Fedweek

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The Biden administration has asked a federal appeals court to allow it to again begin enforcing the Coronavirus vaccine mandate for federal employees immediately, in a motion indicating that would not otherwise happen at least until May 31.

The motion was made to the federal appeals court for the Fifth Circuit, which on April 7 told a federal district court judge in Texas to lift a nationwide injunction he had imposed and to dismiss the case entirely. However, to make that happen, a legal “mandate” must take effect and by not specifying a date for one, the appeals court effectively left it to take effect May 31 — the date it would happen by default under federal court procedures — the Justice Department said.

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Its motion asks the appeals court to either issue that mandate or otherwise act to lift the injunction “immediately,” saying the court “should take appropriate measures to ensure that its judgment is given meaningful effect pending issuance of its mandate.”

“The government is plainly entitled to a stay of the injunction, particularly in light of this court’s conclusion that plaintiffs ‘have not shown a substantial likelihood of success on the merits,’ because the district court lacks jurisdiction,” it said.

However, an opposing motion by the group sponsoring the suit, Feds for Medical Freedom, indicated that they plan to ask that the ruling by a three-judge panel be reconsidered by the full 17-member court, called rehearing en banc. It said that there is a “significant chance” that the court will follow that course, which likely would not produce a decision from the full court for several months.

“If this court stays the injunction but then en banc rehearing is granted, the panel’s opinion would be vacated and the injunction would be reinstated. This would cause mass confusion and chaos as employees and agencies are whipsawed from not having to comply with the vaccine mandate, to suddenly having to comply with it, and then quickly back to not having to comply,” it said.

Both sides also repeated prior legal arguments for and against the mandate.

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