Celebrating 75 Years of Serving Nevada’s Legal, Business, Government, and Civic Communities

Status of Biden Administration’s
Vaccination Mandate
for Federal Contractors

A Georgia federal judge on June 1 tossed Republican-controlled states’ challenge to the Biden administration’s COVID-19 vaccine mandate for federal contractors, after the White House eliminated the requirement. In its release, the White House said the mandate for federal employees and contractors would be dropped May 11. U.S. District Judge R. Stan Baker approved a joint stipulation of dismissal filed by Georgia and six other states, the Associated Builders and Contractors Inc. trade group and the U.S. government. The parties agreed to dismiss the case with prejudice and would bear their own fees and costs.

Georgia, along with Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia sued the Biden administration two years ago, asking the federal court to stop the president’s Executive Order 14042, which required employees in certain federal contracts to be fully vaccinated against COVID-19. Judge Baker in late 2021 issued the nationwide injunction to the contractor vaccine mandate that states demanded, but paused the case while the U.S. government fought the block in the Eleventh Circuit. A split appellate court panel last August ruled the mandates most likely exceeded the government’s authority under the Federal Property and Administrative Services Act, also called the Procurement Act. However, the court shrank the injunction, ruling it should only apply to the states and entities suing the government. The last action before the parties requested dismissal was a status conference on May 2, a day after the Biden administration said it was dropping the vaccine requirement.

Georgia’s challenge to contractor vaccine mandates was among several challenges that wound through the court system starting in 2021. A Sixth Circuit panel at the beginning of 2023 affirmed an injunction blocking the requirement in Kentucky, Ohio and Tennessee, and a couple of months later, the Fifth Circuit upheld a trial court’s block of a mandate for federal workers. More recently, the Ninth Circuit repealed a block of the contractor mandate in Arizona, ruling the rule did not exceed the president’s authority, in a departure from other federal appeals courts.

On April 19, 2023, the Ninth Circuit overturned a bar on the Biden administration imposing its COVID-19 vaccine mandate on federal contractors in Arizona, breaking with three other circuit courts by finding the mandate did not exceed the president’s statutory authority. The president’s actions are not covered by the so-called major questions doctrine, and the mandate otherwise fits within the president’s authority under the Federal Property and Administrative Services Act, or Procurement Act, a three-judge panel ruled in a published decision. The Ninth Circuit’s backing of the Biden administration’s COVID-19 vaccine mandate for federal contractors lends support to the long-held status quo granting the president broad procurement authority but adds to the uncertainty created for businesses by three prior conflicting circuit court decisions. While the Fifth, Sixth and Eleventh circuits ruled that the September 2021 mandate was an overreach under the Federal Property and Administrative Services Act, or Procurement Act, the Ninth Circuit was more in line with a standard the D.C. Circuit established in 1979.

On January 12, 2023, a Sixth Circuit panel upheld but narrowed a court’s block on the Biden administration’s COVID-19 vaccine mandate for federal contractors, agreeing to stop the policy from being enforced against Kentucky, Ohio, and Tennessee but not all contractors within their borders. The appeals court barred the Biden administration from enforcing the policy against Kentucky, Ohio, and Tennessee in their capacity as federal contractors, finding that “the plaintiffs are likely to lose valuable government contracts and incur unrecoverable compliance costs if the mandate is not preliminarily enjoined” for at least the duration of the states’ ongoing legal challenge. However, the federal government convinced the panel to pare down the original injunction. While a trial court originally enjoined the policy from being enforced against any contractors within those three states’ borders in a late 2021 decision, the Sixth Circuit concluded that a narrower bar applying to just the parties in the litigation is enough to “adequately protect the plaintiffs’ interests.”

On December 19, 2022, a U.S. appeals court said the White House could not require federal contractors to ensure that their workers are vaccinated against COVID-19 as a condition of government contracts. A panel of the 5th Circuit Court of Appeals voted 2-1 to uphold a lower court decision that blocked President Joe Biden’s September 2021 contractor vaccine executive order after Louisiana, Indiana, and Mississippi brought suit to seek invalidation of the mandate. The court said Biden wanted it “to ratify an exercise of proprietary authority that would permit him to unilaterally impose a healthcare decision on one-fifth of all employees in the United States. We decline to do so.”

The Biden Administration issued a COVID-19 vaccine mandate for employees of federal contractors and subcontractors. Executive Order 14042, executed on September 9, and subsequent implementing guidance, required employees of federal contractors and subcontractors to be fully vaccinated by January 18, 2022, absent the existence of a legal accommodation. The Executive Order relied on the Federal Property and Administrative Services Act (FPASA), a federal regulatory system governing procurement, to authorize its mandate. Implementation of the Order is being challenged in the two cases described below.

McDonald Carano attorneys Kristen Gallagher and Philip Mannelly provide the following update on the implementation of the Executive Order which is being challenged in the two cases described below, which are before the Sixth and Eleventh Circuits. Briefing in the Sixth Circuit is expected to finish in early March and oral argument is scheduled for April 4 in the Eleventh Circuit. The U.S. Supreme Court’s January 13, 2022, decisions on the OSHA mandate for large employers and the CMS mandate for healthcare works (click here for information about those two decisions) will impact the upcoming decisions by the Sixth and Eleventh Circuits. Please contact Kristen and Phil with questions about these pivotal cases as well as for assistance navigating any employment and labor law issues relating to COVID-19. (Please click here for information about the status of the Biden Administration’s vaccine mandates for large employers and healthcare workers.)

Status of Nationwide Injunction: On December 7, 2021, U.S. District Judge R. Stan Baker in Georgia issued a nationwide preliminary injunction against the mandate after concluding that “plaintiffs will likely succeed in their claim that the president exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042.” The plaintiffs are a group of states and their public officials, as well as the Georgia chapter of the Associated Building Contractors (ABC) and its national chapter. Judge Baker ruled that the mandate “goes far beyond addressing administrative and management issues [related to contracts],” “works as a regulation of public health, which is not clearly authorized under the Procurement Act,” and lacks a sufficient nexus between the purpose of FPASA and the mandate to justify the mandate.

On December 17, the Eleventh Circuit refused to stay the nationwide injunction blocking the mandate from going into effect while the appeal process moves forward. “Without a showing by the government of an irreparable injury absent a stay, we cannot stay the preliminary injunction,” the three-judge panel said. The Court did not address the government’s likelihood of success on the merits. The Court granted expedited consideration of the government’s appeal, requiring the government to file its initial brief by January 3, 2022 and challengers to the mandate were required to respond by January 24, 2022. The Eleventh Circuit has scheduled oral argument for April 4.

On December 21, U.S. District Judge R. Stan Baker paused all deadlines in the case but set a January 7 deadline for plaintiffs to respond to the Biden Administration’s request for clarifications on the scope of the preliminary injunction Judge Baker issued on December 7. The federal government made its request after the Eleventh Circuit refused to stop the nationwide injunction from going into effect, pending appeal. During the December 21 hearing, Judge Baker asked if the federal government was completely withdrawing a previous motion for a stay filed on December 9 and the government replied that it still wanted a ruling on its request for clarification of two aspects of Judge Baker’s preliminary injunction order that it had raised in the motion: (1) Does the preliminary injunction bar it from unilaterally enforcing Executive Order 14042 or does it leave open the option for the government and private contractors to enter into mutual agreements to include COVID-19 safety clauses in their government contracts. (2) Does the injunction also prevent federal agencies from enforcing masking and physical distancing requirements and requiring the designation of individuals to coordinate COVID-19 safety efforts for contractor workplaces. The state parties and ABC did not object to the stay in the lower court proceedings.

Status of Injunction for Kentucky, Ohio and Tennessee: On November 30, U.S. District Judge Gregory Van Tatenhove issued a ruling that blocked the vaccine mandate for contractors in Kentucky, Ohio, and Tennessee. The court’s injunction reasoned that the health objectives of the Executive Order were too unrelated to the purpose of FPASA, stating that “If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency.” The government appealed that ruling to the Sixth Circuit. On January 5, in a published decision that includes a partial dissent, a Sixth Circuit majority declined to stay the injunction, pending appeal, which blocks the mandate from going into effect in Kentucky, Ohio and Tennessee.

The Court noted that the federal government’s main arguments are unlikely to prevail. “But the government’s argument [that two statutory provisions in the Federal Property and Administrative Services Act authorize the president to order the mandate] is unlikely to succeed for two central reasons: the relevant text, in fact, unambiguously precludes the government’s theory, and, even if there were some ambiguity, the relevant canons of interpretation would foreclose construing the ambiguity in the government’s favor.”

The majority also noted several reasons why the federal government had not shown it will face irreparable injury without a stay to the injunction, including (1) “COVID-19 vaccines have been generally available in the United States — and the present administration has been in office — for nearly a year. Yet the contractor mandate did not emerge until September 2021. The government then delayed the compliance deadline from December 8, 2021, to January 18, 2022. The government’s actions undercut its representations of great urgency in implementation of the contractor mandate.” and (2) In December, the Eleventh Circuit ruled not to stay a nationwide injunction of the same law, so the Sixth Circuit cannot prevent the alleged irreparable harm the federal government claims it will face. Briefing in the Sixth Circuit is expected to finish in early March.

About McDonald Carano

In 2024, McDonald Carano celebrates 75 years of serving Nevada’s legal, business, government, and civic communities. More than 60 lawyers and government relations professionals serve state, national, and international clients from our offices in Reno, Las Vegas, and Carson City. McDonald Carano provides legal services and government affairs and advocacy counsel to startups, corporations, trade associations, nonprofits, public entities, high-net-worth individuals, investors, and public-private partnerships throughout Nevada. We are proud to be your Nevada law firm since 1949.

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