The five cases challenging the contractor vaccine mandate filed in various district courts by 22 states, which we discussed on this blog last week, continue to develop. Motions for preliminary injunctions have now been filed in all cases except the suit filed by Texas, and briefing schedules/hearings are set or in process.
Status of Challenges
Here is a quick rundown of the status of the suits:
- Florida (Middle District of Florida) – Motion for a Preliminary Injunction was filed on November 2. On November 8, the court set a briefing schedule. Oral argument is scheduled for December 7 at 9:00 a.m. Eastern in Tampa Courtroom 15 A.
- Texas (Southern District of Texas) – Initial pretrial and scheduling conference set for February. 23, 2022, at 9:00 a.m. Central. As of November 10, no motion for a preliminary injunction has been filed.
- Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming (Eastern District of Missouri) – Motion for Preliminary Injunction was filed on November 4. On November 9, the states filed a Motion to Expedite Preliminary Injunction Briefing.
- Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia (Southern District of Georgia) – Motion for Preliminary Injunction was filed on November 5. Emergency motion to expedite the hearing schedule was filed on November 8, and a telephonic hearing on that motion is scheduled for 4:00 p.m. Eastern on November 10.
- Tennessee, Kentucky, Ohio (Eastern District of Kentucky) – Motion for a Temporary Restraining Order and Preliminary Injunction was filed on November 8. A status conference was held on November 9 to set a briefing and hearing schedule.
The OSHA Emergency Temporary Standard Has Already Been Stayed
As we explained in our prior post, the cases raise serious procedural and substantive statutory questions, along with constitutional concerns, about the legality of the contractor vaccine mandate. Importantly, this is not the only vaccine mandate issued by this administration that is facing legal challenges.
Questions raised by one suit about the legality of the OSHA Emergency Temporary Standard (ETS) applicable to employers with over 100 employees, which was published in the Federal Register on November 5, resulted in the 5th Circuit staying the ETS nationwide the following day, stating in its brief order on November 6 that the petitions “give cause to believe there are grave statutory and constitutional issues with the Mandate.”
The Department of Justice has asked the 5th Circuit to defer ruling on the request for an injunction until the dozen cases challenging the ETS filed in Fifth, Sixth, Seventh, Eighth, Eleventh and D.C. circuits are consolidated in one circuit by the Judicial Panel on Multidistrict Litigation, but because that process could take some time, it would not be surprising if the Fifth Circuit issued a decision later this week. However, those cases are expected to be consolidated at a single circuit court, and once that occurs that circuit will most likely rule on whether prior stays will remain in place.
Next Steps for Government Contractors
Despite the multiple apparent infirmities in the contractor vaccine mandate and the demonstrated willingness of at least one circuit to halt vaccine mandates, there is no guarantee that the contractor vaccine mandate will be stayed. Unless and until that occurs, contractors should continue to work toward compliance to ensure they can meet the revised January 4, 2022 vaccine deadline.
