There has been a common expectation among specialists in federal employment law that the dispute could ultimately end up before SCOTUS. Image: Ritu Manoj Jethani/Shutterstock.com
By: FEDweek StaffUPDATED: The U.S. Supreme Court may be the next stop for the dispute over the Biden administration’s Coronavirus vaccination mandate for federal employees in the light of two conflicting rulings by federal appeals courts within days.
Most recently, the full Fifth Circuit Court of Appeals upheld the injunction that has been in effect since January of last year just as agencies were preparing to start enforcing the mandate. Under terms of the September 2021 mandate, employees were required to get vaccinated unless they qualified for an exception on religious or medical grounds, or else be subject to discipline up to and including firing. However, due to the injunction agencies have been under orders not to take disciplinary actions or even to process requests for exceptions.
The Fifth Circuit sitting en banc—that is, with all 17 judges participating–overturned a ruling by a three-judge panel that had said the trial judge should not have taken up the case at all; the panel had rules that the Civil Service Reform Act required the dispute to first go through administrative appeals channels. The injunction remained in effect despite that ruling, however, since the full appeals court afterward agreed to hear the case.
The result was a split decision, with 10 judges siding with a group called Feds for Medical Freedom that the administrative process does not provide sufficient legal protection. The majority held that the law’s provisions for personnel actions do not extend to “irreversible medical decisions to take COVID-19 vaccines.”
However, the other seven judges produced two separate dissenting opinions, citing Supreme Court rulings that they said broadly requires decisions first in administrative processes, which then can be appealed into the federal courts.
In that view, they echoed a ruling just days earlier by a panel of the federal appeals court for the District of Columbia Circuit, as well as one last year from the Fourth Circuit court. Throughout the multiple appeals, only the district court that issued the injunction addressed the merits of the complaint—a President’s authority as head of the federal workforce to issue such a policy—while the main focus turned to the jurisdictional dispute.
Procedurally, the case now returns to the trial court to determine whether the temporary injunction now more than a year old should be made permanent while the judge considers the merits of the arguments–and if so, whether it should be changed.
However, there has been a common expectation among specialists in federal employment law that the dispute could ultimately end up before the U.S. Supreme Court. While the court has discretion over which cases it will accept, one common reason for stepping into a dispute is to resolve direct conflicts between appeals courts—one of which now exists between the Fifth Circuit and two other circuit courts.
Should the high court accept the case, arguments likely would not be heard until its session that starts in October, though, and a decision could lie many months after that.
Meanwhile there has been speculation about the White House withdrawing the mandate, given that it already has announced that it will lift the national emergency and health emergency designations for the pandemic on May 11. Such a move could bring an end to the cases without a firm conclusion on the underlying legal issues.
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