Feds for Medical Freedom v. Biden ( 2023 )

Case: 22-40043 Document: 00516687563 Page: 1 Date Filed: 03/23/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 23, 2023
No. 22-40043 Lyle W. Cayce
Clerk
Feds for Medical Freedom; Local 918, American
Federation of Government Employees; Highland
Engineering, Incorporated; Raymond A. Beebe, Jr.; John
Armbrust; et al.,
Plaintiffs—Appellees,
versus
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.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:21-CV-356
Before Richman, Chief Judge, and Jones, Smith, Barksdale,
Stewart, Dennis, Elrod, Southwick, Haynes, Graves,
Higginson, Willett, Ho, Duncan, Engelhardt, Oldham,
and Wilson, Circuit Judges.
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Andrew S. Oldham, Circuit Judge, joined by Jones, Smith,
Barksdale, Elrod, Willett, Ho, Duncan, Engelhardt, and
Wilson, Circuit Judges: ∗
The primary question presented is whether we have jurisdiction over
pre-enforcement challenges to President Biden’s vaccine mandate for federal
employees. We do. On the merits, we affirm the district court’s order.
I.
On September 9, 2021, President Biden issued Executive Order
14043, which generally required all federal employees to be vaccinated.
Employees who didn’t comply would face termination. He also issued
Executive Order 14042, imposing the same requirements and punishments
for federal contractors.
Feds for Medical Freedom is a non-profit organization with over
6,000 members employed by numerous federal agencies and contractors.
Feds for Medical Freedom, along with a chapter of the American Federation
of Government Employees and more than 50 individual plaintiffs, sued for
declaratory and injunctive relief against the enforcement of both mandates.
Plaintiffs raised several constitutional and statutory claims. First, they
asserted constitutional objections. They argued that the President did not
have inherent Article II authority to issue either mandate. And any purported
congressional delegation of such power violated either the major questions
doctrine or the non-delegation doctrine. Second, they claimed both mandates
were arbitrary, capricious, and otherwise not in accordance with law under
the Administrative Procedure Act (“APA”). And the contractor mandate
∗
Judge Willett joins all except Part VI. Judge Douglas was not a member
of the court when this case was submitted to the court en banc and did not participate in
this decision.
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violated the APA because it was not in accordance with law. Finally, they
sought relief under the Declaratory Judgment Act (“DJA”).
The day after filing their complaint, plaintiffs sought preliminary
injunctions against both mandates. The district court declined to enjoin the
contractor mandate because it was already the subject of a nationwide
injunction. But it enjoined the employee mandate on January 21, 2022. The
Government timely appealed that injunction.
On an expedited appeal, a divided panel of our court vacated the
injunction. See Feds for Medical Freedom v. Biden, 30 F.4th 503 (5th Cir. 2022).
The panel majority held “that the [Civil Service Reform Act of 1978
(“CSRA”)] precluded the district court’s jurisdiction. Accordingly, the
plaintiffs’ claim for preliminary injunctive relief fails because they have not
shown a substantial likelihood of success on the merits. We do not reach the
parties’ arguments regarding the other requirements for a preliminary
injunction.” Id. at 511. Judge Barksdale dissented. We granted
rehearing en banc, vacating the panel opinion. See Feds for Medical Freedom v.
Biden, 37 F.4th 1093 (5th Cir. 2022).
II.
“Jurisdiction is always first.” Carswell v. Camp, 54 F.4th 307, 310 (5th
Cir. 2022) (quotation omitted). Congress gave federal district courts
jurisdiction over “all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. It’s undisputed that
plaintiffs’ claims arise under federal law, both constitutional and statutory.
It’s also undisputed that the CSRA nowhere expressly repeals district courts’
§ 1331 jurisdiction over plaintiffs’ claims. The Government’s contention,
however, is that the CSRA implicitly repeals § 1331 jurisdiction over
plaintiffs’ claims.
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Implicit jurisdiction-stripping turns on whether it’s “fairly
discernible” from the statutory scheme that Congress silently took away the
jurisdiction that § 1331 explicitly conferred. “To determine whether it is
‘fairly discernible’ that Congress precluded district court jurisdiction over
petitioners’ claims, we examine the CSRA’s text, structure, and purpose.”
Elgin v. Dep’t of Treasury, 567 U.S. 1, 10 (2012) (citations omitted). We (A)
begin with the CSRA’s text and structure. Then we (B) discuss the statute’s
purpose. Then we (C) hold that the CSRA does not apply to the plaintiffs’
claims and hence does not implicitly displace § 1331 jurisdiction.
A.
We begin with the CSRA’s text and structure. The CSRA’s
“statutory framework provides graduated procedural protections depending
on an [employment] action’s severity.” Kloeckner v. Solis, 568 U.S. 41, 44
(2012). Two parts of that graduated procedural framework are central to this
case.
The first is codified at Chapter 23. See 5 U.S.C. §§ 2301 et seq. Chapter
23 is the bottom of the CSRA’s pyramid. It governs the least severe
employment actions the Government can take and provides concomitantly
fewer procedural protections and remedies for federal employees aggrieved
by those employment actions.
Specifically, Chapter 23 prohibits federal employers from using a
“prohibited personnel practice,” id. § 2302(a)(1), (b), to take a certain
“personnel action,” id. § 2302(a)(2)(A). Chapter 23’s “prohibited
personnel practice[s]” include various forms of discrimination (race, age,
sex, &c.), nepotism, and retaliation for whistleblowing. See id. § 2302(b)(1)
(discrimination), (b)(7) (nepotism), (b)(8) (whistleblowing). The triggering
“personnel action[s]” are limited to the following twelve things:
(i) an appointment;
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(ii) a promotion;
(iii) an action under chapter 75 of this title or other disciplinary
or corrective action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter 43 of this title or
under title 38;
(ix) a decision concerning pay, benefits, or awards, or
concerning education or training if the education or training
may reasonably be expected to lead to an appointment,
promotion, performance evaluation, or other action described
in this subparagraph;
(x) a decision to order psychiatric testing or examination;
(xi) the implementation or enforcement of any nondisclosure
policy, form, or agreement; and
(xii) any other significant change in duties, responsibilities, or
working conditions;
Id. § 2302(a)(2)(A). Chapter 23’s personnel actions obviously do not include
severe measures such as demotions or terminations. 1
1
Section 2302(a)(2)(A)(iii) (“romanette iii”) cross-references “an action under
chapter 75 of this title.” Chapter 75 does not use the phrase “personnel action” but instead
uses the phrase “an action.” 5 U.S.C. §§ 7502, 7512 (subchapter titles); see also id.§ 7513(a), (b), (d), (e) (referring to “an action” taken against a federal employee). By virtue
of romanette iii’s cross-reference, “personnel action” includes both a Chapter 23
personnel action and a Chapter 75 action. Throughout this opinion, we use “Chapter 23
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Given that Chapter 23 applies only to relatively mild personnel
actions, Chapter 23’s review mechanisms are also relatively modest. When a
federal employee suffers a Chapter 23 “personnel action” based on a
“prohibited personnel practice,” the employee can file an allegation with the
Office of Special Counsel (“OSC”). Id. §§ 1214(a), 2302. The OSC, in turn,
can terminate the matter or refer it to the Merit Systems Protection Board
(“MSPB”). Id. § 1214(a)(2) (termination), (b) (referral). The employee can
then seek judicial review of the MSPB’s final order in the United States
Court of Appeals for the Federal Circuit. Id. §§ 1214(c), 7703(b)(1)(A).
Judicial review for Chapter 23 personnel actions is extremely limited,
however. As then-Judge Scalia explained: “judicial scrutiny [is] limited, at
most, to insuring compliance with the statutory requirement that the OSC
perform an adequate inquiry.” Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir.
1983) (quotation omitted).
The second part of the CSRA’s graduated procedural framework is
codified at Chapter 75. See 5 U.S.C. §§ 7501 et seq. Chapter 75 forms the top
of the CSRA’s pyramid and governs the most-severe employment actions—
such as suspensions, reductions in pay, and terminations. Id. §§ 7502,
7512(1)–(5). When the Government proposes a suspension of fourteen days
or less, the covered employee is entitled to notice, the opportunity to
respond, the right to an attorney, and the right to a written decision. Id.
§ 7503(b)(1)–(4). When the Government proposes any other Chapter 75
action, the covered employee receives these same protections, id. § 7513(b),
personnel actions” to refer to the non-Chapter-75, less-severe employment actions listed
in § 2302. We use “Chapter 75 personnel actions” or “Chapter 75 actions” to refer to the
more-severe employment actions such as demotion and termination listed in § 7512. And
unless context dictates otherwise, we use “personnel actions” or “CSRA-covered
personnel actions” to include any employment actions covered by the CSRA.
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and can also appeal to the MSPB, id. § 7513(d), and to the Federal Circuit,
id. § 7703(b)(1)(A).
Where a covered employee challenges a covered personnel action, the
CRSA’s review mechanisms are “exclusive.” Elgin, 567 U.S. at 13–14. Take
for example McAullife v. Rice, 966 F.2d 979 (5th Cir. 1992). There, a CSRA-
covered employee challenged the Chapter-75-covered termination of her
employment—but she tried to do it in the Western District of Texas under
the APA, rather than in the MSPB and Federal Circuit under the CSRA. See
id. at 979. We rejected the attempt because the CSRA provides the exclusive
jurisdictional (and remedial) font for covered federal employees when they are
challenging CSRA-covered personnel actions. See ibid.The italicized clause is very important for two reasons. First, the
Supreme Court has been clear that the CSRA eliminates § 1331 jurisdiction
only for personnel actions covered by the CSRA. For example, in United
States v. Fausto, 484 U.S. 439 (1988), the Court said the CSRA “displays a
clear congressional intent to deny the excluded employees the protections of
Chapter 75—including judicial review—for personnel action covered by that
chapter.” Id. at 447 (emphasis added). Likewise in Elgin, the Court repeatedly
limited its holding to the CSRA’s jurisdictional effects on “a covered
employee challeng[ing] a covered action,” 567 U.S. at 13; “a covered
employee’s appeal of a covered action,” ibid.; and “a covered employee
[attempting to] challenge a covered employment action first in a district
court,” id. at 14 (all emphases added); see also id. at 10, 20–21 (reiterating the
limitation). The Court has never suggested—much less held—that the
CSRA implicitly strips § 1331 jurisdiction over federal employees’ claims
outside the CSRA’s covered personnel actions. See Bosco v. United States, 931
F.2d 879, 883 (Fed. Cir. 1991) (“The Supreme Court did not rule that the
CSRA provided the only means of judicial review of any actions affecting
federal employees, but rather that it was the only means of review as to the
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types of adverse personnel action specifically covered by the CSRA . . . .”
(emphases in original)).
Second, the Court has expressly said the opposite—that the CSRA
does nothing to affect jurisdiction outside of its covered personnel actions:
Not all personnel actions are covered by this [CSRA] system.
For example, there are no provisions for appeal of either
suspensions for 14 days or less or adverse actions against
probationary employees. In addition, certain actions by
supervisors against federal employees, such as wiretapping,
warrantless searches, or uncompensated takings, would not be
defined as ‘personnel actions’ within the statutory scheme.
Bush v. Lucas, 462 U.S. 367, 385 n.28 (1983) (citations omitted). In
accordance with this express command, federal courts across the country
have time and again held that the CSRA does not strip § 1331 jurisdiction
when federal employees challenge something other than a CSRA-covered
personnel action. For example, installing a hidden camera in the women’s
changing area of a VA medical center is not a CSRA-covered personnel action
and hence can be challenged outside the CSRA. See Gustafson v. Adkins, 803
F.3d 883, 888 (7th Cir. 2015) (“Under the plain language of the statute, the
term ‘personnel action’ does not encompass Adkins’s conduct . . . [of]
installing the hidden camera . . . .”). Same with assaulting a federal employee.
See Orsay v. DOJ, 289 F.3d 1125, 1131 (9th Cir. 2002), abrogated on other
grounds by Millbrook v. United States, 569 U.S. 50 (2013) (“Claxton’s alleged
aiming of a loaded weapon at Appellants does not fit any of the CSRA’s
definitions of ‘personnel action.’ Consequently, the CSRA does not bar
Appellants’ [Federal Tort Claims Act] claims . . . .”); Brock v. United States,
64 F.3d 1421, 1425 (9th Cir. 1995) (sexual assault). Same with libeling a
federal employee. See Gutierrez v. Flores, 543 F.3d 248, 253–54 (5th Cir.
2008) (holding the CSRA does not apply or strip jurisdiction because “this
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case does not involve . . . any adverse employment action”). And same with
illegally searching a federal employee’s home. See Collins v. Bender, 195 F.3d
1076, 1080 (9th Cir. 1999) (“[W]e do not believe that Congress intended to
deputize government supervisors as chieftains of security forces that police
the private lives of their employees subject only to some administrative
oversight, and we do not believe that Congress meant to shoehorn into the
CSRA every odd occurrence where a supervisor forms and leads such a
renegade posse.”).
Consider for example the Third Circuit’s recent decision in
Manivannan v. DOE, 42 F.4th 163 (3d Cir. 2022). In that case, DOE
attempted to fire a CSRA-covered scientist and then allowed him to resign.
Manivannan sued DOE. Some of his claims challenged CSRA-covered
personnel actions and hence could be brought under only the CSRA (and not
under § 1331). Id. at 173 (holding employee could challenge DOE’s internal
investigation only under the CSRA because that investigation constituted a
CSRA-covered “significant change in working conditions”). But some of his
claims were not covered by the CSRA and hence could be brought in the
district court under § 1331. For example, DOE’s “decision to disclose an
employee’s records to state prosecutors is not an adverse action” under
Chapter 75 or a “personnel action” under Chapter 23. Ibid. Same with
DOE’s conversion of Manivannan’s personal property:
Even construing the CSRA’s language broadly, we fail to see
how an employer’s alleged conversion of a former employee’s
personal property, unrelated to the latter’s federal
employment, constitutes a ‘disciplinary or corrective action,’
5 U.S.C. § 2302(a)(2)(A)(iii), a ‘significant change in duties,
responsibilities, or working conditions,’ id.§ 2302(a)(2)(A)(xii), or any other employment action set out
in the statute.
Id. at 174.
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In short, the text and structure of the CSRA creates a decades-old,
well-established, bright-line rule: Federal employees must bring challenges
to CSRA-covered personnel actions through the CSRA, but they remain free
to bring other, non-CSRA challenges under the district courts’ general § 1331
jurisdiction.
B.
The CSRA’s purpose reinforces this conclusion. The CSRA was
enacted “to replace the haphazard arrangements for administrative and
judicial review of personnel action, part of the ‘outdated patchwork of
statutes and rules built up over almost a century.’” Fausto, 484 U.S. at 444(quoting S. Rep. No. 95-969, at 3 (1978)). The old system created different
grievance rights for federal employees in different agencies; it entailed
labyrinthine and uncertain administrative review mechanisms that
disincentivized managers from taking disciplinary action even when clearly
warranted. See id. at 444–45 (citing S. Rep. No. 95-969, at 9 (1978)). The
CSRA “replaced the patchwork system with an integrated scheme of
administrative and judicial review, designed to balance the legitimate
interests of the various categories of federal employees with the needs of
sound and efficient administration.” Id. at 445 (citing S. Rep. No. 95-969,
at 4 (1978)).
Thus, the CSRA’s purpose is to streamline and integrate the review
system for federal employees’ challenges to personnel actions. It does nothing
to promote that purpose to interpret the CSRA as stripping § 1331
jurisdiction over disputes beyond CSRA-covered personnel actions. If
anything, it would disserve the CSRA’s purposes to rewrite it, as the
Government requests, to strip jurisdiction over every claim any federal
employee could ever bring. That’s because the MSPB has expertise in the
byzantine procedures for taking and challenging CSRA-covered personnel
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actions, but it knows nothing about peephole cameras and wiretaps and
searches. It would substantially burden the MSPB to task it with such non-
CSRA matters. And more to the point, if Congress wanted to make the CSRA
process applicable to every claim an employee could ever bring against a
federal employer, it could’ve said so. That would’ve made the CSRA less
complicated by obviating all the personnel-action limitations in Chapter 23
and Chapter 75—a road Congress plainly did not take. See SAS Inst., Inc. v.
Iancu, 138 S. Ct. 1348, 1357 (2018) (“We need not and will not invent an
atextual explanation for Congress’s drafting choices when the statute’s own
terms supply an answer.” (quotation omitted)).
The Government offers two responses. First, the Government claims
that allowing plaintiffs to bring suits in district court would undermine the
CSRA’s purpose of creating “an integrated scheme of review.” Gov’t En
Banc Br. 22. The theory appears to be that federal employees can’t otherwise
sue in district court, so it would undermine the integration of the MSPB and
the Federal Circuit to allow this case to get past the CSRA’s roadblocks. This
contention is quite odd. As the Government well knows, one of the most
common suits brought by federal employees is the so-called “mixed case.”
It’s so-called because the employee mixes CSRA-covered claims (for
example, for CSRA-governed Chapter 75 violations) with non-CSRA claims
(for example, for sex discrimination under Title VII). See Kloeckner, 568 U.S.
at 44–48 (describing mixed cases). Both Congress and the Supreme Court
say that federal employees are free to bring their mixed cases in district court
without ever dealing with the MSPB or the Federal Circuit in any way. See 5
U.S.C. § 7703(b)(2); Kloeckner, 568 U.S. at 50 (holding “mixed cases shall
be filed in district court”); see also Punch v. Bridenstine, 945 F.3d 322, 324–25
(5th Cir. 2019) (holding “the employee [bringing a mixed case] need not start
with the MSPB—or take any of the roads running from it”—and instead can
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file in district court). Thus, it’s simply not true that federal employees face
an “integrated” grievance system that never includes district court.
Second, the Government claims that it would create a “gaping
loophole” if employees could see a CSRA-covered personnel action coming
down the pike and then race to district court to invoke § 1331 jurisdiction
before it otherwise disappears. Gov’t En Banc Br. 22. Of course it’s our job
to interpret the words Congress actually wrote, not to entertain such policy
arguments for writing the CSRA differently. See, e.g., Domino’s Pizza, Inc. v.
McDonald, 546 U.S. 470, 479 (2006). And in any event, the Government’s
policy concerns misunderstand the nature of plaintiffs’ claims. In a case like
this one, where plaintiffs are not challenging a CSRA-covered personnel
action, § 1331 jurisdiction would not disappear even if the Government took
CSRA-covered personnel actions against them. That’s why, for example,
Manivannan could litigate his non-CSRA claims even after incurring a CSRA-
covered personnel action. See Manivannan, 42 F.4th at 174. So there’s no
race to the courthouse because the plaintiff can stay in district court before or
after the CSRA-covered personnel action so long as he’s not challenging that
CSRA-covered personnel action.
C.
The text, structure, and purpose of the CSRA all show that it provides
the exclusive review procedures and employment remedies for CSRA-
covered personnel actions. The dispositive question therefore is whether
plaintiffs are challenging CSRA-covered personnel actions. If they are, they
must channel their claims through the CSRA; if they are not, their claims are
cognizable in the district court.
We hold plaintiffs are not challenging CSRA-covered personnel
actions. Plaintiffs are challenging (under the Constitution, the APA, and the
DJA) the President’s executive orders requiring federal employees to make
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irreversible medical decisions to take COVID-19 vaccines. “Even construing
the CSRA’s language broadly, we fail to see how an employer’s” medical
mandate could constitute a covered personnel action. Ibid.
We (1) begin with Chapter 23. Then we (2) discuss Chapter 75.
1.
First, the Government fails to prove plaintiffs are challenging a
“personnel action” under Chapter 23. Neither § 2302(a)(2)(A)(xii)
(“romanette xii”) nor § 2302(a)(2)(A)(iii) (“romanette iii”) applies to
plaintiffs’ claims.
Romanette xii
Romanette xii is a residual clause that appears at the end of a twelve-
item list. After defining Chapter 23’s “personnel action[s]” to include things
such as appointments, promotions, and reassignments, Congress concluded
the list by covering “any other significant change in duties, responsibilities,
or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). Such residual clauses
trigger “the maxim ejusdem generis, the statutory canon that where general
words follow specific words in a statutory enumeration, the general words are
construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words.” Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 114–15 (2001) (quotation omitted). All eleven of the
personnel actions that precede romanette xii are typical, everyday
employment decisions to, say, promote or reassign a single employee; none
is an irrevocable decision that extends beyond the term of employment. See
Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 367 (D.D.C. 2020)
(“[C]ourts 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.”).
Accordingly, we must interpret romanette xii to refer to these discrete
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employment decisions—not government-wide mandates that commandeer
the personal medical decisions of every federal employee. And we must
interpret romanette xii to only include conditions that last for the duration of
the employee’s job tenure—not mandated vaccinations that have
consequences long after the employee leaves the federal workforce.
Moreover, it strains romanette xii’s text far beyond its breaking point
to say it includes permanent medical decisions made outside the workplace.
“[D]uties, responsibilities, or working conditions” plainly refer to duties,
responsibilities, or working conditions of the employee’s workplace. 5 U.S.C.
§ 2302(a)(2)(A)(xii). It doesn’t apply to personal medical choices. That
result follows a fortiori from Gustafson because if “working conditions” does
not include peephole cameras in workplace changing rooms, it certainly does
not include private, irreversible medical decisions made in consultation with
private medical professionals outside the federal workplace. See 803 F.3d at
888.
This interpretation of romanette xii is further reinforced by the
Supreme Court’s decision in NFIB v. OSHA, 142 S. Ct. 661 (2022) (per
curiam). There, the Court considered whether OSHA’s COVID-19 vaccine
mandate could constitute an “occupational safety and health standard[].” Id.
at 665 (quoting 29 U.S.C. § 655(b)). The Court held no—both because “[w]e
expect Congress to speak clearly when authorizing an agency to exercise
powers of vast economic and political significance,” and because workplace-
safety standards refer to “hazards that employees face at work” and not
“day-to-day dangers that all face from crime, air pollution, or any number of
communicable diseases.” Ibid. (quotation omitted). Likewise here, Congress
would need to speak much more clearly than it did in romanette xii if it
wanted to strip § 1331 jurisdiction over challenges to a mandate that extends
to every single federal employee’s irreversible medical decisions. Cf. Sistek v.
Dep’t of Veterans Affs., 955 F.3d 948, 954–56 (Fed. Cir. 2020) (holding
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Congress’s enumeration of eleven specific personnel actions in the first
eleven clauses of § 2302(a)(2)(A) precludes interpreting the residual clause
in romanette xii to include a modest retaliatory investigation of a single
employee).
Romanette iii
Nor does romanette iii help the Government. It defines Chapter 23’s
“personnel action[s]” to include “disciplinary or corrective action” against
federal employees. 5 U.S.C. § 2302(a)(2)(A)(iii). But plaintiffs have not
received any “disciplinary or corrective action,” and hence their claims do
not challenge such actions. Some plaintiffs received “letters of counseling”
and “letters of reprimand” for their failures to comply with the executive
order. ROA.1195–1202, 1204, 1206, 1212, 1216, 1229, 1232, 1242, 1244, 1486,
1493, 1745. But it’s well settled that such letters are not “disciplinary or
corrective action[s]” under the CSRA. See, e.g., Sistek, 955 F.3d at 955–57
(letter of reprimand was not a “personnel action” under the CSRA); Graham
v. Ashcroft, 358 F.3d 931, 933 (D.C. Cir. 2004) (Roberts, J.) (letter of censure
was not a “personnel action” under the CSRA). 2 Absent any evidence of
such action, the Government has no basis to suggest plaintiffs’ claims are
governed by romanette iii.
And the Government all but concedes the point. In its panel-stage
brief, the Government obliquely suggests an employee could seek review
under the CSRA when he receives a letter of reprimand, but it never explains
2
The circuits likewise have held that letters of reprimand and other written
warnings are not “materially adverse actions” in the analogous Title VII context. See
Durant v. D.C. Gov’t, 875 F.3d 685, 698 (D.C. Cir. 2017); Baloch v. Kempthorne, 550 F.3d
1191, 1199 (D.C. Cir. 2008) (Kavanaugh, J.); Medina v. Income Support Div., N.M., 413 F.3d
1131, 1137 (10th Cir. 2005); Whitaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir. 2005);
Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002); Krause v. City of La Crosse, 246 F.3d
995, 1000 (7th Cir. 2001).
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how or why such review comports with a wall of contrary precedent from
around the country. Moreover, the Government concedes that receipt of a
letter is merely “an early stage of [a] still-hypothetical progressive disciplinary
process.” Blue Br. 24 (emphasis added). That concession all but proves that
counseling and reprimand letters do not trigger the CSRA’s review
provisions. And it’s telling that the Government abandons the point
altogether in its later-filed briefs. 3
2.
Second, the Government fails to prove that Chapter 75 implicitly
strips the court of jurisdiction. As Judge Barksdale noted in his panel
dissent, the Government has never argued that plaintiffs have suffered any of
the Chapter 75 personnel actions. See Feds for Medical Freedom, 30 F.4th at
513 (Barksdale, J., dissenting). And as Judge Barksdale correctly
concluded, “[t]he EO’s enactment . . . does not constitute an adverse action
subject to CSRA. The case at hand is instead a pre-enforcement challenge to
a government-wide policy, imposed by the President, that would affect the
2.1 million federal civilian workers, including the 6,000 members of Feds for
Medical Freedom.” Ibid.
In its en banc briefs, the Government does not contest Judge
Barksdale’s premise; it effectively concedes that plaintiffs have not yet
incurred reviewable Chapter 75 employment actions. Rather, the
Government (incorrectly) contests Judge Barksdale’s conclusion; it
contends plaintiffs might one day incur Chapter 75 actions, and that alone
should implicitly strip the jurisdiction explicitly conferred by § 1331 today.
3
Even if Chapter 23 did govern plaintiffs’ claims, it’s entirely speculative to think
plaintiffs could ever get them before a federal court. See infra Part IV (discussing the OSC
process).
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We disagree. “It is quite clear, that the jurisdiction of the Court
depends upon the state of things at the time of the action brought, and that
after vesting, it cannot be ousted by subsequent events.” Mollan v. Torrance,
22 U.S. (9 Wheat.) 537, 539 (1824); see also Carr v. Alta Verde Indus., Inc., 931
F.2d 1055, 1061 (5th Cir. 1991) (“As with all questions of subject matter
jurisdiction except mootness, standing is determined as of the date of the
filing of the complaint, and subsequent events do not deprive the court of
jurisdiction.”). And it’s equally clear that we do not make jurisdictional
determinations based on hypothetical future facts. See, e.g., Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409–11 (2013) (rejecting attempt to make
jurisdictional determinations based on “[a]llegations of possible future
injury” and “mere speculation” about what the Government will do
(quotation omitted)). Just as plaintiffs cannot invoke a district court’s
jurisdiction based on speculation about what the Government will do in the
future, the Government cannot deny a district court’s jurisdiction based on
speculation about what its employment supervisors will do in the future. 4
4
The contrary rule would have untenable consequences. Consider, for example,
the amount-in-controversy requirement for diversity jurisdiction under 28 U.S.C. § 1332.
“Events occurring subsequent to the institution of suit which reduce the amount
recoverable below the statutory limit do not oust jurisdiction.” St. Paul Mercury Indem. Co.
v. Red Cab Co., 303 U.S. 283, 289–90 (1938). “[O]nce the district court’s jurisdiction is
established, subsequent events that reduce the amount in controversy to less than $75,000
generally do not divest the court of diversity jurisdiction.” Gebbia v. Wal-Mart Stores, Inc.,
233 F.3d 880, 883 (5th Cir. 2000) (citations omitted). “Importantly, the jurisdictional facts
must be judged as of the time the complaint is filed; subsequent events cannot serve to
deprive the court of jurisdiction once it has attached.” St. Paul Reinsurance Co., Ltd. v.
Greenberg, 134 F.3d 1250, 1253–54 (5th Cir. 1998) (citations omitted). Yet on the
Government’s theory here, a defendant could defeat diversity jurisdiction by saying: “We
recognize plaintiffs properly pleaded an amount in controversy of $75,001, but we’ll
produce documents in discovery to show the real amount in controversy is around
$25,000.” Such future-hypothetical-fact arguments have never been allowed to defeat (or
create) subject matter jurisdiction.
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Plaintiffs’ complaint does not challenge any personnel action
reviewable under the CSRA. Nor does it challenge any personnel action they
could hypothetically incur in the future. Rather, plaintiffs claim that the
President’s vaccine mandate violates the U.S. Constitution and the APA. See
Manivannan, 42 F.4th at 172 (“[W]hen assessing whether the CSRA bars
federal jurisdiction over an otherwise reviewable claim, courts should look to
the specific underlying conduct being challenged to determine whether that
conduct is an employment action covered by the statute.” (emphasis
added)). 5 The Government does not dispute that plaintiffs’ claims are ripe
and otherwise cognizable under § 1331. And we can find nothing in the
CSRA’s text, structure, or purpose that implicitly displaces that jurisdiction
for a claim outside the CSRA’s coverage. We therefore hold that the district
court properly exercised its jurisdiction over plaintiffs’ claims.
III.
Our reading of the CSRA’s text, structure, and purpose is confirmed
by precedent. A long line of cases establishes that federal employees can bring
facial, pre-enforcement actions against federal policies outside of the CSRA.
For example, in NFFE v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987),
civilian federal employees sued to enjoin a directive establishing a “Drug
Abuse Testing Program.” Id. at 937. The government argued that the CSRA
precluded pre-enforcement review in federal court. Rejecting this argument,
the court noted that its decisions “have made it absolutely clear that civilian
5
Judge Higginson points out that some members of Feds for Medical
Freedom may have incurred adverse personnel actions. See post, at 66–67 & n.8 (Higginson,
J., dissenting). That would matter only if such actions could displace § 1331 jurisdiction
that otherwise attaches to claims that do not implicate the CSRA. See supra, at 12 (rejecting
this contention); accord Manivannan, 42 F.4th at 174.
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federal employees may seek to enjoin government actions that violate their
constitutional rights.” Id. at 940 (citation omitted).
NTEU v. Devine, 733 F.2d 114 (D.C. Cir. 1984), similarly rejected the
government’s argument that the CSRA precludes jurisdiction over pre-
enforcement challenges. The court held:
This claim is meritless. It is one thing to say that when a statute
provides a detailed scheme of administrative protection for
defined employment rights, less significant employment rights
of the same sort are implicitly excluded and cannot form the
basis for relief directly through the courts. It is quite different
to suggest, as appellant does, that a detailed scheme of
administrative adjudication impliedly precludes
preenforcement judicial review of rules.
Id. at 117 n.8 (citations omitted).
The Supreme Court has also, on multiple occasions, entertained pre-
enforcement challenges to laws or directives affecting federal employees
without a word about CSRA preclusion. See, e.g., NTEU v. Von Raab, 489
U.S. 656 (1989) (pre-enforcement challenge to drug-testing program for
federal employees); United States v. NTEU, 513 U.S. 454 (1995) (pre-
enforcement challenge to a law prohibiting federal employees from accepting
honoraria).
We have done the same. For example, in AFGE v. FLRA, 794 F.2d
1013 (5th Cir. 1986), we cited Devine for the proposition that a union of
federal employees would be able to bring a pre-enforcement challenge to
OPM regulations in district court. See id. at 1015–16. Similarly, in NTEU v.
Bush, 891 F.2d 99 (5th Cir. 1989), we addressed the merits of a pre-
enforcement suit challenging an executive order mandating drug testing for
federal employees. See id. at 100. We didn’t mention CSRA preclusion, even
though the claims in the suit centered on the CSRA. See ibid.
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The Government has two responses. First, it points out that these
cases predate Elgin, which according to the Government, abrogated them.
But as we recently held in Cochran v. SEC, 20 F.4th 194 (5th Cir. 2021) (en
banc), cert. granted, 142 S. Ct. 2707 (2022), Elgin did not “break new ground”
regarding implicit preclusion. Id. at 206. Nor did Elgin address pre-
enforcement challenges at all. And the Government’s position entails that
Elgin held sub silentio that the Court lacked jurisdiction in all its past cases
entertaining pre-enforcement challenges to federal employment policies—
including Von Raab and United States v. NTEU. So Elgin can’t support the
weight the Government puts on it.
The Government’s other response is to claim that most of these
decisions involve “drive-by jurisdictional rulings” on the scope of CSRA
preclusion. Gray Br. 6 (quoting Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 91 (1998)). That’s certainly not true of Weinberger and Devine. In
those cases, the D.C. Circuit carefully considered and emphatically rejected
the Government’s theory of CSRA preclusion as “discredited” and
“meritless.” Weinberger, 818 F.2d at 939–42; Devine, 733 F.2d at 117 n.8. So
it’s no surprise that litigants and courts gave it less-thorough consideration
in later cases.
IV.
Because the CSRA’s text, structure, and purpose foreclose the
Government’s implicit-jurisdiction-stripping theory, we need not proceed to
an analysis of the factors listed in Thunder Basin Coal Co. v. Reich, 510 U.S.
200 (1994). See Elgin, 567 U.S. at 10; Cochran, 20 F.4th at 204. But even if
we reach them, those factors only confirm that the CSRA left intact the
district court’s jurisdiction over this suit.
The first Thunder Basin factor is whether “a finding of preclusion
could foreclose all meaningful judicial review.” 510 U.S. at 212–13. The
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Government contends that plaintiffs have two avenues for meaningful
judicial review: Chapter 23 and the All Writs Act, 28 U.S.C. § 1651.
Chapter 23 provides no guarantee of judicial review—much less a
meaningful one. With exceptions not relevant here, 6 claims covered by
Chapter 23 are vindicable only by OSC. And here’s how the OSC process
works: The employee first files a complaint with the OSC. See 5 U.S.C.
§ 1214(a)(1)(A). If the OSC finds “reasonable grounds” of a “prohibited
personnel practice,” the OSC must report it to the employing agency,
MSPB, and OPM. Id. § 1214(b)(2)(B). If the agency doesn’t fix the problem,
the OSC “may petition” to the MSPB. Id. § 1214(b)(2)(C) (emphasis added).
And only a final order from the MSPB is reviewable before the Federal
Circuit. See id. § 1214(c). This process gives the OSC total and unfettered
discretion to decide whether to bring the claims before the MSPB. See
Krafsur v. Davenport, 736 F.3d 1032, 1034 (6th Cir. 2013) (“[I]f the Special
Counsel . . . declines to refer the case to the Board, the employee is out of
luck. A court may not review the Special Counsel’s decisions unless the
Counsel has declined to investigate a complaint at all.” (quotation omitted)).
Its decisions not to pursue claims are unreviewable. Cf. Heckler v. Chaney,
470 U.S. 821, 837 (1985) (prosecutorial discretion not reviewable).
This is not particularly surprising, given that Chapter 23 is the bottom
of the CSRA’s pyramid and warrants the fewest procedural protections for
federal employees. See Carducci, 714 F.2d at 175. But the narrowness of
Chapter 23’s review provisions—and the fact that any review at all turns on
6
For example, Congress created an “individual right of action” in certain reprisal
cases under § 2302(b)(8) and § 2302(b)(9)(A)(i), (B), (C), and (D) that allows some
employees to sue without OSC’s involvement. See 5 U.S.C. §§ 1221, 1214(a)(3); Orr v.
Dep’t of Treasury, 83 M.S.P.R. 117 (1999). But the Government doesn’t argue that this
exception, or any other, applies.
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the unreviewable discretion of Government officials—puts the lie to the
Government’s two-sentence suggestion that the OSC or MSPB could or
would give the plaintiffs relief against a nationwide vaccine mandate. See
Gov’t En Banc Br. 26 (so suggesting).
As for the Government’s invocation of the All Writs Act, it proves
both too much and too little. It’s too much because the Government cannot
explain how the CSRA implicitly strips § 1331 jurisdiction but somehow does
not strip § 1651 jurisdiction. And all of the Government’s policy arguments
about the former—that it undermines the CSRA’s “integrated” review,
creates a “loophole,” &c.—apply equally to the latter. But the
Government’s reliance on the All Writs Act also proves too little because as
the Government itself concedes, mandamus relief is a “drastic and
extraordinary” remedy “reserved for really extraordinary causes.” Cheney v.
U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (quotation omitted). So it’s
hard to see how it provides “meaningful review.” Moreover, as then-Judge
Roberts noted for the D.C. Circuit, employees with CSRA-covered claims
cannot avail themselves of the All Writs Act. See Fornaro v. James, 416 F.3d
63, 69–70 (D.C. Cir. 2005). So the only way the All Writs Act could apply,
on the Government’s own logic, is to hold that the plaintiffs’ claims are
outside the CSRA, thus obviating the need for the All Writs Act in the first
place. In all events, the All Writs Act does not provide “meaningful review”
here.
The second Thunder Basin factor is whether plaintiffs’ claims are
“wholly collateral” to the CSRA’s review provisions. 510 U.S. at 212(quotation omitted). “[W]hether a claim is collateral to the relevant
statutory-review scheme depends on whether that scheme is intended to
provide the sort of relief sought by the plaintiff.” Cochran, 20 F.4th at 207.
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This factor again cuts against stripping the district court of
jurisdiction. As detailed in Part II.A, the CSRA scheme is a highly reticulated
web of statutes and regulations spanning multiple federal agencies (including
the employee’s own, the OSC, the OPM, the EEOC, and the MSPB) with
overlapping procedural requirements and complicated substantive rules. See,
e.g., Butler v. West, 164 F.3d 634, 637 (D.C. Cir. 1999) (describing it as a
“complicated tapestry”). We’ve described the CSRA as a winding road
which cannot be driven by “the easily carsick.” Punch, 945 F.3d at 324. The
important point for present purposes, however, is that individual federal
employees are forced to navigate it to air their individual grievances regarding
individual personnel actions. The standard fare for the MSPB’s docket
includes employee misconduct, hostile work environments, whistleblowing,
and the like. No part of it includes reviewing an executive order for
compliance with the APA or ordering injunctive relief that affects thousands
or millions of employees. No part of its byzantine procedures is suited for (or
even appears to allow) an emergency preliminary injunction. And the
Government does not cite a single case, nor have we found one, where OSC
agreed in its unreviewable discretion to petition the MSPB for relief that
remotely resembles what plaintiffs request here.
The Government nevertheless contends plaintiffs’ claims are not
wholly collateral to the CSRA because what plaintiffs really want is to “avoid
adverse employment action,” namely their terminations. Gov’t En Banc Br.
17, 21–22. This is an untenable recharacterization of plaintiffs’ suit, which
prayed to have a federal court “[h]old unlawful and set aside the Federal
Employee Mandate” and did not make specific employment-related claims.
ROA.138 (complaint). Declaring unlawful an executive order that requires
millions of people to undergo a medical procedure is hardly “relief that the
CSRA routinely affords.” Elgin, 567 U.S. at 22.
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The third Thunder Basin factor is whether the claims at issue are
“outside the agency’s expertise.” 510 U.S. at 212. As in Cochran, this case
involves constitutional issues and “standard questions of administrative law,
which the courts are at no disadvantage in answering.” 20 F.4th at 207–08
(quotation omitted). By contrast, MSPB’s expertise lies in “ensur[ing] that
Federal employees are protected against abuses by agency management, that
Executive branch agencies make employment decisions in accordance with
the merit system principles, and that Federal merit systems are kept free of
prohibited personnel practices.” Merit Systems Protection
Board, An Introduction to the Merit Systems
Protection Board 5 (1999).
The Government doesn’t argue that plaintiffs’ claims fall under the
MSPB’s expertise. Rather, the Government argues that “the MSPB’s
resolution of preliminary questions unique to the employment context could
obviate the need to address” plaintiffs’ claims. Gov’t En Banc Br. 17
(quotation omitted) (emphasis added). The Government provides no further
support for this claim, however, and we therefore hold that it’s forfeited.
Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc.,
892 F.3d 719, 732 (5th Cir. 2018).
V.
Judge Higginson’s dissent warrants a few additional words. He
agrees that we have jurisdiction over plaintiffs’ constitutional claims. Thus,
thirteen of the seventeen members of our en banc court agree that the CSRA
does not implicitly strip the jurisdiction that § 1331 explicitly confers on the
district court to hear plaintiffs’ constitutional claims. And eleven members
agree that the CSRA does not implicitly strip jurisdiction over any of
plaintiffs’ claims, constitutional and non-constitutional alike. But he
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disagrees with how we reach that conclusion. We write to address these areas
of disagreement.
A.
As an initial matter, Judge Higginson’s disagreement with the
majority opinion is perplexing. On the one hand, the dissenting opinion says
“the CSRA does not provide meaningful judicial review of the plaintiffs’ pre-
enforcement challenge and [therefore] Congress did not intend the CSRA to
foreclose judicial review of their separation-of-powers claim” against the
vaccine requirement, post, at 50 (Higginson, J., dissenting) (emphasis added),
and “nothing in the CSRA shows that Congress meant to preclude federal
jurisdiction to adjudicate separation-of-powers challenges to employment
policies set by the President,” id. at 76 (emphasis added). On the other hand,
the dissenting opinion says, “Congress’s intent to preclude judicial review
over challenges to the [vaccine] requirement is fairly discernible within the
statutory scheme,” id. at 63, “Congress’s intent to preclude jurisdiction over
pre-enforcement challenges is fairly discernible in the statute,” id. at 64, and
“the only conclusion consistent with the text of the [CSRA] and binding
Supreme Court authority is that Congress’s intent to preclude pre-
enforcement challenges is fairly discernible in the CSRA,” id. at 69. It’s
difficult to reconcile these two positions.
The dissent tries to square that circle by arguing that plaintiffs’
separation-of-powers challenges raise unique constitutional concerns and
thereby preclude Congress from implicitly stripping § 1331 jurisdiction in this
case. See, e.g., id. at 75–76 & n.16. But it’s unclear where the dissenting
opinion would root its concerns in the Constitution or Supreme Court
precedent. True, the Supreme Court has said the Constitution requires a
federal forum for certain habeas claims, see Boumediene v. Bush, 553 U.S. 723,
795 (2008), and takings claims, see First Eng. Evangelical Lutheran Church of
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Glendale v. Los Angeles Cnty., Cal., 482 U.S. 304, 315–19 (1987); Richard
H. Fallon, Jr., John F. Manning, Daniel J. Meltzer &
David L. Shapiro, Hart & Wechsler’s The Federal Courts
and the Federal System 330 (7th ed. 2015) [Hart & Wechsler].
But it’s well established that Congress need not provide a federal forum for
constitutional claims more generally. To the contrary, the first Congress did
not create general federal question jurisdiction in the Judiciary Act of 1789,
so all manner of constitutional claims were denied a federal forum at the
Founding without offending any constitutional principle. See Hart &
Wechsler, supra, at 25–26; Daniel J. Meltzer, The History and Structure of
Article III, 138 U. Pa. L. Rev. 1569, 1585–93 (1990). 7
Even if the dissenting opinion could identify a constitutional problem
to be avoided, it then must identify an alternative interpretation of the
statutory text that avoids it. See Nielsen v. Preap, 139 S. Ct. 954, 972 (2019)
(“The trouble with this argument is that constitutional avoidance comes into
play only when, after the application of ordinary textual analysis, the statute
is found to be susceptible of more than one construction. The canon has no
application absent ambiguity.” (quotation omitted)); Zadvydas v. Davis, 533
U.S. 678, 696 (2001) (“Despite this constitutional problem, if Congress has
made its intent in the statute clear, we must give effect to that intent.”
7
If the dissenting opinion intends to ally itself with an Amarian conception of
Article III, § 2, clause 1—namely, that Congress somehow must provide a federal forum
for all cases arising under federal law, see Akhil R. Amar, A Neo-Federalist View of Article III:
Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985)—then it
proves too much. That’s because Article III, § 2, clause 1 says the judicial power extends
to “all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United
States . . . .” (emphasis added). The Amarian view of Article III would require Congress to
provide a federal forum for plaintiffs’ statutory APA claims, which the dissenting opinion
expressly rejects. See post, at 70 n.12 (Higginson, J., dissenting) (arguing Congress can strip
all jurisdiction over plaintiffs’ claims arising under the APA).
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(quotation omitted)). But the dissent raises no such plausible alternative
reading. It simply says there’s a constitutional problem of unknown
constitutional provenance, so plaintiffs must win to avoid it. That’s a quite-
odd form of constitutional avoidance.
B.
Second, the dissent argues that the CSRA implicitly strips § 1331
jurisdiction over CSRA-covered personnel actions. See, e.g., post, at 54
(Higginson, J., dissenting). We agree. Elgin, Fausto, this majority opinion,
and the dissent all agree (quite clearly) that where the CSRA applies, it
implicitly strips the district court’s § 1331 jurisdiction. The question of
course is whether the CSRA applies.
And on that question, the dissent appears to say that the CSRA applies
to both personnel actions and pre-enforcement personnel actions. But this
proposition belies confusion over (1) what plaintiffs are challenging and
(2) what sort of jurisdiction the CSRA strips. Plaintiffs are challenging the
President’s vaccine mandate—not any personnel action that may or may not
be taken in conjunction with that mandate. And the CSRA’s implicit effects
on jurisdiction depend on the claims plaintiffs choose to bring. That’s why
the CSRA can apply when a plaintiff challenges his demotion or termination
under Chapter 75 and not apply when the employee’s boss installs a hidden
camera in a workplace changing room. See supra, at 8. Thus, if the employee
is subject to surveillance and then gets fired, she has a multitude of claims.
She might, for example, challenge her termination—which would be subject
to the CSRA/MSPB process. But if the employee seeks damages for the
invasion of privacy itself, which is an obvious injury separate and apart from
the employment action, that challenge does nothing to trigger the CSRA or
to implicitly strip § 1331 jurisdiction. See Gustafson, 803 F.3d at 888; Bush,
462 U.S. at 385 n.28.
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So it might be true, as the dissenting opinion sometimes suggests, that
the CSRA would implicitly strip jurisdiction over an employee’s pre-
termination suit to enjoin her termination (i.e., “pre-enforcement challenge
to a covered personnel action”). We take no position on that because it’s
irrelevant here. All that matters here is that plaintiffs have identified an illegal
vaccine mandate and, separate and apart from any personnel action the
President might one day take to enforce that illegal order, the plaintiffs want
judicial review of it. The CSRA does nothing to implicitly strip jurisdiction
over these claims because the vaccine mandate itself is not a personnel
action—even if a future employer at some future time might take some future
action to impose some future personnel action on a future plaintiff who might
violate the mandate in the future.
C.
The dissenting opinion next says the vaccine mandate itself is a
“working condition” of federal employment. That’s so, the dissent says,
because romanette xii’s reference to “working conditions” is so capacious
that it includes—and hence channels into the MSPB—any significant change
to any “circumstances under which an employee performs his or her job.”
Post, at 57 (Higginson, J., dissenting). Under the dissenting opinion’s theory,
it’s unclear there are any limits at all on what the President could call a change
in “working conditions.” But we know there are limits because the Supreme
Court has said that warrantless searches and wiretaps are so far afield from
the CSRA’s list of personnel actions that they remain actionable in district
court. See Bush, 462 U.S. at 385 n.28; see also Collins, 195 F.3d at 1080. And
our sister circuits have said the same thing about peephole cameras and
assaults. See Gustafson, 803 F.3d at 888; Brock, 64 F.3d at 1425; Orsay, 289
F.3d at 1131.
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The dissenting opinion hazards no argument that an employee’s
irrevocable medical decision like the one at issue here is somehow the
employer’s prerogative in ways that wiretaps, peephole cameras, and assaults
are not. Rather, the dissenting opinion contends that Congress contravened
Bush v. Lucas (and Gustafson, Brock, Orsay, and Collins by extension) when it
added romanettes x through xii to the CSRA. See post, at 59–61 & n.5
(Higginson, J., dissenting). Those romanettes bring under the CSRA “a
decision to order psychiatric testing or examination,” “the implementation
or enforcement of any nondisclosure policy, form, or agreement,” and “any
other significant change in duties, responsibilities, or working conditions.” 5
U.S.C. § 2302(a)(2)(A)(x)–(xii). They say nothing about wiretaps, peephole
cameras, workplace assaults, or for that matter irrevocable medical decisions.
We cannot infer that Congress’s decision to cover nondisclosure agreements
under the CSRA brings with it an implied congressional decision to cover
elephantine medical decisions in romanette xii’s ambiguous catchall phrase.
To conclude otherwise, “we would have to conclude that Congress not only
had hidden a rather large elephant in a rather obscure mousehole, but had
buried the ambiguity in which the pachyderm lurks beneath an incredibly
deep mound of specificity, none of which bears the footprints of the beast or
any indication that Congress even suspected its presence.” ABA v. FTC, 430
F.3d 457, 469 (D.C. Cir. 2005) (Sentelle, J.).
Nor would it matter if the President ordered employees to make their
irrevocable medical decisions “at work.” Post, at 62 (Higginson, J.,
dissenting). The vaccine mandate still would not be covered by the CSRA in
any event. After all, the peephole camera in Gustafson was in the workplace.
See 803 F.3d at 886–87. So too with the hypothesized wiretaps in Bush. See
462 U.S. at 385 n.28. So too with the assaults in Brock. See 64 F.3d at 1425.
The reason these illegalities were actionable outside of the CSRA had
nothing to do with the location or timing of the employer’s actions. They
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were actionable outside of the CSRA because the definition of “personnel
action” cannot reasonably be read to include peephole cameras, assaults, or
illegal wiretaps. The same is true of irrevocable medical decisions. The fact
that the President ordered employees to make medical decisions outside of
the workplace—and to live with those irrevocable decisions even after they
leave the federal workforce—bolsters plaintiffs’ argument that the mandate
is not a “working condition.” But it’s not necessary.
D.
The dissenting opinion next contends that its reading of the CSRA is
compelled by “the logic of Fausto.” Post, at 64 (Higginson, J., dissenting).
Again, we respectfully disagree.
Fausto involved the removal of a federal employee—unquestionably a
“personnel action” covered by the CSRA. See 5 U.S.C.
§§ 2302(a)(2)(A)(iii), 7512(1) (covering “a removal”). While the CSRA
covered the employer’s personnel action, it did not cover Fausto himself
because he served in the “excepted service.” Fausto, 484 U.S. at 441 & n.1.
Because Congress carved Fausto out of the CSRA’s coverage, he sought
remedies under a different federal statute called the Back Pay Act, 5 U.S.C.
§ 5596. The question presented was whether Congress’s decision not to
cover Fausto under the CSRA impliedly preempted his ability to seek more
generous remedies under the Back Pay Act. The Court held yes because to
hold otherwise “would have given him greater rights than were available
under the CSRA to employees who enjoyed rights under that statute—
primarily those in the competitive service.” Graham, 358 F.3d at 934.
Likewise in Graham, the D.C. Circuit held that an employee covered
by the CSRA must use that process—and only that process—to challenge his
employer’s personnel actions. See ibid. And it did not matter that the
particular personnel action at issue in Graham (the issuance of a censure
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letter) was not one of the listed personnel actions covered by the CSRA. As
then-Judge Roberts wrote: “in granting review with respect to some
personnel actions under the CSRA, Congress meant to preclude review of
others.” Ibid.These cases teach that the CSRA establishes a comprehensive
framework for (1) federal employees challenging (2) personnel actions.
Under both Fausto and Graham, an employee cannot avoid the CSRA’s
implicit stripping of § 1331 jurisdiction by saying “Congress’s decision to
limit (1) covered employees and (2) covered personnel actions” should be
read to allow (1) uncovered employees to avoid the CSRA or (2) judicial
review of uncovered personnel actions.
But neither decision strips § 1331 jurisdiction over claims that do not
challenge personnel actions. That’s why, again, the Supreme Court said that
federal employees can bring claims unrelated to personnel actions outside of
the CSRA. See Bush, 462 U.S. at 385 n.28. Congress certainly could pass a
statute that says, “federal employers are suable under the CSRA and only
under the CSRA.” But that’s not what Congress said. Congress said
personnel-action claims must go through the CSRA process—thus leaving
undisturbed whatever § 1331 jurisdiction might otherwise attach to claims
unrelated to personnel actions, like wiretaps, peephole cameras, and
irrevocable medical decisions.
E.
The dissenting opinion is also incorrect to contend “this case is
justiciable because it involves challenges to CSRA-covered personnel
actions.” Post, at 67 (Higginson, J., dissenting). The dissent’s theory appears
to be that plaintiffs only have standing because the Government threatens to
take CSRA-covered personnel actions against noncompliant employees. See
ibid.
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We respectfully disagree because the plaintiffs alleged an injury
distinct from any personnel action. The mandated medical decision alone is
an injury. When a “regulation is directed at [plaintiffs] in particular” and
“requires them to make significant changes,” plaintiffs have suffered an
injury to challenge the order even if the Government has yet to elucidate the
precise consequences of failing to comply. Abbott Lab’ys v. Gardner, 387 U.S.
136, 154 (1967); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561–62 (1992).
Plaintiffs do not have to identify exactly how the Government will enforce
the mandate; it’s enough that plaintiffs face the ominous order, “get
vaccinated or else.” See Abbott Lab’ys, 387 U.S. at 151 (holding that plaintiffs
subject to a regulation had standing to challenge it even though the Attorney
General had yet to “authorize criminal and seizure actions for violations of
the statute”).
Moreover, plaintiffs did not seek or receive relief against any
personnel action. Plaintiffs only sought an injunction against the executive
order. The executive order nowhere references any threatened or actual
personnel action. See Exec. Order 14043. And the district court’s
injunction nowhere restricts the Government from bringing personnel
actions against plaintiffs. Rather, it prevents the Government from
“implementing or enforcing Executive Order 14043 until this case is resolved
on the merits.” ROA.1770. The Government is thus prohibited from
ordering plaintiffs to get vaccinated—but the Government is not prohibited
from taking personnel actions against them.
True, when a plaintiff seeks pre-enforcement review of a government
mandate, ripeness is always a concern. See, e.g., Abbott Lab’ys, 387 U.S. at
148. But in this case, it’s not difficult “to evaluate both the fitness of the
issues for judicial decision and the hardship to the parties of withholding
court consideration.” Id. at 149. The issue for judicial decision is the purely
legal one of whether the President can lawfully enact this order. See ibid.32
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(holding “the issues presented are appropriate for judicial resolution at this
time” because “all parties agree that the issue tendered is a purely legal
one”). And the hardships to the plaintiffs of withholding a decision are plain:
they’ll be forced to undergo irrevocable medical procedures and comply with
a potentially unlawful order or face unknown consequences that “may be
even more costly.” See id. at 153; id. at 152 (finding hardship and hence
ripeness where “[t]he regulations are clear-cut, and were made effective
immediately upon publication; [and the Government’s lawyers made clear]
that immediate compliance with their terms was expected”). The mandate
thus plainly affects plaintiffs’ “primary conduct” and hence is ripe for review
irrespective of any personnel actions the Government has taken or might
eventually take. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 810
(2003).
F.
Finally, the dissenting opinion claims that “[t]his circuit’s door is now
open to all pre-enforcement challenges to federal employment policies.
Plaintiffs are welcome to challenge any personnel action before it takes
place.” Post, at 67–68 (Higginson, J., dissenting) (footnote omitted). “But
this is one of those instances in which the dissent clearly tells us what the law
is not.” Waste Mgmt. of La., L.L.C. v. River Birch, Inc., 920 F.3d 958, 978 (5th
Cir. 2019) (Oldham, J., dissenting) (quotation omitted).
Plaintiffs in this circuit, as in every circuit of which we’re aware, are
not free to challenge federal personnel actions under § 1331. Instead,
challenges to federal personnel actions must be channeled through the CSRA
process. True, § 1331 jurisdiction remains undisturbed for claims that do not
challenge federal personnel actions. But even then, the eye of the federal
employee’s needle is narrow. The plaintiff still must demonstrate an injury
in fact under well-established standing principles. And if the employee seeks
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pre-enforcement review of a federal mandate, he must satisfy well-
established ripeness rules. 8 And even if the plaintiff can thread that needle,
again, he cannot “challenge any personnel action before it takes place.” Post,
at 68 (Higginson, J., dissenting). He can only challenge the Government’s
illegal actions that do not constitute a personnel action.
Ours is hardly the first court to recognize that this needle, while
narrow, can be threaded. The plaintiffs in Gustafson, Brock, Orsay, and Collins
all managed to do it. The sky did not fall, and the doors of the inferior federal
courts were not blown open to claims that otherwise belonged in the
CSRA/MSPB process. Therefore in our view, the dissenting opinion’s
rhetoric is misplaced.
VI.
As noted, the panel limited its decision to jurisdiction. See Feds for
Medical Freedom, 30 F.4th at 511. Finding that we have jurisdiction, we review
the district court’s decision regarding the other factors necessary for a
preliminary injunction for abuse of discretion. See NetChoice, L.L.C. v.
Paxton, 49 F.4th 439, 447 (5th Cir. 2022). “A preliminary injunction is an
extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (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. The district court carefully considered these factors and
wrote a thorough opinion explaining its decision to grant preliminary relief.
After carefully considering the district court’s opinion and the
8
For example, the district judge in this case rejected a previous challenge to this
same mandate as unripe. See Rodden v. Fauci, 571 F. Supp. 3d 686, 689 (S.D. Tex. 2021).
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Government’s criticisms of it, we are unpersuaded that the district court
abused its discretion. And we need not repeat the district court’s reasoning,
with which we substantially agree.
The one issue that warrants additional discussion is the scope of
injunctive relief. The Supreme Court has recently stayed nationwide
injunctions. See, e.g., DHS v. New York, 140 S. Ct. 599 (2020) (mem.). But
the Court has yet to tell us they’re verboten. Some Justices have expressed
concerns that such injunctions can contravene equitable principles because
“[e]quitable remedies, like remedies in general, are meant to redress the
injuries sustained by a particular plaintiff in a particular lawsuit.” New York,
140 S. Ct. at 600 (Gorsuch, J., concurring); see also Trump v. Hawaii, 138 S.
Ct. 2392, 2426 (2018) (Thomas, J., concurring) (“Universal injunctions do
not seem to comply with those [equitable] principles.”). For example, the
English system of equity did not authorize injunctions against the King. See
Trump, 138 S. Ct. at 2427 (Thomas, J., concurring). And “as a general rule,
American courts of equity did not provide relief beyond the parties to the
case.” Ibid. As with all general rules, of course, this one was subject to
exceptions—the most important of which was that an injunction could benefit
non-parties as long as “that benefit was merely incidental.” Ibid.It appears that the district court did its best to follow these equitable
principles in this case. The court carefully carved the President out of its
injunction, which is an obviously imperfect analogue to the English king but
an equally obvious good-faith recognition of the rule. It also recognized that,
unlike the plaintiffs in both New York and Hawaii, the lead plaintiff in this
case has over 6,000 members spread across every State in the Nation and
nearly every federal agency in the entire Government. ROA.1770. And
plaintiffs cited multiple instances in the aftermath of Executive Order 14043
where the Government wrongfully targeted unvaccinated federal employees
who sought exemptions—despite assurances from the Government that it
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would not do so. ROA.1454, 1464, 1600, 1625, 1645. The court therefore
expressed its “fears that limiting the relief to only those before it would prove
unwieldy and would only cause more confusion.” ROA.1770. On this record
and absent binding precedent from the Supreme Court, we cannot say that
the district court abused its discretion in rejecting the Government’s
assurances that it could and would comply with an injunction limited to the
plaintiffs’ members.
The Government’s position on the scope of the injunction also sits
awkwardly with its position on the merits. On the merits, the Government
wants “consistency across government in enforcement of this government-
wide vaccine policy.” ROA.810. But on the scope of the injunction, the
Government wants piecemeal enforcement, where thousands of plaintiffs’
members across the Nation are subject to the district court’s injunction,
others are given exemptions from vaccination, and only the remainder are
subject to the President’s mandate. That undermines rather than supports
the Government’s purported interest in “consistency across government in
enforcement of this government-wide vaccine policy.” ROA.810.
Finally, a word about concerns expressed by Judge Haynes and
Judge Stewart regarding a purported conflict between this injunction
and the decisions of other courts across the country. They worry that the
district court’s injunction awards relief to parties who have already lost their
claims elsewhere. But our esteemed colleagues reference no cases where
plaintiffs have lost their claims on the merits. They first cite Rydie v. Biden,
No. 21-2359, 2022 WL 1153249 (4th Cir. Apr. 19, 2022) (unpublished).
There, our sister circuit vacated a district court judgment denying a
preliminary injunction of Executive Order 14043 but only because the court
concluded that the CSRA stripped the district court of jurisdiction. See id. at
*1. The panel dismissed the case under Fed. R. Civ. P. 12(b)(1) without
prejudice and without reaching the merits. See id. at *8 (“We therefore
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vacate the district court’s judgment and remand the case with instructions
that it be dismissed without prejudice for lack of subject-matter
jurisdiction.”). The D.C. Circuit took the same route in Payne v. Biden, ---
F.4th ----, 2023 WL 2576742 (D.C. Cir. 2023). See id. at *7 (dismissing for
lack of subject matter jurisdiction without reaching the merits). In all the
other cases Judge Stewart cites, the districts courts dismissed the claims
without prejudice on the grounds that the CSRA stripped jurisdiction. See
Am. Fed’n of Gov’t Emps. Loc. 2018 v. Biden, 598 F. Supp. 3d 241, 248–49
(E.D. Pa. 2022); Payne v. Biden, 602 F. Supp. 3d 147, 151 (D.D.C. 2022); Am.
Fed’n of Gov’t Emps. Loc. 2586 v. Biden, No. CIV-21-1130-SLP, 2022 WL
3695297, at *6 (W.D. Okla. July 22, 2022). The overwhelming majority of
district courts that have dismissed these challenges have also done so for lack
of jurisdiction under Fed. R. Civ. P. 12(b)(1). See, e.g., Calderwood v.
United States, No. 2:21-CV-702-CLM, 2022 WL 4353382 (N.D. Ala. Aug.
25, 2022); Church v. Biden, No. 21-2815 (CKK), 2022 WL 1491100 (D.D.C.
May 11, 2022); Am. Fed’n of Gov’t Emps. Loc. 501 v. Biden, 576 F. Supp. 3d
1155 (S.D. Fla. 2021); McCray v. Biden, 574 F. Supp. 3d 1 (D.D.C. 2021);
Brass v. Biden, No. 21-CV-02778-CNS-MEH, 2022 WL 11732833 (D. Colo.
Oct. 20, 2022). Thirteen members of this court, including Judge Haynes,
agree that we have jurisdiction and must reach the merits of the preliminary
injunction. Accordingly, any perceived conflict is misconstrued, and any
benefit to outside parties is “merely incidental.” See Trump, 138 S. Ct. at
2427 (Thomas, J., concurring).
We hasten to emphasize that this case only involves a preliminary
injunction. The preliminary injunction’s purpose is to maintain the status
quo until the parties have the chance to adjudicate the merits. See Benisek v.
Lamone, 138 S. Ct. 1942, 1945 (2018) (“[T]he purpose of a preliminary
injunction is merely to preserve the relative positions of the parties until a
trial on the merits can be held . . . .” (quotation omitted)); Texas v. United
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States, 809 F.3d 134, 187 n.205 (5th Cir. 2015), affirmed by an equally divided
Court, 579 U.S. 547 (2016) (per curiam) (similar). When the parties proceed
to the merits in the district court, the plaintiffs will have to prove that
whatever injunction they request is broad enough to protect against their
proven injuries and no broader. And the Government will have another
chance to show that any permanent injunction should be narrower than the
preliminary one. And both sides will have to grapple with the White House’s
announcement that the COVID emergency will finally end on May 11, 2023.
See Exec. Off. of the President, Statement of Administration Policy Re: H.R.
382 & H.J. Res. 7 (Jan. 30, 2023).
AFFIRMED.
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James C. Ho, Circuit Judge, joined by Jones, Circuit Judge, concurring:
Our court today holds that we have jurisdiction to hear this challenge
to the President’s vaccine mandate for federal employees. Moreover, by
affirming the preliminary injunction, we also hold that coercing an employee
to comply with a vaccine mandate as a condition of continued employment
constitutes irreparable injury. 1 I concur.
Judge Higginson agrees that we have jurisdiction. But he concludes
that we should deny relief on the merits and therefore reverse. He notes that
“the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take
Care that the Laws be faithfully executed.’” Post, at 77 (Higginson, J.,
concurring in part and dissenting in part) (quoting Seila Law LLC v.
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (quoting U.S.
Const. art. II, § 1, cl. 1; id. at § 3)). He concludes that the President
possesses the constitutional authority to order federal employees to comply
with his vaccine mandate, if they wish to avoid removal from office.
I certainly agree that “[t]he entire ‘executive Power’ belongs to the
President alone.” Seila Law, 140 S. Ct. at 2197. Contrast U.S. Const. art.
I, § 1 (vesting the legislative power in a bicameral Congress); id. art. III, § 1
(vesting the judicial power in “one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish”). To be
sure, “it would be impossible for one man to perform all the great business of
the State.” Seila Law, 140 S. Ct. at 2197 (quotations omitted). So “the
1
Cf. NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (“A vaccination . . . cannot be
undone at the end of the workday.”) (quotations omitted); Louisiana v. Biden, 55 F.4th
1017, 1022 (5th Cir. 2022) (noting that “employees would have to undertake an irreversible
decision—vaccination—in order to be compliant with this mandate”); see also Sambrano v.
United Airlines, Inc., 45 F.4th 877, 878–79 (5th Cir. 2022) (Ho, J., concurring in denial of
rehearing en banc) (same).
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Constitution assumes that lesser executive officers will assist the supreme
Magistrate in discharging the duties of his trust.” Id. (quotations omitted).
But “[t]hese lesser executive officers must remain accountable to the
President, whose authority they wield.” Id.All of this means that the President should possess the constitutional
authority under Article II to remove his subordinates from office. See, e.g.,
Myers v. United States, 272 U.S. 52, 122, (1926) (“[W]hen the grant of the
executive power is enforced by the express mandate to take care that the laws
be faithfully executed, it emphasizes the necessity for including within the
executive power as conferred the exclusive power of removal.”); Free Enter.
Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 498 (2010) (insulating
subordinates from removal “subverts the President’s ability to ensure that
the laws are faithfully executed—as well as the public’s ability to pass
judgment on his efforts”); Seila Law, 140 S. Ct. at 2203–04 (observing that
“the threat of removal” allows the President to “meaningfully control[]”
subordinates, and that “removal at will” is “the most direct method of
presidential control”); Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021) (“The
President must be able to remove not just officers who disobey his commands
but also those he finds negligent and inefficient, those who exercise their
discretion in a way that is not intelligent or wise, those who have different
views of policy, those who come from a competing political party who is dead
set against [the President’s] agenda, and those in whom he has simply lost
confidence.”) (cleaned up). 2
2
But see Collins v. Mnuchin, 938 F.3d 553, 614 (5th Cir. 2019) (en banc) (Higginson,
J., dissenting in part) (“The Constitution affords sparse materials to resolve this
question—only broad pronouncements that ‘[t]he executive Power shall be vested’ in the
President and that ‘he shall take Care that the Laws be faithfully executed.’ Art. II §§ 1, 3.
These clauses say nothing about removal of executive-branch officers.”).
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In reality, however, the President actually controls surprisingly little
of the Executive Branch. Only a tiny percentage of Executive Branch
employees are subject to Presidential removal. The overwhelming majority
of federal employees, by contrast, are protected against Presidential removal
by civil service laws. Compare Off. of Mgmt. & Budget, Exec. Off.
of the President, Budget of the United States
Government, Fiscal Year 2023, at 83 (2022) (4.2 million Executive
Branch employees), with House Committee on Oversight and
Reform, United States Government Policy and
Supporting Positions 209–15 (2020) (commonly known as the “Plum
Book”) (fewer than four thousand Executive Branch employees are subject
to removal at will by the President).
The net result is that there are only a “small number of politically
appointed leaders” who “enjoy only limited control of the mass of civil
servants.” Eric Posner, And if Elected: What President Trump Could or
Couldn’t Do, N.Y. Times, June 3, 2016. Federal civil service laws make it
virtually impossible for a President to implement his vision without the active
consent and cooperation of an army of unaccountable federal employees.
And that presents a rather curious distortion of our constitutional structure.
The Constitution requires the President, the Vice President, and every
member of Congress to stand for re-election if they wish to continue holding
federal office and exercising federal power. Meanwhile, countless Executive
Branch employees have the ability to influence or implement federal policy
in their capacity as subordinates of the President—yet they enjoy a de facto
form of life tenure, akin to that of Article III judges. See U.S. Const. art.
III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behaviour”).
It’s a phenomenon that legal scholars have identified (and decried) for
decades. “The critical fact of civil service today is that covered employees
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are rarely discharged from government for inadequately doing their jobs. The
civil service system has provided the equivalent of life tenure (at least until
retirement) once a brief probation period is passed, absent what the
government considers a serious act of misconduct.” Gerald E. Frug, Does the
Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L.
Rev. 942, 945 (1976). See also Philip K. Howard, Not
Accountable: Rethinking The Constitutionality Of
Public Employee Unions 136 (2023) (“Federal government . . . is an
accountability-free zone. More federal employees die on the job than are
terminated for poor performance. Regular stories emerge of employees who
cannot be terminated despite outrageous behavior.”).
Not surprisingly, these “tenure-like protections for the civil service
have sharply reduced the president’s ability to change the direction of the
permanent bureaucracy.” John Yoo, Unitary, Executive, or Both?, 76 U.
Chi. L. Rev. 1935, 1956 (2009).
What’s more, federal employees know it—and they take full-throated
advantage of it. As anyone who has ever held a senior position in the
Executive Branch can attest, federal employees often regard themselves, not
as subordinates duty-bound to carry out the President’s vision whether they
personally agree with it or not, but as a free-standing interest group entitled
to make demands on their superiors. See, e.g., Philip K. Howard, Civil Service
Reform: Reassert the President’s Constitutional Authority, The American
Interest, Jan. 28, 2017 (“The slow dissipation of presidential power is a
story rich with irony—designed to avoid interest group capture, the civil
service became its own special interest.”).
As a result, “Presidents can have a hard time implementing their
agenda if civil servants collectively drag their feet or lack the competence to
carry out the President’s orders.” Jason Marisam, The President’s Agency
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Selection Powers, 65 Admin. L. Rev. 821, 863 (2013). “Even if a president
has the perfect ally running an agency, that ally may still fail to produce the
desired results if the ally runs into resistance from his civil servants.” Id.Indeed, one scholar has pointedly noted that the single “biggest
obstacle” for any President “is not the separation of powers” designed by
our Founders, “but the millions of federal employees who are supposed to
work for him.” Posner, supra (emphasis added). “These employees can drag
their feet, leak to the press, threaten to resign and employ other tactics to
undermine [a President’s] initiatives if they object to them.” Id. “They’re
also hard to fire, thanks to Civil Service protections.” Id. See, e.g., Marisam,
supra, at 863–64 (“For example, the efforts of President Reagan’s EPA
Administrator, Ann Gorsuch, to slow down and halt EPA regulatory actions
was marked by staff resistance to the Administration’s attempt to change the
agency’s goals.”) (cleaned up).
In an appropriate case, we should consider whether laws that limit the
President’s power to remove Executive Branch employees are consistent
with the vesting of executive power exclusively in the President. See, e.g.,
Howard, Not Accountable, supra, at 140 (“[T]he president and
federal supervisory officials must have authority to manage personnel . . . .
This requires, among other remedies, invalidating specific provisions of the
Civil Service Reform Act of 1978 that . . . disempower the president and his
appointees from removing officers.”); Yoo, supra, at 1957 (“[P]residents
consistently followed a common position toward the civil service that sought
to maintain the right to fire federal employees in order to guarantee a uniform
execution of federal law.”); Christopher S. Yoo, Steven G. Calabresi, and
Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945–2004,
90 Iowa L. Rev. 601, 660 (2005) (“[T]he idea that the civil service laws
limit the president’s power to remove is of fairly recent vintage dating back
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only to 1974.”); Frug, supra, at 949 (noting that “the President’s absolute
power of removal of federal employees was established in principle” in 1789).
This is not that case, however. That’s because the Government
doesn’t challenge the validity of the CSRA or invoke the President’s Article
II removal power in this case. It doesn’t do so in its briefing. And it
reconfirmed during oral argument that it doesn’t challenge the
constitutionality of the CSRA here. During oral argument, I asked whether
the President has the power under the Constitution to remove any Executive
Branch employee, notwithstanding laws like the CSRA. Counsel for the
Government responded: “Plaintiffs say periodically we haven’t challenged
the constitutionality of the CSRA. That’s absolutely right—we have not.”
Oral Arg. at 5:40-6:23.
The argument is thus forfeited. We therefore have no occasion to
decide whether this case implicates the President’s constitutional power to
remove employees who are unwilling to faithfully execute his policy vision
for our country—or if, instead, the President is impermissibly leveraging
(and therefore exceeding) his removal power in order to meddle in the private
lives of federal employees. See post, at 52 (Higginson, J., concurring in part
and dissenting in part) (noting that the President’s vaccine mandate
“requires federal employees to ‘protect themselves’ against COVID-19 by
getting FDA-approved vaccinations”); cf. Louisiana v. Biden, 55 F.4th 1017,
1030 (5th Cir. 2022) (“unlike the non-discrimination, E-Verify, Beck rights,
and sick leave orders, which govern the conduct of employers, the [President’s
federal contractor] vaccine mandate purports to govern the conduct of
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employees – and more than their conduct, purports to govern their individual
healthcare decisions”). 3
3
See also Horvath v. City of Leander, 946 F.3d 787, 799 (5th Cir. 2020) (Ho, J.,
concurring in the judgment and dissenting in part) (observing that a municipal vaccine
mandate “forces [an employee] to choose between sacrificing his faith or working under
unequal conditions”); BST Holdings, L.L.C. v. Occupational Safety & Health Admin., 17
F.4th 604, 618–19 (5th Cir. 2021) (OSHA vaccine mandate implicates “the liberty of
individuals to make intensely personal decisions according to their own convictions”);
Sambrano v. United Airlines, Inc., 19 F.4th 839, 841 (5th Cir. 2021) (Ho, J., dissenting)
(“Vaccine mandates . . . present a crisis of conscience for many people of faith. It forces
them to choose between the two most profound obligations they will ever assume—holding
true to their religious commitments and feeding and housing their children.”); Sambrano
v. United Airlines, Inc., 2022 WL 486610, *9 (5th Cir. Feb. 17, 2022) (“United has
presented plaintiffs with two options: violate their religious convictions or lose all pay and
benefits indefinitely. That is an impossible choice for plaintiffs who want to remain faithful
but must put food on the table.”).
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Haynes, Circuit Judge, concurring in the judgment in part and dissenting
in part:
I. Concurrence
I concur in the en banc court’s judgment that we have jurisdiction over
pre-enforcement challenges to President Biden’s vaccine mandate for federal
employees. I also concur in the affirmance of the preliminary injunction as
to the parties in this case, but I respectfully dissent from the affirmance of the
grant of a nationwide injunction.
II. Dissent 1
The district court noted that it was “cognizant of the ‘equitable and
constitutional questions raised by the rise of nationwide injunctions.’” Feds
for Medical Freedom v. Biden, 581 F. Supp. 3d 826, 836 (S.D. Tex. 2022)
(quoting Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 601 (2020)
(Gorsuch, J., concurring)). Nevertheless, the district court concluded that
tailoring relief here was impractical. 581 F. Supp. 3d at 836. According to
the district court, the fact that the lead Plaintiff—Feds for Medical
Freedom—has more than 6000 members spread across every state and in
nearly every federal agency means that limiting the injunction’s scope would
“prove unwieldy and would only cause more confusion.” Id. (quotation
omitted).
However, a federal court’s “constitutionally prescribed role is to
vindicate the individual rights of the people appearing before it,” and
accordingly “[a] plaintiff’s remedy must be tailored to redress the plaintiff’s
particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1933–34 (2018)
(emphasis added); see also Dep’t of Homeland Sec., 140 S. Ct. at 600 (Gorsuch,
1
Judges Higginson and Willett join in Section II.
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J., concurring) (“[W]hen a court . . . order[s] the government to take (or not
take) some action with respect to those who are strangers to the suit, it is hard
to see how the court could still be acting in the judicial role of resolving cases
and controversies.”); Georgia v. President of the United States, 46 F.4th 1283,
1303 (11th Cir. 2022) (“In their universal reach to plaintiffs and nonplaintiffs
alike, nationwide injunctions push against the boundaries of judicial power,
and very often impede the proper functioning of our federal court system.”).
This seems especially true where, as here, several district courts (and two
circuit courts) across the country have come out differently from this district
court on these issues. 2 For instance, the Government noted that it has
successfully defended the executive order in the Fourth Circuit 3 and is
currently defending the dismissal of similar challenges in the Third and D.C.
Circuits,4 “[b]ut those cases are rendered essentially meaningless by this
nationwide injunction.” 5
2
At least twelve district courts previously rejected challenges to Executive Order
14043 for various reasons. See Feds for Med. Freedom, 30 F.4th at 505 n.1 (collecting cases).
3
The Fourth Circuit, like the panel opinion in this case, determined that the CSRA
deprived the district court of jurisdiction. Accordingly, it vacated the district court’s
judgment denying relief to the plaintiffs on the merits and dismissed the suit for lack of
jurisdiction. Rydie v. Biden, No. 21-2359, 2022 WL 1153249, at *8 (4th Cir. Apr. 19, 2022).
4
The Government subsequently noted that the D.C. Circuit ruled in its favor. See
Payne v. Biden, --- F.4th ----, 2023 WL 2576742 (D.C. Cir. 2023).
5
The majority opinion misunderstands my point here: we should generally only
address the parties’ request for a preliminary injunction, particularly in this circumstance,
where other litigants are raising the same issues in other circuits. In other words, I am less
concerned with whether we are creating circuit splits than whether we are appropriately
limiting the scope of our decisions to the parties before us. The reasoning other circuits
use to resolve these issues is therefore not my point. That said, the majority is plainly
incorrect that its opinion doesn’t truly conflict with other courts’ decisions. The other
circuits’ jurisdictional rulings are far from “merely incidental”—they are wholly fatal to
the plaintiffs’ claims. Therefore, a nationwide ruling which the majority opinion seems to
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Nor is tailored injunctive relief unworkable here. The district court
could direct Feds for Medical Freedom to submit the names of its members
to the Government and employing agencies in order to provide them relief.
If it has not already done so, Feds for Medical Freedom also could provide
either online proof of membership or physical cards to that effect that the
unvaccinated individual member employees could utilize as proof to avoid
any adverse employment actions. Additionally, as the Government notes,
“[a]s for the court’s view that tailored relief would be unworkable because
[Feds for Medical Freedom] ‘is actively adding new member[s],’ it is far from
clear that [Feds for Medical Freedom] has standing to litigate on behalf” of
potential or future members. 6 In contrast, the plaintiffs wholly failed to meet
their burden to show that tailoring was not workable. See, e.g., Ashcroft v.
ACLU, 542 U.S. 656, 666 (2004) (on appeal from grant of preliminary
injunction, the party who “bears the burden of proof on the ultimate
question” bears the same burden on appeal); Enter. Int’l, Inc. v. Corporacion
Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1982) (“[T]he
district court must remember that a preliminary injunction is an
extraordinary and drastic remedy, and that the movant has a heavy burden of
persuading the district court that all four elements are satisfied. Thus, if
the movant does not succeed in carrying its burden on any one of the four
prerequisites, a preliminary injunction may not issue and, if issued, will be
find overrules the other circuits is also problematic because we have no greater jurisdiction
to grant relief (or make decisions about federal court jurisdiction) than the other circuits.
6
The majority opinion’s last substantive paragraph notes that this case “only
involves a preliminary injunction” which has the “purpose to maintain the status quo until
the parties have the chance to adjudicate the merits.” Ante, at 37 (emphasis added).
Exactly—we should not address the interests of non-parties where, as here, it is certainly
feasible to tailor the injunctive relief to the plaintiffs.
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vacated on appeal.” (internal quotation marks, alteration, and citation
omitted) (emphasis added)).
III. Conclusion
Accordingly, the district court erred in issuing a nationwide injunction
when a tailored injunction is not unworkable or impossible to apply.
Therefore, I dissent from the court’s decision to leave the nationwide
injunction in place rather than reversing the portion of the injunction that
extends beyond the plaintiffs.
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Stephen A. Higginson, Circuit Judge, joined by Southwick, Circuit
Judge, concurring in part and dissenting in part:
This case begins with the question of whether we have jurisdiction to
review the President’s vaccine requirement for Executive Branch employees.
If the answer is yes, we also must decide whether the President’s order
exceeded his authority to require his employees to get an FDA-approved
vaccination during a pandemic that has killed over a million Americans.
For the wrong reasons, our court correctly concludes that we do have
jurisdiction. But contrary to a dozen federal courts—and having left a
government motion to stay the district court’s injunction pending for more
than a year—our court still refuses to say why the President does not have
the power to regulate workplace safety for his employees.
***
The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq.,
generally precludes subject-matter jurisdiction over pre-enforcement
challenges to Executive Branch employment policies. For that reason, I
cannot agree with our court’s blueprint for covered employees to short
circuit the CSRA by filing a federal lawsuit against workplace regulations
before they are disciplined. Now, litigants can forum shop challenges to
federal employment policies in our court, even though Congress directed
their cases to the Federal Circuit. However, because I conclude the CSRA
does not provide meaningful judicial review of the plaintiffs’ pre-
enforcement challenge and Congress did not intend the CSRA to foreclose
judicial review of their separation-of-powers claim, I concur that we have
jurisdiction over this claim.
On the merits, our court is wrong that the plaintiffs are entitled to a
preliminary injunction, let alone one that sweeps nationwide. The vaccine
requirement fell within the President’s power to regulate his employees. Nor
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have the plaintiffs shown that they are likely to suffer an irreparable injury
from the requirement in the absence of injunctive relief. Without identifying
any reason that the requirement exceeded Presidential authority or any
irreparable injury that the plaintiffs will suffer, our court concludes that such
an injunction, which overruled all other federal courts that left the mandate
untouched, is justified.
Setting aside the substance of what our court says on the merits, I
disagree with how we say it. Today, our court affirms a nationwide injunction,
put in place over a year ago, without explanation or analysis of any of the
preliminary injunction factors. This method of rubberstamping a district
court’s nullification of the President’s authority over the Executive Branch
is unprecedented and improper on en banc rehearing. The People’s trust in
our independence is undermined when we answer vital constitutional
questions without showing our work—especially when the questions before
us “are inescapably entangled in political controversies” and “touch the
passions of the day.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S.
123, 149 (1951) (Frankfurter, J., concurring).
I.
By September 2021, more than 600,000 Americans had died from
COVID-19. Covid Data Tracker Weekly Review: Easy as 1-2-3, Ctrs. for
Disease Control & Prevention (Interpretive Summary for Aug. 27,
2021). Millions were missing work each week. Educational Attainment for
Adults Not Working at Time of Survey, by Main Reason for Not Working and
Source Used to Meet Spending Needs, Weekly 37 Household Pulse Survey: Sept. 1
– Sept. 13, U.S. Census Bureau (Sept. 21, 2021).
To combat those threats to “the health and safety of the [f]ederal
workforce and the efficiency of the civil service,” on September 9, 2021, the
President issued Executive Order 14043. Exec. Order No. 14043, 86 Fed.
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Reg. 50,989, 50,989 (Sept. 9, 2021). This order requires federal employees
to “protect themselves” against COVID-19 by getting FDA-approved
vaccinations. Id. Specifically, the President directed executive agencies to
implement “a program to require COVID-19 vaccination for all of its
[f]ederal employees, with exceptions only as required by law.” Id. at 50,990.
Pursuant to the Executive Order, the Safer Federal Workforce Task
Force issued guidance stating that covered employees would “need to be
fully vaccinated by November 22, 2021.” Vaccinations, Safer Fed.
Workforce, https://perma.cc/G8T6-K8XN. The guidance said that
agencies “may be required to provide a reasonable accommodation to
employees” who did not get vaccinated “because of a disability” or “a
sincerely held religious belief, practice, or observance.” Id.
The guidance also explained how agencies could enforce the vaccine
requirement. Agencies should first provide “an appropriate period of
education or counseling” to employees who initially fail to comply with the
requirement. Id. Afterwards, if an employee still does not get vaccinated, an
agency could “issue a letter of reprimand, followed by a short suspension,”
which would “generally” last “14 days or less.” Id. The agency could
propose that the employee be removed if the employee does not comply with
the requirement during the suspension. Id. The guidance further noted that
“[e]mployees who violate lawful orders,” like the requirement, “are subject
to discipline, . . . including termination or removal.” Id.
In December 2021, Feds for Medical Freedom, individual federal
employees, and other plaintiffs challenged Executive Order 14043 in federal
district court. They alleged that the Executive Order is ultra vires because it
exceeded the President’s constitutional and statutory authority, and they
challenged the Executive Order as arbitrary and capricious under the
Administrative Procedure Act (APA), 5 U.S.C. § 706. The plaintiffs moved
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for a preliminary injunction, which the district court granted. See Feds for
Med. Freedom v. Biden, 581 F. Supp. 3d 826, 836-37 (S.D. Tex. 2022), vacated,
30 F.4th 503 (5th Cir. 2022), reh’g granted, 37 F.4th 1093. In granting the
injunction, the district court split from a dozen other district courts who had
already rejected similar challenges. 1 See Feds for Med. Freedom, 30 F.4th at
505 n.1 (collecting cases).
The government appealed and moved for a stay pending appeal. A
divided panel carried the motion with the case, see Feds for Med. Freedom v.
Biden, 25 F.4th 354 (5th Cir. 2022) (per curiam), and a divided panel then
vacated the injunction on the basis that the CSRA precluded the district
court’s exercise of jurisdiction, see Feds for Med. Freedom v. Biden, 30 F.4th
503, 511 (5th Cir. 2022). Our court granted rehearing en banc. Feds for Med.
Freedom v. Biden, 37 F.4th 1093 (5th Cir. 2022) (per curiam).
II.
Congress’s constitutional power to establish inferior federal courts
includes the power to define their jurisdiction. See U.S. Const. art III, § 1;
Lockerty v. Phillips, 319 U.S. 182, 187 (1943). Pursuant to this power,
Congress can preclude district courts from exercising jurisdiction by
requiring certain claims “to proceed exclusively through a statutory review
scheme.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 10 (2012).
In determining whether a statute precludes district court jurisdiction,
we consider whether Congress’s intent to do so is “fairly discernible in the
1
The district court’s decision also conflicts with the Fourth Circuit’s and D.C.
Circuit’s conclusion that Congress precluded jurisdiction over a similar challenge to the
vaccine requirement. See Payne v. Biden, --- F.4th ----, 2023 WL 2576742 (D.C. Cir. 2023);
Rydie v. Biden, No. 21-2359, 2022 WL 1153249 (4th Cir. Apr. 19, 2022). Another appeal is
pending before the Third Circuit. See Smith v. Biden, No. 21-CV-19457, 2021 WL 5195688(D.N.J. Nov. 8, 2021), appeal docketed, No. 21-3091 (3d Cir. Nov. 10, 2021).
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statutory scheme.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207
(1994). If so, we decide whether the plaintiffs’ claims “are of the type
Congress intended to be reviewed within this statutory structure.” Id. at 212.
Three factors are relevant to this inquiry: whether (1) “a finding of preclusion
could foreclose all meaningful judicial review,” (2) the claims are “wholly
collateral to a statute’s review provisions,” and (3) the claims are “outside
the agency’s expertise.” Id. at 212-13 (cleaned up).
Applying this Supreme Court test, the CSRA generally precludes
district court jurisdiction over pre-enforcement challenges to Executive
Branch employment policies. But, as I explain below, the plaintiffs’
separation-of-powers claim is the rare type of pre-enforcement challenge that
Congress did not intend to preclude in the CSRA. Therefore, I agree
narrowly in outcome with the majority that we have jurisdiction over
plaintiffs’ pre-enforcement challenge to the Executive Order as ultra vires. 2
But the majority takes two significant wrong turns in reaching its
jurisdictional conclusion, which rejects Supreme Court precedent and
imperils Congress’s CSRA regime. First, the majority is incorrect that
plaintiffs are not challenging a “personnel action” within the meaning of the
CSRA. In addition, the majority is mistaken that Congress did not intend the
CSRA to preclude jurisdiction over pre-enforcement challenges to personnel
actions covered by the statute. This second error of our court is grave and
lets any covered employee facing proposed discipline rush to federal court
ahead of the statutory timeline contrary to Supreme Court precedent and the
text of the CSRA.
2
With the benefit of en banc argument, I have reconsidered my initial view that the
district court likely lacked jurisdiction over the entire case. Feds for Med. Freedom v. Biden,
25 F.4th 354, 356 (5th Cir. 2022) (Higginson, J., dissenting), though I continue to believe
that jurisdiction over plaintiffs’ APA claim is precluded.
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A.
The CSRA imposed a “comprehensive and integrated review
scheme” for “personnel action taken against federal employees.” United
States v. Fausto, 484 U.S. 439, 454, 455 (1988). This system replaced a set of
“haphazard” and “patchwork” “arrangements for administrative and
judicial review of personnel action,” which had resulted in a “wide
variation[] in [district court] decisions issued on the same or similar
matters.” Id. at 444-45 (cleaned up). Among other reforms, the CSRA
created the Merit Systems Protection Board (MSPB), “a quasi-judicial
agency with the power to adjudicate disputes arising from adverse personnel
actions taken against covered federal employees.” Zummer v. Sallet, 37 F.4th
996, 1003 (5th Cir. 2022), cert. denied, --- S. Ct. ----, 2023 WL 2563318 (2023).
Under the CSRA’s “elaborate new framework,” challenges to
“minor adverse action[s],” “major adverse action[s],” and “prohibited
personnel practices” are channeled into separate procedural tracks. Fausto,
484 U.S. at 443, 445-47 (cleaned up); see 5 U.S.C. §§ 1212, 1214, 2301, 2302,
7502, 7503, 7512, 7513; see also 5 U.S.C. § 4303 (review of actions based on
unacceptable performance).
Minor adverse actions, meaning suspensions lasting fourteen days or
less, are not appealable to the MSPB. See 5 U.S.C. § 7503; Fausto, 484 U.S.
at 446. Instead, an employee against whom such a suspension is proposed is
entitled to certain procedural protections, including notice, an opportunity
to respond, representation by an attorney, and a written decision. 5 U.S.C.
§ 7503(b)(1)-(4).
Major adverse actions, including removal and suspension for more
than fourteen days, id. § 7512(1)-(5); Fausto, 484 U.S. at 446-47, trigger a
similar set of safeguards. When such an action is proposed against an
employee, he or she is generally entitled to “at least [thirty] days’ advance
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written notice,” “a reasonable time . . . not less than [seven] days . . . to
answer,” representation by an attorney, and a written decision. 5 U.S.C.
§ 7513(b)(1)-(4).
Unlike minor adverse actions, major adverse actions can be reviewed
in federal court. But this channel is narrowly prescribed. An employee
“against whom [a major adverse] action is taken . . . is entitled to appeal to
the [MSPB],” id. § 7513(d), and the United States Court of Appeals for the
Federal Circuit has jurisdiction over appeals from the MSPB’s final orders
and decisions. See id. § 7703(a)(1), (b)(1)(A).
Finally, the CSRA includes a mechanism for employees to challenge
a “personnel action” that is a “prohibited personnel practice.” Id.
§ 2302(a)(1), (a)(2), (b). The statute lists eleven types of personnel actions
and includes a residual clause that covers “any other significant change in
duties, responsibilities, or working conditions.” Id. § 2302(a)(2)(A)(xii). An
employee may challenge a prohibited personnel practice by making an
allegation to the Office of Special Counsel (OSC). Id. § 1214(a)(1)(A), (a)(3);
see id. § 1212(a)(2). OSC must investigate the allegation, id. § 1214(a)(1)(A),
and may petition the MSPB for corrective action, id. § 1214(b)(2)(C). The
Federal Circuit can review a final order of the MSPB in response to such a
petition. Id. §§ 1214(c), 7703(b)-(c). Therefore, where prohibited personnel
practices are concerned, access to the MSPB and the Federal Circuit depends
on OSC’s discretion with limited exceptions. See id. § 1214(a)(3) (exceptions
for cases where (i) other law provides a right of direct appeal to the MSPB or
(ii) OSC declines to seek corrective action after terminating an investigation
into retaliation as described in § 2302(b)(8) and § 2302(b)(9)(A)(i), (B), (C),
and (D)).
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B.
The Supreme Court has held that the CSRA “forecloses judicial
review” for employees “to whom the CSRA grants administrative and
judicial review” as well as for those employees “to whom the CSRA denies
statutory review.” Elgin, 567 U.S. at 11.
Specifically, in Elgin v. Department of Treasury, the Court, in an
opinion written by Justice Thomas, decided that the CSRA precluded
jurisdiction over employees’ constitutional claims challenging their removal
from federal employment. 567 U.S. 1, 8 (2012). And in United States v.
Fausto, the Court, in an opinion written by Justice Scalia, decided that the
exclusion of certain employees from the CSRA review scheme for major
adverse actions precluded jurisdiction over those employees’ challenges to
those actions. 484 U.S. 439, 455 (1988).
These precedents control here.
1.
To begin, because the vaccine requirement is a “significant change in
[an employee’s] . . . working conditions,” 5 U.S.C. § 2302(a)(2)(A)(xii), the
CSRA gives plaintiffs a mechanism for “administrative and judicial review,”
Elgin, 567 U.S. at 11.
“Working conditions” are the circumstances under which an
employee performs his or her job. 3 The vaccine requirement changes those
3
See Fort Stewart Schs. v. Fed. Lab. Relations Auth., 495 U.S. 641, 645 (1990)
(explaining, with reference to different CSRA provision, that “working conditions . . .
refers, in isolation, only to the ‘circumstances’ or ‘state of affairs’ attendant to one’s
performance of a job”); Hesse v. Dep’t of State, 217 F.3d 1372, 1378 (Fed. Cir. 2000)
(defining the phrase in § 2302 to mean “the physical conditions under which an employee
labors”); Mahoney v. Donovan, 721 F.3d 633, 636 (D.C. Cir. 2013) (defining the phrase in
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circumstances. Employees covered by the requirement have to get
vaccinated before going to work and work only with other vaccinated or
exempted employees. Being vaccinated against a pandemic disease and being
surrounded by vaccinated people are circumstances under which an
employee does his job according to any test: vaccination is a physical
condition of labor because it affects the employee’s body during work, Hesse,
217 F.3d at 1378; vaccination manifestly impacts absenteeism and “the
efficiency of the civil service,” Exec. Order No. 14043, 86 Fed. Reg. at
50,990; see Mahoney, 721 F.3d at 636, by reducing the incidence and severity
of disease; and vaccination is a “daily, concrete parameter[]” of federal
employment because it concerns “the provision of necessary . . .
resources”—shots that ensure employees can stay healthy and do their jobs,
Turner, 502 F. Supp. 3d at 367. 4 A vaccination requirement is therefore a
“working condition” within the meaning of § 2302(a)(2)(A)(xii).
§ 2302 as concerning actions that “affect the ability of [employees] to do their jobs
efficiently and effectively”); Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333,
367 (D.D.C. 2020) (defining the phrase in § 2302 as “generally refer[ring] to the daily,
concrete parameters of a job, for example, hours, discrete assignments, and the provision
of necessary equipment and resources”); see also Sistek v. Dep’t of Veterans Affs., 955 F.3d
948, 955 (Fed. Cir. 2020) (“[A] retaliatory investigation, either on its own or as part of a
broader set of circumstances, may . . . rise[] to the level of a significant change in working
conditions.” (cleaned up)).
4
Many Executive Branch employees do not have the luxury to decide for
themselves to put up plexiglass barriers, require attorneys to wear masks, and conduct
judicial proceedings by videoconference, as we can order at our discretion. See, e.g., Order,
General Dkt. No. 2020-5, United States Court of Appeals for the Fifth Circuit (authorizing
panels to conduct remote oral arguments). Indeed, some federal courts mandated
vaccinations for court employees and lawyers appearing for in-person oral argument. See
Order Regarding Masking, Vaccination, and COVID-19 Self-Certification, General Order
No. 21-009, United States Court of Appeals for the Seventh Circuit. State courts took
similar measures. See Keshia Clukey, Four Unvaccinated Judges in New York Face Sanctions,
Removal, Bloomberg Law (Mar. 23, 2022).
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Statutory context shows that vaccination is a working condition. The
CSRA lists twelve categories of “personnel action” in § 2302(a)(2)(A),
starting with nine conventional types of “individualized employment
decisions,” as the majority puts it. These include “appointment,”
“promotion,” “disciplinary or corrective action,” “detail, transfer, or
reassignment,” “reinstatement,” “restoration, “reemployment,”
“performance evaluation,” and “decision[s] concerning pay, benefits, or
awards, or concerning education or training.” 5 U.S.C. § 2302(a)(2)(A)(i)-
(ix). Notably, then, the list shifts. Romanette xi refers in relevant part to
“the implementation of any nondisclosure policy.” Id. § 2302(a)(2)(A)(xi)
(emphasis added). And romanette x concerns “a decision to order
psychiatric testing or examination”—a medical procedure that very well
could occur outside the workplace. Id. § 2302(a)(2)(A)(x). So, contrary to
the majority’s view, § 2302(a)(2)(A) does include workplace medical
policies that are “government-wide” and require “medical decisions made
outside the workplace.”
Indeed, Congress has amended § 2302(a)(2)(A) several times to
broaden its scope to include policies like a workplace vaccine requirement.
When first enacted, § 2302(a)(2)(A) consisted of romanettes i to ix (the nine
conventional employment decisions listed above) and a modified version of
what is now romanette xii: “any other significant change in duties or
responsibilities which is inconsistent with the employee’s salary or grade level.”
CSRA, Pub. L. No. 95-454, ch. 23, § 2302(a)(2)(A)(x), 92 Stat. 1111 (Oct. 13,
1978) (emphasis added). This language made a qualifying change in “duties
or responsibilities” dependent on an individual employee’s position. And
originally, psychiatric testing, nondisclosure policies, and significant changes
in working conditions were not covered personnel actions.
Then, in 1994, Congress added the “psychiatric testing or
examination” romanette and edited romanette xii. See Act of Oct. 29, 1994,
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Pub. L. No. 103-424, sec. 5, § 2302(a)(2)(A)(x), 108 Stat. 4361. Instead of
“any other significant change in duties or responsibilities which is inconsistent
with the employee’s salary or grade level,” the romanette was expanded to cover
“any other significant change in duties, responsibilities or working
conditions.” Id. § 2302(a)(2)(A)(x), 108 Stat. 4361 (emphasis added).
Finally, in 2012, Congress added the “nondisclosure policy” romanette. See
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199,
sec. 104, § 2302(a)(2)(A)(xi), 126 Stat. 1465.
In sum, the “working conditions” phrase (i) substituted for a
restrictive clause linking changes in “duties or responsibilities” to individual
employee status, (ii) was added immediately after a romanette dealing with
medical activities, and (iii) became the neighbor of a romanette about
nondisclosure policies. Together, these amendments show that Congress
understood the “working conditions” language to extend beyond the
traditional types of individual employment decisions § 2302(a)(2)(A) had
previously covered, to reach a workplace health policy like the vaccine
requirement. 5
5
The majority relies on Gustafson v. Adkins, a Seventh Circuit case holding that
placement of a hidden camera in a workplace changing area was not a “personnel action”
under § 2302(a)(2)(A). 803 F.3d 883, 889 (7th Cir. 2015). Gustafson based this decision
on dicta in Bush v. Lucas that “wiretapping” and “warrantless searches” would not be
personnel actions within the CSRA. 462 U.S. 367, 385 n.28 (1983). But Lucas was decided
almost a decade before Congress amended the CSRA to include the “working conditions”
phrase. And it is difficult to see how the hidden camera at issue in Gustafson did not
significantly change “working conditions” for the surveilled employees.
The majority’s reliance on NFIB v. OSHA is also misplaced. 142 S. Ct. 661 (2022).
That case held that the Occupational Safety and Health Administration lacked authority
under the Occupational Safety and Health Act (OSHA) to issue a vaccine requirement for
certain private employers because the statute empowered the agency “to set workplace
safety standards, not broad public health measures,” and Congress had not spoken clearly
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The majority reads § 2302(a)(2)(A)(xii) as excluding the vaccine
requirement because the requirement is “government-wide, involves
“medical decisions made outside the workplace,” and has “consequences
long after the employee leaves the federal workforce.” This alternative
reading is inconsistent with common sense and the text of the statute.
First, the majority thinks “working conditions” refers only to
“discrete employment decisions.” Under this interpretation, any
employment policy that changed working conditions for more than one
employee would not be a “significant change in . . . working conditions.” 5
U.S.C. § 2302(a)(2)(A)(xii). But there is no one-at-a-time requirement in
the text of § 2302(a)(2)(A). Like all general policies, the vaccine requirement
changes working conditions for each individual employee who is covered by
it.
Next, the majority reasons that “working conditions” cannot refer to
“medical decisions made outside the workplace.” Yet the majority fails to
explain why medical decisions that impact the circumstances under which a
job is performed—indeed, as we have seen globally, make work possible
during a pandemic—are not working conditions, regardless of where the
medical decision is made or the duration of its effects.
To the extent the majority argues that medical decisions made outside
the workplace are not covered by § 2302(a)(2)(A)(xii), the majority draws a
line, absent from the statute, based on where the conduct targeted by an
in “authorizing [OSHA] to exercise powers of vast economic and political significance.”
Id. at 665 (cleaned up). The jurisdictional issue in this case is not whether the President
had authority under the CSRA to require vaccinations, but rather whether such a
requirement changed working conditions for affected employees. And in NFIB v. OSHA,
the Court accepted that COVID-19 posed occupational risks; the problem was that
OSHA’s requirement went beyond those risks to address “general public health.” Id. at
666.
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employment policy occurs. If the majority is right, a policy that promotes a
“Drug-Free Federal Workplace” by prohibiting employees from using illegal
drugs outside work, as President Reagan enacted, would not be a significant
change in working conditions. 6 See Exec. Order No. 12,564, 51 Fed. Reg.
32,889, 32,889-90 (1986). Similarly, under this novel interpretation, a ban
on employees drinking liquor before work, requiring them to be sober at
work, would not be a significant change in working conditions. A policy that
employees have to use birth control outside work in order to refrain from
being pregnant at work would not be a significant change in working
conditions. Conversely, according to the majority’s logic, if the Executive
Order or guidance had only required employees to receive the vaccine (or
birth control) at work, the requirement would fall within § 2302(a)(2)(A).
This arbitrary distinction ignores that there is a change in “working
conditions” when the effects of a policy are felt at work, irrespective of the
initial place where the policy must be followed.
And if the majority argues that medical decisions made at the
workplace are not covered by § 2302(a)(2)(A)(xii), that reading is contrary
to the plain meaning of the text as courts have interpreted it. See, e.g., Fort
Stewart Schs., 495 U.S. at 645; Hesse, 217 F.3d at 1378; Mahoney, 721 F.3d at
636; Turner, 502 F. Supp. 3d at 367. Under the majority’s interpretation, a
directive that an employee receive any sort of medical treatment at work in
order to continue working—like an order that an employee take antimalarial
6
Our court found that President Reagan’s order survived a facial constitutional
challenge. See NTEU v. Bush, 891 F.2d 99, 102 (5th Cir. 1989). Prior to this appeal, relying
on the Supreme Court dicta that warrantless searches are not personnel actions, see supra
note 5, the district court had found that the CSRA did not preclude jurisdiction over a
challenge to the warrantless uranalysis testing aspect of President Reagan’s program. See
NTEU v. Reagan, 651 F. Supp. 1199, 1200-02 (E.D. La. 1987). As I explained, because of
amendments to the statute, the district court’s reasoning in reliance on this dicta is no
longer persuasive.
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medicine while detailed to a tropical environment—wouldn’t be a change in
that employee’s working conditions. The employee told to swallow the pills
at her desk might be surprised to hear that news.
Finally, the majority says that § 2302(a)(2)(A)(xii) “only include[s]
conditions that last for the duration of the employee’s job tenure.” The
majority does not explain why vaccinations, which may not last forever or
even for the entire term of employment, violate this rule. But more
importantly, the statute does not exclude a change in the circumstances of
work that has persistent or permanent effects on the employee from the term
“working conditions.” Like the majority’s other attempts to limit the scope
of “working conditions,” this constraint has no basis in the text of the statute.
For those reasons, § 2302 provides a vehicle for review of the vaccine
requirement under the CSRA, and Congress’s intent to preclude judicial
review over challenges to the requirement is fairly discernible within the
statutory scheme. See Elgin, 567 U.S. at 11.
2.
Were we to assume that the vaccine requirement cannot be challenged
under § 2302, the CSRA still generally precludes pre-enforcement challenges
to employment policies that, if violated, would result in discipline. 7 This is
because the CSRA (i) provides for post-enforcement review of major adverse
actions like removal, see 5 U.S.C. § 7513(d), and (ii) confers pre-enforcement
due process protections to employees against whom minor and major adverse
7
As I explain below, the requirement has been enforced against at least some of the
plaintiffs because disciplinary actions have been taken against them, and this suit challenges
those disciplinary actions. But if this suit is conceived of as a true pre-enforcement
challenge, as the majority insists—for example, if this suit only challenged the requirement
insofar as the requirement might be used to terminate the plaintiffs in the future—then the
CSRA still precludes pre-enforcement challenges for the reasons stated in this section.
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actions are proposed without providing those or other employees with
immediate review, see id. §§ 7503(b)(1)-(4), 7513(b)(1)-(4). In other words,
the CSRA gives statutory review to some employees (those against whom
major adverse actions have been taken) and not others (those against whom
major adverse actions have not been taken). Since the CSRA denies statutory
review to employees before they violate a policy and disciplinary action is
taken against them, Congress’s intent to preclude jurisdiction over pre-
enforcement challenges is fairly discernible in the statute. See Elgin, 567 U.S.
at 11.
This conclusion follows from the logic of Fausto. There, the Supreme
Court considered whether the CSRA’s “withholding of remedy” from
certain employees “was meant to preclude judicial review for those
employees, or rather merely to leave them free to pursue the remedies that
had been available before enactment of the CSRA.” 484 U.S. at 443-44.
Fausto, who had been suspended for thirty days from his job as an
administrator at a “Young Adult Conservation Corps camp,” was a
“nonpreference member of the excepted service.” Id. at 441 & n.1. The
CSRA does not include nonpreference excepted service members in the
definition of employees covered for minor and major adverse actions, see 5
U.S.C. § 7511(a)(1), and so the CSRA did not give Fausto a way to obtain
administrative review of his suspension and then appeal to the Federal
Circuit. See Fausto, 484 U.S. at 447-48. The Court concluded that “the
absence of provision for these employees to obtain judicial review” is a
“manifestation of a considered congressional judgment that they should not
have statutory entitlement to review for [minor and major adverse actions].”
Fausto, 484 U.S. at 448-49 (emphasis added).
In part, the Court reasoned that if Fausto could get judicial review of
his thirty-day suspension because he was excluded from the CSRA scheme,
then he could also get judicial review of a ten-day suspension even though the
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CSRA does not provide covered employees with administrative and judicial
review of suspensions less than fourteen days. Id. at 449-50. And if Fausto
had such an expanded right to judicial review, the “preferred position” of
covered employees in the statutory scheme would be turned upside down.
Id. In a footnote, the Court clarified that this line of reasoning assumes that
employees “who are given review rights by [the CSRA] . . . cannot expand
these rights by resort to pre-CSRA remedies.” Id. at 450 n.3; See Graham v.
Ashcroft, 358 F.3d 931, 934 (D.C. Cir. 2004) (Roberts, J.) (charting this logic).
Like Fausto, the plaintiffs here would have expanded rights under the
CSRA if they could obtain judicial review of the vaccine requirement before
major adverse actions are taken against them. There is generally no statutory
mechanism for judicial review of minor adverse actions. When a covered
employee faces a proposed minor or major adverse action, the CSRA gives him
procedural protections but no path to judicial review. See 5 U.S.C.
§§ 7503(b)(1)-(4), 7513(b)(1)-(4). Rather, an employee must wait until the
agency takes a major adverse action against him before appealing to the
MSPB and the Federal Circuit. See id. § 7513(d). Resort to judicial review
for a minor adverse action or a proposed action would thus expand an
employee’s right to judicial review outside the bounds of the CSRA. See
Graham, 358 F.3d at 934 (applying this logic to hold that the CSRA precludes
jurisdiction over “a personnel action as to which the CSRA grants no right of
review, even for employees who are otherwise granted such rights under the
CSRA in other circumstances”); Nyunt v. Chairman, Broadcasting Bd. of
Governors, 589 F.3d 445, 448 (D.C. Cir. 2009) (Kavanaugh, J.) (“When
Congress wants to preserve remedies outside the CSRA, it does so expressly;
for example, the CSRA maintains federal employees’ rights to bring suit
under Title VII and other anti-discrimination laws.”). The same is true
where an employee seeks to challenge an employment policy, like the vaccine
requirement, that permits an agency to discipline violators. See Vaccinations,
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Safer Fed. Workforce, https://perma.cc/G8T6-K8XN. The CSRA
says that an employee subject to such a policy has to wait until a major
adverse action is taken against him to get judicial review—and if the
discipline imposed falls below threshold of a major adverse action, or is
merely proposed, then no judicial review is available under the scheme.
The majority argues that jurisdiction over the plaintiffs’ claims is not
precluded because while the CSRA provides the exclusive means to
challenge “[p]ersonnel actions covered by the CSRA,” “plaintiffs are not
challenging CSRA-covered ‘personnel actions.’”
But the whole point of this lawsuit is to challenge CSRA-covered
personnel actions. The first paragraph of the complaint says so. “[F]ederal
employees” like the plaintiffs “have been put in an intolerable bind,” the
complaint alleges: “either submit to forced vaccination pursuant to illegal
agency requirements, or forfeit a career[.]” Consistent with this allegation,
the plaintiffs say that they have been disciplined through formal reprimands
and threatened with suspension and termination. They have put forward
evidence that disciplinary actions, including minor adverse actions, have
been taken against them for their noncompliance with the vaccine
requirement. 8 Accordingly, while the plaintiffs allege that they “do not
challenge any individual employment decisions,” and ask the court to hold
8
See, e.g., Feds for Med. Freedom v. Biden, No. 21-CV-356, Aff. of Brian Fouche ¶ 4,
Dkt. No. 35-1, Ex. 39 (asserting that employee “received . . . notice of a 14-day unpaid
suspension,” which is a minor adverse action under 5 U.S.C. § 7502); id., Aff. of John
Armbrust ¶ 6, Dkt. No. 3, Ex. 15 (asserting that employee received “written letter of
reprimand stating [that] it is [a] ‘disciplinary action’”); id., Aff. of Nevada Ryan ¶ 6, Dkt.
No. 3, Ex. 27 (similar); id., Aff. of Michael Ball ¶ 6, Dkt. No. 3, Ex. 16 (asserting that
employee “was disciplined in the form of a Letter of Counseling and Education”); id., Aff.
of M. LeeAnne Rucker-Reed ¶ 6, Dkt. No. 3, Ex. 26 (asserting that employee was
prohibited from traveling “to attend necessary training” or “to work Judicial [C]onference
or protection details” and “was not selected for a promotion opportunity”).
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the vaccine requirement unlawful, they also seek to enjoin the government
“from enforcing or implementing” the vaccine requirement—which would
keep the government from taking CSRA-covered personnel actions, like
suspension and termination, against them.
Indeed, this case is justiciable because it involves challenges to CSRA-
covered personnel actions. The plaintiffs’ Article III injuries stem from
personnel actions that they allege have been or will be taken against them
because of their refusal to comply with the vaccine requirement. As the
plaintiffs alleged in their complaint, “[t]he entire point of the [m]andate[] is
to force vaccinations quickly by threatening to initiate drastic employment or
contractual harms.” There is no mandate and no justiciable case without, in
the plaintiffs’ words, a “sword of Damocles,” or, as the Supreme Court put
it, “expos[ure] to the imposition of strong sanctions,” Abbot Lab’ys v.
Gardner, 387 U.S. 136, 154 (1967)—here, the personnel actions. And the
district court found this case ripe because 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.” 9 Feds for Med. Freedom, 581 F. Supp. 3d at
832.
The majority calls this suit a “pre-enforcement challenge” that the
plaintiffs can bring “outside of the CSRA,” and the broader implication of
this holding is unmistakable. This circuit’s door is now open to all pre-
9
The majority contends that because the plaintiffs “claim that the President’s
vaccine requirement violates the U.S. Constitution and the APA,” the plaintiffs do not
challenge any personnel action. But the legal arguments or causes of action by which the
plaintiffs try to attack the personnel actions taken or proposed against them are immaterial
to what the plaintiffs hope to get out of this suit: injunctive relief to avoid personnel actions.
See Elgin, 567 U.S. at 8 (concluding that “the CSRA precludes district court jurisdiction
over petitioners’ claims even though they are constitutional claims for equitable relief”).
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enforcement challenges to federal employment policies. 10 Plaintiffs are
welcome to challenge any personnel action before it takes place.
Under the majority’s rule, Justice Thomas’s Elgin and Justice Scalia’s
Fausto are dead letters. Elgin, who brought a constitutional challenge to a
federal statute “bar[ring] from employment by an Executive agency anyone
who has knowingly and willfully failed to register” for the Selective Service,
Elgin, 567 U.S. at 7, could have forum shopped into our court if he filed when
his removal from federal employment was ripe but had not yet taken place.
Elgin, 567 U.S. at 7. Likewise, Fausto could have sued when the agency
“advised [him] that it intended to dismiss him for a number of reasons.”
Fausto, 484 U.S. at 441. 11 So the majority would let plaintiffs end run
Supreme Court precedent.
10
The majority claims that the ripeness doctrine closes this loophole because “any
suit to enjoin a personnel action before it occurs will likely be unripe.” This ignores that a
personnel action may be certain to occur or imminent—and therefore ripe—long before
the action is taken against an employee. See Texas v. United States, 523 U.S. 296, 300 (1998)
(“A claim is not ripe for adjudication if it rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all.”).
11
The majority invokes two pre-Fausto cases that explicitly exercised jurisdiction
over certain pre-enforcement challenges. See NFFE v. Weinberger, 818 F.2d 935, 940 (D.C.
Cir. 1987); NTEU v. Devine, 733 F.2d 114, 117 n.8 (D.C. Cir. 1984). Because these cases
were decided before both Fausto and Elgin mapped the landscape of CSRA preclusion, they
are inapposite. In particular, Devine reasoned that just because it is true that “when a
statute provides a detailed scheme of administrative protection for defined employment
rights, less significant employment rights of the same sort are implicitly excluded and
cannot form the basis for relief directly through the courts,” it does not follow that “a
detailed scheme of administrative adjudication impliedly precludes preenforcement
judicial review of rules.” 733 F.2d at 117 n.8. But this proposition runs headlong into the
logic of Fausto, which I outlined in this section. As for Weinberger, there the court relied
entirely on the premise that “civilian federal employees may seek to enjoin government
actions that violate their constitutional rights.” 818 F.2d at 940. However, by ruling that
covered employees’ constitutional claims had to run through the CSRA scheme, Elgin
unsettled that assumption. As the D.C. Circuit recently recognized, this part of Weinberger
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Accordingly, the only conclusion consistent with the text of the
statute and binding Supreme Court authority is that Congress’s intent to
preclude pre-enforcement challenges is fairly discernible in the CSRA.
C.
But our inquiry does not stop there. Jurisdiction over the plaintiffs’
claims is only precluded if their “claims are of the type Congress intended to
“cannot survive the Supreme Court’s subsequent decisions in Thunder Basin and Elgin.”
Payne, 2023 WL 2576742, at *6.
Finally, the majority cites two Supreme Court cases that adjudicated the merits of
pre-enforcement challenges to laws and programs affecting federal employees without
addressing CSRA preclusion. See United States v. NTEU, 513 U.S. 454 (1995); NTEU v.
Von Raab, 489 U.S. 656 (1989). Both these cases involved constitutional claims and were
decided before Elgin, which clarified the standard for determining whether the CSRA
precludes constitutional claims, see 567 U.S. at 8-10, and applied the appropriate standard
to find that Elgin’s claims were precluded, see id. at 10-16.
For additional reasons, neither United States v. NTEU nor NTEU v. Von Raab is
persuasive. It is unclear whether enforcement of the statute at issue in United States v.
NTEU would have triggered CSRA review. See 513 U.S. at 460 (enforcement through civil
penalty). And in NTEU v. Von Raab, 489 U.S. 656, the district court did consider whether
the CSRA precluded jurisdiction, see 649 F. Supp. 380, 384-86 (E.D. La. 1986). The district
court’s jurisdictional holding rested on two principal grounds, one of which was abrogated
by the CSRA amendments and the other undermined by Elgin. First, the district court
reasoned that the challenged program, a drug-testing scheme for certain Customs Service
employees, was a warrantless search. 649 F. Supp. at 384-85. Relying on dicta in Lucas
that warrantless searches were not personnel actions under the CSRA, the district court
decided that a challenge to the drug-testing scheme was not covered under the CSRA. See
id. (discussing Lucas, 462 U.S. at 385 n.28). As I explained, supra note 5, at the time of the
district court’s and the Supreme Court’s decisions, the CSRA had not yet been amended
to add the “working conditions” phrase—abrogating the Lucas dicta and this part of Von
Raab. Regardless, since the Lucas dicta was highly persuasive when Von Raab was decided,
it is unsurprising that the Supreme Court did not take up jurisdiction sua sponte after
neither party raised the issue. See Pet’rs’ Br., NTEU v. Von Raab, No. 86-1879, 1988 WL
1025626; Resp’t’s Br., NTEU v. Von Raab, No. 86-1879, 1987 WL 880093. Second, like
Weinberger, the district court relied on the idea that the plaintiffs were seeking to enjoin
unconstitutional activity. See Von Raab, 649 F. Supp. at 385-86. But Elgin calls this theory
into question.
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be reviewed within” the CSRA. Thunder Basin, 510 U.S. at 212. Three
factors are probative of Congress’s intent: whether preclusion could
foreclose all meaningful judicial review of the claims; whether the claims are
collateral to the review scheme; and whether the claims are outside the
agency’s expertise. See Thunder Basin, 510 U.S. at 212-13; Free Enter. Fund
v. Public Co. Acct. Oversight Bd., 561 U.S. 477, 489 (2010) (cleaned up)
(“[W]e presume that Congress does not intend to limit jurisdiction if a
finding of preclusion could foreclose all meaningful judicial review; if the suit
is wholly collateral to a statute’s review provisions; and if the claims are
outside the agency’s expertise.” (cleaned up)).
Here, preclusion would foreclose meaningful judicial review of
plaintiffs’ pre-enforcement challenge to the requirement. So we ask whether
Congress intended the CSRA to have that effect in this case. Since plaintiffs’
challenge to the requirement as ultra vires sounds in separation-of-powers
principles, I conclude, in this narrow circumstance, that this claim is not of
the kind Congress intended to be precluded by the CSRA under Elgin and
Fausto. 12
1.
Neither § 2302, the All Writs Act, nor the procedure for challenging
major adverse actions provides for meaningful judicial review of plaintiffs’
pre-enforcement challenge.
12
Preclusion of plaintiffs’ claim under the APA, on the other hand, does not raise
the same constitutional concerns. After all, the APA does not apply to the President, see
Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992), and Congress’s potential
withdrawal of jurisdiction over agency-by-agency implementation of the requirement does
not raise the specter of the President altering the separation of powers or implicate a
constitutionally necessary remedy. Moreover, for the reasons stated in the panel opinion,
Feds for Med. Freedom, 30 F.4th at 510-12, the APA claim is not wholly collateral to the
CSRA scheme and does not exceed the MSPB’s expertise.
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I agree with the majority that plaintiffs do not have a path to
meaningful judicial review of their separation-of-powers claim under § 2302
or the All Writs Act, 28 U.S.C. § 1651. As described above, judicial review
under § 2302 is not available unless the OSC petitions the MSPB for
corrective action. See 5 U.S.C. §§ 1214(b)(2)(C), 1214(c), 7703(b)-(c). The
plaintiffs would have to wait and see if the OSC filed a petition. And the OSC
could insulate the requirement from judicial review by declining to escalate
to the MSPB. 13
Mandamus relief under § 1651 does not offer meaningful judicial
review, either. While § 1651 “authorizes employment of extraordinary writs,
it confines the authority to the issuance of process ‘in aid of’ the issuing
court’s jurisdiction.” Clinton v. Goldsmith, 526 U.S. 529, 534 (1999) (quoting
28 U.S.C. § 1651(a)). If the CSRA strips jurisdiction from federal courts to
hear pre-enforcement challenges in their “arising under” jurisdiction, 28
U.S.C. § 1331, then no jurisdiction exists for mandamus to aid. 14 And as the
13
The plaintiffs could seek a writ of mandamus compelling the OSC to take the
ministerial act of investigating a complaint, but not to petition the MSPB for corrective
action, which is within OSC’s discretion. See Carson v. U.S. Off. of Special Counsel, 633
F.3d 487, 491-92 (6th Cir. 2011).
14
The prospective jurisdiction doctrine ordinarily permits an appellate court to
issue writs that “are within its appellate jurisdiction although no appeal has been
perfected.” FTC v. Dean Foods Co., 384 U.S. 597, 630 (1966). “Once there has been a
proceeding of some kind instituted before an agency . . . that might lead to an appeal, it
makes sense to speak of the matter as being within our appellate jurisdiction—however
prospective or potential that jurisdiction might be.” In re Tennant, 359 F.3d 523, 529 (D.C.
Cir. 2004) (Roberts, J.) (cleaned up). Arguably, in the event that a pre-enforcement
complaint could be made with the OSC, the possibility that the OSC would petition the
MSPB and that the MSPB would issue an appealable final order would render the case in
the Federal Circuit’s protective jurisdiction. Cf. In re Donohoe, 311 F. App’x 357, 358-59
(Fed. Cir. 2008) (per curiam) (concluding that the court lacked authority under the All
Writs Act to mandamus the MSPB where the petitioner ‘did not seek remedy from [the
MSPB] or initiate any proceeding at [the MSPB] before seeking relief from [the Federal
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majority points out, there is no reason why the CSRA would strip jurisdiction
under § 1331 but not § 1651.
Finally, the CSRA channel for appellate review over major adverse
actions is not meaningfully available in this case. See 5 U.S.C. §§ 7513(d),
7703(a)(1), (b)(1)(A). The Executive Order does not require agencies to take
major adverse actions against noncompliant employees, see Exec. Order No.
14043, 86 Fed. Reg. at 50,990, and neither does the guidance. Instead, the
guidance gives agencies discretion but does not explicitly require them to
discipline employees with “a letter of reprimand, followed by a short
suspension,” “a longer second suspension,” and “proposing removal.”
Vaccinations, Safer Fed. Workforce; see Guidance on Enforcement of
Coronavirus Disease 2019 Vaccination Requirement for Federal Employees –
Executive Order 14043, Off. of Personnel Mgmt.
https://chcoc.gov/sites/default/files/Enforcement-Guidance-
FAQs_508.pdf (similar). This disciplinary policy would not necessarily
result in a major adverse action like removal. At most, the guidance states
that “consistency across Government in enforcement of this Government-
wide vaccine policy is desired, and the Executive Order does not permit
exceptions from the vaccination requirement except as required by law.”
Vaccinations, Safer Fed. Workforce; compare Exec. Order No. 12,564,
51 Fed. Reg. at 32,889-90 (“Agencies shall initiate action to remove from the
service any employee who is found to use illegal drugs.” (emphasis added)).
In theory, under the vaccination requirement and the CSRA, agencies
could circumvent judicial review by only taking minor adverse actions against
employees who refused vaccination. This appears to have been agency
Circuit]”). But since the CSRA likely strips the Federal Circuit of § 1651 jurisdiction, this
theory is a non-starter.
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practice. During the almost two months that passed from the start of
enforcement to the district court’s injunction, there is no evidence that any
agency proposed a major adverse action against any noncompliant employee.
Had the vaccine requirement been allowed to continue, agencies could have
continued suspending employees for fourteen-day periods without triggering
the major adverse action process. Because the requirement’s disciplinary
policy gives agencies discretion to evade judicial review, and because
implementation of the policy had that effect, I conclude that CSRA
preclusion would foreclose all meaningful review. 15
2.
The plaintiffs’ challenge to the vaccine requirement as exceeding the
President’s statutory and constitutional authority is not the sort of claim that
Congress intended to remove from all meaningful judicial review.
“Congress generally does not violate Article III when it strips federal
jurisdiction over a class of cases.” Patchak v. Zinke, 138 S. Ct. 897, 906 (2018)
(plurality op.). But there are limits on this jurisdiction-stripping power, at
least two of which are relevant here. “Jurisdiction-stripping statutes can
violate other provisions of the Constitution.” Patchak, 138 S. Ct. at 906 n.3
(plurality op.). And they can violate Article III “if they attempt to direct the
15
The district court found this case ripe in part because “some plaintiffs face an
inevitable firing.” Feds for Med. Freedom, 581 F. Supp. 3d at 832. But the government letter
upon which the district court relied imposed a fourteen-day suspension and said, “any
further misconduct . . . will not be tolerated and may result in more severe discipline.”
Regardless, there is daylight between when an action becomes ripe because of the threat of
disciplinary action and when a major adverse action is sufficiently certain such that
meaningful judicial review is not foreclosed. Of course, it will not always be the case that a
disciplinary policy that permits but does not require major adverse actions be taken against
employees will foreclose all meaningful review. But the language of the guidance and
patterns of agency enforcement show that preclusion would foreclose review here.
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result by effectively altering legal standards that Congress is powerless to
prescribe.” Id. (quoting Bank Markazi v. Peterson, 578 U.S. 212, 228 (2016)).
These principles raise serious constitutional doubts about an
interpretation of the CSRA that would foreclose all federal jurisdiction over
plaintiffs’ ultra vires claim. Congress, not the President, has the power to
define federal court jurisdiction. See U.S. Const., art. I, § 8 (giving Congress
the power to “constitute Tribunals inferior to the supreme Court”); id. art.
III, § 1 (vesting the judicial power “in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish”).
If we read the CSRA as permitting the President to say which of his federal
employment policies were subject to judicial review—here, by creating a
disciplinary scheme that might never permit appeal from a personnel
action—the statute might transfer jurisdictional control from Article I to
Article II.
In the usual course of administration under the CSRA, this lurking
threat of an unconstitutional delegation never surfaces. See Gundy v. United
States, 139 S. Ct. 2116, 2123 (2019) (Congress “may not transfer to another
branch ‘powers which are strictly and exclusively legislative.’” (quoting
Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825)). When a covered
employee violates an employment policy, the Executive Branch merely
decides whether a particular infraction warrants a major adverse action or
not. These discretionary decisions about how to punish employees are a
lawful exercise of Executive authority “to implement and enforce” the
CSRA. Id. Similarly, the Executive can usually decide that a particular class
of conduct does not merit a major adverse action as punishment without
triggering a constitutional question.
But the threat of an unconstitutional delegation becomes material
when the Executive uses the CSRA to decide the outcome of a separation-of-
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powers challenge to a federal employment policy. Whatever power the
President has to enact those policies comes from Congressional enactments
and the Constitution, neither of which the President can change himself. See
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). So, by
designing an employment policy in such a way that the CSRA precludes all
federal jurisdiction to review a separation-of-powers challenge, the President
could nullify any limits on his powers set by Article I and Article II. 16
Further, by doing so, he would decide the outcome of this litigation. I doubt
that Congress, in enacting the CSRA, intended to give the President control
of federal jurisdiction so that he might acquire powers that the plaintiffs
contend have not been given to him by statute or the Constitution.
In addition, if the CSRA foreclosed all meaningful review over the
plaintiffs’ ultra vires claim, a serious constitutional question would arise
about whether Congress had eliminated a mandatory remedy for separation-
16
This scenario is a variation on the puzzle that the Supreme Court solved in United
States v. Klein, 80 U.S. 128 (1872). There, the plaintiff sought to recover the sale proceeds
of expropriated property on behalf of an estate under a Civil War law that allowed recovery
if the owner had “never given any aid or comfort to the present rebellion.” Bank Markazi,
578 U.S. at 227 (cleaned up). The original estate holder had been pardoned by President
Lincoln, and the Supreme Court had held that a Presidential pardon satisfied the loyalty
requirement of the expropriation statute. See United States v. Padelford, 76 U.S. 531, 543
(1870). Congress then passed a statute repudiating the Supreme Court’s decision. The
statute said that pardons could not be used to prove loyalty, that accepting a pardon under
certain circumstances would prove disloyalty, and that the Court of Claims and the
Supreme Court had “to dismiss for want of jurisdiction any claim based on a pardon.”
Bank Markazi, 578 U.S. at 227. In Klein, the Supreme Court held that this jurisdiction-
stripping statute “passed the limit which separated the legislative from the judicial power,”
Klein, 80 U.S. at 147, by seeking “to nullify” “Presidential pardons . . . by withdrawing
federal-court jurisdiction,” Bank Markazi, 578 U.S. at 227 n.19. Stated in general terms,
Congress had impermissibly “exercise[d] its authority . . . to regulate federal jurisdiction
. . . in a way that require[d] a federal court to act unconstitutionally.” Id. (cleaned up)
(quoting Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86 Geo. L.J.
2537, 2549 (1998)).
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of-powers violations. There may be some “constitutionally necessary
remedies for the violation of constitutional rights” that Congress cannot
preclude through jurisdiction stripping. Richard H. Fallon, Jr., Jurisdiction-
Stripping Reconsidered, 96 Va. L. Rev. 1043, 1134 (2010). Injunctive relief
for Executive Branch actions that exceed the President’s authority may be
one such remedy. 17 See Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S.
94, 108 (1902) (“The acts of all [Executive Branch] officers must be justified
by some law, and in case an official violates the law to the injury of an
individual the courts generally have jurisdiction to grant relief. . . . Otherwise,
the individual is left to the absolutely uncontrolled and arbitrary action of a
public and administrative officer, whose action is unauthorized by any law,
and is in violation of the rights of the individual.).
Had Congress foreclosed all meaningful judicial review over
plaintiffs’ ultra vires claim, we would have to confront these difficult
constitutional questions today. But nothing in the CSRA shows that
Congress meant to preclude federal jurisdiction to adjudicate separation-of-
powers challenges to employment policies set by the President. An ultra vires
claim like the plaintiffs’ is therefore within our narrow subject-matter
jurisdiction and outside the comprehensive CSRA scheme described by the
Supreme Court in Elgin and Fausto.
III.
Because we have jurisdiction over plaintiffs’ challenge to the
requirement as ultra vires, we next must consider whether the district court
abused its discretion in granting the plaintiffs’ request for a nationwide
17
The same might be true of individual constitutional claims. See Webster v. Doe,
486 U.S. 592, 603 (1988) (“[S]erious constitutional question[s] . . . would arise if a federal
statute were construed to deny any judicial forum for a colorable constitutional claim.”
(cleaned up)).
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preliminary injunction. See Atchafalaya Basinkeeper v. U.S. Army Corps of
Eng’rs, 894 F.3d 692, 696 (5th Cir. 2018). To obtain a preliminary injunction,
the plaintiffs must establish that they are “likely to succeed on the merits”
and “likely to suffer irreparable harm in the absence of preliminary relief,”
“that the balance of the equities tips in [their] favor, and that an injunction is
in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).
For the reasons I offered in my motions panel dissent, see Feds for Med.
Freedom, 25 F.4th at 356-60, reproduced in relevant part below, 18 infra
Section III.A, the plaintiffs have not shown that they are entitled to a
preliminary injunction, and a nationwide injunction is inappropriate.
A.
Had our court ever given it the chance, the government likely would
have succeeded 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, 140 S. Ct. 2183, 2191 (2020)
(quoting U.S. Const. art. II, § 1, cl. 1; and then quoting 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 (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
18
I have made some edits to the text.
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Branch No. 496, Nat’l Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S.
264, 273 n.5 (1974) (noting “the President’s responsibility for the efficient
operation of the Executive Branch”); Crandon v. United States, 494 U.S. 152,
180 (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); NTEU v. Bush, 891 F.2d 99 (5th Cir. 1989) (upholding
President Reagan’s executive order authorizing random drug testing of
certain federal employees). The President, as head of the federal executive
workforce, has authority to establish the same immunization requirement
that many private employers 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, 142 S. Ct. 661 (2022), and Biden v. Missouri, 142
S. Ct. 647 (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] requirement.” 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 requirements . . . fall squarely within a
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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 Congress 19 and state legislators, 20 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 (1905) (upholding the authority of
states to enforce compulsory vaccination laws); Austin v. U.S. Navy Seals 1-
26, 142 S. Ct. 1301 (2022) (staying district court order preventing Navy from
considering vaccination status in making operational decisions); Lukaszczyk
v. Cook Cnty., 47 F.4th 587 (7th Cir. 2022) (upholding state and local vaccine
19
Cf. 8 U.S.C. § 1182(a)(1)(A)(ii) (statutory requirement that any alien “who seeks
admission as an immigrant” must “receive[] vaccination against vaccine-preventable
diseases,” including “mumps, measles, rubella, polio, tetanus and diphtheria toxoids,
pertussis, influenza type B and hepatitis B”).
20
For example, at least one state governor recently exercised his executive
authority to permanently require COVID-19 vaccinations for certain state employees. See
Off. of Governor Jay Inslee, State of Wash., Directive 22-13.1, COVID-19 Vaccination
Standards for State Employees (Aug. 5, 2022). A bill has been introduced in the
Washington House to permit reemployment for state employees who were dismissed from
their jobs for failing to get vaccinated. H.B. 1029, 68th Leg., Reg. Sess. (Wash. 2023).
Conversely, in Texas, Governor Abbot issued an executive order prohibiting Texas entities
from requiring employees to get vaccinated and that would terminate when the Texas
legislature passed legislation “consider[ing] this issue.” Exec. Dep’t, State of Tex., Exec.
Order GA 40, Relating to Prohibiting Vaccine Mandates, Subject to Legislative Action
(Oct. 11, 2021).
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requirements), cert. denied sub nom., Troogstad v. Chicago, 143 S. Ct. 734
(2023). 21
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 performed his role as CEO of the federal
workforce, 22 taking executive action in order to keep open essential
government buildings; 23 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.
21
Indeed, executive immunization requirements predate the birth of this country,
with George Washington famously requiring members of the Continental Army to be
inoculated against smallpox. See Letter from George Washington to William Shippen, Jr.
(Feb. 6, 1777), in 8 The Papers of George Washington, Revolutionary
War Series, 6 January 1777 - 27 March 1777, 264 (Frank E. Grizzard, Jr., ed.)
(1998) (“Finding the small pox to be spreading much and fearing that no precaution can
prevent it from running thro’ the whole of our Army, I have determined that the troops
shall be inoculated.”).
22
Notably, in a recent survey of nearly 500 employers, the employee benefits
consultancy Mercer “found 44% with a [vaccine] requirement currently in place and 6%
planning to implement one, with another 9% still considering it.” Beth Umland & Mary
Kay O’Neill, Worksite Vaccine Requirements in the Wake of the OSHA ETS (Jan. 27, 2022),
https://www.mercer.us/our-thinking/healthcare/worksite-vaccine-requirements-in-the-
wake-of-the-osha-ets.html.
23
As noted earlier, in contrast to many of the essential services and executive
agencies that the President oversees, Article III institutions such as this court can close our
buildings to the public.
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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, to challenge the order through the
CSRA, or to challenge the order in federal court, as they have done in this
case. Of course, any American who disagrees with the content of the order
has the right to vote the President out of office. Relatedly, Congress
rescinded the President’s requirement that members of the Armed Forces
get vaccinations. See James M. Inhofe Nat’l Def. Authorization Act for
Fiscal Year 2023, Pub. L. No. 117-263, § 525 (2022). Thus, consistent with
NFIB v. OSHA and Biden v. Missouri, and applying the Supreme Court’s
methodology for assessing the President’s emergency powers in the absence
of direct Congressional intervention, see Youngstown, 343 U.S. at 635-38(Jackson, J., concurring in the judgment and opinion of the Court); Dames &
Moore v. Regan, 453 U.S. 654, 669 (1981) (“[E]xecutive action in any
particular instance falls . . . at some point along a spectrum running from
explicit congressional authorization to explicit congressional prohibition.
This is particularly true as respects cases . . . involving responses to
international crises the nature of which Congress can hardly have been
expected to anticipate in any detail.”), accountability for the federal
executive employee immunization requirement is open, obvious, and vested
in one elected, democratically accountable official. These cases do not cast
doubt on, but rather determinatively confirm, the President’s emergency
power to issue Executive Order No. 14043. Yet our court refuses to explain
why the President does not have this power.
In addition to the issues discussed above, the government is also likely
to succeed in showing that the plaintiffs have not met their burden for
obtaining a preliminary injunction. A plaintiff seeking such an injunction
must establish, among other requirements, “that he is likely to suffer
irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at
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20. However, even if the plaintiffs were to lose their jobs as a result of this
order, we have explained in a previous case involving “discharge under the
federal civil service laws” that “[i]t is practically universal jurisprudence in
labor relations in this country that there is an adequate remedy for individual
wrongful discharge after the fact of discharge”: “reinstatement and back
pay.” Garcia v. United States, 680 F.2d 29, 31-32 (5th Cir. 1982). The CSRA
makes this remedy available to the plaintiffs. See 5 U.S.C. § 7118(a)(7)(C).
Accordingly, the district court did not show that the plaintiffs are likely to
suffer irreparable harm in the absence of preliminary relief. Our court
rubberstamps the injunction without identifying any irreparable harm, either.
Finally, even if I were to conclude that the plaintiffs were entitled to
injunctive relief, I agree with Judge Haynes and would not affirm the district
court’s grant of a nationwide injunction. 24 As our court recently explained,
nationwide injunctions “can constitute ‘rushed, high-stake, low-information
decisions,’ while more limited equitable relief can be beneficial.” Louisiana
v. Becerra, 20 F.4th 260, 264 (5th Cir. 2021) (quoting Dep’t of Homeland Sec.
v. New York, 140 S. Ct. 599, 600, (2020) (Gorsuch, J., concurring in the grant
of a stay)); see Kentucky v. Biden, 57 F.4th 545, 556-57 (6th Cir. 2023) (finding
district court abused its discretion in extending preliminary injunction of
vaccine requirement for federal contracts to non-parties); see also Trump v.
Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring) (observing
that nationwide injunctions “are beginning to take a toll on the federal court
system—preventing legal questions from percolating through the federal
24
In this respect, I join Judge Haynes’s separate opinion.
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courts, encouraging forum shopping, and making every case a national
emergency for the courts and for the Executive Branch”). 25
Cognizant of the separation of powers, as well as our judicial ignorance
of the immense task of running the Executive Branch of government, for
which the President, informed by public health experts, is solely accountable,
I would not allow an unelected lower court to impose its Article III fiat on
millions of Article II employees, above all when a dozen other lower courts
have declined to enjoin the President’s order. More egregious, our court
should not have approved this unaccountable exercise of the judicial power
without explaining why an injunction was warranted in the first place.
B.
In affirming the district court’s nationwide injunction, the majority
defends the scope of the injunction but does not say why the district court
properly exercised its discretion in granting any injunction at all. “After
25
The majority argues that a nationwide injunction is permissible because “any
benefit to outside parties is ‘merely incidental.’” I fail to understand how this is so.
Historically, courts of equity “did not provide relief beyond the parties to the case.” Trump
v. Hawaii, 138 S. Ct. 2392, 2427 (2018) (Thomas, J., concurring). Of course, an injunction
tailored to the parties in a case might sometimes incidentally benefit a nonparty. For
example, “injunctions barring public nuisances” might “benefit[] third parties . . . merely
[as] a consequence of providing relief to the plaintiff,” id., because when a source of water
or air pollution is enjoined, everyone’s water or air gets cleaner. But a nationwide
injunction barring the vaccine requirement is not analogous to an injunction barring a public
nuisance. Outside parties to this case who don’t want to get vaccinated are directly shielded
from federal government enforcement action by the nationwide injunction; they are direct
“beneficiaries” of the relief granted to plaintiffs, even though they are not plaintiffs. In
sum, there is no way to turn upside down Justice Thomas’s skepticism toward nationwide
injunctions by framing this case as an exception to “historical limits on equity and judicial
power.” Id. at 2429 (Thomas, J., concurring). Rather, by affirming the Executive Order,
every court excepts ours has respected the President’s decision to protect federal
employees and the public from the effects of a pandemic disease and respected the principle
that courts do not make federal policy. See id. at 2427 (Thomas, J., concurring).
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carefully considering the district court’s opinion and the Government’s
criticisms of it, we are unpersuaded that the district court abused its
discretion. And we need not repeat the district court’s reasoning, with which
we substantially agree”—that’s it. In two sentences and without any
explanation, after more than a year of government attempts to get our court
to engage, we limit the President’s authority to protect federal employees
from a pandemic. Our perfunctory treatment of this important and difficult
issue does not reflect a “[d]ue regard for the implications of the distribution
of powers in our Constitution and for the nature of the judicial process as the
ultimate authority in interpreting the Constitution.” Youngstown, 343 U.S.
at 597 (Frankfurter, J., concurring). Nor does it meet our basic “obligation
to say enough that the public can be confident that cases are decided in a
reasoned way.” United States v. Handlon, 53 F.4th 348, 353 (5th Cir. 2022);
see Rita v. United States, 551 U.S. 338, 356 (2007).
***
This case requires us to determine the powers of the President to
regulate the Executive Branch workforce—in other words, “to intervene in
determining where authority lies as between the democratic forces in our
scheme of government.” Youngstown, 343 U.S. at 597 (Frankfurter, J.,
concurring). As Justice Frankfurter warned during another national
emergency, “we should be wary and humble” in drawing those lines. Id.Contrary to his teachings, our court, asserting that it is right but unable to
explain why, hastily sketches the President as a diminished figure in our
system of government.
I respectfully dissent.
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Carl E. Stewart, Circuit Judge, joined by Richman, Chief Judge, and
Dennis and Graves, Circuit Judges, dissenting:
Respectfully, I dissent from the en banc majority opinion because, as
the original panel opinion held, the Civil Service Reform Act (“CSRA”), 5
U.S.C. § 1101 et seq., precludes district court review of challenges to
Executive Order 14043 (“the Order”). See Feds for Med. Freedom v. Biden
(“Feds II”), 30 F.4th 503, 511 (5th Cir. 2022). As the Supreme Court
explained in United States v. Fausto, “the CSRA comprehensively overhauled
the civil service system, creating an elaborate new framework for evaluating
adverse personnel actions against [federal employees].” 484 U.S. 439, 443
(1988) (internal quotation marks and citations omitted). “It prescribes in
great detail the protections and remedies applicable to such action, including
the availability of administrative and judicial review.” Id.As we explained in Feds II, “[t]he CSRA established ‘the
comprehensive and exclusive procedures for settling work-related
controversies between federal civil-service employees and the federal
government.’” 30 F.4th at 506 (quoting Rollins v. Marsh, 937 F.2d 134, 139
(5th Cir. 1991)). Prior to the enactment of the CSRA, administrative and
judicial review under the civil service system was “haphazard,” resulting
from the “outdated patchwork of statutes and rules built up over almost a
century.” Fausto, 484 U.S. at 444 (quoting S. Rep. No. 95–969, at 3
(1978)). This system drew “widespread” criticism, in part because it
produced inconsistent judicial decisions on similar matters due to the
“concurrent jurisdiction, under various bases of jurisdiction, of district
courts in all Circuits and the Court of Claims.” Id. at 445. In response to these
issues, Congress enacted the CSRA, which imposed “an integrated scheme
of administrative and judicial review, designed to balance the legitimate
interests of the various categories of federal employees with the needs of
sound and efficient administration.” Id.85
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The CSRA provides different procedures for employees facing
different types of employment actions. Feds II, 30 F.4th at 507 (“The CSRA
distinguishes between employees facing ‘proposed’ adverse action and those
who have already suffered an adverse action[.]”). Employees facing
“proposed” action are entitled to notice, an opportunity to respond, legal
representation, and written reasons supporting the employing agency’s
decision. 5 U.S.C. § 7513(b). A Merit Systems Protection Board (“MSPB”)
appeal, however, is only guaranteed to “employee[s] against whom an action
is taken.” Feds II, 30 F.4th at 508; § 7513(d). “If the employee prevails on
appeal, the MSPB can order the agency to comply with its decision and award
‘reinstatement, backpay, and attorney’s fees.’” Id. at 507; Elgin v. Dep’t of
Treasury, 567 U.S. 1, 6 (2012) (citing 5 U.S.C. §§ 1204(a)(2), 7701(g)). “‘An
employee who is dissatisfied with the MSPB’s decision is entitled to judicial
review in the United States Court of Appeals for the Federal Circuit’ under
§ 7703.” Id. (quoting Elgin, 567 U.S. at 6). The jurisdiction of the Federal
Circuit over such appeals is “exclusive.” Id. (citing 28 U.S.C. § 1295(a)(9)).
Once an employee appeals to the Federal Circuit, that court must “review
the record and hold unlawful and set aside any agency action, findings, or
conclusions that are (1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported
by substantial evidence.” Id. (citing 5 U.S.C. § 7703(c)(1)–(3) (internal
quotation marks omitted)). This remedial scheme is intricate and as the
Supreme Court has recognized, “[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.” Id.(quoting Elgin, 567 U.S. at 11–12).
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In Elgin v. Department of Treasury, the Supreme Court addressed an
attempt by former federal employees to “carve out an exception to CSRA
exclusivity for facial or as-applied constitutional challenges to federal
statutes.” 567 U.S. at 12. The Court rejected their attempt, explaining that
the CSRA’s text and structure demonstrated that “[t]he availability of
administrative and judicial review under the CSRA generally turns on the
type of civil service employee and adverse employment action at issue,” not
whether a challenged action is constitutionally authorized. Id. at 12–13. The
Court further noted that the CSRA’s purpose, which is to create an
integrated scheme of review, confirms that “the statutory review scheme is
exclusive.” Id. at 13. The Court ultimately held that “the CSRA provides the
exclusive avenue to judicial review when a qualifying employee challenges an
adverse employment action by arguing that a federal statute is
unconstitutional.” Id. at 5.
Relying on this Supreme Court guidance, the Feds II panel majority
reasoned that this case is “the vehicle by which [the plaintiffs] seek to avoid
imminent adverse employment action” for not complying with the Order,
“which is precisely the type of personnel action regularly adjudicated by the
MSPB and the Federal Circuit within the CSRA scheme.” 30 F.4th at 511
(citing Elgin, 567 U.S. at 22) (internal quotation marks omitted). The panel
majority further determined that the plaintiffs’ claims did not exceed the
MSPB’s expertise. Id. (citing Elgin, 567 U.S. at 22 (recognizing that “many
threshold questions . . . may accompany a constitutional claim” and “the
MSPB can apply its expertise” to those questions)).
A unanimous Fourth Circuit panel agreed with our view that
“Congress intended for the CSRA to cover [the plaintiffs’] claims” and
“that the district court lacked jurisdiction” over a challenge to the Order. See
Rydie v. Biden, No. 21-2359, 2022 WL 1153249, at *3 (4th Cir. Apr. 19, 2022).
Like the Feds II panel majority, Rydie relied on Elgin to hold that “Congress
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intended the CSRA to foreclose judicial review in at least some
circumstances.” Id. at *4. As the Rydie panel observed, courts use the three
Thunder Basin factors 1 to determine whether Congress intended the CSRA
to foreclose judicial review in certain cases and concluded that the factors
militated in favor of preclusion. Rydie, 2022 WL 1153249, at *4–7. Both the
Feds II and Rydie decisions align with those of other courts that have
considered challenges to the Order since April of last year. See Am. Fed’n of
Gov’t Emps. Loc. 2018 v. Biden, 598 F. Supp. 3d 241, 248 (E.D. Pa. 2022)
(“This action will be dismissed in its entirety for lack of subject-matter
jurisdiction.”); Payne v. Biden, 602 F. Supp. 3d 147, 151 (D.D.C. 2022)
(“The Court will grant the Government’s Motion because the Civil Service
Reform Act deprives the Court of subject-matter jurisdiction over this
workplace dispute involving a covered federal employee.”) 2; Am. Fed’n of
Gov’t Emps. Loc. 2586 v. Biden, No. CIV-21-1130-SLP, 2022 WL 3695297, at
*4 (W.D. Okla. July 22, 2022) (“[T]he Court finds the CSRA’s scheme is
detailed, comprehensive and exclusive and it is fairly discernible that
Congress intended the Civilian Employees’ claims to be encompassed within
that scheme.”).
Because I am not persuaded that we should create a split with the
Fourth Circuit or depart from the sound reasoning of numerous other federal
1
The Thunder Basin factors are: “(1) whether a finding of preclusion could
foreclose all meaningful judicial review; (2) whether the claims were wholly collateral to a
statute’s review provisions; and (3) whether the claims were outside the agency’s
expertise.” See Cochran v. SEC, 20 F.4th 194, 205 (5th Cir. 2021), cert. granted SEC v.
Cochran, No. 21-1239, 2022 WL 1528373 (U.S. May 16, 2022) (citing Thunder Basin Coal
Co. v. Reich, 510 U.S. 200, 207 (1994)).
2
The D.C. Circuit has since ruled in the Government’s favor. See Payne v. Biden, -
-- F.4th ---, 2023 WL 2576742 (D.C. Cir. 2023).
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courts that have since heard similar challenges and reached the same result,
I would affirm our original holding in Feds II that the CSRA precludes the
district court’s jurisdiction in this case. See 30 F.4th at 511.
89