Kentucky v. Biden

• Decision Date: 05 January 2022
• Docket Number: No. 21-6147,21-6147
• Citation: 23 F.4th 585
• Parties: Commonwealth of KENTUCKY, et al., Plaintiffs-Appellees, v. Joseph R. BIDEN, in his official capacity as President of the United States of America, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

23 F.4th 585

Commonwealth of KENTUCKY, et al., Plaintiffs-Appellees,

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

No. 21-6147

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 5, 2022

ON MOTION FOR STAY: Anna O. Mohan, David L. Peters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. ON RESPONSE: Barry L. Dunn, Matthew F. Kuhn, Brett R. Nolan, Alexander Y. Magera, Michael R. Wajda, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Benjamin M. Flowers, Carol O'Brien, May Davis, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, James R. Flaiz, GEAGUA COUNTY PROSECUTOR'S OFFICE, Chardon, Ohio, Brando J. Smith, Dianna Baker Shew, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. ON AMICUS BRIEF: Rachel L. Fried, Jessica Anne Morton, Jeffrey B. Dubner, JoAnn Kintz, DEMOCRACY FORWARD FOUNDATION, Washington, D.C., for Amici Curiae.

Before: SUHRHEINRICH, COLE, and BUSH, Circuit Judges.

BUSH, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined, and COLE, J., joined in part. COLE, J. (pp. 613–16), delivered a separate dissenting opinion.

JOHN K. BUSH, Circuit Judge.

In 1949, Congress passed a statute called the Federal Property and Administrative Services Act ("Property Act") to facilitate the "economical and efficient" purchase of goods and services on behalf of the federal government. See 40 U.S.C. § 101. The Property Act serves an uncontroversial purpose; who doesn't want the government to be more "economical and efficient"? Yet that laudable legislative-branch prescription, in place for the last seventy years, has recently been re-envisioned by the executive. In November 2021, the Safer Federal Workforce Task Force, under the supposed auspices of the Act, issued a "Guidance" mandating that the employees of federal contractors in "covered contract[s]" with the federal government become fully vaccinated against COVID-19.¹ That directive sweeps in at least one-fifth of our nation's workforce, possibly more. And so an act establishing an efficient "system of property management," S. Rep. 1413 at 1 (1948), was transformed into a novel font of federal authority to regulate the private health decisions of millions of Americans.

In response, three states (Ohio, Kentucky, and Tennessee) and two Ohio sheriffs’ offices filed suit. They collectively alleged that nothing in the Property Act authorizes the contractor mandate, that the contractor mandate violates various other federal statutes, and that its intrusion upon traditional state prerogatives raises serious constitutional concerns under federalism principles and the Tenth Amendment. The district court agreed. It enjoined enforcement of the contractor mandate throughout Ohio, Kentucky, and Tennessee. It also denied the subsequent motion of the federal-government defendants² to stay the injunction pending appeal. The government now comes to us with the same request. But because the government has established none of the showings required to obtain a stay, we DENY such relief.

I.

On September 9, 2021, President Biden delivered an address in which he announced that his "patience" with "unvaccinated Americans ... is wearing thin." Amended Complaint at 1 n.1, R. 22 (citing Joseph R. Biden, Remarks by President Biden on Fighting the COVID-19 Pandemic , The White House (Sept. 9, 2021), https://perma.cc/GQG5-YBXK). Reflecting that fact, the President earlier that day had signed Executive Order 14042 (E.O. 14042 ), titled " Ensuring Adequate COVID Safety Protocols for Federal Contractors." 86 Fed. Reg. 50,985 (Sept. 14, 2021). Citing the Property Act and 3 U.S.C. § 301³ as the relevant statutory authorities, the Order directs federal contractors to "provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract[.]" Id. More specifically, it directs them to comply "with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force"—itself created by President Biden in January 2021—"provided that the Director of the Office of Management and Budget" ("OMB") determines that such guidance "will promote economy and efficiency in Federal contracting." Id.

The Safer Federal Workforce Task Force promulgated its Guidance a few weeks later. See Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Sept. 24, 2021), https://perma.cc/2R27-9J4U. The Guidance requires "COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation," id. at 1, such as for a disability or religious objection. See id. at 5 ("Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation.") (emphasis added). Even fully vaccinated employees must also continue to wear masks if they work "[i]n areas of high or substantial community transmission." Id. at 6. Covered contractors "may," but apparently are not required to, relax the masking requirement when the employee is eating or "alone in an office with floor to ceiling walls and a closed door." Id. at 7. Further, the Guidance requires vaccination even of employees "who are not themselves working on or in connection with a covered contract," id. at 3–4 (emphasis added), at least if they are "likely to be present" where a covered contract is being performed. Id. at 8.

Four days after the Guidance issued, the OMB Director issued a perfunctory "determination" pursuant to E.O. 14042 that the Guidance would promote "economy and efficiency" under the Property Act. 86 Fed. Reg. 53,691, 53,691 –92 (Sept. 28, 2021).⁴ But in response to ensuing lawsuits (or so the plaintiffs allege), the OMB bolstered the Director's initial explanation with another notice of determination on November 16, 2021.⁵ 86 Fed. Reg. 63,418 (Nov. 16, 2021) ; see also Amended Complaint ¶ 120, R. 22. Though longer than its predecessor, the second notice of determination mostly recapitulates the relevant features of the contractor mandate: that it requires vaccination at least and, for some employees, both vaccination and masking; that it includes even those employees not themselves performing a covered contract; and that it admits of only limited exceptions. Id. at 63,419 –21. The determination also includes some information in its final pages about how vaccination reduces COVID's net costs—for instance, by reducing absenteeism. Id. at 63,422 –23. And thus it pronounces "OMB's expert opinion that the Guidance will promote economy and efficiency in Federal Government procurement." Id. at 63,423.

Before turning to the procedural history underlying this litigation, we pause to make a few observations on the Guidance's breadth. First, according to the Department of Labor, "workers employed by federal contractors" constitute "approximately one-fifth of the entire U.S. labor force." Amended Complaint ¶ 127, R. 22 (citing Dep't of Labor, History of Executive Order 11246 , https://perma.cc/6ZXJ-WGR8). As the plaintiffs point out, contractors thus constitute "large portions of the labor force[s]" in Ohio, Kentucky, and Tennessee. Id. And second, we emphasize just how expansively the Guidance defines which share of those contractors are "covered." The Guidance does not cover merely those employees performing a covered contract. Rather, it also sweeps in employees merely working "in connection with" such contracts, and even "employees of covered contractors who are not themselves working on or in connection with a covered contract." Guidance, supra , at 3–4 (emphasis added); cf. Mont v. United States , ––– U.S. ––––, 139 S. Ct. 1826, 1832, 204 L.Ed.2d 94 (2019) ("This Court has ... recognized that ‘ "in connection with" is essentially indeterminate because connections, like relations, stop nowhere.’ " (quoting Maracich v. Spears , 570 U.S. 48, 59, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013) )).

True, as we mentioned, the Guidance stipulates that such employees are "covered" only if they are "likely" to interact with employees performing a covered contract. Guidance, supra , at 4. But it then explains that unless the "covered contractor can affirmatively determine that none of its employees" working on matters other than the covered contract "will come into contact with a covered contractor employee during the period of performance," then those employees must also become vaccinated. Id. at 10, 11 (emphasis added). Thus, as the Guidance explains, it includes personnel working in such areas as "human resources, billing, and legal review." Id. at 13. Likewise, "covered" workplaces include "common areas," parking garages, and even workplaces outdoors. Id. at 10, 11. Not only that, an employee working from home "is a covered contractor employee." Id. at 11. So employees confined to their residences still "must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract." Id. (emphasis added). Given that expansive scope of the Guidance, the interpretive trouble is not figuring out who's "covered"; the difficult issue is understanding who, based on the Guidance's definition of "covered," could possibly not be covered.

II.

We turn now to the underlying suit. The plaintiffs filed their complaint against the relevant federal officials on November 4, 2021, Complaint, R. 1, followed by an amended, operative complaint on November 15, 2021, Amended Complaint, R. 22. Two aspects of the complaint are particularly relevant to our stay determination: the plaintiffs’ theory of injury, on the one hand, and their concomitant theories of standing to sue, on the other. As...