United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ___________ FILED February 9, 2022 No. 22-40043 Lyle W. Cayce ___________ Clerk 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 No. 22-40043 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. 2 No. 22-40043 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 …
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