On Tuesday, December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a nationwide preliminary injunction enjoining enforcement of Executive Order 14042, the federal contractor vaccine mandate.1 As a result, federal contractors around the country are left in a difficult position, as many have already rolled out mandatory vaccine policies pursuant to the federal contractor vaccine mandate.
Court Determines Biden Likely Exceeded His Federal Procurement Authority
Like the November 30, 2021, ruling from the Eastern District of Kentucky, the Southern District of Georgia found that the directives contained within the Executive Order likely were not authorized by the Federal Property and Administrative Services Act (Procurement Act).
The court reasoned that, if the Procurement Act would be construed to give the President the right to impose the vaccine mandate, the President could also impose "virtually any kind of requirement on businesses that wish to contract with the Government . . . so long as he determines it could lead to a healthier and thus more efficient workforce or it could reduce absenteeism." Accordingly, the court found that the plaintiff states were likely to succeed on the merits of their challenge.
Injunction Is Nationwide
As an initial matter, the court granted a motion by the Associated Builders and Contractors, Inc. (ABC), a trade organization, and one of its chapters in Georgia, to intervene in the lawsuit filed by the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia.
When the court turned to the question of the scope of the injunction, the presence of ABC became critical. The court's order notes the breadth of ABC's membership, both in terms of geographic scope (nationwide) and amount of federal contract awards (57 percent of federal contracts exceeding $25 million during fiscal years 2009-2020). The court explained that "limiting relief to only those before the Court would prove unwieldy and would only cause more confusion." Therefore, the court determined it was "necessary, in order to truly afford injunctive relief to the parties before it, to issue an injunction with nationwide applicability.
The Court Did Not Rule on Administrative Procedure or Constitutional Questions
The plaintiffs also asked the court to find that the Task Force guidance and FAR Deviation Clause were final agency actions that did not comply with the Administrative Procedure Act's notice-and-comment requirements. The court declined to "wade into this issue given its determination that Plaintiffs have a likelihood of success on the merits on other grounds."
Likewise, the court declined to rule on the plaintiff's constitutional arguments under the non-delegation doctrine. The court did, however, note that other courts have expressed agreement with or concern about the non-delegation arguments.
Next Steps for Employers
Many employers have already rolled out mandatory vaccine policies, some of which were crafted to comply with the original vaccine deadline of December 8, 2021. For single-state employers operating in states without any vaccine mandate prohibitions, employers are not legally restricted from continuing with or adopting mandatory vaccination policies. For single-state employers operating in states with vaccine mandate prohibitions, those vaccine policies may no longer have federal preemption protection based on Executive Order 14042 because of the new injunction.
The landscape is significantly more challenging for multi-state employers who operate in states with and without vaccine mandate prohibitions. All federal contractors would be well-advised to consult with experienced attorneys about how to proceed with any mandatory vaccine policies, regardless of whether those policies have or have not been implemented.
1 State of Georgia, et al. v. Joseph R. Biden, et al., Case No. 1:21-cv-163 (S.D. Ga. Dec. 7, 2021) (Judge R. Stan Baker).
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