On January 12, 2023, the U.S. Court of Appeals for the Sixth Circuit joined the Fifth and Eleventh Circuits in upholding a preliminary injunction against the enforcement of the Biden Administration's effort to impose on federal contractors a variety of COVID-19 safety-related protocols, including a vaccine mandate. Describing the scope of the executive mandate as "stunning," the Sixth Circuit concluded that the Federal Property and Administrative Services Act (commonly known as the Procurement Act or Property Act) "does not confer the authority to promulgate a rule, including the contractor mandate, that simply makes contractors more efficient," and that "the President exceeded his authority in issuing" Executive Order 14042. The district court nonetheless abused its discretion in enjoining the requirement for all federal contractors in the plaintiff states, the Court of Appeals held, and limited the preliminary injunction to the parties to this case only: Ohio, Kentucky, Tennessee, and two Ohio sheriff's offices.
In an opinion authored by Judge Larsen and joined by Judges Siler and McKeague, the Sixth Circuit rejected the government's arguments that the Procurement Act authorized the president to take actions that made performance of a federal contract more efficient. Relying on the history and construction of the Procurement Act, the Court concluded that the logic of the D.C. Circuit's frequently cited and long-standing decision in AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) (en banc), was "mistaken." Instead, the Court determined that statutory language referring to "an economical and efficient system" of federal contracting was focused on the government itself and did not authorize actions that make contractors more efficient. "The Property Act does not authorize the President to issue directives that simply 'improve the efficiency of contractors and subcontractors,'" the Court said.
The Sixth Circuit found other equitable factors supported injunctive relief as well. "[T]he loss of new or renewed contracts due to the imposition of the contractor mandate" was irreparable, as were "unrecoverable compliance costs in the absence of a preliminary injunction." Public interest and the balance of harms favored the plaintiffs in part because "the federal government's current claims of urgency are difficult to swallow in the face of their dilatory response to the availability of vaccines."
While it affirmed the basis for the preliminary injunction, the Sixth Circuit also modified its scope, tailoring the injunction to apply only to the parties to the litigation, and not to all federal contractors in the plaintiff states, as the district court had originally ordered. "Although a geographically limited injunction like the one issued here does not create all of the practical problems associated with 'nationwide' or 'universal' injunctions, . . . affording relief beyond the parties nonetheless raises substantial questions about federal courts' constitutional and equitable powers," the Court said. Plaintiffs had not offered evidence that the government would "simply choose to do business with those against whom it could enforce the mandate," nor was a geographical injunction necessary to protect plaintiff states' sovereign interest in enforcing their own laws.
The Sixth Circuit's decision comes on the heels of a pair of similar rulings by the Eleventh Circuit in August and the Fifth Circuit in December in which those courts affirmed other preliminary injunctions of the vaccine mandate. At least one additional court of appeals decision from the Eighth Circuit is expected to address Executive Order 14042 in the coming months, and the cases may ultimately tee up Supreme Court review. A number of challenges to Executive Order 14042 are also proceeding in federal district courts. We will continue to monitor these cases and provide updates as they develop.
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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