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April 12, 2022 - Federal Procurement

Eleventh Circuit Hears Oral Argument in EO 14042 Preliminary Injunction Appeal

Five Peculiarities of Protests of Federal Supply Schedule Orders

Lawyers for the U.S. government and challengers to the federal contractor vaccine mandate both faced tough questions from an Eleventh Circuit panel in Atlanta, Georgia on Friday, April 8, 2022.  The appeal from the Southern District of Georgia’s decision preliminarily enjoining Executive Order 14042 late last year primarily raises questions about the President’s authority under the Federal Property and Administrative Services Act (often referred to as the Procurement Act), whether plaintiffs had established the requirements for preliminary injunctive relief, and whether the nationwide preliminary injunction issued by the district court was overbroad.  Argument lasted nearly an hour, with Judges Britt C. Grant, J.L. Edmondson, and R. Lanier Anderson III giving each side 25 minutes to both present their case and answer the appellate court’s questions.

Early on, Judge Edmonson pressed the government on the standard of review.  Noting that he thought it was a “hard” case, Judge Edmonson said he “wouldn’t be surprised at the end of the day if” either side ultimately prevailed.  But it was that uncertainty, he said, that made it difficult for him to conclude that the district court had abused its discretion.  “It’s not plain to me that your side is right,” Judge Edmonson told the government, “and I think that that’s enough to say that there’s been no abuse of discretion.”  The government pushed back that any error of law is an abuse of discretion, however, and argued that there should be no special deference in reviewing the purely legal question of the President’s authority under the Procurement Act.

Judge Anderson, meanwhile, expressed some skepticism about the challengers’ likelihood of success on the merits.  “It makes common sense and is consistent with common experience, that if you’re not vaccinated there’s a much greater chance that you’re going to get sick and delay the work,” Judge Anderson said.  And he expressed the view that Executive Order 14042 is consistent with previous executive orders that courts had deemed lawful exercises of authority under the Procurement Act.  “I see no expansion of regulatory authority here,” Judge Anderson said.

On the other hand, one potential sticking point for the court was the health component of Executive Order 14042, which the court pressed the parties to address.  The government argued that the executive order is a directive to agencies, akin to a quality control standard, and does not require modification of existing contracts.  The government further noted that fears of a mass exodus of employees over the vaccine mandate have proven largely unfounded.  Meanwhile, the challengers focused on their position that Executive Order 14042 is not related to the economy and efficiency of federal contracting, as the Procurement Act requires.  And they pointed to the absence of evidentiary data from the government to support the notion that the absence of a vaccination requirement would harm federal procurements.

The panel also pushed counsel for the challengers about the scope of the preliminary injunction.  Judge Grant observed that the justification for nationwide relief provided in the district court was “rather thin.”  And Judge Edmonson expressed his concern that the injunction applied even to those federal contractors who “affirmatively don’t want the relief.”  Counsel for the challenger States pointed out that it would be “really complicated and difficult to understand how this was supposed to work if it didn’t apply to everyone.”  And counsel for challenger Associated Builders and Contractors, Inc., told the panel that nationwide relief was appropriate because it has members in every State.

The Eleventh Circuit is the first court of appeals to receive full briefing and to hear oral argument in a series of cases across the country challenging the Biden administration’s efforts to impose vaccine requirements on federal contractors.  Appeals remain pending in several other circuits, including the Ninth, where the government filed a notice of appeal on April 8, 2022, from a preliminary injunction issued by an Arizona district court earlier this year.  As always, we will continue to monitor and provide updates on these cases as they develop.