No. 4:21 CV 1300 DDN
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION
December 20, 2021
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff-States’ motion for preliminary injunction, pursuant to
For the following reasons, plaintiffs’ motion for preliminary injunction is sustained.
BACKGROUND
On January 20, 2021, President Biden (“the President“) signed Executive Order 13,991, 86 Fed. Reg. 7045, which established the Safer Federal Workforce Task Force (“Task Force“). The Task Force is charged with providing “ongoing guidance to heads of agencies on the operation of the Federal Government, the safety of its employees, and the continuity of Government functions during the COVID–19 pandemic.” 86 Fed. Reg. at 7046 (§ 4(a)). On September 9, 2021, the President announced that he had signed Executive Order 14,042 (“EO 14,042“), requiring the Task Force to issue Guidance regarding adequate COVID-19 safeguards.
On September 24, 2021, the Task Force issued Guidance implementing EO 14,042. The Guidance required that federal contractors
To implement EO 14,042 and the Task Force‘s Guidance, as approved by OMB, on September 30, 2021, the Federal Acquisition Regulatory Council (“FAR Council“) issued a memorandum to “agencies that award contracts under the Federal Acquisition Regulation with initial direction for the incorporation of a clause into their solicitations and contracts to implement” the Guidance. This included allowing a sample clause that may be included in contracts via a deviation.1
On November 10, 2021, the Task Force updated the Guidance, changing the date contractors’ employees were required to be fully vaccinated from December 8, 2021, to January 18, 2022. Also on November 10, the Acting Director of OMB filed for publication in the Federal Register her determination that the updated Guidance “will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors.” Federal agеncies have issued agency-specific class deviations directing procurement officers to include the COVID-19 safety clause in contracts until the FAR Council issues its final government-wide regulation.
Plaintiff-States maintain significant contracts with the federal government. According to the System for Award Management, in calendar 2020, federal contracts
performed in plaintiff-States were worth billions of dollars, ranging from $386 million in Wyoming to $16 billion in Missouri. (Doc. 27-1 at 98-99.)
On October 29, 2021, plaintiffs – the States of Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming – commenced this judicial action to challenge the mandate. (Doc. 1.) Plaintiffs allege in their complaint that the mandate violates the U.S. Constitution, the Administrative Procedures Act (“APA“), and federal procurement law.2 On November 4, plaintiffs moved for preliminary injunction. (Doc. 8.) Defendants filed their response in opposition on November 18, and plaintiffs filed their reply on November 22. (Docs. 20, 23.) The parties also filed supplemental briеfing on December 10. (Docs. 28, 29.)
RELEVANT LEGAL PRINCIPLES
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). In determining whether to issue a preliminary injunction, the Court must consider four factors: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that
None of the four factors “is determinative,” and each must be examined “in the context of the relative injuries to the parties and the public.” Id. at 113. District courts have discretion to apply the Dataphase test in a pragmatic, “flexible” way. Richland/Wilkin Joint Powers Auth. v. United States Army Corp of Eng‘rs, 826 F.3d 1030, 1036 (8th Cir. 2016) (citations omitted). Whether to grant a stay or injunction “militates against a wooden application” of probabilities, because “[a]t base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase Sys., 640 F.2d at 113.
DISCUSSION
A. Standing
In thеir supplemental briefing, defendants raised the issue of standing. They argue that plaintiffs lack standing to bring parens patriae claims against the federal government for any claim and that they cannot claim irreparable injury for any purported harms to their citizens. (Doc. 29 at 15.) They also contend that plaintiffs have failed to show standing based on their status as federal contractors. (Id. at 16.) Lastly, they argue that plaintiffs’ claim of direct sovereign injuries cannot create standing. (Id. at 19.)
Standing is a threshold inquiry in every federal case that dеtermines whether the court has the power to decide the case. See, e.g., Warth v. Seldin, 422 U.S. 490, 498 (1975). “To satisfy the ‘case’ or ‘controversy requirement’ of
The Court concludes that plaintiffs do not have standing with regard to their quasi-sovereign parens patriae interests. Despite plaintiffs’ argument that they seek the federal
government‘s compliance with federal statutes and the Constitution, their claims are best understood as challenges to the operation of the federal vaccine mandate. Plaintiffs do not have standing to make such a claim. See Gov‘t of Manitoba v. Bernhardt, 923 F.3d 173, 176 (D.C. Cir. 2019) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rice, ex rel., Barez, 458 U.S. 592, 610 n.16 (1982)); Massachusetts v. EPA, 549 U.S. 497, 520 n.17 (2007).
Missouri, Alaska, Arkansas, and Montana have alleged sufficient injuries to establish standing for their sovereign interest claims. Each state alleges that the contractor mandate ostensibly preempts state statutes regarding vaccine mandates. (Doc. 9 at 38-39.) Preemption of a validly enacted state statute is an injury in fact, such that the state will not be able to enforce the statute,3 and the injury is fairly traceable to EO 14,042. The injury is redressable because EO 14,042 does not preempt state statutes if it is not enforced.
In support of their motion for preliminary injunction, plaintiffs submitted ten declarations from state officials in Missouri, Iowa, New Hampshire, North Dakota, Wyoming, Alaska, and Nebraska. (Docs. 9-6 through 9-15.) Defendants argue that all but the Wyoming declaration fail to provide evidence sufficient to show standing. As defendants argue, several of the declarations provide the total number and/or value of federal contracts but fail to identify contracts with sufficient specificity to establish that they are subject to EO 14,042. (Docs. 9-6, 9-8, 9-9, 9-12, 9-13, 9-15.)
Defendants concede that Wyoming has standing with respect to its status as a federal contractor. (Doc. 29 at 19; Doc. 9-11.) The Court also concludes that Iowa has standing as a federal contractor to challenge the mandate. The United Statеs Department of Energy (“DOE“) made a unilateral modification to an Iowa State University contract pursuant to agency-specific authority. (Doc. 29 at 18; Doc. 9-7 at ¶ 6.) Because the agency‘s authority did not depend on EO 14,042, defendants contend that the modification is not “fairly traceable” to the EO and cannot confer standing. (Doc. 29 at 18-19 n.9.) The DOE order,
though, states as its purpose: “To ensure the continued operation of DOE sites and facilities under health and safety emergencies as designated by the President and implement Executive Order 14,042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.” U.S. DEPT. OF ENERGY, DOE O 350.5, COVID SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS (2021) (italics in original). The text of the order shows that it was issued to implement the challenged EO, so the modification is fairly traceable to the challenged conduct.
Missouri also has standing as a federal contractor. It identifies three contracts between the federal government and its Department of Health and Senior Services that would be subject to EO 14,042. (Doc. 9-14.) When a claim involves a chаllenge to a future contracting opportunity, the pertinent question is whether plaintiffs have “made an adequate showing that sometime in the relatively near future [they] will bid on another Government contract.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995). The declaration states that at least 24 employees receive all or part of their salaries under one federal contract, and at least 22 employees receive all or part of their salaries under another. (Doc. 9-14.) Although the declaration does not provide the date of renewal,
The Court concludes that at least three states, Wyoming, Iowa, and Missouri, have standing as federal contractors to challenge the mandate. Because Missouri has standing with regard to both sovereign interests and federal contractor status, its standing is sufficient to permit review. Massachusetts v. EPA, 549 U.S. at 518.
B. Likelihood of Success on the Merits
In support of their motion for preliminary injunction, plaintiffs arguе that the contractor vaccine mandate (1) exceeds the President‘s statutory authority under the Federal Property and Administrative Services Act (FPASA); and (2) is unconstitutional
because it exceeds the limits of Congress‘s enumerated powers and infringes on traditional areas of state authority. (Doc. 9 at 15-16.)4
1. Authority Under the FPASA
Plaintiffs argue that the federal contractor vaccine mandate is inconsistent with the FPASA‘s purpose and outside of its scope. They contend that there is no nexus between the mandate and likely sаvings to the government, that the mandate impermissibly delegates power to OMB and the Task Force, and that rules of statutory construction establish that the FPASA does not authorize the mandate. (Doc. 9 at 18-24.) In response, defendants argue that Congress authorized the President to direct federal procurement, that EO 14,042 satisfied the “lenient” nexus standard, and that the President can delegate his policymaking authority to the OMB director. (Doc. 20 at 10-17.)
The purpose of the FPASA “is to provide the Federal Government with an еconomical and efficient system” for federal procurement, including contracting.
Through the FPASA, Congress granted to the president a broad delegation of power that presidents have used to promulgate a host of executive orders. See, e.g., UAW-Labor Employment and Training Corp. v. Chao, 325 F.3d 360, 366 (2003) (holding that FPASA authorized the president to require contractors to post notices at all facilities informing
employees of certain rights); Kahn at 793 (holding that FPASA authorized the president to require contractors to comply with price and wage controls); Albuquerque v. U.S. Dept. of Interior, 379 F.3d 901, 905 (10th Cir. 2004) (holding that FPASA authorized executive order setting out priorities “for meeting Federal space needs in urban areas“). For decades, “the most prominent use of the President‘s authority under the
The FPASA “does vest broad discretion in the President.” Chamber of Commerce of the United States v. Reich, 74 F.3d 1322, 1330 (D.C. Cir. 1996). However, the President‘s powers under the Act are not “a blank check to fill at his will.” Reich at 1330 (quoting Kahn at 793). “The procurement power must be exercised consistently with the structure and purposes of the statute that delegates that power.” Id. at 1330-31. Any order based on the President‘s FPASA authority must be based on a “sufficiently close nexus” to “the values of ‘economy’ and ‘efficiency.‘” Kahn at 792 (quoting
There is no dispute in this case that the FPASA authorizes the President to direct federal procurement. Rather, plaintiffs argue that the vaccine mandate exceeds the President‘s statutory authority under the FPASA. The Court concludes that plaintiffs are likely to succeed on this issue.
On the record currently before the Court, plaintiffs are likely to succeed on the issue of whether there is a sufficiently close nexus between efficiency and economy in procurement and the vaccination mandate. Defendants argue that EO 14,042 and its implementing guidance sufficiently establish the nexus by stating that the mandate “will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the Federal Government.” EO 14,042 § 1. (Doc. 20 at 14.) However, if the statement in EO 14,042 establishes a sufficient nexus, then the President would be able to mandate virtually any public health measure that would result in a healthier contractor workforce. The Court concludes plaintiffs are likely to succeed on their argument that such an interpretation of the President‘s powers under the FPASA is not consistent with the structure and purposes of the statute.
Defendants assert that “[p]ast [presidential] practice does not, by itself, create power, but ‘long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent.‘” (Doc. 20 at 12, quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981).) As discussed above, past presidential uses of power under the FPASA include requiring contractors to post notices of certain rights; requiring contractors to comply with price and wage controls; setting out priorities for selecting office space in urban areas; and requiring contractors to comply with certain nondiscrimination provisions. Chao at 366; Kahn at 793; Albuquerque v. U.S. at 905; Kahn at 790. The mandatе at issue in this case diverges, both in scope and in kind, from the past practice which defendants argue Congress implicitly endorsed.
First, the Task Force Guidance defines “covered contractor employee” as “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace.” (Doc. 27-1 at 30-31.) “This includes employees of covered contraсtors who are not themselves working on or in connection with a covered contract.” (Id. at 31.)
Second, the vaccine mandate is not analogous to past presidential uses of FPASA power. As the parties stipulated in their joint statement of material facts, the FPASA has never been used to require contractors to ensure that their employees were vaccinated against any disease. (Doc. 27 at ¶ 18.) The uses of presidential power
2. Congress‘s Enumerated Powers and Authority of the States
Plaintiffs argue that the federal contractor vаccine mandate exceeds Congress‘s enumerated powers and unconstitutionally infringes on the authority of the States. They contend that the mandate usurps power belonging to the States and that the mandate is not justified by the Spending Clause, Const. Art. I, § 8, cl. 1. (Doc. 9 at 33-37.) Defendants
respond that the mandate was a valid exercise of the President‘s authority under the FPASA, which was a valid exercise of Congress‘s power under the Spending Clause. They further argue that the mandate does not commandeer state officials or violate the Spending Clause or nondelegation doctrine. (Doc. 20 at 26-35.)
As analyzed above, the President did not have authority to mandate vaccination under the FPASA. Therefore, the mandate cannot be regarded as a valid exercise of the President‘s authority under the FPASA, as granted to the President by Congress‘s power under the Spending Clause.
Plaintiffs argue that the mandate fails to “unambiguously” establish the contract terms and that the mandate is not “related to the federal interest in particular national projects or programs,” citing Pennhurst State School & Hospital v. Halderman and Van Wyhe v. Reisch. (Doc. 9 at 35); 451 U.S. 1, 17 (1981); 581 F.3d 639, 650 (8th Cir. 2009). Defendants argue that adopting plaintiffs’ position would make imprecisions in federal procurement contracts matters of constitutional magnitude. (Doc. 20 at 31.)
Plaintiffs cite no authority for the proposition that the Pennhurst or Van Wyhe standards apply to federal contracts. As defendants point out, “when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.” Nat‘l Endowment for the Arts v. Finley, 524 U.S. 569, 589 (1998). The Court concludes that plaintiffs are not likely to succeed оn the issue of whether the mandate violates the Spending Clause.
The
C. Threat of Irreparable Harm
The Court must next determine whether plaintiffs have shown that they are “likely to suffer irreparable harm in the absence of preliminary relief.” Benisek v. Lamone, 138 S. Ct. 1942, 1944 (2018) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Plaintiffs must show more than a
Plaintiffs allege irreparable harm to their sovereign, quasi-sovereign, and proprietary interests. Plaintiffs argue that the mandate is an attempt by the President to supersede and preempt any State policies that differ from federal policies. (Doc. 9 at 37.) They also contend that they face injuries to their proprietary interests in the form of compliance costs and economic disruption due to resignations. (Doc. 9 at 40-41.)
Defendants argue that plaintiffs have not alleged irreparable harm to their position as federal contractors, and their declarations supporting the claim of harm to contractors are insufficient. (Doc. 20 at 35.) Defendants also contend that the mandate preempts conflicting state laws, so there is no harm to plaintiffs’ sovereign interests. (Id. at 38.)
Because the Court has found that plaintiffs are not likely to succeed on their claim of Spending Clause or
In support of their claim of irreparable injury to proprietary interests, plaintiffs submitted declarations from officials in the States that describe the extent of their federal contracts and the likely effect that the mandate will have on their operations. (Doсs. 9-6 through 9-15.) Plaintiffs also offer a survey wherein 72 percent of respondents indicated that they would give up their jobs rather than comply with a vaccine mandate. Kaiser Family Foundation Survey (Oct. 28, 2021), https://www.kff.org/coronavirus-covid-19/press-release/1-in-4-workers-say-their-employer-required-them-to-get-a-covid-19-vaccine-up-since-june-5-of-unvaccinated-adults-say-they-left-a-job-due-to-a-vaccine-requirement/. Even if the number of unvaccinated workers that resign rather than comply
with the mandate is less than 72 percent, the survey indicates that it is likely that federal contractors subject to the mandate will face significant disruption due to resignations.
In conceding that Wyoming has standing to challenge the mandate, defendants assert that Wyoming cannot claim irreparable injury because it may seek compensation under the Contract Disputes Act,
D. Balance of Harms and Public Interest
Lastly, the Court must determine whether plaintiffs have shown thаt the “balance of equities tips in [their] favor” and that “an injunction is in the public interest.” Winter, 555 U.S. at 20. The Court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Id. at 24. When the party
Plaintiffs argue that the public interest favors an injunction because the mandate implicates important principles of federalism. (Doc. 9 аt 42.) Defendants contend that an injunction would hamper the efficiency of federal contractors and harm the federal government‘s efforts to slow the spread of COVID-19. (Doc. 20 at 40.)
“It is indisputable that the public has a strong interest in combatting the spread of” COVID-19. Ala. Ass‘n of Realtors, 141 S. Ct. 2485, 2490 (2021). However, the government may not “act unlawfully even in pursuit of desirable ends.” Id. (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 585-86 (1952)). The Court recognizes that the world is entering the third year of the COVID-19 pandemic and that
slowing the spread of the virus is critical. Still, there is no public interest in the enforcement of an unlawful action. League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). It will not harm the federal government to maintain the status quo while the courts decide the issues of the President‘s authority and the implications for federalism. The Court concludes that, on balance, consideration of the harms and the public interest weigh in favor of a preliminary injunction.
E. Scope of Injunction
“Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.” Dep‘t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (Gorsuch, J., concurring). Only the injuries alleged by the plaintiff-States are properly before the Court. Therefore, the Court‘s injunction applies to plaintiff-States: Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that plaintiffs’ motion for a preliminary injunction (Doc. 8) is sustained. Defendants are enjoined from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.
IT IS FURTHER ORDERED that plaintiffs’ motion to expedite preliminary injunction briefing (Doc. 10) is denied as moot.
Signed on December 20, 2021.
/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
APPENDIX
Claims considered in sustaining the motion for preliminary injunction
Count 1: Violation of the Federal Property and Administrative Services Act: plaintiffs likely to succeed on the merits
Count 2: Violation of the Procurement Policy Act: not determined
Count 3: Unlawful Usurpation of the States’ Police Powers: plaintiffs not likely to succeed on the merits
Count 4: Violation of the Anti-Commandeering Doctrine: plaintiffs not likely to succeed on the merits
Count 5: Procedural Violation of the APA: not determined
Count 6: Substantive Violation of the APA: not determined
Count 8: APA Violations – Agency Action that is not in Accordance with Law and is in Excess of Authority: not determined
Count 9: APA and Statutory Violations – Arbitrary and Capricious Agency Action and Violation of Notice-and-Comment Requirements: not determined
Count 10: Separation of Powers: plaintiffs not likely to succeed on the merits
Count 11: Violation of the Tenth Amendment and Federalism: plaintiffs not likely to succeed on the merits
Count 12: Unconstitutional Exercise of the Spending Power: plaintiffs not likely to succeed on the merits