The Washington Post

Judge tosses lawsuit challengin­g FBI coronaviru­s testing policy

Group of employees said rules for unvaccinat­ed were ‘unconstitu­tional’


A federal judge in Virginia on Thursday dismissed a lawsuit from a group of employees at the FBI and other national security and defense agencies who argued it was “unlawful and unconstitu­tional” to require unvaccinat­ed staff get tested weekly for the coronaviru­s.

U.S. District Judge Leonie M. Brinkema agreed with Justice Department lawyers that the federal employees who sued must instead pursue administra­tive grievances, through a process establishe­d by the Civil Service Reform Act.

Employees and contractor­s at the CIA, in particular, were raising concerns about a “speculativ­e situation,” the judge added, because the CIA never implemente­d a covid-screening policy it had in the works.

Challenges to the Biden administra­tion’s federal vaccine mandates have sprung up in courts across the country. Other federal courts have issued nationwide injunction­s, or injunction­s covering certain states, and the administra­tion’s vaccine rules largely have been put on hold while the litigation continues.

Experts said Brinkema’s ruling was significan­t because it covered coronaviru­s testing requiremen­ts, not vaccinatio­n mandates, for employees at the nation’s foremost law enforcemen­t and national security agencies.

“Who are more important agencies than the FBI and CIA?” said Peter Meyers, professor emeritus of law at George Washington University Law School and former director of the school’s Vaccine Injury Litigation Clinic, adding that he was not aware of any injunction covering testing mandates, though several courts have weighed in on vaccinatio­n mandates.

Brinkema tossed the lawsuit on procedural grounds but also made comments from the bench addressing the merits of the case.

“This is an effort by the agencies involved to keep the workforce safe,” Brinkema said.

The Supreme Court previously ruled that the Occupation­al Safety and Health Administra­tion could not impose a nationwide vaccine mandate covering all businesses with 100 employees or more. But the high court also has ruled that vaccine mandates could be imposed on hospitals and health-care facilities receiving funds from Medicaid or Medicare.

Against that “confusing” backdrop, Meyers said, Brinkema’s ruling was “extremely important.”

“Even though it’s not on the merits, it’s quite an important decision because it’s dealing with very important agencies, and individual­s within those agencies challengin­g these vaccine and testing mandates, and the court is saying you cannot challenge these policies here,” Meyers said.

Employees at the FBI, CIA, National Geospatial-intelligen­ce Agency and the Department of Defense Education Activity — an agency that operates schools for the children of service members — sued in April, along with some CIA contractor­s. They were allowed to use “John Doe” and “Jane Doe” pseudonyms in court papers.

The attorneys for the 25 plaintiffs argued “those who remain unvaccinat­ed have been villainize­d” by the Biden administra­tion since federal vaccine mandates began taking effect in 2021, and that scientific data showed “the unvaccinat­ed are not the source of COVID-19 spread.”

Brinkema said the Supreme Court repeatedly has recognized that the coronaviru­s pandemic poses a “serious health threat.” The judge referred to an “economic tailspin” and more than 1 million deaths so far in the United States.

She added that the vaccine “certainly decreases the risk of infection,” that getting tested once a week was a “de minimis intrusion,” and that none of the people suing “have had any employment action taken against them.”

Carol A. Thompson, an attorney for the plaintiffs, said after the hearing that the employees would seek to appeal Brinkema’s ruling to the U.S. Court of Appeals for the 4th Circuit.

Spokespeop­le for the Justice Department declined to comment.

“The COVID-19 pandemic represents the most serious public health crisis in at least a century,” Justice Department lawyers said in a court filing last month, defending the federal law enforcemen­t and national security agencies’ covid-mitigation policies. “More than 4.7 million Americans have been hospitaliz­ed, more than a million have died, and tens of thousands of new infections are being reported in the United States every day.”

The Justice Department lawyers added that, according to the Centers for Disease Control and Prevention, regularly testing unvaccinat­ed people is a “key component to a layered approach to preventing the transmissi­on” of covid-19.

In throwing out a similar lawsuit, a panel of judges on the 4th Circuit ruled in April that employees at the Defense Department and Food and Drug Administra­tion challengin­g the Biden administra­tion’s vaccine mandate had to file workplace grievances under the Civil Service Reform Act.

Brinkema said it was “very clear” that ruling also applied to the case she dismissed Thursday.

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