Today, the United States District Court for the District of Maryland lifted the stay of the E-Verify Federal Contractor lawsuit and announced a briefing schedule for motions and hearings. As previously reported, the U.S. Chamber of Commerce and several other organizations filed a federal lawsuit in December last year, challenging the legality of President Bush’s Executive Order and the FAR (Federal Acquisition Council) regulations requiring federal contractors and sub-contractors to use E-Verify. The lawsuit has been on hold (technical term is “stayed”) for almost six months in order to give the Obama Administration more time to review the rule. In light of the Administration’s recent support of the rule, the Court is now resuming its case schedule as follows:
July 27, 2009: The Government must file their combined opposition to Plaintiffs’ motion for summary judgment and cross-motion for summary judgment;
August 3, 2009: Plaintiffs must file their combined opposition to the Government’s cross-motion for summary judgment and reply brief;
August 10, 2009: The Government must file its reply brief;
August 28, 2009: The Court will hold a hearing on any pending motions.
Aside from this legal challenge, the E-Verify Federal Contractor Rule could also be impacted by the DHS 2010 appropriations bill (H.R. 2892) which was passed by the Senate last week. An amendment inserted by Senator Sessions mandates that all federal agencies require contractors to use E-Verify as a condition of doing business with the government. Unlike the regulation, the appropriations bill does not include any exemptions or conditions ($100,000 value, COTS exemption, etc), so presumably it could apply to all contractors regardless of the contract size, type, or duration.
The bill now heads to a joint conference where leaders will attempt to reconcile differences between the House and Senate versions of the bill. If these E-Verify provisions remain, it’s possible that the E-Verify Federal Contractor Rule would need to be revised or revoked in favor of new regulations.