Troops, federal employees, contractors sue Biden administration over COVID vax mandate

Military plaintiffs include two Navy SEALs, a Navy EOD Officer, a Navy senior chief petty officer, a Navy chaplain, two Marine lieutenant colonels, two Marine lance corporals, an Air Force major, an Air Force technical sergeant, an Army National Guardsman, an Army colonel, and a Coast Guard lieutenant.

Updated: October 16, 2021 - 12:02pm

The Facts Inside Our Reporter’s Notebook

Washington, D.C.-based Liberty Counsel has filed a class action lawsuit against President Joe Biden, Secretary of Defense Lloyd Austin and Secretary of the Department of Homeland Security Alejandro Mayorkas on behalf of members from five branches of the military as well as federal employees and civilian contractors. 

The plaintiffs claim they have been unlawfully ordered to get the COVID-19 shots or face dishonorable discharge or termination from employment.

The military plaintiffs include two Navy SEALs, a Navy EOD Officer, a Navy senior chief petty officer, a Navy chaplain, two Marine lieutenant colonels, two Marine lance corporals, an Air Force major, an Air Force technical sergeant, an Army National Guardsman, an Army colonel, and a Coast Guard lieutenant.

Non-military plaintiffs include a Department of Defense contractor, a federal civilian engineer, a federal civilian contractor employer, a federal nuclear contractor employee, and a Department of Energy civilian nuclear tech.

In a sworn statement to Liberty Counsel, one Navy chaplain stated: "I personally observed (and the Sailors told me in the course of counseling about) tremendous amounts of coercion, bullying, censorship, and intimidation being brought forth by the command to bear against the personnel who expressed objections of any kind to the COVID shot mandates, including religious objections ... And clearly, the military has lost more lives to the increase in suicide from 2020-2021 (at least 1,012) than to all of COVID in 2 years (~52), but suicide has not been a focus."

The lawsuit is in response to an Aug. 24 memo issued by the secretary of defense, directing "the Secretaries of the Military Departments to immediately begin full vaccination of all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard, who are not fully vaccinated against COVID-19."

In the directive Austin claimed, "Mandatory vaccination against COVID-19 will only use COVID-19 vaccines that receive full licensure from the Food and Drug Administration (FDA), in accordance with FDA-approved labeling and guidance." 

However, Liberty Counsel maintains there are currently no FDA-approved COVID-19 shots available anywhere in the U.S. All the vaccines being administered, the group argues, have received emergency use authorization only, which under federal law means individuals must have the "option to accept or refuse" them.

On June 23, Dr. Matthew Oster, a member of Biden's CDC COVID-19 Task Force, admitted, "It does appear that mRNA vaccines may be a new trigger for Myocarditis," citing especially the risk to "young men aged 16-30." Myocarditis is a severe and life-threatening inflammation of the heart.

On June 29, the Defense Health Agency published a report in the Journal of the American Medical Association Cardiology that found that previously healthy service members have developed myocarditis just four days after receiving their first Pfizer-BioNTech or Moderna shot.

On Sept. 9, Biden issued an executive order requiring all federal employees to receive the COVID injections as a condition of continued employment. He issued another executive order requiring all federal contractors and subcontractors to receive them as a condition of continued contract service with the U. S. government.

While the EUA can be waived for the military following strict and limited criteria — which Liberty Counsel argues have not been met — the EUA cannot be waived for civilians.

All of the plaintiffs have submitted religious exemption requests. However, service members were told there are no religious exemptions and by submitting them they would be subject to dishonorable discharge, the complaint alleges. They also potentially face court martial, termination and other disciplinary actions merely for submitting religious exemption requests, according to Liberty Counsel.

The plaintiffs are protected by the federal Religious Freedom Restoration Act of 1993, Liberty Counsel argues. The Supreme Court has ruled that RFRA "prohibits the federal government from substantially burdening a person's exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest," according to the complaint. "Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII's commands in appropriate cases."

Liberty Counsel Founder and Chairman Mat Staver argues: "The Biden administration has no authority to require the COVID shots for the military or for federal employees or civilian contractors. Nor can the Biden administration pretend that the federal Religious Freedom Restoration Act and the First Amendment do not apply to its unlawful mandates. The Commander-in-Chief must end this shameful treatment and abuse of our brave military heroes. Forcing the COVID shots without consent or consideration for their sincere religious beliefs is illegal."

Neither the White House nor the secretary of defense have issued statements on the lawsuit. But Austin maintains that mandatory COVID-19 vaccinations for service members are necessary to protect the health and readiness of the force.

"Full Use Authorization (FUA) has been granted for use of the Pfizer-BioNTech vaccine among people aged 16 and older," the Pentagon states on its website. "Emergency Use Authorization has been granted for use of both the Moderna vaccine and the Johnson and Johnson Janssen vaccine among people aged 18 years and older."

In August, however, the FDA stated that although the Comirnaty COVID-19 vaccine was granted full approval, the Pfizer-BioNTech COVID-19 vaccine was still subject to the EUA law.

The new lawsuit follows an unsuccessful previous suit filed by an Army staff sergeant and Marine staff sergeant.

On Aug. 17, Army Staff Sgt. Dan Robert, a drill sergeant at Fort Bragg, N.C., and Marine Staff Sgt. Hollie Mulvihill, an air traffic controller at Marine Corps Air Station in New River, N.C. sued. They asked U.S. District Court Judge Raymond Moore for a temporary restraining order to halt the mandate for military members who had the coronavirus and have natural immunity.

Moore denied their request.

One of the sergeants' attorneys, Dale Saran, told Military Times that the Defense Department may not be following its own rules. "Army Regulation 40-562 presumptively exempts from any vaccination requirement for a service member that the military knows has had a documented previous infection," the plaintiffs in that case claim.

An Army Medical Command document obtained by Military Times cites authorized medical exemptions, including "evidence of immunity based on serologic tests, documented infection, or similar circumstances," which Saran says includes the coronavirus. 

According to Pentagon data, as of Oct. 13, 1.3 million service members and 322,406 DOD civilian employees have received both COVID shots.