As the legal battles over the Biden administrations vaccine mandate for federal contractors continue, I authored an article for Law360 published on December 22, 2021 discussing significant rulings limiting the mandate’s enforcement in matters brought by multiple states.

After the U.S. District Court for the Eastern District of Kentucky ruled on November 30 to prohibit enforcement of the mandate against contractors and subcontractors in Kentucky, Ohio and Tennessee, the U.S. District Court for the Southern District of Georgia issued an injunction on December 7 prohibiting such enforcement nationwide. On December 16, the U.S. District Court for the Western District of Louisiana issued a third injunction prohibiting enforcement of the mandate, which was limited to the plaintiff states.

In addition to detailing the arguments and legal considerations weighed by the court in each case, I offered insight on what contractors can do now as additional cases are heard around the country, particularly as related matters head for January 7 oral arguments at the U.S. Supreme Court (announced shortly after Law360 published my article).

Continue Reading Injunctions May Only Pause the Government Contractor Vaccine Mandate

In an article for Business Weekly Taiwan, I discussed the impact on Taiwan companies amid rising tensions between the United States and China. The U.S. Department of Commerce recently added China-based tech company Hunan Goke Microelectronics to the Entity List, one of the U.S. government lists that impose various levels of trade, travel, asset, and financial restrictions on overseas companies to help protect U.S. national security. Adding China-based companies to the Entity List or another restrictive trade list, often negatively impacts Taiwan companies who rely on trade with China.

As I recommend to Taiwan companies, it’s important to know your customer – it’s important to research fully to know the supply chain and end users of your products. I note that companies in China and anywhere, including the U.S., put a lot of their businesses on the website so you can see the types of activities that they’re engaged in. Company websites are a good starting point for researching companies and exercising due diligence.

Continue Reading Impact on Taiwanese Companies Amid Trade Situation between United States and China

UPDATE: On the evening of December 22, the Supreme Court announced that Justice Kavanaugh has referred the applications for an emergency stay of the OSHA ETS to the full court, those applications have been consolidated, and consideration of those applications has been deferred pending oral argument scheduled for January 7, 2022.

On January 7, the Supreme Court will also hear the oral argument regarding the application by the Department of Justice for a stay of the injunction issued by the District Court for the Western District of Louisiana of the CMS vaccine mandate. That application, which was submitted to Justice Alito, who is responsible for emergency applications from the Fifth Circuit, was also referred to the full Court.  

In addition, on December 22, the District Court for the Southern District of Florida granted Florida’s request for a preliminary injunction of the government contractor mandate. This is the fifth injunction of that mandate, with four of the five courts finding that the president exceeded his authority under the Federal Property and Administrative Services Act. The parties have been given until December 29 to propose a preliminary injunction consistent with the order.

Finally, as of December 23, it does not appear that DOJ has sought an emergency stay of the injunctions of the government contractor vaccine mandate from the Supreme Court.

Continue Reading If the Government Contractor Vaccine Mandate Doesn’t Get You, the OSHA ETS Might

A 2016 Government Accountability Office (GAO) report noted that the Office of Federal Contract Compliance Programs (OFCCP) did not have an official method of validating contractors’ affirmative action plans or programs (AAP) compliance. GAO recommended that OFCCP progress from an “honors” or self-representation system to a mechanism that regularly monitors AAP compliance. In September 2020, OFCCP published a notice seeking comment on the possibility of an annual AAP certification and verification process.

On December 2, 2021, the U.S. Department of Labor (DOL) announced that federal service and supply contractors and subcontractors presently required to create and maintain written AAPs will also be required to certify whether they meet annual AAP requirements. Certification will be through a secure online Contractor Portal developed and monitored by OFCCP. Contractors can also upload their AAPs to the portal during a compliance evaluation. Certifying compliance in the Contractor Portal does not exempt a contractor or subcontractor from compliance evaluations. Contractors and subcontractors that are only construction and not supply and service contractors are not required to certify AAP compliance.

Continue Reading OFCCP’s New Affirmative Action Program Oversight Tool

On December 16, in the challenge filed by Louisiana, Mississippi, and Indiana to the federal contractor vaccine mandate, the Western District of Louisiana (WD of LA) granted the plaintiff’s motion for a preliminary injunction (PI) with respect to “contracts, grants, or any other like agreement by any other name between the Plaintiff States and the national government.”  However, the ruling denied the motion for a PI to the extent it sought to enjoin the application of EO 14042 against contracts between private contractors and the government.

WD of LA Splits from the Other Districts on Key Contractor Vaccine Mandate Issues

Interestingly, unlike the Eastern District of Kentucky (ED of KY) and Southern District of Georgia (SD of GA), the WD of LA concluded that “a reasonably sufficient nexus can exist between EO 14042 and the government’s policy under [the Federal Property and Administrative Services Act] to procure and manage properties and services in an economical and efficient manner.”  Instead, the WD of LA concluded that the EO is unlawful because it conflicts with the Tenth Amendment.

Continue Reading A Third Court Enjoins the Federal Contractor Vaccine Mandate

For nearly two years, we have been reporting on this blog about the Department of Defense’s (DOD) Cybersecurity Maturity Model Certification (CMMC) program. CMMC is a training, certification, and third-party assessment program designed to protect federal contract information (FCI) and controlled unclassified information (CUI) shared by DoD with its contractors and subcontractors through federal acquisition programs.

On November 4, the DOD announced that CMMC 2.0 would replace CMMC 1.0. The announcement was followed by a publication in the Federal Register of a summary of DOD’s CMMC 2.0 plans, which explains that the changes will be implemented through the notice and comment rulemaking process, proposing revisions/additions to titles 32 and 48 of the Code of Federal Regulations.

The decision was driven in large part by the more than 850 public comments submitted to the DoD in response to the CMMC 1.0 interim DFARS rule released on September 29, 2020, focusing on the need to enhance CMMC by doing the following, according to CMMC Frequently Asked Questions:

  1. Reducing costs, particularly for small businesses.
  2. Increasing trust in the CMMC assessment ecosystem.
  3. Clarifying and aligning cybersecurity requirements to other federal requirements and commonly accepted standards.

Continue Reading DOD Scraps CMMC 1.0 for CMMC 2.0

I recently co-authored an article for WorldECR with Scott Jones, a nonresident fellow at The Stimson Center, examining the history and current trajectory of the Entity List, part of the Export Administration Regulations (EAR) administered by the U.S. Bureau of Industry and Security (BIS) to help protect U.S. national security. In the article, we outline the history of the Entity List and discuss the need for a just and transparent removal mechanism.

We state that “since the 2008 change in scope to include national security and foreign policy concerns, the number of parties added to the Entity List has increased dramatically” from its original purpose of preventing the proliferation of weapons of mass destruction.  With the recent technology conflicts between the United States and China, we argue the Entity List has become the most convenient tool in the toolbox to further U.S. national security and foreign policy goals.

Continue Reading History and Trajectory of the Entity List Related to National Security Concerns

On November 10, the U.S. Departments of State, Treasury, and Commerce issued an unusual joint advisory (the “advisory”) on the risk of investing and interacting with certain Cambodian individuals and entities. The advisory is evidence of the United States’ active campaign against corruption; the advisory also continues the recent U.S. practice of employing sanctions and other trade restrictions to fight corruption.

Specific Cambodian Sectors Designated as High Risk

In the advisory, the government identified the following Cambodian sectors as high risk:

  1. The financial, real estate, casino, and infrastructure sectors – deemed high risk because of illicit finance activities and related risks.
  2. The manufacturing and timber sectors of Cambodia – deemed high risk because of trafficking of persons, wildlife, narcotics, and related risks.

The advisory emphasizes that involvement, or potential involvement, of U.S. companies in any of those sectors could result in reputational, economic, and/or legal risk.

Continue Reading U.S. Imposes Restrictions, Issues Warning on Business with Cambodia

On December 6, we noted on this blog post that because the injunction issued by the District Court for the Eastern District of Kentucky on November 30 prohibiting the government from enforcing the government contractor vaccine mandate against contractors and subcontractors in Kentucky, Ohio, and Tennessee had national impact, a nationwide injunction seemed to make sense.

Today, the District Court for the Southern District of Georgia, which held a hearing on a motion for a preliminary injunction on December 3, did just that.

The President Likely Exceeded Statutory Authority

The order granted the motion for a preliminary injunction filed by the plaintiffs – Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia – finding that they “will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act (FPASA) when issuing Executive Order [EO] 14042.”

Continue Reading Georgia District Court Enjoins Government Contractor Vaccine Mandate Nationwide

As we previously reported, on November 30, the District Court for the Eastern District of Kentucky (ED of KY) enjoined the government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” This follows nationwide injunctions of both the OSHA vaccine and testing Emergency Temporary Standard applicable to employers with 100 or more employees and the CMS interim final rule mandating vaccinations applicable to Medicare- and Medicaid-certified providers and suppliers.

As expected, on December 3, the Department of Justice (DOJ) asked the ED of KY for an immediate stay of the injunction and filed a notice of appeal to the Sixth Circuit. The plaintiffs have asked for three business days to respond, and it is unclear when the ED of KY will act on DOJ’s request. But the ED of KY case may be overtaken by other events, as preliminary injunction hearings in additional challenges to the government contractor vaccine mandate occurred on December 3 in two cases and are expected to happen on December 6 and 7 in two others.

Limited or Nationwide Injunction?

In the past few years, several commentators have questioned the conditions, if any, under which district courts may issue nationwide injunctions. While this is a very complex issue that brings into question the rights of the parties in a particular case, those in favor of limiting injunctions to the plaintiffs in the case generally favor having multiple district courts consider an issue so that the legal arguments are better developed before consideration by the appellate courts. Those in favor of nationwide injunctions believe that consistency is favorable, any district court is authorized to enjoin any executive branch action that it determines to be unlawful, and the government’s ability to appeal an injunction provides sufficient protection against improperly issued injunctions.

Continue Reading DOJ Seeks Stay of KY, OH, and TN Injunction; Hearings Go Forward in Other Government Contractor Vaccine Mandate Cases

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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