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Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 028 Att 0
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Plaintiffs' supplemental memorandum in support of a permanent injunction, filed December 10, 2021 as Doc. 28 in State of Missouri et al. v. Joseph R. Biden, No. 4:21-cv-01300-DDN, in the U.S. District Court for the Eastern District of Missouri. The ten plaintiff States argue that the Procurement Act does not authorize the federal contractor COVID-19 vaccine mandate issued under EO 14,042, that the defendants failed to follow required procedures, and that the mandate is unconstitutional. The brief addresses standing, mootness and final agency action, and contends the mandate conflicts with the Procurement Policy Act, 41 U.S.C. § 1303(a)(1), and the Competition in Contracting Act, 31 U.S.C. § 3301(a)(1). It states that in 2020 over $27 billion in federal contracts listed the plaintiff States as the place of performance. The document runs 25 pages and closes with a certificate of service.
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No. 4:21-cv-01300-DDN · Doc. 28 · Docket on CourtListener
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Case: 4:21-cv-01300-DDN Doc. #: 28 Filed: 12/10/21 Page: 1 of 25 PageID #: 871
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STATE OF MISSOURI,
STATE OF NEBRASKA,
STATE OF ALASKA,
STATE OF ARKANSAS,
STATE OF IOWA,
STATE OF MONTANA, No. 4:21-cv-01300
STATE OF NEW HAMPSHIRE,
STATE OF NORTH DAKOTA,
STATE OF SOUTH DAKOTA,
STATE OF WYOMING,
Plaintiffs,
v.
JOSEPH R. BIDEN, et al.,
Defendants.
PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN
SUPPORT OF PERMANENT INJUNCTION
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INTRODUCTION
Does a law centralizing management of procurement in the President allow the federal
government to require an employee to get a COVID-19 vaccine because that employee may share
a parking lot with a coworker who is in some way working on a federal contract? It does not.
There is no textual or contextual reason to believe that Congress, when it passed the Procurement
Act to centralize and rationalize the procurement process, also empowered the President to
mandate vaccines for people who do not even work on federal contracts—all in the name of public
health. Such a reading is unconstitutional and contrary to established principles of statutory
interpretation. Yet the Government ignored all those principles in issuing the unprecedented
contractor mandate. It also ignored procedural requirements that would have flagged those issues,
which simply underscores that the mandate cannot withstand scrutiny. Two courts have already
issued preliminary injunctions barring enforcement of the mandate, for essentially the same
reasons laid out here. Courts around the country have blocked this administration’s other vaccine
mandates for similar reasons as well. This Court should do the same
FACTUAL AND PROCEDURAL HISTORY
Plaintiff States incorporate the relevant factual history and documentation set out in their
memorandum in support of a motion for a preliminary injunction, ECF 9, at 2–15, and the parties’
Joint Statement of Material Facts, ECF 27, including the Declaration of Michael E. Talent and
attached exhibits, ECF 27-1. 1 This Court has allowed supplemental briefing on Plaintiff States’
request for a permanent injunction on certain claims. See ECF 26, at 2. Plaintiff States understand
this to include all claims that do not require the administrative record. Those claims fall into one
of three categories: (1) that the Procurement Act does not authorize the contractor mandate (Counts
1
Citations of exhibits refer to the exhibits attached to the Talent Declaration. Because Exhibit H
is not separately paginated, page number citations reference the declaration’s pagination.
1
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One, Six (¶ 132), Seven, and Eight); (2) that Defendants failed to respect the required procedures
in issuing the contractor mandate (Counts Two, Five, and Nine (¶ 157)); 2 and (3) that the contractor
mandate is unconstitutional (Counts Three, Four, Six (¶ 132), Ten, Eleven, and Twelve).
ARGUMENT 3
I. There are no jurisdictional or other barriers to reaching the merits.
Standing: The Government has not questioned Plaintiff States’ standing in this case. Nor
can it reasonably do so. The facts readily show that Plaintiff States have standing. See Georgia v.
Biden, 2021 WL 5779939, at *6–7 (S.D. Ga. Dec. 7, 2021); Kentucky v. Biden, 2021 WL 5587446,
at *3–5 (E.D. Ky. Nov. 30, 2021).
Standing requires (1) an injury in fact (2) fairly traceable to the defendants’ conduct and
(3) likely to be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–
61 (1992). Only one plaintiff “needs to have standing” to permit judicial review. Massachusetts v.
EPA, 549 U.S. 497, 518 (2007). Standing is plainly satisfied here because the Government admits
that the mandate has already been applied to at least one of Plaintiff States’ contracts. See ECF
20, at 37 n.16 (discussing ECF 9-7); Georgia, 2021 WL 5779939, at *6 (finding standing because
mandate applied to one contract a State was pursuing).
In addition, Plaintiff States have standing because some of their contracts are set to renew
“sometime in the relatively near future.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211
(1995). Plaintiff States are parties to many federal contracts subject to the mandate, and several
of those are scheduled to renew in the next nine months. See, e.g., ECF 9-6, ¶ 4; ECF 9-10, ¶¶ 3–
5; ECF 9-11, ¶¶ 4, 6, 8–11 (contracts renewing in December 2021, May 2022, and August 2022);
2
To the extent the Court believes the notice requirements turns on factual records before the
agency, Plaintiff States request the Court refrain from ruling on them here.
3
Plaintiff States also incorporate by reference the arguments in their memorandum in support of a
preliminary injunction, ECF 9, and their reply in support of a preliminary injunction, ECF 23.
2
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ECF 9-12, ¶ 5 (expecting $100 million in “multi-year federal contracts” in “the coming months”);
ECF 9-13, ¶¶ 4–7; ECF 9-14, ¶ 3; ECF 23-4, ¶ 5. Those facts further demonstrate Plaintiff States’
standing. See Georgia, 2021 WL 5779939, at *7 (finding standing because “the State
Plaintiffs ... routinely enter into contracts that would be covered by” the mandate and they “have
current contracts that could easily fall under the requirements of [the mandate] (if, for instance,
they are renewed, modified, or have options that are exercised)”).
And to the extent the Government has demanded modifications to existing contracts with
Plaintiff States, see, e.g., ECF 9-12, ¶¶ 9–31, that too confers standing. “[T]he fact that
governmental agencies are already requesting that current contracts … comply with the vaccine
mandate indicates a threat of future harm to the Plaintiffs” since “it stands to reason that contractors
who do not comply will likely be blacklisted.” Kentucky, 2021 WL 5587446, at *4.
Standing also exists since Plaintiff States will have to implement the mandate for thousands
of state employees, see ECF 9-6, ¶¶ 5–6, thus imposing substantial administrative and financial
burdens, see, e.g., ECF 9-6, ¶ 9; ECF 9-10, ¶¶ 3–5; ECF 23-4, ¶¶ 10–11, and the anticipated loss
of unvaccinated state employees, see, e.g., ECF 9-6, ¶¶ 7–8, 10–11; ECF 9-14, ¶¶ 5–8; ECF 27,
¶ 31. Those harms are legally cognizable. See Georgia, 2021 WL 5779939, at *4 (discussing the
“undertakings” needed “to comply”). Also, some Plaintiff States may forego their contracts and
the accompanying federal funds rather than accept the mandate. See, e.g., ECF 9-13, ¶¶ 8–12.
That, too, is a sufficient injury for standing. See Dep’t of Com. v. New York, 139 S. Ct. 2551, 2565
(2019) (loss of “federal funding” supports standing).
Lastly, Plaintiff States are “entitled to special solicitude in the standing analysis” and may
“litigate as parens patriae to protect quasi-sovereign interests—i.e., public or governmental
interests that concern the state as a whole.” Massachusetts, 549 U.S. at 520 & n.17. In 2020 alone,
3
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over $27 billion in federal contracts featured Plaintiff States as the place of performance. ECF 27,
¶ 29. Thus, countless businesses and workers in those States will be subject to and harmed by the
mandate, and Plaintiff States have standing to raise those interests. See Kentucky, 2021 WL
5587446, at *3–4 (concluding that these kinds of facts establish standing).
Mootness: Nor are there mootness issues because of the November rationalization. “[T]he
voluntary repeal of a regulation does not moot a case if there is reason to believe the agency will
reinstitute it.” Akiachack Native Cmty. v. U.S. Dep’t of Interior, 827 F.3d 100, 106 (D.C. Cir.
2016). Likewise here: The Task Force Guidance OMB approved in November is substantively
the same as the one approved in September. See ECF 27, ¶ 25 (noting two minor differences
between the two); see also ECF 23, at 7 (noting that the Government’s arguments about whether
OMB’s determination was arbitrary and capricious supports this position). OMB admits as much.
The November rationalization’s title says it includes a “Revised Economy & Efficiency Analysis.”
86 Fed. Reg. 63,418, 63,418. That implies that the original rule is still in force and only the
supporting analysis has changed. Thus, the contractor mandate exists now in essentially the same
form as it did at the start of the litigation. This Court can provide Plaintiff States with the same
type of relief they sought at the outset, and so the case isn’t moot. See, e.g., Knox v. Serv. Emp.
Int’l Union, Local 1000, 567 U.S. 298, 307–08 (2012). 4
4
That the Southern District of Georgia issued a nationwide preliminary injunction does not moot
Plaintiff States’ requests for a declaration that the contractor mandate is invalid, vacatur of OMB’s
September determination and November rationalization and the FAR Memorandum, and a
permanent injunction against the mandate. That relief is different in kind from a preliminary
injunction, which is necessarily “of limited duration” and will expire after a ruling on the merits.
California v. U.S. Dep’t of Health & Hum. Servs., 941 F.3d 410, 423 (9th Cir. 2019), judgment
vacated on other grounds, 141 S. Ct. 192 (2020). Moreover, the nationwide preliminary injunction
might soon be stayed or limited in scope on appeal, thus invoking the “capable-of-repetition yet
evading review” exception to mootness. See United States v. Sanchez-Gomez, 138 S. Ct. 1532,
1540 (2018). Indeed, the Eleventh Circuit held that a State’s request for an injunction against the
federal CMS vaccine mandate for healthcare workers was not moot because a different district
4
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Final Agency Action: Finally, OMB’s and FAR’s actions are final agency action. That
OMB’s determination may be an exercise of the President’s Procurement Act authority, see ECF
20, at 17–18, is irrelevant—especially where the issue is the legality of OMB’s actions. “It is now
well established that ‘[r]eview of the legality of Presidential action can ordinarily be obtained in a
suit seeking to enjoin the officers who attempt to enforce the President’s directive.’ ... [R]eview
of the OMB Determination is appropriate in this case.” Kentucky, 2021 WL 5587446, at *11
(quoting Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (quoting
Franklin v. Massachusetts, 505 U.S. 788, 815 (1992) (Scalia, J., concurring in part and concurring
in judgment)); see also Hagemeier v. Block, 806 F.2d 197, 203 (8th Cir. 1986).
While the Kentucky court said the FAR Guidance (which contains the contract clause
incorporating the contractor mandate) did not constitute final agency action, see id., its conclusion
is incorrect. The Kentucky court relied, first, on the fact that the guidance was an initial step under
EO 14,042. See id. But “interim agency resolution counts as final agency action despite the
potential for a different permanent decision, as long as the interim decision is not itself subject to
further consideration by the agency.” Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 78 (D.C.
Cir. 2020). And the Kentucky’s court view that FAR’s action “constitutes nonbinding guidance,”
2021 WL 5587446, at *11, ignores that EO 14,042 generally requires agencies to include it, see
§ 2(a), and thus “alters the legal regime to which [another] agency is subject” and “has a powerful
coercive effect” on agencies. Bennet v. Spear, 520 U.S. 154, 169 (1997). Indeed, the guidance
says that civilian agencies that incorporate the provided clause are “presumed to have consulted
with the” CAAC “as required by FAR 1.404(a)(1),” Ex. F, at 3, which clearly “alter[s] the legal
court preliminarily enjoined that mandate nationwide. See Florida v. Dep’t of Health & Human
Servs., 2021 WL 5768796, at *6–*11 (11th Cir. Dec. 6, 2021).
5
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regime to which” agencies are subject and establishes finality. Bennett, 520 U.S. at 178.
Tucker Act: Contrary to Defendants’ prior suggestion, see ECF 20, at 38, Plaintiff States
need not bring their claims in the Court of Federal Claims. As the Federal Circuit has repeatedly
affirmed, “the proper method” for a federal contractor “to challenge the validity of a regulation
governing a procurement ... is to bring an action in federal district court under the Administrative
Procedure Act,” just as Plaintiff States have done here. Southfork Sys., Inc. v. United States, 141
F.3d 1124, 1135 (Fed. Cir. 1998); see also Land Shark Shredding, LLC v. United States, 842 F.
App’x 589, 593 (Fed. Cir. 2021).
II. The Contractor Mandate is unlawful, procedurally defective, and unconstitutional.
A. The Procurement Act does not authorize the contractor mandate.
Per EO 14,042 (Exhibit C), the contractor mandate is an exercise of the President’s
authority under the Procurement Act (also called the Federal Property Administrative Services
Act, or FPASA), 40 U.S.C. § 101 et seq. See EO 14,042 § 2(a); see also 86 Fed. Reg. at 63,418;
86 Fed. Reg. at 53,692. The question, then, is whether a law “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), authorizes a regulation mandating that a contractor’s workforce (and
their subcontractors’ employees) get vaccinated. As two district courts have recently said, it does
not. Georgia, 2021 WL 5779939, at *8–*10; Kentucky, 2021 WL 5587446, *5–*10.
1. Other laws bar the contractor mandate.
EO 14,042 and the contractor mandate cannot stand because they conflict with two other
laws. See Reich, 74 F.3d at 1332. The first is the Procurement Policy Act, which permits only the
FAR Council to “issue and maintain” procurement regulations. 41 U.S.C. § 1303(a)(1)–(2).
Individual agencies, by contrast, can only issue “regulations essential to implement Government-
6
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wide policies and procedures within the agency.” § 1303(a)(2)(A) (emphasis added). EO 14,042,
however, gives OMB power to determine whether federal agencies “shall” incorporate the
contractor mandate in federal contracts. § 2(a). That is power reserved to the FAR Council, and
the President cannot give it to OMB.
The other law is the Competition in Contracting Act (CICA). The CCIA requires “full and
open competition” in procuring services. 31 U.S.C. § 3301(a)(1). Agencies cannot preclude “full
and open competition by effectively excluding an offeror from winning an award,” particularly
offerors that “represent[] the best value to the government.” Nat’l Gov’t Servs, Inc. v. United
States, 923 F.3d 977, 990 (Fed. Cir. 2019). But the contractor mandate does exactly that—
“contractors who ‘represent[] the best value to the government’ but choose not to follow the
vaccine mandate would be precluded from effectively competing for government contracts.”
Kentucky, 2021 WL 5587446, at *8 (quoting Nat’l Gov’t Servs, 923 F.3d at 990).
2. The Procurement Act does not authorize the contractor mandate.
1. The Procurement Act does not authorize the President to issue regulations—that is, to
impose conditions that “address [contractor] conduct unrelated to the employer’s performance of
contractual obligations to the Government.” Building & Constr. Trades Dep’t v. Allbaugh, 295
F.3d 28, 36 (D.C. Cir. 2002) (alterations omitted) (quoting Building & Constr. Trades Council v.
Associated Builders & Contractors, 507 U.S. 218, 228–29 (1993)). That is because 40 U.S.C.
§ 121(a), which purportedly authorizes EO 14,042, does not allow for that. Section 121(a)
provides that “[t]he President may prescribe policies and directives that [he] considers necessary
to carry out this subtitle.” But prescribing “policies and directives” is different from issuing
regulations—as the statutory context shows. Section 121(c), for example, authorizes the GSA
Administrator to “prescribe regulations to carry out this subtitle.” The words thus have different
meanings; “where Congress includes particular language in one section of a statute but omits it in
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another section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” United States v. Daifullah, 11 F.4th 888, 894
(8th Cir. 2021) (quotations and alterations omitted). That was not an oversight. Elsewhere in the
Procurement Act (§ 603) and in the U.S. Code (18 U.S.C. § 3496 and 32 U.S.C. § 110), Congress
expressly provided the President power to issue regulations, proving that it did not do so in § 121.
See Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004).
That conclusion is consistent with the traditional distinction in administrative law between
regulations and policies—a distinction predating the Procurement Act. See, e.g., Chrysler Corp. v.
Brown, 441 U.S. 281, 302 n.31 (1979) (discussing 1941 and 1947 materials from the Attorney
General relating to the APA). Thus, that distinction applies to § 121(a). See Bragdon v. Abbott,
524 U.S. 624, 645 (1998) (reading new statutory language that repeats language with well-settled
interpretations as including those interpretations). It is also consistent with the fact that “directive”
is akin to “policy,” see Directive, Webster’s 3d New International Dictionary (2002) (“something
that serves to direct, guide, and usu. impel toward an action, attainment, or end”), and the statutory
linkage (they appear close to each other) between the two, see Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 196–98 (2012) (applying noscitur a sociis when
“terms [are] conjoined in such a way to indicate that they have some quality in common”).
The law’s history underscores all this. Prior to 2002, the Procurement Act gave the
President authority to prescribe policies and directives that “shall govern the Administrator [of the
GSA] and executive agencies in carrying out their respective functions” under the Procurement
Act. 40 U.S.C. § 486(a) (2001) (emphasis added). “Congress added [that section] to guarantee
that Presidential policies and directives shall govern not merely guide the agencies under the
FPASA.” Kahn, 618 F.2d at 788 (quotations omitted). But that is a supervisory, not regulatory,
8
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role, see id., and thus vests the President only with “authority to direct” agencies in performing
their “functions under FPASA provisions.” AFL-CIO v. Carmen, 669 F.2d 815, 822 (D.C. Cir.
1981); see also Reich, 74 F.3d at 1333. Since Congress re-enacted that provision into 40 U.S.C.
§ 121(a) “without substantive change,” Pub. L. No. 107-217, § 1, 116 Stat. 1062, 1062 (2002),
§ 121(a) carries forward that supervisory authority—and no more.
EO 14,042 and the contractor mandate, however, are not exercises of supervisory authority
directing agencies’ implementation of the Procurement Act; they are regulations supervising health
and safety by demanding that those who “want to do business with the federal government
vaccinate [their] workforce.” ECF 27, ¶ 12 (quoting Pres. Biden). That much is clear from their
breadth. Employers with covered contracts effectively must ensure that all their employees are
vaccinated. For example, “[e]mployees who perform duties necessary to the performance of the
covered contract, but who are not directly engaged in performing the specific work ... such as
human resources, billing, and legal review” are covered as those working “in connection with” a
federal contract. Ex. H, at 75. And employees who do not work on a federal contractor but may
interact with those who do in “common areas such as lobbies ... and parking garages” must also
be vaccinated. Id. 70–71. Thus, merely saying “hello” to a coworker in a parking garage brings
an employee under the contractor mandate. That is on top of mandating vaccination of employees
who pose little COVID-19 risk such as those who recovered from a prior infection, see id. at 68, 5
those who work outdoors, id. at 70, 6 and those who work from home, id. at 71.
That clearly amounts to a health and safety regulatory scheme. See Reich, 74 F.3d at 1338
5
Infection-mediated immunity is “as robust and durable (or more) as that acquired through
vaccination.” ECF 9-5 ¶ 31.
6
People are less likely to get COVID-19 outdoors. See CDC, Participate in Outdoor and Indoor
Activities, https://bit.ly/3GurciW (last visited Dec. 9, 2021).
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(noting the potential regulatory nature of such broad rules). That the mandate appears in federal
contracts is irrelevant to that conclusion; its “manifest purpose and inevitable effect” is the
regulation of health and safety so it is not “a legitimate response to [federal] procurement
constraints or to ... economic need.” Wis. Dep’t of Indus., Labor & Human Relations v. Gould
Inc., 475 U.S. 282, 291 (1986). It is thus no different from the OSHA mandate, and like that
mandate, its sole purpose is to “ramp up vaccine uptake by any means necessary.” BST Holdings
L.L.C. v. OSHA, 17 F.4th 604, 615, 616 (5th Cir. 2021). Indeed, that OSHA imposed basically the
same requirement as a workplace safety rule proves that the contractor mandate is about health
and welfare, not procurement. See Kentucky, 2021 WL 5587446, at *8.
2. Nor is the contractor mandate “consistent with” the Procurement Act’s purpose of
providing “the Federal Government with an economical and efficient system” of procurement. 40
U.S.C. §§ 101, 121; see also United States v. Oseby, 148 F.3d 1016, 1018 (8th Cir. 1998). That
statutory requirement limits presidential authority to those actions that “achieve a flexible
management system capable of making sophisticated judgments in pursuit of economy and
efficiency.” Kahn, 618 F.2d at 789. The Procurement Act “was not intended to achieve a wide
variety of economic and social goals.” Comm. for Auto Responsibility (C.A.R.) v. Solomon, 603
F.2d 992, 999 n.23 (D.C. Cir. 1979). Presidents, and their delegates, cannot use the law “to impose
their notions of desirable social legislation on the states wholesale.” Contractors Ass’n of E. Pa. v.
Sec’y of Labor, 442 F.2d 159, 171 (3d Cir. 1971).
Thus, the Procurement Act’s reach, however broad, see, e.g., UAW-Labor Employment and
Training Corp. v. Chao, 325 F.3d 360, 367 (D.C. Cir. 2003), is “not intended to operate as a ‘blank
check for the President to fill in at his will.’” Georgia, 2021 WL 5779939, at *10 (quoting Kahn,
618 F.2d at 793). Instead, the presidential prescriptions “must be ‘reasonably related’ to the
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purposes of the Procurement Act.” Id. (quoting Liberty Mut. Ins. Co. v. Friedman, 939 F.2d 164,
170 (4th Cir. 1981)). Only when “the President prescribes policies and directives bearing an actual
and logical relationship to [procurement], [has] he lawfully exercise[d] his powers under” the Act.
Kahn, 618 F.2d at 800 (MacKinnon, J., dissenting). In other words, there must be a “sufficiently
close nexus between” economy and efficiency and a purported Procurement Act policy. Id. at 792;
see also id. at 797 (Bazelon, J., concurring); id. (Tamm, J., concurring).
The contractor mandate fails that requirement—as two courts have said. Georgia, 2021
WL 5779939, at *10; Kentucky, 2021 WL 5587446, at *7. President Biden was quite clear about
the mandate’s goal: “I’m announcing tonight a new plan to require more Americans to be
vaccinated. ... [W]e must increase vaccinations among the unvaccinated with new vaccination
requirements.” Ex. B, at 3–4. The contractor mandate’s incredible reach, as discussed above,
highlights this by requiring employees with little to no connection to federal contracts or little to
no risk of spreading COVID-19 to vaccinate. It is hard to see how that has anything to do with
ensuring an “economical and efficiency system for ... procurement and supply.” 40 U.S.C.
§ 101(1). To the contrary, the mandate will impose “extensive and costly administrative work by
employers and will force at least some individuals to choose between getting medical treatment
that they do not want or losing their job.” Georgia, 2021 WL 5779939, at *10; see also Ex. K;
ECF 9-6, ¶¶ 5–8; ECF 9-10, ¶¶ 3–5; ECF 9-12, ¶¶ 32–45; ECF 9-14, ¶¶ 4–8; ECF 23-4, ¶¶ 8–12;
ECF 27, ¶ 31; cf. 86 Fed. Reg. at 63,422 (providing anecdotes showing less than 100% of workers
comply with vaccine mandates). Even by its own terms, the mandate is not closely related to
procurement. The purported justification for the mandate’s economy and efficiency is reducing
the spread of COVID-19. See, e.g., EO 14,042, § 1; 86 Fed. Reg. at 53,692. But the vaccine’s
ability to do that is unknown and imperfect, as the Government admits. See ECF 27 ¶ 9. And the
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purported link between the vaccine and procurement rests on a series of conclusory, inferential
chains. See EO 14,042 § 1; 86 Fed. Reg. at 63,423; 86 Fed. Reg. at 53,692.
That inferential, basically hypothetical, “downstream connection” is “markedly different
from” ensuring efficient procurement. Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs.,
141 S. Ct. 2485, 2488 (2021) (discussing the CDC’s COVID-19 eviction moratorium). The nexus
between the contractor mandate and federal procurement is thus not close; the mandate “radiate[s]
too far beyond the purposes of the Procurement Act and the authority it grants to the President.”
Georgia, 2021 WL 5779939, at *10. Indeed, it radiates so far beyond the Procurement Act that
the Government’s rationale “could be used to enact virtually any measure at the president’s whim.”
Kentucky, 2021 WL 5587446, at *7.
Well-settled principles of statutory interpretation confirm that the Procurement Act does
not reach this far. Absent a clear statement from Congress, courts should not read laws to allow
the executive branch to upset the federal-state balance, push the outer bounds of constitutional
power, or address issues of major economic and political significance. See ECF 9, at 21–24. Those
principles apply here. The Georgia court noted this concerning both the contractor mandate and
EO 14,042. See 2021 WL 5779939, at *9. And the Kentucky court pointed out the constitutional
concerns en route to enjoining the contractor mandate. See 2021 WL 5587446, at *8–*10.
Those same principles are also ubiquitous in court rulings enjoining the administration’s
other mandates. See BST Holdings, 17 F.4th at 616–18 (limits of constitutional power and major
questions); id. at 619 (Duncan, J., concurring) (major questions); Louisiana v. Becerra, 2021 WL
5609846, at *11, *15–*16 (W.D. La. Nov. 30, 2021) (similar). Indeed, a court in this district
enjoined the CMS vaccine mandate in part because Congress had not clearly authorized CMS “to
exercise powers of vast economic and political significance,” alter “the balance between federal
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and state power,” and make “an administrative interpretation of a statute that invokes the outer
limits of Congress’ power.” Missouri v. Biden, 2021 WL 5564501, at *2–*4 (E.D. Mo. Nov. 29,
2021) (Schelp, J.) (quotations omitted). And the U.S. Supreme Court stayed a CDC moratorium
on evictions since it was an exercise of power of “vast economic and political significance” and
altered “the balance between federal and state power and the power of the Government over private
property” without a clear statement from Congress. Ala. Ass’n of Realtors, 141 S. Ct. at 2489. 7
See also Gonzales v. Oregon, 546 U.S. 243, 267–68, 270–75 (2006) (applying similar principles
in rejecting the federal government’s claim that the Attorney General could use the Controlled
Substances Act to prohibit state physicians from prescribing drugs for assisted suicides).
This Court should not deviate from those opinions. Given how far it reaches beyond
activities related directly to federal procurement, the contractor mandate plainly intrudes on areas
of traditional state power and pushes constitutional limits. See, e.g., infra Section II.C; ECF 9, at
21–23. And “the amount of money involved ... , the overall impact on the economy, the number
of people affected, and the degree of congressional and public attention” on vaccination confirms
that the mandate is an attempt to exercise power over an issue of great economic and political
significance. U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 422–23 (D.C. Cir. 2017) (Kavanaugh, J.,
dissenting from denial of rehearing en banc). But absent from the Procurement Act is any
indication—much less a clear statement—that Congress authorized such a mandate. See id. at 421.
In fact, there is evidence that Congress does not authorize vaccine mandates. The National
Vaccine Program requires the Department of Health and Human Services to create a plan to
provide “assistance to States, localities, and health practitioners in the distribution and use of
7
An Eleventh Circuit motions panel rejected application of the major questions rule to the CMS
mandate. See Florida, 2021 WL 5768796, at *12–*13 & n.1. But its analysis is wrong as the
dissent persuasively explains. See id. at *24–*25 (Lagoa, J., dissenting).
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vaccines, including efforts to encourage public acceptance of immunizations ... .” 42 U.S.C.
§ 300aa-2(a)(6) (emphases added); see also 42 U.S.C. §§ 247d(b)(2)(A), 247d-1(a)–(b) (involving
vaccines and public health generally). “Assistance” and “encouragement” are quite different from
a mandate, and they suggest a congressional preference for suasion. That is consistent with the
fact that where Congress did impose vaccine-related requirements, it spoke clearly. See 42 U.S.C.
§ 1396u-7(b)(8) (requiring States to include COVID-19 vaccinations as part of their benchmark
coverage under Medicaid). It did not do so in the Procurement Act—and its silence is telling.
***
There is thus no textual, contextual, or other reason to conclude the Procurement Act
authorizes the contractor mandate—and, until this administration, no one has ever thought it did.
See Georgia, 2021 WL 5779939, at *10. “When an agency claims to discover in a long-extant
statute an unheralded power to regulate a significant portion of the American economy, we
typically greet its announcement with a measure of skepticism.” See Util. Air Regulatory Grp. v.
EPA, 573 U.S. 302, 324 (2014) (quotation omitted). That skepticism is justified here.
B. The Defendants failed to follow the necessary procedures.
OMB and the FAR Council also failed to follow the proper procedure (whether under the
APA, 5 U.S.C. § 553, or Procurement Policy Act, 41 U.S.C. § 1707) when issuing the contractor
mandate. Whether the Government complied with procedural requirements is reviewed de novo.
See Citizens Telecomms. Co. of Minn. v. FCC, 901 F.3d 991, 1001 (8th Cir. 2018). And since
“[n]otice and comment procedures secure the values of government transparency and public
participation,” exceptions “must be narrowly construed.” Iowa League of Cities v. EPA, 711 F.3d
844, 873 (8th Cir. 2013) (quotations omitted); see also Missouri, 2021 WL 5564501, at *4.
As Plaintiff States showed, OMB and FAR needed but failed to comply with § 1707 or
§ 553 in issuing the mandate. See ECF 9, at 31–33; ECF 23, at 12–13. The Kentucky court’s
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contrary conclusion as to OMB’s determination is incorrect. The court said that OMB’s November
rationalization mooted challenges to the September determination and that the rationalization
complied with § 1707(d)’s waiver requirement. See 2021 WL 5587446, at *11–*12. But the
former ignores that OMB’s November rationalization was not new agency action. See supra
Section I; ECF 23, at 13. And the latter ignores that OMB’s November rationalizations are facially
implausible and insufficient. See ECF 23, at 13. To the extent OMB claims a compelling need to
ensure regulatory certainty and consistency, see 86 Fed. Reg. at 63,423–24, those interests
“reflect[] a generalized concern that exists any time an act requires further substantive rulemaking”
and do not justify avoiding notice and comment. United States v. Brewer, 766 F.3d 884, 889 (8th
Cir. 2014). To the extent the justification is the threat from COVID-19, see 86 Fed. Reg. at 63,423,
“an agency’s conclusion that bypassing notice and comment requirements is necessary to protect
the public safety” is not an automatic excuse. Missouri, 2021 WL 5564501, at *6 (citing, inter
alia, Brewer, 766 F.3d at 889). The agency must “point to something specific that illustrates a
particular harm that will be caused by the delay required for notice and comment.” Brewer, 766
F.3d at 890. The Government has failed to make that particularized showing here.
The Kentucky court also ignored “the unprecedented, controversial, and health-related
nature of the mandate.” Missouri, 2021 WL 5564501, at *6. That is a compelling justification for
notice and comment. Ignoring procedural rules “undermines the democratic process that [they]
are intended to protect” and the rule’s legitimacy. See id. at *7. Thus, “[f]ar from [justifying]
circumventing the normal rulemaking requirements, the unprecedented and controversial mandate
affecting personal health constitutes a compelling reason to utilize those procedures.” Id.
C. The contractor mandate is unconstitutional.
Multiple courts “have either expressed agreement with or at least concern about” Plaintiff
States’ claims that the contractor mandate violates the Tenth Amendment, falls outside the power
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conferred by the Spending Clause or Commerce Clause, and violates the non-delegation doctrine.
Georgia, 2021 WL 5779939, at *11 (citing BST Holdings, 17 F.4th at 616–18, and Kentucky, 2021
WL 5587446, at *9). A law empowering the federal executive “to make sweeping
pronouncements on matters of public health affecting every member of society in the profoundest
of ways” is unconstitutional. BST Holdings, 17 F.4th at 611. Because the contractor mandate does
exactly that, reading the Procurement Act to authorize the mandate renders the Act unconstitu-
tional. See ECF 9, at 33–37; ECF 23, at 15–18.
That the contractor mandate is imposed through federal contracts doesn’t alter the conclu-
sion. As explained above, the contractor mandate is, in reality, a health and safety regulation for
federal contractors. See supra Section II.A. Such regulations, however, “are, in the first instance,
for” the States and “do not ordinarily concern the national government.” Jacobson v.
Massachusetts, 197 U.S. 11, 38 (1905).
But to the extent the contract context matters, all it does is underscore that the Spending
Clause does not authorize the federal government to impose the mandate. Conditions on federal
spending must “relate[] to the federal interest in particular national projects or programs.” Van
Wyhe v. Reisch, 581 F.3d 639, 650 (8th Cir. 2009) (quotations omitted). They do not when they
regulate “conduct outside the scope of the” federal contract. Rust v. Sullivan, 500 U.S. 173, 197
(2000) (discussing grants). Requiring contractors to vaccinate everyone who works in the same
general location as those working on a federal contract, including those with little risk of spreading
COVID-19, is certainly that. Cf. Georgia, 2021 WL 5779939, at *10 (The mandate “radiate[s] too
far beyond the purposes of the Procurement Act.”).
The contractor mandate also violates the Spending Clause for another reason: the federal
policy embodied in the mandate can change on a moment’s notice. The updated Guidance requires
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compliance with the ever-changing FAQs the Task Force lists on its website. See 86 Fed. Reg. at
63,421 (providing the link in a copy of the Guidance). And EO 14,042 authorizes OMB, the Task
Force, and FAR to make binding alterations to the Guidance at any time. The ability to alter
contract terms mid-performance, with no guidance as to what those alterations may be, is not the
kind of unambiguous contract condition that passes constitutional muster. See Van Wyhe, 581
F.3d at 650; see also Ohio v. Yellen, 2021 WL 2712220, at *15 (S.D. Ohio July 1, 2021).
III. The Court should vacate the OMB Determination and FAR Memorandum and enjoin
enforcement of the contractor mandate.
Because Counts Five, Six, Seven, Eight, and Nine allege that the OMB Determination—
that is, the September determination and November rationalization—and the FAR Memorandum
are unconstitutional, lack a statutory basis, and are procedural defective under the APA, 5 U.S.C.
§ 706(2), “[t]he ordinary practice is to vacate” them. United Steel v. Mine Safety & Health Admin.,
925 F.3d 1279, 1287 (D.C. Cir. 2019). And since the contractor mandate’s problem is its illegality,
there is no reason to depart from ordinary practice. See United Food & Commercial Workers
Union, Local No. 663 v. U.S. Dep’t of Agric., 532 F. Supp. 3d 741, 778 (D. Minn. 2021).
A permanent injunction is also appropriate. Besides actual success on the merits, a
permanent injunction issues after consideration of the “threat of irreparable harm to the movant,”
the balance of harms between the movant and other parties, and “the public interest.” Laredo
Ridge Wind, LLC v. Neb. Pub. Power Dist., 11 F.4th 645, 654 (8th Cir. 2021) (quoting Forest Park
II v. Hadley, 336 F.3d 724, 731 (8th Cir. 2003)). The last two factors merge where the party
opposing the injunction is the federal government. See, e.g., Missouri, 2021 WL 5564501, at *14.
All these factors justify injunctive relief here.
Irreparable Harm: Plaintiff States have suffered a number of irreparable harms. One is
sovereign harms. “State[s] ... suffer irreparable harm” when they are “precluded from applying
17
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[their] duly enacted legislation.” Org. for Black Struggle v. Ashcroft, 978 F.3d 603, 609 (8th Cir.
2020). Plaintiff States have many laws addressing vaccines and compulsory vaccination, see ECF
9, at 38–39, that the mandate purports to preempt or arguably preempts, see Ex. H, at 79. That
establishes irreparable harm. See BST Holdings, 17 F.4th at 618 (“The States ... have an interest
in seeing their constitutionally reserved police power over public health policy defended from
federal overreach.”). So, too, does the unlawful commandeering of State employees and policies.
Another set of irreparable harms are those Plaintiff States have and will experience in their
roles as federal contractors. Plaintiff States and their agencies “are now having to make tough
choices about whether they will choose to comply with the vaccine mandate or lose out on future
federal government contracts.” Kentucky, 2021 WL 5587446, at *13. Some of their agencies have
already seen the Government unilaterally impose the mandate on them, see, e.g., ECF 9-7, ¶ 6;
others have been coerced into modifying their contracts to include the mandate, see, e.g., ECF 9-
7, ¶ 5; ECF 9-12, ¶¶ 9–31, 39–45; and others are quickly approaching contract renewals that
include the mandate, see, e.g., ECF 9-11, ¶¶ 4, 6, 8–11; ECF 9-12, ¶ 5. All of that has caused or
will cause Plaintiff States to undertake compliance efforts that entail substantial administrative,
planning, and financial burdens. See, e.g., ECF 9-6, ¶ 9; ECF 9-10, ¶¶ 3–5; ECF 23-4, ¶¶ 10–12.
Such “nonrecoverable compliance costs” and “the diversion of resources” constitute “irreparable
harm.” BST Holdings, 17 F.4th at 618; accord Georgia, 2021 WL 5779939, at *11 (finding “the
irreparable harm of nonrecoverable compliance”); Kentucky, 2021 WL 5587446, at *13 (same).
Plaintiff States have also shown irreparable quasi-sovereign harm. When States assert their
own rights against the federal government, as Plaintiff States do here, they may also “litigate as
parens patriae to protect quasi-sovereign interests” of a substantial segment of their population.
Massachusetts, 549 U.S. at 520 n.17. Thus, Plaintiff States may raise the “irreparable injury”
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facing their millions of citizens who are “put to a choice between their job(s) and their jab(s),” BST
Holdings, 17 F.4th at 618; see also ECF 27, ¶ 31, and the harms facing federal contractors within
their borders that are threatened with economic ruin, Kentucky, 2021 WL 5587446, at *3. This
also establishes the irreparable “negative effect” that the contractor mandate would have “on the
economies” of Plaintiff States. Missouri, 2021 WL 5564501, at *13.
Furthermore, remedies at law are inadequate for these injuries. See Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 156–57 (2010). “Irreparable harm,” by definition, “occurs
when a party has no adequate remedy at law.” Gen. Motors Corp. v. Harry Brown’s, LLC, 563
F.3d 312, 319 (8th Cir. 2009). Even assuming Plaintiff States could sue the Government for
damages, no amount of monetary relief could compensate Plaintiff States for suspending
enforcement of their public-health laws, incurring nonrecoverable compliance costs, or allowing
the Government to dictate their citizens’ private medical decisions.
Balance of Harms and Public Interest: The balance of hardships and public interest also
weigh strongly in favor of issuing a permanent injunction. “[A]ny abstract ‘harm’ [an injunction]
might cause the [Government] pales in comparison and importance to the harms the absence of
[an injunction] threatens to cause countless individuals and companies.” BST Holdings, 17 F.4th
at 618; accord Georgia, 2021 WL 5779939, at *12; Kentucky, 2021 WL 5587446, at *13 (same).
The requested injunction would “do nothing more than maintain the status quo.” Georgia, 2021
WL 5779939, at *12. In contrast, denying the injunction “would force Plaintiffs to comply with
the mandate, requiring them to make decisions which would significantly alter their ability to
perform federal contract work ... critical to their operations.” Id.; see, e.g., ECF 9-6, ¶ 4
(University of Missouri has 230 contracts); ECF 9-7, ¶ 4 (Iowa universities receive $1.3 billion);
ECF 9-12, ¶ 5 (one Alaska university receives $200 million). “Additionally, requiring compliance
19
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with [the mandate] would likely be life altering for many of Plaintiffs’ employees [and employees
of other contractors in Plaintiff States] as Plaintiffs [and other contractors] would be required to
decide whether an employee who refuses to be vaccinated can ... be reassigned ... or whether the
employee instead must be terminated.” Georgia, 2021 WL 5779939, at *12.
The Government, by contrast, has no legitimate interest “in enforcing an unlawful”
mandate. BST Holdings, 17 F.4th at 618; see also Ala. Ass’n of Realtors, 141 S. Ct. at 2490. Nor
will an injunction “harm the public interest in slowing the spread of COVID-19.” ECF 20, at 40.
The Government admits that “[t]he duration of vaccine effectiveness in preventing COVID-19,
reducing disease severity, reducing the risk of death, and the effectiveness of the vaccine to prevent
disease transmission by those vaccinated are not currently known.” ECF 27, ¶ 9. That fatally
“undercut[s] this argument.” Missouri, 2021 WL 5564501, at *14.
CONCLUSION
For those reasons, Plaintiff States respectfully request that the Court: (1) declare the
contractor mandate, and all similar orders, unlawful and unconstitutional; (2) vacate the OMB
September determination and subsequent November rationalization; and (3) enjoin enforcement
of the contractor mandate and all similar orders.
20
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Dated: December 10, 2021 Respectfully submitted,
DOUGLAS J. PETERSON ERIC S. SCHMITT
Attorney General of Nebraska Attorney General of Missouri
/s/ James A. Campbell /s/ Justin D. Smith
James A. Campbell Justin D. Smith, #63253MO
Solicitor General of Nebraska Deputy Attorney General of Missouri
Office of the Nebraska Attorney General Michael E. Talent, #322220CA
2115 State Capitol Deputy Solicitor General
Lincoln, NE 68509 Missouri Attorney General’s Office
(402) 471-2686 Post Office Box 899
Jim.Campbell@nebraska.gov Jefferson City, MO 65102
Counsel for Plaintiffs (573) 751-0304
Justin.Smith@ago.mo.gov
Counsel for Plaintiffs
TREG R. TAYLOR
Attorney General of Alaska
/s/ Cori Mills
Cori M. Mills
Deputy Attorney General of Alaska
Alaska Department of Law
1031 W. 4th Avenue, Suite 200
Anchorage, AK 99501-1994
(907) 269-5100
Cori.Mills@alaska.gov
Counsel for State of Alaska
LESLIE RUTLEDGE
Arkansas Attorney General
/s/ Vincent M. Wagner
Vincent M. Wagner
Deputy Solicitor General
Office of the Arkansas Attorney General
323 Center Street, Suite 200
Little Rock, Arkansas 72201
(501) 682-8090
vincent.wagner@arkansasag.gov
21
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JEFFREY S. THOMPSON
Solicitor General
SAMUEL P. LANGHOLZ
Assistant Solicitor General
Office of the Iowa Attorney General
1305 E. Walnut Street
Des Moines, Iowa 50319
(515) 281-5164
(515) 281-4209 (fax)
jeffrey.thompson@ag.iowa.gov
sam.langholz@ag.iowa.gov
Counsel for State of Iowa
AUSTIN KNUDSEN
Attorney General of Montana
KRISTIN HANSEN
Lieutenant General
DAVID M.S. DEWHIRST
Solicitor General
CHRISTIAN B. CORRIGAN
Assistant Solicitor General
Office of the Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
406-444-2026
David.Dewhirst@mt.gov
Christian.Corrigan@mt.gov
Counsel for State of Montana
JOHN M. FORMELLA
New Hampshire Attorney General
/s/ Anthony J. Galdieri
Anthony J. Galdieri
Solicitor General
NEW HAMPSHIRE DEPARTMENT OF JUSTICE
33 Capitol Street
Concord, NH 03301
Tel: (603) 271-3658
Anthony.J.Galdieri@doj.nh.gov
Counsel for State of New Hampshire
22
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WAYNE STENEHJEM
Attorney General of North Dakota
/s/ Matthew A. Sagsveen
Matthew A. Sagsveen
Solicitor General
State Bar ID No. 05613
Office of Attorney General
500 North 9th Street
Bismarck, ND 58501-4509
Telephone (701) 328-3640
Facsimile (701) 328-4300
masagsve@nd.gov
Counsel for State of North Dakota
JASON R. RAVNSBORG
South Dakota Attorney General
/s/ David M. McVey
David M. McVey
Assistant Attorney General
1302 E. Highway 14, Suite 1
Pierre, SD 57501-8501
Phone: 605-773-3215
E-Mail: david.mcvey@state.sd.us
Counsel for State of South Dakota
BRIDGET HILL
Wyoming Attorney General
/s/ Ryan Schelhaas
Ryan Schelhaas
Chief Deputy Attorney General
Wyoming Attorney General’s Office
109 State Capitol
Cheyenne, WY 82002
Telephone: (307) 777-5786
ryan.schelhaas@wyo.gov
Attorneys for the State of Wyoming
23
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CERTIFICATE OF SERVICE
I hereby certify that, on December 10, 2021, a true and correct copy of the foregoing and
any attachments were filed electronically through the Court’s CM/ECF system, to be served on
counsel for all parties by operation of the Court’s electronic filing system and to be served on those
parties that have not appeared who will be served in accordance with the Federal Rules of Civil
Procedure by mail or other means agreed to by the party.
/s/ Justin D. Smith
24
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