Why I am Suing the Federal Government (my Employer)

I have been a labor attorney with a federal agency for twelve years. As you can tell by context, the views expressed here are my own and do not reflect the views of my employer. 

On September 29, I filed a complaint in the U.S. District Court for the Northern District of Texas.  In my Complaint, I make a number of claims about President Biden's Executive Order No. 14043 (issued on September 9).  I will not repeat them all here. To understand the case, you will need to read the Complaint, the Defendant's Response, the Judge's Order, and my Response to that Order. In this post, I will provide some answers to common questions.

Why do you say that the Order is arbitrary?

The Order, and subsequent guidance, require that federal employees receive one of three hurriedly produced medical products unless they qualify for an "exception as required by law."  I argue that because exceptions required by law are not all-encompassing of those circumstances where exceptions should be granted by reason, the Order is unreasonable per se. 

I posit several "for instances" in the Complaint that have not been answered. One "for instance" was anticipated in the Complaint, but not made explicit until later in guidance published on the website of an entity called the Safer Federal Workforce Task Force (SFWTF). Under the guidance there, where an employee suffers myocarditis after receiving a first shot, he is still required to get a second shot or lose his job. See page 8 of my Response. If you have ever had myocarditis or pericarditis (I have) you know it is not fun. This policy  is more like something I would expect to see in an Aleksandr Solzhenitsyn novella than in official guidance from the government of the United States of America.

Another "for instance" are the people who have already beaten COVID-19 and have the antibodies to prove it. The lack of carve out for them is inconsistent with our vaccine policies for other diseases and inconsistent with the approaches of other governmental bodies, such as the European Union. See page 2 of my Response.

Another "for instance" is the 100% remote worker/teleworker. According to the guidance, even though a teleworker doesn't meet with the public or come into contact with coworkers, he still could and therefore he must take the second shot. See page 4 of my Response. Can the teleworker rule really be about keeping the public and coworkers safe or is it just proof that the Order is about exerting control over the lives of citizens as opposed to employees? I take offense when someone explains to me that he is requiring teleworkers to get injected for the safety of their coworkers, while telling me it's raining.

But if the above is not arbitrary, start stacking them together. You have an employee who was working remotely since before anyone heard of Wuhan, and this remote worker, who has already had COVID-19, takes the first shot and suffers from myocarditis following his first injection.  Any reasonable person would not make that man take a second shot. But there is no exception in the law for him.  

Doesn't the Caselaw Support the Government's Right to Require Vaccinations?

I address this issue in my Complaint and more comprehensively in my Response. There have been a couple of decisions that have come down in support of mandates, but the parties and the courts in cases like Klaassen v. Trs. of Ind. Univ, have operated on the assumption that these vaccines should be treated like traditional vaccines under the established law of vaccines. We have to stop and address the important issue: Should mRNA vaccines be treated under the caselaw developed for traditional vaccines? If the answer is, "Yes, because the CDC and the FDA say we should," that has no weight in my case where the Defendant controls those agencies.

General George Washington required his troops to inoculate against Smallpox at a time when Smallpox and other diseases were responsible for 90% of deaths among those troops, and when refraining from doing so would have put his army at a disadvantage against the mostly inoculated British forces. Those same troops of General Washington carried muskets, pistols, and rifles. The Second Amendment gives us the right to bear such arms.  The natural progression of gun design eventually led to the machine gun/assault weapon.  But, the Supreme Court didn't blindly apply old law to this new technology. See  

District of Columbia v. Heller, 554 U.S. 570, 624-25, 627-28 (2008).  In form, substance, and purpose, the machine gun is more similar to the rifle than mRNA vaccines are to traditional vaccines. As the Supreme Court discussed in Heller, there are times when old law should apply to new technologies, but it should never be done blindly.

What about Johnson and Johnson's vaccine which is not an mRNA product?

Johnson & Johnson indeed has a product which might more rightfully bear the mantle of "vaccine." However, the J&J vaccine is an Emergency Use Authorization only product. If the EUA labeling didn't matter, the President would not have waited until after the FDA approved one of the products to issue his mandate.

But the Pfizer Product, Comirnaty, has been FDA Approved?

Comirnaty cannot be found. Instead, we are assured that the previously EUA-approved Pfizer-BioNTech is "interchangeable".  That may be good enough for government work, but where we are not playing with horseshoes, hand-grenades, or atom bombs, 'close' does not count.

As argued in my Response at page 4, the Order relies on a slight of hand, as in a game of Three-card Monte: one of them is a 'vaccine', one of them is FDA approved, some of them are available, but none is an FDA approved and widely available vaccine.

CSRA Preclusion....Do you have standing to bring this claim to Federal Court?

Civil Service Reform Act Preclusion is a challenge, but I believe that I have established grounds sufficient to overcome it. The harm that I argue for is system-wide. I don't think Congress, in passing the CSRA, intended to allow the President to take unilateral actions which will have the effect (whether as a feature or a bug) of clearing his political opposition from government employment. As I argue in my Response, litmus tests like this one will act as a backdoor to the "spoils system" if not checked.

Do you have a religious objection to the vaccines?

Yes. First, I am against anything created on the ill-gotten benefit of the bodies of our "aborted" (murdered) brothers and sisters.  Second, after private reflection, I believe that these products and the mandates requiring them are evil.  That is all that I am willing to say about my beliefs as they pertain to these products.  As a Catholic, I have to be careful because I do not want to be the cause of disunity in the Church. I am not saying that other Catholics are wrong or engaging in schism simply by detailing their reasons further. But for me, I am just not going there because I fear where such conversations could lead and how words can be twisted. I pray for the Pope, for unity in the Church, and for the intercession of the Patron Saint of Poison, Saint Benedict.

Can you represent other employees, or give them advice?

No. In taking this case, I am running a minefield of legal and ethical problems. As a federal employee/attorney, I am not allowed to represent anyone--except myself--against the federal government.  On the other hand, other federal employees might be able to help me.  Nothing stops me from talking to other federal employees as potential witnesses. I have argued that there is going to be significant harm to the system which will have the effect of spoiling the administrative process.  If my case goes forward,  having the testimony of employees at agencies like the CDC, FDA, MSPB, and EEOC might go a long way in advancing that theory.

Are you alone in this?

No, luckily I have a good friend, Daniel Flickinger, who has sacrificed many hours to help with the case. I can't thank him enough.

What can I do to help?

Pray for me, pray for those who don't have the resources to refuse these products, pray for justice, pray for our country.

Seven Years Later

I started this blog in 2011 and wrote fairly regularly for a couple of years. I discontinued it in 2014.

Seven years later, I thought I would dust the cobwebs off and try my hand at blog posting again. 

Required Reading for Catholics in Labor and Employment Law: Ken Matheny's "THE DISAPPEARANCE OF LABOR UNIONS AND THE SOCIAL ENCYCLICALS OF POPES JOHN PAUL II AND BENEDICT XVI"

Pope John Paul II

Ken Matheny has an article out in the Winter 2014 issue of the Southern California Interdisciplinary Law Journal, The Disappearance of Labor Unions and the Social Encyclicals of Popes John Paul II and Benedict XVI.  It is worth a read for anyone interested in labor and employment issues and a must read for Catholics.  The article, like many, considers changes to the economic landscape and the diminished relevance of labor unions in America today while offering thoughts on the future of workers' associations.  Unlike other articles that contemplate these issues,  Matheny's article is powerfully informed by centuries of Catholic social doctrine and informs the reader along the way.

Inherently Concerted: Sabo, Inc. d/b/a Hoodview Vending 359 NLRB No. 36 (2012)

Can a simple discussion between employees be protected concerted activity under Section 7 of the NLRA?

Yes.

If employees are discussing a "vital term and condition" of employment, they are protected when they talk to one another about it.  These conversations are "inherently concerted."  It does not matter if the speaker or the listener agreed, or whether the speaker was trying to change things or persuade the listener. This is a bright line rule.  With one exception...

What are "vital terms and conditions of employment"?

According to the NLRB, they are the terms/conditions that you might generally expect employees to seek unionization about or engage in other group action about.  These are the basic ingredients, the flour, eggs, and sugar if you will, of organization and collective action.  So far, the Board has identified wages, work schedules/hours, and job security as "vital terms and conditions".

Are there others?

 I don't think that the list could be too large, but some other basics might make it.  For instance, safety would be a good candidate in my book.

The Board lays out the history of this doctrine and its justification in Hoodview Vending, 359 NLRB No. 36 (2012).  It is well worth the read, but in case you would rather watch, I have put together two animated scenes (30 seconds each) that depict the essence of the relevant facts.  The first one shows the essence of the activity at issue and the second scene captures essentially what the Board believed happened.

The Board held that because job security is a vital term, the conversation was inherently concerted and therefore the discharge was unlawful.

Jujitsu in EEOC v. Kaplan

I have always loved the passage from The Art of War about the general who is facing an enemy army on the other side of a river.  The two armies are at a stand off.  The general is informed that his forces are running perilously low on arrows (and won't be able to ward off an attack). What does the general do? He orders empty boats swung out at the enemy in a feigned attack.  The enemy volleys a multitude of arrows at the boats.  The boats are hauled back in and the general has his men collect the wasted arrows.

http://www.caiguoqiang.com/projects/borrowing-your-enemys-arrows-1

What a tactic; you start from a position of weakness, then use cunning to drain your enemy of his resources while simultaneously restoring yourself to a position of strength.

This isn't an exact parallel to the general on the river, but something about what happened in  EEOC v. Kaplan Higher Learning Edu. Corp. (N.D. Ohio 1/28/13) reminds me of it.  In that case, which issued earlier this week, Kaplan's attorneys turned the EEOC's policies back around at themselves (twice) and as a result won a motion for summary judgment.  How can you not admire that kind of lawyering?

As you may recall, as part of its statistical discrimination initiative, in 2010, the EEOC filed a suit against Kaplan University for its practice of using applicants' credit histories as a factor in hiring decisions.  Kaplan was not docking applicants for late payments or grading them on debt/asset ratios, but was only looking at large defaults and other red flags.  The EEOC alleged that Kaplan's practice was discriminating against minorities based on the disparate impact of these practices.

Kaplan's first legal Jujitsu maneuver was during discovery where it requested documents establishing the EEOC's own practice of using credit history to assess job candidates.  The EEOC at first committed to turning the records over, then balked, then was ordered to turn them over by a not so happy federal judge (Judge Patricia Gaughan).  As it turns out, the EEOC itself looks at applicant credit reports in 84 of its 97 positions because “overdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations”.  Although the case did not turn on this discovery request, there is a certain irony in that the rationale that the EEOC uses to defend its regular practice of checking applicants' credit history applies just as equally to every employer the EEOC regulates, and that irony does not appear to have been lost on Judge Gaughan.

Kaplan's second and critical act of Jujitsu came when it challenged the EEOC's prima facie case.  The EEOC's prima facie case was based on evidence that the applicants that Kaplan rejected on the basis of credit reports were disproportionately minorities.  To establish this prima facie case, the EEOC needed one critical piece of data: the race/ethnicity of the applicants.  Getting this information was an obstacle for the EEOC because Kaplan did not record the race of its applicants (the EEOC attempted to no avail to argue that the EEOC's model guidelines for employers call for gathering and retaining such information).

In order to find out the respective races of the applicants, the EEOC used their names and presumably their social security numbers to look up information about them from their local departments of motor vehicles.  However, only 14 of the 38 states from which the applicants hailed had records of race associated with drivers licenses.  For those states that did not have racial self-identification on the drivers license, the EEOC ordered the drivers license photographs of the applicants...With the pictures in hand, the EEOC had a panel of five "expert" "race raters" look at the pictures and determine the race of the applicants...You might be wondering, "What kind of credential does an expert race rater have?" The judge also wondered and was not at all impressed with their varied credentials of the raters who held advanced degrees in either economics, human development, psychology, or cultural anthropology, and had no established background in visually identifying an individual's race.  Further discrediting the "race rater" panel was its inability for 80% of its raters to reach a consensus as to the race of 11.7% of the applicants.

The lack of expertise and inability to reliably judge race was bad enough for the EEOC, but Kaplan's second Jujitsu move came in when they showed that the EEOC's own guidelines (the ones they tried to employ against Kaplan) deem visual identification as an undesirable way of identifying race and ethnicity. Thus Judge Gaughan noted that the "EEOC itself frowns on the very practice it seeks to rely on in this case" and ultimately dismissed the complaint on summary judgement for lack of a prima facie case.

Kaplan's attorneys did not exactly mimic the general on the river, but like him, they started from a position of weakness and used cunning to turn their adversary's resources against it.