UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ERIC JACKSON, ALARIC STONE, and )

MICHAEL MARCENELLE, on behalf of )

themselves and all others similarly situated, )

) Case No. 4:22-cv-825-P

Plaintiffs, )

v. )

)

ALEJANDRO N. MAYORKAS, in his official )

capacity as Secretary of Homeland Security, )

LLOYD J. AUSTIN, III, in his )

official capacity as Secretary of Defense, )

LINDA L. FAGAN, in her official )

capacity as Commandant of the Coast Guard, and )

BRIAN K. PENOYER, in his official capacity )

as Assistant Commandant for Human )

Resources of the Coast Guard, )

)

Defendants. )

PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF 

MOTIONS FOR CLASS-WIDE RELIEF

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TABLE OF CONTENTS

I. INTRODUCTION. ............................................................................................................. 1

II. CLASS CERTIFICATION................................................................................................. 2

A. Plaintiffs and the Class satisfy the requirements of Rule 23(a). ..................................... 2

1. Plaintiffs have established commonality.................................................................. 2

2. Plaintiffs’ claims are typical..................................................................................... 7

III. CLASS-WIDE PRELIMINARY INJUNCTION ............................................................... 8

A. Plaintiffs’ claims are ripe and Plaintiffs did not fail to exhaust remedies. ..................... 8

1. Ripeness: .................................................................................................................. 8

2. Exhaustion:............................................................................................................. 10

B. Plaintiffs are likely to succeed on the merits of their RFRA and First Amendment 

claims: the Coast Guard lacks a compelling interest and fails narrow tailoring........... 13

1. Compelling Interest ................................................................................................ 13

2. Least Restrictive Means ......................................................................................... 16

3. Class-wide RFRA Claims ...................................................................................... 17

C. Irreparable injury will result absent injunctive relief.................................................... 18

D. The balance of hardships and public interest weigh in the Class’s favor. .................... 19

IV. CONCLUSION................................................................................................................. 20

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TABLE OF AUTHORITIES

Cases

Adair v. England, 

183 F. Supp. 3d 31 (D.D.C. 2002)............................................................................................ 12

Austin v. Navy SEALs 1-26, 

142 S. Ct. 1301 (2022).............................................................................................................. 10

Bear Creek Bible Church v. EEOC, 

571 F. Supp. 3d 571 (N.D. Tex. 2021) ..............................................................................6-7, 10

Brown v. Ent. Merchants Ass’n, 

564 U.S. 786 (2011).................................................................................................................. 14

Burwell v. Hobby Lobby Stores, Inc., 

573 U.S. 682 (2014).................................................................................................................. 16

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 

113 U.S. 520 (1993).................................................................................................................. 13

Col. Fin. Mgmt. Officer v. Austin, 

No. 8:22-CV-1275-SDM-TGW, 2022 WL 3643512 (M.D. Fla. Aug. 18, 2022)................. 1, 12

Davis v. Davis, 

826 F.3d 258 (5th Cir. 2016) ...................................................................................................... 6

Diraffael v. Cal. Mil. Dep’t, 

No. 10-cv-7240, 2011 WL 13274364 (C.D. Cal. Mar. 21, 2011)............................................... 9

Doe v. Rumsfeld, 

297 F. Supp.2d 119 (D.D.C. 2003)........................................................................................... 20

Doe v. Rumsfeld, 

341 F. Supp.2d 1 (D.D.C. 2004)............................................................................................... 20

Doster v. Kendall, 

No. 1:22-CV-00084-MWM, 2022 WL 2974733 (S.D. Ohio July 27, 2022) ....................... 1, 12

Case 4:22-cv-00825-P Document 38 Filed 10/14/22 Page 3 of 27 PageID 1074
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Doster v. Kendall, 

48 F.4th 608 (6th Cir. 2022) ............................................................................................... 14, 17

Dr. A v. Hochul, 

142 S. Ct. 552 (2021)................................................................................................................ 15

Dunn v. Austin, 

142 S. Ct. 1707 (2022).............................................................................................................. 10

Flecha v. Medicredit, Inc., 

946 F.3d 762 (5th Cir. 2020) ...................................................................................................4-5

Fraternal Ord. of Police Newark Lodge No. 12 v. City of Newark, 

170 F.3d 359 (3d Cir. 1999)...................................................................................................... 15

Fuller v. Rich, 

11 F.3d 61 (5th Cir. 1994) ........................................................................................................ 11

Fulton v. City of Philadelphia, 

141 S. Ct. 1868 (2021).............................................................................................................. 17

Gomillion v. Lightfoot,

364 U.S. 339 (1960).................................................................................................................... 3

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 

546 U.S. 418 (2006).................................................................................................................... 5

Holt v. Hobbs, 

574 U.S. 352 (2015).................................................................................................................... 9

In re Navy Chaplaincy, 

306 F.R.D. 33 (D.D.C. 2014)...................................................................................................... 3

Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 

140 S. Ct. 2367 (2020)................................................................................................................ 6

Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 

138 S. Ct. 1719 (2018).............................................................................................................. 18

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Mindes v. Seaman, 

453 F.2d 197 (5th Cir. 1971) .............................................................................................. 11, 12

Mullen v. Treasure Chest Casino, 

186 F.3d 620 (5th Cir. 1999) ...................................................................................................... 7

Navy SEALs 1-26 v. Austin, No. 4:21-cv-01236-O (N.D. Tex.)............................................ passim

Navy SEALs 1-26 v. Biden, 27 F.4th 336 (5th Cir. 2022)....................................................... 11, 13

Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 

876 F.3d 829 (9th Cir. 2012) .................................................................................................... 12

Opulent Life Church v. City of Holly Springs, Miss., 

697 F.3d 279 (5th Cir. 2012) ...................................................................................................... 9

Ramirez v. Collier, 

142 S. Ct. 1264 (2022).......................................................................................................... 6, 18

Ramos v. Louisiana, 

140 S. Ct. 1390 (2020).............................................................................................................. 10

Sherbert v.Verner, 

374 U.S. 398 (1963)........................................................................................................ 9, 18, 19

Singh v. Carter, 

168 F. Supp. 3d 216 (D.D.C. 2016).......................................................................................... 12

Singh v. McHugh, 

185 F. Supp.3d 201 (D.D.C. 2016)..................................................................................... 13, 20

Susan B. Anthony List v. Driehaus, 

573 U.S.149 (2014)............................................................................................................... 9, 10

Tagore v. United States, 

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

Tandon v. Newsom, 

141 S. Ct. 1294 (2021)........................................................................................................ 10, 15

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Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 

450 U.S. 707 (1981).................................................................................................................... 9

Tucker v. Collier, 

906 F.3d 295 (5th Cir. 2018) ...................................................................................................... 6

Vita Nuova, Inc. v. Azar, 

No. 4:19-CV-00532-O, 2020 WL 8271942 (N.D. Tex. Dec. 2, 2020)............................... 3, 4, 6

Wal-Mart Stores v. Dukes, 

564 U.S. 338 (2011)................................................................................................................ 2, 8

Yick Wo v. Hopkins,

118 U.S. 356 (1886).................................................................................................................... 4

Other Authorities

Kate Sullivan, et al., "Biden: 'The pandemic is over,'" CNN, Sept. 18, 2022, 

https://www.cnn.com/2022/09/18/politics/biden-pandemic-60-minutes.................................... 1

University of Nebraska Medicine, "What COVID-19 variants are going around in September 

2022?," Sept. 16, 2022, 

https://www.nebraskamed.com/COVID/what-covid-19-variants-are-going-around ............... 14

Carolyn Crist, "CDC: Most Americans Have COVID-19 Antibodies," WebMD, March 30, 2022, 

https://www.webmd.com/lung/news/20220330/cdc-most-americans-have-covidantibodies#:~:text=The%20seroprevalence%20%2D%2D%20or%20evidence,health%20offici

als%20have%20said%20BA..................................................................................................... 17

Charles Creitz, "Hurricane Ian Coast Guard hero about to be fired over vaccine refusal speaks 

out," Fox News, Oct. 5, 2022,

https://www.foxnews.com/media/hurricane-ian-coast-guard-hero-about-fired-vaccine-refusalspeaks-out ................................................................................................................................. 15

Bailee Hill, "Coast Guard rescuer faces termination over vaccine mandate after team was praised 

by Biden for hurricane aid," Fox News, October 4, 2022, 

https://www.foxnews.com/media/coast-guard-rescuer-faces-termination-vaccine-mandateteam-praised-biden-hurricane-aid............................................................................................. 15

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I. INTRODUCTION. 

“The pandemic is over,” the Commander in Chief recently admitted.1 But the purge of 

religious Coast Guard service members continues. This case is substantially identical to Navy 

SEALs 1-26 v. Austin, No. 4:21-cv-01236-O (N.D. Tex.), in which this Court issued a class-wide 

preliminary injunction against the Navy, and to Doster v. Kendall, No. 1:22-CV-00084-MWM, 

(S.D. Ohio) and Col. Fin. Mgmt. Officer v. Austin, No. 8:22-CV-1275-SDM-TGW (M.D. Fla.), 

in which courts issued class-wide preliminary injunctions against the Air Force and Marine 

Corps respectively. The Coast Guard makes no attempt to distinguish these cases and essentially 

concedes that if those cases are correctly decided then Plaintiffs and the Class prevail here too. 

The Coast Guard—together with the other service branches—has a policy of 

discriminating against religious accommodation requests. The Coast Guard’s discriminatory 

treatment of the Plaintiffs is typical of its treatment of the Class as a whole. The Coast Guard 

admits it has granted zero religious accommodation requests (other than those already slated for 

separation or retirement) and that it offers and has granted numerous secular accommodations 

(while failing now to say how many it has granted in all). Remarkably, the Coast Guard claims 

that any policy of religious discrimination is not “relevant.” Def. Opp. 16. The Coast Guard is 

mistaken—the policy of religious discrimination is critically relevant; it compels judgment in 

favor of Plaintiffs and the Class, just as it did in the Navy, Air Force, and Marine Corps cases.

In its 45-page brief, all the Coast Guard claims is that it views Class members’ 

unvaccinated status as generally threatening to military readiness, including to service members’ 

“worldwide deployability.” This type of generalized interest does not suffice under RFRA’s “to 

the person” requirement. In any event, the Coast Guard ignores its own selective insistence on 

purported “worldwide deployability” as a condition to service: it always insists on religious 

 

1

https://www.cnn.com/2022/09/18/politics/biden-pandemic-60-minutes.

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objectors, but not others, being “worldwide deployable.” Again, this Court in the Navy case and 

the other courts in the Air Force and Marine Corps cases found the military systemically violated 

service members’ religious liberty rights, as the Court should find here too.

Consistent with those cases, this Court in this case should certify the Class, appoint 

Plaintiffs’ counsel as Class counsel,2and issue a Class-wide preliminary injunction.

Local Rule 7.2.c permits 10-page reply briefs. Plaintiffs file this 20-page reply brief 

subject to their pending unopposed motion for leave to file excess pages filed on October 11 

(ECF No. 35).

II. CLASS CERTIFICATION3

A. Plaintiffs and the Class satisfy the requirements of Rule 23(a).

1. Plaintiffs have established commonality.

Commonality is established, as it was in the Navy, Air Force, and Marine Corps cases. 

As Plaintiffs have shown, they and the Class have suffered uniform harm as a result of a 

common nucleus of operative facts, including: the Coast Guard’s processes, policies, or practices 

of across-the-board denial of all religious accommodation requests; the Coast Guard’s failure to 

conduct individualized assessments of religious accommodation requests; and the lack of factual 

basis for the Coast Guard’s claim that the Mandates satisfy strict scrutiny. See Pl. Memo 9. 

Resolution of any one these common issues, and especially resolution of all of them, 

would resolve “in one stroke” a question that is “central to the validity of each class member’s 

claim.” Wal-Mart Stores v. Dukes, 564 U.S. 338, 350 (2011). Put another way, a “finding in 

favor of the Named Plaintiffs on their RFRA and First Amendment claims also resolves the 

RFRA and First Amendment claims of the class.” Navy SEALs 1-26, 2022 WL 1025144, at *5 

 

2

The Coast Guard does not oppose appointment of Class counsel. See, generally, Def. Opp.

3

The Coast Guard does not dispute ascertainability, numerosity, or adequacy. See, generally, 

Def. Opp. 

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(quoting Vita Nuova, Inc. v. Azar, 2020 WL 8271942, at *8 (N.D. Tex. Dec. 2, 2020)). 

The Coast Guard does not address whether each of these or other identified common 

issues would dispose of a centrally important question in the claim of every Class member. 

Instead, the Coast Guard argues generally that the Court cannot certify a class action in any

RFRA cases, because RFRA requires the Court to engage in an “individualized assessment of 

each service member’s religious beliefs, particular military duties, and other unique 

circumstances.” Def. Opp. 11. This argument fails as a matter of logic and of law. 

Fundamentally, it is a straw man argument because it attacks RFRA class actions by 

mischaracterizing them all as cases seeking review of denials of particular religious 

accommodation requests. RFRA requires that the Coast Guard engage in a “to the person” 

assessment of each religious accommodation request, but the Coast Guard can violate RFRA’s 

“to the person” requirement in (at least) two ways: it can misjudge the factors of one particular 

service member’s case, or it can categorically ignore all personalized inquiry and deny all or 

substantially all religious exemptions accordingly. This case involves the latter, systemic type of 

RFRA violation. Such a violation is both susceptible of class resolution and dispositive of a 

central issue in the RFRA claim of every Class member.

The Coast Guard claims that Plaintiffs do not show a systemic policy of discriminating 

against religious service members, but Plaintiffs have more than sufficiently shown this. The 

Coast Guard does not dispute, for example, that it has granted numerous secular exemptions 

while granting zero religious accommodations (other than for those already slated for separation 

or retirement) out of 1,200+ requests.4 On the basis of this evidence, the named Plaintiffs’ own 

 

4 Courts credit statistical evidence when it is so “stark” that it is suggestive of a “general policy 

of discrimination.” In re Navy Chaplaincy, 306 F.R.D. 33, 52 (D.D.C. 2014) (citing Gomillion v.

Lightfoot, 364 U.S. 339 (1960) (rejecting a redistricting proposal that excluded 396 out of 400 

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representative situations, and the conclusions of the Department of Defense Inspector General in 

examining the military’s policies and procedures,5Plaintiffs have shown that the Coast Guard’s 

undisputed, consistent practice of denying religious accommodations reflects an illegal policy of 

failing to conduct the “to the person” analysis required by RFRA. The Coast Guard’s insistence 

that it has conducted 1,200+ individualized reviews and properly identified zero service 

members entitled to a lawful religious accommodation (other than those already slated for 

separation or retirement) is not credible.

Courts, including this one, have indeed expressly held that plaintiffs can raise class action 

claims for systemic discrimination under RFRA. The Coast Guard admits that, in order to find in 

its favor on commonality, the Court would have to ignore this Court’s recent precedent in Navy 

SEALs 1-26 as well as the related Air Force and Marine Corps cases. The Coast Guard does not 

even attempt to distinguish these cases from the current one; instead, it argues they were wrongly 

decided on the basis of the same false premise it applies to oppose class certification here: that 

RFRA class actions are not possible. Def. Opp. 14-15. That premise is contradicted by other 

precedent certifying RFRA class actions as well. See, e.g., Vita Nuova, Inc., 2020 WL 8271942

(certifying RFRA class of health-care providers that oppose abortion). 

The Coast Guard’s own cases do not support its position. In Flecha v. Medicredit, Inc., 

 

black voters while excluding zero white voters) and Yick Wo v. Hopkins, 118 U.S. 356 (1886)

(rejecting selective enforcement of an ordinance against 200 Chinese business owners but zero 

non-Chinese business owners)). See also Navy, Air Force, and Marine Corps orders.

5

The Coast Guard does not deny the substance of the Inspector General’s condemnatory findings 

but attempts to distance itself from them, noting that the Coast Guard is technically not part of 

the Department of Defense. Def. Opp. 15, 39. But the Coast Guard admits it adopted its Mandate 

as a “consequen[ce]” of the DoD Mandate and of the Coast Guard’s “joint policy” with the Army 

regarding immunization. Coast Guard’s Ex. 1, ¶3, CG Appx 63. Further, the Coast Guard here 

relies heavily on regulations, studies, statistics, and other purported evidence from DoD 

witnesses, regarding DoD service members, for use by the DoD. See, e.g., Coast Guard’s Exs. 1-

2, CG Appx 1-60; Def. Opp. 4-5. The Coast Guard can’t have it both ways. 

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the Fifth Circuit held that class certification was inappropriate because the record showed no 

evidence of a “uniform intention” to engage in illegal debt collection practices against class 

members. 946 F.3d 762, 767 (5th Cir. 2020). This holding actually supports Plaintiffs in this 

case, because the Coast Guard’s perfect record of denying religious accommodations (except for 

those already slated for separation or retirement) while granting secular ones is precisely what 

was lacking in the Flecha case: powerful, direct evidence of a “uniform intention” on the part of 

the Coast Guard to discriminate against religious objectors. As this Court stated in the Navy 

case: “Exactly zero requests have been granted. . . . [I]t is hard to imagine a more consistent 

display of discrimination.” Navy SEALS 1-26, 2022 WL 1025144 at *5 (emphasis added). Like 

in Navy SEALS 1-26, there is no shortage of uniformity in the instant case: the Coast Guard is 

currently actively and unapologetically separating all service members who have been denied 

religious accommodations.6

The Coast Guard misquotes the Fifth Circuit in Tagore v. United States, 735 F.3d 324, 

330-31 (5th Cir. 2013), along with the Supreme Court in Gonzales v. O Centro Espirita 

Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006), to argue that only “in court” must it 

make a fact-intensive, “to the person” inquiry into each application for a religious 

accommodation. Def. Opp. 11. Those cases make clear that RFRA requires such a “to the 

person” inquiry by the government, including the Coast Guard, in all of its applications of 

RFRA, which is an essential element of the Plaintiffs’ claims. See O Centro, 546 U.S. at 430 

 

6

Through this action, Plaintiffs have secured the Coast Guard’s agreement to afford temporary

relief to certain service members facing imminent discharge dates and imminent dates of transfer 

to the Inactive Status List (ISL)—more than 125 service members in all—pending resolution of 

the present motions for class-wide relief or until December 1, 2022. See ECF No. 25. Plaintiffs 

understand that other service members whom Plaintiffs have not specifically brought to the 

Coast Guard’s attention (including service members whose identities are unknown to Plaintiffs) 

have been and are continuously being separated or transferred to the ISL. 

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(“RFRA requires the government to demonstrate that the compelling interest test is satisfied 

through application of the challenged law ‘to the person’”) (emphasis added); see also Tagore, 

735 F.3d at 330-31(“A ‘categorical approach’ is insufficient.”); Tucker v. Collier, 906 F.3d 295, 

301-02 (5th Cir. 2018); Davis v. Davis, 826 F.3d 258, 272 (5th Cir. 2016). Indeed, the Supreme 

Court has recognized that RFRA’s “to-the-person” analysis applies even outside of court. See 

Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2377, 

2384 (2020) (holding the federal government properly applied RFRA to create religious 

organization exemption from the HHS contraceptive mandate; “If the Departments did not look 

at RFRA’s requirements . . . when formulating their solution, they would certainly be susceptible 

to claims that the rules were arbitrary and capricious.”). Again, these cases each support 

Plaintiffs’ claim that it was illegal for the Coast Guard to uniformly deprive Class members of an 

individualized assessment of their religious accommodation requests. They in no way indicate 

RFRA class relief is inappropriate.7

The Coast Guard also mistakenly suggests that Plaintiffs must and cannot now establish 

the “sincerity” of all Class members’ beliefs, Def. Opp. 12. This is wrong for several reasons.

First, the Coast Guard admits that it “has not contested the sincerity of service members’ beliefs 

at this stage.” Id. In other words, the Coast Guard has conceded sincerity. Second, the Coast 

Guard ignores the fact that even if individualized Class membership assessments were necessary 

at a later time to determine who had sincerely held religious beliefs, the Class is properly 

defined. See, e.g., Vita Nuova, Inc., 2020 WL 8271942, at *4 (“defining the class based on the 

religious belief of the class members does not render the class unable to be ascertained”); Bear 

 

7

The Coast Guard misleadingly points to the Supreme Court’s decision in Ramirez v. Collier, 

142 S. Ct. 1264, 1275-76, 1278-81 (2022), for support. But it merely cites to that case’s analysis

of administrative exhaustion under the Prison Litigation Reform Act of 1995, which plainly has 

no application in this RFRA case.

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Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 601 (N.D. Tex. 2021) (“The Fifth Circuit 

upholds class certification even when a definition necessitates individualized membership 

assessments that might follow litigation, so long as the class definition is sufficiently clear.”) 

(citing Mullen v. Treasure Chest Casino, 186 F.3d 620, 624-25 (5th Cir. 1999)). See also Pl. 

Memo 7-8.

2. Plaintiffs’ claims are typical.

Plaintiffs’ claims satisfy typicality, as they satisfy commonality. See Section II.A.1 

above. The Coast Guard contends, mistakenly, that the claims are not typical because Plaintiffs 

failed to exhaust. As discussed in Section III.A, Plaintiffs did not fail to exhaust any remedies. 

The Coast Guard again points to RFRA’s “to the person” requirement, but again that 

requirement only supports Plaintiffs’ claim that the Coast Guard systemically failed Class 

members. See Section II.A.1. A very strong similarity of legal theories exists amongst Plaintiffs 

and Class members: they are all victims of the same discriminatory process by which the Coast 

Guard systemically fails to provide the requisite “to the person” assessment. Navy SEALs 1-26, 

2022 WL 1025144, at *6-7. Accordingly, Plaintiffs’ claims are typical. Id.

A. Plaintiffs and the Class satisfy the requirements of Rule 23(b)(2).

Judge O’Connor could not have been clearer: “By uniformly denying potential class 

members’ religious accommodation requests, the Navy has ‘acted . . . on grounds that apply 

generally to the class.’ And because potential class members may receive relief from a single 

injunction, the claim is appropriate for class-wide resolution under Rule 23(b)(2).” Navy SEALs 

1-26, 2022 WL 1025144, at *9. The Coast Guard wants this Court to hold that Judge O’Connor’s 

decision in the Navy case on essentially the same facts presented here was erroneous and lacked 

any “meaningful analysis” even though, in the words of the Coast Guard, Judge O’Connor 

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identified “a common failure by the defendant” and “the potential benefit to all class members” 

from an injunction. Def. Opp. 19. This argument is nonsensical.

As Judge O’Connor explained, a class satisfies Rule 23(b)(2) “when a single injunction 

or declaratory judgment would provide relief to each member of the class.” Navy SEALs 1-26, 

2022 WL 1025144, at *3 (quoting Dukes, 564 U.S. at 360). An injunction against the Coast 

Guard likewise would provide identical relief to everyone in the Class. The Coast Guard’s 

protests against this conclusion rely on its continued equivocation between the Court’s 

responsibilities in this RFRA case and RFRA’s requirement that the government conduct—in the 

first instance—individualized, fact-specific assessments of the facts and circumstances of each 

Class member’s request for religious accommodation. See Def. Opp. 17-18; see also supra

Section II.A.1 (commonality). To grant the Class relief in this case, the Court need not evaluate 

the circumstances of each religious accommodation request from 1,200+ Class members; it need 

only find that the Coast Guard failed to do so. By seeking an injunction that will provide 

identical relief to every Class member, Plaintiffs have satisfied Rule 23(b)(2). 

III. CLASS-WIDE PRELIMINARY INJUNCTION

A. Plaintiffs’ claims are ripe and Plaintiffs did not fail to exhaust 

remedies. 

1. Ripeness: The Coast Guard argues that Plaintiffs’ claims lack “constitutional” 

and “prudential” ripeness because their “injuries . . . are merely theoretical and based on nothing 

more than speculation.” Def. Opp. 20-23. This is incorrect. By denying Plaintiffs’ requests for 

religious accommodation, the Coast Guard is already putting them to the choice of violating 

their sincerely held religious beliefs by succumbing to COVID-19 vaccination, or else suffering 

permanent discharge, loss of pay, and loss of opportunity to serve their country, to name just 

some consequences. There is nothing abstract or unfit for review here.

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The Coast Guard’s “constitutional ripeness” argument depends on the Coast Guard’s 

assertion that Plaintiffs’ “purported injury” is ultimate discharge from the military. Def. Opp. 20. 

But the Supreme Court has held that a “policy” that “puts a [plaintiff] to th[e] choice” of 

“engag[ing] in conduct that seriously violates his religious beliefs” or otherwise “fac[ing] serious 

disciplinary action” “easily satisfies” a plaintiff’s obligation to show a “substantial burden” on 

religious exercise. Holt v. Hobbs, 574 U.S. 352, 361 (2015) (interpreting RLUIPA, the sister 

statute to RFRA). That’s because such a burden exists the moment government imposes 

“substantial pressure” on one “to modify [her] behavior and to violate [her] religious beliefs.” 

Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 718 (1981). 

The Coast Guard argues that even the “commencement of discharge proceedings” “is not 

sufficient injury” to make Plaintiffs’ claims ripe, but they rely on a case unrelated to religious 

exercise. Def. Opp. 21 (quoting Diraffael v. Cal. Mil. Dep’t, No. 10-cv-7240, 2011 WL 

13274364, at *3 (C.D. Cal. Mar. 21, 2011)). Such a holding here would do violence to Article 

III’s case-or-controversy requirement, in which “an actual . . . enforcement action is not a 

prerequisite to challenging the law,” so long as there is even a credible “threat” of “an Article III 

injury.” Susan B. Anthony List v. Driehaus, 573 U.S.149, 158 (2014) (emphasis added). 

The Coast Guard’s “prudential ripeness” arguments fare no better for similar reasons. 

Prudential ripeness turns on the “fitness” of the case for judicial review and the “hardship to the 

parties of withholding consideration.” Opulent Life Church v. City of Holly Springs, Miss., 697 

F.3d 279, 286 (5th Cir. 2012). The Coast Guard here re-insists that Plaintiffs’ harms simply 

“may” occur “at some point in the future,” Def. Br. at 23 (emphasis in original), utterly ignoring 

the ongoing “pressure” that the Coast Guard is already imposing “upon [Plaintiffs] to forego 

[their religious] practice.” Sherbert v.Verner, 374 U.S. 398, 404 (1963).

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Accordingly, this controversy presents issues that are “purely legal” and “will not be 

clarified by further factual development.” See Bear Creek Bible Church, 571 F. Supp. 3d at 598. 

As the Coast Guard admits, Plaintiffs’ requests for religious accommodation have already been 

denied by “the final decision authority.” Def. Opp. 36. The Coast Guard also admits it has 

already concluded that Plaintiffs allegedly present an “unavoidable risk” to “health and 

readiness” that the military “cannot accept.” Id. at 44. Indeed, Plaintiff Marcenelle has already 

received a notice of intent to discharge. Marcenelle 2nd Suppl. Decl., Suppl. Appx 306; ECF No. 

25. And “[l]itigants are entitled to relief where they ‘remain under a constant threat that 

government officials will use their power’ to enforce the law against them.” Bear Creek Bible 

Church, 571 F. Supp. 3d at 598 (quoting Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021)); see 

also ALCOAST 270/22(2)(a) (noting that “all non-compliant service members will be processed 

for separation”) (emphasis added). Appx 131.

Moreover, “denying prompt judicial review would impose a substantial hardship on 

Plaintiffs, forcing them to choose between violating [Defendants’ mandate] on the one hand, and 

violating their religious convictions on the other.” Bear Creek Bible Church, 571 F. Supp. 3d at 

598 (citing Susan B. Anthony List, 573 U.S. at 167-68). Thus, Plaintiffs’ claims are ripe.8

2. Exhaustion: The Coast Guard’s exhaustion arguments likewise fail, because 

exhaustion would be futile; it is not required by RFRA and the First Amendment anyway; and, as 

 

8

The Coast Guard also wrongly argues that Plaintiffs seek an injunction from any adverse 

actions in alleged conflict with the Supreme Court’s grant of a partial stay in Austin v. Navy 

SEALs 1-26, 142 S. Ct. 1301 (2022). Defs.’ Br. 23. To the contrary, Plaintiffs expressly “consent 

to a partial stay” of any injunction in accordance with the Supreme Court’s order in Navy SEALs 

1-26. ECF Nos. 4 at 3; ECF No. 4-1 at ¶5. And the Supreme Court’s denial without comment of 

a request for emergency relief in Dunn v. Austin, 142 S. Ct. 1707 (2022) has no legal 

significance, despite the Coast Guard’s reliance on it. Cf. Ramos v. Louisiana, 140 S. Ct. 1390, 

1404 n.56 (2020) (denial of certiorari has no legal significance bearing on the merits of a claim).

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11

Plaintiffs have already explained, the factors under Mindes v. Seaman, 453 F.2d 197 (5th Cir. 

1971) are easily satisfied here.

“[E]xhaustion is unnecessary if, inter alia, the administrative remedy is futile and 

plaintiffs raise substantial constitutional claims.” Navy SEALs 1-26 v. Biden, 27 F.4th 336, 347 

(5th Cir. 2022); see also Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). The Coast Guard asserts 

that Plaintiffs have not pursued “all available administrative procedures,” including review by 

“the Board for Correction of Military Records” (“BCMR”), but the facts show otherwise. Def. 

Opp. 6, 25. Plaintiff Stone did pursue review by the BCMR, but was specifically informed by his 

Captain via email that it would be futile: “I don’t foresee your BCMR being successful . . . . 

Because your potential separation will be based on you not being worldwide deployable, a 

BCMR will not address that issue.” Appx 129; see also Stone Decl. at ¶27, Appx 25, and Ex. 14, 

Appx 128 (Stone informed that “there is no further mechanism for administrative appeal”). 

Indeed, the Coast Guard does not dispute that it has denied virtually all requests for 

religious accommodations, and that only several have been “granted” for those already slated for 

separation. See, e.g., Requena Decl. and Exhibits, Appx 285-289. This “suggests that the [Coast 

Guard] has effectively stacked the deck against even those exemptions supported by Plaintiffs’ 

immediate commanding officers and military chaplains,” which “is sufficiently probative of 

futility.” Navy SEALs 1-26, 27 F.4th at 347; see also Stone Decl. at ¶15, Appx 18, Ex. 4 at Appx 

40 (noting Stone’s July 2022 evaluation recommending him for promotion); see also Jackson 

Decl. at ¶28, Appx 167, Ex. 2 at Appx 174; Marcenelle Decl. at ¶34, Appx at 239, Ex. 11 at 

Appx 283. “These class members need not wait for the [Coast Guard] to engage in even more 

empty formalities.” Navy SEALs 1-26, 2022 WL 1025144, at *9.

Moreover, RFRA and the First Amendment do not require administrative exhaustion in 

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12

the first place. Courts have “decline[d] . . . to read an exhaustion requirement into RFRA . . . .” 

Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 876 F.3d 829, 838 (9th Cir. 2012)

(internal citations omitted); see also Singh v. Carter, 168 F. Supp. 3d 216, 225-226 (D.D.C. 

2016) (same in the case of a service member’s RFRA and Free Exercise challenges to a military 

order); Adair v. England, 183 F. Supp. 3d 31, 55 (D.D.C. 2002) (same; Free Exercise).

As to the Mindes factors, the Fifth Circuit has held that “it is likely that” the Mindes test 

does not apply in a RFRA case, and Plaintiffs have explained that the Mindes factors cut in their 

favor anyway. Pl. Memo 17, n.11. The Coast Guard says “the Supreme Court necessarily 

rejected the Fifth Circuit’s reasoning” by issuing a partial stay of that ruling, but this Court has 

already correctly rejected that argument. See Navy SEALs 1-26, 2022 WL 1025144, at *10-11 

(finding justiciability under Mindes even after Supreme Court’s partial stay); accord Doster, 

2022 WL 2974733; Col. Fin. Mgmt. Officer, 2022 WL 3643512, at *8 n.7. 

The Coast Guard further argues that “[f]orcing [it] to adjust to the risks of including 

unvaccinated [service members] in its ranks is a substantial interference,” Def. Opp. 26 

(emphasis added), but all three Plaintiffs and many Class members are currently still serving 

under “needs of the service” waivers, more than a year after the Mandates were issued. The 

Coast Guard also argues that forcing it to “deploy” or “assign” service members without regard 

to their vaccination status would improperly interfere with a “Plaintiff’s chain of command.” 

Def. Opp. 27. But this argument again overlooks that Plaintiffs “consent to a partial stay” 

consistent with the Supreme Court’s order in Austin. ECF No. 4 at 3. Thus, Plaintiffs’ claims 

satisfy the Mindes factors, and this case is justiciable.

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13

B. Plaintiffs are likely to succeed on the merits of their RFRA and First 

Amendment claims: the Coast Guard lacks a compelling interest and 

fails narrow tailoring.

1. Compelling Interest: The Coast Guard asserts that “‘logic alone’ dictates” that 

its alleged generalized compelling interest “distill[s]” to an application of the Mandates to each 

individual. Def. Opp. 29. But that is just another way of relying on the kind of “general interest” 

that is “insufficient under RFRA.” Navy SEALs 1-26, 27 F.4th at 351. 

A government “restriction is not compelling . . . when it leaves appreciable damage to 

[its] supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of 

Hialeah, 113 U.S. 520, 547 (1993) (internal quotations omitted). The Coast Guard’s compelling 

interest narrative ignores the exceptions it has actually granted for secular reasons, including 

(temporarily) to these Plaintiffs themselves for the “needs of the service,” which undermine its 

claims that it must prevent anyone from “serving without being vaccinated against COVID-19.” 

Def. Opp. 44. “Underinclusiveness ... is often regarded as a telltale sign that the government’s 

interest . . . is not in fact ‘compelling.’” Navy SEALs 1-26, 27 F.4th at 351-52 (cleaned up). 

The Coast Guard says this Court must defer to the military’s scientific judgment, Def. 

Opp. 29, but “RFRA ‘demands much more’ than deferring to ‘officials’ mere say-so that they 

could not accommodate a plaintiff’s religious accommodation request.’” Navy SEALs 1-26, 27 

F.4th at 351 (quoting Holt, 574 U.S. at 369). It also claims Congress intended military deference 

would still apply under RFRA, Def. Opp. 28, but Congress made clear that military policies 

would still be subject to full-fledged strict scrutiny under RFRA. See Singh v. McHugh, 185 F. 

Supp.3d 201, 218-19 (D.D.C. 2016).

The Coast Guard also insists that it did conduct individualized RFRA analyses of 

Plaintiffs’ requests, Def. Opp. 29, even though it earlier said it was not “relevant” if “class 

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14

members were all treated similarly in the Coast Guard’s internal administrative process,” so long 

as it can post hoc justify these denials “in court.” Def. Opp. 11, 12 (emphasis in original). But 

the Coast Guard’s post hoc justifications simply describe Plaintiffs’ former job duties and then 

asserts that their accommodation denials further “military readiness,” Def. Opp. 30 (emphasis 

added)—exactly the kind of general interest that fails strict scrutiny. See supra.

The Coast Guard further cites to alleged vaccine effectiveness “between July and 

November 2021,” and “December 2021,” Def. 31, but it does not rebut Plaintiffs’ evidence 

showing the vaccine’s documented reduced effectiveness against the more recently dominant 

Omicron variant. Pl. Memo 22, n.17.9 And the Coast Guard never grapples with the fact that the 

CDC’s most recent guidance states that the primary series of COVID-19 vaccination alone, 

which is all the Mandates require, “provides minimal protection against infection and 

transmission.” Pl. Memo 18, n.12 (emphasis added). 

Moreover, the government “does not have a compelling interest in each marginal 

percentage point by which its goals are advanced.” Brown v. Ent. Merchants Ass’n, 564 U.S. 

786, 803 n.9 (2011). Instead, “the curtailment of free [exercise] must be actually necessary to the 

solution.” Id. at 799. Here the Coast Guard has not come close to making that showing, Pl. 

Memo 18, 22, especially given that Plaintiffs have been allowed to continue their critical service 

temporarily for more than a year. See Doster v. Kendall, 48 F.4th 608, 616 (6th Cir. 2022)

(temporary exemptions for class members “suggests that [Defendants’] concerns about these 

harms are not as urgent as [their] briefing now says”); see also CG Appx at 101 (noting Plaintiff 

Jackson’s “current command has requested a delay in any discharge proceedings of twenty-four 

months for operational reasons”).

 

9

“[S]ubvariants of omicron” remain the “dominant variant[s] nationwide.” 

https://www.nebraskamed.com/COVID/what-covid-19-variants-are-going-around. 

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15

The Coast Guard also misleads in saying that vaccination ensures service members can 

“respond to domestic emergencies.” Def. Opp. 32. It is a matter of public record that putative 

Class members have been hailed as heroes for their saving work in the aftermath of Hurricane 

Ian, despite being unvaccinated.10 And earlier this month, Plaintiff Stone was notified by his 

command that he has been put on a list of personnel who will likely deploy this December to 

Miami, Florida, to support an ongoing surge in support of Alien Migrant Interdiction 

Operations—notwithstanding his vaccination status. Stone 2nd Suppl. Decl., Suppl. Appx 301. 

Additionally, the Coast Guard insists that medical, clinical-trial, and administrative 

exemptions are not comparable to religious exemptions, because they serve generalized interests 

in “ensuring readiness” and “health.” Def. Opp. 33. But the Coast Guard has been clear that the 

“asserted government interest that justifies the [Mandates],” Tandon, 141 S. Ct. at 1296, is 

preventing the effects of COVID-19, Def. Opp. 31. Hence its bar on service members “serving 

without being vaccinated against COVID-19.” Id. at 44. But “allowing a [service member] to 

remain unvaccinated undermines” those goals “equally whether that [service member] happens 

to remain unvaccinated for religious reasons or medical ones.”11 Dr. A v. Hochul, 142 S. Ct. 552, 

556 (2021) (Gorsuch, J., dissenting from denial of emergency injunction pending appeal); see 

also Fraternal Ord. of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d 

Cir. 1999) (Alito, J.) (“medical exception” to no-beard requirement “raises concern because it 

indicates . . . a value judgment that secular (i.e., medical) motivations for wearing a beard are 

important enough to overcome its general interest in uniformity but that religious motivations are 

 

10 https://tinyurl.com/y9nrwpc9; https://tinyurl.com/yc5sxf7p.

11 The same is true for clinical-trial exemptions. The Coast Guard claims, without any 

evidentiary support, they “further the efficacy of the vaccine and vaccine development,” Def. 

Opp. 33, even though the policy itself includes trial for non-vaccine COVID-19 drugs, Pl. Memo 

4. Regardless, these exemptions further show the Coast Guard’s prioritization of a secular goal 

(researching COVID-19) over the right to free exercise of religion.

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not”). See also Navy, Air Force, and Marine Corps orders.

The Coast Guard says medical exemptions render a service member non-worldwide 

deployable yet admits to granting such exemptions anyway, while at the same time it dismisses 

Plaintiffs and Class members for allegedly not being “worldwide deployable.” See, e.g., Stone 

Decl. at ¶27, Appx 24. All told, the Coast Guard has not shown a compelling interest in 

categorically denying religious accommodations to Plaintiffs and the Class.12

2. Least Restrictive Means: While the Coast Guard is not required to adopt lessthan-“equally”-effective means, Def. Opp. 36, there is still no cognizable compelling interest in 

achieving marginal gains at the expense of free religious exercise (see supra), which is all it

seeks here (at most). Moreover, the Coast Guard “itself has demonstrated that it has at its 

disposal an approach that is less restrictive,” since it “has already established an accommodation 

for” medical needs, clinical trials, administrative needs—and for these Plaintiffs themselves for 

operational needs. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 730-31 (2014). 

The Coast Guard further asserts that Plaintiff Stone cannot conduct remote work in his 

intelligence position because he “work[s] with classified systems.” CG Appx at 98. But the 

majority of Stone’s work is with unclassified information, and thus members of his unit 

regularly telework via a specially equipped Virtual Desktop Infrastructure—including both his 

direct supervisor and branch chief just this month. Stone 2nd Suppl. Decl., Suppl. Appx 301. See 

also Jackson and Marcenelle 2nd Suppl. Decl., Suppl. Appx 303-306 (further demonstrating their 

unvaccinated status is and has been easily accommodated).

 

12 The Coast Guard notes that Novavax claims the Novavax vaccine was not developed or 

produced using aborted fetal cells. Def. Opp. 28, n.10. But based on the evidence, Plaintiffs 

reasonably believe that Novavax was indeed tested on aborted fetal cell lines as part of its 

development. See, e.g., Stone Decl. at ¶21, Appx at 20. It is the Plaintiffs and Class members, 

not the Coast Guard or the courts reviewing a RFRA claim, who determine the basis of their own 

religious objections. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 724 (2014).

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As to the Coast Guard’s assertion that Plaintiffs’ natural immunity is “unverified,” it 

ignores each Plaintiff’s undisputed evidence of his own natural immunity, as attested to in 

Plaintiffs’ declarations and exhibits thereto.13 And the Coast Guard completely overlooks 

Plaintiffs’ evidence from The New England Journal of Medicine finding that natural immunity is 

stronger than vaccine immunity. Pl. Memo 19, n.13. Regardless, the Coast Guard’s admission 

that natural immunity may be “more effective or as effective as the vaccine” entitles these 

claimants to relief. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882 (2021)

(“speculation” about possible harms “is insufficient to satisfy strict scrutiny”).14 In short, the 

Coast Guard cannot satisfy the least restrictive means test, either.

3. Class-wide RFRA Claims: The Coast Guard also wrongly invokes the 

presumption of public officers’ good faith in arguing there is no evidence of “a clear intent to 

unlawfully discriminate against religious service members.” Def. Opp. 38. The Coast Guard’s 

refusal to grant any religious exemptions except for those already slated for separation or 

retirement “is itself at this stage significant proof of discrimination.” Doster, 48 F.4th at 614; see 

also Requena Decl. Ex. 3, Appx 299 (memo purporting to grant Ms. Requena a religious 

exemption “because [she] separated from activity duty” (emphasis added)).

The Coast Guard also asserts that Plaintiff Stone “misinterpret[ed]” a statement from his 

commanding officer on the USCGC JAMES, based on the declaration of Commander Thomas 

who wasn’t the one who made the statement. Def. Opp. 39; CG Appx at 97. But it does not and 

 

13 See, e.g., Stone Decl., Appx 19, Ex. 5 at Appx 41; Jackson Decl., Appx 165-66; Marcenelle 

Decl., Appx 234-35, 240. Almost all of the Coast Guard’s own evidence is in the form of 

declarations. All of the Coast Guard’s exhibits are at least in part not based on personal 

knowledge according to its declarants’ own attestations. See, e.g., Def. Exhibits 1-8 and 10. 

14 The CDC acknowledges that “[a]bout 95% of Americans ages 16 and older have coronavirus 

antibodies.” https://www.webmd.com/lung/news/20220330/cdc-most-americans-have-covidantibodies#:~:text=The%20seroprevalence%20%2D%2D%20or%20evidence,health%20officials

%20have%20said%20BA.

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cannot dispute what Stone’s commander said: “I don’t want to discuss your religious beliefs 

because frankly, they don’t matter to me.” Stone Decl. ¶23, Appx 21.15 In today’s world, to say 

one’s “religious beliefs . . . don’t matter” is plainly to “disparage [] religion” and “cast doubt on 

the fairness and impartiality of” the Coast Guard’s process—as only further confirmed by “the 

difference in treatment between [Stone’s] case and the cases of other [service members] who 

objected to” the vaccine for different reasons and obtained an exemption. Masterpiece Cakeshop 

v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1730 (2018). 

Finally, it is true enough that “[h]ow much risk” the government must accommodate for a 

religious liberty claim is a “difficult question.” Def. Opp. 13 (citing Ramirez, 142 S. Ct. at 1287-

88 (Kavanaugh, J., concurring)). That’s why courts turn to objective factors, including whether 

defendants or others have allowed accommodations “without apparent problems.” Ramirez, 142 

S. Ct. at 1288 (Kavanaugh, J., concurring). Here, there have been no apparent problems with the 

religious exemptions now being allowed in other branches (see Section III.D below), or with the 

numerous non-religious accommodations the Coast Guard has been allowing for more than a 

year. Accordingly, Plaintiffs and the Class are likely to prevail on the merits.16

C. Irreparable injury will result absent injunctive relief.

The Coast Guard cannot seriously deny that if Plaintiffs are likely to succeed on the 

merits, they have established irreparable harm. Def. Opp. 36-37. When government “forces [one] 

to choose between following the precepts of her religion and forfeiting benefits, on the one hand, 

and abandoning one of the precepts of her religion in order to accept work, on the other hand,” 

there is an irreparable substantial burden on one’s religious exercise. Sherbert, 374 U.S. at 404. 

 

15 See also Stone 2nd Suppl. Decl., Suppl. Appx 301 (noting that his commander also said he 

would be willing to consider medical exemptions).

16 “[F]or the same reasons,” Plaintiffs are likely to prevail on their Free Exercise claim since the 

Coast Guard’s policy is not neutral or generally applicable. Navy SEALs 1-26, 2022 WL 

1025144, at *12.

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“The crisis of conscience imposed by the mandate is itself an irreparable harm.” Navy SEALs 1-

26, 2022 WL 1025144, at *5 (quoting original preliminary injunction entered in favor of named 

plaintiffs). The irreparable harm is not a “speculative” “possibility” or a “circular invocation” of 

Plaintiffs’ merits arguments, as the Coast Guard claims. Def. Opp. 42-43. The harm is real, 

concrete, non-speculative, irreparable, and necessarily tied to the merits of the case. Sherbert, 

374 U.S. at 404; Navy SEALs 1-26, 2022 WL 1025144, at *5. The Coast Guard’s failure to 

acknowledge this irreparable harm is yet another example of the Coast Guard’s callous disregard 

(lack of “fair empathy,” Navy Seal 1 v. Biden, 574 F.Supp.3d 1124, 1142 (M.D. Fla. 2021)) for 

the immense pressure imposed on Plaintiffs and the Class to violate their religious beliefs for the 

sake of their livelihoods and often those of their families, who rely on them.

D. The balance of hardships and public interest weigh in the Class’s 

favor.

The Coast Guard asserts that allowing Plaintiffs and the Class to continue serving would 

endanger readiness and public safety. Def. Opp. 44. To the contrary, their service is essential to 

readiness and public safety, particularly given the military’s present recruitment and retention 

crisis (which the Coast Guard ignores here). One recent prominent example: putative Class 

members served key roles in saving lives in the aftermath of Hurricane Ian—and the Commander 

in Chief called one of those putative Class members personally and thanked him. See ECF No. 

37 at 2 n.2. Further, as noted, Plaintiff Jackson’s current command requested a 24-month delay 

of his discharge for “operational reasons” (though the Coast Guard has to date not approved that 

request). CG Appx 101. And the Coast Guard offers no evidence the Navy-wide injunction, in 

place for more than six months and applicable to approximately 4,000 service members, has 

compromised readiness or safety whatsoever—that it has led to increased deaths, 

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20

hospitalizations, or even “cases.”17 The at-most-minimal risk of letting the 1,200 or so Class 

members continue serving in the Coast Guard supports, rather than impedes, its missions. 

The Coast Guard also mistakenly claims allowing service members to defy “lawful 

orders” disserves the public interest. Def. Opp. 45. First, because the Mandates do not 

accommodate free exercise of religion, they are not “lawful” orders,18 as discussed at length. But 

“even if, in some cases, a soldier’s failure to follow... standards might signal a rebellious streak 

or reflect a lack of impulse control or discipline,” the Coast Guard “fails to grapple with the fact 

that any deviation from the rules on plaintiff[s’] part flows from a very different source”—i.e., 

“faithful[] adhere[nce] to the strict dictates of [their] religion.” Singh, 185 F. Supp.3d at 227. 

Legitimate consideration of religious accommodation requests is thus within the deepest 

traditions of our country and the fundamental freedom the parties have sworn to protect.

IV. CONCLUSION

As the Coast Guard’s purge of religious service members continues, the need for Classwide relief grows more compelling and urgent. For all of the reasons set forth above and in 

Plaintiffs’ Memorandum in Support, the Court should certify the Class, appoint Plaintiffs’ 

counsel as Class counsel, and enter a preliminary injunction that enjoins Defendants from 

enforcing the Mandates against Plaintiffs or any member of the Class and from taking any 

adverse action against any member of the Class on the basis of this lawsuit or of any member’s 

request for religious accommodation related to the Mandates.

 

17 Likewise, the Coast Guard provides no evidence that the Air Force-wide injunction (in place 

for over two and a half months, applicable to approximately 8,000 service members) or the 

Marine Corps-wide injunction (in place for nearly two months, applicable to approximately 

3,700 service members) has compromised readiness or safety.

18 The COVID-19 vaccine Mandate is not the first vaccine mandate Defendants have unlawfully 

imposed. See, e.g., Doe v. Rumsfeld, 297 F. Supp.2d 119 (D.D.C. 2003) (granting military-wide 

preliminary injunction against unlawful anthrax-vaccine mandate); Doe v. Rumsfeld, 341 F. 

Supp.2d 1 (D.D.C. 2004) (granting permanent injunction against same). May it be the last.

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21

Dated: October 14, 2022

Respectfully submitted,

/s/ Michael G. McHale

Stephen Crampton, pro hac vice Charles W. Fillmore

THOMAS MORE SOCIETY – Senior Counsel State Bar # 00785861

PO Box 4506 H. Dustin Fillmore III

Tupelo, MS 38803 State Bar # 06996010

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

scrampton@thomasmoresociety.org 201 Main Street, Suite 700

Fort Worth, TX 76102

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

THOMAS MORE SOCIETY – Counsel chad@fillmorefirm.com

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

Omaha, NE 68114

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

mmchale@thomasmoresociety.org THOMAS MORE SOCIETY – Special Counsel

5101 Old Highway 5, Box 442

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

Hochschild Law Firm (559)744-3664

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

PO Box 401 

Plainfield, VT 05667

(314)503-0326

adam@hochschildlaw.com

Mary Catherine Hodes, pro hac vice

THOMAS MORE SOCIETY – Special Counsel

112 S. Hanley Rd., Second Floor

Clayton, MO 63105

(314)825-5725

mchodes@thomasmoresociety.org

Paul M. Jonna*

LiMandri & Jonna LLP

THOMAS MORE SOCIETY – Special Counsel

P.O. Box 9120

Rancho Santa Fe, CA 92067

(858)759-994

pjonna@limandri.com

* pro hac vice application forthcoming

Counsel for Plaintiffs

Case 4:22-cv-00825-P Document 38 Filed 10/14/22 Page 27 of 27 PageID 1098