Amicus Curiae Brief — Keith M. Wilkins, Petitioner v. Steve Herron, et al.

No. 25-9

In the

Supreme Court of the United States

____________ ____________

KEITH M. WILKNS,

Petitioner,

v.

STEVE HERRON, ET AL.,

Respondents.

____________ ____________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

____________ ____________

BRIEF OF SENATOR KIM THATCHER

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

____________ ____________

LOWELL H. BECRAFT, JR.

Attorney at Law

403C Andrew Jackson Way

Huntsville, AL 35801

(256) 533-2535

becraft@hiwaay.net

Counsel for Amicus Curiae

–i–

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................... ii

INTEREST OF AMICUS CURIAE ....................................... 1

SUMMARY OF ARGUMENT .............................................. 1

ARGUMENT .................................................................... 3

I.

Allegations in Wilkins’ amended

complaint are sufficient to demonstrate that Respondents’ actions

exceeded the State’s police powers ................ 3

II.

Constitutional rights to bodily

integrity and to work have been

violated .......................................................... 5

III.

The police power of the States has

limits ............................................................... 8

IV.

Some evidence that face masks and

COVID-19 vaccine mandates are

beyond the police power ................................. 9

A. Face masks ................................................. 9

B. The COVID-19 “vaccines” ........................ 10

1. The vaccine manufacturers .................. 10

2. The uselessness and concealed

risks of the COVID-19 vaccines............ 13

– ii –

TABLE OF CONTENTS

(continued)

3. The COVID-19 vaccines are

misbranded .......................................... 21

V.

School district’s discharge of

Wilkins was wrongful and actionable ......... 26

CONCLUSION ............................................................... 26

– iii –

TABLE OF AUTHORITIES

CASES

PAGE(S)

Abdullahi v. Pfizer, Inc.,

562 F.3d 163 (2d Cir. 2009)............................ 11, 17

Adams v. Tanner,

244 U.S. 590 (1917) ................................................ 9

Albright v. Oliver,

510 U.S. 266 (1994) ................................................ 6

Allgeyer v. Louisiana,

165 U.S. 578 (1897) ................................................ 8

Ass’n for L.A. Deputy Sheriffs v. County of L.A.,

648 F.3d 986 (9th Cir. 2011) ................................ 26

Barry Aviation Incorporated v. Land O’Lakes

Municipal Airport Commission,

377 F.3d 682 (7th Cir. 2004) ................................ 26

Berman v. Parker,

348 U.S. 26 (1954) .............................................. 2, 8

Bruesewitz v. Wyeth LLC,

562 U.S. 223 (2011) .............................................. 21

Buck v. Bell,

274 U.S. 200 (1927) ................................................ 5

Camerlin v. Sec’y of the HHS,

2003 U.S. Claims LEXIS 362............................... 21

– iv –

TABLE OF AUTHORITIES

(continued)

Canterbury v. Spence,

464 F.2d 772 (D.C. Cir. 1972) ............................ 7–8

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985) .............................................. 26

Cruzan v. Director, Missouri Department of

Health, 497 U.S. 261 (1990)................................... 6

Dent v. West Virginia,

129 U.S. 114 (1889) ............................................... 8

Doe v. Moore,

410 F.3d 1337 (11th Cir. 2005) ............................. 7

Doe v. Taylor Indep. Sch. Dist.,

15 F.3d 443 (5th Cir. 1994) .................................... 7

Fortner v. Thomas,

983 F.2d 1024 (11th Cir. 1993) .............................. 7

Frances-Colon v. Ramirez,

107 F.3d 62 (1st Cir. 1997) .................................... 6

Freedman v. Spicer Mfg. Corp.,

97 N.J.L. 325, 116 A. 427 (1922) ......................... 21

Gibbons v. Ogden,

22 U.S. 1 (1824) ...................................................... 8

Guertin v. Michigan,

912 F.3d 907 (6th Cir. 2019) .................................. 7

–v–

TABLE OF AUTHORITIES

(continued)

Hovater v. Robinson,

1 F.3d 1063 (10th Cir. 1993) .................................. 7

Jacobson v. Massachusetts,

197 U.S. 11 (1905) .............................................. 5, 6

Jay Burns Baking Co. v. Bryan,

264 U.S. 504 (1924) ................................................ 9

Jurasek v. Utah State Hosp.,

158 F.3d 506 (10th Cir. 1998) ................................ 7

Kordel v. United States,

335 U.S. 345 (1948) ............................................. 22

Korematsu v. United States,

323 U.S. 214 (1944) ................................................ 5

Louis K. Liggett Co. v. Baldridge,

278 U.S. 105 (1928) ................................................ 9

Missouri v. McNeely,

569 U.S. 141 (2013) ............................................... 6

Meyer v. Nebraska,

262 U.S. 390 (1923) ................................................ 9

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ................................................ 9

Phillips v. County of Allegheny,

515 F.3d 224 (3d Cir. 2008).................................... 6

– vi –

TABLE OF AUTHORITIES

(continued)

Plessy v. Ferguson,

163 U.S. 537 (1896) ................................................ 5

Plumeau v. Sch. Dist. # 40,

130 F.3d 432 (9th Cir. 1997) ................................. 7

Robinson v. Attorney General,

957 F.3d 1171 (11th Cir. 2020) .............................. 5

Rogers v. City of Little Rock,

152 F.3d 790 (8th Cir. 1998) .................................. 7

Shillingford v. Holmes,

634 F.2d 263 (5th Cir.1981) ................................... 6

Showers v. Pfizer, Inc. (In re Pfizer Inc. Sec.

Litig.), 819 F.3d 642 (2d Cir. 2016) ..................... 17

Skinner v. Oklahoma,

316 U.S. 535 (1942) ................................................ 6

Smith v. Texas,

233 U.S. 630 (1914) ................................................ 9

State of Washington ex rel Seattle Title Trust

Co. v. Roberge, 278 U.S. 116 (1928)....................... 9

Truax v. Raich,

239 U.S. 33 (1915) .................................................. 8

Tyson & Bro.—United Theatre Ticket Offices v.

Banton, 273 U.S. 418 (1927) .................................. 9

– vii –

TABLE OF AUTHORITIES

(continued)

Union Fishermen’s Co. v. Shoemaker,

98 Ore. 659, 193 P. 476 (1920) ............................... 8

United States v. Dotterweich,

320 U.S. 277 (1943) .............................................. 22

United States v. Marschall,

82 F.4th 774 (9th Cir. 2023) ................................ 22

Washington v. Glucksberg,

521 U.S. 702 (1997) ............................................... 6

Washington v. Harper,

494 U.S. 210 (1990) ................................................ 6

Weaver v. Palmer Bros. Co.,

270 U.S. 402 (1926) ............................................... 9

Winston v. Lee,

470 U.S. 753 (1985) ............................................... 6

STATUTES

18 U.S.C. § 1091 ........................................................ 25

21 U.S.C. § 331 .......................................................... 22

21 U.S.C. § 352(j) ................................................. 13, 22

21 U.S.C. § 360bbb-3(e) ............................................. 21

42 U.S.C. § 1983 ...................................................... 2, 6

– viii –

TABLE OF AUTHORITIES

(continued)

RULES AND OTHER AUTHORITIES

F. R. Civ. P. 15(a) ...................................................... 27

85 Fed. Reg. 7316 ...................................................... 13

85 Fed. Reg. 79190 .................................................... 14

86 Fed. Reg. 5200 ...................................................... 14

86 Fed. Reg. 5211 ...................................................... 15

86 Fed. Reg. 28608 .................................................... 16

–1–

INTEREST OF AMICUS CURIAE1

Kim Thatcher is a Senator in the Oregon

legislature, representing Oregon’s District 11. She

has served on the Oregon Senate Judiciary

committee since 2015 and since 2017 has been its

vice-chair. Throughout her legislative career, she has

focused on preserving medical transparency,

personal autonomy, and the rights of Oregonians to

make their own healthcare decisions. She believes

that medical decisions should be made freely and

with full, informed understanding of risks, benefits,

and alternatives—without coercion or undue

pressure.

Her policy work has both supported and

authored legislation to ensure consent is respected in

all medical contexts, particularly those involving

public institutions and experimental interventions.

The case of Keith Wilkins reflects the concerns she

has long raised: when institutions such as public

employers overstep, individual rights are placed in

jeopardy. For that reason, she submits this brief in

support of Petitioner Wilkins.

SUMMARY OF ARGUMENT

Petitioner Wilkins was employed by an Oregon

school district, Bend LaPine Administrative School

1 It is hereby certified that counsel of record for all parties

received notice of the intention to file this brief at least 10 days

prior to filing, pursuant to Supreme Court Rule 37.2. Under

Rule 37.6, Amicus certifies that no person or entity other than

Amicus or her counsel has authored or prepared this brief in

whole or in part or made a monetary contribution intended to

fund the preparation or submission of this brief.

–2–

District 1, from August, 2007 through February,

2021. In late 2020, the district imposed requirements

that teachers wear face masks while at work, and

also be vaccinated against COVID-19. Wilkins

objected to these requirements and refused to wear

masks or get vaccinated. Because of these refusals,

the district and the named Respondents informed

Wilkins not to report for work. As a consequence, the

district ceased payment of Wilkins’ salary.

Wilkins was entitled to a due process hearing

regarding his discharge, but this was refused.

Further, Wilkins’ constitutionally protected rights to

work and to bodily integrity were violated by the

requirements imposed by the district and Respondents. As a result, Wilkins sued Respondents for

violating 42 U.S.C. § 1983. The district court’s

dismissal of his complaint was erroneous, as was the

affirmance by the Ninth Circuit.

The constitutional authority of state and local

government agencies to impose mask and vaccine

mandates is the “police power,” which this Court has

described as the authority of local governments to

impose measures for “[p]ublic safety, public health,

morality, peace and quiet, law and order.” Berman v.

Parker, 348 U.S. 26, 32 (1954). But the police power

cannot be exercised or used to inflict harm on

citizens or to accomplish something which is utterly

useless. Here, Wilkins alleges in his amended

complaint that face masks were inadequate in

stopping the spread of COVID-19. He further alleges

that the “vaccines” then commonly being used were

not only useless, but were in fact incredibly harmful

to those receiving them. In essence, Wilkins offers to

prove that the actions of Oregon officials (including

Respondents) were harming citizens and thus these

–3–

measures were violative of Wilkins’ federally

protected constitutional rights, including the right to

work and to bodily integrity.

There is much evidence, both available when

Wilkins was confronted with the mandates, and now

increasingly revealed to the public, that face masks

were ineffective and harmful, and that the COVID19 “vaccines” authorized for emergency use were

ineffective and harmful. Moreover, the history of the

pharmaceutical giants who manufactured the

vaccines demonstrates clearly that there is good

reason to believe that they frequently misbrand and

misrepresent the efficacy and safety of drugs they

manufacture.

As a consequence, Wilkins’ complaint is founded

in factual allegations which are not only plausible,

but eminently provable against the officials

subjecting him to these mandates. His complaint

should not have been dismissed, and this Court

should reverse the dismissals of the courts below.

ARGUMENT

I.

Allegations in Wilkins’ amended complaint

are sufficient to demonstrate that Respondents’ actions exceeded the State’s police

powers

Wilkins’ amended complaint asserted eight

separate claims for relief; all claims were related to

his opposition to Respondents’ requirements that he

wear face masks at work and be subjected to the

school district’s vaccine mandate.

–4–

Paragraphs 35 through 62 of Wilkins’ complaint,

spanning some seven pages, alleged that face masks

fail to prevent the transmission of any diseases,

including COVID-19. Paragraph 40 alleged that a

letter from a FDA official stated that “[n]o

descriptive printed matter, including advertising or

promotional materials, relating to the use of the

authorized surgical mask may represent or suggest

that such product is safe or effective for the

prevention or treatment of COVID-19.” Paragraph 41

of the complaint even provided a photograph of a

typical box that manufacturers used to distribute

masks, which box disclaimed in print that masks

“will not provide any protection against COVID-19

(coronovirus) or other viruses or contaminants.”

Paragraphs 63 through 136 thereof, spanning

some 31 pages, contained specific allegations

regarding the ineffectiveness of the COVID-19

injections (“vaccines”), such as that alleged in ¶ 81:

“These products do not prevent infection by COVID19 and do not prevent the spread of COVID-19. The

CDC has acknowledged that these products do not

prevent infection or transmission of COVID-19. The

CDC has also acknowledged that the vaccinated and

the unvaccinated are equally likely to spread

COVID-19.”

These factual allegations concerning the utter

ineffectiveness of both masks and the vaccines as

some form of remedy to COVID-19 were capable of

being proved at any hearing or trial to demonstrate

that these measures were beyond the police power of

State governments, including Oregon’s.

–5–

II. Constitutional rights to bodily

integrity and to work have been

violated.

When smallpox posed epidemic problems at the

start of the 20th century, this Court in Jacobson v.

Massachusetts, 197 U.S. 11, 31 (1905), determined

under the facts of that case that Massachusetts could

mandate vaccinations.2 But this decision had a

caveat:

[I]f a statute purporting to have been

enacted to protect the public health, the

public morals, or the public safety, has no

real or substantial relation to those objects,

or is, beyond all question, a plain, palpable

invasion of rights secured by the

fundamental law, it is the duty of courts to

so adjudge, and thereby give effect to the

Constitution.

See also Robinson v. Attorney General, 957 F.3d

1171, 1178 (11th Cir. 2020) (“just as constitutional

rights have limits, so too does a state’s power to issue

executive orders limiting such rights in times of

emergency.”) It must be noted that Jacobson is of the

genre of Plessy v. Ferguson, 163 U.S. 537 (1896)

(upholding state segregation laws); Buck v. Bell, 274

U.S. 200 (1927) (upholding involuntary sterilization);

and Korematsu v. United States, 323 U.S. 214 (1944)

(upholding removal of Japanese Americans from

their homes during World War II).

But there is a history of human experimentation in our

country. See, e.g., https://en.wikipedia.org/wiki/Unethical_

human_experimentation_in_the_United_States

2

–6–

Since Jacobson, however, this Court has

repeatedly recognized the constitutional right to

“bodily integrity,” which constitutes a limit to the

authority to compel citizens to be vaccinated. See

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)

(invasive medical procedure of sterilization

performed without the consent of the patient,

“forever deprived [the individual] of a basic liberty.”);

Winston v. Lee, 470 U.S. 753, 755 (1985); Washington

v. Harper, 494 U.S. 210, 221-222 (1990) (“respondent

possesses a significant liberty interest in avoiding

the unwanted administration of antipsychotic

drugs”); Cruzan v. Director, Missouri Department of

Health, 497 U.S. 261, 278 (1990) (“competent person

has a constitutionally protected liberty interest in

refusing unwanted medical treatment”); Albright v.

Oliver, 510 U.S. 266, 272 (1994) (“[t]he protections of

substantive due process have for the most part been

accorded to matters relating to marriage, family,

procreation, and the right to bodily integrity.”);

Washington v. Glucksberg, 521 U.S. 702, 720 (1997)

(“the ‘liberty’ protected by the Due Process Clause [of

the Fourteenth Amendment] includes the right[] . . .

to bodily integrity”); Missouri v. McNeely, 569 U.S.

141, 148 (2013) (“any compelled intrusion into the

human body implicates significant, constitutionally

protected privacy interests.”); Frances-Colon v.

Ramirez, 107 F.3d 62, 63 (1st Cir. 1997) (substantive

due process interest in “bodily integrity” or

“adequate medical care” can support a personal

injury claim under § 1983 “against the provider of a

governmental service.”); Phillips v. County of

Allegheny, 515 F.3d 224, 235 (3d Cir. 2008)

(“[I]ndividuals have a constitutional liberty interest

in personal bodily integrity”); Shillingford v. Holmes,

634 F.2d 263, 265 (5th Cir.1981) (“the right to be free

–7–

of state-occasioned damage to a person’s bodily

integrity is protected by the fourteenth amendment

guarantee of due process.”); Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443 (5th Cir. 1994) (right to be free of

state-occasioned damage to a person’s bodily

integrity is protected by U.S. Const. amend. XIV’s

guarantee of due process); Guertin v. Michigan, 912

F.3d 907 (6th Cir. 2019) (“invasion of one’s body ‘is

an indignity, an assault, and a trespass’ prohibited

at common law.”); Rogers v. City of Little Rock, 152

F.3d 790, 797 (8th Cir. 1998) (rape by police officer of

woman stopped for traffic violation violated her Due

Process right to intimate bodily integrity); Plumeau

v. Sch. Dist. # 40, 130 F.3d 432, 438 (9th Cir. 1997)

(janitor whose touching of elementary school children

constituted criminal sexual abuse also violated the

children’s Due Process right to bodily integrity);

Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir.

1993) (“inmate has a constitutional right to be secure

in her bodily integrity”); Jurasek v. Utah State Hosp.,

158 F.3d 506, 510 (10th Cir. 1998) (“an individual

has a liberty interest in ‘avoiding the unwanted

administration of antipsychotic drugs’”); Fortner v.

Thomas, 983 F.2d 1024, 1029-30 (11th Cir. 1993)

(inmates “retain certain fundamental rights of

privacy[,]” including a “constitutional right to bodily

privacy.”); Doe v. Moore, 410 F.3d 1337, 1343 (11th

Cir. 2005) (“The Supreme Court has recognized that

fundamental rights include those guaranteed by the

Bill of Rights as well as certain ‘liberty’ and privacy

interests implicit in the due process clause and the

penumbra of constitutional rights. * * * These special

‘liberty’ interests include ‘the rights to marry, to

have children, to direct the education and upbringing

of one’s children, to marital privacy, to use contraception, to bodily integrity...’”); and Canterbury v.

–8–

Spence, 464 F.2d 772, 780 (D.C. Cir. 1972) (it is

“fundamental in American jurisprudence, that the

individual may control what shall be done with his

own body.”).

Moreover, this Court has recognized the

constitutional right to work. See Dent v. West

Virginia, 129 U.S. 114, 121 (1889) (“It is undoubtedly

the right of every citizen of the United States to

follow any lawful calling, business, or profession he

may choose, subject only to such restrictions as are

imposed upon all persons of like age, sex and

condition.”). See also Allgeyer v. Louisiana, 165 U.S.

578, 589-90 (1897), Truax v. Raich, 239 U.S. 33, 41

(1915).

These constitutional rights can be protected via a

lawsuit authorized by 42 U.S.C. §1983, which is

exactly what Wilkins’ suit sought.

III.

The police power of the States has

limits.

The “police power” refers to “the whole sum of

inherent sovereign power which the state possesses,

and, within constitutional limitations, [are]

exercise[d] for the promotion of the order, safety,

health, morals, and general welfare of the public.”

Union Fishermen’s Co. v. Shoemaker, 98 Ore. 659,

674, 193 P. 476 (1920). This court has decided that

imposing quarantines are within this power. See

Gibbons v. Ogden, 22 U.S. 1, 203 (1824). “Public

safety, public health, morality, peace and quiet, law

and order — these are some of the more conspicuous

examples of the traditional application of the police

power to municipal affairs.” Berman v. Parker, 348

U.S. 26, 32 (1954).

–9–

However, there are many examples of State laws

that are outside the scope of this police power. In

Smith v. Texas, 233 U.S. 630, 638 (1914), this Court

found a State law void that required freight

conductors to have experience as brakemen. Also

void was a State law prohibiting employment

agencies in Adams v. Tanner, 244 U.S. 590 (1917). A

law forbidding teaching foreign languages in school

was held void in Meyer v. Nebraska, 262 U.S. 390

(1923). Bread weight restrictions were held void as

beyond the police power in Jay Burns Baking Co. v.

Bryan, 264 U.S. 504 (1924). A law preventing use of

“shoddy” in mattresses was held void in Weaver v.

Palmer Bros. Co., 270 U.S. 402 (1926), as was a

ticket broker price restriction in Tyson & Bro.-United

Theatre Ticket Offices v. Banton, 273 U.S. 418 (1927).

This Court held that a state law which restricted

ownership of pharmacies to licensed pharmacists

was beyond the police power in Louis K. Liggett Co.

v. Baldridge, 278 U.S. 105 (1928). See also State of

Washington ex rel Seattle Title Trust Co. v. Roberge,

278 U.S. 116 (1928) (finding unlawful a law

requiring consent of neighbors just to build a home);

and New State Ice Co. v. Liebmann, 285 U.S. 262

(1932) (holding unlawful a law restricting a new ice

business).

IV. Some evidence that face masks and

vaccine mandates are beyond the police

power.

A. Face Masks

When COVID-19 “mandates” were being adopted

by many States at the start of the outbreak, the case

of Maggie Williams was the subject of many national

media reports. Maggie participated in a track meet

– 10 –

while required to wear a face mask, and she

collapsed just as she crossed the finish line at the

end of her race. Afterwards, she commented that

“her lack of oxygen was the result of the mask she’s

been required to wear while running in competitions

under OHA guidelines for outdoor sports.”3 The

school Maggie attended was in the Bend-LaPine

district. Paragraph 62 in Wilkins’ amended

complaint recounted this fact.

Paragraph 47 of that Wilkins’ complaint noted

that there were “[m]ore than 150 studies [that] prove

the ineffectiveness of masks.”4 A fair reading of the

allegations in the amended complaint regarding the

utter inadequacies of face masks to stop the

transmission of viruses reveals that it most likely

will be impossible for any state official to ever

demonstrate that face masks are helpful in stopping

viruses from spreading.

If face masks are inadequate in this regard, then

the mask mandate imposed by Oregon officials was

beyond the police power of the State, and therefore

unconstitutional.

B. The COVID-19 “vaccines”

1. The vaccine manufacturers

In 1849, two German immigrants, Charles Pfizer

and his cousin Charles F. Erhart formed a company

that eventually became Pfizer, Inc., which currently

is an American multinational pharmaceutical and

3

See https://dailycitizen.focusonthefamily.com/oregon-revisesmask-rule-after-female-athlete-running-with-a-mask-collapses-atfinish-line/ (all internet cites herein were last visited on July 30,

3025).

4 See https://brownstone.org/tag/masks/

– 11 –

biotechnology corporation with headquarters in New

York City. Its annual revenues exceed that of small

countries like New Zealand.

When developing vaccines, Pfizer has engaged in

harmful conduct which has resulted in lawsuits.

During 1996 in Nigeria, its vaccine experiments

resulted in the death and severe injuries to a number

of Nigerian children. As a result, Pfizer was sued and

determined to be liable for those injuries in

Abdullahi v. Pfizer, Inc., 562 F.3d 163, 169 (2d Cir.

2009). This case was later settled.5

In 2002, Pharmacia & Upjohn Company, a Pfizer

subsidiary, developed a drug named Bextra, and

started vigorously promoting its sale to its sale force.

The start of this sales program was described as

follows in the sentencing memorandum of the AUSA

who brought criminal charges against Pfizer:

Bextra was officially launched at a national

meeting for sales representatives in Atlanta,

Georgia, from April 9-12, 2002. During this

meeting, the sales force was given a vivid

message of how to promote Bextra for the

“power” position. They were inundated with

displays of music, light shows, acrobats and

dancers. The marketing managers led the

entire audience in thrusting their fists into

the air (the marketing symbol of Bextra) and

pounding them against their upraised hands

in unison to symbolize the power of Bextra

and to “Power Up” the sales force.

Ultimately, simulated large steel doors crash

down on the stage, and the Bextra fist

symbol crashed through the doors. The

5 See https://www.law.com/almID/1202482854504/

– 12 –

events from the launch demonstrates the

sales frenzy that accompanied Bextra, as the

company strove to make the drug reach

“blockbuster” (billion dollar a year sales)

status.6

Condensing this sordid story, Pharmacia sales

representatives promoted Bextra using false and

misleading claims, eventually leading to civil actions

being filed by the United States as well as federal

criminal charges in several districts. These civil and

criminal charges were ultimately settled by Pfizer,

which paid $2.3 billion, which was the largest health

care fraud settlement in the history of the

Department of Justice.

It is reported that since 2000, Pfizer has paid

$11,261,560,400 in penalties.7 Pfizer has been

criminally prosecuted a number of times for the

crime of misbranding in violation of 21 U.S.C. §

352(j).

Johnson & Johnson/Janssen Pharmaceuticals,

Inc., have had similar problems. In April, 2010, the

Department of Justice announced two “Johnson &

Johnson Subsidiaries to Pay Over $81 Million to

Resolve Allegations of Off-Label Promotion of

Topamax Epilepsy Drug Approved by FDA Promoted

for Psychiatric Uses.”8 In 2012, 37 State Attorneys

General reached a similar settlement regarding the

promotion and sale of the drug, Risperdal. Janssen

Pharmaceuticals agreed to pay $181 million to settle

See https://www.cbsnews.com/news/doj-blames-pfizer-manage

ment-for-bextra-mess-the-goal-was-to-avoid-getting-caught/

7 See https://violationtracker.goodjobsfirst.org/parent/pfizer

8 See https://www.justice.gov/opa/pr/two-johnson-johnson-subsid

iaries-pay-over-81-million-resolve-allegations-label-promotion

6

– 13 –

claims brought against it by Oregon Attorney

General Ellen F. Rosenblum and 36 other Attorneys

General alleging that the drug company used unfair

and deceptive practices in marketing Risperdal and

three related anti-psychotic drugs.9 In November,

2013, the Department of Justice announced that

“Johnson & Johnson [agreed] to Pay More Than $2.2

Billion to Resolve Criminal and Civil Investigations.”

10 More recently to address its role in assisting the

Opioid crisis that has recently plagued a number of

States in this Union, the New York Attorney General

announced a $230,000,000 settlement with the

company.11 The company has paid a total of

$25,117,910,922 in penalties since 2000.12

2. The uselessness and concealed risks of the

COVID-19 vaccines

“On February 4, 2020, the Secretary [of Health

and Human Services] determined pursuant to his

authority under section 564 of the FD&C Act that

there is a public health emergency that has a

significant potential to affect national security or the

health and security of United States citizens living

abroad and that involves a novel (new) coronavirus

(nCoV) first detected in Wuhan City, Hubei Province,

China in 2019 (2019-nCoV).” 85 Fed. Reg. 7316,

February 7, 2020. Thereafter, various vaccine

manufacturers such as Pfizer, Inc., Johnson and

See https://www.doj.state.or.us/media-home/news-media-relea

ses/oregon-attorney-general-and-36-others-reach-181-million-risp

perdal-settlement/

10 See https://www.justice.gov/opa/pr/johnson-johnson-pay-more22-billion-resolve-criminal-and-civil-investigations

11 See https://ag.ny.gov/press-release/2021/attorney-general-jam

es-reaches-230-million-settlement-treatment-and-prevention

12 See https://violationtracker.goodjobsfirst.org/parent/johnsonand-johnson

9

– 14 –

Johnson, and Moderna, Inc., commenced at “warp

speed” research on vaccines to treat COVID-19, and

these efforts were reaching fruition by early

December, 2020.

On December 3, 2020, the HHS Secretary

granted immunity for “covered countermeasures” to

vaccine manufacturers (“covered persons”) that he

might thereafter authorize to produce and distribute

a vaccine. 85 Fed. Reg. 79190, Dec. 9, 2020. On

December 11, 2020, the Pfizer-BioNTech COVID-19

Vaccine was granted Emergency Use Authorization

(“EUA”). 86 Fed. Reg. 5200, Jan. 19, 2021.

Once the EUA injections were distributed,

however, it became obvious that these COVID-19

vaccines were useless or ineffective from a public

health perspective, i.e., they did not prevent COVID19 transmission or infection. Indeed, the vaccinated

can catch, spread, and have serious illness from

COVID-19 even when fully vaccinated, as the CDC

revealed in an August 6, 2021 Morbidity and

Mortality Weekly Report (MMWR). In its report, the

CDC identified a cluster of COVID-19 cases in

Barnstable County, Mass., in which 74 percent of all

cases occurred in “fully vaccinated” persons, i.e.,

those who had received a single dose of Janssen, or

two doses of Pfizer or Moderna inoculations. Further,

“[a]mong five COVID-19 patients who were

hospitalized, four were fully vaccinated.” And this in

a population where “vaccination coverage” was 69

percent.13

As another example of ineffectiveness, a 2021

study indicated that COVID-19 vaccines only provide

13 See https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.ht

m?s _cid=mm7031e2_w

– 15 –

12 percent effectiveness in limiting the already

miniscule risk of COVID to children ages 5 to 11

after a 7-week observation period.14

Moreover, the EUA for these vaccines imposed

various requirements on the manufacturers which

included providing critical information about adverse

reactions to the vaccine to VAERS. For example,

Pfizer was required to report as follows:

F. Pfizer Inc. will report to Vaccine Adverse

Event Reporting System (VAERS):

• Vaccine administration errors whether or

not associated with an adverse event;

• Serious adverse events (irrespective of

attribution to vaccination);

• Cases of Multisystem Inflammatory Syndrome

in children and adults; and

• Cases of COVID-19 that result in hospitalization or death, that are reported to Pfizer Inc.15

A few days after the grant of EUA for the Pfizer

vaccine, ModernaTX, Inc., was granted an EUA for

its vaccine, Moderna COVID-19 Vaccine, on

December 18, 2020. 86 Fed. Reg. 5211, Jan. 19, 2021.

The Secretary made the essential findings that “it is

reasonable to believe” that this vaccine “may be

effective” and that the “potential benefits of Moderna

COVID-19 Vaccine outweigh the known and

potential risks.” 86 Fed. Reg. at 5212. Further, a

14 Vajeera Dorabawila et al., “Effectiveness of the BNT162b2

vaccine among children 5-11 and 12-17 years in New York after

the Emergence of the Omicron Variant,” MEDRXIV (Feb. 28,

2022).https://www.medrxiv.org/content/10.1101/2022.02.25.222714

54 v1.full.pdf

15 86 Fed. Reg. at 5207

– 16 –

duty was also imposed on ModernaTX, Inc., to make

reports to VAERS similar to that for Pfizer. 86 Fed.

Reg. at 5216.

On February 27, 2021, Janssen Biotech, Inc.,

was granted an EUA for its vaccine, Janssen COVID19 Vaccine, 86 Fed. Reg. 28608, May 27, 2021. Again,

the FDA made the essential findings that this

vaccine “may be effective” and that the “potential

benefits of Janssen COVID-19 Vaccine ... outweigh

its known and potential risks.” 86 Fed. Reg. at

28620. Finally, a duty was also imposed on Janssen

Biotech, Inc., to make reports to VAERS similar to

that for Pfizer, 86 Fed. Reg. at 28624.

Before these vaccines had even been authorized

for emergency use, the FDA had already engaged in

efforts to determine the effectiveness of any COVID19 vaccine. On October 22, 2020, the FDA’s Vaccines

and Related Biological Products Advisory Committee

conducted a meeting for various attendees to discuss

sundry matters related to the COVID-19 pandemic.

During this meeting, a slide presentation was given

wherein one slide disclosed the following possible

“risks” of the vaccines:16

Guillain-Barré syndrome

Acute disseminated encephalomyelitis

Transverse myelitis

Encephalitis/myelitis/encephalomyelitis/meningoencephalitis/

meningitis/encepholapathy

• Convulsions/seizures

• Stroke

• Narcolepsy and cataplexy

•

•

•

•

16 See page 17 of the document at https://www.fda.gov/media/

143557/download

– 17 –

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

Anaphylaxis

Acute myocardial infarction

Myocarditis/pericarditis

Autoimmune disease

Deaths

Pregnancy and birth outcomes

Other acute demyelinating diseases

Non-anaphylactic allergic reactions

Thrombocytopenia

Disseminated intravascular

coagulation

Venous thromboembolism

Arthritis and arthralgia/joint pain

Kawasaki disease

Multisystem Inflammatory Syndrome

in Children

Vaccine enhanced disease

However, a few months later when Pfizer,

Moderna and Jansen published “Fact Sheets” where

they were obligated to provide vaccine recipients

specific information about the “benefits and risks” of

each vaccine, these risks were not mentioned, but

instead carefully concealed. Fact sheets published by

Pfizer17 dated May 10, 2021,18 by Janssen Biotech

dated April 23, 2021,19 and by Moderna dated March

26, 202120 all provide the mandated statements of

17

See Abdullahi v. Pfizer, Inc., supra, and Showers v. Pfizer,

Inc. (In re Pfizer Inc. Sec. Litig.), 819 F.3d 642 (2d Cir. 2016),

which discuss Pfizer’s past misrepresentations in fact sheets.

18

See https://www.childrensmedgroup.com/cmg-media/uploads/

2021/05/Covid-Fact-Sheet-for-patient-Pfizer-COVID-19-Vac-5-21.pdf

19 See https://omh.ny.gov/omhweb/o-lov-covid19-vaccine/janssencv-19-fact-sheet.pdf

20 See https://www.pullmanregional.org/hubfs/Moderna%20Fact

%20Sheet-Mar2021.pdf

– 18 –

these “benefits and risks,” which included statements

regarding the risk of severe allergic reaction:

WHAT ARE THE RISKS OF THE [Moderna,

Pfizer, or Janssen] COVID-19 VACCINE?

There is a remote chance that the ... COVID19 Vaccine could cause a severe allergic

reaction. A severe allergic reaction would

usually occur within a few minutes to one

hour after getting a dose of the ... COVID-19

Vaccine. For this reason, your vaccination

provider may ask you to stay at the place

where you received your vaccine for

monitoring after vaccination. Signs of a

severe allergic reaction can include:

• Difficulty breathing

• Swelling of your face and throat

• A fast heartbeat

• A bad rash all over your body

• Dizziness and weakness

Pfizer’s fact sheet reported further side effects as

follows:

Side effects that have been reported with the

Pfizer-BioNTech COVID-19 Vaccine include:

• severe allergic reactions

• non-severe allergic reactions such as rash,

itching, hives, or swelling of the face

• injection site pain

• tiredness

• headache

• muscle pain

• chills

• joint pain

– 19 –

• fever

• injection site swelling

• injection site redness

• nausea

• feeling unwell

• swollen lymph nodes (lymphadenopathy)

• diarrhea

• vomiting

• arm pain

These may not be all the possible side effects

of the Pfizer-BioNTech COVID-19 Vaccine.

Serious and unexpected side effects may

occur. Pfizer-BioNTech COVID-19 Vaccine is

still being studied in clinical trials.

Janssen’s fact sheet reported further side effects

as follows:

Side effects that have been reported with the

Janssen COVID-19 Vaccine include:

• Injection site reactions: pain, redness of the

skin and swelling.

• General side effects: headache, feeling very

tired, muscle aches, nausea, and fever. ...

Blood clots involving blood vessels in the

brain, abdomen, and legs along with low

levels of platelets (blood cells that help your

body stop bleeding), have occurred in some

people who have received the Janssen

COVID-19 Vaccine. In people who developed

these blood clots and low levels of platelets,

symptoms began approximately one to twoweeks following vaccination. Most people

who developed these blood clots and low

levels of platelets were females ages 18

– 20 –

through 49 years. The chance of having this

occur is remote. You should seek medical

attention right away if you have any of the

following symptoms after receiving Janssen

COVID-19 Vaccine:

• Shortness of breath,

• Chest pain,

• Leg swelling,

• Persistent abdominal pain,

• Severe or persistent headaches or blurred

vision,

• Easy bruising or tiny blood spots under the

skin beyond the site of the injection.

These may not be all the possible side effects

of the Janssen COVID-19 Vaccine. Serious

and unexpected effects may occur. The

Janssen COVID-19 Vaccine is still being

studied in clinical trials.

Moderna’s fact sheet reported further side effects

as follows:

Side effects that have been reported in a

clinical trial with the Moderna COVID-19

Vaccine include:

• Injection site reactions: pain, tenderness

and swelling of the lymph nodes in the

same arm of the injection, swelling

(hardness), and redness

• General side effects: fatigue, headache,

muscle pain, joint pain, chills, nausea and

vomiting, and fever

Side effects that have been reported during

post-authorization use of the Moderna

COVID-19 Vaccine include:

– 21 –

• Severe allergic reactions

These may not be all the possible side effects

of the Moderna COVID-19 Vaccine. Serious

and unexpected side effects may occur. The

Moderna COVID-19 Vaccine is still being

studied in clinical trials.

It must be noted that a number of serious health

problems acknowledged by the FDA, or even death

were not mentioned in these fact sheets, which

federal law mandates be made available to vaccine

recipients. See 21 U.S.C. § 360bbb-3(e).

3. The COVID-19 vaccines are misbranded

Vaccines have proven to be dangerous and

harmful to health. An early case of a party awarded

workmen’s compensation as a result of death caused

by the vaccines offered during the 1918 Spanish flu

epidemic was Freedman v. Spicer Mfg. Corp., 97

N.J.L. 325, 116 A. 427 (1922). Since then, workmen’s

compensation laws have been enacted nationwide

and injuries caused by vaccines are typically

compensated. Congress has also created a vaccine

court to handle such cases. See Camerlin v. Sec’y of

the HHS, 2003 U.S. Claims LEXIS 362. After all,

vaccines are unavoidably unsafe. See Bruesewitz v.

Wyeth LLC, 562 U.S. 223, 234 (2011).

Without doubt, Pfizer and Johnson & Johnson

are large pharmaceutical companies engaged in

interstate commerce. The federal laws regulating the

manufacture, sale and distribution of vaccines are

predicated on Congress’s power to regulate interstate

commerce. See 21 U.S.C. § 331. Further, the crime of

“misbranding” is the subject of 21 U.S.C. § 352(j),

and it provides that a vaccine is misbranded “[i]f it is

– 22 –

dangerous to health when used in the dosage or

manner, or with the frequency or duration

prescribed, recommended, or suggested in the

labeling thereof.” Thus, if there has been

concealment of the harms of these vaccines, such

constitutes “misbranding.” United States v.

Dotterweich, 320 U.S. 277 (1943), Kordel v. United

States, 335 U.S. 345 (1948), and United States v.

Marschall, 82 F.4th 774 (9th Cir. 2023),

In a study published on September 22, 2022,

titled “Serious adverse events of special interest

following

mRNA

COVID-19

vaccination

in

randomized trials in adults,” the authors concluded:

Pfizer and Moderna mRNA COVID-19

vaccines were associated with an excess risk

of serious adverse events of special interest

of 10.1 and 15.1 per 10,000 vaccinated over

placebo baselines of 17.6 and 42.2 (95% CI

−0.4 to 20.6 and −3.6 to 33.8), respectively.

Combined, the mRNA vaccines were

associated with an excess risk of serious

adverse events of special interest of 12.5 per

10,000 vaccinated (95% CI 2.1 to 22.9); risk

ratio 1.43 (95 % CI 1.07 to 1.92). The Pfizer

trial exhibited a 36% higher risk of serious

adverse events in the vaccine group; risk

difference 18.0 per 10,000 vaccinated (95%

CI 1.2 to 34.9); risk ratio 1.36 (95% CI 1.02 to

1.83). The Moderna trial exhibited a 6%

higher risk of serious adverse events in the

vaccine group: risk difference 7.1 per 10,000

(95% CI –23.2 to 37.4); risk ratio 1.06 (95%

CI 0.84 to 1.33). Combined, there was a 16%

higher risk of serious adverse events in

mRNA vaccine recipients: risk difference

– 23 –

13.2 (9 % CI −3.2 to 29.6); risk ratio 1.16

(95% CI 0.97 to 1.39).21

The results of another study styled “Serious

harms of the COVID-19 vaccines: a systematic

review,” dated March 22, 2023, stated:

Results: We included 18 systematic reviews,

14 randomised trials, and 34 other studies

with a control group. Most studies were of

poor quality. The most reliable one was a

systematic review of regulatory data on the

two pivotal randomised trials of the mRNA

vaccines. It found significantly more SAEs

[serious adverse events] of special interest

with the vaccines than with placebo, and the

excess risk was considerably larger than the

benefit,

measured

as

the

risk

of

hospitalisation. The adenovirus vector

vaccines increased the risk of venous

thrombosis and thrombocytopenia, and the

mRNA based vaccines increased the risk of

myocarditis, with a mortality of about 1–2

per 200 cases. We also found evidence of

serious neurological harms, including Bell’s

palsy, Guillain-Barre syndrome, myasthenic

disorder and stroke, which are likely due to

an autoimmune reaction, as has been

suggested also for the HPV vaccines. Severe

harms, i.e. those that prevent daily

Joseph Fraiman, et al. “Serious adverse events of special

interest following mRNA COVID-19 vaccination in randomized

trials in adults.” Vaccine 40:40:5798-5805 (September 22, 2022).

https://www.sciencedirect.com/science/article/pii/S0264410X220

10283

21

– 24 –

activities, were hugely underreported in the

randomised trials. These harms were very

common in studies of booster doses after a

full vaccination and in a study of vaccination

of previously infected people.22

In yet another study dated July 19, 2024, titled

“Spatiotemporal variation of excess all-cause

mortality in the world (125 countries) during the

Covid period 2020-2023 regarding socio-economic

factors and public-health and medical interventions,”

the authors concluded:

Using the median value of all-ages vDFR for

2021-2022 for the 78 countries with

sufficient data gives an estimated projected

global all-ages excess mortality associated

with the COVID-19 vaccine rollouts up to 30

December 2022: 16.9 million COVID-19vaccine-associated deaths.

The spatiotemporal variations in national

excess all-cause mortality rates allow us to

conclude that the Covid-period (2020-2023)

excess all-cause mortality in the world is

incompatible with a pandemic viral

respiratory disease as a primary cause of

death.23

22 Peter C. Gotzsche and Maryanne Demasi, “Serious harms of

the COVID-19 vaccines: a systematic review.” Institute for

Scientific Freedom, March 22, 2023. https://www.medrxiv.org/

content/10.1101/2022.12.06. 22283145v2.full.pdf

23 Denis G. Rancourt, et al. “Spatiotemporal variation of excess

all-cause mortality in the world (125 countries) during the

Covid period 2020-2023 regarding socio economic factors and

public-health and medical interventions.” Correlation Research

in the Public Interest, Report, July 19, 2024. https://correlation-

– 25 –

Within the last year, a noteworthy cardiologist

“raised the alarm after uncovering bombshell data

showing that Covid mRNA shots have caused a

staggering 112,000% increase in brain clots.”24,25

Renowned oncology professor Angus Dalgleish of

St. George’s, University of London has stated, “[We

are] now facing a tsunami of mounting evidence that

the mRNA based covid vaccines not only cause

cancer progression but also inhibit current

treatments in controlling so-called ‘turbo cancers’,

sudden and aggressive either first time or relapsed

cancers, which are on the rise.”26 Some might

contend that what the American people have

experienced in the last several years regarding the

pandemic borders on genocide, in violation of 18

U.S.C. § 1091.

Clearly, long established manufacturers Pfizer

and Johnson & Johnson have represented in official

documents submitted to government agencies that

the vaccines they would produce to address the

pandemic known as COVID-19 were safe and

effective. Both Pfizer and Johnson & Johnson

certainly know what misbranding is, because they

have been prosecuted for such crimes, pled guilty

canada.org/covid-excess-mortality-125 countries/

24 https://dailynewsfromaolf.substack.com/p/top-cardiologist-dropsbombshell

25 Claire Rogers, et al. “COVID-19 Vaccines: A Risk Factor for

Cerebral Thrombotic Syndromes.” Intl. Journal of Innovative

Research in Medical Science 9:11, November 2024. https://

ijirms.in/index.php/ijirms/article/view/1982/1420

26 Dalgleisch, Angus. “This strong evidence of the link between

covid vaccines and cancer can no longer be ignored.” TCW, April

24, 2024. https://www.conservativewoman.co.uk/this-strongevidence-of-the-link-between-covid-vaccines-and-cancer-can-nolonger-be-ignored/

– 26 –

and paid some of the largest fines in American

history. They certainly did not learn from their

experience, and have again engaged in misbranding.

V. School district’s discharge of Wilkins was

wrongful and actionable.

Wilkins was employed with the Respondent

School District as a teacher, and he thus had a

vested property right in his job. Consequently, he

was entitled to a hearing when the district decided to

terminate that job. However, no hearing was ever

scheduled and the required hearing has been

carefully avoided by the district. The district thus

violated Wilkins’ due process rights. See Cleveland

Board of Education v. Loudermill, 470 U.S. 532, 54243 (1985); and Ass’n for L.A. Deputy Sheriffs v.

County of L.A., 648 F.3d 986 (9th Cir. 2011).

These facts were pled in Wilkins’ amended

complaint, yet both the district court as well as court

of appeals dismissed that complaint without leave to

amend. Federal Rule of Civil Procedure 15(a)

provides that leave to amend a complaint should “be

freely given when justice so requires.” Barry Aviation

Incorporated v. Land O’Lakes Municipal Airport

Commission, 377 F.3d 682 (7th Cir. 2004).

CONCLUSION

The petition for writ of certiorari should be

granted.

– 27 –

Respectfully submitted,

LOWELL H. BECRAFT, JR.

Attorney at Law

403C Andrew Jackson Way

Huntsville, AL 35801

256-533-2535

becraft@hiwaay.net

Counsel for Amicus Curiae,

Senator Kim Thatcher

August 1, 2025