TALLAHASSEE — Florida Gov. Ron DeSantis and Attorney General Ashley Moody filed another lawsuit against the U.S. government Thursday, challenging the rule requiring companies that are federal contractors to show proof of vaccination or weekly COVID tests of their employees and calling it a “heavy-handed mandate never authorized by Congress.”
The lawsuit, filed in the U.S. District Court in the Middle District of Florida’s Tampa division, is one in a series of lawsuits against the federal government’s COVID-19 protocols, specifically the vaccine mandates, imposed by President Joe Biden. It seeks to halt implementation of the Dec. 8 deadline that applies to federal contractors.
“We are going to seek a preliminary injunction so that this mandate isn’t allowed to be imposed at the expense of the jobs of Floridians,’’ DeSantis said at a news conference in Lakeland. “We’ve got a very big footprint of companies that do contracting work for the federal government,” including the defense contractors and many along the Space Coast of Florida. “There’s a lot of folks that will be in the crosshairs on this.”
The complaint notes that several state agencies hold contracts with the federal government. The Florida Department of Education provides vending and other food-related services in federal buildings in Florida, and Florida’s public universities also have many contracts with NASA, especially for research.
“These contracts are worth tens of millions of dollars, if not more,” the complaint said. “Because Florida’s employees are generally not required to be vaccinated, the challenged actions threaten Florida with the loss of millions of dollars in future contracting opportunities and put undue pressure on Florida to create new policies and change existing ones, each of which threatens Florida with imminent irreparable harm.”
The executive order issued by Biden on Sept. 9 said the intention was to “decrease the spread of COVID-19, which will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the federal government.”
On Sept. 24, the White House Safer Federal Workforce Task Force released guidance setting a Dec. 8 deadline for most employees of federal contractors to get vaccinated against the coronavirus or allow accommodation for qualified employees. The Federal Acquisition Regulatory Council on Sept. 30 followed with a memo on implementing the mandate.
In addition to arguing that Biden has no authority to issue the rule, the lawsuit notes that the rule encourages agencies to make deviations as needed but, Moody argues, “deviations are not an appropriate manner to implement a government-wide procurement policy.”
Another legal challenge brewing?
DeSantis said he is also prepared to challenge a rule sought by Biden that requires businesses with 100 or more employees to offer either a vaccine or a weekly testing option to keep their workplaces safe from COVID-19. The rule is expected to be released by the Occupational Safety and Health Administration in the next week, but questions loom about whether it is legal.
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“It still hasn’t come out yet after all these weeks,’’ DeSantis said. “And I wonder whether it’s not come out because it’s got a lot of problems. There’s not going to be, I think, a very clear path for that to go forward.”
At a national level, however, the Business Roundtable, whose membership is composed of corporate CEOs, said it is supportive of the Biden mandate because it affirms policies already in place in many companies.
DeSantis also said he should have a proclamation released Thursday that sets the dates for a November special legislative session he said last week he wanted to impose more penalties on businesses that require vaccines or regular COVID-19 testing of their employees. The governor said he supports a ban on vaccine mandates, but he has backed off calling for that in Florida in the face of quiet resistance among the business community.
“In Florida, we believe these things are choices based on individual circumstances,” he said.
The Biden Administration has not commented on the lawsuit, but on Oct. 12, White House spokesperson Jennifer Psaki vowed to implement the executive order in the face of criticism from both DeSantis and Texas Gov. Greg Abbott, who tried and failed to get the Texas Legislature to prevent employers from requiring vaccines or testing in their workplaces.
She said the governors were “putting politics ahead of public health” and suggested that “every leader should be focused on supporting efforts to save lives and end the pandemic.”
Moody, who has used her office to assist DeSantis in pursuing his opposition to mandates, said she is making good on a promise.
“Never did we dream that in this administration we would be having to repeatedly push back on unlawful actions coming out of Washington and incompetent, reckless leadership coming out of Washington,” she said at the news conference. “But we’re here, and we said when these vaccine mandates were announced that we would take legal action and push back and, I’m proud to say, today we are fulfilling that promise.”
The lawsuit’s argument
The lawsuit argues that the federal rule is invalid “because it does not reflect reasoned decision making” and “is a trojan horse for federal regulation of public health.”
In addition to Biden, the lawsuit names former U.S. Sen. Bill Nelson as head of the National Aeronautics and Space Administration, and other federal officials as defendants.
In the complaint, Moody argues that the federal government is using administrative policy to pursue public health goals and that violates the federal administrative procedures act.
“While the government pays lip service to the rationale of ‘improv(ing) economy and efficiency’ in federal procurement,” the complaint states, “… it openly admits that its true purpose is to ‘get more people vaccinated and decrease the spread of COVID-19.’ "
Since the delta variant led to a record surge in COVID cases and deaths in Florida, the governor has steered away from promoting the vaccine and instead directed his energy on allowing people to get monoclonal antibody treatments when they fall ill with the virus, and he has focused his public comments on opposing vaccine requirements. He refers now to vaccines as “jabs” and “shots.”
“We’ve gone from 15 days to slow the spread to three jabs to keep your job somehow. Are you kidding me?’’ he said Thursday.
Moody also sued the Biden administration and the U.S. Centers for Disease Control and Prevention in April over the federal shutdown order of the nation’s cruise industry. In September, Moody wrote a legal opinion saying that school districts must comply with a state rule that says parents must have the ability to opt their kids out of mask requirements “unless and until the judiciary declares them invalid.”
McClatchy White House correspondent Bryan Lowry contributed to this report.