Appeals court refuses to reinstate federal employee vaccine mandate while it reviews case

By Tierney Sneed, CNN

A federal appeals court said Wednesday it would not reinstate President Joe Biden‘s Covid-19 vaccine mandate for federal employees while it reviews a lower court’s order putting the requirement on hold — potentially setting the stage for the case to go to the Supreme Court.

The 5th US Circuit Court of Appeals did not explain its reasoning in the unsigned order that said the court was expediting its review of the case. The court said the Biden administration’s request to put the lower court’s ruling on hold was being “carried with the case,” signaling that the appeals court would not rule on the request until it had conducted a fuller review of the case.

The mandate, which applied to some 3.5 million federal workers, required full vaccination by the end of November, although the administration said it would first counsel employees who resisted vaccination rather than discipline or fire them. On December 9, the Office of Management and Budget said the federal workforce was 97.2% compliant with the mandate — a figure that included people who had pending or approved exemptions.

Last month, a federal judge in Texas blocked the administration from enforcing the requirement, calling the mandate an overstep of presidential authority and citing a Supreme Court decision to strike down a separate administration mandate that had applied to private-sector workers.

One judge on the appellate panel, US Circuit Judge Stephen Higginson, dissented.

“[T]he 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,” wrote Higginson, an Obama appointee.

Circuit Judges Jerry Smith, a Reagan appointee, and Don Willett, a Trump appointee, were in the panel’s majority.

As Higginson noted in his scathing 10-page dissent, 12 other federal courts had rejected requests to block the mandate before Judge Jeffrey Vincent Brown granted it in January. He also called out the panel majority for failing to rule directly on the government’s emergency request to put Brown’s injunction on hold.

“The only court that can now provide timely relief is the Supreme Court,” Higginson wrote.

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CNN’s David Shortell contributed to this report.