US Service Members File Lawsuit Against Department of Defense Over Vaccine Requirement

By Katabella Roberts October 1, 2021 Updated: October 1, 2021 bigger smaller

Two U.S. service members have filed a lawsuit against Defense Secretary Lloyd Austin to bring an end to his requirement that all troops must receive a COVID-19 vaccine. As part of that, they have called for exemptions based on natural immunity. Army Staff Sgt. Dan Robert, an infantryman at Fort Bragg, N.C., and Marine Corps Staff Sgt. Hollie Mulvihill, an air traffic controller at Marine Corps Air Station New River, N.C., filed the lawsuit in the U.S. District Court of Colorado on Aug. 17. The filing names Austin as a defendant alongside Secretary of Health and Human Services, Xavier Becerra, and Janet Woodcock, acting commissioner of the Food and Drug Administration (FDA). Both the service members are filing the lawsuit on behalf of themselves and other active duty service members—including those that have survived COVID-19—who have been mandated to have the vaccine. As per the lawsuit, Robert and Mulvihill claim that Austin had publicly notified them via a memo that they are to be immediately vaccinated and that the Department of Defense (DoD) are “already vaccinating military members in open violation of their legal obligations and the rights of service members under federal law and the constitution.” Roberts and Mulvihill also based their argument on the Pfizer-BioNTech vaccine’s previous emergency-use authorization standing, noting that “Federal Statutes prohibit the use of any unlicensed vaccines whatsoever on service members without their informed consent.” The plaintiffs are seeking declaratory and injunctive relief because the DoD is “using an Emergency Use Authorisation COVID-19 vaccine.” Pfizer-BioNTech received full FDA approval on Aug. 23, days after the lawsuit was filed. The service members also want to create a medical exemption—based on evidence submitted through serologic tests, documented infection, or similar circumstances—for those who were previously infected with the virus and have survived because they have “natural immunity.” “Neither the President, not the Secretary of Defense, nor the Secretary of the Department of Health and Human Services, nor the Secretary of the Food and Drug Administration have complied with t