Federal Court Grants Nationwide Injunction Against Government Contractor Vaccine Mandate

U.S. District Court Judge R. Stan Baker of the Southern District of Georgia on Dec. 7, 2021, issued a preliminary injunction, halting the government's enforcement of the federal contractor vaccine mandate on all federal contractors and subcontractors throughout the nation.

 As discussed in a previous Holland & Knight alert, the federal contractor vaccine mandate stems from Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which mandated the creation of a Federal Acquisition Regulation (FAR) clause requiring federal contractors and subcontractors to follow guidance published by the Safer Federal Workforce Task Force. The Task Force's guidance, as amended, requires covered federal contractor and subcontractor employees to be "fully vaccinated" no later than Jan. 18, 2022 (meaning employees must receive either the single-dose Johnson & Johnson vaccine or the second dose of the Pfizer or Moderna vaccine by Jan. 4, 2022). This requirement is now "on hold" for all federal contractors and subcontractors.

Even so, the government will almost surely appeal rapidly, so stay tuned.

The District Court Opinion

The court issued the opinion in response to a lawsuit filed in late October by the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia; various state agencies, including several Georgia universities; and the trade organization Associated Builders and Contractors Inc., plus its Georgia chapter. The plaintiffs argued, among other things, that the president's executive order exceeded his authority under the Federal Property and Administrative Services Act. The court concluded that the plaintiffs were likely to succeed on that argument. Here are the key aspects of the judge's decision:

• The president likely exceeded his authority under the Federal Property and Administrative Services Act (FPASA), 40 U.S.C. §§ 101–126, a statute designed to promote economy and efficiency in the federal procurement process. Invoking the concerns behind the "major questions" doctrine – the idea that Congress does not leave massive economic and social policies to executive regulation alone – the court acknowledged that FPASA bestowed "some authority" on the government, but held that EO 14042 "goes far beyond" FPASA's purpose of addressing administrative and management issues in order to promote efficiency and economy in public procurement. Like the U.S. District Court for the Eastern District of Kentucky, the court here noted that FPASA had never before been used to enact public health measures or created such a burden on contractors. The court also noted that the government's reasoning would permit the president to "impose virtually any kind of requirement" on contractors.
• Complying with the mandate would impose an "extreme economic burden" on government contractors. The court credited witness testimony describing "the incredibly time-consuming processes" government contractors have undertaken to comply with the mandate and to track which employees have been fully vaccinated. The court also expressed concerned about the economic disruption contractors would face as they weighed whether to bid on government contracts and determined what to do with employees who have not provided proof of vaccination.
• The court declined to address the plaintiffs' contentions that the mandate was unconstitutional and violated the nondelegation doctrine and Administrative Procedure Act, noting that resolving these issues were unnecessary given the court's holding that the president likely exceeded his authority under FPASA.

The order enjoining the mandate is preliminary; the court concluded only that plaintiffs were likely to succeed on the merits of their case.

The order is also subject to immediate appeal. It is expected that the government will quickly appeal the judge's order to the U.S. Court of Appeals for the Eleventh Circuit, as the government has already done in response to the injunction granted by the U.S. District Court for the Eastern District of Kentucky.

Conclusion and Takeaways

With this injunction, government contractors are not required to comply with the government contractor vaccine mandate – at least for now. This nationwide injunction follows the injunction issued Nov. 30, 2021, that applied only in Kentucky, Ohio and Tennessee. Contractors should also bear in mind:

• Several other lawsuits challenging the government contractor vaccine mandate continue to make their way through federal district courts across the country. With this order, contractors are not required, for now, to comply with the mandate. But contractors should still be prepared for the possibility of a successful appeal and a jurisdictional patchwork of enjoined and nonenjoined states.
• The Task Force has already issued updated guidance, pushing the vaccine deadline back from December until January. And the Office of Management and Budget (OMB) has issued a revised determination, revoking an earlier, less-robust determination and providing additional support for the mandate. While the U.S. Department of Justice litigates the mandate challenges in court, the Task Force and OMB may take more action in hopes of strengthening the mandate's viability.

Holland & Knight will continue to monitor and provide updates as they become available.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.