AGC of America filed this lawsuit in the U.S. District Court for the Northern District of Texas on December 14, 2021. When it filed its complaint, the association also filed a motion for a Temporary Restraining Order (TRO) and a preliminary injunction against the mandate that federal contractors require many and perhaps all of their employees to be fully vaccinated for COVID-19. In support of that motion, the association filed eight declarations to the effect that the mandate will not promote economy and efficiency in the procurement of federal construction projects, and instead, that it will increase the cost and time to construct such projects.
The court quickly ordered the government to file a status report on the other cases also pending against the federal contractor mandate. The government filed that report on December 20, 2021, and the court then ordered AGC to file a response. AGC took the step on December 22, 2021. Without addressing the association’s motion for a TRO, the court set a January 4, 2022, deadline for the government to respond to the association’s motion for a preliminary injunction and set a January 18, 2022, deadline for AGC of America to reply. As this report is written, AGC of America is reviewing the government’s response to that motion and preparing to file its reply.
In the background are several other cases also pending against the federal contractor mandate. One has already yielded is a preliminary injunction that extends to all 50 states and will continue to bar the enforcement of that mandate at least until the week of April 4, 2022, when the parties to that case will appear in the Eleventh Circuit for an oral argument on the government’s pending appeal of that injunction. Three other cases have yielded preliminary injunctions that collectively extend to the states of Alaska, Arkansas, Florida, Iowa, Kentucky, Missouri, Montana, New Hampshire, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Wyoming. Yet another case has yielded a preliminary injunction that extends to the states of Indiana, Louisiana and Mississippi but is limited to federal contracts with the states themselves.
The procedures for challenging the federal contractor mandate are different from the procedures for challenging OSHA’s ETS, and for that reason, they cannot be consolidated. At the moment, all eyes are focused on the Eleventh Circuit. If AGC also succeeds in getting a preliminary injunction that extends to all 50 states, that is likely to change. A ruling on AGC’s motion for such an injunction could come by the end of the month.
The association’s core contentions are that the president has exceeded his statutory and perhaps constitutional authority and that the Office of Management and Budget, the Federal Acquisition Regulation (FAR) Council and the procurement agencies all violated the statutory and/or regulatory standards and procedures for developing and implementing government-wide amendments to the FAR.
- A December 17, 2021, decision by the U.S. Court of Appeals for the Eleventh Circuit effectively maintains a Georgia federal district court’s nationwide stay (or freeze) of the federal contractor COVID-19 vaccination mandate until—potentially—as late as April 2022.
- The Eleventh Circuit denied a Biden Administration request to immediately remove the nationwide stay and instead requested that the parties to the lawsuit fully brief their arguments on the stay by February 22, 2022. Oral argument on the briefing has been tentatively scheduled for the week of April 4, 2022.
- As a result, it appears as though the Eleventh Circuit may not issue a decision on the stay of the federal contractor vaccine mandate until as late as April. The Biden Administration, consequently, will have to further push back implementation of this federal mandate.
- The argument here does not go to the merits of the mandate, but instead as to whether the existing freeze of the mandate should be maintained or not. As such, litigation is far from over in this particular case and those throughout the country, including by AGC in a federal court in Texas.
- Even as the association challenges the Administration’s two coronavirus vaccine mandates, it continues to work to encourage all construction workers to get vaccinated. AGC recently released a series of public service ads featuring construction workers who nearly died from the virus, urging their peers to get vaccinated. AGC has been urging its members to show the videos to all their workers and is also placing ads featuring the videos in key construction markets. AGC also created a vaccine toolkit for the industry.