DOJ’s Bad Luck Continues – Seventh District Court Orders Federal Vaccine Contractor’s Warrant | Bass, Berry & Sims APIs


After publishing our article last week on the status of the four federal vaccine mandates, we learned that a seventh The district court had ordered the federal contractor on the COVID-19 vaccine warrant, continuing a series of notable losses for the Department of Justice (DOJ) in its attempts to defend President Biden’s Executive Order (EO) 14042. While the District Court for the District of Arizona has not yet finalized all the details of its injunction which only applies in Arizona (the parties will advise on this matter during the next week), it is yet another indication that the contractor mandate will likely never be fully implemented in its current form.

On September 14, the State of Arizona, along with several other entities and individuals, filed a lawsuit challenging both the contractor’s vaccination warrant and the federal employee’s vaccination mandate ordered in the ‘EO 14043. The order issued on January 27 upheld the federal employee’s warrant challenge. was not yet ripe, but it enjoined the mandate of the entrepreneur.

First, the court agreed with the DOJ that the plaintiff challenging the employee’s retainer lacked standing because he had a pending medical exemption claim and therefore was not not required to be vaccinated or subject to disciplinary action at that time and may never be if the request is granted. Since his alleged injury – receiving the vaccine or being fired – may never occur, any opinion issued in response to his claim would be “merely advisory”, and therefore his claim was not mature. The court also ruled that Arizona lacked standing to challenge the employees’ warrant because its employees were not subject to it and the warrant did not infringe on Arizona’s sovereignty.

But the court held that it had jurisdiction to hear the challenge to the contractor’s retainer because Arizona had demonstrated that it was “likely to suffer direct harm by reason of the contractor’s retainer” because it would be forced to choose between “losing numerous and important federal contracts” and ordering its employees to be vaccinated. The court was also unconvinced by the DOJ’s argument that the contractor’s mandate was merely a contractual requirement and therefore did not encroach upon state sovereignty. On the contrary, the contractor mandate, which affected one-fifth of the workforce in the United States, was an exercise in regulatory authority.

The Arizona District Court rejected the DOJ’s argument that the District Court was not the proper forum because the contractor’s retainer fell within the exclusive jurisdiction of the Federal Claims Court (COFC) under the law of contract disputes and the Tucker law. The court held that because the claim was not based on an express or implied contract with the United States, but rather on the Constitution and laws of the United States, it did not fall within the exclusive jurisdiction of the COFC.

As to the issue of the plaintiffs’ right to a preliminary injunction, the court, like five of the six other district courts that have considered the issue, held that the plaintiffs were likely to succeed in their argument. that the Federal Property and Administrative Services Act, 40 U.S.C. § 101, and following. (FPASA), did not authorize the president to issue a broad public health mandate. Instead, the court held that the FPASA gave the president the power to “provide the federal government with an economical and efficient system” for procurement.

Ultimately, the court held that the contractor’s mandate exceeded the president’s authority for three reasons:

  1. FPASA plain language does not authorize the President to issue vaccination warrants.
    1. The DOJ’s interpretation of the FPASA lacked a limiting principle and would grant the president “awe-inspiring authority” that would include, for example, the power to “issue an executive order requiring all employees of federal contractors to refrain from consuming sodas.” or eating fast food” using the argument that “obesity, diabetes, and other health problems linked to the consumption of sugary drinks and fast food…have led to absenteeism and a lack of productivity in the workplace”. Instead, the court ruled that policies issued under the FPASA must relate “more than incidentally – to” (emphasis in original).
    2. Congress had not clearly authorized the president to order that one-fifth of the country’s workforce be vaccinated, a matter “of great economic and political importance”, therefore the court found that the President had no authority to issue the warrant.
    3. The FPASA authorizes the president to issue procurement policies, not directives related to public health. And in the 70 years since the FPASA was passed, the authority has never been used “to implement sweeping public health policy.”
  1. The DOJ’s expansive interpretation of the FPASA “raises serious constitutional questions.” Specifically, if the FPASA were broad enough to allow the President to issue a public health measure applicable to 80 million people, it would potentially violate the rarely mentioned non-delegation doctrine.
  2. Whether individuals should be vaccinated — an exercise of “police power” — is a matter left to states under the Tenth Amendment. And while federal law can override state law, if it intrudes into an area like public health that “states have traditionally occupied,” it can only do so “if it [is] the clear and manifest purpose of the Congress.

The court also ruled that neither the publication of the Office of Management and Budget decision in support of the Federal Workforce Security Task Force guidelines, the September 30 memorandum of the Federal Acquisition Regulatory Council’s proposed contractual provision, FAR 52.223-99, nor the Task Force FAQ violated the procedural requirements of the Procurement Policy Act at 41 USC § 1707. The court was also not persuaded by the arguments of the plaintiffs that because the vaccines were only approved under emergency use authorization, which no longer appears to be the case for the Vaccine employees, contractors and subcontractors of Pfizer had “the right to accept or refuse the administration of vaccines”, and therefore the contractor’s mandate was inappropriate. Or by the argument that the contractor’s mandate violated the plaintiffs’ due process rights to bodily integrity and to refuse medical treatment.

After concluding that the plaintiffs would likely suffer irreparable harm and that the balance of actions and the public interest weighed in favor of issuing an injunction, the court determined that “[e]acceptable remedies [such as injunctions] should only repair injuries sustained by a particular plaintiff in a particular case,” the court barred federal defendants from enforcing the contractor’s warrant “limited to the geographic limits of the State of Arizona.” The court asked the parties to submit the form of the injunction over the next week and said that “[t]here, there is no reason for delay… the Court will give judgment on the vaccine counts when entering a permanent injunction, in a later order.

As we’ve said in previous articles, because it’s impossible to predict the outcome of litigation, contractors must stand by if a circuit court or the Supreme Court reinstates the contractor’s warrant. But as the government’s losses mount, that’s becoming less likely by the day. The government’s record for defending preliminary injunction motions is now 0-7 at the district court level, and it’s 0-2 in circuit courts for motions to stay pending injunctions. call. At this point, it seems doubtful that the record will improve.


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