Member Article

On Tuesday, December 7, 2021, in The State of Georgia, et. al. v. Biden, et. al., Case No. 1:21-cv-163, a federal district court judge in the United States District Court for the Southern District of Georgia issued a preliminary injunction enjoining enforcement of the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States. This injunction is nationwide and states that it applies to all federal contractors. 

Summary

This is the second federal district court that has issued an injunction against the federal contractor vaccine mandate. Whereas the first injunction was limited to federal contractors and subcontractors in Kentucky, Ohio, and Tennessee, this new injunction is nationwide in scope. 

The federal government is likely to appeal the District Court’s decision to the 11^th Circuit Court of Appeals. Accordingly, there has not been a final decision as to the legality of the federal contractor vaccine mandate and federal contractors may still need to comply with the federal contractor vaccinate mandate by the current deadline for compliance of January 18, 2022.  However, there is now currently an injunction in place against implementation of the federal contractor vaccine mandate throughout the United States.

So what does that mean? First, there is a significant possibility that the January 18, 2022 deadline for compliance will be delayed as a result of this injunction. There also now appears to be a material possibility that the federal contractor vaccine mandate will ultimately be affirmed as outside the scope of the President’s authority. 

Second, it will make sense, to the extent that it is possible, for federal contractors to take preparations to comply with the federal contractor vaccine mandate but not implement any specific provisions. These steps could include:

• Continue to develop the policies and forms that would be used if the federal contractor vaccine is affirmed by the appellate courts;
• Delay requiring employee compliance with the vaccine mandate as we wait to see how the litigation, and the likely appeal, is resolved;
• Continue to inform employees about the status of the federal contractor vaccine mandate and the uncertainty as to its implementation;
• For those contracts that have had the federal contractor vaccine mandate clause added, inform your contracting officer of the injunction against enforcement of the federal contractor vaccine mandate; and
• Actively monitor the Safer Federal Workforce Task Force for updated guidance regarding deadlines for compliance in light of the injunction.

This is not the final word on the legality of the federal contractor vaccine mandate. The government is likely to appeal the District Court’s decision, and the 11^th Circuit or the United States Supreme Court could affirm the legality of the federal contractor vaccine mandate and remove the injunction.  Accordingly, federal contractors should continue to monitor this issue and any new legal developments, including the potential that they will still have to comply with the federal contractor vaccine mandate. 

Summary of the District Court’s Decision

The lawsuit was filed by the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia, and various state agencies. The District Court also permitted the Associated Builders and Contractors, Inc. (“ABC”), a trade organization, to intervene.  The District Court began its order stating that:

[T]he Court acknowledges the tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe. However, even in times of crisis this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities….  In this case, Plaintiffs will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042.

The Court ultimately found the plaintiffs were likely to succeed on their claim that the federal contractor vaccine mandate exceeded the scope of the President’s authority under the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq. (the “Procurement Act”).  Citing to a 1979 D.C. Circuit Court of Appeals decision, the District Court acknowledged that the Procurement Act “grants the President particularly direct and broad-ranging authority over those larger administrative and management issues that involve the Government as a whole. And that direct presidential authority should be used in order to achieve a flexible management system capable of making sophisticated judgments in pursuit of economy and efficiency.” (quoting Am. Fed’n of Labor and Congress of Indus. Orgs. v. Kahn, 618 F.2d 784, 789 (D.C. Cir. 1979).

However, the District Court concluded that the authority granted to the President under the Procurement Act did not extend to imposing a federal contractor vaccine mandate:

While the Procurement Act explicitly and unquestionably bestows some authority upon the President, the Court is unconvinced, at this stage of the litigation, that it authorized him to direct the type of actions by agencies that are contained in EO 14042. Pursuant to clear United States Supreme Court precedent, Congress is expected to “speak clearly” when authorizing the exercise of powers of “vast economic and political significance.” Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) (quotations omitted); see also Utility Air Regul. Grp. v. E.P.A., 573 U.S. 302, 324 (2014). The Court has already described in detail the extreme economic burden the Plaintiffs have suffered and will continue to suffer in endeavoring to comply with EO 14042 (not to mention the impediment it will likely pose to some Plaintiffs’ (in particular, ABC’s members’) ability to continue to perform federal contract work). Additionally, the direct impact of EO 14042 goes beyond the administration and management of procurement and contracting; in its practical application (requiring a significant number of individuals across the country working in a broad range of positions and in numerous different industries to be vaccinated or face a serious risk of losing their job), it operates as a regulation of public health. It will also have a major impact on the economy at large, as it limits contractors’ and members of the workforce’s ability to perform work on federal contracts. Accordingly, it appears to have vast economic and political significance.

The District Court concluded that the “Plaintiffs have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.”

Given its conclusion that the President exceeded his authority under the Procurement Act, the District Court declined to decide the Plaintiffs’ challenges to the vaccine mandate based on the Administrative Procedure Act and non-delegation doctrine. 

After finding that the Plaintiffs are likely to succeed on the merits of their claim, the District Court found that Plaintiffs had also shown a likelihood of irreparable injury, based on the efforts that federal contractors must take to comply with the federal contractor vaccine mandate:

As referenced previously in this Order, the Court heard from three witnesses who described the incredibly time-consuming processes they have undertaken (typically requiring major input and assistance from numerous other departments across their institution) to identify the employees covered by the mandate and to implement software and technology to ensure that those employees have been fully vaccinated (or have requested and been granted an accommodation or exemption) by the deadline in January. Not only must Plaintiffs ensure that their own employees satisfy the mandate, but they also must require that any subcontractors’ employees working on or in connection with a covered contract are in compliance….  The Court finds that the time and effort spent on these measures in the past—and going forward—constitute compliance costs resulting from EO 14042, which appear to be irreparable.

The Court also found that balancing the harms between issuing an injunction and permitting the federal contractor vaccine mandate to remain in place favored issuing an injunction.  The District Court reasoned that permitting the federal contractor vaccine mandate to remain in place while the litigation proceeded would impose significant burdens on those contractors, whereas issuance of an injunction would merely maintain the status quo:

Enjoining EO 14042 would, essentially, do nothing more than maintain the status quo; entities will still be free to encourage their employees to get vaccinated, and the employees will still be free to choose to be vaccinated. In contrast, declining to issue a preliminary injunction would force Plaintiffs to comply with the mandate, requiring them to make decisions which would significantly alter their ability to perform federal contract work which is critical to their operations…. Additionally, requiring compliance with EO 14042 would likely be life altering for many of Plaintiffs’ employees as Plaintiffs would be required to decide whether an employee who refuses to be vaccinated can, in practicality, be reassigned to another office or another task or whether the employee instead must be terminated….  Accordingly, the Court finds that the balancing of the harms weighs heavily in favor of enjoining the enforcement of EO 14042.

Finally, the Court found that issuing a nationwide injunction was necessary because of the geographic scope of ABC’s membership:

While the original Plaintiffs to this case are (or are based in) a limited number of states, the Court has, in this Order, permitted ABC, a trade association with members “all over the country,” (doc. 50-1, p. 3), to intervene as a Plaintiff. Not only is the geographic scope of ABC’s membership broad, their involvement in federal contracts is as well. As noted above, they were awarded 57% of federal contracts exceeding $25 million during fiscal years 2009–2020. Accordingly, if the Court were to enjoin the enforcement of the mandate only in the Southern District of Georgia or only in Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, then ABC’s members would not have injunctive relief as to covered contracts in other states.

Furthermore, given the breadth of ABC’s membership, the number of contracts Plaintiffs will be involved with, and the fact that EO 14042 applies to subcontractors and others, limiting the relief to only those before the Court would prove unwieldy and would only cause more confusion. Thus, on the unique facts before it, the Court finds it necessary, in order to truly afford injunctive relief to the parties before it, to issue an injunction with nationwide applicability

The Court’s order therefore enjoined the federal government “during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”

Conclusion

As noted above, this is now the second federal district court that has issued an injunction against the federal contractor vaccine mandate.  Whereas the first injunction was limited to federal contractors and subcontractors in Kentucky, Ohio, and Tennessee, this new injunction is nationwide in scope. 

The federal government is likely to appeal the District Court’s decision to the 11^th Circuit Court of Appeals.  Accordingly, there has not been a final decision as to the legality of the federal contractor vaccine mandate. However, there is now currently an injunction in place against implementation of the federal contractor vaccine mandate throughout the United States. 

This is not the final word on the legality of the federal contractor vaccine mandate. The government is likely to appeal the District Court’s decision, and the 11^th Circuit or the United States Supreme Court could affirm the legality of the federal contractor vaccine mandate and remove the injunction. Accordingly, federal contractors should continue to monitor this issue and any new legal developments, including the potential that they will still have to comply with the federal contractor vaccine mandate. 

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.