Where have all the rebels gone?

Catholic Voices of Dissent on COVID-19 Vaccines

I am going to collect some Catholic voices of dissenting on the Covid vaccines here. By referencing them, I do not necessarily endorse them.

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George Buscemi asks in A Disconnected Elite, November 17, 2021, Crisis Magazine:

Along these lines of subsidiarity, why is there hardly any recognition on the part of upper-echelon clergy of the many Catholics and pro-lifers who, wanting to resist abortion and other modern ills with “maximum determination,” voluntarily decide to withdraw from the emerging pharmaceutical dystopia? Is this not akin to St. Benedict of Nursia’s quest for a more authentic albeit demanding Christian life? The hierarchy should be more sensitive to the signs of the times and the talk of parallel societies and “Benedict options,” for these are signs that the globalist, one-world ideal pedalled by pharmaceutical corporations and their proxies is considered by many anti-Christ, not least of which because it in no way respects subsidiarity.

Douglas Farrow writes in his November 3, 2021 article Vaccine Passes for the Mass in Crisis Magazine:

That is why we are witnessing, as in Grand Falls, government-imposed and episcopally-sanctioned diocesan schisms. But schism, in ecclesial terms, is a cardinal sin. And this sin presently entails—we must not overlook this!—a twofold assault on the little ones whom Jesus insisted His disciples permit to approach Him.

First, it helps sustain an attack on their bodies, for the authorities are now gearing up to subject these little ones, who are at virtually no risk from COVID-19, to the far greater risks of the injections. (Of this “far greater” there is no statistical doubt; only the sin of sloth prevents anyone from knowing that.) And why? As ever, for dishonest gain; but also for the sake of acclimatising the entire population to the shiny Nowa Huta that is its Pharma-run future.

More importantly, it is a stone of stumbling for their souls, a rock of offense. They and their parents are being told that they are not welcome in church and/or that they do not require their church. Virtual church will do for them if virtual proof of vaccination is wanting. What won’t do is not being vaccinated. For as the World Health Organization reverently declared in a recent global synod, “in vaccines we trust.”

All people are being told, then, that the leadership in such churches is not half as serious about the things of God as about the things of man, even the medically and politically perverse things of man, by which man oppresses man. When that message is fully absorbed, what will be the result? What indeed, if not the proliferation of cardinal sins and a still more obvious apostasy? As if seconding the power of excommunication to the ministry of health were not obvious enough!

Archbishop for the Military Services, USA Timothy Broglio, October 12, 2021, Statement on Coronavirus Vaccines and the Sanctity of Conscience

 Even if an individual’s decision seems erroneous or inconsistent to others, conscience does not lose its dignity. This belief permeates Catholic moral theology as well as First Amendment jurisprudence. As stated by the United States Supreme Court, “[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” The denial of religious accommodations, or punitive or adverse personnel actions taken against those who raise earnest, conscience-based objections, would be contrary to federal law and morally reprehensible. 

John Clark, September 28, 2021, Without the Right of Conscience, There Is No Common Good

The right of conscience does not merely exist alongside common good; conscience is a component of common good.

The denial of this principle inevitably leads to totalitarianism. As Prefect of the Congregation for the Doctrine of the Faith, Cardinal Ratzinger wrote that “one must follow a certain conscience, or at least not act against it.” History illustrates that the penultimate policy of totalitarianism is to disallow the following of conscience; the ultimate policy of totalitarianism is to force people to act against their own consciences.

The attack on conscience is devastating to the common good. As Cardinal Ratzinger phrased it, “the silencing of conscience leads to the dehumanization of the world.”

Jane Smith, September 27, 2021, Crisis Magazine, The Fake Theology behind Vaccine Mandates

None of these documents, however, have the degree of magisterial authority to require assent; they are all low-level documents or non-magisterial statements that cannot impose obligations on Catholics. While these sources do attempt to make a strong case that there is a “moral responsibility” to receive the vaccine, none speak of a moral obligation to do so. And, as we shall show, according to Catholic theology, they can’t do so. (For an explanation of the various levels of authority of Church teaching, see the “Doctrinal Commentary on concluding formula of Professio fidei.”)

Bishop Athanasius Schneider, September 14, 2021

The fact that abortion is in the causal chain in the testing and/or producing of all the current Covid-19 vaccines means that they are gravely immoral. I will not argue that here. Please see my letter where I discuss it thoroughly and definitively.

So in that sense Catholics are not disobeying the Pope because the directive itself is undermining the clarity of the Catholic doctrine and the Catholic witness against abortion and the fetal industry. Furthermore, the Pope is not teaching in this case infallibly.

Suzanna Sammons, September 7, 2021, Crisis Magazine,  Stop Pretending the COVID Jab is Morally Equivalent to Other Meds

Bishop Thomas Olmstead, letter to the faithful regarding COVID-19 vaccinations and individual decisions based on a well-formed conscience (August 27, 2021)

Bishop of a diverse flock with the care of many souls, I continue to encourage the prayerful consideration that each individual must make in regard to receiving the vaccine. For those who have discerned to receive one, they can be assured that they can do so in good conscience. For those who have discerned not to receive one, they too can do so in good conscience. What is primary for us as individuals is to form our conscience through the teachings of the Church.

Archbishop Samuel J. Aquila, Bishop Stephen J. Berg, James R. Golka, Jorge Rodriguez, A Letter from the Bishops of Colorado on COVID-19 Vaccine Mandates (August 5, 2021)

If any person comes to an informed judgment that he or she should receive or not receive a vaccine, that person should follow their conscience, and they should not be penalized for doing so. We encourage any individual seeking exemption to consult their employer or school. The Colorado Catholic Conference also has a letter template available to be signed by pastors of the Faithful if a Catholic wants a written record that they are seeking exemption on religious grounds.

Eric Sammons, Abortion-Tainted Vaccines: From Objection to Obligation April 22, 2021, Crisis Magazine:

A careful reading of the statement reveals a far different emphasis versus what we now hear from our Church leaders, including those at the Vatican. After detailing the moral arguments regarding the degree of cooperation one might have when taking an abortion-tainted vaccine, the PAL states forcefully,

Therefore, doctors and fathers of families have a duty to take recourse to alternative vaccines (if they exist), putting pressure on the political authorities and health systems so that other vaccines without moral problems become available. They should take recourse, if necessary, to the use of conscientious objection with regard to the use of vaccines produced by means of cell lines of aborted human foetal origin. Equally, they should oppose by all means (in writing, through the various associations, mass media, etc.) the vaccines which do not yet have morally acceptable alternatives, creating pressure so that alternative vaccines are prepared, which are not connected with the abortion of a human foetus, and requesting rigorous legal control of the pharmaceutical industry producers. (emphasis added)

“They should oppose by all means…the vaccines which do not yet have morally acceptable alternatives”—do we see this happening today? Far from opposing “by all means” these vaccines, the Church rather is advocating for them, to the point of assisting in their promotion and even their distribution.

 

 

Bishop Athanasius Schneider, December 11, 2020, Covid vaccines: ‘The ends cannot justify the means’

In the case of vaccines made from the cell lines of aborted human fetuses, we see a clear contradiction between the Catholic doctrine to categorically, and beyond the shadow of any doubt, reject abortion in all cases as a grave moral evil that cries out to heaven for vengeance (see Catechism of the Catholic Church n. 2268, n. 2270), and the practice of regarding vaccines derived from aborted fetal cell lines as morally acceptable in exceptional cases of “urgent need” — on the grounds of remote, passive, material cooperation. To argue that such vaccines can be morally licit if there is no alternative is in itself contradictory and cannot be acceptable for Catholics.

 Bishop Joseph Strickland, December 8, 2020, Letter to Flock of East Texas

Every procured abortion murders an innocent human person. For university, government, or industrial scientists to use materials obtained from the remains of an electively aborted child in the research, development, testing, or production of any vaccine is immoral and constitutes formal cooperation in evil. We must never cease to protest this practice with maximum determination to defend the dignity and sacredness of children in the womb. They are not objects to be used but persons to be received as gifts, our brothers and sisters. As your shepherd, I cannot in good conscience receive a vaccine that has been produced using an aborted child. There are ethical vaccines in development which are worth waiting for.

Interesting Group of Feds

https://fedsformedfreedom.org/about-us/

All you need to know/All I would like to know

I would really like for someone to go slide by slide and debunk this without resort to ad hominin attacks, calls to authority, anecdotes, or other non-substantive rebuttal.

  

https://www.skirsch.com/covid/All.pdf

Religious Freedom Restoration Act, a Super Statute

The Religious Freedom Restoration Act (RFRA) is one of those rare laws which lives up to its name. 

Reasonableness not up for debate; sincerity, tread lightly

One thing I like about the RFRA is that it prohibits the federal government from second-guessing the reasonableness of sincerely held religious beliefs. As the Department of Justice website describes:

RFRA applies to all sincerely held religious beliefs, whether or not central to, or mandated by, a particular religious organization or tradition. Religious adherents will often be required to draw lines in the application of their religious beliefs, and government is not competent to assess the reasonableness of such lines drawn, nor would it be appropriate for government to do so. Thus, for example, a government agency may not second-guess the determination of a factory worker that, consistent with his religious precepts, he can work on a line producing steel that might someday make its way into armaments but cannot work on a line producing the armaments themselves. Nor may the Department of Health and Human Services second-guess the determination of a religious employer that providing contraceptive coverage to its employees would make the employer complicit in wrongdoing in violation of the organization's religious precepts.

The government may question the sincerity of a belief to a certain degree, but not the reasonableness. Even with respect to sincerity, the government must tread lightly. As the 5th Circuit explained in Tagore v. United States, 735 F.3d 324 (5th Cir. 2013):

The specific religious practice must be examined rather than the general scope of applicable religious tenets, and the plaintiff's “sincerity” in espousing that practice is largely a matter of individual credibility. Id. at 792. In fact, the sincerity of a plaintiff's engagement in a particular religious practice is rarely challenged. Id. at 791. As Moussazadeh explains, “[t]hough the sincerity inquiry is important, it must be handled with a light touch, or ‘judicial shyness.’ ” Id. at 792 (quoting A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 262 (5th Cir.2010)). “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” Id. (fn. omitted). Both before and following Moussazadeh, claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff's credible assertions. See, e.g., Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir.2013) (Muslim prisoner's desire to wear a beard not challenged by TDCJ); Betenbaugh, 611 F.3d at 261–62 (Native American schoolboy wearing long hair a sincere religious belief; Texas RFRA parallels RFRA); Mayfield v. Tex. Dept. of Criminal Justice, 529 F.3d 599 (5th Cir.2008) (Odin worshiper's religious need for runestones and rune literature not challenged by TDCJ).

    Officials can be sued for monetary damages, in their personal capacities

A really interesting thing about the RFRA is that it allows plaintiffs to recover monetary damages against government officials in their personal capacities. The Supreme Court confirmed as much in Tanzin v. Tanvir last year. The Court described the issues there:

Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. Respondents sued various agents in their official capacities, seeking removal from the No Fly List. They also sued the agents in their individual capacities for money damages. According to respondents, the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost. More than a year after respondents sued, the Department of Homeland Security informed them that they could now fly, thus mooting the claims for injunctive relief. 

The District Court then dismissed the individual-capacity claims for money damages, ruling that RFRA does not permit monetary relief. The Second Circuit reversed. 894 F. 3d 449 (2018). It determined that RFRA’s express remedies provision, combined with the statutory definition of “Government,” authorizes claims against federal officials in their individual capacities. Relying on our precedent and RFRA’s broad protections for religious liberty, the court concluded that the open-ended phrase “appropriate relief” encompasses money damages against officials. We granted certiorari, 589 U. S. ___ (2019), and now affirm.

    An important thing to keep in mind about Tanzin v. Tanvir, is that the plaintiffs had already been removed from the No Fly List by the time the case was before the Court. The government argued that this fact made the case moot. But the Court disagreed. Plaintiffs might still be entitled to damages. To me, this means that federal employees who take the injections after having their religious exceptions denied might still have non-moot claims for damages. 

    A super statute which creates standing

Perhaps one of its most important aspects is the RFRA's power to provide plaintiffs with standing to bring their claims in federal court.  The RFRA mandated that the law “'be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.’” Hobby Lobby, 573 U.S. at 696 (quoting 42 U.S.C. § 2000cc—3(g)). “RFRA operates as a kind of super statute, displacing the normal operation of other federal laws.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020). 

A big question is whether the RFRA provide federal employees with standing to file lawsuits against the federal government.  When addressing this issue, the the EEOC's website lists four cases.

They represent a mixed bag. 

In two circuit court cases, the 8th and 3rd Circuits found that Title VII provides the "exclusive remedy" for religious discrimination claims of federal employees. 

• Harrell v. Donahue, 638 F.3d 975, 984 (8th Cir. 2011)(holding RFRA claims alleging religious discrimination in federal employment are barred because “Title VII provides the exclusive remedy for [] claims of religious discrimination”);
• Francis v. Mineta, 505 F.3d 266, 272 (3d Cir. 2007) (stating that “[i]t is equally clear that Title VII provides the exclusive remedy for job-related claims of federal religious discrimination, despite [plaintiff’s] attempt to rely upon the provisions of RFRA”). 
[In a third case, not on the EEOC website, the 9th Circuit sided with the 8th and the 3rd. See Holly v. Jewell, 196 F.Supp.3d 1079, 1085 (N.D. Cal. 2016) (dismissing constitutional claim arising from alleged First Amendment religious discrimination as covered exclusively by Title VII)]

But  in one district court case, out of the Southern District of Ohio (6th Circuit), the judge found that Title VII does not preclude such an action.

• Lister v. Def. Logistics Agency, No. 2:05-CV-495, 2006 WL 162534, at *3 (S.D. Ohio Jan. 20, 2006) (denying defendants’ motion to dismiss as to RFRA claim and finding that “Title VII does not preclude Plaintiff from pursuing claims under the Fifth Amendment to the United States Constitution and RFRA” because “[a]lthough the claims arise from the same factual circumstance as the Title VII claim, the claims are distinct from Plaintiff’s claim for employment discrimination and therefore are not precluded by Title VII”). 

In the fourth case, the 5th Circuit found that the RFRA provided standing to a federal employee who was suing a federal agency which was not her employer.

•  In addition, one appellate court has held that a federal employee is not preempted from bringing a RFRA claim against another agency (not his employer) to challenge that agency’s action interfering with employment. See, e.g., Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) (allowing employee’s RFRA claim to proceed against agency that enforced building security regulations and denied her permission to enter building while wearing a kirpan).

Targore is an interesting case. Plaintiff there brought a Title VII case against the her employer (IRS) as well as an RFRA case against DHS which had barred her from wearing a religious weapon which had led to her discharge from the IRS. The 5th Circuit dismissed the Title VII claim, but not on standing grounds. Rather, the court found that the IRS did not control the building and had not failed its duty to attempt to reasonably accommodate the plaintiff. The 5th Circuit found that the plaintiff did have standing and a triable case against DHS.

The RFRA has only grown stronger since Targore and the other cases cited by the EEOC. As Justice Gorsuch wrote in Bostock, "[b]ecause the "RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases."

So, what does this all portend for vaccine mandate cases? It seems to me that if the RFRA's definition of "government officials" includes FBI agents in their personal capacities, it also includes presidents who sign executive orders in their official and personal capacities, as well as the officials who make up the Safer Federal Workforce Task Force, and various agency officials who make decisions about whether to provide employees with religious exceptions and what kinds of questions about their religion they should be forced to answer.

In my view, there are two distinct religious burden issues. First, there is the issue of the religious burden imposed on those who have a religious belief that runs contra taking the mandated injections. Second, there is the issue of the burdens involved in seeking relief from the mandate. For instance, if the exception process is an elaborate, bad faith charade where officials know that they will not be accommodating any religious exceptions, but they lead employees on to write out requests for them...that would seem to me to represent an undue burden on religious practice.

But I will caution the reader to do his own research. My research on these issues is done without access to legal resources like Westlaw, and it is done on my own time (which is pretty limited by fact of the five children who keep me pretty busy). Which is to say that it is always possible that I am missing something important. Do your own research (and if you find any relevant authority, please send it my way).

david.foley.JMJ@protonmail.com

Litmus Test Failures at Intelligence Agencies

As reported by Reuters, there seem to be a good number of employees in the civilian intelligence community who are resisting the mandate. Presumably those intelligence employees know a thing or two about how to detect lies, including "big lies." 

It is hard to know how many we are talking about because the percentages (except for the CIA which reports 97% vaccination rate) are secret:

"The Biden administration classified information it gave the intelligence committee on each of the nation’s 18 intelligence agencies, said Stewart, who noted generally that agencies more closely affiliated with the military tended to report lower vaccination rates."

 An op-ed by US Reps. Chris Stewart (R-UT) and Devin Nunes (R-CA) raises some important questions.

One can also reasonably ask whether the Biden administration believes that a benefit of this policy will be to shrink a demographic within the realm of government service that the administration perceives to lean conservative.

I raise the same issue in my lawsuit. ("the Order acts as a loyalty test and will have the effect of purging [straight, white, conservative, Christian men] from the ranks of the federal government")

The congressmen go on to note:

None of this is even to mention how these employees might react to being fired over a personal medical decision. It is a legitimate concern to create significant numbers of unemployed intelligence professionals with Top Secret clearances. These officers very well may feel betrayed, angry, and underappreciated by a country they chose to protect.

Good point.  

Covid Mandate Jokes

1. I was going to tell a Covid symptom joke...

but it was bad taste

2. Plus, you might have died from laughter

Although 99.95% of you would not have

3. When George Washington ordered his men to be inoculated against small pox, why didn't he order those who had already had small pox to be inoculated as well?

The CDC hadn't been created yet

4. What's the difference between Moderna's vaxx and cocaine?

It takes more than two shots of cocaine to cause a heart attack

5. How were scientists able to develop safe and effective vaccines in months when everyone said it would take years?

They didn't

6. How is it that almost zero Americans have suffered side-effects from the FDA-approved Comirnaty vaccine?

Almost zero Americans have ever been injected with it.

7. For unvaccinated college kids, what is the difference between getting Covid and having a hangover?

Odds are they will have another hangover

8. Since Covid does not pose a real risk to children, why do their parents get them vaccinated?

Because they are sick

9. Does the "vaccine" injection leave a scab?

No, but it can create one

Saint Benedict, Patron Saint of Poison, Pray for Us

Saint Benedict first rejected the spiritual poisons of decadent life in Rome.

He lived as a hermit for three years in a cave near Enfide.

Others recognized his spiritual strength. After a while, a group of monks asked him to become their leader. Knowing that they were not yet truly committed to a life of work and prayer, Saint Benedict warned them that his leadership would be too much for them. Despite these warnings, they asked him to lead them. Reluctantly, he accepted.

As he had predicted, the monks grew to resent his stern command. First they attempted to kill him by giving him a poison-laced cup. But when he blessed the cup, it shattered.

Second, they attempted to kill him by poisoning his bread. A raven snatched it away.

From this, we have the adage today, "Fool me once, shame on you -- Fool me, twice, shame on me."


Or perhaps not. In either event, twice was enough and Saint Benedict fled from those monks. He went on to establish a number of monasteries that followed the Rule that he wrote down, the most important of which was the Benedictine monastery at Monte Cassino. His influence on Europe is unsurpassed by any other figure after him. It all began with rejection of poison.


What does this have to do with America in 2021?

Poison, both physical and spiritual is all around us. It flows over the air in radio waves, through the ground in internet cables, and through our bloodstreams in the form of medically approved, if evil and destructive, formulas like Oxycotin® (aka heroin), Kyleena® (aka birth control), and Gonadotrophin Releasing Hormone (aka "gender affirming hormones" which act to halt the biological processes of puberty).

Additionally, we are now poisoned by the fell fruit of our own sin in the form of chemical products ("vaccines") that are derived from the flesh of children cut down before they could be born. Three times in the Old Testament (Exodus 23:19, 34:26 and Deuteronomy 14:21), God told his people, “You shall not boil a kid in its mother’s milk.” Does this fickle people need Him to tell us now that we should not inject into the veins of the mother the flesh of her murdered child? Can we not recognize this poison without further inquiry?

Surrounded by poison, let us reject it and pray with Saint Benedict,

Vade retro satana: Vade retro Satana! Numquam suade mihi vana! Sunt mala quae libas. Ipse venena bibas!
'Begone Satan! Never tempt me with your vanities! What you offer me is evil. Drink the poison yourself!'

Michael Yoder's New, VERY INTERESTING Complaint Makes it 5 Cases Challenging the Federal Employee Vaxx Mandate

As reported by Under Cover DC, attorney Michael Yoder (who filed the first complaint against the EO on 9-23) filed another complaint on October 24 (Church v. Biden, Case 1:21-cv-02815) in which he makes shocking allegations about the Safer Federal Workforce Task Force's handling of the Mandate. 

Of particular interest, the complaint alleges:

B.    THE TASK FORCE’S SCHEME TO CIRCUMVENT THE FIRST AMENDMENT AND DEPRIVE PLAINTIFF’S OF THEIR FREE EXERCISE OF RELIGION

 

50.                  Since the day President Biden issued the Vaccine Mandate, hundreds of thousands of federal government employees have been in complete disarray. Federal employees with serious, life-threatening conditions and others with sincerely held religious beliefs, such as Plaintiffs, have frantically sought guidance on how to obtain reasonable accommodations.

51.                  Due to the rapidly approaching deadline and Defendants’ full awareness that Plaintiffs have the fundamental right to engage in the free exercise of religion, Defendants concocted a scheme that imposes a “deadline” to submit religious exemption requests to help “evaluate the scope” of how many federal employees have sincerely held religious beliefs prohibiting compliance with the vaccine requirement. After determining the scope, the Task Force instructed the agencies to “collect information” through a questionnaire calculated to elicit information the agencies can then use as the basis for denying a respondent’s exemption request.

52.                  Video Footage from an October 8, 2021 Task Force Zoom call¹⁴ involving nearly 200 high-level officials from various agencies reveals Samuel Berger, a former Senior Advisor in

¹³ The term “agency” means an Executive agency as defined in 5 U.S.C. § 105 (excluding the Government Accountability Office). Id. at § 3.

¹⁴ Samuel Berger, COVID-19 Guidance Zoom Meeting, SAFER FEDERAL WORKFORCE TASK FORCE (Oct. 8, 2021);

see Exhibit 5.

the Obama Administration and the former Vice President of Democracy for John Podesta’s Center for American Progress (“CAP”) discussing the methodical approach each agency is to take when dealing with religious exemptions.

53.                  The Task Force advised each agency¹⁵ to establish a deadline which the agencies are not to enforce – because there is no deadline imposed on the fundamental right to freely exercise religion – but rather, to use as a “forcing function” that will induce all or nearly all federal employees with sincerely held religious beliefs to submit their requests.

54.                  Once all or nearly all federal employees have submitted their religious exemption requests, the agencies, individually or in conjunction with the Task Force, can then “evaluate the scope” of how many federal employees wish to exercise their fundamental right to freely exercise their religion.

55.              The Task Force then directed the agencies to refrain from issuing any decisions, because “once you grant an exemption to an individual in a job category, it is very hard to say that you’re not going to grant [an exemption] to a similarly situated person.”

56.              The Task Force further instructed the agencies to “take their time” and the agencies “should not feel rushed that they have to take steps immediately” because it is important to “collect information” on federal employees, such as Plaintiffs, whose sincerely held religious beliefs prohibit them from complying with the vaccine requirement.

57.              To collect this information, the Task Force advised it provided the agencies with a religious exemption form with questions that are intended to elicit information from federal employees seeking religious exemptions. The Task Force directed the agencies to “work bearing

¹⁵ The term “agency” means an Executive agency as defined in 5 U.S.C. § 105 (excluding the Government Accountability Office). See Exec. Order No. 14043 at § 3. It does not include the White House (“WH”), Centers for Disease Control and Prevention (“CDC”), the National Institute of Health (“NIH”).

 

in mind that a fair bit of thought went into the range of questions and the kind of information that [the questions] would provide.” The Task Force then gives the agencies authority to refuse to provide accommodations under whatever circumstances each agency so chooses.

58.              Rather than advising the agencies under what circumstances the refusal to provide an accommodation would constitute a violation of federal law or deprivation of fundamental rights, the Task Force merely emphasized how important it is for the agencies to “figure[e] it out as quickly as possible . . . because [the agencies are] not going to run an accommodation in those places–and that’s totally fine.”

59.              As a result, Defendants have either failed to implement a process by which     Plaintiffs and other federal employees are able to submit religious exemptions or implemented a process for Plaintiffs to provide information to Defendants to which they are not entitled in violation of current EEOC Guidance, federal statutory law, and Plaintiffs’ fundamental First Amendment right to engage in the free exercise of religion.

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.