On Motion for Stay.
United States District Court for the Eastern District of Kentucky at Frankfort.
3:21-cv-00055—Gregory F. Van Tatenhove, District Judge.
Decided and Filed: January 5, 2022
Before: SUHRHEINRICH, COLE, and BUSH, Circuit Judges.
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OPINION
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JOHN K. BUSH, Circuit Judge. In 1949, Congress passed a statute called the Federal
Property and Administrative Services Act (“Property Act”) to facilitate the “economical and
efficient” purchase of goods and services on behalf of the federal government. See 40 U.S.C.
§ 101. The Property Act serves an uncontroversial purpose; who doesn’t want the government to
be more “economical and efficient”? Yet that laudable legislative-branch prescription, in place
for the last seventy years, has recently been re-envisioned by the executive. In November 2021,
the Safer Federal Workforce Task Force, under the supposed auspices of the Act, issued a
“Guidance” mandating that the employees of federal contractors in “covered contract[s]” with
the federal government become fully vaccinated against COVID-19.1 That directive sweeps in at
least one-fifth of our nation’s workforce, possibly more. And so an act establishing an efficient
“system of property management,” S. Rep. 1413 at 1 (1948), was transformed into a novel font
of federal authority to regulate the private health decisions of millions of Americans.
In response, three states (Ohio, Kentucky, and Tennessee) and two Ohio sheriffs’ offices
filed suit. They collectively alleged that nothing in the Property Act authorizes the contractor
mandate, that the contractor mandate violates various other federal statutes, and that its intrusion
upon traditional state prerogatives raises serious constitutional concerns under federalism
principles and the Tenth Amendment. The district court agreed. It enjoined enforcement of the
contractor mandate throughout Ohio, Kentucky, and Tennessee. It also denied the subsequent
motion of the federal-government defendants2 to stay the injunction pending appeal. The
government now comes to us with the same request. But because the government has
established none of the showings required to obtain a stay, we DENY such relief. |