UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

SAN ANGELO DIVISION 

ROBERT SCHELSKE, et al., 

 Plaintiffs, 

 v. 

LLOYD J. AUSTIN, III, 

United States Secretary of Defense, et al., 

 Defendants. 

No. 6:22-cv-0049-H 

DEFENDANTS’ OBJECTION TO PLAINTIFFS’ NOTICE/REQUEST 

TO UPDATE CLASS DEFINITION AND ADD CLASS REPRESENTATIVE 

On November 23, 2022, Plaintiffs moved to certify a class, which Defendants opposed. 

ECF Nos. 48, 70. That motion has not been decided. While it was pending, Congress directed the 

Secretary of Defense to rescind the COVID-19 vaccination requirement challenged in this case. 

The Secretary did so on January 10, 2023, also directing the removal of all adverse actions solely 

associated with the denial of a request for religious accommodation, which the Army is in the 

process of implementing. ECF No. 85. 

Following the rescission, Defendants moved to dismiss the case as moot. ECF No. 88. In 

response, Plaintiffs filed an amended complaint as of right pursuant to Federal Rule of Civil 

Procedure 15(a)(1)(B). ECF No. 92. The amended complaint adds a new plaintiff, Luke Chrisman, 

who was allegedly separated from the Army with a general discharge for refusal to be vaccinated 

(the other Plaintiffs have not been separated). See id. ¶ 23. It also seeks new relief from purported 

harms related to the rescinded vaccination requirement that, at least for now, Plaintiffs allege to be 

ongoing, including purportedly missed trainings, delayed promotions, and disciplinary records that 

have yet to be removed. See id. ¶¶ 58–63. 

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Shortly after amending the complaint, Plaintiffs filed a one-page document styled as a 

“notice/request” and proposing a significantly different class than that briefed in connection with 

their prior motion. In particular, the new class definition would expand the proposed class to 

individuals who have been separated from the Army, ECF No. 95 at 1, whereas the original class 

was limited to “Army service members,” ECF No. 48 at 1. It would also include an additional 

requirement that class members have suffered some vague “adverse action[]” or “other adverse 

consequence” due to a prior refusal to be vaccinated. ECF No. 95 at 1. 

Defendants respectfully object to the notice and oppose the new proposed class. Class 

certification entails a “rigorous analysis” in which the party seeking certification “bear[s] the 

burden of proof that the proposed class satisfies the requirements of Rule 23.” M.D. ex rel. 

Stukenberg v. Perry, 675 F.3d 832, 837 (5th Cir. 2012). And this Court’s local rules specify that a 

request for class certification must be presented by motion with an accompanying brief that 

provides information specific to the proposed class. See LR 23.2. As examples, a class-certification 

brief must contain “specific factual allegations” about the “approximate number of class 

members,” the “distinguishing and common characteristics of class members,” and “questions of 

law and fact that are common to the class.” LR 23.2(b). As another example, a motion for class 

certification must set out “the basis for the named plaintiff’s claim to be an adequate representative 

of the class, including financial responsibility to fund the action.” LR 23.3 (c). 

Plaintiffs have provided none of the required information for the “updated” class definition 

or for the proposed new class representative (Plaintiff Chrisman), who apparently seeks to 

represent every Army service member separated due to vaccine refusal. And Plaintiffs’ bare-bones 

“notice/request” does not even attempt to satisfy their burden of showing that the new proposed 

class satisfies the requirements of Rule 23. See Stukenberg, 675 F.3d at 837. Defendants therefore 

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object to this attempt to certify a class without briefing. Plaintiffs should be required to request 

certification of the class set forth in their “notice/request” by motion with a supporting brief, which 

Defendants would oppose. 

Dated: February 21, 2023 Respectfully submitted, 

BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General 

ALEXANDER M. HAAS 

Branch Director 

ANTHONY J. COPPOLINO 

Deputy Branch Director 

 /s/ Johnny Walker 

KERI BERMAN 

JOHNNY H. WALKER (D.C. Bar #991325) 

Trial Attorney 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street NW, Rm. 12304 

Washington, D.C. 20530 

Tel.: (202) 514-3183 / Fax: (202) 616-8460 

Email: johnny.h.walker@usdoj.gov 

Counsel for Defendants

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