Federal appeals court upholds ban on vaccine mandate for federal employees

A ten-judge majority of the 5th Circuit's 17 judges upheld a 2022 decision that blocked the vaccine mandate nationwide.

A federal appeals court decided Thursday that a nationwide ban on President Biden’s COVID vaccine mandate for federal employees will stay in place.

The decision by the 5th U.S. Circuit Court of Appeals upholds a January 2022 ruling by a federal district court judge in Texas that found federal workers who sued the Biden Administration over the vaccine mandate were likely to succeed on the merits of their case, and were entitled to a nationwide preliminary injunction to block the vaccine requirement while courts continue to adjudicate the vaccine mandate’s legality.

In Thursday’s opinion, the ten-judge majority of the 17-member court didn’t explicitly answer the underlying question in the lawsuit brought by Feds for Medical Freedom: whether the president has the authority to make vaccination a condition of employment for federal workers.

Instead, they said they were answering narrower questions, such as whether cases like this are within the jurisdiction of federal courts at all, and whether the Civil Service Reform Act (CSRA) requires employees who object to the vaccine to raise their objections in administrative venues like the Merit Systems Protection Board (MSPB).

But Judge Andrew Oldham, writing for the majority, said the clear answer is that employees at least had the right to sue in this case, because requiring what he termed an “irreversible medical procedure” is drastically different than the cases MSPB normally hears: “personnel actions” like promotions, reassignments and salary changes.

“The text and structure of the CSRA creates a decades-old, well-established, bright-line rule: Federal employees must bring challenges to CSRA-covered personnel actions through the CSRA, but they remain free to bring other challenges under the district courts’ general jurisdiction,” he wrote.

The seven dissenting justices wrote two separate opinions that broke down into two camps: one agreeing that Feds for Medical Freedom was allowed to sue, but that the district court was wrong to block the vaccine mandate, and another arguing that the lawsuit should have been completely barred by the CSRA.

“The president, as head of the federal executive workforce, has authority to establish the same immunization requirement that many private employers imposed to ensure workplace safety and prevent workplace disruptions caused by COVID-19,” Judge Stephen Higginson wrote in an opinion representing the first of those camps.

Another dissenting opinion argued the 5th Circuit decided the case wrongly because the CSRA gives federal employees plenty of ways to challenge whatever adverse personnel actions might come their way — including the right to appeal to the Court of Appeals for the Federal Circuit — and that they shouldn’t be allowed to sue the government to block their employer from enforcing its personnel policies before they’re actually enforced.

“This remedial scheme is intricate and as the Supreme Court has recognized, ‘given the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court,’” Judge Carl Stewart wrote in a separate dissent joined by three other judges.

Thursday’s ruling is by no means the final word on whether President Biden — or any president — is legally permitted to issue vaccine mandates for civilian employees. Those questions will need further litigation at the district court level, in other federal circuits, and perhaps eventually at the U.S. Supreme Court.

“The government will have another chance to show that any permanent injunction should be narrower than the preliminary one,” Oldham wrote. “And both sides will have to grapple with the White House’s announcement that the COVID emergency will finally end on May 11, 2023.”

Thursday’s 5th Circuit decision is significant because it maintains an injunction that barred the vaccine mandate across the country, but other federal circuits have reached different legal conclusions when faced with similar cases.

At least a dozen other federal district courts have rejected legal challenges to the federal employee mandate. The 4th Circuit and D.C. Circuit appellate courts have decided cases in ways that conflict with Thursday’s 5th Circuit opinion, and another case dealing with the federal employee vaccine mandate is still pending before the 3rd Circuit.


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