COLORADO SPRINGS, Colo. (KRDO) -- A federal lawsuit seeking injunctive relief is challenging the Department of Defense's vaccine mandate. The lawsuit, filed on behalf of three U.S. Air Force Academy cadets who were barred from graduation, claims the mandate violates federal law.
On May 17, 13 Investigates learned that four unvaccinated Air Force cadets would be denied graduation, their commissioning assignments would be voided, and they may have to pay back their education costs.
Then, days after the announcement, the number of unvaccinated cadets dwindled to three after one cadet choosing to get the shot. The man filing the lawsuit on the cadets' behalf is John Michels, an attorney with the Federal Practice Group in Washington D.C.
Michels argues in the lawsuit that the Air Force Academy violated the cadets' First Amendment rights when they denied all of their religious exceptions. One cadet told 13 Investigates the denial letters were exactly the same with the names switched at the top.
"If you are going to tell people 'yeah we are going to let you practice your religion' and engage in activities that say I'm not going to take this shot because of my religious beliefs, you tell people that, and then you categorically or systematically exclude them from the program because of that, then you are running afoul of the first amendment protections," Michels said.
The lawsuit claims the religious exemption denials infringe upon protections in the Religious Freedom Restoration Act enacted by Congress in 1993.
The Act, "prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."
Michels argues that the burden of proof lies solely with the Air Force Academy. In the cadets' religious denial letters, the Air Force cited military readiness and the health and safety of the force as the reasons, reasons Michels says are undercut.
"The compelling interest that the government argues is for readiness but the readiness argument is undercut by the fact that they have lots of unvaccinated people wandering around," Michels said.
The lawsuit also claims the vaccine mandate violated U.S. Code 1107, which provides guidelines for the implementation of an investigational new drug or a drug unapproved for its applied use.
Michels claims the DOD approved the vaccine mandate when the widely available vaccine was only under "emergency use authorization." The lawsuit claims the Secretary of the Defense went against his own memo written in August 2021, mandating the shot for service men and women.
The memo states, "mandatory vaccination against COVID-19 will only use COVID-19 vaccines that receive full licensure from the Food and Drug Administration (FDA), in accordance with FDA-approved labeling and guidance."
"The secretary of defense writes in the memo, this vaccination program will only occur with fully licensed vaccines. That's what his memo says, and then they started ordering shots," Michels said. "You're on my side of the highway and on my side of the highway, when it says legally distinct and we're applying a law, then this vaccine is not licensed."
The lawsuit has been filed in South Carolina District Court. A spokesperson for the Air Force Academy said they cannot comment on pending litigation.
Michels said the goal is for the judge to order the immediate halt of the vaccine mandate by DOD. If they receive that, the long-term goal is an order stating the mandate was unconstitutional from the start.