Opponents to Appeal the Fed Vaccine Mandate as the Biden Administration Pushes Court to Allow Immediate Suspensions

Adam Schultz/White House

An appeals court struck down an injunction on the federal employee vaccine requirement, but it is not set to take effect for six weeks.

The Biden administration is pushing a court to allow it to immediately resume enforcing its COVID-19 vaccine mandate for federal employees, though opponents are resisting the effort and plan to further appeal last week’s ruling that reinstated the requirement. 

While the U.S. Court of Appeals for the Fifth Circuit’s decision overruled a lower court that had paused the mandate, a standard buffer period remains in place before the ruling takes effect. That is preventing the Biden administration from moving forward with its suspensions and firings of employees who have failed to either get the vaccine or request a medical or religious exemption until May 31. The Justice Department asked the appeals court to stay the nationwide injunction the lower court issued in January, or move up the date that its order take effect. 

Feds for Medical Freedom and a union representing some Homeland Security Department employees—the plaintiffs in the case—on Wednesday asked the court to deny the administration's request, arguing there was no need to bypass the normal procedures. The court previously denied a request for an emergency stay, its attorneys noted, and the government has proven there is no irreparable harm in delaying enforcement as it previously did so on its volition. At least 98% of federal employees are already in compliance with Biden’s executive order. 

Additionally, R. Trent McCotter, the plaintiffs’ attorney, said his clients will request a rehearing from the full panel of Fifth Circuit. When such an en banc hearing is granted, the court often delays implementation of the ruling previously issued by its three-judge panels. In this case, that could mean allowing the injunction to remain in place while it rehears the arguments. 

If the administration were permitted to resume enforcement of its mandate immediately only to be “whipsawed” back to pausing its punishments, McCotter said, it would create “mass confusion and chaos” for employees and agencies alike. He further argued it would create “tremendous logistical” problems to unwind suspensions and firings if the court ultimately ruled against the mandate. 

For its part, the administration noted the court already said it is likely to prevail on the merits of the case and it should be able to resume implementation of the mandate while any further appeals take place. 

“So long as the preliminary injunction remains in effect, the need for emergency relief persists,” the Justice attorneys said. 

In a 2-1 decision last week, the three-judge panel said the plaintiffs did not have standing in the federal circuit and must instead pursue their appeals through the Merit Systems Protection Board or Office of Special Counsel as laid out in the Civil Service Reform Act. The court vacated the injunction and instructed the district court in Texas that issued it to dismiss the case upon remand, though that order is not currently set to take effect until the end of May. 

While 98% of the federal workforce has gone along with Biden’s order, agencies are still looking to move forward with discipline for the tens of thousands of workers who have failed to comply. They are also hoping to resume adjudication of the roughly 5% of the workforce that has requested an exemption. Most agencies are bringing employees back to their offices in April or May and had hoped to ensure all non-exempted workers were vaccinated as they did so. The White House has estimated it will spend up to an extra $5 million per week the injunction is in place on testing unvaccinated employees for COVID-19. Agencies had been on the precipice of enforcing the mandate through suspensions when the injunction was ordered.

“Feds for Medical Freedom continues to explore every available legal avenue to prevent what we see as the unconstitutional and immoral implementation of the vaccine mandates aimed at federal employees and contractors,” said Marcus Thornton, the group’s president. 

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