Brnovich v. Biden

562 F.Supp.3d 123

Mark BRNOVICH, et al., Plaintiffs,

v.Joseph R. BIDEN, et al., Defendants.

No. CV-21-01568-PHX-MTL

United States District Court, D. Arizona.

Signed January 27, 2022

Brunn Wall Roysden, III, Drew Curtis Ensign, James Kenneth Rogers, Joseph Andrew Kanefield, Office of the Attorney General, Phoenix, AZ, for Plaintiffs Mark Brnovich, Arizona, State of.

Davis P. Bauer, Dennis Ira Wilenchik, John Douglas Wilenchik, Wilenchik & Bartness PC, Phoenix, AZ, for Plaintiff Al Reble.

Cassidy Layne Bacon, Eric Reginald Wilson, Michael Napier, Napier Coury & Baillie PC, Phoenix, AZ, for Plaintiffs Phoenix Law Enforcement Association, United Phoenix Firefighters Association Local 493.

Christopher M. Lynch, Elissa Paulette Fudim, Joseph John DeMott, Robert Charles Merritt, Kevin Wynosky, US Dept. of Justice - Civil Division, Washington, DC, for Defendants Joseph R. Biden, Alejandro Mayorkas, United States Department of Homeland Security, Tae Johnson.

Christopher M. Lynch, Joseph John DeMott, Robert Charles Merritt, Kevin Wynosky, US Dept. of Justice - Civil Division, Washington, DC, for Defendant Troy Miller.

Joseph John DeMott, Robert Charles Merritt, Kevin Wynosky, US Dept. of Justice - Civil Division, Washington, DC, for Defendants Ur M. Jaddou, United States Office of Personnel Management, Kiran Ahuja, General Services Administration, Robin Carnahan, Office of Management and Budget, Shalanda Young, Safer Federal Workforce Task Force, Jeffrey Zients.

Joseph John DeMott, US Dept. of Justice - Civil Division, Washington, DC, for Defendants L. Eric Patterson, James M. Murray, Deanne Criswell, Rochelle Walensky, Centers for Disease Control and Prevention, Federal Acquisition Regulatory Council, Mathew C. Blum, Lesley A. Field, Karla S. Jackson, Jeffrey A. Koses, John M. Tenaglia.

Elissa Paulette Fudim, Joseph John DeMott, US Dept. of Justice - Civil Division, Washington, DC, for Defendant United States of America.

Eric Michael Fraser, Hayleigh Susan Crawford, Joshua David R. Bendor, Osborn Maledon PA, Phoenix, AZ, for Defendant City of Phoenix.

ORDER

Michael T. Liburdi, United States District Judge Plaintiffs the State of Arizona and Arizona Attorney General Mark Brnovich (collectively, the "State"); Al Reble, an employee of the U.S. Marshals Service, a component of the Department of Justice; the Phoenix Law Enforcement Association ("PLEA"); and United Phoenix Firefighters Association Local 493 ("Local 493"), seek to enjoin Defendants, the United States; various federal officials and entities; and the City of Phoenix, from enforcing two federal vaccination policies: one relating to federal contractors and subcontractors (the "Contractor Mandate"), and one relating to federal employees (the "Employee Mandate").

For the reasons that follow, the Court will grant Plaintiffs’ Motion for Preliminary Injunction (Doc. 72) in part, deny it in part, and enter an injunction against the federal Defendants.

I. BACKGROUND

A. Factual Background

1. Contractor Mandate

On January 20, 2021, President Joseph Biden's first day in office, he issued Executive Order ("EO") 13991, Protecting the Federal Workforce and Requiring Mask-Wearing, which established the Safer Federal Workforce Task Force ("SFWTF") and charged it with "provid[ing] ongoing guidance to heads of agencies on the operation of the Federal Government, the safety of its employees, and the continuity of Government functions during the COVID-19 pandemic." 86 Fed. Reg. 7,045, 7,046. EO 13991 provided that the SFWTF would be headed by three co-chairs: (1) the Director of the Office of Personnnel Management ("OPM") (Defendant Ahuja); (2) the Administrator of the General Services Administration ("GSA") (Defendant Carnahan); and (3) the COVID–19 Response Coordinator (Defendant Zients). Id.

Nine months later, on September 9, 2021, President Biden announced "a new plan to require more Americans to be vaccinated." See President Joseph Biden, Remarks on Fighting the COVID-19 Pandemic (Sept. 9, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/. This plan would include several "new vaccination requirements." Id. First, it would "require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week." Id. Second, it would "require vaccinations" of "those who work in hospitals, home healthcare facilities, or other medical facilities—a total of 17 million healthcare workers." Id. Third, President Biden stated that "I will sign an executive order that will now require all executive branch federal employees to be vaccinated — all. And I've signed another executive order that will require federal contractors to do the same." Id. And finally, the President announced that he would "require all of nearly 300,000 educators in the federal paid program, Head Start program," to be vaccinated. Id. The instant action challenges two of these vaccination requirements: those relating to federal employees (the "Employee Mandate") and federal contractor employees (the "Contractor Mandate").

The same day he announced his new vaccination plan, President Biden signed EO 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg. 50,985 (Sept. 14, 2021). Therein, President Biden stated that the order was promulgated pursuant to "the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act." Id. at 50,985. The order was intended to "promote[ ] economy and efficiency in Federal procurement by ensuring that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument." Id. Compliance with these safeguards, the order reasoned, "will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the Federal Government." Id.

The order directed executive agencies subject to the Federal Property and Administrative Services Act (the "Procurement Act"), 40 U.S.C. § 101 et seq., to include, in qualifying federal contracts and contract-like instruments, a clause requiring contractors and subcontractors to comply with guidance that would subsequently be issued by the SFWTF.¹ Id. The order further directed the Federal Acquisition Regulation ("FAR") Council to make corresponding amendments to the FAR and, in the interim, to issue guidance to federal agencies on how to use their existing authority to include the new clause in covered contracts. Id. at 50,986. Such guidance was to be issued by October 8, 2021 and was to include a sample clause that agencies might incorporate into their contracts and solicitations. Id.

The order instructed the SFWTF to issue its guidance by September 24, 2021 and provided that prior to the guidance's issuance, the Director of the Office of Management and Budget ("OMB") "shall, as an exercise of the delegation of my authority under the Federal Property and Administrative Services Act, see 3 U.S.C. 301, determine whether such Guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors." Id. at 50,985 –86.

Consistent with the President's direction, the SFWTF issued its initial guidance for federal contractor and subcontractor work locations on September 24, 2021. Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Sept. 24, 2021), https://www.saferfederalworkforce.gov/downloads/Draft% 20contractor% 20guidance% 20doc_20210922.pdf. The guidance states, in part:

Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

Id. at 5. The guidance defines the term "covered contractor employee" to mean "any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace[,] ... includ[ing] employees of covered contractors who are not themselves working on or in connection with a covered contract." Id. at 3–4. This means that even employees of contractors and subcontractors who are not themselves working on federal contracts are subject to the Contractor Mandate. The guidance further provides that the vaccine mandate applies to contractor employees who have already been infected with COVID-19, to workplace locations that are outdoors, and to contractor employees who are working remotely full time. Id. at 10–11. The guidance also clarifies that "[p]eople are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine."² Id. at 4. And, finally, the guidance states that it is promulgated pursuant to federal law and thus supersedes any contrary state or local law or ordinance. Id. at 13.

On September 28, 2021, Shalanda Young, Acting Director of OMB, published a notice in the Federal Register that she had "determined that compliance by Federal contractors and subcontractors with the COVID-19 workplace safety protocols detailed in [the SFWTF guidance] will improve economy and efficiency by reducing absenteeism and decreasing labor...