United States: The sixth circuit brings a new blow to the contractor’s mandate
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As readers of this blog know, OSHA’s vaccine or testing mandate has occupied a large portion of Circuit Six’s time over the past few weeks. That mandate is now before the Supreme Court, which will hear arguments tomorrow on the mandates of OSHA and CMS. Meanwhile, a third mandate in the era of the pandemic – the federal contractor mandate –made a splash in the sixth circuit yesterday.
This warrant, issued by the Safer Federal Workforce Task Force, requires employees of federal contractors on “covered contracts” to be fully vaccinated against COVID-19. This “subcontractor mandate” potentially covers about a fifth of the entire American workforce.
Kentucky, Ohio, Tennessee and two Ohio sheriff’s offices have filed a lawsuit in the Eastern District of Kentucky, seeking declaratory relief and an injunction. They argued, among other things, that the Federal Property and Administrative Services Act of 1949 (the “Property Act”) – the basis of the Task Force’s authority – does not allow such a broad mandate. They also argued that the mandate violates the law on administrative procedure, the separation of powers and creates problems of federalism.
As readers may know, Justice Van Tatenhove ordered the execution of the contractor’s mandate throughout Kentucky, Ohio and Tennessee. By the time the federal government sought a stay of this injunction with the Sixth Circuit, another Georgia district court had already issued a national injunction against the warrant. The Eleventh Circuit will later refuse to suspend this injunction. To our knowledge, the Department of Justice has not asked the Supreme Court for a stay of any of these decisions.
Yesterday, the Sixth Circuit basically agreed with the Eleventh Circuit and refused to stay the injunction of Judge Van Tatenhove. Judge Bush, joined by Judge Suhrheinrich, ruled that states and sheriffs’ offices had standing and that the federal government had “not established any of the evidence required to obtain a stay.” In Judge Bush’s view, the contractor’s mandate was an illicit reinterpretation of the “uncontroversial purpose” of decades-old property law to facilitate the “economical and efficient” purchase of goods and services. services on behalf of the federal government. Justice Cole drafted a brief dissent, arguing that neither the states nor the sheriff’s offices had standing and that the contractor’s tenure did not exceed the authority of the task force under the Act on the property.
Given the potential importance of these opinions, we’ll be digging deeper into majority and dissenting opinions in the coming days, so as always, stay tuned. We will also post an overview of the arguments for tomorrow’s Supreme Court argument in the OHSA ETS case.
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