By VICTOR SKINNER
THE CENTER SQUARE CONTRIBUTOR
(The Center Square) — A federal appeals court in New Orleans has reversed a lower court ruling that blocked an executive order from President Joe Biden requiring all federal employees to be vaccinated against COVID-19.
A three-judge panel with the 5th Circuit Court of Appeals ruled 2-1 to reverse a federal court ruling in Texas in January that imposed a nationwide injunction against the vaccine requirement for federal employees.
The appeals court found on Thursday that U.S. District Judge Jeffrey Brown did not have jurisdiction in the case because the federal employees who sued over the requirement could pursue remedies through the Merit Systems Protection Board, created by Congress through the Civil Service Reform Act (CSRA) to operate as an internal court system for federal agencies.
The majority also found “the plaintiffs’ claim for preliminary injunction relief fails because they have not shown a substantial likelihood of success on the merits.”
“We do not reach the parties’ arguments regarding the other requirements for a preliminary injunction,” Judge Carl E. Stewart wrote for the majority.
The appeals court ruling came about two months after a different panel on the same appeals court refused to lift the injunction. Judge Brown issued his ruling in January just as federal agencies were preparing disciplinary action against employees who failed to comply with the vaccine mandate.
“The court’s decision is good news,” an Office of Management and Budget spokesperson told The Washington Post on Friday. “Based on the prior implementation of the requirement for the 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.”
President Biden issued the executive order on September 9, 2021 and gave employees until November 22, 2021 to comply or apply for an exemption, though the deadline was later extended to early 2022. The Office of Management and Budget said in early December that 97.2% of federal employees had complied with the executive order, with 92.5% having received at least one dose of the COVID-19 vaccine and the remainder with pending or approved exemption requests.
Every federal agency reported a compliance rate of over 95% by early February, according to the White House.
Judge Rhesa Hawkins Barksdale dissented from the appeals court ruling because he argued the CSRA offers appeal rights to employees only after an agency has taken disciplinary action against employees, and the case involved about 6,000 federal employees with Feds for Medical Freedom who sought to strike down the mandate before it went into effect.
“The EO’s enactment … does not constitute an adverse action subject to CSRA. The case at hand is instead a pre-enforcement challenge to a government-wide policy, imposed by the President, that would affect the 2.1 million federal civilian workers, including the 6,000 members of Feds for Medical Freedom,” Judge Barksdale wrote.
“Relief plaintiffs seek does not fall within the purpose of CSRA. Enacting the EO and then requiring federal civilian employees who may later receive adverse action to seek relief now through CSRA would result in the very type of lengthy and haphazard results CSRA was enacted to prevent.”
The White House on Thursday ordered federal agencies not to begin enforcing the mandate because “there are still procedural steps that need to take place to lift the injunction,” according to a message sent to agency officials cited by the Post.
“At this time the district court’s preliminary injunction remains in effect,” the message read.