In what only can be categorized as a win for liberty and a pushback against an authoritarian president who asserts power he doesn’t have, a federal appeals court has affirmed a lower court’s preliminary injunction against President Joe Biden’s vaccine mandate for federal employees.
Judge Andrew Oldham’s opinion Thursday, joined in whole or in part by nine of his colleagues on the 5th U.S. Circuit Court of Appeals, addressed Biden’s executive order of Sept. 9, 2021, requiring all federal employees to be vaccinated against COVID-19 or face termination.
The case is called Feds for Medical Freedom v. Biden. The president issued a similar order covering federal contractors; however, that order is the subject of a separate lawsuit and was not at issue in this decision by the 5th Circuit, sitting en banc.
Feds for Medical Freedom, which represents more than 6,000 federal employees, filed the lawsuit in conjunction with a chapter of the largest union of federal workers, the American Federation of Government Employees, along with numerous other individual plaintiffs.
A federal district court issued a preliminarily enjoined Biden’s vaccine mandate for federal employees from taking effect in 2022. However, that nationwide injunction was overturned by a divided panel of the 5th Circuit, which claimed the district court didn’t have jurisdiction under the Civil Service Reform Act of 1978
But the full 5th Circuit disagreed with that view, pointing out that the Civil Service Reform Act doesn’t explicitly deprive federal courts of jurisdiction over these types of claims. The appeals court also rejected the Biden administration’s contention that the same law implicitly deprives the courts of jurisdiction after analyzing the text, structure, and purpose of the law.
In essence, the court concluded that although the Civil Service Reform Act deprives federal courts of jurisdiction over routine personnel actions involving individual federal employees within the law’s civil service protections, it doesn’t preclude federal courts’ jurisdiction “over federal employees’ claims outside the CSRA’s covered personnel actions.”
According to the court, the Supreme Court has pointed out that many “actions by supervisors against federal employees, such as wiretapping, warrantless searches, or uncompensated takings, would not be defined as ‘personnel actions’ within the statutory scheme.” The 5th Circuit cited a string of other cases—involving everything from sexual assault to defamation to installing a hidden camera—in which courts held that they were not stripped of jurisdiction under the Civil Service Reform Act.
In implementing the vaccine mandate for federal workers, Biden was not acting within the scope of the law, the 5th Circuit decided. The plaintiffs “are not challenging CSRA-covered personnel actions,” the judges found, but the president’s “executive orders requiring federal employees to make irreversible medical decisions to take COVID-19 vaccines.”
The appeals court also pointed out the fallacy of the government’s trying to rely on a provision in the Civil Service Reform Act covering routine personnel actions such as changes in duties or job responsibilities, appointments, promotions, and reassignments.
All of these “are typical, everyday employment decisions to, say, promote or reassign a single employee,” the court found, “not government-wide mandates that commandeer the personal medical decisions of every federal employee” and result in “an irrevocable decision that extends beyond the term of employment.”
In fact, the court added, “it strains [the law’s] text far beyond its breaking point to say it includes permanent medical decisions made outside the workplace.”
The 5th Circuit also justified its decision by citing the Supreme Court’s 2022 holding in National Federation of Independent Business v. OSHA, in which the high court found that the vaccine mandate promulgated by the Occupational Safety and Health Administration was not an “occupational safety and health standard” within OSHA’s statutory authority.
As the Supreme Court said in that case, it would “expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Similarly, the 5th Circuit concluded, “Congress would need to speak much more clearly to strip … jurisdiction over challenges to a mandate that extends to every single federal employee’s irreversible medical decisions.”
Since the 5th Circuit concluded that the district court did have jurisdiction over the claims made by the plaintiffs challenging Biden’s executive orders, it next considered whether the district court properly issued an injunction against the vaccine mandate.
The appeals court said it was “unpersuaded” by the government’s criticisms of that lower court decision, opining that the district court “carefully considered [the factors necessary for an injunction] and wrote a thorough opinion explaining its decision.” The court added that it “need not repeat the district court’s reasoning, with which we substantially agree.”
The only other issue that the 5th Circuit said warranted additional discussion was “the scope of injunctive relief.” The Supreme Court “has recently stayed nationwide injunctions,” it noted, but “has yet to tell us they’re verboten.”
The 5th Circuit observed that the district court followed the equitable principles that apply in considering the extent of an injunction, noting that “the lead plaintiff in this case [Feds for Medical Freedom] has over 6,000 members spread across every State in the Nation and nearly every federal agency in the entire Government.”
Furthermore, the appeals court said, the plaintiffs had “cited multiple instances” in which the Biden administration “wrongfully targeted unvaccinated federal employees who sought exemptions—despite assurances from the Government that it would not do so.” This led the district court to express its “fears that limiting the relief to only those before it would prove unwieldy and would only cause more confusion.”
Based on that record and “absent binding precedent from the Supreme Court,” the 5th Circuit would not “say that the district court abused its discretion in rejecting the Government’s assurances that it could and would comply with an injunction limited to the plaintiffs’ members.”
Finally, the appeals court emphasized that its decision was only about the preliminary injunction against the vaccine mandate issued by the lower court, which will “maintain the status quo until the parties have the chance to adjudicate the merits.”
When the parties proceed “to the merits” in the district court, it said, “both sides will have to grapple with the White House’s announcement that the COVID emergency will finally end on May 11, 2023.”
Judge James Ho wrote an interesting concurrence with Oldham’s opinion, joined by Judge Edith Jones. While agreeing that the court has jurisdiction and upholding the injunction, Ho noted that one issue the government didn’t raise was whether civil service protections violate a president’s “constitutional authority under Article II to remove his subordinates from office.”
This is an important issue, Ho stated, because a president “actually controls surprisingly little of the Executive Branch” and only “a tiny percentage of Executive Branch employees are subject to Presidential removal.” As a result, the biggest obstacle a president often faces in implementing his or her policies and priorities is the “permanent bureaucracy” who don’t believe “they are duty-bound to carry out the President’s visions.”
In a possible foreshadowing of future challenges to civil service protections, Ho said that, in “an appropriate case, we should consider whether laws that limit the President’s power to remove Executive Branch employees are consistent with the vesting of executive power exclusively in the President.”
Judge Stephen Higginson, joined by Judge Leslie Southwick, agreed that the court had jurisdiction but dissented from affirming the injunction against the vaccine mandate for federal employees. Higginson argued that the court should decide the case on the merits and deny relief to the federal employees because Biden acted within his constitutional authority as the chief executive when he required them to be vaccinated.
Many federal employees will be watching as this case proceeds to trial. Even if the vaccine mandate ends, one issue will remain—whether the federal employees who were terminated for not complying with Biden’s executive order are entitled to get their jobs back.
And the answer to that question could affect the lives and livelihoods of countless Americans.
This piece originally appeared in The Daily Signal