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Executive Orders Summaries

Federal Appeals Court Grants Temporary Reprieve to Thousands of Federal Employees Confronted with Mandatory Covid-19 Injections as a Condition of Employment

Feds for Medical Freedom, et al. v. Joseph R. Biden, Jr., et al., Case No. 3:21-cv-00356

Feb. 11, 2022

Southern District of Texas - Galveston

On Thursday, February 11, 2022, in a 2-1 decision, Judge Jeffrey Vincent Brown, writing the decision for the U.S. Circuit Court of Appeals for the Fifth Circuit, rejected the government’s request to stay a Texas court’s injunction on Biden’s federal employee mandate, EO 14043.

Judge Brown wrote he refused to “relitigate issues” which were “originally addressed in its January 21, 2022 memorandum opinion and order.” The ruling he referred to concluded President Biden exceeded his authority when he attempted to mandate Covid-19 injections for all federal workers.

Defendants in the case filed a Motion to Stay pending appeal to the court’s order of January 21, 2022, granting a preliminary injunction.

In September 2021, President Biden announced four different Covid-19-related mandates in various contexts. The mandates required businesses to compel their employees to receive Covid19 injections, and they essentially affected large segments of the U.S. workforce. In most cases, a non-compliant employee faced work-related disciplinary actions or job loss. One of the mandates, Executive Order 14043 (“E.O. 14043”), requires all federal employees to consent to receive Covid-19 injections or lose their jobs. E.O. 14043 applies to approximately 3.5 million federal workers. 

Federal workers originally had until November 22, 2021, under E.O. 14043 to receive their Covid-19 injections. The date was amended to January 21, 2022, and a new deadline has yet to be proposed.

This case was originally filed in Texas in December 2021 opposing two of the President’s four mandates. The first mandate, Executive Order 14042 (“E.O. 14042”), relates to the federal contractor portion of the suit. However, E.O. 14042 has already been enjoined nationwide, thus the court declined to enjoin that order. E.O. 14043, however, is still being considered by the courts.

Feds for Medical Freedom, the group representing the plaintiffs, is a Nevada-based, grassroots, and non-profit organization comprised of approximately 6,000 members (and growing) from various federal agencies nationwide. Some of its members include employees of the CIA, Department of Defense, and the Transportation Department. Other plaintiffs include AFGE Local 918 (a union representing employees including the Department of Homeland Security and other groups), and individual and federal contract employees. 

One of the key arguments made in the plaintiffs’ Complaint is that “the President was without statutory authority to issue the federal-worker mandate.” Judge Brown agreed. He stated in his January 21, 2021 memorandum opinion and order “folks should get vaccinated against COVID19,” but he also drew extensively from January 13, 2021, U.S. Supreme Court decision which struck down the Occupational Safety and Health Administration’s (OSHA) COVID-19 mandate for private companies with 100 or more employees. Brown stated, in part, “The Supreme Court has expressly held that a COVID-19 vaccine mandate is not an employment regulation. And that means the President was without statutory authority to issue the federal worker mandate.” 

The court also found the President’s authority is “not that broad” and that under the current state of the law -- as just recently expressed by the Supreme Court in the OSHA case – is a ‘bridge too far.’” The court consequently prohibited the E.O. 14043’s enforcement.

One plaintiff, a 100% disabled veteran and Purple Heart recipient who now works for the CIA, asserts that although his religious “accommodation” was granted in December 2021, he was effectively retaliated against and forced to take a $60,000 pay cut and accept a demotion in his work duties.

Plaintiffs have shown that in the absence of preliminary relief, they are likely to suffer irreparable harm.

Per Judge Higginson’s dissent, he wrote, “The only court that can now provide timely relief is the Supreme Court.” Many legal experts agree. 

Both parties were requested by the court to file arguments by March. 

A copy of the Complaint is attached here.

Supreme Court Blocks Biden Administration’s OSHA Mandate

Announcement by the Supreme Court Regarding the OSHA and CMS Mandates

Jan. 13, 2022

U.S. Supreme Court

On January 13, 2022, the U.S. Supreme Court in a 6-3 per curiam decision struck down the OSHA mandate requiring businesses with greater than 100 employees to mandate their employees be vaccinated or tested. The court had heard oral arguments on January 7, 2022.

Today’s ruling strikes down the Biden Administration’s rule, and the Emergency Temporary Standard (ETS), on the basis that the Secretary of Labor “lacked authority to impose the mandate” and the Applicants are “likely to succeed on the merits of their claim.” Crucial to the decision was the Court’s conclusion that OSHA had gone beyond its scope of authority by issuing a rule that governs “public health” not “workplace safety.” The court stated, “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” 

The Court utilized the major questions doctrine. “Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided.” The opinion highlighted that Congress had not clearly authorized the agency “to exercise powers of vast economic and political significance.” 

The majority, comprised of the six conservative justices, emphasized the unprecedented power grab: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.” 

The Court made clear “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory.” 

The dissent of the liberal justices, Breyer, Kagan, and Sotomayor, took issue with limiting OSHA’s power to the bounds on one’s occupation, “The statute generally charges OSHA with ‘assur[ing] so far as possible … safe and healthful working conditions.’ That provision authorizes regulation to protect employees from all hazards present in the workplace—or, at least, all hazards in part created by conditions there. It does not matter whether those hazards also exist beyond the workplace walls.” 

The majority placed the power back in the hands of Congress to make such decisions.

Today’s ruling, which affects 84 million Americans, reins in the federal government’s executive branch, and agency power. It is a victory for organizations fighting unlawful mandates. The shock waves should be heard throughout the world. It is another in a line of cases where the Supreme Court has drawn lines, such as Roman Catholic Diocese v. Cuomo and South Bay United Pentacostal Church v. Newsom, limiting the power of the government to mandate by fiat.

Supreme Court Upholds CMS Mandate

Announcement by the Supreme Court Regarding the OSHA and CMS Mandates

Jan. 13, 2022

U.S. Supreme Court

On January 13, 2022, the U.S. Supreme Court ruled in a 5-4 decision, an unsigned opinion, that it would allow the CMS mandate to stand. The court had heard oral arguments on January 7, 2022. Injunctions by Missouri, Louisiana and Texas, which impacted 25 states are now repealed by the ruling. 

The majority, finding for the Biden Administration, was comprised of the three liberal justices, Justices Breyer, Kagan, and Sotomayor, and two conservative justices, Chief Justice John Roberts and Justice Brett Kavanaugh. 

The majority held that it is part of the Department of Health and Human Services function and core mission “to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” 

The majority noted, “Such providers include hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities, and more. To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such ‘requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.’”

However, four conservative justices dissented, Justices Alito, Thomas, Gorsuch and Barrett. They each signed two different dissents. In one dissent, Alito stated, “I do not think that the Federal Government is likely to be able to show that Congress has authorized the unprecedented step of compelling over 10,000,000 healthcare workers to be vaccinated on pain of being fired.” In the other dissent, Thomas stated, “These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the Government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent.”

The Court’s lift of two injunctions which covered more than 17 million health care workers means that workers are required to receive one shot by January 27, 2022 and a second by February 28, 2022. Failure to have less than 100% of employees vaccinated may lead the facilities to be removed from Medicare or Medicaid programs. However, the agency has said that it would provide grace periods to facilities with at least 80% of their staff vaccinated by the January 27, 2022 deadline.

This is not the end of the road for the litigation. The court challenges remain, as the ruling addressed the injunction only and was not a ruling on the merits. The cases, if there are conflicting lower court rulings, as might be expected, may be reviewed in the future by the Supreme Court.

CMS Announcement Revising Requirements of Health Care Workers

Announcement by CMS

Dec. 28, 2021

CMS

On December 28, 2021, CMS announced that it will be enforcing the CMS mandate in the states where the mandate has not been enjoined. It also changed the compliance dates, requiring health care workers to receive their first dose by January 27, 2022 and their full dose or an exemption by February 28, 2022.

The application of the CMS mandate is currently split, with 25 states in which it is enjoined and 25 states in which it is not. 

Supreme Court Will Hear Oral Arguments January 7, 2022

Announcement by the Supreme Court Regarding the OSHA and CMS Mandates

Dec. 22, 2021

U.S. Supreme Court

On December 22, 2021, the U.S. Supreme Court announced that it will hold oral arguments on emergency applications regarding the CMS and OSHA mandates: One, the application to stay the CMS mandate in 25 states, and two, the emergency applications to re-stay the OSHA mandates.

The government's case is that it has a broad mandate to protect Medicare and Medicaid beneficiaries health and thus can condition payments to health care facilities on a vaccination requirement.

The States challenging the mandate argue that it's not within the power of the agency, but rather it is for Congress to clearly and expressly authorize the agency if it wants to allow the agency to mandate such a sweeping vaccination requirement. States note that CMS did not consider evidence and alternatives nor did they consider the use of testing as an alternative measure. 

Update: Case Against the Administration and OSHA Rule Implementing Biden’s Vaccine Mandate for Businesses with Over 100 Employees

In Re MCP No. 165, OSHA Rule on Covid-19 Vaccine and Testing, 86 Fed Reg 61402, 21-7000, 12-3-2021, CA6

Dec. 17, 2021

On 12/17/2021, a Sixth Circuit 3 judge panel, in a split 2-1 decision, dissolved the nationwide OSHA mandate issued by the Fifth Circuit in a 3-0 vote in November 2021.  The majority found that OSHA did not exceed its statutory authority given to it by Congress.

The 2 judge majority also found no irreparable harm to the plaintiffs, calling the numerous concrete harms enumerated by the plaintiff businesses and States to be "entirely speculative." The panel also found that the ETS mandate was “an important step in curtailing the transmission of a deadly virus,” ignoring all evidence that the ‘vaccine’ does not prevent transmission. The dissenting Sixth Circuit judge found that the plaintiffs had shown both a likelihood of success on the merits, as well as the existence of irreparable harm.

Some of the cases included in the Sixth Circuit consolidation to In Re MCP are:

State of Missouri, et al., v Biden, et al., 4:21-cv-01300

Nov. 5, 2021

State of Florida, et al., v. OSHA, No. 21-13866

Nov. 8, 2021

The S. Baptist Theological Seminary v. OSHA, No. 21-4033 

Nov. 17, 2021

 Bentkey Servs., LLC d/b/a The Daily Wire v. OSHA, No. 21-4027 

Nov. 17, 2021

 Phillips Mfg. & Tower Co. v. U.S. Dep’t of Labor, No. 21-4028 

Nov. 17, 2021

State of Texas, et al., v. U.S. Dep’t of Labor (No Number on Petition)

Nov. 5, 2021

A Suit Filed on Behalf of the State of Oklahoma and Air National Guard Members Challenging the Constitutionality of EO 14042, the Vaccine Mandate Against Federal Contractors

State of Oklahoma v. Biden, et al., 5:21-cv-01136

Dec. 02, 2021

U.S. District Court, Oklahoma Western District

On December 2, 2021, the State of Oklahoma filed a lawsuit against President Biden’s Executive Order 14042 (“EO 14042”), the mandate that requires all federal contractors and subcontractors to receive the COVID-19 vaccinations.

The lawsuit, filed by the State of Oklahoma (“State”), Governor J. Kevin Stitt, Attorney General John M. O’Connor, and 16 Air National Guard Members, asserts that EO 14042 does each of the following:  

1) exceeds the President’s authority (utilizing the non-delegation principle); 
2) is not authorized by any Congressionally enacted statute; 
3) violates the Tenth Amendment;
4) violates several Congressional laws, including the Religious Freedom Restoration Act (“RFRA”), the Administrative Procedures Act (“APA”), and the Procurement Policy Act (“PPA”);
5) exceeds Presidential powers in that it is contrary to privacy rights, bodily integrity, individual autonomy, religious conscience, and dignity of the employees and covered contractors (under the First Amendment’s Free Exercise Clause, the Fourth Amendment, and the Fifth Amendment’s Due Process Clause); and 
6) fails under the President’s obligation to faithfully enforce laws (under the Separation of Powers and Take Care Clause).

Also, because the field of public health - including vaccines - is within the purview of the State’s governance, the federal EO 14042 is violative of the State’s sovereignty. The State therefore calls the EO 14042 mandate “patently unfair, clearly devoid of common sense, and manifestly unlawful,” as well as “dangerously Un-American.”

Regarding the APA, the lawsuit challenges that EO 14042 fails due to the lack of a nexus between the mandate and a delegation of the requisite legislative authority granted by Congress under the APA. Further, the APA lacks any language that would give the executive (the President) the power to impose a vaccine mandate.   

Plaintiffs also assert that EO 14042 violates the PPA because it was not published in the Federal Register for public comment. Because of the sweeping national nature of EO 14042, it qualifies as both a procurement policy and procedure under 41 U.S. Code § 1707(a) and, as such, must be published and a 60-day public comment period allowed.

The suit seeks declaratory and injunctive relief.

The State of Texas Challenges the HHS's CMS COVID-19 Vaccine Mandate

State of Texas v. Becerra, et al., 2:21-cv-00229-Z

Nov. 15, 2021

U.S. District Court, Northern District of Texas

On November 15, 2021, the State of Texas sued the federal government, challenging the CMS Interim Final Rule (the CMS mandate). The CMS COVID-19 vaccine mandate applies to all health care workers employed at health care facilities that receive Medicare and Medicaid funding. 

The suit asserts that the CMS mandate threatens the health of all Texans, citing devastating effects that mandatory vaccination will have on rural Texas communities, adding to the already existing health care workforce shortages. The State alleges that even the loss of a few staff members due to resignations or terminations would be catastrophic and result in the loss of many health care services. 4.9 million Texans who receive services from the fifteen categories of Medicare and Medicaid-certified health care providers and suppliers covered by the CMS mandate will be affected.

The State claims the CMS mandate is violative of the Tenth Amendment and Art. I, Section 1 of the U.S. Constitution (the non-delegation doctrine), in that the legislature did not delegate the authority to HHS or CMS to establish vaccine requirements. 

The suit further asserts violations of the Administrative Procedures Act (APA) due to the lack of a notice and comment period prior to the implementation of a major rule. CMS’s claim of urgency to promulgate the rule is undermined both by hard data showing a downward trend to COVID deaths and hospital admissions and by the fact that CMS waited 11 months after vaccine availability to announce the rule. The State also asserts that CMS’s failure to provide notice and comment violates the Social Security Act’s (42 U.S.C. 1395hh) procedural rule-making requirements. 

Additionally, 42 U.S.C. 1395z requires that the HHS Secretary “consult with appropriate State agencies and recognized national listing or accrediting bodies” when “carrying out his functions, relating to determination of conditions of participation by providers of services…”. Since CMS did not consult with any state agencies prior to issuing the CMS mandate, it’s promulgation of the mandate is not lawful.

Texas alleges, further, that under 42 U.S.C. 1302(b)(1) CMS is required to prepare a regulatory impact analysis and it failed to do so. Since the CMS mandate will have significant effects on smaller rural hospitals and facilities, CMS must study its impacts.

The Complaint also alleges that CMS’s actions in promulgating the rule are not reasoned decision-making and are arbitrary and capricious, since it failed to fully consider the economic impacts on the healthcare industry, where labor force issues are concerned, and the financial impacts to healthcare workers who will lose their jobs. The actions do not provide for testing in lieu of the vaccines; refuse to provide exemptions for COVID recovered employees with natural immunity; disregard the costs of the Mandate to States and their agencies; reject the disparate impacts that the CMS mandate will have on minority and economically-disadvantaged communities, and; ignore important healthcare data. 

The claims in the suit include Violations of Statutory Limits on Agency Power, in that CMS, subject to the Administrative Procedures Act (APA), is not authorized by Congress to regulate the transmission of communicable diseases or mandate medical treatment for the staff of healthcare facilities. As such, CMS’s actions in exercising broad and boundless authority renders the Constitutional separation-of-powers principles meaningless.

The State of Texas, in its suit, asserts that the CMS mandate violates 42 U.S.C. 1395 because it purports to authorize federal CMS officials to supervise and control the selection and tenure of health care workers by prohibiting covered healthcare facilities from hiring unvaccinated employees and forcing the termination of those employees who are unwilling to submit to the vaccines.

Further, Texas claims the CMS mandate is an unconstitutional exercise of the spending power and a violation of the Anti-Commandeering doctrine. The federal government cannot use the spending power to “commandeer a State’s…administrative apparatus for federal purposes,” or compel the States to implement federal regulatory programs which the State claims the CMS mandate does.

The suit seeks declaratory and injunctive relief.

 

UPDATE: On December 16, 2021, U.S. District Court Judge Matthew Kacsmark enjoined the federal government from implementing and enforcing the CMS mandate pending a trial or other order from his court.

Case Filed on Behalf of Federal Employees Against the Biden Administration and the Safer Federal Workforce Task Force Alleging Violations of the Federal Code of Regulations and Unconstitutionality of the Executive Order No.

Health Freedom Defense Fund, et al. v. Joseph R. Biden, Jr., et al., 21-cv-02679

Nov. 12, 2021

Middle District of Florida

On November 12, 2021, several Department of Defense employees filed suit against Biden’s September 9, 2021 Executive Order No. 14043. The Plaintiffs include distinguished employees, such as a purple-heart service member and a Department of Justice Intelligence Research Specialist, along with Air Force personnel and an Air Traffic employee.

The Plaintiffs assert that they have a right to personal bodily integrity, a right which the government cannot intrude upon by mandate. The Complaint alleges, “At issue is American virtue. It comes to the court through the lens of the right to self-determination and bodily autonomy encompassed within the right to privacy.” The suit was filed asserting violations of the U.S. Constitution’s 14th Amendment Substantive Due Process Clause and the Equal Protection Clause. The suit argues that the case should be evaluated in terms of strict scrutiny: that the “medical treatments are a substantial burden” and that the Defendants cannot meet their burden to show that “the Mandate is narrowly tailored to meet a compelling interest.”

Plaintiffs additionally raise claims that their rights are being violated under parts 293.105 and 293.504 of Title 5 of the Code of Federal Regulations. The case was brought by Health Freedom Defense Fund, along with Federal Employees for Freedom, on behalf of over 6000 federal employees. 

Plaintiffs seek declaratory and injunctive relief.

Case Against the Biden Administration, DOD, and Department of the Navy Alleging Discriminatory Treatment and Retaliation for Legally Exercising Rights Under Free Exercise Clause

U.S. Navy Seals 1-26, et al. v. Joseph R. Biden, Jr., et al., 21-cv-01236-P

Nov. 09, 2021

U.S. District Court, Northern District of Texas

On November 9, 2021, Navy Seals and other Navy personnel filed a federal suit against the Biden Administration, the DOD, and the Secretary of the Navy asserting that they have refused to grant religious exemptions to the COVID-19 vaccine mandate in violation of federal law and statutes.

The suit was filed under the U.S. Constitution, the Religious Freedom Restoration Act (RFRA), the Administrative Procedure Act (APA), Department of Defense regulations, Department of the Navy regulations, The suit asserts the denial of Plaintiffs’ fundamental right to the free exercise of religion and seeks protection from improper agency action.

Plaintiffs attack the Defendants’ administration of the Navy Vaccine Mandate for refusal to grant religious and medical exemptions, and for retaliatory actions because of exemption requests. The DOD and Navy regulations recognize religious and medical accommodations for immunizations under RFRA and the Free Exercise Clause of the First Amendment, however, Defendants’ actions are not recognizing this, the suit asserts. Plaintiffs additionally raise claims that their rights are being violated under the APA, and that the actions of the military agencies are not the least restrictive means of accomplishing their purported interests.

Plaintiffs seek declaratory and injunctive relief, as well as actual and nominal damages.

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