United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals
Fifth Circuit

___________ FILED
February 9, 2022
No. 22-40043 Lyle W. Cayce
___________ Clerk

Feds for Medical Freedom; Local 918, American

Federation of Government Employees; Highland
Engineering, Incorporated; Raymond A. Beebe, Jr.; John
Armbrust; et al.,

Plaintiffs—Appellees,

versus

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.
______________________________

Appeal from the United States District Court

for the Southern District of Texas
USDC No. 3:21-CV-356
______________________________

Before Smith, Higginson, and Willett, Circuit Judges.

Per Curiam:
IT IS ORDERED that Appellants’ opposed motion to stay the
injunction pending appeal is CARRIED WITH THE CASE. This matter
is expedited to the next available randomly designated regular oral argument
 No. 22-40043

panel. The Clerk is directed to issue a schedule for expedited briefing. The
merits panel, once identified, will be free, in its discretion, to rule
immediately on the motion to stay or await oral argument.

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Stephen A. Higginson, Circuit Judge, dissenting:

In September 2021, President Biden issued Executive Order No.
14043, which, subject to legally required exemptions, directs federal agencies
to require their employees to be immunized against COVID-19, a disease that
has killed nearly one million people in the United States and over five million
worldwide. Though a dozen district courts have rejected requests to enjoin
this order, 1 a single district judge in the Southern District of Texas, in a 20-
page opinion, 2 issued a nationwide preliminary injunction against the
President’s exercise of authority over Article II employees. Because I would
grant the Government’s motion to stay that injunction pending appeal, I
respectfully dissent from the majority’s decision not to resolve this
emergency matter. 3

1
See Brnovich v. Biden, No. CV-21-1568, 2022 WL 252396 (D. Ariz. Jan. 27, 2022);
Oklahoma v. Biden, No. CIV-21-1136, 2021 WL 6126230 (W.D. Okla. Dec. 28, 2021); Brass
v. Biden, No. 21-cv-2778, 2021 WL 6498143 (D. Colo. Dec. 23, 2021) (report and
recommendation), adopted, 2022 WL 136903 (D. Colo. Jan. 14, 2022); AFGE Local 501 v.
Biden, No. 21-23828-CIV, 2021 WL 6551602 (S.D. Fla. Dec. 22, 2021); Donovan v. Vance,
No. 21-CV-5148, 2021 WL 5979250 (E.D. Wash. Dec. 17, 2021); McCray v. Biden, No. 21-
2882, 2021 WL 5823801 (D.D.C. Dec. 7, 2021); Navy Seal 1 v. Biden, No. 21-cv2429, 2021
WL 5448970 (M.D. Fla. Nov. 22, 2021); Rydie v. Biden, No. 21-2696, 2021 WL 5416545
(D. Md. Nov. 19, 2021); Altschuld v. Raimondo, No. 21-cv-2779, 2021 WL 6113563 (D.D.C.
Nov. 8, 2021); Church v. Biden, No. 21-2815, 2021 WL 5179215 (D.D.C. Nov. 8, 2021);
Smith v. Biden, No. 21-cv-19457, 2021 WL 5195688 (D.N.J. Nov. 8, 2021); Foley v. Biden,
No. 21-cv-1098, ECF No. 18 (N.D. Tex. Oct. 6, 2021).
2
Feds for Med. Freedom v. Biden, No. 3:21-CV-356, 2022 WL 188329 (S.D. Tex.
Jan. 21, 2022).
3
The district court issued its preliminary injunction on January 21. The
Government moved to stay that order on January 28. The district court refused to rule on
that motion. The Government, presumably with Solicitor General approval, then moved
this court for a stay on February 4. Today, our court too refuses to rule. Thus, a presidential
order affecting millions of federal employees has been enjoined nationwide, yet two
separate federal courts have failed to rule on the Government’s emergency request for a
stay. The only court that can now provide timely relief is the Supreme Court.

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I.
When considering whether to grant a stay, “a court considers four
factors: ‘(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where the public
interest lies.’” Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v.
Braunskill, 481 U.S. 770, 776 (1987)). In this case, all four factors favor
granting a stay.
II.
The Government has made a strong showing that it is likely to succeed
on the merits, for at least three independent reasons.
A.
As a threshold matter, the Government is likely to succeed in
demonstrating on appeal that the district court lacks jurisdiction over this
case. Congress requires covered federal employees to raise their workplace
grievances through the administrative procedures set forth in the Civil
Service Reform Act (CSRA). As the Supreme Court has explained, “[g]iven
the painstaking detail with which the CSRA sets out the method for covered
employees to obtain review of adverse employment actions, it is fairly
discernible that Congress intended to deny such employees an additional
avenue of review in district court.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 11-
12 (2012); see also Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991)
(describing the CSRA as establishing “the comprehensive and exclusive
procedures for settling work-related controversies between federal civil-
service employees and the federal government”); 5 U.S.C. §§ 7512, 7513(d),
7703(b)(1) (making certain adverse employment actions against federal
employees reviewable by Merit Systems Protection Board and Federal

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Circuit); id. §§ 1214(a)(3), 2302 (review scheme for less severe “prohibited
personnel practice[s]”). For this reason alone, I would grant the stay. 4
B.
Even if we were to ultimately determine that the district court has
jurisdiction to hear this case, the Government is likely to succeed in showing
that the President has authority to promulgate this executive order pertaining
to the federal executive workforce.
“Under our Constitution, the ‘executive Power’—all of it—is ‘vested
in a President,’ who must ‘take Care that the Laws be faithfully executed.’”
Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020)
(quoting U.S. Const. art. II, § 1, cl. 1; id. § 3). The President’s executive
power has long been understood to include “general administrative control
of those executing the laws.” Id. at 2197-98 (quoting Myers v. United States,
272 U.S. 52, 163-64 (1926)). Accordingly, the President “has the right to
prescribe the qualifications of [Executive Branch] employees and to attach
conditions to their employment.” Friedman v. Schwellenbach, 159 F.2d 22, 24
(D.C. Cir. 1946); see also Old Dominion Branch No. 496, Nat. Ass’n of Letter
Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 n.5 (1974) (noting “the
President’s responsibility for the efficient operation of the Executive
Branch”); Crandon v. United States, 494 U.S. 152, 180 (1990) (Scalia, J.,
concurring in the judgment) (describing “the President’s discretion-laden
power” to regulate the Executive Branch under 5 U.S.C. § 7301); Nat’l

4
Though the district court stated that the D.C. Circuit permits “pre-enforcement
challenges to government-wide policies,” the cases cited for this proposition all
significantly pre-date Elgin. Allowing pre-enforcement challenges in district courts while
requiring employees who experience actual employment actions to challenge those actions
under the CSRA “would reintroduce the very potential for inconsistent decisionmaking
and duplicative judicial review that the CSRA was designed to avoid.” Elgin, 567 U.S. at
14.

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Treasury Emps. Union v. Bush, 891 F.2d 99 (5th Cir. 1989) (upholding
President Reagan’s executive order authorizing random drug testing of
certain federal employees). Thus, the President, as head of the federal
executive workforce, has authority to establish the same immunization
requirement that many private employers have reasonably imposed to ensure
workplace safety and prevent workplace disruptions caused by COVID-19.
The district court rejected the above argument as “a bridge too far,”
given “the current state of the law as just recently expressed by the Supreme
Court” in NFIB v. OSHA, 142 S. Ct. 661 (2022), and Biden v. Missouri, 142
S. Ct. 647 (2022). However, the district court misapprehended the single,
animating principle that all Justices embraced in these decisions. As Justice
Gorsuch explained in his NFIB concurrence, “The central question we face
today is: Who decides?” 142 S. Ct at 667 (Gorsuch, J., concurring). In NFIB,
the Court stayed an immunization requirement that unelected agency
officials imposed on private employers that do not receive federal funding,
explaining that “[a]dministrative agencies are creatures of statute” and that
the Occupational Safety and Health Act does not “plainly authorize[] the
Secretary’s [immunization or testing] mandate.” 142 S. Ct. at 665.
Comparatively, in Biden v. Missouri, which involved an immunization
requirement that unelected agency officials imposed on the staff of healthcare
facilities receiving Medicare and Medicaid funding, the Court concluded that
“the Secretary’s rule falls within the authorities that Congress has conferred
upon him.” 142 S. Ct. at 652. Notably, even the dissenting Justices in that
case acknowledged that “[v]accine mandates . . . fall squarely within a State’s
police power.” Id. at 658 (Thomas, J., dissenting); see also NFIB v. OSHA,
142 S. Ct at 667 (Gorsuch, J., concurring) (“There is no question that state
and local authorities possess considerable power to regulate public health.”).
Thus, in these two cases, the Court gave a consensus answer to Justice
Gorsuch’s question: it is elected, democratically-accountable officials,

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including members of Congress 5 and state legislators, who have authority to

decide—and answer for—the infection-fighting measures that they impose,
including immunization requirements, such as mandatory smallpox
vaccination, that our country has utilized for centuries. See Jacobson v.
Massachusetts, 197 U.S. 11 (1905) (upholding the authority of states to enforce
compulsory vaccination laws). 6
The President is not an unelected administrator. He is instead the
head of a co-equal branch of government and the most singularly accountable
elected official in the country. This federal workplace safety order displaces
no state police powers and coerces no private sector employers. Instead,
consistent with his Article II duty to “take Care that the Laws be faithfully
executed,” the President is performing his role as CEO of the federal
workforce, 7 taking executive action in order to keep open essential

5
Cf. 8 U.S.C. § 1182(a)(1)(A)(ii) (statutory requirement that any alien “who seeks
admission as an immigrant” must “receive[] vaccination against vaccine-preventable
diseases,” including “mumps, measles, rubella, polio, tetanus and diphtheria toxoids,
pertussis, influenza type B and hepatitis B”).
6
Indeed, executive immunization requirements predate the birth of this country,
with George Washington famously requiring members of the Continental Army to be
inoculated against smallpox. See Letter from George Washington to William Shippen, Jr.
(Feb. 6, 1777), in 8 THE PAPERS OF GEORGE WASHINGTON, REVOLUTIONARY
WAR SERIES, 6 JANUARY 1777 - 27 MARCH 1777, 264 (Frank E. Grizzard, Jr., ed.)
(1998) (“Finding the small pox to be spreading much and fearing that no precaution can
prevent it from running thro’ the whole of our Army, I have determined that the troops
shall be inoculated.”).
7
Notably, in a very recent survey of nearly 500 employers, the employee benefits
consultancy Mercer “found 44% with a [vaccine] mandate currently in place and 6%
planning to implement one, with another 9% still considering it.” Beth Umland and Mary
Kay O’Neill, Worksite Vaccine Requirements in the Wake of the OSHA ETS (Jan. 27, 2022),
https://www.mercer.us/our-thinking/healthcare/worksite-vaccine-requirements-in-the-
wake-of-the-osha-ets.html.

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government buildings; 8 to maintain the provision of vital government

services, such as the Transportation Security Administration; and to prevent
unvaccinated federal employees from infecting co-workers or members of the
public who, whether because of age or infirmity, might be highly vulnerable
to hospitalization and death.
Federal employees that disagree with the content of Executive Order
14043 retain the right to claim an exemption, to leave the government’s
employment, to collectively bargain, and to challenge the order through the
CSRA. And, of course, any American that disagrees with the content of the
order has the right to vote the President out of office. Thus, consistent with
NFIB v. OSHA and Biden v. Missouri, accountability for the federal executive
employee immunization requirement is open, obvious, and vested in one
elected, democratically-accountable official. These two cases do not cast
doubt on, but rather determinatively confirm, the President’s power to issue
Executive Order No. 14043.
C.
In addition to the issues discussed above, the government is also likely
to succeed in showing that the plaintiffs have not met their burden for
obtaining a preliminary injunction. A plaintiff seeking such an injunction
must establish, among other requirements, “that he is likely to suffer
irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). However, even if the plaintiffs were
to lose their jobs as a result of this order, 9 we have explained in a previous

8
In contrast to many of the essential services and executive agencies that the
President oversees, Article III institutions such as this court and the Supreme Court can
close our buildings to the public, allowing us to rely on other, less effective infection-
fighting measures, such as mandatory mask-wearing and testing.
9
Notably, the district court did not identify a single plaintiff employee who, at the
time the complaint was filed, 1) worked for an agency that had implemented the President’s

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case involving “discharge under the federal civil service laws” that “[i]t is
practically universal jurisprudence in labor relations in this country that there
is an adequate remedy for individual wrongful discharge after the fact of
discharge”: “reinstatement and back pay.” Garcia v. United States, 680 F.2d
29, 31-32 (5th Cir. 1982). The CSRA makes this remedy available to the
plaintiffs. See 5 U.S.C. § 7118(a)(7)(C). Accordingly, the plaintiffs cannot
show that they are likely to suffer irreparable harm in the absence of
preliminary relief.
* * *
For these three independent reasons, the Government has made a
strong showing that its appeal is likely to succeed on the merits.
III.
In addition to likelihood of success on the merits, the other factors for
a stay are also met in this case. As stated above, a court considering whether
to grant a stay must consider not only “(1) whether the stay applicant has
made a strong showing that he is likely to succeed on the merits” but also
“(2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Nken,
556 U.S. at 426.
Looking at the second factor, the district court’s injunction places
federal employees at a greater risk of hospitalization and death, not to
mention being unable to work because of illness or the need to quarantine. As
Jason Miller, the Deputy Director for Management at the Office of

immunization requirement, 2) had been denied an exemption, and 3) faced imminent

discipline or discharge. Cf. Brnovich, 2022 WL 252396, at *6-8 (concluding that a U.S.
Marshal’s challenge to the federal employee immunization requirement was unripe).

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Management and Budget, explained in a comprehensive declaration

submitted to the district court, the Government’s operational efficiency will
be greatly impeded if this executive order cannot go into effect:
In sum, each day that the vaccination requirement for Federal
employees is delayed requires agencies that provide critical
support for U.S. foreign policy, global financial systems,
American infrastructure, and the pandemic response to devote
additional time and resources to ensuring the safety of the
Federal workforce above and beyond the substantial time and
resources already devoted to these efforts—time and resources
that would otherwise be spent doing critical mission function
to the benefit of the American people.
Thus, the Government will be irreparably injured absent a stay.
Regarding the third factor, the issuance of a stay will not substantially
injure the other parties in this proceeding. Even assuming that this executive
order injures any plaintiff—as previously noted, the district court did not
identify any particular plaintiff that faces imminent discipline or discharge—
that injury can be remedied through reinstatement and backpay, for the
reasons explained in supra Part II.C.
Finally, the public has an indisputable interest not only in the
Government’s operational efficiency but also in stemming the spread
through the federal executive workforce, and beyond, of a highly contagious,
deadly disease. Immunization requirements have proven extremely effective
in the private sector. For example, the CEO of Tyson Foods has explained
that even though less than half of the company’s employees were vaccinated
when Tyson announced its immunization requirement in early August, by
late October “over 96% of our active team members [were] vaccinated—or

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nearly 60,000 more than when we made the announcement.” 10 Similarly,

according to the CEO of United Airlines, “[p]rior to our vaccine
requirement, tragically, more than one United employee on average *per
week* was dying from COVID,” but “we’ve now gone eight straight weeks
with zero COVID-related deaths among our vaccinated employees.” 11
Though the district court asserted, without evidence or citation, that “there
is no reason to believe that the public interest cannot be served via less
restrictive measures than the mandate” and that “[s]topping the spread of
COVID-19 will not be achieved by overbroad policies like the federal-worker
mandate,” the public interest is not served by a single Article III district
judge, lacking public health expertise and made unaccountable through life
tenure, telling the President of the United States, in his capacity as CEO of
the federal workforce, that he cannot take the same lifesaving workplace
safety measures as these private sector CEOs.
IV.
For the foregoing reasons, I would grant the stay.
However, even if I were to conclude that the motion should be denied
with respect to these plaintiffs, I would grant the Government’s motion
insofar as the district court’s nationwide preliminary injunction applies to
any person or entity that is not either a named plaintiff or an individual
possessing, at the time the complaint was filed, bona fide indicia of
membership in one of the plaintiff organizations. As we recently explained,

10
Tyson Foods to Require COVID-19 Vaccinations for its U.S. Workforce (August
3, 2021), https://www.tysonfoods.com/news/news-releases/2021/8/tyson-foods-
require-covid-19-vaccinations-its-us-workforce; Over 96% of Tyson Foods’ Active
Workforce is Vaccinated (October 26, 2021), https://www.tysonfoods.com/news/news-
releases/2021/10/over-96-tyson-foods-active-workforce-vaccinated.
11
A Letter to United Employees from CEO Scott Kirby (Jan. 11, 2022),
https://www.united.com/en/us/newsroom/announcements/scott-kirby-employee-note.

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nationwide injunctions “can constitute ‘rushed, high-stake, low-information

decisions,’ while more limited equitable relief can be beneficial.” Louisiana
v. Becerra, 20 F.4th 260, 264 (5th Cir. 2021) (quoting Department of
Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J.,
concurring in the grant of a stay)); see also Trump v. Hawaii, 138 S. Ct. 2392,
2425 (2018) (Thomas, J., concurring) (observing that nationwide injunctions
“are beginning to take a toll on the federal court system—preventing legal
questions from percolating through the federal courts, encouraging forum
shopping, and making every case a national emergency for the courts and for
the Executive Branch”). 12
Cognizant of the separation of powers, as well as our judicial ignorance
of the immense task of running the executive branch of government, for
which the President, informed by public health experts, is solely accountable,
I would not allow an unelected lower court to impose its Article III fiat on
millions of Article II employees, above all when a dozen other lower courts
have declined to enjoin the President’s order.

12
See generally Samuel L. Bray, Multiple Chancellors: Reforming the National
Injunction, 131 Harv. L. Rev. 417, 421, 424 (2017) (arguing that nationwide injunctions
lead to “forum shopping, worse decisionmaking, a risk of conflicting injunctions, and
tension with other doctrines and practices of the federal courts” and that, in accordance
with both equitable principles and the scope of the Article III judicial power, “federal
courts should issue injunctions that control a federal defendant’s conduct only with respect
to the plaintiff”).

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