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Fifth Circuit lifts injunction against Biden administration’s federal employee vaccine mandate

Federal employees facing discipline for rejecting President Joe Biden’s COVID vaccine mandate must go through an administrative process before turning to the D.C. Circuit, the Fifth Circuit ruled late Thursday, vacating an injunction against the edict.

Feds for Medical Freedom formed last year to oppose the Biden administration’s COVID-19 vaccine fiats, and dozens of its more than 6,000 members sued Biden, his Cabinet and other federal officials on Dec. 21 in federal court in Galveston.

The lawsuit focused on Biden’s executive order, issued in September, for federal agencies to require the vaccines which the White House said was needed to ensure the health, safety and efficiency of the nation’s more than 2.1 million civil service workers.

Stressing no president in U.S. history has required civil servants to undergo a medical procedure as a condition of employment, Feds for Medical Freedom convinced U.S. District Judge Jeffrey Brown, a Trump appointee, to block the mandate with a nationwide preliminary injunction in January.

When the mandate was blocked the White House said roughly 95% of federal workers had already complied with it.

The Biden administration appealed to the Fifth Circuit with a Justice Department attorney arguing  the objectors lack standing because the Civil Service Reform Act of 1978 dictates they must challenge any punishment they receive for eschewing the vaccine through an administrative process administered by the U.S. Merit Systems Protection Board, an independent, quasi-judicial federal agency.

In a 2-1 ruling Thursday, a Fifth Circuit panel agreed with the government. It vacated the injunction and ordered dismissal of the case.

Writing for the majority, U.S. Circuit Judge Carl Stewart found the lower court erred by determining the CSRA was inapplicable because it only comes into play after a federal employee suffers a major adverse action such as a suspension, termination or pay cut.

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After initially setting an inoculation deadline of Nov. 22 for employees who had not asked for medical or religious exemptions, the government pushed it back to early 2022. By late January, none of the plaintiffs had yet to be penalized, though one, an Agricultural Department employee, had received a notice of an impending suspension.

In imposing the injunction, Judge Brown agreed with the objectors that denying their ability to challenge the mandate before it was enforced denied them meaningful review.

Stewart disagreed.

He said the CSRA provides recourse, including legal representation, to federal employees facing proposed discipline and once they are punished they can appeal to the Merits System Protection Board to have their claims heard by its administrative judges.

If they are dissatisfied with the merits board’s decision they can seek judicial review, Stewart wrote, but only from one court: the D.C. Circuit.

“The Federal Circuit’s jurisdiction over such appeals is ‘exclusive,’” wrote Stewart, citing the Supreme Court’s 2012 decision in Elgin v. Department of Treasury.

U.S. Circuit Dennis James joined Stewart’s 14-page majority opinion. They are both Bill Clinton appointees.

In a short dissent, U.S. Circuit Judge Rhesa Barksdale said the CSRA only pertains to workers facing discipline from their employing federal agency.

“Here, there is no agency action. Rather, the President is attempting to impose a sweeping mandate against the federal civilian workforce,” the George H.W. Bush appointee wrote.

Feds for Medical Freedom’s attorney Trent McCotter, with the Washington firm Boyden Gray & Associates, did not respond late Thursday to a request for comment.

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But the group indicated in a statement it might petition the Fifth Circuit for an en banc review of the injunction vacatur by all the appellate court’s 17 judges.

The White House’s Office of Management and Budget applauded the ruling and underlined why it wants all federal employees to be vaccinated against COVID-19.

“Based on the prior implementation of the requirement for the largest and most occupationally diverse workforce in the country, we know vaccination requirements save lives, protect our workforce, and strengthen our ability to serve the American people,” an OMB spokesperson said in an email.

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