On Friday, August 26, the Eleventh Circuit published the long-awaited decision in the government’s appeal of a nationwide injunction halting the COVID-19 vaccine mandate for government contractors and subcontractors. Although the decision found that the plaintiffs were entitled to an injunction, the Eleventh Circuit also found that the Southern District of Georgia’s injunction, which applied nationwide, was overly broad. The court narrowed the injunction to apply only to the plaintiffs, stating that they need not comply with the vaccine mandate in their capacity as contractors or incorporate it in lower-tier subcontracts. The appellate court left the prohibition against federal agencies considering compliance with the mandate in proposal evaluations, but only to the extent a plaintiff submitted a bid.
While the basis for limiting the injunction to the parties is well reasoned, it has the unfortunate result of causing potential confusion regarding who must comply with the mandate.
The President Lacked Authority to Issue Vaccine Mandate
Expounding on conclusions reached by several district courts across the country, the Eleventh Circuit held that the plaintiffs were entitled to an injunction because the president lacked authority to issue the federal contractor vaccine mandate included in Executive Order 14042. The court found that claimed authorization, the Federal Property and Administrative Services Act (Procurement Act), does not authorize the president to direct that “every executive agency … base every procurement decision on the health of the contracting workforce.”
Rather, the Procurement Act “establishes a framework through which agencies can articulate specific, output-related standards to ensure that acquisitions have the features they want.” The court concluded that the authorization for the president to prescribe policies and procedures focused on establishing an economical and efficient procurement system, policies that must be consistent with the statutory language. It held that the statute could not be read as authority for every agency “to insert a term in every solicitation and every contract establishing health standards for contractors’ employees.” If Congress had intended for the Procurement Act to provide such sweeping authority, it would require “clear congressional authorization.”
Because the court agreed that the plaintiffs would suffer irreparable harm without an injunction and that the potential harm outweighed the harm an injunction would cause to the government and public, the Eleventh Circuit held that granting the preliminary injunction was within the district court’s discretion.
Injunction Limited to the Plaintiffs
While the court held that the Southern District of Georgia correctly issued a preliminary injunction, it limited that nationwide injunction, which halted the implementation of the vaccine mandate when it was issued on December 7, 2021. The authority of district courts to issue national injunctions has been hotly debated over the past decade. For sound reasons, the Eleventh Circuit held that the scope in this case was overly broad.
The Eleventh Circuit held that as a constitutional matter, the role of the judiciary is to resolve cases and controversies. Therefore, the scope of injunctive relief should be limited to the extent necessary to protect the interests of the parties, nothing more. Because complete relief to the parties was possible with a limited injunction, the court held nationwide relief was unnecessary.
The court stated that by design, federal courts across the country may reach different conclusions on the same issue. In rare cases, cutting off that process, which allows for the full development of legal questions and demonstrates appropriate comity to other courts, may be appropriate, but it is a power generally reserved for Congress. Failing to respect the authority of other courts to reach contrary results can “encourage gamesmanship, motivating plaintiffs to seek out the friendliest forum and rush to litigate important legal questions in a preliminary posture.”
For these reasons, despite the fact that mass confusion may ensue, the Eleventh Circuit limited the injunction as follows:
- Federal agencies are enjoined from enforcing the mandate in contracts with any plaintiff state – Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia – and with any member of Associated Builders and Contractors (ABC).
- In competitions where a plaintiff is among the bidders, federal agencies are enjoined from considering a bidder’s compliance with the mandate when deciding whether to award a contract to a plaintiff or a nonparty bidder.
As stated above, the Eleventh Circuit’s decision to limit the injunction can cause significant confusion should federal agencies resume imposing the vaccine mandate. In addition to the states listed above and the members of ABC, there are five other injunctions in place, some of which have been appealed, covering several parties and states:
- Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming (Missouri v. Biden, 576 F. Supp. 3d 622, 635 (E.D. Mo. 2021) (appeal pending)).
- Louisiana, Mississippi, and Indiana, and their agencies (Louisiana v. Biden, 575 F. Supp. 3d 680, 695–96 (W.D. La. 2021) (appeal pending)).
- All covered contracts in Kentucky, Ohio, and Tennessee (Kentucky v. Biden, 571 F. Supp. 3d 715, 735 (E.D. Ky. 2021) (appeal pending)).
- Prohibition against enforcement in Florida (Florida v. Nelson, 576 F. Supp. 3d 1017 (M.D. Fla. 2021) (appeal pending)).
- Prohibition against enforcement in Arizona (Brnovich v. Biden, 562 F. Supp. 123 (D. Az. 2002).
In sum, enforcement is enjoined in five states (Arizona, Florida, Kentucky, Ohio, or Tennessee), against 20 states acting as contractors (Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Carolina, South Dakota, Utah, Wyoming, and West Virginia) – and against any member of Associated Builders and Contractors (ABC).
It is not yet clear whether the federal government will proceed with enforcement of the vaccine mandate against parties not subject to one of the five pending injunctions. Because the COVID-19 pandemic is at (or near) its end and the vaccines have proven far less effective than first hoped, the federal government may exercise discretion and withhold the imposition of the vaccine mandate until the legal questions regarding the president’s authority have been fully resolved. There is no guarantee, however, that will be the case. Until there is clear guidance from the administration, contractors should carefully review solicitations, contracts, and subcontracts for vaccine mandate provisions and analyze whether they are covered by one of the multiple injunctions discussed below.
In addition, the impact of the Eleventh Circuit’s decision regarding the president’s authority under the Procurement Act could be significant. The holding regarding the scope of that authority is much narrower than the D.C. Circuit’s holdings, increasing the likelihood of a Supreme Court decision in the near future.
If you have any questions about what to do in light of these vaccine mandate developments, please contact Richard Arnholt at email@example.com or 202-827-2971.