December 8, 2021
On December 7, 2021, in Georgia’s Southern District, U.S. District Court Judge R. Stan Baker issued a nationwide injunction blocking the enforcement of the Federal COVID vaccine “mandate” for federal contractors and subcontractors in all covered contracts. The Georgia decision is the second to overturn the federal contractor vaccine mandate; on November 30, a federal judge in Kentucky imposed a similar ban on enforcement but limited the scope of his prohibition to contracts and subcontracts in only the three states that were the plaintiffs in that suit – Kentucky, Ohio and Tennessee. However, other federal district courts that have considered the same issue refused to issue any halt to its implementation.
Again on December 7, the Biden Administration reaffirmed its support for the Federal COVID vaccine mandate for contracts and subcontractors. It will almost certainly appeal to overturn the Georgia court’s immediate nationwide injunction as well as its view of the scope of the President’s authority to impose the vaccine mandate on federal contractors and subcontractors doing business with the Federal Government. The U.S. Justice Department has already appealed the Kentucky 3-state injunction and the underlying rationale for the Kentucky court’s decision.
While the president has broad authority to manage the Federal Government’s procurements and its processes, it has long been recognized that this authority is not unlimited. Federal judges have previously reviewed executive actions by former presidents, and now by President Biden, as exceeding the authority provided under the Federal Property and Administrative Services Act. However, not every federal district court judge, appeals court, or even the Supreme Court, has been consistent in deciding the scope of that statutory and presidential authority.
With respect to the FAR COVID rule, the scope of the president’s authority will have to play out in multiple venues before there is a clear resolution to the President’s mandate of contractor vaccinations for COVID. For contractors, one of the most valuable aspects of the FAR procurement rule is the assertion of “federal preemption” over inconsistent state or local law. Without that protection, federal contractors who have an interest in requiring vaccinations for their own workforces will now have to navigate through the patchwork of state and local authorities – some of which oppose the vaccine “mandate” and some of which require it.
We will continue to closely monitor developments and provide our clients with the most up-to-date information available about these and related cases and federal actions.
If you have any questions or need any additional information, please do not hesitate to contact the undersigned.
Nichols Liu LLP
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