US Eleventh Circuit Affirms Injunction Against Federal Contractor Vaccine Mandates But Limits Previously Nationwide Scope

• Published date: 01 September 2022
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Mayer Brown
• Author: Ms Marcia Madsen and Kelyn J. Smith

On August 26, 2022, the Eleventh Circuit Court of Appeals ruled on the US government's authority to enforce COVID-19 vaccination mandates among government contractors under Executive Order ('EO') 14042. When initially faced with the federal government's appeal of Georgia v. Biden, which granted a nationwide injunction blocking the federal government's contractor vaccination mandate,¹ the Eleventh Circuit denied the government's request to stay the district court's injunction. Now, Judge Britt C. Grant has affirmed the injunction of the government's mandate as to the plaintiff states and contractor organization but otherwise vacated the preliminary injunction over 'new and existing procurement contracts between the federal government and nonparties.'² (Georgia v. President of the United States, No. 21-14269, 2022 WL 3703822, at *17 (11th Cir. Aug. 26, 2022).)

The Eleventh Circuit affirmed the lower court decision in holding that the government's vaccine mandate went beyond its authority provided under the Procurement Act (the 'Act'). The court reasoned that the Act was limited to providing 'the President the authority to direct subordinate executive actors as they carry out its specific provisions.' (Id. at *6.) However, to direct such actors 'to go beyond the statute's boundaries would neither 'carry out' the Act nor be 'consistent with' it. . . . [as the] presidential directive can stand only if those subordinate officials have the statutory authority that they are told to exercise.' (Id.) To this point, the court found the vaccination mandate beyond the scope of the Act, as '[n]othing in the Act contemplates that every executive agency can base every procurement decision on the health of the contracting workforce.' (Id.) Thus, according to the court, Congress never intended to provide the president with the authority to enact EO 14042.³

The court went on to distance itself from the D.C. Circuit, finding 'untenable' the D.C. Circuit's interpretation that 'allows the President to issue any procurement directive that has a close enough 'nexus' to economy and efficiency.' (Id. at *10.) Judge Grant was particularly critical of this overly lenient 'nexus' test, which allowed an executive order to 'stand even if there is 'a rather obvious case that the order might in fact increase procurement costs' rather than contributing to economy and efficiency.' (Id. (quoting UAW-Lab. Emp. & Training Corp. v. Chao, 325 F.3d 360, 366-67 (D.C. Cir. 2003)).) The court moved...