The Current Status of Federal Vaccine Mandate Litigation

Sept. 23, 2022 

The federal government has imposed a number of vaccine mandates in response to the COVID-19 pandemic. This week’s update offers a brief summary of the litigation surrounding several of these mandates, including the contractor mandate, federal employee mandate, and Head Start program mandate. The litigation status of additional vaccine mandates will be discussed next week.

Contractor Mandate 

Last month, the Eleventh Circuit upheld a lower court’s injunction of Biden’s executive order requiring employees working on federal government contracts to be vaccinated against COVID-19 (Georgia v. Biden). The court agreed that Biden acted outside the scope of his authority under the Procurement Act when he directed executive agencies to enforce the mandate. However, while the lower court enjoined enforcement of the contractor vaccine mandate nationwide, the Eleventh Circuit narrowed the applicability of the injunction to only plaintiffs. Nevertheless, the federal government has decided to not enforce the mandate anywhere.

There remains a patchwork of ongoing litigation regarding the contractor mandate, and many cases are pending appeal:

·       Enforcement is enjoined in the seven states that were parties to Georgia v. Biden and in federal contracts with members from the Associated Builders and Contractors (Georgia v. Biden)

·       Enforcement is enjoined as applied to federal contracts in Indiana, Louisiana, and Mississippi as parties, but an appeal is pending in the 5th Circuit with oral arguments scheduled for October 3, 2022 (Louisiana v. Biden)

·       Enforcement is enjoined in federal contracts in Florida, but an appeal is pending in the 11th Circuit (Florida v. Nelson)

·       Enforcement is enjoined in federal contracts in Arizona, but an appeal is pending in the 9th Circuit (Brnovich v. Biden)

·       Enforcement is enjoined in federal contracts in Kentucky, Ohio, and Tennessee, but an appeal was argued in the 6th Circuit on July 21, 2022 (Kentucky v. Biden)

·       Enforcement is enjoined in federal contracts in Alaska, Arkansas, Iowa, Montana, Missouri, Nebraska, New Hampshire, North Dakota, and South Dakota, but an appeal was argued in the 8th Circuit on September 21, 2022 (Missouri v. Biden)

Federal Employee Mandate

Currently, the full Fifth Circuit is considering the federal employee mandate (Feds for Medical Freedom v. Biden). In this case, the government is asking the court to uphold the decision reinstating President Biden’s executive order. The court had lifted an injunction issued by a U.S. District Court in Texas blocking enforcement of this order.

The government is arguing that employees opposing the mandate should not have taken their case to federal court, but, in accordance with the Civil Service Reform Act, should have taken their complaints to a federal review board. They also argue that President Biden is equivalent to the CEO of America’s workforce and thus can require private corporations to mandate their employees be vaccinated.

Head Start Centers Mandate

Several plaintiffs have challenged the Biden Administration’s order requiring teachers, contractors, and volunteers of Head Start programs to be fully vaccinated against COVID-19. The U.S. District Court for the Northern District of Texas granted a preliminary injunction preventing enforcement of the mandate in Texas, finding that in promulgating the order, HHS did not follow appropriate administrative rulemaking procedures and the HHS Secretary acted outside the scope of his powers. On March 1st, 2022, the government’s deadline to appeal that decision expired. In Michigan, a district court denied a request for a preliminary injunction, finding that the Secretary did have authority to issue the mandate. On appeal, the Sixth Circuit again denied plaintiffs’ request, finding the HHS Secretary did not violate the APA and did have the statutory authority to promulgate this vaccine requirement. The U.S. District Court for the Western District of Louisiana initially granted a preliminary injunction and later issued a permanent injunction blocking the mandate in the 24 states part of the litigation, stating that this mandate exceeded the scope of the President’s authority, and that he is unable to issue such a mandate without congressional approval.

As cases continue to be appealed, the status of these mandates and their enforcement is continuously changing. Next week, we’ll continue discussing litigation surrounding federal vaccine mandates.