By Mimi Nguyen Ly
A federal appeals court has halted the Biden administration’s COVID-19 vaccine mandate for federal workers nationwide.
The U.S. Court of Appeals for the Fifth Circuit in New Orleans ruled (pdf) in an en banc hearing on Thursday to keep a preliminary injunction on the COVID-19 vaccine mandate in place amid ongoing litigation over the matter.
En banc is a legal term that means a case is heard by the entire bench of a court, rather than just by a panel of judges selected from the bench.
The latest move by the full appeals court of 16 full-time judges reverses a previous ruling that was made by a smaller panel of judges from the same appeals court. That three-judge panel had ruled in April 2022 to uphold the COVID-19 vaccine mandate for federal workers.
President Joe Biden in September 2021 issued an executive order requiring federal workers to get COVID-19 vaccines, otherwise they would face disciplinary actions, which might include being fired. The order permitted exceptions for religious and medical reasons.
U.S. District Judge Jeffrey Brown, a Trump appointee in January 2022 ordered the preliminary injunction on the vaccine mandate. At the time, the Biden administration said nearly 98 percent of covered employees had been vaccinated against COVID-19.
The case moved to the 5th Circuit. The majority ruling by a three-judge panel in April 2022 overturned Brown’s decision and determined that the plaintiffs should have taken their complaints elsewhere. Specifically, Judge Carl Stewart, a Clinton appointee, wrote in the majority decision that the Civil Service Reform Act (CSRA) of 1978 “precludes district court adjudication of federal statutory and constitutional claims.”
Under the CSRA, federal workers facing adverse actions may appeal to an entity called the Merit Systems Protection Board, which decides whether the worker was properly disciplined. If the worker prevails, the board can order an agency to reinstate the worker or undertake other measures. Employees who disagree with the board can appeal to a federal appeals court.
At the time, Judge Rhesa Barksdale, a George H.W. Bush appointee, dissented from the majority and said that Biden’s vaccine executive order doesn’t constitute an alleged adverse action subject to the CSRA.
Exceeded His Authority
The full appeals court on Thursday found that the case falls outside the jurisdiction of the CSRA because the federal workers are challenging the vaccine mandate on the grounds that Biden exceeded his authority.
The majority of the court rejected arguments from the Biden administration that the president has the same authority as a CEO of a private corporation to mandate vaccinations for its employees.
“Plaintiffs’ complaint does not challenge any personnel action reviewable under the CSRA. Nor does it challenge any personnel action they could hypothetically incur in the future,” Judge Andrew Oldham, a Trump nominee, wrote in Thursday’s opinion (pdf) for a 10-member majority. “Rather, plaintiffs claim that the President’s vaccine mandate violates the U.S. Constitution and the Administrative Procedure Act.”
Oldham and the majority said that federal law does not apply to “private, irreversible medical decisions made in consultation with private medical professionals outside the federal workplace.”
Judge Stephen Higginson, an Obama nominee, wrote the main dissenting opinion.
“For the wrong reasons, our court correctly concludes that we do have jurisdiction,” Higginson wrote. “But contrary to a dozen federal courts—and having left a government motion to stay the district court’s injunction pending for more than a year—our court still refuses to say why the President does not have the power to regulate workplace safety for his employees.”
Moving forward, Judge Oldham noted, “When the parties proceed to the merits in the district court, the plaintiffs will have to prove that whatever injunction they request is broad enough to protect against their proven injuries and no broader.
“And the Government will have another chance to show that any permanent injunction should be narrower than the preliminary one.
“And both sides will have to grapple with the White House’s announcement that the COVID emergency will finally end on May 11, 2023.”
Zachary Stieber contributed to this report.