Sixth Circuit Follows Suit In Affirming Preliminary Injunction Of Contractor Vaccine Mandate

• Jurisdiction: United States,Federal
• Law Firm: Morrison & Foerster LLP
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Author: Mr Joseph Palmore, J. Alex Ward, Krista A. Nunez, Roke Iko and Adam L. Sorensen
• Published date: 23 January 2023

On January 12, 2023, the U.S. Court of Appeals for the Sixth Circuit joined the Fifth and Eleventh Circuits in upholding a preliminary injunction against the enforcement of the Biden Administration's effort to impose on federal contractors a variety of COVID-19 safety-related protocols, including a vaccine mandate. Describing the scope of the executive mandate as "stunning," the Sixth Circuit concluded that the Federal Property and Administrative Services Act (commonly known as the Procurement Act or Property Act) "does not confer the authority to promulgate a rule, including the contractor mandate, that simply makes contractors more efficient," and that "the President exceeded his authority in issuing" Executive Order 14042. The district court nonetheless abused its discretion in enjoining the requirement for all federal contractors in the plaintiff states, the Court of Appeals held, and limited the preliminary injunction to the parties to this case only: Ohio, Kentucky, Tennessee, and two Ohio sheriff's offices.

In an opinion authored by Judge Larsen and joined by Judges Siler and McKeague, the Sixth Circuit rejected the government's arguments that the Procurement Act authorized the president to take actions that made performance of a federal contract more efficient. Relying on the history and construction of the Procurement Act, the Court concluded that the logic of the D.C. Circuit's frequently cited and long-standing decision in AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) (en banc), was "mistaken." Instead, the Court determined that statutory language referring to "an economical and efficient system" of federal contracting was focused on the government itself and did not authorize actions that make contractors more efficient. "The Property Act does not authorize the President to issue directives that simply 'improve the efficiency of contractors and subcontractors,'" the Court said.

The Sixth Circuit found other equitable factors supported injunctive relief as well. "[T]he loss of new or renewed contracts due to the imposition of the contractor mandate" was irreparable, as were "unrecoverable compliance costs in the absence of a preliminary injunction." Public interest and the balance of harms favored the plaintiffs in part because "the federal...