Union Files Another Legal Challenge to the COVID-19 Vaccine Mandate for Feds

The union representing federal prisons workers last week filed a second lawsuit challenging the coronavirus vaccine mandate. 

On November 23, the Council of Prison Locals, a division of the American Federation of Government Employees, as well as AFGE Local 2018, which represents federal employees at a Marine Corps base in Twentynine, Palms, California, brought a lawsuit in the Eastern District of Pennsylvania against President Biden, Office of Personnel Management Director Kiran Ahuja, Attorney General Merrick Garland and Defense Secretary Lloyd Austin III in an attempt to stop Biden’s executive order that requires federal employees to show proof of COVID-19 vaccination, unless they request an exemption. The federal prison employees union previously filed a lawsuit against the mandate on October 30, which was not the first on behalf of federal employees overall. 

“By requiring workers across America to disclose their vaccination status, defendants Kiran Ahuja and Joseph R. Biden are forcing them to engage in un-sought-out, and individually undesirable, political speech in violation of the First Amendment,” said the complaint. “Additionally, the OPM mandate disregards the rights of unionized employees as outlined and protected in the Civil Service Reform Act in which all changes to terms and conditions of employees must be bargained in good faith.” 

Finally, “retaliation against complaints or concerns about safety is prohibited by law, yet the OPM mandate has invited employers to terminate employees without the option of weekly testing and masks” 

The lawsuit alleges four counts of violations: compulsion of political speech; violation of the free exercise clause of the First Amendment of the U.S. Constitution; violation of the rights to privacy and bodily autonomy under the Fourteenth Amendment of the U.S. Constitution; and unfair labor practices under the Civil Service Reform Act. 

The plaintiffs are seeking to cease enforcement of the executive order and be awarded compensatory damages for “their losses caused by defendants’ activities,” costs and counsel fees and any other further damages deemed appropriate by the court. Two of the attorneys for the plaintiffs––Bruce Castor and Michael van der Veen––represented President Trump during his second impeachment trial, which led to his acquittal in the Senate. 

Government Executive asked the bureau of prisons union what employees exactly the lawsuit covers. 

"As a matter of the violation of individual Constitutional rights, we do not believe any action(s) of the court(s) should be restricted to bargaining status or membership," said Shane Fausey, president of the National Council of Prison Locals 33. "Although the Council of Prison Locals is the exclusive bargaining unit representative, I don’t believe the court(s) would restrict its constitutional decision to members only. "

Earlier this month, in a separate lawsuit brought by 18 civilian employees and two members of the U.S. Marine Corps, a federal judge in Washington, D.C., chose to not block the vaccine mandate for federal employees. Meanwhile, there is a temporary hold on the Occupational Safety and Health Administration’s vaccine rule for private business and on Monday, a federal judge in Missouri blocked the vaccine mandate for Medicare & Medicaid workers in 10 states. There are also numerous legal challenges to the vaccine mandate for federal contractors. 

Government Executive previously reported that some Bureau of Prisons employees are considering resigning or retiring early over the vaccine mandate and that the union is concerned it could exacerbate the agency’s staffing crisis. 

Currently, 123 inmates and 260 staff members have positive COVID-19 cases; 42,185 inmates and 8,461 staff have recovered; and there have been 267 inmate and seven staff deaths attributed to COVID-19. Ten of the inmate deaths happened while on home confinement, according to BOP’s data. 

The lawsuit came one day after the deadline for federal employees to submit their proof of vaccination or request an exemption. 

“As more than 3,500 of our officers and employees ...(nearly 10% of our total national staffing complement) are facing potential termination during this holiday season, this mandate will exacerbate a staffing crisis that has persisted for years,” said Fausey, in a statement on November 24, obtained by Government Executive. “The potentially dangerous effects on our nation's federal prisons and their local communities are unacceptable.”

As of November 23, the Justice Department, which houses the prisons bureau, had a 97.4% compliance rate with the mandate and 89.8% vaccination rate, according to data the Office of Management and Budget released. Government Executive reached out to BOP and Justice for BOP’s numbers. BOP acknowledged receipt of the request, but was unable to respond by the time of this article’s publication, and Justice did not respond. 

Then on Monday, OMB and OPM officials said in an email, obtained by Government Executive, that agencies should wait until January to start suspending federal employees who are not in compliance with the mandate. 

When asked for comment on the number of counseling letters and the new lawsuit, a Bureau Of Prisons spokesperson reiterated that Biden signed executive orders mandating coronavirus vaccines for federal employees and most federal contractors. 

The Justice Department inspector general’s office has several ongoing reviews about how the prisons bureau handled the pandemic, as outlined in its most recent semi-annual report released on Monday. This includes a review of the use of home confinement, survey of inmates’ experiences during the pandemic and a capstone on how the office conducted remote inspections of Bureau of Prisons facilities. 

Update: This article has been updated with additional comment from the federal prison employees union.