A judge has dismissed a lawsuit by a federal employee challenging the constitutionality of President Joe Biden’s executive order mandating COVID-19 vaccinations for federal workers.
Although Brian Brass of Jefferson County called the vaccination requirement slavery and “rape,” U.S. District Court Judge Charlotte Sweeney last month followed the lead of other federal courts in finding that Brass had to follow the process in place for appeals from public servants. This process does not include filing a lawsuit in federal trial court.
The Civil Service Reform Act “deprives this Court of jurisdiction over Mr. Brass’s challenge,” Sweeney wrote in his Oct. 20 order.
The ruling is one of many failed attempts to date in Colorado to overturn COVID-19 vaccination mandates from various levels of government, with cases brought by university employees, municipal contractors and military personnel being purely and simply discarded or continued in a limited form.
On September 9, 2021, amid an increase in COVID-19 infections associated with the delta variant of the virus, Biden issued Executive Order 14043 deeming it “necessary to require vaccination against COVID-19 for all federal employees , subject to the required exceptions. by the law.”
Brass, an employee of the National Institute of Standards and Technology, filed the lawsuit against Biden and U.S. Secretary of Commerce Gina M. Raimondo on Oct. 15, four days before seeking a religion-based exemption from the vaccination requirement.
Brass rooted his legal demand in the Fourth Amendment guarantee that people have a right”to be safe in their persons, homes, papers and effects”, a guarantee which applies to abusive searches and seizures.
“No statute expressly or implicitly authorizes the President to order the involuntary vaccination of American citizens,” Brass, who is representing himself, wrote in court. “The dictatorial executive order issued by President Biden has not been authorized.”
As part of his arguments, Brass claimed that vaccines were “a rape, a violation of the body.” He advanced the unproven claim that vaccines are “dangerous” and rhetorically asked if the president was also allowed to mandate “other medical procedures” like sterilization or lobotomies.
Brass further asked a judge to force Biden to take a cognitive test, saying he had evidence the president “suffers from dementia.”
The government decided to dismiss the lawsuit in April, noting that the Commerce Department, the parent agency of Brass’s employer, had not yet acted on Brass’ religious exemption request, and that it would not be penalized for non-compliance while the application is pending. The US Department of Justice also challenged the characterization of Brass’ claim as an alleged violation of the Fourth Amendment.
“The applicant is not forcibly vaccinated. This case is not about whether an individual has a constitutional right to refuse vaccination generally, but whether vaccination is a permitted condition of employment,” Assistant US Attorney Elizabeth Hagerty wrote.
In September, U.S. Magistrate Judge Michael E. Hegarty reviewed the case and recommended dismissal for several reasons. First, he agreed with the government that Brass had faced no consequences so far while his exemption was pending. Second, Brass’s claim was actually a dispute over the terms of his employment, not a Fourth Amendment controversy.
“The applicant retains the right to refuse vaccination, but if denied an exemption, they may be subject to the consequences of their employing agency,” Hegarty wrote on Sept. 22. “Again, the right to be secure in the person is generally about the right to be free from warrantless searches, not bodily autonomy.”
Finally, the trial judge held that the federal trial court lacked jurisdiction to even hear Brass’s claims. In April, separate appeals courts based in Richmond and New Orleans issued rulings determining that challenges to Executive Order 14043 must follow the procedure of the Civil Service Reform Act. This process requires an appeal to a government panel, usually followed by an appeal to the United States Court of Appeals for the Federal Circuit.
Likewise, Hegarty believed that Brass could not pursue his claim directly in the Colorado trial court. Although Brass has attempted to portray his lawsuit as affecting the constitutional rights of all American citizens, “the vaccination warrant only applies to him because he is a federal employee,” Hegarty noted.
Neither the government nor Brass took issue with Hegarty’s reasoning or conclusions. Because Sweeney believed the statute did not grant the court jurisdiction to hear the trial in the first place, she adopted Hegarty’s recommendation on that basis.
In November 2021, the White House reported that 96.5% of executive branch workers, to whom the mandate applies, were either in the process of getting vaccinated or requested an exemption. The vast majority of these workers had received at least one dose of the vaccine.
The case is Brass c. Biden et al.
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