Mayes v. Biden

• Court: District Court, D. Arizona
• Decided: January 27, 2022
• Docket: 2:21-cv-01568
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mark Brnovich, et al., No. CV-21-01568-PHX-MTL 10 Plaintiffs, ORDER 11 v. 12 Joseph R Biden, et al., 13 Defendants. 14 15 Plaintiffs the State of Arizona and Arizona Attorney General Mark Brnovich 16 (collectively, the “State”); Al Reble, an employee of the U.S. Marshals Service, a 17 component of the Department of Justice; the Phoenix Law Enforcement Association 18 (“PLEA”); and United Phoenix Firefighters Association Local 493 (“Local 493”), seek to 19 enjoin Defendants, the United States; various federal officials and entities; and the City of 20 Phoenix, from enforcing two federal vaccination policies: one relating to federal 21 contractors and subcontractors (the “Contractor Mandate”), and one relating to federal 22 employees (the “Employee Mandate”). 23 For the reasons that follow, the Court will grant Plaintiffs’ Motion for Preliminary 24 Injunction (Doc. 72) in part, deny it in part, and enter an injunction against the federal 25 Defendants. 26 /// 27 /// 28 /// 1 I. BACKGROUND 2 A. Factual Background 3 1. Contractor Mandate 4 On January 20, 2021, President Joseph Biden’s first day in office, he issued 5 Executive Order (“EO”) 13991, Protecting the Federal Workforce and Requiring Mask- 6 Wearing, which established the Safer Federal Workforce Task Force (“SFWTF”) and 7 charged it with “provid[ing] ongoing guidance to heads of agencies on the operation of the 8 Federal Government, the safety of its employees, and the continuity of Government 9 functions during the COVID-19 pandemic.” 86 Fed. Reg. 7,045, 7,046. EO 13991 10 provided that the SFWTF would be headed by three co-chairs: (1) the Director of the Office 11 of Personnnel Management (“OPM”) (Defendant Ahuja); (2) the Administrator of the 12 General Services Administration (“GSA”) (Defendant Carnahan); and (3) the COVID–19 13 Response Coordinator (Defendant Zients). Id. 14 Nine months later, on September 9, 2021, President Biden announced “a new plan 15 to require more Americans to be vaccinated.” See President Joseph Biden, Remarks on 16 Fighting the COVID-19 Pandemic (Sept. 9, 2021), https://www.whitehouse.gov/briefing- 17 room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid- 18 19-pandemic-3/. This plan would include several “new vaccination requirements.” Id. 19 First, it would “require all employers with 100 or more employees, that together employ 20 over 80 million workers, to ensure their workforces are fully vaccinated or show a negative 21 test at least once a week.” Id. Second, it would “require vaccinations” of “those who work 22 in hospitals, home healthcare facilities, or other medical facilities—a total of 17 million 23 healthcare workers.” Id. Third, President Biden stated that “I will sign an executive order 24 that will now require all executive branch federal employees to be vaccinated — all. And 25 I’ve signed another executive order that will require federal contractors to do the same.” 26 Id. And finally, the President announced that he would “require all of nearly 300,000 27 educators in the federal paid program, Head Start program,” to be vaccinated. Id. The 28 instant action challenges two of these vaccination requirements: those relating to federal

-2- 1 employees (the “Employee Mandate”) and federal contractor employees (the “Contractor 2 Mandate”). 3 The same day he announced his new vaccination plan, President Biden signed EO 4 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg. 5 50,985 (Sept. 14, 2021). Therein, President Biden stated that the order was promulgated 6 pursuant to “the authority vested in me as President by the Constitution and the laws of the 7 United States of America, including the Federal Property and Administrative Services 8 Act.” Id. at 50,985. The order was intended to “promote[] economy and efficiency in 9 Federal procurement by ensuring that the parties that contract with the Federal Government 10 provide adequate COVID-19 safeguards to their workers performing on or in connection 11 with a Federal Government contract or contract-like instrument.” Id. Compliance with 12 these safeguards, the order reasoned, “will decrease worker absence, reduce labor costs, 13 and improve the efficiency of contractors and subcontractors at sites where they are 14 performing work for the Federal Government.” Id. 15 The order directed executive agencies subject to the Federal Property and 16 Administrative Services Act (the “Procurement Act”), 40 U.S.C. § 101 et seq., to include, 17 in qualifying federal contracts and contract-like instruments, a clause requiring contractors 18 and subcontractors to comply with guidance that would subsequently be issued by the 19 SFWTF.1 Id. The order further directed the Federal Acquisition Regulation (“FAR”) 20 Council to make corresponding amendments to the FAR and, in the interim, to issue 21 guidance to federal agencies on how to use their existing authority to include the new clause 22 1 The EO required the clause to be included in new contracts, new solicitations for a 23 contract, extensions or renewals of an existing contract, and exercises of an option on an existing contract, if the contract falls into one of the following categories: a procurement 24 contract for services, construction, or a leasehold interest in real property; a contract for services covered by the Service Contract Act, 41 U.S.C. §§ 6701–6707; a contract for 25 concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. § 4.133(b); or a contract entered into with the federal government 26 in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public. 86 Fed. Reg. at 50,986–87. The EO 27 does not extend to grants or to most contracts for the procurement of goods (as opposed to services). Id. Nor does it extend to contracts “whose value is equal to or less than the 28 simplified acquisition threshold,” which is essentially $250,000. Id. at 50,986; see also 48 C.F.R. § 2.101.

-3- 1 in covered contracts. Id. at 50,986. Such guidance was to be issued by October 8, 2021 and 2 was to include a sample clause that agencies might incorporate into their contracts and 3 solicitations. Id. 4 The order instructed the SFWTF to issue its guidance by September 24, 2021 and 5 provided that prior to the guidance’s issuance, the Director of the Office of Management 6 and Budget (“OMB”) “shall, as an exercise of the delegation of my authority under the 7 Federal Property and Administrative Services Act, see 3 U.S.C. 301, determine whether 8 such Guidance will promote economy and efficiency in Federal contracting if adhered to 9 by Government contractors and subcontractors.” Id. at 50,985–86. 10 Consistent with the President’s direction, the SFWTF issued its initial guidance for 11 federal contractor and subcontractor work locations on September 24, 2021. Safer Federal 12 Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors 13 and Subcontractors (Sept. 24, 2021), https://www.saferfederalworkforce.gov/downloads/ 14 Draft%20contractor%20guidance%20doc_20210922.pdf. The guidance states, in part: 15 Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the 16 employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than 17 December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the 18 period of performance on a newly awarded covered contract, and by the first day of the period of performance on an 19 exercised option or extended or renewed contract when the clause has been incorporated into the covered contract. 20 21 Id. at 5. The guidance defines the term “covered contractor employee” to mean “any full-

22 time or part-time employee of a covered contractor working on or in connection with a

23 covered contract or working at a covered contractor workplace[,] . . . includ[ing]

24 employees of covered contractors who are not themselves working on or in connection

25 with a covered contract.” Id. at 3–4. This means that even employees of contractors and

26 subcontractors who are not themselves working on federal contracts are subject to the

27 Contractor Mandate. The guidance further provides that the vaccine mandate applies to

28 contractor employees who have already been infected with COVID-19, to workplace

-4- 1 locations that are outdoors, and to contractor employees who are working remotely full 2 time. Id. at 10–11. The guidance also clarifies that “[p]eople are considered fully 3 vaccinated for COVID-19 two weeks after they have received the second dose in a two- 4 dose series, or two weeks after they have received a single-dose vaccine.” 2 Id. at 4. And, 5 finally, the guidance states that it is promulgated pursuant to federal law and thus 6 supersedes any contrary state or local law or ordinance. Id. at 13. 7 On September 28, 2021, Shalanda Young, Acting Director of OMB, published a 8 notice in the Federal Register that she had “determined that compliance by Federal 9 contractors and subcontractors with the COVID-19 workplace safety protocols detailed in 10 [the SFWTF guidance] will improve economy and efficiency by reducing absenteeism and 11 decreasing labor costs for contractors and subcontractors working on or in connection with 12 a Federal Government contract.” Determination of the Promotion of Economy and 13 Efficiency in Federal Contracting Pursuant to Executive Order No. 14042, 86 Fed. Reg. 14 53,691, 53,692 (Sept. 28, 2021). The notice did not provide analysis or evidence supporting 15 Acting Director Young’s determination and was not subject to public comment. Nor did 16 the notice claim that urgent and compelling circumstances merited forgoing the notice-and- 17 comment procedures set forth in the Office of Federal Procurement Policy Act (the 18 “Procurement Policy Act”), 41 U.S.C. § 1707(d). 19 The next day, September 29, 2021, the FAR Council initiated the rulemaking 20 process to amend the FAR. See Open FAR Cases Report 2 (Nov. 1, 2021), 21 https://www.acq.osd.mil/dpap/dars/opencases/farcasenum/far.pdf (Case No. 2021-021, 22 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors). EO 14042 23 directed the FAR Council to issue interim guidance assisting agencies in exercising their 24 authority to deviate from the FAR by incorporating vaccination clauses into qualifying 25 contracts. See 86 Fed. Reg. at 50,986. Consistent with that directive, on September 30, 26 2021, the FAR Council issued a memorandum “provid[ing] agencies . . . with initial 27 2 Thus, the initial guidance de facto required that contractor employees receive their final 28 vaccination dose no later than November 24, 2021 to meet the December 8, 2021 deadline to be fully vaccinated.

-5- 1 direction” for implementing the SFWTF guidance and for “meeting the applicability 2 requirements and deadlines set forth in” EO 14042. See Memorandum from Lesley A. Field 3 et al., 1–2 (Sept. 30, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/09/ 4 FAR-Council-Guidance-on-Agency-Issuance-of-Deviations-to-Implement-EO-14042.pdf 5 (“FAR Memorandum”). The memorandum includes a sample vaccination clause that reads, 6 in part: “The Contractor shall comply with all guidance, including guidance conveyed 7 through Frequently Asked Questions, as amended during the performance of this contract, 8 for contractor or subcontractor workplace locations published by the Safer Federal 9 Workforce Task Force.” Id. at 5. The memorandum also encourages agencies “to make 10 their deviations effective until the FAR is amended or the deviation is otherwise rescinded 11 by the agency.” Id. at 3. 12 In November, the SFWTF issued revised contractor guidance and Acting OMB 13 Director Young issued a revised determination that the guidance would promote economy 14 and efficiency in federal contracting. Acting Director Young’s revised determination was 15 published the Federal Register on November 16, 2021. Determination of the Acting OMB 16 Director Regarding the Revised Safer Federal Workforce Task Force Guidance for Federal 17 Contractors and the Revised Economy & Efficiency Analysis, 86 Fed. Reg. 63,418. Among 18 other things, the revised determination includes the full text of the revised SFWTF 19 contractor guidance. The revised guidance changes the deadline for federal contractor 20 employees to be fully vaccinated from December 8, 2021 to January 18, 2022. 3 The revised 21 guidance also omits the FAQs section from the initial guidance document and instead 22 provided a link to a contractor FAQ page on the SFWTF website (“Contractor FAQs”). 23 See Federal Contractors, FAQs, Safer Federal Workforce, 24 https://www.saferfederalworkforce.gov/faq/contractors/ (last visited Jan. 25, 2022). The 25 revised determination also includes a section stating, in far more detail than the initial 26 determination, the manner in which the guidance is expected to promote economy and 27 3 That deadline nominally remains in place. But given the injunctions that have been 28 entered in other cases challenging the Contractor Mandate, see infra Section I.B., the mandate is not currently being enforced.

-6- 1 efficiency in federal procurement. Further, the revised determination disclaims the 2 applicability of the notice-and-comment procedures set forth in the Procurement Policy 3 Act, 41 U.S.C. § 1707(d), and provides that even if that statute is applicable, “urgent and 4 compelling circumstances” justify departing from the requirements of § 1707 in this case. 5 86 Fed. Reg. at 63,423. 6 2. Employee Mandate 7 The same day President Biden issued EO 14042, he also signed EO 14043, 8 Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. 86 Fed. Reg. 9 50,989 (Sept. 14, 2021). EO 14043 stated President Biden’s determination “that to promote 10 the health and safety of the Federal workforce and the efficiency of the civil service, it is 11 necessary to require COVID-19 vaccination for all Federal employees.” Id. at 50,989. 12 Pursuant to that determination, the order directed each federal agency to “implement, to 13 the extent consistent with applicable law, a program to require COVID-19 vaccination for 14 all of its Federal employees, with exceptions only as required by law.” Id. at 50,990. The 15 order further directed the SFWTF to “issue guidance within 7 days of this order on agency 16 implementation of this requirement for all agencies covered by this order.” Id. 17 On September 16, 2021, the SFWTF updated the “Frequently Asked Questions” 18 page on its website in order to carry out the President’s directive (“Employee FAQs”). See 19 Vaccinations, FAQs, Safer Federal Workforce, https://www.saferfederalworkforce.gov/ 20 faq/vaccinations/ (last visited Jan. 25, 2022). The Employee FAQs initially provided a 21 deadline of November 22, 2021 for all federal employees to be fully vaccinated. Id. The 22 FAQs, like the contractor guidance, also provide that federal employees will be considered 23 fully vaccinated two weeks after they received the final dose of an approved vaccine. Id. 24 The FAQs further provide that the vaccine mandate applies to federal employees who have 25 already been infected with COVID-19 and to those that are working remotely full time. Id. 26 To date, Defendants have neither issued a formal guidance document nor published a notice 27 in the Federal Register with respect to the Employee Mandate. 28

-7- 1 B. Procedural Background 2 On September 14, 2021, the State initiated this action. (Doc. 1.) The State’s initial 3 Complaint contained only a single claim for relief, based on the Constitution’s Equal 4 Protection Clause.4 (Doc. 1 at 13–14 ¶¶ 39–45.) After the scope of the federal vaccine 5 mandates became clear, however, the State filed a much broader Amended Complaint, 6 containing eleven claims for relief. (Doc. 14 at 43–51 ¶¶ 114–64.) The Amended 7 Complaint was joined by Plaintiff Reble, then proceeding under the pseudonym John Doe, 8 who also filed a Motion to Proceed Pseudonymously. (Doc. 16.) With the Amended 9 Complaint, Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary 10 Injunction. (Doc. 34.) The motion was briefed on an expedited schedule (Docs. 34, 44, 52, 11 58) and, on November 10, 2021, the Court held oral argument. 12 At oral argument, Defendants’ counsel notified the Court that, earlier that day, the 13 SFWTF had issued revised contractor guidance and Acting OMB Director Young had 14 issued a revised determination that the guidance would promote economy and efficiency 15 in federal contracting. (Doc. 69 at 48–49.) At the conclusion of oral argument, in light of 16 Defendants’ revised guidance and determination, and certain deficiencies in Plaintiffs’ 17 Amended Complaint, the Court denied the Motion for Temporary Restraining Order and 18 Preliminary Injunction without prejudice and granted Plaintiffs leave to file a second 19 amended complaint. (Doc. 64.) 20 Plaintiffs filed the Second Amended Complaint (Doc. 70) and the instant Motion 21 for Preliminary Injunction (Doc. 72) on November 19, 2021. The Second Amended 22 Complaint was joined by Plaintiffs PLEA and Local 493, who asserted claims against 23 Defendant the City of Phoenix, a federal contractor, for implementing the federal 24 Defendants’ Contractor Mandate.5 25 With their Second Amended Complaint, Plaintiffs filed a Motion to Bifurcate 26 Claims and Consolidate Trial on the Merits. (Doc. 73.) In that motion, Plaintiffs seek to 27 4 Plaintiffs elected not to include this claim in their Third Amended Complaint. (Doc. 134.) 5 On November 18, 2021, the City, citing the Contractor Mandate, notified its employees 28 that they would be required to receive the COVID-19 vaccine by January 18, 2022 or face discipline, up to and including termination.

-8- 1 bifurcate Counts I–VIII (the “Vaccine Counts”) and Counts IX–XIII (the “Immigration 2 Counts”) and consolidate adjudication of the Motion for Preliminary Injunction with a trial 3 on the merits of the Vaccine Counts.6 Plaintiffs’ motion is unopposed; the parties agree 4 that this case presents “almost exclusively legal issues,” and that “discovery and trial 5 procedures are unnecessary.” (Doc. 127 at 2.) The Court agrees. Bifurcation and 6 consolidation will serve the interest of judicial economy and convenience, will expedite 7 proceedings, and will not prejudice any party. See Fed. R. Civ. P. 42(b) (bifurcation may 8 be ordered “[f]or convenience, to avoid prejudice, or to expedite and economize”); Fed. R. 9 Civ. P. 65(a)(2) (“Before or after beginning the hearing on a motion for a preliminary 10 injunction, the court may advance the trial on the merits and consolidate it with the 11 hearing.”). Accordingly, the Court will grant Plaintiffs’ motion. 12 Before the instant Motion for Preliminary Injunction was fully briefed, decisions 13 were handed down in four parallel cases involving states’ challenges to the Contractor 14 Mandate: Kentucky v. Biden, No. 3:21-cv-00055, — F. Supp. 3d —, 2021 WL 5587446 15 (E.D. Ky. Nov. 30, 2021), Georgia v. Biden, No. 1:21-cv-00163, — F. Supp. 3d —, 2021 16 WL 5779939 (S.D. Ga. Dec. 7, 2021), Missouri v. Biden, No. 4:21-cv-1300, — F. Supp. 17 3d —, 2021 WL 5998204 (E.D. Mo. Dec. 20, 2021), and Florida v. Nelson, No. 8:21-cv- 18 02524 (M.D. Fla. Dec. 22, 2021). In Kentucky, the district court granted plaintiffs’ motion 19 for a preliminary injunction and enjoined enforcement of the Contractor Mandate in 20 Kentucky, Ohio, and Tennessee. 2021 WL 5587446, at *14. In Missouri, the court likewise 21 granted plaintiffs’ request for an injunction, and enjoined enforcement of the Contractor 22 Mandate in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North 23 Dakota, South Dakota, and Wyoming. Slip op. at 13. In Florida, the court again agreed 24 with Plaintiffs, and enjoined enforcement of the Contractor Mandate in Florida. Slip op. at 25 38. In Georgia, the court again granted plaintiffs’ motion for a preliminary injunction, but 26 issued a nationwide injunction barring enforcement of the Contractor Mandate “in any state 27 or territory of the United States of America.” 2021 WL 5779939, at *12. 28 6 Plaintiffs presently seek injunctive relief only on the Vaccine Counts.

-9- 1 Shortly after the Georgia court issued the nationwide injunction, Defendants moved 2 to stay this action while the injunction was pending. (Doc. 117.) See Texas v. Biden, No. 3 3:21-cv-309-JVB (S.D. Tex. Dec. 10, 2021) (granting similar motion to stay). The Court 4 held a Status Conference with the parties on December 14, 2021, to discuss Defendants’ 5 Motion to Stay, the scope of Plaintiffs’ Second Amended Complaint, Plaintiffs’ Motion to 6 Bifurcate Claims and Consolidate Trial on the Merits, and Plaintiff Reble’s Motion to 7 Proceed Pseudonymously. (Docs. 111, 114, 117.) After the hearing, the Court denied 8 Defendants’ Motion to Stay and Plaintiff Reble’s Motion to Proceed Pseudonymously. 9 (Docs. 121, 122.) Plaintiffs then filed a Third Amended Complaint adding Plaintiff 10 Reble’s true name. (Doc. 134.) 11 II. LEGAL STANDARD 12 An injunction is an “extraordinary remedy never awarded as of right.” Winter v. 13 Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “To be entitled to a permanent 14 injunction, a plaintiff must demonstrate: (1) actual success on the merits; (2) that it has 15 suffered an irreparable injury; (3) that remedies available at law are inadequate; (4) that the 16 balance of hardships justify a remedy in equity; and (5) that the public interest would not 17 be disserved by a permanent injunction.” Indep. Training & Apprenticeship Program v. 18 Cal. Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013) (citing eBay Inc. v. 19 MerchExch., LLC, 547 U.S. 388, 391 (2006)); see also Amoco Prod. Co. v. Village of 20 Gambell, 480 U.S. 531, 546 n.12 (1987) (“The standard for a preliminary injunction is 21 essentially the same as for a permanent injunction with the exception that the plaintiff must 22 show a likelihood of success on the merits rather than actual success.”). “The decision to 23 grant or deny permanent injunctive relief is an act of equitable discretion by the district 24 court.” eBay Inc., 547 U.S. at 391. 25 III. DISCUSSION 26 Plaintiffs seek a permanent injunction barring Defendants from enforcing the 27 Contractor and Employee Mandates nationwide. (Doc. 72 at 25.) Plaintiffs challenge the 28 Contractor Mandate’s legality on numerous grounds. First, Plaintiffs contend that the

- 10 - 1 Contractor Mandate exceeds the President’s statutory authority under the Procurement Act. 2 (Doc. 134 at 54–56 ¶¶ 150–60.) The Procurement Act, they argue, was enacted “to ensure 3 the efficient purchase of goods and services, not to empower the Executive Branch to 4 engage in far-reaching public health programs that are either unrelated to—or outright 5 contrary to—the explicit efficiency rationale.” (Doc. 34 at 23.) There is no nexus, in 6 Plaintiffs’ view, between the Contractor Mandate and federal procurement and, even if 7 there were, “Defendants have not made any specific administrative findings” establishing 8 such a nexus. (Id. at 24–27.) Second, Plaintiffs argue that by failing to publish the 9 contractor guidance in the Federal Register for public comment, Defendants violated the 10 procedural requirements of the Procurement Policy Act. (Doc. 134 at 56–57 ¶¶ 161–66.) 11 Third, Plaintiffs claim that the mandate violates the Tenth Amendment and principles of 12 federalism because “the power to impose vaccine mandates, to the extent that such power 13 exists at all, is part of the police powers reserved to the States.” (Docs. 34 at 19; 134 at 58– 14 59 ¶¶ 175–81.) Fourth, Plaintiffs claim, under the Administrative Procedure Act (“APA”), 15 that the mandate is arbitrary and capricious and should have gone through notice-and- 16 comment procedures.7 (Doc. 134 at 61–64 ¶¶ 192–215.) Fifth, Plaintiffs contend that the 17 mandate violates the anticommandeering doctrine “by requiring agencies and 18 political subdivisions of the State to enforce the Contractor Mandate against its 19 own employees.” (Id. at 59–60 ¶¶ 182–85.) Finally, Plaintiffs contend that, to the extent 20 the mandate is authorized by statute, the statute violates the nondelegation doctrine. 8 (Id. 21 at 60–61 ¶¶ 184–89.) 22 Plaintiffs challenge both the Contractor Mandate and Employee Mandate on two 23 additional grounds. First, they assert that the mandates are unlawful under the Emergency 24 Use Authorization statute, 21 U.S.C. § 360bbb-3, because the mandates “strip from all 25 7 The Court will not address the substance of Plaintiffs’ APA claims because those claims have not been adequately briefed. The claims are asserted in Plaintiffs’ Third Amended 26 Complaint (see Doc. 134 at 61–64 ¶¶ 192–215), but have not been addressed in any subsequent filing. Plaintiffs have therefore failed to demonstrate that they are entitled to 27 relief on those grounds. 8 The Court addresses Plaintiffs’ Tenth Amendment, anticommandeering doctrine, and 28 nondelegation doctrine arguments in conjunction with its analysis of whether the Contractor Mandate violates the Procurement Act. See infra Section III.B.1.

- 11 - 1 federal employees, contractors, and subcontractors” the right to refuse to receive a vaccine 2 approved through abbreviated emergency use procedures—an opportunity that, in 3 Plaintiffs’ view, the statute provides. (Id. at 57–58 ¶¶ 167–71.) Second, Plaintiffs argue 4 that the mandates violate the due process rights of federal and contractor employees to 5 bodily integrity and to refuse medical treatment. (Id. at 58 ¶¶ 172–74.) 6 In addition to contesting the substance of Plaintiffs’ arguments, Defendants contend 7 that the Court lacks jurisdiction to entertain Plaintiffs’ claims. Thus, before addressing the 8 substance of those claims, the Court must determine whether it has jurisdiction. 9 A. Jurisdiction 10 1. Justiciability 11 Article III authorizes the federal courts to resolve only “cases” and “controversies.” 12 U.S. Const. art. III, § 2. Federal courts may not issue pronouncements on questions of law 13 arising outside of such “cases and controversies,” because doing so would be “inimical to 14 the Constitution’s democratic character.” Arizona Christian Sch. Tuition Org. v. Winn, 563 15 U.S. 125, 133 (2011). This constitutional limitation on federal jurisdiction is enforced 16 through various justiciability doctrines. Defendants assert that Plaintiffs’ claims are 17 nonjusticiable under two such doctrines: standing and ripeness. 18 The “irreducible constitutional minimum of standing” consists of three components. 19 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The party invoking federal jurisdiction 20 must prove that: “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized 21 and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable 22 to the challenged action of the defendant; and (3) it is likely, as opposed to merely 23 speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, 24 Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan, 504 25 U.S. at 560–61). 26 Ripeness, on the other hand, is “‘peculiarly a question of timing,’ designed to 27 ‘prevent the courts, through avoidance of premature adjudication, from entangling 28 themselves in abstract disagreements.’” Thomas v. Anchorage Equal Rts. Comm’n, 220

- 12 - 1 F.3d 1134, 1138 (9th Cir. 2000) (en banc) (citing Reg’l Rail Reorg. Act Cases, 419 U.S. 2 102, 140 (1974); Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)). Ripeness, like 3 standing, includes both a constitutional and a prudential component. See In re Coleman, 4 560 F.3d 1000, 1004 (9th Cir. 2009). Constitutional ripeness requires that the issues 5 presented be “definite and concrete, not hypothetical or abstract.” Thomas, 220 F.3d at 6 1139. In assessing whether a case is ripe for adjudication, the Court must ask “whether the 7 plaintiffs face ‘a realistic danger of sustaining a direct injury as a result of the [challenged 8 law’s] operation or enforcement,’ or whether the alleged injury is too ‘imaginary’ or 9 ‘speculative’ to support jurisdiction.” Id. (quoting Babbitt v. United Farm Workers Nat’l 10 Union, 442 U.S. 289, 298 (1979)). Where a dispute hangs on “contingent future events that 11 may not occur as anticipated, or indeed may not occur at all,” Clinton v. Acequia, Inc., 94 12 F.3d 568, 572 (9th Cir. 1996) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 13 U.S. 568, 580–81 (1985)), it may be too speculative to present a justiciable controversy. 14 See In re Coleman, 560 F.3d at 1005. On the other hand, “a litigant need not ‘await the 15 consummation of threatened injury to obtain preventive relief. If the injury is certainly 16 impending, that is enough.’” Addington v. U.S. Airline Pilots Ass’n, 606 F.3d 1174, 1179 17 (9th Cir. 2010) (emphasis omitted) (quoting United States v. Streich, 560 F.3d 926, 931 18 (9th Cir. 2009)). 19 Prudential ripeness, on the other hand, requires the Court to assess “the fitness of 20 the issues for judicial decision” and “the hardship to the parties of withholding court 21 consideration.” Abbott Labs., 387 U.S. at 149. The Ninth Circuit has held that “[a] claim is 22 fit for decision if the issues raised are primarily legal, do not require further factual 23 development, and the challenged action is final.” US West Commc’ns v. MFS Intelenet, 24 Inc., 193 F.3d 1112, 1118 (9th Cir. 1999) (quoting Standard Alaska Prod. Co. v. Schaible, 25 874 F.2d 624, 627 (9th Cir. 1989)). To satisfy the hardship requirement, on the other hand, 26 the party invoking federal jurisdiction must show “hardship of a legal kind, or something 27 that imposes a significant practical harm.” Nat. Res. Def. Council v. Abraham, 388 F.3d 28 701, 706 (9th Cir. 2004).

- 13 - 1 Ripeness and standing are closely related doctrines. See Thomas, 220 F.3d at 1138 2 (“Sorting out where standing ends and ripeness begins is not an easy task.”); see also Susan 3 B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014) (“The doctrines of standing and 4 ripeness ‘originate’ from the same Article III limitation.”). Indeed, the Ninth Circuit has 5 characterized the ripeness inquiry as “standing on a timeline.” Thomas, 220 F.3d at 1138. 6 Thus, whether the Court addresses justiciability under the rubric of standing or ripeness, 7 the analysis is materially the same. See Montana Env’t Info. Ctr. v. Stone-Manning, 766 8 F.3d 1184, 1189 (9th Cir. 2014). 9 i. Reble 10 Defendants contend that Plaintiff Reble’s claims challenging the Employee 11 Mandate are constitutionally and prudentially unripe. (Doc. 52 at 27.) The Court agrees. 12 Reble, a Criminal Investigator with the U.S. Marshals Service, has been a 13 Department of Justice employee for more than 30 years. He works at the federal 14 courthouse in Phoenix, Arizona. (Doc. 134 at 7–8 ¶ 12.) He strongly opposes and has not 15 taken the COVID-19 vaccine. (Id.) He does not intend to comply with the Employee 16 Mandate and has requested a medical exemption therefrom. 9 (Id.) His exemption request 17 has not yet been granted or denied and instead remains pending with the U.S. Marshals 18 Service. (Id.) While his exemption request is pending, Reble is not required to be 19 vaccinated and is not subject to disciplinary action. (See Doc. 138 at 2 n.1.) In the event 20 his exemption request is ultimately granted, Reble will not have to be vaccinated. If his 21 exemption request is denied, he will have two weeks from the denial to receive his first (or 22 only) dose of an approved vaccine before being subject to discipline. (Docs. 52 at 28; 138 23 at 2 n.1.) 24 Reble challenges the Employee Mandate on two grounds. First, he argues the 25 mandate is unlawful under § 360bbb-3 because it does not permit him to refuse to receive 26 a vaccine approved through emergency use procedures. (Doc. 134 at 57–58 ¶¶ 167–71.) 27 Second, he argues that the mandate violates his substantive due process rights to “bodily 28 9 Reble concedes that he does not qualify for a religious exemption to the Employee Mandate. (See Doc. 134 at 40–41 ¶ 112.)

- 14 - 1 integrity” and to “refuse medical treatment.” (Id. at 58 ¶¶ 172–74.) 2 Reble’s claims are nonjusticiable, because they depend on “contingent future events 3 that may not occur as anticipated, or indeed may not occur at all.” Trump v. New York, 592 4 U.S. —, 141 S. Ct. 530, 535 (2020) (quoting Texas v. United States, 523 U.S. 296, 300 5 (1998)). While his exemption request is pending with the Marshals Service, Reble is not 6 required to be vaccinated and is not subject to discipline. And, in the event his exemption 7 is eventually granted, he will not have to be vaccinated against COVID-19 at all. In that 8 case, his claimed Article III injuries will never occur—he will not have to receive a vaccine 9 approved through emergency use procedures, and his substantive due process rights will 10 not be violated. See Church v. Biden, No. 1:21-cv-2815, 2021 WL 5179215, at *1 (D.D.C. 11 Nov 8, 2021) (“Plaintiffs, therefore, come before this Court complaining of a compulsory 12 inoculation they may never need to take, and of adverse employment actions they may 13 never experience.”). In that event, any opinion issued by the Court on the merits of Reble’s 14 claims would be rendered merely advisory. See 13 Charles Alan Wright & Arthur R. 15 Miller, Federal Practice and Procedure § 3529.1 (3d ed. 1998) (“The oldest and most 16 consistent thread in the federal law of justiciability is that federal courts will not give 17 advisory opinions.”). 18 Reble’s arguments in favor of justiciability are unpersuasive. He first contends that, 19 “[g]iven the limited and strict approach Defendants have applied to exemption requests, 20 and reports that nearly all such requests are being denied,” it is likely that his exemption 21 request will also be denied. (Doc. 134 at 8 ¶ 12.) But the record is devoid of evidence that 22 nearly all requests are being denied or that Reble’s request, in particular, is likely to be 23 denied. Reble likewise provides no evidence that the Marshals Service or Department of 24 Justice will impose sanctions or discipline in the event his request is granted. In fact, 25 Defendants’ policies make clear that exemption requests will be considered seriously, and 26 that no discipline will be imposed in the event exemptions are granted. See, e.g., 27 Vaccinations, FAQs, Safer Federal Workforce, https://www.saferfederalworkforce.gov/ 28 faq/vaccinations/ (last visited Jan. 25, 2022) (“Determining whether an exception is legally

- 15 - 1 required will include consideration of factors such as the basis for the claim; the nature of 2 the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s 3 operations.”). 4 Reble further contends that because his claims involve only legal, and not factual, 5 disputes, the claims are ripe for judicial review, notwithstanding his alleged injury being 6 contingent on future events. (Doc. 144 at 2–3.) He is mistaken. While it is generally true 7 as a matter of prudential ripeness that the more an issue presented is purely one of law, the 8 more likely the issue is to be ripe, see, e.g., Artway v. Att’y Gen. of N.J., 81 F.3d 1235, 9 1249 (3d Cir. 1996), the mere potential for future injury, standing alone, is insufficient to 10 render a case justiciable under Article III, even where the issue presented is primarily legal, 11 see Friends of Keeseville, Inc. v. FERC, 859 F.2d 230, 236 (D.C. Cir. 1988). 12 Reble’s claims are therefore unripe. See Church, 2021 WL 5179215, at *8–10 13 (holding federal employees’ claims challenging EO 14043 unripe due to pending exception 14 requests); Rodden v. Fauci, No. 3:21-cv-317, — F. Supp. 3d. —, 2021 WL 5545234, at *3 15 (S.D. Tex. Nov. 27, 2021) (same); McCray v. Biden, No. 1:21-cv-2882, 2021 WL 5823801, 16 at *8–9 (D.D.C. Dec. 7, 2021) (same); Donovan v. Vance, — F. Supp. 3d —, No. 4:21-cv- 17 5148, 2021 WL 5979250, at *4–5 (E.D. Wash. Dec. 17, 2021) (same); AFGE Local 501 v. 18 Biden, No. 21-cv-23828, slip op. at 13–18 (S.D. Fla. Dec. 22, 2021) (same). 19 ii. The State 20 Defendants also contend that the State’s claims are nonjusticiable. In particular, 21 Defendants argue that the State: (1) cannot show “sovereign injury” because “the federal 22 government’s regulation of its own contractual affairs does not impinge on the state’s 23 police power,” and (2) cannot show “economic injury” because the State “provides no 24 evidence that it has lost, or imminently will lose, any federal contract; and its generalized 25 fears of economic disruptions are too speculative to satisfy Article III.” (Doc. 108 at 8.) 26 The State advances multiple standing theories in response. First, it alleges that 27 “Defendants’ actions directly injure the State’s sovereign, quasi-sovereign, and proprietary 28 interests by denying Arizona residents of the benefit of the Due Process Clause.” (Doc. 134

- 16 - 1 at 39 ¶ 105.) Second, the State argues that it has standing in its capacity as a contractor, 2 because: (1) the Contractor Mandate requires the State to either violate the Constitution 3 and federal and state law or face the loss of federal funds and contracts; and (2) the 4 Contractor Mandate will cause State employees to resign, which will cause significant 5 harm to the State’s operations given the current labor market. (Id. ¶ 106.) Third, “a natural 6 and predictable consequence of the Contractor Mandate is that numerous employees may 7 be fired, retire, or quit their jobs, including employees of businesses within the State. This 8 injures the State’s quasi-sovereign interest in the economic well-being of its citizens[, and] 9 injures the State in that it will likely increase the burden on the State’s unemployment 10 insurance funds.” (Id. ¶ 107.) Fourth, “a natural and predictable consequence of the 11 Contractor Mandate is that employers who are critical to the supply chain, and are also 12 federal contractors, will likely lose significant numbers of employees. It is entirely 13 predictable, therefore, that the Contractor Mandate will exacerbate current supply chain 14 issues.” (Id. at 39–40 ¶ 108.) Fifth, the State contends that “[b]ecause the Contractor 15 Mandate claims to supersede all contrary State law, it injures Arizona’s interest in setting 16 its own laws regarding public health and workplace issues that would otherwise apply to 17 contractors within Arizona’s borders, as well as preempting State religious-liberty 18 protections under the State Constitution and State statute.” (Id. at 40 ¶ 109.) Finally, the 19 State contends that because the “Contractor Mandate requires employees to prove 20 vaccination status with documentation,” and because “agencies of the State often possess 21 such documentation,” “[a] predictable consequence of the Contractor Mandate is . . . to 22 increase the number of people seeking documentation from the [State] regarding 23 vaccination status,” which will in turn “increase costs to the State.” (Id. ¶ 110.) 24 State standing depends on the capacity in which the state initiates suit. See Gov’t of 25 Manitoba v. Bernhardt, 923 F.3d 173, 178 (D.C. Cir. 2019); see also Erwin Chemerinsky, 26 Federal Jurisdiction 125 (8th ed. 2021) (“[A] distinction must be drawn between a 27 government entity suing to remedy injuries that it has suffered and suing in a representative 28 capacity on behalf of its citizens.”). In a direct-injury suit, the state seeks redress for its

- 17 - 1 own injury. In such a case, the state need only meet the ordinary demands of Article III. 2 That is, it needs to prove only that it has suffered an injury in fact that is fairly traceable to 3 the defendant’s conduct and redressable by a favorable ruling. Bernhardt, 923 F.3d at 178. 4 In a parens patriae suit, on the other hand, the state seeks redress for the injuries of its 5 citizens. State suits as parens patriae are permitted because “at a minimum, a State has a 6 quasi-sovereign interest ‘in the health and well-being—both physical and economic—of 7 its residents’ and ‘in not being discriminatorily denied its rightful status within the federal 8 system.’” Bernhardt, 922 F.3d at 178 (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico 9 ex rel. Barez, 458 U.S. 592, 607 (1982)). To have standing in such a case, the state 10 ordinarily must allege both that its citizens are harmed and that the harm is one that the 11 state, if possible, would likely attempt to address through its lawmaking powers. See Snapp, 12 458 U.S. at 607. 13 The Supreme Court has long-since held, however, that states lack standing as parens 14 patriae to bring suit against the federal government. See Massachusetts v. Mellon, 262 U.S. 15 447, 485–86 (1923) (“While the state, under some circumstances, may sue [as parens 16 patriae] for the protection of its citizens, it is no part of its duty or power to enforce their 17 rights in respect of their relations with the federal government.”). This rule, often referred 18 to as the “Mellon bar,” is founded on the principle that because the citizens of a state “are 19 also citizens of the United States,” id. at 485, the federal government is “the ultimate parens 20 patriae of every American citizen.” South Carolina v. Katzenbach, 383 U.S. 301, 324 21 (1966). Thus, Arizona cannot sue Defendants as parens patriae to vindicate the rights of 22 its citizens. Mellon, 262 U.S. 447. To have standing to challenge the vaccine mandates, 23 then, it must show direct injury. 24 The State has shown that it is likely to suffer direct injury as a result of the 25 Contractor Mandate. The State and its agencies are federal contractors subject to the 26 mandate. Absent an injunction, the State will be required to choose between forfeiting 27 numerous and significant federal contracts, and requiring its employees to be vaccinated 28 against COVID-19. Although none of the State’s current contracts include a vaccination

- 18 - 1 clause, federal agencies have already demanded that multiple Arizona agencies, 2 including its public universities, implement the Contractor Mandate and require their 3 employees to receive the vaccine. Despite Defendants’ assertions, these demands have, on 4 multiple occasions, been phrased as mandatory, rather than permissive, requests for 5 contract modifications. A brief recitation of these demands is warranted. 6 1. The Arizona Board of Regents (“ABOR”) oversees the management, 7 direction, and governance of Arizona’s public universities—Arizona State University, 8 Northern Arizona University, and the University of Arizona. (Doc. 134-5 at 2 ¶ 1.) All 9 three universities are federal contractors. In 2021, their combined federal contracting 10 revenues totaled $1,207,926,800. (Id. ¶ 2.) The universities will thus forfeit more than a 11 billion dollars if they do not adhere to the Contractor Mandate. As a result, they are now 12 actively engaged in efforts to comply with the mandate, including communicating the 13 vaccination requirement to current, incoming, and prospective employees; gathering proof 14 of vaccination; and reviewing requests for accommodations from individuals who cannot 15 be vaccinated for medical or religious reasons. (Id. at 2–3 ¶¶ 3–4.) 16 2. The Arizona State Retirement System (“ASRS”), a State agency that 17 administers benefits for qualified Arizona employees, owns a building in Phoenix, Arizona. 18 ASRS leases space in the building to GSA. (Doc. 48-4 at 3.) On October 18, 2021, GSA 19 sent an email to ASRS stating that GSA was “amending its existing leases” pursuant to EO 20 14042 and directing ASRS to review and sign an amendment to its current lease requiring 21 ASRS to adhere to the Contractor Mandate. (Id. at 7–9.) 22 3. The Division of Civil Rights Section (“DCRS”) of the Arizona Attorney 23 General’s Office (“AGO”) works closely with federal agencies, including the Equal 24 Employment Opportunity Commission (“EEOC”), to enforce civil rights laws. Since 2019, 25 DCSC and EEOC have worked under a work-sharing agreement through which EEOC 26 provides significant funding to DCRS to assist it in enforcing Title VII. (Doc. 48-3 at 3– 27 4.) During the week of October 25, 2021, EEOC requested that DCRS extend its workshare 28 agreement and incorporate a vaccination clause. (Id. at 4.) EEOC gave DCRS a deadline

- 19 - 1 of November 2, 2021, to do so. (Id.) 2 4. The Arizona Department of Transportation (“ADOT”) owns a port of entry 3 in Nogales, Arizona, that it leases to GSA for use by the Federal Motor Carrier Safety 4 Administration. (Doc. 134-6 at 4–5.) On October 14, 2021, GSA sent ADOT a letter stating 5 that a contract modification implementing the Contractor Mandate “is mandatory and your 6 acceptance is required in order to ensure compliance with EO 14042” and that contract 7 “modifications must be finalized by November 14, 2021.” (Id. at 7 (emphasis in original).) 8 5. On October 22, 2021, the Center for Disease Control (“CDC”) emailed the 9 Arizona Department of Health Services (“ADHS”) requesting that ADHS agree to a 10 bilateral contract modification incorporating the Contractor Mandate. (Doc. 134-7 at 4–5.) 11 The email indicated that “Contractors will sign and return the modification via email 12 to the Contracting Officer of record by November 9, 2021.” (Id. at 11 (emphasis in 13 original).) 14 6. The Arizona Department of Public Safety (“DPS”) contracts with the 15 National Park Service (“NPS”) to provide laboratory testing. On November 2, 2021, NPS 16 sent an email to DPS demanding that DPS sign a contract modification incorporating the 17 Contractor Mandate. (Doc. 134-8 at 4–5.) 18 7. The Arizona Department of Corrections, Rehabilitation, and Reentry 19 (“ADCRR”) has a contract with the U.S. Forest Service through which Arizona inmates 20 perform work on Forest Service land. (Doc. 134-9 at 4–5.) On September 28, 2021, the 21 Forest Service sent an email to ADCRR stating that anyone performing under the contract 22 would be required to comply with new safeguards, including mandatory vaccine 23 certification. (Id. at 7.) 24 Defendants argue that because many of these contracts will remain in force for 25 several more years, the State’s harm is too remote to confer standing. But Defendants are 26 not demanding that Arizona agencies agree to incorporate a vaccination clause when their 27 contracts may be up for renewal; instead, Defendants are requiring State agencies to agree 28 to modify their contracts now. Thus, Defendants’ demands put the State to an immediate

- 20 - 1 choice: require its employees to be vaccinated now, or face the loss of consequential federal 2 contracts in the future. See President Joseph Biden, Remarks on Fighting the COVID-19 3 Pandemic (Sept. 9, 2021), https://www.whitehouse.gov/briefing-room/speeches- 4 remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/. 5 (“If you want to do business with the federal government, vaccinate your workforce.”); see 6 also Kentucky, 2021 WL 5587446, at *4 (“[I]f the government is already attempting to 7 require contracts not officially covered by the vaccine mandate to still include such a 8 mandate, it stands to reason that contractors who do not comply will likely be blacklisted 9 from future contracting opportunities if they refuse to comply.”). The State’s alleged harm 10 is therefore imminent and real. 11 Relatedly, Defendants argue that the Contractor Mandate does not invade the State’s 12 sovereignty at all because it is merely “an exercise of the federal government’s 13 ‘unrestricted power’ to ‘determine those with whom it will deal, and to fix the terms and 14 conditions upon which it will’ enter into contracts.” (Doc. 108 at 12 (citing Perkins v. 15 Lukens Steel Co., 310 U.S. 113, 127 (1940)).) At first blush, this argument seems to have 16 some salience. After all, a private entity could require parties with whom it contracts to 17 either vaccinate their workforces or risk losing its business. It may seem odd, then, to 18 preclude the federal government from doing what a private corporation could do. But, 19 despite Defendants’ arguments to the contrary, the federal government is not simply 20 another contracting entity. It is both a contractor and a regulator, wielding immense 21 coercive power. And although federal contracts provide the mechanism through which the 22 Contractor Mandate is implemented, the mandate is unquestionably both regulatory and 23 policy-making in character. 24 The D.C. Circuit rejected a similar argument in Chamber of Commerce v. Reich. 74 25 F.3d 1322 (D.C. Cir. 1996). That case involved a challenge to an EO issued by President 26 Clinton prohibiting federal agencies from contracting with employers that hired permanent 27 replacements for lawfully striking employees. Id. at 1324. There, as here, the federal 28 government argued that “if a private contractor were permitted to refuse to buy goods from

- 21 - 1 an employer who permanently replaced strikers—which ordinarily he would be—then so 2 should the federal government.” Id. at 1336. As the primary support for its argument, the 3 federal government cited a 1993 case in which the Supreme Court held that a 4 Massachusetts agency’s decision to require certain non-union contractors to enter into a 5 collective bargaining agreement to be eligible for contracts on the Boston Harbor cleanup 6 project was “not government regulation,” because the agency was acting only in its 7 capacity as a contractor. See Bldg. & Const. Trades Council of Metro. Dist. v. Associated 8 Builders & Contractors of Massachusetts/Rhode Island, Inc. (Boston Harbor), 507 U.S. 9 218, 232 (1993). In rejecting the government’s argument, the D.C. Circuit explained: 10 In Boston Harbor, the Court’s analysis of the behavior of [the 11 Massachusetts agency] was based on the premise, stated after its summary of its precedent, that: 12 13 “When the State acts as regulator, it performs a role that is characteristically a governmental rather than a private role, 14 boycotts notwithstanding. Moreover, as regulator of private conduct, the State is more powerful than private parties. These 15 distinctions are far less significant when the State acts as a 16 market participant with no interest in setting policy . . . . We left open [in Wis. Dep’t of Indus. v. Gould Inc., 475 U.S. 282, 17 286 (1986)] the question whether a State may act without 18 offending the pre-emption principles of the NLRA when it acts as a proprietor and its acts therefore are not ‘tantamount to 19 regulation,’ or policy-making.” [Boston Harbor, 507 U.S.] at 20 229 (emphases added). The premise on which the Court’s further analysis rested, then, was that the Massachusetts 21 governmental entity . . . was not seeking to set general policy 22 in the Commonwealth; it was just trying to operate as if it were an ordinary general contractor whose actions were 23 “specifically tailored to one particular job, the Boston Harbor 24 clean-up project.” Id. at 232. Surely, the result would have been entirely different, given the Court’s reasoning, if 25 Massachusetts had passed a general law or the Governor had issued an Executive Order requiring all construction 26 contractors doing business with the state to enter into collective 27 bargaining agreements . . . . 28 It does not seem to us possible to deny that the President’s

- 22 - 1 Executive Order seeks to set a broad policy governing the 2 behavior of thousands of American companies and affecting millions of American workers. The President has, of course, 3 acted to set procurement policy rather than labor policy. But the former is quite explicitly based—and would have to be 4 based—on his views of the latter.10 5 Reich, 74 F.3d at 1336–37. 6 So too here. It is beyond doubt that the Contractor Mandate “seeks to set a broad 7 policy governing the behavior of thousands of American companies and affecting millions 8 of American workers.” Id. at 1337; see also Path Out of the Pandemic: President Biden’s 9 COVID-19 Action Plan, The White House, https://www.whitehouse.gov/covidplan/ (last 10 visited Jan. 25, 2022) (describing EO 14042 as a plan “[r]equiring [v]accinations 11 for . . . [m]illions of [c]ontractors”). Workers employed by federal contractors comprise 12 approximately one-fifth of the entire U.S. labor force and federal government spending 13 accounts for more than a quarter of the national economy. (Doc. 134 at 36 ¶ 98, 38 ¶ 104.) 14 See History of Executive Order 11246, Office of Contract Compliance Programs, 15 Department of Labor, https://www.dol.gov/agencies/ofccp/about/executive-order-11246- 16 history (last visited Jan. 25, 2022). Defendants’ argument that the State has no standing 17 because the federal government is merely acting as contractor is thus unpersuasive. The 18 Contractor Mandate regulates the State, and the State has standing to challenge that 19 regulation. See Massachusetts v. EPA, 549 U.S. 497, 520 (2007) (holding that states are 20 “entitled to special solicitude in the standing analysis”). 21 The State also “ha[s] a legally protected sovereign interest in ‘the exercise of 22 sovereign power over individuals and entities within [its] jurisdiction[, which] involves the 23 power to create and enforce a legal code.’” Wyoming ex rel. Crank v. United States, 539 24 F.3d 1236, 1242 (10th Cir. 2008) (quoting Snapp, 458 U.S. at 601); see also Hawaii v. 25 Trump, 859 F.3d 741, 765 (9th Cir. 2017), vacated on other grounds, 138 S. Ct. 377 (2017) 26 (mem.) (similar); Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) 27 28 10 While the D.C. Circuit addressed the government’s argument on the merits, the court’s reasoning applies with equal force to Defendants’ jurisdictional argument.

- 23 - 1 (collecting cases where state was found to possess sovereign standing on this basis). Thus, 2 because the Contractor Mandate clearly conflicts with Arizona’s laws and governance 3 policies, see infra Section III.B.1, the State has Article III standing to challenge its legality. 4 See Oregon v. Trump, 406 F. Supp. 3d 940, 958 (D. Or. 2019) (“A state or locality has 5 standing to challenge interference with its operational and governance decisions.”); see 6 also Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 50 n.17 (1986) 7 (holding that “there is no question concerning the State’s standing” where federal law 8 “diminish[es] . . . [the State’s] sovereignty” by interfering with “the State’s ability to 9 structure its relationship with its employees” (internal citations omitted)). 10 The Court agrees with Defendants, however, that the State lacks standing to 11 challenge the Employee Mandate. Neither the State nor its employees are subject to the 12 Employee Mandate. Nor does the Employee Mandate threaten to infringe the State’s 13 sovereignty by regulating in an area of traditional state concern or by displacing 14 otherwise valid state law. Instead, it is an exercise of the President’s considerable 15 constitutional authority to regulate the internal affairs of the executive branch. See Free 16 Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010) (“[I]f any power whatsoever is in its 17 nature Executive, it is the power of appointing, overseeing, and controlling those who 18 execute the laws.” (citing James Madison, 1 Annals of Cong. 463 (1789)); see also Rydie 19 v. Biden, No. CV DKC 21-2696, 2021 WL 5416545, at *3 (D. Md. Nov. 19, 2021) (“The 20 President derives his authority to regulate the federal workforce from the Constitution, not 21 from Congress’s enactments.”). Plaintiffs’ challenge to the Employee Mandate will 22 therefore be denied, and the remainder of this Order will address only Plaintiffs’ claims 23 challenging the Contractor Mandate. 24 2. The Contract Disputes Act and the Tucker Act 25 Defendants argue that even if the State has Article III standing, its claims 26 challenging the Contractor Mandate come within the exclusive jurisdiction of the Court of 27 Federal Claims under the Contract Disputes Act (“CDA”) and the Tucker Act, such that 28 this Court is not a proper forum. (Doc. 52 at 34–16.)

- 24 - 1 The CDA “established a comprehensive framework for resolving contract disputes 2 between executive branch agencies and government contractors.” Anselma Crossing, L.P. 3 v. USPS, 637 F.3d 238, 240 (3d Cir. 2011) (quoting Menominee Indian Tribe v. United 4 States, 614 F.3d 519, 521 (D.C. Cir. 2010)). It is “intended to keep government contract 5 disputes out of district courts,” and “limits review of the merits of government contract 6 disputes to certain forums” with specialized knowledge and experience in the complex 7 legal area that is government contracting. Id. at 240. Under the CDA, breach-of-contract 8 claims against the federal government must first be decided by a contracting officer, and 9 then may be appealed either to a board of contract appeals or to the Court of Federal Claims. 10 See 41 U.S.C. §§ 7103–7104. 11 When the CDA applies, it provides the exclusive mechanism for contract dispute 12 resolution. Tex. Health Choice, L.C. v. OPM, 400 F.3d 895, 898 (Fed. Cir. 2005). The Act 13 only applies, however, “to claims sounding in contract.” Anselma Crossing, 637 F.3d at 14 240; see also 28 U.S.C. § 1346(a)(2) (“[T]he district courts shall not have jurisdiction of 15 any civil action or claim against the United States founded upon any express or implied 16 contract with the United States.” (emphasis added)). Here, the State’s claims do not sound 17 in contract, but in the Constitution and laws of the United States. Such claims fall squarely 18 within the wheelhouse of the Article III courts, and do not require the expertise of the Court 19 of Federal Claims. Thus, this case does not come within that court’s exclusive jurisdiction. 20 The Tucker Act likewise does not prevent the Court from exercising jurisdiction in 21 this case. Under that Act, the Court of Federal Claims has exclusive “jurisdiction to render 22 judgment on an action by an interested party objecting to a solicitation by a Federal agency 23 for bids or proposals for a proposed contract or to a proposed award or the award of a 24 contract or any alleged violation of statute or regulation in connection with a procurement 25 or a proposed procurement.”11 28 U.S.C. § 1491(b)(1). Given this language, Defendants 26 11 While the text of § 1491(b) provides that the district courts and Court of Federal Claims 27 have concurrent jurisdiction over these matters, the Alternative Dispute Resolution Act of 1996 included a “sunset provision, which terminated federal district court jurisdiction over 28 bid protests on January 1, 2001.” Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1079 (Fed. Cir. 2001).

- 25 - 1 contend that any contractor challenging the solicitation requirements for new federal 2 contracts that include a vaccination clause would have to proceed in the Court of Federal 3 Claims, since “[a]ny claim Arizona might be able to bring on behalf of a State 4 agency . . . would not be cognizable in District Court.” (Doc. 52 at 35.) But Defendants are 5 mistaken. As the Ninth Circuit has held: “The Tucker Act, by its terms, applies only to 6 claims for money damages. Therefore, it does not preclude review of agency action when 7 the relief sought is other than money damages.” South Delta Water Agency v. U.S. Dep’t 8 of Interior, 767 F.2d 531, 540 (9th Cir. 1985) (quoting Rowe v. United States, 633 F.2d 9 799, 802 (9th Cir. 1980)). Thus, because Plaintiffs seek only injunctive relief, the Tucker 10 Act does not bar their claims from proceeding in district court. 11 Moreover, jurisdiction under the Tucker Act depends on the “source of the rights 12 upon which the plaintiff bases its claim.” North Star Alaska v. United States, 14 F.3d 36, 13 37 (9th Cir. 1994) (quoting Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982)). 14 As mentioned above, Plaintiffs do not object to “a solicitation by a Federal agency for bids 15 or proposals for a proposed contract,” see 28 U.S.C. § 1491(b)(1), and do not ask the Court 16 to interpret contractual language or to decide contractual rights. Instead, Plaintiffs ask the 17 Court to resolve claims based on the Constitution and federal law. Thus, Plaintiffs’ claim 18 is “that the government is violating the law,” not that “the government is following a 19 different law from the one stated in the contract.” North Star Alaska, 14 F.3d at 36, 37 n.2. 20 Accordingly, the Tucker Act does not divest the Court of jurisdiction. 21 3. Causes of Action 22 Finally, Defendants argue that the Court lacks authority to review the Contractor 23 Mandate because Plaintiffs lack the necessary cause of action to pursue their claims under 24 the Procurement Act, the Procurement Policy Act, and the APA. (Doc. 108 at 15–17.) 25 The APA’s judicial review provision provides that “[a] person suffering legal wrong 26 because of agency action, or adversely affected or aggrieved by agency action” is entitled 27 to judicial review. 5 U.S.C. § 702. Courts have subject-matter jurisdiction to review only 28 final agency action under the APA. See id. § 704. Courts will deem agency action final if

- 26 - 1 “the action . . . mark[s] the ‘consummation’ of the agency’s decisionmaking process,” and 2 “the action [is] one by which rights or obligations have been determined, or from which 3 legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations 4 omitted). 5 As a general matter, presidential action falls outside the scope of direct review under 6 the APA, because the “President is not an agency within the meaning of the [APA],” see 7 Franklin v. Massachusetts, 505 U.S. 788, 796 (1992), and presidential action is therefore 8 not “agency action” reviewable under § 702. But cf. Elena Kagan, Presidential 9 Administration, 114 Harv. L. Rev. 2245, 2350–51 (2001) (“It is true that the Supreme Court 10 held in Franklin v. Massachusetts that the President is not an ‘agency’ as defined in the 11 APA and his actions therefore are not subject to the judicial review provisions of that 12 statute. . . . [But w]hen the challenge is to an action delegated to an agency head but 13 directed by the President, a different situation obtains: then, the President effectively has 14 stepped into the shoes of an agency head, and the review provisions usually applicable to 15 that agency’s action should govern.”). 16 Defendants argue that because the Acting OMB Director’s determination “was an 17 exercise of presidential authority delegated under 3 U.S.C. § 301,” 12 the determination 18 “cannot be subject to judicial review under the APA.” 13 (Doc. 108 at 15.) Further, 19 12 3 U.S.C. § 301 provides, in pertinent part: “The President of the United States is authorized to designate and empower the head of any department or agency in the executive 20 branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the 21 President (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the 22 approval, ratification, or other action of the President: Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head 23 or other official designated by him to perform such functions.” 13 There is rather little case law (and none binding on this Court) addressing whether agency 24 action undertaken pursuant to a presidential delegation under § 301 is insulated from judicial review under the APA. Compare Detroit Int’l Bridge Co. v. Canada, 189 F. Supp. 25 3d 85, 100 (D.D.C. 2016) (“Several cases have concluded that an agency’s action on behalf of the President, involving discretionary authority committed to the President, is 26 ‘presidential’ and unreviewable under the APA.”), and Nat. Res. Def. Council, Inc. v. U.S. Dep’t of State, 658 F. Supp. 2d 105, 111 (D.D.C. 2009) (finding no judicial review under 27 the APA where the President delegated his authority), and Tulare Cnty. v. Bush, 185 F. Supp. 2d 18, 28 (D.D.C. 2001) (same), with Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 28 1156–57 (D. Minn. 2010) (reaching the opposite conclusion), and Indigenous Envt’l Network v. U.S. Dep’t of State, No. cv-17-29, 2017 WL 5632435, at *6 (D. Mont. Nov. 22,

- 27 - 1 Defendants argue that the SFWTF contractor guidance and the FAR Memorandum are 2 unreviewable under the APA because they have no standalone force and are therefore not 3 final agency action.14 (Id. at 15–16.) 4 While the Court doubts the validity of Defendants’ interpretation of the APA and 5 § 301,15 the Court need not consider whether Plaintiffs claims are reviewable under the 6 APA, because even if this case presents no “final agency action” reviewable under that 7 statute, “courts have also permitted judicial review of presidential orders implemented 8 through the actions of other federal officials. This cause of action, which exists outside of 9 the APA, allows courts to review ultra vires actions by the President that go beyond the 10 scope of the President’s statutory authority.” Hawaii v. Trump, 878 F.3d 662, 682 (9th Cir. 11 2017), reversed and remanded on other grounds, 585 U.S. —, 138 S. Ct. 2392 (2018); see 12 also Reich, 74 F.3d at 1327–28 (collecting cases and holding that plaintiff’s challenge to 13 an EO promulgated under the Procurement Act was permissible as a non-statutory review 14 action); United States v. Bozarov, 974 F.2d 1037, 1045 (9th Cir. 1992) (similar); see 15 generally Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 16 Colum. L. Rev. 1612, 1614 (1997). As in the cases cited, non-statutory review of 17 Plaintiffs’ claims is appropriate here because Plaintiffs allege that the President, in 18 promulgating EO 14042 and 14043, acted beyond his statutory authority. 19 Moreover, judicial review of Plaintiffs’ claims obtains because “review of the 20 legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the 21 officers who attempt to enforce the President’s directive.” Franklin, 505 U.S. at 828 22 2017) (same), and Protect Our Cmtys. Found. v. Chu, No. 12-cv-3062, 2014 WL 1289444, at *6 (S.D. Cal. Mar. 27, 2014) (same). 23 14 Defendants are likely right on this point. See infra Section III.B.2.ii; see also Kentucky, 2021 WL 5587446, at *11 (“FAR Council Guidance is not subject to judicial review 24 pursuant to the APA because the Guidance does not constitute final agency action.”). 15 While the APA is not available to review actions involving the exercise of discretionary 25 authority vested in the President for abuse of discretion, see Detroit Int’l Bridge Co., 189 F. Supp. 3d at 99, courts may review a President’s assertion of statutory power to determine 26 whether it is authorized by statute, see Corus Grp. PLC v. Int’l Trade Comm’n, 352 F.3d 1351, 1359 (Fed. Cir. 2003); see also Reich, 74 F.3d at 1331–32 & n.5 (“[The Court’s] 27 holding [in Dalton v. Specter, 511 U.S. 462 (1994)] merely stands for the proposition that when a statute entrusts a discrete specific decision to the President and contains no 28 limitations on the President’s exercise of that authority, judicial review of an abuse of discretion claim is not available.”).

- 28 - 1 (Scalia, J., concurring in part and concurring in the judgment). Here, Plaintiffs seek to 2 enjoin not only the President, but also the officers and entities charged with carrying out 3 his instructions. See Hawaii, 878 F.3d at 680–81. The Contractor Mandate is not self- 4 executing; it involves a substantial number of officials and entities within the executive 5 apparatus that are unquestionably subject to this Court’s equitable jurisdiction. Thus, that 6 Plaintiffs’ claims implicate presidential action and raise questions regarding presidential 7 authority does not preclude judicial review.16 See Reich, 74 F.3d at 1326 (“That the 8 ‘executive’s’ action here is essentially that of the President does not insulate the entire 9 executive branch from judicial review.”); see also Kevin M. Stack, The Statutory 10 President, 90 Iowa L. Rev. 539, 555–56 (2005) (“In almost all cases of presidential orders, 11 it will be possible to identify a defendant other than the president himself that acts upon 12 the order. Indeed, this mode of review has a long history: it was the basis for review of the 13 validity of executive action in Marbury v. Madison, Youngstown Sheet & Tube Co. v. 14 Sawyer, and Dames & Moore v. Regan.”). 15 Accordingly, the Court has jurisdiction to resolve Plaintiffs’ claims challenging the 16 Contractor Mandate. The Court will now turn to the merits of those claims. 17 B. Actual Success on the Merits 18 1. Procurement Act 19 The Procurement Act, 40 U.S.C. § 101 et seq., was enacted in 1949 to “provide the 20 Federal Government with an economical and efficient system” for the procurement and 21 management of federal property. Id. § 101. The Act was passed in response to the Hoover 22 Commission’s recommendation that the federal government streamline and modernize its 23 procurement and property management processes. See AFL-CIO v. Kahn, 618 F.2d 784, 24 787–88 (D.C. Cir. 1979). Among other things, the Hoover Commission recommended that 25 an agency be created to oversee government acquisitions and that it be placed within the 26 Executive Office of the President. Id. at 788. “Congress, however, was reluctant to saddle 27 16 Nor does sovereign immunity bar Plaintiffs’ claims. The APA, 5 U.S.C. § 702, waives sovereign immunity with respect to suits against federal actors for injunctive relief, even 28 where the suit does not proceed under the APA. See Reich, 74 F.3d at 1328 (“The APA’s waiver of sovereign immunity applies to any suit whether under the APA or not.”).

- 29 - 1 the relatively small Executive Office with such a vast administrative burden, so it set up 2 the General Services Administration as an independent agency. But in response to the 3 Hoover Commission’s concern that the strength of the presidency support the new agency, 4 Congress added Section [121(a)] . . . .” Id. 5 Section 121(a) grants the President authority to “prescribe such policies and 6 directives that the President considers necessary to carry out [the Act].” 40 U.S.C. § 121(a). 7 This statutory grant of authority, while broad, is not unqualified. Rather, the President’s 8 policies “must be consistent with [the Act].” Id. This means that there must be a nexus 9 between policies enacted pursuant to § 121(a) and the Procurement Act’s purpose to 10 promote economy and efficiency in federal procurement and property management. See 11 Chrysler Corp. v. Brown, 441 U.S. 281, 304 (1979) (“[I]t is necessary to establish a nexus 12 between the regulations and some delegation of the requisite legislative authority by 13 Congress.”); see also Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164, 170 (4th Cir. 1981) 14 (finding that executive branch policies “must be reasonably related to the Procurement 15 Act’s purpose of ensuring efficiency and economy in government procurement . . . in order 16 to lie within the statutory grant”).17 17 In conducting this “nexus” inquiry, courts have defined “economy” and “efficiency” 18 broadly. See, e.g., Kahn, 618 F.2d at 789 (“‘Economy’ and ‘efficiency’ are not narrow 19 terms; they encompass those factors like price, quality, suitability, and availability of goods 20 or services that are involved in all acquisition decisions.”); Reich, 74 F.3d at 1333 (“The 21 President’s authority to pursue ‘efficient and economic’ procurement . . . has been 22 interpreted to permit such broad-ranging Executive Orders as [those] guaranteeing equal 23 employment opportunities, and restricting wage increases on the part of government 24 contractors—measures which certainly reach beyond any narrow concept of efficiency and 25 economy in procurement.”). As a result, a broad range of executive branch policies issued 26 under § 121(a) have been upheld as valid. See, e.g., Kahn, 618 F.2d at 790–91 & n.32 27 (collecting cases regarding use of the Procurement Act to impose “a series of 28 17 The Ninth Circuit has not yet addressed the scope of the President’s authority under the Procurement Act.

- 30 - 1 antidiscrimination requirements for Government contractors”); City of Albuquerque v. U.S. 2 Dep’t of Interior, 379 F.3d 901 (10th Cir. 2004) (urban renewal); UAW-Labor Emp. & 3 Training Corp. v. Chao, 325 F.3d 360 (D.C. Cir. 2003) (promoting rights of union 4 members); AFGE v. Carmen, 669 F.2d 815 (D.C. Cir. 1981) (conservation of gasoline 5 during oil crisis). Other executive branch policies, however, have been invalidated as 6 exceeding the President’s authority under the Act. See, e.g., Reich, 74 F.3d 1322 (order 7 disqualifying employers who hire replacement workers during lawful strike from certain 8 federal contracts); Liberty Mut., 639 F.2d 164 (order requiring federal contractors and 9 subcontractors to comply with certain anti-discrimination and affirmative action 10 measures). 11 In an attempt to establish the requisite nexus, EO 14042 instructed the OMB 12 Director, “as an exercise of the delegation of my authority under the Federal Property and 13 Administrative Services Act,” to “determine whether [the SFWTF contractor guidance] 14 will promote economy and efficiency in Federal contracting if adhered to by Government 15 contractors and subcontractors.” 86 Fed. Reg. at 50,985–86. Acting Director Young issued 16 a responsive determination on September 28, 2021. 86 Fed. Reg. 53,691. The initial 17 determination made only the conclusory statement that Young had “determined that 18 compliance by Federal contractors and subcontractors with COVID-19 workplace safety 19 protocols detailed in [the SFWTF contractor guidance] will improve economy and 20 efficiency by reducing absenteeism and decreasing labor costs for contractors and 21 subcontractors working on or in connection with a Federal Government contract.” Id. at 22 53,692. The determination included neither findings nor evidence to support Young’s 23 conclusion. 24 Perhaps realizing the determination’s deficiencies, Acting Director Young 25 published a revised determination to the Federal Register on November 16, 2021. 86 Fed. 26 Reg. 63,418. The revised determination again attempts to establish the requisite nexus 27 between the Contractor Mandate and the purposes of the Procurement Act. The revised 28 determination states, inter alia, that “the overall effect of enacting these protocols for

- 31 - 1 Federal contractors and subcontractors will be to decrease the spread of COVID-19, which 2 will in turn decrease worker absence, save labor costs on net, and thereby improve 3 efficiency in Federal contracting.” Id. at 63,421. 4 Defendants argue that the revised determination “easily satisfies [the] ‘lenient’ 5 [nexus] standard” and in fact provides “far more detail than the Procurement Act requires.” 6 (Docs. 52 at 40; 108 at 17.) Plaintiffs disagree. In their view, the revised determination 7 “makes only a pretextual attempt to establish a nexus with economy and efficiency. Indeed, 8 before it makes any mention of economy and efficiency, or even of procurement at all, it 9 explicitly states that its actual main objective is to achieve public health goals, specifically, 10 ‘to get more people vaccinated.’” (Doc. 72 at 17 (quoting 86 Fed. Reg. at 63,418).) 11 The Contractor Mandate exceeds the President’s authority under the Procurement 12 Act, for several reasons. First, the sheer scope of the President’s claimed authority counsels 13 against Defendants’ interpretation of § 121(a). See Ala. Ass’n of Realtors v. HHS, 594 U.S. 14 —, 141 S. Ct. 2485, 2489 (2021). Defendants’ reading of § 121(a) would grant the 15 President “a breathtaking amount of authority.” Id. Indeed, “[i]t is hard to see what 16 measures [Defendants’] interpretation would place outside” the President’s reach. Id. As 17 long as the federal government could articulate some connection—no matter how 18 tenuous—between the enacted policy and the broad goals of achieving economy and 19 efficiency in federal procurement, the policy would be consistent with the statute. If, for 20 example, the President determined that obesity, diabetes, and other health issues were 21 linked to the consumption of sugary drinks and fast food, and that such health issues led to 22 absenteeism and a lack of productivity in the workplace, he could, on Defendants’ reading, 23 issue an executive order requiring all federal contractor employees to refrain from 24 consuming soda or eating fast food. But in reality, the President’s authority under the Act 25 is not so broad. See Kahn, 618 F.2d at 793 (“[O]ur decision today does not write a blank 26 check for the President to fill in at his will. The procurement power must be exercised 27 consistently with the structure and purposes of the statute that delegates that power.”). 28 Rather, policies promulgated under the Procurement Act must relate—more than

- 32 - 1 incidentally—to procurement. See Liberty Mut., 639 F.2d at 171 (“[A]n ‘exercise of quasi- 2 legislative authority by [the executive branch] must be rooted in a grant of (legislative) 3 power by the Congress,’ and lie ‘reasonably within the contemplation of that grant of 4 authority.’” (quoting Chrysler, 441 U.S. at 302, 306)). 5 “We expect Congress to speak clearly when authorizing [the executive branch] to 6 exercise powers of ‘vast economic and political significance.’” Ala. Ass’n of Realtors, 141 7 S. Ct. at 2489 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). There is 8 little doubt that the Contractor Mandate qualifies as an exercise of such power. See NFIB 9 v. OSHA, 595 U.S. —, 142 S. Ct. 661, 665 (2022). As mentioned previously, federal 10 contractor employees comprise nearly a fifth of the entire U.S. labor force. The mandate 11 covers virtually all such employees, including employees who are not themselves working 12 on federal contracts, have previously been infected with COVID-19, work entirely 13 outdoors, and work remotely full time. Clearly the mandate “is no ‘everyday exercise of 14 federal power.’” Id. (quoting In re MCP No. 165, 20 F.4th 264, 272 (6th Cir. 2021) (Sutton, 15 C.J., dissenting). “The question, then, is whether the Act plainly authorizes” the mandate. 16 Id. (emphasis added). It does not. 17 The Act authorizes the President to prescribe policies and directives related to 18 procurement, not public health. See 40 U.S.C. §§ 101, 121(a) (“The President may 19 prescribe policies and directives” that are “consistent with” the Act’s purpose to “provide 20 the Federal Government with an economical and efficient system” for the procurement and 21 management of federal property). Indeed, no provision of the Act so much as mentions 22 either public health or vaccination.18 See NFIB, 142 S. Ct. at 665; see also Chrysler, 441 23 U.S. at 304 n.34. Such matters fall clearly outside the expertise of the FAR Council and 24 OMB. See NFIB, 142 S. Ct. at 665. Nor does the legislative history indicate that Congress 25 intended the President to possess such broad authority under the Act. See Kahn, 618 F.2d 26 at 799 (MacKinnon, J., dissenting) (“It is no accident that the majority opinion cannot point 27 to any legislative history . . . for there is not a single passage in that history . . . remotely 28 18 For this reason, the Contractor Mandate is even more clearly unlawful than the OSHA mandate that was recently stayed by the Supreme Court. See NFIB, 142 S. Ct. 661.

- 33 - 1 supporting the use of the procurement power to achieve nonprocurement objectives.”); see 2 also Kimberly Egerton, Note, Presidential Power over Federal Contracts under the 3 Federal Property and Administrative Services Act: The Close Nexus Test of AFL-CIO v. 4 Kahn, 1980 Duke L.J. 205, 206–08. Nor has the President, in the seventy years since the 5 Procurement Act was enacted, ever used his authority under the Act to effectuate sweeping 6 public health policy. See NFIB, 142 S. Ct. at 666. “This ‘lack of historical precedent,’ 7 coupled with the breadth of authority that the [President] now claims, is a ‘telling 8 indication’ that the mandate extends beyond the [President’s] legitimate reach.” Id. 9 (quoting Free Enter. Fund, 561 U.S. at 505). 10 While it is of course true that the pandemic will have some impact on federal 11 procurement, that alone does not render the Contractor Mandate a procurement policy or 12 directive. As the Supreme Court recently explained: 13 Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and 14 does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk 15 is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. 16 Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks 17 while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization. 18 19 Id. at 665. The same is true here. That contractor employees, like private sector employees,

20 face ‘the hazards of daily life’ while on the clock does not grant the President carte blanche

21 to regulate with respect to those hazards. To hold otherwise “would significantly expand

22 [the President’s procurement] authority without clear congressional authorization.” Id.

23 It is telling that, since the pandemic began, Congress has passed no legislation

24 mandating vaccination despite enacting several other significant pandemic-related

25 measures. See id. at 662–63. Indeed, “the most noteworthy action concerning . . . vaccine

26 mandate[s] by either House of Congress has been a majority vote of the Senate

27 disapproving [OSHA regulations requiring vaccine-or-test for certain private employers]

28 on December 8, 2021.” Id. at 666. This congressional silence, while not dispositive,

- 34 - 1 counsels against reading § 121(a) as impliedly conferring on the President broad 2 authority to mandate compulsory vaccination. 3 Contrary to Defendants’ assertions, this case is clearly distinct from Biden v. 4 Missouri, 595 U.S. —, 142 S. Ct. 647 (2022). In that case, the Supreme Court upheld a 5 regulation promulgated by the Secretary of Health and Human Services (“HHS”) that 6 mandates vaccination for certain healthcare workers employed in facilities accepting 7 Medicare and Medicaid funding. Id. at 650. As authority for the regulation, the HHS 8 Secretary cited 42 U.S.C. § 1302, which authorizes the Secretary to promulgate regulations 9 “as may be necessary to the efficient administration of the functions with which [he] is 10 charged.” As Defendants note, this statutory grant of authority bears some resemblance to 11 the authority granted the President under the Procurement Act. (See Doc. 152 at 5.) But 12 these statutory grants also bear a significant, and dispositive, distinction. As the Supreme 13 Court noted, it is “perhaps the most basic” function of the HHS Secretary, “given the 14 Department’s core mission,” to “ensure that the healthcare providers who care for Medicare 15 and Medicaid patients protect their patients’ health and safety.” Missouri, 142 S. Ct. at 650. 16 Consequently, authority to issue regulations respecting patients’ health and safety is 17 inherent in the Secretary’s authority to regulate “as may be necessary to 18 the . . . administration of his functions.” 42 U.S.C. § 1302. It was for this reason that the 19 Supreme Court determined the vaccination mandate fell “within the authorities that 20 Congress has conferred upon [the HHS Secretary].” Missouri, 142 S. Ct. at 652. 21 After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent 22 with the fundamental principle of the medical profession: first, do no harm. It would be the “very opposite of efficient and 23 effective administration for a facility that is supposed to make people well to make them sick with COVID-19.” 24 25 Id. at 652 (quoting Florida v. HHS, 19 F.4th 1271, 1288 (11th Cir. 2021)).

26 In the instant case, on the other hand, Defendants argue that the Contractor

27 Mandate is authorized by a statute granting the President authority to issue regulations

28 respecting procurement. Unlike the authority granted the HHS Secretary under 42 U.S.C.

- 35 - 1 § 1302, however, the authority granted the President under the Procurement Act includes 2 no inherent authority to regulate with respect to health and safety. Rather, the statute’s 3 “most basic” function, see Missouri, 142 S. Ct. at 650, is to manage the government’s 4 business affairs. See 40 U.S.C. § 101. Thus, this case involves a separate, wholly distinct 5 grant of authority that was promulgated for reasons unrelated to the grant of authority at 6 issue in Missouri. 7 Second, the Court agrees with Plaintiffs that Defendants’ broad view of the 8 President’s authority under § 121(a) raises serious constitutional questions. The 9 Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a 10 Congress of the United States.” U.S. Const. art. I § 1. “Accompanying that assignment 11 of power to Congress is a bar on its further delegation.” Gundy v. United States, 588 U.S. 12 —, 139 S. Ct. 2116, 2123 (2019). Nevertheless, because “Congress simply cannot do its 13 job absent an ability to delegate power under broad general directives,” Mistretta v. United 14 States, 488 U.S. 361, 372 (1989), statutory delegation is generally permissible, “as long as 15 Congress ‘lay[s] down by legislative act an intelligible principle to which the person or 16 body authorized to [exercise the delegated authority] is directed to conform.’” Gundy, 139 17 S. Ct. at 2123 (quoting Mistretta, 488 U.S. at 372). Although this intelligible-principle 18 standard has historically been undemanding, see, e.g., Nat’l Broad. Co. v. United States, 19 319 U.S. 190, 216 (1943) (upholding delegation to agency to regulate in the “public 20 interest”); Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 472 (2001) (upholding 21 delegation to agency to issue air quality standards “requisite to protect the public health”), 22 and the Supreme Court has on only two occasions found a delegation excessive, see A.L.A. 23 Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refin. Co. v. Ryan, 24 293 U.S. 388 (1935), several members of the Court have recently indicated a willingness 25 to revisit the contours nondelegation doctrine and inject substance into the intelligible- 26 principle standard. In a recent dissent, for example, Justice Gorsuch, joined by Justice 27 Thomas and Chief Justice Roberts, described the proper intelligible-principle inquiry as 28 follows:

- 36 - 1 To determine whether a statute provides an intelligible principle, we must ask: Does the statute assign to the executive 2 only the responsibility to make factual findings? Does it set forth the facts that the executive must consider and the criteria 3 against which to measure them? And most importantly, did Congress, and not the Executive Branch, make the policy 4 judgments? Only then can we fairly say that a statute contains the kind of intelligible principle the Constitution demands. 5 Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting); see also id. at 2131 (Alito, J., 6 concurring in the judgment) (“If a majority of this Court were willing to reconsider the 7 approach we have taken for the past 84 years, I would support that effort.”). On this 8 formulation of the nondelegation doctrine, Defendants’ reading of the statutory delegation 9 in § 121(a)—the reading that would permit the executive to issue the Contractor 10 Mandate—is perhaps unconstitutional. See Kentucky, 2021 WL 5587446, at *9; see also 11 Kahn, 618 F.2d at 811 (MacKinnon, J., dissenting) (“[A]ssuming that Congress did indeed 12 intend to grant the President the power to impose mandatory wage and price standards on 13 government contractors, the terms it used to do so do not provide a constitutionally 14 sufficient standard for delegating legislative authority.”). The constitutional avoidance 15 doctrine therefore counsels in favor of construing § 121(a) to avoid the nondelegation 16 question. See Crowell v. Benson, 285 U.S. 22, 62 (1932) (“When the validity of an act of 17 the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, 18 it is a cardinal principle that this Court will first ascertain whether a construction of the 19 statute is fairly possible by which the question may be avoided.”). 20 Third, the Contractor Mandate intrudes into an area traditionally and principally 21 reserved to the states. See Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 22 719 (1985) (“[T]he regulation of health and safety matters is primarily, and historically, 23 a matter of local concern.”); see also S. Bay United Pentecostal Church v. Newsom, 590 24 U.S. —, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring in the denial of application 25 for injunctive relief) (“Our Constitution principally entrusts ‘[t]he safety and the health of 26 the people’ to the politically accountable officials of the States.” (quoting Jacobson v. 27 Massachusetts, 197 U.S. 11, 38 (1905))). 28 The federal government is one of limited, enumerated powers. See Gregory v.

- 37 - 1 Ashcroft, 501 U.S. 452, 457 (1991); see also Printz v. United States, 521 U.S. 898, 918–19 2 (1997) (“Although the States surrendered many of their powers to the new Federal 3 Government, they retained ‘a residuary and inviolable sovereignty.’” (quoting The 4 Federalist No. 39, at 245 (J. Madison))). This principle is implicit in both the structure and 5 text of the Constitution and was made express by the Tenth Amendment. See Printz, 521 6 U.S. at 919. That Amendment reads: “The powers not delegated to the United States by 7 the Constitution, nor prohibited by it to the States, are reserved to the States respectively, 8 or to the people.” U.S. Const. amend. X. The “police power” is therefore “inherent in the 9 states” and was “reserved from the grant of powers to the federal government by the 10 Constitution.” United States v. Constantine, 296 U.S. 287, 295–96 (1935); see also Barnes 11 v. Glen Theatre, Inc., 501 U.S. 560, 569 (“The traditional police power of the States is 12 defined as the authority to provide for the public health, safety, and morals.”). 13 This traditional “police power” includes authority over compulsory vaccination. 14 See Zucht v. King, 260 U.S. 174, 176 (1922) (“[I]t is within the police power of a state to 15 provide for compulsory vaccination.”); see also Jacobson, 197 U.S. at 25 (“[T]he police 16 power of a state must be held to embrace, at least, such reasonable regulations established 17 directly by legislative enactment as will protect the public health and the public safety.”); 18 NFIB, 142 S. Ct. at 667 (Gorsuch, J., concurring) (“There is no question that state and local 19 authorities possess considerable power to regulate public health.”). It also includes, as a 20 general matter, power to prohibit vaccination from being compelled. Consistent with that 21 authority, Arizona has enacted laws prohibiting State and local government entities from 22 imposing vaccine mandates. See Arizona Executive Order 2021-19; Arizona Executive 23 Order 2021-18; A.R.S. §§ 36-114, 36-184. 24 Of course, that the states possess authority over compulsory vaccination does not 25 compel the conclusion that the federal government does not. State and federal 26 governments regularly exercise concurrent regulatory authority. See Gregory, 501 U.S. at 27 457–61. Indeed, “[a]s long as it is acting within the powers granted it under the 28 Constitution, Congress may impose its will on the States.” Id. at 460. Nevertheless, where

- 38 - 1 the federal government seeks to preempt state law in an area that “the States have 2 traditionally occupied,” there is a strong presumption “that the historic police powers of 3 the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and 4 manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal 5 citations and quotation marks omitted). Thus, while it may be that Congress has authority 6 to compel vaccination, there is no indication that it intended to do so through the 7 Procurement Act. See Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 8 531 U.S. 159, 172 (2001) (“Where an [executive branch] interpretation of a statute invokes 9 the outer limits of Congress’ power, we expect a clear indication that Congress intended 10 that result.”). 11 The Contractor Mandate thus exceeds the President’s authority under the 12 Procurement Act. 13 2. Procurement Policy Act 14 The Procurement Policy Act, 41 U.S.C. §§ 1101–2313, establishes the Office of 15 Federal Procurement Policy (“OFPP”) within OMB to “provide overall direction of 16 Government-wide procurement policies, regulations, procedures, and forms for executive 17 agencies.” Id. § 1101(b)(1). OFPP’s Acting Administrator works with the GSA 18 Administrator, the Secretary of Defense, and the NASA Administrator (collectively, the 19 “FAR Council”) to “prescribe Government-wide procurement policies” and to issue 20 government-wide procurement regulations, procedures, and forms. Id. §§ 1102, 1121(b), 21 (c)(2) & (d); 1303(a)(1). Those government-wide directives are “implemented in a single 22 Government-wide procurement regulation called the Federal Acquisition Regulation.” Id. 23 §§ 1121(b); 1303(a)(1). Executive agencies must follow the FAR when procuring property 24 or services. Id. § 1121(c). 25 When the FAR Council or agencies prescribe procurement regulations, they must 26 comply with procedural requirements set forth in 41 U.S.C. § 1707. That section requires 27 that agency heads publish a proposed “procurement policy, regulation, procedure, or form” 28 in the Federal Register if the proposal “relates to the expenditure of appropriated funds”

- 39 - 1 and either “has a significant effect beyond the internal operating procedures of the agency 2 issuing the policy” or “has a significant cost or administrative impact on contractors.” Id. 3 § 1707(a)(1). Although ordinarily the proposal “may not take effect until 60 days after” its 4 publication, the proposal may take effect immediately on a temporary basis “if urgent and 5 compelling circumstances make compliance with the requirements impracticable.” Id. 6 § 1707(a), (d). Even then, however, the proposal must be subject to concurrent public 7 comment. Id. § 1707(e). 8 Plaintiffs assert that the SFWTF FAQs, FAR Memorandum, and revised OMB 9 determination are procurement “policies” and “procedures” that “relate to the expenditure 10 of appropriated funds; have a significant effect beyond internal operating procedures; and 11 impose a significant cost and administrative impact on contractors and offerors.” (Doc. 134 12 at 56–57 ¶¶ 162–63.) They are therefore subject, Plaintiffs contend, to the procedural 13 requirements of § 1707. And, because Defendants did not publish them in the Federal 14 Register or otherwise waive the requirements of § 1707, Defendants did not comply with 15 those requirements. 16 Defendants respond that the strictures of § 1707 do not apply either to exercises of 17 delegated presidential authority like the revised OMB determination or to nonbinding 18 guidance like the FAR Memorandum or SFWTF FAQs. (Doc. 108 at 23–26.) The Court 19 will consider each argument in turn. 20 i. Revised OMB Determination 21 Whether the revised OMB determination must adhere to the procedures set forth in 22 § 1707 is a novel question. On the one hand, the requirements of § 1707 apply only to 23 “executive agencies.” And the statutory definition of “executive agency” does not include 24 the President. See 41 U.S.C. § 133; see also Franklin, 505 U.S. at 796. Thus, because 25 Acting OMB Director Young issued her determination pursuant to a presidential 26 delegation, the requirements of § 1707 may be inapplicable. See supra Section III.A.3 27 (discussing this issue in the context of judicial review under the APA). The Court, however, 28 need not resolve the question whether § 1707 applies to the revised determination

- 40 - 1 because, even if it does, Acting Director Young properly invoked the § 1707(d) waiver 2 provision. See 86 Fed. Reg. at 63,423–85. 3 There is precious little case law interpreting § 1707(d). 19 What qualifies as “urgent 4 and compelling” in this context is not well established. Defendants argue that the Court 5 should adopt the standard applied to the good cause exception to the APA’s notice and 6 comment procedures. (Doc. 108 at 25.) Under that standard, notice and comment are 7 excused “in emergency situations, or where delay could result in serious harm.” Jifry v. 8 FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). While Plaintiffs do not suggest an alternative 9 standard, they insist that the circumstances presented here are not “urgent and compelling.” 10 (Doc. 72 at 21.) They give several reasons. First, Plaintiffs contend that no urgent and 11 compelling circumstances exist here because “society’s interest in slowing the spread of 12 COVID-19 cannot qualify as compelling forever.” (Id. at 21 (quoting BST Holdings LLC 13 v. OSHA, 17 F.4th 604, 611 n.10 (5th Cir. 2021)).) Second, they argue that the revised 14 determination’s “assertion that a waiver is now urgent and compelling is facially senseless 15 when the OMB, through the same document, delayed the mandate compliance date from 16 December 8, 2021, to January 14, 2022.” (Doc. 72 at 21.) In their view, “a purported 17 ‘emergency’ that the entire globe has now endured for nearly two years, and which [the 18 government] itself spent . . . months responding to” does not justify invocation of the 19 urgent-and-compelling-circumstances exception. (Id. at 21–22.) And finally, Plaintiffs 20 contend that because the revised determination was issued in bad faith, its explanation 21 justifying invocation of § 1707(d) should therefore be disregarded. (Id. at 22.) 22 Plaintiffs’ arguments are unavailing. First, though it is undoubtedly true that 23 “society’s interest in slowing the spread of COVID-19 cannot qualify as compelling 24 forever,” it remains compelling today. See Roman Cath. Diocese of Brooklyn v. Cuomo, 25 592 U.S. —, 141 S. Ct. 63, 67 (2020) (“Stemming the spread of COVID-19 is 26 unquestionably a compelling interest.”); Doe v. San Diego Unified Sch. Dist., 19 F.4th 27 19 Westlaw, for instance, identifies only seventeen cases that cite § 1707. Of those, only 28 five mention “urgent and compelling,” three of which involve challenges to the Contractor Mandate.

- 41 - 1 1173, 1187 (9th Cir. 2021) (Ikuta, J., dissenting) (same); see also Does 1–3 v. Mills, 595 2 U.S. —, 142 S. Ct. 17, 20–21 (2021) (Gorsuch, J., dissenting) (“I accept that what we said 3 11 months ago remains true today—that stemming the spread of COVID–19 qualifies as a 4 compelling interest.”); Kentucky, 2021 WL 5587446, at *12 (“[T]he Court finds that the 5 FAR Council Guidance and subsequent OMB Determination in this matter did not run 6 afoul of the proper administrative procedures.”). As the revised OMB determination states, 7 “[t]his is a once in a generation pandemic, which has already resulted in more than 8 46,405,253 cases of COVID-19, hospitalized more than 3,283,045 Americans, and taken 9 more than 752,196 American lives. The pandemic continues to present an imminent threat 10 to the health and safety of the American people . . . .” 20 86 Fed. Reg. at 63,423. 11 Second, the mere fact of the pandemic’s duration does not render its resolution any 12 less urgent or compelling. While it is true that “the entire globe has now endured [COVID- 13 19] for nearly two years,” the virus continues to claim American lives, and inhibiting its 14 progress remains vitally important. 15 Finally, there is no merit to Plaintiffs’ contention that the revised OMB 16 determination was issued in bad faith. “[I]n reviewing agency action, a court is ordinarily 17 limited to evaluating the agency’s contemporaneous explanation in light of the existing 18 administrative record.” See Dep’t of Comm. v. New York, 588 U.S. —, 139 S. Ct. 2551, 19 2573 (2019). A court may inquire into “the mental processes of administrative 20 decisionmakers” only on a “strong showing of bad faith or improper behavior.” Id. at 2573– 21 74. No such showing has been made here. As evidence of bad faith, Plaintiffs state only 22 that “OMB waited to submit the Second OMB Notice until just minutes before the start of 23 this Court’s hearing on Plaintiffs’ previous TRO/PI motion.” (Doc. 72 at 22.) This 24 observation, without more, comes far short of the “strong showing” necessary to permit 25 the Court to inquire into Defendants’ subjective motivations (much less invalidate the 26 revised determination on that basis). See Missouri, 142 S. Ct. at 654 (“[W]e cannot say that 27 20 As of January 25, 2022, the virus had resulted in more than 70,641,725 reported cases 28 and 864,203 deaths. See COVID Data Tracker, CDC, https://covid.cdc.gov/covid-data- tracker/#datatracker-home (last visited Jan. 25, 2022).

- 42 - 1 in this instance the two months the agency took to prepare a 73-page rule constitutes ‘delay’ 2 inconsistent with the Secretary’s finding of good cause.”). 3 The Court is persuaded that “urgent and compelling circumstances” made 4 compliance with ordinary § 1707 procedures impracticable with respect to the revised 5 OMB determination.21 Therefore, because the revised determination was published in the 6 Federal Register and “solicit[s] comment on all subjects of this determination,” 86 Fed. 7 Reg. at 63,424, it complies with § 1707(e) and does not violate the Procurement Policy 8 Act. 9 ii. FAR Memorandum 10 Plaintiffs contend that the FAR Memorandum is subject to § 1707 and therefore 11 should have been published in the Federal Register and made available for public comment. 12 (Doc. 72 at 23–24.) Defendants respond that the FAR Memorandum is merely nonbinding 13 guidance and is therefore not a “procurement policy, regulation, procedure, or form” 14 subject to § 1707. (Doc. 108 at 26.) See 41 U.S.C. § 1707(a)(1). 15 The FAR Memorandum “provide[s] agencies that award contracts under the [FAR] 16 with initial direction for the incorporation of a clause into their solicitations and contracts 17 to implement guidance issued by the [SFWTF] pursuant to [EO 14042].” FAR 18 Memorandum at 1. The memorandum is not binding of its own force. Instead, it 19 “encourage[s]” agencies to use their independent authority to temporarily deviate from the 20 FAR and includes a sample vaccination clause that agencies may use in doing so. Id. at 3– 21 5. The memorandum does not compel agencies to take any specific action but rather 22 instructs contracting officers to adhere to “the direction[s] . . . issued by their respective 23 agencies” for implementing the memorandum’s guidance. Id. at 2. Nor does the 24 memorandum provide the FAR Council’s final guidance regarding COVID-19 safety 25 clauses. See id. at 3 (“The FAR Council has opened a case . . . to make appropriate 26 amendments in the FAR to reflect the requirements of [EO 14042]. Agencies are 27 21 Generally, courts are more willing to permit procedural exceptions where, as here, the 28 challenged measure is temporary and subject to concurrent public comment. See Am. Fed’n of Gov’t Emps. v. Block, 655 F.2d 1153, 1157–58 (D.C. Cir. 1981).

- 43 - 1 encouraged to make their deviations effective until the FAR is amended or the deviation is 2 otherwise rescinded by the agency.”). The memorandum does not appear in the Code of 3 Federal Regulations or the FAR. 4 Thus, as Defendants note, “the [FAR Memorandum] binds no one unless and until 5 an agency exercises its own discretion to either revise the suggested clause or incorporate 6 the suggested clause into a procurement contract.” (Doc. 108 at 26.) The memorandum is 7 therefore not a “procurement policy, regulation, procedure, or form” subject to § 1707. 8 iii. Contractor FAQs 9 Plaintiffs also contend that the Contractor FAQs are subject to § 1707. (Doc. 134 at 10 57 ¶¶ 164–66.) Plaintiffs are again mistaken. The Contractor FAQs, like the FAR 11 Memorandum, do not independently constitute a binding “policy, regulation, procedure, or 12 form.” Rather, the FAQs take on legal force only upon the approval of the Acting OMB 13 Director. (Doc. 108 at 25 n.9.) Moreover, the Contractor FAQs, and the URL address at 14 which they may be found, are explicitly referenced in the revised OMB determination. 86 15 Fed. Reg. at 63,421. Thus, the determination also provides the public with notice of, and 16 the ability to comment on, the Contractor FAQs. 17 3. Emergency Use Authorization Statute 18 Vaccines—and other medical products—that have not yet been fully approved by 19 the FDA may be approved under an Emergency Use Authorization (“EUA”) that is less 20 rigorous than the full approval process. The EUA procedure is set forth in 21 U.S.C. 21 § 360bbb-3. Plaintiffs submit (and the Court assumes, for present purposes) that the 22 vaccines available to federal contractor and subcontractor employees to satisfy the 23 Contractor Mandate are available only under EUAs and are therefore subject to the 24 requirements of 21 U.S.C. § 360bbb-3. 22 That Section provides, in relevant part: 25 22 Only the Pfizer Comirnaty vaccine has been fully approved by the FDA. The other two 26 available COVID-19 vaccines—manufactured by Moderna and by Johnson & Johnson— are not fully approved and are only available under EUAs. The Court will assume, 27 arguendo, that Plaintiffs are correct that Pfizer’s EUA and fully approved vaccines are materially distinct, and that only Pfizer’s EUA vaccine is currently available in the United 28 States. (See Doc. 134 at 22 ¶¶ 67–68.) But see Vaccine Information Fact Sheet for Recipients and Caregivers About Comirnaty (Oct. 29, 2021),

- 44 - 1 The Secretary [of Health and Human Services] may authorize the introduction . . . of a drug, device, or biological product intended 2 for use in an actual or potential emergency . . . . 3 .... 4 With respect to the emergency use of an unapproved product, the Secretary, to the extent practicable given the applicable 5 circumstances described in subsection (b)(1), shall, for a person who carries out any activity for which the authorization is issued, 6 establish such conditions on an authorization under this section as the Secretary finds necessary or appropriate to protect the public 7 health, including the following: 8 .... 9 (ii) Appropriate conditions designed to ensure that individuals to whom the product is administered are informed-- 10 (I) that the Secretary has authorized the emergency use of the 11 product; 12 (II) of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are 13 unknown; and 14 (III) of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of 15 the product, and of the alternatives to the product that are available and of their benefits and risks. 16 21 U.S.C. § 360bbb-3. Plaintiffs contend that this provision confers on contractor and 17 subcontractor employees, as recipients of vaccines available under EUAs, “the right to 18 accept or refuse administration of the vaccines.” (Doc. 134 at 58 ¶ 169.) In Plaintiffs’ view, 19 then, because the Contractor Mandate deprives federal contractor and subcontractor 20 employees of the right to refuse to be vaccinated against COVID-19, the mandate is 21 unlawful. (Id. ¶¶ 170–71.) 22 The statute confers no substantive right to refuse a vaccine or other medical product 23 approved under an EUA. At most, it requires only that “individuals to whom the [vaccine] 24 is administered . . . are informed . . . of the option to accept or refuse administration of the 25 26 https://www.fda.gov/media/153716/download (stating that the EUA and fully approved vaccines “can be used interchangeably without presenting any safety or effectiveness 27 concerns”); Johnson v. Brown, No. 3:21-cv-01494, — F. Supp. 3d —, 2021 WL 4846060, at *18 (D. Or. Oct. 18, 2021) (“[T]he August FDA [a]pproval of Pfizer-BioNTech’s mRNA 28 vaccine was for the chemically and biologically identical vaccine that . . . was given EUA by the FDA in the United States.”).

- 45 - 1 product.” 21 U.S.C. § 360bbb-3(e)(1)(A)(ii) (emphasis added). The statute is about the 2 provision of information; as long as individuals receiving the vaccine are informed, the 3 statutory requirement is met. See Pelekai v. Hawaii, No. 21-cv-00343, 2021 WL 4944804, 4 at *6 n.9 (D. Haw. Oct. 22, 2021); see generally Department of Justice, Office of Legal 5 Counsel, Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from 6 Requiring the Use of a Vaccine Subject to an Emergency Use Authorization, 45 Op. O.L.C. 7 — (July 6, 2021), https://www.justice.gov/olc/file/1415446/download. Moreover, “as 8 other courts have held, [the] conditions [in § 360bbb-3(e)] only relate to those who ‘carr[y] 9 out any activity for which the authorization is issued,’ which are the medical providers who 10 administer the vaccine, not those who issue vaccine mandates.” Johnson, 2021 WL 11 4846060, at *18 (citing Valdez v. Grisham, No. 21-cv-783, — F. Supp. 3d —, 2021 WL 12 4145746, at *4 (D.N.M. Sept. 13, 2021)). 13 Finally, even if the statute could be read to confer an individual right to refuse 14 administration of an emergency use vaccine, the Contractor Mandate does not abridge that 15 right. A hard choice, for which there may be significant consequences, is still a choice. 16 Contractor and subcontractor employees may choose “either get the vaccine, apply for an 17 exception, or look for employment elsewhere.” Id. Therefore, the Contractor Mandate 18 does not violate § 360bbb-3. 19 4. Due Process Clause 20 Plaintiffs also bring a due process challenge to the Contractor Mandate. The Due 21 Process Clause of the Fifth Amendment to the Constitution provides that “[n]o person 22 shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. 23 amend. V. The Supreme Court has held that the Clause includes both a substantive and a 24 procedural component. See Washington v. Glucksberg, 521 U.S. 702, 719–20 (1997). 25 Plaintiffs invoke substantive due process, which “forbids the government from depriving 26 a person of life, liberty, or property in such a way that shocks the conscience or interferes 27 with the rights implicit in the concept of ordered liberty.” Corales v. Bennett, 567 F.3d 554, 28 568 (9th Cir. 2009) (internal citations and quotation marks omitted).

- 46 - 1 Substantive due process analysis “begin[s] with a careful description of the asserted 2 right.” Reno v. Flores, 507 U.S. 292, 302 (1993). In so describing the right, courts should 3 adopt a “narrow definition of the interest at stake,” Raich v. Gonzales, 500 F.3d 850, 863 4 (9th Cir. 2007), “because guideposts for responsible decisionmaking in this unchartered 5 area are scarce and open-ended.” Glucksberg, 521 U.S. at 720 (quoting Collins v. City of 6 Harker Heights, 503 U.S. 115, 125 (1992)). Glucksberg provides a useful illustration of 7 this principle. That case involved a substantive due process challenge to Washington’s ban 8 on assisted suicide. In defining the liberty interest at stake, the Supreme Court rejected the 9 plaintiffs’ suggestion that the interest was the “right to die,” the “right to control of one’s 10 final days,” or “the right to choose a humane, dignified death.” Id. at 722. Instead, the Court 11 held that the narrow question presented was whether “the Due Process Clause includes a 12 right to commit suicide which itself includes a right to assistance in doing so.” Id. at 723. 13 Once the claimed right has been carefully defined, the court conducting the 14 substantive due process analysis must then determine whether the right is “fundamental” 15 in the sense that it is “deeply rooted in this Nation’s history and tradition and implicit in 16 the concept of ordered liberty.” Id. at 720–21 (citations omitted). If the court determines 17 that the right is fundamental, “substantive due process forbids the infringement of that right 18 ‘at all, no matter what process is provided, unless the infringement is narrowly tailored to 19 serve a compelling state interest.’” Witt v. Dep’t of Air Force, 527 F.3d 806, 817 (9th Cir. 20 2008) (quoting Flores, 507 U.S. at 301–02). 21 In applying these principles to the instant case, the Court concludes that Plaintiffs’ 22 claim fails. Plaintiffs contend that the Contractor Mandate violates contractor employees’ 23 fundamental “rights to bodily integrity and to refuse medical treatment.” (Doc. 134 at 18 24 ¶¶ 57–58.) This definition of the alleged liberty interest at stake is far too broad. Properly 25 construed, this case raises only the much narrower question whether there is a substantive 26 due process right to refuse vaccination while an employee of a federal contractor. That 27 question is easily answered in the negative. There is no such right, at least under prevailing 28 Supreme Court precedent. See Jacobson, 197 U.S. 11 (holding that Massachusetts may

- 47 - 1 require all members of the public to be vaccinated against smallpox); see also, e.g., Prince 2 v. Massachusetts, 321 U.S. 158, 166–67 (1944) (citing Jacobson and holding that there is 3 no “freedom from compulsory vaccination”); Zucht, 260 U.S. at 176 (similar); Klaassen v. 4 Trs. of Ind. Univ., 7 F.4th 592, 593 (7th Cir. 2021) (Easterbrook, J.) (“Given Jacobson[,] 5 . . . there can’t be a constitutional problem with vaccination against [COVID-19].” 6 (citations omitted)); Valdez, 2021 WL 4145746, at *5 (“[F]ederal courts have consistently 7 held that vaccine mandates do not implicate a fundamental right and that rational basis 8 review therefore applies in determining the constitutionality of such mandates.”); Johnson, 9 2021 WL 4846060, at *13 (“[T]he right to refuse vaccination is not a fundamental right.” 10 (citation omitted)); Dixon v. De Blasio, No. 21-cv-05090, — F. Supp. 3d —, 2021 WL 11 4750187, at *8 (E.D.N.Y. Oct. 12, 2021) (same); Klaassen v. Trs. of Ind. Univ., No. 1:21- 12 cv-00238, — F. Supp. 3d. —, 2021 WL 3073926, at *24 (N.D. Ind. July 18, 2021) (similar); 13 Norris v. Stanley, No. 1:21-cv-00756, — F. Supp. 3d —, 2021 WL 4738827, at *2 (W.D. 14 Mich. Oct. 8, 2021) (similar). 15 Plaintiffs’ objections notwithstanding, Jacobson has never been overruled and 16 remains binding on this Court.23 See Klaassen, 7 F.4th at 593 (“Plaintiffs assert that the 17 rational-basis standard used in Jacobson does not offer enough protection for their 18 interests[,] . . . but a court of appeals must apply the law established by the Supreme 19 Court.”). The Contractor Mandate, then, must pass only rational basis review. Heller v. 20 Doe, 509 U.S. 312, 319–20 (1993). To do so, the mandate must merely be “rationally 21 related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 22 432, 440 (1985); see also Heller, 509 U.S. at 321 (under rational basis review, “a [measure] 23 is presumed constitutional, and the burden is on the one attacking the [measure] to negative 24 every conceivable basis which might support it.” (internal citations and quotation marks 25 23 Plaintiffs assert that Jacobson is inapposite because it only “address[ed] whether States 26 have the power to impose vaccine mandates” and did not “consider[] the constitutionality of the Federal government imposing such mandates . . . .” (Doc. 34 at 37.) Even if that were 27 true, it does not bear on Plaintiffs’ substantive due process claim, which involves the question whether individuals have a fundamental constitutional right to refuse compulsory 28 vaccination, irrespective of which unit of government (local, state, or federal) made the vaccination compulsory.

- 48 - 1 omitted)). It is. As has been mentioned, inhibiting the spread of COVID-19 is a legitimate 2 interest. See Roman Cath. Diocese, 141 S. Ct. at 67. And requiring individuals to be 3 vaccinated is rationally related to that interest. See, e.g., Williams v. Brown, No. 6:21-cv- 4 01332, — F. Supp. 3d —, 2021 WL 4894264, at *9 (D. Or. Oct. 19, 2021) (“[T]he Court 5 has no trouble concluding that [Oregon’s] vaccine mandates [requiring all employees and 6 workers employed by the executive branch of the Oregon state government to be fully 7 vaccinated] are rationally related to a legitimate state interest.”); see also Roman Cath. 8 Diocese, 141 S. Ct. at 63, 70 (Gorsuch, J., concurring) (describing Jacobson as applying 9 rational basis review); Heller, 509 U.S. at 321 (“[C]ourts are compelled under rational- 10 basis review to accept [the government’s] generalizations even when there is an imperfect 11 fit between means and ends.”). Plaintiffs’ substantive due process challenge therefore fails. 12 5. Claims Against the City of Phoenix 13 Plaintiffs PLEA and Local 493 assert three claims against Defendant the City of 14 Phoenix: violation of the Procurement Act; violation of the anticommandeering doctrine; 15 and violation of Plaintiffs’ due process rights to bodily integrity and to refuse medical 16 treatment. (Doc. 128.) Plaintiffs bring these claims against the City “as a relief defendant 17 only; they do not allege that Phoenix is liable under or has breached the duties alleged in 18 Counts I, IV, or VI.” (Id. at 2.) The Court will deny Plaintiffs’ claims. 19 Although this action was initially filed on September 14, 2021, the City was not 20 named as a Defendant until November 19, 2021. (Doc. 72.) Then, it was named as a 21 Defendant because, on November 18, 2021, the City, citing the Contractor Mandate, 22 notified its employees that they would be required to receive the COVID-19 vaccine by 23 January 18, 2022 or face discipline, up to and including termination. (Doc. 134 at 34 ¶ 10.) 24 The City has since suspended its vaccine requirement. (Doc. 123-1.) Thus, any claims 25 against it are likely nonjusticiable. But even if the City’s vaccination requirement were 26 still in place, Plaintiffs’ claims would necessarily fail. 27 Plaintiffs’ claims against the City are based on a misunderstanding of the 28 Declaratory Judgment Act., 28 U.S.C. § 2201. Although Plaintiffs are correct that a federal

- 49 - 1 court has jurisdiction under the Act where “the declaratory judgment defendant could have 2 brought a coercive action in federal court to enforce its rights,” Standard Ins. Co. v. Saklad, 3 127 F.3d 1179, 1181 (9th Cir. 1997) (quoting Janakes v. USPS, 768 F.2d 1091, 1093 (9th 4 Cir. 1985)), jurisdiction to seek a declaratory judgment in federal court does not mean that 5 such a judgment will issue. Jurisdiction is necessary, but alone insufficient, for a court to 6 grant declaratory relief. Plaintiffs must also demonstrate that they are entitled to substantive 7 relief. 8 Plaintiffs have made no such showing here. Indeed, Plaintiffs have conceded that 9 the City is not liable on the claims asserted against it. 24 (Doc. 128 at 2.) Those claims will 10 therefore be denied, and no injunction will issue against the City. 11 C. Irreparable Harm 12 To obtain an injunction, Plaintiffs must also demonstrate that they have suffered or 13 are likely to suffer irreparable harm in the absence of injunctive relief. See eBay Inc., 547 14 U.S. at 391. Irreparable harm is “harm for which there is no adequate legal remedy, such 15 as an award for damages.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 16 2014). Economic harm is not generally considered irreparable, E. Bay Sanctuary Covenant 17 v. Trump, 950 F.3d 1242, 1280 (9th Cir. 2020), but where a party cannot recover the 18 monetary damages flowing from its injury—as is often the case where the party challenges 19 federal regulatory action—economic harm can be considered irreparable. Id. (citing 20 California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018)); see also City & Cnty. of San 21 Francisco v. USCIS, 981 F.3d 742, 762 (“There is no dispute that . . . economic harm is 22 sufficient to constitute irreparable harm because of the unavailability of monetary 23 damages.”); Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., 24 concurring in part and concurring in the judgment) (“[A] regulation later held invalid 25 24 Even absent Plaintiffs’ concession, their claims would fail. The City of Phoenix, 26 obviously, is not a federal actor. It is therefore not subject to the strictures of the Procurement Act, which binds only federal actors, or the anticommandeering doctrine, 27 which prevents the federal government, not local municipalities, from commandeering state governments. Thus, the City played no part in the enactment of the Contractor 28 Mandate and plays no part in its enforcement. And, as described above, there is no due process right to refuse vaccination. See supra Section III.B.4.

- 50 - 1 almost always produces the irreparable harm of nonrecoverable compliance costs.”). 2 Intangible injuries may also qualify as irreparable harm because such injuries generally 3 lack an adequate legal remedy. Ariz. Dream Act Coal., 757 F.3d at 1068. 4 Given these principles, Plaintiffs are likely to suffer irreparable harm. First, because 5 many Arizona agencies are federal contractors (as detailed above), Plaintiffs face the loss 6 of significant federal contracts and funds if the Contractor Mandate is not enjoined. See 7 supra Section III.A.1.ii. Second, were the State to adhere to the mandate and require its 8 employees to be vaccinated, some employees would resign or be terminated, harming the 9 State’s operations through the loss of institutional knowledge and human capital, and 10 requiring the State to incur significant recruitment, on-boarding, and training costs. Third, 11 the State will incur significant compliance and monitoring costs should its agencies be 12 required to adhere to the mandate. While these harms are primarily economic, they are not 13 compensable through damages because Defendants are entitled to sovereign immunity. 25 14 Moreover, because the Contractor Mandate conflicts with Arizona law, complying 15 with the mandate would require the State to violate its own laws. See supra Section III.B.1. 16 This infringement on Arizona’s sovereign interests constitutes irreparable harm. See Abbott 17 v. Perez, 585 U.S. —, 138 S. Ct. 2305, 2324 n.17 (2018) (a state’s “inability to enforce its 18 duly enacted plans clearly inflicts irreparable harm”); Maryland v. King, 567 U.S. 1301, 19 1303 (2012) (Roberts, C.J., in chambers) (“Any time a State is enjoined by a court from 20 effectuating statutes enacted by representatives of its people, it suffers a form of irreparable 21 injury.”). 22 Plaintiffs are therefore likely to suffer irreparable harm, and an injunction may lie. 23 D. Balance of Hardships and Public Interest 24 For an injunction to issue, Plaintiffs must also show that the balance of equities 25 tips in their favor and that an injunction is in the public interest. eBay Inc., 547 U.S. at 391. 26 When the government is a party to the case, the balance of equities and public interest 27 25 The APA, 5 U.S.C. § 702, waives sovereign immunity with respect to suits for injunctive 28 relief but not suits for money damages. And, contrary to Defendants’ assertions, the CDA does not provide an adequate remedy for Plaintiffs’ injuries. See supra Section III.A.2.

- 51 - 1 factors merge. See Doe #1 v. Trump, 984 F.3d 848, 861–62 (9th Cir. 2020). 2 Defendants contend that enjoining the Contractor Mandate would disserve the 3 public interest because it would increase “the spread of COVID-19 among millions of 4 federal employees, federal contractors, and the members of the public with whom they 5 interact” and would “hamper[] the efficiency of the federal workforce and the contractors 6 on which the federal government depends.” (Doc. 52 at 55–56.) These arguments are 7 unpersuasive. 8 Defendants have no legitimate interest in implementing or enforcing an unlawful 9 vaccination policy. The public interest is always served by maintaining our constitutional 10 structure, including through enforcing statutory limitations on the executive’s exercise of 11 delegated authority. See E. Bay Sanctuary Covenant, 950 F.3d at 1281 (“[T]he public has 12 an interest in ensuring that the statutes enacted by their representatives are not imperiled 13 by executive fiat.” (internal citations and quotation marks omitted)); see also, e.g., Gundy, 14 139 S. Ct. at 2133 (Gorsuch, J., dissenting) (“[I]t would frustrate ‘the system of government 15 ordained by the Constitution’ if Congress could merely announce vague aspirations and 16 then assign others the responsibility of adopting legislation to realize its goals.” (quoting 17 Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892))). Thus, while Defendants are of 18 course correct that slowing the spread of the virus is in the public’s interest, achieving that 19 objective through the unlawful means employed here is not. See E. Bay Sanctuary 20 Covenant, 950 F.3d at 1282 (“[T]he weight we ascribe to this factor depends on the extent 21 to which we agree that the [challenged executive branch policy] overrides plain 22 congressional intent.”); see also Kentucky, 2021 WL 5587446, at *1 (“This is not a case 23 about whether vaccines are effective. They are. Nor is this a case about whether the 24 government, at some level, and in some circumstances, can require citizens to obtain 25 vaccines. It can.”); In re MCP No. 165, 21 F.4th 357, 389 (6th Cir. 2021) (Larsen, J., 26 dissenting) (“[Q]uestions of health science and policy lie beyond the judicial ken. . . . But 27 this case asks a legal question: whether Congress authorized the action the agency took.”). 28 Despite Defendants’ arguments to the contrary, issuing an injunction here would do

- 52 - 1 them little harm, since they retain the right to recommend vaccination among contractors 2 and to seek contractual remedies in the event a contractor fails to adequately perform on a 3 contract. See Florida, slip. op. at 37. Declining to issue an injunction, on the other hand, 4 would substantially harm the State, as it would be forced to either forfeit important 5 federal contracts or violate its own laws and policies. See supra Section III.B.1. Moreover, 6 because “the mere specter of the Mandate has contributed to untold economic upheaval in 7 recent months,” stemming the “economic uncertainty” and “workplace strife” surrounding 8 the mandate is clearly in the public’s interest. BST Holdings, 17 F.4th at 618. 9 Thus, the balance of the equities and the public interest weigh in favor of issuing 10 an injunction. 11 IV. SCOPE OF RELIEF 12 Plaintiffs have adequately demonstrated that they are entitled to an injunction on the 13 Contractor Mandate. But before the injunction can issue, the Court must determine its 14 appropriate scope. Plaintiffs seek a nationwide injunction “because of the nationwide 15 scope of the mandates, and because of their systemic impact.” (Doc. 72 at 25.) Defendants, 16 on the other hand, contend that any injunction “must be tailored to redress [the State’s] 17 particular injury.” (Doc. 108 at 27 (quoting Gill v. Whitford, 585 U.S. —, 138 S. Ct. 1916, 18 1934 (2018)).) 19 While the reasoning employed herein applies with equal force to the federal 20 government’s dealings with contractors throughout the nation, history and prudence 21 counsel in favor of granting only a limited injunction. See Hawaii, 138 S. Ct. at 2424–29 22 (Thomas, J., concurring) (“I am skeptical that district courts have the authority to enter 23 universal injunctions. These injunctions did not emerge until a century and a half after the 24 founding. And they appear to be inconsistent with longstanding limits on equitable relief 25 and the power of Article III courts.”). Universal injunctions “prevent[] legal questions from 26 percolating through the federal courts, encourag[e] forum shopping, and mak[e] every case 27 a national emergency for the courts and for the Executive Branch.” Id. at 2425; see also 28 DHS v. New York, U.S. —, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring) (“The

- 53 - 1 traditional system of lower courts issuing interlocutory relief limited to the parties at 2 hand . . . encourages multiple judges and multiple circuits to weigh in only after careful 3 deliberation, a process that permits the airing of competing views that aids this Court’s own 4 decisionmaking process.”). 5 Equitable remedies should redress only the injuries sustained by a particular plaintiff 6 in a particular case. See DHS, 140 S. Ct. at 600 (Gorsuch, J., concurring). This narrow 7 understanding of the district courts’ equitable power is consistent with the courts’ 8 longstanding view that the judicial power is limited to the resolution of individual cases 9 and controversies. See U.S. Const. art. III, § 2; see also Hawaii, 138 S. Ct. at 2427–28 10 (Thomas, J., concurring) (citing sources). 11 Consistent with these principles, the Court will issue an injunction limited to the 12 geographic boundaries of the State of Arizona. 13 V. CONCLUSION 14 The Court has jurisdiction to adjudicate Plaintiffs’ claims challenging the 15 Contractor Mandate but lacks jurisdiction over Plaintiffs’ claims challenging the 16 Employee Mandate. The Contractor Mandate exceeds the scope of the President’s 17 authority under the Procurement Act. The Court will therefore issue an order enjoining 18 the federal Defendants, but not the City of Phoenix, from enforcing the Contractor 19 Mandate. There being no just reason for delay, see Fed. R. Civ. P. 54(b), the Court will 20 enter judgment on the Vaccine Counts upon entering a permanent injunction, in a 21 subsequent order. The Immigration Counts remain pending. 22 Accordingly, 23 IT IS ORDERED granting Plaintiffs’ Motion to Bifurcate Claims and Consolidate 24 Trial on the Merits (Doc. 73). 25 IT IS FURTHER ORDERED granting in part, and denying in part, Plaintiffs’ 26 Motion for Preliminary Injunction (Doc. 72), as set forth herein. 27 IT IS FURTHER ORDERED that consistent with the terms of this Order, 28 Plaintiffs the State of Arizona and Arizona Attorney General Mark Brnovich shall submit

- 54 - 1 a proposed form of injunction by no later than Tuesday, February 1, 2022. The proposed 2 form of injunction shall detail the individuals and entities that are enjoined, the capacity in 3 which they are enjoined, and the precise activities they are enjoined from engaging in. The 4 proposed injunction must be specific enough to give Defendants notice as to exactly what 5 comes within its scope. 6 IT IS FINALLY ORDERED that Defendants may submit objections to Plaintiffs’ 7 proposed form of injunction by no later than Monday, February 7, 2022. The objections 8 shall not repeat merits arguments and shall be limited to arguments that Plaintiffs’ proposed 9 form of injunction is inconsistent with the terms of this Order. 10 Dated this 27th day of January, 2022. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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