Several federal courts have issued preliminary injunctions blocking the Biden Administration from enforcing its federal contractor COVID-19 vaccine mandate.  As discussed in our previous posts, President Biden issued Executive Order 14042 mandating that employees of federal contractors and subcontractors be vaccinated against COVID-19 and take various other workplace safety measures.  Executive Order 14042 relies on the president’s authority under the U.S. Constitution and the Federal Property and Administrative Services Act (“FPASA”) to effectuate this policy.  Prior to issuance of the injunctions, contractors were required to have covered employees fully vaccinated by January 18, 2022.

Numerous states have sued in federal court to block the mandate.  The U.S. District Court for the Eastern District of Kentucky was the first to act, entering a preliminary injunction on November 30, 2021 that enjoins enforcement of the mandate on all covered contracts in Kentucky, Ohio, and Tennessee.  This was followed by a national preliminary injunction issued by the U.S. District Court for the Southern District of Georgia on December 7, 2021, and further rulings in favor of the challengers issued by the U.S. District Courts for the Western District of Louisiana, the Eastern District of Missouri, the Middle District of Florida, and the District of Arizona on December 16, 20, and 22, 2021, and January 27, 2022, respectively.  The Louisiana preliminary injunction is limited by entity rather than geography—it enjoins enforcement of the mandate in any contract, grant, or other like agreement between the federal government and the states of Louisiana, Indiana, and Mississippi, or their agencies.   The Missouri, Florida, and Arizona preliminary injunctions, on the other hand, like that in Kentucky, are limited by geography—the first enjoins enforcement of the mandate on all covered contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming, the second enjoins enforcement in Florida, and the third in Arizona.  The Biden Administration has appealed the first four decisions and we expect it to appeal the Arizona one as well.  The Administration has also sought stays of the underlying cases and other challenges pending those appeals.  This post provides a summary of the injunctions that have issued thus far as well as the status of each case challenging the contractor vaccine mandate.

The decision in Kentucky rests primarily on a finding that President Biden “exceeded his delegated authority under” FPASA in promulgating Executive Order 14042.  Specifically, the judge in Kentucky found that the contractor vaccine mandate lacked sufficient nexus to the purpose of FPASA, which, in the judge’s opinion, is to create an economical and efficient system for procurement and supply.  The judge suggested that an alternative approach could lead to “enact[ing] virtually any measure at the president’s whim under the guise of economy and efficiency.”  In support of this conclusion, the judge cited a recent Supreme Court ruling that the administration did not have authority to impose a nationwide eviction moratorium under a public health statute, but did not delve into the differences between affirmatively regulating private parties and applying conditions to the terms of government contracts. The judge further found that, by exceeding his authority under FPASA, President Biden likely violated the Competition in Contracting Act by potentially excluding contractors who represent the best value to the government, the nondelegation doctrine by using a procurement statute to promulgate a vaccine mandate, and the Tenth Amendment by intruding into an area of law traditionally reserved for the states.

Based on these findings, the judge concluded that the states have a strong likelihood of success on the merits of their suit.  The judge rejected—at least for now—the states’ arguments that the mandate also violates the Spending Clause and various administrative procedure requirements.  The ruling is limited to the three states that are party to that suit.  Thus, it enjoins the federal government only from enforcing the vaccine mandate “for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.”

The Georgia, Missouri, Arizona, and Florida decisions rest on findings similar to those articulated in the Kentucky opinion (i.e. primarily, that President Biden likely exceeded his authority under FPASA).  The Florida decision further relies on a finding that the vaccine mandate violates the Tenth Amendment by intruding into an area of law traditionally reserved to the states.  Although the Missouri and Florida injunctions are limited to all covered contracts in the states participating in those lawsuits, the Georgia injunction applies nationwide, enjoining the Biden Administration “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”  The Arizona decision is discussed more in depth in our updated alert posted in February 2022.

The decision in Louisiana, in contrast, rests on the Tenth Amendment and is limited to contracts involving the states participating in that lawsuit.  The court found that a “reasonably sufficient nexus can exist between EO 14042 and the government’s policy under FPASA to procure and manage properties in an economical and efficient manner” but was “convinced that EO 14042 conflicts with the Tenth Amendment.”  The judge determined that the Executive Order “was clearly and unequivocally motivated by public health policy first and foremost.”  Because it reasoned that the Constitution principally entrusts the safety and health of the people to the states, the Louisiana court concluded that Executive Order 14042 violated the Tenth Amendment’s reservation to the states of rights not delegated to the federal government.  The judge also determined that the plaintiffs were likely to establish that the administration violated the Administrative Procedure Act in promulgating the vaccine mandate.  The judge doubted, however, whether the states had standing to defend their citizens from Executive Order 14042, and concluded “it appears that private contractor[s] seeking to evade EO 14042 and its implementation must file suit” themselves.  He thus enjoined enforcement of the mandate only “in any contract, grant, or other like agreement, . . . whether for services or product and whether existing or new, between” Louisiana, Indiana, and Mississippi, or their agencies, and the federal government.

Determining how the various injunctions will be implemented is not clear.  For example, do the injunctions apply to the workplace safety aspects of the mandate as much as the vaccination portions?  The Georgia court has made clear that its national preliminary injunction does not.  Based on the language of the other courts’ orders and the breadth of those judges’ reasoning, however, the other injunctions may.  The other courts will hopefully further explain their rulings in the near future.

Nevertheless, these orders are not set in stone.  As noted, the Biden Administration has appealed all of the injunctions issued to date.  It has also sought stays of enforcement of the injunctions pending appeal from both the district courts and the responsible Circuit Courts, though those that have been ruled on have been denied. The administration has also sought to stay many of the other cases challenging the contractor mandate pending the appeals.

These other similar state challenges to the federal contractor vaccine mandate remain in various stages. A summary of the status of each case and each appeal, all of which involve allegations and claims that are similar to those at issue in Kentucky, Georgia, Louisiana, Missouri, Arizona, and Florida, is set forth below.

Arizona Lawsuit

  • On September 15, 2021, Arizona filed a lawsuit in the U.S. District Court for the District of Arizona challenging the federal contractor vaccine mandate.
  • On January 27, 2022, the court issued a preliminary injunction effective in Arizona.
    • *We anticipate that the Biden administration will appeal the injunction to the Ninth Circuit.

Florida Lawsuit

  • On October 28, 2021, Florida filed a lawsuit in the U.S. District Court for the Middle District of Florida challenging the federal contractor vaccine mandate.
  • On December 30, 2021, the court entered a preliminary injunction effective in Florida based on its Dec. 23, 2021 ruling.
    • The Biden Administration has appealed the injunction to the Eleventh Circuit.
  • Since the Biden administration filed for appeal,
    • The Eleventh Circuit has:
      • Ordered briefing to be completed by approximately April 13, 2022.
      • Received an unopposed motion to vacate the briefing schedule and hold the appeal in abeyance pending resolution of the appeal in the Georgia suit, which is also being heard by the Eleventh Circuit.
    • The district court has:
      • Stayed further proceedings pending resolution of the appeal, except to the extent it intends to address the balance of the motion for a preliminary injunction that it retained under advisement.

Georgia Lawsuit

  • On October 29, 2021, seven states (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia) filed a lawsuit in the U.S. District Court for the Southern District of Georgia challenging the federal contractor vaccine mandate.
  • On December 7, 2021, the court issued a preliminary injunction effective on all covered contracts nation-wide.
    • The Biden Administration has appealed the injunction to the Eleventh Circuit.
  • Since the Biden administration filed for appeal,
    • The Eleventh Circuit has:
      • Denied the Biden Administration’s motion to stay the injunction pending appeal.
      • Expedited the appeal. Briefing is to be completed by February 22, 2022. Oral argument is scheduled for April 8, 2022.
    • The district court has:
      • Stayed further proceedings pending final resolution of the appeal.
      • Denied the Biden Administration’s request to “clarify” the scope of the preliminary injunction, but in doing so made clear that it applies only to the vaccine portion of the mandate (i.e. it does not apply to the workplace safety aspects of the mandate, such as the requirements for masking and physical distancing).

Missouri Lawsuit

  • On October 29, 2021, ten states (Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming) filed a lawsuit in the U.S. District Court for the Eastern District of Missouri challenging the federal contractor vaccine mandate.
  • On December 20, 2021, the court issued a preliminary injunction effective in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.
    • The Biden Administration has appealed the injunction to the Eighth Circuit.
  • Since the Biden administration filed for appeal,
    • The Eighth Circuit has:
      • Ordered briefing to be completed by approximately May 2, 2022.
    • The district court has:
      • Stayed further proceedings pending resolution of the appeal.

Texas Lawsuit

  • On October 29, 2021, Texas filed a lawsuit in the U.S. District Court for the Southern District of Texas challenging the federal contractor vaccine mandate.
  • On December 10, 2021, the court stayed the case.

Kentucky Lawsuit

  • On November 4, 2021, three states (Kentucky, Ohio, and Tennessee) filed a lawsuit in the U.S. District Court for the Eastern District of Kentucky challenging the federal contractor vaccine mandate.
  • On November 30, 2021, the court issued a preliminary injunction effective on all covered contracts in Kentucky, Ohio, and Tennessee.
    • The Biden Administration has appealed the injunction to the Sixth Circuit.
  • Since the Biden administration filed for appeal,
    • The Sixth Circuit has:
      • Denied the Biden Administration’s motion to stay the injunction pending appeal.
      • Ordered briefing to be completed by March 23, 2022.
    • The district court has:
      • Denied the administration’s motion to stay the injunction pending appeal.
      • Stayed further proceedings pending final resolution of the appeal.

Louisiana Lawsuit

  • On November 4, 2021, three states (Louisiana, Indiana and Mississippi) filed a lawsuit in the U.S. District Court for the Western District of Louisiana challenging the federal contractor vaccine mandate.
  • On December 16, 2021, the district court:
    • Issued a preliminary injunction effective on all contracts between the federal government and Louisiana, Indiana, and Mississippi, or their agencies
      • The Biden Administration has appealed the injunction to the Fifth Circuit.
    • Stayed further proceedings pending further appellate action.
  • Since the Biden administration filed for appeal,
    • The Fifth Circuit has:
      • Ordered briefing on the appeal of the injunction decision to be completed by May 2, 2022.

Oklahoma Lawsuit

    • On November 4, 2021, Oklahoma filed a lawsuit in the U.S. District Court for the Western District of Oklahoma challenging the federal contractor vaccine mandate.
    • On December 13, 2021, briefing on Oklahoma’s request for a preliminary injunction was completed.
    • In January 2022, the parties filed supplemental briefing on the impact of recent SCOTUS decisions regarding the OSHA and CMS vaccination mandates.

In light of the many upcoming decisions to be issued and the significant possibility of conflicting orders, we expect to see significant developments in this area in the coming weeks.  Although it is possible that the various cases could be consolidated before a single district court, it currently appears that these matters will continue to proceed in a traditional fashion, i.e., decisions rendered by each district court which then are appealed to the responsible Circuit Court.  (This contrasts with the challenges to the OSHA emergency temporary standard on COVID-19, which were filed directly to the appellate courts pursuant to a special provision in OSHA’s animating statute and which was heard by a single appellate court chosen by lottery before being appealed to the Supreme Court.)  Ultimately, to resolve conflicts between Circuit Court decisions, or on review from a consolidated appeal, the federal contractor vaccine mandate must be addressed by the Supreme Court.

We will provide updates as events unfold and the deadline for vaccinations approaches.  Meanwhile, it is important to remember that although the issued preliminary injunctions enjoin the federal government from enforcing the contractor vaccine mandate, they do not preclude employers from unilaterally imposing their own vaccine requirements as they await resolution of this issue.

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Photo of Frederic Levy Frederic Levy

Frederic Levy is one of the nation’s leading suspension and debarment lawyers, focusing his practice on the resolution of complex compliance and ethics issues. He has successfully represented numerous high-profile corporations and individuals under investigation by the government in civil and criminal matters…

Frederic Levy is one of the nation’s leading suspension and debarment lawyers, focusing his practice on the resolution of complex compliance and ethics issues. He has successfully represented numerous high-profile corporations and individuals under investigation by the government in civil and criminal matters, including False Claims Act cases, and in suspension and debarment proceedings to ensure their continued eligibility to participate in federal programs. He has also conducted numerous internal investigations on behalf of corporate clients, particularly in the areas of program fraud and export controls, and often involving sensitive personnel or fiduciary matters. He has also advised corporations in voluntary or mandatory disclosures to a variety of federal agencies. Mr. Levy regularly counsels clients on government contract performance issues, claims and terminations, and he litigates such matters before the boards of contract appeals and in the Federal Circuit.

Photo of Tyler Evans Tyler Evans

Tyler Evans is a partner in the firm’s Washington, D.C. office and a member of the government contracts group.  His practice covers multiple subject-matter areas, including research and development, non-traditional contracting, intellectual property, contract negotiations, flow-down requirements, small business issues, sourcing restrictions, costs…

Tyler Evans is a partner in the firm’s Washington, D.C. office and a member of the government contracts group.  His practice covers multiple subject-matter areas, including research and development, non-traditional contracting, intellectual property, contract negotiations, flow-down requirements, small business issues, sourcing restrictions, costs, and compliance.

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.

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A.J. Carvalho is an associate in the Washington office, where he practices in the Patent Litigation, False Claims Act, and White Collar Defense and Investigations Practice Groups, and also maintains an active pro bono practice.

Prior to attending law school, A.J. worked at…

A.J. Carvalho is an associate in the Washington office, where he practices in the Patent Litigation, False Claims Act, and White Collar Defense and Investigations Practice Groups, and also maintains an active pro bono practice.

Prior to attending law school, A.J. worked at Walter Reed National Military Medical Center coordinating exploratory clinical research studies related to blast injuries, particularly amputation, and concomitant conditions.