575 F.Supp.3d 680
W.D. La.2021Background
- President Biden issued EO 14042 directing the Safer Federal Workforce Task Force to set mandatory COVID-19 "safeguards" for federal contractors; Task Force Guidance required contractor employees be fully vaccinated by Jan. 18, 2022 (originally Dec. 8, 2021).
- OMB issued a determination that the Guidance would "promote economy and efficiency" in federal contracting; the FAR Council issued a memo encouraging agencies to insert a deviation clause in contracts and to apply the Guidance broadly, including to existing contracts and (de facto) grants.
- States of Louisiana, Mississippi, and Indiana sued, challenging EO 14042, the OMB determination, and the FAR memo as beyond authority under the Federal Property and Administrative Services Act (FPASA) and procedurally defective under the Administrative Procedure Act (APA)/41 U.S.C. § 1707.
- Evidence at the preliminary-injunction hearing: NIH sought to add the FAR deviation clause to an existing University of Louisiana at Lafayette grant; a state employee (Megan Breaux) faced termination for refusing vaccination after her religious exemption was denied.
- The court found plaintiffs had Article III standing (and did not need to resolve parens patriae definitively), concluded the FAR memo and OMB action were reviewable and procedurally defective, and granted a preliminary injunction limited to contracts, grants, or similar agreements between the three Plaintiff States (not a national injunction or relief for private contractors).
- The court denied a request to stay issuance of the injunction but stayed further proceedings toward a permanent injunction pending appellate action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Parens patriae standing | States may sue to protect quasi-sovereign interests of citizens harmed by federal overreach | Mellon and Snapp bar states from parens patriae suits against the federal government | Court did not decide Mellon exception; found parens patriae unnecessary because Article III standing established |
| Article III standing | States face imminent Hobson's choice: comply (lose employees) or refuse (lose contracts); injury is concrete and traceable | EO 14042 and OMB determination apply only to new contracts; grants and existing contracts are excluded, so no imminent injury | Court held states have Article III standing based on existing federal funding/contract relationships and coercive application of FAR memo to existing agreements |
| Authority under FPASA / Tenth Amendment | EO 14042 exceeds FPASA scope by using procurement power to impose public-health policy invading state police powers | Executive can adopt secondary procurement policies under FPASA tied to economy and efficiency; vaccination mandate is related to procurement efficiency | Court held EO 14042 rests on public-health aims and intrudes on state police powers; FPASA nexus insufficient in light of Tenth Amendment concerns |
| APA / 41 U.S.C. § 1707 and FAR memo finality | OMB determination and FAR memo are final agency actions subject to §1707; they circumvent APA comment protections and extend EO 14042 beyond its terms (e.g., to grants/existing contracts) | FAR memo is only an "initial steps" implementation and not final agency action; pandemic justifies expedited procedures under §1707(d) | Court held FAR memo and OMB action are reviewable, that expedited procedures were not justified, and that the FAR memo unlawfully exceeds EO 14042's limits; preliminary injunction issued as to Plaintiff States' agreements |
Key Cases Cited
- Massachusetts v. EPA, 549 U.S. 497 (2007) (recognized "special solicitude" for state standing analysis)
- Commonwealth of Massachusetts v. Mellon, 262 U.S. 447 (1923) (historical bar on states suing the federal government as parens patriae)
- Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592 (1982) (parens patriae permits suits against private defendants but reaffirmed Mellon re federal government)
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (states' police power in public-health matters)
- Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (standing to challenge future contracting opportunities requires adequate showing of likely bidding)
- BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021) (stay of OSHA vaccine mandate; public-interest and separation-of-powers concerns)
- Texas v. EPA, 829 F.3d 405 (5th Cir. 2016) (irreparable harm includes nonrecoverable compliance costs)
- Am. Fed'n of Lab. & Cong. of Indus. Orgs. v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) (upholding secondary procurement policies where closely related to procurement objectives)