Friday, January 21, 2022: Biden Administration’s Vaccination Efforts Restricted to Just Mandate as to Healthcare Workers as Court Enjoins Executive Order Requiring Vaccination of Federal Employees
In the latest round of defeat for the Biden Administration’s efforts to vaccinate the American workforce, the U.S. District Court for the Southern District of Texas on Friday issued a nationwide injunction against President Biden’s Executive Order mandating all federal workers consent to vaccination or face termination. Feds for Medical Freedom, et al. v. Biden, et al., Case No. 3:21-cv-00356 (S.D. Tex. January 21, 2022). Sitting in Texas, unsurprisingly Judge Jeffrey V. Brown’s opinion relied extensively on the Fifth Circuit Court of Appeals’ ruling against the OSHA ETS in BST Holdings, LLC v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021). The substantive effect of Judge Brown’s ruling means the federal government has fewer rights than a private employer to require vaccination of its employees.
The Backdrop: President Biden issued Executive Order 14043 (the “Executive Order”) requiring civilian employees of the federal government to become vaccinated against COVID-19 or lose their employment, with exceptions only as required by law. While noting that individuals should get vaccinated against COVID-19, Judge Brown determined that EO 14043, without the input of Congress, was “a bridge too far.”
Judge Brown began by rejecting the Biden Administration’s procedural defenses alleging the court lacked jurisdiction to hear the claims. First, the Biden Administration argued that the Civil Service Reform Act of 1978 (the “Act”) precluded plaintiffs’ claims in the case did not have merit. Specifically, the government argued plaintiffs could not bring their action before the Court because the Act provided the exclusive means of relief for employees objecting to any significant change in duties, responsibilities, or working conditions of their employment. However, Judge Brown determined “working conditions” generally related to only the daily, concrete parameters of a job, such as hours of work, discrete assignments, and provision of necessary equipment and resources. As such, mandatory vaccination did not constitute the “working conditions” of plaintiffs’ employment. [Well, that is a bit of a stretch for Judge Brown.] Furthermore, requiring plaintiffs to wait until they were terminated to challenge the mandate would create an irreparable injury to plaintiffs.
Secondly, the court also rejected the Biden Administration’s contention that the court lacked jurisdiction to hear the case because none of the plaintiffs’ claims were “ripe.” However, Judge Brown found that because many of the plaintiffs had already received letters suggesting that suspension or termination was imminent, received letters of reprimand, or have faced other negative consequences, the threat to plaintiffs was “actual and imminent, not conjectural or hypothetical.”
Determining the court had jurisdiction to hear the claims, Judge Brown then held that plaintiffs were entitled to injunctive relief staying the Executive Order. First, Judge Brown found that allowing implementation of the Executive Order would result in irreparable harm to plaintiffs by requiring them to face a decision between their jobs or vaccination. Furthermore, the court found the Executive Order’s effect of barring plaintiffs from significant employment opportunities in their chosen profession also constituted irreparable harm. The court did not provide any argument to the public policy concerning an employer’s ability to set the terms and conditions of employment. Nor did the court address how loss of employment could constitute irreparable harm given that nothing restricted plaintiffs from seeking other employment with any of the other thousands of employers that exist nationwide.
Second, once Judge Brown held that irreparable harm existed, he then determined that plaintiffs were likely to succeed on the merits of their claims. Judge Brown found that none of the statutory bases the Biden Administration relied upon to issue the vaccine mandate authorized the President’s action, holding that: (1) 5 U.S.C. § 3301 applied only to applicants for civil service; (2) 5 U.S.C. § 3302 was limited in scope and did not permit the President to prescribe a vaccine mandate; and (3) 5 U.S.C. § 7301 only permitted regulation of workplace conduct, whereas a person’s vaccination amounted to their “status” and constituted conduct that occurs outside the workplace. Additionally, Judge Brown found that Article II of the Constitution did not grant the President power to impose medical procedures on civilian federal employees.
Finally, Judge Brown determined that the plaintiffs’ interests outweighed the public interest in vaccinating the workforce given that over 88% of the federal workforce had received at least one vaccine dose. Thus, Judge Brown reasoned that imposing the injunction would not have a serious detrimental effect on the fight to stop COVID-19 since the federal workforce was already mostly vaccinated. Additionally, termination of unvaccinated employees would result in a loss of vital services necessary to serve the public, Judge Brown found.
This case is especially noteworthy since with this vaccination mandate, President Biden was operating at the zenith of his delegated powers to order a vaccination mandate. Article II, Section 1 of the United States Constitution grants the President, among other things, the ability to manage and operate the federal government: “The executive Power shall be vested in a President of the United States of America.” Boom. That is the way Section 1 starts. Once sworn in as President, federal employees are his employees. So, this ruling is a bit surprising, except that governmentally imposed vaccination mandates are so unpopular and this decision hails from the sovereign state of Texas (formerly the “Republic of Texas”).
This latest ruling follows a long line of defeats for the Biden Administration in its efforts to increase COVID-19 vaccination. However, this case is unique in ruling as to the substantive ability of the federal government to manage its own workforce. While this decision applies only to the federal workforce, private employers should be cognizant of the reasoning behind this ruling given that it provides a “roadmap” for those employees seeking to bring suit to stop private employer vaccine mandates. This case decision also alerts employers to arguments a prospective litigant could make and prepares them to carefully draft their vaccination mandates to possibly avoid the pitfalls of the Biden mandate.
