No.

In The
Supreme Court of the United States

FIFTY-SIXTH ARIZONA LEGISLATURE, ET AL.,

Applicants,

v.

JOSEPH R. BIDEN, ET AL.,

Respondents.

EMERGENCY APPLICATION TO JUSTICE KAGAN FOR A

VACATUR OF THE STAY PENDING APPEAL ISSUED SUA SPONTE
BY THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KORY LANGHOFER
Counsel of Record
THOMAS BASILE
STATECRAFT PLLC
649 North Fourth Avenue, Suite B
Phoenix, AZ 85003
(602) 382-4078
[email protected]

Counsel for Applicants

 PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS

The parties to the proceeding below are as follows:

Applicants are the Fifty-Sixth Arizona Legislature (the “Legislature”) and

the Arizona Chamber of Commerce & Industry (the “Chamber”). They were

intervenors in the court of appeals.

Respondents are Joseph R. Biden, Alejandro N. Mayorkas, U.S. Department

of Homeland Security, Troy A Miller, Tae Johnson, Ur Mendoza Jaddou, Office of

Personnel Management, Kiran Ahuja, United States General Services

Administration, Shalanda Young, Safer Federal Worker Task Force, Jeffrey Zients,

L. Eric Patterson, James M. Murray, Deanne Criswell, Rochelle Walensky, Centers

for Disease Control and Prevention, Federal Acquisition Regulatory Council,

Mathew C. Blum, Lesley A. Field, Karla S. Jackson, Jeffrey A. Koses, John M.

Tenaglia, United States of America, United States Department of Justice, and

Merrick B. Garland (together, the “Federal Respondents”); and Kristin K. Mayes,

State of Arizona, Al Reble, Phoenix Law Enforcement Association, and United

Phoenix Firefighters Association (together, the “State Respondents”). The Federal

Respondents were defendants in the district court and appellants in the court of

appeals. The State Respondents were plaintiffs in the district court and appellees

in the court of appeals.

i
The related proceedings are:

1. Brnovich v. Biden, 562 F. Supp. 3d 123 (D. Ariz. 2022) (D. Ariz. January
27, 2022) (ruling finding vaccine mandate unlawful).

2. Brnovich v. Biden, No. 2:21-cv-01568-MTL (D. Ariz. February 10, 2022)

(permanent injunction).

3. Brnovich v. Biden, No. 2:21-cv-01568-MTL (D. Ariz. February 10, 2022)

(judgment).

4. Mayes v. Biden, No. 22-15518 (9th Cir. April 5, 2023) (sua sponte
summary stay of injunction pending appeal).

5. Mayes v. Biden, No. 22-15518 (9th Cir. April 19, 2023) (opinion reversing
district court order and dissolving injunction).

RULE 29.6 STATEMENT

As required by Supreme Court Rule 29.6, applicants hereby submit the

following corporate-disclosure statement.

1. Applicants have no parent corporation.

2. No publicly held corporation owns any portion of applicants, and

applicants are not a subsidiary of any publicly owned corporation.

ii
 TABLE OF CONTENTS

PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS ....................... i

RULE 29.6 STATEMENT ............................................................................................. ii
TABLE OF AUTHORITIES ........................................................................................ vii
INTRODUCTION .......................................................................................................... 1
OPINIONS BELOW ...................................................................................................... 6
JURISDICTION............................................................................................................. 6
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 6
STATEMENT OF THE CASE ....................................................................................... 7
A. Statutory and Regulatory Background ............................................................ 7
B. Procedural History .......................................................................................... 15
REASONS FOR GRANTING THE APPLICATION .................................................. 17
I. THIS COURT SHOULD AND LIKELY WILL GRANT REVIEW ............... 18
II. THE STAY ORDER IS DEMONSTRABLY ERRONEOUS AND
IRREPARABLY HARMS APPLICANTS ....................................................... 19
A. The Government Is Unlikely To Succeed on the Merits ............................ 19
1. The Vaccine Mandate Exceeds Any Textual Authorization in the
Procurement Act ............................................................................................... 19
2. The Vaccine Mandate Fails Under the Major Questions Doctrine ........ 22
a. The Doctrine Applies to Presidential Actions ......................................... 22
b. The Contractor Mandate Is “Regulatory” ............................................... 24
c. The President’s Sweeping Claim of Executive Authority Presents a
Major Question ......................................................................................... 25
d. The Procurement Act Does Not Clearly Authorize the Contractor
Mandate .................................................................................................... 28
B. The Government Has Not Satisfied the Equitable Factors ......................... 30
1. Applicants’ Harms from The Stay Are Severe and Irreparable............. 30
a. The Applicants Are Irreparably Injured by Unrecoverable Compliance
Costs ......................................................................................................... 30
b. The Contractor Mandate Infringes State Sovereignty by Effectively
Abrogating State Law and Unlawfully Constraining State Lawmaking
Authority .................................................................................................. 31

iii
 c. The Legislature May Seek Redress of the Irreparable Injuries a Stay
Would Inflict on the State’s Sovereignty ................................................. 34
d. Federal Respondents’ Temporary Non-Enforcement of the Contractor
Mandate Does Not Remediate the Injuries Inflicted by the Stay .......... 36
2. Vacatur of the Stay Will Not Harm the Government and Will Serve the
Public Interest ............................................................................................... 39
CONCLUSION............................................................................................................. 40

iv
 INDEX OF APPENDICES

Page

Lower Court Orders and Opinions

APPENDIX A: Opinion of the United States Court of Appeals

for the Ninth Circuit (April 19, 2023) ................................................................ 1a

APPENDIX B: Sua Sponte Stay Order of the United States Court of

Appeals for the Ninth Circuit (April 5, 2023) ................................................. 51a

APPENDIX C: Intervention Order of the United States Court

of Appeals for the Ninth Circuit (February 28, 2023) ................................... 53a

APPENDIX D: Opinion of the United States District Court

for the District of Arizona (January 27, 2022) ................................................ 55a

APPENDIX E: Permanent Injunction of the United States

District Court for the District of Arizona (February 20, 2022) ................... 92a

APPENDIX F: Judgment of the United States District

Court for the District of Arizona (February 20, 2022) ................................... 95a

Constitutional, Statutory, and Regulatory Provisions

APPENDIX G: U.S. Const. art. I, § 1.............................................................. 98a

APPENDIX H: U.S. Const. art. VI, cl. 2 ........................................................ 99a

APPENDIX I: 3 U.S.C. § 301 ........................................................................... 100a

APPENDIX J: 3 U.S.C. § 302 .......................................................................... 101a

APPENDIX K: 40 U.S.C. § 101 ....................................................................... 102a

APPENDIX L: 40 U.S.C. § 121 ........................................................................ 103a

APPENDIX M: 41 U.S.C. § 1303 ..................................................................... 106a

APPENDIX N: Protecting the Federal Workforce and Requiring Mask-Wearing,

Exec. Order No. 13,991, 86 Fed. Reg. 7,045, 7,046 (Jan. 20, 2021) .................. 109a

APPENDIX O: Exec. Order No. 14,042, Ensuring Adequate COVID Safety

Protocols for Federal Contractors, 86 Fed. Reg. 50,985 (Sept. 9, 2021) ........... 113a
v
 APPENDIX P: Determination of the Promotion of Economy and Efficiency
in Federal Contracting Pursuant to Executive Order No. 14042, 86 Fed. Reg.
53,691 (Sept. 28, 2021) ....................................................................................... 117a

APPENDIX Q: Determination of the Acting OMB Director Regarding the

Revised Safer Federal Workforce Task Force Guidance for Federal Contractors
and the Revised Economy & Efficiency Analysis, 86 Fed. Reg. 63,418 (Nov. 16,
2021).................................................................................................................... 119a

Excerpts of Record

APPENDIX R: Remarks of President Biden Fighting the COVID-19

Pandemic (Sept. 9, 2021) .................................................................................... 127a

APPENDIX S: Safer Federal Workforce Task Force, COVID-19

Workplace Safety: Guidance for Federal Contractors and Subcontractors (Sept.
24, 2021) .............................................................................................................. 140a

APPENDIX T: Safer Federal Workforce Task Force, FAQs ............................ 154a

APPENDIX U: FAR Council, Memorandum for Chief Acquisition Officers,

Senior Procurement Executives, Defense Acquisition Regulations Council,
Civilian Agency Acquisition Council (Sept. 30, 2021) ....................................... 174a

APPENDIX V: Letter from the Arizona Attorney General’s Office to the

Clerk of the United States Court of Appeals for the Ninth Circuit
(Feb. 14, 2023) .................................................................................................... 179a

Other Document

APPENDIX W: Declaration of Tom Ducey (April 21, 2023) ............................ 182a

vi
 TABLE OF AUTHORITIES

Cases
Abbott v. Perez,
138 S. Ct. 2305 (2018) .............................................................................................. 32
Alabama Ass’n of Realtors v. HHS,
141 S. Ct. 2485 (2021) .................................................................................... 4, 26, 40
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez,
458 U.S. 592 (1982) .................................................................................................. 31
Already, LLC v. Nike, Inc.,
568 U.S. 85 (2013) .................................................................................................... 37
Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,
564 U.S. 721 (2011) .................................................................................................. 17
B & B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138 (2015) .................................................................................................. 23
Berger v. N.C. State Conference of the NAACP,
142 S. Ct. 2191 (2022) ........................................................................................ 34, 36
Biden v. Missouri,
142 S. Ct. 647 (2022) ................................................................................................ 33
Bond v. United States,
564 U.S. 211 (2011) .................................................................................................. 33
Bowen v. Public Agencies Opposed to Social Sec. Entrapment,
477 U.S. 41 (1986) .................................................................................................... 32
Bowersox v. Williams,
517 U.S. 345 (1996) .................................................................................................... 2
Brnovich v. Biden,
562 F. Supp. 3d 123 (D. Ariz. 2022)........................................................................... 6
Cameron v. EMW Women’s Surgical Ctr.,
142 S. Ct. 1002 (2022) .............................................................................................. 34
Chamber of Commerce of U.S. v. Brown,
554 U.S. 60 (2008) .................................................................................................... 24
Chamber of Commerce of U.S. v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) .................................................................................. 25
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) ............................................................................................ 26, 29
City of Arlington, Tex. v. F.C.C.,
569 U.S. 290 (2013) .................................................................................................. 23

vii
Coleman v. Paccar, Inc.,
424 U.S. 1301 (1976) ................................................................................................ 17
Commonwealth v. Biden,
57 F.4th 545 (6th Cir. 2023) ........................................................................ 18, 20, 22
Demosthenes v. Baal,
495 U.S. 731 (1990) .................................................................................................. 17
Doe #1 v. Trump,
957 F.3d 1050 (9th Cir. 2020) .................................................................................. 39
Ethington v. Wright,
189 P.2d 209 (Ariz. 1948) ......................................................................................... 35
Feds for Med. Freedom v. Biden,
63 F.4th 366 (5th Cir. 2023) .................................................................................... 10
Florida v. Nelson,
576 F. Supp. 3d 1017 (M.D. Fla. 2021) .................................................................... 14
Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .................................................................................................. 22
Food Mktg. Inst. v. Argus Leader Media,
139 S. Ct. 2356 (2019) .............................................................................................. 19
Friends of the Earth, Inc. v. Laidlaw Env’tl Servs. (TOC), Inc.,
528 U.S. 167 (2000) .................................................................................................. 38
Georgia v. Biden,
574 F. Supp. 3d 1337 (S.D. Ga. 2021), aff’d in part,
46 F.4th 1283 (11th Cir. 2022) .............................................................. 15, 18, 31, 37
Gonzales v. Oregon,
546 U.S. 243 (2006) .................................................................................................. 19
Hillsborough Cnty. v. Automated Med. Labs., Inc.,
471 U.S. 707 (1985) .................................................................................................. 27
Jama v. Immigration & Customs Enforcement,
543 U.S. 335 (2005) .................................................................................................. 29
Kentucky v. Biden,
23 F.4th 585 (5th Cir. 2022) .................................. 1, 3, 14, 15, 18, 20, 21, 28, 29, 33
Kingdomware Techs., Inc. v. United States,
579 U.S. 162 (2016) .................................................................................................. 20
Lagos v. United States,
138 S. Ct. 1684 (2018) .............................................................................................. 20
Louisiana v. Becerra,
577 F. Supp. 3d 483 (W.D. La. 2022) ............................................................. 8, 33, 40

viii
Louisiana v. Biden,
575 F. Supp. 3d 680 (W.D. La. 2021), aff’d,
55 F.4th 1017 (5th Cir. 2022) .............................................................. 3, 4, 15, 18, 31
Maryland v. King,
567 U.S. 1301 (2012) ................................................................................................ 32
Missouri v. Biden,
576 F. Supp. 3d 622 (E.D. Mo. 2021) ....................................................................... 15
Murphy v. Nat’l Collegiate Athletic Ass’n,
138 S. Ct. 1461 (2018) .............................................................................................. 31
Nat’l. Assn. of Home Builders v. Defenders of Wildlife,
551 U.S. 644, (2007) ................................................................................................. 19
Navajo Ref. Co., L.P. v. United States,
58 Fed. Cl. 200 (2003) ................................................................................................ 7
Netherland v. Tuggle,
515 U.S. 951 (1995) .................................................................................................... 2
New York v. United States,
505 U.S. 144 (1992) .................................................................................................. 28
NFIB v. OSHA,
142 S. Ct. 661 (2022) .................................................................... 9, 24, 25, 26, 27, 28
Nken v. Holder,
556 U.S. 418 (2009) .................................................................................... 2, 5, 19, 39
Oklahoma v. Castro-Huerta,
142 S. Ct. 2486 (2022) .............................................................................................. 19
Purcell v. Gonzalez,
549 U.S. 1 (2006) ........................................................................................................ 2
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) ............................................................................................ 38, 39
Ryan v. Schad,
570 U.S. 521 (2013) .................................................................................................. 18
Seila Law LLC v. Consumer Fin. Protection Bureau,
140 S. Ct. 2183 (2020) .............................................................................................. 23
Shawnee Tribe v. Mnuchin,
984 F.3d 94 (D.C. Cir. 2021) .................................................................................... 40
Tandon v. Newsom,
141 S. Ct. 1294 (2021) .............................................................................................. 38
Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994) .................................................................................................. 30

ix
Tiger Lily, LLC v. U.S. Dep’t. of Housing and Urban Dev.,
992 F.3d 518 (6th Cir. 2021) ...................................................................................... 5
UAW-Labor Employment & Training Corp. v. Chao,
325 F.3d 360 (D.C. Cir. 2003) .............................................................................. 5, 25
United States v. Sineneng-Smith,
140 S. Ct. 1575 (2020) ........................................................................................ 17, 18
Utility Air Regulatory Group v. EPA,
573 U.S. 302 (2014) ........................................................................................ 4, 24, 27
West Virginia v. Env’tl. Protection Agency,
142 S. Ct. 2587 (2022) .................................................. 3, 4, 18, 23, 24, 25, 27, 28, 37
Whitney v. Bolin,
330 P.2d 1003 (Ariz. 1958) ....................................................................................... 34
Wis. Dep’t. of Indus., Labor & Human Relations v. Gould Inc.,
475 U.S. 282 (1986) ............................................................................................ 24, 25
Zucht v. King,
260 U.S. 174 (1922) .............................................................................................. 1, 27

Constitutional Provisions
Ariz. Const. art. II, § 3 ........................................................................................... 35, 36
U.S. Const. art. II, § 1, cl. 1 ......................................................................................... 23

Statutes
3 U.S.C. § 301 ........................................................................................................... 7, 11
3 U.S.C. § 302 ................................................................................................................. 8
28 U.S.C. § 1254(1) ........................................................................................................ 6
28 U.S.C. § 1651 ......................................................................................................... 1, 6
29 U.S.C. § 651, et seq., Health and Safety Act, ......................................................... 26
40 U.S.C. § 101, et seq ..................................................................... 2, 3, 4, 7, 20, 21, 22
40 U.S.C. § 121(a) .......................................................................................... 3, 7, 21, 22
41 U.S.C. § 1303 ............................................................................................................. 7
41 U.S.C. § 1303(a)–(b) ................................................................................................ 11
41 U.S.C. § 1707 ............................................................................................................. 7
Ariz. Laws ch. 105 (2010) ............................................................................................ 35
Ariz. Laws ch. 180, § 1 ................................................................................................. 32

x
Ariz. Rev. Stat. § 12-1841 ...................................................................................... 34, 36
Ariz. Rev. Stat. § 12-1841(A), (D) ................................................................................ 35
Ariz. Rev. Stat. § 36-685 .................................................................................. 32, 35, 36
Ariz. Rev. Stat. § 41-193(A)(3)..................................................................................... 34
N.C. Gen. Stat. Ann. § 1-72.2 (2021) ........................................................................... 35

Judicial Rules
Fed. R. App. P. 26(a)(1)(C) ............................................................................................. 1
Fed. R. App. P. 40(a) ...................................................................................................... 1
Fed. R. App. P. 41(b) ...................................................................................................... 1
Fed. R. Civ. P. 54(b) ....................................................................................................... 6

Regulations
48 C.F.R. §§ 1.400–.405 ................................................................................................. 7
48 C.F.R. §§ 1.501-2(b)................................................................................................... 7

Legislative Materials
86 Fed. Reg. 50989 (Sept. 9, 2021) ................................................................................ 9
87 Fed. Reg. 3,928 (Jan. 26, 2022) ................................................................................ 9
H.J. Res. 7, 118th Cong. (2023), Relating to a National Emergency Declared by the
President on March 13, 2020 ................................................................................... 39

Executive Orders
Executive Order 14042. 86 Fed. Reg. 50,985 (Sept. 9, 2021) ............ 10, 11, 12, 15, 37

xi
Other Authorities
Federal Acquisition Regulation,
Answers to Frequently Asked Questions (Feb. 3, 2015), available at
https://sgp.fas.org/crs/misc/R42826.pdf ..................................................................... 7
NFIB v. OSHA, 142 S. Ct. 661 (2022),
142 S. Ct. 661 (2022), (No. 21A244, oral argument), available at
https://bit.ly/3CWWbUD ............................................................................................ 9
OMB,
Interim Guidance for Agencies on Enforcement and Clause Compliance
(Oct. 19, 2022), available at https://tinyurl.com/sbhn2vcc ...................................... 37
Safer Federal Workforce Task Force,
Federal Contractors: Update on Executive Order 14042 (Oct. 14, 2022),
https://www.saferfederalworkforce.gov/contractors/
(last accessed Apr. 16, 2023) .................................................................................... 37
Safer Federal Workforce Task Force,
Protecting the Federal Workforce During the COVID-19 Pandemic,
https://www.saferfederalworkforce.gov/overview/ .................................................... 8
Safer Federal Workforce Task Force,
What’s New, https://www.saferfederalworkforce.gov/new/
(last accessed Apr. 15, 2023)..................................................................................... 13

xii
TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE UNITED STATES
AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT:

Pursuant to Rule 23 of this Court and the All Writs Act, 28 U.S.C. § 1651, the

Legislature and the Chamber respectfully apply for an emergency order vacating the

stay pending appeal issued on April 5, 2023, sua sponte, by the United States Court

of Appeals for the Ninth Circuit. See App. 51a–52a. Although the Ninth Circuit

issued on April 19 a judgment dissolving the permanent injunction entered by the

district court, see App. 1a–50a, the mandate will not issue until June 12, 2023. See

Fed. R. App. P. 41(b), 40(a)(1), 26(a)(1)(C). Thus, the stay remains the operative and

controlling order of the Ninth Circuit.

INTRODUCTION

The case concerns the legality of the Executive Branch’s vaccine mandate for

the employees of federal contractors (the “Contractor Mandate”), who collectively

constitute “approximately one-fifth of the entire U.S. labor force” or more than 30

million workers. App. 74a; Kentucky v. Biden, 23 F.4th 585, 606–07 (5th Cir. 2022).

The Contractor Mandate is an unprecedented claim of presidential authority. Before

September 2021, the federal government had never mandated vaccinations for the

domestic civilian populace. Even as smallpox, polio, and influenza spread throughout

the country, vaccine mandates were always viewed as an exercise of the general

police power to be exercised by duly elected state legislatures and subdivisions of the

States. See generally Zucht v. King, 260 U.S. 174, 176 (1922). Throughout those

crises and the COVID-19 pandemic, even Congress—with the full authority of Article

I—has never mandated vaccination for anyone other than government personnel
1
serving overseas or the military. And although the Executive Branch claims the

Contractor Mandate is authorized under the Federal Property and Administrative

Services Act (the “Procurement Act”), 40 U.S.C. § 101, et seq., the Executive Branch

had before never cited the Procurement Act as the basis for imposing health-based

requirements of any kind on civilian employees.

Procedurally, this application challenges the Ninth Circuit’s sua sponte order

staying the district court’s injunction against enforcement of the Contractor Mandate

in Arizona, which otherwise would have remained in effect pending issuance of the

mandate. Because the Federal Respondents did not request a stay below, the Ninth

Circuit overreached when it disturbed the status quo and stayed the district court’s

injunction sua sponte. See Nken v. Holder, 556 U.S. 418, 426, 426, 433–34 (2009)

(discussing four traditional stay factors and emphasizing, “[t]he party requesting a

stay bears the burden of showing that the circumstances justify an exercise of that

discretion”) (emphasis added). Summary stay orders prevent this Court from

assessing whether the court of appeals followed (or for that matter, considered) the

law, and thus the “entry of a stay without explanation is disfavored.” Bowersox v.

Williams, 517 U.S. 345, 346 (1996) (citing Netherland v. Tuggle, 515 U.S. 951 (1995)

(per curiam)). In at least one case, this Court has held that the entry of a stay order

devoid of citations or stated reasons constituted legal error requiring vacatur. Purcell

v. Gonzalez, 549 U.S. 1, 5 (2006) (per curiam) (“It was . . . necessary, as a procedural

matter, for the Court of Appeals to give deference to the discretion of the District

Court. We find no indication that it did so, and we conclude this was error.”).

2
Although the Ninth Circuit revealed its reasoning on April 19, its opinion does not

relieve the Federal Respondents of the burden they otherwise would carry to justify

a stay of the district court’s injunction.

Even if the Ninth Circuit’s April 19 opinion is construed as a post hoc

exposition of its rationale for a stay, it still necessitates this Court’s intervention. At

the very least, the Ninth Circuit’s order creates a bona fide circuit split. As three

circuit courts have already concluded, the Contractor Mandate is unlawful for at least

two independent reasons. First, the Procurement Act at most confers authority “to

implement systems making the government’s entry into contracts less duplicative

and inefficient, but it does not authorize [the President] to impose a medical mandate

directly upon contractor employees themselves.” Kentucky, 23 F.4th at 605 (holding

that the Contractor Mandate exceeds the President’s authority under the

Procurement Act). The Contractor Mandate therefore fails under the text of the

Procurement Act.

Second, even if there is “a colorable textual basis,” West Virginia v. Env’tl.

Protection Agency, 142 S. Ct. 2587, 2609 (2022), for positing that the Procurement

Act authorizes certain executive action regulating federal contractors that the

President deems “economical” and “efficien[t],” see U.S.C. §§ 101, 121(a), this is a

paradigmatic major questions case. See Louisiana v. Biden, 55 F.4th 1017, 1027–33

(5th Cir. 2022) (holding the Contractor Mandate is unlawful under the major

questions doctrine). The Contractor Mandate is an assertion of “‘unheralded’

regulatory power over ‘a significant portion of the American economy.’” West

3
Virginia, 142 S. Ct. at 2608 (quoting Utility Air Regulatory Group v. EPA, 573 U.S.

302, 324 (2014)); see also Alabama Ass’n of Realtors v. HHS (“Alabama Realtors”),

141 S. Ct. 2485, 2489 (2021). Because it raises a major question, the Contractor

Mandate is lawful only if the Procurement Act supplied “‘clear congressional

authorization’ for the power [Federal Respondents] claim[].” West Virginia, 142 S.

Ct. at 2609. But the Act does no such thing; its text does not address public health

at all, and in its 73-year history the Procurement Act has never served as the

ostensible basis for dictating medical directives to private business’ employees.

Instead, the Procurement Act speaks only in vague and general terms (in a prefatory

clause, no less) about “econom[y] and efficien[cy].” See 40 U.S.C. § 101. Such a thin

textual reed cannot sustain the aggressive claim of presidential power at issue here.

Louisiana, 55 F.4th at 1027–33.

It is on this point that the Ninth Circuit’s opinion reveals its consequential

misunderstanding of the major questions doctrine. Affixing to the major questions

doctrine two significant constraints never recognized by this Court, the Ninth Circuit

announced that the doctrine does not apply to any acts of the President or to

Executive Branch edicts that are purportedly “proprietary.” Neither of these

propositions is persuasive. The major questions doctrine vindicates the separation

of powers. It is employed to demarcate spheres of authority between the legislative

and executive departments; its terms and underlying logic are impervious to

allocations of statutory authority within the Executive Branch. And even if the Ninth

Circuit’s exemption of “proprietary” acts from the major questions doctrine were

4
sound, the Contractor Mandate is explicitly “regulatory.” According to the President

himself, the Contractor Mandate was designed to increase COVID-19 vaccination

rates; it “operates on government procurement across the board” and is not “tailored

to any particular setting.” UAW-Labor Employment & Training Corp. v. Chao, 325

F.3d 360, 363 (D.C. Cir. 2003).

For these reasons, the Federal Respondents, even if they had tried, could not

make a “strong showing” of likelihood of success on the merits, which is one of the

“most critical” stay factors. See Nken, 556 U.S. at 434. When a movant presents no

likelihood of success on the merits, a court need not consider the additional three stay

factors. See Tiger Lily, LLC v. U.S. Dep’t. of Housing and Urban Dev., 992 F.3d 518,

522 (6th Cir. 2021) (“When a party has no likelihood of success on the merits, we may

not grant a stay.”). Accordingly, the Ninth Circuit’s sua sponte stay order should be

vacated because no movant has ever demonstrated a likelihood of success.

In any event, Applicants meet the other requirements that justify vacating the

Ninth Circuit’s stay order. The Legislature and the Chamber will suffer

unrecoverable financial costs and, in the case of the Legislature, injury to the State’s

sovereign interests. And the federal government’s balance-of-equities arguments

merely recycle COVID-19-pandemic-based generic recitations that courts repeatedly

have deemed inadequate justifications for unprecedented governmental diktats

enveloping large swaths of American economic and civic life. The district court

therefore rightly enjoined implementation of the Contractor Mandate as to

contractors domiciled or headquartered in Arizona or contracts principally performed

5
in Arizona, a modest remedy that tracks the scope of the Applicants’ injuries—and

hardly an abuse of discretion justifying a stay.

OPINIONS BELOW

The merits opinion of the district court is published in the Federal

Supplement, Brnovich v. Biden, 562 F. Supp. 3d 123 (D. Ariz. 2022), and is

reproduced at App. 55a–91a. The permanent injunction of the district court is not

published in the Federal Supplement but is reproduced at App. 92a–94a. The

summary, sua sponte stay of the Ninth Circuit is not published in the Federal

Reporter but is reproduced at App. 95a–97a. The Ninth Circuit’s April 19 opinion

has not yet been published in the Federal Reporter but is reproduced at App. 1a–50a.

JURISDICTION

The district court entered final judgment pursuant to Fed. R. Civ. P. 54(b) on

February 10, 2022. The government filed a notice of appeal on April 10, 2022. The

Ninth Circuit entered its sua sponte stay on April 5, 2023 and issued a judgment on

April 19, 2023. This Court has jurisdiction under 28 U.S.C. §§ 1254(1) and 1651.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Pertinent constitutional, statutory, and regulatory provisions are reproduced

in an appendix to this brief. App. 98a–126a.

6
 STATEMENT OF THE CASE

A. Statutory and Regulatory Background

1. The Procurement Act was adopted in the wake of World War II to

streamline federal property management. 40 U.S.C. § 101, et seq. Its stated purpose

was to “provide the Federal Government with an economical and efficient system”

for certain activities, including “[p]rocuring and supplying property and nonpersonal

services.” Id. § 101(1). The Procurement Act authorizes the President to “prescribe

policies and directives that the President considers necessary to carry out” certain

substantive provisions of the Procurement Act, but those “policies must be consistent

with” specific provisions of the Act. Id. § 121(a).

The Federal Acquisition Regulations System (“FAR”) provides the process for

“acquisitions of goods and services by Executive Branch agencies.” See Congressional

Research Service, The Federal Acquisition Regulation (FAR): Answers to Frequently

Asked Questions at 2 (Feb. 3, 2015), available at https://sgp.fas.org

/crs/misc/R42826.pdf. The FAR is promulgated by the FAR Council, which is

composed of the heads of various agencies. See 41 U.S.C. § 1303. The FAR is, by

design, a rigid process that limits purchaser discretion. Deviations from FAR

procedures are restricted, see 48 C.F.R. §§ 1.400–.405, and the FAR Council must

ordinarily go through a rulemaking process to change the FAR itself, see Navajo Ref.

Co., L.P. v. United States, 58 Fed. Cl. 200, 207–08 (2003); 48 C.F.R. §§ 1.501-2(b); 41

U.S.C. § 1707. Under 3 U.S.C. § 301, the President may delegate his statutory

authority, but only to appointed officials who have been confirmed by the Senate.

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And the President may not delegate his statutory authority if the relevant statute

“affirmatively prohibit[s] delegation.” 3 U.S.C. § 302.

2. On his first day in office, President Biden established the Safer Federal

Workforce Taskforce (“SFWTF”) to “provide ongoing guidance to heads of agencies . .

. during the COVID-19 pandemic.” App. 110a. Membership of the SFWTF includes

White House staffers not subject to Senate confirmation. See Safer Federal Workforce

Task Force, Protecting the Federal Workforce During the COVID-19 Pandemic,

https://www.saferfederalworkforce.gov/overview/ (identifying among its members

the Directors of the Federal Protective Service, Secret Service, and U.S. Centers for

Disease Control and Prevention) (last accessed Apr. 15, 2023). The President also

issued various health regulations for federal land, buildings, and employees. App.

109a–112a. The President did not, at that time, mandate vaccines for private sector

employees or the general public.

3. On September 9, 2021, the President abruptly changed course. “After

initially rejecting vaccine mandates, President Joe Biden’s ‘patience’ began ‘wearing

thin’ with those ‘who haven’t gotten vaccinated.’” Louisiana v. Becerra, 577 F. Supp.

3d 483, 488 (W.D. La. 2022) (cleaned up); App. 130a. Explaining that “[t]his is not

about freedom or personal choice,” President Biden declared that the “time for

waiting [to get vaccinated] is over.” Not limiting his public rebuke to citizens who

opted not to accept vaccination, President Biden stated that he would “take[] on

elected officials and states” and “use my power as President to get them out of the

way.” App. 135a. To do so, the President “announc[ed] . . . a new plan to require

8
more Americans to be vaccinated.” That plan consisted of a constellation of vaccine

mandates, covering “100 million Americans—two thirds of all workers.” App. 132a.

After delivering the foregoing remarks, President Biden issued a series of

vaccination mandates. Without a generally applicable mandate adopted by

Congress, the President took an “agency by agency” approach to forcing as many

Americans as possible to undergo vaccination. See Transcript of Oral Argument at

79, NFIB v. OSHA, 142 S. Ct. 661 (2022) (No. 21A244), available at

https://bit.ly/3CWWbUD. Consequently, new vaccination mandates emanated from

every corner of the federal administrative state.

Last year, the federal government ultimately withdrew one mandate issued by

the Occupational Safety and Health Administration (“OSHA”), which required most

employers to fully vaccinate their workforce or show negative tests, after this Court

held that the OSHA mandate likely exceeded the Secretary of Labor’s statutory

authority. See NFIB v. OSHA, 142 S. Ct. 661 (2022); 87 Fed. Reg. 3,928 (Jan. 26,

2022). There, this Court granted emergency relief to states, businesses, trade groups,

nonprofit organizations, and others, and stayed the OSHA rule, reasoning that the

applicants were likely to succeed on the merits of their claim challenging the

Secretary’s authority and “[t]he equities do not justify withholding interim relief.”

142 S. Ct. at 664–66. The same day that he issued the executive order authorizing

the Contractor Mandate, the President also issued Executive Order 14043, which

generally required the vaccination of all federal employees. See 86 Fed. Reg. 50989

(Sept. 9, 2021). One month ago, relying in part on this Court’s opinion in NFIB v.

9
OSHA, the Fifth Circuit upheld a nationwide injunction of that mandate. Feds for

Med. Freedom v. Biden, 63 F.4th 366 (5th Cir. 2023) (en banc).

4. At issue here is the Contractor Mandate, which President Biden issued

as Executive Order 14042. 86 Fed. Reg. 50,985 (Sept. 9, 2021) (“EO 14042”). Unlike

many other mandates that involved single agencies, the Contractor Mandate is a

more complicated, multi-agency affair consisting of four major components:

i. The President directed the SFWTF, including its members who lack

confirmation by the U.S. Senate, to publish “guidance” mandating

vaccines for employees of federal contractors. Id. § 2(b).

ii. The President ordered the Office of Management and Budget (“OMB”)

to then “determine whether [the not yet existing SFWTF] Guidance will

promote economy and efficiency in Federal contracting.” Id. § 2(c).1

iii. The President directed “[e]xecutive departments and agencies” to

include a clause in nearly all2 new procurement contracts, contract

extensions, and renewals, requiring the contractor (and subcontractors)

to comply with all SFWTF guidance for “the duration of the contract.”

Id. §§ 2, 5. The President also directed the FAR Council “to implement

appropriate policy direction to acquisition offices for use of the clause by

1 The call for OMB factual findings seems redundant of the first section of EO 14042, which had
preordained summarily, unqualifiedly, and (apparently) presciently that the Contractor Mandate
would “promote[] economy and efficiency in Federal procurement.” EO 14042 § 1.
2 The Contractor Mandate exempts “grants,” contracts with “Indian Tribes,” contracts of
minimal value, and “subcontracts solely for the provision of products.” EO 14042 § 5; App. 114a–115a,
176a.

10
 recommending that agencies exercise their authority” to incorporate the

vaccination mandate clause in contracts, while the Council “amend[ed]

the [FAR]” to formally include the clause. Id. § 3.

iv. The President also “strongly encouraged” agencies to amend existing

contracts to include the same vaccination mandate clause. Id. § 6(c).

As authority for the Contractor Mandate, the President relied on the

Procurement Act. Curiously, the President also invoked 3 U.S.C. § 301 to support

his delegation of authority to SFWTF members who have never been confirmed by

the U.S. Senate, without articulating how that provision supports rather than

undermines the Contractor Mandate. See generally 41 U.S.C. § 1303(a)–(b).

5. On September 24, 2021, the SFWTF issued the guidance contemplated

in EO 14042. Under that guidance, “covered contractor employees” include all “full-

time or part-time employee[s]” working at a “covered contractor workplace.” A

“covered contractor workplace” includes a location where “any employee . . . working

on or in connection with a covered contract is likely to be present,” including all floors

and areas of a building where any work on federal contracts is done, “unless a covered

contractor can affirmatively determine that none of its employees on another floor or

in separate areas of the building will come into contact with a covered contractor

employee.” All “covered contractor employees” were required to be fully vaccinated

by December 8, 2021. Similarly, unless the contractor can “affirmatively determine”

that none of its employees will come into contact with a covered employee (including

“interactions through use of common areas”), all of its employees are subject to the

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mandate. The guidance also applies to outdoor workplaces and employees who work

exclusively from their homes. App. 145a–146a, 150a.

6. Four days later, the Acting Director of the OMB blessed the SFWTF

guidance in a single sentence: “Based on my review . . . , I have determined that

compliance by Federal contractors and subcontractors with the COVID-19 workplace

safety protocols detailed in [the SFWTF] guidance will improve economy and

efficiency by reducing absenteeism and decreasing labor costs for contractors and

subcontractors working on or in connection with a Federal Government contract.”

App. 117a–118a. It “included neither findings nor evidence to support [OMB’s]

conclusion.” Brnovich, 562 F. Supp. 3d at 152; App. 78a.

7. Two days later, the FAR Council issued a guidance memorandum

together with a new clause to be included in all agency procurement contracts. The

operative language of the new clause reads, “The Contractor shall comply with all

[SFWTF] guidance, including guidance conveyed through Frequently Asked

Questions [“FAQs”], as amended during the performance of this contract, for

contractor or subcontractor workplace locations published [on the SFWTF website].”

The Council also purported to amend the consultation requirements for FAR

deviations, identifying EO 14042 as the sole supporting authority. App. 174a–178a.

The FAQs posted on the SFWTF website, which the FAR Council language

incorporates by reference, are substantive. For example, the FAQs state that proof

of prior COVID infection does not exempt a person from vaccination—and the

SFWTF website baldly purports to preempt the laws of duly elected state

12
legislatures, explaining that the contract clause, and by implication the online FAQs

it incorporates, “are promulgated pursuant to Federal law and supersede any

contrary State or local law or ordinance.” App. 167a (emphasis added). This

incorporation by reference of frequent3 updates to the SFWTF online FAQs pioneers

a brave new experiment in regulation-by-third-party-blog-posts.

8. On November 16, 2021, after this suit and several others were filed,

OMB published a revised determination that the Contractor Mandate promotes

“economy and efficiency.” Unlike its initial determination, the new OMB

determination was longer than one sentence and supported by an explanation,

focused mainly on the general dangers posed by “a once in a generation pandemic”

that threatens the “health and safety of the American people” and reaches “all

Americans.” The OMB determination did not undergo notice-and-comment

procedures, asserting that the case for a vaccine mandate was “urgent.” In some

tension with that assertion, however, OMB simultaneously delayed the compliance

deadline past the holiday season, to January 18, 2022. App. 119a–126a.

9. “Workers employed by federal contractors comprise approximately one-

fifth of the entire U.S. labor force. . . . The [Contractor Mandate] covers virtually all

such employees, including employees who are not themselves working on federal

contracts, have previously been infected with COVID-19, work entirely outdoors, and

work remotely full time.” App. 78a.

3 The SFWTF has updated the Guidance via its FAQs more than 15 times. See SFWTF, What’s
New, https://www.saferfederalworkforce.gov/new/ (last accessed Apr. 15, 2023).

13
 10. Neither the Executive Order nor any subsequent agency actions

“identif[ied] any instance in which absenteeism attributable to COVID-19 among

contractor employees resulted in delayed procurement or increased costs.” Florida

v. Nelson, 576 F. Supp. 3d 1017, 1035 (M.D. Fla. 2021).

11. The State and many of its constituent entities regularly bid on and

renew federal contracts, and they are currently parties to many such contracts

involving large sums of money. For example, all three of “Arizona’s public

universities . . . are federal contractors. In 2021, their combined federal contracting

revenues totaled $1,207,926,800”—over a billion dollars. Federal Respondents

demanded that a number of State entities enforce the contractor vaccine mandate,

including (1) all three state universities; (2) the Arizona State Retirement System;

and (3) the Division of Civil Rights Section of the Arizona Attorney General’s Office.

Brnovich, 562 F. Supp. 3d at 143; App. 72a.

12. According to polling data, roughly 70% of the unvaccinated say they

would quit their job in response to a vaccine mandate, and 90% of large employers

believe that vaccine mandates will cause reductions in their workforces. Kentucky,

23 F.4th at 600–01 (citations omitted). Thus, “were the State to adhere to the

mandate and require its employees to be vaccinated, some employees would resign

or be terminated.” Furthermore, the mandate will cause “the State [to] incur

significant compliance and monitoring costs should its agencies be required to adhere

to the mandate” and face employee attrition risks. Brnovich, 562 F. Supp. 3d at 165;

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App. 86a. Non-governmental federal contractors must incur similar implementation

costs and risks of employee attrition.

B. Procedural History

States filed six other suits against the Contractor Mandate. In five4 of those

cases, the court issued a ruling on the merits. In all five of those cases, the States

prevailed. See Kentucky v. Biden, 571 F. Supp. 3d 715 (E.D. Ky. 2021), aff’d with

modifications, 57 F.4th 545 (6th Cir. 2023); Georgia v. Biden, 574 F. Supp. 3d 1337

(S.D. Ga. 2021), aff’d in part, 46 F.4th 1283 (11th Cir. 2022) (partial vacatur of

injunction as overly broad); Louisiana v. Biden, 575 F. Supp. 3d 680 (W.D. La. 2021),

aff’d, 55 F.4th 1017 (5th Cir. 2022); Missouri v. Biden, 576 F. Supp. 3d 622 (E.D. Mo.

2021); Florida, 576 F. Supp. 3d 1017.

This case was initiated by the State of Arizona and its Attorney General on

September 14, 2021, shortly after EO 14042 was issued. After a series of filings and

hearings not relevant here, the district court held oral argument on the State’s

second motion for preliminary injunction.

The district court found that the Contractor Mandate would cause the State

direct financial and sovereign injury, which established Article III standing.

Additionally, the court determined that EO 14042 exceeded the President’s authority

under the Procurement Act, that the State was likely to suffer irreparable harm, and

4 The sixth case, brought by the State of Texas, was stayed from December 2021 in light of the
nationwide injunction entered in the Georgia case. While the Texas case was stayed, the Texas court
denied the pending motion for preliminary injunction due to the absence of imminent injury to the
State of Texas. Texas v. Biden, No. 3:21-cv-00309 (S.D. Tex. Oct. 20, 2022). In March 2023, following
the Eleventh Circuit’s narrowing of injunction, see Georgia, 46 F.4th 1283, the district court lifted the
stay in the Texas case and is now awaiting a motion for summary judgment from the State of Texas.

15
that the balance of equities and public interest supported a grant of injunctive relief.

The court therefore announced that it would “issue an injunction limited to the

geographic boundaries of the State of Arizona.” App. 88a. The district court

subsequently entered a permanent injunction and final judgment against “[a]ll

[Federal Respondents] except . . . President Joseph Biden.” App. 92a–97a.

Federal Respondents appealed to the Ninth Circuit 57 days later, and have

never sought a stay of the district court’s injunction.

After briefing had closed, there was a change in leadership in the Arizona

Attorney General’s Office. The new administration notified the Ninth Circuit in

writing, 21 days before oral argument, that its attorneys would no longer advance

certain portions of the State’s case, including issues on which the State had prevailed

in the district court. App. 179a–181a (agreeing with Federal Respondents’ request

for a narrowed injunction, and no longer arguing the major questions doctrine).

The Legislature and the Chamber then moved to intervene in the appeal in

order to fully defend the district court’s order and preserve all arguments in support

of it. The Ninth Circuit panel granted permissive intervention. App. 53a–54a. Both

intervenors participated in oral argument before the panel on March 7, 2023.

On April 5, 2023 the panel entered a sua sponte, summary stay pending

appeal—14 months after the judgment of the district court, almost 12 months after

Federal Respondents appealed, and nearly one month after oral argument. App.

51a–52a. The Ninth Circuit released on April 19, 2023 an opinion and judgment that

16
dissolved the district court’s permanent injunction. See App. 1a–50a. The mandate

has not yet issued. See Fed. R. App. P. 41(b) 40(a)(1).

REASONS FOR GRANTING THE APPLICATION

A Circuit Justice may “vacate a stay where it appears that the rights of the

parties to a case pending in the court of appeals, which case could and very likely

would be reviewed here upon final disposition in the court of appeals, may be

seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion

that the [lower court] is demonstrably wrong in its application of accepted standards

in deciding to issue the stay.” Coleman v. Paccar, Inc., 424 U.S. 1301, 1304 (1976)

(Rehnquist, J., in chambers); see, e.g., Ariz. Free Enter. Club’s Freedom Club PAC v.

Bennett, 564 U.S. 721, 734 (2011) (noting vacatur of stay entered by court of appeals).

“Before granting a stay, [] federal courts must make certain that an adequate

basis exists for the exercise of federal power.” Demosthenes v. Baal, 495 U.S. 731, 737

(1990). No party in this case ever requested a stay. “In our adversarial system of

adjudication, we follow the principle of party presentation,” and in this framework,

courts should generally “decide only questions presented by the parties” instead of

“looking for wrongs to right” on its own initiative. United States v. Sineneng-Smith,

140 S. Ct. 1575, 1579 (2020) (cleaned up). In Sineneng-Smith, for example, this Court

held that “[n]o extraordinary circumstances justified the [Ninth Circuit] panel’s

takeover of the appeal,” where the panel invited several organizations to file amicus

briefs on three issues and ultimately invalidated a federal statute by granting relief

under the first issue that the panel itself had identified. Id. at 1581.

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 The Ninth Circuit likewise took over the appeal in this case, deciding on its

own initiative that the district court’s injunction should be stayed pending appeal.

App. 51a–52a. No extraordinary circumstances justified the Ninth Circuit’s

disturbance of the status quo. To the extent a court has any discretion to issue a sua

sponte and unexplained stay, the Ninth Circuit abused that discretion here. See

Sineneng-Smith, 140 S. Ct. at 1581; Ryan v. Schad, 570 U.S. 521 (2013) (reversing

judgment and vacating stay of execution where no extraordinary circumstances

justified the Ninth Circuit’s sua sponte decision to reconsider an argument).

I. THIS COURT SHOULD AND LIKELY WILL GRANT REVIEW

This case merits review. Even if the Ninth Circuit’s summary stay order had

explained its reasoning, it unavoidably conflicts with four published opinions of the

Fifth, Sixth and Eleventh Circuits over the lawfulness of the Contractor Mandate.

See Louisiana, 55 F.4th 1017; Kentucky, 23 F.4th 585; Georgia, 46 F.4th 1283;

Commonwealth v. Biden, 57 F.4th 545 (6th Cir. 2023).

Few issues are more consequential than the question over which the Ninth

Circuit has parted ways with its sister Circuits and with this Court. The Contractor

Mandate rests on a watershed claim of congressionally delegated authority over

industry, personal health decisions, and state legislatures that lacks any discernible

textual basis. If the Ninth Circuit is correct that the President can administratively

mandate “economical and efficient” behavior for one-fifth of the American workforce

and upend duly enacted state laws in the process—all in the absence of “‘clear

congressional authorization’ for the power [he] claims,” West Virginia, 142 S. Ct. at

2609 (citation omitted)—this result substantially erodes the separation of powers.

18
II. THE STAY ORDER IS DEMONSTRABLY ERRONEOUS AND
IRREPARABLY HARMS APPLICANTS

A stay may be granted—and remain in place—only when the litigant has made

(1) “a strong showing that [it] is likely to succeed on the merits” and a showing that

(2) it “will be irreparably injured absent a stay,” (3) a stay will not “substantially

injure the other parties interested in the proceeding,” and (4) “the public interest”

favors a stay. Nken, 556 U.S. at 434 (citation omitted). The Federal Respondents

have never made such a showing.

A. The Government Is Unlikely To Succeed on the Merits

1. The Vaccine Mandate Exceeds Any Textual Authorization in the

Procurement Act

Congress has never authorized the Executive Branch to regulate the internal

employee health practices of private businesses that happen to hold federal contracts.

When the President or an executive agency purports to act pursuant to a

congressional delegation, “[t]he starting point” for assessing the scope of this grant of

administrative authority is “of course, the language of the delegation provision itself.”

Gonzales v. Oregon, 546 U.S. 243, 258 (2006). As with all questions requiring

statutory exegesis, “the text of a law controls over purported legislative intentions

unmoored from any statutory text,” Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2496

(2022), and “a careful examination of the ordinary meaning and structure of the law

itself” is indispensable. Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356,

2364 (2019). Applicable words and phrases “must be read in their context and with

a view to their place in the overall statutory scheme.” Nat’l. Assn. of Home Builders

v. Defenders of Wildlife, 551 U.S. 644, 666 (2007).

19
 Neither of the two textual predicates that the Ninth Circuit invokes in the

Procurement Act can sustain the Contractor Mandate. First, 40 U.S.C. § 101 declares

that “[t]he purpose of this subtitle is to provide the Federal Government with an

economical and efficient system for . . . [p]rocuring and supplying property and

nonpersonal services, and performing related functions.” But the Ninth Circuit

conspicuously neglected to note that this provision is simply a prefatory clause. “A

statutory statement of purpose provides no legal authority.” Commonwealth, 57

F.4th at 551; it merely expostulates the generalized policy objective that underlies

the Procurement Act. See Kingdomware Techs., Inc. v. United States, 579 U.S. 162,

173 (2016) (while a prefatory clause “announces an objective that Congress hoped” to

achieve, “it does not change the plain meaning of the operative clause”).

Even if it imparted a substantive grant of administrative authority, the

Contractor Mandate lies well outside § 101’s narrow ambit. Congress’ stated

aspirations for economy and efficiency are conjoined specifically to a “system”

governing “procure[ment],” i.e., “the government’s initial entry into a contractual

agreement,” Kentucky, 23 F.4th at 605, and “related functions.” The illustrative

examples of such “related functions” itemized in § 101(1)—i.e., “contracting,

inspection, storage, issue, setting specifications, identification and classification,

transportation and traffic management,” etc.—all embody logistical and structural

attributes of the federal government’s framework for obtaining contracts and

specifying deliverable goods and services. See generally Lagos v. United States, 138

S. Ct. 1684, 1688–89 (2018) (“If we look to noscitur a sociis, the well-worn Latin

20
phrase that tells us that statutory words are often known by the company they keep,

we find here both the presence of company that suggests limitation and the absence

of company that suggests breadth.”). The provision does not envisage presidential

management of contractors’ internal human resources or personnel affairs, and

certainly not the compulsory vaccination of these private businesses’ employees.

In other words, to the extent it licenses any regulatory actions in its own

right, § 101 permits the President to design and implement mechanisms for

enhancing the economy and efficiency of the federal government’s “system” for

securing contractual agreements and contract deliverables. “[T]here is no textual

warrant to suggest that after the President or his agents have ‘economical[ly] and

efficient[ly]’ acquired those services that they then may impose whatever medical

procedure deemed ‘necessary’ on the relevant services personnel to make them more

‘economical and efficient.’” Kentucky, 23 F.4th at 604.

Second, the Ninth Circuit cites 40 U.S.C. § 121(a), which it amalgamates with

§ 101 to fashion a freestanding presidential prerogative to manage all facets of

contractors’ day-to-day internal affairs that may affect those contractors’ (and their

employees’) “econom[y]” or “efficien[cy].” See App. 40a–41a. This interpretive

maneuver, though, finds little textual sustenance. In actuality, § 121(a) allows the

President to “prescribe policies and directives that the President considers necessary

to carry out this subtitle. The policies must be consistent with this subtitle”

(emphases added). Thus, § 121(a) provides a vehicle for the President to implement

the various operative provisions of Subtitle I of Title 40—none of which is even alleged

21
to encompass the imposition of vaccine or other medical mandates on federal

contractors’ own employees. Left with no textual predicate in Subtitle I, the Ninth

Circuit reverts to § 101. But, as noted above, this argument fails for the simple reason

that § 101—as a mere statement of purpose—is devoid of any substantive grant of

authority that could be administered through § 121(a). See Commonwealth, 57 F.4th

at 552 (Ҥ 121(a) empowers the President to issue directives necessary to effectuate

the [Procurement] Act’s substantive provisions, not its statement of purpose”). In

short, there is no operative provision of the Procurement Act—implementable

through § 121(a)—that could plausibly authorize the President’s supervision of

federal contractors’ employees’ personal medical choices.

2. The Vaccine Mandate Fails Under the Major Questions Doctrine

a. The Doctrine Applies to Presidential Actions

The Ninth Circuit’s announcement that the major questions doctrine “does not

apply to Presidential actions,” App. 26a, is inconsistent with this Court’s precedents

and the doctrine’s conceptual underpinnings. While a dearth of political

“accountability,” id. 24a, in certain executive actions might broadly animate the

major questions doctrine, it is not a condition precedent to its application. To the

contrary, an assertion of administrative power “must always be grounded in a valid

grant of authority from Congress,” “regardless of how likely the public is to hold the

Executive Branch politically accountable.” Food & Drug Admin. v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 161 (2000). The major questions doctrine

is a product of the separation of powers. It is a mode of apprehending the existence

and scope of a statutory grant of administrative authority to the Executive Branch

22
pursuant to Congress’ Article I powers. See West Virginia, 142 S. Ct. at 2609

(grounding the major questions doctrine in “separation of powers principles and a

practical understanding of legislative intent”).

The Ninth Circuit’s professed solicitude for the President’s Article II

prerogatives as a rationale for exempting presidential actions from the major

questions doctrine, see App. 25a, likewise misses the mark. The Federal Respondents

have premised the Contractor Mandate specifically and exclusively on the

Procurement Act; they have never characterized it as a pure exercise of the

President’s inherent Article II powers. More fundamentally, the Ninth Circuit’s

reasoning proves too much. All administrative agencies are Article II

instrumentalities of the President. See City of Arlington, Tex. v. F.C.C., 569 U.S. 290,

304 n.4 (2013) (explaining that agencies’ “activities take ‘legislative’ and ‘judicial’

forms, but they are exercises of—indeed, under our constitutional structure they

must be exercises of—the ‘executive Power’” (quoting Art. II, § 1, cl. 1)); B & B

Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 170 (2015) (Thomas, J.,

dissenting) (“Executive agencies derive their authority from Article II of the

Constitution”).

Similarly, all administrative agencies—or at least those headed by officials

who serve at the President’s pleasure—are structured within the same channels of

political accountability that ostensibly constrain the President himself. See Seila

Law LLC v. Consumer Fin. Protection Bureau, 140 S. Ct. 2183, 2203 (2020) (noting

that the “constitutional strategy” “render[s] the President directly accountable to the

23
people,” and inferior officers “remain[] subject to the ongoing supervision and control

of the elected President”). The Ninth Circuit’s presidential exception hence ends up

subsuming the major questions rule, and is dissonant with West Virginia, Utility Air,

Brown & Williamson, and NFIB, all of which applied the major questions doctrine to

administrative pronouncements by politically accountable presidential appointees

under the auspices of faithfully executing the laws.

b. The Contractor Mandate Is “Regulatory”

To the extent it is relevant to the major questions rubric at all, the Contractor

Mandate is “regulatory”—not “proprietary”—in character. Importing from an

unrelated jurisprudential field (namely, preemption under the National Labor

Relations Act) the dichotomy between the government’s “proprietary” and

“regulatory” functions, the Ninth Circuit consigned the Contractor Mandate to the

former classification and declared it therefore exempt from the major questions

doctrine. See App. 27a. Even assuming the applicability of that bifurcation in this

context, the Contractor Mandate is regulatory. It is “neither ‘specifically tailored to

one particular job’ nor a ‘legitimate response to state procurement constraints or to

local economic needs.’” Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 70–71

(2008) (quoting Wis. Dep’t. of Indus., Labor & Human Relations v. Gould Inc., 475

U.S. 282, 289 (1986)). The President himself presented the Contractor Mandate as a

mechanism integrated into a multifaceted policy project to increase COVID-19

vaccination rates nationwide. See App. 127a–139a. Even the D.C. Circuit (a tribunal

hardly disposed to second-guessing aggressive Executive Branch deployments of the

Procurement Act) recognized that an order that “operates on government

24
procurement across the board, rather than being tailored to any particular setting . .

. is regulatory under prevailing principles.” Chao, 325 F.3d at 363.

The Contractor Mandate—a sweeping directive of nearly unconditional

application to all federal contracts, regardless of the nature of the contracted service

or its susceptibility to exacerbating COVID-19 transmission—transparently “seeks to

set a broad policy governing the behavior of thousands of American companies and

affecting millions of American workers.” Chamber of Commerce of U.S. v. Reich, 74

F.3d 1322, 1337 (D.C. Cir. 1996). It accordingly is “tantamount to regulation.”

Gould, 475 U.S. at 289.

c. The President’s Sweeping Claim of Executive Authority

Presents a Major Question

The Ninth Circuit’s novel preconditions to application of the major questions

doctrine aside, the legal basis for the Contractor Mandate qualifies as a major

question under each of the three doctrinal prongs. See West Virginia, 142 S. Ct. at

2620–21 (Gorsuch, J., concurring) (summarizing the doctrine’s application to

executive actions that (1) concern “matter[s] of great political significance,” (2) “seek[]

to regulate a significant portion of the American economy,” or (3) “intrud[e] into an

area that is the particular domain of state law”).

First, the district court found that the Contractor Mandate is a power of great

political significance, App. 78a, and the Federal Respondents have never denied the

enormous political implications and controversy attendant to the Contractor

Mandate. See also NFIB, 142 S. Ct. at 665 (holding that the OSHA mandate

constituted an “‘exercise [of] powers of vast . . . political significance’” because it was

25
“a significant encroachment into the lives—and health—of a vast number of

employees” (quoting Alabama Realtors, 141 S. Ct. at 2489)).

Second, the Ninth Circuit’s conclusion that “the Contractor Mandate is not a

‘transformative expansion’ of any authority,” App. 29a, finds easy refutation in this

Court’s recent precedents. In NFIB, the Court held that the Executive Branch’s

asserted authority to issue the OSHA workplace mandate presented a major question

because it “ordered 84 million Americans to either obtain a COVID-19 vaccine or

undergo weekly medical testing at their own expense,” and was therefore an

“‘exercise [of] powers of vast economic . . . significance.’” Id. Although the Contractor

Mandate affects a somewhat smaller portion of the American workforce—33 million

workers rather than 84 million, see App. 74a—the Federal Respondents, to their

credit, have never argued that 33 million workers comprise anything less than a

significant portion of the economy. See also Alabama Realtors, 141 S. Ct. at 2489

(emphasizing the expansive sweep of the eviction moratorium, which directly

affected “between 6 and 17 million tenants at risk of eviction”).

Whatever the Contractor Mandate may lack in numbers vis-à-vis the OSHA

mandate, it compensates with intrusiveness; unlike the OSHA directive, there is no

mask-and-test option in the Contractor Mandate. Compare NFIB, 142 S. Ct. at 662.

Instead, most employees of federal contractors face the stark choice of submitting to

mandatory vaccination or termination for cause. And unlike OSHA’s history of

regulating health in the workplace under the auspices of the Occupational Health

and Safety Act, 29 U.S.C. § 651, et seq., the federal government has never previously

26
invoked the Procurement Act to regulate workplace health. The Contractor Mandate

thus represents an even more expansive and novel assertion of “‘unheralded’

regulatory power ‘over a significant portion of the American economy.’” West

Virginia, 142 S. Ct. at 2608 (quoting Utility Air, 573 U.S. at 324). Remarkably, the

Ninth Circuit deemed neither NFIB nor Alabama Realtors deserving of any

substantive discussion, or even direct acknowledgment; these controlling precedents

each appear only once, each time relegated to a nested citation. See App. 19a, 36a.

Third, this Court long ago made clear that public health regulation is a

traditional state power. Zucht, 260 U.S. at 176 (“[I]t is settled that it is within the

police power of a state to provide for compulsory vaccination.”); Hillsborough Cnty. v.

Automated Med. Labs., Inc., 471 U.S. 707, 719 (1985) (“[T]he regulation of health and

safety matters is primarily, and historically, a matter of local concern.”). Notably,

prior to 2021, the federal government had never attempted to mandate vaccination

for U.S. civilians. See NFIB, 142 S. Ct. at 662, 665 (emphasizing that neither OSHA

nor Congress had ever imposed a vaccine mandate and reasoning that the OSHA rule

presented “a significant encroachment into the lives—and health—of a vast number

of employees”). The Federal Respondents protest that there is no traditional state

prerogative in the terms of federal procurement, which misapprehends the issue.

Even if the States customarily have no say in the terms of federal contracts, they

“certainly have a traditional interest in regulating public health and, specifically, in

determining whether to impose compulsory vaccination on the public at large,” and

the Contractor Mandate seeks to . . . transfer[] this traditional prerogative from the

27
states to the federal government.” Kentucky, 23 F.4th at 609–10; cf. NFIB, 142 S. Ct.

at 662 (observing that the OSHA rule requiring covered workers to receive a COVID-

19 vaccine “pre-empts contrary state laws”). Indeed, regardless of the subject matter,

the preemption of duly enacted state laws by via updates to FAQs on the website of

an ad hoc federal taskforce, App. 152a, is a transformative disruption of the “‘delicate

balance’ the Constitution strikes between state and federal power.” New York v.

United States, 505 U.S. 144, 159 (1992) (citation omitted).

d. The Procurement Act Does Not Clearly Authorize the

Contractor Mandate

Because it implicates a major question, the executive’s claim of statutory

authority must be supported by “clear congressional authorization.” West Virginia,

142 S. Ct. at 2609 (citation omitted). The Procurement Act provides no such refuge.

It contains not a single reference to federal vaccine mandates, worker health, or

employee absenteeism. Rather, it requires “systems making the government’s entry

into contracts less duplicative and inefficient,” without any suggestion that the

federal administrative state can or should micromanage the “personal productivity”

of the employees of government contractors. Kentucky, 23 F.4th at 605–06; accord

Georgia, 46 F.4th at 1295 (“Nothing in the Act contemplates that every executive

agency can base every procurement decision on the health of the contracting

workforce. Instead, the statutory scheme establishes a framework through which

agencies can articulate specific, output-related standards to ensure that acquisitions

have the features they want.”); App. 78a (“‘The question, then, is whether the Act

plainly authorizes’ the mandate. It does not.” (citation omitted)).

28
 Methodologically, these courts’ analyses are consistent with this Court’s

approach in Chrysler Corp. v. Brown, 441 U.S. 281 (1979). There, the Court

acknowledged that the Procurement Act “explicitly authorizes Executive Orders

‘necessary to effectuate [its] provisions’” as noted by the respondents below, but

cautioned that “nowhere in the Act is there a specific reference to employment

discrimination.” Id. at 306 n.34.

Further, the Ninth Circuit saddles the notion of implied congressional

“affirmation . . . through re-enactment” of the Procurement Act, see App. 34a–35a,

with more weight than that modest maxim can bear. A handful of lower court

opinions—none of which featured a commandeering of private sector employees’

personal medical decisions—that sketch a deferential approach to executive

procurement edicts hardly evinces a “judicial consensus so broad and unquestioned

that we must presume Congress knew of and endorsed it.” Jama v. Immigration &

Customs Enforcement, 543 U.S. 335, 349 (2005); see also Kentucky, 23 F.4th at 607–

08 (commenting that no administrative directive countenanced by prior case law

“comes even close to the deployment of the [Procurement] Act to mandate a medical

procedure for one-fifth (or more) of our workforce”).

Even if the major questions doctrine does not demand a Chrysler-style “specific

reference” to a major executive power, it necessarily requires more than allusions to

nebulous notions of “economy and efficiency.” Such indeterminate phrases offer no

meaningful constraints or contours, and the core of the major questions doctrine is

that executive power demands a limiting principle. The Ninth Circuit, meanwhile,

29
has embraced a construction of the Procurement Act that admits none. Confronted

with the specter of executive overreach that its protean construction of the

Procurement Act has uncorked, the Ninth Circuit can do no more than deflect

“consideration of . . . hypothetical Executive Order[s] to a future court.” App. 43a.

B. The Government Has Not Satisfied the Equitable Factors

1. Applicants’ Harms from The Stay Are Severe and Irreparable

The Ninth Circuit’s stay of the district court’s injunction—which revives the

Contractor Mandate, even though the Ninth Circuit’s mandate has not yet issued—

severely and irreparably injures the Applicants by (1) imposing unrecoverable and

unavoidable financial costs; and (2) derogating the State of Arizona’s sovereign right

to make and enforce within its jurisdictional boundaries laws that balance public

health imperatives with respect for bodily autonomy.

a. The Applicants Are Irreparably Injured by Unrecoverable

Compliance Costs

The Ninth Circuit agreed that the Contractor Mandate encumbers the State

with financial costs entailed in ensuring compliance by covered state agencies, which

Federal Respondents’ sovereign immunity renders unrecoverable. See App. 22a

(acknowledging the district court’s factual findings); see also Thunder Basin Coal Co.

v. Reich, 510 U.S. 200, 221 (1994) (Scalia, J., concurring in the judgment) (recognizing

the “irreparable harm of nonrecoverable compliance costs”).

The same injuries will be borne by Chamber members that maintain or that

are seeking federal contracts. The Chamber’s members include federal contractors

that do not wish to mandate the COVID vaccine for their employees but are

30
constrained to do so—and incur associated costs—as a direct and proximate result of

the Contractor Mandate. See App. 182a; Georgia, 46 F.4th at 1302 (acknowledging

findings that Contractor Mandate compliance costs by federal contractors “could

imperil the[ir] financial viability” and require them to “make decisions which would

significantly alter their ability to perform federal contract work,” adding that “[t]he

federal government does not push back on the existence of these costs. Nor has it

identified a way for the plaintiffs to recoup them”); Louisiana, 55 F.4th at 1035 (“[I]t

is sufficient [for an irreparable injury] to show that even under the Government’s best

theory of the case, enough employees would likely leave as to constitute ‘more than

de minimis’ harm.”). The Ninth Circuit’s stay revives the same irremediable

adversities that the district court’s injunction was necessary to prevent.

b. The Contractor Mandate Infringes State Sovereignty by

Effectively Abrogating State Law and Unlawfully
Constraining State Lawmaking Authority

Vested in every State is an intrinsic right to “exercise sovereign power over

individuals and entities within” its jurisdiction, Alfred L. Snapp & Son, Inc. v. Puerto

Rico, ex rel. Barez, 458 U.S. 592, 601 (1982), which “involves the power to create and

enforce a legal code,” id.; see also Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct.

1461, 1475 (2018) (“The Constitution limited but did not abolish the sovereign powers

of the States, which retained ‘a residuary and inviolable sovereignty.’” (citation

omitted)). The Contactor Mandate’s reanimation exacts a sovereign injury that

manifests itself in two ways—one discrete and one more diffuse.

First, the Legislature has acted decisively to protect Arizonans against

government overreach imported under the auspices of public health by enacting

31
affirmative protections against governmental vaccine mandates. See Ariz. Rev. Stat.

§ 36-685 (“Any government entity may not require a resident of this state to receive

a vaccination for COVID-19 or any variant of COVID-19.”) (added by 2022 Ariz. Laws

ch. 180, § 1). “The State and its agencies are federal contractors subject to the

mandate.” App. 72a. By reimbuing the Contractor Mandate with legal force and

effect, the Ninth Circuit’s stay effectively abrogates a duly enacted statute that was

adopted through Arizona’s democratic processes in the exercise of its sovereign will.

The improper or ultra vires vitiation of a state law by any department of the federal

government inevitably inflicts an irreparable injury. See Abbott v. Perez, 138 S. Ct.

2305, 2324 n.17 (2018) (recognizing that “the inability to enforce its duly enacted

plans clearly inflicts irreparable harm on the State”); Maryland v. King, 567 U.S.

1301, 1303 (2012) (Roberts, C.J., in chambers) (“[A]ny time a State is enjoined by a

court from effectuating statutes enacted by representatives of its people, it suffers a

form of irreparable injury.” (citation omitted)); see also Bowen v. Public Agencies

Opposed to Social Sec. Entrapment, 477 U.S. 41, 50 n.17 (1986) (finding that “there

is no question concerning the State’s standing” where suit directly implicated its

“interest in the preservation of its own sovereignty, and a diminishment of that

sovereignty by the alleged interference in its employment relations with its public

employees” (citation omitted)).

In licensing the Contractor Mandate’s renewed application to private

contractors as well as the State and its agencies, the Ninth Circuit’s stay inflicts a

second, and more foundational, irreparable harm. Sovereign interests are not

32
impaired only by a direct conflict between a specific state statute or regulation and

an inconsistent federal diktat. Any “action that exceeds the National Government’s

enumerated powers undermines the sovereign interests of States.” Bond v. United

States, 564 U.S. 211, 225 (2011). Thus, even though Arizona has not yet adopted any

statutory protections against compulsory vaccination in the private sector, the

Contractor Mandate’s unlawful arrogation—untethered from any congressional

grant of authority—of a police power historically entrusted to the States, see generally

Biden v. Missouri, 142 S. Ct. 647, 658 (2022) (“Vaccine mandates also fall squarely

within a State’s police power, and, until now, only rarely have been a tool of the

Federal Government.” (citation omitted)), is itself a cognizable species of injury. For

that reason, two other Circuits to have considered the issue agreed that the

Contractor Mandate’s curtailment of the States’ police powers injures the States in

their sovereign capacities. See Kentucky, 23 F.4th at 602 (recognizing that States

“have sovereign interests and traditional prerogatives in regulating public health and

compulsory vaccination and . . . the contractor mandate invades these prerogatives”);

Louisiana, 55 F.4th at 1022 (affirming district court decision that “identified the

threat to the states’ sovereign interests as potentially irreparable harm”).

In short, “[t]he allocation of powers in our federal system preserves the

integrity, dignity, and residual sovereignty of the States. The federal balance is, in

part, an end in itself, to ensure that States function as political entities in their own

right.” Bond, 564 U.S. at 221. By unilaterally preempting a substantial and

33
entrenched facet of the States’ police power, the Contractor Mandate wrongfully

abridges Arizona’s sovereignty—a harm that eludes any monetary recompense.

c. The Legislature May Seek Redress of the Irreparable

Injuries a Stay Would Inflict on the State’s Sovereignty

The Legislature is the locus of sovereignty in Arizona government. Whitney v.

Bolin, 330 P.2d 1003, 1004 (Ariz. 1958) (“[T]he power of the legislature is plenary and

unless that power is limited by express or inferential provisions of the Constitution,

the legislature may enact any law which in its discretion it may desire.”). While the

Attorney General typically assumes the defense of the State’s interest in judicial

proceedings, see Ariz. Rev. Stat. § 41-193(A)(3), this partial and revocable legislative

declaration of responsibility by no means “suggest[s] that the State’s executive branch

holds a constitutional monopoly on representing [Arizona]’s practical interests in

court.” Berger v. N.C. State Conference of the NAACP, 142 S. Ct. 2191, 2202–03

(2022). To the contrary, a state’s “legitimate interest in the continued enforceability

of its own statutes,” Cameron v. EMW Women’s Surgical Ctr., 142 S. Ct. 1002, 1010

(2022), and other attributes of its sovereignty are not always lodged in a single actor.

Courts accordingly must “take into account the authority of a state . . . [to] empower[]

multiple officials to defend its sovereign interests in federal court.” Id. at 1011.

At least two provisions of Arizona law undergird the Legislature’s standing to

challenge Federal Respondents’ unlawful abridgement of the State’s sovereignty.

First, Ariz. Rev. Stat. § 12-1841—which bears strong parallels to the North Carolina

statute that the Court found “expressly authorized the legislative leaders to defend

the State's practical interests in litigation,” Berger, 142 S. Ct. at 2202 (citing N.C.

34
Gen. Stat. Ann. § 1-72.2 (2021))—reserves for the Speaker of the Arizona House of

Representatives and the President of the Arizona Senate an “entitle[ment] to be

heard,” in any proceeding implicating the constitutionality of a state law, to include

“interven[ing] as a party” or “fil[ing] briefs in the matter.” Ariz. Rev. Stat. § 12-

1841(A), (D). “The objective of this requirement is to protect the state and its citizens

should the parties be indifferent to the outcome of the litigation.” Ethington v.

Wright, 189 P.2d 209, 213 (Ariz. 1948). The Legislature’s extension of intervention

rights to the Speaker and Senate President, see 2010 Ariz. Laws. ch. 105, recognized

both the diffusion of the State’s interests across both the legislative and executive

departments, and the possibility that the Attorney General may be unwilling or

unable to effectuate them fully. Because one of the issues in this case is whether the

Contractor Mandate, by means of the Supremacy Clause, “implicat[es] the

constitutionality” of Arizona’s prohibition on governmental COVID-19 vaccination

mandates, see App. 152a (purporting to preempt state laws); Ariz. Rev. Stat. 36-685,

there is an ample state law predicate for the Legislature’s standing in this case.

Second, the Arizona Constitution incorporates explicit protections of state

sovereignty against unconstitutional federal abrogation. See ARIZ. CONST. art. II, §

3. The provision affirms that the state may “pursu[e] any . . . available legal remedy”

to counter perceived unconstitutional federal overreach, and contemplates that “the

people or their representatives [may] exercise” authority to that end. Id. This

intended bulwark against unlawful federal encroachment is, by its terms, not the

exclusive province of the Attorney General, but rather is vested collectively in the

35
elected branches of Arizona state government. While this dispute comes to the Court

presenting affirmative claims by a State against the federal government (as

distinguished from a suit against the State by a private party), the principle “that

different branches of government may seek to vindicate different and valuable state

interests,” Berger, 142 S. Ct. at 2205, endures, irrespective of whether those interests

assume an offensive or defensive posture in any given proceeding.

In sum, the Contractor Mandate’s irreparable corrosion of the State’s sovereign

police powers and infliction of unrecoverable compliance costs easily qualified as

irreparable harms sufficient to sustain injunctive relief. See App. 86a–87a. In

entrusting the Legislature with the defense of state laws (such as Ariz. Rev. Stat. §

36-685) whose continued validity or enforceability is implicated in these proceedings,

see Ariz. Rev. Stat. § 12-1841, and in empowering legislative leaders to affirmatively

contest federal incursions into the State’s constitutional domain, see ARIZ. CONST. art.

II, § 3, Arizona has “authorized [its] legislative leaders to defend the State’s practical

interests in litigation of this sort.” Berger, 142 S. Ct. at 2202.

d. Federal Respondents’ Temporary Non-Enforcement of the

Contractor Mandate Does Not Remediate the Injuries
Inflicted by the Stay

Federal Respondents can neither moot this dispute nor allay the Applicants’

injuries with ad hoc and qualified assurances of temporary non-enforcement. The

Contractor Mandate has not been repealed or rescinded, nor have Federal

Respondents even affirmed an intention to do so. Rather, as judicial repudiations of

the Contractor Mandate began to mount, the SFWTF announced on October 14, 2022

that “to ensure compliance with an applicable preliminary nationwide injunction,

36
Federal agencies [would] take no action to enforce contract clause implementing

requirements of Executive Order 14042 absent further written notice.” SFWTF,

Federal Contractors: Update on Executive Order 14042 (Oct. 14, 2022),

https://www.saferfederalworkforce.gov/contractors/ (last accessed Apr. 16, 2023).

Following the Eleventh Circuit’s narrowing of the referenced nationwide injunction,

see Georgia, 46 F.4th at 1308, the SFWTF issued on October 19, 2022 an “update,”

which opined that “agencies should not (1) take any steps to require covered

contractors and subcontractors to come into compliance with previously issued Task

Force guidance; or (2) enforce any contract clauses implementing Executive Order

14042.” SFWTF, Federal Contractors: Update on Executive Order 14042 (Oct. 14,

2022), https://www.saferfederalworkforce.gov/contractors/ (last accessed Apr. 16,

2023). Accompanying OMB “guidance” reiterated this advice to agencies and

promised future “guidance to agencies on their timing and considerations for

agencies’ provision of written notice to contractors regarding enforcement of contract

clauses implementing requirements of Executive Order 14042 and agencies’ addition

of such clauses to contracts and solicitations, except as barred by any applicable

injunctions.” See OMB, Interim Guidance for Agencies on Enforcement and Clause

Compliance (Oct. 19, 2022), available at https://tinyurl.com/sbhn2vcc.

It is axiomatic that “a defendant cannot automatically moot a case simply by

ending its unlawful conduct once sued.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013); see also West Virginia, 142 S. Ct. 2607 (government’s representation that it

had “no intention of enforcing” challenged action did not moot case). To the extent

37
Federal Respondents posit that the irreparable harms that precipitated the district

court’s injunction are now extinguished, they assume the “heavy burden” of

establishing that it is “absolutely clear” that the Contractor Mandate’s renewed

enforcement “could not reasonably be expected to recur.” Friends of the Earth, Inc. v.

Laidlaw Env’tl Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (cleaned up).

The professedly temporary and fluid nature of Federal Respondents’ purported

posture of non-enforcement belies any such argument. Federal Respondents cannot

obviate the injuries that emanate from the Contractor Mandate merely by consigning

it to a nebulous and indeterminate regulatory purgatory—dormant but subject to

revival at any moment by a bureaucratic labyrinth as opaque and recondite as the

one that birthed it. See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63,

68 (2020) (rejecting mootness argument where Governor had “regularly change[d]”

the relevant regulatory classifications “without prior notice”). More fundamentally,

the SFWTF and OMB’s mutating “guidance” notwithstanding, the ultimate fount of

the Contractor Mandate—i.e., EO 14,042—remains in force and unchanged. In such

circumstances, “injunctive relief is still called for because the applicants remain

under a constant threat,” id., that the Contractor Mandate’s enforcement will be

reinstated at any time. See also Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021)

(emphasizing that “litigants otherwise entitled to emergency injunctive relief remain

entitled to such relief where the applicants ‘remain under constant threat’ that

government officials will use their power to reinstate the challenged restrictions”).

38
 Federal Respondents cannot evade this Court’s review of a live dispute simply

by kicking up a cloud of equivocation and tergiversation. The Contractor Mandate

continues to hang as a looming regulatory scythe, and “[t]here is no reason why [the

Applicants] should bear the risk of suffering further irreparable harm,” Roman

Catholic Diocese, 141 S. Ct. at 68–69, when it abruptly drops.

2. Vacatur of the Stay Will Not Harm the Government and Will Serve
the Public Interest

As the beneficiaries of a stay, it is incumbent upon Federal Respondents to

demonstrate “irreparable harm” to either themselves or the public interest that is

“probable, not merely possible” if the district court’s injunction remains in force. Doe

#1 v. Trump, 957 F.3d 1050, 1059 (9th Cir. 2020) (citing Nken, 556 U.S. at 434)).

Federal Respondents’ suspension of the Contractor Mandate’s enforcement—

however temporary and tenuous it may be—discredits any assertion that a vacatur

of the stay would enkindle substantial and widespread hazards to public health. See

Roman Catholic Diocese, 141 S. Ct. at 68 (pointing out that “the State has not shown

that public health would be imperiled” by an injunction against the enforcement of

challenged pandemic-related restriction). The President’s recent approval of a

congressional resolution officially ending the national emergency declared in March

2020 likewise underscores that the Contractor Mandate is not necessary to forestall

immediate and imminent public harm. See Relating to a National Emergency

Declared by the President on March 13, 2020, H.J. Res. 7, 118th Cong. (2023).

Indeed, Federal Respondents’ contention that the Contractor Mandate

encapsulates a public health imperative was not persuasive even when risks relating

39
to transmission or infection were more acute than they are now. See App. 87a (noting

that “an injunction here would do them little harm, since they retain the right to

recommend vaccination among contractors and to seek contractual remedies in the

event a contractor fails to adequately perform on a contract”); Louisiana, 55 F.4th at

1035 (“[A]ny abstract ‘harm’ a stay [of the Contractor Mandate] might cause the

Agency pales in comparison and importance to the harms the absence of a stay

threatens to cause countless individuals and companies.”).

Finally, there is “no public interest in the perpetuation of unlawful agency

action.” Shawnee Tribe v. Mnuchin, 984 F.3d 94, 102 (D.C. Cir. 2021). The

Contractor Mandate is an ultra vires assertion of executive power that is untethered

from the statute it purports to implement. Whatever legitimate and weighty

objectives might underlie it, they can never “permit agencies to act unlawfully even

in pursuit of desirable ends.” Alabama Realtors, 141 S. Ct. at 2490.

CONCLUSION

Applicants respectfully request that this Court vacate the court of appeals’

April 5, 2023 order staying the judgment of the district court. In the alternative, this

Court may treat this application as a petition for writ of certiorari and set the case

for expedited plenary review.

40
Dated: April 25, 2023 Respectfully submitted,

/s/ Kory Langhofer

KORY LANGHOFER
Counsel of Record
THOMAS BASILE
STATECRAFT PLLC
649 North Fourth Avenue, Suite B
Phoenix, Arizona 85003
Phone: (602) 382-4078
[email protected]

Counsel for Applicants

41
 EMERGENCY APPLICATION
APPENDIX TABLE OF CONTENTS

Lower Court Orders and Opinions

APPENDIX A: Opinion of the United States Court of Appeals

for the Ninth Circuit (April 19, 2023) ................................................................ 1a

APPENDIX B: Sua Sponte Stay Order of the United States Court of

Appeals for the Ninth Circuit (April 5, 2023) ................................................. 51a

APPENDIX C: Intervention Order of the United States Court

of Appeals for the Ninth Circuit (February 28, 2023) ................................... 53a

APPENDIX D: Opinion of the United States District Court

for the District of Arizona (January 27, 2022) ................................................ 55a

APPENDIX E: Permanent Injunction of the United States

District Court for the District of Arizona (February 20, 2022) ................... 92a

APPENDIX F: Judgment of the United States District

Court for the District of Arizona (February 20, 2022) ................................... 95a

Constitutional, Statutory, and Regulatory Provisions

APPENDIX G: U.S. Const. art. I, § 1.............................................................. 98a

APPENDIX H: U.S. Const. art. VI, cl. 2 ........................................................ 99a

APPENDIX I: 3 U.S.C. § 301 ........................................................................... 100a

APPENDIX J: 3 U.S.C. § 302 .......................................................................... 101a

APPENDIX K: 40 U.S.C. § 101 ....................................................................... 102a

APPENDIX L: 40 U.S.C. § 121 ........................................................................ 103a

APPENDIX M: 41 U.S.C. § 1303 ..................................................................... 106a

APPENDIX N: Protecting the Federal Workforce and Requiring Mask-Wearing,

Exec. Order No. 13,991, 86 Fed. Reg. 7,045, 7,046 (Jan. 20, 2021) .................. 109a

APPENDIX O: Exec. Order No. 14,042, Ensuring Adequate COVID Safety

Protocols for Federal Contractors, 86 Fed. Reg. 50,985 (Sept. 9, 2021) ........... 113a
 EMERGENCY APPLICATION
APPENDIX TABLE OF CONTENTS (Cont.)

APPENDIX P: Determination of the Promotion of Economy and Efficiency

in Federal Contracting Pursuant to Executive Order No. 14042, 86 Fed. Reg.
53,691 (Sept. 28, 2021) ....................................................................................... 117a

APPENDIX Q: Determination of the Acting OMB Director Regarding the

Revised Safer Federal Workforce Task Force Guidance for Federal Contractors
and the Revised Economy & Efficiency Analysis, 86 Fed. Reg. 63,418 (Nov. 16,
2021).................................................................................................................... 119a

Excerpts of Record

APPENDIX R: Remarks of President Biden Fighting the COVID-19

Pandemic (Sept. 9, 2021).................................................................................... 127a

APPENDIX S: Safer Federal Workforce Task Force, COVID-19

Workplace Safety: Guidance for Federal Contractors and Subcontractors (Sept.
24, 2021).............................................................................................................. 140a

APPENDIX T: Safer Federal Workforce Task Force, FAQs ............................ 154a

APPENDIX U: FAR Council, Memorandum for Chief Acquisition Officers,

Senior Procurement Executives, Defense Acquisition Regulations Council,
Civilian Agency Acquisition Council (Sept. 30, 2021) ....................................... 174a

APPENDIX V: Letter from the Arizona Attorney General’s Office to the

Clerk of the United States Court of Appeals for the Ninth Circuit (Feb. 14,
2023).................................................................................................................... 179a

Other Document

APPENDIX W: Declaration of Tom Ducey (April 21, 2023) ............................ 182a

Case: 22-15518, 04/19/2023, ID: 12698270, DktEntry: 72-1, Page 1 of 50

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN K. MAYES, Attorney No. 22-15518

General; STATE OF ARIZONA; AL
REBLE; PHOENIX LAW D.C. No.
ENFORCEMENT ASSOCIATION; 2:21-cv-01568-
UNITED PHOENIX FIREFIGHTERS MTL
ASSOCIATION LOCAL 493,

Plaintiffs-Appellees, OPINION

v.

JOSEPH R. BIDEN, in his official

capacity as President of the United
States; ALEJANDRO N.
MAYORKAS, in his official capacity
as Secretary of Homeland Security;
U.S. DEPARTMENT OF
HOMELAND SECURITY; TROY A.
MILLER, in his official capacity as
Senior Official Performing the Duties
of the Commissioner of US Customs
and Border Protection; TAE
JOHNSON, in his official capacity as
Senior Official Performing the Duties
of Director of US Immigration and
Customs Enforcement; UR
MENDOZA JADDOU, in her official
capacity as Director of US Citizenship

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2 MAYES V. BIDEN

and Immigration Services; OFFICE

OF PERSONNEL MANAGEMENT;
KIRAN AHUJA, in her official
capacity as director of the Office of
Personnel Management and as co-
chair of the Safer Federal Workforce
Task Force; UNITED STATES
GENERAL SERVICES
ADMINISTRATION; SHALANDA
YOUNG, in her official capacity as
Acting Director of the Office of
Management and Budget and as a
member of the Safer Federal
Workforce Task Force; SAFER
FEDERAL WORKFORCE TASK
FORCE; JEFFREY ZIENTS, in his
official capacity as co-chair of the
Safer Federal Workforce Task Force
and COVID-19 Response Coordinator;
L. ERIC PATTERSON, in his official
capacity as Director of the Federal
Protective Service and member of the
SFWTF; JAMES M. MURRAY, in his
official capacity as Director of the
United States Secret Service and
member of the SFWTF; DEANNE
CRISWELL, in her official capacity as
Director of the Federal Emergency
Management Agency and member of
the SFWTF; ROCHELLE
WALENSKY, in her official capacity
as Director of the Centers for Disease
Control and Prevention and member of

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MAYES V. BIDEN 3

the SFWTF; CENTERS FOR

DISEASE CONTROL AND
PREVENTION; FEDERAL
ACQUISITION REGULATORY
COUNCIL; MATHEW C. BLUM, in
his official capacity as Chair of the
Federal Acquisition Regulatory
Council and Acting Administrator of
the Office of Federal Procurement
Policy, Office of Management and
Budget; LESLEY A. FIELD, in her
official capacity as a member of the
Federal Acquisition Regulatory
Council and Acting Administrator for
Federal Procurement at the Office of
Federal Procurement Policy, Office of
Management and Budget; KARLA S.
JACKSON, in her official capacity as
a member of the Federal Acquisition
Regulatory Council and Assistant
Administrator for Procurement at the
National Aeronautics and Space
Administration; JEFFREY A. KOSES,
in his official capacity as a member of
the Federal Acquisition Regulatory
Council and Senior Procurement
Executive at the General Services
Administration; JOHN M.
TENAGLIA, in his official capacity as
a member of the Federal Acquisition
Regulatory Council and Principal
Director of Defense Pricing and
Contracting at the Department of

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4 MAYES V. BIDEN

Defense; UNITED STATES OF

AMERICA; UNITED STATES
DEPARTMENT OF JUSTICE;
MERRICK B. GARLAND, Attorney
General, in his official capacity as
Attorney General of the United States,

Defendants-Appellants,
______________________________

ARIZONA CHAMBER OF
COMMERCE & INDUSTRY;
FIFTY-SIXTH ARIZONA
LEGISLATURE,

Intervenors.

Appeal from the United States District Court

for the District of Arizona
Michael T. Liburdi, District Judge, Presiding

Argued and Submitted March 7, 2023

Las Vegas, Nevada

Filed April 19, 2023

Before: Richard R. Clifton, Mark J. Bennett, and Roopali

H. Desai, Circuit Judges.

Opinion by Judge Bennett

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MAYES V. BIDEN 5

SUMMARY *

Injunction

The panel reversed the district court’s order granting a

permanent injunction and dissolved the injunction, which
had enjoined the President’s “Contractor Mandate”
Executive Order requiring federal contractors who worked
on or in connection with federal government projects to be
vaccinated against COVID-19.
President Biden issued Executive Order 13,991,
establishing the Safer Federal Workforce Task Force that
was charged with providing ongoing guidance concerning
the operation of the Federal Government during the COVID-
19 pandemic. The President invoked his authority under the
Federal Property and Administrative Services Act of 1949
(“Procurement Act”) to direct federal agencies to include in
certain contracts a clause requiring covered contractor
employees to follow COVID-19 safety protocols, including
vaccination requirements, in order for employees to be
eligible to work on federal government projects. Plaintiffs
sued to enjoin the vaccination mandate. This lawsuit
revolves around four documents that comprise the
Contractor Mandate: the Executive Order, the Task Force
Guidance, the Office of Management and Budget
Determination, and the Federal Acquisition Regulatory
Council Guidance.
The district court granted a permanent injunction against
the Contractor Mandate, effective in any contract that either

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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6 MAYES V. BIDEN

involved a party domiciled or headquartered in Arizona

and/or was performed “principally” in Arizona.
The panel considered the first factor of the permanent
injunction inquiry: actual success on the merits. First, the
panel held the Major Questions Doctrine—which requires
that Congress speak clearly if it wishes to assign to an
agency decisions of vast economic and political
significance—did not apply. There is no relevant agency
action here, and the doctrine does not apply to actions by the
President. Second, the panel held that even if the Major
Questions Doctrine applied, it would not bar the Contractor
Mandate because the Mandate is not a transformative
expansion of the President’s authority under the
Procurement Act. The Contractor Mandate is not an
exercise of regulatory authority at all, but of proprietary
authority. It is not a “transformative expansion” of any
authority, regulatory or proprietary, to require federal
contractors—amid an unprecedented global pandemic—to
take vaccination-related steps that promote efficiency and
economy by reducing absenteeism, project delays, and cost
overruns. Third, the panel held that the Contractor Mandate
fell within the President’s authority under the Procurement
Act. The panel held that the President was justified in
finding that prescribing vaccination-related steps contractors
must take in order to work on government contracts would
directly promote an economical and efficient “system” for
both procuring services and performing contracts. The
President was authorized by the Act to establish a procedure
by which taxpayer funds used to pay contractors who work
on federal government contracts are only used to pay those
contractors whose relevant employees are vaccinated against
COVID-19. Fourth, the panel held that the nondelegation
doctrine and state sovereignty concerns did not invalidate the

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MAYES V. BIDEN 7

Contractor Mandate. Finally, the panel held that the

Contractor Mandate satisfied the Office of Federal
Procurement Policy Act’s procedural requirements. The
panel held that Arizona’s claims under the Administrative
Procedure Act also failed.
Because Arizona failed to satisfy the first prong of the
permanent injunction inquiry—actual success on the
merits—the panel held that it need not analyze whether it had
satisfied the remaining prongs. The panel reversed the
district court’s grant of a permanent injunction and dissolved
the injunction.

COUNSEL

David L. Peters (argued), Anna O. Mohan, and Mark B.

Stern, Appellate Staff Attorneys; Joshua Revesz, Counsel,
Office of the Assistant Attorney General; Brian M. Boynton,
Principal Deputy Assistant Attorney General; United States
Department of Justice; Washington, D.C.; Samuel F.
Callahan, Associate Deputy General Counsel; Shraddha A.
Upadhyaya, Associate General Counsel; Arpit K. Garg,
Deputy General Counsel; Daniel F Jacobson, General
Counsel; Office of Management and Budget; Washington,
D.C.; for Defendants-Appellants.
Alexander W. Samuels (argued), Deputy Attorney General;
James K. Rogers, Senior Litigation Counsel; Drew C.
Ensign, Deputy Solicitor General; Joseph A. Kanefield,
Chief Deputy & Chief of Staff; Mark Brnovich, Attorney
General of Arizona; Office of the Arizona Attorney General;
Phoenix, Arizona; Hannah H. Porter and Kevin E. O’Malley,
Gallagher and Kennedy, Phoenix, Arizona; for Plaintiffs-
Appellees Mark Brnovich and State of Arizona.

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8 MAYES V. BIDEN

Dennis I. Wilenchifk, Wilenchik & Bartness PC, Phoenix,

Arizona, for Plaintiff-Appellee Al Reble.
Michael Napier, Napier Abdo Coury & Baillie PC, Phoenix,
Arizona, for Plaintiff-Appellee Phoenix Law Enforcement
Association and United Phoenix Firefighters Association
Local 493.
Michael G. Bailey (argued), Tully Bailey LLP, Phoenix,
Arizona, for Intervenor Arizona Chamber of Commerce &
Industry.
Kory Langhofer (argued) and Thomas J. Basile, Statecraft
PLLC, Phoenix, Arizona, for Intervenor Fifty-Sixth Arizona
Legislature.
Natalie P. Christmas, Assistant Attorney General of Legal
Policy; James H. Percival, Deputy Attorney General of
Legal Policy; Henry C. Whitaker, Solicitor General; Ashley
Moody, Attorney General of Florida; Office of the Florida
Attorney General; Tallahassee, Florida; for Amici Curiae the
States of Florida, Alabama, Alaska, Arkansas, Georgia,
Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Montana, Nebraska, New Hampshire,
North Dakota, Ohio, Oklahoma, South Carolina, South
Dakota, Tennessee, Texas, Utah, Virginia, and West
Virginia.
Daryl Joseffer and Stephanie A. Maloney, United States
Chamber Litigation Center, Washington, D.C.; Steven P.
Lehotsky, Gabriela Gonzalez-Araiza, and Adam Steene,
Lehotsky Keller LLP, Washington, D.C.; Matthew H.
Frederick, Lehotsky Keller LLP, Austin, Texas; for Amicus
Curiae the Chamber of Commerce of the United States of
America.

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MAYES V. BIDEN 9

OPINION

BENNETT, Circuit Judge:

The purpose of the Federal Property and Administrative

Services Act of 1949 (“Procurement Act”), 40 U.S.C. § 101
et seq., “is to provide the Federal Government with an
economical and efficient system for . . . [p]rocuring and
supplying property and nonpersonal services, and . . .
contracting,” id. § 101(1). “The President may prescribe
policies and directives that the President considers necessary
to carry out” the Procurement Act, so long as they are
“consistent” with the Act. Id. § 121(a). President Biden was
justified in concluding that requiring federal contractors who
worked on or in connection with federal government projects
to be vaccinated against COVID-19 would promote
economy and efficiency in federal contracting. Because the
district court erred in enjoining the President’s “Contractor
Mandate” Executive Order, we dissolve the injunction
entered by the district court.
In the midst of the COVID-19 pandemic—and faced
with a rising death toll and lost work hours during a
recession—the President invoked his authority under the
Procurement Act. He used that authority to direct federal
agencies to include in certain contracts a clause requiring
covered contractor employees to follow COVID-19 safety
protocols, including vaccination requirements, for
employees to be eligible to work on federal government
projects. The President’s delegated executive officer found
that requiring vaccination against COVID-19 would reduce
absenteeism, lower cost overruns, and prevent delays on
government projects. Determination of the Acting OMB
Director Regarding the Revised Safer Federal Workforce

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10 MAYES V. BIDEN

Task Force Guidance for Federal Contractors and the

Revised Economy & Efficiency Analysis, 86 Fed. Reg.
63,418, 63,418 (Nov. 16, 2021) (“OMB Determination”).
Plaintiffs sued to enjoin the vaccination requirement.
The district court granted a permanent injunction against the
Contractor Mandate, effective in any contract that either
involved a party domiciled or headquartered in Arizona
and/or was performed “principally” in Arizona. The federal
government appealed. We stayed the district court’s
injunction pending resolution of this appeal. Dkt. No. 70.
We have jurisdiction under 28 U.S.C. §§ 1291 and
1292(a)(1). We REVERSE the district court’s grant of a
permanent injunction and dissolve the injunction.
I. BACKGROUND
A. Statutory Framework
1. The Procurement Act
This dispute involves two provisions of the Procurement
Act:

§ 101. Purpose
The purpose of this subtitle is to provide the
Federal Government with an economical and
efficient system for the following activities:
(1) Procuring and supplying property and
nonpersonal services, and performing related
functions including contracting . . . .

40 U.S.C. § 101.

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MAYES V. BIDEN 11

§ 121. Administrative
(a) Policies prescribed by the President. –
The President may prescribe policies and
directives that the President considers
necessary to carry out this subtitle. The
policies must be consistent with this subtitle.
Id. § 121.
2. The Procurement Policy Act
The Office of Federal Procurement Policy Act
(“Procurement Policy Act”), 41 U.S.C. § 1707, 1 states that a
“procurement policy, regulation, procedure, or form . . . may
not take effect until 60 days after it is published for public
comment in the Federal Register” if it “relates to the
expenditure of appropriated funds” and either “has a
significant effect beyond the internal operating procedures
of the agency issuing the policy, regulation, procedure, or
form” or “has a significant cost or administrative impact on
contractors or offerors.” Id. § 1707(a)(1).
The Procurement Policy Act’s requirements apply to
specific “executive agenc[ies].” Id. § 1707(c)(1). But “[i]f
urgent and compelling circumstances make compliance with
the [notice and comment] requirements impracticable,” the
officer authorized to issue the procurement policy may
waive them. Id. § 1707(d).

1
In addition to the substantive challenges to the Contractor Mandate that
Arizona asserted related to the Procurement Act, Arizona also asserted
procedural challenges under the Procurement Policy Act.

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12 MAYES V. BIDEN

B. Organizational Framework
On his first day in office, President Biden issued
Executive Order 13,991, establishing the Safer Federal
Workforce Task Force (“Task Force”). Protecting the
Federal Workforce and Requiring Mask-Wearing, 86 Fed.
Reg. 7,045, 7,046 (Jan. 25, 2021). Executive Order 13,991
charged the Task Force with “provid[ing] ongoing guidance
to heads of agencies on the operation of the Federal
Government, the safety of its employees, and the continuity
of Government functions during the COVID-19 pandemic.”
Id.
The Office of Federal Procurement Policy is part of the
Office of Management and Budget (“OMB”). 41 U.S.C.
§ 1101(a). Congress has authorized it to “provide overall
direction of Government-wide procurement policies . . . and
promote economy, efficiency, and effectiveness in the
procurement of property and services.” Id. § 1101(b).
Congress also created the Federal Acquisition
Regulatory Council (“FAR Council”). 41 U.S.C. § 1302(a).
The Administrator of the Office of Federal Procurement
Policy chairs the FAR Council and provides guidance on
how agencies should obtain full and open competition in
contracting. See id. §§ 1121, 1122(a)(1)–(2), 1302(b). The
FAR Council promulgates the Federal Acquisition
Regulation (“FAR”), id. § 1303, which contains standard
provisions that are included in certain government contracts,
see 48 C.F.R. §§ 1.000–53.300.

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MAYES V. BIDEN 13

C. Factual Background
There have been over 760 million confirmed cases of
COVID-19 worldwide, 2 and more than 100 million such
cases in the United States. 3 The disease has caused over 6.8
million deaths around the world. 4 More than 1.1 million of
those deaths have been in the United States. 5 Since January
2020, a state of public health emergency has been in effect
in the United States because of the disease. 6
The COVID-19 pandemic has also had profound
economic effects. The pandemic triggered the greatest
worldwide recession since the end of World War II. 7 The
United States Census Bureau concluded that the pandemic’s
initial impact on the U.S. economy was “more widespread

2
World Health Organization, Coronavirus (COVID-19) Dashboard,
https://covid19.who.int (last visited Apr. 11, 2023) (hereinafter “Global
WHO Dashboard”).
3
World Health Organization, Coronavirus (COVID-19) Dashboard:
United States of America, https://covid19.who.int/region/amro/country/
us (last visited Apr. 11, 2023) (hereinafter “United States WHO
Dashboard”).
4
Global WHO Dashboard, supra note 2.
5
United States WHO Dashboard, supra note 3.
6
The state of emergency will expire at the end of day on May 11, 2023.
See Exec. Off. of the President, Statement of Administration Policy Re:
H.R. 382 & H.J. Res. 7 (Jan. 30, 2023).
7
Eduardo Levy Yeyati & Federico Filippini, Social and Economic
Impact of COVID-19 (Brookings Inst., Brookings Global Working Paper
#158, 2021), at 1, https://www.brookings.edu/research/social-and-
economic-impact-of-covid-19/.

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14 MAYES V. BIDEN

than on mortality.” 8 It “caused the biggest blow to the U.S.

economy since the Great Depression.” 9 Just a year into the
pandemic, the cost of lost work hours in the United States
associated with the pandemic had exceeded $100 billion.10
In response, and once COVID-19 vaccinations were
widely available and deemed safe and effective, the
President issued an executive order requiring federal
contractors’ employees to get vaccinated if they work on or
in connection with federal government contracts or work in
the same workplace as such employees. This lawsuit
revolves around four documents that together comprise the
“Contractor Mandate”: (1) the Executive Order, (2) the Task
Force Guidance, (3) the OMB Determination, and (4) the
FAR Council Guidance.
1. The Executive Order
In September 2021, President Biden issued Executive
Order 14,042, Ensuring Adequate COVID Safety Protocols
for Federal Contractors. 86 Fed. Reg. 50,985 (Sept. 14,
2021) (“EO”). The EO was issued pursuant to the
Procurement Act to “promote[] economy and efficiency in

8
U.S. Census Bureau, Pandemic Impact on Mortality and Economy
Varies Across Age Groups and Geographies (Mar. 8, 2021),
https://www.census.gov/library/stories/2021/03/initial-impact-covid-
19-on-united-states-economy-more-widespread-than-on-mortality.html.
9
Lucia Mutikani, What to Know About the Report on America’s COVID-
Hit GDP, World Economic Forum (July 31, 2020),
https://www.weforum.org/agenda/2020/07/covid-19-coronavirus-usa-
united-states-econamy-gdp-decline/.
10
Abay Asfaw, Cost of Lost Work Hours Associated with the COVID-19
3DQGHPLFʊ8QLWHG6WDWHV0DUFK7KURXJK)HEUXDU\, 65 AM.
J. INDUS. MED. 20, 27 (2022).

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MAYES V. BIDEN 15

Federal procurement by ensuring that the parties that

contract with the Federal Government provide adequate
COVID-19 safeguards to their workers performing on or in
connection with a Federal Government contract or contract-
like instrument.” Id. at 50,985.
The EO directs executive agencies subject to the
Procurement Act to include, in qualifying federal
contracts, 11 a clause requiring contractors to comply with
guidance that would subsequently be issued by the Task
Force. Id. 12 The Task Force was directed to issue its
guidance by September 24, 2021. Id. The EO states that,
before the deadline, the OMB Director “shall, as an exercise
of the delegation of my authority under the [Procurement]
Act, see 3 U.S.C. § 301, determine whether such Guidance
will promote economy and efficiency in Federal contracting
if adhered to by Government contractors.” Id. at 50,985–86.
The EO further instructs the FAR Council to amend the
FAR to include the same COVID-19 safety clause. Id. at
50,986. It states that “agencies are strongly encouraged, to
the extent permitted by law,” to seek to modify existing
contracts to include the COVID-19 safety clause. Id. at
50,987.
2. The Task Force Guidance
On September 24, 2021, in accordance with the
President’s deadline, the Task Force issued its initial

11
We use the term “contracts” to also include the “contract-like
instruments” referenced in the EO. Accord Georgia v. President of the
86, 46 F.4th 1283, 1290 n.1 (11th Cir. 2022).
12
The EO extends to subcontractors “at any tier.” 86 Fed. Reg. at
50,985. Hence, we use the term “contractors” to include both contractors
and subcontractors. Accord Georgia, 46 F.4th at 1290 n.1.

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16 MAYES V. BIDEN

guidance for federal contractor and subcontractor work

locations. The guidance was updated on November 10,
2021, and states, in relevant part:

Covered contractors must ensure that all

covered contractor employees are fully
vaccinated for COVID-19, unless the
employee is legally entitled to an
accommodation. Covered contractor
employees must be fully vaccinated no later
than January 18, 2022. After that date, all
covered contractor employees must be fully
vaccinated by the first day of the period of
performance on a newly awarded covered
contract, and by the first day of the period of
performance on an exercised option or
extended or renewed contract when the
clause has been incorporated into the covered
contract.

Safer Federal Workforce Task Force, COVID-19 Workplace

6DIHW\ *XLGDQFH IRU )HGHUDO &RQWUDFWRUV DQG
Subcontractors 5 (updated Nov. 10, 2021) (“Task Force
Guidance”). 13
The Task Force Guidance defines “covered contractor
employee” as “any full-time or part-time employee of a
covered contractor working on or in connection with a
covered contract or working at a covered contractor
workplace.” Id. at 3. The definition extends to employees

13
Available at https://www.saferfederalworkforce.gov/downloads/Guid
ance%20for%20Federal%20Contractors_Safer%20Federal%20Workfo
rce%20Task%20Force_20211110.pdf.

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MAYES V. BIDEN 17

who were “not themselves working on or in connection with

a covered contract.” Id. A “covered contractor workplace”
excludes a covered employee’s residence but encompasses
any location “controlled by a covered contractor at which
any employee of a covered contractor working on or in
connection with a covered contract is likely to be present
during the period of performance for a covered contract.” Id.
at 4. The Task Force Guidance includes exceptions for
otherwise-covered employees who are not vaccinated
against COVID-19 because of a disability (including
medical conditions) or a “sincerely held religious belief,
practice, or observance.” Id. at 5.
3. The OMB Determination
On November 10, 2021, the Acting OMB Director—
exercising power delegated under § 2(c) of the EO—
determined that the Task Force Guidance would promote
economy and efficiency in federal contracting. OMB
Determination, 86 Fed. Reg. at 63,418. The Acting OMB
Director reasoned that the Task Force Guidance would
“decrease the spread of COVID-19, which will in turn
decrease worker absence, save labor costs on net, and
thereby improve efficiency in Federal contracting.” Id. at
63,421. The OMB Determination also explained how
COVID-19 infections “impose[] significant costs on
contractors and the federal government,” and how
vaccination against COVID-19 “reduces net costs.” Id. at
63,421–22 (bolding and capitalization omitted). 14

14
The Acting OMB Director had previously issued a determination
reaching the same conclusion but with less detail. See generally 86 Fed.
Reg. 53,691 (Sep. 28, 2021). The November 10 OMB Determination
“rescind[ed] and supersede[d]” that prior determination. 86 Fed. Reg. at
63,418.

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18 MAYES V. BIDEN

4. The FAR Council Guidance

On September 30, 2021, the FAR Council—in accord
with § 3(a) of the EO—issued guidance on how to include
the COVID-19 safety clause in new contracts and
solicitations. See generally Memorandum from FAR
Council to Chief Acquisition Officers, et al., Issuance of
$JHQF\ 'HYLDWLRQV WR ,PSOHPHQW ([HFXWLYH 2UGHU 
(Sept. 30, 2021) (“FAR Council Guidance”). 15 The FAR
Council Guidance includes a sample clause that implements
the COVID-19 vaccination requirement. Id. at 4–5.
D. Proceedings Below
The State of Arizona and then-Attorney General Mark
Brnovich (“Arizona”) filed a lawsuit challenging the EO on
September 14, 2021—the date the EO was published. Once
the scope of the Contractor Mandate became clear, Arizona
amended its complaint to also challenge the Task Force
Guidance, OMB Determination, and FAR Council
Guidance, and filed a motion for a preliminary injunction. 16
All plaintiffs 17 filed a renewed motion for a preliminary
injunction with the Second Amended Complaint.
In January 2022, the district court issued an order
granting plaintiffs’ request for a preliminary injunction. See

15
Available at https://www.whitehouse.gov/wp-content/uploads/2021/0
9/FAR-Council-Guidance-on-Agency-Issuance-of-Deviations-to-Imple
ment-EO-14042.pdf.
16
A federal employee joined the amended complaint and motion for a
preliminary injunction.
17
Two Arizona public sector unions also joined Arizona and the federal
employee, see note 16 supra, as plaintiffs, asserting claims against
Defendant City of Phoenix, a federal contractor, for implementing the
Contractor Mandate.

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MAYES V. BIDEN 19

generally Brnovich v. Biden, 562 F. Supp. 3d 123 (D. Ariz.

2022). The district court first held that Arizona had standing
to challenge the Contractor Mandate because of its
proprietary interests (its contracts with the federal
government) and its sovereign interests (its own vaccination
policies). See id. at 142–47.
Next, the district court concluded that the Contractor
Mandate exceeded the President’s statutory authority under
the Procurement Act. See id. at 150–57. The court reasoned
that allowing the Mandate to go into effect would allow the
President to enact any policy, “no matter how tenuous[ly]”
connected to “the broad goals of achieving economy and
efficiency in federal procurement.” Id. at 152. The court
also concluded that the Contractor Mandate is a public health
measure, not a procurement policy. See id. at 153–54. It
held that the Procurement Act does not clearly authorize the
passage of such a measure, because “[w]e expect Congress
to speak clearly when authorizing [the executive branch] to
exercise powers of ‘vast economic and political
significance.’” Id. at 153 (second alteration in original)
(quoting Alabama Ass’n of Realtors v. Dep’t of Health &
Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam)).
The court then concluded that, as many Arizona agencies
are federal contractors, Arizona would suffer irreparable
harm from implementing the Contractor Mandate in the form
of (1) lost contracts, funds, and employees; (2) “compliance
and monitoring costs”; and (3) the purported conflict
between the Mandate and Arizona’s vaccination laws. Id. at
165. The court found that the balance of harms and public
interest weighed in favor of an injunction because “issuing
an injunction here would do [the government] little harm” as
the President could “recommend vaccination among
contractors” rather than mandating it. Id. at 166. The court

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20 MAYES V. BIDEN

rejected Arizona’s proposal for a nationwide injunction,

reasoning that “[e]quitable remedies should redress only the
injuries sustained by a particular plaintiff in a particular
case.” See id. at 166–67. 18
In February 2022, the district court issued a permanent
injunction barring the federal government from enforcing
the Contractor Mandate in any contract (i) “to which a
contracting party [was] domiciled in or headquartered in the
State of Arizona” or (ii) “to be performed principally in the
State of Arizona.” 19 The court also issued a final judgment

18
The court instructed Arizona to submit a proposed form of permanent
injunction. Id. at 167.
19
Until the district court’s permanent injunction, the Contractor Mandate
was not otherwise prohibited from implementation in Arizona. While
the Mandate had already been challenged in various courts across
different circuits, and several of those courts had enjoined the Mandate,
none of those injunctions covered contracting parties domiciled in or
headquartered in Arizona or contracts to be performed principally in
Arizona. See Louisiana v. Biden, 55 F.4th 1017, 1019, 1021 (5th Cir.
2022) (preliminary injunction covering Indiana, Louisiana, and
Mississippi); *HRUJLDY3UHVLGHQWRIWKH8QLWHG6WDWHV, 46 F.4th 1283,
1289, 1291 (11th Cir. 2022) (preliminary injunction covering Alabama,
Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia);
Commonwealth v. Biden, 57 F.4th 545, 557 (6th Cir. 2023) (limiting the
already-granted preliminary injunction to the named parties); Missouri
v. Biden, 576 F. Supp. 3d 622, 635 (E.D. Mo. 2021) (preliminary
injunction covering Alaska, Arkansas, Iowa, Missouri, Montana,
Nebraska, New Hampshire, North Dakota, South Dakota, and
Wyoming); State v. Nelson, 576 F. Supp. 3d 1017, 1040 (M.D. Fla. 2021)
(preliminary injunction covering Florida); but see Order, State v. Nelson,
8:21-cv-02524-SDM-TGW, ECF No. 48 (Nov. 9, 2022) (granting stay
pending appeal until March 31, 2023); Joint Status Report, ECF No. 49
(Mar. 29, 2023) (jointly proposing a continuation of the stay until May
25, 2023).

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MAYES V. BIDEN 21

pursuant to Federal Rule of Civil Procedure 54(b). 20 The

federal government appealed. 21
After oral argument, we stayed the district court’s
permanent injunction. Dkt. No. 70. We issued the stay
“pursuant to Fed. R. Civ. P. 62(g) and . . . until we issue[d]
an opinion on the merits of this appeal.” Id.
II. STANDARD OF REVIEW
We review the district court’s decision to grant a
permanent injunction for an abuse of discretion. Gonzalez
Y8.S. Immigr. & Customs Enf’t, 975 F.3d 788, 802 (9th Cir.
2020). We review determinations underlying the injunction
under three standards: “factual findings for clear error, legal
conclusions de novo, and the scope of the injunction for
abuse of discretion.” 8QLWHG6WDWHVY:DVKLQJWRQ, 853 F.3d
946, 962 (9th Cir. 2017).

20
The district court dismissed the plaintiffs’ claims challenging a
different Executive Order, which required COVID-19 vaccinations for
federal employees. The district court also dismissed (without prejudice)
the federal employee plaintiff’s claims because they were nonjusticiable,
and dismissed with prejudice the unions’ claims.
21
After briefing was completed in this case, the State of Arizona elected
a new Attorney General, Kristin Mayes. AG Mayes informed the court
that Arizona would no longer pursue certain arguments it had previously
made. However, Arizona would continue to defend the district court’s
core holding that the Contractor Mandate exceeded the defendants’
authority under the Procurement Act and that the equitable factors for
injunctive relief were met. Shortly thereafter, the Arizona Legislature,
the Speaker of the Arizona House of Representatives, the President of
the Arizona Senate, and the Arizona Chamber of Commerce & Industry
filed an emergency motion to intervene, seeking to continue to assert the
“abandoned” positions. We granted permissive intervention to the
Arizona Legislature and the Arizona Chamber of Commerce & Industry,
and the Intervenors participated in oral argument.

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22 MAYES V. BIDEN

A plaintiff seeking a permanent injunction must

establish: “(1) actual success on the merits; (2) that it has
suffered an irreparable injury; (3) that remedies available at
law are inadequate; (4) that the balance of hardships justify
a remedy in equity; and (5) that the public interest would not
be disserved by a permanent injunction.” ,QGHS7Uaining &
Apprenticeship Program v. Cal. Dep’t of Indus. Relations,
730 F.3d 1024, 1032 (9th Cir. 2013) (citing eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). When
the United States is a party, the balance of the equities and
public interest factors merge. Cf. Drakes Bay Oyster Co. v.
Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (noting the
merging of the two factors in a preliminary injunction
analysis).
III. DISCUSSION
On appeal, no party challenges the district court’s
finding that Arizona has Article III standing because of its
proprietary interests. The district court did not err—let alone
clearly err—in its factual finding that Arizona is “likely to
suffer direct injury as a result of the Contractor Mandate.”
Brnovich, 562 F. Supp. 3d at 143. To compete for and work
on federal government contracts, Arizona would have to
comply with the Contractor Mandate. We therefore move
on to whether Arizona has satisfied the first factor of the
permanent injunction inquiry: actual success on the merits.22

22
Because Arizona suffers a direct injury sufficient to confer standing,
we do not need to determine whether Arizona has also suffered injury to
its “sovereign” interests.

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MAYES V. BIDEN 23

A. The Major Questions Doctrine does not apply. 23

1. The doctrine does not apply to actions by the
President.
The Major Questions Doctrine has evolved over the
years, but in its current form, it requires “Congress to speak
clearly if it wishes to assign to an agency decisions of vast
‘economic and political significance.’” 8WLO $LU 5HJXO
Grp. v. EPA (“8$5*”), 573 U.S. 302, 324 (2014) (emphasis
added) (quoting )'$ Y %URZQ  :LOOLDPVRQ 7REDFFR
Corp., 529 U.S. 120, 160 (2000)).
But there is no relevant agency action here. Through the
Procurement Act, Congress delegated to the President the
authority to “prescribe policies and directives that the
President considers necessary” to “provide the Federal
Government with an economical and efficient system” for
“[p]rocuring . . . property and nonpersonal services, and
performing related functions including contracting.” 40
U.S.C. §§ 101, 121. The Major Questions Doctrine is
motivated by skepticism of agency interpretations that
“would bring about an enormous and transformative
expansion in . . . regulatory authority without clear
congressional authorization.” 8$5*, 573 U.S. at 324.
Those concerns are not implicated here as the President
“does not suffer from the same lack of political
accountability that agencies may, particularly when the

23
Arizona has purported to no longer pursue its Major Questions
Doctrine argument. The Intervenors continue to advance it. Regardless,
we independently determine whether the Major Questions Doctrine bars
the Contractor Mandate. See .DPHQ Y .HPSHU )LQ6HUYV ,QF, 500
U.S. 90, 99 (1991) (“[T]he court is not limited to the particular legal
theories advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing law.”).

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24 MAYES V. BIDEN

President acts on a question of economic and political

significance.” Georgia, 46 F.4th at 1313 (Anderson, J.,
concurring in part and dissenting in part) (emphasis added);
see also Louisiana, 55 F.4th at 1038 (Graves, J., dissenting)
(same).
Article II provides that “[t]he executive Power shall be
vested in a President,” who must “take Care that the Laws
be faithfully executed.” U.S. Const. art. II, §§ 1–3. “[T]he
Framers made the President the most democratic and
politically accountable official in Government.” Seila L.
//&Y&RQVXPHU)LQ3URW%XUHDX, 140 S. Ct. 2183, 2203
(2020). This accountability is ensured through regular
elections and “the solitary nature of the Executive Branch,
which provides ‘a single object for the jealousy and
watchfulness of the people.’” Id. (quoting The Federalist
No. 70, at 479 (A. Hamilton) (J. Cooke ed., 1961)). And, of
course, the President does not get a “blank check,” here or
otherwise. First, the President’s actions must be authorized
by and consistent with the Procurement Act. Second, the
Constitution always provides checks on all branches of
government. 24 If we were to determine that the Major

24
One of those checks requires the judicial branch to respect the
constitutional powers of the political branches. See 1HZ<RUNY8QLWHG
States, 505 U.S. 144, 182 (1992) (“The Constitution’s division of power
among the three branches is violated where one branch invades the
territory of another . . . .”); 0\HUV Y 8QLWed States, 272 U.S. 52, 116
(1926) (“[T]he reasonable construction of the Constitution must be that
the branches should be kept separate in all cases in which they were not
expressly blended . . . .”).
And allowing the President the necessary discretion to faithfully
execute our laws is a core principle of our government. )UHH(QWHU)XQG
v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 493 (2010) (“It is his
responsibility to take care that the laws be faithfully executed. The buck
stops with the President . . . .”).

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MAYES V. BIDEN 25

Questions Doctrine prevents the President from exercising

lawfully delegated power, we would be rewriting the
Constitution’s Faithfully Executed Clause in a way never
contemplated by the Framers. We decline to do so.
We recognize that three other circuits have concluded,
without expressly deciding, that the Major Questions
Doctrine applies to presidential action. But the Sixth Circuit
never squarely addressed its reasoning for treating
presidential action the same as agency action. See Kentucky
v. Biden, 23 F.4th 585, 606–08 (6th Cir. 2022) (relying on
circuit precedent involving the Occupational Safety &
Health Administration to equate Congressional requirements
for agency action with those for presidential action).
Similarly, the lead opinion from Eleventh Circuit—while
not labeling its analysis as pursuant to the Major Questions
Doctrine—discussed the “statutory parameters” of
contracting for agencies, but never discussed how or why
such constraints apply to the President. See Georgia, 46
F.4th at 1295–97. And in its opinion upholding a
preliminary injunction enjoining the Contractor Mandate,
the Fifth Circuit similarly held that “delegations to the
President and delegations to an agency should be treated the
same under the major questions doctrine” because the
Constitution “makes a single President responsible for the
actions of the Executive Branch.” Louisiana, 55 F.4th at
1031 n.40 (quoting Seila Law, 140 S. Ct. at 2203).
But that supposed equivalence does not account for how
the two are different, as recognized by the Supreme Court in
its treatment of agencies as different from the President. See,
e.g., )UHH(QWHU)XQG, 561 U.S. at 513–14 (holding that the
structure of an independent agency violated the Constitution
because the President, who is “accountable to the people for
executing the laws,” lacked the ability to hold the

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26 MAYES V. BIDEN

independent agency accountable). Far from assuming the

President is limited in the performance of his duties, the
Supreme Court instead requires an “express statement” to
find that Congress meant to subject the President’s actions
to additional scrutiny. Cf. )UDQNOLQY0DVVDFKXVHWWV, 505
U.S. 788, 800–01 (1992) (declining to consider the President
an “agency” under the APA because Congress did not
explicitly subject his actions to review under the statute).
It is perhaps for these reasons that, before our sister
circuits enjoined the Contractor Mandate, the Major
Questions Doctrine had “never been applied to the exercise
of power by the President.” Georgia, 46 F.4th at 1314
(Anderson, J., concurring in part and dissenting in part). We
find that the Doctrine does not apply to Presidential actions
and therefore does not bar the Contractor Mandate.
2. The Contractor Mandate is not a transformative
expansion of regulatory authority.
But even if the Major Questions Doctrine applied to
Presidential actions, it would still not preclude the
Contractor Mandate. Arizona initially argued that the
Doctrine applies here because the Contractor Mandate
satisfies what Arizona described as the Doctrine’s three
“independent triggers”: it (1) involves “a matter of great
‘political significance,’” (2) “seeks to regulate ‘a significant
portion of the American economy,” and (3) “‘intrud[es] into
an area that is the particular domain of state law,’” i.e.,
compulsory vaccination mandates. Arizona relied on Justice
Gorsuch’s concurrence in West Virginia in advancing this
position. W. Virginia v. EPA, 142 S. Ct. 2587, 2620–21
(2022) (Gorsuch, J., concurring).
However, the majority in West Virginia described the
effect of the EPA action in that case as “restructur[ing] the

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MAYES V. BIDEN 27

American energy market” because it “represent[ed] a

‘transformative expansion in [its] regulatory authority.’” Id.
at 2610 (quoting 8$5*, 573 U.S. at 324) (third alteration in
original) (emphasis added). We do not read that sentence to
mean that restructuring a sector or seeking to regulate a
significant portion of the American economy is sufficient by
itself to trigger the Major Questions Doctrine. But even if
that were sufficient, no part of the Contractor Mandate
represents an “enormous and transformative expansion in
. . . regulatory authority.” 8$5*, 573 U.S. at 324.
First, the Contractor Mandate is not an exercise of
regulatory authority at all, but of proprietary authority. The
district court concluded that the Mandate is a regulatory
public health measure, not a proprietary procurement policy.
See Brnovich, 562 F. Supp. 3d at 153–54. But nothing in the
Mandate constitutes a regulation. And its broad scope alone
does not make it regulatory. 25
It is true that “[a]n exercise of proprietary authority can
amount to a regulation if it seeks to regulate conduct
unrelated to the government’s proprietary interests.”
Georgia, 46 F.4th at 1314 n.3 (Anderson, J., concurring in

25
The Fifth Circuit relied on the broad scope of the Contractor Mandate
to conclude that it is regulatory. Louisiana, 55 F.4th at 1032–33 (stating
that “[t]here is little internal about a mandate which encompasses even
employees whose sole connection to a federal contract is a cubicle in the
same building as an employee working ‘in connection with’ a federal
contract” (internal quotation marks and footnote omitted)). But we
believe that is not the correct inquiry for whether conduct is regulatory.
Because the federal government contracts with approximately one-fifth
of the American workforce, almost any procurement policy will have
“external” effects. See U.S. Dep’t of Labor, History of Executive Order
, https://www.dol.gov/agencies/ofccp/about/executive-order-1124
6-history (last visited Apr. 11, 2023).

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28 MAYES V. BIDEN

part and dissenting in part) (emphasis added). But the

conduct that the Contractor Mandate seeks to regulate is
related to the government’s proprietary interest here:
efficient and economic procurement of services. The
Contractor Mandate requires vaccination of all contractor
employees who will work on or in connection with a covered
contract. It also imposes that requirement on employees in
the same workplace as a covered contractor employee,
presumably because of the way a contagious disease such as
COVID-19 spreads. Id. (Anderson, J., concurring in part and
dissenting in part); see also 6 %D\ 8QLWHG 3HQWHFRVWDO
Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts,
C.J., concurring in denial of application for injunctive relief)
(“Because people may be infected but asymptomatic, they
may unwittingly infect others [with COVID-19].”). To
some, the requirement may appear overinclusive; 26 to others,
it may seem underinclusive. But even if the Contractor
Mandate were overinclusive or underinclusive (or both), that
would not mean it is unrelated to efficient and economic
procurement of services.
The government, as it does every day, drew certain lines.
Perfection in line-drawing is not required. Cf. Dandridge v.
Williams, 397 U.S. 471, 484–85 (1970) (discussing how “the
concept of ‘overreaching’” has “no place” in analysis of a
“regulation in the social and economic field”). And
imperfect over- or under-inclusiveness does not mean that
the authority being exercised is regulatory rather than

26
The Contractor Mandate could cover employees who never interact
directly with an employee working on a federal contract. That possible
over-inclusiveness does not somehow render the Mandate legally infirm.

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MAYES V. BIDEN 29

proprietary. Nor does it give courts the authority to redraw

those lines.
Second, the Contractor Mandate is not a “transformative
expansion” of any authority—regulatory or proprietary.
Arizona, the district court, and other circuits raise alarms
about how the federal government has never sought, under
the authority of the Procurement Act, to regulate the health
decisions of American workers or to “reduc[e] absenteeism.”
Brnovich, 562 F. Supp. 3d at 152–53 (“Nor has the President,
in the seventy years since the Procurement Act was enacted,
ever used his authority under the Act to effectuate sweeping
public health policy.”); Kentucky, 23 F.4th at 607 (“[W]e
lack . . . a clear statement from Congress that it intended the
President to use a property-and-services procurement act, for
a purpose never-before recognized, to effect major changes
in the administration of public health.”). But this argument
equates inactivity with forbidden activity. See PennEast
Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 2261
(2021) (“[T]he non-use[] of a power does not disprove its
existence.” (citation omitted)). The history of the
Procurement Act, Executive Orders passed under its
authority, and subsequent judicial interpretations
demonstrate that the Contractor Mandate is not a
transformative expansion of the President’s statutory
authority. 27
The Procurement Act was enacted in 1949. As discussed
above, the purpose of the Act is to promote an economical
and efficient system of federal government procurement.

27
Other circuits have recounted this history as well. See Louisiana, 55
F.4th at 1023–27; Kentucky, 23 F.4th at 605–06; Georgia, 46 F.4th at
1299–1301.

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30 MAYES V. BIDEN

See *XQG\ Y 8QLWHG6WDWHV, 139 S. Ct. 2116, 2127 (2019)

(plurality op.) (noting that a statute’s statement of purpose
“is an appropriate guide to the meaning of the [statute’s]
operative provisions” (alteration in original) (internal
quotation marks and citation omitted)).
“[T]he most prominent use of the President’s authority
under the [Act]” in the first few decades of its existence was
“a series of anti-discrimination requirements for
Government contractors.” $P )HG¶Q RI /DE  &RQJ RI
Indus. Orgs. v. Kahn, 618 F.2d 784, 790–91 (D.C. Cir. 1979)
(en banc). Several Presidents issued Executive Orders
forbidding contractors from discriminating on the basis of
race, creed, color, or national origin. Id. at 790–91, 791 n.33
(citing orders). In Kahn, the en banc D.C. Circuit recognized
that some of these Executive Orders “were issued under the
President’s war powers and special wartime legislation,” but
that “for the period from 1953 to 1964[,] only the
[Procurement Act] could have provided statutory support for
the Executive action.” Id. at 790–91 (emphasis added).
In 1964, the Third Circuit became the first appellate
court to consider these executive actions. See )DUPHU Y
Philadelphia Elec. Co., 329 F.2d 3 (3d Cir. 1964). The
)DUPHU court ruled that the President had the authority to
issue the orders under the Procurement Act. Id. at 8 (“In
view of the [Procurement Act], we have no doubt that the
applicable executive orders and regulations have the force of
law.”). 28 Three years later, the Fifth Circuit also declined to

28
)DUPHU also relied on the Defense Production Act of 1950 for statutory
authorization. See 329 F.2d at 7–8. However, the )DUPHU court made
clear that such reliance was in addition to the Procurement Act’s
authority. See id. (quoting provisions of the Procurement Act and

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MAYES V. BIDEN 31

hold that an antidiscrimination Executive Order was “so

unrelated” to the Procurement Act’s purpose that it “should
be treated as issued without statutory authority.” )DUNDVY
7H[DV ,QVWUXPHQW ,QF, 375 F.2d 629, 632 n.1 (5th Cir.
1967).
In 1971, the Third Circuit upheld an Executive Order
requiring contractors to commit to affirmative action hiring
programs. Contractors Ass’n of E. Pa. v. Sec’y of Lab., 442
F.2d 159, 170 (3d Cir. 1971). The court found the Executive
Order supported by the President’s authority under the
Procurement Act because preventing the federal
government’s suppliers from “increasing its costs and
delaying its programs by excluding from the labor pool
available minority workmen” would improve the economy
and efficiency of federal contracts. Id.
In 1979, the en banc D.C. Circuit upheld an Executive
Order by President Carter that required federal contractors
to adhere to price and wage guidelines. Kahn, 618 F.2d at
785. The Kahn court recognized that the Executive Order
had the additional motive of slowing inflation in the
economy, see id. at 792–93, but respected the President’s
calculation that there was a “nexus between the wage and
price standards and likely savings to the Government,” id. at
793.
In 1986 and 1996, Congress recodified the Procurement
Act without any substantive change. 29 In 2001, President

referring to those provisions for statutory authority when finding the

Executive Orders at issue “have the force of law,” id. at 8).
29
Pub. L. No. 99-500, 100 Stat. 1783, 1783-345 (1986); Pub. L. No. 99-
591, 100 Stat. 3341, 3341-345 (1986); Pub. L. No. 104-208, 110 Stat.
3009, 3009-337 (1996).

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32 MAYES V. BIDEN

Bush issued an Executive Order that required government

contractors and their subcontractors to post notices at their
facilities informing their employees of certain labor rights.
Exec. Order No. 13,201, 66 Fed. Reg. 11,221, 11,221–22
(Feb. 17, 2001). This was the first Executive Order to
explicitly cite the Procurement Act as its source of authority.
Id. at 11,221; but see Louisiana, 55 F.4th at 1037 (Graves,
J., dissenting) (“Executive Orders are not required to lay out
the specific statute that the President’s authority falls
under.”).
A year later, Congress recodified the Procurement Act 30
with minor changes but clarified that those edits made “no
substantive change in existing law.” Act of August 21, 2002
§ 5(b). This is the Act’s present form as to the provisions
relevant here.
In 2003, the D.C. Circuit upheld the validity of President
Bush’s 2001 Executive Order. 8$:-Labor Employment &
7UDLQLQJ&RUSY&KDR, 325 F.3d 360, 362 (D.C. Cir. 2003).
President Bush had justified the Executive Order by
asserting a nexus to economy and efficiency because
“[w]hen workers are better informed of their rights, . . . their
productivity is enhanced” and because “[t]he availability of
such a workforce from which the United States may draw
facilitates the efficient and economical completion of its
procurement contracts.” Id. at 366 (quoting 66 Fed. Reg. at
11,221). The D.C. Circuit recognized that the “link may
seem attenuated” but found that there was “enough of a
nexus” to uphold the Order. Id. at 366–67.

30
Pub. L. No. 107-217, 116 Stat. 1062, 1063, 1068 (2002) (“Act of
August 21, 2002”).

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MAYES V. BIDEN 33

In 2009, the District Court of Maryland upheld an

Executive Order issued by President Bush requiring federal
contractors to use the E-Verify system to confirm
employees’ compliance with immigration law (“E-Verify
Order”). Chamber of Commerce v. Napolitano, 648 F. Supp.
2d 726, 738 (D. Md. 2009). The district court deferred to the
President’s judgment that contractors with “rigorous
employment eligibility confirmation policies” would be
“more efficient and dependable procurement sources,” id.
(quoting Exec. Order No. 13,465, 73 Fed. Reg. 33,285 (June
11, 2008)), and noted that “[t]he President and his
Administration are in a better position than this Court to
make such determinations,” id.
Finally, in 2015, President Obama issued an Executive
Order requiring federal contractors to “ensur[e] that
employees on [federal] contracts can earn up to 7 days or
more of paid sick leave annually, including paid leave
allowing for family care.” Exec. Order No. 13,706, 80 Fed.
Reg. 54,697, 54,697 (Sept. 7, 2015). The President justified
the order under the Procurement Act on the following basis:

Providing access to paid sick leave will

improve the health and performance of
employees of Federal contractors and bring
benefits packages at Federal contractors in
line with model employers, ensuring that they
remain competitive employers . . . . These
savings and quality improvements will lead
to improved economy and efficiency in
Government procurement.

Id. This order was not challenged in federal court. See

Georgia, 46 F.4th at 1301.

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34 MAYES V. BIDEN

As this history demonstrates, Presidents have used the

Procurement Act to require federal contractors to commit to
affirmative action programs when racial discrimination was
threatening contractors’ efficiency; to adhere to wage and
price guidelines to help combat inflation in the economy; to
ensure compliance with immigration laws; and to attain sick
leave parity with non-contracting employers because federal
contractors were lagging behind and losing talent. It is not a
“transformative expansion” of that same authority to require
federal contractors—amid an unprecedented global
pandemic—to take vaccination-related steps (already
required by many private employers) that promote economy
and efficiency by reducing absenteeism, project delays, and
cost overruns.
Congress’s re-enactment of the Procurement Act is also
instructive. “Congress is presumed to be aware of a[] . . .
judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without
[substantive] change.” Chugach Mgmt. Servs. v. Jetnil, 863
F.3d 1168, 1174 (9th Cir. 2017) (citation omitted); see also
7H[ 'HS¶W RI +RXV Cmty. Affs. v. Inclusive Cmtys.
Project, Inc., 576 U.S. 519, 536 (2015) (“If a word or phrase
has been given a uniform interpretation by inferior courts, a
later version of that act perpetuating the wording is
presumed to carry forward that interpretation.” (cleaned up)
(quoting A. Scalia & B. Garner, Reading /DZ 7KH
,QWHUSUHWDWLRQ RI /HJDO 7H[WV 322 (2012))). We must
presume that, when recodifying the Act in 2002, Congress
knew that the Third, Fifth, and D.C. Circuits had interpreted
the President’s Procurement Act authority and the statutory
terms “economy” and “efficiency” broadly, and that
President Bush had—just a year prior in 2001—relied on
those terms to issue an Executive Order requiring

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government contractors to post notices informing their

employees of certain labor rights. 31
Congress’s affirmation of the broad understandings of
those terms through re-enactment adds further weight to our
holding that the Procurement Act supports an exercise of
authority like the Contractor Mandate. Presidents have,
when the need arose, used the Procurement Act in ways they
found necessary to promote economy and efficiency in
federal contracting and procurement. The Contractor
Mandate, which fits well within the Procurement Act’s
historical uses, was not a transformative expansion of the
President’s authority under that Act. 32

31
Since the Procurement Act was last recodified in 2002, we will not
presume Congressional approval of President Bush’s Executive Order
upheld in Chao, the E-Verify Order, or President Obama’s Executive
Order targeting paid sick leave. But when “the President’s view of his
own authority under a statute . . . has been acted upon over a substantial
period of time without eliciting congressional reversal, it is ‘entitled to
great respect’” and the President’s “construction of a statute . . . should
be followed unless there are compelling indications that it is wrong.”
Kahn, 618 F.2d at 790 (emphasis added) (citations omitted); see also
Kisor v. Wilkie, 139 S. Ct. 2400, 2426 (2019) (Gorsuch, J., concurring in
the judgment) (“[T]he government’s early, longstanding, and consistent
interpretation of a statute, regulation, or other legal instrument could
count as powerful evidence of its original public meaning.” (emphasis
omitted)).
32
At oral argument, counsel for one Intervenor stated that it “is difficult
to reconcile” multiple historical uses of the Procurement Act—such as
the antidiscrimination orders or the E-Verify Order—with their view of
the Major Questions Doctrine. Oral Arg., at 45:20–46:15. We think that
might well be true: if Arizona’s initial and Intervenors’ current view of
the Doctrine were correct, then many prior actions by Presidents would
be suspect. But that provides us with an additional reason why that view

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36 MAYES V. BIDEN

The Fifth Circuit recognized the history of the

Procurement Act, but concluded that the Contractor Mandate
was “strikingly unlike” any past action taken under the Act,
not least because “a vaccination cannot be undone at the end
of the workday.” Louisiana, 55 F.4th at 1030 (cleaned up)
(quoting Nat’l )HG¶Q of Indep. Bus. v. Dep’t of Lab., 142 S.
Ct. 661, 665 (2022) (per curiam)). But the impacts of anti-
discrimination or affirmative action programs, wage and
price policies, and immigration law compliance mechanisms
also do not end with the workday—and even if they did, we
do not see how that in itself would circumscribe the
President’s authority.
The Fifth Circuit also found important that previous
Executive Orders “govern[ed] the conduct of employers,
[whereas] the vaccine mandate purports to govern the
conduct of employees.” Id. But this supposed distinction
“frames the issue at the wrong level of generality.”
Kentucky, 23 F.4th at 610. As Judge Graves highlighted in
dissent in Louisiana when discussing the E-Verify Order, the
employer/employee distinction does not stand up to scrutiny:

Both Executive Orders require something of

employers, namely that the employer use the
E-Verify system to verify the immigration
eligibility of its workers, and that the
employer uses a system to verify the vaccine
eligibility of its workers. Both necessarily
touch the employees, namely that employees

of the Doctrine is not correct. We agree with the courts that upheld those
prior Executive Orders as within the President’s authority under the
Procurement Act for the same (or similar) reasons we now find that the
Contractor Mandate is within President Biden’s authority.

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MAYES V. BIDEN 37

working for federal contractors must be

verified under the E-Verify system or be
subject to termination, and that employees
working for federal contractors must be
verified as being COVID-19 vaccine
compliant or be subject to termination.

55 F.4th at 1036–37 (Graves, J., dissenting).

In sum, we find that the Major Questions Doctrine is not
relevant here because the Contractor Mandate is a
Presidential—not an agency—action. But even if the
Doctrine applied, it would not bar the Contractor Mandate
because the Mandate is not a transformative expansion of the
President’s authority under the Procurement Act.
B. The Contractor Mandate falls within the
President’s authority under the Procurement Act.
Plaintiffs also argue that, even if the Major Questions
Doctrine does not bar the Contractor Mandate, the Mandate
nonetheless exceeds the scope of the President’s authority
under the Procurement Act. We disagree.
The Procurement Act empowers the President to
“prescribe policies and directives that the President
considers necessary to carry out” the statute’s objective of
“provid[ing] the Federal Government with an economical
and efficient system” for “[p]rocuring . . . nonpersonal
services, and performing related functions including
contracting.” 40 U.S.C. §§ 101, 121(a). Our Circuit has not
yet addressed the scope of the President’s authority under the
Procurement Act. But for the EO to have the force of law,
“it is necessary to establish a nexus between the [EO] and
some delegation of the requisite legislative authority by

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38 MAYES V. BIDEN

Congress.” Chrysler Corp. v. Brown, 441 U.S. 281, 304

(1979).
Different circuits have interpreted that requirement
differently. The D.C. Circuit requires a “sufficiently close
nexus” between an order issued pursuant to the Procurement
Act and the statutory goals of economy and efficiency. See
Chao, 325 F.3d at 366 (quoting Kahn, 618 F.2d at 792). The
Fourth Circuit requires a finding that the executive branch
policies are “reasonably related to the Procurement Act’s
purpose.” /LEHUW\0XW,QV&RY)ULHGPDQ, 639 F.2d 164,
170 (4th Cir. 1981). Even though the D.C. Circuit’s
language sounds more stringent, its standard is a “lenient”
one, Chao, 325 F.3d at 367, and “‘[e]conomy’ and
‘efficiency’ are not narrow terms; they encompass those
factors like price, quality, suitability, and availability of
goods or services that are involved in all acquisition
decisions,” Kahn, 618 F.2d at 789.
The President tasked the OMB Director to “determine
whether [the Task Force’s] Guidance will promote economy
and efficiency in Federal contracting if adhered to by
Government contractors.” 86 Fed. Reg. at 50,986. The
Acting OMB Director determined that the Task Force
Guidance will “decrease the spread of COVID-19, which
will in turn decrease worker absence, save labor costs on net,
and thereby improve efficiency in Federal contracting.” 86
Fed. Reg. at 63,421. The OMB Determination further
explained how COVID-19 infections “impose[] significant
costs on contractors and the federal government,” and how
vaccination against COVID-19 “reduces net costs.” Id. at
63,421–22 (bolding and capitalization omitted). Although
Arizona describes the Contractor Mandate as an effort to
make federal contractors “supposedly more efficient,” the
district court did not make factual findings that contradicted

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MAYES V. BIDEN 39

the findings underlying the OMB Determination or conclude

that those findings were arbitrary and capricious. See
generally Brnovich, 562 F. Supp. 3d at 152–57. There is no
legal basis to disregard the OMB’s findings, all of which
support the reasoning behind the Contractor Mandate.
Under either the D.C. or Fourth Circuit’s tests, the
Contractor Mandate falls within the President’s Procurement
Act authority. 33 The findings in the OMB Determination
show a “sufficiently close nexus” with, Kahn, 618 F.2d at
792, and a “reasonabl[e] relat[ionship]” to, Liberty Mut., 639
F.2d at 170, the Contractor Mandate and the Procurement
Act’s goals of economy and efficiency. It is axiomatic that
federal contracts will be performed more economically and
efficiently with fewer absences. Would our analysis be
different if the COVID-19 pandemic were far less serious?
Perhaps, but unfortunately the President did not face that
hypothetical. The President faced a pandemic the likes of
which the world has not seen in more than a century.
Our conclusion is bolstered by precedent interpreting the
Procurement Act. The broad language of the Act
purposefully gives the President both “necessary flexibility
and ‘broad-ranging authority’” in setting procurement
policies. Chao, 325 F.3d at 366 (citation omitted). And the
Act leaves room for the President’s discretion by directing
the President to “prescribe policies and directives that the
President considers necessary” to carrying out the purposes
of the Act. 40 U.S.C. § 121(a) (emphasis added). This
statute does not present the worry of Congress hiding

33
Because any formulation of the nexus test we might adopt would yield
the same result, we do not need to provide a definitive standard here.

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40 MAYES V. BIDEN

“elephants in mouseholes.” :KLWPDQ Y $P 7UXFNLQJ

Ass’ns, Inc., 531 U.S. 457, 468 (2001).
In this way, the Procurement Act is similar to the
statutory text at issue in Biden v. Missouri, 142 S. Ct. 647
(2022) (per curiam). In Missouri, the Supreme Court held
that language authorizing the Secretary of Health and
Human Services to impose conditions he “finds necessary in
the interest of . . . health and safety” was adequate
authorization to impose a vaccination requirement on the
employees of facilities that receive Medicare and Medicaid
funds. Id. at 652 (quoting 42 U.S.C. § 1395x(e)(9))
(emphasis added).
The Sixth Circuit concluded that the Procurement Act
only confers authority “to implement systems making the
government’s entry into contracts less duplicative and
inefficient, but it does not authorize [the President] to impose
a medical mandate directly upon contractor employees
themselves.” Kentucky, 23 F.4th at 605. Therefore,
according to the Kentucky court, the government lacked
authority to regulate contractors directly to improve their
economy and efficiency, rather than the government’s. Id.
Likewise, the Eleventh Circuit held the Procurement Act’s
“statutory scheme” is limited to “a framework through which
agencies can articulate specific, output-related standards”
for their procurement decisions. Georgia, 46 F.4th at 1295.
There, the court determined the Contractor Mandate is
“different in nature than the sort of project-specific
restrictions” set forth in the Procurement Act. Id. at 1296.
We respectfully disagree. The Act’s text—empowering
the President to “prescribe . . . directives that the President
considers necessary,” 40 U.S.C. § 121(a), to realize “an
economical and efficient system” for “[p]rocuring . . .

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MAYES V. BIDEN 41

services, and performing . . . contracting,” id. § 101(1)—

allows for prescribing requirements that address contractors’
operations. The word “system” encompasses how the
contractors’ services are to be rendered. Merriam-Webster
defines “system” as “an organized or established
procedure.” 34 We hold that the President was justified in
finding that prescribing vaccination-related steps contractors
must take in order to work on government contracts would
directly promote an economical and efficient “system” for
both procuring services and performing contracts. And we
believe the President was authorized by the Act to establish
a procedure by which taxpayer funds used to pay contractors
who work on federal government projects are only used to
pay those contractors whose relevant employees are
vaccinated against COVID-19.
The Sixth Circuit in Kentucky also did not adequately
address Presidents’ historical practices under the
Procurement Act, many of which undeniably affected
contractors’ own operations rather than merely the
government’s entry into contracts. See 23 F.4th at 605–10.
President Bush justified his 2001 Executive Order requiring
contractors to post notices informing their employees of
certain labor rights on the explicit basis that “[w]hen workers
are better informed of their rights, . . . their productivity is
enhanced.” 66 Fed. Reg. at 11,221 (emphasis added). This
was the last Executive Order issued under the Procurement
Act before Congress’s latest recodification of the Act, in
which Congress stated it was making “no substantive change
in existing law.” Act of August 21, 2002 § 5(b).

34
System, MERRIAM-WEBSTER, https://www.merriam-webster.com/dicti
onary/system (last visited Apr. 11, 2023).

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42 MAYES V. BIDEN

The Kentucky court classifies the Executive Orders in

Kahn, Chao, and Napolitano as having a “‘close nexus’ to
the ordinary hiring, firing, and management of labor.”
Kentucky, 23 F.4th at 607 (quoting Kahn, 618 F.2d at 792).
But the Contractor Mandate is also closely related to the
ordinary management of labor—as evidenced by the
analogous private sector practices that the Acting OMB
Director cited in the OMB Determination. 86 Fed. Reg. at
63,421–22; accord Louisiana, 55 F.4th at 1036–37 (Graves,
J., dissenting) (explaining how the E-Verify Order in
Napolitano and the Contractor Mandate place similar
requirements on employees).
The district court, Arizona, and the Fifth Circuit worry
that upholding the Contractor Mandate will mean there is no
limiting principle to the President’s authority under the
Procurement Act. The district court hypothesized that
sustaining the Contractor Mandate would permit the
President to enact any executive order, “no matter how
tenuous” the connection to economy and efficiency, such as
“requiring all federal contractor employees to refrain from
consuming soda or eating fast food.” Brnovich, 562 F. Supp.
3d at 152. The Fifth Circuit went further, positing that
upholding the Contractor Mandate would enable the
Executive Branch to require that “all federal contractors
certify that their employees take daily vitamins, live in
smoke-free homes, exercise three times a week, or even, at
the extremity, take birth control in order to reduce
absenteeism relating to childbirth and care.” Louisiana, 55
F.4th at 1031–32; accord Georgia, 46 F.4th at 1296
(warning that the Procurement Act “is not an ‘open book’ to
which contracting agencies may ‘add pages and change the
plot line’” (quoting West Virginia, 142 S. Ct. at 2609)).

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We reject these invitations to adjudicate slippery-slope

hypotheticals. “In our system of government, courts base
decisions not on dramatic Hollywood fantasies, . . . but on
concretely particularized facts developed in the cauldron of
the adversary process and reduced to an assessable record.”
8QLWHG6WDWHVY.LQFDGH, 379 F.3d 813, 838 (9th Cir. 2004)
(en banc) (internal citation omitted). Moreover, the
Procurement Act has a clear textual limiting principle in that
the President can only prescribe policies and directives that
he “considers necessary” to ensure “an economical and
efficient system” for procurement and contracting. 40
U.S.C. §§ 101, 121(a). While a future President might try to
analogize soda consumption to a worldwide pandemic in
issuing an Executive Order under the Procurement Act, we
will leave the consideration of that hypothetical Executive
Order to a future court.
***
We hold that the Contractor Mandate falls within the
President’s authority under the Procurement Act.
C. Other doctrines do not bar the Contractor
Mandate.
1. Nondelegation Doctrine
The district court also invoked the constitutional
avoidance canon to invalidate the Contractor Mandate,
reasoning that the Mandate “raises serious constitutional
questions” under the nondelegation doctrine. Brnovich, 562
F. Supp. 3d. at 155–56. We disagree. The nondelegation
doctrine arises out of the principle that Congress “may not
transfer to another branch ‘powers which are strictly and
exclusively legislative.’” Gundy, 139 S. Ct. at 2123 (quoting
Wayman v. Southard, 23 U.S. 1, 42–43 (1825)). But the

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44 MAYES V. BIDEN

Supreme Court has recognized that “Congress simply cannot

do its job absent an ability to delegate power under broad
general directives,” 0LVWUHWWDY8QLWHG6WDWHV, 488 U.S. 361,
372 (1989), and has concluded that a statutory delegation is
constitutional so long as Congress “lay[s] down by
legislative act an intelligible principle to which the person or
body authorized to [exercise the delegated authority] is
directed to conform,” id. (second alteration in original)
(quoting -:+DPSWRQ-U &RY8QLWHG6WDWHV, 276 U.S.
394, 409 (1928)).
The Supreme Court has only twice found statutory
delegations excessive under the nondelegation doctrine. 35
No statutory delegation has been invalidated due to
nondelegation concerns in nearly ninety years. The Supreme
Court has found an intelligible principle when the agency
was authorized to regulate in the “public interest,” see
National Broadcasting &RY8QLWHG6WDWHV, 319 U.S. 190,
215–17 (1943), and—more recently—when the agency
issued air quality standards “requisite to protect the public
health,” Whitman, 531 U.S. at 473. The Procurement Act
has a clear intelligible principle that easily clears the low
threshold established by National Broadcasting Company: it
authorizes the President to “prescribe policies and directives
that the President considers necessary” to secure “an
economical and efficient system” for procurement and
contracting. 40 U.S.C. §§ 101, 121(a). This principle “can

35
See $/$ 6FKHFKWHU 3RXOWU\ &RUS Y 8QLWHG 6WDWHV, 295 U.S. 495,
530–42 (1935) (invalidating a statute that empowered the President to
approve industry-specific “codes of fair competition” and thus regulate
the entire economy); Panama Refin. Co. v. Ryan, 293 U.S. 388, 414–20
(1935) (invalidating a statute that authorized the President to prohibit
interstate and foreign transportation of oil produced in excess of state
quotas but provided no guidance for how to exercise discretion).

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be applied generally to the President’s actions to determine

whether those actions are within the legislative delegation.”
Kahn, 618 F.2d at 793 n.51.
2. Federalism and State Sovereignty
Neither federalism nor state sovereignty concerns bar the
Contractor Mandate. The district court viewed the Mandate
as a “regulation of health and safety matters” and thus in
conflict with Arizona’s “traditional police power.” See
Brnovich, 562 F. Supp. 3d at 156–57 (citations omitted). But
the Contractor Mandate is aimed at federal contracting, even
if also motivated by health and safety concerns. And the
federal government undisputedly has the power to regulate
the performance of federal contracts. See Gartrell Constr.
Inc. v. Aubry, 940 F.2d 437, 440–41 (9th Cir. 1991)
(exempting federal contractors from state licensing
requirements); 8QLWHG6WDWHVY9LUJLQLD, 139 F.3d 984, 990
(4th Cir. 1998) (“[F]ederal contractors cannot be required to
satisfy state ‘qualifications in addition to those that the
[Federal] Government has pronounced sufficient.’” (second
alteration in original) (quoting Leslie Miller, Inc. v.
Arkansas, 352 U.S. 187, 190 (1956))). Even if the Mandate
did regulate health and safety, the federal government does
not “invade[]” areas of state sovereignty “simply because it
exercises its authority . . . in a manner that displaces the
States’ exercise of their police powers.” Hodel v. Virginia
Surface Min. & Reclamation Ass’n, 452 U.S. 264, 291
(1981).
The nondelegation doctrine and state sovereignty
concerns do not somehow invalidate the Contractor
Mandate.
D. The Contractor Mandate satisfies the
Procurement Policy Act’s procedural

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46 MAYES V. BIDEN

requirements.
Arizona contends that the Task Force’s Guidance, the
FAR Council Guidance, and the OMB Determination fail the
Procurement Policy Act’s procedural requirements. The
Procurement Policy Act typically requires that comments on
a proposed policy be open for at least 30 days and that the
policy not take effect until 60 days after its publication for
comment. 41 U.S.C. § 1707(a), (b). The district court
correctly rejected Arizona’s procedural challenges.
1. Task Force Guidance and FAQs
The Task Force documents survive any procedural
challenge for two reasons. First, the Task Force is not one
of the specifically enumerated “executive agenc[ies]” that
the Procurement Policy Act’s requirements apply to. Id.
§ 1707(c)(1). It is merely a body created by Executive Order
13,991. See 86 Fed. Reg. at 7,045–46. It can only advise
the President, id. at 7,046, and thus lacks the “substantial
independent authority” required of an “agency,” Meyer v.
Bush, 981 F.2d 1288, 1292 (D.C. Cir. 1993). See also id. at
1292–97 (concluding that the President’s Task Force on
Regulatory Relief was not an “agency” under the Freedom
of Information Act because it lacked “substantial
independent authority”).
Second, the Task Force Guidance and FAQs have no
standalone legal force. The EO stated that any Task Force
Guidance would only be binding after the OMB Director’s
economy-and-efficiency determination. 86 Fed. Reg. at
50,985–86. Therefore, as the district court found, the Task
Force Guidance and FAQs “do not independently constitute
a binding ‘policy, regulation, procedure, or form.’”
Brnovich, 562 F. Supp. 3d at 160.

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2. The FAR Council Guidance

The district court correctly held that the FAR Council
Guidance “is not binding of its own force” and “does not
compel agencies to take any specific action.” Id. That
Guidance points contracting officers to “the direction[s] . . .
issued by their respective agencies.” FAR Council
Guidance, at 2. Thus, the FAR Council Guidance is not a
“‘procurement policy, regulation, procedure, or form” such
that it would need to conform to the Procurement Policy
Act’s notice-and-comment procedures under 41 U.S.C.
§ 1707. Brnovich, 562 F. Supp. 3d at 160.
3. The OMB Determination
The federal government argues, as it did below, that the
Acting OMB Director did not have to comply with the
notice-and-comment provisions because the Director was
acting pursuant to power delegated to her by the President.
The federal government also notes that, like the district
court, this court “need not determine the applicability of the
[Procurement Policy Act] because the . . . Director
voluntarily complied with § 1707.”
The district court found that even if the Acting OMB
Director were subject to the notice-and-comment
requirements of the Procurement Policy Act, she “properly
invoked the § 1707(d) waiver provision,” id. at 158, because
“‘urgent and compelling circumstances’ made compliance
with ordinary § 1707 procedures impracticable with respect
to the revised OMB determination,” id. at 159. We agree.
The Acting OMB Director made clear that the “broader
economy-and-efficiency purpose” of the OMB
Determination “would be severely undermined by the
minimum delay required under” § 1707’s notice-and

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48 MAYES V. BIDEN

comment provisions. 86 Fed. Reg. at 63,424. Arizona

claims that § 1707(d)’s waiver provision only applies to
“temporary” procurement regulations, whereas the OMB
Determination here has “no certain endpoint.” Arizona
incorrectly equates an unknown duration with an unlimited
duration. In a dynamic situation such as a pandemic, the
absolute end date of temporary measures cannot be
definitively determined in advance. In that way, the OMB
Determination is temporary much like a public health
emergency or a grant of emergency use authorization is
temporary.
Arizona also argues that there are no “urgent and
compelling circumstances” here because the Contractor
Mandate is “putatively based solely on promoting economy
and efficiency in federal contracting” and the government
relies on “supposed efficiency gains.” In contrast, Arizona
highlights that the Centers for Medicare & Medicaid
Services in Missouri had found that immediate publication
would “significantly reduce . . . infections, hospitalizations,
and deaths.” 142 S. Ct. at 654. Health-related concerns like
those in Missouri may be immediately calculable. But the
economic and logistical consequences of infections,
isolation periods, and quarantine requirements on federal
contracts and budget overruns necessarily operate as domino
effects. Therefore, it is not disqualifying that health
concerns in one context were based on actual data while
economic projections in this context are just that:
projections.
***
For similar reasons discussed above (no final agency
action in the case of the FAR Council Guidance and no

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agency in the case of the Task Force), Arizona’s claims

under the Administrative Procedure Act (“APA”) also fail.36
***
Because Arizona fails to satisfy the first prong of the
permanent injunction inquiry—actual success on the
merits—we need not analyze whether it has satisfied the
remaining prongs. Cf. Garcia v. Google, Inc., 786 F.3d 733,
740 (9th Cir. 2015) (en banc) (stating that courts “need not
consider the remaining” preliminary injunctive factors if a
plaintiff fails the “threshold inquiry” of likelihood of success
on the merits (quoting Ass’n des Eleveurs de Canards et
d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir.
2013)).
IV. CONCLUSION
The President, when faced with an unprecedented
pandemic that has claimed millions of lives and caused
billions of dollars of productivity losses, issued a Mandate
requiring that certain employees of contractors working on
federal projects be vaccinated against the disease that
resulted in the pandemic. The President appropriately relied
on a statute that gave him the necessary flexibility and broad-
ranging authority to ensure economy and efficiency in
federal procurement and contracting. The President issued
the Contractor Mandate following the required procedural
measures, and the Mandate became effective upon a
reasoned determination of its benefits by the OMB.

36
In its briefing, Arizona originally requested that we remand the APA
claims to the district court for further injunction-related litigation.
However, Arizona has now abandoned that request, and Intervenors have
not sought such a remand. Thus, we treat that remand request as waived.

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50 MAYES V. BIDEN

We REVERSE the district court’s grant of a permanent

injunction and dissolve the injunction.

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UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KRISTIN K. MAYES, Attorney General; et No. 22-15518
al.,
D.C. No. 2:21-cv-01568-MTL
Plaintiffs-Appellees, District of Arizona,
Phoenix
v.
ORDER
JOSEPH R. BIDEN, in his official capacity
as President of the United States; et al.,

Defendants-Appellants,
______________________________

ARIZONA CHAMBER OF COMMERCE &

INDUSTRY; FIFTY-SIXTH ARIZONA
LEGISLATURE,

Intervenors.

Before: CLIFTON, BENNETT, and DESAI, Circuit Judges.

The panel has voted to stay the district court’s injunction pending resolution

of this appeal. The district court had issued a permanent injunction enjoining all

Defendants except the City of Phoenix and President Joseph Biden from enforcing

a COVID-19 vaccination requirement for federal contractors and subcontractors

pursuant to Executive Order 14,042 in any contract that either involved a party

domiciled or headquartered in Arizona and/or was performed “principally” in

Arizona. Mayes et al. v. Biden et al., 2:21-cv-01568-MTL, ECF No. 165, at 1–2

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(Feb. 10, 2022). The injunction further enjoined all Defendants except the City of

Phoenix and President Joseph Biden from denying government contracts to

contractors domiciled in or headquartered in the State of Arizona based on their

refusal to agree to the inclusion of a vaccination requirement. Id. at 2.

This stay of the district court’s injunction pending appeal is issued pursuant

to Fed. R. Civ. P. 62(g) and shall remain in place until we issue an opinion on the

merits of this appeal.

App.52a
 Case: 22-15518, 02/28/2023, ID: 12664351, DktEntry: 65, Page 1 of 2

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT FEB 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KRISTIN K. MAYES, Attorney General; et No. 22-15518
al.,
D.C. No. 2:21-cv-01568-MTL
Plaintiffs-Appellees, District of Arizona,
Phoenix
v.
ORDER
JOSEPH R. BIDEN, in his official capacity
as President of the United States; et al.,

Defendants-Appellants,
______________________________

FIFTY-SIXTH ARIZONA LEGISLATURE;

et al.,

Intervenors-Pending.

Before: CLIFTON, BENNETT, and DESAI, Circuit Judges.

On February 22, 2023, the Fifty-Sixth Arizona Legislature, Speaker of the

Arizona House of Representatives Benjamin Toma, Arizona Senate President

Warren Petersen, and Arizona Chamber of Commerce & Industry filed a Motion to

Intervene. Dkt. No. 53. We grant permissive intervention to the Arizona Chamber

of Commerce & Industry (the “Chamber”) and to the Fifty-Sixth Arizona Legislature

(the “Legislature”).1 We deny intervention to the Speaker of the Arizona House of

1
Judge Desai would have denied intervention to the Fifty-Sixth Arizona
Legislature.

App.53a
 Case: 22-15518, 02/28/2023, ID: 12664351, DktEntry: 65, Page 2 of 2

Representatives Benjamin Toma and the Arizona Senate President Warren Petersen

to the extent they moved independently as “presiding officers” of the Legislature.

Dkt. No. 53, at 1.

“Intervention on appeal is governed by Rule 24 of the Federal Rules of Civil

Procedure.” Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997). “Permissive

intervention to litigate a claim on the merits under Rule 24(b) requires (1) an

independent ground for jurisdiction; (2) a timely motion; and (3) a common question

of law and fact between the movant’s claim or defense and the main action.”

Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992).

We grant the Chamber’s motion to intervene based on no opposition from the

parties. See Dkt. No. 59, 60. We grant the Legislature’s motion to intervene in our

discretion because we find they have satisfied the three requirements of Fed. R. Civ.

P. 24(b).

We do not disturb the twenty (20) minutes of oral argument time allotted to

Plaintiffs-Appellees. The Chamber and the Legislature shall each get five (5)

minutes of oral argument, following the Plaintiffs-Appellees’ argument. The

Defendants-Appellants’ oral argument time will be extended to thirty (30) minutes.

SO ORDERED.

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Footnotes
1 The EO required the clause to be included in new contracts, new solicitations for a contract, extensions or renewals
of an existing contract, and exercises of an option on an existing contract, if the contract falls into one of the following
categories: a procurement contract for services, construction, or a leasehold interest in real property; a contract for
services covered by the Service Contract Act, 41 U.S.C. §§ 6701–6707; a contract for concessions, including any
concessions contract excluded by Department of Labor regulations at 29 C.F.R. § 4.133(b); or a contract entered into with
the federal government in connection with federal property or lands and related to offering services for federal employees,
their dependents, or the general public. 86 Fed. Reg. at 50,986–87. The EO does not extend to grants or to most contracts
for the procurement of goods (as opposed to services). Id. Nor does it extend to contracts “whose value is equal to or
less than the simplified acquisition threshold,” which is essentially $250,000. Id. at 50,986; see also 48 C.F.R. § 2.101.


    "

App.88a

 
  

2 Thus, the initial guidance de facto required that contractor employees receive their final vaccination dose no later than
November 24, 2021 to meet the December 8, 2021 deadline to be fully vaccinated.

3 That deadline nominally remains in place. But given the injunctions that have been entered in other cases challenging
the Contractor Mandate, see infra Section I.B., the mandate is not currently being enforced.

4 Plaintiffs elected not to include this claim in their Third Amended Complaint. (Doc. 134.)

5 On November 18, 2021, 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.

6 Plaintiffs presently seek injunctive relief only on the Vaccine Counts.

7 The Court will not address the substance of Plaintiffs’ APA claims because those claims have not been adequately
briefed. The claims are asserted in Plaintiffs’ Third Amended Complaint (see Doc. 134 at 61–64 ¶¶ 192–215), but have
not been addressed in any subsequent filing. Plaintiffs have therefore failed to demonstrate that they are entitled to relief
on those grounds.

8 The Court addresses Plaintiffs’ Tenth Amendment, anticommandeering doctrine, and nondelegation doctrine arguments
in conjunction with its analysis of whether the Contractor Mandate violates the Procurement Act. See infra Section III.B.1.

9 Reble concedes that he does not qualify for a religious exemption to the Employee Mandate. (See Doc. 134 at 40–41
¶ 112.)

10 While the D.C. Circuit addressed the government's argument on the merits, the court's reasoning applies with equal force
to Defendants’ jurisdictional argument.

11 While the text of § 1491(b) provides that the district courts and Court of Federal Claims have concurrent jurisdiction over
these matters, the Alternative Dispute Resolution Act of 1996 included a “sunset provision, which terminated federal
district court jurisdiction over bid protests on January 1, 2001.” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d
1071, 1079 (Fed. Cir. 2001).

12 3 U.S.C. § 301 provides, in pertinent part: “The President of the United States is authorized to designate and empower
the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by
and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President
(1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized
by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, That nothing
contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official
designated by him to perform such functions.”

13 There is rather little case law (and none binding on this Court) addressing whether agency action undertaken pursuant
to a presidential delegation under § 301 is insulated from judicial review under the APA. Compare Detroit Int'l Bridge Co.
v. Canada, 189 F. Supp. 3d 85, 100 (D.D.C. 2016) (“Several cases have concluded that an agency's action on behalf
of the President, involving discretionary authority committed to the President, is ‘presidential’ and unreviewable under
the APA.”), and Nat. Res. Def. Council, Inc. v. U.S. Dep't of State, 658 F. Supp. 2d 105, 111 (D.D.C. 2009) (finding no
judicial review under the APA where the President delegated his authority), and Tulare Cnty. v. Bush, 185 F. Supp. 2d
18, 28 (D.D.C. 2001) (same), with Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 1156–57 (D. Minn. 2010) (reaching the
opposite conclusion), and Indigenous Envt'l Network v. U.S. Dep't of State, No. cv-17-29, 2017 WL 5632435, at *6 (D.
Mont. Nov. 22, 2017) (same), and Protect Our Cmtys. Found. v. Chu, No. 12-cv-3062, 2014 WL 1289444, at *6 (S.D.
Cal. Mar. 27, 2014) (same).

14 Defendants are likely right on this point. See infra Section III.B.2.ii; see also Kentucky, ––– F.Supp.3d at ––––, 2021 WL
5587446, at *11 (“FAR Council Guidance is not subject to judicial review pursuant to the APA because the Guidance
does not constitute final agency action.”).


    #

App.89a

 
  

15 While the APA is not available to review actions involving the exercise of discretionary authority vested in the President
for abuse of discretion, see Detroit Int'l Bridge Co., 189 F. Supp. 3d at 99, courts may review a President's assertion of
statutory power to determine whether it is authorized by statute, see Corus Grp. PLC v. Int'l Trade Comm'n, 352 F.3d
1351, 1359 (Fed. Cir. 2003); see also Reich, 74 F.3d at 1331–32 & n.5 (“[The Court's] holding [in Dalton v. Specter,
511 U.S. 462, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994)] merely stands for the proposition that when a statute entrusts a
discrete specific decision to the President and contains no limitations on the President's exercise of that authority, judicial
review of an abuse of discretion claim is not available.”).

16 Nor does sovereign immunity bar Plaintiffs’ claims. The APA, 5 U.S.C. § 702, waives sovereign immunity with respect
to suits against federal actors for injunctive relief, even where the suit does not proceed under the APA. See Reich, 74
F.3d at 1328 (“The APA's waiver of sovereign immunity applies to any suit whether under the APA or not.”).

17 The Ninth Circuit has not yet addressed the scope of the President's authority under the Procurement Act.

18 For this reason, the Contractor Mandate is even more clearly unlawful than the OSHA mandate that was recently stayed
by the Supreme Court. See NFIB, 142 S. Ct. 661.

19 Westlaw, for instance, identifies only seventeen cases that cite § 1707. Of those, only five mention “urgent and
compelling,” three of which involve challenges to the Contractor Mandate.

20 As of January 25, 2022, the virus had resulted in more than 70,641,725 reported cases and 864,203 deaths. See COVID
Data Tracker, CDC, https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last visited Jan. 25, 2022).

21 Generally, courts are more willing to permit procedural exceptions where, as here, the challenged measure is temporary
and subject to concurrent public comment. See Am. Fed'n of Gov't Emps. v. Block, 655 F.2d 1153, 1157–58 (D.C. Cir.
1981).

22 Only the Pfizer Comirnaty vaccine has been fully approved by the FDA. The other two available COVID-19 vaccines
—manufactured by Moderna and by Johnson & Johnson—are not fully approved and are only available under EUAs.
The Court will assume, arguendo, that Plaintiffs are correct that Pfizer's EUA and fully approved vaccines are materially
distinct, and that only Pfizer's EUA vaccine is currently available in the United States. (See Doc. 134 at 22 ¶¶ 67–
68.) But see Vaccine Information Fact Sheet for Recipients and Caregivers About Comirnaty (Oct. 29, 2021), https://
www.fda.gov/media/153716/download (stating that the EUA and fully approved vaccines “can be used interchangeably
without presenting any safety or effectiveness concerns”); Johnson v. Brown, No. 3:21-cv-01494, ––– F. Supp. 3d ––––,
2021 WL 4846060, at *18 (D. Or. Oct. 18, 2021) (“[T]he August FDA [a]pproval of Pfizer-BioNTech's mRNA vaccine was
for the chemically and biologically identical vaccine that ... was given EUA by the FDA in the United States.”).

23 Plaintiffs assert that Jacobson is inapposite because it only “address[ed] whether States have the power to
impose vaccine mandates” and did not “consider[ ] the constitutionality of the Federal government imposing such
mandates ....” (Doc. 34 at 37.) Even if that were true, it does not bear on Plaintiffs’ substantive due process claim,
which involves the question whether individuals have a fundamental constitutional right to refuse compulsory vaccination,
irrespective of which unit of government (local, state, or federal) made the vaccination compulsory.

24 Even absent Plaintiffs’ concession, their claims would fail. The City of Phoenix, obviously, is not a federal actor. It is
therefore not subject to the strictures of the Procurement Act, which binds only federal actors, or the anticommandeering
doctrine, which prevents the federal government, not local municipalities, from commandeering state governments. Thus,
the City played no part in the enactment of the Contractor Mandate and plays no part in its enforcement. And, as described
above, there is no due process right to refuse vaccination. See supra Section III.B.4.

25 The APA, 5 U.S.C. § 702, waives sovereign immunity with respect to suits for injunctive relief but not suits for money
damages. And, contrary to Defendants’ assertions, the CDA does not provide an adequate remedy for Plaintiffs’ injuries.
See supra Section III.A.2.


    $

App.90a

 
  

End of Document © 2023 Thomson Reuters. No claim to original U.S.

Government Works.


    %

App.91a
 Case 2:21-cv-01568-MTL Document 165 Filed 02/10/22 Page 1 of 3

1 WO
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
9 Mark Brnovich, et al., No. CV-21-01568-PHX-MTL
10 Plaintiffs, PERMANENT INJUNCTION
11 v.
12 Joseph R Biden, et al.,
13 Defendants.
14
15 On January 27, 2022, the Court issued an Order (Doc. 156) granting in part
16 Plaintiffs’ Motion for Preliminary Injunction (Doc. 72). Having reviewed Plaintiffs’
17 proposed form of injunction (Doc. 158) and Defendants’ objections thereto (Doc. 159), and
18 there being no just reason for delay, Fed. R. Civ. P. 54(b),
19 IT IS ORDERED as follows:
20 1. Pursuant to 28 U.S.C. § 2201 and Fed. R. Civ. P. 57, the Court declares that
21 the vaccination requirement for federal contractors and subcontractors established
22 pursuant to Executive Order 14042 (the “Contractor Mandate”) exceeds the scope of the
23 President’s authority under the Federal Property and Administrative Services Act (the
24 “Procurement Act”), 40 U.S.C. § 101 et seq.
25 2. All Defendants except the City of Phoenix and President Joseph Biden are
26 enjoined from including a clause implementing the above-referenced vaccination
27 requirement (i) in any contract to which a contracting party is domiciled in or
28 headquartered in the State of Arizona, including the State of Arizona or any of its agencies

App.92a
 Case 2:21-cv-01568-MTL Document 165 Filed 02/10/22 Page 2 of 3

1 or political subdivisions, or (ii) in any contract to be performed principally in the State of

2 Arizona. All Defendants except the City of Phoenix and President Joseph Biden are
3 further enjoined from denying government contracts to contractors domiciled in or
4 headquartered in the State of Arizona based on their refusal to agree to the inclusion of
5 such a clause.
6 3. There being no just reason for delay, the Clerk of Court is directed to enter
7 judgment, with prejudice, in favor of Plaintiffs the State of Arizona and Arizona Attorney
8 General Mark Brnovich, and against Federal Defendants, 1 on Count I of Plaintiffs’ Third
9 Amended Complaint (Doc. 134).
10 4. Counts III and IV, as asserted by Plaintiffs the State of Arizona and Arizona
11 1
The “Federal Defendants” are the United States of America; President Joseph Biden; the
United States Department of Homeland Security; the United States Office of Personnel
12 Management; the General Services Administration; the Safer Federal Workforce Task
Force; the United States Office of Management and Budget; the Centers for Disease
13 Control and Prevention; the Federal Acquisition Regulatory Council; the United States
Department of Justice; Alejandro Mayorkas, in his official capacity as Secretary of
14 Homeland Security; Troy Miller, in his official capacity as Senior Official Performing the
Duties of the Commissioner of U.S. Customs and Border Protection; Tae Johnson, in his
15 official capacity as Senior Official Performing the Duties of Director of U.S. Immigration
and Customs Enforcement; Ur Jaddou, in her official capacity as Director of the United
16 States Citizenship and Immigration Services; Kiran Ahuja, in her official capacity as
Director of the Office of Personnel Management and co-chair of the Safer Federal
17 Workforce Task Force; Robin Carnahan, in her official capacity as Administrator of the
General Services Administration and co-chair of the Safer Federal Workforce Task Force;
18 Shalanda Young, in her official capacity as Acting Director of the Office of Management
and Budget and member of the Safer Federal Workforce Task Force; Jeffrey Zients, in his
19 official capacity as COVID-19 Response Coordinator and co-chair of the Safer Federal
Workforce Task Force; L. Eric Patterson, in his official capacity as Director of the Federal
20 Protective Service and member of the Safer Federal Workforce Task Force; James Murray,
in his official capacity as Director of the United States Secret Service and member of the
21 Safer Federal Workforce Task Force; Deanne Criswell, in her official capacity as Director
of the Federal Emergency Management Agency and member of the Safer Federal
22 Workforce Task Force; Rochelle Walensky, in her official capacity as Director of the
Centers for Disease Control and Prevention and member of the Safer Federal Workforce
23 Task Force; Mathew Blum, in his official capacity as Chair of the Federal Acquisition
Regulatory Council and Acting Administrator of the Office of Federal Procurement Policy;
24 Lesley Field, in her official capacity as a member of the Federal Acquisition Regulatory
Council and Acting Administrator for Federal Procurement at the Office of Federal
25 Procurement Policy; Karla Jackson, in her official capacity as a member of the Federal
Acquisition Regulatory Council and Assistant Administrator for Procurement at the
26 National Aeronautics and Space Administration; Jeffrey Koses, in his official capacity as
a member of the Federal Acquisition Regulatory Council and Senior Procurement
27 Executive at the General Services Administration; John Tenaglia, in his official capacity
as a member of the Federal Acquisition Regulatory Council and Principal Director of
28 Defense Pricing and Contracting at the Department of Defense; and Merrick Garland, in
his official capacity as Attorney General of the United States.

-2-

App.93a
 Case 2:21-cv-01568-MTL Document 165 Filed 02/10/22 Page 3 of 3

1 Attorney General Mark Brnovich, are dismissed as nonjusticiable, insofar as they seek to
2 challenge the vaccination requirement for federal employees established pursuant to
3 Executive Order 14043 (the “Employee Mandate”). There being no just reason for delay,
4 the Clerk of Court is directed to enter judgment, without prejudice, against Plaintiffs the
5 State of Arizona and Arizona Attorney General Mark Brnovich, and in favor of Federal
6 Defendants, on Counts III and IV of Plaintiffs’ Third Amended Complaint, insofar as those
7 claims challenge the Employee Mandate.
8 5. There being no just reason for delay, the Clerk of Court is directed to enter
9 judgment, with prejudice, against Plaintiffs the State of Arizona and Arizona Attorney
10 General Mark Brnovich, and in favor of Federal Defendants, on Counts II, III, IV, V, VI,
11 VII, and VIII of Plaintiffs’ Third Amended Complaint, insofar as those claims challenge
12 the Contractor Mandate.
13 6. All claims asserted by Plaintiff Al Reble are dismissed as nonjusticiable.
14 There being no just reason for delay, the Clerk of Court is directed to enter judgment,
15 without prejudice, against Plaintiff Reble, and to dismiss him from this action.
16 7. There being no just reason for delay, the Clerk of Court is directed to enter
17 judgment, with prejudice, against Plaintiffs the Phoenix Law Enforcement Association and
18 United Phoenix Firefighters Association Local 493, and in favor of Defendant the City of
19 Phoenix, on Counts I, IV, and VI of Plaintiffs’ Third Amended Complaint. The Clerk of
20 Court is further directed to dismiss Plaintiffs the Phoenix Law Enforcement Association
21 and United Phoenix Firefighters Association Local 493, and Defendant the City of
22 Phoenix, from this action.
23 8. Counts IX–XIII of Plaintiffs’ Third Amended Complaint (the “Immigration
24 Counts”) remain pending. Accordingly, the Clerk of Court shall not close the case at this
25 time.
26 Dated this 10th day of February, 2022.
27
28

-3-

App.94a
 Case 2:21-cv-01568-MTL Document 166 Filed 02/10/22 Page 1 of 3

1
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
9 Mark Brnovich, et al., NO. CV-21-01568-PHX-MTL
10 Plaintiffs,
JUDGMENT IN A CIVIL CASE
11 v.
12 Joseph R Biden, et al.,
13 Defendants.
14
15 Decision by Court. This action came for consideration before the Court. The
16 issues have been considered and a decision has been rendered.

17 IT IS ORDERED AND ADJUDGED that there is no just reason to delay entry of

18 final judgment pursuant to Federal Rule of Civil Procedure 54(b).
19 Judgment is entered, with prejudice, in favor of Plaintiffs the State of Arizona and
20 Arizona Attorney General Mark Brnovich, and against Federal Defendants,1 on Count I
21 of Plaintiffs’ Third Amended Complaint.
22 1
The “Federal Defendants” are the United States of America; President Joseph Biden;
the United States Department of Homeland Security; the United States Office of
23 Personnel Management; the General Services Administration; the Safer Federal
Workforce Task Force; the United States Office of Management and Budget; the Centers
24 for Disease Control and Prevention; the Federal Acquisition Regulatory Council; the
United States Department of Justice; Alejandro Mayorkas, in his official capacity as
25 Secretary of Homeland Security; Troy Miller, in his official capacity as Senior Official
Performing the Duties of the Commissioner of U.S. Customs and Border Protection; Tae
26 Johnson, in his official capacity as Senior Official Performing the Duties of Director of
U.S. Immigration and Customs Enforcement; Ur Jaddou, in her official capacity as
27 Director of the United States Citizenship and Immigration Services; Kiran Ahuja, in her
official capacity as Director of the Office of Personnel Management and co-chair of the
28 Safer Federal Workforce Task Force; Robin Carnahan, in her official capacity as
Administrator of the General Services Administration and co-chair of the Safer Federal

App.95a
 Case 2:21-cv-01568-MTL Document 166 Filed 02/10/22 Page 2 of 3

1 Counts III and IV, as asserted by Plaintiffs the State of Arizona and Arizona Counts III
2 and IV, as asserted by Plaintiffs the State of Arizona and Arizona. Judgment is entered,
3 without prejudice, against Plaintiffs the State of Arizona and Arizona Attorney General
4 Mark Brnovich, and in favor of Federal Defendants, on Counts III and IV of Plaintiffs’
5 Third Amended Complaint, insofar as those claims challenge the Employee Mandate.
6 Judgment is entered with prejudice against Plaintiffs the State of Arizona and
7 Arizona Attorney General Mark Brnovich, and in favor of Federal Defendants, on Counts
8 II, III, IV, V, VI, VII, and VIII of Plaintiffs’ Third Amended Complaint, insofar as those
9 claims challenge the Contractor Mandate.
10 All claims asserted by Plaintiff Al Reble are dismissed as nonjusticiable. There
11 being no just reason for delay, judgment is entered, without prejudice, against Plaintiff
12 Reble, and dismissing him from this action.
13 Judgment is entered with prejudice, against Plaintiffs the Phoenix Law
14 Enforcement Association and United Phoenix Firefighters Association Local 493, and in
15 favor of Defendant the City of Phoenix, on Counts I, IV, and VI of Plaintiffs’ Third
16 Amended Complaint. Plaintiffs the Phoenix Law Enforcement Association and United
17
Workforce Task Force; Shalanda Young, in her official capacity as Acting Director of the
18 Office of Management and Budget and member of the Safer Federal Workforce Task
Force; Jeffrey Zients, in his official capacity as COVID-19 Response Coordinator and co-
19 chair of the Safer Federal Workforce Task Force; L. Eric Patterson, in his official
capacity as Director of the Federal Protective Service and member of the Safer Federal
20 Workforce Task Force; James Murray, in his official capacity as Director of the United
States Secret Service and member of the Safer Federal Workforce Task Force; Deanne
21 Criswell, in her official capacity as Director of the Federal Emergency Management
Agency and member of the Safer Federal Workforce Task Force; Rochelle Walensky, in
22 her official capacity as Director of the Centers for Disease Control and Prevention and
member of the Safer Federal Workforce Task Force; Mathew Blum, in his official
23 capacity as Chair of the Federal Acquisition Regulatory Council and Acting
Administrator of the Office of Federal Procurement Policy; Lesley Field, in her official
24 capacity as a member of the Federal Acquisition Regulatory Council and Acting
Administrator for Federal Procurement at the Office of Federal Procurement Policy;
25 Karla Jackson, in her official capacity as a member of the Federal Acquisition Regulatory
Council and Assistant Administrator for Procurement at the National Aeronautics and
26 Space Administration; Jeffrey Koses, in his official capacity as a member of the Federal
Acquisition Regulatory Council and Senior Procurement Executive at the General
27 Services Administration; John Tenaglia, in his official capacity as a member of the
Federal Acquisition Regulatory Council and Principal Director of Defense Pricing and
28 Contracting at the Department of Defense; and Merrick Garland, in his official capacity
as Attorney General of the United States.

-2-

App.96a
 Case 2:21-cv-01568-MTL Document 166 Filed 02/10/22 Page 3 of 3

1 Phoenix Firefighters Association Local 493, and Defendant the City of Phoenix, are
2 dismissed from this action.
3
4 Debra D. Lucas
District Court Executive/Clerk of Court
5
6 February 10, 2022
7 s/ L. Dixon
By Deputy Clerk
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-

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App.108a
 Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Presidential Documents 7045

Presidential Documents

Executive Order 13991 of January 20, 2021

Protecting the Federal Workforce and Requiring Mask-Wear-

ing

By the authority vested in me as President by the Constitution and the

laws of the United States of America, including section 7902(c) of title
5, United States Code, it is hereby ordered as follows:
Section 1. Policy. It is the policy of my Administration to halt the spread
of coronavirus disease 2019 (COVID–19) by relying on the best available
data and science-based public health measures. Such measures include wear-
ing masks when around others, physical distancing, and other related pre-
cautions recommended by the Centers for Disease Control and Prevention
(CDC). Put simply, masks and other public health measures reduce the
spread of the disease, particularly when communities make widespread use
of such measures, and thus save lives.
Accordingly, to protect the Federal workforce and individuals interacting
with the Federal workforce, and to ensure the continuity of Government
services and activities, on-duty or on-site Federal employees, on-site Federal
contractors, and other individuals in Federal buildings and on Federal lands
should all wear masks, maintain physical distance, and adhere to other
public health measures, as provided in CDC guidelines.
Sec. 2. Immediate Action Regarding Federal Employees, Contractors, Build-
ings, and Lands. (a) The heads of executive departments and agencies (agen-
cies) shall immediately take action, as appropriate and consistent with appli-
cable law, to require compliance with CDC guidelines with respect to wearing
masks, maintaining physical distance, and other public health measures
by: on-duty or on-site Federal employees; on-site Federal contractors; and
all persons in Federal buildings or on Federal lands.
(b) The Director of the Office of Management and Budget (OMB), the
Director of the Office of Personnel Management (OPM), and the Administrator
of General Services, in coordination with the President’s Management Council
and the Coordinator of the COVID–19 Response and Counselor to the Presi-
dent (COVID–19 Response Coordinator), shall promptly issue guidance to
assist heads of agencies with implementation of this section.
(c) Heads of agencies shall promptly consult, as appropriate, with State,
local, Tribal, and territorial government officials, Federal employees, Federal
employee unions, Federal contractors, and any other interested parties con-
cerning the implementation of this section.
(d) Heads of agencies may make categorical or case-by-case exceptions
in implementing subsection (a) of this section to the extent that doing
so is necessary or required by law, and consistent with applicable law.
If heads of agencies make such exceptions, they shall require appropriate
alternative safeguards, such as additional physical distancing measures, addi-
tional testing, or reconfiguration of workspace, consistent with applicable
law. Heads of agencies shall document all exceptions in writing.
jbell on DSKJLSW7X2PROD with EXECORD7

(e) Heads of agencies shall review their existing authorities and, to the
extent permitted by law and subject to the availability of appropriations
and resources, seek to provide masks to individuals in Federal buildings
when needed.
(f) The COVID–19 Response Coordinator shall coordinate the implementa-
tion of this section. Heads of the agencies listed in 31 U.S.C. 901(b) shall

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App.109a
 7046 Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Presidential Documents

update the COVID–19 Response Coordinator on their progress in imple-

menting this section, including any categorical exceptions established under
subsection (d) of this section, within 7 days of the date of this order and
regularly thereafter. Heads of agencies are encouraged to bring to the attention
of the COVID–19 Response Coordinator any questions regarding the scope
or implementation of this section.
Sec. 3. Encouraging Masking Across America. (a) The Secretary of Health
and Human Services (HHS), including through the Director of CDC, shall
engage, as appropriate, with State, local, Tribal, and territorial officials,
as well as business, union, academic, and other community leaders, regarding
mask-wearing and other public health measures, with the goal of maximizing
public compliance with, and addressing any obstacles to, mask-wearing and
other public health best practices identified by CDC.
(b) The COVID–19 Response Coordinator, in coordination with the Sec-
retary of HHS, the Secretary of Homeland Security, and the heads of other
relevant agencies, shall promptly identify and inform agencies of options
to incentivize, support, and encourage widespread mask-wearing consistent
with CDC guidelines and applicable law.
Sec. 4. Safer Federal Workforce Task Force.
(a) Establishment. There is hereby established the Safer Federal Workforce
Task Force (Task Force).
(b) Membership. The Task Force shall consist of the following members:
(i) the Director of OPM, who shall serve as Co-Chair;
(ii) the Administrator of General Services, who shall serve as Co-Chair;
(iii) the COVID–19 Response Coordinator, who shall serve as Co-Chair;
(iv) the Director of OMB;
(v) the Director of the Federal Protective Service;
(vi) the Director of the United States Secret Service;
(vii) the Administrator of the Federal Emergency Management Agency;
(viii) the Director of CDC; and
(ix) the heads of such other agencies as the Co-Chairs may individually
or jointly invite to participate.
(c) Organization. A member of the Task Force may designate, to perform
the Task Force functions of the member, a senior-level official who is a
full-time officer or employee of the member’s agency. At the direction of
the Co-Chairs, the Task Force may establish subgroups consisting exclusively
of Task Force members or their designees, as appropriate.
(d) Administration. The General Services Administration shall provide
funding and administrative support for the Task Force to the extent permitted
by law and within existing appropriations. The Co-Chairs shall convene
regular meetings of the Task Force, determine its agenda, and direct its
work.
(e) Mission. The Task Force shall provide ongoing guidance to heads
of agencies on the operation of the Federal Government, the safety of its
employees, and the continuity of Government functions during the COVID–
19 pandemic. Such guidance shall be based on public health best practices
as determined by CDC and other public health experts, and shall address,
at a minimum, the following subjects as they relate to the Federal workforce:
(i) testing methodologies and protocols;
(ii) case investigation and contact tracing;
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(iii) requirements of and limitations on physical distancing, including

recommended occupancy and density standards;
(iv) equipment needs and requirements, including personal protective
equipment;
(v) air filtration;

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App.110a
 Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Presidential Documents 7047

(vi) enhanced environmental disinfection and cleaning;

(vii) safe commuting and telework options;
(viii) enhanced technological infrastructure to support telework;
(ix) vaccine prioritization, distribution, and administration;
(x) approaches for coordinating with State, local, Tribal, and territorial
health officials, as well as business, union, academic, and other community
leaders;
(xi) any management infrastructure needed by agencies to implement public
health guidance; and
(xii) circumstances under which exemptions might appropriately be made
to agency policies in accordance with CDC guidelines, such as for mission-
critical purposes.
(f) Agency Cooperation. The head of each agency listed in 31 U.S.C.
901(b) shall, consistent with applicable law, promptly provide the Task
Force a report on COVID–19 safety protocols, safety plans, or guidance
regarding the operation of the agency and the safety of its employees, and
any other information that the head of the agency deems relevant to the
Task Force’s work.
Sec. 5. Federal Employee Testing. The Secretary of HHS, through the Director
of CDC, shall promptly develop and submit to the COVID–19 Response
Coordinator a testing plan for the Federal workforce. This plan shall be
based on community transmission metrics and address the populations to
be tested, testing types, frequency of testing, positive case protocols, and
coordination with local public health authorities for contact tracing.
Sec. 6. Research and Development. The Director of the Office of Science
and Technology Policy, in consultation with the Secretary of HHS (through
the National Science and Technology Council), the Director of OMB, the
Director of CDC, the Director of the National Institutes of Health, the Director
of the National Science Foundation, and the heads of any other appropriate
agencies, shall assess the availability of Federal research grants to study
best practices for implementing, and innovations to better implement, effec-
tive mask-wearing and physical distancing policies, with respect to both
the Federal workforce and the general public.
Sec. 7. Scope. (a) For purposes of this order:
(i) ‘‘Federal employees’’ and ‘‘Federal contractors’’ mean employees (in-
cluding members of the Armed Forces and members of the National Guard
in Federal service) and contractors (including such contractors’ employees)
working for the executive branch;
(ii) ‘‘Federal buildings’’ means buildings, or office space within buildings,
owned, rented, or leased by the executive branch of which a substantial
portion of occupants are Federal employees or Federal contractors; and
(iii) ‘‘Federal lands’’ means lands under executive branch control.
(b) The Director of OPM and the Administrator of General Services shall
seek to consult, in coordination with the heads of any other relevant agencies
and the COVID–19 Response Coordinator, with the Sergeants at Arms of
the Senate and the House of Representatives and the Director of the Adminis-
trative Office of the United States Courts (or such other persons designated
by the Majority and Minority Leaders of the Senate, the Speaker and Minority
Leader of the House, or the Chief Justice of the United States, respectively),
to promote mask-wearing, physical distancing, and adherence to other public
health measures within the legislative and judicial branches, and shall pro-
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vide requested technical assistance as needed to facilitate compliance with

CDC guidelines.
Sec. 8. General Provisions. (a) Nothing in this order shall be construed
to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency,
or the head thereof; or

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App.111a
 7048 Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Presidential Documents

(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and
subject to the availability of appropriations.
(c) Independent agencies are strongly encouraged to comply with the
requirements of this order.
(d) This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by any
party against the United States, its departments, agencies, or entities, its
officers, employees, or agents, or any other person.

THE WHITE HOUSE,

January 20, 2021.

[FR Doc. 2021–01766

Filed 1–22–21; 11:15 am]
Billing code 3295–F1–P
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BIDEN.EPS</GPH>

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App.112a
 Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Presidential Documents 50985

Presidential Documents

Executive Order 14042 of September 9, 2021

Ensuring Adequate COVID Safety Protocols for Federal Con-

tractors

By the authority vested in me as President by the Constitution and the

laws of the United States of America, including the Federal Property and
Administrative Services Act, 40 U.S.C. 101 et seq., and section 301 of
title 3, United States Code, and in order to promote economy and efficiency
in procurement by contracting with sources that provide adequate COVID–
19 safeguards for their workforce, it is hereby ordered as follows:
Section 1. Policy. This order promotes economy and efficiency in Federal
procurement by ensuring that the parties that contract with the Federal
Government provide adequate COVID–19 safeguards to their workers per-
forming on or in connection with a Federal Government contract or contract-
like instrument as described in section 5(a) of this order. These safeguards
will decrease the spread of COVID–19, which will decrease worker absence,
reduce labor costs, and improve the efficiency of contractors and subcontrac-
tors at sites where they are performing work for the Federal Government.
Accordingly, ensuring that Federal contractors and subcontractors are ade-
quately protected from COVID–19 will bolster economy and efficiency in
Federal procurement.
Sec. 2. Providing for Adequate COVID–19 Safety Protocols for Federal Con-
tractors and Subcontractors. (a) Executive departments and agencies, includ-
ing independent establishments subject to the Federal Property and Adminis-
trative Services Act, 40 U.S.C. 102(4)(A) (agencies), shall, to the extent
permitted by law, ensure that contracts and contract-like instruments (as
described in section 5(a) of this order) include a clause that the contractor
and any subcontractors (at any tier) shall incorporate into lower-tier sub-
contracts. This clause shall specify that the contractor or subcontractor shall,
for the duration of the contract, comply with all guidance for contractor
or subcontractor workplace locations published by the Safer Federal Work-
force Task Force (Task Force Guidance or Guidance), provided that the
Director of the Office of Management and Budget (Director) approves the
Task Force Guidance and determines that the Guidance, if adhered to by
contractors or subcontractors, will promote economy and efficiency in Federal
contracting. This clause shall apply to any workplace locations (as specified
by the Task Force Guidance) in which an individual is working on or
in connection with a Federal Government contract or contract-like instrument
(as described in section 5(a) of this order).
(b) By September 24, 2021, the Safer Federal Workforce Task Force (Task
Force) shall, as part of its issuance of Task Force Guidance, provide defini-
tions of relevant terms for contractors and subcontractors, explanations of
protocols required of contractors and subcontractors to comply with work-
place safety guidance, and any exceptions to Task Force Guidance that
apply to contractor and subcontractor workplace locations and individuals
in those locations working on or in connection with a Federal Government
tkelley on DSK125TN23PROD with PROC - E0

contract or contract-like instrument (as described in section 5(a) of this

order).
(c) Prior to the Task Force publishing new Guidance related to COVID–
19 for contractor or subcontractor workplace locations, including the Guid-
ance developed pursuant to subsection (b) of this section, the Director shall,
as an exercise of the delegation of my authority under the Federal Property

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App.113a
 50986 Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Presidential Documents

and Administrative Services Act, see 3 U.S.C. 301, determine whether such
Guidance will promote economy and efficiency in Federal contracting if
adhered to by Government contractors and subcontractors. Upon an affirma-
tive determination by the Director, the Director’s approval of the Guidance,
and subsequent issuance of such Guidance by the Task Force, contractors
and subcontractors working on or in connection with a Federal Government
contract or contract-like instrument (as described in section 5(a) of this
order), shall adhere to the requirements of the newly published Guidance,
in accordance with the clause described in subsection (a) of this section.
The Director shall publish such determination in the Federal Register.
(d) Nothing in this order shall excuse noncompliance with any applicable
State law or municipal ordinance establishing more protective safety proto-
cols than those established under this order or with any more protective
Federal law, regulation, or agency instructions for contractor or subcontractor
employees working at a Federal building or a federally controlled workplace.
(e) For purposes of this order, the term ‘‘contract or contract-like instru-
ment’’ shall have the meaning set forth in the Department of Labor’s proposed
rule, ‘‘Increasing the Minimum Wage for Federal Contractors,’’ 86 FR 38816,
38887 (July 22, 2021). If the Department of Labor issues a final rule relating
to that proposed rule, that term shall have the meaning set forth in that
final rule.
Sec. 3. Regulations and Implementation. (a) The Federal Acquisition Regu-
latory Council, to the extent permitted by law, shall amend the Federal
Acquisition Regulation to provide for inclusion in Federal procurement solici-
tations and contracts subject to this order the clause described in section
2(a) of this order, and shall, by October 8, 2021, take initial steps to imple-
ment appropriate policy direction to acquisition offices for use of the clause
by recommending that agencies exercise their authority under subpart 1.4
of the Federal Acquisition Regulation.
(b) By October 8, 2021, agencies shall take steps, to the extent permitted
by law, to exercise any applicable authority to ensure that contracts and
contract-like instruments as described in section 5(a) of this order that
are not subject to the Federal Acquisition Regulation and that are entered
into on or after October 15, 2021, consistent with the effective date of
such agency action, include the clause described in section 2(a) of this
order.
Sec. 4. Severability. If any provision of this order, or the application of
any provision of this order to any person or circumstance, is held to be
invalid, the remainder of this order and its application to any other person
or circumstance shall not be affected thereby.
Sec. 5. Applicability. (a) This order shall apply to any new contract; new
contract-like instrument; new solicitation for a contract or contract-like instru-
ment; extension or renewal of an existing contract or contract-like instrument;
and exercise of an option on an existing contract or contract-like instrument,
if:
(i) it is a procurement contract or contract-like instrument for services,
construction, or a leasehold interest in real property;
(ii) it is a contract or contract-like instrument for services covered by
the Service Contract Act, 41 U.S.C. 6701 et seq.;
(iii) it is a contract or contract-like instrument for concessions, including
any concessions contract excluded by Department of Labor regulations
at 29 CFR 4.133(b); or
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(iv) it is a contract or contract-like instrument entered into with the

Federal Government in connection with Federal property or lands and
related to offering services for Federal employees, their dependents, or
the general public;
(b) This order shall not apply to:
(i) grants;

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App.114a
 Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Presidential Documents 50987

(ii) contracts, contract-like instruments, or agreements with Indian Tribes

under the Indian Self-Determination and Education Assistance Act (Public
Law 93–638), as amended;
(iii) contracts or subcontracts whose value is equal to or less than the
simplified acquisition threshold, as that term is defined in section 2.101
of the Federal Acquisition Regulation;
(iv) employees who perform work outside the United States or its outlying
areas, as those terms are defined in section 2.101 of the Federal Acquisition
Regulation; or
(v) subcontracts solely for the provision of products.
Sec. 6. Effective Date. (a) Except as provided in subsection (b) of this
section, this order is effective immediately and shall apply to new contracts;
new contract-like instruments; new solicitations for contracts or contract-
like instruments; extensions or renewals of existing contracts or contract-
like instruments; and exercises of options on existing contracts or contract-
like instruments, as described in section 5(a) of this order, where the relevant
contract or contract-like instrument will be entered into, the relevant contract
or contract-like instrument will be extended or renewed, or the relevant
option will be exercised, on or after:
(i) October 15, 2021, consistent with the effective date for the action
taken by the Federal Acquisition Regulatory Council pursuant to section
3(a) of this order; or
(ii) for contracts and contract-like instruments that are not subject to
the Federal Acquisition Regulation and where an agency action is taken
pursuant to section 3(b) of this order, October 15, 2021, consistent with
the effective date for such action.
(b) As an exception to subsection (a) of this section, where agencies
have issued a solicitation before the effective date for the relevant action
taken pursuant to section 3 of this order and entered into a new contract
or contract-like instrument resulting from such solicitation within 30 days
of such effective date, such agencies are strongly encouraged to ensure
that the safety protocols specified in section 2 of this order are applied
in the new contract or contract-like instrument. But if that contract or
contract-like instrument term is subsequently extended or renewed, or an
option is subsequently exercised under that contract or contract-like instru-
ment, the safety protocols specified in section 2 of this order shall apply
to that extension, renewal, or option.
(c) For all existing contracts and contract-like instruments, solicitations
issued between the date of this order and the effective dates set forth
in this section, and contracts and contract-like instruments entered into
between the date of this order and the effective dates set forth in this
section, agencies are strongly encouraged, to the extent permitted by law,
to ensure that the safety protocols required under those contracts and con-
tract-like instruments are consistent with the requirements specified in sec-
tion 2 of this order.
Sec. 7. General Provisions. (a) Nothing in this order shall be construed
to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency,
or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and
tkelley on DSK125TN23PROD with PROC - E0

subject to the availability of appropriations.

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App.115a
 50988 Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Presidential Documents

(c) This order is not intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or entities, its officers,
employees, or agents, or any other person.

THE WHITE HOUSE,

September 9, 2021.

[FR Doc. 2021–19924

Filed 9–13–21; 8:45 am]
Billing code 3295–F1–P
tkelley on DSK125TN23PROD with PROC - E0

BIDEN.EPS</GPH>

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App.116a
 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Notices 53691

proposed information request may be that will not interfere with the minor’s Federal, State, Local, or Tribal
obtained by contacting the office listed schooling; and (2) conditions that will Government.
below in the FOR FURTHER INFORMATION not interfere with the minor’s health Total Respondents: WSP
CONTACT section of this Notice. and well-being. FLSA section 11(c) Applications: 10; Written Participation
DATES: Written comments must be requires all covered employers to make, Agreements: 500.
submitted to the office listed in the keep, and preserve records of their Total Annual Responses: WSP
ADDRESSES section below on or before employees’ wages, hours, and other Applications: 10.
November 29, 2021. conditions of employment. Section 11(c) Written Participation Agreements:
ADDRESSES: You may submit comments authorizes the Secretary of Labor to 1,000.
identified by Control Number 1235– prescribe the recordkeeping and Estimated Total Burden Hours: 1,529.
reporting requirements for these Estimated Time per Response: WSP
0024, by either one of the following
records. The regulations set forth Application: 121 minutes; Written
methods: Email: WHDPRAComments@
reporting requirements that include a Participation Agreements: 31 minutes.
dol.gov; Mail, Hand Delivery, Courier:
Work Study Program application and Frequency: On occasion.
Division of Regulations, Legislation, and Total Burden Cost (capital/startup):
Interpretation, Wage and Hour, U.S. written participation agreement. In
order to use the child labor work study $0.
Department of Labor, Room S–3502, 200
Constitution Avenue NW, Washington, provisions, § 570.37(b) requires a local Dated: September 20, 2021.
DC 20210. public or private school system to file Amy DeBisschop,
Instructions: Please submit one copy with the Wage and Hour Division Director, Division of Regulations, Legislation,
of your comments by only one method. Administrator an application for and Interpretation.
All submissions received must include approval of a Work Study Program as [FR Doc. 2021–20956 Filed 9–27–21; 8:45 am]
the agency name and Control Number one that does not interfere with the BILLING CODE 4510–27–P
identified above for this information schooling or health and well-being of
collection. Because we continue to the minors involved. The regulations
experience delays in receiving mail in also require preparation of a written OFFICE OF MANAGEMENT AND
the Washington, DC area, commenters participation agreement for each student BUDGET
are strongly encouraged to transmit their participating in a Work Study Program
comments electronically via email or to and that the teacher-coordinator, Determination of the Promotion of
submit them by mail early. Comments, employer, and student each sign the Economy and Efficiency in Federal
including any personal information agreement. Contracting Pursuant to Executive
provided, become a matter of public II. Review Focus: The Department of Order No. 14042
record. They will also be summarized Labor is particularly interested in
and/or included in the request for Office comments which: AGENCY: Executive Office of the
of Management and Budget (OMB) • Evaluate whether the proposed President, Office of Management and
approval of the information collection collection of information is necessary Budget.
request. for the proper performance of the ACTION: Notice of determination.
FOR FURTHER INFORMATION CONTACT: functions of the agency, including SUMMARY: The Director of the Office of
Robert Waterman, Division of whether the information will have Management and Budget determines
Regulations, Legislation, and practical utility; that compliance by Federal contractors
Interpretation, Wage and Hour Division, • Enhance the quality, utility, and and subcontractors with the COVID–19-
U.S. Department of Labor, Room clarity of the information to be workplace safety protocols detailed in
S–3502, 200 Constitution Avenue NW, collected; the Safer Federal Workforce Task Force
Washington, DC 20210; telephone: (202) • Evaluate the accuracy of the guidance issued on September 24, 2021
693–0406 (this is not a toll-free agency’s estimate of the burden of the will improve economy and efficiency by
number). Copies of this notice may be proposed collection of information, reducing absenteeism and decreasing
obtained in alternative formats (Rich including the validity of the labor costs for contractors and
Text Format (RTF) or text format (txt), methodology and assumptions used; subcontractors working on or in
a thumb drive, an MP3 file, large print, • Minimize the burden of the connection with a Federal Government
braille, audiotape, compact disc, or collection of information on those who contract.
other accessible format), upon request, are to respond, including through the
DATES: September 24, 2021.
by calling (202) 693–0023 (not a toll-free use of appropriate automated,
ADDRESSES: The Safer Federal
number). TTY/TTD callers may dial toll- electronic, mechanical, or other
technological collection techniques or Workforce Task Force Guidance for
free (877) 889–5627 to obtain
other forms of information technology, Federal Contractors and Subcontractors
information or request materials in
e.g., permitting electronic submissions on COVID–19 Workplace Safety is
alternative formats.
of responses. available at: https://
SUPPLEMENTARY INFORMATION:
III. Current Actions: The Department www.saferfederalworkforce.gov/new/.
I. Background: The Wage and Hour
Division (WHD) of the Department of of Labor seeks approval for an extension FOR FURTHER INFORMATION CONTACT:
Labor administers the Fair Labor of this information collection in order to Cristin Dorgelo, 725 17th Street N,
Standards Act (FLSA), 29 U.S.C. 201, et ensure effective administration of Work Email address: Cristin.a.dorgelo@
seq.. Section 3(l) of the Act establishes Study programs. omb.eop.gov, telephone number: (202)
a minimum age of 16 years for most Type of Review: Extension. 456–4066. Because of delays in the
non-agricultural employment, but Agency: Wage and Hour Division. receipt of regular mail related to
allows the employment of 14- and 15- Title: Work Study Program of the security screening, respondents are
year olds in occupations other than Child Labor Regulations. encouraged to use electronic
manufacturing and mining if the OMB Control Number: 1235–0024. communications.
Secretary of Labor determines such Affected Public: Business or other for- SUPPLEMENTARY INFORMATION: As
employment is confined to: (1) Periods profit, Not-for-profit institutions, Farms, explained in Executive Order No. 14042

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App.117a
 53692 Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Notices

on Ensuring Order on Ensuring Planning Commission, 401 Ninth Street (Please send comments by one method
Adequate COVID Safety Protocols for NW, Suite 500, Washington, DC 20004, only):
Federal Contractors, compliance with (202) 482–7229. • Federal eRulemaking Portal: http://
COVID–19-related safety protocols SUPPLEMENTARY INFORMATION: The www.regulations.gov. Follow the
improves economy and efficiency by following persons have been appointed instructions for submitting comments
reducing absenteeism and decreasing to serve as members of the Performance for NCUA Docket 2021–0102.
labor costs for contractors and Review Board for the National Capital • Fax: (703) 518–6319. Include
subcontractors working on or in Planning Commission from October 1, ‘‘[Your name] Comments on ‘‘Request
connection with a Federal Government 2021, to September 30, 2023: Paige for Information and Comment on Digital
contract. Section 2(c) of E.O. 14042 Cottingham-Streater, Executive Director, Assets and Related Technologies.’’
requires that, before Federal contractors Japan U.S. Friendship Commission; • Mail: Address to Melane Conyers-
and subcontractors must adhere to any John Farrell, Executive Director, U.S. Ausbrooks, Secretary of the Board,
guidance from the Safer Federal Arctic Research Commission; and National Credit Union Administration,
Workforce Task Force pursuant to Christopher J. Roscetti, Technical 1775 Duke Street, Alexandria, Virginia
Executive Order No. 14042, the Director Director, Defense Nuclear Facilities 22314–3428.
of the Office of Management and Budget Safety Board. • Hand Delivery/Courier: Same as
must determine that such guidance will mailing address.
Dated: September 22, 2021.
promote economy and efficiency in Public Inspection: You may view all
Debra L. Dickson, public comments on the Federal
Federal contracting if adhered to by
Government contractors and Director of Administration, National Capital eRulemaking Portal at http://
Planning Commission. www.regulations.gov as submitted,
subcontractors. Based on my review of
[FR Doc. 2021–20961 Filed 9–27–21; 8:45 am] except for those we cannot post for
the Safer Federal Workforce Task
Force’s COVID–19 Workplace Safety: BILLING CODE P technical reasons. NCUA will not edit or
Guidance for Federal Contractors and remove any identifying or contact
Subcontractors, scheduled for issuance information from the public comments
on September 24, 2021, and exercising NATIONAL CREDIT UNION submitted. Due to social distancing
the President’s authority under the ADMINISTRATION measures in effect, the usual
Federal Property and Administrative [NCUA 2021–0102] opportunity to inspect paper copies of
Services Act (see 3 U.S.C. 301I) comments in the NCUA’s law library is
delegated to me through Executive RIN 3133–AF39 not currently available. After social
Order No. 14042, I have determined that distancing measures are relaxed, visitors
Request for Information and Comment may make an appointment to review
compliance by Federal contractors and
on Digital Assets and Related paper copies by calling (703) 518–6540
subcontractors with the COVID–19-
Technologies or emailing [email protected].
workplace safety protocols detailed in
that guidance will improve economy AGENCY: National Credit Union FOR FURTHER INFORMATION CONTACT:
and efficiency by reducing absenteeism Administration (NCUA). Policy and Analysis: Scott Borger,
and decreasing labor costs for ACTION: Request for information and Senior Financial Modeler and Todd
contractors and subcontractors working comment; extension of comment period. Sims, National Payment Systems
on or in connection with a Federal Officer, Office of National Examinations
Government contract. SUMMARY: On July 27, 2021, the NCUA and Supervision, (703) 518–6640; Legal:
Board (Board) published in the Federal Thomas Zells, Senior Staff Attorney,
Shalanda Young, Register a document entitled ‘‘Request Office of General Counsel, (703) 518–
Acting Director, Office of Management and for Information and Comment on Digital
Budget.
6540; or by mail at National Credit
Assets and Related Technologies’’ (RFI) Union Administration, 1775 Duke
[FR Doc. 2021–21184 Filed 9–24–21; 4:15 pm] and invited comments from interested Street, Alexandria, VA 22314.
BILLING CODE 3110–01–P parties regarding the current and
SUPPLEMENTARY INFORMATION: On July
potential impact of activities connected
27, 2021, the Board published in the
to digital assets and related technologies
Federal Register an RFI inviting
NATIONAL CAPITAL PLANNING on federally insured credit unions
comments from interested parties
COMMISSION (FICUs), related entities, and the NCUA.
regarding the current and potential
The Board noted that it was broadly
Senior Executive Service; Performance impact of activities connected to digital
interested in receiving input on
Review Board; Members assets and related technologies on
commenters’ views in this area,
FICUs, related entities, and the NCUA.1
AGENCY: National Capital Planning including current and potential uses in
The Board published the RFI with the
Commission. the credit union system, and the risks
aim of engaging the broad credit union
associated with them. To allow
ACTION: Notice of members of senior industry and other stakeholders and
interested persons more time to
executive service performance review learning how emerging DLT and DeFi
consider and submit their comments,
board. applications are viewed and used. The
the Board has decided to extend the
RFI emphasized that the NCUA hopes to
SUMMARY: This notice announces the comment period for an additional 30
learn how the credit union community
membership of the National Capital days.
is using these emerging technologies
Planning Commission Senior Executive DATES: The comment period for the RFI and gain additional feedback as to the
Service Performance Review Board in published July 27, 2021, at 86 FR 40213, role the NCUA can play in safeguarding
accordance with section 4314(c) of Title is extended. Responses to the RFI must the financial system and consumers in
5, U.S.C. and 5 CFR 430.311. now be received on or before October the context of these emerging
FOR FURTHER INFORMATION CONTACT: 27, 2021. technologies. In order to continue to
Debra L. Dickson, Director of ADDRESSES: You may submit comments
Administration, National Capital by any one of the following methods 1 86 FR 40213 (July 27, 2021).

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 63418 Federal Register / Vol. 86, No. 218 / Tuesday, November 16, 2021 / Notices

Dated: November 11, 2021. Email address: cristin.a.dorgelo@ contractor and any subcontractors (at
Jessica L. Wechter, omb.eop.gov, telephone number: (202) any tier) shall incorporate into lower-
Special Assistant to the President, Legal 456–4066. Because of delays in the tier subcontracts. This clause shall
Services Corporation. receipt of regular mail related to specify that the contractor or
[FR Doc. 2021–25037 Filed 11–12–21; 11:15 am] security screening, respondents are subcontractor shall, for the duration of
BILLING CODE 7050–01–P encouraged to use electronic the contract, comply with all guidance
communications. for contractor or subcontractor
SUPPLEMENTARY INFORMATION: Section 2 workplace locations published by the
OFFICE OF MANAGEMENT AND of Executive Order 14042 (‘‘Executive Task Force, provided that the Director of
BUDGET Order 14042’’ or the ‘‘order’’) requires OMB approves the Task Force Guidance
that, before Federal contractors and and determines that the Guidance, if
Determination of the Acting OMB subcontractors must adhere to any adhered to by covered contractors, will
Director Regarding the Revised Safer guidance from the Task Force, the promote economy and efficiency in
Federal Workforce Task Force Director of OMB must approve such Federal contracting.
Guidance for Federal Contractors and guidance and determine that such The actions directed by the order will
the Revised Economy & Efficiency guidance will promote economy and ensure that parties who contract with
Analysis efficiency in Federal contracting if the Federal Government provide
adhered to by Government contractors COVID–19 safeguards in workplaces
AGENCY: Executive Office of the
and subcontractors. Based on my review with individuals working on or in
President, Office of Management and
of the Task Force’s COVID–19 connection with a Federal Government
Budget.
Workplace Safety: Guidance for Federal contract or contract-like instrument.
ACTION: Notice of determination; request These workplace safety protocols will
for comments. Contractors and Subcontractors,
scheduled for issuance on November 10, apply to all covered contractor
SUMMARY: The Director of the Office of 2021 (reproduced in relevant part in employees, including contractor or
Management and Budget (‘‘OMB’’) Part I below), as well as the economy- subcontractor employees in covered
determines that compliance by Federal and-efficiency analysis presented in Part contractor workplaces who are not
contractors and subcontractors with the II below, and exercising the President’s working on a Federal Government
COVID–19 workplace safety protocols authority under the Federal Property contract or contract-like instrument.
detailed in the Safer Federal Workforce and Administrative Services Act (see 3 These safeguards will decrease the
Task Force (‘‘Safer Federal Workforce U.S.C. 301) delegated to me through spread of SARS–CoV–2, the virus that
Task Force’’ or the ‘‘Task Force’’) Executive Order 14042, I approve the causes COVID–19, which will decrease
guidance (the ‘‘Guidance’’) to be issued Guidance and have determined that the worker absence, reduce labor costs, and
on November 10, 2021, will promote COVID–19-workplace safety protocols improve the efficiency of contractors
economy and efficiency in Federal detailed in that Guidance will promote and subcontractors performing work for
contracting by reducing absenteeism economy and efficiency in Federal the Federal Government.
and decreasing labor costs for Pursuant to this Guidance, and in
contracting if adhered to by Government
contractors and subcontractors working addition to any requirements or
contractors and subcontractors. This
on or in connection with a Federal workplace safety protocols that are
notice accordingly rescinds and
Government contract, and the Director applicable because a contractor or
supersedes my prior notice issued on
approves the guidance. This notice subcontractor employee is present at a
September 24, 2021. 86 FR 53691.
accordingly rescinds and supersedes the Federal workplace, Federal contractors
This notice consists of the following
Director’s prior notice issued on and subcontractors with a covered
sections. Part I consists of revised
September 24, 2021. contract will be required to conform to
Guidance from the Task Force. Part II
DATES: To be ensured consideration, the following workplace safety
consists of an economic analysis of the
comments must be received on or before protocols:
COVID–19-workplace safety protocols
December 16, 2021. detailed in such Guidance and the effect 1. COVID–19 vaccination of covered
ADDRESSES: You should submit on economy and efficiency in Federal contractor employees, except in limited
comments via the Federal eRulemaking circumstances where an employee is legally
procurement. Part III addresses
entitled to an accommodation;
Portal at https://www.regulations.gov/. procedural requirements. 2. Compliance by individuals, including
Follow the instructions for submitting covered contractor employees and visitors,
comments. Part I. Safer Federal Workforce Task
Force Guidance with the Guidance related to masking and
Please be advised OMB will post all physical distancing while in covered
comments received that relate to this On September 9, President Biden contractor workplaces; and
notice of determination on https:// announced his Path Out of the 3. Designation by covered contractors of a
www.regulations.gov without making Pandemic: COVID–19 Action Plan. One person or persons to coordinate COVID–19
any change to the comments or of the main goals of this science-based workplace safety efforts at covered contractor
redacting any information. plan is to get more people vaccinated. workplaces.
All comments posted are available As part of that plan, the President The order also sets out a process for
and accessible to the public. So, do not signed Executive Order 14042, Ensuring OMB and the Safer Federal Workforce
include any information you would not Adequate COVID Safety Protocols for Task Force to update the Guidance for
like to be made publicly available, such Federal Contractors, which directs covered contractors, which the Task
as Social Security numbers, personal
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executive departments and agencies, Force will consider doing based on

addresses, telephone numbers, and including independent establishments future changes to Centers for Disease
email addresses. It is the responsibility subject to the Federal Property and Control and Prevention (‘‘CDC’’)
of the commenter to safeguard personal Administrative Services Act, 40 U.S.C. COVID–19 guidance and as warranted
information. 102(4)(A), to ensure that covered by the circumstances of the pandemic
FOR FURTHER INFORMATION CONTACT: contracts and contract-like instruments and public health conditions. It also sets
Cristin Dorgelo, 725 17th Street NW, include a clause (‘‘the clause’’) that the out a process for the Federal Acquisition

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 Federal Register / Vol. 86, No. 218 / Tuesday, November 16, 2021 / Notices 63419

Regulatory Council (‘‘FAR Council’’) to under basic ordering agreements; letter be considered by the Task Force and
implement such protocols and guidance contracts; orders, such as purchase OMB for possible updating of this
for covered Federal procurement orders, under which the contract Guidance.
solicitations and contracts subject to the becomes effective by written acceptance For purposes of this Guidance, people
Federal Acquisition Regulation (‘‘FAR’’) or performance; exercised contract are considered fully vaccinated if they
and for agencies that are responsible for options; and bilateral contract have received COVID–19 vaccines
covered contracts and contract-like modifications. The term contract currently approved or authorized for
instruments not subject to the FAR to includes contracts covered by the emergency use by the U.S. Food and
take prompt action to ensure that those Service Contract Act, contracts covered Drug Administration (Pfizer-BioNTech,
covered contracts and contract-like by the Davis-Bacon Act, concessions Moderna, and Johnson & Johnson [J&J]/
instruments include the clause, contracts not otherwise subject to the Janssen COVID–19 vaccines) or COVID–
consistent with the order. Service Contract Act, and contracts in 19 vaccines that have been listed for
Covered contractors shall adhere to connection with Federal property or emergency use by the World Health
the requirements of this Guidance. land and related to offering services for Organization (e.g., AstraZeneca/Oxford).
Federal employees, their dependents, or More information is available at Interim
A. Definitions Clinical Considerations for Use of
the general public.
Community transmission—means the Contractor or subcontractor COVID–19 Vaccines | CDC.3
level of community transmission as set workplace location—means a location Clinical trial participants from a U.S.
forth in the CDC COVID–19 Data where covered contract employees site who are documented to have
Tracker County View.1 work, including a covered contractor received the full series of an ‘‘active’’
Contract and contract-like workplace or Federal workplace. (not placebo) COVID–19 vaccine
instrument—has the meaning set forth Covered contract—means any contract candidate, for which vaccine efficacy
in the Department of Labor’s proposed or contract-like instrument that includes has been independently confirmed (e.g.,
rule, ‘‘Increasing the Minimum Wage for the clause described in Section 2(a) of by a data and safety monitoring board),
Federal Contractors,’’ 86 FR 38816, the order. can be considered fully vaccinated two
38887 (July 22, 2021). If the Department Covered contractor—means a prime weeks after they have completed the
of Labor issues a final rule relating to contractor or subcontractor at any tier vaccine series. Currently, the Novavax
that proposed rule, this term shall have who is party to a covered contract. COVID–19 vaccine meets these criteria.
the meaning set forth in that final rule. Covered contractor employee—means More information is available at the
That proposed rule defines a contract any full-time or part-time employee of a CDC website.4
or contract-like instrument as an covered contractor working on or in Mask—means any mask that is
agreement between two or more parties connection with a covered contract or consistent with CDC recommendations.5
creating obligations that are enforceable working at a covered contractor This may include the following:
or otherwise recognizable at law. This workplace. This includes employees of Disposable masks, masks that fit
definition includes, but is not limited properly (snugly around the nose and
covered contractors who are not
to, a mutually binding legal relationship chin with no large gaps around the sides
themselves working on or in connection
obligating one party to furnish services of the face), masks made with breathable
with a covered contract.
(including construction) and another Covered contractor workplace— fabric (such as cotton), masks made with
party to pay for them. The term contract means a location controlled by a tightly woven fabric (i.e., fabrics that do
includes all contracts and any covered contractor at which any not let light pass through when held up
subcontracts of any tier thereunder, employee of a covered contractor to a light source), masks with two or
whether negotiated or advertised, working on or in connection with a three layers, masks with inner filter
including any procurement actions, covered contract is likely to be present pockets, and filtering facepiece
lease agreements, cooperative during the period of performance for a respirators that are approved by the
agreements, provider agreements, covered contract. A covered contractor National Institute for Occupational
intergovernmental service agreements, workplace does not include a covered Safety and Health or consistent with
service agreements, licenses, permits, or contractor employee’s residence. international standards. The following
any other type of agreement, regardless Federal workplace—means any place, do not constitute masks for purposes of
of nomenclature, type, or particular site, installation, building, room, or this Guidance: Masks with exhalation
form, and whether entered into verbally facility in which any Federal executive valves, vents, or other openings; face
or in writing. The term contract shall be department or agency conducts official shields only (without mask); or masks
interpreted broadly as to include, but business, or is within an executive with single-layer fabric or thin fabric
not be limited to, any contract within department or agency’s jurisdiction, that does not block light.
the definition provided in the FAR at 48 custody, or control. B. Requirements
CFR chapter 1 or applicable Federal Fully vaccinated—people are
statutes. This definition includes, but is Covered contractors are responsible
considered fully vaccinated for COVID– for ensuring that covered contractor
not limited to, any contract that may be 19 two weeks after they have received
covered under any Federal procurement employees comply with the workplace
the second dose in a two-dose series, or
statute. Contracts may be the result of two weeks after they have received a 3 CDC, Interim Clinical Considerations for Use of
competitive bidding or awarded to a single-dose vaccine.2 There is currently COVID–19 Vaccines, https://www.cdc.gov/vaccines/
single source under applicable authority no post-vaccination time limit on fully covid-19/clinical-considerations/covid-19-vaccines-
to do so. In addition to bilateral vaccinated status; should such a limit be us.html.
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4 CDC, People who received COVID–19 vaccine as

instruments, contracts include, but are determined by the Centers for Disease part of a clinical trial in the United States, https://
not limited to, awards and notices of Control and Prevention, that limit will www.cdc.gov/vaccines/covid-19/clinical-
awards; job orders or task letters issued considerations/covid-19-vaccines-
2 CDC, When You’ve Been Fully Vaccinated (last us.html#vaccinated-part-clinical-trail.
1 CDC, COVID–19 Integrated County View, updated Oct. 15, 2021), https://www.cdc.gov/ 5 CDC, Types of Masks and Respirators (Sept. 23,

https://covid.cdc.gov/covid-data-tracker/#county- coronavirus/2019-ncov/vaccines/fully- 2021), https://www.cdc.gov/coronavirus/2019-ncov/

view. vaccinated.html. prevent-getting-sick/types-of-masks.html.

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 63420 Federal Register / Vol. 86, No. 218 / Tuesday, November 16, 2021 / Notices

safety protocols detailed below. Covered exceptions, the covered contractor must In addition to the guidance set forth
contractor employees must also comply ensure these covered contractor below, CDC’s guidance for mask
with agency COVID–19 workplace employees are fully vaccinated within wearing and physical distancing in
safety requirements while in Federal 60 days of beginning work on a covered specific settings, including healthcare,
workplaces. contract or at a covered workplace. The transportation, correctional and
Consistent with applicable law, covered contractor must further ensure detention facilities, and schools, must
agencies are strongly encouraged to that such employees comply with be followed, as applicable.
incorporate a clause requiring masking and physical distancing In areas of high or substantial
compliance with this Guidance into requirements for not fully vaccinated community transmission, fully
contracts that are not covered or directly individuals in covered workplaces prior vaccinated people must wear a mask in
addressed by the order because the to being fully vaccinated. indoor settings, except for limited
contract is under the Simplified The covered contractor must review exceptions discussed in this Guidance.
Acquisition Threshold as defined in its covered employees’ documentation In areas of low or moderate community
section 2.101 of the FAR or is a contract to prove vaccination status. Covered transmission, fully vaccinated people do
or subcontract for the manufacturing of contractors must require covered not need to wear a mask. Fully
products. contractor employees to show or vaccinated individuals do not need to
Agencies are also strongly encouraged provide their employer with one of the physically distance regardless of the
to incorporate a clause requiring following documents: A copy of the level of transmission in the area.
compliance with this Guidance into record of immunization from a health Individuals who are not fully
existing contracts and contract-like care provider or pharmacy, a copy of the vaccinated must wear a mask indoors
instruments prior to the date upon COVID–19 Vaccination Record Card and in certain outdoor settings (see
which the order requires inclusion of (CDC Form MLS–319813_r, published below) regardless of the level of
the clause. on September 3, 2020), a copy of community transmission in the area. To
medical records documenting the the extent practicable, individuals who
1. Vaccination of Covered Contractor
Employees, Except in Limited vaccination, a copy of immunization are not fully vaccinated should maintain
Circumstances Where an Employee Is records from a public health or State a distance of at least six feet from others
Legally Entitled to an Accommodation immunization information system, or a at all times, including in offices,
copy of any other official conference rooms, and all other
Covered contractors must ensure that communal and work spaces.
all covered contractor employees are documentation verifying vaccination
Covered contractors must require
fully vaccinated for COVID–19, unless with information on the vaccine name,
individuals in covered contractor
the employee is legally entitled to an date(s) of administration, and the name
workplaces who are required to wear a
accommodation. Covered contractor of health care professional or clinic site
mask to:
employees must be fully vaccinated no administering vaccine. Covered • Wear appropriate masks
later than January 18, 2022. After that contractors may allow covered consistently and correctly (over mouth
date, all covered contractor employees contractor employees to show or and nose).
must be fully vaccinated by the first day provide to their employer a digital copy • Wear appropriate masks in any
of the period of performance on a newly of such records, including, for example, common areas or shared workspaces
awarded covered contract, and by the a digital photograph, scanned image, or (including open floorplan office space,
first day of the period of performance on PDF of such a record. cubicle embankments, and conference
an exercised option or extended or The covered contractor shall ensure rooms).
renewed contract when the clause has compliance with the requirements in • For individuals who are not fully
been incorporated into the covered this Guidance related to the showing or vaccinated, wear a mask in crowded
contract. provision of proper vaccination outdoor settings or during outdoor
A covered contractor may be required documentation. activities that involve sustained close
to provide an accommodation to Covered contractors are strongly contact with other people who are not
covered contractor employees who encouraged to incorporate similar fully vaccinated, consistent with CDC
communicate to the covered contractor vaccination requirements into their non- guidance.
that they are not vaccinated against covered contracts and agreements with A covered contractor may be required
COVID–19 because of a disability non-covered contractors whose to provide an accommodation to
(which would include medical employees perform work at covered covered contractor employees who
conditions) or because of a sincerely contractor workplaces but who do not communicate to the covered contractor
held religious belief, practice, or work on or in connection with a Federal that they cannot wear a mask because of
observance. A covered contractor contract, such as those contracts and a disability (which would include
should review and consider what, if agreements related to the provision of medical conditions) or because of a
any, accommodation it must offer. food services, onsite security, or sincerely held religious belief, practice,
Requests for ‘‘medical accommodation’’ groundskeeping services at covered or observance. A covered contractor
or ‘‘medical exceptions’’ should be contractor workplaces. should review and consider what, if
treated as requests for a disability any, accommodation it must offer.
2. Requirements Related To Masking
accommodation. Covered contractors may provide for
and Physical Distancing While in
Should a Federal agency have an exceptions to mask wearing and/or
Covered Contractor Workplaces
urgent, mission-critical need for a physical distancing requirements
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covered contractor to have covered Covered contractors must ensure that consistent with CDC guidelines, for
contractor employees begin work on a all individuals, including covered example, when an individual is alone in
covered contract or at a covered contractor employees and visitors, an office with floor to ceiling walls and
workplace before becoming fully comply with published CDC guidance a closed door, or for a limited time
vaccinated, the agency head may for masking and physical distancing at when eating or drinking and
approve an exception for the covered a covered contractor workplace, as maintaining appropriate distancing.
contractor—in the case of such limited discussed further in this Guidance. Covered contractors may also provide

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exceptions for covered contractor comprise some or all of their regular includes a purpose of ‘‘provid[ing] the
employees engaging in activities in duties. Federal Government with an
which a mask may get wet; high The designated individual (or economical and efficient system for . . .
intensity activities where covered individuals) must ensure that [p]rocuring and supplying property and
contractor employees are unable to wear information on required COVID–19 nonpersonal services.’’ 40 U.S.C. 101(1),
a mask because of difficulty breathing; workplace safety protocols is provided 121(a).
or activities for which wearing a mask to covered contractor employees and all This analysis of the economic impact
would create a risk to workplace health, other individuals likely to be present at of the Guidance is based on OMB’s
safety, or job duty as determined by a covered contractor workplaces, subject matter expertise and OMB’s
workplace risk assessment.6 Any such including by communicating the review and analysis of the academic
exceptions must be approved in writing required workplace safety protocols and literature on interventions to prevent
by a duly authorized representative of related policies by email, websites, the spread of COVID–19.
the covered contractor to ensure memoranda, flyers, or other means and As explained below, the overall effect
compliance with this Guidance at posting signage at covered contractor of enacting these protocols for Federal
covered contractor workplaces, as workplaces that sets forth the contractors and subcontractors will be
discussed further below. requirements and workplace safety to decrease the spread of COVID–19,
Masked individuals may be asked to protocols in this Guidance in a readily which will in turn decrease worker
lower their masks briefly for understandable manner. This includes absence, save labor costs on net, and
identification purposes in compliance communicating the COVID–19 thereby improve efficiency in Federal
with safety and security requirements. workplace safety protocols and contracting. Indeed, numerous private
Covered contractors must check the requirements related to masking and companies have undertaken vaccine
CDC COVID–19 Data Tracker County physical distancing to visitors and all mandates that were announced or take
View website for community other individuals present at covered effect before the Federal Government’s
transmission information in all areas contractor workplaces. The designated mandate on Federal contractors takes
where they have a covered contractor individual (or individuals) must also effect and private companies have also
workplace at least weekly to determine ensure that covered contractor imposed masking and physical
proper workplace safety protocols.7 employees comply with the distancing requirements at their
When the level of community requirements in this Guidance related to workplaces. Just as these private
transmission in the area of a covered the showing or provision of proper businesses have concluded that
contractor workplace increases from low vaccination documentation. vaccination, masking, and physical
or moderate to substantial or high, distancing requirements will make their
contractors and subcontractors should Frequently Asked Questions
operations more efficient and
put in place more protective workplace Frequently Asked Questions regarding competitive in the market, we have
safety protocols consistent with this Guidance can be found here: concluded that the Guidance will
published guidelines. However, when https://www.saferfederalworkforce.gov/ realize economy and efficiency in
the level of community transmission in faq/contractors/. Federal contracting.
the area of a covered contractor All Task Force Guidance, FAQs, and
workplace is reduced from high or additional information for Federal A. COVID–19 Infection Imposes
substantial to moderate or low, the level contractors and subcontractors can be Significant Costs on Contractors and the
of community transmission must remain found here: https://www.saferfederal Federal Government
at that lower level for at least two workforce.gov/contractors/. The primary goal of the safety
consecutive weeks before the covered protocols is to reduce the spread of
contractor utilizes those protocols Part II. Economy-and-Efficiency
Analysis COVID–19 among contractor employees.
recommended for areas of moderate or
COVID–19 is a highly communicable
low community transmission. The following analysis outlines the
disease that tends to spread between
ways in which the Guidance set forth in
3. Designation by Covered Contractors people who are indoors, sharing space,
Part I will promote economy and
of a Person or Persons To Coordinate and in close quarters—conditions
efficiency in Federal procurement.
COVID–19 Workplace Safety Efforts at The Guidance requires vaccination of common in typical workplaces.8 There
Covered Contractor Workplaces covered contractor employees, except in is also evidence that COVID–19 can be
Covered contractors shall designate a limited circumstances where an spread by asymptomatic individuals.
person or persons to coordinate employee is legally entitled to an One study estimated that more than half
implementation of and compliance with accommodation. It imposes of transmissions come from individuals
this Guidance and the workplace safety requirements related to masking and who do not have symptoms (Johansson
protocols detailed herein at covered physical distancing in covered et al., 2021). Individuals who do not
contractor workplaces. The designated contractor workplaces. And it requires have symptoms are likely to continue to
person or persons may be the same covered contractors to designate a report to work and therefore may spread
individual(s) responsible for person or persons to coordinate COVID– the disease to their coworkers. As such,
implementing any additional COVID–19 19 workplace safety efforts at covered safety protocols applied even in the
workplace safety protocols required by contractor workplaces. absence of observable illness among
local, State, or Federal law, and their The Guidance is issued pursuant to employees can meaningfully reduce the
responsibilities to coordinate COVID–19 Executive Order 14042, which the spread of COVID–19. Moreover, because
employees working at a single
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workplace safety protocols may President promulgated, in part, under

the Federal Property and Administrative workplace will regularly come into
6 OSHA, Recommended Practices for Safety and
Services Act (FPASA). The FPASA, 40 contact, safety protocols applied to all
Health Programs, https://www.osha.gov/safety- U.S.C. 101 et seq. provides that the
management. 8 See U.S. Environmental Protection Agency,
7 CDC, COVID–19 Integrated County View, President ‘‘may prescribe policies and Indoor Air and Coronavirus (COVID–19), https://
https://covid.cdc.gov/covid-data-tracker/#county- directives that the President considers www.epa.gov/coronavirus/indoor-air-and-
view. necessary to carry out’’ the Act, which coronavirus-covid-19.

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employees in a workplace can 2021). The vaccine requirement in the to occur among employees of Federal
meaningfully reduce the spread of Guidance buttresses other workplace- contractors. In fact, the experience of
COVID–19. specific safety protocols and provides private companies is to the contrary. For
The CDC recommends that protection against infection outside of example, United Airlines reported in
individuals remain isolated for ten days the workplace, increasing the likelihood October 2021 that 99.7 percent of the
after symptom onset, which would that the full set of protocols will prevent airline’s workforce complied with the
mean workers who catch the virus can infection and illness and preserve the vaccination requirements, Tyson Foods
miss up to eight days of work.9 productivity of people working on or in reported more than 96 percent of its
Furthermore, those individuals could connection with Federal contracts.11 workforce is now vaccinated, and
infect other workers, who would also Because vaccines are widely available healthcare providers such as California’s
miss eight days of work. Additional for free, the cost of implementing a Kaiser Permanente reported placing
exposed workers would likely need to vaccine mandate is largely limited to only two percent of employees on
quarantine and would also miss work. administrative costs associated with administrative leave for failing to
Workers unable to work generate distributing information about the comply with vaccine requirements.14
substantial costs on employers. An mandate and tracking employees’ And finally, even if some non-negligible
imperfect proxy for the cost to an vaccination status. Such costs are likely number of workers were to quit rather
employer of a foregone hour of work is to be small.12 Other costs of vaccination than comply with a vaccine mandate,
the worker’s hourly pay. We calculate include employees quitting and using the cost of replacing those workers
the average hourly wage for a Federal sick time when experiencing side effects would be a one-time cost, while the
contractor to be approximately $31.51, from vaccination. However, based on benefits of increased vaccination
making the average pay for eight days experiences shared by private (including among replacement workers,
$2,016.10 Wages are higher in companies detailed below, we expect who would be vaccinated) would be
Washington, DC, Maryland and few employees to quit because of the long-lasting.
Virginia, where many contractors are vaccine mandate, and side effects lead
located, ranging from $33.36 in Virginia to significantly less sick leave than C. Masking and Physical Distancing
to $42.83 in Washington, DC, making COVID–19 infection. And unlike Reduces Net Costs
the average pay for eight days in those COVID–19 infection, side effects are not COVID–19 is generally thought to be
areas $2,135 and $2,741, respectively. contagious to other employees. spread by respiratory particles and
Such costs are substantial and, if borne Consistent with the view that COVID– aerosols.15 Masking and physical
by contractors, such costs would be 19 vaccines promote economy and distancing have proven effective in
expected to be passed on to the Federal efficiency, numerous private companies reducing the spread of COVID–19. One
Government, either in direct cost or have undertaken vaccine mandates that study found that communities with the
lower quality, including delays. were announced or take effect before the greatest physical distancing had a 31
Fortunately, vaccines, masks, and Federal Government’s mandate on percent lower risk of COVID–19 than
physical distancing have all been Federal contractors takes effect. Led communities with poor physical
proven to reduce the prevalence of originally by companies like United distancing, and that communities where
COVID–19 infection, and vaccines have Airlines and Tyson Foods, a wide and individuals reported always using face
been shown to greatly reduce the growing swath of private companies masks outside of the home, even with
severity of breakthrough infections. And have determined that vaccine mandates poor physical distancing, had 62
vaccines, masking, and physical are net beneficial to their companies.13 percent reduced risk of COVID–19
distancing are all low-cost While anecdotal reports suggest that compared to communities where face
interventions. vaccine mandates may lead some masks were never worn (Kwon et al.,
B. COVID–19 Vaccination Reduces Net workers to quit their jobs rather than 2020). Another study found that full
Costs comply, which could create some cost population masking reduces
associated with replacing them, we transmission of the virus by 25.8
Requiring any workers who have not
know of no systematic evidence that percent (Leech et al., 2021). Similarly, a
yet done so to receive a COVID–19
this has been a widespread study of masking and ventilation
vaccine would generate meaningful
phenomenon, or that it would be likely improvements in Georgia schools found
efficiency gains for Federal contractors.
COVID–19 vaccines provide strong and that COVID–19 incidence was 37
11 Note that the other safety protocols discussed
persistent protection against infection, percent lower in schools where masks
above will still be appropriate even after the
illness, and hospitalization (see vaccine requirement is implemented, e.g., to protect
were required and 39 percent lower in
Tenforde, et al., 2021 and references). against breakthrough infections and emerging schools with improved ventilation
variants of the virus, or for the benefit of workers
Reducing the number of infected people who may be unable to receive a vaccine for medical 14 COVID Vaccine Some 5 Percent of
mechanically reduces transmission, and or religious reasons, until such time as public Unvaccinated Adults Have Quit Their Jobs Over a
some preliminary evidence also health conditions improve and CDC guidance Mandate Survey Shows CNBC (Oct. 28, 2021),
indicates that vaccines also reduce related to masking and physical distancing changes. https://www.cnbc.com/2021/10/28/covid-vaccine-
12 For example, the Occupational Safety and some-5percent-of-unvaccinated-adults-have-quit-
transmission by people who contract
Health Administration estimated that providing their-jobs-over-a-mandate-survey-shows.html; How
‘‘breakthrough’’ infections (Ke, et al., information would take ten minutes per firm (84 FR Tyson Foods Got 60,500 Workers to Get the
61476 cl. 3) and that tracking employees’ Coronavirus Vaccine Quickly, N.Y. Times (Nov. 4,
9 See Centers for Disease Control and Prevention, vaccination status would take five minutes per 2021), https://www.nytimes.com/2021/11/04/
Recommendations for Ending Isolation (last employee (id. 84 FR 61488 cl. 2). business/tyson-vaccine-mandate.html. Vaccine
updated Sept. 14, 2021), https://www.cdc.gov/ 13 The Major Companies Requiring mandates stoked fears of labor shortages. But
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coronavirus/2019-ncov/hcp/duration- Workers to Get COVID Vaccines, Fortune hospitals say they’re working, Washington Post
isolation.html#anchor_1631308518116. (Aug. 23, 2021), https://fortune.com/2021/08/23/ (Oct. 16, 2021), https://www.washingtonpost.com/
10 This calculation uses the distribution of companies-requiring-vaccines-workers-vaccination- health/2021/10/16/hospital-covid-vaccine-
NAICS codes in the contractor population and mandatory/. See greater discussion on page 12 of mandate/.
average salary of those NAICS codes from the the White House Vaccination Requirements Report 15 CDC, Prevent Getting Sick: How COVID

Occupational Employment and Wage Statistics (Oct. 2021), https://www.whitehouse.gov/wp- Spreads (last updated July 14, 2021), https://
program at the Bureau of Labor Statistics, https:// content/uploads/2021/10/Vaccination- www.cdc.gov/coronavirus/2019-ncov/prevent-
www.bls.gov/oes/. Requirements-Report.pdf. getting-sick/how-covid-spreads.html.

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(Gettings et al., 2021). This research Transmission from People Without circumstances make solicitation
shows that masking, physical COVID–19 Symptoms.’’ JAMA Network impracticable prior to the effective date
distancing, and improved ventilation Open 4(1): e2035057. of the coverage, such as when a new
Ke, Ruian, Pamela Martinez, Rebecca Lee
will all reduce the likelihood that statute must be implemented in a
Smith, et al. 2021. ‘‘Longitudinal
COVID–19 spreads among the contractor analysis of SARS–CoV–2 vaccine relative short period of time.’’
workforce. These preventative measures breakthrough infections reveal limited Urgent and compelling circumstances
will decrease worker absence and allow infectious virus shedding and restricted justify waiving the notice-and-comment
contract workers to continue their work tissue distribution.’’ Preprint, https:// requirement for this notice. This is a
without the need to take time off to www.medrxiv.org/content/10.1101/ once in a generation pandemic, which
recover from COVID–19. Thus, mask 2021.08.30.21262701v1. has already resulted in more than
wearing and physical distancing are Kwon, Sohee, Amit D. Joshi, Chun-Han Lo et 46,405,253 cases of COVID–19,
al. 2021. ‘‘Association of social hospitalized more than 3,283,045
likely to reduce the spread of COVID–
distancing and face mask use with risk Americans, and taken more than
19 within contractor workplaces, of COVID–19.’’ Nature Communications
reducing worker absence and 12.
752,196 American lives. The pandemic
maintaining productivity. Leech, Gavin, Charlie Rogers-Smith, Jonas B. continues to present an imminent threat
The costs of masking and physical Sandbrink et al. 2021. ‘‘Mass mask- to the health and safety of the American
distancing are minimal. For example, wearing notably reduces COVID–19 people, including due to the emergence
contractors may have to pay for masks transmission.’’ medRxiv. of the B.1.617.2 (Delta) variant, which is
for their employees. Masks can cost as Tenforde, Mark W., Wesley H. Self, Eric A. a variant of concern that spreads more
little as $0.13 per mask and would need Naioti, et al. 2021. ‘‘Sustained easily than previously discovered
Effectiveness of Pfizer-BioNTech and variants of SARS–CoV–2. This threat
to be provided only to employees who Moderna Vaccines Against COVID–19
do not already have their own masks.16 reaches all Americans, including those
Associated Hospitalizations Among
Physical distancing can often be done Adults—United States, March–July
working for Federal contractors and
without additional costs. Numerous 2021.’’ Morbidity and Mortality Weekly subcontractors. The Guidance directly
private companies like Walmart require Report 70(34): 1156–1162. addresses this imminent threat by
all employees to wear masks and requiring vaccination. The CDC has
Part III. Procedural Requirements determined that the best way to slow the
physically distance, embodying a
judgment that these mitigation measures A. Public Contract Requirements Under spread of COVID–19, including
promote economy and efficiency in the Public Law 111–350 preventing infection by the Delta
workplace.17 variant, is for individuals to get
I am making my determination vaccinated. According to the CDC,
D. Conclusion pursuant to a Presidential delegation vaccinated individuals are 5 times less
For these reasons, it is OMB’s expert under 3 U.S.C. 301. That determination likely to be infected and 10 times less
opinion that the Guidance will promote is therefore not subject to the procedural likely to experience hospitalization or
economy and efficiency in Federal requirements of Public Law 111–350, death due to COVID–19 than
Government procurement. All plans for codified at 41 U.S.C. 1707. See NRDC, unvaccinated individuals. The
economic recovery and growth are Inc. v. U.S. Dep’t of State, 658 F. Supp. Guidance thus promotes the most
predicated on the need to prevent 2d 105, 109 & n.5, 111 (D.D.C. 2009) important, urgent public health measure
additional spread of the COVID–19 (when an agency acts pursuant to 3 to slow the spread of COVID–19 among
virus and facilitate vaccinations, and no U.S.C. 301, the agency ‘‘stands in the Federal contractors and
employer, whether public or private, President’s shoes’’ and that action is subcontractors—which is critical to
can expect to see increased productivity ‘‘not reviewable under the APA’’); avoiding worker absence and
or economic efficiency without a Detroit Int’l Bridge Co. v. Canada, 189 unnecessary labor costs that could
healthy workforce. The safety protocols F. Supp. 3d 85, 100 (D.D.C. 2016) hinder the efficiency of federal
that are set forth by the Safer Federal (‘‘Several cases have concluded that an contracting.
Workforce Task Force are meant to agency’s action on behalf of the The minimum delay required by
ensure that COVID–19 does not easily President, involving discretionary subsections (a) and (b) of 41 U.S.C. 1707
spread within the workplace, so that authority committed to the President, is is also incompatible with a fundamental
Federal contractor employees can ‘presidential’ and unreviewable under purpose of issuing this determination.
continue to be productive. the APA.’’). To the extent that 41 U.S.C. The Guidance set forth in Part I changes
1707 is applicable to my determination the vaccination deadline for Federal
E. References set forth in this document, there are contractors from December 8, 2021, to
Gettings, Jenna, Michaila Czarnik, Elana urgent and compelling circumstances January 18, 2022. If the determination
Morris et al. 2021. ‘‘Mask Use and that justify departing from the notice- implementing this change were required
Ventilation Improvements to Reduce and-comment and delayed-effective- to comply with subsections (a) and (b)
COVID–19 Incidence in Elementary date requirements in 41 U.S.C. 1707. of 41 U.S.C. 1707 (requiring 30 days for
Schools—Georgia, November 16– The notice-and-comment and comment, and another 30 days to
December 11, 2020.’’ Morbidity and delayed-effective-date requirements of become effective), the earliest possible
Mortality Weekly Report 70(21): 779– subsections (a) and (b) of 41 U.S.C. 1707 effective date for this determination
784.
‘‘may be waived by the officer would be January 9, 2022. But waiting
Johansson, Michael A., Talia M. Quandelacy,
Sarah Kada et al. 2021. ‘‘SARS–CoV–2 authorized to issue a procurement until January for this determination to
policy, regulation, procedure, or form if become effective would prevent the
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16 Mask costs were taken from a search of Amazon urgent and compelling circumstances change in deadlines from having
and would likely be lower for a contractor who make compliance with the requirements practical effect, as Federal contractors
would be able to order in bulk. impracticable.’’ 41 U.S.C. 1707(d). This and subcontractors would still be legally
17 The Major Companies Requiring
statutory exception is implemented in obligated to meet the December 8, 2021,
Workers to Get COVID Vaccines, Fortune
(Aug. 23, 2021), https://fortune.com/2021/08/23/
FAR section 1.501–3, which provides vaccination deadline until this
companies-requiring-vaccines-workers-vaccination- that ‘‘[a]dvance comments need not be determination became effective. That
mandatory/. solicited when urgent and compelling alone establishes urgent and compelling

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 63424 Federal Register / Vol. 86, No. 218 / Tuesday, November 16, 2021 / Notices

circumstances to warrant making this deadline across all requirements will 1707, I have concluded that urgent and
determination immediately effective. promote consistency and compelling circumstances exist under
Additionally, even if there were no administrability of public health section 1707(d). The requirements of
prior deadline that contractors and standards, and eliminate potential this notice are accordingly effective
subcontractors were obligated to meet, confusion and frustration that disparate immediately upon filing with the
urgent and compelling circumstances deadlines could produce. It could also Federal Register. Additionally, to the
would still exist because the broader avoid needless costs in having multiple extent that it is found that my
economy-and-efficiency purpose of this systems of records and internal determination is subject to the
determination would be severely accountability established for different procedural requirements in 41 U.S.C.
undermined by the minimum delay deadlines. Ensuring that private 1707, this determination is temporary,
required under subsections (a) and (b) of employers do not need to meet different consistent with section 1707(e). And
41 U.S.C. 1707. As an initial matter, compliance dates across different regardless of whether this determination
such a delay would interfere with an Federal vaccination policies is thus is subject to the procedural
important purpose of the Task Force important to the success of their requirements in 41 U.S.C. 1707, I am
Guidance—aligning the vaccination vaccination programs and to promoting soliciting comment on all subjects of
deadline for Federal contractors with economy and efficiency in Federal this determination, which would also be
the vaccination deadline for private procurement. consistent with sections 1707(c) and (e),
companies under recent regulatory Moreover, in order for such alignment if those provisions applied.
actions. In particular, the Occupational to be effective, employers require
regulatory certainty in the near-term. An B. Administrative Procedure Act
Safety and Health Administration
(OSHA) issued an Emergency immediately effective notice gives My determination is not subject to the
Temporary Standard (ETS) requiring contractors and subcontractors a clear procedural rulemaking requirements of
employers with 100 or more employees understanding not only of their the Administrative Procedure Act
to ensure their workers are fully responsibilities under Federal law but (APA).
also the deadline for complying with As noted above, this determination is
vaccinated or tested for COVID–19 on at
those responsibilities. By contrast, pursuant to a delegation from the
least a weekly basis, and the Centers for
absent an immediately effective President under 3 U.S.C. 301. When any
Medicare & Medicaid Services (CMS)
determination of that deadline, such agency acts pursuant to such a
issued a rule requiring health care
employers would have to wait until delegation, the agency ‘‘stands in the
workers at facilities participating in
comments are received and a President’s shoes’’ and its actions
Medicare and Medicaid to be fully
determination is finalized to know with ‘‘cannot be subject to judicial review
vaccinated. 86 FR 61402; 86 FR 61555.
certainty the deadline for ensuring that under the APA.’’ NRDC v. State, 658 F.
Those rules set a deadline of January 4, Supp. 2d at 109 & n.5, 111.
2022, for employees to receive their their covered employees are fully
vaccinated. That would cause much of Even if the APA were applicable, the
final COVID–19 vaccination dose—i.e., notice-and-comment requirements of 5
January 18, 2022, for a fully vaccinated the administrability problems and
frustration that alignment is intended to U.S.C. 553 exempt ‘‘a matter relating to
covered workforce. The Task Force’s agency management or personnel or to
decision to set the same deadline for avoid, undermining the critical efforts to
curb the spread of COVID–19 among public property, loans, grants, benefits,
Federal contractors and subcontractors or contracts.’’ 5 U.S.C. 553(a)(2). This
will make it easier for private employers Federal contractors and subcontractors
and preventing alignment of the determination relates to procurement
to administer successful vaccination and contractors—i.e., ‘‘contracts’’ under
relevant deadlines.
policies across their workforce and will section 553(a)(2)—and is thus exempt
Compliance with the procedural
allow Federal contractors and requirements of 41 U.S.C. 1707(a) and from the APA’s notice-and-comment
subcontractors to implement their 1707(b) would fundamentally requirements.
requirements on the same timeline as undermine the effort to provide private Moreover, even if the notice-and-
other employers in their industries.18 companies with aligned deadlines and comment requirements of 5 U.S.C. 553
For example, a large employer covered regulatory certainty, as outlined above. were applicable, the good-cause
by the ETS may have some but not all As noted above, under those exception is satisfied here. 5 U.S.C.
of their workplaces covered by the requirements the earliest effective date 553(b)(3)(B) waives notice-and-comment
vaccination requirement for Federal for this determination would be January requirements if ‘‘the agency for good
contractors and subcontractors. For such 9, 2022. Simply put, that is far too late cause finds’’ that compliance would be
an employer, that would mean some to provide regulatory certainty for ‘‘impracticable, unnecessary, or contrary
workplaces are governed by the ETS and Federal contractors, as that is past the to the public interest.’’ Notice and
some by the Task Force Guidance. Or, date that covered employees of covered comment is impracticable in situations
an employer may have some workers Federal contractors must receive their where delay would result in harm. See,
covered by the CMS rule, and other final COVID–19 vaccination dose e.g., Mack Trucks, Inc. v. EPA, 682 F.3d
workers covered by the vaccination (January 4, 2022), and it is less than ten 87, 93 (D.C. Cir. 2012). Applicable
requirement for Federal contractors and days before the deadline for covered procedures are ‘‘[i]mpracticable’’ if ‘‘the
subcontractors. For employers in these contractor employees to be fully due and required execution of the
circumstances, having the same vaccinated (January 18, 2022). Thus, agency functions would be unavoidably
compliance with the procedural prevented by its undertaking public
18 Unlike the vaccination deadline for covered
requirements of 41 U.S.C. 1707(a) and rule-making proceedings’’ or negotiated
employees of Federal contractors, the vaccination
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deadline for Federal employees under Executive 1707(b) would undermine the success of rulemaking. N.J., Dep’t of Envtl. Prot. v.
Order 14043 does not require alignment with the Federal Government’s vaccination EPA, 626 F.2d 1038, 1046 (D.C. Cir.
private companies, because there is no subset of efforts and economy and efficiency in 1980) (quoting S. Doc. No. 248, at 200
private companies also subject to Executive Order Federal procurement. (1946)); see also United States v. Cotton,
14043. Thus, the exigencies of combatting the
global pandemic require maintaining the current
Thus, to the extent that it is found 760 F. Supp. 2d 116, 129 (D.D.C. 2011).
vaccination deadline for Federal employees of that my determination is subject to the Such ‘‘good cause’’ would also exempt
November 22, 2021. procedural requirements in 41 U.S.C. an agency from the delayed effective

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date under 5 U.S.C. 553(d). For the held by teleconference or Presenting and Multidisciplinary
reasons explained above, notice-and- videoconference. Works (review of applications): This
comment rulemaking and a delayed DATES: See the SUPPLEMENTARY
meeting will be closed.
effective date would be impracticable, INFORMATION section for individual
Date and time: December 7, 2021;
because the resulting delay in the meeting times and dates. All meetings 2:00 p.m. to 4:00 p.m.
effective date would not provide Federal are Eastern time and ending times are Museums (review of applications):
contractors and subcontractors approximate: This meeting will be closed.
sufficient time to ensure compliance in Date and time: December 8, 2021;
time for the January 18, 2022, National Endowment for the
ADDRESSES: 11:30 a.m. to 1:30 p.m.
vaccination deadline. Arts, Constitution Center, 400 7th St. Presenting and Multidisciplinary
* * * * * SW, Washington, DC 20506. Works (review of applications): This
FOR FURTHER INFORMATION CONTACT: meeting will be closed.
Shalanda Young, Further information with reference to Date and time: December 8, 2021;
Acting Director. these meetings can be obtained from Ms. 2:00 p.m. to 4:00 p.m.
[FR Doc. 2021–24949 Filed 11–10–21; 4:15 pm] Sherry P. Hale, Office of Guidelines & Arts Education (review of
BILLING CODE 3110–01–P Panel Operations, National Endowment applications): This meeting will be
for the Arts, Washington, DC 20506; closed.
[email protected], or call 202/682–5696. Date and time: December 9, 2021;
NATIONAL CREDIT UNION SUPPLEMENTARY INFORMATION: The 1:30 p.m. to 3:30 p.m.
ADMINISTRATION closed portions of meetings are for the Local Arts Agencies (review of
purpose of Panel review, discussion, applications): This meeting will be
Sunshine Act Meetings evaluation, and recommendations on closed.
financial assistance under the National Date and time: December 9, 2021;
TIME AND DATE: 10:00 a.m., Thursday, 1:00 p.m. to 3:00 p.m.
Foundation on the Arts and the
November 18, 2021. Local Arts Agencies (review of
Humanities Act of 1965, as amended,
PLACE: Due to the COVID–19 Pandemic, applications): This meeting will be
including information given in
the meeting will be open to the public confidence to the agency. In accordance closed.
via live webcast only. Visit the agency’s with the determination of the Chairman Date and time: December 9, 2021;
homepage (www.ncua.gov) and access of September 10, 2019, these sessions 3:30 p.m. to 5:30 p.m.
the provided webcast link. will be closed to the public pursuant to Presenting and Multidisciplinary
STATUS: This meeting will be open to the subsection (c)(6) of section 552b of title Works (review of applications): This
public. 5, United States Code. meeting will be closed.
MATTERS TO BE CONSIDERED: The upcoming meetings are: Date and time: December 9, 2021;
Our Town (review of applications): 2:00 p.m. to 4:00 p.m.
1. Board Briefing, Share Insurance
This meeting will be closed. Folk and Traditional Arts (review of
Quarterly Report.
Date and time: December 2, 2021; applications): This meeting will be
2. NCUA’s 2022–2026 Strategic Plan.
3. NCUA Rules and Regulations, Service 11:00 a.m. to 1:00 p.m. closed.
Facilities. Our Town (review of applications): Date and time: December 14, 2021;
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Examination Tools. Date and time: December 2, 2021; Folk and Traditional Arts (review of
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Safer Federal Workforce Task Force

COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors
Issued September 24, 2021

Introduction

On September 9, President Biden announced his Path Out of the Pandemic: COVID-19 Action
Plan. One of the main goals of this science-based plan is to get more people vaccinated.
As part of that plan, the President signed Executive Order 14042, Ensuring Adequate COVID
Safety Protocols for Federal Contractors, (“the order”) which directs executive departments and
agencies, including independent establishments subject to the Federal Property and
Administrative Services Act, 40 U.S.C. § 102(4)(A), to ensure that covered contracts and
contract-like instruments include a clause (“the clause”) that the contractor and any
subcontractors (at any tier) shall incorporate into lower-tier subcontracts. This clause shall
specify that the contractor or subcontractor shall, for the duration of the contract, comply with all
guidance for contractor or subcontractor workplace locations published by the Safer Federal
Workforce Task Force (“Task Force”), provided that the Director of the Office of Management
and Budget (“OMB”) approves the Task Force Guidance (the or this “Guidance”) and determines
that the Guidance, if adhered to by covered contractors, will promote economy and efficiency in
Federal contracting.

The actions directed by the order will ensure that parties who contract with the Federal
Government provide COVID-19 safeguards in workplaces with individuals working on or in
connection with a Federal Government contract or contract-like instrument. These workplace
safety protocols will apply to all covered contractor employees, including contractor or
subcontractor employees in covered contractor workplaces who are not working on a Federal
Government contract or contract-like instrument. These safeguards will decrease the spread of
SARS-CoV-2, the virus that causes COVID-19, which will decrease worker absence, reduce
labor costs, and improve the efficiency of contractors and subcontractors performing work for
the Federal Government.

Pursuant to this Guidance, and in addition to any requirements or workplace safety protocols that
are applicable because a contractor or subcontractor employee is present at a Federal workplace,
Federal contractors and subcontractors with a covered contract will be required to conform to the
following workplace safety protocols:

1. COVID-19 vaccination of covered contractor employees, except in limited circumstances

where an employee is legally entitled to an accommodation;
2. Compliance by individuals, including covered contractor employees and visitors, with the
Guidance related to masking and physical distancing while in covered contractor
workplaces; and
3. Designation by covered contractors of a person or persons to coordinate COVID-19
workplace safety efforts at covered contractor workplaces.

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The order also sets out a process for OMB and the Safer Federal Workforce Task Force to update
the Guidance for covered contractors, which the Task Force will consider doing based on future
changes to Centers for Disease Control and Prevention (“CDC”) COVID-19 guidance and as
warranted by the circumstances of the pandemic and public health conditions. It also sets out a
process for the Federal Acquisition Regulatory Council (“FAR Council”) to implement such
protocols and guidance for covered Federal procurement solicitations and contracts subject to the
Federal Acquisition Regulation (“FAR”) and for agencies that are responsible for covered
contracts and contract-like instruments not subject to the FAR to take prompt action to ensure
that those covered contracts and contract-like instruments include the clause, consistent with the
order.

Covered contractors shall adhere to the requirements of this Guidance. The Director of OMB
has, as authorized by Executive Order 14042, approved this Guidance and has, an exercise of the
delegation of authority (see 3 U.S.C. § 301) under the Federal Property and Administrative
Services Act determined that this Guidance will promote economy and efficiency in Federal
contracting if adhered to by Government contractors and subcontractors. The Director has
published such determination in the Federal Register.

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Definitions

Community transmission – means the level of community transmission as set forth in the CDC
COVID-19 Data Tracker County View.

Contract and contract-like instrument – has the meaning set forth in the Department of Labor’s
proposed rule, “Increasing the Minimum Wage for Federal Contractors,” 86 Fed. Reg. 38,816,
38,887 (July 22, 2021). If the Department of Labor issues a final rule relating to that proposed
rule, this term shall have the meaning set forth in that final rule.

That proposed rule defines a contract or contract-like instrument as an agreement between two or
more parties creating obligations that are enforceable or otherwise recognizable at law. This
definition includes, but is not limited to, a mutually binding legal relationship obligating one
party to furnish services (including construction) and another party to pay for them. The
term contract includes all contracts and any subcontracts of any tier thereunder, whether
negotiated or advertised, including any procurement actions, lease agreements, cooperative
agreements, provider agreements, intergovernmental service agreements, service agreements,
licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular
form, and whether entered into verbally or in writing. The term contract shall be interpreted
broadly as to include, but not be limited to, any contract within the definition provided in the
FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not
limited to, any contract that may be covered under any Federal procurement statute. Contracts
may be the result of competitive bidding or awarded to a single source under applicable authority
to do so. In addition to bilateral instruments, contracts include, but are not limited to, awards and
notices of awards; job orders or task letters issued under basic ordering agreements; letter
contracts; orders, such as purchase orders, under which the contract becomes effective by written
acceptance or performance; exercised contract options; and bilateral contract modifications. The
term contract includes contracts covered by the Service Contract Act, contracts covered by the
Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and
contracts in connection with Federal property or land and related to offering services for Federal
employees, their dependents, or the general public.

Contractor or subcontractor workplace location
– means a location where covered contract

employees work, including a covered contractor workplace or Federal workplace.

Covered contract – means any contract or contract-like instrument that includes the clause
described in Section 2(a) of the order.

Covered contractor – means a prime contractor or subcontractor at any tier who is party to a
covered contract.

Covered contractor employee – means any full-time or part-time employee of a covered

contractor working on or in connection with a covered contract or working at a covered

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contractor workplace. This includes employees of covered contractors who are not themselves
working on or in connection with a covered contract.

Covered contractor workplace – means a location controlled by a covered contractor at which

any employee of a covered contractor working on or in connection with a covered contract is
likely to be present during the period of performance for a covered contract. A covered contractor
workplace does not include a covered contractor employee’s residence.

Federal workplace – means any place, site, installation, building, room, or facility in which any
Federal executive department or agency conducts official business, or is within an executive
department or agency’s jurisdiction, custody, or control.

Fully vaccinated – People are considered fully vaccinated for COVID-19 two weeks after they
have received the second dose in a two-dose series, or two weeks after they have received a
single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status;
should such a limit be determined by the Centers for Disease Control and Prevention, that limit
will be considered by the Task Force and OMB for possible updating of this Guidance.

For purposes of this Guidance, people are considered fully vaccinated if they have received
COVID-19 vaccines currently approved or authorized for emergency use by the U.S. Food and
Drug Administration (Pfizer-BioNTech, Moderna, and Johnson & Johnson [J&J]/Janssen
COVID-19 vaccines) or COVID-19 vaccines that have been listed for emergency use by the
World Health Organization (e.g., AstraZeneca/Oxford). More information is available at Interim
Clinical Considerations for Use of COVID-19 Vaccines | CDC.

Clinical trial participants from a U.S. site who are documented to have received the full series of
an “active” (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy has been
independently confirmed (e.g., by a data and safety monitoring board), can be considered fully
vaccinated two weeks after they have completed the vaccine series. Currently, the Novavax
COVID-19 vaccine meets these criteria. More information is available at the CDC website here.

Mask – means any mask that is consistent with CDC recommendations as set forth in Types of
Masks and Respirators | CDC. This may include the following: disposable masks, masks that fit
properly (snugly around the nose and chin with no large gaps around the sides of the face),
masks made with breathable fabric (such as cotton), masks made with tightly woven fabric (i.e.,
fabrics that do not let light pass through when held up to a light source), masks with two or three
layers, masks with inner filter pockets, and filtering facepiece respirators that are approved by
the National Institute for Occupational Safety and Health or consistent with international
standards. The following do not constitute masks for purposes of this Guidance: masks with
exhalation valves, vents, or other openings; face shields only (without mask); or masks with
single-layer fabric or thin fabric that does not block light.

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Guidance

Covered contractors are responsible for ensuring that covered contractor employees comply with
the workplace safety protocols detailed below. Covered contractor employees must also comply
with agency COVID-19 workplace safety requirements while in Federal workplaces.

Consistent with applicable law, agencies are strongly encouraged to incorporate a clause
requiring compliance with this Guidance into contracts that are not covered or directly addressed
by the order because the contract is under the Simplified Acquisition Threshold as defined in
section 2.101 of the FAR or is a contract or subcontract for the manufacturing of products.
Agencies are also strongly encouraged to incorporate a clause requiring compliance with this
Guidance into existing contracts and contract-like instruments prior to the date upon which the
order requires inclusion of the clause.

1. Vaccination of covered contractor employees, except in limited circumstances where an

employee is legally entitled to an accommodation

Covered contractors must ensure that all covered contractor employees are fully vaccinated for
COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor
employees must be fully vaccinated no later than December 8, 2021. After that date, all covered
contractor employees must be fully vaccinated by the first day of the period of performance on a
newly awarded covered contract, and by the first day of the period of performance on an
exercised option or extended or renewed contract when the clause has been incorporated into the
covered contract.

A covered contractor may be required to provide an accommodation to covered contractor

employees who communicate to the covered contractor that they are not vaccinated against
COVID-19 because of a disability (which would include medical conditions) or because of a
sincerely held religious belief, practice, or observance. A covered contractor should review and
consider what, if any, accommodation it must offer. Requests for “medical accommodation” or
“medical exceptions” should be treated as requests for a disability accommodation.

Should a Federal agency have an urgent, mission-critical need for a covered contractor to have
covered contractor employees begin work on a covered contract or at a covered workplace before
becoming fully vaccinated, the agency head may approve an exception for the covered contractor
—in the case of such limited exceptions, the covered contractor must ensure these covered
contractor employees are fully vaccinated within 60 days of beginning work on a covered
contract or at a covered workplace. The covered contractor must further ensure that such
employees comply with masking and physical distancing requirements for not fully vaccinated
individuals in covered workplaces prior to being fully vaccinated.

The covered contractor must review its covered employees’ documentation to prove vaccination
status. Covered contractors must require covered contractor employees to show or provide their

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employer with one of the following documents: a copy of the record of immunization from a
health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form
MLS-319813_r, published on September 3, 2020), a copy of medical records documenting the
vaccination, a copy of immunization records from a public health or State immunization
information system, or a copy of any other official documentation verifying vaccination with
information on the vaccine name, date(s) of administration, and the name of health care
professional or clinic site administering vaccine. Covered contractors may allow covered
contractor employees to show or provide to their employer a digital copy of such records,
including, for example, a digital photograph, scanned image, or PDF of such a record.

The covered contractor shall ensure compliance with the requirements in this Guidance related to
the showing or provision of proper vaccination documentation.

Covered contractors are strongly encouraged to incorporate similar vaccination requirements into
their non-covered contracts and agreements with non-covered contractors whose employees
perform work at covered contractor workplaces but who do not work on or in connection with a
Federal contract, such as those contracts and agreements related to the provision of food services,
onsite security, or groundskeeping services at covered contractor workplaces.

2. Requirements related to masking and physical distancing while in covered contractor

workplaces

Covered contractors must ensure that all individuals, including covered contractor employees
and visitors, comply with published CDC guidance for masking and physical distancing at a
covered contractor workplace, as discussed further in this Guidance.

In addition to the guidance set forth below, CDC’s guidance for mask wearing and physical
distancing in specific settings, including healthcare, transportation, correctional and detention
facilities, and schools, must be followed, as applicable.

In areas of high or substantial community transmission, fully vaccinated people must wear a
mask in indoor settings, except for limited exceptions discussed in this Guidance. In areas of low
or moderate community transmission, fully vaccinated people do not need to wear a mask. Fully
vaccinated individuals do not need to physically distance regardless of the level of transmission
in the area.

Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor
settings (see below) regardless of the level of community transmission in the area. To the extent
practicable, individuals who are not fully vaccinated should maintain a distance of at least six
feet from others at all times, including in offices, conference rooms, and all other communal and
work spaces.

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Covered contractors must require individuals in covered contractor workplaces who are required
to wear a mask to:
• Wear appropriate masks consistently and correctly (over mouth and nose).
• Wear appropriate masks in any common areas or shared workspaces (including open
floorplan office space, cubicle embankments, and conference rooms).
• For individuals who are not fully vaccinated, wear a mask in crowded outdoor settings or
during outdoor activities that involve sustained close contact with other people who are
not fully vaccinated, consistent with CDC guidance.

A covered contractor may be required to provide an accommodation to covered contractor

employees who communicate to the covered contractor that they cannot wear a mask because of
a disability (which would include medical conditions) or because of a sincerely held religious
belief, practice, or observance. A covered contractor should review and consider what, if any,
accommodation it must offer.

Covered contractors may provide for exceptions to mask wearing and/or physical distancing
requirements consistent with CDC guidelines, for example, when an individual is alone in an
office with floor to ceiling walls and a closed door, or for a limited time when eating or drinking
and maintaining appropriate distancing. Covered contractors may also provide exceptions for
covered contractor employees engaging in activities in which a mask may get wet; high intensity
activities where covered contractor employees are unable to wear a mask because of difficulty
breathing; or activities for which wearing a mask would create a risk to workplace health, safety,
or job duty as determined by a workplace risk assessment. Any such exceptions must be
approved in writing by a duly authorized representative of the covered contractor to ensure
compliance with this Guidance at covered contractor workplaces, as discussed further below.

Masked individuals may be asked to lower their masks briefly for identification purposes in
compliance with safety and security requirements.

Covered contractors must check the CDC COVID-19 Data Tracker County View website for
community transmission information in all areas where they have a covered contractor
workplace at least weekly to determine proper workplace safety protocols. When the level of
community transmission in the area of a covered contractor workplace increases from low or
moderate to substantial or high, contractors and subcontractors should put in place more
protective workplace safety protocols consistent with published guidelines. However, when the
level of community transmission in the area of a covered contractor workplace is reduced from
high or substantial to moderate or low, the level of community transmission must remain at that
lower level for at least two consecutive weeks before the covered contractor utilizes those
protocols recommended for areas of moderate or low community transmission.

3. Designation by covered contractors of a person or persons to coordinate COVID-19

workplace safety efforts at covered contractor workplaces.

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Covered contractors shall designate a person or persons to coordinate implementation of and

compliance with this Guidance and the workplace safety protocols detailed herein at covered
contractor workplaces. The designated person or persons may be the same individual(s)
responsible for implementing any additional COVID-19 workplace safety protocols required by
local, State, or Federal law, and their responsibilities to coordinate COVID-19 workplace safety
protocols may comprise some or all of their regular duties.

The designated individual (or individuals) must ensure that information on required COVID-19
workplace safety protocols is provided to covered contractor employees and all other individuals
likely to be present at covered contractor workplaces, including by communicating the required
workplace safety protocols and related policies by email, websites, memoranda, flyers, or other
means and posting signage at covered contractor workplaces that sets forth the requirements and
workplace safety protocols in this Guidance in a readily understandable manner. This includes
communicating the COVID-19 workplace safety protocols and requirements related to masking
and physical distancing to visitors and all other individuals present at covered contractor
workplaces. The designated individual (or individuals) must also ensure that covered contractor
employees comply with the requirements in this guidance related to the showing or provision of
proper vaccination documentation.

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Frequently Asked Questions

Vaccination and Safety Protocols

Q1: How do covered contractors determine vaccination status of visitors to covered

contractor workplaces?

A: Covered contractors should post signage at entrances to covered contractor workplaces

providing information on safety protocols for fully vaccinated and not fully vaccinated
individuals, including the protocols defined in the masking and physical distancing section
above, and instruct individuals to follow the appropriate workplace safety protocols while at the
covered contractor workplace. Covered contractors may take other reasonable steps, such as by
communicating workplace safety protocols to visitors prior to their arrival at a covered
contractor workplace or requiring all visitors to follow masking and physical distancing
protocols for not fully vaccinated individuals.

Q2: Do covered contractors need to provide onsite vaccinations to their employees?

A: Covered contractors should ensure their employees are aware of convenient opportunities to
be vaccinated. Although covered contractors may choose to provide vaccinations at their
facilities or workplaces, given the widespread availability of vaccinations, covered contractors
are not required to do so.

Q3: What should a contractor employee do if a covered contractor employee has lost or
does not have a copy of required vaccination documentation?

A: If covered contractor employees need new vaccination cards or copies of other documentation
proof of vaccination, they should contact the vaccination provider site where they received their
vaccine. Their provider should be able to provide them with new cards or documentation with
up-to-date information about the vaccinations they have received. If the location where the
covered contractor employees received their COVID-19 vaccine is no longer operating, the
covered contractor employees should contact their State or local health department’s
immunization information system (IIS) for assistance. Covered contractor employees should
contact their State or local health department if they have additional questions about vaccination
cards or vaccination records.

An attestation of vaccination by the covered contractor employee is not an acceptable substitute

for documentation of proof of vaccination.

Q4: Who is responsible for determining if a covered contractor employee must be provided
an accommodation because of a disability or because of a sincerely held religious belief,
practice, or observance?

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A: A covered contractor may be required to provide an accommodation to contractor employees

who communicate to the covered contractor that they are not vaccinated for COVID-19, or that
they cannot wear a mask, because of a disability (which would include medical conditions) or
because of a sincerely held religious belief, practice, or observance. A covered contractor should
review and consider what, if any, accommodation it must offer. The contractor is responsible for
considering, and dispositioning, such requests for accommodations regardless of the covered
contractor employee’s place of performance. If the agency that is the party to the covered
contract is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title
VII of the Civil Rights Act, both the agency and the covered contractor should review and
consider what, if any, accommodation they must offer.

Q5: Are covered contractor employees who have a prior COVID-19 infection required to be
vaccinated?

A: Yes, covered contractor employees who have had a prior COVID-19 infection are required to
be vaccinated. More information from CDC can be found here.

Q6: Can a covered contractor accept a recent antibody test from a covered contractor
employee to prove vaccination status?

A: No. A covered contractor cannot accept a recent antibody test from a covered contractor
employee to prove vaccination status.

Workplaces

Q7: Does this Guidance apply to outdoor contractor or subcontractor workplace locations?

A: Yes, this Guidance applies to contractor or subcontractor workplace locations that are
outdoors.

Q8: If a covered contractor employee is likely to be present during the period of

performance for a covered contract on only one floor or a separate area of a building, site,
or facility controlled by a covered contractor, do other areas of the building, site, or facility
controlled by a covered contractor constitute a covered contractor workplace?

A: Yes, unless a covered contractor can affirmatively determine that none of its employees on
another floor or in separate areas of the building will come into contact with a covered contractor
employee during the period of performance of a covered contract. This would include
affirmatively determining that there will be no interactions between covered contractor
employees and non-covered contractor employees in those locations during the period of
performance on a covered contract, including interactions through use of common areas such as
lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and
parking garages.

10

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Q9: If a covered contractor employee performs their duties in or at only one building, site,
or facility on a campus controlled by a covered contractor with multiple buildings, sites, or
facilities, are the other buildings, sites, or facility controlled by a covered contractor
considered a covered contractor workplace?

A: Yes, unless a covered contractor can affirmatively determine that none of its employees in or
at one building, site, or facility will come into contact with a covered contractor employee during
the period of performance of a covered contract. This would include affirmatively determining
that there will be no interactions between covered contractor employees and non-covered
contractor employees in those locations during the period of performance on a covered contract,
including interactions through use of common areas such as lobbies, security clearance areas,
elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

Q10: Are the workplace safety protocols enumerated above the same irrespective of
whether the work is performed at a covered contractor workplace or at a Federal
workplace?

A: Yes. The Guidance applies to all covered contractor employees and to all contractor or
subcontractor workplace locations. While at a Federal workplace, covered contractor employees
must also comply with any additional agency workplace safety requirements for that workplace.
Because covered contractor employees working on a covered contract need to be fully
vaccinated after December 8, 2021, covered contractor employees who work only at a Federal
workplace need to be fully vaccinated by that date as well, unless legally entitled to an
accommodation.

Q11: How does this Guidance apply to covered contractor employees who are authorized
under the covered contract to perform work remotely from their residence?

A: An individual working on a covered contract from their residence is a covered contractor

employee, and must comply with the vaccination requirement for covered contractor employees,
even if the employee never works at either a covered contractor workplace or Federal workplace
during the performance of the contract. A covered contractor employee’s residence is not a
covered contractor workplace, so while in the residence the individual need not comply with
requirements for covered contractor workplaces, including those related to masking and physical
distancing, even while working on a covered contract.

Scope and Applicability

Q12: By when must the requirements of the order be reflected in contracts?

A: Section 6 of the order lays out a phase-in of the requirements for covered contracts as
follows:

11

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• Contracts awarded prior to October 15 where performance is ongoing – the requirements

must be incorporated at the point at which an option is exercised or an extension is made.

• New contracts – the requirements must be incorporated into contracts awarded on or after
November 14. Between October 15 and November 14, agencies must include the clause
in the solicitation and are encouraged to include the clause in contracts awarded during
this time period but are not required to do so unless the solicitation for such contract was
issued on or after October 15.

Q13: Must the order’s requirements be flowed down to all lower-tier subcontractors and,
if so, who is responsible for flowing the clause down?

A: Yes. The requirements in the order apply to subcontractors at all tiers, except for subcontracts
solely for the provision of products. The prime contractor must flow the clause down to first-tier
subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier
subcontractor, to the point at which subcontract requirements are solely for the provision of
products.

Q14: Does the Guidance apply to small businesses?

A: Yes, the requirement to comply with this Guidance applies equally to covered contractors
regardless of whether they are a small business. This broad application of COVID-19 guidance
will more effectively decrease the spread of COVID-19, which, in turn, will decrease worker
absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at
workplaces where they are performing work for the Federal Government.

Q15: What steps are being taken to promote consistent application of the order’s
requirements across agencies?

A: The FAR Council will conduct a rulemaking to amend the FAR to include a clause that
requires covered contractors performing under FAR-based contracts to comply with this
Guidance for contractor and subcontractor workplace locations. Prior to rulemaking, by October
8, 2021, the FAR Council will develop a clause and recommend that agencies exercise their
authority to deviate from the FAR using the procedures set forth in subpart 1.4. Agencies
responsible for contracts and contract-like instruments that are not subject to the FAR, such as
concession contracts, will be responsible for developing appropriate guidance by October 8,
2021 to incorporate requirements into their covered instruments entered into on or after October
15, 2021.

Q16: If the Safer Federal Workforce Task Force updates this Guidance to add new
requirements, do those requirements apply to existing contracts?

A: Yes. Covered contractors are required to, for the duration of the contract, comply with all Task
Force Guidance for contractor or subcontractor workplace locations, including any new

12

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Guidance where the OMB Director approves the Guidance and determines that adherence to the
Guidance will promote economy and efficiency in Federal contracting. The Task Force and OMB
plan to ensure any workplace safety protocols reflect what is necessary to decrease the spread of
COVID-19.

Q17: What constitutes work performed “in connection with” a covered contract?

A: Employees who perform duties necessary to the performance of the covered contract, but
who are not directly engaged in performing the specific work called for by the covered contract,
such as human resources, billing, and legal review, perform work in connection with a Federal
Government contract.

Q18: Do the workplace safety protocols in the Guidance apply to covered contractor
employees who perform work outside the United States?

A: No. The workplace safety protocols in the Guidance do not apply to covered contractor
employees who only perform work outside the United States or its outlying areas, as those terms
are defined in section 2.101 of the FAR.

Compliance

Q19: Does this clause apply in States or localities that seek to prohibit compliance with any
of the workplace safety protocols set forth in this Guidance?

A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary
State or local law or ordinance. Additionally, nothing in this Guidance shall excuse
noncompliance with any applicable State law or municipal ordinance establishing more
protective workplace safety protocols than those established under this Guidance.

Q20: Can a covered contractor comply with workplace safety requirements from the
Occupational Safety and Health Administration, including pursuant to any current or
forthcoming Emergency Temporary Standard related to COVID-19, instead of the
requirements of this Guidance?

A: No. Covered contractors must comply with the requirements set forth in this Guidance
regardless of whether they are subject to other workplace safety standards.

Q21: What is the prime contractor’s responsibility for verifying that subcontractors are
adhering to the mandate?

A: The prime contractor is responsible for ensuring that the required clause is incorporated into
its first-tier subcontracts in accordance with the implementation schedule set forth in section 6 of
the order. When the clause is incorporated into a subcontract, a subcontractor is required to

13

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comply with this Guidance and the workplace safety protocols detailed herein. Additionally,
first-tier subcontractors are expected to flow the clause down to their lower-tier subcontractors in
similar fashion so that accountability for compliance is fully established throughout the Federal
contract supply chain for covered subcontractor employees and workplaces at all tiers through
application of the clause.

14

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Federal Contractors
Vaccination and Safety Protocols NEW

Q: How do covered contractors determine vaccination status of visitors to

covered contractor workplaces?

A: Covered contractors should post signage at entrances to covered contractor

workplaces providing information on safety protocols for fully vaccinated and not fully
vaccinated individuals, including the protocols defined in the masking and physical
distancing section in the Task Force’s Guidance for Federal Contractors and
Subcontractors, and instruct individuals to follow the appropriate workplace safety
protocols while at the covered contractor workplace. Covered contractors may take
other reasonable steps, such as by communicating workplace safety protocols to
visitors prior to their arrival at a covered contractor workplace or requiring all visitors to
follow masking and physical distancing protocols for not fully vaccinated individuals.

NEW Q: Is there sample signage that a covered contractor can post at

entrances to covered contractor workplaces providing information on safety
protocols?

A: Yes. Covered contractors should post signage at entrances to covered contractor

workplaces providing information on safety protocols for fully vaccinated and not fully
vaccinated individuals and instruct individuals to follow the appropriate workplace
safety protocols while at the covered contractor workplace. Sample signage for areas

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of high or substantial levels of community transmission can be found here. Sample

signage for areas of low or moderate levels of community transmission can be found
here.

Q: Do covered contractors need to provide onsite vaccinations to their

employees?

A: Covered contractors should ensure their employees are aware of convenient

opportunities to be vaccinated. Although covered contractors may choose to provide
vaccinations at their facilities or workplaces, given the widespread availability of
vaccinations, covered contractors are not required to do so.

Q: If a covered contractor can access a covered contractor employee’s

vaccination documentation, consistent with relevant privacy laws, does the
covered contractor need to require the employee to show or provide
documentation?

A: No. If, consistent with all relevant privacy laws, a covered contractor can access its
employee’s vaccination documentation directly, such as when the contractor
previously requested the employee to provide vaccination documentation, has existing
documentation from an employee vaccination program, or can access information
through a State’s immunization database, the covered contractor does not need to
require its employee to show or provide documentation.

Q: What should a contractor employee do if a covered contractor employee has

lost or does not have a copy of required vaccination documentation?

A: If covered contractor employees need new vaccination cards or copies of other

documentation proof of vaccination, they should contact the vaccination provider site
where they received their vaccine. Their provider should be able to provide them with
new cards or documentation with up-to-date information about the vaccinations they
have received. If the location where the covered contractor employees received their
COVID-19 vaccine is no longer operating, the covered contractor employees should
contact their State or local health department’s immunization information system (IIS)
for assistance. Covered contractor employees should contact their State or local
health department if they have additional questions about vaccination cards or
vaccination records.

An attestation of vaccination by the covered contractor employee is not an acceptable

substitute for documentation of proof of vaccination.

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Q: Who is responsible for determining if a covered contractor employee must

be provided an accommodation because of a disability or because of a
sincerely held religious belief, practice, or observance?

A: A covered contractor may be required to provide an accommodation to contractor

employees who communicate to the covered contractor that they are not vaccinated
for COVID-19, or that they cannot wear a mask, because of a disability (which would
include medical conditions) or because of a sincerely held religious belief, practice, or
observance. A covered contractor should review and consider what, if any,
accommodation it must offer. The contractor is responsible for considering, and
dispositioning, such requests for accommodations regardless of the covered
contractor employee’s place of performance. If the agency that is the party to the
covered contract is a “joint employer” for purposes of compliance with the
Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered
contractor should review and consider what, if any, accommodation they must offer.

Q: Do all requests for accommodation need to be resolved by the covered

contractor by the time that covered contractor employees begin work on a
covered contract or at a covered workplace?

A: No. The covered contractor may still be reviewing requests for accommodation as
of the time that covered contractor employees begin work on a covered contract or at
a covered workplace. While accommodation requests are pending, the covered
contractor must require a covered contractor employee with a pending
accommodation request to follow workplace safety protocols for individuals who are
not fully vaccinated as specified in the Task Force Guidance for Federal Contractors
and Subcontractors.

Q: When a covered contractor employee is not vaccinated because a covered

contractor has provided the employee with an accommodation, what workplace
safety protocols must the employee follow while in a Federal workplace?

A: The Federal agency will determine the workplace safety protocols that individuals
who are not fully vaccinated must follow while in a Federal workplace. As noted in
Task Force guidance, in most circumstances individuals who are not fully vaccinated
need to follow applicable masking, physical distancing, and testing protocols.
However, there may be circumstances in which an agency determines that the nature
of a covered contractor employee’s job responsibilities at a Federal workplace, or the

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location of their work at a Federal workplace, requires heightened safety protocols.

Further, in some cases, an agency may determine that the nature of a covered
contractor employee’s responsibilities at a Federal workplace are such that no safety
protocol other than vaccination is adequate—in that case, covered contractor
employees who are not fully vaccinated would be unable to perform the requisite work
at the Federal workplace. Such circumstances do not relieve the contractor from
meeting all contractual requirements.

In order for agencies to assess appropriate safety measures for contractor employees
in Federal workplaces, contractors subject to a contractual requirement for
maintaining COVID-19 workplace safety protocols pursuant to Executive Order 14042
should generally notify their contracting officers when one of their employees who
works onsite at a Federal workplace has received an exception to the requirement to
be fully vaccinated.

Q: If a covered contractor employee requests an accommodation, and that

accommodation is denied by the covered contractor, how long should the
contractor employee be afforded to be fully vaccinated?

A: Covered contractors should establish a timeline for a covered contractor employee

whose request for an accommodation is denied to promptly become fully vaccinated.

Q: Can a covered contractor grant a covered contractor employee an extension

to the deadline for vaccination due to a documented medical necessity even if
the contractor employee does not meet the legal definition of “disability” to be
entitled to an accommodation?

A: Even in cases where the covered contractor employee does not meet the legal
definition of “disability” to be entitled to an accommodation under the Rehabilitation
Act, in some limited circumstances a covered contractor may grant the contractor
employee an extension to a vaccination deadline based upon other medical
considerations. For example, as explained in a separate FAQ, the CDC recommends
delaying COVID-19 vaccination for at least 90 days after receiving monoclonal
antibodies or convalescent plasma for COVID-19 treatment. Covered contractors that
receive documented medical reasons that may not qualify as a disability but that
necessitate a delay in vaccination can grant a covered contractor employee an
extension, but covered contractors should specify, consistent with the nature of the
medical necessity, by what date the contractor employee must be fully vaccinated.

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Covered contractors should take note that an individual’s medical need should be
considered on a case-by-case basis, including any medical evaluation that addresses
the individual’s particular circumstance.

Q: What medical conditions does the CDC consider a contraindication to

vaccination with COVID-19 vaccines?

A: The CDC considers a history of the following medical conditions to be

contraindications to vaccination with COVID-19 vaccines:

Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a

component of the COVID-19 vaccine; and
Immediate allergic reaction of any severity to a previous dose or known
(diagnosed) allergy to a component of the COVID-19 vaccine.

If an individual is allergic to a component of one or more COVID-19 vaccines, that

individual may not be allergic to components in all COVID-19 vaccines.

UPDATED Q: Are there circumstances that the CDC recommends delaying

vaccination for COVID-19?

A: Yes. In the following circumstances, the CDC recommends delaying vaccination for
COVID-19 for adults:

Vaccination of people with known current SARS-CoV-2 infection should be

delayed until the person has recovered from the acute illness (if the person had
symptoms), and they have met criteria to discontinue isolation.
People with a history of multisystem inflammatory syndrome in adults (MIS-A)
should consider delaying vaccination until they have recovered from their illness
and for 90 days after the date of diagnosis of MIS-A.
Vaccination should be delayed for 90 days after receiving monoclonal antibodies
or convalescent plasma for COVID-19 treatment.
Whenever possible, mRNA COVID-19 vaccination doses (including the primary
series and an additional dose) or the single dose Johnson and Johnson
(J&J)/Janssen vaccine should be completed at least two weeks before initiation or
resumption of immunosuppressive therapies, but timing of COVID-19 vaccination
should take into consideration current or planned immunosuppressive therapies
and optimization of both the patient’s medical condition and response to vaccine. A

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patient’s clinical team is best positioned to determine the degree of immune

compromise and appropriate timing of vaccination.
People who develop myocarditis or pericarditis after a dose of an mRNA
COVID-19 vaccine should delay receiving a subsequent dose. People who choose
to receive a subsequent dose should wait until myocarditis has completely
resolved.
People who have a history of myocarditis or pericarditis unrelated to mRNA
COVID-19 vaccination may receive any currently FDA-approved or FDA-
authorized COVID-19 vaccine after the episode of myocarditis or pericarditis has
completely resolved. This includes resolution of symptoms attributed to
myocarditis or pericarditis, as well as no evidence of ongoing heart inflammation
or sequelae as determined by the person’s clinical team, which may include a
cardiologist, and special testing to assess cardiac recovery.

This is not an exhaustive list of the circumstances in which clinical considerations may
recommend in favor of delaying vaccination.

In circumstances in which delay pursuant to these clinical considerations means that a

covered contractor employee is not fully vaccinated as of the vaccination requirement
implementation date of January 18, 2022 or at the time that covered contractor
employees begin work on a covered contract or at a covered workplace, the covered
contractor should require that individual to become fully vaccinated promptly after
clinical considerations no longer recommend delay.

During the period in which vaccination is delayed, a covered contractor employee

must follow applicable masking and physical distancing protocols for not fully
vaccinated individuals. There may be circumstances in which an agency determines
that the nature of a covered contractor employee’s job responsibilities at a Federal
workplace, or the location of their work at a Federal workplace, requires heightened
safety protocols. In some cases, an agency may determine that the nature of a
covered contractor employee’s responsibilities at a Federal workplace are such that
no safety protocol other than vaccination is adequate—in that case, covered
contractor employees who are not fully vaccinated would be unable to perform the
requisite work at the Federal workplace. Such circumstances do not relieve the
contractor from meeting all contractual requirements.

Q: Is vaccination for COVID-19 recommended for people who are trying to get
pregnant or might become pregnant in the future?

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A: Yes. The CDC has stated that COVID-19 vaccination is recommended for people
who are trying to get pregnant now or might become pregnant in the future, as well as
their partners.

Q: Does the CDC recommend that an individual delay vaccination due to

pregnancy?

A: The CDC recommends COVID-19 vaccination for people who are pregnant,
breastfeeding, trying to become pregnant now, or trying to become pregnant in the
future. The American College of Obstetricians and Gynecologists and Society for
Maternal-Fetal Medicine recommend that all pregnant individuals be vaccinated
against COVID-19. However, a covered contractor may allow a covered contractor
employee to delay vaccination based on the contractor employee’s particular medical
circumstances, consistent with the covered contractor’s process for reviewing delay
requests.

Q: Can a covered contractor employee delay a COVID-19 vaccine because they

have recently received another vaccine, such as the seasonal influenza
vaccine?

A: COVID-19 vaccines may be administered without regard to timing of other

vaccines. This includes simultaneous administration of COVID-19 vaccine and other
vaccines on the same day.

Q: Can a covered contractor employee who participates in a clinical trial for a

COVID-19 vaccine be considered fully vaccinated?

A: Clinical trial participants from a U.S. site who are documented to have received the
full series of an “active” (not placebo) COVID-19 vaccine candidate, for which vaccine
efficacy has been independently confirmed (e.g., by a data and safety monitoring
board), can be considered fully vaccinated 2 weeks after they have completed the
vaccine series. Currently, the U.S.-based AstraZeneca and Novavax COVID-19
vaccines meet these criteria. More information is available here.

Q: Can a covered contractor employee who has received a heterologous

primary vaccine series be considered fully vaccinated?

A: Individuals can be considered fully vaccinated •2 weeks after receipt of the last
dose if they have received any combination of two doses of an FDA approved or

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authorized or WHO emergency use listed COVID-19 two-dose series. For these
purposes, the second dose in a two dose heterologous series must have been
received no earlier than 17 days (21 days with a 4-day grace period) after the first
dose.

Q: Are covered contractor employees who have a prior COVID-19 infection

required to be vaccinated?

A: Yes, covered contractor employees who have had a prior COVID-19 infection are
required to be vaccinated. More information from CDC can be found here.

Q: Can a covered contractor accept a recent antibody test from a covered

contractor employee to prove vaccination status?

A: No. A covered contractor cannot accept a recent antibody test from a covered
contractor employee to prove vaccination status.

Workplaces UPDATED

Q: Does the Task Force Guidance for Federal Contractors and Subcontractors
apply to outdoor contractor or subcontractor workplace locations?

A: Yes, the Task Force Guidance applies to contractor or subcontractor workplace

locations that are outdoors.

Q: If a covered contractor employee is likely to be present during the period of

performance for a covered contract on only one floor or a separate area of a
building, site, or facility controlled by a covered contractor, do other areas of
the building, site, or facility controlled by a covered contractor constitute a
covered contractor workplace?

A: Yes, unless a covered contractor can affirmatively determine that none of its
employees on another floor or in separate areas of the building will come into contact
with a covered contractor employee during the period of performance of a covered
contract. This would include affirmatively determining that there will be no interactions
between covered contractor employees and non-covered contractor employees in
those locations during the period of performance on a covered contract, including
interactions through use of common areas such as lobbies, security clearance areas,
elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

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Q: If a covered contractor employee performs their duties in or at only one

building, site, or facility on a campus controlled by a covered contractor with
multiple buildings, sites, or facilities, are the other buildings, sites, or facility
controlled by a covered contractor considered a covered contractor workplace?

A: Yes, unless a covered contractor can affirmatively determine that none of its
employees in or at one building, site, or facility will come into contact with a covered
contractor employee during the period of performance of a covered contract. This
would include affirmatively determining that there will be no interactions between
covered contractor employees and non-covered contractor employees in those
locations during the period of performance on a covered contract, including
interactions through use of common areas such as lobbies, security clearance areas,
elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

UPDATED Q: Are the workplace safety protocols enumerated in the Task Force
Guidance for Federal Contractors and Subcontractors the same irrespective of
whether the work is performed at a covered contractor workplace or at a Federal
workplace?

A: Yes. The Task Force Guidance applies to all covered contractor employees and to
all contractor or subcontractor workplace locations. While at a Federal workplace,
covered contractor employees must also comply with any additional agency workplace
safety requirements for that workplace. Because covered contractor employees
working on a covered contract need to be fully vaccinated after January 18, 2022,
covered contractor employees who work only at a Federal workplace need to be fully
vaccinated by that date as well, unless legally entitled to an accommodation.

Q: How does the Task Force Guidance for Federal Contractors and
Subcontractors apply to covered contractor employees who are authorized
under the covered contract to perform work remotely from their residence?

A: An individual working on a covered contract from their residence is a covered

contractor employee, and must comply with the vaccination requirement for covered
contractor employees, even if the employee never works at either a covered
contractor workplace or Federal workplace during the performance of the contract. A
covered contractor employee’s residence is not a covered contractor workplace, so
while in the residence the individual need not comply with requirements for covered
contractor workplaces, including those related to masking and physical distancing,

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even while working on a covered contract.

Scope and Applicability of Task Force Guidance for Federal Contractors

Q: By when must the requirements of Executive Order 14042 be reflected in

contracts?

A: Section 6 of the order lays out a phase-in of the requirements for covered contracts
as follows:

Contracts awarded prior to October 15 where performance is ongoing – the

requirements must be incorporated at the point at which an option is exercised or
an extension is made.
New contracts – the requirements must be incorporated into contracts awarded on
or after November 14. Between October 15 and November 14, agencies must
include the clause in the solicitation and are encouraged to include the clause in
contracts awarded during this time period but are not required to do so unless the
solicitation for such contract was issued on or after October 15.

Q: Must the requirements of Executive Order 14042 be flowed down to all lower-
tier subcontractors and, if so, who is responsible for flowing the clause down?

A: Yes. The requirements in the order apply to subcontractors at all tiers, except for
subcontracts solely for the provision of products. The prime contractor must flow the
clause down to first-tier subcontractors; higher-tier subcontractors must flow the
clause down to the next lower-tier subcontractor, to the point at which subcontract
requirements are solely for the provision of products.

Q: Does the Task Force Guidance for Federal Contractors and Subcontractors
apply to small businesses?

A: Yes, the requirement to comply with the Task Force Guidance applies equally to
covered contractors regardless of whether they are a small business. This broad
application of COVID-19 guidance will more effectively decrease the spread of
COVID-19, which, in turn, will decrease worker absence, reduce labor costs, and
improve the efficiency of contractors and subcontractors at workplaces where they are
performing work for the Federal Government.

Q: What steps are being taken to promote consistent application of the

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 Case 2:21-cv-01568-MTL Document 134-3 Filed 12/20/21 Page 12 of 21

requirements of Executive Order 14042 across agencies?

A: The FAR Council will conduct a rulemaking to amend the FAR to include a clause
that requires covered contractors performing under FAR-based contracts to comply
with the Task Force guidance for contractor and subcontractor workplace locations.
Prior to rulemaking, the FAR Council has developed a clause and recommended that
agencies exercise their authority to deviate from the FAR using the procedures set
forth in subpart 1.4. Agencies responsible for contracts and contract-like instruments
that are not subject to the FAR, such as concession contracts, will be responsible for
developing appropriate guidance by October 8, 2021 to incorporate requirements into
their covered instruments entered into on or after October 15, 2021.

Q: Can agencies incorporate vaccination requirements into contracts that are

not covered by Executive Order 14042 (Ensuring Adequate COVID Safety
Protocols for Contractors)?

A: Yes. Consistent with applicable law, agencies are strongly encouraged to

incorporate a clause requiring compliance with the Task Force Guidance for Federal
Contractors and Subcontractors into contracts that are not covered or directly
addressed by Executive Order 14042 because the contract is under the Simplified
Acquisition Threshold as defined in section 2.101 of the FAR or is a contract or
subcontract for the manufacturing of products. Agencies are also strongly encouraged
to incorporate a clause requiring compliance with the Task Force Guidance into
existing contracts and contract-like instruments prior to the date upon which the order
requires inclusion of the clause.

Q: If the Safer Federal Workforce Task Force updates its Guidance for Federal
Contractors and Subcontractors to add new requirements, do those
requirements apply to existing contracts?

A: Yes. Covered contractors are required to, for the duration of the contract, comply
with all Task Force Guidance for contractor or subcontractor workplace locations,
including any new Guidance where the OMB Director approves the Guidance and
determines that adherence to the Guidance will promote economy and efficiency in
Federal contracting. The Task Force and OMB plan to ensure any workplace safety
protocols reflect what is necessary to decrease the spread of COVID-19.

Q: What constitutes work performed “in connection with” a covered contract?

A: Employees who perform duties necessary to the performance of the covered

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contract, but who are not directly engaged in performing the specific work called for by
the covered contract, such as human resources, billing, and legal review, perform
work in connection with a Federal Government contract.

Q: Do the workplace safety protocols in the Task Force Guidance for Federal
Contractors and Subcontractors apply to covered contractor employees who
perform work outside the United States?

A: No. The workplace safety protocols in the Task Force Guidance do not apply to
covered contractor employees who only perform work outside the United States or its
outlying areas, as those terms are defined in section 2.101 of the FAR.

Q: If a corporate affiliate of a covered contractor does not otherwise qualify as a

covered contractor, are the employees of that affiliate considered covered
contractor employees subject to COVID-19 workplace safety protocols for
Federal contractors established through Task Force Guidance?

A: For purposes of Task Force Guidance, business concerns, organizations, or

individuals are affiliates of each other if, directly or indirectly: (i) either one controls or
has the power to control the other; or (ii) a third party controls or has the power to
control both.

Indicia of control include, but are not limited to, interlocking management or
ownership, identity of interests among family members, shared facilities and
equipment, or common use of employees.

An employee of a corporate affiliate of a covered contractor is considered a covered

contractor employee if the employee performs work at a covered contractor
workplace.

Q: If the workplace where a covered contractor’s employees perform work on or

in connection with a covered contract is a location owned, leased, or otherwise
controlled by a corporate affiliate of a covered contractor that does not
otherwise qualify as a covered contractor under Task Force guidance, is the
workplace considered a covered contractor workplace?

A: For purposes of Task Force Guidance, business concerns, organizations, or

individuals are affiliates of each other if, directly or indirectly: (i) either one controls or
has the power to control the other; or (ii) a third party controls or has the power to
control both.

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Indicia of control include, but are not limited to, interlocking management or
ownership, identity of interests among family members, shared facilities and
equipment, or common use of employees.

If any employee of a covered contractor working on or in connection with a covered

contract is likely to be present during the period of performance for a covered contract
at a workplace controlled by a corporate affiliate of that covered contractor, that
workplace is considered a covered contractor workplace.

Compliance

Q: What steps should a covered contractor take if a covered contractor

employee refuses to be vaccinated?

A: A covered contractor should determine the appropriate means of enforcement with

respect to its employee at a covered contractor workplace who refuses to be
vaccinated and has not been provided, or does not have a pending request for, an
accommodation. This may include the covered contractor using its usual processes
for enforcement of workplace policies, such as those addressed in the contractor’s
employee handbook or collective bargaining agreements.

One model for enforcement among employees with respect to non-compliance with a
vaccination requirement is that being followed by Federal agencies. Guidance for
Federal agencies is to utilize an enforcement policy that encourages compliance,
including through a limited period of counseling and education, followed by additional
disciplinary measures if necessary. Removal occurs only after continued
noncompliance. Guidance for Federal agencies is that employees should not be
placed on administrative leave while the agency is pursuing an adverse action for
refusal to be vaccinated but will be required to follow safety protocols for employees
who are not fully vaccinated when reporting to agency worksites.

During the time period of enforcement, the covered contractor must ensure the
covered contractor employee at a covered contractor workplace is following all
workplace safety protocols for individuals who are not fully vaccinated.

An agency may determine that a covered contractor employee who refuses to be

vaccinated in accordance with a contractual requirement pursuant to EO 14042 will be
denied entry to a Federal workplace, consistent with the agency’s workplace safety

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 Case 2:21-cv-01568-MTL Document 134-3 Filed 12/20/21 Page 15 of 21

protocols.

Q: What steps should an agency take if a covered contractor does not comply
with the requirements in the Task Force’s Guidance for Federal Contractors and
Subcontractors?

A: Covered contractors are expected to comply with all requirements set forth in their
contract. Where covered contractors are working in good faith and encounter
challenges with compliance with COVID-19 workplace safety protocols, the agency
contracting officer should work with them to address these challenges. If a covered
contractor is not taking steps to comply, significant actions, such as termination of the
contract, should be taken.

Q: Does this clause apply in States or localities that seek to prohibit compliance
with any of the workplace safety protocols set forth in the Task Force Guidance
for Federal Contractors and Subcontractors?

A: Yes. These requirements are promulgated pursuant to Federal law and supersede
any contrary State or local law or ordinance. Additionally, nothing in the Task Force
Guidance shall excuse noncompliance with any applicable State law or municipal
ordinance establishing more protective workplace safety protocols than those
established under the Task Force Guidance.

Q: Can a covered contractor comply with workplace safety requirements from

the Occupational Safety and Health Administration, including pursuant to any
current or forthcoming Emergency Temporary Standard related to COVID-19,
instead of the requirements of the Task Force Guidance for Federal Contractors
and Subcontractors?

A: No. Covered contractors must comply with the requirements set forth in the Task
Force Guidance regardless of whether they are subject to other workplace safety
standards.

Q: What is the prime contractor’s responsibility for verifying that

subcontractors are adhering to the mandate?

A: The prime contractor is responsible for ensuring that the required clause is
incorporated into its first-tier subcontracts in accordance with the implementation
schedule set forth in section 6 of Executive Order 14042. When the clause is
incorporated into a subcontract, a subcontractor is required to comply with the Task

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Force Guidance for Federal Contractors and Subcontractors and the workplace safety
protocols detailed herein. Additionally, first-tier subcontractors are expected to flow the
clause down to their lower-tier subcontractors in similar fashion so that accountability
for compliance is fully established throughout the Federal contract supply chain for
covered subcontractor employees and workplaces at all tiers through application of
the clause.

Q: May the prime contractor assume the subcontractor is complying with the
clause?

A: Yes, unless the prime contractor has credible evidence otherwise.

Onsite Contractor Employees and Federal Workplace Safety Protocols

Q: Do fully vaccinated federal employees, onsite contractor employees, or

visitors need to wear a mask or physically distance in federal buildings or on
federal lands?

A: In areas of high or substantial transmission, fully vaccinated people need to wear a

mask in public indoor settings, except for limited exceptions discussed in the model
safety principles issued by the Safer Federal Workforce Task Force on September 13,
2021.

In areas of low or moderate transmission, in most settings fully vaccinated people

generally do not need to wear a mask or physically distance in federal buildings or on
federal lands, except where called for by Federal, State, local, Tribal, or territorial
laws, rules, and regulations.

Fully vaccinated individuals might choose to wear a mask regardless of the level of
transmission for a variety of reasons.

CDC’s guidance for mask-wearing and physical distancing in specific settings,

including healthcare, transportation, correctional and detention facilities, and schools,
should be followed as applicable. Agencies should communicate with employee
representatives and satisfy any applicable collective bargaining obligations prior to
implementing changes to policies regarding mask wearing and physical distancing.

Q: Do federal employees, onsite contractor employees, and visitors who are not
fully vaccinated need to wear a mask or physically distance in federal buildings

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or on federal lands?

A: Yes, people who are not fully vaccinated need to continue to wear a mask and
physically distance consistent with CDC guidance and the requirements set forth in
Executive Order 13991 and OMB Memorandum M-21-15 and the model safety
principles issued by the Safer Federal Workforce Task Force on September 13, 2021.

Q: Is symptom screening required before agency onsite employees, onsite

contractor employees, and visitors come to the workplace?

A: If federal employees, onsite contractor employees, or visitors have symptoms

consistent with COVID-19, they should not enter a federal workplace.

Federal employees and contractors working on site should regularly complete virtual
or in-person health checks (ask about symptoms, close contact with someone with
SARS-CoV-2 infection, and SARS-CoV-2 testing and diagnosis status). The agency
will use this information to assess the individual’s risk level and to determine whether
the individual should be allowed entry to the workplace. Visitors may be asked to
complete symptom screening before entering a federal facility. In developing these
tools, agencies may adapt the one developed by CDC.

Q: Are onsite contractor employees participating in an agency testing program

limited in their ability to work onsite in between tests?

A: No, provided that they have met any applicable testing requirement and have not
tested positive for COVID-19, onsite contractor employees participating in an agency
testing program are not limited in their ability to work onsite between tests, although
they must comply with all relevant safety protocols. However, if the onsite contractor
employee has come into close contact with a person with COVID-19 during this time,
they should follow CDC guidelines for testing and quarantine and not enter a worksite.
Similarly, if they have symptoms consistent with COVID-19, they should not enter a
worksite.

Agencies should develop a procedure for addressing circumstances in which onsite

contractor employees miss their required test, which may include restricting the
individual’s access to worksites if they have not obtained a test within a period of time
specified by the agency.

A contractor employee’s failure to comply with testing requirements may result in that
individual being denied entry to a federal building. Such circumstances do not relieve

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 Case 2:21-cv-01568-MTL Document 134-3 Filed 12/20/21 Page 18 of 21

the contractor from meeting all contractual requirements.

Q: Should agencies inquire regarding the vaccination status of onsite

contractor employees?

A: Prior to contractor employees being subject to a contractual requirement to be

vaccinated, agencies need to ask about the vaccination status of those onsite
contractor employees. Onsite contractor employees must attest to the truthfulness of
the response they provide. If an onsite contractor employee chooses not to provide a
response, they will be treated as not fully vaccinated for the purpose of agency safety
protocols. In requesting this information, agencies should comply with any applicable
federal laws, including requirements under the Privacy Act and the Paperwork
Reduction Act.

Q: Do onsite contractor employees need to provide proof of a negative

COVID-19 test?

A: Prior to being subject to a contractual requirement to be vaccinated, onsite

contractor employees who are not fully vaccinated or who decline to provide
information about their vaccination status must provide proof of a negative COVID-19
test from no later than the previous 3 days prior to entry to a federal building. If a
contractor employee is regularly tested pursuant to an agency testing program, then
they do not need to provide proof of a negative COVID-19 test from no later than the
previous 3 days prior to entry to a federal building unless required to by the agency
testing program.

Q: How should an agency ask onsite contractor employees about their

vaccination status?

A: Prior to being subject to a contractual requirement to be vaccinated, onsite

contractor employees should be provided with the Certification of Vaccination form
when they enter a federal building or federally controlled indoor worksite.

Unless an agency has an existing system of records notice that permits it to collect
and maintain this information on its contractor employees, agencies will direct onsite
contractor employees to complete the Certification of Vaccination form and keep it
with them during their time on federal premises—they may be asked to show the form
upon entry to a federal building or federally controlled indoor worksite and to a federal
employee who oversees their work.

App.170a
 Case 2:21-cv-01568-MTL Document 134-3 Filed 12/20/21 Page 19 of 21

Prior to being subject to a contractual requirement to be vaccinated, onsite contractor

employees who are not fully vaccinated (or who decline to disclose vaccination status)
are required to show proof of a negative COVID-19 test result from within the previous
3 days before entry to a federal building or federally controlled indoor worksite. If a
contractor employee is regularly tested pursuant to an agency testing program, then
they do not need to provide proof of a negative COVID-19 test from no later than the
previous 3 days prior to entry to a federal building unless required to by the agency
testing program.

Agencies may email Certification of Vaccination form to contractor employees in

advance of their time on-site or utilize a unique tool or application to share the form
with contractor employees and enable them to easily complete it, but the agency will
not maintain Certification of Vaccination forms from contractor employees at this time
unless an agency has a system of records notice that covers its collection of this
information from onsite contractor employees. Any such collection, storage, or
maintenance of the attestation disclosure forms may implicate the Privacy Act and
Paperwork Reduction Act.

Prior to having a contractual requirement for its employees to be vaccinated and if

authorized and consistent with the terms of the contract, an agency may work with a
contractor to facilitate compliance by its onsite employees with the agency’s safety
protocols, such as by having the company attest that all onsite contractor employees
are fully vaccinated.

Q: What type of negative COVID-19 test result must an onsite contractor

employee who is not fully vaccinated show documentation of in order to enter a
federal building?

A: Agencies may determine what types of tests an onsite contractor employee who is
not subject to a contractual requirement to be vaccinated can show documentation of
in order to enter a federal building, provided that the tests are authorized by the U.S.
Food and Drug Administration to detect current infection and produce a dated result.

Q: If an agency has a system of records notice that covers its collection of

information on vaccination status from onsite contractor employees, can the
agency collect that information?

A: Yes, if an agency has a system of records notice that covers its collection of the
requisite information—as reflected in the Certification of Vaccination form—from onsite

App.171a
 Case 2:21-cv-01568-MTL Document 134-3 Filed 12/20/21 Page 20 of 21

contractor employees consistent with the Privacy Act, it may do so. The agency
should ensure such a collection is also consistent with the Paperwork Reduction Act.
The agency should provide a means for individuals to update their vaccination status
over time.

Q: Are agencies required to establish different safety protocols for fully

vaccinated and not fully vaccinated individuals?

A: Yes. Fully vaccinated individuals do not need to physically distance or have

restrictions on their official travel (although they still must comply with any local
requirements and relevant CDC guidance for fully vaccinated individuals while
traveling). Fully vaccinated individuals in areas of substantial or high transmission
(see the CDC COVID-19 Data Tracker County View) need to wear a mask in public
indoor settings. Fully vaccinated individuals in areas of low or moderate transmission
do not need to wear a mask, unless required by state or local regulations or laws.

Fully vaccinated individuals might choose to wear a mask regardless of the level of
transmission for a variety of reasons.

Some onsite contractor employees may not yet be subject to a contractual

requirement to be vaccinated. Individuals who are not fully vaccinated or who decline
to provide information about their vaccination status must wear masks regardless of
community transmission level, physically distance, and comply with travel
requirements for not fully vaccinated individuals

Prior to being subject to a contractual requirement to be vaccinated, onsite contractor

Find COVID-19
employees who are not fully vaccinated or who decline to provide information about
Vaccines
their vaccination status must provide Near
proof of You COVID-19 test from no later
a negative
than the previous 3 days prior to entry to a federal building. If a contractor employee is
Visit Vaccines.gov
regularly tested pursuant to an agency testing program, then they do not need to
provide proof of a negative COVID-19
Or Calltest from no later than the previous 3 days prior
1-800-232-0233
to entry to a federal building unless required to by the agency testing program.

For questions or comments, email the Safer Federal Workforce Task Force at
[email protected]

App.172a
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ER_137

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ER_138

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ER_139

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ER_140

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ER_141

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 Case: 22-15518, 02/14/2023, ID: 12652460, DktEntry: 52, Page 1 of 3

ALEXANDER W. SAMUELS
KRISTIN K. M AYES OFFICE OF THE ARIZONA ATTORNEY GENERAL PRINCIPAL DEPUTY SOLICITOR GENERAL
ATTORNEY GENERAL SOLICITOR GENERAL’S OFFICE (602)-542-5252
[email protected]

February 14, 2023

VIA CM/ECF

Molly C. Dwyer
Clerk of the Court
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939

Re: Mayes 1 v. Biden, No. 22-15518

0F

Argument scheduled for March 7, 2023

Dear Ms. Dwyer:

Following a change in administration, the Arizona Attorney General’s Office (“the

Office”) has undertaken a reexamination of the issues in this case. The purpose of this
letter is to notify the Court that the Office has modified its position in some respects.
Please distribute a copy of this letter to the members of the Court considering this case.

After careful review of the issues, the Office intends to defend a narrowed version
of the judgment below. In doing so, the Office intends to make some, but not all, of the
arguments previously made in the answering brief. More specifically, the Office advises
the Court of the following modifications to its position:

1. The district court below held that “[t]he Contractor Mandate exceeds the
scope of the President’s authority under the Procurement Act” and then issued a
permanent injunction. ER 7–8, 63. On appeal the federal government argues that, at a
minimum, “the district court’s injunction should be narrowed to apply only to Arizona
public entities’ own contracts with the federal government.” Opening Br. 15, 47–49.

On this front, the Office now agrees with the federal government. When issuing
the injunction, the district court did not have the benefit of recent decisions by the Sixth

1
Arizona Attorney General Kristin K. Mayes is automatically substituted for her predecessor
Mark Brnovich. Fed. R. App. P. 43(c).

2005 North Central Avenue x Phoenix, Arizona x 85004-1592 x Phone (602) 542-3333 x Fax (602) 542-8308 x WWW.AZAG.GOV

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and Eleventh Circuits, which affirmed injunctions against the Contractor Mandate but
narrowed the scope of those injunctions. Kentucky v. Biden, 57 F.4th 545, 556–57 (6th
Cir. 2023); Georgia v. Biden, 46 F.4th 1283, 1303–07 (11th Cir. 2022). Nor did the
district court have the benefit of a recent Fifth Circuit decision, which affirmed an
injunction against the Contractor Mandate that was already narrow in scope. See
Louisiana v. Biden, 575 F. Supp. 3d 680, 695 (W.D. La. 2021), aff’d, 55 F.4th 1017, 1035
(5th Cir. 2022). After reviewing these decisions, the Office has concluded that the
injunction should be limited to Arizona public entities’ own contracts with the federal
government.

2. The Office otherwise intends to continue defending the district court’s

injunction. However, at oral argument, the Office does not intend to continue advancing
all arguments made in its answering brief. In particular:

a. Although the Office will defend the district court’s core holdings –
that the Contractor Mandate exceeded Defendants’ authority under the
Procurement Act and that the State satisfied the requirements for injunctive relief
– the Office will not continue to argue that Defendants lack any authority
whatsoever under the Procurement Act to take measures aimed at the performance
of contracts. See Answering Br. 51-54.

b. The Office no longer intends to urge application of the major

questions doctrine. See Answering Br. 24–26, 30–50. This Court need not
confront any question relating to the major questions doctrine to affirm a narrowed
version of the district court’s injunction, as the Sixth Circuit recently
demonstrated. See Kentucky, 57 F.4th at 555 n.2 (concluding “we need not
decide” whether the doctrine applies); accord PDK Labs, Inc. v. U.S. Drug
Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring)
(“[I]f it is not necessary to decide more, it is necessary not to decide more.”).

c. The Office no longer intends to urge application of the constitutional

avoidance and federalism canons, for similar reasons. See Answering Br. 61–63.

d. The Office no longer intends to argue that the Contractor Mandate

violates the Procurement Policy Act, an argument the district court rejected.
Compare Answering Br. 63–66 with ER 48–53.

e. The Office no longer intends to seek a remand for claims under the
Administrative Procedure Act, which the district court declined to address because
the claims “ha[d] not been adequately briefed.” Compare Answering Br. 66–67
with ER 20.

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3. The Office does not believe supplemental briefing is required and stands
ready to proceed with oral argument on March 7, 2023. Counsel for Defendants have
viewed this letter and stated that they do not oppose the filing of the letter, do not believe
supplemental briefing is required, and are prepared to proceed with oral argument on
March 7, 2023.

Sincerely,

s/ Alexander W. Samuels
Alexander W. Samuels
Principal Deputy Solicitor General
Arizona Attorney General’s Office

cc (via CM/ECF): Counsel of Record

App.181a
App.182a