Two staff sergeants, one Army, one Marine, have filed a lawsuit against three federal agencies, challenging plans to conduct mandatory COVID-19 vaccinations of military troops.
But their complaint could reach members of all the military branches who have had COVID, recovered and don’t want to take the vaccine.
That’s because the military’s own regulations seem to say they don’t have to.
Army Staff Sgt. Dan Robert, a drill sergeant at Fort Bragg, North Carolina, and Marine Staff Sgt. Hollie Mulvihill, an air traffic controller at Marine Corps Air Station New River, North Carolina, filed their lawsuit Aug. 17 as Secretary of Defense Lloyd Austin announced he would seek approval to mandate the COVID-19 vaccine for all troops starting Sept. 15.
The lawsuit is lodged against the Department of Defense, the Department of Health and Human Services and the Food and Drug Administration.
On Aug. 30, the two plaintiffs asked U.S. District Court Judge Raymond Moore of the Colorado district to grant a temporary restraining order halting the vaccinations as legal questions are resolved.
On Sept. 1, Moore denied the request for the restraining order, writing that the plaintiff’s attorneys had not shown a legal basis for the harm they seek to prevent.
He noted that the vaccine has been approved by the U.S. Food and Drug Administration and millions of Americans have received the vaccination with no harmful side effects.
The most recent Pentagon data, posted Sept. 1, show an estimated 1.3 million of the 1.9 million active duty servicemembers were either partially or fully vaccinated.
Although the judge did not choose to temporarily block mandatory vaccinations, their suit challenging the order continues through normal court procedures. A trial date has not yet been set, according to court records.
At issue, Dale Saran, one of the plaintiff’s attorneys, told Military Times, is the Defense Department following its own rules.
Army Regulation 40-562 “presumptively exempts from any vaccination requirement for a service member that the military knows has had a documented previous infection,” according to the lawsuit.
A June 13 Army Medical Command information paper obtained by Military Times cites the same regulation and others before spelling out that the following is one of the authorized medical exemptions:
“Evidence of immunity based on serologic tests, documented infection, or similar circumstances.”
That immunity, Saran argues, can be obtained by having had the virus.
“If you get the virus and survive it, that’s as good as it gets,” he said.
Some of the language in the orders that Saran has cited indicates that the more than 230,000 service members who have tested positive for COVID-19 should not be required to take the vaccine.
But Saran said that’s not what he’s been hearing from troops who have been calling his and his co-counsels’ offices.
As their case worked through the legal process, Austin released a memorandum Aug. 24 that ordered the secretaries of each military department — Army, Navy and Air Force — to “immediately begin full vaccination of all members” on active duty, reserve or Guard status, according to the memo.
The memo notes mandate exceptions.
“Mandatory vaccination of Service members will be subject to any identified contraindications and any administrative or other exemptions established in the Military Department policy,” Austin wrote.
Military Times sought clarification on whether “natural immunity” — the immunity received by a person who has contracted a virus and recovered — was covered in the exemptions noted in the memo.
Pentagon staffers did not provide a response as of press time Friday.
Todd South has written about crime, courts, government and the military for multiple publications since 2004 and was named a 2014 Pulitzer finalist for a co-written project on witness intimidation. Todd is a Marine veteran of the Iraq War.