Feds for Medical Freedom accuses the WH of trying to get SCOTUS to "erase the circuit court loss from the books." Image: Evgenia Parajanian/Shutterstock.com
The group that brought a so-far successful challenge to the Biden administration’s Coronavirus vaccination mandate for federal employees has asked the U.S. Supreme Court to allow the case to continue even though the White House has revoked that directive.
The Feds for Medical Freedom group said that in recently asking the high court to dismiss the case, the Justice Department was seeking to “litigate to the hilt in both district and circuit court and—only if they lose—then decline to seek substantive review from this court and instead moot the case and ask this court to erase the circuit court loss from the books.”
The suit resulted in a federal district court issuing a preliminary injunction against the mandate in early 2022, just as agencies were to begin enforcing it, holding that the group had shown that it was likely to succeed in its claim that the mandate exceeded a President’s authority over the federal workforce. A series of challenges followed, focusing instead on whether the Civil Service Reform Act required that the case be brought first through the MSPB channels rather than directly into federal court.
In March of this year a divided full Fifth Circuit federal appeals court ruled that a direct challenge in federal courts was allowable and sent the case back to the trial judge for a full consideration of the merits of the complaint. Action there has been held up, though, pending a possible challenge before the Supreme Court. The Justice Department made such a challenge last month, arguing that there is no longer a controversy, since the mandate was revoked in the meantime.
In their response, Feds for Medical Freedom argued that “there is value in keeping the Fifth Circuit’s decision on the books. It was issued after extensive deliberation by seventeen circuit judges. And the opinion serves as a critical warning against government overreach during times of emergency. The Court should decline Petitioners’ [the Justice Department’s] request to send this entire episode down the memory hole.”
Eleven of those judges, it added “the court also held that the President had exceeded his authority by mandating that millions of civilian employees be subjected to a medical procedure.”
As with most of the arguments in the case, the filing dealt mostly with technical issues of court jurisdiction—asserting that the administration should not be allowed to avoid review of the underlying issues by revoking the mandate after it lost at the circuit court.
“Beginning in Fall 2022 and continuing into early 2023, Petitioners dismantled other parts of their COVID-19 response regime yet conspicuously declined to withdraw the mandate for employees. Petitioners were waiting to see whether they would prevail below, and only after receiving a sharp rebuke from the en banc Fifth Circuit did they decide to withdraw the employee mandate, forgo seeking further merits review, and instead try to get the Fifth Circuit’s precedential decision vacated,” it said.
It said the administration was seeking an outcome of “heads we win, tails you get vacated.”
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