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Florida Mdfl 8 21 Cv 02524 11Th 22 10257 Doc 037 Att 0
Summary
An order entered December 22, 2021 as Document 37 in State of Florida v. Bill Nelson, et al., Case No. 8:21-cv-02524-SDM-TGW, in the U.S. District Court for the Middle District of Florida, Tampa Division. It rules on Florida's motion to preliminarily enjoin Executive Order 14042, the federal contractor vaccination requirement challenged in a fourteen-count complaint. The order describes the executive order's four-step mechanism, the Safer Federal Workforce Task Force guidance of September 24, 2021, the $250,000 simplified acquisition threshold, and the December 8, 2021 and January 18, 2022 deadlines. It grants the motion on the claim that Executive Order 14042 exceeds the President's authority under FPASA, holds the balance under advisement, and denies a motion to stay. The parties may propose a preliminary injunction by December 29, 2021; the order runs 38 pages.
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No. 8:21-cv-02524-SDM-TGW · Doc. 37 · Docket on CourtListener
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Case 8:21-cv-02524-SDM-TGW Document 37 Filed 12/22/21 Page 1 of 38 PageID 626
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STATE OF FLORIDA,
Plaintiff,
v. CASE NO. 8:21-cv-2524-SDM-TGW
BILL NELSON, et al.,
Defendants.
___________________________________/
ORDER
In a fourteen-count complaint, Florida sues President Biden, the Office of
Management and Budget (OMB), and the General Services Administration (GSA),
among others, and claims that the vaccination requirement in the recent executive
order exceeds the President’s authority and violates procedural requirements. Flor-
ida moves (Docs. 10, 24) to preliminarily enjoin Executive Order 14042. The de-
fendants respond (Docs. 21, 26) in opposition.
BACKGROUND
1. Executive Order 14042
On September 9, 2021, President Biden announced his “Path Out of The Pan-
demic: COVID-19 Action Plan” and issued Executive Order 14042, titled “Ensuring
Adequate Safety Protocols for Federal Contractors.” By a several-step process, the
executive order requires each employee of a federal contractor or subcontractor (in-
cluding each subcontractor of a subcontractor, subcontractor of a subcontractor of a
Case 8:21-cv-02524-SDM-TGW Document 37 Filed 12/22/21 Page 2 of 38 PageID 627
subcontractor, and so forth) to become “fully vaccinated” against COVID-19. First,
Executive Order 14042 requires the Safer Federal Workforce Task Force, established
by another executive order in January 2021, to publish “guidance” that prescribes
“adequate COVID-19 safeguards” with which each employee of each federal con-
tractor, subcontractor, and so forth must comply. Executive Order 14042 states in
Section 5(b) that by September 24, 2021, the task force:
[S]hall, as part of its issuance of Task Force Guidance, provide
definitions of relevant terms for contractors and subcontractors
[and] explanations of protocols required of contractors and sub-
contractors to comply with workplace safety guidance[.]
Second, Executive Order 14042 states in Section 2(c) that after the task force
issues the guidance the Director of OMB “shall, as an exercise of the delegation of
[the President’s] authority under the Federal Property and Administrative Services
Act . . . determine whether such Guidance will promote economy and efficiency in
Federal contracting if adhered to by Government contractors and subcontractors.” If
OMB determines that the executive order promotes “economy and efficiency,” OMB
must publish the guidance in the Federal Register.
Third, Executive Order 14042 in Section 2(a) states, “Executive departments
and agencies, including independent establishments . . . shall, to the extent permitted
by law, ensure that contracts and contract-like instruments . . . include a clause”
specifying “that the contractor or subcontractor shall, for the duration of the con-
tract, comply” with task force guidance that OMB approves. Executive Order 14042
applies expansively “to any new contract; new contract-like instrument; new
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solicitation for a contract or contract-like instrument; extension or renewal of an ex-
isting contract or contract-like instrument; and exercise of an option on an existing
contract or contract-like instrument” that “is a procurement contract or contract-like
instrument for services, construction or a leasehold interest in real property”; “is a
contract or contract-like instrument for services”; “is a contract or contract-like in-
strument for concessions”; or “is a contract or contract-like instrument entered into
with the Federal Government in connection with Federal property or lands and re-
lated to offering services for Federal employees, their dependents, or the general pub-
lic.”
Further, Executive Order 14042 requires each covered contractor to include in
each subcontract at “any tier” the clause requiring compliance with the task force’s
guidance. However, Executive Order 14042 in Section 5(b) excludes, among other
things, grants and contracts and subcontracts not exceeding the “simplified acquisi-
tion threshold” of $250,000. Executive Order 14042 under Section 6 “is effective im-
mediately and shall apply” to contracts executed, exercised, extended, renewed, or
modified after October 15, 2021.
Fourth, although “effective immediately” and directing each agency to include
the compliance clause in every procurement contract, Executive Order 14042 re-
quires the Federal Acquisition Regulatory Council, an entity charged under
41 U.S.C. § 1303 with establishing “a single Government-wide procurement regula-
tion,” to “amend” the Federal Acquisition Regulation (FAR) to “provide for
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inclusion [of the compliance clause] in Federal procurement solicitations and con-
tracts subject to this order.”
In sum, the executive order (1) requires the task force to prepare “guidance”
about “adequate COVID safety protocols,” (2) requires the Director of OMB to de-
termine whether the guidance “promotes economy and efficiency,” (3) requires each
federal agency to include in federal contracts a clause requiring compliance with the
task force’s guidance if approved by OMB, and (4) directs separately the FAR Coun-
cil to amend the FAR to include the clause requiring compliance with task force
guidance approved by OMB. In effect, the executive order requires inclusion of a
contract clause that serves as a vehicle through which approved task force guidance
and any amendments approved by OMB become binding on private parties and their
employees, including those who directly contract with the government and those
who contract with those who contract with the government and so forth without
bound until a contract fails to exceed the $250,000 threshold.
2. The task force’s guidance
On September 24, 2021, the task force issued “COVID-19 Workplace Safety:
Guidance for Federal Contractors and Subcontractors.” The guidance states that
“[o]ne of the main goals” of President Biden’s “Path Out of the Pandemic:
COVID-19 Action Plan” is “to get more people vaccinated” and that “[a]s part of
that plan, the President signed Executive Order 14042.”
The task force’s guidance requires “covered contractor employees” to become
“fully vaccinated” against COVID-19 by December 8, 2021, or by the “first day of
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the period of performance” on “a newly awarded covered contract” or on “an exer-
cised option or extended or renewed contract[.]” Under the guidance, “full vaccina-
tion” against COVID-19 occurs two weeks after an employee receives a single-dose
vaccine or the final dose of a two-dose vaccine. But an employee is “required to be
vaccinated” even if the employee recovered from an earlier COVID-19 infection or
received a positive antibody test.1
The guidance defines “covered contractor employee” to mean “any full-time
or part-time employee of a covered contractor” (1) “working on or in connection
with a covered contract” or (2) “working at a covered contractor workplace” even if
the employee is not “working on or in connection with a covered contract.” The
guidance defines “covered contract” to mean “any contract or contract-like instru-
ment that includes the clause” required by the expansive scope of Section 5(a) of Ex-
ecutive Order 14042.
The guidance explains that an employee works “in connection with” a cov-
ered contract if the employee “perform[s] duties necessary to the performance of the
covered contract” even if the employee is “not directly engaged in performing the
specific work called for by the covered contract, such as human resources, billing,
and legal review[.]” An employee working “in connection with” a covered contract
must become fully vaccinated even if working exclusively from home and “never
1
The guidance acknowledges that the requirement to receive a booster injection will “be
considered by the Task Force and OMB for possible updating of this Guidance.”
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work[ing] at either a covered contractor workplace or Federal workplace during the
performance of the contract.”
The guidance defines “covered contractor workplace” to include (1) a “Fed-
eral workplace,” meaning “any place, site, installation, building, room, or facility in
which any Federal executive department or agency conducts official business, or is
within an executive department or agency’s jurisdiction, custody, or control” and
(2) “a location controlled by a covered contractor” at which “any employee working
on or in connection with a covered contract is likely to be present during the period
of performance for a covered contract.” A location remains a “covered contractor
workplace” even if entirely outdoors.
Further, the guidance requires the contractor to include the clause in subcon-
tracts and states:
The prime contractor must flow the clause down to first-tier
subcontractors; higher-tier subcontractors must flow the clause
down to the next lower-tier subcontractor, to the point at which
subcontract requirements are solely for the provision of
products.
(Guidance at 12)
In sum, an employee working “in connection with” a federal contract must be-
come fully vaccinated even if the employee works exclusively from home. And an
employee not working in connection with a federal contract must nonetheless be-
come fully vaccinated unless, as the guidance elaborates, the employer “can affirma-
tively determine” that the employee “will not come into contact with a covered con-
tractor employee,” including contact “through use of common areas such as lobbies,
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security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas,
and parking garages.”
Also, the task force’s guidance imposes masking and physical distancing re-
quirements. An unvaccinated employee isolated from employees working “on or in
connection with” a federal contract nonetheless “must wear a mask . . . regardless of
the level of community transmission in the area” and must “[t]o the extent practica-
ble . . . maintain a distance of at least six feet from others at all times, including in of-
fices, conference rooms, and all other communal work spaces.”
The masking and physical distancing requirements apply even to a non-em-
ployee visiting a location controlled by the contractor. Further, the guidance re-
quires a fully vaccinated employee to “wear a mask in indoor settings” if the em-
ployee is “[i]n areas of high or substantial community transmission” according to the
COVID-19 Integrated County View. On December 21, 2021, CDC’s Integrated
County View showed that 78.86% of counties in the United States have “high” com-
munity transmission and 12.17% of counties in the United States have “substantial”
community transmission. (https://covid.cdc.gov/covid-data-tracker/#county-
view). Accordingly, in approximately 91% of counties in the United States an em-
ployee working at a location controlled by a federal contractor must wear a mask
even if fully vaccinated.
3. The Director of OMB’s First Determination
On September 28, 2021, four days after the task force issued the vaccination
guidance, the Director of OMB in accord with Section 2(c) of Executive Order 14042
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issued a three-sentence notice of determination, 86 FR 53691, finding “that compli-
ance by Federal contractors and subcontractors with the COVID-19-workplace safety
protocols detailed in that guidance will improve economy and efficiency by reducing
absenteeism and decreasing labor costs for contractors and subcontractors working
on or in connection with a Federal Government contract.” Because of the OMB Di-
rector’s notice of determination, the task force’s guidance became effective within the
compliance clause, which Executive Order 14042 requires each agency to include in
federal contracts exceeding $250,000. The determination offers no opportunity for
notice and comment and is effective immediately.
4. The FAR Council Memorandum
Besides directing each agency to include the compliance clause in federal con-
tracts, Executive Order 14042 directs the FAR Council to conduct rulemaking to
amend the FAR to include the compliance clause. Pending the rulemaking, Execu-
tive Order 14042 requires the FAR Council to prepare a clause that each agency
must implement by “deviation” from the FAR (that is, until the FAR Council
amends the FAR to include the compliance clause).
On September 30, 2021, the FAR Council published the “deviation” clause
that agencies must include:
The Contractor shall comply with all guidance, including guid-
ance conveyed through Frequently Asked Questions, as
amended during the performance of this contract, for contractor
or subcontractor workplace locations published by the Safer
Federal Workforce Task Force (Task Force Guidance) at
https:/www.saferfederalworkforce.gov/contractors . . . .
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Also, the FAR Council’s clause states that the contractor “shall include the substance
of this clause . . . in subcontracts at any tier that exceed the simplified acquisition
threshold, as defined in [FAR] 2.101 on the date of subcontract award[.]”
5. The Director of OMB’s Second Determination
On November 10, 2021, the task force “updated” the guidance, 86 FR 63418,
to extend the vaccination deadline from December 8, 2021, to January 18, 2022. On
November 16, 2021, the Director of OMB in a notice of determination states that the
updated guidance “promote[s] economy and efficiency in Federal contracting” and
“rescinds and supersedes” the first notice of determination. Unlike the first notice of
determination, the second notice of determination at 86 FR 63422 states that
COVID-19 infection hinders “efficiency and economy in federal contracting” be-
cause “[w]orkers unable to work generate substantial costs on employers,” which
costs the employers “would be expected to . . . pass[] on to the Federal Government,
either in direct cost or lower quality, including delays.” Although acknowledging
“anecdotal reports suggest[ing] that vaccine mandates may lead some workers to quit
their jobs rather than comply, which could create some cost associated with replacing
them,” the second notice of determination at 86 FR 63423 claims to “know of no
systematic evidence that this has been a widespread phenomenon, or that it would be
likely to occur among employees of Federal contractors.”
Also, unlike the first notice of determination, the second notice of determina-
tion states that “urgent and compelling circumstances justify departing from the no-
tice-and-comment and delayed-effective-date requirements in 41 U.S.C. [§] 1707,”
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which states that “a procurement policy, regulation, procedure, or form . . . may not
take effect until 60 days after it is published for public comment in the Federal Regis-
ter” unless “urgent and compelling circumstances make compliance with the require-
ments impracticable.” The second notice of determination contends that 41 U.S.C.
§ 1707 remains inapplicable because the Director of OMB acts through a delegation
of presidential authority under 3 U.S.C. § 301 (authorizing the president to empower
the head of any agency “to perform . . . any function which is vested in the President
by law”) to determine whether the task force’s guidance promotes economy and effi-
ciency in federal contracting. Despite the putative inapplicability of 41 U.S.C.
§ 1707, the second notice of determination contends that “urgent and compelling”
circumstances exist because, according to OMB, the guidance “is critical to avoiding
worker absence and unnecessary labor costs.”
Also, because the task force extended the vaccination deadline from Decem-
ber 8, 2021, to January 18, 2022, the second notice of determination contends that
delayed effectiveness would result in the task force’s December 8, 2021 deadline re-
maining in effect and as a practical matter would nullify the deadline extension. In
other words, the second notice of determination contends that the need immediately
to effect the deadline extension warrants waiving an opportunity for the public to
fully comment on the mandatory vaccination of almost every employee of every cov-
ered contractor, subcontractor, subcontractor of a subcontractor, and so forth. Fi-
nally, the second notice of determination finds that complying with the sixty-day de-
layed-effectiveness requirement of 41 U.S.C. § 1707 results in the January 18, 2022
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deadline’s becoming legally effective not sooner than January 9, 2022 (that is, sixty
days after December 8, 2021), a day beyond which, according to OMB, the deadline
“would fundamentally undermine the effort to provide private companies with
aligned deadlines and regulatory certainty.” In other words, the second notice of de-
termination contends that delayed effectiveness — a procedural safeguard that af-
fords a federal contractor an opportunity to adapt to the requirements of an impend-
ing rule — interferes with OMB’s avowed goal of affording “regulatory certainty.”
Because of the Director of OMB’s second notice of determination, the task force’s
updated guidance and extended deadline became effective immediately.
6. Florida’s claims
On October 28, 2021, Florida sued (Doc. 1), and on November 2, 2021, Flor-
ida moved (Doc. 10) for a preliminary injunction. After the Director of OMB re-
scinded the first notice of determination and issued a second notice of determination,
Florida amended (Doc. 23) the complaint and amended (Doc. 24) the motion for
preliminary injunction. In Counts I–IX, Florida claims that the Director of OMB’s
first notice of determination, the second notice of determination, and the FAR Coun-
cil’s guidance each exceeds legal authority, violates notice and comment require-
ments, and constitutes arbitrary and capricious agency action. In Count X, Florida
claims that the President acted ultra vires. In Count XI, Florida claims that the “im-
plementation” of Executive Order 14042 violates the APA. In Count XII, Florida
claims that the President exercises an unconstitutionally delegated legislative power.
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In Count XIII, Florida claims an unconstitutional exercise of Congress’s spending
power. In Count XIV, Florida demands a declaratory judgment.
STANDING
The defendants insist that Florida possesses no constitutional “standing.” Ac-
cording to the defendants, Florida fails to plead “how it has been harmed at all,
much less that it faces irreparable harm.” (Doc. 21 at 2) First, the defendants argue
that Florida’s contracts fall below the $250,000 “simplified acquisition threshold.”
According to the defendants, each contract on which Florida relies for standing re-
mains exempt from the executive order. Second, the defendants argue that “other
than contracts that Florida has already agreed to modify, Florida provides no evi-
dence that it is a party to a federal contract that already has this clause, or a party to
an existing covered contract that is up for an option, extension, or renewal that must
include the challenged clause.” (Doc. 21 at 2–3) Third, the defendants argue that
Florida fails to “identify any specific solicitations that it plans to bid on or contracts
that it plans to enter” in the “immediate future.” (Doc. 21 at 2)
In reply, Florida argues that the amended complaint “clearly establishes stand-
ing and irreparable harm.” (Doc. 24 at 23) First, Florida alleges a “sovereign in-
jury.” (Doc. 24 at 24) On November 18, 2021, Florida enacted Section 112.0441,
Florida Statutes, which bans a vaccination requirement by a public employer and
Section 381.00317, Florida Statutes, which bans a vaccination requirement by a pri-
vate employer. According to Florida, because the challenged agency action compels
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every federal contractor in the state to violate state law, the state suffers an irrepara-
ble injury to state sovereignty.
Second, Florida insists the state suffers an immediate economic injury from
contracting “as a matter of course” with the federal government. (Doc. 24 at 24)
Florida identifies a host of existing contracts and pending proposals subject to the ex-
ecutive order. (Doc. 24 at 24–25) The amended complaint alleges that Space Flor-
ida, an arm of the state, holds “several contracts with NASA.” (Doc. 23 at 17) This
group of “several contracts” includes contracts for leasing land to NASA and con-
tracts for rendering services to NASA. (Doc. 23 at 17) Next, Florida identifies pend-
ing solicitations by the University of Florida to contract with the federal government.
Florida appends (Doc. 24-3 at 2) the affidavit of a University of Florida officer, who
states that since October 15, 2021, the university has submitted “approximately
thirty-seven proposals for new federal research contracts or subcontracts, which, if
awarded, would total approximately $10.5 million.” On November 29, 2021, the
University of Florida awaited “sponsor decision” for about a hundred proposals “for
research funding through federal contracts with total requested budget of approxi-
mately $50 million.” (Doc. 24-3 at 2) Further, the University of Florida intends to
submit throughout 2022 additional proposals for federal research contracts.
The parties intermingle precedent discussing injury-in-fact with precedent dis-
cussing prudential standing, including cases discussing parens patriae capacity. Con-
stitutional standing and prudential standing remain distinct. Elend v. Basham, 471
F.3d 1199, 1206 (11th Cir. 2006). Article III imposes the requirement of
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constitutional standing, the “irreducible [] minimum” requirement that a plaintiff
must allege an injury-in-fact that is fairly traceable to the defendant’s allegedly un-
lawful conduct and that is likely redressable by the requested relief. Lujan v. Defenders
of Wildlife, 504 U.S. 550, 560–61 (1992). “Beyond the constitutional requirements,”
the federal judiciary imposes "a set of prudential principles that bear on the question
of standing.” Valley Forge Christian Coll. v. Americans United for Separation of Church
and State, Inc., 454 U.S. 464, 474 (1982); Bennett v. Spear, 520 U.S. 154, 162 (1997);
Service Employees Int’l Union Health and Welfare Fund v. Philip Morris, Inc., 249 F.3d
1068, 1073 (D.C. Cir. 2001) (“[T]he doctrine of parens patriae is merely a species of
prudential standing[.]”).
“Like the prudential component, the constitutional component of standing
doctrine incorporates concepts concededly not susceptible of precise definition.” Al-
len v. Wright, 468 U.S. 737, 751 (1984), abrogated by Lexmark Int'l, Inc. v. Static Control
Components, Inc., 572 U.S. 118 (2014); Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150, 153 (1970) (“Generalizations about standing to sue are largely worth-
less as such.”); William Fletcher, The Structure of Standing, 98 Yale L.J. 221, 221
(1988) (“The structure of standing law in the federal courts has long been criticized
as incoherent.”).
But reasonably constant principles of constitutional standing appear. To pre-
sent a justiciable case or controversy for a preliminary injunction, the complaint
“must show a sufficient likelihood” that Florida “will be affected by the allegedly un-
lawful conduct in the future.” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,
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1328 (11th Cir. 2013) (quotation marks omitted). Showing a “sufficiently likeli-
hood” requires “a real and immediate — as opposed to a merely conjectural or hypo-
thetical — threat of future injury.” Shotz v. Cates, 256 F.3d 1077, 1082 (11th Cir.
2001).
In addition to satisfying the constitutional standing requirement, “a plaintiff
may have to satisfy several prudential principles.” Chiles v. Thornburgh, 865 F.2d
1197, 1204 (11th Cir. 1989). “States are not normal litigants for the purposes of in-
voking federal jurisdiction.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007). Still, a
state can sue “in a number of different capacities — and sometimes in more than one
capacity in a single litigation.” R. Fallon, J. Manning, D. Meltzer, & D. Shapiro,
Hart & Wechsler’s The Federal Courts and The Federal System 279 (7th ed. 2015); Erwin
Chemerinsky, Federal Jurisdiction 125 (8th ed. 2021) (“[A] distinction must be drawn
between a government entity suing to remedy injuries it has suffered and suing in a
representative capacity on behalf of its citizens.”). For examples, a state has standing
to challenge (1) “an injury to some proprietary interest[,]” (2) “an injury to its sover-
eign interest, that is its ability to exercise its power[,]” or (3) “[an] injury to its quasi-
sovereign interest, or its parens patriae interest.” Chiles, 865 F.2d at 1208 (citing Alfred
L. Snapp v. Puerto Rico, 458 U.S. 592, 609 (1982)).
1. Florida’s proprietary interest
“There is no difficulty in recognizing [a state’s] standing to protect proprietary
interests or sovereign interests.” 13B Wright & Miller, Federal Practice & Procedure
§ 3531.11.1 (3d ed. 2008). A state’s proprietary interests include “participat[ing] in a
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business venture” and extend to interests that are the same as a similarly situated pri-
vate proprietor. Alfred L. Snapp, 458 U.S. at 601.
If a claim challenges an impediment to future contracting opportunity, a plain-
tiff demonstrates an immediate injury by showing “that sometime in the relatively
near future [the plaintiff] will bid on another Government contract[.]” Adarand Con-
structors, Inc. v. Pena, 515 U.S. 200, 211 (1995). The defendants challenge that “what
a new or renewed contract might require” in the future “is a matter of pure specula-
tion.” (Doc. 21 at 10) But immediacy “requires only that the anticipated injury oc-
cur with some fixed period of time in the future, not that it happen in the colloquial
sense of soon or precisely within a number of days, weeks, or months.” Florida State
Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008); Adarand
Constructors, 515 U.S. at 211–12 (holding that a plaintiff likely to suffer injury within
a year enjoys standing).
Florida demonstrates a strong likelihood of immediate injury resulting from
the inability to modify existing contracts and the possible denial of proposals cur-
rently submitted to the defendants. Out of the University of Florida’s thirty-seven
proposals (with a sum of $10.5 million) submitted since October 15, 2021, at least
one necessarily (that is, mathematically) must qualify as a covered contract. Simi-
larly, of the hundred (approximately) contracts (with a sum of approximately $50
million) awaiting a sponsor’s decision, at least one necessarily (that is, mathemati-
cally) must qualify as a covered contract. Further, as Florida’s counsel confirmed
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without dispute during a December 7, 2021 hearing, the proposed contracts are not
“grants” exempted by Executive Order 14042.
As Florida’s reply shows, the University of Florida, for example, is trapped in
a bind. If the federal government awards a contract proposal subject to the executive
order, the university’s compliance with the mandatory clause will conflict with the
university’s duty to obey state law prohibiting a vaccination requirement. Florida in-
sists persuasively that the state’s inability under state law to modify existing contracts
by including the proposed deviation clause will result in the federal government’s un-
willingness to renew or enter contracts with Florida. For example, the GSA
“strongly encouraged” acceptance of the deviation and emphasized, “[t]he modifica-
tion is mandatory before GSA will renew, extend the period of performance, . . . or
exercise an option, as applicable.” (Doc. 24-1 at 2) (emphasis in original) Also,
Florida cites to an e-mail in which NASA’s procurement office states that under the
proposed deviation, “we are required to incorporate these clauses into the current
contract.” (Doc. 10-4 at 6) As President Biden announced plainly and forcefully to
all, “If you want to do business with the federal government, vaccinate your work-
force.” Remarks by President Biden on Fighting the COVID-19 Pandemic, White House
(Sept. 9, 2021).
Florida demonstrates an immediate threat to a substantial source of income
for the state. Absent a preliminary injunction, the defendants’ challenged actions
will force each state agency to comply with Florida law and lose existing and pro-
spective contracts. If a state agency forgoes the opportunity to contract with the
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federal government, no judicial relief can remedy the loss. Even a state agency’s hes-
itation — in deference to state law — to acquiesce to the defendant’s request to mod-
ify an existing contract might sour and end present and prospective contracts that
benefit Florida and the nation. Florida shows a strong likelihood of suffering an in-
jury-in-fact traceable to the challenged executive action and redressable by a favora-
ble decision. This proprietary injury, rooted in existing and proposed contracts be-
tween Florida and the defendants, satisfies any prudential hurdle also.
2. Florida’s sovereign interest
Because Florida’s economic injury satisfies the constitutional and prudential
requirements for standing, Florida need not establish another basis for standing. But,
continuing to that end, Florida argues persuasively that the state enjoys standing to
protect against a “sovereign injury.” (Doc. 10 at 23, Doc. 24 at 23–24) The task
force’s guidance — by the peculiar and condescending mechanism of an answer to a
“FAQ” or “frequently asked question” — purports to “supersede any contrary state
or local law.” (Guidance at 13) Florida’s legislature passed and Florida’s governor
signed Sections 112.0441 and 308.00317, Florida Statutes, which together ban public
and private employers from implementing a vaccination mandate. In Florida’s view,
this federal action infringes the state’s sovereign interests and interferes with the im-
plementation of public policy. As a result, Florida claims a parens patriae capacity “to
protect quasi-sovereign interests — i.e., public or governmental interests that concern
the state as a whole.” Massachusetts v. EPA, 549 U.S. at 520 n.17 (internal quotations
omitted).
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In opposition, the defendants (1) argue that Florida cannot sue in a parens pa-
triae capacity because Florida suffers no injury and (2) urge that “a state does not
have standing as parens patriae to sue the federal government to vindicate the rights of
[the state’s] citizens.” Chiles v. Thornburgh, 865 F.2d at 1209. But the defendants in-
termingle the requirements of establishing a constitutional injury-in-fact with pruden-
tial requirements and exaggerate the limits on a state’s parens patriae capacity.
The judiciary characterizes parens patriae as a prudential limitation to standing.
People’s Counsel v. FERC, 760 F.2d 318, 320–22 (D.C. Cir. 1985) (defining parens pa-
triae as a component of prudential standing rather than constitutional standing).
“Far from being a substitute for Article III injury, parens patriae actions raise an addi-
tional hurdle for a state litigant: the articulation of a ‘quasi-sovereign interest’ ‘apart
from the interests of particular private parties.’” Massachusetts v. EPA, 549 U.S. at
538 (Roberts, C.J., dissenting) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458
U.S. 592, 607 (1982)). As Florida correctly insists, federal executive action that ad-
versely affects Florida’s economy and that violates federal law governing procure-
ment and administrative procedure amounts to a constitutional injury. See Alabama
v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1130 (11th Cir. 2005) (holding a state suf-
fers a constitutional injury if federal government action that “violates federal law
may adversely impact the environment and economy”). Satisfying constitutional
standing, Florida must still demonstrate that the state can overcome prudential
standing to vindicate a quasi-sovereign injury against the federal government.
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Massachusetts v. EPA disposes of any notion that prudential standing bars states
as parens patriae from suing the federal government. 549 U.S. at 520 n.17. The de-
fendants point to Massachusetts v. Mellon’s reasoning that “[w]hile the State, under
some circumstances, may sue in [parens patriae] capacity for the protection of its citi-
zens, it is no part of its duty or power to enforce their rights in respect of their rela-
tions with the Federal Government. In that field it is the United States, and not the
State, which represents them as parens patriae.” Massachusetts v. Mellon, 262 U.S. 447,
485–86 (1923) (internal citation omitted); see also Alfred L Snapp & Son, 458 U.S. at
610 n.16. But Mellon stops short of categorically denying a state as parens patriae from
suing the federal government. Mellon, 262 U.S. at 485 (“We need not go so far as to
say that a state may never intervene by suit to protect its citizens against any form of
enforcement of unconstitutional acts of Congress; but we are clear that the right to do
so does not arise here.”).
Instead, “[a] distinct set of cases involves states as parens partriae suing not
other states or private parties but rather the federal government or its officials. The
decisions seem to depend in part upon the kind of claim that the state advances, but
they are hard to reconcile.” Fallon, R. et al., Hart & Wechsler’s The Federal Courts and
The Federal System 283; United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968
(2d Cir. 1984) (“Once quite limited, the concept of parens patriae standing has been
expanded to include actions in which a state seeks to redress quasi-sovereign inter-
ests, such as damage to its general economy or environment, even where the injury is
to a fairly narrow class of persons.”).
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Although defining quasi-sovereign interests as “a matter for case-by-case de-
velopment,” Alfred L. Snapp clarifies that a state at least enjoys “a quasi-sovereign in-
terest in the health and well-being — both physical and economic — of its residents
in general.” 458 U.S. at 607. Also, a state possesses “a quasi-sovereign interest in
not being discriminatorily denied its rightful status within the federal system.” Alfred
L. Snapp, 458 U.S. at 607. In other words, a state can sue to ensure “that the benefits
of the federal system are not denied to its general population.” Alfred L. Snapp, 458
U.S. at 607; see also Georgia v. Pa. R.R. Co., 324 U.S. 439 (1945) (authorizing Georgia
to sue “for her own injuries” as a “person” within the meaning of the Clayton Act).
Further, under Massachusetts v. EPA, a state enjoys standing if a statute, such as
the APA, confers on the state a procedural right to challenge potentially unlawful ac-
tion that infringes on the state’s sovereign interest. 549 U.S. at 520. Massachusetts v.
EPA notes “a critical difference between allowing a State ‘to protect her citizens from
the operation of federal statutes’ (which is what Mellon prohibits) and allowing a
State to assert its rights under federal law (which it has standing to do).” 549 U.S. at
520 n.17.
A state retains a sovereign interest in enacting and enforcing state law, and
“the inability to enforce . . . duly enacted [law] clearly inflicts” injury on the state.
Abbott v. Perez, 138 S. Ct. at 2324 n.17. For example, a state suffers sovereign injury
when a federal court enjoins the enforcement of state law, see Maryland v. King, 567
U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers); Abbott, 138 S. Ct. at 2324; Hand
v. Scott, 888 F.3d 1206, 1214 (11th Cir. 2018). Also, the state suffers sovereign injury
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when unlawful agency action preempts state law. See Kansas v. United States, 249
F.3d 1213, 1227–28 (10th Cir. 2001) (recognizing Kansas’s standing to challenge un-
der the APA an agency’s decision that a tract of land in Kansas constituted “Indian
lands” because the decision “plainly has a direct and immediate impact on the sover-
eign rights which . . . the State of Kansas exercise[s] over the tract); Florida v. Dept. of
Health & Human Servs., No. 21-14098, 2021 WL 5768796 at *31–33, (11th Cir. Dec.
6, 2021) (Lagoa, J., dissenting) (explaining that Florida suffers irreparable sovereign
injury from a likely unlawful mandate preempting Florida state law).
The uniform duty that the task force’s guidance imposes on each federal con-
tractor likely preempts Florida’s contrary state law. Boyle v. United Technologies Corp.,
487 U.S. 500, 504–10 (1988) (Scalia, J.). This preemption, along with the task
force’s claim that the guidance “supersede[s] contrary state and local law” and along
with the practical difficulty of enforcing a state law that directly conflicts with a uni-
form duty imposed on federal contractors, likely infringes Florida’s sovereign interest
in enforcing state law. Accordingly, because the APA confers on Florida a proce-
dural right to challenge the agency action causing this infringement, Florida likely
enjoys standing to bring this action under Massachusetts v. EPA.
In sum, the amended complaint sufficiently pleads a likelihood that Florida in-
curs an injury-in-fact that is traceable to allegedly unlawful conduct and that is re-
dressable by the requested relief. Further, Florida overcomes the prudential hurdle
for a state to sue the federal government. The complaint evinces Florida’s right to
sue in a proprietary capacity based on contracting with the federal government. In
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addition, Florida likely enjoys a sovereign interest capacity to sue the federal govern-
ment. Florida asserts a procedural right to challenge executive action and likely suf-
fers an injury based on an inability to enforce a duly enacted law. Executive Order
14042 directs stringent regulation, opposes state law, and risks widespread harm.
Florida enjoys a strong likelihood of standing.
LIKELIHOOD OF SUCCESS
1. Authority under FPASA
Florida argues that OMB’s determination that the guidance promotes “econ-
omy and efficiency in procurement” lacks legal effect because the Federal Procure-
ment and Administrative Services Act (FPASA) “contains no authority for the Presi-
dent to leverage the federal government’s procurement authorities into a nationwide
vaccine mandate[.]” (Doc. 10 at 13) The defendants respond that OMB’s determi-
nation satisfies the “lenient” standard of review under FPASA.
a. Presidential authority under FPASA
Enacted in 1949, FPASA, Title 40, Subtitle I, United States Code, creates the
General Services Administration (GSA) and establishes a system for federal procure-
ment. Section 121(a) authorizes the President to “prescribe policies and directives
that the President considers necessary to carry out this subtitle” but states that the
President’s policies “must be consistent with this subtitle,” which comprises chapters
entitled “General,” “Organization of [GSA],” “Property Management,” “Foreign
Excess Property,” “Urban Land Use,” “Selection of Architects and Engineers,” and
“Public Property.” These chapters collectively grant the president authority “over
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those larger administrative and management issues . . . that . . . should be used in or-
der to achieve a flexible management system capable of making sophisticated judg-
ments in pursuit of economy and efficiency.” AFL-CIO v. Kahn, 618 F.2d 784, 789
(D.C. Cir. 1979).
Because of the limited subject matter delineated in the chapters composing the
subtitle, presidents historically have relied on the “purpose” statement in Section
101, embedded in the “General” chapter, to require federal contracts to include a
clause requiring compliance unrelated to the chapters composing the subtitle. Sec-
tion 101 states, “The purpose of this subtitle is to provide the Federal Government
with an economical and efficient system for the following activities:”
(1) Procuring and supplying property and nonpersonal ser-
vices, and performing related functions including contracting,
inspection, storage, issue, setting specifications, identification
and classification, transportation and traffic management, es-
tablishment of pools or systems for transportation of Govern-
ment personnel and property by motor vehicle within specific
areas, management of public utility services, repairing and con-
verting, establishment of inventory levels, establishment of
forms and procedures, and representation before federal and
state regulatory bodies.
(2) Using available property.
(3) Disposing of surplus property.
(4) Records management.
Only sparse authority (none in the Eleventh Circuit) addresses the power of
the president to invoke FPASA’s “purpose” statement to require every federal
agency to extract from every federal contractor, subcontractor, and subcontractor of
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a subcontractor, and so forth submission to federal dictates that bear only a highly at-
tenuated and tenuous connection to the subjects of the subtitle.
For example, Kahn analyzes whether FPASA authorized President Carter to
direct (by executive order) inclusion of a clause that required compliance with an Of-
fice of Federal Procurement policy designed to suppress inflation by controlling wage
and price increases. Kahn finds a “sufficiently close nexus” between the required
clause and FPASA’s “touchstone” of “economy and efficiency” because the clause
“in the context of a negotiated contract . . . will likely have the direct and immediate
effect of holding down the Government’s procurement costs” and because the execu-
tive order directly “act[ed] to restrain procurement costs across the entire Govern-
ment.” Kahn, 618 F.2d at 793. However, Kahn “emphasize[s] the importance . . . of
the nexus between the wage and price standards and likely savings to the Govern-
ment” and forewarns, “[O]ur decision today does not write a blank check for the
President to fill in at his will.” Kahn, 618 F.2d at 793. Rather, the “procurement
power must be exercised consistently with the structure and purposes of the statute
that delegates that power.” Kahn, 618 F.2d at 793. For example, Kahn notes that at-
tempting to establish by executive order a proposed but unenacted labor law, ban-
ning from federal contracts a willful violator of the NLRA, “might raise serious ques-
tions about the validity of such an order.” Kahn, 618 F.2d at 793, n.50.
Liberty Mutual v. Friedman, 639 F.2d 164, 169 (4th Cir. 1981), analyzes
whether FPASA authorizes President Johnson’s Executive Order 11,246, which di-
rects certain federal contractors and subcontractors to include a clause requiring
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compliance with certain anti-discrimination and affirmative action measures. After
acknowledging criticism of Contractors Association v. Secretary of Labor, 442 F.2d 159
(3d Cir. 1981), which upholds application of Executive Order 11,246 to federally-as-
sisted construction contracts after finding that excluding minority workers from the
labor pool increases the cost of labor on federal contracts, Liberty Mutual “[a]ssume[s]
without deciding” that FPASA authorizes “some applications of Executive Order
11,246” but concludes “the authorization could validly extend no further than to
those applications satisfying the nexus test used in Contractors Association and Kahn.”
Liberty Mutual, 639 F.2d at 170. Rejecting the contention of other decisions declaring
that “equal employment goals themselves, reflecting important national policies, val-
idate the use of the procurement power in the context of [Executive Order 11,246],”
Liberty Mutual reasons:
[T]o the extent [this contention] reflects a considered rejection
of the requirement of nexus between Procurement Act purposes
and Executive Order objectives that we read in Contractors Asso-
ciation and Kahn and that we apply here, we simply disagree.
The plain implication of such a rejection would be that regula-
tions promulgated under an Executive Order that traces its law-
making authority to a particular statute need bear no relation to
the purposes of that authorizing statute so long as the regula-
tions bear relation to national policies reflected in other sources
common law, statutory, or constitutional. This would render
meaningless the simple, fundamental separation of powers re-
quirement, recently reasserted by the Supreme Court in Chrys-
ler, that such an “exercise of quasi-legislative authority by gov-
ernmental departments and agencies must be rooted in a grant
of (legislative) power by the Congress . . . ,” 441 U.S. at 302, 99
S.Ct. at 1718, and lie “reasonably within the contemplation of
that grant of authority.” [Chrysler], 99 S.Ct. at 1720.”
Liberty Mutual, 639 F.2d at 171.
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Holding that this “fundamental requirement” of executive power lying “rea-
sonably within the contemplation” of statutory authority “dictates application of the
sort of nexus test [applied] here,” Liberty Mutual finds “plain” that the executive or-
der’s application to an insurer “do[es] not lie ‘reasonably within the contemplation
of ’” this fundamental requirement. Liberty Mutual, 639 F.2d at 171. Further, Liberty
Mutual notes that Contactors Association benefited from a record of administrative find-
ings and public hearings, which showed that the exclusionary practices of trade un-
ions artificially restricted the labor pool; Liberty Mutual enjoyed the support of “no
such findings[.]” Liberty Mutual, 639 F.2d at 171.
b. Executive Order 14042 exceeds FPASA’s authorization.
Resolving similar challenges to Executive Order 14042, Kentucky, et al., v. Jo-
seph R. Biden, et al., 3:21-cv-55, ECF 50 (E.D. Ky. Nov. 11, 2021) (Van Tatenhove,
J.), Georgia, et al., v. Joseph R. Biden, et al., 1:21-cv-163, ECF 94 (S.D. Ga. Nov. 30,
2021) (Baker, J.), and Missouri, et al. v. Joseph R. Biden, et al., 4:21-cv-1300, ECF 36
(E.D. Mo. Dec, 20, 2021) (Noce, M.J.) hold that Executive Order 14042 exceeds
FPASA’s authorization. Because the record in this action presents only a threadbare
and conclusory rationalization that is incommensurate with the boundless expansive-
ness of the executive order’s application, with the invasiveness of the executive or-
der’s requirement, and with the intrusion of the executive order into a state preroga-
tive with which even Congress likely cannot interfere, I join Judges Van Tatenhove,
Baker, and Noce in Kentucky, Georgia, and Missouri in concluding that Executive Or-
der 14042 almost certainly exceeds the President’s authority under FPASA.
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A threadbare and conclusory rationalization
Announcing the task force’s guidance as promoting “economy and efficiency”
in procurement, OMB’s second notice of determination at 86 FR 63418 states that
the vaccination requirement and other safety measures “will decrease worker ab-
sence, reduce labor costs, and improve the efficiency of contractors and subcontrac-
tors performing work for the Federal Government.” COVID-19, however, appeared
in the United States almost two years ago, but OMB fails in the second notice to
identify any instance in which absenteeism attributable to COVID-19 among con-
tractor employees resulted in delayed procurement or increased costs also attributa-
ble to COVID-19. Although an executive order might enjoy flexibility to combat a
predicted disruption in procurement, the anticipation of which was based on history,
experience, and other fact-based reasons, the absence in the record of evidence sug-
gesting that in the last two years contractor absenteeism has impeded federal con-
tracting both discredits OMB’s second notice and suggests a ruse, a mere contriv-
ance, superficially attempting to justify a sweeping, invasive, and unprecedented pub-
lic health requirement imposed unilaterally by President Biden. In other words, alt-
hough the executive order purports to advance “economy” and “efficiency” by re-
ducing absenteeism, nothing in the executive order, the task force’s guidance, OMB’s
hollow notices of determination, or the defendants’ other papers advances an expla-
nation, much less a reasoned and persuasive explanation, commensurate with the ex-
pansiveness and invasiveness of Executive Order 14042. The extent of any absentee-
ism attributable to COVID-19 among contractors and subcontractors is unexplained.
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The frequency and duration of any procurement delay attributable to COVID-19 is
unexplained. The extent of any cost increases attributable to COVID-19 is unex-
plained. In other words, the extent of any procurement problem, past or future, at-
tributable to COVID-19 is undemonstrated and is merely a hastily manufactured but
unproven hypothesis about recent history and a contrived speculation about the fu-
ture. Obviously, no massive extension and expansion of presidential power is neces-
sary to cure a non-existent problem and certainly neither “good cause” nor “urgent
and compelling circumstances” exists to justify summary disregard of the require-
ments of administrative law and rulemaking.
The expansiveness of the executive order’s application
By requiring vaccination of private employees working “in connection with a
covered contract” or at a location controlled by a contractor or the federal govern-
ment, the executive order results in an application of dizzying expansiveness. Under
the definitions in the task force’s guidance, the executive order would require the
vaccination of, for example:
• a janitor who cleans the offices of a contractor’s legal department,
• an accountant who works exclusively from home,
• a student who works part-time in a contracting university’s library, and
• a lumberjack working on a federal logging contract.
That is, absent hermetic isolation, the likelihood that an employee of an entity that
happens to contract (or subcontract) with the federal government can remain unvac-
cinated appears trivial at most.
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Unlike the price controls in Kahn, which excepted a non-compliant contractor
if the controls would “threaten the contractor’s or subcontractor’s ability to survive,”
Executive Order 14042 requires each agency to include the vaccination clause with-
out exception and without consideration of the burden to which the vaccination
clause might subject a contractor and without consideration of the attenuated and
speculative benefit, if any, that vaccination of a contractor’s workforce might pro-
duce for procurement. Further, by requiring inclusion of the vaccination clause in
each subcontract (at any tier), the vaccination requirement, extending and repeating
like a fractal, yields results utterly detached from the proffered (but fatally flawed)
“finding.” No item in the executive order, the task force’s guidance, OMB’s notice
of determination, or the defendants’ papers tethers the expansive and monolithic ap-
plication of the vaccination requirement to documented need to reduce absenteeism
among federal contractors’ employees or to solve any real problem in procurement.
The invasiveness of the executive order’s imposition
Unlike the executive order in Kahn, which requires contractors to comply with
price controls (directly related to the price of procurement); unlike the executive or-
der in Liberty Mutual, which requires contractors to comply with prohibitions on ra-
cially exclusionary hiring (required by the law); unlike the executive order in Chamber
of Commerce of U.S. v. Napolitano, 648 F.2d 726, which requires contractors to use a
program to verify the lawfulness of immigration status (established by law); and un-
like the executive order in UAW-Lab. Emp. & Training Corp. v. Chao, 325 F.2d 360
(D.C. 2003), which requires contractors to post notices about the statutory right to
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decline union membership (informing employees of a legal right); Executive Order
14042 compels employees to accept injection of a COVID-19 vaccine — not demon-
strably connected to procurement and not required by federal or state law — or else
confront termination of employment.
The intrusion of the executive order into state affairs
By requiring the vaccination of employees of contractors and subcontractors,
Executive Order 14042 intrudes into a matter traditionally committed to the state.
Under the Tenth Amendment to the Constitution, “The Powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to
the States, respectively, or to the people.” A power not delegated includes the state’s
police power, which “is defined as the authority to provide for the public health,
safety, and morals” of the state’s population. Barnes v. Glen Theatre, Inc., 501 U.S.
560, 569 (1991). The state’s police power entails authority over compulsory vaccina-
tion. See Zucht v. King, 260 U.S. 174, 176 (1922) (“Long before this suit was insti-
tuted, Jacobson v. Massachusetts . . . had settled that it is within the police power of a
state to provide for compulsory vaccination.”).
Dissenting from a non-precedential order denying an injunction pending ap-
peal in a challenge to the Center for Medical Service’s vaccination requirement for
healthcare workers and others, Judge Logoa writes compellingly:
The [CMS] mandate, thus, is a federal foray into an area histor-
ically understood as a core power of the States and significantly
alters the balance of power between them and the federal gov-
ernment. I find no such clear statement from Congress in any of
the statutory sections relied on by CMS to justify this intrusion
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by a federal agency into the police power traditionally reserved
to the States.
Florida v. Dept. of Health & Human Servs., No. 21-14098, 2021 WL 5768796, at *29
(11th Cir. 2021). Further, no constitutional provision likely authorizes Congress to
intrude into the state’s authority over compulsory vaccination. Congress likely can-
not invoke the Commerce Clause to compel vaccination because “[a] person’s choice
to remain unvaccinated and forgo regular testing is noneconomic inactivity. . . . The
Commerce Clause power may be expansive, but it does not grant Congress the
power to regulate noneconomic inactivity traditionally with the States’ police
power.” BST Holdings, L.L.C. v. Occupational Safety & Health Admin., 17 F.4th 604,
617 (5th Cir. 2021); United States v. Lopez, 514 U.S. 549, 584 (Thomas, J., concurring)
(“[W]e always have rejected readings of the Commerce Clause . . . that would permit
Congress to exercise a police power.”) Quoted by Judge Lagoa in Florida v. Dept. of
Health & Human Servs., Chief Justice Roberts explains:
People, for reasons of their own, often fail to do things that
would be good for them or good for society. Those failures—
joined with the similar failures of others—can readily have a
substantial effect on interstate commerce. Under the Govern-
ment’s logic, that authorizes Congress to use its commerce
power to compel citizens to act as the Government would have
them act.
That is not the country the Framers of our Constitution envi-
sioned. James Madison explained that the Commerce Clause
was “an addition which few oppose and from which no appre-
hensions are entertained.” The Federalist No. 45, at 293. While
Congress’s authority under the Commerce Clause has of course
expanded with the growth of the national economy, our cases
have “always recognized that the power to regulate commerce,
though broad indeed, has limits.” Maryland v. Wirtz, 392 U.S.
183, 196 (1968).
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NFIB v. Sebelius, 567 U.S. 519, 554 (2012). And although the Spending Clause might
authorize the conditioning of federal money on the acceptance of a vaccination re-
quirement, Congress must express the condition “unambiguously.” See Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). That Congressional expres-
sion, even assuming the Constitution permits, remains neither requested nor granted
(and, given a recent vote in the Senate, appears unavailable).
In this action, the President — not Congress — purports to require by contract
the vaccination of employees of contractors and subcontractors. Because the execu-
tive branch intends the “federal encroachment upon a traditional state power” and
invokes “the outer limits of Congress’ power, we expect a clear indication that Con-
gress intended that result.” Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of
Eng’rs, 531 U.S. 159, 172 (2001). The defendants identify no section of FPASA
demonstrating that Congress “clearly intended” to authorize the President (assuming
Congress can) to impose a public health requirement as a condition of a contractor’s
supplying services.
Of course, the defendants maintain that contractors remain free to refuse to
contract with the world’s largest buyer of goods and services. But because the Presi-
dent must rely, at best, on Congress’s authorization under FPASA, the President’s
attempt to impose under FAPSA a requirement both that Congress itself likely lacks
the power to impose and that traditionally remains textually committed by the Con-
stitution to the states demands a rationale beyond that required for the posting of
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notices in the workplace, the use of a centralized employment eligibility system, and
the like.
* * *
Kahn confirms that FPASA confers no “blank check for the President to fill in
at his will” and requires power to “be exercised consistently with the structure and
purposes” of FPASA. And Liberty Mutual confirms that the exercise of power under
FPASA must lie “reasonably within the contemplation” of the grant of authority.
Because the record presents only a feeble rationalization incommensurate with the
expansiveness of the executive order’s application, with the invasiveness of the exec-
utive order’s requirement, and with the intrusion of the executive order into a state
prerogative into which Congress likely cannot intrude, Executive Order 14042 likely
exceeds the structure and purpose of FPASA and falls outside Congress’s contem-
plated grant of authority under FPASA.
2. Procedural challenges
In addition to challenging Executive Order 14042 as exceeding the President’s
authority under FPASA, Florida asserts procedural, APA, and similar challenges to
the Executive Order, to OMB’s first and second notice of determination, and to the
FAR Council’s memorandum, among other things. Some of these challenges could
fail for the reasons identified in Kentucky, et al., v. Joseph R. Biden, et al., 3:21-cv-55,
ECF 50 at 20–28 (E.D. Ky. Nov. 11, 2021). However, a December 9, 2021 order
(Doc. 31) permits supplemental briefing on whether, among other things, the proce-
dural requirements of 41 U.S.C. § 1707 apply to an agency implementing class-wide
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deviations to implement Executive Order 14042. Accordingly, the motion for a pre-
liminary injunction based on claims other than whether the President exceeded his
authority under FPASA will remain under advisement pending the review of further
briefing.
IRREPARABLE HARM
Florida must also demonstrate a substantial likelihood that the challenged ac-
tion will inflict irreparable harm. As the defendants note, “An injury is ‘irreparable’
only if it cannot be undone through monetary remedies.” Northeastern Fla. Chapter of
Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.
1990); see also Sampson v. Murray, 415 U.S. 61, 90 (1974) (“The possibility that ade-
quate compensatory or other corrective relief will be available at a later date, in the
ordinary course of litigation, weighs heavily against a claim of irreparable harm”).
To that end, Florida asserts that absent an injunction the state (1) will suffer an irrep-
arable economic injury because sovereign immunity precludes monetary recovery
and (2) will suffer an irreparable sovereign injury because the defendants’ actions
conflict with state law. The defendants oppose both grounds.
First, the defendants argue that even if Florida loses a contract, no irreparable
harm results. The defendants point to the Contract Disputes Act and insist that un-
der 28 U.S.C. § 1491(b)(1)–(2) Florida “would have ample opportunity” to sue for
monetary redress. (Doc. 21 at 34) Under 28 U.S.C. § 1491(b)(1), a district court:
[S]hall have jurisdiction to render judgment on an action by an
interested party objecting to a solicitation by a Federal agency
for bids or proposals for a proposed contract or to a proposed
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award or the award of a contract or any alleged violation of
statute or regulation in connection with a procurement or a pro-
posed procurement. Both the United States Court of Federal
Claims and the district courts of the United States shall have ju-
risdiction to entertain such an action without regard to whether
suit is instituted before or after the contract is awarded.
But 28 U.S.C. § 1491(b)(2) limits the available relief. Section 1491(b)(2) permits a
district court to “award any relief that the court considers proper, . . . except that any
monetary relief shall be limited to bid preparation and proposal costs.” Because rec-
ompense for bid preparation and proposal costs falls short of adequately compensat-
ing Florida for lost contracts (likely worth millions of dollars), 28 U.S.C.
§ 1491(b)(1)–(2) provides no corrective relief and Florida shows a likelihood of irrep-
arable economic injury.
Florida asserts that the defendants’ actions “seek to compel every federal con-
tractor in the State to violate state law” and thus cause a sovereign injury. (Doc. 24
at 24) The defendants maintain that Florida suffers no sovereign injury and argue
that nothing in Executive Order 14042 purports to compel a contractor to violate
state law. Although the defendants urge that the executive order merely “directs fed-
eral-contracting policy,” the defendants state that “to the extent state law interferes
with a federal contract, state law does not apply.” (Doc. 26 at 14)
As noted in the standing discussion, a state’s “inability to enforce [the state’s]
duly enacted plans clearly inflicts irreparable harm on the State.” Abbott v. Perez, 138
S. Ct. 2305, 2324 n.17 (2018); see also Maryland v. King, 567 U.S. 1301, 1303 (2012)
(Roberts, C.J., in chambers) (explaining that a state “suffers a form of irreparable in-
jury” if enjoined “from effectuating statutes enacted by representatives of its
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people[.]”) (internal quotations omitted). The task force guidance prescribes a vac-
cination requirement that Sections 112.0441 and 308.00317, Florida Statutes, pro-
hibit. Florida demonstrates a likely irreparable harm to sovereign interests absent a
stay.
PUBLIC INTEREST
Finally, the balance of the harms and public interest support preliminarily en-
joining the vaccine requirement because “any abstract ‘harm’ [an injunction] might
cause . . . pales in comparison and importance to the harms the absence of [an in-
junction] threatens to cause countless individuals and companies.” BST Holdings,
LLC v. Occupational Safety & Health Admin., 17 F.4th 604, 618 (5th Cir. 2021). An in-
junction poses little injury to the defendants, who retain the right to recommend vac-
cination among contractors and to seek contractual remedy for delay or failure to
perform a contract. In contrast, denial of the proposed injunction would substan-
tially injure Florida entities faced with violating either a federal contract or state law.
Further, the proposed injunction is in the public interest, which supports protecting
an individual reluctant employee from likely-unlawful government action and sup-
ports stemming the “economic uncertainty [and] workplace strife” caused by the vac-
cine requirement. BST Holdings, 17 F.4th at 618–19. Thus, the balance of the harms
and the public interest weigh in favor of a preliminary injunction.
CONCLUSION
Because Florida demonstrates a substantial likelihood that Executive Order
14042 exceeds the President’s authority under FPASA, the motion (Doc. 24) is
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GRANTED on Florida’s claim that Executive Order 14042 exceeds the President’s
authorization under FPASA, and the balance of the motion remains UNDER AD-
VISEMENT. After review of the supplemental briefing, an order will resolve the
balance of the motion.
Because an injunction limited to protecting only the State of Florida and its
political subdivisions (1) would likely prove unworkable given that the State of Flor-
ida is (unsurprisingly) the largest entity within the state and routinely enters federal
contracts and subcontracts with entities throughout the state and (2) would fail to
protect the State of Florida’s quasi-sovereign interest, a preliminary injunction pro-
hibiting enforcement of Executive Order 14042 in any covered contract in Florida
warrants issuance. Not later than DECEMBER 29, 2021, the parties may propose a
preliminary injunction consistent with this order. Of course, by proposing an order
the defendants waive no otherwise preserved objection to the preliminary injunction.
The motion (Doc. 32) to stay is DENIED. Not later than JANUARY 21, 2022, the
defendants must respond to the complaint.
ORDERED in Tampa, Florida, on December 22, 2021.
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