WH argues the mandate no longer exists to be enjoined and wants the case dismissed, but still defends the mandate; Feds for Medical Freedom wants the case resolved ahead of a future pandemic. Image: Vincenzo Izzo/Shutterstock.com
By: FEDweek StaffThe Biden administration has asked the U.S. Supreme Court to head off a decision by a lower court on whether its Coronavirus vaccine mandate for federal employees exceeded a President’s authority over the federal workforce.
The Justice Department asked the court to order a federal judge to dismiss the dispute as moot, given that President Biden revoked the mandate shortly after an appeals court sent the case back to the trial judge for a decision on the limits of Presidential powers in setting policies that affect employees’ off-duty lives as well as their workplace roles.
Should the high court agree to that request, the long-running controversy over the mandate — which focused more on legal procedural issues than on the mandate itself — would reach an end without a resolution to that issue. Also left unresolved would be the procedural issues, involving whether federal employees must always first bring appeals of personnel actions through internal administrative channels such as the MSPB, or whether there are circumstances in which they can appeal directly to federal court.
The request comes in the lead case among the dozen brought after the mandate was issued in September 2021. Just as agencies were set to begin taking disciplinary actions against non-compliant employees in January 2022, a district judge issued a nationwide temporary injunction.
The judge held that the group bringing the challenge, Feds for Medical Freedom, was likely to prevail in its argument that the mandate went beyond the type of federal employment-related policy over which Presidents have broad authority. The judge said the mandate left those employees with the choice of accepting “an unwanted medical procedure that cannot be undone” or potentially being fired.
That injunction stayed in place through a series of appeals and motions focusing on whether the case had to first go through the MSPB appeals process before going into federal court. The Fifth Circuit appeals court in March ruled that it didn’t and sent the case back to the trial judge to consider full arguments on whether the mandate violated employees’ constitutional rights vs. whether it fell within a President’s powers to manage the workforce. Further action at the lower court was held up, though, pending a possible appeal to the Supreme Court.
In its request to end the case, the administration said the situation meets the Supreme Court’s standards for ordering a case to be dismissed even after an appeals court has told a lower court to decide on the underlying issues. The mandate is “no longer the subject of any live controversy” since it “no longer exists to be enjoined” and “no reasonable prospect exists that the government will resume enforcing” such a policy, it said.
However, it did defend the mandate, saying it “rested on and invoked the President’s constitutional and statutory authority to manage the civilian workforce . . . 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.”
The next steps will be a response from the Feds for Medical Freedom group and possibly other interested parties, likely asserting for example that the issues need to be resolved given the possibility of a future pandemic resulting in a similar mandate. That group also has several other suits pending, arguing that employees who sought exemptions for religious or medical reasons suffered damage to their careers.
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