State v. President of United States
| Decision Date | 26 August 2022 |
| Docket Number | 21-14269 |
| Parties | STATE OF GEORGIA, STATE OF ALABAMA, STATE OF IDAHO, STATE OF KANSAS, STATE OF SOUTH CAROLINA, et al., Plaintiffs-Appellees, v. PRESIDENT OF THE UNITED STATES, SAFER FEDERAL WORKFORCE TASK FORCE, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT AND CO-CHAIR SAFER FEDERAL WORKFORCE TASK FORCE, OFFICE OF MANAGEMENT AND BUDGET, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. l:21-cv-00163-RSB-BKE
Before Grant, Anderson, and Edmondson, Circuit Judges.
Executive Order 14042 directs executive agencies to include a clause in procurement agreements requiring federal contractors to comply with workplace safety rules designed to respond to the Covid-19 pandemic. We consider one of those requirements here: a mandate that employees who work on or in connection with a covered contract, or share a workplace with another employee who does, be fully vaccinated against Covid-19.
In this lawsuit-one of many brought across the country to challenge the contractor vaccine mandate-the district court entered a nationwide preliminary injunction after concluding that the plaintiffs were likely to prevail on their assertion that the mandate was outside the scope of the Procurement Act. The court ordered the federal government not to enforce the mandate in any covered agreement. We agree that the plaintiffs' challenge to the mandate will likely succeed and that they are entitled to preliminary relief. Even so, because the injunction's nationwide scope is too broad, we vacate it in part.
When Congress passed the Procurement Act (also called the Federal Property and Administrative Services Act) in 1949, it prefaced the new statute with a declaration of policy "It is the intent of the Congress in enacting this legislation to provide for the Government an economical and efficient system" for "the procurement and supply of personal property and nonpersonal services." Federal Property and Administrative Services Act of 1949, Pub. L. No. 81-152, § 2, 63 Stat. 377, 378. That purpose statement, with modernized language, is now found in § 101 of Title 40. See 40 U.S.C. § 101 ().
In line with that purpose, the Procurement Act constructed an administrative apparatus for the federal government's procurement system. At the head of that system is the President. The Act authorizes the President, in the key provision here, to "prescribe policies and directives that the President considers necessary to carry out this subtitle," and directs that the "policies must be consistent with this subtitle." Id. § 121(a).
The phrase "this subtitle," in turn, covers two (lengthy) portions of the United States Code: subtitle I of Title 40, and most of Title 41, subtitle I, division C. Id. § 111(4). The Title 40 subtitle, among other things, creates the General Services Administration and empowers its Administrator to "procure and supply personal property and nonpersonal services for executive agencies to use in the proper discharge of their responsibilities." Id. §§301, 501(b)(1)(A). With authority echoing that of the President, the GSA Administrator can also "prescribe regulations to carry out this subtitle." Id. § 121(c)(1). The Title 41 division vests executive agencies with the authority to "make purchases and contracts for property and services" consistent with the "implementing regulations" of the GSA Administrator. 41 U.S.C. § 3101(a).
Title 41 also specifies parameters that executive agencies must follow when exercising their procurement authority. To begin, it generally requires agencies to use "competitive procedures" to "obtain full and open competition." Id. § 3301(a). And it stipulates that "a fair proportion of the total purchases and contracts for property and services" be "placed with small business concerns." Id. § 3104. These provisions and others like them fulfill the Act's stated purpose of providing "an economical and efficient system" for federal procurement. 40 U.S.C. § 101.
The federal government contends that the Procurement Act empowers the President to issue the contractor vaccine mandate. The mandate started with Executive Order 14042, which instructs executive agencies that contracts and solicitations generally must include a clause requiring compliance with "workplace safety guidance" published by the Safer Federal Workforce Task Force.[1] Exec. Order No. 14042, § 2, 86 Fed. Reg. 50,985, 50,985 (Sept. 9, 2021). Several categories of procurement agreements fall within that Order's sweep-those for services, construction, concessions, and property leases, as well as those made "in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public."[2] Id. § 5(a). The Order did not stop with new contracts and solicitations; it also covered extensions and renewals of existing contracts and stipulated that agencies were "strongly encouraged" to add the same requirements into existing contracts as well. Id. §§ 5(a), 6(c).
Task Force guidance followed after President Biden signed Executive Order 14042. It requires "COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation."[3] Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors 1, 5 (Sept. 24, 2021). This vaccine requirement applies to employees working "on or in connection with a covered contract"; it also applies to those who share their workplace. Id. at 3-4.
The Acting Director of the Office of Management and Budget soon determined that the vaccine requirement would improve "economy and efficiency" in federal contracting, which made it binding. 86 Fed. Reg. 53,691, 53,691-92 (Sept. 24, 2021); 86 Fed. Reg. 63,418, 63,423 (Nov. 10, 2021); see Exec. Order No. 14042, § 2(c), 86 Fed. Reg. at 50,985-86. Together, Executive Order 14042 and the rules and determinations that implement it comprise the "contractor vaccine mandate" that is the subject of this lawsuit.
In October 2021, the district court docketed a complaint filed by seven States-Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia-against the federal government, including President Biden and various executive officials and agencies. The States sought a declaration that the contractor vaccine mandate was unlawful and an injunction prohibiting its enforcement. A construction-industry trade organization, Associated Builders and Contractors, successfully moved to intervene as a plaintiff.
Considering the request for a preliminary injunction, the court found that the plaintiff States, as well as members of the trade association, "routinely" entered into contracts that would include the vaccine mandate, had "current contracts that could easily fall under" the new requirements, and "would typically continue to seek out contract opportunities with the federal government." In other words, the court found that the mandate would apply to the plaintiffs. It then agreed with them that the mandate likely exceeded the President's authority under the Procurement Act. After deciding that the other equitable factors-irreparable harm, the balance of the equities, and the public interest-also favored the plaintiffs, the court entered a nationwide preliminary injunction.
This lawsuit was one of many concerning the contractor vaccine mandate in district courts around the nation. Though other district courts also granted plaintiffs' requests for preliminary injunctive relief, the court below was the only one to enjoin the defendants from enforcing the mandate nationwide-that is, "in all covered contracts in any state or territory of the United States of America."[4]
The federal government now appeals, challenging both the merits of the preliminary injunction and its scope.
We review the district court's "ultimate decision" to grant a preliminary injunction for abuse of discretion. Teper v. Miller, 82 F.3d 989, 993 (11th Cir. 1996). To earn that form of relief, the moving party must show that "(1) it has a substantial likelihood of success on the merits; (2) it will suffer an irreparable injury unless the injunction is granted; (3) the harm from the threatened injury outweighs the harm the injunction would cause the opposing party; and (4) the injunction would not be adverse to the public interest." Gonzalez v. Governor of Georgia, 978 F.3d 1266, 1270-71 (11th Cir. 2020) (footnote omitted). When the government is the opposing party, as it is here, the third and fourth factors merge. Id. at 1271.
The plaintiffs' likelihood of success in this case "turns on a preliminary question"-the scope of authority that Congress delegated through the Procurement Act. Jysk Bed'N Linen v. Dutta-Roy, 810 F.3d 767, 774 (11th Cir. 2015). To answer that question, we must interpret the Act de novo. Teper, 82 F.3d at 993 ("The interpretation and application of a federal statute raises an issue of law, subject to plenary review."); see also, e.g., Trump v. Hawaii, 138 S.Ct. 2392, 2407-15, 2423 (2018) (). As for the other equitable factors, "the abuse-of-discretion standard allows a range of choices for the district court, so long as any choice...
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