COVID-19 vaccine mandate for federal workers back in effect after appeals court lifts injunction

New Orleans — The 5th U.S. Circuit Court of Appeals ended a district court’s injunction against the Biden administration’s COVID-19 vaccine mandate for federal employees on jurisdictional grounds, with a 2-1 decision April 7.

President Joe Biden signed Executive Order 14043 on Sept. 9, which initially gave federal employees until Nov. 30 to get vaccinated or obtain an exemption. That deadline was later pushed back to the new year. Judge Jeffrey Vincent Brown from the U.S. District Court for the Southern District of Texas issued the injunction Jan. 21.

In the appeals court opinion, Judge Carl E. Stewart writes that courts aren’t the venue to challenge “an adverse employment action” in this case because of the Civil Service Reform Act of 1978 and the Supreme Court’s decision in Elgin v. Department of Treasury in 2012.

Under the CSRA, federal employees can appeal to the Merit Systems Protection Board after an adverse action (such as termination) is taken against them. The majority write that the employees also “could have challenged an agency’s proposed action against them before filing this suit and certainly before getting vaccinated” by filing a complaint with the Office of Special Counsel.

“There is no dispute that the plaintiffs have not attempted to avail themselves of this potential CSRA remedy, which could provide meaningful review,” wrote Stewart, who was joined in the majority by Judge James L. Dennis.

In his dissent, Judge Rhesa H. Barksdale contends that what the plaintiffs were seeking “does not fall within the purpose of CSRA.”

He explains: “Enacting the EO and then requiring federal civilian employees who may later receive adverse action to seek relief now through CSRA would result in the very type of lengthy and haphazard results CSRA was enacted to prevent.”

Barksdale also argues that 5 USC 7513 doesn’t apply to the plaintiffs because that concerns agency actions instead of presidential ones.

“Section 7513 references individual employees; here, the president seeks to require an entire class of employees to be vaccinated or be subject to an adverse action,” he writes. “Simply put, CSRA does not cover preenforcement employment actions, especially concerning 2.1 million federal civilian employees. The district court, therefore, had subject-matter jurisdiction to hear plaintiffs’ claims.”

Opponents of the mandate will seek an en banc hearing before all of the 5th Circuit’s judges, according to an April 13 report from Government Executive. If that hearing is granted, it could mean the injunction is reinstated.

During a Jan. 21 press briefing, White House Press Secretary Jen Psaki said 98% of federal workers are in compliance with the mandate.