Notice & Comment

Two COVID-Related Cases at the D.C. Circuit

Last week the D.C. Circuit decided two COVID-related cases: Shawnee Tribe v. Yellen, involving a challenge to distributions of federal COVID-related aid, and Payne v. Biden, involving a challenge to President Biden’s executive order requiring executive branch employees to have the COVID-19 vaccine.

The Shawnee Tribe case was not the first time that the D.C. Circuit has considered a suit by Native Nations challenging the distribution of federal relief under the Coronavirus Aid, Relief, and Economic Security Act. (For the prior judgment in Shawnee Tribe I, see here.) The core of the litigation concerned how the Secretary was counting Tribal populations for purposes of distributing the COVID-related funds. This time around, the D.C. Circuit considered two challenges to the 2021 distribution, which the Miccosukee Tribe of Indians of Florida and the Prairie Band Potawatomi Nation argued was arbitrary and capricious because it did not make up for the entirety of what they would have received in the 2020 distribution had the Secretary used the proper data on tribal populations. As for the Miccosukee Tribe’s challenge, the D.C. Circuit, in an opinion by Judge Rogers, held that the 2022 distribution had corrected the error and thus mooted the claim. As for the Prairie Band Potawatomi Nation’s challenge, the Court of Appeals reached the merits and concluded that the Secretary has more explaining to do because the Secretary had treated the Nation differently from other similarly-situated Native Nations when distributing federal relief. It therefore remanded to the Secretary for further explanation.

Payne v. Biden was about jurisdiction over a challenge to Executive Order No. 14,043, which required COVID-19 vaccinations for executive branch employees. Payne was a civilian working for the Department of the Navy who did not want the vaccine. He sued in federal district court on the day that the Order required him to be vaccinated and argued that the President’s order was unconstitutional. The District Court dismissed his suit under the Civil Service Reform Act (CSRA), which, the Court reasoned, required Payne to go through an administrative review process first, with review available in the Federal Circuit. The D.C. Circuit affirmed under the two-step test of Thunder Basin Coal Co. v. Reich (U.S. 1994). Payne stressed that he had not been fired and argued that the CSRA did not preclude his pre-enforcement claim, but the D.C. Circuit concluded otherwise: “The CSRA … covers pre-enforcement removal challenges like Mr. Payne’s because while he has not yet been terminated, Chapter 75 provides meaningful review for employees ‘against whom an action is proposed.'” Chapter 23 also provided a route to review of the vaccine mandate as a “prohibited personnel practice.” In a passage worth noting by CSRA practitioners, the Court explained that “to the extent that Mr. Payne finds support in our pre-1994 precedent identifying certain exceptions to a statutory scheme’s preclusive effect, … such exceptions cannot survive the Supreme Court’s subsequent decisions in Thunder Basin and [Elgin v. Dep’t of Treasury (U.S. 2012)].” In short, the D.C. Circuit explained, “in finding that Mr. Payne may proceed through the CSRA’s scheme, we necessarily find that should Mr. Payne choose to continue challenging the vaccine mandate, he must do so through the CSRA’s scheme.”

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