The COVID-19 Vaccine Mandate Roller Coaster Continues: The 11th Circuit Ends The Nationwide Injunction Of The Government Contractor Vaccine Mandate

• Published date: 30 August 2022
• Subject Matter: Government, Public Sector, Coronavirus (COVID-19), Government Contracts, Procurement & PPP, Government Measures
• Law Firm: Arnold & Porter
• Author: Ms Kristen Ittig and Thomas Pettit

Introduction

COVID-19 vaccine mandates have been among the most divisive issues in the United States in recent times. This has resulted in extensive litigation challenging the legitimacy of various vaccine mandates, particularly those mandating that private employers require their employees to be vaccinated against COVID-19. Executive Order ("EO") 14042, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, has been at the forefront of these lawsuits. If not enjoined, EO 14042 requires covered federal contractor employees to be fully vaccinated against COVID-19. We have discussed the scope of EO 14042 and the implementing Safer Federal Workforce Task Force (the "Task Force") Guidance here, here, and here.

On December 7, 2021, the US District Court for the Southern District of Georgia issued a nationwide preliminary injunction prohibiting the government from enforcing EO 14042's vaccine mandate—the only nationwide injunction issued to date.¹ The government appealed the injunction. On August 26, 2022, the US Court of Appeals for the Eleventh Circuit issued its decision, which has two significant impacts. First, the 11th Circuit is the first appellate court to address the legality of EO 14042 and affirmed that the vaccine mandate is likely unlawful. Second, the 11th Circuit narrowed the nationwide preliminary injunction to effectively cover only the parties to the litigation.² The government is now enjoined from (1) enforcing EO 14042's vaccine mandate against the plaintiff states (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia) "and members of the Associated Builders and Contractors"; and (2) considering whether any offeror (not just the plaintiffs and their members) complies with the vaccine mandate when evaluating proposals and awarding contracts in procurements where one of the plaintiffs is an offeror.

Presuming the government takes the opportunity to renew enforcement, this means that every contractor will be required to comply with EO 14042's vaccine mandate unless they (a) are one of the plaintiff states; (b) are a member of Associated Builders and Contractors, Inc. ("ABC"); (c) are covered by a different injunction; or (d) file a separate lawsuit and obtain injunctive relief. It also means that, unless one of the plaintiff states or an ABC member is competing in a procurement, agencies may consider an offeror's compliance with EO 14042 when evaluating proposals.

Status of Litigation Challenging EO 14042

State governments have led the fight against the federal contractor vaccine mandate, with one trade organization joining in Georgia v. Biden. Despite commentary that the mandate would be hard to challenge, those lawsuits have succeeded almost universally.³ Those courts have held that President Biden exceeded his authority under the Federal Property and Administrative Services Act of 1949 ("FPASA"), which is the statute cited in EO 14042 as granting the authority to require COVID-19 vaccination. Below is a chart summarizing the various injunctions and pending cases:

District Court Case	Enjoined Enforcement of Mandate	Appeal	Status
Georgia v. Biden, 574 F Supp. 3d 1337 (S.D. Ga. 2021)	Yes	Georgia v. President of the United States, No. 21-14269, 2022 WL 3703822 (11th Cir. Aug 26, 2022)	Enforcement initially enjoined nationwide. On appeal, the 11th Circuit narrowed the injunction, as discussed herein.
Florida v. Nelson, 576 F Supp.3d 1017 (M.D. Fl. 2021)	Yes	Florida v. Nelson, No 22-10165 (11th Cir.)	Enforcement enjoined as to all covered contracts in Florida. Appeal is pending in the 11th Circuit (appeal was stayed pending the 11th Circuit's decision in Georgia v. Biden).
Missouri v. Biden, 576 F Supp.3d 622 (E.D. Mo. 2021)	Yes

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