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U.S. Department of Justice Civil Division, Appellate Staff — Case 22-35474 (04/17/2023)

Summary

A Rule 28(j) letter dated April 17, 2023 in Donovan v. Vance, No. 22-35474 (DktEntry: 41), from the Civil Division, Appellate Staff of the Department of Justice to the Clerk of Court of the Ninth Circuit; the RE line says oral argument is scheduled for May 8, 2023. The letter calls the court's attention to the decision in Payne v. Biden and responds to plaintiffs' letter about the Fifth Circuit's decision in Feds for Medical Freedom v. Biden. It states that in Payne a unanimous panel concluded the Civil Service Reform Act (CSRA) precluded district-court jurisdiction over a challenge to the federal-employee COVID-19 vaccination requirement. It also argues that plaintiffs' challenges fail on standing and ripeness grounds and carries /s/ signature text.

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“U.S. Department of Justice Civil Division, Appellate Staff — Case 22-35474 (04/17/2023).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/22-35474-recap-gov-uscourts-ca9-338712-41-0-54b2b81ba1/, SHA-256 93a8634db51940ce2bac4a35d5db376ac511c0c3dc3e00376edfc67e7e9f01ff.

Full text

      Case: 22-35474, 04/17/2023, ID: 12696358, DktEntry: 41, Page 1 of 2




                                                  U.S. Department of Justice
                                                  Civil Division, Appellate Staff
                                                  950 Pennsylvania Ave. NW
                                                  Washington, DC 20530

                                                                 Tel: (202) 514-3159
                                                  April 17, 2023
Via CM/ECF

Molly Dwyer, Clerk of Court
Office of the Clerk
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119

       RE:    Donovan v. Vance, No. 22-35474 (oral argument scheduled for May
              8, 2023)

Dear Ms. Dwyer:

        I write pursuant to Rule 28(j) to call the Court’s attention to the D.C. Cir-
cuit’s recent decision in Payne v. Biden, 62 F.4th 598 (D.C. Cir. 2023) and to re-
spond to plaintiffs’ letter alerting the court to the Fifth Circuit’s decision in Feds
for Medical Freedom v. Biden, 63 F.4th 366 (5th Cir. 2023) (en banc).

        In Payne, a unanimous panel of the D.C. Circuit held that the Civil Service
Reform Act (CSRA) precluded district-court jurisdiction over a challenge to the
federal-employee COVID-19 vaccination requirement that is also at issue in this
appeal. As plaintiffs note, in Feds for Medical Freedom, a divided en banc court
reached the opposite result, concluding that the CSRA does not bar review in
district court and affirming a district court’s decision granting a nationwide pre-
liminary injunction against enforcement of the same COVID-19 vaccination re-
quirement. Eight members of the Fifth Circuit dissented in whole or in part.

      The government respectfully submits that the D.C. Circuit’s reasoning
and that of the Fourth Circuit in Rydie v. Biden, 2022 WL 1153249 (4th Cir. Apr.
19, 2022), is correct. In any event, plaintiffs’ challenges to the federal employee
vaccination requirement in this case fail on standing and ripeness grounds that
      Case: 22-35474, 04/17/2023, ID: 12696358, DktEntry: 41, Page 2 of 2




were not presented in Feds for Medical Freedom. See, e.g., Gov’t Br. 21-27 (explain-
ing that none of the eight federal employee plaintiffs faces an actual or immi-
nent injury from the vaccination requirement).

                                            Sincerely,

                                            /s/ Anna O. Mohan
                                            Anna O. Mohan
                                            U.S. Department of Justice
                                            Appellate Staff, Civil Division

cc:    All counsel (via CM/ECF)

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