Petition for Writ of Certiorari — Mazares v. Department of the Navy

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Supreme Court, U.S.

FILER

) O02 846 DFC =< 2003

OPPICE OF THE CLERK

In The

Supreme Court of the Gnited States

JOSEPH V. MAZARES, JR. and

MICHAEL R. TESTMAN,

Petitioners,

DEPARTMENT OF THE NAVY,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

PETER A. LYNCH

Counsel of Record

) SAM S. SHELDON

COZEN O’CONNOR

501 W. Broadway, #1610

San Diego, CA 92101

(619) 234-1700

Attorneys for Petitioners

— —

—————————————————

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

This petition presents a question of first impression to

this Court: whether the Department of the Navy may

lawfully order civilian mariners to take the anthrax

vaccine.

PARTIES TO THE PROCEEDINGS BELOW

Joseph V. Mazares, Jr. and Michael R. Testman,

petitioners herein, filed the action.

Department of the Navy, respondent.

iil

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW................. i

PARTIES TO THE PROCEEDINGS BELOW........... il

CITATIONS TO THE OPINIONS BELOW................ 1

JURISDICTION ........ccccccosssscccsccccvscccssccsssccvcsccsccceness 1

PROVISIONS OF LAW INVOLVED ...............2:::+00005 2

STATEMENT OF CASE AND FACTS. ...........::0::se000 2

I. STATEMENT OF FACT .............:cccceseeeeeseeees 2

Il. STATEMENT OF CASE .............:cseseeeseeeeeeeeees 6

EXISTENCE OF JURISDICTION BELOW............... 7

REASONS FOR GRANTING THE PETITION ......... 7

I. THE COURT OF APPEALS’ DECISION OF

FIRST IMPRESSION AFFIRMING THE

NAVY’S AUTHORITY TO VACCINATE CI-

VILIAN MARINERS DEPARTS FROM THE

ACCEPTED AND USUAL COURSE OF JU-

DICIAL PROCEEDINGS AND THEREFORE

CALLS FOR AN EXERCISE OF THIS

COURT’S SUPERVISORY POWER ................++

A. SUMIAARY OF REASONSG ...........::::220005

B. THE NAVY DOES NOT HAVE THE AU-

THORITY TO ORDER CIVILIAN MA-

RINERS TO TAKE THE ANTHRAX

VACCINE .........cssccsseseseeeseseessscesseeeeneeeeoes

CONCLUSION ..........:::cccccerseeeecennneeseseseeeneneeneseeeeaners

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Brehmer v. Fed. Aviation Admin., 294 F.34 1344

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TO THE HONORABLE WILLIAM H. REHNQUIST,

CHIEF JUSTICE, AND TO THE HONORABLE ASSOCI-

ATE JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES.

Joseph V. Mazares and Michael R. Testman respect-

fully petition for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the Federal

Circuit in this case.

CITATIONS TO OPINIONS BELOW

The opinion of the court of appeals which is the

subject of this petition (App. 1-9) was filed on September

11, 2002, and is reported at 302 F.3d 1382 (Fed. Cir. 2002).

The final orders of the Merit Systems Protection

Board were entered on July 16, 2001 (App. 13-15) and on

July 17, 2001 (App. 10-12) and were not reported.

JURISDICTION

The opinion of the United States Court of Appeals for

' the Federal Circuit was entered cn September 11, 2002

(App. 1-9). The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

PROVISIONS OF LAW INVOLVED

The Department of the Navy’s authority to order

civilian mariners to take the anthrax vaccine.

STATEMENT OF CASE AND FACTS

I. Statement of Facts

In November 1999, both Joseph V. Mazares (“Maza-

res”) and Michael R. Testman (“Testman”) were civilian

mariners employed by the Military Sealift Command

(MSC). The MSC operates a fleet of United States Naval

Ships (USNS) throughout the world in direct support of

the United States Navy. .

Mazares and Testman were assigned to sail on the

USNS KILAUEA, an ammunition ship operated by the

MSC and manned by both civilian mariners (CIVMARs)

and military personnel. The KILAUEA provides direct

support for warships of the Navy’s 7th Fleet, operating in

the western Pacific Ocean. Specifically, the KILAUEA

carries munitions for use aboard the aircraft carrier USS

KITTY HAWK.

Mazares held the excepted civil service position of

Able Seaman. In November 1999, he was 56-years-old and

had been employed by the MSC for approximately eleven

years. Mazares had also served three years on active duty

in the United States Navy, during which time he had

combat duty in Vietnam. While in Vietnam, Mazares was

exposed to Agent Orange. He also suffers from asbestosis.

Testman held the excepted civil service position of

Ordinary Seaman. In November 1999, he was 36-years-old

and had been employed by the MSC for approximately one

year. He also previously served ten years on active duty in

the United States Navy in an elite submarine force.

On November 8, 1999, Mazares, Testman and the rest

of the Deck Department were informed by First Officer

(“Chief Mate”) Edward Dickenson that they were required

to go in small groups to the ship’s medical office to take

the anthrax vaccine. The KILAUEA was sailing to a port

in Korea to undergo a major overhaul. The Commander of

the MSC directed that all members of the crew be vacci-

nated because Korea is considered a high-risk area for

biological weapons.

Mazares was extremely apprehensive about taking

the vaccine. As a result of previously suffering from

pneumonia, being exposed to Agent Orange and having

asbestosis, he was afraid that taking the vaccine would

result in a debilitating disease. Moreover, since taking the

vaccine was not a condition of his employment when he

was hired, Mazares did not believe that it was lawful to

force him to take the vaccine. Based on all of these factors,

Mazares informed the medical office that he would not

take the anthrax vaccine.

Similarly, Testman was extremely apprehensive about

taking the vaccine. Four months earlier, in July 1999, he

had also been ordered to take a dose of the vaccine.’ He

had initially refused, but changed his mind after the

Captain told him that he would be removed from the ship

and would be responsible for paying his own way back to

the United States. After taking this first dose, Testman

* Mazares did not come aboard the ship until September 1999, and

therefore was not a part of this earlier round of vaccinations.

experienced severe headaches, joint pain and swelling of

his hands and feet. Two weeks later, after taking a second

dose of the vaccine, he experienced similar symptoms.’

Based on his two prior negative reactions to the anthrax

vaccine, Testman informed Chief Mate Dickenson on

November 8th that he would not take the vaccine again.

The next day, on November 9th, the Captain (the

Master of the ship) held a meeting at which Chief Mate

Dickenson, Mazares and Testman were all present. The

Captain told Mazares and Testman that the issue was out

of his hands, and he was merely the messenger delivering

an order for them to take the vaccine. He further said that

they would meet again in a week, and if they still refused

to take the vaccine, then he would have no choice but to

remove them from the ship and repatriate them.

On November 16th, Chief Mate Dickenson approached

Mazares and Testman to confirm that they were still

refusing to take the vaccine. After both stated that they

would not take the vaccine, Chief Mate Dickenson told

Mazares and Testman that he was sorry, but had orders

from the Captain to sign them off the ship. Chief Mate

Dickenson then thanked them for their hard work and told

Mazares and Testman that both he and the Captain hoped

to sail with them again. Finally, he told them that the

Captain thought this issue was “a bunch of B.S.”

On November 20, 1999, both Mazares and Testman

were removed from the KILAUEA. In his Removal

* The Anthrax vaccine is not fully effective until after three

vaccinations on Day 0, Day 14 and Day 28. But Testman, for unknown

reasons, was never required to take a third vaccination in July 1999.

Evaluation, the Captain stated the following regarding

Mazares:

Mr. Mazares is an excellent seaman. His greatest

talent is his ability to take broken deck equip-

ment and fix it, his maintenance skills are sec-

ond to none. He requires no supervision and is a

self starter. He is strong physically and has the

ability to work long arduous hours stowing holds

and operating forklifts during high optempo evo-

lutions. His hard work was instrumental in the

success of the KILAUEA during the recent Flint

Ammunition Crossdeck and SMART inspection.

He has a good working knowledge of damage

control gear and has assisted the fire marshal in

his duties. His service aboard KILAUEA will

be greatly missed and I look forward to sail-

ing with him in the future.

Similarly, in his Removal Evaluation regarding Testman,

the Captain stated the following:

Mr. Testman is currently sailing as ordinary

seaman. He should be afforded the opportunity to

upgrade to AB as soon as possible. Mr. Testman

has excellent forklift operator skills and has as-

sisted in the stowage of ammunition holds. He

was a great help during the recent SMART In-

spection and cross deck of T-Fill with the USNS

Flint. He has great endurance and strength and

is capable of working long hours during high op-

tempo periods. He has been a valuable asset

to KILAUEA and I look forward to sailing

with him in the future.

In April 2000, the Navy removed both Mazares and

Testman from federal civil service, primarily on the

ground that they had refused a direct order to take the~

anthrax vaccine while sailing on the KILAUEA.

II. Statement of Case

In May 2000, Mazares and Testman timely appealed

the Navy’s decision to the Merit Systems Protection

Board.°

In September 2000, after conducting a one-day hear-

ing, the Administrative Judge affirmed the Navy’s deci-

sion, ruling that the Navy lawfully ordered Mazares and

Testman to take the anthrax vaccine (App. 16-37 and App.

38-61).

In October 2000, Mazares and Testman petitioned for

review before the Merit Systems Protection Board. In July

2001, the Board denied their petitions (App. 10-12 and

App. 13-15).

In August 2001, Mazares and Testman filed Petitions

for Review before the Federal Circuit Court of Appeals. On

September 11, 2002, in an opinion reported at 302 F.3d

1382 (Fed. Cir. 2002), the Federal Circuit Court of Appeals

affirmed the decision by the Merit Systems Protection

Board to remove both Mazares and Testman from federal

service.

* Mazares’ and Testman’s appeals were concurrently heard by the

Board, and the records of the two appeals were consolidated.

EXISTENCE OF JURISDICTION BELOW:

The Merit Systems Protection Board had jurisdiction

in this case under 5 U.S.C. §§ 7513(d) and 7701(a) because

both Joseph Mazares and Michael Testman were “employ-

ees” as defined in 5 U.S.C. § 7511(a)(1)(B).

The Federal Circuit Court of Appeals had jurisdiction

to hear this appeal under 28 U.S.C. § 1295(a)(9).

REASONS FOR GRANTING THE PETITION

I. THE COURT OF APPEALS’ DECISION OF

FIRST IMPRESSION AFFIRMING THE NAVY’S

AUTHORITY TO VACCINATE CIVILIAN MARI-

NERS DEPARTS FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS

AND THEREFORE CALLS FOR AN EXERCISE

OF THIS COURT’S SUPERVISORY POWER

A. Summary Of Reasons

In March 1999, the Department of Defense (“DoD”)

issued a memorandum regarding the applicability of the

anthrax vaccine to civilian employees:

Effective immediately, the AVIP (Anthrax Vac-

cine Immunization Program) will be applied to

all U.S. military personnel and Department of

Defense (DoD) emergency essential civilian em-

ployees.... Neither this policy nor the re-

quirement to participate in AVIP is

applicable to civilian employees or contrac-

tor personnel who are not designated as

emergency essential.

(App. 74-75) (emphasis added).

Despite the clarity of this memorandum, in October

1999, the Commander of the MSC issued a contrary

message requiring CIVMARs to take the anthrax vaccine

even though the Navy agrees that CIVMARs are not

emergency essential employees. Until the DoD issues a

supplemental memorandum requiring CIVMARs to take

the anthrax vaccine, it is unlawful for the Navy to make a

contrary order. Accordingly, the court’s decision affirming

the Navy’s authority to vaccinate CIVMARs departs from

the accepted and usual course of judicial proceedings and

therefore calls for an exercise of this Court’s supervisory

power.

B. The Navy Does Not Have The Authority To

Order CIVMARs To Take The Anthrax Vac-

cine

In 1993, the Secretary of Defense issued DoD Direc-

tive 6205.3, “DoD Immunization Program for Biological

Warfare Defense” (App. 62-70). Under the Directive, the

Assistant Secretary of Defense for Health Affairs has the

responsibility to “issue instructions to the Military De-

partments ... on the immunization of DoD personnel”

(App. 65). Moreover, the Assistant Secretary of Defense for

Health Affairs “shall direct the Secretaries of Military

Departments to begin immunization of the DoD personnel

against specific biological warfare threat agents” (App. 69-

70). Nowhere in Directive 6205.3 did the Secretary ever

delegate DoD authority to designate which personnel

may be required to participate in an immunization pro-

_gram.

In 1997, the Secretary of Defense approved the im-

plementation of the Anthrax Vaccination Program. In

1998, the Secretary promulgated the implementation in a

memorandum to the Secretaries of the Military Depart-

ments (App. 71-73). In his memorandum, the Secretary

stated that “the Assistant Secretary of Defense for Health

Affairs is responsible for the promulgation of medical

standards, policies and protocols of the program” (App.

72). Nowhere in this memorandum did the Secretary ever

delegate DoD authority to designate which personnel

may be required to participate in the Anthrax Immuniza-

tion Program.

In March 1999, the Assistant Secretary of Defense for

Health Affairs issued a memorandum regarding the

applicability of the anthrax vaccine to civilian employees:

Effective immediately, the AVIP (Anthrax Vac-

cine Immunization Program) will be applied to

all U.S. military personnel and Department of

Defense (DoD) emergency essential civilian em-

ployees.... Neither this policy nor the re-

quirement to participate in AVIP is

applicable to civilian employees or contrac-

tor personnel who are not designated as

emergency essential.

(App. 74-75) (emphasis added). The Navy agrees that

neither Mazares nor Testman has ever been designated as

an “emergency essential civilian employee” (App. 5).

In October 1999, however, the Commander of MSC

authored the following message contradicting the Assis-

tant Secretary of Defense’s memorandum:

The purpose of this msg is to delineate the MSC

immunization (including anthrax) policy for civil-

ian mariners (CIVMARs).... Phase I requires

that personnel subject to deployment into high

threat areas for any length of time be immunized

for anthrax ... all navy and military sealift

command ships, including CIVMARs are subject

to the same immunization req as deployable

forces.

(App. 76-78).

In the present case, the Navy’ Program Manager for

AVIP testified at the one-day hearing held by the Adminis-

trative Judge (“AJ”) regarding the Navy’s authority to

order CIVMARs to take the anthrax vaccine. During the

hearing, the AJ asked the Program Manager if she could

specifically provide him with any military authority that

states CIVMARs may be required to take the anthrax

vaccine. The Program Manager testified, “No, your honor.”

However, the Program Manager testified that her

“interpretation” of BUMEDINST 6230.15 provided the

Navy with the authority to order CIVMARs to take the

anthrax vaccine. In 1995, the Navy Surgeon General

promulgated BUMEDINST 6230.15 to establish general

principles, procedures, policies, and responsibilities for the

Navy’ immunization program (App. 80-87). BUMEDINST

6230.15 provides that CIVMARs are subject to the same

immunization requirements as all “alert forces” (App. 85).

The word “anthrax,” however, does not appear

anywhere in BUMEDINST 6230.15. Moreover, the

Assistant Secretary of Defense for Health Affairs issued

the memorandum regarding the applicability of the

anthrax vaccine to civilian employees in March 1999,

three years after the promulgation of BUMEDINST

6230.15. Therefore, the DoD’s memorandum supercedes

anything stated to the contrary in BUMEDINST 6230.15.

The court of appeals, however, for the following

reasons affirmed the Navy’s decision to remove both

Mazares and Testman from federal service for refusing to

take the anthrax vaccine. First, the court stated that the

“policy” issued by the DoD regarding the applicability of

the anthrax vaccine to civilian employees is “just that,”

and therefore is not a “black letter rule” that the Navy is

always required to follow (App. 6). To support this proposi-

tion, the court cites Brehmer v. Fed. Aviation Admin., 294

F.3d 1344 (Fed. Cir. 2002).*

In Brehmer, an air traffic controller was terminated

after making three different operational errors. The air

traffic -controller asserted that her termination was im-

proper because the Federal Aviation Administration (FAA)

had a “general policy” of dealing with operational errors by

corrective training rather than disciplinary action. The

court held that the FAA’s “general policy” did not require it

to give the air traffic controller additional training because

a “policy” is not a “black letter rule” that is required to be

followed by the FAA in all cases without regard to the

circumstances of the particular situation before it,

In the present case, the court’s reliance on Brehmer is

misplaced. In Brehmer, the issue was whether the FAA

had properly followed its own “general” employment

procedures when removing the air traffic controller from

service. In contrast, the issue here is whether the Navy

properly applied the “specific” intent of the memorandum

issued by the DoD, a superior agency: “Neither this policy

nor the requirement to participate in AVIP is applicable to

civilian employees or contractor personnel who are not

* Brehmer was decided approximately two months before the

instant case, and the circuit judge who drafted the opinion in Brehmer

also drafted the opinion in the instant case.

12 :

designated as emergency essential.” Nothing in this

statement could reasonably be construed to mean that the

DoD did not intend for all subordinate military depart-

ments including the Navy to follow its policy on civilian

anthrax vaccinations. Accordingly, the court’s reliance on

Brehmer for the proposition that the Navy is not required

to follow the “specific” DcD policy on anthrax vaccination

because a “policy” is not a “black letter rule” clearly

departs from the accepted and usual course of judicial

proceedings.

Second, the court in support of its decision states that

the anthrax policy issued by the DoD did not “either

explicitly or by necessary implication” prohibit the Navy

from vaccinating civilian employees who are not desig-

nated as “emergency essential,” but states only that the

DoD’s general policy does not cover these employees (App.

6). Once again, the DoD policy clearly states, “Neither

this policy nor the requirement to participate in

AVIP is applicable to civilian employees or contrac-

tor personnel who are not designated as emergency

essential.” Therefore, contrary to the court’s assertion,

the memorandum does say that only civilian employees

who are designated as “emergency essential” may be

required to take the anthrax vaccine.

Third, the court states that there is ample authority

in the appropriate Navy regulations and directives for the

Navy to require all civilian employees, including those not

designated as “emergency essential,” to take the anthrax

vaccine (App. 6-7). The court cites DoD Directive 6205.3,

“DoD Immunization Program for Biological Warfare

Defense” to support this proposition (App. 62-70). Con-

trary to the court’s assertion, as previously discussed

under this Directive, the Assistant Secretary of Defense for

Health Affairs [not the Navy] has the responsibility to

“issue instructions to the Military Departments... on the

immunization of DoD personnel” (App. 65). Moreover, the

Assistant Secretary of Defense for Hecith Affairs “shall

direct the Secretaries of Military Departments to begin

immunization of the DoD personnel against specific

biological warfare threat agents” (App. 69-70). This is

precisely what the Assistant Secretary did when he issued

the memorandum stating that only civilian employees who

are designated as “emergency essential” may be required

to take the anthrax vaccine. Therefore, nothing in DoD

Directive 6205.3 supports the court’s assertion that the

Navy may contradict DoD policy by ordering civilian

employees not designated as “emergency essential” to take

the anthrax vaccine.

Additionally, the court states that the Navy issued an

instruction that authorized immunization against all

biologicai threats for “alert forces,” including CIVMARS

(App. 7). However, as previously discussed nowhere in

BUMEDINST 6230.15 is it specifically stated that

CIVMARs may be required to take the anthrax vaccine

(App. 80-87). In fact, nowhere in BUMEDINST 6230.15 is

the word “anthrax” even mentioned. Finally, the March

1999 memorandum issued by the Assistant Secretary of

Defense for Health Affairs supercedes _BUMEDINST

6230.15 promulgated in November 1995. Therefore, the

court’s reliance on BUMEDINST 6230.15 to support its

* The court is referring to BUMEDINST 6230.15 (App. 80-87 and

specifically App. 86), but in its opinion it did not expressly state this

citation.

conclusion that the Navy may order CIVMARs to take the

anthrax vaccine is misplaced.

Finally, the court states that the Navy had previously

issued a specific instruction relating to anthrax which

authorized mandatory vaccination for civilian employees

having status equivalent to deployable forces (App. 6).°

However, the same instruction states, “Immunization

against anthrax is indicated for those employees (DON

civilians) whose duties classify them ‘Mission Essential’

and place them at risk for exposure to anthrax used as a

biological weapon in a combat or operational setting”

(emphasis added) (App. 89). Mazares and Testman have

never been designated as “Mission Essential” employees

and the Navy has never made a contrary assertion. In fact,

the term “Mission Essential” is not defined in any regula-

tion or law. Nonetheless, even if Mazares and Testman

were considered “Mission Essential” personnel, and thus

subject to anthrax vaccinations in 1998, the Assistant

Secretary of Defense’s 1999 memorandum, which exempts

all essential civilian personnel from anthrax vaccinations

except those designated as “emergency essential,” super-

cedes this earlier Navy instruction.

- CONCLUSION

For all of the reasons stated herein, the court’s first

impression decision affirming the Navy’s authority to

vaccinate CIVMARs departs from the accepted and usual

* The court is referring to SECNAVINST 6230.4 (App. 88-90), but

in its opinion it did not expressly state this citation.

course of judicial proceedings and therefore calls for an

‘exercise of this Court’s supervisory power. Accordingly,

this petition for writ of certiorari should be granted.

Dated: December 3, 2002 Respectfully submitted,

COZEN O’CONNOR

PETER A. LYNCH

Counsel of Record

SAM S. SHELDON

Attorneys for Petitioners

App. 1

United States Court of Appeals

for the Federal Circuit

01-3337, -3338

JOSEPH V. MAZARES, JR..,

Petitioner,

DEPARTMENT OF THE NAVY,

Respondent.

MICHAEL R. TESTMAN,

Petitioner,

DEPARTMENT OF THE NAVY,

Respondent.

DECIDED: September 11, 2002

Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit

Judge, and GAJARSA, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

The Department of the Navy removed two civilian

seamen it employed aboard a naval ship because they

disobeyed an order to be vaccinated against anthrax. The

Merit Systems Protection Board (“Board”) upheld both

removals. So do we.

App. 2

A. The facts found by the Board’s administrative

judge are not disputed.

The petitioners Mazares and Testman were employed

by the Military Sealift Command aboard the naval ship

Kilauea. The crew was approximately eighty percent

civilian mariners (known in Navy lexicon as CIVMARs)

and twenty percent military personnel. The Kilauea

carried ammunition, which it supplied to an aircraft

carrier operating in the western Pacific Ocean.

The Kilauea was headed for a port in Korea, where it

was scheduled to undergo a major overhaul. Because

Korea was considered a high-risk area for biological

weapons, the Commander of the Military Sealift Com-

mand ordered that all members of the crew, civilian and

military, be vaccinated against anthrax.

The chief mate, who was the immediate supervisor of

Mazares and Testman, ordered them to report to the

Medical Services Officer to be vaccinated. He told them

that if they had “questions” they should ask the Medical

Officer. They refused to take the vaccination.

The next day they and the chief mate met with the

captain. He stated that he was just carrying out his

instructions in requiring the vaccination, and warned

them that if they failed to take the vaccine, they would be

charged with “violating an order.” He stated they would

meet again in one week.

During the next week the chief mate repeatedly urged

them to take the vaccine, but they continued to refuse. At

the end of the week, when they still refused, he told them

App. 3

he had “orders” from the captain to “sign [them] off the

ship.”

B. They were both then transferred from the ship

and repatriated to California. The Navy then instituted

removal proceedings against them.

In response to the notices of proposed removal, each of

them admitted he had received the vaccination order and

disobeyed it, but offered justifications for his conduct that,

he asserted, entitled him to a medical waiver. (The Navy

permits vaccination requirements to be waived for medical

reasons.) Mazares stated that he suffered from asbestosis

and had been exposed to Agent Orange during his military

service in Vietnam. Testman stated that he previously had

received the first two doses of the series required for

anthrax vaccination, and that each time he had suffered

headaches and body pains (he continued to work neverthe-

less).

The Navy cancelled the proposed. removals and

investigated Mazares’s and Testman’s claims. It concluded,

however, that neither of them was entitled to a medical

waiver of the vaccination requirement and, after full

administrative proceedings, removed both of them “for

failure to obey a direct order to receive mandatory injec-

tions of an anthrax immunization vaccine.”

Mazares and Testman each appealed his removal to

the Board. The same administrative judge heard both

cases. In his initial decisions, which became final when the

Board refused to review them, the administrative judge

upheld the removals.

In detailed opinions, he held that the Navy had

proved by preponderant evidence its charges that Mazares

App. 4

and Testman “willfully and intentionally refused the order

of a superior officer.” He rejected their contention that the

order was unauthorized, finding that the Navy “had full

authority to order the appellant[s] to submit to anthrax

vaccination, and immediate vaccination became a re-

quirement of the appellant's CIVMAR position when

KILAUEA was ordered to land in Korea, which had been

designated a high-threat area.” He noted that their “sub-

jective fear of vaccination was not sufficient to excuse

[their] failure to obey a direct order.” The administrative

judge “conclude[d] that the vaccination orders were lawful,

and the agency had a right to have them obeyed.”

Finally, the administrative judge upheld the penalty

of removal. He concluded that the officer who selected the

penalty “considered the relevant factors and exercised his

discretion within tolerable limits of reasonableness. Under

the circumstances, I cannot find that his choice of penalty

was so excessive as to be an abuse of discretion, or that it

exceeds the maximum reasonable penalty under the

circumstances.” (citations omitted).

Mazares and Testman here challenge their removals

on two grounds. They contend (A) that the order to receive

the anthrax vaccine was unauthorized and therefore they

could not be punished for disobeying it, and (B) that the

penalty of removal was excessive.

A. Their challenge to the validity of the orders rests

primarily upon a one-page March 30, 1999, memorandum

from the Assistant Secretary of Defense to the Secretaries

of the Army, Navy, and Air Force. The subject of the

VEEP ee ee ee ee

App. 5

memorandum was “Change to Anthrax Vaccine Immuniza-

tion Program (AVIP) Operation Procedure (One Day

Policy) Schedule.” They rely upon the first paragraph of

the memorandum, which stated:

Effective immediately, the AVIP will be applied to

all U.S. military personnel and Department of

Defense (DoD) emergency essential civilian em-

ployees and contractor personnel assigned, de-

ployed or on temporary duty in the high threat

areas and contiguous waters of South-west Asia

(Kuwait, Saudi Arabia, Bahrain, Jordan, Qatar,

Oman, UAE, Yemen, and Israel) and the Korean

Peninsula for any period of time. Prior to entry

into the designated high threat areas these per-

sonnel must initiate vaccination against anthrax

in accordance with the prescribed Immunization

schedule. Ideally, personnel should receive at

least the first three vaccinations in the series. In

those rare circumstances when an Individual is

not able to take or continue with the anthrax

vaccination for medical or administrative rea-

sons, they will be evaluated for deployability in

accordance with Service criteria. Neither this

policy nor the requirement to participate in AVIP

is applicable to civilian employees or contractor

personnel who are not designated as emergency

essential.

Since it is conceded that Mazares and Testman have

not been designated as “emergency essential” employees,

they contend that the captain of the Kilauea had no

authority to order them to receive the anthrax vaccine.

They particularly stress the last section of the first para-

graph, which states that “[nJeither this policy nor the

requirement to participate in AVIP is applicable to civilian

App. 6

employees or contractor personnel who are not designated

as emergency essential.”

As this court recently stated, although in a different

context, “[a] ‘policy is just that, however. It indicates the

standards an agency generally will follow in conducting its

operations. It is not, however, a black letter rule that the

agency is required to follow in all cases without regard to

the circumstances of the particular situation before it.”

Brehmer v. Fed. Aviation Admin., 294 F.3d 1344, 1348

(Fed. Cir. 2002). Those words are equally applicable to the

present case.

The memorandum states the general policy the

services are to follow in administering the anthrax vaccine

to military and civilian personnel and the policy is inappli-

cable to non-“emergency essential” civilian employees. It

does not, however, either explicitly or by necessary impli-

cation, prohibit anthrax vaccination of such civilian

employees, i.e., those who are not designated “emergency

essential.” It states only that the Department’s general

policy providing for anthrax vaccination does not cover

those employees.

There is ample authority in the appropriate Navy

regulations and directives for the Navy to require all

civilian employees, including those not designated “emer-

gency essential,” to receive the anthrax vaccine when the

Navy determines that such action is necessary and appro-

priate to protect the health of such employees. In a written

policy that antedated the March 30, 1999, memorandum

upon which Mazares and Testman rely, the Department of

Defense provided for the immunization of personnel

expected to enter certain “high-threat areas” — referring to

areas “in the proximity of a nation or nations considered to

App. 7

pose a potential biological threat to DoD personnel by the

Chairman of the Joint Chiefs of Staff in consultation with

the Commanders of the Unified Commands and the

Director, DIA.” DoD Directive 6205.3, “DoD Immunization

Program for Biological Warfare Defense” (Nov. 26, 1993).

The Secretary of the Navy then issued an instruction that

authorized immunization against biological threats for all

“alert forces,” including civilian mariners. The Department

of the Navy also issued an instruction specifically relating

to anthrax, which authorized mandatory vaccination for

“Federal .‘vilian employees and other groups having

status equivalent to deployable forces serving under the

auspices of the [Department of the Navy]... . [IJn certain

instances, anthrax immunization might be determined by

the appropriate authority to be a condition of [civilian]

employment.”-

Finally, the Commander of the Military Sealift Com-

mand issued an order dated October 14, 1999, that stated

that “[t]he basic immunization series for deployable Naval

Forces, including anthrax, is a requirement for all MSC

CIVMARs unless medically waived.” This order directed

also that immunization was to begin immediately for those

personnel “subject to deployment into high threat areas for

any length of time.” It was pursuant to this order, a copy of

which was sent to the Kilauea, that the captain of that

vessel ordered Mazares and Testman to be given the

anthrax vaccination.

The military has broad authority and discretion in

dealing with its personnel, both military and civilian,

including the protection of their health. The Navy did not

exceed its authority or otherwise abuse its discretion by

ordering Mazares and Testman to undergo anthrax vacci-

nation.

App. 8

B. The penalty of removal was neither unauthorized

nor excessive. The misconduct for which Mazares and

Testman were removed was “failure to obey a direct order

to receive mandatory injections of an anthrax immuniza-

tion vaccine.” That misconduct constituted insubordina-

tion, which this court defines as a “willful and intentional

refusal to obey an authorized order of a superior officer

which the officer is entitled to have obeyed.” Bieber v. Dep’t

of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002).

Insubordination is a serious offense that disrupts the

work place and interferes with and threatens the ability of

the work force to perform its duties. Its adverse impact is

particularly serious in the military, where prompt obedi-

ence to lawful orders is essential, especially aboard a ship.

In this case, there was a clear and unjustified refusal to

obey the lawful order of a superior. There can be no ques-

tion that the removal of Mazares and Testman was “for

such cause as will promote the efficiency of the service.” 5

U.S.C. § 7513 (2000).

“Our statutory scope of review [of penalties] is narrow.

Determination of an appropriate penalty is a matter

committed primarily to the sound discretion of the employ-

ing agency.” Connolly v. Dep’t of Justice, 766 F.2d 507, 514

(Fed. Cir. 1985) (citing Miguel v. Dep't of the Army, 727

F.2d 1081, 1083 (Fed. Cir. 1984)). See also Brown v. Dep’t

of the Navy, 229 F.3d 1356 (Fed. Cir. 2000). Unless the

penalty is totally unwarranted or grossly disproportionate

to the misconduct, we will not overturn it. See Mings v.

Dep't of Justice, 813 F.2d 384, 390 (Fed. Cir. 1987); Miguel

v. Dep't of the Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984).

Here, as the Board noted, the agency considered all

the relevant factors set forth in Douglas v. Veterans

App. 9

Admin., 5 M.S.P.R. 280 (1981), in deciding to remove

Mazares and Testman. The agency “considered” the

employees’ fifteen and eleven years, respectively, of “hon-

orable and dedicated service,” their prior “naval status”

and their “excellent evaluations.” The deciding officer

stated that although each of them had been an “out-

standing” civilian mariner, he found that “there is no basis

for your failure to receive mandatory injections of the

anthrax immunization vaccine.” He also explained: “I have

lost confidence in your ability to perform at a satisfactory

level due to your refusal to take the anthrax vaccine. Also,

the nature of the offense causes me to question your

reliability and weakens my confidence in your ability to

carry out your duties ... during future missions where

this vaccine is required.”

The Board correctly determined that the agency-

imposed penalty of removal did not “exceed[ ] the maxi-

mum reasonable penalty under the circumstances.”

CONCLUSION

The decision of the Board is

AFFIRMED.

App. 10

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH V. MAZARES, JR.., DOCKET NUMBER

SF-0752-00-0445-I-1

Appellant,

V. —

DEPARTMENT OF THE NAvy, DATE: JUL 17 2001

Agency.

Tim S. McClain, Esquire, La Jolla, California,

for the appellant.

Sandra Patterson-Jackson, Esquire, Virginia

Beach, Virginia, for the agency.

BEFORE

Beth S. Slavet, Chairman

Barbara J. Sapin, Vice Chairman

Susanne T. Marshall, Member

FINAL ORDER

The appellant has filed a petition for review in this

case asking us to reconsider the initial decision issued by

the administrative judge. We grant petitions such as this

one only when significant new evidence is presented to us

that was not available for consideration earlier or when

the administrative judge made an error interpreting a law

or regulation. The regulation that establishes this stan-

dard of review is found in Title 5 of the Code of Federal

Regulations, section 1201.115 (5 C.F.R. § 1201.115).

App. 11

After fully considering the filings in this appeal, we

conclude that there is no new, previously unavailable,

evidence and that the administrative judge made no error

in law or regulation that affects the outcome. 5 C.F.R.

§ 1201.115(d). Therefore, we DENY the petition for review.

The initial decision of the administrative judge is final.

This is the Board’s final decision in this matter. 5 C.F.R.

§ 1201.113.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this

final decision.

Discrimination Claims: Administrative Review

You may request the Equal Employment Opportunity

Commission (EEOC) to review this final decision on your

discrimination claims. See Title 5 of the United States

Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). You must

send your request to EEOC at the following address:

Equal Employment Opportunity Commission

Office of Federal Operations

P.O, Box 19848

Washington, DC 20036

You should send your request to EEOC no later than 30

calendar days after your receipt of this order. If you have a

representative in this case, and your representative

receives this order before you do, then you must file with

EEOC no later than 30 calendar days after receipt by your

representative. If you choose to file, be very careful to file

on time.

App. 12

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final

decision on your discrimination claims, you may file a civil

action against the agency on both your discrimination

claims and your other claims in an appropriate United

States district court. See 5 U.S.C. § 7703(b)(2). You must

file your civil action with the district court no later than 30

calendar days after your receipt of this order. If you have a

representative in this case, and your representative

receives this order before you do, then you must file with

the district court no later than 30 calendar days after

receipt by your representative. If you choose to file, be very

careful to

App. 13

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL R. TESTMAN, - DOCKET NUMBER

SF-0752-00-0445-I-1

Appellant,

Vi.

DEPARTMENT OF THE NAVY, DATE: JUL 16 2001

Agency.

Tim S. McClain, Esquire, La Jolla, California,

for the appellant.

Sandra Patterson-Jackson, Esquire, Virginia

Beach, Virginia, for the agency.

BEFORE

Beth S. Slavet, Chairman

Barbara J. Sapin, Vice Chairman

Susanne T. Marshall, Member

FINAL ORDER

The appellant has filed a petition for review in this

case asking us to reconsider the initial decision issued by

the administrative judge. We grant petitions such as this

one only when significant new evidence is presented to us

that was not available for consideration earlier or when

the administrative judge made an error interpreting a law

or regulation. The regulation that establishes this stan-

dard of review is found in Title 5 of the Code of Federal

Regulations, section 1201.115 (5 C.F.R. § 1201.115).

App. 14

After fully considering the filings in this appeal, we

conclude that there is no new, previously unavailable,

evidence and that the administrative judge made no error

in law or regulation that affects the outcome. 5 C.F.R.

§ 1201.115(d). Therefore, we DENY the petition for review.

The initial decision of the administrative judge is final.

This is the Board’s final decision in this matter. 5 C.F.R.

§ 1201.113.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this

final decision.

Discrimination Claims: Administrative Review

You may request the Equal Employment Opportunity

Commission (EEOC) to review this final decision on your

discrimination claims. See Title 5 of the United States

Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). You must

send your request to EEOC at the following address:

Equal Employment Opportunity Commission

Office of Federal Operations

P.O. Box 19848

Washington, DC 20036

You should send your request to EEOC no later than 30

calendar days after your receipt of this order. If you have a

representative in this case, and your representative

receives this order before you do, then you must file with

EEOC no later than 30 calendar days after receipt by your

representative. If you choose to file, be very careful to file

on time.

App. 15

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final

decision on your discrimination claims, you may file a civil

action against the agency on both your discrimination

claims and your other claims in an appropriate United

States district court. See 5 U.S.C. § 7703(b)(2). You must

file your civil action with the district court no later than 30

calendar days after your receipt of this order. If you have a

representative in this case, and your representative

receives this order before you do, then you must file with

the district court no later than 30 calendar days after

receipt by your representative. If you choose to file, be very

careful to

App. 16

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE

JOSEPH V. MAZARES, JR.,

Appellant DOCKET NUMBER

‘ SF-0752-00-0445-I-1

DATE:

DEPARTMENT OF THE

NAVY, September 1, 2000

Agency.

Tim S. McClain, Esquire, La Jolla, California, for

the appellant.

Sandra Patterson-Jackson, Esquire, Virginia

Beach, Virginia, for the agency.

BEFORE

Philip D. Reed

Administrative Judge

INITIAL DECISION

_ INTRODUCTION

The appellant timely appealed the agency’s action

that removed him from the excepted service position of

Able Seaman. He is a preference-eligible who occupied the

same or similar position for more than one year, and is

therefore an “employee” as defined in 5 U.S.C.

§ 7511(a)(1)(b). The Board has jurisdiction under 5 U.S.C.

' Initial Appeal File (IAF), Vol. 1, Tab 1; id., Vol. 4, Tab 5 (“Agency

File”), Subtabs 1, 4a; Official Hearing Tapes (H.T.), testimony of

appellant.

App. 17

§§ 7513(d) and 7701(a). A hearing was held on August 17,

2000.

For the reasons explained below, the agency’s action is

AFFIRMED.

ANALYSIS AND FINDINGS

At the time of his removal the appellant had been

employed by the agencys Military Sealift Command

(MSC) for approximately eleven years, with no prior

discipline and a record of satisfactory or better perform-

ance. He also served for approximately three years as a

uniformed member of the United States Navy, for a total

of approximately fourteen years of combined federal

service.

On December 23, 1999, the agency proposed his

removal on a single charge of “failure to obey a direct order

to receive mandatory injections of an anthrax immuniza-

tion vaccine,” supported by two specifications: (1) “On 16

November 1999, while aboard USNS KILAUEA (TAE 26),

you were scheduled to receive an injection of the anthrax

vaccine. You refused to be vaccinated with the anthrax

vaccine”; and (2) “Captain J.A. Cook, Master, USNA

KILAUEA (TAE 26), gave you a direct order to be vacci-

nated, and advised you that failure to obey the order was a

serious offense and would result in the initiation of re-

moval procedures. You again refused.”

* Agency File, Subtab 4o.

App. 18

In reply to the proposed removal, the appellant

acknowledged that he had been ordered to report for the

vaccination in question, and refused to do so. He con-

tended, however, that he should not be disciplined because

the vaccination program was illegal as applied to himself,

and also violated his constitutional right to equal protec-

tion under the law.’ In addition, he requested waiver of

the vaccination requirement on medical grounds, and

accommodation of alleged medical conditions of asbestosis

and the effects of exposure to Agent Orange during his

military service.‘ Having considered these arguments, the

agency carried out his removal effective April 11, 2000.

On appeal, the appellant continues to maintain that

the vaccination order was illegal, and his refusal to obey

that order was obtained by “duress.” He also raises af-

firmative defenses including ~alleged violations of his

procedural and constitutional rights, and a de facto claim

of illegal discrimination on the basis of disability.°

The agency has proven its charge of failure to

obey a direct order by preponderant evidence.

The agency bears the burden of proving its charge by

preponderant evidence. 5 C.F.R. § 1201.56(a). Here, I find

that “failure to obey a direct order” is tantamount to a

charge of insubordination, which has been defined as “a

willful and intentional refusal ... to obey an authorized

* Id., Subtab 4j. ~

* Id., Subtabs 4e, 4f, 4h.

* Id., Subtabs 4a, 4b.

* IAF, Vol. 2, Tab 18.

App. 19

order of a superior officer which the officer is entitled to

have obeyed.” Phillips v. General Services Administration,

878 F.2d 370, 373 (Fed. Cir. 1989) (Emphasis omitted.)

Thus, the agency must prove intent in order to support its

charge. Id.

The KILAUEA is an ammunition ship, operated by

MSC and manned by both civilian mariners (CIVMARs)

and military personnel.’ At the time in question it was

providing direct support for warships of the Navy’s 7th

Fleet, operating in the western Pacific Ocean. Its primary

mission was to carry munitions for use aboard the aircraft

carrier USS KITTY HAWK. In approximately October

1999 the KILAUEA was ordered to proceed to a port in

Korea to undergo a major overhaul. Insofar as Korea was

considered a high-risk area for biological weapons, includ-

ing anthrax, the Commander of MSC directed that all

members of the crew be vaccinated against anthrax.’

According to the both the appellant and another

CIVMAR, Ordinary Seaman Michael Testman,” the

following events ensued. On November 8, 1999, they and

" The ship’s medical officer estimated that at the time in question

the crew of the KILAUEA numbered approximately 100 persons,

approximately 80% of whom were civilians and 20% were uniformed

service members. H.T., testimony of Jensen.

* Id., testimony of Cook.

* Id.

° Mr. Testman also refused the vaccine, and was removed from his

position on that basis. For purposes of administrative economy his

Board appeal, Docket No. SF-0752-00-0451-I-1, was heard concurrently

with this one. IAF, Vol. 1, Tab 3; Vol. 2, Tab 18; H.T., opening remarks

of administrative judge. For ease of reference, the records of the two

appeals are hereby consolidated.

App. 20

the rest of the Deck Department were told by the ship’s

First Officer or “Chief Mate,” Edward Dickerson, to go to

the office of the ship’s Medical Service Officer (MSO),

Thomas Jensen, and receive the vaccine, the appellant for

the first time and Mr. Testman for the third. The appel- —

lant testified further that Chief Mate Dickerson said they

were to go in “groups of three,” if they had “questions, ask

the MSO,” and if they “refused” then “discipline” would

ensue. The appellant also testified that he went to see

MSO Jensen as ordered, but told him that he was “not

going to take the shot.” Mr. Testman testified that he told

Chief Mate Dickerson, “I don’t want to take the shot,” and

never went to see the MSO.”

Both testified further that the next day, Chief Mate

Dickerson summoned them to a meeting with himself and

the Master of the vessel, captain Jeffrey Cook, in Captain

Cook’s office. At that time, Captain Cook told them that

the matter was “out of [his] hands, [he] was merely the

messenger,” and had been “ordered to issue [them] an

order” to take the vaccine, and “those who refuse will be

charged with violating an order.” Captain Cook also told

them that they would “meet here again in one week,” and

“if [they] refuse[d]” at that point, he would “have no choice.

I have my orders too,” he reportedly stated.”

For the next week Chief Mate Dickerson repeatedly

urged both sailors, in a good-natured but “emphatic”

manner, to take the vaccine. At the end of the week he

approached them and one other civilian who had also

" Id., testimony of appellant, Testman.

" Id., testimony of appellant.

App. 21

refused and said, grinning, “You guys aren’t going to take

the shot, are you?” All three stated that they would not.

Chief Mate Dickerson then told them that he was “sorry,”

but he had orders from Captain cook to “sign [them] off”

the ship. He thanked them for their good work, and said

both he and the Captain “hoped to sail with [them] again,”

adding, “(Captain Cook] thinks this is a bunch of B.S.”"

Chief Mate Dickerson and Captain Cook confirmed

this account in all important respects.“ I therefore find

that the agency has shown by preponderant evidence that

the appellant was directed by Chief Mate Dickerson, and

then by Captain Cook, to go to the MSO’s office and be

vaccinated for anthrax, and in each instance he intention-

ally refused to do so. I therefore conclude that on each

occasion the appellant willfully and intentionally refused

the order of a superior officer. See Phillips, 878 F.2d at

373.

It remains to be seen, however, whether the vaccina-

tion order was “authorized.” Jd. The appellant maintains

that it was not because, with one exception not applicable

* Id., testimony of appellant, Testman.

* Id., testimony of Dickerson, Cook. Both recalled that the meeting

in the Captain’s office took place at the end of the one-week grace

period, rather than the beginning. Jd. This is contrary to a contempora-

neous e-mail message from Captain Cook, which supports the chronol-

ogy given by the appellant and Mr. Testman. IAF, Vol. 2, Tab 22,

Exhibit 1, at 3-4. In any event, I find that the precise dates and order of

events are immaterial, insofar as the events themselves are admitted.

See Aiu v. Department of Justice, 70 M.S.P.R. 509, 519, aff'd, 98 F.3d

1359 (Fed.Cir.1996) (Table) (agency need only prove the essence of its

charge, not every factual specification).

App. 22

here,” MSC allegedly lacked authority to order its civilian

mariners to take the anthrax vaccine. To put it another

way, he maintains that his insubordination resulted from

an unlawful order, and was therefore procured by “du-

ress.” See, e.g., Gomez v. Department of Agriculture, 68

M.S.P.R. 36, 38-39 (1994).

As a preliminary matter, I find that the Board lacks

authority to review the underlying reasons for the vaccina-

tion order, or rule on its merits. Captain Cook testified

without contradiction that at the time in question, Korea

had been designated a high-threat area for biological

weapons, and in the expectation that KILAUEA would

soon land there, he was ordered by the Commander of

MSC to immunize his crew against anthrax.” Record

evidence establishes that the Commander of MSC derives

authority to make such an order from the Secretary of the

Navy and the Chief of Naval Operations,” and the desig-

nation of high-threat areas is a matter reserved for

Chairman of the Joint Chiefs of Staff, which is the highest

level of military command short of the President.” Accord-

ingly, I find that the decision to require anthrax vaccina-

tion bore directly on military operations, required special

expertise, and is not subject to Board review. See Jacobs v.

* Under applicable regulations the agency was authorized to

vaccinate civilians who had been designated “emergency essential”

personnel. See IAF, Vol. 3, Tab 27, at 15; id., Vol. 2, Tab 20, at 8.

* Id., Tabs 16, 20.

” H.T., testimony of Cook.

* IAF, Vol. 2, Tab 22, Enclosure 4.

* Id., Vol. 1, Tab. 11, Appendix D; id., at subsection E2.1.3.

RIE

Gee

App. 23

Department of the Army, 62 M.S.P.R. 688, 692-93 (1994);

Mindes v. Seaman, 453 F.3d 197, 199-201 (5th Cir. 1971).

Nonetheless, in a case such as this, the Board may

inquire into whether the military requirement in question

was, in fact, a requirement of the position encumbered by

the appellant. Archer v. Department of the Army, 44

M.S.P.R. 427, 430 (1990); Bolineau v. Department of the

Army, 57 M.S.P.R. 244, 248 n.6 (1993). For reasons that

follow I find that it was, and that the authority to order

such vaccinations was clearly delineated in the applicable

regulations.

Under 5 C.F.R. § 339.205, agencies are authorized to

establish “immunization programs by written policies or

directives to safeguard the health of employees whose

work may subject them or others to significant health or

safety risks due to occupational or environmental exposure

or demands.” Jd. The Department of Defense (DoD) has

issued a written policy which provides for immunization

against biological weapons whenever DoD personnel are

expected to enter a “high threat aree ” defined as a “geo-

graphic area in the proximity of a nation or nations

considered to pose a potential biological threat to DoD

personnel by the Chairman of the Joint Chiefs of Staff in

consultation with the Commanders of the Unified Com-

mands and the Director, DIA.” The military departments,

including the Department of the Navy, have jointly issued

an instruction that implements this policy, and specifically

authorizes immunization against biological threats for all

“slert forces,” including “all Navy and Military Sealift

” Id.

App. 24

Command Ships (including civilian mariners).... ”” The

Department of the Navy also issued a further instruction

specific to anthrax, that authorizes mandatory vaccination

of “Federal civilian employees and other groups having

status equivalent to deployable forces serving under the

auspices of the [Department of the Navy],” and further

provides, “ ... [I]n certain instances, anthrax immuniza-

tion might be determined by the appropriate authority to

be a condition of [civilian] employment.” This, in turn,

was implemented within MSC by an order transmitted on

October 14, 1999, stating that “[t]he basic immunization

series for deployable Naval Forces, including anthrax, is a

requirement for all MSC CIVMARs unless medically

waived”; and that immunization was to begin immediately

for “personnel subject to deployment into high threat areas

for any length of time.”” Thus, I find that the agency had

full authority to order the appellant to submit to anthrax

vaccination, and immediate vaccination became a re-

quirement of the appellant’s CIVMAR position when

KILAUEA was ordered to land in Korea, which had been

designated a high-threat area. See Archer, 44 M.S.P.R. at

430.

The appellant also maintains that when he refused

the order, he was concerned that the vaccine might cause

an adverse reaction, and he had not received “any infor-

mation, training or briefing on the safety of the drug. ...”™

I find, however, that such information was available from

* Id., Appendix A, at 5, 9.

* Id., Appendix B, at G-1.

* Id., Appendix F, at 3.

* Id., Vol. 2, Tab 20, at 5.

Sanath te Facer BIg cath veges URN U RRND OY ADEN RE Delotta»

FOL TOS Pang Pewee AO I I SRO RT

“Tyne Papeete MIE eS ae aspera

App. 25

Chief Mate Dickerson and the MSO;” when the appellant

was first directed to take the vaccine, he was told to “ask

the MSO” if he had questions about it;” yet the appellant

never did so, despite having an additional week to consider

the matter.” Under the circumstances, I find that his

subjective fear of vaccination was not sufficient to excuse

his failure to obey a direct order. See Gomez, 63 M.S.P.R.

at 38-39, citing Haymore v. Department of the Navy, 9

M.S.P.R. 499, 504-505 (1982).

For all of the above reasons I conclude that the vacci-

nation orders were lawful, and the agency had a right to

have them obeyed. Thus, the charge of failure to obey a

direct order is sustained as to both specifications. Phillips,

878 F.2d at 373.

The appellant’s defense of harmful procedural

error is not sustained.

The appellant also contends that the agency commit-

ted harmful procedural error in the application of “DOD

directives and SECNAV instructions” pertinent to the

vaccination program, and in failing to adhere to “FDA

certification regulations.””

Harmful error cannot be presumed: The burden is on

the appellant to show that the agency committed an error

* H.T., testimony of Dickerson, Jensen; IAF, Vol. 2, Tab 22,

Exhibit 2.

* H.T., testimony of appellant.

* JAF, Vol. 2, Tabs 16, 18, 20.

App. 26

in the application of its procedures that is likely to have

caused the agency to reach a conclusion different from the

one it would have reached in the absence or cure of the

error. See 5 U.S.C. § 7701(c)2)A); 5 C.F.R. § 1201.56(c)(3);

Stephen v. Department of the Air Force, 47 M.S.P.R. 672,

681, 685 (1991).

The appellant contends that he “did not receive

information on the anthrax vaccine or the AVIP program

as required by” DOD and agency directives.” Assuming

that such a requirement exists, I find that it was not

violated in this case, because the appellant was told how

to obtain such information and failed to do so. He also

argues that the agency erred in failing to designate him as

“Emergency Essential Personnel” (EEP), because the only

civilians who may properly be vaccinated for anthrax are

EEP.” It is undisputed that MSC has not designated its

CIVMARs as EEP,” and a DoD memorandum dated

March 30, 1999, directed immediate anthrax vaccination

for “all U.S. military personnel and Department of Defense

(DoD) emergency essential civilian employees and contrac-

tor personnel” assigned to high-threat areas, including the

Korean Peninsula.” However, it does not follow that

among civilian employees only EEP may be vaccinated,

* Id., Tab 16.

” Under DoD regulations issued in 1992, EEP are defined as

civilian employees who are “located overseas or ... would be trans-

ferred overseas during a crisis situation or . . . [are required] to deploy

or to perform temporary duty assignments overseas during a crisis in

support of a military operation.” DoD Directive 1404.10, Enclosure 2,

section E2.1.5., at LAF, Vol. 3, Tab 27, Appendix O.

* Id., Vol. 1, Tab 11, at 12.

” Agency File, Subtab 4j, Exhibit F.

App. 27

and others may not, even though they are deployed to

high-threat areas. The memorandum in question says no

such thing, nor does it invalidate the DoD instructions

cited above, that specifically authorize anthrax vaccination

of CIVMARs.® I therefore find that the appellant has not

shown error in this regard.

The appellant also contends that he “was entitled to a

medical exemption from the [vaccination] program” based

on his medical history of asbestosis and exposure to Agent

Orange, and the agency erred in failing to grant one.” The

appellant did not formally request a waiver at the time he

refused the vaccination order. His request was not made

until months later, after the agency had proposed his

removal, and indeed, after it had issued the first of two

decisions removing him from the position. When he re-

quested a waiver, the appellant rescinded its decision

letter and invited him to provide medical evidence to

substantiate his request.” Two weeks later he submitted a

summary evaluation from an emergency room physician

who apparently saw him just once, after the decision was

issued.” Nonetheless, Force Medical Officer Captain John

Rowe, M.D., took the request seriously, and researched

whether asbestosis or Agent Orange exposure might

increase one’s sensitivity to the vaccine; however, he could

find nothing to substantiate this, either in the medical

literature or in consultation with others knowledgeable in

* IAF, Vol. 1, Tab 11, Appendix A, at 5, 9.

* Agency File, Subtab 4j, Exhibit F. Also see, e.g., LAF, Vol. 1, Tab

11, Appendix A, at 4 (typical waiver provision).

* H_T., testimony of appellant; Agency File, Subtabs 4b, 4h, 4i.

* Id., Subtab 4f.

App. 28

the field. Accordingly, Dr. Rowe advised Mr. Countryman

that no exemption was warranted.” I therefore find that

the appellant failed to show that the agency erred by

denying him a medical exemption. Jd.

With regard to “FDA certification regulations,” the

appellant maintains that the anthrax “vaccine as formu-

lated in November 1999 ... is an ‘experimental drug,’ or

was used for unapproved purposes,” and the agency

therefore erred in ordering him to take it without his

“informed consent.” In response, the agency asserts that

the anthrax vaccine has been licensed since 1970.” The

appellant agrees, but asserts that the “license applies only

to the use for which the vaccine was licensed,” which was

to prevent anthrax contracted through skin exposure.” He

then assumes, without support in the record, that the

“biological warfare threat” in Korea involves exposure to

anthrax by inhalation rather than skin contact; and

asserts that since the vaccine has not been tested against

the former, its use in this case was “experimental.”

Neither the appellant nor the Board is in a position to

assess the exact nature of the threat in question. As stated

above, this is a military question which is beyond our ken.

” H.T., testimony of Rowe; Agency File, Subtabs 4c through 4h.

Although the appellant’s emergency room physician was approved to

testify as a witness, he failed to appear at hearing without good cause;

thus, he was not heard. H.T., remarks of administrative judge prior to

closing arguments.

* IAF, Vol. 1, Tab 11, “Motion to Limit Issues, etc.,” at 5-6, citing

O’Neil v. Secretary of the Navy, 76 F.Supp.2d 641, 645 (W.D.Pa.1999).

* IAF, Vol. 2, Tab 20, at 3.

“ Id., at 4.

App. 29

See Jacobs, 62 M.S.P.R. at 692-93. I also am not. convinced

by his analysis that a military command may not, under

appropriate circumstances, order a civilian employee to

take an experimental vaccine in order to safeguard its

military forces, as well as his own life. Indeed, the Navy

regulation concerning vaccination against biological

weapons clearly contemplates such an occurrence.” Thus,

the appellant has not shown that the use of the anthrax

vaccine aboard USNS KILAUEA was unlicensed, or

otherwise violated requirements for “FDA certification.”

The appellant’s constitutional defenses are out-

side the scope of Board review in this case, and in

any event, they would not be sustained.

The appellant also maintains that his removal should

be reversed because in carrying out the vaccination pro-

gram, the agency violated his U.S. Constitutional rights to

equal protection, due process and privacy.”

With respect to equal protection, he alleges that the

agency “implemented the anthrax program in a discrimi-

natory manner,” in that it did not provide CIVMARs with

the “protections” provided under DoD regulations, which

allegedly prohibit anthrax vaccination of civilian employ-

ees except those designated as EEP; and because senior

officers on the USNS KILAUEA were allegedly excused

from the program because of their rank.“ He h#s produced

no evidence to support the latter assertion; indeed, the

“ Td., Vol. 1, Tab 11, Appendix A, Section F, subparagraph 49.5.

“ Id., Vol. 2, Tab 18, at 4.

* Id., Tab 20, at 6-7. -

App. 30

Master and Chief Mate hoth testified that they were

vaccinated for anthrax.“ With regard to the former, I have

found above that the provision for vaccinating EEP was

non-exclusive, and the applicable instructions specifically

authorize MSC to vaccinate CIVMARs.“ In a similar vein,

the appellant argues that the agency’s alleged violation of

DoD vaccination procedures also constituted a denial of

due process.“ Again, I find that MSC had full authority to

vaccinate CIVMARs, under DoD regulations and its own.

Finally, the appellant cites Roe v. Wade, 410 U.S. 113

(1973) for the proposition that the U.S. Constitution

guarantees federal employees a right to physical privacy,

which includes “a right to question and approve every

substance that will be introduced into [their] bodies.””

Assuming that this is correct, I find that he has not

established that this right is absolute, and may not be

balanced against the government’s strong, competing

interest in securing its military forces against attack; nor

has he shown that this presumed, constitutional right

outweighed the government’s interests in this case.

Moreover, in addressing each of these defenses I am

asked to inquire into the reasons for the agency’s decision

to vaccinate its CIVMARs. For example, to decide whether

the constitutional right to equal protection was violated, I

must determine whether there is a rational basis for the

agency’s decision to vaccinate some civilian employees but

“ H.T., testimony of Cook, Dickerson.

“ IAF, Vol. 1, Tab 11, Appendix A, at 5, 9.

“ Id., Vol. 2, tab 20, at 10-11.

" Id., at 12-13.

App. 31

not others.“ See, e.g., U.S. Railroad Retirement Board v.

Fritz, 449 U.S. 166, 175 (1980); Romer v. Evans, 517 US.

620, 631 (1996). As discussed above, I find that this

decision is a military one, requiring unique expertise. By

analogy to the Board’s case law relating to security clear-

ances, I find that the board may not address such argu-

ments, even where they are framed in constitutional

terms. Cf. Mitchell v. Department of the Navy, 43 M.S.P.R.

691, 694 (1990); Department of the Navy v. Egan, 484 U.S.

518, 530-31 (1988) (in an appeal under 5 U.S.C. § 7513

based on the denial or revocation of a security clearance,

the Board does not have authority to review the substance

of the underlying security clearance determination.)

Thus, I conclude that the appellant’s constitutional

defenses are outside the scope of Board’s review; and in

any event, if I were to reach them, they would not be

sustained.

The appellant’s claim of regulatory violation, and

de facto defense of illegal discrimination on the

basis of disability, are not sustained.

The appellant also alleges that “the agency failed to

provide an accommodation under 5 C.F.R. § 339.204,"

which provides: “Agencies must waive a medical standard

or physical requirement established under this part when

“ I note that this would not be difficult, in light of the fact that,

unlike civilian employees in general, CIVMARs serve beside uniformed

personnel, aboard Navy support vessels that accompany warships in

high-risk areas, and they may come under attack by biological weapons.

H.T., testimony of Cook.

“ IAF, Vol. 5, Tab 15, at 3.

App. 32

there is sufficient evidence that an applicant or employee;

with or without reasonable accommodation, can perform

the essential duties of the position, etc.” Id.

I find that if this regulation is to apply, the appellant

must show that he is a qualified person with disabilities,

who is entitled to such accommodation under 29 C.F.R.

§ 1614.203. Thus, I treat this argument as a de facto

defense of illegal discrimination on the basis of disability;

i.e., a claim that the agency failed to reasonably accommo-

date his medical conditions of asbestosis and Agent Or-

ange exposure, when it disciplined him for refusing the

anthrax vaccine regardless of those conditions.

The elements of a prima facie case of disability dis-

crimination generally include: A showing that the appel-

lant is a disabled person and the action appealed was

based on his disability; and, to the extent possible, an

articulation of a reasonable accommodation under which

the appellant believes that he could perform the essential

duties of his position or of a vacant position to which he

could be reassigned. See Spencer v. Department of the

Navy, 73 M.S.P.R. 15, 24-25 (1997).

Here, I find that the medical evidence fails to estab-

lish that the appellant suffers from a disability that would

entitle him to accommodation. Neither his doctor’s re-

port,” his own testimony, nor that of the Force Medical

Officer” establish that his claimed asbestosis and Agent

Orange exposure substantially limited his work in general,

” Agency File, Subtab 4f.

* H.T., appellant, Rowe.

App. 33

or any other major life activity. 29 C.F.R.

§§ 1614.203(a)(1), (a)(3); Clark, 74 M.S.P.R. at 559. Ac-

cordingly, I sustain neither the claimed violation of 5

C.F.R. § 339.204, nor his de facto defense of disability

discrimination.

The agency has established that its decision to

impose removal was within tolerable limits of

reasonableness under the circumstances of this

case.

With regard to penalty, the agency must first show

that “nexus” exists; i.e., that there is a clear and direct

relationship between the sustained charges and either the

employee’s ability to accomplish his or her duties satisfac-

torily, or some other legitimate government interest. See

Merritt v. Department of Justice, 6 M.S.P.R. 585, 596

(1981), modified, Kruger v. Department of Justice, 32

M.S.P.R. 71, 75 n.2 (1987). There is no doubt that an

employee’s deliberate refusal to follow supervisory instruc-

tions constitutes serious misconduct that warrants disci-

pline. Redfearn v. Department of Labor, 58 M.S.P.R. 307,

316 (1993). Accordingly, I find that the agency has estab-

lished a nexus between the appellant’s misconduct and the

efficiency of the service, by preponderant evidence.

The Board will review an agency-imposed penalty only

to determine whether the agency considered all of the

relevant factors and exercised management discretion

within tolerable limits of reasonableness. Douglas, 5

M.S.P.R. at 306. Where, as here, all of the agency's

charges are sustained, the agency’s penalty determination

is entitled to deference and may be reduced only to the

extent that it exceeds the maximum reasonable penalty

App. 34

under the circumstances. LaChance v. Devall, 178 F.3d

1246, 1260 (Fed.Cir.1999).

Record evidence establishes that deciding official

Gregg Countryman considered potentially mitigating

factors, including the appellant’s relatively long service,

lack of prior discipline, good work performance, his as-

serted lack of information while aboard ship, and his

claimed medical conditions. Preponderant evidence also

shows, and I find, that a medical exemption was consid-

ered and rejected on reasonable grounds before the re-

moval was carried out.”

The deciding official also considered aggravating

factors including, first and foremost, the nature and

seriousness of the appellant’s misconduct. Mr. Country-

man testified that not only did the appellant refuse to

accept the vaccine as charged, he indicated during the

reply process that he would continue to do so in the fu-

ture.” The appellant confirmed this at hearing, testifying

that it was not for lack of medical guidance that he refused

the vaccine: Rather, he had decided not to take it in any

event, and still would not do so as of the date of hearing.”

Mr. Countryman testified further that he considered

reassigning the appellant, but all CIVMAR positions

require anthrax vaccination; moreover, the appellant is

in the excepted service, whereas all of the agency's

“ Id., testimony of Countryman, Rowe; Agency File, Tabs 4b

through 4h.

* H.T., testimony of Countryman.

“ Id., testimony of appellant on examination by administrative

judge.

App. 35

non-CIVMAR positions are in the competitive service, thus

precluding a non-competitive reassignment.”

Mr. Countryman also testified that if he were to

suspend the appellant and send him back to sea, this

would simply invite repetition of the same problem the

next time the ship entered a high-risk area. For this

reason, Mr. Countryman testified, out of twenty-nine

similar cases that he has decided, all who continued to

refuse vaccination were either removed or resigned. Only

where the employee subsequently agreed to take the

vaccine was the penalty mitigated, from removal to a

fourteen-day suspension. He testified further that had the

appellant agreed to take the vaccine, he would have done

the same thing in this case.

Based on the foregoing, I conclude that Mr. Country-

man considered the relevant factors and exercised his

discretion within tolerable limits of reasonableness.

Douglas, 5 M.S.P.R. at 306. Under the circumstances, I

cannot find that his choice of penalty was so excessive as

to be an abuse of discretion, or that it exceeds the maxi-

mum reasonable penalty under the circumstances. Cf

Bolineau, 57 M.S.P.R. at 247-48; Johnson, et al. v. De-

partment of Health & Human Services, MSPB Docket

Number DE-0752-99-0219-I-1 (August 23, 2000) (removal

affirmed where the agency showed that no lesser action

would satisfy a legal mandate.) Thus, I affirm the agency's

action. LaChance, 178 F.3d at 1260.

“ Id., testimony of Countryman.

* Id.

App. 36

DECISION

The agency’s action is AFFIRMED.

FOR THE BOARD:

/s/ Philip D. Reed

Philip D. Reed

Administrative Judge

NOTICE TO PARTIES

CONCERNING SETTLEMENT

The date that this initial decision becomes final,

which is set forth below, is the last day that the adminis-

trative judge may vacate the initial decision in order to

accept a settlement agreement into the record. See 5

C.F.R. § 1201.112(a)(5).

NOTICE TO APPELLANT

This initial decision will become final on October 6,

2000, unless a petition for review is filed by that date or

the Board reopens the case on its own motion. This is an

important date because it is usually the last day on which

you can file a petition for review with the board. However,

if this initial decision is received by you more than 5 days

after the date of issuance, you may file a petition for

review within 30 days after the date you actually receive

the initial decision. The date on which the initial decision

becomes final also controls when you can file a petition for

review with the Equal Employment Opportunity Commis-

sion (EEOC) or with a federal court. The paragraphs that

follow tell you how and when to file with the Board, the

EEOC, or the federal courts. These instructions are

App. 37

important because if you wish to file a petition, you must

file it within the proper time period.

App. 38

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE

MICHAEL R. TESTMAN, DOCKET NUMBER

Appellant, SF-0752-00-0451-I-1

mi DATE: September 5, 2000

DEPARTMENT OF THE

NAVY,

Agency.

Tim S. McClain, Esquire, Principi & McClain, La

Jolla, California, for the appellant.

Sandra Patterson-Jackson, Esquire, Virginia Beach,

Virginia, for the agency.

BEFORE

Philip D. Reed

Administrative Judge

INITIAL DECISION

INTRODUCTION

The appellant timely appealed the agency’s action

that removed him from the excepted service position of

Ordinary Seaman. He is a preference-eligible who occu-

pied the same or similar position for more than one year,

and is therefore an “employee” as defined in 5 U.S.C.

§ 7511(a)(1)(B). The Board has jurisdiction under 5 U.S.C.

' Initial Appeal File (LAF), Vol. 1, Tab 1; id., Tab 5 (“Agency File”),

Subtabs 1, 4a; Official Hearing Tapes (H.T.), testimony of appellant.

acne i niet ao naan aca

App. 39

§§ 7513(d) and 7701(a). A hearing was held on August 17,

2000.

For the reasons explained below, the agency’s action is

AFFIRMED.

ANALYSIS AND FINDINGS

At the time of his removal the appellant had been

employed by the agency's Military Sealift Command

(MSC) for approximately two and one half years with no

prior discipline and a record of satisfactory or better

performance. He also served for just over ten years as a

uniformed member of the United States Navy, for a total

of approximately twelve and one-half years of combined

federal service.”

On December 20, 1999, the agency proposed his

removal on a single charge of “failure to obey a direct order

to receive mandatory injections of an anthrax immuniza-

tion vaccine,” supported by two specifications: (1) “On 16

November 1999, while aboard USNS KILAUEA (TAE 26),

you were scheduled to receive an injection of the anthrax

vaccine. you refused to be vaccinated with the anthrax

vaccine”; and (2) “Captain J.A. Cook, Master, USNS

KILAUEA (TAE 26), gave you a direct order to be vacci-

nated, and advised you that failure to obey the order was a

serious offense and would result in the initiation of re-

moval procedures. You again refused.”*

? 117. testimony of appellant; IAF, Vol. 1, Tab 1, blocks 21, 22.

* Agency File, Subtab 4m.

App. 40

In reply to the proposed removal, the appellant

acknowledged that he had been ordered to report for the

vaccination in question, and refused to do so. He con-

tended, however, that he should not be disciplined because

the vaccination program was illegal as applied to himself,

and also violated his constitutional right to equal protec-

tion under the law.‘ In addition, he requested waiver of

the vaccination requirement on medical grounds, and

accommodation of an alleged medical condition consisting

of an adverse reaction to prior vaccinations against an-

thrax.° Having considered these arguments, the agency

carried out his removal effective April 15, 2000.°

On appeal, the appellant continues to maintain that

the vaccination order was illegal, and his refusal to obey

that order was obtained by “duress.” He also raises af-

firmative defenses including alleged violations of his

procedural and constitutional rights, and a de facto claim

of illegal discrimination on the basis of disability.’

The agency has proven its charge of failure to obey

a direct order by preponderant evidence.

The agency bears the burden of proving its charge by

preponderant evidence. 5 C.F.R. § 1201.56(a). Here, I find

| that “failure to obey a direct order” is tantamount to a

charge of insubordination, which has been defined as “a

willful and intentional refusal ... to obey an authorized

* Id., Subtab 4j.

* Id., Subtabs 4d through 4g.

* Id., Subtabs 4a, 4b.

” IAF, Vol. 2, Tab 15.

—

App. 41

order of a superior officer which the officer is entitled to

have obeyed.” Phillips v. General Services Administration,

878 F.2d 370, 373 (Fed. Cir. 1989) (Emphasis omitted.)

Thus, the agency must prove intent in order to support its

charge. Id.

The KILAUEA is an ammunition ship, operated by

MSC and manned by both civilian mariners (CIVMARs)

and military personnel.’ At the time in question it was

providing direct support for warships of the Navy’s 7th

Fleet, operating in the western Pacific Ocean. Its primary

mission was to carry munitions for use aboard the aircraft

carrier USS KITTY HAWK.’ In approximately October

1999 the KILAUEA was ordered to proceed to a port in

Korea to undergo a major overhaul. Insofar as Korea was

considered a high-risk area for biological weapons, includ-

ing anthrax, the Commander of MSC directed that all

members of the crew be vaccinated against anthrax.”

According to the both the appellant and another

CIVMAR, Able Seaman Joseph Mazares,” the following

* The ship’s medical officer estimated that at the time in question

the crew of the KILAUEA numbered approximately 100 persons,

approximately 80% of whom were civilians and 20% were uniformed

service members. H.T., testimony of Jensen.

* Id., testimony of Cook.

*° Id.

'' Mr. Mazares also refused the vaccine, and was removed from his

position on that basis. For purposes of administrative economy his

Board appeal, Docket No. SF-0752-00-0445-I-1, was heard concurrently

with this one. LAF, Vol. 1, Tab 3; Vol. 2, Tab 15; H.T., opening remarks

of administrative judge. To save unnecessary duplication, I ordered

each party to consolidate its exhibits for both appeals in filings to be

placed only in the Mazares initial appeal file, Docket No. SF-0752-00-

(Continued on following page)

App. 42

events ensued. On November 8, 1999, they and the rest of

the Deck Department were told by the ship’s First Officer

or “Chief Mate,” Edward Dickerson, to go to the office of

the ship’s Medical Service Officer (MSO), Thomas Jensen,

and receive the vaccine, Mr. Mazares for the first time and

the appellant for the third. Mr. Mazares testified further

that Chief Mate Dickerson said they were to go in “groups

of three,” if they had “questions, ask the MSO,” and if they

“refused” then “discipline” would ensue. Mr. Mazares also

testified that he went to see MSO Jensen as ordered, but

told him that he was “not going to take the shot.” The

appellant testified that he told Chief Mate Dickerson, “I

don’t want to take the shot,” and never went to see the

MSO.”

Both testified further that the next day, Chief Mate

Dickerson summoned them to a meeting with himself and

the Master of the vessel, Captain Jeffrey Cook, in Captain

Cook’s office. At that time, Captain Cook told them that

the matter was “out of [his] hands, [he] was merely the

messenger,” and had been “ordered to issue [them] an

order” to take the vaccine, and “those who refuse will be

charged with violating an order.” Captain Cook also told

them that they would “meet here again in one week,” and

“if [they] refuse[d]” at that point, he would “have no choice.

I have my orders too,” he reportedly stated.”

0445-I-1 (“MAF”). See LAF, Vol. 2, Tab 15, at 1. Accordingly, the records

of the two appeals are hereby consolidated.

* Id., testimony of appellant, Mazares.

" Id., testimony of Mazares.

App. 43

For the next week Chief Mate Dickerson repeatedly

urged both sailors, in a good-natured but “emphatic”

manner, to take the vaccine. At the end of the week he

approached them and one other civilian who had also

refused and said, grinning, “You guys aren’t going to take

the shot, are you?” All three stated that they would not.

Chief Mate Dickerson then told them that he was “Sorry,”

but he had orders from Captain Cook to “sign [them] off”

the ship. He thanked them for their good work, and said

that both he and the Captain “hoped to sail with [them]

again,” adding, “[Captain Cook] thinks this is a bunch of

B.S.”

Chief Mate Dickerson and Captain Cook confirmed

this account in all important respects.” I therefore find

that the agency has shown by preponderant evidence that

the appellant was directed by Chief Mate Dickerson, and

then by Captain Cook, to go to the MSO’s office and be

vaccinated for anthrax, and in each instance he intention-

ally refused to do so. I therefore conclude that on each

occasion the appellant willfully and intentionally refused

the order of a superior officer. See Phillips, 878 F.2d at

373.

“ Id., testimony of appellant, Mazares.

Id., testimony of Dickerson, Cook. Both recalled that the meeting

in the Captain’s office took place at the end of the one-week grace

period, rather than the beginning. Id. This is contrary to a contempora-

neous e-mail message from Captain Cook, which supports the chronol-

ogy given by the appellant and Mr. Mazares. MAF, Vol. 2, Tab 22,

Exhibit 1, at 3-4. In any event, I find that the precise dates and order of

events are immaterial, insofar as the events themselves are admitted.

See Aiu v. Department of Justice, 70 M.S.P.R. 509, 519, affd, 98 F.3d

1359 (Fed.Cir.1996) (Table) (agency need only prove the essence of its

charge, not every factual specification).

App. 44

It remains to be seen, however, whether the vaccina-

tion order was “authorized.” Jd. The appellant maintains

that it was not because, with one exception not applicable

here,” MSC allegedly lacked authority to order its civilian

mariners to take the anthrax vaccine. To put it another

way, he maintains that his insubordination resulted from

an unlawful order, and was therefore procured by “du-

ress.” See, e.g., Gomez v. Department of Agriculture, 63

M.S.P.R. 36, 38-39 (1994).

As a preliminary matter, I find that the board lacks

authority to review the underlying reasons for the vaccina-

tion order, or rule on its merits. Captain Cook testified

without contradiction that at the time in question, Korea

had been designated a high-threat area for biological

weapons, and in the expectation that KILAUEA would

soon land there, he was ordered by the Commander of

MSC to immunize his crew against anthrax.” Record

evidence establishes that the Commander of MSC derives

authority to make such an order from the Secretary of the

Navy and the Chief of Naval Operations,” and the desig-

nation of high-threat areas is a matter reserved for

Chairman of the Joint Chiefs of Staff, which is the highest

“ Under applicable regulations the agency was authorized to

vaccinate civilians who, unlike the appellant, had been designated

“emergency essential” personnel. See MAF, Vol. 3, Tab 27, at 15: id.,

Vol. 2, Tab 20, at 8.

" Id., Tabs 16, 20.

* H.T., testimony of Cook.

* MAF, Vol. 2, Tab 22, Enclosure 4.

App. 45

level of military command short of the President.” Accord-

ingly, I find that the decision to require anthrax vaccina-

tion bore directly on military operations, required special

expertise, and is not subject to Board review. See Jacobs v.

Department of the Army, 62 M.S.P.R. 688, 692-93 (1994);

Mindes v. Seaman, 453 F.3d 197, 199-201 (5th Cir. 1971).

Nonetheless, in a case such as this, the Board may

inquire into whether the military requirement in question

was, in fact, made a requirement of the position encum-

bered by the appellant. Archer v. Department of the Army,

44 M.S.P.R. 427, 430 (1990); Boulineau v. Department of

the Army, 57 M.S.P.R. 244, 248 n.6 (1993). For reasons

that follow I find that it was, and that the authority to

order such vaccinations was clearly delineated in the

applicable regulations.

Under 5 C.F.R. § 339.205, agencies are authorized to

establish “immunization programs by written policies or

directives to safeguard the health of employees whose

work may subject them or others to significant health or

safety risks due to occupational or environmental exposure

or demands.” Jd. The Department of Defense (DoD) has

issued a written policy which provides for immunization

against biological weapons whenever DoD personnel are

expected to enter a “high threat area,” defined as a “geo-

graphic area in the proximity of a nation or nations

considered to pose a potential biological threat to DoD

personnel by the Chairman of the Joint Chiefs of Staff

in consultation with the Commanders of the Unified

® Id., Vol. 1, Tab 11, Appendix D; id., at subsection E2.1.3.

App. 46

Commands and the Director, DIA.”” The military depart-

ments, including the Department of the Navy, have jointly

issued an instruction that implements this policy, and

specifically authorizes immunization against biological

threats for all “alert forces,” including “all Navy and

Military Sealift Command Ships (including civilian mari-

ners).... ”” The Department of the Navy also issued a

further instruction specific to anthrax, that authorizes

mandatory vaccination of “Federal civilian employees and

other groups having status equivalent to deployable forces

serving under the auspices of the [Department of the

Navy],” and further provides: “ ... [I]n certain instances,

anthrax immunization might be determined by the appro-

priate authority to be a condition of [civilian] employ-

ment.” This, in turn, was implemented within MSC by an

order transmitted on October 14, 1999, stating that “[t]he

basic immunization series for deployable Naval Forces,

including anthrax, is a requirement for all MSC CIVMARs

unless medically waived”; and that immunization was to

begin immediately for “personnel subject to deployment

into high threat areas for any length of time.” Thus, I

find that the agency had full authority to order the appel-

lant to submit to anthrax vaccination, and immediate

vaccination became a requirement of the appellant’s

CIVMAR position when KILAUEA was ordered to land in

Korea, which had been designated a high-threat area. See

Archer, 44 M.S.P.R. at 430.

* Id.

* Id., Appendix A, at 5, 9.

* Id., Appendix B, at G-1.

* Id., Appendix F, at 3.

App. 47

The appellant also maintains that when he refused

the order, he was concerned for his health based on un-

pleasant side effects he had experienced when he took the

vaccine previously; and he had not received “any informa-

tion, training or briefing on the safety of the drug. . .. tas

find, however, that such information was available from

Chief Mate Dickerson and the MSO;” when the appellant

was first directed to take the vaccine, he was told to “ask

the MSO” if he had questions about it;” yet the appellant

never did so, despite having an additional week to consider

the matter.“ Under the circumstances, I find that his

subjective fear of vaccination was not sufficient to excuse

his failure to obey a direct order. See Gomez, 63 M.S.P.R.

at 38-39, citing Haymore v. Department of the Navy, 9

M.S.P.R. 499, 504-505 (1982).

For all of the above reasons I conclude that the vacci-

nation orders were lawful, and the agency had a right to

have them obeyed, Thus, the charge of failure to obey a

direct order is sustained as to both specifications. Phillips,

878 F.2d at 373.

The appellant’s defense of harmful procedural error

is not sustained.

The appellant also contends that the agency commit-

ted harmful procedural error in the application of “DOD

* Id., Vol. 2, Tab 20, at 5.

* HT., testimony of Dickerson, Jensen; MAF, Vol. 2, Tab 22,

Exhibit 2.

*" H._T., testimony of Mazares.

* Id., testimony of appellant.

App. 48

directives and SECNAV instructions” pertinent to the

vaccination program, and in failing to adhere to “FDA

certification regulations.””

Harmful error cannot be presumed: The burden is on

the appellant to show that the agency committed an error

in the application of its procedures that is likely to have

caused the agency to reach a conclusion different from the

one it would have reached in the absence or cure of the

error. See 5 U.S.C. § 7701(c)(2)(A); 5 C.F.R. § 1201.56(c)(3);

Stephen v. Department of the Air Force, 47 M.S.P.R. 672,

685 (1991).

Claimed Lack of Information; Failure to Designate

as EEP

The appellant contends that he “did not receive

information on the anthrax vaccine or the AVIP program

as required by” DOD and agency directives.” Assuming

that such a requirement exists, I find that it was not

violated in this case, because the appellant was told how

to obtain such information and failed to do so. He also

argues that the agency erred in failing to designate him as

“Emergency Essential Personnel” (EEP), because the only

civilians who may properly be vaccinated for anthrax are

EEP.” It is undisputed that MSC has not designated its

* MAF, Vol. 2, Tabs 16, 18, 20.

* Id., Tab 16.

* Under DoD regulations issued in 1991, EEP are defined as

civilian employees who are “located overseas or ... would be trans-

ferred overseas during a crisis situation or . .. [are required] to deploy

or to perform temporary duty assignments overseas during a crisis in

(Continued on following page)

App. 49

CIVMARs as EEP,” and a DoD memorandum dated

March 30, 1999, directed immediate anthrax vaccination

for “all U.S. military personnel and Department of Defense

(DoD) emergency essential civilian employees and contrac-

tor personnel” assigned to high-threat areas, including the

Korean Peninsula.“ However, it does not follow that

among civilian employees only EEP may be vaccinated,

and others may not, even though they are deployed to

high-threat areas. The memorandum in question says no

such thing, nor does it invalidate the DoD instructions

cited above. that specifically authorize anthrax vaccination

of CIVMARs.” I therefore find that the appellant has not

shown error in this regard.

Medical Waiver

The appellant also contends that he “was entitled to a

medical exemption from the [vaccination] program”

because he suffered adverse reactions to two previous

vaccinations against anthrax, and the agency erred in

failing to grant one.”

The appellant first received the anthrax vaccine

earlier in 1999 when the KILAUEA was deployed to

support of a military operation.” DoD Directive 1404.10, Enclosure 2,

section E2.1.5., at MAF, Vol. 3, Tab 27, Appendix O.

* Id., Vol. 1, Tab 11, at 12.

* Agency File, Subtab 4j, Exhibit F.

“ MAF, Vol. 1, Tab 11, Appendix A, at 5, 9.

* Agency File, Subtab 4j, Exhibit F. Also see, e.g.,, MAF, Vol. 1,

Tab 11, Appendix A, at 4 (typical waiver provision).

App. 50

another high-threat area, in the Middle East.” He testified

that a few days after the first injection he began to experi-

ence severe headaches, joint pain, and swelling of the

hands and feet. At that time, he testified, he told MSO

Jensen that he was “experiencing pain,” and Mr. Jensen

said only, “Don’t worry,” and advised him to “drink plenty

of water.” Two weeks later he received a second vaccina-

tion and experienced similar symptoms; whereupon MSO

Jensen told him that the “only thing he [Mr. Jensen] could

do was put it in [the appellant’s] medical record.”

Throughout these events the appellant continued to do his

work without interruption.”

Later that year, when the vaccination order in ques-

tion was issued, the appellant did not formally request a

waiver. He simply refused the order and returned to the

United States to face the consequences. His waiver request

was not made until after the agency had proposed his

removal, and indeed, after it had issued the first of two

decisions removing him from the position. When the

request was made, the agency rescinded its decision letter

and invited the appellant to provide medical evidence to

substantiate his request.” Two weeks later he submitted a

summary evaluation from an emergency room physician

who apparently saw him just once, after the decision was

issued. The report recounted his earlier reactions to the

vaccine, which the doctor had not observed, and based

* H.T., testimony of appellant. Mr. Mazares did not join the ship

until September 1999, and thereby avoided this earlier round of

vaccinations. Id. testimony of Mazares.

* H.T., testimony of appellant.

* Id.; Agency File, Subtabs 4b, 4h, 4i.

App. 51

solely on his self-report recommended that a wavier be

granted.” Force Medical Officer Captain John Rowe, M.D.,

reviewed the appellant’s on-board medical file and found

no record of the claimed reaction. On this evidence, Dr.

Rowe found it “difficult” to confirm or assess the severity

of the alleged symptoms, and therefore advised Mr. Coun-

tryman that the appellant had not shown that he was

eligible for a waiver.”

The appellant maintains that MSO Jensen erred by

failing to record his earlier reaction to the vaccine in his

medical record, and based on that reaction, he should have

been granted a temporary waiver of the vaccination

requirement pending further medical assessment ashore.”

Both MSO Jensen and Dr. Rowe testified that had they

known of this claim at the time of the vaccination order in

question, they would have granted the appellant a tempo-

rary exemption and removed him from the ship for further

evaluation.”

The fact remains that when the appellant was again

ordered to take the vaccine he neither requested a waiver,

nor did he even report to the MSO as he had been directed

to do. Moreover, he eventually had an opportunity to

establish eligibility for a permanent waiver, prior to his

* Id., Subtab 4f.

“ HT, testimony of Rowe; Agency File, Subtabs 4c through 4h.

Although the appellant’s emergency room physician was approved to

testify as a witness, he failed to appear at hearing without good cause;

thus, he was not heard. H.T. remarks of administrative judge prior to

closing arguments.

“ Id., testimony of appellant.

“ JId., testimony of Jensen, Rowe.

App. 52

removal. Dr. Rowe testified that his chance of doing so

would have been better had the MSO recorded his earlier

reports of headaches, etc.“ Still, based on Dr. Rowe’s

testimony at hearing, I am not convinced that this alone

would have changed the outcome. The medical evaluation

that the appellant gave Dr. Rowe was quite sketchy, and

seemed to have been obtained only as an afterthought, in

an effort to forestall the agency’s first removal decision. It

is also undisputed that the appellant’s claimed symptoms

were not so severe that they prevented him from working,

and it is unclear whether they were anything out of the

ordinary: MSO Jensen testified without contradiction that

“flue symptoms” are not unusual after taking the vaccine.“

Assuming that some degree of error occurred with

respect to recording and acting upon the appellant’s

earlier symptoms, I find that he has not shown that this

likely affected the outcome of his case before the agency.

He has not shown that it caused the offense itself, since no

waiver was requested until months after he refused the

vaccine; nor has he shown entitlement to a permanent

waiver on objective, medical grounds. For these reasons, I

conclude that he has not shown that the agency would

likely have made a different decision concerning his

removal, in the absence or cure of its presumed errors. See

5 U.S.C. § 7701(C)(2)(A); 5 C.F.R. § 1201.56(c)(3).

“ Id., testimony of Rowe.

“ Id., testimony of appellant, Jensen.

App. 53

FDA Certification

With regard to “FDA certification regulations,” the

appellant maintains that the anthrax “vaccine as formu-

lated in November 1999 ... is an ‘experimental drug,’ or

was used for unapproved purposes,” and the agency

therefore erred in ordering him to take it without his

“informed consent.” In response, the agency asserts that

the anthrax vaccine has been licensed since 1970.” The

appellant agrees, but asserts that the “license applies only

to the use for which the vaccine was licensed,” which was

to prevent anthrax contracted through skin exposure.” He

then assumes, without evidentiary support, that the

“biological warfare threat” in Korea involves exposure to

anthrax by inhalation rather than skin contact; and

asserts that since the vaccine has not been tested against

the former, its use in this case was “experimental.””’

Neither the appellant nor the Board is in a position to

assess the exact nature of the threat in question. As stated

above, this is a military question which is beyond our ken.

See Jacobs, 62 M.S.P.R. at 692-93. I also am not convinced

by his analysis that a military command may not, under

appropriate circumstances, order a civilian employee to

take an experimental vaccine in order to safeguard its

military forces, as well as the employee’s own life. Indeed,

the Navy regulation concerning vaccination against

* MAF, Vol. 1, Tab 11, “Motion to Limit Issues, etc.,” at 5-6, citing

O’Neil v. Secretary of the Navy, 76 F.Supp.2d 641, 645 (W.D.Pa.1999).

“ MAF, Vol. 2, Tab 20, at 3.

" Id., at 4.

App. 54

biological weapons clearly contemplates such an occur-

rence.“ Thus, the appellant has not shown that the use of

the anthrax vaccine aboard USNS KILAUEA was unli-

censed, or otherwise violated requirements for “FDA cert-

ification.”

The appellant’s constitutional defenses are out-

side the scope of Board review in this case, and in

any event, they would not be sustained.

The appellant also maintains that his removal should

be reversed because in carrying out the vaccination pro-

gram, the agency violated his U.S. Constitutional rights to

equal protection, due process and privacy.”

With respect to equal protection, he alleges that the

agency “implemented the anthrax program in a discrimi-

natory manner,” in that it did not provide CIVMARs with

the “protections” provided under DoD regulations, which

allegedly prohibit anthrax vaccination of civilian employ-

ees except those designated as EEP; and because senior

officers on the USNS KILAUEA were allegedly excused

from the program because of their rank.” He has produced

no evidence to support the latter assertion; indeed, the

Master and Chief Mate both testified that they were

vaccinated for anthrax.” With regard to the former, I have

found above that the provision for vaccinating EEP was

non-exclusive, and the applicable instructions specifically

“ Id., Vol. 1, Tab 11, Appendix A, Section F, subparagraph 49.5.

“ Id., Vol. 2, Tab 18, at 4.

* H.T., testimony of Cook, Dickerson.

App. 55

authorize MSC to vaccinate CIVMARs.” In a similar vein,

the appellant argues that the agency’s alleged violation of

DoD vaccination procedures also constituted a denial of

due process.” Again, I find that MSC had full authority to

vaccinate CIVMARs, under DoD regulations and its own.

Finally, the appellant cites Roe v. Wade, 410 U.S. 113

(1973) for the proposition that the U.S. Constitution

guarantees federal employees a right to physical privacy,

which includes “a right to question and approve every

substance that will be introduced into [their] bodies.”

Assuming that this is correct, I find that he has not

established that this right is absolute, and may not be

balanced against the government’s strong, competing

interest in securing its military forces against attack; nor

has he shown that this presumed, constitutional right

outweighed the government’s interests in this case.

Moreover, in addressing each of these defenses | am

asked to inquire into the reasons for the agency’s decision

to vaccinate its CIVMARs. For example, to decide whether

the constitutional right to equal protection was violated, I

must determine whether there is a rational basis for the

agency’s decision to vaccinate some civilian employees but

not others.” See, e.g., U.S. Railroad Retirement Board v.

® MAF, Vol. 1, Tab 11, Appendix A, at 5, 9.

® Id., Vol. 2, Tab 20, at 10-11.

“ Id., at 12-13.

% 1 note that this would not be difficult, in light of the fact that,

unlike civilian employees in general, CIVMARs serve beside uniformed

personnel, aboard Navy support vessels that accompany warships in

high-risk areas, and they may come under attack by biological weapons.

H.T., testimony of Cook.

App. 56

Fritz, 449 U.S. 166, 175 (1980); Romer v. Evans, 517 U.S.

620, 613 (1996). As discussed above, I find that this

decision is a military one, requiring unique expertise. By

analogy to the Board’s case law relating to security clear-

ances, I find that the Board may not address such argu-

ments, even where they are framed in constitutional —

terms. Cf. Mitchell v. Department of the Navy, 43 M.S.P.R.

691, 694 (1990); Department of the Navy v. Egan, 484 U.S.

518, 530-31 (1988) (in an appeal under 5 U.S.C. § 7513

based on the denial or revocation of a security clearance,

the Board does not have authority to review the substance

of the underlying security clearance determination.)

Thus, I conclude that the appellant’s constitutional

defenses are outside the scope of Board’s review; and in

any event, if I were to reach them, they would not be

sustained.

The appellant’s claim of regulatory violation, and

de facto defense of illegal discrimination on the

basis of disability, are not sustained.

The appellant also alleges that “the agency failed to

provide an accommodation under 5 C.F.R. § 339.204,”"

which provides: “Agencies must waive a medical standard

or physical requirement established under this part when

there is sufficient evidence that an applicant or employee,

with or without reasonable accommodation, can perform

the essential duties of the position, etc.” Id.

“* MAF, Vol. 5, Tab 15, at 3.

App. 57

I find that if this regulation is to apply, the appellant

must show that he is a qualified person with disabilities,

who is entitled to such accommodation under 29 C.F.R.

§ 1614.203. Thus, I treat this argument as a de facto

defense of illegal discrimination on the basis of disability;

i.e., a claim that the agency failed to reasonably accommo-

date his allegedly adverse reaction to the anthrax vaccine,

when it disciplined him for refusing further vaccination.

The elements of a prima facie case of disability dis-

crimination generally include: A showing that the appel-

lant is a disabled person and the action appealed was

based on his disability; and, to the extent possible, an

articulation of a reasonable accommodation under which

the appellant believes that he could perform the essential

duties of his position or of a vacant position to which he

could be reassigned. See Spencer v. Department of the

Navy, 73 M.S.P.R. 15, 24-25 (1997).

Here, I find that the medical evidence fails to estab-

lish that the appellant suffers from a disability that would

entitle him to accommodation. Neither his doctor’s re-

port,” his own testimony, nor that of the Force Medical

Officer™ establish that his claimed reaction to the vaccine

substantially limited his work in general, or any other

major life activity. 29 C.F.R. §§ 1614.203(a)(1), (a3);

Clark, 74 M.S.P.R. at 559. The fact that his reaction

arguably makes it unable for him to work aboard ships in

high-risk areas does not establish that he is disabled,

* Agency File, Subtab 4f.

* H.T., appellant, Rowe.

——— ; a

App. 58

because it does not foreclose generally the type of employ-

ment involved. See Groshans v. Department of the Navy,

67 M.S.P.R. 629, 635-37 (1995). Accordingly, I sustain

neither the claimed violation of 5 C.F.R. § 339.204, nor his

de facto defense of disability discrimination.

The agency has established that its decision to

impose removal was within tolerable limits of

reasonableness under the circumstances of this

case.

With regard to penalty, the agency must first show

that “nexus” exists; i.e., that there is a clear and direct

relationship between the sustained charges and either the

employee’s ability to accomplish his or her duties satisfac-

torily, or some other legitimate government interest. See

Merritt v. Department of Justice, 6 M.S.P.R. 585, 596

(1981), modified Kruger v. Department of Justice, 32

M.S.P.R. 71, 75 n.2 (1987). There is no doubt that an

employee’s deliberate refusal to follow supervisory instruc-

tions constitutes serious misconduct that warrants disci-

pline. Redfearn v. Department of Labor, 58 M.S.P.R. 307,

316 (1993). Accordingly, I find that the agency has estab-

lished a nexus between the appellant’s misconduct and the

efficiency of the service, by preponderant evidence.

The Board will review an agency-imposed penalty only

to determine whether the agency considered all of the

relevant factors and exercised management discretion

within tolerable limits of reasonableness. Douglas, 5

M.S.P.R. at 306. Where, as here, all of the agency's

charges are sustained, the agency’s penalty determination

is entitled to deference and may be reduced only to the

extent that it exceeds the maximum reasonable penalty

App. 59

under the circumstances. LaChance v. Devall, 178 F.3d

1246, 1260 (Fed.Cir.1999).

Record evidence establishes that deciding official

Gregg Countryman considered potentially mitigating

factors, including the appellant’s relatively long service,

lack of prior discipline, good work performance, his as-

serted lack of information while aboard ship, and his

claimed reaction to the vaccine. Preponderant evidence

also shows, and I find, that a medical exemption was

considered and rejected on reasonable grounds before the

removal was carried out.”

The deciding official also considered aggravating

factors including, first and foremost, the nature and

seriousness of the appellant’s misconduct. Mr. Country-

man testified that not only did the appellant refuse to

accept the vaccine as charged, he indicated during the

reply process that he would continue to do so in the fu-

ture.” The appellant confirmed this at hearing, testifying

that it was not for lack of medical guidance that he refused

the vaccine: Rather, he had decided not to take it in any

event, and still would not do so as of the date of hearing.”

Mr. Countryman testified further that he considered

reassigning the appellant, but all CIVMAR positions

require anthrax vaccination; moreover, the appellant is in

® Id., testimony of Countryman, Rowe; Agency File, Tabs 4b

through 4h.

“ Td., testimony of appellant on examination by administrative

judge.

App. 60

the excepted service, whereas all of the agency’ non-

CIVMAR positions are in the competitive service, thus

precluding a non-competitive reassignment.”

Mr. Countryman also testified that if he were to

suspend the appellant and send him back to sea, this

would simply invite repetition of the same problem the

next time the ship entered a high-risk area. For this

reason, Mr. Countryman testified, out of twenty-nine

similar cases that he has decided, all who continued to

refuse vaccination were either removed or resigned. Only

where the employee subsequently agreed to take the

vaccine was the penalty mitigated, from removal to a

fourteen-day suspension. He testified further that had the

appellant agreed to take the vaccine, he would have done

the same thing in this case.”

Based on the foregoing, I conclude that Mr. Country-

man considered the relevant factors and exercised his

discretion within tolerable limits of reasonableness.

Douglas, 5 M.S.P.R. at 306. Under the circumstances, I

cannot find that his choice of penalty was so excessive as

to be an abuse of discretion, or that it exceeds the maxi-

mum reasonable penalty under the circumstances. Cf.

Bolineau, 57 M.S.P.R. at 247-48; Johnson, et al. v. De-

partment of Health & Human Services, MSPB Docket No.

DE-0752-99-0219-I-1 (August 23, 2000) (removal affirmed

where the agency showed that no lesser action would

satisfy a legal mandate.) Thus, I affirm the agency’s

action. LaChance, 178 F.3d at 1260.

“ Id., testimony of Countryman.

* Id.

App. 61

DECISION

The agency’s action is AFFIRMED.

FOR THE BOARD: /s/ Philip D. Reed

Philip D. Reed

Administrative Judge

NOTICE TO PARTIES

CONCERNING SETTLEMENT

The date that this initial decision becomes final,

which is set forth below, is the last day that the adminis-

trative judge may vacate the initial decision in order to

accept a settlement agreement into the record. See 5

C.F.R. § 1201.112(a)(5).

App. 62

Department of Defense

DIRECTIVE

NUMBER 6205.3

November 26, 1993

ASD (NS&CP)

SUBJECT: DoD Immunization Program for Biological

Warfare Defense

References: (a) Title 10, United States Code

(b) DoD Instruction 6205.2, “Immunization Re-

quirements,” October 9, 1986

13/CG COMDTINST M6230.4D, “Immunizations and

Chemoprophylaxis,” November 7, 1988

(d) DoD Directive 5136.1, “Assistant Secretary of

Defense for Health Affairs,” December 2, 1992

(e) through (g), see enclosure 1

1. PURPOSE

This Directive:

1.1. Establishes policy, assigns responsibilities, and

prescribes procedures for members of the Department of

Defense against validated biological warfare threats, and

prioritization of research, development, testing, acquisi-

tion, and stockpiling of biological defense vaccines under

reference (a).

App. 63

1.2. Provides vaccination guidance that focuses exclu-

sively on defense against biological warfare threats and

complements immunization requirements for naturally

occurring endemic diseasé ‘threats outlined in references

(b) and (c).

1.3. Addresses peacetime and contingency requirements

for immunization against biological warfare threats

against U.S. personnel.

1.4. Designates the Secretary of the Army as the “DoD

Executive Agent” for the DoD Immunization Program for

Biological Warfare Defense.

1.5. Provides direction on levels of acquisition and

stockpiling of biological defense vaccines and prioritizes

research and development efforts in defending against

current and emerging biological warfare threats.

2. APPLICABILITY AND SCOPE

This Directive applies to:

2.1. The Office of the Secretary of Defense, the Military

Departments (including their National Guards), the

Chairman of the Joint Chiefs of Staff, the Unified Com-

mands, and the Defense Agencies (hereafter referred to

collectively as “the DoD Components”). The term “Military

Services,” as used herein, refers to the Army, the Navy,

the Air Force, and the Marine Corps.

2.2. Essential DoD civilian personnel, and personnel of

other Federal Departments, when assigned as part of the

U.S. Armed Forces.

App. 64

3. DEFINITIONS

Terms used in this Directive are defined in enclosure 2.

4. POLICY

It is DoD policy that:

4.1. For immunization, the following personnel, subject

to special exceptions approved by the Chairman of the

Joint Chiefs of Staff, should be immunized against vali-

dated biological warfare threat agents, for which suitable

vaccines are available, in sufficient time to develop immu-

nity before deployment to high-threat areas:

4.1.1. Personnel assigned to high-threat areas.

4.1.2. Personnel predesignated for immediate contin-

gency deployment (crisis response).

4.1.3. Personnel identified and scheduled for deployment

on an imminent or ongoing contingency operation to a

high-threat area.

4.2. For vaccine research, development, testing, evalua-

tion, acquisition, and stockpiling, efforts for the improve-

ment of existing vaccines and the development of new

vaccines against all validated biological warfare threat

agents shall be integrated and prioritized. The Depart-

ment of Defense shall develop a capability to acquire and

stockpile adequate quantities of vaccines to protect the

programmed force against all validated biological warfare

threats.

App. 65

5. RESPONSIBILITIES

5.1. The Under Secretary of Defense for Acquisition and

Technology shall ensure the coordination and integration

of the DoD Immunization Program for Biological Warfare

Defense with all acquisition-related elements of the DoD

Biological Defense Program.

5.2. The Under Secretary of Defense for Policy shall

review all facets of the DoD Immunization Program for

Biological Warfare Defense to ensure that it is consistent

with DoD policy and is adequately integrated into overall

DoD biological defense policies.

5.3. The Assistant Secretary of Defense for Health

Affairs shall:

5.3.1. Serve as the advisor to the Secretary of Defense as

in DoD Directive 5136.1 (reference (d)) on the DoD Immu-

nization Program for Biological Warfare Defense.

5.3.2. In consultation with the DoD Executive Agent, the

Secretaries of the Military Departments, and the Chair of

the Armed Forces Epidemiological Board, identify vaccines

available to protect against biological threat agents

designated by the Chairman of the Joint Chiefs of Staff

and recommend appropriate immunization protocols.

5.3.3. Issue instructions to the Military Departments and

the other appropriate DoD Components on the immuniza-

tion of DoD personnel, under the guidelines of this Direc-

tive, and monitor and evaluate the implementation of

those instructions.

5.4. The Secretary of the Army, as the DoD Executive

Agent for the Immunization Program for Biological War-

fare Defense, shall:

App. 66

5.4.1. Besides those responsibilities in the Deputy

| Secretary of Defense Memorandum and the Joint Service

Agreement (references (e) and (f)), do the following to

enhance the DoD Immunization Progrem for Biological

Warfare Defense, and report annually through the Assis-

tant Secretary of Defense for Health Affairs (ASD (HA)) to

the Secretary of Defense the capability to carry out those

policies:

5.4.1.1. Vaccine Research and Development

5.4.1.1.1. Priorities developed in coordination with the

ASD (HA), the Chairman of the Joint Chiefs of Staff, and

the Secretaries of the Military Departments shall include

the development of vaccines against validated biological

warfare threat agents for which none exist, improvement

of vaccines that are unacceptable in the time they take to

produce immunity or in the level of immunity they pro-

duce or are inadequate because of the number of doses

required to achieve immunity, assessment of the effective-

ness of vaccines against biological warfare threat agents in

their likely modes of use (e.g., aerosols), and development

of multivalent vaccines that will produce protective im-

munity after a single vaccination.

Vaccines must be either licensed sy the Food and

Drug Administration (FDA) or have been designated,

under FDA requirements, “for use as investigational new

drugs (INDs),” as in 21 CFR 50 (reference (g)).

5.4.1.2. Vaccine Acquisition and Stockpling

5.4.1.2.1. Develop and maintain a [oD capability to

acquire and stockpile adequate quantities of vaccines to

protect the programmed force against al validated biologi-

cal warfare threat agents for which suitable vaccines exist.

App. 67

5.4.1.2.1. On an annual basis, provide information and

recommendations, in coordination with the Secretaries of

the Military Departments and the Chair of the Armed

Forces Epidemiological Board, to the ASD (HA) on vac-

cines to acquire and appropriate immunization schedules

that include reimmunization required to develop and

maintain protective immunity. Those recommendations

should include, but not be limited to the following:

5.4.1.2.1.1. All relevant data on the effectiveness of each

vaccine against the corresponding biological warfare

threat agent.

5.4.1.2.1.2. The expected type, frequency, and severity of

vaccine-associated adverse reactions.

5.4.2. Serve as the focal point for the submission of

information from the Services, as specified by subsection

5.5., below, and monitor the Services’ implementation of

the DoD Immunization Program for Biological Warfare

Defense. Recommend appropriate changes and improve-

ments to the Secretary of Defense through the ASD (HA),

and the Secretaries of the Military Departments. Report to

the Secretary of Defense annually on the Immunization

Program for Biological Warfare Defense.

5.4.3. The Executive Agent Acquisition Executive (AE)

shall plan, program, and budget for biological defense.

The AE shall coordinate directly with the ASD (HA),

the Under Secretary of Defense for Policy, the Under

Secretary of Defense for Acquisition, the Secretaries of the

Departments, and other offices as required to ensure

program integration.

5.5. The Secretaries of the Military Departments shall:

App. 68

5.5.1. Implement, monitor, evaluate, and document the

DoD Immunization Program for Biological Warfare De-

fense in their Department and establish procedures for

coordinating and reporting the following information to

the Executive Agent:

5.5.1.1. The identification, reporting, and epidemiologic

evaluation of vaccine-associated adverse reactions, in

accordance with FDA requirements.

5.5.1.2. The collection and forwarding of data required by

the Executive Agent needed to meet the requirements of

the FDA for products that are the INDs.

5.5.2. Transmit the instructions of the ASD (HA) about

the immunization program for biological warfare defense

to subordinate units.

5.5.3. Program and budget for the required vaccinations

for members of their Department and provide the DoD

Executive Agent with projected program requirements.

5.6. The Chairman of the Joint Chiefs of Staff, in consul-

tation with the Commanders of the Unified Commands;

the Chiefs of the Military Services; and the Director,

Defense Intelligence Agency (DIA), annually and as

required, shall validate and prioritize the biological

warfare threats to DoD personnel and forward that list to

the DoD Executive Agent through the ASD (HA).

5.7. The Commanders of the Unified Commands, annu-

ally and as required, shall provide the Chairman of the

Joint Chiefs of Staff with their assessment of the biological

warfare threats to their theaters.

5.8. The Chair of the Armed Forces Epidemiological

Board, in consultation with the DoD Executive Agent and

Paani ci ia ana is rte

App. 69

the Secretaries of the Military Departments, annually and

as required, shall identify to the ASD (HA) vaccines

available to protect against validated biological warfare

threat agents, and recommend appropriate immunization

protocols.

6. PROCEDURES

The DoD Immunization Program for Biological Warfare

Defense shall be conducted, as follows:

6.1. The Commanders of the Unified Commands, annu-

ally and as required, shall provide the Chairman of the

Joint Chiefs of Staff with their assessment of the biological

warfare threats to their theater.

6.2. The Chairman of the Joint Chiefs of Staff, in consul-

tation with the Commanders of the Unified Commands;

the Chiefs of the Military Services; and the Director, DIA,

annually, shall validate and prioritize the biological

warfare threats to DoD personnel and forward them to the

DoD Executive Agent through the ASD (HA).

6.3. Within 30 days of receiving the validated and priori-

tized biological warfare threat list from the Chairman of

the Joint Chiefs of Staff, the DoD Executive Agent shall,

in consultation with the Secretaries of the Military De-

partments and the Chair of the Armed Forces Epidemiol-

ogy Board, provide recommendations to the ASD (HA) on

vaccines and immunization protocols necessary to enhance

protection against validated biological warfare threat

agents.

6.4. Within 30 days of receiving the coordinated recom-

mendations of the DoD Executive Agent, the ASD (HA)

shall direct the Secretaries of the Military Departments to

App. 70

begin immunization of the specified DoD personnel

against specific biological warfare threat agents.

6.5. For biological threats for which the only available

vaccine is an ND, it shall be administered under 21 CFR

50 and 312 (reference (g)) and the established ND protocol

and/or other applicable legal procedures.

7. INFORMATION REQUIREMENTS

The annual reporting requirements in section 5., above,

have been assigned Report Control Symbol DD-POL(A)

1921.

8. EFFECTIVE DATE AND IMPLEMENTATION

This Directive is effective immediately. The Secretaries of

the Military Departments shall forward one copy of

implementing documents to the Assistant Secretary of

Defense for Health Affairs within 120 days.

Enclosures — 2

1. References

App. 71

(SEAL) THE ASSISTANT SECRETARY OF DEFENSE

HEALTH WASHINGTON, DC 20301-1200

AFFAIRS

MAY 18 1998

MEMORANDUM FOR SECRETARIES OF THE MILI-

TARY DEPARTMENTS CHAIRMAN OF THE

JOINT CHIEFS OF STAFF UNDER SECRETAR-

IES OF DEFENSE ASSISTANT SECRETARIES

OF DEFENSE GENEREAL COUNSEL, DE-

PARTMENT OF DEFENSE INSPECTOR GEN-

ERAL, DEPARTMENT OF DEFENSE

SUBJECT: Implementation of the Anthrax Vaccination

Program for the Total Force

I have approved implementation of the Anthrax Vaccina-

tion Program for the total force. As you know, on Decem-

ber 15, 1997, I approved the program after a two-year

review effort and based on the recommendation of the

Chairman and Joint Chiefs of Staff. I made implementa-

tion of the program contingent on the successful comple-

tion of four conditions: supplemental testing of the

vaccine; assured tracking of immunizations; approved

operational and communications plans; and review of the

health and medical aspects of the program by an inde-

pendent expert. All conditions for implementing the

anthrax vaccination program for the total force have now

been met. Vaccinations of the active components and

Selected Reserve shall proceed consistent with this memo-

randum and all specifications of the Food and Drug

Administration approved product labeling.

The Secretary of the Army, in accordance with DoD

Directive 6205.3, “DoD Immunization Program for Biologi-

cal Warfare Defense” (November 26, 1993) will exercise

App. 72

Executive Agency for the Department’s Anthrax Vaccina-

tion Program. The Secretary of the Army will assign a

senior military official to implement vaccine acquisition

and stockpiling and, on behalf of the Executive Agent, will

perform the following functions: manage and administer

the overall program; serve as focal point for the submis-

sion of information from the Services relating to vaccine

adverse reactions and vaccine projected program require-

ments; monitor the Services’ implementation of the An-

thrax Vaccination Program; and execute the Army’s

implementation plan.

The Assistant Secretary of Defense for Legislative Affairs

is directed to carry out the congressional notification plan.

The Assistant Secretary of Defense for Public Affairs is

directed to carry out the public communication plan and

insure the consistency of informational materials for

military members. The Assistant Secretary of Defense for

Health Affairs is responsible for the promulgation of

medical standards, policies and protocols for the program.

The Secretaries of the Navy and Air Force are directed to

assign a senior military official to implement respective

Service implementation plans and to advise the Under

Secretary of Defense (Personnel and Readiness) and the

Executive Agent of this designation within seven days of

the date of this memorandum. The Secretaries are further

directed to implement, monitor, evaluate, and document

the Anthrax Vaccination Program in their respective

departments, conform to standards established on medical

protocols and informational materials, advise the Execu-

tive Agent of any special, operationally necessary imple-

mentation requirements of their respective Services, and

establish procedures for coordinating and reporting

App. 73

required information to the Executive Agent. The Execu-

tive Agent will report quarterly to the Under Secretary of

Defense (Personnel and Readiness) on the progress of the

program.

App. 74

(SEAL) THE ASSISTANT SECRETARY OF DEFENSE

HEALTH WASHINGTON, DC 20301-1200

AFFAIRS

MAR 30 1999

MEMORANDUM FOR SECRETARY OF THE ARMY ;

SECRETARY OF THE NAVY

SECRETARY OF THE AIR FORCE

SUBJECT: Change to Anthrax Vaccine Immunization

Program (AVIP) Operational Procedure (One Day Policy)

Schedule

Effective immediately, the AVIP will be applied to all U.S.

military personnel and Department of Defense (DoD)

emergency esséntial civilian employees and contractor

personnel assigned, deployed or on temporary duty in the

high threat areas and contiguous waters of South-west

Asia (Kuwait, Saudi Arabia, Bahrain, Jordan, Qatar,

Oman, UAE, Yemen, and Israel) and the Korean Penin-

sula for any period of time. Prior to entry into the desig-

nated high threat areas these personnel must initiate

vaccination against anthrax in accordance with the pre-

scribed Immunization schedule. Ideally, personnel should

receive at least the first three vaccinations in the series. In

those rare circumstances when an Individual is not able to

take or continue with the anthrax vaccination for medical

or administrative reasons, they will be evaluated for

deployability in accordance with Service criteria. Neither

this policy nor the requirement to participate in AVIP is

applicable to civilian employees or contractor personnel

who are not designated as emergency essential.

Services will emphasize this policy immediately in all

appropriate communications. Programs to educate and

elt te magne REE 5 le ae ll cc

App. 75

inform personnel about the threat and the anthrax vac-

cine, prior to being immunized will continue as directed.

Services will ensure that your activities meet labor rela-

tions obligations and contracting requirements prior to

implementing this policy with respect to civilian employ-

ees and contractor personnel. The Military Health System

shall support provision of anthrax immunizations.

Our continued success in executing the AVIP depends

greatly upon meticulous execution of communication and

compliance programs.

/s/ [Illegible]

App. 76

FW R 141700Z-OCT-99 C ANTHRAX VACCINA-

TION IMMUNI MSGID/GENADMIN//COMSC WASH-

INGTON DC//

SUBJ/ANTHRAX VACCINATION IMMUNIZATION

PROGRAM (AVIP)//

REF/A/RMG/SECDEF/151342ZDEC97/-//

REF/B/DOC/DOD DIR/26NOV93/-//

REF/C/RMG/SECDEF/031403ZMAR98/-//

REF/D/DOC/SECNAVINST/6230.4/-//

REF/E/SECDEF/29190-4ZMAY98/-//

REF/F/USD (P&R) MEMO DTD 30 MAR 99/-//

REF/G/RMG/BUMED/281500ZSEP98/-//

REF/H/RMG/BUMED/151500ZOCT98/-//

REF/I/RMG/SECNAV/271840ZAPR98/-//

REF/J/DOC/BUMEDINST/6230. 15/-//

REF/K/DOC/BUMEDNOTE/6230/-//

REF/L/DOC/5CFR339.205/-//

RMKS/1. THE PURPOSE OF THIS MSG IS TO DE-

LINEATE THE MSC IMMUNIZATION (INCLUDING

ANTHRAX) POLICY FOR CIVILIAN MARINERS

(CIVMARS). PER REFS A THRU E, THE THREAT OF

BIOLOGICAL WARFARE IS A CONSTANT RISK

AGAINST U.S. FORCES. ASSESSMENTS HAVE IDEN-

TIFIED ANTHRAX AS THE PRIMARY BIOLOGICAL

THREAT FACING AMERICAN SERVICE PERSONNEL.

THE ANTHRAX VACCINE HAS BEEN GIVEN IN THE

rent

Bo OE PR AN Sieg,

App. 77

U.S. FOR ALMOST 30 YEARS TO CIVILIAN HIGH-RISK

PERSONNEL SUCH AS VETERINARIANS, LIVESTOCK

WORKERS AND SPECIAL OPERATIONS MILPERS

WITH NO SERIOUS SIDE EFFECTS. ANTHRAX VAC-

CINE IS CONSIDERED ONE OF THE SAFEST VAC-

CINES AVAILABLE.

2. IN DEC 97, SECDEF APPROVED TOTAL FORCE

ANTHRAX IMMUNIZATION PROGRAM AS AN INTE-

GRAL PART OF DOD FORCE PROTECTION WITH

VACCINATION INITIATED IN THE SUMMER OF 1998.

3. REFS (D) AND (E), UPDATED BY REF (F), PROM-

ULGATED ACCELERATED ANTHRAX IMMUNIZA-

TION PRGM DESIGNED TO IMMUNIZE PERSONNEL

DEPLOYING TO SOUTHWEST ASIA (SWA) AND

NORTHEAST ASIA (NEA) REGIONS PRIOR TO COM-

MENCING TOTAL FORCE IMMUNIZATION PLANS.

FW R 141700Z-OCT-99 C ANTHRAX VACCINA-

TION IMMUNI

4. REFS (D) AND (G) OUTLINE A SYSTEMATIC,

THREE PHASED, TOTAL FORCE IMPLEMENTATION

PLAN DEVELOPED TO VACCINATE THE ENTIRE

FORCE AGAINST ANTHRAX OVER A 6 TO 7 YEAR

PERIOD. REFS (G) AND (H) OUTLINE SPECIFIC

DATES, CONTACTS, AND LOGISTICS. THE DOD AVIP

TOTAL FORCE VACCINATION PROGRAM WILL BE

EXECUTED IN THREE PHASES AS FOLLOWS: PHASE

I. FROM INCEPTION TO THE END OF CY 1999, PHASE

I, REQUIRES THAT PERSONNEL SUBJECT TO DE-

PLOYMENT INTO HIGH THREAT AREAS FOR ANY

LENGTH OF TIME, BE IMMUNIZED FOR ANTHRAX.

IDEALLY, AT LEAST THREE SHOTS SHOULD BE

GIVEN, IF FEASIBLE, PRIOR TO DEPLOYMENT.

App. 78

PHASE II. DEPENDENT ON VACCINE PRODUCTION,

PHASE II WILL COMMENCE JAN 2000 AND VACCINE

GIVEN TO PERS OF SPECIFIED UNITS THAT ARE

IDENTIFIED IN ADVANCE OR SUBJECT TO DE-

PLOYMENT WITHIN C+35 DAYS OR EARLIER IN

SUPPORT OF OPLANS INTO HIGH THREAT AREAS.

PHASE III. PHASE III IS SKED TO COMMENCE 2003

AND WILL IMMUNIZE THE REMAINDER OF THE

TOTAL FORCE AND NEW ACCESSIONS. ONCE THE

AVIP BASIC SERIES OF SHOTS IS COMPLETED,

PERSONNEL WILL RECEIVE AN ANNUAL BOOSTER

TO MAINTAIN IMMUNITY. ANTHRAX VACCINE WILL

BE A ROUTINE VACCINATION REQUIREMENT.

5. MSC’S POLICY IS TO FULLY SUPPORT AND

IMPLEMENT DOD AND SUBSEQUENT SUPPORTING

DIRECTIVES PURSUANT TO FULL FORCE IMMUNI-

ZATION OF PERS AGAINST ANTHRAX.

6. IAW REFS (I) THROUGH (L), ALL NAVY AND

MILITARY SEALIFT COMMAND SHIPS, INCLUDING

CIVMARS ARE SUBJECT TO THE SAME IMMUNIZA-

TION REQ AS DEPLOYABLE FORCES. BASED ON

SPECIFIC DISEASE RISK ASSESSMENTS IN THEIR

AREA OF OPERATIONS (AOR), THE CINCS OF UNI-

FIED COMMANDS MAY REQUIRE ADDITIONAL

IMMUNIZATION(S) TO PROTECT PERSONNEL TRAV-

ELING INTO THAT AOR AGAINST OTHER IDENTI-

FIED DISEASK(S). THE BASIC IMMUNIZATION

SERIES FOR DEPLOYABLE NAVAL FORCES, IN-

CLUDING ANTHRAX, IS A REQUIREMENT FOR ALL

MSC CIVMARS UNLESS MEDICALLY WAIVED.

7. REFERENCE (D) ESTABLISHED WAIVER CRITE-

RIA FOR AVIP, AND REF (F) ESTABLISHED GENERAL

App. 79

WAIVER POLICY FOR ALL IMMUNIZATIONS. RE-

FUSAL TO RECEIVE ANTHRAX OR OTHER RE-

QUIRED IMMUNIZATIONS WITHOUT AN APMC

APPROVED WAIVER ON MEDICAL OR OTHER

GROUNDS AS SET FORTH BY DOD OR DON WILL BE

SUBJECT TO ADMINISTRATIVE AND/OR DISCIPLI-

NARY ACTION HANDLED BY THE APMC. THE ISSUE

IS REFUSAL OF A DIRECT ORDER AND IS NOT AN

ISSUE OF ANTHRAX VACCINE SAFETY. THE AN-

THRAX VACCINE WAS NOT TESTED BY THE FDA

FOR SIDE EFFECTS ON PERSONNEL BELOW 17

YEARS OF AGE OR ABOVE 65 YEARS OF AGE.

THEREFORE, PERS 66 YEARS OF AGE OR OLDER,

CAN NOT BE LEGALLY IMMUNIZED FOR ANTHRAX

AND ARE AUTOMATICALLY WAIVED. MSC PERS IN

THIS CATEGORY MAY BE REASSIGNED TO AN-

OTHER UNIT NOT DEPLOYING TO A HIGH THREAT

AREA OR SIGN A WAIVER IF THEY WISH TO DEPLOY

TO A HIGH THREAT AREA WITHOUT THE ANTHRAX

IMMUNIZATION.

8. POINT OF CONTACT FOR THE MSC AVIP AND

POLICY IS MR. JIM GEE AT COMSC WASHINGTON

DC (202) 685-5134. RESOLUTION OF POTENTIAL

DISCIPLINARY ISSUES INVOLVING REQUIREMENTS

OF EMPLOYMENT ARE TO BE ADDRESSED AT THE

APMC.

——

App. 80

AIR FORCE JOINT INSTRUCTION 48-110

ARMY REGULATION 40-562

BUMEDINST 6230.15

CG COMDTINST M6230.4E

1 NOVEMBER 1995

BY ORDER OF THE

SECRETARIES OF THE AIR FORCE,

ARMY, NAVY, AND TRANSPORTATION

(SEAL) Aerospace Medicine

IMMUNIZATIONS AND CHEMOPROPHYLAXIS

This publication provides the directive requirements for

the Armed Forces Immunizations Program, establishes

general principles, procedures, policies, and responsibili-

ties for the immunizations program, implements Depart-

ment of Defense (DoD) Instruction 6205.2, Immunization

Requirements; DoD Directive 6205.3, DoD Immunization

Program for Biological Warfare Defense; International

Military Standardization Agreement (STANAG 3474); and

international health regulations and requirements. This

publication applies to uniformed departments of the Air

Force, Army, Navy, Marine Corps, and Coast Guard

(Active and Reserve), nonmilitary persons under military

jurisdiction, selected Federal employees, and family

members eligible for care within the military health care

system. Each form affected by the Privacy Act which is

required by this publication either contains a Privacy Act

Statement incorporated in the body of the document or is

covered by the DD Form 2005, Privacy Act Statement -

Health Care Records. Send comments and suggested

improvements-on AF Form 847, Recommendation for

Change of Publication, through channels, to HQ AF-

MOA/SGOP, 110 Luke Avenue, Room 400, Bolling AFB,

App. 81

DC 20332-7050 or to preventive medicine authorities

assigned in 12.4.3. ‘

; SUMMARY OF REVISIONS

This revision updates recent changes in immunization

recommendations by the U.S. Public Health Service and

incorporates requirements of the National Childhood

Vaccine Injury Act of 1986 (Section 2126 of the Public

Health Service Act, 42 U.S.C. 300aa-26).

Section A - Responsibilities

1. Command Medical Authority. Prescribes specific

immunization and chemoprophylactic requirements for

their units per requirements established by this publica-

tion and additional guidance provided by the appropriate

Surgeon General (SG) or Commandant (G-K), Coast

Guard.

2. Commanders. Commanders, commanding officers,

and officers-in-charge:

2.1. Ensure all military and nonmilitary personnel under

their jurisdiction receive all required immunizations.

2.2. Maintain appropriate international, Federal, state,

and local records of all required immunizations (Section

G).

2.3. Ensure personnel transferred to another command

receive appropriate immunizations for the area which

assigned.

App. 82

8. Commanders At Ports of Embarkation or De-

barkation. Ensure deviations from specified immuniza-

tions and reimmunizations are cleared or authorized by

the appropriate SG or Commandant (G-K), Coast Guard.

4. Medical Treatment Facility Commanders, Com-

manding Officers, and Command Surgeons.

4.1. Ensure currently published standards for both adult

and pediatric immunizations, and chemoprophylactic

practices are followed and references in attachment 1 are

carefully reviewed.

App. 83

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* * *

Section C - Personnel Subject to Immunizations

14. Active Duty Personnel. Receive immunizations as

indicated in Table 1.

15. Accessions and Recruits. Officer and enlisted

accessions are scheduled at a minimum for influenza

during influenza season, trivalent Oral Polio Vaccine

(OPV), measles, tetanus-diphtheria, and rubella vaccina-

tion early during processing or training. Recruits also

receive adenovirus types 4 and 7 and meningococcal

vaccination.

15.1. Air Force Only. Air Force recruits receive adenovi-

rus vaccination only when there is evidence of active

disease transmission.

15.2. Navy and Marine Corps Only. Officer and enlisted

accessions receive mumps vaccine and influenza vaccine

year-round.

16. ROTC and Service Academies. Members of the

Army, Navy, Air Force, and Marine Corps Components, to

include Reserve Officers’ Training Corps (ROTC) cadets,

who are ordered or called to active duty or active duty for

training in the U.S. for a period of 30 days or less (and not

in recruit training) and officers in Service Academies are

immunized in accordance with the requirements for officer

accessions. Adenovirus and meningococcal vaccinations

are not required for ROTC and Service Academy atten-

dance. Army ROTC cadets attending summer camps in the

U.S. receive tetanus-diphtheria, measles, and rubella

vaccines only. Oral polio vaccine is not required for Army

cadets in summer camps.

App. 85

17. Alert Forces. Alert forces are defined as follows and

are immunized in accordance with Table 1. Categories are

as follows:

17.1. Army Only. Members of units, both active and

Reserve Component, designated to be in a state of readi-

ness for immediate ‘leployment to any area outside of the

U.S., includes units and individuals required to be in a

stuve of readiness for immediate deployment within 30

days or less of notification.

17.2. Navy and Marine Corps Only. All fleet units

deployed on a scheduled or situational basis to any foreign

country (except Canada). These units include all Navy and

Military Sealift Command ships (including civilian mari-

ners), aircraft squadrons, Fleet Marine Force units,

construction battalion detachments, end naval special

warfare personnel. This includes Medical Department

personnel assigned to Mobile Medical Augmentation

Readiness Teams and other naval personnel, including

members of Reserve units, subject to ioreign deployment

on short notice. %

17.3. Air Force Only. Aircrew personnel, individuals, and

members of units (active, Reserve Component, and Air

National Guard) subject to rapid deployment to any

theater of operations by virtue of present assignment or

mission function.

17.4. Coast Guard Only. Personnel attached to combat or

combat support units (WHEC, WMEC, WPB, WAGB,

WLB, CGAS), national strike force, members of the Coast

Guard Reserve designated by the district commander,

individuals or special teams which are available for

immediate deployment outside the United States, and any

App. 86

or all members of a unit whose commanding officer

chooses to protect and preserve operational effectiveness.

18. Reserve Component Personnel. Other than as

defined above, military personnel, including individuals in

the Reserve Components, receiving orders for active duty

for periods of 30 days or more (10 days for Naval Reserv-

ists) are immunized in accordance with Table 1. Immuni-

zations and re-immunizations are given as soon as

possible after receipt of orders or after arrival at a training

or mobilization center, or in the case of persons not so

assigned, at the first and subsequent duty stations.

19. Family Members. Family members should receive

immunizations following current ACIP recommendations.

20. Federal Civilian Employees Subject to Rapid

Deployment. Federal civilian employees and other

groups having status equivalent to deployable forces

serving under the auspices of the Military Services are

subject to the same immunization requirements as active

duty personnel.

21. Other Federal Civilian Employees and Their

Family Members.

21.1. Employees and their family members engaged in

foreign duty under military sponsorship. Federal civilian

employees and their family members receive immuniza-

tions required for entry by the foreign country in which

they are working. Country specific immunizations are

administered at military installations without charge

upon presentation of official orders or authorization. Area

preventive medicine authorities are consulted for recom-

mendations for specific areas. Persons declining immuni-

zations required for entry into foreign countries are

App. 87

counseled that this omission may subject them to compul-

sory immunizations, detention and quarantine, or denial

of entry by host country authorities.

21.2. Occupationally indicated vaccines for civilian

employees. Federal civilian employees at risk of exposure

to an infectious disease associated with their occupation or

service receive appropriate immunizations without charge

at military activities. Immunizations will be administered

upon recommendation of the responsible preventive

medicine authority.

App. 88

SECNAVINST 6230.4

(29 Apr 1998)

ANNEX G

CIVILIAN PERSONNEL

1. REFERENCES

a. Department of Defense Directive, DoDD 6205.3,

DoD Immunization Program for Biological Warfare De-

fense, 26 November 1993 (NOTAL).

b. BUMEDINST 6230.15, Air Force Joint Instruction

48-110, Army Regulation 40-562, and CG COMDTINST

M6230.4E, Immunizations and Chemoprophylaxis (NOTAL).

c. Package Insert, Anthrax Vaccine Absorbed,

Michigan Biological Products Institute

2. PURPOSE. To provide the civilian personnel concept

of operations and assign responsibility for the implemen-

tation of the Department of the Navy Anthrax Vaccination

Implementation Program (AVIP).

3. Scope. This Annex applies to all civilian employees of

the DON.

4. APPLICABILITY

a. Overall policy. Federal civilian employees and other

groups having status equivalent to deployable forces

serving under the auspices of the DON are subject to the

same immunization requirements as active duty person-

i nel. Commanding officers must comply with 5 Code of

i Federal Regulations (CFR) 339.205 prior to requiring

immunization of federal civilian employees. Questions

regarding the application of this policy to contract employ-

ees will be addressed by the cognizant contracting activity.

App. 89

SECNAVINST 6230.4

(29 Apr 1998)

b. Immunization against anthrax is indicated for

those employees (DON civilians) whose duties classify

them “Mission Essential” and place them at risk for

exposure to anthrax used as a biological weapon in a

combat or operational setting.

c. For the purposes of this plan, risk does not include

the potential for anthrax used in acts of terrorism against

noncombatants. Examples of employees who should be

immunized include those who work in, or are likely to be

deployed to, areas of operations identified as high risk.

d. Ultimately, the commander determines which

employees are at sufficient risk to warrant immunization.

e. Command-directed anthrax immunization is

administered without charge to the employee.

4. CONSENT FOR IMMUNIZATION

a. Civilian employee immunization is by informed

consent. Employees will be encouraged to accept anthrax

immunization when offered. However, in certain in-

stances, anthrax immunization might be determined by

the appropriate authority to be a condition of employment.

A Vaccine Information Sheet will be provided to all vac-

cine recipients.

b. The effect on an employee who refuses immuniza-

tion, when indicated, will be determined by the supervisor

and commander in conjunction with representatives of the

Civilian Personnel Office. Refusal of anthrax immuniza-

tion must be documented in the employee personnel record

and the occupational health record.

App. 90

SECNAVINST 6230.4

(29 Apr 1998)

5. DOCUMENTATION

a. Risk communication. Commanders will be respon-

sible for ensuring that employees are~adequately trained

and aware of the health risk of anthrax as a biological

weapon, and document that this training was received.

b. Refusal. Refusal of immunization must be docu-

mented as indicated in 4b above.

c. Health records

(1) All anthrax immunizations will be recorded

in the occupational health record and on a PHS Form 731.

Written entries will contain the data elements described in

annex A.

(2) Employee immunizations will be entered into

the automated data system for tracking in the manner

described in annex C.

(3) Serious adverse reactions to immunization

will be recorded in the occupational health record, and

reported to NAVENVIRHLTHCEN in the manner de-

scribed in annex C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.