Feds for Medical Freedom v. Biden

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

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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.

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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 revi

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