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2 Navy SEALs, 16 other troops suing Biden, DOD over vaccine mandate

Spc. James Alston holds a dosage of COVID-19 vaccine at the Harrison County Health Department in Gulfport, Miss., Jan. 5, 2021. (U.S. National Guard photo by A. Danielle Thomas)
October 15, 2021

Liberty Counsel announced on Friday it has filed a class-action lawsuit against President Joe Biden, Secretary of Defense Lloyd Austin, Homeland Security Secretary Alejandro Mayorkas over the COVID-19 vaccine mandate. The suit was filed on behalf of 18 service members and several other federal and civilian contractors and employees.

The service members include: Two Navy SEALs, Navy EOD Officer, Navy Senior Chief Petty Officer, Navy Chaplain, two Marine Corps Lieutenant Colonels, Marine Second Lieutenant, Marine Captain, two Marine Lance Corporals, Marine Major, Army Ranger, Army Colonel, Virginia Army National Guardsman, Coast Guard Lieutenant, Air Force Major, Air Force Technical Sergeant.

Additionally, a DOD contractor, federal civilian engineer contractor and employer, federal nuclear contractor employee, Department of Energy civilian nuclear tech joined the lawsuit.

The lawsuit alleges that the federal government’s mandate specifies only FDA-approved vaccines. It adds that the FDA’s approval specifies only Pfizer’s “Comirnaty” vaccine, and not the unnamed Pfizer-BioNTech vaccine that has been available for nearly a year and remains under emergency use authorization.

“All existing vials of the Pfizer-BioNTech COVID-19 Vaccine remain available only under the authorization of the EUA,” the lawsuit alleges. “There are currently no available doses of COMIRNATY in the United States, and COMIRNATY is not being manufactured for production or distribution in the United States at this time.”

The FDA has maintained that the existing Pfizer-BioNTech vaccine is identical to the Comirnaty vaccine and considered interchangeable, and that the only difference is the legal name and the packaging.

In August, FDA granted full approval to the Pfizer and BioNTechs “Comirnaty” COVID-19 vaccine. Biden and Austin then moved to require COVID-19 vaccines for the entire military, and each branch soon followed with its own deadlines.

The Air Force and Space Force deadline for taking the vaccine is Nov. 2 for active-duty members and Dec. 2 for reserves and the Air National Guard. The Navy deadline is Nov. 28 for active-duty sailors and marines, and Dec. 28 for reservists. The Army deadline is Dec. 15 for all active-duty service members, and June 30, 2022 for reservists and National Guard troops.

Service members who refuse to take the vaccine and do not seek an exemption are facing consequences that include reprimand, court-martial, and discharge.

On Friday, the military said 83.7% of 1.4 million active-duty service members were fully vaccinated as of Oct. 14. More than 95% of active-duty members had received at least one dose of the vaccine.

Liberty Counsel pointed to statutes that require certain criteria of emergencies or health and security threats in order to waive emergency use authorization law. It argues that the criteria have not been met, and thus, Biden cannot waive the law to require service members to take the existing emergency use authorized Pfizer-BioNTech vaccine.

“The defendants have ignored their obligations under the EUA statute. There has been no Presidential declaration sufficient to invoke the exceptions of the EUA statute; nor can there be such a declaration under the law and the facts,” Liberty Counsel said.

“There has been no domestic emergency, military emergency, public health emergency, nor material threat of a biological, chemical, radiological, or nuclear agent or a disease attributable to one of those conditions. As such, defendants are prohibited by the EUA statute from mandating that plaintiffs and all similarly situated United States Military members receive or accept one of the COVID-19 vaccines,” they added.