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.
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.
