Counsel For v. Biden Brief For Appellees
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The Brief for Appellees in Feds for Medical Freedom v. Biden, No. 22-40043, in the United States Court of Appeals for the Fifth Circuit, on appeal from the U.S. District Court for the Southern District of Texas, dated February 16, 2022. It is filed by Boyden Gray & Associates as counsel for the plaintiffs-appellees, including Feds for Medical Freedom, Local 918, American Federation of Government Employees, and Highland Engineering, Inc. The brief argues that the district court correctly held the President lacks authority to issue the mandate, that the government's CSRA preclusion theory fails, and that agencies' implementation violates the APA. It also defends the findings on irreparable harm, the balance of harms and broad relief, and asks the court to affirm the preliminary injunction. The brief notes oral argument set for March 8, 2022 and certifies a length of 12,952 words.
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No. 22-40043
________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________________________
FEDS FOR MEDICAL FREEDOM; LOCAL 918, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES; HIGHLAND
ENGINEERING, INCORPORATED; RAYMOND A. BEEBE, JR.;
JOHN ARMBRUST; et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, JR., in his official capacity as President of the
United States; THE UNITED STATES OF AMERICA; PETE
BUTTIGIEG, in his official capacity as Secretary of Transportation;
DEPARTMENT OF TRANSPORTATION; JANET YELLEN, in her
official capacity as Secretary of Treasury; et al.,
Defendants-Appellants.
________________________________________
On Appeal from the U.S. District Court
for the Southern District of Texas
________________________________________
BRIEF FOR APPELLEES
________________________________________
C. Boyden Gray
R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
Jared M. Kelson
BOYDEN GRAY & ASSOCIATES
801 17th Street NW., Suite 350
Washington, DC 20006
202-706-5488
mccotter@boydengrayassociates.com
Counsel for Plaintiffs-Appellees
CERTIFICATE OF INTERESTED PERSONS
Feds for Medical Freedom v. Biden
No. 22-40043
The undersigned counsel of record certifies that the following listed
persons and entities as described in the fourth sentence of Fifth Circuit
Local Rule 28.2.1 have an interest in the outcome of this case. These
representations are made in order that the judges of this Court may
evaluate possible disqualification or recusal.
1. Highland Engineering, Inc., is a Plaintiff-Appellee. It has no parent
corporation, and no publicly held corporation owns 10% or more of
its stock.
2. Local 918, American Federation of Government Employees, is a
Plaintiff-Appellee. It has no parent corporation, and no publicly
held corporation owns 10% or more of its stock.
3. Feds for Medical Freedom, a/k/a Feds 4 Med Freedom, is a Plaintiff-
Appellee. It has no parent corporation, and no publicly held
corporation owns 10% or more of its stock.
4. Members of Feds for Medical Freedom are interested parties. Feds
for Medical Freedom has over 6000 members. See L.R. 28.2.2 (“If a
i
large group of persons or firms can be specified by a generic
description, individual listing is not necessary.”).
The following are individual named Plaintiffs-Appellees:
5. John Armbrust
6. N. Anne Atkinson
7. Julia Badger
8. Michael Ball
9. Raymond A. Beebe, Jr.
10. Craigan Biggs
11. Laura Brunstetter
12. Mark Canales
13. Michele Caramenico
14. Andrew Chamberland
15. David Clark
16. Diane Countryman
17. Kevin Dantuma
18. Jose Delgado
19. Jordan DeManss
20. George Demetriou
ii
21. Keri Divilbiss
22. Mercer Dunn IV
23. William Filkins
24. Jonathan Gragg
25. Bryon Green
26. Thomas David Green
27. Erika Hebert
28. Peter Hennemann
29. Neil Horn
30. Carey Hunter-Andrews
31. Tana Johnston
32. Tyler Klosterman
33. Deborah Lawson
34. Dan Lewis
35. Melissa Magill
36. Kendra Ann Marceau
37. Dalia Matos
38. Stephen May
39. Steven McComis
iii
40. Christopher Miller
41. Joshua Moore
42. Brent Moores
43. Jesse Neugebauer
44. Joshua Nicely
45. Leslie Carl Petersen
46. Patti Rivera
47. Joshua Roberts
48. Ashley Rodman
49. M. LeeAnne Rucker-Reed
50. Trevor Rutledge
51. Nevada Ryan
52. James Charles Sams III
53. Michael Schaecher
54. Christina Schaff
55. Kurtis Simpson
56. Barrett Smith
57. Jaci ReNee Smith
58. Jarod Smith
iv
59. Jana Spruce
60. John Tordai
61. Sandor Vigh
62. Christine Vrtaric
63. Pamela Weichel
64. David Wentz
65. Jason Wilkerson
66. Patrick Wright
67. Patrick Mendoza York
The following are individual named Defendants-Appellants:
68. Kiran Ahuja, in her official capacities as Director of the Office of
Personnel Management and Co-Chair of Safer Federal Workforce
Task Force
69. Lloyd J. Austin III, in his official capacity as Secretary of Defense
70. Joseph R. Biden, Jr., in his official capacity as President of the
United States
71. Antony Blinken, in his official capacity as Secretary of State
72. Matthew C. Blum, in his official capacity as Federal Acquisition
Regulatory Council member
v
73. William J. Burns, in his official capacity as Director of the Central
Intelligence Agency
74. Pete Buttigieg, in his official capacity as Secretary of
Transportation
75. Robin Carnahan, in her official capacities as Administrator of the
General Services Administration and Co-Chair of Safer Federal
Workforce Task Force
76. Leslie A. Field, in her official capacity as Federal Acquisition
Regulatory Council member
77. Marcia Fudge, in her official capacity as Secretary of Housing and
Urban Development
78. Merrick B. Garland, in his official capacity as Attorney General
79. Jennifer M. Granholm, in her official capacity as Secretary of
Energy
80. Deb Haaland, in her official capacity as Secretary of Interior
81. Avril Haines, in her official capacity as Director of National
Intelligence
82. Daniel Hokanson, in his official capacity as Chief of the National
Guard Bureau
vi
83. Karla S. Jackson, in her official capacity as Federal Acquisition
Regulatory Council member
84. Kilolo Kijakazi, in her official capacity as Acting Commissioner of
Social Security
85. Jeffrey A. Koses, in his official capacity as Federal Acquisition
Regulatory Council member
86. Alejandro Mayorkas, in his official capacity as Secretary of
Homeland Security
87. Denis McDonough, in his official capacity as Secretary of Veterans
Affairs
88. Bill Nelson, in his official capacity as Administrator of the National
Aeronautics and Space Administration
89. Samantha Power, in her official capacity as Administrator of the
United States Agency for International Development
90. Gina M. Raimondo, in her official capacity as Secretary of
Commerce
91. John M. Tenaglia, in his official capacity as Federal Acquisition
Regulatory Council member
92. Tom Vilsack, in his official capacity as Secretary of Agriculture
vii
93. Marty Walsh, in his official capacity as Secretary of Labor
94. Janet Yellen, in her official capacity as Secretary of Treasury
95. Shalanda D. Young, in her official capacity as Acting Director of the
Office of Management and Budget
96. Jeffrey Zients, in his official capacity as co-chair of the Safer
Federal Workforce Task Force
The following government entities are Defendant-Appellants:
97. Central Intelligence Agency
98. Department of Agriculture
99. Department of Commerce
100. Department of Defense
101. Department of Energy
102. Department of Homeland Security
103. Department of Housing and Urban Development
104. Department of Interior
105. Department of Justice
106. Department of Labor
107. Department of State
108. Department of Transportation
viii
109. Department of Treasury
110. Department of Veterans Affairs
111. Federal Acquisition Regulatory Council
112. General Services Administration
113. National Aeronautics and Space Administration
114. National Guard Bureau
115. Office of Management and Budget
116. Office of Personnel Management
117. Office of the Director of National Intelligence
118. Safer Federal Workforce Task Force
119. Social Security Administration
120. The United States of America
121. United States Agency for International Development
The following are counsel in the case:
122. Boyden Gray & Associates PLLC: C. Boyden Gray, R. Trent
McCotter, Jonathan Berry, Michael Buschbacher, and Jared M.
Kelson are counsel for Plaintiffs-Appellees.
123. U.S. Department of Justice: Brian M. Boynton, Sarah Wendy
Carroll, Marleigh D. Dover, Brit Featherston, James Gillingham,
ix
Sarah E. Harrington, Casen Ross, Charles W. Scarborough, and
Lowell V. Sturgill Jr. are counsel for Defendants-Appellants.
Dated: February 16, 2022 /s/ R. Trent McCotter
R. Trent McCotter
Counsel of Record for Petitioner
x
STATEMENT REGARDING ORAL ARGUMENT
The Court has set this matter for oral argument on March 8, 2022.
xi
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ......................................... i
STATEMENT REGARDING ORAL ARGUMENT ................................. xi
TABLE OF CONTENTS ......................................................................... xii
TABLE OF AUTHORITIES ................................................................... xiv
INTRODUCTION ...................................................................................... 1
STATEMENT OF JURISDICTION .......................................................... 8
STATEMENT OF THE ISSUES ............................................................... 8
STATEMENT OF THE CASE .................................................................. 9
I. Factual Background. ............................................................... 9
II. District Court Proceedings. ................................................... 10
SUMMARY OF THE ARGUMENT ........................................................ 11
STANDARD OF REVIEW....................................................................... 13
ARGUMENT ........................................................................................... 14
I. The District Court Correctly Held That The President
Lacks Authority to Issue the Mandate. ................................ 14
A. The Government’s CSRA Theory Is Precluded by
Forty Years of Precedent. ............................................ 15
1. Binding Precedent Holds that the CSRA Does
Not Preclude Plaintiffs’ Claims. .............................. 16
2. Conducting the Preclusion Analysis Anew Yields
the Same Result....................................................... 23
xii
B. The District Court Correctly Held that the Mandate
Is Ultra Vires. .............................................................. 31
1. The President Lacks Statutory Power to Issue
the Mandate. ............................................................ 31
2. Several Clear-Statement Doctrines Confirm the
Lack of Statutory Authority. ................................... 40
3. The President Lacks Inherent Article II Power to
Issue the Mandate. .................................................. 44
C. Agencies’ Implementation of the Mandate Violates
the APA. ....................................................................... 47
1. Lack of Reasoned Decisionmaking. ......................... 50
2. Agencies’ Implementations Are Inconsistent,
Illogical, and Contrived. .......................................... 53
II. The District Court Did Not Abuse Its Discretion in
Finding that Plaintiffs Face Imminent, Irreparable Harm. 55
III. The District Court Did Not Abuse Its Discretion in
Finding that the Public Interest and Balance of Harms
Favor Plaintiffs. .................................................................... 60
IV. The District Court Did Not Abuse Its Discretion in
Finding that Broad Relief Is Appropriate. ........................... 65
CONCLUSION ........................................................................................ 69
CERTIFICATE OF COMPLIANCE ........................................................ 70
CERTIFICATE OF SERVICE................................................................. 71
xiii
TABLE OF AUTHORITIES
Page(s)
CASES
Adams v. Woods, 6 U.S. (2 Cranch) 336 (1805) ...................................... 33
Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021) .......... 39, 41, 59, 63
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935) .................................................................................................... 4
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998) ...... 50
Altschuld v. Raimondo, No. 1:21-cv-2779, 2021 WL 6113563
(D.D.C. Nov. 8, 2021) ......................................................................... 15
AFGE v. Biden, No. 1:21-cv-23828 (S.D. Fla. Dec. 22, 2021) ................ 15
AFGE v. FLRA, 794 F.2d 1013 (5th Cir. 1986)....................................... 17
AFGE v. Sec’y of the Air Force, 716 F.3d 633 (D.C. Cir. 2013) .............. 22
AFGE v. Trump, 929 F.3d 748 (D.C. Cir. 2019) ..................................... 22
Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) ............ 64
Arnett v. Kennedy, 416 U.S. 134 (1974) .................................................. 59
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897
(5th Cir. 1983) .................................................................................... 47
Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. 1980) ............................ 48
Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d 624
(4th Cir. 2018) ..................................................................................... 26
Biden v. Missouri, 142 S. Ct. 647 (2022) ................................................ 54
Broadway v. Block, 694 F.2d 979 (5th Cir. 1982) .................................. 19
xiv
BST Holdings, LLC v. OSHA, 17 F.4th 604
(5th Cir. 2021) ..................................... 15, 27, 40, 41, 43, 44, 54, 55, 60
Burgess v. FDIC, 871 F.3d 297 (5th Cir. 2017)................................. 55, 57
Califano v. Yamasaki, 442 U.S. 682 (1979) ............................................ 65
Chamber of Com. of U.S. v. Reich, 74 F.3d 1322
(D.C. Cir. 1996) ...................................................................... 30, 31, 47
Church v. Biden, No. 1:21-cv-2815, 2021 WL 5179215
(D.D.C. Nov. 8, 2021) .......................................................................... 15
Cochran v. SEC, 20 F.4th 194 (5th Cir. 2021) ....................... 6, 21, 23–30
Coliseum Square Ass’n v. Jackson, 465 F.3d 215 (5th Cir. 2006) .......... 47
Dep’t of Com. v. New York, 139 S. Ct. 2551 (2019) ................................. 54
DHS v. Regents of the Univ. of California, 140 S. Ct. 1891
(2020) ...................................................................................... 39, 47, 53
E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021) ..... 47
Elgin v. Treasury, 567 U.S. 1 (2012) ...................................... 6, 21, 25, 29
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ................... 51
FDIC v. Nelson, 19 F.3d 15 (5th Cir. 1994) ............................................ 68
FLEOA v. Cabaniss, No. 1:19-cv-735, 2019 WL 5697168
(D.D.C. Nov. 4, 2019) .......................................................................... 22
FLEOA v. Rigas, No. 1:19-cv-735, 2020 WL 4903843
(D.D.C. Aug. 20, 2020) ........................................................................ 20
Foley v. Biden, No. 4:-21-cv-1098 (N.D. Tex. Oct. 6, 2021) ..................... 15
Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005) ..................................... 19
Gahagan v. USCIS, 911 F.3d 298 (5th Cir. 2018) ................................. 23
xv
Garcia v. United States, 680 F.2d 29 (5th Cir. 1982) ............................ 19
Georgia v. Biden, No. 1:21-cv-163, ___ F. Supp. 3d ___,
2021 WL 5779939 (S.D. Ga. Dec. 7, 2021).................................... 63, 67
Gonzalez v. Manjarrez, 558 F. App’x 350 (5th Cir. 2014)....................... 19
Greiner v. United States, 900 F.3d 700 (5th Cir. 2018) .......................... 19
Gundy v. United States, 139 S. Ct. 2116 (2019) ............................... 42, 43
Humana, Inc. v. Avram A. Jacobson, M.D., 804 F.2d 1390
(5th Cir. 1986) .................................................................................... 55
Humphrey’s Executor v. United States, 295 U.S. 602 (1935).................. 45
In re MCP No. 165, 20 F.4th 264 (6th Cir. 2021) ....................... 42, 44, 45
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607
(1980) .................................................................................................. 43
Kentucky v. Biden, 23 F.4th 585 (6th Cir. 2022) .............. 5, 38, 40, 44, 46
Kreschollek v. S. Stevedoring Co., 78 F.3d 868 (3d Cir. 1996) ............... 27
League of Women Voters of United States v. Newby, 838 F.3d 1
(D.C. Cir. 2016) .................................................................................. 66
Louisiana v. Becerra, No. 3:21-cv-03970 (W.D. La.), appealed,
No. 21-30734 (5th Cir.) ...................................................................... 63
Louisiana v. Becerra, 20 F.4th 260 (5th Cir. 2021) ......................... 67, 68
McAuliffe v. McGovern, No. CIV. SA-89-CA-0028, 1991 WL 352482
(W.D. Tex. July 23, 1991) ................................................................... 19
McAuliffe v. Rice, 966 F.2d 979 (5th Cir. 1992) ..................................... 19
McCray v. Biden, No. 1:21-cv-2882, 2021 WL 5823801
(D.D.C. Dec. 7, 2021) ........................................................................... 15
xvi
Missouri v. Biden, No. 4:21-cv-01329-MTS, 2021 WL 5564501
(E.D. Mo. Nov. 29, 2021) .............................................................. 51, 52
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29 (1983) ....................................................................... 50
Morrison v. Olson, 487 U.S. 654 (1988) ................................................. 15
Myers v. United States, 272 U.S. 52 (1926) ........................................ 5, 45
NFFE v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987) .............................. 18
NFIB v. Dep’t of Labor, 142 S. Ct. 661 (2022) .....1, 3, 4, 31, 35, 38, 39, 41
NTEU v. Bush, 891 F.2d 99 (5th Cir. 1989) ..................................... 17, 26
NTEU v. Devine, 733 F.2d 114 (D.C. Cir. 1984) .............................. 16, 19
NTEU v. Horner, 854 F.2d 490 (D.C. Cir. 1988)..................................... 19
NTEU v. Von Raab, 489 U.S. 656 (1989) ................................................ 17
NTEU v. Whipple, 636 F. Supp. 2d 63 (D.D.C. 2009) ...................... 20, 29
OCONUS DOD Emp. Rotation Action Grp. v. Cohen, 144 F. Supp.
2d 1 (D.D.C. 2000) ............................................................................... 20
Oklahoma v. Biden, No. 21-cv-1136, 2021 WL 6126230
(W.D. Okla. Dec. 28, 2021) ................................................................. 15
Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935)....................................... 43
Rodden v. Fauci, No. 3:21-CV-317, 2021 WL 5545234
(S.D. Tex. Nov. 27, 2021) ................................................................... 15
Rollins v. Marsh, 937 F.2d 134 (5th Cir. 1991) ...................................... 19
Rupcich v. United Food & Com. Workers Int’l Union, 833 F.3d 847
(7th Cir. 2016) ..................................................................................... 51
Sambrano v. United Airlines, Inc., 19 F.4th 839 (5th Cir. 2021) ........... 58
xvii
Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) .................................... 44
Sloan v. HUD, 231 F.3d 10 (D.C. Cir. 2000) ........................................... 48
Solid Waste Agency v. U.S. Army Corps of Eng’rs, 531 U.S. 159
(2001) .................................................................................................. 41
Texas v. Becerra, No. 2:21-CV-229, ___ F. Supp. 3d ___,
2021 WL 5964687 (N.D. Tex. Dec. 16, 2021) ............................... 50, 51
Texas v. Biden, 20 F.4th 928 (5th Cir. 2021) .......................................... 55
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ................. 23, 25, 64
Topletz v. Skinner, 7 F.4th 284 (5th Cir. 2021) ...................................... 13
United States v. Fausto, 484 U.S. 439 (1988) ......................................... 19
U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO,
413 U.S. 548 (1973) ............................................................................. 37
Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047 (5th Cir. 1997)............. 57
Wages & White Lion Invs., L.L.C. v. FDA, 16 F.4th 1130
(5th Cir. 2021) ..................................................................................... 50
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001). ....................... 2, 5
PUBLIC LAWS AND U.S. CODE
5 U.S.C. § 701 ............................................................................................ 7
5 U.S.C. § 2302 ........................................................................................ 25
5 U.S.C. § 3301 ........................................................................................ 32
5 U.S.C. § 3302 ............................................................................ 18, 32, 33
5 U.S.C. § 7301 ....................................................................................... 34
5 U.S.C. § 7513 ....................................................................................... 36
xviii
8 U.S.C. § 1182 ....................................................................................... 41
28 U.S.C. § 1292 ........................................................................................ 7
28 U.S.C. § 1331 .................................................................................. 7, 23
28 U.S.C. §1346 ......................................................................................... 7
28 U.S.C. § 1361 ........................................................................................ 7
28 U.S.C. § 2201 ........................................................................................ 7
29 U.S.C. § 651 ........................................................................................ 35
40 U.S.C. § 101 ....................................................................................... 32
Civil Service Act of 1883, c. 27, 22 Stat. 403 .......................................... 37
Hatch Act, Pub. L. No. 76-252, 53 Stat. 1147 (1939).............................. 37
REGULATORY MATERIALS AND EXECUTIVE ORDERS
Executive Order 10096 ............................................................................ 36
Executive Order 11491 ............................................................................ 36
Executive Order 12674 ............................................................................ 36
Executive Order 14043 ........................................................................ 9, 35
15 Fed. Reg. 389 (Jan. 25, 1950) ............................................................ 36
34 Fed. Reg. 17,605 (Oct. 31, 1969) ........................................................ 36
54 Fed. Reg. 15,159 (Apr. 14, 1989) ....................................................... 37
62 Fed. Reg. 43,451 (Aug. 9, 1997).......................................................... 35
77 Fed. Reg. 24,339 (Apr. 18, 2012) ........................................................ 35
86 Fed. Reg. 50,989 (Sept. 9, 2021) .............................................. 9, 47, 49
xix
86 Fed. Reg. 61,402 (Nov. 5, 2021) ............................................. 51, 52, 53
MISCELLANEOUS
Alex Gangitano & Morgan Chalfant, Federal Agencies Prepare to
Act Against Unvaccinated Employees, THE HILL,
https://thehill.com/homenews/administration/588836-federal-
agencies-prepare-to-act-against-unvaccinated-employees (Jan.
9, 2022) .......................................................................................... 58, 61
Department of State circular of March 20, 1841, reprinted in U.S.
Civil Serv. Comm’n, History of the Federal Civil Service: 1789 to
the Present (1941) ............................................................................... 37
Noah Higgins-Dunn, Dr. Fauci Warns the U.S. Will See a ‘Surge
Upon a Surge’ of Covid Cases Following the Holidays, CNBC
(Dec. 1, 2020), https://www.cnbc.com/2020/12/01/dr-fauci-warns-
the-us-will-see-a-surge-upon-a-surge-of-covid-cases-following-
the-holidays.html. ............................................................................... 62
Eric Katz, Some Agencies Report 100% Vaccine Mandate
Compliance As Others Begin Suspensions, GOV. EXEC.,
https://www.govexec.com/workforce/2022/01/some-agencies-
report-100-vaccine-mandate-compliance-others-begin-
suspensions/360630/ (Jan. 11, 2022) .................................................. 61
Press Briefing, WHITE HOUSE (Jan. 21, 2022),
https://www.whitehouse.gov/briefing-room/press-briefings/
2022/01/21/press-briefing-by-press-secretary-jen-psaki-january-
21-2022/ .............................................................................................. 61
COVID-19 Cases and Hospitalizations by COVID-19 Vaccination
Status and Previous COVID-19 Diagnosis — California and
New York, May–November 2021, https://tinyurl.com/2p8t6j99 ......... 52
Task Force, COVID-19 Workplace Safety: Agency Model Safety
Principles (Sept. 13, 2021) .................................................................... 9
Task Force, FAQ ........................................................................................ 9
xx
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
(1969)................................................................................................... 34
WEBSTER’S AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE
(1838) .................................................................................................. 34
xxi
INTRODUCTION
The District Court did not abuse its discretion by enjoining
enforcement of the President’s unilateral and unprecedented executive
order requiring millions of federal employees to undergo a permanent
and irreversible medical procedure to keep their jobs (“the Mandate” or
“EO14043”).
As the District Court held, “this case is not about whether folks
should get vaccinated against COVID-19,” nor is it about “the federal
government’s power, exercised properly, to mandate vaccination of its
employees.” ROA.1751. Indeed, employees remain free to get vaccinated
voluntarily. Rather, this case is about “whether the President can, with
the stroke of a pen and without the input of Congress, require millions of
federal employees to undergo a medical procedure as a condition of their
employment.” ROA.1752. “That, under the current state of the law as just
recently expressed by the Supreme Court, is a bridge too far.” ROA.1752.
Thus, the “question before us is not how to respond to the pandemic,
but who holds the power to do so.” NFIB v. Dep’t of Labor, 142 S. Ct. 661,
670 (2022) (Gorsuch, J., concurring). It is therefore this Court’s
constitutional responsibility to determine “who decides” whether to
1
impose a vaccine mandate on the entire federal workforce: is it Congress
acting through bicameralism and presentment, or is it the President
acting unilaterally? Under the current law as established by the Supreme
Court, Congress—not the President with “a stroke of a pen”—is
empowered to make such a momentous decision. Whether Congress has
actually given the President that power is a prototypical “question for the
courts.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 473 (2001). But
Congress did not authorize the Mandate, which is therefore ultra vires.
The government portrays the District Judge as overly eager to
grant an injunction. But the very same Judge previously denied a motion
for a preliminary injunction against the Mandate in a different case and
carefully weighed the relevant considerations here before reaching a
decision. The government also invokes the fact that other judges have
denied preliminary relief, but those cases featured basic foot-faults like
suing the wrong defendants. The District Court here is the first to
carefully analyze the key issues raised by the Mandate.
The President is not the CEO of a private company. His powers, like
those of the entire federal government, are limited and enumerated. He
has not been empowered to mandate permanent and irreversible medical
2
procedures for every civilian employee. In the Civil Service Reform Act
(“CSRA”), Congress authorized the President to issue rules regarding
employees’ “conduct” in “the executive branch,” but requiring a
permanent and irreversible medical procedure is not regulating conduct
at all, rather it is regulating status and public health.
Moreover, as the District Court correctly held, even if the Mandate
were regulating conduct, the President’s power stretches only to
workplace conduct, and—as the Supreme Court just held in NFIB v.
Department of Labor—mandating that every employee be permanently
vaccinated is not a regulation of the workplace. “This is no everyday
exercise of federal power. It is instead a significant encroachment into
the lives—and health—of a vast number of employees.” 142 S. Ct. at 665
(cleaned up). The Mandate is not regulation of federal employees qua
employees, rather it is a general health and safety measure, issued
without clear authority from Congress. The government is therefore
wrong to assert that the Mandate has only “incidental effect on, or
connection to, off-duty conduct.” Gov.Br.34.
Even if there were some ambiguity about the President’s power to
regulate “conduct,” several clear-statement canons confirm that the
3
President lacks the unusual power of broadly mandating vaccines—an
act the Supreme Court has already held is subject to the major-questions
doctrine, and which this Court has held is a traditional State function—
absent clear authority from Congress. In other statutes, Congress has
provided clear authority to impose vaccine mandates for certain
individuals. But no such clear authorization exists for federal civilian
employees.
The weakness of the government’s argument is confirmed by the
fact that it has been unable to cite any prior example in the Nation’s
nearly 250-year history where a President ordered civilian employees to
undergo a medical procedure of any kind, let alone a permanent and
irreversible procedure mandated for every civilian employee. “This lack
of historical precedent, coupled with the breadth of authority that the
[President] now claims, is a telling indication that the mandate extends
beyond the [executive branch’s] legitimate reach” and would require clear
authorization from Congress. NFIB, 142 S. Ct. at 666 (internal quotation
marks omitted).
The government’s back-up argument is that the President has
inherent Article II power to mandate permanent and irreversible medical
4
procedures for all federal employees. But the government never claims
the CSRA is unconstitutional, meaning the government cannot invoke
inherent Article II power over line-level federal civilian employees
outside the bounds of that statute. The government’s interpretation
would render superfluous the many statutory provisions carefully
defining the President’s control over the civil service. In addition,
Plaintiffs are employees, not Officers of the United States who serve at
the pleasure of the President, and vaccination status certainly does not
interfere with the President’s ability to direct the execution of federal
laws.
The government has never disputed that if its interpretation were
adopted, the President could dictate even the minutiae of private life and
require permanent and irreversible procedures—so long as it could be
labeled “conduct.” As the Sixth Circuit held, there is no “logical stopping
point” to the government’s theory, which would amount to “a de facto
police power [of] the President.” Kentucky v. Biden, 23 F.4th 585, 608 (6th
Cir. 2022). The government claims to have found the largest of elephants
in the smallest of mouseholes. Whitman, 531 U.S. at 468.
5
It is thus unsurprising that the government seeks to avoid this
Court’s consideration of the merits by claiming that review is precluded
by the CSRA, which funnels individual challenges to past employment
actions through an administrative scheme. The government claims the
CSRA applies to Plaintiffs’ facial, pre-enforcement challenges to an
executive order, even though Plaintiffs expressly disclaim any individual
employment claims and do not seek any employment relief like backpay
or reinstatement. Numerous decisions, including ones binding this Court,
over the last forty years have rejected the government’s theory. There is
no merit to the government’s claim that these cases were silently
overruled by the Supreme Court’s decision in Elgin v. Treasury, 567 U.S.
1 (2012), which featured vastly different claims. Anyway, the
government’s theory that Elgin effected a sea change in preclusion is
foreclosed by this Court’s recent en banc decision holding that Elgin “did
not break new ground.” Cochran v. SEC, 20 F.4th 194, 206 (5th Cir. 2021)
(en banc).
The District Court also properly found—in a decision reviewed only
for abuse of discretion—that Plaintiffs had demonstrated imminent and
irreparable injury under this Court’s precedents, which hold that putting
6
employees to the unique Hobson’s choice of “their job(s) or their jab(s)” is
an irreparable harm.
As for the scope of the injunction, the District Court concluded that
this case presents unique facts that warrant broad relief. In particular,
lead Plaintiff Feds for Medical Freedom (“F4MF”) is a membership
association with over 6,000 members and growing—including 1,500 who
have contributed financially to the group and nearly 1,000 who have
contributed to this specific litigation (averaging over $300 per person).
Those members work in every single State and for nearly every agency.
Only a clear rule would suffice to ensure that all of those members receive
the relief to which they are entitled. That reality is confirmed by the
government’s constant bungling during this case, including repeatedly
breaking promises not to target certain members and reversing course as
to whether employees would be suspended or fired.
For all these reasons, and as further explained in the District
Court’s order, Plaintiffs’ motion briefing, and the briefing below, this
Court should affirm the District Court’s injunction, under which federal
employees remain free to get vaccinated voluntarily.
7
STATEMENT OF JURISDICTION
The District Court had jurisdiction under 5 U.S.C. §§ 701–706, and
28 U.S.C. §§ 1331, 1346, 1361, 2201, under the United States
Constitution, and pursuant to the Court’s equitable powers. The district
court entered a preliminary injunction on January 21, 2022, and this
Court has jurisdiction under 28 U.S.C. § 1292(a)(1).
STATEMENT OF THE ISSUES
(1) Whether the District Court correctly rejected the government’s
theory that the Civil Service Reform Act strips district courts of
jurisdiction over facial, pre-enforcement challenges that seek no
employment relief and do not challenge individualized
employment actions.
(2) Whether the District Court correctly held that the President’s
unprecedented and unilateral act of mandating that millions of
civilian employees undergo a permanent and irreversible
medical procedure to keep their jobs was unsupported by
statutory and constitutional authority.
8
(3) Whether the District Court abused its discretion by following
this Court’s precedents in finding that Plaintiffs demonstrated
irreparable and imminent injury.
(4) Whether the District Court abused its discretion by finding that
the unique facts of this case warrant broad injunctive relief.
STATEMENT OF THE CASE
I. FACTUAL BACKGROUND.
On September 9, 2021, President Biden issued Executive Order
14043, which states that “it is necessary to require COVID-19 vaccination
for all Federal employees, subject to such exceptions as required by law.”
86 Fed. Reg. 50,989 (Sept. 9, 2021). On September 13, 2021, the Safer
Federal Workforce Task Force (“Task Force”) issued a guidance
document, recommending a deadline of November 22, 2021, for all federal
employees to be fully vaccinated. Task Force, COVID-19 Workplace
Safety: Agency Model Safety Principles 2 (Sept. 13, 2021), ROA.788.
In a subsequent “FAQ,” the Task Force stated that “[e]mployees
who are on maximum telework or working remotely are not excused from
this requirement,” nor are employees with natural antibodies. ROA.799.
It continued that employees who fail to comply by November 22, 2021,
9
“are in violation of a lawful order” and subject to discipline, “up to and
including termination or removal.” ROA.810.
Defendant agencies acknowledge they have adopted policies
requiring vaccines pursuant to EO14043. See ROA.1560–94.
II. DISTRICT COURT PROCEEDINGS.
Lead Plaintiff F4MF has over 6,000 registered members, who
respectively work in every State and for almost every federal agency.
ROA.1193. Many are federal employees with no pending Mandate
exemption requests and who have already been threatened with
imminent discipline unless they give in and get vaccinated against their
will. See, e.g., ROA.1195; ROA.1204; ROA.1206; ROA.1212; ROA.1216;
ROA.1229; ROA.1232; ROA.1242; ROA.1244; ROA.1486; ROA.1493;
ROA.1745. Over 1,500 F4MF members have contributed financially to
the organization, including nearly 1,000 members who contributed
financially to this litigation (averaging over $300 per person).
Pls.Addend.1.1 Plaintiff Local 918 is also a membership group
representing certain DHS employees. ROA.74.
1 This affidavit was included in the Addendum to Plaintiffs’ Opposition
to Emergency Motion for Stay Pending Appeal in this Court.
10
Plaintiffs filed suit on December 21, 2021, and moved for a
preliminary injunction the next day, arguing the Mandate is ultra vires
and that Defendants’ implementation of the Mandate is arbitrary and
capricious under the Administrative Procedure Act. Plaintiffs repeatedly
and expressly stated that they “do not challenge any individual
employment decision in this suit” and do not seek employment relief.
ROA.75; ROA.76; ROA.118; ROA.138.
On January 21, 2021, the District Court enjoined enforcement and
implementation of EO14043 because it is ultra vires. ROA.1751. The
government filed its appeal the same day (indicating it had received pre-
approval from the Solicitor General) but then inexplicably waited a week
before asking the District Court to stay its injunction, ROA.1780, then
waited another week before asking this Court for a stay, which a motions
panel carried with the case.
SUMMARY OF THE ARGUMENT
The Court should affirm the District Court’s well-reasoned order
issuing a preliminary injunction against the unprecedented Mandate,
which requires millions of federal employees to undergo an unwanted
medical procedure to keep their jobs.
11
Decades of precedent have allowed facial, pre-enforcement
challenges like those brought here. Those decisions remain binding. No
court has adopted the government’s theory that Elgin silently overruled
those precedents and effected a sea change in the jurisdiction of federal
courts over these cases, and indeed this Court’s recent en banc decision
in Cochran held that Elgin broke no new ground. And even if the Court
reviewed the preclusion matter afresh, the result is the same.
On the merits, the government forfeited most of its arguments by
not raising them in opposition to the motion for preliminary relief. The
government should not be allowed to sandbag this litigation and raise
new arguments now, especially after asking for emergency relief that
requires expedited briefing.
In any event, the forfeited arguments and the few preserved
arguments are all unpersuasive. The government’s case turns on whether
the President’s power to regulate employees’ “conduct,” buried in the
middle of a statute about mundane employment matters, gave him the
power to control every aspect of federal employees’ lives, including forcing
them to undergo permanent and irreversible medical procedures. No
President has ever invoked anything remotely close to such a claim—
12
which itself is telling. And the government’s theory that the President
has inherent Article II power to fire any employee he wants is foreclosed
by binding Supreme Court precedent on the validity of the CSRA, which
the government does not challenge.
Nor did the District Court abuse its discretion in finding that
Plaintiffs would suffer imminent and irreparable harm absent relief, as
this Court has held that facing the Hobson’s choice of being unwillingly
vaccinated or fired is irreparable. This Court has also held that
reputational harms and loss of employment can be irreparable in
circumstances far less compelling than those here.
Finally, the District Court did not abuse its discretion by awarding
broad relief, as Plaintiff F4MF alone has over 6,000 members, spread
across every State and nearly every federal agency. When coupled with
the government’s repeated inability to track employees during this
litigation, the District Court correctly concluded that only a clear, broad
injunction would provide relief to all members of F4MF.
STANDARD OF REVIEW
“This court reviews the grant or denial of a preliminary injunction
for abuse of discretion, with any underlying legal determinations
13
reviewed de novo and factual findings for clear error.” Topletz v. Skinner,
7 F.4th 284, 293 (5th Cir. 2021).
ARGUMENT
I. THE DISTRICT COURT CORRECTLY HELD THAT THE PRESIDENT
LACKS AUTHORITY TO ISSUE THE MANDATE.
As demonstrated below, the District Court correctly concluded that
it could hear the challenge in this case and that the President lacks the
authority to compel all federal civilian employees to undergo a
permanent and irreversible medical procedure.
At the outset, Plaintiffs address the government’s repeated reliance
on the bare fact that other district courts denied preliminary relief
against the Mandate. Gov.Br.1, 15, 18, 51. The government’s attempt to
paint the District Court as overly eager to grant relief here is
unsupported and misleading given that the same District Judge had
previously denied a motion for a preliminary injunction against the same
Mandate in a different case. ROA.1754. Moreover, as the District Court
explained in its Order, the government’s reliance on other decisions
denying relief is unpersuasive because those cases suffered from obvious
14
flaws not present here: those other plaintiffs sued the wrong defendants,2
sued over the wrong policies,3 or filed prematurely and thus provided no
evidence that they truly faced a Hobson’s choice between unwilling
vaccination and being fired/suspended.4 ROA.1754. Those defective cases
are hardly persuasive compared to the District Court’s exhaustive
consideration here.
A. THE GOVERNMENT’S CSRA THEORY IS PRECLUDED BY
FORTY YEARS OF PRECEDENT.
The Complaint in this case states repeatedly that “Plaintiffs do not
challenge any individual employment decisions,” nor do Plaintiffs seek
employment-related relief like reinstatement or backpay. ROA.75;
ROA.76; ROA.118; ROA.138. Rather, Plaintiffs make a facial, pre-
emptive challenge to an ultra vires executive order that puts federal
2 See, e.g., Foley v. Biden, No. 4:-21-cv-1098 (N.D. Tex. Oct. 6, 2021), ECF
No. 18; McCray v. Biden, No. 1:21-cv-2882, 2021 WL 5823801 (D.D.C.
Dec. 7, 2021); Rodden v. Fauci, No. 3:21-CV-317, 2021 WL 5545234 (S.D.
Tex. Nov. 27, 2021).
3 See, e.g., Oklahoma v. Biden, No. 21-cv-1136, 2021 WL 6126230 (W.D.
Okla. Dec. 28, 2021).
4 See, e.g., AFGE v. Biden, No. 1:21-cv-23828 (S.D. Fla. Dec. 22, 2021),
ECF No. 33; Altschuld v. Raimondo, No. 1:21-cv-2779, 2021 WL 6113563
(D.D.C. Nov. 8, 2021); Church v. Biden, No. 1:21-cv-2815, 2021 WL
5179215 (D.D.C. Nov. 8, 2021)
15
civilian employees to the “Hobson’s choice” between “their job(s) and their
jab(s).” BST Holdings, LLC v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021).
Despite this, the government raises and attacks a strawman argument,
insisting the CSRA precludes all review here, even though that statute
applies only to individual employment disputes seeking typical
employment relief like backpay or reinstatement.
The government’s theory is foreclosed by decades of still-binding
precedent, and even if the Court engaged in a de novo preclusion analysis,
the result would be the same. The District Court correctly held that it
had jurisdiction.
1. Binding Precedent Holds that the CSRA Does Not
Preclude Plaintiffs’ Claims.
For at least four decades, courts—including this one—have
consistently held that district courts are a proper forum for pre-
enforcement facial challenges to regulations and executive orders, even
when they involve employment in some way.
For example, in a case involving a “government-wide regulation
promulgated by the Office of Personnel Management,” this Court cited
the D.C. Circuit’s decision in NTEU v. Devine, 733 F.2d 114 (D.C. Cir.
1984)—discussed below—and held that if a plaintiff “wishes to challenge
16
the validity of this [federal employment] regulation, there are other
means available,” such as “challenging [the] regulations in district court.”
AFGE v. FLRA, 794 F.2d 1013, 1015–16 (5th Cir. 1986). Plaintiffs
followed that holding, which remains binding and resolves this issue.
Further, when a union of federal employees challenged President
Reagan’s executive order requiring drug testing of certain employees (an
order the government cites elsewhere for support, Gov.Br.35), first in
district court and then on appeal, this Court addressed the merits of the
claims and further authorized suits “against the individual agency plans
implementing the [Executive] Order,” with nary a word about CSRA
preclusion. NTEU v. Bush, 891 F.2d 99, 102 (5th Cir. 1989). The Supreme
Court itself then considered the merits of a suit involving President
Reagan’s executive order—again without a word about CSRA
preclusion—in NTEU v. Von Raab, 489 U.S. 656 (1989).
The D.C. Circuit has also long held in this context that there is “no
legal basis” to argue that courts lack jurisdiction due to “the exclusive
jurisdictional provisions of the Civil Service Reform Act.” NFFE v.
Weinberger, 818 F.2d 935, 939–40 (D.C. Cir. 1987). In fact, the D.C.
Circuit, per authoring Judge Harry Edwards, forewarned the
17
government: “To discourage any future litigant who might have the
effrontery to engage the District Court with this discredited theory of
subject matter jurisdiction, we briefly review the law of this circuit for
what we trust will be the last time,” and the court held that constitutional
and APA challenges had been properly brought. Id. at 940, 941 n.11. The
court also rejected the theory that “exhaustion of administrative
remedies” was required (contrary to the government’s argument here).
Id. at 940. In sum, “the District Court’s federal question jurisdiction
extends to the subject matter of this dispute, and … the court has the
power to grant the equitable relief requested,” i.e., a preliminary
injunction. Id. at 941–42.
In another case that invalidated a new employment regulation
issued pursuant to 5 U.S.C. § 3302—one of the same statutes invoked
here—the D.C. Circuit held that while judicial review of “minor personnel
actions” is barred by CSRA, the court was instead “confronted with a
major policy decision” that affects “thousands of government
employees”—a number that pales in comparison to the Mandate—and
thus was not within the CSRA. NTEU v. Horner, 854 F.2d 490, 497 (D.C.
Cir. 1988) (D.H. Ginsburg, J.).
18
And another decision—written by Judge Edwards and joined by
Judges Bork and Scalia—emphatically rejected as “meritless” the idea
that the CSRA “impliedly precludes preenforcement judicial review of
rules” imposing “dramatic changes in federal personnel practices relating
to reduction in force procedures, performance management systems, and
pay administration.” Devine, 733 F.2d at 115, 117 n.8.
The government claims every single one of these Fifth and D.C.
Circuit cases is wrong. But it proffers only the thinnest of reeds. The
government cites stray language from cases that are easily
distinguishable, involving challenges to previous discipline in
individualized employment actions where employees sought standard
employment relief like reinstatement or damages.5
5 See United States v. Fausto, 484 U.S. 439, 441 (1988) (employee sought
“backpay” after being suspended); Greiner v. United States, 900 F.3d 700,
702 (5th Cir. 2018) (employee sought “damage[s]” for termination
resulting from his redundancy); Gonzalez v. Manjarrez, 558 F. App’x 350,
353 (5th Cir. 2014) (employee “seeking damages” for termination);
Rollins v. Marsh, 937 F.2d 134, 136 (5th Cir. 1991) (two employees sought
“damages” after being disciplined for publishing nude photos); Garcia v.
United States, 680 F.2d 29, 31–32 (5th Cir. 1982) (employee sought
“reinstatement and back pay” after being discharged for violating work
rules); Broadway v. Block, 694 F.2d 979, 980 (5th Cir. 1982) (reassigned
employee “request[ed] reinstatement of her former position and damages
of $15,000”); McAuliffe v. McGovern, No. CIV. SA-89-CA-0028, 1991 WL
(footnote continued on next page)
19
As one court stated in rejecting the government’s view: “Unlike
what plaintiffs claimed in [the cases cited by the government], [plaintiff]
does not challenge any personnel decisions or benefits determinations
made in individual cases, and instead asserts that the OPM’s
promulgation of the [employment] regulation was arbitrary and an abuse
of discretion in violation of 5 U.S.C. § 3302 and § 3304…. [Plaintiff’s]
requested relief would prohibit further use of the [employment]
regulation, but does not seek individual relief for specific employee
claims. The CSRA does not preclude this type of rulemaking challenge
under the APA.” NTEU v. Whipple, 636 F. Supp. 2d 63, 69 (D.D.C. 2009).6
The government next suggests that the Supreme Court’ 2012 Elgin
decision must have silently overruled the longstanding and on-point
352482, at *1 (W.D. Tex. July 23, 1991) (employee terminated for failing
job requirements sought “reinstate[ment]”), aff’d sub nom. McAuliffe v.
Rice, 966 F.2d 979 (5th Cir. 1992); Fornaro v. James, 416 F.3d 63 (D.C.
Cir. 2005) (individualized employment challenges seeking employment
relief).
6 Indeed, courts have held that APA claims are especially unlikely to be
precluded in this context. See, e.g., FLEOA v. Rigas, No. 1:19-cv-735, 2020
WL 4903843, at *3–4 (D.D.C. Aug. 20, 2020); FLEOA v. Cabaniss, No.
1:19-cv-735, 2019 WL 5697168, at *4–6 (D.D.C. Nov. 4, 2019); OCONUS
DOD Emp. Rotation Action Grp. v. Cohen, 144 F. Supp. 2d 1, 6–8 (D.D.C.
2000).
20
Fifth and D.C. Circuit cases allowing claims like Plaintiffs’. Gov.Br.23–
24 (arguing those cases “pre-date Elgin”). But the argument that Elgin
effected a sea change is foreclosed by this Court’s recent en banc decision
holding that Elgin “did not break new ground” in the area of preclusion.
Cochran, 20 F.4th at 206. That is because Elgin—just like the
government’s other cases—involved individualized “challenges [to] an
adverse employment action,” which the employees sought “to reverse”
and “to receive the compensation they would have earned.” 567 U.S. at 5,
22. Elgin was explicit that “the better interpretation of the CSRA is that
its exclusivity does not turn on the constitutional nature of an employee’s
claim, but rather on the type of the employee and the challenged
employment action.” Id. at 15 (emphasis added). Elgin simply held that
when an employee challenges an individual, prior employment action and
seeks to be reinstated or receive backpay, the CSRA precludes district
court jurisdiction even if the employee makes constitutional claims. Id.
at 15.
Despite the government’s contrary claim, Gov.Br.24–25, no court
has held that Elgin overruled prior cases involving pre-enforcement
facial challenges. But courts have rejected that view. For example: “[T]he
21
plaintiffs in Elgin were challenging a discrete employment decision
rather than any [employment] rulemaking. As such, Elgin is not relevant
to the Court’s present analysis.” Cabaniss, 2019 WL 5697168, at *6
(distinguishing the same cases the government proffers to this Court,
including AFGE v. Sec’y of the Air Force, 716 F.3d 633 (D.C. Cir. 2013),
and AFGE v. Trump, 929 F.3d 748 (D.C. Cir. 2019)).7
Critically, even if the Court believed there were tension between
Elgin and this Court’s 1980s precedents allowing claims like Plaintiffs’,
this Court’s precedents would remain binding: “For a Supreme Court
decision to override a Fifth Circuit case, the decision must unequivocally
overrule prior precedent.” Gahagan v. USCIS, 911 F.3d 298, 302 (5th Cir.
2018). Not even the government claims that high threshold is satisfied.
7 For example, AFGE, 929 F.3d 748, “contains no mention of prior D.C.
Circuit cases expressly permitting pre-enforcement review of [agency]
rulemaking,” Cabaniss, 2019 WL 5697168, at *6, indicating it did not
negate that long-established line of precedent. AFGE is thus inapplicable
here. In fact, applying the same analysis used in AFGE—the Thunder
Basin factors, discussed below—reinforces that district court review is
proper in this case.
22
2. Conducting the Preclusion Analysis Anew Yields
the Same Result.
The cases above demonstrate that Plaintiffs’ claims were properly
filed in district court. The government has never disputed that the so-
called Thunder Basin factors—for determining statutory preclusion
afresh—would favor Plaintiffs. If the Court concluded that its precedent
were no longer binding, the Court could still affirm on the alternative
basis that there is no preclusion under the Thunder Basin factors.
As this Court’s recent en banc decision in Cochran held, there is a
“‘strong presumption favoring judicial review’” in the district courts,
which “the Government may rebut only by carrying the ‘heavy burden’ of
showing that the statute’s ‘language or structure’ forecloses judicial
review.” 20 F.4th at 200. This strong presumption derives from 28 U.S.C.
§ 1331, which provides district courts with jurisdiction over “all” federal
question suits. “Not some or most—but all.” Cochran, 20 F.4th at 199.
Accordingly, this Court “will … find an intent to preclude such
review only if presented with ‘clear and convincing evidence.’” Texas v.
United States, 809 F.3d 134, 163 (5th Cir. 2015).
To do so, the government must convincingly satisfy the Thunder
Basin factors (which, again, the government never raised below).
23
Cochran, 20 F.4th at 202. First, the Court considers “whether Congress’s
intent to preclude district court jurisdiction [is] ‘fairly discernible in the
statutory scheme,’” and if not, there is no preclusion. Second, even if the
claim may be within the statutory scheme, there still is no preclusion
where “meaningful review” would otherwise be unavailable, which
requires the Court to “consider[] three factors: (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.’” Id. at 205.
These factors all favor Plaintiffs.
Preclusion Is Not Fairly Discernible. In Cochran, this Court
offered this simple test: “Elgin suggests that whether 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” in his
lawsuit. Id. at 207.
As the District Court correctly held, the CSRA applies to claims
challenging prior, individualized “actual discipline” and seeking
employment relief like reinstatement and backpay. ROA.1756; 5 U.S.C.
§ 7512. But Plaintiffs’ claims here do not challenge individualized
24
“covered adverse employment action[s],” Elgin, 567 U.S. at 20, let alone
past actions or employment discipline. Nor do they seek “to reverse [any]
removal decisions” or “receive the compensation they would have
earned.” Id. at 22. In fact, Plaintiffs expressly disclaim it: “Again, to be
clear, Plaintiffs do not challenge any individual employment decision in
this suit.” ROA.118. And in discussions with the undersigned,
government counsel has agreed that the preliminary injunction here does
not require any relief to any employees who may have been disciplined
before the injunction issued. This results from the fact that Plaintiffs are
simply not bringing covered employment claims nor seeking employment
relief, and thus are not fairly within the CSRA’s strictures. ROA.1755;
ROA.1756.
Even if the matter were debatable, that only confirms the
government has not provided “‘clear and convincing evidence’” of
preclusion. Texas, 809 F.3d at 163. That resolves the matter in Plaintiffs’
favor.8
8 The government suggests in passing that employees “could potentially”
appeal immediately to the Office of Special Counsel (“OSC”) on the theory
that the Mandate itself “could” be a “significant change in … working
conditions,” or that receiving a “letter of reprimand” “could” be a
(footnote continued on next page)
25
But even if the Court disagrees, it would merely continue to the
second Thunder Basin factor, which also favors Plaintiffs.
There Could Be No Meaningful Review. As noted above, there
are three relevant considerations regarding meaningful review. Cochran,
20 F.4th at 205.
First, a finding of preclusion “could foreclose all meaningful judicial
review” for the vast majority of affected employees. Id. The test is not
whether meaningful review must be foreclosed or even likely would be
foreclosed—but simply whether it “could,” meaning whether it “threatens
to deprive [plaintiffs] of the opportunity” to raise challenges. Id. at 199.
“disciplinary … action.” 5 U.S.C. § 2302(a)(2)(A)(iii), (xii); Gov.Br.24. But
those statutory provisions do not provide a free-standing right to
challenge working conditions or reprimands. Rather, they must have
resulted from an enumerated list of actions like whistleblowing, illegal
discrimination, nepotism, or coercing political activity—none of which
seem to apply here. 5 U.S.C. § 2302(b). That § 2302 does not preclude
review here is confirmed by this Court’s NTEU decision, which addressed
the merits of President Reagan’s drug-testing order even though the
plaintiffs argued the order violated § 2302. 891 F.2d at 101–02. In any
event, the District Court correctly concluded that merely announcing the
Mandate was not a significant change in working conditions, ROA.1755-
56; Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 367
(D.D.C. 2020), and the government has claimed elsewhere that written
warnings are not disciplinary action or subject to grievance, see
ROA.1197; ROA.1234; ROA.1256.
26
“Plaintiffs are denied meaningful review when they are subject to
some additional and irremediable harm beyond the burdens associated
with the dispute resolutions process,” Berkley v. Mountain Valley
Pipeline, LLC, 896 F.3d 624, 631 (4th Cir. 2018), and this Court already
held in BST that the choice between employees’ “job(s) and their jab(s)” is
one such “additional and irreparable” injury because of the overwhelming
pressure placed on employees to submit immediately to a permanent and
irreversible medical procedure. 17 F.4th at 618. This means a subsequent
“administrative review process is insufficient to afford [employees] full
relief.” Kreschollek v. S. Stevedoring Co., 78 F.3d 868, 875 (3d Cir. 1996).
Indeed, no one can dispute that any employee coerced into getting
vaccinated to save their job (which is precisely the point of the Mandate)
will never receive any discipline that could be challenged through the
CSRA, and the government will have imposed a permanent and
irreversible medical procedure via an in terrorem campaign. This process
is still ongoing: every day, more employees feel compelled to get
vaccinated against their wishes, but as soon as they give in, they forgo
the ability to bring a CSRA claim. ROA.82; ROA.83.
27
As in Cochran, those employees are harmed by an illegal process
that puts them to his “Hobson’s choice,” and that harm cannot be
remedied later. Neither the Merit Systems Protection Board (“MSPB”)
nor the Federal Circuit can reverse a vaccination. This is especially true
given that such employees are “not guaranteed an adverse final order” of
discipline that they could pursue through the CSRA—in fact they are
guaranteed not to receive any such order. Cochran, 20 F.4th at 203.
And in the same bucket are all the people whom the government
has or will coerce into accepting demotions as “accommodations” for
religious and medical claims—people who will have no recourse because
they allegedly consented. This includes members of F4MF. ROA.1817.9
“To be sure, it is possible that [a Plaintiff] could ultimately wind
her way through enforcement proceedings and get some later chance at
judicial review—but it is also possible that she could never have that
opportunity, and that is enough to preserve district court jurisdiction.”
9
Even among employees who are ultimately disciplined, the government
claims the MSPB “might resolve [their] case[s] in [their] favor,” Cochran,
20 F.4th at 203; Gov.Br.39, meaning they would have faced an illegal
process but be unable to reach an Article III court.
28
Cochran, 20 F.4th at 210 (emphasis added). That is enough to resolve the
Thunder Basin factors in favor of Plaintiffs.10
This Court has also rejected the government’s false claim that
authorizing such suits would open the floodgates to challenges:
“doctrines, such as standing, ripeness, exhaustion, sovereign immunity,
and abstention, may prevent district courts from hearing challenges to
ongoing administrative enforcement proceedings.” Id. at 211. And history
proves it. Plaintiffs’ rule has been adopted by circuit courts for forty years
without the slightest hint of a “floodgates” problem.
Second, as Plaintiffs have stated repeatedly, they are bringing
claims that do not challenge individual employment actions nor seek
employment relief of any kind, and thus their claims are “‘wholly
collateral’ to [the CSRA’s] review provisions.” Id. at 205. Declaring void
an executive order that puts millions of employees to an illegal and
impossible choice is hardly “relief that the CSRA routinely affords.”
Elgin, 567 U.S. at 22. And unlike in Elgin, this lawsuit is not “the vehicle
by which plaintiffs seek to reverse [any] removal decisions.” Cochran, 20
F.4th at 206. Any prior discipline pursuant to the Mandate is water
10 And notably the MSPB has now gone five years without a quorum.
29
under the bridge, not something sought to be reversed by this suit. To be
sure, the “requested relief would prohibit further use of the [Mandate and
its implementing] regulation[s], but [it] does not seek individual relief for
specific employee claims. The CSRA does not preclude this type of
rulemaking challenge.” Whipple, 636 F. Supp. 2d at 69.
Third, Plaintiffs’ claims are “‘outside the agency’s expertise’”
because they present constitutional arguments and “‘questions of
administrative law, which the courts are at no disadvantage in
answering.’” Cochran, 20 F.4th at 205, 207–08. In fact, this is the primary
purpose of federal courts. See id.
If the government were correct, then no district court would have
jurisdiction to review challenges even to the broadest, most patently
unconstitutional executive orders involving federal employees. The
President could order every federal employee to contribute half their
salary for the next six months to his reelection campaign, or forgo having
children for the next twelve months. No court has ever bought such an
expansive view of the CSRA. This Court should not be the first.
30
B. THE DISTRICT COURT CORRECTLY HELD THAT THE MANDATE
IS ULTRA VIRES.
The President lacks the power to unilaterally mandate permanent
and irreversible medical procedures as a condition of federal
employment. ROA.1761. There has long been authority for a plaintiff to
“institute a non-statutory review action” against an agency head “for
allegedly exceeding his statutory authority.” Chamber of Com. of U.S. v.
Reich, 74 F.3d 1322, 1327–28 (D.C. Cir. 1996) (the APA “does not repeal
the review of ultra vires actions,” which pre-date the APA itself). “Even
if the [agency head] were acting at the behest of the President, this does
not leave the courts without power to review the legality of the action, for
courts have power to compel subordinate executive officials to disobey
illegal Presidential commands.” Id. (alterations omitted).
As with the OSHA private-employee mandate, which this Court
called a “work-around,” BST, 17 F.4th at 612, the Mandate here was
issued without clear legal authority and was properly enjoined.
1. The President Lacks Statutory Power to Issue the
Mandate.
The District Court correctly held that none of the statutory sources
invoked by the government provide the President with the power to issue
31
an indiscriminate vaccine mandate for millions of federal employees.
ROA.1761. In its briefing on the preliminary injunction below, the
government barely even defended this point, spending only a single page
on the matter, and thus many of its arguments to this Court are new and
should be deemed forfeited. ROA.1545.
The District Court correctly held that the first two invoked
statutes—5 U.S.C. §§ 3301 and 3302—are narrowly focused, granting the
President only certain limited powers not relevant here. ROA.1762.
In passing, the government claims without any support that
§ 3301’s “authority to establish requirements for new federal employees
logically includes the authority to modify requirements for existing
employees.” Gov.Br.37. Besides being forfeited, that argument is
meritless because it ignores that Congress prescribed different authority
governing entry into and management of the federal workforce, using
different language in entirely separate chapters of Title 5.
The government next tries to portray the District Court as confused
because it cited federal contractor mandate decisions when analyzing
§ 3301. Gov.Br.36. But the language in § 3301 (“promote the efficiency of
[the civil] service”) parallels the language in 40 U.S.C. § 101 (“an
32
economical and efficient system for” procurement), which is the statute
the government claims authorizes the contractor mandate. The District
Court aptly cited cases rejecting the claim that vaccines can be mandated
on this “efficiency” basis. ROA.1762.
The government next argues that § 3302’s “identification of specific
matters the President must address does not impliedly prohibit the
President from addressing other matters,” Gov.Br.37, but this argument
was not raised below and is forfeited. It is also meritless because the
President’s authority to “prescribe rules” must be interpreted in context
of the entire statute, and the District Court properly concluded after
reviewing the entirety of § 3302 that “not even a generous reading of the
text provides authority for a vaccine mandate.” ROA.1762; see Adams v.
Woods, 6 U.S. (2 Cranch) 336, 341 (1805) (“[G]eneral expressions may be
restrained by subsequent particular words, which shew that in the
intention of the legislature, those general expressions are used in a
particular sense[.]”). The government’s view would also render the
majority of § 3302 superfluous and would push the word “rules” past its
breaking point by allegedly authorizing the President to commandeer
every aspect of federal employees’ lives.
33
Sections 3301 and 3302 also appear in a subchapter of Title 5
entitled “Examination, Certification, and Appointment,” and in a chapter
entitled “Examination, Selection, and Placement,” which reaffirms these
statutes do not extend to whether existing employees can keep their jobs.
See Yates v. United States, 574 U.S. 528, 540 (2015) (headings “supply
cues” to interpreting statutes).
The crux of the District Court’s decision turned on whether
requiring that all employees are vaccinated is “conduct” for purposes of
the third invoked statute—5 U.S.C. § 7301—which states: “The President
may prescribe regulations for the conduct of employees in the executive
branch.” But being vaccinated is not “conduct” in its commonly
understood sense. See THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (1969) (“[t]he way a person acts; behavior”);
WEBSTER’S AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1838)
(“personal behavior; course of actions; deportment” or “[m]anagement;
mode of carrying on”). A permanent and irreversible measure results in
a status, not the regulation of conduct. That alone resolves the matter.
The District Court correctly held that even assuming the Mandate
regulates conduct, EO14043 is still ultra vires because § 7301 is best read
34
as authorizing regulation of workplace conduct, and “[a]ny broader
reading would allow the President to prescribe, or proscribe, certain
private behavior by civilian federal workers outside the context of their
employment.” ROA.1763. The government claims there is no textual
limitation to employment conduct, Gov.Br.34, but the government
forfeited that argument by not raising it in its opposition below. Anyway,
the government is wrong. Section 7301 expressly references conduct for
those “in the executive branch,” indicating a limitation to conduct in
employees’ executive branch capacity.
It also beggars belief that the simple word “conduct” authorizes
widespread vaccine mandates. First, setting aside whether § 3301 would
authorize a vaccine mandate for applicants, its text—which specifically
references “ascertain[ing] … health” for applicants—differs noticeably
from § 7301’s reference to regulating “conduct” of current employees.
Congress knows how to authorize executive branch inquiries into
individual health matters, but did not do so in § 7301. Second, even
OSHA lacks such power despite an enabling statute authorizing the
agency to ensure “every working man and woman in the Nation safe and
healthful working conditions.” 29 U.S.C. § 651; see NFIB, 142 S. Ct. at
35
665–66. If a statute directly implicating employee health and safety
doesn’t authorize a vaccine mandate, then authority over employee
“conduct” doesn’t, either.
Moreover, implementation of §§ 3301, 3302, and 7301 has
historically been limited to regulating conduct in an executive branch
capacity, even when the targeted activity might occur outside the
workplace. See, e.g., 62 Fed. Reg. 43,451 (Aug. 9, 1997) (regulating
“exposure to tobacco smoke in the Federal workplace”); 77 Fed. Reg.
24,339 (Apr. 18, 2012) (“prevent[ing] domestic violence within the
workplace”).
The government’s invocation of President Reagan’s executive order
prohibiting illegal drug use is especially inapt given that (1) it did not
involve a permanent, irreversible status like being vaccinated; (2) there
is only a brief mention about using drugs outside the workplace; (3) it
narrowly applied only to those employees with “sensitive positions,” not
to every federal employee; and (4) most critically, drug use was already
illegal, and the CSRA provided that employees could be immediately
disciplined when there was “reasonable cause to believe the employee has
36
committed a crime for which a sentence of imprisonment may be
imposed,” 5 U.S.C. §§ 7513(b)(1), 7543(b)(1).
The other executive orders cited by the government—which were
not raised in its opposition below—involved the regulation of conduct in
or with a unique relationship to the workplace, required employees to
follow preexisting laws, or involved statutory authority in addition to
§ 7301. Executive Order 10096, for example, provided that the
government shall take title to inventions by government employees
during workplace hours, using government resources, or which otherwise
arose from official duties. 15 Fed. Reg. 389, 389 (Jan. 25, 1950). And
although Executive Order 11491 stated that internal union business
should be conducted “during the non-duty hours of the employees
concerned,” it did nothing to mandate such out-of-work meetings, merely
prohibiting the use of working hours for those purposes. 34 Fed. Reg.
17,605, 17,614 (Oct. 31, 1969). And Executive Order 12674 similarly
prohibited conflicts of interest that arose only because of federal
employment. 54 Fed. Reg. 15,159 (Apr. 14, 1989).11
11 The government invokes the Department of State circular of March 20,
1841, prohibiting employees from “attempts to influence the minds or
(footnote continued on next page)
37
Again, none of these examples involved acts with permanent and
irreversible consequences outside the workplace, let alone medical
procedures. It is telling that these fragments of easily distinguishable
executive orders are the best precedents the government can muster. A
vaccine mandate with no unique significance to federal employment is
without precedent and amounts to “regulat[ing] the hazards of everyday
life.” NFIB, 142 S. Ct. at 665.
The government pivots by claiming vaccine mandates do regulate
workplace conduct, Gov.Br.34, but as the District Court ruled, that
theory is foreclosed by the Supreme Court’s recent NFIB decision, which
held that broad employee vaccine mandates are “public health
measure[s]” “untethered, in any causal sense, from the workplace,” and
votes of others,” but this example actually supports Plaintiffs. That
circular predates the civil service altogether. Then, when Congress
passed the Civil Service Act of 1883, c. 27, 22 Stat. 403, it placed express
limits on the political activity of certain government employees and
directly “authorized the President to promulgate rules to carry the Act
into effect,” U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-
CIO, 413 U.S. 548, 558 (1973), justifying such prohibitions and providing
the type of statutory authority conspicuously absent for vaccine
mandates. Congress later expanded those prohibitions in the Hatch Act,
Pub. L. No. 76-252, 53 Stat. 1147 (1939), confirming that Congress—not
the President acting unilaterally—has long played the leading role in
regulating employee conduct outside the workplace.
38
thus are not “workplace safety standards,” 142 S. Ct. at 665, 666 (refusing
to let OSHA “regulate the hazards of daily life” as occupational hazards
“simply because most Americans have jobs and face those same risks
while on the clock”).
Even if the Supreme Court’s opinion did not foreclose the
government’s argument, the Sixth Circuit’s persuasive opinion about the
contractor mandate explains why the government is wrong. All of the
government’s historical examples are “modest, ‘work-anchored’
measure[s] with an inbuilt limiting principle,” but a vaccine mandate
“requires vaccination everywhere and all the time”—“[i]t is not ‘anchored’
to the statutory text, nor is it even ‘anchored’ to the work of federal
contractors.” Kentucky, 23 F.4th at 608. The same is true for federal
employees.
When a general employment requirement has permanent and
irreversible consequences outside the workplace, it can no longer be
considered the regulation of “workplace conduct.” Rather, it is a general
health and safety measure.
39
2. Several Clear-Statement Doctrines Confirm the
Lack of Statutory Authority.
Even if these statutes were ambiguous about the President’s power
to mandate medical procedures, several clear-statement doctrines
confirm that the generic authority to issue “rules” and regulate “conduct”
does not include the power to issue a broad vaccine mandate.
To begin, the Supreme Court has already recognized that the major-
questions doctrine applies to widespread federal vaccine mandates, see
NFIB, 142 S. Ct. at 665, which requires Congress to “speak[] clearly”
when it delegates “powers of ‘vast economic and political significance,’”
Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021). The
government will predictably claim that the Mandate does not involve
questions of vast economic and political significance, but that falls flat
because the government argued to the District Court that imposing the
Mandate is important to protect the “millions” of federal employees and
the critically important “aspects of the government’s work,” ROA.1555;
ROA.1556. The government cannot have it both ways.
This Court has also made clear that “to mandate that a person
receive a vaccine or undergo testing falls squarely within the States’
police power,” which implicates the federalism clear-statement canon.
40
BST, 17 F.4th at 617. This canon applies despite employees’ federal
nexus. By imposing a generally applicable vaccine mandate on federal
employees, which carries permanent and irreversible non-workplace
consequences, the government is not regulating federal employees qua
employees but rather is imposing a general public-health measure. As
the Sixth Circuit held in the context of the contractor mandate, the
government is “fram[ing] the issue at the wrong level of generality,” by
focusing solely on the group targeted, not the action taken. Kentucky, 23
F.4th at 610. It “certainly” implicates the federalism clear-statement
canon “when the federal government seeks to usurp [the States’] roles by
doing something that it has no traditional prerogative to do—deploy
[regulations] to mandate an irreversible medical procedure.” Id.
A third clear-statement doctrine provides that “[w]here an
administrative interpretation of a statute invokes the outer limits of
Congress’ power,” Congress must provide “a clear indication that [it]
intended that result.” Solid Waste Agency v. U.S. Army Corps of Eng’rs,
531 U.S. 159, 172 (2001). This Court has held that broad vaccine
mandates are at the outer limits of Congress’s power. BST, 17 F.4th at
617.
41
Consistent with these clear-statement rules, when Congress
authorizes mandatory vaccinations, it has done so expressly, including in
areas where the President could claim inherent Article II power. See 8
U.S.C. § 1182(a)(1)(A)(ii) (mandating vaccines in immigration context).
But Congress did not do so here.
The government has previously argued that these clear-statement
doctrines apply only when the government invokes Chevron deference.
ROA.1546. That is wrong. The Supreme Court has repeatedly applied the
major-questions doctrine when the government did not seek Chevron
deference. NFIB, 142 S. Ct. at 665; Ala. Ass’n, 141 S. Ct. at 2489. As Chief
Judge Sutton (joined by seven of his colleagues) persuasively explained,
“ambiguity for Chevron purposes comes at the end of the interpretation
process, not at the beginning. The clear-statement canons eliminate any
power-enhancing uncertainty in the meaning of the statute.” See In re
MCP No. 165, 20 F.4th 264, 280 (6th Cir. 2021) (Sutton, C.J., dissenting).
For the same reason, the Court should reject the government’s
argument—made only in passing below and thus forfeited—that the
canons apply to agency action but not to exercises of “presidential …
authority.” ROA.1546. Agency actions always involve presidential
42
authority because those agencies are overseen by and report to the
President.
If anything, canons like the major-questions doctrine apply more
strongly when the President’s actions are directly at issue. The major-
questions doctrine “appl[ies] … in service of” the nondelegation doctrine,
Gundy v. United States, 139 S. Ct. 2116, 2142 (2019) (Gorsuch, J.,
dissenting), which the Supreme Court has applied most stringently to
authority delegated directly to the President, see A.L.A. Schechter Poultry
Corp. v. United States, 295 U.S. 495 (1935) (Congress authorized
President directly to develop codes of conduct); Panama Ref. Co. v. Ryan,
293 U.S. 388 (1935) (Congress authorized President directly to prohibit
transportation of certain oil). Given their common roots, it makes little
sense to argue the major-questions doctrine does not apply to
Presidential actions when the nondelegation doctrine so clearly does.
Finally, if Congress did give the Executive such dramatic power
uncabined by statutory text, it would violate the nondelegation doctrine,
see Gundy, 139 S. Ct. at 2134–37 (Gorsuch, J., dissenting), but the
Supreme Court has held that courts should avoid such concerns by
narrowly interpreting seemingly broad statutory text, see Indus. Union
43
Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980)
(plurality); ROA.123.
3. The President Lacks Inherent Article II Power to
Issue the Mandate.
The District Court also correctly held that the President lacks
inherent Article II authority to issue the Mandate. ROA.1765; cf. BST,
17 F.4th at 618 (“Nor can the Article II executive breathe new power into
OSHA’s [statutory] authority.”).
The government does not argue that the CSRA is unconstitutional,
which forecloses reliance on inherent Article II power to circumvent the
strictures of that statute. Congress carefully prescribed specific and
varying authority governing entry into and management of the federal
workforce, which would become superfluous if the President could simply
invoke Article II to assume whatever additional power he desired.
Anyway, conspicuously missing from the government’s brief is any
example of any President in the Nation’s history who invoked inherent
Article II authority to impose medical procedures of any type on civilian
employees—let alone every employee. Cf. In re MCP No. 165, 20 F.4th at
289–91 (Sutton, C.J., dissenting). “The dearth of analogous historical
examples is strong evidence that [the provision] does not contain such a
44
power,” especially given that “the threat of absenteeism is hardly unique
to COVID-19.” Kentucky, 23 F.4th at 608.
The government vaguely argues that refusal by line-level
employees to confirm their vaccinated status somehow interferes with
the President’s “executive power,” but the District Court made short work
of that theory. ROA.1765. Vaccination status in no way interferes with
the President’s ability to direct how the law should be executed. The
government’s invocation of Seila Law LLC v. CFPB, 140 S. Ct. 2183
(2020), Gov.Br.28, is inapplicable for two reasons. First, that case
references the President’s “administrative control” over certain officials,
but mandating a permanent and irreversible medical procedure is hardly
a mere “administrative” requirement. Second, Plaintiffs are line-level
employees, not “Officers of the United States” who exercise significant
authority and are personally accountable to the President.12 The
distinction between officers and employees dates back at least to the
Supreme Court’s seminal decision in Myers v. United States, 272 U.S. 52
12 Even when it comes to Officers, the Supreme Court has held that the
President does not have inherent Article II power to remove certain high-
level executive branch officers, and that precedent remains binding as of
now. See Morrison v. Olson, 487 U.S. 654, 686 (1988).
45
(1926), which held that while the President had constitutional power to
“remov[e] executive officers of the United States whom he has appointed
by and with the advice and consent of the Senate,” id. at 106, by contrast
“the merit system rests with Congress,” id. at 174. Unless the Supreme
Court revisits that conclusion, the CSRA limits whatever inherent
authority the President might otherwise have, and this Court can assume
without deciding that the CSRA is constitutional because the government
never contends otherwise.
As Chief Judge Sutton reminded us, if the government’s argument
were accepted, it would “come[] with easy-to-overlook risks.” In re MCP
No. 165, 20 F.4th at 273–74 (Sutton, C.J. dissenting). Indeed, despite
having many opportunities to do so, the government has never disputed
that its interpretation would authorize the President to order every
federal employee to undergo permanent and irreversible surgeries (e.g.,
LASIK eye surgery or weight-reduction surgery), ingest experimental or
prescription medications (e.g., Adderall, performance enhancing drugs),
forgo all drinking, drive only certain types of vehicle to work, assume a
vegan or other specific diet, or almost anything else conceivably labeled
as “conduct,” even though—as the Sixth Circuit held—there is no “logical
46
stopping point” to this claimed power, which would amount to “a de facto
police power [of] the President.” Kentucky, 23 F.4th at 608; ROA.1766.
Any interpretation giving the President such power over line-level
federal employees would need to be based on clear textual or historical
evidence, but the government has neither.
C. AGENCIES’ IMPLEMENTATION OF THE MANDATE VIOLATES
THE APA.
The APA provides an alternative basis for denying the
government’s motion. Agency action implementing an executive order is
subject to judicial review under the APA. See, e.g., E. Bay Sanctuary
Covenant v. Biden, 993 F.3d 640, 669 (9th Cir. 2021); Coliseum Square
Ass’n v. Jackson, 465 F.3d 215, 232 (5th Cir. 2006); Reich, 74 F.3d at
1326–28 (holding that mere fact that “regulations are based on the
President’s Executive Order hardly seems to insulate them from judicial
review under the APA, even if the validity of the Order were thereby
drawn into question”); see also Avoyelles Sportsmen’s League, Inc. v.
Marsh, 715 F.2d 897, 908 (5th Cir. 1983) (holding that the APA’s broad
definition of the term “rule” includes “virtually every statement an
agency may make”).
47
Agency implementation of the Mandate qualifies as reviewable
agency action. President Biden expressly told agencies to “implement …
a program to require COVID-19 vaccinations” for employees, 86 Fed. Reg
at 50,990, and almost every one of the government’s declarants openly
acknowledged that each agency is “requiring its civilian employees to be
vaccinated against COVID-19” pursuant to EO14043. ROA.1560–94. All
agencies have the same requirements in terms of deadlines, the same
refusal to make exceptions for telework or previously infected
individuals, and the same abject failure to provide reasoned
decisionmaking. ROA.823. As agency implementations and expansions of
EO14043, with significant real-world legal consequences and obligations,
the agencies’ actions are subject to APA review. See Sloan v. HUD, 231
F.3d 10, 14 (D.C. Cir. 2000); Batterton v. Marshall, 648 F.2d 694, 701–02
(D.C. Cir. 1980).13
The District Court held that it “need not reach th[e] question” of
whether agency implementations of the Mandate are reviewable under
13 The government argued below that there is no final agency action, but
that is just a rehash of its flawed CSRA theory, which is likewise
premised on the erroneous view that Plaintiffs are challenging individual
employment actions. Each agency has unquestionably adopted and
implemented vaccine requirement programs.
48
the APA, although it seemed to believe that agencies have no
“discretion[]” whether to impose the baseline requirement to be
vaccinated. ROA.1767. But, with respect, this overlooked the
government’s own concessions: the government has stated repeatedly
that agencies have discretion to retain unvaccinated employees even
when they do not qualify for a religious or medical exemption. Gov.Br.39
(arguing it “is not a foregone conclusion” that any “plaintiffs are
ultimately disciplined for refusing vaccination”); ROA.1795 (“[R]emoval
is not a foregone conclusion in any given case”).
If that is true, then agencies’ “implementation of the federal-worker
mandate” is indeed reviewable under the APA, including aspects like
whether to preclude discipline for unvaccinated teleworkers or those with
natural immunity. ROA.1767. Agencies cannot invoke discretion in one
breath and then disclaim it in the next.
In any event, EO14043 merely told agencies to “implement” their
own “program[s],” 86 Fed. Reg. at 50,990, and Defendant agencies have
chosen to follow Task Force requirements setting deadlines and
disciplinary procedures, which certainly are discretionary
implementations. ROA.1660.
49
These independent actions render Defendant Agencies’
implementations of the Mandate subject to APA review. See Texas v.
Becerra, No. 2:21-CV-229, ___ F. Supp. 3d ___, 2021 WL 5964687, at *13
(N.D. Tex. Dec. 16, 2021) (invalidating similar mandate on APA grounds).
For the reasons below, the agencies’ implementations of the
Mandate violate the APA.
1. Lack of Reasoned Decisionmaking.
Federal administrative agencies must engage in “reasoned
decisionmaking.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.
359, 374 (1998) (quotation marks omitted). The “agency must examine
the relevant data and articulate a satisfactory explanation for its action
including a ‘rational connection between the facts found and the choice
made.’” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983). This Court’s subsequent “review is not
toothless. … [I]t has serious bite.” Wages & White Lion Invs., L.L.C. v.
FDA, 16 F.4th 1130, 1136 (5th Cir. 2021).
The individual agency vaccine mandates abjectly fail this reasoned
decisionmaking requirement. The mandates provide almost no
reasoning, only diktats. ROA.823–1111. Even if the Task Force guidance
50
is deemed incorporated into agency mandates, it provides no help because
it contains only one sentence (really, half a sentence) of rationale: “To
ensure the safety of the Federal workforce, Federal employees must be
fully vaccinated, except in limited circumstances where an employee is
legally entitled to a reasonable accommodation.” ROA.789.
Such conclusory justifications are per se arbitrary and capricious.
See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016)
(“[C]onclusory statements do not suffice to explain [an agency’s]
decision.”).
And there are plenty of important aspects of the challenged actions
that are never justified or even mentioned. For example: Why are
vaccines mandated for federal employees when OSHA—as part of the
same vaccine mandate roll-out—said that private employers can use
testing and masking instead, which would provide “roughly equivalent
protection” as a vaccine mandate? COVID-19 Vaccination and Testing;
Emergency Temporary Standard, 86 Fed. Reg. 61,402, 61,515 (Nov. 5,
2021). “Treating similar situations differently without adequate
explanation is the very embodiment of arbitrary conduct.” Rupcich v.
United Food & Com. Workers Int’l Union, 833 F.3d 847, 856 (7th Cir.
51
2016); see Missouri v. Biden, No. 4:21-cv-01329-MTS, 2021 WL 5564501,
at *8 (E.D. Mo. Nov. 29, 2021) (invalidating similar mandate where
agency “failed to consider or rejected obvious alternatives to a vaccine
mandate without evidence”).
Also: Why are teleworkers covered? Why is every agency and
employee treated the same regardless of location and workplace? Why
was the November 22, 2021, deadline chosen? Why is natural immunity
insufficient?14 How was the stepped-disciplinary process chosen? How
will agencies decide whom to suspend or terminate? What effects will this
have on health and economics?
There may be reasonable answers to these questions, but
Defendants simply ignored them. See Becerra, 2021 WL 5964687, at *13
(invalidating similar federal vaccine mandate because, inter alia,
“Defendants allowed regular testing as an alternative to vaccination in
the OSHA mandate but provide no explanation why that exception
cannot apply here,” and the mandate made an unjustifiable “sweeping
14 Especially given the CDC’s report that natural immunity is far
superior to vaccine-induced immunity. See COVID-19 Cases and
Hospitalizations by COVID-19 Vaccination Status and Previous COVID-
19 Diagnosis — California and New York, May–November 2021,
https://tinyurl.com/2p8t6j99.
52
application … sans exceptions”); Missouri, 2021 WL 5564501, at *7–*11
(invalidating similar federal vaccine mandate for agency’s utter failure
to address significant questions like those above). Cf. 86 Fed. Reg. at
61,436 (OSHA refusing to mandate vaccines because there has not been
“a full opportunity to study the potential spectrum of impacts on
employers and employees, including the economic and health impacts”).
Moreover, the failure to take “any consideration whatsoever’ of a
[more limited] policy” is itself arbitrary and capricious. DHS v. Regents
of Univ. of Calif., 140 S. Ct. 1891, 1912 (2020).
2. Agencies’ Implementations Are Inconsistent,
Illogical, and Contrived.
The agency-level implementations of the Mandate are arbitrary
and capricious for another reason: they are illogical, inconsistent, and
contrived.
Inconsistent with OSHA Mandate. The agencies do not provide
any alternative to vaccination. This conflicts with the OSHA private-
employee mandate, which allowed masking and weekly testing as an
alternative to mandated vaccinations because “they are similar but
slightly different schemes that provide roughly equivalent protection.” 86
Fed. Reg. at 61,515. It is inconsistent to give private employees the option
53
to do regular testing and masking while mandating vaccination for
federal employees—especially when these schemes were promulgated
contemporaneously.
Zero Consideration of Employee Characteristics. Agency
implementations of the Mandate do not distinguish between employees.
This Court held that the OSHA private-employee mandate was a “one-
size-fits-all sledgehammer that makes hardly any attempt to account for
differences in workplaces (and workers),” yet it looks like a “delicately
handled scalpel” when compared to the Mandate, which makes no
attempt at those considerations. BST, 17 F.4th at 612. By contrast, in
upholding the Centers for Medicare & Medicaid Services (“CMS”) vaccine
mandate, the Supreme Court focused on its narrow scope, which targeted
just one type of facility with the highest COVID risk and even exempted
teleworkers. Biden v. Missouri, 142 S. Ct. 647, 651 (2022).
Stated Rationale is Contrived and Inconsistent. The Mandate
is part of a contrived “work-around” for lack of authority for a nationwide
vaccine mandate. Even if an employee vaccine mandate were otherwise
legal, giving a false explanation is necessarily arbitrary and capricious.
Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573–76 (2019).
54
The Court should therefore affirm on the additional basis that the
agencies’ implementation of the Mandate is arbitrary and capricious.
II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING
THAT PLAINTIFFS FACE IMMINENT, IRREPARABLE HARM.
“To show irreparable injury if threatened action is not enjoined, it
is not necessary to demonstrate that harm is inevitable and irreparable.”
Humana, Inc. v. Avram A. Jacobson, M.D., 804 F.2d 1390, 1394 (5th Cir.
1986). “The plaintiff need show only a significant threat of injury from
the impending action, that the injury is imminent, and that money
damages would not fully repair the harm.” Id. (emphasis added). That is,
even if money could partially repair the harm, it can still qualify for a
preliminary injunction. A district court’s finding here is reviewed only for
an abuse of discretion. Texas v. Biden, 20 F.4th 928, 1001 (5th Cir. 2021).
This Court has held that the unusual nature of putting employees
to the choice of “their job(s) and their jab(s)” is irreparable—infringing on
what this Court has called “the liberty interests of reluctant individual
recipients”—and that resolves the matter here. ROA.1760; BST, 17 F.4th
at 618; see ROA.776. This case is even easier because, unlike the private
employees in BST, federal employees have no option to be tested in lieu
55
of vaccination. Every unvaccinated member of F4MF is facing this
“Hobson’s choice,” which provides all the irreparable harm needed.
Moreover, the District Court followed this Court’s decision in
Burgess v. FDIC, 871 F.3d 297 (5th Cir. 2017), which found that
government action “injur[ing]” an employee’s “ability to procure
comparable employment was sufficient to satisfy irreparable injury,” id.
at 304; ROA.1760. That defeats the government’s claim that Burgess
applies only where an employee would face “complete exclusion” from all
jobs. Gov.Br.41. The government implies Burgess does not apply here
because of the CSRA, but (again) Plaintiffs are not bringing
individualized employment claims, and Plaintiffs will have no recourse if
they succumb to the government’s pressure campaign. In any event,
Burgess itself dealt with a reticulated federal discipline and review
system (with the FDIC), but this Court still agreed there was irreparable
harm.15
There are also reputational harms that independently justify a
finding of irreparable harm. Plaintiffs introduced below an affidavit from
15 The government oddly claims the “district court identified no plaintiff
who is at imminent risk of injury.” Gov.Br.3. The district court pointed to
numerous affidavits demonstrating imminent injuries. ROA.1757–58.
56
an employment expert—to which the government offered no rebuttal
affidavit and has forfeited any objection—stating that federal employees
who resist the Mandates and suffer discipline will incur unique
reputational harm that would never apply to mine-run federal
employment actions. ROA.1182. The President labels these employees
lawbreakers (“violat[ors] of a lawful order”) and “kill[ers].” ROA.1184. He
accused them of “overcrowd[ing] our hospitals, … overrunning the
emergency rooms and intensive care units, leaving no room for someone
with a heart attack, or pancreitis [sic], or cancer.” ROA.1185. He said
those not vaccinated “ha[ve] cost all of us,” they “stand in the way of
protecting the large majority of Americans who have done their part and
want to get back to life as normal,” and are “undermining you and …
lifesaving actions”—and he would invoke his tremendous “power as
President to get them out of the way.” ROA.1185.
Being targeted with such rhetoric by the President himself is
precisely the kind of reputational damage that cannot be undone with
money. ROA.1185. Tellingly, the government refused to defend the
President’s statements and did not dispute that reputational harm would
be irreparable. Indeed, this Court has long recognized irreparable harm
57
from such reputational injuries, even in the employment context. See
Burgess, 871 F.3d at 304 (finding irreparable harm where the
government’s employment actions caused “reputational harm”); Valley v.
Rapides Par. Sch. Bd., 118 F.3d 1047, 1056 (5th Cir. 1997) (same, for
teacher who supplied expert affidavit in support).
The government also ignores irreparable harms to Plaintiffs like
Joshua Roberts, who—if he loses his DHS job—would likely be barred
from adopting the two infants he and his wife have fostered since the
babies were only a few weeks old. ROA.1227. Plaintiff Thomas David
Green is a DHS employee who served in the Marine Corps and Army
during Operation Iraqi Freedom III, and he is a single father whose job
provides the sole financial support for four minor children. ROA.1219. If
these harms are not irreparable, nothing is.
More, employees with religious objections face a “crisis of
conscience” that is irreparable. See Sambrano v. United Airlines, Inc., 19
F.4th 839, 841 (5th Cir. 2021) (Ho, J., dissenting); ROA.76; ROA.77. The
government claims those with pending religious exemptions do not face
any harm, but that is wrong, as shown by employees coerced into
58
accepting demotions labeled as “religious accommodations,” for which
they have no recourse. ROA.1817.
Nor can the government demonstrate that the harms described
above are not imminent. The government itself touted that it was
planning to begin severe discipline imminently in January, meaning
employees would soon face the Hobson’s choice of their jobs or their jabs.
Alex Gangitano & Morgan Chalfant, Federal Agencies Prepare to Act
Against Unvaccinated Employees, The Hill (Jan. 9, 2022),
https://thehill.com/homenews/administration/588836-federal-agencies-
prepare-to-act-against-unvaccinated-employees. And many members of
F4MF submitted affidavits demonstrating this. See, e.g., ROA.1195;
ROA.1204; ROA.1206; ROA.1212; ROA.1216; ROA.1229; ROA.1232;
ROA.1242; ROA.1244; ROA.1486; ROA.1493; ROA.1745.
Indeed, putting employees to this imminent Hobson’s choice is the
entire point of the Mandate: “[T]he value of a sword of Damocles is that
it hangs—not that it drops. For every employee who risks his job by
testing the limits of the [government’s action], many more will choose the
cautious path.” Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J.,
dissenting).
59
III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING
THAT THE PUBLIC INTEREST AND BALANCE OF HARMS FAVOR
PLAINTIFFS.
To be sure, “the public has a strong interest in combating the spread
of [COVID-19]. But our system does not permit agencies to act unlawfully
even in pursuit of desirable ends.” Ala. Ass’n, 141 S. Ct. at 2490; BST, 17
F.4th at 618 (“Any interest [the government] may claim in enforcing an
unlawful” regulation “is illegitimate.”). That resolves the matter: the
Mandate and its implementation by agencies are illegal, and the
government can claim no equity in enforcing an illegal requirement.
As this Court has recognized, the public interest is “served by
maintaining our constitutional structure and maintaining the liberty of
individuals to make intensely personal decisions according to their own
convictions.” BST, 17 F.4th at 618. The District Court also correctly
held—again, reviewable only for an abuse of discretion—that the public
will not be served “by terminating unvaccinated workers who provide
vital services to the nation.” ROA.1768.
In terms of balance of harms, Plaintiffs submitted over a dozen
affidavits demonstrating several forms of irreparable harm, as
demonstrated above. By contrast, the government’s opposition to
60
Plaintiffs’ motion for a preliminary injunction failed to include any
affidavit on the harms the government would allegedly suffer from an
injunction. As a result, the Court should deem the government’s
subsequent claims of harm unsupported and forfeited.
Even if the Court considered them, the government’s claims of
harm are unpersuasive. First, the District Court found—reviewed only
for clear error—that the “government has not shown that an injunction
in this case will have any serious detrimental effect on its fight to stop
COVID-19.” ROA.1768. This was based on statistics from the government
itself, showing that “an overwhelming majority of the federal workforce
is already vaccinated,” id., a fact the White House itself has publicized,
citing 98% compliance, see Press Briefing, WHITE HOUSE (Jan. 21, 2022),
https://www.whitehouse.gov/briefing-room/press-briefings/2022/01/21/
press-briefing-by-press-secretary-jen-psaki-january-21-2022/; Eric Katz,
Some Agencies Report 100% Vaccine Mandate Compliance As Others
Begin Suspensions, GOV. EXEC. (Jan. 11, 2022),
https://www.govexec.com/workforce/2022/01/some-agencies-report-100-
vaccine-mandate-compliance-others-begin-suspensions/360630/.
61
The government has touted that it could fire or suspend non-
compliant employees without suffering operational concerns,
undercutting its litigation claim that COVID-19 absenteeism from those
employees would cause irreparable harm. Gangitano & Chalfant, Federal
Agencies Prepare to Act, supra.
And the government’s argument is especially weak given the
District Court’s finding that unvaccinated employees can still use
“masking, social distancing, or part- or full-time remote work.”
ROA.1769. The government never explains how it will suffer irreparable
harm despite those available options, which the government has
elsewhere endorsed.
Second, the government’s claimed harm is especially unconvincing
given the lengthy delay in enforcing the Mandate after the President
announced it on September 9, 2021. This delay included the winter
holidays, despite the government simultaneously warning of a “surge
upon a surge” of cases. Noah Higgins-Dunn, Dr. Fauci Warns the U.S.
Will See a ‘Surge Upon a Surge’ of Covid Cases Following the Holidays,
CNBC (Dec. 1, 2020), https://www.cnbc.com/2020/12/01/dr-fauci-warns-
the-us-will-see-a-surge-upon-a-surge-of-covid-cases-following-the-
62
holidays.html. This suggests the government’s sense of urgency depends
largely on public optics, not actual harm.
The government’s leisurely approach to this case confirms the
government’s lack of harm. The government delayed more than a week
before seeking a stay from the District Court and then waited another
week to seek relief in this Court. By comparison, when a district court
enjoined the CMS mandate, the government sought stays from both the
district court and this Court within two days, see Louisiana v. Becerra,
No. 3:21-cv-03970 (W.D. La.), appealed, No. 21-30734 (5th Cir.), and did
so within three days when the contractor mandate was enjoined
nationwide, see Georgia v. Biden, No. 1:21-cv-00163 (S.D. Ga.), appealed,
No. 21-14269 (11th Cir.).
Third, the government argues that “allowing the continued service”
of employees who refused to comply with the illegal Mandate “will
damage good order and discipline.” Gov.Addend.27. That is a Catch-22:
either comply with an illegal requirement, or the government will claim
your lack of compliance hurts morale and thereby justifies keeping the
illegal requirement in place. But the government can claim no vested
interest in an illegal policy. Ala. Ass’n, 141 S. Ct. at 2490. The
63
government also complains about being unable to process exemption
requests, Gov.Br.45–46, but there is no irreparable harm from the
inability to exempt people from illegal requirements that are not even in
effect. To the contrary, the government has used the exemption process
to coerce employees into accepting demotions. ROA.1817.
Finally, the government laments that the District Court
“usurp[ed]” the President’s power. Gov.Mot.2. But there is “a long history
of judicial review of illegal executive action, tracing back to England.”
Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). The
Mandate is no exception.
***
Jurisdictions around the country are rapidly dropping their vaccine
mandates and other COVID-19 restrictions, confirming the District
Court did not abuse its discretion by finding that “[s]topping the spread
of COVID-19 will not be achieved by overbroad policies like the federal-
worker mandate.” ROA.1769. And even with the injunction in place,
federal employees remain free to get vaccinated voluntarily.
64
IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FINDING
THAT BROAD RELIEF IS APPROPRIATE.
The government cannot show the District Court abused its
discretion by granting nationwide relief. Texas, 809 F.3d at 187. The
District Court noted that it “always will be terribly reluctant to go
nationwide on injunctive relief,” ROA.1858; but it was ultimately
persuaded by the “unique facts” of this case, ROA.1770.
First, the President’s own Task Force has announced that
“consistency across government in enforcement of this government-wide
policy is desired.” ROA.810. There is no abuse of discretion in holding the
government to its own desired standard.
Second, lead Plaintiff F4MF has over 6,000 registered members
“spread across every state and in nearly every federal agency.”
ROA.1770. Intake survey data demonstrate that over 90% of F4MF
members are federal employees. The government now questions whether
these public servants are truly “members” of F4MF, Gov.Br.48, but this
claim is unpersuasive given that F4MF has already demonstrated that it
has standard indicia of membership like leaders who are also members,
and nearly 1,000 members who made significant financial contributions
to fund this litigation. Pls.Addend.1.
65
Given the vast size of the membership body and its constantly
changing characteristics—with employees joining every day, moving
between states or agencies, or having exemption requests denied or
facing the “Hobson’s choice” on a rolling basis—there was no narrower
scope of relief that could be determined ex ante that would also guarantee
“complete relief” to all members. Califano v. Yamasaki, 442 U.S. 682, 702
(1979).
By finding that tailored relief is not “practical in this case,”
ROA.1770, the District Court indicated there are so many affected
individuals that, without a nationwide injunction, Defendants would
undoubtedly impose harm on many people nonetheless entitled to relief.
See League of Women Voters of United States v. Newby, 838 F.3d 1, 8–9
(D.C. Cir. 2016) (“As a preliminary injunction requires only a likelihood
of irreparable injury, Damocles’s sword does not have to actually fall on
all appellants before the court will issue an injunction.”).
The government insists it could “easily” track members of F4MF,
Gov.Br.49, but the government has a poor record. During the pendency
of this litigation, the government repeatedly targeted members of F4MF
despite their pending exemption requests, contrary to the government’s
66
own guidance. See ROA.1454; ROA.1464; ROA.1600. A different Plaintiff
was issued a notice of termination, which his agency then withdrew
because it was non-compliant with the agency’s disciplinary timeline—
but his agency later insisted the withdrawal itself was invalid and the
employee would be imminently fired, only to change its mind again when
undersigned counsel intervened. ROA.1625; ROA.1645.
Similar concerns about ensuring full relief motivated the Southern
District of Georgia to issue a nationwide injunction against the contractor
mandate, which the Eleventh Circuit refused to narrow on appeal.
Georgia v. Biden, No. 1:21-CV-163, ___ F. Supp. 3d ___, 2021 WL
5779939, at *12 (S.D. Ga. Dec. 7, 2021), motion to stay denied, Order,
Georgia, No. 21-14269 (11th Cir. Dec. 17, 2021).
Third, broad relief complies with Louisiana v. Becerra, 20 F.4th 260
(5th Cir. 2021). Judge Brown is also presiding over the other case
challenging the Mandate that is most likely to reach a full analysis of the
merits (Rodden), meaning there is little concern that different courts will
“inconsistently rul[e]” when addressing the same claims. 20 F.4th at 263.
And Becerra endorsed broad injunctions where the “circumstances” of the
case call for it, such as when there is “a concern that ‘a geographically-
67
limited injunction would be ineffective.’” Id. That concern is present here
and is magnified by the many agencies and members involved.
Fourth, the government’s request to resume “process[ing]”
exemption requests is especially insidious. Gov.Br.45. The government
has claimed that employees subject to that process “would not be
injured.” Gov.Mot.21. But consider CIA employee George O’Sullivan, a
Purple Heart recipient and 100% service-disabled veteran, who was
pressured into accepting the religious “accommodation” of a demotion
with a $60,000 pay cut or else face imminent discipline. ROA.1817. Yet
the Chair of the CIA’s accommodation committee submitted an affidavit
stating that “the CIA maintains a diverse, inclusive, equitable, and
accessible workplace where differences are valued, and conflicts are
managed constructively.” ROA.1592. “Inclusive” and “constructive,”
indeed.16
16 The government also says that one Plaintiff—out of 6,000 members—
is named in another case challenging EO14043, Gov.Br.51, but that
argument is forfeited because it was not raised below in the government’s
opposition to the preliminary injunction. Anyway, there is no preclusion
because no judgment has issued in the other case. See FDIC v. Nelson, 19
F.3d 15 (5th Cir. 1994) (memorandum).
68
CONCLUSION
The Court should affirm the preliminary injunction.
February 16, 2022 Respectfully submitted,
/s/ R. Trent McCotter
C. Boyden Gray
R. Trent McCotter
Counsel of Record
Jonathan Berry
Michael Buschbacher
Jared M. Kelson
BOYDEN GRAY & ASSOCIATES
801 17th Street NW, Suite 350
Washington, DC 20006
202-706-5488
mccotter@boydengrayassociates.com
Counsel for Plaintiffs-Appellees
69
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume
limitations of Fifth Circuit Rule 32 and Federal Rule of Appellate
Procedure 32(a)(7)(B) because it contains 12,952 words, excluding the
portions exempted by Rule 32(f). This brief complies with the typeface
and type style requirements of Federal Rule of Appellate Procedure Rule
32(a)(5)–(6) because it has been prepared in a proportionally spaced
typeface using Microsoft Word in Century Schoolbook and 14-point font
February 16, 2022 /s/ R. Trent McCotter
BOYDEN GRAY & ASSOCIATES PLLC
801 17th Street NW, Suite 350
Washington, DC 20006
70
CERTIFICATE OF SERVICE
I hereby certify that all counsel of record who have consented to
electronic service are being served today with a copy of this document via
the Court’s CM/ECF. All parties in this case are represented by counsel
consenting to electronic service.
February 16, 2022 /s/ R. Trent McCotter
BOYDEN GRAY & ASSOCIATES PLLC
801 17th Street NW, Suite 350
Washington, DC 20006
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