Am. Fed'n of Gov't Emps. Local 2586 v. Biden

• Docket Number: Case No. CIV-21-1130-SLP
• Decision Date: 22 July 2022
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2586, et al., Plaintiffs, v. President Joseph R. BIDEN, in his official capacity as President of the United States, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

616 F.Supp.3d 1275

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2586, et al., Plaintiffs,

v.President Joseph R. BIDEN, in his official capacity as President of the United States, et al., Defendants.

Case No. CIV-21-1130-SLP

United States District Court, W.D. Oklahoma.

Signed July 22, 2022

Ashley C. Weyland, Rachel L. Bussett, Bussett Legal Group PLLC, Oklahoma City, OK, Greg Campbell, Hammond & Shinners, P.C., St. Louis, MO, for Plaintiffs.

Steven A. Myers, US Dept. of Justice Civil Div., Federal Programs Branch, Washington, DC, for Defendants.

ORDER

SCOTT L. PALK, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction and Brief in Support [Doc. No. 9]. The matter is fully briefed. See Defs.’ Resp [Doc. No. 34] and Notice [Doc. No. 35]; Pls.’ Reply [Doc. No. 40]; Defs.’ Surreply [Doc. No. 44] and Pls.’ Notice [Doc. No. 47].¹

I. Introduction

Plaintiff, Local 2586 of the American Federation of Government Employees (AFGE), is a labor union representing federal civilians employed by the Department of Defense (DOD) at the Altus Air Force Base. Plaintiffs Brian King and Sandy Lawson are federal civilian employees of the DOD, employed at Altus AFB. And Plaintiff Melody A. Graves is a federal civilian employee employed by the DOD at its facility in Fort Leonard Wood, Missouri. The Court collectively refers to King, Lawson and Graves as the "Civilian Employees."

Collectively, Plaintiffs challenge enforcement of Executive Order 14043 issued by President Biden on September 9, 2021 and directing federal agencies to require that their employees be vaccinated against COVID-19, unless a legally required exception applies. See Exec. Order No. 14043 § 2, 86 Fed. Reg. 50,989, 50,990 (Sept. 9, 2021) ( EO 14043 ). The Civilian Employees oppose being required to receive any dose, or any additional dose of the COVID-19 vaccine. The Civilian Employees remain employed in the positions they held at the time the Complaint was filed. The Civilian Employees have each submitted requests for exceptions to the vaccination

requirements and those requests remain pending. The Civilian Employees are not required to become vaccinated during the pendency of the requests.

Plaintiffs commenced this action on November 29, 2021.² Plaintiffs bring the following claims for relief: Count I – Violation of Fifth Amendment (Substantive Due Process; Count II – Violation of Emergency Use Authorization Provisions of the Food, Drug and Cosmetics Act, Resulting in Violation of the Fifth Amendment; Count III – Violation of the Fifth Amendment as to Plaintiff Melody Graves; Count IV – Violation of Tenth Amendment (Infringement on State Police Powers); and Count V – The Federal Employee Vaccine Mandate is Contrary to Law and is Ultra Vires. Compl. [Doc. No. 1].

Plaintiffs filed their pending Motion on December 2, 2021. Plaintiffs’ Motion focuses solely on Counts IV and V. Although Plaintiffs seek, in part, a temporary restraining order, Plaintiffs have not shown compliance with the requirements of Rule 65(b) of the Federal Rules of Civil Procedure. Notably, Plaintiffs did not obtain service of all Defendants until April 21, 2022 – nearly five months after seeking a temporary restraining order, and after having received two extensions of time from the Court to effect service.³

During the pendency of this action, on January 21, 2022, the United States District Court for the Southern District of Texas issued a nationwide preliminary injunction banning all Defendants, except the President of the United States, from implementing or enforcing EO 14043. See Feds for Med. Freedom v. Biden , No. 3:21-cv-356, 581 F.Supp.3d 826 (S.D. Tex. Jan. 21, 2022). Thereafter, on April 7, 2022, a panel of the Fifth Circuit vacated and remanded the matter, directing the district court to dismiss the case. See Feds for Med. Freedom v. Biden , 30 F.4th 503 (5th Cir. 2022). On June 27, 2022, however, the Fifth Circuit granted en banc review and vacated the panel's decision. See Feds for Med. Freedom v. Biden , 37 F.4th 1093 (5th Cir. 2022). Thus, the nationwide injunction currently remains in effect.⁴

In responding to Plaintiffs’ Motion, Defendants raise a challenge to the Court's exercise of federal subject matter jurisdiction. Alternatively, Defendants seek denial of the Motion on grounds Plaintiffs have not met their burden of showing preliminary injunctive relief is warranted.

The issue of subject matter jurisdiction is a threshold issue. For the reasons that follow, because the Court finds subject matter jurisdiction is lacking, the Court does not reach the merits of Plaintiffs’ motion for preliminary injunctive relief but DISMISSES this action WITHOUT PREJUDICE for lack of subject matter jurisdiction.

II. Governing Standard

"Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute." Gunn v. Minton , 568 U.S. 251, 256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (internal quotation marks omitted). District courts are precluded, on jurisdictional grounds, from addressing claims subject to a statutory review scheme. Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 207, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994). "A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Safe Streets All. v. Hickenlooper , 859 F.3d 865, 878 (10th Cir. 2017) (internal quotation marks omitted).

The party invoking a federal court's jurisdiction bears the burden of establishing subject-matter jurisdiction. Id. Where, as here, a party brings a facial attack to challenge subject matter jurisdiction, the court must accept the allegations in the complaint as true. Holt v. United States , 46 F.3d 1000, 1002 (10th Cir. 1995), abrogated on other grounds by Cent. Green Co. v. United States , 531 U.S. 425, 437, 121 S.Ct. 1005, 148 L.Ed.2d 919 (2001).

III. Discussion

A. CSRA

Defendants first argue that the Civilian Employees’ claims are precluded by the Civil Service Reform Act (CSRA). The Court must determine whether the CSRA precludes a separate action in the district court by applying a two-step framework. First, the Court must "find that Congress has allocated initial review to an administrative body where such intent is fairly discernible in the statutory scheme." Thunder Basin , 510 U.S. at 207, 114 S.Ct. 771 (internal quotation marks and citation omitted). Second, the Court must determine whether the claims are "of the type Congress intended to be reviewed within the statutory structure." Id. at 212, 114 S.Ct. 771. Three factors guide the determination under the second step: (1) whether the claims are wholly collateral to a statute's review provisions; (2) whether the claims are outside the agency's expertise; and (3) the availability of meaningful judicial review. Id. at 212-13, 114 S.Ct. 771.

1. It is fairly discernible under the CSRA that Congress has allocated initial review to an administrative body.

The CSRA is a "comprehensive system for reviewing personnel action taken against federal employees." United States v. Fausto , 484 U.S. 439, 455, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). It was "designed to replace an ‘outdated patchwork of statutes and rules’ that ... produced ‘wide variations in the decisions ... on similar matters and [produced] a double layer of judicial review that was ‘wasteful and irrational.’ " Elgin v. Dep't of Treasury , 567 U.S. 1, 13-14, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012) (quoting Fausto , 484 U.S. at 444-45, 108 S.Ct. 668 ).

Under the CSRA, different administrative and judicial review procedures apply depending on the nature of the challenged employment action and the types of claims asserted. Defs.’ Resp. at 18. As pertinent here, the Fourth Circuit, in an unpublished opinion, has addressed the applicable provisions of the CSRA in the context of an analogous challenge to EO 14043. Rydie v. Biden , No. 21-2359, 2022 WL 1153249, at *3-4 (4th Cir. Apr. 19, 2022).

As the Fourth Circuit explained: "[e]mployees who have suffered a ‘prohibited personnel practice’ can file an allegation with the Office of Special Counsel." Id. at *3 (citing 5 U.S.C. § 1214(a) ). "If the Special Counsel finds ‘reasonable grounds’ suggesting a ‘prohibited personnel practice’ occurred, he or she must report it to the Merit Systems Protection Board, the employing agency, and the Office of Personnel Management." Id. (citing § 1214(b)(2)(B) ). "If the agency doesn't fix the problem, ‘the Special Counsel may petition the Board,’ and the Board can order corrective action." Id. (citing § 1214(b)(2)(C), (b)(4)(A) ). "Corrective action may include attorneys’ fees, back pay, and other compensatory damages." Id. (citing § 1214(g) ). "Judicial review of the Board's final orders is available in the United States Court of Appeals for the Federal Circuit." Id. (citing §§ 1214(c), 7703(b)(1)(A) ). More serious agency actions against executive-branch employees include "removal," "suspension for more than 14 days," "reduction in grade," "reduction in pay," and "furlough of 30 days or less." Id. (citing § 7512(1)-(5)).

The CSRA affords employees "procedural rights, including notice, representation by counsel, the opportunity to respond, and a reasoned decision from the agency." Id. (citing §§ 7503(b), 7513(b)). Serious agency actions, as identified, can be appealed to the Merit Systems Protection Board. Id. (citing §§ 7503(c), 7513(d)). "And employees can appeal from the Board to the Federal Circuit." Id. (citing § 7703(b)(1)(A) ). With this statutory backdrop, the Court proceeds with the jurisdictional analysis.

The Supreme Court has rejected previous challenges seeking exceptions to the CSRA's comprehensive and exclusive scheme. In Fausto , the Supreme Court rejected a federal employee's attempt to appeal an adverse employment action not covered by the Merits Systems Protection Board. The employee...