On December 7, 2021, U.S. District Judge R. Stan Baker issued a preliminary injunction against the Biden Administration, preventing any further acts to enforce Executive Order 14042 (“EO 14042” or “Mandate”) and the associated Safer Federal Workforce Task Force Guidance, the Executive Order requiring most workers on federal contracts to be vaccinated, pending further action from the Court. The case, Georgia v. Biden, was brought by the states of Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia (the “States”), along with several state agencies and is pending in the U.S. District Court for the Southern District of Georgia.
Associated Builders and Contractors, Inc. (“ABC”), one of the construction industry’s largest trade organizations, is now officially joining the States to oppose the Mandate. ABC was added as a plaintiff as part of the Court’s order issuing the injunction.
The Court was clear that the decision was not about whether vaccines were effective. Rather, the focus was on whether the Biden Administration has acted within the limits of its constitutional authority. In addressing the States’ request for an injunction, the Court found that the States “will likely succeed in their claim that the President exceeded the authorization given to him by Congress” when he issued the Mandate. The Court hinged its decision on the States’ argument that the Biden Administration had exceeded its authority under the Federal Property and Administrative Services Act (the “Procurement Act” or “Act”).
The Procurement Act, originally passed by Congress in 1949, established the General Services Administration and empowers the Executive Branch with much of its procurement power. However, the States insist that EO 14042 goes far beyond the scope of existing procurement law. At this point, the Court agrees and specifically found that EO 14042 “works as a regulation of public health, which is not clearly authorized under the Procurement Act.”
This nationwide injunction comes exactly one week after a Kentucky federal judge issued an injunction against enforcement of the Mandate in the states of Kentucky, Ohio, and Tennessee. The Georgia court could have also limited the reach of this injunction to only the states involved in the lawsuit. However, the Court justified the nationwide injunction by stating that “the breadth of ABC’s membership, the number of contracts [the States and ABC] will be involved with, and the fact that EO 14042 applies to subcontractors and others, limiting the relief to only those before the court would prove unwieldy and would only cause more confusion….”
An appeal to the U.S. Court of Appeals for the Eleventh Circuit is expected to follow in the coming days. Notably, the Eleventh Circuit rejected Florida’s appeal seeking a preliminary injunction against the Biden Administration’s healthcare worker vaccine mandate issued through the Centers for Medicare and Medicaid Services on Monday. Florida v. Dep’t of Health and Human Servs, No. 21-14098-JJ, 2021 WL 5768796 (11th Cir. Dec. 6, 2021). It is possible that a similar outcome could follow for EO 14042, though the underlying legal issues are distinctly different, so it is difficult to predict the outcome with certainty at this point.
Authored By: Michael D. Pierce, Esq.