Federal Contractor Vaccine Mandate Still in Limbo

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Merle M. DeLancey Jr. and Samarth Barot 

Merle M. DeLancey Jr. headshot image
Samarth Barot headshot image

Since December 2021, after a Federal District Court for the Southern District of Georgia issued a nationwide injunction against the federal contractor vaccine mandate, compliance with the federal contractor vaccine mandate has been in limbo. Many hoped that, on appeal, the Eleventh Circuit would bring some clarity to vaccine requirements. Unfortunately, that is not the case. On August 26, 2022, the Eleventh Circuit agreed that a preliminary injunction was warranted, however the Court narrowed the applicability of the injunction. The court held that the injunction should only apply to the specific plaintiff-states and trade associations in the case, and should not “extend[] nationwide and without distinction to plaintiffs and non-parties alike.” Georgia v. President of the United States, No. 21-14269 (11th Cir. Aug. 26, 2022).

The Eleventh Circuit agreed with the lower court that a preliminary injunction was warranted, stating that while “Congress crafted the Procurement Act to promote economy and efficiency in federal contracting, the purpose statement does not authorize the President to supplement the statute with any administrative move that may advance that purpose.” Therefore, the Court held that “the President likely exceeded his authority under the Procurement Act when directing executive agencies to enforce” the vaccine mandate.

But the Court disagreed with the scope of the injunction, finding that “the district court relied on improper considerations to justify its nationwide injunction.” The Eleventh Circuit held that nationwide injunctions “frustrate foundational principles of the federal court system” by “motivating plaintiffs to seek out the friendliest forum and rush to litigate important legal questions in a preliminary posture.” Therefore, the Court found that “the scope of th[e] injunction—extending nationwide and without distinction to plaintiffs and nonparties alike—was overbroad,” and that the injunction should only apply to the specific plaintiffs. The plaintiffs include Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, and construction trade group Associated Builders and Contractors Inc. (“ABC”). (Members of ABC are all over the country, and this injunction still applies to those members regardless of whether they are from the plaintiff states.)

While the nationwide injunction has been lifted, the future of the federal contractor vaccine mandate remains uncertain at best. After the District Court’s nationwide injunction, the Federal Government issued guidance fully suspending its enforcement of the federal contractor mandate. See For Federal Contractors | Safer Federal Workforce. At this point, it remains to be seen whether the Federal Government will change its position in light of the Eleventh Circuit’s ruling. That said, given that several other courts have enjoined the mandate—and the obvious difficulty in trying to enforce the federal contractor vaccine mandate in a piecemeal fashion in states not covered by any injunctions—it seems unlikely that the Federal Government will change its position.

Stay tuned for further developments.

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