Sunday, March 26, 2023

US Appeals Court Blocks COVID-19 Vaccine Mandate for Federal Workers

A federal appeals court has halted the Biden administration’s COVID-19 vaccine mandate for federal workers nationwide.

The U.S. Court of Appeals for the Fifth Circuit in New Orleans ruled (pdf) in an en banc hearing on Thursday to keep a preliminary injunction on the COVID-19 vaccine mandate in place amid ongoing litigation over the matter.

En banc is a legal term that means a case is heard by the entire bench of a court, rather than just by a panel of judges selected from the bench.

The latest move by the full appeals court of 16 full-time judges reverses a previous ruling that was made by a smaller panel of judges from the same appeals court. That three-judge panel had ruled in April 2022 to uphold the COVID-19 vaccine mandate for federal workers.

Executive Order

President Joe Biden in September 2021 issued an executive order requiring federal workers to get COVID-19 vaccines, otherwise they would face disciplinary actions, which might include being fired. The order permitted exceptions for religious and medical reasons.

Feds for Medical Freedom, a group of about 6,000 federal workers, brought a lawsuit against the order, saying it likely exceeded the president’s authority.

U.S. District Judge Jeffrey Brown, a Trump appointee in January 2022 ordered the preliminary injunction on the vaccine mandate. At the time, the Biden administration said nearly 98 percent of covered employees had been vaccinated against COVID-19.

The case moved to the 5th Circuit. The majority ruling by a three-judge panel in April 2022 overturned Brown’s decision and determined that the plaintiffs should have taken their complaints elsewhere. Specifically, Judge Carl Stewart, a Clinton appointee, wrote in the majority decision that the Civil Service Reform Act (CSRA) of 1978 “precludes district court adjudication of federal statutory and constitutional claims.”

Under the CSRA, federal workers facing adverse actions may appeal to an entity called the Merit Systems Protection Board, which decides whether the worker was properly disciplined. If the worker prevails, the board can order an agency to reinstate the worker or undertake other measures. Employees who disagree with the board can appeal to a federal appeals court.

At the time, Judge Rhesa Barksdale, a George H.W. Bush appointee, dissented from the majority and said that Biden’s vaccine executive order doesn’t constitute an alleged adverse action subject to the CSRA.

Exceeded His Authority

The full appeals court on Thursday found that the case falls outside the jurisdiction of the CSRA because the federal workers are challenging the vaccine mandate on the grounds that Biden exceeded his authority.

The majority of the court rejected arguments from the Biden administration that the president has the same authority as a CEO of a private corporation to mandate vaccinations for its employees.

“Plaintiffs’ complaint does not challenge any personnel action reviewable under the CSRA. Nor does it challenge any personnel action they could hypothetically incur in the future,” Judge Andrew Oldham, a Trump nominee, wrote in Thursday’s opinion (pdf) for a 10-member majority. “Rather, plaintiffs claim that the President’s vaccine mandate violates the U.S. Constitution and the [Administrative Procedure Act].”

Oldham and the majority said that federal law does not apply to “private, irreversible medical decisions made in consultation with private medical professionals outside the federal workplace.”

Judge Stephen Higginson, an Obama nominee, wrote the main dissenting opinion.

“For the wrong reasons, our court correctly concludes that we do have jurisdiction,” Higginson wrote. “But contrary to a dozen federal courts—and having left a government motion to stay the district court’s injunction pending for more than a year—our court still refuses to say why the President does not have the power to regulate workplace safety for his employees.”

Moving forward, Judge Oldham noted, “When the parties proceed to the merits in the district court, the plaintiffs will have to prove that whatever injunction they request is broad enough to protect against their proven injuries and no broader.

“And the Government will have another chance to show that any permanent injunction should be narrower than the preliminary one.

“And both sides will have to grapple with the White House’s announcement that the COVID emergency will finally end on May 11, 2023.”


UK: The faltering Covid Inquiry – and how to get it back on track

The Covid Inquiry is in danger of losing public trust. Many bereaved feel they are being marginalised, hearings have been delayed, vital government documents have yet to be shared with key participants – and now it seems potential evidence is disappearing.

As a lawyer for the Covid-19 Bereaved Families for Justice, one of 28 groups involved in the first module of the inquiry, I have seen first hand how legal proceedings are already falling by the wayside.

If the inquiry does not run as openly and robustly as it should, potentially undermining its final findings, there is a risk that justice will not be served for those who mishandled our country’s response to Covid-19.

Many of the families I am working with suffered heartbreaking losses throughout the pandemic. Mothers. Fathers. Siblings. Children. Covid has claimed many people. It is only just that the loved ones of the deceased are given the answers they deserve.

The Telegraph’s Lockdown Files have already offered a unique insight into how the government handled the earlier stages of the pandemic.

They demonstrate policy being formulated on the hoof, ministers tussling to boost their own image, messages that mocked teachers and quarantined holidaymakers, and deep concerns, which were “kept out of the news,” over the impact that Eat Out to Help Out was having on Covid infections.

But they also show reasoned discussion between advisers, experts and officials. Some ministers were sensible in their proposals and policy ideas. There was sound and considered advice from the government's leading scientists, too, whether it regarded vaccines, shielding or testing. Whether this advice was appropriately followed is another matter.

It is therefore vital that the inquiry goes even further than The Telegraph in getting to the bottom of the government’s decision-making during the pandemic, in demonstrating where and how the UK got it wrong, but also where and how it got it right.

We also need to know how experts were chosen – whose advice was listened to and whose was ignored? And how were final decisions made? Was the necessary protocol in place for developing and implementing big policy proposals?

If the inquiry fails to answer these questions, crucial lessons will not be learnt, leaving future generations at risk of making the same mistakes when confronted with the next pandemic.

Inquiry ‘off to a rocky start’

It is early days for Chair Baroness Heather Hallett and her team. With just minor adjustments here and there, she will be able to correct the course of the inquiry and bring it back on track, before any real damage is done to proceedings.

The solutions I offer are straightforward and supported by many other core participant lawyers who share my frustrations.

These include providing the bereaved with a voice. There is a legal obligation to promote effective engagement of the families and others most closely affected. The Inquiry should recognise that their involvement enhances, not undermines, the process. The bereaved are eager to cooperate.

Chair Hallett indicated at the start of the hearings that the bereaved would be “front and centre” of the inquiry but many feel that they are not welcome and are being paid lip service only.

They point to the decision to not allow pen portraits – a way of commemorating the dead – during hearings. Clearly, the inquiry cannot hear from every bereaved, but that does not mean they could not hear from some.

Giving one family a day the opportunity to speak in court, for no more than five minutes, would not take up an unreasonable amount of time and, more importantly, would bring a human element to an inquiry that is at risk of getting lost in its own bureaucracy.

There is also a need for greater openness. From my experience, the inquiry team is unnecessarily secretive about the different modules, their themes and dates, and who will be involved at each stage.

We would also ask for openness from other core participants – early position statements setting out what they did right and where they concede they went wrong would save months of hearing time and millions of pounds.

It makes sense that the inquiry liaises with us. We have valuable experience that could benefit and improve proceedings. As one example, we urge Chair Hallett to agree in principle to allow the direct questioning of witnesses, instead of having to submit written questions via the inquiry team.

Lastly, more funding is needed. My clients are fortunate to have been provided financial support to scour through and analyse the vast tranche of documents related to the UK’s pandemic pandemic.

But other groups, such as Solace Women’s Aid and the TUC, have not been so lucky. In reality, they need all the help they can get if they’re to meaningfully contribute to the inquiry.

For a whole host of reasons, the Inquiry has gotten off to a rocky start. Yet the Chair is highly experienced, competent and has already shown a willingness to listen to core participants’ requests, having agreed to commission an expert who will examine pre-Covid structural racism for Module 2.

As such, I remain hopeful that Chair Hallett intends to conduct a thorough, incisive and fearless inquiry. My clients want to help her do this and I am sure that many other core participants feel the same way. Please let us help.




1 comment:

Bob Smith said...

Only after it's far, far too late and 98% are already jabbed. The government "loses" and still gets everything it wanted. The EPA does the same thing: mandate an expensive retrofit with big fines for noncompliance, then by the time they lose the lawsuit everybody has already complied because of the threats of fines.