Vaccine Mandate for Federal Employees Resumes as 5th Circuit Vacates Preliminary Injunction
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
Oliver Contreras | AP
President Biden issued Executive Order 14043 on September 9, 2021, which required COVID-19 vaccination for executive branch employees. The Order states that “[e]ach agency shall implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” President Biden issued the Order “[b]y the authority vested in him as President by the Constitution and the laws of the United States of America.”
The Order also established the Safer Federal Workforce Task Force to provide guidance on implementing the mandate. On September 13, 2021, the Task Force published guidance instructing agencies that non-exempt employees who do not have exemption requests pending and who are not vaccinated must be subject to escalating disciplinary procedures including counseling, suspension, and termination.
Feds for Medical Freedom, a 6,000-member organization, subsequently challenged the Order in federal court. They moved for a nationwide preliminary injunction, arguing that the Order exceeded the President’s authority. The district court agreed. It granted the preliminary injunction and, as a result, paused the vaccine mandate for federal employees nationwide. The Government appealed to the United States Court of Appeals for the 5th Circuit.
A preliminary injunction may only be granted if the party seeking the injunction establishes “(1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threated injury outweighs any harm that will result to the non-movant if the injunction is granted; and (4) the injunction will not disserve the public interest.” The Government argued on appeal that the district court lacked jurisdiction to hear the case at all because it was precluded by the Civil Service Reform Act of 1978 (“CSRA”).
The CSRA established “comprehensive and exclusive procedures for settling work-related controversies between federal civil-service employees and the federal government.” The CSRA provides federal employees with administrative and judicial review of adverse employment actions. It distinguishes, though, between employees facing “proposed” adverse actions and those who have already suffered adverse action. If an employee is facing a proposed adverse action, the employee is entitled to notice, an opportunity to respond, legal representation, and written notice of reasons supporting the agency’s adverse action. It is not until the employing agency finalizes the adverse action, though, that the employee may appeal to the Merit Systems Protection Board (“MSPB”). After the employee appeals to the MSPB, he or she may appeal to the United States Court of Appeals for the Federal Circuit.
The Court noted that the CSRA provided administrative and judicial review for federal employees with “painstaking detail” and, therefore, it is likely that that Congress intended to deny federal employees “an additional avenue of review in district court.” It further noted that there is no exception to the CSRA when a federal employee brings a constitutional claim within the context of a challenged employment action.
When applying the CSRA to the challenge against the vaccine mandate for the federal workforce, the Court agreed with the Government that the CSRA precluded the district court’s jurisdiction. First, an employee against whom an adverse action is proposed is entitled to notice and opportunity to be heard, not the right to appeal. Only once the adverse action is taken can the employee appeal to the MSPB. Here, any adverse action against the plaintiffs was merely proposed and, therefore, the plaintiffs are the employees “to whom the CSRA denies statutory review.”
Next, the court clarified that the CSRA offers the plaintiffs meaningful opportunity for judicial review outside of the district courts. First, employees against whom adverse actions are taken can adjudicate the adverse actions as well as their constitutional claims in the MSPB and, importantly, they can next appeal to the Federal Circuit, a federal court of appeals. The court noted that the MSPB has the authority and expertise to review constitutional claims and that preliminary questions of the validity of the employment action may result in disposal of the constitutional claims.
Additionally, plaintiffs have the ability to file a complaint with the Office of Special Counsel, where they can argue that the Order constitutes a “prohibited personnel practice” that affects “a significant change in duties, responsibilities, or working conditions.” Notably, the CSRA prohibits agencies from taking any “personnel action” that treats employees without “proper regard for their privacy and constitutional rights.”
The court summarized that “the relief the plaintiffs seek is, in effect, to avoid discharge for refusing to comply with” the Order, and this “sort of employment-related relief is precisely the kind of relief the CSRA empowers the MSPB and the Federal Circuit to provide.” As a result, the court concluded that the CSRA precluded the district court’s jurisdiction and, as a result, the plaintiffs’ claim for a preliminary injunction must fail because they did not show a substantial likelihood of success on the merits. For those reasons, the court vacated the preliminary injunction.
Find the full case here: Feds for Medical Freedom v. Biden.
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