Editor’s Note: Two decisions have just been issued on the COVID mandate for federal employees. Both are discussed in this article. Each decision has been linked in the article so readers can read either or both decisions.
President Biden ordered all federal employees, with limited exceptions, to receive COVID-19 vaccinations. The mandatory vaccination requirement applied to federal employees who were teleworking and to remote workers as well as those working in an office.
It is an understatement to write that many federal employees intensely disliked the COVID mandate.
Beginning of the Federal Employee Vaccine Mandate
In 2021, President Biden issued an executive order instituting a COVID vaccine mandate for federal employees. According to the White House Press Secretary, federal employees had 75 days to get vaccinated. If an employee was not vaccinated and did not fall within the narrow exclusions, the employee could be fired.
According to the White House, the federal employee vaccine mandate was a model for what the Biden administration had decided that other businesses and organizations should do in response to COVID.
The program proved to be unpopular. Presumably, the administration did not anticipate the resistance the president’s Executive Order would generate. The aftermath of the Executive Order resulted in numerous court decisions, proposed legislation to overturn the mandate, and considerable political fallout for the White House.
Two Courts, Two Decisions, Different Conclusions on COVID Mandate
In two new case decisions, two Courts have issued different decisions. This article is a brief summary of each of these decisions.
The first case is from the Court of Appeals for the District of Columbia. The second case is from the Court of Appeals for the Fifth Circuit.
Federal Employee Precluded from Going Directly to Court to Challenge COVID Mandate
On November 22, 2021—the day federal employees were required to be vaccinated—Jason Payne filed suit in District Court, challenging the mandate’s constitutionality.
Jason Payne is a federal civilian employee who works as an engineer for the Office of Naval Research, in the Department of the Navy. He has been a member of the civil service for over two decades.
In his lawsuit, he said he had contracted COVID-19 and recovered. In his view, he “acquir[ed] natural immunity against the disease.” Payne refused to accept the COVID-19 vaccination mandated by . . . [D]efendants” pursuant to the Executive Order.
His initial filing was not successful. The District Court found his claims were precluded under the Civil Service Reform Act (CSRA) and dismissed his suit for lack of subject matter jurisdiction. Payne v. Biden, 602 F. Supp. 3d 147, 151 (D.D.C. 2022)
Late in 2022, he filed an appeal with the Court of Appeals for the District of Columbia. A decision was issued by the Court of Appeals on March 21, 2023.
The Court of Appeals affirmed the decision of the District Court.
Rationale for the DC Appeals Court Decision
According to the Court of Appeals:
The law is clear that where the CSRA provides judicial review, it does so exclusively. Thus, in finding that Mr. Payne may proceed through the CSRA’s scheme, we necessarily find that should Mr. Payne choose to continue challenging the vaccine mandate, he must do so through the CSRA’s scheme. Such is the nature of an “exclusive avenue to judicial review.” (Elgin v. Department of Treasury, 567 U.S. 1, 5 (2012).)
Payne claimed the vaccine mandate violated the separation of powers and his Fifth Amendment right to privacy, and placed an unconstitutional condition on his employment. The District Court concluded that his claims could be a challenge to either “working conditions” under Chapter 23 of the CSRA, or a termination decision under Chapter 75 of the CSRA.
Because he could obtain administrative and judicial review under either chapter of the CSRA, the District Court concluded the CSRA applied to the case and dismissed the case for lack of jurisdiction.
The Court of Appeals agreed with this analysis. According to the Court:
All attempts to characterize his argument as anything but a challenge to adverse employment action fail for jurisdictional purposes, because Mr. Payne himself admits that his standing to challenge the vaccine mandate is rooted in the looming disciplinary action he now faces as a result of his continued noncompliance. In other words, Mr. Payne challenges the vaccine mandate to maintain his employment while continuing to defy the mandate that he views as unlawful.
By reframing the issue as ‘whether the CSRA removes district court jurisdiction’”’ as opposed to ‘whether it permits it,’ Mr. Payne attempts to introduce nuance where none exists.
CSRA at Issue: It Does Not Preclude Court Review
The second decision just issued on the COVID mandate was recently issued by the Fifth Circuit. As in the case reviewed by the Court of Appeals for the District of Columbia, the issue largely revolves around the Civil Service Reform Act.
This case reviewed a preliminary injunction issued against the COVID mandate. It is not a ruling on the merits of the issue.
The initial decision, in this case, was issued by the District Court for the Southern District of Texas. The Fifth Circuit wrote: “The primary question presented is whether we have jurisdiction over pre-enforcement challenges to President Biden’s vaccine mandate for federal employees. We do.”
The Court wrote:
It’s undisputed that plaintiffs’ claims arise under federal law, both constitutional and statutory. It’s also undisputed that the CSRA nowhere expressly repeals district courts’ § 1331 jurisdiction over plaintiffs’ claims. The Government’s contention, however, is that the CSRA implicitly repeals §1331 jurisdiction over plaintiffs’ claims.
Citing a decision by the Supreme Court in Bush v. Lucas, 462 U.S. 367, 385 n.28 (1983), the Fifth Circuit wrote “In accordance with this express command, federal courts across the country have time and again held that the CSRA does not strip § 1331 jurisdiction when federal employees challenge something other than a CSRA-covered personnel action.”
In other words, a federal employee must challenge an action taken under the CSRA under the provisions of that statute. A federal employee is free, however, to challenge other actions taken outside of the CSRA in a district court.
Arguments by the Federal Government on COVID Mandate
In this case, the Government claimed that allowing those filing the suit to bring suits in district court would undermine the CSRA’s purpose of creating “an integrated scheme of review.” The same argument was made in the first case decision outlined above.
The Fifth Circuit concluded that this assertion was “quite odd”. For example, in some “mixed cases,” there may be an argument against a CSRA claim as well as a claim of discrimination. In these cases, “Both Congress and the Supreme Court say that federal employees are free to bring their mixed cases in district court without ever dealing with the MSPB or the Federal Circuit in any way.”
In this case, ruled the Court, “We hold plaintiffs are not challenging CSRA-covered personal actions. Plaintiffs are challenging…the President’s executive orders requiring federal employees to make irreversible medical decisions to take COVID-19 vaccines. ‘Even construing the CSRA’s language broadly, we fail to see how an employer’s’ medical mandate could constitute a covered personnel action.”
Limitations on the Court’s Decision
The Fifth Circuit emphasized that this case decision is an affirmation of a preliminary injunction. The purpose is to maintain the status quo until the parties have a chance to adjudicate the merits.
When the parties proceed to the merits in the district court, the plaintiffs will have to prove that whatever injunction they request is broad enough to protect against their proven injuries and no broader. And the Government will have another chance to show that any permanent injunction should be narrower than the preliminary one. And both sides will have to grapple with the White House’s announcement that the COVID emergency will finally end on May 11, 2023.
In other words, if it is not already obvious, this case is not yet resolved. Perhaps an appearance at the Supreme Court is in the future although the White House has already announced that the COVID emergency will end on May 11, 2023.
