New River Marine, N.C. Marine officer plaintiffs in military vaccine mandate lawsuits

As the deadline for all U.S. troops to get vaccinated against COVID-19 approaches, lawsuits challenging the mandate are heating up.

Whether it's attorneys who served at local Marine bases leading litigation, or multiple North Carolina Marines involved as plaintiffs, the Jacksonville area is connected to the cases.

Religious freedoms suit filed

On Nov. 9, First Liberty Institute filed a lawsuit — SEALs v. Biden — in a federal court in Texas against President Joe Biden, Secretary of Defense Lloyd Austin, the Department of Defense (DoD) and Secretary of the Navy Carlos Del Toro on behalf of 35 Navy SEALs and special warfare service members.

The complaint, which claims a violation of the service members’ first amendment right to religious freedoms, said the plaintiffs “object to receiving a COVID-19 vaccination based on their sincerely held religious beliefs." The case also argues that the SEALs are being harassed and punished even as their religious exemptions are pending.

In a interview with The Daily News, Mike Berry, a lieutenant colonel in the Marine Corps Reserve and the lead attorney on the case, said the Navy is discriminating by not granting any religious exemptions from the COVID-19 vaccine.

“There is a Navy Special Warfare Command regulation that states that even if their religious exemption is approved, it will render them medically disqualified,” Berry said. “Once that happens, they forfeit their special operations pay [and are] removed from the special operations community … They’re really in a Catch 22.”

Berry, who spent time at Camp Lejeune and Cherry Point while active duty, said he expects to see movement in the case in the coming weeks.

“When you join the military, we all know that there are certain freedoms you give up but you don’t give up your religious freedom,” Berry said. “We have strong protection in the law for religious freedom, even in the military.”

Lawsuits challenge legality of mandate

Dale Saran, a retired Marine Corps major who was a pilot with Marine Light Attack Helicopter Squadron 269 at Marine Corps Air Station New River in the 1990s, is one of two lawyers representing a North Carolina soldier and Marine in their lawsuit — Robert v. Austin — against U.S. agencies DoD, the Department of Health and Human Services and the Food and Drug Administration (FDA).

The lawsuit was originally filed in August in a Colorado court. On Nov. 2, a preliminary injunction was filed where the suing parties claim DoD is “engaged in an illegal vaccination program involving all active duty, National Guard, and reserve members of the all volunteer force.”

An updated complaint filed Nov. 6 said Austin and the DoD are “coercing and forcing military members to be injected with unlicensed drugs in violation of federal law and the U.S. Constitution.”

“Our argument is first and foremost that it’s not a licensed vaccine and it can’t be mandated,” Saran said.

The complaint argued the Pfizer-BioNTech vaccine is "legally distinct" from the FDA-approved form by the name of Comirnaty. Furthermore, the complaints said "all DOD units are using the EUA Pfizer-(BioNTech) vaccine that is not yet licensed by FDA.”

According to court documents, the two plaintiffs in the case are Staff Sgt. Daniel Robert of Fort Bragg and Staff Sgt. Hollie Mulvihill of Marine Corps Air Station New River.

"The military has systematically violated people’s rights," Saran said, who claims some service members who request religious accommodation have been removed from their positions.

On Oct. 15, a class action lawsuit, Navy SEAL 1 v. Biden, was filed by Liberty Counsel in a Florida federal court against Biden, Austin and Security of Homeland Security Alejandro Mayorkas on behalf of members from the Army, Navy, Air Force, Marine Corps and Coast Guard, as well as federal employees and civilian contractors.

The lawsuit claims plaintiffs “have been unlawfully mandated to get the COVID shots or face dishonorable discharge from the military or termination from employment,” said a news release from the firm.

Military plaintiffs in the lawsuit, which claims the mandate violates federal Emergency Use Authorization law and religious freedom, include Marine Corps personnel – two lieutenant colonels, one major, one captain and two lance corporals.

Plaintiffs are unnamed in court documents released to date; however, the major and a lance corporal are stationed in North Carolina.

“The COVID shots cannot be mandatory under the federal Emergency Use Authorization law (EUA),” said a Oct. 15 press release from Liberty Counsel. “All of the COVID-19 shots (Pfizer, Moderna, Johnson & Johnson’s Janssen) have received only EUA authorization and not full FDA approval.”

In a Nov. 11 release from Liberty Counsel announcing they "filed a reply brief and additional affidavits supporting the need for immediate relief for plaintiffs," the firm doubled down on its stance.

“Dr. Robert Malone, who discovered in-vitro and in-vivo RNA transfection and invented mRNA vaccines while he was at the Salk Institute in 1988, provided an affidavit in Liberty Counsel’s brief,” the release said. “Dr. Malone testified, based on the statements from the National Institutes of Health, the Centers for Disease Control, and the FDA letters concerning the vaccines, the ‘FDA regulated product labeled COMIRNATY is the only FDA licensed SARSCoV-2 vaccine ... but it is not yet available for use in the United States.’"

'Harmful to national security'

Last month, Jacksonville congressman Greg Murphy wrote Austin objecting to the vaccine mandate for service members, calling it “reprehensible” that the department would consider relieving service members who refused the shot.

“I worry that dismissing or refusing to deploy unvaccinated servicemembers could critically impede operational readiness and undermine U.S. national security,” Murphy wrote, who is a physician. “It is also highly disturbing that servicemembers who do not receive the COVID-19 vaccine will not only be excused from their duties, but they could have to retroactively pay back any bonuses received for their service or lose additional benefits.”

Berry said the crackdown on unvaccinated service members could be detrimental to the military as a whole.

“If you have to choose between your faith and serving your country, then I don't think that's a very good position for our military to be in,” Berry said. “I think that is actually harmful to national security to begin forcing service members to choose between their faith and their service.”

Reporter Calvin Shomaker can be reached at cshomaker@gannett.com.

This article originally appeared on The Daily News: N.C. Marines involved in litigation over COVID-19 vaccine mandate