iOn January 30, 2023, the Biden administration stated that it intends to extend the previously declared COVID-19 national emergency and the separately declared public health emergency until May 11, 2023, and then end both emergency declarations. This statement comes in response to Congressional attempts to declare an earlier end date to the emergencies with the Pandemic is Over Act and a joint resolution. Regardless of what happens politically, however, nearly three years after the original March 13, 2020, national COVID-19 emergency declaration, multi-state litigation is still ongoing to stop the implementation of a federal contractor COVID-19 vaccine mandate pursuant to Executive Order 14042.
Background
We have reported on this issue previously, but the order, issued on September 9, 2021, directed federal executive agencies to amend solicitations and contracts, in effect, to include a COVID-19 vaccination requirement for federal contractors and subcontractors. Nearly as soon as the president issued the order, various individuals and organizations filed suit to oppose it. The most effective suits have been filed by the attorneys general of 26 states in the Eastern District of Kentucky, the Southern District of Georgia, the Eastern District of Missouri, the Western District of Louisiana, the Middle District of Florida, the Southern District of Texas, and the District of Arizona.
The Biden administration has lost these cases across the board at both the district and appellate levels, although several appellate courts have narrowed the injunctive relief granted by the district courts. The states’ main argument has been that the president exceeded his authority under the Federal Property and Administrative Services Act (Procurement Act), 40 U.S.C. § 101 et seq., when he issued the order. The Procurement Act’s purpose is “to provide the Federal Government with an economical and efficient system” for procuring and supplying property and various nonpersonal services.
The following is a summary of the statuses of the adjudicated cases:
- On November 30, 2021, in Kentucky v. Biden, the U.S. District Court for the Eastern District of Kentucky enjoined enforcement of the vaccine mandate in Kentucky, Ohio, and Tennessee. The United States appealed to the Sixth Circuit, which, on January 12, 2023, affirmed the district court’s preliminary injunction but narrowed its scope “to prohibit the federal government from enforcing the contractor mandate against the parties only” and not against non-party contractors in the plaintiff states.
- On December 7, 2021, in Georgia v. Biden, the U.S. District Court for the Southern District of Georgia enjoined enforcement of the vaccine mandate nationwide. The state plaintiffs here are Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia. The United States appealed to the Eleventh Circuit, which, on August 26, 2022, affirmed the district court’s order to the extent that it enjoined federal agencies from enforcing the vaccine mandate against the state plaintiffs (and a separate trade organization plaintiff, Associated Builders and Contractors), but otherwise vacated the preliminary injunction.
- On December 16, 2021, in Louisiana v. Biden, the U.S. District Court for the Western District of Louisiana enjoined enforcement of the order in contracts between the states of Louisiana, Indiana, or Mississippi or their agencies and the federal government. The United States appealed to the Fifth Circuit, which, on December 19, 2022, affirmed the district court’s preliminary injunction.
- On December 30, 2021, in Florida v. Nelson, the U.S. District Court for the Middle District of Florida enjoined enforcement of the order in Florida. The United States initially appealed to the Eleventh Circuit but then, on October 24, 2022, moved to dismiss its appeal voluntarily.
- The U.S. District Court for the Southern District of Texas is the only court to have denied a motion for a preliminary injunction. It did so, however, in an order issued on October 20, 2022, only because Texas had failed to show imminent harm, due to the federal government’s public guidance to contractors that agencies would not enforce the vaccine mandate while cases were still pending.
Two appeals remain unresolved:
- On December 20, 2021, in Missouri v. Biden, the U.S. District Court for the Eastern District of Missouri enjoined enforcement of the order in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming, which are the state plaintiffs. The United States appealed to the Eighth Circuit, which heard oral argument on September 21, 2022, but has not yet issued a decision.
- On January 27, 2022, in Brnovich v. Biden, the U.S. District Court for the District of Arizona enjoined enforcement of the order in Arizona by federal agencies. The United States appealed to the Ninth Circuit, which has scheduled oral argument for March 7, 2023.
Takeaway
The COVID-19 pandemic may have (finally) mostly ended, but that is probably not the end of the issue of whether the federal government can compel contractor employees to get vaccinated, based on the president’s authority under the Procurement Act, which prescribes policies and directives to promote an economical and efficient federal government contracting system. The Fifth Circuit and Eleventh Circuit decisions included dissents that noted the prior Executive Orders of similarly broad scope have been upheld. It would, therefore, not be surprising to see the matter ultimately go to the Supreme Court.
