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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

PARTIES’ STATUS REPORT

The parties disagree about status and next steps. Pursuant to this Court’s order [DE#80], 

the parties submit their respective positions:

I. Plaintiffs’ Position

Plaintiffs’ position is that the class should be certified, and that class-wide injunctive 

relief entered. Plaintiffs take this position in light of ongoing harm and coercion to members of 

the class. [See Response, DE#83]. Of course, Plaintiffs acknowledge that rescission of the 

vaccine mandate, if it is not followed by a new or substantially similar vaccine mandate by the 

Secretary of Defense, could make certain aspects of this case moot (but would not make moot 

claims by soldiers who have had full religious accommodation request adjudications who were 

issued orders to vaccine and did not comply —for them, the harm continues, as DE#83 

indicates). Said another way, complete rescission may affect the class definition (if complete 

rescission of the mandate occurs and it is not replaced with a new mandate, the class would then 

be limited to soldiers with Religious Accommodation Request final denials who received adverse 

actions). We note, for what it is worth, that class definitions are frequently changed, oftentimes 

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based on occurrences in the case, and this court is granted extensive discretion to make those 

changes. FRCP 23(c)(1)(C) (“An order that grants or denies class certification may be altered or 

amended before final judgment”).

Further, we asked Defendants to pause all additional adverse actions (including to pause 

General Officer Memoranda of Reprimand and to restore reservists and national guard members 

to pay and points status), while the effects of the National Defense Authorization Act are 

assessed by Defendants, but they did not respond to, or agree to, that request. See Exhibit A 

(emails). That indicates ongoing harm. Plaintiffs acknowledge, of course, that the temporary 

pausing of separations ameliorates the very worst of the harm. But continuing adverse personnel 

actions against the putative class, which results in career altering denial of promotions, reenlistments, denial of pay or retirement points for reservists and national guard members, and 

administrative flagging that is coercive, is also irreparable harm. U.S. Navy Seals 1-26 v. Biden, 

27 F.4th 336, 348, 353 (5th Cir. 2022).

We acknowledge, of course, that the landscape may change over the next 30 days. But 

we must take this case as we find it today, not based on what tomorrow or next week or next 

month might bring. And today, there is ongoing irreparable harm to approximately 10,000 

soldiers, and a lack of an agreement by Defendants to cease that harm. 

II. Defendants’ Position

1. On December 22, 2022, the Court ordered the parties to confer and inform the Court 

how they propose to proceed in light of the status of this litigation and legislative developments 

surrounding the National Defense Authorization Act for Fiscal Year 2023 (“NDAA”).

Additionally, the Secretary of the Army is awaiting the rescission of the mandate by the Secretary 

of Defense, and any guidance from the Department of Defense that accompanies the recission to 

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determine what, if any actions are required for implementation. On December 23, 2022, the NDAA 

was signed into law and on December 28, 2022, the Army suspended “all processing and initiation 

of separation actions of Soldiers based solely on Covid-19 vaccine refusal.” ECF No. 82 at 1.1

2. Defendants request that the Court briefly defer deciding how to proceed with this 

case until the Secretary of Defense issues the recission required by the NDAA. Once the Secretary 

rescinds the August 24, 2021, COVID-19 vaccination requirement, Defendants propose that the 

parties confer about the scope of that recission and, in light of that, submit a further status report 

to the Court within five business days describing what, if any, issues remain to be litigated and 

proposing a schedule to do so. In addition, Defendants request that the Court stay Defendants’ 

deadline to answer or otherwise respond to the complaint—currently January 11, 2023—pending 

further order of the Court. Under the terms of the NDAA, the recission must issue within two 

weeks—by January 22, 2023—but may be even sooner. Defendants will promptly notify the Court 

when the recission is issued. 

2. The imminent recission of the COVID-19 vaccination requirement will have a 

significant impact on this case, including on the pending motions for class certification and for a 

class-wide preliminary injunction. For example, Plaintiffs’ claim that the August 24, 2021, 

COVID-19 vaccination policy violates religious liberties and should be enjoined, Compl. at 23,

1

 On January 6, 2023, Plaintiffs filed a response to Defendants’ notice regarding the 

suspension of separations, stating that counsel for Defendants’ “did not respond” to a series of 

questions posed by counsel for Plaintiffs. ECF No. 83. In fact, counsel for Defendants emailed 

counsel for Plaintiffs before they filed their notice and indicated that those questions “should be 

addressed after the Secretary issues the recission.” Plaintiffs also cite paragraph 3.D.29 of FRAGO 

35 to accuse the Army of viewing the NDAA as inapplicable to ready reserves and the national 

guard. Id. at 1–2. Defendants inform the Court that, on January 5, 2023, the Army issued FRAGO 

36, which rescinds paragraph 3.D.29 of FRAGO 35. Further, as none of the named Plaintiffs are 

members of the reserves or national guard, they are not similarly situated to those individuals and 

may not seek class-wide relief on their behalf.

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will become moot, see U.S. Dep’t of Treasury v. Galioto, 477 U.S. 556, 559–60 (1986) (holding 

that an issue becomes moot when intervening legislation “alters the posture” of a case); Veasey v. 

Abbott, 888 F.3d 792, 799 (5th Cir. 2018) (“Ordinarily, a[n] [action] challenging a statute would 

become moot by the legislature's enactment of a superseding law.”).

2

In addition, certification of 

the proposed class, which includes individuals who have yet to receive a decision on their religious 

accommodation requests and have not received orders to vaccinate, see ECF No. 48 at 1, will be 

improper because those purported class members will no longer be subject to the August 24, 2021, 

vaccination requirement. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“Article 

III does not give federal courts the power to order relief to any uninjured plaintiff, class action or 

not.” (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 466 (2016) (Roberts, C.J., 

concurring)).

3 At the very least, the parties will need to submit supplemental briefing on this issue. 

Also, the purported irreparable harm cited in support of the class-wide preliminary injunction—

“the crisis of conscience imposed by the mandate,” ECF No. 51 at 6—will dissipate when the

vaccination requirement is rescinded. Plaintiffs’ assertions about the scope of the imminent 

rescission are speculative. The Court should proceed based on the content of the rescission itself, 

not Plaintiffs’ assumptions.

4. On December 29, 2022, Defendants filed a notice informing the Court that Army 

leadership had made the decision to suspend all processing and initiation of separation actions of 

Soldiers based solely on Covid-19 vaccine refusal. ECF No. 82 at 1. In that notice, Defendants 

2

Indeed, in litigation challenging the Navy’s COVID-19 vaccination requirement, the Fifth 

Circuit Court of Appeals ordered supplemental briefing on the issue of mootness in light of the 

NDAA. See Order, U.S. Navy SEALs 1–26 v. Biden, No. 22-10077 (5th Cir. Jan. 4, 2023); see also 

Order, U.S. Navy SEALs 1–26 v. Biden, No. 22-10077 (5th Cir. Jan. 9, 2023) (extending the 

deadline to file supplemental briefs on mootness to January 27, 2023).

3 Even absent the rescission, class certification is improper for the reasons set forth in 

Defendants’ opposition to the motion for class certification. ECF No. 70.

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also explained that four Soldiers had been separated from the Army prior to the preliminary 

injunction hearing on December 16, 2022, but had effective dates of discharge between 

December 16 and December 21, 2022. Id. at 2-3. Defendants further informed the Court that 

reinstatement would be offered to those four Soldiers based on their unique circumstances, and 

that an update would be provided with the instant filing. Id. at 3. The undersigned counsel has 

been advised by the Army that each of the four Soldiers has now been contacted by the Army 

with an offer of reinstatement, that three Soldiers have declined that offer, and that the fourth

Soldier has indicated an interest in reinstatement and the Army is in the process of implementing 

that request.

Dated: January 6, 2023 Respectfully submitted, 

/s/ Aaron Siri .

Aaron Siri (admitted PHV)

Elizabeth A. Brehm (admitted PHV) 

Wendy Cox (TX 24090162)

Dana Stone (admitted PHV)

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 

/s/Christopher Wiest

Christopher Wiest (admitted PHV)

Chris Wiest, Atty at Law, PLLC 

25 Town Center Boulevard, Suite 104

Crestview Hills, KY 41017

(513) 257-1895 (vc)

(859) 495-0803 (f)

chris@cwiestlaw.com 

Thomas Bruns (admitted PHV)

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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

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General 

ALEXANDER K. HAAS

Branch Director

ANTHONY J. COPPOLINO

Deputy Branch Director

 /s/ Keri Berman

KERI BERMAN

JOHNNY H. WALKER (D.C. Bar #991325)

Trial Attorneys

United States Department of Justice

Civil Division, Federal Programs Branch

1100 L Street NW, Rm. 12304

Washington, D.C. 20530

Tel.: (202) 514-3183 / Fax: (202) 616-8460

Email: keri.l.berman@usdoj.gov

Counsel for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on January 9, 2023, a true and correct copy of this Status Report was 

served by CM/ECF on all counsel or parties of record.

/s/ Christopher Wiest

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