Posted on 01/21/2022 9:13:07 AM PST by ducttape45
Just the links for now. More to follow but I wanted to get this out there.
Trump-Appointed Judge Blocks Biden’s Vaccine Mandate For Federal Contractors Nationwide
God I hope I got those links correct.
That was over a month ago
You did.
L
Sorry, second link was over a month ago
Thanks for pointing that out. Yes it was, I just thought I’d include both links so anyone wondering about that aspect of it as well, but the first link is indeed the important one. I’m forwarding that to my civilian personnel office to see what they have to say.
Yeah this is all well and good but as a federal employee I have already been forcefully vaccinated.
The mandate for Fed contractors was separate from the one for fed workers.
Many thanks; I’ve been looking for the link to where the judge blocked the fed contractors mandate.
Sadly its one thing to make a ruling another to enforce it.
So SCOTUS decrees healthcare workers must still obey our beloved ruler’s unconstitutional mandate?
what is not said, stated, hinted, nor reported, is this question: “Where is the AFGE in all of this? Does not the AFGE have a say in the protection of its union members from government overreach? Or has it become just another bedpartner of the federal government, and remaining a federal workers union in name only, (but keep paying those dues!)
Hey, that’s my date! Hands off!
Shoot. The AFGE wussed out long ago. They won’t fight anything except what pads their pockets. Completely worthless.
The second link was. The first one is an order issued on january 21
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IN THE UNITED STATES DISTRICT COUR FOR THE SOUTHERN DISTRICT OF TEXA
GALVESTON DIVISION
âÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂ
No. 3:21-cv-356
âÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂ
FEDS FOR MEDICAL FREEDOM, ET AL., PLAINTIFFS,
v.
JOSEPH R. BIDEN, JR., ET AL., DEFENDANTS.
âÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂ
MEMORANDUM OPINION AND ORDER
âÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂâÂÂ
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:
The plaintiffs have moved the court to preliminarily enjoin the enforcement of
two executive orders by the President. The first, Executive Order 14042, is already the subject of
a nationwide injunction. Because that injunction protects the plaintiffs from imminent harm, the
court declines to enjoin the first order. The second, Executive Order 14043, amounts to
a presidential mandate that all federal employees consent to vaccination against COVID-19
or lose their jobs. Because the PresidentâÂÂs authority is not that broad, the court will enjoin the
second orderâÂÂs enforcement.
The court notes at the outset that this case is not about whether folks should get vaccinated
against COVID-19âÂÂthe court believes they should. It
United States District Court
Southern District of Texas
ENTERED
sner, Clerk
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is not even about the federal governmentâÂÂs power, exercised properly, to mandate
vaccination of its employees. It is instead about whether the President can, with the
stroke of a pen and without the input of Congress, require millions of federal employees to undergo
a medical procedure as a condition of their employment. That, under the current state of the law as
just recently expressed by the Supreme Court, is a bridge too far.
I
Background
In response to the COVID-19 pandemic, the Biden Administration has put out four mandates requiring
vaccination in various contexts. Earlier this month, the Supreme Court ruled on challenges to two
of those mandates. For one, a rule issued by the Occupational Safety and Health
Administration (OSHA) concerning businesses with 100 or more employees, the Court
determined the plaintiffs would likely succeed on the merits and so granted preliminary relief. See
NatâÂÂl FedâÂÂn Indep. Bus. v. OSHA, 595 U.S. (2022) [hereinafter NFIB]. For the second, a
rule issued by the Secretary of Health and Human Services concerning healthcare facilities
receiving Medicare and Medicaid funding, the Court allowed the mandate to go into effect. See Biden
v. Missouri, 595 U.S. (2022).
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In this case, the plaintiffs challenge the other two mandates. One compels each business
contracting with the federal government to require its employees to be vaccinated or lose its
contract. Exec. Order No. 14042, Ensuring Adequate COVID Safety Protocols for Federal
Contractors, 86 Fed. Reg. 50,985 (Sept. 9, 2021). Because that order has been
enjoined nationwide, Georgia v. Biden, No. 1:21-CV-163, 2021 WL 5779939, at *12 (S.D. Ga. Dec.
7, 2021), this court declines to grant any further preliminary relief. The other mandate requires
that all federal employees be vaccinatedâ or obtain a religious or medical exemptionâÂÂor else
face termination. See Exec. Order No. 14043, Requiring Coronavirus Disease 2019 Vaccination for
Federal Employees, 86 Fed. Reg. 50,989 (Sept. 9, 2021) [hereinafter federal- worker mandate].
The federal-worker mandate was issued last year on September 9. At first, federal agencies were to
begin disciplining non-compliant employees at the end of November. But as that date
approached, the government announced that agencies should wait until after the new year. See
Rebecca Shabad, et. al, Biden administration wonâÂÂt take action against unvaccinated federal
workers until next year, NBC News (Nov. 29, 2021).1 The court
1 Available at https://www.nbcnews.com/politics/white-house/biden-
administration-delay-enforcement-federal-worker-vaccine-mandate-until-next- n1284963.
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understands that the disciplining of at least some non-compliant employees is now imminent.
Before this case, the federal-worker mandate had already been challenged in
several courts across the country, including this one. See Rodden v. Fauci, No.
3:21-CV-317, 2021 WL 5545234 (S.D. Tex. Nov. 27,
2021). Most of those challenges have fallen short due to procedural missteps by the plaintiffs or a
failure to show imminent harm. See, e.g., McCray v. Biden, No. CV 21-2882 (RDM), 2021 WL 5823801,
at *5âÂÂ9 (D.D.C. Dec. 7,
2021) (denied because plaintiff tried to directly enjoin the President and did not have a ripe
claim).
This case was filed by Feds for Medical Freedom, Local 918, and various individual
plaintiffs on December 21. Dkt. 1. The next day, the plaintiffs moved for a
preliminary injunction against both mandates. See Dkt. 3. At a scheduling conference on
January 4, the court announced it would not consider preliminary relief on Executive Order No.
14042 while the nationwide injunction was in effect. Dkt. 14, Hrg. Tr. 7:8âÂÂ8:11. The court then
convened a telephonic oral argument on January 13, shortly before the Supreme Court ruled on
the OSHA and healthcare-worker mandates. See Dkt. 31. At that hearing, both sides agreed that
the soonest any plaintiff might face discipline would be January 21. Dkt. 31, Hrg. Tr. 4:11âÂÂ5:5.
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II
Jurisdiction
The government2 mounts two challenges to the courtâÂÂs jurisdiction: that the Civil
Service Reform Act precludes review and that the plaintiffsâ claims are not ripe.
1. Civil Service Reform Act
âÂÂUnder the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. ç 1101 et seq., certain federal
employees may obtain administrative and judicial review of specified adverse employment actions.âÂÂ
Elgin v. DepâÂÂt of Treasury, 567
U.S. 1, 5 (2012). The government maintains that the CSRA, by providing an exclusive means of
relief, precludes the plaintiffsâ claims in this case. Dkt. 21 at 8âÂÂ12. Specifically, the
government argues that by challenging the vaccine mandate, the plaintiffs are disputing a
âÂÂsignificant change in duties, responsibilities, or working conditions,â which is an issue
exclusively within the province of the CSRA. Id. at 11 (quoting 5 U.S.C. ç 2302(a)(2)(A)(xii)).
Unfortunately, the CSRA does not define âÂÂworking conditions.â But the interpretation that courts
have given that term would not encompass a requirement that employees subject themselves to
an unwanted vaccination. Rather, âÂÂthese courts have determined that the term âÂÂworking
conditionsâÂÂ
2 Throughout this memorandum opinion, the court will refer to all the
defendants, collectively, as âÂÂthe government.âÂÂ
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generally refers to the daily, concrete parameters of a job, for example, hours, discrete
assignments, and the provision of necessary equipment and resources.â Turner v. U.S.
Agency for Glob. Media, 502 F. Supp. 3d 333, 367 (D.D.C. 2020).
The government also argues that the CSRA applies âÂÂto hypothetical removals or
suspensions.â Dkt. 21 at 11 (citing 5 U.S.C. ç 7512). But, contrary to the governmentâÂÂs
suggestion, the statute says nothing about âÂÂhypotheticalâ adverse employment
actions. See 5 U.S.C. ç 7512. Rather, it applies to actual discipline, whether that be firings,
suspensions, reductions in pay, or furloughs. See id. Indeed, neither the Merit Systems Protection
Board (the administrative body charged with implementing the CSRA) nor the Federal Circuit (which
hears CSRA appeals) has jurisdiction until there is an actual adverse employment action.3
Esparraguera v. Dep’t of the Army, 981 F.3d 1328, 1337âÂÂ38 (Fed. Cir. 2020).
3 The government relies on two Fifth Circuit cases as support for its contention that
the CSRA applies to the plaintiffsâ claims in this case. But in both of those cases, unlike
this one, the plaintiffs had already suffered an adverse employment action and were not
seeking prospective relief. See Rollins v. Marsh, 937 F.2d 134, 136 (5th Cir. 1991); Broadway v.
Block, 694 F.2d 979, 980âÂÂ81 (5th Cir. 1982). Moreover, the D.C. Circuit has held repeatedly that
pre-enforcement challenges to government-wide policiesâÂÂsuch as the mandates at issue hereâÂÂdo not
fall within the scheme of the CSRA. See, e.g., Nat’l Treasury Emps. Union v. Devine, 733 F.2d 114,
117 n.8 (D.C. Cir. 1984) (allowing âÂÂpreenforcement judicial review of rulesâ over CSRA objections);
NatâÂÂl FedâÂÂn of Fed. Emps. v. Weinberger, 818 F.2d, 935, 940 n.6 (D.C. Cir. 1987) (discussing the
right of federal employees
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Finally, central to the Supreme CourtâÂÂs holding in Elgin was the idea that employees must be
afforded, whether under the CSRA or otherwise, âÂÂmeaningful reviewâ of the discipline they
endure. Elgin, 567 U.S. at 10. But requiring the plaintiffs to wait to be fired to challenge the
mandate would compel them to âÂÂto bet the farm by taking the violative action before testing the
validity of the law.â Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 490 (2010)
(cleaned up). As the Fifth Circuit has held, the choice between oneâÂÂs âÂÂjob(s) and
their jab(s)â is an irreparable injury. BST Holdings, L.L.C. v. OSHA, 17 F.4th 604,
618 (5th Cir. 2021). To deny the plaintiffs the ability to challenge the mandate
pre-enforcement, in district court, is to deny them meaningful review. The CSRA does not deprive
the court of jurisdiction over these claims.
2. Ripeness
The government also argues that the court lacks jurisdiction because none of the plaintiffsâÂÂ
claims are ripe. See Dkt. 21 at 12âÂÂ14. Some of the plaintiffsâ claimsâÂÂthose who have
asserted a religious or medical exemption from the mandateâÂÂare indeed at least arguably unripe. See
Rodden, 2021
to seek injunctive relief through the courts where agencies cannot act); Nat’l Treasury
Emps. Union v. Horner, 854 F.2d 490, 497 (D.C. Cir. 1988) (allowing judicial review for
employees who did not have access to the Merit Systems Protection Board).
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WL 5545234, at *2 (the claims of plaintiffs whose exemption claims remain unresolved are as yet
âÂÂtoo speculativeâÂÂ).4 But the government insists that even plaintiffs who have not claimed
exemptions do not have ripe claims because âÂÂfederal employees have ample
opportunities to contest any proposed suspension or removal from employment through a
multi-step administrative process.â Dkt. 21 at 13.
The government pushes the ripeness doctrine too far. Absent a valid exemption request, at least
some plaintiffs face an inevitable firing. See, e.g., Dkt. 35, Exhibit 39 at 4 (federal employer
claiming that employeeâÂÂs failure to provide evidence that he is fully vaccinated âÂÂwill not be
toleratedâÂÂ). The court does not have to speculate as to what the outcome of the
administrative process will be. Many plaintiffs have not only declined to assert any
exemption but have also submitted affidavits swearing they will not. The court takes them
at their word. Many of these plaintiffs already have received letters from their employer
agencies suggesting that suspension or termination is imminent, have received letters of
reprimand, or have faced
4 There is some dispute as to whether some plaintiffs who have asked for an exemption are in
danger of being disciplined even while their exemption requests are still pending. Though in
Rodden this court ruled that plaintiffs who had claimed exemptions did not yet face imminent
harm, that ruling was based largely on the specific representations of the agencies for which those
plaintiffs worked that there would be no discipline before the exemption claims were resolved. But
because there are plaintiffs here who have not claimed exemptions, the court need not sort out that
dispute.
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other negative consequences. Dkt. 3, Exhibits 15âÂÂ18, 20), 26âÂÂ27. To be ripe, the threat a plaintiff
faces must be âÂÂactual and imminent, not conjectural or hypothetical.â Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009). And in the context of preliminary relief, âÂÂa plaintiff must show
that irreparable injury is not just possible, but likely.â June Med. Servs. L.L.C. v. Russo, 140
S. Ct. 2103, 2176 (2020) (Thomas, J., dissenting). Because at least some of the plaintiffs have met
that burden, the governmentâÂÂs ripeness allegations are unfounded. The court has jurisdiction.
III
Injunctive Relief
A preliminary injunction is âÂÂan extraordinary remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.â Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 22 (2008). âÂÂA plaintiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
the public interest.â Id. at 20.
1. Threat of irreparable injury
Because injunctive relief is an extraordinary tool to be wielded sparingly, the
court should be convinced the plaintiffs face irreparable harm
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before awarding it. See Booth v. Galveston Cnty, No. 3:18-CV-00104, 2019 WL 3714455, at *7 (S.D.
Tex. Aug. 7, 2019), R&R adopted as modified, 2019 WL 4305457 (Sept. 11, 2019). The court is so
convinced.
As noted above, the Fifth Circuit has already determined that the HobsonâÂÂs choice
employees face between âÂÂtheir job(s) and their jab(s)â amounts to irreparable harm. OSHA, 17
F.4th at 618. Regardless of what the conventional wisdom may be concerning vaccination, no
legal remedy adequately protects the liberty interests of employees who must choose
between violating a mandate of doubtful validity or consenting to an unwanted medical
procedure that cannot be undone.
The Fifth Circuit has also held that the reputational injury and lost wages employees
experience when they lose their jobs âÂÂdo not necessarily constitute irreparable harm.â Burgess v.
Fed. Deposit Ins. Corp., 871 F.3d 297, 304 (5th Cir. 2017). But when an unlawful order bars those
employees from significant employment opportunities in their chosen profession, the harm becomes
irreparable. Id.
The plaintiffs have shown that in the absence of preliminary relief, they are likely to suffer
irreparable harm.
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2. Likelihood of success on the merits
The court does not decide today the ultimate issue of whether the federal-worker mandate
is lawful. But to issue a preliminary injunction, it must address whether the claim is likely
to succeed on the merits. The plaintiffsâ arguments fall into two categories: (1) that the
PresidentâÂÂs action was ultra vires as there is no statute authorizing him to issue the mandate and
the inherent authority he enjoys under Article II is not sufficient, and (2) that the agenciesâÂÂ
implementation of his order violates the Administrative Procedures Act (APA).5 Each argument will
be addressed in turn.
a. Ultra vires
⢠Statutory authority
The government points to three statutory sources for the PresidentâÂÂs
authority to issue the federal-worker mandate: 5 U.S.C. çç 3301, 3302, and
5 The government maintains that the plaintiffs cannot challenge the mandate as
ultra vires, leaving the APA as their only vehicle to attack it. An action is not ultra vires, the
government argues, unless the President âÂÂacts âÂÂwithout any authority whatever.âÂÂâ Dkt. 21 at 25
(quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 n.11 (1984) (cleaned
up)). âÂÂBecause the âÂÂbusinessâ of the âÂÂsovereignâ certainly encompasses issuing [this] kind
of directive,â the government contends, there is no room for ultra vires review. Dkt. 21 at
25âÂÂ26. But the governmentâÂÂs argument misinterprets the law concerning judicial review of
presidential action: executive orders are reviewable outside of the APA. See Franklin v.
Massachusetts, 505 U.S. 788, 828 (1992) (Scalia, J., concurring) (âÂÂ[r]eview of the
legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers
who attempt to enforce the President’s directiveâÂÂ); see also Halderman, 465 U.S. at 101 n.11
(âÂÂ[A]n ultra vires claim rests on the officerâÂÂs lack of delegated power.âÂÂ) (citation
omitted).
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7301. None of them, however, does the trick.
Section 3301, by its own terms, applies only to âÂÂapplicantsâ seeking âÂÂadmission . . .
into the civil service.â 5 U.S.C. ç 3301. The statutory text makes no reference to
current federal employees (like the plaintiffs). And other courts have already held that
whatever authority the provision does provide is not expansive enough to include a vaccine
mandate. See, e.g., Georgia, 2021 WL 5779939, at *10; Kentucky v. Biden, No. 3:21-CV-55, 2021 WL
5587446, at *7 (E.D. Ky. Nov. 30, 2021), affâÂÂd, No. 21-6147, 2022 WL
43178 (6th Cir. Jan. 5, 2022).
Section 3302 provides that the âÂÂPresident may prescribe rules governing the
competitive service.â 5 U.S.C. ç 3302. That language sounds broad until one reads the next
sentence: âÂÂThe rules shall provide, as nearly as conditions of good administration warrant, for . .
. (1) necessary exceptions of positions from the competitive service; and (2) necessary exceptions
from the provisions of sections 2951, 3304(a), 3321, 7202, and 7203 of this title.â Id. When the
cross-referenced provisions are checked, it becomes evident that the âÂÂrulesâ the President may
prescribe under ç 3302 are quite limited. For example, he may exempt certain employees from
civil-service rules and from certain reports and examinations, and he may prohibit marital
and
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disability discrimination within the civil service. But not even a generous reading of
the text provides authority for a vaccine mandate.
The final statutory authority on which the government relies is ç 7301, which provides in its
entirety: âÂÂThe President may prescribe regulations for the conduct of employees in the
executive branch.â 5 U.S.C. ç 7301. According to the government, âÂÂthe act of becoming
vaccinatedâ is âÂÂplainly âÂÂconductâÂÂâ within the meaning of the statute. Dkt. 21 at 27.
But the plaintiffs argue that rather than regulate âÂÂconduct,â the federal- worker mandate compels
employees to assume a vaccinated âÂÂstatus,â and âÂÂone that is untethered to job requirements,
no less.â Dkt. 3 at 12. Moreover, the plaintiffs contend, even if becoming vaccinated is
âÂÂconduct,â it is not âÂÂworkplace conduct,â which is all that ç 7301 reasonably
authorizes the President to regulate. Dkt. 23 at 12.
Assuming that getting vaccinated is indeed âÂÂconduct,â the court agrees with the plaintiffs that
under ç 7301, it must be workplace conduct before the President may regulate it. Any broader
reading would allow the President to prescribe, or proscribe, certain private behaviors by
civilian federal workers outside the context of their employment. Neither the plain language of ç
7301 nor any traditional notion of personal liberty would tolerate such a sweeping grant of power.
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So, is submitting to a COVID-19 vaccine, particularly when required as a condition of oneâÂÂs
employment, workplace conduct? The answer to this question became a lot clearer after
the Supreme CourtâÂÂs ruling in NFIB earlier this month. There, the Court held that the
Occupational Safety and Health Act of 1970, 29 U.S.C. ç 15 et seq., allows OSHA âÂÂto set workplace
safety standards,â but âÂÂnot broad public health measures.â NFIB, 595 U.S.
slip op. at 6. Similarly, as noted above, ç 7301 authorizes the President to regulate the
workplace conduct of executive-branch employees, but not their conduct in general. See 5
U.S.C. ç 7301. And in NFIB, the Supreme Court specifically held that COVID-19 is not a
workplace risk, but rather a âÂÂuniversal riskâ that is âÂÂno different from the day-to-day dangers
that all face from crime, air pollution, or any number of communicable diseases.â NFIB, 595 U.S.
_ slip op. at 6. Accordingly, the Court held, requiring employees to get vaccinated against
COVID-19 is outside OSHAâÂÂs ambit. Id. Applying that same logic to the PresidentâÂÂs authority under ç
7301 means he cannot require civilian federal employees to submit to the vaccine as a condition of
employment.
The President certainly possesses âÂÂbroad statutory authority to regulate executive
branch employment policies.â Serv. Emps. Int’l Union Loc. 200 United v. Trump, 419 F. Supp.
3d 612, 621 (W.D.N.Y. 2019), aff’d,
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975 F.3d 150 (2d Cir. 2020). But the Supreme Court has expressly held that a COVID-19 vaccine
mandate is not an employment regulation. And that means the President was without
statutory authority to issue the federal-
worker mandate.
⢠Constitutional authority
Though the government argues çç 3301, 3302, and 7301 evince the authority the President
wields to regulate the federal workforce, it also contends that statutory authorization is
wholly unnecessary. Dkt. 21 at 26âÂÂ
27. Article II, the government maintains, gives the President all the power he needs. Id. But
the government points to no example of a previous chief executive invoking the power
to impose medical procedures on civilian federal employees. As Chief Judge Sutton of the Sixth
Circuit has noted, no arm of the federal government has ever asserted such power. See In re MCP No.
165, OSHA Interim Final Rule: COVID-19 Vaccination & Testing, 20 F.4th 264, 289 (6th Cir.
2021) (Sutton, C.J., dissenting from denial of initial rehearing en banc) (âÂÂA âÂÂlack of
historical precedentâ tends to be the most âÂÂtelling indicationâ that no authority exists.âÂÂ).
The government relies on Free Enterprise Fund v. Public Co. Accounting Oversight
Board, 561 U.S. 477 (2010), but that case concerns certain âÂÂOfficers of the United States
who exercise significant authority
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pursuant to the laws of the United States,â not federal employees in general. Id. at 486
(cleaned up). Moreover, the Free Enterprise Fund Court itself acknowledges that the
power Article II gives the President over federal officials âÂÂis not without limit.â Id. at
483.
And what is that limit? As the court has already noted, Congress appears in ç 7301 to
have limited the PresidentâÂÂs authority in this field to workplace conduct. But if the court is
wrong and the President indeed has authority over the conduct of civilian federal employees in
generalâÂÂin or out of the workplaceâÂÂâÂÂwhat is the logical stopping point of that power?âÂÂ
Kentucky v. Biden, No. 21-6147, 2022 WL 43178, at *15 (6th Cir. Jan. 5, 2022). Is it a
âÂÂde facto police powerâÂÂ? Id. The government has offered no answerâÂÂno limiting principle to the
reach of the power they insist the President enjoys. For its part, this court will say only
this: however extensive that power is, the federal-worker mandate exceeds it.
b. APA review
The plaintiffs argue that even if the President had the authority to issue the federal-worker
mandate, the agencies have violated the APA by arbitrarily and capriciously
implementing it. Dkt. 3 at 16âÂÂ25. While the court need not reach this question, as it has already
determined the federal-worker mandate exceeds the PresidentâÂÂs authority, the government correctly
argues
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that, if the President had authority to issue this order, this case seems to present
no reviewable agency action under the APA. The Supreme Court held in Franklin v. Massachusetts that
executive orders are not reviewable under the APA. 505 U.S. 788, 800âÂÂ01 (1992). But the plaintiffs
seem to argue that Franklin no longer applies once an agency implements an executive orderâ the
order itself is then vulnerable to review. That is not the law. To hold otherwise
would contravene the thrust of the Supreme CourtâÂÂs holding in Franklin by subjecting
almost every executive order to APA review.
The plaintiffs are right to argue that agency denials of religious or medical
exemptions, additional vaccination requirements by agencies apart from the federal-worker
mandate, or other discretionary additions to the executive order would likely be reviewable
under the APAâÂÂs arbitrary-and- capricious standard. But the plaintiffs have not challenged any
discretionary agency actionâÂÂonly the implementation of the federal-worker mandate itself.6
Accordingly, there is nothing for the court to review under the APA.
6 The court is convinced that the best reading of the APA in light of Franklin is to allow APA
review only when the challenged action is discretionary. See William Powell, Policing
Executive Teamwork: Rescuing the APA from Presidential Administration, 85 MO. L. REV. 71,
121 (2020).
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3. Balance of equities and the public interest
Finally, the court weighs the plaintiffsâ interest against that of the government and the
public. When the government is the party against whom an injunction is sought, the consideration of
its interest and that of the public merges. Nken v. Holder, 556 U.S. 418, 435 (2009).
The government has an undeniable interest in protecting the public against COVID-19.
Through the federal-worker mandate, the President hopes to slow the virusâÂÂs spread. But an
overwhelming majority of the federal workforce is already vaccinated. According to a White House
press release, even for the federal agency with the lowest vaccination rate, the portion of
employees who have received at least one COVID-19 vaccine dose exceeds 88 percent. OFF. OF MGMT. &
BUDGET, Update on Implementation of COVID-19 Vaccination Requirement for Federal Employees
(Dec. 9, 2021).7 The government has not shown that an injunction in this case will
have any serious detrimental effect on its fight to stop COVID-19. Moreover, any harm to the
public interest by allowing federal employees to remain unvaccinated must be balanced against
the harm sure to come by terminating unvaccinated workers who provide vital services
to the nation.
7 Available at https://www.whitehouse.gov/omb/briefing-room/2021/12/
09/update-on-implementation-of-covid-%e2%81%a019-vaccination-requirement
-for-federal-employees/.
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While vaccines are undoubtedly the best way to avoid serious illness from COVID-19, there is no
reason to believe that the public interest cannot be served via less restrictive measures than the
mandate, such as masking, social distancing, or part- or full-time remote work. The
plaintiffs note, interestingly, that even full-time remote federal workers are not exempt from the
mandate. Stopping the spread of COVID-19 will not be achieved by overbroad policies like
the federal-worker mandate.
Additionally, as the Fifth Circuit has observed, âÂÂ[t]he public interest is also served by
maintaining our constitutional structure and maintaining the liberty of individuals to make
intensely personal decisions according to their own convictions.â OSHA, 17 F.4th at
618. The court added that the government has no legitimate interest in enforcing âÂÂan
unlawfulâ mandate. Id. All in all, this court has determined that the balance of the equities tips
in the plaintiffsâ favor, and that enjoining the federal-worker mandate is in the public interest.
IV
Scope
The court is cognizant of the âÂÂequitable and constitutional questions raised by the rise of
nationwide injunctions.â DepâÂÂt of Homeland Sec. v. New York, 140 S. Ct. 599, 601 (2020) (Gorsuch,
J., concurring); see also Trump
19/20
20/20
v. Hawaii, 138 S. Ct. 2393, 2428âÂÂ29 (2018) (Thomas, J., concurring). But it does not seem that
tailoring relief is practical in this case. The lead plaintiff, Feds for Medical Freedom, has
more than 6,000 members spread across every state and in nearly every federal agency, and is
actively adding new members. The court fears that âÂÂlimiting the relief to only those before [it]
would prove unwieldy and would only cause more confusion.â Georgia, 2021 WL 5779939, at *12. So,
âÂÂon the unique facts before it,â the court believes the best course is âÂÂto issue an injunction with
nationwide applicability.â Id.
* * *
The court GRANTS IN PART and DENIES IN PART the plaintiffsâ motion for a preliminary
injunction. Dkt. 3. The motion is DENIED as to Executive Order 14042, as that order is
already subject to a nationwide injunction. The motion is GRANTED as to Executive Order 14043.
All the defendants, except the President, are thus enjoined from implementing or enforcing
Executive Order 14043 until this case is resolved on the merits. The plaintiffs need not post a
bond.
Signed on Galveston Island this 21st day of January, 2022
JEFFREY VINCENT BROWN UNITED STATES DISTRICT JUDGE
Case 3:21-cv-00356 Document 36 Filed on 01/21/22 in TXSD Page 20 of 20
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