Missouri v. Biden

576 F.Supp.3d 622

State of MISSOURI, et al., Plaintiffs,

v.Joseph R. BIDEN, in his official Capacity as President of the United States, et al., Defendants.

No. 4:21 CV 1300 DDN

United States District Court, E.D. Missouri, Eastern Division.

Signed December 20, 2021

Justin D. Smith, Office of the Attorney General of Missouri, Jefferson City, MO, Michael E. Talent, Office of the Attorney General of Missouri, St. Louis, MO, for Plaintiffs State of Missouri, State of Alaska, State of Arkansas, State of Montana, State of New Hampshire, State of North Dakota, State of South Dakota, State of Wyoming.

James A. Campbell, Attorney General of Nebraska, Lincoln, NE, Justin D. Smith, Office of the Attorney General of Missouri, Jefferson City, MO, Michael E. Talent, Office of the Attorney General of Missouri, St. Louis, MO, for Plaintiff State of Nebraska.

Justin D. Smith, Office of the Attorney General of Missouri, Jefferson City, MO, Samuel Paul Langholz, Attorney General of Iowa, Des Moines, IA, Michael E. Talent, Office of the Attorney General of Missouri, St. Louis, MO, for Plaintiff State of Iowa.

Vinita Andrapalliyal, Zach A. Avallone, US Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

David D. Noce, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on plaintiff-States’ motion for preliminary injunction, pursuant to Federal Rule of Civil Procedure 65, to enjoin the enforcement of the COVID-19 vaccine mandate for certain federal contractors and subcontractors. (Doc. 8.) The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

For the following reasons, plaintiffs’ motion for preliminary injunction is sustained.

BACKGROUND

On January 20, 2021, President Biden ("the President") signed Executive Order 13,991, 86 Fed. Reg. 7045, which established the Safer Federal Workforce Task Force ("Task Force"). The Task Force is charged with providing "ongoing guidance to heads of agencies on the operation of the Federal Government, the safety of its employees, and the continuity of Government functions during the COVID–19 pandemic." 86 Fed. Reg. at 7046 (§ 4(a)). On September 9, 2021, the President announced that he had signed Executive Order 14,042 ("EO 14,042"), requiring the Task Force to issue Guidance regarding adequate COVID-19 safeguards.

On September 24, 2021, the Task Force issued Guidance implementing EO 14,042. The Guidance required that federal contractors ensure that their covered employees were vaccinated against COVID-19, subject to legal accommodations; in addition, the Guidance required masking and physical distancing in covered contractor workplaces. Also on September 24, the Acting Office of Management and Budget ("OMB") Director published in the Federal Register her determination that the Task Force Guidance will improve economy and efficiency.

To implement EO 14,042 and the Task Force's Guidance, as approved by OMB, on September 30, 2021, the Federal Acquisition Regulatory Council ("FAR Council") issued a memorandum to "agencies that award contracts under the Federal Acquisition Regulation with initial direction for the incorporation of a clause into their solicitations and contracts to implement" the Guidance. This included allowing a sample clause that may be included in contracts via a deviation.¹

On November 10, 2021, the Task Force updated the Guidance, changing the date contractors’ employees were required to be fully vaccinated from December 8, 2021, to January 18, 2022. Also on November 10, the Acting Director of OMB filed for publication in the Federal Register her determination that the updated Guidance "will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors." Federal agencies have issued agency-specific class deviations directing procurement officers to include the COVID-19 safety clause in contracts until the FAR Council issues its final government-wide regulation.

Plaintiff-States maintain significant contracts with the federal government. According to the System for Award Management, in calendar 2020, federal contracts performed in plaintiff-States were worth billions of dollars, ranging from $386 million in Wyoming to $16 billion in Missouri. (Doc. 27-1 at 98-99.)

On October 29, 2021, plaintiffs – the States of Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming – commenced this judicial action to challenge the mandate. (Doc. 1.) Plaintiffs allege in their complaint that the mandate violates the U.S. Constitution, the Administrative Procedures Act ("APA"), and federal procurement law.² On November 4, plaintiffs moved for preliminary injunction. (Doc. 8.) Defendants filed their response in opposition on November 18, and plaintiffs filed their reply on November 22. (Docs. 20, 23.) The parties also filed supplemental briefing on December 10. (Docs. 28, 29.)

RELEVANT LEGAL PRINCIPLES

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). In determining whether to issue a preliminary injunction, the Court must consider four factors: "(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." Dataphase Sys., Inc. v. C L Sys., Inc. , 640 F.2d 109, 114 (8th Cir. 1981).

None of the four factors "is determinative," and each must be examined "in the context of the relative injuries to the parties and the public." Id. at 113. District courts have discretion to apply the Dataphase test in a pragmatic, "flexible" way. Richland/Wilkin Joint Powers Auth. v. United States Army Corps of Eng'rs , 826 F.3d 1030, 1036 (8th Cir. 2016) (citations omitted). Whether to grant a stay or injunction "militates against a wooden application" of probabilities, because "[a]t base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." Dataphase Sys. , 640 F.2d at 113.

DISCUSSION

A. Standing

In their supplemental briefing, defendants raised the issue of standing. They argue that plaintiffs lack standing to bring parens patriae claims against the federal government for any claim and that they cannot claim irreparable injury for any purported harms to their citizens. (Doc. 29 at 15.) They also contend that plaintiffs have failed to show standing based on their status as federal contractors. (Id. at 16.) Lastly, they argue that plaintiffs’ claim of direct sovereign injuries cannot create standing. (Id. at 19.)

Standing is a threshold inquiry in every federal case that determines whether the court has the power to decide the case. See, e.g., Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "To satisfy the ‘case’ or ‘controversy requirement’ of Article III, which is the ‘irreducible constitutional minimum’ of standing, a plaintiff must, generally speaking, demonstrate that he has suffered an ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Bennett v. Spear , 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citations omitted). Plaintiffs’ injury-in-fact must be both particularized and concrete. Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1545, 194 L.Ed.2d 635 (2016) (citing Friends of the Earth, Inc. v. Laidlaw Env't. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). "For an injury to be particularized, it must affect the plaintiff in a personal and individual way." Id. at 1548 (internal quotation marks omitted). Further, a "concrete" injury is a de facto injury that actually exists. Id. Finally, "a plaintiff must also establish, as a prudential matter, that he or she is the proper proponent of the rights on which the action is based." Haskell v. Washington Twp. , 864 F.2d 1266, 1275 (6th Cir. 1988) (citations omitted). "[W]here one plaintiff establishes standing to sue, the standing of other plaintiffs is immaterial." Nat'l Wildlife Fed'n v. Agric. Stabilization and Conservation Serv. , 955 F.2d 1199, 1203 (8th Cir. 1992) (quoting Bowen v. Kendrick , 487 U.S. 589, 620 n.15, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) ).

The Court concludes that plaintiffs do not have standing with regard to their quasi-sovereign parens patriae interests. Despite plaintiffs’ argument that they seek the federal government's compliance with federal statutes and the Constitution, their claims are best understood as challenges to the operation of the federal vaccine mandate. Plaintiffs do not have standing to make such a claim. See Gov't of Manitoba v. Bernhardt , 923 F.3d 173, 176 (D.C. Cir. 2019) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez , 458 U.S. 592, 610 n.16, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) ); Massachusetts v. EPA , 549 U.S. 497, 520 n.17, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007).

Missouri, Alaska, Arkansas, and Montana have alleged sufficient injuries to establish standing for their sovereign interest claims. Each state alleges that the contractor mandate ostensibly preempts state statutes regarding vaccine mandates. (Doc. 9 at 38-39.) Preemption of a validly enacted state statute is an injury in fact, such that the state will not be able to enforce the statute,³ and the injury is fairly traceable to EO 14,042. The injury is redressable because EO 14,042 does not preempt state statutes if it is not enforced.

In support of their motion for preliminary injunction, plaintiffs submitted ten declarations from state officials in Missouri, Iowa, New...