United States: Blocked: Federal Court orders government to enforce mandate for vaccine contractors in 3 states
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- On November 30, 2021, a U.S. District Court judge for the Eastern District of Kentucky issued a preliminary injunction, ending the government’s application of the federal contractors vaccine mandate to federal contractors and subcontractors in Kentucky, to Ohio and Tennessee.
- The judge addressed the narrow question of whether President Joe Biden could use his delegated authority by Congress to manage federal purchases to force vaccines on employees of federal contractors and subcontractors.
- This vaccine mandate requirement is now “on hold” for contractors and subcontractors in Kentucky, Ohio and Tennessee. The government is expected to appeal the judge’s order to the United States Court of Appeals for the Sixth Circuit.
On November 30, 2021, U.S. District Court Judge Gregory Van Tatenhove for the Eastern District of Kentucky issued a preliminary injunction, ending the government’s enforcement of the federal contractors vaccine mandate on federal contractors and subcontractors. Kentucky, Ohio and Tennessee.
In deciding whether or not to issue the preliminary injunction, the judge addressed the narrow question of whether President Joe Biden could use his congressionally delegated authority to manage federal purchases to force vaccines on employees of contractors and federal subcontractors. “In all likelihood, the answer to that question is no,” the judge said.
As noted in a previous Holland & Knight alert, federal contractors’ vaccine mandate stems from Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which mandated the creation of a Federal Acquisition Regulation (FAR) clause requiring Federal contractors and subcontractors to follow guidelines issued by the Safer Federal Workforce Task Force. The working group guidelines, as amended, require employees of federal contractors and contractors to be “fully immunized” by January 18, 2022 (meaning that employees must receive either the Johnson vaccine & Johnson single dose, i.e. the second dose of Pfizer vaccine or Moderna vaccine by January 4, 2022). This requirement is now “on hold” for contractors and subcontractors in Kentucky, Ohio and Tennessee.
The opinion of the district court
The judge delivered that opinion in a lawsuit filed in early November by the Commonwealth of Kentucky, the State of Ohio, the State of Tennessee and two sheriff plaintiffs, suing in their official capacity as sheriffs for the local counties. He concluded that the plaintiffs were likely to succeed on the merits of their case for the following reasons:
- The President exceeded his powers under the Federal Property and Administrative Services Act (FPASA), 40 USC §§ 101-126, a law designed to provide the federal government with “an economical and efficient system” for contracting. While FPASA has been used (some would say stretched) to impose a variety of requirements on government contractors, the court concluded that the president had likely exceeded his delegated authority under the law, noting: statute, to serve as a basis for the enactment of a public health measure such as compulsory vaccination. The court also noted that FPASA had never been used before to enact “such broad and sweeping public health regulation”.
- The decree likely violates the Market Competition Act (CICA), 41 USC §§ 3301-3312. The court determined that the executive order could prevent “full and open competition” – a requirement for federal government procurement mandated by the CICA – by effectively excluding an offeror who chooses not to follow the vaccine mandate, but otherwise represents the best value for the government, price.
- The executive decree probably violates the doctrine of non-delegation, a principle of constitutional law that prohibits Congress from delegating legislative power to the president “to exercise unlimited discretion to pass laws that he deems necessary or desirable.”
Kentucky et al. vs. Biden et al., n ° 3: 21-cv-00055-GFVT (ED Ky. 30 November 2021) (citing ALA Schechter Poultry Corp. vs. United States, 295 US 495, 537-38 (1935)). The court, referring to FPASA and its goal of promoting economy and efficiency in purchasing, found that the government could not “point to a single instance where the law was used to enact health regulations. public as broad and as radical as compulsory vaccination for all federal contractors and sub-contractors.
- Executive Order Likely Violates the Tenth Amendment of the United States Constitution because it intrudes on an area traditionally reserved for states – the regulation of health and safety matters.
It should be noted that the decree on the mandate is
preliminary – that is, the case is not yet over; the judge only found that the plaintiffs were
likely to succeed on the merits of their business. Additionally, the government is expected to appeal the judge’s order to the United States Court of Appeals for the Sixth Circuit – which, among other things, is the same appellate court responsible for deciding of the validity of the Occupational Safety and Health Administration’s (OSHA) Emergency Interim Decision Requiring all employers with 100 or more employees to have a mandatory COVID-19 vaccination policy.
Conclusion and takeaways
Finally, the preliminary injunction applies only to federal contractors and subcontractors in Kentucky, Ohio, and Tennessee (the three states that collectively challenged the executive order in the Eastern District of Kentucky). Presumably, the government cannot enforce the mandate for “covered contractor workplaces” in these states; defined by the Working Group as locations “controlled by a covered contractor where any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the performance period of a covered contract” .
Entrepreneurs should also keep in mind:
- This decision comes from a judge in the Sixth Circuit, the same circuit determining the fate of OSHA’s vaccine mandate. The Sixth Circuit’s ruling on OSHA’s mandate could shed light on how Judge Van Tatenhove will ultimately rule on the federal contractor’s vaccine mandate, and how the Sixth Circuit may decide this issue if and when the government appeals the order.
- The court declined to issue a nationwide injunction and limited its decision to Kentucky, Ohio and Tennessee. With several lawsuits pending in federal district courts across the country, it is possible that a national injunction will be issued if another more aggressive federal court decides that such a broad injunction is warranted. At the same time, contractors must also be prepared for the possibility of divergent opinions and a jurisdictional patchwork of joined and non-enjoined states.
- The working group has already issued updated / amended guidelines, extending the vaccine deadline from December to January. And the Office of Management and Budget issued a revised determination, revoking a less solid earlier determination and providing additional support for the mandate. It is possible that the government will try again to strengthen the requirement, using all available tools to move the case forward as quickly as possible through the courts and until a favorable resolution.
Holland & Knight will continue to monitor and provide updates as they become available.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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