On January 5, 2022, the Sixth Circuit Court of Appeals joined the growing list of US courts that have considered the federal government’s authority to mandate COVID-19 vaccinations for its government contractors pursuant to Executive Order (E.O.) 14042. This is the second federal appellate court to enter the fray, as the Eleventh Circuit previously rejected the stay of a preliminary injunction blocking the federal government’s vaccine mandate on a national level. Here, the Sixth Circuit weighed the merits of a similar stay request, as the government sought to halt the Eastern District of Kentucky’s decision to enjoin enforcement of the federal contractor vaccine mandate in Kentucky, Ohio and Tennessee. (Kentucky v. Biden, No. 21-6147, 2022 WL 43178, at *1 (6th Cir. Jan. 5, 2022).) Judge John K. Bush authored the majority opinion, denying the federal government’s request. (Id.)
The opinion largely centered on evaluations of standing and governmental authority provided under the Federal Property and Administrative Services Act (“Property Act”). The appellate court concluded that plaintiffs had standing based on their sovereign, quasi-sovereign and proprietary contractual interests.1 (Id. at *5-10.) It found redressable the prospective injuries caused by the federal mandate, given that (1) “resistance could lead to the loss of federal contracts or difficulty performing such contracts, . . . harm[ing] the states’ economies” and (2) the federal mandate ran contrary to each state’s own vaccination policy, thereby implicating and intruding on public health regulation traditionally left to states. (Id. at *9-10.) In finding the vaccine mandate beyond allocated presidential powers, the court held it proper for plaintiffs to “validly complain when the federal government seeks to usurp [state] roles by doing something that it has no traditional prerogative to do—deploy the Property Act to mandate an irreversible medical procedure.” (Id. at *16.) After depicting a slippery slope if the federal government were allowed to mandate contractor vaccinations,2 the court interpreted what it deemed the government’s overarching intention: ”What the contractor mandate seeks to do, in effect, is to transfer this traditional prerogative from the states to the federal government under the guise of a measure to make federal contracting more ‘economical and efficient.’” (Id. at *15-16.) Ultimately, the court’s finding of a low probability of success supported the denial of the government’s stay request. (Id. at *16.)
The majority opinion went on to weigh several other factors before concluding that the stay was unwarranted. Notably, it found the delays in time between the availability of COVID-19 vaccines, the proposed vaccination mandate and compliance deadlines as factors that countered the government’s claims of irreparable harm. (Id. at *17.) The court further evaluated the impact of the Southern District of Georgia’s nationwide injunction and the Eleventh Circuit’s decline of a stay therein. (Id.) The Sixth Circuit found that an opinion contrary would be merely “academic, . . . [f]or even if we thought the district court’s injunction an abuse of discretion, our dissolution of it could not revive the contractor mandate and prevent the government’s allegedly irreparable injuries.” (Id.)
Judge R. Guy Cole, Jr., authored a dissenting opinion, disagreeing with the majority’s conclusions regarding standing, the government’s likelihood of prevailing on the merits and the presidential authority to mandate vaccinations pursuant to the Property Act. (Id. at *18.) He emphasized the plaintiffs’ contractual autonomy3 and their exaggerated claims of injury4 before concluding that the plaintiffs lacked standing. (Id. at *18-19.) The dissent also pushed against the majority’s alleged contention that the government mandate “is merely pretext to increase vaccination rates,”5 deciding nonetheless that “[t]he challenged executive order easily falls within the scope of President Biden’s authority.” (Id. at *20.) After further finding irreparable harm to the government, Judge Cole theorized that he would have “grant[ed] the government’s motion to stay the district court’s injunction pending appeal.” (Id. at *21.) The dissent is notable because it provides the first source of authoritative support for the enforcement of contractor vaccine mandates promulgated under E.O. 14042.
Pending Fifth Circuit Appeal
On December 16, 2021, Judge Dee D. Drell for the Western District of Louisiana granted a preliminary injunction to suspend the government’s COVID-19 vaccine mandate for federal contractors under E.O. 14042.6 (Louisiana v. Biden, No. 21-CV-3867, 2021 WL 5986815, at *1 (W.D. La. Dec. 16, 2021).) The government subsequently filed a notice of appeal on January 11, 2022, challenging Judge Drell’s order. (See Louisiana v. Biden, No. 21-CV-3867, Dkt. No. 48 (W.D. La. Jan. 11, 2022).) The appeal is now pending before the Fifth Circuit Court of Appeals, which will be the third federal appellate court to weigh in on the legality of these contractor vaccination mandates.
2 “[W]hat is the logical stopping point of th[is] power? Even vaccinated employees may contract the flu (or COVID-19) at family gatherings, concerts, sporting events, and so on. May the President, in the name of the Property Act, mandate that covered employees also wear masks in perpetuity at each of those events . . . ?” Id. at *15.
4 “According to the Centers for Disease Control and Prevention (‘CDC’), 85.5% of individuals over the age of 18 have received at least one dose of the vaccine, while 72.8% are fully vaccinated. . . . If federal contractors constitute one fifth of the American workforce, . . . the executive order affects, at most, five percent of the workforce—a much smaller scale than the majority and the states implicate. . . . In addition, while 70% of unvaccinated workers say they would leave their job to avoid a vaccine requirement, in practice only five percent of workers have done so. . . . Therefore, the evidence indicates that most contractors are either already vaccinated or would choose to get vaccinated rather than quit their jobs.” Id. at *19.
5 “Courts have been historically reluctant to consider the President’s motivation[s] in issuing [an] Executive Order. . . . And with good reason: allowing political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives . . . could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes[.]” Id. at *20 (citation omitted); see also Id. at *1 (“President Biden delivered an address in which he announced that his ‘patience’ with ‘unvaccinated Americans ... is wearing thin.’”).
6 The preliminary injunction was “limited to contracts, grants, or any other like agreement . . . between the Plaintiff States and the national government” and did not apply to “contracts between private contractors and the national government.” Louisiana, 2021 WL 5986815 at *1.