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|Federal contractor vaccine
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.
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’
(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
(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
In a partial dissent, one judge argued that the
plaintiffs have not shown a substantial likelihood of success on
(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
The court said:
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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