A federal judge in Georgia has blocked the Biden Administration from enforcing its vaccine mandate for federal contractors across the country, siding with several state attorneys general and contractors who said the mandate created an unfair economic burden.
Tuesday’s ruling, by Judge Stan Baker in Georgia’s southern district, determined that President Biden never had authority under federal procurement law to issue the executive order that established the mandate in the first place. The government had argued it was necessary to promote “economy and efficiency” under the Federal Property and Administrative Services Act.
The legal reasoning behind the latest preliminary injunction largely mirrors that of a similar injunction a Kentucky judge issued a week earlier. But it is far broader in its scope, blocking the mandate in all 50 states and U.S. territories.
Although the initial lawsuit was filed by state elected officials in Georgia and six other states, the judge also allowed a construction trade association, the Associated Builders and Contractors (ABC), to join the lawsuit as an intervenor. And Judge Baker found that since ABC has members throughout the country, the only way to address what he called an “extreme economic burden” was through a nationwide injunction.
“The court heard from three witnesses who described the incredibly time-consuming processes they have undertaken to identify the employees covered by the mandate and to implement software and technology to ensure that those employees have been fully vaccinated (or have requested and been granted an accommodation or exemption) by the deadline in January,” he wrote. “Not only must plaintiffs ensure that their own employees satisfy the mandate, but they also must require that any subcontractors’ employees working on or in connection with a covered contract are in compliance.”
The judge said he was also persuaded by testimony from construction contractors, during a day-long hearing last week, who said that fewer than 50% of their employees were vaccinated, and many had threatened to quit if forced to get shots.
Like in the Kentucky case, Tuesday’s ruling found the president has wide discretion to order unilateral changes to federal procurement policy, but only if the new policy has a “sufficiently close nexus” to economy and efficiency in federal contracting. But also like in the Kentucky case, the Georgia court found public health mandates don’t meet that test.
“While the court is aware of cases where courts have held that a variety of types of executive orders were authorized under the Procurement Act, none have involved measures aimed at public health and none have involved the level of burdens implicated by Executive Order 14042,” Judge Baker wrote. “[The order] has already required and will continue to 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).”
The Justice Department is likely to appeal the latest decision. It has already challenged last week’s Kentucky injunction before the Sixth Circuit Court of Appeals, and in the meantime, has asked the judge to stay his ruling while the appellate court considers the case.
In a filing in the Kentucky case late Friday, the government argued delaying the vaccine mandate would “reverberate across the entire nation,” hurt contractors productivity, and hinder federal agencies’ efforts to fight the COVID-19 pandemic.
“We know vaccination requirements work. The federal government, the country’s largest employer, has successfully implemented its requirement in a way that has boosted vaccinations and avoids any disruptions to operations,” said an Office of Management Budget spokesperson, who declined to be named, in response to Tuesday’s ruling. “Our implementation sends the clear message to businesses, including federal contractors, that similar measures will protect their workforce, protect their customers, and protect our communities. Importantly, contractors that have moved forward with a vaccination requirement are already on track to replicate the federal government’s success. We are confident in the government’s authority to promote economy and efficiency in federal contracting through its vaccine requirement, and the Department of Justice will vigorously defend it in court.”
In a statement, ABC, the construction trade group, said it was pleased with the ruling.
“ABC’s participation in the case was essential to nationwide and construction industry relief, which would otherwise have been limited to the states that sued,” said Ben Brubeck, the group’s vice president of regulatory, labor and state affairs. “This is a big win in removing compliance hurdles for the construction industry, which is facing economic challenges, such as a workforce shortage of 430,000, rising materials prices and supply chain issues. ABC continues to support vaccinations and encourages members to use its COVID-19 vaccination toolkit, resources and guidance for federal contractors to keep workers safe on construction jobsites.”