What happened with Fort Liberty soldier who sued over COVID-19 vaccine mandate
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While the Department of Defense is paying more than $1.8 million in legal fees to settle lawsuits filed by service members opposed to the COVID-19 vaccine, a former Fort Liberty soldier’s case and appeal in the matter has been denied.
A U.S. District Court judge in Florida granted a payment this month to a firm representing 26 Navy SEALS and an unidentified colonel who refused the vaccine, as first reported by the Christian Post.
In August 2021, Secretary of Defense Lloyd Austin issued a COVID-19 vaccine mandate for service members that was reversed in December 2022 after Congress approved the National Defense Authorization Act which contained a provision rescinding the mandate.
The Army reported in December that more than 1,800 regular Army soldiers separated from the military for refusing to get the COVID-19 vaccine. It is not known if any of those soldiers were from Fort Liberty because the Army didn't release data from individual installations.
Former Fort Liberty soldier's case
Former Staff Sgt. Daniel Robert, previously a Fort Liberty infantryman, was one local soldier who sought legal action against the vaccine mandate.
Robert joined former Marine Staff Sgt. Hollie Mulvihill, a former air traffic controller at Marine Corps New River Air Station in Jacksonville, in filing a lawsuit in U.S. District Court in Colorado, claiming the mandate violated their constitutional rights.
Named as defendants were Austin and the U.S. Department of Defense; the Department of Health and Human Services and its secretary, Xavier Becerra; and the Food and Drug Administration and its acting secretary, Janet Woodcock.
The lawsuit stated Robert and Mulvihill each contracted COVID-19 and recovered and that their natural immunity should suffice instead of the vaccine.
In its response to the lawsuit, the Army noted that the Department of Defense immunization program has been in place for decades and requires all service members to receive nine immunizations and a possible additional eight “depending on circumstances like deployment.”
The Army said that immunizations “are critical to reducing infectious disease morbidity and mortality in the armed forces where service members must routinely operate in close quarters.”
Colorado District Judge Raymond Moore ruled in favor of the Department of Defense on Jan. 11.
In the order, Moore said Robert and Mulvihill were the only plaintiffs in the case, despite a complaint stating there were “class action allegations.”
Moore said the plaintiffs further needed to show they suffered a “concrete” injury instead of one that is “speculative.”
“Plaintiffs’ contention that they may be subject to discipline for refusing to take a vaccine appears to be based on nothing more than speculation,” Moore said. “Because plaintiffs have not established that their claims are justiciable … they cannot establish a likelihood of success on the merits or a clear and unequivocal right to injunctive relief.”
Daniel and Mulvihill appealed Moore’s order.
Appeal denied
In a Jan. 23 motion, U.S. attorneys Brian Boynton and Cole Finegan argued that Daniel and Mulvihill's case was “moot” because Mulvihill separated from the military in September 2022 and Robert separated in November 2022.
Prior to separating, they filed for medical exemptions that were pending when the first filed their case.
“Plaintiffs are no longer subject to the military’s COVID-19 vaccination requirement — both because they are no longer in the military and because that requirement has been rescinded,” attorneys for the government said.
The response stated that an order granting Daniel and Mulvihill medical exemptions “would have no effect”
Judges in the 10th Circuit Court of Appeals agreed with the U.S. attorneys in a July 6 order.
In the order, Circuit Judge Allison Eid said Mulvihill and Robert’s claim that receiving the COVID-19 vaccine is unlawful is a moot point because of their military separation.
The judges also denied Robert and Mulvihill’s request to recover court costs and attorney fees, because they “failed to discuss it in their briefing,” before the court.
COVID-19 vaccine no longer a mandate for military.
Petition
Robert and Mulvihill disagreed with the ruling in an Aug. 17 petition, arguing that the three-judge panel’s decision “conflicts” with Supreme Court decisions and “prematurely” terminates their rights.
“Service members have a due process right to seek legal redress in court similar to anyone else,” a petition requesting a rehearing before the full court stated. “By closing the courthouse doors to these service members based on overreach by the Court in appellate fact-finding that was in error, the Panel Decision conflicts with Supreme Court and Tenth Circuit precedents.”
Attorneys said Mulvihill and Robert should be allowed to amend their complaint and seek attorney fees. The petition argued that while Mulvihill and Robert are no longer in the military, they are subject to recall.
“Service members are typically subject to recall for years as they continue to serve our country by remaining available, and defendants should not be allowed to continue to penalize them for declining the Covid-19 vaccine,” the document stated.
The plaintiffs argued that while the COVID-19 pandemic has subsided, that “should not moot legal remedies for those harmed by the vaccine and its mandates.”
“There is an exceptional importance allowing litigation concerning this vaccine to seek discovery about it,” the motion stated
In an Aug. 30 order, Judge Jerome Holmes, Chief Judge Carolyn McHugh and Circuit Judge Eid denied the request for the case to be reheard.
Staff writer Rachael Riley can be reached at rriley@fayobserver.com or 910-486-3528.
This article originally appeared on The Fayetteville Observer: Update on ex-Fort Liberty soldier who sued over COVID-19 vaccine mandate
