16 Service Members Sue to Halt DoD's Vaccine Order

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An aerospace medical technician reaches for a dose of the Moderna vaccine
An aerospace medical technician and member of the COVID-19 Task Force reaches for a dose of the Moderna vaccine at a COVID-19 vaccination site at Smith-Wills Stadium in Jackson, Miss., January 27, 2021. (U.S. Army National Guard Photo by Spc. Christopher Shannon II)

More than a dozen unidentified U.S. service members have filed a lawsuit seeking to overturn the Defense Department's COVID-19 vaccine order, saying they have natural immunity from contracting the illness, are pregnant or trying to have a baby and don't want the vaccines.

The lawsuit -- the second filed by U.S. military personnel against DoD leadership and the acting commissioner of the Food and Drug Administration -- seeks exemptions from Defense Secretary Lloyd Austin's Aug. 25 mandate requiring the vaccine, as well as a temporary restraining order to stop the ongoing immunizations.

The suit, filed in the U.S. District Court for Northern Florida, argues that the order infringes "upon the plaintiffs' constitutional rights" and says the Food and Drug Administration did not consider COVID-19 immunity or pregnancy before approving the vaccine for adults ages 18 and older.

The FDA issued an emergency use authorization for Pfizer's COVID-19 vaccine in December 2020 following clinical trials that showed the vaccine was more than 90% effective against the illness. Pregnant women and those who contracted COVID-19 were excluded from the initial trials, although studies are underway among pregnant women. The Centers for Disease Control and Prevention recommends the vaccine for this group, noting that COVID-19 often is more severe in pregnant women and the benefits outweigh the risks.

The service members, identified in court documents as John Doe 1-14 and Jane Doe 1-2, are represented by a team that includes lawyers for Defending the Republic, a Texas-based organization associated with Sidney Powell, the attorney for former President Donald Trump who filed several quickly dismissed lawsuits alleging, without evidence, widespread voter fraud in the 2020 presidential election.

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The Florida case does not name the defendants. But it says several have requested religious exemptions and medical waivers but are facing deadlines for their respective services' mandates.

Of the two women and 14 men, seven are in the Air Force or Air Force Reserve; five are in the Marine Corps; three are in the Navy; and one is in the Army Reserve.

Nine are officers. At least six have requested religious waivers and one, a sailor, has had a religious exemption since 2013 but was told it does not apply to the COVID vaccine. Several have said they had COVID-19 and believe they qualify for a medical exemption.

One service member, an airman located in Fort Walton Beach, Florida, said he was forced to get a vaccine -- the single-dose Johnson & Johnson immunization, currently offered under an emergency use authorization.

Quoting a pre-print study -- meaning it has not been reviewed by other scientists as is required ahead of publishing for academic journals -- conducted in Israel of the lasting effects of natural immunity versus vaccination, the suit argues that "natural immunity confers longer lasting and stronger protection against infection."

The study, using data from Israel's second-largest medical organization, found that natural immunity provided longer-lasting and stronger protection against infection, symptomatic disease, and hospitalization specifically from the Delta variant.

It also found, however, that having COVID-19 and receiving at least one dose of the vaccine offered maximum protection. The data review found that those who had a previous coronavirus infection were twice as likely to get the illness again, compared with those who'd had COVID-19 and gotten the vaccine.

The Florida case is the second filed by service members in the past two months seeking to negate the vaccine order.

Army Staff Sgt. Daniel Robert and Marine Corps Staff Sgt. Hollie Mulvihill filed a potential class-action suit Aug. 17 in U.S. District Court in Colorado seeking an exception to the order for military members who have recovered from the illness.

The pair argue that service members who have natural immunity, developed from surviving the virus, should be granted a medical exception to the waiver.

Robert and Mulvihill also say, as do the Florida plaintiffs, that the Defense Department is pulling a "bait and switch," saying that the Pfizer vaccine supply used by the DoD is not the one licensed by the FDA and therefore can't be required since it was manufactured under an emergency use authorization.

According to the Food and Drug Administration, the FDA-approved vaccine, licensed under the brand name Comirnaty, is exactly the same as the Pfizer-BioNTech vaccine tested in clinical trials and authorized for emergency use, or EUA. The FDA says they "can be used interchangeably to provide the COVID-19 vaccination series without presenting any safety or effectiveness concerns." By allowing medical providers to use vials of the vaccine manufactured before the full FDA approval, the Pentagon was spared from wasting thousands of doses that doctors say bear no difference to those produced shortly thereafter.

Plaintiffs in both cases say, however, that they can be required to take only the FDA-licensed vaccine under federal law.

Two judges already have recused themselves in the new vaccine mandate lawsuit case -- the first because he owns stock in Pfizer and the second for reasons not explained. Judge Allen Winsor has conducted a hearing on the motion on the temporary restraining order with responses due from the plaintiffs and defendants by Oct. 24.

Attorneys for the plaintiffs also have requested protective orders for their clients to ensure that their identities remain available only to a select few, including the defendants' attorneys.

As of Wednesday, 67 service members have died of COVID-19, including 41 since late July. Just one had been partially vaccinated. Pentagon Press Secretary John Kirby said last week that nearly 97% of active-duty personnel have received at least one dose of the COVID-19 vaccine and 84% were fully vaccinated.

When factoring in the National Guard and Reserve troops, however, the numbers drop: As of Wednesday, 75% of all forces had received at least one dose, including 60% who were fully vaccinated. Pentagon officials say the real numbers are likely higher as they aren’t able to track all the vaccines administered to Guard and reserve forces, many of whom may have gotten their vaccines at civilian facilities and haven’t reported their status to their commands.

While troops are able to apply for religious or medical waivers for the vaccines, few are being approved, according to data provided by the services.

As of August, the Navy had not issued any religious waivers for sailors and Marines, while the Air Force had given 336 administrative exemptions, including an unknown number of religious waivers.

The Army has issued 106 administrative exemptions, according to a report Monday in Military Times.

As of Oct. 7, roughly 103,000 active-duty service members had failed to get their first shot and face pending deadlines: The Air Force has set a Nov. 2 deadline, while active-duty Navy sailors and Marines have until Nov. 28. Active-duty Army soldiers must be vaccinated by Dec. 15.

Service members could face disciplinary actions if they refuse the vaccine. While the Army, Air Force and Marine Corps have yet to release their plans for handling personnel who refuse, Navy officials announced new administrative guidance last week for discharging noncompliant sailors.

Those who refuse the shot may be reassigned while their cases are heard and will not be promoted or given any other orders -- even if they have a pending exemption application, according to the guidance.

The specter of mass military discharges over the vaccine mandate has alarmed the top Republican on the Senate Armed Services Committee. Sen. Jim Inhofe of Oklahoma released a letter Tuesday that he wrote to Austin demanding that the defense secretary "immediately suspend" what Inhofe called a "haphazardly implemented and politically motivated" mandate.

Pointing to a recent Washington Post article on how many troops have yet to be vaccinated, Inhofe suggested that "tens of thousands" of troops could be unable to comply with the mandate by the military services' deadline.

"The lack of strategic foresight in the implementation of the COVID vaccination mandate is inexcusable," Inhofe wrote in the letter. "Plainly stated, no service member, Department of Defense civilian or contractor supporting the department should be dismissed due to failure to comply with the mandate until the ramifications of mass dismissals are known."

Kirby said last week that, while the services may discharge members, Austin "believes there's lots of tools available to leaders, short of using the Uniform Code of Military Justice" to get troops to comply with the mandate.

"He wants to see everybody that can get the vaccine so that they can be safe for themselves and safe for their families, safe for their units," Kirby said.

-- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter @patriciakime.

-- Rebecca Kheel can be reached at Rebecca.Kheel@Military.com. Follow her on Twitter @ReporterKheel.

Related: Pentagon to Require COVID-19 Vaccine for US Troops

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