McCray v. Biden: Federal Judge Denies Request to Enjoin the Vaccine Mandate
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
On December 7, 2021, a federal judge of the U.S. District Court for the District of Columbia denied a federal employee’s motion for a temporary restraining order. The employee sought to enjoin enforcement of the President’s executive orders directing federal agencies to require COVID-19 vaccination for federal employees and contractors, and requested the court declare that the President’s orders were unlawful.
The employee works as a full-time computer programmer for the Internal Revenue Service (IRS) and as a part-time network operations support contractor for the Department of Defense (DOD). The employee claimed that he was “unvaccinated and opposes receiving the COVID-19 vaccine.” He also claimed that he was “naturally immune to coronavirus” because he “has already recovered from COVID-19.” Although the employee admitted he was “not under the direct care of any doctor,” he raised a concern that “the President’s order mandate [he] inject himself with vaccines known to have increased risks of heart inflammation in males of his age group,” which concerned him because he had previously suffered two heart attacks in 2013.
The employee alleged that the orders must be invalidated for four reasons. First, because they “cite the COVID-19 public health emergency as…justification,” and, according to the employee, the government fraudulently portrayed the pandemic as severe to justify the declaration of a public health emergency.
Second, the employee contended that the President’s orders violated his Fifth Amendment right to substantive due process and bodily integrity.
Third, the employee contended that the orders “deprive him of his Fifth Amendment right to equal protection” because “[h]e maintains that the government has unlawfully discriminated on the basis of natural immunity to COVID-19, because the order treats individuals with (what he claims are) similar forms of immunity differently by requiring the termination of individuals who have naturally acquired immunity but not those with vaccine-induced immunity.”
Finally, the employee contended for similar reasons that the President’s orders violated the Administrative Procedure Act because they were allegedly “arbitrary, unlawful, contrary to constitutional rights, unsupported by substantial evidence, and without observance of procedure.”
The court found that it lacked subject-matter jurisdiction because “it has no power to enjoin the President” and because the employee’s claims were “not yet ripe for adjudication.
According to the court, the “central defect in [the employee’s] complaint is that the only defendant against whom he seeks declaratory and injunctive relief is the President of the United States.” Thus, the court was left to evaluate whether judicial injunctive relief against the President is available at all, in any case. The court cited to Supreme Court and D.C. Circuit precedent that “cast doubt on the availability of injunctive relief as a remedy” against the President, including an 1867 case, Mississippi v. Johnson, where the State of Mississippi sued to enjoin President Andrew Johnson “from executing or in any manner carrying out…the Reconstruction Acts.” In that case, the Supreme Court “invoked fundamental principles of separation of powers” in observing that neither Congress as the legislative department or the President as the executive department can be “restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.” Thus, the Court held in that case that “this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.”
The district court cited subsequent Supreme Court cases citing “favorably” to that analysis, while leaving open the door to the question of “whether the President might be subject to a judicial injunction requiring the performance of a purely ‘ministerial’ duty.”
But in any event, the district court found that it “need not decide whether the judicial power might in truly extraordinary circumstances permit a Court to enjoin the President, because –by any measure—this is not such a case.” According to the Court, neither executive order qualified as “a ministerial action,” and were instead “discretionary actions undertaken as part of the President’s official duties.” Thus, the district court held that “under controlling Supreme Court and D.C. Circuit precedent, the Court concludes that [the employee] lacks standing to seek an injunction or declaratory judgment against the President, and so the Court lacks Article III jurisdiction over this case—at least as it is currently framed.” The district court noted that “the proper course is to seek to enjoin a member of the executive branch from carrying out the executive order at issue, not the President.”
However, the court also observed that “[e]ven if [the employee] were to amend his complaint to enjoin officials other than the President,” his claims would still not be ripe because his employer had not yet denied his application for a medical exemption from the COVID-19 vaccine requirement. As such, the employee’s claims were required to be dismissed because they “fail[ed] to identify a non-speculative dispute that is ripe for adjudication.”
For the above stated reasons, a federal district court judge denied the employee’s motion for a temporary restraining order, and dismissed the employee’s complaint.
Read the full opinion: McCray v. Biden.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.