August 29, 2022

Eleventh Circuit Concludes That President Biden Likely Exceeded Authority by Issuing Federal Contractor Vaccine Mandate

On August 26, 2022, the Eleventh Circuit held that President Biden likely exceeded his authority by issuing the federal contractor vaccine mandate and affirmed the district court’s injunction prohibiting the federal government’s enforcement of the mandate against the plaintiffs. But the court also determined that the nationwide injunction — which applied to any contractor anywhere in the United States, plaintiff or not — was a “drastic form of relief.” Accordingly, the court vacated the district court’s injunction to the extent that it bars enforcement of the vaccine mandate against contractors who are not parties to the lawsuit.

Vaccine Mandate Injunction Narrowed

As previously reported, on December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction temporarily in Georgia v. President of the United States, halting the enforcement of Executive Order 14042 (EO 14042) nationwide. In doing so, the court joined the U.S. District Court for the Eastern District of Kentucky, which had issued a preliminary injunction in Kentucky v. Biden halting the enforcement of EO 14042 in Kentucky, Ohio and Tennessee. Four additional district courts enjoined enforcement of EO 14042 in Louisiana v. Biden, Missouri v. Biden, Florida v. Nelson and Brnovich v. Biden.

In Georgia, the Eleventh Circuit now affirmed the injunction issued by the district court but concluded that applying its scope beyond the plaintiffs went too far and vacated its nationwide application. The court explained that “[b]y cutting off parallel lawsuits, nationwide injunctions frustrate foundational principles of the federal court system” because they can prevent other courts from independently evaluating the legal issues. And because injunctive relief operates on specific parties, not territories, the Eleventh Circuit determined that the injunction should apply only to the plaintiffs. Accordingly, the court vacated the district court’s injunction to the extent that it bars enforcement of the vaccine mandate against contractors who are not parties to the lawsuit.

Eleventh Circuit Holds Plaintiffs Likely to Succeed in the Claim that President Biden Exceeded His Authority

In Georgia, the Eleventh Circuit determined that the plaintiffs (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia, and Associated Builders and Contractors — a trade organization) are likely to succeed in their claim that President Biden exceeded his authority under the Procurement Act by issuing the vaccine mandate in Executive Order 14042. The court concluded that Congress, in passing the Procurement Act, did not “delegate[] the power to require widespread vaccination” and that “no statutory provision contemplates the power to implement an across-the-board vaccination mandate.”

The court also determined that the plaintiffs showed that they would suffer irreparable harm without the injunction and that the harm they would experience outweighs the harm the injunction would cause the federal government and the public. In reaching this conclusion, the court pointed to the costs the plaintiffs faced through the loss of employees and the time and effort required to ensure compliance with the vaccine mandate. The court also noted that the federal government had “many other tools for stemming the virus and reducing procurement costs” — other than mandating vaccination. The court therefore affirmed the injunction to the extent that it blocks federal agencies from enforcing the mandate in contracts with any plaintiff state or member of Associated Builders and Contractors. The court determined that, if one of the plaintiffs participates as a bidder for a federal government solicitation, federal agencies are prohibited from considering whether a bidder is subject to the vaccine mandate when deciding who should receive the contract.

Next Steps

Although the Eleventh Circuit narrowed the nationwide injunction, the federal contractor vaccine mandate remains enjoined in a total of 25 states: the seven plaintiff states in Georgia (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia) and 18 additional states where injunctions were issued in other cases (Arizona, Kentucky, Ohio, Tennessee, Louisiana, Indiana, Mississippi, Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming and Florida). Appeals of those injunctions are pending in the Fifth, Sixth, Eighth, Ninth and Eleventh Circuits.

At the time of writing, the Safer Federal Workforce Task Force (Task Force) has not updated its guidance for federal contractors in response to the Eleventh Circuit’s decision. The guidance published after the federal contractor vaccine mandate was initially enjoined nationwide states: “the [Federal] Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state . . . [and] subject to a court order prohibiting the application of requirements pursuant to the Executive Order[.]” Now that the nationwide injunction has been lifted, the federal vaccine mandate is arguably enforceable wherever it is not subject to an injunction. 

Contractors should closely monitor the Task Force guidance communications to learn whether the Task Force will be enforcing the federal contractor vaccine mandate where it is not subject to an injunction. 

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