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

Record facts

U.S. Court of Appeals for the Fifth Circuit (en banc) · No. 22-40043 · Doc. 304-1 · 2023-03-23 · Docket on CourtListener

Full text

1 
 
United States Court of Appeals 
for the Fifth Circuit 
 
 
No. 22-40043 
 
 
Feds for Medical Freedom; Local 918, American 
Federation of Government Employees; Highland 
Engineering, Incorporated; Raymond A. Beebe, Jr.; John 
Armbrust; et al., 
 
Plaintiffs—Appellees, 
 
versus 
 
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. 
 
 
Appeal from the United States District Court  
for the Southern District of Texas 
USDC No. 3:21-CV-356 
 
 
Before Richman, Chief Judge, and Jones, Smith, Barksdale, 
Stewart, Dennis, Elrod, Southwick, Haynes, Graves, 
Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, 
and Wilson, Circuit Judges. 
United States Court of Appeals 
Fifth Circuit 
FILED 
March 23, 2023 
 
Lyle W. Cayce 
Clerk 
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Andrew S. Oldham, Circuit Judge, joined by Jones, Smith, 
Barksdale, Elrod, Willett, Ho, Duncan, Engelhardt, and 
Wilson, Circuit Judges:∗  
 
The primary question presented is whether we have jurisdiction over 
pre-enforcement challenges to President Biden’s vaccine mandate for federal 
employees. We do. On the merits, we affirm the district court’s order.  
I. 
On September 9, 2021, President Biden issued Executive Order 
14043, which generally required all federal employees to be vaccinated. 
Employees who didn’t comply would face termination. He also issued 
Executive Order 14042, imposing the same requirements and punishments 
for federal contractors.  
Feds for Medical Freedom is a non-profit organization with over 
6,000 members employed by numerous federal agencies and contractors. 
Feds for Medical Freedom, along with a chapter of the American Federation 
of Government Employees and more than 50 individual plaintiffs, sued for 
declaratory and injunctive relief against the enforcement of both mandates.  
Plaintiffs raised several constitutional and statutory claims. First, they 
asserted constitutional objections. They argued that the President did not 
have inherent Article II authority to issue either mandate. And any purported 
congressional delegation of such power violated either the major questions 
doctrine or the non-delegation doctrine. Second, they claimed both mandates 
were arbitrary, capricious, and otherwise not in accordance with law under 
the Administrative Procedure Act (“APA”). And the contractor mandate 
 
∗ Judge Willett joins all except Part VI.  Judge Douglas was not a member 
of the court when this case was submitted to the court en banc and did not participate in 
this decision. 
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violated the APA because it was not in accordance with law. Finally, they 
sought relief under the Declaratory Judgment Act (“DJA”).  
The day after filing their complaint, plaintiffs sought preliminary 
injunctions against both mandates. The district court declined to enjoin the 
contractor mandate because it was already the subject of a nationwide 
injunction. But it enjoined the employee mandate on January 21, 2022. The 
Government timely appealed that injunction.  
On an expedited appeal, a divided panel of our court vacated the 
injunction. See Feds for Medical Freedom v. Biden, 30 F.4th 503 (5th Cir. 2022). 
The panel majority held “that the [Civil Service Reform Act of 1978 
(“CSRA”)] precluded the district court’s jurisdiction. Accordingly, the 
plaintiffs’ claim for preliminary injunctive relief fails because they have not 
shown a substantial likelihood of success on the merits. We do not reach the 
parties’ arguments regarding the other requirements for a preliminary 
injunction.” Id. at 511. Judge Barksdale dissented. We granted 
rehearing en banc, vacating the panel opinion. See Feds for Medical Freedom v. 
Biden, 37 F.4th 1093 (5th Cir. 2022).  
II. 
 
“Jurisdiction is always first.” Carswell v. Camp, 54 F.4th 307, 310 (5th 
Cir. 2022) (quotation omitted). Congress gave federal district courts 
jurisdiction over “all civil actions arising under the Constitution, laws, or 
treaties of the United States.” 28 U.S.C. § 1331. It’s undisputed that 
plaintiffs’ claims arise under federal law, both constitutional and statutory. 
It’s also undisputed that the CSRA nowhere expressly repeals district courts’ 
§ 1331 jurisdiction over plaintiffs’ claims. The Government’s contention, 
however, is that the CSRA implicitly repeals § 1331 jurisdiction over 
plaintiffs’ claims.  
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Implicit jurisdiction-stripping turns on whether it’s “fairly 
discernible” from the statutory scheme that Congress silently took away the 
jurisdiction that § 1331 explicitly conferred. “To determine whether it is 
‘fairly discernible’ that Congress precluded district court jurisdiction over 
petitioners’ claims, we examine the CSRA’s text, structure, and purpose.” 
Elgin v. Dep’t of Treasury, 567 U.S. 1, 10 (2012) (citations omitted). We (A) 
begin with the CSRA’s text and structure. Then we (B) discuss the statute’s 
purpose. Then we (C) hold that the CSRA does not apply to the plaintiffs’ 
claims and hence does not implicitly displace § 1331 jurisdiction.  
A. 
 
We begin with the CSRA’s text and structure. The CSRA’s 
“statutory framework provides graduated procedural protections depending 
on an [employment] action’s severity.” Kloeckner v. Solis, 568 U.S. 41, 44 
(2012). Two parts of that graduated procedural framework are central to this 
case.  
 
The first is codified at Chapter 23. See 5 U.S.C. §§ 2301 et seq. Chapter 
23 is the bottom of the CSRA’s pyramid. It governs the least severe 
employment actions the Government can take and provides concomitantly 
fewer procedural protections and remedies for federal employees aggrieved 
by those employment actions.  
Specifically, Chapter 23 prohibits federal employers from using a 
“prohibited personnel practice,” id. § 2302(a)(1), (b), to take a certain 
“personnel action,” id. § 2302(a)(2)(A). Chapter 23’s “prohibited 
personnel practice[s]” include various forms of discrimination (race, age, 
sex, &c.), nepotism, and retaliation for whistleblowing. See id. § 2302(b)(1) 
(discrimination), (b)(7) (nepotism), (b)(8) (whistleblowing). The triggering 
“personnel action[s]” are limited to the following twelve things: 
(i) an appointment; 
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(ii) a promotion; 
(iii) an action under chapter 75 of this title or other disciplinary 
or corrective action; 
(iv) a detail, transfer, or reassignment; 
(v) a reinstatement; 
(vi) a restoration; 
(vii) a reemployment; 
(viii) a performance evaluation under chapter 43 of this title or 
under title 38; 
(ix) a decision concerning pay, benefits, or awards, or 
concerning education or training if the education or training 
may reasonably be expected to lead to an appointment, 
promotion, performance evaluation, or other action described 
in this subparagraph; 
(x) a decision to order psychiatric testing or examination; 
(xi) the implementation or enforcement of any nondisclosure 
policy, form, or agreement; and 
(xii) any other significant change in duties, responsibilities, or 
working conditions; 
Id. § 2302(a)(2)(A). Chapter 23’s personnel actions obviously do not include 
severe measures such as demotions or terminations.1  
 
1 Section 2302(a)(2)(A)(iii) (“romanette iii”) cross-references “an action under 
chapter 75 of this title.” Chapter 75 does not use the phrase “personnel action” but instead 
uses the phrase “an action.” 5 U.S.C. §§ 7502, 7512 (subchapter titles); see also id. 
§ 7513(a), (b), (d), (e) (referring to “an action” taken against a federal employee). By virtue 
of romanette iii’s cross-reference, “personnel action” includes both a Chapter 23 
personnel action and a Chapter 75 action. Throughout this opinion, we use “Chapter 23 
 
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Given that Chapter 23 applies only to relatively mild personnel 
actions, Chapter 23’s review mechanisms are also relatively modest. When a 
federal employee suffers a Chapter 23 “personnel action” based on a 
“prohibited personnel practice,” the employee can file an allegation with the 
Office of Special Counsel (“OSC”). Id. §§ 1214(a), 2302. The OSC, in turn, 
can terminate the matter or refer it to the Merit Systems Protection Board 
(“MSPB”). Id. § 1214(a)(2) (termination), (b) (referral). The employee can 
then seek judicial review of the MSPB’s final order in the United States 
Court of Appeals for the Federal Circuit. Id. §§ 1214(c), 7703(b)(1)(A). 
Judicial review for Chapter 23 personnel actions is extremely limited, 
however. As then-Judge Scalia explained: “judicial scrutiny [is] limited, at 
most, to insuring compliance with the statutory requirement that the OSC 
perform an adequate inquiry.” Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir. 
1983) (quotation omitted). 
The second part of the CSRA’s graduated procedural framework is 
codified at Chapter 75. See 5 U.S.C. §§ 7501 et seq. Chapter 75 forms the top 
of the CSRA’s pyramid and governs the most-severe employment actions—
such as suspensions, reductions in pay, and terminations. Id. §§ 7502, 
7512(1)–(5). When the Government proposes a suspension of fourteen days 
or less, the covered employee is entitled to notice, the opportunity to 
respond, the right to an attorney, and the right to a written decision. Id. 
§ 7503(b)(1)–(4). When the Government proposes any other Chapter 75 
action, the covered employee receives these same protections, id. § 7513(b), 
 
personnel actions” to refer to the non-Chapter-75, less-severe employment actions listed 
in § 2302. We use “Chapter 75 personnel actions” or “Chapter 75 actions” to refer to the 
more-severe employment actions such as demotion and termination listed in § 7512. And 
unless context dictates otherwise, we use “personnel actions” or “CSRA-covered 
personnel actions” to include any employment actions covered by the CSRA. 
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and can also appeal to the MSPB, id. § 7513(d), and to the Federal Circuit, 
id. § 7703(b)(1)(A). 
Where a covered employee challenges a covered personnel action, the 
CRSA’s review mechanisms are “exclusive.” Elgin, 567 U.S. at 13–14. Take 
for example McAullife v. Rice, 966 F.2d 979 (5th Cir. 1992). There, a CSRA-
covered employee challenged the Chapter-75-covered termination of her 
employment—but she tried to do it in the Western District of Texas under 
the APA, rather than in the MSPB and Federal Circuit under the CSRA. See 
id. at 979. We rejected the attempt because the CSRA provides the exclusive 
jurisdictional (and remedial) font for covered federal employees when they are 
challenging CSRA-covered personnel actions. See ibid.  
 
The italicized clause is very important for two reasons. First, the 
Supreme Court has been clear that the CSRA eliminates § 1331 jurisdiction 
only for personnel actions covered by the CSRA. For example, in United 
States v. Fausto, 484 U.S. 439 (1988), the Court said the CSRA “displays a 
clear congressional intent to deny the excluded employees the protections of 
Chapter 75—including judicial review—for personnel action covered by that 
chapter.” Id. at 447 (emphasis added). Likewise in Elgin, the Court repeatedly 
limited its holding to the CSRA’s jurisdictional effects on “a covered 
employee challeng[ing] a covered action,” 567 U.S. at 13; “a covered 
employee’s appeal of a covered action,” ibid.; and “a covered employee 
[attempting to] challenge a covered employment action first in a district 
court,” id. at 14 (all emphases added); see also id. at 10, 20–21 (reiterating the 
limitation). The Court has never suggested—much less held—that the 
CSRA implicitly strips § 1331 jurisdiction over federal employees’ claims 
outside the CSRA’s covered personnel actions. See Bosco v. United States, 931 
F.2d 879, 883 (Fed. Cir. 1991) (“The Supreme Court did not rule that the 
CSRA provided the only means of judicial review of any actions affecting 
federal employees, but rather that it was the only means of review as to the 
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types of adverse personnel action specifically covered by the CSRA . . . .” 
(emphases in original)). 
 
Second, the Court has expressly said the opposite—that the CSRA 
does nothing to affect jurisdiction outside of its covered personnel actions: 
Not all personnel actions are covered by this [CSRA] system. 
For example, there are no provisions for appeal of either 
suspensions for 14 days or less or adverse actions against 
probationary employees. In addition, certain actions by 
supervisors against federal employees, such as wiretapping, 
warrantless searches, or uncompensated takings, would not be 
defined as ‘personnel actions’ within the statutory scheme. 
Bush v. Lucas, 462 U.S. 367, 385 n.28 (1983) (citations omitted). In 
accordance with this express command, federal courts across the country 
have time and again held that the CSRA does not strip § 1331 jurisdiction 
when federal employees challenge something other than a CSRA-covered 
personnel action. For example, installing a hidden camera in the women’s 
changing area of a VA medical center is not a CSRA-covered personnel action 
and hence can be challenged outside the CSRA. See Gustafson v. Adkins, 803 
F.3d 883, 888 (7th Cir. 2015) (“Under the plain language of the statute, the 
term ‘personnel action’ does not encompass Adkins’s conduct . . . [of] 
installing the hidden camera . . . .”). Same with assaulting a federal employee. 
See Orsay v. DOJ, 289 F.3d 1125, 1131 (9th Cir. 2002), abrogated on other 
grounds by Millbrook v. United States, 569 U.S. 50 (2013) (“Claxton’s alleged 
aiming of a loaded weapon at Appellants does not fit any of the CSRA’s 
definitions of ‘personnel action.’ Consequently, the CSRA does not bar 
Appellants’ [Federal Tort Claims Act] claims . . . .”); Brock v. United States, 
64 F.3d 1421, 1425 (9th Cir. 1995) (sexual assault). Same with libeling a 
federal employee. See Gutierrez v. Flores, 543 F.3d 248, 253–54 (5th Cir. 
2008) (holding the CSRA does not apply or strip jurisdiction because “this 
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case does not involve . . . any adverse employment action”). And same with 
illegally searching a federal employee’s home. See Collins v. Bender, 195 F.3d 
1076, 1080 (9th Cir. 1999) (“[W]e do not believe that Congress intended to 
deputize government supervisors as chieftains of security forces that police 
the private lives of their employees subject only to some administrative 
oversight, and we do not believe that Congress meant to shoehorn into the 
CSRA every odd occurrence where a supervisor forms and leads such a 
renegade posse.”). 
 
Consider for example the Third Circuit’s recent decision in 
Manivannan v. DOE, 42 F.4th 163 (3d Cir. 2022). In that case, DOE 
attempted to fire a CSRA-covered scientist and then allowed him to resign. 
Manivannan sued DOE. Some of his claims challenged CSRA-covered 
personnel actions and hence could be brought under only the CSRA (and not 
under § 1331). Id. at 173 (holding employee could challenge DOE’s internal 
investigation only under the CSRA because that investigation constituted a 
CSRA-covered “significant change in working conditions”). But some of his 
claims were not covered by the CSRA and hence could be brought in the 
district court under § 1331. For example, DOE’s “decision to disclose an 
employee’s records to state prosecutors is not an adverse action” under 
Chapter 75 or a “personnel action” under Chapter 23. Ibid. Same with 
DOE’s conversion of Manivannan’s personal property:  
Even construing the CSRA’s language broadly, we fail to see 
how an employer’s alleged conversion of a former employee’s 
personal 
property, 
unrelated 
to 
the 
latter’s 
federal 
employment, constitutes a ‘disciplinary or corrective action,’ 
5 U.S.C. § 2302(a)(2)(A)(iii), a ‘significant change in duties, 
responsibilities, 
or 
working 
conditions,’ 
id. 
§ 2302(a)(2)(A)(xii), or any other employment action set out 
in the statute. 
Id. at 174. 
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In short, the text and structure of the CSRA creates a decades-old, 
well-established, bright-line rule: Federal employees must bring challenges 
to CSRA-covered personnel actions through the CSRA, but they remain free 
to bring other, non-CSRA challenges under the district courts’ general § 1331 
jurisdiction.  
B. 
The CSRA’s purpose reinforces this conclusion. The CSRA was 
enacted “to replace the haphazard arrangements for administrative and 
judicial review of personnel action, part of the ‘outdated patchwork of 
statutes and rules built up over almost a century.’” Fausto, 484 U.S. at 444 
(quoting S. Rep. No. 95-969, at 3 (1978)). The old system created different 
grievance rights for federal employees in different agencies; it entailed 
labyrinthine and uncertain administrative review mechanisms that 
disincentivized managers from taking disciplinary action even when clearly 
warranted. See id. at 444–45 (citing S. Rep. No. 95-969, at 9 (1978)). The 
CSRA “replaced the patchwork system with an integrated scheme of 
administrative and judicial review, designed to balance the legitimate 
interests of the various categories of federal employees with the needs of 
sound and efficient administration.” Id. at 445 (citing S. Rep. No. 95-969, 
at 4 (1978)).  
Thus, the CSRA’s purpose is to streamline and integrate the review 
system for federal employees’ challenges to personnel actions. It does nothing 
to promote that purpose to interpret the CSRA as stripping § 1331 
jurisdiction over disputes beyond CSRA-covered personnel actions. If 
anything, it would disserve the CSRA’s purposes to rewrite it, as the 
Government requests, to strip jurisdiction over every claim any federal 
employee could ever bring. That’s because the MSPB has expertise in the 
byzantine procedures for taking and challenging CSRA-covered personnel 
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actions, but it knows nothing about peephole cameras and wiretaps and 
searches. It would substantially burden the MSPB to task it with such non-
CSRA matters. And more to the point, if Congress wanted to make the CSRA 
process applicable to every claim an employee could ever bring against a 
federal employer, it could’ve said so. That would’ve made the CSRA less 
complicated by obviating all the personnel-action limitations in Chapter 23 
and Chapter 75—a road Congress plainly did not take. See SAS Inst., Inc. v. 
Iancu, 138 S. Ct. 1348, 1357 (2018) (“We need not and will not invent an 
atextual explanation for Congress’s drafting choices when the statute’s own 
terms supply an answer.” (quotation omitted)). 
 
The Government offers two responses. First, the Government claims 
that allowing plaintiffs to bring suits in district court would undermine the 
CSRA’s purpose of creating “an integrated scheme of review.” Gov’t En 
Banc Br. 22. The theory appears to be that federal employees can’t otherwise 
sue in district court, so it would undermine the integration of the MSPB and 
the Federal Circuit to allow this case to get past the CSRA’s roadblocks. This 
contention is quite odd. As the Government well knows, one of the most 
common suits brought by federal employees is the so-called “mixed case.” 
It’s so-called because the employee mixes CSRA-covered claims (for 
example, for CSRA-governed Chapter 75 violations) with non-CSRA claims 
(for example, for sex discrimination under Title VII). See Kloeckner, 568 U.S. 
at 44–48 (describing mixed cases). Both Congress and the Supreme Court 
say that federal employees are free to bring their mixed cases in district court 
without ever dealing with the MSPB or the Federal Circuit in any way. See 5 
U.S.C. § 7703(b)(2); Kloeckner, 568 U.S. at 50 (holding “mixed cases shall 
be filed in district court”); see also Punch v. Bridenstine, 945 F.3d 322, 324–25 
(5th Cir. 2019) (holding “the employee [bringing a mixed case] need not start 
with the MSPB—or take any of the roads running from it”—and instead can 
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file in district court). Thus, it’s simply not true that federal employees face 
an “integrated” grievance system that never includes district court. 
Second, the Government claims that it would create a “gaping 
loophole” if employees could see a CSRA-covered personnel action coming 
down the pike and then race to district court to invoke § 1331 jurisdiction 
before it otherwise disappears. Gov’t En Banc Br. 22. Of course it’s our job 
to interpret the words Congress actually wrote, not to entertain such policy 
arguments for writing the CSRA differently. See, e.g., Domino’s Pizza, Inc. v. 
McDonald, 546 U.S. 470, 479 (2006). And in any event, the Government’s 
policy concerns misunderstand the nature of plaintiffs’ claims. In a case like 
this one, where plaintiffs are not challenging a CSRA-covered personnel 
action, § 1331 jurisdiction would not disappear even if the Government took 
CSRA-covered personnel actions against them. That’s why, for example, 
Manivannan could litigate his non-CSRA claims even after incurring a CSRA-
covered personnel action. See Manivannan, 42 F.4th at 174. So there’s no 
race to the courthouse because the plaintiff can stay in district court before or 
after the CSRA-covered personnel action so long as he’s not challenging that 
CSRA-covered personnel action.  
C. 
 
The text, structure, and purpose of the CSRA all show that it provides 
the exclusive review procedures and employment remedies for CSRA-
covered personnel actions. The dispositive question therefore is whether 
plaintiffs are challenging CSRA-covered personnel actions. If they are, they 
must channel their claims through the CSRA; if they are not, their claims are 
cognizable in the district court. 
 
We hold plaintiffs are not challenging CSRA-covered personnel 
actions. Plaintiffs are challenging (under the Constitution, the APA, and the 
DJA) the President’s executive orders requiring federal employees to make 
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irreversible medical decisions to take COVID-19 vaccines. “Even construing 
the CSRA’s language broadly, we fail to see how an employer’s” medical 
mandate could constitute a covered personnel action. Ibid.  
We (1) begin with Chapter 23. Then we (2) discuss Chapter 75. 
1. 
 
First, the Government fails to prove plaintiffs are challenging a 
“personnel action” under Chapter 23. Neither § 2302(a)(2)(A)(xii) 
(“romanette xii”) nor § 2302(a)(2)(A)(iii) (“romanette iii”) applies to 
plaintiffs’ claims.  
Romanette xii 
Romanette xii is a residual clause that appears at the end of a twelve-
item list. After defining Chapter 23’s “personnel action[s]” to include things 
such as appointments, promotions, and reassignments, Congress concluded 
the list by covering “any other significant change in duties, responsibilities, 
or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). Such residual clauses 
trigger “the maxim ejusdem generis, the statutory canon that where general 
words follow specific words in a statutory enumeration, the general words are 
construed to embrace only objects similar in nature to those objects 
enumerated by the preceding specific words.” Circuit City Stores, Inc. v. 
Adams, 532 U.S. 105, 114–15 (2001) (quotation omitted). All eleven of the 
personnel actions that precede romanette xii are typical, everyday 
employment decisions to, say, promote or reassign a single employee; none 
is an irrevocable decision that extends beyond the term of employment. See 
Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 367 (D.D.C. 2020) 
(“[C]ourts have determined that the term ‘working conditions’ generally 
refers to the daily, concrete parameters of a job, for example, hours, discrete 
assignments, and the provision of necessary equipment and resources.”). 
Accordingly, we must interpret romanette xii to refer to these discrete 
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employment decisions—not government-wide mandates that commandeer 
the personal medical decisions of every federal employee. And we must 
interpret romanette xii to only include conditions that last for the duration of 
the employee’s job tenure—not mandated vaccinations that have 
consequences long after the employee leaves the federal workforce.   
Moreover, it strains romanette xii’s text far beyond its breaking point 
to say it includes permanent medical decisions made outside the workplace. 
“[D]uties, responsibilities, or working conditions” plainly refer to duties, 
responsibilities, or working conditions of the employee’s workplace. 5 U.S.C. 
§ 2302(a)(2)(A)(xii). It doesn’t apply to personal medical choices. That 
result follows a fortiori from Gustafson because if “working conditions” does 
not include peephole cameras in workplace changing rooms, it certainly does 
not include private, irreversible medical decisions made in consultation with 
private medical professionals outside the federal workplace. See 803 F.3d at 
888. 
This interpretation of romanette xii is further reinforced by the 
Supreme Court’s decision in NFIB v. OSHA, 142 S. Ct. 661 (2022) (per 
curiam). There, the Court considered whether OSHA’s COVID-19 vaccine 
mandate could constitute an “occupational safety and health standard[].” Id. 
at 665 (quoting 29 U.S.C. § 655(b)). The Court held no—both because “[w]e 
expect Congress to speak clearly when authorizing an agency to exercise 
powers of vast economic and political significance,” and because workplace-
safety standards refer to “hazards that employees face at work” and not 
“day-to-day dangers that all face from crime, air pollution, or any number of 
communicable diseases.” Ibid. (quotation omitted). Likewise here, Congress 
would need to speak much more clearly than it did in romanette xii if it 
wanted to strip § 1331 jurisdiction over challenges to a mandate that extends 
to every single federal employee’s irreversible medical decisions. Cf. Sistek v. 
Dep’t of Veterans Affs., 955 F.3d 948, 954–56 (Fed. Cir. 2020) (holding 
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Congress’s enumeration of eleven specific personnel actions in the first 
eleven clauses of § 2302(a)(2)(A) precludes interpreting the residual clause 
in romanette xii to include a modest retaliatory investigation of a single 
employee).  
Romanette iii 
Nor does romanette iii help the Government. It defines Chapter 23’s 
“personnel action[s]” to include “disciplinary or corrective action” against 
federal employees. 5 U.S.C. § 2302(a)(2)(A)(iii). But plaintiffs have not 
received any “disciplinary or corrective action,” and hence their claims do 
not challenge such actions. Some plaintiffs received “letters of counseling” 
and “letters of reprimand” for their failures to comply with the executive 
order. ROA.1195–1202, 1204, 1206, 1212, 1216, 1229, 1232, 1242, 1244, 1486, 
1493, 1745. But it’s well settled that such letters are not “disciplinary or 
corrective action[s]” under the CSRA. See, e.g., Sistek, 955 F.3d at 955–57 
(letter of reprimand was not a “personnel action” under the CSRA); Graham 
v. Ashcroft, 358 F.3d 931, 933 (D.C. Cir. 2004) (Roberts, J.) (letter of censure 
was not a “personnel action” under the CSRA).2 Absent any evidence of 
such action, the Government has no basis to suggest plaintiffs’ claims are 
governed by romanette iii. 
And the Government all but concedes the point. In its panel-stage 
brief, the Government obliquely suggests an employee could seek review 
under the CSRA when he receives a letter of reprimand, but it never explains 
 
2 The circuits likewise have held that letters of reprimand and other written 
warnings are not “materially adverse actions” in the analogous Title VII context. See 
Durant v. D.C. Gov’t, 875 F.3d 685, 698 (D.C. Cir. 2017); Baloch v. Kempthorne, 550 F.3d 
1191, 1199 (D.C. Cir. 2008) (Kavanaugh, J.); Medina v. Income Support Div., N.M., 413 F.3d 
1131, 1137 (10th Cir. 2005); Whitaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir. 2005); 
Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002); Krause v. City of La Crosse, 246 F.3d 
995, 1000 (7th Cir. 2001). 
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how or why such review comports with a wall of contrary precedent from 
around the country. Moreover, the Government concedes that receipt of a 
letter is merely “an early stage of [a] still-hypothetical progressive disciplinary 
process.” Blue Br. 24 (emphasis added). That concession all but proves that 
counseling and reprimand letters do not trigger the CSRA’s review 
provisions. And it’s telling that the Government abandons the point 
altogether in its later-filed briefs.3   
2. 
 
Second, the Government fails to prove that Chapter 75 implicitly 
strips the court of jurisdiction. As Judge Barksdale noted in his panel 
dissent, the Government has never argued that plaintiffs have suffered any of 
the Chapter 75 personnel actions. See Feds for Medical Freedom, 30 F.4th at 
513 (Barksdale, J., dissenting). And as Judge Barksdale correctly 
concluded, “[t]he EO’s enactment . . . does not constitute an adverse action 
subject to CSRA. The case at hand is instead a pre-enforcement challenge to 
a government-wide policy, imposed by the President, that would affect the 
2.1 million federal civilian workers, including the 6,000 members of Feds for 
Medical Freedom.” Ibid. 
In its en banc briefs, the Government does not contest Judge 
Barksdale’s premise; it effectively concedes that plaintiffs have not yet 
incurred reviewable Chapter 75 employment actions. Rather, the 
Government (incorrectly) contests Judge Barksdale’s conclusion; it 
contends plaintiffs might one day incur Chapter 75 actions, and that alone 
should implicitly strip the jurisdiction explicitly conferred by § 1331 today.  
 
3 Even if Chapter 23 did govern plaintiffs’ claims, it’s entirely speculative to think 
plaintiffs could ever get them before a federal court. See infra Part IV (discussing the OSC 
process).  
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We disagree. “It is quite clear, that the jurisdiction of the Court 
depends upon the state of things at the time of the action brought, and that 
after vesting, it cannot be ousted by subsequent events.” Mollan v. Torrance, 
22 U.S. (9 Wheat.) 537, 539 (1824); see also Carr v. Alta Verde Indus., Inc., 931 
F.2d 1055, 1061 (5th Cir. 1991) (“As with all questions of subject matter 
jurisdiction except mootness, standing is determined as of the date of the 
filing of the complaint, and subsequent events do not deprive the court of 
jurisdiction.”). And it’s equally clear that we do not make jurisdictional 
determinations based on hypothetical future facts. See, e.g., Clapper v. 
Amnesty Int’l USA, 568 U.S. 398, 409–11 (2013) (rejecting attempt to make 
jurisdictional determinations based on “[a]llegations of possible future 
injury” and “mere speculation” about what the Government will do 
(quotation omitted)). Just as plaintiffs cannot invoke a district court’s 
jurisdiction based on speculation about what the Government will do in the 
future, the Government cannot deny a district court’s jurisdiction based on 
speculation about what its employment supervisors will do in the future.4  
 
4 The contrary rule would have untenable consequences. Consider, for example, 
the amount-in-controversy requirement for diversity jurisdiction under 28 U.S.C. § 1332. 
“Events occurring subsequent to the institution of suit which reduce the amount 
recoverable below the statutory limit do not oust jurisdiction.” St. Paul Mercury Indem. Co. 
v. Red Cab Co., 303 U.S. 283, 289–90 (1938). “[O]nce the district court’s jurisdiction is 
established, subsequent events that reduce the amount in controversy to less than $75,000 
generally do not divest the court of diversity jurisdiction.” Gebbia v. Wal-Mart Stores, Inc., 
233 F.3d 880, 883 (5th Cir. 2000) (citations omitted). “Importantly, the jurisdictional facts 
must be judged as of the time the complaint is filed; subsequent events cannot serve to 
deprive the court of jurisdiction once it has attached.” St. Paul Reinsurance Co., Ltd. v. 
Greenberg, 134 F.3d 1250, 1253–54 (5th Cir. 1998) (citations omitted). Yet on the 
Government’s theory here, a defendant could defeat diversity jurisdiction by saying: “We 
recognize plaintiffs properly pleaded an amount in controversy of $75,001, but we’ll 
produce documents in discovery to show the real amount in controversy is around 
$25,000.” Such future-hypothetical-fact arguments have never been allowed to defeat (or 
create) subject matter jurisdiction.  
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Plaintiffs’ complaint does not challenge any personnel action 
reviewable under the CSRA. Nor does it challenge any personnel action they 
could hypothetically incur in the future. Rather, plaintiffs claim that the 
President’s vaccine mandate violates the U.S. Constitution and the APA. See 
Manivannan, 42 F.4th at 172 (“[W]hen assessing whether the CSRA bars 
federal jurisdiction over an otherwise reviewable claim, courts should look to 
the specific underlying conduct being challenged to determine whether that 
conduct is an employment action covered by the statute.” (emphasis 
added)).5 The Government does not dispute that plaintiffs’ claims are ripe 
and otherwise cognizable under § 1331. And we can find nothing in the 
CSRA’s text, structure, or purpose that implicitly displaces that jurisdiction 
for a claim outside the CSRA’s coverage. We therefore hold that the district 
court properly exercised its jurisdiction over plaintiffs’ claims. 
III. 
Our reading of the CSRA’s text, structure, and purpose is confirmed 
by precedent. A long line of cases establishes that federal employees can bring 
facial, pre-enforcement actions against federal policies outside of the CSRA.  
For example, in NFFE v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987), 
civilian federal employees sued to enjoin a directive establishing a “Drug 
Abuse Testing Program.” Id. at 937. The government argued that the CSRA 
precluded pre-enforcement review in federal court. Rejecting this argument, 
the court noted that its decisions “have made it absolutely clear that civilian 
 
5 Judge Higginson points out that some members of Feds for Medical 
Freedom may have incurred adverse personnel actions. See post, at 66–67 & n.8 (Higginson, 
J., dissenting). That would matter only if such actions could displace § 1331 jurisdiction 
that otherwise attaches to claims that do not implicate the CSRA. See supra, at 12 (rejecting 
this contention); accord Manivannan, 42 F.4th at 174.  
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federal employees may seek to enjoin government actions that violate their 
constitutional rights.” Id. at 940 (citation omitted).  
NTEU v. Devine, 733 F.2d 114 (D.C. Cir. 1984), similarly rejected the 
government’s argument that the CSRA precludes jurisdiction over pre-
enforcement challenges. The court held:  
This claim is meritless. It is one thing to say that when a statute 
provides a detailed scheme of administrative protection for 
defined employment rights, less significant employment rights 
of the same sort are implicitly excluded and cannot form the 
basis for relief directly through the courts. It is quite different 
to suggest, as appellant does, that a detailed scheme of 
administrative 
adjudication 
impliedly 
precludes 
preenforcement judicial review of rules. 
Id. at 117 n.8 (citations omitted).  
 
The Supreme Court has also, on multiple occasions, entertained pre-
enforcement challenges to laws or directives affecting federal employees 
without a word about CSRA preclusion. See, e.g., NTEU v. Von Raab, 489 
U.S. 656 (1989) (pre-enforcement challenge to drug-testing program for 
federal employees); United States v. NTEU, 513 U.S. 454 (1995) (pre-
enforcement challenge to a law prohibiting federal employees from accepting 
honoraria). 
We have done the same. For example, in AFGE v. FLRA, 794 F.2d 
1013 (5th Cir. 1986), we cited Devine for the proposition that a union of 
federal employees would be able to bring a pre-enforcement challenge to 
OPM regulations in district court. See id. at 1015–16. Similarly, in NTEU v. 
Bush, 891 F.2d 99 (5th Cir. 1989), we addressed the merits of a pre-
enforcement suit challenging an executive order mandating drug testing for 
federal employees. See id. at 100. We didn’t mention CSRA preclusion, even 
though the claims in the suit centered on the CSRA. See ibid. 
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The Government has two responses. First, it points out that these 
cases predate Elgin, which according to the Government, abrogated them. 
But as we recently held in Cochran v. SEC, 20 F.4th 194 (5th Cir. 2021) (en 
banc), cert. granted, 142 S. Ct. 2707 (2022), Elgin did not “break new ground” 
regarding implicit preclusion. Id. at 206. Nor did Elgin address pre-
enforcement challenges at all. And the Government’s position entails that 
Elgin held sub silentio that the Court lacked jurisdiction in all its past cases 
entertaining pre-enforcement challenges to federal employment policies—
including Von Raab and United States v. NTEU. So Elgin can’t support the 
weight the Government puts on it.  
 
The Government’s other response is to claim that most of these 
decisions involve “drive-by jurisdictional rulings” on the scope of CSRA 
preclusion. Gray Br. 6 (quoting Steel Co. v. Citizens for a Better Env’t, 523 
U.S. 83, 91 (1998)). That’s certainly not true of Weinberger and Devine. In 
those cases, the D.C. Circuit carefully considered and emphatically rejected 
the Government’s theory of CSRA preclusion as “discredited” and 
“meritless.” Weinberger, 818 F.2d at 939–42; Devine, 733 F.2d at 117 n.8. So 
it’s no surprise that litigants and courts gave it less-thorough consideration 
in later cases. 
IV. 
Because the CSRA’s text, structure, and purpose foreclose the 
Government’s implicit-jurisdiction-stripping theory, we need not proceed to 
an analysis of the factors listed in Thunder Basin Coal Co. v. Reich, 510 U.S. 
200 (1994). See Elgin, 567 U.S. at 10; Cochran, 20 F.4th at 204. But even if 
we reach them, those factors only confirm that the CSRA left intact the 
district court’s jurisdiction over this suit.  
The first Thunder Basin factor is whether “a finding of preclusion 
could foreclose all meaningful judicial review.” 510 U.S. at 212–13. The 
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Government contends that plaintiffs have two avenues for meaningful 
judicial review: Chapter 23 and the All Writs Act, 28 U.S.C. § 1651. 
Chapter 23 provides no guarantee of judicial review—much less a 
meaningful one. With exceptions not relevant here,6 claims covered by 
Chapter 23 are vindicable only by OSC. And here’s how the OSC process 
works: The employee first files a complaint with the OSC. See 5 U.S.C. 
§ 1214(a)(1)(A). If the OSC finds “reasonable grounds” of a “prohibited 
personnel practice,” the OSC must report it to the employing agency, 
MSPB, and OPM. Id. § 1214(b)(2)(B). If the agency doesn’t fix the problem, 
the OSC “may petition” to the MSPB. Id. § 1214(b)(2)(C) (emphasis added). 
And only a final order from the MSPB is reviewable before the Federal 
Circuit. See id. § 1214(c). This process gives the OSC total and unfettered 
discretion to decide whether to bring the claims before the MSPB. See 
Krafsur v. Davenport, 736 F.3d 1032, 1034 (6th Cir. 2013) (“[I]f the Special 
Counsel . . . declines to refer the case to the Board, the employee is out of 
luck. A court may not review the Special Counsel’s decisions unless the 
Counsel has declined to investigate a complaint at all.” (quotation omitted)). 
Its decisions not to pursue claims are unreviewable. Cf. Heckler v. Chaney, 
470 U.S. 821, 837 (1985) (prosecutorial discretion not reviewable).  
This is not particularly surprising, given that Chapter 23 is the bottom 
of the CSRA’s pyramid and warrants the fewest procedural protections for 
federal employees. See Carducci, 714 F.2d at 175. But the narrowness of 
Chapter 23’s review provisions—and the fact that any review at all turns on 
 
6 For example, Congress created an “individual right of action” in certain reprisal 
cases under § 2302(b)(8) and § 2302(b)(9)(A)(i), (B), (C), and (D) that allows some 
employees to sue without OSC’s involvement. See 5 U.S.C. §§ 1221, 1214(a)(3); Orr v. 
Dep’t of Treasury, 83 M.S.P.R. 117 (1999). But the Government doesn’t argue that this 
exception, or any other, applies. 
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the unreviewable discretion of Government officials—puts the lie to the 
Government’s two-sentence suggestion that the OSC or MSPB could or 
would give the plaintiffs relief against a nationwide vaccine mandate. See 
Gov’t En Banc Br. 26 (so suggesting).  
As for the Government’s invocation of the All Writs Act, it proves 
both too much and too little. It’s too much because the Government cannot 
explain how the CSRA implicitly strips § 1331 jurisdiction but somehow does 
not strip § 1651 jurisdiction. And all of the Government’s policy arguments 
about the former—that it undermines the CSRA’s “integrated” review, 
creates a “loophole,” &c.—apply equally to the latter. But the 
Government’s reliance on the All Writs Act also proves too little because as 
the Government itself concedes, mandamus relief is a “drastic and 
extraordinary” remedy “reserved for really extraordinary causes.” Cheney v. 
U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (quotation omitted). So it’s 
hard to see how it provides “meaningful review.” Moreover, as then-Judge 
Roberts noted for the D.C. Circuit, employees with CSRA-covered claims 
cannot avail themselves of the All Writs Act. See Fornaro v. James, 416 F.3d 
63, 69–70 (D.C. Cir. 2005). So the only way the All Writs Act could apply, 
on the Government’s own logic, is to hold that the plaintiffs’ claims are 
outside the CSRA, thus obviating the need for the All Writs Act in the first 
place. In all events, the All Writs Act does not provide “meaningful review” 
here.  
 
The second Thunder Basin factor is whether plaintiffs’ claims are 
“wholly collateral” to the CSRA’s review provisions. 510 U.S. at 212 
(quotation omitted). “[W]hether a claim is collateral to the relevant 
statutory-review scheme depends on whether that scheme is intended to 
provide the sort of relief sought by the plaintiff.” Cochran, 20 F.4th at 207.  
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This factor again cuts against stripping the district court of 
jurisdiction. As detailed in Part II.A, the CSRA scheme is a highly reticulated 
web of statutes and regulations spanning multiple federal agencies (including 
the employee’s own, the OSC, the OPM, the EEOC, and the MSPB) with 
overlapping procedural requirements and complicated substantive rules. See, 
e.g., Butler v. West, 164 F.3d 634, 637 (D.C. Cir. 1999) (describing it as a 
“complicated tapestry”). We’ve described the CSRA as a winding road 
which cannot be driven by “the easily carsick.” Punch, 945 F.3d at 324. The 
important point for present purposes, however, is that individual federal 
employees are forced to navigate it to air their individual grievances regarding 
individual personnel actions. The standard fare for the MSPB’s docket 
includes employee misconduct, hostile work environments, whistleblowing, 
and the like. No part of it includes reviewing an executive order for 
compliance with the APA or ordering injunctive relief that affects thousands 
or millions of employees. No part of its byzantine procedures is suited for (or 
even appears to allow) an emergency preliminary injunction. And the 
Government does not cite a single case, nor have we found one, where OSC 
agreed in its unreviewable discretion to petition the MSPB for relief that 
remotely resembles what plaintiffs request here.  
The Government nevertheless contends plaintiffs’ claims are not 
wholly collateral to the CSRA because what plaintiffs really want is to “avoid 
adverse employment action,” namely their terminations. Gov’t En Banc Br. 
17, 21–22. This is an untenable recharacterization of plaintiffs’ suit, which 
prayed to have a federal court “[h]old unlawful and set aside the Federal 
Employee Mandate” and did not make specific employment-related claims. 
ROA.138 (complaint). Declaring unlawful an executive order that requires 
millions of people to undergo a medical procedure is hardly “relief that the 
CSRA routinely affords.” Elgin, 567 U.S. at 22. 
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The third Thunder Basin factor is whether the claims at issue are 
“outside the agency’s expertise.” 510 U.S. at 212. As in Cochran, this case 
involves constitutional issues and “standard questions of administrative law, 
which the courts are at no disadvantage in answering.” 20 F.4th at 207–08 
(quotation omitted). By contrast, MSPB’s expertise lies in “ensur[ing] that 
Federal employees are protected against abuses by agency management, that 
Executive branch agencies make employment decisions in accordance with 
the merit system principles, and that Federal merit systems are kept free of 
prohibited personnel practices.” Merit Systems Protection 
Board, 
An 
Introduction 
to 
the 
Merit 
Systems 
Protection Board 5 (1999).  
The Government doesn’t argue that plaintiffs’ claims fall under the 
MSPB’s expertise. Rather, the Government argues that “the MSPB’s 
resolution of preliminary questions unique to the employment context could 
obviate the need to address” plaintiffs’ claims. Gov’t En Banc Br. 17 
(quotation omitted) (emphasis added). The Government provides no further 
support for this claim, however, and we therefore hold that it’s forfeited. 
Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 
892 F.3d 719, 732 (5th Cir. 2018). 
V. 
 
Judge Higginson’s dissent warrants a few additional words. He 
agrees that we have jurisdiction over plaintiffs’ constitutional claims. Thus, 
thirteen of the seventeen members of our en banc court agree that the CSRA 
does not implicitly strip the jurisdiction that § 1331 explicitly confers on the 
district court to hear plaintiffs’ constitutional claims. And eleven members 
agree that the CSRA does not implicitly strip jurisdiction over any of 
plaintiffs’ claims, constitutional and non-constitutional alike. But he 
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disagrees with how we reach that conclusion. We write to address these areas 
of disagreement.  
A. 
As an initial matter, Judge Higginson’s disagreement with the 
majority opinion is perplexing. On the one hand, the dissenting opinion says 
“the CSRA does not provide meaningful judicial review of the plaintiffs’ pre-
enforcement challenge and [therefore] Congress did not intend the CSRA to 
foreclose judicial review of their separation-of-powers claim” against the 
vaccine requirement, post, at 50 (Higginson, J., dissenting) (emphasis added), 
and “nothing in the CSRA shows that Congress meant to preclude federal 
jurisdiction to adjudicate separation-of-powers challenges to employment 
policies set by the President,” id. at 76 (emphasis added). On the other hand, 
the dissenting opinion says, “Congress’s intent to preclude judicial review 
over challenges to the [vaccine] requirement is fairly discernible within the 
statutory scheme,” id. at 63, “Congress’s intent to preclude jurisdiction over 
pre-enforcement challenges is fairly discernible in the statute,” id. at 64, and 
“the only conclusion consistent with the text of the [CSRA] and binding 
Supreme Court authority is that Congress’s intent to preclude pre-
enforcement challenges is fairly discernible in the CSRA,” id. at 69. It’s 
difficult to reconcile these two positions.  
 
The dissent tries to square that circle by arguing that plaintiffs’ 
separation-of-powers challenges raise unique constitutional concerns and 
thereby preclude Congress from implicitly stripping § 1331 jurisdiction in this 
case. See, e.g., id. at 75–76 & n.16. But it’s unclear where the dissenting 
opinion would root its concerns in the Constitution or Supreme Court 
precedent. True, the Supreme Court has said the Constitution requires a 
federal forum for certain habeas claims, see Boumediene v. Bush, 553 U.S. 723, 
795 (2008), and takings claims, see First Eng. Evangelical Lutheran Church of 
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Glendale v. Los Angeles Cnty., Cal., 482 U.S. 304, 315–19 (1987); Richard 
H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & 
David L. Shapiro, Hart & Wechsler’s The Federal Courts 
and the Federal System 330 (7th ed. 2015) [Hart & Wechsler]. 
But it’s well established that Congress need not provide a federal forum for 
constitutional claims more generally. To the contrary, the first Congress did 
not create general federal question jurisdiction in the Judiciary Act of 1789, 
so all manner of constitutional claims were denied a federal forum at the 
Founding without offending any constitutional principle. See Hart & 
Wechsler, supra, at 25–26; Daniel J. Meltzer, The History and Structure of 
Article III, 138 U. Pa. L. Rev. 1569, 1585–93 (1990).7  
Even if the dissenting opinion could identify a constitutional problem 
to be avoided, it then must identify an alternative interpretation of the 
statutory text that avoids it. See Nielsen v. Preap, 139 S. Ct. 954, 972 (2019) 
(“The trouble with this argument is that constitutional avoidance comes into 
play only when, after the application of ordinary textual analysis, the statute 
is found to be susceptible of more than one construction. The canon has no 
application absent ambiguity.” (quotation omitted)); Zadvydas v. Davis, 533 
U.S. 678, 696 (2001) (“Despite this constitutional problem, if Congress has 
made its intent in the statute clear, we must give effect to that intent.” 
 
7 If the dissenting opinion intends to ally itself with an Amarian conception of 
Article III, § 2, clause 1—namely, that Congress somehow must provide a federal forum 
for all cases arising under federal law, see Akhil R. Amar, A Neo-Federalist View of Article III: 
Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205 (1985)—then it 
proves too much. That’s because Article III, § 2, clause 1 says the judicial power extends 
to “all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United 
States . . . .” (emphasis added). The Amarian view of Article III would require Congress to 
provide a federal forum for plaintiffs’ statutory APA claims, which the dissenting opinion 
expressly rejects. See post, at 70 n.12 (Higginson, J., dissenting) (arguing Congress can strip 
all jurisdiction over plaintiffs’ claims arising under the APA). 
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(quotation omitted)). But the dissent raises no such plausible alternative 
reading. It simply says there’s a constitutional problem of unknown 
constitutional provenance, so plaintiffs must win to avoid it. That’s a quite-
odd form of constitutional avoidance. 
B. 
 
Second, the dissent argues that the CSRA implicitly strips § 1331 
jurisdiction over CSRA-covered personnel actions. See, e.g., post, at 54 
(Higginson, J., dissenting). We agree. Elgin, Fausto, this majority opinion, 
and the dissent all agree (quite clearly) that where the CSRA applies, it 
implicitly strips the district court’s § 1331 jurisdiction. The question of 
course is whether the CSRA applies.  
And on that question, the dissent appears to say that the CSRA applies 
to both personnel actions and pre-enforcement personnel actions. But this 
proposition belies confusion over (1) what plaintiffs are challenging and 
(2) what sort of jurisdiction the CSRA strips. Plaintiffs are challenging the 
President’s vaccine mandate—not any personnel action that may or may not 
be taken in conjunction with that mandate. And the CSRA’s implicit effects 
on jurisdiction depend on the claims plaintiffs choose to bring. That’s why 
the CSRA can apply when a plaintiff challenges his demotion or termination 
under Chapter 75 and not apply when the employee’s boss installs a hidden 
camera in a workplace changing room. See supra, at 8. Thus, if the employee 
is subject to surveillance and then gets fired, she has a multitude of claims. 
She might, for example, challenge her termination—which would be subject 
to the CSRA/MSPB process. But if the employee seeks damages for the 
invasion of privacy itself, which is an obvious injury separate and apart from 
the employment action, that challenge does nothing to trigger the CSRA or 
to implicitly strip § 1331 jurisdiction. See Gustafson, 803 F.3d at 888; Bush, 
462 U.S. at 385 n.28. 
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So it might be true, as the dissenting opinion sometimes suggests, that 
the CSRA would implicitly strip jurisdiction over an employee’s pre-
termination suit to enjoin her termination (i.e., “pre-enforcement challenge 
to a covered personnel action”). We take no position on that because it’s 
irrelevant here. All that matters here is that plaintiffs have identified an illegal 
vaccine mandate and, separate and apart from any personnel action the 
President might one day take to enforce that illegal order, the plaintiffs want 
judicial review of it. The CSRA does nothing to implicitly strip jurisdiction 
over these claims because the vaccine mandate itself is not a personnel 
action—even if a future employer at some future time might take some future 
action to impose some future personnel action on a future plaintiff who might 
violate the mandate in the future.  
C. 
The dissenting opinion next says the vaccine mandate itself is a 
“working condition” of federal employment. That’s so, the dissent says, 
because romanette xii’s reference to “working conditions” is so capacious 
that it includes—and hence channels into the MSPB—any significant change 
to any “circumstances under which an employee performs his or her job.” 
Post, at 57 (Higginson, J., dissenting). Under the dissenting opinion’s theory, 
it’s unclear there are any limits at all on what the President could call a change 
in “working conditions.” But we know there are limits because the Supreme 
Court has said that warrantless searches and wiretaps are so far afield from 
the CSRA’s list of personnel actions that they remain actionable in district 
court. See Bush, 462 U.S. at 385 n.28; see also Collins, 195 F.3d at 1080. And 
our sister circuits have said the same thing about peephole cameras and 
assaults. See Gustafson, 803 F.3d at 888; Brock, 64 F.3d at 1425; Orsay, 289 
F.3d at 1131. 
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The dissenting opinion hazards no argument that an employee’s 
irrevocable medical decision like the one at issue here is somehow the 
employer’s prerogative in ways that wiretaps, peephole cameras, and assaults 
are not. Rather, the dissenting opinion contends that Congress contravened 
Bush v. Lucas (and Gustafson, Brock, Orsay, and Collins by extension) when it 
added romanettes x through xii to the CSRA. See post, at 59–61 & n.5 
(Higginson, J., dissenting). Those romanettes bring under the CSRA “a 
decision to order psychiatric testing or examination,” “the implementation 
or enforcement of any nondisclosure policy, form, or agreement,” and “any 
other significant change in duties, responsibilities, or working conditions.” 5 
U.S.C. § 2302(a)(2)(A)(x)–(xii). They say nothing about wiretaps, peephole 
cameras, workplace assaults, or for that matter irrevocable medical decisions. 
We cannot infer that Congress’s decision to cover nondisclosure agreements 
under the CSRA brings with it an implied congressional decision to cover 
elephantine medical decisions in romanette xii’s ambiguous catchall phrase. 
To conclude otherwise, “we would have to conclude that Congress not only 
had hidden a rather large elephant in a rather obscure mousehole, but had 
buried the ambiguity in which the pachyderm lurks beneath an incredibly 
deep mound of specificity, none of which bears the footprints of the beast or 
any indication that Congress even suspected its presence.” ABA v. FTC, 430 
F.3d 457, 469 (D.C. Cir. 2005) (Sentelle, J.). 
Nor would it matter if the President ordered employees to make their 
irrevocable medical decisions “at work.” Post, at 62 (Higginson, J., 
dissenting). The vaccine mandate still would not be covered by the CSRA in 
any event. After all, the peephole camera in Gustafson was in the workplace. 
See 803 F.3d at 886–87. So too with the hypothesized wiretaps in Bush. See 
462 U.S. at 385 n.28. So too with the assaults in Brock. See 64 F.3d at 1425. 
The reason these illegalities were actionable outside of the CSRA had 
nothing to do with the location or timing of the employer’s actions. They 
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were actionable outside of the CSRA because the definition of “personnel 
action” cannot reasonably be read to include peephole cameras, assaults, or 
illegal wiretaps. The same is true of irrevocable medical decisions. The fact 
that the President ordered employees to make medical decisions outside of 
the workplace—and to live with those irrevocable decisions even after they 
leave the federal workforce—bolsters plaintiffs’ argument that the mandate 
is not a “working condition.” But it’s not necessary. 
D. 
The dissenting opinion next contends that its reading of the CSRA is 
compelled by “the logic of Fausto.” Post, at 64 (Higginson, J., dissenting). 
Again, we respectfully disagree.  
Fausto involved the removal of a federal employee—unquestionably a 
“personnel 
action” 
covered 
by 
the 
CSRA. 
See 
5 
U.S.C. 
§§ 2302(a)(2)(A)(iii), 7512(1) (covering “a removal”).  While the CSRA 
covered the employer’s personnel action, it did not cover Fausto himself 
because he served in the “excepted service.” Fausto, 484 U.S. at 441 & n.1. 
Because Congress carved Fausto out of the CSRA’s coverage, he sought 
remedies under a different federal statute called the Back Pay Act, 5 U.S.C. 
§ 5596. The question presented was whether Congress’s decision not to 
cover Fausto under the CSRA impliedly preempted his ability to seek more 
generous remedies under the Back Pay Act. The Court held yes because to 
hold otherwise “would have given him greater rights than were available 
under the CSRA to employees who enjoyed rights under that statute—
primarily those in the competitive service.” Graham, 358 F.3d at 934.  
Likewise in Graham, the D.C. Circuit held that an employee covered 
by the CSRA must use that process—and only that process—to challenge his 
employer’s personnel actions. See ibid. And it did not matter that the 
particular personnel action at issue in Graham (the issuance of a censure 
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letter) was not one of the listed personnel actions covered by the CSRA. As 
then-Judge Roberts wrote: “in granting review with respect to some 
personnel actions under the CSRA, Congress meant to preclude review of 
others.” Ibid. 
These cases teach that the CSRA establishes a comprehensive 
framework for (1) federal employees challenging (2) personnel actions. 
Under both Fausto and Graham, an employee cannot avoid the CSRA’s 
implicit stripping of § 1331 jurisdiction by saying “Congress’s decision to 
limit (1) covered employees and (2) covered personnel actions” should be 
read to allow (1) uncovered employees to avoid the CSRA or (2) judicial 
review of uncovered personnel actions. 
But neither decision strips § 1331 jurisdiction over claims that do not 
challenge personnel actions. That’s why, again, the Supreme Court said that 
federal employees can bring claims unrelated to personnel actions outside of 
the CSRA. See Bush, 462 U.S. at 385 n.28. Congress certainly could pass a 
statute that says, “federal employers are suable under the CSRA and only 
under the CSRA.” But that’s not what Congress said. Congress said 
personnel-action claims must go through the CSRA process—thus leaving 
undisturbed whatever § 1331 jurisdiction might otherwise attach to claims 
unrelated to personnel actions, like wiretaps, peephole cameras, and 
irrevocable medical decisions.  
E. 
 
The dissenting opinion is also incorrect to contend “this case is 
justiciable because it involves challenges to CSRA-covered personnel 
actions.” Post, at 67 (Higginson, J., dissenting). The dissent’s theory appears 
to be that plaintiffs only have standing because the Government threatens to 
take CSRA-covered personnel actions against noncompliant employees. See 
ibid.  
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We respectfully disagree because the plaintiffs alleged an injury 
distinct from any personnel action. The mandated medical decision alone is 
an injury. When a “regulation is directed at [plaintiffs] in particular” and 
“requires them to make significant changes,” plaintiffs have suffered an 
injury to challenge the order even if the Government has yet to elucidate the 
precise consequences of failing to comply. Abbott Lab’ys v. Gardner, 387 U.S. 
136, 154 (1967); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 561–62 (1992). 
Plaintiffs do not have to identify exactly how the Government will enforce 
the mandate; it’s enough that plaintiffs face the ominous order, “get 
vaccinated or else.” See Abbott Lab’ys, 387 U.S. at 151 (holding that plaintiffs 
subject to a regulation had standing to challenge it even though the Attorney 
General had yet to “authorize criminal and seizure actions for violations of 
the statute”). 
 
Moreover, plaintiffs did not seek or receive relief against any 
personnel action. Plaintiffs only sought an injunction against the executive 
order. The executive order nowhere references any threatened or actual 
personnel action. See Exec. Order 14043. And the district court’s 
injunction nowhere restricts the Government from bringing personnel 
actions against plaintiffs. Rather, it prevents the Government from 
“implementing or enforcing Executive Order 14043 until this case is resolved 
on the merits.” ROA.1770. The Government is thus prohibited from 
ordering plaintiffs to get vaccinated—but the Government is not prohibited 
from taking personnel actions against them. 
 
True, when a plaintiff seeks pre-enforcement review of a government 
mandate, ripeness is always a concern. See, e.g., Abbott Lab’ys, 387 U.S. at 
148. But in this case, it’s not difficult “to evaluate both the fitness of the 
issues for judicial decision and the hardship to the parties of withholding 
court consideration.” Id. at 149. The issue for judicial decision is the purely 
legal one of whether the President can lawfully enact this order. See ibid. 
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(holding “the issues presented are appropriate for judicial resolution at this 
time” because “all parties agree that the issue tendered is a purely legal 
one”). And the hardships to the plaintiffs of withholding a decision are plain: 
they’ll be forced to undergo irrevocable medical procedures and comply with 
a potentially unlawful order or face unknown consequences that “may be 
even more costly.” See id. at 153; id. at 152 (finding hardship and hence 
ripeness where “[t]he regulations are clear-cut, and were made effective 
immediately upon publication; [and the Government’s lawyers made clear] 
that immediate compliance with their terms was expected”). The mandate 
thus plainly affects plaintiffs’ “primary conduct” and hence is ripe for review 
irrespective of any personnel actions the Government has taken or might 
eventually take. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 810 
(2003).  
F. 
 
Finally, the dissenting opinion claims that “[t]his circuit’s door is now 
open to all pre-enforcement challenges to federal employment policies. 
Plaintiffs are welcome to challenge any personnel action before it takes 
place.” Post, at 67–68 (Higginson, J., dissenting) (footnote omitted). “But 
this is one of those instances in which the dissent clearly tells us what the law 
is not.” Waste Mgmt. of La., L.L.C. v. River Birch, Inc., 920 F.3d 958, 978 (5th 
Cir. 2019) (Oldham, J., dissenting) (quotation omitted). 
 
Plaintiffs in this circuit, as in every circuit of which we’re aware, are 
not free to challenge federal personnel actions under § 1331. Instead, 
challenges to federal personnel actions must be channeled through the CSRA 
process. True, § 1331 jurisdiction remains undisturbed for claims that do not 
challenge federal personnel actions. But even then, the eye of the federal 
employee’s needle is narrow. The plaintiff still must demonstrate an injury 
in fact under well-established standing principles. And if the employee seeks 
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pre-enforcement review of a federal mandate, he must satisfy well-
established ripeness rules.8 And even if the plaintiff can thread that needle, 
again, he cannot “challenge any personnel action before it takes place.” Post, 
at 68 (Higginson, J., dissenting). He can only challenge the Government’s 
illegal actions that do not constitute a personnel action. 
 
Ours is hardly the first court to recognize that this needle, while 
narrow, can be threaded. The plaintiffs in Gustafson, Brock, Orsay, and Collins 
all managed to do it. The sky did not fall, and the doors of the inferior federal 
courts were not blown open to claims that otherwise belonged in the 
CSRA/MSPB process. Therefore in our view, the dissenting opinion’s 
rhetoric is misplaced. 
VI. 
As noted, the panel limited its decision to jurisdiction. See Feds for 
Medical Freedom, 30 F.4th at 511. Finding that we have jurisdiction, we review 
the district court’s decision regarding the other factors necessary for a 
preliminary injunction for abuse of discretion. See NetChoice, L.L.C. v. 
Paxton, 49 F.4th 439, 447 (5th Cir. 2022). “A preliminary injunction is an 
extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. 
Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary 
injunction must establish that he is likely to succeed on the merits, that he is 
likely to suffer irreparable harm in the absence of preliminary relief, that the 
balance of equities tips in his favor, and that an injunction is in the public 
interest.” Id. at 20. The district court carefully considered these factors and 
wrote a thorough opinion explaining its decision to grant preliminary relief. 
After carefully considering the district court’s opinion and the 
 
8 For example, the district judge in this case rejected a previous challenge to this 
same mandate as unripe. See Rodden v. Fauci, 571 F. Supp. 3d 686, 689 (S.D. Tex. 2021). 
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Government’s criticisms of it, we are unpersuaded that the district court 
abused its discretion. And we need not repeat the district court’s reasoning, 
with which we substantially agree. 
The one issue that warrants additional discussion is the scope of 
injunctive relief. The Supreme Court has recently stayed nationwide 
injunctions. See, e.g., DHS v. New York, 140 S. Ct. 599 (2020) (mem.). But 
the Court has yet to tell us they’re verboten. Some Justices have expressed 
concerns that such injunctions can contravene equitable principles because 
“[e]quitable remedies, like remedies in general, are meant to redress the 
injuries sustained by a particular plaintiff in a particular lawsuit.” New York, 
140 S. Ct. at 600 (Gorsuch, J., concurring); see also Trump v. Hawaii, 138 S. 
Ct. 2392, 2426 (2018) (Thomas, J., concurring) (“Universal injunctions do 
not seem to comply with those [equitable] principles.”). For example, the 
English system of equity did not authorize injunctions against the King. See 
Trump, 138 S. Ct. at 2427 (Thomas, J., concurring). And “as a general rule, 
American courts of equity did not provide relief beyond the parties to the 
case.” Ibid. As with all general rules, of course, this one was subject to 
exceptions—the most important of which was that an injunction could benefit 
non-parties as long as “that benefit was merely incidental.” Ibid.  
It appears that the district court did its best to follow these equitable 
principles in this case. The court carefully carved the President out of its 
injunction, which is an obviously imperfect analogue to the English king but 
an equally obvious good-faith recognition of the rule. It also recognized that, 
unlike the plaintiffs in both New York and Hawaii, the lead plaintiff in this 
case has over 6,000 members spread across every State in the Nation and 
nearly every federal agency in the entire Government. ROA.1770. And 
plaintiffs cited multiple instances in the aftermath of Executive Order 14043 
where the Government wrongfully targeted unvaccinated federal employees 
who sought exemptions—despite assurances from the Government that it 
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would not do so. ROA.1454, 1464, 1600, 1625, 1645. The court therefore 
expressed its “fears that limiting the relief to only those before it would prove 
unwieldy and would only cause more confusion.” ROA.1770. On this record 
and absent binding precedent from the Supreme Court, we cannot say that 
the district court abused its discretion in rejecting the Government’s 
assurances that it could and would comply with an injunction limited to the 
plaintiffs’ members.  
The Government’s position on the scope of the injunction also sits 
awkwardly with its position on the merits. On the merits, the Government 
wants “consistency across government in enforcement of this government-
wide vaccine policy.” ROA.810. But on the scope of the injunction, the 
Government wants piecemeal enforcement, where thousands of plaintiffs’ 
members across the Nation are subject to the district court’s injunction, 
others are given exemptions from vaccination, and only the remainder are 
subject to the President’s mandate. That undermines rather than supports 
the Government’s purported interest in “consistency across government in 
enforcement of this government-wide vaccine policy.” ROA.810. 
Finally, a word about concerns expressed by Judge Haynes and 
Judge Stewart regarding a purported conflict between this injunction 
and the decisions of other courts across the country. They worry that the 
district court’s injunction awards relief to parties who have already lost their 
claims elsewhere. But our esteemed colleagues reference no cases where 
plaintiffs have lost their claims on the merits. They first cite Rydie v. Biden, 
No. 21-2359, 2022 WL 1153249 (4th Cir. Apr. 19, 2022) (unpublished). 
There, our sister circuit vacated a district court judgment denying a 
preliminary injunction of Executive Order 14043 but only because the court 
concluded that the CSRA stripped the district court of jurisdiction. See id. at 
*1. The panel dismissed the case under Fed. R. Civ. P. 12(b)(1) without 
prejudice and without reaching the merits. See id. at *8 (“We therefore 
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vacate the district court’s judgment and remand the case with instructions 
that it be dismissed without prejudice for lack of subject-matter 
jurisdiction.”). The D.C. Circuit took the same route in Payne v. Biden, --- 
F.4th ----, 2023 WL 2576742 (D.C. Cir. 2023). See id. at *7 (dismissing for 
lack of subject matter jurisdiction without reaching the merits). In all the 
other cases Judge Stewart cites, the districts courts dismissed the claims 
without prejudice on the grounds that the CSRA stripped jurisdiction. See 
Am. Fed’n of Gov’t Emps. Loc. 2018 v. Biden, 598 F. Supp. 3d 241, 248–49 
(E.D. Pa. 2022); Payne v. Biden, 602 F. Supp. 3d 147, 151 (D.D.C. 2022); Am. 
Fed’n of Gov’t Emps. Loc. 2586 v. Biden, No. CIV-21-1130-SLP, 2022 WL 
3695297, at *6 (W.D. Okla. July 22, 2022). The overwhelming majority of 
district courts that have dismissed these challenges have also done so for lack 
of jurisdiction under Fed. R. Civ. P. 12(b)(1). See, e.g., Calderwood v. 
United States, No. 2:21-CV-702-CLM, 2022 WL 4353382 (N.D. Ala. Aug. 
25, 2022); Church v. Biden, No. 21-2815 (CKK), 2022 WL 1491100 (D.D.C. 
May 11, 2022); Am. Fed’n of Gov’t Emps. Loc. 501 v. Biden, 576 F. Supp. 3d 
1155 (S.D. Fla. 2021); McCray v. Biden, 574 F. Supp. 3d 1 (D.D.C. 2021); 
Brass v. Biden, No. 21-CV-02778-CNS-MEH, 2022 WL 11732833 (D. Colo. 
Oct. 20, 2022). Thirteen members of this court, including Judge Haynes, 
agree that we have jurisdiction and must reach the merits of the preliminary 
injunction. Accordingly, any perceived conflict is misconstrued, and any 
benefit to outside parties is “merely incidental.” See Trump, 138 S. Ct. at 
2427 (Thomas, J., concurring). 
We hasten to emphasize that this case only involves a preliminary 
injunction. The preliminary injunction’s purpose is to maintain the status 
quo until the parties have the chance to adjudicate the merits. See Benisek v. 
Lamone, 138 S. Ct. 1942, 1945 (2018) (“[T]he purpose of a preliminary 
injunction is merely to preserve the relative positions of the parties until a 
trial on the merits can be held . . . .” (quotation omitted)); Texas v. United 
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States, 809 F.3d 134, 187 n.205 (5th Cir. 2015), affirmed by an equally divided 
Court, 579 U.S. 547 (2016) (per curiam) (similar). When the parties proceed 
to the merits in the district court, the plaintiffs will have to prove that 
whatever injunction they request is broad enough to protect against their 
proven injuries and no broader. And the Government will have another 
chance to show that any permanent injunction should be narrower than the 
preliminary one. And both sides will have to grapple with the White House’s 
announcement that the COVID emergency will finally end on May 11, 2023. 
See Exec. Off. of the President, Statement of Administration Policy Re: H.R. 
382 & H.J. Res. 7 (Jan. 30, 2023). 
AFFIRMED.   
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James C. Ho, Circuit Judge, joined by Jones, Circuit Judge, concurring:
Our court today holds that we have jurisdiction to hear this challenge 
to the President’s vaccine mandate for federal employees.  Moreover, by 
affirming the preliminary injunction, we also hold that coercing an employee 
to comply with a vaccine mandate as a condition of continued employment 
constitutes irreparable injury.1  I concur. 
Judge Higginson agrees that we have jurisdiction.  But he concludes 
that we should deny relief on the merits and therefore reverse.  He notes that 
“the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take 
Care that the Laws be faithfully executed.’”  Post, at 77 (Higginson, J., 
concurring in part and dissenting in part) (quoting Seila Law LLC v. 
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (quoting U.S. 
Const. art. II, § 1, cl. 1; id. at § 3)).  He concludes that the President 
possesses the constitutional authority to order federal employees to comply 
with his vaccine mandate, if they wish to avoid removal from office. 
I certainly agree that “[t]he entire ‘executive Power’ belongs to the 
President alone.”  Seila Law, 140 S. Ct. at 2197.  Contrast U.S. Const. art. 
I, § 1 (vesting the legislative power in a bicameral Congress); id. art. III, § 1 
(vesting the judicial power in “one supreme Court, and in such inferior 
Courts as the Congress may from time to time ordain and establish”).  To be 
sure, “it would be impossible for one man to perform all the great business of 
the State.”  Seila Law, 140 S. Ct. at 2197 (quotations omitted).  So “the 
 
1 Cf. NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (“A vaccination . . . cannot be 
undone at the end of the workday.”) (quotations omitted); Louisiana v. Biden, 55 F.4th 
1017, 1022 (5th Cir. 2022) (noting that “employees would have to undertake an irreversible 
decision—vaccination—in order to be compliant with this mandate”); see also Sambrano v. 
United Airlines, Inc., 45 F.4th 877, 878–79 (5th Cir. 2022) (Ho, J., concurring in denial of 
rehearing en banc) (same). 
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Constitution assumes that lesser executive officers will assist the supreme 
Magistrate in discharging the duties of his trust.”  Id. (quotations omitted).  
But “[t]hese lesser executive officers must remain accountable to the 
President, whose authority they wield.”  Id. 
All of this means that the President should possess the constitutional 
authority under Article II to remove his subordinates from office.  See, e.g., 
Myers v. United States, 272 U.S. 52, 122, (1926) (“[W]hen the grant of the 
executive power is enforced by the express mandate to take care that the laws 
be faithfully executed, it emphasizes the necessity for including within the 
executive power as conferred the exclusive power of removal.”); Free Enter. 
Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 498 (2010) (insulating 
subordinates from removal “subverts the President’s ability to ensure that 
the laws are faithfully executed—as well as the public’s ability to pass 
judgment on his efforts”); Seila Law, 140 S. Ct. at 2203–04 (observing that 
“the threat of removal” allows the President to “meaningfully control[]” 
subordinates, and that “removal at will” is “the most direct method of 
presidential control”); Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021) (“The 
President must be able to remove not just officers who disobey his commands 
but also those he finds negligent and inefficient, those who exercise their 
discretion in a way that is not intelligent or wise, those who have different 
views of policy, those who come from a competing political party who is dead 
set against [the President’s] agenda, and those in whom he has simply lost 
confidence.”) (cleaned up).2 
 
2 But see Collins v. Mnuchin, 938 F.3d 553, 614 (5th Cir. 2019) (en banc) (Higginson, 
J., dissenting in part) (“The Constitution affords sparse materials to resolve this 
question—only broad pronouncements that ‘[t]he executive Power shall be vested’ in the 
President and that ‘he shall take Care that the Laws be faithfully executed.’  Art. II §§ 1, 3.  
These clauses say nothing about removal of executive-branch officers.”). 
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In reality, however, the President actually controls surprisingly little 
of the Executive Branch.  Only a tiny percentage of Executive Branch 
employees are subject to Presidential removal.  The overwhelming majority 
of federal employees, by contrast, are protected against Presidential removal 
by civil service laws.  Compare Off. of Mgmt. & Budget, Exec. Off. 
of the President, Budget of the United States 
Government, Fiscal Year 2023, at 83 (2022) (4.2 million Executive 
Branch employees), with House Committee on Oversight and 
Reform, 
United 
States 
Government 
Policy 
and 
Supporting Positions 209–15 (2020) (commonly known as the “Plum 
Book”) (fewer than four thousand Executive Branch employees are subject 
to removal at will by the President). 
The net result is that there are only a “small number of politically 
appointed leaders” who “enjoy only limited control of the mass of civil 
servants.”  Eric Posner, And if Elected: What President Trump Could or 
Couldn’t Do, N.Y. Times, June 3, 2016.  Federal civil service laws make it 
virtually impossible for a President to implement his vision without the active 
consent and cooperation of an army of unaccountable federal employees.  
And that presents a rather curious distortion of our constitutional structure.  
The Constitution requires the President, the Vice President, and every 
member of Congress to stand for re-election if they wish to continue holding 
federal office and exercising federal power.  Meanwhile, countless Executive 
Branch employees have the ability to influence or implement federal policy 
in their capacity as subordinates of the President—yet they enjoy a de facto 
form of life tenure, akin to that of Article III judges.  See U.S. Const. art. 
III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold 
their Offices during good Behaviour”). 
It’s a phenomenon that legal scholars have identified (and decried) for 
decades.  “The critical fact of civil service today is that covered employees 
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are rarely discharged from government for inadequately doing their jobs.  The 
civil service system has provided the equivalent of life tenure (at least until 
retirement) once a brief probation period is passed, absent what the 
government considers a serious act of misconduct.”  Gerald E. Frug, Does the 
Constitution Prevent the Discharge of Civil Service Employees?, 124 U. Pa. L. 
Rev. 942, 945 (1976).  See also Philip K. Howard, Not 
Accountable: Rethinking The Constitutionality Of 
Public Employee Unions 136 (2023) (“Federal government . . . is an 
accountability-free zone.  More federal employees die on the job than are 
terminated for poor performance.  Regular stories emerge of employees who 
cannot be terminated despite outrageous behavior.”). 
Not surprisingly, these “tenure-like protections for the civil service 
have sharply reduced the president’s ability to change the direction of the 
permanent bureaucracy.”  John Yoo, Unitary, Executive, or Both?, 76 U. 
Chi. L. Rev. 1935, 1956 (2009). 
What’s more, federal employees know it—and they take full-throated 
advantage of it.  As anyone who has ever held a senior position in the 
Executive Branch can attest, federal employees often regard themselves, not 
as subordinates duty-bound to carry out the President’s vision whether they 
personally agree with it or not, but as a free-standing interest group entitled 
to make demands on their superiors.  See, e.g., Philip K. Howard, Civil Service 
Reform: Reassert the President’s Constitutional Authority, The American 
Interest, Jan. 28, 2017 (“The slow dissipation of presidential power is a 
story rich with irony—designed to avoid interest group capture, the civil 
service became its own special interest.”). 
As a result, “Presidents can have a hard time implementing their 
agenda if civil servants collectively drag their feet or lack the competence to 
carry out the President’s orders.”  Jason Marisam, The President’s Agency 
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Selection Powers, 65 Admin. L. Rev. 821, 863 (2013).  “Even if a president 
has the perfect ally running an agency, that ally may still fail to produce the 
desired results if the ally runs into resistance from his civil servants.”  Id.   
Indeed, one scholar has pointedly noted that the single “biggest 
obstacle” for any President “is not the separation of powers” designed by 
our Founders, “but the millions of federal employees who are supposed to 
work for him.”  Posner, supra (emphasis added).  “These employees can drag 
their feet, leak to the press, threaten to resign and employ other tactics to 
undermine [a President’s] initiatives if they object to them.”  Id.  “They’re 
also hard to fire, thanks to Civil Service protections.”  Id.  See, e.g., Marisam, 
supra, at 863–64 (“For example, the efforts of President Reagan’s EPA 
Administrator, Ann Gorsuch, to slow down and halt EPA regulatory actions 
was marked by staff resistance to the Administration’s attempt to change the 
agency’s goals.”) (cleaned up). 
In an appropriate case, we should consider whether laws that limit the 
President’s power to remove Executive Branch employees are consistent 
with the vesting of executive power exclusively in the President.  See, e.g., 
Howard, Not Accountable, supra, at 140 (“[T]he president and 
federal supervisory officials must have authority to manage personnel . . . . 
This requires, among other remedies, invalidating specific provisions of the 
Civil Service Reform Act of 1978 that . . . disempower the president and his 
appointees from removing officers.”); Yoo, supra, at 1957 (“[P]residents 
consistently followed a common position toward the civil service that sought 
to maintain the right to fire federal employees in order to guarantee a uniform 
execution of federal law.”); Christopher S. Yoo, Steven G. Calabresi, and 
Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945–2004, 
90 Iowa L. Rev. 601, 660 (2005) (“[T]he idea that the civil service laws 
limit the president’s power to remove is of fairly recent vintage dating back 
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only to 1974.”); Frug, supra, at 949 (noting that “the President’s absolute 
power of removal of federal employees was established in principle” in 1789). 
This is not that case, however.  That’s because the Government 
doesn’t challenge the validity of the CSRA or invoke the President’s Article 
II removal power in this case.  It doesn’t do so in its briefing.  And it 
reconfirmed during oral argument that it doesn’t challenge the 
constitutionality of the CSRA here.  During oral argument, I asked whether 
the President has the power under the Constitution to remove any Executive 
Branch employee, notwithstanding laws like the CSRA.  Counsel for the 
Government responded:  “Plaintiffs say periodically we haven’t challenged 
the constitutionality of the CSRA.  That’s absolutely right—we have not.”  
Oral Arg. at 5:40-6:23. 
The argument is thus forfeited.  We therefore have no occasion to 
decide whether this case implicates the President’s constitutional power to 
remove employees who are unwilling to faithfully execute his policy vision 
for our country—or if, instead, the President is impermissibly leveraging 
(and therefore exceeding) his removal power in order to meddle in the private 
lives of federal employees.  See post, at 52 (Higginson, J., concurring in part 
and dissenting in part) (noting that the President’s vaccine mandate 
“requires federal employees to ‘protect themselves’ against COVID-19 by 
getting FDA-approved vaccinations”); cf. Louisiana v. Biden, 55 F.4th 1017, 
1030 (5th Cir. 2022) (“unlike the non-discrimination, E-Verify, Beck rights, 
and sick leave orders, which govern the conduct of employers, the [President’s 
federal contractor] vaccine mandate purports to govern the conduct of 
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employees – and more than their conduct, purports to govern their individual 
healthcare decisions”).3 
 
3 See also Horvath v. City of Leander, 946 F.3d 787, 799 (5th Cir. 2020) (Ho, J., 
concurring in the judgment and dissenting in part) (observing that a municipal vaccine 
mandate “forces [an employee] to choose between sacrificing his faith or working under 
unequal conditions”); BST Holdings, L.L.C. v. Occupational Safety & Health Admin., 17 
F.4th 604, 618–19 (5th Cir. 2021) (OSHA vaccine mandate implicates “the liberty of 
individuals to make intensely personal decisions according to their own convictions”); 
Sambrano v. United Airlines, Inc., 19 F.4th 839, 841 (5th Cir. 2021) (Ho, J., dissenting) 
(“Vaccine mandates . . . present a crisis of conscience for many people of faith.  It forces 
them to choose between the two most profound obligations they will ever assume—holding 
true to their religious commitments and feeding and housing their children.”); Sambrano 
v. United Airlines, Inc., 2022 WL 486610, *9 (5th Cir. Feb. 17, 2022) (“United has 
presented plaintiffs with two options: violate their religious convictions or lose all pay and 
benefits indefinitely.  That is an impossible choice for plaintiffs who want to remain faithful 
but must put food on the table.”). 
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Haynes, Circuit Judge, concurring in the judgment in part and dissenting 
in part: 
I. 
Concurrence 
I concur in the en banc court’s judgment that we have jurisdiction over 
pre-enforcement challenges to President Biden’s vaccine mandate for federal 
employees.  I also concur in the affirmance of the preliminary injunction as 
to the parties in this case, but I respectfully dissent from the affirmance of the 
grant of a nationwide injunction. 
II. 
Dissent1 
The district court noted that it was “cognizant of the ‘equitable and 
constitutional questions raised by the rise of nationwide injunctions.’” Feds 
for Medical Freedom v. Biden, 581 F. Supp. 3d 826, 836 (S.D. Tex. 2022) 
(quoting Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 601 (2020) 
(Gorsuch, J., concurring)).  Nevertheless, the district court concluded that 
tailoring relief here was impractical.  581 F. Supp. 3d at 836.  According to 
the district court, the fact that the lead Plaintiff—Feds for Medical 
Freedom—has more than 6000 members spread across every state and in 
nearly every federal agency means that limiting the injunction’s scope would 
“prove unwieldy and would only cause more confusion.”  Id. (quotation 
omitted).   
However, a federal court’s “constitutionally prescribed role is to 
vindicate the individual rights of the people appearing before it,” and 
accordingly “[a] plaintiff’s remedy must be tailored to redress the plaintiff’s 
particular injury.”  Gill v. Whitford, 138 S. Ct. 1916, 1933–34 (2018) 
(emphasis added); see also Dep’t of Homeland Sec., 140 S. Ct. at 600 (Gorsuch, 
 
1 Judges Higginson and Willett join in Section II. 
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J., concurring) (“[W]hen a court . . . order[s] the government to take (or not 
take) some action with respect to those who are strangers to the suit, it is hard 
to see how the court could still be acting in the judicial role of resolving cases 
and controversies.”); Georgia v. President of the United States, 46 F.4th 1283, 
1303 (11th Cir. 2022) (“In their universal reach to plaintiffs and nonplaintiffs 
alike, nationwide injunctions push against the boundaries of judicial power, 
and very often impede the proper functioning of our federal court system.”).  
This seems especially true where, as here, several district courts (and two 
circuit courts) across the country have come out differently from this district 
court on these issues.2  For instance, the Government noted that it has 
successfully defended the executive order in the Fourth Circuit3 and is 
currently defending the dismissal of similar challenges in the Third and D.C. 
Circuits,4 “[b]ut those cases are rendered essentially meaningless by this 
nationwide injunction.”5   
 
2 At least twelve district courts previously rejected challenges to Executive Order 
14043 for various reasons.  See Feds for Med. Freedom, 30 F.4th at 505 n.1 (collecting cases). 
3  The Fourth Circuit, like the panel opinion in this case, determined that the CSRA 
deprived the district court of jurisdiction.  Accordingly, it vacated the district court’s 
judgment denying relief to the plaintiffs on the merits and dismissed the suit for lack of 
jurisdiction.  Rydie v. Biden, No. 21-2359, 2022 WL 1153249, at *8 (4th Cir. Apr. 19, 2022). 
4  The Government subsequently noted that the D.C. Circuit ruled in its favor.  See 
Payne v. Biden, --- F.4th ----, 2023 WL 2576742 (D.C. Cir. 2023). 
5 The majority opinion misunderstands my point here: we should generally only 
address the parties’ request for a preliminary injunction, particularly in this circumstance, 
where other litigants are raising the same issues in other circuits.  In other words, I am less 
concerned with whether we are creating circuit splits than whether we are appropriately 
limiting the scope of our decisions to the parties before us.  The reasoning other circuits 
use to resolve these issues is therefore not my point.  That said, the majority is plainly 
incorrect that its opinion doesn’t truly conflict with other courts’ decisions.  The other 
circuits’ jurisdictional rulings are far from “merely incidental”—they are wholly fatal to 
the plaintiffs’ claims.  Therefore, a nationwide ruling which the majority opinion seems to 
 
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Nor is tailored injunctive relief unworkable here.  The district court 
could direct Feds for Medical Freedom to submit the names of its members 
to the Government and employing agencies in order to provide them relief.  
If it has not already done so, Feds for Medical Freedom also could provide 
either online proof of membership or physical cards to that effect that the 
unvaccinated individual member employees could utilize as proof to avoid 
any adverse employment actions.  Additionally, as the Government notes, 
“[a]s for the court’s view that tailored relief would be unworkable because 
[Feds for Medical Freedom] ‘is actively adding new member[s],’ it is far from 
clear that [Feds for Medical Freedom] has standing to litigate on behalf” of 
potential or future members.6  In contrast, the plaintiffs wholly failed to meet 
their burden to show that tailoring was not workable.  See, e.g., Ashcroft v. 
ACLU, 542 U.S. 656, 666 (2004) (on appeal from grant of preliminary 
injunction, the party who “bears the burden of proof on the ultimate 
question” bears the same burden on appeal);  Enter. Int’l, Inc. v. Corporacion 
Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1982) (“[T]he 
district court must remember that a preliminary injunction is an 
extraordinary and drastic remedy, and that the movant has a heavy burden of 
persuading the district court that all four elements are satisfied. Thus, if 
the movant does not succeed in carrying its burden on any one of the four 
prerequisites, a preliminary injunction may not issue and, if issued, will be 
 
find overrules the other circuits is also problematic because we have no greater jurisdiction 
to grant relief (or make decisions about federal court jurisdiction) than the other circuits.   
6 The majority opinion’s last substantive paragraph notes that this case “only 
involves a preliminary injunction” which has the “purpose to maintain the status quo until 
the parties have the chance to adjudicate the merits.”  Ante, at 37 (emphasis added).  
Exactly—we should not address the interests of non-parties where, as here, it is certainly 
feasible to tailor the injunctive relief to the plaintiffs. 
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vacated on appeal.” (internal quotation marks, alteration, and citation 
omitted) (emphasis added)).   
 
 
 
III. 
Conclusion 
Accordingly, the district court erred in issuing a nationwide injunction 
when a tailored injunction is not unworkable or impossible to apply.  
Therefore, I dissent from the court’s decision to leave the nationwide 
injunction in place rather than reversing the portion of the injunction that 
extends beyond the plaintiffs.   
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Stephen A. Higginson, Circuit Judge, joined by Southwick, Circuit 
Judge, concurring in part and dissenting in part: 
 
This case begins with the question of whether we have jurisdiction to 
review the President’s vaccine requirement for Executive Branch employees.  
If the answer is yes, we also must decide whether the President’s order 
exceeded his authority to require his employees to get an FDA-approved 
vaccination during a pandemic that has killed over a million Americans.   
For the wrong reasons, our court correctly concludes that we do have 
jurisdiction.  But contrary to a dozen federal courts—and having left a 
government motion to stay the district court’s injunction pending for more 
than a year—our court still refuses to say why the President does not have 
the power to regulate workplace safety for his employees. 
* * * 
The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., 
generally precludes subject-matter jurisdiction over pre-enforcement 
challenges to Executive Branch employment policies.  For that reason, I 
cannot agree with our court’s blueprint for covered employees to short 
circuit the CSRA by filing a federal lawsuit against workplace regulations 
before they are disciplined.  Now, litigants can forum shop challenges to 
federal employment policies in our court, even though Congress directed 
their cases to the Federal Circuit.  However, because I conclude the CSRA 
does not provide meaningful judicial review of the plaintiffs’ pre-
enforcement challenge and Congress did not intend the CSRA to foreclose 
judicial review of their separation-of-powers claim, I concur that we have 
jurisdiction over this claim. 
On the merits, our court is wrong that the plaintiffs are entitled to a 
preliminary injunction, let alone one that sweeps nationwide.  The vaccine 
requirement fell within the President’s power to regulate his employees.  Nor 
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have the plaintiffs shown that they are likely to suffer an irreparable injury 
from the requirement in the absence of injunctive relief.  Without identifying 
any reason that the requirement exceeded Presidential authority or any 
irreparable injury that the plaintiffs will suffer, our court concludes that such 
an injunction, which overruled all other federal courts that left the mandate 
untouched, is justified. 
Setting aside the substance of what our court says on the merits, I 
disagree with how we say it.  Today, our court affirms a nationwide injunction, 
put in place over a year ago, without explanation or analysis of any of the 
preliminary injunction factors.  This method of rubberstamping a district 
court’s nullification of the President’s authority over the Executive Branch 
is unprecedented and improper on en banc rehearing.  The People’s trust in 
our independence is undermined when we answer vital constitutional 
questions without showing our work—especially when the questions before 
us “are inescapably entangled in political controversies” and “touch the 
passions of the day.”  Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 
123, 149 (1951) (Frankfurter, J., concurring).   
I. 
 
By September 2021, more than 600,000 Americans had died from 
COVID-19.  Covid Data Tracker Weekly Review: Easy as 1-2-3, Ctrs. for 
Disease Control & Prevention (Interpretive Summary for Aug. 27, 
2021).  Millions were missing work each week.  Educational Attainment for 
Adults Not Working at Time of Survey, by Main Reason for Not Working and 
Source Used to Meet Spending Needs, Weekly 37 Household Pulse Survey: Sept. 1 
– Sept. 13, U.S. Census Bureau (Sept. 21, 2021).   
To combat those threats to “the health and safety of the [f]ederal 
workforce and the efficiency of the civil service,” on September 9, 2021, the 
President issued Executive Order 14043.  Exec. Order No. 14043, 86 Fed. 
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Reg. 50,989, 50,989 (Sept. 9, 2021).  This order requires federal employees 
to “protect themselves” against COVID-19 by getting FDA-approved 
vaccinations.  Id.  Specifically, the President directed executive agencies to 
implement “a program to require COVID-19 vaccination for all of its 
[f]ederal employees, with exceptions only as required by law.”  Id. at 50,990.   
Pursuant to the Executive Order, the Safer Federal Workforce Task 
Force issued guidance stating that covered employees would “need to be 
fully vaccinated by November 22, 2021.”  Vaccinations, Safer Fed. 
Workforce, https://perma.cc/G8T6-K8XN.  The guidance said that 
agencies “may be required to provide a reasonable accommodation to 
employees” who did not get vaccinated “because of a disability” or “a 
sincerely held religious belief, practice, or observance.”  Id.    
The guidance also explained how agencies could enforce the vaccine 
requirement.  Agencies should first provide “an appropriate period of 
education or counseling” to employees who initially fail to comply with the 
requirement.  Id.  Afterwards, if an employee still does not get vaccinated, an 
agency could “issue a letter of reprimand, followed by a short suspension,” 
which would “generally” last “14 days or less.”  Id.  The agency could 
propose that the employee be removed if the employee does not comply with 
the requirement during the suspension.  Id.  The guidance further noted that 
“[e]mployees who violate lawful orders,” like the requirement, “are subject 
to discipline, . . . including termination or removal.”  Id.  
In December 2021, Feds for Medical Freedom, individual federal 
employees, and other plaintiffs challenged Executive Order 14043 in federal 
district court.  They alleged that the Executive Order is ultra vires because it 
exceeded the President’s constitutional and statutory authority, and they 
challenged the Executive Order as arbitrary and capricious under the 
Administrative Procedure Act (APA), 5 U.S.C. § 706.  The plaintiffs moved 
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for a preliminary injunction, which the district court granted.  See Feds for 
Med. Freedom v. Biden, 581 F. Supp. 3d 826, 836-37 (S.D. Tex. 2022), vacated, 
30 F.4th 503 (5th Cir. 2022), reh’g granted, 37 F.4th 1093.  In granting the 
injunction, the district court split from a dozen other district courts who had 
already rejected similar challenges.1  See Feds for Med. Freedom, 30 F.4th at 
505 n.1 (collecting cases). 
The government appealed and moved for a stay pending appeal.  A 
divided panel carried the motion with the case, see Feds for Med. Freedom v. 
Biden, 25 F.4th 354 (5th Cir. 2022) (per curiam), and a divided panel then 
vacated the injunction on the basis that the CSRA precluded the district 
court’s exercise of jurisdiction, see Feds for Med. Freedom v. Biden, 30 F.4th 
503, 511 (5th Cir. 2022).  Our court granted rehearing en banc.  Feds for Med. 
Freedom v. Biden, 37 F.4th 1093 (5th Cir. 2022) (per curiam).   
II.   
Congress’s constitutional power to establish inferior federal courts 
includes the power to define their jurisdiction.  See U.S. Const. art III, § 1; 
Lockerty v. Phillips, 319 U.S. 182, 187 (1943).  Pursuant to this power, 
Congress can preclude district courts from exercising jurisdiction by 
requiring certain claims “to proceed exclusively through a statutory review 
scheme.”  Elgin v. Dep’t of Treasury, 567 U.S. 1, 10 (2012).  
In determining whether a statute precludes district court jurisdiction, 
we consider whether Congress’s intent to do so is “fairly discernible in the 
 
1 The district court’s decision also conflicts with the Fourth Circuit’s and D.C. 
Circuit’s conclusion that Congress precluded jurisdiction over a similar challenge to the 
vaccine requirement.  See Payne v. Biden, --- F.4th ----, 2023 WL 2576742 (D.C. Cir. 2023); 
Rydie v. Biden, No. 21-2359, 2022 WL 1153249 (4th Cir. Apr. 19, 2022).  Another appeal is 
pending before the Third Circuit.  See Smith v. Biden, No. 21-CV-19457, 2021 WL 5195688 
(D.N.J. Nov. 8, 2021), appeal docketed, No. 21-3091 (3d Cir. Nov. 10, 2021). 
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statutory scheme.”  Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 
(1994).  If so, we decide whether the plaintiffs’ claims “are of the type 
Congress intended to be reviewed within this statutory structure.”  Id. at 212.  
Three factors are relevant to this inquiry: whether (1) “a finding of preclusion 
could foreclose all meaningful judicial review,” (2) the claims are “wholly 
collateral to a statute’s review provisions,” and (3) the claims are “outside 
the agency’s expertise.”  Id. at 212-13 (cleaned up).  
Applying this Supreme Court test, the CSRA generally precludes 
district court jurisdiction over pre-enforcement challenges to Executive 
Branch employment policies.  But, as I explain below, the plaintiffs’ 
separation-of-powers claim is the rare type of pre-enforcement challenge that 
Congress did not intend to preclude in the CSRA.  Therefore, I agree 
narrowly in outcome with the majority that we have jurisdiction over 
plaintiffs’ pre-enforcement challenge to the Executive Order as ultra vires.2   
But the majority takes two significant wrong turns in reaching its 
jurisdictional conclusion, which rejects Supreme Court precedent and 
imperils Congress’s CSRA regime.  First, the majority is incorrect that 
plaintiffs are not challenging a “personnel action” within the meaning of the 
CSRA.  In addition, the majority is mistaken that Congress did not intend the 
CSRA to preclude jurisdiction over pre-enforcement challenges to personnel 
actions covered by the statute.  This second error of our court is grave and 
lets any covered employee facing proposed discipline rush to federal court 
ahead of the statutory timeline contrary to Supreme Court precedent and the 
text of the CSRA. 
 
2 With the benefit of en banc argument, I have reconsidered my initial view that the 
district court likely lacked jurisdiction over the entire case.  Feds for Med. Freedom v. Biden, 
25 F.4th 354, 356 (5th Cir. 2022) (Higginson, J., dissenting), though I continue to believe 
that jurisdiction over plaintiffs’ APA claim is precluded.   
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A. 
 
The CSRA imposed a “comprehensive and integrated review 
scheme” for “personnel action taken against federal employees.”  United 
States v. Fausto, 484 U.S. 439, 454, 455 (1988).  This system replaced a set of 
“haphazard” and “patchwork” “arrangements for administrative and 
judicial review of personnel action,” which had resulted in a “wide 
variation[] in [district court] decisions issued on the same or similar 
matters.”  Id. at 444-45 (cleaned up).  Among other reforms, the CSRA 
created the Merit Systems Protection Board (MSPB), “a quasi-judicial 
agency with the power to adjudicate disputes arising from adverse personnel 
actions taken against covered federal employees.”  Zummer v. Sallet, 37 F.4th 
996, 1003 (5th Cir. 2022), cert. denied, --- S. Ct. ----, 2023 WL 2563318 (2023). 
Under the CSRA’s “elaborate new framework,” challenges to 
“minor adverse action[s],” “major adverse action[s],” and “prohibited 
personnel practices” are channeled into separate procedural tracks.  Fausto, 
484 U.S. at 443, 445-47 (cleaned up); see 5 U.S.C. §§ 1212, 1214, 2301, 2302, 
7502, 7503, 7512, 7513; see also 5 U.S.C. § 4303 (review of actions based on 
unacceptable performance). 
Minor adverse actions, meaning suspensions lasting fourteen days or 
less, are not appealable to the MSPB.  See 5 U.S.C. § 7503; Fausto, 484 U.S. 
at 446.  Instead, an employee against whom such a suspension is proposed is 
entitled to certain procedural protections, including notice, an opportunity 
to respond, representation by an attorney, and a written decision.  5 U.S.C. 
§ 7503(b)(1)-(4).  
Major adverse actions, including removal and suspension for more 
than fourteen days, id. § 7512(1)-(5); Fausto, 484 U.S. at 446-47, trigger a 
similar set of safeguards.  When such an action is proposed against an 
employee, he or she is generally entitled to “at least [thirty] days’ advance 
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written notice,” “a reasonable time . . . not less than [seven] days . . . to 
answer,” representation by an attorney, and a written decision.  5 U.S.C.  
§ 7513(b)(1)-(4).    
Unlike minor adverse actions, major adverse actions can be reviewed 
in federal court.  But this channel is narrowly prescribed.  An employee 
“against whom [a major adverse] action is taken . . . is entitled to appeal to 
the [MSPB],” id. § 7513(d), and the United States Court of Appeals for the 
Federal Circuit has jurisdiction over appeals from the MSPB’s final orders 
and decisions.  See id. § 7703(a)(1), (b)(1)(A).  
  Finally, the CSRA includes a mechanism for employees to challenge 
a “personnel action” that is a “prohibited personnel practice.”  Id. 
§ 2302(a)(1), (a)(2), (b).  The statute lists eleven types of personnel actions 
and includes a residual clause that covers “any other significant change in 
duties, responsibilities, or working conditions.”  Id. § 2302(a)(2)(A)(xii).  An 
employee may challenge a prohibited personnel practice by making an 
allegation to the Office of Special Counsel (OSC).  Id. § 1214(a)(1)(A), (a)(3); 
see id. § 1212(a)(2).  OSC must investigate the allegation, id. § 1214(a)(1)(A), 
and may petition the MSPB for corrective action, id. § 1214(b)(2)(C).  The 
Federal Circuit can review a final order of the MSPB in response to such a 
petition.  Id. §§ 1214(c), 7703(b)-(c).  Therefore, where prohibited personnel 
practices are concerned, access to the MSPB and the Federal Circuit depends 
on OSC’s discretion with limited exceptions.  See id. § 1214(a)(3) (exceptions 
for cases where (i) other law provides a right of direct appeal to the MSPB or 
(ii) OSC declines to seek corrective action after terminating an investigation 
into retaliation as described in § 2302(b)(8) and § 2302(b)(9)(A)(i), (B), (C), 
and (D)).   
 
 
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B. 
 
The Supreme Court has held that the CSRA “forecloses judicial 
review” for employees “to whom the CSRA grants administrative and 
judicial review” as well as for those employees “to whom the CSRA denies 
statutory review.”  Elgin, 567 U.S. at 11.   
Specifically, in Elgin v. Department of Treasury, the Court, in an 
opinion written by Justice Thomas, decided that the CSRA precluded 
jurisdiction over employees’ constitutional claims challenging their removal 
from federal employment.  567 U.S. 1, 8 (2012).  And in United States v. 
Fausto, the Court, in an opinion written by Justice Scalia, decided that the 
exclusion of certain employees from the CSRA review scheme for major 
adverse actions precluded jurisdiction over those employees’ challenges to 
those actions.  484 U.S. 439, 455 (1988).   
These precedents control here. 
1. 
 
To begin, because the vaccine requirement is a “significant change in 
[an employee’s] . . . working conditions,” 5 U.S.C. § 2302(a)(2)(A)(xii), the 
CSRA gives plaintiffs a mechanism for “administrative and judicial review,” 
Elgin, 567 U.S. at 11. 
“Working conditions” are the circumstances under which an 
employee performs his or her job.3  The vaccine requirement changes those 
 
3 See Fort Stewart Schs. v. Fed. Lab. Relations Auth., 495 U.S. 641, 645 (1990) 
(explaining, with reference to different CSRA provision, that “working conditions . . . 
refers, in isolation, only to the ‘circumstances’ or ‘state of affairs’ attendant to one’s 
performance of a job”); Hesse v. Dep’t of State, 217 F.3d 1372, 1378 (Fed. Cir. 2000) 
(defining the phrase in § 2302 to mean “the physical conditions under which an employee 
labors”); Mahoney v. Donovan, 721 F.3d 633, 636 (D.C. Cir. 2013) (defining the phrase in 
 
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circumstances.  Employees covered by the requirement have to get 
vaccinated before going to work and work only with other vaccinated or 
exempted employees.  Being vaccinated against a pandemic disease and being 
surrounded by vaccinated people are circumstances under which an 
employee does his job according to any test: vaccination is a physical 
condition of labor because it affects the employee’s body during work, Hesse, 
217 F.3d at 1378; vaccination manifestly impacts absenteeism and “the 
efficiency of the civil service,” Exec. Order No. 14043, 86 Fed. Reg. at 
50,990; see Mahoney, 721 F.3d at 636, by reducing the incidence and severity 
of disease; and vaccination is a “daily, concrete parameter[]” of federal 
employment because it concerns “the provision of necessary . . . 
resources”—shots that ensure employees can stay healthy and do their jobs, 
Turner, 502 F. Supp. 3d at 367.4  A vaccination requirement is therefore a 
“working condition” within the meaning of § 2302(a)(2)(A)(xii).  
 
§ 2302 as concerning actions that “affect the ability of [employees] to do their jobs 
efficiently and effectively”); Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 
367 (D.D.C. 2020) (defining the phrase in § 2302 as “generally refer[ring] to the daily, 
concrete parameters of a job, for example, hours, discrete assignments, and the provision 
of necessary equipment and resources”); see also Sistek v. Dep’t of Veterans Affs., 955 F.3d 
948, 955 (Fed. Cir. 2020) (“[A] retaliatory investigation, either on its  own or as part of a 
broader set of circumstances, may . . . rise[] to the level of a significant change in working 
conditions.” (cleaned up)). 
4 Many Executive Branch employees do not have the luxury to decide for 
themselves to put up plexiglass barriers, require attorneys to wear masks, and conduct 
judicial proceedings by videoconference, as we can order at our discretion.  See, e.g., Order, 
General Dkt. No. 2020-5, United States Court of Appeals for the Fifth Circuit (authorizing 
panels to conduct remote oral arguments). Indeed, some federal courts mandated 
vaccinations for court employees and lawyers appearing for in-person oral argument. See 
Order Regarding Masking, Vaccination, and COVID-19 Self-Certification, General Order 
No. 21-009, United States Court of Appeals for the Seventh Circuit.  State courts took 
similar measures.  See Keshia Clukey, Four Unvaccinated Judges in New York Face Sanctions, 
Removal, Bloomberg Law (Mar. 23, 2022). 
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Statutory context shows that vaccination is a working condition.  The 
CSRA lists twelve categories of “personnel action” in § 2302(a)(2)(A), 
starting with nine conventional types of “individualized employment 
decisions,” as the majority puts it.  These include “appointment,” 
“promotion,” “disciplinary or corrective action,” “detail, transfer, or 
reassignment,” 
“reinstatement,” 
“restoration, 
“reemployment,” 
“performance evaluation,” and “decision[s] concerning pay, benefits, or 
awards, or concerning education or training.”  5 U.S.C. § 2302(a)(2)(A)(i)-
(ix).  Notably, then, the list shifts.  Romanette xi refers in relevant part to 
“the implementation of any nondisclosure policy.”  Id. § 2302(a)(2)(A)(xi) 
(emphasis added).  And romanette x concerns “a decision to order 
psychiatric testing or examination”—a medical procedure that very well 
could occur outside the workplace.  Id. § 2302(a)(2)(A)(x).  So, contrary to 
the majority’s view, § 2302(a)(2)(A) does include workplace medical 
policies that are “government-wide” and require “medical decisions made 
outside the workplace.”   
 
Indeed, Congress has amended § 2302(a)(2)(A) several times to 
broaden its scope to include policies like a workplace vaccine requirement.  
When first enacted, § 2302(a)(2)(A) consisted of romanettes i to ix (the nine 
conventional employment decisions listed above) and a modified version of 
what is now romanette xii: “any other significant change in duties or 
responsibilities which is inconsistent with the employee’s salary or grade level.”  
CSRA, Pub. L. No. 95-454, ch. 23, § 2302(a)(2)(A)(x), 92 Stat. 1111 (Oct. 13, 
1978) (emphasis added).  This language made a qualifying change in “duties 
or responsibilities” dependent on an individual employee’s position.  And 
originally, psychiatric testing, nondisclosure policies, and significant changes 
in working conditions were not covered personnel actions.  
Then, in 1994, Congress added the “psychiatric testing or 
examination” romanette and edited romanette xii.  See Act of Oct. 29, 1994, 
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Pub. L. No. 103-424, sec. 5, § 2302(a)(2)(A)(x), 108 Stat. 4361.  Instead of 
“any other significant change in duties or responsibilities which is inconsistent 
with the employee’s salary or grade level,” the romanette was expanded to cover 
“any other significant change in duties, responsibilities or working 
conditions.”  Id. § 2302(a)(2)(A)(x), 108 Stat. 4361 (emphasis added).  
Finally, in 2012, Congress added the “nondisclosure policy” romanette.  See 
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 
sec. 104, § 2302(a)(2)(A)(xi), 126 Stat. 1465.   
In sum, the “working conditions” phrase (i) substituted for a 
restrictive clause linking changes in “duties or responsibilities” to individual 
employee status, (ii) was added immediately after a romanette dealing with 
medical activities, and (iii) became the neighbor of a romanette about 
nondisclosure policies.  Together, these amendments show that Congress 
understood the “working conditions” language to extend beyond the 
traditional types of individual employment decisions § 2302(a)(2)(A) had 
previously covered, to reach a workplace health policy like the vaccine 
requirement.5   
 
5 The majority relies on Gustafson v. Adkins, a Seventh Circuit case holding that 
placement of a hidden camera in a workplace changing area was not a “personnel action” 
under § 2302(a)(2)(A).  803 F.3d 883, 889 (7th Cir. 2015).  Gustafson based this decision 
on dicta in Bush v. Lucas that “wiretapping” and “warrantless searches” would not be 
personnel actions within the CSRA.  462 U.S. 367, 385 n.28 (1983).  But Lucas was decided 
almost a decade before Congress amended the CSRA to include the “working conditions” 
phrase.  And it is difficult to see how the hidden camera at issue in Gustafson did not 
significantly change “working conditions” for the surveilled employees.   
The majority’s reliance on NFIB v. OSHA is also misplaced.  142 S. Ct. 661 (2022).  
That case held that the Occupational Safety and Health Administration lacked authority 
under the Occupational Safety and Health Act (OSHA) to issue a vaccine requirement for 
certain private employers because the statute empowered the agency “to set workplace 
safety standards, not broad public health measures,” and Congress had not spoken clearly 
 
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The majority reads § 2302(a)(2)(A)(xii) as excluding the vaccine 
requirement because the requirement is “government-wide, involves 
“medical decisions made outside the workplace,” and has “consequences 
long after the employee leaves the federal workforce.”  This alternative 
reading is inconsistent with common sense and the text of the statute.   
First, the majority thinks “working conditions” refers only to 
“discrete employment decisions.”  Under this interpretation, any 
employment policy that changed working conditions for more than one 
employee would not be a “significant change in . . . working conditions.” 5 
U.S.C. § 2302(a)(2)(A)(xii).  But there is no one-at-a-time requirement in 
the text of § 2302(a)(2)(A).  Like all general policies, the vaccine requirement 
changes working conditions for each individual employee who is covered by 
it.   
Next, the majority reasons that “working conditions” cannot refer to 
“medical decisions made outside the workplace.”  Yet the majority fails to 
explain why medical decisions that impact the circumstances under which a 
job is performed—indeed, as we have seen globally, make work possible 
during a pandemic—are not working conditions, regardless of where the 
medical decision is made or the duration of its effects.   
To the extent the majority argues that medical decisions made outside 
the workplace are not covered by § 2302(a)(2)(A)(xii), the majority draws a 
line, absent from the statute, based on where the conduct targeted by an 
 
in “authorizing [OSHA] to exercise powers of vast economic and political significance.”  
Id. at 665 (cleaned up).  The jurisdictional issue in this case is not whether the President 
had authority under the CSRA to require vaccinations, but rather whether such a 
requirement changed working conditions for affected employees.  And in NFIB v. OSHA, 
the Court accepted that COVID-19 posed occupational risks; the problem was that 
OSHA’s requirement went beyond those risks to address “general public health.”  Id. at 
666.   
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employment policy occurs.  If the majority is right, a policy that promotes a 
“Drug-Free Federal Workplace” by prohibiting employees from using illegal 
drugs outside work, as President Reagan enacted, would not be a significant 
change in working conditions.6  See Exec. Order No. 12,564, 51 Fed. Reg. 
32,889, 32,889-90 (1986).  Similarly, under this novel interpretation, a ban 
on employees drinking liquor before work, requiring them to be sober at 
work, would not be a significant change in working conditions.  A policy that 
employees have to use birth control outside work in order to refrain from 
being pregnant at work would not be a significant change in working 
conditions.  Conversely, according to the majority’s logic, if the Executive 
Order or guidance had only required employees to receive the vaccine (or 
birth control) at work, the requirement would fall within § 2302(a)(2)(A).  
This arbitrary distinction ignores that there is a change in “working 
conditions” when the effects of a policy are felt at work, irrespective of the 
initial place where the policy must be followed. 
And if the majority argues that medical decisions made at the 
workplace are not covered by § 2302(a)(2)(A)(xii), that reading is contrary 
to the plain meaning of the text as courts have interpreted it. See, e.g., Fort 
Stewart Schs., 495 U.S. at 645; Hesse, 217 F.3d at 1378; Mahoney, 721 F.3d at 
636; Turner, 502 F. Supp. 3d at 367.  Under the majority’s interpretation, a 
directive that an employee receive any sort of medical treatment at work in 
order to continue working—like an order that an employee take antimalarial 
 
6 Our court found that President Reagan’s order survived a facial constitutional 
challenge.  See NTEU v. Bush, 891 F.2d 99, 102 (5th Cir. 1989).  Prior to this appeal, relying 
on the Supreme Court dicta that warrantless searches are not personnel actions, see supra 
note 5, the district court had found that the CSRA did not preclude jurisdiction over a 
challenge to the warrantless uranalysis testing aspect of President Reagan’s program.  See 
NTEU v. Reagan, 651 F. Supp. 1199, 1200-02 (E.D. La. 1987).  As I explained, because of 
amendments to the statute, the district court’s reasoning in reliance on this dicta is no 
longer persuasive.  
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medicine while detailed to a tropical environment—wouldn’t be a change in 
that employee’s working conditions.  The employee told to swallow the pills 
at her desk might be surprised to hear that news. 
Finally, the majority says that § 2302(a)(2)(A)(xii) “only include[s] 
conditions that last for the duration of the employee’s job tenure.”  The 
majority does not explain why vaccinations, which may not last forever or 
even for the entire term of employment, violate this rule.  But more 
importantly, the statute does not exclude a change in the circumstances of 
work that has persistent or permanent effects on the employee from the term 
“working conditions.”  Like the majority’s other attempts to limit the scope 
of “working conditions,” this constraint has no basis in the text of the statute.  
For those reasons, § 2302 provides a vehicle for review of the vaccine 
requirement under the CSRA, and Congress’s intent to preclude judicial 
review over challenges to the requirement is fairly discernible within the 
statutory scheme.  See Elgin, 567 U.S. at 11. 
2. 
 
Were we to assume that the vaccine requirement cannot be challenged 
under § 2302, the CSRA still generally precludes pre-enforcement challenges 
to employment policies that, if violated, would result in discipline.7  This is 
because the CSRA (i) provides for post-enforcement review of major adverse 
actions like removal, see 5 U.S.C. § 7513(d), and (ii) confers pre-enforcement 
due process protections to employees against whom minor and major adverse 
 
7 As I explain below, the requirement has been enforced against at least some of the 
plaintiffs because disciplinary actions have been taken against them, and this suit challenges 
those disciplinary actions.  But if this suit is conceived of as a true pre-enforcement 
challenge, as the majority insists—for example, if this suit only challenged the requirement 
insofar as the requirement might be used to terminate the plaintiffs in the future—then the 
CSRA still precludes pre-enforcement challenges for the reasons stated in this section.  
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actions are proposed without providing those or other employees with 
immediate review, see id. §§ 7503(b)(1)-(4), 7513(b)(1)-(4).  In other words, 
the CSRA gives statutory review to some employees (those against whom 
major adverse actions have been taken) and not others (those against whom 
major adverse actions have not been taken).  Since the CSRA denies statutory 
review to employees before they violate a policy and disciplinary action is 
taken against them, Congress’s intent to preclude jurisdiction over pre-
enforcement challenges is fairly discernible in the statute.  See Elgin, 567 U.S. 
at 11.   
This conclusion follows from the logic of Fausto.  There, the Supreme 
Court considered whether the CSRA’s “withholding of remedy” from 
certain employees “was meant to preclude judicial review for those 
employees, or rather merely to leave them free to pursue the remedies that 
had been available before enactment of the CSRA.”  484 U.S. at 443-44.  
Fausto, who had been suspended for thirty days from his job as an 
administrator at a “Young Adult Conservation Corps camp,” was a 
“nonpreference member of the excepted service.”  Id. at 441 & n.1.  The 
CSRA does not include nonpreference excepted service members in the 
definition of employees covered for minor and major adverse actions, see 5 
U.S.C. § 7511(a)(1), and so the CSRA did not give Fausto a way to obtain 
administrative review of his suspension and then appeal to the Federal 
Circuit.  See Fausto, 484 U.S. at 447-48.  The Court concluded that “the 
absence of provision for these employees to obtain judicial review” is a 
“manifestation of a considered congressional judgment that they should not 
have statutory entitlement to review for [minor and major adverse actions].”  
Fausto, 484 U.S. at 448-49 (emphasis added).   
In part, the Court reasoned that if Fausto could get judicial review of 
his thirty-day suspension because he was excluded from the CSRA scheme, 
then he could also get judicial review of a ten-day suspension even though the 
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CSRA does not provide covered employees with administrative and judicial 
review of suspensions less than fourteen days.  Id. at 449-50.  And if Fausto 
had such an expanded right to judicial review, the “preferred position” of 
covered employees in the statutory scheme would be turned upside down.  
Id.  In a footnote, the Court clarified that this line of reasoning assumes that 
employees “who are given review rights by [the CSRA] . . . cannot expand 
these rights by resort to pre-CSRA remedies.”  Id. at 450 n.3; See Graham v. 
Ashcroft, 358 F.3d 931, 934 (D.C. Cir. 2004) (Roberts, J.) (charting this logic).  
Like Fausto, the plaintiffs here would have expanded rights under the 
CSRA if they could obtain judicial review of the vaccine requirement before 
major adverse actions are taken against them.  There is generally no statutory 
mechanism for judicial review of minor adverse actions.  When a covered 
employee faces a proposed minor or major adverse action, the CSRA gives him 
procedural protections but no path to judicial review.  See 5 U.S.C. 
§§ 7503(b)(1)-(4), 7513(b)(1)-(4).  Rather, an employee must wait until the 
agency takes a major adverse action against him before appealing to the 
MSPB and the Federal Circuit.  See id. § 7513(d).  Resort to judicial review 
for a minor adverse action or a proposed action would thus expand an 
employee’s right to judicial review outside the bounds of the CSRA.  See 
Graham, 358 F.3d at 934 (applying this logic to hold that the CSRA precludes 
jurisdiction over “a personnel action as to which the CSRA grants no right of 
review, even for employees who are otherwise granted such rights under the 
CSRA in other circumstances”); Nyunt v. Chairman, Broadcasting Bd. of 
Governors, 589 F.3d 445, 448 (D.C. Cir. 2009) (Kavanaugh, J.) (“When 
Congress wants to preserve remedies outside the CSRA, it does so expressly; 
for example, the CSRA maintains federal employees’ rights to bring suit 
under Title VII and other anti-discrimination laws.”).  The same is true 
where an employee seeks to challenge an employment policy, like the vaccine 
requirement, that permits an agency to discipline violators.  See Vaccinations, 
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Safer Fed. Workforce, https://perma.cc/G8T6-K8XN.  The CSRA 
says that an employee subject to such a policy has to wait until a major 
adverse action is taken against him to get judicial review—and if the 
discipline imposed falls below threshold of a major adverse action, or is 
merely proposed, then no judicial review is available under the scheme. 
The majority argues that jurisdiction over the plaintiffs’ claims is not 
precluded because while the CSRA provides the exclusive means to 
challenge “[p]ersonnel actions covered by the CSRA,” “plaintiffs are not 
challenging CSRA-covered ‘personnel actions.’”   
But the whole point of this lawsuit is to challenge CSRA-covered 
personnel actions.  The first paragraph of the complaint says so.  “[F]ederal 
employees” like the plaintiffs “have been put in an intolerable bind,” the 
complaint alleges: “either submit to forced vaccination pursuant to illegal 
agency requirements, or forfeit a career[.]”  Consistent with this allegation, 
the plaintiffs say that they have been disciplined through formal reprimands 
and threatened with suspension and termination.  They have put forward 
evidence that disciplinary actions, including minor adverse actions, have 
been taken against them for their noncompliance with the vaccine 
requirement.8  Accordingly, while the plaintiffs allege that they “do not 
challenge any individual employment decisions,” and ask the court to hold 
 
8 See, e.g., Feds for Med. Freedom v. Biden, No. 21-CV-356, Aff. of Brian Fouche ¶ 4, 
Dkt. No. 35-1, Ex. 39 (asserting that employee “received . . . notice of a 14-day unpaid 
suspension,” which is a minor adverse action under 5 U.S.C. § 7502); id., Aff. of John 
Armbrust ¶ 6, Dkt. No. 3, Ex. 15 (asserting that employee received “written letter of 
reprimand stating [that] it is [a] ‘disciplinary action’”); id., Aff. of Nevada Ryan ¶ 6, Dkt. 
No. 3, Ex. 27 (similar); id., Aff. of Michael Ball ¶ 6, Dkt. No. 3, Ex. 16 (asserting that 
employee “was disciplined in the form of a Letter of Counseling and Education”); id., Aff. 
of M. LeeAnne Rucker-Reed ¶ 6, Dkt. No. 3, Ex. 26 (asserting that employee was 
prohibited from traveling “to attend necessary training” or “to work Judicial [C]onference 
or protection details” and “was not selected for a promotion opportunity”). 
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the vaccine requirement unlawful, they also seek to enjoin the government 
“from enforcing or implementing” the vaccine requirement—which would 
keep the government from taking CSRA-covered personnel actions, like 
suspension and termination, against them.  
Indeed, this case is justiciable because it involves challenges to CSRA-
covered personnel actions.  The plaintiffs’ Article III injuries stem from 
personnel actions that they allege have been or will be taken against them 
because of their refusal to comply with the vaccine requirement.  As the 
plaintiffs alleged in their complaint, “[t]he entire point of the [m]andate[] is 
to force vaccinations quickly by threatening to initiate drastic employment or 
contractual harms.”  There is no mandate and no justiciable case without, in 
the plaintiffs’ words, a “sword of Damocles,” or, as the Supreme Court put 
it, “expos[ure] to the imposition of strong sanctions,” Abbot Lab’ys v. 
Gardner, 387 U.S. 136, 154 (1967)—here, the personnel actions.  And the 
district court found this case ripe because plaintiffs “already have received 
letters from their employer agencies suggesting that suspension or 
termination is imminent, have received letters of reprimand, or have faced 
other negative consequences.”9  Feds for Med. Freedom, 581 F. Supp. 3d at 
832.   
The majority calls this suit a “pre-enforcement challenge” that the 
plaintiffs can bring “outside of the CSRA,” and the broader implication of 
this holding is unmistakable.  This circuit’s door is now open to all pre-
 
9 The majority contends that because the plaintiffs “claim that the President’s 
vaccine requirement violates the U.S. Constitution and the APA,” the plaintiffs do not 
challenge any personnel action.  But the legal arguments or causes of action by which the 
plaintiffs try to attack the personnel actions taken or proposed against them are immaterial 
to what the plaintiffs hope to get out of this suit: injunctive relief to avoid personnel actions.  
See Elgin, 567 U.S. at 8 (concluding that “the CSRA precludes district court jurisdiction 
over petitioners’ claims even though they are constitutional claims for equitable relief”).       
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enforcement challenges to federal employment policies.10  Plaintiffs are 
welcome to challenge any personnel action before it takes place.   
Under the majority’s rule, Justice Thomas’s Elgin and Justice Scalia’s 
Fausto are dead letters.  Elgin, who brought a constitutional challenge to a 
federal statute “bar[ring] from employment by an Executive agency anyone 
who has knowingly and willfully failed to register” for the Selective Service, 
Elgin, 567 U.S. at 7, could have forum shopped into our court if he filed when 
his removal from federal employment was ripe but had not yet taken place.  
Elgin, 567 U.S. at 7.  Likewise, Fausto could have sued when the agency 
“advised [him] that it intended to dismiss him for a number of reasons.”  
Fausto, 484 U.S. at 441.11 So the majority would let plaintiffs end run 
Supreme Court precedent. 
 
10 The majority claims that the ripeness doctrine closes this loophole because “any 
suit to enjoin a personnel action before it occurs will likely be unripe.”  This ignores that a 
personnel action may be certain to occur or imminent—and therefore ripe—long before 
the action is taken against an employee.  See Texas v. United States, 523 U.S. 296, 300 (1998) 
(“A claim is not ripe for adjudication if it rests upon contingent future events that may not 
occur as anticipated, or indeed may not occur at all.”).  
11 The majority invokes two pre-Fausto cases that explicitly exercised jurisdiction 
over certain pre-enforcement challenges.  See 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).  Because these cases 
were decided before both Fausto and Elgin mapped the landscape of CSRA preclusion, they 
are inapposite.  In particular, Devine reasoned that just because it is true that “when a 
statute provides a detailed scheme of administrative protection for defined employment 
rights, less significant employment rights of the same sort are implicitly excluded and 
cannot form the basis for relief directly through the courts,” it does not follow that “a 
detailed scheme of administrative adjudication impliedly precludes preenforcement 
judicial review of rules.” 733 F.2d at 117 n.8.  But this proposition runs headlong into the 
logic of Fausto, which I outlined in this section.  As for Weinberger, there the court relied 
entirely on the premise that “civilian federal employees may seek to enjoin government 
actions that violate their constitutional rights.”  818 F.2d at 940.  However, by ruling that 
covered employees’ constitutional claims had to run through the CSRA scheme, Elgin 
unsettled that assumption.  As the D.C. Circuit recently recognized, this part of Weinberger 
 
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Accordingly, the only conclusion consistent with the text of the 
statute and binding Supreme Court authority is that Congress’s intent to 
preclude pre-enforcement challenges is fairly discernible in the CSRA. 
C. 
 
But our inquiry does not stop there.  Jurisdiction over the plaintiffs’ 
claims is only precluded if their “claims are of the type Congress intended to 
 
“cannot survive the Supreme Court’s subsequent decisions in Thunder Basin and Elgin.”  
Payne, 2023 WL 2576742, at *6. 
Finally, the majority cites two Supreme Court cases that adjudicated the merits of 
pre-enforcement challenges to laws and programs affecting federal employees without 
addressing CSRA preclusion.  See United States v. NTEU, 513 U.S. 454 (1995); NTEU v. 
Von Raab, 489 U.S. 656 (1989).  Both these cases involved constitutional claims and were 
decided before Elgin, which clarified the standard for determining whether the CSRA 
precludes constitutional claims, see 567 U.S. at 8-10, and applied the appropriate standard 
to find that Elgin’s claims were precluded, see id. at 10-16.   
For additional reasons, neither United States v. NTEU nor NTEU v. Von Raab is 
persuasive.  It is unclear whether enforcement of the statute at issue in United States v. 
NTEU would have triggered CSRA review.  See 513 U.S. at 460 (enforcement through civil 
penalty).  And in NTEU v. Von Raab, 489 U.S. 656, the district court did consider whether 
the CSRA precluded jurisdiction, see 649 F. Supp. 380, 384-86 (E.D. La. 1986).  The district 
court’s jurisdictional holding rested on two principal grounds, one of which was abrogated 
by the CSRA amendments and the other undermined by Elgin.  First, the district court 
reasoned that the challenged program, a drug-testing scheme for certain Customs Service 
employees, was a warrantless search.  649 F. Supp. at 384-85.  Relying on dicta in Lucas 
that warrantless searches were not personnel actions under the CSRA, the district court 
decided that a challenge to the drug-testing scheme was not covered under the CSRA.  See 
id. (discussing Lucas, 462 U.S. at 385 n.28).  As I explained, supra note 5, at the time of the 
district court’s and the Supreme Court’s decisions, the CSRA had not yet been amended 
to add the “working conditions” phrase—abrogating the Lucas dicta and this part of Von 
Raab.  Regardless, since the Lucas dicta was highly persuasive when Von Raab was decided, 
it is unsurprising that the Supreme Court did not take up jurisdiction sua sponte after 
neither party raised the issue.  See Pet’rs’ Br., NTEU v. Von Raab, No. 86-1879, 1988 WL 
1025626; Resp’t’s Br., NTEU v. Von Raab, No. 86-1879, 1987 WL 880093.  Second, like 
Weinberger, the district court relied on the idea that the plaintiffs were seeking to enjoin 
unconstitutional activity.  See Von Raab, 649 F. Supp. at 385-86.  But Elgin calls this theory 
into question. 
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be reviewed within” the CSRA.  Thunder Basin, 510 U.S. at 212.  Three 
factors are probative of Congress’s intent: whether preclusion could 
foreclose all meaningful judicial review of the claims; whether the claims are 
collateral to the review scheme; and whether the claims are outside the 
agency’s expertise.  See Thunder Basin, 510 U.S. at 212-13; Free Enter. Fund 
v. Public Co. Acct. Oversight Bd., 561 U.S. 477, 489 (2010) (cleaned up) 
(“[W]e presume that Congress does not intend to limit 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.” (cleaned up)). 
 
Here, preclusion would foreclose meaningful judicial review of 
plaintiffs’ pre-enforcement challenge to the requirement.  So we ask whether 
Congress intended the CSRA to have that effect in this case.  Since plaintiffs’ 
challenge to the requirement as ultra vires sounds in separation-of-powers 
principles, I conclude, in this narrow circumstance, that this claim is not of 
the kind Congress intended to be precluded by the CSRA under Elgin and 
Fausto.12 
1. 
 
Neither § 2302, the All Writs Act, nor the procedure for challenging 
major adverse actions provides for meaningful judicial review of plaintiffs’ 
pre-enforcement challenge. 
 
12 Preclusion of plaintiffs’ claim under the APA, on the other hand, does not raise 
the same constitutional concerns.  After all, the APA does not apply to the President, see 
Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992), and Congress’s potential 
withdrawal of jurisdiction over agency-by-agency implementation of the requirement does 
not raise the specter of the President altering the separation of powers or implicate a 
constitutionally necessary remedy.  Moreover, for the reasons stated in the panel opinion, 
Feds for Med. Freedom, 30 F.4th at 510-12, the APA claim is not wholly collateral to the 
CSRA scheme and does not exceed the MSPB’s expertise. 
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I agree with the majority that plaintiffs do not have a path to 
meaningful judicial review of their separation-of-powers claim under § 2302 
or the All Writs Act, 28 U.S.C. § 1651.  As described above, judicial review 
under § 2302 is not available unless the OSC petitions the MSPB for 
corrective action.  See 5 U.S.C. §§ 1214(b)(2)(C), 1214(c), 7703(b)-(c).  The 
plaintiffs would have to wait and see if the OSC filed a petition.  And the OSC 
could insulate the requirement from judicial review by declining to escalate 
to the MSPB.13 
 
Mandamus relief under § 1651 does not offer meaningful judicial 
review, either.  While § 1651 “authorizes employment of extraordinary writs, 
it confines the authority to the issuance of process ‘in aid of’ the issuing 
court’s jurisdiction.”  Clinton v. Goldsmith, 526 U.S. 529, 534 (1999) (quoting 
28 U.S.C. § 1651(a)).  If the CSRA strips jurisdiction from federal courts to 
hear pre-enforcement challenges in their “arising under” jurisdiction, 28 
U.S.C. § 1331, then no jurisdiction exists for mandamus to aid.14  And as the 
 
13 The plaintiffs could seek a writ of mandamus compelling the OSC to take the 
ministerial act of investigating a complaint, but not to petition the MSPB for corrective 
action, which is within OSC’s discretion.  See Carson v. U.S. Off. of Special Counsel, 633 
F.3d 487, 491-92 (6th Cir. 2011). 
14 The prospective jurisdiction doctrine ordinarily permits an appellate court to 
issue writs that “are within its appellate jurisdiction although no appeal has been 
perfected.”  FTC v. Dean Foods Co., 384 U.S. 597, 630 (1966).  “Once there has been a 
proceeding of some kind instituted before an agency . . . that might lead to an appeal, it 
makes sense to speak of the matter as being within our appellate jurisdiction—however 
prospective or potential that jurisdiction might be.”  In re Tennant, 359 F.3d 523, 529 (D.C. 
Cir. 2004) (Roberts, J.) (cleaned up).  Arguably, in the event that a pre-enforcement 
complaint could be made with the OSC, the possibility that the OSC would petition the 
MSPB and that the MSPB would issue an appealable final order would render the case in 
the Federal Circuit’s protective jurisdiction.  Cf. In re Donohoe, 311 F. App’x 357, 358-59 
(Fed. Cir. 2008) (per curiam) (concluding that the court lacked authority under the All 
Writs Act to mandamus the MSPB where the petitioner ‘did not seek remedy from [the 
MSPB] or initiate any proceeding at [the MSPB] before seeking relief from [the Federal 
 
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majority points out, there is no reason why the CSRA would strip jurisdiction 
under § 1331 but not § 1651. 
 
Finally, the CSRA channel for appellate review over major adverse 
actions is not meaningfully available in this case.  See 5 U.S.C. §§ 7513(d), 
7703(a)(1), (b)(1)(A).  The Executive Order does not require agencies to take 
major adverse actions against noncompliant employees, see Exec. Order No. 
14043, 86 Fed. Reg. at 50,990, and neither does the guidance.  Instead, the 
guidance gives agencies discretion but does not explicitly require them to 
discipline employees with “a letter of reprimand, followed by a short 
suspension,” “a longer second suspension,” and “proposing removal.”  
Vaccinations, Safer Fed. Workforce; see Guidance on Enforcement of 
Coronavirus Disease 2019 Vaccination Requirement for Federal Employees – 
Executive 
Order 
14043, 
Off. 
of 
Personnel 
Mgmt. 
https://chcoc.gov/sites/default/files/Enforcement-Guidance-
FAQs_508.pdf (similar).  This disciplinary policy would not necessarily 
result in a major adverse action like removal.  At most, the guidance states 
that “consistency across Government in enforcement of this Government-
wide vaccine policy is desired, and the Executive Order does not permit 
exceptions from the vaccination requirement except as required by law.”  
Vaccinations, Safer Fed. Workforce; compare Exec. Order No. 12,564, 
51 Fed. Reg. at 32,889-90 (“Agencies shall initiate action to remove from the 
service any employee who is found to use illegal drugs.” (emphasis added)). 
 
In theory, under the vaccination requirement and the CSRA, agencies 
could circumvent judicial review by only taking minor adverse actions against 
employees who refused vaccination.  This appears to have been agency 
 
Circuit]”).  But since the CSRA likely strips the Federal Circuit of § 1651 jurisdiction, this 
theory is a non-starter. 
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practice.  During the almost two months that passed from the start of 
enforcement to the district court’s injunction, there is no evidence that any 
agency proposed a major adverse action against any noncompliant employee.  
Had the vaccine requirement been allowed to continue, agencies could have 
continued suspending employees for fourteen-day periods without triggering 
the major adverse action process.  Because the requirement’s disciplinary 
policy gives agencies discretion to evade judicial review, and because 
implementation of the policy had that effect, I conclude that CSRA 
preclusion would foreclose all meaningful review.15 
2. 
The plaintiffs’ challenge to the vaccine requirement as exceeding the 
President’s statutory and constitutional authority is not the sort of claim that 
Congress intended to remove from all meaningful judicial review.  
“Congress generally does not violate Article III when it strips federal 
jurisdiction over a class of cases.”  Patchak v. Zinke, 138 S. Ct. 897, 906 (2018) 
(plurality op.).   But there are limits on this jurisdiction-stripping power, at 
least two of which are relevant here.  “Jurisdiction-stripping statutes can 
violate other provisions of the Constitution.”  Patchak, 138 S. Ct. at 906 n.3 
(plurality op.).  And they can violate Article III “if they attempt to direct the 
 
15 The district court found this case ripe in part because “some plaintiffs face an 
inevitable firing.”  Feds for Med. Freedom, 581 F. Supp. 3d at 832.  But the government letter 
upon which the district court relied imposed a fourteen-day suspension and said, “any 
further misconduct . . . will not be tolerated and may result in more severe discipline.”  
Regardless, there is daylight between when an action becomes ripe because of the threat of 
disciplinary action and when a major adverse action is sufficiently certain such that 
meaningful judicial review is not foreclosed.  Of course, it will not always be the case that a 
disciplinary policy that permits but does not require major adverse actions be taken against 
employees will foreclose all meaningful review.  But the language of the guidance and 
patterns of agency enforcement show that preclusion would foreclose review here.  
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result by effectively altering legal standards that Congress is powerless to 
prescribe.”  Id. (quoting Bank Markazi v. Peterson, 578 U.S. 212, 228 (2016)).   
These principles raise serious constitutional doubts about an 
interpretation of the CSRA that would foreclose all federal jurisdiction over 
plaintiffs’ ultra vires claim.  Congress, not the President, has the power to 
define federal court jurisdiction.  See U.S. Const., art. I, § 8 (giving Congress 
the power to “constitute Tribunals inferior to the supreme Court”); id. art. 
III, § 1 (vesting the judicial power “in one supreme Court, and in such 
inferior Courts as the Congress may from time to time ordain and establish”).  
If we read the CSRA as permitting the President to say which of his federal 
employment policies were subject to judicial review—here, by creating a 
disciplinary scheme that might never permit appeal from a personnel 
action—the statute might transfer jurisdictional control from Article I to 
Article II.   
In the usual course of administration under the CSRA, this lurking 
threat of an unconstitutional delegation never surfaces.  See Gundy v. United 
States, 139 S. Ct. 2116, 2123 (2019) (Congress “may not transfer to another 
branch ‘powers which are strictly and exclusively legislative.’” (quoting 
Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825)).  When a covered 
employee violates an employment policy, the Executive Branch merely 
decides whether a particular infraction warrants a major adverse action or 
not.  These discretionary decisions about how to punish employees are a 
lawful exercise of Executive authority “to implement and enforce” the 
CSRA.  Id.  Similarly, the Executive can usually decide that a particular class 
of conduct does not merit a major adverse action as punishment without 
triggering a constitutional question. 
But the threat of an unconstitutional delegation becomes material 
when the Executive uses the CSRA to decide the outcome of a separation-of-
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powers challenge to a federal employment policy.  Whatever power the 
President has to enact those policies comes from Congressional enactments 
and the Constitution, neither of which the President can change himself.  See 
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).  So, by 
designing an employment policy in such a way that the CSRA precludes all 
federal jurisdiction to review a separation-of-powers challenge, the President 
could nullify any limits on his powers set by Article I and Article II.16   
Further, by doing so, he would decide the outcome of this litigation.  I doubt 
that Congress, in enacting the CSRA, intended to give the President control 
of federal jurisdiction so that he might acquire powers that the plaintiffs 
contend have not been given to him by statute or the Constitution. 
In addition, if the CSRA foreclosed all meaningful review over the 
plaintiffs’ ultra vires claim, a serious constitutional question would arise 
about whether Congress had eliminated a mandatory remedy for separation-
 
16 This scenario is a variation on the puzzle that the Supreme Court solved in United 
States v. Klein, 80 U.S. 128 (1872).  There, the plaintiff sought to recover the sale proceeds 
of expropriated property on behalf of an estate under a Civil War law that allowed recovery 
if the owner had “never given any aid or comfort to the present rebellion.”  Bank Markazi, 
578 U.S. at 227 (cleaned up).  The original estate holder had been pardoned by President 
Lincoln, and the Supreme Court had held that a Presidential pardon satisfied the loyalty 
requirement of the expropriation statute.  See United States v. Padelford, 76 U.S. 531, 543 
(1870).  Congress then passed a statute repudiating the Supreme Court’s decision.  The 
statute said that pardons could not be used to prove loyalty, that accepting a pardon under 
certain circumstances would prove disloyalty, and that the Court of Claims and the 
Supreme Court had “to dismiss for want of jurisdiction any claim based on a pardon.”  
Bank Markazi, 578 U.S. at 227.  In Klein, the Supreme Court held that this jurisdiction-
stripping statute “passed the limit which separated the legislative from the judicial power,” 
Klein, 80 U.S. at 147, by seeking “to nullify” “Presidential pardons . . . by withdrawing 
federal-court jurisdiction,” Bank Markazi, 578 U.S. at 227 n.19.  Stated in general terms, 
Congress had impermissibly “exercise[d] its authority . . . to regulate federal jurisdiction 
. . . in a way that require[d] a federal court to act unconstitutionally.” Id. (cleaned up) 
(quoting Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86 Geo. L.J. 
2537, 2549 (1998)).   
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of-powers violations.  There may be some “constitutionally necessary 
remedies for the violation of constitutional rights” that Congress cannot 
preclude through jurisdiction stripping.  Richard H. Fallon, Jr., Jurisdiction-
Stripping Reconsidered, 96 Va. L. Rev. 1043, 1134 (2010).  Injunctive relief 
for Executive Branch actions that exceed the President’s authority may be 
one such remedy.17  See Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 
94, 108 (1902) (“The acts of all [Executive Branch] officers must be justified 
by some law, and in case an official violates the law to the injury of an 
individual the courts generally have jurisdiction to grant relief. . . . Otherwise, 
the individual is left to the absolutely uncontrolled and arbitrary action of a 
public and administrative officer, whose action is unauthorized by any law, 
and is in violation of the rights of the individual.).   
Had Congress foreclosed all meaningful judicial review over 
plaintiffs’ ultra vires claim, we would have to confront these difficult 
constitutional questions today.  But nothing in the CSRA shows that 
Congress meant to preclude federal jurisdiction to adjudicate separation-of-
powers challenges to employment policies set by the President.  An ultra vires 
claim like the plaintiffs’ is therefore within our narrow subject-matter 
jurisdiction and outside the comprehensive CSRA scheme described by the 
Supreme Court in Elgin and Fausto. 
III. 
Because we have jurisdiction over plaintiffs’ challenge to the 
requirement as ultra vires, we next must consider whether the district court 
abused its discretion in granting the plaintiffs’ request for a nationwide 
 
17 The same might be true of individual constitutional claims.  See Webster v. Doe, 
486 U.S. 592, 603 (1988) (“[S]erious constitutional question[s] . . . would arise if a federal 
statute were construed to deny any judicial forum for a colorable constitutional claim.” 
(cleaned up)). 
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preliminary injunction.  See Atchafalaya Basinkeeper v. U.S. Army Corps of 
Eng’rs, 894 F.3d 692, 696 (5th Cir. 2018).  To obtain a preliminary injunction, 
the plaintiffs must establish that they are “likely to succeed on the merits” 
and “likely to suffer irreparable harm in the absence of preliminary relief,” 
“that the balance of the equities tips in [their] favor, and that an injunction is 
in the public interest.”  Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 
(2008).  
For the reasons I offered in my motions panel dissent, see Feds for Med. 
Freedom, 25 F.4th at 356-60, reproduced in relevant part below,18 infra 
Section III.A, the plaintiffs have not shown that they are entitled to a 
preliminary injunction, and a nationwide injunction is inappropriate. 
A. 
Had our court ever given it the chance, the government likely would 
have succeeded in showing that the President has authority to promulgate 
this Executive Order pertaining to the federal executive workforce. 
“Under our Constitution, the ‘executive Power’—all of it—is ‘vested 
in a President,’ who must ‘take Care that the Laws be faithfully executed.’” 
Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) 
(quoting U.S. Const. art. II, § 1, cl. 1; and then quoting id. § 3).  The 
President’s executive power has long been understood to include “general 
administrative control of those executing the laws.”  Id. at 2197-98 (quoting 
Myers v. United States, 272 U.S. 52, 163-64 (1926)).  Accordingly, the 
President “has the right to prescribe the qualifications of [Executive Branch] 
employees and to attach conditions to their employment.”  Friedman v. 
Schwellenbach, 159 F.2d 22, 24 (App. D.C. Cir. 1946); see also Old Dominion 
 
18 I have made some edits to the text. 
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Branch No. 496, Nat’l Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 
264, 273 n.5 (1974) (noting “the President’s responsibility for the efficient 
operation of the Executive Branch”); Crandon v. United States, 494 U.S. 152, 
180 (1990) (Scalia, J., concurring in the judgment) (describing “the 
President’s discretion-laden power” to regulate the Executive Branch under 
5 U.S.C. § 7301); NTEU v. Bush, 891 F.2d 99 (5th Cir. 1989) (upholding 
President Reagan’s executive order authorizing random drug testing of 
certain federal employees).  The President, as head of the federal executive 
workforce, has authority to establish the same immunization requirement 
that many private employers imposed to ensure workplace safety and prevent 
workplace disruptions caused by COVID-19. 
The district court rejected the above argument as “a bridge too far,” 
given “the current state of the law as just recently expressed by the Supreme 
Court” in NFIB v. OSHA, 142 S. Ct. 661 (2022), and Biden v. Missouri, 142 
S. Ct. 647 (2022).  However, the district court misapprehended the single, 
animating principle that all Justices embraced in these decisions.  As Justice 
Gorsuch explained in his NFIB concurrence, “The central question we face 
today is: Who decides?”  142 S. Ct at 667 (Gorsuch, J., concurring).  In NFIB, 
the Court stayed an immunization requirement that unelected agency 
officials imposed on private employers that do not receive federal funding, 
explaining that “[a]dministrative agencies are creatures of statute” and that 
the Occupational Safety and Health Act does not “plainly authorize[] the 
Secretary’s [immunization or testing] requirement.”  142 S. Ct. at 665. 
Comparatively, in Biden v. Missouri, which involved an immunization 
requirement that unelected agency officials imposed on the staff of healthcare 
facilities receiving Medicare and Medicaid funding, the Court concluded that 
“the Secretary’s rule falls within the authorities that Congress has conferred 
upon him.”  142 S. Ct. at 652.  Notably, even the dissenting Justices in that 
case acknowledged that “[v]accine requirements . . . fall squarely within a 
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State’s police power.”  Id. at 658 (Thomas, J., dissenting); see also NFIB v. 
OSHA, 142 S. Ct at 667 (Gorsuch, J., concurring) (“There is no question 
that state and local authorities possess considerable power to regulate public 
health.”).  Thus, in these two cases, the Court gave a consensus answer to 
Justice Gorsuch’s question: it is elected, democratically-accountable 
officials, including members of Congress19 and state legislators,20 who have 
authority to decide—and answer for—the infection-fighting measures that 
they impose, including immunization requirements, such as mandatory 
smallpox vaccination, that our country has utilized for centuries.  See 
Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding the authority of 
states to enforce compulsory vaccination laws); Austin v. U.S. Navy Seals 1-
26, 142 S. Ct. 1301 (2022) (staying district court order preventing Navy from 
considering vaccination status in making operational decisions); Lukaszczyk 
v. Cook Cnty., 47 F.4th 587 (7th Cir. 2022) (upholding state and local vaccine 
 
19 Cf. 8 U.S.C. § 1182(a)(1)(A)(ii) (statutory requirement that any alien “who seeks 
admission as an immigrant” must “receive[] vaccination against vaccine-preventable 
diseases,” including “mumps, measles, rubella, polio, tetanus and diphtheria toxoids, 
pertussis, influenza type B and hepatitis B”). 
20 For example, at least one state governor recently exercised his executive 
authority to permanently require COVID-19 vaccinations for certain state employees.  See 
Off. of Governor Jay Inslee, State of Wash., Directive 22-13.1, COVID-19 Vaccination 
Standards for State Employees (Aug. 5, 2022).  A bill has been introduced in the 
Washington House to permit reemployment for state employees who were dismissed from 
their jobs for failing to get vaccinated.  H.B. 1029, 68th Leg., Reg. Sess. (Wash. 2023).  
Conversely, in Texas, Governor Abbot issued an executive order prohibiting Texas entities 
from requiring employees to get vaccinated and that would terminate when the Texas 
legislature passed legislation “consider[ing] this issue.”  Exec. Dep’t, State of Tex., Exec. 
Order GA 40, Relating to Prohibiting Vaccine Mandates, Subject to Legislative Action 
(Oct. 11, 2021). 
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requirements), cert. denied sub nom., Troogstad v. Chicago, 143 S. Ct. 734 
(2023).21  
The President is not an unelected administrator.  He is instead the 
head of a co-equal branch of government and the most singularly accountable 
elected official in the country.  This federal workplace safety order displaces 
no state police powers and coerces no private sector employers.  Instead, 
consistent with his Article II duty to “take Care that the Laws be faithfully 
executed,” the President performed his role as CEO of the federal 
workforce,22 taking executive action in order to keep open essential 
government buildings;23 to maintain the provision of vital government 
services, such as the Transportation Security Administration; and to prevent 
unvaccinated federal employees from infecting co-workers or members of the 
public who, whether because of age or infirmity, might be highly vulnerable 
to hospitalization and death. 
 
21 Indeed, executive immunization requirements predate the birth of this country, 
with George Washington famously requiring members of the Continental Army to be 
inoculated against smallpox.  See Letter from George Washington to William Shippen, Jr. 
(Feb. 6, 1777), in 8 The Papers of George Washington, Revolutionary 
War Series, 6 January 1777 - 27 March 1777, 264 (Frank E. Grizzard, Jr., ed.) 
(1998) (“Finding the small pox to be spreading much and fearing that no precaution can 
prevent it from running thro’ the whole of our Army, I have determined that the troops 
shall be inoculated.”).  
22 Notably, in a recent survey of nearly 500 employers, the employee benefits 
consultancy Mercer “found 44% with a [vaccine] requirement currently in place and 6% 
planning to implement one, with another 9% still considering it.”  Beth Umland & Mary 
Kay O’Neill, Worksite Vaccine Requirements in the Wake of the OSHA ETS (Jan. 27, 2022), 
https://www.mercer.us/our-thinking/healthcare/worksite-vaccine-requirements-in-the-
wake-of-the-osha-ets.html. 
23 As noted earlier, in contrast to many of the essential services and executive 
agencies that the President oversees, Article III institutions such as this court can close our 
buildings to the public. 
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Federal employees that disagree with the content of Executive Order 
14043 retain the right to claim an exemption, to leave the government’s 
employment, to collectively bargain, to challenge the order through the 
CSRA, or to challenge the order in federal court, as they have done in this 
case.  Of course, any American who disagrees with the content of the order 
has the right to vote the President out of office.  Relatedly, Congress 
rescinded the President’s requirement that members of the Armed Forces 
get vaccinations.  See James M. Inhofe Nat’l Def. Authorization Act for 
Fiscal Year 2023, Pub. L. No. 117-263, § 525 (2022).  Thus, consistent with 
NFIB v. OSHA and Biden v. Missouri, and applying the Supreme Court’s 
methodology for assessing the President’s emergency powers in the absence 
of direct Congressional intervention, see Youngstown, 343 U.S. at 635-38 
(Jackson, J., concurring in the judgment and opinion of the Court); Dames & 
Moore v. Regan, 453 U.S. 654, 669 (1981) (“[E]xecutive action in any 
particular instance falls . . . at some point along a spectrum running from 
explicit congressional authorization to explicit congressional prohibition.  
This is particularly true as respects cases . . . involving responses to 
international crises the nature of which Congress can hardly have been 
expected to anticipate in any detail.”), accountability for the federal 
executive employee immunization requirement is open, obvious, and vested 
in one elected, democratically accountable official.  These cases do not cast 
doubt on, but rather determinatively confirm, the President’s emergency 
power to issue Executive Order No. 14043.  Yet our court refuses to explain 
why the President does not have this power. 
In addition to the issues discussed above, the government is also likely 
to succeed in showing that the plaintiffs have not met their burden for 
obtaining a preliminary injunction.  A plaintiff seeking such an injunction 
must establish, among other requirements, “that he is likely to suffer 
irreparable harm in the absence of preliminary relief.”  Winter, 555 U.S. at 
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20.  However, even if the plaintiffs were to lose their jobs as a result of this 
order, we have explained in a previous case involving “discharge under the 
federal civil service laws” that “[i]t is practically universal jurisprudence in 
labor relations in this country that there is an adequate remedy for individual 
wrongful discharge after the fact of discharge”: “reinstatement and back 
pay.”  Garcia v. United States, 680 F.2d 29, 31-32 (5th Cir. 1982).  The CSRA 
makes this remedy available to the plaintiffs.  See 5 U.S.C. § 7118(a)(7)(C).  
Accordingly, the district court did not show that the plaintiffs are likely to 
suffer irreparable harm in the absence of preliminary relief.  Our court 
rubberstamps the injunction without identifying any irreparable harm, either. 
Finally, even if I were to conclude that the plaintiffs were entitled to 
injunctive relief, I agree with Judge Haynes and would not affirm the district 
court’s grant of a nationwide injunction.24  As our court recently explained, 
nationwide injunctions “can constitute ‘rushed, high-stake, low-information 
decisions,’ while more limited equitable relief can be beneficial.”  Louisiana 
v. Becerra, 20 F.4th 260, 264 (5th Cir. 2021) (quoting Dep’t of Homeland Sec. 
v. New York, 140 S. Ct. 599, 600, (2020) (Gorsuch, J., concurring in the grant 
of a stay)); see Kentucky v. Biden, 57 F.4th 545, 556-57 (6th Cir. 2023) (finding 
district court abused its discretion in extending preliminary injunction of 
vaccine requirement for federal contracts to non-parties); see also Trump v. 
Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring) (observing 
that nationwide injunctions “are beginning to take a toll on the federal court 
system—preventing legal questions from percolating through the federal 
 
24 In this respect, I join Judge Haynes’s separate opinion. 
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courts, encouraging forum shopping, and making every case a national 
emergency for the courts and for the Executive Branch”).25 
Cognizant of the separation of powers, as well as our judicial ignorance 
of the immense task of running the Executive Branch of government, for 
which the President, informed by public health experts, is solely accountable, 
I would not allow an unelected lower court to impose its Article III fiat on 
millions of Article II employees, above all when a dozen other lower courts 
have declined to enjoin the President’s order.  More egregious, our court 
should not have approved this unaccountable exercise of the judicial power 
without explaining why an injunction was warranted in the first place.  
B. 
In affirming the district court’s nationwide injunction, the majority 
defends the scope of the injunction but does not say why the district court 
properly exercised its discretion in granting any injunction at all.  “After 
 
25 The majority argues that a nationwide injunction is permissible because “any 
benefit to outside parties is ‘merely incidental.’”  I fail to understand how this is so.  
Historically, courts of equity “did not provide relief beyond the parties to the case.”  Trump 
v. Hawaii, 138 S. Ct. 2392, 2427 (2018) (Thomas, J., concurring).  Of course, an injunction 
tailored to the parties in a case might sometimes incidentally benefit a nonparty.  For 
example, “injunctions barring public nuisances” might “benefit[] third parties . . . merely 
[as] a consequence of providing relief to the plaintiff,” id., because when a source of water 
or air pollution is enjoined, everyone’s water or air gets cleaner.  But a nationwide 
injunction barring the vaccine requirement is not analogous to an injunction barring a public 
nuisance.  Outside parties to this case who don’t want to get vaccinated are directly shielded 
from federal government enforcement action by the nationwide injunction; they are direct 
“beneficiaries” of the relief granted to plaintiffs, even though they are not plaintiffs.  In 
sum, there is no way to turn upside down Justice Thomas’s skepticism toward nationwide 
injunctions by framing this case as an exception to “historical limits on equity and judicial 
power.”  Id. at 2429 (Thomas, J., concurring).   Rather, by affirming the Executive Order, 
every court excepts ours has respected the President’s decision to protect federal 
employees and the public from the effects of a pandemic disease and respected the principle 
that courts do not make federal policy.  See id. at 2427 (Thomas, J., concurring). 
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carefully considering the district court’s opinion and the Government’s 
criticisms of it, we are unpersuaded that the district court abused its 
discretion.  And we need not repeat the district court’s reasoning, with which 
we substantially agree”—that’s it.  In two sentences and without any 
explanation, after more than a year of government attempts to get our court 
to engage, we limit the President’s authority to protect federal employees 
from a pandemic.  Our perfunctory treatment of this important and difficult 
issue does not reflect a “[d]ue regard for the implications of the distribution 
of powers in our Constitution and for the nature of the judicial process as the 
ultimate authority in interpreting the Constitution.”  Youngstown, 343 U.S. 
at 597 (Frankfurter, J., concurring).  Nor does it meet our basic “obligation 
to say enough that the public can be confident that cases are decided in a 
reasoned way.”  United States v. Handlon, 53 F.4th 348, 353 (5th Cir. 2022); 
see Rita v. United States, 551 U.S. 338, 356 (2007).   
* * * 
This case requires us to determine the powers of the President to 
regulate the Executive Branch workforce—in other words, “to intervene in 
determining where authority lies as between the democratic forces in our 
scheme of government.”  Youngstown, 343 U.S. at 597 (Frankfurter, J., 
concurring).  As Justice Frankfurter warned during another national 
emergency, “we should be wary and humble” in drawing those lines.  Id.  
Contrary to his teachings, our court, asserting that it is right but unable to 
explain why, hastily sketches the President as a diminished figure in our 
system of government.    
I respectfully dissent.  
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Carl E. Stewart, Circuit Judge, joined by Richman, Chief Judge, and 
Dennis and Graves, Circuit Judges, dissenting: 
Respectfully, I dissent from the en banc majority opinion because, as 
the original panel opinion held, the Civil Service Reform Act (“CSRA”), 5 
U.S.C. § 1101 et seq., precludes district court review of challenges to 
Executive Order 14043 (“the Order”). See Feds for Med. Freedom v. Biden 
(“Feds II”), 30 F.4th 503, 511 (5th Cir. 2022). As the Supreme Court 
explained in United States v. Fausto, “the CSRA comprehensively overhauled 
the civil service system, creating an elaborate new framework for evaluating 
adverse personnel actions against [federal employees].” 484 U.S. 439, 443 
(1988) (internal quotation marks and citations omitted). “It prescribes in 
great detail the protections and remedies applicable to such action, including 
the availability of administrative and judicial review.” Id.  
As we explained in Feds II, “[t]he CSRA established ‘the 
comprehensive and exclusive procedures for settling work-related 
controversies between federal civil-service employees and the federal 
government.’” 30 F.4th at 506 (quoting Rollins v. Marsh, 937 F.2d 134, 139 
(5th Cir. 1991)). Prior to the enactment of the CSRA, administrative and 
judicial review under the civil service system was “haphazard,” resulting 
from the “outdated patchwork of statutes and rules built up over almost a 
century.” Fausto, 484 U.S. at 444 (quoting S. Rep. No. 95–969, at 3 
(1978)). This system drew “widespread” criticism, in part because it 
produced inconsistent judicial decisions on similar matters due to the 
“concurrent jurisdiction, under various bases of jurisdiction, of district 
courts in all Circuits and the Court of Claims.” Id. at 445. In response to these 
issues, Congress enacted the CSRA, which imposed “an integrated scheme 
of administrative and judicial review, designed to balance the legitimate 
interests of the various categories of federal employees with the needs of 
sound and efficient administration.” Id. 
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The CSRA provides different procedures for employees facing 
different types of employment actions. Feds II, 30 F.4th at 507 (“The CSRA 
distinguishes between employees facing ‘proposed’ adverse action and those 
who have already suffered an adverse action[.]”). Employees facing 
“proposed” action are entitled to notice, an opportunity to respond, legal 
representation, and written reasons supporting the employing agency’s 
decision. 5 U.S.C. § 7513(b). A Merit Systems Protection Board (“MSPB”) 
appeal, however, is only guaranteed to “employee[s] against whom an action 
is taken.” Feds II, 30 F.4th at 508; § 7513(d). “If the employee prevails on 
appeal, the MSPB can order the agency to comply with its decision and award 
‘reinstatement, backpay, and attorney’s fees.’” Id. at 507; Elgin v. Dep’t of 
Treasury, 567 U.S. 1, 6 (2012) (citing 5 U.S.C. §§ 1204(a)(2), 7701(g)). “‘An 
employee who is dissatisfied with the MSPB’s decision is entitled to judicial 
review in the United States Court of Appeals for the Federal Circuit’ under 
§ 7703.” Id. (quoting Elgin, 567 U.S. at 6). The jurisdiction of the Federal 
Circuit over such appeals is “exclusive.” Id. (citing 28 U.S.C. § 1295(a)(9)). 
Once an employee appeals to the Federal Circuit, that court must “review 
the record and hold unlawful and set aside any agency action, findings, or 
conclusions that are (1) arbitrary, capricious, an abuse of discretion, or 
otherwise not in accordance with law; (2) obtained without procedures 
required by law, rule, or regulation having been followed; or (3) unsupported 
by substantial evidence.” Id. (citing 5 U.S.C. § 7703(c)(1)–(3) (internal 
quotation marks omitted)). This remedial scheme is intricate and as the 
Supreme Court has recognized, “[g]iven the painstaking detail with which 
the CSRA sets out the method for covered employees to obtain review of 
adverse employment actions, it is fairly discernible that Congress intended to 
deny such employees an additional avenue of review in district court.” Id. 
(quoting Elgin, 567 U.S. at 11–12). 
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In Elgin v. Department of Treasury, the Supreme Court addressed an 
attempt by former federal employees to “carve out an exception to CSRA 
exclusivity for facial or as-applied constitutional challenges to federal 
statutes.” 567 U.S. at 12. The Court rejected their attempt, explaining that 
the CSRA’s text and structure demonstrated that “[t]he availability of 
administrative and judicial review under the CSRA generally turns on the 
type of civil service employee and adverse employment action at issue,” not 
whether a challenged action is constitutionally authorized. Id. at 12–13. The 
Court further noted that the CSRA’s purpose, which is to create an 
integrated scheme of review, confirms that “the statutory review scheme is 
exclusive.” Id. at 13. The Court ultimately held that “the CSRA provides the 
exclusive avenue to judicial review when a qualifying employee challenges an 
adverse employment action by arguing that a federal statute is 
unconstitutional.” Id. at 5.  
Relying on this Supreme Court guidance, the Feds II panel majority 
reasoned that this case is “the vehicle by which [the plaintiffs] seek to avoid 
imminent adverse employment action” for not complying with the Order, 
“which is precisely the type of personnel action regularly adjudicated by the 
MSPB and the Federal Circuit within the CSRA scheme.” 30 F.4th at 511 
(citing Elgin, 567 U.S. at 22) (internal quotation marks omitted). The panel 
majority further determined that the plaintiffs’ claims did not exceed the 
MSPB’s expertise. Id. (citing Elgin, 567 U.S. at 22 (recognizing that “many 
threshold questions . . . may accompany a constitutional claim” and “the 
MSPB can apply its expertise” to those questions)).  
A unanimous Fourth Circuit panel agreed with our view that 
“Congress intended for the CSRA to cover [the plaintiffs’] claims” and 
“that the district court lacked jurisdiction” over a challenge to the Order. See 
Rydie v. Biden, No. 21-2359, 2022 WL 1153249, at *3 (4th Cir. Apr. 19, 2022). 
Like the Feds II panel majority, Rydie relied on Elgin to hold that “Congress 
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intended the CSRA to foreclose judicial review in at least some 
circumstances.” Id. at *4. As the Rydie panel observed, courts use the three 
Thunder Basin factors1 to determine whether Congress intended the CSRA 
to foreclose judicial review in certain cases and concluded that the factors 
militated in favor of preclusion. Rydie, 2022 WL 1153249, at *4–7. Both the 
Feds II and Rydie decisions align with those of other courts that have 
considered challenges to the Order since April of last year. See Am. Fed’n of 
Gov’t Emps. Loc. 2018 v. Biden, 598 F. Supp. 3d 241, 248 (E.D. Pa. 2022) 
(“This action will be dismissed in its entirety for lack of subject-matter 
jurisdiction.”); Payne v. Biden, 602 F. Supp. 3d 147, 151 (D.D.C. 2022) 
(“The Court will grant the Government’s Motion because the Civil Service 
Reform Act deprives the Court of subject-matter jurisdiction over this 
workplace dispute involving a covered federal employee.”)2; Am. Fed’n of 
Gov’t Emps. Loc. 2586 v. Biden, No. CIV-21-1130-SLP, 2022 WL 3695297, at 
*4 (W.D. Okla. July 22, 2022) (“[T]he Court finds the CSRA’s scheme is 
detailed, comprehensive and exclusive and it is fairly discernible that 
Congress intended the Civilian Employees’ claims to be encompassed within 
that scheme.”).  
Because I am not persuaded that we should create a split with the 
Fourth Circuit or depart from the sound reasoning of numerous other federal 
 
1 The Thunder Basin factors are: “(1) whether a finding of preclusion could 
foreclose all meaningful judicial review; (2) whether the claims were wholly collateral to a 
statute’s review provisions; and (3) whether the claims were outside the agency’s 
expertise.” See Cochran v. SEC, 20 F.4th 194, 205 (5th Cir. 2021), cert. granted SEC v. 
Cochran, No. 21-1239, 2022 WL 1528373 (U.S. May 16, 2022) (citing Thunder Basin Coal 
Co. v. Reich, 510 U.S. 200, 207 (1994)). 
 
2 The D.C. Circuit has since ruled in the Government’s favor. See Payne v. Biden, -
-- F.4th ---, 2023 WL 2576742 (D.C. Cir. 2023). 
Case: 22-40043      Document: 304-1     Page: 88     Date Filed: 03/23/2023

No. 22-40043 
89 
courts that have since heard similar challenges and reached the same result, 
I would affirm our original holding in Feds II that the CSRA precludes the 
district court’s jurisdiction in this case. See 30 F.4th at 511. 
 
 
 
Case: 22-40043      Document: 304-1     Page: 89     Date Filed: 03/23/2023

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