Feds for Med. Freedom v. Biden

• Decision Date: 21 January 2022
• Docket Number: 3:21-cv-356
• Citation: 581 F.Supp.3d 826
• Parties: FEDS FOR MEDICAL FREEDOM, et al., Plaintiffs, v. Joseph R. BIDEN, Jr., et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

581 F.Supp.3d 826

FEDS FOR MEDICAL FREEDOM, et al., Plaintiffs,

v.Joseph R. BIDEN, Jr., et al., Defendants.

No. 3:21-cv-356

United States District Court, S.D. Texas, Galveston Division.

Signed January 21, 2022

Jared M. Kelson, Pro Hac Vice, Jonathan A. Berry, Pro Hac Vice, Michael B. Buschbacher, Pro Hac Vice, R. Trent McCotter, Boyden Gray & Associates PLLC, Washington, DC, for Plaintiff Feds for Medical Freedom.

R. Trent McCotter, Boyden Gray & Associates, PLLC, Washington, DC, for Plaintiffs Local 918, American Federation of Government Employees, Highland Engineering, Inc., Raymond A. Beebe, Jr., John Armbrust, N. Anne Atkinson, Julia Badger, Michael Ball, Craigan Biggs, Laura Brunstetter, Mark Canales, Michele Caramenico, Andrew Chamberland, David Clark, Diane Countryman, Kevin Dantuma, Jose Delgado, Jordan DeManss, George Demetriou, Keri Divilbiss, Mercer Dunn, IV, William Filkins, Jonathan Gragg, Bryon Green, Thomas David Green, Erika Hebert, Peter Hennemann, Neil Horn, Carey Hunter-Andrews, Tana Johnston, Tyler Klosterman, Deborah Lawson, Dan Lewis, Melissa Magill, Kendra Ann Marceau, Dalia Matos, Stephen May, Steven McComis, Christopher Miller, Joshua Moore, Brent Moores, Jesse Neugebauer, Joshua Nicely, Leslie Carl Petersen, Patti Rivera, Joshua Roberts, Ashley Rodman, M. LeeAnne Rucker-Reed, Trevor Rutledge, Nevada Ryan, James Charles Sams, III, Michael Schaecher, Christina Schaff, Kurtis Simpson, Barrett Smith, Jaci ReNee Smith, Jarod Smith, Jana Spruce, John Tordai, Sandor Vigh, Christine Vrtaric, Pamela Weichel, David Wentz, Jason Wilkerson, Patrick Wright, Patrick Mendoza York.

James Garland Gillingham, U.S. Attorney's Office, Tyler, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

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.

IBackground

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. ––––, 142 S.Ct. 661, 211 L.Ed.2d 448 (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. ––––, 142 S.Ct. 647, 211 L.Ed.2d 433 (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. Exec. Order No. 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg. 50,985 (Sept. 9, 2021). Because that order has been enjoined nationwide, Georgia v. Biden , No. 1:21-CV-163, 574 F.Supp.3d 1337, 1356–57 (S.D.), this court declines to grant any further preliminary relief. The other mandate requires that all federal employees be vaccinated—or obtain a religious or medical exemption—or else face termination. See Exec. Order No. 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, 86 Fed. Reg. 50,989 (Sept. 9, 2021) [hereinafter federal-worker mandate].

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, 571 F.Supp.3d 686 (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.

IIJurisdiction

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), 5 U.S.C. § 1101 et seq. , certain federal employees may obtain administrative and judicial review of specified adverse employment actions." Elgin v. Dep't of Treasury , 567 U.S. 1, 5, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012). The government maintains that the CSRA, by providing an exclusive means of relief, precludes the plaintiffs’ claims in this case. Dkt. 21 at 8–12. Specifically, the government argues that by challenging the vaccine mandate, the plaintiffs are disputing a "significant change in duties, responsibilities, or working conditions," which is an issue exclusively within the province of the CSRA. Id. at 11 (quoting 5 U.S.C. § 2302(a)(2)(A)(xii) ).

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 have determined that the term ‘working conditions’ generally refers to the daily, concrete parameters of a job, for example, hours, discrete assignments, and the provision of necessary equipment and resources." Turner v. U.S. Agency for Glob. Media , 502 F. Supp. 3d 333, 367 (D.D.C. 2020).

The government also argues that the CSRA applies "to hypothetical removals or suspensions." Dkt. 21 at 11 (citing 5 U.S.C. § 7512 ). But, contrary to the government's suggestion, the statute says nothing about "hypothetical" adverse employment actions. See 5 U.S.C. § 7512. Rather, it applies to actual discipline, whether that be firings, suspensions, reductions in pay, or furloughs. See id. Indeed, neither the Merit Systems Protection Board (the administrative body charged with implementing the CSRA) nor the Federal Circuit (which hears CSRA appeals) has jurisdiction until there is an actual adverse employment action.³ Esparraguera v. Dep't of the Army , 981 F.3d 1328, 1337–38 (Fed. Cir. 2020).

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, 132 S.Ct. 2126. 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." Free Enter. Fund v. Pub. Co. Acct. Oversight Bd. , 561 U.S. 477, 490, 130 S.Ct. 3138, 177 L.Ed.2d 706 (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 , 571 F.Supp.3d at 689–90 (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 "federal employees have...