During a federal appeals court hearing Tuesday on mandatory COVID-19 vaccination for most federal employees, the Department of Justice attorney said a federal district judge was wrong to shut down the policy spawned by a September 2021 executive order just as an administrative board was about to start ruling on requests for exemptions.
Charles Scarborough, the government attorney arguing the case, also told the entire Fifth U.S. Circuit Court of Appeals in New Orleans that while vaccination against the original strains of COVID-19 won’t necessarily stop transmission, it still serves as the most important healthcare safeguard against workers contracting serious cases. He also argued that even if a vaccine was a 100% block against infection, the federal restraining order would prevent a president from requiring workers to take it.
President Joe Biden, acting as the CEO of the government workforce here, has a much “freer hand” to protect agency efficiency by promoting worker health than while acting as a regulator, Scarborough said.
The Fifth Circuit heard this case for the second time on Tuesday, with every judge on the court assembling in an en banc hearing for another round of oral arguments.
A panel of three appeals judges ruled in the government’s favor in April, throwing out a nationwide injunction from a trial court against Biden’s mandate. But after a majority of the fifth circuit judges decided that the entire court should decide the case, the court vacated the earlier victory for the government.
Also on Tuesday, Feds for Medical Freedom attorney Trent McCotter argued that since the case started last year in the U.S. District Court for the Southern District of Texas, the U.S. government has largely abandoned its argument that vaccinations are needed to block “workplace spread” of the virus.
Scarborough did not focus much on McCotter’s characterization of the government’s efforts and instead argued to the judges that the people represented by Feds for Medical Freedom inappropriately sued before they suffered even theoretical harm, which existing grievance systems could have addressed.
Scarborough said Federal employees opposed to taking the shot already can seek redress through the Civil Service Reform Act of 1978 that created the Merit System Protection Board, an independent, quasi-judicial agency within the executive branch. Adjudication of religious and medical exemption claims was getting underway in January when a federal judge in Galveston, Texas imposed a nationwide order temporarily blocking imposition of the mandate.
McCotter, however, said the national restraining order was neither inappropriate nor too broad because vaccine refusers work in agencies throughout the federal government and in many different states. In addition, McCotter said the vaccination policy amounted to a sweeping new regulation that affected employees’ private lives, so a pre-enforcement action was reasonable.
The Justice Department attorney drew far more questions from than the lawyer for plaintiff Feds for Medical Freedom. A playback of the roughly one-hour session can be found here.
If the government loses its appeal in the Fifth Circuit, its final resort would be to appeal to the U.S. Supreme Court, an independent branch of the federal government. The Fifth Circuit had not released an opinion from the en banc hearing as of Thursday morning. The Department of Energy has largely stopped collecting vaccination data from people who work at or visits defense nuclear and other DOE sites.
