United States Court of Appeals

for the Fifth Circuit ___________ 

No. 22-40043

___________ 

Feds for Medical Freedom; Local 918, American 

Federation of Government Employees; Highland 

Engineering, Incorporated; Raymond A. Beebe, Jr.; John 

Armbrust; et al.,

Plaintiffs—Appellees,

versus

Joseph R. Biden, Jr., in his official capacity as President of the United 

States; The United States of America; Pete Buttigieg, in 

his official capacity as Secretary of Transportation; Department of 

Transportation; Janet Yellen, in her official capacity as Secretary 

of Treasury; et al.,

Defendants—Appellants.

______________________________ 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:21-CV-356 

______________________________ 

Before Smith, Higginson, and Willett, Circuit Judges.

Per Curiam:

IT IS ORDERED that Appellants’ opposed motion to stay the 

injunction pending appeal is CARRIED WITH THE CASE. This matter 

is expedited to the next available randomly designated regular oral argument 

United States Court of Appeals

Fifth Circuit

FILED

February 9, 2022

Lyle W. Cayce

Clerk
No. 22-40043

2

panel. The Clerk is directed to issue a schedule for expedited briefing. The 

merits panel, once identified, will be free, in its discretion, to rule 

immediately on the motion to stay or await oral argument.
No. 22-40043

3

Stephen A. Higginson, Circuit Judge, dissenting:

In September 2021, President Biden issued Executive Order No. 

14043, which, subject to legally required exemptions, directs federal agencies 

to require their employees to be immunized against COVID-19, a disease that

has killed nearly one million people in the United States and over five million 

worldwide. Though a dozen district courts have rejected requests to enjoin 

this order,1 a single district judge in the Southern District of Texas, in a 20-

page opinion, 2 issued a nationwide preliminary injunction against the 

President’s exercise of authority over Article II employees. Because I would 

grant the Government’s motion to stay that injunction pending appeal, I 

respectfully dissent from the majority’s decision not to resolve this 

emergency matter.3

1 See Brnovich v. Biden, No. CV-21-1568, 2022 WL 252396 (D. Ariz. Jan. 27, 2022); 

Oklahoma v. Biden, No. CIV-21-1136, 2021 WL 6126230 (W.D. Okla. Dec. 28, 2021); Brass 

v. Biden, No. 21-cv-2778, 2021 WL 6498143 (D. Colo. Dec. 23, 2021) (report and 

recommendation), adopted, 2022 WL 136903 (D. Colo. Jan. 14, 2022); AFGE Local 501 v. 

Biden, No. 21-23828-CIV, 2021 WL 6551602 (S.D. Fla. Dec. 22, 2021); Donovan v. Vance, 

No. 21-CV-5148, 2021 WL 5979250 (E.D. Wash. Dec. 17, 2021); McCray v. Biden, No. 21-

2882, 2021 WL 5823801 (D.D.C. Dec. 7, 2021); Navy Seal 1 v. Biden, No. 21-cv2429, 2021 

WL 5448970 (M.D. Fla. Nov. 22, 2021); Rydie v. Biden, No. 21-2696, 2021 WL 5416545 

(D. Md. Nov. 19, 2021); Altschuld v. Raimondo, No. 21-cv-2779, 2021 WL 6113563 (D.D.C. 

Nov. 8, 2021); Church v. Biden, No. 21-2815, 2021 WL 5179215 (D.D.C. Nov. 8, 2021); 

Smith v. Biden, No. 21-cv-19457, 2021 WL 5195688 (D.N.J. Nov. 8, 2021); Foley v. Biden, 

No. 21-cv-1098, ECF No. 18 (N.D. Tex. Oct. 6, 2021).

2 Feds for Med. Freedom v. Biden, No. 3:21-CV-356, 2022 WL 188329 (S.D. Tex. 

Jan. 21, 2022).

3 The district court issued its preliminary injunction on January 21. The 

Government moved to stay that order on January 28. The district court refused to rule on 

that motion. The Government, presumably with Solicitor General approval, then moved 

this court for a stay on February 4. Today, our court too refuses to rule. Thus, a presidential 

order affecting millions of federal employees has been enjoined nationwide, yet two 

separate federal courts have failed to rule on the Government’s emergency request for a 

stay. The only court that can now provide timely relief is the Supreme Court.
No. 22-40043

4

I.

When considering whether to grant a stay, “a court considers four 

factors: ‘(1) whether the stay applicant has made a strong showing that he is 

likely to succeed on the merits; (2) whether the applicant will be irreparably 

injured absent a stay; (3) whether issuance of the stay will substantially injure 

the other parties interested in the proceeding; and (4) where the public 

interest lies.’” Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. 

Braunskill, 481 U.S. 770, 776 (1987)). In this case, all four factors favor 

granting a stay.

II.

The Government has made a strong showing that it is likely to succeed 

on the merits, for at least three independent reasons.

A.

As a threshold matter, the Government is likely to succeed in 

demonstrating on appeal that the district court lacks jurisdiction over this 

case. Congress requires covered federal employees to raise their workplace 

grievances through the administrative procedures set forth in the Civil 

Service Reform Act (CSRA). As the Supreme Court has explained, “[g]iven 

the painstaking detail with which the CSRA sets out the method for covered 

employees to obtain review of adverse employment actions, it is fairly 

discernible that Congress intended to deny such employees an additional 

avenue of review in district court.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 11-

12 (2012); see also Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991)

(describing the CSRA as establishing “the comprehensive and exclusive 

procedures for settling work-related controversies between federal civilservice employees and the federal government”); 5 U.S.C. §§ 7512, 7513(d), 

7703(b)(1) (making certain adverse employment actions against federal 

employees reviewable by Merit Systems Protection Board and Federal 
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5

Circuit); id. §§ 1214(a)(3), 2302 (review scheme for less severe “prohibited 

personnel practice[s]”). For this reason alone, I would grant the stay.4

B.

Even if we were to ultimately determine that the district court has 

jurisdiction to hear this case, the Government is likely to succeed in showing 

that the President has authority to promulgate this executive order pertaining 

to the federal executive workforce.

“Under our Constitution, the ‘executive Power’—all of it—is ‘vested 

in a President,’ who must ‘take Care that the Laws be faithfully executed.’” 

Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020)

(quoting U.S. Const. art. II, § 1, cl. 1; id. § 3). The President’s executive 

power has long been understood to include “general administrative control 

of those executing the laws.” Id. at 2197-98 (quoting Myers v. United States, 

272 U.S. 52, 163-64 (1926)). Accordingly, the President “has the right to 

prescribe the qualifications of [Executive Branch] employees and to attach 

conditions to their employment.” Friedman v. Schwellenbach, 159 F.2d 22, 24 

(D.C. Cir. 1946); see also Old Dominion Branch No. 496, Nat. Ass’n of Letter 

Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 n.5 (1974) (noting “the 

President’s responsibility for the efficient operation of the Executive 

Branch”); Crandon v. United States, 494 U.S. 152, 180 (1990) (Scalia, J., 

concurring in the judgment) (describing “the President’s discretion-laden

power” to regulate the Executive Branch under 5 U.S.C. § 7301); Nat’l 

4 Though the district court stated that the D.C. Circuit permits “pre-enforcement 

challenges to government-wide policies,” the cases cited for this proposition all 

significantly pre-date Elgin. Allowing pre-enforcement challenges in district courts while 

requiring employees who experience actual employment actions to challenge those actions 

under the CSRA “would reintroduce the very potential for inconsistent decisionmaking 

and duplicative judicial review that the CSRA was designed to avoid.” Elgin, 567 U.S. at 

14.
No. 22-40043

6

Treasury Emps. Union v. Bush, 891 F.2d 99 (5th Cir. 1989) (upholding 

President Reagan’s executive order authorizing random drug testing of 

certain federal employees). Thus, the President, as head of the federal

executive workforce, has authority to establish the same immunization

requirement that many private employers have reasonably imposed to ensure 

workplace safety and prevent workplace disruptions caused by COVID-19.

The district court rejected the above argument as “a bridge too far,” 

given “the current state of the law as just recently expressed by the Supreme 

Court” in NFIB v. OSHA, 142 S. Ct. 661 (2022), and Biden v. Missouri, 142 

S. Ct. 647 (2022). However, the district court misapprehended the single, 

animating principle that all Justices embraced in these decisions. As Justice 

Gorsuch explained in his NFIB concurrence, “The central question we face 

today is: Who decides?” 142 S. Ct at 667 (Gorsuch, J., concurring). In NFIB, 

the Court stayed an immunization requirement that unelected agency 

officials imposed on private employers that do not receive federal funding, 

explaining that “[a]dministrative agencies are creatures of statute” and that 

the Occupational Safety and Health Act does not “plainly authorize[] the 

Secretary’s [immunization or testing] mandate.” 142 S. Ct. at 665. 

Comparatively, in Biden v. Missouri, which involved an immunization 

requirement that unelected agency officials imposed on the staff of healthcare 

facilities receiving Medicare and Medicaid funding, the Court concluded that 

“the Secretary’s rule falls within the authorities that Congress has conferred 

upon him.” 142 S. Ct. at 652. Notably, even the dissenting Justices in that 

case acknowledged that “[v]accine mandates . . . fall squarely within a State’s 

police power.” Id. at 658 (Thomas, J., dissenting); see also NFIB v. OSHA, 

142 S. Ct at 667 (Gorsuch, J., concurring) (“There is no question that state 

and local authorities possess considerable power to regulate public health.”).

Thus, in these two cases, the Court gave a consensus answer to Justice

Gorsuch’s question: it is elected, democratically-accountable officials, 
No. 22-40043

7

including members of Congress5 and state legislators, who have authority to 

decide—and answer for—the infection-fighting measures that they impose, 

including immunization requirements, such as mandatory smallpox 

vaccination, that our country has utilized for centuries. See Jacobson v. 

Massachusetts, 197 U.S. 11 (1905) (upholding the authority of states to enforce 

compulsory vaccination laws). 6

The President is not an unelected administrator. He is instead the

head of a co-equal branch of government and the most singularly accountable 

elected official in the country. This federal workplace safety order displaces 

no state police powers and coerces no private sector employers. Instead,

consistent with his Article II duty to “take Care that the Laws be faithfully 

executed,” the President is performing his role as CEO of the federal

workforce, 7 taking executive action in order to keep open essential 

5 Cf. 8 U.S.C. § 1182(a)(1)(A)(ii) (statutory requirement that any alien “who seeks

admission as an immigrant” must “receive[] vaccination against vaccine-preventable 

diseases,” including “mumps, measles, rubella, polio, tetanus and diphtheria toxoids, 

pertussis, influenza type B and hepatitis B”).

6 Indeed, executive immunization requirements predate the birth of this country, 

with George Washington famously requiring members of the Continental Army to be 

inoculated against smallpox. See Letter from George Washington to William Shippen, Jr. 

(Feb. 6, 1777), in 8 THE PAPERS OF GEORGE WASHINGTON, REVOLUTIONARY 

WAR SERIES, 6 JANUARY 1777-27 MARCH 1777, 264 (Frank E. Grizzard, Jr., ed.) 

(1998) (“Finding the small pox to be spreading much and fearing that no precaution can 

prevent it from running thro’ the whole of our Army, I have determined that the troops 

shall be inoculated.”).

7 Notably, in a very recent survey of nearly 500 employers, the employee benefits 

consultancy Mercer “found 44% with a [vaccine] mandate currently in place and 6% 

planning to implement one, with another 9% still considering it.” Beth Umland and Mary 

Kay O’Neill, Worksite Vaccine Requirements in the Wake of the OSHA ETS (Jan. 27, 2022), 

https://www.mercer.us/our-thinking/healthcare/worksite-vaccine-requirements-in-thewake-of-the-osha-ets.html.
No. 22-40043

8

government buildings; 8 to maintain the provision of vital government 

services, such as the Transportation Security Administration; and to prevent 

unvaccinated federal employees from infecting co-workers or members of the 

public who, whether because of age or infirmity, might be highly vulnerable 

to hospitalization and death.

Federal employees that disagree with the content of Executive Order 

14043 retain the right to claim an exemption, to leave the government’s 

employment, to collectively bargain, and to challenge the order through the 

CSRA. And, of course, any American that disagrees with the content of the 

order has the right to vote the President out of office. Thus, consistent with 

NFIB v. OSHA and Biden v. Missouri, accountability for the federal executive 

employee immunization requirement is open, obvious, and vested in one 

elected, democratically-accountable official. These two cases do not cast 

doubt on, but rather determinatively confirm, the President’s power to issue 

Executive Order No. 14043.

C.

In addition to the issues discussed above, the government is also likely 

to succeed in showing that the plaintiffs have not met their burden for 

obtaining a preliminary injunction. A plaintiff seeking such an injunction 

must establish, among other requirements, “that he is likely to suffer 

irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res. 

Def. Council, Inc., 555 U.S. 7, 20 (2008). However, even if the plaintiffs were 

to lose their jobs as a result of this order,9 we have explained in a previous 

8 In contrast to many of the essential services and executive agencies that the 

President oversees, Article III institutions such as this court and the Supreme Court can 

close our buildings to the public, allowing us to rely on other, less effective infectionfighting measures, such as mandatory mask-wearing and testing.

9 Notably, the district court did not identify a single plaintiff employee who, at the 

time the complaint was filed, 1) worked for an agency that had implemented the President’s 
No. 22-40043

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case involving “discharge under the federal civil service laws” that “[i]t is 

practically universal jurisprudence in labor relations in this country that there 

is an adequate remedy for individual wrongful discharge after the fact of 

discharge”: “reinstatement and back pay.” Garcia v. United States, 680 F.2d 

29, 31-32 (5th Cir. 1982). The CSRA makes this remedy available to the 

plaintiffs. See 5 U.S.C. § 7118(a)(7)(C). Accordingly, the plaintiffs cannot 

show that they are likely to suffer irreparable harm in the absence of 

preliminary relief.

* * *

For these three independent reasons, the Government has made a 

strong showing that its appeal is likely to succeed on the merits. 

III.

In addition to likelihood of success on the merits, the other factors for 

a stay are also met in this case. As stated above, a court considering whether 

to grant a stay must consider not only “(1) whether the stay applicant has 

made a strong showing that he is likely to succeed on the merits” but also 

“(2) whether the applicant will be irreparably injured absent a stay; 

(3) whether issuance of the stay will substantially injure the other parties 

interested in the proceeding; and (4) where the public interest lies.” Nken, 

556 U.S. at 426.

Looking at the second factor, the district court’s injunction places 

federal employees at a greater risk of hospitalization and death, not to 

mention being unable to work because of illness or the need to quarantine. As

Jason Miller, the Deputy Director for Management at the Office of 

immunization requirement, 2) had been denied an exemption, and 3) faced imminent 

discipline or discharge. Cf. Brnovich, 2022 WL 252396, at *6-8 (concluding that a U.S. 

Marshal’s challenge to the federal employee immunization requirement was unripe).
No. 22-40043

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Management and Budget, explained in a comprehensive declaration 

submitted to the district court, the Government’s operational efficiency will 

be greatly impeded if this executive order cannot go into effect: 

In sum, each day that the vaccination requirement for Federal 

employees is delayed requires agencies that provide critical 

support for U.S. foreign policy, global financial systems, 

American infrastructure, and the pandemic response to devote 

additional time and resources to ensuring the safety of the 

Federal workforce above and beyond the substantial time and 

resources already devoted to these efforts—time and resources 

that would otherwise be spent doing critical mission function 

to the benefit of the American people.

Thus, the Government will be irreparably injured absent a stay. 

Regarding the third factor, the issuance of a stay will not substantially 

injure the other parties in this proceeding. Even assuming that this executive 

order injures any plaintiff—as previously noted, the district court did not 

identify any particular plaintiff that faces imminent discipline or discharge—

that injury can be remedied through reinstatement and backpay, for the 

reasons explained in supra Part II.C. 

Finally, the public has an indisputable interest not only in the 

Government’s operational efficiency but also in stemming the spread 

through the federal executive workforce, and beyond, of a highly contagious, 

deadly disease. Immunization requirements have proven extremely effective 

in the private sector. For example, the CEO of Tyson Foods has explained 

that even though less than half of the company’s employees were vaccinated 

when Tyson announced its immunization requirement in early August, by 

late October “over 96% of our active team members [were] vaccinated—or 
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11

nearly 60,000 more than when we made the announcement.”10 Similarly, 

according to the CEO of United Airlines, “[p]rior to our vaccine 

requirement, tragically, more than one United employee on average *per 

week* was dying from COVID,” but “we’ve now gone eight straight weeks 

with zero COVID-related deaths among our vaccinated employees.” 11

Though the district court asserted, without evidence or citation, that “there 

is no reason to believe that the public interest cannot be served via less

restrictive measures than the mandate” and that “[s]topping the spread of 

COVID-19 will not be achieved by overbroad policies like the federal-worker 

mandate,” the 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. 

IV.

For the foregoing reasons, I would grant the stay. 

However, even if I were to conclude that the motion should be denied 

with respect to these plaintiffs, I would grant the Government’s motion 

insofar as the district court’s nationwide preliminary injunction applies to 

any person or entity that is not either a named plaintiff or an individual 

possessing, at the time the complaint was filed, bona fide indicia of 

membership in one of the plaintiff organizations. As we recently explained, 

10 Tyson Foods to Require COVID-19 Vaccinations for its U.S. Workforce (August 

3, 2021), https://www.tysonfoods.com/news/news-releases/2021/8/tyson-foodsrequire-covid-19-vaccinations-its-us-workforce; Over 96% of Tyson Foods’ Active 

Workforce is Vaccinated (October 26, 2021), https://www.tysonfoods.com/news/newsreleases/2021/10/over-96-tyson-foods-active-workforce-vaccinated.

11 A Letter to United Employees from CEO Scott Kirby (Jan. 11, 2022), 

https://www.united.com/en/us/newsroom/announcements/scott-kirby-employee-note.
No. 22-40043

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nationwide injunctions “can constitute ‘rushed, high-stake, low-information 

decisions,’ while more limited equitable relief can be beneficial.” Louisiana 

v. Becerra, 20 F.4th 260, 264 (5th Cir. 2021) (quoting Department of 

Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., 

concurring in the grant of a stay)); see also Trump v. Hawaii, 138 S. Ct. 2392, 

2425 (2018) (Thomas, J., concurring) (observing that nationwide injunctions 

“are beginning to take a toll on the federal court system—preventing legal 

questions from percolating through the federal courts, encouraging forum 

shopping, and making every case a national emergency for the courts and for 

the Executive Branch”).12

Cognizant of the separation of powers, as well as our judicial ignorance 

of the immense task of running the executive branch of government, for 

which the President, informed by public health experts, is solely accountable, 

I would not allow an unelected lower court to impose its Article III fiat on 

millions of Article II employees, above all when a dozen other lower courts 

have declined to enjoin the President’s order.

12 See generally Samuel L. Bray, Multiple Chancellors: Reforming the National 

Injunction, 131 Harv. L. Rev. 417, 421, 424 (2017) (arguing that nationwide injunctions 

lead to “forum shopping, worse decisionmaking, a risk of conflicting injunctions, and 

tension with other doctrines and practices of the federal courts” and that, in accordance 

with both equitable principles and the scope of the Article III judicial power, “federal 

courts should issue injunctions that control a federal defendant’s conduct only with respect 

to the plaintiff”).