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A three-member panel of federal judges upheld an injunction that stopped the mandate that federal contractors have COVID vaccinations. It was not a unanimous decision, yet the same panel to which the Biden administration had appealed the injunction, agreed that the injunction should not be nationwide. Confusing? You bet. The Federal Drive with Tom Temin talked to Jenner and Block partner Matthew Haws to help untangle this latest development in this long running situation.

Interview transcript:

Tom Temin: This is the 11th circuit court, a three-judge panel, what are they actually saying here? Yes. Okay, for the injunction, but only where we have jurisdiction?

Matthew Haws: Exactly. They said two main things. And again, it’s kind of important to have the context here. This is, as you said, a long running saga. You’ve got the Biden administration’s executive order, requiring several things, but most notably, the contractor employees and others in the worksite be vaccinated against COVID-19. As with everything in America, this went into the courts right away when we saw a series of decisions with injunctions. The interesting thing about this decision is that it was the only nationwide injunction. So you had some other district courts, federal district courts, that issued more limited injunctions, perhaps for a handful of states where the state government was a plaintiff before the court or for other limited parties before it. The Southern District of Georgia, which is the original decision here, issued a nationwide injunction, saying that the contract or COVID vaccine mandate could not be enforced against contractors anywhere in the country. That, of course, made it a lot easier for government contractors to figure out what to do. They no longer had to look at whether they were performing in a certain state or located in a certain state that was subject to an injunction. They could just move on down their priority list of other pressing issues, inflation, labor. But of course, they knew that this was going to go up on appeal. And that’s what happened. This appeal has been one of the faster track ones. We had oral arguments back in April. And then we got a decision the Friday before last. So what did this decision do? In the midst of the status quo, which was a nationwide injunction, did two interesting things. One, it upheld that preliminary injunction. It found that the plaintiffs were likely to prevail on the merits. And we can talk about some of the logic of what they why they held that. But then too, it narrowed the scope of the injunction. And so it pulled back that nationwide injunction that at least gave everyone a lot of certainty. And it said that it was only appropriate to give injunctive relief to the parties before the court. So just a handful of states that were before it. And this is important, only those state governments and their agencies themselves. So not contractors operating within those states, but only the entities before the court itself. Then interestingly, here, there was an industry group, the Associated Builders and Contractors that had also been added as a plaintiff. And so it said its members also were subjected to this injunction. They could not have the vaccine mandate enforced against them. So a significant narrowing of the scope.

Tom Temin: And this has got to be confusing for contracting officers on behalf of the federal agencies, no less than it is for contractors?

Matthew Haws: Absolutely. Contracting officers just like businesses really want certainty. Everybody wants to do the right thing they want to do their jobs well. But yes, this creates a lot of uncertainty, lack of clarity about what they’re supposed to be doing on which contracts and when.

Tom Temin: We’re speaking with Matt Haws, attorney and a partner at Jenner and Block. So what then should companies do that are trying to get their staffs back on site at federal agencies to do the work of the government?

Matthew Haws: Yeah, so  all eyes shifted to the federal government, the ball is in their court when faced with this decision. So of course, technically, they get to decide if they want to appeal it up to the Supreme Court. We’re waiting to see that. Now you got to remember, this is a Supreme Court that has already ruled on similar issues with OSHA requirements last year and found that those were outside of the President’s authority. So there’s some complicated strategic decisions to be made by the Department of Justice in the administration about an appeal and so pending that all eyes shifted to the Safer Federal Workforce Task Force. Again, the way this rule has worked, is that the executive order told the government to go out and create a clause and that clause pointed everyone to a website which is the Safer Federal Workforce Task Force website. Now that website after this lower court decision was issued, had a notice on it that the requirements of the executive order would not be enforced until there was further written notice due to a preliminary nationwide injunction. So the whole question was okay, now that that preliminary nationwide injunction has gone away, it’s no longer nationwide, what’s the government going to do? Will they give us some clarity about their enforcing it? On a regional level, I mentioned there were a whole bunch of different lawsuits out there. And so we now have this patchwork quilt of different states that are subject to an injunction or not, will the federal government create some clarity? Last week, we did get an update to the Safer Federal Workforce Task Force website. It’s a little unclear what it did. I think most people are reading that as a response to this narrowing of the injunction. They did some reformatting of the website. And they moved up their statement about not enforcing it into a box at the very top of the website. And it now says that to ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified or vacated, the federal government will take no action to implement or enforce the executive order.

Tom Temin: It would seem like the worst outcome would be for a patchwork, it might work ok on behalf of contractors working for states, as you mentioned, but if you have a nationwide some sort of a services contract to maintain this or that or support, whatever, many contracts at the federal level, operate in multiple locations.

Matthew Haws: Absolutely. So there’s a whole nerdy legal path you can go down, you can read the the 11th circuit’s discussion of whether nationwide injunctions are appropriate. They say, of course, that it’s better for different circuits to be able to come to their own conclusions and the country benefits from that. But as a practical matter, businesses want certainty and clarity. And when you are a modern government contractor, you operate in maybe all 50 states, you have contracts with performance, even in multiple states. This patchwork quilt is very complicated, very challenging. We created a chart for our clients, it’s available on our website with each of the injunctions and where it applies. But that’s a really painful process to be going through each day on each contract.

        Read more: Contracting

Tom Temin: Right. And it’s not at all certain that contracting officers or even contracting officers representatives are thinking is part of their daily work to check the federal Safer Workforce Task Force site.

Matthew Haws: Absolutely. All of this is another burden on contracting officers as well. You know, again, I think most folks are reading the current guidance on that website is saying that the government won’t take any action until they come up with more direction. So I think that we’re seeing contracting officers kind of in the same place as contractors, feeling like the status quo is that no action will be taken until they receive new orders, and trying to do the best with the rest of their complicated jobs.

Tom Temin: And nothing coming from the Office of Federal Procurement Policy or from the Office of Federal Contractor Compliance programs?

Matthew Haws: Right. What we’ve got thus far is what’s on the website. And it’s not perfectly clear.

Tom Temin: All right. So what are what is Jenner and Block telling its clients to do, or contractors just go ahead and go to work if that’s what the agency wants you to do?

Matthew Haws: Yeah, so you absolutely need to be paying attention to what you’re receiving from your government partners. We’re telling clients to make sure that they’re alerting all of their contracting personnel reminding them of this issue, to be on the lookout for any contract modifications or other communications with this clause in it. We’re talking about these requirements. If you already have contracts that have this clause in it, make sure you’re paying attention to see if you receive any communication from your contracting officers about whether they are believing that this needs to be enforced or how it needs to be enforced. I think in this sort of grayness, where everyone is struggling to figure out the direction, really paying attention to what’s going on, your communications, and then working closely with with your counterparties where appropriate is important.

Tom Temin: You might say we have a continuing irresolution.

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Matthew Haws: As is often the case in government contracting these days. That’s right Tom.

Tom Temin: Attorney Matthew Haws is a partner at Jenner and Block.

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