The Most Important COVID Lawsuit You’ve Never Heard About
The Biden Administration Is Scared …
On 21 July 2023, the United States (US) Department of Justice (DOJ) told the world that the Biden Administration is frightened. They made vain attempts to mask their fear in a 203-page legal filing. It was wrapped in the language of litigation, but it couldn’t be any clearer.
The Biden administration fears a 501c3 nonprofit organization, Feds for Medical Freedom (F4MF).
They cowardly hide from the rank-and-file civil servants who make up F4MF and advocate for accountability. They treat integrity like they treat the definition of a vaccine; a fraudulently tested, emergency use, gene therapy product has been redefined to suit their authoritarian needs. They disdain the thought of executive office restraint being thrust upon them by the worker class.
President Biden regards government employees who demand reform and represent the values of average Americans as repulsive. If the government treats their employees as an untouchable caste with barely disguised disgust, just think how they view upstart citizens demanding constitutionally afforded rights.
They fear a free citizenry and want to erase lower court rulings limiting their power to repeat vaccine mandates. Make no mistake. They intend to do it again.
F4MF’s lawsuit is the most important case the American public has never heard about.
On 31 January 2020, the Secretary of the Department of Health and Human Services (HHS) Alex Azar declared a Public Health Emergency (PHE) pursuant to § 319 of the Public Health Service Act. The Trump administration renewed it every three months and it passed from one administration to the next. The declaration allocated taxpayer dollars to support beneficiaries like Medicaid, Medicare, and Children’s Health Insurance Programs (CHIP) programs. It provided funding for medical counter measures and liability protections to covered providers.
On 13 March 2020, proclamation 9994 ushered in the COVID-19 public emergency with the help of career bureaucrats masquerading as public health officials. The Trump administration’s declaration had unintended consequences. Pandemic prevention measures of questionable value and backed by debatable science provided all the justification needed for historic levels of bureaucratic incompetence, political corruption, and economic devastation.
The results were disappointingly incongruous with the image of a happy warrior who campaigned on promises to drain the swamp. President Trump appeared to have strong initial instincts about the pandemic and the entrenched bureaucracy, but he failed to fully recognize how deep he would have to dig the trenches to expose rich sedimentary soil to sunlight. The invasive political species that occupied Washington’s quagmire, was now the dominant super predator poisoning the delicate ecosystem sustaining an endangered and harmonious union of wildlife.
Many federal government employees tried to warn the executive office, but when truth was needed most, entrenched interests and years of an ever-expanding bureaucracy prevented it from being revealed. The civil servants who risked professional ruin to oppose increasingly oppressive dictates coming from the Safer Federal Workforce Taskforce (SFWTF) and EO 13991, were rare and stultified by a government suffering from systemic leadership failure.
Trust in our public institutions and damage to our national security was a self-inflicted wound.
Biden’s administration removed the few public health officials acting on the behalf of its citizens and silenced others in an unprecedented assault on constitutionally protected free speech. The Twitter files and Facebook files appear to indicate that the censorship was largely but not exclusively directed by Democrats, media outlets, public-private partnerships, and agencies in desperate need of oversight. It was occurring during President Trump’s watch as well.
On 9 September 2021, despite numerous public proclamations to the contrary President Biden issued Executive Orders 14042 and 14043 (EOs 42/43).
F4MF fought back.
On 21 December 2021, Boyden Gray & Associates (BGA) filed F4MF v. Biden (No. 3-21-cv-356).
On 21 January 2022, they achieved a seemingly impossible task; they won nationwide injunctive relief in the 5th circuit lower court. The merits of the case still had to be heard, but for the time being, a nationwide injunction ensured that the vaccine zealots were prevented from further coercive measures intended to strip federal government employees of informed consent and bodily autonomy. It was a temporary win, but it was effective.
The federal government was stopped from further self-harm by a group of government employees who cared more about the health of the nation than their own professional gain.
Appeals, responses, and numerous Amicus briefs followed the January 2022 victory. Employees seeking refuge from incoherent and changing pandemic mitigation measures grew quickly, but after drawing a three judge panel on appeal, victory temporarily shifted to the USG defendants. The panel from the 5th Circuit Court of Appeals consisting of two Clinton appointees and one George H.W. Bush appointee, ruled in favor of DOJ. The majority opinion ordered the case remanded to the lower court for dismissal on grounds of lack of jurisdiction.
Judges Carl E. Stewart and James L. Dennis sided with DOJ’s argument that federal government employees lacked jurisdiction to seek pre-enforcement challenge. According to the majority, the Civil Service Reform Act (CSRA) only allows federal government employees to seek judicial review after they have suffered adverse employment action.
Put in simple terms, they can only sue the government after exhausting Equal Employment Opportunity (EEO), Merit Service Protection Board (MSPB), and Office of Special Counsel (OSC) administrative actions. Employees were also required to demonstrate they had suffered deleterious employment action exceeding statutory predefined minimum requirements. If the Biden administration had their way, patriots responsible for our defense, intelligence, roads, borders, education, and other foreign and domestic policy issues had to get fired before they could sue.
EEO, MSPB, and OSC are tools designed to protect the government. They don’t protect the employee. Results of those investigations can take years and the individuals responsible for the adverse actions are often never held personally responsible. Members of the intelligence community (IC) are subject to far more opaque anti-harassment programs that are completely shielded from effective oversight. They are not afforded MSPB or OSC protections, except when there is a significant conflict of interest disallowing proper investigation, and only after a rare approval from the Director of National Intelligence (DNI) Office of Inspector General (OIG).
When dealing with individual actions that may involve illegal or discriminatory behavior, these government protections could be described as a wise way to increase the efficiency of government operations. The measures ensure the important tasks are being completed, while infrequent and nettlesome administrative decisions are compartmented from the larger workforce.
When the executive office mandates unconstitutional, illegal, and morally questionable acts for the whole of the federal government, the system fails in ways never imagined.
Despite the depressing results, Judge Rhesa Barkdale’s dissenting opinion provided the legal justification for F4MF’s legal team to seek an en banc decision at the 5th Circuit Court of appeals. The injunction was left in place while plaintiffs and defendants waited to hear if the 17-judge panel would adjudicate on the case.
On 27 June 2022, the court agreed to hear the appeal allowing for an extension of the nationwide injunction until a final ruling on jurisdiction was rendered. As the pandemic waned and some of the more ridiculous requirements levied against the unvaccinated receded, employees who had been subjected to outrageous discriminatory behavior by their colleagues started to believe they might win. The ruling did not solve the fundamental issue of executive office overreach, but it was a pivotal decision for the plaintiffs that had endured harassment and the loss of employment for over nine months.
On 13 September 2022, F4MF’s board of directors and many members met in New Orleans to hear the oral arguments. The board of directors are employed by the federal government globally in the Department of State (DOS), the Central Intelligence Agency (CIA), and U.S. Customs and Border Patrol, and at the time other agencies were represented by former board members. This was the first time the entire board was able to meet face-to-face.
DOJ’s attorney was left stumbling through the same arguments related to CSRA and workforce efficiency, while new vaccine safety and efficacy reporting made their arguments a theater of the legally absurd. Judges posed questions challenging DOJ’s attorney Charles Scarborough, as well as BGA’s attorney Trent McCotter, but F4MF members left the courtroom more confident than they had been in over a year.
F4MF waited a little over six months for the en banc ruling, and in the interim, the White House had begun signaling that the pandemic was soon ending. Some of the more invasive mitigation measures, like mandatory testing, were scaled back in late 2022 and 2023. Although many EEO and OSC complaints were being dismissed, despite case law strongly supporting the complainants, F4MF members remained optimistic.
On 23 March 2023, the court ruled in favor of F4MF. Judge Andrew Oldham’s opinion was joined in full or in part in the 10-7 ruling, and only addressed the question of jurisdiction, but two key findings became a matter of case law.
Broad vaccine mandates, lacking a targeted application were legally defined harm.
Plaintiffs were permitted an exception to CSRA and a right to seek pre-enforcement judicial review.
Vaccine mandates are different than other actions that can be taken by the Executive Office and allow for an exception given the permanent nature of medical interventions. A request to wear a uniform to work is reasonable because it could be taken off at the end of the day. The execution of that requirement did not extend into the employee’s personal life.
DOJ’s argument implied that the President could demand all sorts of invasive requirements. He could mandate height and weight standards for all federal government employees to combat obesity. The multitude of maladies associated with even minor weight problems are demonstrably more pervasive and damaging to workforce efficiency than COVID has ever been to working age adults.
By April 2023 when the opportunity to end the emergency presented itself, Biden justified continuation of their emergency powers to ensure they could finish their important work… Most of the proletariat were left wondering how much worse feudal technocrats could make their lives by extending an emergency that had already vanished.
On 1 May 2023, the Biden administration rescinded EOs 42/43. The pandemic ended exactly how it started: politically. The case counts were already a thing of the past, COVID-19 was no longer the top story on every mainstream news network, and the elite were spoon feeding new distractions daily in a vain hope the unvaccinated would grant them amnesty for crimes that are now just beginning to reveal themselves. As a result of the mandate reversal, courts began identifying key cases as moot.
On 12 May 2023, F4MF sought summary judgement from the 5th district court. Citing the en banc decision, BGA argued that the rescission of EOs 42/43 did not preclude the President or a future administration from reissuing another vaccine mandate.
The executive office did not appear to fully grasp just how much opposition the EOs and the Operational Safety and Health Administration (OSHA) dictates would face. National Federation v. OSHA went all the way to the Supreme Court, and OSHA was forced to immediately cease most of the actions that were a result of Emergency Temporary Standard (ETS) measures affecting health care workers and companies with over 100 employees.
Doctors, nurses, and first line responders in federally funded facilities are still left vulnerable to future infringements on bodily autonomy, but most of the measures that tore the country apart were falling to pieces. The architects responsible for the COVID response would have preferred a clear pathway to full compliance, but barring outright court wins, sweeping the potentially damaging case law off the playing field was a viable second option.
Stop and really let that sink in…
The president threw the entire government into disarray, destabilized trust in institutions, dismantled health privacy norms, damaged the nation’s national security, and destroyed 1st Amendment protections. When the court cases failed to support the dubious justifications for unparalleled executive overreach, the Biden administration, like an immature and petulant child, flipped the game board before his opponent could win.
By rescinding EOs 42/43 before key decisions could be made in courts across the US, the administration provided justification for DOJ to identify damaging cases and remove them from the playing field. Hypothetically, should vaccine mandates resurface during the next pandemic, those in opposition to attacks on bodily autonomy would already have a means to quickly seek legal protections.
The passage of the omnibus $858 billion defense spending bill codified the right of military personnel to refuse a COVID-19 vaccine. It did not require full restitution to personnel subject to disciplinary action, but it was sufficient for the courts to determine that legislative measures had been implemented that rectified alleged harms. The court will almost always refrain from rulings that have been adequately addressed by legislation, and this provided justification for moot rulings.
Hypothetically, if DOJ had refrained from appealing the case to the Supreme Court and it was not declared moot, F4MF’s case would proceed to the lower court for summary judgement. F4MF members are confident that they would win that battle.
If the judge determined the case was moot and DOJ refrained from appealing to the Supreme Court, all further legal actions would cease, but the previous lower court rulings would stand. Future lawsuits related to vaccine mandates would enjoy support from case law that was a product of F4MF v. Biden.
DOJ’s justification for invoking vacatur is a sly move resulting from the 11 May declaration that the pandemic had ended, while capitalizing on the ruling that came out of Payne v. Biden (62 F 4th 598, D.C. 2023). This case contradicted the jurisdiction and pre-enforcement ruling cemented in the 5th circuit court of appeals.
Even if the pandemic had not ended, F4MF’s case and Payne v. Biden could invoke Supreme Court review. The cases would have had many of the same jurisdictional arguments in lower courts related to the scope of injunctions, CSRA administration, and other areas of employment law; however, the meat of the argument about executive overreach could eventually require review given the differing opinions from the courts.
The Supreme Court often steps in when the results of nationwide litigation appear to be inconsistent or of sufficient difference to warrant additional scrutiny.
When the USG announced the end of the vaccine mandates, theoretically if F4MF had lost a series of legal battles in the lower courts, but there were conflicting results in other courts, it would be reasonable for F4MF or other litigants from other cases to ask for vacatur from the Supreme Court. The legal battle became moot for reasons beyond the control of the plaintiffs, disallowing higher court review of the disparate findings from across the country.
In F4MF v. Biden, the USG created the conditions to call on courts to identify cases as moot. They could have easily ended the declaration of pandemic emergency, without ending the vaccine mandate. If the vaccine provides protection and improves workforce efficiency, why not seek legal justification to continue to promote boosters and regular updates?
Maybe the science changed … again…
Furthermore, they could have asked specifically for a writ of certiorari to allow for final judicial review of this important legal battle.
By not asking the Supreme Court to weigh in on the merits of the case, rather than the narrow administrative action that was requested, DOJ is signaling they don’t like the current odds of success. By asking for vacatur, they are indicating that they intend to do it again. The administration does not want to end its fight with F4MF with case law permitting exceptions to the CSRA. They do not want to risk having to face judicial review every time they exceed Constitutional boundaries.
A handful of federal government insiders built an organization boasting over 9000 members working in just about every federal agency and department in the USG. The organization has levied seven federal court cases against the government… and more are planned. They intend to force accountability and reform from the inside and ensure the sprawling bureaucracy represents the values of average Americans. F4MF members are awaiting a Supreme Court decision that will either deny DOJ’s request and remand the decision to lower courts, approve the request and require oral arguments, or approve the request and drown the lower court rulings in the swamp.
F4MF members are confident and have been silently fighting for the rights of every American for the last two years.
Why is this case so important?
This is the only lawsuit that will establish case law ensuring individuals have a right to judicial review before executing a future mandate.
More important, however, the federal government is the largest employer in the United States. There are over four million public servants vulnerable to these illegal acts. If unconstitutional measures can be forced on civil servants and contractors, the rest of the country’s productive workforce won’t be hard to quickly intimidate, coerce, and control into submission. Freedom will be lost.
F4MF are the happy warriors Americans should support.
The Biden administration is scared. They know integrity is more infectious than a pandemic caused by the hubris of health bureaucrats involved in violations of banned research. They will be held accountable.
The views expressed are my own and do not represent the views of the US Government or Feds for Medical Freedom.
This is an excellent article with a great rundown that made the motivations and actions of the parties involved very easy to understand. Thank you for publishing this! I sincerely pray that F4MF WINS!
They were trying to eliminate the control group. The .gov is a criminal enterprise, scam and a grift.