Biden Federal Contractor Vaccine Mandate Blocked Nationwide by Federal Judge in Georgia

 

Defendant Biden enjoined from enforcing order in any state or territory of the United States of America. Mandate does not satisfy even “lenient standard” Defendant Biden argued was the relevant threshold.

“[A]ny abstract ‘harm’ a stay might cause . . . pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.” 

 

THE STATE OF GEORGIA, et al., Plaintiffs,

v.

JOSEPH R. BIDEN, in his official capacity as President of the United States, et al., Defendants.

CIVIL ACTION NO.: 1:21-cv-163

 

https://cdn.pacermonitor.com/pdfserver/KDQLKJY/153437505/The_State_of_Georgia_et_al_v_Biden_et_al__gasdce-21-00163__0094.0.pdf

 

Plaintiffs et al. includes: States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia; the governors of several of those states; and various state agencies

 

Defendant’s Argument DENIED:

 

Executive Order 14042 (EO 14042) will decrease the spread of COVID-19, which will decrease work absence, reduce labor costs, and improve the efficiency of contractors and subcontractors” and that this “easily satisfies [the] lenient standard” of a sufficiently close nexus between the executive order and the purpose of the Procurement Act. (Id. (quoting 86 Fed. Reg. 50,985–88).)

 

Defendant’s Proposed Scope of Mandate:  Requires all “covered contractors” to be fully vaccinated by January 18, 2022, 3 unless they are “legally entitled to an accommodation.”

 

Covered Contractor definition: “a prime contractor or subcontractor at any tier who is party to a covered contract.”

 

Covered Contract definition: any contract or contract-like instrument that exceeds the minimum threshold of $250,000 subject to the following limitations as set forth in Sec 5 (a) below-

 

https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/ 

 

Holding:

 

Accordingly, the Court concludes, based on the limited record before it, that Plaintiffs are more likely than Defendants to succeed on the issue of whether there is a sufficiently close nexus between EO 14042 and the purposes of the Procurement Act.

 

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

 

Accordingly, the Court ORDERS that Defendants are ENJOINED, during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.

 

Basis for Court’s Injunction:

 

Rule of Law

 

…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.” Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2490 (2021) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 585–86 (1952)).

 

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.

 

Pursuant to clear United States Supreme Court precedent, Congress is expected to “speak clearly” when authorizing the exercise of powers of “vast economic and political significance.” Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) (quotations omitted); see also Utility Air Regul. Grp. v. E.P.A., 573 U.S. 302, 324 (2014).

 

Defendants have not cited to a case upholding the use of the Procurement Act “to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors,” Kentucky v. Biden, 2021 WL 5587446, at *9.

 

Plaintiffs have a likelihood of proving that EO 14042 does not have a sufficient nexus to the purposes of the Procurement Act and thus does not fall within the authority actually granted to the President in that Act.

 

 

Likelihood of Irreparable harm

 

The Court finds that the time and effort spent on these measures in the past—and going forward— constitute compliance costs resulting from EO 14042, which appear to be irreparable. See id. (“[T]he companies seeking a stay in this case will also be irreparably harmed in the absence of a stay, whether by the business and financial effects of a lost or suspended employee, compliance and monitoring costs associated with the Mandate, [or] the diversion of resources necessitated by the Mandate . . . .”); see also Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., 715 F.3d at 1289

 

Additionally, requiring compliance with EO 14042 would likely be life altering for many of Plaintiffs’ employees as Plaintiffs would be required to decide whether an employee who refuses to be vaccinated can, in practicality, be reassigned to another office or another task or whether the employee instead must be terminated. “[A]ny abstract ‘harm’ a stay might cause . . . pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.” BST Holdings, 17 F.4th at 618

 

They [Plaintiff’s] also each provided even more detailed testimony about the laborious undertakings they have had to perform to comply with the mandate, particularly with the impending January 18 deadline. (See, e.g., id. at pp. 24–27 (testimony of Shannon that Georgia Tech had to “shift a tremendous amount of resources” in order to build a “team comprised of [members of the] information technology [department], [the human resources department], . . . medical and health services folks, [Georgia Tech’s] legal team, [and its] emergency services folks” to “very, very rapidly” work to “create something that didn’t exist”—a portal to “marry [human resources] data and medical data together”); id. at pp. 70 (testimony of Guilbeault about the data analytics he performed to identify the wide variety of employees who are covered by the mandate...

 

...fewer than half of the University of Georgia’s employees who may be covered have provided proof of vaccination) [therefore]...

 

...require extensive and costly administrative work by employers and will force at least some individuals to choose between getting medical treatment that they do not want or losing their job (and facing limited job replacement options due to the mandate).

 

Overreach

 

Following the Defendants’ logic and reasoning, the Procurement Act would be construed to give the President the right to impose virtually any kind of requirement on businesses that wish to contract with the Government (and, thereby, on those businesses’ employees) so long as he determines it could lead to a healthier and thus more efficient workforce or it could reduce absenteeism.

Stay of EO 14042 in the Public Interest

 

“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.” Id. at 619.

 

Future Constitutional Hurdles for Federal Vaccine Mandates

 

Additionally, Plaintiffs allege that, if the Procurement Act does indeed authorize the directives issued in EO 14042, then the Procurement Act and EO 14042 are unconstitutional under the non-delegation doctrine and because they exceed Congress’s authority and intrude on state sovereignty. This Court need not and does not issue any determination as to those challenges to resolve the motions before it. However, it is worth noting that other Courts have either expressed agreement with or at least concern about these arguments, see, e.g., BST Holdings, LLC v. Occupational Safety and Health Admin., 17 F.4th 604, 616–18 (5th Cir. 2021); Kentucky, 2021 WL 5587446, at *9.

 

https://cdn.pacermonitor.com/pdfserver/KDQLKJY/153437505/The_State_of_Georgia_et_al_v_Biden_et_al__gasdce-21-00163__0094.0.pdf