Eric Katz, Senior Correspondent
March 24, 2023 - Government Executive
A federal appeals court Thursday night upheld a nationwide injunction on President Biden’s COVID-19 vaccine mandate for federal employees, leaving in place a prohibition on the administration enforcing the requirement.
The latest decision came from an en banc rehearing before the full U.S. Court of Appeals for the 5th Circuit, where a 10-judge majority ruled against the Biden administration. A three-judge panel on the court last year briefly overturned an injunction first instituted at the district court level, but the pause went back into effect last June when the full 5th Circuit agreed to rehear the case. With the mandate’s enforcement still paused, federal agencies cannot suspend, fire or otherwise discipline the small minority of their workers not already in compliance with the requirement.
After a district judge first enjoined the mandate in January 2022, the original 5th Circuit panel ruled in a 2-1 decision the court was not the proper jurisdiction for federal employees to bring their complaints. The en banc majority, however, said the plaintiffs：eds for Medical Freedom and a union representing some Homeland Security Department employees『ere not bringing a case related to personnel actions covered by the Civil Service Reform Act and could therefore pursue their complaints through the federal circuit. Because the issues revolved around “mandated vaccinations that have consequences long after the employee leaves the federal workforce,” the majority said the employees were not constrained by the bounds of the Civil Service Reform Act.
The court also said the issues at stake were outside the expertise of the Merit Systems Protection Board and it would “substantially burden” the agency to “task it with such non-[Civil Service Reform Act] matters.” It likened the mandate case to one in which an individual installed a camera in the women’s changing room at a Veterans Affairs Department facility, which a court ruled could be litigated outside of the reform act's…onstruct.
“If ‘working conditions’ does not include peephole cameras in workplace changing rooms,” Circuit Judge Andrew Oldham, a President Trump appointee, wrote in the majority opinion, “it certainly does not include private, irreversible medical decisions made in consultation with private medical professionals outside the federal workplace.”
The case will go back to the U.S. Court for the Southern District of Texas for a decision on the merits of the case and on a permanent, rather than the current preliminary, injunction. The majority noted that “both sides will have to grapple with the White House’s announcement that the COVID emergency will finally end on May 11, 2023.”
In a partially dissenting opinion, Circuit Judge Stephen Higginson, a President Obama appointee, sharply criticized the majority for failing to justify the nationwide injunction using the merits of the case. He likened the decision to answering “vital constitutional questions without showing our work.”
“Today, our court affirms a nationwide injunction, put in place over a year ago, without explanation or analysis of any of the preliminary injunction factors,” Higginson wrote. “This method of rubberstamping a district court’s nullification of the President’s authority over the executive branch is unprecedented and improper on en banc rehearing.”
Higginson said that under the Civil Service Reform Act, federal employees cannot bring challenges to federal employment policies prior to enforcement. At the time of the original injunction, agencies had not yet begun suspending or firing staff. He also concurred with the government’s argument that the president, as CEO of the executive branch, can place workplace conditions on civil servants.
“The vaccine requirement fell within the president’s power to regulate his employees,” Higginson wrote.
In a rebuttal to Higginson’s dissent, Circuit Judge James Ho, also a Trump appointee, said the government would have bolstered its case by arguing the Civil Service Reform Act（s unconstitutional and the president should be able to fire at will any federal employee who is “unwilling to faithfully execute his policy vision for our country.” By forfeiting that argument, Ho said, the court was left to conclude Biden was “impermissibly leveraging (and therefore exceeding) his removal power in order to meddle in the private lives of federal employees.”
In a separate dissent, Circuit Judge Catharina Haynes said the court was correct to block the mandate, but it should have done so only specifically for the plaintiffs in the case and not on a nationwide basis.
The 5th Circuit heard oral arguments on the case in September.
According to the most updated figures from the Biden administration, at least 98% of the federal workforce is in compliance with the mandate by either proving they received the vaccine or requesting a medical or religious exemption. At the time of the January 2022 injunction, federal agencies had primarily only gotten to the “education and counseling” stage of the Biden administration’s prescribed progressive discipline process and were just beginning to notify non-compliant employees of suspensions.
A senior Biden administration official declined to say whether the White House and Justice Department would continue to pursue implementation of the mandate, even as the president is set to end the public health emergency in May.
“The federal government successfully implemented a COVID-19 vaccination requirement within the largest employer in the nation, achieving a 98% compliance rate,” the official said. “We continue to believe that vaccination remains one of the most important tools to protect people from serious illness and hospitalizations against COVID-19.”