Federal Vaccine Contractor Warrant: Eleventh Circuit Partially Overrides Preliminary Injunction – Government Contracts, Procurement and PPPs

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On August 26, 2022, the United States Court of Appeals for the Eleventh Circuit Shrunk the scope of a nationwide injunction that had barred the enforcement of President Joe Biden’s federal contractor COVID-19 vaccine mandate. In December 2021, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction, finding that President Biden likely exceeded his authority under federal Property and Administrative Services Law when he emitted Executive Order 14042. The plaintiffs were the seven states of Alabama, Georgia, Idaho, Kansas, South Carolina, Utah and West Virginia, as well as an industry trade association construction.

In its decision, the Eleventh Circuit agreed with the district court and found that a preliminary injunction was appropriate. However, the Eleventh Circuit found that the district court’s injunction, which applied nationwide to plaintiffs as well as non-parties, was “unhelpful in providing full relief to plaintiffs” in the context new or existing supply contracts. Therefore, the tribunal narrowed the scope of the injunction to cover “any claimant state or member of [the
trade association].”

Interestingly, the Eleventh Circuit’s decision considered the context of the solicitations separately. Citing concessions made by the federal government during the litigation, the court held that the government could not consider a bidder’s compliance with the vaccination mandate during the solicitation process if one of the plaintiffs was part of the group of bidders. Therefore, the court upheld this aspect of the injunction even though it applied to non-parties, but only because it was “necessary to provide full relief to plaintiffs.”

And after?

Ongoing litigation regarding Executive Order 14042 may affect federal contractors and subcontractors. While the Eleventh Circuit’s decision reduced the scope of the Georgia District Court’s injunction, other injunctions remain in place in other states. Federal contractors and subcontractors in the states of Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio and South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wyoming are subject to various injunctions blocking the application of the vaccine contractor’s mandate. Covered contractors and subcontractors in other states face administrative nightmares if the Biden administration decides to enforce the vaccine mandate.

Federal contractors and subcontractors may want to monitor the Federal Workforce Safety Task Force website for any announcements by the Biden administration and federal agencies, such as the General Services Administration and the U.S. Department of Defense, on their intention to enforce the federal contractor’s vaccine mandate in light of the decision of the eleventh circuit. For example, it should be noted that on August 17, 2022, the Federal Workforce Security Task Force updated its advice to federal agencies on COVID-19 workplace safety protocols as they relate to federal employees. These updated guidelines include a pause on the requirement for documentation of vaccination status and the vaccination status of contractors, employees and on-site visitors.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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