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Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 036 Att 0
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A memorandum and order of a United States magistrate judge in State of Missouri, et al. v. Joseph R. Biden, No. 4:21 CV 1300 DDN, in the U.S. District Court for the Eastern District of Missouri, entered December 20, 2021 as Doc. 36. It sustains the plaintiff-States' motion for preliminary injunction at Doc. 8 and enjoins enforcement of the COVID-19 vaccine mandate for federal contractors and subcontractors in the ten plaintiff States. It recounts Executive Order 13,991, 86 Fed. Reg. 7045, which established the Safer Federal Workforce Task Force, and Guidance of September 24, 2021 updated on November 10, 2021 to move the vaccination date from December 8, 2021 to January 18, 2022. The court finds the States lack standing on their quasi-sovereign claims but holds that Wyoming, Iowa and Missouri have standing as federal contractors.
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No. 4:21-cv-01300-DDN · Doc. 36 · Docket on CourtListener
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Case: 4:21-cv-01300-DDN Doc. #: 36 Filed: 12/20/21 Page: 1 of 14 PageID #: 1257
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STATE OF MISSOURI, et al., )
)
Plaintiffs, )
)
v. )
) No. 4:21 CV 1300 DDN
JOSEPH R. BIDEN, in his official )
Capacity as President of the United )
States, et al., )
)
Defendants. )
)
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff-States’ motion for preliminary
injunction, pursuant to Federal Rule of Civil Procedure 65, to enjoin the enforcement of
the COVID-19 vaccine mandate for certain federal contractors and subcontractors. (Doc.
8.) The parties have consented to the exercise of plenary authority by the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
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.
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On September 24, 2021, the Task Force issued Guidance implementing EO 14,042.
The Guidance required that federal contractors ensure that their covered employees were
vaccinated against COVID-19, subject to legal accommodations; in addition, the Guidance
required masking and physical distancing in covered contractor workplaces. Also on
September 24, the Acting Office of Management and Budget (“OMB”) Director published
in the Federal Register her determination that the Task Force Guidance will improve
economy and efficiency.
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 agencies 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
1
A federal government contract deviation has been described thus: “Where a government
contract is awarded under competitive bidding, deviations from advertised specifications
may be waived by the contracting officer, provided that the deviations do not go to the
substance of the bid or work an injustice to other bidders. A substantial deviation is defined
as one which affects either the price, quantity, or quality of the article offered.” Monument
Realty LLC v. Washington Metropolitan Area Transit Authority, 540 F. Supp.2d 66, 78
(D.D.C. 2008) (quotation marks and citations omitted).
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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 briefing 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 granting the injunction will inflict on other parties litigant; (3) the probability
that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc.
v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981).
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.
2
Plaintiff-States’ claims are listed in the Appendix to this Memorandum and Order.
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DISCUSSION
A. Standing
In their 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 determines 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 Article III, which is the ‘irreducible
constitutional minimum’ of standing, a plaintiff must, generally speaking, demonstrate that
he has suffered an ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the
defendant, and that the injury will likely be redressed by a favorable decision.” Bennett v.
Spear, 520 U.S. 154, 162 (1997) (citations omitted). Plaintiffs’ injury-in-fact must be both
particularized and concrete. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016) (citing
Friends of the Earth, Inc. v. Laidlaw Env’t. Servs. (TOC), Inc., 528 U.S. 167, 180–81
(2000)). “For an injury to be particularized, it must affect the plaintiff in a personal and
individual way.” Id. at 1548 (internal quotation marks omitted). Further, a “concrete”
injury is a de facto injury that actually exists. Id. Finally, “a plaintiff must also establish,
as a prudential matter, that he or she is the proper proponent of the rights on which the
action is based.” Haskell v. Washington Twp., 864 F.2d 1266, 1275 (6th Cir. 1988)
(citations omitted). “[W]here one plaintiff establishes standing to sue, the standing of
other plaintiffs is immaterial.” Nat’l Wildlife Fed’n v. Agric. Stabilization and
Conservation Serv., 955 F.2d 1199, 1203 (8th Cir. 1992) (quoting Bowen v. Kendrick, 487
U.S. 589, 620 n.15 (1988)).
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
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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 States 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,
3
Defendants’ challenge to plaintiffs’ sovereign interests standing merges the standing and
preliminary injunction analyses. (Doc. 29 at 19.) While plaintiffs’ claim of sovereign
injuries may be insufficient to establish irreparable injury, it is sufficient to establish injury
in fact.
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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 14042, 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 challenge 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, given its
reliance on the contracts to pay its employees’ salaries, it is likely that Missouri will
continue to bid on federal contracts.
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 argue 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
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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 savings 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
economical and efficient system” for federal procurement, including contracting. 40
U.S.C. § 101. It gives the President the authority to “proscribe policies and directives that
the President considers necessary to carry out” the Act. 40 U.S.C. § 121(a). The FPASA
“was designed to centralize Government property management and to introduce into the
public procurement process the same flexibility that characterizes such transactions in the
private sector.” AFL-CIO v. Kahn, 618 F.2d 784, 787 (D.C. Cir. 1979) (en banc).
“‘Economy’ and ‘efficiency’ are not narrow terms; they encompass those factors like price,
quality, suitability, and availability of goods or services that are involved in all acquisition
decisions.” Id. at 789.
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
4
Upon agreement by the parties during the status conference on November 24, 2021, the
Court defers consideration of plaintiffs’ APA claims. The FAR Council is currently in the
process of promulgating a regulation through notice-and-comment rulemaking. The
deferral will allow defendants to prepare an administrative record for review by the Court.
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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 FPASA [was] a series of
antidiscrimination requirements for Government contractors.” Kahn, 618 F.2d at 790.
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 40 U.S.C. § 471
(1976) (now codified as amended at 40 U.S.C. § 101).
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.
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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 mandate 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 contractors 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 under the FPASA
cited above relate to the interactions between contractors and their employees in the
workplace, e.g. notification of employee rights, wage controls, and nondiscrimination. The
vaccine mandate would reach beyond the workplace and into the realm of public health.
The Court concludes that plaintiffs are likely to succeed on the issue of whether the
mandate exceeds the scope of the power granted to the President by the FPASA.
2. Congress’s Enumerated Powers and Authority of the States
Plaintiffs argue that the federal contractor vaccine 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
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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 on the issue of whether the
mandate violates the Spending Clause.
The Tenth Amendment “restrains the power of Congress, but this limit is not derived
from the text of the Tenth Amendment itself, which . . . is essentially a tautology.” New
York v. United States, 505 U.S. 144, 156-57 (1992). Rather, it “confirms that the power of
the Federal Government is subject to limits that may, in a given instance, reserve power to
the States.” Id. at 157. Because the Court has concluded that the mandate likely does not
violate the Spending Clause, one of Congress’s enumerated powers, it also concludes that
plaintiffs are not likely to succeed on their claim of Tenth Amendment violation.
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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 mere “possibility,” but they need not show a
certainty; rather, they need to demonstrate “irreparable injury is likely in the absence of an
injunction.” Winter, 555 U.S. at 22.
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 Tenth Amendment violation, they are not likely to suffer irreparable
harm to their sovereign interests.
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. (Docs. 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
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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, 28 U.S.C. § 1491. (Doc. 29 at 19.) If a contractor, such
as Wyoming, were to challenge the procurement regulation as suggested by defendants,
the court may award declaratory or injunctive relief, but “any monetary relief shall be
limited to bid preparation and proposal costs.” Id. § 1491(b)(2). Wyoming, and other
similarly situated federal contractors, would still incur the business and financial effects of
a lost or suspended employee, as well as nonrecoverable compliance and monitoring costs.
See BST Holdings, LLC v. Occupation Safety and Health Admin., 17 F.4th 604, 618 (5th
Cir. 2021). The Court concludes that plaintiffs will suffer irreparable harm in their capacity
as federal contractors.
D. Balance of Harms and Public Interest
Lastly, the Court must determine whether plaintiffs have shown that 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 opposing the injunction is the federal government, the balance-of-harms factor
“merge[s]” with the public-interest factor. Nken v. Holder, 556 U.S. 418, 435 (2009).
Plaintiffs argue that the public interest favors an injunction because the mandate
implicates important principles of federalism. (Doc. 9 at 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
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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.
Circuit 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.
_ /s/ David D. Noce ___k
UNITED STATES MAGISTRATE JUDGE
Signed on December 20, 2021.
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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 7: Substantive Violation of the APA, Agency Action not in Accordance with
Law and in Excess of Authority: 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
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File and source
- File
- Missouri_EDMO_4-21-cv-01300_8th-21-3725__doc-036__att-0.pdf
- Size
- 205,495 bytes
- SHA-256
- a1f81131a34b5ac72cb5f8dc51bcbce765840e72c5741d869933404444afd265
- Original
- storage.courtlistener.com