Brnovich v. Biden, CV-21-01568-PHX-MTL

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtMICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE
PartiesMark Brnovich, et al., Plaintiffs, v. Joseph R Biden, et al., Defendants.
Decision Date27 January 2022
Docket NumberCV-21-01568-PHX-MTL

Mark Brnovich, et al., Plaintiffs,
v.

Joseph R Biden, et al., Defendants.

No. CV-21-01568-PHX-MTL

United States District Court, D. Arizona

January 27, 2022


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.

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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

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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

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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%20doc20210922.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 fulltime 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

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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 costs for contractors and subcontractors working on or in connection with a Federal Government contract.” Determination of the Promotion of Economy and Efficiency in Federal Contracting Pursuant to Executive Order No. 14042, 86 Fed.Reg. 53, 691, 53, 692 (Sept. 28, 2021). The notice did not provide analysis or evidence supporting Acting Director Young's determination and was not subject to public comment. Nor did the notice claim that urgent and compelling circumstances merited forgoing the notice-and-comment procedures set forth in the Office of Federal Procurement Policy Act (the “Procurement Policy Act”), 41 U.S.C. § 1707(d).

The next day, September 29, 2021, the FAR Council initiated the rulemaking process to amend the FAR. See Open FAR Cases Report 2 (Nov. 1, 2021), https://www.acq.osd.mil/dpap/dars/opencases/farcasenum/far.pdf (Case No. 2021-021, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors). EO 14042 directed the FAR Council to issue interim guidance assisting agencies in exercising their authority to deviate from the FAR by incorporating vaccination clauses into qualifying contracts. See 86 Fed.Reg. at 50, 986. Consistent with that directive, on September 30, 2021, the FAR Council issued a memorandum “provid[ing] agencies . . . with initial

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direction” for implementing the SFWTF guidance and for “meeting the applicability requirements and deadlines set forth in” EO 14042. See Memorandum from Lesley A. Field et al., 1-2 (Sept. 30, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/09/ FAR-Council-Guidance-on-Agency-Issuance-of-Deviations-to-Implement-EO-14042.pdf (“FAR Memorandum”). The memorandum includes a sample vaccination clause that reads, in part: “The Contractor shall comply with all guidance, including guidance conveyed...

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