1 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

ERIC JACKSON, ALARIC STONE, and )

MICHAEL MARCENELLE, on behalf of ) 

themselves and all others similarly situated, ) 

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

 Plaintiffs, ) 

v. ) 

 )

ALEJANDRO N. MAYORKAS, in his official ) 

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

 ) 

 Defendants. ) 

PLAINTIFFS’ RESPONSE TO COAST GUARD’S NOTICE OF 

SUPPLEMENTAL AUTHORITY 

The new authorities cited by the Coast Guard—Bazzrea v. Mayorkas, No. 3:22-cv-265, 

2023 WL 3958912 (S.D. Tex. June 12, 2023), and Abbott v. Biden, No. 22-40399, 2023 WL 

3945847 (5th Cir. June 12, 2023)—do not support a determination that this case is moot, and in 

essential respects they demonstrate how this case is not moot. 

Bazzrea. Plaintiffs do not believe the court reached the correct result in Bazzrea, but 

regardless it is critically distinguishable. Judge Brown dismissed the case upon finding “no

evidence” of a remaining “controversy” or of “litigation posturing.” Bazzrea, 2023 WL 3958912 

at *7 (emphasis added). There is ample such evidence in the present case. 

One example of a remaining, live controversy concerns Plaintiff Marcenelle’s missed 

promotion. The Coast Guard passed him over for promotion solely due to his religious objection 

to the vaccine. ECF No. 72 at 8, 11-18, 20-22; ECF No. 73 at 12-17; ECF Nos. 82, 82-1, 83, 83-

1, 83-2, 85. He seeks retroactive promotion. Id. The unlawfulness of and remedy for his missed 

promotion remain a hotly contested issue. The parties specifically addressed this controversy 

with Judge Ray in a status conference and in subsequent filings. ECF Nos. 85, 82, 82-1, 83, 83-1, 

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83-2. The Coast Guard recently agreed to provide a special selection board (SSB) to Plaintiff 

Marcenelle and offered retroactive promotion and full backpay if he ultimately succeeds through 

the SSB process. ECF 82. But the Coast Guard has offered no timeline, not even an estimated 

timeline, for this process, and there is no indication that the Coast Guard, which continues to 

maintain the vaccine mandate was a “lawful” order, will ever voluntarily change its mind, make 

the necessary determination that it erred in denying the promotion, and award it to him. ECF 

Nos. 82, 82-1, 83, 83-1. The issue thus remains a live controversy warranting judicial resolution. 

In Bazzrea, by contrast, one plaintiff was passed over for promotion but specifically did “not ask 

the court to require retroactive promotion.” Bazzrea, 2023 WL 3958912 at *6 n.9 (emphasis 

added). 

Another example of a remaining controversy concerns one of Plaintiff Stone’s 

administrative remarks (CG-3307s) that references his vaccination status. Plaintiff Stone 

requested that it be removed from his personnel file, and just last month the Coast Guard refused 

to remove it. See Stone Supplemental Declaration (“Suppl. Decl.”) attached hereto, ¶¶ 2-4, and 

Exhibit 1 thereto. The presence of this CG-3307 continues to negatively impact Plaintiff Stone 

going forward. Id.; ECF No. 72 at 16-17. This injury has not been remedied. Id. In Bazzrea, by 

contrast, plaintiffs there “do not dispute” that their CG-3307s had been removed and, “thus, this 

alleged injury has been remedied” for those individual service members. Bazzrea, 2023 WL 

3958912 at *5. 

As yet another example, the Coast Guard wrongfully cancelled Plaintiff Stone’s orders to 

attend a training course essential to his advancement, because of his religious objection to the 

vaccine mandate. ECF No. 72 at 16; ECF No. 73 at 8; Suppl. Decl., ¶¶ 5-7. The Coast Guard still 

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has not permitted him to attend this course. Suppl. Decl., ¶ 5. None of the plaintiffs in Bazzrea

apparently face such an injury. Bazzrea, 2023 WL 3958912 at *4-5. 

The record in the present case contains evidence of other remaining controversies, 

including but not limited to the Coast Guard’s ongoing wrongful consideration of vaccination 

status in making personnel and availability decisions and the need for declaratory relief, 

benefiting all service members, that the Coast Guard violated and is violating religious liberty 

rights under RFRA and the First Amendment. ECF No. 67 at 3; ECF No. 67-3 at 2; ECF No. 72 

at 7, 11-12, 17, 19; ECF 73 at 9-10; ECF 73 at 251-55 (Declaration of Vice Admiral Lee (Ret.) 

attesting to need for declaratory relief); ECF No. 83 at 3. 

Relatedly, Plaintiffs here have offered extensive evidence of litigation posturing: the 

Coast Guard admits its behavior can reasonably be expected to recur, and indeed various 

collateral consequences, including but not limited to Plaintiff Marcenelle’s denied promotion, 

Plaintiff Stone’s unremoved CG-3307 and denied training course, and the Coast Guard’s 

ongoing wrongful consideration of vaccination status in making personnel and availability 

decisions, are ongoing and unremedied; the timing of the Coast Guard’s voluntary changes in 

policy given the present litigation is suspicious; and the Coast Guard continues to defend, 

unqualifiedly, the challenged vaccine mandate and related guidance. ECF No. 72 at 26-30; ECF 

No. 83 at 2. 

Abbott. As the Coast Guard acknowledges, the Fifth Circuit held the claims in Abbott

were not moot, reversing the district court. The Court held, inter alia: 

 “[A] case becomes moot when it is impossible for a court to grant any effectual relief 

whatever to the prevailing party.” Abbott, 2023 WL 3945847, at *4 (internal 

quotation marks omitted; emphasis added). 

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 “[T]he Government obviously does not consider the COVID vaccine mandate a 

‘readiness standard’ because the Government repealed the mandate.” Id. at *21 

(emphasis in original). 

Unlike Plaintiffs in this case, at least some of the service members at issue in Abbott did not seek 

religious accommodations. Id. at *4. In dicta, the Abbott Court noted that if service members 

were “no longer subject to the challenged requirement” it would “very likely moot this appeal.” 

Id. But as discussed above and at length previously, Plaintiffs are still subject to the collateral 

consequences of the challenged requirement, including but not limited to Plaintiff Marcenelle’s 

missed promotion, Plaintiff Stone’s unremoved CG-3307 and denied training course, and the 

Coast Guard’s ongoing wrongful consideration of vaccination status in making personnel and 

availability decisions. ECF No. 72 at 8, 11-18, 20-22. Also, unlike in this case, the voluntarycessation doctrine was not at issue in Abbott. See Abbott, 2023 WL 3945847, at *3 (discussing 

involuntary rescission per the National Defense Authorization Act (NDAA)).1 Because Plaintiffs 

face ongoing harms and the voluntary-cessation doctrine applies, this case is not moot. 

 

                                                            

1

 As discussed previously, the NDAA’s directive to rescind the Department of Defense vaccine 

mandate (Pub. L. No. 117-263, § 525 (2022)) did not apply to the Coast Guard, because the 

Coast Guard is under the authority of the Secretary of Homeland Security, not the Secretary of 

Defense. ECF No. 50 at 2 n.1; ECF No. 52 at 2; ECF No. 55; ECF No. 72 at 10. The Coast 

Guard Authorization Act (Pub. L. No. 117-263, Div. K, § 11001 et seq. (2022)) applies to the 

Coast Guard and did not direct the rescission of (or even mention) the Coast Guard’s vaccine 

mandate. The Coast Guard’s rescission of its mandate was entirely voluntary. 

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Dated: June 20, 2023 

Respectfully submitted, 

/s/ Adam S. Hochschild 

Stephen Crampton, pro hac vice Charles W. Fillmore 

THOMAS MORE SOCIETY – Senior Counsel State Bar # 00785861 

PO Box 4506 H. Dustin Fillmore III 

Tupelo, MS 38803 State Bar # 06996010 

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

scrampton@thomasmoresociety.org 201 Main Street, Suite 700 

 Fort Worth, TX 76102 

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

THOMAS MORE SOCIETY – Counsel chad@fillmorefirm.com 

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

Omaha, NE 68114 

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

mmchale@thomasmoresociety.org THOMAS MORE SOCIETY – Special Counsel 

 5101 Old Highway 5, Box 442 

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

Hochschild Law Firm (559)744-3664

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

PO Box 401 

Plainfield, VT 05667 

(314)503-0326 

adam@hochschildlaw.com 

Mary Catherine Hodes, pro hac vice

THOMAS MORE SOCIETY – Special Counsel 

112 S. Hanley Rd., Second Floor 

Clayton, MO 63105 

(314)825-5725 

mchodes@thomasmoresociety.org 

Paul M. Jonna, pro hac vice 

LiMandri & Jonna LLP 

THOMAS MORE SOCIETY – Special Counsel 

P.O. Box 9120 

Rancho Santa Fe, CA 92067 

(858)759-994 

pjonna@limandri.com 

Counsel for Plaintiffs 

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