Joseph v. Mazares, Jr. and Michael R. Testman v. Department of Navy, No. 01-337-3338 (Fed. Cir. Sept. 11, 2002).

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 the appellants to undergo anthrax vaccination

The Department of the Navy removed two civilian seamen it employed aboard the naval ship Kilauea because they disobeyed an order to be vaccinated against anthrax. On appeal, the MSPB administrative judge found that the Navy had proved by preponderant evidence its charges that Mazares and Testman "willfully and intentionally refused the order of a superior officer." He rejected the appellants' contention that the order was unauthorized, finding that the Navy "had full authority to order the appellants to submit to anthrax vaccination, and immediate vaccination became a requirement of the appellant's CIVMAR position when KILAUEA (assigned to carry ammunition which it supplied to an aircraft carrier operating in the western Pacific Ocean) was ordered to land in Korea, which had been designated a high-threat area." He noted that their "subjective fear of vaccination was not sufficient to excuse their failure to obey a direct order." Thus, the MSPB administrative judge upheld the removals. The MSPB denied the appellants' petition for review.

Mazares and Testman challenged their removals to the Federal Circuit on two grounds. They contended that (1) the order to receive the anthrax vaccine was unauthorized and they therefore could not be punished for disobeying it and (2) the penalty of removal was excessive.

The Federal Circuit reviewed the circumstances in this case and concluded that the military has broad authority and discretion in dealing with its personnel, both military and civilian, including the protection of their health. Further, the Navy did not exceed its authority or otherwise abuse its discretion by ordering Mazares and Testman to undergo anthrax vaccination. 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 immunization vaccine." That misconduct constituted insubordination, which the court had defined as a "willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed," in an earlier decision, Bieber vs. Department of the Army, 287 F.3d 1358 (Fed. Cir. 2002).

The court noted that Congress characterized its amendments of section 7121(a)(1) as "Technical and Conforming Amendments."

In this case, there was clear and unjustified refusal to obey the order of a superior. The court concluded that there can be no question that the removal of Mazares and Testman was "for such cause as will promote the efficiency of the service."

Accordingly, the court concluded that the Board correctly determined that the agency-imposed penalty of removal did not exceed the maximum reasonable penalty under the circumstances. The court affirmed the Board's decision.