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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, )

) 

Plaintiffs, )

v. )

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

ALEJANDRO N. MAYORKAS, in his official )

capacity as Secretary of Homeland Security, )

LLOYD J. AUSTIN, III, in his )

official capacity as Secretary of Defense, )

LINDA L. FAGAN, in her official )

capacity as Commandant of the Coast Guard, and )

BRIAN K. PENOYER, in his official capacity )

as Assistant Commandant for Human )

Resources of the Coast Guard, )

)

Defendants. )

PLAINTIFFS’ RULE 60(b) MOTION 

FOR RELIEF FROM FINAL JUDGMENT 

Pursuant to Fed. R. Civ. Proc. Rule 60(b), Plaintiffs hereby move for relief from this 

Court’s order of dismissal (ECF No. 98) and final judgment (ECF No. 99), because application 

of the judgment prospectively would no longer be equitable under Rule 60(b)(5), and relief is 

otherwise justified under Rule 60(b)(6), for the following reasons confirming that Plaintiffs’ 

claims are not moot: 

1. On August 11, 2023, six days before this Court’s order of dismissal, the Coast 

Guard issued ALCOAST 291/23 announcing a “re-accession” process to “assist Coast Guard 

members (active duty and reserve) who separated – voluntarily or involuntarily – due to the 

previously mandated COVID-19 vaccination,” via a newly created “Return2ServiceTeam.” 

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(ALCOAST 291/23.)

1 Critically, the policy states that “[t]he Coast Guard will restore members 

to their former rank, and those who had promotions or advancements withheld solely due to their 

COVID-19 vaccination status will have those promotions or advancements restored during the 

re-accession process, assuming they meet all other requirements.” (Id. at ¶A(5) (emphasis 

added).)

2. Accordingly, the Coast Guard is now granting automatic restoration of missed 

promotions or advancements for those who separated from service as a result of the COVID-19 

vaccine mandate (specifically, those who were selected for promotion prior to the Coast Guard 

instructing selection boards to categorically deny promotion to anyone having a recorded CG3307 documenting mandate noncompliance, but were forced out of service before promoting). 

Those service members are also ensured an “approximately 30 day[]” process to fully return to 

service. 

3. Meanwhile Plaintiff Marcenelle and similarly-situated unvaccinated service 

members who remained in the service have been forced to apply for a special selection board 

(SSB) to restore their lost promotions. If selected, they must then wait an unspecified length of 

time until their promotions are announced and then effective—all at the high risk of irreparable 

delay in their military advancement due to the delay in assuming more senior leadership 

responsibilities. 

4. ALCOAST 291/23 confirms that the Coast Guard’s policy of a conditional and 

indefinite restorative process for Plaintiff Marcenelle (and others who remained in the service 

1 https://www.dcms.uscg.mil/ppc/news/Article/3490753/alcoast-29123-sitrep-1-implementationof-return2service-team-r2st/. 

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and now seek restoration of promotions or advancements lost as a result of their vaccine status) 

fails to adequately eliminate the ongoing consequences of its COVID-19 vaccine mandate.

5. The Coast Guard did not give notice of ALCOAST 291/23 to the Court or 

Plaintiffs’ counsel.

6. Additionally, on August 28, 2023, 11 days after this Court’s dismissal order, the 

Biden Administration announced that it will officially “encourage” Americans to get an updated 

COVID-19 vaccine upon its release later this month.2 On September 11, 2023, the FDA 

announced that it had fully approved the updated vaccine for individuals 12 years of age and 

older and for emergency use by individuals 6 months through 11 years old.

3 In light of the Biden 

Administration’s previously expressed opposition to additional protections in the 2024 National 

Defense Authorization Act for service members who separated because of the COVID-19 

vaccine mandate, including the Administration’s expressed desire to retain the ability to “again 

require [COVID-19] vaccination” (see ECF No. 95, Br. at 8), these latest comments newly show

the Coast Guard’s failure to make absolutely clear that re-implementation of the illegal mandate 

and accommodation process is not reasonably likely to recur. 

7. Plaintiffs rely on and incorporate the attached exhibit and accompanying 

Memorandum in Support in furtherance of this Motion.

WHEREFORE, Plaintiffs request that the Court enter an order granting relief from its 

order of dismissal and final judgment.

2 https://www.whitehouse.gov/briefing-room/press-briefings/2023/08/28/press-briefing-by-presssecretary-karine-jean-pierre-and-director-of-the-office-of-public-engagement-stephen-benjamin/; 

https://www.foxnews.com/politics/biden-administration-will-encourage-americans-to-get-newcovid-19-vaccine-kjp-says. 3 https://www.fda.gov/news-events/press-announcements/fda-takes-action-updated-mrna-covid19-vaccines-better-protect-against-currently-circulating.

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CERTIFICATE OF CONFERENCE

This motion is opposed. A phone conference was held on September 11, 2023, between 

Plaintiffs’ counsel Michael McHale and the Coast Guard’s counsel Cody T. Knapp, and Mr. 

Knapp confirmed that the Coast Guard would oppose the motion. 

/s/ Michael G. McHale

Michael G. McHale

Counsel for Plaintiffs

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Dated: September 13, 2023

Respectfully submitted,

/s/ Nathan Loyd

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 G. 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

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