Plaintiff attorneys: Lawsuits against DOD to continue despite recision of vaccine mandate

Sixteen months after Defense Secretary Lloyd Austin issued a directive requiring all military members to get the COVID-19 vaccine or face disciplinary action or be forced out of the military, he was forced to rescind it by Congress.

Despite the rescission, lawsuits over the mandate will continue in January on behalf of service members who sued in multiple states. Plaintiffs attorneys argue the rescission isn’t enough to ensure protections for service members against DOD policies and future mandates.

President Joe Biden – who opposed repealing the DOD mandate – signed into law the National Defense Authorization Act (NDAA) on Dec. 23, which requires the DOD mandate to be rescinded. On the same day, Austin announced the DOD “will rescind the mandate and is currently in the process of developing further guidance. During this process, we are pausing all actions related to the COVID-19 vaccine mandate.”

He also said he “stands by his decision to mandate COVID-19 vaccination in August 2021” and “continues to encourage all of our Service members, civilian employees, and contractor personnel to get vaccinated and boosted to ensure the readiness of our Total Force.”

Congress passed the NDAA after multiple courts ruled the DOD and military branches violated the Religious Freedom Restoration Act (RFRA) by denying service members’ religious accommodation requests (RARs) to be exempt from the mandate.

According to Austin’s latest announcement, as of Dec. 1, 2022, approximately 13,000 active-duty members’ and 6,000 reservists’ RARs had been adjudicated. Among them, the Army approved 6.04%; the Navy approved 1.02%; the Air Force and Space Force approved 2.31%; the Marine Corps approved 0.52%, the DOD states. Approximately 5,000 active-duty members’ and 12,500 reservists’ RARs are still pending adjudication across all military branches, it says.

However, “with the rescission of the mandate, there is no current requirement to adjudicate requests for religious accommodation from that mandate,” the announcement states. It also notes that adverse actions placed in the military personnel records of those who refused to be vaccinated will remain in their official military personnel file.

As of Dec. 1, 98% of all active-duty service members and 96% of the total military force are fully vaccinated, the DOD says. As of Nov. 30, 8,123 service members had been discharged for refusing to take the COVID-19 vaccine and none received an “other than honorable” discharge solely for refusing to take it.

The DOD announcement also states that the “COVID-19 vaccines were developed using a range of methods, and are now widely available to Service members to provide options for individuals with medical or religious concerns.” This claim is false, Liberty Counsel, the Orlando-based religious freedom organization defending service members who sued over the mandate, argues.

“Every option used aborted fetal cells in their testing and/or development (Pfizer, Moderna, Johnson & Johnson and Novavax),” Liberty Counsel said. “In addition to aborted fetal cells, many religious requesters objected to the experimental mRNA shots of Pfizer and Moderna. The DOD continues to misrepresent the facts and has continually violated the law.”

The DOD memo also includes other “misrepresentations,” including the 0.5% to 6% ranges of approved RARs by military branch, which were really zero, Liberty Counsel argues. “No military member who intends to remain in the service has received a religious accommodation,” it states, which is why lawsuits are continuing.

The RAR data submitted by military branches to the courts in their respective lawsuits contradicts the data reported in the Dec. 23 DOD announcement, Liberty Counsel says. While different branches approved medical exemptions, “no religious exemptions have been granted,” except for a small number for people who were already leaving the service, court documents have shown.

Liberty Counsel also raised concerns about DOD policies stated in a FAQ section of the announcement that imply COVID-19 vaccination requirements could be reinstated.

Liberty Counsel Founder and Chairman Mat Staver said, “While we are pleased that Joe Biden’s unlawful and abusive COVID shot mandate will be rescinded, this begrudging reversal under pressure by Congress is not enough. The FAQs in the memo reveal that the service members who applied for religious accommodation requests will continue to have adverse actions in their personnel files.

“The Department of Defense and the military branches have taken the position that any service member who requested a religious accommodation request was disrupting good order and discipline. Astoundingly, those who defend the Constitution and the laws of the land are considered insubordinate when they request that the laws for which they pledge their lives be upheld.

Staver said the legal cases "will continue because without the injunctions, service members will continue to face retaliation for requesting a religious accommodation. Service members who have been loyal to the country and faithful to their religious convictions have suffered greatly under this mandate, and we will continue to seek justice for them.”

On Dec. 14, Liberty Counsel presented oral arguments before the Eleventh Circuit Court of Appeals on behalf of a U.S. Marine lieutenant colonel and Navy commander of a warship. In January 2023, it’s returning to court seeking to convert a classwide preliminary injunction to a permanent injunction for the U.S. Marines.