On Wednesday, January 5, 2022, the U.S. Court of Appeals for the Sixth Circuit issued another setback to the COVID-19 vaccine mandate for federal government contractors. In its opinion, the four-judge panel upheld the November 30, 2021 preliminary injunction and denied the Government’s request to stay the injunction “because the government has established none of the showings required to obtain a stay.” On appeal, the government asserted that the three states involved, Kentucky, Ohio, and Tennessee, and two Ohio sheriffs’ offices which brought the initial claim did not have standing to bring such a case. Additionally, the government argued that even if there was standing, the Property Act authorizes the contractor mandate. However, the Court of Appeals determined all plaintiffs established standing based on four elements and held the Property Act does not authorize the President to take such action.

In determining whether the three states and two sheriff’s offices have standing based on a number of factors. First, the states and sheriffs’ offices established standing through their own proprietary capacities as federal government contractors. The states also established standing by showing the mandate threatens to damage each of the states’ economies and because “the regulation of the public health of state citizens in general and the decision whether to mandate vaccination” are traditionally left to the states and imposing such a mandate can implicate federalism issues.

Next, the court moved on to the government’s argument that, even if the parties established standing, the President nevertheless has the authority to issue the mandate through the Property Act. The court held the Property Act does not authorize the vaccine mandate, but rather precludes it, stating that while the President has “statutory authority [under 40 U.S.C. 101] to implement an ‘economical and efficient’ method of contracting” nonpersonal services, there is no textual basis that he may “impose whatever medical procedure deemed ‘necessary’ on the relevant services personnel to make them more ‘economical and efficient.’” Further, the court opined on where the President’s power would end if the vaccine mandate were allowed.

“[I]f the President can order medical interventions in the name of reducing absenteeism, what is the logical stopping point of that power? Even vaccinated employees may contract the flu (or COVID-19) at family gatherings, concerts, sporting events, and so on. May the President, in the name of the Property Act, mandate that covered employees also wear masks in perpetuity at each of those events to reduce the chances of contracting an airborne communicable disease and later spreading it to coworkers, thus creating absenteeism?”

The court wrapped up its decision by stating, again, that such a mandate encroaches on federalism, the state’s rights to govern certain matters not set aside to the federal government.

Regardless of the outcome in this case this is a constantly evolving matter in which many other cases are currently pending. Check back here at SmallGovCon where we will keep you updated with the latest.

Questions about this post? Email us or give us a call at 785-200-8919.

Looking for the latest government contracting legal news? Sign up here for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.