Agencies will soon be able to start punishing unvaccinated workers.
A federal appeals court has reinstated President Biden’s COVID-19 vaccine mandate for the federal workforce, overturning a lower court’s nationwide pause that had been in effect since January.
The plaintiffs who brought their suit over Biden’s executive order did not have standing in the federal circuit, a panel of the U.S Court of Appeals for the Fifth Circuit said in a 2-1 opinion Thursday evening, and instead must pursue their appeals through the Merit Systems Protection Board or Office of Special Counsel as laid out in the Civil Service Reform Act. The court vacated the injunction and instructed the district court in Texas that issued it to dismiss the case upon remand.
Federal agencies are largely not currently enforcing Biden's executive order requiring employees to either receive the vaccine or request a medical or religious exemption, following a district court in Texas issuing the injunction in January. About 98% of federal employees were in compliance with Biden’s executive order at the time of the injunction, with 93% vaccinated. With some exceptions, agencies have paused punishing non-compliant workers or adjudicating requests for religious or medical exemptions. The Fifth Circuit court previously declined to stay the injunction after the Biden administration sought emergency relief.
The Biden administration quickly appealed the district court decision in Feds for Medical Freedom v. Biden, arguing last month that previous presidents had implemented orders impacting conditions of work such as drug and ethics policies. Charles Scarborough, the Justice Department attorney arguing on behalf of the government, said the president is the CEO of the executive branch and therefore has the authority to issue mandates for its workforce. He added that market constraints would prevent the president from abusing that power.
Those arguments were not addressed in the majority’s opinion, however, which instead rested on another of the government’s points: that federal employees cannot seek relief before actually incurring a workplace penalty, as the Civil Service Reform Act sets up a system by which civil servants must go before MSPB only after an adverse action.
“You don’t get to come in and challenge in advance,” Scarborough said, noting the current system allows employees to win back pay if they successfully bring a challenge to MSPB.
Judge Carl Stewart, who wrote the ruling on behalf of himself and Judge James Dennis, noted that the Fifth Circuit previously ruled that the Civil Service Reform Act precluded district courts from adjudicating federal statutory and constitutional claims.
The plaintiffs—the newly created Feds for Medical Freedom and a union representing some Homeland Security Department employees—were seeking “to circumvent the [Civil Service Reform Act’s] exclusive review scheme,” Stewart said. “There is no dispute that the plaintiffs have not attempted to avail themselves of this potential [civil service act] remedy, which could provide meaningful review.”
Judge Rhesa Barksdale dissented on the decision, saying there was not yet any agency action for employees to appeal to MSPB. Instead, he argued, the matter hinged on Biden’s attempt to “impose a sweeping mandate against the federal civilian workforce.”
The decision will likely cause a new wave of work at federal agencies, though it could also save them some money. The administration has said the injunction left agencies scrambling to overhaul their return-to-office plans, as they were designed assuming enforcement of the mandate. Additionally, the White House estimated it will spend up to an extra $5 million per week the injunction is in place on testing unvaccinated employees for COVID-19.
Agencies had been on the precipice of enforcing the mandate through suspensions when the injunction was ordered. The administration’s Safer Federal Workforce Task Force will likely oversee the reimplementation of the mandate, though the White House did not immediately respond to a request for comment. Feds for Medical Freedom, which could seek further appeal before the full Fifth Circuit or the Supreme Court, declined to comment on Thursday. Individual employees could still wind up in the federal circuit if they take their cases to MSPB and appeal further after an initial decision. The Supreme Court may be less inclined to weigh in on the case, as it already ruled on two vaccine mandate cases in January.
Opponents of Biden’s mandate for federal workers have pursued more than a dozen cases seeking to strike down the order, but have yet to find success in any other court. Courts have paused or struck down the president's orders affecting large private employers and federal contractors.