Memorandum Opinion and Order — Feds for Medical Freedom v. Biden

Record facts

Full text

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IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF TEXAS 
GALVESTON DIVISION 
 
═════════════ 
No. 3:21-cv-356 
═════════════ 
 
FEDS FOR MEDICAL FREEDOM, ET AL., PLAINTIFFS, 
 
v. 
 
JOSEPH R. BIDEN, JR., ET AL., DEFENDANTS. 
 
═══════════════════════════════ 
MEMORANDUM OPINION AND ORDER 
═══════════════════════════════ 
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE: 
 
The plaintiffs have moved the court to preliminarily enjoin the 
enforcement of two executive orders by the President. The first, Executive 
Order 14042, is already the subject of a nationwide injunction. Because that 
injunction protects the plaintiffs from imminent harm, the court declines to 
enjoin the first order. The second, Executive Order 14043, amounts to a 
presidential mandate that all federal employees consent to vaccination 
against COVID-19 or lose their jobs. Because the President’s authority is not 
that broad, the court will enjoin the second order’s enforcement.  
 
The court notes at the outset that this case is not about whether folks 
should get vaccinated against COVID-19—the court believes they should. It 
United States District Court
Southern District of Texas
ENTERED
January 21, 2022
Nathan Ochsner, Clerk

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is not even about the federal government’s power, exercised properly, to 
mandate vaccination of its employees. 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. That, under the current state of the law as 
just recently expressed by the Supreme Court, is a bridge too far. 
I 
Background 
 
In response to the COVID-19 pandemic, the Biden Administration has 
put out four mandates requiring vaccination in various contexts. Earlier this 
month, the Supreme Court ruled on challenges to two of those mandates. For 
one, a rule issued by the Occupational Safety and Health Administration 
(OSHA) concerning businesses with 100 or more employees, the Court 
determined the plaintiffs would likely succeed on the merits and so granted 
preliminary relief. See Nat’l Fed’n Indep. Bus. v. OSHA, 595 U.S. ___ (2022) 
[hereinafter NFIB]. For the second, a rule issued by the Secretary of Health 
and Human Services concerning healthcare facilities receiving Medicare and 
Medicaid funding, the Court allowed the mandate to go into effect. See Biden 
v. Missouri, 595 U.S. ___ (2022). 

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In this case, the plaintiffs challenge the other two mandates. One 
compels each business contracting with the federal government to require its 
employees to be vaccinated or lose its contract. Exec. Order No. 14042, 
Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. 
Reg. 50,985 (Sept. 9, 2021). Because that order has been enjoined 
nationwide, Georgia v. Biden, No. 1:21-CV-163, 2021 WL 5779939, at *12 
(S.D. Ga. Dec. 7, 2021), this court declines to grant any further preliminary 
relief. The other mandate requires that all federal employees be vaccinated—
or obtain a religious or medical exemption—or else face termination. See 
Exec. Order No. 14043, Requiring Coronavirus Disease 2019 Vaccination for 
Federal Employees, 86 Fed. Reg. 50,989 (Sept. 9, 2021) [hereinafter federal-
worker mandate]. 
 
The federal-worker mandate was issued last year on September 9. At 
first, federal agencies were to begin disciplining non-compliant employees at 
the end of November. But as that date approached, the government 
announced that agencies should wait until after the new year. See Rebecca 
Shabad, et. al, Biden administration won’t take action against unvaccinated 
federal workers until next year, NBC News (Nov. 29, 2021).1 The court 
 
 
1 Available at https://www.nbcnews.com/politics/white-house/biden-
administration-delay-enforcement-federal-worker-vaccine-mandate-until-next-
n1284963. 

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understands that the disciplining of at least some non-compliant employees 
is now imminent. 
 
Before this case, the federal-worker mandate had already been 
challenged in several courts across the country, including this one. See 
Rodden v. Fauci, No. 3:21-CV-317, 2021 WL 5545234 (S.D. Tex. Nov. 27, 
2021). Most of those challenges have fallen short due to procedural missteps 
by the plaintiffs or a failure to show imminent harm. See, e.g., McCray v. 
Biden, No. CV 21-2882 (RDM), 2021 WL 5823801, at *5–9 (D.D.C. Dec. 7, 
2021) (denied because plaintiff tried to directly enjoin the President and did 
not have a ripe claim). 
 
This case was filed by Feds for Medical Freedom, Local 918, and 
various individual plaintiffs on December 21. Dkt. 1. The next day, the 
plaintiffs moved for a preliminary injunction against both mandates. See 
Dkt. 3. At a scheduling conference on January 4, the court announced it 
would not consider preliminary relief on Executive Order No. 14042 while 
the nationwide injunction was in effect. Dkt. 14, Hrg. Tr. 7:8–8:11. The court 
then convened a telephonic oral argument on January 13, shortly before the 
Supreme Court ruled on the OSHA and healthcare-worker mandates. See 
Dkt. 31. At that hearing, both sides agreed that the soonest any plaintiff might 
face discipline would be January 21. Dkt. 31, Hrg. Tr. 4:11–5:5. 

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II 
Jurisdiction 
 
The government2 mounts two challenges to the court’s jurisdiction: 
that the Civil Service Reform Act precludes review and that the plaintiffs’ 
claims are not ripe.  
1. Civil Service Reform Act 
 
“Under the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et 
seq., 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). The government maintains that the CSRA, by providing an 
exclusive means of relief, precludes the plaintiffs’ claims in this case. Dkt. 21 
at 8–12. Specifically, the government argues that by challenging the vaccine 
mandate, the plaintiffs are disputing a “significant change in duties, 
responsibilities, or working conditions,” which is an issue exclusively within 
the province of the CSRA. Id. at 11 (quoting 5 U.S.C. § 2302(a)(2)(A)(xii)).  
Unfortunately, the CSRA does not define “working conditions.” But the 
interpretation that courts have given that term would not encompass a 
requirement that employees subject themselves to an unwanted vaccination. 
Rather, “these courts have determined that the term ‘working conditions’ 
 
2 Throughout this memorandum opinion, the court will refer to all the 
defendants, collectively, as “the government.” 

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generally refers to the daily, concrete parameters of a job, for example, hours, 
discrete assignments, and the provision of necessary equipment and 
resources.” Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 367 
(D.D.C. 2020). 
 
The government also argues that the CSRA applies “to hypothetical 
removals or suspensions.” Dkt. 21 at 11 (citing 5 U.S.C. § 7512). But, contrary 
to the government’s suggestion, the statute says nothing about 
“hypothetical” adverse employment actions. See 5 U.S.C. § 7512. Rather, it 
applies to actual discipline, whether that be firings, suspensions, reductions 
in pay, or furloughs. See id. Indeed, neither the Merit Systems Protection 
Board (the administrative body charged with implementing the CSRA) nor 
the Federal Circuit (which hears CSRA appeals) has jurisdiction until there 
is an actual adverse employment action.3 Esparraguera v. Dep't of the Army, 
981 F.3d 1328, 1337–38 (Fed. Cir. 2020). 
 
3 The government relies on two Fifth Circuit cases as support for its 
contention that the CSRA applies to the plaintiffs’ claims in this case. But in both 
of those cases, unlike this one, the plaintiffs had already suffered an adverse 
employment action and were not seeking prospective relief. See Rollins v. Marsh, 
937 F.2d 134, 136 (5th Cir. 1991); Broadway v. Block, 694 F.2d 979, 980–81 (5th 
Cir. 1982). Moreover, the D.C. Circuit has held repeatedly that pre-enforcement 
challenges to government-wide policies—such as the mandates at issue here—do 
not fall within the scheme of the CSRA. See, e.g., Nat'l Treasury Emps. Union v. 
Devine, 733 F.2d 114, 117 n.8 (D.C. Cir. 1984) (allowing “preenforcement judicial 
review of rules” over CSRA objections); Nat’l Fed’n of Fed. Emps. v. Weinberger, 
818 F.2d, 935, 940 n.6 (D.C. Cir. 1987) (discussing the right of federal employees 

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Finally, central to the Supreme Court’s holding in Elgin was the idea 
that employees must be afforded, whether under the CSRA or otherwise, 
“meaningful review” of the discipline they endure. Elgin, 567 U.S. at 10. But 
requiring the plaintiffs to wait to be fired to challenge the mandate would 
compel them to “to bet the farm by taking the violative action before testing 
the validity of the law.” Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 
477, 490 (2010) (cleaned up). As the Fifth Circuit has held, the choice 
between one’s “job(s) and their jab(s)” is an irreparable injury. BST 
Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021). To deny the 
plaintiffs the ability to challenge the mandate pre-enforcement, in district 
court, is to deny them meaningful review. The CSRA does not deprive the 
court of jurisdiction over these claims.  
2. Ripeness 
 
The government also argues that the court lacks jurisdiction because 
none of the plaintiffs’ claims are ripe. See Dkt. 21 at 12–14. Some of the 
plaintiffs’ claims—those who have asserted a religious or medical exemption 
from the mandate—are indeed at least arguably unripe. See Rodden, 2021 
 
to seek injunctive relief through the courts where agencies cannot act); Nat'l 
Treasury Emps. Union v. Horner, 854 F.2d 490, 497 (D.C. Cir. 1988) (allowing 
judicial review for employees who did not have access to the Merit Systems 
Protection Board).   

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WL 5545234, at *2 (the claims of plaintiffs whose exemption claims remain 
unresolved are as yet “too speculative”).4  But the government insists that 
even plaintiffs who have not claimed exemptions do not have ripe claims 
because “federal employees have ample opportunities to contest any 
proposed suspension or removal from employment through a multi-step 
administrative process.” Dkt. 21 at 13. 
 
The government pushes the ripeness doctrine too far. Absent a valid 
exemption request, at least some plaintiffs face an inevitable firing. See, e.g., 
Dkt. 35, Exhibit 39 at 4 (federal employer claiming that employee’s failure to 
provide evidence that he is fully vaccinated “will not be tolerated”). The court 
does not have to speculate as to what the outcome of the administrative 
process will be. Many plaintiffs have not only declined to assert any 
exemption but have also submitted affidavits swearing they will not. The 
court takes them at their word. Many 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 
 
4 There is some dispute as to whether some plaintiffs who have asked for an 
exemption are in danger of being disciplined even while their exemption requests 
are still pending. Though in Rodden this court ruled that plaintiffs who had 
claimed exemptions did not yet face imminent harm, that ruling was based largely 
on the specific representations of the agencies for which those plaintiffs worked 
that there would be no discipline before the exemption claims were resolved. But 
because there are plaintiffs here who have not claimed exemptions, the court need 
not sort out that dispute.  

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other negative consequences. Dkt. 3, Exhibits 15–18, 20), 26–27. To be ripe, 
the threat a plaintiff faces must be “actual and imminent, not conjectural or 
hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). And 
in the context of preliminary relief, “a plaintiff must show that irreparable 
injury is not just possible, but likely.” June Med. Servs. L.L.C. v. Russo, 140 
S. Ct. 2103, 2176 (2020) (Thomas, J., dissenting). Because at least some of 
the plaintiffs have met that burden, the government’s ripeness allegations 
are unfounded. The court has jurisdiction. 
III 
Injunctive Relief 
 
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 

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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. 
  
 
 

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2. 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).5 Each argument will be addressed in turn.  
 
a. 
Ultra vires 
• Statutory authority 
 
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 
 
5 The government maintains that the plaintiffs cannot challenge the 
mandate as ultra vires, leaving the APA as their only vehicle to attack it. An action 
is not ultra vires, the government argues, unless the President “acts ‘without any 
authority whatever.’” Dkt. 21 at 25 (quoting Pennhurst State Sch. & Hosp. v. 
Halderman, 465 U.S. 89, 101-02 n.11 (1984) (cleaned up)). “Because the ‘business’ 
of the ‘sovereign’ certainly encompasses issuing [this] kind of directive,” the 
government contends, there is no room for ultra vires review. Dkt. 21 at 25–26. 
But the government’s argument misinterprets the law concerning judicial review 
of presidential action: executive orders are reviewable outside of the APA. See 
Franklin v. Massachusetts, 505 U.S. 788, 828 (1992) (Scalia, J., concurring) 
(“[r]eview of the legality of Presidential action can ordinarily be obtained in a suit 
seeking to enjoin the officers who attempt to enforce the President's directive”); 
see also Halderman, 465 U.S. at 101 n.11 (“[A]n ultra vires claim rests on the 
officer’s lack of delegated power.”) (citation omitted). 

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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 

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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.  

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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, 

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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. 
• Constitutional authority 
 
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 

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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.  
b. 
APA review 
 
The plaintiffs argue that even if the President had the authority to issue 
the federal-worker mandate, the agencies have violated the APA by 
arbitrarily and capriciously implementing it. Dkt. 3 at 16–25. While the court 
need not reach this question, as it has already determined the federal-worker 
mandate exceeds the President’s authority, the government correctly argues 

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that, if the President had authority to issue this order, this case seems to 
present no reviewable agency action under the APA. The Supreme Court held 
in Franklin v. Massachusetts that executive orders are not reviewable under 
the APA. 505 U.S. 788, 800–01 (1992). But the plaintiffs seem to argue that 
Franklin no longer applies once an agency implements an executive order—
the order itself is then vulnerable to review. That is not the law. To hold 
otherwise would contravene the thrust of the Supreme Court’s holding in 
Franklin by subjecting almost every executive order to APA review. 
 
The plaintiffs are right to argue that agency denials of religious or 
medical exemptions, additional vaccination requirements by agencies apart 
from the federal-worker mandate, or other discretionary additions to the 
executive order would likely be reviewable under the APA’s arbitrary-and-
capricious standard. But the plaintiffs have not challenged any discretionary 
agency action—only the implementation of the federal-worker mandate 
itself.6 Accordingly, there is nothing for the court to review under the APA.   
 
 
 
6 The court is convinced that the best reading of the APA in light of Franklin 
is to allow APA review only when the challenged action is discretionary. See 
William Powell, Policing Executive Teamwork: Rescuing the APA from 
Presidential Administration, 85 MO. L. REV. 71, 121 (2020). 
 

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3. 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.  
 
 
7 Available at https://www.whitehouse.gov/omb/briefing-room/2021/12/ 
09/update-on-implementation-of-covid-%e2%81%a019-vaccination-requirement 
-for-federal-employees/. 

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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.  
IV 
Scope 
 
The court is cognizant of the “equitable and constitutional questions 
raised by the rise of nationwide injunctions.” Dep’t of Homeland Sec. v. New 
York, 140 S. Ct. 599, 601 (2020) (Gorsuch, J., concurring); see also Trump 

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v. Hawaii, 138 S. Ct. 2393, 2428–29 (2018) (Thomas, J., concurring). But it 
does not seem that tailoring relief is practical in this case. The lead plaintiff, 
Feds for Medical Freedom, has more than 6,000 members spread across 
every state and in nearly every federal agency, and is actively adding new 
members. The court fears that “limiting the relief to only those before [it] 
would prove unwieldy and would only cause more confusion.” Georgia, 2021 
WL 5779939, at *12. So, “on the unique facts before it,” the court believes the 
best course is “to issue an injunction with nationwide applicability.” Id. 
*   *   * 
 
The court GRANTS IN PART and DENIES IN PART the plaintiffs’ 
motion for a preliminary injunction. Dkt. 3. The motion is DENIED as to 
Executive Order 14042, as that order is already subject to a nationwide 
injunction. The motion is GRANTED as to Executive Order 14043. All the 
defendants, except the President, are thus enjoined from implementing or 
enforcing Executive Order 14043 until this case is resolved on the merits. 
The plaintiffs need not post a bond. 
Signed on Galveston Island this 21st day of January, 2022 
 
 
 
 
 
 
 
 
 
___________________________ 
JEFFREY VINCENT BROWN 
 
 
 
 
 
 
UNITED STATES DISTRICT JUDGE

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