February 4, 2022 - Coronavirus

Another Ticking Clock: Additional District Court Preliminarily Enjoins EO 14042 | Increasing Need for OMB Update on GA Court Clarification Order

On January 27, 2022, the U.S. District Court for the District of Arizona joined the growing list of courts that have preliminarily enjoined Executive Order 14042 (which imposes COVID safety protocols on government contractors, including a vaccine mandate) based on an initial determination that the President exceeded his authority under the Federal Property and Administrative Services Act (FPASA), among other reasons. The court is expected to issue an order confirming the scope and applicability of the preliminary injunction soon, as the government has until Monday, February 7, 2022, to submit objections to the plaintiffs’ proposed form of injunction. The government is expected to appeal the decision at the U.S. Court of Appeals for the Ninth Circuit.

In finding that the President likely exceeded his authority under FPASA, the district court followed an analytical path laid out by the Supreme Court in its recent decision reinstating the stay of the Occupational Safety and Health Administration’s emergency temporary standards. Based on a lack of historical precedent of past Presidents using FPASA to effectuate a “sweeping public health policy,” and the absence of a clear delegation by Congress to issue such a policy, the district court determined that the plaintiffs were likely to succeed on this ground. To reinforce that conclusion, the court distinguished its findings from those made by the Supreme Court in its decision lifting the preliminary injunction of the vaccine mandate issued by the Centers for Medicare & Medicaid Services.

Like several of its peers, the district court also found that the “Contractor Mandate intrudes into an area traditionally and principally reserved to the states,” the “traditional ‘police power,’” and therefore likely violated the 10th Amendment. On the balance of the merits issues, the court preliminarily rejected the plaintiffs’ due process arguments and their arguments under the Procurement Policy Act and the Emergency Use Authorization Statute.

In a separate (but related) development, the U.S. Court of Appeals for the Eleventh Circuit scheduled oral argument for April 8, 2022, on the Georgia court’s nationwide preliminary injunction of the vaccine mandate for government contractors. Additionally, the government filed an unopposed motion to hold the appeal of the Florida district court’s preliminary injunction in abeyance, as the “case presents substantially the same question of law awaiting resolution by” the Eleventh Circuit in the Georgia case, which the appellate court has already scheduled on an expedited basis. (We previously reported on these cases in our client alert and blog post).

While litigation continues, the U.S. Office of Management and Budget (OMB) has still not updated the list of “Currently Excluded States and Outlying Areas,” and the Safer Federal Workforce Task Force has been silent in response to the Georgia district court’s clarification order. (We previously reported on that order in our client alert). The lack of up-to-date and clear guidance makes it all the more important for contractors to consider seeking written clarification from their contracting officers on what—if any—compliance obligations they might have.  We will continue to monitor and provide updates on these developments.