Who is responsible for deaths caused by COVID-19 vaccines? According to an unusual judicial panel, it's not the federal agency largely responsible for the logistics of Operation Warp Speed, which rushed to develop novel mRNA products before the 2020 presidential election.

Designated by the U.S. Court of Appeals for the D.C. Circuit, a "three-judge District Court" rubber-stamped a 2024 ruling by U.S. District Judge Carl Nichols that dismissed a lawsuit against then-Secretary of Defense Lloyd Austin by the estate of a college student who died from heart inflammation induced by a pre-licensed vaccine.

The family of the late George Watts Jr. alleged the Pentagon conducted a "bait and switch" by falsely advertising Pfizer's emergency use authorization (EUA) vaccine, which Watts took to comply with his college mandate, as its fully licensed Comirnaty vaccine, a "deliberate and calculated mass-deception campaign" that amounts to "human experimentation without consent."

That "willful misconduct" by Austin, since replaced as defendant by War Secretary Pete Hegseth, preempts the Pentagon's legal shield under the Public Readiness and Emergency Preparedness Act, the estate's lawsuit argued.

Composed of D.C. Circuit Judge Michelle Childs and U.S. District Judge Jia Cobb, both nominated by President Biden, in addition to President Trump-nominated Nichols, the panel rejected estate lawyer Ray Flores's argument that the panel itself was improperly formed and claimed the Pentagon's sovereign immunity didn't depend on the PREP Act.

General Counsel Kim Mack Rosenberg, of Children's Health Defense, which is funding the suit, told CHD's in-house publication it was "disappointing that the three-judge panel went no further in analyzing complex issues such as waiver of sovereign immunity, due process and willful misconduct" after Nichols botched the law by unilaterally dismissing the case.

Nichols reversed himself in a sharply worded opinion last summer that blamed Flores for waiting until he dismissed the case to argue "for the first time" that Nichols didn't have jurisdiction to dismiss the suit under the PREP Act. The judge apparently didn't closely read the law, which explicitly assigns willful-misconduct claims "initially" to a three-judge panel.

Flores is also known for suing CHD founder and Health and Human Services Secretary Robert F. Kennedy Jr., with financial backing by CHD, for failure to create a vaccine safety task force under long-ignored provisions of the National Childhood Vaccine Injury Act of 1986. The parties dismissed the suit days after HHS revived the task force last summer.

The docket shows Flores filed a notice of appeal with the Supreme Court the same day of the unsigned panel opinion, in which no judge claimed authorship.

Flores told Just the News that both D.C. Circuit and U.S. District Court in D.C., the sole jurisdiction for PREP Act challenges, are confused on how to handle the case, which he called the first to allege willful misconduct since the law was enacted in 2005.

"The appeal was already in play while I was awaiting" Nichols' ruling on whether he would vacate the dismissal, but the Trump nominee again botched the PREP Act by asking the D.C. Circuit to empanel three judges including himself to hear the case, Flores said. 

His motion argued the district court itself must convene a three-judge panel.

"This is all completely new territory," so while Flores awaits a ruling from the D.C. Circuit on whether it will set a briefing schedule or dismiss the case, he said he preserved his right to appeal directly to SCOTUS.

'General immunity' from lawsuits, not based on PREP Act

The legal distinction between Pfizer's EUA and Comirnaty vaccines, which is relevant to vaccine mandates, was such a sensitive subject to Twitter in 2021 that it suspended Just the News founder John Solomon's account for sharing a report on the distinction.

EUA vaccines cannot be marketed as "safe and effective," yet Pfizer kept distributing its pre-licensed vaccine after the Food and Drug Administration approved Comirnaty, claiming both have the "same formulation" and "can be used interchangeably." 

U.S. District Judge Allen Winsor ruled they were not the same materially or legally in a challenge to the Defense Department's mandate on service members, which only applied to "FDA-approved COVID-19 vaccines." 

Nominated by President Trump, Winsor noted Comirnaty has an ingredient the EUA vaccine does not. Licensure doesn't apply retroactively to shipped EUA vials and limits Comirnaty's manufacture to "approved locations," he ruled, rejecting DOD's claim that Pfizer's EUA vaccine "became Comirnaty" after the latter's licensure.

Nichols' 2024 ruling rejected the Watts' estate's claim that the PREP Act is unconstitutional insofar as it provides legal immunity because it violates the 5th Amendment's due process clause and "amounts to a taking of a plaintiff's cause of action."

The government didn't assert PREP Act immunity but rather "general immunity" from lawsuits for money damages against "officials in their official capacity" absent a specific waiver of immunity, Nichols said. The PREP Act "explicitly preserves" that immunity and Nichols lacks the power to "replace that provision with a specific waiver of sovereign immunity."

'Following a rule that doesn't apply'

Flores challenged the composition of the panel designated by Circuit Chief Judge Sri Srinivasan, saying the "District Court Clerk" should have assigned and limited the panel to district judges who "did not necessarily include Judge Nichols," the panel's order said.

"Nothing in the Act specifies who should assign the panel nor which judges should constitute it," and all the requirements of the federal law on three-judge district courts "appear to apply except for the provision" permitting a single judge to handle everything but the trial.

The panel singled out the provision requiring the district judge who receives a request for a three-judge panel to "notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge."

The rest of the decision regurgitates Nichols' rationale for dismissing the suit on general immunity grounds. "They took the original dismissal and copied it verbatim," Flores said.

He faulted the panel for leaving out the word "initially" in the PREP Act procedure for three-judge panels to hear willful misconduct claims, which he said negates the panel's existence as chosen by the D.C. Circuit at Nichols' request.

The D.C. Circuit's local rules say that if a three-judge panel is chosen, a single judge hears the case until the trial, yet the PREP Act procedure – still not mentioned in its local rules 21 years later – assigns the three-judge panel to hear the case until the trial, so Nichols "was following a rule that doesn't apply," Flores said.

It makes no sense to dismiss the case for lack of jurisdiction because the U.S. District Court in D.C. is the designated venue for challenges to decisions by the Countermeasures Injury Compensation Program, under which COVID vaccine injury claims are handled, Flores said. Claiming no waiver of sovereign immunity "conflicts with their stance in other cases."

Watts' family sued after getting no determination from CICP within its statutory 240-day window for responding to claims, according to CHD. 

The paltry approval rate for CICP claims drew congressional scrutiny two years ago, when only 11 out of 12,000 COVID vaccine claims had allegedly been paid and only 40 were ever deemed eligible. Federal figures for compensated CICP claims as of Feb. 1 show 44 claims were paid a total of about $6.5 million.

No College Mandates said it was the first organization to contact Watts' family about his sudden death and connected them to CHD "with the hopes it would become the case that challenged the constitutionality of the Prep Act," but "when you have judges that refuse to hear the merits of the case, it is extremely hard to unravel the disasters that have resulted" from the law.