Federal government files motion for dismissal of military vaccine mandate challenge

·4 min read

PENSACOLA — U.S. Department of Justice attorneys have filed a motion in U.S. District Court for the Northern District of Florida seeking to dismiss a challenge to the military services' COVID-19 vaccine mandate.

The challenge to the mandate was filed by more than a dozen military personnel, including officers assigned to Eglin Air Force Base and Hurlburt Field.

The lawsuit, which names the secretary of defense, the chiefs of staff of the Army, Navy and Air Force, U.S. Department of Health and Human Services Secretary Xavier Becerra, and the acting commissioner of the U.S. Food and Drug Administration (FDA) as defendants, was filed in October as the various military service deadlines for having received a COVID-19 vaccination were approaching.

Earlier in the case: Eglin AFB officers part of federal court challenge to military vaccine mandate

Related: Motion to halt military COVID-19 vaccine mandate fails; federal trial date set

The 18 plaintiffs include two Eglin officers, an officer at Hurlburt Field, and various other military personnel with connections to Northwest Florida. Their filings seek to have the vaccine mandate declared unlawful and also requests a temporary restraining order against implementation of the mandate.

However, as the case has been pending in federal court before Judge Allen Winsor, most of the military's deadlines for getting vaccinated have passed.

An Eglin Air Force Base airman receives a COVID-19 vaccination in 2021. A number of military personnel, including two Eglin officers, have filed a federal lawsuit challenging the military vaccine mandate.
An Eglin Air Force Base airman receives a COVID-19 vaccination in 2021. A number of military personnel, including two Eglin officers, have filed a federal lawsuit challenging the military vaccine mandate.

The services now are working through requests for exemptions, allowed on medical and religious grounds, filed by service members including some of the plaintiffs in the lawsuit.

On the plaintiffs' side, the lawsuit is being pursued with counsel from attorneys associated with Defending the Republic, a conservative nonprofit organization operated by Sidney Powell, an attorney who was deeply involved in unsuccessful efforts to challenge the results of the 2020 presidential election on behalf of former President Donald Trump.

The federal government's motion to have the case dismissed, along with a 63-page memorandum supporting the request for dismissal of the case, contends among other things that the plaintiff's claims can't be heard in the Eleventh Judicial Circuit, which covers federal cases arising in Florida, Georgia and Alabama, because “civilian courts have traditionally deferred to the superior experience of the military in matters of duty orders, promotions, demotions and retentions.”

Citing a ruling in a 2018 case from United States District Court for the District of Columbia, the DOJ attorneys note that the deferential standard afforded to the military "is calculated to ensure that the courts do not become a forum for appeals” for every military member, “a result that would destabilize military command and take the judiciary far afield of its area of competence.”

Recently: Amid surge in cases, Northwest Florida military bases tighten COVID-19 mitigation protocols

The attorneys also argue that if the plaintiffs seeking exemption from the COVID-19 vaccination are exempted, they won't have to get the vaccine. The layers also note that even while those plaintiffs are waiting for a determination of exemption, they are "not subject to any adverse employment or disciplinary action," as they have contended in their lawsuit.

"Until those military procedures and appeals are completely exhausted, the military Plaintiffs cannot seek relief in this Court," the government contends in its filing.

The DOJ counsel also argues that the plaintiffs can't challenge actions of the FDA in connection with the COVID-19 vaccine because "... they are not currently suffering any injury because they are not required to take any vaccine while their exemption requests are pending."

The motion also contends that the plaintiffs "specifically lack standing to challenge FDA approval of the Pfizer vaccine because their injury is not traceable to FDA, nor redressable by an order against FDA."

Much of the rest of the government's memorandum supporting its motion to have the case dismissed addresses technical points with regard to the levels of approval received for the various vaccines used in the effort to address the COVID-19 pandemic.

At one point, the memorandum contends that the facilities where the vaccines are produced "... are subject to the FDA’s good manufacturing practices regulations, and other regulatory requirements ..." and that as a result, the vaccines "... do not present safety and efficacy concerns."

As of Thursday morning, the plaintiffs' counsel had not filed a response to the motion to dismiss.

The case currently is scheduled for trial in September, according to court documents.

This article originally appeared on Northwest Florida Daily News: Department of Justice seeks dismissal of military vaccine lawsuit