A federal appeals court in New Orleans ruled that a Texas federal judge who blocked the vaccine mandate for federal employees in January did so illegally, thus resuscitating Joe Biden’s order that all federal employees must be vaccinated or face disciplinary action.
The New Orleans-based 5th Circuit Court of Appeals, in a 2-1 decision, found that Jeffrey Brown, a federal judge in Texas and an appointee of President Donald Trump, did not have the standing to make such a ruling.
The question in the case was how broadly the Civil Service Act of 1978 should be interpreted. The New Orleans appeals court ruled that Judge Brown had overstepped his authority.
“We conclude that the CSRA precluded the district court’s jurisdiction,” the two Clinton appointees, Judge Carl Stewart and Judge James Stewart wrote. “Accordingly, the plaintiffs’ claim for preliminary injunctive relief fails because they have not shown a substantial likelihood of success on the merits.”
But the Biden administration sent a memo to all federal departments telling them to delay implementing the mandate because the legal process is far from over.
It’s not clear when the agencies might begin enforcing the mandate, which makes unvaccinated federal employees subject to discipline up to and including firing — unless they qualify for an exemption on medical or religious grounds or have such a request under consideration.
The most recent accounting from the administration, from early December, showed that about 93 percent of employees had been vaccinated and an additional 4 percent had either approved or pending requests for exemptions.
While the immediate question may be moot given that almost all federal employees have been vaccinated, the issue needs to be adjudicated to make sure no future president is able to order a vaccination mandate for all federal employees.
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The lone dissenting judge in the case pointed out that the disciplinary actions resulting from failure to obey amounted to a “pre-enforcement employment action.”
Dissenting from Thursday’s ruling, Circuit Judge Rhesa Hawkins Barksdale wrote that employee appeal rights under the Civil Service Reform Act, or CSRA, apply only after an agency has taken a disciplinary action, and noted, “Here, there is no agency action. Rather, the President is attempting to impose a sweeping mandate against the federal civilian workforce. … [T]he President seeks to require an entire class of employees to be vaccinated or be subject to an adverse action.
“Simply put, CSRA does not cover pre-enforcement employment actions, especially concerning 2.1 million federal civilian employees,” he added.
The mandate was always an overreach by the president. His power is not unlimited — even in a “public health emergency.”
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