Issue Briefs

Image: Natalia Sem/

Following are key sections from the Court of Appeals for the Fifth Circuit ruling on the federal employee coronavirus vaccination mandate examining the rights federal employees have under the Civil Service Reform Act.

Majority Opinion


The CSRA established “the comprehensive and exclusive procedures for settling work-related controversies between federal civil-service employees and the federal government.” Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991). Before the CSRA, administrative and judicial review under the civil service system was “haphazard,” resulting from the “outdated patchwork of statutes and rules built up over almost a century.” United States v. Fausto, 484 U.S. 439, 444 (1988) (quoting S. Rep. No. 95–969, at 3 (1978)). This pre-existing system drew “widespread” criticism, including that it produced inconsistent judicial decisions on similar matters due to the “concurrent jurisdiction, under various bases of jurisdiction, of district courts in all Circuits and the Court of Claims.” Id. at 445. In response, Congress enacted the CSRA, which imposed “an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration.” Id.

“Under the [CSRA], certain federal employees may obtain administrative and judicial review of specified adverse employment actions.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 5 (2012). “Subchapter II of Chapter 75 governs review of major adverse actions taken against employees ‘for such cause as will promote the efficiency of the service.’” Id. (quoting 5 U.S.C. §§ 7503(a), 7513(a)). These provisions apply to employees in the competitive service and to certain excepted service employees.2 5 U.S.C. § 7511(a)(1). They provide procedural protections when eligible employees face major adverse actions, which includes removals, suspensions for more than fourteen days, pay or grade reductions, and furloughs lasting thirty days or less. Id. § 7512.

The CSRA distinguishes between employees facing “proposed” adverse action and those who have already suffered adverse action. See 5 U.S.C. § 7513(b), (d). Employees facing “proposed” action are entitled to notice, an opportunity to respond, legal representation, and written reasons supporting the employing agency’s decision. Id. § 7513(b). Once an employing agency finalizes an adverse action, however, the aggrieved employee may appeal to the Merit Systems Protection Board (“MSPB”). Id. § 7513(d). If the employee prevails on appeal, the MSPB can order the agency to comply with its decision and award “reinstatement, backpay, and attorney’s fees.” Elgin, 567 U.S. at 6 (citing 5 U.S.C. §§ 1204(a)(2), 7701(g)). “An employee who is dissatisfied with the MSPB’s decision is entitled to judicial review in the United States Court of Appeals for the Federal Circuit” under § 7703. Id. at 6. The Federal Circuit’s jurisdiction over such appeals is “exclusive.” 28 U.S.C. § 1295(a)(9). If an employee appeals to the Federal Circuit, then that court must “review the record and hold unlawful and set aside any agency action, findings, or conclusions” that are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c)(1)–(3).

This remedial scheme is “elaborate,” establishing “in great detail the protections and remedies applicable to” adverse personnel actions against federal employees, “including the availability of administrative and judicial review.” Fausto, 484 U.S. at 443. The Supreme Court has thus explained that, “[g]iven the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court.” Elgin, 567 U.S. at 11–12.

In Elgin, the Court considered an attempt by former federal employees to “carve out an exception to CSRA exclusivity for facial or as-applied constitutional challenges to federal statutes.” Id. at 12. In rejecting that attempt, the Court emphasized that the CSRA’s text and structure demonstrated that “[t]he availability of administrative and judicial review under the CSRA generally turns on the type of civil service employee and adverse employment action at issue,” not whether a challenged action is constitutionally authorized. Id. at 12–13. The CSRA’s purpose—to “creat[e] an integrated scheme of review”—further confirmed that “the statutory review scheme is exclusive.” Id. at 13. Thus, the Court concluded that “the CSRA provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action by arguing that a federal statute is unconstitutional.” Id. at 5. This court has also recognized that the CSRA precludes district court adjudication of federal statutory and constitutional claims.

Application of the CSRA

The Government contends that, under Elgin, the district court erroneously held that the CSRA does not apply until the plaintiffs suffer an adverse employment action. It urges that adopting the district court’s logic would allow federal employees to circumvent the CSRA by filing suit before their employer disciplines or discharges them, thereby “gut[ting] the statutory scheme.” This, it argues, would be inconsistent with Congress’s intent to limit judicial review through the CSRA. See id. at 11. The Government acknowledges that the Elgin plaintiffs, unlike the current plaintiffs, had already suffered an adverse employment action—termination—when they filed suit. But it disputes that Elgin “turned on that distinction.” Meanwhile, the plaintiffs, like the district court, attempt to distinguish Elgin and other cases applying the CSRA’s jurisdictional provisions by arguing that those cases concerned challenges to individual adverse employment actions.


The CSRA’s “text, structure, and purpose” support the Government’s position. See id. at 10. Starting with the text and structure, the CSRA guarantees an MSPB appeal to only “[a]n employee against whom an action is taken.” 5 U.S.C. § 7513(d). In contrast, “[a]n employee against whom an action is proposed is entitled to” the protections listed above. Id. § 7513(b). The Supreme Court recognized as much in Elgin when it observed that the CSRA offers an employee the right to a hearing before the MSPB “[i]f the agency takes final adverse action against the employee” and that the statute separately “sets out the procedures due an employee prior to final agency action.” Elgin, 567 U.S. at 6, 11. Critically, in this case, any adverse action against the plaintiffs remains “proposed.” They are thus entitled to “notice, representation by counsel, an opportunity to respond, and a written, reasoned decision from the agency” under § 7513(b), not administrative review under § 7513(d). Id. at 6. In other words, the plaintiffs are “employees to whom the CSRA denies statutory review.” Id. at 11 (emphasis in original). Congress intended “to entirely foreclose judicial review to” such employees. Id.; Griener, 900 F.3d at 703.

This construction is consonant with Congress’s purpose in enacting the CSRA, which was to establish “an integrated scheme of review.” Elgin, 567 U.S. at 14. As the facts of this case reveal, granting the plaintiffs extra-statutory review would “seriously undermine[]” that goal. See id. Allegedly, the plaintiffs who are not pursuing exception requests are “threatened with imminent discipline unless they give in and get vaccinated.” The district court concluded that those plaintiffs had ripe claims because they “face an inevitable firing.” Feds for Med. Freedom I, — F. Supp. 3d at —-, 2022 WL 188329, at *3. It added that “[m]any of these plaintiffs already have received letters from their employer agencies suggesting that suspension or termination is imminent, have received letters of reprimand, or have faced other negative consequences.” Id. Accordingly, these plaintiffs’ terminations were “actual and imminent, not conjectural or hypothetical.” Id. (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). That finding, which the Government does not dispute, underscores that by filing this suit on the eve of receiving discipline, the plaintiffs seek to circumvent the CSRA’s exclusive review scheme. Permitting them to do so would “reintroduce the very potential for inconsistent decisionmaking and duplicative judicial review that the CSRA was designed to avoid.” Elgin, 567 U.S. at 14. We therefore decline their invitation.

Next, the plaintiffs contend that, even if Congress intended to limit judicial review through the CSRA, Congress did not intend to limit review of their claims. Specifically, they suggest that this court should “presume that Congress [did] not intend to limit jurisdiction” here because (1) “a finding of preclusion could foreclose all meaningful judicial review,” (2) their suit is “wholly collateral to [the CSRA’s] review provisions,” and (3) their “claims are outside the agency’s expertise.” See Cochran v. U.S. Sec. & Exch. Comm’n, 20 F.4th 194, 206 (5th Cir. 2021) (en banc) (quotation omitted). The district court agreed, holding that “[t]o deny the plaintiffs the ability to challenge the mandate pre-enforcement, in district court, is to deny them meaningful review.” Feds for Med. Freedom I, — F. Supp. 3d at —-, 2022 WL 188329, at *3. On appeal, the Government maintains that these arguments are meritless.

We agree with the Government. The plaintiffs assert that district court review is necessary because proceeding through the CSRA’s remedial scheme could foreclose all meaningful review. But the CSRA “merely directs that judicial review . . . shall occur in the Federal Circuit,” which is “fully capable of providing meaningful review.” Elgin, 567 U.S. at 10. In Elgin, the Supreme Court held that “even if [the MSPB] was incapable of adjudicating a constitutional claim, meaningful judicial review was still available in the court of appeals.” Cochran, 20 F.4th at 208. That was because the plaintiffs “sought substantive relief”—reinstatement, backpay, and attorney’s fees—that “would have . . . fully redressed” the harm they suffered. Id. at 208–09. In contrast, where a plaintiff asserts a claim for “structural relief” from a remedial scheme, that scheme will be declared inadequate. Id. at 208 (citing Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 490 (2010)). The plaintiffs here seek to avoid discipline for failing to comply with Executive Order 14043. That is a claim for substantive, not structural, relief. Indeed, the MSPB can order reinstatement and backpay to any nonexempt plaintiffs who are disciplined for refusing to receive a COVID-19 vaccine. Elgin, 567 U.S. at 6 (citing 5 U.S.C. §§ 1204(a)(2), 7701(g)). And “[r]emedies for discharge under the federal civil service laws are . . . an adequate remedy for individual wrongful discharge after the fact of discharge.” Garcia v. United States, 680 F.2d 29, 31 (5th Cir. 1982).

The plaintiffs also argue that the CSRA will deny meaningful review to any of them who comply with Executive Order 14043 because they will never suffer an adverse employment action. However, the plaintiffs could have challenged an agency’s proposed action against them before filing this suit and certainly before getting vaccinated. Specifically, they could have filed a complaint with the Office of Special Counsel (“OSC”), an independent agency, see 5 U.S.C. § 1211, asserting that Executive Order 14043 constitutes a “prohibited personnel practice” affecting a “significant change in duties, responsibilities, or working conditions.”4 Id. § 2302(a)(1), (a)(2)(A)(xii). The CSRA prohibits agencies from taking any “personnel action” that treats employees “without . . . proper regard for their privacy and constitutional rights.” Id. §§ 2301(b)(2), 2302(b)(12). If OSC receives a complaint and determines that a “prohibited personnel practice has occurred,” it is authorized to report that finding and to petition the MSPB for corrective action. Id. § 1214(b)(2)(B)–(C). An employee who is harmed by the MSPB’s disposition of the petition can appeal to the Federal Circuit. Id. §§ 1214(c), 7703(b)–(c). There is no dispute that the plaintiffs have not attempted to avail themselves of this potential CSRA remedy, which could provide meaningful review.

We also reject the plaintiffs’ argument that their claims are wholly collateral to the CSRA scheme. “[W]hether a claim is collateral to the relevant statutory-review scheme depends on whether that scheme is intended to provide the sort of relief sought by the plaintiff.” Cochran, 20 F.4th at 207. The plaintiffs emphasize that they are not challenging any individual employment actions or prior discipline, which they say is “water under the bridge.” Instead, the plaintiffs purportedly request only to have Executive Order 14043 declared void. But although the plaintiffs are not attempting to reverse any previous discipline, their challenge “ultimately [seeks] to avoid compliance with”—and discipline for violating—the Order. Id. at 207. Put differently, this case is “the vehicle by which they seek to” avoid imminent “adverse employment action,” which “is precisely the type of personnel action regularly adjudicated by the MSPB and the Federal Circuit within the CSRA scheme.” Elgin, 567 U.S. at 22. At bottom, the relief the plaintiffs seek is, in effect, to avoid discharge for refusing to comply with Executive Order 14043. This sort of employment-related relief is “precisely the kind[] of relief that the CSRA empowers the MSPB and the Federal Circuit to provide.” Id.

Finally, the plaintiffs’ claims do not exceed the MSPB’s expertise. To show otherwise, the plaintiffs state only that their claims involve constitutional issues and “questions of administrative law, which the courts are at no disadvantage in answering.” See Cochran, 20 F.4th at 207–08 (quoting Free Enter. Fund, 561 U.S. at 491). But the Supreme Court has recognized that “many threshold questions . . . may accompany a constitutional claim” and that “the MSPB can apply its expertise” to those questions. Elgin, 567 U.S. at 22. Further, there are often “preliminary questions unique to the employment context [that could] obviate the need to address the constitutional challenge.” Id. at 22–23. For example, an employing agency may only take an adverse action against an employee “for such cause as will promote the efficiency of the service.” 5 U.S.C. §§ 7503(a), 7513(a). If the MSPB, reviewing an employee’s appeal, determines that the employee suffered adverse action inconsistent with that requirement, it could order corrective action on that basis and avoid any other issues. Additionally, “an employee’s appeal may involve other statutory or constitutional claims that the MSPB routinely considers,” any of which “might fully dispose of the case” if the employee receives a favorable decision from the MSPB. Elgin, 567 U.S. at 23. The MSPB thus has expertise that it can “br[ing] to bear” on the plaintiffs’ claims, and “we see no reason to conclude that Congress intended to exempt such claims from exclusive review before the MSPB and the Federal Circuit.” See id.


Dissenting Opinion

CSRA, enacted in 1978, “comprehensively overhauled the civil service system creating an elaborate new framework for evaluating adverse personnel actions against [federal employees]”. United States v. Fausto, 484 U.S. 439, 443 (1988) (alteration in original) (citation omitted). Prior to CSRA’s enactment, review of personnel actions was “haphazard”, “lengthy”, and “outdated” to the point that “managers [in the civil service] often avoid[ed] taking disciplinary action against employees even when it was clearly warranted”. Id. at 444–45 (alteration in original) (citation omitted). Congress responded with CSRA, which created “an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration”. Id. at 445.

Title 5 of the United States Code governs Government Organization and Employees and contains CSRA. Part III, 5 U.S.C. § 2101 et seq., governs Employees, and Subpart F of Part III, 5 U.S.C. § 7101 et seq., covers Labor-Management and Employee Relations. As discussed in Fausto, three sections within CSRA govern “personnel actions”: Chapter 43, 5 U.S.C. §4301 et seq., “governs personnel actions based on unacceptable job performance”; Chapter 23, 5 U.S.C. § 2301 et seq., “establishes the principles of the merit system of employment”; and Chapter 75, 5 U.S.C. § 7501 et. seq., “governs adverse action taken against employees for the efficiency of the service”. Fausto, 484 U.S. at 446–47 (citation omitted).

Chapter 75, in Subpart F, includes, inter alia, adverse actions: suspension for 14 days or less; removal; suspension for more than 14 days; reduction in grade or pay; and furlough for 30 days or less. 5 U.S.C. §§ 7501–43. Along that line, Subchapters 1, 2, and 5 include an “actions covered” section. 5 U.S.C. §§ 7502, 7512, 7542. Chapter 75 Subchapter 2, 5 U.S.C. §§ 7511–15, is pertinent to this case. It “governs . . . major adverse actions taken against employees”. Elgin v. Dep’t of Treasury, 567 U.S. 1, 5 (2012). The covered adverse actions are: removal; suspension for more than 14 days; reduction in grade or pay; and furlough for 30 days or less. 5 U.S.C. § 7512.

The EO’s enactment, however, does not constitute an adverse action subject to CSRA. The case at hand is instead a pre-enforcement challenge to a government-wide policy, imposed by the President, that would affect the 2.1 million federal civilian workers, including the 6,000 members of Feds for Medical Freedom. Relief plaintiffs seek does not fall within the purpose of CSRA. Enacting the EO 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.

Seeking to rely upon Elgin—the primary opinion by which the majority attempts to find supporting authority—the majority holds at 9: CSRA’s “text, structure, and purpose” support the Government’s position. But, as noted by the majority at 9, plaintiffs in Elgin had already received adverse action (termination) when they filed suit. Elgin, 567 U.S. at 7. Further, plaintiffs in Elgin were terminated for violating the Military Selective Service Act, requiring certain male citizens to register for the Selective Service. Id. at 6–7. Elgin, therefore, pertains only to plaintiffs whose employment was terminated after they knowingly violated a statute, whereas here, plaintiffs have not received adverse action, but are instead being told they could be, inter alia, terminated if they do not get vaccinated as required by the EO.

The majority at 9 also states: In Elgin, the Court recognized that employees “against whom an action is proposed” still fall under CSRA, focusing on the language that it, “sets out the procedures due an employee prior to final agency action”. Elgin, 567 U.S. at 11 (citing 5 U.S.C. § 7513). But, the Court in Elgin also noted: “When an employing agency proposes a covered action against a covered employee, . . . CSRA gives the employee the right to notice, representation by counsel, an opportunity to respond, and a written reasoned decision from the agency”. Id. at 6 (emphasis added) (citing 5 U.S.C. § 7513(b)).

Section 7513 does not apply to plaintiffs. First, it applies to federal employees facing proposed actions by “an employing agency”. 5 U.S.C. § 7513. CSRA’s language, which the majority references at 9, also refers to action taken by an “agency”. See id. Here, there is no agency action. Rather, the President is attempting to impose a sweeping mandate against the federal civilian workforce. Again, no adverse action has been proposed or taken by an agency. In short, Elgin does not control the case at hand.

Section 7513 references individual employees; here, the President seeks to require an entire class of employees to be vaccinated or be subject to an adverse action. Simply put, CSRA does not cover pre-enforcement employment actions, especially concerning 2.1 million federal civilian employees. The district court, therefore, had subject-matter jurisdiction to hear plaintiffs’ claims.

Wait Continues for Clarity on Return of Vaccine Mandate

Return of Vaccine Mandate Would Restart Stalled Processes

OPM Acts to ‘Bolster’ Unions in Federal Workplace

Expand Union Opportunities to Reach Employees, OPM Tells Agencies

DoD Strikes Vaccine Mandate Policies from Safety Policy – For Now

Report Cites Fatigue, Burnout of DoD Medical Workers Due to Pandemic

Parental Bereavement Leave Authority Finalized

Decision to Retire Not Just a Matter of Numbers

House-Passed Bill Would Exclude Marijuana Use in Clearance Decisions

FERS Retirement Guide 2022