Eleventh Circuit Vacates Nationwide Injunction Of Contractor Vaccine Mandate And Injects Significant Uncertainty Back Into Government Contracts

• Published date: 01 September 2022
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Jenner & Block
• Author: Mr Matthew Haws, Sati Harutyunyan and Ishan K. Bhabha

On Friday, August 26, 2022, the Eleventh Circuit brought back to life complicated legal, management, and labor issues related to COVID-19 vaccine requirements for many government contractors. By significantly narrowing a nationwide injunction, the court left a complicated patchwork quilt of half-adozen more narrow injunctions and significant uncertainty for contractors.

The Eleventh Circuit's decision follows a December 2021 district court order that enjoined nationwide the Biden Administration's enforcement of the COVID-19 vaccine mandate for federal contractors. The district court's decision'issued just weeks before the January 18, 2022 deadline for contractor compliance'effectively halted enforcement of the vaccine mandate "for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America."

Already dealing with inflation, workforce, and supply chain challenges, many contractors appeared to welcome the reprieve. But the straightforward relief provided by the nationwide injunction disappeared on Friday, August 26, 2022, when a three-judge panel of the US Court of Appeals for the Eleventh Circuit issued an opinion in the Biden Administration's appeal of the district court's order.

A divided panel agreed with the court below that the plaintiffs were entitled to an injunction, but it disagreed (unanimously) that a nationwide injunction was appropriate. On that basis, the court "vacate[d] the injunction to the extent that it bars enforcement of the mandate against nonparty contractors through new and existing contracts." The practical effect for government contractors is that this decision leaves contractors facing a complicated and unwieldy landscape party-specific and statespecific injunctions.

Here are the three things every government contractor is asking:

1. What did the Eleventh Circuit hold?
2. What is the status of the contractor vaccine mandate following this decision?
3. What should I be doing now?

What did the Eleventh Circuit hold?

The Eleventh Circuit's substantive holding on the authority of the President to issue a vaccine mandate is what many expected and echoes the reasoning of other courts enjoining the vaccine mandate. Focusing on the first element required for a preliminary injunction'whether the plaintiff is likely to succeed on the merits'the court held the Federal Property and Administrative Services Act, or Procurement Act, does not provide the President with authority to issue direction of the type found in the vaccine mandate. The court began by noting that the federal government has broad power to "fix the terms and conditions upon which it will make needed purchases....But that authority rests in Congress's hands in the first instance'not the President's." ¹ It then focused on whether Congress "authoriz[ed] the President to make procurement agreements contingent on...