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Full Fifth Circuit dissects Covid vaccine mandate for federal workers

Some judges on the New Orleans-based appeals court criticized President Biden's mandate since vaccines are not ironclad protection against catching the virus.

(CN) — The state of the pandemic in the United States has drastically changed in the year since President Joe Biden issued an executive order in September 2021 for federal agencies to require their employees be vaccinated against Covid-19, which the White House said was needed to ensure the health, safety and efficiency of the nation’s more than 2.1 million civil service workers.

At that time, hospitals across the country were overwhelmed with patients stricken with the delta variant and thousands of Americans were testing positive every day. People were wearing masks in public places, either for personal choice or as a requirement to enter buildings.  

Today, the Centers for Disease Control and Prevention has nixed its recommendations that people stay 6 feet apart and quarantine if they are exposed to someone with Covid. And those who choose to don masks in crowded places is more the exception than the rule.

The pandemic has receded from top of mind for many Americans and from newspapers’ front pages, with the CDC acknowledging Covid-19 is here to stay and putting faith in vaccinations and other treatments to protect people from serious illness and death.

While the public sentiment may be that it’s time to move on, the Fifth Circuit is still grappling with a lawsuit filed last December over Biden’s vaccine edict for federal employees by an upstart Nevada nonprofit called Feds for Medical Freedom, whose more than 6,000 members work in nearly every federal agency and in every U.S. state, according to their attorney Trent McCotter of the Washington firm Boyden Gray & Associates.

U.S. District Judge Jeffrey Brown, a Donald Trump appointee in Galveston, sided with the group and blocked the mandate on Jan. 21 with a nationwide injunction.

Brown determined Biden had overstepped his authority in requiring, without authorization from Congress, “millions of federal employees to undergo a medical procedure as a condition of their employment."

The Biden administration appealed to the Fifth Circuit and a divided three-judge panel of the appellate court ruled in April the jab objectors lack standing because the Civil Service Reform Act of 1978 dictates they must challenge any punishment they receive for eschewing the vaccine through an administrative process handled by the U.S. Merit Systems Protection Board, an independent, quasi-judicial federal agency.

Writing for the majority, U.S. Circuit Judge Carl Stewart, a Bill Clinton appointee, said if the employees disagreed with the merits board’s decision they could seek judicial review but only from one court: the D.C. Circuit.

Federal agencies were poised to start adjudicating the requests of their holdout employees for religious and medical exemptions. According to the White House, around 95% of the federal workforce has complied with the vaccine directive.

But the Fifth Circuit did an about-face.

On June 27, it vacated the panel ruling against Feds for Medical Freedom, thereby keeping in place Judge Brown’s injunction, and agreed to hold an en banc hearing before all its 17 active judges.

Some of the court’s jurists appeared skeptical in Tuesday’s hearing of Justice Department attorney Charles Scarborough’s arguments the mandate is well within Biden’s authority as chief of the federal workforce, akin to the numerous CEOs of private companies who required their employees to get inoculated against Covid-19.

U.S. Circuit Judge Rhesa Barksdale asked Scarborough if the case is moot because getting vaccines is not ironclad protection against catching Covid.

“Even when you’re vaccinated you still have breakthrough cases of Covid. It’s well known this is happening. So it would be moot and this case would be over. Or at least it should be something we should consider in the factors of whether an injunction is justified,” the George H. W. Bush appointee said.

Expressing confusion at Barksdale’s suggestion, Scarborough said, “The case is not moot. The vaccination requirement continues. And vaccination continues to be the single best method for preventing serious disease from Covid and hospitalization.”

U.S. Circuit Judge Edith Jones, a Ronald Reagan appointee, framed her opposition to the mandate with a hypothetical.

“What is the likelihood the president would declare that all the employees have to achieve a certain body weight within the next six months?” she asked.

“I think the likelihood of that is extraordinarily small, your honor,” Scarborough replied.

“Well, but everybody knows obesity is one of the biggest problems in the United States,” Jones said, “related to many collateral health problems and death. And that the daily consequences of obesity also affect the workplace in terms of medical costs, absenteeism and that sort of thing.”

“So it seems to me that obesity is at least as big a problem,” she added. “And it’s not transmissible. Whereas people who take the vaccine, as you just acknowledged, can still transmit the disease.”

Scarborough explained any directives must have some nexus to federal employment and promote efficiency of the federal workforce. “The ability to posit hypotheticals at the extremes doesn’t undercut the government’s authority,” he countered.

He also doubled back to the administration’s claims federal employees aren’t allowed to take on workforce policies in federal district courts.

Instead, they must go through an administrative process set out by the Civil Service Reform Act, and the statute does not allow such constitutional challenges by employees who have yet to suffer adverse actions, such as suspensions or terminations, Scarborough said, citing the U.S. Supreme Court’s 2012 decision Elgin v. the Department of Treasury.

On rebuttal, McCotter, counsel of Feds for Medical Freedom, argued the high court’s Elgin decision didn’t address pre-enforcement challenges and said federal courts should not be precluded from resolving controversies of this magnitude.

“It’s quite illogical that Congress would have intended for huge separation of power challenges to a government-wide regulation to be handled through administrative schemes,” McCotter said.

Turning to the merits, McCotter noted over the nation’s nearly 250-year history, a president has never ordered civilian employees to undergo any medical procedure, especially a permanent and irreversible one.

The lack of a “historical analog,” McCotter continued, defeats the government’s assertion that Biden’s authority to impose the mandate is set out in Article II of the Constitution, which lays out the powers of the executive branch.

McCotter said the case comes down to two competing views: Feds for Medical Freedom’s belief the president can only regulate conduct in the workplace or with a unique tie to the workplace, and Biden’s that he can regulate employees’ conduct on duty and off duty, and not just conduct but vaccination status. “Essentially anything going on in an employee’s life,” McCotter said.

The judges did not say when they would issue a ruling.

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