FIRST ON FOX - A conservative legal group set up by former Trump adviser Stephen Miller is suing the Biden administration on behalf of a 20-year Navy employee over the federal employee COVID-19 vaccine mandate.
More than 3.5 million federal employees had until Nov. 22 to provide proof to their employers that they have received at least one dose of a COVID-19 vaccine or an approved exemption under the president's September executive order.
"The ends always justify the means for the Biden Administration — even if that means acting with no lawful authority, or acting in a manner directly contrary to the law," America First Legal (AFL) Vice-President and General Counsel Gene Hamilton told Fox News in a statement.
Hamilton continued: "President Biden is not a king, his Administration is no royal court, and he has no inherent authority to act in this tyrannical way and intrude on the rights of all federal employees. This case is a righteous fight not only for our client, but for all federal employees, and for the separation of powers."
The lawsuit filed Monday on behalf of Jason Payne argues that the mandate is unlawful and unconstitutional. It also states that Payne has natural immunity to COVID-19 after he contracted and recovered from the virus in 2020. Payne "refuses" to get the vaccine. As a result, he has been promised that he will lose his job, according to the lawsuit.
"No matter how much any president wants to attack some specific problems … that desire to address the issue does not provide the president with independent authority to do something about it," Hamilton said in an interview with Fox News. "And in our federal system of government, this is not a case where the federal government has the authority unless Congress acts otherwise. So … his entire higher federal employee vaccination mandate executive order is built on a house of cards."
A senior administration official told Fox News on Monday that 95% of the federal workforce is in compliance with the vaccine requirement.
There are, however, "still hundreds of thousands of employees" who fall within that remaining 5% "who haven't been vaccinated across the country."
"This is still a very, very big deal because it involves the sheer number of federal employees and also because this is an area where the Biden administration from the president on down has acted in a manner completely contrary to the law because they want a desired outcome," Hamilton said.
Payne is still employed but understands that under the guidance of office, he may still be terminated under Biden's executive order.
The Occupational Safety and Health Administration (OSHA) on Nov. 4 announced the new vaccine rule requiring certain U.S. employers to ensure all their workers are either fully vaccinated by Jan. 4 or subject to weekly testing and mask-wearing.
On Nov. 12, the Fifth Circuit Court of Appeals ordered OSHA to "take no steps to implement or enforce the Mandate until further court order." The decision was the first development in what is expected to be a lengthy legal battle over the mandate’s legality.
In addition, a federal judicial panel has assigned the 6th Circuit Appeals Court in Cincinnati to handle over 30 cases filed around the country challenging the mandate.
The Department of Justice asked the 6th Circuit on Tuesday to lift the existing stay and reinstate the vaccine mandate for businesses with more than 100 employees.
There have been 771,576 deaths due to the virus since the pandemic started, though that number is currently trending downward. Since Jan. 1 of this year, 386,233 people have died due to the virus, compared to last year's toll of 385,343. Nearly 60% of the U.S. population is fully vaccinated.
Fox News' Caitlin McFall contributed to this report.