After a three-judge panel earlier this year ruled in favor of the Joe Biden administration’s executive order requiring virtually all federal employees be vaccinated against COVID-19, the entire Fifth U.S. Circuit Court of Appeals has agreed to rehear the case.
In a two-page order published Monday, the 5th Circuit said it has agreed to grant the petition from a group called Feds for Medical Freedom seeking a rehearing “en banc,” meaning all 17 judges will rehear the case and decide whether to uphold or reverse the panel’s finding.
“A member of the court having requested a poll on the petition for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor … IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed,” according to the order.
Until the full appeals court issues its decision, the prior April 7 ruling in favor of the Biden administration is vacated, the 5th Circuit said Monday. The three-judge panel had ruled, two-to-one, that a federal district judge in Texas for various reasons lacked jurisdiction to hear the case or issue a preliminary injunction.
The New Orleans-based 5th Circuit hears appeals from district courts in Alabama, Florida, Georgia, Texas, Louisiana and Mississippi. “En banc” is a French-derived legal term meaning “in the bench,” according to the Ballotpedia website.
En banc hearings are fairly rare, according to the 5th Circuit website. “The historical average of successful petitions for panel rehearing is less than 5%,” the court said in its instructions to attorneys. “Even fewer petitions for en banc rehearing are granted, generally less than 3%.”
The Department of Energy and its Office of Environmental Management have said well over 90% of all federal employees and contract workers are vaccinated against the potentially deadly disease.
