Rep. Luna, husband, sue Pentagon over since-repealed COVID-19 vaccine mandate

Rep. Anna Paulina Luna (R-Fla.) and her husband are suing the Department of Defense (DOD) after he left the military for refusing to receive the COVID-19 shot under the Pentagon’s since-repealed vaccine mandate.

Luna and her husband, Andrew Gamberszky, a former technical sergeant with the Oregon Air National Guard, this week filed a complaint against the National Guard Bureau, DOD, the Air Force and Oregon Department of Military for what they say was a violation of Gamberzky's First Amendment rights. 

In the court filings, Luna and Gamberzky's attorney claims Gamberzky sought religious and medical exemptions to taking the shot but was denied. He was later forced to resign after he refused the vaccine “based on his sincerely held religious beliefs." 

As a result of his ouster, he and Luna incurred “significant financial injury,” including “loss of healthcare, spousal benefits, and survivor benefits as provided for by the military,” according to the complaint filed in the U.S. District Court for the Middle District of Florida. 

The complaint holds that DOD violated Gamberzky's First Amendment rights, noting that “discrimination on the basis of Plaintiffs sincerely held religious beliefs caused Plaintiffs wrongful separation from the National Guard.” 

Defense Secretary Lloyd Austin in August 2021 issued a mandate requiring coronavirus vaccines for all service members, including those in the National Guard and Reserve. 

Those who did not comply faced various levels of punishment, including loss of days individuals accrued toward retirement, loss of pay or even dismissal from the ranks. 

But a little over a year later in January, the Pentagon formally rescinded the order, dropping the shot’s requirement across the military, as stipulated in the fiscal 2023 National Defense Authorization Act (NDAA). 

Several Republican lawmakers have since argued for back pay or reinstatement for troops who were kicked out over the mandate. 

The issue came up during negotiations over this year’s NDAA, with Congress including a provision that directs the Pentagon to review the reinstatement of U.S. troops who were discharged for refusing the shot. The bill has been passed by both the House and Senate and awaits President Biden’s signature to become law. 

Gamberzky, who entered the Air Force in 2009, worked with special operations teams and was awarded a Purple Heart in Afghanistan in 2014 after he was shot and sustained life-threatening injuries. Other decorations include the Combat Action Ribbon and a Bronze Star, according to the filing.  

In 2017 he joined the Oregon Air National Guard, where he was serving when the Pentagon put out its vaccine mandate.  

Gamberzky, a practicing Christian, said he objected to the coronavirus vaccine due to his religious beliefs and opposition to abortion, as he claims aborted fetal cell tissue was used in the development of some vaccines.  

While the COVID-19 vaccines do not contain aborted fetal cells, Johnson & Johnson did use fetal cell lines — not fetal tissue — when developing and producing their shot. Pfizer and Moderna, meanwhile, used fetal cell lines to test their vaccines. 

Gamberzky sought a religious exemption to the mandate in an Oct. 14, 2021, email, and also requested a medical exemption or accommodation on or about that time, according to his attorney.  

He later learned that nearly all his exemptions were rejected and feared punishment, ultimately leading to him deciding to resign rather than wait to be removed by his superiors.  

Though Gamberzky left the military on his own accord, the filing argues he was “railroaded” by the vaccination mandate and “wrongfully made to separate . . . as he was forced to choose between his dignity; compromising his pride as a high-level, long-serving member of the Airforce and National Guard; his job; and his sincerely held religious beliefs.” 

He and Luna “have suffered, and continue to suffer, economic injury and irreparable harm,” with the two seeking "an award of monetary damages and equitable relief,” according to the filing.  

Luna, also a former service member, said the case goes beyond the legality of the COVID-19 vaccine mandate, rather, it’s a “significant equal protection issue.” 

"It’s an infringement on his constitutional rights, his religious rights, his due process right,” she said. “Andy is a man with great integrity, and he stood up for what he believed in - instead of respecting his decision they took away his benefits that he rightfully earned after years of serving our country.”