Trump Fifth Circuit judge Don Willett cast the deciding vote in a “shadow docket” ruling that refused to stay or alter a district court injunction that imposed a nationwide stop on a requirement that federal workers be vaccinated against COVID-19. The February 2022 ruling was in Feds for Medical Freedom v Biden.
Trump District Court Nationwide Injunction
As part of its Path out of the Pandemic, the Biden Administration required last year that federal workers get vaccinated against COVID-19. The order included medical and religious exceptions. Most federal district courts have upheld the requirement.
In January, however, a Trump district judge in Texas issued a preliminary injunction forbidding any enforcement of the order. This injunction applied not just in Texas, but all across the country. The Justice Department appealed. It asked the Fifth Circuit to stop the order pending appeal, or at least to suspend its nationwide effect.
Fifth Circuit “Shadow Docket” Order and Higginson Dissent
In its own version of a “shadow docket” order, a Fifth Circuit panel refused with absolutely no explanation. It did order that the appeal be expedited and suggested that the court could reconsider the stay request. Trump judge Don Willett cast the deciding vote in the 2-1 order.
Judge Stephen Higginson strongly dissented. He explained that the government had made a “strong showing” that it would likely prevail. He based his conclusion on on decisions by “a dozen district courts” refusing to enjoin the requirement, clear case law indicating that the court did not have jurisdiction over the matter, and precedent establishing that the President “has authority to establish the same immunization requirement” on the federal workforce that many private employers have done to “ensure workplace safety and prevent workplace disruptions” due to COVID-19. Higginson also criticized the nationwide nature of the injunction. He maintained that at the least, the injunction should have been limited to Texas.
Judge Higginson also discussed the harm caused by the lower court injunction. He wrote that the order places federal employees “at a greater risk of hospitalization and death.” As an OMB official explained, “each day” of delay of the requirement diverts critical “time and resources” from the government’s work. Higginson noted the public’s “indisputable interest” in “stemming the spread” of the “highly contagious, deadly” COVID-19, as to which “immunization requirements have proven extremely effective.” The decision will clearly harm the public interest, Higginson concluded, by a “single” and “unaccountable” federal judge, “lacking public health expertise,” dictating to the President, as “CEO of the federal workforce,” that he is forbidden from taking “the same lifesaving workplace safety measures” as “private CEOs.”
The Future
Fortunately, 97% of the federal workforce has already complied with the vaccination requirement. That will limit the harm caused by the Trump judges’ actions. The Supreme Court may well decide the issue. The case provides yet another example of why judges matter and the importance of the Senate continuing to confirm fair-minded federal judges.
Uodate: A different Fifth Circuit panel, not including any Trump judges, reversed the district court in early April. It reinstated the vaccine requirement and ruled that the workers could not sue. It remains inclear whether they will pursue the case further.