COVID-19 vaccine mandate for US federal employees reinstated by appeals court

By on 11/04/2022 | Updated on 11/04/2022
Bottles of the COVID-19 vaccine against a blue background
President Joe Biden mandated COVID-19 vaccines for around 3.5 million federal staff and government contractors in September. Photo by Maksim Goncharenok via Pexels

The Biden administration has won an appeal allowing it to reinstate its coronavirus vaccine mandate for the government workforce, after it was forced to pause the policy following a court ruling in January.

Last week, a US Court of Appeals of the Fifth Circuit panel instructed the Texas district court that had issued the January injunction to dismiss the case upon remand, ruling that procedures outlined in the Civil Service Reform Act for complaints had not been followed and that as a result, the decision did not stand.

President Joe Biden signed an executive order mandating vaccines for around 3.5 million federal staff and government contractors in September. Employees were told they must be fully vaccinated or face the possibility of disciplinary action “up to and including removal from service”.  

However, the US Court for the Southern District of Texas issued an injunction against the mandate, ruling that the Biden administration exceeded its authority by issuing it. Judge Jeffrey Brown said the case was not about whether people should be vaccinated but “instead about whether the president can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law […] is a bridge too far”.  

Read more: Exclusive: public servants in favour of COVID-19 vaccine mandates by small margin, GGF survey finds

Judge Brown explained that he based his ruling on the Supreme Court’s 13 January decision to block an Occupational and Health Administration emergency order requiring companies with more than 100 employees to ensure their staff are either vaccinated against the disease or tested regularly.  

“Applying that same logic to the president’s authority… means he cannot require civilian federal employees to submit to the vaccine as a condition of employment,” he wrote.

Go first to the Merit Systems Protection Board, say judges

On 7 April, a US Court of Appeals of the Fifth Circuit panel instructed the Texas court to dismiss the case. It did not consider whether or not the president has the legal authority to implement such an intervention but instead ruled that the plaintiffs – the recently-formed Feds For Medical Freedom and a union representing some Homeland Security Department employees – did not follow the required procedure in pursuing their case.

They should have brought their case to the Merit Systems Protection Board (MSPB) or Office of Special Counsel as laid out in the Civil Service Reform Act, rather than to a district court, according to the panel, which argued that federal employees cannot seek relief before incurring a workplace penalty, and must go before the MSPB only after an adverse action.

“You don’t get to come in and challenge in advance,” said Charles Scarborough, the Justice Department attorney arguing on behalf of the government.

Judge Carl Stewart noted that the Fifth Circuit previously ruled that the Civil Service Reform Act precluded district courts from adjudicating federal statutory and constitutional claims. Fellow judge James Dennis agreed.

The plaintiffs 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.” 

The third judge on the panel, 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”.  

Scarborough 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. 

“The court’s decision is good news,” a spokesperson from the White House’s Office of Management and Budget said on the day of the appeal court’s ruling. “Based on the prior implementation of the requirement for 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.”

According to the White House, at the time the injunction came into force in January, 98% of federal employees were in compliance with the mandate, meaning they had either had the vaccine or had been granted or were seeking an exemption on religious or medical grounds. More than 93% had received at least one jab.

Global Government Forum will publish a more in-depth article on perceptions of COVID-19 vaccine mandates for civil and public servants this week. Make sure you receive it by signing up to Global Government Forum’s email news bulletin.

About Mia Hunt

Mia is a journalist and editor with a background in covering commercial property, having been market reports and supplements editor at trade title Property Week and deputy editor of Shopping Centre magazine, now known as Retail Destination. She has also undertaken freelance work for several publications including the preview magazine of international trade show, MAPIC, and TES Global (formerly the Times Educational Supplement) and has produced a white paper on energy efficiency in business for E.ON. Between 2014 and 2016, she was a member of the Revo Customer Experience Committee and an ACE Awards judge. Mia graduated from Kingston University with a first-class degree in journalism and was part of the team that produced The River newspaper, which won Publication of the Year at the Guardian Student Media Awards in 2010.

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