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Georgia Federal Court Issues Nationwide Preliminary Injunction Against Enforcement of Federal Contractor Vaccine Mandate

December 8, 2021

A federal judge has granted the Associated Builders and Contractors’ (“ABC”) Motion for Preliminary Injunction, enjoining the Federal Government nationwide from enforcing President Biden’s vaccine mandate for federal contractors and subcontractors under Executive Order 14042 (“EO”).

The case was initiated on Oct. 29 on behalf of the state governments of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, as well as the Governors of several of those states and the University of Georgia system. The suit sought injunctive relief from enforcement of the EO, which mandates that contractors and subcontractors require that their employees and others meeting the definition of “covered contractor employees” be fully vaccinated against COVID-19 no later than Jan. 18, 2022. ABC thereafter intervened as an additional Plaintiff. Ultimately, ABC’s intervention proved to be important because it allowed the Court to extend the reach of its ruling beyond the original seven Plaintiff States.

In granting the preliminary injunction, echoing a recent ruling in a Kentucky Federal District Court, the Court made clear that its ruling had nothing to do with whether “vaccines are effective. They are.” Rather, the Court concluded that it was likely the President exceeded his authority under the Federal Property and Administrative Services Act (“FPASA”), a statute providing Presidential authority over federal procurement.  Concluding that the mechanism of implementing the EO operated as “a regulation of public health,” the Court found that impacts went “beyond the administration and management of procurement and contracting” and had “vast economic and political significance.” Because the EO did “not fall with the authority granted to the President” under FPASA,  the Court further found President could not use FPASA to “promulgate such a wide and sweeping health regulation,” especially one that required “extensive and costly administrative work by employers” and will force employees “to choose between getting medical treatment that they do not want or losing their job.”

Because ABC’s membership is national and their members received 57% of federal contracts over $25 million during Government fiscal years 2009 through 2020, the Court determined that limiting the preliminary injunction to only the seven Plaintiff States would not protect ABC members in other states. Furthermore, the Court determined that limiting the relief to only those parties before the Court would be unwieldy and would cause more confusion to non-parties. The Court thus ordered the Administration to immediately cease all steps to enforce the EO 14042 “vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”

It is unclear at this point if or when the Court will take up the merits of the lawsuit, or whether the Administration will immediately appeal to the 11th Circuit Court of Appeals. Given the recent Kentucky case, and the existence of cases in other circuits, it would not be surprising if the Administration sought to consolidate cases with a single Circuit on an expedited basis. In the meantime, contractors and subcontractors have to make a choice. They can continue to implement vaccine programs voluntarily in anticipation of a successful appeal, or they can stand down while waiting for further instruction from the courts and the Administration.

The Clark Hill Government Contracts Team will continue to provide updates as warranted.

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