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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, ) 

 ) 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 COAST GUARD’S NOTICE OF 

SUPPLEMENTAL AUTHORITY (ALAVARDO) 

For various reasons, the Fourth Circuit’s summary order in Alvarado v. Austin, No. 23-

1419 (4th Cir. Aug. 3, 2023) (ECF No. 117-1), dismissing military chaplains’ appeal as moot 

without further explanation, does not support the Coast Guard’s pending motion to dismiss. 

First, the Coast Guard is under the authority of the Department of Homeland Security 

(DHS) not the Department of Defense (DoD). See Complaint, ECF No. 1, ¶ 30; ECF No. 95 at 7, 

12 n.2. Unlike in this case, there are no Coast Guard or DHS defendants in Alvarado.

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Second, Plaintiffs’ claims are justiciable here. As the Fifth Circuit held in a Navy vaccine 

mandate case, “[I]t is likely that, following RFRA’s enactment, abstention based on the Mindes

[v. Seaman, 453 F.2d 197 (5th Cir. 1971)] test is no longer permissible”; “even under Mindes, 

Plaintiffs’ claims are justiciable.” Navy SEALs 1-26 v. Biden, 27 F.4th 336, 346, 349 (5th Cir. 

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 Plaintiffs have continued to name DoD Secretary Austin as a defendant in this case out of an 

abundance of caution given the Coast Guard’s and DoD’s apparent position, contrary to reality, 

that the Coast Guard is somehow under the authority of the DoD. See, e.g., ECF No. 93 at 15 n.4. 

The Coast Guard could begin to “operate as a service in the Navy”—and thus fall under the 

DoD—at any time “upon the declaration of war if Congress so directs in the declaration or when 

the President directs.” 14 U.S.C. § 103. But there has been no such Congressional declaration or 

Presidential direction. 

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2022). See also Navy SEALs 1-26 v. Biden, 72 F.4th 666, 675 (5th Cir. 2023) (expressly 

declining to vacate Navy SEALs 1-26 v. Biden, 27 F.4th 336); ECF No. 95 (Plaintiffs’ 

memorandum discussing impact of Navy SEALs 1-26 on this case). In Alvarado, the District 

Court held Mindes applied to preclude the chaplains’ claims, the government made parallel 

arguments in support of its motion to dismiss the appeal, and the chaplains did not respond to 

that argument. See ECF No. 10 at 8-9, 12-13 in Alvarado, No. 23-1419 (4th Cir.) (government’s 

motion to dismiss chaplains’ appeal); and see, generally, ECF No. 14 in Alvarado, No. 23-1419 

(4th Cir.) (chaplains’ opposition to motion to dismiss appeal). Fourth Circuit precedent also 

supports a finding of justiciability, see Roe v. Shanahan, 359 F. Supp.3d 382, 406 (E.D. Va. 

2019), aff’d sub nom. Roe v. Dep’t of Def., 947 F.3d 207 (4th Cir. 2020). Even if it did not, 

governing precedent in this Circuit—including Navy SEALs 1-26—compels a finding of 

justiciability in the present case. 

Third, the voluntary cessation doctrine and the capable-of-repetition-yet-evading-review 

doctrine each independently precludes a finding of mootness here, as Plaintiffs have explained in 

detail previously. See, e.g., ECF No. 95 at 11-17. In Alvarado, the chaplains did not argue that 

either doctrine applied. See, generally, ECF No. 14 and ECF No. 17 at 5 in Alvarado, No. 23-

1419 (4th Cir.). 

Fourth, even if the claims for injunctive relief were somehow moot, the request for 

declaratory relief cannot be moot. ECF No. 95 at 19-24. The chaplains made no such argument 

in support of any declaratory relief claim in Alvarado. 

For these reasons, among others, Alvarado does not support the Coast Guard’s motion to 

dismiss. Plaintiffs here face ongoing concrete harms resulting from violations of their religiousliberty rights (ECF No. 95 at 9-11)—what the Coast Guard trivializes as “paperwork injuries” 

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(ECF No. 93 at 18).2 The Court should deny the Coast Guard’s motion to dismiss and grant relief 

in favor of Plaintiffs. 

 

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 For example, Plaintiff Marcenelle still awaits a decision on his promotion. ECF No. 73 at 14. 

His promotion is by no means guaranteed, since the Coast Guard, unlike the Navy, has not issued 

an order prohibiting consideration of “any adverse information related solely to COVID-19 

vaccine refusal in cases in which an accommodation was requested.” ECF No. 95 at 9-10. Even 

if he is selected for promotion during the next promotion board, the Coast Guard will not let him 

know until December, if history is a guide. ECF No. 73 at 240 (ALCGPSC 159/22, announcing 

the results of the September 12, 2022 lieutenant selection board on December 13, 2022—three 

full months after the selection board convened). Plaintiffs continue to need urgent relief which 

the Coast Guard obstinately refuses to grant. 

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Dated: August 16, 2023 

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 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 

Counsel for Plaintiffs 

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