UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

SAN ANGELO DIVISION 

LUKE T. CHRISMAN, individually and on 

behalf of all others similarly situated, 

 Plaintiff, 

v. No. 6:22-CV-049-H 

LLOYD J. AUSTIN, III, in his official 

capacity as United States Secretary of 

Defense, et al., 

 Defendants. 

MEMORANDUM OPINION AND ORDER 

This case revolves around the Army’s COVID-19 vaccine mandate and eleven 

service members who declined to receive the vaccine due to their sincerely held religious 

beliefs. Through complex, contentious, and often fast-paced litigation, the ten original 

plaintiffs won a preliminary injunction preventing the defendants from taking adverse action 

against them, but their claims were ultimately mooted out. However, the claims of one 

plaintiff, Luke Chrisman, survived, and the defendants later settled with him. The plaintiffs’ 

attorneys now seek attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. 

The Court grants in part the plaintiffs’ motion for attorneys’ fees and costs (Dkt. No. 

155). Although the ten original plaintiffs are not prevailing parties, Chrisman is a prevailing 

party due to the settlement order in this case. Based on the Court’s calculation of the 

lodestar, the plaintiffs’ attorneys are entitled to recover $942,347.19 in attorneys’ fees and 

costs from the defendants. 

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1. Factual and Procedural Background 

The Court has recounted the factual and procedural background of this case in detail 

in two prior Orders. Dkt. Nos. 78; 139. In short, five active-duty service members in the 

U.S. Army and five cadets at the U.S. Military Academy at West Point (the original 

plaintiffs), along with one separated service member, sued the defendants—each a federally 

appointed Department of Defense (DoD) official—for violating their statutorily and 

constitutionally protected religious rights. Dkt. Nos. 1; 93. The plaintiffs alleged that the 

defendants had substantially burdened their religious exercise by routinely denying their 

religious-exemption requests to the COVID-19 vaccine mandate without any compelling 

interest or use of the least restrictive means to achieve that interest. Id. The plaintiffs thus 

challenged the adverse actions taken against them due to their refusal to vaccinate. Id. 

A. The Army’s Vaccine Mandate 

In August 2021, the military issued its COVID-19 vaccine mandate. Specifically, the 

Department of Defense issued a directive entitled “Mandatory Coronavirus Disease 2019 

Vaccination of Department of Defense Service Members.” Dkt. No. 14 at 6. It directed 

each military branch to pursue “full vaccination” of its service members against COVID-19. 

Id. A service member was considered “fully vaccinated” after receiving an FDA-approved 

or emergency-use vaccine, but not if he had a previous COVID-19 infection. Id. The 

branches were ordered to “promulgate appropriate guidance” and “impose ambitious 

timelines” for implementation of this mandate. Id. at 6–7. 

Taking heed of this mandate, in September 2021, the Army issued Fragmentary 

Order (FRAGO) 5 to Headquarters Department of the Army (HQDA) Execution Order 

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(EXORD) 225-21, “COVID-19 Steady State Operations” (hereinafter FRAGO 5).1 Dkt. 

No. 39-1 at 264. FRAGO 5 provided that any soldier who refused to take the vaccine 

without an approved exemption must be “legally ordered to do so.” FRAGO 5 ¶ 3.D.8.B.2. 

“[F]ailure to obey th[at] order may result in adverse administrative or punitive action.” Id. 

The Army’s vaccine mandate allowed for two types of exemptions: medical and 

administrative. Id. ¶ 3.D.8.B.5. Medical exemptions “may be temporary (up to 365 days) 

or permanent.” Id. ¶ 3.D.8.B.5.A. Administrative exemptions included religious 

exemptions and those provided for in the Army’s existing policies, including exemptions for 

soldiers already near the end of their service. Id. ¶ 3.D.8.B.5; see also Army Regulation 

40-562 ¶ 2-6(b), Immunizations and Chemoprophylaxis for the Prevention of Infectious 

Diseases (Oct. 7, 2013). An applicant’s healthcare provider could unilaterally approve a 

temporary medical exemption, and a permanent medical exemption only required approval 

from the Regional Health Command-Commanding General where the applicant was 

assigned. Dkt. No. 39-1 at 267–68. A denial of a permanent medical exemption could be 

appealed to the Surgeon General. Id. at 268. 

In contrast, a religious exemption required the applicant to submit a request in 

memorandum format and meet with a chaplain, healthcare provider, and immediate 

commander. Id. at 268–70. The request was then processed up the chain of command to 

the Surgeon General, with each commander making a recommendation of approval or 

denial. Id. If the request was denied, the applicant could appeal to the Assistant Secretary 

of the Army (Manpower and Reserve Affairs) (ASA (M&RA)), but the appeal had to go 

1

 Available at: https://armyreup.s3.amazonaws.com/site/wp-content/uploads/2021/09/

14205311/FRAGO-225-21.pdf [https://perma.cc/W2D9-X27H]. 

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through the soldier’s entire chain of command again, with updated recommendations, and a 

new chaplain and medical provider would conduct a supplementary review of the record. 

Dkt. No. 71 at 10–11. 

FRAGO 5 stated that the review process must comply with the Army’s existing 

policies regarding religious exemptions, which specifically implicated the Religious 

Freedom Restoration Act (RFRA). FRAGO 5 ¶ 3.D.8.B.5.B; see DoD Instruction 1300.17 

¶ 3.2(d), Religious Liberty in the Military Services (Sept. 1, 2020);2

 Army Regulation 600-20 

¶ 5-6(a)(4), Army Command Policy (July 24, 2020).3

 However, the military struggled to 

comply with the applicable standards. See Dkt. No. 14 at 26. As of December 8, 2022, the 

Army had denied 1,913 religious-exemption requests and approved 123. Dkt. No. 71 at 8. 

Further, the Army set forth dire consequences for those who refused the vaccine. 

Pursuant to a directive by the Secretary of the Army, an unvaccinated soldier would be 

“flagg[ed]” until “[he] [was] fully vaccinated, receive[d] an approved medical or 

administrative exemption, or [was] separated from the Army.” Dkt. No. 14 at 13. Flagged 

soldiers were not eligible for “[f]avorable personnel actions,” including, but not limited to, 

reenlistment, promotion, attendance at military and civilian schools, or assumption of 

command. Id. at 14. Commanders were also authorized to “impose bars to continued 

service . . . for all [s]oldiers who refuse the mandatory vaccination order without an 

approved exemption or a pending exemption request.” Id.

2

 Available at: https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/130017p.pdf 

[https://perma.cc/72DB-D7S5]. 

3

 Available at: https://www.armyresilience.army.mil/ard/images/pdf/Policy/600-20%20Army%20

Command%20Policy.pdf [https://perma.cc/ZX58-HC7J]. 

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If the soldier’s request for an exemption was denied, in accordance with FRAGO 5, 

his commander would request issuance of a General Officer Memorandum of Reprimand 

(GOMOR). Dkt. No. 39-1 at 274. The soldier would receive an opportunity to respond, 

and the General Officer would decide whether to store the GOMOR in the soldier’s 

permanent file. Id. at 275. In addition, under FRAGO 5 and a second directive by the 

Secretary of the Army, commanders were required to initiate separation proceedings against 

a noncompliant soldier. Id.; Dkt. No. 14 at 18. The basis for any such separation was, with 

respect to enlisted personnel, the “Commission of a Serious Offense”; with respect to 

officers, “Misconduct, Moral or Professional Dereliction”; and with respect to cadets, 

“Misconduct.” Dkt. No. 14 at 18–19, 21. Barring any “additional misconduct,” personnel 

separated on this basis were “issued either an Honorable or General (under honorable 

conditions) characterization of service.” Id. at 18. They were “not . . . eligible for 

involuntary separation pay” and “may be required to repay” portions of “unearned” 

advancements. Id. at 20. Exceptions were made for soldiers who voluntarily separated or 

retired and for soldiers close to the end of their service, but commanders were otherwise 

directed to process separation actions “as expeditiously as possible.” Id. at 18–20. 

B. The Original Plaintiffs 

The ten original plaintiffs brought suit challenging the Army vaccine mandate in 

October 2022. Each had requested an exemption to the mandate due to religious opposition 

to the use of fetal cell lines in developing the COVID-19 vaccine. Dkt. No. 14 at 37, 64, 99, 

122, 149, 184, 225, 261, 281, 319. The plaintiffs’ assigned chaplains had confirmed the 

sincerity of their beliefs. Dkt. Nos. 14 at 43, 80, 101, 123, 152, 232, 259, 284, 321; 39 at 

246. However, the Surgeon General denied each plaintiff’s request for a religious 

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exemption in strikingly similar denial letters, with boilerplate language. See Dkt. Nos. 14 at 

46, 124, 161, 193, 233, 263, 287, 327; 39 at 59, 95. And on appeal, the ASA (M&RA) 

affirmed the denials with uniform template letters and boilerplate language. See Dkt. Nos. 

14 at 91, 113, 137, 205, 253, 273, 292; 37-2 at 2. 

After submitting their requests for religious exemptions, the plaintiffs received 

adverse treatment by the Army. They collectively complained of having been passed over 

for leadership roles, Dkt. No. 14 at 182; barred from attending career-advancing courses and 

trainings, id. at 33, 120, 279–80, 314–15; restricted from transferring to different posts, id. at 

315; precluded from participating in events, trips, internships, and athletics, id. at 97, 182, 

223, 260; and harassed and alienated by leadership, id. at 62, 223. Nearly every plaintiff had 

been issued a GOMOR from his commander, formally denoting the Army’s initiation of 

separation proceedings against him for his refusal to obey the “lawful order” that he take the 

COVID-19 vaccine. Dkt. Nos. 14 at 207; 39-1 at 364, 366–67; 47-1 at 2, 4, 6; 56-1 at 2. 

The original plaintiffs alleged that the defendants had violated their rights under 

RFRA and the First Amendment by substantially burdening their sincerely held religious 

beliefs without a compelling interest or narrow tailoring to achieve that interest. Dkt. No. 1 

¶¶ 54–71. The plaintiffs sought relief in the form of: (1) a declaration that the challenged 

actions were unconstitutional and illegal; (2) class certification of those similarly situated to 

the plaintiffs; (3) a preliminary injunction enjoining the defendants from taking punitive 

action against the plaintiffs and those similarly situated due to their requests for religious 

exemptions to the vaccine mandate; and (4) a permanent injunction (i) enjoining the 

defendants from retaliating, discriminating, or taking punitive measures against those who 

participate in this litigation or request a religious exemption, (ii) directing the defendants to 

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“discontinue their religious discrimination and eradicate it root and branch,” and 

(iii) directing the defendants to reprocess religious-exemption requests without 

discrimination and provide restorative relief as necessary. Id. at 22–23. 

C. The Preliminary Injunction 

The original plaintiffs then sought a preliminary injunction to “enjoin [the 

d]efendants from taking further punitive actions” against them due to their refusal to take 

the COVID-19 vaccine “in violation of their sincerely held religious beliefs.” Dkt. No. 29 at 

1. The motion was fully briefed (Dkt. Nos. 38; 46), and the parties presented argument and 

evidence to the Court in a hearing (Dkt. No. 77). 

The Court then granted the preliminary injunction on December 21, 2022. Dkt. No. 

78. It found that the plaintiffs were likely to succeed on their claim under RFRA because 

they “met their burden of demonstrating the sincerity of their religious beliefs and the 

substantial burden imposed by the vaccine mandate on their religious exercise,” and the 

defendants failed to “demonstrat[e] a compelling governmental interest in burdening the 

plaintiffs’ religious exercise or that the vaccine mandate is the least restrictive means to 

achieve that interest.” Id. at 41–42, 63. The Court also found that the plaintiffs would be 

irreparably harmed apart from preliminary relief. Id. at 59. 

Thus, the Court enjoined the defendants “from taking or continuing any disciplinary, 

punitive, or separation measures against the plaintiffs,” including but not limited to 

“adverse administrative actions, non-judicial punishment, administrative demotions, 

administrative discharges, and courts-martial.” Id. at 63. The Court further ordered that 

“[t]he defendants may not initiate or continue any administrative separation or punitive 

processes against the named plaintiffs.” Id. Additionally, the Court prohibited the 

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defendants from “process[ing] any of the cadet-plaintiffs through administrative boards due 

to their vaccination status or impos[ing] any other measures that interrupt their ability to 

undertake their course of study, including discontinuing or prohibiting them from attending 

classes.” Id. The Court declined, however, to “preclude the defendants from considering 

the plaintiffs’ vaccination status in making deployment, assignment, and other operational 

decisions.” Id. (citing Austin v. U.S. Navy Seals 1–26, 142 S. Ct. 1301, 1301 (2022)). 

D. The Rescission of the Mandate 

However, when it granted the preliminary injunction, the Court noted that Congress 

had recently passed the James M. Inhofe National Defense Authorization Act for Fiscal 

Year 2023 (NDAA). Id. at 3. The NDAA provided that “[n]ot later than 30 days” after its 

enactment, “the Secretary of Defense shall rescind the mandate that members of the Armed 

Forces be vaccinated against COVID-19.” Pub. L. No. 117-263, § 525, 136 Stat. 2395, 2571 

(2022). The President signed the NDAA into law on December 23, 2022. Id. In response, 

the Army immediately suspended separation proceedings against soldiers who had declined 

to receive the COVID-19 vaccine. FRAGO 35 to HQDA EXORD 225-21 ¶ 3.D.28. 

In accordance with this congressional directive, on January 10, 2023, Secretary of 

Defense Lloyd Austin formally rescinded the order that had mandated the vaccination of 

active-duty service members across the military. Dkt. No. 108 at 46. Secretary Austin 

declared that “[n]o individuals currently serving in the Armed Forces shall be separated 

solely on the basis of their refusal to receive the COVID-19 vaccination if they sought an 

accommodation on religious . . . grounds.” Id. Secretary Austin also directed the military 

to “update the records of such individuals to remove any adverse actions solely associated 

with denials of such requests, including letters of reprimand.” Id. Accordingly, the Army 

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ordered the “immediate[]” suspension of “adverse administrative actions based solely on a 

soldier’s refusal to comply with the rescinded mandate.” FRAGO 37 to HQDA EXORD 

225-221 ¶ 3.D.30. 

Deputy Secretary of Defense Kathleen Hicks then issued a memorandum confirming 

that, in accordance with the NDAA, the rescission of the COVID-19 vaccine mandate 

“thereby also rendered all DoD Component policies, directives, and guidance 

implementing” the mandate “as no longer in effect.” Dkt. No. 108 at 90. Secretary Hicks 

thus directed each military branch to “formally rescind” any conforming guidance still in 

place “as soon as possible” to the extent it had not already done so. Id. 

Secretary of the Army Christine Wormuth then issued guidance “[a]ccordingly . . . 

rescind[ing] all Department of the Army policies specifically associated with the 

implementation of the COVID-19 vaccination mandate.” Id. at 92. She ordered that “[n]o 

currently serving Soldier shall be separated based solely on [his] refusal to receive the 

COVID-19 vaccine if [the soldier] sought an exemption on religious . . . grounds.” Id. She 

directed the Army to update the personnel records of soldiers whose religious-exemption 

requests were denied by rescinding all pending involuntary-separation actions, favorably 

closing flags and removing GOMORs and other adverse actions, eliminating any bars to 

their continued service, and correcting negative evaluation reports related to their refusal to 

vaccinate. Id. at 93–94. Secretary Wormuth also stated that she “continue[d] to withhold 

the authority to impose any non-judicial and judicial actions based solely on a Soldier’s 

refusal to receive the COVID-19 vaccine while the mandate was in effect.” Id. at 93. 

However, for soldiers who had already been discharged, Secretary Wormuth advised that 

they must exhaust administrative processes, including “petition[ing] the Army Discharge 

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Review Board and the Army Board for Correction of Military Records to request 

corrections to their personnel records,” such as “records regarding the characterization of 

their discharge.” Id. at 95. The Army then carried out Secretary Wormuth’s orders. 

HQDA EXORD 174-23 ¶¶ 3.A.1.B, 3.C.1.B, 3.C.1.C–G, 3.D.1. 

E. The Amended Complaint and the Motion to Dismiss 

In the wake of the NDAA, the defendants moved to dismiss this case. Dkt. No. 88. 

In response, the plaintiffs filed an amended complaint. Dkt. No. 92. The amended 

complaint added a new plaintiff, Luke Chrisman, who was separated from the Army in 

November 2022 due to his refusal to comply with the vaccine mandate after the denial of his 

religious-exemption request. Id. at 15–16. Thus, in addition to the relief requested in their 

initial complaint (Dkt. No. 1), the plaintiffs asked the Court to, with respect to Chrisman 

and others similarly situated to him, upgrade their discharges to “honorable,” remove 

adverse characterizations and prohibitive re-enlistment codes from personnel files, and offer 

reinstatement. Id. at 34. 

The amended complaint also asked the Court to order the removal of any adverse 

actions or reports from personnel records and “direct the institution of special promotion 

selection boards” to consider promotions for those who were denied a promotion or denied 

the ability to attend a course required for promotion. Id. Moreover, the plaintiffs asked the 

Court to enjoin and direct the revision of the Army’s current policy for evaluating religiousexemption requests to immunization requirements, specifically “preventing [the d]efendants 

from using generalized compelling interests to determine whether a Soldier is eligible for an 

exemption and implementing a double standard for the processing of medical or other 

administrative exemptions.” Id. at 35. 

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The defendants then moved to dismiss the amended complaint, arguing that the 

rescission of the vaccine mandate rendered the case moot. Dkt. No. 105. The Court 

granted in part and denied in part the motion to dismiss. Dkt. No. 139. It determined that 

the defendants’ rescission of the vaccine mandate and its implementing guidance, including 

its removal of adverse actions and halting of separation proceedings, was involuntary and 

largely mooted the plaintiffs’ claims. Id. at 21–26. The Court also found that any voluntary 

action in precluding commanders from considering vaccination status in operational 

decisions was entitled to a presumption of good faith and that no other exception to 

mootness applied. Id. at 26–38, 41–42. As a result, the plaintiffs’ motion for class 

certification was also moot. Id. at 39–40. 

The Court then determined that the original plaintiffs lacked standing because they 

could not demonstrate a continuing injury-in-fact. Id. at 42–64. Among other reasons, the 

defendants had taken all reasonable measures to remove adverse actions from those 

plaintiffs’ records, and there was no credible threat of prosecution by the defendants against 

the plaintiffs. Id. at 43–45, 54–60. However, the Court concluded that Chrisman’s claim 

remained live. Id. at 64–71. He had alleged a continuing injury in the form of his 

separation and general discharge citing “Misconduct (Serious Offense),” and the Court 

concluded that he did not need to administratively exhaust his claims. Id.

Accordingly, the Court approved the joint stipulation of dismissal of the claims of six 

plaintiffs (Dkt. No. 122) and dismissed without prejudice the claims of the remaining 

original plaintiffs. Id. at 77–78. It also denied the pending motions for class certification 

(Dkt. No. 48), a class-wide preliminary injunction (Dkt. No. 50), and to update the class 

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definition (Dkt. No. 95) as moot without prejudice. Id. at 78. However, Chrisman’s claim 

continued. Id.

F. Current Posture 

About two months after the Order resolving the motion to dismiss, Chrisman and the 

defendants settled this case at mediation, and the Court signed and entered the parties’ 

Agreed Order Resolving Claims. Dkt. Nos. 150; 151. The agreed order required the 

defendants to make certain corrections to Chrisman’s military records: 

A. Correction of Plaintiff Chrisman’s Form DD-214 . . . : 

i. Upgrade of Plaintiff Chrisman’s discharge characterization to 

“Honorable.” 

ii. Correction of the narrative explanation provided for Plaintiff 

Chrisman’s separation to “Secretarial Authority.” 

iii. Correction of Plaintiff Chrisman’s separation code to correspond 

with the corrected narrative explanation. 

iv. Correction of Plaintiff Chrisman’s reentry code to “1.” 

B. Defendants shall remove other adverse actions on Plaintiff 

Chrisman’s military records related to the substance of this matter, 

including removal of Plaintiff Chrisman’s General Officer 

Memorandum of Reprimand. 

Dkt. No. 150 at 1–2. The Court retained jurisdiction to enforce the required corrections and 

over any claim for attorneys’ fees and costs. Id. at 2. All other claims were dismissed with 

prejudice. Id. 

The plaintiffs then moved for an award of attorneys’ fees and costs, pursuant to 42 

U.S.C. § 1988. Dkt. No. 155. The defendants responded (Dkt. No. 160), and the plaintiffs 

replied (Dkt. No. 166). The Court then granted the defendants leave to file a surreply (Dkt. 

No. 171), which they did (Dkt. No. 175). The motion is ripe for consideration. 

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2. Standard of Review 

Under the “American Rule,” parties must generally bear their own attorneys’ fees. 

See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). However, under 

42 U.S.C. § 1988, “[i]n any action or proceeding to enforce a provision of . . . the Religious 

Freedom Restoration Act of 1993 . . . the court, in its discretion, may allow the prevailing 

party, other than the United States, a reasonable attorney’s fee as part of the costs[.]” 42 

U.S.C. § 1988(b). Such awards in civil-rights cases “facilitate plaintiffs’ access to the courts 

to vindicate their rights by providing compensation sufficient to attract competent counsel.” 

McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011). 

As a threshold matter, courts must determine whether the party seeking fees is a 

“prevailing party.” A plaintiff prevails “when actual relief on the merits of his claim 

materially alters the legal relationship between the parties by modifying the defendant’s 

behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111–12 

(1992). Once this standard is met, “a prevailing plaintiff should ordinarily recover an 

attorney’s fee unless special circumstances would render such an award unjust.” Hensley v. 

Eckerhart, 461 U.S. 424, 429 (1983) (internal quotation marks and quotation omitted). 

Then, the court must determine what fee is “reasonable,” using a two-step process. 

Id. at 433. First, it must calculate the lodestar, or “the number of hours reasonably 

expended multiplied by the prevailing hourly rate in the community for similar work.” 

Jimenez v. Wood County, 621 F.3d 372, 379 (5th Cir. 2010), revised on other grounds, 660 F.3d 

841 (5th Cir. 2011) (en banc). The movant must show “the reasonableness of the hours 

billed and that the attorneys exercised billing judgment.” Black v. SettlePou, P.C., 732 F.3d 

492, 502 (5th Cir. 2013). Such a showing requires an adequate record “of the hours charged 

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and of the hours written off as unproductive, excessive, or redundant.” Saizan v. Delta 

Concrete Prods. Co., 448 F.3d 795, 799 (5th Cir. 2006). The record cannot be “so vague” as to 

“preclude[] meaningful review” of the work performed during the hours specified. League of 

United Latin Am. Citizens No. 4552 (LULAC) v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1233 

(5th Cir. 1997). The movant must also produce evidence “that the requested rates are in 

line with those prevailing in the relevant community for similar services by lawyers of 

reasonably comparable skill, experience and reputation.” Wheeler v. Mental Health & Mental 

Retardation Auth. of Harris Cnty., 752 F.2d 1063, 1073 (5th Cir. 2013). 

Second, the court may adjust the lodestar upwards or downwards based on the 

twelve Johnson factors. Jimenez, 621 F.3d at 380. “[T]here is a ‘strong presumption’ that the 

lodestar figure is reasonable” because it generally already accounts for “most, if not all, of 

the relevant factors constituting a ‘reasonable’ attorney’s fee.” Perdue v. Kenny A. ex rel. 

Winn, 599 U.S. 542, 553–54 (2010) (quoting Pennsylvania v. Del. Valley Citizens’ Council for 

Clean Air, 478 U.S. 546, 566 (1986)). However, if the lodestar does not in fact adequately 

account for a relevant factor, an adjustment may be justified. See id. at 554. The court may 

consider: (1) the time and labor required; (2) the novelty and difficulty of the issues in the 

case; (3) the skill required to perform the legal services properly; (4) the preclusion of other 

employment by the attorney due to acceptance of the case; (5) the customary fee charged for 

those services in the relevant community; (6) whether the fee is fixed or contingent; (7) time 

limitations imposed by the client or the circumstances; (8) the amount involved and the 

results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 

undesirability of the case; (11) the nature and length of the professional relationship with the 

client; and (12) awards in similar cases. Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 

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717–79 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989). 

Again, to avoid double counting, any factor accounted for in the initial lodestar calculation 

cannot justify further adjustment. Black, 732 F3d at 502. 

3. Analysis 

In this case, Chrisman is a prevailing party entitled to recover attorneys’ fees. 

However, the original plaintiffs are not prevailing parties, and the Court adjusts the lodestar 

calculation accordingly. Chrisman may recover $921,106.25 in attorneys’ fees and 

$21,240.94 in costs, for a total of $942,347.19. 

A. The original plaintiffs are not prevailing parties, but Chrisman is a 

prevailing party. 

The Court concludes that the ten original plaintiffs are not prevailing parties under 

Fifth Circuit precedent because the preliminary injunction did not cause the defendants to 

moot this case. However, Chrisman is a prevailing party because the requirements of the 

agreed order in this case provided him with judicially sanctioned, material relief. Thus, 

Chrisman is entitled to recover attorneys’ fees. 

A plaintiff is a prevailing party when there has been a “material alteration of the legal 

relationship of the parties in a manner which Congress sought to promote in the fee statute.” 

Tex. State Tchrs. Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989). A plaintiff 

need not win on every claim; it is enough if he “has succeeded on ‘any significant issue in 

litigation which achieve[d] some of the benefit the parties sought in bringing suit.’” Id. at 

791–92 (alteration in original) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278–79 (1st Cir. 

1978), abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health 

& Hum. Res., 532 U.S. 598 (2001)). However, if “the plaintiff’s success on a legal claim can 

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be characterized as purely technical or de minimis,” he is not properly a prevailing party. Id.

at 792. 

The Fifth Circuit applies a three-part test for prevailing-party status: “(1) the plaintiff 

must achieve judicially-sanctioned relief, (2) the relief must materially alter the legal 

relationship between the parties, and (3) the relief must modify the defendant’s behavior in a 

way that directly benefits the plaintiff at the time the relief is entered.” Romain v. Walters, 

856 F.3d 402, 406 (5th Cir. 2017) (quoting Petteway v. Henry, 738 F.3d 132, 137 (5th Cir. 

2013)). In other words, there must be “a court-ordered change in the legal relationship 

between the plaintiff and the defendant.” Buckhannon, 532 U.S. at 604 (cleaned up) (quoting 

Tex. State Tchrs. Ass’n, 489 U.S. at 792). The original plaintiffs fail this test, but Chrisman 

passes it. 

i. The preliminary injunction does not make the original plaintiffs 

prevailing parties. 

Although the original plaintiffs were granted a preliminary injunction in this case, 

they are not prevailing parties because that success did not cause the requisite changes in the 

parties’ legal relationship or the defendants’ conduct. The Supreme Court has not yet 

addressed the question of whether winning a preliminary injunction makes a plaintiff a 

prevailing party if there is no final decision on the merits. See Sole v. Wyner, 551 U.S. 74, 83 

(2007); but see Stinnie v. Holcomb, 77 F.4th 200, 203 (4th Cir. 2023) (addressing “whether a 

preliminary injunction may ever confer ‘prevailing party’ status under 42 U.S.C. 

§ 1988(b)”), cert. granted sub nom. Lackey v. Stinnie, 144 S. Ct. 1390 (2024) (No. 23-621). 

However, under Fifth Circuit precedent, a plaintiff can sometimes be a prevailing party if 

his “sought-for preliminary injunction has been granted and the case is thereafter mooted 

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before a final judgment on the merits.” Amawi v. Paxton, 48 F.4th 412, 418 (5th Cir. 2022). 

In that circumstance, a plaintiff: 

(1) must win a preliminary injunction, (2) based upon an unambiguous 

indication of probable success on the merits of the plaintiff’s claims as 

opposed to a mere balancing of the equities in favor of the plaintiff, 

(3) that causes the defendant to moot the action, which prevents the 

plaintiff from obtaining final relief on the merits. 

Id. at 417–18 (quoting Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008)). Thus, 

when a case becomes moot after the grant of a preliminary injunction, that injunction only 

confers prevailing-party status if the defendants mooted the case because of the injunction. 

See id. at 418. The plaintiff may demonstrate causation by, “for example, . . . establishing a 

compelling timeline, an outright admission, or the statutory language itself.” Id. at 419. 

Ultimately, he must show that the mooting event was a “direct response to the district 

court’s preliminary injunction.” Id. at 418 (emphasis omitted) (quoting Dearmore, 519 F.3d 

at 524). 

The first two requirements of the Dearmore test are easily met here. The original 

plaintiffs won a preliminary injunction based upon an unambiguous indication of probable 

success on the merits. Dkt. No. 78 at 41–59, 63. However, the parties disagree as to 

whether the preliminary injunction caused the defendants to moot this case. The plaintiffs 

assert that “the actual mooting actions—rescission of the adverse actions and a policy not to 

pursue enforcement for past violators who sought religious accommodations—were 

voluntary actions, not required by the NDAA, that post-dated the entry of injunctive relief.” 

Dkt. No. 156 at 15–16. However, the defendants argue that the plaintiffs cannot show a 

causal link between the preliminary injunction and the mooting actions. Dkt. No. 162 at 

13–15. The Court concurs with the defendants. 

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This case closely parallels the situation in Amawi v. Paxton. There, the plaintiffs 

sought to enjoin the enforcement of a Texas statute. 48 F.4th at 415. However, before the 

hearing on the preliminary injunction, the legislature “voted out of committee a new bill . . . 

that would make [the challenged statute] inapplicable to” the plaintiffs. Id. at 415. The 

district court granted the preliminary injunction based on the plaintiffs’ probable success on 

the merits. Id. Then, 12 days after the injunction was granted, the new bill was signed into 

law, which mooted the case. Id. The Fifth Circuit held that the plaintiffs were not 

prevailing parties because they could not “show[] that [the new bill] was passed in direct 

response to the district court’s preliminary injunction.” Id. at 418 (emphasis in original). The 

bill had been introduced in the legislature before the injunction was granted. Id. And the 

plaintiffs had provided no evidence “that the legislature had the preliminary injunction in 

mind when it completed passage of [the bill].” Id. The court also observed that “‘[t]he mere 

fact that a legislature has enacted legislation that moots an [action], without more, provides 

no grounds for assuming that the legislature was motivated by’ the ‘unfavorable precedent.’” 

Id. (alterations in original) (quoting Am. Bar Ass’n v. FTC, 636 F.3d 641, 649 (D.C. Cir. 

2011)). 

Similarly, the preliminary injunction in this case was granted after Congress had 

already passed the NDAA. See Dkt. No. 78 at 3. Like the new bill in Amawi, “[t]he 

introduction of the ameliorative statute . . . predated the district court’s action,” which 

undermines any inference that the mooting action was caused by the preliminary injunction. 

See 48 F.4th at 419. The NDAA was signed into law only a few days after the injunction 

was entered, and there is no indication that the President “had the preliminary injunction in 

mind when [he] completed passage” of the Act. See id. at 418. Finally, Secretary Austin’s 

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rescission of the mandate was “require[d]” by the NDAA. See Dkt. No. 108 at 46. Thus, it 

cannot be said that this Court’s preliminary injunction caused the primary mooting events in 

this case. 

The defendants’ removal of adverse actions from service members’ records was not 

caused by the preliminary injunction, either. The plaintiff argues that the removals were not 

required by the NDAA and were instead done to moot out this case. Dkt. No. 156 at 

15–16. However, the Court has previously concluded that most of the defendants’ 

“corrective action,” including the removal of adverse actions, was not voluntary but instead 

compelled by Congress and the NDAA. See Dkt. No. 139 at 23, 26. In short, Congress’s 

invalidation of the vaccine mandate also “invalidate[d] the procedures used to enforce it,” 

such as the issuance of GOMORs and the initiation of separation proceedings against nonvaccinated service members. See id. at 23–24; see also Dkt. Nos. 14 at 6, 13–14, 18; 39-1 at 

264, 274–76. The Court also concluded that the defendants’ resolution of some of the 

original plaintiffs’ injuries did not appear to be “a bad-faith attempt to moot this case,” but a 

response to “a legally binding congressional directive.” Dkt. No. 139 at 40. Accordingly, 

the Court finds that the removal of adverse actions was because of the NDAA, not because 

of the preliminary injunction in this case. 

The plaintiffs also have not shown a sufficient causal link between the injunction and 

the defendants’ decision to not punish service members who sought accommodations while 

potentially punishing those who did not. The military’s consideration of potential discipline 

only against service members who refused the vaccine without seeking an accommodation 

did contribute to the conclusion that the non-separated plaintiffs lacked an injury-in-fact. 

See Dkt. No. 139 at 58–59. However, the plaintiffs have failed to raise anything more than 

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mere argument that the decision was made because of this Court’s injunction. See Dkt. Nos. 

156 at 15–16; 166 at 7–8. The Court finds that this speculation does not support a finding 

that the defendants made their enforcement decisions “in direct response to” the injunction 

in this case. See Amawi, 48 F.4th at 418 (emphasis omitted). 

Nor is there “a compelling timeline” that points towards causation. See id. at 419. 

The plaintiffs stress that the removal of adverse actions and decision not to punish those 

who sought accommodations took place after the preliminary injunction was entered. See

Dkt. Nos. 156 at 12, 15–16; 166 at 7–8. But those actions also took place after the passage 

of the NDAA. As a result, the timing of these actions does not create a strong inference that 

they were caused by the injunction. The gaps in time between the injunction and the 

challenged decisions also undermine the plaintiffs’ argument. For example, in Dearmore, 

“[a]lmost immediately following the district court’s issuance of the preliminary injunction,” 

the defendant informed the plaintiff that it would amend the challenged ordinance. 519 

F.3d at 525–26. The defendant then amended the ordinance 12 days after the injunction. 

Id. at 526. However, that same kind of immediacy is not present here. Secretary Austin’s 

rescission of the mandate and instruction that service members who sought 

accommodations would not be separated occurred about three weeks after the injunction. 

See Dkt. Nos. 78; 108 at 46. And Secretary Wormuth’s policy memorandum was released 

about two months after the injunction. See Dkt. Nos. 78; 108 at 92. Because these actions 

also took place after the NDAA and were not particularly close in time to the injunction, the 

Court finds that the timing of these actions does not point towards causation. 

In sum, although the original plaintiffs won a preliminary injunction on the merits, 

they cannot show that the defendants mooted this case in response to that injunction. The 

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timing of the NDAA and the defendants’ other actions does not support such an inference. 

And the plaintiffs fail to provide any evidence beyond mere speculation that the defendants 

had this injunction in mind when making its decisions about adverse actions and potential 

punishment. Thus, the original plaintiffs are not prevailing parties for purposes of Section 

1988. 

ii. The agreed order makes Chrisman a prevailing party. 

In contrast, the Court concludes that the agreed order entered in this case makes 

Chrisman a prevailing party. The Supreme Court has held that a “settlement agreement[] 

enforced through a consent decree” can confer prevailing-party status. Buckhannon, 532 

U.S. at 604 (cleaned up). Accordingly, a plaintiff who obtains a settlement order signed by 

the district court that materially alters the legal relationship between the parties and 

modifies the defendant’s behavior in a way that directly benefits the plaintiff at the time is a 

prevailing party. See Romain, 856 F.3d at 406–07. However, if there is no significant change 

in the relationship between the parties or the defendant’s conduct or the benefit conferred is 

insignificant, the relief is “purely technical or de minimis,” and the plaintiff is not a 

prevailing party. Petteway, 738 F.3d at 137; Jenevein v. Willing, 605 F.3d 268, 271 (5th Cir. 

2010). 

Here, the Court signed an Agreed Order Resolving Claims requiring the defendants 

to make certain corrections to Chrisman’s military records within 30 days and retaining 

jurisdiction to enforce the terms of the Order. Dkt. No. 150. Thus, Chrisman obtained a 

settlement agreement enforced through a consent decree. And because the agreed order 

required the defendants to go above and beyond the relief given to other separated soldiers 

and provided a significant benefit to Chrisman, Chrisman is a prevailing party. 

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Court-ordered relief materially alters the legal relationship between parties if it makes 

the defendant do something it would not have done otherwise. For example, in Romain v. 

Walters, the plaintiffs sued a state agency after it failed to request a state-wide waiver of a 

certain requirement for federal food stamp benefits. 856 F.3d at 404. Although the 

plaintiffs moved for a temporary restraining order and a preliminary injunction, the case 

settled before those motions were decided. Id. at 404–05. The parties’ proposed settlement 

order noted that the governor-elect intended to extend the waiver. Id. at 405. But the 

settlement order also required the defendant to ensure that benefits were issued by a certain 

date, ensure that the plaintiffs and class members would not lose their benefits in the 

meantime, and issue notice to the plaintiffs and class members about the order and new 

waiver. Id. at 406. The district court denied the plaintiffs’ request for attorneys’ fees, 

reasoning that any relief to the plaintiffs was attributable to the voluntary action of the state 

agency in applying for the waiver, not the suit. Id. However, the Fifth Circuit held that the 

plaintiffs were prevailing parties. Id. The court concluded that the order “materially altered 

the legal relationship of the parties by making [the d]efendant subject to additional 

requirements not included under the [food stamp] program.” Id. Because the requirements 

“go above and beyond the requirements of simply applying for the waiver,” the order 

changed the legal relationship. Id. Further, the order modified the defendant’s behavior “by 

requiring [the d]efendant to both obtain the waiver and issue a new notice,” and “[the 

p]laintiffs benefitted from no longer having to determine other ways to meet the work 

requirement.” Id. at 406–07. 

Similarly here, the agreed order materially altered the relationship between the 

parties by requiring the defendants to do more than they otherwise would. The defendants 

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argue that there was no material alteration because Chrisman would have received the same 

correction of his records by petitioning the Army Discharge Review Board or the Army 

Board for the Correction of Military Records. Dkt. No. 162 at 16–18. However, this 

argument proves the point. Before the agreed order was entered, Chrisman was required to 

petition the review boards for his record corrections. Dkt. No. 108 at 95; see also Dkt. No. 

106 at 18 (defendants arguing that Chrisman had to administratively exhaust by petitioning 

the review boards before bringing suit for a correction of his records). Thus, the agreed 

order required the defendants to go above and beyond their normal commitments—they 

had to make the corrections without Chrisman submitting a petition or going through the 

administrative process. See Dkt. No. 150. This is a sufficient change in the legal 

relationship between the parties. 

Other requirements in the agreed order also changed the legal relationship between 

the parties. The defendants note that “‘there was no evidence that’ the Board of Corrections 

would have denied [Chrisman’s] records correction to begin with.” Dkt. No. 162 at 18 

(quoting Tex. State Tchrs. Ass’n, 489 U.S. at 791–92). But the relinquishment of that 

discretion is another material alteration in the relationship between the parties. Compare

Dkt. No. 163 at 3–4 (instructing that the review boards “generally” or “normally” should 

grant certain corrections), with Dkt. No. 150 at 1 (“Defendants shall make the following 

corrections to the military records of Plaintiff Chrisman . . . .” (emphasis added)). The 

agreed order also required the defendants to make the corrections within 30 days, Dkt. No. 

150 at 1, while a petition to the review boards could take a year or longer, see Contact 

Information, Army Rev. Bds. Agency, https://arba.army.pentagon.mil/contact.html 

[https://perma.cc/DY4V-B7HB]. And perhaps most significantly, the corrections required 

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by the agreed order are enforceable by this Court. Dkt. No. 150 at 2; cf. Farrar, 506 U.S. at 

113 (noting that a material alteration of the legal relationship occurs when “the plaintiff 

becomes entitled to enforce a judgment, consent decree, or settlement against the 

defendant”). Thus, the Court concludes that the agreed order constituted a material 

alteration in the legal relationship between Chrisman and the defendants. 

Further, the benefit to Chrisman is not de minimis. As the Court previously noted, 

Chrisman’s general discharge citing “Misconduct (Serious Offense)” was part of a “tangible 

injury . . . inextricably intertwined with the alleged violation of his constitutional rights,” 

and Chrisman “likely suffer[ed] irreparable harm every day that it remain[ed] unrectified.” 

Dkt. No. 139 at 71. Chrisman thus benefits by receiving the corrections in a timely fashion, 

without any additional effort on his part or uncertainty as to the outcome. The corrections 

themselves are also a significant benefit because they “afford[] Mr. Chrisman lifetime G.I. 

Bill benefits, a clearing of his military records, and the ability to re-enlist or re-join the 

service in the future.” Dkt. No. 166 at 9. With this relief, Chrisman has “‘achieved exactly 

the outcome [he] desired’ in the litigation,” making him a prevailing party. See Jenevein, 605 

F.3d at 272 (quoting Walker v. City of Mesquite, 313 F.3d 246, 250 (5th Cir. 2002)); Dkt. No. 

157 at 79 (“For Mr. Chrisman, he received all of the relief that he wanted, a clearing of his 

record and name and an upgrade of his discharge.”). 

In sum, Chrisman is a prevailing party and may be awarded attorneys’ fees under 

Section 1988. However, the ten original plaintiffs are not prevailing parties and may not 

receive fees, and the Court takes this into consideration when assessing the reasonableness 

of the fee request. 

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B. The Court multiplies the hours reasonably expended by Chrisman’s 

attorneys by the prevailing rates in the community to reach a lodestar of 

$921,106.25. 

Having determined that plaintiff Chrisman is a prevailing party, the Court must 

determine what constitutes a reasonable fee award. Hensley, 461 U.S. at 429. To do so, the 

Court must calculate the lodestar. Jimenez, 621 F.3d at 379. Upon multiplying “the number 

of hours reasonably expended” by “the prevailing hourly rate in the community for similar 

work,” the lodestar in this case equals $921,106.25. See id.

i. Hours Reasonably Expended 

First, the Court must determine the number of hours that Chrisman’s attorneys 

reasonably expended in pursuit of his claims. Id. Upon review of the time entries, the 

Court finds that Chrisman’s attorneys reasonably expended 1,097.96 hours on the litigation 

of his claims and the claims intertwined with his. 

a. Chrisman’s and the original plaintiffs’ claims share a 

common core of facts and related legal theories. 

The Court notes that the plaintiffs’ attorneys seek compensation for all time 

expended in this litigation—including time related to the original plaintiffs’ claims. The 

plaintiffs have produced time entries as early as August 29, 2022, and claim a total of 

1,871.3 hours expended. Dkt. Nos. 157 at 36; see Dkt. Nos. 156 at 27; 167 at 6–7, 25–26, 

33, 38; 169‐1 at 3; 173‐1 at 6; 173‐2 at 3. Although only Chrisman is a prevailing party for 

the purposes of Section 1988, because his claims and the original plaintiffs’ claims are 

interrelated, plaintiffs’ counsel may recover for hours expended in pursuit of the original 

plaintiffs’ claims that were reasonably necessary for Chrisman’s claims. 

A prevailing party cannot be awarded fees for “work on an unsuccessful claim” or 

for a non-prevailing plaintiff because that work “cannot be deemed to have been ‘expended 

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in pursuit of the ultimate result achieved.’” See Hensley, 461 U.S. at 435 (quotation omitted); 

Ramirez v. Lewis Energy Grp., 197 F. Supp. 3d 952, 958 (S.D. Tex. 2016). However, if the 

relevant “claims . . . share a ‘common core of facts’ or ‘related legal theories,’ a fee applicant 

may claim all hours reasonably necessary to litigate those issues.” Fessler v. Porcelana Corona 

De Mexico, S.A. DE C.V., 23 F.4th 408, 416 (5th Cir. 2022) (alteration in original) (quoting 

La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 327 (5th Cir. 1995)); see also Hensley, 461 U.S. 

at 435. Thus, a prevailing plaintiff may recover fees for time spent on a non-prevailing 

plaintiff’s factually or legally related claims because that time contributed to the prevailing 

plaintiff’s claim. See Norris v. Hartmarx Specialty Stores, 913 F.2d 253, 257 (5th Cir. 1990); 

Williams v. Kaufman County, No. 3:97-CV-0875-L, 2003 WL 21755913, at *7 (N.D. Tex. 

July 30, 2003); Garcia v. Las Brisas Quick Hand Car Wash, Corp., No. 1:09-CV-22599, 2011 

WL 13173814, at *5 (S.D. Fla. July 15, 2011), report and recommendation adopted by 2011 WL 

13174050 (S.D. Fla. Aug. 1, 2011). And “[w]here time spent on unsuccessful issues is 

difficult to segregate, no reduction of fees is required.” Abell v. Potomac Ins. Co. of Ill., 946 

F.2d 1160, 1169 (5th Cir. 1991). When faced with related successful and unsuccessful 

claims, the Court has discretion to either “attempt to identify specific hours that should be 

eliminated, or . . . simply reduce the award to account for the limited success.” Hensley, 461 

U.S. at 436–37. 

Since Chrisman is the only prevailing party, the defendants argue that he can only 

recover fees for the work related to the amended complaint and the motion to dismiss that 

complaint. Dkt. No. 162 at 33–34. They assert that he cannot recover fees for work on the 

original plaintiffs’ claims or the class claims because their claims and Chrisman’s claims 

were not based on the same facts or legal theories. Id. at 34–35. In response, the plaintiffs 

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argue that all of their claims were intertwined, because “the same misconduct by [the 

d]efendants, with the same claims for that misconduct, were at the heart of all claims of all 

[p]laintiffs.” Dkt. No. 166 at 17–18. 

The Court finds that Chrisman’s, the original plaintiffs’, and the putative class’s 

claims shared a common core of facts and related legal theories. All of the plaintiffs’ claims 

arose out of the same central facts: the Army’s COVID-19 vaccine mandate; the process 

required to apply for a religious exemption to the mandate; the denial of almost all requests 

for a religious exemption, including the plaintiffs’; and the use of adverse actions to enforce 

the mandate. See Dkt. Nos. 1 ¶¶ 1–3, 27–34, 38; 49 at 10, 12; 92 ¶¶ 1–3, 29–33, 35–37, 46; 

95 at 1. The core of this lawsuit was not the specific adverse actions taken against each 

plaintiff, as the defendants attempt to assert, see Dkt. No. 162 at 34, but the processes the 

Army used to enforce the vaccine mandate against those with sincere religious objections. 

Further, the claims for Chrisman, the original plaintiffs, and the putative class rely on the 

same legal theories—that the defendants’ enforcement of the vaccine mandate violated 

RFRA and the First Amendment. The plaintiffs all argued that the denial of their requests 

for a religious exemption created a substantial burden on their religious exercise; that the 

burden was not in furtherance of a compelling governmental interest, given the granting of 

secular exemptions; and that the vaccine mandate was not the least restrictive means or 

narrowly tailored. Dkt. Nos. 1 ¶¶ 54–59, 65–68; 49 at 12–14; 92 ¶¶ 69–74, 80–83. Thus, all 

of the plaintiffs’ claims share the same core facts and law. And because the claims are 

interrelated, Chrisman may recover for “all hours reasonably necessary to litigate those 

issues,” including time spent on the original plaintiffs’ claims. See Fessler, 23 F.4th at 416. 

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This case is somewhat unusual because it is easier to identify the hours expended on 

Chrisman’s successful claims. See, e.g., Dkt. No. 157 at 54–55 (documenting the beginning 

of Siri & Glimstad’s work to amend the complaint and the initial interview with Chrisman). 

Therefore, as a starting point for determining the reasonable number of hours expended, the 

Court considers the hours incurred in amending the complaint, the motion to dismiss the 

amended complaint, and the remainder of the litigation. 

After a careful review of the billing records, the Court determines that plaintiffs’ 

counsel spent 466.6 hours in those stages of the litigation. See Dkt. Nos. 157 at 54–69, 

88–92, 117–21, 136–38; 167 at 6. For much of that legal work, it is impossible to segregate 

the time spent on Chrisman’s claims from the time spent on the non-prevailing plaintiffs’ 

claims, so the Court will not reduce those hours. See Abell, 946 F.2d at 1169. However, to 

the extent that the billing records indicate that work was clearly done only on behalf of a 

non-prevailing plaintiff, such as communications with a plaintiff by name or work regarding 

harms unique to a non-prevailing plaintiff, the Court eliminates those hours. See id.; Norris, 

913 F.2d at 257 (noting that a prevailing party cannot recover fees “for any legal work 

undertaken solely to develop the discrete claims and issues of” non-prevailing plaintiffs). 

This results in the elimination of 75.6 hours. See generally Dkt. Nos. 157; 167. Thus, the 

Court finds that plaintiffs’ counsel billed 391.0 hours in litigating Chrisman’s successful 

claims from the amended complaint through the settlement: 

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Attorney Hours Billed Non-Prevailing 

Plaintiffs 

Total 

Aaron Siri 18.9 - 18.9 

Elizabeth Brehm 6.6 - 6.6 

Wendy Cox 187.3 59.3 128.0 

Dana Smith 46.6 12.5 34.1 

Gina Mannella 17.5 0.5 17.0 

Christopher Wiest 93.6 2.4 91.2 

Thomas Bruns 41.5 0.2 41.3 

John Sullivan 54.6 0.7 53.9 

Total 466.6 75.6 391.0 

See generally Dkt. Nos. 157; 167. 

Further, the Court also finds that much of the substantive legal work on the original 

plaintiffs’ claims was reasonably necessary for and contributed to the successful litigation of 

Chrisman’s claims. The time spent on the original complaint was necessary to establish the 

key facts and legal theories shared with Chrisman’s claims. Compare Dkt. No. 1, with Dkt. 

No. 92. The preliminary-injunction litigation further developed those facts, such as the 

different processes for medical versus religious exemptions, and greatly advanced the legal 

arguments that the defendants’ actions likely violated RFRA. See Dkt. Nos. 78 at 5–13, 

41–59; 92 ¶¶ 34, 46. And the work performed by plaintiffs’ counsel in litigating the 

mootness and standing issues in the first motion to dismiss was likely vital to the survival of 

Chrisman’s claim. See Dkt. No. 139 at 64, 71. In short, Chrisman’s success depended on 

his counsel’s prior work in developing the facts and legal arguments at the heart of all of the 

plaintiffs’ claims. Based on the billing records, the Court determines that plaintiffs’ counsel 

expended a total of 514.5 hours in substantive legal work—research, drafting, reviewing, 

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revisions, and preparation for and participation in the preliminary-injunction hearing—in 

those stages of the litigation. Those hours were allocated as follows: 

Attorney Complaint Preliminary 

Injunction 

First Motion to 

Dismiss 

Total 

Aaron Siri - 24.1 2.0 26.1 

Elizabeth 

Brehm 1.9 7.1 - 9.0 

Wendy Cox 31.4 119.1 20.8 171.3 

Dana Smith - 23.8 24.5 48.3 

Gina Mannella - 5.8 - 5.8 

Christopher 

Wiest 8.8 82.1 18.3 109.2 

Thomas Bruns 3.0 64.5 13.2 80.7 

John Sullivan 16.6 42.2 5.3 64.1 

Total 61.7 368.7 84.1 514.5 

See generally Dkt. No. 157. 

Finally, plaintiffs’ counsel is claiming an additional 326.1 hours spent litigating the 

attorneys’ fees motion. See Dkt. Nos. 167 at 6–7, 25–26, 33, 38; 169-1 at 3; 173-1 at 6; 173-2 

at 3; Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985). The total hours at issue are: 

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Attorney Chrisman’s 

Claims 

Original 

Plaintiffs’ 

Claims 

Fee Request Total 

Aaron Siri 18.9 26.1 10.7 55.7 

Elizabeth 

Brehm 6.6 9.0 41.4 57.0 

Wendy Cox 128.0 171.3 7.0 306.3 

Dana Smith 34.1 48.3 135.6 218.0 

Catherine Cline - - 20.1 20.1 

Gina Mannella 17.0 5.8 21.8 44.6 

Nicky Tenney - - 13.1 13.1 

Christopher 

Wiest 91.2 109.2 42.8 243.2 

Thomas Bruns 41.3 80.7 19.7 141.7 

John Sullivan 53.9 64.1 13.9 131.9 

Total 391.0 514.5 326.1 1,231.6 

b. Although most of the hours expended are reasonable, certain 

reductions are necessary. 

To determine the number of hours for the lodestar, the Court must determine 

“whether the total number of hours claimed were reasonable and whether specific hours 

claimed were reasonably expended.” LULAC, 119 F.3d at 1232. Courts must “exclude all 

time that is excessive, duplicative, or inadequately documented.” Jimenez, 621 F.3d at 

379–80. Accordingly, the fee applicant must demonstrate that they exercised billing 

judgment by recording both “the hours charged and . . . the hours written off as 

unproductive, excessive, and redundant.” Saizan, 448 F.3d at 799. Further, “when the 

supporting documentation is too vague to permit meaningful review,” the Court may 

“properly reduce or eliminate hours.” La. Power & Light Co., 50 F.3d at 326. “The proper 

remedy for omitting evidence of billing judgment . . . [is] a reduction of the award by a 

percentage intended to substitute for the exercise of billing judgment.” Saizan, 448 F.3d at 

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799; see also Aguayo v. Bassam Odeh, Inc., No. 3:13-CV-2951-B, 2016 WL 7178967, at *4 

(N.D. Tex. Dec. 8, 2016) (noting that a court may either make line-item cuts or make “a 

simple across-the-board reduction by a certain percentage . . . particularly when fee 

documentation is voluminous” (quotation omitted)). 

The defendants raise several challenges to the plaintiffs’ billing judgment, arguing 

that the hours claimed are vague, excessive, duplicative, and reflect non-compensable work. 

See Dkt. No. 162 at 36–42. The defendants urge that a reduction by at least 40% or 50% is 

necessary to account for these issues. Id. at 36, 42. Most importantly, the defendants argue 

that plaintiffs’ counsel generally “billed an excessive total amount of hours on discrete 

tasks,” such as the preparation of the complaint, the preliminary-injunction motion, and the 

amended complaint, and performed duplicative work on those tasks. Id. at 38–40. The 

Court generally disagrees. 

First, the Court rejects the defendants’ argument that the hours spent on the initial 

complaint and motion for preliminary injunction were excessive because those filings were 

identical or overly similar to counsel’s other challenges to the military vaccine mandate. See 

id. Although the general legal theories underlying those cases are the same, the complaint 

and preliminary-injunction motion in this case involved unique factual allegations about the 

Army’s particular policies and the plaintiffs, included documentation to support those 

allegations, and discussed different authorities. Compare Dkt. Nos. 1; 14; 30, with Pls.’ Mot. 

for an Emergency TRO & Prelim. Inj., Doster v. Austin, No. 1:22-cv-084 (S.D. Ohio Feb. 22, 

2022), ECF No. 13. Thus, the Court will not reduce plaintiffs’ counsel’s requested hours 

merely because they previously brought cases with similar legal theories that had similar 

pleadings or briefing. Further, the Court has already reduced the hours billed on the initial 

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complaint by limiting the compensable hours for the initial complaint to those spent on 

substantive research, drafting, and revisions and omitting several hours related to 

developing the relevant facts for each original plaintiff. See Dkt. No. 157 at 36–37. 

In addition, the Court disagrees that the hours spent litigating the preliminary 

injunction were excessive or duplicative. The preliminary injunction involved factual issues 

about the Army’s enforcement of its vaccine mandate and the resulting harms to the 

plaintiffs; multiple justiciability arguments, including the propriety of judicial abstention 

with regard to military affairs; and religious-liberty law. See Dkt. Nos. 30; 38; 46; 72. Given 

the importance of the relief sought, the complexity of the issues, and the defendants’ 

posture, see, e.g., Dkt. No. 61 at 1–2 (noting that the defendants had refused to stay 

disciplinary action against the plaintiffs while the NDAA was pending), the Court finds that 

the time briefing the motion and in preparation for the hearing was reasonably necessary. 

Nor was preparing additional plaintiffs as potential witnesses and having them present at the 

hearing if their testimony were necessary, see Dkt. No. 166 at 23, unreasonably excessive. 

Finally, having five attorneys at the hearing was not necessarily duplicative. For example, 

although Siri did not speak at the hearing, he was not a mere passive observer, as the 

defendants claim. See Dkt. No. 162 at 39–40. Rather, he participated in discussions with 

the clients before the hearing and outlined rebuttal points during the hearing. See Dkt. No. 

157 at 49; see also Veasey v. Abbott, No. 2:13-CV-193, 2020 WL 9888360, at *21 (S.D. Tex. 

May 27, 2020) (noting the value of second chairs and of teamwork between lawyers focused 

on different issues of the case), aff’d, 13 F.4th 362 (5th Cir. 2021). Further, Sullivan served 

as the plaintiffs’ in-district counsel in this case. See Dkt. No. 26. Thus, the Court declines to 

find that their presence at the hearing was unreasonable or duplicative. 

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Similarly, the Court determines that multiple attorneys contributing to the pleadings, 

motions, and briefing in this case was not improperly duplicative. Wiest and Bruns have 

testified that the plaintiffs’ attorneys each reviewed the pleadings “from the perspective of 

their experience, which . . . varied,” due to the different areas of law involved in this case. 

Dkt. No. 157 at 78, 100. In light of the intertwined, difficult issues in the case and the 

government’s aggressive litigation posture, it is eminently reasonable that the plaintiffs’ 

attorneys were continuously engaged in each stage of the litigation and brought their 

different perspectives and areas of expertise to bear. 

However, the Court finds that the hours billed for the fee litigation are excessive. 

The fee litigation was more substantive than in an average case, given that the plaintiffs’ 

status as a prevailing party was at issue, the discovery dispute, see Dkt. Nos. 158; 160; 161, 

and the defendants’ motion to strike and file surreply, see Dkt. Nos. 168; 169; 171. But each 

filing passed through each firm, with edits and substantive work often done at partner rates. 

See Dkt. Nos. 167 at 15–20, 25–26, 31–33, 38; 169-2 at 2–3; 173-1 at 5–6; 173-2 at 2–3. And 

unlike the merits litigation, there are likely diminishing returns from receiving several 

unique perspectives on a more common motion. The Court also notes that the hours 

expended on the fee litigation approach the hours expended on Chrisman’s claims. See 

supra Section 3.B.i.a. Given these factors, a 20% reduction in the hours billed for the 

attorneys’ fees litigation is appropriate. See Veasey, 2020 WL 9888360, at *20 (noting cases 

reducing charges on fee litigation to 80%); Kostic v. Tex. A&M Univ.-Com., No. 3:10-CV2265-M, 2015 WL 9997211, at *8 (N.D. Tex. Dec. 28, 2015) (noting that a 20% reduction 

would sufficiently account for “any time entries that are duplicative, excessive, or vaguely 

recorded”), report and recommendation adopted by 2016 WL 407357 (N.D. Tex. Feb. 3, 2016).

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The defendants also contend that plaintiffs’ counsel used vague time entries, billed 

unreasonable hours related to travel, and billed for non-compensable clerical time. Dkt. No. 

162 at 37–38, 40–42. Regarding the first point, hours may be reduced if the records are “too 

vague to permit meaningful review,” such as where the entries are “not illuminating as to 

the subject matter” or “vague as to precisely what was done.” La. Power & Light Co., 50 F.3d 

at 326 (quoting Leroy v. City of Houston, 906 F.2d 1068, 1080 (5th Cir. 1990)). However, 

courts may also look to “the number of hours spent on such tasks, the more detailed entries 

surrounding them, and their dates of entry, which indicates the point in the proceedings in 

which the particular services were rendered.” Olibas v. Native Oilfield Servs., LLC, 104 F. 

Supp. 3d 791, 811 (N.D. Tex. 2015). As to the second objection, courts in the Fifth Circuit 

often reduce fees for travel time by 50% unless there is some indication that the attorney was 

working while traveling. See Bowman v. Prida Constr., Inc., 568 F. Supp. 3d 779, 785–86 

(S.D. Tex. 2021) (collecting cases). Third, a plaintiff may recover fees for paralegal work 

only “if the work is legal rather than clerical.” Vela v. City of Houston, 276 F.3d 659, 681 (5th 

Cir. 2001). In other words, the paralegal’s work must be “similar to the work typically 

completed by attorneys.” Bowman, 568 F. Supp. 3d at 786 (quoting City of Dimmit v. 

Helmerich & Payne Int’l Drilling Co., No. SA-16-CV-01049-RCL, 2018 WL 1095585, at *3 

(W.D. Tex. Feb. 27, 2018)). “Purely clerical or secretarial tasks,” such as filing legal 

documents, calendaring events, communications regarding scheduling issues, and 

preparing, assembling, and redacting documents and exhibits, are not recoverable by either 

attorneys or paralegals. Id. at 786–87 (quoting Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 

n.10 (1989)). The Court addresses those objections as to the individual attorneys and 

paralegals in turn. 

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1. Aaron Siri 

Aaron Siri, the managing partner at Siri & Glimstad LLP, billed a total of 89 hours 

in this case, although the Court found that he is entitled to recover up to 55.7 hours. See 

supra Section 3.B.i.a; Dkt. Nos. 156 at 27; 167 at 6–7; 169-1 at 3. Much of his involvement 

in the case was through team calls, though he participated most substantively at the classcertification stage, at the preliminary-injunction hearing, and at mediation. See Dkt. Nos. 

157 at 44, 45–49; 167 at 13. The Court has reviewed the billing entries challenged as vague 

by the defendants and finds that such entries do not warrant a further decrease in Siri’s 

requested hours. The subjects of these entries are reasonably inferable from context. 

With regard to travel time, Siri’s billing records note that he was working while 

traveling to Lubbock for the preliminary-injunction hearing (4.6 hours), so no deduction is 

necessary there. Dkt. No. 157 at 49. However, the entries for his travel to and from 

Lubbock for the mediation do not indicate that he was working while traveling. Dkt. No. 

167 at 13. Thus, those entries for 5.1 and 5.6 hours are reduced by 50%. 

2. Elizabeth Brehm 

Elizabeth Brehm, a partner at Siri & Glimstad, billed 76.5 hours in this case, and the 

Court determined that she may recover up to 57 hours. Brehm participated in various calls 

and meetings throughout the litigation and reviewed most major filings, and she was heavily 

involved in the attorneys’ fees litigation. See Dkt. No. 167 at 15–20. Although the 

defendants challenge some of her billing entries as vague, the Court finds that Brehm’s 

entries are fairly detailed, and she has also exercised billing judgment by eliminating hours 

that may be duplicative or unnecessary. See, e.g., Dkt. No. 157 at 38, 44. No reduction is 

necessary on that count. However, Brehm’s records reflect some instances of billing for 

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purely clerical work, such as transmitting documents. See Dkt. No. 167 at 20. The Court 

finds that 0.7 hours of clerical work should be deducted from her hours on the fee motion. 

3. Wendy Cox 

An associate at Siri & Glimstad, Wendy Cox billed 523.5 hours in this litigation, and 

the Court found that she may recover up to 306.3 hours. Much of this deduction was due to 

her role as the point-of-contact for the plaintiffs, since her hours suffered the most from the 

removal of hours solely related to non-prevailing plaintiffs. Cox was heavily involved 

throughout the case in research, drafting, and corresponding with co-counsel and with the 

plaintiffs. See generally Dkt. No. 157. However, as the defendants note, many of Cox’s 

entries are vague. Dkt. No. 162 at 37. Most of her entries regarding correspondence with 

plaintiffs do not identify the subject matter of the correspondence, making it more difficult 

to discern whether that time was reasonably expended. See, e.g., Dkt. No. 157 at 61 (listing 

“read and respond to emails from B. Schelske,” “read and respond to emails from 

plaintiffs,” “read and respond to text messages and phone call from plaintiffs”). A 10% 

deduction in Cox’s hours, applied after all other deductions, is appropriate to account for 

the vagueness of her entries. 

Further, the defendants challenge several of Cox’s time entries as clerical work. 

Having reviewed the records, the Court concurs. See, e.g., Dkt. No. 167 at 12 (billing 

multiple 0.1-hour increments for correspondence about scheduling). Accordingly, 4.7 hours 

are deducted from her hours on Chrisman’s claims and 0.1 hour is deducted from her hours 

on the fee motion. 

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4. Dana Smith 

Dana Smith, an associate at Siri & Glimstad, billed 310.1 hours in the case, and the 

Court determined that she was entitled to up to 218 hours. Like Cox, Smith was involved 

in research, reviewing filings, and correspondence throughout much of the case, but the bulk 

of her hours was billed in the fee litigation. See Dkt. No. 167 at 15–20. Besides arguing that 

some of the hours Smith billed were excessive or duplicative, as addressed above, the 

defendants do not identify any particular challenges to Smith’s records in their brief. 

However, in its review of the billing records, the Court has identified 0.7 hours of clerical 

work that are thus deducted from Smith’s hours on the fee motion. See Dkt. No. 167 at 16 

(billing for organizing documents in Clio). 

5. Catherine Cline 

Another associate at Siri & Glimstad, Catherine Cline, only entered the litigation in 

the attorneys’ fees fight and billed 20.1 hours. Her work centered around research and 

drafting related to the defendants’ request for discovery and an extension. See Dkt. No. 167 

at 18–19. The Court did not identify any clerical work or other required deductions. 

6. Christopher Wiest 

Christopher Wiest is the sole member and owner of Chris Wiest, Attorney at Law, 

PLLC, and he billed 317.5 hours in this case. Dkt. Nos. 156 at 27; 167 at 25–26; 173-2 at 3. 

The Court then found that he could recover up to 243.2 hours. See supra Section 3.B.i.a. 

Wiest was involved in research, drafting, and editing almost all of the pleadings and 

briefings in this case, and he also participated in both the preliminary-injunction hearing and 

the mediation. See Dkt. No. 157 at 85, 87, 92. Although Wiest does bill in larger intervals 

than most of his counsel, such increments are reasonable given the nature of his tasks. See, 

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e.g., id. at 85 (billing 8.4 hours to “[d]raft, edit, and revise Preliminary Injunction Motion”). 

The defendants argue that several of Wiest’s billing records are vague, such as describing 

“[e]mails with DOJ” without any indication of subject matter. See Dkt. No. 157 at 87. 

However, the Court finds that in the context of the surrounding entries, such as the lead-up 

to the preliminary-injunction hearing, the entries are not so vague that they preclude review 

and do not require a reduction. 

However, the Court does find that 3.0 hours billed are non-compensable clerical 

work because they relate to preparing or assembling appendices. Dkt. No. 157 at 89–90; see 

Bowman, 568 F. Supp. 3d at 786. The Court deducts that time from Wiest’s claimed hours. 

Further, three of Wiest’s billings for travel time do not indicate that he was working during 

that time, so the Court reduces those hours by 50%. Dkt. No. 157 at 87, 92. 

7. Thomas Bruns 

Thomas Bruns is a named partner at Bruns, Connell, Vollmar & Armstrong, LLP. 

He billed 181.6 hours in this litigation, which the Court determined should be 141.7 hours. 

See supra Section 3.B.i.a; Dkt. Nos. 156 at 27; 167 at 33; 173-1 at 6. Bruns participated in 

review and revisions of multiple pleadings and motions and attended the preliminaryinjunction hearing. See Dkt. No. 157 at 108–10, 112–13. The Court has reviewed the 

entries that the defendants allege to be vague and find that they are generally surrounded by 

entries that offer more context, so the Court can reasonably review those hours. Further, 

the Court has not identified any clerical work billed as legal work. However, Bruns’ travel 

entries do not indicate that he worked while traveling, so a 50% reduction to those hours is 

appropriate. Id. at 113. 

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8. John Sullivan 

John Sullivan owns S|L Law PLLC and billed 173.1 hours in this case, and the 

Court found that 131.9 hours are compensable. See supra Section 3.B.i.a; Dkt. Nos. 156 at 

27; 167 at 38; 169-1 at 3. Most of his work involved reviewing and revising filings, and he 

attended both the preliminary-injunction hearing and the mediation. See Dkt. No. 157 at 

134, 136, 138. Once again, the defendants challenge several of his billing entries as overly 

vague, such as documenting correspondence without its subject matter. See, e.g., id. at 136. 

However, the Court finds that the timing of those entries, such as in the middle of 

correspondence with the defendants leading up to the preliminary-injunction hearing, 

permits the Court to find that they are not overly vague. 

The Court does note that several of Sullivan’s billing entries reflect two or more tasks 

without indicating how long each task took. See, e.g., id. at 134 (billing 2.7 hours for 

“[r]eview and evaluate Complaint; emails w/legal team re: case”). Such entries are 

generally for short enough periods of time that the Court can infer that the time was 

reasonable. As to his travel time, Sullivan billed 9.3 hours for “[a]ttend PI hearing; travel 

from hearing,” without any indication that he was working while traveling. Id. at 136. 

Based on the other billing entries in this case, the Court determines that the hearing lasted 6 

hours and concludes that the remaining 3.3 hours in that entry represent Sullivan’s travel 

time. See id. at 49, 136. Those 3.3 hours are reduced by 50%. Further, the Court found one 

0.1 entry of non-billable clerical work, correspondence about service, which it deducts from 

Sullivan’s hours. Id. at 137. 

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9. Gina Mannella 

Gina Mannella is a paralegal at Siri & Glimstad who provided almost all of the billed 

paralegal services throughout this litigation. The defendants argue that none of her hours 

are compensable because all of her work was clerical and non-legal. Dkt. No. 162 at 40–41. 

The Court disagrees. Some of Mannella’s tasks, such as redacting documents, assembling 

appendices, and filing documents, see Dkt. No. 157 at 57, 59, are indeed clerical and noncompensable. See Bowman, 568 F. Supp. 3d at 786–87. The Court has identified 7.3 hours 

related to clerical tasks that must be deducted from Mannella’s hours on Chrisman’s claims 

and 1.0 hour that must be deducted from her time on the fee motion. However, other tasks, 

such as reviewing and proofreading pleadings, see Dkt. No. 157 at 60, are similar to an 

attorney’s work and are properly billable. Bowman, 568 F. Supp. 3d at 786. 

10. Nicky Tenney 

Finally, Nicky Tenney is another paralegal at Siri & Glimstad who worked on the 

attorneys’ fees litigation. The Court’s review of the records revealed 0.4 hours of nonbillable clerical work, which it deducts from her hours. 

In sum, the Court has carefully reviewed the billing records and made hourly 

deductions of non-compensable clerical work and percentage deductions to account for 

excessive hours, vagueness, or travel time. The following hours were reasonably expended 

on the litigation: 

Case 6:22-cv-00049-H Document 177 Filed 08/16/24 Page 41 of 52 PageID 3721
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Attorney Chrisman’s 

Claims 

Original 

Plaintiffs’ 

Claims 

Fee Request Total 

Aaron Siri 13.55 26.1 8.56 48.21 

Elizabeth 

Brehm 6.6 9.0 32.56 48.16 

Wendy Cox 110.97 154.17 4.83 269.97 

Dana Smith 34.1 48.3 107.92 190.32 

Catherine Cline - - 16.08 16.08 

Gina Mannella 9.7 5.8 16.64 32.14 

Nicky Tenney - - 10.16 10.16 

Christopher 

Wiest 88.2 101.3 34.24 223.74 

Thomas Bruns 41.3 74.75 15.76 131.81 

John Sullivan 53.8 62.45 11.12 127.37 

Total 358.22 481.87 257.87 1,097.96 

ii. Reasonable Rates 

Next, the Court must determine the reasonable hourly rates for the attorneys and 

paralegals involved in this litigation. The plaintiffs request the following rates: $975 per 

hour for Siri, Brehm, and Sullivan; $875 per hour for Cox; $850 per hour for Bruns; $825 

per hour for Wiest; $775 per hour for Smith and Cline; and $240 per hour for the paralegals, 

Mannella and Tenney. Dkt. No. 166 at 26. The Court finds that each rate is reasonable for 

the relevant legal market in light of the attorneys’ skill and experience. 

The reasonable hourly rate is “calculated according to the prevailing market rates in 

the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984). The “relevant market 

. . . is the community in which the district court sits.” Tollett v. City of Kemah, 285 F.3d 357, 

368 (5th Cir. 2002) (quotation omitted). The plaintiff must “produce satisfactory 

evidence—in addition to the attorney’s own affidavits—that the requested rates are in line 

with those prevailing in the community for similar services by lawyers of reasonably 

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comparable skill, experience and reputation.” Blum, 486 U.S. at 895 n.11. Usually, this is 

done “through affidavits of other attorneys practicing there,” Tollett, 285 F.3d at 368, and 

courts may also consider “fee awards in the same district,” Casas, 2023 WL 2727550, at *8 

(quoting Jiwani v. United Cellular, Inc., No. 3:13-CV-4243-M-BK, 2014 WL 4805781, at *4 

(N.D. Tex. Sept. 29, 2014)). A court should consider “an attorney’s customary billing rate” 

if the rate “is within the range of prevailing market rates,” La. Power & Light Co., 50 F.3d at 

328 (quoting Islamic Ctr. of Miss., Inc. v. City of Starkville, 876 F.2d 465, 469 (5th Cir. 1989), 

abrogated on other grounds by City of Burlington v. Dague, 505 U.S. 557 (1992)). Finally, “trial 

courts are considered experts as to the reasonableness of attorney’s fees,” Primrose Op. Co. v. 

Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004), although “[t]he hourly fee awarded 

must be supported by the record” and cannot be based solely on the court’s “own experience 

in the relevant legal market,” LULAC, 119 F.3d at 1234. 

Here, the parties disagree as to what constitutes the relevant community. The 

defendants assert that the Court should consider the prevailing rates in Lubbock or San 

Angelo—the city in which the Court sits and the division in which this case was brought, 

respectively. Dkt. No. 162 at 20. The plaintiffs present evidence of rates in the Northern 

District of Texas, specifically the Dallas/Plano/Fort Worth market, in part through the 

declaration of Jonathan Mitchell. See Dkt. Nos. 156 at 25; 157 at 8–9. Further, the 

plaintiffs argue that they should receive the rates charged in their home districts because outof-district counsel was necessary. Dkt. No. 156 at 25. 

Although the Court agrees that Lubbock or San Angelo is often the appropriate 

community, due to the unique circumstances of this case, it finds that the Northern District 

of Texas is the relevant community. “Courts differ in defining the relevant community.” 

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Segovia v. Fuelco Energy LLC, No. SA-17-CV-1246-JKP, 2024 WL 1161730, at *3 (W.D. Tex. 

Mar. 18, 2024) (collecting cases); see, e.g., Ramirez, 197 F. Supp. 3d at 956 (considering the 

judicial district in which the court sits); Veasey, 2020 WL 9888360, at *8–9 (same); Schlieper 

v. City of Wichita Falls, No. 7:00-CV-045-R, 2003 WL 21355982, at *3 (N.D. Tex. June 6, 

2003) (same); Gill v. Bullzeye Oilfield Servs., LLC, No. 5:15-CV-1166-DAE, 2018 WL 

4770853, at *3 (W.D. Tex. Sept. 25, 2018) (considering the city in which the court sits). 

And “[i]n some circumstances, courts may agree that a local community rate is too 

restrictive and thus may exercise their discretion to expand the relevant community.” 

Segovia, 2024 WL 1161730, at *4. For example, in Bowman v. Prida Construction, Inc., the 

district court sitting in Galveston determined that out-of-district counsel was not necessary 

because the plaintiff had “overlook[ed] the rest of the Southern District.” 568 F. Supp. 3d at 

784. The court noted that many Houston lawyers handled the same kind of case at issue 

and that Houston lawyers also regularly practiced in the Galveston division. Id. 

Accordingly, it found that Houston was the relevant local market and adjusted the 

attorney’s hourly rate upwards to match those rates. Id. A similar view of the relevant 

community is appropriate here. 

The plaintiffs have presented evidence that there are no attorneys in Lubbock or San 

Angelo with the unique skillset, experience, or capacity to handle a matter of this size and 

scope. See Dkt. No. 157 at 7. Based on its experience in these legal communities, the Court 

concurs. The plaintiffs present the declaration of Jonathan Mitchell, who has practiced law 

in Texas for 13 years, previously served as the Solicitor General of Texas, regularly practices 

in this district, and is familiar with complex civil litigation in this district. Id. at 6. Mitchell 

testified that, based on his “knowledge of practitioners in those markets, and the complexity 

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of this litigation,” he does not know of any practitioners in Lubbock or San Angelo who 

would be able to handle and succeed in this litigation. Id. at 7. This is confirmed by the 

declarations of Sergeant Robert Schelske, who was stationed in San Angelo, see Dkt. No. 1 

¶ 20, and Chrisman. Dkt. No. 157 at 141, 144. Both Schelske and Chrisman were unable 

to locate an attorney in San Angelo or Lubbock who was willing to take their case. Dkt. 

No. 157 at 141, 144. And although the defendants argue generally that other attorneys in 

Texas have brought similar cases against the vaccine mandate, they do not point to one such 

attorney based in Lubbock or San Angelo. See Dkt. No. 162 at 26. 

However, there are lawyers in other divisions of the Northern District who have the 

skill and experience to litigate this matter. Mitchell also testified that “[t]here are firms in 

the Northern District of Texas who had the capacity to handle this matter,” specifically 

larger firms or organizations located in Dallas, Fort Worth, or Plano. Id. at 7. And, of 

course, Sullivan practices in the Northern District. See Dkt. No. 26. The Court therefore 

considers the Northern District of Texas as the relevant legal market when determining a 

reasonable hourly rate for this case. 

Next, the Court finds that the rates requested by the plaintiffs are in line with the 

prevailing Northern District rates for lawyers of similar skill, experience, and reputation. 

See Blum, 486 U.S. at 895 n.11. As an initial matter, the Court rejects out of hand the 

defendants’ assertion that this case did not “require[] any specialized knowledge or 

experience” and was not “particularly novel or complicated compared to other run-of-themill civil rights matters.” Dkt. No. 162 at 27. As discussed above, this case involved both 

complex facts and complex law—the details of the Army’s vaccine exemption process, 

standing and mootness, class-action motions, deference to military affairs, and RFRA and 

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First Amendment issues. This was not a run-of-the-mill civil rights case, and plaintiffs’ 

counsel’s rates should not be limited those of a run-of-the-mill case. 

Both Mitchell and Sullivan testify that the requested rates are reasonable for 

experienced litigators in the Dallas market. Dkt. No. 157 at 8, 129. For example, both 

declarations state that attorneys with less experience charge higher fees. Id. Further, 

Mitchell states that the vigorous litigation by the Department of Justice required 

“substantial experience, expertise, and sophistication, as well as a large team—resources 

that normally can be brought to bear only by a national firm.” Id. at 7. As a result, the 

Court concludes that hourly rates in line with large national firms in Dallas are reasonable. 

The cases discussed by the defendants are also distinguishable. See Dkt. No. 162 at 

21–22. Kostic v. Texas A&M University-Commerce involved a Title VII claim, First 

Amendment and Due Process claims, and a defamation claim against a university and 

officials. 2015 WL 9997211, at *5–6. Although that litigation undoubtedly involved many 

claims and constitutional issues, those claims are much more common than RFRA and Free 

Exercise Clause challenges to a military vaccine mandate. The discovery dispute in 

Architectural Granite & Marble, LLC v. Pental, even in a complex civil matter, is still quite 

different from the civil-rights litigation here—which also involved a fair share of discovery 

disputes. See No. 3:20-CV-295-L-BK, 2023 WL 2825699, at *1, *3 (N.D. Tex. Jan. 29, 

2023); Dkt. Nos. 66; 158. Wiest’s prior COVID-19 cases were brought in different legal 

markets and did not involve going head-to-head with the military and the DOJ. See, e.g., 

Roberts v. Beshear, No. 2:20-CV-054, 2022 WL 4592538, at *1 (E.D. Ky. Sept. 29, 2022). 

And with regard to the rates sought by counsel in Doster v. Kendall, rates in the Southern 

District of Ohio are standardized using a certain matrix. See Dkt. No. 176 at 4. 

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Finally, the Court concludes that each proposed billing rate is reasonable in light of 

the attorneys’ expertise and experience, much of which is practically tailored to this case. 

Siri, Brehm, and Sullivan seek a rate of $975. Dkt. No. 166 at 26. Siri was admitted to the 

bar in 2005 and has litigated multiple civil-rights matters and class actions, and his practice 

has been “heavily focused on vaccine policy work” for the past seven years or more. Dkt. 

No. 157 at 25. Similarly, Brehm was admitted to the bar in 2009 and has over 13 years of 

litigation experience, including work on class-action litigation, and she “has worked almost 

exclusively on vaccine-related policy and litigation work” for about four years. Id. at 28. 

Sullivan was admitted to the bar in 2012, clerked on the Fifth Circuit, served as an Assistant 

Solicitor General for Texas, regularly works on religious liberty cases, and has brought 

similar class-action cases related to COVID-19 vaccine exemptions. Id. at 127–28. In light 

of these attorneys’ skill and experience, the Court finds that their requested rate of $975 is 

reasonable for the Dallas legal market. 

Next, Cox, Bruns, and Wiest seek rates of $875, $850, and $825, respectively. Dkt. 

No. 166 at 26. Cox has over 16 years of experience as an attorney for the Army, including 

as Chief Attorney of Federal Litigation, and has worked on vaccine policy and exemption 

cases while with Siri & Glimstad. Dkt. No. 157 at 29. Bruns has practiced law for over 33 

years and has litigated multiple constitutional law cases in that time. See id. at 94, 104–05. 

Wiest was admitted to the bar in 2004, served as an Assistant Attorney General, practiced in 

a large international law firm, and has litigated in federal courts across the country. Id. at 

72–73. Bruns and Wiest were also counsel in Doster v. Kendall, a class-action suit 

challenging the COVID-19 vaccine mandate and religious exemption policies in the Air 

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Force. See id. at 81, 104. The Court determines that their requested rates are reasonable in 

the Dallas market for attorneys of their experience. 

Smith and Cline seek rates of $775. Dkt. No. 166 at 26. Smith has been practicing 

law since 2016, has a wide variety of experience in general litigation and the interactions 

between employment law and constitutional issues, and now exclusively works on 

vaccine-policy cases. Dkt. No. 157 at 30. Cline has also been practicing law since about 

2016, has served in three judicial clerkships, and has experience in constitutional, 

administrative, and employment law. Dkt. No. 167 at 7. Their requested rate is reasonable. 

Mannella and Tenney seek paralegal rates of $240. Dkt. No. 166 at 26. Mannella 

has over 29 years of experience as a paralegal and has assisted in class-action, religiousexemption, and employment law matters. Dkt. No. 157 at 30. Tenney has over 11 years of 

experience in a variety of legal fields. Dkt. No. 167 at 7–8. The Court finds that the 

requested rate is appropriate for comparable paralegals in the Dallas legal market. 

iii. Lodestar Calculation 

As shown below, multiplying the reasonable number of hours expended by each 

attorney by his or her reasonable hourly rate results in a lodestar of $921,106.25. 

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Attorney Reasonable Hours Reasonable Rate Total Fee 

Aaron Siri 48.21 $975 $47,004.75 

Elizabeth Brehm 48.16 $975 $46,956.00 

Wendy Cox 269.97 $875 $236,223.75 

Dana Smith 190.32 $775 $147,498.00 

Catherine Cline 16.08 $775 $12,462.00 

Gina Mannella 32.14 $240 $7,713.60 

Nicky Tenney 10.16 $240 $2,438.40 

Christopher Wiest 223.74 $825 $184,585.50 

Thomas Bruns 131.81 $850 $112,038.50 

John Sullivan 127.37 $975 $124,185.75 

Total 1,097.96 - $921,106.25 

C. Johnson Factors 

Although the lodestar amount is presumptively reasonable, the Court must consider 

the twelve Johnson factors and determine if an adjustment is necessary. Jimenez, 621 F.3d at 

380. Here, the Court finds that no adjustment is necessary. 

Many of the Johnson factors, including “the novelty and complexity of the issues, the 

special skill and experience of counsel, the quality of representation, and the results obtained 

from the litigation,” are generally “subsumed within the initial calculation of the lodestar” 

and accordingly “cannot serve as independent bases for increasing the fee award.” Del. 

Valley Citizens’ Council for Clean Air, 478 U.S. at 565 (cleaned up). It is possible to upwardly 

adjust the lodestar based on those factors, but “such modifications are proper only in certain 

rare and exceptional cases.” Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir. 1993). The 

time limitations imposed and the preclusion of other employment are also often subsumed 

within the lodestar. Id. at 321–22. Further, the time and labor required and the customary 

fee are expressly contemplated in the lodestar analysis. Jimenez, 621 F.3d at 379. And the 

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Supreme Court has barred consideration of whether the fee is fixed or contingent. Dague, 

505 U.S. at 565. After eliminating the superfluous Johnson factors, just three remain: the 

undesirability of the case, the nature and length of the professional relationship with the 

client, and awards in similar cases. “[T]he party seeking modification of the lodestar under 

the Johnson factors bears the burden” of showing that the adjustment is appropriate. Fessler, 

23 F.4th at 416. 

Here, the plaintiffs argue that the novelty and difficulty of the issues, the skill 

required to perform the legal services, the preclusion of other employment, the contingent 

fee, the limitations imposed by the circumstances, the amount involved and the results 

obtained, and the undesirability of the case warrant an upward adjustment. See Dkt. No. 

156 at 28–42. On the other hand, the defendants claim that none of the factors support an 

upward adjustment and that, instead, the plaintiffs’ limited success in this case may warrant 

an additional reduction to the lodestar. Dkt. No. 162 at 42–44. 

The Court finds that most of the factors cited by the plaintiffs are already accounted 

for by the lodestar. For example, the difficulty of the issues and the skill required were part 

of the Court’s considerations when determining a reasonable hourly rate. See supra Section 

3.B.ii. The limitations imposed by the circumstances and the preclusion of other 

employment were largely reflected in the hours billed. And the Court cannot consider the 

contingent nature of the fee. Dague, 505 U.S. at 565. 

As to the undesirability of the case, the plaintiffs note that the vaccine mandates were 

“a controversial, polarizing, and highly politicized issue,” the unpopularity of religious 

objections to vaccination, especially in the military, and the high-risk nature of the litigation. 

Dkt. No. 156 at 38–39. However, the defendants note that plaintiffs’ counsel have not 

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shown that they, for example, “have faced hardship in their community that has had an 

economic impact on their practice.” Dkt. No. 162 at 43 (cleaned up) (quoting Johnson, 488 

F.2d at 719). The Court concludes that the plaintiffs have not borne their burden to show 

that the unpopularity of their position warrants further adjustment to the lodestar. 

Both parties argue that the eighth factor, the results obtained, justify an adjustment. 

See id. at 44; Dkt. No. 156 at 32–33. The plaintiffs point out that the original plaintiffs won 

a preliminary injunction that protected service members from further adverse actions and 

that the agreed order resolved the case in their favor. Dkt. No. 156 at 32–33. In contrast, 

the defendants note that the plaintiffs’ success was limited when compared to the relief they 

sought, such as declaratory relief, policy-related relief, or class relief. Dkt. No. 162; cf. Dkt. 

No. 92 at 33–35. The Court finds that these considerations cancel each other out. While 

the preliminary injunctive relief was meaningful, the original plaintiffs were all dismissed, 

and while Chrisman did achieve relief, it was limited to him. Under these circumstances, 

the Court determines that an adjustment of the lodestar is unwarranted. In addition, the 

Court has already reduced the lodestar when it was calculated by effectively eliminating 

many hours claimed by the plaintiffs before Chrisman was added, to account for the fact 

that Chrisman was the only prevailing party. The Court declines to further reduce the 

award under the Johnson factors. 

D. Costs 

Finally, the Court considers the plaintiffs’ claims for expenses and costs. A 

prevailing party may recover his reasonable out-of-pocket expenses under Section 1988 

“because they are part of the costs normally charged to a fee-paying client.” Associated 

Builders & Contractors of La., Inc. v. Orleans Par. Sch. Bd., 919 F.2d 374, 380 (5th Cir. 1990). 

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The defendants object to compensation for travel costs for non-witness plaintiffs and to costs 

for tasks related to non-prevailing plaintiffs. Dkt. No. 162 at 42. However, the Court finds 

that all of the costs were reasonable and may be recovered. The Court grants the plaintiffs 

the requested costs of $21,240.94. See Dkt. Nos. 157 at 34, 79, 101, 138–39; 167 at 6–7. 

4. Conclusion 

For the foregoing reasons, the Court grants in part the plaintiffs’ motion for 

attorneys’ fees and costs (Dkt. No. 155). It is ordered that the defendants must pay 

Chrisman $921,106.25 in reasonable and necessary attorneys’ fees and $21,240.94 in costs, 

for a total of $942,347.19. The fees shall be disbursed as follows: 

Firm Attorneys’ Fees Costs Total 

Siri & Glimstad 

LLP 

$500,296.50 $13,079.04 $513,375.54 

Christopher Wiest $184,585.50 $5,947.39 $190,532.89 

Thomas Bruns $112,038.50 $854.76 $112,893.26 

John Sullivan $124,185.75 $1,359.75 $125,545.50 

Total $921,106.25 $21,240.94 $942,347.19 

 So ordered on August 16, 2024. 

 

JAMES WESLEY HENDRIX 

UNITED STATES DISTRICT JUDGE 

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