Topline
Federal workers who want to challenge President Joe Biden’s Covid-19 vaccine mandate should turn to the Merit Systems Protection Board (MSPB), an agency created to protect the rights of federal employees, rather than going through the courts, a Virginia appeals court said.
President Joe Biden receives a fourth dose of Pfizer-BioNTech’s Covid-19 vaccine in the White … [+]
Key Facts
In a unanimous decision, a 4th Circuit Court of Appeals three-judge panel ordered a lower court to dismiss a case lodged by Department of Defense employee Israel Rydie and Food and Drug Administration employee Elizabeth Fleming claiming that the vaccine mandate is unconstitutional.
The 1978 Civil Service Reform Act allows federal employees who have been disciplined to appeal to the MSPB, and strips courts of the jurisdiction to hear such cases, including Rydie and Fleming’s case, the panel said.
However, federal employees can request a review of an MSPB’s decisions by a federal appeals court, the panel said.
The court’s decision echoed an April 7 judgment by the 5th Circuit Court of Appeals that overturned a previous injunction against the mandate, finding that federal employees who sought to challenge the mandate should have gone to the MSPB instead of to the courts.
Rydie and Fleming have not disclosed their vaccination statuses and do not plan to file for an exemption, the panel said.
A lawyer representing Rydie and Fleming did not immediately respond to a request for comment.
Key Background
In September, following the coronavirus delta wave variant, Biden announced a Covid-19 vaccine mandate for the U.S.’s more than 3.5 million federal employees. Employees who do not fully vaccinate face possible suspension or dismissal from their jobs. However, limited exemptions are available for people with disabilities such as autoimmune disorders and for people who refuse to vaccinate due to a “sincerely held religious, belief, practice or observance.” This mandate and a similar mandate requiring all military personnel to vaccinate have been subject to repeated legal challenges. January 21, U.S. District Judge Jeffrey Vincent Brown issued a preliminary injunction against Biden’s mandate on the grounds that Biden allegedly exceeded his authority by putting the policy in place without congressional approval. Though Brown’s injunction was blocked April 7 by the 4th Circuit Court of Appeals, the White House reportedly told federal agencies to hold off on implementing the mandate in order to give time for necessary “procedural steps.”
Contra
Relatively few federal employees have refused to vaccinate. In January, the White House announced that 97.2% of federal workers had complied with the mandate.
Tangent
The panel that decided unanimously to order the dismissal of Rydie and Fleming’s lawsuit included judges J. Harvie Wilkinson III, who was nominated to the court by Ronald Reagan, Albert Diaz, who was nominated by Barack Obama, and Julius Richardson, who was nominated by Donald Trump.
Further Reading
“Appeals Court Restores Biden’s Federal Employee Vaccine Mandate” (Forbes)
Source: https://www.forbes.com/sites/zacharysmith/2022/04/19/federal-workers-cant-sue-over-bidens-vaccine-mandate-appeals-court-says/