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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ERIC JACKSON, ALARIC STONE, and )

MICHAEL MARCENELLE, on behalf of )

themselves and all others similarly situated, )

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

Plaintiffs, )

v. )

)

ALEJANDRO N. MAYORKAS, in his official )

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

)

Defendants. )

EMERGENCY MOTION FOR EXPEDITED RULING ON PLAINTIFFS’ MOTION 

FOR PRELIMINARY INJUNCTION AND BRIEF IN SUPPORT

Plaintiffs, Eric Jackson, Alaric Stone, and Michael Marcenelle, respectfully move for an 

expedited ruling on their pending Motion for Preliminary Injunction filed September 16, 2022. 

ECF No. 4. As explained in the brief below, Plaintiff Marcenelle requires urgent relief 

encompassed by the fully-briefed Motion for Preliminary Injunction. Specifically, without this 

Court’s grant of urgent relief ordering a noncompetitive “in place” promotion for Plaintiff 

Marcenelle, or a special selection board, by April 29, 2023, he will not promote to Lieutenant on 

that date—as he otherwise would have, without change in his duties, but for his religious inability 

to obtain a COVID-19 vaccine, and Defendants’ concomitant (and illegal) policy of categorically 

denying all requests for religious accommodation from its COVID-19 vaccine mandate.

Failure to promote by April 29 will cause Plaintiff Marcenelle additional and imminent 

irreparable harm. The Court should grant Plaintiffs’ Motion for Expedited Ruling as well as 

Plaintiffs’ Motion for Preliminary Injunction, with specific relief enjoining the Coast Guard from 

refusing to promote Plaintiff Marcenelle on April 29, 2023.

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WHEREFORE, Plaintiffs respectfully move the Court for an expedited ruling on their 

motion for preliminary injunction with respect to the issue of Plaintiff Marcenelle’s promotion, 

and for such other and further relief to which they may be entitled.

CERTIFICATE OF CONFERENCE

This motion is opposed. Plaintiffs’ counsel emailed Defendants’ counsel on Friday, April 

21, 2023, to advise of their intention to file this motion and asking whether Defendants opposed. 

Having not received any response to that email, counsel then telephoned Defendants’ counsel on 

April 24, 2023, and was informed that Defendants oppose the motion.

 /s/ Stephen Crampton_____

Stephen Crampton

Counsel for Plaintiffs

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BRIEF IN SUPPORT OF MOTION

Plaintiffs, Eric Jackson, Alaric Stone, and Michael Marcenelle, respectfully move for an 

expedited ruling on their pending Motion for Preliminary Injunction filed September 16, 2022. 

ECF No. 4. Defendants filed their Response on October 7, 2022. ECF No. 30. Plaintiffs filed their 

Reply on October 14, 2022. ECF No. 39. Accordingly, the Motion for Preliminary Injunction has 

been fully briefed for over six months.

At the present time, Plaintiff Marcenelle requires urgent, critical relief from the continuing 

practical consequences of the Coast Guard’s unlawful vaccine mandate and its coercive 

enforcement policies. Specifically, without this Court’s grant of urgent relief ordering a 

noncompetitive “in place” promotion or, alternatively, a special selection board, Plaintiff 

Marcenelle will not promote to Lieutenant on April 29, 2023—as he otherwise would have, 

without change in his duties, but for his religious inability to obtain a COVID-19 vaccine, and 

Defendants’ concomitant (and illegal) policy of categorically denying all requests for religious 

accommodation from its COVID-19 vaccine mandate. ECF No. 73 at 11, ¶5; ECF No. 6-2 at 238, 

¶33.The Coast Guard’s refusal to timely promote Plaintiff Marcenelle is the latest push in a twentymonth campaign to coerce him to violate his religious beliefs, and its continued refusal to remedy 

the ongoing collateral consequences (including this imminent consequence) of its illegal and 

unconstitutional denial of all religious accommodations to its COVID-19 vaccine mandate. Indeed, 

the Coast Guard’s action disregards its own mandatory regulation, COMDTINST 1000.15, which 

states that the Coast Guard “may not use [the conscience, moral principles, or religious beliefs of 

the member] as the basis of . . . denial of promotion.” ECF No. 1 at ¶53.

The Coast Guard’s action is causing Plaintiff Marcenelle irreparable harm. Elrod v. Burns, 

427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of 

time, unquestionably constitutes irreparable injury.”); O Centro Espirita Beneficiente Uniao Do 

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Vegetal v. Ashcroft, 389 F.3d 973, 1008 (10th Cir. 2004) (en banc) (Seymour, J., concurring in 

relevant part for a majority of the court) (“[T]he violation of one's right to the free exercise of 

religion necessarily constitutes irreparable harm.”), aff'd sub nom. Gonzales v. O Centro Espirita 

Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006); S. Bay United Pentecostal Church v. 

Newsom, 959 F.3d 938, 947 (9th Cir. 2020) (Collins, J., dissenting from denial of injunction 

pending appeal). “Because [Plaintiff Marcenelle’s] tangible injuries are inextricably intertwined 

with [his] loss of constitutional rights, [he has] suffered and will continue to suffer irreparable 

harm absent immediate relief.” Schelske v. Austin 2022 WL 17835506, at *28 (N.D. Tex. Dec. 21, 

2022) (cleaned up).

In addition, the taint of a missed promotion indelibly mars Plaintiff Marcenelle’s career 

prospects, as described in the uncontradicted declarations of both Vice Admiral Lee and Plaintiff 

Marcenelle. ECF No. 73 at 251; id. at 12. It also places substantial and unmistakable pressure on 

Plaintiff Marcenelle to voluntarily resign from the Coast Guard by docking him roughly $2,000 

per month in pay for obeying the requirements of his religion—or to compromise his religious 

beliefs in hopes that he will no longer be considered a law-breaker within the Coast Guard. Id. at 

14; 252-253.

Moreover, this action is fully within the power of this Court to prevent. “In certain 

exceptional cases, this court can award promotion and back pay . . . if there is a clear, legal 

entitlement to it.” Guy v. United States, 608 F.2d 867, 874 (Ct. Cl. 1979). The unlawful violation 

of Plaintiff Marcenelle’s First Amendment and RFRA rights provides that “clear, legal 

entitlement” here. See Emory v. Sec'y of Navy, 819 F.2d 291, 294 (D.C. Cir. 1987) 

(“[C]onstitutional questions that arise out of military decisions regarding the composition of the 

armed forces are not committed to the other coordinate branches of government. Where it is 

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alleged, as it is here, that the armed forces have trenched upon constitutionally guaranteed rights 

through the promotion and selection process, the courts are not powerless to act.”); see also Singh 

v. Berger, 56 F.4th 88, 110 (D.C. Cir. 2022) (ordering district court to “prompt[ly]” enter 

preliminary injunction under RFRA “requiring the Marine Corps to allow” plaintiff members of 

Sikh religion to enlist notwithstanding their religious opposition to shaving their heads or beards, 

where they were otherwise qualified to enlist).

Although Plaintiffs now request emergency relief by April 29, Plaintiffs only do so as a 

last resort. In addition to requesting relief encompassing this now-emergency relief in their original 

complaint (ECF No. 1 at 66-67) and fully-briefed Motion for Preliminary Injunction (ECF No. 4

at 2) (requesting an injunction preventing “Defendants . . . from taking any adverse action against 

Plaintiffs”), Plaintiffs have highlighted the specific issue of the denied promotion for months:

• On January 25, 2023, following Plaintiffs’ good-faith participation in court-ordered 

mediation a week before, Plaintiffs filed a report notifying the Court of the 

mandate’s rescission. Plaintiffs also highlighted the many lingering adverse actions 

which the rescission failed to address and the Coast Guard refused to resolve during 

mediation, including Plaintiff Marcenelle’s unlawfully withheld promotion. ECF 

No. 64 at 3.

• On February 7, 2023, Plaintiffs filed a supplemental report notifying the Court of 

additional Coast Guard rescission guidance, again stressing the Coast Guard’s 

failure to remedy Plaintiff Marcenelle’s denied promotion. ECF No. 67 at 2-3.

• On March 31, 2023, Plaintiffs filed a memorandum in opposition to Defendants’ 

motion to dismiss. In the memorandum, Plaintiffs emphasized Plaintiff 

Marcenelle’s urgent need for relief. ECF No. 72 at 2. Plaintiffs also explained that 

this case is not moot due, at least in part, to the imminent irreparable harm Plaintiff 

Marcenelle continues to face and this Court’s power to provide him with this critical 

relief. See, e.g., id. at 14-16.

• On April 21, 2023, Plaintiffs contacted Defendants’ counsel to inquire whether the 

Coast Guard opposed the need for immediate relief. Defendants’ counsel did not 

respond.

• On April 24, 2023, Plaintiffs’ counsel telephoned Defendants’ counsel and 

confirmed that Defendants oppose this motion.

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Separately, Plaintiff Marcenelle sought relief for his denied promotion outside of a court 

order by requesting a Special Selection Board on March 22, 2023. ECF No. 73 at 13. The Coast 

Guard is not required to approve his request within any timeline, and even if granted, the Coast 

Guard is not required to promote him within any timeline. Id.

Plaintiffs’ earnest and consistent efforts to avert this harm have only been met with 

disregard and inaction by the Coast Guard:

• On February 17, 2023, the Coast Guard noted multiple updated policies alleviating 

some forms of coercion on unvaccinated service members, but did not—and could 

not—cite any guidance on restoring denied promotions. ECF No. 68.

• On March 10, 2023, the Coast Guard brazenly contended that “vaccination status 

is no barrier to . . . promotion” (ECF No. 70 at 9), conveniently forgetting cases 

such as Plaintiff Marcenelle’s where his religiously motivated vaccination status 

was the only barrier to a non-competitive promotion that it continues to deny. See, 

e.g., ECF No. 72 at 22. 

• On April 14, 2023, after being reminded that Plaintiff Marcenelle continues to face 

a certain and irreparable harm, the Coast Guard glibly noted “[b]ut the Coast Guard 

will give him another look in the next promotion cycle.” ECF No. 74 at 4. Even 

more revealing, the Coast Guard casts their coercion as nothing more than “Plaintiff 

Marcenelle [being] dissatisfied that he has not yet been granted a promotion.” Id.1

• As of this filing, the Coast Guard has not even made a decision on Plaintiff 

Marcenelle’s request, let alone selected him for promotion.

The Coast Guard’s filings and inaction underscore their intent to continue punishing 

Plaintiff Marcenelle for following his religious obligations. The Coast Guard’s obstinate refusal to 

amend its ways sends Plaintiff Marcenelle a clear message: your religious beliefs are not welcome. 

The Coast Guard remains determined to ignore the brazen illegality of its categorical refusal to 

1 In fact, the Coast Guard presented no evidence whatsoever explaining a legitimate reason for 

denying Plaintiff Marcenelle’s promotion. Plaintiff Marcenelle’s statements remain

uncontradicted: the only derogatory information presented to the board was for his mandate 

noncompliance records, the promotion board was instructed to automatically deny promotion to 

anyone with a recorded vaccine objection, and his chances of selection during the next promotion 

cycle are dramatically lower due to his nonselection. ECF No. 73 at 13-14. Defendants had an 

opportunity to rebut this evidence, and conspicuously did not take it.

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grant any religious accommodations to its COVID-19 vaccine mandate, or to remedy the collateral 

consequences therefrom—including by way of severely reduced pay for Plaintiff Marcenelle and 

the indelible taint of a missed noncompetitive promotion.

Accordingly, Plaintiffs move for an expedited ruling on their fully-briefed Motion for 

Preliminary Injunction. ECF No. 4. The Court should expedite its ruling and thereby prevent the 

Coast Guard from inflicting yet more irreparable harm upon Plaintiff Marcenelle.

Moreover, after granting this Motion for an Expedited Ruling, Plaintiffs urge the Court to

grant Plaintiffs’ Motion for Preliminary Injunction and enjoin “Defendants . . . from taking any 

adverse action against Plaintiffs.” Id. at 2. This injunctive relief should specifically require the 

Coast Guard to grant Plaintiff Marcenelle his noncompetitive, “in place” promotion to Lieutenant 

by April 29, 2023, or, alternatively, to grant him a special selection board with sufficient time for 

him to be granted the promotion by April 29, 2023. See ECF No. 72 at 15. 

CONCLUSION

Plaintiff Marcenelle faces imminent and irreparable harm absent prompt relief from this 

Court. The Court should therefore grant this motion and award Plaintiff Marcenelle the promotion

to Lieutenant, or in the alternative an order directing that a special selection board be convened,

and such other and further relief to which Plaintiffs may be entitled.

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Dated: April 24, 2023

Respectfully submitted,

/s/Stephen M. Crampton

Stephen Crampton, pro hac vice Charles W. Fillmore

THOMAS MORE SOCIETY – Senior Counsel State Bar # 00785861

PO Box 4506 H. Dustin Fillmore III

Tupelo, MS 38803 State Bar # 06996010

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

scrampton@thomasmoresociety.org 201 Main Street, Suite 700

Fort Worth, TX 76102

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

THOMAS MORE SOCIETY – Counsel chad@fillmorefirm.com

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

Omaha, NE 68114

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

mmchale@thomasmoresociety.org THOMAS MORE SOCIETY – Special Counsel

5101 Old Highway 5, Box 442

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

Hochschild Law Firm (559)744-3664

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

PO Box 401 

Plainfield, VT 05667

(314)503-0326

adam@hochschildlaw.com

Mary Catherine Hodes, pro hac vice

THOMAS MORE SOCIETY – Special Counsel

112 S. Hanley Rd., Second Floor

Clayton, MO 63105

(314)825-5725

mchodes@thomasmoresociety.org

Paul M. Jonna, pro hac vice

LiMandri & Jonna LLP

THOMAS MORE SOCIETY – Special Counsel

P.O. Box 9120

Rancho Santa Fe, CA 92067

(858)759-994

pjonna@limandri.com

Counsel for Plaintiffs

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