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, )

) 

Plaintiffs, )

v. )

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

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’ MEMORANDUM IN OPPOSITION

TO DEFENDANTS’ MOTION TO DISMISS

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 1 of 33 PageID 1492
i

TABLE OF CONTENTS

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

II. BACKGROUND ................................................................................................................ 2

III. LEGAL STANDARD......................................................................................................... 8

IV. ARGUMENT...................................................................................................................... 8

A. Plaintiffs seek concrete relief that the Coast Guard has not provided. ........................... 8

B. Plaintiffs seek relief in accordance with their Complaint, the law, and the rules......... 12

C. The claims for injunctive relief are justiciable and not subject to Mindes exhaustion. 13

D. The voluntary-cessation doctrine saves the case from mootness.................................. 16

i. The Coast Guard falsely claims its cessation was not voluntary.......................17

ii. It is not “absolutely clear” the wrongful conduct could not reasonably be expected

to recur.........................................................................................17

iii. Even with “some solicitude,” the Coast Guard cannot meet its burden...............19

iv. The Coast Guard’s cases are irrelevant...................................................21

E. The dispute is capable of repetition while evading review........................................... 23

V. CONCLUSION................................................................................................................. 24

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 2 of 33 PageID 1493
ii

TABLE OF AUTHORITIES

Cases

Air Force Major v. Austin, 

No. 22-cv-756 (N.D. Tex.)........................................................................................................ 23

Already, LLC v. Nike, Inc., 

568 U.S. 85 (2013).................................................................................................................... 16

Alvarado v. Austin, 

No. 22-cv-876 (E.D. Va.).......................................................................................................... 23

Am. Bar Ass’n v. FTC, 

636 F.3d 641 (D.C. Cir. 2011).................................................................................................. 21

Amawi v. Paxton, 

956 F.3d 816 (5th Cir. 2020) .................................................................................................... 21

Amerisure Ins. Co. v. Thermacor Process, Inc., 

No. 4:20-CV-01089-P, 2021 WL 2695143 (N.D. Tex. Apr. 6, 2021)...................... 8, 11, 16, 17

Austin v. Navy SEALS 1-26, 

142 S. Ct. 1301 (2022).............................................................................................................. 14

Cath. Leadership Coal. of Texas v. Reisman, 

764 F.3d 409 (5th Cir. 2014) .................................................................................................... 23

Chafin v. Chafin, 

568 U.S. 165 (2013).................................................................................................................. 10

Chancy v. Biden, 

No. 22-cv-110 (N.D. Fla.)......................................................................................................... 23

Church v. Biden, 

No. 21-cv-2815 (D.D.C.).......................................................................................................... 23

City of Mesquite v. Aladdin’s Castle, Inc., 

455 U.S. 283 (1982)............................................................................................................ 16, 19

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 3 of 33 PageID 1494
iii

Clements v. Austin, 

No. 22-cv-2069 (D.S.C.)........................................................................................................... 23

Connell v. Shoemaker,

555 F.2d 483 (5th Cir. 1977) .......................................................................................... 8, 10, 11

Dailey v. Vought Aircraft Co., 

141 F.3d 224 (5th Cir. 1998) ................................................................................................ 8, 10

DeOtte v. Nevada, 

20 F.4th 1055 (5th Cir. 2021) ................................................................................................... 21

Doster v. Kendall, 

No. 1:22-CV-84, 2022 WL 2974733 (S.D. Ohio July 27, 2022), aff’d, 54 F.4th 398 (6th Cir. 

2022) ......................................................................................................................................... 23

El Paso Elec. Co. v. FERC, 

667 F.2d 462 (5th Cir. 1982) .................................................................................................... 14

Fantasy Ranch Inc. v. City of Arlington, 

459 F.3d 546 (5th Cir. 2006) .................................................................................................... 21

Franciscan All., Inc. v. Becerra, 

47 F.4th 368 (5th Cir. 2022) ............................................................................................... 13, 19

Freedom From Religion Found., Inc. v. Abbott, 

58 F.4th 824 (5th Cir. 2023) ............................................................................................... 11, 22

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 

528 U.S. 167 (2000).................................................................................................................. 17

Gilligan v. Morgan, 

413 U.S. 1 (1973)...................................................................................................................... 14

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 

546 U.S. 418 (2006).................................................................................................................. 18

Guedes v. ATF, 

920 F.3d 1 (D.C. Cir. 2019)...................................................................................................... 21

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 4 of 33 PageID 1495
iv

Hodges v. Callaway, 

499 F.2d 417 (5th Cir. 1974) .................................................................................................... 14

J.T. v. District of Columbia, 

983 F.3d 516 (D.C. Cir. 2020).................................................................................................. 22

Johnson v. Mississippi, 

586 F.2d 387 (5th Cir. 1978) .................................................................................................... 21

Klayman v. Obama, 

759 F. App’x 1 (D.C. Cir. 2019)............................................................................................... 21

Log Cabin Republicans v. U.S., 

685 F.3d 1162 (9th Cir. 2011) .................................................................................................. 21

Mindes v. Seaman, 

453 F.2d 197 (5th Cir. 1971) .................................................................................................... 13

Navy SEALs 1-26 v. Biden, 

27 F.4th 336 (5th Cir. 2022) ..................................................................................................... 15

Navy SEALs 1-26 v. Biden, 

Nos. 22-10077, 22-10534 ..................................................................................................... 2, 24

Oklahoma v. Biden, 

No. 21-cv-1136 (W.D. Okla.)................................................................................................... 23

Orloff v. Willoughby, 

345 U.S. 83 (1953).................................................................................................................... 14

Pederson v. Louisiana State Univ., 

213 F.3d 858 (5th Cir. 2000) .................................................................................................... 18

Pierce v. City of New York, 

No. 16 CIV. 5703 (BMC), 2017 WL 10188217 (E.D.N.Y. June 9, 2017)................................. 9

Portillo v. Cunningham, 

872 F.3d 728 (5th Cir. 2017) .................................................................................................... 13

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 5 of 33 PageID 1496
v

Pulphus v. Ayers, 

909 F.3d 1148 (D.C. Cir. 2018)................................................................................................ 14

Ramming v. United States, 

281 F.3d 158 (5th Cir. 2001) ...................................................................................................... 8

Schelske v. Austin, 

No. 6:22-CV-049-H, 2022 WL 17835506 (N.D. Tex. Dec. 21, 2022)..................................... 15

Singh v. Berger, 

56 F.4th 88 (D.C. Cir. 2022)..................................................................................................... 15

Smith v. Young Men’s Christian Ass’n of Montgomery, Inc., 

462 F.2d 634 (5th Cir. 1972) .................................................................................................... 12

Snider v. Cain, 

No. 4:20-CV-00670-P, 2020 WL 6262192 (N.D. Tex. Oct. 23, 2020).................................... 22

Sossamon v. Lone Star State of Texas, 

560 F.3d 316 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon v. Texas, 563 U.S. 

277 (2011)................................................................................................................................. 22

Speech First, Inc. v. Fenves, 

979 F.3d 319 (5th Cir. 2020) ................................................................................................ 8, 19

Spell v. Edwards, 

962 F.3d 175 (5th Cir. 2020) .................................................................................................... 22

Stauffer v. Gearheart, 

741 F.3d 574 (5th Cir. 2014) .................................................................................................... 22

Swann v. Charlotte-Mecklenburg Bd. of Ed., 

402 U.S. 1 (1971)...................................................................................................................... 12

Texas v. Biden, 

20 F.4th 928 (5th Cir. 2021), rev’d on other grounds, 142 S. Ct. 2528 (2022)........................ 19

Trinity Lutheran Church of Columbia, Inc. v. Comer, 

137 S. Ct. 2012 (2017).............................................................................................................. 19

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 6 of 33 PageID 1497
vi

Tucker v. Gaddis, 

40 F.4th 289 (5th Cir. 2022) ......................................................................................... 14, 17, 19

Yarls v. Bunton, 

905 F.3d 905 (5th Cir. 2018) .................................................................................................... 22

Statutes

42 U.S.C. § 2000bb–1(c) .............................................................................................................. 12

James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (NDAA),

Pub. L. No. 117-263, 136 Stat. 2395 (2022) ..............................................................................3

Other Authorities

“Cumulative Analysis of Post-Authorization Adverse Event Reports of PF-07302048 

(BNT162B2) Received Through 28-Feb-2021,” 

https://www.datascienceassn.org/content/pfizer-adverse-events-report................................... 21

Jon Brown, “Thousands of unvaccinated service members could still be booted over rescinded 

COVID-19 policy,” Yahoo!life, March 9, 2023, https://www.yahoo.com/lifestyle/thousandsunvaccinated-members-could-still-100002872.html ................................................................ 21

S.V. Subramanian, A. Kumar, “Increases in COVID-19 are unrelated to levels of vaccination 

across 68 countries and 2947 counties in the United States,” Eur. J. Epidemiol., Dec. 2021, 

https://pubmed.ncbi.nlm.nih.gov/34591202/ ............................................................................ 21

The Lancet’s “Past SARS-CoV-2 infection protection against re-infection: a systematic review 

and meta-analysis,” Feb. 16, 2023, 

https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(22)02465-5/fulltext ......... 21

Rules

Fed. R. Civ. P. 12(b)(1)................................................................................................................... 7

Fed. R. Civ. P. 23(b)(2)................................................................................................................. 12

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 7 of 33 PageID 1498
1

I. INTRODUCTION

This case is not moot, and Plaintiffs still urgently need relief. Unlike the other military 

branches’ rescission, the Coast Guard’s rescission of the vaccine mandate was voluntary, not 

statutorily required. In addition, the Coast Guard continues to maintain and threaten adverse 

actions against Plaintiffs for objecting to the vaccine when the mandate was in place, causing 

ongoing irreparable harm. For example, the Coast Guard:

• Still refuses to grant Plaintiff Marcenelle a promotion or even a special promotion 

board for the promotion he is entitled to that would be effective April 29, 2023 

but for his vaccination status.

• Placed injurious negative remarks (CG-3307s) in Plaintiffs’ records and, to the 

extent it has now removed them, replaced them with other injurious remarks 

referencing noncompliance with the mandate. 

• Permits ongoing harm to Plaintiffs’ service reputation based on religious beliefs 

and vaccination status, as evidenced, for example, by downgraded evaluations, 

including Plaintiff Stone’s.

Plaintiffs seek and have an urgent need for prospective relief from such adverse actions.

Even if the adverse actions had ceased, the voluntary-cessation doctrine saves this case 

from mootness. The Coast Guard falsely claims that Congress “required” it to rescind the 

mandate. To the contrary, the Coast Guard’s rescission was entirely voluntary. As such, the 

Coast Guard does not and cannot meet its formidable burden of showing that subsequent events 

make it absolutely clear that its wrongful behavior could not reasonably be expected to recur. 

The Coast Guard continues to maintain the mandate was “lawful” and expressly reserves the 

right to reinstitute it. In fact it can still consider vaccination status as a factor, even a significant 

factor, in personnel decisions, and it still requires vaccination under certain circumstances 

applicable to at least one of the Plaintiffs. Further, the dispute is capable of repetition while 

evading review.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 8 of 33 PageID 1499
2

The Court should therefore deny the Coast Guard’s motion to dismiss.1

II. BACKGROUND

In August 2021, the Coast Guard instituted its COVID-19 vaccine mandate. ECF No. 6-1 

at 58-59. The Coast Guard claimed to permit religious accommodation requests (RARs) but 

denied all of them, except for a few requested by service members already slated for separation. 

See ECF No. 5 at 3-4. Meanwhile the Coast Guard granted many secular accommodation 

requests. Id. The Coast Guard’s process discriminated against religious service members in 

violation of the Religious Freedom Restoration Act (RFRA) and the First Amendment. ECF Nos. 

1, 4, 5, & 38. The Coast Guard’s actions also violated the Administrative Procedure Act. ECF 

No. 1 at 63-65.

In May 2022, the Coast Guard issued the inevitable final denials of Plaintiffs’ RARs. See

ECF No. 6-1 at 43; ECF 6-2 at 15; ECF 6-3 at 28. The Coast Guard reprimanded Plaintiffs for 

supposed failure to comply with lawful orders and declared them subject to punishment under 

the Uniform Code of Military Justice (UCMJ), as reflected in negative remarks, CG-3307s, that 

the Coast Guard placed in their service records. See ECF No. 6-1 at 50 (CG-3307 issued to 

Plaintiff Stone), ECF No. 6-2 at 17 (CG-3307 issued to Plaintiff Jackson), and ECF No. 6-3 at 29 

(CG-3307 issued to Plaintiff Marcenelle). In September 2022, Plaintiffs filed this case and, at the 

same time, motions for class certification, appointment of class counsel, and a class-wide 

1 The Fifth Circuit is currently considering the Navy’s request to vacate preliminary injunctions 

and dismiss appeals as moot in a related case, Navy SEALs 1-26 v. Biden, Nos. 22-10077, 22-

10534. While that appeal involves the Navy, which unlike the Coast Guard was required to 

rescind the applicable mandate under the NDAA, and involves only preliminary injunctive relief, 

the Fifth Circuit’s forthcoming ruling may be relevant to the present motion to dismiss. To be 

clear, though, Plaintiffs urgently need preliminary injunctive relief against the ongoing adverse 

consequences of the now-rescinded mandate, including Plaintiff Marcenelle who has a 

particularly time-sensitive (before April 29, 2023) need, and respectfully ask the Court to issue 

such relief soon, regardless of the status of the appeal in the Navy case.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 9 of 33 PageID 1500
3

preliminary injunction. ECF Nos. 1 & 4. The motions were fully briefed as of October 2022. See

ECF No. 38.

On December 15, 2022, Congress passed the 2023 National Defense Authorization Act 

(NDAA). See ECF No. 53. The NDAA provides that the Secretary of Defense shall rescind the 

Department of Defense (DoD) vaccine mandate. Id. The NDAA does not apply to the Coast 

Guard, which is not under the DoD. Id.; ECF No. 50 at 2 n.1; ECF No. 52 at 2; ECF No. 55. 

Rather, the Coast Guard is under the authority of Defendant Mayorkas’s Department of 

Homeland Security. Id. On December 23, 2022, the President signed the NDAA into law, giving 

the DoD 30 days, until January 22, 2023, to rescind the DoD vaccine mandate. See ECF No. 53; 

ECF No. 55 at 3 n.1.

On January 9, 2023, the Coast Guard voluntarily rescinded its mandate, asserting that the 

vaccine mandates were nonetheless “lawful general orders.” Appendix filed herewith (“Appx.”) 

254. Later the same day, the Coast Guard withdrew its rescission. Appx. 255.

On January 10, the DoD rescinded its mandate. ECF No. 64-2, Appx. 256. The DoD’s 

rescission order stated that its “Military Departments will update the records... to remove any 

adverse actions solely associated with denials of such requests, including letters of reprimand.” 

Id.

On January 11, the Coast Guard (again) rescinded its mandate, asserting (again) that the 

vaccine mandates were “lawful” orders. ECF No. 64-1, Appx at 258. Neither Coast Guard 

rescission order (dated January 9 and January 11) included language similar to the DoD’s 

January 10 rescission order, which directed removal of adverse actions. Appx. 256.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 10 of 33 PageID 1501
4

On January 18, Magistrate Judge Ray conducted court-ordered mediation in this case. 

Plaintiffs participated in good faith, but mediation did not lead to settlement.2

On January 25, 2023, Plaintiffs filed a notice of rescissions of the DoD and Coast Guard 

mandates. ECF No. 64.3In this notice, Plaintiffs identified and detailed various forms of relief 

that the Coast Guard had thus far failed to provide and explained how the DoD’s rescission order 

was not applicable to the Coast Guard and provided more relief to DoD service members than 

the Coast Guard’s rescission order did to Coast Guard service members. Id.4

Over the course of several weeks after they issued their separate rescission orders, the 

DoD and Coast Guard separately issued various guidance memoranda; the Coast Guard’s 

guidance addressed some service members’ concerns (e.g., halting of separation proceedings) but 

far from all of the still-needed relief Plaintiffs had identified and detailed: 

• January 25, 2023: The Coast Guard rescinded restrictions on assignments, 

training, certain promotions, and command, and halted separation proceedings of 

enlisted members. ECF Nos. 67-1, 67-3, 67-4, Appx. 259, 261-267.5 But the 

Coast Guard implicitly asserted the continuing right to consider vaccination status 

2 The Coast Guard falsely suggests that Plaintiffs went back on an agreement regarding a joint 

motion to stay the proceedings. Def. Memo at 5. To the contrary, the parties never reached such 

an agreement; the Coast Guard refused to and continues to refuse to offer comprehensive, 

appropriate relief even to the three named Plaintiffs.

3 On February 7, 2023, Plaintiffs filed a notice of additional guidance the Coast Guard had 

issued. ECF No. 67. This notice again identified specific harms that remained unaddressed. See 

id. at 2-4.

4 On January 30, 2023, the Coast Guard filed a response Plaintiffs’ January 25 notice together 

with a request to stay the case. ECF No. 65. On February 3, 2023, the Court struck and unfiled 

the Coast Guard’s filing for failure to comply with local rules. ECF No. 66. The Coast Guard has 

not since filed a motion to stay (and if it did, Plaintiffs would oppose it).

5 Plaintiffs had already requested this specific relief in conversations with Defendants’ counsel 

on January 12, 2023. 

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 11 of 33 PageID 1502
5

as a factor, even a significant factor, in making personnel decisions. See ECF No. 

67 at 3. The Coast Guard does not dispute this. Def. Memo at 9-10.

• January 26, 2023: The Coast Guard halted separation boards for officers. ECF No. 

67-2, Appx. 260.

• February 4, 2023: The Coast Guard directed removal of vaccine-related CG3307s for all members sometime before the end of the year (“not later than 31 

Dec 2023”). ECF No. 68-4, Appx. 268.6

• February 24, 2023: The DoD removed deployment restrictions aside from foreign 

nation vaccination entry requirements, “absent establishment of a new 

immunization requirement.” Appx. 269. The Coast Guard has not issued 

comparable guidance.

• February 27, 2023: Apparently realizing that waiting until December 31 to 

remove CG-3307s (ECF No. 68-4) was manifestly indefensible, the Coast Guard 

stated that it now planned to remove certain CG-3307s by the end of March 

2023.7 ECF No. 71 at 12, Appx. 271 (“SUBJ: CORRECTING MILIITARY [sic] 

RECORDS (COVID-19)”).

None of these measures has addressed the fact that Plaintiffs remain subject to various 

adverse collateral consequences. For example, Plaintiff Jackson’s Coast Guard records still 

contain a CG-3307 documenting his intent to seek a religious accommodation. Jackson 3rd 

Suppl. Decl. at ¶5, Appx. 2. The CG-3307s have apparently been removed from the records for 

6 Plaintiffs had already notified the Court on January 25, 2023, of the Coast Guard’s failure to 

“expunge any and all records or findings...regarding COVID-19 vaccination.” ECF No. 64 at 2.

7 Plaintiffs had reminded the Court on February 7, 2023, that the Coast Guard still had not 

aligned itself with the DoD, which had been ordered by the Secretary of Defense on January 10, 

2023 to remove records of adverse actions. ECF No. 67 at 3.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 12 of 33 PageID 1503
6

Plaintiffs Stone and Marcenelle, but in place of the CG-3307s their records now include a 

memorandum from the Coast Guard’s Acting CG-1, Assistant Commandant for Human 

Resources, Donna Navarro, documenting without explanation that vaccine-related CG-3307s 

have been removed from their respective records. Stone 3rd Suppl. Decl. at ¶7, Appx. 6; 

Marcenelle 3rd Suppl. Decl. at ¶¶24-26, Appx. 14-14; Appx. 268. Additionally, the Coast Guard 

still tracks service members’ vaccination status, listing unvaccinated service members as “noncompliant (unvaccinated and no valid deferral listed),” in a system readily accessible to 

commanders and support staff. Stone 3rd Suppl. Decl. at ¶8, Appx. 6. Because the Coast Guard 

still insists that the vaccine mandate was a “lawful” order, and because vaccination status is a 

sensitive and divisive issue, both the CG-3307s and Navarro memorandum tarnish the service 

reputation of Plaintiffs as people who violated the UCMJ in the mind of anyone with access to 

career records—including commanders, boards, and even personnel specialists. See Declaration 

of Vice Admiral William Lee (Ret.) (explaining the role and lasting impact “service reputation” 

has on a Coast Guard career), Appx. 249-253. 

Relatedly, Plaintiff Stone has received a downgraded performance report due to the 

training restrictions the Coast Guard imposed to pressure unvaccinated service members, with 

lasting effects on his career. Stone 3rd Suppl. Decl. at ¶¶3-7, Appx. 5-6.

Further, the Coast Guard has not aligned itself with the DoD’s February 24 guidance. 

Therefore commanders in the Coast Guard, unlike the other service branches, can still prohibit 

deployment to certain countries based solely on vaccination status.

Additionally, Plaintiff Marcenelle was not selected for a nearly automatic promotion to 

Lieutenant solely due to his vaccination status. Marcenelle 3rd Suppl. Decl. at ¶¶3-7, Appx. 10-

11. The lost pay from the missed promotion will total nearly $2,000 per month, beginning less 

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 13 of 33 PageID 1504
7

than a month from now. Appx. 12. The missed promotion also greatly reduces his chances of 

promoting in the future. Appx. 14. Because the promotion would not be effective until April 29, 

2023, he could still be promoted on time, but the window for effective relief is rapidly closing. 

Appx. 12. Plaintiff Marcenelle requested a Special Selection Board (SSB) for the April 29 

promotion, but he reasonably believes that request is futile. Appx. at 13. Just this week, the Coast 

Guard informed him that the earliest he would receive a decision from an SSB (even assuming 

one is granted) would be several months after April 29. Appx. 13.

Similarly, Plaintiff Jackson was forced to miss a second promotion testing cycle because 

the Coast Guard provided just one week’s notice for him and similarly situated enlisted members 

to navigate a complex approval process normally requiring a month. Jackson 3rd Suppl. Decl. at 

¶¶7-11, Appx. 2-3. This places him two years behind his vaccinated peers in career opportunity.

And Plaintiffs and other unvaccinated service members are still subject to the 

requirement that they must quarantine if they contract COVID-19 such that they are not available 

to serve during the period of quarantine, while vaccinated service members are not subject to this 

requirement. Appx. 7-8. The Coast Guard has not rescinded this discriminatory policy and has 

given no indication that it will ever rescind it. Appx. 7-8. In fact, by requiring vaccination checks 

as part of a mandatory, annual safety assessment checklist, the Coast Guard still retains an 

enforcement mechanism for the mandate. Stone 3rd Suppl. Decl. at ¶11, Appx. 8.

On March 10, 2023, the Coast Guard filed the present motion to dismiss under Federal 

Rule of Civil Procedure 12(b)(1) (subject-matter jurisdiction), asserting that the case is moot. It 

is not, as discussed herein.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 14 of 33 PageID 1505
8

III. LEGAL STANDARD

“In assessing jurisdiction, the district court is to accept as true the allegations and facts set 

forth in the complaint, and a district court ‘is empowered to consider matters of fact which may 

be in dispute.’” Amerisure Ins. Co. v. Thermacor Process, Inc., No. 4:20-CV-01089-P, 2021 WL 

2695143, at *2 (N.D. Tex. Apr. 6, 2021) (quoting Ramming v. United States, 281 F.3d 158, 161 

(5th Cir. 2001)). “[A] motion to dismiss for lack of subject matter jurisdiction should be granted 

only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim 

that would entitle plaintiff to relief.” Id. As discussed below, the Coast Guard does not and 

cannot show that Plaintiffs cannot prove a set of facts in support of their claims that would entitle 

them to relief.

IV. ARGUMENT

A. Plaintiffs seek concrete relief that the Coast Guard has not provided.

The Coast Guard’s voluntary rescission and guidance do not come close to providing all 

the relief Plaintiffs seek. The distinction between the now-rescinded mandate, on the one hand, 

and ongoing adverse collateral circumstances, on the other, is in no sense “hazy,” as the Coast 

Guard characterizes it. Def. Memo at 8. The Coast Guard tries and fails to blur the line between 

the two. 

Plaintiffs remain subject to various adverse collateral consequences. See, e.g., Connell v. 

Shoemaker, 555 F.2d 483, 486-88 (5th Cir. 1977) (even after Army rescinded challenged policy, 

claim for relief from adverse collateral consequences is not mooted); Dailey v. Vought Aircraft 

Co., 141 F.3d 224, 227 (5th Cir. 1998) (“Even if the plaintiff’s primary injury has been resolved, 

the collateral consequences doctrine serves to prevent mootness when the violation in question 

may cause continuing harm and the court is capable of preventing such harm.”); see also Speech 

First, Inc. v. Fenves, 979 F.3d 319, 327-29 (5th Cir. 2020) (reversing district court’s dismissal of 

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 15 of 33 PageID 1506
9

injunctive and declaratory relief claims as moot; defendant public university rescinded or revised 

many, but not all, challenged policies). For example, while continuing to maintain the vaccine 

mandate was a “lawful” order, the Coast Guard:

• Claims an ongoing right to consider vaccination status as a significant factor in 

making personnel decisions.

• Still refuses to grant Plaintiff Marcenelle a promotion or even a special promotion 

board for a promotion he is entitled to, but for his vaccination status, that would 

be effective April 29, 2023.

• Placed injurious negative remarks (CG-3307s) in Plaintiffs’ records and, to the 

extent it has now removed them, replaced them with other injurious remarks 

referencing the CG-3307s themselves and noncompliance with the mandate 

(“Ref:... ALCOAST 012/23 [which voluntarily rescinded “the lawful general 

orders to become vaccinated”]... CG PSC [Personnel Service Center] shall 

remove all CG-3307... administrative remarks referencing the Coast Guard’s 

COVID-19 vaccine requirement....”).8

• Downgrades evaluations, including Plaintiff Stone’s, based on vaccination status. 

Specifically, his inability to attend the Intelligence Officer Course due to his RAR 

and vaccination status was a negative factor in his recent evaluation.

• Otherwise permits harm to Plaintiffs’ service reputation.

• Still subjects Plaintiffs and other unvaccinated service members to the 

discriminatory quarantine policy.

Plaintiffs accordingly continue to face pressure to violate their religious beliefs and continue to 

face ongoing harm, absent Court-ordered relief. 

The Coast Guard mistakenly claims any harms are hypothetical and unripe. Def. Memo at 

10. To the contrary, Plaintiffs’ harms are very real, and this Court can and should remedy them. 

8 By replacing CG-3307s—which (unlawfully and falsely) stated that Plaintiffs violated the 

UCMJ by failing to comply with the mandate—with the Navarro memorandum—which refers to 

the mandate, the CG-3307s, and the fact of removal of the CG-3307s without further 

explanation—the Coast Guard merely substitutes an express negative remark with an implicit 

one. Defendants’ alleged relief is thus entirely illusory. Cf. Pierce v. City of New York, No. 16 

CIV. 5703 (BMC), 2017 WL 10188217, at *2 (E.D.N.Y. June 9, 2017) (“Defendants were 

exonerated in the investigation, but the mere mention of an investigation has the propensity to 

cause prejudice”).

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 16 of 33 PageID 1507
10

Despite the rescission and guidance, this Court can and should grant effectual relief to Plaintiffs 

regarding the adverse collateral consequences. Connell, 555 F.2d at 486-88; Dailey, 141 F.3d at 

227; see also Chafin v. Chafin, 568 U.S. 165, 172 (2013). Specifically, Plaintiffs seek a court 

order now that would at a minimum:

• Enjoin the Coast Guard from considering vaccination status in making personnel 

and availability decisions.

• Require the Coast Guard to remove immediately all CG-3307s, any substitute 

Navarro memoranda, and any other administrative remark or document 

referencing the vaccine mandate.

• Require the Coast Guard to grant Plaintiff Marcenelle his 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.

• Declare that the Coast Guard’s enforcement of the vaccine mandate violated 

Plaintiffs’ and Class members’ rights under the United States Constitution and 

RFRA. 

Such a court order is critical to minimizing ongoing and prospective harm to Plaintiffs and other 

service members based on their past objection to the vaccine mandate.9

Retired Vice Admiral Lee—a highly respected10 former senior Coast Guard officer—

attests to this prospective harm. Adm. Lee Decl., Appx. 251-52. Courts have entered orders 

specifically recognizing the unlawful treatment of religious objectors to the vaccine mandate in 

all of the other service branches—Navy, Air Force, Marines, and Army (see ECF Nos. 5, 38, 52, 

& 52-1)—but no court has specifically recognized the unlawful treatment of religious objectors 

in the Coast Guard. As Admiral Lee attests, the existence or nonexistence of such a court order 

9 Plaintiffs offer to submit a renewed proposed order granting their pending motions for relief 

(ECF No. 4). See also ECF No. 64 at 4 n.5. If the Court is inclined to grant the Coast Guard’s 

motion to dismiss, Plaintiffs would request leave to file a first amended complaint.

10 See https://www.history.uscg.mil/Browse-by-Topic/Notable-People/All/Article/2195858/viceadmiral-william-dean-lee/.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 17 of 33 PageID 1508
11

impacts personnel decisions, and the lack of a court order specifically recognizing the unlawful 

treatment of religious objections in the Coast Guard perpetuates the harm to Plaintiffs and other 

Coast Guard religious objectors. Appx. 252.

Even if the claims for injunctive relief were somehow moot (which they are not), the 

claims for declaratory relief are not moot because of the adverse collateral consequences, the 

“continuing practical consequences,” of the Coast Guard’s wrongful conduct. Connell, 555 F.2d 

at 486. As the Fifth Circuit held in Connell, even where a request for injunctive relief was 

conceded moot following the military’s rescission of a challenged determination, the remaining 

request for declaratory judgment was not moot, because of adverse collateral consequences. 

Connell, 555 F.2d at 486-87. “[T]he continuing practical consequences” of the military’s 

wrongful determination of discrimination was “sufficient to negate mootness.” Id. at 486. For 

example, plaintiffs had “various businesses... in the area.... Since a favorable public image is 

vital to the success of such enterprises, the imputation of bigotry implicit in the Army’s widely 

publicized sanctions against appellants could not but harm their reputations and, concomitantly, 

their livelihoods....” Id. at 486-87. Likewise here, the continuing practical consequences of the 

Coast Guard’s conduct as detailed above negate mootness. See also Amerisure Ins. Co., 2021 

WL 2695143, at *3 (declaratory judgment claims not rendered moot where defendant “made no 

indication that its decision was final, unconditional, and irrevocable”); Freedom From Religion 

Found., Inc. v. Abbott, 58 F.4th 824, 837 (5th Cir. 2023) (cited by Coast Guard; vacating 

injunction that was deemed moot but not vacating declaratory judgment because it “might 

provide important guidance to future disputes”).11

11 Class certification is not at issue in the present motion, as the Coast Guard acknowledges (Def.

Memo at 11). The Coast Guard is nevertheless mistaken that any circumstances unique to a 

Plaintiff or certain subset of putative class members defeat class relief. See ECF No. 5 at 11. In 

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 18 of 33 PageID 1509
12

B. Plaintiffs seek relief in accordance with their Complaint, the law, and 

the rules.

In their Complaint and in accordance with applicable law and rules, Plaintiffs seek 

prospective relief including: injunctions against any ongoing “adverse action” related to the nowrescinded vaccine mandate; a declaration that the Coast Guard violated and is violating 

Plaintiffs’ rights under RFRA and the First Amendment; relief incidental to any such injunctive 

or declaratory relief; and any other relief to which they are entitled. Complaint (ECF No. 1) at 

66-67. See also Section IV.A. above. RFRA broadly allows for any “appropriate relief.” 42 

U.S.C. § 2000bb–1(c). This Court has broad authority to grant relief. See Swann v. CharlotteMecklenburg 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 equity has unquestioned wide 

powers to provide effective means for enforcement” of civil rights laws “and to eradicate the 

effects of past discrimination.”). This broad authority is especially important here, in light of the 

change in circumstances due to the Coast Guard’s voluntary rescission of the vaccine mandate 

and the concrete harms Plaintiffs have suffered (and are still suffering) subsequent to the filing of 

the Complaint.

any event, there are circumstances that are common to Plaintiffs and putative class members. For 

example, the Coast Guard claims the right to consider vaccination status as a significant factor in 

making personnel decisions. Further, the Coast Guard placed injurious negative remarks (CG3307s) in all members’ records and, to the extent it removed them, replaced them with other 

injurious remarks. And all class members would benefit from a declaration that the Coast Guard 

violated Plaintiffs’ and Class members’ religious-liberty rights. See Fed. R. Civ. P. 23(b)(2) (“A 

class action may be maintained if ... the party opposing the class has acted or refused to act on 

grounds that apply generally to the class, so that final injunctive relief or corresponding 

declaratory relief is appropriate respecting the class as a whole”); Adm. Lee Declaration, Appx. 

252. 

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 19 of 33 PageID 1510
13

The Coast Guard mistakenly asserts that Plaintiffs now seek new, retrospective relief, 

beyond what they demanded in their Complaint.12 The Coast Guard is mistaken; Plaintiffs seek 

prospective relief in accordance with their Complaint. But even if the Coast Guard were right 

(which it is not), under Federal Rule of Procedure 54(c) this Court can and should nevertheless 

grant the relief to which Plaintiffs’ are entitled. Franciscan All., Inc. v. Becerra, 47 F.4th 368, 

378 (5th Cir. 2022) (“[E]ven if Appellants are right that Franciscan Alliance’s complaint did not 

seek relief against Section 1557 enforcement, Rule 54(c) allows district courts to grant ‘relief to 

which each party is entitled, even if the party has not demanded that relief in its pleadings.’”). 

The Coast Guard suffers no prejudice because the Coast Guard has a chance to argue—and 

already has argued, unsuccessfully —whether the proposed relief is improper. See id. (“[W]hen a 

party has a chance to argue whether the proposed relief is improper, ‘there is no prejudice.’”) 

(quoting Portillo v. Cunningham, 872 F.3d 728, 735 (5th Cir. 2017)).

C. The claims for injunctive relief are justiciable and not subject to 

Mindes exhaustion.

The Coast Guard mistakenly claims that the limited injunctive relief Plaintiffs seek—

prohibiting consideration of vaccination status in making personnel and availability decisions, 

reconsideration of promotion for Plaintiff Marcenelle, and removal of all CG-3307s and any 

other injurious documents that replaced them—is non-justiciable and subject to exhaustion under 

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971). Def. Memo at 10, 12. As discussed at length 

previously, Plaintiffs’ claims, including their RFRA claims, are justiciable; exhaustion would be 

futile; exhaustion is not required by RFRA and the First Amendment anyway; Mindes does not 

12 The Coast Guard’s issuance of guidance and new procedures in bits and pieces over the course 

of weeks and months (see Section II above) made it virtually impossible to try amend the 

Complaint at the same pace while accounting precisely for each new issuance. This is another 

facet of the Coast Guard’s litigation posturing. See Section IV.D. below.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 20 of 33 PageID 1511
14

apply; and even if it did its factors are easily satisfied here.13 ECF No. 5 at 17 n.11; ECF No. 38 

at 11-12 (both briefs incorporated herein). Further, as the Fifth Circuit held in Hodges v. 

Callaway, a case cited by the Coast Guard and decided nearly 20 years before RFRA was 

enacted,14 “[O]nly those remedies which provide a real opportunity for adequate relief need be 

exhausted.” 499 F.2d 417, 420 (5th Cir. 1974). The Coast Guard offers no such opportunity.

The Coast Guard’s vague and empty offer to “work with service members to resolve 

concerns” (Def. Memo at 12) certainly does not moot Plaintiffs’ claims. See Tucker v. Gaddis, 

40 F.4th 289, 292-93 (5th Cir. 2022) (government allowing plaintiff to “apply” for requested 

religious-liberty relief does not moot his claim for relief); id. at 292 (“A case is not rendered 

moot simply because there is a possibility, or even a probability, that the outcome of a separate 

administrative proceeding may provide the litigant with similar relief”) (quoting El Paso Elec. 

Co. v. FERC, 667 F.2d 462, 467 (5th Cir. 1982)). To date, the Coast Guard has not resolved 

Plaintiffs’ concerns, and its vague and nebulous promises are nothing more than empty words.

Though Plaintiff Marcenelle submitted a request for a special promotion board for the 

promotion to which he is entitled effective April 29, 2023, he reasonably believes the request is 

futile. Appx. 13. The Coast Guard has not granted the request to date. Appx. 13-14. This week, 

the Coast Guard informed Plaintiff Marcenelle that the earliest he would receive a decision from 

an SSB (even assuming one is granted) would be several months after April 29. Appx. 13. If the 

Coast Guard does in fact grant the board, convene the board, and select him for promotion, and if 

13 The Supreme Court’s one-paragraph ruling in Austin v. Navy SEALS 1-26, 142 S. Ct. 1301 

(2022), narrowly stayed the scope of a preliminary injunction applicable to individual elite Naval 

officers. Justice Kavanaugh’s concurrence, joined by no other Justices, is not controlling. Three 

Justices (Thomas, Alito, and Gorsuch) expressly disagreed with him.

14 The Coast Guard cites and relies on other pre-RFRA or non-RFRA cases that are inapposite 

including Orloff v. Willoughby, 345 U.S. 83 (1953), Gilligan v. Morgan, 413 U.S. 1 (1973), and 

Pulphus v. Ayers, 909 F.3d 1148 (D.C. Cir. 2018). See also footnote 15 infra.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 21 of 33 PageID 1512
15

Defendant Mayorkas promptly approves the promotion, Plaintiff Marcenelle will withdraw the 

request in this case for that particular relief, though such a grant could be another example of the 

Coast Guard’s litigation posturing. See Section IV.D. below.

His request for a special promotion board aside, because Plaintiff Marcenelle was denied 

promotion solely because of his religious objection and vaccination status (see Appx. 11-12; 

ECF No. 62-1 at 71; Complaint, ¶¶ 55, 292), the “limited military expertise” involved with 

respect to these issues weighs in favor of judicial review. Schelske v. Austin, No. 6:22-CV-049-

H, 2022 WL 17835506, at *16 (N.D. Tex. Dec. 21, 2022). The promotion is not a competitive 

promotion—that is, no one else is competing for the same position. Appx. 11. In other words, no 

other Lieutenants Junior Grade competed against him for his position. Appx. 11. His specific 

promotion denial therefore did not involve a “complex, subtle, and professional decision” 

deserving of deference—it was a simple, unsubtle, unlawful decision to deny him promotion 

solely on the basis of his religious objection and vaccination status. See Schelske, 2022 WL 

17835506, at *16 (quoting Navy SEALs 1-26 v. Biden, 27 F.4th 336, 349 (5th Cir. 2022)). Where 

the military “intends to ignore the religious rights guaranteed by RFRA, courts must intervene 

because generals don’t make good judges—especially when it comes to nuanced constitutional 

issues.” Id. (cleaned up). This Court can and should intervene and order the Coast Guard to grant 

Plaintiff Marcenelle his 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, 

2023.15 See Singh v. Berger, 56 F.4th 88, 110 (D.C. Cir. 2022) (ordering district court to 

15 Any laws governing special selection boards, including 14 U.S.C. §§ 263, 2120, are subject to 

RFRA. 42 U.S. Code § 2000bb–3; see also Navy Seals 1-26 v. Biden, 27 F.4th 336, 346 (5th Cir. 

2022) (“RFRA ‘operates as a kind of super statute, displacing the normal operation of other 

federal laws[.]’” (quoting Bostock v. Clayton County, 140 S. Ct. 1731, 1754 (2020)); see also 

Roth v. U.S., 378 F.3d 1371, 1386 (Fed. Cir. 2004) (“What we think the government fails to 

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 22 of 33 PageID 1513
16

“prompt[ly]” enter preliminary injunction under RFRA “requiring the Marine Corps to allow” 

plaintiff members of the Sikh religion “to enlist without shaving their heads or beards and while 

bearing those articles of faith that the Government failed to argue against on appeal”).

The Court likewise can and should grant injunctive relief regarding the CG-3307s and 

any memoranda that replaced them, and the ongoing discriminatory quarantine policy. The Coast 

Guard does not and cannot point to any non-futile means of pursuing administrative remedies for 

this or any other relief.

D. The voluntary-cessation doctrine saves the case from mootness.

Even if there were no remaining adverse collateral consequences, under the voluntarycessation doctrine this case is not moot because the Coast Guard voluntarily rescinded the 

mandate and voluntarily issued its guidance. Under this doctrine, “a defendant’s voluntary 

cessation of a challenged practice does not deprive a federal court of its power to determine the 

legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). As 

this Court explained, “Otherwise, a defendant could engage in unlawful conduct, stop when sued 

to have the case declared moot, then pick up where he left off, repeating this cycle until he 

achieves all his unlawful ends.” Amerisure Ins. Co., 2021 WL 2695143, at *3 (quoting Already, 

LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). “[A] defendant claiming that its voluntary 

compliance moots a case bears the formidable burden of showing that it is absolutely clear the 

allegedly wrongful behavior could not reasonably be expected to recur.’” Amerisure Ins. Co., 

recognize, however, is that a normally nonjusticiable decision [regarding military decisions to 

not correct service member records] is not insulated from judicial review if it flows directly from 

the breach of a statute or regulation. Once a breach has been established, the obligation falls to 

the Board, or if necessary to the court, to take steps to grant thorough and fitting relief.”) 

(internal citations omitted).

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 23 of 33 PageID 1514
17

2021 WL 2695143, at *3 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services 

(TOC), Inc., 528 U.S. 167, 190 (2000)). The Coast Guard cannot meet this formidable burden.

i. The Coast Guard falsely claims its cessation was not voluntary.

The Coast Guard brazenly contends that the rescission was not voluntary, that the Coast 

Guard “ha[s] been required through action of Congress to rescind” and that “Congress ‘has done 

the work that Plaintiffs wanted [this Court] to do.’” ECF No. 70 at 1, 7. These contentions are 

false. The Coast Guard voluntarily rescinded the mandate and voluntarily issued its guidance. 

ECF Nos. 50, 52, 53, 55. The NDAA does not apply to the Coast Guard. Id. To the extent the 

Coast Guard has chosen to “align” itself with the other service branches—i.e., the branches 

under the Department of Defense—that was the Coast Guard’s voluntary decision. This is 

especially clear from the fact that, to date, the Coast Guard has not aligned itself with, for 

example, the DoD’s February 24 guidance removing certain deployment restrictions. Appx. 269.

In fact, much of the Department of Defense’s policy changes were themselves voluntary, such as 

expungement of adverse records, which was not required by the NDAA.

ii. It is not “absolutely clear” the wrongful conduct could not reasonably be 

expected to recur.

The Coast Guard also does not and cannot show that it is “absolutely clear the wrongful 

behavior could not reasonably be expected to recur.” Amerisure Ins. Co., 2021 WL 2695143, at 

*3. The Coast Guard itself admits its behavior can reasonably be expected to recur: “[T]he Coast 

Guard retains the ability to, at some future date, establish a new COVID-19 vaccination 

requirement that might apply to at least one of these Plaintiffs in some circumstance.” Def. 

Memo 1. See Tucker, 40 F.4th at 293 (“T]he government has not even bothered to give Tucker 

any assurance that it will permanently cease engaging in the very conduct that he challenges. To 

the contrary, as noted, counsel for TDCJ stated precisely the opposite during oral argument—

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 24 of 33 PageID 1515
18

TDCJ would not guarantee congregation in the future, but instead would reserve the question in 

light of potential ‘time, space, and security concerns.’”) (denying mootness claim); see also 

Pederson v. Louisiana State Univ., 213 F.3d 858, 874-75 (5th Cir. 2000) (holding Title IX case 

not moot where defendant university officials “made no representation to this court that they are 

dedicated to ensuring equal opportunities and fair accommodation for both their female and male 

athletes in the long run,” but “ simply state[d] that they have instituted varsity women’s fastpitch softball and soccer [as plaintiffs requested] and that they have, as required, submitted a 

Compliance Plan to the district court. [They] have given no assurance that they will not disband 

these programs, as they have with varsity fast-pitch softball in the past”).

This admission by the Coast Guard is consistent with its voluntary rescission order, in 

which the Coast Guard insists the mandate was “lawful;” the subsequent guidance, in which the 

Coast Guard insists it can still consider vaccination status as a factor in personnel and availability 

decisions; and the ongoing discriminatory quarantine policy. These facts are more than sufficient 

to show Plaintiffs’ reasonable expectation of recurrence (and to show current, ongoing wrongful 

conduct). The Coast Guard can also still require vaccination for service in certain foreign 

countries, which further demonstrates that a reasonable expectation of recurrence, including for

at least Plaintiff Stone, who has been deployed and is subject to deployment to any foreign 

shore.16

16 The military unlawfully does not permit religious accommodations regarding any current or 

future COVID-19 vaccine requirement including for deployment to a foreign country. See

footnote 23 infra. See also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 

U.S. 418, 438 (2006) (“[T]he Government did not even submit evidence addressing the 

international consequences of granting an exemption for the UDV. The Government simply 

submitted two affidavits by State Department officials attesting to the general importance of 

honoring international obligations and of maintaining the leadership position of the United 

States in the international war on drugs.... We do not doubt the validity of these interests, any 

more than we doubt the general interest in promoting public health and safety by enforcing the 

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 25 of 33 PageID 1516
19

iii. Even with “some solicitude,” the Coast Guard cannot meet its burden.

The Coast Guard claims that, as a government actor, it bears a “lighter burden” to prove 

non-recurrence. Many Supreme Court and Fifth Circuit cases do not apply a lighter burden to 

government actors. See, e.g., City of Mesquite, 455 U.S. at 289; Trinity Lutheran Church of 

Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017); Speech First, Inc., 979 F.3d at 327-

29; Franciscan All., Inc., 47 F.4th at 376; Tucker, 40 F.4th at 292-93. See also Tucker, 40 F.4th 

at 295 (Ho, J., concurring) (The mootness “standard is strict because courts are naturally 

suspicious—or at least they should be—of officials who try to avoid judicial review by 

voluntarily mooting a case.”) (emphasis in original).

Even granting “some solicitude” to government actors, as the Fifth Circuit sometimes 

does, the result is the same. Speech First, Inc., 979 F.3d at 328; Texas v. Biden, 20 F.4th 928, 964 

(5th Cir. 2021), rev’d on other grounds, 142 S. Ct. 2528 (2022). In such cases, the defendant’s 

burden remains “formidable,” and the court considers evidence of whether the government acted 

in “good faith” or engaged in “litigation posturing,” including “(1) the absence of a controlling 

statement of future intention not to repeat the challenged policy; (2) the suspicious timing of the 

change; and (3) the government entity’s continued defense of the challenged policies.” Texas, 20 

F.4th at 962, 964 (brackets omitted)17 (quoting Speech First, Inc., 979 F.3d at 328-29). All three 

factors weigh heavily against the government here. 

Controlled Substances Act, but under RFRA invocation of such general interests, standing 

alone, is not enough”) (emphasis added).

17 Texas v. Biden, like this case, involved Defendant Mayorkas’s Department of Homeland 

Security engaging in litigation posturing to try to moot a case. See Texas, 20 F.4th at 962 (“DHS 

has repeatedly exhibited gamesmanship in its decisionmaking”).

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 26 of 33 PageID 1517
20

First, there is a total absence of any commitment to not repeat the challenged policy.

Indeed, the Coast Guard admits its behavior can reasonably be expected to recur, and indeed 

some discriminatory policies continue to this day, as discussed above. 

Second, the timing of the Coast Guard’s changes is suspicious. It voluntarily rescinded 

the mandate after this case was filed and issued guidance loosely tracking—though not in full 

satisfaction of—Plaintiffs’ demands, enough to claim that it is providing all the relief Plaintiffs 

seek without actually doing so, as discussed above. The Coast Guard claims it rescinded to 

“align” with the DoD. But why did it choose to align with the DoD? The Coast Guard was not 

required to align itself with the DoD (ECF Nos. 50, 52, 53, 55), the Coast Guard expressly 

distanced itself from the DoD, for example, in connection with the Inspector General’s findings 

of unlawful RAR processes (ECF No. 38 at 4 n.5; ECF No. 30 at 15, 39), and the Coast Guard 

continues to maintain the mandate was lawful, appropriate, and served the interests of health and 

readiness (Def. Memo at 2). The reality is: the Coast Guard did not want to be the only service 

branch left defending an increasingly unpopular and legally indefensible mandate, and timed its 

rescission and guidance accordingly.18

Third, the Coast Guard continues to defend, unqualifiedly, the challenged vaccine 

mandate and related guidance. Again, the rescission order insists the mandate was “lawful,” the 

guidance permits the Coast Guard to consider vaccination status as a factor in personnel and 

availability decisions, and even now the Coast Guard continues to defend the mandate (Def. 

Memo at 2).

18 To the extent the Coast Guard now takes any further steps to try to moot some or all of 

Plaintiffs’ requested relief, that would be further evidence of litigation posturing.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 27 of 33 PageID 1518
21

There is other, abundant evidence of the Coast Guard’s bad faith. For example, as 

discussed above, the Coast Guard misrepresents the very nature of its cessation, claiming the 

NDAA “required” the CG to rescind the mandate when in fact it was provably voluntary. And, 

fundamentally, the entire sham RAR process evidences the Coast Guard’s bad faith. See ECF 

Nos. 5 & 38.19

iv. The Coast Guard’s cases are irrelevant.

In asserting that the voluntary-cessation doctrine does not apply, the Coast Guard relies 

on numerous irrelevant cases that variously involve:

• Involuntary cessation, by statute or otherwise. See Fantasy Ranch Inc. v. City of 

Arlington, 459 F.3d 546, 564 (5th Cir. 2006) (statutory change); Johnson v. 

Mississippi, 586 F.2d 387, 388 (5th Cir. 1978); (same); Am. Bar Ass’n v. FTC, 636 

F.3d 641, 643 (D.C. Cir. 2011) (same); Log Cabin Republicans v. U.S., 685 F.3d 

1162, 1166-68 (9th Cir. 2011) (same); DeOtte v. Nevada, 20 F.4th 1055, 1064 (5th 

19 The Coast Guard also continues to assert that the vaccines are “safe and effective” and 

necessary to “protect service members’ health,” Def. Memo. at 2, despite mounting evidence that 

they are in fact neither safe nor effective, and that rather than protecting service members’ health 

they are in fact detrimental to it. See, e.g., “Cumulative Analysis of Post-Authorization Adverse 

Event Reports of PF-07302048 (BNT162B2) Received Through 28-Feb-2021,” 

https://www.datascienceassn.org/content/pfizer-adverse-events-report (released only as a result 

of a court order and showing Pfizer’s COVID vaccines were associated with 42,086 adverse 

events, including 1,223 deaths, in just a three-month timespan); S.V. Subramanian, A. Kumar, 

“Increases in COVID-19 are unrelated to levels of vaccination across 68 countries and 2947 

counties in the United States,” Eur. J. Epidemiol., Dec. 2021, 

https://pubmed.ncbi.nlm.nih.gov/34591202/ (finding “no significant signaling of COVID-19 

cases decreasing with higher percentages of population fully vaccinated”). And the DoD’s Under 

Secretary of Defense for Personnel and Readiness, Gilbert Cisneros, recently testified to 

Congress that “natural immunity is not something we believe in for this” 

(https://www.yahoo.com/lifestyle/thousands-unvaccinated-members-could-still-100002872.html)

despite evidence that natural immunity is superior to vaccine immunity. See, e.g., The Lancet’s 

“Past SARS-CoV-2 infection protection against re-infection: a systematic review and metaanalysis,” Feb. 16, 2023, https://www.thelancet.com/journals/lancet/article/PIIS0140-

6736(22)02465-5/fulltext.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 28 of 33 PageID 1519
22

Cir. 2021) (same); Klayman v. Obama, 759 F. App’x 1, 3 (D.C. Cir. 2019) (same); 

Amawi v. Paxton, 956 F.3d 816, 821 (5th Cir. 2020) (same); Guedes v. ATF, 920 F.3d 

1, 15 (D.C. Cir. 2019) (cessation not voluntary because it was the “result of the 

combined actions of a presidential nomination and an independent Senate 

confirmation”).

• A challenged policy that expired by its own terms. See Spell v. Edwards, 962 F.3d 

175, 179 (5th Cir. 2020) (“[A] statute that expires by its own terms does not implicate 

[whether the change in policy was litigation posturing]. Why? Because its lapse was 

predetermined and thus not a response to litigation. So unlike a postsuit repeal that 

might not moot a case, a law’s automatic expiration does.... Governor Edwards’s 

stay-at-home orders expired by their own terms. The plaintiffs’ request that we enjoin 

them is therefore moot.”); J.T. v. District of Columbia, 983 F.3d 516, 523 (D.C. Cir. 

2020) (challenged policy expired by its own terms).20

• A challenged policy that defendant admitted was illegal and did not defend. See

Yarls v. Bunton, 905 F.3d 905, 911 (5th Cir. 2018) (“Indeed, Appellees joined 

Appellants in urging us to declare the waitlists unconstitutional.... We doubt 

Appellees will re-implement waitlists on their own initiative.”).

• A defendant that made no indication whatsoever that it would enact the 

challenged policy again. See Freedom From Religion Found., Inc., 58 F.4th at 834;

21

Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324 (5th Cir. 2009), aff’d on 

20 Snider v. Cain, No. 4:20-CV-00670-P, 2020 WL 6262192 (N.D. Tex. Oct. 23, 2020) is another 

example of a case that is irrelevant here because the challenged regulation expired by its own 

terms.

21 Even in Freedom From Religion Found., the Court did not vacate the declaratory judgment 

because it “might provide important guidance to future disputes.” Id. at 837.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 29 of 33 PageID 1520
23

other grounds sub nom. Sossamon v. Texas, 563 U.S. 277 (2011); Stauffer v. 

Gearheart, 741 F.3d 574, 582 (5th Cir. 2014).

22

Here, by contrast, the Coast Guard voluntarily rescinded the mandate and voluntarily issued its 

guidance; the Coast Guard mandate did not expire by its own terms; and the Coast Guard refuses 

to admit its RAR process was unlawful, continues to insist it acted lawfully, concedes that it may 

enact the challenged policy again, reserves the right to consider vaccination status as a factor, 

even a significant factor, in personnel decisions, continues is discriminatory quarantine policy, 

and can require vaccination for certain foreign engagements. The case is not moot.

E. The dispute is capable of repetition while evading review.

Even if there were no remaining adverse collateral consequences, and even if the 

voluntary-cessation doctrine did not apply, this case is not moot because the dispute is capable of 

repetition while evading review. See Cath. Leadership Coal. of Texas v. Reisman, 764 F.3d 409, 

422 (5th Cir. 2014) (no mootness where “(1) the challenged action was in its duration too short

to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation 

that the same complaining party would be subjected to the same action again.”). 

22 The Coast Guard also cites several military vaccine cases in other Circuits where appeals or 

claims were dismissed, with some dismissed as moot. Def. Memo at 8 n.1. These cases are all 

irrelevant. For example: none discussed the voluntary-cessation doctrine; most involved other 

service branches that, unlike the Coast Guard, were required to rescind their mandates under the 

NDAA and are also currently subject to another court’s class-wide injunction order; at least one 

did not involve a RFRA claim (Clements v. Austin, No. 22-cv-2069 (D.S.C.)); one expressly 

rejected the RFRA/justiciability/exhaustion analysis of the Fifth and other Circuits (Alvarado v. 

Austin, No. 22-cv-876 (E.D. Va.)); and in some, plaintiffs voluntarily dismissed the case 

themselves or consented to dismissal (Chancy v. Biden, No. 22-cv-110 (N.D. Fla.); Oklahoma v. 

Biden, No. 21-cv-1136 (W.D. Okla.); Church v. Biden, No. 21-cv-2815 (D.D.C.); and Air Force 

Major v. Austin, No. 22-cv-756 (N.D. Tex.)). The only case originating in this Circuit (Air Force 

Major) was brought by an Air Force service member who voluntarily dismissed his case and is 

protected under the Air Force class-wide injunction order in Doster v. Kendall, No. 1:22-CV-84, 

2022 WL 2974733, at *1 (S.D. Ohio July 27, 2022), aff’d, 54 F.4th 398 (6th Cir. 2022).

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 30 of 33 PageID 1521
24

First, the dispute is capable of repetition because, as discussed above, the Coast Guard 

admits that it may implement the mandate again. Def. Memo at 1. There’s a reasonable 

expectation that Plaintiffs would be subjected to the same unlawful action again. Second, the 

dispute evades review, because of the short time period. The Coast Guard enacted the mandate in 

August 2021 but did not issue Plaintiffs’ RAR final denials until May 2022. Plaintiffs filed this 

case in September 2022. Just three months later, in December 2022, the Coast Guard suggested it 

may voluntarily rescind the mandate, and then in January 2023 the CG voluntarily rescinded it. 

By prolonging a sham RAR process as long as possible to delay the inevitable denials, then 

quickly rescinding any challenged mandate not long after a service member is able to file suit,

the Coast Guard can illegally pressure religious believers to submit to any new mandate in the 

future. Moreover, if and when the Coast Guard were to reinstitute the mandate, there is no 

guarantee Plaintiffs or any putative class members would even be afforded an opportunity to 

seek religious accommodations.23 For these additional reasons, the case is not moot.

V. CONCLUSION

The Court should deny the Coast Guard’s Motion to Dismiss. This case is not moot. The 

Coast Guard continues to maintain adverse actions against Plaintiffs for objecting to the vaccine 

when the mandate was in place. 

Even if the adverse actions had ceased, the voluntary-cessation doctrine saves this case 

from mootness. The Coast Guard falsely claims that Congress “required” it to rescind the 

mandate, but its rescission was entirely voluntary. The Coast Guard does not and cannot meet its 

formidable burden of showing that subsequent events make it absolutely clear that the allegedly 

23 See 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”).

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 31 of 33 PageID 1522
25

wrongful behavior could not reasonably be expected to recur. The case is also not moot because 

the dispute is capable of repetition while evading review.

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 32 of 33 PageID 1523
26

Dated: March 31, 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

Case 4:22-cv-00825-P Document 72 Filed 03/31/23 Page 33 of 33 PageID 1524