UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

ERIC JACKSON, et. al., 

 Plaintiffs, 

 v. 

ALEJANDRO N. MAYORKAS, 

Secretary of Homeland Security, et al., 

 Defendants. 

Case No. 4:22-cv-0825-P 

MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTIONS 

FOR CLASS CERTIFICATION AND A PRELIMINARY INJUNCTION 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 1 of 59 PageID 800
CONTENTS 

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 3

A. The COVID-19 Pandemic ....................................................................................... 3

B. Military Vaccination Directives .............................................................................. 3

C. The Coast Guard’s Implementation of the COVID-19 Vaccination 

Directive .................................................................................................................. 5

D. Other Litigation Regarding the Military’s Vaccination Requirement .................... 7

E. This Action.............................................................................................................. 8

LEGAL STANDARDS .................................................................................................................. 9

ARGUMENT ................................................................................................................................ 10

I. THE COURT SHOULD NOT CERTIFY THE CLASS. ................................................. 10

A. Plaintiffs Fail to Identify Common Issues to Advance Their RFRA 

Claims. .................................................................................................................. 10

B. Plaintiffs Fail to Demonstrate that Their Claims Are Typical of the Class. ......... 16

C. Plaintiffs Fail to Satisfy the Requirements of Rule 23(b)(2). ............................... 17

II. THE COURT SHOULD NOT ENTER AN INJUNCTIVE RELIEF FOR 

INDIVIDUALS OR ON A CLASS-WIDE BASIS. ......................................................... 20

A. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims. ...................... 20

1. The Named Plaintiffs’ claims are not ripe for review. .............................. 20

2. Plaintiffs have failed to exhaust all available intraservice 

remedies. ................................................................................................... 24

3. Plaintiffs’ RFRA claims fail on the merits. ............................................... 27

4. Plaintiffs’ First Amendment claims are unlikely to succeed on the 

merits......................................................................................................... 40

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 2 of 59 PageID 801
ii 

B. Plaintiffs Are Unlikely to Suffer Irreparable Harm Absent Preliminary 

Relief. .................................................................................................................... 42

C. The Equities and Public Interest Weigh Against a Preliminary Injunction. ......... 44

CONCLUSION ............................................................................................................................. 45

 

 

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iii 

AUTHORITIES 

CASES 

Abbassi v. INS, 

143 F.3d 513 (9th Cir. 1998) .................................................................................................... 42 

Abbott v. Biden, 

--- F. Supp. 3d ---, 2022 WL 2287547 (E.D. Tex. June 24, 2022), appeal filed, 

No. 22-40399 (5th Cir. June 29, 2022) ....................................................................................... 7

Ahmad v. Old Republic Nat’l Title Ins. Co., 

690 F.3d 698 (5th Cir. 2012) .................................................................................................... 10 

Air Force Off. v. Austin, 

--- F. Supp. 3d ---, 2022 WL 468799 (M.D. Ga. Feb. 15, 2022) ................................................ 7 

Ali v. Stephens, 

822 F.3d 776 (5th Cir. 2016) .................................................................................................... 16 

Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 

878 F.2d 806 (5th Cir. 1989) ...................................................................................................... 9 

Allison v. Citgo Petroleum Corp., 

151 F.3d 402 (5th Cir. 1998) .................................................................................................... 18 

Am. Petroleum Inst. v. EPA, 

683 F.3d 382 (D.C. Cir. 2012) .................................................................................................. 23 

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 

897 F.3d 314 (D.C. Cir. 2018), cert. denied, 140 S. Ct. 1198 (2020) ...................................... 43 

Ass’n of Irritated Residents v. U.S. EPA, 

10 F.4th 937 (9th Cir. 2021) ............................................................................................... 20, 22 

Austin v. Navy SEALs 1–26, 

142 S. Ct. 1301 (2022) ....................................................................................................... passim

Beck v. Maximus, Inc., 

457 F.3d 291 (3d Cir. 2006)...................................................................................................... 17 

Bellinger v. Bowser, 

288 F. Supp. 3d 71 (D.D.C 2017) ............................................................................................. 43 

Biden v. Missouri, 

142 S. Ct. 647 (2022) ................................................................................................................ 38 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 4 of 59 PageID 803
iv 

Brown v. Collier, 

929 F.3d 218 (5th Cir. 2019) .............................................................................................. 11, 19 

Burwell v. Hobby Lobby Stores, Inc., 

573 U.S. 682 (2014) ................................................................................................ 11, 12, 35, 36 

Cargill v. Marsh, 

902 F.2d 1006 (D.C. Cir. 1990) ................................................................................................ 25 

Chappell v. Wallace, 

462 U.S. 296 (1983) .................................................................................................................. 45 

Chavez v. Plan Benefit Servs., Inc., 

957 F.3d 542 (5th Cir. 2020) .................................................................................................... 19 

Church v. Biden, 

573 F. Supp. 3d 118 (D.D.C. 2021) ................................................................................... passim

Creaghan v. Austin, 

--- F. Supp. 3d ---, 2022 WL 1500544 (D.D.C. May 12, 2022), appeal filed, 

No. 22-5135 (D.C. Cir. May 20, 2022) ..................................................................... 7, 28, 29, 40 

Daniels Health Scis., LLC v. Vascular Health Scis., LLC, 

710 F.3d 579 (5th Cir. 2013) .................................................................................................... 42 

Davis v. Davis, 

826 F.3d 258 (5th Cir. 2016) .................................................................................................... 11 

Diraffael v. Cal. Mil. Dep’t, 

 No. 10- cv-7240, 2011 WL 13274364 (C.D. Cal. Mar. 21, 2011) ............................................ 21 

DM Arbor Ct., Ltd. v. City of Houston, 

988 F.3d 215 (5th Cir. 2021) .............................................................................................. 20, 22 

Dodson v. U.S. Gov’t, Dep’t of the Army, 

988 F.2d 1199 (Fed. Cir. 1993)................................................................................................. 38 

Doe #1-#14 v. Austin, 

572 F. Supp. 3d 1224 (N.D. Fla. 2021)....................................................................................... 7 

Doe v. San Diego Unified Sch. Dist., 

19 F.4th 1173 (9th Cir. 2021), cert. and application for injunction denied, 

142 S. Ct. 1099 (2022) .................................................................................................. 33, 35, 42 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 5 of 59 PageID 804
v 

Doe 2 v. Shanahan, 

917 F.3d 694 (D.C. Cir. 2019) ............................................................................................ 38, 39 

Does 1–6 v. Mills, 

16 F.4th 20 (1st Cir. 2021), cert. denied sub nom. 

 Does 1-3 v. Mills, 142 S. Ct. 1112 (2022)) .................................................................... 33, 35, 37 

Doster v. Kendall, 

48 F.4th (6th Cir. 2022) ........................................................................................................... 16 

Doster v. Kendall, 

---F. Supp. 3d ---, 2022 WL 982299 (S.D. Ohio Mar. 31, 2022) ............................................... 7 

Doster v. Kendall, 

No. 1:22-cv-84, 2022 WL 2974733 (S.D. Ohio July 27, 2022) ................................................. 8 

Dunn v. Austin, 

142 S. Ct. 1707 (2022) ................................................................................................................ 7 

Elrod v. Burns, 

427 U.S. 347 (1976) .................................................................................................................. 43 

Farmer v. Mabus, 

940 F.2d 921 (5th Cir. 1991) ...................................................................................................... 9 

Flecha v. Medicredit, Inc., 

946 F.3d 762 (5th Cir. 2020) .................................................................................................... 10 

Fourth Corner Credit Union v. Fed. Rsrv. Bank of Kan. City, 

861 F.3d 1052 (10th Cir. 2017) ................................................................................................ 22 

Fulton v. City of Phila., 

141 S. Ct. 1868 (2021) .............................................................................................................. 13 

General Tel. Co. of Sw. v. Falcon, 

457 U.S. 147 (1982) .................................................................................................................. 17 

Gilligan v. Morgan, 

413 U.S. 1 (1973) .................................................................................................................. 9, 24 

Goldman v. Weinberger, 

475 U.S. 503 (1986) ........................................................................................................ 9, 28, 40 

Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal, 

546 U.S. 418 (2006) ............................................................................................................ 11, 13 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 6 of 59 PageID 805
vi 

Google, Inc. v. Hood, 

822 F.3d 212 (5th Cir. 2016) .................................................................................................... 43 

Guettlein v. U.S. Merch. Marine, 

Acad., 577 F. Supp. 3d 96 (E.D.N.Y. 2021) ............................................................................... 7 

Heidman v. United States, 

414 F. Supp. 47 (N.D. Ohio 1976) ............................................................................................ 24 

Hodges v. Callaway, 

499 F.2d 417 (5th Cir. 1974) .................................................................................................... 24 

Holland Am. Ins. Co. v. Succession of Roy, 

777 F.2d 992 (5th Cir. 1985) .................................................................................................... 42 

Holt v. Hobbs, 

574 U.S. 352 (2015) .................................................................................................................. 13 

Huawei Techs. USA, Inc. v. FCC, 

2 F.4th 421 (5th Cir. 2021) ................................................................................................. 20, 22 

In re Am. Med. Sys., Inc., 

75 F.3d 1069 (6th Cir. 1996) .................................................................................................... 16 

James v. City of Dallas, 

254 F.3d 551 (5th Cir. 2001) .................................................................................................... 16 

Janvey v. Alguire, 

647 F.3d 585 (5th Cir. 2011) .................................................................................................... 42 

Johnson v. Am. Credit Co. of Ga., 

581 F.2d 526 (5th Cir. 1978) .................................................................................................... 19 

Kaemmerling v. Lappin, 

553 F.3d 669 (D.C. Cir. 2008) ............................................................................................ 36, 41 

Knick v. Austin, 

No. 22-1267, 2022 WL 2157066 (D.D.C. June 15, 2022) .............................................. 7, 21, 25 

Kreis v. Sec’y of Air Force, 

866 F.2d 1508 (D.C. Cir. 1989) ................................................................................................ 24 

La. Power & Light Co. v. Fed. Power Comm’n, 

526 F.2d 898 (5th Cir. 1976) .................................................................................................... 22 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 7 of 59 PageID 806
vii 

Lacewell v. Off. of Comptroller of Currency, 

999 F.3d 130 (2d Cir. 2021)...................................................................................................... 20 

Lemon v. Int’l Union of Operating Eng’rs, 

216 F.3d 577 (7th Cir. 2000) .................................................................................................... 19 

Lindenau v. Alexander, 

663 F.2d 68 (10th Cir. 1981) ...................................................................................................... 9 

Lopez v. City of Houston, 

617 F.3d 336 (5th Cir. 2010) .............................................................................................. 20, 22 

M.D. ex rel. Stukenberg v. Perry, 

675 F.3d 832 (5th Cir. 2012) .............................................................................................. 10, 18 

Machella v. Cardenas, 

653 F.2d 923 (5th Cir. Unit A Aug. 1981)................................................................................ 17 

Maldonado v. Ochsner Clinic Found., 

493 F.3d 521 (5th Cir. 2007) .............................................................................................. 17, 18 

Mark Short v. Berger, 

No. 22-cv-1151, 2022 WL 1051852 (C.D. Cal. Mar. 3, 2022), appeal dismissed, 

No. 22-55339, 2022 WL 2421096 (9th Cir. May 17, 2022) .............................................. passim

Mazurek v. Armstrong, 

520 U.S. 968 (1997) .................................................................................................................... 9 

McManus v. Fleetwood Enters., Inc., 

320 F.3d 545 (5th Cir. 2003) .................................................................................................... 19 

Miller v. Austin, 

--- F. Supp. 3d ---, 2022 WL 3584666 (D. Wyo. Aug. 22, 2022) ...................................... passim

Mindes v. Seaman, 

453 F.2d 197 (5th Cir. 1971) .................................................................................................... 25 

Miss. Power & Light Co. v. United Gas Pipe Line Co., 

760 F.2d 618 (5th Cir. 1985) ...................................................................................................... 9 

Moussazadeh v. Tex. Dep’t of Crim. Just., 

703 F.3d 781 (5th Cir. 2012) .................................................................................................... 12 

Navy SEAL 1 v. Austin, 

--- F. Supp. 3d ----, 2022 WL 1294486 (D.D.C. Apr. 29, 2022), appeal filed, 

No. 22-5114 (D.C. Cir. May 5, 2022) ................................................................................ passim

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 8 of 59 PageID 807
viii 

Navy SEAL 1 v. Biden, 

No. 8:21-cv-2429, 2022 WL 483832 (M.D. Fla. Feb. 2, 2022) .................................................. 7 

Navy SEALs 1–26 v. Biden, 

578 F. Supp. 3d 822 (N.D. Tex. 2022) ................................................................................. 7, 14 

Navy SEALs 1–26 v. Austin, 

--- F. Supp. 3d ---, 2022 WL 1025144 (N.D. Tex. Mar. 28, 2022), appeal filed, 

No. 22-10534 (5th Cir. May 31, 2022); .................................................................... 8, 14, 17, 19 

New Doe Child #1 v. Congress of the United States, 

891 F.3d 578 (6th Cir. 2018) .................................................................................................... 28 

Nken v. Holder, 

556 U.S. 418 (2009) ............................................................................................................ 42, 44 

Norris v. Stanley, 

No. 1:21-cv-756, 2022 WL 557306 (W.D. Mich. Feb. 22, 2022), appeal filed, 

No. 22-1200 (6th Cir. Mar. 14, 2022) ....................................................................................... 38

North Dakota v. United States, 

495 U.S. 423 (1990) .................................................................................................................. 44 

Oklahoma v. Biden, 

577 F. Supp. 3d 1245 (W.D. Okla. 2021) ............................................................................. 7, 31 

Orloff v. Willoughby, 

345 U.S. 83 (1953) .................................................................................................................... 45 

Parisi v. Davidson, 

405 U.S. 34 (1972) .................................................................................................................... 24 

Parker v. Levy, 

417 U.S. 733 (1974) .................................................................................................................. 24 

Poffenbarger v. Kendall, 

--- F. Supp. 3d ----, 2022 WL 594810 (S.D. Ohio Feb. 28, 2022) .............................................. 7 

Prantil v. Arkema Inc., 

986 F.3d 570 (5th Cir. 2021) .................................................................................................... 19 

Ramirez v. Collier, 

142 S. Ct. 1264 (2022) ........................................................................................................ 12, 13 

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Randall v. Rolls-Royce Corp., 

637 F.3d 818 (7th Cir. 2011) .................................................................................................... 19 

Robert v. Austin, 

No. 21-cv-2228, 2022 WL 103374 (D. Colo. Jan. 11, 2022), 

 appeal filed, No. 22-1032 (10th Cir. Feb. 2, 2022) .................................................. 7, 21, 22, 25 

Roberts v. Roth, 

--- F. Supp. 3d ---, 2022 WL 834148 (D.D.C. Mar. 21, 2022) ....................................... 6, 21, 22 

Rostker v. Goldberg, 

453 U.S. 57 (1981) ...................................................................................................................... 9 

Roth v. Austin, 

--- F. Supp. 3d ---, 2022 WL 1568830 (D. Neb. May 18, 2022), appeal filed, 

No. 22-2058 (8th Cir. May 20, 2022) ................................................................................ passim

S. Bay United Pentecostal Church v. Newsom, 

140 S. Ct. 1613 (2020) .............................................................................................................. 29 

Sample v. Morrison, 

406 F.3d 310 (5th Cir. 2005) .................................................................................................... 20 

Sampson v. Murray, 

415 U.S. 61 (1974) .................................................................................................................... 42 

Schlesinger v. Ballard, 

419 U.S. 498 (1975) .................................................................................................................... 9 

Schlesinger v. Councilman, 

420 U.S. 738 (1975) .................................................................................................................. 24 

Shaw v. Austin, 

539 F. Supp. 3d 169 (D.D.C. 2021) .......................................................................................... 21

Shrimpers & Fisherman of the RGV v. U.S. Army Corps of Eng’rs, 

849 F. App’x 459 (5th Cir. 2021) ............................................................................................. 22 

Smith v. Harvey, 

541 F. Supp. 2d 8 (D.D.C. 2008) .............................................................................................. 23 

Solorio v. United States, 

483 U.S. 435 (1987) .................................................................................................................... 9 

Standage v. Braithwaite, 

526 F. Supp. 3d 56 (D. Md. 2021) ............................................................................................ 21 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 10 of 59 PageID 809
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Stirman v. Exxon Corp., 

280 F.3d 554 (5th Cir. 2002) .................................................................................................... 16 

Tagore v. United States, 

735 F.3d 324 (5th Cir. 2013) .................................................................................................... 11 

Tandon v. Newsom, 

141 S. Ct. 1294 (2021) .............................................................................................................. 33 

Tellabs, Inc. v. Makor Issues & Rts., Ltd., 

551 U.S. 308 (2007) .................................................................................................................... 3 

Thomas Short v. Berger, 

--- F. Supp. 3d ---, 2022 WL 1203876 (D. Ariz. Apr. 22, 2022), appeal filed, 

No. 22-15755 (9th Cir. May 18, 2022); ............................................................................. passim

Thomas v. Union Carbide Agric. Prods. Co., 

473 U.S. 568 (1985) ............................................................................................................ 20, 24 

Toilet Goods Ass’n v. Gardner, 

387 U.S. 158 (1967) .................................................................................................................. 23 

TOTAL Gas & Power N. Am., Inc. v. Fed. Energy Regul. Comm’n, 

859 F.3d 325 (5th Cir. 2017) .................................................................................................... 23 

Trump v. Hawaii, 

138 S. Ct. 2392 (2018) .................................................................................................. 40, 41, 42 

Tucker v. Collier, 

906 F.3d 295 (5th Cir. 2018) .............................................................................................. 11, 13 

U.S. Navy SEALs 1–26 v. Biden, 

27 F.4th 336 (5th Cir. 2022) ..................................................................................................... 25 

United States v. Elder, 

---F. Supp. 3d---, 2022 WL 836923 (E.D.N.Y. Mar. 21, 2022) ............................................... 36 

United States v. O’Brien, 

391 U.S. 367 (1968) .................................................................................................................. 28 

United States v. U.S. Steel Corp., 

520 F.2d 1043 (5th Cir. 1975) .................................................................................................. 19 

 

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Valdez v. Grisham, 

559 F. Supp. 3d 1161 (D.N.M. 2021), 

 aff’d, 2020 WL 2129071 (10th Cir. June 14, 2022) ................................................................. 38 

Vance v. Wormuth, 

No. 3:21-cv-730, 2022 WL 1094665 (W.D. Ky. Apr. 12, 2022) ......................................... 7, 21 

Von Hoffburg v. Alexander, 

615 F.2d 633 (5th Cir. 1980) .................................................................................................... 25 

Wal-Mart Stores, Inc. v. Dukes, 

564 U.S. 338 (2011) ................................................................................................ 10, 15, 17, 18 

Wayte v. United States, 

470 U.S. 598 (1985) .................................................................................................................. 28 

We The Patriots USA, Inc. v. Hochul, 

17 F.4th 266 (2d Cir. 2021), opinion clarified, 17 F.4th 368 (2d Cir. 2021), 

 and denying injunction pending appeal sub. nom., 

 Dr. A. v. Hochul, 142 S. Ct. 552 (2021) ............................................................................. 35, 41 

West v. Brown, 

558 F.2d 757 (5th Cir. 1977) .................................................................................................... 26 

White v. Carlucci, 

862 F.2d 1209 (5th Cir. 1989) .................................................................................................. 42 

Winter v. Nat. Res. Def. Council, Inc., 

555 U.S. 7 (2008) ...................................................................................................... 9, 29, 42, 44 

Wyoming v. Zinke, 

871 F.3d 1133 (10th Cir. 2017) ................................................................................................ 23 

Yates v. Collier, 

868 F.3d 354 (5th Cir. 2017) .................................................................................................... 17 

 

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STATUTES 

42 U.S.C. § 2000bb-1(a) ............................................................................................................... 12 

42 U.S.C. § 2000bb-1(b) ......................................................................................................... 27, 29 

42 U.S.C. § 2000bb-1(b)(1) .......................................................................................................... 12 

42 U.S.C. § 2000bb-1(b)(2) .......................................................................................................... 12 

42 U.S.C. § 2000bb-1(c) ......................................................................................................... 11, 15 

RULES 

Fed. R. Civ. P. 23(a) ................................................................................................................. 2, 10 

Fed. R. Civ. P. 23(a)(2) ........................................................................................................... 10, 19 

Fed. R. Civ. P. 23(a)(3) ........................................................................................................... 16, 17 

Fed. R. Civ. P. 23(b)(2)................................................................................................. 2, 17, 18, 19 

OTHER AUTHORITIES 

1 William B. Rubenstein, Newberg on Class Actions § 3:29 (5th ed.) ......................................... 16 

AR 40–562, Table D-1 (Feb. 16, 2018), 

 https://perma.cc/82YE-EA3U ..................................................................................................... 4 

Bryce H. P. Mendez, Cong. Rsch. Serv., IF11816, Defense Health Primer: 

 Military Vaccinations (updated Aug. 6, 2021), 

https://crsreports.congress.gov/product/pdf/IF/IF11816/2 ......................................................... 4 

CDC, Benefits of Getting a COVID-19 Vaccine – Protection from COVID-19 (Aug. 17, 2022), 

 https://perma.cc/W66Y-3GU7 ............................................................................................ 35, 37

CDC, COVID Data Tracker (updated Oct. 4, 2022), https://perma.cc/E2KS-M9LB .................... 3 

CDC, COVID-19, 

 https://perma.cc/A9D5-AUHV ................................................................................................... 3 

CDC, Interim Clinical Considerations for Use of COVID-19 Vaccines Currently Approved or 

Authorized in the United States (last updated Sept. 23, 2022), 

 https://perma.cc/VM73-HDU8 ................................................................................................. 38 

 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 13 of 59 PageID 812
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CDC, Morbidity and Mortality Weekly Report (Mar. 18, 2022), 

 https://perma.cc/HJH3-PEN4.................................................................................................... 31 

CDC, Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, 

Communities, and Health Care Systems—United States (Aug. 2022), 

 https://perma.cc/Y7XV-4R3Q .................................................................................................. 35 

CG COMDTINST M1000.4 (Aug. 2018), 

 https://perma.cc/PQW4-K38G .................................................................................................... 6 

CG COMDTINST M6230.4G, 

 https://perma.cc/82YE-EA3U ..................................................................................................... 5 

DoD Instruction 1332.45, 

 https://perma.cc/9FNU-ZR89 ............................................................................................... 4, 34 

DoD Instruction 6205.02 (July 23, 2019), 

 https://perma.cc/8HLA-AXQB ............................................................................................. 4, 37

DoD Instruction 6025.19, 

 https://perma.cc/TR75-JRVD ..................................................................................................... 4 

Joint Explanatory Statement to Accompany the [NDAA] for Fiscal Year 2022, 

https://perma.cc/FL8K-PFUU ................................................................................................... 33 

S. Rep. No. 103-111 (1993), as reprinted in 1993 U.S.C.C.A.N. 1892 ........................................ 28 

Sec’y of Def. Mem. (Aug. 9, 2021), 

 https://perma.cc/S4R3-2VZW .............................................................................................. 4, 29 

Sec’y of Def. Mem. (Aug. 24, 2021), 

 https://perma.cc/N759-S758 ........................................................................................... 4, 29, 41 

Stanley Lemon, et al., Protecting Our Forces: Improving Vaccine Acquisition and Availability in 

the U.S. Military, Nat’l Acad. Press, 2002, 

 https://perma.cc/E545-TQ9G ...................................................................................................... 3 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 14 of 59 PageID 813
INTRODUCTION 

In warfare, disease has historically accounted for more service member deaths than 

battlefield injuries, and a healthy fighting force has long been a key part of America’s military 

readiness. Decades before the COVID-19 pandemic, the Department of Defense (“DoD”) 

implemented an immunization program requiring that all service members obtain at least nine 

immunizations, and up to an additional eight depending on circumstances. Amid a deadly 

pandemic that has killed over one million Americans and seeking to protect the health and 

readiness of the Armed Forces by reducing the risk of hospitalizations and deaths among service 

members, DoD added vaccination against COVID-19 to this long list of immunizations required 

for service members. 

Plaintiffs, three members of the Coast Guard, allege that the military’s COVID-19 

vaccination requirement is violates the Religious Freedom Restoration Act (“RFRA”), the Free 

Exercise Clause of the First Amendment, and the Administrative Procedure Act (“APA”). See

Compl. ¶¶ 279–465, ECF No. 1. Plaintiffs seek to certify a class of other Coast Guard members 

who have unsuccessfully sought a religious exemption from the COVID-19 vaccination 

requirement and a class-wide preliminary injunction preventing Defendants from enforcing that 

requirement against the class members or taking adverse action against them for bringing this 

lawsuit or seeking a religious exemption. See ECF No. 5 (“Pls.’ Br.”). 

Plaintiffs’ request for class certification disregards the basic principle that RFRA claims 

require individualized determinations about whether the military’s vaccination requirement 

substantially burdens each individual service member’s exercise of religion; whether the military 

has a compelling interest in requiring specific service members to be vaccinated; and whether there 

are less restrictive but equally effective alternatives to vaccination for specific service members. 

These questions require assessing each service member’s unique religious beliefs, job functions, 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 15 of 59 PageID 814
2 

and other circumstances. Consequently, Plaintiffs cannot meet the commonality and typicality 

criteria of Rule 23(a), nor can they satisfy Rule 23(b)(2)’s requirement that injunctive relief be 

appropriate for the class as a whole. 

Plaintiffs also fail to establish any of the grounds required for a preliminary injunction 

either as individuals of on behalf of a certified class. First, their claims are not likely to succeed on 

the merits. As an initial matter, the claims are not justiciable. Plaintiffs lack ripe claims because 

they have not received a final decision concerning any discipline or adverse action based on their 

failure to obey their vaccination orders. And Plaintiffs may still avail themselves of extensive 

administrative procedures for challenging disciplinary actions that have been or may yet be taken 

in connection with the COVID-19 vaccination requirement. Moreover, judicial review in this case 

would require this Court to improperly oversee and manage discretionary decisions about military 

personnel matters. 

Even if the Court could reach the substance of Plaintiffs’ claims, those claims fail on the 

merits. The vaccination requirement satisfies RFRA and the First Amendment because the Coast 

Guard has extraordinarily compelling interests in military readiness and the health and readiness 

of its forces—Plaintiffs included—and no less restrictive measure serves those interests equally 

well as vaccination. These interests are even more magnified when considered in the context of a 

class-wide injunction. Neither have Plaintiffs demonstrated irreparable injury nor shown that the 

balance of equities and public interest weigh in their favor. 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 16 of 59 PageID 815
3 

BACKGROUND 

A. The COVID-19 Pandemic 

The virus SARS-CoV-2 causes a respiratory disease known as COVID-19 that can result 

in severe symptoms and death.1

 It has infected more than 96 million Americans and has killed over 

one million.2

 At least 96 service members have died from COVID-19, and over 400,000 have 

become ill. Ex. 1, Decl. of Maj. Scott Stanley ¶ 3, App. 2–3. Of those 96 members, only two were 

fully vaccinated. Id. Many otherwise healthy service members who were infected suffered severe 

illness, required hospitalization, or developed “long-haul” COVID-19, potentially affecting their 

long-term ability to perform their missions. Ex. 2, Decl. of Col. Tanya Rans ¶¶ 9–11, App. 19–27. 

B. Military Vaccination Directives 

Vaccines have played a longstanding and important role in America’s military readiness. 

Military deaths due to infectious diseases outnumbered those due to direct combat injuries until 

World War II, when vaccines became widespread. Stanley Lemon, et al., Protecting Our Forces: 

Improving Vaccine Acquisition and Availability in the U.S. Military at 3, Nat’l Acad. Press, 2002, 

https://perma.cc/E545-TQ9G. Even more recently, disease accounted for nearly 70% of U.S. Army 

hospital admissions during the Persian Gulf War. Id. at 10, Fig. 1-1. Military-mandated vaccines 

mitigate this threat and reduce infectious disease morbidity and mortality among military 

personnel. Id. at 10–11 (highlighting historical use of vaccines in armed conflict). The U.S. military 

instituted its first immunization program in 1777 when General Washington directed the 

inoculation of the Continental Army for smallpox. Id. at 12, Table 1- 1. And for the past several 

decades, it has implemented various enduring or situational inoculation measures to maintain the 

1

 Centers for Disease Control and Prevention (“CDC”), COVID-19, https://perma.cc/A9D5-

AUHV. The Court may take judicial notice of factual information available on government 

websites. See Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322–23 (2007). 

2

 CDC, COVID Data Tracker (updated Oct. 4, 2022), https://perma.cc/E2KS-M9LB. 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 17 of 59 PageID 816
4 

readiness of its force. Bryce H. P. Mendez, Cong. Rsch. Serv., IF11816, Defense Health Primer: 

Military Vaccinations (updated Aug. 6, 2021), https://crsreports.congress.gov/product/pdf/IF/ 

IF11816/2. 

DoD’s current immunization program is governed by DoD Instruction (“DoDI”) 6205.02 

(July 23, 2019), https://perma.cc/8HLA-AXQB. Even prior to COVID-19, nine vaccines were 

required for all service members, including the annual influenza vaccine, and eight other 

vaccinations are required when certain elevated risk factors are present, such as deployment to 

certain parts of the world. See AR 40–562, Table D-1 (Feb. 16, 2018), https://perma.cc/82YEEA3U. It is part of DoD’s overarching requirement that each service member be medically ready 

for service and mobilization. See DoDI 6025.19, https://perma.cc/TR75-JRVD. DoD has 

determined that “[t]o maximize the lethality and readiness of the joint force, all Service members 

are expected to be deployable.” DoDI 1332.45 ¶ 1.2, https://perma.cc/9FNU-ZR89. DoD generally 

aligns its immunization requirements and eligibility determinations for service members with 

recommendations from the CDC and its Advisory Committee on Immunization Practices. DoDI 

6205.02 ¶ 1.2, https://perma.cc/8HLA-AXQB. 

On August 9, 2021, the Secretary of Defense, noting the impact of COVID-19 on military 

readiness and concluding that vaccination “will ensure we remain the most lethal and ready force 

in the world,” announced that he would add the COVID-19 vaccine to the list of vaccines required 

for all service members by the earlier of mid-September 2021 or upon approval by the Food and 

Drug Administration (“FDA”). Sec’y of Def. Mem. (Aug. 9, 2021), https://perma.cc/S4R3-2VZW. 

On August 24, 2021, one day after FDA announced the approval of the Pfizer vaccine, the 

Secretary directed the Secretaries of the Military Departments to immediately ensure that all 

members of the Armed Forces were fully vaccinated against COVID-19. Sec’y of Def. Mem. (Aug. 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 18 of 59 PageID 817
5 

24, 2021), https://perma.cc/N759-S758. Only vaccines that have received full licensure from the 

FDA are required, but service members can satisfy the requirement by voluntarily receiving a 

vaccine under FDA EUA or World Health Organization Emergency Use Listing. Id. Those with a 

previous SARS-CoV-2 infection who have not received a COVID-19 vaccine are not considered 

fully vaccinated. Id.

C. The Coast Guard’s Implementation of the COVID-19 Vaccination Directive 

Shortly after the Secretary of Defense issued his vaccine directive, the Coast Guard issued 

its initial implementing guidance, directing all active-duty and Ready Reserve members to become 

fully vaccinated against COVID-19 and including processes for seeking exemptions. See CG 

COMDTINST M6230.4G, ch. 2-6, https://perma.cc/82YE-EA3U; Ex. 3, Decl. of Rear Admiral 

Eric C. Jones ¶ 4. 

Exemptions. As with other vaccination requirements, Coast Guard guidance establishes 

processes for granting medical, administrative, and religious exemptions from its COVID-19 

vaccination requirement. Service members are not required to receive a COVID-19 vaccine if they 

have been granted an exemption or have an exemption request or appeal pending. Ex. 3 ¶ 44, App. 

78–79. Service members may be granted a medical exemption if, for example, they currently have 

COVID-19, are pregnant, or are allergic to an ingredient in the vaccine. Id. ¶¶ 14, 17, App. 67–68. 

Service members who are retiring or separating from military service no later than October 1, 

2022, may be granted an administrative exemption. Id. ¶ 20, App. 68–69. Service members also 

may seek a religious accommodation by submitting a written request to the appropriate high-level 

approval authority. Id. ¶ 21, App. 69. Religious accommodation requests ( “RARs”) undergo a 

multistage review process before the approval authority makes a final decision whether to approve 

or deny the request. Id. ¶¶ 22–34, App 69–74. If a request is denied, the service member may 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 19 of 59 PageID 818
6 

appeal to the Coast Guard’s final appellate authority, who renders a final decision on the RAR. Id.

¶ 35, App. 74.3 

Refusal to vaccinate. If an exemption request is ultimately disapproved and the service 

member refuses to comply with his or her command’s order to receive the COVID-19 vaccine, 

commanders may take a variety of actions. Id. ¶¶ 38–39, App. 75–76. Active-duty service members 

who refuse to comply with the COVID-19 vaccination requirement, absent an exemption, will be 

subject to initiation of administrative discharge proceedings. Id. ¶ 39, App. 75–76. For officers, 

the administrative discharge process takes at least six to nine months and may result in the service 

member being retained. Id. ¶ 42, App. 76–77. The decision to discharge a service member is not 

final until the final discharge order is issued—until that point, the separation authority is not 

required to follow any discharge recommendation. See Roberts v. Roth, --- F. Supp. 3d ---, 2022 

WL 834148, at *4 (D.D.C. Mar. 21, 2022). 

Even if a service member is discharged at the conclusion of the administrative proceedings, 

further military remedies remain available. The member may, for instance, appeal the 

characterization of his discharge to a Discharge Review Board, which has the authority to review 

administrative discharges. CG COMDTINST M1000.4 § 1.B.36.h (Aug. 2018), 

https://perma.cc/PQW4-K38G. The member may also request correction of his military record 

through the Board for Correction of Military Records. Id.

3

 The approval authority must make a decision on a religious accommodation request within 

30 business days of the date the service member submitted the request, and the Deputy for 

Personnel Readiness must reach a final decision on any appeal within 30 business days from the 

date the service member provided notice of intent to appeal. Ex. 3 ¶ 36, App. 74–75. These 

timelines may not be met if there is a large influx of religious accommodation requests. Id. Even 

if the timelines are not met, a service member faces no harm, as he or she is temporarily exempted 

from the immunization requirement while the request or appeal is pending. Id. ¶ 37, App. 75. 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 20 of 59 PageID 819
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D. Other Litigation Regarding the Military’s Vaccination Requirement 

In addition to this case, there have been numerous other challenges to the military’s 

vaccination requirement brought in district courts across the country. At least fifteen other courts 

have either rejected arguments for preliminary injunctive relief against the military or dismissed 

the service members’ claims entirely.4

 In Dunn v. Austin, a RFRA case where the district court 

denied the preliminary-injunction motion, the Supreme Court denied the member’s application for 

an injunction pending appeal. Dunn v. Austin, 142 S. Ct. 1707 (2022) (mem.). 

Six courts have preliminarily enjoined DoD and the respective service from applying 

COVID-19 vaccination requirements or taking adverse action against plaintiffs in those cases.5

The government strongly disagrees with those decisions and has taken an appeal from four of 

4

 See Miller v. Austin, --- F. Supp. 3d ---, 2022 WL 3584666 (D. Wyo. Aug. 22, 2022); Knick 

v. Austin, No. 22-1267, 2022 WL 2157066 (D.D.C. June 15, 2022); Robert v. Austin, No. 21-cv2228, 2022 WL 103374 (D. Colo. Jan. 11, 2022), appeal filed, No. 22-1032 (10th Cir. Feb. 2, 

2022); Church v. Biden, 573 F. Supp. 3d 118 (D.D.C. 2021); Navy SEAL 1 v. Austin, --- F. Supp. 

3d ----, 2022 WL 1294486 (D.D.C. Apr. 29, 2022), appeal filed, No. 22-5114 (D.C. Cir. May 5, 

2022); Creaghan v. Austin, --- F. Supp. 3d ---, 2022 WL 1500544 (D.D.C. May 12, 2022), appeal 

filed, No. 22-5135 (D.C. Cir. May 20, 2022); Thomas Short v. Berger, --- F. Supp. 3d ---, 2022 

WL 1203876 (D. Ariz. Apr. 22, 2022), appeal filed, No. 22-15755 (9th Cir. May 18, 2022); Vance 

v. Wormuth, No. 3:21-cv-730, 2022 WL 1094665 (W.D. Ky. Apr. 12, 2022); Mark Short v. Berger, 

No. 22-cv-1151, 2022 WL 1051852 (C.D. Cal. Mar. 3, 2022), appeal dismissed, No. 22-55339, 

2022 WL 2421096 (9th Cir. May 17, 2022); Roth v. Austin, --- F. Supp. 3d ---, 2022 WL 1568830, 

at *31 (D. Neb. May 18, 2022), appeal filed, No. 22-2058 (8th Cir. May 20, 2022); Ex. 9, Dunn v. 

Austin, No. 22-cv-288 (E.D. Cal. Feb. 22, 2022) (“Dunn Op.”), App. 80; Doe #1-#14 v. Austin, 

572 F. Supp. 3d 1224 (N.D. Fla. 2021); Abbott v. Biden, --- F. Supp. 3d ---, 2022 WL 2287547, at 

*7 (E.D. Tex. June 24, 2022), appeal filed, No. 22-40399 (5th Cir. June 29, 2022); Oklahoma v. 

Biden, 577 F. Supp. 3d 1245 (W.D. Okla. 2021); Guettlein v. U.S. Merch. Marine Acad., 577 F. 

Supp. 3d 96 (E.D.N.Y. 2021). 

5

 See Navy SEALs 1–26 v. Biden, 578 F. Supp. 3d 822 (N.D. Tex. 2022); Navy SEAL 1 v. 

Biden, No. 8:21-cv-2429, 2022 WL 483832 (M.D. Fla. Feb. 2, 2022) (Merryday, J.); Air Force 

Off. v. Austin, --- F. Supp. 3d ---, 2022 WL 468799 (M.D. Ga. Feb. 15, 2022); Poffenbarger v. 

Kendall, --- F. Supp. 3d ----, 2022 WL 594810 (S.D. Ohio Feb. 28, 2022); Doster v. Kendall, ---

F. Supp. 3d ---, 2022 WL 982299 (S.D. Ohio Mar. 31, 2022); Col. Fin. Mgmt. Off. v. Austin, No. 

8:22-cv-01275 (M.D. Fla. Aug. 18, 2022) (Merryday, J.) (enjoining the Marine Corps after 

separating the case from Navy SEAL 1 and creating a new case number). 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 21 of 59 PageID 820
8 

them.6

 In Austin v. Navy SEALs 1–26, the Supreme Court granted the government’s application for 

a partial stay of the district court’s injunction. 142 S. Ct. 1301, 1301 (2022). Similarly, in Navy 

SEAL 1, the Eleventh Circuit stayed the district court’s injunction pending appeal “insofar as it 

precludes the Navy from considering the plaintiffs’ vaccination status in making deployment, 

assignment, and other operational decisions.” No. 22-10645 (11th Cir. Mar. 30, 2022). 

E. This Action 

On September 16, 2022, Plaintiffs, three Coast Guard members, sued, on behalf of 

themselves and a purported class, officials with the Department of Defense and Coast Guard. They 

allege that that the Coast Guard’s COVID-19 vaccination requirement violates RFRA, the First 

Amendment, and the APA. See Compl. ¶¶ 279–465. Each Plaintiff refused to comply with his 

commander’s orders to become vaccinated against COVID-19, alleging that vaccination conflicts 

with his or her religious beliefs. Id. ¶¶ 127–29.7

 Plaintiffs do not allege that the Coast Guard has 

concluded involuntary separation proceedings for any of them based on their refusal to vaccinate. 

With their complaint, Plaintiffs filed a motion for class certification and for a class-wide 

preliminary injunction, seeking to enjoin Defendants (i) from enforcing the military’s COVID-19 

vaccinations requirements, and (ii) “from taking any adverse action against any Plaintiffs of any 

member of the Class” for filing this lawsuit or seeking a religious accommodation from the 

6

 The district courts in Navy SEALs 1-26 and Doster subsequently entered class-wide 

preliminary injunctions against the Navy and the Air Force, respectively, which the government 

has also appealed. Navy SEALs 1–26 v. Austin, --- F. Supp. 3d ---, 2022 WL 1025144, at *9 (N.D. 

Tex. Mar. 28, 2022), appeal filed, No. 22-10534 (5th Cir. May 31, 2022); Doster v. Kendall, No. 

1:22-cv-84, 2022 WL 2974733, at *1 (S.D. Ohio July 27, 2022). 

7

 Notwithstanding their religious beliefs, Plaintiffs Jackson and Marcenelle say that they 

went to a clinic to receive a COVID-19 vaccine as ordered but refused only because they did not 

believe the vaccines available were fully approved by the FDA. See Compl. ¶¶ 220, 231–32. 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 22 of 59 PageID 821
9 

military’s vaccination requirement. ECF No. 4 at 2. The motion for preliminary injunction argues 

only the RFRA and First Amendment claims, not the APA claims. 

LEGAL STANDARDS 

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. 

Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see also Miss. Power & Light Co. v. United 

Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). To justify this “drastic remedy,” a plaintiff 

must make a “clear showing” that (1) they have a substantial likelihood of success on the merits; 

(2) they will suffer irreparable harm without the requested injunction; (3) the balance of equities 

tips in their favor; and (4) preliminary relief serves the public interest. Mazurek v. Armstrong, 520 

U.S. 968, 972 (1997). Failure to demonstrate any one of these elements requires denial of 

preliminary relief. Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989). 

Additionally, courts extend great deference to the military in reviewing the “complex, 

subtle, and professional decisions as to the composition, training, equipping, and control of a 

military force,” which are “essentially professional military judgments.” Winter, 555 U.S. at 24 

(citation omitted); accord Farmer v. Mabus, 940 F.2d 921, 923 (5th Cir. 1991) (“[J]udicial 

intrusion into military matters is to be most cautiously . . . approached.”). As the Supreme Court 

has repeatedly emphasized, “it is difficult to conceive of an area of governmental activity in which 

the courts have less competence.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see also Schlesinger 

v. Ballard, 419 U.S. 498, 510 (1975) (“[I]t is the primary business of armies and navies to fight or 

be ready to fight wars should the occasion arise,” and the “responsibility for determining how best 

our Armed Forces shall attend to that business rests with Congress” and “the President.”); Rostker 

v. Goldberg, 453 U.S. 57, 66 (1981); Goldman v. Weinberger, 475 U.S. 503, 507 (1986). Such 

deference extends to constitutional claims and military decisions about the health and welfare of 

the troops. See, e.g., Solorio v. United States, 483 U.S. 435, 448 (1987); Lindenau v. Alexander, 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 23 of 59 PageID 822
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663 F.2d 68, 70–74 (10th Cir. 1981); Thomas Short, 2022 WL 1203876, at *13; Mark Short, 2022 

WL 1051852, at *7–8; Ex. 9, Dunn Op. at 36, 46–48, App. 115, 125–27. 

ARGUMENT 

I. THE COURT SHOULD NOT CERTIFY THE CLASS. 

Plaintiffs move for certification of a class consisting of every member of the Coast Guard 

who has requested and been denied a religious exemption. To obtain class certification, Plaintiffs 

must show that their proposed class satisfies the four requirements of Rule 23(a)—“numerosity, 

commonality of issues, typicality of the class representatives’ claims,” and adequacy of the named 

plaintiffs as class representatives, Ahmad v. Old Republic Nat’l Title Ins. Co., 690 F.3d 698, 702 

(5th Cir. 2012)—and that it satisfies the requirements of one of the provisions of Rule 23(b). 

Plaintiffs fail to make these showings. 

A. Plaintiffs Fail to Identify Common Issues to Advance Their RFRA Claims. 

To establish commonality, plaintiffs must identify “questions of law or fact common to the 

class,” Fed. R. Civ. P. 23(a)(2), including “common answers apt to drive the resolution of the 

litigation.” Flecha v. Medicredit, Inc., 946 F.3d 762, 767 (5th Cir. 2020) (quoting Wal-Mart Stores, 

Inc. v. Dukes, 564 U.S. 338, 350 (2011)). Plaintiffs’ claims must include a central issue that can be 

resolved “in one stroke,” and plaintiffs must show more than simply that class members “have all 

suffered a violation of the same provision of law.” Id. (quotations omitted). “[M]ere allegations of 

systemic violations of the law . . . will not automatically satisfy Rule 23(a)’s commonality 

requirement.” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 844 (5th Cir. 2012) (quotations 

omitted). 

Plaintiffs are unable to identify common issues “central to the validity” of the class 

members’ RFRA claims. Flecha, 946 F.3d at 767. RFRA claims, by their nature, are individualized. 

The Fifth Circuit and the Supreme Court have emphasized that RFRA claims “contemplate an 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 24 of 59 PageID 823
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inquiry more focused than [a] categorical approach.” Gonzales v. O Centro Espírita Beneficente 

Uniao do Vegetal, 546 U.S. 418, 430 (2006); Tagore v. United States, 735 F.3d 324, 331 (5th Cir. 

2013) (“A ‘categorical approach’ is insufficient.”). A court must “scrutiniz[e] the asserted harm of 

granting specific exemptions to particular religious claimants,” looking to “the marginal interest” 

in enforcing a policy against a particular person. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 

682, 726-27 (2014) (quotations omitted). RFRA claims are thus fact-intensive and require “caseby-case” adjudication, turning on a plaintiff’s precise beliefs and the particulars of the 

government’s action. Brown v. Collier, 929 F.3d 218, 230 (5th Cir. 2019) (quotation omitted). Both 

the government’s compelling interest with respect to a particular claimant, and the availability of 

less restrictive alternatives are “core component[s]” of a RFRA claim that must be considered 

claim-by-claim. Tucker v. Collier, 906 F.3d 295, 301-02 (5th Cir. 2018); see also Davis v. Davis, 

826 F.3d 258, 272 (5th Cir. 2016) (each claim turns on “the specific characteristics of each 

[p]laintiff”). Given their highly individualized nature, RFRA claims do not present common issues 

and are not amenable to class-wide adjudication. The claims here are no exception. Adjudicating 

those claims requires an individualized assessment of each service member’s religious beliefs, 

particular military duties, and other unique circumstances. 

Plaintiffs assert that their claims present common questions about the Coast Guard’s review 

of administrative requests for religious accommodation, which they claim was not sufficiently 

individualized. Pls.’ Br. at 9–10. But RFRA does not entitle plaintiffs to any particular process 

from the Coast Guard. Judicial relief under RFRA can be obtained only by a “person whose 

religious exercise has been burdened in violation of [RFRA],” 42 U.S.C. § 2000bb-1(c). No such 

RFRA violation has occurred if the Coast Guard can “demonstrate[]” in court that applying its 

policy furthers a compelling governmental interest and is the least restrictive means of doing so. 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 25 of 59 PageID 824
12 

Id. § 2000bb-1(b)(1)-(2). Thus, whether class members were all treated similarly in the Coast 

Guard’s internal administrative process is not a common question relevant to resolving the 

disposition of their RFRA claims. Those claims instead turn on whether the Coast Guard can prove 

that it has a compelling interest in applying its vaccination requirement to “the particular 

claimant[s] whose sincere exercise of religion is being substantially burdened.” Hobby Lobby, 573 

U.S. at 726 (citation omitted); see also, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1275-76, 1278-

81 (2022) (contrasting the government’s assessment of a religious claimant’s request in an 

administrative process versus the government’s showing in litigation). The Coast Guard has 

established that interest and the lack of viable alternatives with respect to each individual plaintiff 

here, see pp. 30–38 infra; but certifying a class would prevent the Coast Guard from offering—

and the Court from considering—the claimant-specific showing that RFRA requires for the other 

members of the purported class. 

Plaintiffs ignore the core issues that their proposed class cannot address. For one, Plaintiffs 

cannot establish that the vaccination requirement substantially burdens sincerely held religious 

beliefs across the class. Although sincerity is generally established “easily,” Moussazadeh v. Tex. 

Dep’t of Crim. Just., 703 F.3d 781, 791–92 (5th Cir. 2012), it nevertheless must be established to 

make out a RFRA violation, 42 U.S.C. § 2000bb-1(a). Courts reviewing a RFRA claim must 

carefully assess a claimant’s religious beliefs, see Ramirez, 142 S. Ct. at 1277–78, and service 

members object to the vaccination requirement for a range of reasons. Although the Coast Guard 

has not contested the sincerity of service members’ beliefs at this stage, each service member must 

establish that the vaccination requirement substantially burdens their sincere religious beliefs. 

Class certification would improperly group service members who have made that showing 

alongside those whose opposition to vaccination is grounded in something other than sincere 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 26 of 59 PageID 825
13 

religious beliefs, as well as alongside those whose beliefs are not substantially burdened by 

particular vaccines. 

RFRA also requires an individualized inquiry into each service member’s circumstances to 

assess the Coast Guard’s compelling interest in ensuring that particular service member be 

vaccinated, and the availability of any less restrictive alternatives to vaccination that would be 

equally effective for that service member. O Centro, 546 U.S. at 430-31. The relevant question in 

the compelling-interest analysis is not whether the government has an interest in “enforcing . . . 

policies generally,” but whether it has “an interest in denying an exception” to a specific claimant. 

Fulton v. City of Phila., 141 S. Ct. 1868, 1881 (2021); see also Roth, 2022 WL 1568830, at *18 

(similar, in challenge to military vaccination requirement). And that interest must be weighed 

against the availability of less-burdensome alternatives for that claimant. Tucker, 906 F.3d at 305-

06; Holt v. Hobbs, 574 U.S. 352, 365 (2015). It is a “difficult question” of “[h]ow much risk of 

disruption or interference” the government must accommodate for a specific religious-liberty 

claim. Ramirez, 142 S. Ct. at 1287-88 (Kavanaugh, J., concurring); see also id. at 1281 (majority 

op.) (considering numerous alternatives for a claimant’s circumstances). 

Plaintiffs insist that there are common questions related to compelling interest and lessrestrictive means, namely questions about the ratio of vaccinated to unvaccinated service members 

in the Coast Guard, the effectiveness of the vaccines at reducing transmission, and CDC guidance 

about preventing transmission. Pls.’ Br. at 9. Critically, however, these issues relate solely to the 

Coast Guard’s interest in preventing the transmission of COVID-19 and do not touch upon the 

compelling interest in preventing individual service members from contracting COVID-19. The 

Court cannot award an individual service member relief under RFRA, let alone a class, without a 

“to the person” analysis of each of the Coast Guard’s asserted compelling interests, which for many 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 27 of 59 PageID 826
14 

if not all class members will involve preventing that service member from experiencing symptoms 

COVID-19. See pp. 30–32 infra. And the Coast Guard’s interest in vaccinating a particular service 

member may depend upon individualized factors, such as how contracting COVID-19 would 

adversely affect that service member’s mission accomplishment at the individual, unit, and 

organizational levels. See p. 30 infra. And whether a less-burdensome alternative to vaccination 

would be equally effective for a particular service member is likewise highly dependent on the 

particular facts applicable to the individual requester—including specific duty assignments and 

type of work. See pp. 36–38 infra. Class-wide disposition would ignore these questions and 

therefore not satisfy RFRA’s demand for a “to the person” analysis of compelling interest. 

Respectfully, cases like Navy SEALs 1–26 and Doster, upon which Plaintiff rely, are 

erroneous. In Navy SEALs 1–26, a district court certified a class on the assumption that (purported) 

deficiencies in the Navy’s process for considering requests for religious exemption supplied a 

common issue unifying the RFRA claims of all class members. In doing so, the court committed 

the same error for which it faulted the Navy. By treating service members’ entitlement to relief 

under RFRA as an issue capable of resolution class-wide, that court failed to separately evaluate 

each service member’s claim—contradicting its own reasoning in its prior injunction, where it 

explained that RFRA requires considering “the asserted harm of granting specific exemptions to 

particular religious claimants.” Navy SEALs 1-26, 578 F. Supp. 3d at 836 (quotations omitted). 

Despite previously (and correctly) articulating the need for plaintiff-specific inquiries, id. at 836–

87, the court inexplicably asserted that it need not perform that individualized analysis in certifying 

a class because “in the Navy’s own analysis, such distinctions make no difference,” Navy SEALs 

1-26, 2022 WL 1025144, at *7. There was no basis for this change in course, which inappropriately 

relied on the Navy’s alleged failure to perform a sufficiently individualized assessment of each 

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15 

service member’s exemption request as an excuse for the court to ignore RFRA’s requirement that 

claims be assessed individually. Because RFRA calls for de novo judicial review, not review of 

prior administrative action, see 42 U.S.C. § 2000bb-1(c), the supposed inadequacies in the 

administrative process provided no basis for the court to conclude that class members’ disparate 

RFRA claims can properly be adjudicated simultaneously. 

Plaintiffs also rely on Doster, urging the Court to certify a class based on a purported 

“general policy of discrimination” practiced by the Coast Guard. Pls.’ Br. at 9–10. But class 

certification on that theory would need to be supported by “[s]ignificant proof” that the Coast 

Guard “operated under a policy of discrimination.” Wal-Mart, 564 U.S. at 353. Plaintiffs provide 

no such proof. They point to a recent report by the Inspector General of the Department of Defense, 

but the Inspector General’s report says nothing about the Coast Guard, which is part of the 

Department of Homeland Security and therefore outside of the report’s purview. That leaves only 

Plaintiffs’ contention that the Coast Guard has granted only a small number of religious exception 

requests. See Pls.’ Br. at 3. But that evidence—statistics and various anecdotes—is 

indistinguishable from the evidence the Supreme Court held “does not suffice” to establish 

commonality. Wal-Mart, 564 U.S. at 357–58. And here the Coast Guard has even presented 

contrary evidence in the form of a declaration stating in no uncertain terms that “there is no single 

policy or practice of approving or denying religious accommodation requests, including with 

respect to the COVID-19 vaccine.” Ex. 3 ¶ 22, App. 69. In any event, even if Plaintiffs had shown 

significant proof of a general policy of discrimination, it would not entitle them to class 

certification in the RFRA context for the reasons described above: RFRA requires a de novo, to 

the person analysis to determine if there has been an unlawful burden on religious practice and 

does not create a right to any particular procedure for seeking an exemption. Indeed, in denying a 

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16 

stay of the Doster injunction, the Sixth Circuit recognized that any claims other than those based 

on a purported systemic policy of discrimination (which, again, is neither proven nor relevant here) 

would plainly be inappropriate for class-wide treatment. See Doster v. Kendall, 48 F.4th 608 (6th 

Cir. 2022) (“We agree that most RFRA claims require that kind of individualized analysis; and we 

have no quarrel with the Department's contention that such an analysis could not be conducted 

class-wide here.”).

B. Plaintiffs Fail to Demonstrate that Their Claims Are Typical of the Class. 

To satisfy the typicality requirement, “the claims or defenses of the parties [must be] typical 

of the claims or defenses of the class.” James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001) 

(quoting Fed. R. Civ. P. 23(a)(3)). The typicality requirement “focuses on the similarity between 

the named plaintiffs’ legal and remedial theories and the theories of those whom they purport to 

represent,” id. (quotations omitted), without which a court cannot “attribute a collective nature to 

the challenged conduct.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996) (quoting 1 

William B. Rubenstein, Newberg on Class Actions § 3:29 (5th ed.)). Plaintiffs have not shown that 

their claims are typical of other service members’ claims, especially given the unique exhaustion 

defenses applicable to the named Plaintiffs. 

As noted, pp. 10–14 supra, a detailed examination of each service member’s particular 

circumstances is essential for assessing a RFRA claim. While “factual differences” in other 

contexts would not necessarily render the named plaintiffs’ claims atypical of the class, Stirman v. 

Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002) (quotations omitted), those differences are material 

to resolving plaintiffs’ RFRA claims, which require “scrutiniz[ing] the asserted harm of granting 

specific exemptions to particular religious claimants,” Ali v. Stephens, 822 F.3d 776, 785-86 (5th 

Cir. 2016) (quotation omitted). That makes Plaintiffs’ claims atypical of the class. Stirman, 280 

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F.3d at 562 (factual variations in plaintiffs’ claims precluded finding of typicality); General Tel. 

Co. of Sw. v. Falcon, 457 U.S. 147, 151, 158-59 (1982) (district court wrongly concluded that one 

person’s claims were typical of “all hourly Mexican American employees”). Plaintiffs again rely 

heavily on Navy SEALs 1–26, but that court’s commonality analysis hinged on a conclusion that 

that “in the Navy’s own analysis [of service members’ requested exemptions], such distinctions 

make no difference.” 2022 WL 1025144, at *7. But again, the disposition of exemption requests 

has no bearing on the Court’s de novo analysis of plaintiffs’ RFRA claims, much less does it 

provide any ground for the court to ignore the typicality requirement in Rule 23(a)(3). 

Plaintiffs’ claims are also not typical of the class’s because they are subject to “unique 

defense[s].” Beck v. Maximus, Inc., 457 F.3d 291, 301 (3d Cir. 2006) (collecting authorities). As 

explained below, pp. 24–25 infra, none of the named plaintiffs had fully exhausted their 

intramilitary remedies, rendering their claims distinctly unripe and nonjusticiable—and thus not a 

fair representation of other service members who fully pursue administrative remedies. That 

Plaintiffs have not received a final decision from the Coast Guard renders them “a fortiori not 

typical of” the class. Machella v. Cardenas, 653 F.2d 923, 926 (5th Cir. Unit A Aug. 1981). 

C. Plaintiffs Fail to Satisfy the Requirements of Rule 23(b)(2). 

Plaintiffs seek to certify a class under Rule 23(b)(2), contending that the Coast Guard acted 

“on grounds that apply generally to the class.” Certification under Rule 23(b)(2) is permissible 

“only when a single injunction . . . would provide relief to each member of the class.” Wal-Mart, 

564 U.S. at 360. Plaintiffs’ requested relief “must be specific,” Maldonado v. Ochsner Clinic 

Found., 493 F.3d 521, 524 (5th Cir. 2007), to be applicable to the entire class, Yates v. Collier, 868 

F.3d 354, 366-67 (5th Cir. 2017). As explained, pp. 10–14 supra, RFRA requires individually 

analyzing a policy’s alleged burden on a specific person’s exercise of religion, the government’s 

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18 

compelling interest in implementing the challenged policy to that person, and the availability of 

less restrictive and equally effective alternatives. Just as the need to resolve such questions 

individually precludes any finding of commonality or typicality, it likewise precludes any finding 

that the claims of more than 1,000 Coast Guard service members could be adjudicated en masse 

under Rule 23(b)(2). As the Fifth Circuit has held, a class “alleg[ing] individual injuries that are 

not uniform across the class[] . . . lacks cohesiveness to proceed as a 23(b)(2) class.” Stukenberg, 

675 F.3d at 847; see also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 414 (5th Cir. 1998) 

(explaining that need for “specific . . . inquiry into the varying circumstances and merits of each 

class member’s individual case” likely precludes class certification under Rule 23(b)(2)). 

In Wal-Mart v. Dukes, for example, plaintiffs claimed that Wal-Mart harmed them in 

essentially the same way by repeatedly violating Title VII’s prohibition on sex discrimination, but 

the Supreme Court held that those claims were not suitable for certification under Rule 23(b)(2) 

because the success of each plaintiff’s Title VII claim depended on the specific circumstances 

surrounding each employment action. 564 U.S. at 366. Wal-Mart’s reasoning with respect to the 

individualized nature of Title VII claims applies with at least equal force to plaintiffs’ wide-ranging 

RFRA claims, which depend on diverse factual circumstances peculiar to each service member. In 

similar circumstances, this Court has held that “individualized issues here overwhelm class 

cohesiveness.” Maldonado, 493 F.3d at 524. 

Even if the merits of every class member’s RFRA claim could be adjudicated “in one 

stroke,” Wal-Mart, 564 U.S. at 350, RFRA would entitle each person to individualized relief, 

depending on miliary assignment, deployment status, and responsibilities. But service members 

have sought to vindicate their own interests by separately litigating claims in other courts (also on 

behalf of purported, overlapping classes of Coast Guard service members). See Bazzrea v. 

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19 

Mayorkas, No. 3:22-cv-265 (S.D. Tex. filed July 25, 2022); Pilot v. Austin, No. 8:22-cv-1278 

(M.D. Fla. instituted Oct. 15, 2021). But a class certification here would render those other suits 

essentially meaningless given that a Rule 23(b)(2) class “provides for binding litigation on all class 

members,” Lemon v. Int’l Union of Operating Eng’rs, 216 F.3d 577, 580 (7th Cir. 2000). Indeed, 

class members would equally be bound by an adverse ruling on a class-wide basis, barring certain 

service members’ otherwise meritorious claims. See Randall v. Rolls-Royce Corp., 637 F.3d 818, 

820-21 (7th Cir. 2011); United States v. U.S. Steel Corp., 520 F.2d 1043, 1048 (5th Cir. 1975) 

(requiring “careful[]” consideration of 23(b)(2) class certification because “of the consequences 

of binding such a group to a final judgment”). 

Plaintiffs again rely heavily on Navy SEALs 1–26, which certified a similar class after 

concluding—without any meaningful analysis—that the class members “have all been harmed in 

essentially the same way.” 2022 WL 1025144, at *9. But the court was required to identify more 

than simply “a common failure by the defendant” and the potential for benefit to all class members 

“if the defendant is compelled to . . . desist.” Prantil v. Arkema Inc., 986 F.3d 570, 581 (5th Cir. 

2021). An issue is not amenable to class-wide resolution “just because the district court, without 

explanation, says it is.” Chavez v. Plan Benefit Servs., Inc., 957 F.3d 542, 549 (5th Cir. 2020). The 

court nowhere explained how thousands of service members’ RFRA claims could be resolved 

class-wide, given the individualized and person-specific analysis RFRA requires. See Brown, 929 

F.3d at 230 (emphasizing need for “case-by-case” adjudication under RFRA).8

 The opinion is 

therefore not persuasive. 

8

 This requirement overlaps to some degree with Rule 23(a)(2)’s commonality requirement, 

but this Court has explained that Rule 23(b)(2) “has an independent requirement of commonality,” 

Johnson v. Am. Credit Co. of Ga., 581 F.2d 526, 532 (5th Cir. 1978), that is even “more exacting,” 

McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 548 n.2 (5th Cir. 2003). 

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II. THE COURT SHOULD NOT ENTER AN INJUNCTIVE RELIEF FOR 

INDIVIDUALS OR ON A CLASS-WIDE BASIS. 

A. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims. 

1. The Named Plaintiffs’ claims are not ripe for review. 

Plaintiffs’ claims are neither constitutionally nor prudentially ripe. The ripeness doctrine 

“ensures that federal courts do not decide disputes that are ‘premature or speculative,’” and reflects 

both “‘Article III limitations on judicial power,’ as well as ‘prudential reasons for refusing to 

exercise jurisdiction.’” DM Arbor Ct., Ltd. v. City of Houston, 988 F.3d 215, 218 (5th Cir. 2021) 

(citation omitted). This doctrine is “designed ‘to prevent the courts, through avoidance of 

premature adjudication, from entangling themselves in abstract disagreements over administrative 

policies, and also to protect the agencies from judicial interference until an administrative decision 

has been formalized and its effects felt in a concrete way by the challenging parties.” Sample v. 

Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (citation omitted); accord Huawei Techs. USA, Inc. v. 

FCC, 2 F.4th 421, 434 (5th Cir. 2021). 

Constitutional ripeness. “[T]he doctrine of constitutional ripeness overlaps with the 

standing doctrine, most notably in the shared requirement that the plaintiff’s injury be imminent 

rather than conjectural or hypothetical.” Lacewell v. Off. of Comptroller of Currency, 999 F.3d 130, 

149 (2d Cir. 2021) (citation omitted); accord Ass’n of Irritated Residents v. U.S. EPA, 10 F.4th 937, 

944 (9th Cir. 2021). Thus, if a “purported injury is ‘contingent [on] future events that may not 

occur as anticipated, or indeed may not occur at all,’ the claim is not ripe for adjudication.” Lopez 

v. City of Houston, 617 F.3d 336, 342 (5th Cir. 2010) (quoting Thomas v. Union Carbide Agric. 

Prods. Co., 473 U.S. 568, 580–81 (1985)); accord, e.g., Sample, 406 F.3d at 312. 

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For this reason, several courts have declined to review challenges brought by service 

members who—like the named Plaintiffs—challenged the military’s vaccination requirement to 

avoid the possibility of separation for their refusal to comply, including on RFRA and Free 

Exercise grounds. See Knick, 2022 WL 2157066, at *3; Vance, 2022 WL 1094665, at *4–7; Robert, 

2022 WL 103374, at *2–3; Church, 573 F. Supp. 3d at 136–37; Miller, 2022 WL 3584666, at *4; 

Standage v. Braithwaite, 526 F. Supp. 3d 56, 94 (D. Md. 2021); Diraffael v. Cal. Mil. Dep’t, No. 

10- cv-7240, 2011 WL 13274364, at *3 (C.D. Cal. Mar. 21, 2011) (“[T]he commencement of 

discharge proceedings” is not sufficient injury when those “proceedings are still underway and to 

date no final determination has been reached[.]”). Courts have also rejected contentions that 

plaintiffs’ claims are ripe because the separation processes have a likely result. See, e.g., Roberts, 

2022 WL 834148, at *6 (explaining that the court was “in no position to make predictions as to 

what other entities might conclude,” and nothing could “change[] the fact that [the plaintiff] ha[d] 

yet to be discharged”); see also Shaw v. Austin, 539 F. Supp. 3d 169, 183 (D.D.C. 2021) (“[T]he 

Court cannot so easily dismiss the possibility that he will have a fair opportunity to make his case 

to a Board of Inquiry.”). The plaintiff’s alleged injuries therefore remained “theoretical, rather than 

certain and impending.” Roberts, 2022 WL 834148, at *4. 

So too here. Plaintiffs seek to avoid the possibility of involuntary separation or other 

disciplinary action for refusing to comply with the vaccination directive. Compl. ¶¶ 212–53. But 

no matter how confident they are that these events will someday come to pass, claims seeking 

relief from military-discharge decisions “are not ripe at the commencement of discharge 

proceedings; they are ripe only after a plaintiff has been discharged.” See Roberts, 2022 WL 

834148, at *5. Separation proceedings have not been completed for any of the Plaintiffs—and may 

never be. Indeed, these Plaintiffs still have the opportunity to be heard before any discharge 

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22 

decision could be made. Even if the separation authority were to decide to discharge a Plaintiff, he 

or she would still be able to seek adequate administrative relief from that decision before coming 

to federal court. See p. 6 supra. Plaintiffs thus seek to invoke this Court’s jurisdiction to remedy 

injuries that are merely theoretical and “based on nothing more than speculation” about events 

“that might never come to pass.” See Roberts, 2022 WL 103374, at *3; accord Church, 573 F. 

Supp. 3d at 137; Miller, 2022 WL 3584666, at *4. As a constitutional matter, these claims are not 

ripe for review. 

Prudential ripeness. Plaintiffs’ claims are also not ripe as a prudential matter. In evaluating 

prudential ripeness, a court considers “(1) the fitness of the issues for judicial resolution, and (2) 

the potential hardship to the parties caused by declining court consideration.” Lopez, 617 F.3d at 

341; see also DM Arbor Ct., 988 F.3d at 219 (noting these are prudential considerations); accord 

Ass’n of Irritated Residents, 10 F.4th at 944. Plaintiffs must satisfy both these prongs, Huawei 

Techs., 2 F.4th at 435 n.30, yet they satisfy neither. 

First, Plaintiffs’ claims are not fit for judicial resolution, because “matters ‘still pending 

before’” an agency are “not yet ripe for judicial review.” Shrimpers & Fisherman of the RGV v. 

U.S. Army Corps of Eng’rs, 849 F. App’x 459, 462 (5th Cir. 2021) (quoting La. Power & Light Co. 

v. Fed. Power Comm’n, 526 F.2d 898, 910 (5th Cir. 1976)). As explained, proceeding now would 

require the Court “to adjudicate internal military affairs before the military chain of command has 

had full opportunity to consider” them. Church, 573 F. Supp. 3d at 137; accord Roberts, 2022 WL 

834148, at *5–6; Miller, 2022 WL 3584666 at *3–5 (“Courts must not interfere . . . until the 

separation decision is final and can no longer be adjudicated within the military chain of 

command.”). Ripeness poses the question not whether it is “possible” to resolve a claim, but 

“whether it is appropriate for the court to undertake the task.” Fourth Corner Credit Union v. Fed. 

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23 

Rsrv. Bank of Kan. City, 861 F.3d 1052, 1060–61 (10th Cir. 2017) (citation omitted). Here, 

“‘judicial intervention’ at this stage would ‘inappropriately interfere with further administrative 

action’ on the matter before the Court.” Miller, 2022 WL 3584666 at *4 (quoting Wyoming v. Zinke, 

871 F.3d 1133, 1141–42 (10th Cir. 2017)). 

The fact that, at some point in the future, the Coast Guard “may separate or otherwise 

discipline a Plaintiff for refusing to comply with its COVID-19 vaccination requirement cannot 

ripen this case.” Id. (citation omitted). “Whether to separate or discipline a service member is a 

discretionary decision that is left, in the first instance, to the” Coast Guard. Id.; see also, e.g., Toilet 

Goods Ass’n v. Gardner, 387 U.S. 158, 163–64 (1967). The “initiation of separation proceedings 

is [thus] a tentative action not fit for judicial review,” because “one can only speculate as to the 

final outcome of any proceedings.” Smith v. Harvey, 541 F. Supp. 2d 8, 13 (D.D.C. 2008). As 

explained, any Plaintiffs currently in separation proceedings “still have multiple opportunities” to 

be heard by decision-making bodies that have the authority to retain their service. Miller, 2022 

WL 3584666, at *5. Therefore, at this point, it is entirely “possible that something” raised by a 

Plaintiff during his or her separation or postseparation proceedings “will compel [the Coast Guard] 

to drop the [separation],” obviating the need for any judicial involvement. See TOTAL Gas & 

Power N. Am., Inc. v. Fed. Energy Regul. Comm’n, 859 F.3d 325, 336 (5th Cir. 2017); accord Am. 

Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012). 

Separately, it appears Plaintiffs are asking this Court also to enjoin the Coast Guard from 

taking any other “adverse,” non-disciplinary actions. Those claims for relief are unfit for judicial 

resolution. Such relief could not be squared with the Supreme Court’s order in Navy SEALs 1–26, 

which stayed a lower court injunction to the extent that it “preclude[d] the Navy from considering 

[service members’] vaccination status in making deployment, assignment, and other operational 

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24 

decisions.” 142 S. Ct. at 1301; see also Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 

1989) (“The Constitution vests ‘[such] complex, subtle, and professional decisions as to the 

composition, training, equipping, and control of a military force’ exclusively in the legislative and 

executive branches.”) (quoting Gilligan, 413 U.S. at 10). Moreover, Plaintiffs offer no evidence 

that they are facing or will soon face any adverse employment actions because they brought this 

lawsuit or requested a religious exemption, and thus these claims are based purely on speculation 

about what might happen in the future. See Thomas, 473 U.S. at 580–81. 

Second, Plaintiff have not established that delaying resolution of their claims would cause 

them any hardship. As discussed below, pp. 42–44 infra, Plaintiffs have not shown that they will 

likely suffer irreparable harm as a result of Defendants’ challenged actions, and all claims to the 

contrary rest on layers of speculation. 

2. Plaintiffs have failed to exhaust all available intraservice remedies. 

The named Plaintiffs’ claims are also not justiciable because have not properly exhausted 

available intra-service remedies. “The basic purpose of the exhaustion doctrine is to allow an 

administrative agency to perform functions within its special competence—to make a factual 

record, to apply its expertise, and to correct its own errors so as to moot judicial controversies.” 

Parisi v. Davidson, 405 U.S. 34, 37 (1972). Requiring exhaustion in the military context is 

particularly appropriate, “given the judiciary’s lack of expertise in areas of military judgment and 

its long-standing policy of non-intervention in internal military affairs.” Heidman v. United States, 

414 F. Supp. 47, 48 (N.D. Ohio 1976) (citing Schlesinger v. Councilman, 420 U.S. 738 (1975); 

Parker v. Levy, 417 U.S. 733 (1974); Gilligan, 413 U.S. at 10). The Fifth Circuit has thus long 

required that a plaintiff first exhaust all “available intraservice corrective measures” before 

bringing to federal court claims implicating “internal military affairs.” Hodges v. Callaway, 499 

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F.2d 417, 419–20 (5th Cir. 1974) (quoting Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971)); 

accord Von Hoffburg v. Alexander, 615 F.2d 633, 637 (5th Cir. 1980) (collecting cases); see also 

Cargill v. Marsh, 902 F.2d 1006, 1007–08 (D.C. Cir. 1990) (per curiam). And even when a plaintiff 

meets this threshold exhaustion requirement, a court still must weigh several factors to determine 

the propriety of reviewing a claim challenging internal military matters: (i) the nature and strength 

of the plaintiffs’ challenge; (ii) the potential injury to the plaintiffs if review is refused; (iii) the 

type and degree of anticipated interference with the military function; and (iv) the extent to which 

the exercise of military expertise or discretion is involved. Mindes, 453 F.2d at 201.9

Exhaustion. Although Plaintiffs assert that they have sought various exemptions from the 

Coast Guard’s vaccination requirement, they have not pursued their claims through all available 

administrative procedures, pp. 5–6 supra, during which the Coast Guard can build a factual record 

and determine in the first instance whether a Plaintiff should be granted relief. For that reason, 

courts have recently denied relief to service members who similarly failed to exhaust available 

separation remedies before pursuing RFRA and Free Exercise challenges relating to DoD’s 

vaccination directive. See, e.g., Church, 573 F. Supp. 3d at 136–38; Robert, 2022 WL 103374, at 

*3; Knick, 2022 WL 2157066, at *3; Mark Short, 2022 WL 1051852, at *4; Miller, 2022 WL 

3584666, at *5. Plaintiffs insist that they have exhausted administrative remedies because they 

9

 Plaintiffs are incorrect to rely on U.S. Navy SEALs 1–26 v. Biden, 27 F.4th 336 (5th Cir. 

2022). See Pls.’ Br. at 17 & n.11. In granting the very same partial stay of an injunction that the 

Fifth Circuit had denied, the Supreme Court necessarily rejected the Fifth Circuit’s reasoning in 

that case. Austin v. U.S. Navy SEALs 1–26, 142 S. Ct. 1301 (2022) (mem.). Further, contrary to 

Plaintiffs’ contention, the Fifth Circuit in Navy SEALs 1–26 did not hold that Mindes is 

inapplicable to RFRA claims. The three-judge panel opined that it “would not be a stretch” to 

reach that conclusion but, “deferring to circuit precedent,” went on to apply Mindes. 27 F.4th at 

346. This Court likewise should defer to circuit precedent and apply Mindes. And it should do so 

considering the specific record in this case against the Coast Guard, not the record in some other 

case against a different branch. See id. 347 n.11 (recognizing that cases have reached different 

conclusions on this topic). 

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have received denials of their requests for religious accommodation. But Plaintiffs do not dispute 

that they have not concluded the Coast Guard’s separation or post-separation processes, which 

they must exhaust before bringing their claims to federal court. See, e.g., Church, 573 F. Supp. 3d 

at 136–38. And Plaintiffs make no effort to show that all the members of their proposed class have 

exhausted remedies, nor do they define the proposed class in a way that would include only service 

members who have exhausted post-separation remedies. This is yet another reason to deny the 

class-wide preliminary injunction. 

Mindes factors. Even if Plaintiffs had properly exhausted all available administrative 

remedies before bringing this action, their claims would still be unreviewable because each of the 

Mindes factors weighs against judicial review. First, Plaintiffs’ claims are exceedingly weak and 

are unlikely to succeed on the merits (as discussed below). Second, as explained above, p. 24 

supra, and below, pp. 42–44 infra, Plaintiffs offer no evidence on which to find that they will likely 

suffer harm absent this Court’s review. Finally, the third and fourth Mindes factors weigh decidedly 

against reviewing Plaintiffs’ claims. See West v. Brown, 558 F.2d 757, 760–61 (5th Cir. 1977) 

(explaining that these factors “present a single inquiry, focusing on disruption of military 

functions.”). “[M]ilitary readiness and unit cohesion would be unacceptably harmed should the 

Court” issue the prayed-for declaratory or injunctive relief implicating the “DoD Vaccine 

Mandate.” Church, 573 F. Supp. 3d at 146–47; see also, e.g., Ex. 1 ¶ 22, App. 11. “[F]orcing the 

[Army] to adjust to the risks of including unvaccinated [soldiers] in its ranks is a substantial 

interference.” Thomas Short, 2022 WL 1203876, at *15 (quoting Mark Short, 2022 WL 1051852, 

at *5). Even the risk of a single Plaintiff going unvaccinated is a serious concern because, inter 

alia, unvaccinated individuals have many times the risk of suffering severe illness from SARSCoV-2 infection and requiring hospitalization as a result. Ex. 1 ¶¶ 16–18, App. 7–9. Contrary to 

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Plaintiffs’ conclusory assertion that “no military expertise is implicated” here, Pls.’ Br. at 17 n.11, 

to review Plaintiffs’ claims, the Court would need to “involve itself in ‘complex, subtle, and 

professional decisions as to the composition, training, equipping, and control of a military force.’” 

Thomas Short, 2022 WL 1203876, at *15 (citation omitted). And by requiring the Coast Guard to 

retain, deploy, or assign each Plaintiff without regard for his or her vaccination status, the Court 

would improperly insert itself into a Plaintiff’s chain of command, overriding military 

commanders’ judgments about operational needs, including Plaintiffs’ fitness to serve and carry 

out their duties. “[T]he public’s interest in military readiness and the military’s interest in 

Plaintiff[s’] health outweigh” Plaintiffs’ alleged interests in the resolution of their claims. See Navy 

SEAL 1, 2022 WL 1294486, at *16. 

3. Plaintiffs’ RFRA claims fail on the merits. 

None of the three named Plaintiffs can establish likely success on the merits of their 

respective RFRA claims, nor can they establish a likelihood of prevailing on a class-wide basis. 

Military orders to vaccinate violate RFRA only if the government cannot “demonstrate[] that 

application of the burden to the person—(1) is in furtherance of a compelling governmental 

interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 

42 U.S.C. § 2000bb-1(b). But here, requiring Plaintiffs to be vaccinated furthers compelling 

government interests in military readiness and in the health and safety of service members, and it 

is the least restrictive means of advancing those interests. “[A] majority of the Supreme Court has 

already held . . . that the Government is likely to succeed on the merits on the same claims brought 

by Navy SEALs,” and although that decision may not be formally binding, “it is the most 

persuasive authority on which a District Court may rely.” Navy SEAL 1, 2022 WL 1294486, at *4 

Case 4:22-cv-00825-P Document 30 Filed 10/07/22 Page 41 of 59 PageID 840
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(citing Navy SEALs 1–26, 142 S. Ct. at 1301).10

Compelling Interest. Requiring the named Plaintiffs to be vaccinated against COVID-19 

furthers compelling military interests in force health and readiness, especially when evaluated 

under the substantial deference that courts afford military operational decision-making. “[N]o 

court has ever held that the military does not have a compelling interest in the health of its troops” 

or “that vaccination against harmful diseases does not serve a compelling government interest,” 

id. at *9; accord Creaghan, 2022 WL 150054, at *9 (“[T]here can be no greater military interest 

than in keeping each servicemember fit and healthy enough to accomplish their duties.”). Instead, 

the Supreme Court has repeatedly emphasized that the government’s interest in the “maximum 

efficiency” of military operations is paramount, cf. United States v. O’Brien, 391 U.S. 367, 381 

(1968), and that “[f]ew interests can be more compelling than a nation’s need to ensure its own 

security,” Wayte v. United States, 470 U.S. 598, 611 (1985). And “[w]hen evaluating whether 

military needs justify a particular restriction on religiously motivated conduct, courts must give 

great deference to the professional judgment of military authorities concerning the relative 

importance of a particular military interest.” Mark Short, 2022 WL 1051852, at *7 (quoting 

Goldman, 475 U.S. at 507). Congress recognized these long-standing principles of military 

deference in enacting RFRA. S. Rep. No. 103-111, at 12 (1993), as reprinted in 1993 U.S.C.C.A.N. 

1892, 1901 (“The courts have always recognized the compelling nature of the military’s interest 

in [good order, discipline, and security] in the regulations of our armed services,” and “have always 

extended to military authorities significant deference in effectuating these interests. The committee 

10 Plaintiffs contend that the COVID-19 vaccination requirement substantially burdens 

their sincerely held religious beliefs because, as alleged in the complaint, “[a]ll of the COVID-19 

vaccines currently approved by the FDA and available in the United States were derived from or 

tested using (as part of their development) aborted fetal cell lines.” Compl. ¶ 161. But even if 

Plaintiffs were correct, they have indicated that they “do not oppose all vaccines.” Id. ¶ 163. And 

according to the Chief Scientist at Novavax, “[a]nimal or fetal-derived cell lines/tissue are not used 

in the manufacturing, testing, or production of the Novavax COVID-19 vaccine.” Ex. 10, at 4, 

App. 133. Given that, they are even more unlikely to succeed on their RFRA claims. See, e.g., New 

Doe Child #1 v. Congress of the United States, 891 F.3d 578, 590–91 (6th Cir. 2018). 

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intends and expects that such deference will continue under this bill.”); Navy SEAL 1, 2022 WL 

1294486, at *8. 

 After consulting with “medical experts and military leadership,” the Secretary of Defense 

“determined that mandatory vaccination against [COVID-19] is necessary to protect the Force and 

defend the American people.” See Sec’y of Def. Mem. (Aug. 24, 2021), https://perma.cc/N759-

S758; Sec’y of Def. Mem. (Aug. 9, 2021), https://perma.cc/S4R3-2VZW. The Commandant of the 

Coast Guard likewise found that COVID-19 vaccination of each service member is necessary to 

ensure the readiness of the force and the health and safety of its members. Ex. 3 ¶¶ 4, 28, App. 63, 

71. And “logic alone” dictates that “the military’s general compelling interest in ensuring the health 

of its servicemembers . . . distill[s] to a compelling interest in ensuring that [each individual service 

member] remains healthy enough to accomplish [his] duties.” Creaghan, 2022 WL 1500544, at 

*9; see also Roth, 2022 WL 1568830, at *17. The Court must “give great deference” to the 

“professional military judgments” of these leaders when it comes to what is needed to ensure 

military readiness and the welfare of service members. Winter, 555 U.S. at 24–25 (collecting 

cases). And “when executive officials ‘undertake to act in areas fraught with medical and scientific 

uncertainties,’ their judgments ‘should not be subject to second-guessing by an unelected federal 

judiciary, which lacks the background, competence, and expertise to assess public health.’” Mark 

Short, 2022 WL 1051852, at *5 (quoting S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 

1613, 1613–14 (2020) (Roberts, C.J., concurring)); accord Creaghan, 2022 WL 1500544, at *8. 

 Here, the Coast Guard conducted the individualized, “to the person” analysis that RFRA 

requires, 42 U.S.C. § 2000bb-1(b), considering each of the Plaintiffs’ particular job duties and 

concluding that allowing each of them to remain unvaccinated would undermine the military’s 

compelling interest in ensuring they can carry out their military duties effectively, see Ex. 3 ¶¶ 22–

25, App. 69–70; see also, e.g., Roth, 2022 WL 1568830, at *15. 

Plaintiff LTJG Alaric Stone is an active duty commissioned officer in the United States 

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Coast Guard, currently assigned to the Fifth District Intelligence Branch (DRI) in Portsmouth, 

Virginia, Ex. 6 ¶ 3, App. 95. Previously, Plaintiff Stone served on board the USCGC JAMES as 

a member of the Operations Department on four separate deployments. See id. ¶¶ 3–4, App. 95–

96. On board the USCGC JAMES, Plaintiff Stone was responsible for shiphandling and safety of 

the crew and cutter, see id. ¶ 3, App. 95, putting him in close contact with over 126 Coast Guard 

service members, as well as foreign military and civilians during port calls and other international 

engagements, see id. ¶ 4, App. 96. 

Plaintiff BM1 Jackson is currently assigned to U.S. Coast Guard Station South Padre 

Island, South Padre Island, TX, having previously served on board the USCGC BENJAMIN 

BOTTOMS (WPC 1132), a Sentinel-class fast response cutter (FRC) stationed in San Pedro, CA. 

Ex. 7 ¶¶ 3, 12, 15, App. 101. 103–04. In his service aboard that cutter, Plaintiff Jackson was a 

small-boat coxswain, Boarding Officer and Deck Watch Officer, working in close proximity to and 

in enclosed spaces with other crewmembers to perform a variety of missions related to law 

enforcement, homeland security, and search and rescue. See id. ¶¶ 12, 15, App. 101, 103–04. 

Plaintiff LTJG Marcenelle recently departed from serving as a duty officer assigned to the 

Response Department for Sector Charleston. See Ex. 8 ¶ 3, App. 108. His duties in this role were 

varied, with the majority of his work involving the management of, and employment with, the 

Sector Boarding Team as they conducted security searches of arriving commercial vessels. See id. 

That team is responsible for clearing vessels as they arrive at the Port of Charleston. See id. And 

the work Plaintiff Marcenelle did required operating in confined spaces with specially qualified 

Coast Guard personnel and civilian partners. See id. ¶¶ 3–4. App. 108. 

The Coast Guard’s decisions to deny these named Plaintiffs’ religious accommodation 

requests in this case are amply supported by evidence showing COVID-19’s harmful impact on 

military readiness. COVID-19 has “impacted all elements of DoD simultaneously,” including 

exercises, deployments, redeployments, and other global force management activities, Ex. 1 ¶¶ 4, 

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6–8. App. 3–5; caused the cancellation of numerous significant preparedness and readiness events, 

id. ¶ 9, App. 5; suspended operations and resulted in inoperability of aircraft carriers for months 

in strategically significant areas, id. ¶¶ 7–8, App. 3–5; and infected hundreds of thousands of 

service members, hospitalized thousands, and tragically caused the loss of 96 service members, id.

¶ 3, App. 2–3. In the Coast Guard alone, COVID-19 has taken multiple entire units out of operation 

for weeks at a time. Ex. 4 ¶¶ 7–10, App. 85–87. Over 8,247 Coast Guard service members (out of 

a total of 45,900 active duty and reserve members) have been infected, resulting in significant lost 

days of time and readiness. Id. ¶ 7, App. 85. 

The Coast Guard’s judgment is also supported by the positive effects that COVID-19 

vaccination has had on force readiness and health. Vaccinations have reduced the risk of serious 

illness, hospitalizations, and deaths of service members. See, e.g., Ex. 1 ¶¶ 16–18, App. 7–9; Ex. 

2 ¶¶ 8, 11–12, App. 18, 24–27; see also Church, 573 F. Supp. 3d at 147 (requiring vaccination is 

“supported by a lengthy record replete with data demonstrating the necessity of a general vaccine 

mandate”); Mark Short, 2022 WL 1051852, at *7 (noting “the empirical evidence in the record of 

the vaccine’s efficacy” and the military’s “evidence-based approach in its reliance on 

vaccination”); Oklahoma, 577 F. Supp. 3d at 1265 (stressing that the vaccine “has been shown to 

be remarkably effective in mitigating the effects of the pandemic which has affected . . . thousands 

of service members”). The overwhelming percentage of the service members who have died from 

COVID-19 were unvaccinated. See Ex. 1 ¶ 3, App. 3–4; Ex. 2 ¶ 12, App. 27. Likewise, “[b]etween 

July and November of 2021, non-fully-vaccinated active-duty service members had a 14.6-fold 

increased risk of being hospitalized when compared to fully vaccinated active-duty service 

members,” and “[i]n December 2021 unvaccinated adults were 16-times more likely to be 

hospitalized than vaccinated adults.” Ex. 1 ¶ 18, App. 9. A recent study published by the CDC 

confirmed mRNA vaccine effectiveness against invasive mechanical ventilation or death during 

the Omicron-predominant period. See CDC, Morbidity and Mortality Weekly Report (Mar. 18, 

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2022), https://perma.cc/HJH3-PEN4. Vaccinations also reduced the number of service members 

required to quarantine, permitted the military to return to higher levels of occupancy in DoD 

facilities and hold in-person training, and allowed service members to participate in joint training 

exercises with countries that have vaccination requirements. See Ex.1 ¶ 14, App. 7. In short, 

“[g]iven the tangible protection the vaccines afford service members against serious illness, 

hospitalization, and death, it is clear that COVID-19 vaccines improve readiness and preserve the 

DoD’s ability to accomplish its mission.” Id. ¶ 22, App. 11. 

Vaccination also furthers the Coast Guard’s “mission-critical” interest in ensuring that 

service members can respond to domestic emergencies or deploy on only a few days’ or even a 

few hours’ notice. Ex. 4 ¶¶ 5–6, App. 83–85.11 Because it takes individuals about one month 

following their first dose of the FDA-approved COVID-19 to become fully vaccinated, service 

members cannot put off vaccination until they are ordered to respond to an emergency. Id. ¶ 6. The 

vaccine is necessary for members to stay deployment-ready because short-fuse deployments and 

no-notice temporary duty assignments are often necessary to support critical Coast Guard 

operations, such as responding to domestic emergencies, and “[m]itigation measures short of full 

vaccination, like testing and social distancing, cannot be implemented during these deployments 

and temporary duty assignments because of the nature of the operational environment and the often 

austere and arduous situations in which the members operate.” Ex. 4 ¶ 5, App. 83–84. “Further, 

while at-sea, there is limited access to advanced medical care” in the event a member becomes 

infected with COVID-19. Ex. 7 ¶ 13, App. 103. Thus, caring for an ill member would require 

medivac off the cutter or a return to port, which would be highly disruptive to operations. Id. 

Plaintiffs attempt to dispel the Coast Guard’s compelling interest in requiring their 

11 In 2021, the Coast Guard deployed 4,461 members in response to surge staffing 

operations, including Hurricane Ida, the California Pipeline oil spill, the M/V Golden Ray 

capsizing, the Haitian earthquake, and Southwest Border migrant operations. Ex. 4 ¶ 5, App. 83–

84. The majority of personnel assigned to respond to domestic emergencies are from nonoperational billets, because personnel assigned to operational assets are deemed critical to the 

execution of that asset’s mission. Id. 

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vaccination, but none of their arguments have merit. In particular, Plaintiffs cannot rely on the 

availability of medical and administrative exemptions to undermine the government’s compelling 

interest in requiring these Plaintiffs to become vaccinated. That is because medical and 

administrative exemptions are not comparable to religious accommodations and therefore have no 

bearing on whether vaccinating Plaintiffs furthers the Coast Guard’s compelling interests in 

military readiness. Cf. Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (“Comparability is 

concerned with the risks various activities pose.”). In contrast to the religious accommodations 

that these Plaintiffs seek, medical exemptions serve the interest in military readiness: vaccinating 

a service member who has medical contraindications to the vaccine would harm the member’s 

health, thereby undermining from the military’s interests in ensuring readiness and the health and 

safety of members. Ex. 3 ¶¶ 10–11, 14–15, 17, App. 65–68; see also Navy SEAL 1, 2022 WL 

1294486, at *12; Mark Short, 2022 WL 1051852, at *8; Doe v. San Diego Unified Sch. Dist., 19 

F.4th 1173, 1178 (9th Cir. 2021), cert. and application for injunction denied, 142 S. Ct. 1099 

(2022); Does 1–6 v. Mills, 16 F.4th 20, 31 (1st Cir. 2021), cert. denied sub nom. Does 1-3 v. Mills,

142 S. Ct. 1112 (2022). Likewise, when medical exemptions are authorized for service members 

actively participating in COVID-19 vaccine clinical trials, those exemptions serve to further the 

efficacy of the vaccine and vaccine development, and so they too comport with the military’s 

compelling interests in a manner that a religious accommodation would not. And administrative 

exemptions—which were only granted to service members with an approved separation or 

retirement date no later than October 1, 2022—were appropriate because requiring vaccination of 

individuals leaving the force would not further the military’s interest in ensuring readiness. Ex. 3 

¶ 20, App. 68–69.12 Moreover, medical and administrative exemptions are generally temporary—

12 This effectuates the stated intent of Congress. See Joint Explanatory Statement to 

Accompany the [NDAA] for Fiscal Year 2022 at 151, https://perma.cc/FL8K-PFUU (“We also 

expect the Department to include . . . exemptions [from mandatory COVID-19 vaccination] for 

servicemembers nearing separation and retirement in the development of uniform procedures 

relating to administrative exemptions.”). 

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in contrast to the presumptive permanence of a religious belief opposing COVID-19 vaccination.13

Id. ¶ 6–8. In light of these distinctions it is not “illogical” for the Coast Guard to distinguish 

between these Plaintiffs’ “religious-based refusal to take a COVID-19 vaccine,” Pls.’ Br. at 18, and 

the medical and administrative exemption claims of other service members. 

Importantly, medical and administrative exemptions do not allow recipients to continue in 

their job duties as if they were vaccinated, as Plaintiffs here seek to do. See Proposed Prelim. Inj. 

Order, ECF No. 4-1 at 3 (seeking to enjoin, e.g., “change[s] in job title or duties” and 

“determination[s] of medical disqualification or non-deployability”). Rather, “contrary to 

Plaintiffs’ contentions, service members with medical, administrative, or religious exemptions to 

the COVID-19 vaccination mandate do not operate within the [military] as if they were 

vaccinated.” Roth, 2022 WL 1568830, at *20. All unvaccinated service members are subject to the 

travel, leave, deployment, assignment, and duty restrictions and limitations that Plaintiffs seek to 

avoid. Ex. 3 ¶ 37, App. 75. Medical exemptions render a service member non-deployable and 

subject to additional restrictions, see id., and service members who remain non-deployable for 

more than 12 consecutive months are reevaluated for retention, see DoDI 1332.45 ¶ 1.2(b), 

https://perma.cc/9FNU-ZR89. Thus, medical and administrative exemptions are not comparable 

to religious accommodations because they serve opposite purposes and yield opposite results.14

Accordingly, the Coast Guard’s decision to grant certain medical and administrative exemptions 

has no relevance on whether the Services have a compelling interest in vaccinating Plaintiffs. 

Plaintiffs’ invocation of the CDC’s recent updates to its guidance, see Pls.’ Br. at 21–22, 

only confirms that vaccination remains essential to preventing against serious illness, 

13 Permanent medical exemptions are only granted to service members who are allergic to 

a previous dose of the COVID-19 vaccine or to a component or the COVID-19 vaccines. Ex. 3 ¶ 

17, App. 78. To date, the Coast Guard has granted just nine such permanent medical exemptions. 

See id. at 4, App. 92. 

14 In this respect, Plaintiffs’ reliance on the alleged status of Plaintiff Stone’s colleagues, 

see Pls.’ Br. at 20, who would appear to have certain medical issues that prevent their worldwide 

deployment, is misplaced. 

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hospitalization, and death from COVID-19 infection. On August 11, 2022, the Centers for Disease 

Control and Prevention issued a Summary of Guidance for Minimizing the Impact of COVID-19 

on Individual Persons, Communities, and Health Care Systems. See CDC, Summary of Guidance 

for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health Care 

Systems—United States (Aug. 2022), https://perma.cc/Y7XV-4R3Q (hereinafter “CDC, Summary 

of Guidance”); see also CDC, Benefits of Getting a COVID-19 Vaccine (Aug. 17, 2022), 

https://perma.cc/W66Y-3GU7. As the CDC explains, “COVID-19 vaccines are highly protective 

against severe illness and death,” although they “provide a lesser degree of protection against 

asymptomatic and mild infection.” CDC, Summary of Guidance (Aug. 2022), 

https://perma.cc/Y7XV-4R3Q. Indeed, “[t]he rates of COVID-19–associated hospitalization and 

death are substantially higher among unvaccinated adults than among those who are up to date 

with recommended COVID-19 vaccination, particularly among adults aged ≥65 years.” Id.

15

Accordingly, the Coast Guard properly determined that vaccinating these three Plaintiffs 

furthers the Coast Guard’s compelling interest in military readiness. 

 Least Restrictive Means. As other courts have found in non-military settings, a uniform 

practice of vaccination is the least restrictive means for accomplishing the government’s interest 

in preventing the spread of infectious diseases in the workforce.16 This reasoning has even greater 

force in the military setting, where health of service members is paramount to military readiness, 

and where the acceptable level of risk to the mission must be a military, not judicial, judgment. 

See Navy SEALs 1–26, 142 S. Ct. at 1302 (Kavanaugh, J., concurring) (cautioning that a court may 

15 The CDC’s discussion of the benefits of vaccination comprehensively rebuts Plaintiffs’ 

suggestion that “the effectiveness of COVID-19 vaccination [is becoming] more doubtful.” Pls.’ 

Br. at 22. 

16 See, e.g., Does 1–6, 16 F.4th 20 (health-care workers); Doe, 19 F.4th 1173 (students); 

We The Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2d Cir. 2021) (health-care workers), , opinion 

clarified, 17 F.4th 368 (2d Cir. 2021), and denying injunction pending appeal sub. nom., Dr. A. v. 

Hochul, 142 S. Ct. 552 (2021); see also Burwell, 573 U.S. at 733 (recognizing that vaccines “may 

be supported by” the government’s compelling interest in “the need to combat the spread of 

infectious diseases”) 

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not “insert[] itself into the [military’s] chain of command, overriding military commanders’ 

professional military judgments”); Mark Short, 2022 WL 1051852, at *7 (emphasizing deference 

to military judgments and adding that “[t]his deference is layered on top of the deference that 

courts must give to expert policymakers on matters involving complex medical or scientific 

uncertainties”); Ex. 9, Dunn Op. at 37–42, App. 116–21 (finding vaccination of an Air Force officer 

to be the least restrictive means, including because of the necessary deference afforded to military 

assessments and because “judges aren’t scientists”). 

After careful consideration of Plaintiffs’ requests for a religious accommodation and their 

respective appeals, the final decision authority concluded that no lesser restrictive means 

sufficiently serve the Coast Guard’s compelling interests in readiness and ensuring the health and 

safety of all service members equally well. Notably, the Coast Guard is not required to use an 

alternative that does not serve its compelling interests “equally well” relative to vaccination. See 

Hobby Lobby, 573 U.S. at 731 (examining whether alternative served stated interest “equally 

well”); Kaemmerling v. Lappin, 553 F.3d 669, 684–85 (D.C. Cir. 2008) (rejecting RFRA and 

constitutional challenges against DNA Act, where “[a]ny alternative method of identification 

would be less effective” in accomplishing the government’s compelling interests (emphasis 

added)). 

Among other things, the Coast Guard considered the feasibility of remote work options, 

but concluded that these were not available. See Ex. 8 ¶ 12, App. 110; Ex. 7 ¶ 15, App. 104; Ex. 6 

¶¶ 4, 10, App. 96, 98. the Coast Guard evaluated the feasibility and effectiveness of masking and 

distancing but concluded that those measures are not as effective as vaccination. See, e.g. Ex. 8 

¶ 5, App. 109; Ex 7 ¶ 15, App. 104; Ex. 6 ¶¶ 4, 10, App. 96, 98. And regardless, unlike vaccination, 

masking and distancing do not provide any protection to an infected individual from severe illness 

or death. See Roth, 2022 WL 1568830, at *23. Also, unlike vaccination, the effectiveness of 

masking and distancing fluctuates based on human behavior. See Ex. 2 ¶ 10, App. 23–24; see also

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United States v. Elder, ---F. Supp. 3d---, 2022 WL 836923, at *9 (E.D.N.Y. Mar. 21, 2022) (“By 

themselves, face masks, social distancing, and similar measures may be effective for small groups 

over short periods of time, but fail to ensure the safety of large groups in close contact for sustained 

periods.”). 

Similarly, serial testing and temperature checks do not prevent a service member who tests 

positive from suffering serious health outcomes, such as long COVID, hospitalization, and death. 

Moreover, the “virus can be easily transmitted to others prior to symptom development and 

therefore may infect significant numbers before being identified.” Ex. 2 ¶ 10, App. 23–24. Indeed, 

the military experienced multiple COVID-19 outbreaks when it merely required service members 

to undergo routine testing requirements, rather than requiring vaccination. Ex. 4 ¶¶ 7–8, App. 85–

86; see also Does 1-6, 16 F.4th at 33 (noting same was true of Maine). 

Plaintiffs’ unverified contention that they have “natural immunity,” Pls.’ Br. at 18, is 

unpersuasive. While a prior infection can provide some protection against another infection for 

some amount of time, the available medical evidence leaves much unknown about the strength, 

consistency and duration of that protection. Ex. 2 ¶¶ 20–22, 24, 29, App. 34–41; Ex. 9, Dunn Op. 

at 39–40, App. 118–19 (“[I]t’s not well established that a natural immunity is effective, more 

effective or as effective as the vaccine.”); CDC, Benefits of Getting a COVID-19 Vaccine – 

Protection from COVID-19 (Aug. 17, 2022), https://perma.cc/W66Y-3GU7 (“While people can 

get some protection from having COVID-19, the level and length of that protection varies, 

especially as COVID-19 variants continue to emerge.”). Moreover, protection from a prior 

infection increases following vaccination. Ex. 2 ¶ 21, App. 36; CDC, Benefits of Getting a COVID19 Vaccine (Aug. 17, 2022), https://perma.cc/W66Y-3GU7 (“[P]eople can get added protection by 

getting vaccinated after having been infected with . . . COVID-19.”). The Coast Guard has 

therefore determined, consistent with CDC guidance, that vaccination is the best way to minimize 

the risk posed by COVID-19 to military readiness. See also DoDI 6205.02 ¶ 1.2, 

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https://perma.cc/8HLA-AXQB (mandating vaccination in accordance with the CDC’s 

recommendations); CDC, Interim Clinical Considerations for Use of COVID-19 Vaccines 

Currently Approved or Authorized in the United States (last updated Sept. 23, 2022), 

https://perma.cc/VM73-HDU8 (recommending vaccination for those five and over “regardless of 

a history of symptomatic or asymptomatic [COVID-19] infection,” and “serologic testing to assess 

for prior infection is not recommended for the purpose of vaccine decision-making”).17

Class-Wide RFRA Claims Are Improper. In seeking to obtain a class-wide preliminary 

injunction, Plaintiffs also argue that the Services have rejected less restrictive alternatives as part 

of a general policy of illegally denying religious accommodations. See Pls.’ Br. at 18–19. Plaintiffs 

may disagree with the Coast Guard’s assessment of least restrictive means to protect the military’s 

mission, but such disagreement does not mean that military leaders are operating unlawfully. 

In particular, Plaintiffs’ emphasis on the overall number of accommodation requests 

granted by the Coast Guard is misguided. As explained, p. 15 supra, reliance on mere data as to 

the raw numbers of religious exemption requests granted does not satisfy Wal-Mart’s requirements 

for class certification, let alone support class-wide relief. This is especially so where so many 

claims are unripe and unexhausted. See p. 17 supra. 

Similarly, Plaintiffs’ suggestion that Coast Guard authorities have “exhibited a clear intent 

to unlawfully discriminate against religious service members,” Pls.’ Br. at 19, is unjustified. Cf. 

Dodson v. U.S. Gov’t, Dep’t of the Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993) (“[M]ilitary 

administrators are presumed to act lawfully and in good faith like other public officers, and the 

military is entitled to substantial deference in the governance of its affairs.”); Doe 2 v. Shanahan, 

917 F.3d 694, 731 (D.C. Cir. 2019) (Williams, J., concurring) (noting that “the plausibility of such 

17 Cf. Biden v. Missouri, 142 S. Ct. 647, 653–54 (2022) (concluding that it was rational for 

an agency to rely on CDC guidance in requiring vaccination even for individuals with “natural 

immunity” from prior COVID-19 illness); Norris v. Stanley, No. 1:21-cv-756, 2022 WL 557306, 

at *4 (W.D. Mich. Feb. 22, 2022) (similar), appeal filed, No. 22-1200 (6th Cir. Mar. 14, 2022); 

Valdez v. Grisham, 559 F. Supp. 3d 1161, 1177 (D.N.M. 2021)(similar), aff’d, 2020 WL 2129071 

(10th Cir. June 14, 2022). 

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a scheme tends to unravel as we try to imagine the dozens of participants,” including “Cabinet 

members and other officials,” “who would have been needed for its realization” (citation omitted)). 

Plaintiffs make much of an alleged statement from Plaintiff Stone’s commanding officer that 

Stone’s religious beliefs “didn’t matter” to him. Pls.’ Br. at 19. But as explained in the Declaration 

of Commander Thomas, Plaintiffs misinterpret the commanding officer’s position. See Thomas 

Ex. 6 ¶ 7, App. 97. That officer simply believed that “vaccination was necessary to the ship 

meeting operational mission requirements and keeping the crew/families healthy and safe.” Id. In 

any event, that officer wasn’t responsible for providing information about Stone’s religious beliefs 

within the Coast Guard’s accommodation process, and because Plaintiff Stone’s accommodation 

request concerned a mandatory vaccination, that officer did not have authority to decide Stone’s 

request. Id. 

More generally, Plaintiffs’ process complaints are improper as it relates to the putative 

class. The Coast Guard has established an extensive, multi-step process for providing 

individualized review of all religious accommodation requests, and Coast Guard officials spend 

significant time carefully considering those requests in light of the Guard’s mission requirements. 

Ex. 3 ¶¶ 21–37, App. 69–75. Plaintiffs might perceive flaws in that process, but RFRA does not 

entitle plaintiffs to any particular process from the Coast Guard, rendering claims for class-wide 

relief improper. And though Plaintiffs present the recent memo published by the Department of 

Defense Inspector General to support their claims for broad relief, see, e.g. Pls.’ Br. at 20, the Coast 

Guard is not part of the Department of Defense, so that report has no relevance here. 

In sum, the Coast Guard’s considered judgment is reasonable and supported by the record. 

RFRA does not compel the Coast Guard to adopt any measure that is inferior in the military context 

to the use of vaccines. Plaintiffs have thus failed to show likely success on their RFRA claims so 

as to warrant the extraordinary preliminary injunctive relief they seek, much less at a class-wide 

level. 

 

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4. Plaintiffs’ First Amendment claims are unlikely to succeed on the merits. 

Briefly, Plaintiffs also press First Amendment claims, contending that the Coast Guard is 

“treating religious-based accommodation requests less favorably than secular requests.” Pls.’ Br. 

at 23. As a threshold matter, there should be no need for the Court to address the First Amendment 

claim separately. If the Government prevails on the RFRA claim, then the Government necessarily 

prevails under the First Amendment claim. Conversely, if Plaintiffs prevail under RFRA, the Court 

could grant relief without considering Plaintiffs’ First Amendment claim and thus avoid 

unnecessarily confronting a constitutional question. 

But in any event, Plaintiffs First Amendment claim should fail. The Supreme Court has 

explicitly held that “the First Amendment does not require the military to accommodate [religious] 

practices in the face of its view that they would detract from the [the military mission].” Goldman, 

475 U.S. at 509-10. Indeed, “review of military regulations challenged on First Amendment 

grounds is far more deferential than constitutional review of similar laws or regulations designed 

for civilian society.” Id. at 507; id. at 510 (rejecting a service member’s Free Exercise Clause claim 

because the Air Force “reasonably and evenhandedly regulate[s] dress in the interest of the 

military’s perceived need for uniformity”); cf. Trump v. Hawaii, 138 S. Ct. 2392, 2420 n.5 (2018) 

(noting, in rejecting, Establishment Clause claim, that the respondents there “cite no authority for 

[their] proposition that the more free-ranging inquiry [they] propose[] is appropriate in the national 

security . . . context”). This precedent “[a]t a minimum” suggests that “when a member of the 

military challenges a regulation or policy of the military on Free Exercise grounds, courts should 

normally apply a level of scrutiny below that of strict scrutiny and evidently comparable to rational 

basis review.” Navy SEAL 1, 2022 WL 1294486, at *13; see also Creaghan, 2022 WL 1500544, 

at *7. Plaintiff’s claim founders under Goldman’s highly deferential standard. “[T]he 

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overwhelming weight of scientific authority supports the proposition that COVID-19 vaccination 

reduces the severity and duration of disease,” and in light of those benefits, requiring vaccination 

clearly advances the Coast Guard’s interest in force readiness and the health and wellbeing of 

service members. Navy SEAL I, 2022 WL 1294486, at *10. And while various medical and 

administrative exemptions may also advance those interests in their own—including by avoiding 

harm to individuals with allergies that preclude vaccination as an option—the religious 

accommodations that Plaintiffs seek are different in kind. Thus, while Plaintiffs make much of 

the Coast Guard’s rejection of numerous religious accommodation requests, see Pls.’ Br. at 23, the 

Coast Guard’s distinction between exemptions that promote force readiness and the health and 

wellbeing of service members and accommodations that would undermine those same interests is 

entirely rational and provides no occasion for the application of strict scrutiny. 

Even assuming the military context was not relevant, strict scrutiny would still be 

inapplicable under a constitutional analysis because the vaccine requirement is neutral and 

generally applicable. See Kaemmerling, 553 F.3d at 677. It applies to all service members; its 

“terms . . . do not make any reference to religion,” Ex. 9, Dunn Op. at 44, App. 123; and it was 

expressly implemented in order to ensure “a healthy and ready force”—not to suppress religious 

belief, Sec’y of Def. Mem. (Aug. 24, 2021), https://perma.cc/N759-S758; see also Ex. 9, Dunn

Op. at 43–44, App. 122–23 (finding Air Force’s vaccine requirement generally applicable and 

subject to rational basis review); Trump, 138 S. Ct. at 2420 (“On the few occasions where” the 

Supreme Court has struck down a law under rational basis scrutiny, “a common thread has been 

that the laws at issue lack any purpose other than a bare . . . desire to harm a politically unpopular 

group.”) (citation omitted); We The Patriots, 17 F.4th at 281 (concluding that New York’s vaccine 

requirement for healthcare workers was facially neutral “because it does not single out employees 

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42 

who decline vaccination on religious grounds” and it “applies to all personnel”); Doe, 19 F.4th at 

1177 (similar, regarding school district’s student vaccination requirement). Plaintiffs cannot 

demonstrate that Services’ respective vaccine requirements “lack any purpose other than a bare 

desire to harm” any set of religious beliefs so as to trigger a higher level of scrutiny. Trump, 138 

S. Ct. at 2420 (cleaned up). 

B. Plaintiffs Are Unlikely to Suffer Irreparable Harm Absent Preliminary Relief. 

Plaintiffs must show that, in the absence of an injunction, they are “likely to suffer 

irreparable harm.” Daniels Health Scis., LLC v. Vascular Health Scis., LLC, 710 F.3d 579, 585 (5th 

Cir. 2013) (citation omitted). It is not enough simply to “show[ ] some ‘possibility of irreparable 

injury.’” Nken v. Holder, 556 U.S. 418, 434–35 (2009) (quoting Abbassi v. INS, 143 F.3d 513, 514 

(9th Cir. 1998)); accord Winter, 555 U.S. at 22. “Speculative injury is not sufficient” to “make a 

clear showing of irreparable harm.” Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 

(5th Cir. 1985). Moreover, “the irreparable harm element must be satisfied by independent proof, 

or no injunction may issue.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989). “In general, 

a harm is irreparable where there is no adequate remedy at law, such as monetary damages.” Janvey 

v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011). Conversely, “[t]he possibility that adequate 

compensatory or other corrective relief will be available at a later date, in the ordinary course of 

litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 

90 (1974). And “[i]n the context of ‘military personnel decisions, . . . courts have held that the 

showing of irreparable harm must be especially strong before an injunction is warranted, given the 

national security interests weighing against judicial intervention in military affairs.” Church, 573 

F. Supp. 3d at 145 (citation omitted). Plaintiffs make no such showing. 

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Plaintiffs claim that they face irreparable harm because they are being deprived of their 

constitutionally and statutorily protected religious rights. Pls.’ Br. at 23–24. But as discussed, pp. 

27–42 supra, Plaintiffs have not demonstrated that Defendants’ challenged actions implicate their 

constitutional or statutory rights, let alone imminently threaten them, Elrod v. Burns, 427 U.S. 347, 

374 (1976); see also, e.g., Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 

334 (D.C. Cir. 2018) (explaining that, to show irreparable harm based on loss of constitutional 

rights, a movant must show likely success on the merits), cert. denied, 140 S. Ct. 1198 (2020); 

Mark Short, 2022 WL 1051852, at *9; Bellinger v. Bowser, 288 F. Supp. 3d 71, 88–89 (D.D.C 

2017); Thomas Short, 2022 WL 1203876, at *7–8. A preliminary injunction is inappropriate 

“unless the party seeking it can demonstrate that ‘[constitutional] interests are either threatened or 

in fact being impaired at the time relief is sought.’” Google, Inc. v. Hood, 822 F.3d 212, 227–28 

(5th Cir. 2016) (citation omitted). And even if Plaintiffs could show likely success on the merits of 

their claims, the irreparable-harm requirement is not excised any time a plaintiff asserts a colorable 

constitutional claim. The mere “invocation of the [Constitution] cannot substitute for” a plaintiff’s 

obligation to show “the presence of an imminent, non-speculative irreparable injury” that will 

occur absent preliminary relief. Id. at 228. Beyond the mere circular invocation of their merits 

arguments, plaintiffs fail to show any actual irreparable injury would result if preliminary relief is 

denied. The imposition of any discipline after the process for finally adjudicating their request is 

not irreparable in any court. 

Likewise, Plaintiffs fail to show how an entire class of Coast Guard members with religious 

exemption requests face any irreparable harm. Indeed, as to the class, the denial of class-wide 

preliminary relief would not mean only that putative class members must bring their individual 

claims to court in the ordinary course, including for any preliminary relief like the named Plaintiffs 

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here, for an assessment of their individual circumstances. This is the process contemplated by 

RFRA, not a wide-ranging injunction that would restrict the Coast Guard’s ability to protect the 

health, safety, and readiness of the force. 

C. The Equities and Public Interest Weigh Against a Preliminary Injunction. 

The third and fourth requirements for issuance of a preliminary injunction—the balance of 

harms and whether the requested injunction will disserve the public interest— “merge when the 

Government is the opposing party.” Nken, 556 U.S. at 435. These factors tilt decidedly against the 

issuance of a preliminary injunction here. 

The public has an exceptionally strong interest in national defense, see Winter, 555 U.S. at 

24–26, and the military has a compelling interest in requiring its forces to be vaccinated, healthy, 

and ready to accomplish any and every military mission, see North Dakota v. United States, 495 

U.S. 423, 443 (1990); Navy SEALs 1–26, 142 S. Ct. at 1302 (Kavanaugh, J., concurring). An 

injunction allowing Plaintiffs to continue serving without being vaccinated against COVID-19 

would threaten harm not only to Plaintiffs and the other service members serving alongside them, 

but would also compromise their units’ collective abilities to execute their military and intelligence 

duties, maintain their necessary readiness, and accomplish their missions. See Ex. 4 ¶ 7, App. 85 

(“Coast Guard units are often small in size such that even a small number of cases can render a 

unit incapable of performing its mission.”); Ex. 3 ¶ 28, App. 71; Ex. 1 ¶ 21, App. 11. These harms 

would be magnified exponentially by a class-wide injunction, which would have an even greater 

impact over many other units. And unlike service members with medical and administrative 

exemptions, Plaintiffs seek to remain in their posts without any changes to their duties. The Coast 

Guard’s judgment that it cannot accept avoidable risk to the health and readiness of its fighting 

forces serves the public interest, outweighs any interests Plaintiffs may have in premature 

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preliminary relief, and deserves this Court’s deference. See, e.g., Navy SEAL 1, 2022 WL 1294486, 

at *16–17; Church, 573 F. Supp. 3d at 146–48. 

Moreover, the national defense depends on service members’ compliance with lawful 

orders. Chappell v. Wallace, 462 U.S. 296, 300 (1983). No military can successfully function where 

members feel free to define the terms of their own service and which orders they will choose to 

follow. Plaintiffs’ requested injunction would interfere with the military’s discretion to handle 

matters of order and discipline, to the detriment of effectiveness and trust between commander and 

subordinate. Orloff v. Willoughby, 345 U.S. 83, 95 (1953). 

CONCLUSION 

The motions to certify a class and for a preliminary injunction as to both the named 

Plaintiffs and the putative class should be denied. 

Dated: October 7, 2022 Respectfully submitted, 

BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General 

ALEXANDER K. HAAS 

Branch Director 

ANTHONY H. COPPOLINO 

Deputy Branch Director 

 /s/ Johnny Walker 

CODY T. KNAPP (NY Bar #5715438) 

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

Trial Attorneys 

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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