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On the Alert

ENDED: Nationwide injunction of
federal employee vaccine mandate

Feds for Medical Freedom v. Biden (5th Cir 04/07/2022)
http://case.lawmemo.com/5/feds.pdf
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 authority.

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 injunction.

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 merely "proposed."

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 exclusive.

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."

The DISSENT 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."


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