On Tuesday, November 30th, the United States District Court for the Eastern District of Kentucky issued a preliminary injunction halting the government's enforcement of the federal contractor vaccine mandate on federal contractors and subcontractors in Kentucky, Ohio, and Tennessee. A copy of the decision is attached.
The injunction is limited to the government’s enforcement against federal contractors and subcontractors in Kentucky, Ohio, and Tennessee, and does not apply outside of those three states. It is expected that the government will appeal the preliminary injunction to the United States Court of Appeals for the Sixth Circuit.
The lawsuit was filed by the States of Kentucky, Ohio, Tennessee, and two sheriffs. The district court concluded that the plaintiffs were likely to succeed in their suit to enjoin the federal contractor vaccine mandate for the following reasons:
“While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination. If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency.”
“In National Government Services, the Federal Circuit determined that a contract award limit placed on contractors by Centers for Medicare and Medicaid Services violated the Competition in Contracting Act because it failed to provide for full and open competition, which the Act requires. 923 F.3d at 990. The court held that ‘the Award Limitations Policy precludes full and open competition by effectively excluding an offeror from winning an award, even if that offeror represents the best value to the government.’ Id. Here, Defendants may run into the same problem: contractors who ‘represent  the best value to the government’ but choose not to follow the vaccine mandate would be precluded from effectively competing for government contracts. Id.”
“However, the Fifth Circuit recently found that the “Occupational Safety and Health Act, which created OSHA,” could not be used under the nondelegation doctrine to “make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.” BST Holdings, LLC v. OSHA, --- F.4th --- -, 2021 WL 5279381, at *3 (5th Cir. Nov. 12, 2021). If OSHA promulgating a vaccine mandate runs afoul of the nondelegation doctrine, the Court has serious concerns about the FPASA, which is a procurement statute, being used to promulgate a vaccine mandate for all federal contractors and subcontractors.”
“The Fifth Circuit recently addressed federalism concerns in a similar governmentally imposed vaccine mandate context:
[T]he Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power…The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power. In sum, the Mandate would far exceed current constitutional authority. BST Holdings, LLC, 2021 WL 5279381, at *7 (citations omitted).
The Court finds BST Holdings to be persuasive. On the record currently before the Court, there is a serious concern that Defendants have stepped into an area traditionally reserved to the States, and this provides an additional reason to temporarily enjoin the vaccine mandate.”
The district court did reject the plaintiffs’ claims that the government violated the Administrative Procedures Act in implementing the federal contractor vaccine mandate, ruling that:
“Although the procedural path taken by the agencies was, at times, inartful and a bit clumsy, the Court finds based on the record before it that the Defendants likely followed the procedures required by statute.”
Notably as expected, this decision comes from a district court in the Sixth Circuit, the same circuit addressing challenges to OSHA’s COVID-19 Emergency Temporary Standard (ETS). The Sixth Circuit's decision on the challenge to the OSHA mandate will likely provide some insight into how the issue will be decided by the Sixth Circuit, if the district court’s preliminary injunction order is appealed by the government, as we expect it will be.
We will continue to monitor developments on this issue and other lawsuits that are challenging the federal contractor vaccine mandate.