Staff Sergeants File Class Action Suit Against COVID Mandate

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  • Source: UncoverDC
  • 09/19/2023

Two active-duty staff sergeants of US Armed Forces—one Army, one Marine—filed a class-action lawsuit on August 17 against the leaders of the Department of Defense (DoD), the Department of Health and Human Services (HHS), and the Food and Drug Administration (FDA) for being forced to receive a COVID-19 vaccine despite having had and recovered from COVID and acquiring natural immunity to SARS-CoV-2. 

The lead plaintiffs in the lawsuit, Staff Sergeant Daniel Robert, US Army, and Staff Sergeant Holli Mulvihill, USMC, maintain US Sec. of Defense Lloyd Austin "ignored the DOD's own regulations and created an entirely new definition of 'full immunity' as being achievable only by vaccination." Recorded in the United States District Court for the District of Colorado, the brief is filed on their behalf and on behalf of the 220,000 active service members in a similar situation. 

COVID-19 Vaccine Mandate Goes Against Military's Existing Laws

According to the lawsuit, Secretary of Defense Lloyd Austin recently informed military members that he would solicit "Authorization from the President of the United States of America to mandate the COVID-19 vaccine on or about September 15, 2021." The lawsuit points out the military's existing laws and regulations, which state unequivocally: 

Army Regulation 40-562 ("AR 40-562") provides documented survivors of an infection a presumptive medical exemption from vaccination because of the natural immunity acquired as a result of having survived the infection. "General examples of medical exemptions include the following... Evidence of immunity based on serologic tests, documented infection, or similar circumstances." 

Additionally, plaintiffs also seek a declaratory judgment on the individual basis that the Emergency Use Authorization (EUA) DoD COVID-19 vaccine mandate, which they have been forewarned is imminent, "cannot be issued in violation of 10 USC §1107 and its implementing regulations, including DoD Directive 6200.2, the FDA regulation of biologics at 21 CFR § 50 et seq., as well as the law regarding informed consent 50U.S.C. 1520 (The Nuremburg Code)."

Subsequently, on August 30, the plaintiffs asked US District Court Judge Raymond Moore of the Colorado district to grant an emergency temporary restraining order preventing the DoD from vaccinating them and others who can prove they previously had COVID. Plaintiffs claim if they're not given the relief they seek, they will sustain immediate physical harm by being forced to take a vaccine for a virus to which they already have immunity. Moore denied the plaintiff's request two days later on September 1, stating the plaintiff's attorneys had not presented a legal basis for the harm they seek to prevent. Nonetheless, their suit challenging the order continues through standard court procedures. A trial date has not yet been set, according to court records.

The lawsuit highlights that in an August 24 interview, assistant HHS secretary Dr. Admiral Brett Giroir remarked, "So natural immunity, it's very important … There are still no data to suggest vaccine immunity is better than natural immunity. I think both are highly protective." Then on the same day, Austin, who is not a doctor, released a memo that declared:

"Service members are considered fully vaccinated two weeks after completing the second dose of a two-dose COVID-19 vaccine or two weeks after receiving a single dose of a one-dose vaccine. Those with previous COVID-19 infection are not considered fully vaccinated."

The plaintiffs allege that Austin, without going through the proper rulemaking process or offering "a scintilla of evidence to support it," changed the DoD's own regulations in the memo, completely contradicting the plain language of the agency's statutes. The lawsuit warrants this is a direct violation of the Administrative Procedures Act. 

The suit cites long-established precepts of virology that demonstrate "that the immunity provided by recovery from actual infection is at least as pronounced and effective, if not more so, than any immunity conferred by a vaccine." Reinforcing that knowledge, the plaintiffs reference the expert medical opinion of Dr. Peter McCullough, MD, MPH, who agrees that "following the science" as it related to COVID-19 "validates and reaffirms the wisdom of maintaining long-established virology protocol."

The motion states that the current COVID-19 "vaccines" all use novel mRNA or adenovirus technology to stimulate a genetic immune response. All three of the individual COVID-19 vaccines—Moderna, Pfizer, and Johnson & Johnson—prompt a user's genome "to produce abnormal S proteins, which are known and demonstrated to cause mitochondrial damage and fragmentation." The lawsuit continued:

In short, all three Covid 19 Vaccines cause the user's body to produce or over produce S-proteins which represent abnormal growth. On this basis alone, injury to the user's genome may well be prospectively barred by the Americans with Disabilities Act (ADA), whether such user was disabled at the time of the injection or not. 

The Vaccine Adverse Event Reporting System (VAERS) contains adverse event reports for all vaccines administered in the United States going back to July 1, 1990. Before the introduction of COVID-19 EUA vaccines by the Defendant FDA in December 2020, the VAERS system had recorded a total for ALL prior vaccines of 5,039 deaths and 12,053 permanent disabilities. For the week beginning August 13, 2021, the VAERS system showed 13,068 reports of death and 1,031,100 Serious Adverse Events resulting from the COVID-19 EUA vaccines alone.

Pfizer's Six Month, Unblinded Study With No Control Group

Despite Pfizer's recent FDA "approval," the pharmaceutical giant's phase 3 trials—that were used as the basis for the FDA "approval," and are intended to test long-term side effects—are not scheduled to be completed for two more years. The lawsuit claims that following the EUA, the FDA allowed Pfizer (and Moderna and Johnson & Johnson) to turn the trial study from a placebo-controlled, blinded study into an open, observational study, explaining that "inexplicably, in the middle of that phase 3 trial, the manufacturer unblinded the two cohorts, and members of the placebo group were given the opportunity to take the vaccine if they wanted to." And many of them chose to get the vaccine.

The lawsuit references a May 18, 2021 article in the BMJ explaining that it was unclear how the FDA would compensate for not having blinding and placebo-controlled follow-up, adding that "just months ago the agency said these trials were vital." Nonetheless, the article noted, "there is a growing gap of unknown size between any expectation of blinded placebo controlled data, and the reality that within weeks of the vaccines receiving an EUA the unblinding of trials commenced as placebo recipients were offered the chance to get vaccinated." The unblinding was permitted despite pleas for a placebo controlled trial, which was emphasized last October by some in the FDA, who stated:

“Continuation of placebo controlled follow-up after EUA will be important and may actually be critical to ensure that additional safety and effectiveness data are accrued to support submission of a licensure application as soon as possible following an EUA. … Once a decision is made to unblind an ongoing placebo controlled trial, that decision cannot be walked back. And that controlled follow-up is lost forever.”

Stressing the importance of placebo controlled data, the FDA’s Philip Krause—who has pushed back against rapid COVID vaccine development and recently announced his departure from the FDA and—explained last December:

“Very often, it’s the fact that we have that placebo controlled follow-up over time, that gives us the ability to say that the vaccine didn’t cause something at a longer period of time after vaccination.”

As previously reported by UncoverDC, Pfizer's recent FDA "approval" occurred despite the lack of a follow-up FDA advisory committee meeting to one held on December 10, 2020, to discuss and vote on the EUA of Pfizer-BioNTech's COVID-19 vaccine. The complete transcript of that riveting meeting can be found here

Research Confirms Lasting Natural Immunity After COVID Recovery

 study published by the National Institutes of Health (NIH) on January 26 found that the immune systems of more than 95 percent of individuals who recovered from COVID-19 had strong immune responses up to eight months after infection. The study emphasizes that the long-term natural immunity they observed includes several components: 

  • antibodies—proteins that circulate in the blood—that recognize foreign substances like viruses and neutralize them 
  • different types of T cells which help identify and kill pathogens 
  • B cells, which make new antibodies when the body needs them

Antibodies against the spike protein of SARS-CoV-2, which the virus uses to get inside cells, were found in 98% of participants one month after symptom onset. As seen in previous studies, the number of antibodies varied widely between individuals. But, promisingly, their levels remained relatively stable over time, declining only modestly at 6 to 8 months after infection. Study researcher Dr. Daniela Weiskopf from the La Jolla Institute for Immunology stated at the time:

“Several months ago, our studies showed that natural infection induced a strong response, and this study now shows that the responses last. We are hopeful that a similar pattern of responses lasting over time will also emerge for the vaccine-induced responses.”

Dr. Martin Makary, editor-in-chief of MedPage Today and professor at Johns Hopkins University School of Medicine, has publicly argued that mandating vaccines for "every living, walking American" is not well-supported by science. Makary explained that the "notion we have to vaccinate every living, walking American – and eventually every newborn – in order to control the pandemic is based on the false assumption that the risk of dying from COVID-19 is equally distributed in the population. It's not. We have always known that it's very hard for the virus to hurt someone who is young and healthy. And that's still the case." Suggesting that instead of focusing on the vaccinated vs. the unvaccinated, we should be talking about "the immune and the non-immune," declaring: 

“During every month of this pandemic, I’ve had debates with other public researchers about the effectiveness and durability of natural immunity. I’ve been told that natural immunity could fall off a cliff, rendering people susceptible to infection. But here we are now, over a year and a half into the clinical experience of observing patients who were infected, and natural immunity is effective and going strong. And that’s because with natural immunity, the body develops antibodies to the entire surface of the virus, not just a spike protein constructed from a vaccine.” 

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