HARKINS v. United States

In the United States Court of Federal Claims

FOR PUBLICATION

No. 23-1238C

(Filed: October 14, 2025)

)

CHRISTOPHER D. HARKINS, et al., )

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Plaintiffs, )

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v. )

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UNITED STATES,

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Defendant. )

)

Dale F. Saran, Dale F. Saran, LLC, Olathe, Kansas, for plaintiffs. With him on the

briefs were Barry P. Steinberg, Kutak Rock LLP, Washington, DC; and J. Andrew

Meyer and Brandon Johnson, St. Petersburg, FL.

Kyle S. Beckrich, Trial Attorney, Commercial Litigation Branch, Civil Division,

U.S. Department of Justice, Washington, DC, for defendant. With him on the briefs

were Brett A. Shumate, Assistant Attorney General, and Patricia M. McCarthy,

Director, and William J. Grimaldi, Assistant Director, Commercial Litigation

Branch, Civil Division, U.S. Department of Justice, Washington, DC. Brian Judge,

Chief, Office of Claims and Litigation, U.S. Coast Guard, Washington, DC,

Of Counsel.

OPINION AND ORDER

BONILLA, Judge.

Through this action, six current and former United States Coast Guardsmen

challenge their separations and their denials of service-related protections and

benefits for reportedly failing or refusing to comply with the military’s now-rescinded

COVID-19 vaccine mandate. Plaintiffs are among the 1,351 Coast Guardsmen whose

religious accommodation requests were denied by the service. On January 23, 2025,

this Court resolved several critical issues in this case, including: the import of the

Emergency Use Product Act, 10 U.S.C. § 1107a; the implications of the Religious

Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb-1; the effect of the

James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L.

No. 117-263, § 525, 136 Stat. 2395, 2571–72 (2022); the conversions of noticed

disciplinary discharges for alleged violations of the Uniform Code of Military Justice

(UCMJ) to administrative separations for the convenience of the government under

10 U.S.C. § 1169(3); the consequences of voluntary separation in lieu of disciplinary

or administrative separation; and the denials of specified procedural rights and

benefits associated with their separations (e.g., administrative discharge boards,

reenlistment boards, counsel, pre-separation medical treatment, and separation pay).

Harkins v. United States, 174 Fed. Cl. 592 (2025).

Four days after the Court addressed these issues, the President issued

Executive Order No. 14184, titled Reinstating Service Members Discharged Under the

Military’s COVID-19 Vaccination Mandate. Under Section 2, the President directed

the United States Secretaries of Defense and Homeland Security to:

(a) make reinstatement available to all members of the military

(active and reserve) who were discharged solely for refusal to receive the

COVID-19 vaccine and who request to be reinstated;

(b) enable those service members reinstated under this section to revert

to their former rank and receive full back pay, benefits, bonus payments,

or compensation; and

(c) allow any service members who provide a written and sworn

attestation that they voluntarily left the service or allowed their service

to lapse according to appropriate procedures, rather than be vaccinated

under the vaccine mandate, to return to service with no impact on their

service status, rank, or pay.

90 Fed. Reg. 8761 (Jan. 27, 2025). The government moved to stay implementation

of the Court’s January 23, 2025 decision pending the military’s execution of the

President’s directive. Although the Executive Order and the Court’s decision overlap

in certain respects, the Venn diagram is not depicted by concentric circles. Critical

distinctions include the Executive Order’s broad application to Coast Guardsmen who

voluntarily separated from military service as well as reservists, and the requirement

that affected service members reenlist and return to active duty to be entitled to

relief. 1 The Court accordingly denied the government’s motion.

Instead, the Court remanded this matter to the Coast Guard for further

proceedings consistent with the Court’s January 23, 2025 decision pursuant to

Rule 52.2(a) of the Rules of the United States Court of Federal Claims (RCFC).

By agreement, the Coast Guard sent tailored notices to all 1,351 current and former

Coast Guardsmen potentially impacted by the Court’s decision, consisting of:

274 Coast Guardsmen who voluntarily or involuntarily separated from the service

1 As noted in this Court’s January 23, 2025 decision, the named plaintiffs originally included two

former Coast Guard Reservists. Their claims were voluntarily dismissed because “they were not

participating in full-time active duties at the time of their alleged unlawful separations and, thus, did

not satisfy the jurisdictional requirements of the Military Pay Act, 37 U.S.C. §§ 204(a)(2) & 206(a)(1).”

Harkins, 174 Fed. Cl. at 594 n.1 (citing Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999)).

2

following the denial of their religious accommodation requests, 173 Coast Guardsmen

who received an administrative exemption or waiver in lieu of a religious

accommodation, and 904 Coast Guardsmen who received no exemption or

accommodation but remained on active duty. To each notice, the Coast Guard

appended an administrative claim form drafted jointly by the parties and a copy of

the Court’s January 23, 2025 decision. The notices invited recipients to submit an

administrative claim for a records correction and consequent administrative and

monetary relief. 2, 3 As provided in RCFC 52.2(b)(1)(A), the Court provided detailed

instructions for the Coast Guard to follow when evaluating individual claims. The

Court directed the Coast Guard to complete the remand proceedings within

six months in accordance with RCFC 52.2(b)(1)(B), noting that the September 9, 2025

deadline could be extended for good cause under RCFC 52.2(c)(1).

I. Remand Extension

On September 12, 2025, the government filed its most recent status report in

accordance with RCFC 52.2(b)(1)(D). Included in the government’s filing is a request

to extend the remand period by an additional fifty-nine days, until November 7, 2025.

ECF 79. Plaintiffs registered their general opposition to the request but did not file

a formal response explaining why. For good cause shown, defendant’s motion to

extend the remand period is granted. In light of the current government shutdown—

caused by the October 1, 2025 lapse in federal appropriations—the requested

deadline is extended an additional thirty-one days, until December 8, 2025.

To date, the Coast Guard has preliminarily decided to award constructive

service and consequent benefits to plaintiffs Christopher D. Harkins and Matthew W.

Powers. Mr. Harkins is expected to receive one year of constructive service from his

December 1, 2022 separation date, presumably making him eligible for a previously

approved—and forfeited—twenty-year retirement. Mr. Powers, in turn, is expected

to receive over seven months of constructive service, from his November 14, 2022

separation date to his June 20, 2023 return to the Coast Guard as a civilian employee.

The Coast Guard also submitted a group application to the Coast Guard Board for

Correction of Military Records (BCMR) on behalf of fifty-nine service members who

have returned to military service. This group includes plaintiffs Chief Petty Officer

Shane R. Nolan and recently promoted Chief Petty Officer Mark A. Byrd, as well as

thirteen of the forty-four Coast Guardsmen who submitted an administrative claim

2 The Coast Guard served the notices by electronic mail and certified United States mail to each

current and former Coast Guardsman’s last known email and physical mailing address. To limit

confusion, the Coast Guard endeavored to coordinate messaging regarding both the Court’s decision

and the President’s Executive Order.

3 In addition to the correction of military records, potential relief includes, but is not limited to:

retroactive reinstatement and related benefits based on constructive service, retroactive promotion or

promotion consideration, specialty pay, administrative separation boards, reenlistment boards,

separation pay, medical treatment (i.e., actual or expense reimbursement), and repayment of forfeited

reenlistment bonuses.

3

in response to the notices discussed above. Presumably, the Coast Guard is proposing

that the fifty-nine Coast Guardsmen “receive full back pay, benefits, bonus payments,

or compensation,” consistent with the Executive Order. 4 Additionally, the Coast

Guard’s Return2Service Team is reportedly in discussions with thirty-two more

former service members regarding their possible reenlistment and recall to active

duty and consequent back pay and related benefits.

II. Class Certification

Against this backdrop, plaintiffs seek to certify a class and two subclasses of

current and former Coast Guardsmen pursuant to RCFC 23. The proposed class

would consist of:

[The six named plaintiffs] and all current and former Coast Guard

members who were discharged, separated, constructively discharged,

involuntarily transferred to inactive status, and/or denied pay or

benefits due to their unvaccinated status with respect to Defendant’s

COVID-19 Vaccine Mandate, and as a result lost pay, benefits,

retirement points, training, promotion, or any other emoluments to

which they are entitled . . . .

ECF 69 at 1. The first proposed subclass—labeled the “exemption requested

subclass”—would consist of all putative class members who, before separating from

the Coast Guard due to their unvaccinated status, “submitted a Religious

Accommodation Request, a request for an administrative exemption, or a request for

a medical exemption to the requirements of the COVID-19 Vaccine Mandate . . . .”

Id. at 1–2. The second proposed subclass—identified as the “voluntary separation

subclass”—would consist of all putative class members “who ‘voluntarily’ separated

from [military] service rather than comply with the COVID-19 Vaccine

Mandate . . . .” Id. at 2. For the following reasons, plaintiffs’ motion is denied.

A. Mootness

The Court first addresses the propriety of including Coast Guardsmen who

voluntarily separated from military service in the putative class and subclasses. 5 As

the Court explained in its January 23, 2025 opinion with respect to named plaintiffs

Aaron Gutierrez and Christopher S. Musgrave, “in electing to voluntarily separate

from the military rather than face a disciplinary discharge or administrative

4 The Coast Guard reports that the service continues to consider the administrative claims submitted

by fifteen former Coast Guardsmen. The Court surmises that some or all of the remaining sixteen

administrative claims were submitted by service members who voluntarily separated from the Coast

Guard and are thus not entitled to relief under this Court’s January 23, 2025 decision.

5 As defined by plaintiffs, voluntarily separated Coast Guardsmen comprise the entirety of the

voluntary separation subclass and are included in the putative class and the exemption requested

subclass.

4

separation, plaintiffs . . . forfeited their rights to seek legal redress in this Court.”

Harkins, 174 Fed. Cl. at 609 (“[I]f a plaintiff cannot establish that he is currently on

active duty, he must assert and ultimately establish that his separation was

involuntary in order to fit within the scope of, and take advantage of, the money-

mandating status of [37 U.S.C.] § 204, or else his claim falls for failure to state a claim

upon which relief can be granted.” (citing Metz v. United States, 466 F.3d 991, 998

(Fed. Cir. 2006))). Since Messrs. Gutierrez and Musgrave do not have cognizable

claims, any request to certify a class or subclass of or including similarly situated

service members is moot as to those claimants. 6 Charleston Area Med. Ctr., Inc. v.

United States, 940 F.3d 1362, 1372 (Fed. Cir. 2019) (citing Greenlee Cnty. v. United

States, 487 F.3d 871, 880 (Fed. Cir. 2007) (collecting cases)). Accordingly, plaintiffs’

motion for class certification is moot insofar as it seeks certification of the voluntary

separation subclass and would include voluntarily separated Coast Guardsmen in

both the putative class and the exemption requested subclass.

B. Rule 23

Class actions are limited exceptions to the axiom that litigation is prosecuted

“by and on behalf of” the named parties to a lawsuit. Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01

(1979)). Under RCFC 23(a), the prerequisites for class certification are:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the

interests of the class.

RCFC 23(a). To maintain a class action, subsection (b) further requires showing that

6 The Court’s March 13, 2025 remand order directed the Coast Guard to “maintain a file of any

administrative claims submitted [by voluntarily separated service members] and include the data in

[the post-remand] final report . . . .” ECF 57 at 4. The stated purpose: “to facilitate their participation

in any post-remand class certification or joinder proceedings as well as any appeal to the United States

Court of Appeals for the Federal Circuit challenging this Court’s waiver ruling . . . .” Id. Notice to all

274 Coast Guardsmen who separated from military service—either voluntarily or involuntarily—

following the denial of their religious accommodation requests ensured the review of any challenged

basis for separation. To this end, the Court invited, but explicitly did not require, the Coast Guard to

“review and adjudicate any claims of current or former Coast Guardsman found to have voluntarily

separated from the service rather than face a disciplinary discharge or administrative separation.” Id.

Absent a reversal of this Court’s waiver ruling, there is no basis in law or fact to certify a subclass of

claimants not entitled to relief or to include such claimants in the proposed class or other subclass.

5

the United States has acted or refused to act on grounds generally

applicable to the class[,] . . . that the questions of law or fact common to

class members predominate over any questions affecting only individual

members, and that a class action is superior to other available methods

for fairly and efficiently adjudicating the controversy.

RCFC 23(b)(2)–(3). Factors to be considered in resolving the “superior[ity]” portion

of that analysis include: “the class members’ interests in individually controlling the

prosecution of separate actions; . . . the extent and nature of any litigation concerning

the controversy already begun by class members; . . . and . . . the likely difficulties in

managing a class action.” RCFC 23(b)(3)(A)–(D).

Despite the similarities between RCFC 23 and Federal Rule of Civil

Procedure 23, the bar for class certification is substantially higher in this Court than

in federal district court. All seven requirements enumerated in RCFC 23 are written

in the conjunctive, whereas the requirements to maintain a class action under

Federal Rule of Civil Procedure 23(b) are written in the disjunctive. Compare

RCFC 23(a)–(b) (requirements linked by “and”), with FED. R. CIV. P. 23(b)

(requirements linked by “or”); see Oztimurlenk v. United States, 162 Fed. Cl. 658, 672

(2022). Consequently, failure to satisfy any prong in this Court is fatal. Arnhold v.

United States, 166 Fed. Cl. 499, 505 (2023) (citing Horvath v. United States,

149 Fed. Cl. 735, 745 (2020)). To prevail, plaintiffs must prove by preponderant

evidence that each requirement is met: numerosity, commonality, typicality,

adequacy, general applicability, predominance, and superiority. Bauer v. United

States, 176 Fed. Cl. 240, 247 (2025) (citing Oztimurlenk, 162 Fed. Cl. at 673 (quoting

Wal-Mart, 564 U.S. 350)). “In determining whether plaintiffs have carried their

burden, the Court must conduct a ‘rigorous analysis’ and thus may be required to

‘probe behind the pleadings’ to assess plaintiffs’ showing.” Id. (first quoting

Wal-Mart, 564 U.S. at 350–51; and then citing Oztimurlenk, 162 Fed. Cl. at 673).

1. Numerosity

The number of putative plaintiffs in a proposed class is the logical starting

point in evaluating whether the numerosity requirement is met. See Common

Ground Healthcare Coop. v. United States, 137 Fed. Cl. 630, 638 (2018) (first citing

King v. United States, 84 Fed. Cl. 120, 124 (2008); and then citing Fauvergue v.

United States, 86 Fed. Cl. 82, 96 (2009), rev’d and remanded on other grounds

sub nom., Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010)). Yet RCFC 23

neither identifies nor suggests a specific number of class members as sufficiently

numerous. 7 Indeed, this Court has found a class of fewer than two dozen potential

7 Efforts to adopt a presumptive metric to resolve this issue have been met with mixed reviews.

Contrast King, 84 Fed. Cl. at 124 (“While not outcome determinative, the number of potential class

members is persuasive when determining numerosity: generally, if there are more than forty potential

class members, th[e] [numerosity] prong has been met.” (citing Stewart v. Abraham, 275 F.3d 220,

226–27 (3d Cir. 2001))), with Bell v. United States, 123 Fed. Cl. 390, 397 (2015) (citing Jaynes v. United

6

plaintiffs sufficiently numerous but a putative class exceeding 1,200 members

insufficiently numerous. See Bauer, 176 Fed. Cl. at 249 (collecting cases).

In any event, the Court has no occasion to evaluate whether a specific number

of class members is sufficiently numerous in this case. While plaintiffs need not

identify an exact number of potential class members, they must at least identify a

“legally definable class that can be ascertained through reasonable effort.” Jones v.

United States, 118 Fed. Cl. 728, 733 n.2 (2014) (first citing Simer v. Rios, 661 F.2d

655, 669–71 (7th Cir.1981); and then citing Forman v. Data Transfer, Inc., 164 F.R.D.

400, 403 (E.D.Pa.1995)), quoted in Oztimurlenk v. United States, 162 Fed. Cl. 658,

675 (2022). Here, plaintiffs seek to include all current and former Coast Guardsmen

whose military careers and related pay and benefits may have been impacted in any

way by the now-rescinded COVID-19 vaccine mandate, regardless of whether they

submitted a religious accommodation request and, if they did, regardless of whether

their religious accommodation request was addressed by the Coast Guard. Even the

proposed exemption requested subclass would include current and former

Coast Guardsmen who sought administrative or medical exemptions or waivers—

as opposed to religious accommodation requests—again, regardless of whether their

requests were ever adjudicated. 8 Both groups are amorphous, and plaintiffs have not

offered estimates of their sizes. By painting with exceptionally broad strokes in an

effort to capture every conceivable claimant—whatever their circumstances relative

to the COVID-19 vaccine mandate—plaintiffs frustrate any meaningful effort to

numerically capture the true universe of a cognizable class membership roster.

A more reasonably defined putative class might consist of all Coast Guardsmen

involuntarily separated following the denial of their religious accommodation

requests. Cf., e.g., Doster v. Kendall, 342 F.D.R. 117 (S.D. Ohio) (certifying class of

United States Air Force members who submitted religious accommodation requests

in response to the COVID-19 vaccine mandate), modified, No. 22-84, 2022 WL

2974733 (S.D. Ohio July 27, 2022), aff’d, 54 F.4th 398 (6th Cir. 2022), reh’g and reh’g

en banc denied, 65 F.4th 792 (6th Cir.), cert. granted and vacated as moot, 144 S. Ct.

481 (2023). This putative class would be a subgroup of the 274 current and former

service members identified by the government as having separated from the Coast

Guard—either voluntarily or involuntarily—following the denial of their religious

accommodation requests. But even this tailored roster likely would not satisfy the

numerosity requirement, as the linchpin of this inquiry is the impracticality of

joinder. RCFC 23(a)(1). The Court doubts that joinder of everyone in this subgroup

would be impracticable.

States, 69 Fed. Cl. 450, 454 (2006)) (declining to adopt presumptive approach to numerosity).

Considering the breadth of cases falling within this Court’s jurisdiction, any presumptive measure of

numerosity would be as impractical as it would be arbitrary.

8 Given the mootness ruling, supra, the Court need not address the size of the proposed voluntary

separation subclass.

7

While a more lenient numerosity analysis might be warranted where the

claims at issue are so small that the cost of litigation outweighs the potential relief,

that is not the situation here. Case in point: Mr. Harkins is now poised to recover

one year of constructive service back pay and related benefits, as well as a previously

forfeited twenty-year regular retirement. Mr. Harkins is not an outlier. Mr. Powers

is slated to receive seven months of constructive service back pay and related benefits

between his separation and his reemployment as a civilian employee. Chief Petty

Officers Nolan and Byrd are similarly poised to recover months of constructive service

back pay and related benefits between the dates of their respective separations and

reenlistments. On this issue, plaintiffs’ complaint posits: “There are at least 1,000[]

Class Members, the majority of which have a claim in the range of $10,000 to

$100,000.” ECF 17 at 54. Such potential recoveries belie any argument that

individual claims are prohibitively costly to pursue. See Lohmann v. United States,

154 Fed. Cl. 355, 372 (2021) (“Plaintiffs contend that some proposed class members

could have very large claims that amount to more than $50,000 or even $100,000—

an amount that does not strike this Court as ‘too small to justify being brought

individually.’” (quoting Curry v. United States, 81 Fed. Cl. 328, 338 (2008))).

This Court need not further engage in the academic exercise of postulating

the potential size of a cognizable class for purposes of determining whether the

numerosity requirement is satisfied. Plaintiffs bear that responsibility. In any case,

the Court is not convinced that joinder is impracticable. As explained supra, the

Coast Guard attempted to notify and invite all 1,351 current and former Coast

Guardsmen potentially impacted by this Court’s January 23, 2025 decision to file an

administrative claim for relief. Any individual dissatisfied with the assessment of

their claim, including any relief awarded, may appeal to this Court at the conclusion

of the remand proceedings. Considering the uniqueness of each current and former

service member’s potential claims—as exhibited by the facts presented by the six

named plaintiffs—permissive joinder appears to be the more prudent approach. At

bottom, resolution of the numerosity issue is unnecessary to decide plaintiffs’ motion

for class certification. Instead, the Court turns to the remaining requirements under

RCFC 23, taking into account the class and subclass memberships plaintiffs propose.

2. Commonality

To qualify as a common question of law or fact under RCFC 23(a)(2), a question

must be “central to the validity of each one of the claims” and “of such a nature that

it is capable of classwide resolution.” Wal-Mart, 564 U.S. at 350. That is, a common

question of law or fact is a question whose resolution determines, at least in part, the

rights of every member of a putative class. If a question of law or fact is relevant to

most—but not all—members of a proposed class, the commonality requirement is not

met. See, e.g., Bauer, 176 Fed. Cl. at 254 (question applicable to “vast majority” but

not all putative class members did not satisfy commonality requirement).

8

Plaintiffs assert that three questions the Court answered in its January 23,

2025 decision are “common” within the meaning of RCFC 23(a)(2). 9 First, whether

the Coast Guard erred in conflating Emergency Use Authorization (EUA) vaccines

with U.S. Food and Drug Administration (FDA)-approved vaccines in seeking to

sidestep the informed consent requirement codified at 10 U.S.C. § 1107a(a)(1).

Harkins, 174 Fed. Cl. at 601–06 (conflation of EUA vaccines with FDA-approved

vaccines legally improper). Second, whether the Coast Guard’s practice of summarily

denying religious accommodation requests violated the strict scrutiny standard

applicable to governmental restrictions on individuals’ free exercise rights under

RFRA. Harkins, 174 Fed. Cl. at 606–09 (rote denials of religious accommodation

requests do not pass constitutional or statutory muster). Third, whether the Coast

Guard’s decision to administratively separate service members for the convenience of

the government (i.e., unavailability for worldwide deployment due to immunization

status)—rather than prosecute violations of Articles 90 and 92(2) of the UCMJ for

refusing or failing to comply with the COVID-19 vaccine mandate—“falls with the

general authority ‘otherwise provided by law’ sanctioned in 10 U.S.C. § 1169(3).”

Harkins, 174 Fed. Cl. at 606 (Coast Guard acted within statutory authority when

separating service members for convenience of government due to unvaccinated

status and consequent unavailability for worldwide deployment (citing Tippins v.

United States, 93 F.4th 1370, 1377–78 (Fed. Cir. 2024))).

None of these questions apply uniformly across the proposed class or

subclasses, as RCFC 23(a)(2) requires. Mr. Powers, for example, was reportedly

offered an FDA-approved vaccine at a designated military medical clinic in

June 2022, thereby obviating the need to resolve the § 1107a(a)(1) informed consent

issue in his case. Harkins, 174 Fed. Cl. at 600, 602 n.25. As defined, plaintiffs’

proposed class and subclasses would include Coast Guardsmen who, like Mr. Powers,

had access to FDA-approved vaccines and for whom the § 1107a(a)(1) issue is not

implicated. Plaintiffs’ proposed class and subclasses would also include Coast

Guardsmen who did not submit a religious accommodation request and for whom

RFRA is not in issue. 10 The proposed class and subclasses would further include

Coast Guardsmen who were not separated for the convenience of the government and

to whom the § 1169(3) issue does not apply. Put simply, none of the three questions

plaintiffs proffer as “common” qualify as such under RCFC 23(a)(2).

9 Plaintiffs’ general inference that there are common questions inherent in the Court’s January 23,

2025 decision beyond the three discussed in their motion for class certification is insufficient to meet

their burden on this issue. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d

375, 398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief, and for those

purposes ‘a passing reference to an issue . . . will not suffice to bring that issue before this court.’” (first

quoting Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991); and then citing Int’l Raw

Materials v. Stauffer Chem. Co., 978 F.2d 1318, 1327 n.11 (3d Cir. 1992))), quoted in SmithKline

Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006).

10 The putative class and voluntary separation subclass make no reference to the submission of a

religious accommodation request. The exemption requested subclass, in turn, includes Coast

Guardsmen who filed requests for administrative and medical exemptions and waivers, and further

does not require a Coast Guard denial.

9

By overstating the reach of the Court’s rulings, plaintiffs elide material

differences between members of the putative class and subclasses. The consequence:

there are current and former Coast Guardsmen in the defined putative class and

subclasses whose rights are unaffected by the questions plaintiffs maintain are

“common.” Plaintiffs have thus failed to carry their burden to demonstrate

commonality for the proposed class and subclasses.

3. Typicality

Typicality requires that the claims of the named plaintiffs and those of absent

class members “stem from a single event or unitary course of conduct, or . . . are based

on the same legal or remedial theory.” Bauer, 176 Fed. Cl. at 254 (quoting Geneva

Rock Prods., Inc. v. United States, 100 Fed. Cl. 778, 790 (2011)). This requirement

“assures that the claims of the named plaintiffs are similar enough to the claims of

the class so that the representative[s] will adequately represent them.” 7A WRIGHT

& MILLER’S FEDERAL PRACTICE & PROCEDURE § 1764 (4th ed. 2025) (discussing

typicality requirement of FED. R. CIV. P. 23(a)(3)). Although the burden of proof is

“not high,” Bauer, 176 Fed. Cl. at 255 (quoting Brown v. United States, 126 Fed. Cl.

571, 585 (2016)), typicality is not shown where, as here, “the legal or factual position

of the representatives is markedly different from that of other members of the

class . . . .” WRIGHT & MILLER, supra.

The narrow factual and legal circumstances presented by the named plaintiffs

are incongruous with the broad class and subclasses they seek to represent. Each

named plaintiff submitted a religious accommodation request from the COVID-19

vaccine mandate. Following the formal denials of those requests, each named

plaintiff administratively separated from the Coast Guard, either voluntarily or

involuntarily. In contradistinction—and as detailed above—the universe of putative

class members includes Coast Guardsmen who did not submit religious

accommodation requests, whose religious accommodation requests were not

decisioned by the Coast Guard, and who remained on active duty. The exemption

requested subclass suffers from similar overreach, seeking to include class members,

for example, who requested medical and administrative exemptions and waivers

rather than religious accommodations, whose medical and administrative

exemptions and waivers were granted or not decisioned, and who remained on active

duty. The voluntary separation subclass is also too broad. Like the putative class,

this proposed subclass definitionally includes former Coast Guardsmen who either

did not submit religious accommodation requests or whose religious accommodation

requests, if submitted, were not decisioned. The named plaintiffs therefore fail to

demonstrate that their claims are typical of the claims of the putative class members

they purport to represent.

4. Adequacy

The adequacy prong requires two inquiries: (1) whether counsel possess the

necessary subject matter expertise and experience to competently serve as class

10

counsel, and (2) whether the class members’ interests are aligned in the litigation.

Bauer, 176 Fed. Cl. at 255; Horvath, 149 Fed. Cl. at 750 (citations omitted). There is

no doubt as to the first, but there are serious questions as to the second. On the issue

of competence, counsel have demonstrated their expertise throughout this litigation,

and their track record handling similar cases—including class actions—is clearly

sufficient. 11 But given plaintiffs’ failure to demonstrate commonality or typicality,

the Court is not persuaded that the putative class members’ interests are

satisfactorily aligned. See, e.g., Bauer, 176 Fed. Cl. a 255 (“Because Plaintiffs have

not made a factual showing of commonality or typicality, I cannot find that their

interests align with the rest of the class.”).

5. General Applicability

Next, plaintiffs must demonstrate that “the United States has acted or refused

to act on grounds generally applicable to the class . . . .” RCFC 23(b)(2). For many of

the same reasons that the commonality and typicality requirements are not met, the

Court is skeptical that the United States acted on grounds generally applicable to the

putative class and subclasses. To the contrary, the record reflects that the Coast

Guard denied certain religious accommodation requests, failed to decision others, and

granted select administrative and medical waivers. Further, plaintiffs have not

identified any evidence concerning the Coast Guard’s treatment of putative class and

subclass members who did not submit a request for an accommodation, exemption,

or waiver. Nor have plaintiffs shown that the Coast Guard reached uniform or even

similar dispositions for the putative class members. Some, like the named plaintiffs,

were separated from the Coast Guard (either voluntarily or involuntarily), while

others remained on active duty. In light of the disparate circumstances represented

by the overbroad putative class and subclasses, the Court cannot find that the

government took “generally applicable” action with respect to the proffered class

representatives and absent class members, as required under RCFC 23(b)(2).

6. Predominance

In addressing this prong, the issue is whether any common questions of law or

fact predominate over questions affecting individual members of the proposed class

or subclasses. RCFC 23(b)(3). As explained supra, plaintiffs have not identified any

common question of law or fact apropos of the proposed class or subclasses. Further,

as this Court recently observed:

11 Counsel have decades of combined experience serving in the military, including the Judge Advocate

General’s Corps, as well as litigating military back pay cases and class actions. In addition to the

detailed experiences cited in counsels’ declarations, the Court takes judicial notice of the fact that lead

counsel authored a book about his experiences in these fields. DALE F. SARAN, UNITED STATES V.

MEMBERS OF THE ARMED FORCES: THE TRUTH BEHIND THE DEPARTMENT OF DEFENSE’S ANTHRAX

VACCINE IMMUNIZATION PROGRAM (2020).

11

To show that common issues predominate, plaintiffs must show

“whether a prima facie showing of liability can be proved by common

evidence or whether this showing varies from class member to class

member.” If the common question requires a “detailed, highly

individualized inquiry” in order to answer it for each plaintiff, then the

predominance requirement is unmet and class certification is not

appropriate.

Bauer, 176 Fed. Cl. at 256 (quoting Oztimurlenk, 162 Fed. Cl. at 692). The Court’s

January 23, 2025 opinion in this case illustrates the need for separate evaluations of

each Coast Guardsman’s individual circumstances to determine the impact, if any,

of the COVID-19 vaccine mandate on their military service.

7. Superiority

Finally, plaintiffs must show that a class action is “superior to other available

methods for fairly and efficiently adjudicating the controversy.” RCFC 23(b)(3);

accord Bauer, 176 Fed. Cl. at 256 (first citing Jaynes, 69 Fed. Cl. at 459; and then

citing Oztimurlenk, 162 Fed. Cl. at 694). To aid in deciding this issue, RCFC 23(b)(3)

directs the Court to a non-exhaustive list of factors: (1) “the class members’ interests

in individually controlling the prosecution of separate actions;” (2) “the extent and

nature of any litigation concerning the controversy already begun by class members;”

and (3) “the likely difficulties in managing a class action.” Id. The Court has

pointedly observed of this requirement:

As with numerosity, the superiority requirement is an odd fit with opt-in

class actions, where class litigation is so similar to joinder that it is

strange to ask whether one approach is better than the other. But be

that as it may, the superiority requirement is met if the prospective class

representative establishes that a class action would achieve economies

of time, effort, and expense, and promote uniformity of decision as to

persons similarly situated, without sacrificing procedural fairness or

bringing about other undesirable results.

Bauer, 176 Fed. Cl. at 256 (cleaned up). Plaintiffs do not demonstrate that litigating

this case by class action would achieve these goals.

The Court already has implemented a fair and efficient method of adjudicating

this controversy by guiding the remand proceedings currently underway. Plaintiffs’

characterization of the remand proceedings as an “ad hoc joinder approach,” ECF 69-

1 at 7, is inaccurate. The Court directed the Coast Guard to send tailored notices to

the identified 1,351 current and former Coast Guardsmen potentially impacted by

this Court’s January 23, 2025 decision and invite them to submit an administrative

claim for relief. Per the Court’s instructions, the Coast Guard must determine in the

first instance whether each claimant is entitled to relief and, if so, the nature and

extent of such relief. Contrary to plaintiffs’ characterization, claimants are not

required to join this lawsuit.

12

The Court struggles to see how certifying the putative class and subclasses

would be more fair or efficient than the current remand proceedings. Invoking the

standard required under RFRA, the “to the person” assessment required for each

military pay claim, paired with the breadth of claims the named plaintiffs seek to

litigate on behalf of putative class members, undermines the contention that class

certification is the superior path forward. See Harkins, 174 Fed. Cl. at 606–07

(quoting 42 U.S.C. § 2000bb-1(a)–(b)). In filing this action, plaintiffs rightfully

challenged the Coast Guard’s one-size-fits-all approach to handling their individual

religious accommodation requests, id. at 609, yet now ask the Court to sanction an

equally inappropriate one-size-fits-all resolution of their highly individualized claims.

The irony is not lost on the Court.

Plaintiffs’ references to certain general features of opt-in class certification

(e.g., establishment of an opt-in deadline and appointment of class counsel) do not

move the needle, as plaintiffs do not explain why these features would promote

fairness and efficiency in this case. The Court, for its part, doubts that the features

of class litigation would be particularly helpful to the putative class and subclass

members. For example, any opt-in deadline the Court may set in a class action would

carry no more force than the deadline to submit an administrative claim, which the

Court has already set. Neither “deadline” alters the six-year statute of limitations

for military back pay claims that begins to accrue upon a service member’s discharge.

28 U.S.C. § 2501; Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (“In

a military discharge case, this court and the Court of Claims have long held that the

plaintiff’s cause of action for back pay accrues at the time of the plaintiff’s discharge.”

(collecting cases)). 12

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for class certification (ECF 69) is

DENIED, and defendant’s request to extend the remand period (ECF 79) is

GRANTED. The Clerk of Court is directed to CONTINUE the stay of proceedings in

this matter until further order of the Court. The Coast Guard shall COMPLETE the

remand proceedings in this matter by December 8, 2025. All remaining deadlines

included in the March 13, 2025 Order (ECF 57) REMAIN in effect. The Clerk of Court

shall SERVE a copy of this Order on the Coast Guard as follows:

12 Plaintiffs’ concern about the response rate to the agreed upon notices sent in connection with the

remand proceedings is procedurally and substantively unavailing. By agreement, the 1,351 notices

were sent by electronic mail and certified United States mail to each service member’s last known

email and physical mailing addresses. If the Court were to certify a class, RCFC 23 would require no

more. See RCFC 23(c)(2)(B) (“The notice may be by one or more of the following: United States mail,

electronic means, or other appropriate means.”). Moreover, the response rate to date appears on par

with those of typical class actions. See U.S. FED. TRADE COMM’N, CONSUMERS AND CLASS ACTIONS:

A RETROSPECTIVE AND ANALYSIS OF SETTLEMENT CAMPAIGNS 11 (2019) (“Across all cases in our sample

requiring a claims process, the median calculated claims rate was 9%, and the weighted mean

(i.e., cases weighted by the number of notice recipients) was 4%.”).

13

Kevin E. Lunday

Acting Commandant

U.S. Coast Guard

Commandant (CG-LCL) — Stop 7213

2703 Martin Luther King Jr. Avenue, SE

Washington, DC 20593-7213

It is so ORDERED.

___________________

Armando O. Bonilla

Judge

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