562 F.Supp.3d 123
D. Ariz.2022Background
- Plaintiffs: State of Arizona (and AG Mark Brnovich), U.S. Marshals employee Al Reble, and two local unions challenged two Biden vaccination directives: EO 14042 (federal contractors) and EO 14043 (federal employees).
- EO 14042 directed agencies to incorporate Safer Federal Workforce Task Force (SFWTF) contractor vaccine guidance into certain contracts; SFWTF guidance and an OMB "economy and efficiency" determination followed.
- Plaintiffs sought injunctive relief; after amended complaints and briefing the Court held a consolidated preliminary-injunction/merits phase.
- The Court found it lacked jurisdiction to decide Reble’s Employee-Mandate claims (unripe) and the State lacked standing to challenge the Employee Mandate, but had jurisdiction to decide the Contractor-Mandate claims.
- On the merits the Court held the Contractor Mandate exceeded the President’s authority under the Federal Property and Administrative Services Act (the Procurement Act) and enjoined enforcement of the Contractor Mandate in Arizona; Employee-Mandate claims were dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Ripeness for federal-employee plaintiff Reble | Reble faces imminent harm if exemption denied and thus can challenge Employee Mandate now | Exemption proceeding is pending; injury is speculative and claims are unripe | Reble’s claims are unripe; no Article III jurisdiction because harms depend on contingent events |
| State standing to challenge Contractor Mandate | Arizona would suffer direct sovereign and proprietary injuries (contract losses, burdens on state operations) and thus has standing | Federal procurement is a market-participant/regulatory decision; no sovereign injury | Arizona has Article III standing to challenge Contractor Mandate (direct injury); lacks standing to challenge Employee Mandate |
| Presidential authority under the Procurement Act (40 U.S.C. § 121(a)) | Mandate exceeds §121(a); statute authorizes procurement-related policies, not sweeping public-health vaccine mandates | §121(a) permits broad procurement directives tied to economy/efficiency; OMB determination supplies the nexus | Contractor Mandate exceeds the President’s authority under the Procurement Act (no clear nexus to procurement; raises nondelegation and federalism concerns) |
| Procurement Policy Act §1707 notice-and-comment / waiver | Guidance, FAR memorandum, and OMB determination are procurement policies requiring publication and comment | FAR memo and FAQs are non‑binding guidance; OMB invoked §1707(d) waiver as urgent and compelling | FAR memo and FAQs were nonbinding guidance; revised OMB determination satisfied §1707(d) waiver and publication requirement; §1707 procedural objections did not defeat injunction |
| EUA statute (21 U.S.C. §360bbb‑3) and right to refuse EUA vaccine | Statute requires being informed of the option to accept or refuse EUA products; mandates therefore conflict with statutory protections | §360bbb‑3 only imposes information conditions on medical providers and does not create a veto right against mandates | §360bbb‑3 does not create a substantive individual right that invalidates the Contractor Mandate; information requirement satisfied and mandate does not compulsorily nullify choice (employees may seek exemptions or decline employment) |
| Substantive due process (bodily integrity/refuse treatment) | Mandate infringes fundamental liberty interest in bodily integrity and refusal of medical treatment | No fundamental right to refuse vaccination; Jacobson controls; rational-basis review applies | No fundamental right implicated; Jacobson governs—mandate survives only rational-basis review, which it meets; substantive due process claim fails |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary-injunction standard; extraordinary remedy)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (constitutional standing requirements)
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (states may require vaccination; rational-basis framework for public-health mandates)
- NFIB v. Occupational Safety & Health Admin., 142 S. Ct. 661 (2022) (limits on expansive regulatory authority and need for clear congressional authorization in major questions)
- Franklin v. Massachusetts, 505 U.S. 788 (1992) (President is not an "agency" under the APA; limits on APA review of purely presidential action)
- Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) (discussing when government acts as market participant vs. regulator in procurement context)
- Building & Construction Trades Council v. Associated Builders & Contractors (Boston Harbor), 507 U.S. 218 (1993) (distinguishing regulatory acts from market-participant contracting choices)