An Appeals Court Appears Open to Reinstating Biden's COVID-19 Vaccine Mandate for Feds

By Eric Katz

March 8, 2022

A federal appeals court on Tuesday appeared open to reinstating President Biden’s COVID-19 vaccine mandate, suggesting a lower court’s pause may have been overly broad. 

Without weighing in on the merits of the case, Judge Carl Stewart—one of the three judges on the U.S Court of Appeals for the Fifth Circuit panel reviewing Feds for Medical Freedom v. Biden—said during oral arguments the injunction at a “bare minimum” should not apply on a nationwide basis. At most, he said, only those named defendants should win temporary relief. R. Trent McCotter, an attorney at Boyden, Gray and Associates, countered that the newly formed group he represented had thousands of members all over the country, but Stewart called that argument “very questionable” and said it did not satisfy him. 

Federal agencies are largely not currently enforcing Biden's executive order requiring employees to either receive the vaccine or request a medical or religious exemption, following a district court in Texas issuing the injunction in January. About 98% of federal employees were in compliance with Biden’s executive order at the time of the injunction, with 93% vaccinated. With some exceptions, agencies have paused punishing non-compliant workers or adjudicating requests for religious or medical exemptions. The Fifth Circuit court previously declined to stay the injunction after the Biden administration sought emergency relief. 

Charles Scarborough, the Justice Department attorney arguing on behalf of the government, faced pointed questions during the oral arguments on Tuesday, particularly from Judge Rhesa Barksdale. Scarborough sought to deflect concerns over the lack of precedent for a governmentwide vaccine mandate or any medical procedure, noting previous presidents have implemented orders impacting conditions of work such as drug and ethics policies. As Justice has in previous briefs on the case, Scarborough said the president is the CEO of the executive branch and therefore has the authority to issue mandates for its workforce. Federal employees cannot seek relief before actually incurring a workplace penalty, he added, as the Civil Service Reform Act sets up a system by which civil servants must go before the Merit Systems Protection Board only after an adverse action. 

“You don’t get to come in and challenge in advance,” Scarborough said, noting the current system allows employees to win back pay if they successfully bring a challenge to MSPB. 

When judges suggested the mandate could create a precedent for the executive branch to regulate the "status" of an employee rather than their "conduct," which could in turn lead to wide-ranging requirements, Scarborough said the market would act as a natural constraint.  

The president “can’t propose things that are crazy and outlandish and far-fetched like some of the examples the plaintiffs have offered up here because you’ll lose employees,” he said. “The federal workforce has a hard enough time competing with private employers on things like pay. We don’t want to do things that would further handicap ourselves and that is a significant limiting principle.”

When asked about mask mandate repeals and lower case rates recently seen across the country, Scarborough said the mandate is a key part of the Biden administration’s plan to bring employees back to their offices after two years of widespread remote work. The administration has said the injunction left agencies scrambling to rework their return-to-office plans, as they were designed assuming enforcement of the mandate. Additionally, the White House estimated it will spend up to an extra $5 million per week the injunction is in place on testing unvaccinated employees for COVID-19. Those costs will likely grow as newly hired federal employees are similarly no longer subject to a mandate, the White House said, and the government typically hires more than 20,000 new employees per month.

McCotter, the attorney representing the group that brought the case against the vaccine mandate, said that the requirement represented ongoing and unlawful coercion. He warned of the precedent set by the mandate, should it remain in effect, saying the court should not simply trust the president to “not do anything crazy” in the future. 

Opponents of Biden’s mandate for federal workers have pursued more than a dozen cases seeking to strike down the order, but have yet to find success in any other court. Courts have paused or struck down the president's orders affecting large private employers and federal contractors. The Fifth Circuit judges did not spell out a timetable for issuing a decision in the federal employee case, but one is expected in the coming weeks. Scarborough implored the judges to weigh in on the administration's emergency request for a stay on the injunction. The Biden administration has asked the court to at least limit the scope of the pause, a request the panel appeared open to accepting.

By Eric Katz

March 8, 2022

https://www.govexec.com/workforce/2022/03/appeals-court-appears-open-reinstating-bidens-covid-19-vaccine-mandate-feds/362901/