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Judge Suspends Federal Contractor Vaccine Mandate Nationwide

December 8, 2021

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R. Stan Baker, U.S. District Judge for the Southern District of Georgia, issued a 28-page ruling following a preliminary injunction for contractors and subcontractors in Kentucky, Ohio and Tennessee instated last week. There have been a slew of legal challenges to this vaccine mandate as well as the other vaccine mandates and rules from the Biden administration.

“While the [Federal Property and Administrative Services Act] explicitly and unquestionably bestows some authority upon the president, the court is unconvinced, at this stage of the litigation, that it authorized him to direct the type of actions by agencies that are contained in [Executive Order] 14042,” which Biden issued in September to establish the mandate, said the judge.

The executive order will also have “a major impact on the economy at large, as it limits contractors’ and members of the workforce’s ability to perform work on federal contracts,” the judge continued. “Accordingly, it appears to have vast economic and political significance.”

The ruling was in response to a lawsuit filed by the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia; the governors of several of those states; and some of the state agencies. The Associated Builders and Contractors Inc. joined as an intervener.

“Given the breadth of [the Associated Builders and Contractors] membership, the number of contracts plaintiffs will be involved with, and the fact that [the executive order] applies to subcontractors and others, limiting the relief to only those before the court would prove unwieldy and would only cause more confusion,” said the judge. “Thus, on the unique facts before it, the court finds it necessary, in order to truly afford injunctive relief to the parties before it, to issue an injunction with nationwide applicability.”

In response to the ruling, Chris Carr, attorney general for the state of Georgia, said in a tweet, ​​”We will continue to stand up for the rule of law to protect our state and our citizens from this unconstitutional and unprecedented federal overreach.”

The Justice Department will “vigorously defend” this mandate in court, said White House Press Secretary Jen Psaki during the briefing on Tuesday. She said the reason the administration proposed these requirements is because officials know they work and “we’re confident in our ability legally to make these happen across the country.” Psaki also touted the vaccination numbers for federal employees and the mandates instituted by other employers.

The “injunction does not appear to apply to other aspects of the contractor COVID-19 requirements issued by the [Safer Federal Workforce] Task Force, including those related to masking and social distancing,” wrote Guy Brenner and Jacob Tucker, of the law firm Proskauer Rose LLP, in a post. “It is unclear whether the federal government will seek to have the injunction lifted, and whether such an effort will be successful.”

Amanda Smith, associate in Tully Rinckey PLLC’s Buffalo office, told Government Executive she was not surprised by this ruling and expects the Biden administration to file an appeal.

“To file an appeal, because the federal government is involved, the deadline to appeal is February 5 (60 days from decision),” she said. The administration “could also file a motion for re-argument within two weeks I believe, but most likely will go the appeal route only.”

The case likely will continue “going up until it gets to the highest court,” Smith said. For other challenges to this mandate, other courts might “for the record confirm that relief has been granted by another court.”

The Biden administration’s vaccine rule for private businesses and vaccine mandate for Medicare- and Medicaid-certified providers and suppliers are also temporarily blocked by courts. So far, the vaccine mandate for federal employees has not been stopped.

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