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.
