Military Members Seek Appeal of Dismissal of Vaccine Mandate Challenge

Members of the U.S. Armed Forces who lost their challenge to the military COVID-19 vaccine mandate have filed an appeal seeking a chance to have their day in court.

The most recent appeal argues that the lower court failed to consider relevant legal precedents or the facts of the case in denying the opportunity to be heard that has been allowed to other military personnel.

Secretary of Defense Lloyd Austin ordered the secretaries of every military branch last August to “immediately begin full vaccination” of every service member. Although most members complied, tens of thousands are still unvaccinated. Many of them are seeking exemptions from the mandate. Thousands have been allowed exemptions for non-religious reasons.

The military has been virtually uniform in the refusal to approve or even consider applications for religious exemptions. Many of the religious exemption claims center around the use of fetal cell material from aborted babies in the development and testing of the vaccines. As the military began discharging members for refusing to comply, several lawsuits ensued.

Attorney Todd Callender with the Disabled Rights Advocates law firm filed a lawsuit last August on behalf of two service members against the Department of Defense and the Food and Drug Administration over the mandate. The plaintiffs in the case have natural immunity from COVID-19 through prior infection.

A federal district court dismissed the case in January, citing a separate federal case that found other plaintiffs did not have standing because their administrative claims for exemptions were still pending. Callender filed an appeal with the U.S. Court of Appeals for the Tenth Circuit in Denver, and the court has granted the government defendants until May 27 to file their response.

The appeal argues that the lower court dismissed the case prematurely and did not consider other cases where service members similarly situated to the plaintiffs were granted hearings to challenge the mandate. Callender also argued that the court failed to “even mention the constitutional questions” raised in the case.

The military mandate still survives even though the U.S. Supreme Court blocked the Biden White House’s mandate for private citizens working for employers of more than 100 workers. Other cases brought by military members support the claims of Callender’s clients for legal standing.

Callender’s case seeks an order compelling the military to stop universal vaccination requirements for an “unlicensed product” until and unless the DOD is able to determine whether the vaccine provides any long-term protection or immunity. Other vaccines mandated by the military have historically undergone normal and thorough clinical testing and evaluation before being approved for use.