Member Article

On September 9, 2021, President Biden issued Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which directs federal agencies to include in certain federal contracts a clause requiring the contractor to comply with all guidance published by the Safer Federal Workforce Task Force. Included in those guidelines is a mandate that all federal contractor employees be vaccinated against COVID-19 unless the employee is legally entitled to an accommodation. 

On December 7, 2021, a federal district court judge for the Southern District of Georgia issued a preliminary injunction in Georgia v. Biden, No. 1:21-cv-163, that barred enforcement of the vaccine mandate for federal contractors and subcontractors in any state or territory of the United States. The United States Court of Appeals for the Eleventh Circuit elected not to expedite the government’s appeal and held oral argument on April 8, 2022. As a result of the nationwide injunction, the Safer Federal Workforce Task Force announced it would suspend enforcement of the COVID-19 vaccination mandate pending resolution of the government’s appeal. 

On Friday, August 26th, nine months after issuance of the nationwide injunction against enforcement of the federal contractor COVID-19 vaccination mandate, the Eleventh Circuit issued its decision, concluding that the vaccine mandate was outside the scope of the President’s authority under the Federal Property and Administrative Services Act (the Procurement Act). However, while it found that the federal contractor COVID-19 vaccine mandate exceeded the President’s authority, the Eleventh Circuit also found that the district court had exceeded its authority when it issued a nationwide injunction against enforcement of the mandate. 

In finding that President Biden did not have the authority to issue the federal contractor vaccine mandate, the Eleventh Circuit relied on the “major questions doctrine” and concluded that Congress had not clearly delegated to the President the authority to issue a vaccine mandate under the Procurement Act:

In short, the President’s authority to issue Executive Order 14042, and executive agencies’ authority to implement it, depend on whether Congress delegated the power to require widespread vaccination through the Procurement Act. All signs suggest that Congress has retained this power rather than passing it on. Agencies’ bare authority to set contract specifications and terms is not enough to show that when Congress passed the Procurement Act it contemplated the general power to mandate vaccination. The plaintiffs thus are likely to succeed on their claim that the President exceeded his authority by issuing the contractor vaccine mandate, and have satisfied “the most important preliminary-injunction criterion.” Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1127–28 (11th Cir. 2022).

In holding that the district court’s nationwide injunction was too broad, the Eleventh Circuit discussed the dangers inherent in nationwide injunctions, which cut off litigation in different circuits, stating:

By cutting off parallel lawsuits, nationwide injunctions frustrate foundational principles of the federal court system. They encourage gamesmanship, motivating plaintiffs to seek out the friendliest forum and rush to litigate important legal questions in a preliminary posture. They disturb comity by hindering other courts from evaluating legal issues for themselves. And they escalate pressure on the Supreme Court docket by limiting percolation and raising the stakes of individual lower-court decisions.

The Eleventh Circuit concluded that the district court’s injunction was too broad because it relied on improper or unsupported considerations:

Here, the district court relied on improper considerations to justify its nationwide injunction. It emphasized that members of Associated Builders and Contractors are located “all over the country,” and that, in recent years, they were collectively awarded most federal construction contracts. Stretching logic, the court reasoned that if it “were to enjoin the enforcement of the mandate only in the Southern District of Georgia or only in Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia,” then “members would not have injunctive relief as to covered contracts in other states.” But injunctive relief operates on specific parties, not geographic territories, and identifying the plaintiff States and trade association members is possible.

The district court’s other reason for a nationwide remedy was that narrower relief “would prove unwieldy and would only cause more confusion.” This statement is ambiguous: it may reflect either the lack of uniformity that would result from a well-tailored injunction, or the difficulty of structuring an injunction that allows enforcement against nonparties while still providing relief to the plaintiffs. The former is an inappropriate consideration, and the latter is unsupported by the district court’s analysis or the record.

Accordingly, the Eleventh Circuit affirmed the district court’s decision that the federal contractor COVID-19 vaccine mandate exceeded the President’s authority but revised the injunction to bar only:

federal agencies from enforcing the mandate against the plaintiffs—the seven plaintiff States and their agencies and members of Associated Builders and Contractors—and to the extent that it bars the federal government from considering a bidder’s compliance with the mandate when deciding whether to grant a contract to a plaintiff or to a nonparty bidder.

The Eleventh Circuit vacated the remainder of the district court’s injunction, stating that “[a]s a result, the federal government is no longer enjoined from enforcing the mandate in new and existing procurement contracts be-tween the federal government and nonparties, or in the selection process following solicitations in which no plaintiff participates as a bidder.” 

There is a good possibility that the Eleventh Circuit’s decision will be appealed to the U.S. Supreme Court by all parties to the case, given both that the Eleventh Circuit’s decision conflicts with the D.C. Circuit Court of Appeals interpretation of the President’s scope of authority under the Procurement Act and the fact that it rescinds the nationwide injunction. 

In the meantime, subject to any requests that the Eleventh Circuit stay enforcement of its order pending an appeal to the U.S. Supreme Court, federal contractors should monitor the Safer Federal Workforce Task Force website for information on how the Task Force will address the Eleventh Circuit’s decision, including whether the federal government will seek to enforce the Task Force’s federal contractor vaccine mandate against federal contractors not covered by the injunction as revised by the Eleventh Circuit (i.e., any federal contractor who was not a plaintiff in Georgia v. Biden or a member of Associated Builders and Contractors). We have previously addressed some steps federal contractors may take in preparation for a potential need to comply with the Safer Federal Workforce Task Force guidance. 

This is not the final word on the legality of the federal contractor vaccine mandate. The Eleventh Circuit’s decision might be appealed to the Supreme Court, which could affirm the legality of the mandate. Accordingly, federal contractors should continue to monitor this issue and any new legal developments, including the potential that they might still have to comply with the mandate.

Eleventh Circuit Judges Grant, Anderson, and Edmondson issued the court’s decision. Judge Grant wrote the opinion, with Judge Edmondson concurring in the result. Judge Anderson concurred with the part of the decision that narrowed the scope of the injunction, but dissented from Judges Grant and Edmondson’s determination that President Biden did not have the authority to issue the federal contractor vaccine mandate. 

We will continue to monitor developments in the court-ordered injunctions and guidance from the Safer Federal Workforce Task Force. If you have any questions, please contact a Schwabe attorney. 

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

 

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