Case: 22-40043 Document: 304-1 Page: 1 Date Filed: 03/23/2023
`
`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.,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`March 23, 2023
`
`Lyle W. Cayce
`Clerk
`
`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 Richman, Chief Judge, and Jones, Smith, Barksdale,
`Stewart, Dennis, Elrod, Southwick, Haynes, Graves,
`Higginson, Willett, Ho, Duncan, Engelhardt, Oldham,
`and Wilson, Circuit Judges.
`
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`No. 22-40043
`
`Andrew S. Oldham, Circuit Judge, joined by Jones, Smith,
`Barksdale, Elrod, Willett, Ho, Duncan, Engelhardt, and
`Wilson, Circuit Judges:∗
`
`The primary question presented is whether we have jurisdiction over
`pre-enforcement challenges to President Biden’s vaccine mandate for federal
`employees. We do. On the merits, we affirm the district court’s order.
`
`I.
`
`On September 9, 2021, President Biden issued Executive Order
`14043, which generally required all federal employees to be vaccinated.
`Employees who didn’t comply would face termination. He also issued
`Executive Order 14042, imposing the same requirements and punishments
`for federal contractors.
`
`Feds for Medical Freedom is a non-profit organization with over
`6,000 members employed by numerous federal agencies and contractors.
`Feds for Medical Freedom, along with a chapter of the American Federation
`of Government Employees and more than 50 individual plaintiffs, sued for
`declaratory and injunctive relief against the enforcement of both mandates.
`
`Plaintiffs raised several constitutional and statutory claims. First, they
`asserted constitutional objections. They argued that the President did not
`have inherent Article II authority to issue either mandate. And any purported
`congressional delegation of such power violated either the major questions
`doctrine or the non-delegation doctrine. Second, they claimed both mandates
`were arbitrary, capricious, and otherwise not in accordance with law under
`the Administrative Procedure Act (“APA”). And the contractor mandate
`
`
`
`∗ Judge Willett joins all except Part VI. Judge Douglas was not a member
`of the court when this case was submitted to the court en banc and did not participate in
`this decision.
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`No. 22-40043
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`violated the APA because it was not in accordance with law. Finally, they
`sought relief under the Declaratory Judgment Act (“DJA”).
`
`The day after filing their complaint, plaintiffs sought preliminary
`injunctions against both mandates. The district court declined to enjoin the
`contractor mandate because it was already the subject of a nationwide
`injunction. But it enjoined the employee mandate on January 21, 2022. The
`Government timely appealed that injunction.
`
`On an expedited appeal, a divided panel of our court vacated the
`injunction. See Feds for Medical Freedom v. Biden, 30 F.4th 503 (5th Cir. 2022).
`The panel majority held “that the [Civil Service Reform Act of 1978
`(“CSRA”)] precluded the district court’s jurisdiction. Accordingly, the
`plaintiffs’ claim for preliminary injunctive relief fails because they have not
`shown a substantial likelihood of success on the merits. We do not reach the
`parties’ arguments regarding the other requirements for a preliminary
`injunction.” Id. at 511. Judge Barksdale dissented. We granted
`rehearing en banc, vacating the panel opinion. See Feds for Medical Freedom v.
`Biden, 37 F.4th 1093 (5th Cir. 2022).
`
`II.
`
`“Jurisdiction is always first.” Carswell v. Camp, 54 F.4th 307, 310 (5th
`
`Cir. 2022) (quotation omitted). Congress gave federal district courts
`jurisdiction over “all civil actions arising under the Constitution, laws, or
`treaties of the United States.” 28 U.S.C. § 1331. It’s undisputed that
`plaintiffs’ claims arise under federal law, both constitutional and statutory.
`It’s also undisputed that the CSRA nowhere expressly repeals district courts’
`§ 1331 jurisdiction over plaintiffs’ claims. The Government’s contention,
`however, is that the CSRA implicitly repeals § 1331 jurisdiction over
`plaintiffs’ claims.
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`it’s “fairly
`turns on whether
`jurisdiction-stripping
`Implicit
`discernible” from the statutory scheme that Congress silently took away the
`jurisdiction that § 1331 explicitly conferred. “To determine whether it is
`‘fairly discernible’ that Congress precluded district court jurisdiction over
`petitioners’ claims, we examine the CSRA’s text, structure, and purpose.”
`Elgin v. Dep’t of Treasury, 567 U.S. 1, 10 (2012) (citations omitted). We (A)
`begin with the CSRA’s text and structure. Then we (B) discuss the statute’s
`purpose. Then we (C) hold that the CSRA does not apply to the plaintiffs’
`claims and hence does not implicitly displace § 1331 jurisdiction.
`
`A.
`
`We begin with the CSRA’s text and structure. The CSRA’s
`
`“statutory framework provides graduated procedural protections depending
`on an [employment] action’s severity.” Kloeckner v. Solis, 568 U.S. 41, 44
`(2012). Two parts of that graduated procedural framework are central to this
`case.
`
`The first is codified at Chapter 23. See 5 U.S.C. §§ 2301 et seq. Chapter
`
`23 is the bottom of the CSRA’s pyramid. It governs the least severe
`employment actions the Government can take and provides concomitantly
`fewer procedural protections and remedies for federal employees aggrieved
`by those employment actions.
`
`Specifically, Chapter 23 prohibits federal employers from using a
`“prohibited personnel practice,” id. § 2302(a)(1), (b), to take a certain
`id. § 2302(a)(2)(A). Chapter 23’s “prohibited
`“personnel action,”
`personnel practice[s]” include various forms of discrimination (race, age,
`sex, &c.), nepotism, and retaliation for whistleblowing. See id. § 2302(b)(1)
`(discrimination), (b)(7) (nepotism), (b)(8) (whistleblowing). The triggering
`“personnel action[s]” are limited to the following twelve things:
`
`(i) an appointment;
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`(ii) a promotion;
`
`(iii) an action under chapter 75 of this title or other disciplinary
`or corrective action;
`
`(iv) a detail, transfer, or reassignment;
`
`(v) a reinstatement;
`
`(vi) a restoration;
`
`(vii) a reemployment;
`
`(viii) a performance evaluation under chapter 43 of this title or
`under title 38;
`
`(ix) a decision concerning pay, benefits, or awards, or
`concerning education or training if the education or training
`may reasonably be expected to lead to an appointment,
`promotion, performance evaluation, or other action described
`in this subparagraph;
`
`(x) a decision to order psychiatric testing or examination;
`
`(xi) the implementation or enforcement of any nondisclosure
`policy, form, or agreement; and
`
`(xii) any other significant change in duties, responsibilities, or
`working conditions;
`
`Id. § 2302(a)(2)(A). Chapter 23’s personnel actions obviously do not include
`severe measures such as demotions or terminations.1
`
`
`
`1 Section 2302(a)(2)(A)(iii) (“romanette iii”) cross-references “an action under
`chapter 75 of this title.” Chapter 75 does not use the phrase “personnel action” but instead
`uses the phrase “an action.” 5 U.S.C. §§ 7502, 7512 (subchapter titles); see also id.
`§ 7513(a), (b), (d), (e) (referring to “an action” taken against a federal employee). By virtue
`of romanette iii’s cross-reference, “personnel action” includes both a Chapter 23
`personnel action and a Chapter 75 action. Throughout this opinion, we use “Chapter 23
`
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`Given that Chapter 23 applies only to relatively mild personnel
`actions, Chapter 23’s review mechanisms are also relatively modest. When a
`federal employee suffers a Chapter 23 “personnel action” based on a
`“prohibited personnel practice,” the employee can file an allegation with the
`Office of Special Counsel (“OSC”). Id. §§ 1214(a), 2302. The OSC, in turn,
`can terminate the matter or refer it to the Merit Systems Protection Board
`(“MSPB”). Id. § 1214(a)(2) (termination), (b) (referral). The employee can
`then seek judicial review of the MSPB’s final order in the United States
`Court of Appeals for the Federal Circuit. Id. §§ 1214(c), 7703(b)(1)(A).
`Judicial review for Chapter 23 personnel actions is extremely limited,
`however. As then-Judge Scalia explained: “judicial scrutiny [is] limited, at
`most, to insuring compliance with the statutory requirement that the OSC
`perform an adequate inquiry.” Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir.
`1983) (quotation omitted).
`
`The second part of the CSRA’s graduated procedural framework is
`codified at Chapter 75. See 5 U.S.C. §§ 7501 et seq. Chapter 75 forms the top
`of the CSRA’s pyramid and governs the most-severe employment actions—
`such as suspensions, reductions in pay, and terminations. Id. §§ 7502,
`7512(1)–(5). When the Government proposes a suspension of fourteen days
`or less, the covered employee is entitled to notice, the opportunity to
`respond, the right to an attorney, and the right to a written decision. Id.
`§ 7503(b)(1)–(4). When the Government proposes any other Chapter 75
`action, the covered employee receives these same protections, id. § 7513(b),
`
`
`
`personnel actions” to refer to the non-Chapter-75, less-severe employment actions listed
`in § 2302. We use “Chapter 75 personnel actions” or “Chapter 75 actions” to refer to the
`more-severe employment actions such as demotion and termination listed in § 7512. And
`unless context dictates otherwise, we use “personnel actions” or “CSRA-covered
`personnel actions” to include any employment actions covered by the CSRA.
`
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`No. 22-40043
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`and can also appeal to the MSPB, id. § 7513(d), and to the Federal Circuit,
`id. § 7703(b)(1)(A).
`
`Where a covered employee challenges a covered personnel action, the
`CRSA’s review mechanisms are “exclusive.” Elgin, 567 U.S. at 13–14. Take
`for example McAullife v. Rice, 966 F.2d 979 (5th Cir. 1992). There, a CSRA-
`covered employee challenged the Chapter-75-covered termination of her
`employment—but she tried to do it in the Western District of Texas under
`the APA, rather than in the MSPB and Federal Circuit under the CSRA. See
`id. at 979. We rejected the attempt because the CSRA provides the exclusive
`jurisdictional (and remedial) font for covered federal employees when they are
`challenging CSRA-covered personnel actions. See ibid.
`
`The italicized clause is very important for two reasons. First, the
`
`Supreme Court has been clear that the CSRA eliminates § 1331 jurisdiction
`only for personnel actions covered by the CSRA. For example, in United
`States v. Fausto, 484 U.S. 439 (1988), the Court said the CSRA “displays a
`clear congressional intent to deny the excluded employees the protections of
`Chapter 75—including judicial review—for personnel action covered by that
`chapter.” Id. at 447 (emphasis added). Likewise in Elgin, the Court repeatedly
`limited its holding to the CSRA’s jurisdictional effects on “a covered
`employee challeng[ing] a covered action,” 567 U.S. at 13; “a covered
`employee’s appeal of a covered action,” ibid.; and “a covered employee
`[attempting to] challenge a covered employment action first in a district
`court,” id. at 14 (all emphases added); see also id. at 10, 20–21 (reiterating the
`limitation). The Court has never suggested—much less held—that the
`CSRA implicitly strips § 1331 jurisdiction over federal employees’ claims
`outside the CSRA’s covered personnel actions. See Bosco v. United States, 931
`F.2d 879, 883 (Fed. Cir. 1991) (“The Supreme Court did not rule that the
`CSRA provided the only means of judicial review of any actions affecting
`federal employees, but rather that it was the only means of review as to the
`
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`types of adverse personnel action specifically covered by the CSRA . . . .”
`(emphases in original)).
`
`Second, the Court has expressly said the opposite—that the CSRA
`
`does nothing to affect jurisdiction outside of its covered personnel actions:
`
`Not all personnel actions are covered by this [CSRA] system.
`For example, there are no provisions for appeal of either
`suspensions for 14 days or less or adverse actions against
`probationary employees. In addition, certain actions by
`supervisors against federal employees, such as wiretapping,
`warrantless searches, or uncompensated takings, would not be
`defined as ‘personnel actions’ within the statutory scheme.
`
`Bush v. Lucas, 462 U.S. 367, 385 n.28 (1983) (citations omitted). In
`accordance with this express command, federal courts across the country
`have time and again held that the CSRA does not strip § 1331 jurisdiction
`when federal employees challenge something other than a CSRA-covered
`personnel action. For example, installing a hidden camera in the women’s
`changing area of a VA medical center is not a CSRA-covered personnel action
`and hence can be challenged outside the CSRA. See Gustafson v. Adkins, 803
`F.3d 883, 888 (7th Cir. 2015) (“Under the plain language of the statute, the
`term ‘personnel action’ does not encompass Adkins’s conduct . . . [of]
`installing the hidden camera . . . .”). Same with assaulting a federal employee.
`See Orsay v. DOJ, 289 F.3d 1125, 1131 (9th Cir. 2002), abrogated on other
`grounds by Millbrook v. United States, 569 U.S. 50 (2013) (“Claxton’s alleged
`aiming of a loaded weapon at Appellants does not fit any of the CSRA’s
`definitions of ‘personnel action.’ Consequently, the CSRA does not bar
`Appellants’ [Federal Tort Claims Act] claims . . . .”); Brock v. United States,
`64 F.3d 1421, 1425 (9th Cir. 1995) (sexual assault). Same with libeling a
`federal employee. See Gutierrez v. Flores, 543 F.3d 248, 253–54 (5th Cir.
`2008) (holding the CSRA does not apply or strip jurisdiction because “this
`
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`case does not involve . . . any adverse employment action”). And same with
`illegally searching a federal employee’s home. See Collins v. Bender, 195 F.3d
`1076, 1080 (9th Cir. 1999) (“[W]e do not believe that Congress intended to
`deputize government supervisors as chieftains of security forces that police
`the private lives of their employees subject only to some administrative
`oversight, and we do not believe that Congress meant to shoehorn into the
`CSRA every odd occurrence where a supervisor forms and leads such a
`renegade posse.”).
`
`Consider for example the Third Circuit’s recent decision in
`
`Manivannan v. DOE, 42 F.4th 163 (3d Cir. 2022). In that case, DOE
`attempted to fire a CSRA-covered scientist and then allowed him to resign.
`Manivannan sued DOE. Some of his claims challenged CSRA-covered
`personnel actions and hence could be brought under only the CSRA (and not
`under § 1331). Id. at 173 (holding employee could challenge DOE’s internal
`investigation only under the CSRA because that investigation constituted a
`CSRA-covered “significant change in working conditions”). But some of his
`claims were not covered by the CSRA and hence could be brought in the
`district court under § 1331. For example, DOE’s “decision to disclose an
`employee’s records to state prosecutors is not an adverse action” under
`Chapter 75 or a “personnel action” under Chapter 23. Ibid. Same with
`DOE’s conversion of Manivannan’s personal property:
`
`Even construing the CSRA’s language broadly, we fail to see
`how an employer’s alleged conversion of a former employee’s
`personal property, unrelated
`to
`the
`latter’s
`federal
`employment, constitutes a ‘disciplinary or corrective action,’
`5 U.S.C. § 2302(a)(2)(A)(iii), a ‘significant change in duties,
`id.
`responsibilities,
`or
`working
`conditions,’
`§ 2302(a)(2)(A)(xii), or any other employment action set out
`in the statute.
`
`Id. at 174.
`
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`No. 22-40043
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`In short, the text and structure of the CSRA creates a decades-old,
`
`well-established, bright-line rule: Federal employees must bring challenges
`to CSRA-covered personnel actions through the CSRA, but they remain free
`to bring other, non-CSRA challenges under the district courts’ general § 1331
`jurisdiction.
`
`B.
`
`The CSRA’s purpose reinforces this conclusion. The CSRA was
`enacted “to replace the haphazard arrangements for administrative and
`judicial review of personnel action, part of the ‘outdated patchwork of
`statutes and rules built up over almost a century.’” Fausto, 484 U.S. at 444
`(quoting S. Rep. No. 95-969, at 3 (1978)). The old system created different
`grievance rights for federal employees in different agencies; it entailed
`labyrinthine and uncertain administrative review mechanisms
`that
`disincentivized managers from taking disciplinary action even when clearly
`warranted. See id. at 444–45 (citing S. Rep. No. 95-969, at 9 (1978)). The
`CSRA “replaced the patchwork system with an integrated scheme of
`administrative and judicial review, designed to balance the legitimate
`interests of the various categories of federal employees with the needs of
`sound and efficient administration.” Id. at 445 (citing S. Rep. No. 95-969,
`at 4 (1978)).
`
`Thus, the CSRA’s purpose is to streamline and integrate the review
`system for federal employees’ challenges to personnel actions. It does nothing
`to promote that purpose to interpret the CSRA as stripping § 1331
`jurisdiction over disputes beyond CSRA-covered personnel actions. If
`anything, it would disserve the CSRA’s purposes to rewrite it, as the
`Government requests, to strip jurisdiction over every claim any federal
`employee could ever bring. That’s because the MSPB has expertise in the
`byzantine procedures for taking and challenging CSRA-covered personnel
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`No. 22-40043
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`actions, but it knows nothing about peephole cameras and wiretaps and
`searches. It would substantially burden the MSPB to task it with such non-
`CSRA matters. And more to the point, if Congress wanted to make the CSRA
`process applicable to every claim an employee could ever bring against a
`federal employer, it could’ve said so. That would’ve made the CSRA less
`complicated by obviating all the personnel-action limitations in Chapter 23
`and Chapter 75—a road Congress plainly did not take. See SAS Inst., Inc. v.
`Iancu, 138 S. Ct. 1348, 1357 (2018) (“We need not and will not invent an
`atextual explanation for Congress’s drafting choices when the statute’s own
`terms supply an answer.” (quotation omitted)).
`
`The Government offers two responses. First, the Government claims
`
`that allowing plaintiffs to bring suits in district court would undermine the
`CSRA’s purpose of creating “an integrated scheme of review.” Gov’t En
`Banc Br. 22. The theory appears to be that federal employees can’t otherwise
`sue in district court, so it would undermine the integration of the MSPB and
`the Federal Circuit to allow this case to get past the CSRA’s roadblocks. This
`contention is quite odd. As the Government well knows, one of the most
`common suits brought by federal employees is the so-called “mixed case.”
`It’s so-called because the employee mixes CSRA-covered claims (for
`example, for CSRA-governed Chapter 75 violations) with non-CSRA claims
`(for example, for sex discrimination under Title VII). See Kloeckner, 568 U.S.
`at 44–48 (describing mixed cases). Both Congress and the Supreme Court
`say that federal employees are free to bring their mixed cases in district court
`without ever dealing with the MSPB or the Federal Circuit in any way. See 5
`U.S.C. § 7703(b)(2); Kloeckner, 568 U.S. at 50 (holding “mixed cases shall
`be filed in district court”); see also Punch v. Bridenstine, 945 F.3d 322, 324–25
`(5th Cir. 2019) (holding “the employee [bringing a mixed case] need not start
`with the MSPB—or take any of the roads running from it”—and instead can
`
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`file in district court). Thus, it’s simply not true that federal employees face
`an “integrated” grievance system that never includes district court.
`
`Second, the Government claims that it would create a “gaping
`loophole” if employees could see a CSRA-covered personnel action coming
`down the pike and then race to district court to invoke § 1331 jurisdiction
`before it otherwise disappears. Gov’t En Banc Br. 22. Of course it’s our job
`to interpret the words Congress actually wrote, not to entertain such policy
`arguments for writing the CSRA differently. See, e.g., Domino’s Pizza, Inc. v.
`McDonald, 546 U.S. 470, 479 (2006). And in any event, the Government’s
`policy concerns misunderstand the nature of plaintiffs’ claims. In a case like
`this one, where plaintiffs are not challenging a CSRA-covered personnel
`action, § 1331 jurisdiction would not disappear even if the Government took
`CSRA-covered personnel actions against them. That’s why, for example,
`Manivannan could litigate his non-CSRA claims even after incurring a CSRA-
`covered personnel action. See Manivannan, 42 F.4th at 174. So there’s no
`race to the courthouse because the plaintiff can stay in district court before or
`after the CSRA-covered personnel action so long as he’s not challenging that
`CSRA-covered personnel action.
`
`C.
`
`The text, structure, and purpose of the CSRA all show that it provides
`
`the exclusive review procedures and employment remedies for CSRA-
`covered personnel actions. The dispositive question therefore is whether
`plaintiffs are challenging CSRA-covered personnel actions. If they are, they
`must channel their claims through the CSRA; if they are not, their claims are
`cognizable in the district court.
`
`We hold plaintiffs are not challenging CSRA-covered personnel
`
`actions. Plaintiffs are challenging (under the Constitution, the APA, and the
`DJA) the President’s executive orders requiring federal employees to make
`
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`irreversible medical decisions to take COVID-19 vaccines. “Even construing
`the CSRA’s language broadly, we fail to see how an employer’s” medical
`mandate could constitute a covered personnel action. Ibid.
`
`We (1) begin with Chapter 23. Then we (2) discuss Chapter 75.
`
`1.
`
`First, the Government fails to prove plaintiffs are challenging a
`
`“personnel action” under Chapter 23. Neither § 2302(a)(2)(A)(xii)
`(“romanette xii”) nor § 2302(a)(2)(A)(iii) (“romanette iii”) applies to
`plaintiffs’ claims.
`
`Romanette xii
`
`Romanette xii is a residual clause that appears at the end of a twelve-
`item list. After defining Chapter 23’s “personnel action[s]” to include things
`such as appointments, promotions, and reassignments, Congress concluded
`the list by covering “any other significant change in duties, responsibilities,
`or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). Such residual clauses
`trigger “the maxim ejusdem generis, the statutory canon that where general
`words follow specific words in a statutory enumeration, the general words are
`construed to embrace only objects similar in nature to those objects
`enumerated by the preceding specific words.” Circuit City Stores, Inc. v.
`Adams, 532 U.S. 105, 114–15 (2001) (quotation omitted). All eleven of the
`personnel actions that precede romanette xii are typical, everyday
`employment decisions to, say, promote or reassign a single employee; none
`is an irrevocable decision that extends beyond the term of employment. See
`Turner v. U.S. Agency for Glob. Media, 502 F. Supp. 3d 333, 367 (D.D.C. 2020)
`(“[C]ourts have determined that the term ‘working conditions’ generally
`refers to the daily, concrete parameters of a job, for example, hours, discrete
`assignments, and the provision of necessary equipment and resources.”).
`Accordingly, we must interpret romanette xii to refer to these discrete
`
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`employment decisions—not government-wide mandates that commandeer
`the personal medical decisions of every federal employee. And we must
`interpret romanette xii to only include conditions that last for the duration of
`the employee’s
`job tenure—not mandated vaccinations that have
`consequences long after the employee leaves the federal workforce.
`
`Moreover, it strains romanette xii’s text far beyond its breaking point
`to say it includes permanent medical decisions made outside the workplace.
`“[D]uties, responsibilities, or working conditions” plainly refer to duties,
`responsibilities, or working conditions of the employee’s workplace. 5 U.S.C.
`§ 2302(a)(2)(A)(xii). It doesn’t apply to personal medical choices. That
`result follows a fortiori from Gustafson because if “working conditions” does
`not include peephole cameras in workplace changing rooms, it certainly does
`not include private, irreversible medical decisions made in consultation with
`private medical professionals outside the federal workplace. See 803 F.3d at
`888.
`
`This interpretation of romanette xii is further reinforced by the
`Supreme Court’s decision in NFIB v. OSHA, 142 S. Ct. 661 (2022) (per
`curiam). There, the Court considered whether OSHA’s COVID-19 vaccine
`mandate could constitute an “occupational safety and health standard[].” Id.
`at 665 (quoting 29 U.S.C. § 655(b)). The Court held no—both because “[w]e
`expect Congress to speak clearly when authorizing an agency to exercise
`powers of vast economic and political significance,” and because workplace-
`safety standards refer to “hazards that employees face at work” and not
`“day-to-day dangers that all face from crime, air pollution, or any number of
`communicable diseases.” Ibid. (quotation omitted). Likewise here, Congress
`would need to speak much more clearly than it did in romanette xii if it
`wanted to strip § 1331 jurisdiction over challenges to a mandate that extends
`to every single federal employee’s irreversible medical decisions. Cf. Sistek v.
`Dep’t of Veterans Affs., 955 F.3d 948, 954–56 (Fed. Cir. 2020) (holding
`
`14
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`

`

`Case: 22-40043 Document: 304-1 Page: 15 Date Filed: 03/23/2023
`
`No. 22-40043
`
`Congress’s enumeration of eleven specific personnel actions in the first
`eleven clauses of § 2302(a)(2)(A) precludes interpreting the residual clause
`in romanette xii to include a modest retaliatory investigation of a single
`employee).
`
`Romanette iii
`
`Nor does romanette iii help the Government. It defines Chapter 23’s
`“personnel action[s]” to include “disciplinary or corrective action” against
`federal employees. 5 U.S.C. § 2302(a)(2)(A)(iii). But plaintiffs have not
`received any “disciplinary or corrective action,” and hence their claims do
`not challenge such actions. Some plaintiffs received “letters of counseling”
`and “letters of reprimand” for their failures to comply with the executive
`order. ROA.1195–1202, 1204, 1206, 1212, 1216, 1229, 1232, 1242, 1244, 1486,
`1493, 1745. But it’s well settled that such letters are not “disciplinary or
`corrective action[s]” under the CSRA. See, e.g., Sistek, 955 F.3d at 955–57
`(letter of reprimand was not a “personnel action” under the CSRA); Graham
`v. Ashcroft, 358 F.3d 931, 933 (D.C. Cir. 2004) (Roberts, J.) (letter of censure
`was not a “personnel action” under the CSRA).2 Absent any evidence of
`such action, the Government has no basis to suggest plaintiffs’ claims are
`governed by romanette iii.
`
`And the Government all but concedes the point. In its panel-stage
`brief, the Government obliquely suggests an employee could seek review
`under the CSRA when he receives a letter of reprimand, but it never explains
`
`
`2 The circuits likewise have held that letters of reprimand and other written
`warnings are not “materially adverse actions” in the analogous Title VII context. See
`Durant v. D.C. Gov’t, 875 F.3d 685, 698 (D.C. Cir. 2017); Baloch v. Kempthorne, 550 F.3d
`1191, 1199 (D.C. Cir. 2008) (Kavanaugh, J.); Medina v. Income Support Div., N.M., 413 F.3d
`1131, 1137 (10th Cir. 2005); Whitaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir. 2005);
`Stewart v. Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002); Krause v. City of La Crosse, 246 F.3d
`995, 1000 (7th Cir. 2001).
`
`15
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`Case: 22-40043 Document: 304-1 Page: 16 Date Filed: 03/23/2023
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`No. 22-40043
`
`how or why such review comports with a wall of contrary precedent from
`around the country. Moreover, the Government concedes that receipt of a
`letter is merely “an early stage of [a] still-hypothetical progressive disciplinary
`process.” Blue Br. 24 (emphasis added). That concession all but proves that
`counseling and reprimand letters do not trigger the CSRA’s review
`provisions. And it’s telling that the Government abandons the point
`altogether in its later-filed briefs.3
`
`2.
`
`Second, the Government fails to prove that Chapter 75 implicitly
`
`strips the court of jurisdiction. As Judge Barksdale noted in his panel
`dissent, the Government has never argued that plaintiffs have suffered any of
`the Chapter 75 personnel actions. See Feds for Medical Freedom, 30 F.4th at
`513 (Barksdale, J., dissenting). And as Judge Barksdale correctly
`concluded, “[t]he EO’s enactment . . . does not constitute an adverse action
`subject to CSRA. The case at hand is instead a pre-enforcement challenge to
`a government-wide policy, imposed by the President, that would affect the
`2.1 million federal civilian workers, including the 6,000 members of Feds for
`Medical Freedom.” Ibid.
`
`In its en banc briefs, the Government does not contest Judge
`Barksdale’s premise; it effectively concedes that plaintiffs have not yet
`incurred reviewable Chapter 75 employment actions. Rather,
`the
`Government (incorrectly) contests Judge Barksdale’s conclusion; it
`contends plaintiffs might one day incur Chapter 75 actions, and that alone
`should implicitly strip the jurisdiction explicitly conferred by § 1331 today.
`
`
`
`3 Even if Chapter 23 did govern plaintiffs’ claims, it’s entirely speculative to think
`plaintiffs could ever get them before a federal court. See infra Part IV (discussing the OSC
`process).
`
`16
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`Case: 22-40043 Document: 304-1 Page: 17 Date Filed: 03/23/2023
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`No. 22-40043
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`We disagree. “It is quite clear, that the jurisdiction of the Court
`depends upon the state of things at the time of the action brought, and that
`after vesting, it cannot be ousted by subsequent events.” Mollan v. Torrance,
`22 U.S. (9 Wheat.) 537, 539 (1824); see also Carr v. Alta Verde Indus., Inc., 931
`F.2d 1055, 1061 (5th Cir. 1991) (“As with all questions of subject matter
`jurisdiction except mootness, standing is determined as of the date of the
`filing of the complaint, and subsequent events do not deprive the court of
`jurisdiction.”). And it’s equally clear that we do not make jurisdictional
`determinations based on hypothetical future facts. See, e.g., Clapper v.
`Amnesty Int’l USA, 568 U.S. 398, 409–11 (2013) (rejecting attempt to make
`jurisdictional determinations based on “[a]llegations of possible future
`injury” and “mere speculation” about what the Government will do
`(quotation omitted)). Just as plaintiffs cannot invoke a district court’s
`jurisdiction based on speculation about what the Government will do in the
`future, the Government cannot deny a district court’s jurisdiction based on
`speculation about what its employment supervisors will do in the future.4
`
`
`
`4 The contrary rule would have untenable consequences. Consider, for example,
`the amount-in-controve