United States: Georgia Court Issues Nationwide Injunction Of Executive Order 14042—How Should Contractors Respond?

On December 7, 2021, the U.S. District Court for the Southern District of Georgia ordered a nationwide injunction of Executive Order 14042 (the EO or EO 14042), temporarily suspending the EO's vaccination, masking, and social distancing requirements and all implementing guidance. Although the Georgia court's nationwide injunction likely will remain in effect for the immediate future, federal contractors and subcontractors should consider continuing some efforts to prepare for compliance with the EO in case the injunction is overturned. They should balance such efforts with the patchwork of seemingly conflicting state and local mandates, including mandatory masking and social distancing laws on the one hand and anti-vaccination laws on the other hand. 

The Nationwide Injunction

The Georgia case was originally brought by seven states (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia) and was later joined by the Associated Builders and Contractors, Inc. (ABC), a trade organization representing construction contractors. The Georgia court granted the plaintiff's motion for a preliminary injunction (PI) of the EO, ruling that it exceeded the President's authority under the Federal Property and Administrative Services Act (FPASA). Given its ruling under FPASA, the court deemed it unnecessary to consider the plaintiffs' Administrative Procedure Act and constitutional arguments. In considering what form of relief to grant, the court acknowledged that nationwide injunctions should be used sparingly, but it decided that a nationwide injunction was necessary in this case in order to provide meaningful relief to ABC and its members, which hold federal contracts around the country.

The Georgia decision follows on the heels of a November 30, 2021, decision by the U.S. District Court for the Eastern District of Kentucky staying enforcement of the EO in three states (Kentucky, Ohio, and Tennessee) in Commonwealth of Kentucky, et al. v. Joseph R. Biden, et al. Since the Kentucky ruling, the U.S. government has filed a notice of appeal with the U.S. Court of Appeals for the Sixth Circuit, which has been docketed as Case No. 21-6147, and has sought to stay the injunction pending appeal. Given the appeal and stay motion that the defendants filed in the Kentucky case, we expect the defendants in the Georgia case to file a similar appeal to the U.S. Court of Appeals for the Eleventh Circuit emergency motion along with a motion to stay the nationwide injunction pending appeal.

Related Cases Challenging Legality of Executive Order 14042

Notwithstanding the Georgia court's issuance of a nationwide injunction and the Kentucky court's more limited injunction, contractors and agencies alike should continue to monitor developments in similar cases challenging EO 14042. Plaintiffs in those cases likewise filed motions for preliminary injunctions and/or applications for temporary restraining orders which, if granted, could further complicate the landscape for contractors. Although the courts may stay those other cases pending the outcome of the Georgia and Kentucky cases, it is also possible that they will go forward with their proceedings, potentially leading to a patchwork of conflicting and overlapping decisions.

Even if other courts disagree that injunctive relief is warranted, the injunctions granted by the Kentucky and Georgia courts—including the Georgia court's nationwide injunction—will remain in effect unless and until the Kentucky or Georgia courts stay their own injunctions, or the Sixth or Eleventh Circuits (or the Supreme Court) overturn those decisions on appeal. Other district courts, and even other circuit courts, lack the authority to countermand the Georgia court's nationwide injunction. Depending on the decisions issued by the respective circuit courts, the Supreme Court might decide the fate of EO 14042 sooner rather than later, even if only in the limited capacity of a preliminary injunction. 

The following chart provides an overview of several key cases, including the relevant plaintiff-states and the dates of recent, important developments in each:

Additional information on these cases is available in our recent article.

What the Nationwide Injunction Means for Federal Contractors and Subcontractors

In light of the Georgia court's nationwide injunction, federal contractors and subcontractors across the nation are left with many unanswered questions—especially, what now? 

The ultimate fate of the EO remains to be seen. The government has already appealed the Kentucky decision and will likely do the same for the Georgia court's nationwide injunction. Notably, an appeal of the Georgia decision will go to the Eleventh Circuit, which is the same appellate court that recently denied the state of Florida's motion for an injunction pending appeal of the U.S. Department of Health and Human Services' interim rule imposing a separate federal vaccine mandate in facilities that provide healthcare services to Medicare and Medicaid beneficiaries. Interestingly, the Sixth Circuit is now charged with resolving both the Kentucky court's injunction of EO 14042 and the consolidated cases challenging the Occupational Health and Safety Administration's (OSHA) emergency temporary standards (ETS) on COVID-19 vaccines and testing, including the stay issued by the U.S. Court of Appeals for the Fifth Circuit that we reported on Federal Court Temporarily Halts OSHA ETS—EO 14042's New January 4, 2022 Vaccine Deadline Remains and Untangling the Vaccine Mandate – Updates and Answers to Frequently Asked Questions. 

Either way, contractors should prepare for all possible outcomes. As of the date of this alert, the Safer Federal Workforce Task Force has not yet issued any guidance or an FAQ addressing either of the courts' injunctions. The U.S. General Service Administration (GSA) has, however, posted the following update to its website:

Update: On November 30, 2021, in response to a lawsuit filed in the United States District Court, Eastern District of Kentucky, a preliminary injunction [PDF - 458 KB] was issued halting the Federal Government from enforcing the vaccine mandate for Federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.

GSA implemented the vaccine mandate stemming from Executive Order 14042 through Class Deviation CD-2021-13 [PDF - 370 KB]. Pursuant to the preliminary injunction, GSA will not take any action to enforce FAR clause 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors in all covered contracts or contract-like instruments being performed, in whole or in part, in Kentucky, Ohio and Tennessee.

GSA thus will not enforce the vaccine mandate or other requirements of the FAR clause in Kentucky, Ohio, and Tennessee.  Similarly, the Department of Defense (DoD) has issued a revised class deviation stating that contracts in Kentucky, Ohio, and Tennessee are exempt from the clause implementing EO 14042's requirements, as follows:

Contracting officers shall exempt new and existing solicitations and contracts, task orders, and delivery orders that will be performed, in whole or in part, in the States of Kentucky, Ohio, and/or Tennessee from the requirements of this class deviation. In addition, contracting officers shall not enforce the deviation clause that is in a contract, task order, or delivery order that will be performed, in whole or in part, in the States of Kentucky, Ohio, and/or Tennessee.

The GSA and DoD very likely will take the same stance for all states in light of the Georgia court's nationwide injunction, and other federal agencies will likely follow suit. To be safe, however, prime contractors should consider contacting the contracting officers overseeing their federal contracts that already have the EO clause incorporated to confirm the agency will not seek enforcement of the EO while the injunction is in place. Federal subcontractors should consider taking a similar approach for their prime contractors and/or higher-tier subcontractors. 

For contractors that have not yet accepted the requirements of EO 14042 into a new or existing contract, the Georgia court's decision provides solid footing to resist inclusion of the clause, at least for now. Moreover, the defendants' position in the Kentucky briefs suggests that—even absent the current injunctions—the government deems inclusion of the requirements of EO 14042 mandatory in new  contracts only, and that inclusion of the clause is entirely voluntary for existing contracts.

Although contractors will likely not need to comply with the EO while the current injunctions remain in force, contractors should consider whether to continue some efforts to get themselves closer to full compliance with the EO in case the stay of the EO is overturned. Such actions could include continuing to collect vaccination information from covered contractor employees, developing policies and procedures that could be issued quickly if the EO goes back into effect, and processing accommodation requests. 

For contractors who want to move more aggressively to require vaccination, the existing injunctions do not prohibit contractors from voluntarily deciding to continue mandatory vaccines policies on their own. As long as the injunctions remain in force, however, contractors will not be able to rely on the EO to preempt state laws and thus will need to ensure that any such efforts comply with applicable state and local laws. In states that imposed statutes or orders prohibiting mandatory vaccines or expanding the grounds for accommodation requests, contractors should carefully review their policies and practices to ensure they do not run afoul of the relevant state and local requirements.  

Contractors should also recognize that the government may fight requests for reimbursement for their EO compliance costs.  Even before the Kentucky and Georgia cases, the government staked out the position that reimbursing a contractor's costs for complying with the EO requirements is unnecessary because (in the government's view) the vaccine mandate will only improve contractor efficiency and thus reduce costs. In its briefs opposing the injunctions, the government also took the position that the clause is purely voluntary for existing contracts, which could form another basis for the government to resist reimbursement requests. And the courts' granting of the injunctions only complicates the picture: with any compliance efforts now arguably voluntary, the government will have further ammunition to resist reimbursement requests, at least for fixed-price contracts. Given this extremely complicated landscape, it is all the more important for federal contractors to reserve the right to seek reimbursement of their implementation and compliance costs. In addition, although GSA and DoD have begun to provide some clarity in this area, contractors should consider requesting specific guidance from their contracting officers on the effect of the various injunctions on their contracts.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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