Eleventh Circuit Confirms Federal Contractor Vaccine Mandate Likely Exceeds Presidential Authority, But Narrows the Scope of the Previous Nationwide Injunction

02 September 2022 Legal News: Government Procurement Publication
Author(s): Erin L. Toomey David T. Ralston Jr Frank S. Murray Jr Julia Di Vito Megan Chester

On August 26, 2022, the Eleventh Circuit issued its long awaited decision on the government’s appeal of the nationwide injunction that prevented the government from enforcing the vaccine mandate for federal contractors and subcontractors set forth in Executive Order 14042, in all covered contracts in any state or territory of the United States of America. Finding it likely that the plaintiffs will succeed on the merits of their argument that the mandate is unlawful and finding injunctive relief to be warranted, the Circuit Court upheld the injunction as to the parties in the case. The Court, however, found the nationwide injunction overbroad and narrowed the scope of the injunction to only those plaintiffs in Georgia, et al. v. Biden, et al

While not nationwide in scope, injunctions from other federal courts remain in place covering employees located in various states. Following the Eleventh Circuit’s narrowing of the Southern District of Georgia injunction, on August 31, 2022, the Safer Federal Workforce Task Force updated its website to indicate that the Federal Government “will take no action to implement or enforce Executive Order 14042” and for existing covered contracts, the Federal Government will not take action to enforce compliance with the requirements of Executive Order 14042, “absent further written notice from the agency.” 

Summary of the Eleventh Circuit Decision

Over four months after hearing oral arguments, the Eleventh Circuit upheld the Southern District of Georgia’s decision that the plaintiffs in Georgia, et al. v. Biden, et al. – the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia; the governors of several of those states; various state agencies of those states; and Associated Builders and Contractors, Inc. – are likely to succeed on the merits of their argument that the federal government’s vaccine mandate exceeded presidential authority. The Eleventh Circuit agreed with the Southern District of Georgia that the plaintiffs are entitled to preliminary injunctive relief, and upheld and continued the preliminary injunction with respect to those plaintiffs. The Eleventh Circuit found, however, that the nationwide injunctive relief provided by the Southern District was overbroad, as injunctive relief should “operate on specific parties, not geographic territories,"1 and should be narrowly tailored. On that basis, the Circuit Court vacated the injunction as to contractors and subcontractors not party to the case, expressing wariness of nationwide injunctions with the view that they frustrate the federal court system by preventing other federal courts from independently reviewing the legal issues.

Therefore, the Eleventh Circuit upheld the core finding that plaintiffs will likely succeed on their argument that the vaccine mandate is unlawful, warranting an injunction, but vacated the injunction in part by narrowing the scope of the injunction so that it only applies to the seven plaintiff states and their agencies, and members of the Associated Builders and Contractors, Inc. As a result, the Southern District of Georgia injunction no longer operates to prevent enforcement of the vaccine mandate against nonparty contractors through new and existing contracts. With respect to solicitations, the injunction remains “in place to the extent it bars the federal government from considering the enforceability of the mandate when deciding who should receive a contract, if any plaintiff belongs to the pool of bidders."2 Thus, the Southern District of Georgia injunction no longer applies to solicitations in which no plaintiff participates as a bidder. 

Other Existing Injunctions

Though the Southern District of Georgia’s injunction no longer prevents the enforcement of the requirements of Executive Order 14042 against contractors other than those specifically party to Georgia, et al. v. Biden, et al., injunctions remain in other jurisdictions while Circuit Courts continue their respective reviews.  Enforcement against federal contractors remains enjoined for all covered contracts in:

  • Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming;3
  • Florida;4 and
  • Kentucky, Ohio, and Tennessee.5

Enforcement against federal contractors is also enjoined “in any contract to which a contracting party is domiciled in or headquartered in the State of Arizona,” and in any contract set to principally be performed in Arizona.6 Thus, the federal vaccine mandate remains geographically enjoined in 15 states. 

Next Steps for Federal Contractors

Through updated guidance issued by the Safer Federal Workforce Task Force following the Eleventh Circuit decision, the Federal Government has decided not to implement or enforce the federal contractor vaccine mandate on a nationwide basis given the ongoing litigation. For existing covered contracts containing contract clauses implementing Executive Order 14042, the Federal Government does not intend to enforce compliance with the Executive Order, “absent further written notice from the agency.” As such, covered contractors must closely monitor individual agency guidance to determine if a contracting agency decides to enforce compliance with the vaccine mandate. For compliance obligations of covered contractors, review our prior article here.

Should the government resume enforcement, covered contractors that are not plaintiffs in the Georgia, et al. v. Biden, et al. and are not otherwise subject to an injunction can file an action in an applicable federal court seeking to preliminarily and permanently enjoin the vaccine mandate. In particular, any District Court in the Eleventh Circuit would have to work very hard not to enter a preliminary injunction for such plaintiffs given the Circuit Court’s decision in Georgia, et al. v. Biden, et al.

Foley has created a multidisciplinary and multijurisdictional team that has prepared a wealth of topical client resources and is prepared to help clients meet the legal and business challenges created by Executive Order 14042. To discuss how the newly tailored injunction against federal enforcement of the contractor vaccine mandate may impact your business, contact Erin L. Toomey (etoomey@foley.com), David T. Ralston (dralston@foley.com), Frank S. Murray (fmurray@foley.com), Julia Di Vito (jdivito@foley.com), or Megan Chester (mxchester@foley.com).

1 Georgia, et al. v. Biden, et al., No. 21-14269, at 43 (11th Cir. Aug. 26, 2022) (opinion on appeal narrowing preliminary injunction).

2 Id. at 44.

3 See Missouri, et al. v. Biden, et al., No. 4:21-cv-1300-DDN (E.D. Mo. Dec. 20, 2021) (order granting preliminary injunction).

4 See Florida v. Nelson, et al., No. 8:21-cv-2524-SDM-TGW (M.D. Fl. Dec. 22, 2021) (order granting preliminary injunction).

5 See Kentucky, et al. v. Biden, et al., No. 3:21-cv-00055-GFVT (E.D. Ky. Nov. 30, 2021) (order granting preliminary injunction).

6 Brnovich v. Biden, No. 2:21-cv-01568-MTL (D. Az. Feb. 10, 2022) (order granting permanent injunction).

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