UPDATED AS OF 9/1/2022: On August 31, 2022, the Safer Federal Workforce Task Force officially announced that the Federal Government will not enforce the federal government contractor vaccination mandate, absent further written notice. The Task Force announcement is posted on its website here.

An analysis of the Eleventh Circuit decision that preceded this announcement is below.

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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.

Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch is co-chair of the firm’s Government Contracts practice group. Her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions…

Jennifer Plitsch is co-chair of the firm’s Government Contracts practice group. Her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on contract proposal, performance, and compliance questions as well as transactional and legislative issues. Her practice also includes bid protest and contract claims and appeals litigation before GAO, agency boards and the federal courts. Ms. Plitsch has particular expertise in advising clients in the pharmaceutical and biologics industry. She advises a range of pharmaceutical and biologics manufacturers on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as research and development contracts and grants with various federal agencies. She also has significant experience advising on the requirements of various programs under which vaccine products and biodefense medical countermeasures are procured by the Government.

Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

Photo of Sarah Schuler Sarah Schuler

Sarah Schuler is an associate in the firm’s Washington, DC office. She is a member of the Government Contracts Practice Group, advising clients across a broad range of government contracting issues. She also maintains an active pro bono practice.