In its request for more time, the Justice Department did not address whether the case is now moot. Image: myboys.me/Shutterstock.com
By: FEDweek StaffThe Supreme Court has given the Biden administration another month, until July 21, to decide whether to appeal to the high court an appeals court’s ruling against its Coronavirus vaccination mandate for federal employees.
“The Solicitor General has not yet determined whether to file a petition for a writ of certiorari in this case. Additional time is needed for further consultation within the Department of Justice and with other affected components of the Executive Branch about the legal and practical impact of the court of appeals’ decision,” said the administration’s request for more time, which the Supreme Court granted without comment.
The motion noted that since the ruling by the full Fifth Circuit Court of Appeals the White House has rescinded the September 2021 executive order creating the mandate. In January 2022, just as agencies were beginning to enforce it, a federal district court judge issued a nationwide temporary injunction against it.
That injunction stayed in place through a number of appeals up to the decision by the full Fifth Circuit in March of this year. The case now technically is in the hands of the district court judge to decide whether to make the injunction permanent while turning to the merits of the case or whether to dismiss the case as moot since the mandate no longer is in place.
In its request for more time, the Justice Department did not address whether the case is now moot. However, it did call to the high court’s attention that the decision by the judges of the Fifth Circuit was split with 10 judges issuing the majority opinion while the other seven produced two separate dissenting opinions.
Those rulings did not address the arguments by a group called Feds for Medical Freedom that the mandate exceeded a President’s powers over the federal workforce but instead focused on the jurisdictional issue of whether the challenge first had to go through the MSPB process. The question of what, if any, types of personnel disputes can be brought directly into federal court has been at the center of a number of cases in recent years.
Two other federal circuit courts have issued rulings in other cases involving the vaccine mandate contradicting the Fifth Circuit majority and holding that the disputes had to go through the MSPB first. The high court often steps in to resolve such conflicts between circuit courts, although there would be no guarantee that it would accept an appeal even if the administration files one.
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