Fedweek

An injunction is preventing agencies from taking disciplinary actions. Image: BaLL LunLa/Shutterstock.com

The federal appeals court handing the primary lawsuit against the Coronavirus vaccination mandate for federal employees has said it will hear oral arguments during the week of September 12 — a year almost to the day from when the mandate was issued last September 9.

The Fifth Circuit appeals court in scheduling oral arguments in the case further gave the opposing parties until July 27 to file additional legal briefs in a dispute that already has gone through that process several times.

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Those are steps for the full appeals court of 17 judges to reconsider an earlier decision by a panel of three judges that rejected the suit on jurisdictional grounds. The panel held in April that the Civil Service Reform Act required that the challenge first go through the MSPB process, and not directly into federal court.

The panel’s ruling would have lifted an injunction issued in January by a federal district judge against the mandate. That injunction remained in effect, though, while the full appeals court decided whether to take up the case “en banc”—and will continue to remain in effect now that the court has said it will.

The injunction has prevented agencies from taking disciplinary actions, just as they were preparing to start, against employees deemed not in compliance with the mandate—that is, those who are not vaccinated and don’t have a granted or pending request for an exception for medical or religious reasons.

The case is now headed for another legal round in a bout that already has included: the initial district court consideration; an emergency request by the Biden administration that the appeals court lift the injunction, which a panel denied; a standard request to lift the injunction, which a different panel granted but delayed putting into effect; and the administration’s request to lift the injunction immediately, which never was decided because the court granted the plaintiffs’ request for rehearing en banc.

In that process, the arguments of the parties—the Justice Department in favor of the mandate and the Feds for Medical Freedom group and certain other plaintiffs on the other side—have been largely the same each time. Similar arguments have been raised in about a dozen other suits but the case before the Fifth Circuit has become the bellwether because it is the only one in which a judge issued an injunction.

Although the briefing and oral arguments have been scheduled, it will be up to the court’s discretion regarding when it ultimately will issue its decision.

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