On August 26, 2022, the United States Court of Appeals for the Eleventh Circuit narrowed the nationwide injunction of Executive Order 14042, which requires federal contractors and employees who work on or in connection with a covered federal contract, or share a workplace with another employee who works on or in connection with such contracts, to be fully vaccinated against COVID-19. The Eleventh Circuit held that the nationwide injunction issued by a federal district court in Georgia in January 2022 was overly broad. The Eleventh Circuit narrowed the injunction to apply to only the federal procurement contracts and selection processes involving the actual parties to the case, which include the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, as well as the Associated Builders and Contractors, a construction-industry trade organization. The Eleventh Circuit left the injunction in place “to the extent that it bars federal agencies from considering the enforceability of the mandate when deciding who should receive a contract, if any plaintiff belongs to the pool of bidders.” The case is Georgia v. President of the United States.

The Eleventh Circuit stated that the plaintiffs in the Georgia v. President of the United States case will likely succeed on their underlying claim that the mandate exceeds the President’s authority, rejecting the Administration’s argument that the Procurement Act, on which President Biden relied, allows the President to take any action that enhances efficiency. The Eleventh Circuit therefore agreed with the federal court that “the President likely exceeded his authority under the Procurement Act when directing executive agencies to enforce [the COVID-19 vaccine] mandate.” But ultimately, the Eleventh Circuit narrowed the nationwide reach of the Georgia federal court’s injunction, finding that the injunction was overly broad and that extending the injunction beyond the parties to the original lawsuit was unfounded.

Despite the Eleventh Circuit’s action, court watchers expect that there will be further lawsuits in other jurisdictions on the issue of the enforceability of Executive Order 14042, and notably the Biden Administration has not changed its stance on the vaccine mandate for federal contractors. Ballard Spahr regularly advises federal contractors on this issue; and recommends that federal contractors consult with counsel regarding such contracts and vaccine mandates.

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