US Federal Court Preliminarily Enjoins Vaccine Mandate for Federal Contractors Nationwide and the Government Responds

Following a Kentucky federal court’s preliminary injunction that prevented enforcement of a vaccine mandate for government contractors in Kentucky, Ohio and Tennessee,¹ Judge R. Stan Baker for the Southern District of Georgia has done the same but on a nationwide basis. In his December 7, 2021, opinion, Judge Baker evaluated a primary issue: “whether Congress, through the Procurement Act, has ‘clearly’ authorized the President to issue the directives contained in EO 14042, or whether, instead, EO 14042 ‘bring[s] about an enormous and transformative expansion in . . . regulatory authority without clear congressional authorization.’” (Georgia v. Biden, Civil Action No. 1:21-cv-163, 2021 U.S. Dist. LEXIS 234032, at *29 (S.D. Ga. Dec. 7, 2021) (quoting Utility Air Regul. Grp. v. E.P.A., 573 U.S. 302, 324 (2014)).)

After summarizing the events that led to the government’s vaccine mandate under EO 14042 and detailing a procedural history that included the parties’ presentation of evidence, the court held that the vaccine mandate exceeded presidential authority. (Id. at *25-33.) The court determined that there was an insufficient nexus between the president’s authority provided under the Procurement Act and the authority exercised under EO 14042. (Id.) As held by the court, “EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.” (Id. at *29-30.)

In addition to this central holding, the court also addressed standing challenges. Defendants argued that the plaintiffs were not parties to federal contracts implicated by FAR Deviation Clause 52.223-99, the clause at issue from where the vaccine mandate derives. (Id. at *19-20.) The court disagreed with defendants, finding Regents of the University System of Georgia and Associated Builders and Contractors, Inc. to each have standing. (Id. at *20-21.) The court’s determination was based on evidence that pending procurement bids and evaluations involving both plaintiffs would be subject to the government’s mandate. (Id. at *20-23.) Furthermore, the court confirmed that the entirety of the defendants’ standing argument failed, given that “it is well-established that, where there are multiple parties petitioning for injunctive relief, ‘[o]nly one petitioner needs to have standing to authorize review.’” (Id. at *23 (quoting Massachusetts v. E. P.A., 549 U.S. 497, 498 (2007)).)

Significantly, the court’s decision and preliminary injunction prevents the government “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.” (Id. at *39 (emphasis added).) The court granted a motion to intervene pursuant to Federal Rule of Civil Procedure 24(a)(2), allowing “a trade association with members ‘all over the country,’ . . . to intervene as a Plaintiff.” (Id. at *38.) Thus, the court found “it necessary . . . to issue an injunction with nationwide applicability.” (Id. at *39.)

Government’s Response

There has been rapid reaction following the decisions made by the Southern District of Georgia and Eastern District of Kentucky to enjoin the government’s vaccine mandate. The government filed an emergency motion to stay in each case, arguing that the government would “suffer irreparable harm in the absence of a stay, including harm to its ability to contract under terms of its choosing and other governmental interests.”² The motion has already been denied by the Kentucky court.³ Furthermore, the government has filed notices of appeal in each case, seeking the respective Circuit Courts’ reconsideration of the nationwide block to its federal vaccine mandate for contractors.⁴

¹ Kentucky v. Biden, Civil No. 3:21-cv-00055-GFVT, 2021 U.S. Dist. LEXIS 228316, at *44 (E.D. Ky. Nov. 30, 2021); US Federal Court Preliminarily Enjoins Vaccine Mandate for Federal Contractors in KY, OH and TN, Mayer Brown. https://www.mayerbrown.com/en/perspectives-events/publications/2021/12/us-federal-court-preliminarily-enjoins-vaccine-mandate-for-federal-contractors-in-ky-oh-and-tn.

² Defendants’ Emergency Motion For Stay Pending Appeal And For Immediate Administrative Stay, Civil No. 1:21-cv-00163-RSB-BKE, Dkt. No. 97 at 2 (S.D. Ga. Dec. 9, 2021); Defendants’ Emergency Motion For Stay Pending Appeal And For Immediate Administrative Stay, Civil No. 3:21-cv-00055-GFVT, Dkt. No. 53 at 1 (E.D. Ky. Dec. 3, 2021).

³ Defendants’ Emergency Motion For Stay Pending Appeal And For Immediate Administrative Stay, Civil No. 3:21-cv-00055-GFVT, Dkt. No. 59 (E.D. Ky. Dec. 10, 2021).

⁴ Defendants’ Notice of Appeal, Civil No. 1:21-cv-00163-RSB-BKE, Dkt. No. 96 (S.D. Ga. Dec. 9, 2021); Notice of Appeal, Civil No. 3:21-cv-00055-GFVT, Dkt. No. 52 (E.D. Ky. Dec. 3, 2021).