UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ERIC JACKSON, et. al.,

Plaintiffs,

v.

ALEJANDRO N. MAYORKAS, 

Secretary of Homeland Security, et al.,

Defendants.

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

DEFENDANTS’ SUPPLEMENTAL BRIEF

The Court recently ordered the parties to file supplemental briefs on the following 

questions: 

1. Whether the Fifth Circuit’s holding in U.S. Navy SEALs 1-26 v. Biden, No. 22-

10077, 2023 WL 4362355 (5th Cir. July 6, 2023) provides support for Plaintiffs 

or Defendants?

2. Whether Plaintiffs’ Motion for Preliminary Injunction is moot due to the 

rescission of Defendants’ COVID-19 vaccination policy?

3. Whether the case is moot if Plaintiffs seek relief beyond enjoining Defendants’ 

COVID-19 vaccination policy?

See ECF No. 92. Defendants respectfully submit the following responses to the Court’s questions. 

1. The Fifth Circuit’s decision in U.S. Navy SEALs provides controlling support for 

Defendants’ motion to dismiss this case as moot. In U.S. Navy SEALs, the Navy had appealed 

individual and class-wide preliminary injunctions that prohibited enforcement of the military’s 

COVID-19 vaccination requirement as to Navy service members who had sought religious

exemptions from the vaccination requirement. See 2023 WL 4362355, at *2. But after the 

military’s rescission of the COVID-19 vaccination requirement, the Fifth Circuit found that the 

Navy’s appeal had become moot and that no exception to mootness applied. See id. at *3–5. In 

reaching its conclusion, the Fifth Circuit recognized that “mootness is the default” in such

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circumstances. Id. at *3. And in U.S. Navy SEALs, the Fifth Circuit found that default rule 

applicable because the Navy had “[o]bey[ed] a newly enacted federal statute” by “rescind[ing] its 

COVID-19 mandate,” “revoked each of the implementing policies,” and “promulgated new 

policies” clarifying that Navy servicemembers were no longer subject to a COVID-19 vaccination 

requirement. Id. “Such actions,” the Fifth Circuit held, “moot a dispute over the lawfulness of 

military vaccine mandates.” Id.

That holding all but compels dismissal here. Obeying the same statute at issue in U.S. Navy 

SEALs, Defendants here—one of whom is also a defendant in U.S. Navy SEALs—have rescinded 

the policies that previously required Plaintiffs to become vaccinated against COVID-19. See Sec’y 

of Def. Rescission Mem. (Jan. 10, 2023), App’x 001 (rescinding “the mandate that members of the 

Armed Forces be vaccinated against COVID-19, issued in [the Secretary of Defense’s] August 24, 

2021 memorandum”); ALCOAST 012/23 (Jan. 11, 2023), App’x 003, (cancelling ALCOAST 

305/21 (Aug. 26, 2021), which had directed all Coast Guard active duty and ready reserve members

to become vaccinated “[c]onsistent with the Secretary of Defense’s direction,” and ALCOAST 

315/21 (Sept. 7, 2021), which instructed commanders, commanding officers, and officers in charge 

to direct unvaccinated Coast Guard members to begin vaccination immediately). Defendants have 

also revoked the policies that previously implemented that requirement. See, e.g., ALCGOFF 

005/23 ¶ 3 (Jan. 26, 2023), App’x 006 (“cancel[ling] all assignment and training restrictions” 

imposed by ALCGPSC 016/22 and ALCGPSC 104/21); ALCGENL 013/23 ¶ 3 (Jan. 25, 2023), 

App’x 004 (similarly noting cancellation of “assignment, boards and panels, and training 

restrictions”). And they have formally promulgated new directives that preclude COVID-19 

vaccination status from inhibiting service in the Coast Guard. See, e.g., ALCGENL 013/23 ¶ 1 

(Jan. 25, 2023), App’x 003 (expressing the Coast Guard’s “particular focus on retaining 

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unvaccinated members, facilitating their participation in Assignment Year 2023 (AY23), and 

preserving their advancement eligibility”); id. ¶ 4, App’x 003 (affirming that “[a] member’s refusal 

of the COVID-19 vaccination alone does not require the withholding of advancement” and 

requiring commanders to amend previous recommendations that had been based solely on a 

member’s refusal to vaccinate); ALCGRSV 003/23 (Jan. 26, 2023), App’x 007 (similar with 

respect to reserve members); ALCGPSC 024/23 ¶ 1 (Feb. 27, 2023), App’x 011 (noting steps “to 

remove all CG-3307 Administrative Remark Entries related to the COVID-19 vaccination 

mandate”); ALCGPSC 044/23 ¶ 2 (Mar. 22, 2023), App’x 013 (instructing commands to request 

that Unsatisfactory Conduct marks awarded solely based on a member’s noncompliance with the 

COVID-19 vaccination mandate “be upgraded to Satisfactory”); ALCGRSV 008/23 ¶ 3 (Mar. 16, 

2023) (noting that “[u]nvaccinated reservists are authorized to be issued voluntary active duty 

orders of any type”); ALCGPSC 058/23 ¶ 6 (Apr. 12, 2023), App’x 015 (explaining that officers 

“who were considered but not selected for promotion in PY23 and had CG-3307 Administrative 

Remarks Entries removed from their records . . . may request consideration by a Special Selection 

Board” to be reconsidered for promotion). In short, because Defendants have lifted the COVID19 vaccination requirement and ordered the adverse actions associated with it to be undone, the 

“dispute over the lawfulness of military vaccine mandates” in this case is moot. U.S. Navy SEALs,

2023 WL 4362355, at *3. 

Critically, in addition to recognizing mootness in circumstances materially 

indistinguishable from this case, the Fifth Circuit also rejected virtually all of the theories Plaintiffs 

have advanced here to save their case from dismissal. Among other things, the plaintiffs in U.S. 

Navy SEALs (like Plaintiffs here) had contended that, notwithstanding the rescission of the 

military’s COVID-19 vaccination policy, they continued to suffer from “adverse actions” and 

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collateral consequences stemming from the former policy. See 2023 WL 4362355, at *4. But the 

Fifth Circuit found these allegations irrelevant to its mootness analysis because “Navy policies 

now formally prohibit ‘any new adverse administrative actions’ against unvaccinated 

servicemembers and require removing past adverse actions.” Id. So too here. See, e.g.,

ALCOAST 012/23 (Jan. 11, 2023) (cancelling vaccination requirement); ALCGPSC 024/23 ¶ 1 

(Feb. 27, 2023), App’x 011 (authorizing removal of vaccine-mandate-related administrative 

remarks); ALCGPSC 044/23 ¶ 2 (Mar. 22, 2023), App’x 013 (requiring upgrades to unsatisfactory 

marks based on vaccination status). As in U.S. Navy SEALs, because Defendants have 

“definitively restored Plaintiffs to equal footing with their vaccinated counterparts through 

repeated formal policy changes,” 2023 WL 4362355, at *4, Plaintiffs cannot complain that they 

still need relief from “adverse actions” imposed under the rescinded policy. 

The Fifth Circuit similarly rejected the doctrine of voluntary cessation as inapplicable in 

U.S. Navy SEALs, and in doing so, rejected the very arguments Plaintiffs have pressed in this case. 

See id. at *4–6. In contradistinction to Plaintiffs in this case, see Pls.’ MTD Opp’n, ECF No. 72, 

at 1, 18, 20, the Fifth Circuit refused to require the defendants in U.S. Navy SEALs to disavow “a 

new vaccine mandate in the future,” noting that “[i]t is black-letter law that the government’s mere 

‘ability to reimplement the statute or regulation at issue is insufficient to prove the voluntarycessation exception.’” Id. at *5. Instead, the court emphasized that the Navy had “rapidly 

complied” with the National Defense Authorization Act’s directive to rescind the COVID-19 

vaccination requirement, “promulgated multiple binding policies going beyond what Congress 

required to eradicate the effects of the mandate,” and provided “official assurances” that COVID19-vaccination status would not be considered for purposes of assessing service members’ 

performance and suitability. Id. All of these circumstances indicated, just as they do here, that 

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there could be no serious suggestion of litigation gamesmanship on the part of the military. And 

that conclusion was only reinforced by the Fifth Circuit’s recognition, in the face of arguments to 

the contrary, that “[g]overnmental entities bear a ‘lighter burden’ in proving that the challenged 

conduct will not recur once the suit is dismissed as moot,” that courts should “presume that state 

actors, as public representatives, act in good faith,” and that, absent evidence to the contrary, courts 

“assume that formally announced changes to official government policy are not mere litigation 

posturing.” Id. at *5. 

Notably, the Fifth Circuit found it unnecessary to decide whether the Navy’s rescission of 

the COVID-19 vaccination requirement was voluntary. See id. at *5 n.7. Plaintiffs hotly contest 

whether Defendants here were involuntarily required to rescind the COVID-19 vaccination 

requirement for members of the Coast Guard. See, e.g., Pls.’ MTD Opp’n, ECF No. 70, at 1, 16–

17. Indeed, they have pointed to Defendants supposedly voluntary action as a principal basis to 

distinguish the mootness analysis in this case from that in the many similar cases that have been 

dismissed as moot across the country. See Pls.’ Response to Notice re Bazzrea and Abbott, ECF 

No. 87, at 3, 4 n.1; Pls.’ Response to Notice re Crocker, ECF No. 90, at 3. As Defendants have 

explained elsewhere, Plaintiffs’ novel view is puzzling and wrong. See, e.g., Defs.’ MTD Reply, 

ECF No. 74, at 7–8. But more fundamentally, the Fifth Circuit’s analysis in U.S. Navy Seals

confirms that Plaintiffs’ view is also irrelevant to boot. See 2023 WL 4362355, at *5 n.7 (“We 

need not address this argument. Whether or not the Navy rescinded the mandate involuntarily, it 

took other actions to remedy Plaintiffs’ asserted harms that the NDAA did not expressly require: 

namely, treating unvaccinated and vaccinated servicemembers alike for purposes of deployment, 

assignment, and operational decisions.”). Rather than assess voluntariness, the Fifth Circuit

simply focused on the absence of any grounds to conclude “that the upper echelons of the Navy, 

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including the Secretary of the Navy, issued the post-rescission policies with an eye toward 

resuming the challenged conduct as soon as the courts were done.” U.S. Navy SEALs, 2023 WL 

4362355, at *6. That dearth of evidence, uniformly recognized in military COVID-19 vaccination

cases assessing voluntary cessation, is likewise sufficient here to reject Plaintiffs’ appeal to the 

voluntary-cessation exception to mootness.

The Fifth Circuit in U.S. Navy SEALs also declined to apply the exception for controversies 

that are capable of repetition yet evade judicial review, which Plaintiffs also invoke here. See id.

at *6; see also Pls.’ MTD Opp’n, ECF No. 72, at 23–24. Ultimately, the Fifth Circuit found it 

unnecessary to consider that exception in the context of an interlocutory appeal, where no litigation 

had yet been concluded through final judgment. See 2023 WL 4362355, at *6. Instead, the court 

determined that the district court should evaluate in the first instance on remand whether the 

plaintiffs’ claims remained justiciable. See id. In doing so, the Fifth Circuit reinforced the strict 

limits on the exception—namely that it requires “the challenged action [be] in its duration too short 

to be fully litigated prior to cessation or expiration, and [that] there [be] a reasonable expectation 

that the same complaining party will be subject to the same action again,” and that it “applies ‘only 

in exceptional situations.’” Id. Considered alongside the Fifth Circuit’s other reasoning 

throughout the opinion, the treatment of the exception for controversies that are capable of 

repetition yet evade judicial review in U.S. Navy SEALs provides ample reason to doubt that this 

case presents the sort of “exceptional situation” where a plaintiff may invoke it.

To be sure, the Fifth Circuit applied its mootness analysis in U.S. Navy SEALs only to the 

Navy’s appeal from the district court’s preliminary-injunction orders, leaving it for the district 

court to “decide in the first instance whether any of Plaintiffs’ claims are justiciable” or moot. Id. 

at *6. That was entirely appropriate: Only the Navy’s interlocutory appeal from the district court’s 

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preliminary-injunction orders was before the Fifth Circuit at the time of its decision, while 

extensive litigation had continued in the district court throughout the appeal’s pendency and 

remained ongoing. Indeed, in resolving only the mootness of the specific appeal before it, the 

Fifth Circuit’s decision accords with the decisions of every other court of appeals to confront 

similar circumstances. See Roth v. Austin, 62 F.4th 1114, 1119 (8th Cir. 2023); Navy Seal 1 v. 

Austin, No. 22-5114, 2023 WL 2482927, at *1 (D.C. Cir. Mar. 10, 2023); Dunn v. Austin, No. 22-

15286, 2023 WL 2319316, at *1 (9th Cir. Feb. 27, 2023); Short v. Berger, No. 22-15755, 2023 WL 

2258384, at *1 (9th Cir. Feb. 24, 2023); cf. Doster v. Kendall, 65 F.4th 792, 793 (6th Cir. 2023) 

(concluding, in a case where the mooting events post-dated the court’s decision on appeal, that the 

district court should review questions of mootness in the first instance); Robert v. Austin, --- F. 4th

----, 2023 WL 4361082, at *3 (10th Cir. July 6, 2023) (finding the entire case moot on appeal 

where the plaintiff had appealed a final judgment rather than an interlocutory order). But in 

remanding “for further proceedings consistent with [its] opinion,” U.S. Navy SEALs, 2023 WL 

4362355, at *7, the Fifth Circuit gave no reason to doubt whether its reasoning concerning the 

preliminary-injunction appeal would apply with equal force to moot the plaintiffs’ claims before 

the district court. Cf. Creaghan v. Austin, No. 22-cv-981-CKK, 2023 WL 3274309, at *1 (D.D.C. 

Mar. 10, 2023) (dismissing case as moot following remand by D.C. Circuit). Because U.S. Navy 

SEALs underscores the mootness of Plaintiffs’ claims in this case, the Court should grant 

Defendants’ motion to dismiss this case as moot. 

2. The record in this case leaves no room for doubt: Plaintiffs’ motion for a preliminary 

injunction is moot due to the rescission of Defendants’ COVID-19 vaccination policy. Through 

their motion, Plaintiffs sought an order 

restraining and enjoining Defendants . . . from enforcing, threatening to enforce, 

attempting to enforce, or otherwise requiring compliance with certain COVID-19 

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vaccine mandates—including Department of Defense’s August 24, 2021 Order and 

the Coast Guard’s August 2021 Order, Coast Guard ALCOAST 305/21, Coast 

Guard ALCOAST 315/21, and Coast Guard ALCOAST 270/22 (collectively, the 

“Mandates”)—against Plaintiffs or any member of the Class, and enjoining 

Defendants . . . from taking any adverse action against Plaintiffs or any member of 

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

for religious accommodation related to the Mandates.

Pls.’ Prelim. Inj. Motion, ECF No. 4, at 4. Whether or not Plaintiffs needed that relief at the time 

of their motion, they clearly do not need it now because Defendants have “[o]bey[ed] a newly 

enacted federal statute” by “rescind[ing] [their] COVID-19 mandate” and “revoked each of the 

implementing policies.” U.S. Navy SEALs, 2023 WL 4362355, at *3; see also Sec’y of Def. 

Rescission Mem. (Jan. 10, 2023), App’x 001; ALCOAST 012/23 (Jan. 11, 2023), App’x 003.

1

 In 

addition, Defendants have issued formal policies that prohibit new adverse actions on the basis of 

Plaintiffs’ vaccination status, require the correction of past adverse actions associated with the 

prior vaccination policy, and permit full participation in the service by unvaccinated members. 

See, e.g., ALCGOFF 005/23 ¶ 3 (Jan. 26, 2023), App’x 006 (cancelling assignment restrictions 

associated with the COVID-19 vaccination requirement); ALCGENL 013/23 ¶ 3 (Jan. 25, 2023), 

App’x 004 (similar); id. ¶ 1 (emphasizing “particular focus on retaining unvaccinated members, 

facilitating their participation in Assignment Year 2023 (AY23), and preserving their advancement 

eligibility”). 

Collectively, these actions have nullified the COVID-19 vaccination requirement and 

threats of enforcement from which Plaintiffs sought relief. See U.S. Navy SEALs, 2023 WL 

4362355, at *3 (concluding similar steps by the Navy mooted preliminary-injunction proceedings). 

1 Plaintiffs essentially acknowledged as much in conceding that a “preliminary injunction 

against ‘enforcement’ of the mandate itself[] is not currently warranted,” and simultaneously 

offering to “submit an updated proposed order.” Pls.’ Notice re Rescission, ECF No. 64, at 4. If 

Plaintiffs’ existing request for relief had not become stale, then there would be no reason to update 

it.

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As the Fifth Circuit recently held in no uncertain terms in U.S. Navy SEALs, “[t]here is no need to 

enjoin policies that no longer exist.” Id. at *4; see also Spell v. Edwards, 962 F.3d 175, 179 (5th 

Cir. 2020) (“It makes sense, then, that a case challenging a statute, executive order, or local 

ordinance usually becomes moot if the challenged law has expired or been repealed. Once the law 

is off the books, there is nothing injuring the plaintiff and, consequently, nothing for the court to 

do.” (citation omitted)). Thus, Plaintiffs’ motion for a preliminary injunction is moot. 

Virtually every court to consider the question has found that the rescission of the military’s 

COVID-19 vaccination requirement moots a request for preliminary-injunctive relief against that 

policy. Among them are four federal courts of appeals, including the Fifth Circuit. See U.S. Navy 

SEALs, 2023 WL 4362355, at *7 (holding that actions to rescind the vaccination requirement, 

revoke policies implementing it, and promulgate new policies to accommodate unvaccinated 

servicemembers “moot a dispute over the lawfulness of military vaccine mandates”); Roth, 62 

F.4th at 1119 (finding appeal seeking preliminary injunction moot where “[n]one of the Airmen is 

subject to a COVID-19 vaccination requirement, and no adverse action may be taken against the 

Airmen for refusing to receive the COVID-19 vaccine”); Navy Seal 1, 2023 WL 2482927, at *1

(similar result in Navy case); Dunn, 2023 WL 2319316, at *1 (similar result in Air Force case);

Short, 2023 WL 2258384, at *1 (9th Cir. Feb. 24, 2023) (similar result in Navy case). District 

courts have likewise found requests to preliminarily enjoin COVID-19 vaccination requirements

became moot following their rescission. See Clements v. Austin, No. 2:22-cv-2069-RMG, 2023 

WL 2386118, at *1 (D.S.C. Mar. 7, 2023) (dismissing motion to preliminarily enjoin the Coast 

Guard), reconsideration denied, 2023 WL 3479466 (D.S.C. May 16, 2023); Colonel Fin. Mgmt. 

Officer v. Austin, No. 8:21-cv-2429-SDM-TGW, 2023 WL 2764767, at *3 (M.D. Fla. Apr. 3, 2023)

(indicative ruling noting intent to dissolve preliminary injunction against the Marine Corps upon 

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remand); cf. Alvarado v. Austin, No. 1:22-cv-876-AJT-JFA, 2023 WL 2089246, at *3 (E.D. Va. 

Feb. 17, 2023) (finding that military chaplains’ requests for relief from vaccination requirement 

“are now stale given the Rescission Memo”). Indeed, the only court declining to find a preliminary 

injunction request moot did so based on circumstances unique to that case, where the court found 

the Secretary of Defense had “reserved the ability to punish [National] Guardsmen who didn’t seek 

a religious, administrative, or medical accommodation while the mandate was operative.” Abbott 

v. Biden, 70 F.4th 817, 825 (5th Cir. 2023). Notably, the Abbott court distinguished the continued 

applicability of the COVID-19 vaccination requirement’s enforcement mechanisms to certain 

National Guardsman from a situation like that presented in this case, where Defendants “simply 

rescind[ed] the vaccine mandate and all related enforcement measures,” id., noting that such 

complete abandonment of the prior policy “would very likely moot th[e] appeal,” id. at 824. Thus, 

an overwhelming judicial consensus supports a finding that Plaintiffs’ request for a preliminary 

injunction in this case has become moot. 

Plaintiffs have urged the Court to break with this judicial consensus, but none of their 

arguments warrant doing so. In particular, the “collateral consequences” Plaintiffs contend require

injunctive relief—principally the presence of administrative remarks in their personnel files

referencing vaccination status, previously missed opportunities for promotion and training, and a 

policy requiring unvaccinated personnel to quarantine when infected with COVID-19—provide 

no support for Plaintiffs’ continued claim to injunctive relief. In many instances, that is because 

those “consequences” are not, in fact, traceable to any ongoing application of the COVID-19 

vaccination requirement Plaintiffs challenged. Thus, any ruling on the propriety of that 

requirement would not redress the harms Plaintiffs identify. 

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As one example, Plaintiff Stone complains of an administrative remark in his personnel 

file “that references his vaccination status” and that he claims, without explanation, “continues to 

negatively impact” him. See Pls.’ Response re Bazzrea and Abbott, ECF No. 87; see also Fourth 

Suppl. Decl. of LTJG Alaric Stone, ECF No. 87-1. But that administrative remark cannot possibly 

be characterized as an “adverse action” imposed pursuant to the COVID-19 vaccination 

requirement that Plaintiffs challenged in this case; the remark pre-dates the adoption of that 

requirement by at least three months and merely documents Plaintiff Stone’s compliance with midpandemic restrictions on servicemembers’ movements. See Fourth Suppl. Decl. of LTJG Alaric 

Stone, ECF No. 87-1, at 4 (reflecting that policies were intended to promote readiness for patrol 

missions in Spring 2021).2

 Far from Defendants “refusing” to remove the remark, id. ¶ 3, Plaintiff 

Stone was simply informed that he “will have to follow established procedures if [he] want[s] to 

request it be removed” because the remark does not stem from the now-rescinded vaccination 

requirement and so is not covered by policies permitting the removal of vaccine-requirement 

remarks, id. at 3. Plaintiff Stone also complains about certain outdated COVID-19 health 

protection protocols, see Third Suppl. Decl. of LTJG Alaric Stone, ECF No. 73, at 7 ¶ 10, but those 

protocols—which Plaintiffs label a “discriminatory quarantine policy,” Pls. MTD Opp’n, ECF No. 

72, at 9—are independent of the mandatory vaccination requirement Plaintiffs challenged.

Similarly, Plaintiffs appear to contend that they face (or will soon face) a new vaccination 

requirement enacted sub silentio. See Pls.’ MTD Opp’n, ECF No. 72, at 4–5, 23 (surmising that 

Defendants have “implicitly asserted the continuing right to consider vaccination status as a factor, 

2 The remark further reflects that even vaccinated servicemembers were subject to 

restrictions on movement at that time. See Fourth Suppl. Decl. of LTJG Alaric Stone, ECF No. 

87-1, at 4 (prohibiting vaccinated servicemembers from using commercial transportation and 

attending gatherings of more than 50 persons). 

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even a significant factor, in making personnel decisions”). But all Plaintiffs can point to as the 

basis for that claim is their own rampant conjecture. Compare Pls.’ MTD Opp’n, ECF No. 72, at 

5 (citing ECF No. 67 at 3), and Pls.’ Response re Bazzrea and Abbott, ECF No. 87, at 3 (citing the 

same), with Pls.’ Notice, ECF No. 67, at 3 (speculating that ALCGENL 013/23 (Jan. 25, 2023) 

“implicitly allows the Coast Guard to consider vaccination status as a factor, even a substantial 

factor, meaning that getting vaccinated would plainly give one a presumptive advantage in 

obtaining advancement.”). That conjecture flies in the face of express military directives to the 

contrary. See Dep. Sec’y of Def. Mem. (Feb. 24, 2023), App’x 009–10 (providing that any future 

COVID-19 vaccination requirements will be subject to Department of Defense approval); see also 

ALCGENL 013/23 ¶ (Jan. 25, 2023), App’x 004 (providing guidance with a “particular focus on 

retaining unvaccinated members, facilitating their participation . . . and preserving their 

advancement eligibility”). In any event, as numerous courts, including the Fifth Circuit, have now 

held, the mere ability of the government to reenact a rescinded policy or some policy substantially 

like it provides no basis to reject a finding of mootness. U.S. Navy SEALs, 2023 WL 4362355, at 

*5 (“It is black-letter law that the government’s mere ability to reimplement the statute or 

regulation at issue is insufficient to prove the voluntary-cessation exception.” (quotation omitted)); 

see also Pool v. City of Houston, 978 F.3d 307 (5th Cir. 2020) (emphasizing the centrality of 

“formal policy change[s]” over informal representations in assessing mootness). 

Even setting aside Plaintiffs problems tracing their present complaints to the now-rescinded 

vaccination policy that they challenged, Plaintiffs also face insurmountable hurdles on 

redressability. Frustrated that Plaintiff Stone was unable to attend a particular training course in 

the past, Plaintiffs would have this Court micromanage the Coast Guard’s course offerings and 

dictate the time at which that particular course will be offered. Compare Pls.’ Response re Bazzrea 

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and Abbott, ECF No. 87, at 2–3 (alleging that Defendants “ha[ve] not permitted [Stone] to attend 

this course”), with Third Suppl. Decl. of LTJG Alaric Stone, ECF No. 73, at 6 ¶ 6 (indicating that 

the dates offered for the course are simply not to Plaintiffs’ liking). But missing a training session

pursuant to past policy provides no basis for prospective judicial relief. See Log Cabin 

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

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

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

“missed benefits are not legal penalties from past conduct”). And in any event, it is not within the 

ambit of federal courts to direct the course of such internal military affairs. See, e.g., Mindes v. 

Seaman, 453 F.2d 197, 201–02 (5th Cir. 1971) (“Courts should defer to the superior knowledge 

and experience of professionals in matters such as promotions or orders directly related to specific 

military functions.”). That rule should apply with even greater force here, where the harm 

Plaintiffs claim regarding Plaintiff Stone’s coursework is nebulous at best.

3

 

The same holds true with respect to Plaintiff Marcenelle, who missed a promotion

opportunity, yet has now been granted the Special Selection Board he requested in order to revisit 

that selection process. See ALCGOFF 042/23 ¶ 9 (June 8, 2023), App’x 017 (establishing that a 

selection board will convene on September 18, 2023 to consider Plaintiff Marcenelle for promotion 

to Lieutenant); Memorandum to Michael C. Marcenelle, LTJG re Special Selection Board 

Determination ¶¶ 3–4 (June 15, 2023), App’x 021 (explaining that the Lieutenant selection board 

will also be designated as a special selection board). If he is selected for promotion, Plaintiff 

3 As Defendants have noted, see Defs.’ MTD Reply, ECF No. 74, at 3, 4 n.3, it appears that 

Plaintiff Stone’s vaccination status did not, as a matter of policy, preclude him from participating 

in the training, see Third Suppl. Decl. of LTJG Alaric Stone, ECF No. 73, at 6 ¶ 5, and there is no 

clear relationship between his missing coursework and his (overwhelmingly positive) evaluation, 

see Officer Evaluation Report, ECF No. 73, at 9. 

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Marcenelle will receive pay, benefits, and rank with the same effective date as if he had been 

selected for promotion by his first selection board. See 14 U.S.C. § 2120(d); see also

Memorandum to Michael C. Marcenelle, LTJG re Special Selection Board Determination ¶ 4, 

App’x 021 (confirming this fact). Plaintiffs cannot short-circuit that administrative process with 

preemptive appeals to this Court. See Hodges v. Callaway, 499 F.2d 417, 419–20 (5th Cir. 1974) 

(requiring that a plaintiff first exhaust all “available intraservice corrective measures” before 

bringing to federal court claims implicating “internal military affairs” (quoting Mindes, 453 F.2d 

at 201)). And even setting aside considerations of procedural regularity, this Court lacks authority 

to substitute its judgment for that of the appointing authorities. See, e.g., Orloff v. Willoughby, 345 

U.S. 83, 92 (1953) (“Whether Orloff deserves appointment is not for judges to say and it would be 

idle, or worse, to remand this case to the lower courts on any question concerning his claim to a 

commission.”).

Finally, to the extent Plaintiffs’ true concern is that they face reputational harms due to their 

association with this case and their refusal to become vaccinated, cf. Pls.’ MTD Opp’n, ECF No. 

72, at 9 (claiming Defendants “permit[] harm to Plaintiffs’ service reputation”), those fears are too 

speculative and inchoate to sustain Plaintiffs’ claim for relief. See Danos v. Jones, 652 F.3d 577, 

584 (5th Cir. 2011) (“[W]here reputational injury is the lingering effect of an otherwise moot aspect 

of a lawsuit, no meaningful relief is possible and the injury cannot satisfy the requirements of 

Article III.” (quotation omitted)). Indeed, Plaintiffs’ reputational concerns are belied by the record. 

See, e.g., Officer Evaluation Report, ECF No. 73, at 9 (recommending Plaintiff Stone for 

promotion); Memorandum to Michael C. Marcenelle, LTJG re Special Selection Board 

Determination ¶¶ 3–4, App’x 021 (providing path to promotion for Plaintiff Marcenelle); 

ALCGOFF 042/23 ¶ 9, App’x 017 (stating that the “opportunity of selection” is 95 percent). Their

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bare desire for “a court order specifically recognizing the unlawful treatment of religious

objections in the Coast Guard,” Pls.’ MTD Opp’n, ECF No. 72, at 11, is a blatant and improper

invitation to have this Court “declare, for the government of future cases, principles or rules of law 

which cannot affect the result as to the thing in issue in the case before.” California v. San Pablo 

& Tulare R. Co., 149 U.S. 308, 314 (1893).

Similarly, for reasons Defendants have already stated in their briefs, none of the other

exceptions to mootness save Plaintiffs’request for preliminary-injunctive relief from mootness. In 

particular, just as the Fifth Circuit concluded in U.S. Navy SEALs, the voluntary-cessation 

exception has no application here. See 2023 WL 4362355, at *7. For one thing, as Defendants 

have explained, their rescission of the challenged vaccination requirements was not voluntary.

4

 

But through their actions, Defendants have made clear that they accept the NDAA’s directive and 

are committed to implementing it fully and fairly. Thus, there can be no reasonable expectation 

that Defendants will subject Plaintiffs to the same allegedly unlawful policy in the future. See 

Already, 568 U.S. at 92; U.S. Navy SEALs, 2023 WL 4362355, at *7. 

Nor can Plaintiffs invoke the mootness exception for cases capable of repetition yet 

evading review. Again, Plaintiffs offer no meaningful evidence to suggest that Defendants intend 

to require them to become vaccinated against COVID-19. And the record belies Plaintiffs’ 

insistence that they had insufficient time to sue and obtain relief in this case. Plaintiffs allege that 

4 Plaintiffs appear to accept that the Secretary of Defense’s rescission was involuntary, but 

they strenuously contest the voluntariness of the Coast Guard Defendants’ actions. See, e.g., Pls.’ 

MTD Opp’n, ECF No. 70, at 1, 16–17. But prior to rescission, Plaintiffs repeatedly characterized 

the Coast Guard’s actions as being in lockstep with the broader military. See Pls.’ Prelim. Inj. Br., 

ECF No. 5, at 2 (claiming that “[t]he military branches all operate under the same general policy 

of discrimination against religious service members”). Their protestations now that the Coast 

Guard somehow stands apart from the rest of the military ring hollow. Why else, then, was it 

necessary to name the Secretary of Defense as a Defendant?

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their religious accommodation requests were denied in May 2022, yet they waited four months to 

file this suit. See Compl. ¶ 5. And once Plaintiffs filed it on September 16, their preliminary 

injunction and class certification motions were fully briefed less than a month later. See Pls.’ 

Prelim. Inj. Reply Br., ECF No. 38 (Oct. 14, 2022). Any suggestion that this case could not be 

litigated in the time available ignores Plaintiffs’ own delay in bringing suit. 

In sum, because the COVID-19 vaccination requirement that Plaintiffs challenged no 

longer exists, and because they face no credible risk of further enforcement of that requirement in 

light of new policies formally prohibiting such enforcement, Plaintiffs’ motion for a preliminary 

injunction against the COVID-19 vaccination requirement has become moot. 

3. For all the reasons Defendants have explained supra and elsewhere in the record, it 

should make no difference to the Court’s mootness analysis whether Plaintiffs’ complaint requests

relief beyond an injunction against the COVID-19 vaccination requirement; this case is moot 

because there is no meaningful relief—injunctive or otherwise—that this Court can provide to 

Plaintiffs from that now-defunct requirement.

As they concede, Plaintiffs requested only prospective forms of relief in this case, namely: 

(1) declarations that Defendants’ COVID-19 vaccination requirement was unlawful under RFRA, 

the First Amendment, and the APA; (2) injunctions prohibiting Defendants from enforcing their 

COVID-19 vaccination requirement or otherwise “taking any adverse action against [Plaintiffs or 

putative class members] on the basis of this lawsuit or of [any related] request for religious 

accommodation” from the vaccination requirement, and (3) relief incidental to any such 

declaratory or injunctive relief. See Compl. at 66 (prayer for relief).5

 The third category of relief 

5 Plaintiffs also sought “reasonable attorneys’ fees, costs, and other costs and 

disbursements” and “all other and further relief to which Plaintiffs may be entitled.” Compl. at 

66. But requests for costs and fees cannot sustain an otherwise moot case. See Fed. R. Civ. P. 

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17

is, by its nature, wholly derivative of the other two—if declaratory and injunctive relief are 

unavailable, then Plaintiffs cannot obtain other incidental relief. And as discussed above, because 

there is no longer a COVID-19 vaccination requirement to enjoin, Plaintiffs’ request for injunctive 

relief as to that requirement is moot. 

So too is Plaintiffs’ request for declaratory relief. “[A]lthough a plaintiff seeking damages 

may avoid mootness even if injunctive relief is no longer available to him or her, the plaintiff ‘must 

demonstrate either continuing harm or a real and immediate threat of repeated injury in the future,’

when merely pursuing declaratory relief.” Manzo-Hernandez v. Saucedo, No. 21-40034, 2021 WL 

5627068, at *3 (5th Cir. Nov. 30, 2021) (quoting Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003)). 

For all the reasons discussed supra, there is no such continuing harm or threat of harm here. 

Pursuant to formal policies, Defendants have ordered that any Plaintiff with an adverse action in 

his file attributable to that Plaintiff’s noncompliance with the COVID-19 vaccination requirement 

shall have that action removed from his personnel file. Pursuant to yet other policies, Plaintiffs 

who missed training and advancement opportunities will no longer be disqualified owing to their 

vaccination status. And going forward, no plaintiff will be required to receive the COVID-19 

vaccine under the now-rescinded August 2021 policy or be disciplined for declining it. Plaintiffs 

have therefore received all the relief for which they could have hoped in their suit. As a result, 

there no longer remains a live case or controversy under Article III.

56(d) (request for costs and fees are to be filed after judgment). And Plaintiffs cannot use a general 

prayer for relief to “extract late in the day” a claim for relief “solely to avoid otherwise certain 

mootness.” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 71 (1997); cf. Herndon v. Upton, 985 

F.3d 443, 449 (5th Cir. 2021) (Oldham, J., concurring) (noting that “mootness is a function of a 

party’s requested relief—not the theoretical possibility that a party could request or receive 

something”).

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In maintaining otherwise, Plaintiffs’ post-rescission theory of injury boils down to the 

assertion that their careers will be impeded by Defendants’ past imposition of the COVID-19 

vaccination requirement, either because Plaintiffs missed certain training, credentialing, or 

advancement opportunities they could not pursue while the vaccination requirement was in effect

or because, absent a judicial order condemning Defendants’ policy, their military superiors will 

view them in a negative light for having requested religious exemptions from the vaccination 

requirement. For redress, Plaintiffs invoke their complaint’s request for an injunction against 

“adverse action . . . on the basis of this lawsuit or of Plaintiffs’ or any member’s request for 

religious accommodation related to the Mandates,” and they urge this Court to, in effect, transform 

itself into an Article III human-resources office, wielding the extraordinary hammer of an 

injunction (against a component of the Armed Forces, no less) to quash such nuisances as stray 

references to vaccination status in personnel files, redline evaluations by military commanders’ 

that Plaintiffs deem insufficiently glowing, and dispense new commissions for military officers. 

As Defendants have explained, relief of this sort is not encompassed within the complaint. Indeed, 

nothing about an order finding Defendants’ COVID-19 vaccination requirement invalid and 

enjoining its application to Plaintiffs would directly redress Plaintiffs’ varied desires to bolster 

evaluations, update personnel files, and promote into new officer grades. 

Even if that kind of relief were encompassed within Plaintiff’s complaint, it would remain 

unavailable—Plaintiffs cannot sustain their challenge with requests that are not in the Court’s 

power to grant. Plaintiffs identify no concrete, nonspeculative harms flowing from their various 

paperwork injuries, and they cannot request an otherwise advisory opinion simply to persuade 

others as to the rightness of their position in this litigation. Nor is it within the power of the Court

to dispense promotions and rewrite performance assessments on behalf of military commanders. 

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See, e.g., Orloff v. Willoughby, 345 U.S. 83, 92 (1953) (“Whether Orloff deserves appointment is 

not for judges to say and it would be idle, or worse, to remand this case to the lower courts on any 

question concerning his claim to a commission.”); see also Austin v. Navy SEALs 1-26, 142 S. Ct. 

1301, 1302 (2022) (Kavanaugh, J., concurring) (“As the Court has long emphasized, . . . the 

‘complex, subtle, and professional decisions as to the composition, training, equipping, and control 

of a military force are essentially professional military judgments.” (quoting Gilligan v. Morgan, 

413 U.S. 1, 10 (1973))). And a declaratory judgment opining on the validity of a former 

vaccination policy would have no practical effect on Plaintiffs—it would not require them to be 

promoted to new positions; it would not require them to be placed into their desired training 

courses; it would not require Defendants to clear Plaintiffs’ personnel files of unrelated 

administrative remarks; and it would not affect Plaintiffs’ professional reputations. It would not 

even require the granting of religious accommodations from the prior COVID-19 vaccination 

policy, as that policy no longer exists and there can be no exemptions from a nullity. To the extent 

Plaintiffs would seek to raise claims of injury from Defendants’ post-recission actions—such as 

the potential denial of a promotion to Plaintiff Marcenelle by his Special Selection Board—those 

claims must be pursued by filing a new case, based on the new facts relevant to those claims, rather 

than attempting to fit them into a challenge to a now-defunct policy. 

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Dated: July 13, 2023 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General 

ALEXANDER K. HAAS

Branch Director

JOSHUA E. GARDNER

Special Counsel

/s/ Cody T. Knapp 

CODY T. KNAPP (NY Bar #5715438)

Trial Attorney

United States Department of Justice

Civil Division

Federal Programs Branch

1100 L Street NW

Washington, D.C. 20530

Tel.: (202) 532-5663

Fax: (202) 616-8460

Email: cody.t.knapp@usdoj.gov

Counsel for Defendants

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