UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

ERIC JACKSON, et. al., 

 Plaintiffs, 

 v. 

ALEJANDRO N. MAYORKAS, 

Secretary of Homeland Security, et al., 

 Defendants. 

Case No. 4:22-cv-0825-P 

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REPORT REGARDING 

THE RESCISSION OF THE COVID-19 VACCINATION REQUIREMENT 

Defendants respectfully submit this response to Plaintiffs’ report regarding the rescission 

of the Coast Guard’s COVID-19 vaccination requirement, ECF No. 64. 

As Defendants previously reported, the National Defense Authorization Act for Fiscal Year 

2023, signed into law on December 23, 2022, directs the Secretary of Defense to rescind his August 

2021 memorandum requiring that service members be vaccinated against COVID-19. ECF No. 

53. The Secretary of Defense complied with that directive on January 10, 2023. ECF No. 64-2. In 

addition to revoking the vaccination requirements set forth in the August 2021 memorandum, the 

rescission memorandum directs military departments to “update the records of . . . individuals to 

remove any adverse actions solely associated with denials of” requests for exemption from the 

vaccination requitement. Id. at 1. 

The next day, to maintain alignment with the Department of Defense, the Coast Guard 

cancelled ALCOAST 305/21 and 315/21, which similarly required COVID-19 vaccination for 

members of the Coast Guard. ECF No. 64-1. The Coast Guard also immediately stopped all 

involuntary administrative separations resulting from violations of orders to become vaccinated 

and indicated that “[f]urther guidance on other administrative actions . . . is forthcoming.” Id. 

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On January 25, 2023, immediately before Plaintiffs filed their report, the Coast Guard 

cancelled two other policies associated with the rescinded vaccination requirement. Exhibit 1. 

First, the Coast Guard cancelled ALCGPSC 016/22, which precluded enlisted members and 

officers who were not vaccinated against COVID-19 from receiving permanent change of station 

orders. Second, the Coast Guard cancelled ALCGPSC 104/21, which imposed vaccination 

requirements for training and education courses and for command positions. As explained in 

further guidance issued on January 25 and 26, the Coast Guard has now cancelled all assignment 

and training restrictions related to COVID-19 vaccination for both enlisted members and officers.1

Exhibit 2, ALCGOFF 005/23 ¶ 3 (relating to officers); Exhibit 3, ALCGENL 013/23 ¶ 3 (relating 

to enlisted members). Further, the Coast Guard’s guidance makes clear that “refusal of the COVID19 vaccination alone does not require the withholding of advancement” for enlisted members, that 

those whose advancement was previously withheld due to their vaccination status are “encouraged 

to compete in the 2023” advancement panels, and that commanding officers must amend previous 

recommendations against advancement that were based solely on a member’s refusal to become 

vaccinated against COVID-19. Ex. 3 ¶ 4.A–C. The Coast Guard expects to issue further guidance 

related to the rescission, including guidance to align with the Secretary of Defense’s directive to 

remove adverse actions associated with denied exemption requests. Cf. id. ¶ 1 (contemplating 

“[a]dditional guidance”). 

Given the rescission of the COVID-19 vaccination requirement, the cancellation of 

associated restrictions, and the Coast Guard’s plan to align itself with the Secretary of Defense’s 

directive to remove any adverse actions for members whose request for an exemption was denied, 

1

 Plaintiffs’ statement that the guidance is “applicable to enlisted members only,” ECF No. 

64 at 1 n.2, is not correct. 

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Defendants submit that the purported irreparable harm underlying Plaintiffs’ motion for a 

preliminary injunction has dissipated, the proposed class is not certifiable, and this case is moot.2

Nevertheless, Defendants remain willing to honor the tentative agreement that the parties reached 

during the settlement conference, as described by Plaintiffs’ counsel on the record. See ECF No. 

63 (transcript of sealed proceedings). That is, Defendants propose that the Court proceedings until 

the Department of Defense and the Coast Guard have resolved outstanding policy issues and 

published further guidance implementing the rescission of the COVID-19 vaccination 

requirement. During the stay, the Coast Guard will not take any additional adverse action against 

any of the named Plaintiffs based on his COVID-19 vaccination status and will consider in good 

2

 In urging their position that the case is not moot, Plaintiffs complain that, among other 

things, the Coast Guard’s cancellation order and guidance to date do not guarantee 

“expunge[ment]” of records concerning Plaintiffs’ vaccination status and “remediation” for 

trainings, promotions, and awards that certain named Plaintiffs allegedly missed due to their 

unvaccinated status. ECF No. 64 at 2. But even assuming those alleged harms are encompassed 

within the complaint (and there appear to be no allegations supporting such specific relief), there 

are intra-service procedures for obtaining such “expunge[ment]” and “remediation,” and Plaintiffs 

cannot evade their mootness problem by failing to first exhaust “available intraservice corrective 

measures.” Hodges v. Callaway, 499 F.2d 417, 419–20 (5th Cir. 1974) (quoting Mindes v. Seaman, 

453 F.2d 197, 201 (5th Cir. 1971)); Schelske v. Austin, No. 6:22-cv-049-H, 2022 WL 17835506, 

at *12 (N.D. Tex. Dec. 21, 2022) (“taking the Fifth Circuit’s lead” and applying Mindes in military 

vaccination case); see alsao Von Hoffburg v. Alexander, 615 F.2d 633, 637–38 (5th Cir. 1980) (“In 

the military context, the exhaustion requirement promotes the efficient operation of the military’s 

judicial and administrative systems, allowing the military an opportunity to fully exercise its own 

expertise and discretion prior to any civilian court review.”). In addition, the demand by some 

Plaintiffs to be placed retroactively into officer positions is nonjusticiable. See Orloff v. 

Willoughby, 345 U.S. 83, 90 (1953) (“It is obvious that the commissioning of officers in the Army 

is a matter of discretion within the province of the President as Commander in Chief.”); Kreis v. 

Sec’y of Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989) (“Appellant’s request for retroactive 

promotion falls squarely within the realm of nonjusticiable military personnel decisions.”). Also 

nonjusticiable are claims that Plaintiffs should have been assigned to certain trainings and courses. 

See Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (“The complex, subtle, and professional decisions 

as to the composition, training, equipping, and control of a military force are essentially 

professional military judgments.”); see also Austin v. U. S. Navy Seals 1-26, 142 S. Ct. 1301 (2022) 

(staying preliminary injunction “insofar as it precludes the Navy form considering respondents’ 

vaccination statues in making deployment, assignment, and other operational decisions”).

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faith possible resolutions to Plaintiffs’ claims that they have been subject to past adverse actions 

because of their noncompliance with the prior vaccination requirement. The proposed stay will not 

prejudice Plaintiffs, who initially expressed support for such a stay and who face no threat of harm 

from the rescinded vaccination requirement. Moreover, additional guidance from the Department 

of Defense and the Coast Guard may address the harms claimed by Plaintiffs—just as the guidance 

issued on January 25 and 26 addresses their claimed harms about restrictions on training and 

advancement3—and thereby reduce or eliminate the issues that Plaintiffs would seek to litigate. 

If, however, the Court does not enter a stay, Defendants intend to file a motion to dismiss 

this case as moot4

 and propose that they be permitted three weeks from the Court’s scheduling 

order to do so. Should the Court direct, Defendants will also provide supplemental briefing on the 

impacts of the rescission and subsequent Coast Guard guidance on the pending motions for class 

certification and for a class-wide preliminary injunction. In part, and in addition to the reasons set 

forth in Defendants’ opposition brief, Plaintiffs’ proposed class fails because they cannot show that 

any members of that class—especially those who never received an order to vaccinate and 

therefore suffered no prior adverse action—have the requisite injury to obtain relief. See 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“Article III does not give federal courts 

3

 The trainings that Plaintiffs wish to be “offered” and “prioritized” for, ECF No. 64 at 3, 

are periodically held, and Plaintiffs’ vaccination status is now no barrier to them enrolling on their 

own. The Maritime Counter Trafficking training that Plaintiff Jackson identifies will take place 

twice this year in June and July. And the EMT training will occur five more times this year between 

February and September. The month-long Intelligence Officer Course that Plaintiff Stone 

mentions will occur again in August through September. And the training for Operations Section 

Chief that Plaintiff Marcenelle wants to attend will recur in March and again in August. As of 

today, there are seats remaining in each of these courses. 

4

 Defendants note that, 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 Congress’s directed rescission of the COVID-19 vaccination requirement. See 

Order, U.S. Navy SEALs 1–26 v. Biden, No. 22-10077 (5th Cir. Jan. 4, 2023). The parties filed 

their supplemental briefs in that case on January 27, 2023. 

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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)). And a preliminary 

injunction should not issue for the additional reason that the only alleged irreparable harm to the 

class—“pressure on thousands of service members to violate their religious beliefs” and become 

vaccinated, ECF No. 5 at 305—has entirely dissipated because the rescission of the vaccination 

requirement has removed any such pressure. 

For the foregoing reasons, Defendants respectfully propose that the Court stay this case 

until the Coast Guard determines that it has completed the promulgation of all generally applicable 

policies implementing the cancellation of ALCOAST 305/21 and 315/21 that are relevant to this 

case. Once it has done so, Defendants propose to confer with Plaintiffs and file a joint notice with 

the Court advising what, if any, issues remain to be litigated and, if necessary, proposing a schedule 

for further proceedings. 

* * * 

 

5

 Page references are to the ECF-generated page numbers printed in blue at the top-right 

corner. 

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Dated: January 30, 3023 Respectfully submitted, 

BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General 

ALEXANDER K. HAAS 

Branch Director 

ANTHONY H. COPPOLINO 

Deputy Branch Director 

 /s/ Johnny Walker 

CODY T. KNAPP (NY Bar #5715438) 

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: johnny.h.walker@usdoj.gov 

Counsel for Defendants

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