Celebrating our 23rd year. Serving employment lawyers,
union representatives, and labor arbitrators.
ENDED: Nationwide injunction of
Feds for Medical Freedom v.
Biden (5th Cir 04/07/2022)
Sent to Custom Alerts™
subscribers on 04/09/2022
The President's Executive Order
14043 mandates COVID-19 vaccination for all executive branch
employees, subject to medical and religious exceptions. Several
plaintiffs filed suit, alleging that the President exceeded his
The district court found that the plaintiffs
were likely to succeed on the merits of their claim and that the
equities favored them. It therefore preliminarily enjoined
enforcement of the Order nationwide.
The 5th Circuit (2-1)
reversed, holding that the Civil Service Reform Act of 1978 (CSRA)
precluded the district court's jurisdiction. The court vacated the
The court pointed out that the CSRA
distinguishes between employees against whom an agency has taken
"final adverse action" and those for which adverse action is
Only those against whom an agency has
taken "final adverse action" are entitled to judicial review. Once
an agency finalizes an adverse action, the employee may appeal to
the Merit Systems Protection Board (MSPB). An employee who is
dissatisfied with the MSPB’s decision is entitled to judicial
review in the United States Court of Appeals for the Federal
Circuit.The Federal Circuit’s jurisdiction over such appeals is
The court said: "Critically, in this case, any
adverse action against the plaintiffs remains 'proposed.' They are
thus entitled to 'notice, representation by counsel, an
opportunity to respond, and a written, reasoned decision from the
agency' under § 7513(b), not administrative review under §
7513(d). In other words, the plaintiffs are 'employees to whom the
CSRA denies statutory review.' Congress intended 'to entirely
foreclose judicial review to' such employees."
argued that the "CSRA does not cover pre-enforcement employment
actions, especially concerning 2.1 million federal civilian
employees. The district court, therefore, had subject-matter
jurisdiction to hear plaintiffs' claims."
Newest employment law court
Want them? Get them.
Employment Law Memo gets them to you first.
Custom Alerts™ get them to your exact criteria.
Get four weeks. Free. No hassle. No risk.
Get your 28 day