Two service members have filed a complaint against federal government officials, including Defense Secretary Lloyd Austin, in hopes that a federal judge will step in and block the military’s COVID-19 vaccine requirement.
Army Staff Sgt. Daniel Robert, and Marine Staff Sgt. Hollie Mulvihill, filed the complaint on Aug. 17 with Colorado’s U.S. district court, alleging that the Defense Department’s personnel vaccine rollout is illegal and unconstitutional. The lawsuit followed DoD’s August announcement that members of the military would be required to take the vaccine. The two troops believe they should be exempt from the vaccine mandate because they already had COVID-19, and they’re pushing to get the case certified as a class action lawsuit.
Court documents were filed just days before the Pfizer vaccine was approved by the U.S. Food and Drug Administration on Aug. 23. The next day, the Pentagon released a memo confirming that mandatory vaccination against COVID-19 would only use drugs with full FDA licensure, though service members could voluntarily take any vaccine on the FDA’s Emergency Use Authorization list and still be considered compliant with the mandate.
Largely basing their argument on the COVID-19 vaccines’ expedited Emergency Use Authorization status, the plaintiffs cited a federal law, 50 U.S.C. 1520, that prohibits DoD from using human subjects for testing of chemical or biological agents. However, the vaccines approved for use in the U.S. were not considered experimental, a claim debunked by Reuters.
The service members call the vaccine requirement “a naked attempt to leverage the Plaintiffs’ military status against them in order to move forward with an unnecessary public health mandate,” according to court documents.
To back up their claim, the two troops cite Army Regulation 40-562, which allows exemptions to vaccine requirements can be granted if there is “evidence of immunity based on serologic tests, documented infection, or similar circumstances.” These regulations were written before the COVID-19 pandemic, which presented unprecedented infection and hospitalization rates across the country.
The Centers for Disease Control and Prevention recommends the COVID-19 vaccine for everyone over 12 years old — including people that have already had the disease. In August, the agency released a study which found that unvaccinated people who had already had COVID-19 were more than twice as likely than vaccinated people to be reinfected. Additionally, previous research from the CDC found that unvaccinated people are 11 times more likely to die from the infection.
Robert and Mulvihill also make the argument that the vaccine should not be compulsory if alternative treatments are available. They list Ivermectin — an anti-parasite medication that is primarily used to treat roundworms that has not been proven to be effective against COVID-19 — as a viable alternative. Ivermectin is not approved to treat COVID-19 and no reliable evidence supports its use for that purpose, according to researchers across universities in Germany.
However, one of the plaintiffs’ requests in the complaint is that the court “find that the use of investigational new drugs or drugs unapproved for their applied use is illegal.”
In addition to asking the court to declare the vaccine requirement illegal and exempt service-members from it, the plaintiffs ask the court to award them money for their attorneys’ fees and “any other relief” deemed appropriate. Both service members are based in North Carolina.
Leila has covered global military and security operations from across the U.S., the Middle East, and Latin America.