Kentucky v. Biden

• Decision Date: 30 November 2021
• Docket Number: Civil No. 3:21-cv-00055-GFVT
• Citation: 571 F.Supp.3d 715
• Parties: Commonwealth of KENTUCKY, et al., Plaintiffs, v. Joseph R. BIDEN, in his official capacity as President of the United States, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

571 F.Supp.3d 715

Commonwealth of KENTUCKY, et al., Plaintiffs,

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

Civil No. 3:21-cv-00055-GFVT

United States District Court, E.D. Kentucky, Central Division. Frankfort.

Signed November 30, 2021

Alexander Y. Magera, Barry L. Dunn, Christopher L. Thacker, Heather Lynn Becker, Attorney General's Office, Frankfort, KY, Jeremy J. Sylvester, Moynahan, Irvin & Mooney, Nicholasville, KY, for Plaintiff Commonwealth of Kentucky.

Benjamin M. Flowers, Pro Hac Vice, Carol O'Brien, Pro Hac Vice, Attorney General's Office, Columbus, OH, Sylvia May Davis, Pro Hac Vice, Attorney General's Office, Cleveland, OH, Heather Lynn Becker, Attorney General's Office, Frankfort, KY, for Plaintiff State of Ohio.

Brandon J. Smith, Pro Hac Vice, Dianna B. Shew, Pro Hac Vice, Office of the Tennessee Attorney General and Reporter, Nashville, TN, Heather Lynn Becker, Attorney General's Office, Frankfort, KY, for Plaintiff State of Tennessee.

Benjamin M. Flowers, Pro Hac Vice, Carol O'Brien, Pro Hac Vice, Attorney General's Office, Columbus, OH, Sylvia May Davis, Pro Hac Vice, Attorney General's Office, Cleveland, OH, for Plaintiff Fredrick W. Stevens.

Benjamin M. Flowers, Pro Hac Vice, Carol O'Brien, Pro Hac Vice, Attorney General's Office, Columbus, OH, James R. Flaiz, Pro Hac Vice, Geauga County Prosecutor's Office, Chardon, OH, Sylvia May Davis, Pro Hac Vice, Attorney General's Office, Cleveland, OH, for Plaintiff Scott A. Hildenbrand.

Jody D. Lowenstein, Zachary A. Avallone, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION & ORDER

Gregory F. Van Tatenhove, United States District Judge This is not a case about whether vaccines are effective. They are. Nor is this a case about whether the government, at some level, and in some circumstances, can require citizens to obtain vaccines. It can. The question presented here is narrow. Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no. So, for the reasons that follow, the pending request for a preliminary injunction will be GRANTED.

I

On January 20, 2021, Joseph Robinette Biden, Jr. became the forty-sixth President of the United States. On his first day in office, President Biden signed Executive Order 13991, which established the Safer Federal Workforce Task Force. 86 Fed. Reg. 7,045 –48 (Jan. 20, 2021). The Task Force's stated mission is to "provide 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." Id. at 7,046.

On September 9, 2021, President Biden signed Executive Order 14042. 86 Fed. Reg. 50,985 –88 (Sept. 9, 2021). Executive Order 14042 mandated the Safer Federal Workforce Task Force to provide Guidance regarding "adequate COVID–19 safeguards" by September 24, 2021, that would apply to all federal contractors and subcontractors. Id. at 50,985. According to the Department of Labor, "workers employed by federal contractors" make up "approximately one-fifth of the entire U.S. labor force." United States Department of Labor, History of Executive Order 11246 , https://www.dol.gov/agencies/ofccp/about/executive-order-11246-history (last visited Nov. 24, 2021). For Kentucky, Ohio, and Tennessee, federal contracting is a multi-billion-dollar industry. [R. 32 at 4.] The executive order specified that the Guidance would be mandatory at all "contractor or subcontractor workplace locations" so long as the Director of the Office of Management and Budget approved the Guidance and determined that it would "promote economy and efficiency in Federal contracting." 86 Fed. Reg. at 50,985. Furthermore, the executive order applies to "any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument." Id. at 50,986.¹

On September 24, the Safer Federal Workforce Task Force issued its Guidance pursuant to Executive Order 14042. See Safer Federal Workforce Task Force, COVID–19 Workplace Safety: Guidance for Federal Contractors and Subcontractors , https://www.saferfederalworkforce.gov/downloads/Draft% 20contractor% 20guidance% 20doc_20210922.pdf (last visited Nov. 24, 2021). The Guidance requires all "covered contractors"² to be fully vaccinated by December 8, 2021,³ unless they are "legally entitled to an accommodation." Id. at 1. The Guidance applies to all "newly awarded covered contracts" at any location where covered contract employees work and covers "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." Id. at 3–5.

On September 28, the Director of the OMB, "determined that compliance 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." 86 Fed. Reg. 53,692.

Executive Order 14042 tasked the Federal Acquisition Regulatory Council with "amend[ing] the Federal Acquisition Regulation." 86 Fed. Reg. 50,986. The Federal Acquisition Regulation is a set of policies and procedures that governs the drafting and procurement processes of contracts for all executive agencies. See United States General Services Administration, Federal Acquisition Regulation (FAR) , https://www.gsa.gov/policy-regulations/regulations/federal-acquisition-regulation-far (last visited Nov. 24, 2021). On September 30, the Federal Acquisition Regulatory Council issued Guidance in the form of a memo to assist agencies responsible for mandating contractor and subcontractor compliance with the vaccination

requirement until the Federal Acquisition Regulation can be officially amended. See FAR Council Guidance, https://www.whitehouse.gov/wp-content/uploads/2021/09/FAR-Council-Guidance-on-Agency-Issuance-of-Deviations-to-Implement-EO-14042.pdf (last visited Nov. 24, 2021). The vaccine requirement officially only applies to contracts awarded (1) on or after November 15; (2) "new solicitations issued on or after October 15"; and (3) extensions to or renewals of existing contracts exercised on or after October 15." Id. at 2. However, the Federal Acquisition Regulatory Council attached a deviation clause to the Guidance that contractors were encouraged to insert into their current contracts. Id. at 4–5.

Plaintiffs filed their Complaint on November 4, and on November 8, Plaintiffs filed a temporary restraining order and preliminary injunction asking this court to enjoin the federal contractor vaccine mandate. [R. 12 at 31.] Plaintiffs argue that Defendants’ actions were contrary to procedure, arbitrary and capricious, and violated the U.S. Constitution. Id. at 9–10. On November 9, the Court held a telephonic conference with the parties, and with no objection from the parties, denied Plaintiffs’ temporary restraining order and construed the motion as one for a preliminary injunction only.⁴ The Court set briefing deadlines for the parties and scheduled a hearing for Thursday, November 18. [R. 16; R. 17.] On November 10, the OMB Director issued a revised Determination that (1) revoked the prior OMB Determination; (2) provided additional reasoning and support for how the Contractor Guidance will promote economy and efficiency in government contracting; and (3) gave covered contractors additional time to comply with the vaccination

requirement. See 86 Fed. Reg. 63,418. On November 15, in light of the revised Determination, Plaintiffs filed an Amended Complaint. [R. 22.] Defendants filed a response in opposition to Plaintiffs’ preliminary injunction on November 16, Plaintiffs replied on November 17, and the Court held a hearing with the parties on November 18. [R. 27; R. 32; R. 41.]

II

A

An initial matter is the question of standing. Town of Chester, N.Y. v. Laroe Estates, Inc. , ––– U.S. ––––, 137 S. Ct. 1645, 1650, 198 L.Ed.2d 64 (2017) ("a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought") (quoting Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) ); see also DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). "At least one plaintiff must have standing to seek each form of relief requested in the complaint." Town of Chester, N.Y. , 137 S. Ct. at 1651.

Standing is a threshold inquiry in every federal case that may not be waived by the parties. See, e.g., Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ; Planned Parenthood Ass'n of Cincinnati, Inc. v. Cincinnati , 822 F.2d 1390, 1394 (6th Cir. 1987). "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 Envtl. 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...