Yesterday, a unanimous Sixth Circuit both affirmed and narrowed a preliminary injunction entered against President Biden’s order that “all federal agencies . . . include in their new contracts a provision obligating contract recipients to require their employees to wear face masks at work and be vaccinated against COVID-19.” Kentucky v. Biden, No. 21-6147 (6th Cir. 1-12-23). The Court agreed that Biden had exceeded his authority under the Federal Property and Administrative Services Act of 1949. The Court found that the Act’s statement of purpose did not authorize, and has never empowered, the government to take any particular action. Further, the prefatory statement focuses on government efficiency, not contractor efficiency. However, the Court narrowed the injunction to enforcement of the order against the plaintiffs – i.e., States of Ohio, Kentucky and Tennessee and two Ohio sheriffs’ offices -- and found that the district court had exceeded its authority in enjoining enforcement of the order against all federal contractors and subcontractors in all three states (who presumably will need to file their own preliminary injunctions if the government does not voluntarily withdraw the order, which has been on hold since it was earlier enjoined in Georgia).
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