In a 2-1 decision the 5th Circuit has ended the nationwide injunction of the President's Executive Order that mandates COVID-19 vaccination for all executive branch employees, subject to medical and religious exceptions. Feds for Medical Freedom v. Biden (5th Cir 04/07/2022) [PDF]

Several plaintiffs claimed that the President exceeded his authority, and sued in federal district court. The district court found that the plaintiffs were likely to succeed on the merits of their claim and that the equities favored them. It therefore preliminarily enjoined enforcement of the Order nationwide.

The 5th Circuit (2-1) reversed, holding that the Civil Service Reform Act of 1978 (CSRA) precluded the district court's jurisdiction.

The court pointed out that the CSRA distinguishes between employees against whom an agency has taken "final adverse action" and those for which adverse action is merely "proposed." Only those against whom an agency has taken "final adverse action" are entitled to judicial review.

The court said: "Critically, in this case, any adverse action against the plaintiffs remains 'proposed.' They are thus entitled to 'notice, representation by counsel, an opportunity to respond, and a written, reasoned decision from the agency' under § 7513(b), not administrative review under § 7513(d). In other words, the plaintiffs are 'employees to whom the CSRA denies statutory review.' Congress intended 'to entirely foreclose judicial review to' such employees."

The DISSENT argued that the "CSRA does not cover pre-enforcement employment actions, especially concerning 2.1 million federal civilian employees. The district court, therefore, had subject-matter jurisdiction to hear plaintiffs’ claims."