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 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. 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] I. When considering whether to grant a stay, “a court considers four factors: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’” Nken v. Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). In this case, all four factors favor granting a stay. II. The Government has made a strong showing that it is likely to succeed on the merits, for at least three independent reasons. A. As a threshold matter, the Government is likely to succeed in demonstrating on appeal that the district court lacks jurisdiction over this case. Congress requires covered federal employees to raise their workplace grievances through the administrative procedures set forth in the Civil Service Reform Act (CSRA). As the Supreme Court has explained, “[g]iven the painstaking detail with which the CSRA sets out the method for covered employees to obtain review of adverse employment actions, it is fairly discernible that Congress intended to deny such employees an additional avenue of review in district court.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 11- 12 (2012); see also Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991) (describing the CSRA as establishing “the comprehensive and exclusive procedures for settling work-related controversies between federal civil- service employees and the federal government”); 5 U.S.C. §§ 7512, 7513(d), 7703(b)(1) (making certain adverse employment actions against federal employees reviewable by Merit Systems Protection Board and Federal Circuit); id. §§ 1214(a)(3), 2302 (review scheme for less severe “prohibited personnel practice[s]“). For this reason alone, I would grant the stay.[4] B. Even if we were to ultimately determine that the district court has jurisdiction to hear this case, the Government is likely to succeed in showing that the President has authority to promulgate this executive order pertaining to the federal executive workforce. “Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (quoting U.S. Const. art. II, § 1, cl. 1; id. § 3). The President’s executive power has long been understood to include “general administrative control of those executing the laws.” Id. at 2197-98 (quoting Myers v. United States, 272 U.S. 52, 163-64 (1926)). Accordingly, the President “has the right to prescribe the qualifications of [Executive Branch] employees and to attach conditions to their employment.” Friedman v. Schwellenbach, 159 F.2d 22, 24 (D.C. Cir. 1946); see also Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 n.5 (1974) (noting “the President’s responsibility for the efficient operation of the Executive Branch”); Crandon v. United States, 494 U.S. 152, 180 (1990) (Scalia, J., concurring in the judgment) (describing “the President’s discretion-laden power” to regulate the Executive Branch under 5 U.S.C. § 7301); Nat’l Treasury Emps. Union v. Bush, 891 F.2d 99 (5th Cir. 1989) (upholding President Reagan’s executive order authorizing random drug testing of certain federal employees). Thus, the President, as head of the federal executive workforce, has authority to establish the same immunization requirement that many private employers have reasonably imposed to ensure workplace safety and prevent workplace disruptions caused by COVID-19. The district court rejected the above argument as “a bridge too far,” given “the current state of the law as just recently expressed by the Supreme Court” in NFIB v. OSHA, 142 S. Ct. 661 (2022), and Biden v. Missouri, 142 S. Ct. 647 (2022). However, the district court misapprehended the single, animating principle that all Justices embraced in these decisions. As Justice Gorsuch explained in his NFIB concurrence, “The central question we face today is: Who decides?” 142 S. Ct at 667 (Gorsuch, J., concurring). In NFIB, the Court stayed an immunization requirement that unelected agency officials imposed on private employers that do not receive federal funding, explaining that “[a]dministrative agencies are creatures of statute” and that the Occupational Safety and Health Act does not “plainly authorize[] the Secretary’s [immunization or testing] mandate.” 142 S. Ct. at 665. Comparatively, in Biden v. Missouri, which involved an immunization requirement that unelected agency officials imposed on the staff of healthcare facilities receiving Medicare and Medicaid funding, the Court concluded that “the Secretary’s rule falls within the authorities that Congress has conferred upon him.” 142 S. Ct. at 652. Notably, even the dissenting Justices in that case acknowledged that “[v]accine mandates . . . fall squarely within a State’s police power.” Id. at 658 (Thomas, J., dissenting); see also NFIB v. OSHA, 142 S. Ct at 667 (Gorsuch, J., concurring) (“There is no question that state and local authorities possess considerable power to regulate public health.”). Thus, in these two cases, the Court gave a consensus answer to Justice Gorsuch’s question: it is elected, democratically-accountable officials, including members of Congress[5] and state legislators, who have authority to decide—and answer for—the infection-fighting measures that they impose, including immunization requirements, such as mandatory smallpox vaccination, that our country has utilized for centuries. See Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding the authority of states to enforce compulsory vaccination laws).[6] The President is not an unelected administrator. He is instead the head of a co-equal branch of government and the most singularly accountable elected official in the country. This federal workplace safety order displaces no state police powers and coerces no private sector employers. Instead, consistent with his Article II duty to “take Care that the Laws be faithfully executed,” the President is performing his role as CEO of the federal workforce,[7] taking executive action in order to keep open essential government buildings;[8] to maintain the provision of vital government services, such as the Transportation Security Administration; and to prevent unvaccinated federal employees from infecting co-workers or members of the public who, whether because of age or infirmity, might be highly vulnerable to hospitalization and death. Federal employees that disagree with the content of Executive Order 14043 retain the right to claim an exemption, to leave the government’s employment, to collectively bargain, and to challenge the order through the CSRA. And, of course, any American that disagrees with the content of the order has the right to vote the President out of office. Thus, consistent with NFIB v. OSHA and Biden v. Missouri, accountability for the federal executive employee immunization requirement is open, obvious, and vested in one elected, democratically-accountable official. These two cases do not cast doubt on, but rather determinatively confirm, the President’s power to issue Executive Order No. 14043. C. In addition to the issues discussed above, the government is also likely to succeed in showing that the plaintiffs have not met their burden for obtaining a preliminary injunction. A plaintiff seeking such an injunction must establish, among other requirements, “that he is likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). However, even if the plaintiffs were to lose their jobs as a result of this order,[9] we have explained in a previous case involving “discharge under the federal civil service laws” that “[i]t is practically universal jurisprudence in labor relations in this country that there is an adequate remedy for individual wrongful discharge after the fact of discharge”: “reinstatement and back pay.” Garcia v. United States, 680 F.2d 29, 31-32 (5th Cir. 1982). The CSRA makes this remedy available to the plaintiffs. See 5 U.S.C. § 7118(a)(7)(C). Accordingly, the plaintiffs cannot show that they are likely to suffer irreparable harm in the absence of preliminary relief. * * * For these three independent reasons, the Government has made a strong showing that its appeal is likely to succeed on the merits. III. In addition to likelihood of success on the merits, the other factors for a stay are also met in this case. As stated above, a court considering whether to grant a stay must consider not only “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits” but also “(2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken, 556 U.S. at 426. Looking at the second factor, the district court’s injunction places federal employees at a greater risk of hospitalization and death, not to mention being unable to work because of illness or the need to quarantine. As Jason Miller, the Deputy Director for Management at the Office of Management and Budget, explained in a comprehensive declaration submitted to the district court, the Government’s operational efficiency will be greatly impeded if this executive order cannot go into effect: In sum, each day that the vaccination requirement for Federal employees is delayed requires agencies that provide critical support for U.S. foreign policy, global financial systems, American infrastructure, and the pandemic response to devote additional time and resources to ensuring the safety of the Federal workforce above and beyond the substantial time and resources already devoted to these efforts—time and resources that would otherwise be spent doing critical mission function to the benefit of the American people. Thus, the Government will be irreparably injured absent a stay. Regarding the third factor, the issuance of a stay will not substantially injure the other parties in this proceeding. Even assuming that this executive order injures any plaintiff—as previously noted, the district court did not identify any particular plaintiff that faces imminent discipline or discharge— that injury can be remedied through reinstatement and backpay, for the reasons explained in supra Part II.C. Finally, the public has an indisputable interest not only in the Government’s operational efficiency but also in stemming the spread through the federal executive workforce, and beyond, of a highly contagious, deadly disease. Immunization requirements have proven extremely effective in the private sector. For example, the CEO of Tyson Foods has explained that even though less than half of the company’s employees were vaccinated when Tyson announced its immunization requirement in early August, by late October “over 96% of our active team members [were] vaccinated—or nearly 60,000 more than when we made the announcement.”[10] Similarly, according to the CEO of United Airlines, “[p]rior to our vaccine requirement, tragically, more than one United employee on average *per week* was dying from COVID,” but “we’ve now gone eight straight weeks with zero COVID-related deaths among our vaccinated employees.”[11] Though the district court asserted, without evidence or citation, that “there is no reason to believe that the public interest cannot be served via less restrictive measures than the mandate” and that “[s]topping the spread of COVID-19 will not be achieved by overbroad policies like the federal-worker mandate,” the public interest is not served by a single Article III district judge, lacking public health expertise and made unaccountable through life tenure, telling the President of the United States, in his capacity as CEO of the federal workforce, that he cannot take the same lifesaving workplace safety measures as these private sector CEOs. IV. For the foregoing reasons, I would grant the stay. However, even if I were to conclude that the motion should be denied with respect to these plaintiffs, I would grant the Government’s motion insofar as the district court’s nationwide preliminary injunction applies to any person or entity that is not either a named plaintiff or an individual possessing, at the time the complaint was filed, bona fide indicia of membership in one of the plaintiff organizations. As we recently explained, nationwide injunctions “can constitute ‘rushed, high-stake, low-information decisions,’ while more limited equitable relief can be beneficial.” Louisiana v. Becerra, 20 F.4th 260, 264 (5th Cir. 2021) (quoting Department of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of a stay)); see also Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring) (observing that nationwide injunctions “are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch”).[12] Cognizant of the separation of powers, as well as our judicial ignorance of the immense task of running the executive branch of government, for which the President, informed by public health experts, is solely accountable, I would not allow an unelected lower court to impose its Article III fiat on millions of Article II employees, above all when a dozen other lower courts have declined to enjoin the President’s order.
