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Federal contractor vaccine mandate:
Court reduces scope of nationwide

State of Georgia v. President of US (11th Cir 08/26/2022)
Sent to Custom Alerts™ subscribers on 08/27/2022

Executive Order 14042 directs executive agencies to include a clause in procurement agreements requiring federal contractors to comply with workplace safety rules that require Covid-19 vaccinations.

The trial court issued a nationwide preliminary injunction, finding that the plaintiffs were likely to succeed on their claim that the order exceeded the President's authority under the Procurement Act. The 11th Circuit upheld the injunction but greatly narrowed its scope.

(1) The 11th Circuit agreed that the plaintiffs were likely to succeed on the merits, and also satisfied the other requirements for a preliminary injunction, and upheld the issuance of a preliminary injunction.

          (a) The plaintiffs have a substantial likelihood of success on the merits. The court said that "the Procurement Act is all about creating an 'economical and efficient system' for federal contracting. That is worlds away from conferring general authority for every agency to insert a term in every solicitation and every contract establishing health standards for contractors’ employees."

          (b) Plaintiffs will suffer an irreparable injury unless the injunction is granted. Unrecoverable monetary loss is an irreparable harm. In this case, that would include lost employees, as well as the time and effort needed to identify employees covered by the mandate and implement technology to track their vaccination.

          (c) The court said "no abuse of discretion occurred when the district court balanced the plaintiffs’ harm from the mandate against the federal government’s and the public’s interests in its enforcement. Both sides have articulated powerful interests. *** And until a final decision is reached on the merits of the challengers’ claims, many other tools for stemming the virus and reducing procurement costs remain at the federal government’s disposal."

In a partial dissent, one judge argued that the plaintiffs have not shown a substantial likelihood of success on the merits.

(2) The court held that a nationwide injunction was too broad. The court therefore limited the injunction so that it enjoins federal agencies from enforcing the mandate only against the plaintiffs – the seven plaintiff States and their agencies and members of Associated Builders and Contractors.

The court said:

When considering a request to enjoin a national rule or policy—especially on a preliminary basis—a district court should thoroughly analyze the extent of relief necessary to protect the plaintiffs from harm, taking care that the remedy issued is not "more burdensome to the defendant than necessary to provide complete relief to the plaintiffs."

The country has 94 federal district courts and 12 regional circuit courts, and when a "regulatory challenge involves important and difficult questions of law, it is especially vital that various courts be allowed to weigh in so that the issues can percolate among the courts."

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