A federal appeals court ruled it will not lift a ban in three states on President Biden’s COVID-19 vaccine mandate for federal contractors. On Jan. 5, 2022, the Sixth Circuit Court of Appeals refused to stay an injunction blocking the mandate from taking effect in Ohio, Kentucky and Tennessee pending appeal. In a split decision, the Court primarily based its determination on three key findings: (1) President Biden lacked the authority to implement the mandate, (2) the states challenging COVID-19 mandate for federal contractors had standing to do so, and (3) the federal government had not demonstrated that it would be irreparably harmed by the injunction.
President Biden Lacked the Authority to Implement the COVID-19 Mandate for Federal Contractors
Back in November, United States District Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky granted a preliminary injunction blocking the COVID-19 vaccine mandate for federal contractors from taking effect throughout Ohio, Kentucky and Tennessee. Judge Van Tatenhove reasoned that the COVID-19 vaccine mandate for federal contractors exceeded President Biden’s federal procurement authority under the Federal Property and Administrative Services Act (the “Act”).
On this appeal by the federal government, the Sixth Circuit agreed with the District Court’s analysis, stating that the plain text of the Act “does not authorize the contractor mandate.” The Court further noted that the federal government failed to provide any textual support for their arguments because the Act “undermines” its position. The Court ultimately concluded that the federal government is unlikely to prevail on its argument that the Act authorizes the imposition of the COVID-19 vaccine mandate for federal contractors.
Ohio, Kentucky and Tennessee Had Standing to Challenge the COVID-19 Vaccine Mandate for Federal Contractors
The Court rejected the federal government’s argument that Ohio, Kentucky and Tennessee lacked standing to challenge the COVID-19 vaccine mandate for federal contractors in their own proprietary capacities. The Court explained that the states are “threatened with the imposition of the contractor mandate” and therefore have standing to bring this lawsuit as “contractors with the federal government.” However, the Court agreed with the federal government that the states lack parens patriae standing. This means that the states do not have standing to sue the federal government on behalf of and for injuries suffered by their citizens. Although the Court concluded that the states do not have parens patriae standing, the states still have standing to sue the federal government in their own proprietary capacities to vindicate their own interests threatened by the mandate.
The Federal Government Failed to Demonstrate Irreparable Harm
The Court was also not persuaded that the federal government would suffer irreparable harm if the injunction is not stayed. In reaching this conclusion, the Court emphasized that the federal government’s sense of urgency is undermined by the fact that COVID-19 vaccines have been widely available for nearly a year, yet President Biden did not implement the COVID-19 vaccine mandate for federal contractors until September 2021. In addition, the Court noted that the federal government has not explained why the COVID-19 vaccine mandate for federal contractors must go into effect immediately in order to avoid irreparable harm when they have delayed enforcement of OSHA’s Emergency Temporary Standard until Feb. 9, 2022.
Perhaps most determinative, the Court also provides that the Eleventh Circuit recently declined to stay a nationwide injunction on the COVID-19 vaccine mandate for federal contractors. Thus, even if the Sixth Circuit decided to grant the federal government’s motion, the mandate would still be blocked from going into effect nationwide.
If you are an employer or federal contractor with questions or concerns about these latest developments and how they may impact you or your business, contact KJK’s Rob Gilmore at firstname.lastname@example.org or 216.736.7240.