On December 7, 2021, R. Stan Baker, judge for the United States District Court for the Southern District of Georgia, enjoined enforcement of Executive Order 14042 (“EO 14042”) “in all covered contracts in any state or territory of the United States of America.” EO 14042 requires that contractors and subcontractors performing work on certain federal contracts ensure that their employees and others working in connection with the federal contracts are fully vaccinated against COVID-19. The plaintiffs included the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia; the governors of several of those states; various state agencies; the Associated Builders and Contractors, Inc. (“ABC”), a trade organization; and ABC’s Georgia chapter. In deciding in favor of the plaintiffs, the court cited the Kentucky v. Biden case, No. 3:21-cv-55, 2021 WL 5587446, at *9 (E.D. Ky, Nov. 30, 2021), which stated, “This case is not about whether vaccines are effective. They are.” The judge also acknowledged the “tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe.” But, despite those acknowledgements, the court stated:
However, even in times of crisis, this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities. Indeed, the United States Supreme Court has recognized that, while the public indisputably “has a strong interest in combating the spread of [COVID-19],” that interest does not permit the government to “act unlawfully even in pursuit of desirable ends.”
The court concluded that the plaintiffs likely will succeed in their claim that President Biden exceeded the authority given to him by Congress through the Federal Property and Administrative Services Act in issuing EO 14042. On this point, the court stated, “While the Procurement 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 EO 14042.” With respect to the irreparable injury requirement, the court concluded that “the time and effort spent on these measures [ensuring that employees are fully vaccinated] . . . constitute compliance costs resulting from EO 14042, which appear to be irreparable.” In addressing the balancing of the harms, the court stated in part:
Enjoining EO 14042 would, essentially, do nothing more than maintain the status quo; entities will still be free to encourage their employees to get vaccinated, and the employees will still be free to choose to be vaccinated. In contrast, declining to issue a preliminary injunction would force Plaintiffs to comply with the mandate, requiring them to make decisions which would significantly alter their ability to perform federal contract work, which is critical to their operations.
Finally, the court wrote two sentences in discussing the public interest as follows:
For similar reasons, a stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of [EO 14042] has contributed to untold economic upheaval in recent months” and “the principles at stake when it comes to [EO 14042] are not reducible to dollars and cents.”
Although the court could have limited the scope of the injunctive relief to these seven states, it decided not to do so. Instead, it concluded that in order to truly afford injunctive relief to the parties before it, an injunction with nationwide applicability was warranted.
Thus, the Supreme Court of the United States will likely agree to hear the U.S. government’s appeal on an expedited basis.
AGG will closely follow all developments in this case. For now, however, federal contractors and subcontractors need not comply with EO 14042.