Two former military personnel met a chilly reception in Denver’s federal appeals court last week, with judges questioning not only whether the plaintiffs had an opportunity to sue over the government’s requirement to vaccinate against COVID-19, but also whether the plaintiffs they even talked factually about the vaccines.
During Friday’s hearing in the US Circuit Court of Appeals for the 10th Circuit, attorneys for Staff Sgts. Daniel Robert and Hollie Mulvihill claimed the US Department of Defense is enforcing “government-ordered experiments on humans” because there is “no fully approved vaccine” for COVID-19.
“I don’t think that’s quite right,” Judge Carolyn B. McHugh replied. In fact, the US Food and Drug Administration licensed the vaccines from drugmakers Pfizer and Moderna.
When Robert and Mulvihill filed their lawsuit in Colorado, they were stationed in North Carolina at US Army and US Marine Corps facilities, respectively. Although they indicated that their lawsuit would be a class-action lawsuit on behalf of all military members who, like them, had contracted COVID-19 in the past and were trying to avoid getting the COVID-19 vaccine in the future, the plaintiffs never received approval for one judge to represent such a class.
Alleging that the military is violating its own regulations and federal law by requiring vaccination against COVID-19, Robert and Mulvihill are demanding a court order outlawing the administration of vaccines in order to provide all members of the class with a medical to issue a waiver and block the Department of Defense from vaccinating any soldiers until the case is closed.
When the plaintiffs filed suit, Secretary of Defense Lloyd Austin and President Joe Biden had expressed support for adding COVID-19 to the list of required vaccinations. However, Austin’s order didn’t come until August 24, 2021 — a week after Robert and Mulvilhill filed their lawsuit.
In a brief ruling in January this year, US District Court Judge Raymond P. Moore granted the government’s motion to dismiss the lawsuit. At that point Robert had applied for a waiver from the pending vaccination requirement and Mulvihill had applied for and been granted a temporary medical waiver. Moore found no reason to believe that the plaintiffs’ exemptions would be denied or revoked, and even if they did, the military had an internal appeals process to handle such claims prior to judicial intervention.
On appeal to the 10th Circuit, Robert and Mulvihill repeatedly made claims about the COVID-19 vaccines that were factually incorrect, including that they were “DNA-altering,” “ineffective,” and had an “extraordinarily high likelihood of injury or death.” ” cause. ”
“A court will have the ability to decide what standard should apply to government-mandated human experimentation. That’s really what this case is about,” attorney Todd S. Callender told the three-judge appellate panel.
The government moved that the appeal be dismissed before the hearing, noting that the case was reportedly moot as a whole alongside the alleged standing of the plaintiffs. Robert was due to be permanently retired on 21 November due to disability and Mulvihill had administratively separated from the military in September.
“There is no longer any prospect of either plaintiff being subject to the military’s COVID-19 vaccination requirement,” federal prosecutors wrote. “In other words, the plaintiffs lack ongoing involvement in the litigation.”
Both issues—contentiousness and standing—were central to arguments before the Appellate Body.
Callender alleged that at the time his clients filed their lawsuits, there was a “promise” from the Secretary of Defense about impending vaccination that would force “gene-modification experiments” on military personnel.
“Now what I am asking of you is to answer a very simple question,” said Chief Judge Jerome A. Holmes. “When this complaint was filed, had the President issued his request that all federal employees receive the vaccination and had the Secretary made his statement that vaccinations will be mandatory? Did both happen or not?”
“No, Your Honor,” Callender conceded, before adding that vaccination requirements allegedly “destroyed” the military’s preparedness.
“It doesn’t talk about others. We’re talking about your two clients. They’re the only people in front of us,” Holmes said.
McHugh noted that it is difficult to say whether the lawsuit lapsed or whether the government deliberately attempted to “push” her out of service to end the litigation because the plaintiffs, with the government’s account of why they did it leave the military, disagree. Attorney for the US Department of Justice Sarah J. Clark responded that it was not disputed that the plaintiffs had left the military, stating that at the time Austin ordered military members to be vaccinated, the Pfizer-BioNTech vaccine was a had FDA approval.
“The reason it’s illegal was because it wasn’t fully approved by the FDA. So that’s debatable, isn’t it?” McHugh asked.
“Sure,” Clark replied.
The appellants also argued that the vaccines lasted their “13th Amendment right to remain human, not to become someone else’s slave,” implied, but did not allege, that mandatory vaccination in their underlying lawsuit violated the 13th Amendment prohibition on slavery.
By July, the Army reported that 96% of its active-duty personnel had complied with vaccination requirements, with a small number of permanent medical and religious exemptions being granted. A similar percentage of Marine Corps members were vaccinated. In all, about 4,600 people have split from the two branches for not receiving the vaccine or not being granted an exemption.