67 F.4th 921
9th Cir.2023Background
- In Sept. 2021 President Biden issued Executive Order 14042 directing agencies, under the Federal Property and Administrative Services Act (Procurement Act), to include a COVID-19 safety clause (including vaccination requirements) in certain federal contracts; the policy was implemented via four documents: the EO, Safer Federal Workforce Task Force Guidance, an OMB Determination, and FAR Council Guidance.
- OMB concluded the contractor vaccine requirement would promote economy and efficiency by reducing COVID-related absenteeism, cost overruns, and project delays.
- Arizona and other plaintiffs sued; the district court entered a permanent injunction barring enforcement of the Contractor Mandate for contracts with parties domiciled or principally performed in Arizona.
- The government appealed; this Court stayed the injunction pending appeal and reversed, dissolving the district court’s permanent injunction.
- The Ninth Circuit’s decision addressed: (1) applicability of the Major Questions Doctrine to presidential action, (2) whether the Procurement Act authorized the Mandate (nexus/economy & efficiency), (3) nondelegation and federalism arguments, and (4) Procurement Policy Act notice-and-comment/APA challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of the Major Questions Doctrine | Arizona: MQD bars the Mandate because it is an exercise of authority of vast political and economic significance. | Government: MQD targets agencies, not presidential action; President acted under Procurement Act authority. | MQD does not apply to Presidential actions; even if it did, the Mandate is not a "transformative expansion" of authority. |
| Scope of the Procurement Act (authority/nexus to economy & efficiency) | Arizona: The Act does not authorize a public-health vaccine mandate over contractor employees; the Mandate exceeds the Act’s scope. | Government: The EO is tied to procurement goals; OMB made reasoned findings that vaccination promotes economy and efficiency. | Held within the President’s Procurement Act authority; OMB determination establishes a sufficient nexus to economy and efficiency. |
| Constitutional limits: nondelegation and state-sovereignty/federalism | Arizona: Delegating this power raises nondelegation problems and intrudes on traditional state police powers. | Government: The Act contains an intelligible principle and the Mandate addresses federal contracting (proprietary authority), not an improper invasion of state police power. | Nondelegation and federalism arguments fail; Procurement Act supplies an intelligible principle and the Mandate targets federal contracting. |
| Procurement Policy Act notice-and-comment / APA challenges | Arizona: Task Force Guidance, OMB Determination, and FAR guidance failed required procurement notice-and-comment procedures; APA violations. | Government: Task Force is not a covered "executive agency," the FAR guidance is nonbinding, and OMB properly invoked the waiver for urgent and compelling circumstances. | District court correctly rejected procedural challenges: Task Force and FAR Guidance lack independent binding effect; OMB permissibly invoked §1707(d) waiver; related APA claims fail. |
Key Cases Cited
- Util. Air. Regul. Grp. v. EPA, 573 U.S. 302 (2014) (formulation of the Major Questions Doctrine).
- West Virginia v. EPA, 142 S. Ct. 2587 (2022) (Major Questions analysis and discussion of "transformative expansion").
- Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) (President’s unique political accountability and separation-of-powers context).
- Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (EO must be grounded in a congressional delegation or statutory nexus).
- UAW–Labor Emp. & Training Corp. v. Chao, 325 F.3d 360 (D.C. Cir. 2003) (upholding a Procurement Act–based EO and applying a lenient nexus standard).
- Am. Fed’n of Lab. & Cong. of Indus. Orgs. v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) (historical use of Procurement Act to issue contractor-directed executive orders).
- Mistretta v. United States, 488 U.S. 361 (1989) (nondelegation jurisprudence and "intelligible principle").
- Biden v. Missouri, 142 S. Ct. 647 (2022) (upholding a health-and-safety condition on federal funding based on statutory authority).