Case: 23-11038 Document: 111-1 Page: 1 Date Filed: 03/20/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
No. 23-11038 March 20, 2025
____________ Lyle W. Cayce
Clerk
Eric Jackson; Alaric Stone; Michael Marcenelle,
Plaintiffs—Appellants,
versus
Kristi Noem, Secretary, U.S. Department of Homeland Security; Pete
Hegseth, Secretary, U.S. Department of Defense; Linda Fagan,
Commandant of the Coast Guard; Brian Penoyer, Assistant
Commandant for Human Resources of the Coast Guard,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CV-825
______________________________
Before Dennis, Southwick, and Ho, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
This appeal concerns the refusal by some Coast Guard
servicemembers to receive a COVID-19 vaccination. The Plaintiffs assert
the Coast Guard policy requiring the vaccination violated their constitutional
and statutory rights. That policy has since been rescinded. The district court
granted the Coast Guard’s Rule 12(b)(1) motion to dismiss on the basis that
the case was moot. We disagree. REVERSED and REMANDED.
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No. 23-11038
FACTUAL AND PROCEDURAL BACKGROUND
In August 2021, the Secretary of Defense directed all servicemembers
of the Armed Forces under the Department of Defense (“DOD”) to receive
the COVID-19 vaccination. Soon after, the Coast Guard, operating within
the Department of Homeland Security (“DHS”) and outside the purview
of the DOD, required its servicemembers to do the same.
The Plaintiffs, Eric Jackson, Alaric Stone, and Michael Marcenelle,
are Coast Guard servicemembers who objected to the COVID-19
vaccination mandate and were denied religious accommodation requests.
The Plaintiffs continued to refuse the vaccination mandate and were later
reprimanded. To this day, they serve and perform their duties without
COVID-19 vaccinations.
The Plaintiffs filed a putative class action against the Secretary of
Homeland Security, Secretary of Defense, Commandant of the Coast Guard,
and Assistant Commandant of Human Resources for the Coast Guard. The
Plaintiffs alleged the Defendants violated (1) the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq.; (2) the First
Amendment’s Free Exercise Clause, U.S. Const. amend. I; and (3) the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, 701–706. As
relief, the Plaintiffs sought, among other things, a declaratory judgment that
the vaccination mandate violated their rights under RFRA, the First
Amendment, and the APA; and a preliminary and permanent injunction
prohibiting the Defendants from enforcing the mandate.
While the suit was pending, the President signed the James M. Inhofe
National Defense Authorization Act for Fiscal Year 2023, which required the
DOD to rescind its COVID-19 vaccination requirement. Pub. L. No. 117-
263, § 525, 136 Stat. 2395, 2571–72 (2022). The Secretary of Defense
thereafter rescinded the mandate. Although the Coast Guard was not under
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the authority of the DOD, it also rescinded its vaccination mandate and
halted the involuntary administrative separation of servicemembers “that
resulted from violations of the lawful general orders to become vaccinated
against COVID-19.” ALCOAST 012/23 (Jan. 11, 2023).
The district court concluded that the rescission mooted the Plaintiffs’
requests for relief and granted the Defendants’ Federal Rule of Civil
Procedure 12(b)(1) motion to dismiss. The Plaintiffs moved for relief from
final judgment under Rule 60(b), which the district court denied. The
Plaintiffs timely appealed both the dismissal order and denial of their Rule
60(b) motion.
DISCUSSION
“A district court’s Rule 12(b)(1) dismissal is reviewed de novo, as are
legal questions relating to . . . mootness.” Shemwell v. City of McKinney, 63
F.4th 480, 483 (5th Cir. 2023) (italics added) (citation omitted). “All wellpleaded facts are accepted as true and viewed in the light most favorable to
the plaintiff.”
Id. (quotation marks and citation omitted).
Article III of the Constitution restricts federal courts’ jurisdiction to
“cases” and “controversies.” U.S. Const. art. III, § 2. “We are
therefore permitted to adjudicate only live disputes.” Freedom from Religion
Found., Inc. v. Abbott, 58 F.4th 824, 831 (5th Cir. 2023) (quotation marks and
citation omitted). “[A] live controversy must maintain through each stage of
the litigation.”
Id. “[A]ny set of circumstances that eliminates actual
controversy after the commencement of a lawsuit renders that action moot.”
DeOtte v. Nevada,
20 F.4th 1055, 1064 (5th Cir. 2021) (citation omitted).
“One way that happens is when a challenged policy is repealed.” U.S. Navy
SEALs 1-26 v. Biden,
72 F.4th 666, 672 (5th Cir. 2023). “A case is moot only
when it is impossible for a court to grant any effectual relief whatever to the
prevailing party.” DeOtte,
20 F.4th at 1064 (quotation marks and citation
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omitted). “As long as the parties have a concrete interest, however small, in
the outcome of the litigation, the case is not moot.” Chafin v. Chafin, 568
U.S. 165, 172 (2013) (citation omitted).
The Plaintiffs contend this case is not moot because there are ongoing
consequences of the now-rescinded mandate. We examine the basis for that
contention.
The Coast Guard, unlike the military branches currently under DOD
control, has not issued policies affirmatively protecting the Plaintiffs from
discrimination on account of their vaccination status. The Plaintiffs in their
complaint seek “an order restraining and enjoining Defendants . . . from
taking any other illegal adverse action against them based on their
unvaccinated status.”
We considered a similar issue in Navy SEALs 1-26, 72 F.4th 666.
There, after the Navy required its servicemembers to receive the COVID-
19 vaccination, 35 servicemembers sued.
Id. at 670. The Navy later
rescinded the mandate and “promulgated additional policies that eliminated
any remaining distinctions between vaccinated and unvaccinated
personnel.”
Id. at 671. This court identified one policy stating, “COVID-
19 vaccination status shall not be a consideration in assessing individual
service member suitability for deployment or other operational missions.”
Id. (emphasis added) (quoting NAVADMIN 038/23 (Feb. 15, 2023)). We
concluded the plaintiffs’ suit was moot, explaining the Navy’s affirmative
protection of unvaccinated servicemembers was critical to that conclusion.
Id. at 673. We explained:
Critically, the Navy has also ruled out using vaccination status
to deny deployment eligibility, training opportunities, and
assignments. This was the central threat that, Plaintiffs
argued, hung over their heads even post-rescission. The Navy
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has now abjured it. No fewer than three binding policies now
forbid considering vaccination status for such decisions.
Id.
According to the Plaintiffs, the Coast Guard has not “ruled out” use
of vaccination status in a manner similar to what the Navy has done. The
Coast Guard has canceled mandatory discrimination against the
unvaccinated, but the Plaintiffs argue it has done nothing to prevent use of
vaccination status as a factor in making personnel decisions. The Plaintiffs
contend they have been harmed on account of their vaccination status even
after the mandate’s recission. The Plaintiffs seek an injunction against such
actions.
This court considered the Air Force’s vaccine mandate in Crocker v.
Austin, 115 F.4th 660 (5th Cir. 2024). Like the Coast Guard, the Air Force
rescinded its vaccine mandate.
Id. at 663. We held the rescission did not
moot the case because the Air Force had not made changes to its allegedly
“sham religious accommodation process for vaccinations.”
Id. at 667–68.
We concluded “[t]he Air Force’s rescission of the vaccine mandate and
removal of adverse actions does not ensure that it will not discriminate
against Appellants in the future.”
Id. at 668. We allowed the suit to proceed
because the Airmen “plausibly allege[d] an ongoing harm — that they remain
subject to an allegedly unlawful accommodations process.”
Id.
Here, the Plaintiffs presented a declaration from a retired Coast
Guard Vice Admiral who explained that the mandate’s recission will not halt
the harm faced by servicemembers who refused the vaccination. Specifically,
he stated the Coast Guard is a uniquely tight-knit community where service
reputation is important for promotions. For instance, promotion board
members will often advocate for or caution against a candidate based on the
member’s personal knowledge of the candidate. Because the Coast Guard
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continues to consider the vaccination mandate a “lawful order,” the service
reputation of those who refused to follow it is tarnished. The Vice Admiral
explained, however, based on his experience, this harm could be remedied by
a court order declaring the mandate unlawful.
Taking the Plaintiffs’ well-pled facts as true, we conclude it is still
possible for a court to grant effectual relief. See Shemwell, 63 F.4th at 483;
DeOtte,
20 F.4th at 1064. We REVERSE the district court’s decision and
REMAND for further proceedings consistent with this opinion.
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James C. Ho, Circuit Judge, concurring:
This court erred when it dismissed as moot a challenge by a group of
Navy SEALS to the Navy’s mandatory COVID-19 vaccination policy. See
U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666 (5th Cir. 2023);
id. at 677 (Ho,
J., dissenting). So I’m pleased that our court today does not make the same
mistake in this case involving the Coast Guard. I agree that our decision in
Navy SEALs is distinguishable and thus does not compel dismissal here (and
the dissent does not contend otherwise). Accordingly, I concur.
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James L. Dennis, Circuit Judge, dissenting:
In Lewis v. Continental Bank Corporation, 494 U.S. 472, 477–478
(1990), writing for a unanimous court, Justice Scalia set forth the
principles undergirding our mootness analysis:
Under Article III of the Constitution, federal courts may
adjudicate only actual, ongoing cases or controversies. To
invoke the jurisdiction of a federal court, a litigant must have
suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial
decision. Article III denies federal courts the power to decide
questions that cannot affect the rights of litigants in the case
before them, and confines them to resolving real and
substantial controvers[ies] admitting of specific relief through
a decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical
state of facts.
(internal citations omitted).
Applying this standard, the Plaintiffs no longer face any cognizable
injury redressable by this court, rendering their suit moot. The Plaintiffs’
complaint sought both injunctive and declaratory relief, under multiple
statutes, from a singular set of Department of Defense and Coast Guard
policies: the COVID-19 vaccine mandates requiring all service members to
receive a COVID-19 vaccination. 1 Those mandates are no more, granting the
Plaintiffs the “the precise relief the [Plaintiffs] requested in the prayer for
relief” and rendering their “claim[s] for declaratory and injunctive relief . . .
moot.” New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 590 U.S.
336, 339 (2020); see also DeOtte v. State,
20 F.4th 1055, 1064 (5th Cir. 2021)
_____________________
1
All specific relief sought in the Plaintiffs’ Prayer for Relief is premised on the
“Mandates,” which the complaint defines as “[t]he DoD Mandate, Coast Guard Mandate,
and any and all other related vaccine mandate orders[.]”
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(finding that when plaintiffs “received the relief they sought in this litigation,
it becomes impossible for the court to grant any effectual relief whatever to
[the] prevailing party”) (internal quotations omitted).
On the record before us, nothing suggests that the Plaintiffs maintain
any “personal stake in the outcome.” Lewis, 494 U.S. at 478. First, there is
no evidence that the Plaintiffs have suffered any harm after the recission of
the mandate. 2 Second, any possibility of future discrimination in the
promotion process—the other primary argument Plaintiffs present against
mootness—is a “mere potentialit[y]” not redressable by this court. United
States v. Lipscomb,
66 F.4th 604, 608 (5th Cir. 2023) (finding that when
determining a request for declaratory relief is moot, “threatened injuries
cannot be mere potentialities: They must at the least be certainly impending”
(citations omitted)). The same goes for the retired Coast Guard Admiral’s
assertions about future discrimination. There is no evidence that any
Plaintiff’s path to advancement has been barred by the erstwhile mandate or
its collateral effects. These concerns are hypothetical and are belied by the
fact that the Coast Guard has already promoted Plaintiff Marcenelle, and
_____________________
2
Plaintiff Stone’s complaint alleges that “even after the Coast Guard rescinded a
policy barring unvaccinated service members from attending required trainings, his
command still forbade him from participating,” resulting in a lower evaluation score and
preventing him from earning a promotion. But this does nothing to avoid mootness because
those alleged facts occurred prior to the recission of the challenged vaccine mandate. The
Coast Guard issued the specific policy Plaintiff Stone refers to, ALCOAST 157/22, in May
of 2022. ALCOAST 157/22 edited ALCGPSC 104/21, which the Coast Guard rescinded
alongside the vaccine mandate. ALCGPSC 012/23. Plaintiff Stone is now free to complete
the required training, so injunctive relief offers no further remedy. See Spell v. Edwards, 962
F.3d 175, 179 (5th Cir. 2020) (“Once the law is off the books, there is nothing injuring the
plaintiff and, consequently, nothing for the court to do.”).
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recommended Plaintiff Stone for promotion. Thus, the case is moot and
should be dismissed according to our normal practice.
I respectfully dissent.
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