Status of Biden Administration’s
for Federal Contractors
The Biden Administration issued a COVID-19 vaccine mandate for employees of federal contractors and subcontractors. Executive Order 14042, executed on September 9, and subsequent implementing guidance, required employees of federal contractors and subcontractors to be fully vaccinated by January 18, 2022, absent the existence of a legal accommodation. The Executive Order relied on the Federal Property and Administrative Services Act (FPASA), a federal regulatory system governing procurement, to authorize its mandate. Implementation of the Order is being challenged in the two cases described below.
McDonald Carano attorneys Kristen Gallagher and Philip Mannelly provide the following update on the implementation of the Executive Order which is being challenged in the two cases described below, which are before the Sixth and Eleventh Circuits. Briefing in the Sixth Circuit is expected to finish in early March and oral argument is scheduled for April 4 in the Eleventh Circuit. The U.S. Supreme Court’s January 13, 2022, decisions on the OSHA mandate for large employers and the CMS mandate for healthcare works (click here for information about those two decisions) will impact the upcoming decisions by the Sixth and Eleventh Circuits. Please contact Kristen and Phil with questions about these pivotal cases as well as for assistance navigating any employment and labor law issues relating to COVID-19. (Please click here for information about the status of the Biden Administration’s vaccine mandates for large employers and healthcare workers.)
Status of Nationwide Injunction: On December 7, 2021, U.S. District Judge R. Stan Baker in Georgia issued a nationwide preliminary injunction against the mandate after concluding that “plaintiffs will likely succeed in their claim that the president exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042.” The plaintiffs are a group of states and their public officials, as well as the Georgia chapter of the Associated Building Contractors (ABC) and its national chapter. Judge Baker ruled that the mandate “goes far beyond addressing administrative and management issues [related to contracts],” “works as a regulation of public health, which is not clearly authorized under the Procurement Act,” and lacks a sufficient nexus between the purpose of FPASA and the mandate to justify the mandate.
On December 17, the Eleventh Circuit refused to stay the nationwide injunction blocking the mandate from going into effect while the appeal process moves forward. “Without a showing by the government of an irreparable injury absent a stay, we cannot stay the preliminary injunction,” the three-judge panel said. The Court did not address the government’s likelihood of success on the merits. The Court granted expedited consideration of the government’s appeal, requiring the government to file its initial brief by January 3, 2022 and challengers to the mandate were required to respond by January 24, 2022. The Eleventh Circuit has scheduled oral argument for April 4.
On December 21, U.S. District Judge R. Stan Baker paused all deadlines in the case but set a January 7 deadline for plaintiffs to respond to the Biden Administration’s request for clarifications on the scope of the preliminary injunction Judge Baker issued on December 7. The federal government made its request after the Eleventh Circuit refused to stop the nationwide injunction from going into effect, pending appeal. During the December 21 hearing, Judge Baker asked if the federal government was completely withdrawing a previous motion for a stay filed on December 9 and the government replied that it still wanted a ruling on its request for clarification of two aspects of Judge Baker’s preliminary injunction order that it had raised in the motion: (1) Does the preliminary injunction bar it from unilaterally enforcing Executive Order 14042 or does it leave open the option for the government and private contractors to enter into mutual agreements to include COVID-19 safety clauses in their government contracts. (2) Does the injunction also prevent federal agencies from enforcing masking and physical distancing requirements and requiring the designation of individuals to coordinate COVID-19 safety efforts for contractor workplaces. The state parties and ABC did not object to the stay in the lower court proceedings.
Status of Injunction for Kentucky, Ohio and Tennessee: On November 30, U.S. District Judge Gregory Van Tatenhove issued a ruling that blocked the vaccine mandate for contractors in Kentucky, Ohio, and Tennessee. The court’s injunction reasoned that the health objectives of the Executive Order were too unrelated to the purpose of FPASA, stating that “If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency.” The government appealed that ruling to the Sixth Circuit. On January 5, in a published decision that includes a partial dissent, a Sixth Circuit majority declined to stay the injunction, pending appeal, which blocks the mandate from going into effect in Kentucky, Ohio and Tennessee.
The Court noted that the federal government’s main arguments are unlikely to prevail. “But the government’s argument [that two statutory provisions in the Federal Property and Administrative Services Act authorize the president to order the mandate] is unlikely to succeed for two central reasons: the relevant text, in fact, unambiguously precludes the government’s theory, and, even if there were some ambiguity, the relevant canons of interpretation would foreclose construing the ambiguity in the government’s favor.”
The majority also noted several reasons why the federal government had not shown it will face irreparable injury without a stay to the injunction, including (1) “COVID-19 vaccines have been generally available in the United States — and the present administration has been in office — for nearly a year. Yet the contractor mandate did not emerge until September 2021. The government then delayed the compliance deadline from December 8, 2021, to January 18, 2022. The government’s actions undercut its representations of great urgency in implementation of the contractor mandate.” and (2) In December, the Eleventh Circuit ruled not to stay a nationwide injunction of the same law, so the Sixth Circuit cannot prevent the alleged irreparable harm the federal government claims it will face. Briefing in the Sixth Circuit is expected to finish in early March.
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