A Second Look: Parties Spar Over Vaccine Mandate In Eleventh Circuit Appeal From EO 14042 Injunction

Morrison & Foerster LLP - Government Contracts Insights

It has been more than two months since the U.S. District Court for the Southern District of Georgia issued a nationwide preliminary injunction of Executive Order 14042, the Biden Administration’s effort to impose a vaccine requirement on federal contractors.  Since then, the district court has clarified the scope of its injunction, and a number of other trial courts have weighed in.  But the fate of EO 14042 is still far from settled.  The next major test will come in the U.S. Court of Appeals for the Eleventh Circuit, where the government has appealed the Georgia trial court’s order granting the preliminary injunction.  Oral argument is not scheduled to take place until April, but now that the parties (and a few amici curiae) have had a chance to submit their appellate briefs, it’s worth taking a moment to examine the legal issues at play.  A brief summary of each party’s arguments on appeal follows:

The federal government identifies the following three issues for the Eleventh Circuit’s review: (1) whether EO 14042 is a lawful exercise of the President’s authority under the Federal Property and Administrative Services Act, or the Procurement Act; (2) whether the plaintiffs failed to establish the equitable requirements for preliminary injunctive relief; and (3) whether the scope of the preliminary injunction is overbroad.

  • On the first question, the government argues that because the Procurement Act authorizes the President to “prescribe policies and directives” that he considers “necessary” to ensure “an economical and efficient system” for procurement, and COVID disrupts work by causing absences or spreading illness, EO 14042’s vaccine mandate serves the statute’s goals. The “major questions” doctrine—under which the trial court presumed that Congress would have specifically authorized a vaccine mandate if it had intended to provide such power via the Procurement Act—applies only when, unlike here, the Executive Branch exercises regulatory authority and when it is unclear whether the statute delegates power to the Executive Branch.  Likewise, the Procurement Act’s economy-and-efficiency standard does not create non-delegation problems because that standard supplies an intelligible principle guiding the President’s actions.  And federal contracting does not implicate federalism concerns at all.
  • As for the equities informing injunctive relief, the government argues that plaintiffs never established irreparable injury because compliance costs are insufficient to constitute irreparable harm, while enjoining the mandate would harm productivity in vital contracts such as those relating to national security and public health.
  • Finally, the government argues that the nationwide injunction is overbroad and should have been limited to parties to this suit under fundamental constitutional and remedial principles.

In response, appellees state plaintiffs (Georgia, Alabama, West Virginia, Kansas, Idaho, South Carolina, Utah) and Associated Builders and Contractors, Inc. (Associated), defend the district court’s order in separate briefs.

  • State plaintiffs argue that EO 14042 exceeded the President’s authority because the Procurement Act authorizes only modest control over the government’s internal operations, not extensive power to set health and safety measures at private companies. The government did not adequately explain its efficiency rationale, the states argue, and, in any event, the guidance and FAR deviation clause implementing the vaccine mandate violated procedural requirements by never going through notice-and-comment.
  • The equities also favored an injunction, the states say, because the EO forces them to choose between losing hundreds of millions of dollars in federal contracts or firing employees who cannot be replaced.
  • The injunction is proper in scope, the states argue, because only one plaintiff in a group needs to establish standing to seek relief, and all the states enter into contracts with the federal government.
  • Associated, meanwhile, relies heavily on the S. Supreme Court’s decision halting the Occupational Safety and Health Administration’s vaccine-or-test mandate in arguing that EO 14042 exceeded the President’s authority. Both cases implicate constitutional limitations on executive authority and the lack of a clear congressional mandate.  Because the Supreme Court has already concluded that COVID is a universal problem, not a special workplace risk, Associated argues that the same considerations make the government unlikely to prevail on the merits here.
  • Equitable considerations also favor plaintiffs, Associated contends, because of the potential for disqualification from bidding and the incurrence of considerable administrative costs necessary for compliance, while Omicron variant COVID infections are in decline.
  • Like the states, Associated also argues that the universal scope of the injunction is appropriate because federal contracting occurs nationwide.

In addition to the parties’ submissions, two amici curiae have also filed briefs, both in support of plaintiffs-appellees.

  • The Chamber of Commerce brief focuses on statutory authority, arguing that the Procurement Act does not support the exercise of authority in EO 14042 for the same reasons discussed in appellant’s briefs. And like Associated, the Chamber draws a direct parallel to the Supreme Court’s treatment of the OSHA mandate.
  • In their brief, state amici (Florida, Alaska, Arkansas, Arizona, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Dakota, Tennessee, and Texas) expand on the arguments that the government committed procedural errors in implementing EO 14042. In addition to the notice and comment point, state amici also contend that the government improperly allowed the Safer Federal Workforce Task Forceto set the terms of the mandate, and that the resulting policy was arbitrary and capricious in violation of the Administrative Procedure Act for failing to recognize countervailing policy arguments.

The federal government addressed most of these various arguments in its reply brief.

  • On statutory authority, the government replies that nothing in the Procurement Act’s text or case law interpreting it supports plaintiffs’ restrictive reading, and that there is no real difference between contracting requirements that directly enhance economy and efficiency and those that do so indirectly via health measures.
  • The government’s reply also responds, for the first time on appeal, to plaintiff states’ and amici states’ arguments that EO 14042 suffers from procedural defects. The district court never reached those issues, the government notes.  But in any event, neither the Task Force Guidance nor the FAR Council memo are final agency action because they lack immediate legal force without further action.  In addition, the OMB’s acting director’s separate determination was not subject to notice and comment requirements because she was exercising authority delegated directly by the President. And she complied with that statutory framework anyway by expressly waiving the notice and comment requirement in light of compelling circumstances.

The Eleventh Circuit is set to hold oral argument on April 8 and could issue a decision any time after that.  While this case is the first to reach full briefing in a court of appeals, other federal appellate courts—including the Fifth, Sixth, and Eighth Circuits—will soon be considering these issues, too.  Of course, if the OSHA vaccine-or-test mandate is any indication, the Supreme Court may ultimately have the final word.  As always, we will continue to monitor and provide updates on these developments.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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