FEDS FOR MEDICAL FREEDOM, ET AL., PLAINTIFFS, v. JOSEPH R. BIDEN, JR., ET AL., DEFENDANTS.
FEDS FOR MEDICAL FREEDOM, ET AL., PLAINTIFFS, v. JOSEPH R. BIDEN, JR., ET AL., DEFENDANTS.
ENTERED
January 21, 2022
IN THE UNITED STATES DISTRICT COURTNathan Ochsner, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
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No. 3:21-cv-356
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v.
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MEMORANDUM OPINION AND ORDER
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injunction protects the plaintiffs from imminent harm, the court declines to
enjoin the first order. The second, Executive Order 14043, amounts to a
against COVID-19 or lose their jobs. Because the President’s authority is not
that broad, the court will enjoin the second order’s enforcement.
The court notes at the outset that this case is not about whether folks
President can, with the stroke of a pen and without the input of Congress,
condition of their employment. That, under the current state of the law as
Background
put out four mandates requiring vaccination in various contexts. Earlier this
month, the Supreme Court ruled on challenges to two of those mandates. For
determined the plaintiffs would likely succeed on the merits and so granted
preliminary relief. See Nat’l Fed’n Indep. Bus. v. OSHA, 595 U.S. ___ (2022)
[hereinafter NFIB]. For the second, a rule issued by the Secretary of Health
Medicaid funding, the Court allowed the mandate to go into effect. See Biden
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In this case, the plaintiffs challenge the other two mandates. One
compels each business contracting with the federal government to require its
Reg. 50,985 (Sept. 9, 2021). Because that order has been enjoined
(S.D. Ga. Dec. 7, 2021), this court declines to grant any further preliminary
relief. The other mandate requires that all federal employees be vaccinated—
Exec. Order No. 14043, Requiring Coronavirus Disease 2019 Vaccination for
worker mandate].
announced that agencies should wait until after the new year. See Rebecca
Shabad, et. al, Biden administration won’t take action against unvaccinated
federal workers until next year, NBC News (Nov. 29, 2021).1 The court
1 Available at https://www.nbcnews.com/politics/white-house/biden-
administration-delay-enforcement-federal-worker-vaccine-mandate-until-next-
n1284963.
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is now imminent.
challenged in several courts across the country, including this one. See
Rodden v. Fauci, No. 3:21-CV-317, 2021 WL 5545234 (S.D. Tex. Nov. 27,
2021). Most of those challenges have fallen short due to procedural missteps
2021) (denied because plaintiff tried to directly enjoin the President and did
This case was filed by Feds for Medical Freedom, Local 918, and
various individual plaintiffs on December 21. Dkt. 1. The next day, the
would not consider preliminary relief on Executive Order No. 14042 while
the nationwide injunction was in effect. Dkt. 14, Hrg. Tr. 7:8–8:11. The court
then convened a telephonic oral argument on January 13, shortly before the
Dkt. 31. At that hearing, both sides agreed that the soonest any plaintiff might
face discipline would be January 21. Dkt. 31, Hrg. Tr. 4:11–5:5.
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II
Jurisdiction
that the Civil Service Reform Act precludes review and that the plaintiffs’
“Under the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et
seq., certain federal employees may obtain administrative and judicial review
exclusive means of relief, precludes the plaintiffs’ claims in this case. Dkt. 21
Unfortunately, the CSRA does not define “working conditions.” But the
interpretation that courts have given that term would not encompass a
Rather, “these courts have determined that the term ‘working conditions’
2Throughout this memorandum opinion, the court will refer to all the
defendants, collectively, as “the government.”
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generally refers to the daily, concrete parameters of a job, for example, hours,
resources.” Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 367
(D.D.C. 2020).
The government also argues that the CSRA applies “to hypothetical
in pay, or furloughs. See id. Indeed, neither the Merit Systems Protection
Board (the administrative body charged with implementing the CSRA) nor
the Federal Circuit (which hears CSRA appeals) has jurisdiction until there
3 The government relies on two Fifth Circuit cases as support for its
contention that the CSRA applies to the plaintiffs’ claims in this case. But in both
of those cases, unlike this one, the plaintiffs had already suffered an adverse
employment action and were not seeking prospective relief. See Rollins v. Marsh,
937 F.2d 134, 136 (5th Cir. 1991); Broadway v. Block, 694 F.2d 979, 980–81 (5th
Cir. 1982). Moreover, the D.C. Circuit has held repeatedly that pre-enforcement
challenges to government-wide policies—such as the mandates at issue here—do
not fall within the scheme of the CSRA. See, e.g., Nat'l Treasury Emps. Union v.
Devine, 733 F.2d 114, 117 n.8 (D.C. Cir. 1984) (allowing “preenforcement judicial
review of rules” over CSRA objections); Nat’l Fed’n of Fed. Emps. v. Weinberger,
818 F.2d, 935, 940 n.6 (D.C. Cir. 1987) (discussing the right of federal employees
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Finally, central to the Supreme Court’s holding in Elgin was the idea
“meaningful review” of the discipline they endure. Elgin, 567 U.S. at 10. But
compel them to “to bet the farm by taking the violative action before testing
the validity of the law.” Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S.
477, 490 (2010) (cleaned up). As the Fifth Circuit has held, the choice
Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021). To deny the
court, is to deny them meaningful review. The CSRA does not deprive the
2. Ripeness
The government also argues that the court lacks jurisdiction because
none of the plaintiffs’ claims are ripe. See Dkt. 21 at 12–14. Some of the
from the mandate—are indeed at least arguably unripe. See Rodden, 2021
to seek injunctive relief through the courts where agencies cannot act); Nat'l
Treasury Emps. Union v. Horner, 854 F.2d 490, 497 (D.C. Cir. 1988) (allowing
judicial review for employees who did not have access to the Merit Systems
Protection Board).
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unresolved are as yet “too speculative”).4 But the government insists that
even plaintiffs who have not claimed exemptions do not have ripe claims
The government pushes the ripeness doctrine too far. Absent a valid
exemption request, at least some plaintiffs face an inevitable firing. See, e.g.,
provide evidence that he is fully vaccinated “will not be tolerated”). The court
process will be. Many plaintiffs have not only declined to assert any
exemption but have also submitted affidavits swearing they will not. The
court takes them at their word. Many of these plaintiffs already have received
4 There is some dispute as to whether some plaintiffs who have asked for an
exemption are in danger of being disciplined even while their exemption requests
are still pending. Though in Rodden this court ruled that plaintiffs who had
claimed exemptions did not yet face imminent harm, that ruling was based largely
on the specific representations of the agencies for which those plaintiffs worked
that there would be no discipline before the exemption claims were resolved. But
because there are plaintiffs here who have not claimed exemptions, the court need
not sort out that dispute.
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the threat a plaintiff faces must be “actual and imminent, not conjectural or
hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). And
injury is not just possible, but likely.” June Med. Servs. L.L.C. v. Russo, 140
S. Ct. 2103, 2176 (2020) (Thomas, J., dissenting). Because at least some of
the plaintiffs have met that burden, the government’s ripeness allegations
III
Injunctive Relief
awarded upon a clear showing that the plaintiff is entitled to such relief.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff
preliminary relief, that the balance of equities tips in his favor, and that an
sparingly, the court should be convinced the plaintiffs face irreparable harm
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before awarding it. See Booth v. Galveston Cnty, No. 3:18-CV-00104, 2019
As noted above, the Fifth Circuit has already determined that the
Hobson’s choice employees face between “their job(s) and their jab(s)”
The Fifth Circuit has also held that the reputational injury and lost
wages employees experience when they lose their jobs “do not necessarily
constitute irreparable harm.” Burgess v. Fed. Deposit Ins. Corp., 871 F.3d
297, 304 (5th Cir. 2017). But when an unlawful order bars those employees
The plaintiffs have shown that in the absence of preliminary relief, they
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The court does not decide today the ultimate issue of whether the
must address whether the claim is likely to succeed on the merits. The
plaintiffs’ arguments fall into two categories: (1) that the President’s action
was ultra vires as there is no statute authorizing him to issue the mandate
and the inherent authority he enjoys under Article II is not sufficient, and (2)
a. Ultra vires
• Statutory authority
“admission . . . into the civil service.” 5 U.S.C. § 3301. The statutory text
other courts have already held that whatever authority the provision does
WL 5587446, at *7 (E.D. Ky. Nov. 30, 2021), aff’d, No. 21-6147, 2022 WL
broad until one reads the next sentence: “The rules shall provide, as nearly
of positions from the competitive service; and (2) necessary exceptions from
the provisions of sections 2951, 3304(a), 3321, 7202, and 7203 of this title.”
that the “rules” the President may prescribe under § 3302 are quite limited.
For example, he may exempt certain employees from civil-service rules and
from certain reports and examinations, and he may prohibit marital and
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disability discrimination within the civil service. But not even a generous
which provides in its entirety: “The President may prescribe regulations for
But the plaintiffs argue that rather than regulate “conduct,” the federal-
with the plaintiffs that under § 7301, it must be workplace conduct before
the President may regulate it. Any broader reading would allow the President
workers outside the context of their employment. Neither the plain language
of § 7301 nor any traditional notion of personal liberty would tolerate such a
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question became a lot clearer after the Supreme Court’s ruling in NFIB
earlier this month. There, the Court held that the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 15 et seq., allows OSHA “to set workplace
safety standards,” but “not broad public health measures.” NFIB, 595 U.S.
___ slip op. at 6. Similarly, as noted above, § 7301 authorizes the President
their conduct in general. See 5 U.S.C. § 7301. And in NFIB, the Supreme
Court specifically held that COVID-19 is not a workplace risk, but rather a
“universal risk” that is “no different from the day-to-day dangers that all face
595 U.S. ___ slip op. at 6. Accordingly, the Court held, requiring employees
that same logic to the President’s authority under § 7301 means he cannot
employment.
Loc. 200 United v. Trump, 419 F. Supp. 3d 612, 621 (W.D.N.Y. 2019), aff'd,
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975 F.3d 150 (2d Cir. 2020). But the Supreme Court has expressly held that
means the President was without statutory authority to issue the federal-
worker mandate.
• Constitutional authority
Though the government argues §§ 3301, 3302, and 7301 evince the
27. Article II, the government maintains, gives the President all the power he
federal employees. As Chief Judge Sutton of the Sixth Circuit has noted, no
arm of the federal government has ever asserted such power. See In re MCP
No. 165, OSHA Interim Final Rule: COVID-19 Vaccination & Testing, 20
F.4th 264, 289 (6th Cir. 2021) (Sutton, C.J., dissenting from denial of initial
Accounting Oversight Board, 561 U.S. 477 (2010), but that case concerns
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pursuant to the laws of the United States,” not federal employees in general.
Id. at 486 (cleaned up). Moreover, the Free Enterprise Fund Court itself
acknowledges that the power Article II gives the President over federal
And what is that limit? As the court has already noted, Congress
workplace conduct. But if the court is wrong and the President indeed has
Kentucky v. Biden, No. 21-6147, 2022 WL 43178, at *15 (6th Cir. Jan. 5,
2022). Is it a “de facto police power”? Id. The government has offered no
answer—no limiting principle to the reach of the power they insist the
President enjoys. For its part, this court will say only this: however extensive
b. APA review
The plaintiffs argue that even if the President had the authority to issue
arbitrarily and capriciously implementing it. Dkt. 3 at 16–25. While the court
need not reach this question, as it has already determined the federal-worker
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that, if the President had authority to issue this order, this case seems to
present no reviewable agency action under the APA. The Supreme Court held
the APA. 505 U.S. 788, 800–01 (1992). But the plaintiffs seem to argue that
the order itself is then vulnerable to review. That is not the law. To hold
capricious standard. But the plaintiffs have not challenged any discretionary
itself.6 Accordingly, there is nothing for the court to review under the APA.
6 The court is convinced that the best reading of the APA in light of Franklin
is to allow APA review only when the challenged action is discretionary. See
William Powell, Policing Executive Teamwork: Rescuing the APA from
Presidential Administration, 85 MO. L. REV. 71, 121 (2020).
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Finally, the court weighs the plaintiffs’ interest against that of the
government and the public. When the government is the party against whom
an injunction is sought, the consideration of its interest and that of the public
hopes to slow the virus’s spread. But an overwhelming majority of the federal
even for the federal agency with the lowest vaccination rate, the portion of
employees who have received at least one COVID-19 vaccine dose exceeds 88
government has not shown that an injunction in this case will have any
serious detrimental effect on its fight to stop COVID-19. Moreover, any harm
7 Available at https://www.whitehouse.gov/omb/briefing-room/2021/12/
09/update-on-implementation-of-covid-%e2%81%a019-vaccination-requirement
-for-federal-employees/.
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While vaccines are undoubtedly the best way to avoid serious illness
from COVID-19, there is no reason to believe that the public interest cannot
be served via less restrictive measures than the mandate, such as masking,
interestingly, that even full-time remote federal workers are not exempt from
own convictions.” OSHA, 17 F.4th at 618. The court added that the
Id. All in all, this court has determined that the balance of the equities tips in
the plaintiffs’ favor, and that enjoining the federal-worker mandate is in the
public interest.
IV
Scope
York, 140 S. Ct. 599, 601 (2020) (Gorsuch, J., concurring); see also Trump
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v. Hawaii, 138 S. Ct. 2393, 2428–29 (2018) (Thomas, J., concurring). But it
does not seem that tailoring relief is practical in this case. The lead plaintiff,
Feds for Medical Freedom, has more than 6,000 members spread across
every state and in nearly every federal agency, and is actively adding new
members. The court fears that “limiting the relief to only those before [it]
would prove unwieldy and would only cause more confusion.” Georgia, 2021
WL 5779939, at *12. So, “on the unique facts before it,” the court believes the
* * *
The court GRANTS IN PART and DENIES IN PART the plaintiffs’
enforcing Executive Order 14043 until this case is resolved on the merits.
___________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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