1

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

JOINT STATUS REPORT

I. Plaintiffs’ Position

Plaintiffs, through Counsel, submit this status report. [DE#86]. Before laying out 

Plaintiffs’ position, there are significant unanswered questions about the recent memorandum from 

the Secretary of Defense. We communicated with Defendants in an attempt to obtain answers to a 

number of those questions, but were unsuccessful other than Defendants confirmed their position 

that the named Plaintiffs will suffer no ongoing harm and the case is moot – a position that we 

fundamentally disagree with because it is both factually and legally incorrect. (See Exhibits A & 

B).

Bringing same into focus, the following chart lists the harms that have occurred to the 

putative class, whether Secretary of Defense’s Memorandum corrects each harm, the parties’

respective positions regarding same, and the Plaintiffs’ proposed remedy:

Case 6:22-cv-00049-H Document 87 Filed 01/18/23 Page 1 of 12 PageID 2027
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HARM

CORRE

C-TED 

BY 

SECDEF

'S 

ORDER

WHEN? GOVERNMENT'S 

POSITION

PLAINTIFF'S 

RESPONSE

PLAINTIFFS' REQUESTED 

FINAL REMEDY

GOMOR (General Officer 

Memo. of Reprimand) Yes Unknown

It will eventually be 

corrected Not yet corrected

Remove from all Official Military 

Personnel Files ("OMPF")

Non-Judicial Punishment 

(Article 15) Uncertain Unknown

Was not required by 

Army policy (so no)

Imposable at other 

command levels. Remove from OMPF

Adverse Enlisted Evaluation 

Reports Uncertain Unknown

Was not required by 

Army policy (so no)

Imposable at other 

command levels. Remove from OMPF

Adverse Officer Evaluation 

Reports Uncertain Unknown

Was not required by 

Army policy (so no)

Imposable at other 

command levels. Remove from OMPF

Counseling Statements for Failure to 

Obey Lawful Order (Art. 90 and 92) Uncertain Unknown

They claim it does 

not matter (so no)

Imposable at other 

command levels. Remove from OMPF

Suspension of Favorable 

Personnel Actions ("Flags") Uncertain Unknown Did not address this

Flags removed from 

soldier's file

Remove from OMPF and any 

DOD systems or personnel docs

Rank Reduction No N/A Not addressed

Anyone who lost rank 

needs to have it restored Restore rank with back pay

Promotions prevented or not 

selected b/c of adverse actions No N/A Did not address this

Order special promotion 

board Order special promotion board 

Promotions awarded that were 

Rescinded No N/A Did not address this

Restore promotion with 

back pay Restore promotion with back pay

Unable to attend schools needed 

for promotion/career advancement No N/A Did not address this

Provide lost educational 

opportunity

Provide lost educational 

opportunities

Loss of Pay and Points for 

Reservists and Guard Soldiers No N/A

Indicated no named 

Ps in this category

The Gov’t’s position is 

foreclosed by precedent

Restore pay and points for all drill 

and annual training lost 

Removal from active reserve 

status No N/A

Indicated no named 

Ps in this category

The Gov’t’s position is 

foreclosed by precedent

Restore Reservists/Guard Soldiers to 

drilling status so can drill and be paid

Negative/Adverse Separation 

Codes on DD214 in Block 26 No N/A

Indicated no named 

Ps in this category

The Gov’t’s position is 

foreclosed by precedent

Remove all adverse separation codes in Block 26 

on DD214 and replace with a favorable code

Negative/Adverse Reasons for 

Separation in Block 28 of DD214 No N/A

Indicated no named 

Ps in this category

The Gov’t’s position is 

foreclosed by precedent

Remove all adverse reasons for 

separation on Soldier's DD214

Ineligible to Reenter the Service 

Code in Block 27 on DD214 No N/A

Indicated no named 

Ps in this category

The Gov’t’s position is 

foreclosed by precedent

Update code in Block 27 on 

DD214 to allow service reentry

Involuntary Separation No N/A

Indicated no named 

Ps in this category

The Gov’t’s position is 

foreclosed by precedent

Contact each separated Soldier 

and provide opportunity to return

Below Honorable Discharges (i.e. 

General discharges) and resulting 

loss of certain veterans benefits No N/A

Indicated no named 

Ps in this category

The Gov’t’s position is 

foreclosed by precedent

Upgrade discharge 

characterization to "Honorable" 

from "General" in Block 24

Failure to grant religious accom.

to C-19 V requirement No N/A Did not address this

Still discriminating 

against religious believers

Class will be provided a process 

that is not discriminatory

Remedy additional lingering 

effects of discrimination No N/A Did not address this

Need root and branch 

relief

All Army personnel involved in the 

religious exemption process to 

receive religious sensitivity training

The foregoing chart makes clear that the Secretary of Defense’s Memorandum will, at best, 

result in only a portion of the relief sought in this case may eventually become moot. For instance, 

Case 6:22-cv-00049-H Document 87 Filed 01/18/23 Page 2 of 12 PageID 2028
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the Secretary of Defense directed the lifting of the vaccination mandate, and directed the military 

departments to update the records of individuals to remove “adverse actions.” [Memo., DE#85-

1]. In asking the question of what constitutes an adverse action, Plaintiffs did not get an answer. 

That said, until all adverse actions are actually removed, which only constitutes a portion 

of the relief request in this action (see chart above), nothing is rendered moot. We have confirmed 

that, as of the date of this filing, no adverse actions have actually been removed. Critically, it is 

Defendants’ burden to demonstrate that “subsequent events [must] make it absolutely clear that 

the allegedly wrongful behavior could not reasonably be expected to recur.” Trinity Lutheran 

Church of Columbia, Inc., v. Comer, 137 S.Ct. 2012, 2019 n.1, 198 L. Ed. 2d 551 (2017) (cleaned 

up) (emphasis added). That has plainly not occurred including because we do not even know the 

timeline upon which the undefined remedial actions the Army will purportedly take will occur and 

the Army has yet to inform Plaintiffs of what actions it is going to take and when. 

Consider SSG Costroff and SSG Schelske, from whom the Court heard testimony. Since 

the Secretary of Defense’s Memorandum rescinding the COVID-19 vaccine mandate, both have 

been denied the ability to attend the Senior Leadership Course (“SLC”) solely due to their 

unvaccinated status. This school is required for their promotion to Sergeant First Class. 

Consequently, and despite lifting the mandate, Defendants continue to unlawfully discriminate 

against SSG Costroff and SSG Schelske. Considering the Army’s “up or out” system, both will 

likely be discharged due to their inability to progress in their career fields and solely because of 

ongoing “adverse actions” taken against them due to their unvaccinated status. 

Also consider the thousands of Army reservists who have been denied pay and points since 

July 2022: in other words, shelved (and denied retirement credit) for the last six months. Will the 

Army remove these adverse actions and make them whole? Defendants have not indicated that 

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this will be the case. In fact, their position is that it is effectively none of our business because 

there are currently no named Plaintiffs who are reservists. This is akin to the argument rejected by 

the Sixth Circuit in Doster v. Kendall, ---F.4th ---, 2022 U.S. App. LEXIS 32847 at *86-*87 (6th 

Cir. Nov. 29, 2022), and Doster v. Kendall, 48 F.4th 608, 614-615 (6th Cir. 2022), where 

Defendants in that case made the same flawed argument that relief could not extend beyond the 

named Plaintiffs, and where the Sixth Circuit twice told the Government that the theory in question 

was foreclosed by Gratz v. Bollinger, 539 U.S. 244, 263-67, 123 S. Ct. 2411, 156 L. Ed. 2d 257 

(2003).

How about Army members who were discharged with discharges that were not full 

Honorable Discharges (or had DD-214’s – the military’s discharge paperwork – that prevented reenlistment or re-commissioning)? Not to mention the difficulty that this will surely cause them in 

seeking civilian employment. Will the Army remove these adverse actions and make them whole? 

Defendants have not indicated that these members will be made whole, again erroneously resting 

on their “well, you don’t have any named Plaintiffs in that category” theory that is foreclosed by 

Gratz, 539 U.S. 244, 263-67 (2003).

What about the mandate itself? The Secretary of Defense lifted it because Congress told 

him to. Could he reimpose a similar mandate or continue to discriminate against Plaintiffs through 

other directives or policy solely due to their lack of being vaccinated with the COVID-19 vaccine?

The NDAA certainly permits him to do so as does Defendants’ own mandate rescission memo. 

“A defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to 

moot a case.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 

(2000). "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 Castle, Inc., 455 U.S. 283, 289 (1982).

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As the United States Supreme Court has observed:

We have recognized, however, that a defendant cannot 

automatically moot a case simply by ending its unlawful conduct 

once sued. Otherwise, a defendant could engage in unlawful 

conduct, stop when sued to have the case declared moot, then pick 

up where he left off, repeating this cycle until he achieves all his 

unlawful ends.

Given this concern, our cases have explained that a defendant 

claiming that its voluntary compliance moots a case bears the 

formidable burden of showing that it is absolutely clear the allegedly 

wrongful behavior could not reasonably be expected to recur.

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013).

In Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017), 

the Supreme Court held that a governor’s change in policy does not moot a case. Rather, the court 

held that the defendant must show that it is “absolutely clear the allegedly wrongful behavior 

could not reasonably be expected to recur.” Friends of the Earth, Inc., 528 U.S. 167 at 190.

Therefore, the temporary lifting of the mandate does not come close to meeting 

Defendants’ formidable burden. Defendants have “neither asserted nor demonstrated that [he] 

will never resume the complained of conduct.” 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”).

“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 

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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.

The Supreme Court has noted that in addition to a court retaining the ability to hear a case 

after voluntarily cessation (considerations of mootness), “the court's power to grant injunctive 

relief survives discontinuance of the illegal conduct.” United States v. W. T. Grant Co., 345 U.S. 

629, 633 (1953). “The necessary determination is that there exists some cognizable danger of 

recurrent violation....” Id.

We observe, also, that a class certification motion has been filed and is fully briefed. That, 

in turn, raises other issues in this matter, with respect to follow on relief – namely that the action 

must generally be moot as to the class as a whole, to be moot. Franks v. Bowman Transp. Co., 

424 U.S. 747 (1976); Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981); Genesis 

Healthcare Corp. v. Symczyk, 569 U.S. 66, 75-76, 133 S. Ct. 1523, 185 L. Ed. 2d 636 (2013).

In fact, Fifth Circuit precedent supports that position. Castillo v. Cameron County, 238 

F.3d 339, 343, n.1 (5th Cir. 2001), citing Davis v. Ball Mem'l Hosp. Ass'n., Inc., 753 F.2d 1410, 

1416 (7th Cir. 1985) ("When the claims of all the class members are moot, the action is moot."). 

See generally CHARLES ALAN WRIGHT ET AL., 13A FEDERAL PRACTICE AND 

PROCEDURE § 3533.9, at 401 (2d ed. 1984) ("If the claim of the entire class is moot, the case is 

finished.").

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One of the greatest challenges, at present, is that Defendants are not and have not been 

transparent with what they intend to do, and on what timeframe. We find this concerning at best 

and suspicious at worst, particularly in light of their refusal to answer basic questions. Plaintiffs 

do not want to ask the Court to invest time and resources on issues that are going to go away in a 

short timeframe (again, we do not know the timeframe, and we do not know what is going to go 

away). But in the same vein, there is real ongoing harm to the named Plaintiffs and to the putative 

class that warrants relief.

Plaintiffs’ Response to the Court’s Order of January 11, 2023

Plaintiffs’ position is that the class should be certified, as prayed for. No claims (whether 

those of the named Plaintiffs or putative class members) are moot at present – the adverse 

paperwork remains of record and, at some point in the future, it will be removed which then would 

be the appropriate juncture to address potential mootness. At a minimum, the class should be 

certified, even if this Court adopts a wait-and-see approach to preliminary injunctive relief. 

Plaintiffs take this position in light of what they believe are a number of ongoing issues. (See 

Exhibit A.) We note, again, that class definitions are frequently changed, oftentimes based on 

occurrences in the case, and this court is granted extensive discretion to make those changes, which 

can be best informed by Defendants being transparent about what they will correct, and what they 

will not correct. FRCP 23(c)(1)(C) (“An order that grants or denies class certification may be 

altered or amended before final judgment”).

In terms of whether the class-wide preliminary injunction should also issue, it should. 

There is ongoing harm. We do acknowledge that it is at least conceivable that some of that harm

may be voluntarily addressed by Defendants in the next 30-60 days (see chart above) and any relief 

granted to the class can be appropriately modified or addressed at that time.

Case 6:22-cv-00049-H Document 87 Filed 01/18/23 Page 7 of 12 PageID 2033
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In any event, we anticipate, at this juncture, additional litigation. There is no indication 

that Defendants are going to remove adverse actions in the next 30 days – in fact there is no 

indication of what the timeline is going to be. There is no indication that Defendants are going to 

restore reservists or national guard to pay and points, or what that timeline will be. There is no 

indication that Defendants are going to make whole soldiers like SSG Costroff and SSG Schelske. 

There is no indication that discharges will be upgraded or that discharge paperwork (DD214’s) 

will be corrected.

We, again, 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 unknowns and possibilities of what 

tomorrow or next week or next month might bring. Promises, without the teeth of a court order, 

are simply not sufficient nor prudent for the type and degree of harms occurring to the putative 

class.

The Court also asked us to address a case schedule. We do so now, understanding that the 

relief that ultimately is appropriate may be a moving target. Plaintiffs suggest seven months for 

fact discovery, with a cutoff of July 31, 2023, expert disclosures by the parties by July 31, 2023, 

rebuttal experts by August 31, 2023, an expert discovery deadline of October 15, 2023, a 

dispositive motion deadline of November 30, 2023, with briefing to follow the local rules, and, if 

necessary, a bench trial in early 2024.

II. Defendants’ Position

1. On December 23, 2022, the National Defense Authorization Act for Fiscal Year 

2023 (“NDAA”) was signed into law, directing the Department of Defense, inter alia, to rescind 

its Covid-19 vaccination mandate within 30 days. On January 10, 2023, the Secretary of Defense 

issued a memorandum rescinding his August 24, 2021 memorandum “Mandatory Coronavirus 

Case 6:22-cv-00049-H Document 87 Filed 01/18/23 Page 8 of 12 PageID 2034
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Disease 2019 Vaccination of Department of Defense Service Members,” and his November 30, 

2021 memorandum, “Coronavirus Disease 2019 Vaccination for Members of the National Guard 

and the Ready Reserve.” ECF No. 85-1. On January 11, 2023, the Court ordered the parties to 

submit a supplemental status report indicating “what, if any, issues remain to be litigated.” ECF 

No. 86. 

2. Plaintiffs’ claims are moot and no issues remain to be litigated. Plaintiffs’ claim 

that the August 24, 2021, COVID-19 vaccination policy violates religious liberties and should be 

enjoined, Compl. at 23, is 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.”).1 To the extent 

Plaintiffs allege that they are harmed or that Defendants must be enjoined because Plaintiffs’ 

records reflect adverse actions related to their requests for religious accommodation, those claims 

are also moot. The Secretary’s rescission memorandum also states that “[t]he Military Departments 

will update records of [individuals currently serving in the Armed Forces who sought religious, 

administrative, or medical accommodations] to remove any adverse actions solely associated with 

denials of such requests, including letters of reprimand.” ECF No. 85-1.

3. Defendants will move to dismiss Plaintiffs’ complaint as moot on January 20, 2022, 

see ECF No. 86.

1

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).

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4. The Court should also deny the pending motions for class certification and for classwide injunction. The members of the purported class face no irreparable harm nor are they harmed 

at all. 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)).2 No 

member of the purported class is now subject to the August 24, 2021, vaccination requirement, 

and any claim based on that requirement is moot. 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—can no longer exist now that the vaccination requirement is rescinded. For the vast 

majority of the purported class members, whose accommodation requests or appeals were pending, 

review of their accommodation requests have ceased. ECF No. 85-1. To the extent purported class 

members’ records reflect adverse actions solely associated with the denial of accommodation 

requests, those adverse actions will be removed. Id.

5. If the Court does not conclude that the class motions must be denied on the basis 

of the rescission alone, it should order supplemental briefing to address the dramatic alteration to 

the circumstances underlying those motions. 

6. Without waiving any right to respond more completely through the appropriate 

procedural vehicle,3 Defendants respond that the harms asserted by Plaintiffs are either entirely 

speculative, mooted by the NDAA and the rescission memorandum, do not exist within the 

2 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.

3 Defendants did not have an opportunity to substantively review and consider Plaintiffs’ 

position in advance of the instant filing. Despite multiple requests and attempts to confer, 

Plaintiffs refused to provide their views on mootness or the pending class motions until 4:00 pm 

today and did not provide their full position until after 7:30 pm. Consequently, Defendants will 

respond further in their forthcoming motion to dismiss.

Case 6:22-cv-00049-H Document 87 Filed 01/18/23 Page 10 of 12 PageID 2036
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purported class, are not redressable as part of this case, and/or cannot justify preliminary 

injunctive relief. Plaintiffs have also misrepresented Defendants’ response to their various 

questions. Defendants anticipate that further guidance will be forthcoming from the Army and 

the Department of Defense that will inform implementation of the rescission, but the rescission 

of the mandate itself, along with the removal of adverse actions, moots Plaintiffs claims and 

requires denial of the class motions.

Dated: January 18, 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)

Bruns, Connell, Vollmar & Armstrong, LLC

4555 Lake Forest Drive, Suite 330

Cincinnati, OH 45242

(513) 312-9890 (vt)

tbruns@bcvalaw.com

Case 6:22-cv-00049-H Document 87 Filed 01/18/23 Page 11 of 12 PageID 2037
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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 18, 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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