A judge has dismissed a lawsuit from a federal employee that challenged the constitutionality of President Joe Biden’s executive order mandating vaccination against COVID-19 for federal workers.

Although Brian Brass of Jefferson County characterized the vaccination requirement as enslavement and “rape,” U.S. District Court Judge Charlotte Sweeney last month followed the lead of other federal courts in concluding Brass was obligated to follow the process set up for civil servants’ appeals. That process does not include filing suit in federal trial court.

The Civil Service Reform Act “divests this Court of jurisdiction over Mr. Brass’s challenge,” Sweeney wrote in her Oct. 20 order.

The decision is one of several unsuccessful attempts to date in Colorado at voiding COVID-19 vaccination mandates from different levels of government, with cases brought by university employees, municipal contractors and military personnel being dismissed outright or proceeding in limited form.

On Sept. 9, 2021, amid a rise in COVID-19 infections associated with the delta variant of the virus, Biden issued Executive Order 14043 deeming it “necessary to require COVID-19 vaccination for all federal employees, subject to such exceptions as required by law.”

Brass, an employee of the National Institute of Standards and Technology, filed suit against Biden and U.S. Secretary of Commerce Gina M. Raimondo on Oct. 15, four days before requesting a religious-based exemption to the vaccination requirement.

Brass rooted his legal claim in the Fourth Amendment’s guarantee that people have a right “to be secure in their persons, houses, papers, and effects,” a guarantee that applies to unreasonable searches and seizures. 

“There is no statute which expressly or impliedly authorizes the president to mandate involuntary vaccination of American Citizens,” Brass, who represented himself, wrote to the court. “The dictatorial Executive Order issued by president Biden was not authorized.”

As part of his arguments, Brass claimed the vaccines were “a rape, a violation of the body.” He advanced the unproven claim that the vaccines are “dangerous,” and asked rhetorically if the president is also allowed to mandate “other medical procedures” like sterilization or lobotomies.

Brass further asked a judge to force Biden to take a cognitive test, claiming he had evidence the president “is suffering from dementia.”

The government moved to dismiss the lawsuit in April, noting the Commerce Department, the parent agency for Brass’ employer, had not yet acted on Brass’ request for a religious exemption, and he would not be disciplined for non-compliance while the request is pending. The U.S. Department of Justice also disputed the characterization of Brass’ claim as an alleged Fourth Amendment violation.

“Plaintiff is not being forcibly vaccinated. This case does not concern whether an individual possesses a constitutional right to refuse vaccination generally, but whether vaccination is a permissible condition of employment,” wrote Assistant U.S. Attorney Elizabeth Hagerty.

In September, U.S. Magistrate Judge Michael E. Hegarty analyzed the case and recommended dismissal for multiple reasons. First, he agreed with the government that Brass had not faced any consequence so far while his exemption was pending. Second, Brass’ claim was actually a dispute over the conditions of his employment, not a Fourth Amendment controversy.

“Plaintiff retains a right to refuse vaccination, but if denied an exemption, he may be subject to the consequences of his agency employer,” Hegarty wrote on Sept. 22. “Again, the right to be secure in one’s person generally concerns the right to be free from warrantless searches, not bodily autonomy.”

Finally, the magistrate judge believed the federal trial court lacked jurisdiction to even hear Brass’ claims. In April, separate appellate courts based in Richmond and New Orleans issued decisions determining that challenges to Executive Order 14043 must follow the procedure in the Civil Service Reform Act. That process requires an appeal to a government panel, followed typically by an appeal to the U.S. Court of Appeals for the Federal Circuit.

Likewise, Hegarty believed Brass could not pursue his claim directly through the trial court in Colorado. Although Brass tried to frame his lawsuit as one affecting the constitutional rights of all American citizens, the “vaccine mandate only applies to him because he is a federal employee,” Hegarty noted.

Neither the government nor Brass objected to Hegarty’s reasoning or conclusions. Because Sweeney believed the law failed to grant the court jurisdiction to hear the lawsuit in the first place, she adopted Hegarty’s recommendation on that basis.

Brass told Colorado Politics he is still awaiting action on his request for a religious exemption, but said he is being “discriminated against” through a requirement to test for COVID-19.

“I have complied with that requirement under protest,” he said.

As of November 2021, the White House reported 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 those workers had received at least one dose of the vaccine.

The case is Brass v. Biden et al.

Editor’s note: This article has been updated with comments from Brass.