23 F.4th 585
6th Cir.2022Background:
- President Biden issued Executive Order 14042 directing federal contractors to follow Safer Federal Workforce Task Force Guidance requiring COVID-19 vaccination (with limited exemptions); OMB issued a determination that the Guidance promotes “economy and efficiency.”
- The Guidance is very broad: covers many contractor employees (including some not directly working on contracts), common areas, remote workers, and can apply via contract modifications, renewals, or new contracts.
- Ohio, Kentucky, Tennessee, and two Ohio sheriffs’ offices sued, alleging lack of statutory authority under the Federal Property and Administrative Services Act (the Property Act), APA violations, Competition in Contracting Act conflicts, and federalism/Tenth Amendment concerns.
- The district court preliminarily enjoined enforcement of the contractor mandate across the three states and denied the government’s stay motion; the government appealed and sought a stay from the Sixth Circuit.
- The Sixth Circuit denied the stay: it found plaintiffs likely have proprietary and sovereign/quasi-sovereign standing, concluded the Property Act likely does not authorize a vaccination mandate of this scope, and held the government failed to meet the heavy stay burden.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing—proprietary (states & sheriffs as contractors) | States and sheriffs will lose or be forced to modify federal contracts and thus suffer imminent economic injury | Government: plaintiffs lack a concrete imminent injury without a specific new or modified contract | Held: Court finds proprietary standing plausible (existing contracts threatened; history of contracting and likelihood of future bids sufficient) |
| Standing—parens patriae / quasi-sovereign | States assert quasi-sovereign injuries to public health and state economies from federal intrusion into traditional state prerogatives | Government: Mellon doctrine bars states from suing as parens patriae against the U.S. on behalf of private citizens | Held: Traditional third‑party parens patriae is barred by Mellon, but states plausibly have sovereign/quasi-sovereign standing to vindicate their own public‑health and economic interests |
| Statutory authority under the Property Act (40 U.S.C. §§101,121) | Plaintiffs: Property Act authorizes procurement systems, not a federal vaccination mandate of sweeping public‑health effect | Government: §101 purpose and §121 delegation allow the President to impose measures that promote economy and efficiency, including vaccination to reduce absenteeism | Held: Court likely rejects government’s reading—text, structure, history, and major‑questions/federalism concerns indicate the Act does not authorize this mandate |
| Stay factors (likelihood of success, irreparable harm, balance of equities, public interest) | Plaintiffs: stay would force coerced vaccinations, economic disruption, and federalism injury; public interest favors correct legal result | Government: immediate implementation necessary to avoid absenteeism, productivity loss, and public‑health harms | Held: Government fails to show strong likelihood of success or irreparable harm; harms to states and federalism concerns weigh against a stay; stay denied |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (2009) (articulating four‑factor test for stays pending appeal)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements: injury‑in‑fact, causation, redressability)
- Massachusetts v. Mellon, 262 U.S. 447 (1923) (states may not sue the United States as parens patriae to vindicate private citizens’ interests)
- Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) (states’ quasi‑sovereign interests and when states may sue to protect them)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (imminence of future bidding activity can support standing)
- Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) (major‑questions canon: Congress must clearly authorize agency action of vast economic and political significance)
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (states’ traditional police power to enact public‑health measures, including compulsory vaccination)
- Gov’t of Manitoba v. Bernhardt, 923 F.3d 173 (D.C. Cir. 2019) (discussed re: limits on parens patriae and state suits against federal government)
- AMER. FED. OF LAB. & CONG. OF INDUS. ORGS. v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) (prior cases upholding limited procurement‑related executive directives under the Property Act)