Court filing

En Banc Brief for Appellees — Feds for Medical Freedom v. Biden (5th Cir.) (5th Cir.)

Filed August 26, 2022 in Feds for Medical Freedom v. Biden; one of 9 filings from this case.

Record facts

Court	U.S. Court of Appeals for the Fifth Circuit (en banc)
Filed	2022-08-26

Full text

No. 22-40043
________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________________________

FEDS FOR MEDICAL FREEDOM; LOCAL 918, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES; HIGHLAND
ENGINEERING, INCORPORATED; RAYMOND A. BEEBE, JR.;
JOHN ARMBRUST; et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, JR., in his official capacity as President of the
United States; THE UNITED STATES OF AMERICA; PETE
BUTTIGIEG, in his official capacity as Secretary of Transportation;
DEPARTMENT OF TRANSPORTATION; JANET YELLEN, in her
official capacity as Secretary of Treasury; et al.,
Defendants-Appellants.
________________________________________

On Appeal from the U.S. District Court
for the Southern District of Texas
________________________________________
EN BANC BRIEF FOR APPELLEES
________________________________________

C. Boyden Gray
R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
Jared M. Kelson
BOYDEN GRAY & ASSOCIATES
801 17th Street NW., Suite 350
Washington, DC 20006
202-706-5488
mccotter@boydengrayassociates.com
Counsel for Plaintiffs-Appellees

i
CERTIFICATE OF INTERESTED PERSONS
Feds for Medical Freedom v. Biden
No. 22-40043
The undersigned counsel of record certifies that the following listed
persons and entities as described in the fourth sentence of Fifth Circuit
Local Rule 28.2.1 have an interest in the outcome of this case. These
representations are made in order that the judges of this Court may
evaluate possible disqualification or recusal.
1.
Highland Engineering, Inc., is a Plaintiff-Appellee. It has no parent
corporation, and no publicly held corporation owns 10% or more of
its stock.
2.
Local 918, American Federation of Government Employees, is a
Plaintiff-Appellee. It has no parent corporation, and no publicly
held corporation owns 10% or more of its stock.
3.
Feds for Medical Freedom, a/k/a Feds 4 Med Freedom, is a Plaintiff-
Appellee. It has no parent corporation, and no publicly held
corporation owns 10% or more of its stock.
4.
Members of Feds for Medical Freedom are interested parties. Feds
for Medical Freedom has over 6,000 members. See L.R. 28.2.1 (“If a

ii
large group of persons or firms can be specified by a generic
description, individual listing is not necessary.”).
The following are individual named Plaintiffs-Appellees:
5.
John Armbrust
6.
N. Anne Atkinson
7.
Julia Badger
8.
Michael Ball
9.
Raymond A. Beebe, Jr.
10.
Craigan Biggs
11.
Laura Brunstetter
12.
Mark Canales
13.
Michele Caramenico
14.
Andrew Chamberland
15.
David Clark
16.
Diane Countryman
17.
Kevin Dantuma
18.
Jose Delgado
19.
Jordan DeManss
20.
George Demetriou

iii
21.
Keri Divilbiss
22.
Mercer Dunn IV
23.
William Filkins
24.
Jonathan Gragg
25.
Bryon Green
26.
Thomas David Green
27.
Erika Hebert
28.
Peter Hennemann
29.
Neil Horn
30.
Carey Hunter-Andrews
31.
Tana Johnston
32.
Tyler Klosterman
33.
Deborah Lawson
34.
Dan Lewis
35.
Melissa Magill
36.
Kendra Ann Marceau
37.
Dalia Matos
38.
Stephen May
39.
Steven McComis

iv
40.
Christopher Miller
41.
Joshua Moore
42.
Brent Moores
43.
Jesse Neugebauer
44.
Joshua Nicely
45.
Leslie Carl Petersen
46.
Patti Rivera
47.
Joshua Roberts
48.
Ashley Rodman
49.
M. LeeAnne Rucker-Reed
50.
Trevor Rutledge
51.
Nevada Ryan
52.
James Charles Sams III
53.
Michael Schaecher
54.
Christina Schaff
55.
Kurtis Simpson
56.
Barrett Smith
57.
Jaci ReNee Smith
58.
Jarod Smith

v
59.
Jana Spruce
60.
John Tordai
61.
Sandor Vigh
62.
Christine Vrtaric
63.
Pamela Weichel
64.
David Wentz
65.
Jason Wilkerson
66.
Patrick Wright
67.
Patrick Mendoza York
The following are individual named Defendants-Appellants:
68.
Kiran Ahuja, in her official capacities as Director of the Office of
Personnel Management and Co-Chair of Safer Federal Workforce
Task Force
69.
Lloyd J. Austin III, in his official capacity as Secretary of Defense
70.
Joseph R. Biden, Jr., in his official capacity as President of the
United States
71.
Antony Blinken, in his official capacity as Secretary of State
72.
Matthew C. Blum, in his official capacity as Federal Acquisition
Regulatory Council member

vi
73.
William J. Burns, in his official capacity as Director of the Central
Intelligence Agency
74.
Pete
Buttigieg,
in
his
official
capacity
as
Secretary
of
Transportation
75.
Robin Carnahan, in her official capacities as Administrator of the
General Services Administration and Co-Chair of Safer Federal
Workforce Task Force
76.
Leslie A. Field, in her official capacity as Federal Acquisition
Regulatory Council member
77.
Marcia Fudge, in her official capacity as Secretary of Housing and
Urban Development
78.
Merrick B. Garland, in his official capacity as Attorney General
79.
Jennifer M. Granholm, in her official capacity as Secretary of
Energy
80.
Deb Haaland, in her official capacity as Secretary of Interior
81.
Avril Haines, in her official capacity as Director of National
Intelligence
82.
Daniel Hokanson, in his official capacity as Chief of the National
Guard Bureau

vii
83.
Karla S. Jackson, in her official capacity as Federal Acquisition
Regulatory Council member
84.
Kilolo Kijakazi, in her official capacity as Acting Commissioner of
Social Security
85.
Jeffrey A. Koses, in his official capacity as Federal Acquisition
Regulatory Council member
86.
Alejandro Mayorkas, in his official capacity as Secretary of
Homeland Security
87.
Denis McDonough, in his official capacity as Secretary of Veterans
Affairs
88.
Bill Nelson, in his official capacity as Administrator of the National
Aeronautics and Space Administration
89.
Samantha Power, in her official capacity as Administrator of the
United States Agency for International Development
90.
Gina M. Raimondo, in her official capacity as Secretary of
Commerce
91.
John M. Tenaglia, in his official capacity as Federal Acquisition
Regulatory Council member
92.
Tom Vilsack, in his official capacity as Secretary of Agriculture

viii
93.
Marty Walsh, in his official capacity as Secretary of Labor
94.
Janet Yellen, in her official capacity as Secretary of Treasury
95.
Shalanda D. Young, in her official capacity as Director of the Office
of Management and Budget
96.
Jeffrey Zients, in his official capacity as co-chair of the Safer
Federal Workforce Task Force
The following government entities are Defendant-Appellants:
97.
Central Intelligence Agency
98.
Department of Agriculture
99.
Department of Commerce
100. Department of Defense
101. Department of Energy
102. Department of Homeland Security
103. Department of Housing and Urban Development
104. Department of Interior
105. Department of Justice
106. Department of Labor
107. Department of State
108. Department of Transportation

ix
109. Department of Treasury
110. Department of Veterans Affairs
111. Federal Acquisition Regulatory Council
112. General Services Administration
113. National Aeronautics and Space Administration
114. National Guard Bureau
115. Office of Management and Budget
116. Office of Personnel Management
117. Office of the Director of National Intelligence
118. Safer Federal Workforce Task Force
119. Social Security Administration
120. The United States of America
121. United States Agency for International Development
The following are counsel in the case:
122. Boyden Gray & Associates PLLC: C. Boyden Gray, R. Trent
McCotter, Jonathan Berry, Michael Buschbacher, and Jared M.
Kelson are counsel for Plaintiffs-Appellees.
123. U.S. Department of Justice: Brian M. Boynton, Sarah Wendy
Carroll, Marleigh D. Dover, Brit Featherston, James Gillingham,

x
Sarah E. Harrington, Casen Ross, Charles W. Scarborough, Lowell
V. Sturgill Jr., and Daniel Winik are counsel for Defendants-
Appellants.

Dated: August 26, 2022
/s/ R. Trent McCotter

R. Trent McCotter
Counsel of Record for Plaintiffs-
Appellees

xi
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS .......................................... i
TABLE OF CONTENTS ........................................................................... xi
TABLE OF AUTHORITIES .................................................................... xiii
INTRODUCTION ....................................................................................... 1
STATEMENT OF JURISDICTION ........................................................... 9
STATEMENT OF THE ISSUES ................................................................ 9
STATEMENT OF THE CASE ................................................................. 10
I.
Factual Background. .............................................................. 10
II.
District Court Proceedings. ................................................... 11
III.
Fifth Circuit Panel Proceedings. ........................................... 12
SUMMARY OF THE ARGUMENT ......................................................... 13
STANDARD OF REVIEW ........................................................................ 14
ARGUMENT ............................................................................................. 15
I.
The CSRA Does Not Preclude Plaintiffs’ Claims. ................. 16
A.
Ongoing Unconstitutional Coercion: Thunder Basin
and BST Holdings. ........................................................ 16
B.
Elgin Did Not Silently Overrule Decades of
Precedent Authorizing Pre-Enforcement Challenges
to Government-Wide Executive Policies. ..................... 22
C.
Text, Structure, and History Confirm Plaintiffs’
Claims Are Not Precluded. ........................................... 29

xii
D.
The Thunder Basin Factors Confirm Plaintiffs’
Claims Are Not Precluded. ........................................... 38
II.
The District Court Correctly Held that the Vaccine
Mandate Is Ultra Vires. ......................................................... 44
A.
The President Lacked Statutory Power. ...................... 44
B.
Several Clear-Statement Doctrines Confirm the
Lack of Statutory Authority. ........................................ 53
C.
The President Lacked Inherent Article II Power to
Issue the Vaccine Mandate. ......................................... 57
III.
Agencies’ Implementation of the Mandate Violates the
APA. ........................................................................................ 59
IV.
The District Court Did Not Abuse Its Discretion in
Finding that Plaintiffs Face Imminent, Irreparable Harm. 60
V.
The District Court Did Not Abuse Its Discretion in
Finding that the Public Interest and Balance of Harms
Favor Plaintiffs. ..................................................................... 64
VI.
The District Court Did Not Abuse Its Discretion in
Finding that Broad Relief Is Appropriate. ............................ 67
CONCLUSION ......................................................................................... 70
CERTIFICATE OF COMPLIANCE ........................................................ 72
CERTIFICATE OF SERVICE .................................................................. 73

xiii
TABLE OF AUTHORITIES

Page(s)
CASES
Abdelfattah v. DHS, 787 F.3d 524 (D.C. Cir. 2015) ................................ 17
Adams v. Woods, 6 U.S. (2 Cranch) 336 (1805) ....................................... 47
Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021) ................ 54, 56, 64
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935) ................................................................................................... 56
Altschuld v. Raimondo, No. 1:21-cv-2779, 2021 WL 6113563
(D.D.C. Nov. 8, 2021) .......................................................................... 15
AFGE v. Biden, 576 F. Supp. 3d 1155 (S.D. Fla. 2021) .......................... 15
AFGE v. FLRA, 794 F.2d 1013 (5th Cir. 1986) ................................... 7, 22
AFGE v. Sec’y of the Air Force, 716 F.3d 633 (D.C. Cir. 2013) .............. 25
AFGE v. Trump, 929 F.3d 748 (D.C. Cir. 2019) ...................................... 25
Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) ............. 17
Arnett v. Kennedy, 416 U.S. 134 (1974) ................................................... 19
BST Holdings, LLC v. OSHA, 17 F.4th 604
(5th Cir. 2021) ................................... 4, 6, 15, 18, 54, 55, 57, 61, 64, 65
Burgess v. FDIC, 871 F.3d 297 (5th Cir. 2017) ....................................... 62
Califano v. Yamasaki, 442 U.S. 682 (1979) ............................................. 69
Carr v. Saul, 141 S. Ct. 1352 (2021) ........................................................ 44
Church v. Biden, 573 F. Supp. 3d 118 (D.D.C. 2021) .............................. 15

xiv
Cochran v. SEC, 20 F.4th 194
(5th Cir. 2021) ....................................... 7, 17, 26, 28, 30, 36, 39–41, 43
Elgin v. Dep’t of Treasury, 567 U.S. 1
(2012) ..................................................... 7, 20, 26, 27, 30, 35, 38, 41, 42
FLEOA v. Cabaniss, No. 1:19-cv-735, 2019 WL 5697168
(D.D.C. Nov. 4, 2019) ..................................................................... 25, 38
FLEOA v. Rigas, No. 1:19-cv-735, 2020 WL 4903843
(D.D.C. Aug. 20, 2020) ......................................................................... 38
Foley v. Biden, No. 4:-21-cv-1098, 2021 WL 7708477 (N.D. Tex.
Oct. 6, 2021) ......................................................................................... 15
Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005) ...................................... 25
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477
(2010) ....................................................................... 9, 31, 35, 39, 40, 43
FTC v. Bunte Brothers, Inc., 312 U. S. 349 (1941) .................................. 58
Greiner v. United States, 900 F.3d 700 (5th Cir. 2018) .......................... 23
Gremillion v. Chivatero, 749 F.2d 276 (5th Cir. 1985) ........................... 23
Grisham v. United States, 103 F.3d 24 (5th Cir. 1997) .......................... 23
Gundy v. United States, 139 S. Ct. 2116 (2019) ................................ 56, 57
Humana, Inc. v. Avram A. Jacobson, M.D., 804 F.2d 1390
(5th Cir. 1986) ...................................................................................... 60
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607
(1980) ................................................................................................... 57
Kentucky v. Biden, 23 F.4th 585 (6th Cir. 2022) ..................... 3, 52, 53, 55
Knight v. Kirby Offshore Marine Pac., L.L.C., 983 F.3d 172 (5th
Cir. 2020) .............................................................................................. 23

xv
Kreschollek v. S. Stevedoring Co., 78 F.3d 868 (3d Cir. 1996) ................ 40
League of Women Voters of United States v. Newby, 838 F.3d 1
(D.C. Cir. 2016) ................................................................................... 69
Louisiana v. Becerra, 20 F.4th 260 (5th Cir. 2021) ................................ 67
Mathews v. Eldridge, 424 U.S. 319 (1976) .............................................. 43
McCray v. Biden, 574 F. Supp. 3d 1 (D.D.C. 2021) ................................. 15
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1981) ................ 43
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) .................... 17
Mississippi v. Johnson, 71 U.S. 475 (1866) ............................................. 17
Morales v. Dep’t of Army, 947 F.2d 766 (5th Cir. 1991) .......................... 23
Myers v. United States, 272 U.S. 52 (1926) ............................................. 59
Mylan Lab’ys Ltd. v. Janssen Pharmaceutica, N.V., 989 F.3d 1375
(Fed. Cir. 2021)..................................................................................... 21
NFFE v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987) ........................... 7, 25
NFIB v. Dep’t of Labor, 142 S. Ct. 661 (2022) ... 2, 4, 33, 49, 51, 52, 54, 56
NTEU v. Bush, 891 F.2d 99 (5th Cir. 1989) ............................................ 23
NTEU v. Devine, 733 F.2d 114 (D.C. Cir. 1984) .................................. 7, 24
NTEU v. Horner, 854 F.2d 490 (D.C. Cir. 1988) ..................................... 25
NTEU v. Whipple, 636 F. Supp. 2d 63 (D.D.C. 2009) ...................... 35, 43
OCONUS DOD Emp. Rotation Action Grp. v. Cohen, 144 F. Supp.
2d 1 (D.D.C. 2000) ................................................................................ 38
Oklahoma v. Biden, No. 21-cv-1136, 2021 WL 6126230
(W.D. Okla. Dec. 28, 2021) .................................................................. 15

xvi
Palermo v. Rorex, 806 F.2d 1266 (5th Cir. 1987) .................................... 23
Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) ....................................... 56
Robinson v. California, 370 U.S. 660 (1962) .......................................... 48
Rodden v. Fauci, 571 F. Supp. 3d 686 (S.D. Tex. 2021) .......................... 15
Rollins v. Marsh, 937 F.2d 134 (5th Cir. 1991) ....................................... 23
Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691 (2021) .............................. 30
Sambrano v. United Airlines, Inc., 19 F.4th 839 (5th Cir. 2021) ........... 62
Sambrano v. United Airlines, Inc., No. 21-11159, 2022 WL 486610
(5th Cir. Feb. 17, 2022) ................................................................. 61, 62
Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) ..................................... 58
Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159
(2001) ................................................................................................... 55
Texas v. Biden, 20 F.4th 928 (5th Cir. 2021) ..................................... 60, 67
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ......... 6, 18, 38, 43
Topletz v. Skinner, 7 F.4th 284 (5th Cir. 2021) ....................................... 14
Tubesing v. United States, 810 F.3d 330 (5th Cir. 2016) ....................... 23
Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333
(D.D.C. 2020) ....................................................................................... 33
United States v. Fausto, 484 U.S. 439 (1988) .......................................... 23
West Virginia v. EPA, 142 S. Ct. 2587 (2022) ................................... 53, 59
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) .......................... 30
Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021) ..................... 17

xvii
Yates v. United States, 574 U.S. 528 (2015) ........................................... 45
Zummer v. Sallet, 37 F.4th 996 (5th Cir. 2022) ..................................... 23
PUBLIC LAWS AND U.S. CODE
5 U.S.C. § 553 ........................................................................................... 37
5 U.S.C. § 701 ............................................................................................. 9
5 U.S.C. § 2302 ................................................................................... 32–34
5 U.S.C. § 3301 ................................................................................... 44–46
5 U.S.C. § 3302 ................................................................................... 44–46
5 U.S.C. § 7301 ................................................................. 44, 47–49, 52, 53
5 U.S.C. § 7513 ......................................................................................... 50
8 U.S.C. § 1182 ......................................................................................... 55
28 U.S.C. § 1292.......................................................................................... 9
28 U.S.C. § 1331.................................................................................... 9, 30
28 U.S.C. §1346........................................................................................... 9
28 U.S.C. § 1361.......................................................................................... 9
28 U.S.C. § 1651........................................................................................ 20
28 U.S.C. § 2201.......................................................................................... 9
29 U.S.C. § 651.......................................................................................... 49
40 U.S.C. § 101 ......................................................................................... 45
Hatch Act, Pub. L. No. 76-252, 53 Stat. 1147 (1939) .............................. 51

xviii
REGULATORY MATERIALS AND EXECUTIVE ORDERS
Executive Order 10096 ............................................................................. 50
Executive Order 11491 ............................................................................. 50
Executive Order 12674 ............................................................................. 51
Executive Order 14043 ................................................................... 1, 10, 44
15 Fed. Reg. 389 (Jan. 25, 1950) ............................................................. 50
34 Fed. Reg. 17,605 (Oct. 31, 1969) ........................................................ 51
54 Fed. Reg. 15,159 (Apr. 14, 1989) ........................................................ 51
62 Fed. Reg. 43,451 (Aug. 9, 1997) .......................................................... 49
77 Fed. Reg. 24,339 (Apr. 18, 2012) ......................................................... 49
86 Fed. Reg. 50,989 (Sept. 9, 2021) ......................................................... 10
MISCELLANEOUS
Alex Gangitano & Morgan Chalfant, Federal Agencies Prepare to
Act Against Unvaccinated Employees, THE HILL,
https://thehill.com/homenews/administration/588836-federal-
agencies-prepare-to-act-against-unvaccinated-employees (Jan.
9, 2022) ........................................................................................... 64, 67
Anna Giaritelli, Thousands of Unvaccinated Border Patrol Agents
Fear for Their Future, WASH. EXAMINER (June 7, 2022),
https://www.washingtonexaminer.com/news/thousands-of-
unvaccinated-border-patrol-agents-fear-for-their-future ................... 64
Department of State circular of March 20, 1841, reprinted in U.S.
Civil Serv. Comm’n, History of the Federal Civil Service: 1789 to
the Present (1941) ................................................................................ 51

xix
Noah Higgins-Dunn, Dr. Fauci Warns the U.S. Will See a ‘Surge
Upon a Surge’ of Covid Cases Following the Holidays, CNBC
(Dec. 1, 2020), https://www.cnbc.com/2020/12/01/dr-fauci-warns-
the-us-will-see-a-surge-upon-a-surge-of-covid-cases-following-
the-holidays.html. ................................................................................ 66
Task Force, COVID-19 Workplace Safety: Agency Model Safety
Principles (Sept. 13, 2021) ................................................................... 10
Task Force, Initial Implementation Guidance for Federal Agencies
(Aug. 17, 2022),
https://www.saferfederalworkforce.gov/downloads/Initial
Implementation Guidance_CDC Streamline_20220817.pdf .............. 66
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
(1969) .................................................................................................... 47
WEBSTER’S AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE
(1838) ................................................................................................... 47

1
INTRODUCTION
The District Court did not abuse its discretion by enjoining
enforcement of the President’s unilateral and unprecedented executive
order requiring millions of federal civilian employees to undergo a
permanent and irreversible medical procedure (“the vaccine mandate” or
“EO14043”). Plaintiffs challenge the imposition of the vaccine mandate
and the ongoing coercion to be vaccinated against their will. And if they
give in, as many will be compelled to do, the government will have
infringed their liberty interests, but they will not have suffered a
statutorily recognized “adverse employment action” and thus will be
unable to subsequently challenge the vaccine mandate or receive any
remedy. They must challenge the mandate now.
As the District Court held, “this case is not about whether folks
should get vaccinated against COVID-19,” nor is it about “the federal
government’s power, exercised properly, to mandate vaccination of its
employees.” ROA.1751–52. And employees remain free to get vaccinated
voluntarily. This case is instead about “whether the President can, with
the stroke of a pen and without the input of Congress, require millions of

2
federal employees to undergo a medical procedure as a condition of their
employment.” ROA.1752.
Thus, the “question before us is not how to respond to the pandemic,
but who holds the power to do so.” NFIB v. Dep’t of Labor, 142 S. Ct. 661,
670 (2022) (Gorsuch, J., concurring). This Court must determine “who
decides” whether to impose a vaccine mandate as a term of employment
on the entire federal civilian workforce: is it Congress acting through
bicameralism and presentment, or is it the President acting unilaterally?
The President is not the CEO of a private company. His powers are
limited and enumerated. Under current law as construed by the Supreme
Court, Congress—not the President with “a stroke of a pen”—is
empowered to make such a momentous decision. But Congress did not
authorize the vaccine mandate. It is therefore ultra vires.
The government relies on vague statutory language about employee
“conduct”—which the government concedes is “narrow in scope,”
Gov.Reply.Br.19—as alleged support for the President’s decision to
require vaccination as a term of employment. But the vaccine mandate is
not a regulation of federal employees qua employees. Rather, it is a
general health and safety measure, issued without authority from

3
Congress. And even if there were some ambiguity in the relevant
statutes, several clear-statement canons—including the major-questions
doctrine and the federalism canon—confirm that the President lacks
such power.
To support its view, the government makes the outlandish claim
that the President has statutory authority to order or prohibit any
“conduct” for millions of federal civilian employees, even “off-duty
conduct” and even when it targets an employee’s immutable “status”—
unless Congress has expressly “prohibited the President” from doing so.
Gov.EB.Br.33–35.
This
statutory
interpretation
would
render
superfluous entire provisions of the Civil Service Reform Act (“CSRA”).
There is also no “logical stopping point” to the government’s theory,
which would amount to “a de facto police power [of] the President.”
Kentucky v. Biden, 23 F.4th 585, 608 (6th Cir. 2022). The government
claims to have found the largest of elephants in what it concedes is a
“narrow” statutory mousehole. Gov.Reply.Br.19.
The government’s back-up argument is that the President has
inherent Article II power to mandate permanent and irreversible medical
procedures for all federal employees. That theory would again render

4
nearly the entire CSRA superfluous or conflict with its terms. But the
government never argues that any part of the CSRA is unconstitutional,
meaning the government cannot invoke inherent Article II power over
line-level federal civilian employees to circumvent that statute.
Moreover, the government has been unable to cite any prior example in
the Nation’s nearly 250-year history where a President ordered civilian
employees to undergo a medical procedure of any kind, let alone a
permanent and irreversible one. “This lack of historical precedent,
coupled with the breadth of authority that the [President] now claims, is
a telling indication that the mandate extends beyond the [executive
branch’s] legitimate reach.” NFIB, 142 S. Ct. at 666 (cleaned up).
The District Court was also well within its discretion in finding that
Plaintiffs had demonstrated several types of irreparable harm, most
notably in the form of ongoing governmental coercion to be vaccinated
against their wishes, which this Court has already identified as a
“threat[] to substantially burden the liberty interests of reluctant
individual recipients put to a choice between their job(s) and their jab(s).”
BST Holdings, LLC v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021). The
government has forfeited almost all claims of its own irreparable harm,

5
which are unpersuasive anyway because the government has recently
stated that unvaccinated employees should be treated the same as
vaccinated employees, and the government has also expressly disclaimed
any reliance on the risk of workplace spread of COVID-19.
Gov’t.Reply.Br.15.
Nor did the District Court abuse its discretion by granting clear and
broad injunctive relief. The court simply gave the government what its
own COVID-19 Safer Federal Workforce Task Force (“Task Force”)
requested: “consistency across government in enforcement of this
government-wide policy is desired.” ROA.810. And Plaintiffs’ members
are so numerous (over 6,000) and spread over so many geographic
locations and agencies that a clear and broad injunction was the only way
to ensure ex ante that they all receive protection.
It is thus unsurprising that the government seeks to avoid this
Court’s consideration of the merits altogether by claiming that review is
precluded by the CSRA, which funnels individualized challenges to past
employment actions through an administrative scheme. The government
claims the CSRA applies to Plaintiffs’ pre-enforcement challenge to a
government-wide executive order imposing ongoing unconstitutional

6
coercion, even though Plaintiffs expressly disclaim any individual CSRA
employment claims and do not seek any employment relief like backpay
or reinstatement.
The government is wrong because Plaintiffs’ claims are not “of the
type Congress intended to be reviewed within th[e] statutory structure”
of the CSRA. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212 (1994).
First, the Supreme Court held in Thunder Basin that there would be no
implied preclusion in “a situation in which compliance is sufficiently
onerous and coercive penalties [are] sufficiently potent that a
constitutionally intolerable choice” is presented. Id. at 218. This Court
has already held that a governmental vaccine mandate amounts to just
such an intolerable choice because it “threatens to substantially burden
the liberty interests of reluctant individual recipients put to a choice
between their job(s) and their jab(s),” amounting to “the loss of
constitutional freedoms.” BST Holdings, 17 F.4th at 618. The
combination of those two holdings resolves the preclusion issue here.
Second, longstanding
precedent authorizes pre-enforcement
challenges to new government-wide executive policies, which are as far
as imaginable from the routine, individual challenges to past adverse

7
employment actions covered by the CSRA’s scheme. It’s no wonder that
the government’s position on this issue has been labeled “discredited,”
“meritless,” and “completely baseless” by such distinguish jurists as Ruth
Bader Ginsburg, Antonin Scalia, Harry Edwards, and Robert Bork.
NFFE v. Weinberger, 818 F.2d 935, 940 (D.C. Cir. 1987); NTEU v. Devine,
733 F.2d 114, 117 n.8 (D.C. Cir. 1984). And this Court has long agreed
with those jurists. See, e.g., AFGE v. FLRA, 794 F.2d 1013, 1015–16 (5th
Cir. 1986); see also Slip.Op.18 (Barksdale, J., dissenting).
The government theorizes that those decades of circuit precedent
were silently overruled by Elgin v. Department of Treasury, 567 U.S. 1
(2012). This Court’s en banc decision in Cochran v. SEC, 20 F.4th 194,
206 (5th Cir. 2021), cert. granted, 142 S. Ct 2707 (2022), rejected the
argument that Elgin effected a sea change in preclusion. Elgin involved
CSRA preclusion of individual, past terminations and said nothing about
the broadside pre-enforcement challenges that had been allowed for
decades. Indeed, the government’s own merits brief in Elgin
acknowledged there could be “an employment-related action that would
not be judicially reviewable under the CSRA and yet would rise to the
level of constitutional significance” warranting immediate judicial

8
review. Resp.Br.17–18, Elgin, 567 U.S. 1. Plaintiffs thus ask this Court
to adopt the view previously espoused by the Department of Justice itself.
Third, the text, structure, and purpose of the CSRA all confirm that
Plaintiffs’ claims are not precluded. The text of the CSRA says nothing
about pre-enforcement challenges to new employment policies imposing
ongoing unconstitutional coercion, and Plaintiffs do not challenge
individualized, prior adverse employment actions. It also makes little
sense that Congress would have intended every employee to incur
discipline and then bring separate CSRA challenges to the legality of a
new government-wide policy affecting over 2 million employees, as
demonstrated by decades of precedent allowing pre-enforcement
challenges in such circumstances.
Fourth, the government also fails the Supreme Court’s so-called
Thunder Basin factors for determining when claims are impliedly
precluded. Absent immediate judicial review, most employees will be left
without meaningful relief at all. If they unwillingly submit to vaccination
(as most employees will be coerced to do), they will never experience an
adverse action covered by the CSRA and thus cannot bring an

9
administrative claim. And even if they could, the Merit Systems
Protection Board cannot undo a permanent and irreversible vaccination.
In short, the vaccine mandate imposes ongoing unconstitutional
coercion causing a “here-and-now injury” requiring “here-and-now” relief
from a district court. Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
561 U.S. 477, 513 (2010). The District Court properly enjoined the vaccine
mandate. This Court should affirm.
STATEMENT OF JURISDICTION
The District Court had jurisdiction under 5 U.S.C. §§ 701–706, 28
U.S.C. §§ 1331, 1346, 1361, 2201, under the United States Constitution,
and pursuant to the Court’s equitable powers. This Court has jurisdiction
under 28 U.S.C. § 1292(a)(1).
STATEMENT OF THE ISSUES
(1)
Whether the Civil Service Reform Act strips district courts of
jurisdiction over pre-enforcement challenges to new government-
wide executive policies imposing ongoing unconstitutional
coercion.
(2)
Whether the District Court correctly held that the President’s
unprecedented and unilateral act of mandating that millions of

10
civilian employees undergo a permanent and irreversible
medical procedure to keep their jobs was ultra vires.
(3)
Whether the District Court abused its discretion by finding that
Plaintiffs demonstrated irreparable and imminent injury, and
that the balance of harms and equities favored Plaintiffs.
(4)
Whether the District Court abused its discretion by finding that
the unique facts of this case warrant clear, broad injunctive
relief.
STATEMENT OF THE CASE
I.
FACTUAL BACKGROUND.
On September 9, 2021, President Biden issued EO14043, which
states that “it is necessary to require COVID-19 vaccination for all
Federal employees, subject to such exceptions as required by law.” 86
Fed. Reg. 50,989 (Sept. 9, 2021). On September 13, 2021, the Task Force
issued a guidance document, recommending a deadline of November 22,
2021, for all federal employees to be fully vaccinated. Task Force, COVID-
19 Workplace Safety: Agency Model Safety Principles 2 (Sept. 13, 2021),
ROA.788.

11
In a subsequent “FAQ,” the Task Force stated that “[e]mployees
who are on maximum telework or working remotely are not excused from
this requirement,” nor are employees with natural antibodies. ROA.799.
Employees who failed to comply by November 22, 2021, “are in violation
of a lawful order” and subject to discipline, “up to and including
termination or removal.” ROA.810.
II.
DISTRICT COURT PROCEEDINGS.
Lead Plaintiff Feds for Medical Freedom (“F4MF”) has over 6,000
registered members, who respectively work in every State and for almost
every federal agency. ROA.1193. Many are federal employees with no
pending vaccine mandate exemption requests, and some were threatened
with imminent discipline unless they submit to vaccination against their
will. Over 1,500 F4MF members have contributed financially to the
organization, including approximately 1,000 members who contributed
financially to this litigation (averaging over $300 per person).
Pls.Addend.1 (filed Feb. 9, 2022). Plaintiff Local 918 is also a membership
group representing certain DHS employees. ROA.74.
Plaintiffs filed suit on December 21, 2021, and moved for a
preliminary injunction the next day, arguing the vaccine mandate is

12
ultra vires and that Defendants’ implementation of it is arbitrary and
capricious under the Administrative Procedure Act. Plaintiffs repeatedly
stated that they “do not challenge any individual employment decision in
this suit” and do not seek employment relief. ROA.75; ROA.76; ROA.118;
ROA.138.
On January 21, 2021, the District Court enjoined enforcement and
implementation of EO14043 because it is ultra vires. ROA.1751.
III. FIFTH CIRCUIT PANEL PROCEEDINGS.
The government appealed and sought emergency relief, but on
February 9, 2022, a divided motions panel of this Court ordered the
government’s stay motion to be carried with the case. See Slip.Op.4. The
Court ordered expedited merits briefing and oral argument, which
occurred on March 8, 2022. The merits panel issued its decision on April
7, 2022.
The majority concluded that the CSRA precludes review of
Plaintiffs’ challenges. Slip.Op.14. Judge Barksdale dissented, arguing
that a “pre-enforcement challenge to a government-wide policy” is not
precluded by the CSRA. Slip.Op.17. The panel unanimously denied the

13
government’s stay motion as moot. Plaintiffs sought rehearing en banc,
which the Court granted.
SUMMARY OF THE ARGUMENT
The Court should affirm the District Court’s well-reasoned order
issuing a preliminary injunction against the unprecedented vaccine
mandate. Jurisdiction over this case is appropriate for multiple reasons,
including decades of precedent allowing pre-enforcement challenges to
new government-wide regulations, especially when they impose ongoing
constitutional harm.
On the merits, the government forfeited most of its arguments by
not raising them in opposition to the motion for a preliminary injunction.
In any event, the government’s arguments are all unpersuasive. Its case
largely depends on the theory that the President’s power to regulate
executive employees’ “conduct,” buried in the middle of a statute about
mundane employment matters, gave him the power to control every
aspect of those employees’ lives. But Supreme Court precedent and
numerous canons of construction foreclose that view. And the
government’s theory that the President can exercise inherent Article II
power to mandate such medical procedures for all federal civilian

14
employees is completely unsupported by history and inconsistent with
the very existence of the CSRA. The government does not challenge the
constitutionality of that statute, which governs the President’s power
over federal civilian employees.

Finally, the District Court did not abuse its discretion in finding
that Plaintiffs would suffer imminent and irreparable harm absent relief,
in line with this Court’s precedent on federally-imposed vaccine
mandates, or by awarding clear and broad relief. Plaintiff F4MF alone
has over 6,000 members, spread across every State and nearly every
federal agency. When coupled with the government’s repeated inability
to track employees during this litigation, the District Court correctly
concluded that only a clear injunction would ensure relief to F4MF’s
members.
STANDARD OF REVIEW
“This court reviews the grant or denial of a preliminary injunction
for abuse of discretion, with any underlying legal determinations
reviewed de novo and factual findings for clear error.” Topletz v. Skinner,
7 F.4th 284, 293 (5th Cir. 2021).

15
ARGUMENT
At the outset, Plaintiffs address the government’s repeated reliance
on the bare fact that other district courts denied preliminary relief
against the vaccine mandate. Gov.EB.Br.1; Gov.Br.1, 15, 18, 51.1
The government’s attempt to paint the District Court as overly
eager to grant relief is unsupported and misleading given that the same
District Judge had previously denied a motion for a preliminary
injunction against the same vaccine mandate in a different case.
ROA.1754. As the District Court explained in its Order, the government’s
reliance on prior decisions denying relief is unpersuasive because those
cases suffered from obvious flaws not present here, such as suing the
wrong defendants,2 suing over the wrong policies,3 or filing prematurely
and thus providing no evidence of coercion.4 ROA.1754. Those defective

1 “Gov.EB.Br.” refers to the government’s en banc brief filed July 27,
2022. “Gov.Br.” refers to the government’s original opening merits brief
filed February 15, 2022. “Gov.Reply.Br.” refers to the government’s
merits reply brief filed February 18, 2022.
2 See, e.g., Foley v. Biden, No. 4:-21-cv-1098, 2021 WL 7708477 (N.D. Tex.
Oct. 6, 2021); McCray v. Biden, 574 F. Supp. 3d 1 (D.D.C. 2021); Rodden
v. Fauci, 571 F. Supp. 3d 686 (S.D. Tex. 2021).
3 See, e.g., Oklahoma v. Biden, 577 F. Supp. 3d 1245 (W.D. Okla. 2021).
4 See, e.g., AFGE v. Biden, 576 F. Supp. 3d 1155 (S.D. Fla. 2021);
Altschuld v. Raimondo, No. 1:21-cv-2779, 2021 WL 6113563 (D.D.C. Nov.
8, 2021); Church v. Biden, 573 F. Supp. 3d 118 (D.D.C. 2021).

16
cases are hardly persuasive compared to the District Court’s in-depth
consideration here. The District Court’s analysis also has the distinct
advantage of being correct and should be affirmed.
I.
THE CSRA DOES NOT PRECLUDE PLAINTIFFS’ CLAIMS.
The Complaint in this case states repeatedly that “Plaintiffs do not
challenge any individual employment decisions,” nor do Plaintiffs seek
typical employment-related relief like reinstatement or backpay.
ROA.75; ROA.76; ROA.118; ROA.138. Rather, Plaintiffs bring a pre-
enforcement challenge to a new government-wide executive order that
puts millions of federal civilian employees to the “Hobson’s choice”
between “their job(s) and their jab(s).” BST Holdings, 17 F.4th at 618.
The District Court correctly concluded that Plaintiffs’ claims are
not impliedly precluded by the CSRA. Numerous bases support that
holding.
A.
ONGOING UNCONSTITUTIONAL COERCION: THUNDER BASIN
AND BST HOLDINGS.
Jurisdiction is appropriate here under a straightforward
combination of the Supreme Court’s decision in Thunder Basin and this
Court’s decision in BST Holdings.

17
There is a longstanding historical tradition of courts issuing
injunctive relief against ongoing constitutional violations and “violations
of federal law by federal officials.” Armstrong v. Exceptional Child Ctr.,
Inc., 575 U.S. 320, 327 (2015). This “negative injunction remedy” is a
“‘standard tool of equity’ … that federal courts have authority to
entertain under their traditional equitable jurisdiction” dating back to
the Judiciary Act of 1789, § 11, 1 Stat. 78, and even earlier to English
tradition, see Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 540
(2021) (Thomas, J., concurring in part).
Thus, “where threatened action by government is concerned,”
courts “do not require a plaintiff to expose himself to liability before
bringing suit to challenge the basis for the threat—for example, the
constitutionality of a law threatened to be enforced.” MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 128–29 (2007); Cochran, 20 F.4th at 210
(“[T]he threat of irreparable harm may justify pre-enforcement judicial
review under principles of equity.”); Abdelfattah v. DHS, 787 F.3d 524,
534 (D.C. Cir. 2015) (“[T]he CRSA d[oes] not preclude judicial review of
such constitutional claims altogether. Civil servants and job applicants

18
could still ‘seek equitable relief against their supervisors, and the agency
itself, in vindication of their constitutional rights.’”).
In accordance with this presumption of review for ongoing
constitutional violations, the Supreme Court noted in Thunder Basin the
strong presumption against implied preclusion in a “situation in which
compliance is sufficiently onerous and coercive penalties [are] sufficiently
potent that a constitutionally intolerable choice” is presented. 510 U.S.
at 218.
This Court has already held that government-imposed vaccine
mandates impose just such a constitutionally intolerable choice on
employees by “threaten[ing] to substantially burden the liberty interests
of reluctant individual recipients put to a choice between their job(s) and
their jab(s),” amounting to “the loss of constitutional freedoms.” BST
Holdings, 17 F.4th at 618.
Combining Thunder Basin and BST Holdings confirms that a
challenge to ongoing constitutional coercion is not precluded, absent clear
statutory text to the contrary, which the government never claims exists

19
here.5 And the District Court correctly held that Plaintiffs had alleged
and proven such ongoing unconstitutional coercion here. See ROA.1757;
ROA.1760. In fact, the vaccine mandate here is even more draconian than
the one in BST Holdings, as there is no alternative for testing in lieu of
vaccination.6
Indeed, putting employees to this choice is the entire point. As
Justice Thurgood Marshall once stated, “[T]he value of a sword of
Damocles is that it hangs—not that it drops. For every employee who
risks his job by testing the limits of the [government’s action], many more
will choose the cautious path.” Arnett v. Kennedy, 416 U.S. 134, 231
(1974) (Marshall, J., dissenting). The government is relying on that

5 Congress knows how to preclude courts from redressing certain ongoing
injuries. See, e.g., 12 U.S.C. § 1818(i)(1) (FDIC proceedings).
6 The government says Plaintiffs have not raised a claim that the
mandate “violate[s] their constitutional rights.” Gov.EB.Br.25, 44. The
District Court correctly held that Plaintiffs raised and proved
constitutional harms from ongoing coercion. See ROA.1757; ROA.1760;
ROA.115; ROA.116; ROA.117; ROA.776. The government apparently
refers only to the fact that Plaintiffs did not bring a standalone cause of
action asserting individual constitutional violations, but that is because
this is an ultra vires challenge that does not raise individual adverse
employment actions.

20
calculus, under which it can keep coercing employees to get vaccinated
but still avoid meaningful judicial review.
Moreover, the government’s own Supreme Court merits brief in
Elgin (the opinion in that case is discussed further in Part I.B, infra),
which involved CSRA preclusion for individualized past terminations,
acknowledged there could be “an employment-related action that would
not be judicially reviewable under the CSRA and yet would rise to the
level of constitutional significance” such that a court could immediately
entertain a challenge. Resp.Br.17–18, Elgin, 567 U.S. 1. Plaintiffs’ claim
of unconstitutional coercion is precisely such an action.
The government now tries to abandon its view in Elgin. Raising a
position it never advanced in the District Court or before the panel, the
government claims that the only way for immediate judicial review of
employment policies imposing ongoing unconstitutional harm is via the
All Writs Act, 28 U.S.C. § 1651, by seeking a writ of mandamus from the
Federal Circuit in the case of “obviously unlawful directives.”
Gov.EB.Br.26. This not only directly contradicts the government’s
steadfast insistence on complete CSRA exclusivity and repeated claims
that administrative exhaustion is always required, but also elides that

21
the All Writs Act “does not expand a court’s jurisdiction” or apply until “a
party has at least taken the first preliminary step that might lead to
appellate jurisdiction in this court in the future.” Mylan Lab’ys Ltd. v.
Janssen Pharmaceutica, N.V., 989 F.3d 1375, 1380 (Fed. Cir. 2021)
(cleaned up). In other words, the CSRA does not apply or bestow
jurisdiction (be it via mandamus or otherwise) until the government has
taken a defined adverse employment action, which is missing here. See
Slip.Op.9 (acknowledging that “the current [P]laintiffs” have not “already
suffered an adverse employment action”).7
The government’s Elgin brief was correct that some employment-
related actions are simply outside the CSRA. The ongoing coercion caused
by the vaccine mandate is sufficient to confer jurisdiction on this Court.

7 Because there is no adverse employment action, the government’s
theory means mandamus would have to be issued directly against the
President, given that he issued the vaccine mandate—but that
contradicts longstanding Supreme Court precedent. See Mississippi v.
Johnson, 71 U.S. 475, 499 (1866) (labeling the notion of enjoining the
President “‘an absurd and excessive extravagance’”).

22
B.
ELGIN
DID
NOT
SILENTLY
OVERRULE
DECADES
OF
PRECEDENT
AUTHORIZING
PRE-ENFORCEMENT
CHALLENGES TO GOVERNMENT-WIDE EXECUTIVE POLICIES.
If there were any doubt, Plaintiffs’ ability to bring a pre-
enforcement ultra vires challenge to a new government-wide executive
policy is supported by precedent, which Elgin left undisturbed.
1.
Decades of Precedent Support Plaintiffs.
Judge Barksdale’s panel dissent persuasively explains that the
CSRA simply does not preclude pre-enforcement challenges to
government-wide employment regulations, which are as far as
imaginable from the types of routine, individualized challenges to prior
employment actions covered by the CSRA. Slip.Op.17–18 (Barksdale, J.,
dissenting).
This Court has long agreed with Judge Barksdale’s dissent. In
1986, this Court addressed a challenge to a “government-wide regulation
promulgated by the Office of Personnel Management,” and held that if a
plaintiff “wishes to challenge the validity of this … regulation, there are
other means available,” such as “challenging [the] regulations in district
court.” AFGE, 794 F.2d at 1015–16.
Three years later, when a union of federal employees challenged
President Reagan’s executive order requiring drug testing of certain

23
federal employees, first in district court and then on appeal, this Court
not only decided the challenge to the executive order on the merits, but
expressly authorized additional suits “against the individual agency
plans implementing the [executive o]rder” as well. NTEU v. Bush, 891
F.2d 99, 102 (5th Cir. 1989).
Between them, AFGE and NTEU cite the CSRA over fifteen times.
The opinions provided “explication[s] of the governing rules of law” for
bringing such challenges, and thus their statements are binding
holdings. Knight v. Kirby Offshore Marine Pac., L.L.C., 983 F.3d 172, 177
(5th Cir. 2020). Plaintiffs relied on AFGE and NTEU when bringing this
lawsuit.
The panel decision in this case, however, never cited these cases.
Instead, it—just like the government, see Gov.EB.Br.19—relied
exclusively on decisions involving the easily distinguishable scenario
where employees challenged their individualized prior discipline and
sought standard employment relief like reinstatement or damages—core
CSRA claims seeking core CSRA remedies.8 Those are nothing like the

8 See United States v. Fausto, 484 U.S. 439, 441 (1988) (seeking “backpay”
for suspension); Zummer v. Sallet, 37 F.4th 996, 1005, 1007–08 (5th Cir.
(footnote continued on next page)

24
pre-enforcement ultra vires challenge to a government-wide policy here,
where Plaintiffs expressly disclaim any challenge to individual
employment actions or entitlement to relief like reinstatement or
backpay—and thus there is no statutorily-recognized adverse action that
they seek to “reverse.” Slip.Op.5–6, 8 n.3.
Distinguished jurists have long agreed with Judge Barksdale and
this Court’s precedent. For example, Judge Harry Edwards, joined by
then-Judges Robert Bork and Antonin Scalia, labeled as “meritless” the
idea that the CSRA “impliedly precludes preenforcement judicial review
of rules” imposing “dramatic changes in federal personnel practices
relating to reduction in force procedures, performance management
systems, and pay administration.” Devine, 733 F.2d at 114, 117 n.8.

2022) (seeking “to reverse the adverse employment decisions” of
“suspension and termination”); Griener v. United States, 900 F.3d 700,
702 (5th Cir. 2018) (seeking “damage[s]” for termination); Tubesing v.
United States, 810 F.3d 330, 332 (5th Cir. 2016) (same); Grisham v.
United States, 103 F.3d 24, 25 (5th Cir. 1997) (same); Morales v. Dep’t of
Army, 947 F.2d 766, 768–79 (5th Cir. 1991) (same); Rollins v. Marsh, 937
F.2d 134, 136 (5th Cir. 1991) (seeking “damages” after being disciplined);
Palermo v. Rorex, 806 F.2d 1266, 1268 (5th Cir. 1987) (seeking “monetary
damages” for “wrongfully commenc[ing] disciplinary proceedings”);
Gremillion v. Chivatero, 749 F.2d 276, 277–78 (5th Cir. 1985) (seeking
“damages” for “wrongful discharge”).

25
In another case, Judge Edwards and then-Judge Ruth Bader
Ginsburg not only rejected the notion of pre-enforcement CSRA
preclusion, but expressly “discourage[d] any future litigant who might
have the effrontery to engage the District Court with this discredited
theory of subject matter jurisdiction.” Weinberger, 818 F.2d at 940, 941
n.11 (authorizing constitutional and APA challenges to a government-
wide employment regulation).
And in a third case, the D.C. Circuit held that judicial review of
“minor personnel actions” is barred by CSRA, but a challenge to “a major
policy decision” is not within the CSRA. NTEU v. Horner, 854 F.2d 490,
497 (D.C. Cir. 1988).
The D.C. Circuit has not overruled these opinions, nor has there
been any flood of employment actions as a result of them. But see
Gov.EB.Br.22 (claiming, without evidence, that allowing such claims
would “gut the CSRA scheme”).9

9 The government touts language from Fornaro v. James, 416 F.3d 63
(D.C. Cir. 2005), that “what you get under the CSRA is what you get,” id.
at 68, but the government conveniently omits the preceding clause that
says, “[S]o far as review of determinations under the CSRA is concerned,”
id. (emphasis added). Plaintiffs do not seek review of such
(footnote continued on next page)

26
2.
Elgin Did Not Overrule Decades of Precedent.
The government suggests the Supreme Court’s decision in Elgin
silently overruled the decades of uniform caselaw from this Court and the
D.C. Circuit. Gov.EB.Br.14–22. Even setting aside the strong
presumption against implied overruling, the argument that Elgin
effected a sea change is already foreclosed by this Court’s en banc decision
holding that Elgin “did not break new ground” in the area of preclusion.
Cochran, 20 F.4th at 206. Indeed, Elgin—just like the government’s other
cases—involved individualized “challenges [to] an adverse employment
action,” which the employees sought “to reverse” and “to receive the
compensation they would have earned.” 567 U.S. at 5, 22. The plaintiffs
had alleged that it was unconstitutional to terminate them for failing to
comply with a longstanding statute requiring registration with the
selective service. Id. at 6–7.

determinations. Fornaro also involved a different “CSRA,” the Civil
Service Retirement Act. Id. at 64.
The government next cites AFGE v. Trump, 929 F.3d 748 (D.C. Cir.
2019), and AFGE v. Secretary of the Air Force, 716 F.3d 633 (D.C. Cir.
2013); Gov.EB.Br.21, but neither case involved the CSRA provisions at
issue here. And, as the U.S. District Court for the District of Columbia
has already explained, those decisions should not be read to negate the
well-established precedent allowing pre-enforcement claims. FLEOA v.
Cabaniss, No. 1:19-cv-735, 2019 WL 5697168, at *6 (D.D.C. Nov. 4, 2019).

27
The plaintiffs in Elgin thus had a prototypical adverse action
(termination) that they wanted to “reverse,” and they sought prototypical
“relief that the CSRA routinely affords” (backpay and reinstatement). Id.
at 22. The Court held that the CSRA applies to such employees’ claims,
regardless of whether they were premised on constitutional challenges to
statutes. Id. at 15. In short, when a plaintiff has suffered a statutorily-
covered adverse action, the CSRA provides the sole scheme.
But Elgin said nothing about pre-enforcement challenges of the
type that had been allowed for decades, especially where—as here—the
plaintiffs expressly forgo any challenge to CSRA-defined adverse actions
and disclaim any entitlement to “relief that the CSRA routinely affords.”
Id. at 22. Such pre-enforcement challenges, which do not involve prior
adverse actions and instead seek to invalidate a government-wide policy,
are simply not within the CSRA. This explains why Justice Scalia found
no inconsistency in joining the majorities in both Elgin and Devine, where
he had labeled as “meritless” the very same preclusion argument the
government now peddles to this Court.
The government claims there would be a “gaping loophole” in the
CSRA if the plaintiffs in Elgin could have avoided preclusion by suing

28
before their terminations. Gov.EB.Br.22. But as Cochran held, the
possibility of such suits is minimized by the requirement to demonstrate
standing via imminent harm, and any request for preliminary injunctive
relief would require a showing of irreparable harm to the employee,
making it even less likely that such suits could obtain immediate judicial
relief. See Cochran, 20 F.4th at 210–11.
In any event, the government is simply wrong that allowing
immediate judicial review in certain circumstances is illogical. Judge
Costa’s dissent in Cochran explained how the “seemingly anomalous
result” that a party can obtain immediate judicial review before (but not
after) the initiation of adverse agency action is entirely logical where
“[t]here is no [statutory] scheme for judicial review of” those pre-
enforcement actions. Cochran, 20 F.4th at 246 n.15 (Costa, J.,
dissenting). In such cases, “falling back on general federal question
jurisdiction does not undermine any contrary statutory path.” Id. The
CSRA likewise does not reach pre-enforcement claims, even though an
actual termination would trigger the CSRA and thereby preclude
immediate judicial review under Elgin.

29
More, as Judge Barksdale’s dissent suggested, it is especially
unlikely that Congress intended to preemptively preclude challenges to
every yet-to-be-formulated executive employment policy (as here), even if
preclusion might be implied for challenges to established statutory
requirements (as in Elgin). See Slip.Op.17–18 (Barksdale, J., dissenting).
Indeed, the cases where this Court and the D.C. Circuit allowed pre-
enforcement claims all involved challenges to newly issued executive
policies, not statutes.
Accordingly, Elgin is of no help to the government. Perhaps that is
why the government’s opposition to Plaintiffs’ motion for a preliminary
injunction directly cited Elgin only once. ROA.1526. In fact, the
government’s arguments on preclusion have changed dramatically
throughout this case. Rather than try to hit a moving target, the Court
should re-adopt the longstanding decisions in AFGE and NTEU, as well
as those from the D.C. Circuit, which are persuasive and correct.
C.
TEXT, STRUCTURE, AND HISTORY CONFIRM PLAINTIFFS’
CLAIMS ARE NOT PRECLUDED.
Even setting aside the CSRA-specific precedents discussed above,
the traditional tools used by the Supreme Court when resolving questions
of implied preclusion confirm that Plaintiffs’ claims are not precluded.

30
The Supreme Court has looked to the text, structure, and history of
the particular statutory scheme at issue, and also considered the so-
called Thunder Basin factors. See Elgin, 567 U.S. at 10, 15. Applying
either framework confirms that Plaintiffs’ claims are not precluded. See
also Part I.D, infra (analyzing Thunder Basin factors).
The Supreme Court has held that there is a “strong presumption
favoring judicial review” of executive action, and the Government may
rebut that presumption only by carrying the “‘heavy burden’ of showing
that the statute’s ‘language or structure’ forecloses judicial review.”
Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021). This strong
presumption derives from 28 U.S.C. § 1331, which provides district
courts with jurisdiction over “all” federal-question suits. “Not some or
most—but all.” Cochran, 20 F.4th at 199.
Accordingly, when a district court is confronted with an effort to
enjoin unconstitutional government action, the “question” is “not
whether” some statute “confers jurisdiction,” but whether some other
statute “removes the jurisdiction given to the federal courts” under
§ 1331. Whitman v. Dep’t of Transp., 547 U.S. 512, 514 (2006) (emphases
added).

31
1.
Statutory Text.
The government has pointed to no part of the CSRA that expressly
addresses pre-enforcement challenges like those brought by Plaintiffs.
See Free Enter. Fund, 561 U.S. at 489 (considering significant that the
statutory text “does not expressly limit the jurisdiction that other
statutes confer on district courts”). Rather, the CSRA provides a list of
defined “adverse actions”—none of which includes a pre-enforcement
ultra vires challenge to ongoing coercion from a government-wide
regulation—and then the CSRA charts an administrative scheme for
pursuing challenges to those defined adverse actions.
The panel decision and the government posit several alleged textual
bases to preclude review, but none withstands scrutiny. The panel first
suggested that the vaccine mandate is a “proposed” adverse employment
action covered by the CSRA. Slip.Op.9–10 (citing 5 U.S.C. § 7513(b)). In
the majority’s telling, 2.1 million employees were suddenly subjected to
a “proposed adverse action” the moment the President issued the vaccine
mandate, such that they were immediately entitled to “an opportunity to
respond, legal representation, and written reasons supporting the
employing agency’s decision.” Id. at 7.

32
But not even the government has raised that argument—and for
good reason. Judge Barksdale’s dissent correctly explains that the
CSRA’s language about “proposed” actions (1) expressly applies only to
actions by “an employing agency,” not by the President; and (2) refers to
“individual employees” receiving formal notice of a specific proposed
discipline, not a general threat by the President to discipline “an entire
class of employees.” Id. at 18 (Barksdale, J., dissenting). This is
confirmed by the fact that the CSRA provides an “opportunity to respond,
legal representation, and written reasons,” none of which make sense for
a general threat simultaneously issued to millions of employees. Id.
The panel opinion then posited a far-fetched scenario where
employees could try to challenge the vaccine mandate by filing petitions
with the Office of Special Counsel (“OSC”), which entertains whistle-
blower complaints, pursuant to 5 U.S.C. § 2302. Slip.Op.12. The
government raises this theory only in the most perfunctory manner,
forfeiting the issue. Gov.EB.Br.26. But in any event the panel’s reading
is erroneous. The vaccine mandate is not a “‘significant change in …
working conditions’” under § 2302, Slip.Op.12 (quoting 5 U.S.C.
§ 2302(a)(2)(A)(xii)), most notably because the government itself has

33
disclaimed that the vaccine mandate addresses workplace spread of
COVID-19, see Gov’t.Reply.Br.15.
The government’s concession is also consistent with the Supreme
Court’s holding in the context of the OSHA vaccine mandate that
“[a]lthough COVID–19 is a risk that occurs in many workplaces, it is not
an occupational hazard in most.” NFIB, 142 S. Ct. at 665. That is because
“COVID–19 can and does spread at home, in schools, during sporting
events, and everywhere else that people gather. That kind of universal
risk is no different from the day-to-day dangers that all face from crime,
air pollution, or any number of communicable diseases.” Id.
The panel decision relied on an interpretation of working conditions
found in a different title of the CSRA, Slip.Op.12 & n.4, but as the District
Court explained, “working conditions” as used in § 2302(a)(xii) “generally
refers to the daily, concrete parameters of a job, for example, hours,
discrete assignments, and the provision of necessary equipment and
resources,” not mandated medical procedures, and certainly not
procedures addressing a “universal risk” untethered from the workplace.
ROA.1756 (quoting Turner v. U.S. Agency for Glob. Media, 502 F. Supp.
3d 333, 367 (D.D.C. 2020)); see NFIB, 142 S. Ct. at 665.

34
Critically, even if the vaccine mandate were a change in working
conditions under § 2302, there is no free-standing right to challenge such
a change. The change has to result from one of an enumerated list of
actions like discrimination or retaliation—none of which applies here.
See 5 U.S.C. § 2302(b). The majority suggested that § 2302(b)(12) applies,
but that requires a violation of a separate “law, rule, or regulation”
implementing one of the aspirational “principles” from § 2301, so even if
a principle from § 2301 were implicated by the vaccine mandate, that is
not enough—there must be an express “implement[ation]” of that
principle that would apply here, but the majority never identifies any
such implementation, see Slip.Op.12. In short, the OSC route is entirely
unavailing.
The lack of textual support for the government’s view confirms that
Plaintiffs’ claims fall within § 1331’s strong presumption of review.10

10 The government claims Plaintiffs must be relying on adverse
employment actions for standing. Gov.EB.BR.22. That is incorrect.
Ongoing coercion provides an injury for standing, as do imminent-but-
unrealized employment harms (as was true in the 1980s pre-enforcement
cases discussed above).

35
2.
Statutory Structure.
The structure of the CSRA also confirms there is no congressional
intent to preclude claims like Plaintiffs’. As Judge Barksdale’s dissent
explained, Plaintiffs launch a “pre-enforcement challenge to a
government-wide policy, imposed by the President, that would affect 2.1
million federal civilian workers,” and thus the “[r]elief plaintiffs seek
does not fall within the purpose of the CSRA.” Slip.Op.17 (Barksdale, J.,
dissenting). In short, Plaintiffs’ claims are simply different in kind from
the standard CSRA claim. Enjoining enforcement of an executive order
that puts millions of employees to an illegal and impossible choice is
hardly “relief that the CSRA routinely affords,” Elgin, 567 U.S. at 22;
Slip.Op.17–18 (Barksdale, J., dissenting), especially given the admittedly
unprecedented nature of the vaccine mandate.
To be sure, Plaintiffs’ “requested relief would prohibit further use
of the [employment] regulation”—as is always the case for pre-
enforcement challenges to a regulation—“but [Plaintiffs] do[] not seek
individual relief for specific employee claims. The CSRA does not
preclude this type of rulemaking challenge.” NTEU v. Whipple, 636 F.
Supp. 2d 63, 69 (D.D.C. 2009).

36
The panel decision also asserted that Plaintiffs’ claims were not
“structural” challenges like those in Free Enterprise Fund, 561 U.S. at
490, see Slip.Op.11; Gov.EB.Br.24, but if an ultra vires challenge to a
government-wide executive policy is not a structural separation-of-
powers challenge, it is difficult to imagine what would qualify. See Part
I.D.2, infra (explaining why this challenge is collateral to the CSRA).
3.
History and Purpose.
The CSRA’s history and purpose also confirm that Plaintiffs’ claims
are not precluded. As demonstrated above, there is a long history of this
Court and the D.C. Circuit holding that challenges to broad, new
regulations involving employment are not precluded by the CSRA. The
panel opinion suggested that allowing a pre-enforcement challenge would
open the floodgates of litigation, which could yield inconsistent
employment decisions. Slip.Op.10. But that is wrong three times over.
First, as Judge Barksdale’s dissent explained, it is the government’s
position that will actually “result in the very type of lengthy and
haphazard results CSRA was enacted to prevent,” because Congress
would not have wanted employees trying to bring thousands of separate
administrative challenges to the same underlying government policy

37
when a single lawsuit in district court could resolve the matter.
Slip.Op.17 (Barksdale, J., dissenting).
Second, “doctrines, such as standing, ripeness, exhaustion,
sovereign immunity, and abstention” would narrow the class of cases
subject to district court review, avoiding the possibility of employees
bringing lawsuits for every perceived violation. Cochran, 20 F.4th at 211.
Moreover, only a showing of irreparable harm could trigger preliminary
injunctive relief.
Third, longstanding precedent in this Court and the D.C. Circuit
allowing such claims clearly did not open the floodgates of litigation in
those courts.
* * *
For these reasons, the text, structure, and purpose of the CSRA all
favor Plaintiffs.
4.
The APA.
The Administrative Procedure Act provides additional statutory
evidence that Congress did not intend to preclude review of broadside
challenges to regulations that touch on employment. The APA excludes
“agency management or personnel” regulations from notice and

38
comment, 5 U.S.C. § 553(a)(2), but does not exclude such regulations from
any substantive APA requirements, like acting in accordance with law
and avoiding arbitrary and capricious acts, or judicial review. This
selective preclusion provides further evidence that Congress did not
intend to preclude broadside challenges to the substance of new policies
merely because they are personnel-related. Indeed, courts have held that
APA claims are especially unlikely to be precluded in this context. See,
e.g., FLEOA v. Rigas, No. 1:19-cv-735, 2020 WL 4903843, at *3–4 (D.D.C.
Aug. 20, 2020); Cabaniss, 2019 WL 5697168, at *4–6; OCONUS DOD
Emp. Rotation Action Grp. v. Cohen, 144 F. Supp. 2d 1, 6–8 (D.D.C. 2000).
D.
THE THUNDER BASIN FACTORS CONFIRM PLAINTIFFS’
CLAIMS ARE NOT PRECLUDED.
Even when there is evidence that Congress may have intended to
preclude review, courts look to the so-called “Thunder Basin factors,”
which apply a “presumption that Congress does not intend to limit
district court jurisdiction if ‘a finding of preclusion could foreclose all
meaningful judicial review’; if the suit is ‘wholly collateral to a statute’s
review provisions’; and if the claims are ‘outside the agency’s expertise.’”
Elgin, 567 U.S. at 15 (citing Thunder Basin) (cleaned up). Plaintiffs’
claims of unconstitutional coercion fit neatly within that framework.

39
1.
Preclusion Would Foreclose Meaningful Judicial
Review.
The panel opinion claimed that employees have an opportunity for
meaningful judicial review because they can simply get fired and then
challenge their terminations through administrative processes and
appeal to the Federal Circuit. Slip.Op.11. But that fundamentally
misunderstands the District Court’s holding. Plaintiffs challenge an
ongoing process that is causing irreparable constitutional harm. This is
a “‘here-and-now’ injury” that can only be “remedied by a court” now. Free
Enter. Fund, 561 U.S. at 513. The District Court correctly held that
employees face the “irreparable injury” of ongoing government coercion
to get vaccinated. ROA.1757. And if they give in (as most do to save their
livelihoods), they will not be subjected to a CSRA-covered adverse action
at all, meaning they “will not be able to obtain judicial review” of their
coercion claims “unless the district court hears it now.” Cochran, 20 F.4th
at 203.
The panel opinion and government therefore err by pointing to
types of post hoc CSRA relief—“reinstatement, backpay, and attorney’s
fees,” Slip.Op.11—as if those somehow provide a remedy for Plaintiffs’
claim of ongoing coercion, for which there is no post hoc remedy in the

40
CSRA. And even if those coerced employees could bring such a claim
through the CSRA, the Merit Systems Protection Board has no power to
undo a permanent and irreversible vaccination.
As noted above, the panel also posited a far-fetched scenario where
employees could try to challenge the vaccine mandate by filing petitions
with OSC. Slip.Op.12. But under the Supreme Court’s precedents, “we
presume that Congress does not intend to limit jurisdiction if ‘a finding
of preclusion could foreclose all meaningful judicial review.’” Free Enter.
Fund, 561 U.S. at 489 (emphasis added). The test is therefore not
whether meaningful review must be foreclosed or even likely would be
foreclosed—but simply whether it “threatens to deprive [plaintiffs] of the
opportunity” to raise challenges. Cochran, 20 F.4th at 199.
“To be sure, it is possible that [a Plaintiff] could ultimately wind her
way through enforcement proceedings and get some later chance at
judicial review—but it is also possible that she could never have that
opportunity, and that is enough to preserve district court jurisdiction.”
Cochran, 20 F.4th at 210 (emphasis added). And that is also enough to
resolve this Thunder Basin factor in favor of Plaintiffs.

41
2.
Plaintiffs’ Claims Are Collateral to the CSRA.
The Supreme Court has indicated that whether a claim is collateral
to the CSRA depends on whether the plaintiffs “request[] relief that the
CSRA routinely affords.” Elgin, 567 U.S. at 22.
As Judge Barksdale’s dissent explained, declaring void an executive
order that puts millions of employees to an illegal and impossible choice
is hardly “relief that the CSRA routinely affords.” Elgin, 567 U.S. at 22;
Slip.Op.17–18 (Barksdale, J., dissenting). It is therefore collateral to the
CSRA regime.
The panel opinion quoted Elgin as alleged support for the view that
Plaintiffs’ challenge is not collateral to the CSRA because this case
presents the “‘vehicle by which [Plaintiffs] seek’ to avoid imminent
‘adverse employment action.” Slip.Op.13 (quoting Elgin, 567 U.S. at 22).
But that is wrong for several reasons. First, as discussed above, Plaintiffs
challenge the ongoing unconstitutional coercion as a separate injury.
Second, the full quote from Elgin—which the panel opinion elided—
was that the plaintiffs were using their lawsuit as “the vehicle by which
they seek to reverse the removal decisions,” 567 U.S. at 22 (emphasis
added), which confirms the CSRA’s backward-looking focus. Plaintiffs do

42
not seek “to reverse” any covered employment actions. See Slip.Op.13
(acknowledging that “[P]laintiffs are not attempting to reverse any
previous discipline”).
Third, the government’s theory would render nearly every
challenge “non-collateral,” as there is almost always some related action
that the agency would be unable to achieve if the plaintiffs prevailed in
court. That cannot be reconciled with Supreme Court precedents, which
demonstrate that the mere collateral consequence of stopping underlying
substantive executive action does not automatically result in the
challenge being deemed non-collateral. In Free Enterprise Fund, for
example, the Court considered it self-evident that the petitioners’
“general challenge” to the PCAOB’s very “existence” was “collateral,”
even though that challenge, if successful, could have precluded PCAOB
from undertaking any actions whatsoever. 561 U.S. at 490.11

11 Other cases have likewise deemed “wholly collateral” certain
challenges that would ultimately have negated the executive’s power to
take certain actions. See McNary v. Haitian Refugee Center, Inc., 498 U.S.
479, 492 (1981) (deeming “collateral” a broad challenge to amnesty
determination procedures) (recounted in Thunder Basin, 510 U.S. at
213); Mathews v. Eldridge, 424 U.S. 319, 324–25, 330 (1976) (labeling
“entirely collateral” a due process challenge to administrative procedures
established for assessing the existence of a continuing disability); see also
Cochran, 20 F.4th at 207.

43
To be sure, Plaintiffs’ “requested relief would prohibit further use
of the [employment] regulation”—as has always been the case for pre-
enforcement challenges to regulations—“but [Plaintiffs] do[] not seek
individual relief for specific employee claims. The CSRA does not
preclude this type of rulemaking challenge.” Whipple, 636 F. Supp. 2d at
69.
3.
Agencies Have No Expertise Here.
The panel opinion suggested that agencies have sufficient expertise
in constitutional issues or might dispose of the case on some preliminary
question. Slip.Op.13–14. But the Supreme Court has held the opposite:
“agency adjudications are generally ill suited to address structural
constitutional challenges, which usually fall outside the adjudicators’
areas of technical expertise.” Carr v. Saul, 141 S. Ct. 1352, 1360 (2021).
Further, there is little basis to believe agencies could avoid
addressing the core separation-of-powers challenges to EO14043, given
that it imposes a requirement to be vaccinated. The only way for an
employee to avoid that requirement at the administrative level is to
argue that EO14043 is itself invalid—precisely the type of claim that
agencies have no expertise resolving.

44
* * *
For all these reasons, the District Court correctly concluded that it
had jurisdiction.
II.
THE DISTRICT COURT CORRECTLY HELD THAT THE VACCINE
MANDATE IS ULTRA VIRES.
A.
THE PRESIDENT LACKED STATUTORY POWER.
The District Court correctly held that none of the three statutory
sources invoked by the government—5 U.S.C. §§ 3301, 3302, and 7301—
provides the President with the power to issue a vaccine mandate for
millions of federal civilian employees. ROA.1761–62. In its briefing on
the preliminary injunction below, the government barely even defended
this point, spending only a single page on the matter, and thus many of
its arguments to this Court should be deemed forfeited. ROA.1545.
Moreover, the government has candidly acknowledged that “the statutes
here are narrow in scope.” Gov.Reply.Br.19. Too narrow, it turns out, to
support the vaccine mandate.
1.
Sections 3301 and 3302.
The District Court correctly held that the first two invoked
statutes—sections 3301 and 3302—grant the President only certain
limited powers not relevant here. ROA.1762. Those sections appear in a

45
subchapter of Title 5 entitled “Examination, Certification, and
Appointment,” and in a chapter entitled “Examination, Selection, and
Placement,” which confirms these statutes do not extend to whether
existing employees can keep their jobs. See Yates v. United States, 574
U.S. 528, 540 (2015) (headings “supply cues” to interpreting statutes).
The government tries to portray the District Court as befuddled
because it cited federal contractor mandate decisions when analyzing
§ 3301. Gov.EB.Br.36. But the language in § 3301 (“promote the
efficiency of [the civil] service”) parallels the language in 40 U.S.C. § 101
(“an economical and efficient system for” procurement), which the
government claims authorizes the contractor mandate. The District
Court was not confused; rather, it aptly cited cases rejecting the claim
that vaccines can be mandated on this “efficiency” basis, be it in § 3301
or § 101. ROA.1762.
The government has apparently abandoned its prior argument that
§ 3301’s “authority to establish requirements for new federal employees
logically includes the authority to modify requirements for existing
employees.” Gov.Br.37 (emphases added). Besides being forfeited, that
argument is meritless because it ignores that Congress prescribed

46
different authority governing entry into and management of the federal
workforce, using different language in entirely separate chapters of
Title 5.
The government next argues that § 3302’s “identification of specific
matters the President must address does not impliedly prohibit the
President from addressing other matters,” Gov.EB.Br.37, but this
argument was not raised below and is forfeited. In any event, the
President’s authority to “prescribe rules” must be interpreted in context
of the entire statute, which demonstrates its limited reach to subjects like
“exempt[ing] certain employees from civil-service rules and from certain
reports and examinations, and … prohibit[ing] marital and disability
discrimination.” ROA.1763. The District Court thus properly concluded
after reviewing the entirety of § 3302 that “not even a generous reading
of the text provides authority for a vaccine mandate.” ROA.1763; see
Adams v. Woods, 6 U.S. (2 Cranch) 336, 341 (1805) (“[G]eneral
expressions may be restrained by subsequent particular words, which
shew that in the intention of the legislature, those general expressions
are used in a particular sense[.]”). The government’s view would push the
word “rules” past its breaking point by allegedly authorizing the

47
President to impose public health measures and commandeer nearly
every aspect of federal employees’ lives.
2.
Section 7301.
The crux of the District Court’s decision turned on whether
requiring vaccination is “conduct” for purposes of 5 U.S.C. § 7301, which
states: “The President may prescribe regulations for the conduct of
employees in the executive branch.” But being vaccinated is not “conduct”
in its commonly understood sense. See THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE (1969) (“[t]he way a person acts;
behavior”); WEBSTER’S AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE
(1838) (“personal behavior; course of actions; deportment” or
“[m]anagement; mode of carrying on”). A permanent and irreversible
measure results in a status, not the regulation of conduct. That alone
resolves the matter. See Robinson v. California, 370 U.S. 660, 666–67
(1962) (distinguishing status and conduct).
The District Court correctly held that even assuming the vaccine
mandate regulates conduct, EO14043 is still ultra vires because § 7301
is best read as authorizing regulation of workplace and employment
conduct, and “[a]ny broader reading would allow the President to

48
prescribe, or proscribe, certain private behavior by civilian federal
workers outside the context of their employment.” ROA.1763.
The government claims there is no textual limitation to
employment conduct, Gov.EB.Br.34, but the government forfeited that
argument by not raising it in its opposition below. Anyway, the
government is wrong. Section 7301 expressly references conduct for those
“in the executive branch,” indicating a clear tie to conduct in their
executive branch capacity.
It also beggars belief that the simple word “conduct” authorizes
widespread vaccine mandates. First, the government has conceded that
§ 7301 is “narrow in scope.” Gov.Reply.Br.19. Second, setting aside
whether § 3301 would authorize a vaccine mandate for applicants, its
text—which specifically references “ascertain[ing] … health” for
applicants—differs noticeably from § 7301’s reference to regulating
“conduct” of current employees. Congress knows how to authorize
executive branch inquiries into individual health matters, but did not do
so in § 7301. Third, even OSHA lacks such power despite an enabling
statute authorizing the agency to ensure “every working man and woman
in the Nation safe and healthful working conditions.” 29 U.S.C. § 651; see

49
NFIB, 142 S. Ct. at 665–66. If a statute directly implicating employee
health and safety doesn’t authorize a vaccine mandate, then authority
over employee “conduct” doesn’t, either.
Moreover, implementation of §§ 3301, 3302, and 7301 has
historically been limited to regulating conduct in an executive branch
capacity, even when the targeted activity might occur outside the
workplace. See, e.g., 62 Fed. Reg. 43,451 (Aug. 9, 1997) (regulating
“exposure to tobacco smoke in the Federal workplace”); 77 Fed. Reg.
24,339 (Apr. 18, 2012) (“prevent[ing] domestic violence within the
workplace”).
The government’s invocation of President Reagan’s executive order
prohibiting illegal drug use is especially inapt given that drug use was
already illegal under other laws, and the CSRA provides that employees
can be immediately disciplined when there was “reasonable cause to
believe the employee has committed a crime for which a sentence of
imprisonment may be imposed.” 5 U.S.C. §§ 7513(b)(1), 7543(b)(1). In
addition, the executive order did not involve an irreversible status like
being vaccinated, and it narrowly applied only to those employees with
“sensitive positions,” not to every federal employee.

50
The other executive orders cited by the government involved the
regulation of conduct in or with a unique relationship to the workplace,
required employees to follow preexisting laws, or involved statutory
authority in addition to § 7301. Executive Order 10096, for example,
provided that the government shall take title to inventions by
government employees during workplace hours, using government
resources, or which arose from official duties. 15 Fed. Reg. 389 (Jan. 25,
1950). Although Executive Order 11491 stated that internal union
business should be conducted “during the non-duty hours of the
employees concerned,” it did nothing to mandate such out-of-work
meetings, merely prohibiting the use of working hours for those purposes.
34 Fed. Reg. 17,605, 17,614 (Oct. 31, 1969). And Executive Order 12674
similarly prohibited conflicts of interest that arose only because of federal
employment. 54 Fed. Reg. 15,159 (Apr. 14, 1989).12

12 The government invokes the Department of State circular of March 20,
1841, but that circular predates the civil service altogether, and its
substantive limits on political activity were later added in the Hatch Act,
Pub. L. No. 76-252, 53 Stat. 1147 (1939), confirming that Congress—not
the President acting unilaterally—has long played the leading role in
regulating employee conduct outside the workplace.

51
Again, none of these examples involved acts with permanent and
irreversible consequences outside the workplace, let alone medical
procedures. It is telling that these fragments of easily distinguishable
executive orders are the best precedents the government can muster. A
vaccine mandate with no unique significance to federal employment is
without precedent and amounts to “regulat[ing] the hazards of everyday
life.” NFIB, 142 S. Ct. at 665.
The government pivots by claiming vaccine mandates do regulate
workplace conduct, Gov.Br.34, but as the District Court ruled, that
theory is foreclosed by the Supreme Court’s NFIB decision, which held
that broad employee vaccine mandates are “public health measure[s]”
“untethered, in any causal sense, from the workplace,” and thus are not
“workplace safety standards,” 142 S. Ct. at 665, 666.
As the Sixth Circuit’s opinion about the contractor mandate
explains, all of the government’s historical examples are “modest, ‘work-
anchored’ measure[s] with an inbuilt limiting principle,” but a vaccine
mandate “requires vaccination everywhere and all the time”—“[i]t is not
‘anchored’ to the statutory text, nor is it even ‘anchored’ to the work of

52
federal contractors.” Kentucky, 23 F.4th at 608. The same is true for
federal employees.
When a general employment requirement has permanent and
irreversible consequences outside the workplace, it can no longer be
considered the regulation of “workplace conduct.” Rather, it is a general
health and safety measure unsupported by statutory text.
The breathtaking power asserted by the government confirms that
its interpretation of § 7301 is wrong. The government has never disputed
that its interpretation would provide the President with the authority to
order every “civilian employee[] in the Executive Branch,” Gov.EB.Br.33,
to forgo birth control, undergo mandatory abortions or surgeries, ingest
experimental or prescription medications, assume specific diets, or
almost anything else conceivably labeled as “conduct,” so long as the
government can assert some generic potential benefit. In fact, the
government claims that when it comes to federal civilian employees,
§ 7301 lets the President order or prohibit any “conduct” he wants, even
“off-duty conduct,” and even when it targets a person’s immutable
“status,” unless Congress has expressly “prohibited the President” from
doing so. Gov.EB.Br.33–35. There is no “logical stopping point” to this

53
claim, which would amount to “a de facto police power [of] the President.”
Kentucky, 23 F.4th at 608; ROA.1766.
The government apparently believes such an expansive assertion of
power is the only way it can justify EO14043. But that expansiveness
only confirms that EO14043 is ultra vires.
B.
SEVERAL CLEAR-STATEMENT DOCTRINES CONFIRM THE
LACK OF STATUTORY AUTHORITY.
Even if these statutes were ambiguous about the President’s power
to mandate medical procedures, several clear-statement doctrines
confirm that the President’s generic authority to issue “rules” and
regulate “conduct” does not include the power to issue a broad vaccine
mandate. See West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022)
(requiring more than a “colorable” or “plausible textual basis”).
To begin, the Supreme Court has already recognized that
widespread federal vaccine mandates implicate the major-questions
doctrine, see NFIB, 142 S. Ct. at 665, which requires Congress to “speak[]
clearly” when it delegates “powers of ‘vast economic and political
significance,’” Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021).
That requirement is triggered here because the government asserts
breathtaking power over every aspect of millions of employees’ lives,

54
including highly controversial issues like vaccine mandates, as discussed
above.
The federalism clear-statement canon is also directly implicated
because this Court has made clear that “to mandate that a person receive
a vaccine or undergo testing falls squarely within the States’ police
power.” BST Holdings, 17 F.4th at 617. This canon applies despite
employees’ federal nexus. By imposing a generally applicable vaccine
mandate on millions of federal employees, which carries permanent and
irreversible non-workplace consequences, the government is not
regulating federal employees qua employees but rather is imposing a
general public-health measure. As the Sixth Circuit held in the context
of the contractor mandate, the government is “fram[ing] the issue at the
wrong level of generality” by focusing solely on the federal nexus of the
group targeted, rather than the action taken. Kentucky, 23 F.4th at 610.
It “certainly” implicates the federalism clear-statement canon “when the
federal government seeks to usurp [the States’] roles by doing something
that [the federal government] has no traditional prerogative to do—
deploy [regulations] to mandate an irreversible medical procedure.” Id.

55
A third clear-statement doctrine provides that “[w]here an
administrative interpretation of a statute invokes the outer limits of
Congress’ power,” Congress must provide “a clear indication that [it]
intended that result.” Solid Waste Agency v. U.S. Army Corps of Eng’rs,
531 U.S. 159, 172 (2001). This Court has held that broad vaccine
mandates are at the outer limits of Congress’s power. BST Holdings, 17
F.4th at 617.
Consistent with these clear-statement rules, when Congress
authorizes mandatory vaccinations, it has done so expressly, including in
areas where the President has inherent Article II power. See 8 U.S.C.
§ 1182(a)(1)(A)(ii) (mandating vaccines in immigration context). But
Congress did not do so here.
The government previously argued that these clear-statement
doctrines apply only when the government invokes Chevron deference.
ROA.1546. That is wrong. The Supreme Court has repeatedly applied the
major-questions doctrine when the government did not seek Chevron
deference. NFIB, 142 S. Ct. at 665; Ala. Ass’n, 141 S. Ct. at 2489.
For the same reason, the Court should reject the government’s
argument—made only in passing below and thus forfeited—that the

56
canons apply to agency action but not to exercises of “presidential …
authority.” ROA.1546; Gov.EB.Br.39. Agency actions always involve
presidential authority because the executive power is vested in the
President, see U.S. Const. art. II, § 1, and agencies are overseen by and
report to the President. If anything, canons like the major-questions
doctrine apply more strongly when the President’s actions are directly at
issue. The major-questions doctrine “appl[ies] … in service of” the
nondelegation doctrine, Gundy v. United States, 139 S. Ct. 2116, 2142
(2019) (Gorsuch, J., dissenting), which the Supreme Court has applied
most stringently to authority delegated directly to the President, see
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935);
Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).
Finally, if Congress did give the Executive such dramatic power,
uncabined by statutory text, it would violate the nondelegation doctrine,
see Gundy, 139 S. Ct. at 2134–37 (Gorsuch, J., dissenting), but the Court
can avoid that issue by narrowly interpreting the statutory text, see
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646
(1980)
(plurality);
ROA.123.
Despite
the
government’s
claim,
Gov.EB.Br.40, the vaccine mandate here is no mere trivial regulation of

57
employment. It is a general health-and-safety measure and subject to
standard nondelegation analysis as such.
C.
THE PRESIDENT LACKED INHERENT ARTICLE II POWER TO
ISSUE THE VACCINE MANDATE.
The District Court also correctly held that the President lacked
inherent Article II authority to issue the vaccine mandate. ROA.1765; cf.
BST Holdings, 17 F.4th at 618 (“Nor can the Article II executive breathe
new power into OSHA’s [statutory] authority.”).
Critically, the government does not argue that any part of the
CSRA is unconstitutional, which forecloses reliance on inherent Article
II power to circumvent the strictures of that statute. This Court can
therefore assume without deciding that the CSRA’s requirements are
constitutional. Congress carefully prescribed specific and varying
requirements governing entry into and management of the federal
workforce, which would all become superfluous if the President could
simply invoke Article II.
Moreover, conspicuously missing from the government’s brief is any
example of any President in the Nation’s history who invoked inherent
Article II authority to impose medical procedures of any type on civilian
employees—let alone every employee. “The dearth of analogous historical

58
examples is strong evidence that [the provision] does not contain such a
power,” especially given that “the threat of absenteeism is hardly unique
to COVID-19.” Kentucky, 23 F.4th at 608; see FTC v. Bunte Brothers, Inc.,
312 U.S. 349, 352 (1941).
The government vaguely argues that refusal by line-level
employees to confirm their vaccinated status somehow interferes with
the President’s “executive power,” but the District Court made short work
of that theory. ROA.1765–66. Vaccination status in no way interferes
with the President’s ability to direct how the law should be executed. The
government’s invocation of Seila Law LLC v. CFPB, 140 S. Ct. 2183
(2020); Gov.EB.Br.27, is inapplicable for two reasons. First, that case
references the President’s “administrative control” over certain officials,
but mandating a permanent and irreversible medical procedure is hardly
a mere “administrative” requirement. Second, Plaintiffs are line-level
employees, not high-level “Officers of the United States” who exercise
significant authority and are personally accountable to the President.
The distinction between high-level officers and line-level employees dates
back at least to the Supreme Court’s seminal decision in Myers v. United
States, 272 U.S. 52 (1926), which held that “the merit system rests with

59
Congress,” id. at 174, even though the President had constitutional power
to “remov[e] executive officers of the United States whom he has
appointed by and with the advice and consent of the Senate,” id. at 106.
The CSRA limits whatever inherent authority the President might
otherwise have to set the terms of civilian employment, and that is
dispositive given that the government never contends the CSRA is
unconstitutional.
* * *
Any interpretation giving the President such unfettered power over
line-level federal employees would need to be based on clear textual or
historical evidence—but the government has neither. A merely
“colorable” or “plausible textual basis” will not do. W. Virginia, 142 S. Ct.
at 2609. The District Court correctly held that the vaccine mandate is
ultra vires.
III. AGENCIES’ IMPLEMENTATION OF THE MANDATE VIOLATES THE
APA.
Although the District Court and panel did not reach the issue, the
APA provides an alternative basis for affirmance. Rather than repeat
that analysis verbatim, Plaintiffs respectfully direct the Court to their
prior briefing on this matter at the panel stage. Pls.Br.47–54.

60
IV.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING
THAT PLAINTIFFS FACE IMMINENT, IRREPARABLE HARM.
“To show irreparable injury if threatened action is not enjoined, it
is not necessary to demonstrate that harm is inevitable and irreparable.”
Humana, Inc. v. Avram A. Jacobson, M.D., 804 F.2d 1390, 1394 (5th Cir.
1986). “The plaintiff need show only a significant threat of injury from
the impending action, that the injury is imminent, and that money
damages would not fully repair the harm.” Id. (emphasis added). That is,
even if money could partially repair the harm, it can still justify a
preliminary injunction. A district court’s finding here is reviewed only for
an abuse of discretion. Texas v. Biden, 20 F.4th 928, 1001 (5th Cir. 2021).
This Court has already held that the unusual nature of putting
employees to the choice of “their job(s) and their jab(s)” is irreparable—
infringing on what this Court has called “the liberty interests of reluctant
individual recipients”—and that resolves the matter here. ROA.1760;
BST Holdings, 17 F.4th at 618; see ROA.776; see also Sambrano v. United
Airlines, Inc., No. 21-11159, 2022 WL 486610, at *24 (5th Cir. Feb. 17,
2022) (Smith, J., dissenting) (“When government exceeds the consent of
the governed to deny the rights it has sworn to protect, that betrayal is a
unique, freestanding, and immeasurable injury.”). This case is even

61
easier because, unlike the private employees in BST Holdings, federal
employees have no option to be tested in lieu of vaccination.
Even employees with pending medical and religious exemption
requests would be subject to immediate and irreparable harm. Consider
CIA employee George O’Sullivan, a Purple Heart recipient and 100%
service-disabled veteran, whose religious objection was deemed bona fide,
yet he was offered the “accommodation” of either being immediately
disciplined or demoted with a $60,000 pay cut. ROA.1817. The
government has thus demonstrated that it will compel religious
adherents to “accept” vaccinations or demotions, and—just like those
coerced into being vaccinated to save their jobs—thereby forgo any
potential challenge to the vaccine mandate because they will have
“voluntarily” been vaccinated or demoted.
Plaintiffs would also suffer other forms of irreparable harm. For
instance, the District Court followed established Fifth Circuit precedent
holding that there was no abuse of discretion in finding that government
action “injur[ing]” an employee’s “ability to procure comparable
employment was sufficient to satisfy irreparable injury.” Burgess v.
FDIC, 871 F.3d 297, 304 (5th Cir. 2017); ROA.1760. The “comparable

62
employment” language defeats the government’s claim that Burgess
applies only where an employee would face “complete exclusion” from all
jobs. Gov.EB.Br.44. Rehashing its incorrect CSRA claim, the government
contends Burgess does not apply here because the CSRA provides a
complex review scheme, but Burgess itself dealt with a reticulated federal
discipline and review system inside the FDIC.
Further, employees with religious objections face a “crisis of
conscience” that is irreparable: either choose between their jobs or their
religious beliefs. See Sambrano v. United Airlines, Inc., 19 F.4th 839, 841
(5th Cir. 2021) (Ho, J., dissenting); Sambrano, 2022 WL 486610, at *1;
ROA.76; ROA.77. The government claims those with pending religious
exemptions do not face any harm, but that is wrong, as shown by
employees like Mr. O’Sullivan, discussed above. ROA.1817.
Plaintiffs also introduced below an affidavit from an employment
expert—to which the government has forfeited any objection—stating
that federal employees who resist the vaccine mandate will incur unique
reputational harm and difficulty finding alternative employment that
would never apply to mine-run federal employment actions because the

63
President labeled these employees lawbreakers and “kill[ers].”
ROA.1184–85.
There are also the thousands of personal stories that the
government has disregarded in its relentless campaign. For example, if
Plaintiff Joshua Roberts loses his DHS job, he would likely be deemed
unfit to adopt the two infants he and his wife have fostered since the
babies were only a few weeks old. ROA.1227. If that is not irreparable,
nothing is.
Nor can the government demonstrate that the harms described
above were not imminent. The government’s coercion campaign reached
a fevered frenzy just before the injunction was issued, as agencies
informed the media that discipline was imminent for those employees
who were hold-outs—and the discipline would increase in severity for the
express purpose of putting maximum coercive pressure on employees. See
Alex Gangitano & Morgan Chalfant, Federal Agencies Prepare to Act
Against
Unvaccinated
Employees,
THE
HILL
(Jan.
9,
2022),
https://thehill.com/homenews/administration/588836-federal-agencies-
prepare-to-act-against-unvaccinated-employees/.
After
the
panel
decision issued in April, “agencies such as CBP have already begun

64
planning how to target employees who refuse to cooperate” if the vaccine
mandate were to go back into effect. Anna Giaritelli, Thousands of
Unvaccinated Border Patrol Agents Fear for Their Future, WASH.
EXAMINER (June 7, 2022), https://www.washingtonexaminer.com/news/
thousands-of-unvaccinated-border-patrol-agents-fear-for-their-future.
For these reasons, the district court did not abuse its discretion in
finding irreparable harm.
V.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING
THAT THE PUBLIC INTEREST AND BALANCE OF HARMS FAVOR
PLAINTIFFS.
To be sure, “the public has a strong interest in combating the spread
of [COVID-19]. But our system does not permit agencies to act unlawfully
even in pursuit of desirable ends.” Ala. Ass’n, 141 S. Ct. at 2490; BST
Holdings, 17 F.4th at 618 (“Any interest [the government] may claim in
enforcing an unlawful” regulation “is illegitimate.”). The illegality of the
vaccine mandate resolves the matter. The public interest is “served by
maintaining our constitutional structure and maintaining the liberty of
individuals to make intensely personal decisions according to their own
convictions.” BST Holdings, 17 F.4th at 618. The District Court also
correctly held—again, reviewable only for an abuse of discretion—that

65
the public interest will not be served “by terminating unvaccinated
workers who provide vital services to the nation.” ROA.1768.
In terms of balance of harms between the parties, Plaintiffs
submitted over a dozen affidavits demonstrating several forms of
irreparable harm, as demonstrated above. By contrast, the government’s
opposition to Plaintiffs’ motion for a preliminary injunction failed to
include any affidavit on the harms the government would allegedly suffer
from an injunction. As a result, the Court should deem the government’s
subsequent claims of harm forfeited. But even if the Court did consider
those untimely claims, they are unpersuasive.
First, the government itself has demonstrated that it faces no
irreparable harm from being unable to enforce the vaccine mandate.
Before the injunction issued, the government delayed the effective date
of the mandate repeatedly, for months at a time. This delay included the
winter holidays, despite the government simultaneously warning of a
“surge upon a surge” of cases. Noah Higgins-Dunn, Dr. Fauci Warns the
U.S. Will See a ‘Surge Upon a Surge’ of Covid Cases Following the
Holidays, CNBC (Dec. 1, 2020), https://www.cnbc.com/2020/12/01/dr-
fauci-warns-the-us-will-see-a-surge-upon-a-surge-of-covid-cases-

66
following-the-holidays.html. This suggests the government’s sense of
urgency depends largely on public optics, not actual harm.
Moreover, the Task Force recently recommended that agencies (1)
“pause” the collection of employees’ vaccine information and (2) treat
vaccinated and unvaccinated employees the same. Task Force, Initial
Implementation Guidance for Federal Agencies 3 (Aug. 17, 2022),
https://www.saferfederalworkforce.gov/downloads/Initial%20Implement
ation%20Guidance_CDC%20Streamline_20220817.pdf. The government
can no longer plausibly contend that irreparable harm will result from
being unable to enforce the vaccine mandate.
Before this Court, the government has expressly disclaimed any
reliance on workplace spread of COVID-19 as a basis for the vaccine
mandate, insisting that the purpose of the vaccine mandate “is not to
protect employees from workplace hazards,” but rather to “prevent the
workplace disruption that occurs when federal employees become ill or
are quarantined because of COVID-19.” Gov’t.Reply.Br.15. But even that
argument is severely undercut by the Task Force’s latest guidance. And
the claim of potential absenteeism is contradicted by the government’s
statements to the media that agencies could fire or suspend all non-

67
compliant employees without suffering operational concerns. Gangitano
& Chalfant, supra.
Second, the injunction has now been in place for over seven months,
without evidence of irreparable harm to the government.
Third, the government has previously argued that it is irreparably
harmed because “allowing the continued service” of unvaccinated
employees “will damage good order and discipline.” Gov.CA5.Addend.27.
That is Orwellian: either comply with an illegal requirement, or the
government will claim your lack of compliance hurts morale and thereby
justifies keeping the illegal requirement in place.
VI.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING
THAT CLEAR AND BROAD RELIEF IS APPROPRIATE.
The government cannot show the District Court abused its
discretion by granting broad relief. Texas, 809 F.3d at 187. The District
Court noted that it “always will be terribly reluctant to go nationwide on
injunctive relief,” ROA.1858; but it was ultimately persuaded by the
“unique facts” of this case, ROA.1770.
First, the President’s own Task Force has announced that
“consistency across government in enforcement of this government-wide

68
policy is desired.” ROA.810. There is no abuse of discretion in imposing
the same relief that Defendants want.
Second, broad relief complies with Louisiana v. Becerra, 20 F.4th
260 (5th Cir. 2021), which endorsed broad injunctions where the
“circumstances” of the case call for it, such as when there is “a concern
that ‘a geographically-limited injunction would be ineffective.’” Id. Lead
Plaintiff F4MF has over 6,000 registered members “spread across every
state and in nearly every federal agency.” ROA.1770. Intake survey data
demonstrate that over 90% of F4MF members are federal employees. The
government pejoratively questions whether these public servants are
truly “members” of F4MF, Gov.EB.Br.48, but F4MF has already
demonstrated via sworn declaration that it has standard indicia of
membership like leaders who are members, and approximately 1,000
members have made significant financial contributions to fund this
litigation. Pls.Addend.1.
Given the vast size of the membership body and its constantly
changing characteristics—e.g., employees moving between states/
countries or agencies—there was no narrower scope of relief that could

69
be determined ex ante that would also guarantee “complete relief” to
F4MF’s members. Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
Thus, by finding that tailored relief is not “practical in this case,”
ROA.1770, the District Court was indicating there are so many affected
individuals that, without a clear and broad injunction, Defendants would
undoubtedly impose harm on many people who had received judicial
relief. See League of Women Voters of United States v. Newby, 838 F.3d 1,
8–9 (D.C. Cir. 2016) (“As a preliminary injunction requires only a
likelihood of irreparable injury, Damocles’s sword does not have to
actually fall on all appellants before the court will issue an injunction.”).
The government insists it could “easily” track thousands of F4MF
members, Gov.Br.49, but the government has a poor track record of
erroneously targeting employees. See ROA.1454; ROA.1464; ROA.1600;
ROA.1625; ROA.1645.13
Third, the government’s request to resume “process[ing]”
exemption requests is especially insidious. Gov.Br.45. The government

13 The government suggests in passing that only F4MF members at the
time of the Complaint are entitled to relief. Gov.EB.Br.48. The
government cites no authority for this theory. The lead Plaintiff is a
membership organization, meaning the benefits of an ongoing injunction
inure to that membership, including as it shrinks or grows.

70
has claimed that employees subject to that process “would not be
injured.” Gov.Mot.21. But remember CIA employee George O’Sullivan,
the Purple Heart recipient and 100% service-disabled veteran discussed
above. He was railroaded into a massive demotion despite a finding that
his religious objection was sincere—shocking conduct for the federal
government. ROA.1817. Ironically, the Chair of the CIA’s accommodation
committee submitted a sworn affidavit to the District Court stating that
“the CIA maintains a diverse, inclusive, equitable, and accessible
workplace where differences are valued, and conflicts are managed
constructively.” ROA.1592. “Inclusive” and “constructive,” indeed.
CONCLUSION
The Court should affirm the preliminary injunction.14

14 If the Court reverses, Appellees request that it stay its mandate
pending their subsequent petition for a writ of certiorari because this
case raises at least “a substantial question,” and “there is good cause for
a stay,” Fed.R.App.P.41(d)(1), namely that it would minimize disruption
and the need for emergency motions practice.

71
August 26, 2022

Respectfully submitted,
/s/ R. Trent McCotter

C. Boyden Gray
R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
Jared M. Kelson
BOYDEN GRAY & ASSOCIATES
801 17th Street NW, Suite 350
Washington, DC 20006
202-706-5488
mccotter@boydengrayassociates.com

Counsel for Plaintiffs-Appellees

72
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume
limitations of Fifth Circuit Rule 32 and Federal Rule of Appellate
Procedure 32(a)(7)(B) because it contains 12,998 words, excluding the
portions exempted by Rule 32(f). This brief complies with the typeface
and type style requirements of Federal Rule of Appellate Procedure Rule
32(a)(5)–(6) because it has been prepared in a proportionally spaced
typeface using Microsoft Word in Century Schoolbook and 14-point font

August 26, 2022
/s/ R. Trent McCotter

BOYDEN GRAY & ASSOCIATES PLLC

801 17th Street NW, Suite 350

Washington, DC 20006

73
CERTIFICATE OF SERVICE
I hereby certify that all counsel of record who have consented to
electronic service are being served today with a copy of this document via
the Court’s CM/ECF. All parties in this case are represented by counsel
consenting to electronic service.