1

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ERIC JACKSON, ALARIC STONE, and )

MICHAEL MARCENELLE, on behalf of )

themselves and all others similarly situated, )

) 

Plaintiffs, )

v. )

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

ALEJANDRO N. MAYORKAS, in his official )

capacity as Secretary of Homeland Security, )

LLOYD J. AUSTIN, III, in his )

official capacity as Secretary of Defense, )

LINDA L. FAGAN, in her official )

capacity as Commandant of the Coast Guard, and )

BRIAN K. PENOYER, in his official capacity )

as Assistant Commandant for Human )

Resources of the Coast Guard, )

)

Defendants. )

PLAINTIFFS’ MEMORANDUM IN SUPPORT 

OF THEIR RULE 60(b) MOTION FOR RELIEF FROM FINAL JUDGMENT

The Court should grant Plaintiffs relief from the Opinion and Order dismissing this case 

(ECF No. 98) and the Final Judgment (ECF No. 99).

Just days before this Court entered its August 17, 2023 order of dismissal and final 

judgment, the Coast Guard issued a new policy authorizing automatic restoration of missed 

promotions and advancements for those service members who were separated because of its illegal

COVID-19 vaccine mandate and have returned or are now returning to service. The new policy 

shows the Coast Guard has failed to eradicate the ongoing consequences of its illegal mandate and 

sham religious accommodation process for Plaintiffs and those who similarly avoided separation 

while remaining unvaccinated (as the Coast Guard has consistently refused to ensure them such 

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restoration throughout this litigation), while it is readily willing to do so for a separate class of 

service members. 

Additionally, on August 28, 2023, after this Court’s order of dismissal and judgment, the 

Biden Administration announced it would officially “encourage” Americans to receive a new 

COVID-19 vaccine upon its release later this month, in order to target the new “XXB variant.” 

This announcement confirms that the Coast Guard has failed to make absolutely clear, as it must 

to avoid mootness, that the Coast Guard’s illegal mandate is not reasonably likely to recur. 

Accordingly, Plaintiffs seek relief from this Court’s order of dismissal and final judgment 

pursuant to Rule 60(b), because applying that judgment prospectively is no longer equitable and 

relief is otherwise justified in light of these new circumstances. 

ARGUMENT

Rule 60(b) provides that “[o]n motion and just terms, the court may relieve a party . . . from 

a final judgment . . . for the following reasons: . . . (5) . . . applying it prospectively is no longer 

equitable; or (6) any other reason that justifies relief.” While motions under Rule 60(b)(6), in 

particular, must demonstrate “extraordinary circumstances” to justify relief, Hess v. Cockrell, 281 

F.3d 212, 214 (5th Cir. 2002), the Fifth Circuit has stated that “Rule 60(b) is to be construed 

liberally to do substantial justice,” especially “in hard cases where the circumstances generally 

measure up to one or more of the itemized grounds,” Johnson Waste Materials v. Marshall, 611 

F.2d 593, 600 (5th Cir. 1980) (internal quotes omitted).

Moreover, the Fifth Circuit has previously refused to consider certain new arguments on 

appeal that were not first raised in a Rule 60(b) motion. See, e.g., Sindhi v. Raina, 905 F.3d 327, 

333 (5th Cir. 2018) (“Raina did not raise arguments under Rule 60(b)(2) or (3) in front of the 

district court, precluding him from raising those arguments here.”); Malik v. United States Dep’t 

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of Homeland Sec., No. 22-107772, 2023 WL 5211651, at *7 (5th Cir. Aug. 15, 2023) (“The proper 

procedure for addressing such ‘newly discovered evidence’ would be for Malik to ‘file[ ] a Rule 

60(b)(2) motion to set aside the judgment in the district court’ and to ‘seek[ ] an indicative ruling 

pursuant to Rule 62.1.’”). Given that Plaintiffs intend to address the below new circumstances on 

appeal, out of an abundance of caution Plaintiffs hereby first present them to this Court under Rule 

60(b).

A. The Coast Guard’s New Policy Awards Automatic Promotions and Advancements 

for Previously Separated Members, But Not for Plaintiffs.

On August 11, 2023, the Coast Guard issued ALCOAST 291/23, which announced a “reaccession” process to “assist Coast Guard members (active duty and reserve) who separated –

voluntarily or involuntarily – due to the previously mandated COVID-19 vaccination.” 

(ALCOAST 291/23 at ¶A(1).)1 The Coast Guard did not give notice of this policy to the Court or 

Plaintiffs’ counsel. The policy states that “those who had promotions or advancements withheld 

solely due to their COVID-19 vaccination status will have those promotions or advancements 

restored during the re-accession process.” (Id. at ¶A(5) (emphasis added).) In other words, the 

Coast Guard is undoing its discriminatory policy of prohibiting Coast Guard service members from 

promoting or advancing due to their vaccination status. And it has committed a dedicated team to 

the task, allowing the Coast Guard to tell returning service members that their return process will 

take only about 30 days. (Id. at ¶ A(4).)

However, ALCOAST 291/23 only relieves service members who a) separated due to the 

mandate, and b) were selected for promotion prior to the Coast Guard instructing selection boards 

to categorically deny promotion to anyone having a recorded CG-3307 documenting mandate 

1 https://www.dcms.uscg.mil/ppc/news/Article/3490753/alcoast-29123-sitrep-1-implementationof-return2service-team-r2st/. 

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noncompliance, but were forced out of service before promoting. (ECF No. 73 at 11.) The Coast 

Guard continues refusing to issue any such similar relief for the Plaintiffs in this case, as recounted 

in previous filings and summarized in their Supplemental Brief in Support of their Motion for 

Preliminary Injunction and Opposition to the Coast Guard’s Motion to Dismiss. (ECF No. 95.) In 

particular, the Coast Guard has insisted that Plaintiff Michael Marcenelle apply for the opportunity 

for a special selection board (SSB) to reconsider him for his unlawfully denied and otherwise 

regularly scheduled promotion, which application wasn’t granted until Plaintiffs notified this Court 

about the Coast Guard’s ongoing failure to grant it. (Id., Br. at 9-10.) And the Coast Guard still 

refuses to issue any guidance prohibiting selection boards from considering vaccination status, 

unlike their Navy brethren, to ensure that the promotion will be granted. (Id., Br. at 4-5, 10, & n.4.) 

Even if Plaintiff Marcenelle is selected, the Coast Guard has refused to provide any 

assurances that his promotion will be promptly announced and made effective. (ECF No. 97 at n.2) 

In fact, history shows that the Coast Guard will likely keep his selection a secret until at least 

December. (Id.). Thus, while the Coast Guard utterly refuses to provide Plaintiff Marcenelle any 

guarantees of success or timeliness to resolve his denied promotion (his dedication to continued 

service notwithstanding), the Coast Guard is providing certain and speedy resolution to those who 

separated.

ALCOAST 291/23 thus confirms that with respect to Plaintiffs and similarly situated 

service members, the Coast Guard has failed to “completely and irrevocably eradicate[] the effects 

of” its illegal COVID-19 vaccine mandate and religious accommodation process, as it must to 

demonstrate mootness. Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979); accord U.S. Navy 

Seals 1-26 v. Biden, 72 F.4th 666, 674 (5th Cir. 2023) (acknowledging Navy “promulgated multiple 

binding policies . . . eradicat[ing] the effects of the mandate” (emphasis added)). See also Missouri 

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v. Biden, No. 23-30445, 2023 WL 5821788, at *7 (5th Cir. Sept. 8, 2023) (“Past harm can constitute 

an injury-in-fact for purposes of pursuing injunctive relief if it causes ‘continuing, present adverse 

effects.’”) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). The Coast Guard’s 

promulgation of a binding policy eliminating the effects of the mandate for separated-andreturning service members, while refusing to ensure such relief for Plaintiffs and similarly situated 

service members who did not separate, confirms that Plaintiffs’ claims are not moot. (See ECF No.

95, Br. at 6-11, 12-19.) It also shows that the Coast Guard has the ability to grant the relief 

requested in a prompt manner, but obstinately and unreasonably withholds relief for Plaintiffs.

This manifest inequity and injustice cries out for relief under Rule 60(b). 

B. Biden Administration is Now “Encouraging” COVID-19 Vaccination, After 

Announcing Desire to “[A]gain [R]equire” COVID-19 Vaccine in the Military.

On August 28, 2023, 11 days after this Court’s order of dismissal and final judgment, the 

Biden Administration announced that it will officially “encourage” Americans to get an updated 

vaccine upon its release later this month, in order to target so-called “XBB variants,” allegedly the 

most common current strain of COVID-19.

2 The Administration did not say whether it would reimpose a mandate on its employees to get the updated vaccine and said it will provide additional 

details later this month.

3 On September 11, 2023, the FDA announced that it had fully approved 

the updated vaccine for individuals 12 years of age or older and for emergency use by individuals 

6 months through 11 years old.

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2 https://www.whitehouse.gov/briefing-room/press-briefings/2023/08/28/press-briefing-by-presssecretary-karine-jean-pierre-and-director-of-the-office-of-public-engagement-stephen-benjamin/; 

https://www.foxnews.com/politics/biden-administration-will-encourage-americans-to-get-newcovid-19-vaccine-kjp-says. 3 Id. 

4 https://www.fda.gov/news-events/press-announcements/fda-takes-action-updated-mrna-covid19-vaccines-better-protect-against-currently-circulating.

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The Administration’s new announcements raise particularly heightened concern for these 

Plaintiffs in light of its previously expressed opposition to additional proposed protections in the 

2024 National Defense Authorization Act (NDAA) for service members who had previously 

separated because of the COVID-19 vaccine mandate, and its express desire to retain authority to 

“again require COVID-19 vaccination” for military service members. (ECF No. 95, Br. at 8 & 

n.3.) Notably, the Biden Administration’s criticisms were directed at Sections 564 and 525 of the 

proposed NDAA as of July 10, 2023 (see id.), which sections have not yet been included in the 

final bill.

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Accordingly, the Biden Administration’s post-judgment announcements further show it has 

failed to make “absolutely clear that the defendants’ challenged conduct could not reasonably be 

expected to recur.” Navy Seals 1-26, 72 F.4th at 673. Thus Plaintiffs’ claims cannot be moot for 

this separate and independent reason, thereby justifying Rule 60(b) relief.6

CONCLUSION

For the foregoing reasons, this Court should grant Plaintiffs’ motion for relief from its 

order of dismissal and final judgment pursuant to Rule 60(b).

5 https://www.congress.gov/bill/118th-congress/house-bill/2670/text. 6 Notably, the official Coast Guard website still says that the COVID-19 vaccine is mandatory. 

https://www.uscg.mil/Coronavirus/Information/Article/2753898/mandatory-vaccination-formilitary-members-faqs/ (“Q: Is the COVID-19 vaccination mandatory for all service 

members? A: Yes. All Coast Guard active duty and Ready Reserve members who are not fully 

vaccinated, and do not fall within an approved exception, must now be vaccinated against 

COVID-19.”) (last visited September 12, 2023).

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Dated: September 13, 2023

Respectfully submitted,

/s/ Nathan Loyd

Stephen Crampton, pro hac vice Charles W. Fillmore

THOMAS MORE SOCIETY – Senior Counsel State Bar # 00785861

PO Box 4506 H. Dustin Fillmore III

Tupelo, MS 38803 State Bar # 06996010

(662)255-9439 THE FILLMORE LAW FIRM, L.L.P.

scrampton@thomasmoresociety.org 201 Main Street, Suite 700

Fort Worth, TX 76102

Michael G. McHale, pro hac vice (817)332-2351

THOMAS MORE SOCIETY – Counsel chad@fillmorefirm.com

10506 Burt Circle, Ste. 110 dusty@fillmorefirm.com

Omaha, NE 68114

(402)501-8586 Nathan Loyd, pro hac vice

mmchale@thomasmoresociety.org THOMAS MORE SOCIETY – Special Counsel

5101 Old Highway 5, Box 442

Adam S. Hochschild, pro hac vice Lebanon, GA 30146

Hochschild Law Firm (559)744-3664

THOMAS MORE SOCIETY – Special Counsel nathaniel.loyd@thomasmoresociety.org

PO Box 401 

Plainfield, VT 05667

(314)503-0326

adam@hochschildlaw.com

Mary Catherine Hodes, pro hac vice

THOMAS MORE SOCIETY – Special Counsel

112 S. Hanley Rd., Second Floor

Clayton, MO 63105

(314)825-5725

mchodes@thomasmoresociety.org

Paul M. Jonna, pro hac vice

LiMandri & Jonna LLP

THOMAS MORE SOCIETY – Special Counsel

P.O. Box 9120

Rancho Santa Fe, CA 92067

(858)759-994

pjonna@limandri.com

Counsel for Plaintiffs

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