Service members file class-action lawsuit over vaccine mandate, demand exception for those who already had the virus

Sgt. Andrew Petersen, left, biomedical equipment technician at SHAPE Healthcare Facility, receives a COVID-19 vaccination at the healthcare facility Jan. 8 at Mons, Belgium. The SHAPE Healthcare Facility and Brussels Army Health Clinic conducted their first inoculations of healthcare workers with the Moderna COVID-19 vaccine Jan. 7. (U.S. Army photo by Christophe Morel, U.S. Army Garrison Benelux Public Affairs Office)

Rose L. Thayer

Stars and Stripes

Two service members filed a class action lawsuit against Defense Secretary Lloyd Austin to halt a mandate that all troops receive the coronavirus vaccine and create an exemption for those who were previously infected with the virus because they have “natural immunity.”

Army Staff Sgt. Dan Robert, an infantryman at Fort Bragg, N.C., and Marine Corps Staff Sgt. Hollie Mulvihill, an air traffic controller at Marine Corps Air Station New River, N.C., filed the lawsuit Aug. 17 in the U.S. District Court of Colorado for themselves and on behalf of all other similarly situated service members, Defense Department personnel and contractors who are documented coronavirus survivors ordered to get the vaccine.

The lawsuit named Austin as a defendant alongside Health and Human Services Secretary Xavier Becerra and Janet Woodcock, acting commissioner of the Food and Drug Administration.

Not only did Robert and Mulvihill state they have immunity from a previous coronavirus infection, they claimed “the DoD cannot force them to take a [coronavirus] vaccination under existing military regulations, federal regulations, federal law, and the U.S. Constitution,” according to the lawsuit.

More than 1.2 million service members are fully vaccinated, according to the Defense Department. Many of them began receiving the vaccine voluntarily, but the number who have been vaccinated has increased since Austin announced in August that the coronavirus vaccine would be mandatory.

In September, the Pfizer vaccine, which requires two shots administered three weeks apart, received full FDA approval, and Austin called on the leaders of each military service branch to layout plans to fully vaccinate all service members.

More than 372,000 cases of coronavirus have been reported among Defense Department personnel, including troops, civilians, dependents and contractors, according to the department. Of those cases, 244,300 have been service members and 58 troops died from complications of the virus.

The national Centers for Disease Control and Prevention released the results of a study in August that found vaccination against coronavirus offers higher protection than a previous infection. The Kentucky-based study found non-vaccinated coronavirus survivors were twice as likely to be reinfected as those who were fully vaccinated.

“These data further indicate that [coronavirus] vaccines offer better protection than natural immunity alone and that vaccines, even after prior infection, help prevent reinfections,” according to the CDC.


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