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 on to find irreparable harm requirements satisfied, too, noting the “obvious costs of complying with the contractor vaccine mandate—including lost employees, as well as the ‘time and effort’ needed to identify employees covered by the mandate and implement technology to track their vaccination.” (Id. at *12-13.)
Finally, regarding the scope of the district court’s decision, the Eleventh Circuit observed that “[t]his lawsuit was one of many concerning the contractor vaccine mandate in district courts around the nation” but “was the only one to enjoin the defendants from enforcing the mandate . . . in all covered contracts in any state or territory of the United States of America.” (Id. at *3.) The Eleventh Circuit took issue with nationwide application of the injunction, in addition to nationwide injunctions generally, noting that they “push against the boundaries of judicial power, and very often impede the proper functioning of our federal court system.” (Id. at *13.) The court went on to emphasize how nationwide injunctions cut against the non-binding nature of parallel litigation that promotes non-uniformity essential to the functioning of the federal court system. (Id. at *13-15.) The court found the district court’s reasoning for nationwide application insufficient (id. at *16) and held that when “courts can offer complete relief to . . . plaintiffs in federal regulatory challenges without issuing a nationwide injunction . . . . [they] must.” (Id. at *17).
Judge Lanier Anderson’s dissent is notable as he concluded that “the Procurement Act clearly authorizes the President’s actions here . . . [and] Appellees have failed to establish a substantial likelihood of success on the merits.” (Id. at *25 (emphasis added).) Judge Anderson primarily took issue with “the lead opinion’s attempts to undermine the consensus understanding of the Act,” particularly in its insistence “that delegated authority must always be tied to a specific statutory provision” and “that the Act’s purpose is not a provision of the Act that the President is authorized to carry out.” (Id. at *19-20.) On both fronts, Judge Anderson points to Supreme Court and Eleventh Circuit precedents that “disavow any such requirement[s].” (Id. (citing Gundy v. United States, 139 S. Ct. 2116, 2127 (2019) (plurality opinion); Florida v. Dep’t of Health & Human Servs., 19 F.4th 1271, 1288 (11th Cir. 2021).) Furthermore, Judge Anderson provides support for the proposition that the regulatory authority asserted via EO 14042 is normal within the historical context of presidential authority over government contracting and responses to public health crises. (Id. at *20-24.)
2 “We agree that the plaintiffs’ challenge to the mandate will likely succeed and that they are entitled to preliminary relief. Even so, because the injunction’s nationwide scope is too broad, we vacate it in part.” (Id. at *1.)
3 “[W]hen Congress wants to further a particular economic or social policy among federal contractors through the procurement process. . . it enacts explicit legislation. . . . Here, in contrast, no statutory provision contemplates the power to implement an across-the-board vaccination mandate. . . . [B]are authority to set contract specifications and terms is not enough to show that when Congress passed the Procurement Act it contemplated the general power to mandate vaccination.” (Id. at *8, 11.)