IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

MICHAEL BAZZREA, et al §
Plaintiffs, § Case No. 3:22-cv-00265
§
v. §
§ Temporary Restraining
LLOYD AUSTIN, III, et al.,
§ Order Requested
Defendants. §

PLAINTIFF SABRINA WILDER’S REPLY TO DEFENDANTS’

RESPONSE TO HER MOTION FOR
EMERGENCY TEMPORARY RESTRAINING ORDER

Defendants’ Response indicates a genuine confusion about the nature of

Plaintiff Wilder’s Motion and the inclusion of “factual details related to [named]

Plaintiff Jorden and Plaintiff Wadsworth” as well as additional facts regarding the

discharges of putative plaintiffs. Def. Opp. Brf., at 1. Accepting full responsibility

for the possible confusion, Plaintiffs’ counsel offers a more detailed explanation of

the syllogism underlying Plaintiff Wilder’s Motion – with explanations that explain

why Plaintiff Wilder is entitled to the protection she asks of this Court – and to

hopefully clarify the confusion regarding the nature of Plaintiff’s motion (Infra,

Sec. I).

Unfortunately, Defendant Coast Guard and its counsel are directly

responsible for the need for this Motion. The Response steadfastly refuses to

explain why the Defendant Coast Guard and its counsel are perfectly willing to

pause administrative actions and proceedings against identically-situated Coast

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Guardsmen with identical RFRA/1A claims case in the Northern District of Texas,1

and yet continue to move forward discharging, forcing to submit to separation

processing, etc., against Coast Guardsmen here in the Southern District. More

pointedly, if the Defendant Coast Guard can get an Admiral to submit an affidavit

to attempt to assuage the Court that Plaintiff Wilder is not in danger of being

discharged, then why won’t the Defendants simply provide that assurance for these

Plaintiff Wilder after counsel’s specific request to do so, particularly in light of the

existing Jackson agreement? This would have avoided the necessity for the instant

Motion during the pendency of the Court’s ruling on the Preliminary Injunction

Motion – something that Plaintiffs’ counsel repeatedly asked for and was rebuffed.

ECF 39-4.

I. The Admiral’s Affidavit Doesn’t Rebut Facts of Plaintiff

Discharges.

Nothing in Admiral Barata’s declaration rebuts Plaintiffs’ evidence

demonstrating that both putative and named Plaintiffs are having adverse

administrative actions taken against them on little to no notice – and sometimes

even retroactively.

In addition to the actions against the named Plaintiffs, the

Defendant Coast Guard has also discharged at least 4 putative
plaintiffs from the 125 Intervenors who previously petitioned
the Court. See ECF 28. Alexis Colasurdo, Marc Block, A.J.
Schur, and Brett Schmitt have all been kicked out of the Coast

1Jackson, et al. v. Mayorkas, et al., 4:22-cv-00825 (N.D. Tx), ECF 25, Status
Update. (ECF 39-5)
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 Guard; one Reserve Intervenor Plaintiff, Dan Morrissey, has
been dropped to the Inactive Status List (ISL). Dan Morrissey
was given orders to ISL on Sept. 26, 2022; however, the orders
were deemed “effective” on August 25, 2022, meaning that he
had been pushed to ISL a month before he was notified. His
health insurance was also ended on September 22, 2022, 4 days
before being given notice of his retroactive drop to the ISL.

Pltff Wilder’s TRO Motion, ECF 39, p. 5.

Both female Coast Guard Cadet putative Plaintiffs, Colasurdo and Schur,

were gone from their command – the U.S. Coast Guard Academy – within a few

weeks of being notified, with Cadet Colasurdo finally getting her DD-214 discharge

certificate after repeated inquiries to the Defendant Coast Guard. Id.

The inclusion in Plaintiff Wilder’s Motion of these actions by Defendant

Coast Guard against both putative and named plaintiffs in this case is not intended

to convey that the motion is on behalf of all Plaintiffs – as Defendants’ clearly state

they believe (Opp. Brf. at 1). Rather, Plaintiff Wilder’s claim is that she has waited

as long as seems tenable under the circumstances, given that (1) other members of

this lawsuit, both named and prospective plaintiffs, are having adverse actions

taken against them, up to and including discharges and retroactive drops to the

ISL; and (2) as a comparison for the Court to consider and contrast with Defendant

Coast Guard and its counsel’s actions in the Jackson v. Mayorkas case in N.D.

Texas.

II. Defendants Continue to Advance Untenable Legal

Arguments.

Defendants’ Response continues the tradition of asserting legal arguments

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that have been soundly dismissed in both federal district and circuit courts after

simple reading of the statutes in question: namely, (1) that any Plaintiffs’ “claims

are nonjusticiable,” (Opp. Brf., at 4-5); (2) that “Plaintiffs lack standing” (Id. at 5);

and (3) that Plaintiffs’ “do not have ripe claims” because they have “not completed

separation proceedings.” Id.

First, there is an inherent solipsism (via logical contradiction) in the

governments’ arguments regarding named Plaintiffs. Plaintiff Jorden, the

Defendants claim, has no justiciable claims because he has already been kicked out

of the Coast Guard, but Wilder and Wadsworth – though still on active duty – have

“failed to exhaust their remedies” and their claims are not yet “ripe” because they

“have not completed separation proceedings.” i.e. Been kicked out. The

Defendants’ suggested legal construct is straight out of Joseph Heller’s Catch-22,

the perfect legal system in which you only have non-justiciable claims once you’re

kicked out, but until you get kicked out you haven’t adequately exhausted your

remedies, nor are your claims ripe. While this may seem clever to sophists, it really

serves to reinforce just how little Defendant Coast Guard thinks of the Plaintiffs

and all of the volunteers who serve. Dare to seek judicial enforcement of your

claims and this is what the Defendants want people to know awaits – judicial and

career purgatory.

Second, as far more learned jurists have already noted, “whether RFRA

claims are even subject to an exhaustion requirement is an open question. Nor does

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the Department offer any authority for the proposition that such a requirement

would lack a futility exception.”2 Plaintiffs have RFRA and Constitutional claims,

as well as APA and declaratory judgment claims. Plaintiffs do not need to exhaust

their administrative remedies. But, even if they did, Defendants continue to ignore

that 4/6 of the Defendant DoD is already enjoined for its widespread, systemic

Religious Accommodation practices, of exactly the kind present in this case.3

Speaking of the futility doctrine…

III. Defendants Actions Above Should Be Judged in Light of

Their Purposeful Violation of Plaintiffs’ Rights.

On October 18, 2022, 15 members of the House Committee of Oversight and

Reform sent a letter to the Coast Guard Commandant inquiring about evidence

they had received indicating that someone in the Defendant Coast Guard had

willfully violated the rights of their fellow Coast Guardsmen by creating and using

a digital tool to generate canned responses to Plaintiffs’ Religious Accommodation

2Doster v. Kendall, No. 22-3702 (6th Cir., Sep. 9, 2022), at 8 (internal citation
omitted).
3 See U.S. Navy SEALs 1-26 v. Biden, 2022 WL 34443 (N.D. Tex. Jan. 3, 2022)
(“Navy SEALs 1-26”), stay denied, 27 F.4th 346 (5th Cir. Feb. 28, 2022) (“Navy
SEALs 1-26 Stay Order”); Navy SEAL 1 v. Austin, 2022 WL 534459 (M.D. Fla. Feb.
18, 2022) (“Navy SEAL 1”), stay denied pending appeal No. 22-10645 (11th Cir.
Mar. 30, 2022); Air Force Officer v. Austin, 2022 WL 468799 (M.D. Ga. Feb. 15,
2022) (“Air Force Officer”); Poffenbarger v. Kendall, 2022 WL 594810 (S.D. Oh.
Feb. 28, 2022) (“Poffenbarger”); Doster v. Kendall, 2022 WL 982299 (S.D. Ohio
Mar. 31, 2022) (“Doster”); Colonel Financial Management Officer, et al., v.
Austin, et al., Case No. 8:22-cv-1275 (M.D. Fl.), ECF 229 (Aug. 18,
2022)(“CFMO”).
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Requests. See Ex. 1, Letter from House Committee.4 Most importantly, the

Committee Letter notes:

In anticipation of USCG service members raising concerns

about their applications not being reviewed individually, a
RAAG drop-down menu offered a response option for the
assertion that “the Coast Guard did not provide an
individualized assessment of the Member’s request.” But
ironically, it appears that the USCG afforded almost no one an
individualized assessment. Although a dropdown menu
included an overall “Recommendation for Appeal,” none of the
computer-assisted form language included text that would
justify granting an appeal, indicating that the officials who
designed the tool did not contemplate granting an appeal in the
first place.

Id.

In sum, just as Plaintiffs have alleged all along, the Coast Guard has engaged

in a coordinated and digitally designed and supported campaign to willfully violate

the rights of servicemembers under both RFRA and the establishment clause of the

U.S. Constitution. This is as clear-cut an example of willful discrimination as there

has likely ever been presented showing that Defendant’s never intended to grant a

4 The letter explains that a Coast Guard whistleblower provided copies of

screenshots of the Coast Guard’s “Religious Accommodations Appeal Generator”
(“RAAG”). Upon information and belief, Exhibit 2 is one of a series of screenshots
of the auto-generated responses from the RAAG, using drop down menus with
rebuttals to the Top 25 claims made by service members’ in their religious
accommodation requests. Upon information and belief, Exhibit 3 is a Word
document of canned denial paragraphs by Sector, Ship, or Station, that was
designed – and used by members of the Coast Guard – to deny legitimate and
sincere RARs from Coast Guardsmen by adding those paragraphs alongside the
dropdown rebuttals.
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single Religious Accommodation. The Defendant Coast Guard has been engaged

in a designed and executed campaign of discrimination – all while its counsel

simultaneously claims that mantle of smug righteousness surrounding “lawful”

orders as it denigrates unvaccinated Plaintiffs as a “threat… to… the other service

members” that “severely undermine[s] discipline[.]” Opp. Brf., At 8.

IV. Defendants Least Restrictive Means Test Is a Farce.

Defendants next assertion is that “Plaintiffs are unlikely to succeed on the

merits on their RFRA or First Amendment claims because the Coast Guard has

extraordinarily compelling interests in military readiness and the health and

readiness of its forces—Plaintiffs included—and no less restrictive measure serves

those interests equally well as vaccination. See Defs.’ P.I. Opp. at 21–34.” First,

there are some stolen bases in the broad phrase that “no less restrictive measure

serves those interests equally well as vaccination.” Plaintiffs have already

demonstrated that these shots are not “vaccines” as defined by the DoD’s own

extant regulation, and upon which it relies for the implementation of its Mandate.

The CDC’s definition change after the program’s launch provides corroboration

that government health officials were aware shortly after the launch that the shots

didn’t provide immunity.

In other words, perhaps the assertion is true of some vaccination programs

in the past, but Defendants have done nothing to rebut the myriad of evidence that

shows that this vaccination program is a complete and total failure, built on fraud.
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Janine Small, President of International Developed Markets at Pfizer, the

manufacturer of the most predominant licensed vaccine, testified before an EU

Covid Hearing on October 10, 2022, and admitted “that the Pfizer mRNA vaccine

was never tested or shown before its release, to impact the transmission of the

SARS-NCOV2 virus.”5 This is a stunning admission. As Plaintiffs have pointed out

from their complaint, the FDA granted a license to Pfizer’s mRNA vaccine

“indicated for active immunization to prevent coronavirus disease 2019 (COVID-

19).” See, e.g., Ex. 4, Comirnaty Gray Cap Package insert. This would mean that

there was never any data for the FDA to conclude that the product had any

“efficacy” for its licensed purpose at all.

This doesn’t even begin to address that the President himself has now stated

that “The pandemic is over. We still have a problem with COVID. We’re still doing

a lot of work on it. But the pandemic is over. If you notice, no one’s wearing masks.

Everybody seems to be in pretty good shape…”6 The Defendants continue to

attempt to force an unlicensed, defunct, abandoned vaccine when the CDC has

updated its guidance to say that there should be no difference in treatment between

the vaccinated and unvaccinated and the president says that the pandemic is over.

5 See, e.g., https://medika.life/pfizer-confirms-mrna-vaccine-never-tested-for-

preventing-covid-transmission/ (emphasis added)
6 See, e.g., https://www.npr.org/2022/09/19/1123767437/joe-biden-covid-19-
pandemic-over

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I. CONCLUSION

This Court should grant the relief requested herein and in the Proposed

Order, namely:

(1) Enter a TRO enjoining Defendants from further disciplining or

discharging Plaintiff Wilder until the Court’s decision on the Plaintiffs’

August 16, 2022 Motion for Preliminary Injunction, ECF 17; and

(2) Granting any other appropriate relief to preserve the status quo for

named Plaintiffs.

Dated: October 24, 2022 Respectfully submitted,

/s/ Dale Saran

Dale Saran, Esq.
MA Bar #654781
19744 W 116th Terrace
Olathe, KS 66061
Telephone: 480-466-0369
Email: [email protected]

/s/ Travis Miller____

Texas Bar #24072952
/s/ Brandon Johnson
Brandon Johnson
DC Bar No. 491370
Defending the Republic
2911 Turtle Creek Blvd.,
Suite 300 Dallas, TX 75219
Tel. 214-707-1775
Email: [email protected]

/s/ Simon Peter Serrano

S. Peter Serrano, Esq.
WA Bar #54769
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 5238 Outlet Dr.
Pasco, WA 99301
Telephone: 530-906-9666
Email: [email protected]

Attorneys for the Plaintiffs

CERTIFICATE OF CONFERENCE

This is to certify that counsel for Plaintiffs and Defendants conferred

regarding the foregoing Motion by email between October 4-12, 2022. Defendants

oppose this Motion.

Dated: October 24, 2022

Respectfully Submitted,

/s/ Dale Saran

Dale Saran

CERTIFICATE OF SERVICE

This is to certify that I have on this day e-filed the foregoing Motion using

the CM/ECF system.

Dated: October 24, 2022 Respectfully Submitted,

/s/ Brandon Johnson

Brandon Johnson

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