Feds for Med. Freedom v. Biden

• Decision Date: 09 February 2022
• Docket Number: No. 22-40043,22-40043
• Citation: 25 F.4th 354 (Mem)
• Parties: FEDS FOR MEDICAL FREEDOM; Local 918, American Federation of Government Employees; Highland Engineering, Incorporated; Raymond A. Beebe, Jr.; John Armbrust; et al., Plaintiffs—Appellees, v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States; The United States of America; Pete Buttigieg, in his official capacity as Secretary of Transportation; Department of Transportation ; Janet Yellen, in her official capacity as Secretary of Treasury ; et al., Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

25 F.4th 354 (Mem)

FEDS FOR MEDICAL FREEDOM; Local 918, American Federation of Government Employees; Highland Engineering, Incorporated; Raymond A. Beebe, Jr.; John Armbrust; et al., Plaintiffs—Appellees,

v.Joseph R. BIDEN, Jr., in his official capacity as President of the United States; The United States of America; Pete Buttigieg, in his official capacity as Secretary of Transportation; Department of Transportation ; Janet Yellen, in her official capacity as Secretary of Treasury ; et al., Defendants—Appellants.

No. 22-40043

United States Court of Appeals, Fifth Circuit.

FILED February 9, 2022

R. Trent McCotter, Boyden Gray & Associates, Washington, DC, for Plaintiffs—Appellees.

Casen Ross, Sarah Wendy Carroll, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, James Garland Gillingham, U.S. Attorney's Office, Eastern District of Texas, Tyler, TX, for Defendants—Appellants.

Gene Patrick Hamilton, America First Legal Foundation, Washington, DC, for Amicus Curiae America First Legal Foundation.

Jordan E. Pratt, First Liberty Institute, Plano, TX, for Amicus Curiae 45 Members of Congress.

Before Smith, Higginson, and Willett, Circuit Judges.

Per Curiam:

IT IS ORDERED that Appellants' opposed motion to stay the injunction pending appeal is CARRIED WITH THE CASE. This matter is expedited to the next available randomly designated regular oral argument panel. The Clerk is directed to issue a schedule for expedited briefing. The merits panel, once identified, will be free, in its discretion, to rule immediately on the motion to stay or await oral argument.

Stephen A. Higginson, Circuit Judge, dissenting:

In September 2021, President Biden issued Executive Order No. 14043, which, subject to legally required exemptions, directs federal agencies to require their employees to be immunized against COVID-19, a disease that has killed nearly one million people in the United States and over five million worldwide. Though a dozen district courts have rejected requests to enjoin this order,¹ a single district judge in the Southern District of Texas, in a 20-page opinion,² issued a nationwide preliminary injunction against the President's exercise of authority over Article II employees. Because I would grant the Government's motion to stay that injunction pending appeal, I respectfully dissent from the majority's decision not to resolve this emergency matter.³

I.

When considering whether to grant a stay, "a court considers four factors: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ " Nken v. Holder , 556 U.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v. Braunskill , 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) ). In this case, all four factors favor granting a stay.

II.

The Government has made a strong showing that it is likely to succeed on the merits, for at least three independent reasons.

A.

As a threshold matter, the Government is likely to succeed in demonstrating on appeal that the district court lacks jurisdiction over this case. Congress requires covered federal employees to raise their workplace grievances through the administrative procedures set forth in the Civil Service Reform Act (CSRA). As the Supreme Court has explained, "[g]iven the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court." Elgin v. Dep't of Treasury , 567 U.S. 1, 11-12, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012) ; see also Rollins v. Marsh , 937 F.2d 134, 139 (5th Cir. 1991) (describing the CSRA as establishing "the comprehensive and exclusive procedures for settling work-related controversies between federal civil-service employees and the federal government"); 5 U.S.C. §§ 7512, 7513(d), 7703(b)(1) (making certain adverse employment actions against federal employees reviewable by Merit Systems Protection Board and Federal Circuit); id. §§ 1214(a)(3), 2302 (review scheme for less severe "prohibited personnel practice[s]"). For this reason alone, I would grant the stay.⁴

B.

Even if we were to ultimately determine that the district court has jurisdiction to hear this case, the Government is likely to succeed in showing that the President has authority to promulgate this executive order pertaining to the federal executive workforce.

"Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’ " Seila Law LLC v. Consumer Fin. Prot. Bureau , ––– U.S. ––––, 140 S. Ct. 2183, 2191, 207 L.Ed.2d 494 (2020) (quoting U.S. Const. art. II, § 1, cl. 1 ; id. § 3). The President's executive power has long been understood to include "general administrative control of those executing the laws." Id. at 2197-98 (quoting Myers v. United States , 272 U.S. 52, 163-64, 47 S.Ct. 21, 71 L.Ed. 160 (1926) ). Accordingly, the President "has the right to prescribe the qualifications of [Executive Branch] employees and to attach conditions to their employment." Friedman v. Schwellenbach , 159 F.2d 22, 24 (App.D.C. Cir. 1946) ; see also Old Dominion Branch No. 496, Nat. Ass'n of Letter Carriers, AFL-CIO v. Austin , 418 U.S. 264, 273 n.5, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (noting "the President's responsibility for the efficient operation of the Executive Branch"); Crandon v. United States , 494 U.S. 152, 180, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (Scalia, J., concurring in the judgment) (describing "the President's discretion-laden power" to regulate the Executive Branch under 5 U.S.C. § 7301 ); Nat'l Treasury Emps. Union v. Bush , 891 F.2d 99 (5th Cir. 1989) (upholding President Reagan's executive order authorizing random drug testing of certain federal employees). Thus, the President, as head of the federal executive workforce, has authority to establish the same immunization requirement that many private employers have reasonably imposed to ensure workplace safety and prevent workplace disruptions caused by COVID-19.

The district court rejected the above argument as "a bridge too far," given "the current state of the law as just recently expressed by the Supreme Court" in NFIB v. OSHA , ––– U.S. ––––, 142 S. Ct. 661, ––– L.Ed.2d –––– (2022), and Biden v. Missouri , ––– U.S. ––––, 142 S. Ct. 647, ––– L.Ed.2d –––– (2022). However, the district court misapprehended the single, animating principle that all Justices embraced in these decisions. As Justice Gorsuch explained in his NFIB concurrence, "The central question we face today is: Who decides?" 142 S. Ct at 667 (Gorsuch, J., concurring). In NFIB , the Court stayed an immunization requirement that unelected agency officials imposed on private employers that do not receive federal funding, explaining that "[a]dministrative agencies are creatures of statute" and that the Occupational Safety and Health Act does not "plainly authorize[ ] the Secretary's [immunization or testing] mandate." 142 S. Ct. at 665. Comparatively, in Biden v. Missouri , which involved an immunization requirement that unelected agency officials imposed on the staff of healthcare facilities receiving Medicare and Medicaid funding, the Court concluded that "the Secretary's rule falls within the authorities that Congress has conferred upon him." 142 S. Ct. at 652. Notably, even the dissenting Justices in that case acknowledged that "[v]accine mandates ... fall squarely within a State's police power." Id. at 658 (Thomas, J., dissenting); see also NFIB v. OSHA , 142 S. Ct at 667 (Gorsuch, J., concurring) ("There is no question that state and local authorities possess considerable power to regulate public health."). Thus, in these two cases, the Court gave a consensus answer to Justice Gorsuch's question: it is elected, democratically-accountable officials, including members of Congress⁵ and state legislators, who have authority to decide—and answer for—the infection-fighting measures that they impose, including immunization requirements, such as mandatory smallpox vaccination

, that our country has utilized for centuries. See

Jacobson v. Massachusetts , 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (upholding the authority of states to enforce compulsory vaccination laws).⁶

The President is not an unelected administrator. He is instead the head of a co-equal branch of government and the most singularly accountable elected official in the country. This federal workplace safety order displaces no state police powers and coerces no private sector employers. Instead, consistent with his Article II duty to "take Care that the Laws be faithfully executed," the President is performing his role as CEO of the federal workforce,⁷ taking executive action in order to keep open essential government buildings;⁸ to maintain the provision of vital government services, such as the Transportation Security Administration; and to prevent unvaccinated federal employees from infecting co-workers or members of the public who, whether because of age or infirmity, might be highly vulnerable to hospitalization and death.

Federal employees that disagree with the content of Executive Order 14043 retain the right to claim an exemption, to leave the government's employment, to collectively bargain, and to challenge the order through the CSRA. And, of course, any American that disagrees with the content of the order has the right to vote the President out of office. Thus, consistent with NFIB v. OSHA and Biden v. Missouri , accountability for the federal executive employee immunization requirement is open, obvious, and vested in one elected, democratically-accountable official. These two cases do...