The Fifth Circuit federal appeals court has left in place a lower court’s order blocking the federal employee Coronavirus vaccination mandate, although its ruling contained indications that a different outcome may lie ahead.
The court rejected what in effect was an emergency motion from the Justice Department to stay the injunction while it considers the administration’s appeal. However, a three-judge panel of the court ordered that the motion be “carried with the case” as it moves forward to a consideration of the merits of the underlying legal arguments.
“This matter is expedited to the next available randomly designated regular oral argument panel. The Clerk is directed to issue a schedule for expedited briefing. The merits panel, once identified, will be free, in its discretion, to rule immediately on the motion to stay or await oral argument,” the court said in a 2-1 decision.
The two judges in the majority did not provide any explanation for refusing to lift the injunction but the dissenting judge explained why he would have, largely reflecting the arguments the Justice Department had made in seeking a stay. He wrote that “the government has made a strong showing that it is likely to succeed” in showing that:
* “the district court lacks jurisdiction over this case” because the group of employees challenging the mandate must “raise their workplace grievances through the administrative procedures set forth in the Civil Service Reform Act” rather than directly in federal court.
* “the plaintiffs have not met their burden for obtaining a preliminary injunction” which requires a showing of likely “irreparable harm” otherwise; the judge said that even if they should lose their jobs, the law provides for reinstatement with back pay and other benefits if they ultimately prevailed against the mandate.
* “the President has authority to promulgate this executive order pertaining to the federal executive workforce” in “his role as CEO of the federal workforce.”
“Federal employees that disagree with the content of Executive Order 14043 retain the right to claim an exemption, to leave the government’s employment, to collectively bargain, and to challenge the order through the CSRA,” he wrote.
The case now will be assigned to a different panel of judges, where the administration likely will make similar arguments. The ruling gave no indication of when the case might get further action.