A Second Look: The parties are arguing over the vaccination mandate in the Eleventh Circuit’s appeal against injunction EO 14042 | Morrison & Foerster LLP – Insights into government contracts


It has been more than two months since the U.S. District Court for the Southern District of Georgia issued a statewide injunction of Executive Order 14042, the Biden administration’s attempt to make vaccination mandatory for federal contractors. Since then, the district court has clarified the scope of his injunction, and a number of other court cases have ruled on it. But the fate of EO 14042 is far from decided. The next big test will come before the US Court of Appeals for the Eleventh Circuit, where the government has appealed the Georgia Trial Court’s order granting the injunction. The hearing is not scheduled to take place until April, but now that the parties (and some amici curiae) have had a chance to file their appeal briefs, it’s worth taking a moment to examine the legal issues at play . The following is a brief summary of each party’s arguments in the appeal process:

the federal government identifies the following three items for Eleventh Circuit review: (1) whether EO 14042 is a lawful exercise of Presidential powers under the Federal Property and Administrative Services Act or the Procurement Act; (2) whether the plaintiffs failed to establish the equitable conditions for an injunction; and (3) whether the scope of the injunction is too broad.

  • On the first question, the government argues that because the Procurement Act empowers the President to “prescribe policies and guidelines” that he believes are “necessary” to ensure “an economical and efficient system” for procurement, and COVID disrupts work by absenteeism or The vaccination mandate of EO 14042 serves the objectives of the statute if the disease interrupts the spread. The “major questions” doctrine — under which the court assumed that Congress would have expressly authorized a vaccine mandate had it intended to grant such authority through the Procurement Act — applies only if, unlike here, the executive branch of the Exercising regulatory powers and when It is unclear whether the law delegates powers to the executive branch. Likewise, the economy and efficiency standard of the Procurement Act does not create problems of non-delegation, since this standard provides an understandable principle that guides the President’s actions. And federal procurement does not imply any federalist concerns at all.
  • Regarding the stocks underlying the injunctive relief claims, the government argues that the plaintiffs have never found irreparable harm because the cost of compliance is insufficient to constitute irreparable harm, while the mandate’s injunction has reduced productivity in important treaties such as those related to national security and public health.
  • Finally, the government argues that the statewide injunction is too broad and should have been limited to the parties to this lawsuit under basic constitutional and remedial principles.

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

  • State plaintiffs argue that EO 14042 exceeded the powers of the President, as the Procurement Act authorizes only modest control over the internal workings of the government, but not broad power to set health and safety policies in private companies. The government failed to adequately explain its rationale for efficiency, states argue, and in any event, the guidance and FAR variance clause implementing the vaccination mandate violated procedural requirements by never going through notification and comment.
  • Stocks also preferred an injunction, states say, because the EO forces them to choose between losing hundreds of millions of dollars in federal contracts or laying off employees who can’t be replaced.
  • The injunction has reasonable scope, states argue, because only one plaintiff in a class needs to establish standing to seek relief, and all states enter into treaties with the federal government.
  • Associated, meanwhile, relies heavily on the S. Supreme Court’s decision to halt the Occupational Safety and Health Administration‘s vaccination or testing mandate when it argues that EO 14042 exceeded the President’s authority. Both cases imply constitutional limitations on executive power and the lack of a clear mandate from Congress. Since the Supreme Court has already concluded that COVID is a universal problem and not a specific workplace hazard, Associated argues that the same considerations make the government unlikely to prevail on this issue.
  • Equitable considerations also favor plaintiffs, Associated said, because of the potential for waivers from bidding and incurring significant administrative costs needed to comply with regulations while COVID infections with Omicron variants are declining.
  • Like the states, Associated argues that the universal scope of the injunction is appropriate because federal award is statewide.

In addition to the explanations of the parties, two amici curiae have also filed briefs, both in support of the appellants.

  • the Chamber of Commerce Written submission focuses on statutory powers and argues that the Procurement Act does not support the exercise of powers in EO 14042 for the same reasons discussed in the complainant’s written submissions. And like Associated, the Chamber draws a direct parallel to the Supreme Court’s handling of OSHA’s mandate.
  • In their brief description state amici (Florida, Alaska, Arkansas, Arizona, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Dakota, Tennessee, and Texas) expand the arguments that the government made procedural errors of the implementation of EO 14042. In addition to the notice and comment point, state amici also allege that the government unlawfully allowed the Safer Federal Workforce Task Force to set the terms of the mandate and that the resulting policy was arbitrary, capricious and contrary to administrative law violated procedural law for not recognizing counter-arguments.

the federal government addressed most of these various arguments in his reply letter.

  • With regard to statutory authority, the Government counters that nothing in the text or jurisprudence of the Procurement Act supports the plaintiffs’ restrictive interpretation and that there is no real difference between contract requirements that directly increase economy and efficiency and those that do so indirectly do about health measures.
  • The Government’s response also addresses, for the first time on appeal, the arguments of the plaintiff and Amici States that EO 14042 suffers from procedural violations. The district court has never dealt with these issues, the government notes. But in any event, neither the Task Force Guidance nor the FAR Council memo are definitive actions by the agency, as they have no immediate legal force without further action. Furthermore, the separate appointment of the acting director of the OMB was not subject to the notice and comment requirements as she exercised delegated powers directly from the President. And it has complied with this legal framework anyway by expressly waiving the obligation to report and comment in view of the compelling circumstances.

The Eleventh Circuit will hold a hearing on April 8 and could make a decision at any time after that. While this case is the first to be heard comprehensively in a court of appeals, other federal appeals courts — including the Fifth, Sixth and Eighth Circuits — will soon be dealing with these issues as well. Of course, if the OSHA vaccination or testing mandate is any indication, the Supreme Court may ultimately have the final say. As always, we will continue to monitor these developments and provide updates.

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