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Federal Worker Covid Vaccine Challenge to Be Reheard by 5th Cir.

June 27, 2022, 8:09 PM

More than 60 federal workers will get a fresh chance to prevent the Biden administration from enforcing its Covid-19 vaccination requirement against them, a New Orleans-based federal appeals court said Monday.

The US Court of Appeals for the Fifth Circuit granted their petition to rehear the case by the full court. By doing so, the court vacated a divided Feb. 9 ruling by a three-judge panel that lifted an injunction blocking enforcement of the vaccination requirement for federal employees while the lawsuit played out.

The appeals panel ruled 2-1 that the workers and other parties contesting the rule needed to first follow the administrative process laid out in the Civil Service Reform Act for federal employees who raise systemic challenges to adverse personnel actions. Only after doing so may they take claims to court, it said.

The federal workers and others seeking to block the vaccine mandate sued directly in court, bypassing the the Merit Systems Protection Board, and weren’t entitled to an injunction, the panel majority said.

A majority of the Fifth Circuit judges in regular active service qualified to vote agreed to a rehearing en banc, the full court court said in a two-page order.

Feds for Medical Freedom, Local 918 of the American Federation of Government Employees, Highland Engineering Inc., and the workers told the court in a May 21 brief that en banc review was warranted because the CSRA doesn’t prohibit preenforcement challenges to unlawful governmentwide job policies that impose “ongoing constitutional harms.”

The CSRA “says nothing about pre-enforcement challenges to broad policies,” they said. The law instead only “funnels individualized challenges to defined prior adverse employment actions” through the MSPB review scheme, they said,

The view embraced by the panel majority has been called “meritless,” “completely baseless,” and “discredited” by jurists “ranging from Ruth Bader Ginsburg and Harry Edwards to Robert Bork and Antonin Scalia,” they said. It also conflicts with prior decisions by the circuit and the US Supreme Court, they said.

The panel majority’s ruling correctly implemented the justices’ 2012 decision in Elgin v. Dep’t of Treasury, the Biden administration said in a June 2 brief opposing rehearing en banc.

The CSRA sets the exclusive method for federal workers to challenge adverse personnel actions. “Plaintiffs here sought to circumvent” that process, the government said.

Boyden Gray & Associates represents the plaintiff-appellees. The Justice Department represents the US.

The case is Feds for Med. Freedom v. Biden, 5th Cir., No. 22-40043, en banc review granted 6/27/22.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com