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Marines continue fight with DOD over vaccine mandate even though it was ended

The DOD asked the court to dismiss the case after Secretary of Defense Lloyd Austin was forced to drop the mandate by Congress.

Published: February 3, 2023 4:00pm

Updated: February 6, 2023 5:07am

(The Center Square) -

Several members of the U.S. Marines are still fighting the U.S. Department of Defense in a lawsuit they filed over its August 2021 COVID-19 vaccine mandate.

The DOD asked the court to dismiss the case after Secretary of Defense Lloyd Austin was forced to drop the mandate by Congress. President Joe Biden, who strongly opposed repealing the mandate, agreed to repealing it when he signed the National Defense Authorization Act into law in December.

Liberty Counsel, the Orlando-based religious freedom legal advocacy organization representing Navy and Marine Corps service members, filed a motion with the court on Wednesday asking the court to continue the case. It pointed to statements made in the Defense secretary’s latest guidance that indicate he would enact another COVID-vaccine mandate in the future and to the administration’s argument that the district court has no jurisdiction over military matters, a claim the presiding judge refutes.

In Colonel Financial Management Officer, United States Marine Corps, et al., v. Lloyd Austin, Liberty Counsel asked Judge Steven Merryday with the U.S. District Court Middle District of Florida to deny the DOD’s motion to dismiss and to set a trial date to adjudicate the plaintiffs’ claims for declaratory relief. Liberty Counsel is also asking the judge to issue a permanent injunction to ban any future related mandates.

The DOD rescinded the mandate after thousands of service members were denied religious accommodation requests (RARs) to exempt them from taking a COVID-19 vaccine only available through Emergency Use Authorization. Those who objected on religious grounds argued that taking the experimental drug didn’t prevent transmission of the coronavirus and its use of aborted fetal cells violated their sincerely held religious beliefs. Nearly all RARs were denied across all military branches and service members faced “cruel and unusual punishment,” demotion and dishonorable discharge, according to briefs filed with the court.

The DOD argues the case is moot because the mandate was rescinded in compliance with the NDAA. Liberty Counsel argues it isn’t because Austin in his latest guidance said he retains the authority to reinstate a COVID-19 mandate in the future, expressed support for mandates, and has yet to acknowledge that branch-wide rejections of RARs violated the Religious Freedom Restoration Act.

Liberty Counsel argues that the only thing the NDAA required regarding the vaccine mandate was to rescind the August 24, 2021, memorandum. “The policy for reviewing and granting religious accommodations clearly violated RFRA and that same policy and practice is not affected by the NDAA,” it notes, which is why it’s asking Merryday to issue a permanent injunction and declaratory relief “to stop the ongoing violation of RFRA.”

The NDAA and the secretary’s rescission memorandum also don’t address adverse consequences, retaliation, or other disciplinary measures beyond separation or discharge, Liberty Counsel noted.

“That silence is deafening to the ears of plaintiffs and the class of U.S. Marines who have seen evidence of retaliation since the institution of the COVID shot mandate,” it said. “The DOD must be permanently enjoined from retaliating against the service members who submitted” RARs, it says, and everyone who was “punished, demoted or discharged must be reinstated and their records corrected.”

Liberty Counsel Founder and Chairman Mat Staver said, “Repealing the COVID shot mandate for military members does not moot this case. Joe Biden and the Department of Defense continue to argue courts have no jurisdiction over the military, an argument that the courts have soundly rejected. The history of this case clearly demonstrates the open violation of the First Amendment and the Religious Freedom Restoration Act. This lawlessness must end. Our military members who love God and America have been horribly abused and they must be honored again.”

Sen. Ted Cruz, R-Texas, and U.S. Rep. Dan Bishop, R-N.C., filed companion bills that would require the DOD to reinstate any service member separated solely for COVID-19 vaccine status who wants to return to service, to credit all service members with the time of involuntary separation for retirement pay calculations, restore their rank if they were demoted, and compensate them for any pay and benefits lost due to demotions.

The bills also would prohibit the Defense secretary from issuing any replacement COVID-19 vaccine mandates without Congressional approval, require “general” discharges to be changed to “honorable” and require any records with adverse actions based solely on COVID-19 vaccine status to be expunged.

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