In the aftermath of Executive Order (E.O.) 14042, federal courts across the United States are confronting challenges to the legality of the executive vaccine mandate on federal contractors. Most recently, Judge Gregory F. Van Tatenhove of the US District Court for the Eastern District of Kentucky evaluated a challenge made by plaintiff contractors and subcontractors in Kentucky (KY), Ohio (OH) and Tennessee (TN) and issued a preliminary injunction. In its November 30, 2021, opinion, the court questioned whether the president can use his “congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors” and ultimately answered, “no.” (Frankfort Ky. v. Joseph R. Biden, Civil No. 3:21-cv-00055-GFVT, 2021 U.S. Dist. LEXIS 228316, at *1.) The opinion addressed the vaccine mandate for contractors broadly, but limited the impact of the preliminary injunction to covered contractors in KY, OH and TN.
Judge Van Tatenhove’s opinion highlighted major events and developments that led to the vaccine mandate, including the following:
- January 20, 2021 – E.O. 139991 – Established the Safer Federal Workforce Task Force. Id.
- September 9, 2021 – E.O. 14042 – Required federal contractors to comply with COVID-19 workplace safety protocols set by the Safer Federal Workforce Task Force. Id. at *1-2.
- September 24, 2021 – Pursuant to E.O. 14042, the Safer Federal Workforce Task Force required all federal contractor and subcontractor employees to be fully vaccinated. Id. at *3-5.
As a threshold issue, the court evaluated standing. It looked at whether the plaintiffs provided proof that the government’s actions constituted a cognizable harm to future contracting opportunities that could be redressed and found standing satisfied. (Id. at *9-14.) Relying primarily on the fact that federal contracts accounted for billions of dollars in each of KY, OH and TN—in combination with the totality of the Biden administration’s stance on its
COVID-19 guidance1—the court reasoned that “contractors who do not comply will likely be blacklisted from future contracting opportunities if they refuse to comply.” (Id. at *9-12.) Furthermore, the court determined that “[e]njoining the vaccine mandate . . . would redress this injury.” (Id. at *14.)
Ultimately, the court held that the president exceeded his constitutional and statutory authority in mandating federal contractor vaccinations under E.O. 14042 (Id. at *16-21 (citing 3 U.S.C § 301; Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq.)): “While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination.” (Id. at *19.) The court went on to discuss “several concerning statutory and constitutional implications from President Biden exceeding his authority under the FPASA,” finding in favor of the plaintiff, ruling that the vaccine mandate most likely violates:
- The Competition in Contracting Act, which requires federal agencies to “provide ‘full and open competition through the use of competitive procedures’ in procurement.” (Id. at *21-22 (quoting 41 U.S.C. § 3301(a)(1)).) Analogizing a similar case from the Federal Circuit, the court found a probable violation in that “[c]ontractors who ‘represent the best value to the government’ but choose not to follow the vaccine mandate would be precluded from effectively competing for government contracts.” (Id. at *23 (second alteration in original) (quoting Nat'l Gov't Servs, Inc. v. United States, 923 F.3d 977, 990 (Fed. Cir. 2019)).)
- The non-delegation doctrine, which prohibits Congress from delegating unfettered legislative authority to the president. (Id. at *24.) The court held that “the FPASA was enacted to promote an economical and efficient procurement system, and the [d]efendants cannot point to a single instance when the statute has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors.” (Id. at *28.)
- State policing authority provided by the Tenth Amendment. (Id. *29-31.) The court reasoned that because “‘[t]he regulation of health and safety matters is primarily and historically, a matter of local concern.’ . . . Defendants have stepped into an area traditionally reserved to the States, . . . th[u]s provid[ing] an additional reason to temporarily enjoin the vaccine mandate.” (Id. (quoting Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 719 (1985)).
Despite finding that the executive agencies followed proper administrative procedures when issuing the COVID-19 protocols, the court granted the preliminary injunction and prevented enforcement of the vaccine mandate against federal contractors and subcontractors in KY, OH and TN. (Id. at *40-41, 44.) This is not the court’s final ruling — there will be further proceedings to determine if a permanent injunction will be issued.
1 On September 7, 2021, President Biden remarked that “[i]f you want to work with the federal government, vaccinate your workforce.” Id. at *12 (quoting Remarks of President Joseph Biden, Remarks at the White House (Sept. 9, 2021), available at https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/).