Following are the key sections of a ruling temporarily blocking the Coronavirus vaccination mandate for federal employees in which the court said that while it was not reaching a final conclusion, it did not find support for the mandate in civil service law.
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. 1. Threat of irreparable injury Because injunctive relief is an extraordinary tool to be wielded sparingly, the court should be convinced the plaintiffs face irreparable harm before awarding it. See Booth v. Galveston Cnty, No. 3:18-CV-00104, 2019 WL 3714455, at *7 (S.D. Tex. Aug. 7, 2019), R&R adopted as modified, 2019 WL 4305457 (Sept. 11, 2019). The court is so convinced.
As noted above, the Fifth Circuit has already determined that the Hobson’s choice employees face between “their job(s) and their jab(s)” amounts to irreparable harm. OSHA, 17 F.4th at 618. Regardless of what the conventional wisdom may be concerning vaccination, no legal remedy adequately protects the liberty interests of employees who must choose between violating a mandate of doubtful validity or consenting to an unwanted medical procedure that cannot be undone.
The Fifth Circuit has also held that the reputational injury and lost wages employees experience when they lose their jobs “do not necessarily constitute irreparable harm.” Burgess v. Fed. Deposit Ins. Corp., 871 F.3d 297, 304 (5th Cir. 2017). But when an unlawful order bars those employees from significant employment opportunities in their chosen profession, the harm becomes irreparable. Id.
The plaintiffs have shown that in the absence of preliminary relief, they are likely to suffer irreparable harm.
Likelihood of success on the merits
The court does not decide today the ultimate issue of whether the federal-worker mandate is lawful. But to issue a preliminary injunction, it must address whether the claim is likely to succeed on the merits. The plaintiffs’ arguments fall into two categories: (1) that the President’s action was ultra vires as there is no statute authorizing him to issue the mandate and the inherent authority he enjoys under Article II is not sufficient, and (2) that the agencies’ implementation of his order violates the Administrative Procedures Act (APA). Each argument will be addressed in turn.
The government points to three statutory sources for the President’s authority to issue the federal-worker mandate: 5 U.S.C. §§ 3301, 3302, and 7301. None of them, however, does the trick.
Section 3301, by its own terms, applies only to “applicants” seeking “admission . . . into the civil service.” 5 U.S.C. § 3301. The statutory text makes no reference to current federal employees (like the plaintiffs). And other courts have already held that whatever authority the provision does provide is not expansive enough to include a vaccine mandate. See, e.g., Georgia, 2021 WL 5779939, at *10; Kentucky v. Biden, No. 3:21-CV-55, 2021 WL 5587446, at *7 (E.D. Ky. Nov. 30, 2021), aff’d, No. 21-6147, 2022 WL 43178 (6th Cir. Jan. 5, 2022).
Section 3302 provides that the “President may prescribe rules governing the competitive service.” 5 U.S.C. § 3302. That language sounds broad until one reads the next sentence: “The rules shall provide, as nearly as conditions of good administration warrant, for . . .(1) necessary exceptions of positions from the competitive service; and (2) necessary exceptions from the provisions of sections 2951, 3304(a), 3321, 7202, and 7203 of this title.” Id. When the cross-referenced provisions are checked, it becomes evident that the “rules” the President may prescribe under § 3302 are quite limited. For example, he may exempt certain employees from civil-service rules and from certain reports and examinations, and he may prohibit marital and disability discrimination within the civil service. But not even a generous reading of the text provides authority for a vaccine mandate.
The final statutory authority on which the government relies is § 7301, which provides in its entirety: “The President may prescribe regulations for the conduct of employees in the executive branch.” 5 U.S.C. § 7301. According to the government, “the act of becoming vaccinated” is “plainly ‘conduct’” within the meaning of the statute. Dkt. 21 at 27.
But the plaintiffs argue that rather than regulate “conduct,” the federal worker mandate compels employees to assume a vaccinated “status,” and “one that is untethered to job requirements, no less.” Dkt. 3 at 12. Moreover, the plaintiffs contend, even if becoming vaccinated is “conduct,” it is not “workplace conduct,” which is all that § 7301 reasonably authorizes the President to regulate. Dkt. 23 at 12.
Assuming that getting vaccinated is indeed “conduct,” the court agrees with the plaintiffs that under § 7301, it must be workplace conduct before the President may regulate it. Any broader reading would allow the President to prescribe, or proscribe, certain private behaviors by civilian federal workers outside the context of their employment. Neither the plain language of § 7301 nor any traditional notion of personal liberty would tolerate such a sweeping grant of power.
So, is submitting to a COVID-19 vaccine, particularly when required as a condition of one’s employment, workplace conduct? The answer to this question became a lot clearer after the Supreme Court’s ruling in NFIB earlier this month. There, the Court held that the Occupational Safety and Health Act of 1970, 29 U.S.C. § 15 et seq., allows OSHA “to set workplace safety standards,” but “not broad public health measures.” NFIB, 595 U.S. ___ slip op. at 6. Similarly, as noted above, § 7301 authorizes the President to regulate the workplace conduct of executive-branch employees, but not their conduct in general. See 5 U.S.C. § 7301. And in NFIB, the Supreme Court specifically held that COVID-19 is not a workplace risk, but rather a “universal risk” that is “no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” NFIB, 595 U.S. ___ slip op. at 6. Accordingly, the Court held, requiring employees to get vaccinated against COVID-19 is outside OSHA’s ambit. Id. Applying that same logic to the President’s authority under § 7301 means he cannot require civilian federal employees to submit to the vaccine as a condition of employment.
The President certainly possesses “broad statutory authority to regulate executive branch employment policies.” Serv. Emps. Int’l Union Loc. 200 United v. Trump, 419 F. Supp. 3d 612, 621 (W.D.N.Y. 2019), aff’d, 975 F.3d 150 (2d Cir. 2020). But the Supreme Court has expressly held that a COVID-19 vaccine mandate is not an employment regulation. And that means the President was without statutory authority to issue the federal worker mandate.
Though the government argues §§ 3301, 3302, and 7301 evince the authority the President wields to regulate the federal workforce, it also contends that statutory authorization is wholly unnecessary. Dkt. 21 at 26– 27. Article II, the government maintains, gives the President all the power he needs. Id. But the government points to no example of a previous chief executive invoking the power to impose medical procedures on civilian federal employees. As Chief Judge Sutton of the Sixth Circuit has noted, no arm of the federal government has ever asserted such power. See In re MCP No. 165, OSHA Interim Final Rule: COVID-19 Vaccination & Testing, 20 F.4th 264, 289 (6th Cir. 2021) (Sutton, C.J., dissenting from denial of initial rehearing en banc) (“A ‘lack of historical precedent’ tends to be the most ‘telling indication’ that no authority exists.”). The government relies on Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010), but that case concerns certain “Officers of the United States who exercise significant authority pursuant to the laws of the United States,” not federal employees in general. Id. at 486 (cleaned up). Moreover, the Free Enterprise Fund Court itself acknowledges that the power Article II gives the President over federal officials “is not without limit.” Id. at 483.
And what is that limit? As the court has already noted, Congress appears in § 7301 to have limited the President’s authority in this field to workplace conduct. But if the court is wrong and the President indeed has authority over the conduct of civilian federal employees in general—in or out of the workplace—“what is the logical stopping point of that power?” Kentucky v. Biden, No. 21-6147, 2022 WL 43178, at *15 (6th Cir. Jan. 5, 2022). Is it a “de facto police power”? Id. The government has offered no answer—no limiting principle to the reach of the power they insist the President enjoys. For its part, this court will say only this: however extensive that power is, the federal-worker mandate exceeds it.
Balance of equities and the public interest
Finally, the court weighs the plaintiffs’ interest against that of the government and the public. When the government is the party against whom an injunction is sought, the consideration of its interest and that of the public merges. Nken v. Holder, 556 U.S. 418, 435 (2009).
The government has an undeniable interest in protecting the public against COVID-19. Through the federal-worker mandate, the President hopes to slow the virus’s spread. But an overwhelming majority of the federal workforce is already vaccinated. According to a White House press release, even for the federal agency with the lowest vaccination rate, the portion of employees who have received at least one COVID-19 vaccine dose exceeds 88 percent. OFF. OF MGMT. & BUDGET, Update on Implementation of COVID-19 Vaccination Requirement for Federal Employees (Dec. 9, 2021). 7 The government has not shown that an injunction in this case will have any serious detrimental effect on its fight to stop COVID-19. Moreover, any harm to the public interest by allowing federal employees to remain unvaccinated must be balanced against the harm sure to come by terminating unvaccinated workers who provide vital services to the nation.
While vaccines are undoubtedly the best way to avoid serious illness from COVID-19, there is no reason to believe that the public interest cannot be served via less restrictive measures than the mandate, such as masking, social distancing, or part- or full-time remote work. The plaintiffs note, interestingly, that even full-time remote federal workers are not exempt from the mandate. Stopping the spread of COVID-19 will not be achieved by overbroad policies like the federal-worker mandate.
Additionally, as the Fifth Circuit has observed, “[t]he public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions.” OSHA, 17 F.4th at 618. The court added that the government has no legitimate interest in enforcing “an unlawful” mandate. Id. All in all, this court has determined that the balance of the equities tips in the plaintiffs’ favor, and that enjoining the federal-worker mandate is in the public interest.