Galey v. Biden et al

Filing 27

MEMORANDUM RULING re 18 MOTION to Dismiss filed by Raymond S Dingle, Joseph R Biden, Jr, U S Dept of Defense, LLoyd J Austin, III, Yvette K Bourcicot, Christine Wormuth. Signed by Judge James D Cain, Jr on 1/29/2025. (crt,Stewart, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
ROBERT W GALEY JR

CASE NO. 2:22-CV-06203

VERSUS

JUDGE JAMES D. CAIN, JR.

JOSEPH R BIDEN JR ET AL

MAGISTRATE JUDGE LEBLANC

MEMORANDUM RULING
Before the court is a Motion to Dismiss [doc. 18] filed by defendants under Federal
Rule of Civil Procedure 12(b)(1). Plaintiff opposes the motion. Doc. 22.
I.

BACKGROUND
This suit arises from the COVID-19 vaccination mandate implemented by the
United States Army on August 24, 2021. Plaintiff, an active-duty service member in the
U.S. Army, filed suit on December 29, 2022, against various government officials for
violating his statutory and constitutional rights to religious freedom through the vaccine
mandate. Doc. 1. He alleged that the Army had denied his request for exemption from the
mandate based on sincere religious beliefs and instead threatened him with separation and
subjected him to “career-stunting counseling entries, loss of training opportunities, and
removal from his position in leadership as First Sergeant[.]” Id. at 2–3. Accordingly, he
sought the following relief: (1) a declaratory judgment declaring defendants’ vaccination
policies unconstitutional and in violation of the Administrative Procedures Act; (2) a
preliminary and permanent injunction prohibiting the defendants from enforcing their

vaccination policy; (3) an order declaring unlawful and setting aside defendants’
vaccination policies; (4) reasonable attorney fees and costs under 42 U.S.C. § 1988; and
(5) all other further relief to which he might be entitled. Id. at 31–32.
Shortly thereafter, the Army withdrew its vaccine mandate pursuant to a
congressional mandate. Specifically, Congress passed the James M. Inhofe National
Defense Authorization Act (“NDAA”) for Fiscal Year 2023 and required therein that the
Secretary of Defense rescind COVID-19 vaccine mandates for members of the Armed
Forces within 30 days. NDAA, Pub. L. No. 117-263, § 525 (2022). Accordingly, the
Secretary of Defense issued a memorandum on January 10, 2023, formally rescinding his
August 2021 memorandum requiring COVID-19 vaccinations of service members and his
November 2021 memorandum requiring same of members of the National Guard and
Ready Reserve. See doc. 3, att. 1. Plaintiff and defendants had agreed to a stay of this matter
pending “publication of relevant guidance by the Department of the Army.” Doc. 3. On
February 24, 2023, the Secretary of the Army rescinded the Army’s COVID-19 vaccination
policies and directed filing authorities to rescind all General Officer Memoranda of
Reprimand (GOMORs) issued in accordance with such policies. Doc. 12, att. 5, ¶ 7. On
March 1, 2023, the flag on plaintiff’s file and the GOMOR issued in connection with his
vaccine refusal were rescinded. Id. at ¶ 8.
The parties issued a joint status report, with plaintiff maintaining that his challenge
was not moot and requesting that the court reopen the matter. Doc. 5. The court took no
action on that report. A few months later, the United States Court of Appeal for the Fifth
Circuit issued a decision on the vaccine mandate challenge in U.S. Navy SEALS 1-26 v.
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Biden, 72 F.4th 666 (5th Cir. 2023). The court held that plaintiffs’ claims for injunctive
relief were mooted by the Department of Defense’s rescission of the mandate and
remanded the matter to the district court to determine if any other claims were justiciable.
Id. at 675–76. In light of that binding decision, this court ordered the parties to file another
status report addressing whether any controversies remained in this suit. Doc. 7. While
defendants maintained that all of plaintiff’s claims were now moot, plaintiff pointed out
that the district court had allowed plaintiffs to proceed with their broader challenges to the
Navy’s religious accommodation process in U.S. Navy Seals 1–26. Doc. 8. The
undersigned then set deadlines for the defendants to file a motion to dismiss.
Defendants timely filed their motion, arguing that (1) no live controversy remains
between the party in light of the mandate’s rescission; (2) there is no effectual relief
remaining for plaintiff; and (3) no exception to the mootness doctrine would allow plaintiff
to proceed with his challenges to the Army’s religious accommodation process. Doc. 12.
Plaintiff filed an amended complaint in response. Doc. 14. He maintains that all
Department of Defense vaccine requirements violate his constitutional rights as well as the
Administrative Procedures Act. Accordingly, he seeks declaratory relief, vacatur of the
defendants’ vaccination policies, and preliminary and permanent injunctions against the
enforcement of the challenged vaccination policies. He also seeks injunctions requiring:
(1) correction of any personnel records to remove negative proceedings or adverse
information regarding his COVID-19 vaccine refusal; (2) inclusion of language in selection
board convening orders prohibiting the consideration of COVID-19 vaccine refusal when
accommodation was requested; (3) amendment of the religious accommodation policy; (4)
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public postings of statements affirming the value of religious expression and informing
servicemembers of their right to religious accommodations; and (5) a PowerPoint training
informing commanders, supervisors, and other decision-makers in the religious
accommodation process of their obligations in processing those requests. Finally, he
requests reasonable attorney fees and costs under 42 U.S.C. § 1988. Id. at 32–33.
Defendants again moved for dismissal of plaintiff’s claims on the basis of mootness.
They further maintained that, to the extent plaintiff has added claims generally challenging
defendants’ other vaccine requirements or the religious accommodation process, he lacks
standing. Doc. 18. Before plaintiff filed his opposition, however, the Fifth Circuit held in
Crocker v. Austin, 115 F.4th 660 (5th Cir. 2024), that broader challenges by
servicemembers to the U.S. Air Force and Department of Defense’s vaccination policies
were not rendered moot by the rescission of the COVID-19 vaccine mandate. Accordingly,
plaintiff in this matter opposes the motion to dismiss and further argues that he may pursue
his challenge to the alleged ongoing harms he has suffered from his COVID-19 vaccine
refusal. Doc. 22. Defendants maintain that plaintiff’s challenge to the COVID-19 vaccine
is moot because of the lack of any ongoing harm from the defunct mandate. They also
assert that plaintiff lacks standing to challenge vaccination and religious accommodation
policies, an issue not reached by the panel in Crocker.

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II.
LAW & APPLICATION
A. Legal Standards
A motion under Rule 12(b)(1) attacks the court's jurisdiction to hear and decide the
case. FED. R. CIV. P. 12(b)(1). The burden lies with the party seeking to invoke the court's
jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Lack of subject
matter jurisdiction may be found based on: (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. No party has requested an
evidentiary hearing and the court finds that they have had adequate opportunity to present
their arguments based on the administrative record.
B. Application
1. COVID-19 vaccine mandate challenges
Defendants first argue that the rescission renders plaintiff’s challenges to the
COVID-19 vaccine mandate moot, and that no exception applies. A claim may be
dismissed for lack of subject matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case. Home Builders Ass’n, Inc. v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998). Because Article III of the Constitution limits federal
jurisdiction to “cases” and “controversies,” a case must be dismissed as moot “when the
issues presented are no longer live or the parties lack a legally cognizable interest in the
outcome[.]” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980).

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“Generally, any set of circumstances that eliminates actual controversy after the
commencement of a lawsuit renders that action moot.” Ctr. for Indiv. Freedom v.
Carmouche, 449 F.3d 655, 661 (5th Cir. 2006). Additionally, “[m]ootness applies when
intervening circumstances render the court no longer capable of applying meaningful relief
to the plaintiff.” Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 425
(5th Cir. 2013). A defendant claiming mootness must show “that it is absolutely clear that
[that] the allegedly wrongful behavior could not reasonably be expected to recur.” Fontenot
v. McCraw, 777 F.3d 741, 747 (5th Cir. 2015) (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)).
Defendants have shown that the mandate is no longer in effect and that the
consequences of plaintiff’s vaccine refusal have been expunged. Plaintiff suggests, with no
support, that there is a partially redacted record relating to vaccine refusal in his Soldier
Record Brief (“SRB”) that continues to impact his military career. Defendants refute this,
showing that the GOMOR was never placed in his SRB, which acts as his permanent
personnel record, and that there is no adverse COVID-related information or partially or
fully redacted information in his SRB. Doc. 18, att. 3, ¶¶ 4–5; doc. 18, att. 5, ¶ 9. Plaintiff’s
argument appears to be based on a redacted entry in his Enlisted Record Brief (“ERB”), a
legacy document no longer used by the Army. 1 See doc. 18, att. 6, ¶¶ 15–20. Based on

Plaintiff alleges that the SRB and flag were still visible to promotion boards in April 2023, and that he was passed
over because selection board members considering his file at this time “were more likely to rely on their common
sense that the presence of prior flags on an individual’s record indicates serious problems.” Doc. 22, p. 8 n. 1. He
further alleges that, once passed over, he was more likely to be passed over again. Id. According to the declaration
provided by the government, however, the portion of legacy files visible at this time “[did] not include information
regarding past flags or assignment considerations, because those items are always redacted and not viewed by the
Selection Boards.” Doc. 18, att. 6, ¶ 18. Further, the Army’s Rescission Memo expressly provided that vaccination
1

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system audit logs, defendants provide a declaration stating that there is no evidence that
plaintiff’s ERB was viewed by any selection or promotion board. Id. at ¶ 19. This legacy
information cannot be viewed by any future board. Id. at ¶ 20. Accordingly, the government
has provided sufficient supporting evidence to contradict the jurisdictional allegations
made in the complaint and the court credits this showing over plaintiff’s unsupported
assertions.
A challenge to a government policy may be mooted by the government’s repeal of
that policy. Freedom from Religion Fdn., Inc. v. Abbott, 58 F.4th 824, 832 (5th Cir. 2023);
Spell v. Edwards, 962 F.3d 175, 179 (5th Cir. 2020). As the Fifth Circuit has already held,
plaintiff’s claims for injunctive relief relating to the COVID-19 vaccine mandate are now
moot. U.S. Navy SEALS 1-26, 72 F.4th at 675–76. Likewise, declaratory relief is
unavailable because the COVID-19 vaccine mandate has been rescinded and there is no
indication it will be reimposed. “The ‘case or controversy’ requirement of Article III . . .
prohibits federal courts from considering questions ‘that cannot affect the rights of litigants
in the case before them.’” C&H Nationwide, Inc. v. Norwest Bk. Tex. NA, 208 F.3d 490,
493 (5th Cir. 2020) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). “Once the
law is off the books, there is nothing injuring the plaintiff and, consequently, nothing for
the court to do.” Spell, 962 F.3d at 179 (agreeing there was no relief available on challenges
to expired COVID-19 lockdown orders). Additionally, the Army eliminated any cause of
action for past or prospective injury when it implemented the associated guidance by

status could not be considered for future assignments and promotions. Doc. 5, att. 2. Accordingly, plaintiff fails to
show any link between his vaccination refusal and any alleged ongoing harms to his career.

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rescinding all adverse action relating to plaintiff’s vaccine refusal from his file. Accord
Schelske v. Austin, 2023 WL 5986462, at *9 (N.D. Tex. Sep. 14, 2023); see also Bazzrea
v. Mayorkas, 677 F.Supp.3d 651, 660–61 (S.D. Tex. 2023) (vaccine mandate claims
against Coast Guard mooted by rescission and implementation of guidance, which erased
disciplinary consequences); Jackson v. Mayorkas, 2023 WL 5311482, at *3–*4 (N.D. Tex.
Aug. 17, 2023) (same).
2. Broader vaccine policy/religious accommodations challenges
To the extent plaintiff would continue with broader challenges to the Army’s
vaccine policies and religious accommodations, the Fifth Circuit determine in Crocker that
these are not rendered moot by the rescission. But the panel did not address standing in that
matter as to the broader challenges to Defense policies. Instead, standing was only raised
in the context of the plaintiff who was no longer an active servicemember. The court found
that he could pursue challenges to the COVID-19 mandate because he alleged an injury
(separation from the Air Force) resulting from his vaccine refusal. Crocker, 115 F.4th at
664–65. As to the still-serving plaintiffs, it found that their broader challenges to Air Force
vaccination policy were not moot because the rescission “does not ensure that [the Air
Force] will not discriminate against Appellants in the future.” Id. at 667. Yet it did not
discuss the imminence or likelihood of such discrimination.
Here, plaintiff has not identified any vaccine for which he is currently seeking an
exemption. And in over two years since he filed this suit, he has not made any additional
religious accommodation requests or requests for exemptions from immunization. Doc. 18,
att. 2. Standing requires an injury that is “concrete, particularized, and actual or imminent;
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fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v.
Amnesty Intern. USA, 568 U.S. 398, 409 (2013) (internal quotations omitted). The
threatened injury must be “certainly impending to constitute injury in fact;” and
“[a]llegations of possible future injury” will not suffice. Id. (emphasis in original); see also
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990); Friends of the Earth, 528 U.S. at 190;
Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979). Thus, “there are circumstances in
which the prospect that a defendant will engage in (or resume) harmful conduct may be too
speculative to support standing, but not too speculative to overcome mootness.” 2 Friends
of the Earth, 528 U.S. at 190.
This appears to be one such case. Plaintiff was ultimately not compelled to take the
COVID-19 vaccination and is shielded from any consequences in his career for this refusal.
His contention that he may wish to avoid some future vaccine is insufficient to establish an
injury. If this happens, he may challenge the accommodation process he then experiences.
As of now, however, there is currently no injury or threatened injury for the court to redress
for this individual. Accordingly, he lacks standing to proceed with his broader challenges
to the Army and Department of Defense’s vaccine and religious accommodation policies.

2
The Court offered the example of City of Los Angeles v. Lyons, 461 U.S. 95 (1983), in which it determined that
plaintiff lacked initial standing to seek an injunction against the LAPD’s chokehold policy because he could not
“credibly allege a realistic threat arising from the policy,” but that a citywide moratorium on chokeholds would not
have mooted an otherwise valid claim because the moratorium was not permanent. Friends of the Earth, 528 U.S. at
190.

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III.
CONCLUSION
For the reasons stated above, the Motion to Dismiss [doc 18] will be GRANTED
and plaintiff’s claims will be DISMISSED WITHOUT PREJUDICE. 3
THUS DONE AND SIGNED in Chambers on the 29th day of January, 2025.
__________________________________
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE

Ordinarily, dismissals for both mootness and lack of standing must be without prejudice. Wilderness Soc’ty v.
Salazar, 603 F.Supp.2d 52, 72 (D.D.C. 2009) (citing Payne v. Panama Canal Co., 607 F.2d 155, 158 (5th Cir. 1979));
Green Valley Special Utility Dist. v. City of Schertz, Tex., 969 F.3d 460, 468 (5th Cir. 2020).

3

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