Fedweek

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UPDATED: Now a week after a federal court ruling has paved the way for the return of the Coronavirus vaccination mandate for the federal workforce, the Biden administration still hasn’t indicated when agencies are to again start enforcement.

The federal appeals court for the Fifth Circuit on April 7 told the federal district court judge in Texas who had imposed the injunction to lift it and to dismiss the case entirely. However, since then there have been no follow-up orders from either of those courts.

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The Safer Federal Workforce Task Force website that provides guidance on the mandate and other virus-related policies in the federal workplace still refers to the injunction as being in effect. Also, there have been reports that the White House has told agencies that there is to be no change pending further court action—with no indication of when that may come.

The uncertainty has raised many questions from employees to which there are at present few answers. The NTEU union for example said it “will be reaching out to our agencies to understand their plans as a result of this decision. NTEU will work to ensure our members are treated fairly and are provided with clear guidance.”

The Fifth Circuit ruling might not necessarily be the final word. Numerous other cases are pending in other courts and 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.

The appeals court ruling reinforced one of the reasons for that point of view: that the case could be used as the vehicle for explicitly defining the situations in which federal employees may or may not take disputes into federal court rather than first having to go to the MSPB. That issue has arisen in other major workplace disputes of recent years, including when a different federal appeals court overruled a district court’s order blocking Trump administration executive orders to strengthen management’s hand in disciplinary and union matters; that case became moot when President Biden revoked those orders just after taking office last year.

In a 2-1 ruling, a panel of the Fifth Circuit cited high court cases holding that by creating the MSPB appeals process, the Civil Service Reform Act “sets out the method for covered employees to obtain review of adverse employment actions.” MSPB decisions are appealable to federal circuit courts, it added, making that process “the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action by arguing that a federal statute is unconstitutional.”

Further, it said, those rights apply only once an agency takes a disciplinary action. For actions that are only proposed—as it said was the case for the complaining employees—the only rights are “notice, representation by counsel, an opportunity to respond, and a written, reasoned decision from the agency” but not review by any third party, it said.

Because of its holding on that “jurisdictional” issue, the court did not address other arguments that were raised, such as whether the order was within President Biden’s powers as head of the federal workforce.

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A dissenting judge said the relief the plaintiffs—Feds for Medical Freedom—were seeking “does not fall within the purpose of CSRA. Enacting the EO [executive order] and then requiring federal civilian employees who may later receive adverse action to seek relief now through CSRA would result in the very type of lengthy and haphazard results CSRA was enacted to prevent.”

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