On December 16, in the challenge filed by Louisiana, Mississippi, and Indiana to the federal contractor vaccine mandate, the Western District of Louisiana (WD of LA) granted the plaintiff’s motion for a preliminary injunction (PI) with respect to “contracts, grants, or any other like agreement by any other name between the Plaintiff States and the national government.” However, the ruling denied the motion for a PI to the extent it sought to enjoin the application of EO 14042 against contracts between private contractors and the government.
WD of LA Splits from the Other Districts on Key Contractor Vaccine Mandate Issues
Interestingly, unlike the Eastern District of Kentucky (ED of KY) and Southern District of Georgia (SD of GA), the WD of LA concluded that “a reasonably sufficient nexus can exist between EO 14042 and the government’s policy under [the Federal Property and Administrative Services Act] to procure and manage properties and services in an economical and efficient manner.” Instead, the WD of LA concluded that the EO is unlawful because it conflicts with the Tenth Amendment.
The WD of LA also split with the ED of KY on another point, holding that the Federal Acquisition Regulation (FAR) memo constituted a final agency action “ripe for review and subject to the rule making procedural requirements of [41 U.S.C.] §1707.” The court did not agree with the Department of Justice’s (DOJ’s) argument that the urgent and compelling circumstances exception to that statute’s notice and comment requirement applied, stating, “we doubt the pandemic makes compliance with a relatively short comment period impracticable two years into the pandemic ….”
Also, the court interpreted the September 30, 2021, FAR Deviation Memo’s encouragement that agencies apply the contract provision broadly, coupled with the fact that there is no express exclusion for grants in the FAR Memo, as encouraging the application of the clause to grants. The opinion states that “NIH [National Institutes of Health] would appear to agree,” but we are not aware of any other court that has previously concluded that the FAR Council intended for the deviation contract clause to apply to grants.
It seems to be based on this conclusion that the court found that the FAR Memo is an unacceptable and improper deviation from the express limitation with regard to grants in EO 14042.
Status of the Challenges to the Federal Contractor Vaccine Mandate
The other injunctions of the federal contractor vaccine mandate remain in place pending appeal – Kentucky Ohio, and Tennessee by the ED of KY and nationwide by the SD of GA.
Finally, decisions are still pending on preliminary injunction motions in the three other state challenges to the federal contractor vaccine mandate. The status of those cases is as follows:
- Southern District of Texas – The case was stayed without explanation on December 10.
- Middle District of Florida – On December 9, the court issued an order permitting supplemental briefing, which is ongoing. On December 14, DOJ filed a motion to stay or, in the alternative, extend the responsive deadline. The court has not yet ruled on that motion.
- Eastern District of Missouri – Briefing continues on the plaintiffs’ motion for a PI.