The United States Court of Appeals for the Fifth Circuit has agreed to an en banc hearing of the Feds for Medical Freedom case against President Biden’s federal employee vaccine mandate.
The group announced the decision today on social media.
In a previous opinion issued in April, a panel of the court had said in a 2-1 decision that the judge in a lower court did not have authority to issue the injunction on the federal employee vaccine mandate. The 5th Circuit panel said that federal employees challenging the president’s vaccine mandate would have to do so through administrative remedies under civil service law.
That original ruling issued by a lower court in Texas placed an injunction on the vaccine mandate, thereby blocking further enforcement of the vaccine mandate on the part of the federal government. Once issued, the Biden administration said that it would halt enforcement of the federal employee vaccine mandate.
However, now that the Appeals Court has agreed to hear the case, it will go back before the full court. The decision issued on June 27 states, “It is ordered that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs. Pursuant to 5th Circuit Rule 41.3, the panel opinion dated April 7, 2022, is VACATED.”
In other words, the executive order with the vaccine mandate still cannot be enforced while the new court hearing is pending.
What is likely to happen in the near term? It’s hard to know for sure. Federal employment attorney and FedSmith author Mathew Tully wrote recently:
Looking ahead, however, the longer the vaccine mandate sits in legal limbo, the more concerns around COVID-19 will continue to die down, which, if contained enough, could result in the vaccine mandate becoming something of a non-issue, not requiring reasonable accommodations/exemptions. That being said, with midterms coming up in November, it would not be surprising to see matters concerning COVID-19 vaccine mandates return to the national spotlight. However, with many federal employees’ livelihoods at stake, it is reasonable to assume that there will be more finalized directions given to agencies with regards to either processing or voiding these requests before then.Will Federal Agencies Resume Enforcement of the Federal Employee Vaccine Mandate?
He also advised federal employees to keep an eye on what happens in court.
The Biden administration has said before that approximately 98% of all federal employees are in compliance with the vaccine mandate, having received the required number of vaccinations or were granted or seeking an exemption.