After we published our article last week about the status of the four federal vaccine mandates, we learned that a seventh district court had enjoined the federal contractor COVID-19 vaccine mandate, continuing a remarkable string of losses for the Department of Justice (DOJ) in their attempts to defend President Biden’s Executive Order (EO) 14042. While the District Court for the District of Arizona has not yet finalized all of the details of its injunction that only applies in Arizona (the parties will be briefing that issue over the next week), this is yet another indication that the contractor mandate is unlikely ever to be fully implemented in its current form.
On September 14, the state of Arizona, along with several other entities and individuals, filed suit challenging both the contractor vaccine mandate and the federal employee vaccine mandate ordered in EO 14043. The Order issued on January 27 held the challenge to the federal employee mandate was not yet ripe, but it enjoined the contractor mandate.
As an initial matter, the court agreed with DOJ that the plaintiff challenging the employee mandate did not have standing because he had a medical exemption request pending and was, therefore, not required to be vaccinated or subject to discipline at that time and may never be if the request is granted. Because his alleged injury – have the vaccine or be terminated – may never occur, any opinion issued in response to his claim would be “merely advisory,” and therefore, his claim was unripe. The court similarly held that Arizona did not have standing to challenge the employee mandate because its employees were not subject to it, and the mandate did not infringe on Arizona’s sovereignty.
But the court held that it had jurisdiction to hear the challenge to the contractor mandate because Arizona had shown that it was “likely to suffer direct injury as a result of the Contractor Mandate” because it would be forced to choose between “forfeiting numerous and significant federal contracts” and ordering its employees to be vaccinated. Nor was the court convinced by DOJ’s argument that the contractor mandate was simply a contracting requirement and therefore did not invade state sovereignty. Rather, the contractor mandate, which impacted one-fifth of the United States workforce, was an exercise of regulatory authority.
The Arizona District Court denied DOJ’s argument that district court was not the proper forum because the contractor mandate fell within the Court of Federal Claims (COFC) exclusive jurisdiction under the Contract Disputes Act and the Tucker Act. The court held that because the claim was not founded upon any express or implied contract with the United States, but rather in the Constitution and laws of the United States, it did not come within COFC’s exclusive jurisdiction.
As to the question of the plaintiffs’ entitlement to a preliminary injunction, the court, like five of the six other district courts that have considered the issue, held that the plaintiffs were likely to succeed in their argument that the Federal Property and Administrative Services Act, 40 U.S.C. § 101, et seq. (FPASA), did not authorize the president to issue a broad public health mandate. Instead, the court held that FPASA gives the president the authority to “provide the Federal Government with an economical and efficient system” for procurement.
Ultimately, the court held that the contractor mandate exceeded the scope of the president’s authority for three reasons:
- FPASA’s plain language does not authorize the president to issue the vaccine mandates.
- DOJ’s interpretation of FPASA lacked any limiting principle and would allow the president “a breathtaking amount of authority” that would include, for example, authority to “issue an executive order requiring all federal contractor employees to refrain from consuming soda or eating fast food” using the argument that “obesity, diabetes, and other health issues linked to the consumption of sugary drinks and fast food … led to absenteeism and a lack of productivity in the workplace.” Instead, the court held that policies issued pursuant to FPASA had to relate “more than incidentally – to ” (Emphasis in original).
- Congress had not clearly authorized the president to direct that one-fifth of the nation’s workforce be vaccinated, a matter of “vast economic and political significance,” therefore the court held that that the president did not have authority to issue the mandate..
- FPASA authorizes the president to issue procurement policies, not directives related to public health. And in 70 years since the passage of FPASA, the authority has never been used “to effectuate sweeping public health policy.”
- DOJ’s broad interpretation of FPASA “raises serious constitutional questions.” Specifically, if FPASA was broad enough to permit the president to issue a public health measure applicable to 80 million people, it would potentially violate the rarely referenced non-delegation doctrine.
- Whether individuals must be vaccinated – an exercise of “police power” – is an issue left to the states under the Tenth Amendment. And while federal law can supersede state law, if it is intruding into an area like public health that “States have traditionally occupied,” it can only do so “if that [is] the clear and manifest purpose of Congress.”
The court also held that neither the issuance of the Office of Management and Budget determination in support of the Safer Federal Workforce Task Force Guidance, the September 30 Federal Acquisition Regulatory Council memorandum setting forth the proposed contract provision, FAR 52.223-99, nor the Task Force’s FAQs violated the procedural requirements of the Procurement Policy Act at 41 U.S.C. § 1707. Nor was the court persuaded by the plaintiffs’ argument that because the vaccines were only approved under an Emergency Use Authorization, which no longer appears to be the case for the Pfizer vaccine, contractor and subcontractor employees had “the right to accept or refuse administration of the vaccines,” and therefore the contractor mandate was improper. Or by the argument that the contractor mandate violated the plaintiffs’ due process right to bodily integrity and to refuse medical treatment.
After then concluding that the plaintiffs would likely suffer irreparable injury and that both the balance of the equities and the public interest weighed in favor of issuing an injunction, the court determined that “[e]quitable remedies [such as injunctions] should redress only the injuries sustained by a particular plaintiff in a particular case,” the court enjoined the federal defendants from enforcing the contractor mandate “limited to the geographic boundaries of the State of Arizona.” The court asked the parties to brief the form of the injunction over the next week and stated that “[t]here being no reason for delay … the Court will enter judgment on the Vaccine Counts upon entering a permanent injunction, in a subsequent order.”
As we have said in previous posts, because it is impossible to predict the outcome in litigation, contractors should remain on standby if a circuit court or the Supreme Court reinstates the contractor mandate. But as the government losses mount, that is becoming less likely by the day. The government’s record in defending against preliminary injunction motions is now 0-7 at the district court level, and it is 0-2 in circuit courts in motions for stays of the injunctions pending appeal. At this point, it seems doubtful that record is going to improve.