 

Counsel for Plaintiffs

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