The opinion
Case: 22-40043 Document: 00516272475 Page: 1 Date Filed: 04/07/2022
United States Court of Appeals United States Court of Appeals
for the Fifth Circuit
Fifth Circuit
FILED
April 7, 2022
Lyle W. Cayce
No. 22-40043 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
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No. 22-40043
Before Barksdale, Stewart, and Dennis, Circuit Judges.
Carl E. Stewart, Circuit Judge:
On September 9, 2021, President Biden issued Executive Order
14043, which mandates COVID-19 vaccination for all executive branch
employees, subject to medical and religious exceptions. Several plaintiffs
filed suit, alleging that the President exceeded his authority. The district
court found that the plaintiffs were likely to succeed on the merits of their
claim and that the equities favored them. It therefore preliminarily enjoined
enforcement of the Order nationwide. The Government appealed.
For the following reasons, we VACATE the district court’s
preliminary injunction and REMAND to the district court with instructions
to DISMISS for lack of jurisdiction.
I. Facts & Procedural History
Executive Order 14043 provides that “[e]ach agency shall implement,
to the extent consistent with applicable law, a program to require COVID-19
vaccination for all of its Federal employees, with exceptions only as required
by law.” Requiring Coronavirus Disease 2019 Vaccination for Federal
Employees, 86 Fed. Reg. 50,989, 50,990 (Sept. 9, 2021). The Order directed
the Safer Federal Workforce Task Force to publish guidance on
implementing the vaccine mandate. Id. at 50,989. President Biden issued the
Order “[b]y the authority vested in [him] as President by the Constitution
and the laws of the United States of America, including” 5 U.S.C. §§ 3301,
3302, and 7301. Id.
On September 13, 2021, the Task Force published guidance directing
agencies to apply their usual processes for evaluating religious and medical
exceptions to the mandate. See Safer Federal Workforce Task Force,
Vaccinations, https://go.usa.gov/xe5aC (last visited April 7, 2022). It also
required non-exempt employees to be fully vaccinated by November 22,
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2021, id., but the Government later postponed that deadline to early 2022.
Under the guidance, non-exempt employees who either refuse vaccination or
fail to disclose whether they have received a vaccine face escalating
disciplinary procedures that include counseling, suspension, and
termination. Id. Employees are not subject to discipline while their exception
requests are pending, and they have two weeks after an exception request’s
denial to receive their first (or only) dose of a COVID-19 vaccine. Id.
On December 21, 2021, a 6,000-member organization called “Feds
for Medical Freedom,” along with several other organizations and individual
plaintiffs, challenged Executive Order 14043 in federal court. They moved
for a nationwide preliminary injunction, alleging that the Order likely exceeds
the President’s authority. The district court agreed and granted preliminary
injunctive relief on January 21, 2022. It recognized that “the federal-worker
mandate had already been challenged in several courts across the country.” 1
Feds for Med. Freedom v. Biden (“Feds for Med. Freedom I”), No. 3:21-CV-356,
1
At least twelve district courts previously rejected challenges to Executive Order
14043 for various reasons. See Brnovich v. Biden, No. CV-21-1568, ––– F. Supp. 3d ––––,
2022 WL 252396 (D. Ariz. Jan. 27, 2022); Oklahoma v. Biden, No. CIV-21-1136, –––
F. Supp. 3d ––––, 2021 WL 6126230 (W.D. Okla. Dec. 28, 2021); Brass v. Biden, No. 21-
cv-2778, 2021 WL 6498143 (D. Colo. Dec. 23, 2021) (report and recommendation),
adopted, 2022 WL 136903 (D. Colo. Jan. 14, 2022); AFGE Local 501 v. Biden, No. 21-23828-
CIV, ––– F. Supp. 3d ––––, 2021 WL 6551602 (S.D. Fla. Dec. 22, 2021); Donovan v. Vance,
No. 21-CV-5148, ––– F. Supp. 3d ––––, 2021 WL 5979250 (E.D. Wash. Dec. 17, 2021);
McCray v. Biden, No. 21-2882, 2021 WL 5823801 (D.D.C. Dec. 7, 2021); Navy Seal 1 v.
Biden, No. 21-cv2429, ––– F. Supp. 3d ––––, 2021 WL 5448970 (M.D. Fla. Nov. 22, 2021);
Rydie v. Biden, No. 21-2696, ––– F. Supp. 3d ––––, 2021 WL 5416545 (D. Md. Nov. 19,
2021); Altschuld v. Raimondo, No. 21-cv-2779, 2021 WL 6113563 (D.D.C. Nov. 8, 2021);
Church v. Biden, No. 21-2815, ––– F. Supp. 3d ––––, 2021 WL 5179215 (D.D.C. Nov. 8,
2021); Smith v. Biden, No. 21-cv-19457, 2021 WL 5195688 (D.N.J. Nov. 8, 2021); Foley v.
Biden, No. 21-cv-1098, 2021 WL 5750271, ECF No. 18 (N.D. Tex. Oct. 6, 2021); see also
Feds for Med. Freedom v. Biden (“Feds for Med. Freedom II”), 25 F.4th 354, 355 (5th Cir.
2022) (Higginson, J., dissenting) (“[A] dozen district courts have rejected requests to
enjoin this order.”).
3
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--- F. Supp. 3d ----, 2022 WL 188329, at *2 (S.D. Tex. Jan. 21, 2022).
However, the district court attempted to distinguish those cases as having
fallen victim to “procedural missteps by the plaintiffs or a failure to show
imminent harm.” Id.
The district court rejected the Government’s argument that the Civil
Service Reform Act of 1978 (“CSRA”), 5 U.S.C. § 1101 et seq., deprived it of
jurisdiction. Id. at *2–3. Specifically, it held that the CSRA did not apply
because this case involves a “challenge [to] the mandate pre-enforcement,”
whereas the CSRA contemplates review after an employee suffers an adverse
employment action. Id. The district court also held that some of the plaintiffs
had ripe claims because those who were not seeking exemptions “face[d] an
inevitable firing.” Id. at *3. As to the merits, the district court broke with
every other court to consider the issue and held that the plaintiffs were likely
to show that neither the Constitution nor federal statute authorized
Executive Order 14043. Id. at *4–6. It also found that the plaintiffs were likely
to suffer irreparable harm absent an injunction and that the equities and
public interest favored the plaintiffs. Id. at *4, *7. The district court therefore
enjoined enforcement of Executive Order 14043 nationwide.
The Government appealed. Meanwhile, the Government moved the
district court for a stay of its order, which the district court eventually denied.
While that motion remained pending in the district court, the Government
separately moved this court for a stay. A divided panel carried the
Government’s motion with the case and expedited this appeal. Feds for Med.
Freedom v. Biden (“Feds for Med. Freedom II”), 25 F.4th 354, 355 (5th Cir.
2022).
II. Standard of Review
“This court reviews the grant or denial of a preliminary injunction for
abuse of discretion, with any underlying legal determinations reviewed
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de novo and factual findings for clear error.” Topletz v. Skinner, 7 F.4th 284,
293 (5th Cir. 2021).
III. Discussion
The Government argues that the district court erroneously granted
the plaintiffs preliminary relief from Executive Order 14043. “A preliminary
injunction is an extraordinary remedy.” La Union Del Pueblo Entero v. Fed.
Emergency Mgmt. Agency, 608 F.3d 217, 219 (5th Cir. 2010). A court should
issue one only if the movant establishes the following: “(1) a substantial
likelihood of prevailing on the merits; (2) a substantial threat of irreparable
injury if the injunction is not granted; (3) the threatened injury outweighs any
harm that will result to the non-movant if the injunction is granted; and
(4) the injunction will not disserve the public interest.” Id.
A. Jurisdiction
We first consider the Government’s argument that the CSRA
precluded the district court’s subject matter jurisdiction. “When courts lack
subject matter jurisdiction over a case, they lack the power to adjudicate the
case.” Nat’l Football League Players Ass’n v. Nat’l Football League, 874 F.3d
222, 225 (5th Cir. 2017). Accordingly, this court examines “jurisdiction
whenever subject matter jurisdiction appears ‘fairly in doubt.’” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009)).
i. Background on the CSRA
The CSRA established “the comprehensive and exclusive procedures
for settling work-related controversies between federal civil-service
employees and the federal government.” Rollins v. Marsh, 937 F.2d 134, 139
(5th Cir. 1991). Before 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.” United States
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v. Fausto, 484 U.S. 439, 444 (1988) (quoting S. Rep. No. 95–969, at 3
(1978)). This pre-existing system drew “widespread” criticism, including
that 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,
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.
“Under the [CSRA], certain federal employees may obtain
administrative and judicial review of specified adverse employment actions.”
Elgin v. Dep’t of Treasury, 567 U.S. 1, 5 (2012). “Subchapter II of Chapter 75
governs review of major adverse actions taken against employees ‘for such
cause as will promote the efficiency of the service.’” Id. (quoting 5 U.S.C.
§§ 7503(a), 7513(a)). These provisions apply to employees in the competitive
service and to certain excepted service employees. 2 5 U.S.C. § 7511(a)(1).
They provide procedural protections when eligible employees face major
adverse actions, which includes removals, suspensions for more than
fourteen days, pay or grade reductions, and furloughs lasting thirty days or
less. Id. § 7512.
2
The CSRA provides three general categories of civil service employees: Senior
Executive Service employees, competitive service employees, and excepted service
employees. Elgin, 567 U.S. at 5 n.1. Senior Executive Service employees are high ranking
employees who do not require Presidential appointment or Senate confirmation. Id.
“Competitive service employees . . . are all other Executive Branch employees whose
nomination by the President and confirmation by the Senate are not required and who are
not specifically excepted from the competitive service by statute,” along with certain other
included employees. Id. (alteration omitted) (citing 5 U.S.C. § 2102(a)(1)). Employees
“who are not in the Senior Executive Service or in the competitive service” are excepted
service employees. Id. (citing 5 U.S.C. § 2103(a)).
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The CSRA distinguishes between employees facing “proposed”
adverse action and those who have already suffered adverse action.
See 5 U.S.C. § 7513(b), (d). Employees facing “proposed” action are entitled
to notice, an opportunity to respond, legal representation, and written
reasons supporting the employing agency’s decision. Id. § 7513(b). Once an
employing agency finalizes an adverse action, however, the aggrieved
employee may appeal to the Merit Systems Protection Board (“MSPB”).
Id. § 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.” Elgin, 567 U.S. at 6 (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. at 6. The Federal Circuit’s jurisdiction over such appeals is
“exclusive.” 28 U.S.C. § 1295(a)(9). If an employee appeals to the Federal
Circuit, then 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.” 5 U.S.C.
§ 7703(c)(1)–(3).
This remedial scheme is “elaborate,” establishing “in great detail the
protections and remedies applicable to” adverse personnel actions against
federal employees, “including the availability of administrative and judicial
review.” Fausto, 484 U.S. at 443. The Supreme Court has thus explained
that, “[g]iven the painstaking detail with which the CSRA sets out the
method for covered employees to obtain review of adverse employment
actions, it is fairly discernible that Congress intended to deny such employees
an additional avenue of review in district court.” Elgin, 567 U.S. at 11–12.
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In Elgin, the Court considered an attempt by former federal
employees to “carve out an exception to CSRA exclusivity for facial or as-
applied constitutional challenges to federal statutes.” Id. at 12. In rejecting
that attempt, the Court emphasized 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 CSRA’s purpose—to “creat[e]
an integrated scheme of review”—further confirmed that “the statutory
review scheme is exclusive.” Id. at 13. Thus, the Court concluded 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. This court has also recognized that the
CSRA precludes district court adjudication of federal statutory and
constitutional claims. 3
3
See, e.g., Gremillion v. Chivatero, 749 F.2d 276, 279 (5th Cir. 1985) (dismissing an
IRS employee’s Bivens suit because the employee had access to a comprehensive
administrative remedial system established by the CSRA); Palermo v. Rorex, 806 F.2d 1266,
1270–71 (5th Cir. 1987) (holding that a federal employee cannot seek damages for an
unconstitutional adverse personnel action, even though the administrative review system
would not allow plaintiff complete recovery); Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir.
1991) (holding that a federal employee’s FTCA claims were precluded by the CSRA);
Morales v. Dep’t of the Army, 947 F.2d 766, 769 (5th Cir. 1991) (dismissing an employee’s
suit because all of the employee’s claims were personnel decisions arising out of his
relationship with the federal government and were therefore controlled by Bush v. Lucas,
462 U.S. 367 (1983), and Rollins, 937 F.3d at 139); Grisham v. United States, 103 F.3d 24, 26
(5th Cir. 1997) (holding that a federal employee’s First Amendment and FTCA claims were
precluded by the CSRA); Tubesing v. United States, 810 F.3d 330, 332 (5th Cir. 2016)
(holding that a federal employee’s FTCA claims were precluded by the CSRA); Griener v.
United States, 900 F.3d 700, 702 (5th Cir. 2016) (holding that a part-time federal
employee’s FTCA claim was precluded by the CSRA).
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ii. Application of the CSRA
The Government contends that, under Elgin, the district court
erroneously held that the CSRA does not apply until the plaintiffs suffer an
adverse employment action. It urges that adopting the district court’s logic
would allow federal employees to circumvent the CSRA by filing suit before
their employer disciplines or discharges them, thereby “gut[ting] the
statutory scheme.” This, it argues, would be inconsistent with Congress’s
intent to limit judicial review through the CSRA. See id. at 11. The
Government acknowledges that the Elgin plaintiffs, unlike the current
plaintiffs, had already suffered an adverse employment action—
termination—when they filed suit. But it disputes that Elgin “turned on that
distinction.” Meanwhile, the plaintiffs, like the district court, attempt to
distinguish Elgin and other cases applying the CSRA’s jurisdictional
provisions by arguing that those cases concerned challenges to individual
adverse employment actions.
The CSRA’s “text, structure, and purpose” support the
Government’s position. See id. at 10. Starting with the text and structure, the
CSRA guarantees an MSPB appeal to only “[a]n employee against whom an
action is taken.” 5 U.S.C. § 7513(d). In contrast, “[a]n employee against
whom an action is proposed is entitled to” the protections listed above.
Id. § 7513(b). The Supreme Court recognized as much in Elgin when it
observed that the CSRA offers an employee the right to a hearing before the
MSPB “[i]f the agency takes final adverse action against the employee” and
that the statute separately “sets out the procedures due an employee prior to
final agency action.” Elgin, 567 U.S. at 6, 11. Critically, in this case, any
adverse action against the plaintiffs remains “proposed.” They are thus
entitled to “notice, representation by counsel, an opportunity to respond,
and a written, reasoned decision from the agency” under § 7513(b), not
administrative review under § 7513(d). Id. at 6. In other words, the plaintiffs
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are “employees to whom the CSRA denies statutory review.” Id. at 11
(emphasis in original). Congress intended “to entirely foreclose judicial
review to” such employees. Id.; Griener, 900 F.3d at 703.
This construction is consonant with Congress’s purpose in enacting
the CSRA, which was to establish “an integrated scheme of review.” Elgin,
567 U.S. at 14. As the facts of this case reveal, granting the plaintiffs extra-
statutory review would “seriously undermine[]” that goal. See id. Allegedly,
the plaintiffs who are not pursuing exception requests are “threatened with
imminent discipline unless they give in and get vaccinated.” The district
court concluded that those plaintiffs had ripe claims because they “face an
inevitable firing.” Feds for Med. Freedom I, --- F. Supp. 3d at ----, 2022 WL
188329, at *3. It added that “[m]any of these plaintiffs already have received
letters from their employer agencies suggesting that suspension or
termination is imminent, have received letters of reprimand, or have faced
other negative consequences.” Id. Accordingly, these plaintiffs’
terminations were “actual and imminent, not conjectural or hypothetical.”
Id. (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). That
finding, which the Government does not dispute, underscores that by filing
this suit on the eve of receiving discipline, the plaintiffs seek to circumvent
the CSRA’s exclusive review scheme. Permitting them to do so would
“reintroduce the very potential for inconsistent decisionmaking and
duplicative judicial review that the CSRA was designed to avoid.” Elgin, 567
U.S. at 14. We therefore decline their invitation.
Next, the plaintiffs contend that, even if Congress intended to limit
judicial review through the CSRA, Congress did not intend to limit review of
their claims. Specifically, they suggest that this court should “presume that
Congress [did] not intend to limit jurisdiction” here because (1) “a finding
of preclusion could foreclose all meaningful judicial review,” (2) their suit is
“wholly collateral to [the CSRA’s] review provisions,” and (3) their “claims
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are outside the agency’s expertise.” See Cochran v. U.S. Sec. & Exch.
Comm’n, 20 F.4th 194, 206 (5th Cir. 2021) (en banc) (quotation omitted).
The district court agreed, holding that “[t]o deny the plaintiffs the ability to
challenge the mandate pre-enforcement, in district court, is to deny them
meaningful review.” Feds for Med. Freedom I, --- F. Supp. 3d at ----, 2022 WL
188329, at *3. On appeal, the Government maintains that these arguments
are meritless.
We agree with the Government. The plaintiffs assert that district
court review is necessary because proceeding through the CSRA’s remedial
scheme could foreclose all meaningful review. But the CSRA “merely directs
that judicial review . . . shall occur in the Federal Circuit,” which is “fully
capable of providing meaningful review.” Elgin, 567 U.S. at 10. In Elgin, the
Supreme Court held that “even if [the MSPB] was incapable of adjudicating
a constitutional claim, meaningful judicial review was still available in the
court of appeals.” Cochran, 20 F.4th at 208. That was because the plaintiffs
“sought substantive relief”—reinstatement, backpay, and attorney’s fees—
that “would have . . . fully redressed” the harm they suffered. Id. at 208–09.
In contrast, where a plaintiff asserts a claim for “structural relief” from a
remedial scheme, that scheme will be declared inadequate. Id. at 208 (citing
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 490 (2010)).
The plaintiffs here seek to avoid discipline for failing to comply with
Executive Order 14043. That is a claim for substantive, not structural, relief.
Indeed, the MSPB can order reinstatement and backpay to any nonexempt
plaintiffs who are disciplined for refusing to receive a COVID-19 vaccine.
Elgin, 567 U.S. at 6 (citing 5 U.S.C. §§ 1204(a)(2), 7701(g)). And
“[r]emedies for discharge under the federal civil service laws are . . . an
adequate remedy for individual wrongful discharge after the fact of
discharge.” Garcia v. United States, 680 F.2d 29, 31 (5th Cir. 1982).
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The plaintiffs also argue that the CSRA will deny meaningful review
to any of them who comply with Executive Order 14043 because they will
never suffer an adverse employment action. However, the plaintiffs could
have challenged an agency’s proposed action against them before filing this
suit and certainly before getting vaccinated. Specifically, they could have
filed a complaint with the Office of Special Counsel (“OSC”), an
independent agency, see 5 U.S.C. § 1211, asserting that Executive Order
14043 constitutes a “prohibited personnel practice” affecting a “significant
change in duties, responsibilities, or working conditions.” 4 Id. § 2302(a)(1),
(a)(2)(A)(xii). The CSRA prohibits agencies from taking any “personnel
action” that treats employees “without . . . proper regard for their privacy
and constitutional rights.” Id. §§ 2301(b)(2), 2302(b)(12). If OSC receives a
complaint and determines that a “prohibited personnel practice has
occurred,” it is authorized to report that finding and to petition the MSPB
for corrective action. Id. § 1214(b)(2)(B)–(C). An employee who is harmed
by the MSPB’s disposition of the petition can appeal to the Federal Circuit.
Id. §§ 1214(c), 7703(b)–(c). There is no dispute that the plaintiffs have not
attempted to avail themselves of this potential CSRA remedy, which could
provide meaningful review.
4
Although the CSRA does not define “working conditions,” the district court
concluded that the “term would not encompass a requirement that employees subject
themselves to an unwanted vaccination.” Feds for Med. Freedom I, --- F. Supp. 3d at ----,
2022 WL 188329, at *2 (citing Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333,
367 (D.D.C. 2020)). But, in construing Title VII of the CSRA, the Supreme Court has
stated that the term “‘working conditions’ . . . naturally refers . . . to the ‘circumstances’
or ‘state of affairs’ attendant to one’s performance of a job.” Fort Stewart Schs. v. Fed. Lab.
Rels. Auth., 495 U.S. 641, 645 (1990). Executive Order 14043 qualifies as a significant
change to the circumstances attending the job performance of federal employees. Indeed,
the Order is explicit that whether an employee has received a COVID-19 vaccine affects
“the efficiency of the civil service.” 86 Fed. Reg. at 50,989.
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We also reject the plaintiffs’ argument that their claims are wholly
collateral to the CSRA scheme. “[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. The plaintiffs emphasize that they are not challenging any
individual employment actions or prior discipline, which they say is “water
under the bridge.” Instead, the plaintiffs purportedly request only to have
Executive Order 14043 declared void. But although the plaintiffs are not
attempting to reverse any previous discipline, their challenge “ultimately
[seeks] to avoid compliance with”—and discipline for violating—the Order.
Id. at 207. Put differently, this case is “the vehicle by which they seek to”
avoid imminent “adverse employment action,” which “is precisely the type
of personnel action regularly adjudicated by the MSPB and the Federal
Circuit within the CSRA scheme.” Elgin, 567 U.S. at 22. At bottom, the relief
the plaintiffs seek is, in effect, to avoid discharge for refusing to comply with
Executive Order 14043. This sort of employment-related relief is “precisely
the kind[] of relief that the CSRA empowers the MSPB and the Federal
Circuit to provide.” Id.
Finally, the plaintiffs’ claims do not exceed the MSPB’s expertise. To
show otherwise, the plaintiffs state only that their claims involve
constitutional issues and “questions of administrative law, which the courts
are at no disadvantage in answering.” See Cochran, 20 F.4th at 207–08
(quoting Free Enter. Fund, 561 U.S. at 491). But the Supreme Court has
recognized that “many threshold questions . . . may accompany a
constitutional claim” and that “the MSPB can apply its expertise” to those
questions. Elgin, 567 U.S. at 22. Further, there are often “preliminary
questions unique to the employment context [that could] obviate the need to
address the constitutional challenge.” Id. at 22–23. For example, an
employing agency may only take an adverse action against an employee “for
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such cause as will promote the efficiency of the service.” 5 U.S.C.
§§ 7503(a), 7513(a). If the MSPB, reviewing an employee’s appeal,
determines that the employee suffered adverse action inconsistent with that
requirement, it could order corrective action on that basis and avoid any other
issues. Additionally, “an employee’s appeal may involve other statutory or
constitutional claims that the MSPB routinely considers,” any of which
“might fully dispose of the case” if the employee receives a favorable
decision from the MSPB. Elgin, 567 U.S. at 23. The MSPB thus has expertise
that it can “br[ing] to bear” on the plaintiffs’ claims, and “we see no reason
to conclude that Congress intended to exempt such claims from exclusive
review before the MSPB and the Federal Circuit.” See id.
* * *
We conclude that the 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.
IV. Conclusion
For the foregoing reasons, we VACATE the district court’s
preliminary injunction and REMAND to the district court with instructions
to DISMISS the case.
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Rhesa Hawkins Barksdale, Circuit Judge, dissenting:
My esteemed colleagues hold: The Civil Service Reform Act (CSRA),
5 U.S.C. § 1101 et seq., precludes the district court’s having subject-matter
jurisdiction for this action challenging Executive Order 14043 (EO), which
mandates COVID-19 vaccination for all federal civilian employees. I
respectfully dissent.
I.
In September 2021, President Biden promulgated the EO, mandating
vaccination for federal civilian employees. Pursuant to the EO, “[e]ach
agency shall implement, to the extent consistent with applicable law, a
program to require COVID-19 vaccination for all of its Federal employees,
with exceptions only as required by law”. Exec. Order No. 14043, 86 Fed.
Reg. 50,989 (9 Sept. 2021). President Biden based issuance of the EO on
“the authority vested in [him] as President by the Constitution and the laws
of the United States of America, including sections 3301, 3302, and 7301 of
title 5, United States Code”. Id.
Accordingly, the Safer Federal Workforce Task Force issued agencies
guidance on evaluating religious and medical exceptions to the mandate.
Vaccinations, Safer Federal Workforce,
https://www.saferfederalworkforce.gov/faq/vaccinations/ (last visited 6
April 2022). Non-exempt employees were required to be vaccinated by 22
November 2021 (later postponed to 2022). Id. Non-exempt employees who
fail to get vaccinated or fully disclose vaccination status face disciplinary
procedures, including counseling, suspension, and termination. Id.
On 21 December 2021, Feds for Medical Freedom, a 6,000-member
organization, challenged the EO in federal court, claiming, inter alia, the EO
is a violation of Article I of the Constitution. After plaintiffs’ requested
nationwide preliminary injunction was granted on 21 January 2022, the
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Government appealed and moved for a stay pending appeal. Our court
ordered the motion carried with the case and expedited the appeal. Feds for
Med. Freedom v. Biden, 25 F.4th 354, 355 (5th Cir. 2022). Oral argument was
held on 8 March.
II.
CSRA, enacted in 1978, “comprehensively overhauled the civil
service system creating an elaborate new framework for evaluating adverse
personnel actions against [federal employees]”. United States v. Fausto, 484
U.S. 439, 443 (1988) (alteration in original) (citation omitted). Prior to
CSRA’s enactment, review of personnel actions was “haphazard”,
“lengthy”, and “outdated” to the point that “managers [in the civil service]
often avoid[ed] taking disciplinary action against employees even when it was
clearly warranted”. Id. at 444–45 (alteration in original) (citation omitted).
Congress responded with CSRA, which created “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.
Title 5 of the United States Code governs Government Organization
and Employees and contains CSRA. Part III, 5 U.S.C. § 2101 et seq., governs
Employees, and Subpart F of Part III, 5 U.S.C. § 7101 et seq., covers Labor-
Management and Employee Relations. As discussed in Fausto, three sections
within CSRA govern “personnel actions”: Chapter 43, 5 U.S.C. §4301 et
seq., “governs personnel actions based on unacceptable job performance”;
Chapter 23, 5 U.S.C. § 2301 et seq., “establishes the principles of the merit
system of employment”; and Chapter 75, 5 U.S.C. § 7501 et. seq., “governs
adverse action taken against employees for the efficiency of the service”.
Fausto, 484 U.S. at 446–47 (citation omitted).
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Chapter 75, in Subpart F, includes, inter alia, adverse actions:
suspension for 14 days or less; removal; suspension for more than 14 days;
reduction in grade or pay; and furlough for 30 days or less. 5 U.S.C. §§ 7501–
43. Along that line, Subchapters 1, 2, and 5 include an “actions covered”
section. 5 U.S.C. §§ 7502, 7512, 7542. Chapter 75 Subchapter 2, 5 U.S.C.
§§ 7511–15, is pertinent to this case. It “governs . . . major adverse actions
taken against employees”. Elgin v. Dep’t of Treasury, 567 U.S. 1, 5 (2012).
The covered adverse actions are: removal; suspension for more than 14 days;
reduction in grade or pay; and furlough for 30 days or less. 5 U.S.C. § 7512.
The EO’s enactment, however, 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. Relief plaintiffs seek does not fall within the purpose of
CSRA. Enacting the EO and then requiring federal civilian employees who
may later receive adverse action to seek relief now through CSRA would
result in the very type of lengthy and haphazard results CSRA was enacted
to prevent.
Seeking to rely upon Elgin—the primary opinion by which the
majority attempts to find supporting authority—the majority holds at 9:
CSRA’s “text, structure, and purpose” support the Government’s position.
But, as noted by the majority at 9, plaintiffs in Elgin had already received
adverse action (termination) when they filed suit. Elgin, 567 U.S. at 7.
Further, plaintiffs in Elgin were terminated for violating the Military
Selective Service Act, requiring certain male citizens to register for the
Selective Service. Id. at 6–7. Elgin, therefore, pertains only to plaintiffs
whose employment was terminated after they knowingly violated a statute,
whereas here, plaintiffs have not received adverse action, but are instead
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being told they could be, inter alia, terminated if they do not get vaccinated
as required by the EO.
The majority at 9 also states: In Elgin, the Court recognized that
employees “against whom an action is proposed” still fall under CSRA,
focusing on the language that it, “sets out the procedures due an employee
prior to final agency action”. Elgin, 567 U.S. at 11 (citing 5 U.S.C. § 7513).
But, the Court in Elgin also noted: “When an employing agency proposes a
covered action against a covered employee, . . . CSRA gives the employee the
right to notice, representation by counsel, an opportunity to respond, and a
written reasoned decision from the agency”. Id. at 6 (emphasis added)
(citing 5 U.S.C. § 7513(b)).
Section 7513 does not apply to plaintiffs. First, it applies to federal
employees facing proposed actions by “an employing agency”. 5 U.S.C.
§ 7513. CSRA’s language, which the majority references at 9, also refers to
action taken by an “agency”. See id. Here, there is no agency action. Rather,
the President is attempting to impose a sweeping mandate against the federal
civilian workforce. Again, no adverse action has been proposed or taken by
an agency. In short, Elgin does not control the case at hand.
Section 7513 references individual employees; here, the President
seeks to require an entire class of employees to be vaccinated or be subject to
an adverse action. Simply put, CSRA does not cover pre-enforcement
employment actions, especially concerning 2.1 million federal civilian
employees. The district court, therefore, had subject-matter jurisdiction to
hear plaintiffs’ claims.
III.
For the foregoing reasons, I respectfully dissent.
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