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

MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 1 of 39 PageID 2201
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TABLE OF CONTENTS

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

I. Standard of Review...........................................................................................................1

II. Facts – as alleged in the Verified Amended Complaint and established via other 

evidence..............................................................................................................................2

III. ARGUMENT.....................................................................................................................8

A. Defendants have not met their formidable burden of establishing mootness.............8

B. Defendants’ Motion should be denied because the voluntary cessation exception to 

mootness applies..............................................................................................................14

C. Defendants’ Motion should be denied because the capable of repetition, yet evading 

review exception to mootness applies.............................................................................22

D. Defendants’ Motion should be denied because the pickoff/class-action exception 

applies...............................................................................................................................25

E. As to wholly past harms (which continue), Defendants’ Motion should be denied 

because the collateral consequences exception applies................................................26

1. RFRA permits wide-ranging equitable relief, which can be awarded to Plaintiffs and 

members of the putative class.........................................................................................27

2. The violation of orders by Plaintiffs and others in the class, which give rise to 

criminal liability, and in which the relevant statute of limitations has not passed, 

renders the action not moot............................................................................................28

3. The declaratory relief in this case can serve as a basis for monetary damage claims 

for members of the class (perhaps against Secretary Austin or Secretary Wormuth 

in their individual capacities), also rendering the case not moot................................29

IV. CONCLUSION...............................................................................................................30

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TABLE OF AUTHORITIES

Cases

A. Philip Randolph Inst. v. Husted, 838 F.3d 699, 713 (6th Cir. 2016)...............................19

Able v. United States, 155 F.3d 628 (2d Cir. 1998) ........................................................................7

Adkins v. United States, 68 F.3d 1317 (Fed. Cir. 1995)..................................................................7

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013).......................................................................14, 15

Am. Bar Ass’n v, FTC, 636 F.3d 641 (D.C. Cir. 2011)............................................................21, 22

Austin v. U.S. Navy Seals 1-26, 142 S. Ct. 1301 (2022)..................................................................7

Bennie v. Munn, 822 F.3d 392 (8th Cir. 2016)..............................................................................29

Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991)..............14

Bond v. United States, 47 Fed. Cl. 641 (Ct. Cl. 2000).....................................................................7

Bowman v. Schwarzenegger, 2009 U.S. Dist. LEXIS 24678 (ED Cal 2009)................................29

Castillo v. Cameron County, 238 F.3d 339 (5th Cir. 2001)..........................................................26

Ctr. for Individual Freedom v. Tennant, 706 F.3d 270, 293 (4th Cir. 2013)................................29

Chafin v. Chafin, 568 U. S. 165 (2013).........................................................................................11

Chen v. Allstate Ins. Co., 819 F.3d 1136 (9th Cir. 2016)..............................................................12

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982).............................................14, 18

Clark v. Tarrant Cnty., 798 F.2d 736 (5th Cir. 1986).....................................................................2

Cruz v. Hauck, 627 F.2d 710 (5th Cir. 1980)................................................................................25

Dailey v. Vought Aircraft Co., 141 F.3d 224 (5th Cir. 1998).......................................................26

Davis v. Ball Mem'l Hosp. Ass'n., Inc., 753 F.2d 1410 (7th Cir. 1985)........................................26

Dean Foods Co. v. Tracy, 990 F. Supp. 646 (W.D. Wis. 1997)...................................................29

Dehne v. United States, 970 F.2d 890 (Fed. Cir. 1992).................................................................28

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 3 of 39 PageID 2203
iii

DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008)..................................................................21

Doe v. Trump, 275 F. Supp.3d 167 (D.D.C. 2017)..........................................................................7

Doster v. Kendall, 48 F.4th 608 (6th Cir. 2022)............................................................................14

Doster v. Kendall, 54 F.4th 398 (6th Cir. 2022)................................................................14, 29, 30

Empower Texans, Inc. v. Geren, 977 F.3d 367 (5th Cir. 2020).....................................................23

Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007).......................22, 24

Fed'n of Advert. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924 (7th Cir. 2003)....9

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984)..............................................26

First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978)....................................................22, 23

Franks v. Bowman Transp. Co., 424 U.S. 747 (1976).................................................................25

Frontiero v. Richardson, 411 U.S. 677 (1973)..............................................................................7

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

528 U. S. 167 (2000)........................................................................................8, 14, 15, 19

Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66 (2013).........................................................8

Green v. County Sch. Bd. Of New Kent County, Va., 391 U.S. 430 (1968).................................14

Harris v. city of Houston, 151 F.3d 186 (5th Cir. 1998)........................................................12, 13

Haselrig v. United States, 53 Fed. Cl. 111 (Ct. Cl. 2002)..............................................................7

Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006 (5th Cir. 1998).................1

Honig v. Doe, 484 U.S. 305 (1988)...............................................................................................23

Hunter v. Underwood, 471 U.S. 222 (1985)...................................................................................9

J.R. v. Austin Indep. Sch. Dist., 574 F. Supp. 3d 428 (2021)..........................................24

J. T. v. D.C., 983 F.3d 516 (D.C. Cir. 2020).................................................................................26

King v. Dogan, 31 F.3d 344 (5th Cir. 1994)....................................................................................2

Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969 (2016)..............................................22

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 4 of 39 PageID 2204
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Kolstad v. ADA, 527 U.S. 526 (1999)......................................................................................27, 28

Marks v. United States, 430 U.S. 188 (1977)..................................................................................7

Meadows v. Odom, 198 F. App'x 348 (5th Cir. 2006)...................................................24

Miss. State Chapter, Operation Push, Inc. v. Mabus, 932 F.2d 400 (5th Cir. 1991).......................9

Murphy v. United States, 993 F.2d 871 (Fed. Cir. 1993).................................................................7

N.Y. State Rifle & Pistol Ass'n v. City of New York, 140 S. Ct. 1525 (2020)..........................11, 12

Norman-Bloodsaw v. Lawrence Berkely Lab., 135 F.3d 1260 (9th Cir 1998)........................17, 18

N.C. State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016)................................9

Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 

508 U.S. 656, 662 (1993)..................................................................................................13

Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007)............................19

Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985)..................................................................20

Opulent Life Church v. City of Holly Springs Miss., 697 F.3d 279 (5th Cir. 2012).....................13

Owens v. Brown, 455 F. Supp. 291 (D.D.C. 1978)........................................................................7

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

551 U. S. 701 (2007).............................................................................................18, 20, 21

Perez v. Abbott, 2017 U.S. Dist. LEXIS 35012, 2017 WL 962947 (W.D. Tex. Mar. 10, 2017) ...9

Perez v. Texas, 970 F. Supp. 2d 593 (W.D. Tex. 2013)..................................................................9

Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997)..............................................................................7

Ramming v. United States, 281 F.3d 158 (5th Cir. 2001)...........................................................1, 2

Ramsek v. Beshear, 989 F. 3d 494 (6th Cir. 2021)........................................................................29

Roe v. Wade, 93 S. Ct. 705 (1973).................................................................................................23

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020).........................................23

Sacks v. Office of Foreign Assets Control, 466 F.3d 764 (9th Cir. 2006).....................................29

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Scarseth v. United States, 46 Fed. Cl. 406 (Ct. Cl. 2000)................................................................7

Schlesinger v. Ballard, 419 U.S. 498 (1975)...................................................................................7

Sosna v. Iowa, 419 U.S. 393 (1975)..............................................................................................25

Southern Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911)............................................................23

Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019)............................................19, 20, 21

T.M. ex rel. H.C. v. DeWine, 49 F.4th 1082 (6th Cir. 2022).........................................................29

Tandon v. Newsom, 141 S. Ct. 1294 (2021)..................................................................................20

Tanzin v. Tanvir, 141 S. Ct. 486 (2020)............................................................................27, 28, 29

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)......................14, 18

Tucker v. Gaddis, 40 F.4th 289 (5th Cir. 2022)......................................................................15, 21

Turner v. Rogers, 564 U.S. 431 (2011).........................................................................................22

Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017).......................................25

United States v. Concentrated Phosphate Export Assn., 393 U.S. 199 (1968)........................9

United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018)...............................................18

United States v. W. T. Grant Co., 345 U.S. 629 (1953).................................................................22

United States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980).................................................25

Veasey v. Abbott, 248 F. Supp. 3d 833 (SDTX 2017).................................................................8, 9

Warnock v. Pecos Cnty., 88 F.3d 341 (5th Cir. 1996)...................................................................28

West v. Gibson, 527 U.S. 212 (1999).......................................................................................27, 28

West Virginia v. EPA, 142 S. Ct. 2587 (2022).............................................................................8, 9

Wooten v. Housing Authority of Dallas, 723 F.2d 390 (5th Cir. 1983).........................................12

Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981)....................................25, 26

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 6 of 39 PageID 2206
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Statutes

10 U.S.C. § 843 ........................................................................................................................5, 29

10 U.S.C. § 890 ........................................................................................................................5, 29

10 U.S.C. § 892 ........................................................................................................................5, 30

42 U.S.C. 2000bb-1(c).............................................................................................................27, 28

Rules

FRCP 12(b)(1).................................................................................................................................1

Other Sources

Four weeks later, military still waiting on post-vaccine guidance (militarytimes.com) Available 

at: https://www.militarytimes.com/news/your-military/2023/02/09/four-weeks-later-militarystill-waiting-on-post-vaccine-guidance/ .....................................................................2

Pentagon: No Back Pay to Troops Discharged for Refusing COVID-19 Vaccine | National News 

| U.S. News (usnews.com) Available at https://www.usnews.com/news/nationalnews/articles/2023-01-17/pentagon-no-back-pay-to-troops-discharged-for-refusing-covid-19-

vaccine .........................................................................................................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/pentagon-unclearhow-military-would-handle-end-of-mandatory-covid-19-vaccines ................................3, 13, 20

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 ............................................................................................................................4, 11, 16

Argument, Doster v. Kendall, 

https://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/10-19-2022%20-

%20Wednesday/22-

3497%20Hunter%20Doster%20v%20Frank%20Kendall%20et%20al.mp3&name=22-

3497%20Hunter%20Doster%20v%20Frank%20Kendall%20et%20al .........................................4

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

11-115724-610 ..........................................................................................................................7, 29

https://www.ca5.uscourts.gov/OralArgRecordings/22/22-10077_2-6-2023.mp3 ....................8

https://www.congress.gov/117/bills/hr7776/BILLS-117hr7776enr.pdf .........................10, 16

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 7 of 39 PageID 2207
vii

CHARLES ALAN WRIGHT ET AL., 13A FEDERAL PRACTICE AND PROCEDURE § 

3533.9, at 401 (2d ed. 1984).........................................................................................................26

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 8 of 39 PageID 2208
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INTRODUCTION

The plain language of Defendant Secretary of Defense’s January 10, 2023 Memorandum 

repealing the August 24, 2021 COVID-19 vaccination mandate confirms that the rescission was 

in name only. Within the very document that cancels the DoD mandate, a de facto vaccination 

mandate remains, leaving the door wide open for commanders to continue considering 

vaccination status “in making deployment, assignment, and other operational decisions,” 

Without the continued protection of the injunction, the class members’ religious liberty rights 

continue to be violated, and many class members will eventually be separated from the Army 

because they will be unable to meet milestones or obtain required training. Thus, the coercion 

and discrimination that the Plaintiffs have suffered since 2021 has not ended. In fact, 

Defendants motion to dismiss was the perfect opportunity to provided assurance to this Court 

that all harm has been undone and that no further harm will occur. They have offered no proof 

of such and based on past experience in this case, without an enforceable order, the Defendants 

will do as they want.

Defendants failed to meet their “formidable” burden for demonstrating mootness, 

particularly where, as here, several exceptions apply. For these reasons, Defendants’ Motion 

should be denied.

I. Standard of Review

Under Rule 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction 

when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders 

Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). In assessing 

jurisdiction, 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, 

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 9 of 39 PageID 2209
2

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. 

II. Facts – as alleged in the Verified Amended Complaint and established via other 

evidence

As the Verified Amended Complaint makes clear, each of the Plaintiffs (including the new 

Plaintiff) suffer ongoing harm, all of which requires a remedy, and all of which continues to this 

very day. [Am. Compl., DE#92]. That verified Amended Complaint is competent evidence. King 

v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). For instance, each of the Cadet Plaintiffs (Bufkin, 

Conklin, Mell, Morrison, and Saballa) received General Officer Memorandum of Reprimands

(“GOMOR”), and each of those adverse actions are, as of today, still of record. [Id. at ¶¶ 14, 15, 

18, 19, 20, 61]. In other words, their harm continues, as do their active controversies with 

Defendants. Each made repeated inquiries to their chain of command, and undersigned counsel

made inquiries to the U.S. Department of Justice about the status of these reprimands, and each 

has not been informed whether, and on what timeline, any corrective or remedial action might 

occur, and that uncertainty continues as of the filing of the Amended Complaint. Id. 

Recently, media and legislative representatives asked the military similar questions and 

received the same noncommittal responses.1 Gil Cisneros, Department of Defense Personnel 

Chief, offered the following noncommittal response to the Military Times on January 11, 2023: 

1 Four weeks later, military still waiting on post-vaccine guidance (militarytimes.com) Available 

at: https://www.militarytimes.com/news/your-military/2023/02/09/four-weeks-later-militarystill-waiting-on-post-vaccine-guidance/

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 10 of 39 PageID 2210
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“There are still things that we need to kind of tie up.” Id. In fact, the only thing the military has 

been clear about is that they have no intention of awarding backpay to any servicemembers who

were discharged or otherwise lost pay due to refusing the COVID-19 vaccine. On January 17, 

2023, Brig. Gen. Pat Ryder, Defense Department spokesman, stated, “Right now, we are not 

pursuing, as a matter of policy, back pay for those who refused the vaccine... [because] at the time 

those orders were refused, it was a lawful order.”2

Even worse, the Executive Branch believes that Congress’s direction to rescind the 

mandate was a “mistake,”3and nothing in the NDAA prevents Defendants from instituting a new 

mandate. Defendants apparently have no desire to ensure Plaintiffs’ religious liberties are 

protected. And if the class members had any hope of returning to the operational fold with the 

rescission of the formal mandate, such hopes were dashed when 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.”4

Nor does the most recent implementation directives from Army Headquarters indicate the 

rescission that Defendants claim. (Doc. 93, at PageID#2184-2196). It continues restrictions on 

duty station changes for soldiers (id., at ¶ 3D.15.B.3.K, PageID#2189), and it continues in force 

several annexes that reflect the continuation of policies that reflect administrative actions for 

2 Pentagon: No Back Pay to Troops Discharged for Refusing COVID-19 Vaccine | National 

News | U.S. News (usnews.com) Available at https://www.usnews.com/news/nationalnews/articles/2023-01-17/pentagon-no-back-pay-to-troops-discharged-for-refusing-covid-19-

vaccine (last accessed 2/15/2023)

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/pentagon-unclearhow-military-would-handle-end-of-mandatory-covid-19-vaccines (last accessed 2/15/2023). 

4 Mongilio, supra n.3. 

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 11 of 39 PageID 2211
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soldiers who did not follow vaccination directives. (Id. at Annexes XX, YY, ZZ, AAA, BBB, 

MMMM, NNNN, SSSS, PageID#2193, 2195). While it appears that the Army has halted new 

adverse actions, they have done nothing with those already in place.

Finally, the new DoD and Army policies made the accommodation process worse: DoD 

and the Army state their intention to continue using vaccination status to make a wide range of 

decisions involving the class members, yet now will no longer consider requests for religious 

accommodation.5 Based on Defendants’ previous conduct and their admissions in a similar case 

involving the Air Force in the Sixth Circuit,6it is likely they will use these broad categories to 

discriminate against and treat Plaintiffs as second-class citizens who are prevented from advancing 

in their military careers.

Speaking of orders, all Plaintiffs in this action received orders to vaccinate. See ECF No. 

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, each Plaintiff (except for Luke Chrisman) remains subject to criminal 

prosecution at any time for violations of either Article 90 or Article 92 of the Uniform Code of 

5 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. (last accessed 2/15/2023).

6 During oral argument in Doster, the Court asked, “Is it the Executive Branch’s position that you 

don’t have to worry about RFRA until somebody sues?” Defendant’s counsel responded, “More 

or less, yes. RFRA itself is not a record review statute and does not require the government to 

take any particular process.” Oral Argument at 18:38-18:55, Doster v. Kendall, No. 22-3497 (6th 

Cir. Jul. 25, 2022). Available at: 

https://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/10-19-2022%20-

%20Wednesday/22-

3497%20Hunter%20Doster%20v%20Frank%20Kendall%20et%20al.mp3&name=22-

3497%20Hunter%20Doster%20v%20Frank%20Kendall%20et%20al (last accessed 2/15/2023).

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 12 of 39 PageID 2212
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Military Justice for the next five-years if the Defendants so choose. 10 U.S.C. § 843 (five-year

statute of limitations); 10 U.S.C. § 890 (Article 90); 10 U.S.C. § 892 (Article 92). Each faces the 

prospect and potential punishment of up to five years in a military prison for these violations.7

Perhaps most indicative of Defendants’ intent to continue their discrimination against those 

who sought religious accommodation was a text communication between Cadet Morrison and his 

commander, Major Hagen, on February 7, 2023, where Major Hagen stated:

...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., DE#92 at ¶19; Appendix, DE#93, Exhibit 3].

“While the Army has indicated that at some point, perhaps a year from now, it will take 

action to remove such adverse action, the timely failure to do so causes ongoing career harm, and, 

for these cadets, can be used as a basis to deny them the ability to commission.” [Am. Compl., 

DE#92 at ¶61]. For Cadet Mell, he has received no 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].

Some Plaintiffs were denied the ability to attend courses required for promotion, such as 

Staff Sergeants Schelske, Costroff, and Testa, all of whom missed the Senior Leaders Course due 

to their vaccination status, or Lt. Bakich, who was not permitted to attend the Maneuver Captain’s 

Career Course until now, due to his vaccination status, each of them missing the opportunity to 

promote, and seek equitable relief in the form of corrective action. [Id. at ¶¶ 13, 16, 21, 22, 20, 

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

01-11-115724-610 (last accessed 2/15/2023) at Section IV-25 and IV-28 (pages 332 and 335).

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 13 of 39 PageID 2213
6

60]. All have inquired about corrective action, if any, and each has not had any indication they 

will receive any such corrective action by the Army, or if so, on what timeline. Id.

Then there is SSG Galloway, who has been pending both a permanent change of station

(i.e. a move of duty station) back to the United States, as well as re-enlistment, which has also 

been delayed indefinitely due to his vaccination status. [Id. at ¶¶ 17, 62]. He likewise undertook 

inquiries about whether he would receive corrective action, and on what timeline, but has not had 

any indication he will receive any such corrective action by the Army, or if so, on what timeline. 

Id.

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

Chrisman. He was punitively discharged – namely he was given a General Discharge (which is 

indisputably adverse), along with adverse separation reasons and codes, due to his vaccination 

status, despite pursuing a religious accommodation, which was denied by Defendants’ 

discriminatory process. [Id. at ¶¶ 23, 59]. His harm continues to date, which includes 

uncomfortable inquiries by potential employers into his discharge reasons, and, per the Secretary 

of Defense’s own directives, there is no apparent remedying of his harm. [Id. at ¶¶ 4, 23, 59].

Despite this Court’s injunctive relief, the continuing discriminatory actions will achieve 

the intended result of these servicemembers being involuntarily separated from service. Simply 

because the Army has been foreclosed from overtly punishing and formally issuing adverse 

administrative and discharge paperwork to the Plaintiffs for seeking religious accommodations

from the vaccine mandate does not account for the “deployment, assignment, and other operational 

decisions” that have been and will continue to be intentionally made to irreversibly damage the 

Plaintiffs’ careers as reprisal for their vaccination status. Defendants have taken an extraordinarily 

broad view of what constitutes an “operational decision,” and as stated above, there is sufficient 

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 14 of 39 PageID 2214
7

evidence demonstrating that they will seek to impose that broad view to continue punishing

servicemembers for their religious beliefs. See Austin v. U.S. Navy Seals 1-26, 142 S. Ct. 1301, 

1305–06 (2022) (Alito, J., dissenting) (“[T]he terms seemingly allow the Navy to do just about 

anything it wants short of punishing [Plaintiffs] and drumming them out of service.”).

Defendants may 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). We do not 

read Austin as broadly as the Defendants do, and believe it limited to preliminary injunctive 

relief, versus what the Court can direct in final relief. That stems from the lack of any discussion 

or rationale in the Austin decision, requiring under Marks v. United States, 430 U.S. 188 (1977),

a narrow construction and holding. There is a long history of courts adjudicating claims in the 

assignment, operational, and deployment arena, so long as there is a 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 yet 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).

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8

For these and other reasons, Plaintiffs maintain a cognizable interest in pursuing their 

claims in this Court to protect themselves from suffering ongoing harm based on their religious 

objections to the COVID-19 vaccine. Neither the Secretary of Defense’s Memorandum nor the 

Army’s implementation directives to date take any action to correct the detrimental career impacts 

that have been and continue to be suffered by Plaintiffs. In fact, as Judge Duncan implied during 

the February 6, 2023, oral argument at the Fifth Circuit in Seals, in which the Court thoroughly 

addressed the issue of mootness, the sham process is even more damaging now that the Army’s 

multi-step process is a zero-step process8 because “the Secretaries of the Military Departments will 

further cease any ongoing reviews of current Service member religious . . . accommodation 

requests solely for exemption from the COVID-19 vaccine or appeals of denials of such requests.”

Defendants now claim, without any legal authority, that the half measures promised (but 

inexplicably not yet taken to date), somehow render the case moot. As demonstrated below, they 

are wrong.

III. ARGUMENT

A. Defendants have not met their formidable burden of establishing mootness

 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, 189-192 (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 (SDTX 2017). See, also, West Virginia v. EPA, 142 

8 Available at: https://www.ca5.uscourts.gov/OralArgRecordings/22/22-10077_2-6-2023.mp3

(last accessed 2/15/2023).

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9

S. Ct. 2587, 2607 (2022) (“the 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 Friends of the Earth, Inc., 528 U.S. 167, 189 (quoting United States v. Concentrated 

Phosphate Export Assn., 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968)). 

“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) (events over 80 years to change the terms of the law do 

not eliminate its original discriminatory intent); Miss. State Chapter, Operation Push, Inc. v. 

Mabus, 932 F.2d 400, 408-09 (5th Cir. 1991); N. C. State Conference of NAACP v. McCrory, 831 

F.3d 204, 240 (4th Cir. 2016) (amendment does not eliminate all lingering effects of law that was 

discriminatory when passed); Perez v. Texas, 970 F. Supp. 2d 593, 603 (W.D. Tex. 2013) (claims 

of intentional discrimination in connection with legislation are not mooted by subsequent 

legislation so long as requested relief is available for purposeful discrimination); Perez v. Abbott, 

2017 U.S. Dist. LEXIS 35012, 2017 WL 962947, at *3 (W.D. Tex. Mar. 10, 2017) (finding 

intentional discrimination claims not moot so long as relief was available to remedy the associated 

harm, even if remedy for discriminatory effects claim was mooted by later legislation).

The discussion in Veasey is instructive here. The Veasey court explained that it is 

sometimes the case that “complete repeal of a challenged law renders a case moot unless there is 

evidence creating a reasonable expectation that the City will reenact the ordinance or one 

substantially similar." 248 F. Supp. 3d 833, 835, citing Fed'n of Advert. Indus. Representatives, 

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 17 of 39 PageID 2217
10

Inc. v. City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003). However, that is not the rule for all 

cases. The Veasey Court also went on to explain that “[t]hat rule fit the circumstances of that case 

because the only relief sought was an injunction against enforcing the law.” Id. “If the law is 

repealed, there is nothing left to enforce.” Id. “Here, however, Plaintiffs are 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 prevents 

application of this 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.

To understand how fatally flawed Defendants’ argument is, one must begin by looking at 

the plain language of the relevant portion of the NDAA (§ 525, pages 177-178):

Not later than 30 days after the date of the enactment of this Act, the Secretary of 

Defense shall rescind the mandate that members of the Armed Forces be vaccinated 

against COVID-19 pursuant to the memorandum dated August 24, 2021, regarding

“Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense 

Service Members.”9

The NDAA only requires the rescission of the policy. It does not prevent Defendants from 

re-imposing a vaccine mandate (even an identical one) at a later date, it does not require halting 

separations for those who disobeyed orders to vaccinate (particularly where Defendants continue 

to insist those orders were lawful), it does not require the removal of adverse actions taken against 

such soldiers, it does not bar criminal prosecutions for those who previously violated the prior 

mandate, and it does not require rectifying any other harms.

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

accessed 2/10/2023).

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The Secretary’s January, 2023 Memorandum contains 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.10 As to Defendants’ worn-out mantra in this 

and other cases about the Department of Defense’s purported compelling interests, 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. These statements are a directive to lower-level commanders 

that they 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.” 

While separations solely for refusing to vaccinate will apparently no longer occur, 

separations for failing to obey an order to vaccinate can occur in the future (“separated solely on 

the basis...”). Other discriminatory policies based on vaccination status will continue in light of 

the Secretary’s Memorandum (“Other standing Departmental policies, procedures, and processes 

regarding immunizations remain in effect...”), and discharged soldiers will not automatically have 

their discharges upgraded, but rather are confined to an arbitrary process that is far from assured 

(“Former Service members may petition...”). 10 U.S.C. § 1552. Without question, the Secretary 

of Defense retains the authority to reinstate a COVID-19 vaccine requirement at any moment, and 

he has not given any assurances that he will not do so.

At bottom, then, and as the Supreme Court observed just a few years ago, even if “[i]t is 

certainly true that the [NDAA and Secretary’s Memorandum] ... give petitioners most of what 

10 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

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they sought, ... that is not the test for mootness.” N.Y. State Rifle & Pistol Ass'n v. City of New 

York, 140 S. Ct. 1525, 1528 (2020). “Instead, ‘a case ‘becomes moot only when it is impossible 

for a court to grant any effectual relief whatever to the prevailing party.’”” Id., citing 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.

At present, it remains a fact that all Plaintiffs who have General Officer Memorandum of 

Reprimands, flags, and other forms of adverse action still have not had corrective action taken. 

[Am. Compl., DE#92, at ¶¶ 13 - 23]. There have been no concrete and irrevocable (or for that 

matter any) directives or actions that would bar criminal prosecutions for failing to adhere to prior 

orders to vaccinate. It has been over a month since the Secretary rescinded the mandate and still 

there is no date on when these adverse actions will be removed, if ever. Despite repeated requests, 

Defendants refuse to tell anyone when those steps might occur. Id. An ambiguously worded 

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

establish mootness, and to assert otherwise is to gaslight the Plaintiffs and this Court. Chen v. 

Allstate Ins. Co., 819 F.3d 1136, 1138 (9th Cir. 2016) (“a claim becomes moot when a plaintiff 

actually receives complete relief on that claim, not merely when that relief is offered or tendered”); 

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). Plainly, then, the case is not moot, as 

Defendants 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.

Defendants cite Harris v. city of Houston, 151 F.3d 186 (5th Cir. 1998), a case where the

plaintiffs only challenged an annexation after the election occurred. Id. Because the event at

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13

issue had come and completely gone, with no prospect for further relief, and Plaintiffs had no

further relief that they sought, the case was moot. Id. Harris is not this case.

Precedent from the Supreme Court and the Fifth Circuit hold that a case is not mooted if 

the challenged conduct continues after the repeal of an unconstitutional policy. See Ne. Fla. 

Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 662 

(1993) (“There is no mere risk that [Defendant] will repeat its allegedly wrongful conduct; it has 

already done so.”); Opulent Life Church v. City of Holly Springs Miss., 697 F.3d 279, 286 (5th Cir. 

2012) (holding a case was not moot where a defendant “doubled down” on its challenged action 

after repealing a policy). That is exactly what is happening here. Defendants have doubled down 

on their wrongful conduct by repealing the vaccine mandate in name only, denying Plaintiffs any 

avenue to seek a religious accommodation based on vaccination status, and continuing to take 

adverse actions against Plaintiffs that will ultimately accomplish the same result as the vaccine 

mandate: forcing all servicemembers with religious objections to the COVID-19 vaccine out of 

the Army. To rectify the previous harms and to prevent ongoing violations of RFRA and the First 

Amendment, Plaintiffs must obtain permanent relief from this Court.

Further, decisions regarding the operational status of service members are causing current 

harm in the form of lost promotions, threat of recoupment of expenses and bonuses, lack of training 

opportunity, and most importantly, constant coercion to become vaccinated to avoid a stalled 

career. Any controversy regarding assignment, deployment, and operational decisions is far from 

speculative, as we presently know DoD Officials envision “two classes” within the military and 

has merely only “suspend[ed] any new adverse actions associated with refusing the COVID-19 

vaccine.”11

11 See Mongilio, supra n.3.

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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. 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 the 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). Those vestiges include a wide variety of harms, including any ongoing 

discrimination in operational, assignment, and deployment decisions, lost promotions, lost 

schooling, upgrading of adverse discharges, and other full scale “root and branch” relief.

Defendants’ Motion doesn’t even pretend to claim that the harm they caused has been 

undone. Rather, the record evidence is unrebutted that Plaintiffs have not received “root and 

branch” relief, to include adverse record corrective action, adverse discharge relief, and relief for

a variety of other harms. As such, the case is not moot.

B. Defendants’ Motion should be denied because the voluntary cessation 

exception to mootness applies

The already high burden of establishing mootness is made even higher when it comes to 

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

does not suffice to moot a case.” Friends of the Earth, Inc., 528 U.S. 167, 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 Castle, Inc., 455 U.S. 283, 289 (1982).

As the United States Supreme Court has observed in Already, LLC v. Nike, Inc., 

568 U.S. 85, 91 (2013):

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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.

Id. (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.” Friends of the Earth, Inc., 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. Here, not only do Defendants not promise to “never 

do it again,” but in light of the language in the Secretary’s Memorandum, this Court has plenty of 

reason to doubt the Defendants’ “credibility on this score” if they did make such an empty promise. 

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 23 of 39 PageID 2223
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Defendants suggest that this is not a voluntary cessation case because, they argue, Congress 

in the NDAA required the rescission of the Vaccine Mandate. To understand how fatally flawed 

that argument is, one must again look to the plain language of the NDAA (§ 525, pages 177-178):

Not later than 30 days after the date of the enactment of this Act, the 

Secretary of Defense shall rescind the mandate that members of the Armed 

Forces be vaccinated against COVID-19 pursuant to the memorandum 

dated August 24, 2021, regarding “Mandatory Coronavirus Disease 2019 

Vaccination of Department of Defense Service Members.”12

Once again, the NDAA only required the rescission of the policy. 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. Rather, the Secretary of Defense made a voluntary decision to do certain of those 

things himself. Any argument that this was not voluntary (and perhaps mere litigation posturing)

is a gross mischaracterization of fact.

Next, we turn to the Secretary of Defense’s January, 2023 Memorandum.13 That 

Memorandum contains explicit statements clearly indicating that the Secretary of Defense believes 

that everything the Defendants did was lawful, foreshadowing a return to past practices. The 

Secretary reiterated the Department of Defense’s purported compelling interests in vaccination:

“All commanders have the responsibility and authority to preserve the Department's compelling 

interests in mission accomplishment. This responsibility and authority includes the ability to 

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

a resilient Joint Force.” Id. These statements, about compelling interests being furthered by 

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

accessed 2/10/2023).

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. (last accessed 2/15/2023).

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 24 of 39 PageID 2224
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vaccination, effectively acts as a directive to lower-level commanders that they have the freedom 

to impose vaccination requirements in the future, particularly in light of the later statement that 

“[o]ther standing Departmental policies, procedures, and processes regarding immunizations 

remain in effect.” 

Significant to the voluntary cessation issue, the Secretary voluntarily directed certain

(carefully crafted) actions that were not required by the NDAA:

No individuals currently serving in the Armed Forces shall be separated

solely on the basis of their refusal to receive the COVID-19 vaccination if they 

sought an accommodation on religious, administrative, or medical grounds. The 

Military Departments will update the records of such individuals to remove 

any adverse actions solely associated with denials of such requests, including 

letters of reprimand. The Secretaries of the Military Departments will further 

cease any ongoing reviews of current Service member religious, administrative, or 

medical accommodation requests solely for exemption from the COVID-19 

vaccine or appeals of denials of such requests. Id.

Other standing Departmental policies, procedures, and processes 

regarding immunizations remain in effect. These include the ability of 

commanders to consider, as appropriate, the individual immunization status of 

personnel in making deployment, assignment, and other operational decisions, 

including when vaccination is required for travel to, or entry into, a foreign nation. 

Id.

For Service members administratively discharged on the sole basis that the 

Service member failed to obey a lawful order to receive a vaccine for COVID-19, 

the Department is precluded by law from awarding any characterization less than a 

general (under honorable conditions) discharge. Former Service members may

petition their Military Department's Discharge Review Boards and Boards for 

Correction of Military or Naval Records to individually request a correction to their 

personnel records, including records regarding the characterization of their 

discharge.

In light of the Defendants’ practices to date, and the carefully crafted language in the 

Secretary of Defense’s Memorandum, it is “absolutely clear” that Defendants will continue their 

wrongful behavior. The Secretary’s mere temporary lifting of his edict does not come close to 

meeting the Defendants’ “formidable” burden. The Defendants have “neither asserted nor 

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18

demonstrated that [they] will never resume the complained of conduct” and we don’t 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”).

It is Defendants’ burden to prove that the proffered “subsequent events make it absolutely 

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

Lutheran Church of Columbia, Inc., 137 S.Ct. 2012, 2019 n.1. That formidable burden has not 

been met here and, in fact, the Defendants “nowhere suggest that if this litigation is resolved in 

their favor they will not” reimpose the vaccine mandate. Indeed, Defendants “vigorously defend” 

the legality of such an approach. 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, 288-289.

Next consider the Amended Complaint. The Army recently issued policy demonstrating 

its commitment towards continuing discrimination based on vaccination status. [Am. Compl., 

DE# 92, at ¶42; Appendix, DE# 93 at Exhibit 5]. Also 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., DE#_92_, at ¶19; Appendix, DE#93 at 

Exhibit 3].

This statement is a textbook example of why Government defendants have a formidable 

burden in voluntary cessation cases. This statement is also fatal to any assertion by Defendants 

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

to recur.” Parents Involved in Community Schools, 551 U. S. 701, 719. In fact, it appears to be 

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19

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," 

Friends of the Earth, 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, 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.

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) ("[T]he circumstances of the Secretary's issuance 

of the new form do not inspire confidence in his assurances regarding the likelihood of 

recurrence—he issued that new form on the same day as the parties' final merits briefs were due 

before the district court, attaching the form as an exhibit to his brief and only then presenting his 

mootness argument. This fact makes the Secretary's voluntary cessation appear less genuine."); 

Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 342-43 (6th Cir. 2007) ("In this case, 

that burden is increased by the fact that the voluntary cessation only appears to have occurred in 

response to the present litigation, which shows a greater likelihood that it could be resumed.").

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Further, and most important to the mootness inquiry, is the fact that Defendants "vigorously 

defend[] the constitutionality of [their] . . . program". Schlissel, 939 F.3d 756 at 770, citing 

Parents Involved in Cmty. Sch., 551 U.S. 701, 719. Simply put, nothing the Secretary has said or 

done shows that he understands that his policies resulted in violations of RFRA and the First 

Amendment. In fact, the opposite is true as the Secretary continues to publicly defend his 

decisions and policies. A case is not moot where, as here, the Secretary “did not voluntarily cease 

the challenged activity because he felt [it] was improper,” and “has at all times continued to argue 

vigorously that his actions were lawful.” Olagues v. Russoniello, 770 F.2d 791, 795 (9th Cir. 

1985).

Defendants cannot reasonably deny that they voluntarily ceased at least some of the 

challenged conduct, thus rendering the only remaining issue is whether they have met the 

formidable burden of showing that the complained of conduct cannot recur. A simple review of 

Plaintiffs’ evidence should allow this Court to quickly determine that Defendants do not satisfy 

this burden. Not only do Defendants retain the authority to reinstitute a new vaccine mandate at 

any time, but, as explained above, the very rescission document demonstrating de minimis

compliance with the FY 2023 NDAA also institutes a de facto vaccine mandate–with no formal 

repeal, recission, or cancellation of two enjoined policies. 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 their mandate. See Mongilio, supra n.3.

The fact that Defendants are government actors does not change the doctrine’s application. 

When the government changes a law or policy in response to litigation, as here, the voluntary 

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21

cessation doctrine prevents dismissal of a plaintiff’s claim based on mootness. See Parents 

Involved in Cmty. Schs., 551 U.S. 701, 719 (finding voluntary cessation doctrine applied because 

government actors vigorously defended the constitutionality of its race-based program, and did not 

deny that if the litigation was resolved in its favor it would resume using race to assign students); 

Tucker, 40 F.4th 289, 293 (holding a prison’s changed policy did not moot a case where the prison 

gave no assurances that it would not repeat the challenged conduct); DeJohn v. Temple Univ., 537 

F.3d 301, 309-10 (3d Cir. 2008) (holding public university’s policy change during litigation and 

continued defense of that policy on appeal did not moot case).

Indeed, even if this Court applies the more relaxed standard sometimes used when the 

defendant is a government actor, the result is the same. Courts consider three factors when applying 

its 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. These factors are easily satisfied here. First, Defendants have made no 

representations that they will not continue to discriminate against Plaintiffs based on their religious 

beliefs. In fact, their actions and statements demonstrate an intent to do just the opposite—

specifically treating unvaccinated religious soldiers as second-class citizens. Second, Defendants 

continue to defend the repealed policy and have publicly stated that the vaccine mandate was a 

lawful order at the time it was issued. Even under a more relaxed standard, Plaintiffs’ claims are 

not moot.

Defendants rely upon Am. Bar Ass’n v, FTC, 636 F.3d 641, 648 (D.C. Cir. 2011), however 

that case is distinguishable because the intervening legislation in ABA completely eradicated, (and 

prevented re-enactment of) the offending policy, and there was not, as there is here, (i) the ability 

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22

to re-enact the policy; (ii) other similar discriminatory policies that the Defendants are presently 

pursuing; (iii) ongoing harm from the policy that have not been eradicated; and (iv) no evidence, 

as there is here, of a litigation motive.

Finally, 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. That is for a reason: it is to permit the correction of past 

harms. Here, there are plenty of not only past, but present and ongoing harms.

C. Defendants’ Motion should be denied because the capable of repetition, yet 

evading review exception to mootness applies

Defendants not only fail to meet their formidable burden of proving that the voluntary 

cessation doctrine does not apply, but they also fail to prove that this case is not one that is capable 

of repetition, yet evading review. “The exception 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). Both requirements 

are present here. 

First, given the rapidly changing COVID-19 landscape and the changes in policy

throughout the Department of Defense (which seem to occur daily) there is no question that the 

duration of the vaccine mandate and the policies related to it will perpetually be “too short to be 

fully litigated prior to cessation or expiration.” See Kingdomware Tech., Inc. v. United States, 136 

S. Ct. 1969, 1976 (2016) (two years is too short); Turner v. Rogers, 564 U.S. 431, 440 (2011) (12 

months is too short); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (18 months is 

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too short); Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (two years is too short); 

Roe v. Wade, 93 S. Ct. 705 (1973) (266 days is too short). Under the first element, a case evades 

review if its duration is too short to receive “complete judicial review,” including review by the 

Supreme Court. First Nat’l Bank of Bos., 435 U.S. 765, 774; see also Empower Texans, Inc. v. 

Geren, 977 F.3d 367, 370 (5th Cir. 2020).

When analyzing the second element, courts are concerned with whether the conduct was 

“capable of repetition and not . . . whether the claimant had demonstrated that a reoccurrence of 

the dispute was more probable than not.” Honig v. Doe, 484 U.S. 305, 318 n.6 (1988). Plaintiffs 

need not demonstrate with “mathematical precision” that they will be subject to the same illegal 

conduct; rather, they just need to show “a reasonable expectation” that the challenged action will 

reoccur. Id. In Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), the Supreme 

Court held that a church’s First Amendment challenge to New York’s COVID-19 lockdown orders 

was not moot because it was capable of repetition, yet evading review. The church “remain[ed] 

under a constant threat” that the government would reinstitute a lockdown in its area. Id. at 68. 

Because the challenged action was too short in duration to be fully litigated prior to cessation, and 

there was a reasonable expectation that the church would be subject to the same action in the future, 

the case was not moot. Id. Plaintiffs have a reasonable expectation that the challenged action—

application of a vaccine mandate that violated their religious beliefs—will recur. The FY23 NDAA 

forced Defendants to rescind the 2021 mandate to be vaccinated against COVID-19. Yet, as 

explained above, Defendants implemented a de facto mandate in the very document that repealed 

the original mandate in name only. Defendants remain free to make decisions about soldiers that 

will unlawfully harm their careers based on their vaccination status while providing no assurances 

that they will not continue to discriminate against Plaintiffs in violation of RFRA and the First 

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Amendment because they sought religious accommodations from the mandate and remain 

unvaccinated against COVID-19. Defendants also retain the power to institute an identical and 

more widespread vaccine mandate at any time, and they have already stated they have a compelling 

interest in doing so.

Second, Plaintiffs reasonably fear that the challenged requirements will be reinstituted, 

and Defendants’ submissions validate those fears.

14

 And as is requested in this case, “[c]laims for 

declaratory relief can preclude mootness if it is shown that there is a ‘demonstrated probability’

that the harm the declaration addresses could occur again.” Meadows v. Odom, 198 F. App'x 348, 

351 (5th Cir. 2006); J.R. v. Austin Indep. Sch. Dist., 574 F. Supp. 3d 428, 438 (2021). As of the 

date of the initial complaint, the Army received over 10,000 requests for religious accommodation 

and only approved 32, while granting thousands of secular exemption requests to the same 

mandate. [Am. Compl., DE# 92, ¶ 44]. The actions of Defendants were not unintentional and 

were not isolated. In fact, they were calculated. And, in light of Defendants continued insistence 

they did nothing wrong, particularly where this Court found Defendants violated RFRA and the 

First Amendment, the mere temporary recission of the vaccine mandate means little to nothing. 

Given this evidence, there is “. . . a [more than] reasonable expectation that the [Plaintiffs] will be 

subject to the same action again.” Fed. Election Comm'n, at 462. Plaintiff’s claims are not moot.

D. Defendants’ Motion should be denied because the pickoff/class-action

exception applies

There is a pending (and fully briefed) motion for class certification pending with this Court. 

[DE#48, DE#49]. There is also an updated Notice requesting the addition of the additional named 

14 “Other standing Departmental policies, procedures, and processes regarding immunizations 

remain in effect. These include the ability of commanders to consider, as appropriate, the 

individual immunization status of personnel in making deployment, assignment, and other 

operational decisions, including when vaccination is required for travel to, or entry into, a 

foreign nation.” Secretary of Defense’s January 10, 2023 Memorandum. 

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Plaintiff/representative, which has also been filed. [Am. Compl., DE# 95]. It is inappropriate to 

adjudicate a motion to dismiss for mootness, without taking up and deciding the motion for class 

certification. Cruz v. Hauck, 627 F.2d 710 (5th Cir. 1980). “The plaintiffs initially contend that 

it was improper to consider the alleged mootness of the claims of the class in determining whether 

to certify the action as a class action.” Id. at 715. “We agree.” Id. “It is not appropriate to decide 

a case on its merits before determining whether it can be certified as a class action.” Id. 

Moreover, mootness of a class representative's individual claim post-certification does not 

moot the entire class action. Sosna v. Iowa, 419 U.S. 393, 399 (1975) ("When the [d]istrict [c]ourt

certified the propriety of the class action, the class of unnamed persons described in the 

certification acquired a legal status separate from the interest asserted by [plaintiff]."); see also 

Franks v. Bowman Transp. Co., 424 U.S. 747, 755-57, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976) 

(extending Sosna by holding that a certified class action will not be rendered moot by the mootness 

of the class representative's individual claims in instances in which the class claims are not 

inherently transitory). In such cases, the Article III "controversy may exist . . . between a named 

defendant and a member of the class represented by the named plaintiff, even though the claim of 

the named plaintiff has become moot." Id. at 402. Moreover, so long as one Plaintiff has nonmoot claims, the case may not be dismissed. United States Parole Comm'n v. Geraghty, 445 U.S. 

388, 100 S. Ct. 1202 (1980); Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1647 (2017)

(one plaintiff is sufficient).

The Fifth Circuit has explained that "a suit brought as a class action must as a general rule 

be dismissed for mootness when the personal claims of the named plaintiffs are satisfied and no 

class has properly been certified." Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1045 (5th 

Cir. 1981). However, in considering mootness of the plaintiffs' claims through a Rule 68 offer of 

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judgment, Zeidman held "that a suit brought as a class action should not be dismissed for mootness 

upon tender to the named plaintiffs of their personal claims . . . when . . . there is pending before 

the district court a timely filed and diligently pursued motion for class certification." Id. at 1051 

(emphasis added). In such instances, certification is said to "relate back" to the filing of the class 

complaint for purposes of subject matter jurisdiction. Id. at 1047-48.

Fifth Circuit precedent continues to support 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."). Collectively, this is known as the pickoff, or class action exception to mootness. Here, 

as demonstrated above, all of the Plaintiffs have ongoing harms that have not dissipated and require 

relief (although only one will suffice). Therefore, Defendants’ Motion should be denied because 

the pick-off/class exception to mootness applies.

E. As to wholly past harms (which continue), Defendants’ Motion should be 

denied because the collateral consequences exception applies

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 

York, 392 U.S. 40, 53-59, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (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, 104 S. Ct. 2576, 81 L. Ed. 2d 483 (1984)). Here, this issue turns on whether the Court 

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can still award relief to these Plaintiffs. It can. These Plaintiffs all have ongoing collateral harms 

that still require relief (although having only one such Plaintiff will suffice).

Perhaps anticipating this argument, Defendants cite J. T. v. D.C., 983 F.3d 516, 523 (D.C. 

Cir. 2020). But again, in that case, there were no lingering adverse effects at issue. Yet again, that 

is not this case. Here, 1) the NDAA does not address all of Plaintiffs’ ongoing harms/issues with 

the Army’s enforcement of the mandate; 2) All parties did not agree on anything; and 3) Plaintiffs 

are seeking retrospective relief stemming from past harms alleged in the suit.

1. RFRA permits wide-ranging equitable relief, which can be awarded to Plaintiffs 

and members of the putative class

Beyond the Sixth Circuit’s observation in Doster, 54 F.4th 398, 439 and Doster, 48 F.4th

608, 615 that root and branch relief is available, Congress plainly afforded this Court ample 

authority to award the requested relief in RFRA at 42 U.S.C. 2000bb-1(c):

(c)Judicial relief. A person whose religious exercise has been burdened in violation 

of this section may assert that violation as a claim or defense in a judicial 

proceeding and obtain appropriate relief against a government. Standing to assert a 

claim or defense under this section shall be governed by the general rules of 

standing under article III of the Constitution.

And, in explaining the scope of this “appropriate relief,” the Supreme Court adopted an 

expansive view of the remedy. Tanzin v. Tanvir, 141 S. Ct. 486 (2020). In part, Defendants (citing 

mostly outdated case law) argue that this Court cannot award equitable relief, such as back pay. 

Well, Tanzin forecloses that argument, and, as with Title VII claims, the “appropriate relief” 

mandate and the characterization of backpay as equitable, rather than legal relief, empowers this 

Court to award such appropriate relief irrespective of immunity arguments (which Congress 

waived in passing RFRA), in connection with lost promotion or the like. Kolstad v. ADA, 527 

U.S. 526, 119 S. Ct. 2118 (1999); West v. Gibson, 527 U.S. 212, 119 S. Ct. 1906 (1999). And 

even if backpay cannot be awarded, retirement credit, points, and other relief plainly can.

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Defendants also argue that back pay claims can only be paid for work actually performed, 

and such relief would not be available to those who were deprived of promotions (or were illegally 

discharged), citing Dehne v. United States, 970 F.2d 890 (Fed. Cir. 1992). But Dehne does not 

stand for the proposition for which Defendants cite it for. There, the holding was that “Dehne

must find a substantive right in the Constitution, an act of Congress, or an executive department 

regulation on which to base his claim that ‘can fairly be interpreted as mandating compensation 

by the Federal Government for the damage sustained.’” Id. at 893.

Here, of course, there is a substantive right in the Constitution, and an act created by 

Congress, one that provides equitable relief, and monetary relief, 42 U.S.C. 2000bb-1(c). The 

Supreme Court has read RFRA to have a far-reaching ability to provide relief and even to subject 

individual Government actors to personal liability. Tanzin, 141 S. Ct. at 491. And in the same 

vein, Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir. 1996) does not stand for the proposition 

for which Defendants cite it. Congress waived sovereign immunity by enacting RFRA, and RFRA 

provides for equitable and monetary relief. Again, back pay is not monetary relief, but is 

considered equitable. Kolstad, 527 U.S. 526, 119 S. Ct. 2118; West, 527 U.S. 212.

2. The violation of orders by Plaintiffs and others in the class, which give rise to 

criminal liability, and in which the relevant statute of limitations has not passed, 

renders the action not moot

All Plaintiffs in this action received orders to vaccinate. None of them complied. 

Accordingly, under the Uniform Military Code of Justice (USMC), each (except for Luke 

Chrisman) remains subject to criminal prosecution at any time, for violations of either Article 90 

or Article 92 of the Uniform Code of Military Justice, during the full five-year statute of limitations 

if the Defendants so choose. 10 U.S.C. § 843 (statute of limitations); 10 U.S.C. § 890 (Article 90); 

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10 U.S.C. § 892 (Article 92). Each faces the prospect and potential punishment of up to five years

in a military prison for these violations.15

The current injunction, and requested relief in final judgment, continues to protect these 

plaintiffs from prosecution, and thus the matter is not moot. Sacks v. Office of Foreign Assets 

Control, 466 F.3d 764 (9th Cir. 2006) (violation of repealed statute does not foreclose relief if the 

statute was violated); Bowman v. Schwarzenegger, 2009 U.S. Dist. LEXIS 24678 (ED Cal 2009) 

(same); Dean Foods Co. v. Tracy, 990 F. Supp. 646 (W.D. Wis. 1997) (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) (possibility of enforcement for past 

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

mootness due to possibility of future prosecution in light of unexpired criminal statute of 

limitations).

3. The declaratory relief in this case can serve as a basis for monetary damage claims

for members of the class (perhaps against Secretary Austin or Secretary Wormuth

in their individual capacities), also rendering the case not moot

In Doster, 54 F.4th 398, 426, one of the arguments raised by the Government was that two 

of the Plaintiffs’ claims were moot because, after being threatened with loss of their pilot training 

slots, they undertook a dangerous sojourn to Mexico to get vaccinated. The response by the Sixth 

Circuit was telling: “The Air Force now alleges that these two Plaintiffs' claims are moot. We will 

leave that issue for the district court because other Plaintiffs have live claims for injunctive relief, 

see T.M. ex rel. H.C. v. DeWine, 49 F.4th 1082, 1087 n.3 (6th Cir. 2022), and because RFRA 

permits damages suits, see Tanzin, 141 S. Ct. at 491.” Id. Indeed, the declaratory relief here can 

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

01-11-115724-610 (last accessed 2/15/2023) at Section IV-25 and IV-28 (pages 332 and 335).

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thus serve, under principles of res judicata and/or collateral estoppel, as a follow-on to monetary 

relief in individual cases against the Defendants, particularly in light of Tanzin. As the Sixth 

Circuit observed in Doster, 54 F.4th 398 at 426, that renders the case not moot. Id.

IV. CONCLUSION

Defendants have woefully failed to meet their formidable burden to establish mootness. 

They claim mootness merely due to 1) rescission of a policy that can be re-enacted at any time; 

2) but which ignores ongoing harms that continue to date (and have not been corrected and may 

never be corrected); while they 3) argue that voluntary cessation (and its heightened burden) does 

not apply, even though Congress did not mandate any corrective action other that rescission of a 

particular policy; and where they 4) fail to address a bevy of other exceptions. Their motion to 

dismiss should be denied.

Dated: February 15, 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

dstone@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)

Case 6:22-cv-00049-H Document 96 Filed 02/15/23 Page 38 of 39 PageID 2238
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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

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 February 15, 2023, a true and correct copy of this Memorandum 

in Opposition to Defendants’ Motion to Dismiss was served by CM/ECF on all counsel or parties 

of record.

/s/ Christopher Wiest

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