Naturally immune federal workers file class-action suit against Fauci for COVID vaccine mandate

Suit claims the feds are following the EPA's playbook for the Clean Power Plan, which the Supreme Court blocked before a lower court could review it.

Updated: November 9, 2021 - 11:57am

Federal employees with natural immunity from COVID-19 infection filed a class-action lawsuit Friday against the members of President Biden's task force that enforces his COVID vaccine mandate for government workers, intending to stop it before a deadline this month.

The defendants include National Institute of Allergy and Infectious Diseases director Anthony Fauci, CDC director Rochelle Walensky, White House coronavirus response coordinator Jeffrey Zients, Surgeon General Vivek Murthy and Veterans Affairs Secretary Denis McDonough.

The mandate is "at the very least, arbitrary and capricious in addition to being overbroad and poorly designed," violating constitutional rights against "unnecessary medical treatment" and the emergency use authorization (EUA) statute that still governs all but one vaccine, the suit claims.

Moreover, it lacks exemptions for both natural immunity and fully remote workers, calling into question whether it's "designed to accomplish a legitimate federal purpose," according to the plaintiffs. At the same time, they argue, the mandate accepts "foreign vaccines that the FDA has not approved in any fashion" and which are measurably less effective than natural immunity.

The suit was filed in the U.S. District Court for the Southern District of Texas, where plaintiff and civilian Navy employee Isaac McLaughlin lives and where some of the plaintiffs' agencies have offices.

The court is overseen by the 5th U.S. Circuit Court of Appeals, which halted the related employer COVID vaccine mandate over the weekend, citing "grave statutory and constitutional issues."

The other 10 representatives of the naturally-immune class of federal employees live in Texas, Florida, Georgia, Virginia, Louisiana, New Jersey and California. They work for U.S. Immigration and Customs Enforcement, the Federal Aviation Administration, the Transportation Security Administration, the Department of Agriculture and the Secret Service.

The mandate is not saved by FDA's full approval of Pfizer's Comirnaty vaccine, which is in short supply but also "legally distinct" from Pfizer's BioNTech vaccine that is still under EUA, the suit claims. 

The FDA further acknowledges the two have unspecified "differences" while claiming they're interchangeable through nonbinding guidance. Even if they were the same, "no federal employee can be guaranteed access" to the fully approved version, the suit claims.

"Accepting federal employment does not mean serving as a guinea pig for emergency use drugs," the complaint continues. Even if a vaccine raised their "antibody levels even higher," the increase would "provide no discernible, let alone compelling, benefit" to the plaintiffs or the federal workforce.

The plaintiffs are represented by the New Civil Liberties Alliance and Texas Public Policy Foundation, which estimates there are "tens of thousands" more potential class members even if 90% of the naturally immune federal workforce takes a vaccine.

"If your federal employer can do this," can they also "impose liposuction for the overweight or take spare kidneys for other workers in need?" NCLA senior litigation counsel John Vecchione said in a press release. 

The suit includes 20 pages of declarations on the "durable protection" from natural immunity by Harvard Medical School's Martin Kulldorff and Stanford Med's Jay Bhattacharya. They did the same for natural immunity lawsuits against COVID vaccine mandates at Michigan State and George Mason University

Clean Power Plan redux

Since the president's Sept. 9 executive order, the Safer Federal Workforce Task Force "has issued a shifting set of guidance instructions" through its accordion-style FAQ page, which is "constantly morphing into new forms via a living web document" that also directs users to other pages, the suit said.

Among these is a misleading compliance deadline of Nov. 22. Because the task force defines "fully vaccinated" as two weeks after receiving either the two-dose Pfizer or Moderna vaccines, or the one-shot Johnson & Johnson vaccine, the functional deadline is Nov. 8 — the first business day after the suit was filed.

Due to the dosing schedule for the mRNA vaccines, workers must have had the first of two doses either Oct. 11 or 18, and well-known shortages of Johnson & Johnson mean it may not be available nearby to workers up to Nov. 8, the plaintiffs claim.

Because the stated deadline relies on having met even earlier deadlines or vaccine availability in a particular area, "federal employees who object to this illegal Federal Employee Vaccine Mandate cannot await the issuance of regulations or agency-specific policies to come into compliance," the suit says.

They face the explicit threat of termination because there's no "disciplinary grace period," leaving them no choice but to seek an injunction against the mandate while litigation proceeds.

The task force is "running the same play" as did Environmental Protection Agency administrator Gina McCarthy in 2015, the suit claims. 

She issued the sweeping Clean Power Plan, a 2,000-page regulation that allegedly exceeded its authority, and publicly predicted that most utilities would comply even if the courts eventually struck it down. 

The Supreme Court issued a stay on the regulation before it was heard in a lower appeals court, and the Trump administration killed it the following year. But unlike capital investments in electricity infrastructure, "which can be unwound at least to some extent, taking a vaccine is truly irreversible," the suit claims.

The task force and the overlapping White House COVID-19 response team "set these aggressive deadlines for compliance" to coerce employees into getting vaccinated before "more detailed guidance providing true fair notice could be put in place" and courts could weigh in.

The only action since the suit was filed was a pretrial and scheduling conference set for Feb. 23 by U.S. District Judge Andrew Edison.