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Court skeptical of anti-vax challenge

Plaintiffs were questioned whether they had the ability to sue over COVID policy

BY MICHAEL KARLIK michael.karlik@coloradopolitics.com

Two former military personnel ran into a chilly reception at the federal appeals court based in Denver last week, with judges calling into question not only whether the plaintiffs had the ability to sue over the government’s COVID-19 vaccination requirement, but also if the plaintiffs were even speaking factually about the vaccines.

During oral arguments Friday before the U.S. Court of Appeals for the 10th Circuit, lawyers for Staff Sgts. Daniel Robert and Hollie Mulvihill claimed the U.S. Department of Defense was forcing “government-mandated experimentation on human beings” because there “is no fully-licensed vaccine” for COVID-19.

“I don’t think that’s quite correct,” responded Judge Carolyn B. Mchugh. In fact, the U.S. Food and Drug Administration has licensed the vaccines from drug manufacturers Pfizer and Moderna.

At the time Robert and Mulvihill filed their lawsuit in Colorado, they were stationed in North Carolina at U.S. Army and U.S. Marine Corps installations, respectively. Although they indicated their litigation would be a class action on behalf of all service members who, like them, had contracted COVID-19 in the past and sought to avoid COVID-19 vaccination in the future, the plaintiffs never received a judge’s approval to represent such a class.

Robert and Mulvihill claimed the military was violating its own regulations and federal law by requiring COVID-19 vaccination, and asked for a court order declaring the administration of vaccines illegal, to give a medical exemption to all members of the class, and to block the Defense Department from vaccinating any service members until the case was over.

At the time the plaintiffs filed suit, Defense Secretary Lloyd Austin

and President Joe Biden had expressed support for adding COVID-19 to the list of required vaccinations. However, Austin’s directive did not come until Aug. 24, 2021 — one week after Robert and Mulvilhill filed their lawsuit.

In a brief order this January, U.S. District Court Judge Raymond P. Moore granted the government’s request to dismiss the lawsuit. At that time, Robert had requested an exemption from the vaccine requirement, which was pending, and Mulvihill had requested and received a temporary medical exemption. Moore found no reason to believe the plaintiffs’ exemptions would be denied or revoked and, even if they were, the military had an internal appeals process to handle such claims prior to any judicial intervention.

On appeal to the 10th Circuit, Robert and Mulvihill made repeated assertions about the COVID-19 vaccines that were factually incorrect, including that they are “Dna-altering,” “ineffective,” and cause an “exceedingly high likelihood of injury or death.”

“A court is going to have the opportunity to decide on what standard should apply to government-mandated experimentation on human beings. That’s what this case is really about,” attorney Todd S. Callender told the three-judge appellate panel. The government moved to dismiss the appeal prior to oral arguments, noting that in addition to the plaintiffs’ alleged lack of standing, the case was reportedly moot altogether. Robert was scheduled to be permanently retired due to a disability as of Nov. 21 and Mulvihill had administratively separated from the military in September.

“There is no longer any prospect that either plaintiff will be subject to the military’s COVID-19 vaccination requirement,” federal attorneys wrote. “Put differently, plaintiffs lack an ongoing stake in the litigation.”

Both issues — mootness and standing — were at the center of the arguments before the appellate panel.

Callender contended there was a “promise” from the secretary of defense of an impending vaccination requirement at the time his clients filed their lawsuit that would force “gene modification experiments” on service members.

“What I’m asking you to do right now is to answer a very simple question,” interjected Chief Judge Jerome A. Holmes. “When that complaint was filed, had the president issued his requirement that all federal employees have the vaccination, and had the secretary issued his statement that vaccines will be compulsory? Did both of those things happen or not?”

“No, your honor,” Callender conceded, before adding that the vaccination requirement had allegedly “destroyed” the military’s readiness.

“There is no talking other people. We’re talking about your two clients. Those are the only people before us,” Holmes said.

Mchugh observed that because the plaintiffs disagreed with the government’s narrative on why they were leaving the military, it was difficult to say if the lawsuit is moot or if the government had purposefully tried to “drive them out” of the service to end the litigation. U.S. Department of Justice lawyer Sarah J. Clark responded that it was undisputed the plaintiffs had left the military, and elaborated that the Pfizer-biontech vaccine had FDA licensure at the time Austin ordered service members to be vaccinated.

“The basis for it being illegal was it wasn’t fully approved by the FDA. So that’s moot, right?” Mchugh asked. “Sure,” replied Clark. The plaintiffs on appeal also argued the vaccines implicated their “13th Amendment rights to remain human, to not become a slave to somebody else,” but they did not claim the vaccine requirement violated the 13th Amendment’s prohibition on slavery in their underlying lawsuit.

As of July, the Army reported that 96% of its active personnel had complied with the vaccination requirement, with a small number of permanent medical and religious exemptions granted. A similar percentage of Marine Corps members have been vaccinated. In total, approximately 4,600 people have separated from the two branches for failing to receive the vaccine or obtain an exemption.

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2022-11-24T08:00:00.0000000Z

2022-11-24T08:00:00.0000000Z

https://daily.gazette.com/article/283051238452050

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