Court Hits Pause on Vaccine Mandate for DOD, Other Federal Employees

Updated: 4:11 p.m.

A federal court in Texas has issued an injunction against President Biden’s COVID-19 vaccine mandate for the federal workforce, pausing implementation of a requirement for more than 2 million civilian servants. 

The Biden administration has already had sweeping success with the mandate, as most agencies have seen virtually their entire workforces come into compliance. Still, federal offices across the country were just beginning to move forward with suspensions—which could eventually result in firings—for those who did not meet the requirements. Biden issued the mandate by executive order in September.    

Judge Jeffrey Brown, appointed by President Trump to the U.S. Court for the Southern District of Texas, said the case was not about whether individuals should be vaccinated or even about federal power generally. 

“It is instead about whether the president can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment,” Brown wrote. “That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.” 

The Supreme Court last week struck down a Biden order that would have required private sector employers with more than 100 workers, and the U.S. Postal Service, to test or vaccinate their employees. The federal employee case was brought by Feds for Medical Freedom, which filed three different lawsuits against the mandate, as well as an American Federation of Government Employees council that represents workers in the Homeland Security Department's Federal Protective Service. 

The Biden administration immediately filed an appeal to the Fifth Circuit court. White House Press Secretary Jen Psaki said the mandate had already led to 98% of federal employees getting vaccinated, which she called a “remarkable number.” 

“Obviously we are confident in our legal authority here,” Psaki said. 

Following the Supreme Court’s ruling in the private employers case last week, Brown had tasked both Feds for Medical Freedom and the Biden administration with issuing new briefs to reflect the decision. 

The Centers for Medicare and Medicaid Services mandate for health care workers at facilities that receive federal funding that the court upheld was much more narrow in focus, Feds for Medical Freedom argued, whereas the Occupational Safety and Health Administration lacked clear statutory authority for its broad rule focused on the private sector. Like the OSHA rule that the Supreme Court struck down, the federal employee mandate applied to every worker indiscriminately. Because the requirement applies regardless of an individual’s job, Feds for Medical Freedom argued the court’s finding that the risk of COVID-19 is untethered from the workplace applied to its case as well. The pandemic is part of the hazards of daily life, they said, again quoting the court’s majority ruling, and both OSHA and the president have never issued such mandates before.

The Biden administration had pushed back in a new filing this week, saying the federal government, like any employer, can choose to impose a mandate on its employees. 

“The president possesses independent constitutional authority to act as CEO of the executive branch, even absent confirming statutory authority from Congress,” Justice Department officials in Texas wrote. They added the OSHA rule affected 84 million private sector employees, whereas the president’s mandate is aimed at a much smaller group. 

It is “not at all surprising” the president has never issued such a mandate previously, the officials said, and restricting the executive branch’s ability to respond to novel circumstances would prevent it from dealing with the pandemic at all. They further suggested that President Reagan’s drug-testing mandate for feds was an example of the executive branch responding to a new epidemic of drug use. The officials also said the Merit Systems Protection Board, rather than the federal circuit, would be the appropriate forum to resolve the case.

In his ruling, Brown noted that Friday was the first day that some employee suspensions were scheduled to take effect. Agencies are currently sorting through the hundreds of thousands of requests for medical and religious exemptions to the mandate and have just started issuing some of those decisions. 

Brown argued the mandate amounted to a “Hobson’s choice” between their “jobs and their jabs.” 

“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,” he said. 

The judge further suggested the high vaccination rate within the federal workforce means his ruling will have little impact on public safety and the public could face even worse consequences if agencies are allowed to fire their employees. 

“The government has not shown that an injunction in this case will have any serious detrimental effect on its fight to stop COVID-19,” Brown said. “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.”

Brown rejected the government’s assertion that employees should go to MSPB, as they would only be able to do so after a suspension or firing is issued. Waiting for enforcement denies those employees “meaningful review,” the judge said. He further argued that of the statutory authorities the government pointed to defend the president’s authority to issue the mandate, “none does the trick.” The Biden administration’s interpretation of existing law would allow the president to prescribe federal employees activities outside the context of their employment, Brown said. He added the Supreme Court’s ruling in the OSHA case made clear the pandemic and employees' vaccination status is not “workplace conduct” and a mandate exceeds the president’s constitutional powers.  

An OMB spokesperson reiterated the administration is confident in its authority and declined to say it would be pausing enforcement and disciplinary actions. 

"For months, the federal government has been implementing its vaccination requirement," the spokesperson said. "It is doing so with no disruptions to operations and in a way that increased vaccination rates."

Marcus Thornton, a foreign service officer at the State Department and president of Feds for Medical Freedom, said their “fight is far from over” and the group will pursue “every lawful avenue available” to strike down the mandate. The group is expecting thousands of its members to join a march in Washington on Jan. 23.  

“Today’s decision by Judge Brown is a victory for the thousands of men and women who want to serve their government without sacrificing their individual rights,” Thornton said. “The 6,000-plus members of Feds for Medical Freedom want nothing more than to continue their service to this country without being subjected to unconstitutional mandates.”