On December 6, we noted on this blog post that because the injunction issued by the District Court for the Eastern District of Kentucky on November 30 prohibiting the government from enforcing the government contractor vaccine mandate against contractors and subcontractors in Kentucky, Ohio, and Tennessee had national impact, a nationwide injunction seemed to make sense.
Today, the District Court for the Southern District of Georgia, which held a hearing on a motion for a preliminary injunction on December 3, did just that.
The President Likely Exceeded Statutory Authority
The order granted the motion for a preliminary injunction filed by the plaintiffs – Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia – finding that they “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 (FPASA) when issuing Executive Order [EO] 14042.”
The order also granted in part the Associated Builders and Contractors, Inc.’s (ABC) motion to intervene (the court held that ABC’s Georgia chapter, which had also sought to intervene, had not presented evidence that “any specific member of that chapter would have standing”) and granted ABC’s motion for a preliminary injunction.
After resolving the question of standing in the plaintiff and intervenor’s favor, the court stated that, although FPASA grants some authority to the president to set government-wide procurement policy on matters common to all agencies, it was “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.”
Because the government contractor vaccine mandate “operates as a regulation of public health” and “will … 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,” the court found that it was a matter of “vast economic and political significance” that required explicit authorization from Congress. Because the court could not find any indication that “Congress clearly gave the President authority to require all individuals who work on or in connection with a federal contract (valued over $250,000) to be fully vaccinated against COVID-19,” it found the mandate to be unauthorized. Emphasis in original.
Even if the vaccine mandate was not a matter of vast economic and political significance such that clear authorization from Congress was required, the court held that the plaintiffs were likely to succeed on the argument that EO 14042 did not have a sufficient nexus to FPASA to authorize the president’s actions.
In reference to an argument raised by the plaintiffs during the December 3 hearing, the court also stated that were it to accept the Department of Justice’s (DOJ’s) argument that FPASA authorized the issuance of a vaccine mandate, FPASA “would be construed to give the President the right to impose virtually any kind of requirement on businesses that wish to contract with the Government … so long as it could lead to a healthier and thus more efficient workforce or it could reduce absenteeism.”
Having held that the plaintiffs were likely to succeed on the merits of the FPASA argument, the court declined to address the procedural argument that the government had failed to comply with the Administrative Procedure Act. It also declined to address the argument that FPASA and EO 14042 were unconstitutional under the non-delegation doctrine and because they exceeded Congress’s authority and intruded on state sovereignty protected by the Tenth Amendment. However, it referenced the Fifth Circuit’s decision enjoining the OSHA vaccine mandate and the Eastern District of Kentucky decision enjoining the government contractor vaccine mandate in Kentucky, Ohio, and Tennessee, both of which addressed those arguments.
The Court Found Risk of Irreparable Injury and that the Balance of the Harms Favored Issuing the Injunction
Regarding irreparable injury, the court was not convinced by DOJ’s argument that losing government contracts would not cause irreparable harm because contractors could challenge the contract provision and recover contract losses through administrative processes. Instead, the court cited the testimony from three witnesses, each of whom described high irrecoverable compliance costs, and to the declarations by representatives of ABC that identified similar compliance costs.
The court also held that the balance of the harms favored issuing an injunction because it would do no more than maintaining the status quo insofar as entities could still encourage their employees to get vaccinated and employees could freely choose to be vaccinated. If no injunction was issued, the plaintiffs would be forced 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.” The court also stated that it appeared that not granting an injunction “could imperil the financial viability of many of ABC’s members.”
The Nationwide Injunction
Primarily because the intervenor, ABC, is a trade association with members nationwide, the court determined that the injunction it issued had to be nationwide. For that reason, the court ordered as follows:
“[T]he Court ORDERS that Defendants are ENJOINED, 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.”
While the injunction prohibits enforcement of the government contractor vaccine mandate, the order does not answer a question raised by DOJ during the December 3 hearing and in the emergency motion to stay the injunction filed by DOJ in the case before the Eastern District of Kentucky as to whether the government can continue including the government contractor vaccine mandate contract provision in government contracts.
But arguably, the inclusion of the contract provision in agreements is itself “enforcement” of EO 14042, meaning that until the courts provide clarification, contractors could reasonably take the position that inclusion of any of the implementing contract clauses, including FAR 52.223-99 and DFARS 252.223-7999, violates the injunction.
What Do Government Contractors Do Now?
For the time being, the government contractor vaccine mandate is unenforceable. Therefore, contractors and subcontractors have the discretion to stop efforts to meet the January 18, 2022, deadline for employees to be fully vaccinated, among other compliance measures. Contractors also now have a basis for rejecting the inclusion of the vaccine mandate contract provision in contracts, contract-like agreements, and subcontracts.
That said, if contractors want to proceed with mandatory vaccination policies, they are welcome to do so to the extent those actions comply with state law. But now that the government contractor vaccine mandate has been enjoined, there is no longer an argument that the federal requirement supersedes any conflicting state law requirements according to the Constitution’s Supremacy Clause. For that reason, it is important for contractors that are moving forward with vaccine mandates to carefully review any applicable state law restrictions in states such as Texas, Florida, and Tennessee.
Finally, remember that this is not the last word on the government contractor vaccine mandate. DOJ will undoubtedly appeal the Georgia decision, just as it has done in the Kentucky case. Additional decisions are expected in the next few days from district courts in Louisiana, Florida, and Texas that are also considering challenges to the government contractor vaccine mandate. Even if all of the courts find that EO 14042 was unlawful, DOJ will likely continue to litigate.
Indeed, on December 6, the Eleventh Circuit Court of Appeals issued a decision rejecting Florida’s request to preliminary enjoin enforcement of the Centers for Medicare & Medicaid Services vaccine mandate, which has already been enjoined in some states by a district court in Missouri and nationwide by a district court in Louisiana. After a string of legal defeats over the past few weeks, the Eleventh Circuit decision will no doubt encourage DOJ to press the argument that the vaccine mandates are lawful. Because DOJ may ultimately prevail with regard to the government contractor vaccine mandate, while contractors can for now cease efforts toward full compliance, it would be prudent to keep the compliance infrastructure in place for the time being.