A federal judge in Georgia has halted President Biden’s vaccine mandate for federal contractors. Judge R. Stan Baker found that President Biden exceeded his authority under the Federal Property and Administrative Services Act (“FPASA”) when he issued the mandate. Here is a link to Judge Baker’s order: Order Halting Mandate Nationwide. Last week, I wrote about a similar order issued by Judge Gregory F. Van Tatenhove that halted the federal contractor mandate in Tennessee, Kentucky and Ohio. I predicted that “the Georgia judge could use Judge Van Tatenhove’s order as a roadmap for a similar injunction.” That prediction came true. Although Judge Baker’s decision is not a word-for-word copy of the earlier order, it is virtually identical in substance and layout. Judge Baker’s order is encapsulated in the following sentence:
The Court finds that Plaintiffs have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as 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.
Like Judge Van Tatenhove, Judge Baker was also required to determine the geographic scope for his order. The original plaintiffs (suing parties) were the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia; the governors of several of those states; and various state agencies, including the Board of Regents of the University System of Georgia. And, if those were the only plaintiffs, Judge Baker might have limited the scope of his order to those states. But, before issuing his ruling on the injunction, Judge Baker allowed a new party, Associated Builders and Contractors, Inc. (“ABC”), to join the case opposing the mandate. Because ABC is a trade organization with members throughout the county, Judge Baker found that his injunction needed to have nationwide applicability.
So what does this mean for federal contractors?
At a minimum, Judge Baker’s injunction gives some breathing room to federal contractors struggling to comply with the vaccine mandate. At least for right now, the mandate is on hold. But, for how long?
Judge Baker’s order will certainly be appealed to the Eleventh Circuit Court of Appeals in the next few days. For example, the government appealed Judge Van Tatenhove’s order within three days. The government will ask Judge Baker, and then the Eleventh Circuit, for an emergency order halting the nationwide injunction. In short, the Eleventh Circuit could “reactivate” the mandate pending appeal.
We can glean some guidance on timing from a recent series of events in the State of Florida’s challenge to the mandate issued by the Centers for Medicare and Medicaid Services (“CMS”) for health care facilities: Florida v. Department of Health and Human Services, No. 21-14098-JJ, 2021 WL 5768796 (Dec. 6, 2021). Florida filed a lawsuit and asked for a preliminary injunction halting the CMS mandate. But, in that case, a federal judge in Florida issued an order refusing the injunction on November 20, 2021. Florida appealed on November 24, 2021 and asked the Eleventh Circuit for an emergency ruling implementing the injunction. On December 6, 2021, a divided three-judge panel of the Eleventh Circuit entered an order rejecting that emergency motion.
In summary, the Eleventh Circuit issued an order within twelve days in the Florida CMS case. So, it is probably reasonable to expect a similar timeframe when the government appeals Judge Baker’s order.
What can we expect when the Eleventh Circuit rules? The answer to that question largely depends on the judges assigned to the three-judge panel that will review Judge Baker’s order. In the Florida case, Judge Rosenbaum and Judge Jill Pryor spent a large part of their opinion criticizing a case issued by a judge in Louisiana (part of the Fifth Circuit) implementing a nationwide injunction while the Eleventh Circuit appeal was pending. The opinion in the Florida case can be found here: Florida v. HHS. Judge Rosenbaum and Judge Pryor clearly thought that the Louisiana judge should not have entered a nationwide order, but instead limited his injunction to the parties before him, who were states. Presumably, this is why Judge Baker added ABC as a party to his lawsuit — as part of an effort to establish that at least one the parties before him has nationwide interests.
Nevertheless, there is a possibility that the panel reviewing Judge Baker’s order might follow Judge Rosenbam and Judge Pryor’s lead and overturn at least the nationwide aspect of Judge Baker’s order. If that happens, however, it is possible that the injunction might remain in place for the States before Judge Baker: Alabama, Georgia, Idaho, South Carolina, Kansas, Utah and West Virginia.
This constantly evolving situation remains clear-as-mud. Right now, it looks like federal contractors in Alabama have at least a two-week reprieve from compliance with the vaccine mandate. During that time, I encourage contractors to ensure that they have policies and procedures in place for compliance with the mandate in the event that it is “reactivated” in some fashion. Fortunately, even before Judge Baker’s order, the Safer Federal Workforce Task Force made clear that it was willing to work with federal contractors making “good faith efforts” at compliance. If you have a plan in place for compliance, then I am hopeful that contracting officers will work with you in the future if the mandate is reinstated.