The Latest Blow: Nationwide Hold on Vaccine Mandate for Federal Contractors

In a continuing trend of court orders halting the Biden administration’s broad plans to mandate COVID-19 vaccines, the latest blow comes in the form of a nationwide block to stop enforcement of vaccine mandates against certain federal contractors and subcontractors. Last week, a Kentucky federal district court issued a preliminary injunction halting the Biden administration from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee. On December 7, 2021, a federal court in Georgia followed suit by imposing a nationwide preliminary injunction to halt the vaccine mandate for federal contractors and subcontractors.

As a reminder, the federal contractor vaccine mandate was part of President Biden’s extensive COVID-19 action plan announced on September 9, 2021.  In particular, Executive Order 14042 (“EO 14042”) directed federal agencies and departments to include a new clause in their “contracts or contract-like instruments.”  This clause requires federal contractors and subcontractors to comply with a vaccination mandate and other safety protocols articulated in the Safer Federal Workforce Task Force’s Guidance (the “Guidance”).

Led by Georgia, the attorneys general of seven states (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia) challenged President Biden’s authority to mandate vaccinations of federal contractor and subcontractor workforces. On December 7, 2021, a Georgia federal district court agreed and granted a motion for preliminary injunction—which is used to preserve the “status quo” pending a trial or final judgment. This injunction stops the Biden administration from imposing or enforcing the federal contractor vaccine mandate nationwide.

The Injunction Details

Echoing the earlier injunction order out of Kentucky, this Georgia federal court began by noting “This case is not about whether vaccines are effective. They are.” Instead, the court centered its analysis on the likelihood that plaintiff states would succeed in arguing that President Biden exceeded his authority by promulgating EO 14042.

Finding for a preliminary injunction requires consideration of four separate factors:

1. Substantial likelihood of ultimate success on the merits;
2. Necessity of an injunction to prevent irreparable injury;
3. Whether the threatened injury outweighs the harm the injunction would inflict on the non-movant; and
4. Public interest.

The court noted that the most important of the factors is generally the likelihood of success on the merits. Largely siding with the states, the court centered its analysis on the Federal Property and Administrative Services Act (“FPASA”), which conveys authority to the President for certain actions to promote economy and efficiency with regards to government contracts. Plaintiff states argued that President Biden’s reliance on FPASA powers to issue EO 14042 exceeded proper authority and the court agreed.

Specifically, the Georgia federal court called attention to the “vast economic and political” impact of the federal contractor vaccine mandate, particularly its potential effects on a contractor’s or subcontractor’s ability to perform work under federal contracts. Typically, Congress must give clear authorization for a President to act when there is impact of “vast economic and political significance.” Here, the court explained that Congress did not clearly authorize the President to issue the kind of mandate under EO 14042 requiring COVID-19 vaccination for individuals working on or in connection with a federal contract. The court stated “the direct impact of EO 14042 goes beyond the administration and management of procurement and contracting . . . it operates as a regulation of public health.” Because of the significant potential impacts and lack of clear Congressional authorization, the President did not have proper authority to issue EO 14042 under the court’s analysis.

Further, the Georgia federal court found there to be no “sufficient nexus” between EO 14042 and the FPASA. Generally, a President’s directive must be reasonable related to the purpose of the FPASA. The Georgia federal court noted the President’s directive was “too far beyond the purposes of the FPASA and the authority it grants to the President” largely due to the resulting impact or “burdens” of EO 14042 and the order’s aim at public health, rather than procurements and contracting. Without the sufficient nexus or reasonable relatedness, the court determined that President Biden did not have proper authority to issue such a widespread federal contractor vaccine mandate.

The court declined to make determinations on arguments raised under a potential violation of the Administrative Procedure Act—an argument unsuccessful under the earlier determination of the Kentucky court. Following brief consideration of other factors presented, the court ordered a preliminary injunction on the grounds that the President may not use his congressionally delegated authority under the FPASA to manage federal procurements for imposing widespread vaccination requirements.

Unlike the Kentucky federal court’s earlier injunction, this Georgia federal court decided to impose a nationwide injunction to stop enforcement of the federal contractor vaccine. The court noted that an intervening plaintiff to litigation, Associated Builders and Contractors, Inc. (a trade association with members all over the country), needed consistent and nationwide relief from the vaccine mandate and stated “limiting the relief to only those before the Court would prove unwieldy and would only cause more confusion.”

The Future: What Now?

This order means that the federal contractor mandate is unenforceable in all states across the country while the injunction stands (or until either the court orders otherwise or a trial is conducted on the merits). If this injunction is appealed, it would be heard by the U.S. Court of Appeals for the Eleventh Circuit.

For now, it may be reasonable for impacted federal contractors and subcontractors across the nation to delay implementation of vaccination mandate and other safety protocols articulated in the Guidance.  However, it may not be so easy.  Because EO 14042 and the Task Force’s Guidance require covered contractors and subcontractors to “flow down” the requisite contract clause to lower-tier contractors, many subcontractors may have already signed contracts with the requisite clause—not with a federal agency, but with a higher-tier contractor—thus potentially binding them to comply with the vaccine obligations as a matter of contract.  With this in mind, subcontractors should review the entire document which includes the contract clause to see if other language provides some relief.

We will continue to monitor pending litigation for further developments.