The Volokh Conspiracy

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Sixth Circuit Narrows Injunction to the Parties


Today a panel of the Sixth Circuit (Judge Larsen writing, joined by Judges Siler and McKeague) affirmed a preliminary injunction against the enforcement of the COVID vaccination requirement for federal contractors. But the court narrowed the preliminary injunction, which had covered parties and non-parties alike in the plaintiff states. Now the injunction protects only the parties to the case–as it should. The court's opinion is here.

Co-blogger Jonathan Adler has already written about the opinion, especially about the merits. Here I will reproduce the court's discussion of the scope of the injunction:

The parties agree that federal courts should not issue relief that extends further than necessary to remedy the plaintiff's injury. Although a geographically limited injunction like the one issued here does not create all of the practical problems associated with "nationwide" or "universal" injunctions, see Arizona v. Biden, 31 F.4th 469, 484 (6th Cir. 2022) (Sutton, C.J., concurring), affording relief beyond the parties nonetheless raises substantial questions about federal courts' constitutional and equitable powers, see id. at 483; Dep't of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (mem.) (Gorsuch, J., concurring). We therefore take seriously the federal government's complaint about the overbreadth of the district court's injunction.

The plaintiff States offer two theories why the district court properly extended the injunction to non-parties. First, the States claim that if the injunction does not extend to nonparties, the federal government will "simply choose to do business with those against whom it could enforce the mandate." Appellee Br. at 41. Yet the States provide nothing but pure speculation that the government would switch providers.

The States' second theory fares no better. The States rightly point out that they have a sovereign interest in enforcing their duly enacted laws, see Kentucky II, 23 F.4th at 599, and that the mandate purports to preempt those laws, Task Force Guidance, supra, at 13. The States thus contend that the only way to prevent preemption is to prohibit enforcement of the mandate against any contractor in the state. This theory falls flat with respect to the States' policies regarding the vaccination status of their own employees. See Tenn. Code Ann. § 14-2-101; Amended Complaint, R. 22, PageID 410, 412. An injunction barring the federal government from enforcing the mandate against the States would also run to the States' subdivisions and thus would not encroach on the States' own vaccination policies for state employees. See Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 362 (2009).

Tennessee also bars private businesses from inquiring about another person's vaccination status, Tenn. Code Ann. § 14-2-102(a). We recognize the potential conflict: one cannot ensure an employee is vaccinated without asking. But this same Tennessee statute exempts federal contractors, subcontractors and "postsecondary grant[]" recipients if compliance with the Tennessee law "would result in a loss of federal funding." Tenn. Code Ann. § 14-6-102(a). Tennessee does not explain why a state-wide injunction is necessary to prevent preemption of its "don't ask" law, when the Tennessee statute itself provides exemptions from that rule. Without more, Tennessee has not shown that an injunction extending to nonparties is a remedy "no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki, 442 U.S. 682, 702 (1979); Arizona, 31 F.4th at 484 (Sutton, C.J., concurring).

Because an injunction limited to the parties can adequately protect the plaintiffs' interests while the case is pending disposition on the merits, the district court abused its discretion in extending the preliminary injunction's protection to non-party contractors in the plaintiff States.

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We AFFIRM the district court's issuance of the injunction but MODIFY its scope to prohibit the federal government from enforcing the contractor mandate against the parties only.