9th Circuit seeks briefs on states’ waiver in federal contractor minimum wage case

Although the U.S. 9th Circuit Court of Appeals panel seemed skeptical of the Department of Labor’s (DOL) position in oral argument that the federal contractor minimum wage would promote economy and efficiency as required by the Procurement Act, the court asked the DOL and the plaintiff states of Nebraska, Idaho, Indiana, and South Carolina to file additional briefs tackling whether the states waived one of their arguments while challenging an increased federal contractor minimum wage.

The panel is asking the parties to tackle whether the Procurement Act limits the president’s authority to issue “policies necessary to carry out ‘substantive’ provisions of the Procurement Act as opposed to its statement of purpose and whether those provisions sustain [President Joe] Biden’s minimum wage executive order.” The court also asked if the DOL had “waived or forfeited reliance on any provision other than the Procurement Act’s statement of purpose.” This is one of three cases currently in the courts of appeals challenging President Biden’s federal contractor minimum wage Executive Order.

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