After the government won a key legal battle last week, the U.S. Department of Justice said Monday that the Fifth U.S. Circuit Court of Appeals should allow it to enforce a presidential executive order requiring federal employees to get vaccinated against COVID-19.
On April 7 the New Orleans-based 5th Circuit overturned a nationwide preliminary injunction issued by a federal district judge in Texas that had prevented federal agencies such as the Department of Energy from enforcing President Joe Biden’s Executive Order 14043 mandating that federal employees be vaccinated against Coronavirus-2019.
“But the Court has not yet issued the mandate, and the docket entry accompanying the opinion states that the “[m]andate issue date” is May 31, 2022, the default date under Federal Rule of Appellate Procedure 41(b),” the Justice Department said in its Monday filing.
The court should “take appropriate steps” so the government may “resume implementation and enforcement of Executive Order 14043,” according to the filing. Prior to the preliminary injunction from the court in Texas, federal vaccine holdouts who did not receive a medical or religious exemption would be fired.
Government attorneys have contacted the legal team for the plaintiffs, a group called Feds for Medical Freedom, and the plaintiffs oppose the request, according to a footnote.
Hearing set next month in Hanford guards case
In a separate case, U.S. District Judge Thomas Rice will hold a hearing May 11 about a government motion to throw out an anti-vaccine lawsuit brought by hundreds of security guards and other federal and contract employees at DOE’s Hanford Site
The judge issued the order Thursday, about a week after the plaintiffs filed a motion in federal district court for Eastern Washington urging Rice to reject the government’s motion to dismiss their lawsuit, the foundational complaint of which they have now amended twice.
The Hanford vaccine objectors, represented by a group called the Silent Majority Foundation, noted the 5th Circuit has overturned the nationwide preliminary injunction against the vaccine mandate for federal employees and the Eleventh Circuit is considering whether to overturn a national injunction against Biden’s executive order for contractor employees.
“Each Plaintiff is either a federal contractor or a federal employee, subject to the COVID-19 vaccine mandate under EO 14042 or EO 14043, respectively,” according to the motion. “Most plaintiffs have maintained their jobs by obtaining temporary accommodations from their employers,” which should be made permanent, the plaintiffs argue.
Also, seven plaintiffs working for Battelle Memorial Institute’s Pacific Northwest National Laboratory, a government facility at the Hanford Site, have been terminated or placed on indefinite leave without pay, according to the filing.
The DOE and its Office of Environmental Management has said the percentage of its federal employees and contract workers vaccinated against COVID-19 is in the upper 90s.
An Environmental Management spokesperson said Thursday there were 13 confirmed, active cases of COVID-19 within the past week, down 14 from the prior week in the cleanup complex.
11th Circuit judge: Contractor vax case could end up before high court
The Joe Biden administration’s authority to order COVID-19 vaccinations for federal contract workers could ultimately be decided by the U.S. Supreme Court, one member of a three-judge panel for the Eleventh U.S. Circuit Court of Appeals said during oral arguments April 8.
“You may win the case, the Supreme Court may go with the government down the road,” Circuit Judge William Pryor Jr., told Department of Justice attorney Joshua Revesz at one point. On the other hand, Pryor said he would not be surprised “if the other side wins either.”
In an Atlanta courtroom, Revesz said the president is justified in saying agencies will contract only with companies “who protect their workers from COVID-19.” The federal government contracts with private companies for goods and services that could be delayed when sick employees infect their co-workers with the airborne virus, Revesz said.
An audio recording of the April 8 arguments was posted online Monday. The appeals court is considering whether to overturn a nationwide injunction against enforcement of the mandate handed down in December by a federal district judge in Georgia. Biden issued a set of executive orders in September that are being challenged in multiple federal courts.
“We are not suggesting vaccines are not good or effective,” Stephen Petrany of the Georgia solicitor general’s office told the appeals panel. But “what happens when you start firing people?” for not getting vaccinated under the Procurement Act, Petrany asked.
It is not clear the president has “the power to impose health conditions on a fifth of the nation’s workforce” without explicit authorization from congress, Petrany said.
Before New Year’s, Georgia, Idaho, South Carolina and certain other states along with the Associated Builders and Contractors group, successfully challenged the vaccine mandate before U.S. District Court Judge Stan Baker in Southern Georgia.
Settlement talks explored in Oak Ridge Lab case
Plaintiffs suing DOE’s prime contractor at the Oak Ridge National Laboratory in Tennessee over vaccination requirements for employees are interested in settling, according to a filing last week in federal court.
“Plaintiffs believe that this case is well-situated for settlement discussions,” according to an April 5 status report filed by U.S. District Judge Charles Atchley Jr.
The plaintiffs, six lab employees who for varying reasons refused the vaccination, propose referral to mediation by a federal magistrate “or another of the Court’s approved mediators within thirty days,” according to the judge’s report filing following an April 1 status conference on the case.
The vaccine holdouts filed a revised complaint in January after securing right-to-sue approval from the Equal Employment Opportunity Commission. The group sued in October 2021, shortly after Biden’s September executive orders.
