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Judge tosses lawsuit challenging FBI’s coronavirus testing policy

FBI employees and others had argued it was ‘unlawful and unconstitutional’ to require unvaccinated staff get tested weekly

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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.

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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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