Court filing

Complaint — Health Freedom Defense Fund v. Biden (M.D. Fla.)

Filed November 12, 2021 in Health Freedom Defense Fund, Inc. v. Biden, Jr; one of 2 filings from this case.

Record facts

Court	U.S. District Court for the Middle District of Florida, Tampa Division
Filed	2021-11-12

U.S. District Court for the Middle District of Florida, Tampa Division · No. 8:21-cv-02679-MSS-JSS · Doc. 1 · 2021-11-12 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

HEALTH FREEDOM DEFENSE
FUND, a Wyoming Not-for-Profit
Corporation, FEDERAL
EMPLOYEES FOR FREEDOM, a
voluntary unincorporated association,
RAYLENE WORLEY, an individual,
CHRISTOPHER M. WALSH, an
individual, CHARLES MATTHEW
CONROY, an individual, JUSTIN
AARON CURTIS, an individual,
KIMBERLY KESSEL ELSHOLZ,
an individual, and JOSEPH AARON
WILLIAMS, an individual,

Plaintiffs,

JOSEPH R. BIDEN, in his official
capacity as President of the United
States; SAFER FEDERAL
WORKFORCE TASK FORCE;
KIRAN AHUJA in her official
capacity as co-chair of the Safer
Federal Workforce Task Force and
the director of the Office of Personnel
Management; ROBIN CARNAHAN
in her official capacity as co-chair of
the Safer Federal Workforce Task
Force and Administrator of the
General Services Administration; and
Jeffrey Zients in his official capacity
as a co-chair of the Safer Federal
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Case No. ______________________

COMPLAINT FOR VIOLATION OF
CIVIL RIGHTS AND
DECLARATORY AND
INJUNCTIVE RELIEF

DEMAND FOR JURY TRIAL

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Workforce Task Force and COVID-
19 Response Coordinator.

Defendants.
__________________________________________________________________

I.
INTRODUCTION

1.
At issue is American virtue. It comes to the court through the lens of
the right to self-determination and bodily autonomy encompassed within the right to
privacy.
2.
The right to self-determination over one’s own body is neither tethered
to, nor predicated upon, objective fact-finding of what is purportedly right, correct,
or true as judged by contemporary society. It is the province of the soul. It cannot,
and ought not be, legislatively usurped and second guessed by the Executive Branch
in reliance on the best intentions of experts in a decidedly novel, and ever evolving
area of indisputably unsettled science.
3.
Nothing is more fundamental to the role government plays in the Great
American Experiment, than the notion that mankind is “endowed by their Creator
with certain unalienable Rights[.]” (Declaration of Independence, 1 Stat. 1.) As such,
only “to secure these Rights, Governments are instituted among Men, deriving their
just Powers from the Consent of the Governed[.]” (Ibid).
4.
In keeping with rights being inherent to the very nature of mankind, the
Bill of Rights grants none. Instead, it prohibits governmental intrusion upon the
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intrinsic, existing rights of the governed, by further making clear, for example, that
“Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press[.]” (U.S.
constitution amendment I.)
5.
In the avoidance of doubt, the “enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others retained by the
people.” (U.S. constitution amendment IX.)
6.
In times of strife and turmoil, it is perhaps more important than ever to
keep in mind the very foundation on which our nation was built. Indeed, it is that
foundation which chartered the course for where we find ourselves today. Private
matters of personal, bodily choice are reserved by the governed. The governed have
not granted that power to the government.
7.
Under the Constitution then, those matters retained by the governed are
to be decided by the individual, on a case-by-case basis. Not by sweeping mandates
making that decision for all, without regard to the various medical situations, beliefs,
and morals of each person.
8.
The High Court teaches that our Constitution “is made for people of
fundamentally differing views, and the accident of our finding certain opinions
natural and familiar, or novel, and even shocking, ought not to conclude our
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judgment upon the question whether statutes embodying them conflict with the
Constitution of the United States.” Lochner v. New York, 198 U.S. 45, 76 (1905).
9.
The issue to be decided here then is not whether the emerging science
and statistics support, or refute, the use, efficacy, and safety of the vaccines, but
whether that decision remains with, and is reserved by, the individual into whose
body the vaccine will be injected, or whether instead under the Constitution the
people gave that right to the government to decide for them through sweeping
Executive Orders.
10.
The people have, and have retained, the right to self-determination,
particularly in matters of choice concerning bodily autonomy. The people have
never delegated those rights to the government. As such, the government has neither
the just power, nor the consent of the governed, to forcibly decide for them.
II.
PARTIES

11.
HEALTH FREEDOM DEFENSE FUND (“HFDF”) is, and at all times
relevant hereto was, a not-for-profit public benefit Wyoming corporation with its
headquarters in Sandpoint, Idaho. HFDF is a member organization that seeks to
advocate for and educate the public on the topics of medical choice, bodily
autonomy, and self-determination, and that opposes laws and regulations that force
individuals to submit to the administration of medical products, procedures, and
devices against their will. HFDF’s members include federal government employees
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who reside in this District and are directly affected by the subject actions of
Defendants. They accordingly could have brought suit in their own right, but have
chosen to rely on HFDF to represent their interests in this case. The interests at stake
in this case are germane to HFDF’s purpose, and neither the claims asserted, nor the
relief requested requires the individual participation of its members.
12.
Plaintiff FEDERAL EMPLOYEES FOR FREEDOM (“FEFF”) is, and
at all times relevant hereto was, a voluntary unincorporated association of
approximately 6,000 federal employees whose purpose is to advocate for the
constitutional rights and freedoms concerning bodily autonomy, self-determination,
privacy, and religious freedom, in particular as it relates to governmental mandates
requiring vaccination against SARS-CoV-2, the virus that causes COVID-19 disease
(“COVID”). FEFF’s members include federal employees who reside in this District
and are directly affected by the subject actions of Defendants. They therefore could
have brought suit in their own right, but have chosen to rely on FEFF to represent
their interests in this case. The interests at stake in this case are germane to FEFF’s
purpose, and neither the claims asserted, nor the relief requested requires the
individual participation of its members.
13.
Plaintiff RAYLENE WORLEY is, and at all times relevant hereto was,
a resident of Hillsborough County, Florida, and is employed as an Intelligence
Research Specialist with the Office of Professional Responsibility. As part of her
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job duties, Ms. Worley regularly investigates the misuse of government databases,
and is thus familiar with their vulnerabilities. She also has been a victim of two data
breaches on government databases. Based on this and her knowledge of applicable
laws, regulations, policies, and procedures, Ms. Worley objects to the broad and
intrusive Privacy Act disclosure form that every employee must sign and submit in
order to be in compliance with the vaccination mandate.
14.
Plaintiff CHRISTOPHER M. WALSH is, and at all times material
hereto was, a resident of Pasco County, Florida, and works as an Air Traffic
Controller. Mr. Walsh has recovered from COVID-19, and therefore has natural
immunity to the disease. For this and other reasons, he objects to being vaccinated
against his will.
15.
Plaintiff CHARLES MATTHEW CONROY is, and at all times
relevant here to was, a resident of the State of Florida, and employed as a Fire
Captain with the Department of Defense at Eglin Air Force Base in Florida. Mr.
Conroy has not been fully vaccinated against COVID and has religious and moral
reasons which cause him to oppose the administration of the vaccine as it relates to
his own body.
16.
Plaintiff JUSTIN AARON CURTIS is, and at all times relevant hereto
was, a resident of the State of Florida, and employed as a Fire Captain at Eglin Air
Force Base in Florida. Mr. Curtis has not been fully vaccinated against COVID and
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opposes the forced requirement of being full vaccinated against COVID as a
condition of his continued employment in violation of his constitutional rights and
freedoms concerning bodily autonomy, self-determination, privacy, and religious
freedom.
17.
Plaintiff KIMBERLY KESSEL ELSHOLZ is, and at all times relevant
hereto was, a resident of the State of Florida, and employed as a Deputy U.S.
Marshall in Florida. Ms. Elsholz has not been fully vaccinated against COVID and
medical reasons for which cause her to oppose the administration of the vaccine. Ms.
Elsholz is further opposed to vaccination against COVID as the none of the vaccines
presently available to her have received full FDA approval.
18.
Plaintiff JOSEPH AARON WILLIAMS is, and at all times relevant
hereto was, a resident of the State of Florida, and employed as an Analysist with the
Department of Defense. Mr. Williams has not been fully vaccinated against COVID
and opposes the forced requirement of being fully vaccinated against COVID as a
condition of his continued employment in violation of his constitutional rights and
freedoms concerning bodily autonomy, self-determination, privacy, and religious
freedom.
19.
HFDF, FEFF, Walsh, Worley, Conroy, Curtis, Elsholz, and Williams
are hereinafter referred to collectively as Plaintiffs.
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20.
Defendant, JOSEPH R. BIDEN (“President Biden”) is, and at all times
relevant hereto was, the President of the United States. President Biden is sued
herein in his official capacity.
21.
Defendant SAFER FEDERAL WORKFORCE TASK FORCE
(“SFWTF”) is, and at all times relevant hereto was, a task force established by
President Biden on January 20, 2021 Executive Order 13991.1 Its stated purpose is
to provide “ongoing guidance to the heads of agencies on the operation of the Federal
Government, the safety of its employees, and the continuity of Government function
during the COVID-19 pandemic.” 86 FR 7045, 7046.
22.
Defendant KIRAN AHUJA is, and at all times relevant hereto was a
co-chair of the SFWTF and the director of the Office of Personnel Management.
Defendant Kiran Ahuja is sued in her official capacities.
23.
Defendant ROBIN CARNAHAN is, and at all times relevant hereto
was, a co-chair of the SFWTF and administrator of the General Services
Administration. Defendant Robin Carnahan is sued in her official capacities.
24.
Defendant JEFFREY ZIENTS is, and at all times relevant hereto was,
a co-chair of the SFWTF and COVID-19 Response Coordinator. Defendant Jeffrey
Zients is sued in his official capacities.

1 https://www.federalregister.gov/d/2021-01766

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III.
JURISDICTION AND VENUE

25.
This Court has jurisdiction under 28 U.S.C. §§ 1331, 1346, 1361, and
1367.
26.
The Court is authorized to award and request declaratory and injunctive
relief under 5 U.S.C. § 706 and 28 U.S.C. §§ 1361 and 2201-02.
27.
Venue is proper within this District pursuant to 28 U.S.C. § 1391(e)
because Plaintiffs Walsh and Worley, as well as other members of Plaintiffs HFDF
and FEFF, reside in this District.
IV.
FACTUAL BACKGROUND

A.
The Executive Order Creating SFWTF.

28.
On January 20, 2021, President Biden Executive Order No. 13991:
“Protecting the Federal Workforce and Requiring Mask-Wearing” (“EO 13991”).
86 FR 7045.2
29.
Among other things, EO 13991 established the SFWTF. The SFWTF
is co-chaired by Defendants: (i) Kiran Ahuja as Director or Office of Personal
Management; (ii) Robin Carnahan as the Administrator of General Services; and (iii)
Jeffrey Zients as the COVID 19-Response Coordinator.

2 https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01766.pdf
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30.
The scope of EO 13991, and thus the reach of the SFWTF which it
created, applies to all Federal employees, which it broadly defined to mean
“employees . . . working for the executive branch[.]”
31.
Plaintiffs Worley, Conroy, Curtis, Elsholz, and Williams, as well as
affected members of Plaintiffs HFDF and FEFF, are therefore subject to the dictates
of SFWTF, as are the agencies themselves, for whom those Plaintiffs work.
32.
The approximately six thousand (6,000) members of FEFF are
employees of various agencies of the federal government. Some members have
declined to disclose medical records regarding their vaccination status to their
employers altogether. Others have declined to provide constitutionally protected
information relating to their religious freedoms and/or confidential medical
information to their employers in support of an exception to the government’s policy
requiring its employees to be vaccinated for COVID.
33.
EO 13991 obligates the heads of the various executive branch agencies
to “promptly provide the Task Force a report on COVID-19 safety protocols, safety
plans, or guidance regarding the operation of the agency and the safety of its
employees, and any other information that the head of the agency deems relevant to
the Task Force’s work.” 86 Fed. Reg. 7047.

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B.
The Mandate, its Requirements, and Consequences for Non-

Compliance.

34.
With the SFWTF in place, on September 9, 2021, President Biden
issued Executive Order No. 14043 “Requiring Corona Virus Disease 2019
Vaccination for Federal Employees” (the “Mandate”).3 86 Fed. Reg. 50989 (Sept. 9,
2021).
35.
Section 2 of the Mandate is titled: “Mandatory Coronavirus Disease
2019 Vaccination for Federal Employees.” It directs: “Each agency shall implement,
to the extent consistent with applicable law, a program to require COVID-19
vaccination for all of its Federal employees, with exceptions only as required by law.
The Task Force shall issue guidance within 7 days of the date of this order on agency
implementation of this requirement for all agencies covered by this order.” 86
Fed.Reg. at 50,990.
36.
In response SFWTF dutifully issued guidance to the agencies on
implementation of the Mandate via the “Frequently Asked Questions” page of its
website.4 Implicated here is the “Vaccinations” section of the Frequently Asked
Questions page.

3 https://www.federalregister.gov/d/2021-19927

4 https://www.saferfederalworkforce.gov/faq/ (last visited 11/3/2021)

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37.
The “Vaccinations” section instructs the various agencies that “Federal
employees need to be fully vaccinated by November 22, 2021.” 5
38.
It further directs that “agencies must require documentation from
employees to prove vaccination, even if an employee has previously attested to their
vaccination status.” (Emphasis added)
39.
Acceptable documentation attesting to the employee’s vaccination
status consists of:
[A] copy of the record of immunization from a health care
provider or pharmacy, a copy of the COVID-19
Vaccination Record Card, a copy of medical records
documenting the vaccination, a copy of immunization
records from a public health or state immunization
information system, or a copy of any other official
documentation containing required data points (the
required data points for such other official documentation
are the type of vaccine administered, date(s) of
administration, and the name of the health care
professional(s) or clinic site(s) administering the
vaccine(s)).

40.
The implementation guidelines promulgated by SFWTF further
caution:
Employees covered by Executive Order 14043 [the
Mandate] who fail to comply with a requirement to be
fully vaccinated or provide proof of vaccination and
have neither received an exception nor have an exception
request under consideration, are in violation of a lawful
order. Employees who violate lawful orders are subject

5 https://www.saferfederalworkforce.gov/faq/vaccinations/ (last visited 11/3/2021)
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to discipline, up to and including termination or
removal. (Emphasis added)

41.
The guidelines therefore establish that an employees’ failure to provide
satisfactory documentation of COVID vaccination status to an agency employer is
itself an independent violation of the Mandate, irrespective of whether the employee
is, or is not, vaccinated.
C.
The Medical and Religious Exceptions to the Mandate and the
Required Documentation to be Submitted to Agency to Apply.

42.
Acknowledging the constitutional and legal ramifications of the
Mandate, the “Vaccinations” section of SFWTF’ Frequently Asked Questions page
contains a subsection entitled: “Limited Exceptions to Vaccination Requirement” as
updated. It states: “Federal employees must be fully vaccinated other than in limited
circumstances where the law requires an exception.”
43.
SFWTF admits that the law requires, among other things, religious,
medical, and disability exemptions to the Mandate .
44.
In response to the question “[s]hould agencies provide employees who
are seeking a legally required exception to the vaccination requirement with a form?”
SFWTF responds:
Yes. Agencies can refer to the following templates to
develop a form for employees who are seeking an
exception based on a medical condition (template issued
October 4, 2021) or based on religion (template updated
October 29, 2021). The information on the forms may be
used by the agency to help determine whether the
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employee is entitled to an accommodation. The agency
may also ask for other information as needed to determine
if the individual is legally entitled to an accommodation.
(Italics in original)

45.
In turn, the forms provided by SFWTF for agency use indicate that
employees requesting a medical exemption “must complete Part 1 of this form” and
their “medical provider must complete Part 2 of this form.”6
46.
The “Request for Medical Exception to the COVID-19 Vaccination
Requirement” form requires the employee’s medical provider to give the agency “at
least the following information, where applicable:”
1. The applicable contraindication or precaution for
COVID-19 vaccination, and for each contraindication or
precaution, indicate: (a) whether it is recognized by the
CDC pursuant to its guidance; and (b) whether it is listed
in the package insert or Emergency Use Authorization fact
sheet for each of the COVID-19 vaccines authorized or
approved for use in the United States;

2. A statement that the individual’s condition and medical
circumstances relating to the individual are such that
COVID-19 vaccination is not considered safe, indicating
the specific nature of the medical condition or
circumstances that contraindicate immunization with a
COVID-19 vaccine or might increase the risk for a serious
adverse reaction; and

3. Any other medical condition that would limit the
employee from receiving any COVID-19

6
https://www.saferfederalworkforce.gov/downloads/DISABILITY%20REQU
EST%20FORM%20-%2020211004_510pm%20-%20MH508.pdf
(Last
accessed November 4, 2021)
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vaccine.

47.
The “Request for a Religious Exception to the Covid-19 Vaccination
Requirement” form explains “Federal law may entitle a Federal employee who has
a religious objection to the COVID-19 vaccination requirement to an exception from
that requirement . . .” It instructs that “[i]n order to request a religious exception,
please fill out this form.” 7
48.
The religious exemption form “encourage[s] [the employee] to provide
as much information as possible to enable the agency to evaluate [the] request.” It
further provides “[w]here there is an objective basis to do so, the agency may ask
you for additional information as needed to determine if you are legally entitled to
an exception.” 8
49.
The religious exemption form requires the employees to do each of the
following:
1. Please describe the nature of your objection to the
COVID-19 vaccination requirement.

2. Would complying with the COVID-19 vaccination
requirement substantially burden your religious exercise
or conflict with your sincerely held religious beliefs,
practices, or observances? If so, please explain how.

7
https://www.saferfederalworkforce.gov/downloads/RELIGIOUS%20REQU
EST%20FORM_FINAL%20REVIEW_20211003%2010.29%2011am.pdf
(Last visited November 4, 2021)

8 Id.
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3. Please provide any additional information that you think
may be helpful in reviewing your request. For example:

• How long you have held the religious belief
underlying your objection

• Whether your religious objection is to the use of
all vaccines, COVID-19 vaccines, a specific type of
COVID-19 vaccine, or some other subset of vaccines

• Whether you have received vaccines as an adult
against any other diseases (such as a flu vaccine or a
tetanus vaccine)9

D.
COVID Spread Characteristics and Transmission Risk

50.
A preponderance of evidence presently shows an increased “viral load”
after vaccination, which tends to actually increase the spread of COVID by
vaccinated people. A recent study of vaccine breakthrough delta variant infections
found vaccinated individuals carried 251 times the load of COVID viruses in their
nostrils compared to unvaccinated persons from early in the pandemic.10
51.
According to the CDC, for those who are fully vaccinated and get
infected (i.e., “breakthrough infections”), there is still a risk of transmission to
others. In July 2021, a CDC study CDC noted 469 cases of COVID where
approximately three quarters (346; 74%) of cases occurred in fully vaccinated
persons; i.e., those who had completed a 2-dose course of the mRNA vaccine

9 Id.
10 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3897733 (Last visited
11/11/2021)
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(Pfizer-BioNTech or Moderna) or had received a single dose of the Janssen (Johnson
& Johnson) vaccine.
52.
More recently, the CDC has admitted to having no evidence that people
with natural immunity have transmitted COVID to others.
53.
Current studies show that fully vaccinated people carry the same viral
load as the unvaccinated, with the Delta variant—which is to say that current
vaccines don’t materially prevent transmission of the Delta variant.
54.
If the goal is to prevent the federal workforce from contracting and
spreading COVID within the workplace and risk transmission to the public that
depends on federal services, the evidence shows that mandatory vaccination of the
federal workforce is not rationally related to that goal.
V.
LEGAL BACKGROUND

A.
Regulations Prohibiting the Government from Requiring, and
Possessing, the Documentation Employees are Required to Submit
to Comply with the Mandate by Proving Vaccination Status
and/or Applying for a Medical or Religious Exception.

55.
Part 293 of Title 5 of the Code of Federal Regulations concerns
“Personnel Records”. While no portion of that part permits the Office of Personnel
Management to collect or require the documentation necessary to comply with the
Mandate, various parts prohibit it.
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56.
Part 293.504 of Title 5 of the Code of Federal Regulations is titled:
“Composition of, and access to, the Employee Medical File System.”
57.
It expressly excludes the very medical records, the submission of which
is required by SFWTF, for an employee to satisfy the Mandate by affirmatively
proving vaccination status.
58.
It further excludes the medical records required for an employee to
obtain a medical exception, which SFWTF acknowledges is among the
“circumstances where the law requires an exception” to the Mandate.
59.
Part 293.504 provides: “All employee occupational medical records
(which exclude employee assistance/counseling, patient, non-personal, and
epidemiological records) whether they are maintained in an automated, microform,
or paper mode, and wherever located in the agency, are part of the EMFS.”
(Emphasis added).
60.
Part 293.105 of title 5 of the Code of Federal Regulations is titled:
“Restrictions on collection and use of information.”
61.
It expressly excludes the very materials, the submission of which,
SFWTF requires for an employee to obtain a religious exception, which SFWTF
acknowledges is among the “circumstances where the law requires an exception” to
the Mandate.
62.
Subpart (a) thereof is titled “First Amendment” and provides:
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“Personnel records describing how individuals exercise
rights guaranteed by the First Amendment are prohibited
unless expressly authorized by statute, or by the individual
concerned, or unless pertinent to and within the scope of
an authorized law enforcement activity. These rights
include, but are not limited to, free exercise of religious
and political beliefs, freedom of speech and the press, and
freedom to assemble and to petition the government.

63.
Plaintiffs have not authorized the disclosure and submission of “records
describing how [they] exercise rights guaranteed by the First Amendment” to their
employers. SFWTF’ s guidelines have impermissibly conditioned their disclosure,
and indeed required them, upon compliance with the Mandate for those seeking
compliance through religious exception.

B.
Fundamental Constitutional Rights Violated by the Mandate.
64.
It is well settled that the “rights to determine one’s own medical
treatment, and to refuse unwanted medical treatment,” are “fundamental[,]” and
individuals have “a fundamental liberty interest in medical autonomy.” Coons v.
Lew, 762 F.3d 891, 899 (9th Cir. 2014) (as amended) (internal cites omitted,
emphasis added), cert. denied, Coons v. Lew, 575 U.S. 935, 135 S. Ct. 1699, 191
LEd2d 675 (2015).
65.
“Governmental actions that infringe upon a fundamental right receive
strict scrutiny.” Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1208 (9th Cir. 2005),
as amended by 447 F.3d 1187 (9th Cir. 2006). See also Washington v. Harper, 494
U.S. 210, 223 (1990) (acknowledging in dicta that, outside of the prison context, the
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right to refuse treatment would be a “fundamental right” subject to a “more rigorous
standard of review”).
66.
As such “a competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment.” Cruzan v. Dir., Missouri Dep’t of
Health, 497 U.S. 261, 278 (1990).
67.
This right is rooted in “the common-law rule that forced medication
was a battery, and the long legal tradition protecting the decision to refuse unwanted
medical treatment.” Washington v. Glucksberg, 521 U.S. 702, 725 (1997).
68.
The fundamental right of due process “substantively protects a person’s
rights to be free from unjustified intrusions of the body, to refuse unwanted medical
treatment and to receive sufficient information to exercise these rights intelligently.”
Benson v. Terhune, 304 F.3d 874, 884 (9th Cir. 2002) (internal citations omitted).
69.
Therefore, persons have a “constitutional right to be free from state-
imposed violations of bodily integrity.” Plumeau v. Sch. Dist. No. 40 City. Of
Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).
70.
“Every violation of a person's bodily integrity is an invasion of his or
her liberty. The invasion is particularly intrusive if it creates a substantial risk of
permanent injury and premature death. Moreover, any such action is degrading if it
overrides a competent person's choice to reject a specific form of medical treatment.”
Washington v. Harper, supra, 494 U.S. at 237.
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71.
The unconstitutional conditions doctrine prohibits the government from
conditioning continued employment “on a basis that infringes [] constitutionally
protected interests . . .” Perry v. Sindermann 408 U.S. 593, 597 (1972).
72.
“[T]he very purpose of the unconstitutional conditions doctrine is to
prevent the government from subtly pressuring citizens, whether purposely or
inadvertently, into surrendering their rights.” Lebron v. Secretary, Florida Dept. of
Children and Families, 710 F.3d 1202, 1218 (11th Cir. 2013) (quoting Bourgeois v.
Peters, 387 F.3d 1303, 1324-25 (11th Cir. 2004)).
FIRST CAUSE OF ACTION
For Declaratory Judgment and Injunctive Relief
(Violation of Part 293 “Personnel Records”
of Title 5 of the Code of Federal Regulations)

73.
Plaintiffs incorporate the allegations of paragraphs 1 through 72, and
further allege:
74.
Compliance with the Mandate requires that federal employees submit
to the government either: (i) patient medical and epidemiological records showing
proof of their vaccination status, or (ii) patient medical records, epidemiological
records, or records describing how individuals exercise rights guaranteed by the First
Amendment sufficient to demonstrate to the satisfaction of Defendants, that the
federal employee qualifies for a medical and/or religious exception to the Mandate.
75.
The SFWTF acknowledges medical and religious exceptions are
required by law.
Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 21 of 30 PageID 21

76.
Parts 293.105 and 293.504 of Title 5 of the Code of Federal Regulations
prohibit Defendants’ requirement pursuant to the Mandate to produce, and indeed
their possession of, employee records of patient medical records and
epidemiological records, as required to show proof of vaccination status.
77.
Parts 293.105 and 293.504 of Title 5 of the Code of Federal
Regulations prohibit Defendants’ requirement pursuant to the Mandate to produce,
and indeed their possession of, employee records describing how individuals
exercise rights guaranteed by the First Amendment to qualify for a religious
exemption.
78.
Parts 293.105 and 293.504 of Title 5 of the Code of Federal Regulations
prohibit Defendants’ requirement pursuant to the Mandate to produce, and indeed
their possession of, employee medical records and epidemiological records to
qualify for a medical exemption.
79.
Defendants’ Mandate is therefore unlawful as the materials the federal
employees are required to submit to demonstrate compliance violates Parts 293.105
and 293.504 of Title 5 of the Code of Federal Regulations.
80.
An actual controversy exists related to the rights and obligations of the
respective parties.
81.
Plaintiffs will be irreparably harmed in the absence of an injunction.
Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 22 of 30 PageID 22

82.
Plaintiffs seek a judicial declaration that Defendants’ Mandate is
unlawful because it violates parts 293.105 and 293.504 of Title 5 of the Code of
Federal Regulations and preliminary and permanent injunctions prohibiting
Defendants from imposing employment sanctions for non-compliance with the
Mandate.
SECOND CAUSE OF ACTION
For Declaratory and Injunctive Relief
(Violation of Fourteenth Amendment Equal Protection as Applied to the
Federal Government Through the Fifth Amendment)

83.
Plaintiffs incorporate the allegations of paragraphs 1 through 72, and
further allege:
84.
Equal protection “requires that all persons subjected to ... legislation
shall be treated alike, under like circumstances and conditions, both in the privileges
conferred and in the liabilities imposed.” Engquist v. Oregon Dept. of Agr., 553 U.S.
591, 602 (2008). The touchstone of this analysis is whether the government creates
disparity between classes of individuals whose situations are arguably
indistinguishable. Ross v. Moffitt, 417 U.S. 600, 609 (1974).
85.
On its face, the Mandate treats those federal employees willing to
surrender private, confidential, patient medical and epidemiological records to the
government in violation of their constitutional rights and Parts 293.105 and 293.504
of Title 5 of the Code of Federal Regulations differently from those unwilling to do
so, irrespective of whether or not they are in fact fully vaccinated for COVID.
Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 23 of 30 PageID 23

86.
The Mandate thus discriminates against those unwilling to surrender
private, confidential, patient medical and epidemiological records to the government
in violation of their constitutional rights and Parts 293.105 and 293.504 of Title 5 of
the Code of Federal Regulations even though they are indistinguishable from those
willing to do so.
87.
There is no basis for this disparate treatment which is arbitrary and
capricious as unwillingness to surrender private, confidential, patient medical and
epidemiological records to the federal government in violation of their constitutional
rights and Parts 293.105 and 293.504 of Title 5 of the Code of Federal Regulations
has no bearing upon, and it not related to, whether those individuals are, or are not,
fully vaccinated for COVID.
88.
Defendants’ disparate treatment of those unwilling to surrender private,
confidential, patient medical and epidemiological records to the government in
violation of their constitutional rights and Parts 293.105 and 293.504 of Title 5 of
the Code of Federal Regulations is unconstitutional, unlawful, and arbitrary.
89.
An actual controversy exists involving justiciable questions related to
the rights and obligations of the respective parties.
90.
Plaintiffs will be irreparably harmed in the absence of an injunction.
91.
Plaintiffs seek a judicial declaration that Defendants’ Mandate violates
the Fourteenth Amendment Equal Protect as applied to the federal government
Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 24 of 30 PageID 24

through the Fifth Amendment and preliminary and permanent injunctions
prohibiting Defendants from imposing employment sanctions for non-compliance
with the Mandate.
THIRD CAUSE OF ACTION
For Declaratory and Injunctive Relief
(Violation of Fourteenth Amendment Substantive Due Process as Applied to
the Federal Government Through the Fifth Amendment)

92.
Plaintiffs incorporate the allegations of paragraphs 1 through 72, and
further allege:
93.
The Mandate and Defendants’ efforts and actions to apply and enforce
it violates the liberty protected by the Fourteenth Amendment to the Constitution
applicable to the federal government through the Fifth Amendment, which includes
rights of personal autonomy, self-determination, bodily integrity, and the right to
reject medical treatment.
94.
The ability to decide for oneself whether to accept or refuse medical
treatment is a fundamental right.
95.
The COVID vaccines are not vaccines, but are, as a factual matter,
treatments. They are referenced to herein as vaccines as a matter of common
phrasing, but they are not. They are treatments.
Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 25 of 30 PageID 25

96.
Indeed, the CDC recently changed its very definitions of “Vaccine” and
“Vaccinated” to eliminate the word, “immunity,” from those definitions,11 thus
tacitly acknowledging that the COVID “vaccines” are treatments.
97.
Because the COVID vaccines are treatments – not vaccines – strict
scrutiny applies. The High Court has recognized a “general liberty interest in
refusing medical treatment.” Cruzan by Cruzan v. Director, Missouri Dept. of
Health (1990) 497 U.S. 261, 278. It has also recognized that the forcible injection
of medication into a nonconsenting person’s body represents a substantial
interference with that person’s liberty. Washington v. Harper (1990) 494 U.S. 210;
see also id at 223 (further acknowledging in dicta that, outside of the prison context,
the right to refuse treatment would be a “fundament right” subject to strict scrutiny.”
98.
Accordingly, the Mandate and Defendants’ efforts and actions to apply
and enforce it violates the Plaintiffs’ constitutional right to decisional privacy with
regard to medical treatment and the Ninth Amendment.
99.
As mandated medical treatments are a substantial burden, Defendants
must prove that the Mandate is narrowly tailored to meet a compelling interest.

11
Compare the old definition at
https://web.archive.org/web/20210826113846/https://www.cdc.gov/vaccines/vac-
gen/imz-basics.htm with the new definition at https://www.cdc.gov/vaccines/vac-
gen/imz-basics.htm.

Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 26 of 30 PageID 26

100. No such compelling interest exists because the COVID vaccines are not
effective against the now dominant Delta variant of COVID in that they do not
prevent the recipient from becoming infected, getting reinfected, or transmitting
COVID to others. Indeed, evidence shows that vaccinated individuals have more
COVID in their nasal passages than unvaccinated people do. The Delta variant is the
current variant and accounts for over 90% of the COVID infections in the United
States at this time.
101. Since the COVID vaccines are ineffective against the Delta variant,
there can be no compelling interest to mandate their use at this time.
102. But even if there were a compelling interest in mandating the COVID
vaccinations, the Mandate is not narrowly tailored to achieve such an interest.
103. The blanket Mandate ignores individual factors such as immunity based
on prior infection increasing or decreasing the risks that the Plaintiffs—indeed, all
Federal employees—pose to themselves or to others.
104. Defendants entirely disregard whether federal employees have already
obtained natural immunity despite the fact that natural immunity does actually
provide immunity whereas the COVID vaccines do not, whether the employees work
remotely, or whether the federal employees are fully vaccinated, but elect to not
surrender private, confidential, patient medical and epidemiological records to the
Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 27 of 30 PageID 27

federal government in violation of their constitutional rights and Parts 293.105 and
293.504 of Title 5 of the Code of Federal Regulations .
105. Treating all federal employees the same, regardless of many various
factors is not narrowly tailored.
106. An actual controversy involving justiciable questions related to this
controversy exists related to the rights and obligations of the respective parties.
107. Plaintiffs seek a judicial declaration that Defendants’ Mandate violates
the Fourteenth Amendment Substantive Due Process as applied to the federal
government through the Fifth Amendment and preliminary and permanent
injunctions prohibiting Defendants from imposing employment sanctions for non-
compliance with the Mandate.
PRAYER
WHEREFORE, Plaintiffs pray for relief from this Court as follows:
On the First Cause of Action:
1. Pursuant to 28 U.S.C. § 2201, a judicial declaration that:
a. Defendants’ Mandate is unlawful because it violates parts 293.105
and 293.504 of Title 5 of the Code of Federal Regulations; and
b. For preliminary and permanent injunctive relief prohibiting
Defendants from enforcing the unlawful Mandate.
On the Second Cause of Action:
Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 28 of 30 PageID 28

1. Pursuant to 28 U.S.C. § 2201, a judicial declaration that:
a. Defendants’ Mandate violates the Fourteenth Amendment Equal
Protect as applied to the federal government through the Fifth
Amendment; and
b. For preliminary and permanent injunctive relief prohibiting
Defendants from enforcing the unconstitutional Mandate.
On the Third Cause of Action:
1. Pursuant to 28 U.S.C. § 2201, a judicial declaration that:
a. Defendants’ Mandate violates the Fourteenth Amendment Substantive
Due Process as applied to the federal government through the Fifth
Amendment;
b. For preliminary and permanent injunctive relief prohibiting
Defendants from enforcing the unconstitutional Mandate.
On all Causes of Action:
1. For judgment in favor of Plaintiffs;
2. For costs of suit herein; and
3. For such other and further relief as the Court may deem just and proper.

JURY TRIAL DEMAND

Plaintiffs demand a trial by jury for all matters so triable.
Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 29 of 30 PageID 29

Filed this 12th day of November, 2021.

HADAWAY, PLLC

2425 Lincoln Ave.

Miami, FL 33133

Tel: (305) 389-0336

/s/ Brant C. Hadaway

Brant C. Hadaway, B.C.S.

Florida Bar No. 494690

Email: bhadaway@davillierlawgroup.com

and

George R. Wentz, Jr.

Pro Hac Vice Application to be filed

The Davillier Law Group, LLC

935 Gravier Street, Suite 1702

New Orleans, Louisiana 70112

Email: gwentz@davillierlawgroup.com

Tel: (504) 582-6998

and

John W. Howard

Pro Hac Vice Application to be filed

Michelle D. Volk

Pro Hac Vice Application to be filed

Andrew G. Nagurney

Pro Hac Vice Application to be filed

JW Howard/ Attorneys, Ltd.

701 B Street, Suite 1725

San Diego, CA 92101

Email: johnh@jwhowardattorneys.com

michelle@jwhowardattorneys.com

drew@jwhowardattorneys.com

Case 8:21-cv-02679-MSS-JSS Document 1 Filed 11/12/21 Page 30 of 30 PageID 30

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Complaint — Health Freedom Defense Fund v. Biden (M.D. Fla.)

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