Petition for Writ of Certiorari — Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Feds for Medical Freedom, et al.

Supreme Court briefJul 21, 2023

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No.

In the Supreme Court of the United States

JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED

STATES, ET AL., PETITIONERS

FEDS FOR MEDICAL FREEDOM, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

BRIAN H. FLETCHER

Deputy Solicitor General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

CHARLES W. SCARBOROUGH

SARAH CARROLL

CASEN B. ROSS

DANIEL WINIK

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

In 2021, the President issued an executive order requiring employees of the Executive Branch to be vaccinated against COVID-19 as a condition of their employment, subject to religious and medical exemptions.

In the decision below, the en banc Fifth Circuit held

that respondents could challenge that requirement in

district court notwithstanding the provisions of the Civil

Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.

1111, channeling federal employees’ challenges to adverse personnel actions to the Merit Systems Protection Board, subject to review by the Federal Circuit.

The Fifth Circuit also affirmed a preliminary injunction

forbidding the government from enforcing the vaccination requirement against any federal employee nationwide. Roughly six weeks after the Fifth Circuit issued

its decision, the President revoked the executive order

at issue in this case as part of a broader wind-down of

COVID-19 emergency policies based on changed publichealth conditions. The question presented is as follows:

Whether, pursuant to United States v. Munsingwear,

Inc., 340 U.S. 36 (1950), this Court should vacate the

court of appeals’ judgment and remand with instructions to direct the district court to vacate its order

granting a preliminary injunction as moot.

(I)

PARTIES TO THE PROCEEDING

Petitioners (defendants-appellants below) are Joseph R. Biden, Jr., in his official capacity as President

of the United States; Antony Blinken, in his official capacity as Secretary of State; Janet Yellen, in her official

capacity as Secretary of the Treasury; Lloyd J. Austin

III, in his official capacity as Secretary of Defense; Merrick B. Garland, in his official capacity as Attorney General; Debra A. Haaland, in her official capacity as Secretary of the Interior; Tom Vilsack, in his official capacity as Secretary of Agriculture; Gina M. Raimondo, in

her official capacity as Secretary of Commerce; Julie A.

Su, in her official capacity as Acting Secretary of Labor;

Marcia Fudge, in her official capacity as Secretary of

Housing and Urban Development; Pete Buttigieg, in his

official capacity as Secretary of Transportation; Jennifer M. Granholm, in her official capacity as Secretary

of Energy; Denis McDonough, in his official capacity as

Secretary of Veterans Affairs; Alejandro N. Mayorkas,

in his official capacity as Secretary of Homeland Security; William J. Burns, in his official capacity as Director of the Central Intelligence Agency; Bill Nelson, in

his official capacity as Administrator of the National

Aeronautics and Space Administration; Kilolo Kijakazi,

in her official capacity as Acting Commissioner of Social

Security; Samantha Power, in her official capacity as

Administrator of the United States Agency for International Development; Shalanda D. Young, in her official

capacity as Director of the Office of Management and

Budget; Avril Haines, in her official capacity as Director of National Intelligence; Daniel Hokanson, in his official capacity as Chief of the National Guard Bureau;

Robin Carnahan, in her official capacities as Administrator of the General Services Administration and CoChair of the Safer Federal Workforce Task Force;

(II)

III

Kiran Ahuja, in her official capacities as Director of the

Office of Personnel Management and Co-Chair of the

Safer Federal Workforce Task Force; Lesley A. Field,

in her official capacity as a member of the Federal Acquisition Regulatory Council; Matthew C. Blum, in his

official capacity as a member of the Federal Acquisition

Regulatory Council; Jeffrey A. Koses, in his official capacity as a member of the Federal Acquisition Regulatory Council; John M. Tenaglia, in his official capacity

as a member of the Federal Acquisition Regulatory

Council; Karla S. Jackson, in her official capacity as a

member of the Federal Acquisition Regulatory Council;

the United States of America; the United States

Department of State; the United States Department of

the Treasury; the United States Department of Defense; the United States Department of Justice; the

United States Department of the Interior; the United

States Department of Agriculture; the United States

Department of Commerce; the United States Department of Labor; the United States Department of Housing and Urban Development; the United States Department of Transportation; the United States Department

of Energy; the United States Department of Veterans

Affairs; the United States Department of Homeland Security; the Central Intelligence Agency; the National

Aeronautics and Space Administration; the Social Security Administration; the United States Agency for International Development; the General Services Administration; the Office of the Director of National Intelligence; the Office of Personnel Management; the Office

of Management and Budget; the National Guard Bureau; the Safer Federal Workforce Task Force; and the

Federal Acquisition Regulatory Council.* Jeffrey

Zients was named as a defendant below in his official

capacity as Co-Chair of the Safer Federal Workforce

Task Force; during the pendency of the litigation,

Zients vacated that office and was succeeded by Ashish

Jha, who has also now vacated the position.

Respondents (plaintiffs-appellees below) are Feds

for Medical Freedom; Local 918, American Federation

of Government Employees; Highland Engineering,

Inc.; Raymond A. Beebe, Jr.; John Armbrust; N. Anne

Atkinson; Julia Badger; Michael Ball; Craigan Biggs;

Laura Brunstetter; Mark Canales; Michele Caramenico; Andrew Chamberland; David Clark; Diane

Countryman; Kevin Dantuma; Jose Delgado; Jordan

DeManss; George Demetriou; Keri Divilbiss; Mercer

Dunn IV; William Filkins; Jonathan Gragg; Bryon

Green; Thomas David Green; Erika Herbert; Peter

Hennemann; Neil Horn; Carey Hunter-Andrews; Tana

Johnston; Tyler Klosterman; Deborah Lawson; Danie

Lewis; Melissa Magill; Kendra Ann Marceau; Dalia Matos; Stephen May; Steven McComis; Christopher Miller; Joshua Moore; Brent Moores; Jesse Neugebauer;

Joshua Nicely; Leslie Carl Petersen; Patti Rivera;

Joshua Roberts; Ashley Rodman; M. LeeAnne RuckerReed; Trevor Rutledge; Nevada Ryan; James Charles

Sams III; Michael Schaecher; Christina Schaff; Kurtis

Simpson; Barrett Smith; Jace ReNee Smith; Jarod

Smith; Jana Spruce; John Tordai; Sandor Vigh; Christina Vrtaric; Pamela Weichel; David Wentz; Jason

Wilkerson; Patrick Wright; and Patrick Mendoza York.

* Acting Secretary Su is substituted for her predecessor in office,

Marty Walsh, pursuant to Rule 35.3 of the Rules of this Court.

RELATED PROCEEDINGS

United States District Court (S.D. Tex.):

Feds for Medical Freedom v. Biden, No. 21-cv-356

(Jan. 21, 2022)

United States Court of Appeals (5th Cir.):

Feds for Medical Freedom v. Biden, No. 22-40043

(Mar. 23, 2023)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory provisions involved ...................................................... 2

Statement:

A. Civil service background ................................................. 2

B. Executive Order 14,043 ................................................... 5

C. The present controversy ................................................. 7

D. Subsequent developments ............................................ 10

Reasons for granting the petition ............................................. 12

A. This appeal is moot ........................................................ 13

B. The decision below would have warranted review ..... 16

C. Vacatur is appropriate under Munsingwear .............. 25

Conclusion ................................................................................... 29

Appendix A — Court of appeals en banc opinion

(Mar. 23, 2023) ............................................. 1a

Appendix B — Court of appeals panel opinion

(Apr. 7, 2022) ............................................ 103a

Appendix C — Court of appeals stay motion opinion

(Feb. 9, 2022)............................................ 124a

Appendix D — District court order denying stay

(Feb. 11, 2022).......................................... 138a

Appendix E — District court memorandum opinion and

order (Jan. 21, 2022) ................................ 140a

Appendix F — Court of appeals order granting en banc

rehearing (June 27, 2022) ....................... 158a

Appendix G — Statutory provisions:

5 U.S.C. 3301 ............................................ 160a

5 U.S.C. 3302 ............................................ 160a

5 U.S.C. 7301 ............................................ 161a

(VII)

VIII

TABLE OF AUTHORITIES

Cases:

Page

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ...... 13, 14, 16

Alvarez v. Smith, 558 U.S. 87 (2009) ................................... 27

American Fed’n of Gov’t Emps. Local 2018 v. Biden,

598 F. Supp. 3d 241 (E.D. Pa. 2022) .................................. 19

American Fed’n of Gov’t Emps. Local 2586 v. Biden,

616 F. Supp. 3d 1275 (W.D. Okla. 2022) ........................... 18

Arizona v. Mayorkas, 143 S. Ct. 1312 (2023) ..................... 15

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ............................................................... 13

Azar v. Garza, 138 S. Ct. 1790 (2018) .................................. 26

Brass v. Biden, No. 21-cv-2778, 2022 WL 11732833

(D. Colo. Oct. 20, 2022) ....................................................... 18

Camreta v. Greene, 563 U.S. 692 (2011) .............................. 16

City News & Novelty, Inc. v. City of Waukesha,

531 U.S. 278 (2001).............................................................. 14

DHS v. New York, 140 S. Ct. 599 (2020) ............................. 25

Donovan v. Vance, 70 F.4th 1167 (9th Cir. 2023) ............... 15

Elgin v. Department of the Treasury,

567 U.S. 1 (2012) ............................................ 4, 10, 18, 20-22

Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005)................. 21

Free Enter. Fund v. Public Co. Accounting

Oversight Bd., 561 U.S. 477 (2010) ...................................... 2

Health Freedom Def. Fund v. President of the

United States, No. 22-11287, 2023 WL 4115990

(11th Cir. June 22, 2023) .................................................... 16

Hollis v. Biden, No. 21-60910, 2023 WL 3593251

(5th Cir. May 18, 2023) ....................................................... 16

Livingston Educ. Serv. Agency v. Becerra,

No. 22-1257, 2023 WL 4249469

(6th Cir. June 29, 2023) ...................................................... 15

Cases—Continued:

Page

Mayorkas v. Innovation Law Lab,

141 S. Ct. 2842 (2021) ................................................... 12, 28

Missouri v. Biden, No. 22-1104, 2023 WL 3862561

(8th Cir. June 7, 2023) ........................................................ 16

NFIB v. OSHA, 142 S. Ct. 661 (2022) ........................... 23, 24

Payne v. Biden:

602 F. Supp. 3d 147 (D.D.C. 2022), aff ’d,

62 F.4th 598 (D.C. Cir. 2023), petition for cert.

pending, No. 22-1225 (filed June 16, 2023) .............. 22

62 F.4th 598 (D.C. Cir. 2023), petition for

cert. pending, No. 22-1225

(filed June 16, 2023) ....................................... 12, 17, 18

Rydie v. Biden, No. 21-2359, 2022 WL 1153249

(4th Cir. Apr. 19, 2022) ....................................................... 18

Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) .................. 2

Trump v. Hawaii, 138 S. Ct. 2392 (2018) ............................ 25

Trump v. International Refugee Assistance,

138 S. Ct. 353 (2017) ........................................................... 28

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

513 U.S. 18 (1994) ......................................................... 26, 27

United States v. Fausto, 484 U.S. 439 (1988) ........... 4, 10, 20

United States v. Microsoft Corp.,

138 S. Ct. 1186 (2018) ......................................................... 27

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) ........................................12, 15, 16, 26, 29

United States v. Sanchez-Gomez,

138 S. Ct. 1532 (2018) ......................................................... 13

United States v. Texas, 143 S. Ct. 1964 (2023) ................... 25

Yellen v. United States House of Representatives,

142 S. Ct. 332 (2021) ........................................................... 28

Constitution, statutes, regulations, and rules:

U.S. Const.:

Art. II ................................................................................. 9

§ 1, Cl. 1 ........................................................................ 2

§ 3 ................................................................................. 2

Art. III .................................................................. 13, 14, 25

§ 2, Cl. 1 ...................................................................... 13

Act of Mar. 3, 1871, ch. 114, § 9, 16 Stat. 514-515 ................. 3

Act of Apr. 10, 2023, Pub. L. No. 118-3, 137 Stat. 6 ........... 11

Civil Service Reform Act of 1978,

Pub. L. No. 95-454, 92 Stat. 1111 ........................................ 3

5 U.S.C. 3132(a)(2)............................................................. 3

5 U.S.C. 7511-7515........................................................... 18

5 U.S.C. 7512 ...................................................................... 4

5 U.S.C. 7513(a) ................................................................. 3

5 U.S.C. 7513(d) ................................................................. 4

5 U.S.C. 7543(a) ................................................................. 3

5 U.S.C. 7701(a)(1)-(2) ....................................................... 4

5 U.S.C. 7703(b) ................................................................. 4

5 U.S.C. 2102(a)(1) ................................................................... 3

5 U.S.C. 2103(a) ....................................................................... 3

5 U.S.C. 3301 .......................................................5, 22, 24, 160a

5 U.S.C. 3301(1) ....................................................... 2, 24, 160a

5 U.S.C. 3301(2) ....................................................... 2, 24, 160a

5 U.S.C. 3302 ........................................................ 2, 5, 22, 160a

5 U.S.C. 3302(1) ............................................................. 3, 160a

5 U.S.C. 3328 .......................................................................... 21

5 U.S.C. 7301 ................................................... 3, 5, 22-24, 161a

28 U.S.C. 1295(a)(9) ................................................................. 4

41 U.S.C. 3301 ........................................................................ 24

Exec. Order No. 12,564, § 1(b), 3 C.F.R. 225

(1986 Comp.).......................................................................... 3

Statutes, regulations, and rules—Continued:

Page

Exec. Order No. 12,674, 3 C.F.R. 215 (1990 Comp.) ............ 3

Exec. Order No. 13,991, § 4, 86 Fed. Reg. 7045, 7046

(Jan. 25, 2021) ........................................................................ 6

Exec. Order No. 14,043, 86 Fed. Reg. 50,989

(Sept. 14, 2021):

Pmbl., 86 Fed. Reg. 50,989 ............................................. 24

§ 1, 86 Fed. Reg. 50,989 .................................................... 5

§ 2, 86 Fed. Reg. 50,990 ................................................ 5, 6

Exec. Order No. 14,099, 88 Fed. Reg. 30,891

(May 15, 2023):

§ 1, 88 Fed. Reg. 30,891 ...................................... 11, 15, 16

§ 2, 88 Fed. Reg. 30,891 .................................................. 11

§ 3, 88 Fed. Reg. 30,891 .................................................. 11

Fed. R. App. P. 41(b) ............................................................... 8

Sup. Ct. R. 10(a) ..................................................................... 19

Miscellaneous:

CDC, COVID Data Tracker, go.usa.gov/xeFyx ................... 5

88 Fed. Reg. 9385 (Feb. 14, 2023) ........................................ 11

Pandemic Response Accountability Comm.,

Top Challenges Facing Federal Agencies:

COVID-19 Emergency Relief and Response Efforts

(June 2020) ............................................................................ 6

Stephen M. Shapiro et al., Supreme Court Practice

(11th ed. 2019) ..................................................................... 17

The White House, White House Report: Vaccination

Requirements Are Helping Vaccinate More People, Protect Americans from COVID-19, and

Strengthen the Economy (Oct. 7, 2021) .............................. 6

In the Supreme Court of the United States

No.

JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED

STATES, ET AL., PETITIONERS

FEDS FOR MEDICAL FREEDOM, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of Joseph R. Biden,

Jr., President of the United States, et al., respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the en banc court of appeals (App., infra, 1a-102a) is reported at 63 F.4th 366. An earlier

panel opinion (App., infra, 103a-123a) is reported at 30

F.4th 503. The court of appeals’ order regarding a stay

pending appeal (App., infra, 124a-137a) is unreported.

The opinion of the district court (App., infra, 140a-157a)

is reported at 581 F. Supp. 3d 826.

JURISDICTION

The judgment of the en banc court of appeals was entered on March 23, 2023. On June 9, 2023, Justice Alito

(1)

extended the time within which to file a petition for a

writ of certiorari to and including July 21, 2023. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are set forth in the

appendix to this petition. App., infra, 160a-161a.

STATEMENT

A. Civil Service Background

1. The President is responsible for superintending

the federal workforce. “Under our Constitution, the

‘executive Power’—all of it—is ‘vested in a President,’

who must ‘take Care that the Laws be faithfully executed.’ ” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191

(2020) (quoting U.S. Const. Art. II, § 1, Cl. 1; id. § 3).

The President’s powers include “the general administrative control of those executing the laws.” Free Enter.

Fund v. Public Co. Accounting Oversight Bd., 561 U.S.

477, 492 (2010) (citation omitted).

Consistent with the President’s constitutional role as

“Chief Executive,” Free Enter. Fund, 561 U.S. at 493

(citation omitted), Congress has authorized him to “prescribe such regulations for the admission of individuals

into the civil service in the executive branch as will best

promote the efficiency of that service” and to “ascertain

the fitness of applicants,” including specifically their

“health.” 5 U.S.C. 3301(1) and (2). Congress has also

authorized the President to establish “rules governing

the competitive service,” 5 U.S.C. 3302, as well as

exceptions to competitive hiring, i.e., rules for the excepted service, 5 U.S.C. 3302(1). 1

In addition to his authority over the admission of new

employees into federal service, the President has long

had express statutory authority to “prescribe regulations for the conduct of employees in the executive

branch.” 5 U.S.C. 7301; see Act of Mar. 3, 1871, ch. 114,

§ 9, 16 Stat. 514-515. Presidents have relied on that authority to establish a wide array of rules for federal employees. In 1986, for example, President Reagan invoked Section 7301 to require drug-testing for sensitive

positions in the civil service after he determined that

any use of illegal drugs, “whether on duty or off duty, is

contrary to the efficiency of the service.” Exec. Order

No. 12,564, § 1(b), 3 C.F.R. 224, 225 (1986 Comp.). Presidents have also issued several executive orders, including most recently in 1989, establishing ethics rules for

federal employees based in part on Section 7301 or its

predecessors. See, e.g., Exec. Order No. 12,674, 3 C.F.R.

215 (1990 Comp.).

2. An employee in the competitive or excepted service generally may be removed for “such cause as will

promote the efficiency of the service.” 5 U.S.C. 7513(a);

cf. 5 U.S.C. 7543(a) (Senior Executive Service). Under

the Civil Service Reform Act of 1978 (CSRA), Pub.

L. No. 95-454, 92 Stat. 1111, specified non-probationary

employees in the competitive or excepted service have

Federal civilian employees are classified into three main categories: the “Senior Executive Service,” which is a relatively small cadre of high-level employees, 5 U.S.C. 3132(a)(2); the “competitive

service,” which consists of other “civil service positions in the executive branch” not exempted from competitive-hiring requirements,

5 U.S.C. 2102(a)(1); and the “excepted service,” covering positions

not in the first two categories, 5 U.S.C. 2103(a).

a “right to notice, representation by counsel, an opportunity to respond, and a written, reasoned decision from

the agency” before any removal. Elgin v. Department

of the Treasury, 567 U.S. 1, 6 (2012). If the agency proposes to remove a covered employee or take any of the

other adverse personnel actions specified in 5 U.S.C.

7512, such as a suspension of more than 14 days, “the

CSRA gives the employee the right to a hearing * * *

before the Merit Systems Protection Board (MSPB).”

Elgin, 567 U.S. at 6 (citing 5 U.S.C. 7513(d), 7701(a)(1)(2)). The MSPB is an adjudicative agency with the authority to “order relief to prevailing employees, including reinstatement, backpay, and attorney’s fees.” Ibid.

The Federal Circuit, in turn, has “exclusive jurisdiction” over appeals from the MSPB’s decisions, 28 U.S.C.

1295(a)(9), except in certain cases involving discrimination claims, see 5 U.S.C. 7703(b).

The procedures established by the CSRA for review

of covered personnel actions are comprehensive and exclusive. This Court has held that if Congress declined

to extend the CSRA’s “integrated scheme of administrative and judicial review” to a particular class of federal employees, United States v. Fausto, 484 U.S. 439,

445 (1988), those employees do not have a “statutory entitlement” to judicial review in any forum “for adverse

action of the type governed by” the CSRA, id. at 448449. And “[ j]ust as the CSRA’s ‘elaborate’ framework

demonstrates Congress’s intent to entirely foreclose judicial review to employees to whom the CSRA denies

statutory review, it similarly indicates that extrastatutory review is not available to those employees to whom

the CSRA grants administrative and judicial review.”

Elgin, 567 U.S. at 11 (citation omitted).

B. Executive Order 14,043

This case concerns an executive order issued by the

President during the throes of the COVID-19 pandemic.

On September 9, 2021, after the Food and Drug Administration approved the first COVID-19 vaccine, the

President ordered each agency in the Executive Branch

to “implement, to the extent consistent with applicable

law, a program to require COVID-19 vaccination for all

of its Federal employees.” Exec. Order No. 14,043 (EO

14,043), § 2, 86 Fed. Reg. 50,989, 50,990 (Sept. 14, 2021).

The order directed agencies to provide for exceptions

“as required by law,” ibid., including on the basis of

medical conditions or sincerely held religious beliefs.

The order rested on and invoked the President’s

constitutional and statutory authority to manage the civilian workforce, including 5 U.S.C. 3301, 3302, and

7301. The President explained that “[t]he health and

safety of the Federal workforce, and the health and

safety of members of the public with whom they interact, are foundational to the efficiency of the civil service.” EO 14,043, § 1, 86 Fed. Reg. at 50,989. He also

noted that, according to the Centers for Disease Control and Prevention (CDC), vaccination was the single

“best way to slow the spread of COVID-19” and to prevent infection from the then-prevalent Delta variant.

Ibid. Accordingly, the President determined that requiring “COVID-19 vaccination for all Federal employees” was necessary “to promote the health and safety of

the Federal workforce and the efficiency of the civil service.” Ibid.

At that time, thousands of Americans were dying

from COVID-19 each week. See CDC, COVID Data

Tracker, go.usa.gov/xeFyx. Millions of Americans were

missing work “because they had COVID-19 or were

caring for someone with COVID-19.” The White House,

White House Report: Vaccination Requirements Are

Helping Vaccinate More People, Protect Americans

from COVID-19, and Strengthen the Economy 4 (Oct. 7,

2021) (Vaccination Report). The federal government,

like other employers, was forced to significantly alter

its operations in response to the pandemic—reducing

in-person work, limiting official travel, and taking other

precautions to reduce the risk that employees would

contract COVID-19, or transmit the disease to others,

while carrying out their official duties and functions.

See, e.g., Pandemic Response Accountability Comm.,

Top Challenges Facing Federal Agencies: COVID-19

Emergency Relief and Response Efforts 8-9, 25, 45

(June 2020). Numerous private-sector businesses—

including major employers like United Airlines, Tyson

Foods, AT&T, Bank of America, and CVS—likewise responded to the pandemic by requiring their employees

to be vaccinated. See Vaccination Report 9, 12.

The President directed the Safer Federal Workforce

Task Force to issue guidance to implement the vaccination requirement. EO 14,043, § 2, 86 Fed. Reg. at 50,990;

see Exec. Order No. 13,991, § 4, 86 Fed. Reg. 7045, 7046

(Jan. 25, 2021) (earlier order establishing the Task

Force). The Task Force issued guidance confirming the

availability of medical and religious accommodations

and providing a timeline for compliance. The guidance

set an initial deadline in November 2021 for non-exempt

employees to be fully vaccinated, though that deadline

was “later postponed * * * to early 2022.” App., infra,

105a. The guidance also instructed agencies to use progressive discipline, under which employees who failed

to comply would first receive counseling and education

followed by sanctions of “escalating” severity, including

reprimands, suspension, and termination. Ibid.

C. The Present Controversy

1. This suit is a challenge to EO 14,043 filed in the

U.S. District Court for the Southern District of Texas

in December 2021. The plaintiffs, respondents here, are

a recently formed membership organization known as

Feds for Medical Freedom, along with a local union

chapter, a federal contractor, and dozens of individual

federal employees. See Compl. ¶¶ 11-76.2 Respondents

alleged that several of the employee plaintiffs had declined to comply with the vaccination requirement and

had been “disciplined with written reprimands and

warnings” and, in one instance, notice that the plaintiff

would be terminated in January 2022. Compl. ¶ 147.

The gravamen of respondents’ challenge was that the

requirement for federal employees to be vaccinated

against COVID-19 as a condition of employment was

“ultra vires.” Compl. ¶ 164.

2. On January 21, 2022, the district court entered a

preliminary injunction forbidding the federal government from implementing or enforcing EO 14,043

against any federal employee nationwide. App., infra,

140a-157a. The court rejected the government’s argument that the CSRA precluded respondents from bringing a pre-enforcement challenge to the vaccination requirement in district court. Id. at 143a-145a. The court

reasoned that the CSRA’s provisions for review by the

The individual plaintiffs included some employees of federal contractors, and respondents also challenged a separate executive order regarding COVID-19 safety protocols for federal contractors.

That order is not at issue here. See App., infra, 141a-142a (district

court’s order declining to address the contractor executive order in

light of developments in other litigation).

MSPB and the Federal Circuit apply to “actual discipline,” id. at 144a, and have no preclusive effect when

employees preemptively challenge “government-wide

policies” before suffering any such discipline, id. at 145a

n.3. On the merits, the court concluded that respondents were likely to succeed in showing that the President’s authority to prescribe regulations for the conduct

of federal employees permitted him to regulate only

“workplace conduct,” and that the vaccination requirement exceeded that authority. Id. at 151a.

In the single paragraph of its opinion devoted to the

scope of the injunction, the district court stated that

Feds for Medical Freedom “has more than 6,000 members spread across every state * * * and is actively adding new members,” such that relief limited to the parties would be “ ‘unwieldy.’ ” App., infra, 156a (citation

omitted). The court declined to stay its injunction pending appeal. Id. at 138a-139a.

3. The government moved for a stay pending appeal

in the Fifth Circuit. A divided motions panel declined

to grant a stay, determining that the government’s motion should be carried with the case for disposition by a

merits panel. App., infra, 124a-137a. A divided merits

panel then vacated the preliminary injunction and remanded to the district court with instructions to dismiss

the case for lack of jurisdiction based on the CSRA. Id.

at 103a-123a. Respondents sought rehearing, which delayed issuance of the mandate and thus kept the preliminary injunction in effect. See Fed. R. App. P. 41(b). In

June 2022, the court of appeals granted rehearing en

banc. App., infra, 158a-159a.

The en banc court of appeals ultimately affirmed the

preliminary injunction, with seven judges dissenting in

whole or part. App., infra, 1a-102a. The majority held

that the CSRA did not preclude the district court from

exercising jurisdiction over respondents’ challenge. Id.

at 3a-4a. The majority acknowledged that “the CSRA

eliminates [28 U.S.C.] 1331 jurisdiction” when a federal

employee seeks to challenge a “personnel action[] covered by the CSRA,” such as a termination. Id. at 8a. In

the majority’s view, however, the CSRA did not preclude respondents from preemptively challenging the

vaccination requirement in district court on the theory

that the requirement was not itself a “CSRA-covered

personnel action.” Id. at 14a. The majority also stated

that any future adverse personnel actions for refusing

to comply with the vaccination requirement were

merely “hypothetical” and were therefore irrelevant to

the jurisdictional question. Id. at 19a.

The en banc majority addressed the CSRA issue at

length. See App., infra, 3a-39a. With respect to the

merits, however, the majority stated only that it “substantially agree[d]” with the district court’s reasoning

and that it was “unpersuaded” by the government’s arguments on appeal. Id. at 40a. The majority also stated

that the district court did not abuse its discretion in extending the injunction to every federal employee nationwide. Id. at 41a.

Judge Ho, joined by Judge Jones, concurred in the

judgment but wrote separately to express the view that

statutory limits on the President’s authority to remove

civilian employees violate Article II—an issue he found

not squarely presented here. App., infra, 45a-52a.

Judge Haynes concurred in the judgment in part and

dissented in part. App., infra, 53a-56a. She largely

agreed with the majority but would have limited the

scope of the injunction to the parties. See id. at 56a.

Judge Higginson, joined by Judge Southwick, concurred in part and dissented in part. App., infra, 57a97a. In his view, the majority had failed to appreciate

that the “whole point of this lawsuit is to challenge

CSRA-covered personnel actions.” Id. at 75a. Judge

Higginson also criticized the majority for creating a

“loophole,” id. at 77a n.10, under which employees who

wish to avoid the CSRA review scheme may instead sue

in district court before suffering any adverse personnel

action, stating that such an understanding of CSRA preclusion “would let plaintiffs end run” this Court’s precedent, id. at 78a (discussing Elgin, 567 U.S. at 7, and

Fausto, 484 U.S. at 441). Although Judge Higginson

would have recognized an exception permitting districtcourt jurisdiction over some of respondents’ constitutional claims, id. at 80a-81a, he would have held that

those claims lack merit, id. at 88a-97a.

Judge Stewart, joined by Chief Judge Richman and

Judges Dennis and Graves, dissented. App., infra, 98a102a. For the reasons given by the merits panel, those

judges would have held that the CSRA entirely “precludes district court review” of challenges to EO 14,043.

Id. at 98a.3

D. Subsequent Developments

The en banc court of appeals entered judgment on

March 23, 2023. App., infra, 1a. On April 10, 2023, the

President signed into law a joint resolution enacted by

Congress to terminate the national emergency

The district court had held the case in abeyance pending the government’s appeal. After the Fifth Circuit’s decision, respondents

moved to reopen the litigation and for entry of summary judgment

and a permanent injunction. See D. Ct. Doc. 49, at 1 (May 12, 2023).

The district court has not yet acted on that motion.

concerning COVID-19. Act of Apr. 10, 2023, Pub. L. No.

118-3, 137 Stat. 6; see 88 Fed. Reg. 9385, 9385 (Feb. 14,

2023). In the following weeks, the government took a

number of steps to wind down emergency measures that

had been put into place to address the acute phase of

the pandemic.

As particularly relevant here, the President revoked

EO 14,043—the order at issue in this case—on May 9,

2023. See Exec. Order No. 14,099 (EO 14,099), § 2, 88

Fed. Reg. 30,891, 30,891 (May 15, 2023). In doing so,

the President explained that he had issued EO 14,043

“when the highly contagious B.1.617.2 (Delta) variant

was the predominant variant of the virus in the United

States and had led to a rapid rise in cases and hospitalizations.” Id. § 1, 88 Fed. Reg. at 30,891. He further

explained that the government had “achieved a 98 percent” rate of compliance with EO 14,043 and that more

than 270 million Americans had become vaccinated in

“the largest adult vaccination program in the history of

the United States.” Ibid. The President also noted

that, since he had issued EO 14,043 in September 2021,

“COVID-19 deaths ha[d] declined by 93 percent, and

new COVID-19 hospitalizations ha[d] declined by 86

percent.” Ibid. Citing that progress, the President determined that “we no longer need a Government-wide

vaccination requirement for Federal employees.” Ibid.

The President accordingly revoked EO 14,043 and

directed that “[a]gency policies adopted to implement

[EO 14,043], to the extent such policies are premised

on” that order, “no longer may be enforced and shall be

rescinded consistent with applicable law.” EO 14,099,

§ 2, 88 Fed. Reg. at 30,891. The revocation of EO 14,043

took effect on May 12, 2023. Id. § 3, 88 Fed. Reg. at

30,891.

REASONS FOR GRANTING THE PETITION

The Fifth Circuit wrongly held that respondents may

circumvent the comprehensive and exclusive scheme of

administrative and judicial review established by the

Civil Service Reform Act (CSRA) by preemptively suing in district court. The Fifth Circuit then compounded its jurisdictional error by upholding a nationwide preliminary injunction forbidding the government

from implementing EO 14,043. The Fifth Circuit gave

virtually no justification for that extraordinary relief,

which frustrated an important policy adopted by the

President pursuant to his express statutory authority to

superintend the federal civilian workforce.

The decision below would have warranted review by

this Court for multiple reasons, including that the Fifth

Circuit’s holding on CSRA preclusion squarely conflicts

with a D.C. Circuit decision addressing the same question in another challenge to EO 14,043. See Payne v.

Biden, 62 F.4th 598 (D.C. Cir. 2023), petition for cert.

pending, No. 22-1225 (filed June 16, 2023). But before

the government could obtain further review, the President revoked EO 14,043 in light of changed public

health conditions and this appeal became moot. Consistent with this Court’s ordinary practice under such

circumstances, the Court should grant the petition for a

writ of certiorari, vacate the judgment below, and remand with instructions to direct the district court to dismiss its order granting a preliminary injunction as

moot. See United States v. Munsingwear, Inc., 340

U.S. 36, 39 (1950); see also, e.g., Mayorkas v. Innovation Law Lab, 141 S. Ct. 2842, 2842 (2021).4

The plaintiff in Payne has filed a petition for a writ of certiorari

seeking Munsingwear vacatur of the D.C. Circuit’s decision in that

case. See Pet. at i, 8-11, Payne, supra (No. 22-1225). The

A. This Appeal Is Moot

The nationwide preliminary injunction issued by the

district court and the government’s appeal from that injunction became moot when the President revoked EO

14,043.

1. Under Article III, the jurisdiction of the federal

courts is limited to the resolution of actual “Cases” or

“Controversies.” U.S. Const. Art. III, § 2, Cl. 1. “To

qualify as a case fit for federal-court adjudication, ‘an

actual controversy must be extant at all stages of review.’ ” Arizonans for Official English v. Arizona, 520

U.S. 43, 67 (1997) (citation omitted). “A case that becomes moot at any point during the proceedings is ‘no

longer a “Case” or “Controversy” for purposes of Article III,’ and is outside the jurisdiction of the federal

courts.” United States v. Sanchez-Gomez, 138 S. Ct.

1532, 1537 (2018) (quoting Already, LLC v. Nike, Inc.,

568 U.S. 85, 91 (2013)).

A case or appeal becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Already, 568 U.S.

at 91 (citation omitted). “No matter how vehemently

the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the

dispute ‘is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.’ ”

Ibid. (citation omitted).

Under those principles, this preliminary-injunction

appeal became moot when the President revoked EO

14,043 and eliminated the basis for any agency policies

premised on EO 14,043, such as the Safer Federal

government agrees that Munsingwear vacatur is warranted there

for the same reasons that it is warranted here and will convey that

position in its response brief.

Workforce Task Force’s guidance. The issues presented in the government’s interlocutory appeal to the

Fifth Circuit, including whether the district court

lacked jurisdiction to preliminarily enjoin the implementation of EO 14,043 and whether the preliminary injunction was an abuse of discretion, are no longer the

subject of any live controversy. EO 14,043 no longer

exists to be enjoined. Affirming the preliminary injunction would do nothing to benefit respondents, and they

therefore lack any legally cognizable interest in the outcome of these proceedings.

2. In the district court, respondents have contended

that this case is not moot because “the President voluntarily ceased the offending conduct.” D. Ct. Doc. 49, at 14

(May 12, 2023). Respondents’ reliance on the voluntarycessation exception to mootness is misplaced.

This Court has “recognized * * * that a defendant

cannot automatically moot a case simply by ending its

unlawful conduct once sued.” Already, 568 U.S. at 91.

Otherwise, defendants would be able to “evade judicial

review” in Article III courts “by temporarily altering

questionable behavior,” only to resume the challenged

conduct at a later time. City News & Novelty, Inc. v.

City of Waukesha, 531 U.S. 278, 284 n.1 (2001). “Given

this concern,” the Court has explained that “ ‘a defendant claiming that its voluntary compliance moots a case

bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not

reasonably be expected to recur.’ ” Already, 568 U.S. at

91 (citation omitted).

Those principles confirm that the voluntary-cessation

exception does not apply here. The President revoked

EO 14,043 because of the waning of the pandemic, not

any effort to evade judicial review or gain litigation

advantage. The President explained that the country is

“no longer in the acute phase” of the COVID-19 pandemic. EO 14,099, § 1, 88 Fed. Reg. at 30,891. He noted

that hospitalization and mortality rates have fallen dramatically since EO 14,043 was issued, and that the vast

majority of civilian federal employees either are already

vaccinated or would be eligible for an exemption or extension under the terms of that order. Ibid. Accordingly,

the President determined that “we no longer need a

Government-wide vaccination requirement” to protect

the civilian federal workforce. Ibid.

The equitable exception for voluntary cessation does

not fit those circumstances. In Munsingwear, for example, this Court indicated than an analogous termination of a government policy in light of fundamentally

changed circumstances—there, the lifting of wartime

price controls after the end of the war—caused a pending dispute about the policy to become moot. See Munsingwear, 340 U.S. at 38-39. This Court also recently

concluded that the end of the COVID-19 public-health

emergency mooted a pending controversy about certain

border-control measures imposed during the pandemic,

notwithstanding the challengers’ argument that the

voluntary-cessation doctrine applied. See Arizona v.

Mayorkas, 143 S. Ct. 1312 (2023); Petitioners’ Ltr. at 13, Arizona, supra (May 16, 2023) (No. 22-592). And the

courts of appeals have likewise found that the recent lifting of various federal COVID-19 emergency measures

mooted disputes about those measures—including, in

one instance, another challenge to EO 14,043. See Donovan v. Vance, 70 F.4th 1167, 1172 (9th Cir. 2023)

(stating that the court “cannot provide” prospective injunctive relief “from EOs * * * that no longer exist”);

see also, e.g., Livingston Educ. Serv. Agency v. Becerra,

No. 22-1257, 2023 WL 4249469, at *1 (6th Cir. June 29,

2023); Health Freedom Def. Fund v. President of the

United States, No. 22-11287, 2023 WL 4115990, at *2-*4

(11th Cir. June 22, 2023); Missouri v. Biden, No. 221104, 2023 WL 3862561, at *1 (8th Cir. June 7, 2023) (per

curiam); Hollis v. Biden, No. 21-60910, 2023 WL

3593251, at *1 (5th Cir. May 18, 2023) (per curiam).

Even if revoking EO 14,043 in light of changed circumstances were viewed as akin to voluntarily ceasing

to enforce it, this controversy would still be moot because the President “could not reasonably be expected”

to reinstate EO 14,043. Already, LLC, 568 U.S. at 92

(citation omitted). A large majority of civilian federal

employees already chose to become vaccinated against

COVID-19. See EO 14,099, § 1, 88 Fed. Reg. at 30,891

(stating that the federal government had achieved “a 98

percent compliance rate,” taking into account approved

or pending exemptions). If the COVID-19 pandemic

were to reenter an acute phase posing heightened dangers to the public and the civilian federal workforce, any

policies adopted in response to those developments

would be based on and responsive to those new circumstances. Likewise, any future challenge to those hypothetical policies would have to take into account the circumstances justifying them. At this time, no reasonable

prospect exists that the government will resume enforcing the same policy challenged here.

B. The Decision Below Would Have Warranted Review

Vacatur of a lower court’s decision because of intervening mootness is generally available only to “those

who have been prevented from obtaining the review to

which they are entitled.” Camreta v. Greene, 563 U.S.

692, 712 (2011) (quoting Munsingwear, 340 U.S. at 39).

It has therefore been the longstanding position of the

United States that when a case becomes moot after the

court of appeals enters its judgment but before this

Court acts on a petition for a writ of certiorari, Munsingwear vacatur is appropriate only if the question

presented would have merited this Court’s review had

the case not become moot. See, e.g., Pet. at 16-17, Yellen

v. United States House of Representatives, 142 S. Ct.

332 (2021) (No. 20-1738); see also Stephen M. Shapiro et

al., Supreme Court Practice § 19.4, at 19-28 to 19-29 &

n.34 (11th ed. 2019). That standard is amply satisfied

here. Had this case not become moot, the Fifth Circuit’s

decision would have warranted this Court’s review because it squarely conflicts with a decision of the D.C.

Circuit, because it misapplies this Court’s CSRA precedent, and because it erroneously resolves important

questions of presidential authority and the proper scope

of equitable relief.

1. The Fifth Circuit held that the district court had

jurisdiction over respondents’ challenge to EO 14,043

notwithstanding the CSRA’s channeling provisions.

See App., infra, 3a-21a. That holding directly conflicts

with the D.C. Circuit’s decision in a parallel case, Payne

v. Biden, supra.

a. In Payne, the D.C. Circuit unanimously affirmed

the dismissal of a challenge to EO 14,043 on CSRA preclusion grounds. 62 F.4th at 600. The plaintiff in that

case was a civilian federal employee who alleged that

EO 14,043 “violate[d] the separation of powers.” Id. at

602. Like respondents, the employee sued the government in district court before being suspended or terminated for refusing to comply with EO 14,043. See id. at

604. The district court determined that the plaintiff ’s

claims were “precluded under the CSRA” and therefore

“dismissed the suit for lack of subject matter jurisdiction.” Id. at 600.

In affirming, the D.C. Circuit explained that the

CSRA sets forth comprehensive procedures for federal

employees to challenge “major adverse [personnel] actions,” including removal from the civil service. Payne,

62 F.4th at 601 (citing 5 U.S.C. 7511-7515). The D.C.

Circuit further explained that the CSRA generally

channels disputes about such actions “first to the MSPB

* * * and then to the Federal Circuit.” Ibid. The D.C.

Circuit also recognized that this Court has held that

“the CSRA’s ‘elaborate framework’ clearly ‘demonstrates Congress’ intent to entirely foreclose judicial review to employees to whom the CSRA denies statutory

review.’ ” Id. at 603 (quoting Elgin v. Department of the

Treasury, 567 U.S. 1, 11 (2012)).

The D.C. Circuit determined that the Payne plaintiff ’s challenge to EO 14,043 was “the type of claim Congress planned to be assessed under the CSRA,” 62

F.4th at 604, therefore precluding district-court jurisdiction. As particularly relevant here, the court rejected the plaintiff ’s attempt to characterize his challenge as an attack on the “vaccine mandate” writ large,

rather than an attempt to pretermit an eventual adverse personnel action, observing that “such re-framing

is inconsistent with his overarching argument and does

not alter the jurisdictional outcome.” Ibid.5

The Fourth Circuit reached the same conclusion in an unpublished decision from which the plaintiff did not seek further review. See Rydie v. Biden, No. 21-2359, 2022 WL 1153249, at *4-*8

(Apr. 19, 2022). Numerous district courts also dismissed challenges

to EO 14,043, including on CSRA preclusion grounds. See, e.g.,

Brass v. Biden, No. 21-cv-2778, 2022 WL 11732833, at *1 (D. Colo.

Oct. 20, 2022); American Fed’n of Gov’t Emps. Local 2586 v. Biden,

b. The D.C. Circuit’s decision in Payne cannot be

reconciled with the Fifth Circuit’s decision here. The

D.C. Circuit concluded that the CSRA precludes federal

employees from challenging EO 14,043 in district court.

The Fifth Circuit held in this case that a materially indistinguishable challenge to the exact same executive

order could be heard in district court.

That conflict would have warranted this Court’s

review under the Court’s traditional criteria. Sup. Ct.

R. 10(a). Indeed, further review would have been particularly warranted in light of the universal scope of the

preliminary injunction upheld by the Fifth Circuit. See

App., infra, 40a-44a. The Fifth Circuit effectively permitted a single district court to grant preliminary injunctive relief to the very same federal employees who

had been denied such relief in the D.C. Circuit case and

the numerous other decisions rejecting challenges to

EO 14,043. See p. 18 & n.5, supra. The en banc majority emphasized that those courts had denied relief on

threshold grounds like CSRA preclusion or lack of

standing, rather than on the merits. App., infra, 43a.

But that only underscores the division of authority: The

nationwide injunction upheld here effectively undid the

considered decisions of multiple other federal courts,

which had concluded that challenges to EO 14,043 must

be channeled through the mechanisms prescribed in the

CSRA.

2. The decision below also would have warranted

this Court’s review because the Fifth Circuit incorrectly

616 F. Supp. 3d 1275, 1280-1283 (W.D. Okla. 2022); American Fed’n

of Gov’t Emps. Local 2018 v. Biden, 598 F. Supp. 3d 241, 248-249

(E.D. Pa. 2022); cf. App., infra, 105a n.1 (vacated panel opinion) (observing that “[a]t least twelve district courts previously rejected

challenges to [EO 14,043] for various reasons”).

resolved multiple important questions of federal law.

The Fifth Circuit’s jurisdictional analysis cannot be

squared with this Court’s CSRA precedent, and its cursory evaluation of the merits wrongly discounted the

President’s statutory authority to establish regulations

governing the selection of new civilian federal employees and the conduct of existing employees.

a. This Court has made clear that the CSRA precludes federal employees from suing in district court to

challenge personnel actions covered by the Act. Those

precedents do not permit any exception for preemptive

challenges like this one.

In United States v. Fausto, 484 U.S. 439 (1988), a civilian federal employee was suspended from his job for

30 days without pay for misconduct. Id. at 442. The

Federal Circuit held that the CSRA did not preclude the

employee from suing for backpay because the CSRA did

not afford employees in his civil service category any

mechanism to challenge a 30-day suspension before the

MSPB or a court. Id. at 443. This Court reversed, reasoning that Congress’s “deliberate exclusion” of such

employees from the CSRA’s review provisions precluded

the plaintiff from seeking review by other means. Id. at

455. The Court observed that the CSRA establishes an

“elaborate” framework that “prescribes in great detail

the protections and remedies” available to specified federal employees for covered personnel actions. Id. at

443. The Court thus held that the absence of any provision for employees like the plaintiff to obtain judicial review was not an oversight but rather a “manifestation

of a considered congressional judgment” to deny such

employees any “entitlement to review.” Id. at 448-449.

The Court reaffirmed that view of CSRA preclusion

in Elgin, supra, which (unlike Fausto) involved federal

employees to whom the CSRA afforded review. See Elgin, 567 U.S. at 5-7. The employees were terminated

under a statute that prohibits Executive agencies from

employing individuals who “knowingly and willfully

failed to register” for the Selective Service when required to do so. Id. at 7 (citing 5 U.S.C. 3328). Rather

than pursuing the review mechanisms available to them

under the CSRA, the employees sought to challenge the

constitutionality of the employment bar in district

court. Id. at 7-8. This Court held that the CSRA “precludes district court jurisdiction over [the employees’]

claims.” Id. at 8. The Court explained that “[ j]ust as

the CSRA’s ‘elaborate’ framework demonstrates Congress’ intent to entirely foreclose judicial review to employees to whom the CSRA denies statutory review, it

similarly indicates that extrastatutory review is not

available to those employees to whom the CSRA grants

administrative and judicial review.” Id. at 11 (citation

omitted). The Court also explained that the CSRA does

not contain any exception for “facial * * * constitutional challenges.” Id. at 12.

The Fifth Circuit’s decision contradicts Fausto and

Elgin. Those precedents together make clear that, in

terms of administrative and judicial review of covered

personnel actions, what civilian federal employees “get

under the CSRA is what [they] get.” Fornaro v. James,

416 F.3d 63, 67 (D.C. Cir. 2005) (Roberts, J.). In the

decision below, however, the Fifth Circuit concluded

that respondents could avoid the reticulated CSRA

framework simply by suing in district court before suffering any “CSRA-covered personnel actions.” App.,

infra, 14a; see id. at 19a-21a. The Fifth Circuit stated

that CSRA preclusion “depend[s] on the claims plaintiffs choose to bring,” and it accepted respondents’

characterization of the claims at issue here as a challenge to the “vaccine mandate” itself, “separate and

apart from any personnel action.” Id. at 31a-32a.

That understanding of how the CSRA works would

permit federal employees to “end run [this Court’s]

precedent.” App., infra, 78a (Higginson, J., concurring

in part and dissenting in part). Under the logic of the

decision below, the plaintiffs in Elgin could have proceeded in district court by simply suing before being

terminated and framing their suit as a challenge to the

employment bar. Likewise, federal employees to whom

the CSRA denies any review could circumvent this

Court’s holding in Fausto by rushing to district court to

challenge any policy that the employees fear will result

in an otherwise-unreviewable personnel action.

Inviting such preemptive attacks would seriously undermine “[t]he CSRA’s objective of creating an integrated scheme of review” and would “reintroduce the

very potential for inconsistent decisionmaking and duplicative judicial review that the CSRA was designed to

avoid.” Elgin, 567 U.S. at 14. Congress did not enact

an “ ‘exhaustively detailed * * * system of review before the MSPB and the Federal Circuit’ only to leave

such a conspicuous (and unexplained) loophole.” Payne

v. Biden, 602 F. Supp. 3d 147, 160 (D.D.C. 2022) (brackets and citation omitted), aff ’d, 62 F.4th 598 (D.C. Cir.

2023), petition for cert. pending, No. 22-1225 (filed June

16, 2023).

b. The Fifth Circuit’s decision also would have warranted further review because the preliminary injunction upheld below wrongly circumscribed the President’s authority to superintend the federal civil service,

including his express authority under 5 U.S.C. 3301,

3302, and 7301. EO 14,043 was a lawful exercise of those

powers. The Fifth Circuit apparently concluded otherwise, but the en banc majority failed to explain why—

stating merely that it “substantially agree[d]” with the

district court’s reasoning. App., infra, 40a. The majority thus addressed an important question about presidential authority in a “perfunctory” “two sentences.”

Id. at 96a (Higginson, J., concurring in part and dissenting in part).

The district court’s reasoning was no more persuasive. The court stated that respondents were likely to

succeed in showing that EO 14,043 exceeded the President’s authority to “prescribe regulations for the conduct of employees in the executive branch,” 5 U.S.C.

7301, because, in the court’s view, Section 7301 only authorizes the President to regulate “workplace conduct,”

App., infra, 151a. But the court failed to justify that

italicized limitation, which appears nowhere in the statutory text. And even if the President’s authority under

Section 7301 were limited to prescribing regulations to

govern “workplace conduct,” ibid., the district court

identified no persuasive reason to regard EO 14,043 as

beyond the ambit of that authority. Numerous private

employers likewise responded to the COVID-19 pandemic by requiring their employees to be vaccinated as

a condition of employment. See p. 6, supra.

The district court did not discuss those private-sector

measures, any of the historical antecedents invoked by

the government, or the plain meaning of the term “conduct.” The district court instead reasoned that this

Court’s then-recent decision in NFIB v. OSHA, 142

S. Ct. 661 (2022) (per curiam), had already established

that “COVID-19 is not a workplace risk, but rather a

‘universal risk,’ ” App., infra, 151a (quoting NFIB, 142

S. Ct. at 665). But the statute at issue in NFIB

authorized the relevant agency to set occupational

safety and health standards for certain private businesses. NFIB, 142 S. Ct. at 665. This Court was not

addressing the President’s authority over the federal

workface that he himself superintends, nor was the

Court construing the term “conduct” as used in Section

7301 (or any other statute). The district court failed to

appreciate those distinctions.

EO 14,043 also rested in part on the President’s authority to prescribe “regulations for the admission of individuals into the civil service” and to “ascertain the fitness of applicants as to * * * health.” 5 U.S.C. 3301(1)

and (2); see EO 14,043 Pmbl., 86 Fed. Reg. at 50,989.

The district court dismissed Section 3301 as irrelevant

because the plaintiffs here are (or include) “current federal employees,” App., infra, 149a, yet the court proceeded to enjoin the government from enforcing EO

14,043 with respect to all federal employees—even new

entrants to the federal civil service—without any further discussion of Section 3301. The court also stated

that “other courts have already held that whatever authority the provision does provide is not expansive

enough to include a vaccine mandate,” ibid., citing a pair

of decisions addressing an entirely different Section

3301—namely, 41 U.S.C. 3301, a procurement statute

with no relevance to the President’s authority over federal employees. The Fifth Circuit, in turn, wholly failed

to address 5 U.S.C. 3301, let alone explain why it “substantially agree[d]” with the district court’s unreasoned

extension of the preliminary injunction to new employees. App., infra, 40a.

c. The universal scope of the preliminary injunction

further underscores that this Court’s review would have

been warranted.

Members of this Court have

repeatedly raised questions about the propriety of nationwide or “universal” injunctions, which lack any basis in Article III or traditional equitable principles. The

increasingly routine issuance of such injunctions has

“proven ‘unworkable, sowing chaos for litigants, the

government, courts, and all those affected by these

sometimes conflicting’ decrees.” United States v.

Texas, 143 S. Ct. 1964, 1980 (2023) (Gorsuch, J., concurring in the judgment) (quoting DHS v. New York, 140

S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the

grant of stay)) (brackets omitted); see Trump v. Hawaii, 138 S. Ct. 2392, 2425-2429 (2018) (Thomas, J., concurring).

This case is yet another example of those myriad

problems. Here, the district court’s issuance of sweeping nationwide relief to non-parties effectively overturned the results reached by numerous other courts,

including the D.C. and Fourth Circuits, which had rejected analogous challenges to EO 14,043. See pp. 1718 & n.5, supra. And the Fifth Circuit identified no

plausible justification for such extraordinary relief, instead accepting the district court’s view that more tailored relief would have been “unwieldy” or “confus[ing]” because Feds for Medical Freedom claims to

have more than 6000 members. App., infra, 41a (citation omitted). Neither of the lower courts explained

why an injunction limited to the parties would have been

any more “unwieldy” in this case than in any other case

involving an organizational plaintiff. At a minimum, the

nationwide scope of relief would have provided additional reason for this Court to grant review.

C. Vacatur Is Appropriate Under Munsingwear

When a case that would otherwise merit this Court’s

review becomes moot “while on its way [to this Court]

or pending [a] decision on the merits,” the Court’s “established practice” is to “vacate the judgment below and

remand with a direction to dismiss.” Munsingwear, 340

U.S. at 39. That practice ensures that no party is “prejudiced by a [lower-court] decision” and “prevent[s] a

judgment, unreviewable because of mootness, from

spawning any legal consequences.” Id. at 40-41; see

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513

U.S. 18, 21 (1994) (“If a judgment has become moot

while awaiting review, this Court may not consider its

merits, but may make such disposition of the whole case

as justice may require.”) (brackets and citation omitted). The Court should follow that usual practice and

vacate the Fifth Circuit’s decision in this case.

As this Court has repeatedly observed, the determination whether to vacate the judgment when a case becomes moot while pending review ultimately “is an equitable one,” U.S. Bancorp, 513 U.S. at 29, requiring the

disposition that would be “most consonant to justice” in

light of the circumstances, id. at 24 (citation omitted).

See Azar v. Garza, 138 S. Ct. 1790, 1792 (2018) (per curiam) (observing that because Munsingwear vacatur “is

rooted in equity, the decision whether to vacate turns

on ‘the conditions and circumstances of the particular

case’ ”) (citation omitted).

The equities here favor vacatur. The case became

moot because the President revoked EO 14,043 as part

of a broader unwinding of measures that had been put

into place during the acute phase of the COVID-19 pandemic. No principle of equity would support requiring

the President to maintain the vaccination requirement,

despite his determination that it is now unnecessary,

merely to preserve the opportunity to ask this Court to

review the Fifth Circuit’s erroneous decision. It would

be especially strange to put the President to such a

choice in order to preserve the possibility that this

Court would reject the Fifth Circuit’s analysis of CSRA

preclusion—an issue with significant prospective importance to the Executive Branch, but no necessary

connection to vaccination or the COVID-19 pandemic.

This Court has observed that, absent “exceptional

circumstances,” vacatur may be unwarranted when “the

losing party has voluntarily forfeited his legal remedy

by the ordinary processes of appeal or certiorari,” such

as when “mootness results from settlement.” U.S. Bancorp, 513 U.S. at 25, 29; cf. id. at 25 n.3. But different

considerations apply when the mooting event is an action taken by a coordinate Branch in the exercise of authority and discretion vested in it by the Constitution

and statutes, apart from litigation. For example, in

United States v. Microsoft Corp., 138 S. Ct. 1186 (2018)

(per curiam), this Court vacated a lower court’s judgment after Congress passed and the President signed a

new statute, and the Executive Branch sought and obtained a new search warrant under the new statute—

the combination of which eliminated the “live dispute”

between the parties on “the issue with respect to which

certiorari was granted.” Id. at 1188. Similarly, in Alvarez v. Smith, 558 U.S. 87 (2009), the Court determined

that vacatur was appropriate even when the State had

voluntarily returned the disputed property to the respondents (thereby mooting the case), because the

State had done so for reasons unrelated to the federal

litigation. Id. at 96. Vacatur is equally appropriate

here, where the President revoked the vaccination requirement not for the purpose of mooting this case but

as part of a broader response to developments in public

health conditions unrelated to the litigation.

This Court’s recent practice further confirms that

Munsingwear vacatur is appropriate when challenges

to significant federal policies are mooted by Executive

actions undertaken in good faith and for reasons unrelated to litigation. See, e.g., Yellen v. United States

House of Representatives, 142 S. Ct. 332, 332 (2021)

(challenge to certain expenditures moot after Executive

Branch ceased the expenditures); Innovation Law Lab,

141 S. Ct. at 2842 (challenge to certain immigration

practices moot after Executive Branch terminated the

practices); cf. Trump v. International Refugee Assistance, 138 S. Ct. 353, 353 (2017) (challenge to executive

order moot after expiration of order). As in those cases,

neither justice nor the public interest would be served

by forcing the Executive Branch to choose between

maintaining a policy that it has concluded is no longer

warranted and acquiescing in a precedential judicial decision that the Executive Branch believes would be contrary to its prerogatives and harmful to the public interest as a whole.

CONCLUSION

The Court should grant the petition for a writ of certiorari, vacate the judgment of the court of appeals, and

remand with instructions to direct the district court to

vacate its order granting a preliminary injunction as

moot under United States v. Munsingwear, Inc., 340

U.S. 36 (1950).

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

BRIAN H. FLETCHER

Deputy Solicitor General

MATTHEW GUARNIERI

Assistant to the Solicitor

General

CHARLES W. SCARBOROUGH

SARAH CARROLL

CASEN B. ROSS

DANIEL WINIK

Attorneys

JULY 2023

APPENDIX

TABLE OF CONTENTS

Page

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

— Court of appeals en banc opinion

(Mar. 23, 2023) ......................................... 1a

— Court of appeals panel opinion

(Apr. 7, 2022) ...................................... 103a

— Court of appeals stay motion opinion

(Feb. 9, 2022) ..................................... 124a

— District court order denying stay

(Feb. 11, 2022) ................................... 138a

— District court memorandum opinion

and order (Jan. 21, 2022) .................. 140a

— Court of appeals order granting

en banc rehearing (June 27, 2022)..... 158a

— Statutory provisions:

5 U.S.C. 3301 ....................................... 160a

5 U.S.C. 3302 ....................................... 160a

5 U.S.C. 7301 ....................................... 161a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 22-40043

FEDS FOR MEDICAL FREEDOM; LOCAL 918, AMERICAN

FEDERATION OF GOVERNMENT EMPLOYEES;

HIGHLAND ENGINEERING, INCORPORATED;

RAYMOND A. BEEBE, JR.; JOHN ARMBRUST; ET AL.,

PLAINTIFFS-APPELLEES

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

[Filed:

Mar. 23, 2023]

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.

(1a)

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.

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* 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.

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 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.

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

claims and hence does not implicitly displace § 1331 jurisdiction.

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 concomi-

tantly 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;

(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

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) (referSection 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 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.

ral). 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 thenJudge 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), 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-75covered 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 be-

cause 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 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

10a

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 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 CSRAcovered 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:

11a

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.

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.

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

12a

sound and efficient administration.”

S. REP. NO. 95-969, at 4 (1978)).

Id. at 445 (citing

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 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

13a

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 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 CSRAcovered 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-

14a

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 CSRAcovered personnel action.

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

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.

Chapter 75.

Then we (2) discuss

First, the Government fails to prove plaintiffs are

challenging a “personnel action” under Chapter 23.

15a

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 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 em-

16a

ployee’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 sin-

17a

gle federal employee’s irreversible medical decisions.

Cf. Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 95456 (Fed. Cir. 2020) (holding 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 AbThe 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).

18a

sent 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 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

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 million

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).

19a

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.

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

20a

speculation about what its employment supervisors will

do in the future. 4

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

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.

21a

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, preenforcement 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

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

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.

22a

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 drugtesting 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.

23a

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.

24a

The first Thunder Basin factor is whether “a finding

of preclusion could foreclose all meaningful judicial review.” 510 U.S. at 212-13. The 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 purFor 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.

25a

sue 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 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 CSRAcovered 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 ap-

26a

ply, 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.

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)

27a

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 employmentrelated 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.

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 Govern-

28a

ment 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).

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 disagrees with how we

reach that conclusion. We write to address these areas

of disagreement.

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

29a

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 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

30a

all manner of constitutional claims were denied a federal

forum at the Founding without offending any constitutional principle. See HART & WECHSLER, supra, at 2526; 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.” (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

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).

31a

avoid it. That’s a quite-odd form of constitutional

avoidance.

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 preenforcement 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

32a

or to implicitly strip § 1331 jurisdiction. See Gustafson, 803 F.3d at 888; Bush, 462 U.S. at 385 n.28.

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.

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

33a

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.

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 5961 & 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.).

34a

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

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.

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

35a

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 letter) was not one of the listed

personnel actions covered by the CSRA. As thenJudge 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 em-

36a

ployees 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.

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.

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

37a

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. (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

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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).

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 preenforcement review of a federal mandate, he must sat-

39a

isfy 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.

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).

40a

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 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

41a

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 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 governmentwide 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.

42a

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 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, 62 F.4th 598 (D.C. Cir. 2023). See id.

at 607 (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.

43a

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 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,

44a

Statement of Administration Policy Re:

H.J. Res. 7 (Jan. 30, 2023).

AFFIRMED.

H.R. 382 &

45a

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,

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).

46a

§ 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 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

47a

set against [the President’s] agenda, and those in whom

he has simply lost confidence.”) (cleaned up). 2

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

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.”).

48a

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 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 T HE 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 bureau-

49a

cracy.” 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 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

50a

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 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).

51a

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-

52a

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 employees—and more than their

conduct, purports to govern their individual healthcare

decisions”).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 onvictions”); 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.”).

53a

HAYNES, Circuit Judge, concurring in the judgment in

part and dissenting in part:

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.

Dissent1

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,

Judges Higginson and Willett join in Section II.

54a

1933-34 (2018) (emphasis added); see also Dep’t of

Homeland Sec., 140 S. Ct. at 600 (Gorsuch, 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 Circuit3 and is

currently defending the dismissal of similar challenges in

the Third and D.C. Circuits,4 “[b]ut those cases are ren-

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).

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).

The Government subsequently noted that the D.C. Circuit

ruled in its favor. See Payne v. Biden, 62 F.4th 598 (D.C. Cir.

2023).

55a

dered essentially meaningless by this nationwide injunction.”5

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

The majority opinion misunderstands my point here:

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 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.

The majority opinion’s last substantive paragraph notes that

this case “only involves a preliminary injunction” which has the

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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 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.

“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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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 cas

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