571 F.Supp.3d 715
E.D. Ky.2021Background
- President Biden issued Executive Order 14042 directing the Safer Federal Workforce Task Force to require “adequate COVID‑19 safeguards” for federal contractors; the Task Force issued Guidance requiring covered contractors’ employees be vaccinated.
- The FAR Council issued interim Guidance (a suggested deviation clause) to help agencies implement the mandate pending formal FAR amendments; the OMB Director issued a Determination that compliance would promote economy and efficiency in federal contracting and later revised that Determination.
- Plaintiffs (Commonwealth of Kentucky, other state entities, and two sheriffs) sued seeking a preliminary injunction challenging the contractor vaccine requirement as beyond statutory and constitutional authority and procedurally defective.
- The court found plaintiffs had standing based on states’ special solicitude and the realistic prospect of future contracting impacts and coercive pressure on current contractors.
- The court concluded the FAR Council Guidance was not final agency action but held that the President exceeded his authority under the Federal Property and Administrative Services Act (FPASA); although agencies’ administrative procedures were largely remedied, constitutional concerns (nondelegation and federalism) supported relief.
- The court granted a preliminary injunction enjoining enforcement of the contractor vaccine mandate as to Kentucky, Ohio, Tennessee, and the named plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | States and plaintiffs will suffer concrete, imminent harms from lost contracting and coercive contract modifications | No concrete injury shown; current contracts unaffected and FAR memo is nonbinding | Court: Plaintiffs have standing (special solicitude for states; realistic future/pressure harms) |
| Presidential authority under FPASA | FPASA does not authorize a sweeping public‑health vaccine mandate for all federal contractors; exceeds statute and raises nondelegation/federalism concerns | FPASA grants broad procurement authority; mandate promotes economy & efficiency (reduces absenteeism, costs) | Court: President exceeded FPASA; close nexus lacking; nondelegation and Tenth Amendment/federalism concerns support injunction |
| APA / Administrative procedure & reviewability | FAR Guidance and OMB Determination violated 41 U.S.C. §1707 and APA notice-and-comment; actions arbitrary and capricious | FAR Guidance is nonfinal/nonreviewable guidance; OMB revised Determination cured procedural defects | Court: FAR Guidance not final agency action (not reviewable); OMB’s revised Determination made procedural deficiencies largely moot and was reviewable; plaintiffs’ APA claims largely fail on current record |
| Arbitrary-and-capricious / merits & injunction factors | Agency actions lacked reasoned explanation, ignored costs and alternatives, and were pretextual | Agencies gave rational economy-and-efficiency justifications; predictive judgments entitled to deference | Court: Agency explanations (especially in the revised OMB Determination) were within reason; but plaintiffs are likely to succeed on the core statutory/constitutional claim, and irreparable harm/public‑interest factors favor preliminary relief |
| Scope of relief | Nationwide relief not sought by plaintiffs; limited relief suffices for states and named parties | Government argued broader enforcement nationwide | Court: Injunction limited to Kentucky, Ohio, Tennessee and the additional sheriff plaintiffs (parties before the court) |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (standing principles for federal suits)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (injury‑in‑fact must be particularized and concrete)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (standing to challenge future contracting opportunities)
- AFL‑CIO v. Kahn, 618 F.2d 784 (D.C. Cir.) (scope and purpose of FPASA in procurement context)
- Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir.) (limits on FPASA and reviewability of presidential delegation)
- A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (nondelegation doctrine history)
- Panama Refining Co. v. Ryan, 293 U.S. 388 (nondelegation doctrine history)
- Fed. Commc’ns Comm’n v. Prometheus Radio Project, 141 S. Ct. 1150 (APA arbitrary‑and‑capricious review standard)
- Perkins v. Lukens Steel Co., 310 U.S. 113 (federal government may set terms on with whom it will contract)
- Howe v. City of Akron, 801 F.3d 718 (scope of injunctions limited to proven unlawful conduct)