UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ALARIC STONE, ERIC JACKSON, and )

MICHAEL MARCENELLE, on behalf of )

themselves and all others similarly situated, )

) Case No. 4:22-cv-825

Plaintiffs, )

v. )

)

ALEJANDRO N. MAYORKAS, in his official )

capacity as Secretary of Homeland Security, )

LLOYD J. AUSTIN, III, in his )

official capacity as Secretary of Defense, )

LINDA L. FAGAN, in her official )

capacity as Commandant of the Coast Guard, and )

BRIAN K. PENOYER, in his official capacity )

as Assistant Commandant for Human )

Resources of the Coast Guard, )

)

Defendants. )

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTIONS TO CERTIFY CLASS, 

TO APPOINT CLASS COUNSEL, AND FOR CLASS-WIDE TEMPORARY 

RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

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

II. BACKGROUND ................................................................................................................ 3

III. CLASS CERTIFICATION................................................................................................. 5

A. LEGAL STANDARD..................................................................................................... 5

B. THE COURT SHOULD CERTIFY THE CLASS ......................................................... 6

1. The Class is adequately defined and clearly ascertainable....................................... 6

2. Plaintiff and the Class satisfy the requirements of Rule 23(a). ................................ 8

a. The Class is so numerous that joinder of all members is impracticable........... 8

b. There are questions of fact and law common to the Class................................ 9

c. Plaintiffs’ claims are typical. .......................................................................... 11

d. Plaintiffs will fairly and adequately protect the interests of the Class............ 12

3. Plaintiffs and the Class satisfy the requirements of Rule 23(b)(2)......................... 15

IV. APPOINTMENT OF CLASS COUNSEL ....................................................................... 15

V. CLASS-WIDE TRO AND PRELIMINARY INJUNCTION........................................... 16

A. LEGAL STANDARD................................................................................................... 16

B. THE COURT SHOULD ISSUE A CLASS-WIDE TRO AND INJUNCTION .......... 16

1. The Court can and should hear Plaintiffs’ claims. ................................................. 17

2. The Class is likely to succeed on the merits of its RFRA and First Amendment 

Claims..................................................................................................................... 17

3. Irreparable injury will result absent relief. ............................................................. 23

4. The balance of hardships weighs in the Class’s favor, and a TRO or injunction will 

not disserve the public interest. .............................................................................. 24

VI. CONCLUSION................................................................................................................. 25

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LOCAL RULE 23.2 REQUIREMENTS

L.R. 23.2(a): The suit is properly maintainable as a class action under Fed. R. Civ. P. 23(a) and 

23(b)(2). See Sections III.A.-B. 

L.R. 23.2(b)(1) (number of members): See Section III.B.2.a. 

L.R. 23.2(b)(2) (definition of Class): See Sections II & III.B.1. 

L.R. 23.2(b)(3) (distinguishing and common characteristics of members: See Sections III.B.1 & 

III.B.2.B. 

L.R. 23.2(b)(4) (common questions of law and fact): See Section III.B.2.b. 

L.R. 23.2(b)(5) (Rule 23(b)(3) findings): Not applicable because the class is maintainable under 

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

L.R. 23.2(c) (adequacy): See Section III.B.2.d.

L.R. 23.2(d): Jurisdictional amount is not an issue because the Court’s jurisdiction is based on a 

federal question. See 28 U.S.C. § 1331. 

L.R. 23.2(e): Notice is not required under Fed. R. Civ. P. 23(b)(2). 

L.R. 23.2(f): Plaintiffs do not believe any discovery is required for a class certification hearing. 

L.R. 23.2(g) (payment of fees): See Section III.B.2.d.; Attorney Declarations.

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TABLE OF AUTHORITIES

Cases

Air Force Officer v. Austin, 

No. 5:22-CV-00009-TES, 2022 WL 468799 (M.D. Ga. Feb. 15, 2022)........ 13, 17, 18, 19

Amchem Prods., Inc. v. Windsor, 

521 U.S. 591 (1997).......................................................................................................... 15

Austin v. Navy Seals 1-26, 

142 S.Ct. 1301 (2022)....................................................................................................... 17

Bazzrea v. Mayorkas, 

No. 3:22-cv-265 (S.D.Tex)................................................................................................. 3

Bear Creek Bible Church v. EEOC, 

571 F. Supp. 3d 571 (N.D. Tex. 2021) ............................................................................... 8

Beck v. University of Wisconsin Bd. of Regents, 

75 F.3d 1130 (7th Cir. 1996) ............................................................................................ 19

Bostock v. Clayton County, 

140 S. Ct. 1731 (2020)...................................................................................................... 17

Brown v. Ent. Merchs. Ass’n, 

564 U.S. 786 (2011).......................................................................................................... 22

Castano v. Am. Tobacco Co., 

84 F.3d 734 (5th Cir. 1996) ................................................................................................ 6

Col. Fin. Mgmt. Officer v. Austin, 

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

DeOtte v. Azar, 

332 F.R.D. 188 (N.D. Tex. 2019)....................................................................................... 6

Doe v. San Diego Unified Sch. Dist., 

142 S.Ct. 1099................................................................................................................... 13

Doster v. Kendall, 

No. 1:22-CV-00084-MWM, 2022 WL 2760455 (S.D. Ohio July 14, 2022) ............... 2, 10

Doster v. Kendall, 

2022 WL 4115768 (6th Cir. Sept. 9, 2022) ............................................................... passim

Doster v. Kendall, 

No. 1:22-CV-00084-MWM, 2022 WL 2974733 (S.D. Ohio July 27, 2022) ............... 2, 19

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Fjellestad v. Pizza Hut of Am., Inc., 

188 F.3d 944 (8th Cir. 1999) ............................................................................................ 20

Fulton v. Philadelphia, 

141 S.Ct. 1868 (2021)................................................................................................. 20, 22

Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)........................................................ 9, 11, 12

James [v. City of Dallas], 

254 F.3d [551] [(5th Cir. 2001)]............................................................................1127 F.4t

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm’n, 

138 S. Ct. 1719 (2018).................................................................................................. 7, 23

Mindes v. Seaman, 

453 F.2d 197 (5th Cir. 1971) ............................................................................................ 17

Mullen v. Treasure Chest Casino, 

186 F.3d 620 (5th Cir. 1999) .................................................................................... 8, 9, 11

Navy Seal 1 v. Austin, No. 8:21-cv-02429-SDM-TGW (M.D. Fla.) ............................................ 22

Navy SEALs 1-26 v. Austin, 

No. 4:21-cv-01236-O, 2022 WL 1025144 (N.D. Tex. March 28, 2022)................... passim

Navy Seals 1-26 v. Biden, 

27 F.4th 336 (5th Cir. 2022) ................................................................................... 9, 17, 18

Navy SEALs 1-26 v. Biden, 

578 F. Supp. 3d 822 (N.D. Tex. 2022) ............................................................................... 4

Nken v. Holder, 

556 U.S. 418 (2009).......................................................................................................... 24

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

697 F.3d 279 (5th Cir. 2012) ............................................................................................ 17

Ramirez v. Collier, 

142 S. Ct. 1264, 1280 (2022)............................................................................................ 22

Roman Cath. Diocese of Brooklyn v. Cuomo, 

141 S. Ct. 63 (2020).......................................................................................................... 21

Navy Seal 1 v. Austin, 

No. 8:21-cv-02429 (M.D. Fla)............................................................................................ 3

Slade v. Progressive Sec. Ins., 

856 F.3d 408 (5th Cir. 2017) ............................................................................................ 12

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v

South Bay United Pentecostal Church, et al. v. Gavin Newsom, et al., 

141 S. Ct. 716 (2021)........................................................................................................ 13

Vita Nuova, Inc. v. Azar, 

No. 4:19-CV-00532-O, 2020 WL 8271942 (N.D. Tex. Dec. 2, 2020)............................... 7

Wal-Mart Stores, Inc. v. Dukes, 

564 U.S. 338 (2011).............................................................................................. 6, 8, 9, 12

Woodruff v. Caris MPI, Inc., 

No. 3:21-CV-2993-B, 2021 WL 5760506 (N.D. Tex. Dec. 3, 2021)............................... 16

Zeidman v. J. Ray McDermott & Co., 

651 F.2d 1030 (5th Cir. 1981) ............................................................................................ 8

Statutes

42 U.S.C. § 2000bb-1.......................................................................................18

Rules

DoD Instruction 1332.45, Retention Determinations for Non-Deployable Service Members, July 

30, 2018 (updated April 27, 2021),

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133245p.pdf?ver=2018-

08-01-143025-053....................................................................................................................4

Fed. R. Civ. Proc. 23(a)...............................................................................passim

Fed. R. Civ. Proc. 23(b).................................................................................6, 15

Fed. R. Civ. Proc. 23(c)........ .............................................................................15

Fed. R. Civ. Proc. 23(g).................................................................................12, 15

Other Authorities

CDC, COVID-19, Types of Masks and Respirators – Summary of Recent Changes, Jan 28, 2022, 

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html...... 22

CDC, Science Brief: SARS-CoV-2 Infection-induced and Vaccine-induced Immunity, Oct. 29, 

2021, www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/vaccine-inducedimmunity.html......................................................................................................................... 19

CDC, Summary of Guidance for Minimizing the Impact of COVID-19..., August 2022, 

www.cdc.gov/mmwr/volumes/71/wr/mm7133e1.htm. .................................................... 18, 22

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Elie Dolgin, “Omicron thwarts some of the world’s most-used COVID vaccines,” Nature, Jan. 

13, 2022, https://www.nature.com/articles/d41586-022-00079-6; CDC, COVID-19, Omicron 

Variant: What You Need to Know........................................................................................... 22

Hall, Victoria et al., Protection against SARS-CoV-2 after COVID-19 Vaccine and Previous 

Infection, The New England Journal of Medicine, March 31, 2022, 

https://www.nejm.org/doi/full/10.1056/NEJMoa2118691 ..................................................... 19

Ryan Morgan, “Coast Guard to scrutinize members requesting religious exemptions for 

mandatory COVID vaccine, leaked document reveals,” American Military News, September 

24, 2021, https://americanmilitarynews.com/2021/09/coast-guard-to-scrutinize-membersrequesting-religious-exemptions-for-mandatory-covid-vaccine-leaked-document-reveals..... 4

Defendant Adm. Fagan, U.S. Senate Committee Testimony, May 2022 

https://www.youtube.com/watch?v=D6V2caVZ6S0 ............................................................... 3

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I. INTRODUCTION

By policy, the Coast Guard—indeed, the military as a whole—has granted zero requests 

for religious accommodation regarding the military’s COVID-19 vaccine mandates (other than 

for those already slated for separation or retirement), while granting exemption requests for 

secular reasons. The Coast Guard’s policy of general religious discrimination has thereby 

violated the religious-liberty rights of all Coast Guard religious objectors in violation of the 

Religious Freedom Restoration Act (RFRA) and the First Amendment. Even the military’s own 

Inspector General recently found the military’s religious accommodation process is unlawful. 

Plaintiffs’ request for relief is urgent; the Coast Guard has begun to take steps to separate 

Plaintiffs and all similarly situated service members. 

Here the Coast Guard is refusing even to accommodate the Coast Guard Academy’s 2020 

Distinguished Honor Graduate (Officer Alaric Stone), who has since successfully completed four 

worldwide deployments, transferred to an intelligence analyst position under a “needs of the 

Service” waiver, and was recently deemed by an evaluator—after his religious accommodation 

request was finally denied—to be “performing well above paygrade,” with the “[h]ighest 

recommendation for future afloat tours,” and to have “limitless potential.” Stone Decl. ¶ 15, 

Appx 18. It also denied Non-Commissioned Officer Eric Jackson’s accommodation request 

despite his Commander’s express endorsemen that it would pose “no hindrance to operations” or 

“mission readiness.” Jackson Decl. ¶ 28, Appx 167. And on the same day it reprimanded Officer 

Michael Marcenelle for not being vaccinated, the Coast Guard awarded him the Coast Guard 

Achievement Medal for his superior performance the past three years. Marcenelle Decl. ¶ 35, 

Appx 239.

In a related case, this Court issued class-wide relief on behalf of all Navy religious 

objectors. Navy SEALs 1-26 v. Austin, No. 4:21-cv-01236-O, 2022 WL 1025144 (N.D. Tex. 

Case 4:22-cv-00825-P Document 5 Filed 09/16/22 Page 8 of 33 PageID 94
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March 28, 2022) (“Navy Class Order”). Other courts have issued similar class-wide relief on 

behalf of all religious objectors in the Air Force and Marines. Doster v. Kendall, No. 1:22-CV00084-MWM, 2022 WL 2974733 (S.D. Ohio July 27, 2022) (“Air Force Class Order”);1 Col. 

Fin. Mgmt. Officer v. Austin, No. 8:22-CV-1275-SDM-TGW, 2022 WL 3643512 (M.D. Fla. 

Aug. 18, 2022) (“Marines Class Order”). The military branches all operate under the same 

general policy of discrimination against religious service members, in violation of RFRA and the 

First Amendment. This Court should now issue relief on behalf of the three named Coast Guard 

Plaintiffs and class-wide relief on behalf of all Coast Guard religious objectors.

Specifically, the Court should certify the proposed Coast Guard class (the “Class”) 

because the requirements of numerosity, commonality, typicality, and adequacy under Rule 23(a) 

are satisfied, and Defendants have acted or refused to act on grounds that apply generally to the 

Class, so relief as to the Class as a whole is appropriate. The Court should appoint Plaintiffs’ 

counsel as Class counsel (“Class counsel”) because they are qualified to and will diligently 

prosecute this action and will fairly and adequately represent the interests of the Class. 

The Court should enter a Class-wide temporary restraining order (TRO) and preliminary 

injunction because the Class is likely to succeed on the merits of its RFRA and First Amendment 

claims; the 1,200+ Class members face irreparable harm; the balance of hardships weighs in 

favor of the Class; and Class-wide relief would not be adverse to the public interest. The issues 

presented are urgent and straightforward. The military cannot even deny it discriminates on the 

basis of religion. It just believes it can do so legally. It cannot. The Court should issue expedited 

Class-wide relief.

 

1

The Doster court first issued a TRO before it issued a preliminary injunction. See Doster v. 

Kendall, 2022 WL 2760455, at *10 (S.D. Ohio July 14, 2022).

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II. BACKGROUND

On August 24, 2021, Defendant Austin issued a COVID-19 vaccine mandate. Ex. 20 to 

Stone Decl., Appx 139. Also in August 2021, the then-Commandant of the Coast Guard, Karl 

Schultz, issued a COVID-19 vaccine mandate. Ex. 21 to Stone Decl., Appx 141.

Plaintiffs Stone, Jackson, and Marcenelle timely sought, and the Defendants denied, 

religious accommodations to the COVID-19 vaccine mandates. Stone Decl., ¶¶ 24-26, Appx 21-

24; Jackson Decl., ¶¶ 28-31, Appx 6-7; Marcenelle Decl,, ¶¶ 14-17, 22-28, Appx 233-237. 

Plaintiffs appealed, and the Coast Guard denied (or purported to deny2) those appeals.

Like other branches of the military, the Coast Guard has granted zero religious 

accommodations to the COVID-19 vaccine mandates (except for some service members already 

slated for separation or retirement) while it has granted medical exemptions including permanent 

medical exemptions. Specifically,3the Coast Guard has denied more than 1,200 religious 

accommodation requests. The Coast Guard claims to have “approved” 12 religious 

accommodation requests but those are for service members already slated for separation or 

retirement. Requena Decl., ¶7, Appx 286; Stone Decl., ¶ 40, Appx 29; Jackson Decl., ¶ 48, Appx 

170; Marcenelle Decl, ¶¶ 48, Appx 242. The Coast Guard claims it has denied 16 and granted at 

 

2

See Complaint, Count IV.

3 All of the service branches are less than transparent in their disclosure of relevant information 

about vaccination and their denial of religious accommodation requests, but the Coast Guard 

may be the least transparent. Unlike some of the other service branches, the Coast Guard has not 

voluntarily, publicly, or periodically updated its vaccination statistics. The Middle District of 

Florida ordered each branch to file three bi-weekly updates, on January 7, 2022, January 21, 

2022, February 4, 2022. See Navy Seal 1 v. Austin, No. 8:21-cv-02429 (M.D. Fla), Doc. 40 and 

90. Some service branches continued to provide public updates of their statistics beyond 

February 4, 2022, at least for a period of time, but the Coast Guard has not. The Coast Guard 

religious-accommodation-request and medical-exemption-request statistics cited here are based 

on statistics the Coast Guard filed on August 30, 2022 in Bazzrea v. Mayorkas, No. 3:22-cv-265 

(S.D.Tex), Doc. 22-8, and, to the extent not identified in that document, Defendant Fagan’s U.S. 

Senate Committee testimony in May 2022 (https://www.youtube.com/watch?v=D6V2caVZ6S0; 

https://www.commerce.senate.gov/services/files/1510A348-949C-42DF-875F-96563B200383).

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least eight permanent medical exemption requests. The Coast Guard does not claim to have 

denied any temporary medical exemptions requests (or claims that the number is “unknown”) 

and acknowledges that it has granted at least 45 temporary medical exemption requests.

The Coast Guard also offers a blanket exemption for all COVID-19 clinical-trial 

participants. Exs. 20 and 21 to Stone Decl., Appx 139-142. The clinical trials need not be 

vaccine trials. Id. They could be trials of “treatments” or “changes to participants’ behavior, such 

as diet.”4Even in vaccine trials, a participant may receive a placebo instead of the vaccine.5

Additionally, as of July 25, 2022, the Coast Guard declared that unvaccinated service 

members are not “worldwide deployable” and must be involuntarily separated for that reason. 

Ex. 16 to Stone Decl., Appx 132; and Stone Decl. ¶¶ 27-30, 32, Appx 24-27. But Defendants 

have an express policy for retaining non-worldwide deployable members on a case-by-case 

basis. DoD Instruction 1332.45.6 And two superior officers who work with Plaintiff Stone are 

non-worldwide deployable for other reasons and yet are permitted to remain to remain in the 

Coast Guard. Stone Decl. ¶ 31, Appx 26.

A year ago, it was widely reported that the Coast Guard instructed chaplains assessing 

religious requests to challenge religious objectors to see if the religious objection was a “ruse” 

while apparently no such instruction was given to those assessing medical or other secular 

requests.7The process of requesting a religious accommodation was itself a ruse. The Inspector 

General of the Department of Defense itself recently found the military’s religious 

 

4 https://clinicaltrials.gov/ct2/about-studies/learn#ClinicalTrials.

5

Id.; Navy SEALs 1-26 v. Biden, 578 F. Supp. 3d 822, 837 (N.D. Tex. 2022). And even in a 

COVID-19 vaccine trial, the vaccine could be one other than those Defendants are mandating 

here.

6

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133245p.pdf?ver=2018-08-

01-143025-053.

7

See, e.g., https://americanmilitarynews.com/2021/09/coast-guard-to-scrutinize-membersrequesting-religious-exemptions-for-mandatory-covid-vaccine-leaked-document-reveals/.

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accommodation process is unlawful. Stone Decl. ¶ 40, Appx 29-30. Plaintiff Stone’s 

commanding officer, for example, said that he did not want to discuss religious beliefs because 

“they didn’t matter” to him and prepared a blanket negative endorsement of all religious 

accommodation requests submitted to him; and Stone has been forbidden reconsideration despite 

transferring (under a “needs of the Service”) waiver from a ship to an intelligence position. Stone 

Decl., ¶ 27, Appx 12. Plaintiff Marcenelle’s commander issued Marcenelle a medal for his 

superior performance leading missions and using his unique law-enforcement background to deescalate a dangerous conflict, and less than a week later issued Marcenelle a formal reprimand 

for being unvaccinated during that same period of superior performance. Marcenelle Decl., ¶ 35, 

Appx 239. And Plaintiff Jackson has experienced similar contradictory treatment. Jackson Decl. 

¶¶ 5, 19, 37, Appx 163, 165, 169.8

Plaintiffs seek certification of the Class, appointment of Class counsel, and a Class-wide 

TRO and preliminary injunction. The proposed Class consists of all members of the United 

States Coast Guard who (a) are subject to a mandate of the Department of Defense or Coast 

Guard to receive a COVID-19 vaccine, (b) submitted a request for religious accommodation 

regarding such mandate based on a sincerely held religious belief, and (c) have received or will 

receive a final denial of such request from the Department of Defense or Coast Guard. Plaintiffs 

request a TRO and a preliminary injunction on behalf of the Plaintiffs and the Class as a whole. 

III. CLASS CERTIFICATION

A. LEGAL STANDARD

“The decision to certify is within the broad discretion of the court, but that discretion 

must be exercised within the framework of rule 23.” Navy Class Order, 2022 WL 1025144, at *2

 

8 Additionally, none of their final denial letters were signed by the proper authority, the Assistant 

Commandant for Human Resources. Complaint, Count IV.

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(quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996)). The Court can certify a 

class if a plaintiff representative establishes that the proposed class is adequately defined and 

clearly ascertainable, meets the requirements of Rule 23(a), and demonstrates that the class is 

one of the types of class actions listed in Rule 23(b). Id.

Rule 23(a) provides:

One or more members of a class may sue or be sued as representative parties on behalf of 

all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or 

defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a) (emphasis added). 

Rule 23(b) provides in relevant part: “A class action may be maintained if Rule 23(a) is 

satisfied and if... (2) 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.” Frequently, analysis under Rule 23 may “entail 

some overlap with the merits of the plaintiff’s underlying claim.” Navy Class Order, 2022 WL 

1025144, at *5 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)). 

B. THE COURT SHOULD CERTIFY THE CLASS

1. The Class is adequately defined and clearly ascertainable.

The Class is more than adequately defined and is clearly ascertainable. Navy Class Order, 

2022 WL 1025144, at *2; DeOtte v. Azar, 332 F.R.D. 188, 196-97 (N.D. Tex. 2019). Defendants 

are well aware of who has submitted a request for religious accommodation and to whom they 

have issued a final denial. Id. Defendants also will know to whom they issue a final denial in the 

future. DeOtte, 332 F.R.D. at 196-97. The procedures Defendants established for applying for 

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and receiving both initial and final denials from the vaccine mandates are extensive and formal. 

See Exhibits to Plaintiffs’ Declarations, Appx 244-254, 46-51, 55-64, 172-173, 178-181, 263-

265, 277-278. Before issuing a final determination on a request for accommodation, Defendants 

require submission of a completed set of materials, twice. Id. Moreover, each final denial (the 

triggering event rendering someone a Class member) is documented in a communication from a 

superior officer. Id. Class membership is therefore instantly and permanently ascertainable by 

both the Defendants and potential Class members. 

The Coast Guard has already certified that it can identify the number of individuals who 

are in each stage of the process of applying for religious accommodation, in sworn submissions 

required by the United States District Court for the Middle District of Florida. See fn. 3 above. 

There is no way to count such individuals unless their identities are ascertainable.

Moreover, the proposed class includes all service members who object to the mandated 

“based on a sincerely held religious belief,” and the Coast Guard does not dispute that Plaintiffs 

have a sincerely held religious belief (or that it has burdened their free exercise). See Exhibits to 

Plaintiffs’ Declarations, Appx 52-54, 126, 175-177, 180, 272-274, 279. To Plaintiffs’ 

knowledge, the Coast Guard has not disputed the sincerity of any religious objectors’ beliefs (or 

the burden on their free exercise). And “[i]t hardly requires restating that the government has no 

role in deciding or even suggesting whether the religious ground for [petitioner’s] consciencebased objection is legitimate or illegitimate.” Masterpiece Cakeshop Ltd. v. Colorado Civil 

Rights Comm’n, 138 S. Ct. 1719, 1731 (2018). Yet even if individualized Class membership 

assessments were necessary at a later time to determine who had sincerely held religious beliefs, 

the Class is more than adequately defined. See, e.g., Vita Nuova, Inc. v. Azar, No. 4:19-CV00532-O, 2020 WL 8271942, at *4 (N.D. Tex. Dec. 2, 2020) (“defining the class based on the 

Case 4:22-cv-00825-P Document 5 Filed 09/16/22 Page 14 of 33 PageID 100
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religious belief of the class members does not render the class unable to be ascertained.”); Bear 

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

upholds class certification even when a definition necessitates individualized membership 

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

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

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

“Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class 

whose claims they wish to litigate,” and it involves “four requirements—numerosity, 

commonality, typicality, and adequate representation.” Dukes, 564 U.S. at 349. Plaintiffs and the 

Class satisfy these requirements.

a. The Class is so numerous that joinder of all members is 

impracticable.

There is no fixed number of members that satisfies the numerosity rule, but courts 

regularly certify classes with far fewer than the number of potential class members here. See, 

e.g., Mullen, 186 F.3d at 624 (“The size of the class in this case—100 to 150 members—is 

within the range that generally satisfies the numerosity requirement.”). “However, the actual 

number of class members is not necessarily the determinative question, for the proper focus 

(under Rule 23(a)(1)) is not on numbers alone, but on whether joinder of all members is 

practicable in view of the numerosity of the class and all other relevant factors.” Navy Class 

Order, 2022 WL 1025144, at *4 (quoting Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 

1038 (5th Cir. 1981)) (cleaned up).

The Coast Guard has received more than 1,200 religious accommodation requests and 

has granted none of them (except for those already slated for separation or retirement). Joinder of 

all class members is impractical. Plaintiffs satisfy the numerosity requirement.

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b. There are questions of fact and law common to the Class.

The test for commonality “is not demanding.” Mullen, 186 F.3d at 625. Issues common to 

all members of the Class include:

 Whether the Coast Guard has not conducted individualized assessment of Class 

members’ religious accommodation requests, which demonstrates a pattern of 

disregard for RFRA and/or First Amendment rights. Navy Class Order, 2022 WL 

1025144, at *4; Navy Seals 1-26 v. Biden, 27 F.4th 336 (5th Cir. 2022); Doster v. 

Kendall, 2022 WL 4115768, at *5 (6th Cir. Sept. 9, 2022).

 Whether all religious accommodation requests the Coast Guard claims to have 

approved are for service members already slated for separation or retirement.

 Whether the Coast Guard has a policy, practice, or procedure of not conducting 

“to the person” assessment to which service members are entitled under RFRA 

and/or the First Amendment.

 Whether the Coast Guard can demonstrate that it has a compelling interest in 

denying any, or all, religious exemptions from the mandates when the Coast 

Guard is almost universally vaccinated, COVID-19 vaccination does not prevent 

COVID-19 infection or transmission, the CDC acknowledges that the vaccinated 

and unvaccinated should be treated the same, and the Coast Guard grants 

exemptions for secular purposes.

 Whether the Coast Guard can demonstrate that vaccination of a religious service 

member is the least restrictive means of preventing the spread of COVID-19 when 

the Coast Guard is almost universally vaccinated, COVID-19 vaccination does 

not prevent COVID-19 infection or transmission, the CDC acknowledges that the 

vaccinated and unvaccinated should be treated the same, and the Coast Guard 

grants exemptions for secular purposes.

Resolution of any one these common issues, and especially all of them, would resolve “in 

one stroke” a question that is “central to the validity of each class member’s claim.” Dukes, 564 

U.S. at 350. Put another way, all Class members have suffered a common injury that is 

susceptible to Class-wide resolution: wrongful denial of religious accommodation requests 

pursuant to an illegal policy, practice, or procedure. See id.

Commonality may also be demonstrated by showing that the defendants “operated under 

a general policy of discrimination.” Id. at 353 (quoting Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 

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147, 159 n.15 (1982)). This is precisely what Plaintiffs have alleged: a general policy of 

discriminating against religious service members in violation of RFRA and the First 

Amendment. As this Court held in the Navy case:

Here, the potential class members have suffered the “same injury,” arising from 

violations of their constitutional rights. Each has submitted a religious accommodation 

request, and each has had his request denied, delayed, or dismissed on appeal. Exactly 

zero requests have been granted. And while Defendants encourage this Court to disregard 

the data, it is hard to imagine a more consistent display of discrimination.

Navy Class Order, 2022 WL 1025144, at *5. See also Doster, 2022 WL 2760455, at *5; Marines 

Class Order, 2022 WL 3643512, at *12; Doster, 2022 WL 4115768, at *3 (noting allegations of 

a “‘systematic effort’ by the Department [of Defense] to deny service members’ requests for 

religious exemptions categorically,” while granting secular exemptions).

This was confirmed in the recent publication of a Memo issued by the Department of 

Defense Inspector General (“Inspector General Memo”) after his office investigated the 

military’s process for assessing requests for religious accommodations to the COVID-19 vaccine 

mandate. Ex. 26 to Stone Decl. ¶ 40, Appx 152-156. As this Court in the Navy case found and 

other courts have found, the Inspector General “found a trend of generalized assessments rather 

than the individualized assessment that is required by Federal law and DoD and Military Service 

policies.” Id.

9 He also concluded that, at most, “the average review period was about 12 minutes 

for each package,” which is likely “insufficient to process each request in an individualized 

manner.” Id.

 

9

Indeed, none of the Plaintiffs’ appeal denial memoranda mention the Plaintiffs’ respective 

duties, individual health risks, natural immunity, compliance with mitigation protocols, 

availability of less restrictive means, additional facts and arguments submitted in plaintiffs’ 

respective appeal memoranda, or a statement of the Coast Guard’s alleged compelling interest in 

denying an accommodation to the respective Plaintiffs.

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The military including the Coast Guard has manifestly operated under a general policy of 

discrimination in violation of RFRA and the First Amendment.

c. Plaintiffs’ claims are typical.

“Like commonality, the test for typicality is not demanding. It ‘focuses on the similarity 

between the named plaintiffs’ legal and remedial theories and the theories of those whom they 

purport to represent.’” Navy Class Order, 2022 WL 1025144, at *6 (quoting Mullen, 186 F.3d at 

625). “The commonality and typicality requirements of Rule 23(a) tend to merge.” Navy Class 

Order, 2022 WL 1025144, at *6 (quoting Falcon, 457 U.S. at 158 n.13).

Plaintiffs’ claims are typical. They are members of the Coast Guard; they are purportedly 

subject to mandates to receive a COVID-19 vaccine; they submitted requests for religious 

accommodation regarding such mandates based on sincerely held religious beliefs; they received 

final denials; no compelling interest justifies the mandate; and Defendants cannot show that 

vaccination is the least restrictive means, i.e., actually necessary by comparison to alternative 

measures, of pursuing any conceivable compelling interest. 

Even if there may be circumstances unique to these Plaintiffs or unique to a certain subset 

of the Class, class members have the same essential characteristics. See Navy Class Order, 2022 

WL 1025144, at *7 (“Factual differences do not defeat typicality. All members of the class have 

unsuccessfully requested religious accommodation. The Named Plaintiffs’ claims ‘have the same 

essential characteristics’ of the Navy Class and subclasses. See James [v. City of Dallas], 254 

F.3d [551,] 571 [(5th Cir. 2001)]. Thus, despite factual differences, the Named Plaintiffs’ causes 

of action are typical of the class.”).

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d. Plaintiffs will fairly and adequately protect the interests of the 

Class.

“Under the adequacy requirement, courts consider ‘(1) the zeal and competence of the 

representatives’ counsel; (2) the [willingness] and ability of the representatives to take an active 

role in and control the litigation and to protect the interests of absentees; and (3) the risk of 

conflicts of interest between the named plaintiffs and the class they seek to represent.” Navy 

Class Order, 2022 WL 1025144, at *7 (quoting Slade v. Progressive Sec. Ins., 856 F.3d 408, 412 

(5th Cir. 2017)). The commonality and typicality requirements “tend to merge with the 

adequacy-of-representation requirement, although the latter requirement also raises concerns 

about the competency of class counsel and conflicts of interest.” Dukes, 564 U.S. at 349 n.5

(quoting Falcon, 457 U.S. at 157-158, n. 13).

1) Counsel are zealous and competent.

Class counsel are zealous and competent. As experienced religious liberty advocates with 

the backing of a longstanding, national public interest law firm, Plaintiffs’ counsel will diligently 

prosecute the case on behalf of Plaintiffs and the entire Class. In appointing Class counsel, the 

Court must consider: (i) the work counsel has done in identifying or investigating potential 

claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, 

and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; 

and (iv) the resources that counsel will commit to representing the class. Fed. R. Civ. P. 

23(g)(1)(A).

i. Plaintiffs’ counsel have done substantial work identifying and investigating potential 

claims in this action and other related potential actions. See Hochschild Decl.; Jonna Decl.; 

Hodes Decl. (“Attorney Declarations”). Six of Plaintiffs’ attorneys listed below are associated 

with the Thomas More Society, a national religious-liberty law firm that is able to provide pro 

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bono representation to its clients. As such, counsel have been contacted, both before and during 

the current action, by many members of the Coast Guard and other branches of the military with 

interests similar to Plaintiffs’. Hochschild Decl. ¶ 12.

ii. Counsel have substantial experience in handling class actions, other complex litigation, 

and the types of claims in this case, as detailed, for example, in the Attorney Declarations. These 

attorneys alone10 have served as counsel in numerous different class actions and, as Thomas 

More Society attorneys, have engaged extensively in litigation involving religious liberty and 

First Amendment rights, among other complex subject matters. See Attorney Declarations. For 

example, these attorneys represent Air Force service members in Air Force Officer v. Austin, No. 

5:22-CV-00009-TES, 2022 WL 468799 (M.D. Ga. Feb. 15, 2022). In that case, these attorneys 

obtained a first-in-the-nation preliminary injunction on behalf of an Air Force service member 

and have pending motions seeking class-wide relief. (That case is currently stayed pending final 

resolution of Doster in which a court granted class-wide relief to religious airmen). Also, Mr. 

Jonna, for example, successfully represented numerous churches in litigation arising out of the 

COVID-19 restrictions on houses of worship. Jonna Decl., ¶ 6. One of those cases, which Mr. 

Jonna argued at the District Court level three times, resulted in an historic win when the Supreme 

Court struck down California’s indoor worship ban. See id.; South Bay United Pentecostal 

Church, et al. v. Gavin Newsom, et al., 141 S. Ct. 716 (2021). Mr. Jonna also helped successfully 

delay the vaccine mandate imposed by the San Diego Unified School District in Doe v. San 

Diego Unified Sch. Dist., 142 S.Ct. 1099, 2022 WL 498812 (Feb. 18, 2022) (denying application 

without prejudice due to cessation of mandate); Jonna Decl. ¶ 11.

 

10 While Plaintiffs believe the three attorney declarations submitted herewith are more than 

sufficient to show counsel’s adequacy, the other four attorneys for Plaintiffs listed below also 

have substantial relevant experience and can submit declarations of their own upon the Court’s 

request. 

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iii. Counsel are well-versed in the applicable law, as evidenced by their experience and 

success in the related Air Force Officer case, and by their experience in numerous other religious 

liberty cases as attorneys with the Thomas More Society. See Attorney Declarations.

iv. As attorneys associated with the Thomas More Society, counsel can commit any and 

all necessary resources to representing the Class. See Attorney Declarations.

2) Plaintiffs are willing and able to serve as class 

representatives.

Plaintiffs are willing and able to take an active role in and control the litigation and to 

protect the interests of all Class members. See attached declarations of Plaintiffs. They all have a 

strong personal interest in vindicating their legal rights, including their fundamental religiousliberty rights, and the same legal rights of all similarly situated fellow service members. Id.

3) No conflict exists.

Nothing in the record suggests any conflicts between Plaintiffs and the Class. See Navy 

Class Order, 2022 WL 1025144, at *7-8. Plaintiffs are aware of some other cases involving 

Coast Guard service members, but to Plaintiffs’ knowledge there is no motion for class-wide 

relief pending in those cases, and they otherwise present no conflict. As this Court explained in 

the Navy case:

Simultaneous litigation in other courts does not present a conflict here. To the contrary, 

the injunctive relief that Plaintiffs seek will benefit all religiously opposed Navy 

servicemembers who are presently involved in other vaccine mandate litigation. Potential 

class members will not be harmed by class-wide relief.

Id. The same reasoning applies here. There’s no conflict.

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3. Plaintiffs and the Class satisfy the requirements of Rule 

23(b)(2).

The Court should certify the Class under Rule 23(b)(2) because Defendants have “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.” Fed. R. Civ. P. 

23(b)(2). As this Court held in the Navy case, “By uniformly denying potential class members’ 

religious accommodation requests, the Navy has ‘acted . . . on grounds that apply generally to the 

class.’ And because potential class members may receive relief from a single injunction, the 

claim is appropriate for class-wide resolution under Rule 23(b)(2).” Navy Class Order, 2022 WL 

1025144, at *9. Further, this is a civil rights case, and “[c]ivil rights cases against parties charged 

with unlawful, class-based discrimination are prime examples” of lawsuits permitted under Rule 

23(b)(2). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Accordingly, Plaintiffs 

have met the requirements of Rule 23(b)(2); accord Doster, 2022 WL 4115768, at *5.

IV. APPOINTMENT OF CLASS COUNSEL

The Court should appoint Plaintiffs’ counsel as Class counsel under Rule 23(g). An order 

that certifies a class action must appoint class counsel under Rule 23(g). Fed. R. Civ. P. 

23(c)(1)(B). As set forth in the attached attorney declarations and as discussed above in Section 

II.B.2.d(1), Plaintiffs’ counsel is qualified to and will diligently prosecute this action. Fed. R. 

Civ. P. 23(g)(1)(A). Plaintiffs’ counsel will “fairly and adequately represent the interests of the 

class.” Fed. R. Civ. P. 23(g)(1)(B). The Court should therefore appoint Plaintiffs’ counsel as 

Class counsel.

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V. CLASS-WIDE TRO AND PRELIMINARY INJUNCTION

A. LEGAL STANDARD

A TRO or preliminary injunction is appropriate where, as here, plaintiffs establish “(1) a 

substantial likelihood of success on the merits, (2) a substantial threat of irreparable harm, (3) the 

balance of hardships weighs in the movants’ favor; and (4) the requested relief will not disserve 

the public interest.” Navy Class Order, 2022 WL 1025144, at *3; Woodruff v. Caris MPI, Inc., 

No. 3:21-CV-2993-B, 2021 WL 5760506, at *1 (N.D. Tex. Dec. 3, 2021). The same standard 

applies to both a request for a TRO and a request for a preliminary injunction. Id. at *1 n.2.. 

Plaintiffs and the Class satisfy the standard.

B. THE COURT SHOULD ISSUE A CLASS-WIDE TRO AND 

INJUNCTION

The Court should grant Class-wide relief for the same reason it granted Class-wide relief 

in the Navy case: it is indisputable that Defendants as a policy deny religious exemptions to the 

COVID-19 vaccination while they grant medical accommodation requests. Navy Class Order, 

2022 WL 1025144, at *1, 11-12. The Coast Guard also, for example, grants secular exemptions 

to the “worldwide deployability” standard. 

The Class here is likely to succeed on the merits of its RFRA and First Amendment 

claims, just as the Court found the Navy class is; the 1,200+ Coast Guard Class members face 

irreparable harm as the Navy class members did; the balance of hardships weighs in the Class’s 

favor, as in the Navy case; and a Class-wide TRO and injunction would not be adverse to the 

public interest, like the Navy class-wide injunction. For all of these reasons, a Class-wide TRO 

and injunction are appropriate.

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1. The Court can and should hear Plaintiffs’ claims.

As a preliminary matter, federal courts are “empowered to adjudicate RFRA’s application 

to” service members such as Plaintiffs.” Navy Seals 1-26, 27 F.4th at 346. As the Fifth Circuit 

suggested, RFRA displaces judicial abstention doctrine for the same reasons it trumps the 

operation of other federal laws. Id. (citing Bostock v. Clayton County, 140 S. Ct. 1731 (2020)).11

2. The Class is likely to succeed on the merits of its RFRA and 

First Amendment claims.

The Class is likely to succeed on the merits of both its RFRA and First Amendment 

claims. As to the first claim, RFRA provides:

Government may substantially burden a person’s exercise of religion only if it 

demonstrates that application of the burden to the person—(1) is in furtherance of a 

compelling governmental interest; and (2) is the least restrictive means of furthering that 

compelling governmental interest.

 

11 Even were this Court to consider abstaining from adjudicating this case, it would find that 

Plaintiffs’ claims and those of the putative class easily meet the standard for justiciability of 

cases reviewing military decisions set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971). 

As a threshold matter, Plaintiffs allege that the military has deprived them of their constitutional 

right to free exercise of their religion in violation of RFRA and the First Amendment. See Navy 

Seals 1-26, 27 F.4th at 347. And, Plaintiffs are all in receipt of a final denial of their request for 

religious exemption, so they have exhausted their administrative remedies. Id. at 347 n.10; Air 

Force Officer, 2022 WL 468799, at *6.

Moreover, the Fifth Circuit and myriad other courts have recently decided that all four Mindes

factors favor justiciability of claims such as Plaintiffs’. See, e.g., Navy Seals 1-26, 27 F.4th at 

348. The loss of religious freedoms is “irreparable injury.” Id.; Opulent Life Church v. City of 

Holly Springs Miss., 697 F.3d 279, 295 (5th Cir. 2012). Any claim that the Coast Guard would 

be “seriously impeded” in the “performance of vital duties” by accommodating the Plaintiff class 

is logically undermined by the Coast Guard’s granting of secular exemptions without evident 

disruption in its operations. See Air Force Officer, 2022 WL 468799, at *7. Finally, no military 

expertise is implicated in the Coast Guard’s decisions to deny all religious exemptions. Indeed, 

quite the opposite: “Generals don’t make good judges—especially when it comes to nuanced 

constitutional issues.” Id. at *8 (quoted in Navy Seals 1-26, 27 F.4th at 349.). “Accordingly, even 

under Mindes, Plaintiffs’ claims are justiciable.” Navy Seals 1-26, 27 F.4th at 349. And the 

Supreme Court’s grant of a “partial stay” in Navy Seals 1-26 was not to the contrary, but merely 

limited the scope of the relief that could be granted given the unique circumstances of certain 

Navy Special Warfare soldiers. Austin v. Navy Seals 1-26, 142 S.Ct. 1301 (2022).

Case 4:22-cv-00825-P Document 5 Filed 09/16/22 Page 24 of 33 PageID 110
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42 U.S.C. § 2000bb-1. As this Court held in the Navy case, by making COVID-19 vaccination a 

condition of continued service in the military, Defendants have substantially burdened service 

members’ religious beliefs. Navy Class Order, 2022 WL 1025144, at *11. The same conclusion 

follows for the Plaintiffs here, all of whom likewise have undisputed sincerely held religious 

objections to COVID-19 vaccination and received final denials of their requests for religious 

accommodations from the military’s COVID-19 vaccine mandate. Stone Decl., ¶¶19-22, Appx 

19-21; Jackson Decl., ¶¶ 25-27, Appx 167; Marcenelle Decl, ¶¶ 10-13, Appx 233. 

The Coast Guard cannot point to a compelling governmental interest that justifies this 

substantial burden on the religious beliefs of service members. The Coast Guard claims a 

compelling governmental interest in vaccinating all service members and that it has individually 

assessed each religious accommodation request, but it has denied all religious requests (except 

for those already slated for separation or retirement), has granted many medical exemptions, and 

has a blanket exemption for clinical-trial participants. See Section I above. The Coast Guard’s 

willingness to grant such secular exemptions “belies this insistence on complete uniformity and 

widespread vaccination.” Navy Class Order, 2022 WL 1025144, at *12. It is “illogical” that 

Plaintiffs’ religious-based refusal to take a COVID-19 vaccine would seriously impede military 

function when the Coast Guard has numerous service members still on duty with secular 

exemptions “who are just as unvaccinated as the Plaintiffs.” Navy Seals, 27 F.4th at 349; Navy 

Class Order, 2022 WL 1025144, at *12; Air Force Officer, 2022 WL 468799, at *7. This is 

especially true now that the “CDC’s prevention recommendations no longer differentiate based 

on a person’s vaccination status,”12 and given that Plaintiffs have natural immunity.13

 

12 CDC, Summary of Guidance for Minimizing the Impact of COVID-19..., August 2022, 

www.cdc.gov/mmwr/volumes/71/wr/mm7133e1.htm (stating also that the primary series of 

COVID-19 vaccination “provides minimal protection against infection and transmission”).

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Coast Guard authorities have otherwise exhibited a clear intent to unlawfully discriminate 

against religious service members. For example, Plaintiff’s Stone’s commanding officer stated 

that religious beliefs “didn’t matter” to him,14 prepared a blanket negative endorsement of all 

religious accommodation requests submitted to him, and refused to even discuss possible means 

of accommodation. Stone Decl., ¶ 23, Appx 21. Defendants then denied Stone’s requested 

accommodation purportedly because of risks of being aboard a populated ship—but they refused 

to reconsider his request when he transferred to a shore-based intelligence position (which he 

was allowed under a “needs of the Service” exception to a policy otherwise prohibiting such 

transfers for unvaccinated service members). Id. ¶¶ 27, 32, Appx 12-13, 14-15 .The fundamental 

discriminatory illegality of the entire process is sufficient to make it probable that each and every 

denial of a religious accommodation to a Class member fails to satisfy strict scrutiny. Navy Class 

Order, 2022 WL 1025144, at *12; Marines Class Order, 2022 WL 3643512, at *16; Air Force 

Class Order, 2022 WL 2974733, at *10. Such bias alone is enough for the class to prevail. 

Doster, 2022 WL 4115768, at *4.

15

 

13 Hall, Victoria et al., Protection against SARS-CoV-2 after COVID-19 Vaccine and Previous 

Infection, The New England Journal of Medicine, March 31, 2022, 

https://www.nejm.org/doi/full/10.1056/NEJMoa2118691 (showing that natural immunity from 

COVID-19 endures longer than vaccine immunity); see also CDC, Science Brief: SARS-CoV-2 

Infection-induced and Vaccine-induced Immunity, Oct. 29, 2021 (“The immunity provided by 

vaccine and prior infection are both high but not complete”; also noting meta-analysis finding 

“no significant difference in the overall level of protection provided by” each), 

www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/vaccine-induced-immunity.html.

14 Cf. Air Force Officer, 2022 WL 468799, at *1, *1 n.1 (“‘Your religious beliefs are sincere, it’s 

just not compatible with military service.’ This is how Plaintiff’s chain of command paraphrased 

why he thought she was denied a religious exemption from a COVID-19 vaccine. True, he 

undoubtedly spoke for himself, but when considering the Air Force’s abysmal record regarding 

religious accommodations requests, it turns out he was dead on target.”).

15 Additionally, Defendants’ failure to provide Plaintiffs’ with final denial letters issued by the 

proper authority is more evidence of discriminatory bias. Complaint, Count IV. See Beck v. 

University of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (procedural 

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Also notable is that the Inspector General Memo is dated June 2, 2022, but Defendant 

Austin’s letter forwarding it to his Under Secretary and military branch leaders for unspecified 

“appropriate action... as necessary and appropriate” is dated September 2, 2022—three months

after the Inspector General Memo was issued, during which period Defendants continued to 

reprimand and/or take steps to imminently discharge Plaintiffs for their religious refusal to obtain 

COVID-19 vaccination. Ex. 26 to Stone Decl, Appx 152-156. Defendants have taken no action 

to remedy the unlawful policy the Inspector General identified.

Moreover, the fact Defendants have “chos[en] to grant” year-long “temporary 

exemptions to service members” like these Plaintiffs without incident (Doster, 2022 WL 

4115768, at *6), is itself evidence against the government’s “contention that its [COVID-19 

vaccine] policies can brook no departures,” Fulton v. Philadelphia, 141 S.Ct. 1868, 1882 (2021). 

Even if Defendants could demonstrate lack of discrimination or an applicable compelling 

interest (which they cannot), they cannot demonstrate that the mandate is the least restrictive 

means of furthering a compelling interest. The military claims that it requires all service 

members to be “worldwide deployable,” that declining the shot renders a service member not 

“worldwide deployable,” and therefore that the shot is the least restrictive means. The military is 

mistaken. First, the military does not in fact require that all service members be “worldwide 

deployable.” For example, two officers in Plaintiff Stone’s own office are not “worldwide 

deployable”: one cannot receive a mandated vaccine for another disease due to medical 

complications; the other periodically takes a certain refrigerated medication that is not 

guaranteed to be accessible worldwide. Stone Decl., ¶¶ 31, Appx 14. Second, being unvaccinated 

against COVID-19 does not render a service member not “worldwide deployable.” As the 

 

improprieties in disability accommodation process can be evidence of “bad faith”); accord 

Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir. 1999).

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Middle District of Florida held in the Marines case, the military “cannot evade RFRA by 

defining the conditions of service to exclude the possibility of an accommodation. This 

definitional sleight of hand evades the inquiry that RFRA demands: whether the Marine Corps’s 

generalized interest in worldwide deployability is materially impaired by tolerating a few 

religious objectors and accommodating their continued service to the Marine Corps despite the 

generalized policy of worldwide deployability.” Marines Class Order, 2022 WL 3643512, at *17.

In any event, Defendants have not otherwise shown and cannot show that the mandate is 

the least restrictive means of furthering a compelling governmental interest. This is exemplified 

by the Coast Guard’s lack of compelling interest and of narrow tailoring in applying the 

mandates in the specific circumstances of the three Plaintiffs here. They are accomplished 

service members who have honorably served this country. Stone Decl., ¶¶ 4-20, Appx 12-20; 

Jackson Decl., ¶¶ 3-7, Appx 162-163; Marcenelle Decl, ¶¶ 3-7, 35, Appx 231-232, 239. Their 

service has been exemplary throughout the pandemic, both before and after the vaccine became 

available, they were recognized for their superior performance despite having contracted 

COVID-19 themselves in the previous two years, and the Coast Guard has successfully counted 

on them to continue their missions, often while their vaccinated coworkers (and the Commander 

in Chief and Defendant Austin) quarantined with COVID-19. Stone Decl., ¶¶ 4-20, Appx 12-20; 

Jackson Decl., ¶¶ 3-7, 20-21, Appx 162-163, 165-166; Marcenelle Decl, ¶¶ 3-7, Appx 231-232. 

Meanwhile, the alternative precautions the Coast Guard makes available and deems 

sufficient for its service members with secular exemptions are plainly available to the three 

Plaintiffs as well. Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020). And, 

with the passage of time, the mandates have become increasingly less defensible as the CDC, to 

which the military claims to defer, updates its prevention guidelines to recognize that the 

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vaccinated and unvaccinated should be treated the same,16 the effectiveness of certain alternative 

precautions and natural immunity become more clear,17 and the effectiveness of COVID-19 

vaccination becomes more doubtful.18 These factors make it ever less likely that mandatory 

vaccination of the relatively small proportion of service members who cannot receive it for 

religious reasons is “actually necessary” (as it must be) to achieve the military’s interests. See 

Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 799 (2011).

19

Further, Plaintiffs’ religious accommodation requests were all denied because of the mere 

hypothetical possibility that they could become seriously ill and undermine military readiness. 

Ex. 10 to Stone Decl., Appx 52-54; Ex. 1 to Jackson Decl., Appx 172-173; Ex. 4 to Marcenelle 

Decl., Appx 272-274. But “[s]uch speculation is insufficient to satisfy strict scrutiny.” Fulton, 

141 S. Ct. at 1882; Ramirez v. Collier, 142 S. Ct. 1264, 1280 (2022) (“conjecture” about 

“hypothetical” occurrences “in some future case” insufficient to satisfy RFRA’s “sister statute” 

in prison context). And indeed, there is no actual “indication in the record that [Plaintiffs] would 

cause the sorts of disruptions that respondents fear.” Ramirez, 142 S. Ct. at 1280. 

 

16CDC, supra n.13.

17 Id.; CDC, Types of Masks and Respirators – Summary of Recent Changes, Jan 28, 2022 

“Masks and respirators are effective at reducing transmission of SARS-CoV-2 . . . when worn 

consistently and correctly,” and N95 masks “filter at least 95% of particles in the air”), 

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html. 

18 See, e.g., Elie Dolgin, “Omicron thwarts some of the world’s most-used COVID vaccines,” 

Nature, Jan. 13, 2022, https://www.nature.com/articles/d41586-022-00079-6; CDC, COVID-19, 

Omicron Variant: What You Need to Know (“[A]nyone with Omicron infection can spread the 

virus to others, even if they are vaccinated.”). Notably, the Commander in Chief and Defendant 

Austin, for example, have each at least twice contracted COVID-19 while being vaccinated. See, 

e.g, https://www.politico.com/news/2022/08/15/defense-secretary-austin-tests-positive-forcovid-00051887.

19 See also Doc. 131-1 filed March 9, 2022, in Navy Seal 1 v. Austin, No. 8:21-cv-02429-SDMTGW (M.D. Fla.) (quoting commander who acknowledged more than six months ago that 

“[w]ith high levels of population immunity from both vaccinations and infections, the risk of 

medically significant disease, hospitalization, and death from COVID-19 has been greatly 

reduced”).

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For these reasons, the Class is likely to prevail on the merits of its claim that application 

of the mandate to the entire Class violates RFRA. 

The Class is also likely to succeed on its First Amendment claim. The Coast Guard has 

granted at least 45 secular exemptions—that is, 45 or more medical exemptions and an unknown 

number of clinical-trial-participation exemptions and —and has not approved any or essentially 

any of the 1,200+ religious accommodation requests (with at least 881 final denials). In other 

words, the Coast Guard is considering and granting secular requests while it is not properly 

considering and is then denying all or essentially all religiously based requests. See also DoD 

Instruction 1332.45 discussed above. By treating religious-based accommodation requests less 

favorably than secular requests, the Coast Guard is implementing the mandates in a manner that 

is not neutral toward, and indeed strongly disfavors, religion. Navy Class Order, 2022 WL 

1025144, at *12; See Doster, 2022 WL 4115768, at *5 (citing Masterpiece Cakeshop, 138 S. Ct. 

at 1731). Plaintiffs have all sought and been finally denied religious accommodations from the 

military’s COVID-19 vaccine mandate, while fellow Coast Guard service members have been 

allowed exemptions for secular reasons. Strict scrutiny thus applies, and the Mandates fail the 

strict scrutiny required by the First Amendment for the same reasons they cannot satisfy it under 

RFRA, as explained above.

3. Irreparable injury will result absent relief.

Plaintiffs face irreparable harm. Defendants are applying monumental pressure on 

thousands of service members to violate their religious beliefs by threatening to end their careers 

in the Coast Guard if they do not forsake them, in violation of RFRA and the Constitution. Navy 

Class Order, 2022 WL 1025144, at *11. Indeed, in the form letter denying service members’ 

religious accommodation requests, service members are informed that they are “subject to all 

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24

punitive and administrative consequences for failing to comply.” See initial denial letters, 

exhibits to Plaintiffs’ Declarations, Appx 54, 177, 274. “Plaintiffs have suffered the serious 

injury of infringement of their religious liberty rights under RFRA and the First Amendment.” 

Navy Class Order, 2022 WL 1025144, at *5. “The crisis of conscience imposed by the mandate 

is itself an irreparable harm . . . The loss of First Amendment freedoms, for even minimal 

periods of time, unquestionably constitutes irreparable injury.” Id. at *5 (internal citations and 

quotation marks omitted). As such, irreparable injury to the Class will result absent relief. Id. at 

*13.

4. The balance of hardships weighs in the Class’s favor, and a 

TRO or injunction will not disserve the public interest.

“The final two elements of the preliminary injunction standard—the balance of the harms 

and whether an injunction will disserve the public interest—must be considered together. ‘These 

factors merge when the Government is the opposing party.’ Id. at *13 (quoting Nken v. Holder, 

556 U.S. 418, 435 (2009)). Like the Navy class-wide injunction, a TRO or injunction here would 

“not disserve the public interest because it prevents constitutional deprivations.” Id. And 

“Plaintiffs’ loss of religious liberties outweighs any [purported] forthcoming harm” to the Coast 

Guard. Id. As of May 2022, approximately 98% of active-duty Coast Guard service members are 

vaccinated.20 Any harm the Coast Guard may claim to suffer in the future is speculative. The 

public interest lies squarely on the side of retaining these service members who are currently 

engaged in protecting and defending our country and contributing to military readiness, 

especially given the serious recruiting problems the military is facing. Stone Decl., ¶ 35, Appx 

28-29.

 

20 www.commerce.senate.gov/services/files/1510A348-949C-42DF-875F-96563B200383.

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VI. CONCLUSION

Class-wide relief would allow 1,200+ service members to remain in service or be 

reinstated, maintaining the strength of the military while simultaneously protecting the 

fundamental religious rights of service members. The Court should therefore certify the Class, 

appoint Plaintiffs’ counsel as Class counsel, and issue a TRO and preliminary injunction in favor 

of Plaintiffs and the Class. 

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Dated: September 16, 2022

Respectfully submitted,

/s/ Charles W. Fillmore

Stephen Crampton* 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 McHale* (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*

mmchale@thomasmoresociety.org THOMAS MORE SOCIETY – Special Counsel

5101 Old Highway 5, Box 442

Adam S. Hochschild* 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*

THOMAS MORE SOCIETY – Special Counsel

112 S. Hanley Rd., Second Floor

Clayton, MO 63105

(314)825-5725

mchodes@thomasmoresociety.org

Paul M. Jonna*

LiMandri & Jonna LLP

THOMAS MORE SOCIETY – Special Counsel

P.O. Box 9120

Rancho Santa Fe, CA 92067

(858)759-994

pjonna@limandri.com

* pro hac vice applications forthcoming

Counsel for Plaintiffs

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