UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

ROBERT SCHELSKE, et al.,

Plaintiffs,

v.

LLOYD J. AUSTIN, III, in his official 

capacity as United States Secretary of Defense, 

et al,

Defendants.

 

 Case No. 6:22-cv-00049-H

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ SECOND 

MOTION TO DISMISS

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i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

I. Plaintiffs Reincorporate the Entirety of Their Prior Response.................................. 2

II. Standard of Review........................................................................................................ 2

ARGUMENT.................................................................................................................................. 2

I. Plaintiffs Received Orders to Vaccinate, Did Not Comply with Those Orders, 

and are Still Exposed to Punitive Actions as a Result—It is a Misrepresentation 

to this Court to Argue that any Such Punitive Actions are “Speculative,” as 

Proven by Record Evidence that Includes Defendants’ Own Admissions. ............ 2

II. Defendants Cannot Meet Their “Heavy Burden” to Prove Mootness Where, 

Admittedly, They Have Not Yet Afforded Plaintiffs Full Corrective Action 

Relief, Will Not Do So for Discharged Soldiers, and May Never Do So for the 

Putative Class of Plaintiffs...................................................................................... 6

III. Other Than Completing the RFRA Accommodation Process (Which Has Been 

Discontinued), There is No Further Ripeness/Exhaustion Requirement, and 

Defendants’ Arguments to the Contrary are Foreclosed Under Binding Fifth 

Circuit Precedent..................................................................................................... 9

IV. There is Ongoing, De Facto Discrimination by the Army, and Nothing Keeps 

Defendants from Reinstituting Another Unconstitutional Mandate with No 

Religious Accommodation Process Whatsoever or a Another Sham Process...... 12

A. Current Army policy and regulations violate RFRA. ............................... 13

B. Contrary to Defendants’ suggestions, this Court can direct operational, 

assignment, and deployment issues in a final judgement. ........................ 13

C. This case is a textbook case for application of the voluntary cessation 

doctrine. .................................................................................................... 14

D. The capable of repetition yet evading review exception to mootness 

also applies................................................................................................ 20

E. The class/pickoff exception applies.......................................................... 21

F. Cadet Bufkin’s claims are not subject a Motion to Dismiss..................... 22

CONCLUSION............................................................................................................................. 23

CERTIFICATE OF SERVICE ..................................................................................................... 24

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ii

TABLE OF AUTHORITIES

Cases

A. Philip Randolph Inst. v. Husted, 

838 F.3d 699 (6th Cir. 2016), rev’d on other grounds, 138 S. Ct. 1833 (2018)....................... 19

Able v. United States, 

155 F.3d 628 (2d Cir. 1998)...................................................................................................... 14

Adkins v. United States, 

68 F.3d 1317 (Fed. Cir. 1995)................................................................................................... 14

Already, LLC v. Nike, Inc., 

568 U.S. 85 (2013)........................................................................................................ 15, 17, 20

Austin v. U.S. Navy Seals 1-26, 

142 S. Ct. 1301 (2022) .............................................................................................................. 13

Bennie v. Munn, 

822 F.3d 392 (8th Cir. 2016)....................................................................................................... 5

Board of Education of Oklahoma City Public Schools v. Dowell, 

498 U.S. 237 (1991).................................................................................................................... 6

Bond v. United States, 

47 Fed. Cl. 641 (Ct. Cl. 2000)................................................................................................... 14

Borst v. Chevron Corp., 

36 F.3d 1308 (5th Cir. 1994)..................................................................................................... 11

Bowman v. Schwarzenegger, 

Case No. CIV S-07-2164 FCD KJM P, 2009 WL 799274 (E.D. Cal. Mar. 23, 2009)............... 5

Cf. United States v. Sanchez-Gomez, 

138 S. Ct. 1532 (2018) .............................................................................................................. 17

Chafin v. Chafin, 

568 U. S. 165 (2013)................................................................................................................... 7

Chen v. Allstate Ins. Co., 

819 F.3d 1136 (9th Cir. 2016)..................................................................................................... 9

Case 6:22-cv-00049-H Document 109 Filed 03/24/23 Page 3 of 32 PageID 2467
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City of Mesquite v. Aladdin’s Castle, Inc., 

455 U.S. 283 (1982)............................................................................................................ 15, 19

Clark v. Tarrant Cnty., 

798 F.2d 736 (5th Cir. 1986)................................................................................................. 2, 22

Ctr. for Individual Freedom v. Tennant, 

706 F.3d 270 (4th Cir. 2013)....................................................................................................... 5

Dailey v. Vought Aircraft Co., 

141 F.3d 224 (5th Cir. 1998)....................................................................................................... 4

Dean Foods Co. v. Tracy, 

990 F. Supp. 646 (W.D. Wis. 1997)............................................................................................ 5

Doe v. Trump, 

275 F. Supp.3d 167 (D.D.C. 2017) ........................................................................................... 14

Doster v. Kendall, 

48 F.4th 608 (6th Cir. 2022)........................................................................................................ 6

Doster v. Kendall, 

54 F.4th 398 (6th Cir. 2022)........................................................................................................ 5

Fed. Election Comm’n v. Wisconsin Right To Life, Inc., 

551 U.S. 449 (2007).................................................................................................................. 20

Fed’n of Advert. Indus. Representatives, Inc. v. City of Chicago, 

326 F.3d 924 (7th Cir. 2003)....................................................................................................... 7

Firefighters Local Union No. 1784 v. Stotts, 

467 U.S. 561 (1984).................................................................................................................... 5

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 

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

Frontiero v. Richardson, 

411 U.S. 677 (1973).................................................................................................................. 14

Genesis HealthCare Corp. v. Symczyk, 

569 U. S. 66 (2013)..................................................................................................................... 6

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Green v. County Sch. Bd. Of New Kent County, Va., 

391 U.S. 430 (1968).................................................................................................................... 6

Haselrig v. United States, 

53 Fed. Cl. 111 (Ct. Cl. 2002)................................................................................................... 14

Hunter v. Underwood, 

471 U.S. 222 (1985).................................................................................................................... 7

Marks v. United States, 

430 U.S. 188 (1977).................................................................................................................. 14

Mindes v. Seaman, 

453 F.2d 197 (5th Cir. 1971)............................................................................................... 10, 11

Miss. State Chapter, Operation Push, Inc. v. Mabus, 

932 F.2d 400 (5th Cir. 1991)....................................................................................................... 7

Murphy v. United States, 

993 F.2d 871 (Fed. Cir. 1993)................................................................................................... 14

Norman-Bloodsaw v. Lawrence Berkely Lab., 

135 F.3d 1260 (9th Cir 1998).................................................................................................... 17

Owens v. Brown, 

455 F. Supp. 29 (D.D.C. 1978) ................................................................................................. 14

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 

551 U. S. 701 (2007)................................................................................................................. 19

Perez v. Texas, 

970 F. Supp. 2d 593 (W.D. Tex. 2013)....................................................................................... 7

Philips v. Perry, 

106 F.3d 1420 (9th Cir. 1997)................................................................................................... 14

Ramming v. United States, 

281 F.3d 158 (5th Cir. 2001)....................................................................................................... 2

Ramsek v. Beshear, 

989 F. 3d 494 (6th Cir. 2021)...................................................................................................... 5

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Roman Catholic Diocese v. Cuomo, 

141 S. Ct. 63 (2020) .................................................................................................................. 17

Sacks v. Office of Foreign Assets Control, 

466 F.3d 764 (9th Cir. 2006)....................................................................................................... 5

Scarseth v. United States, 

46 Fed. Cl. 406 (Ct. Cl. 2000)................................................................................................... 14

Schelske v. Austin, 

2022 U.S. Dist. LEXIS 229432................................................................................................. 11

Schlesinger v. Ballard, 

419 U.S. 498 (1975).................................................................................................................. 14

Sibron v. New York, 

392 U.S. 40 (1968)...................................................................................................................... 5

Speech First, Inc. v. Fenves, 

979 F.3d 319 (5th Cir. 2020)..................................................................................................... 20

Speech First, Inc. v. Schlissel, 

939 F.3d 756 (6th Cir. 2019)..................................................................................................... 18

Tandon v. Newsom, 

141 S. Ct. 1294 (2021) .............................................................................................................. 19

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

137 S. Ct. 2012 (2017) .............................................................................................................. 15

Triplett v. Heckler, 

767 F.2d 210 (5th Cir. 1985)....................................................................................................... 4

Tucker v. Gaddis, 

40 F.4th 289 (5th Cir. 2022)...................................................................................................... 15

United States v. Concentrated Phosphate Export Assn., 

393 U.S. 199 (1968).................................................................................................................... 6

U.S. Navy Seals 1-26 v. Biden, 

27 F.4th 336 (5th Cir. 2022).......................................................................................... 10, 11, 13

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U.S. Navy Seals 1–26 v. Biden, 

578 F. Supp. 3d 822 (N.D. Tex. 2022)...................................................................................... 11

U.S. Navy SEALs 1-26 v. Biden, 

No. 22-10077 (5th Cir. Feb. 6, 2023)........................................................................................ 13

Veasey v. Abbott, 248 F. Supp. 

3d 833 (S.D. Tex. 2017).......................................................................................................... 6, 7

West Virginia v. EPA, 

142 S. Ct. 2587 (2022) ................................................................................................................ 6

Wooten v. Housing Authority of Dallas, 

723 F.2d 390 (5th Cir. 1983)....................................................................................................... 9

Yarls v. Bunton, 

905 F.3d 905 (5th Cir. 2018)..................................................................................................... 18

Zeidman v. J. Ray McDermott & Co., 

651 F.2d 1030 (5th Cir. 1981)................................................................................................... 21

Statutes

10 U.S.C. § 14502(g).................................................................................................................... 10

10 U.S.C. § 890............................................................................................................................... 3

10 U.S.C. § 892............................................................................................................................... 3

28 U.S.C. § 1346(a)(2).................................................................................................................. 11

42 U.S.C. § 2000bb-1(c)............................................................................................................... 11

Other Authorities

Army Regulation - AR40-562 at 

https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/r40_562.pdf .......................... 13, 20

February 28, 2023, top Pentagon officials testimony before Congress at 

https://www.washingtontimes.com/news/2023/feb/28/pentagon-has-its-own-long-covidproblem-overdropp/?utm_campaign=shareaholic&utm_medium=email_this&utm_source=email ................ 3

Heather Mongilio, Pentagon Unclear How Military Would Manage End of Mandatory COVID19 Vaccines, USNI NEWS (Dec. 7, 2022), https://news.usni.org/2022/12/07/pentagonunclear-how-military-would-handle-end-of-mandatory-covid-19-vaccines...................... 12, 19

Meghann Myers, Troops who refused COVID vaccines still could face punishment, Military 

Times (Feb. 28, 2023), 

https://www.militarytimes.com/news/coronavirus/2023/02/28/troops-who-refused-covidvaccines-still-could-face-punishment/?utm_source=sailthru&utm_medium

=email&utm_campaign=mil-ebb&SToverlay=de88742f-46f7-4f2c-819d-3b36a47d6a7e....... 16

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NDAA (National Defense Authorization Act for Fiscal Year 2023) available at: 

https://www.congress.gov/117/bills/hr7776/BILLS-117hr7776enr.pdf................. 12, 15, 16, 20

U.S. Secretary of Defense’s January and February 2023 Memoranda available at: 

https://media.defense.gov/2023/jan/10/2003143118/-1/-1/1/secretary-of-defense-memo-onrescission-of-coronavirus-disease-2019-vaccination-requirements-for-members-of-the-armedforces.pdf and https://media.defense.gov/2023/Feb/24/2003167584/-1/-1/1/GUIDANCE-FORIMPLEMENTING-RESCISSION-OF-082421-AND-113021-COVID-19-VACCINATIONREQUIREMENTS-FOR-MEMBERS-OF-THE-ARMED-FORCES-OSD001649-23-RESFINAL.PDF........................................................................................................................ passim

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INTRODUCTION

In an effort to avoid the consequences of having failed to afford complete relief to 

Plaintiffs, and to the putative class—as sought in the Amended Complaint (Dkt. 92) Defendants 

engage in a straw man argument by suggesting that this case was about obtaining rescission of the 

vaccine mandate. (Dkt. 106 at 1). In reality, and as is plain from Plaintiffs’ pleadings in this case, 

it was about violation of the religious freedom rights of those impacted by this mandate and 

providing a remedy for the harms flowing therefrom. The goal of this case has always been to 

afford complete relief for the adverse effectssuffered by service members for their non-compliance 

with the now-rescinded unconstitutional policy and put an end to that policy. Recission of the 

vaccine mandate to the extent it was being implemented to violate religious freedom rights was 

only a part of that complete relief sought. Many prior harms and ongoing harms directly resulting 

from Defendants’ illegal conduct remain to be remedied. (Dkt. 92).

Moreover, contrary to binding Fifth Circuit case law, Defendants argue there is an 

exhaustion requirement beyond merely completing the accommodation process for RFRA claims.

Going further, Defendants falsely suggest the case is moot because of a claim that they will 

voluntarily (eventually) engage in some (but not all) corrective action. Beyond not meeting their 

“heavy” burden to prove mootness, promises of future actions raise voluntary cessation issues, 

thus defeating Defendants’ mootness arguments. Ultimately, Defendants are wrong on every score

and the amended complaint should not be dismissed as moot.

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I. Plaintiffs Reincorporate the Entirety of Their Prior Response

In an effort to shorten this response, Plaintiffs reincorporate their prior submission (and the 

appendices, verified Amended Complaint, and evidence in support) in full. (Dkts. 92, 93 96).

II. Standard of Review

Under Rule 12(b)(1), the district court is to accept as true the allegations and facts set forth 

in the complaint and “is empowered to consider matters of fact which may be in dispute.” Ramming 

v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The court may “make factual findings which 

are decisive of its jurisdiction.” Clark v. Tarrant Cnty., 798 F.2d 736, 741 (5th Cir. 1986). “Courts 

may dismiss for lack of subject matter jurisdiction on any one of three different bases: (1) the 

complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the 

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Id.

Plaintiffs have set forth a factual background in their prior Response and in the amended complaint 

(Dkts. 92 and 96), and will not repeat those facts here, except as may be necessary to respond to 

Defendants’ new Motion.

ARGUMENT

I. Plaintiffs Received Orders to Vaccinate, Did Not Comply with Those Orders, and are 

Still Exposed to Punitive Actions as a Result—It is a Misrepresentation to this Court 

to Argue that any Such Punitive Actions are “Speculative,” as Proven by Record 

Evidence that Includes Defendants’ Own Admissions.

All Plaintiffs in this action received orders to vaccinate. (See Dkt. 14, Ex. 8, PageID#132 

¶ 8; Ex. 9, PageID#170 ¶ 6; Ex. 10, PageID#193, ¶ 7; Ex. 11, PageID#219, ¶ 7; Ex. 12, 

PageID#264, 282; Ex. 13, PageID#296, ¶ 6; Ex. 14, PageID#332, ¶ 6; Ex.15, PageID# 352, ¶ 7;

Ex. 16, PageID#385, ¶ 7; ECF No. 93, Ex. 4, PageID#2145, ¶ ¶ 6, 7). None of them complied. 

Accordingly, and for the next five years, each Plaintiff (except Luke Chrisman) remains subject to 

criminal prosecution for violations of either Article 90 or Article 92 of the Uniform Code of 

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Military Justice. 10 U.S.C. § 843 (five-year statute of limitations); 10 U.S.C. § 890 (Article 90); 

10 U.S.C. § 892 (Article 92). If convicted, each faces punishment of up to five years in a military 

prison for these violations.1

Defendants argue that this prosecutorial sword of Damocles is really nothing more than 

“implausible speculation.” But rather than provide an enforceable commitment to forswear any 

prosecutions (which they have refused to do), and rather than acknowledge that failing to follow 

orders is the crime, not failing to vaccinate as Defendants suggest, Defendants instead cite to an 

outdated November 2022 declaration, and then suggest that authority to court-martial soldiers has 

been withheld (at least temporarily) “solely for refusing to vaccinate.”

Defendants’ word games aside, two other pieces of evidence leave this issue clearly 

dangling over Plaintiffs’ heads. First, on February 28, 2023, top Pentagon officials acknowledged 

in testimony before Congress “that the Defense Department is still reviewing for potential 

‘disciplinary procedures’ numerous cases of active-duty troops who refused the shot while the 

mandate was in force.”

2 Then, no less than the Undersecretary of Defense for Personnel and 

Readiness, Gilbert Cisneros, admitted “[t]hey’re reviewing the cases because . . . they [disobeyed] 

a lawful order.” Id. Apparently, the Undersecretary hadn’t yet read Defendants’ Motion before 

providing his under-oath testimony. Regardless, Defendants now argue that this testimony does

not apply to religious objectors—but this Court should not countenance such ipse dixit claims. The 

fact that DOD officials admit disciplinary procedures are still on the table for any refusal of a 

“lawful order” makes clear that the decision as to whether to pursue criminal prosecutions in any 

1

https://jsc.defense.gov/Portals/99/Documents/2019 MCM (Final) (20190108).pdf?ver=2019-01-

11-115724-610 at Section IV-25 and IV-28, pages 332 and 335, last accessed Feb. 15, 2023.

2

https://www.washingtontimes.com/news/2023/feb/28/pentagon-has-its-own-long-covidproblem-over-dropp/?utm_campaign=shareaholic&utm_medium=email_this&utm_source=email

(last accessed 3/1/2023).

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of these cases is currently a matter of grace subject to the whim of the same government officials

who established the unconstitutional policy in the first place. And, as this Court appreciates, there 

is nothing that is actually enforceable (other than the current preliminary injunction) that prevents 

Defendants from changing to a punitive course once the injunction is lifted.

3

In other words, the 

sword of Damocles still hangs over Plaintiffs’ heads.

Equally troubling, in terms of Defendants’ mootness gamesmanship, is a text 

communication between Cadet Morrison and his commander, Major Hagen, on February 7, 2023, 

where Major Hagen admitted:

...we were all told to hold any action because you are part of that 

whole federal litigation thing, right? ... if the case doesn’t go well, 

the army could continue all the adverse action against unvaxxed 

[sic] persons...but if they say DoD can make a vaccine mandate, 

then I bet the action continues because it’s still disobeying a legal 

order.4

(Am. Compl., Dkt. 92 at ¶19; Appendix, Dkt. 93, Exhibit 3).

Under the collateral consequences exception, when the plaintiff’s primary injury (here, the 

discriminatory exemption process) has ceased, the case is not moot if the challenged conduct 

continues to cause other harm (i.e., “collateral consequences”) that the court is capable of 

remedying. Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998) (citing Sibron v. New 

3 Defendants also argue that Sergeant Galloway’s PCS orders that included a vaccination 

requirement for him to move back to the United States were an “administrative error.” Maybe. Or 

maybe they got caught and are trying to tell this Court one thing, while doing something very 

different in the field. The point is made: harm still exists and has not been remedied.

4

(Emphasis added). Defendants suggest that this was merely an “incorrect statement” of its agent,

and states that the GOMOR “is being” removed (conceding that has not occurred yet) citing to a 

policy change in its appendix at A090, PageID#2442-2443. The case the Government cites, 

however, is inapposite. Triplett v. Heckler, 767 F.2d 210, 213 (5th Cir. 1985), is solely related to 

arguments of estoppel against the government, not admissions by commanders and officers who 

are invested with the authority of office. Plaintiffs are not arguing that the Government is equitably 

estopped by virtue of Major Hagen’s statement; rather, we are pointing to it as an admission, and 

one that raises significant issues in the context of mootness and voluntary cessation.

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York, 392 U.S. 40, 53–59 (1968)). A continuing collateral consequence is one that provides the 

plaintiff with a “concrete interest” in the case and for which “effective relief” is available. Id.

(citing Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 571 (1984)). Here, the current 

injunction is the only thing that continues to protect Plaintiffs from prosecution until final 

judgment can make that relief permanent. Consequently, this matter is not moot. Sacks v. Office of 

Foreign Assets Control, 466 F.3d 764 (9th Cir. 2006) (recognizing that violation of repealed statute 

does not foreclose relief if the statute was violated); Bowman v. Schwarzenegger, Case No. CIV 

S-07-2164 FCD KJM P, 2009 WL 799274, *5–6 (E.D. Cal. Mar. 23, 2009) (same); Dean Foods 

Co. v. Tracy, 990 F. Supp. 646 (W.D. Wis. 1997) (holding claim not moot where enforcement 

possible); Bennie v. Munn, 822 F.3d 392 (8th Cir. 2016) (same); Ctr. for Individual Freedom v. 

Tennant, 706 F.3d 270, 293 (4th Cir. 2013) (noting possibility of enforcement for past violation 

rendered matter not moot); Ramsek v. Beshear, 989 F. 3d 494, 500 (6th Cir. 2021) (rejecting

mootness claim where there was a possibility of future prosecution in light of unexpired criminal 

statute of limitations).

Defendants also raise an apples-to-oranges comparison by citing other recent court 

decisions finding mootness. But each of those decisions involved the appeal of the denial of a 

preliminary injunction in which the only relief sought was the imposition of additional sanctions. 

Unsurprisingly, no one raised the same arguments or presented the same evidence here. Further, a 

preliminary injunction appeal is a substantially different matter than the merits of a case truly being 

moot. See Ramsek v. Beshear, 989 F. 3d at 500. In light of the ongoing harm caused by Defendants’

unconstitutional actions, Plaintiffs seek “root and branch” relief of the kind described by the Sixth 

Circuit in Doster v. Kendall, 54 F.4th 398, 439 (6th Cir. 2022), and seek “to enjoin any adverse 

action against the class members on the basis of denials of religious exemptions.” Doster v. 

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Kendall, 48 F.4th 608, 615 (6th Cir. 2022) (emphasis added). That language by the Sixth Circuit 

is no accident—it comes from a long line of discrimination cases that ended not only illegal 

discriminatory policies, but also all remaining vestiges of that illegal discrimination. Board of 

Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991); Green v. County Sch. 

Bd. Of New Kent County, Va., 391 U.S. 430, 437 (1968). Here, the ongoing threat of criminal 

prosecution is certainly one of those “vestiges.”

II. Defendants Cannot Meet Their “Heavy Burden” to Prove Mootness Where, 

Admittedly, They Have Not Yet Afforded Plaintiffs Full Corrective Action Relief, 

Will Not Do So for Discharged Soldiers, and May Never Do So for the Putative Class 

of Plaintiffs.

Mootness addresses whether “an intervening circumstance [has] deprive[d] the plaintiff of 

a personal stake in the outcome of the lawsuit.” Genesis HealthCare Corp. v. Symczyk, 569 U. S. 

66, 72 (2013) (internal quotation marks omitted); see also Friends of the Earth, Inc. v. Laidlaw 

Envtl. Servs. (TOC), Inc., 528 U. S. 167, 189–92 (2000). “The Supreme Court has placed the 

difficult burden of demonstrating mootness squarely upon the party who asserts the defense.”

Veasey v. Abbott, 248 F. Supp. 3d 833, 835 (S.D. Tex. 2017); see also, West Virginia v. EPA, 142 

S. Ct. 2587, 2607 (2022) (“[T]he Government, not petitioners, bears the burden to establish that a 

once-live case has become moot.”). In Veasey, the Court explained:

[T]he standard we have announced for determining whether a case 

has been mooted by the defendant’s voluntary conduct is stringent: 

“A case might become moot if subsequent events made it absolutely 

clear that the allegedly wrongful behavior could not reasonably be 

expected to recur.” The “heavy burden of persua[ding]” the court 

that the challenged conduct cannot reasonably be expected to start 

up again lies with the party asserting mootness.

Id. (citing Laidlaw, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export 

Assn., 393 U.S. 199, 203 (1968))).

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“It is well-settled that new legislation does not ipso facto eliminate the discriminatory intent 

behind older legislation and moot a dispute regarding the violation of law.” Id. (citing Hunter v. 

Underwood, 471 U.S. 222, 232–33 (1985)); Miss. State Chapter, Operation Push, Inc. v. Mabus, 

932 F.2d 400, 408–09 (5th Cir. 1991); Perez v. Texas, 970 F. Supp. 2d 593, 603 (W.D. Tex. 2013)

(noting claims of intentional discrimination in connection with legislation are not mooted by 

subsequent legislation so long as requested relief is available for purposeful discrimination.

Despite “complete repeal of a challenged law,” a case is not moot where “there is evidence 

creating a reasonable expectation that the [Army] will reenact the ordinance or one substantially 

similar.” Veasey, 248 F. Supp. 3d at 835 (citing Fed’n of Advert. Indus. Representatives, Inc. v. 

City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003)). The situation Veasey addressed is instructive. 

A determination of mootness “fit the circumstances of [City of Chicago] because the only relief 

sought was an injunction against enforcing the law. If the law is repealed, there is nothing left to 

enforce.” Id. In contrast, the Veasey plaintiffs, as here, “[we]re arguing for additional relief to 

redress the lingering injury of an alleged discriminatory purpose in passing the statute.” Id. “The 

existence of additional injuries, some of which carry additional remedies prevent[ed] application 

of [the City of Chicago] mootness holding.” Id. Thus, “[w]hile the only relief they can obtain is 

prospective, the injuries are not eliminated as a result of a single provision that ameliorates the 

harshest effect of the law.” Id. at 837.

The outcome in Veasey is consistent with the rule that “a case ‘becomes moot only when 

it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Chafin 

v. Chafin, 568 U. S. 165, 172 (2013) (emphasis added). “As long as the parties have a concrete 

interest, however small, in the outcome of the litigation, the case is not moot.” Id.

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Defendants do not dispute there is continuing harm from their now rescinded policy that 

has not yet been remedied. They suggest that some of this further harm is “contraindicated” by the 

Secretary of Defense’s (current) directive and can be “undone.” (Memo, Dkt. 106 at 9). But, as 

demonstrated, that is not the measure of Defendants’ heavy burden. Each of the Cadet Plaintiffs 

(Bufkin, Conklin, Mell, Morrison, and Saballa) received a General Officer Memorandum of 

Reprimand (“GOMOR”), and each of those adverse actions are, as of today, still of record. (Am. 

Compl., Dkt. 92 at ¶¶ 14, 15, 18, 19, 20, 61). Each made repeated, unsuccessful inquiries to their

chain of command, and their counsel made similarly unsuccessful inquiries to the U.S. Department 

of Justice. To date, none of them have been informed whether, and on what timeline, any corrective 

or remedial action might occur. Id. And for Cadet Mell, he has not received any indication that the 

Army even stopped processing his discharge, nor any indication that it will, in fact, decline to 

discharge him, despite his specific inquiry about it. Id. at ¶18. Defendants likely ignore this 

unrebutted, record evidence because it refutes any suggestion that they have met their “heavy 

burden.” Add to that Defendants’ recent testimony before Congress, and Major Hagen’s 

admission, and Defendants cannot come close to meeting their burden. (See Am. Compl., Dkt. 92

at ¶19; Appendix, Dkt. 93, Exhibit 3).

Finally, the Amended Complaint adds a new Plaintiff to this case: former soldier Luke 

Chrisman. After unsuccessfully pursuing a religious accommodation—unsurprising given 

Defendants’ discriminatory process—Chrisman was punitively discharged, given a General 

Discharge (which is indisputably adverse), with adverse separation reasons and codes. (Id. at ¶¶ 

23, 59). His harm continues to date, and it includes uncomfortable inquiries by potential employers 

into his discharge reasons. And, per the Secretary of Defense’s own directives, there is no plan 

or even an intention to remedy his harm. (Id. at ¶¶ 4, 23, 59). Rather, the Secretary’s Memoranda

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9

states that such former servicemembers may petition for correction of their records through the

Army Discharge Review Board and the Army Force Board for Correction of Military Records. Id.

And after that, good luck.

At present, it remains a fact that all Plaintiffs who have GOMORs, flags, and other forms 

of adverse action still have not had complete corrective action taken. (Am. Compl., Dkt. 92, at ¶¶ 

13 – 23). And there have been no concrete, irrevocable/enforceable directives or remedial actions 

that would bar criminal prosecutions for failing to follow prior, unlawful orders to vaccinate. 

Despite repeated requests, Defendants refuse to tell this Court, much less anyone else, when those 

irrevocable steps might occur, or by what date those steps will be completed. Id. An ambiguously 

worded promise to correct a harm at some unspecified point in the future is woefully insufficient 

to meet the “heavy burden” to establish mootness. Wooten v. Housing Authority of Dallas, 723 

F.2d 390, 392 (5th Cir. 1983) (explaining that only receipt of “all of the relief sought” will moot 

the case); see also Chen v. Allstate Ins. Co., 819 F.3d 1136, 1138 (9th Cir. 2016) (noting that a 

claim becomes moot when a plaintiff actually receives complete relief). Plainly, then, this case is 

not moot, as Defendants have not yet afforded Plaintiffs full corrective action relief and will not 

do so for discharged soldiers or the putative class of Plaintiffs.

III. Other Than Completing the RFRA Accommodation Process (Which Has Been 

Discontinued), There is No Further Ripeness/Exhaustion Requirement, and

Defendants’ Arguments to the Contrary are Foreclosed Under Binding Fifth Circuit 

Precedent.

In response to the fact that harm to Plaintiffs has not been remedied to date (which should 

end the mootness inquiry), Defendants resort to their now-tired refrain that Plaintiffs must 

somehow further exhaust by going through Army administrative channels to the Army Board of 

Correction of Military Records and the Army Discharge Board. (Memo, Dkt. 106, at 24-26). The 

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10

Fifth Circuit disagrees with Defendants. U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336, 345–49 (5th

Cir. 2022).

In Navy Seals, the Fifth Circuit stated that “[i]t would not be a stretch to conclude that 

RFRA must also displace a judge-created abstention doctrine.” Id. at 346. In so doing, the Fifth 

Circuit also stated that the justiciability doctrine set forth in Mindes v. Seaman, 453 F.2d 197 (5th 

Cir. 1971) was displaced by Congress’ enactment of RFRA. Id. Nevertheless, out of “an abundance 

of caution,” the Fifth Circuit applied the Mindes factors and ascertained that religious 

discrimination claims against the military related to vaccination exemptions were justiciable. Id.

Initially, the Fifth Circuit determined that plaintiffs raised claims under applicable statute 

(RFRA) and the First Amendment, satisfying the first prong of Mindes. Id. So too here. In fact, the 

claims here are identical. Next, the Fifth Circuit analyzed exhaustion and concluded that the 

plaintiffs who had exhausted the religious accommodation appeals process, had exhausted. Id.

at 346. Here, all Plaintiffs who have had adverse actions taken against them went all the way

through the Army’s religious accommodation process and had their accommodation requests 

denied at both levels. (Am. Compl., Dkt. 92 at ¶¶ 14, 15, 18, 19, 20, 23, 61). Each of the Cadet 

Plaintiffs (Bufkin, Conklin, Mell, Morrison, and Saballa) exhausted, and each received GOMORs, 

which are, as of today, still on record. (Am. Compl., Dkt. 92 at ¶¶ 14, 15, 18, 19, 20, 61). Likewise,

former soldier Luke Chrisman exhausted and he was given a General Discharge (which is 

indisputably adverse), along with adverse separation reasons and codes. (Id. at ¶¶ 23, 59). And 

Plaintiffs Costroff, Schelske, and Testa exhausted, and they all have been denied promotions due 

to their delay in attending the Senior Leadership Course (“SLC”). (Id. at ¶¶ 16, 21, 22, 60).

5

5 Defendants suggest that these Plaintiffs claiming promotional harm must utilize the separate 

remedy contained at 10 U.S.C. § 14502(g)(1)(A)-(b) for the promotion claims, which requires 

further exhaustion. First, that is not what 10 U.S.C. § 14502(g) says; it says that an individual

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11

Each of these Plaintiffs fully exhausted what they were required to exhaust under the Fifth 

Circuit’s precedent in Navy Seals, 27 F.4th at 346; see also, Schelske v. Austin, 2022 U.S. Dist. 

LEXIS 229432 at *40. Thus, Defendants’ argument that Plaintiffs must do more is foreclosed by 

that Fifth Circuit case law. Further, given public statements by Defendants that, despite adverse 

court rulings, everything they did was lawful, futility is plainly at play here as well.

And as was also the case in Navy Seals, the other four Mindes factors favor justiciability

here. Plaintiffs “allege specific, and far from frivolous, violations of their free exercise rights under 

both the First Amendment and RFRA” and the “nature and strength of Plaintiffs’ claims weigh in 

favor of judicial resolution.” Id. at 348. Plaintiffs here continue to face irreparable harm from the 

violation of their First Amendment rights. Id. And finally, as to the last Mindes factor, given that 

the Army has granted thousands of secular exemptions to its vaccination policy, there is little 

impediment towards granting relief to these Plaintiffs. Id. at 348-349. This is also in line with the 

conclusions reached by another court in this district. U.S. Navy Seals 1–26 v. Biden, 578 F. Supp. 

3d 822 (N.D. Tex. 2022). No further exhaustion is required, and Congress plainly gave these 

Plaintiffs a claim to pursue under RFRA, separate and apart from the military board processes. 42 

U.S.C. § 2000bb-1(c).

cannot go to court until a special selection board is convened or the Secretary refuses to appoint 

one. Here, Plaintiffs are asking for a court order directing a referral to such a board. Further, 

Congress has created a separate remedy that these Plaintiffs have elected to pursue in 42 U.S.C. 

§ 2000bb-1(c). Defendants likewise suggest that this Court cannot award backpay (Memo, Dkt. 

106 at 26-28, PageID#2307-2309). But Defendants acknowledge that equitable relief can include 

backpay, if it is intertwined with claims for injunctive relief, citing Borst v. Chevron Corp., 36 

F.3d 1308, 1324 (5th Cir. 1994), but suggest that is not the case here. Yet it is: religious 

discrimination is the claim, and an injunction to end it “root and branch”—to include submission 

to special selection boards, and, if selected, to award backpay—would be just that sort of relief.

And, in any event, these claims are below the limitations contained in 28 U.S.C. § 1346(a)(2), 

which includes monetary relief.

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IV. There is Ongoing, De Facto Discrimination by the Army, and Nothing Keeps 

Defendants from Reinstituting Another Unconstitutional Mandate with No Religious 

Accommodation Process Whatsoever or Another Sham Process.

Defendants believe that Congress’s direction to rescind the mandate was a “mistake,”

6

and

nothing in the NDAA prevents Defendants from instituting a new mandate. Pentagon 

spokespersons, including the Secretary of the Navy, indicated that the repeal of the mandate will 

“unquestionably . . . create almost two classes of citizens in our services . . . Those that can’t deploy 

and those that can deploy.”

7

The Secretary’s January and February 2023 Memorandums contain various statements 

demonstrating that the Secretary of Defense believes that everything Defendants did was lawful, 

which suggests a return to past practices is not out of the question.8 The Secretary of Defense 

unambiguously states: “All commanders have the responsibility and authority to preserve the 

Department’s compelling interests in mission accomplishment [including] . . . the ability to 

maintain military readiness, unit cohesion, good order and discipline, and the health and safety of 

a resilient Joint Force.” Id. Those statements were directives to lower-level commanders that they 

continue to have the freedom to impose vaccine mandates to “maintain military readiness, unit 

cohesion, good order and discipline, and the health and safety of a resilient Joint Force.” And, 

when that happens, there is no religious accommodation process to protect these Plaintiffs. Without 

question, Defendants’ response to being ordered to rescind the mandate by Congress reflects that 

6 Heather Mongilio, Pentagon Unclear How Military Would Manage End of Mandatory COVID19 Vaccines, USNI NEWS (Dec. 7, 2022), https://news.usni.org/2022/12/07/pentagon-unclearhow-military-would-handle-end-of-mandatory-covid-19-vaccines, last accessed Feb. 15, 2023.

7 Mongilio, supra n.6.

8 Available at: https://media.defense.gov/2023/jan/10/2003143118/-1/-1/1/secretary-of-defensememo-on-rescission-of-coronavirus-disease-2019-vaccination-requirements-for-members-of-thearmed-forces.pdf.

Case 6:22-cv-00049-H Document 109 Filed 03/24/23 Page 20 of 32 PageID 2484
13

they will do this again and have no intention of complying with RFRA and the First Amendment 

in the future when they do.

A. Current Army policy and regulations violate RFRA.

Defendants continue their refrain of no harm, no foul (and pretend the foregoing policies 

do not exist), by suggesting Plaintiffs make arguments only about a potential future policy. (Memo 

at 21-23, Dkt. 106, PageID#2302-2305). Even though Defendants have presently directed no 

further vaccination exemptions be processed for any COVID-19 vaccination requirements, there 

are still existing Army regulations and policy in place for religious and secular exemptions for 

other vaccines that contain a double standard of localized decision makers for secular exemptions,

but centralized top-level decision makers for religious exemptions. (Am. Compl., Dkt. 92, at ¶34, 

PageID#2101).

9 Thus, if Defendants were to impose another COVID-19 vaccine mandate, and 

actually consider exemptions to it, they would return to their default discriminatory process. 

During oral argument in the Fifth Circuit in Navy Seals on February 6, 2023, Judge Duncan posited 

to the Navy’s counsel that if another vaccination mandate issued, the “military is going to follow 

the same [sham religious accommodation] policy going forward. Nothing in the record would 

indicate otherwise.”

10 That is equally true for the Army.

B. Contrary to Defendants’ suggestions, this Court can direct operational, 

assignment, and deployment issues in a final judgement.

Defendants argue that this Court cannot reach operational, assignment, or deployment 

decisions under Austin v. U.S. Navy Seals 1-26, 142 S. Ct. 1301 (2022). (Memo, Dkt. 106 at 23-

9

https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/r40_562.pdf at AR40-562, ¶ 2.6 (last 

visited March 16, 2023).

10 Oral Argument at 8:12-19:50, U.S. Navy SEALs 1-26 v. Biden, No. 22-10077 (5th Cir. Feb. 6, 

2023), available at https://www.ca5.uscourts.gov/OralArgRecordings/22/22-10077_2-6-

2023.mp3.

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14

24). Plaintiffs do not read Austin so broadly, and believe it is limited to preliminary injunctive 

relief only, versus what the Court can direct in final relief on a complete record. This position 

stems from the lack of any discussion or rationale in the Austin decision, and applying Marks v. 

United States, 430 U.S. 188 (1977), which requires the narrowest construction and holding in a 

potentially fractured decision. In fact, there is a long history of courts adjudicating claims in the 

assignment, operational, and deployment arena, so long as there is statutory authority to do so, as 

there is here. Adkins v. United States, 68 F.3d 1317, 1325 (Fed. Cir. 1995) (claim for back pay is 

justiciable); Scarseth v. United States, 46 Fed. Cl. 406, 413 (Ct. Cl. 2000) (same); Haselrig v. 

United States, 53 Fed. Cl. 111, 120 (Ct. Cl. 2002) (same); Bond v. United States, 47 Fed. Cl. 641, 

651 (Ct. Cl. 2000) (military duty assignment review); Murphy v. United States, 993 F.2d 871, 873 

(Fed. Cir. 1993). Indeed, courts are not compelled “to abdicate their responsibility to decide cases 

and controversies merely because they arise in the military context.” Owens v. Brown, 455 F. Supp. 

291, 300 (D.D.C. 1978); Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) (addressing merits); Able 

v. United States, 155 F.3d 628 (2d Cir. 1998) (same); Doe v. Trump, 275 F. Supp.3d 167 (D.D.C. 

2017) (addressing merits of claims). The United States Supreme Court has reviewed, and permitted 

the review, of assignments, benefits, housing, and other challenges. Schlesinger v. Ballard, 419 

U.S. 498 (1975) (promotion policies); Frontiero v. Richardson, 411 U.S. 677 (1973) (housing, 

medical, and dental benefits).

C. This case is a textbook case for application of the voluntary cessation doctrine.

The already heavy burden of establishing mootness is made even heavier when it comes to 

voluntary cessation. “A defendant’s voluntary cessation of allegedly unlawful conduct ordinarily 

does not suffice to moot a case.” Laidlaw, 528 U.S. at 189. “If it did, the courts would be compelled 

to leave ‘the defendant . . . free to return to his old ways.’” Id. (citing City of Mesquite v. Aladdin’s 

Case 6:22-cv-00049-H Document 109 Filed 03/24/23 Page 22 of 32 PageID 2486
15

Castle, Inc., 455 U.S. 283, 289 (1982)). That is why a Defendant “bears the formidable burden of 

showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be 

expected to recur.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (emphasis added). In Trinity 

Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017), the Supreme Court 

held that a government actor’s change in policy does not moot a case. Rather, the court held that 

the defendant must prove that it is “absolutely clear the allegedly wrongful behavior could not 

reasonably be expected to recur.” Laidlaw, 528 U.S. 167 at 190. “This 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.” Tucker v. Gaddis, 40 F.4th 289, 295 (5th Cir. 2022) (Ho, 

J. concurring). “The skepticism is warranted because the opportunities and incentives for 

government defendants are obvious: Any ‘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.” Id. (citing Already, 568 U.S. at 91).

“If a government not only ceases the challenged behavior, but also assures the plaintiffs 

and the courts that it will never return to its previous course of conduct, a court might reasonably 

decide to credit that promise, and hold the case moot, so long as it finds no reason to doubt the 

government’s credibility on this score.” Id. By contrast, Defendants here not only do not make 

such a promise, given the language in the Secretary’s initial Memorandum, this Court has plenty 

of reason to doubt the Defendants’ “credibility on this score.”

Defendants suggest that this is not a voluntary cessation case because, they argue, Congress 

in the NDAA required the rescission of the Vaccine Mandate. But the NDAA at (§ 525, pages 177-

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16

178) only required rescission or discontinuation of the prior policy.11 It did not require lifting the 

implementation orders by the Secretary of the Army. It did not require halting separations for those 

who disobeyed the orders to vaccinate. It did not require the removal of adverse actions and 

reprimands. Any argument that removal of adverse actions was not voluntary (and we submit

litigation posturing) is a mischaracterization of fact.

Attempting to respond to that point, Defendants falsely argue that the Secretary’s voluntary 

actions “merely implemented” the NDAA. (Memo, Dkt. 106, at 14, PageID#2295). That 

contention strains the bounds of Rule 11. Not only because the plain text of the NDAA did not 

require the Secretary’s voluntary actions, but on February 28, 2023, top Pentagon officials 

acknowledged in testimony before Congress that “[t]he services are going through a process to 

review those cases [where individuals disobeyed a lawful order’ to get a COVID-19 vaccine] to 

make a determination what needs to be done.”

12 Again, no less than the Undersecretary of Defense 

for Personnel and Readiness, Gilbert Cisneros, admitted “[t]hey’re reviewing the cases because . . 

. they [disobeyed] a lawful order.” Id. Clearly, Defendants do not believe that the NDAA actually

requires removal of adverse actions—instead, top-level officials confirmed before Congress that, 

notwithstanding the NDAA, they can continue to punish those who did not comply. It is time for 

Defendants’ continued gamesmanship on this issue to stop.

While Defendants falsely suggest there is no indication that they might reconsider or 

reimpose their past policies, (Memo, Dkt. 106, at 14, PageID#2295), the Undersecretary of 

11 Available at: https://www.congress.gov/117/bills/hr7776/BILLS-117hr7776enr.pdf (last 

accessed 2/10/2023).

12 Meghann Myers, Troops who refused COVID vaccines still could face punishment, Military 

Times (Feb. 28, 2023), https://www.militarytimes.com/news/coronavirus/2023/02/28/troops-whorefused-covid-vaccines-still-could-face-punishment/?utm_source=sailthru&utm_medium

=email&utm_campaign=mil-ebb&SToverlay=de88742f-46f7-4f2c-819d-3b36a47d6a7e.

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Defense’s recent testimony to Congress is just that sort of evidence. So is the Secretary of 

Defense’s January and February 2023 Memoranda.

13 Both Memoranda contain explicit statements 

clearly indicating that the Secretary of Defense believes that everything Defendants did was 

lawful. Homages to “changing public health conditions, relevant data, and geographic risks, and 

updating policies and processes as required to maintain the strategic readiness of our forces and 

our ability to defend national security interests around the globe”

14 unfortunately foreshadow a 

return to past discriminatory processes and practices. Given Defendants’ admissions, it is not

“absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

Already, 568 U.S. at 91. Those same statements about “changing public health conditions, relevant 

data, and geographic risks” place this case squarely within the import of Roman Catholic Diocese 

v. Cuomo, 141 S. Ct. 63, 68–69 (2020). The Court observed there that if restrictions are dependent 

upon public health conditions, which are subject to change, the case is plainly not moot. The 

reservation here to reimpose vaccination requirements based on “changing public health 

conditions” is on all fours with Cuomo.

In fact, Defendants have never “asserted nor demonstrated that [they] will never resume 

the complained of conduct” and Plaintiffs do not expect that they will. Norman-Bloodsaw v. 

Lawrence Berkely Lab., 135 F.3d 1260, 1274 (9th Cir 1998); Cf. United States v. Sanchez-Gomez, 

138 S. Ct. 1532, 1537 n.* (2018) (holding “the rescission of the policy does not render this case 

moot”).

13 Available at: https://media.defense.gov/2023/jan/10/2003143118/-1/-1/1/secretary-of-defensememo-on-rescission-of-coronavirus-disease-2019-vaccination-requirements-for-members-of-thearmed-forces.pdf and https://media.defense.gov/2023/Feb/24/2003167584/-1/-1/1/GUIDANCEFOR-IMPLEMENTING-RESCISSION-OF-082421-AND-113021-COVID-19-

VACCINATION-REQUIREMENTS-FOR-MEMBERS-OF-THE-ARMED-FORCESOSD001649-23-RES-FINAL.PDF, last accessed 3/16/2023.

14 Id.

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Next, consider the statement by Cadet Morrison’s commanding officer:

...we were all told to hold any action because you are part of that 

whole federal litigation thing, right? ... if the case doesn’t go well, 

the army could (emphasis) continue all the adverse action against 

unvaxxed [sic] persons...but if they say DoD can make a vaccine 

mandate, then I bet the action continues because it’s still disobeying 

a legal order.

(Am. Compl., Dkt. 92, at ¶19; Appendix, Dkt. 93 at Exhibit 3).

This is stunning evidence that what Plaintiffs are dealing with here is litigation posturing 

by Defendants. Instead of absolutely making clear that Defendants will not return to their past 

discriminatory policies, Defendants chose to play whack-a-mole with the sole intent of mooting 

out this litigation. First, it was the Secretary’s January 2023 Memorandum rescinding the mandate 

and removing “adverse actions” and halting separations of Plaintiffs. Then came the February 24, 

2023 Memorandum, issued after Plaintiffs had filed their amended complaint and opposition to 

Defendants’ initial motion to dismiss. (Dkt. 92 and 96). The timing and focus of these new policies 

demonstrate that Defendants’ latest round of policies constitute voluntary cessation for the purpose 

of “litigation posturing.” Yarls v. Bunton, 905 F.3d 905, 910 (5th Cir. 2018). Plaintiffs are curious 

as to what new round of policies are born by this filing.

In fact, it appears to be reasonably certain that Defendants will continue their illegal 

activities as soon as they are no longer burdened by “that whole federal litigation thing.”

Determining whether the ceased action “could not reasonably be expected to recur,” Laidlaw, 528 

U.S. at 189, takes into account the totality of the circumstances surrounding the voluntary 

cessation, including the manner in which the cessation was executed. Speech First, Inc. v. 

Schlissel, 939 F.3d 756, 767 (6th Cir. 2019). Where, as here, “a change is merely regulatory [or by 

executive action], the degree of solicitude the voluntary cessation enjoys is based on whether the 

regulatory processes leading to the change involved legislative-like procedures or were ad hoc, 

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19

discretionary, and easily reversible actions.” Id. Thus, where, as here, “[i]f the discretion to effect 

the change lies with one agency or individual, or there are no formal processes required to effect 

the change, significantly more than the bare solicitude itself is necessary to show that the voluntary 

cessation moots the claim.” Id.

This “authority to reinstate [the challenged policies] at any time” from officials “with a 

track record of ‘moving the goalposts’” subjects Plaintiffs to a credible threat of widespread 

enforcement of Defendants’ discriminatory vaccination requirements in the future. Tandon v. 

Newsom, 141 S. Ct. 1294, 1297 (2021). Defendants also continue to defend the merits of how their 

mandate was carried out. See Mongilio, supra n.6. Given that Defendants still “vigorously defend”

the legality of their prior mandate, including as to those who sought a religious accommodation, 

mootness is not met. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. 

S. 701, 719 (2007). Courts do not dismiss a case as moot in such circumstances. See City of 

Mesquite, 455 U.S. 283, 288–89.

Moreover, given the waiting game being played here, Plaintiffs submit that the temporary 

recission or expiration or termination of the vaccine mandate order—in the midst of litigation—is 

entitled to no weight whatsoever. See A. Philip Randolph Inst. v. Husted, 838 F.3d 699, 713 (6th 

Cir. 2016), rev’d on other grounds, 138 S. Ct. 1833 (2018).

Finally, while Defendants seek to hide behind the alternative rule for government actors, it 

does not apply here, and, if it did, the requirements of that test for the exception to mootness is 

met. Courts consider three factors when applying this more relaxed standard: “(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 [governmental entity’s] continued defense of the challenged 

polic[y]” after the supposedly mooting event. Speech First, 979 F.3d at 328; Speech First, Inc. v. 

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Fenves, 979 F.3d 319 (5th Cir. 2020). Here, of course, there is no controlling statement regarding 

future intention not to repeat the policy. To the contrary, Defendants plainly reserve the right to do 

so (and say as much in their policy memos). Thus, the first factor is plainly met. For the second 

factor, there is suspicious timing as discussed in previous paragraphs. Defendants counter that

there is nothing suspicious here because Congress directed them to rescind the COVID-19 mandate 

in the NDAA. But that misses the point. Defendants’ stepwise efforts are about attempting to moot 

ongoing litigation, particularly in cases where they continue to disagree, publicly, with adverse 

decisions. Once again, Defendants continue to vigorously defend their unconstitutional policy in 

the January and February 2023 Memoranda. Defendants thus fail on all three factors and cannot 

meet their “formidable burden of showing that it is absolutely clear the allegedly wrongful 

behavior could not reasonably be expected to recur.” Already, 568 U.S. at 91.

D. The capable of repetition yet evading review exception to mootness also 

applies.

This case also falls under the capable of repetition yet evading review exception to 

mootness. It “applies where ‘(1) the challenged action is in its duration too short to be fully litigated 

prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining 

party will be subject to the same action again.’” Fed. Election Comm’n v. Wisconsin Right To Life, 

Inc., 551 U.S. 449, 462 (2007). Defendants suggest that the capable of repetition exception does 

not apply because the initial mandate imposed in August of 2021 had no expiration date. But this 

case is not about the vaccine mandate. It is about Defendants’ refusal to grant religious 

accommodations to the mandate via a regulatory process that is still in force15—refusals that 

15 https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/r40_562.pdf at AR40-562, ¶ 2.6, last 

visited Mar. 16, 2023.

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21

inherently involve a double standard with local decision makers for secular exceptions and highlevel decision makers for religious exceptions that override the local decision makers. Further,

statements by Defendants that they still have compelling interests in imposing future vaccine 

mandates, recent under-oath statements by DoD officials that they intend to punish at least some 

past-vaccine refusers, and stunning admissions by Plaintiffs’ commanders that there is a wait-andsee approach to continuing the mandate when unburdened by that “whole federal litigation thing,”

undermine any claims by Defendants that recurrences of the mandate are merely “speculative.”

This is a game being played by these Defendants, with plenty of smoke, suggesting that the only 

thing keeping Defendants from reimposing their mandate and punishing prior religious vaccine 

objectors for not complying with orders is, at least for the Army, this litigation. Given the clear 

record evidence, there is nothing speculative here about future harm.

E. The class/pickoff exception applies.

In a final attempt to prop up their mootness claim, Defendants make two arguments related 

to the doctrine that class treatment cannot be avoided by “picking off” named Plaintiffs—both fail.

First, Defendants suggest that they will (eventually) fix everyone’s harms. This argument is plainly 

untrue, though, as they previously admitted that Luke Chrisman’s harms will not be remedied and 

instead indicated he needed to undertake administrative steps first. Moreover, not only do 

Defendants fail even to attempt a remedy for Chrisman, but they have also likewise not provided 

remedies for the putative class. A future promise is insufficient. Second, Defendants argue that the 

pickoff exception, pre-certification, only applies where the claims are inherently transitory. But 

that argument is precluded by the Fifth Circuit’s decision in Zeidman v. J. Ray McDermott & Co., 

651 F.2d 1030, 1045 (5th Cir. 1981). There, the Court explained that, “while we recognize that the 

named plaintiffs in this case have not presented claims which by their nature are so transitory that 

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22

no single named plaintiff with such a claim could maintain a justiciable case long enough to 

procure a decision on class certification, we believe that the result should be no different when the 

defendants have the ability by tender to each named plaintiff effectively to prevent any plaintiff in 

the class from procuring a decision on class certification.” Id. at 1050. Said another way, the Fifth 

Circuit does not permit Defendant to “fix” the issues with named Plaintiffs while harm to the class 

remains. As noted, Plaintiffs have demonstrated ongoing harm to the class, and thus the exception 

applies.

F. Cadet Bufkin’s claims are not subject a Motion to Dismiss.

The final matter to address are the claims of Cadet Bufkin. He provided a sworn-to 

verification of his religious beliefs on August 1, 2021, had stress placed upon him by West Point 

commanders and leadership through threats of adverse action, segregation and harassment—all 

due solely to his unvaccinated status and pending religious accommodation request—and was later 

diagnosed with situational depression/anxiety. (Am. Compl., Dkt. 92 at ¶14 and Dkt. 14, PageID 

134 ¶20). As a result, Cadet Bufkin’s grades suffered in the Spring 2022 semester, and he failed 

three classes. Id. at ¶14. He pled that he “suffered career ending consequences that flowed directly 

from Defendants’ discriminatory actions and his related diagnosed depression.” Id. at ¶63.

Defendants argue that Cadet Bufkin’s grades were bad before the vaccination mandate. But 

that argument focusses on a single semester (the Fall of 2020) while ignoring the two before it and 

the one after it, all of which demonstrated sufficient performance, and then the abysmal 

performance after the discrimination and the vaccine mandate. That is a factual issue—one subject 

to proof—not one subject to a motion to dismiss. Clark, 798 at 741.

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23

CONCLUSION

Defendants continue to fail to meet their formidable burden to establish mootness. Yet, 

they incredibly continue to claim mootness, ostensibly due to their rescission of a policy that can 

be re-enacted at any time, while ignoring ongoing harms that continue to date that have not been 

corrected and include harms they do not ever intend to correct as detailed above. They argue for 

an exhaustion requirement that is foreclosed by Circuit precedent. They further argue that 

voluntary cessation (and its heightened burden) does not apply, even though Congress did not 

mandate any corrective action other than rescission of a particular policy. They otherwise fail to 

address a bevy of other applicable exceptions and never grapple with adverse facts. The motion to 

dismiss should be denied.

Dated: March 24, 2023 Respectfully submitted, 

/s/ Aaron Siri .

Aaron Siri (Admitted Pro Hac Vice)

Elizabeth A. Brehm 

(Admitted Pro Hac Vice) 

Wendy Cox (TX 24090162)

Dana Smith (Admitted Pro Hac Vice)

SIRI | GLIMSTAD LLP

745 Fifth Avenue, Suite 500

New York, NY 10151

(212) 532-1091 (v)

(646) 417-5967 (f)

aaron@sirillp.com

ebrehm@sirillp.com

wcox@sirillp.com

dstone@sirillp.com

/s/Christopher Wiest

Christopher Wiest (Admitted Pro Hac Vice)

Chris Wiest, Atty at Law, PLLC 

25 Town Center Boulevard, Suite 104

Crestview Hills, KY 41017

(513) 257-1895 (vc)

(859) 495-0803 (f)

Case 6:22-cv-00049-H Document 109 Filed 03/24/23 Page 31 of 32 PageID 2495
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chris@cwiestlaw.com

Thomas Bruns (Admitted Pro Hac Vice)

Bruns, Connell, Vollmar & Armstrong, LLC

4555 Lake Forest Drive, Suite 330

Cincinnati, OH 45242

(513) 312-9890 (vt)

tbruns@bcvalaw.com

John C. Sullivan

S|L LAW PLLC

Texas Bar Number: 24083920 

610 Uptown Boulevard, Suite 2000

Cedar Hill, Texas 75104

(469) 523–1351 (v)

(469) 613-0891 (f)

john.sullivan@the-sl-lawfirm.com

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on March 24, 2023, a true and correct copy of this Plaintiffs’ 

Memorandum in Opposition to Defendants’ Motion to Dismiss was served by CM/ECF on all 

counsel or parties of record.

/s/ Christopher Wiest

 Christopher Wiest

Case 6:22-cv-00049-H Document 109 Filed 03/24/23 Page 32 of 32 PageID 2496