FEDS FOR MEDICAL FREEDOM, ET AL. v. JOSEPH R. BIDEN, JR., ET AL.
No. 3:21-cv-356
January 21, 2022
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE
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 President‘s authority is not that broad, the court will enjoin the second order‘s enforcement.
The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19—the court believes they should. It is not even about the federal government‘s 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 Nat‘l Fed‘n 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).
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.
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 won‘t take action against unvaccinated federal workers until next year, NBC News (Nov. 29, 2021).1 The court 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 *5-9 (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. 7:8-8:11. 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. 4:11-5:5.
II
Jurisdiction
The government2 mounts two challenges to the court‘s jurisdiction: that the Civil Service Reform Act precludes review and that the plaintiffs’ claims are not ripe.
1. Civil Service Reform Act
“Under the Civil Service Reform Act of 1978 (CSRA),
Unfortunately, the CSRA does not define “working conditions.” But the interpretation that courts have given that term would not encompass a requirement that employees subject themselves to an unwanted vaccination. Rather, “these courts
The government also argues that the CSRA applies “to hypothetical removals or suspensions.” Dkt. 21 at 11 (citing
Finally, central to the Supreme Court‘s holding in Elgin was the idea that employees must be afforded, whether under the CSRA or otherwise, “meaningful review” 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 “to bet the farm by taking the violative action before testing the validity of the law.” 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 one‘s “job(s) and their jab(s)” 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 plaintiffs’ claims are ripe. See Dkt. 21 at 12-14. Some of the plaintiffs’ claims—those who have asserted a religious or medical exemption from the mandate—are indeed at least arguably unripe. See Rodden, 2021 WL 5545234, at *2 (the claims of plaintiffs whose exemption claims remain unresolved are as yet “too speculative“).4 But the government insists that even plaintiffs who have not claimed exemptions do not have ripe claims because
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 employee‘s failure to provide evidence that he is fully vaccinated “will not be tolerated“). 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 other negative consequences. Dkt. 3, Exhibits 15-18, 20, 26-27. To be ripe, the threat a plaintiff faces must be “actual and imminent, not conjectural or hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). And in the context of preliminary relief, “a plaintiff must show that irreparable injury is not just possible, but likely.” 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 government‘s ripeness allegations are unfounded. The court has jurisdiction.
III
Injunctive Relief
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A 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.” 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 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 Hobson‘s choice employees face between “their job(s) and their jab(s)” 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 “do not necessarily constitute irreparable harm.” 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
The plaintiffs have shown that in the absence of preliminary relief, they are likely to suffer irreparable harm.
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 plaintiffs’ arguments fall into two categories: (1) that the President‘s 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 agencies’ 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 President‘s authority to issue the federal-worker mandate:
Section 3301, by its own terms, applies only to “applicants” seeking “admission . . . into the civil service.”
Section 3302 provides that the “President may prescribe rules governing the competitive service.”
But the plaintiffs argue that rather than regulate “conduct,” the federal-worker mandate compels employees to assume a vaccinated “status,” and “one that is untethered to job requirements, no less.” Dkt. 3 at 12. Moreover, the plaintiffs contend, even if becoming vaccinated is “conduct,” it is not “workplace conduct,” which is all that
Assuming that getting vaccinated is indeed “conduct,” the court agrees with the plaintiffs that under
So, is submitting to a COVID-19 vaccine, particularly when required as a condition of one‘s employment, workplace conduct? The answer to this question became a lot clearer after the Supreme Court‘s ruling in NFIB earlier this month. There, the Court held that the Occupational Safety and Health Act of 1970,
The President certainly possesses “broad statutory authority to regulate executive branch employment policies.” Serv. Emps. Int‘l Union Loc. 200 United v. Trump, 419 F. Supp. 3d 612, 621 (W.D.N.Y. 2019), aff‘d, 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
The government relies on Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010), but that case concerns certain “Officers of the United States who exercise significant authority pursuant to the laws of the United States,” 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 “is not without limit.” Id. at 483.
And what is that limit? As the court has already noted, Congress appears in
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 16-25. While the court need not reach this question, as it has already determined the federal-worker mandate exceeds the President‘s authority, the government correctly argues 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, 800-01 (1992). But the plaintiffs seem to argue that Franklin no longer applies once an agency implements an executive order—the order itself is then vulnerable to review. That is not the law. To hold otherwise would contravene the thrust of the Supreme Court‘s 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 APA‘s arbitrary-and-capricious standard. But the plaintiffs have not challenged any discretionary agency action—only the implementation of the federal-worker mandate itself.6 Accordingly, there is nothing for the court to review under the APA.
3. Balance of equities and the public interest
Finally, the court weighs the plaintiffs’ 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
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, “[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.” OSHA, 17 F.4th at 618. The court added that the government has no legitimate interest in enforcing “an unlawful” mandate. Id. All in all, this court has determined that the balance of the equities tips in the plaintiffs’ favor, and that enjoining the federal-worker mandate is in the public interest.
IV
Scope
The court is cognizant of the “equitable and constitutional questions raised by the rise of nationwide injunctions.” Dep‘t of Homeland Sec. v. New York, 140 S. Ct. 599, 601 (2020) (Gorsuch, J., concurring); see also Trump v. Hawaii, 138 S. Ct. 2393, 2428-29 (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 “limiting the relief to only those before [it] would prove unwieldy and would only cause more confusion.” Georgia, 2021 WL 5779939, at *12. So, “on the unique facts before it,” the court believes the best course is “to issue an injunction with nationwide applicability.” Id.
* * *
The court GRANTS IN PART and DENIES IN PART the plaintiffs’ 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
Signed on Galveston Island this 21st day of January, 2022
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE