Military Mandate Case

Military Mandate Case

Military Mandate Case

Re: the Legality by the DoD to force Covid Injections unto Military Personal who Object on Religious Grounds

 

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Facts of the Case

  • Date Filed: Oct. 15, 2021
  • Location: Florida, USA
  • Court: US District Court, Middle District of Florida
  • Case #: 8:21-cv-2429-SDM-TGW
  • Plaintiffs: Navy Seal 1, et al
  • Plaintiff’s Lawyer: Liberty Counsel
  • Defendant: Lloyd Austin, DoD secretary
  • Trial Type: Human Rights
  • Judge: Steven Merryday
  • Status: Ongoing
  • Verdict: TBD


*updated Apr 27, 2022

 

Background

Liberty Counsel on Friday (Oct 15, 2021) announced a class action lawsuit on behalf of members of all five branches of the U.S. military – the Army, Navy, Air Force, Marines and Coast Guard – against President Joe Biden over his orders they take the experimental COVID shots or face dishonorable discharge. [1]

“The Biden administration has no authority to require the COVID shots for the military or for federal employees or civilian contractors,” explained Mat Staver, Liberty Counsel chairman. [1]

“Nor can the Biden administration pretend that the federal Religious Freedom Restoration Act and the First Amendment do not apply to its unlawful mandates. The commander-in-chief must end this shameful treatment and abuse of our brave military heroes. Forcing the COVID shots without consent or consideration for their sincere religious beliefs is illegal.” [1]

It seeks a temporary restraining order preventing Biden and his appointees from “enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with the Federal COVID-19 Vaccine Mandate…” [1]

Other defendants are Secretary of Defense Lloyd Austin and Secretary of Homeland Security Alejandro Mayorkas. [1]

Liberty Counsel said the non-military plaintiffs include a Department of Defense contractor who has conducted Intelligence, Surveillance, and Reconnaissance quantitative and qualitative assessments and studies, whose assessments are briefed to DOD senior leadership to inform decisions on future employment, allocation, and procurement; a federal civilian engineer employed by a large military defense contractor that provides LCD screens used in United States Armed Forces aircraft; a federal civilian contractor employer whose company develops and supports military weapons systems, including current and next generation land vehicles for the Army and next generation Navy vessels; a federal nuclear contractor employee who is a young woman opposed to abortion and who desires to have children of her own one day; and a Department of Energy Civilian Nuclear Tech who works at the Los Alamos National Laboratory. [1]

Liberty Counsel has been providing legal assistance to more than 700 service members from the Army, Air Force, Space Force, Navy, Marine Corps and Coast Guard. Liberty Counsel maintains an internal “Service Member Final Denial List” for service members who have contacted Liberty Counsel and whose final Religious Accommodation Request appeals have been denied. Based on this list alone, the U.S. military will continue to lose highly qualified and experienced personnel. [3]

Liberty Counsel Founder and Chairman Mat Staver said, “Liberty Counsel represents plaintiffs from all branches of the military who were denied religious exemptions from the COVID shot mandate. The military has violated the Constitution and the federal Religious Freedom Restoration Act with this unlawful COVID shot mandate. The abuse of military heroes is inhumane and unlawful. The Department of Defense acts likes it is above the law. This abuse and unlawful action must end.” [3]

 
The Plaintiffs:

The action in U.S. District Court in Florida is on behalf of two Navy SEALs, a Navy EOD Officer, a Navy Senior Chief Petty Officer, a Navy Chaplain, two Marine Lt. Colonels, two Marine Lance Corporals, an Air Force Major, an Air Force Technical Sergeant, an Army National Guardsman, an Army Colonel, and a Coast Guard Lieutenant. [1] As of March, 30 plaintiffs are listed [4]

The individuals for whom the case was filed are not named, but in a sworn statement on Navy chaplain explained,

“I personally observed (and the Sailors told me in the course of counseling about) tremendous amounts of coercion, bullying, censorship, and intimidation being brought forth by the command to bear against the personnel who expressed objections of any kind to the COVID shot mandates, including religious objections…And clearly, the military has lost more lives to the increase in suicide from 2020-2021 (at least 1,012) than to all of COVID in 2 years (~52), but suicide has not been a focus.” [1]

  • One plaintiff is a U.S. Marine Corps Lieutenant Colonel who faced immediate and irreparable harm beginning today. Her appeal for religious exemption was denied. Today she was to be added to the Officer Disciplinary Notebook, and her command selection withdrawn, irreparably damaging her career. This event would have begun the process of her ultimate discharge from the Marine Corps.   [5]
  • Another plaintiff, a U.S. Navy Command Surface Warfare Officer, faced immediate discipline on February 3, at which time he would have been removed from command of his ship, irreparably damaging his career because he was denied a religious exemption from the COVID shot. [5]
  • Also under Navy SEAL 1 v. Austin, Liberty Counsel is representing a cadet at the U.S. Air Force Academy who is seeking legal relief after the Colorado Springs-based school ordered him to choose either the COVID-19 vaccination or “voluntary” resignation from the Academy. [6]

The unnamed cadet, according to Liberty Counsel, believes that God has called him to serve in the Air Force – but also holds a sincerely held religious belief that he shouldn’t receive any of the COVID shots because of their connections to abortion. [6]

Gordon Klingenschmitt is a former Navy chaplain who attended the Air Force Academy and runs the Pray In Jesus Name project. He tells AFN

“Cadet X” isn’t the only military cadet taking a stand against the mandate. “I’m told now 16 cadets at West Point and an equal number at the Air Force Academy are in danger of being separated because of their religious views,” he concludes. [6]

 
How this case is different from the Supreme Court Ruling

On Friday, the U.S. Supreme Court granted a partial stay, that focused solely on deployment, in the case of Navy SEALS 1-26 v. Austin. Although the names of the cases can be confusing, Liberty Counsel does not represent the case on which the Supreme Court ruled last Friday but does represent about 30 plaintiffs from all military branches seeking class certification in Navy SEAL 1 v. Austin. [7]

In its order last Friday, the Supreme Court issued a partial stay of the preliminary injunction in Navy SEALS 1-26 only “insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions.” [7]

In contrast, the preliminary injunction in Liberty Counsel’s case, Navy SEAL 1 v. Austin, enjoins the Department of Defense (DOD) and the respective military branches “(1) from enforcing against Navy Commander and Lieutenant Colonel 2 any order or regulation requiring COVID-19 vaccination and (2) from any adverse or retaliatory action against Navy Commander and Lieutenant Colonel 2 as a result of, arising from, or in conjunction with Navy Commander’s or Lieutenant Colonel 2’s requesting a religious exemption, appealing the denial of a request for a religious exemption, requesting reconsideration of the denial of a religious exemption, or pursuing this action or any other action for relief under RFRA or the First Amendment.” [7]

As Judge Merryday noted, “[t]he operative language of the preliminary injunction is direct and specific,” and “narrowly and specifically protects Navy Commander and Lieutenant Colonel 2 (1) from enforcement of an order to either accept vaccination or undergo discipline, including possible separation from service, and (2) from any adverse action that is retaliatory.” Indeed, “[a]ny interpretation to the contrary is wrong.” The defendants “remain at liberty to issue commands, assignments, orders, and the like in the normal course of business.” The “injunction remains indifferent to that non-retaliatory exercise of command authority.” [7]

This preliminary injunction is more narrow than the Texas preliminary injunction which the Supreme Court considered, as it limits defendants from enforcement of an order to either accept vaccination or undergo discipline (which was not challenged before the Supreme Court or in Liberty Counsel’s case before the Court of Appeals), and from taking retaliatory action on the basis of a RFRA claim. [7]

 

Significance

This is an important case that challenges the Rights of the Individual over the Power of the State

 

Plaintiff’s Argument

The plaintiffs all hold sincere religious beliefs against the COVID shots on the basis that their body is the temple of the Holy Spirit and to defile it is a sin against God. In addition, the plaintiffs do not want to participate directly or indirectly or otherwise be associated with the destruction of human life through abortion by injecting a product that contains or was tested or developed with aborted fetal cell lines. The plaintiffs have all submitted religious exemption requests from a COVID-19 injection which have been unlawfully denied. [8]

The COVID shots cannot be mandatory under the federal Emergency Use Authorization law, and the plaintiffs’ free exercise of religion is protected by the First Amendment. In addition, their free exercise of religion is protected under the federal Religious Freedom Restoration Act of 1993 (RFRA). Regarding RFRA, the Supreme Court wrote,[8]

“That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases” (emphasis added).  [8]

 

Defendant’s Argument

…More information is needed…

 

The Proceedings

(see here for a detailed accounting of the proceedings)

Over the course of several months, the presiding Federal Judge Steven Merryday granted several stays to get vaccinated to the service members. The Judge was also sympathetic to the arguments of the plaintiffs and critical of the DoD’s reasoning. The judge also granted anonymity to 2 plaintiffs [4]

While setting a hearing for February 10, Judge Merryday stated he searches in vain for any justification for the military’s refusal to grant accommodations. He says the DOD is “most unlikely” to meet its burden, and forecasts that he will rule against the government. Judge Merryday wrote, in part: [5]

“The record in this action establishes that the two service members are very likely to prevail on their claim that their respective branch of the military has wrongfully denied a religious exemption from COVID-19 vaccination. The record creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing and without the showing required under RFRA (while simultaneously granting medical exemptions and permitting unvaccinated persons to continue in service without adverse consequence). One struggles to imagine a wholesome and lawful explanation for the results evidenced in this record. The military is well aware of the frailty of their arguments in defense of their practices. Those arguments both procedural and substantive, are rejected in an action that is distinctively parallel to this action. U.S. Navy Seals 1–26, et al v. Biden, 4:21-cv-1236-O, Doc. 66, 2022 WL 34443 (N.D. Tex. Jan. 3, 2022) (characterizing the military’s review of requests for a religious exemption as “theater” and granting relief to the service member plaintiffs). Rejection on the same or a more encompassing basis is likely in this action (especially if the conduct of the military continues along the present lines).” 

Judge Merryday’s order continues: [5]

“The two moving service members face either (1) a most-likely-unlawful deprivation of their accumulated status and standing in the United States military, as well as prospective advancement and benefits, or (2) deprivation of their constitutional and statutory rights to Free Exercise and the statutory right to receive a religious exemption unless the military can meet the statutory burden of proof, which the military has not and likely cannot. On the other hand, the military faces a trivial, if any, prospect of material injury as a result of permitting the service members continued service under the same terms and conditions and with the same privileges and emoluments as currently prevail, especially because the military permits a large group of unvaccinated persons to serve without adverse consequence…Finally, the military is most likely unable to establish, and certainly has not established, that permitting the relatively small number of RFRA objectors, even if every request for exemption (much less the two at issue in this motion) were sincere and successful, to serve without adverse consequences to their standing and the terms and conditions of their service will adversely affect the public’s interest in the maintenance and readiness of the nation’s military forces. In fact, the public undoubtedly has some considerable interest in maintaining the services of skilled, experienced, highly trained, patriotic, courageous, and esteemed service members, such as the two moving service members, in whom the public has an immense financial investment and who are not, to say the least, readily replaceable.” [5]

 

Judge Merryday pressed the Department of Justice counsel about the fact that the military is not showing that removing service members is the least restrictive means available. Judge Merryday also noted that he has to weigh the adverse impact of removing a highly qualified and skilled service member who is not easily replaceable against the minimal, if any, benefit of a “vaccine” in view of the fact that it is not preventing the transmission of Omicron. He pointed out that the military is now at its highest rate of vaccinated service members and also at the highest rate of COVID cases. With the shot not preventing transmission, “why,” he asked, “cannot a small number of service members remain unvaccinated because of their religious beliefs?” [9]

 

Judge Merryday previously ordered each branch of the military to file a detailed report regarding religious exemptions from the COVID-19 shot every 14 days beginning Friday, January 7, 2022. The documents prove that the military continues to deny religious exemptions while granting medical exemptions. According to the court, after three filings, [10]

“the Navy has denied 81 appeals and granted none, the Marine Corps has denied 119 appeals and granted 3, and the Air Force has denied 443 appeals and granted 1 appeal (and granted 8 initial requests). According to the notice, neither the Army nor the Coast Guard has resolved an appeal.” [10]

 
Witnesses & Experts

On March 10,2022 the court heard several witnesses.

Liberty Counsel presented compelling testimony from the Navy Commander and three military flight surgeons, Lt. Col. Peter Chambers, Lt. Col. Teresa Long and Col. (Ret.) Stewart Tankersley. [3] one of whom was injured by the COVID shots. [3]

In contrast, the Department of Defense (DOD) declined to present witnesses. The Department of Defense counsel refused to produce the Commodore of the Navy to be subjected to cross-examination. [3]

Dr. Long testified in federal court that she was ordered by high-level command not to discuss the controversy over Department of Defense data indicating a massive spike in serious injuries and illnesses among military personnel when the vaccines were rolled out in 2021. [2]

“I have so many soldiers being destroyed by this vaccine. Not a single member of my senior command has discussed my concerns with me,” she said amid tears. “I have nothing to gain and everything to lose by talking about it,”

She added that she is willing to lose her career “because I am watching people get absolutely destroyed.”

She said she regularly has been contacted by military personnel who have been injured by the shots, and most are pilots, who “have to meet one of the highest fitness standards.”

Amid the pressure to get vaccinated, Long described an atmosphere of low morale in which there have been at least two suicides.


The flight surgeon Chambers testified that he was ordered to make sure troops received the shots and was told that religious exemptions would be denied. He said that up to 80% of military personnel have contracted COVID-19 despite having had two shots. However, he said, among the unvaccinated, the infection rate was 15%. Chambers said he has had to delay his plan to retire in 2023 because he developed demyelination of his central nervous system after being vaccinated. [2]

Tankersley, a recently retired flight surgeon, said he has witnessed during the pandemic an unprecedented “suppression of scientific dialogue.” He said the shots are neither safe nor effective, explaining the delivery mechanism of the mRNA vaccines bypasses the natural immune system and creates inflammation that can inhibit the body’s innate immunity. Tankersly said he has treated more than 200 COVID patients with no fatalities using treatments such as ivermectin. Meanwhile, the Defense Department insists that the only way to combat COVID is to force vaccination and get rid of personnel who won’t comply. [2]

 

Relevant Prior Judgements/ Cases

On September 9, 2021, Joe Biden signed an executive order attempting to force COVID shots on more Americans, including federal employees, all private employers with 100 or more employees, health care workers, educators and even children. [11]

The courts recognize the constitutional protections against these lawless mandates and are striking them down one by one. For example, here’s the various courts’ recent actions: [11]

  • 11-30-21 – Judge Gregory F. Van Tatenhove (KY) grants preliminary injunction against mandate for federal contractors in KY, OH, TN.
  • 12-7-21 – Judge Stan Baker (GA) grants nationwide injunction against mandate for federal contractors in GA, AL, ID, KS, SC, UT, WV.
  • 12-15-21 Judge Dee Drell grants preliminary injunction regarding contracts and grants with the states of IN, LA, MS.
  • 12-20-21 – Judge David Noce (MO) grants preliminary injunction against mandate for federal contractors in AK, AR, IA, MO, MT, NE, NH, ND, SD, WY.
  • 12-22-21 – Judge Steven Merryday (FL) grants preliminary injunction against mandate for federal contractors in FL.
  • 12-31-21 – Judge James Wesley Hendrix (TX) issues preliminary injunction against Head Start shot mandate in TX.
  • 1-1-22 – Judge Terry A. Doughty (LA) grants preliminary injunction against Head Start mandate in AL, AK, AZ, AR, FL, GA, LA, IN, IA, KS, KY, MS, MO, MT, NE, ND, OH, OK, SC, SD, TN, UT, WV, WY.
  • 1-13-22 – The U.S. Supreme Court (6-3) issues a stay against OSHA mandates. OSHA has now repealed the mandate.
  • 1-21-22 – Judge Jeffrey Brown (TX) grants preliminary injunction against mandate for federal workers nationwide.

 

Decision

 

Media


US Navy Doctor Whistleblower on Vaccine Deaths -Apr 13, 2022

source: odysee\shortXXvids


US Navy Dr Long Testifies to Sen Johnson’s Panel on Vaccine Injuries

source: nicorster


Camp Pendleton Marine joins legal fight for vaccine exemptions

source: ABC 10 News


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Florida Ends Mask Mandate Case

Florida Ends Mask Mandate Case

Florida Ends Mask Mandate Case

Re: the Legality of CDC’s authority to mandate masks

 

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Facts of the Case

  • Dates: (filed) July 12, 2021
  • Location: Tampa, Fla, USA
  • Court: US District Court, Middle District of Florida, Tampa Div
  • Case #: 8:21-cv-01693 \ 8:21-cv-1693
  • Plaintiff: HFDF, Ana Carolina Daza & Sarah Pope
  • Plaintiff’s Lawyer: Hadaway
  • Defendant: Joe Biden, CDC, HHS
  • Trial Type:
  • Judge: Kathryn Kimball Mizelle
  • Status: Decided (April 18, 2022)
  • Verdict: for the Plaintiff


*updated April 27,2022

Background

The lawsuit – challenging the validity of Mask Mandates–  was brought by two Florida residents who argued that being required to wear masks on airplanes aggravated their anxiety—a condition that is not exempted from forced masking under the mandate. They are represented by the Health Freedom Defense Fund (HFDF). [3]

HFDF is a not-for-profit public benefit Wyoming corporation with its headquarters in Sandpoint, Idaho. HFDF is a member organization that seeks to advocate for and educate the public on the topics of medical choice, bodily autonomy, and self-determination, and
that opposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will. [5]

The CDC is not a nationwide police force, and is not empowered to make laws,” said Leslie Manookian, Founder and President of Health Freedom Defense Fund. “Nevertheless, with no legal authority to do so, these unelected, unaccountable technocrats have forced every citizen in America to wear a mask when they travel. We believe that Americans have the right to think for themselves and make their own health care choices without the meddling of government. Americans must not be dictated to in this manner by anyone, let alone unelected, unaccountable technocrats at CDC.” [4]

 
the order

The mask-wearing requirement had been initially imposed in early 2021, shortly after President Joe Biden took office in an effort to slow the spread of COVID-19. [1] – Executive Order Number 13998 issued by Defendant Biden on January 21, 2021 [5].

Shortly thereafter, the nationwide mask mandate was issued by the CDC  –  a department of HHS, on January 29, 2021, entitled, “Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs” (the “Mask Mandate”), 86 Fed. Reg. 8025, [5]

Just last week, the (CDC) agency extended the transportation mask mandate (which had been set to expire originally on April 18) through May 3 — allowing officials to take more time to study the BA.2 subvariant of COVID-19. [1]

 
The Problem with Mask Mandate

“The fact is that the police power — that is the power to regulate the health, safety and welfare of Americans — was specifically reserved to the States by our Constitution,” said George Wentz of the Davillier Law Group, legal counsel for the Plaintiffs. “With the mask mandate, not only does the CDC usurp the role of the States by attempting to exercise general police powers, but at the same time it steps into the shoes of Congress and makes a nationwide law. We are confident that the CDC is way out of bounds here, and the Court will strike down the mask mandate.” [4]

Masks have been approved for use by the general public under an emergency use authorization (EUA) and are considered investigational products under the law. Their efficacy has not been proven, and their short and long-term side effects have not been studied. Recent studies have shown that masks do more harm than good, and expose the wearer to levels of carbon dioxide well above levels permitted by OSHA in the workplace. [4]

Members of Health Freedom Defense Fund feel strongly that they should not, and cannot, be forced to wear masks and that no one should have the power to force another person to cover their airway. [4]

 
Airline CEO’s Call to End Masks

Last month (March 2022), governors from 21 states sued the Biden administration to end the federal public transportation mask mandate, arguing that the continued enforcement “harms the states” and interferes with some local laws. [1]

In an open letter released by the travel-industry lobbying group Airlines for America, the group is calling on the Biden administration to “sunset federal transportation travel restrictions.” The group argues that the restrictions no longer reflect the “realities of the current epidemiological environment.” [2]

The letter was signed by the leaders of 10 U.S. companies, including six of the largest airlines in the country: Alaska Airlines, American, Delta, JetBlue, Southwest and United. [2]

It makes no sense that people are still required to wear masks on airplanes, yet are allowed to congregate in crowded restaurants, schools and at sporting events without masks, despite none of these venues having the protective air filtration system that aircraft do,” wrote the CEOs of all major airlines in a letter to the Biden administration. [3]

 
21 States Challenge the Mask Mandate

Governors from 21 states are suing to end the federal public transportation mask mandate, claiming the continued enforcement “harms the states” and interferes with some local laws. [7]

“President Biden’s shortsighted, heavy-handed and unlawful travel policies are frustrating travelers and causing chaos on public transportation,” Florida Attorney General Ashley Moody, who is leading the states’ effort, said in a statement. “It’s long past time to alleviate some of the pressure on travelers and those working in the travel industry by immediately ending Biden’s unlawful public transportation mandates.” [7]

Joining the mostly Republican-led effort are three states with Democratic governors — Kansas, Kentucky and Louisiana. [7]

Last month (Feb 2022), leaders in Texas filed their own, similar complaint against the Biden administration. [7]

  • The Centers for Disease Control and Prevention’s (CDC) mandate was unlawfully issued. It was not authorized by Congress, and the CDC did not put the mandate up for notice and comment, which is ordinarily required for regulations like this. Yet a person’s failure to comply with the Administration’s mask mandate carries criminal penalties. [8]

Biden’s repeated disregard of the individual liberties of Texans is not only disrespectful to the U.S. Constitution, it is also troublesome that any president thinks they can act above the law while hardworking Americans standby,” said Attorney General Paxton. “President Biden cannot continue governing through executive edicts. Now is the time to strike down his administration’s air-travel mask mandate. I’m proud to stand alongside my friend Congresswoman Van Duyne and her counsel at TPPF to protect Texans’ liberty and the rule of law.” [8]

(Read a copy of the Texas complaint here)

Many states and cities have already lifted COVID-19 restrictions as they’ve seen a decline in cases and hospitalizations locally. [7]

The states’ lawsuit says the CDC should end its mandate in light of this trend. [7]

“More recently, even lockdown States like California have announced the end of their mask mandates. Still, the CDC unabashedly leaves its mandate intact,” their complaint says. [7]

 

Significance

This challenge could undo the power of the Federal government to enforce Mask Mandates

 

Plaintiff’s Argument

(from the original complaint) [5]

5. Plaintiffs challenge the Mask Mandate pursuant to 5 U.S.C. § 706(2) of the Administrative Procedure Act (the “APA”) on grounds that it:

a. is not in accordance with and exceeds the CDC’s statutory and regulatory authority under 42 U.S.C. § 264(a) and 42 C.F.R. §§ 70.2,
71.31(b), and 71.32(b);

b. is a rule that was enacted without observance of notice and comment procedures required by the APA; and/or

c. is arbitrary and capricious, in that it exempts children under age 2 without regard to scientific evidence of the impact of prolonged mask use on persons of all ages.


6. Alternatively, if the Mask Mandate does not exceed Defendants’ statutory and regulatory authority, then 42 U.S.C. § 264 (a) constitutes an unlawful delegation of legislative authority.


7. As well, Plaintiffs challenge the Executive Order on grounds that it constitutes an improper exercise of legislative authority by the Executive Branch, and that it further improperly asserts a general police power that has traditionally been relegated to the States, in derogation of the Separation of Powers under the United States Constitution.

Case 8:21-cv-01693 Document 1 Filed 07/12/21 Page 3 of 28 PageID 3

 

Defendant’s Argument]

…More information is needed…

 

Relevant Prior Judgements/ Cases

a Florida Federal Court has struck down the CDC’s cruise line order as unsupported by law, and five justices of the Supreme Court recently appear to have agreed that the CDC over reached with its nationwide eviction moratorium. [4]

 

Decision

U.S. District Judge Kathryn Kimball Mizelle ruled that the federal mask mandate on planes, trains, buses and other modes of public transportation is “unlawful.” [1] and Vacates It [3]

“Within the past two years, the CDC has found within § 264(a) the power to shut down the cruise ship industry, stop landlords from evicting tenants who have not paid their rent, and require that persons using public conveyances wear masks. Courts have concluded that the first two of these measures exceeded the CDC’s statutory authority under §264. … [9]

No court has yet ruled on the legality of the third. At first blush, it appears more closely related to the powers granted in§ 264(a) than either the sail order or the eviction moratorium. But after rigorous statutory analysis, the Court concludes that§ 264(a) does not authorize the CDC to issue the Mask Mandate….” [9]

“Our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” writes Judge Kathryn Kimball Mizelle. [3]

Mizelle wrote in a summary that the Centers for Disease Control and Prevention had exceeded its authority and failed to follow proper rulemaking procedures. [1]

In a 59-page ruling, Mizelle argues that the mandate violates the Administrative Procedure Act, as the agency failed to prove its decision regarding implementing the mandate [1]

The ruling was detailed in analyzing the language of the CDC’s authority as written by Congress in 1944. In particular the meaning of words such as sanitation were scrutinized as to their original meaning– not the re-interpretation by the CDC today. [9]

“One definition it relies upon is even broader, defining “sanitation” as the “applying of measures for preserving and promoting public health.” If Congress intended this definition, the power bestowed on the CDC would be breathtaking. And it certainly would not be limited to modest measures of “sanitation” like masks. It would also justify requiring that businesses install air filtration systems to reduce the risks from airborne contagions or install plexiglass dividers between desks or office spaces. So too, a power to improve “sanitation” would easily extend to requiring vaccinations against CO VID-19, the seasonal flu, or other diseases. Or to mandatory social distancing, coughing-into-elbows, and daily multivitamins….” [9]

Further the infringement on the powers of the state was important. As were the guidance in the statute that Congress authorised the CDC to deal with foreign travel and not domestic\interstate travel. It was also found illegal that the public were not allowed a voice which is required by law.

Finally the judge found the claim by the CDC that masks were needed without providing any evidence to prove this, extremely troubling and highly insufficient to restrict the liberties of all people including the healthy [9]

“Although a closer question than the failure to properly invoke the good cause exception, the Mask Mandate fails this reasoned-explanation standard. Beyond the primary decision to impose a mask requirement, the Mask Mandate provides little or no explanation for the CDC’s choices. Specifically, the CDC omits explanation for rejecting alternatives and for its system of exceptions. And there are many, such that the overall efficiency of masking on airplanes or other conveyances could reasonably be questioned.” [9]

“…the Mask Mandate fails this reasoned-explanation standard. Beyond the primary decision to impose a mask requirement, the Mask Mandate provides little or no explanation for the CDC’s choices. Specifically, the CDC omits explanation for rejecting alternatives and for its system of exceptions. And there are many, such that the overall efficiency of masking on airplanes or other conveyances could reasonably be questioned.” [9]

“The Mandate does not address alternative (or supplementary) requirements to masking, such as testing, temperature checks, or occupancy limits in transit hubs and conveyances. It also does not explain why all masks – homemade and medical-grade – are sufficient. Nor does it require “social distancing [or] frequent handwashing,” despite finding these effective strategies for reducing CO VID-19 transmission…” [9]

“Even if these alternatives were not so obvious that the CDC had to explain its decision to reject them, the Mandate fails to explain other significant choices. For example, the Mandate relies on studies explaining that “universal masking” reduces transmission of COVID-19 at the community level. 86 Fed. Reg. at 8028.” [9]

“But the Mandate does not require universal masking. It exempts individuals who are “eating, drinking, or taking medication” and a person who is “experiencing difficulty breathing” or who is “feeling winded.” It also excludes individuals who cannot wear a mask due to an ADA-recognized disability and all children under two years old. The Mandate makes no effort to explain why its purposes-prevention of transmission and serious illness-allow for such exceptions. Nor why a two-year-old is less likely to transmit COVID-19 than a sixty-two­ year-old….” [9]

“In sum, irrespective of whether the CDC made a good or accurate decision, it needed to explain why it acted as it did. Since the CDC did not explain its decision to compromise the effectiveness of its Mandate by including exceptions or its decision to limit those exceptions, the Court cannot conclude that the CDC “articulated a ‘rational connection between the facts found and the choices made.”[9]

 

Aftermath

Government Reaction

“The agencies are reviewing the decision and assessing potential next steps. In the meantime, today’s court decision means CDC’s public transportation masking order is not in effect at this time,” according to a Biden administration official. [1]

“Therefore, TSA will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time.” [1]

 
Defendant’s Response

“The court agreed with our main arguments and rejected the CDC’s justifications for the mask order,” said Daviller Law Group attorney Brant C. Hadaway. “The judge found that the CDC exceeded its statutory authority, and that the CDC’s interpretation of its authority was not entitled to deference.” [6]

“An agency is also supposed to provide notice and comment and reasonably explain itself,” Hadaway said. “The CDC’s mask order fell short of both requirements.” [6]

“Without any public comment, or serious scientific justification, CDC bureaucrats imposed a sweeping Travel Mask Mandate applying to every American over the age of two,” said HFDF President Leslie Manookian. “There are laws that set boundaries for federal agencies to protect individual freedom and the Court clearly found that CDC exceeded those limits. Unelected officials cannot do whatever they like to our personal freedoms just because they claim good motives and a desirable goal.” [6]

 
Airlines Response

United Airlines has put out an official statement that clarified that it will no longer be enforcing masks on airline travel. [10]

Effective immediately, masks are no longer required at United on domestic flights, select international flights (dependent upon the arrival country’s mask requirements) or at U.S. airports,” UA said in a statement. [10]

Alaska Airlines has also reportedly lifted its mask mandate. [10]

The TSA announced it was no longer enforcing it. [10]

Admin Official: “Today’s court decision means CDC’s public transportation masking order is not in effect at this time. Therefore, TSA will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time” [11]

Both United and American Airlines tell @ABC  they will continue to require masks on board aircraft for customers and employees, “despite the decision by a federal judge on Monday that struck down the federal mask mandate” as they await on more guidance from the US government. [12]

 
more

Liberty Counsel Founder and Chairman Mat Staver said,

“Since the beginning of the COVID pandemic the CDC has unlawfully exceeded its authority and discredited the agency by its contradictory and ever-changing statements. This court decision is yet another blow to the CDC and the Biden administration. Many people have been harassed, punished, and fined over the travel mask mandates stemming from the CDC’s unlawful policy. Any traveler who was punished over this mask mandate should have that punishment reversed. The CDC should be the watch dog to protect public health. However, like the FDA, it has become the lapdog for the pharmaceutical industries and specials interest groups. Liberty Counsel is continuing the fight to get all the shot mandates overturned.” [13]

 


Further Research

Court Documents:
In the news:

 

Media


VICTORY! Meet The Team Behind The CDC Mask Mandate Repeal

source: Odysee\theAmericanJournal


Court Defeats CDC Mask Mandates -Apr 22, 2022

source: odysee\shortXXvids


Masks Off! Should we Applaud?

source: Ron Paul Liberty Report


HFDF Lawyers Discuss Mask Suit & more on CA61

source: Odysee\Corona-Ausschuss


SouthWest Airways Passengers Cheer End of Mask Mandate

source: capitalismmagazine.com


Mask Science according to the Industrial Hygienists

source: tyscienceguy.com


Why Masks Don’t Work Pt. 1 -Apr 5 2022

source: odysee\shortXXvids


Why Masks Don’t Work Pt. 2 -Apr 5 2022

source: odysee\shortXXvids


US Army Doctor Vaccine Whistleblower -Apr 13, 2022

source: odysee\shortXXvids


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Navy Vaccine Exemption Case

Navy Vaccine Exemption Case

Navy Vaccine Exemption Case

Re: the Legality of Mandating Vaccines onto the Military without their Consent & against their Religious Objections

 

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Facts of the Case

aka: U.S. Navy SEALs 1-26 v. Biden

  • Dates: Jan 3, 2022
  • Location: Texas, USA
  • Court: US District Court for the Northern District of Texas
  • Case #: Civil Action # 4:21-cv-01236-O
  • Plaintiff: US Navy Seals, et al
  • Plaintiffs Lawyers: First Liberty Institute
  • Defendant: Biden Administration, DOD
  • Trial Type:
  • Judge: Reed O’Connor
  • Status: Decided
  • Verdict: For the Plaintiff


Background

In response to the Biden Administration’s push to mandate that all military personnel get the covid vaccine, 35 navy seals filed a law suit against the Vaccine Mandate citing religious exemption.

This case arises from the United States Navy’s mandatory COVID-19 vaccination policy. Plaintiffs are thirty-five Navy Special Warfare servicemembers, including SEALs, Special Warfare Combatant Craft Crewmen, Navy Divers, and an Explosive Ordinance Disposal Technician. Compl. 1, 8–9, ECF No. 1. Together, they sue President Biden, Secretary of Defense Austin, Secretary of the Navy Del Toro, and the United States Department of Defense. [2]

In August 2021, the Department of Defense (“DoD”) issued a vaccine mandate directing all DoD service members to be vaccinated against COVID-19.Pls.’ App. 146–47, ECF No. 17. The Department of the Navy also implemented its own mandate requiring all active-duty Navy service members to be fully vaccinated before November 28 or face the “full range” of disciplinary action. Pls.’ App. 149–50, ECF No. 17.For service members assigned to Special Operations duty, the Navy’s vaccination policy reads: [2]

[Special Operations] personnel refusing to receive recommended vaccines… based solely on personal or religious beliefs are disqualified. This provision does not pertain to medical contraindications or allergies to vaccine administration.

By early November, 99.4% of active-duty Navy service members had been fully vaccinated against COVID-19. Pls.’ App. 284, ECF No. 17. Plaintiffs are part of the remaining 0.6%. Representing the Catholic, Eastern Orthodox, and Protestant branches of Christianity, Plaintiffs object to receiving the COVID-19 vaccine based on their religious beliefs. [2]

While it allowed service members to apply for religious exemptions to the mandate, it has not granted a single one. In fact, as of Dec. 17, the religious accommodation requests of at least 29 of the 35 naval plaintiffs had been flatly denied. [1]

The service members who filed the lawsuit represent more than 350 collective years of military service, and more than 100 combat deployments. When they inquired about seeking religious accommodation for the vaccine, the Navy informed many of them that they could face court-martial or involuntary separation if they refused to take the vaccine. [1]

One year ago, Biden told Fox News that COVID vaccines should not be mandatory, telling White House correspondent Peter Doocy at the time that he “wouldn’t demand it to be mandatory.” [3]

“I would do everything in my power, just like I don’t think masks have to be made mandatory nationwide.” [3]

 

Significance

This case asks the question if a soldier has individual rights and if the DoD actively violates those.

 

Plaintiff’s Argument

Berry told (Fox News) host Martha MacCallum that every one of the plaintiffs in the case has a unique individual religious belief, as well as the right to hold and exercise that belief — no matter Biden’s or the Pentagon’s view. [3]

“Many of them object to the fact that the vaccine was tested or developed or produced using aborted fetal cells. Others prayed to God [and said] ‘God, what do you want me to do? And God said no.’”

“It would violate their conscience and religious convictions to get the vaccine. Under the law, that is absolutely protected in this country.”

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

…More information is needed…

 

Decision

Heritage.com explains: [1]

In his order, (Judge) O’Connor granted an injunction against the Biden administration and the Department of Defense, preventing them from enforcing the vaccine mandate against any of the named service members who had applied for a religious exemption.

O’Connor ruled that the blanket denial of their religious waiver requests amounted to a violation of the service members’ rights under the First Amendment and the Religious Freedom Restoration Act.

Under that law, the government may substantially burden a person’s exercise of religion only if it demonstrates that burden is (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest.

For O’Connor, the violation of the law was clear:

Defendants have substantially burdened Plaintiffs’ religious beliefs. The government burdens religion when it ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.’

That is especially true when the government imposes a choice between one’s job and one’s religious belief. Here, Plaintiffs must decide whether to lose their livelihoods or violate sincerely held religious beliefs.

Because they will not compromise these religious beliefs, Plaintiffs have been threatened with separation from the military and other disciplinary action.

According to the First Liberty Institute, the public interest law firm representing the service members, each of the denials appeared to be identical, suggesting the Navy had not taken any of the religious exemption requests seriously.

O’Connor made note of this in his order, calling the process for seeking a religious exemption nothing more than “theater,” stating that the Navy “merely rubber-stamps each denial,” and stressing that “the record overwhelmingly demonstrates that the Navy’s religious-accommodation process is an exercise in futility.”

“The Navy service members in this case seek to vindicate the very freedoms they have sacrificed so much to protect,” O’Connor wrote, adding:

The COVID-19 pandemic provides the government no license to abrogate those freedoms.

There is no COVID-19 exception to the First Amendment.

There is no military exclusion from our Constitution.

The Judgement ends: [2]

This Court does not make light of COVID-19’s impact on the military. Collectively, our armed forces have lost 80 lives to COVID-19 over the course of the pandemic. Defs.’ App. 263,ECF No. 44-3.  But the question before the Court is not whether a public interest exists. Rather, this Court must address whether an injunction will disserve the public interest. An injunction does not disserve the public interest when it prevents constitutional deprivations. Jackson Women’s Health, 760 F.3d at458 n.9.

The Plaintiffs’ loss of religious liberties outweighs any forthcoming harm to the Navy. Even the direst circumstances cannot justify the loss of constitutional rights. Fortunately, the future does not look so dire. Nearly 100% of the Navy has been vaccinated. Hospitalizations are rising at a much slower rate than COVID-19cases. COVID-19treatments are becoming more effective and widely available

The Judge also quoted George Washington, referring to the rights of soldiers as separate from the state:

When we assumed the Soldier, we did not lay aside the Citizen.” (1775).

Those words are carved into the marble of the Memorial Amphitheater in the Arlington National Cemetery.

 

Aftermath

Mike Berry, general counsel for First Liberty Institute, said:

Forcing a service member to choose between their faith and serving their country is abhorrent to the Constitution and America’s values … . Punishing SEALs for simply asking for a religious accommodation is purely vindictive and punitive. 

We’re pleased that the court has acted to protect our brave warriors before more damage is done to our national security.

The next stop in the litigation is likely to be an appeal by the Department of Defense and the Biden administration to the U.S. Court of Appeals for the 5th Circuit.

  • Other federal court challenges to various COVID-19 vaccine mandates are ongoing.
  • On Jan. 7, the Supreme Court is set to hear oral arguments in a set of high-profile, consolidated cases on the Biden administration’s vaccine mandates for private-sector entities with 100 or more employees, and for health care facilities that receive Medicaid and Medicare funding.
  • The Heritage Foundation, a petitioner in the case challenging the private-sector vaccine mandate, has asked the court to invalidate the government’s order. (The Daily Signal is the news outlet of The Heritage Foundation.)


Further Research

Court Documents:
In the news:

 

Media

Pilots sue Biden Vaccine Mandate

source: Real America’s Voice

Covid vaccine deadline today for U.S. military

source: CNBC Television

Navy’s Vaccine Mandate

Source: KRIS 6 News

 

References

  1. Court Delivers Win to Military Members Denied Religious Exemptions From Pentagon Vaccine Mandate
  2. Court Ruling
  3. Biden showing ‘religious hostility’ toward SEALs at center of vax mandate suit

 

Keyword

Administration, Biden, Constitution, Department of Defense, District Court for the Northern District of Texas, DOD, Exemption, First Amendment, First Liberty Institute, Military, Naval Special Warfare personnel, Navy, O’Connor, Religious, Religious Freedom Restoration Act, Seals,


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