On April 7, 2022, in a split decision, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit issued its decision in Feds for Medical Freedom et al. v. Biden et al., ___ F.3d ____, No. 22-40043. The court cancelled the nationwide injunction blocking the COVID mandate for federal civil service employees, meaning that the COVID mandate is now back in full force for many federal civil service employees.
As previously analyzed in this blog, the COVID mandate required federal employees to be vaccinated or face discipline leading up to removal for failure to demonstrate that they had been vaccinated for COVID-19, unless the employee requested or received reasonable accommodation. In January 2022, before most agencies had begun major discipline against federal employees for violation of the mandate, a federal district court in Texas issued an injunction blocking enforcement of the vaccination mandate against federal civil service employees. That decision was appealed to the 5th Circuit, which originally declined to block the injunction in a February 2022 decision, keeping the injunction in place while the appeal was pending but setting the case for expedited briefing.
In its April 7th decision, the panel voted 2-1 to cancel the injunction on procedural grounds, finding that the present civil service system set up by the Civil Service Reform Act of 1978 did not allow employees to seek pre-discipline relief in court in this fashion. Instead, employees who wanted to challenge the mandate would either have to wait until they suffered major disciplinary actions (including removal), then proceed through administrative processing at the Merit Systems Protection Board, and only then go to court, or alternatively seek pre-adverse action redress which the majority asserted was available through the Office of Special Counsel—both mechanisms following the structure set up by the Civil Service Reform Act. In dissent, Judge Barksdale reasoned that the plaintiffs’ challenge was not to a personnel action covered by the Civil Service Reform Act, but instead a challenge to the vaccine mandate policy itself under Executive Order 14,043.
With the district court’s injunction now nullified, the COVID mandate comes back into full force for many federal civil service employees. Certain specific categories of federal civil service employees (for example, Postal Service employees), federal contractors, and other employees were not covered by this specific injunction, and so the April 7th decision from the 5th Circuit leaves their status vis a vis the COVID mandates unchanged.
The 5th Circuit’s decision is potentially subject to appeal, either for en banc review by the full 5th Circuit or for appeal to the Supreme Court.
If you are a federal civil service employee or federal contractor and require legal guidance or representation for requesting a reasonable accommodation for a disability or based on religious beliefs, believe you may be facing disciplinary action for choosing to not obtain a COVID vaccine, or otherwise have questions regarding your legal rights, please consider contacting Gilbert Employment Law, P.C. to request an initial consultation.
