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Sixth Circuit upholds block on vaccine mandate for federal contractors in three states

The ruling is the latest blow to the Biden administration’s plan to get federal contractors and subcontractors vaccinated against Covid-19.

CINCINNATI (CN) — The Sixth Circuit decided Thursday to keep in place an injunction blocking enforcement of a Covid-19 vaccine mandate for federal contractors in Kentucky, Ohio and Tennessee.

Originally, the Biden administration's rule required all federal contractors and subcontractors to be vaccinated against Covid-19 before Jan. 4, 2022, but a federal judge blocked the mandate from affecting contractors in the three states that sued.

The Sixth Circuit heard oral arguments in the case last July, which the debate focused on whether the Federal Property and Administrative Services Act of 1949, also known as the Procurement Act, gave President Joe Biden the power to issue the mandate.

In a 17-page ruling, the Cincinnati-based appeals court found that it did not and that the Biden administration had likely exceeded its authority.

Writing for a unanimous three-judge panel, U.S. Circuit Judge Joan Larsen said the scope of the mandate "is stunning."

“The President has claimed no inherent constitutional power here; instead, he maintains that the Federal Property and Administrative Services Act of 1949 authorized his order. The district court and a motions panel of this court concluded that the President likely exceeded his powers under that Act. We agree,” the ruling states.

Larsen, a Donald Trump appointee, went on to write that the injunction is warranted because the three states would incur financial costs attempting to comply with the mandate before a final ruling is issued on the merits.

“The plaintiffs are also likely to incur unrecoverable compliance costs in the absence of a preliminary injunction. The Task Force Guidance incorporated by the executive order requires employers to designate individuals to distribute information about the vaccination mandate and to collect documentation for the purpose of ensuring compliance. Due to the federal government’s sovereign immunity, those expenses, too, are unrecoverable,” Larsen wrote.

While the Sixth Circuit judges upheld the district court’s ruling, they changed the scope of the injunction to only prohibit the federal government from enforcing the contractor mandate against the three plaintiff states. It's a subtle difference from the lower court’s ruling, which blocked the mandate from affecting “all covered contracts” in the three states.

The ruling explains that the difference is important, as technically the lower court’s ruling could affect contracts for non-plaintiffs.

“Because an injunction limited to the parties can adequately protect the plaintiffs’ interests while the case is pending disposition on the merits, the district court abused its discretion in extending the preliminary injunction’s protection to non-party contractors in the plaintiff States,” the ruling states.

Larsen was joined on the Sixth Circuit panel by U.S. Circuit Judges Eugene Siler and David McKeague, appointed to the court by George H.W. Bush and George W. Bush, respectively.

The Atlanta-based 11th Circuit issued a ruling in a similar case last August that handed the Biden administration a narrow victory by striking down a nationwide injunction on the law and limiting its scope to the seven plaintiff states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia.

Last month, the Fifth Circuit also ruled against the federal contractor vaccine mandate, finding that the Biden administration had exceeded its authority.

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