A Sixth Circuit jury today (Judge Larsen writes, joined by Justices Siler and McKeague) affirmed a preliminary injunction against enforcement of the COVID vaccination mandate 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 only protects the litigants, as it should. The opinion of the court is here.
Co-blogger Jonathan Adler has written about opinion before, especially the merits. Here I reproduce the court’s discussion of the scope of the injunction:
The parties agree that federal courts should not issue orders that extend beyond what is necessary to cure the plaintiff’s harm. While a geographically limited injunction such as the one issued here does not create all of the practical problems associated with “national” or “universal” injunctions, see Arizona v. Biden, 31 F.4th 469, 484 (6th Cir. 2022) (Sutton, CJ, concording), which offers relief beyond the parties nevertheless raises substantive questions about the constitutional and equitable powers of federal courts, see id. at 483; Homeland Department Section v. New York, 140 S.Ct. 599, 600 (2020) (mem.) (Gorsuch, J., concurring). We therefore take seriously the federal government’s complaint about the excessive breadth of the district court injunction.
The plaintiff states offer two theories as to why the district court correctly extended the injunction to the nonpartisan parties. First, the states say that if the injunction does not extend to non-parties, the federal government will “simply choose to do business with those against whom it might enforce the mandate.” Appellant fr. to 41. Yet the states provide nothing but pure speculation that the government would switch suppliers.
The second theory of the States fares no better. 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. States therefore they argue that the only way to prevent pre-emption is to prohibit enforcement against any contractor in the state. This theory falls flat against state policies regarding the vaccination status of their employees. See Lt. Code Ann. § 14-2-101; Amended Complaint, R. 22, PageID 410, 412. An injunction preventing the federal government from enforcing the mandate against the states would also go to the subdivisions of the states and thus would not encroach on the states’ 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: An employee cannot be guaranteed to be vaccinated without asking. But this same Tennessee statute exempts federal contractors, subcontractors, and the “postsecondary grant.”[]recipients if compliance with Tennessee law “would result in a loss of federal funding.” Tenn. Code Ann. § 14-6-102(a). Tennessee does not explain why a state-level injunction is needed for prevent the preemption of its “don’t ask” law, when Tennessee’s statute itself provides exemptions from that rule. Without further ado, Tennessee has failed to demonstrate that an injunction that extends to non-parties is a remedy “no more burdensome to defendant as necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 US 682, 702 (1979); Arizona, 31 F.4th at 484 (Sutton, CJ, concurring).
Because an injunction limited to the parties may adequately protect the interests of the plaintiffs while the case is pending on the merits, the District Court abused its discretion by extending the preliminary injunction protection to non-partisan contractors in the plaintiff states.
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WE UPHOLD the District Court’s issuing of the injunction but WE CHANGE its scope to prohibit the federal government from enforcing the contractor’s warrant only against the parties.