On January 27, 2022, Judge Michael T. Liburdi for the District of Arizona authored the most recent decision to preliminarily enjoin the federal government’s COVID-19 vaccine mandate for employees of federal contractors and subcontractors. Plaintiffs, including the State of Arizona and Arizona Attorney General Mark Brnovich, sought to prevent the federal government and its agencies from enforcing the contractor vaccine mandate.1 The court observed “four parallel cases involving states’ challenges to the Contractor Mandate,”2 each of which enjoined the contractor vaccine mandate established under Executive Order (E.O.) 14042. (Brnovich v. Biden, No. CV-21-01568-PHX-MTL, 2022 WL 252396, at *5 (D. Ariz. Jan. 27, 2022).) Expressing skepticism as to whether the vaccine mandate conformed with the president’s authority over procurement, the court granted the preliminary injunction blocking the contractor vaccine mandate. (Id. at *29.)
Regarding standing, “[t]he State ha[d] shown that it [wa]s likely to suffer direct injury as a result of the Contractor Mandate.” (Id. at *9.) The injury was deemed “imminent and real” as “[d]efendants [we]re not demanding that Arizona agencies agree to incorporate a vaccination clause when their contracts may be up for renewal; instead, [d]efendants [we]re requiring State agencies to agree to modify their contracts now.” (Id. at 11.) Judge Liburdi’s assessment of standing is notable in its view of the government’s contractual autonomy. Here, defendants argued that the contractor mandate was “merely an exercise of the federal government’s unrestricted power to determine those with whom it will deal, and to fix the terms and conditions upon which it will enter into contracts.” (Id. (quotation marks omitted).) However, Judge Liburdi saw differently:
[A] private entity could require parties with whom it contracts to either vaccinate their workforces or risk losing its business. It may seem odd, then, to preclude the federal government from doing what a private corporation could do. But, despite Defendants' arguments to the contrary, the federal government is not simply another contracting entity. It is both a contractor and a regulator, wielding immense coercive power. And although federal contracts provide the mechanism through which the Contractor Mandate is implemented, the mandate is unquestionably both regulatory and policy-making in character.
(Id.) Ultimately, the court found “[d]efendants' argument that the State has no standing because the federal government is merely acting as contractor . . . unpersuasive.” (Id. at 12.)
Moving to the merits,3 the court held that the mandate far exceeded authority provided under Section 121(a) of the Procurement Act. (Id. at *17-19.) In the court’s view, to allow the mandate “would grant the President ‘a breathtaking amount of authority.’ . . . As long as the federal government could articulate some connection—no matter how tenuous—between the enacted policy and the broad goals of achieving economy and efficiency in federal procurement, the policy would be consistent with the [Procurement Act].” (Id. at *18 (quoting Ala. Ass'n of Realtors v. HHS, 141 S. Ct. 2485, 2489, 210 L. Ed. 2d 856 (2021)).) The court further held that the non-delegation doctrine and federalism counseled against the defendants’ view of presidential authority under the Procurement Act. (See id. *19-21.)
Plaintiffs also brought forth due process challenges to the contractor vaccine mandate, arguing “that the Contractor Mandate violates contractor employees’ fundamental ‘rights to bodily integrity and to refuse medical treatment.’” (Id. at *25.) The court disagreed, finding no substantive due process right to “refuse vaccination while an employee of a federal contractor.” (Id.) The plaintiffs’ remaining challenges to the contractor vaccine mandate also failed.4 Nonetheless, the court granted the preliminary injunction, determining that a halt to the overreaching mandate would prevent irreparable harm and favor public interest. (See id. at *27-28.) The injunction was “limited to the geographic boundaries of the State of Arizona.”5 (Id. at *29.)
1 Plaintiff Al Reble, an employee of the US Marshals Service, also challenged the government’s federal employee COVID-19 vaccine mandate. But the court found his claims nonjusticiable and unripe and declined to enter a preliminary injunction against the federal employee mandate. Brnovich v. Biden, No. CV-21-01568-PHX-MTL, 2022 WL 252396, at *1, 7-8, 29 (D. Ariz. Jan. 27, 2022).
2 Kentucky v. Biden, No. 3:21-cv-00055, 2021 WL 5587446 (E.D. Ky. Nov. 30, 2021); Georgia v. Biden, No. 1:21-cv-00163, 2021 WL 5779939 (S.D. Ga. Dec. 7, 2021); Missouri v. Biden, No. 4:21-cv-1300, 2021 WL 5998204 (E.D. Mo. Dec. 20, 2021); Florida v. Nelson, No. 8:21-cv-02524, 2021 WL 6108948 (M.D. Fla. Dec. 22, 2021).
3 The court denied the defendants’ other jurisdictional challenges, including arguments that the Court of Federal Claims had exclusive jurisdiction and that plaintiffs’ lacked the required cause of action. See id. at 13-15.
4 The court denied plaintiffs’ argument that the Revised OMB Determination, FAR Memorandum and Contractor FAQs violated Section 1707 of the Procurement Policy Act. Id. at *21-23. The court further denied plaintiffs’ argument that the Emergency Use Authorization statute conferred a “substantive right to refuse a vaccine.” Id. at *24.
5 Plaintiffs Phoenix Law Enforcement Association and United Phoenix Firefighters Association Local 493 also sought an injunction against the City of Phoenix after “the City, citing the Contractor Mandate, notified its employees that they would be required to receive the COVID-19 vaccine by January 18, 2022 or face discipline, up to and including termination.” Id. at *26. The court declined to issue an injunction over the City of Phoenix. First, “[t]he City ha[d] . . . suspended its vaccine requirement. . . . Thus, any claims against it [we]re likely nonjusticiable.” Id. at *26. Furthermore, plaintiffs’ failed to “demonstrate that they are entitled to substantive relief.” Id. Since the City of Phoenix was “not a federal actor. . . . [It] played no part in the enactment of the Contractor Mandate and plays no part in its enforcement.” Id. at *26 n.24.