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

DEFENDANTS’ REPLY

IN SUPPORT OF THEIR MOTION TO DISMISS 

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TABLE OF CONTENTS

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

ARGUMENT.................................................................................................................................. 1

I. This case is moot................................................................................................................. 1

II. No exception to mootness applies....................................................................................... 5

CONCLUSION............................................................................................................................. 10

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INTRODUCTION

Based on directives from Congress and the Secretary of Defense, the Coast Guard

rescinded the COVID-19 vaccination policy challenged in this case. As a result, Plaintiffs may 

continue to serve in the Coast Guard without becoming vaccinated. Disagreements about the 

lawfulness of the old policy and its enforcement are “no longer embedded in any actual controversy 

about the plaintiffs’ particular legal rights.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). 

Nothing in Plaintiffs’ opposition alters that conclusion. The post-rescission remedies that 

Plaintiffs press for are beyond the scope of their complaint or otherwise unavailable. And none of 

the various exceptions to mootness can sustain this action. Accordingly, the Court should deny 

Plaintiffs’ outstanding motions and dismiss the case as moot.

ARGUMENT

I. This case is moot. 

Plaintiffs sued to stop the Coast Guard from enforcing the vaccination policy against them 

(and others similarly situated) because they believed, contrary to Defendants’ determinations, that 

they should be exempt based on their sincerely-held religious beliefs and their supposed acquired 

immunity to COVID-19. See, e.g., Compl. ¶¶ 2, 449, 460. According to Plaintiffs, Defendants’ 

exemption proceduresforced them to choose between their careers, on one hand, and their religious 

beliefs, on the other. See, e.g., id. ¶¶ 1, 239, 247–248. To remedy those harms, Plaintiffs asked 

this Court to declare that imposing the Coast Guard’s COVID-19 vaccination policy on them 

would violate their rights and to “prohibit[] Defendants . . . from enforcing the [policy] against 

Plaintiffs or any member of the Class and from taking any adverse action against Plaintiffs or any 

member of the Class on the basis of this lawsuit or of Plaintiffs’ or any member’s request for 

religious accommodation related to the Mandates.” Compl. at 66 (prayer for relief). 

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The rescission of the Coast Guard’s COVID-19 vaccination policy has rendered Plaintiffs’ 

contentions academic. Whether or not Defendants properly determined that Plaintiffs should be 

vaccinated against COVID-19, Plaintiffs are no longer subject to any such requirement. And 

because they are no longer required to become vaccinated in order continue serving in the Coast 

Guard, Plaintiffs would not obtain any practical benefit from an order declaring the former

requirement invalid or prohibiting its theoretical application to them. Under these circumstances,

the case is moot, and the Court cannot continue to exercise jurisdiction over the case.1

Plaintiffs resist this conclusion, claiming they “continue to face pressure to violate their 

religious beliefs and continue to face ongoing harm, absent Court-ordered relief.” Pls.’ Opp’n, 

ECF No. 72, at 9. But each example of alleged “pressure” does not maintain a live controversy 

here. Moreover, this lawsuit sought to enjoin a legal requirement to become vaccinated, which is 

no longer in place, and the Court lacks jurisdiction to continue to review Plaintiffs’ general 

concerns about the conditions of their ongoing service. No policy requires them to be vaccinated, 

the Coast Guard has taken steps to rescind prior adverse records, and no ongoing concern has 

ripened into an actual Article III case or controversy. Further, contrary to Plaintiffs’ assertions, Pls.’ 

Opp’n 9, the Coast Guard does not currently consider a service members’ vaccination status for 

personnel purposes. And an order finding that the prior COVID-19 vaccination policy was

invalidly applied to Plaintiffs would not preclude Plaintiffs from being subject to some future, 

more narrowly tailored policy. Cf. Compl ¶ 163 (“Plaintiffs do not oppose all vaccines.”). 

1 Plaintiffs propose that, if the Court is inclined to grant Defendants’ motion, it should 

instead grant leave for Plaintiffs to amend their complaint. See Pls.’ Opp’n 10 n.9. But that route 

is unavailable: Now that this case has become moot, it is too late for Plaintiffs to amend. See 

Whitmire v. Victus Ltd., 212 F.3d 885, 888 (5th Cir. 2000).

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Plaintiffs complain about past harm to their service records, including lost promotions and 

negative performance reviews. Pls.’ Opp’n 9. But the injunctive remedies they seek for those 

harms are not encompassed within the complaint’s demand to “prohibit[]” enforcement of the 

vaccination requirement. Compl. at 66 (prayer for relief); cf. Colonel Financial Management 

Officer v. Austin, No. 8:22-cv-1275-SDM-TGW, 2023 WL 2764767, at *2 (M.D. Fla. Apr. 3, 2023) 

(“plaintiffs have repeatedly phrased their request for relief as a preliminary injunction against 

application of the COVID-19 vaccine mandate to religiously objecting service members . . . .”). 

Even assuming away the limited scope of Plaintiffs’ complaint, the harms Plaintiffs now identify 

do not rise to the level of a constitutional injury. As a group, Plaintiffs contend that they are all 

aggrieved by the substitution of “injurious remarks” in their personnel records in lieu of CG-3307s 

noting their non-compliance with the Coast Guard’s past policy.2

 See Pls.’ Opp’n at 10. But the 

memorandum that remains in their service records simply documents that the prior adverse record 

(GC-3307) was removed, in accord with how the military generally corrects its records. See 

Lemorie Decl. ¶ 4, Supp. App’x 002–03. That documentation does not harm Plaintiffs, particularly 

where it is not among the personnel files reviewed by promotion boards, and simply ensures that 

there is an accurate record of the changes to Plaintiffs’ files. See id. For his part, Plaintiff Stone 

claims that his most recent evaluation was “downgrade[d]” because he was unable to complete a 

required training while unvaccinated, see Pls.’ Opp’n 9, yet his own declaration reveals that his 

vaccination status did not, as a matter of policy, preclude him from participating in the training, 

see Pls.’ App’x, ECF No. 73, at 6. And the claim that he was downgraded based on his vaccination 

2 As explained in the Declaration of Michael Lemorie, BM1 Jackson’s CG-3307 was 

removed on April 12, 2023. See Lemorie Decl. ¶ 4, Supp. App’x 002.

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status is unsubstantiated.

3

 In a similar vein, Plaintiff Marcenelle is dissatisfied that he has not yet 

been granted a promotion to Lieutenant or been told when a special board might convene to 

consider his potential promotion. See Pls.’ Opp’n 10. But the Coast Guard will give him another 

look in the next promotion cycle. Moreover, if a special board ultimately is empaneled and 

recommends Marcenelle for promotion, he can receive back pay. See 14 USC 2120(d)(1)–(2). 

Finally, relying on the declaration of retired Vice Admiral Lee, Plaintiffs complain that 

Defendants have failed to remedy various harms to their professional reputations. See Pls.’ Opp’n 

9–11; see also Pls.’ App’x 251. Such reputational injuries cannot sustain the Court’s jurisdiction. 

See Danos v. Jones, 652 F.3d 577, 584 (5th Cir. 2011) (“[W]here reputational injury is the lingering 

effect of an otherwise moot aspect of a lawsuit, no meaningful relief is possible and the injury 

cannot satisfy the requirements of Article III.” (quotation omitted)). And even if that were not the 

case, Plaintiffs fail to explain how a court order declaring the old vaccination policy invalid would 

redress their reputational harms. Cf. Allied Home Mortg. Corp. v. HUD, 618 F. App’x 781, 787 

(5th Cir. 2015) (per curiam) (relief must be effective). 

The tide of judicial authority supports a finding of mootness. In Roth v. Austin, the United 

States Court of Appeals for the Eighth Circuit dismissed an appeal about military vaccination 

requirements, noting that the NDAA and subsequent rescission memorandum “afford[ed] 

[Plaintiffs] the requested relief” and that the vaccination policy was not likely to be reinstated. 62 

F.4th 1114, 1119 (8th Cir. 2023); see also id. at 1119–20 (Stras, J., concurring) (noting that “the 

3 A review of Stone’s evaluation reveals no reference to non-compliance with the past 

vaccination requirement; indeed, the evaluation is overwhelmingly positive. See Pls.’ App’x 9 

(“Recommended for promotion w/best of peers . . . [r]ecommended for high vis assignments 

including: Congressional Affairs and Flag aide”). To the extent that Stone hoped to obtain higher

marks akin to those he received in the previous review cycle (when he was also non-compliant

with the vaccination requirement), the discrepancy seems most attributable to his transition to a 

desk job and the related change in supervisors. Compare id., with ECF No. 6 at 40.

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case is now moot” and that the plaintiffs “do not need relief from a mandate that no longer exists”).

And in Colonel Financial Management Officer, the United States District Court for the Middle 

District of Florida issued an indicative ruling that challenges to the Marine’s and Navy’s rescinded 

vaccination requirements are moot. See 2023 WL 2764767, at *2 (citing, among others, Navy 

SEAL 1 v. Austin, No. 22-5114, 2023 WL 2482927 (D.C. Cir. Mar. 10, 2023)). The court noted 

that “recurrence of the military’s challenged conduct seems . . . remote and implausible.” Id.

II. No exception to mootness applies.

Collateral Consequences. As their principal defense to mootness, Plaintiffs invoke the 

collateral-consequences doctrine. See Pls.’ Opp’n 8–11. Pursuant to that doctrine, courts have 

recognized that, in limited circumstances, even if “a litigant’s primary stake in the outcome [of his 

case] becomes moot[,] . . . some ‘collateral consequence’ of the litigation’s outcome [may] 

persist[]” and maintain the court’s jurisdiction. Alwan v. Ashcroft, 388 F.3d 507, 511 (5th Cir. 

2004) (quoting Spencer v. Kemna, 523 U.S. 1, 8 (1998)). As discussed above, Plaintiffs proffer a 

list of grievances left unresolved by the rescission of the Coast Guard’s COVID-19 vaccination 

policy. See Pls.’ Opp’n 9; see also id. at 5–7 (further detailing Plaintiffs’ unresolved concerns). 

But none amount to the sort of collateral consequence sufficient to stave off mootness. 

Some of Plaintiffs’ grievances—particularly those concerning the requirement to 

quarantine if they contract COVID-19 and potential future vaccination requirements for certain 

assignments or deployments—are independent of the rescinded policy and would not be impacted 

by a decision on Plaintiffs’ claims against it. See Mendoza-Flores v. Rosen, 983 F.3d 845, 848 (5th 

Cir. 2020) (“Collateral consequences must stem from the underlying cause of action to salvage 

justiciability.”); cf. Holloway v. City of Va. Beach, 42 F.4th 266, 275 (4th Cir. 2022) (following 

amendment of law, awarding injunctive relief based on alleged illegality of prior law would 

“ha[ve] things backwards”). Many other grievances, including Plaintiffs’ fears about future 

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vaccination requirements and possible impacts on their service reputations and, consequently,

future career prospects, are too speculative and inchoate to give rise to a case or controversy. See 

Bailey v. Southerland, 821 F.2d 277, 279 (5th Cir. 1987). Others concern “discretionary decisions,”

Spencer, 523 U.S. at 13, like performance reviews and promotions, that are not reflexively 

determined by the mere fact of Plaintiffs’ non-compliance with past policy. And ultimately, none 

constitute legal consequences stemming from the rescinded vaccination policy or flowing from 

any failure to adjudicate Plaintiffs’ claims against it. See Johnson v. City of Opelousas, 658 F.2d 

1065, 1068 (5th Cir. 1981) (rejecting reliance on consequences “of a social nature” in light of “the 

established law that only possible collateral legal consequences may maintain one’s personal 

interest” in an adjudication (emphasis added)); Mendoza-Flores, 983 F.3d at 848; Log Cabin 

Republicans v. United States, 658 F.3d 1162, 1167 (9th Cir. 2011) (collateral-consequences 

doctrine did not apply in constitutional challenge to “Don’t Ask, Don’t Tell” policy because, 

although discharged service members may have lost several benefits due to their separation, 

“missed benefits are not legal penalties from past conduct”), overruled on other grounds by Bd. of 

Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195 (9th Cir. 2019). 

Contending otherwise, Plaintiffs rely on Connell v. Shoemaker, 555 F.2d 483 (5th Cir. 

1977), and Dailey v. Vought Aircraft Co., 141 F.3d 224 (5th Cir. 1998), see Pls.’ Opp’n 8, 10–11, 

but neither case controls here. Both of those decisions applied the collateral-consequences 

doctrine because, absent judicial review, the plaintiffs were certain to endure severe reputational 

harms that would translate into significant economic harms. That reasoning is inconsistent with 

earlier and later Fifth Circuit precedent holding that only collateral legal consequences trigger the 

collateral-consequences doctrine. See Mendoza-Flores, 983 F.3d at 847; Johnson, 658 F.2d at

1068. And as the Fifth Circuit has noted, see Allied Home Mortg. Corp., 618 F. App’x at 787, it is 

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not clear that Connell’s holding in particular survives the observation that, historically, the 

Supreme Court “ha[s] obviously not regarded” an “interest in vindicating . . . reputation” as 

“constitutionally [s]ufficient to avoid mootness.” Spencer, 523 U.S. at 16 n.8. 

Whatever persuasive value Connell and Dailey may retain, their reasoning does not apply 

here. Both cases concerned reputational harm from potentially erroneous findings of fact on an 

issue central to the plaintiffs’ livelihoods. Yet here, the facts of Plaintiffs’ conduct are not in 

dispute; the only questions pertain to their legal significance under the Coast Guard’s old 

vaccination policy. And the record undermines the suggestion that Plaintiffs suffer meaningful 

reputational harm. See, e.g., Pls.’ App’x 9 (recommending Plaintiff Stone for promotion).

Voluntary Cessation. Plaintiffs also seek to avail themselves of the voluntary-cessation 

exception to mootness, see Pls.’ Opp’n 16–23, but as Defendants have explained, see Defs.’ Br., 

ECF No. 70, at 13–14, that exception is similarly inapplicable here. Plaintiffs contend that the 

Coast Guard’s rescission must be regarded as voluntary, and so the exception must apply, because 

“[t]he NDAA does not apply to the Coast Guard.” Pls.’ Opp’n 17. That would surely come as a 

surprise to Congress. While Section 525 is addressed to the Secretary of Defense and incorporates 

the title of his August 24, 2021 memorandum, “Mandatory Coronavirus Disease 2019 Vaccination 

of Department of Defense Service Members,” the statute’s operative language directs the Secretary 

to “rescind the mandate that members of the Armed Forces be vaccinated against COVID-19” that 

was imposed “pursuant to the memorandum.” James M. Inhofe National Defense Authorization 

Act for Fiscal Year 2023, Pub. L. No. 117-263, 136 Stat. 2395, 2571–72 (2022). And when 

Congress refers to the “armed forces,” that term generally “means the Army, Navy, Air Force, 

Marine Corps, Space Force, and Coast Guard.” 10 U.S.C. § 101(a)(4) (emphasis added). Any 

doubt about whether Congress meant to cover the Coast Guard with its rescission directive is 

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dispelled by Congress’s express characterization, elsewhere in the text of the NDAA, of the Coast 

Guard as part of the “Armed Forces.” Section 1045, 136 Stat. at 2773 (addressing “the case of a 

member of the Armed Forces who is a member of the Coast Guard”). The record also reflects that 

the Coast Guard’s COVID-19 vaccination policy was inextricably linked to the COVID-19 

vaccination directive issued by the Secretary of Defense—so much so that he is named as a 

Defendant in this case.

4

 Where Plaintiffs’ own complaint treats the DOD’s vaccination policy as 

interchangeable and coextensive with the Coast Guard’s policy, see Compl. ¶ 36, there is no basis 

to characterize the Coast Guard’s rescission as unrelated and uniquely voluntary.

Even assuming the voluntary-cessation exception applies, there can be no reasonable 

expectation that the Coast Guard will subject Plaintiffs to the same allegedly unlawful policy in 

the future. See Already, 568 U.S. at 92.

5 As this Court has recognized in related circumstances,

the unique nature of the COVID-19 pandemic renders it “speculative at best” that pandemic era

requirements will be reinstituted. Snider v. Cain, No. 4:20-cv-670-P, 2020 WL 6262192, *3 (N.D. 

Tex. Oct. 23, 2020) (quotation omitted). And contrary to Plaintiffs’ contentions, Defendants 

nowhere “admit[]” that they are likely to reinstitute the rescinded policy (or even a substantially 

similar one). Pls.’ Opp’n 20. Defendants merely acknowledged the possibility that, based on 

developments with COVID-19 virality, advances in vaccine development, and the requirements of 

a given assignment or operation, some personnel within the Coast Guard might someday be subject 

to a more limited COVID-19 vaccination requirement. But Plaintiffs’ claims do not concern any 

4 See, e.g., ALCOAST 305/21 (noting that the Coast Guard instituted its vaccination policy 

to be “[c]onsistent with the Secretary of Defense’s direction” and that COMDTINST M6230.4 

“will be updated to reflect the Secretary of Defense’s direction”); see also 14 U.S.C. § 102(7)

(imposing statutory duty on the Coast Guard to “maintain a state of readiness to assist in the 

defense of the United States, including when functioning as a specialized service in the Navy”). 

5 In meeting this test, Defendants “bear[] a lighter burden to prove that challenged conduct 

will not recur.” Moore v. Brown, 868 F.3d 398, 406–07 (5th Cir. 2017).

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such requirement, and “[t]he potential for a future dispute of another nature, presenting other 

issues, is immaterial” to the voluntary-cessation analysis. Allied Home Mortg. Corp., 618 F. App’x 

at 787. Nor is there anything suspicious about the “timing” of the Coast Guard’s rescission, Pls.’ 

Opp’n 20, which is self-evidently explained by the passage of the NDAA, the Secretary of 

Defense’s rescission order, and the Coast Guard’s familiar practice of remaining consistent with 

the Secretary’s vaccination directives. The rescission was not timed to prevent a decision by this 

Court on Plaintiffs’ motions, which have been fully briefed since October 14, 2022, nor was it 

preceded by any decision invalidating the Coast Guard’s policy. Contrast Texas v. Biden, 20 F.4th 

928, 964 (5th Cir. 2021); see also Col. Fin. Mgmt. Off., 2023 WL 2764767, at *2. Finally, Plaintiffs 

make much of Defendants’ refusal to concede that the old policy violated Plaintiffs’ rights, Pls.’ 

Opp’n 20, “[b]ut the government need not concede unlawful conduct to moot an action by 

rescission of the challenged conduct.” Col. Fin. Mgmt. Off., 2023 WL 2764767, at *2; see also

Eden, LLC v. Justice, 36 F.4th 166, 172 (4th Cir. 2022) (concluding that “mere ability to reimpose 

challenged restrictions is not enough to show a reasonable chance of recurrence”). 

Capable of Repetition Yet Evading Review. Briefly, Plaintiffs also invoke the mootness 

exception for cases capable of repetition yet evading review. See Pls.’ Opp’n 23–24. “That 

exception applies only in exceptional situations, where (1) the challenged action [is] in its duration 

too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable 

expectation that the same complaining party [will] be subject to the same action again.” 

Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016) (quotations omitted). 

Plaintiffs bear the burden to prove these conditions, Spell v. Edwards, 962 F.3d 175, 180 (5th Cir. 

2020), but they have not done so here. 

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On duration, Plaintiffs complain that the Coast Guard took too long to deny their religiousaccommodation requests, leaving insufficient time for them to sue and obtain relief. Pls.’ Opp’n 

23. But “[c]laims need to be judged on how quickly relief can be achieved in relation to the 

specific claim,” Empower Texans, Inc v. Geren, 977 F.3d 367, 370 (5th Cir. 2020) (emphasis 

added), and unlike the prototypical “‘exceptional’ situations” in which this exception may apply, 

namely “cases involving strikes, pregnancies, or elections,” Meadows v. Odom, 198 F. App’x 348, 

351–52 (5th Cir. 2006), vaccination requirements are not typically limited in duration. Indeed, the 

challenged policy was, by its terms, indefinite. Even assuming that a future COVID-19 

vaccination requirement would be limited in duration, there is no reason to expect that diligent 

litigants will find it impossible to obtain review. Cf. Austin v. U.S. Navy SEALs 1–26, 142 S. Ct. 

1301 (2022). And as to “reasonable expectations,” Plaintiffs fail to meet their burden on that prong 

for all the reasons stated supra 8–9. Because “[n]othing within the four corners of [their] complaint 

provides the Court with anything beyond speculation that Defendants might reimpose the 

[rescinded vaccination requirement] or something like it,” Snider, 2020 WL 6262192, at *3,

Plaintiffs have not shown that this case presents issues capable of repetition yet evading review.

CONCLUSION

Plaintiffs may continue to disagree with the Coast Guard’s past vaccination policy. And 

even though that policy is no longer in force, its memory may stir emotions for some time to come. 

But federal courts are “not empowered to decide moot questions . . . or to declare, for the 

government of future cases, principles or rules of law which cannot affect the result as to the thing 

in issue in the case before” them. California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314 

(1893). Because the parties’ disagreements are “no longer embedded in any actual controversy 

about [these Plaintiffs’] particular legal rights,” Alvarez v. Smith, 558 U.S. 87, 93 (2009), the Court 

should deny Plaintiffs’ now-stale motions and dismiss this case as moot.

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Dated: April 14, 2023 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General 

ALEXANDER K. HAAS

Branch Director

ANTHONY H. COPPOLINO

Deputy Branch Director

/s/ Cody T. Knapp 

CODY T. KNAPP (NY Bar #5715438)

JOHNNY H. WALKER (DC Bar #991325)

Trial Attorneys

United States Department of Justice

Civil Division, Federal Programs Branch

1100 L Street NW

Washington, D.C. 20530

Tel.: (202) 532-5663 / Fax: (202) 616-8460

Email: cody.t.knapp@usdoj.gov

Counsel for Defendants

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