1 

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. ) 

PLAINTIFFS’ NOTICE OF NEW GUIDANCE AND SUPPLEMENTAL REPORT 

TO COURT FOLLOWING RESCISSION OF THE COVID-19 VACCINE MANDATE 

Plaintiffs hereby give notice of new voluntary guidance issued by the Coast Guard on 

January 25 and 26, 2023 (attached hereto as Exhibits 1-3), related to its January 11, 2023 

vaccine-mandate rescission order (ECF No. 64-1), and submit the following supplemental report 

to the Court related to the new guidance. 

The guidance does not remedy ongoing harms to the Plaintiffs. Absent the Coast Guard’s 

assurance—willingly or under Court order—that the Coast Guard will take steps to remedy 

concrete, ongoing harms resulting from the now-rescinded vaccine mandate, this case should 

proceed and the Court should grant preliminary injunctive relief. 

A. The new guidance rescinds certain restrictions but the Coast Guard continues to 

refuse to recognize many ongoing harms and available remedies. 

It is a bedrock rule that an action for equitable relief remains live and in need of judicial 

resolution so long as any voluntary intervening relief by the defendant has not “completely and 

irrevocably eradicated the effects of the alleged [underlying] violation.” Cnty. of Los Angeles v. 

Davis, 440 U.S. 625, 631 (1979). 

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The Coast Guard’s voluntary rescission of the vaccine mandate and voluntary rescission 

of additional sub-restrictions on unvaccinated service members with respect to permanentchange-of-station orders, training and education courses, and command positions—prospectively 

only—are positive developments. ECF No. 64-1; Exhibit 1 (ALCGPSC 012/231

); Exhibit 2 

(ALCGOFF 005/23); and Exhibit 3 (ALCGENL 013/23). But the Coast Guard’s guidance, and 

inaction otherwise, evidence a refusal to remedy, or even credibly to offer assurances that it will 

consider remedying, all ongoing adverse actions. 

The Coast Guard continues to punish religious objectors for prior noncompliance and to 

pressure them to betray their religious beliefs to avoid future adverse actions. All of these 

adverse actions are based on the now-rescinded mandate itself—and particularly on the Coast 

Guard’s previous categorical denial of all religious accommodation requests therefrom, in blatant 

violation of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, et seq., and the 

Free Exercise Clause of the First Amendment. The Coast Guard continues to deny critical, 

urgent, time-sensitive relief from ongoing adverse effects and refuses to provide adequate 

assurances that it will consider these requests for relief. 

For example, in 2022, the Coast Guard refused to give Plaintiff Marcenelle notice of a 

promotion to Lieutenant, with an effective date of April 29, 2023, solely due to his vaccination 

status or religious accommodation request (RAR). ECF No. 64 at 3; ECF No. 6-2 at 70-71, ¶¶ 

27-33. The matter is justiciable under RFRA.2

 In any event, the promotion at issue is one that

currently would and should occur in the future, on April 29, 2023, and therefore would not be 

1

 See also Exhibit 4 (ALCGPSC 016/22 and ALCGPSC 104/21), referred to in Exhibit 1 as 

“canceled” measures. 

2

 Missed training and educational opportunities are likewise justiciable. See also footnotes 4 and 

6 infra.

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retroactive. This wrongfully denied promotion is a result of the Coast Guard’s violation of RFRA 

and the First Amendment, is easily remedied, and should be remedied, now, before April 29.3

 

As another example, the Coast Guard has thus far refused to expunge negative 

disciplinary records based on noncompliance with the vaccine mandate—even though all of the 

other service branches (which unlike the Coast Guard are under the Department of Defense) 

must do so. ECF No. 64-2 at 1. Since December 2022, the Coast Guard has claimed that it 

“intends” to align itself with the other branches (ECF No. 53 at 2), but it has not yet and has 

offered no indication of when it will. Plaintiffs need not exhaust administrative remedies here.4

The other service branches must expunge religious objectors’ negative records, by express order 

of Defendant Secretary Austin, and with no required action by affected service members. ECF 

No. 64-2 at 1. 

As yet another example, the Coast Guard’s new guidance states that “refusal of the 

COVID-19 vaccination alone does not require the withholding of advancement for enlisted 

members” in certain circumstances. Exhibit 3 at 2 (emphasis added). This 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.5

3 Moreover, Plaintiff Marcenelle may ultimately be discharged from the Coast Guard if he is not 

promoted (ECF No. 6-2 at 71, ¶ 33)—in direct violation of the will of Congress, and an adverse 

effect that would not occur should he secure his originally scheduled promotion set to take effect 

this April. At Plaintiff Marcenelle’s level of service, selection to Lieutenant was essentially 

guaranteed unless he had committed a serious offense such as DUI or sexual assault (which he 

had not and has not). By continuing to deny Plaintiff Marcenelle this April 2023 promotion, the 

Coast Guard is unlawfully treating his religious objection as a serious offense.

4 See, e.g., ECF No. 38 at 8 (discussing why the categorical denial of RARs, and the ongoing 

harms that continue because of those denials, violate RFRA and the First Amendment and can be 

remedied in the first instance in federal court); Doster v. Kendall, 54 F.4th 398, 437-38 (6th Cir. 

2022) (same). Class certification was and is appropriate. Id. 5

 Moreover, the Coast Guard’s policies of denying substantial bonuses to unvaccinated service 

members in various positions remain in place. See, e.g., ALCOAST 402/22, 403/22, 404/22, 

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Indeed, the Coast Guard expressly claims it has the right to continue withholding promotions to 

unvaccinated personnel who had already been selected for promotion.6 Id. at 2. This means 

religiously opposed unvaccinated service members continue to face substantial pressure to 

obtain a COVID-19 vaccine against their religious beliefs—an ongoing irreparable harm 

triggering an urgent need for injunctive relief under RFRA and the First Amendment. See also 

Oral Argument Recording, Navy Seals 1-26 v. Austin, No. 22-10077, at 27:55-29:35 (5th Cir. 

Feb. 6, 2023) (Judge Kyle Duncan asking plaintiffs’ counsel whether the mandate’s rescission 

makes the exemption process worse, and observing that “it went from a 50-step process to a 

zero-step process”).7

Thus the Coast Guard’s own actions (and inactions) show it is not willing to consider in 

good faith these particular or any other requests for full, concrete relief from the adverse 

consequences of its prior (and ongoing) illegal actions, absent firm commitment from the Coast 

Guard or a Court order. In its broad discretion, the Court can enjoin and remedy these adverse 

actions. See, e.g., Swann v. Charlotte-Mecklenburg Bd. Of Ed., 402 U.S. 1 (1971) (“Once a right 

and a violation have been shown, the scope of a district court’s equitable powers to remedy past 

wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”); Smith v. Young 

Men’s Christian Ass’n of Montgomery, Inc., 462 F.2d 634, 649 (5th Cir. 1972) (“A court of 

405/22, 406/22, 407/22, 409/22, 410/22, and 411/22. Exhibit 5. Neither the mandate-rescission 

order nor the guidance rescinds these policies. 

6

 Plaintiffs assume the Coast Guard may sometime align itself with the Department of Defense’s 

rescission order (ECF No. 64-2) in claiming the right to consider vaccination status in making 

deployment, assignment, or operational decisions in defiance of the National Defense 

Authorization Act, which requires rescission of the mandate without qualification. Congress has 

the constitutional authority to regulate the military. See U.S. Const. Art. I, § 8 (Congress is 

empowered to “make Rules for the Government and Regulation of the land and naval Forces”). 

See also, e.g., Doster, 54 F.4th at 413 (RFRA applies to the military).

7 https://www.ca5.uscourts.gov/OralArgRecordings/22/22-10077_2-6-2023.mp3. 

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equity has unquestioned wide powers to provide effective means for enforcement” of civil rights 

laws “and to eradicate the effects of past discrimination.”). 

B. This case is not moot. 

To the extent the Coast Guard contends that the case is moot in light of the voluntary 

rescission of the mandate and the voluntary issuance of some guidance rescinding various subrestrictions that flowed from the mandate, it is mistaken. As previously alluded to, “[i]n order for 

voluntary cessation of allegedly illegal conduct to render a case moot, there must be no 

reasonable expectation that the alleged violation will recur, and intervening events must have 

completely eradicated the effects of the conduct.” City of Waco v. E.P.A., 620 F.2d 84, 87 (5th 

Cir. 1980); see also Fantasy Ranch Inc. v. City of Arlington, Tex., 459 F.3d 546, 564 (5th Cir. 

2006) (same), abrogated on other grounds by Reagan Nat’l Advert. of Austin, Inc. v. City of 

Austin, 972 F.3d 696, 704 (5th Cir. 2020), rev’d and remanded sub nom. City of Austin, Texas v. 

Reagan Nat’l Advert. of Austin, LLC, 212 L. Ed. 2d 418 (2022). 

 But the Coast Guard to date refuses to commit to actually remedying the harmful effects 

of its prior illegal actions. Fundamentally, much of the irreparable harm underlying Plaintiffs’ 

pending motions for class-wide relief (ECF No. 4) has not dissipated. See, e.g., Section A 

above.8

 The rescission order and the guidance by no means make Plaintiffs whole in equity, nor 

do they provide adequate protection to Plaintiffs or to the putative class members prospectively. 

Moreover, neither the order nor the guidance commits the Coast Guard to consider actually 

                                                            

8

 To be clear, preliminary injunction relief against the adverse actions identified in Section A 

above or in Plaintiffs’ January 25 Report (ECF No. 64) would not “completely eradicate” the 

effects of the Coast Guard’s misconduct but such relief would be a reasonable and necessary step 

in addressing at least those adverse actions. As noted previously (ECF No. 64 at 5), Plaintiffs 

will respond in due course to any motion to dismiss the case as “moot” or to stay the case. 

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remedying the harms identified to the Plaintiffs, nor the similar harms to the putative class, either 

by way of agreement with Plaintiffs or by further guidance. Id. Therefore, the case is not moot. 

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Dated: February 7, 2023 

Respectfully submitted, 

/s/ Adam S. Hochschild 

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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