On Friday, August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit upheld but narrowed a preliminary injunction currently in place against the Biden Administration’s COVID-19 vaccine mandate for federal government contractors (“the mandate”). As discussed in our previous post, in December 2021, the U.S. District Court for the Southern District of Georgia issued a nationwide preliminary injunction blocking the mandate. The Eleventh Circuit’s decision drops the nationwide injunction, and now blocks enforcement of the mandate only with respect to the plaintiffs in the case: Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia, and the construction trade group Associated Builders and Contractors, Inc.
Although narrower in scope, the decision is certainly a blow to the mandate. The Government already had placed a moratorium on enforcing the mandate, and the Eleventh Circuit’s ruling, which found that the plaintiffs were at least reasonably likely to succeed on the merits, could dampen the administration’s enthusiasm for attempting to restart enforcement of the mandate.
However, the decision leaves open a number of questions about the future of the mandate, many of which depend on how aggressively the Government pursues the matter. The upheld-but-narrowed injunction now sits alongside a patchwork of other state-specific injunctions issued by various other federal district courts, including the District of Arizona, Eastern District of Kentucky, Western District of Louisiana, Eastern District of Missouri, and Middle District of Florida. In theory, the Government could seek to re-impose the mandate in jurisdictions not covered by these existing injunctions, though that strikes us as unlikely given a range of political and practical considerations. The Government also could pursue appeals of the decisions from other federal district courts, thereby preserving the possibility of a circuit split and even an eventual decision by the Supreme Court.
But perhaps most interesting, the Eleventh Circuit decision poses substantial questions about the ability of the executive branch to regulate federal contractors. The executive has long been considered to have broad powers to regulate contractors, but Friday’s decision suggests a limit on that authority, at least under the Federal Property and Administrative Services Act (referred to in the decision as the “Procurement Act”). Whether (and how) the Eleventh Circuit’s decision affects other efforts to regulate the contracting community is an open question that will need to be fleshed out in future cases. In the meantime, we will continue to monitor for developments and provide updates here.