A federal judge in Eastern Washington, who twice allowed 314 employees at the Department of Energy’s Hanford Site to amend their complaint over government COVID-19 vaccination requirements, was justified in dismissing the case, Justice Department attorneys told the Ninth U.S. Court of Appeals Dec. 23.
Only seven of the plaintiffs in the David Donovan versus President Joe Biden case have their request for exemptions “conclusively resolved” and face any potential discipline for refusing to get vaccinated, the government lawyers said in a 79-page brief.
The seven are all contractor employees, the Justice Department said.
The other 300-plus plaintiffs, many of them Hanford security people, “face no immediate threat of injury,” which might ultimately mean termination, according to the Justice attorneys. “They nowhere allege that while their requests are pending, they are required to become vaccinated or will be subject to discipline.”
The federal government also said there are systems in place for employees who face adverse actions for vaccine refusal. The 1978 Civil Service Reform Act created an administrative and judicial review for federal employees. Federal workers can also appeal to the Merit Systems Protection Board, which can “order relief to prevailing employees, including reinstatement, backpay, and attorney’s fees.”
As for workers for DOE contractors, their disciplinary action would be determined by their companies, the government attorneys said.
The Justice Department said President Biden was justified in issuing executive orders in September 2021 to battle the COVID-19 pandemic — including one under the Federal Property and Administrative Services Act of 1949, better known as the Procurement Act.
In addition to having killed more than one million Americans, the government lawyers said the illness has caused billions of dollars of economic damages. One study estimated that between March 2020 and February 2021 the pandemic cost $138 billion in lost work hours among U.S. full-time private-sector employees, according to the Justice Department brief.
In November, lawyers for the Silent Majority Foundation, which represents the Hanford plaintiffs, filed written arguments saying U.S. District Judge Thomas Rice in Eastern Washington was mistaken in dismissing the case for procedural flaws.
The case was filed in federal district court in November 2021, with plaintiffs seeking a preliminary injunction against the vaccination requirement.