On April 19, 2023, the Ninth Circuit reversed a permanent injunction against the President’s Vaccine Mandate, creating a circuit split with potentially broader implications on the interpretation of a President’s authority under the Procurement Act.1 Previous circuits upheld injunctions against the Vaccine Mandate in part because the courts found it was an abuse of the President’s authority under the Federal Property and Administrative Services Act of 1949 (“Procurement Act”), 40 U.S.C. § 101 et seq.2
The Vaccine Mandate came from Executive Order 14042 (the “EO”), issued on September 14, 2021, which directed executive agencies to include a clause in qualifying federal contracts requiring contractors (and subcontractors) to comply with guidance that would subsequently be issued by the Task Force.3 The Task Force charged with providing guidance under the EO issued on November 10, 2021, a requirement that covered contractors “ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation,” no later than January 18, 2022.4 However, since the Task Force guidance’s issuance, the Vaccine Mandate has yet to be enforced due to injunctions and the government’s assurances that it will not enforce this requirement. Despite the Ninth Circuit’s reversal of the permanent injunction in Arizona, there have been no signs that the government will enforce the Vaccine Mandate. In fact, the government has taken action to pause or remove vaccine mandates, including OMB and the Task Force’s guidance to agencies to not enforce contract clauses under the EO and DoD’s decision to not enforce a vaccine mandate for Armed Forces members as of March 17, 2023.5 However, the Ninth Circuit’s holding may have broader implications.
In reversing the injunction, the Ninth Circuit interpreted the Procurement Act broadly to grant the President “the necessary flexibility and broad-ranging authority to ensure economy and efficiency in federal procurement and contracting.”6 Other circuits appear concerned that this interpretation could “mean there is no limiting principle to the President’s authority under the Procurement Act.”7 Specifically, the Fifth Circuit is concerned that upholding the Vaccine Mandate will enable the Executive Branch to require that “all federal contractors certify that their employees take daily vitamins, live in smoke-free homes, exercise three times a week, or even, at the extremity, take birth control in order to reduce absenteeism relating to childbirth and care.”8 This circuit split on how broadly to interpret the President’s authority under the Procurement Act may lead to questioning future executive action whether it be in vaccine mandates, labor law violation reports, diversity, equity and inclusion requirements, or something else unprecedented.
For now, the Ninth Circuit’s ruling holds that contractors in Arizona are no longer protected from the Vaccine Mandate, despite the fact that the government has not yet taken, and appears unlikely to take, any steps to enforce the Vaccine Mandate or enforce contract clauses implementing it now that the government ended the COVID-19 national emergency.9
We will continue to watch and advise clients on if and how the circuit split’s interpretation of the Procurement Act may affect future Executive Orders.
1 Mayes v. Biden, 2023 WL 2997037 (9th Cir. Apr. 19, 2023).
2 See Louisiana v. Biden, 55 F.4th 1017 (5th Cir. 2022) (preliminary injunction covering Indiana, Louisiana, and Mississippi); Commonwealth v. Biden, 57 F.4th 545 (6th Cir. 2023) (limiting the already-granted preliminary injunction to named parties) modifying Kentucky v. Biden, 23 F.4th 585 (6th Cir. 2022); Georgia v. President of the United States, 46 F.4th 1283 (11th Cir. 2022) (preliminary injunction covering Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia).
3 Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg. 50,985, § 2(a) (Sept. 14, 2021).
4 Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, 5 (updated Nov. 10, 2021) (“Task Force Guidance”).
5 Update Regarding Executive Order 14042 (October 19, 2022), available at https://www.saferfederalworkforce.gov/downloads/OMB%20Guidance%20for%20Agencies_EO%2014042_20221019.pdf); Guidance for Implementing Rescission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces, DoD (Feb. 24, 2023), available at https://media.defense.gov/2023/Feb/24/2003167584/-1/-1/1/GUIDANCE-FOR-IMPLEMENTING-RESCISSION-OF-082421-AND-113021-COVID-19-VACCINATION-REQUIREMENTS-FOR-MEMBERS-OF-THE-ARMED-FORCES-OSD001649-23-RES-FINAL.PDF
6 Mayes, 2023 WL 2997037, at *19.
7 Id. *17.
8 Louisiana, 55 F.4th at 1031–32; accord Georgia, 46 F.4th at 1296 (warning that the Procurement Act “is not an open book to which contracting agencies may add pages and change the plot line” (internal quotations omitted)).
9 H.J. Res. 7, 118th Cong. (2023) (enacted).