A federal appeals court has agreed to rehear a case involving the Biden administration’s Coronavirus vaccine mandate for federal employees, for the meantime leaving a lower court injunction against the mandate in effect.
The Fifth Circuit federal appeals court granted rehearing “en banc” — that is, by the entire court of 17 judges — of an April ruling by a panel of three judges. That ruling had upheld the mandate on grounds that employees bringing the suit (primarily a group called Feds for Medical Freedom) first had to take their challenge through the MSPB appeals process.
The panel’s decision had reversed a district judge’s January ruling that the employees could go straight to federal court and that they further were likely to prevail on the merits of the complaint. On that basis, the judge issued a nationwide injunction just as agencies were getting ready to enforce the mandate.
The injunction has remained in effect since the April ruling by the Fifth Circuit panel to restore the mandate, pending the outcome of the plaintiffs’ request for rehearing by the full court. Now that the court has agreed to rehear the case, the panel’s decision to lift the injunction has been set aside until a ruling by the whole court.
In addition to preventing agencies from taking disciplinary actions up to and including firing against employees who are unvaccinated (and who don’t have a granted or pending request for an exception for medical or religious reasons), the injunction has barred agencies from considering such requests.
However, agencies can continue to accept such requests as they are filed, and agencies have continued to apply other Coronavirus-related safety practices that were not at issue in the suit.
There is no specific time frame for the en banc rehearing process, although it likely will consume a number of months. Most likely the Feds for Medical Freedom group and the Justice Department, representing the administration, will be given time to file additional briefs, leading to oral arguments before the judges and then eventually a decision.
That decision is not likely to be unanimous, given that the panel that granted the motion to lift the injunction split 2-1 while a separate, earlier, panel considering an emergency request to lift it also split 2-1 in denying that motion.
There has been a widespread view—among federal employee organizations and law firms specializing in federal workplace law — that the case ultimately will be pushed to the U.S. Supreme Court for consideration.