i 

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

Civil Division

C. SALVATORE D’ALESSIO, JR. 

Director, Torts Branch

ANDREA W. MCCARTHY

Deputy Director, Torts Branch

SHMUEL BUSHWICK

Trial Attorney, Torts Branch

New York Reg. No. 5268271

New Jersey Reg. No. 073632013

U.S. Department of Justice

P.O. Box 7146, Ben Franklin Station

Washington, D.C. 20044

Tel (202) 305-0401; Fax: (202) 616-4314

E-mail: Shmuel.bushwick@usdoj.gov

Counsel for Defendant General B. Chance Saltzman

in his Individual Capacity

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

Sherman Division

------------------------------------------------: 

Jace Yarbrough, : 

 : 

 Plaintiff, : 

 v. : 

 : Case No. 4:23-cv-00876 (ALM)

The United States Space Force, et al., : 

 : General Saltzman’s Motion 

: to Dismiss the Individual 

Defendants : Capacity Claims

 : 

------------------------------------------------: ORAL ARGUMENT REQUESTED

Case 4:23-cv-00876-ALM Document 28 Filed 02/12/24 Page 1 of 29 PageID #: 522
ii

TABLE OF CONTENTS

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

FACTS ..........................................................................................................................................2

STATEMENT OF ISSUES .................................................................................4

ARGUMENT..................................................................................................4

A. THE FERES DOCTRINE RENDERS CLAIMS FOR DAMAGES NON-JUSTICIABLE AND THE 

CLAIMS SHOULD THEREFORE BE DISMISSED UNDER FED.R.CIV. P.12(B)(1)........................4

B. THE COURT LACKS PERSONAL JURISDICTION OVER GENERAL SALTZMAN BECAUSE 

HE DOES NOT HAVE MINIMUM CONTACTS WITH TEXAS..............................................6

C. VENUE IS IMPROPER BECAUSE NOT ALL OF THE DEFENDANTS RESIDE IN TEXAS AND 

SUBSTANTIAL EVENTS DID NOT TAKE PLACE IN TEXAS.................................................8

D. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE 

GRANTED................................................................................................ ......11

i.PLAINTIFF’S BIVENS CLAIMS ARISE IN A NEW CONTEXT..............................12

ii. SPECIAL FACTORS COUNSEL HESITATION IN IMPLYING A DAMAGES 

REMEDY........................................................................................................14

E. GENERAL SALTZMAN IS ENTITLED TO QUALIFIED IMMUNITY ON PLAINTIFF’S 

BIVENS AND RFRA CLAIMS.................................................................................16

i. THE COMPLAINT DOES NOT IDENTIFY OR ALLEGE PERSONAL INVOLVEMENT ON 

THE PART OF GENERAL SALTZMAN........................................................................18

ii. THERE IS NO CLEARLY ESTABLISHED RIGHT TO MAKE POLITICAL COMMENTARY 

IN UNIFORM...................................................................................................18

iii. PLAINTIFF HAS NOT IDENTIFIED A SUBSTANTIAL BURDEN ON HIS RELIGIOUS 

EXERCISE......................................................................................................21

CONCLUSION................................................................................................23

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iii

TABLE OF AUTHORITIES

Cases

Air Sunshine, Inc. v. Carl,

663 F.3d 27 (1st Cir. 2011).........................................................................................................................15

Ajaj v. Fed. Bureau of Prisons,

25 F.4th 805 (10th Cir. 2022).....................................................................................................................17

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) .....................................................................................................................................19

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ........................................................................................................................11, 14, 18

ATEN Int'l Co. v. Emine Tech. Co.,

261 F.R.D. 112 (E.D. Tex. 2009) ................................................................................................................9

Atl. Marine Const. Co. v. United States Dist. Court,

571 U.S. 49 (2013) .........................................................................................................................................8

Banks v. Garrett,

901 F.2d 1084 (Fed. Cir. 1990)........................................................................................................... 19, 22

Biron v. Upton,

No. 19-10862, 2022 U.S. App. LEXIS 34739 (5th Cir. Dec. 14, 2022)...............................................17

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971) ..........................................................................................................................2, 12, 13

Brown v. United States,

227 F.3d 295 (5th Cir. 2000) ........................................................................................................................5

Butler v. Porter,

999 F.3d 287 (5th Cir. 2021) ......................................................................................................................13

Byrd v. Lamb,

990 F.3d 879 (5th Cir. 2021) ......................................................................................................................13

Camreta v. Greene,

563 U.S. 692 (2011) .....................................................................................................................................17

Canada v. United States,

950 F.3d 299 (5th Cir. 2020) ......................................................................................................................14

Carlson v. Green,

446 U.S. 14 (1980) ................................................................................................................................ 12, 13

Chappell v. Wallace,

462 U.S. 296 (1983) .....................................................................................................................................16

Crawford v. Texas Army Nat. Guard,

794 F.2d 1034 (5th Cir. 1986)......................................................................................................................5

Crittindon v. LeBlanc,

37 F.4th 177 (5th Cir. 2022).......................................................................................................................12

Cronn v. Buffington,

150 F.3d 538 (5th Cir. 1998) ......................................................................................................................18

D.C. v. Wesby,

583 U.S. 48 (2018) .......................................................................................................................................12

Davila v. Gladden,

777 F.3d 1198 (11th Cir. 2015)..................................................................................................................17

Case 4:23-cv-00876-ALM Document 28 Filed 02/12/24 Page 3 of 29 PageID #: 524
iv

Davis v. Passman,

442 U.S. 228 (1979) .............................................................................................................................. 12, 13

Doe v. Hagenbeck,

870 F.3d 36 (2d Cir. 2017)..........................................................................................................................16

Dougherty v. United States Dep’t of Homeland Sec.,

No. 22-40665, 2023 U.S. App. LEXIS 24807 (5th Cir. Sep. 19, 2023)................................................13

Douglass v. Nippon Yusen Kabushiki Kaisha,

46 F.4th 226 (5th Cir. 2022).........................................................................................................................6

Egbert v. Boule,

596 U.S. 482 (2022) .............................................................................................................................passim

Emp. Div., Dept. of Hum. Res. of Oregon v. Smith,

494 U.S. 872 (1990) ................................................................................................................................ 5, 17

Farshid v. Allen Indep. Sch. Dist.,

-- F.Supp.3d.--, No. 4:22-cv-00821, 2023 U.S. Dist. LEXIS 145435 (E.D. Tex. August 18, 2023)..4

Fazaga v. FBI,

965 F.3d 1015 (9th Cir. 2020)....................................................................................................................17

Feres v. United States,

340 U.S. 135 (1950) .......................................................................................................................................4

Franklin v. Apple Inc.,

569 F.Supp.3d 465 (E.D. Tex. 2021)........................................................................................................12

Ganther v. Ingle,

75 F.3d 207 (5th Cir. 1996) ........................................................................................................................17

Greer v. Spock,

424 U.S. 828 (1976) .....................................................................................................................................21

Guerra v. Castillo,

82 F.4th 278 (5th Cir. 2023)................................................................................................... 11, 12, 16, 17

In re Grimley,

137 U.S. 147 (1890) .....................................................................................................................................16

In re Volkswagen of Am., Inc.,

545 F.3d 304 (5th Cir. 2008) ......................................................................................................................10

Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc.,

892 F.3d 719 (5th Cir. 2018) ......................................................................................................................12

Klingenschmitt v. United States,

119 Fed. Cl. 163 (2014)........................................................................................................................ 19, 22

Langton v. Cbeyond Commun., L.L.C.,

282 F. Supp. 2d 504 (E.D. Tex. 2003)........................................................................................................7

Lebron v. Rumsfeld,

670 F.3d 540 (4th Cir. 2012) ......................................................................................................................17

Lineberry v. United States,

436 F. App’x 293 (5th Cir. 2010)...............................................................................................................18

Locks v. Laird,

300 F. Supp. 915 (N.D. Cal. 1969)............................................................................................................19

Lovely v. United States,

570 F.3d 778 (6th Cir. 2009) ................................................................................................................... 4, 5

Miller v. U.S. Dep’t of Agr. Farm Servs. Agency,

143 F.3d 1413 (11th Cir. 1998)..................................................................................................................15

Miller v. United States,

42 F.3d 297 (5th Cir. 1995) ..........................................................................................................................5

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v

Morris v. Thompson,

852 F.3d 416 (5th Cir. 2017) ................................................................................................................... 4, 5

Nunes v. NBCUniversal Media, LLC,

582 F. Supp. 3d 387 (E.D. Tex. 2022)........................................................................................................6

Pearson v. Callahan,

555 U.S. 223 (2009) .....................................................................................................................................17

Pettibone v. Russell,

59 F.4th 449 (9th Cir. 2023)................................................................................................................ 14, 15

Polnac v. City of Sulphur Springs,

555 F. Supp. 3d 309 (E.D. Tex. 2021)........................................................................................................2

Potts v. Holt,

617 F. App’x 148 (3d Cir. 2015)................................................................................................................17

Reichle v. Howards,

566 U.S. 658 (2012) .....................................................................................................................................12

Revell v. Lidov,

317 F.3d 467 (5th Cir. 2002) ........................................................................................................................7

Sangha v. Navig8 ShipManagement Priv. Ltd.,

882 F.3d 96 (5th Cir. 2018) ................................................................................................................. 6, 7, 8

Sayers Constr., L.L.C. v. Timberline Constr., Inc.,

976 F.3d 570 (5th Cir. 2020) ................................................................................................................... 6, 7

Schoemer v. United States,

59 F.3d 26 (5th Cir. 1995).............................................................................................................................5

Shields of Strength v. United States DOD,

-- F.Supp.3d --, 2023 U.S. Dist. LEXIS 79024 (E.D. Tex. May 5, 2023)............................................18

Stafford v. Briggs,

444 U.S. 527 (1980) .......................................................................................................................................9

Stramaski v. Lawley,

44 F.4th 318 (5th Cir. 2022).......................................................................................................................12

Stroman Realty, Inc. v. Wercinski,

513 F.3d 476 (5th Cir. 2008) ........................................................................................................................8

Tanzin v. Tanvir,

592 U.S. 43 (2020) .................................................................................................................................. 5, 17

U.S. Navy Seals 1-26 v. Biden,

27 F.4th 336 (5th Cir. 2022).......................................................................................................................22

United States v. Comrie,

842 F.3d 348 (5th Cir. 2016) ......................................................................................................................22

United States v. Stanley,

483 U.S. 669 (1987) ........................................................................................................................14, 15, 16

Utterback v. Trustmark Nat’l Bank,

716 F. App’x 241 (5th Cir. 2017).................................................................................................................8

Vance v. Rumsfeld,

701 F.3d 193 (7th Cir. 2012) ......................................................................................................................16

W. Radio Servs. Co. v. U.S. Forest Serv.,

578 F.3d 1116 (9th Cir. 2009)....................................................................................................................15

Walden v. Fiore,

571 U.S. 277 (2014) .................................................................................................................................. 7, 8

Wilson v. James,

139 F. Supp. 3d 410 (D.D.C. 2015) .............................................................................................19, 20, 22

Case 4:23-cv-00876-ALM Document 28 Filed 02/12/24 Page 5 of 29 PageID #: 526
vi

Ziglar v. Abbasi,

582 U.S. 120 (2017) ........................................................................................................................13, 14, 15

Statutes

10 U.S.C. § 1552...............................................................................................................................................15

10 U.S.C. § 771.......................................................................................................................................... 16, 20

10 U.S.C. § 772.......................................................................................................................................... 16, 20

10 U.S.C. § 938.................................................................................................................................................15

28 U.S.C. § 1391.................................................................................................................................................8

28 U.S.C. § 1391(b)............................................................................................................................................9

28 U.S.C. § 1406(a) ............................................................................................................................................9

42 U.S.C. § 2000bb-1.......................................................................................................................................21

42 U.S.C. §§ 2000bb ..........................................................................................................................................2

5 U.S.C. § 408 ...................................................................................................................................................15

5 U.S.C. § 706 ...................................................................................................................................................15

Rules

Fed. R. Civ. P. 12(b)(1)................................................................................................................................. 1, 4

Fed. R. Civ. P. 12(b)(2)......................................................................................................................................6

Fed. R. Civ. P. 12(b)(3)................................................................................................................................. 8, 9

Fed. R. Civ. P. 12(b)(6)....................................................................................................................................11

Fed. R. Civ. P. 45(c)(1)(A) ..............................................................................................................................11

Regulations

19 Fed. Reg. 5295 (Aug. 18, 1954) ................................................................................................................20

32 C.F.R. § 865.2..............................................................................................................................................15

68 Fed. Reg. 10631 (Feb. 28, 2003)...............................................................................................................20

Other

DEPARTMENT OF DEFENSE INSTRUCTION 1334.01, WEARING OF THE UNIFORM (Oct. 26, 2005)....20

DEPARTMENT OF DEFENSE INSTRUCTION 1334.01, WEARING OF THE UNIFORM (Oct. 26, 2005)....20

DEPARTMENT OF DEFENSE DIRECTIVE 1344.10, POLITICAL ACTIVITIES BY MEMBERS OF THE 

ARMED FORCES (Feb. 19, 2008)................................................................................................................20

AIR FORCE INSTRUCTION 51-508, POLITICAL ACTIVITIES, FREE SPEECH AND FREEDOM OF 

ASSEMBLY (Oct. 12, 2018)..........................................................................................................................20

DEPARTMENT OF AIR FORCE INSTRUCTION 51-508, POLITICAL ACTIVITIES, FREE SPEECH AND 

FREEDOM OF ASSEMBLY OF AIR FORCE PERSONNEL (Mar. 24, 2023)................................................20

Case 4:23-cv-00876-ALM Document 28 Filed 02/12/24 Page 6 of 29 PageID #: 527
1 

GENERAL SALTZMAN’S MOTION TO DISMISS

Defendant General B. Chance Saltzman, in his individual capacity, moves for dismissal 

pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(6). Dismissal 

under Rule 12(b)(1) is appropriate because the Court lacks subject matter jurisdiction over the 

individual capacity claims under the Feres Doctrine. Dismissal under Rule 12(b)(2) is proper because 

the Court lacks personal jurisdiction over General Saltzman. Dismissal under Rule 12(b)(3) is 

appropriate because the Eastern District of Texas is an improper venue in which to bring these claims. 

Dismissal under Rule 12(b)(6) is appropriate because the Supreme Court has never recognized a Bivens

remedy for a claimed First Amendment violation of any kind, and special factors counsel against the 

Court recognizing such a claim for the first time here. It is also appropriate because General Saltzman 

is entitled to qualified immunity on Plaintiff’s Bivens and RFRA claims because Plaintiff has not 

demonstrated the violation of any clearly established constitutional or statutory right. 

INTRODUCTION

On June 11, 2021, Plaintiff violated long-established military policy by offering political 

commentary while in uniform and in a manner suggesting Department of Defense endorsement of 

his positions. He received a non-punitive administrative admonishment as a result. General Saltzman 

was the last in a long line of military officials to reject Plaintiff’s appeal of that reprimand. Plaintiff, 

however, contends that the issuance and upholding of the reprimand violated his First Amendment 

rights of Free Speech and Free Exercise. He brings claims against the Space Force, the Air Force, the 

Secretary of Defense, the Secretary of the Air Force, and General Saltzman in his official capacity.1

 

He also sues General Saltzman personally, asserting claims for damages under the Religious Freedom 

1 The official capacity claims are being defended by the Department of Justice’s Federal Programs 

Branch. 

Case 4:23-cv-00876-ALM Document 28 Filed 02/12/24 Page 7 of 29 PageID #: 528
2

Restoration Act, 42 U.S.C. §§ 2000bb, et seq. (RFRA), and under Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Plaintiff’s claims against General Saltzman in his individual capacity should be dismissed for a 

series of independent but complementary reasons. First, the Court lacks subject matter jurisdiction 

over the individual capacity claims under the Feres Doctrine. The Court also lacks personal jurisdiction 

over General Saltzman and the Eastern District of Texas is an improper venue in which to bring these 

claims. Moreover, the Supreme Court has never recognized a Bivens remedy for a claimed First 

Amendment violation of any kind, and special factors counsel against the Court recognizing such a 

claim for the first time here. Finally, General Saltzman is entitled to qualified immunity on Plaintiff’s 

Bivens and RFRA claims because Plaintiff has not demonstrated the violation of any clearly established 

constitutional or statutory right. 

FACTS

Plaintiff is a military reservist assigned to a position with the U.S. Space Force. (Dkt. #1 ¶¶ 

62, 64). He works and lives in the Dallas, TX, area. (Dkt. #1 ¶ 64; Ex. 1-2 at 2).

2 Between 2020 and 

2021, he performed his military duties in Colorado. (Dkt. #1 ¶¶ 62, 63). 

In June 2021, Plaintiff, while not on military orders, flew to Hawaii to attend the retirement 

ceremony of a fellow Service member. (Dkt. #1 ¶ 8). Plaintiff presided over the ceremony in his 

military uniform. (Dkt. #1 ¶ 86; Exs. 1-4 at 2, 1-7 at 2, 1-8 at 2). The event itself was limited to 25 

people, which included Service members representing the Army, Navy, and Air Force. (Dkt. #1 ¶ 84; 

Ex. 1-4 at 2). Plaintiff offered his remarks while standing on a stage with a sound system. (Exs. 1-4 

at 2, 1-7 at 2, 1-8 at 2). Members of the public stopped as they passed the event to listen and observe. 

(Exs. 1-4 at 2, 1-6 at 2, 1-7 at 2, 1-8 at 2). Plaintiff’s speech included comments about the military 

2 All the referenced exhibits may be considered part of the pleadings because they are referred to in 

the complaint and are central to Plaintiff’s claims. See Polnac v. City of Sulphur Springs, 555 F. Supp. 3d 

309, 323 (E.D. Tex. 2021) (Mazzant, J.).

Case 4:23-cv-00876-ALM Document 28 Filed 02/12/24 Page 8 of 29 PageID #: 529
3

succumbing to a “radical political faction.” (Ex. 1-1 at 5). He claimed that the Department of Defense 

and Service members had become politicized and needed to “compl[y] with the party message.” (Ex. 

1-1 at 6). He criticized a recent Department of Defense anti-extremism training as a “thinly veiled 

flex of political power.” (Ex. 1-1 at 6). He encouraged the audience to challenge the “cancel culture” 

that, he opined, aligned with directives from higher levels of command. (Ex. 1-1 at 6-8).

At least one person in attendance complained about Plaintiff’s remarks. (Dkt. #1 ¶ 11). In 

response, Plaintiff’s military unit launched an internal investigation. (Dkt. #1 ¶ 105; Ex. 1 at 1). The 

unit found that Plaintiff acted improperly and his supervisor issued an administrative adverse action

– a Letter of Admonishment (“LOA”) – chastising Plaintiff for his conduct. (Dkt. #1 ¶ 108; Ex. 1). 

Plaintiff then requested rescission of the LOA to his supervisor, who was stationed in 

Colorado. (Dkt. #1 ¶ 115; Ex. 2). His supervisor denied that request. (Dkt. #1 ¶ 116; Ex. 3). Plaintiff 

therefore began challenging the LOA by requesting that successively higher levels of officers rescind 

the LOA. He directed his first appeal to an officer in Patrick Space Force Base in Florida. (Dkt. #1

¶ 117; Ex. 4). That officer’s legal representative, based in Colorado, denied the request. (Dkt. #1 ¶ 

118; Ex. 5). Plaintiff directed his second appeal to an officer (a one-star general) stationed in Colorado. 

(Dkt. #1 ¶ 119; Ex. 6). That officer rejected the appeal. (Dkt. #1 ¶ 120; Ex. 7). The third appeal was 

also directed to an officer (a three-star general) in Colorado. (Dkt. #1 ¶ 121; Ex. 8). That officer 

rejected the appeal. (Dkt. #1 ¶ 122; Ex. 9). In response, Plaintiff launched his fourth appeal, which 

he sent to General B. Chance Saltzman (a four-star general) in Washington, D.C. (Dkt. #1 ¶ 123; Ex. 

10). Brigadier General Crawford, the Director of Military Justice and Discipline Directorate of the 

Air Force Judge Advocate General’s Corps, responded to Plaintiff’s appeal and rejected Plaintiff’s 

arguments for rescission. (Dkt. #1 ¶ 124; Ex. 11).

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4 

STATEMENT OF ISSUES 

1. Should this court dismiss the individual capacity claims pursuant to Fed. R. Civ. 

P. 12(b)(1) because the Feres Doctrine renders the claims non-justiciable?

2. Should this court dismiss the individual capacity claims pursuant to Fed. R. Civ. 

P. 12(b)(2) because Plaintiff has not plead sufficient facts to establish personal jurisdiction 

over General Saltzman?

3. Should this court dismiss the individual capacity claims pursuant to Fed. R. Civ. 

P. 12(b)(3) appropriate because not all of the defendants reside in Texas and the substantial 

events that gave rise to the Complaint took place in other jurisdictions? In the alternative, 

should the court transfer the case to another District?

4. Should this court dismiss the First Amendment individual capacity claim pursuant 

to Fed. R. Civ. P. 12(b)(6) because the claim arises in a new Bivens context and special factors 

counsel against extending implying a damages remedy? 

5. Should this court dismiss the individual capacity claims pursuant to Fed. R. Civ. 

P. 12(b)(6) because General Saltzman is entitled to qualified immunity?

ARGUMENT

A. THE FERES DOCTRINE RENDERS CLAIMS FOR DAMAGES NON-JUSTICIABLE AND 

THE CLAIMS SHOULD THEREFORE BE DISMISSED UNDER FED. R. CIV. P.12(B)(1).

This Court lacks subject matter jurisdiction because the Feres Doctrine renders both Plaintiff’s 

claims against General Saltzman non-justiciable. Federal Rule of Civil Procedure 12(b)(1) authorizes 

dismissal of a case for lack of subject-matter jurisdiction when the district court lacks statutory and 

constitutional power to adjudicate the case. Farshid v. Allen Indep. Sch. Dist., -- F. Supp. 3d --No. 4:22-

cv-00821, 2023 U.S. Dist. LEXIS 145435, *5 (E.D. Tex. August 18, 2023) (Mazzant, J.). “Once a 

defendant files a motion to dismiss under Rule 12(b)(1), the party invoking jurisdiction bears the 

burden of proof that jurisdiction does in fact exist.” Id. at *6 (internal quotations omitted).

Service members cannot pursue damages claims when their injuries are incident to military 

service. Feres v. United States, 340 U.S. 135 (1950). Although Feres concerned the Federal Tort Claims 

Act, the Fifth Circuit has held that Feres bars all lawsuits based on injuries incident to military service. 

See Morris v. Thompson, 852 F.3d 416, 420 (5th Cir. 2017); see also Lovely v. United States, 570 F.3d 778, 

Case 4:23-cv-00876-ALM Document 28 Filed 02/12/24 Page 10 of 29 PageID #: 531
5

782-83 (6th Cir. 2009) (“[I]n recent years the [Supreme] Court has embarked on a course dedicated to 

broadening the Feres doctrine to encompass, at a minimum all injuries suffered by military personnel 

that are even remotely related to the individual’s status as a member of the military . . . .”) (emphasis in 

original) (internal quotations omitted). The “incident to service” test is construed broadly and shields

not only the United States but also individual Service members (including officers) from “any suit that 

might intrude upon military affairs, second-guess military decisions, or impair military discipline.” 

Morris, 852 F.3d at 420 (citing Miller v. United States, 42 F.3d 297, 302 (5th Cir. 1995)). This doctrine 

has barred claims by members of the reserves, Brown v. United States, 227 F.3d 295 (5th Cir. 2000); 

National Guardsmen, Schoemer v. United States, 59 F.3d 26 (5th Cir. 1995); and ROTC students, Lovely, 

570 F.3d 778. 

With respect to his RFRA claim, Plaintiff cites to the Supreme Court’s holding in Tanzin v. 

Tanvir, 592 U.S. 43 (2020), when he demands nominal damages for the injuries that he alleges. That 

opinion should not be read to overturn or narrow Feres. Tanzin comments on the availability of 

damages when a suit is otherwise justiciable. In rendering that decision, the Court reasoned that RFRA 

was designed to return litigants to the same protections they had prior to its decision in Emp. Div., 

Dept. of Hum. Res. of Oregon v. Smith, 494 U.S. 872 (1990), and referred to the remedies available under 

Section 1983. Tanzin, 592 U.S. at 50. Feres, however, is a bar to Section 1983 claims. See, e.g., Crawford 

v. Texas Army Nat. Guard, 794 F.2d 1034, 1036 (5th Cir. 1986). Thus, if RFRA litigants are meant to 

be aligned with Section 1983 plaintiffs, they too are barred from pursuing tort claims against the 

military and its officers. Although the Court did not discuss justiciability, it did note that damages 

under RFRA are available only “when appropriate.” Tanzin, 592 U.S. at 52. It would certainly be 

inappropriate to recognize damages in a suit that the courts may not hear. 

This case is a prime example of why injuries related to military service are non-justiciable. The 

nominal damages requested in this case would be the very definition of an intrusion upon military 

Case 4:23-cv-00876-ALM Document 28 Filed 02/12/24 Page 11 of 29 PageID #: 532
6 

affairs that would impair military discipline because it would attempt to hold a senior level officer 

individually liable in damages for upholding an administrative reprimand based upon a direct violation 

of a military regulation. Accordingly, this court should dismiss Plaintiff’s claims against General 

Saltzman under Rule 12(b)(1). 

B. THE COURT LACKS PERSONAL JURISDICTION OVER GENERAL SALTZMAN 

BECAUSE HE DOES NOT HAVE MINIMUM CONTACTS WITH TEXAS.

Dismissal is appropriate because the Complaint does not allege any facts that vest the Eastern 

District of Texas with personal jurisdiction over General Saltzman. 

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) challenges a court’s 

personal jurisdiction over a defendant. See Fed. R. Civ. P. 12(b)(2). “[F]ederal courts can exert power 

only over out-of-State defendants that are ‘subject to the jurisdiction of a court of general jurisdiction 

in the state where the district court is located.’” Sayers Constr., L.L.C. v. Timberline Constr., Inc., 976 F.3d 

570, 573 (5th Cir. 2020) (quoting Fed. R. Civ. P. 4(k)(1)(A)). Texas’s long-arm statute aligns with the 

federal limits of due process, and the inquiry is therefore whether personal jurisdiction comports with 

the basic tenets of the Constitution. See Sangha v. Navig8 ShipManagement Priv. Ltd., 882 F.3d 96, 101 

(5th Cir. 2018). In relevant part, due process requires that a defendant have minimum contacts with 

the state of filing and that exercising jurisdiction is consistent with “traditional notions of fair play and 

substantial justice.” Id. The plaintiff bears the burden of proving the court’s jurisdiction once a 

defendant raises the issue via a Rule 12(b)(2) motion. Douglass v. Nippon Yusen Kabushiki Kaisha, 46 

F.4th 226, 232 n.8 (5th Cir. 2022); see also Nunes v. NBC Universal Media, LLC, 582 F. Supp. 3d 387, 

398 (E.D. Tex. 2022).

Case 4:23-cv-00876-ALM Document 28 Filed 02/12/24 Page 12 of 29 PageID #: 533
7

Specific jurisdiction3 exists when a non-resident defendant purposefully availed himself (i.e.,

intentionally directed his activities towards) the forum state and the litigation concerns or stems from 

those activities. See Sangha, 882 F.3d at 101. Phrased differently, jurisdiction is extended over 

individuals who have purposefully availed themselves of the privilege of conducting activities in the 

forum state and thereby invoked the benefits and protections of the forum’s laws. Revell v. Lidov, 317 

F.3d 467, 470 (5th Cir. 2002). This “purposeful availment” requirement is designed to protect 

defendants from having to litigate cases in forums where “they have only random, fortuitous, or 

attenuated contacts.” Sayers Constr., L.L.C., 976 F.3d at 573. 

For personal jurisdiction to lie, a defendant’s contacts must create “a substantial connection with 

the forum State.” Walden v. Fiore, 571 U.S. 277, 284 (2014). The plaintiff cannot be the sole link 

between the defendant and the forum – the minimum contacts underpinning jurisdiction must have 

been created by the defendant himself and must be with the forum state and not just people who reside 

there. Id. at 284-85. “[H]owever significant the plaintiff’s contacts with the forum may be, those 

contacts cannot be decisive in determining whether the defendant’s due process rights are violated.” 

Id. at 285 (internal citations omitted). 

Here, as in Walden, it is clear that General Saltzman does not have minimum contacts with 

Texas. In Walden, the plaintiffs brought suit in Nevada against a deputized DEA agent working in 

Georgia, who seized a suitcase of cash plaintiffs were attempting to transport to Nevada and later 

contributed to an affidavit to show probable cause for forfeiture proceedings in federal court in 

Georgia. 571 U.S. at 280. The agent “never traveled to, conducted activities within, contacted anyone 

3 The broader concept of general jurisdiction is appropriate “when a defendant’s contacts with the 

forum state are substantial and continuous and systematic but unrelated to the instant cause of action.” 

Langton v. Cbeyond Commun., L.L.C., 282 F. Supp. 2d 504, 508 (E.D. Tex. 2003) (internal citations 

omitted). Plaintiff alleges no facts to suggest that General Saltzman has “continuous and systematic” 

contacts with the State of Texas. These arguments therefore focus on the narrower jurisdictional 

question. 

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8 

in, or sent anything [to] anyone to Nevada”, and as such he had “formed no jurisdictionally relevant 

contacts with Nevada.” Id. at 289. The same is true here. The only connections to Texas were created 

by Plaintiff, who lives and hired an attorney who practices there and received the final denial on the 

collateral challenge there. See Ex. 2 at 1 (letter from Plaintiff’s counsel directing the recipient to 

correspond with him only). This one-time correspondence, sent on General Saltzman’s behalf

“through his agent,” (Dkt. # 1 ¶ 31), to Plaintiff’s attorney in Texas (at Plaintiff’s request) is plainly 

insufficient to establish personal jurisdiction. In Stroman Realty, Inc. v. Wercinski, 513 F.3d 476, 483-84

(5th Cir. 2008), the Court of Appeals held that sending a cease-and-desist order to the plaintiff in 

Texas and corresponding with the plaintiff’s attorneys was not enough to show that the defendant 

had personally availed herself of the benefits of Texas law. 

Plaintiff has not demonstrated that General Saltzman has minimum contacts with Texas and 

that exercising jurisdiction is consistent with “traditional notions of fair play and substantial justice.” 

See Sangha, 882 F.3d at 101. Accordingly, this Court should dismiss Plaintiff’s claims under Rule 

12(b)(2). 

C. VENUE IS IMPROPER BECAUSE NOT ALL OF THE DEFENDANTS RESIDE IN TEXAS 

AND SUBSTANTIAL EVENTS DID NOT TAKE PLACE IN TEXAS. 

The Eastern District of Texas is an improper forum for the personal-capacity claims against 

General Saltzman because not all of the defendants reside in Texas and the substantial events that 

gave rise to the Complaint took place in other jurisdictions. 

Federal Rule of Civil Procedure 12(b)(3) allows a defendant to move to dismiss a case for 

improper venue. “[V]enue is designed to protect the defendant against the risk that a plaintiff will 

select an unfair or inconvenient place of trial.” Utterback v. Trustmark Nat’l Bank, 716 F. App’x 241, 

244 (5th Cir. 2017) (internal citations omitted). Venue is governed by 28 U.S.C. § 1391. Atl. Marine 

Const. Co. v. United States Dist. Court, 571 U.S. 49, 55 (2013). Venue over the individual capacity claims 

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against General Saltzman must be assessed under 28 U.S.C. § 1391(b). See Stafford v. Briggs, 444 U.S. 

527, 542-44 (1980) (explaining that 28 U.S.C. § 1391(e) does not apply to federals employees sued in 

an individual capacity). Section 1391(b) lists three situations where venue is appropriate:

(1) a judicial district in which any defendant resides, if all defendants are residents of 

the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving rise 

to the claim occurred, or a substantial part of property that is the subject of the action 

is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in 

this section, any judicial district in which any defendant is subject to the court’s 

personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b). 

When venue is deficient, courts are empowered to elect between dismissing the case and, if 

the interests of justice so demand, transferring it to a court where venue would be proper. See 28 

U.S.C. § 1406(a). The burden of proof on a Rule 12(b)(3) motion shifts to the plaintiff once the 

defendant raises the issue. See, e.g., ATEN Int'l Co. v. Emine Tech. Co., 261 F.R.D. 112, 120 (E.D. Tex. 

2009). 

As noted in the preceding section, the complaint does not contain any factual allegations to 

suggest that General Saltzman resides in Texas.

4

 See Section B, supra. Therefore, the first factor under 

1391(b) is not satisfied, because it requires that all defendants reside in a state for venue to be 

appropriate there. Nor is the second factor satisfied. Section 1391(b)(2) directs the court to look to 

the events that form a substantial part of the underlying facts. The originating event here took place 

in Hawaii. (Dkt. #1 ¶ 8). The LOA was issued in Colorado. See LOA and Rescission Request, Exs. 

1, 2. The request to rescind the LOA was directed to Colorado. (Ex. 2). The response to that request 

4 It bears mention that Plaintiff also has no connection to the Eastern District of Texas as he both 

lives and works in Dallas, see (Dkt. #1 ¶ 65), Ex. 1-2), which is situated in the Northern District of 

Texas. 

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was issued from Colorado. (Ex. 3). Plaintiff’s first appeal was directed to Patrick Space Force Base 

in Florida. (Ex. 4). The response to that appeal came from Colorado. (Ex. 5). The second appeal

was directed to Colorado. (Ex. 6). The response to that appeal came from Colorado. (Ex. 7). The 

third appeal was directed to Colorado. (Ex. 8). The response to that challenge was issued from 

Colorado. (Ex. 9). The fourth appeal – the only one involving General Saltzman – was directed to 

Washington, D.C. (Ex. 10). The response to that appeal was issued from Maryland. (Ex. 11). The 

only “event” that can be said to have taken place in the Eastern District of Texas is the receipt, by 

Plaintiff’s counsel, of the responses to his appeals. 

The events giving rise to this action are the speech in Hawaii, the issuance of the LOA, and 

the rejections by the chain of command of Plaintiff’s appeals. None of those events took place in the 

Eastern District of Texas. Accordingly, venue does not lie here, and this matter should be dismissed.

To the extent that any venue is appropriately situated to hear these claims, it is the United 

States District Court for the District of Colorado. Were this court to consider transferring the claims 

against General Saltzman in lieu of dismissing them, that decision would be governed by the private 

and public interest factors identified in In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008). 

The non-exhaustive private interest factors include: “(1) the relative ease of access to sources of proof; 

(2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of 

attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, 

expeditious and inexpensive.” Id. (internal citations omitted). The similarly non-exhaustive public 

interest factors include: “(1) the administrative difficulties flowing from court congestion; (2) the local 

interest in having localized interests decided at home; (3) the familiarity of the forum with the law that 

will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the 

application of foreign law.” Id. (internal citations omitted). 

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In terms of the private interest factors, it would be relatively easier to access the sources of 

proof – the witnesses identified by their involvement in the LOA and Plaintiff’s collateral challenges

– since the compulsory process to reach those witnesses must be within 100 miles of the courthouse, 

see Fed. R. Civ. P. 45(c)(1)(A), and Plaintiff has not alleged that they can be reached within 100 miles 

of this court; accessibility to the airport nearest to Sherman, TX, is limited, which means that there 

will be increased costs in having witnesses attend proceedings in the District; and the fact that many 

witnesses are affiliated with the military means that the proximity to a military installation will remove 

practical problems and make trial easier, more expeditious, and less expensive. 

With regard to the public interest factors, there is no particular local interest for the court in 

this matter as the issues raised are of national concern; the law that will govern the matter is a blend 

of constitutional issues and military regulations, which makes a district that frequently deals with 

military concerns more appropriate.

D. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE 

GRANTED. 

Plaintiff’s claims fail because no Bivens remedy is available and because General Saltzman is 

entitled to qualified immunity on Plaintiff’s Bivens and RFRA claims. 

Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate when the facts in a 

complaint, taken as true, fail to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Id. Legal conclusions, conclusory statements, naked assertions, and factual allegations that 

do not rise above the speculative level are not facially plausible. Guerra v. Castillo, 82 F.4th 278, 284 

(5th Cir. 2023). “Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper 

attachments, documents incorporated into the complaint by reference, and matters of which a court 

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12

may take judicial notice.” Innova Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 

719, 726 (5th Cir. 2018) (internal citations omitted); see also Franklin v. Apple Inc., 569 F. Supp. 3d 465, 

476-77 (E.D. Tex. 2021) (Mazzant, J.). This pleading standard is unaltered when a motion to dismiss 

is based upon qualified immunity. Guerra, 82 F.4th at 285. A plaintiff cannot overcome a qualified 

immunity defense unless the complaint demonstrates the violation of a statutory or constitutional right 

that was clearly established at the time of the alleged violation. See Stramaski v. Lawley, 44 F.4th 318, 

328 (5th Cir. 2022). For a right to be clearly established, there must be cases of “controlling authority” 

or “a robust consensus of cases of persuasive authority,” that place the constitutional or statutory 

question “beyond debate.” Crittindon v. LeBlanc, 37 F.4th 177, 186, 202 (5th Cir. 2022) (internal 

citations omitted); see also Reichle v. Howards, 566 U.S. 658, 664 (2012). “It is not enough that the rule 

is suggested by then-existing precedent.” D.C. v. Wesby, 583 U.S. 48, 63 (2018). The precedent at the 

time must have squarely governed the facts at hand. Crittindon, 37 F.4th at 202. 

i. PLAINTIFF’S BIVENS CLAIMS ARISE IN A NEW CONTEXT. 

In Bivens, 403 U.S. 388, the Supreme Court recognized a cause of action for damages against 

federal employees in their individual capacities after federal narcotics agents were accused of violating 

the Fourth Amendment by conducting an unreasonable, warrantless search. See Egbert v. Boule, 596

U.S. 482, 490-91 (2022). The Supreme Court has only twice extended that holding. See Davis v. 

Passman, 442 U.S. 228 (1979) (Fifth Amendment claim based on a Congressman’s firing of a female 

staffer on the basis of sex); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment claim for failure 

to provide medical attention to asthmatic federal prisoner). It has directed lower courts to approach 

Bivens claims with caution and avoid recognizing new causes of action if there is even a single rational 

reason to defer to Congress, which is better positioned to determine what should and should not 

become a cause of action. See Egbert, 596 U.S. at 490-91. 

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Courts approaching Bivens claims must first ask “whether the case presents a new Bivens context 

– i.e., is it meaningfully different from the three cases in which the Court has implied a damages 

action.” Id. at 492 (internal quotations omitted); see also Byrd v. Lamb, 990 F.3d 879, 882 (5th Cir. 2021). 

A non-exhaustive list of meaningful differences includes: 

The rank of the officers involved; the constitutional right at issue; the generality or 

specificity of the official actions; the extent of judicial guidance as to how an officer 

should respond to the problem . . . ; the statutory or other legal mandate under which 

the officer was operating; the risk of disruptive intrusion by the judiciary into the 

functioning of other branches; or the presence of potential special factors that 

previous Bivens cases did not consider. 

Ziglar v. Abbasi, 582 U.S. 120, 139-40 (2017). Whenever a case presents a new context, a court must 

determine whether it is appropriate to “expand[]” Bivens into that context, mindful that doing so is “a 

disfavored judicial activity.” Id. at 135 (internal citation omitted). Courts should consider “any 

alternative, existing process[es] for protecting the [injured party’s] interest,” as well as any “special 

factors counselling hesitation” in implying a remedy. Id. at 136-37. “[S]eparation-of-powers 

principles” are “central to th[is] analysis.” Id. at 135. The court should ask “whether the Judiciary is 

well suited, absent congressional action or instruction, to consider and weigh the costs and benefits 

of allowing a damages action to proceed.” Id. at 136. “The answer most often will be” no. Id. at 135.

Plaintiff’s claim here is meaningfully different from the trinity of cases in which a Bivens cause

of action have been recognized. The constitutional violations Plaintiff asserts are based in the First 

Amendment. (Dkt. #1 ¶ 237). Both the Supreme Court and the Fifth Circuit, however, have held 

claims under the First Amendment necessarily arise in a new context. Egbert, 596 U.S. at 498; Dougherty 

v. United States Dep’t of Homeland Sec., No. 22-40665, 2023 U.S. App. LEXIS 24807 at 12-13 (5th Cir. 

Sep. 19, 2023); Butler v. Porter, 999 F.3d 287, 293 (5th Cir. 2021). Furthermore, Bivens, Davis, and Carlson

all arose in the civilian environment and were based on the direct actions of the individually named 

defendants. See generally Bivens, 403 U.S. at 389; Davis, 442 U.S. at 230; Carlson, 446 U.S. at 16, n. 1. 

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Plaintiff’s First Amendment claim for damages arises in the military environment and attempt to hold 

General Saltzman vicariously liable for the conduct of his subordinate. (Dkt. #1 ¶ 124). Those 

distinctions are meaningful. See, e.g., United States v. Stanley, 483 U.S. 669, 684 (1987) (rejecting Bivens

claims that “arise out of or are in the course of activity incident to [military] service”); Iqbal, 556 U.S. 

at 676 (“Government officials may not be held liable for the unconstitutional conduct of their 

subordinates under a theory of respondeat superior.”); see also Pettibone v. Russell, 59 F.4th 449, 455 (9th 

Cir. 2023) (finding new context where the defendant did not “personally” engage in the alleged 

unconstitutional conduct). 

Plaintiff’s First Amendment for damages claim clearly arises in a new context. As a result, the 

court must consider whether special factors counsel against recognizing that claim.

ii. SPECIAL FACTORS COUNSEL HESITATION IN IMPLYING A DAMAGES 

REMEDY. 

Once a court identifies a new context, it must next determine whether there is even a single 

special factor present suggesting that Congress is better equipped to weigh the social costs and benefits 

of permitting a cause of action for damages to proceed. See Egbert, 596 U.S. at 491; Canada v. United 

States, 950 F.3d 299, 309 (5th Cir. 2020) (stating that courts must refrain from creating an implied 

cause of action when special factors are present). This analysis is rooted in separation-of-powers 

concerns. See Abbasi, 582 U.S. at 135-36. 

The presence of an alternative remedial structure can, in and of itself, limit the court’s power 

to create a new Bivens cause of action. Id. at 137. The adequacy of an alternative remedial structure is 

also a question for the legislative branch and not the judiciary. “So long as Congress or the Executive 

has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the 

courts cannot second-guess that calibration by superimposing a Bivens remedy.” Egbert, 596 U.S. at 

498. Plaintiff had and has multiple alternative remedial structures available to him. First, Plaintiff is 

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pursuing injunctive relief. The availability of an avenue to pursue injunctive relief is “of central 

importance” in deciding whether to imply a Bivens remedy. Abbasi, 582 U.S. at 144; accord Dudley v. 

United States, No. 4:19-cv-317-O, 2020 U.S. Dist. LEXIS16856, at *22 (N.D. Tex. Feb. 3, 2020) 

(finding the ability to seek an injunction was an alternative remedy precluding a Bivens claim). The 

Administrative Procedure Act (“APA”), for example, allows for judicial review of final agency actions 

and provides for various forms of relief. See 5 U.S.C. § 706. Courts have consistently declined to 

supplement the APA’s procedures with a judicially implied cause of action under Bivens. See, e.g., Air 

Sunshine, Inc. v. Carl, 663 F.3d 27, 37 (1st Cir. 2011); W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 

1116, 1123 (9th Cir. 2009); Miller v. U.S. Dep’t of Agr. Farm Servs. Agency, 143 F.3d 1413, 1416 (11th Cir. 

1998). 

Plaintiff also has three military-specific alternative remedial structures available. He can raise

his concerns to his chain of command, see 10 U.S.C. § 938 (obligating action by senior military officials 

when a Service member claims he was wronged by his commanding officer and denied redress), or to 

the Department of Defense Inspector General, see 5 U.S.C. § 408; see also Pettibone, 59 F.4th at 456

(recognizing that an Inspector General created pursuant to the Inspector General Act of 1978 qualifies 

as an alternative remedy under Bivens). The allegations suggest that Plaintiff pursued the former. See 

generally Dkt. #1 ¶¶ 117-25. That he may have been dissatisfied with the result is irrelevant. See Egbert, 

596 U.S. at 499. Finally, Plaintiff could petition the Air Force Board for Correction of Military Records 

to remove the LOA from his personnel file. See 10 U.S.C. § 1552; 32 C.F.R. § 865.2. 

Moreover, the Supreme Court has long held that “no Bivens remedy is available for injuries 

that arise out of or are in the course of activity incident to [military] service.” Stanley, 483 U.S. at 684

(internal quotations omitted). The Constitution explicitly provides Congress with the responsibility 

to regulate the “land and Naval forces.” U.S. Const., Art. I, § 8, cl. 14. Congress, in turn, directed the 

Executive Branch to determine when it would be appropriate for Service members to wear their 

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military uniforms and what conduct is acceptable in their uniforms. See 10 U.S.C. §§ 771 – 72; see also

Section E.ii., infra. Recognizing an independent cause of action in this circumstance would “place 

great stress on the separation of powers,” Egbert, 596 U.S. at 497, n.3, because it would require the 

judiciary to insert itself into powers explicitly assigned to a co-equal branch of government. 

A Bivens remedy is not available here because it would interfere with the unique disciplinary 

needs of the military and the relationship between Service members and their command—a 

relationship that is without parallel in the civilian world. See Chappell v. Wallace, 462 U.S. 296, 298-304

(1983); Stanley, 483 U.S. at 683. The military “is not a deliberative body. It is the executive arm. Its 

law is that of obedience. No question can be left open as to the right to command in the officer, or 

the duty of obedience in the soldier.” In re Grimley, 137 U.S. 147, 153 (1890). Officers must be able 

to control this environment and take decisive action without fear that they will be subject to personal 

liability at the hands of their subordinates. See Chappell, 462 U.S. at 304. This includes reprimanding 

when appropriate. Because of the distinctive nature of the military, courts have uniformly held that 

the Legislative Branch would be better positioned to recognize a cause of action that alters the 

relationship between an officer and their subordinate. See, e.g., Doe v. Hagenbeck, 870 F.3d 36 (2d Cir. 

2017); Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012). Because there are special factors present, the 

Court should refrain from recognizing a Bivens cause of action. 

E. GENERAL SALTZMAN IS ENTITLED TO QUALIFIED IMMUNITY ON PLAINTIFF’S 

BIVENS AND RFRA CLAIMS.

Even if this court disagrees with General Saltzman’s jurisdictional arguments and determines 

that a Bivens remedy is available, dismissal is nevertheless appropriate because he is entitled to qualified 

immunity on all claims asserted against him. Once a defendant raises the shield of qualified immunity, 

the plaintiff bears the burden of demonstrating that the immunity is unavailable. Guerra, 82 F.4th at

285. In order to meet that burden, the complaint must set forth facts showing (1) that the official 

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violated a statutory or constitutional right, and (2) that the right was clearly established at the time of 

the alleged misconduct. Id. The Supreme Court has directed lower courts to use discretion in deciding 

which prong to address first and has noted that “courts should think hard, and then think hard again, 

before turning small cases into large ones.” Camreta v. Greene, 563 U.S. 692, 707 (2011); see also Pearson 

v. Callahan, 555 U.S. 223, 225 (2009) (identifying a non-exhaustive list of reasons why courts should 

begin with the second prong).

General Saltzman is entitled to qualified immunity on both the Bivens and the RFRA claims. 

In Tanzin, the Supreme Court explained that the RFRA provided “the same avenues of relief against 

officials that they would have had before [its decision in Employment Division v.] Smith,” including a 

“damages claim [for] clearly established violations of the First Amendment.” 592 U.S. at 51 (citing 

Smith, 494 U.S. 872). As the Supreme Court’s use of the term “clearly established” implies, such claims 

would have been subject to the defense of qualified immunity. The Fifth Circuit has also assumed

that the defense is available to federal officials sued under RFRA. See Biron v. Upton, No. 19-10862, 

2022 U.S. App. LEXIS 34739, at *4 (5th Cir. Dec. 14, 2022). In Biron, the Circuit noted that it had 

previously “appl[ied] the qualified immunity analysis to a RFRA claim against state officials before 

RFRA was limited to apply only to federal officials,” and thus the defense would naturally extend to 

claims against federal officials as well. Id. at *4 n.1 (citing Ganther v. Ingle, 75 F.3d 207, 211 (5th Cir.

1996)). That conclusion is consistent with the decisions of other circuits that have addressed the 

question. See Ajaj v. Fed. Bureau of Prisons, 25 F.4th 805, 813 (10th Cir. 2022); Fazaga v. FBI, 965 F.3d 

1015, 1061 (9th Cir. 2020), rev’d and remanded on other grounds, 595 U.S. 344 (2022); Davila v. Gladden, 777 

F.3d 1198, 1210 (11th Cir. 2015); Potts v. Holt, 617 F. App’x 148, 150-51 (3d Cir. 2015); Lebron v. 

Rumsfeld, 670 F.3d 540, 557 (4th Cir. 2012). Moreover, as another court in this District has recognized, 

applying qualified immunity in RFRA cases would be consistent with the law’s legislative history and 

Congress’s intent for that statute “to restore the compelling interest test” in religious freedom cases. 

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Shields of Strength v. United States DOD, -- F. Supp. 3d --, 2023 U.S. Dist. LEXIS 79024, at *39 (E.D. 

Tex. May 5, 2023) (Barker, J.). 

i. THE COMPLAINT DOES NOT IDENTIFY OR ALLEGE PERSONAL 

INVOLVEMENT ON THE PART OF GENERAL SALTZMAN.

General Saltzman is entitled to qualified immunity because Plaintiff has not plausibly alleged 

that he personally participated in the alleged unconstitutional conduct. In an individual-capacity suit, 

“a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, 

has violated the Constitution.” Iqbal, 556 U.S. at 676 (emphasis added); see also Lineberry v. United States, 

436 F. App’x 293, 295 (5th Cir. 2010) (dismissing Bivens claim against BOP Director for failure to 

allege personal involvement where the plaintiff’s “conclusional allegations are not supported by any 

specific facts showing [the Director’s] personal involvement in the daily operation of the prison, or 

that [the Director] personally implemented a deficient policy resulting in a constitutional violation”) 

(emphasis added); Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998). Plaintiff alleges that he 

submitted a collateral challenge to General Saltzman and that Brigadier General Crawford responded 

with a denial. (Dkt. #1 ¶¶ 123-24). He does not allege sufficient facts to establish that General 

Saltzman was involved in that process or that he even knew about the challenge. The letter was not 

issued by General Saltzman or a member of his immediate staff. Without more, the Complaint lacks 

plausible information regarding General Saltzman’s personal involvement and qualified immunity is 

appropriate. 

ii. THERE IS NO CLEARLY ESTABLISHED RIGHT TO MAKE POLITICAL 

COMMENTARY IN UNIFORM.

General Saltzman is entitled to qualified immunity on the Bivens claim because he did not 

violate any clearly established constitutional right. The “right” Plaintiff invokes is for a military 

reservist to exercise his religion by making faith-based political commentary and contemptuous 

remarks about his superior officers while in uniform and in public. There is no Supreme Court or 

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Fifth Circuit case clearly establishing such a right at issue, nor is there a robust consensus of persuasive 

authority placing “constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). 

In Locks v. Laird, 300 F. Supp. 915, 918 (N.D. Cal. 1969), aff’d on other grounds, 441 F.2d 479 

(9th Cir. 1971), Airmen on Active Duty challenged an Air Force regulation that limited their ability to 

wear their uniforms at public demonstrations critical of the Department of Defense. The court found 

that “[t]here is no constitutional right of a member of the Air Force to wear his uniform when and 

wherever he pleases” and that a limitation on the wear of the uniform during political situations does 

not run afoul of the First Amendment. Other cases have also consistently emphasized the difference 

between conduct in and out of the uniform. See, e.g., Klingenschmitt v. United States, 119 Fed. Cl. 163, 

193 (2014) (finding no violation of RFRA when Navy chaplain was prohibited from offering prayers 

at a political event while in uniform). Furthermore, in Banks v. Garrett, 901 F.2d 1084 (Fed. Cir. 1990), 

the Federal Circuit found that a senior naval reserve officer was acting in his “official capacity” when 

he shared political opinions using his official letterhead and official signature block. It expressly 

rejected the plaintiff’s argument that he was not a “person in the naval service,” and therefore not 

subject to the applicable Navy regulation, because he was a reserve officer. Id. at 1086. 

Plaintiff cites to Wilson v. James, 139 F. Supp. 3d 410 (D.D.C. 2015), to contend that the Air 

Force previously conceded that its “regulations do not apply to the ‘off-duty conduct’ of members 

who are not on active duty.” (Dkt. # 1 ¶ 143). The case actually supports General Saltzman’s position. 

The Wilson plaintiff, an enlisted member of the Air National Guard, received two separate 

administrative reprimands. The first concerned the use of his official military e-mail account (to 

include his official signature block) to e-mail a senior officer at a separate military institution and 

criticize that institution’s willingness to allow same-sex couples to wed in its chapel. Wilson, 139 F. 

Supp. 3d at 418-19. The second concerned a negative post about his commander on Facebook. Id.

at 421. Although the Air Force accepted that the regulation at issue in Wilson did not apply to that 

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plaintiff's particular conduct (his off-duty Facebook post), id. at 429, the court took no issue with the 

first reprimand because it was based on his use of his military e-mail account to military officials and 

thus had an air of official sanction. Id. at 425-26. Similarly, Plaintiff’s reprimand concerned conduct 

he took while in military uniform that was suggestive of official, as opposed to purely private, speech. 

These cases, along with an array of statutes and regulations, establish that the Secretary of 

Defense has broad authority to regulate the conduct of Service members while they are in uniform, 

even when they are not on active duty, and that this authority includes regulations of those Service

members’ speech that may discredit the military or may be understood as giving the speech official 

sanction. See 10 U.S.C. §§ 771 – 72; Exec. Order No. 10554, 19 Fed. Reg. 5295 (Aug. 18, 1954) (as 

amended by Exec. Order No. 13286, 68 Fed. Reg. 10631 (Feb. 28, 2003)). At the time of Plaintiff’s 

actions, Service members were prohibited from wearing the uniform in situations that might tend to 

bring discredit to the military or could reasonably give rise to an inference that the Department of 

Defense officially sanctions individual political positions. See DEPARTMENT OF DEFENSE 

INSTRUCTION 1334.01, WEARING OF THE UNIFORM, para. 3.1.4 (Oct. 26, 2005) (attached as Exhibit 

12) repealed and superseded by DEPARTMENT OF DEFENSE INSTRUCTION 1334.01, WEARING OF THE 

UNIFORM (JULY 13, 2021); DEPARTMENT OF DEFENSE DIRECTIVE 1344.10, POLITICAL ACTIVITIES BY 

MEMBERS OF THE ARMED FORCES, paras. 4 and 4.1.4 (Feb. 19, 2008) (extending the restriction to 

Airmen not on Active Duty); AIR FORCE INSTRUCTION 51-508, POLITICAL ACTIVITIES, FREE SPEECH 

AND FREEDOM OF ASSEMBLY, para. 2.4.2 (Oct. 12, 2018) (attached as Exhibit 13) (“[A] member of 

the [Air Force] not on active duty may take the actions and participate in the activities prohibited 

[earlier in the regulation], provided the member is not in uniform and does not otherwise act in a manner 

that could reasonably give rise to the inference or appearance of official sponsorship, approval, or 

endorsement.”) (emphasis added) repealed and superseded by DEPARTMENT OF AIR FORCE INSTRUCTION 

51-508, POLITICAL ACTIVITIES, FREE SPEECH AND FREEDOM OF ASSEMBLY OF AIR FORCE 

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PERSONNEL (Mar. 24, 2023). That prohibition is rooted in the military’s tradition of remaining 

apolitical. See Greer v. Spock, 424 U.S. 828, 839 (1976) (referencing “the American constitutional 

tradition of a politically neutral military under civilian control.”). 

Plaintiff shared his personal, political beliefs about the Department of Defense and efforts to 

combat extremism in the ranks while wearing his military uniform and presiding over a military 

ceremony. (Dkt. #1 ¶¶ 8, 86; Exs. 1-1 at 5-8; 1-4 at 2, 1-7 at 2, 1-8 at 2). He did so on a stage, using 

a sound system, as members of the public walked by and stopped to observe. (Exs. 1-4 at 2, 1-6 at 2, 

1-7 at 2, 1-8 at 2). He encouraged the Service members present to challenge the anti-extremism efforts 

in place. (Ex. 1-1 at 6-8). Much like the use of an official e-mail address, signature block, or letterhead, 

the fact that he made his remarks while wearing his uniform gave his comments an air of official 

sanction; his actions directly violated the regulations that were in place at the time. There was no 

consensus of persuasive authority to believe that this conduct was protected under the First 

Amendment, let alone that upholding an administrative response to it violated any clearly established 

right. As a result, General Saltzman is entitled to qualified immunity on Count VII. 

iii. PLAINTIFF HAS NOT IDENTIFIED A SUBSTANTIAL BURDEN ON HIS 

RELIGIOUS EXERCISE.

The Complaint fails to allege how not rescinding the LOA violated clearly established law 

under RFRA. RFRA provides that the “[g]overnment shall not substantially burden a person’s 

exercise of religion even if the burden results from a rule of general applicability,” unless the challenged 

conduct is: (1) “in furtherance of a compelling government interest;” and (2) “the least restrictive 

means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. “To claim 

RFRA’s protections, a person must show that (1) the relevant religious exercise is grounded in a 

sincerely held belief and (2) the government’s action or policy substantially burdens that exercise by, 

for example, forcing the plaintiff to engage in conduct that seriously violates his or her religious 

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22

beliefs.” United States v. Comrie, 842 F.3d 348, 351 (5th Cir. 2016) (citations omitted). “Only if the 

religious person carries this burden does the government bear the burden of proof to show that its 

action or policy (1) is in furtherance of a compelling government interest and (2) is the least restrictive 

means of furthering that interest.” Id. 

Plaintiff’s allegations do not rise to the level of imposing a “substantial burden” as that term 

is defined in clearly established law. Plaintiff claims (for the first time since the LOA was issued) that 

he has a sincerely held religious belief requiring him to publicly profess his perception of the truth. 

(Dkt. #1 ¶¶ 9, 10, 97, 100). He claims that he was substantially burdened by the LOA because it 

labeled his actions “insubordinate, disrespectful, and unbecoming of an officer in the military” and 

references concerns that future comments he may make as a civilian will result in military discipline. 

(Dkt. #1 ¶¶ 127, 156). “[A] government action or regulation creates a substantial burden on religious 

exercise if it truly pressures the adherent to significantly modify his religious behavior and significantly violates 

his religious beliefs.” U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336, 350 (5th Cir. 2022) (emphasis added). 

Plaintiff does not state that his religious beliefs demand that he share his view of the truth while in 

uniform and in public. The applicable military regulations mentioned in the preceding section and the 

LOA do not take issue with Plaintiff publicly sharing his view of the truth. They do restrict, however, 

his ability to offer that political commentary while in uniform. See Wilson, 139 F. Supp. 3d at 425-26 (the 

restrictions and reprimand “did not bar him from voicing [his positions] in other fora or by other 

means, and certainly not in his private affairs.”). Requiring Plaintiff to share his personal views out of 

uniform does not require him to modify his beliefs or his religious behavior. All of the courts that 

have addressed similar questions reached that same conclusion. See Klingenschmitt, 119 Fed. Cl. at 193

(requiring plaintiff to abstain from offering a prayer at a political event while in uniform did not violate 

the First Amendment or RFRA rights); Banks, 901 F.2d at 1089; Wilson, 139 F. Supp. 3d at 425-26. 

Based on the foregoing, Saltzman is entitled to qualified immunity on Count II. 

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CONCLUSION

For the reasons identified above, and for good cause shown, Defendant General B. Chance 

Saltzman requests that this Honorable Court dismiss the individual capacity claims against him. Oral 

argument is requested. 

 Respectfully submitted,

 BRIAN M. BOYNTON

 Principal Deputy Assistant Attorney General

 Civil Division

 C. SALVATORE D’ALESSIO, JR. 

 Director, Torts Branch

 ANDREA W. MCCARTHY

 Deputy Director, Torts Branch

 

 /s/ Shmuel Bushwick_____ 

 SHMUEL BUSHWICK

 Trial Attorney

 New York Reg. No. 5268271

 New Jersey Reg. No. 073632013

 Torts Branch, Civil Division

 United States Department of Justice

 P.O. Box 7146, Ben Franklin Station

 Washington, D.C. 20044

 Phone: (202) 305-0401

 Fax: (202) 616-4314

 E-mail: Shmuel.bushwick@usdoj.gov

 Counsel for General B. Chance Saltzman

 in his Individual Capacity

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