On December 7, 2021, U.S. District Judge Stan Baker of the U.S. District Court for the Southern District of Georgia, granted a nationwide injunction staying enforcement of the federal government contractor vaccine mandate. The law firm of Wimberly, Lawson, Steckel, Schneider & Stine, P.C. represented the Associated Builders and Contractors (ABC), a trade group representing employers (including Federal contractors) in the construction trades, that was granted permission to participate in the case as an intervenor. It is likely that ABC’s presence in a case brought by the State of Georgia as well as the states of Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia was the deciding factor in the Court’s decision to issue a nationwide injunction as opposed to an injunction touching only the states that are parties to the action because, as the Court noted, “not only is the geographic scope of ABC’s membership broad, their involvement in federal contracts is as well.”
Major news outlets are reporting that several prominent law firms were reluctant to represent their clients in the multitude of legal challenges to the Biden Administration’s vaccine testing mandates. These reports suggest that these big firms had clients who both supported and opposed the mandates: this raised sensitive client and public relations issues.
But, as they say, in every crisis there is opportunity. One consequence of the big firms’ decision to sit this one out is that Wimberly Lawson was tapped by the Associated Builders and Contractors (ABC), a trade group representing employers (including Federal contractors) in the construction trades, to make the case for their industry. Wimberly Lawson’s attorneys have had the kind of experience handling complex labor and employment law matters that makes the firm uniquely suited to handle these types of multifaceted constitutional issues that affect millions of employers and workers. The Wimberly Lawson team was led by Larry Stine and included Kathleen Jennings, Elizabeth Dorminey and Jim Hughes. In addition, the Firm is currently involved with the petition for review related to the OSHA Emergency Temporary Standard (ETS) in the Sixth Circuit Court of Appeals.
The essential question presented in the challenge to Executive Order 14042, the federal contractor vaccine mandate, was whether the president can use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors. U.S. District Judge Stan Baker of the Southern District of Georgia ruled that it is likely that the president cannot, and he granted a nationwide preliminary injunction of the enforcement of the vaccine mandate for federal government contractors.
Judge Baker spent a full day hearing evidence and arguments from the parties (yours truly was there). What became clear from the witnesses presented by the state—representatives of the University of Georgia, Georgia Tech, and Augusta University, was how much time and money they already had spent working to come into compliance with the federal contractor vaccine mandate, and how much they stood to lose it they were unable to reach full compliance (the three institutions’ federal contracts generated approximately $736,968,899.00 in revenue in fiscal year 2021). ABC presented evidence showing that at least two of its members “intended to bid” on specified upcoming federal construction projects, but, following EO 14042, have concluded that it is not practical for them to do so because they likely will not have sufficient employees to perform the job if they enter into a contract that requires all of the covered employees to be vaccinated.
One of the factors that has made compliance with the federal contractor mandate so difficult is the sheer breadth of the mandate; the mandate covers not only persons who are working on federal government contractors, but also persons with whom they come into contact. That factor, alone, makes it a challenge to identify all workers who are “covered” by the mandate. In addition, subcontractors at all tiers are also covered by the mandate unless the subcontract provides only for services.
Judge Baker rejected the federal government’s argument that the states and ABC lacked standing to bring the lawsuit because the Plaintiffs had not “provide[d] [any] evidence that they are (1) parties to a federal contract that already has the challenged clause; or (2) parties to an existing covered contract that is up for an option, extension, or renewal that must include the clause,” and that they have not “identif[ied] any specific, covered solicitations that they plan to bid on or contracts that they plan to enter into in the immediate future.” Judge Baker found that Plaintiff Board of Regents of the University System of Georgia has standing because it has shown that one of its institutions (Georgia Tech) is a finalist for a contract with NASA and it has been advised that, if it is awarded the contract, the at-issue clause must be included in the contract. ABC also provided evidence—using information gathered from the General Services Administration’s Website for federal contracts—that the federal government frequently and routinely issues solicitations and pre-solicitations for bids on Case 1:21-cv-00163-RSB-BKE Document 94 Filed 12/07/21 Page 14 of 28 15 construction contracts (which ABC’s members would normally bid on and be qualified to perform) that would be covered by EO 14042. Judge Baker also noted that Article III standing would exist based on the ample evidence showing that the State Plaintiffs (including many of their agencies) and members of ABC routinely enter into contracts that would be covered by EO 14042,6 have current contracts that could easily fall under the requirements of EO 14042 (if, for instance, they are renewed, modified, or have options that are exercised), and have shown that they would typically continue to seek out contract opportunities with the federal government that now will be covered by EO 14042.
Judge Baker held that the Plaintiff States and ABC were likely to succeed on the merits because the Procurement Act does not authorize the President to issue a vaccine mandate. While the authority of the President to manage the government procurement process is unquestionably broad, it is not without limitations. To that end, the Court found that Plaintiff States and ABC 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.
The Court also distinguished a decision issued by the Eleventh Circuit Court of Appeals just the day before that denied a preliminary injunction in the State of Florida’s challenge to the vaccine mandate for healthcare workers. The Medicare and Medicaid regulatory scheme being challenged in the Florida case is significantly different from the federal contractor process. Moreover, the Court noted, “[f]or both the Medicare and Medicaid programs, Congress charged the Secretary with ensuring that participating facilities protect the health and safety of their patients,” and the at-issue interim rule issued by the Secretary “amend[ed] the infection control regulations for facilities that participate in Medicare or Medicaid . . . [to] require that facilities certified to participate in Medicare or Medicaid ensure their staff are fully vaccinated against COVID-19, unless an employee is exempt . . .” In other words, Congress gave the Secretary of HHS explicit authority to protect health and safety; the Procurement Act contains no such authority.
Although we all acknowledge the value of vaccines, the issuance of the federal COVID-19 vaccine mandates appears to be an attempt by the current administration to take a controversial action “for the greater good.” If anything, the wide ranging mandates provided some cover to employers that were seeking to vaccinate a larger proportion of their workforces but were hesitant to mandate vaccination themselves for fear of losing valuable employees. And perhaps that was the actual intent of these measures—to promote more employee vaccinations for as long as the mandates could withstand judicial challenges. However, as the Supreme Court said in Alabama Ass’n of Realtors, “[i]t is indisputable that the public has a strong interest in combating the spread of the COVID–19[;]” however, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.” Ala. Ass’n of Realtors v. Dept. of Health and Human Servs., 141 S. Ct. 2485 at 2490 (2021).
Kathleen J. Jennings is a former principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters.