Commonwealth of Ky. v. Joseph R. Biden ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0002p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
COMMONWEALTH OF KENTUCKY, et al.,
│
Plaintiffs-Appellees, │
> No. 21-6147
│
v. │
│
JOSEPH R. BIDEN, in his official capacity as President │
of the United States of America, et al., │
Defendants-Appellants. │
┘
On Motion for Stay.
United States District Court for the Eastern District of Kentucky at Frankfort.
3:21-cv-00055—Gregory F. Van Tatenhove, District Judge.
Decided and Filed: January 5, 2022
Before: SUHRHEINRICH, COLE, and BUSH, Circuit Judges.
_________________
COUNSEL
ON MOTION FOR STAY: Anna O. Mohan, David L. Peters, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. ON RESPONSE: Barry L.
Dunn, Matthew F. Kuhn, Brett R. Nolan, Alexander Y. Magera, Michael R. Wajda, OFFICE OF
THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Benjamin M. Flowers, Carol
O’Brien, May Davis, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,
James R. Flaiz, GEAGUA COUNTY PROSECUTOR’S OFFICE, Chardon, Ohio, Brando J.
Smith, Dianna Baker Shew, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellees. ON AMICUS BRIEF: Rachel L. Fried, Jessica Anne
Morton, Jeffrey B. Dubner, JoAnn Kintz, DEMOCRACY FORWARD FOUNDATION,
Washington, D.C., for Amici Curiae.
BUSH, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined, and
COLE, J., joined in part. COLE, J. (pp. 34–39), delivered a separate dissenting opinion.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 2
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. In 1949, Congress passed a statute called the Federal
Property and Administrative Services Act (“Property Act”) to facilitate the “economical and
efficient” purchase of goods and services on behalf of the federal government. See 40 U.S.C.
§ 101. The Property Act serves an uncontroversial purpose; who doesn’t want the government to
be more “economical and efficient”? Yet that laudable legislative-branch prescription, in place
for the last seventy years, has recently been re-envisioned by the executive. In November 2021,
the Safer Federal Workforce Task Force, under the supposed auspices of the Act, issued a
“Guidance” mandating that the employees of federal contractors in “covered contract[s]” with
the federal government become fully vaccinated against COVID-19.1 That directive sweeps in at
least one-fifth of our nation’s workforce, possibly more. And so an act establishing an efficient
“system of property management,” S. Rep. 1413 at 1 (1948), was transformed into a novel font
of federal authority to regulate the private health decisions of millions of Americans.
In response, three states (Ohio, Kentucky, and Tennessee) and two Ohio sheriffs’ offices
filed suit. They collectively alleged that nothing in the Property Act authorizes the contractor
mandate, that the contractor mandate violates various other federal statutes, and that its intrusion
upon traditional state prerogatives raises serious constitutional concerns under federalism
principles and the Tenth Amendment. The district court agreed. It enjoined enforcement of the
contractor mandate throughout Ohio, Kentucky, and Tennessee. It also denied the subsequent
motion of the federal-government defendants2 to stay the injunction pending appeal. The
government now comes to us with the same request. But because the government has
established none of the showings required to obtain a stay, we DENY such relief.
1We call this directive the “contractor mandate.”
2We refer to the federal-government defendants collectively as “the government.”
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 3
I.
On September 9, 2021, President Biden delivered an address in which he announced that
his “patience” with “unvaccinated Americans . . . is wearing thin.” Amended Complaint at 1 n.1,
R. 22 (citing Joseph R. Biden, Remarks by President Biden on Fighting the COVID-19
Pandemic, The White House (Sept. 9, 2021), https://perma.cc/GQG5-YBXK). Reflecting that
fact, the President earlier that day had signed Executive Order 14042 (E.O. 14042), titled
“Ensuring Adequate COVID Safety Protocols for Federal Contractors.” 86 Fed. Reg. 50,985(Sept. 14, 2021). Citing the Property Act and 3 U.S.C. § 3013 as the relevant statutory
authorities, the Order directs federal contractors to “provide adequate COVID-19 safeguards to
their workers performing on or in connection with a Federal Government contract[.]” Id. More
specifically, it directs them to comply “with all guidance for contractor or subcontractor
workplace locations published by the Safer Federal Workforce Task Force”—itself created by
President Biden in January 2021—“provided that the Director of the Office of Management and
Budget” (“OMB”) determines that such guidance “will promote economy and efficiency in
Federal contracting.” Id.
The Safer Federal Workforce Task Force promulgated its Guidance a few weeks later.
See Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal
Contractors and Subcontractors (Sept. 24, 2021), https://perma.cc/2R27-9J4U. The Guidance
requires “COVID-19 vaccination of covered contractor employees, except in limited
circumstances where an employee is legally entitled to an accommodation,” id. at 1, such as for a
disability or religious objection. See id. at 5 (“Covered contractors must ensure that all covered
contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled
to an accommodation.”) (emphasis added). Even fully vaccinated employees must also continue
to wear masks if they work “[i]n areas of high or substantial community transmission.” Id. at 6.
Covered contractors “may,” but apparently are not required to, relax the masking requirement
when the employee is eating or “alone in an office with floor to ceiling walls and a closed door.”
Id. at 7. Further, the Guidance requires vaccination even of employees “who are not themselves
3This statute simply permits the President to delegate statutory authority that he already possesses to his
agents within the executive branch. See 3 U.S.C. § 301. It is not an independent grant of authority to the President.
Id.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 4
working on or in connection with a covered contract,” id. at 3–4 (emphasis added), at least if
they are “likely to be present” where a covered contract is being performed. Id. at 8.
Four days after the Guidance issued, the OMB Director issued a perfunctory
“determination” pursuant to E.O. 14042 that the Guidance would promote “economy and
efficiency” under the Property Act. 86 Fed. Reg. 53,691, 53,691–92 (Sept. 28, 2021).4 But in
response to ensuing lawsuits (or so the plaintiffs allege), the OMB bolstered the Director’s initial
explanation with another notice of determination on November 16, 2021.5 86 Fed. Reg. 63,418(Nov. 16, 2021); see also Amended Complaint ¶ 120, R. 22. Though longer than its predecessor,
the second notice of determination mostly recapitulates the relevant features of the contractor
mandate: that it requires vaccination at least and, for some employees, both vaccination and
masking; that it includes even those employees not themselves performing a covered contract;
and that it admits of only limited exceptions. Id. at 63,419–21. The determination also includes
some information in its final pages about how vaccination reduces COVID’s net costs—for
instance, by reducing absenteeism. Id. at 63,422–23. And thus it pronounces “OMB’s expert
opinion that the Guidance will promote economy and efficiency in Federal Government
procurement.” Id. at 63,423.
Before turning to the procedural history underlying this litigation, we pause to make a
few observations on the Guidance’s breadth. First, according to the Department of Labor,
“workers employed by federal contractors” constitute “approximately one-fifth of the entire U.S.
labor force.” Amended Complaint ¶ 127, R. 22 (citing Dep’t of Labor, History of Executive
Order 11246, https://perma.cc/6ZXJ-WGR8). As the plaintiffs point out, contractors thus
constitute “large portions of the labor force[s]” in Ohio, Kentucky, and Tennessee. Id. And
4The notice of determination contains a single sentence of analysis, which we reproduce here in full:
“Based on my review of the Safer Federal Workforce Task Force’s COVID-19 Workplace Safety: Guidance for
Federal Contractors and Subcontractors, scheduled for issuance on September 24, 2021, and exercising the
President’s authority under the Federal Property and Administrative Services Act (see 3 U.S.C. 301I) [sic] delegated
to me through Executive Order No. 14042, I have determined that compliance by Federal contractors and
subcontractors with the COVID-19 workplace safety protocols detailed in that guidance will improve economy and
efficiency by reducing absenteeism and decreasing labor costs for contractors and subcontractors working on or in
connection with a Federal Government contract.” 86 Fed. Reg. at 53,692.
5In the meantime, the Federal Acquisition Regulatory Council promulgated a model “deviation clause”—
language to be inserted into federal contracts to make them consistent with the Safer Federal Workforce Task Force
Guidance. See Amended Complaint ¶ 113, R. 22.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 5
second, we emphasize just how expansively the Guidance defines which share of those
contractors are “covered.” The Guidance does not cover merely those employees performing a
covered contract. Rather, it also sweeps in employees merely working “in connection with” such
contracts, and even “employees of covered contractors who are not themselves working on or in
connection with a covered contract.” Guidance, supra, at 3–4 (emphasis added); cf. Mont v.
United States, 139 S. Ct. 1826, 1832 (2019) (“This Court has . . . recognized that ‘“in connection
with” is essentially indeterminate because connections, like relations, stop nowhere.’” (quoting
Maracich v. Spears, 570 U.S. 48, 59 (2013))).
True, as we mentioned, the Guidance stipulates that such employees are “covered” only if
they are “likely” to interact with employees performing a covered contract. Guidance, supra, at
4. But it then explains that unless the “covered contractor can affirmatively determine that none
of its employees” working on matters other than the covered contract “will come into contact
with a covered contractor employee during the period of performance,” then those employees
must also become vaccinated. Id. at 10, 11 (emphasis added). Thus, as the Guidance explains, it
includes personnel working in such areas as “human resources, billing, and legal review.” Id. at
13. Likewise, “covered” workplaces include “common areas,” parking garages, and even
workplaces outdoors. Id. at 10, 11. Not only that, an employee working from home “is a
covered contractor employee.” Id. at 11. So employees confined to their residences still “must
comply with the vaccination requirement for covered contractor employees, even if the employee
never works at either a covered contractor workplace or Federal workplace during the
performance of the contract.” Id. (emphasis added). Given that expansive scope of the
Guidance, the interpretive trouble is not figuring out who’s “covered”; the difficult issue is
understanding who, based on the Guidance’s definition of “covered,” could possibly not be
covered.
II.
We turn now to the underlying suit. The plaintiffs filed their complaint against the
relevant federal officials on November 4, 2021, Complaint, R. 1, followed by an amended,
operative complaint on November 15, 2021, Amended Complaint, R. 22. Two aspects of the
complaint are particularly relevant to our stay determination: the plaintiffs’ theory of injury, on
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 6
the one hand, and their concomitant theories of standing to sue, on the other. As for injury, the
complaint alleges that the contractor mandate will encounter substantial resistance from the
covered workforces both in the Ohio sheriffs’ offices and throughout Ohio, Kentucky, and
Tennessee. Id. ¶¶ 52e–f. Many covered employees, the plaintiffs allege, would rather quit their
jobs than comply with the contractor mandate. Id. The mandate thus poses serious obstacles to
the sheriffs’ offices’ and states’ continued contracting with the federal government. Id. The
sheriffs’ offices may be impeded in their continued ability to carry out basic public-safety
functions if they lose their contracts with the Department of Homeland Security (“DHS”), id.
¶¶ 28–34, while the states may lose millions in valuable contracts between the federal
government and their state agencies and universities, id. ¶¶ 12, 22, 48.
From those allegations, the complaint then propounds three theories of standing, one of
which is shared by the states and sheriffs’ offices and two of which are unique to the states.
First, both the states and sheriffs’ offices allege that they are suing in their own proprietary
capacities to vindicate their own pecuniary interests in continued contracting with the federal
government. Id. ¶¶ 1, 13, 34, 41. Second, the states also allege that they are suing as “separate
sovereigns” to redress the injuries they suffer from federal intrusions into areas of traditional
state concern, such as the regulation of public health. See id.; see also Response at 8. So in this
sense as well, the states sue to vindicate their own “sovereign” and “quasi-sovereign” interests
against federal overreach. Id. And third, the states allege that they are suing in a parens patriae
capacity to redress the injuries of third parties—namely, of their respective citizens allegedly
injured by the contractor mandate. Id.; see also Response at 8–9. The parens patriae theory is
thus distinct from the former two theories of injury in that the states purport to litigate on their
citizens’ behalf, rather than on behalf of the states’ own proprietary, sovereign, or quasi-
sovereign interests. See id.
The district court apparently rejected all but the parens patriae theory of standing.
It claimed that neither the sheriffs’ offices nor the states had “provid[ed] an example of a new
contract that is subject to the mandate in their briefing.” Kentucky v. Biden, No. 3:21-cv-00055-
GFVT, __ F. Supp. 3d __, 2021 WL 5587446, at *3 (E.D. Ky. Nov. 30, 2021). It thus seemed to
reason that without some specific future contract identified, the plaintiffs could not be suing to
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 7
redress their own injuries. But the district court then reasoned that the state plaintiffs could sue
under at least the third theory—parens patriae—to redress their citizens’ alleged injuries from
the contractor mandate. Id. It noted that “federal contracts bring in billions of dollars to the
[plaintiff states] annually” and that “there is every indication that federal contractors and
subcontractors throughout Kentucky, Ohio, and Tennessee will continue bidding for new
contracting opportunities.” Id. at *4. Thus, the district court held that the states could litigate on
behalf of those contractors within the states’ jurisdictions that would be injured by the contractor
mandate. Id.The district court then proceeded to the merits of the dispute. It rejected the plaintiffs’
contention that the Guidance is arbitrary and capricious, labeling OMB’s second “economy-and-
efficiency analysis” “robust.” Id. at *12. But it proved more receptive to the plaintiffs’ other
arguments. It first concluded as a matter of statutory interpretation that the Property Act likely
does not empower the President to “promulgat[e] a public health measure such as mandatory
vaccination.” Id. at *6. Second, it reasoned that the contractor mandate seemed inconsistent
with the Competition in Contracting Act (“CCA”). Id. at *8. The CCA requires “full and open
competition through the use of competitive procedures,” and yet the contractor mandate seems to
exclude from such competition otherwise-capable contractors unwilling to comply with the
contractor mandate. Id. (quoting 41 U.S.C. § 3301(a)(1)). Third, the district court appeared to
suggest, but did not explicitly rely on the point, that the Property Act engenders non-delegation
concerns. Id. at *8–9. And last, it expressed “a serious concern that Defendants have stepped
into an area traditionally reserved to the States,” in apparent contravention of federalism
principles and the Tenth Amendment. Id. at *10. It thus preliminarily enjoined enforcement of
the contractor mandate throughout Ohio, Kentucky, and Tennessee.
The government took an interlocutory appeal of that preliminary injunction to this Court.
See 28 U.S.C. § 1292(a)(1). It also moved the district court to stay its injunction pending appeal.
The district court denied the government’s motion and stood by its initial analysis. In response,
the government likewise moved this Court for a stay of the injunction. We turn now to that
request.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 8
III.
As our Court recently explained, “[a] stay is an intrusion into the ordinary processes of
administration and judicial review.” In re MCP No. 165, OSHA Interim Final Rule: COVID-19
Vaccination & Testing, No. 21-7000, __ F.4th __, 2021 WL 5989357, *1, 3 (6th Cir. Dec. 17,
2021) (cleaned up) (quoting Nken v. Holder, 556 U.S. 418, 427 (2009)). Thus, a stay “is not a
matter of right.” Id. (quoting Nken, 556 U.S. at 427). Rather, “‘the heavy burden for making out
a case for such extraordinary relief’ rests on ‘the moving part[y]’”—here, the federal
government. Id. (quoting Winston-Salem/Forsyth Cnty. Bd. of Educ. v. Scott, 404 U.S. 1221,
1231 (1971)).
A four-factor inquiry governs whether imposition of a stay is appropriate: “(1) whether
the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in the proceeding; and (4) where the
public interest lies.” Nken, 556 U.S. at 426 (quoting Hilton v. Braunskill, 481 U.S. 770, 776
(1987)). In other words, the government bears the “heavy burden” of showing that it is likely to
succeed on the merits of its appeal, that it will be irreparably injured without a stay, that
imposition of a stay would not “substantially injure” the plaintiffs, and that the public interest
favors a stay. Id. at 427, 426. But we remember that “[t]hese factors are not prerequisites that
must be met”; they are instead “interrelated considerations that must be balanced together.”
SawariMedia, LLC v. Whitmer, 963 F.3d 595, 596 (6th Cir. 2020) (quoting Serv. Emp. Int’l
Union Loc. 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (per curiam)). And “w[e] consider the
motion de novo[,] because ‘we are not reviewing any district court decision or order.’” Priorities
USA v. Nessel, 978 F.3d 976, 982 (6th Cir. 2020) (quoting A. Philip Randolph Inst. v. Husted,
907 F.3d 913, 917 (6th Cir. 2018)).
IV.
We will analyze the four stay factors in order, beginning with the government’s
likelihood of success on appeal in its arguments that (1) the plaintiffs lack standing to sue and
(2) even if the plaintiffs have standing, the Property Act authorizes the contractor mandate.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 9
For the reasons explained below, we conclude that the government is not likely to succeed on
appeal on either argument.
Factor 1: Likelihood of Success on the Merits
We begin with the government’s contentions on standing. We explain first why the
government is unlikely to succeed in its contention that the plaintiff states and sheriffs’ offices
lack standing to sue in their own proprietary capacities. Next, we explain why the government is
likely to succeed in its contention that the plaintiff states have no parens patriae standing to
litigate on behalf of their allegedly injured citizens. But we conclude by explaining why the
government is not likely to succeed in its contention that the plaintiff states cannot sue to
vindicate their own interests in their sovereign and quasi-sovereign capacities.6
Standing Based on the States’ and Sheriffs’ Offices’ Own Proprietary Capacities
Both the plaintiff states and sheriffs’ offices likely have standing to sue in their own
proprietary capacities as contractors with the federal government. As the plaintiffs point out, the
contractor mandate is already affecting the Seneca County Sheriff’s Office’s contract with DHS.
Response at 10. After the mandate was announced, a “contract specialist” from DHS emailed
Seneca County Sheriff Frederick W. Stevens instructing him to “please provide signature” on a
contractual modification to incorporate the contractor mandate. See Hadden E-Mail, R. 27-2;
Modification, R. 12-2. Declining to incorporate the modification clause could thus jeopardize
the sheriffs’ offices’ contracts with DHS.
Moreover, the sheriffs’ offices have a demonstrated history of contracting with federal
agencies like DHS and Immigration and Customs Enforcement (“ICE”). See Stevens Dec., R.
12-2; Hildenbrand Dec., R. 12-3. Requiring the contractor mandate in the sheriffs’ offices’
other, future contracts with DHS or ICE could also adversely affect the sheriffs’ offices’ own
economic interests. They either will be unable to comply with the mandate, given anticipated
resistance to it, and will lose the contracts, or they will comply with the contractor mandate but
6We reserve the constitutional standing analysis—injury-in-fact, causation, and redressability—until we
have defined the plaintiffs’ relevant interests. Until we have defined those interests (that is, the sovereign, quasi-
sovereign, and proprietary interests at stake), we cannot analyze whether those interests have suffered a redressable
injury-in-fact caused by the defendants.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 10
suffer serious hits to their workforces as employees resign in protest. The sheriffs’ offices likely
have standing in their own proprietary capacities as contractors to contest these negative
ramifications of the contractor mandate.
Likewise, whatever the complexities of parens patriae standing, no one claims that a
prudential bar blocks the states from litigating in their own proprietary capacities to vindicate
their own proprietary interests threatened by the contractor mandate. See Massachusetts v. EPA,
549 U.S. 497, 522 (2007). As the states have shown, they and their state agencies are themselves
federal contractors that will become subject to the contractor mandate but for the district court’s
injunction.7 For instance, state universities, state departments of health, and jails reliant on the
states’ coffers all contract extensively with the federal government. Relevant federal agencies
with which the states have contracts include the United States Department of Justice, the United
States Marshals Service, the Food and Drug Administration, the National Institutes of Health, the
Bureau of Labor Statistics, the National Aeronautics and Space Administration, the Consumer
Product Safety Commission, and the Centers for Disease Control and Prevention (“CDC”). See
Amended Complaint ¶¶ 4, 16–17, R. 22.
As a result, each state so contracting is threatened with the imposition of the contractor
mandate in two distinct ways. First, the federal government may enforce the contractor mandate
any time the parties need to modify an existing contract with the state plaintiffs, given that the
Guidance defines “contract” so expansively as to include modifications to an existing contract.
See Guidance, supra, at 3 (“In addition to bilateral instruments, contracts include, but are not
limited to, awards and notices of awards; job orders or task letters issued under basic ordering
7The government and the dissent complain that the state plaintiffs have not introduced specific contracts
into the record that will become subject to the contractor mandate. Gov’t Mot. for Stay at 8. This argument is
unpersuasive. The complaint is rife with well-pleaded allegations that the state plaintiffs and their state agencies
contract with multiple federal agencies, including the United States Department of Justice, the United States
Marshals Service, the Food and Drug Administration, the National Institutes of Health, the Bureau of Labor
Statistics, the National Aeronautics and Space Administration, the Consumer Product Safety Commission, and the
Centers for Disease Control and Prevention. See Amended Complaint ¶¶ 4, 16–17, R. 22. The plaintiffs also
bolstered those allegations with supporting evidence, as was required to obtain a preliminary injunction. See
Niknejad Dec., R. 12-1; Maddox Dec., R. 12-4; Flowers Dec., R. 22-2; see also Leary v. Daeschner, 228 F.3d 729,
739 (6th Cir. 2000). And the Guidance is written so broadly that it would obviously apply to these contracts,
whether via modifications, renewals, options, or if the states should pursue additional contracts with these agencies.
See Guidance, supra, at 3–5.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 11
agreements; letter contracts; orders, such as purchase orders, under which the contract becomes
effective by written acceptance or performance; exercised contract options; and bilateral contract
modifications.”). Second, the state plaintiffs are also imminently threatened in their proprietary
capacities should they renew those existing contracts (thus triggering the mandate as well) or
should they choose to bid on new contracts to which the mandate applies. And if they chose not
to renew such contracts given the contractor mandate, they could lose millions of dollars in
funding from the federal government for critical state programs. See Amended Complaint ¶¶ 12,
22, 48, R. 22.
Given these realities, we are not persuaded by the government’s claims that the states
lack standing in their proprietary capacities because the contractor mandate applies “only in new
or renewed contracts.” Gov’t Mot. for Stay at 8. The events triggering imposition of the
mandate are far broader than merely the signing of a new contract. See Guidance, supra, at 3.
But the government also inexplicably discounts the virtual certainty that states will either bid on
new federal contracts or renew existing ones. By engaging in such prolific federal contracting,
the federal government has engendered substantial state reliance interests in securing future
contracts. It is unreasonable, given those reliance interests, to expect states or their agencies to
disavow their prior history of contracting and to decline to seek future such opportunities. And
that point only underscores the states’ injury. The federal government of course knows that these
reliance interests exist, which is why it seeks to purchase states’ submission by leveraging those
interests to force their acquiescence to the contractor mandate. See Philip Hamburger,
Purchasing Submission: Conditions, Power, and Freedom 18 (2021) (criticizing the federal
government’s use of the spending power “to sidestep congressional lawmaking, adjudication by
the courts, the enumerated federal powers, federalism, and a host of constitutional rights”).
We conclude, therefore, that the plaintiffs have plausibly alleged a theory of standing in their
proprietary capacities.
The States’ Parens Patriae Standing
In addition to their proprietary interests, the states assert broader theories of standing
based on parens patriae and their sovereign and quasi-sovereign interests. We turn first to
parens patriae, which we conclude is not a viable means for standing, and then contrast it with
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 12
standing in a sovereign or quasi-sovereign capacity, which, as we explain, the states have validly
established.
A brief clarification of terms is useful at the outset. “Parens patriae,” at least in the
context of standing, really encompasses two distinct concepts. First is the original parens
patriae doctrine, a form of third-party standing that existed at common law. See Chapman v.
Tristar Prod., Inc., 940 F.3d 299, 305 (6th Cir. 2019). Under this conception of parens
patriae—a term literally meaning “parent of the country”—the King could litigate on behalf of
those incapable of properly representing their own interests, such as the mentally disabled. Id.(quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600 (1982)).
The King, in other words, did not sue to redress his own injuries but the injuries of those who
were, in effect, his wards. Alfred L. Snapp & Son, Inc., 458 U.S. at 600. Today, states may not
invoke this third-party-standing conception of parens patriae to sue the United States on behalf
of state citizens allegedly harmed by the federal government. See Massachusetts v. Mellon,
262 U.S. 447, 485–86 (1923). We will further explain the reasons for that change below, but we
note at the outset that to the extent the plaintiff states here purport to sue purely on behalf of their
own citizens’ interests, such a theory of standing is forbidden.
That brings us to the second, more modern conception of parens patriae, which, unlike
its ancestor, generally is permissible. Under this more modern conception, states sometimes
purport to sue in a “parens patriae” capacity, yet what they are really doing is asserting some
injury to their own interests separate and apart from their citizens’ interests. Chapman, 940 F.3d
at 305 (citing Alfred L. Snapp & Son, Inc., 458 U.S. at 601–02). The classic cases involve public
nuisances, in which a state sues to prevent pollution that not only injures its citizens but also
invades the state’s prerogative to superintend the public health. See, e.g., Georgia v. Tenn.
Copper Co., 206 U.S. 230, 237 (1907). The Supreme Court has said that in such instances, “the
State has an interest independent of and behind the titles of its citizens” to safeguard “its
domain,” id. at 237, and its “health, comfort and welfare,” Pennsylvania v. West Virginia,
262 U.S. 553, 592 (1923), and thus that its suit may proceed.
The distinction between the two theories becomes most acute when a state sues the
United States and its officers. While a state may so sue when it seeks to vindicate its own
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 13
sovereign and quasi-sovereign interests against the United States, see infra pages 15–18, it
cannot sue when it claims to represent its citizens in a purely third-party parens patriae capacity.
The case most associated with this distinction is Massachusetts v. Mellon. There, Massachusetts
sought to sue on behalf of its own citizens to vindicate their putative interests against being
governed by an allegedly unconstitutional federal statute. Mellon, 262 U.S. at 485–86. After
explicitly noting that the dispute did not involve “quasi sovereign rights actually invaded or
threatened,” the Court explained:
We come next to consider whether the suit may be maintained by the state as the
representative of its citizens. To this the answer is not doubtful. . . . It cannot be
conceded that a state, as parens patriae, may institute judicial proceedings to
protect citizens of the United States from the operation of the statutes thereof.
While the state, under some circumstances, may sue for the protection of its
citizens, it is no part of its power or duty to enforce their rights in respect of their
relations with the federal government. In that field it is the United States, and not
the state, which represents them as parens patriae, when such representation
becomes appropriate; and to the former, and not to the latter, they must look for
such protective measures as flow from that status.
Id. (citation omitted). So, in other words, when sovereign and quasi-sovereign interests are not
on the line, a state cannot litigate in a third-party capacity as parens patriae against the United
States. A solitary state is not the “parent of the country”; that distinction belongs to the United
States. See also Georgia v. Penn. R.R. Co., 324 U.S. 439, 446 (1945) (“Commonwealth of
Massachusetts v. Mellon . . . make[s] plain that the United States not the State represents the
citizens as parens patriae in their relations to the federal government.”); South Carolina v.
Katzenbach, 383 U.S. 301, 324 (1966) (“Nor does a State have standing as the parent of its
citizens to invoke these constitutional provisions against the Federal Government, the ultimate
parens patriae of every American citizen.”). For better or worse, later cases label this prudential
constraint the “Mellon bar.” See, e.g., Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C.
Cir. 2019).
In the government’s view, the Mellon bar precludes the states’ entire suit because, also in
the government’s view, the complaint seeks to vindicate purely the third-party interests of
covered contractors that happen to reside within the plaintiff states. See Gov’t Mot. for Stay at
9–10. Yet reading the complaint in even the worst possible light cannot produce the
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 14
government’s desired result. The complaint refers to “sovereign, quasi-sovereign, proprietary,
and parens patriae interests,” which implies that the states view themselves as asserting both a
(permissible) sovereign-and-quasi-sovereign theory and an (impermissible) third-party parens
patriae theory, rather than wholly the latter theory. Amended Complaint ¶¶ 1, 13, 41, R. 22.
To the extent that the complaint asserts purely third-party interests of covered contractors
that happen to reside within the states, we agree with the government that this third-party theory
is impermissible under the Mellon bar. The United States, not individual states, is the modern-
day “parent of the country” for purposes of third-party parens patriae standing. But we disagree
that the Mellon bar, ipso facto, precludes all but the proprietary-capacity theory. For as their
complaint makes clear, the plaintiff states also seek to assert their own “sovereign” and “quasi-
sovereign” interests against the federal government. Id. Mellon explicitly does not speak to this
situation, since it disavowed that “quasi sovereign rights” were there at stake—a point the
Supreme Court later confirmed in another Massachusetts dispute, Massachusetts v. EPA. See
Massachusetts, 549 U.S. at 520 n.17 (“Mellon itself disavowed any such broad reading when it
noted that the Court had been ‘called upon to adjudicate, not rights of person or property, not
rights of dominion over physical domain, [and] not quasi-sovereign rights actually invaded or
threatened.” (quoting Mellon, 262 U.S. at 484–85)). There is thus no Mellon bar against the
plaintiff states’ suit in their sovereign and quasi-sovereign capacities.
The government’s strongest case in support of its contrary view is apparently the D.C.
Circuit’s decision in Bernhardt. True, Bernhardt appears to reject the distinction we draw
here—between (1) permissible quasi-sovereign-interest suits against the federal government,
sometimes nominally labeled “parens patriae” suits, and (2) classical parens patriae suits in
which states impermissibly claim to represent merely the interests of third parties against the
federal government. See Bernhardt, 923 F.3d at 182 (“The distinction is not, as Missouri
suggests, between two types of parens patriae lawsuits, one permissible and one not. It is
between a parens patriae lawsuit (what Mellon prohibits) and a State suing based on ‘its rights
under federal law’ (not a parens patriae lawsuit at all).”). We reject the D.C. Circuit’s analysis
for two reasons. First, it mistakenly conflates quasi-sovereign-interest suits with third-party
parens patriae suits to suggest that Mellon categorically bars both. Id. at 182. Yet as we have
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 15
shown, Mellon does not. That case invalidates the traditional third-party-standing conception of
parens patriae, but it does not invalidate (or even address) the quasi-sovereign-interest theory.
See Massachusetts, 549 U.S. at 520 n.17. And second, the D.C. Circuit’s putative “Bernhardt
bar” conflicts with Supreme Court precedent. As the Court recognized in Massachusetts v. EPA,
post-Mellon precedent endorses the view that a state has “standing to bring a cross-claim against
the United States to vindicate its ‘quasi-sovereign’ interests which are ‘independent of and
behind the titles of its citizens.’” Id. (quoting Nebraska v. Wyoming, 515 U.S. 1, 20 (1995)).
We therefore conclude that Mellon likely bars the state plaintiffs’ claims to the extent that
they seek to litigate in a purely third-party parens patriae capacity against the United States and
its agents. But we also conclude that Mellon likely does not bar the state plaintiffs’ claims to the
extent they assert sovereign and quasi-sovereign interests against those defendants. Having
established that the latter theory is permissible, we turn now to whether the plaintiffs have
sufficiently shown the sovereign- and quasi-sovereign-interests theory of standing.
The States’ Sovereign and Quasi-Sovereign Interests
As our Court, other circuits, and the Supreme Court have all recognized, states have a
variety of sovereign and quasi-sovereign interests that they validly may seek to vindicate in
litigation. States have a sovereign interest to sue the United States when a federal regulation
purports to preempt state law. See Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d
228, 232–33 (6th Cir. 1985) (holding that Ohio could sue to contest purported federal preemption
of a state law); see also Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 442–43 & n.1 (D.C. Cir.
1989) (same); Texas v. United States, 809 F.3d 134, 153 (5th Cir. 2015) (“[S]tates may have
standing based on . . . federal preemption of state law[.]”). States also have sovereign interests to
sue when they believe that the federal government has intruded upon areas traditionally within
states’ control. Texas, 809 F.3d at 153 (explaining that states also “may have standing based
on . . . federal assertions of authority to regulate matters they believe they control” (citing Tex.
Off. of Pub. Util. Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999))); see also Alfred L. Snapp
& Son, Inc., 458 U.S. at 601 (noting states’ “sovereign interests” in both “the exercise of
sovereign power over individuals and entities within the relevant jurisdiction” and “the demand
for recognition from other sovereigns”). And states also have a recognized quasi-sovereign
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 16
interest in the health and “economic well-being” of their populaces. Alfred L. Snapp & Son, Inc.,
458 U.S. at 605; see also Missouri v. Illinois, 180 U.S. 208, 241 (1901) (noting states’ interest in
“the health and comfort of the[ir] inhabitants”); Pennsylvania, 262 U.S. at 592 (concluding that a
state could litigate to defend the “health, comfort, and welfare” of its citizens); Chapman, 940
F.3d at 305 (“[A] state has a quasi-sovereign interest in the ‘health and well-being—both
physical and economic—of its residents in general.’”).
As we noted above and now emphasize here, none of these sovereign-and-quasi-
sovereign-interest theories relies on impermissible notions of third-party standing in which a
state asserts in a purely vicarious manner the interests of its citizens. Rather, as the Supreme
Court has recognized, these theories involve “interest[s] apart from the interests of particular
private parties.” Alfred L. Snapp & Son, Inc., 458 U.S. at 607. In these cases, in other words, the
state is not merely a “nominal party.” Id. The state instead asserts an injury that, while possibly
overlapping with individual citizens’ injuries, is really an additional injury to the state itself. Id.On that understanding, then, we conclude that the state plaintiffs have plausibly shown
standing in the states’ sovereign and quasi-sovereign capacities. They have done so in two ways.
First, they have shown that each of the states follows its own, contrary vaccination policy, and
that the contractor mandate threatens to override those policies. See Amended Complaint ¶¶ 11,
21, 47, R. 22. They have also plausibly alleged that the federal government has intruded upon an
area traditionally left to the states—the regulation of the public health of state citizens in general
and the decision whether to mandate vaccination in particular. See infra pages 28–30 (discussing
the federalism implications of the contractor mandate). The contractor mandate thus likely
implicates states’ power to make and enforce policies and regulations, as well as states’
traditional prerogative to superintend their citizens’ health and safety. See Alfred L. Snapp &
Son, Inc., 458 U.S. at 601, 603–04.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 17
And second, the plaintiff states have plausibly shown that the contractor mandate
threatens to damage each of the states’ economies.8 See id. at 605. For instance, the states note
8The CDC statistic judicially noticed by the dissent, see Dissenting Op. at 35, does not contradict the
plaintiff states’ plausible showing of economic harm. We may take judicial notice of generally known information
or government websites, see Broon v. Shoop, 963 F.3d 500, 509 (6th Cir. 2020), but judicially noticed data should at
least be particular to the issue at hand. On a national basis for the entire population, the CDC statistic reflects that
“85.5% of individuals over the age of 18 have received at least one dose of the vaccine, while 72.8%”—about three-
quarters—“are fully vaccinated.” Dissenting Op. at 35. Or, said differently, about 27.2%, or one-quarter, are not
fully vaccinated. The dissent then assumes that (1) the vaccination rate of the overall population describes the
vaccination rate of the national workforce, and (2) because federal contractors are about one-fifth of the national
workforce, only 27.2% must not be fully vaccinated. That is how the dissent arrives at its “five percent” figure,
since about one-quarter of twenty percent of the national workforce is also about five percent of the national
workforce. But this string of questionable assumptions relies on a CDC statistic that does not even directly address
the vaccination rate in the workforce of the plaintiff states. For one, the CDC’s national figure includes states with
highly vaccinated populations (for instance, New York) despite the vaccination rate in those states being much
higher than in Ohio, Kentucky, and Tennessee. See, e.g., New York State COVID-19 Vaccine Tracker: Vaccination
Progress to Date, N.Y. State Dep’t of Health (Jan. 3, 2022), https://perma.cc/Z4L4-RE5X?type=image (explaining
that 80.6% of New York’s over-18 population is fully vaccinated). Additionally, the CDC statistic includes all
Americans aged 65 years old and older, who, as a group, are very highly vaccinated but who are also much less
likely to be in the workforce. To accurately discuss the potential effects of the contractor mandate in the plaintiff
states, we need data tailored to both the plaintiff states and the working-age populations within them. It turns out
that such data show that vaccination rates are far lower for those populations than the CDC’s “72.8%” statistic
would suggest. In Tennessee, for instance, only 42.6% of the 21–30 population, 51.5% of the 31–40 population,
57.6% of the 41–50 population, and 64.4% of the 51–60 population are fully vaccinated. See Vaccination
Reporting, Tenn. Dep’t of Health (Jan. 2, 2022), https://www.tn.gov/health/cedep/ncov/covid-19-vaccine html (last
visited Jan. 3, 2022). Likewise, in Kentucky, only 40% of the 18–24 population, 46% of the 25–39
population, 55% of the 40–49 population, and 65% of the 50–64 population are fully vaccinated.
See Kentucky COVID-19 Vaccination Dashboard, Ky. Cabinet for Health & Family Servs.
(Jan. 3, 2022), https://dashboard.chfs.ky.gov/views/KYPublicFacingDashboard_16191000580170/KentuckyCOVID
-19Vaccination?%3Aiid=1&%3AisGuestRedirectFromVizportal=y&%3Aembed=y (last visited Jan. 3, 2022).
Last, in Ohio, only 48.32% of the 20–29 population, 55.41% of the 30–39 population, 60.96% of the 40–49
population, and 67.62% of the 50–59 population are fully vaccinated. COVID-19 Dashboard, Ohio Dep’t of Health,
https://perma.cc/3V99-2H5X?type=image. Concededly, 76.29% of Ohio’s 60–64 population is fully vaccinated. Id.So, while that lone sub-population exceeds the CDC’s national-average figure, every other working-age population
within the plaintiff states falls below it—in some cases far below. We also note that the CDC, at least for now, still
defines “fully vaccinated” as being two weeks post-second dose in a two-shot series or two weeks post dose in a
single-dose vaccine. COVID-19 Vaccine Booster Shots, CDC, https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/booster-shot html (last visited Jan. 3, 2022). But the definition of “fully vaccinated” is highly likely
to change to include both the initial doses and a booster shot, as new variants of COVID-19 continue to spread. See,
e.g., Nathaniel Weixel, Fauci: It’s ‘when, not if’ definition of fully vaccinated will change, The Hill (Dec. 8, 2021),
https://thehill.com/policy/healthcare/584943-fauci-when-not-if-definition-of-fully-vaccinated-will-change?rl=1 (last
visited Jan. 3, 2022); see also Emily Anthes & Noah Weiland, As Omicron Spreads, Officials Ponder What It Means
to Be ‘Fully Vaccinated,’ New York Times (Dec. 29, 2021), https://www.nytimes.com/2021/12/29/health/covid-
vaccinations-boosters html (last visited Jan. 3, 2022). E.O. 14042 and the deviation clauses implementing the
contractor mandate implicitly anticipate that this definition could change, given that they simply incorporate
whatever definition is supplied by the CDC, which is itself subject to change. And to the extent they are available,
data from the plaintiff states suggest that very little of the working-age population has received a booster shot. In
Kentucky, for instance, only 6% of the 18–24 population, 11% of the 25–39 population, 17% of the 40–49
population, and 27% of the 50–64 population have received boosters. See Kentucky COVID-19 Vaccination
Dashboard, supra. So, contrary to what the dissent implies, implementation of the contractor mandate would be far
from a non-event in the plaintiff states.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 18
that “almost 70% of unvaccinated Americans would quit their jobs if a vaccine mandate were
required and their exemption were denied.” Amended Complaint ¶ 52e, R. 22 (citing Jordan
Burrows, Employees Not Given Exemption Prefer to Quit Job Than Get COVID Vaccine, Poll
Shows, Salt Lake City ABC4.com (Sept. 15, 2021), https://perma.cc/6A95-CJXD). Likewise,
“9 in 10 large employers fear reductions in their workforces if they have to implement vaccine
mandates.” Id. (citing Karl Evers-Hillstrom, 9 in 10 Employers Say They Fear They’ll Lose
Unvaccinated Workers Over Mandate: Survey, The Hill (Oct. 18, 2021), https://perma.cc/V5ZJ-
7XUQ). The states thus plausibly allege that resistance to the contractor mandate will result in
layoffs, further supply-chain issues, and rising prices, all to the detriment of their state
economies. The states likely have a quasi-sovereign interest in defending their economies from
the alleged negative ramifications of the contractor mandate. And, because the contractor
mandate implicates these sovereign and quasi-sovereign interests, the states likely have standing
to contest it.
Constitutional Standing Under Article III
Thus far we have concluded that likely no prudential bar prevents the states from suing
the United States to vindicate their proprietary, sovereign, and quasi-sovereign interests, and that
similarly no such bar likely prevents the sheriffs’ offices from suing in their own proprietary
capacities. Having defined the interests at stake—proprietary, sovereign, and quasi-sovereign—
we now examine whether the plaintiffs have also shown “the irreducible constitutional
minim[a]” to establish Article III standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
The Supreme Court’s modern standing test has coalesced around three elements. First, “the
plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which
is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.”
Id. (cleaned up). “Second, there must be a causal connection between the injury and the conduct
complained of—the injury has to be fairly traceable to the challenged action of the defendant,
and not the result of the independent action of some third party not before the court.” Id.(cleaned up). And “[t]hird, it must be likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” Id. at 561 (cleaned up).
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 19
The government does not contest the latter two elements of causation and redressability.
The contractor mandate may be “fairly trace[d]” to the defendants, as they are the agents of the
United States responsible for devising, promulgating, and potentially enforcing the Guidance.
Id. at 560. Likewise, the government does not seriously contest redressability. If the
government’s enforcement of the contractor mandate is enjoined, then the harms that will
allegedly flow from the contractor mandate will have been prevented, and thus the plaintiffs’
claimed injuries redressed.
The government instead asserts that the plaintiffs have failed to establish imminent
injury. Gov’t Mot. for Stay at 8. But the government is unlikely to succeed on this objection on
appeal. As for constitutional standing in the states’ and sheriffs’ offices’ proprietary capacities,
the plaintiffs have shown that their existing contracts are threatened with modification under the
contractor mandate, that they have a history of bidding on other federal contracts, that federal
contracts provide critical funding for their functions, that they are thus likely to continue bidding
on federal contracts, that such contracts are likely subject to the contractor mandate, and that
resistance to the contractor mandate will likely lead either to the loss of contracts or difficulty
executing such contracts. As for constitutional standing in the states’ sovereign and quasi-
sovereign capacities, the states have made a similarly adequate showing. They allege that many
thousands of citizens throughout their states are employed by federal contractors, that a
substantial portion will likely resist the contractor mandate, that resistance could lead to the loss
of federal contracts or difficulty performing such contracts, and that these facts will harm the
states’ economies. Likewise, they have shown that they have sovereign interests and traditional
prerogatives in regulating public health and compulsory vaccination and that the contractor
mandate invades these prerogatives.
All of this easily suffices to establish imminence. In addition to showing negative effects
on existing contracts, as the plaintiffs have done, they may also establish imminence with “an
adequate showing that sometime in the relatively near future [they] will bid on another
Government contract” that allegedly violates the law. Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 211 (1995). In Adarand itself, the Supreme Court concluded that Adarand had
satisfied the imminence requirement by claiming that it would bid on contracts in the future and
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 20
by showing that it had a demonstrated history of such bidding. Id. at 212; see also Sherbrooke
Turf., Inc. v. Minn. Dep’t of Transp., 345 F.3d 964, 967 (8th Cir. 2003) (explaining that the
plaintiffs had Article III standing because they “ha[d] bid on federally assisted highway projects
in the past, will continue to bid in the future, and suffer competitive harm” from a new federal
policy making it harder to win future contracts). That is precisely the showing the plaintiffs have
made here. Both the plaintiff states and sheriffs’ offices, then, likely have shown that their
claims satisfy Article III’s standing requirements.
The Existence of a Cause of Action
Just because the plaintiffs have standing to sue, of course, does not mean that they have a
cause of action with which they can vindicate their purported interests. See Texas, 809 F.3d at
161 (“[A] state that has standing still must have a cause of action.”). Yet the plaintiffs are likely
to succeed on appeal in their contention that they have a cause of action under the Administrative
Procedure Act (“APA”), and specifically under 5 U.S.C. § 702.9 See Amended Complaint ¶ 79,
R. 22. That provision explains that “[a] person suffering legal wrong because of agency action,
or adversely affected by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof.” 5 U.S.C. § 702. It also waives the federal government’s sovereign
immunity from injunctive relief. Id. For better or worse, the Supreme Court has read this
language as creating a cause of action, rather than merely providing that plaintiffs with
preexisting rights in law or equity may sue agencies to vindicate those rights. See Japan
Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986); see also Caleb Nelson,
“Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703, 708–09 (2019).
And courts have also read § 702 to extend to states as well.10 See Bernhardt, 923 F.3d at 181
(“There is little doubt that a State qualifies as a ‘person’ under the APA.” (citing Md. Dep’t of
Hum. Res. v. Dep’t of Health & Hum. Servs., 763 F.2d 1441, 1445 n.1 (D.C. Cir. 1985))).
9It is not clear from the government’s briefing that it even disputes the existence of a cause of action, at
least insofar as the plaintiffs are found to have standing.
10Specifically, § 702 explains that “person” carries the definition provided in 5 U.S.C. § 551, i.e., “an
individual, partnership, corporation, association, or public or private organization other than an agency.” This
language likely includes a sheriff’s office as well.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 21
The plaintiffs are thus likely to succeed on appeal in their contentions not only that they have
prudential and constitutional standing, but that they also have a concomitant cause of action.
Whether the Property Act Authorizes the Contractor Mandate
At last we turn to the Property Act—the claimed source of authority for the contractor
mandate. Whether the Property Act authorizes the President to impose such a measure (and thus
whether he validly may delegate such authority to an agency) is a question of statutory
interpretation. “The controlling principle,” then, is that we “must give effect to the clear
meaning of statutes as written.” Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002,
1010 (2017) (quoting Est. of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992)). To do
so, we assign each word of the statute “its ‘ordinary, contemporary, common meaning,’” id.(quoting Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207 (1997)), while keeping in mind
that “[s]tatutory language has meaning only in context.” Graham Cnty. Soil & Water Conserv.
Dist. v. United States ex rel. Wilson, 545 U.S. 409, 415 (2005); see also Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 356 (2013) (“Text may not be divorced from context.”).
The government points to two portions of the Property Act that it claims authorize the
contractor mandate: 40 U.S.C. §§ 101 & 121. We reproduce that language in full below because
it is, ironically, likely the best evidence against the government’s position. First comes the Act’s
statement of purpose:
The purpose of this subtitle is to provide the Federal Government with an
economical and efficient system for the following activities:
(1) Procuring and supplying property and nonpersonal services,
and performing related functions including contracting,
inspection, storage, issue, setting specifications, identification
and classification, transportation and traffic management,
establishment of pools or systems for transportation of
Government personnel and property by motor vehicle within
specific areas, management of public utility services, repairing
and converting, establishment of inventory levels,
establishment of forms and procedures, and representation
before federal and state regulatory bodies.
(2) Using available property.
(3) Disposing of surplus property.
(4) Records management.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 22
40 U.S.C. § 101. Section 121(a) then states, “The President may prescribe policies and
directives that the President considers necessary to carry out this subtitle. The policies must be
consistent with this subtitle.” 40 U.S.C. § 121(a).
The government contends that these two statutory provisions “plainly authorize[ ] the
President” to order the contractor mandate—the imposition of an irreversible medical procedure
without precedent in the history of the Property Act’s application. Gov’t Mot. for Stay at 13
(emphasis added). But the government’s argument is unlikely to succeed for two central
reasons: the relevant text, in fact, unambiguously precludes the government’s theory, and, even
if there were some ambiguity, the relevant canons of interpretation would foreclose construing
the ambiguity in the government’s favor. We analyze these points in turn.
By its plain text, the Property Act does not authorize the contractor mandate. The
government itself offers virtually no textual analysis, which is unsurprising given that the text
undermines its position. The government apparently supposes that the statute’s statement-of-
purpose section authorizes the President to procure “economical and efficient” “nonpersonal
services.”11 It then claims that the contractor mandate fulfills that goal, since it allegedly makes
federal contractors more “economical and efficient” by reducing absenteeism. Gov’t Mot. for
Stay at 12. The first issue with the government’s approach is its heavy reliance on the statement
of purpose in § 101. Statements of purpose may be useful in construing enumerated powers later
found in a statute’s operative provisions. Sturgeon v. Frost, 139 S. Ct. 1066, 1086 (2019). But
statements of purpose are not themselves those operative provisions, so they cannot confer
freestanding powers upon the President unbacked by operative language elsewhere in the statute.
Id.; see also Gundy v. United States, 139 S. Ct. 2116, 2127 (2019) (plurality) (describing a
statement of purpose as simply an “appropriate guide to the meaning of the statute’s operative
11The term “nonpersonal services” refers to services that the federal government procures from individuals
who are employees of a federal contractor with which the government has a contract, but who are not themselves
employees of the federal government. Compare 48 C.F.R. § 37.104(a) (“A personal services contract is
characterized by the employer-employee relationship it creates between the Government and the contractor’s
personnel.”), with 48 C.F.R. § 37.101 (“Nonpersonal services contract means a contract under which the personnel
rendering the services are not subject, either by the contract’s terms or by the manner of its administration, to the
supervision and control usually prevailing in relationships between the Government and its employees.”). This
distinction further undercuts the government’s position, given that the reference in § 101 to “nonpersonal services”
implies the federal government’s lack of the heightened degree of “supervision and control” it might exercise over
its own employees.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 23
provisions” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 220 (2012)) (cleaned up). Despite that fact, the government relies almost
exclusively on § 101, leaving unexplained the link between its statement-of-purpose language
and some other operative provision of the Property Act.
But even if we construed the statement of purpose in § 101 as an operative grant of
power, its text does not, in fact, authorize the President to take “necessary measures” to procure
“economical and efficient” “nonpersonal services.” It permits him to employ an “economical
and efficient system” to “procur[e]” those nonpersonal services. 40 U.S.C. § 101 (emphases
added). Webster’s defines those critical terms as follows: “System,” in context, refers to “[a]
formal scheme or method of governing organization, arrangement.” System, Webster’s New
International Dictionary 2562 (2d ed. 1959). And “procure” means “[t]o bring into possession;
to acquire; gain; get; to obtain by any means, as by purchase or loan.” Procure, id. at 1974. The
President thus has statutory authority to implement an “economical and efficient” method of
contracting—a “system,” in other words—to obtain nonpersonal services. But there is no textual
warrant to suggest that after the President or his agents have “economical[ly] and efficient[ly]”
acquired those services that they then may impose whatever medical procedure deemed
“necessary” on the relevant services personnel to make them more “economical and efficient.”
Likewise, we note for ourselves (given the dearth of textual analysis from the
government) that the “performing related functions including contracting” language also cannot
sustain the contractor mandate. The government’s argument seems to implicitly assume that all
the employees subject to the contractor mandate are continuously “contracting” under § 101,12
and thus that the President can impose upon them those measures necessary to make the
12The dissent references this observation to claim that we misunderstand the scope of the Guidance, since
the Guidance “only applies to new contracts or bilateral modifications” rather than to unmodified existing contracts.
See Dissenting Op. at 39. Yet here we are interpreting § 101 of the Property Act—not the Guidance. The relevant
statutory-interpretation question is not which contracts the Guidance affects, but why the President or his agents
have any power under the statute to impose medical procedures on federal contractors. Whether they are working
pursuant to existing contracts, bilaterally modified contracts, or wholly new contracts does not matter to that inquiry.
Even in the context of wholly new contracts, contractors performing such contracts still are not “contracting” within
the meaning of § 101. As explained above, that term refers to a function of the government—not of contractor
employees—and specifically a governmental function of entering contracts—not contractors’ subsequent
performance of them. The dissent never addresses that point other than by reciting the same handful of non-binding
cases that we later distinguish at length. See, e.g., Dissenting Op. at 36 (citing Kahn, 618 F.2d at 789).
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 24
discharge of their “contracting” duties more “economical and efficient.” Yet this view has two
major problems. First, “contracting” within § 101 refers to the government’s initial entry into a
contractual agreement to procure nonpersonal services—not all the subsequent tasks performed
in connection with the contract. See Contracting, 2 The Oxford English Dictionary 914 (1933)
(defining “contracting” as “[e]ntering into a contract or mutual agreement”). If the latter were
true, then why specify all the other “related functions” that § 101 covers, like inspection, storage,
transportation, repairs, regulation of inventory, and so on? Those “functions” will naturally
occur pursuant to or in connection with a contract’s performance, so it seems pure surplusage to
enumerate other such functions if “contracting” really means not only making the agreement, but
all the other activities done pursuant to it. See Direct Mktg. Ass’n v. Brohl, 575 U.S. 1, 13 (2015)
(explaining that courts should avoid “broad construction[s]” that render statutory terms “mere
surplusage”). By contrast, of course, if “contracting” is properly confined to its contextual
meaning—the government’s making of the agreement, rather than all subsequent performance of
it—the surplusage issues disappear. Second and relatedly, § 101 refers to “contracting” as a
“function[ ]” “perform[ed]” by “the Federal Government”—not by the employees of federal
contractors. 40 U.S.C. § 101 (emphasis added). That makes perfect sense if “contracting” in
§ 101 refers to the government’s initial entry into a procurement contract, since the government
there performs the act of contracting—“entering into a contract”—when it signs an agreement to
procure nonpersonal services. But given that statutory text, it makes little sense to construe
“contracting” as likewise covering the subsequent performance of the contract. Those actions
are “perform[ed]” by the private employees of the contractors whom the government procured—
not by the government itself. Id. Section 101 thus authorizes the President to implement
systems making the government’s entry into contracts less duplicative and inefficient, but it does
not authorize him to impose a medical mandate directly upon contractor employees themselves
because he thinks it would enhance their personal productivity.
This interpretation is, moreover, the only one plausible considering the historical
concerns that motivated the passage of the Property Act. The fear shortly after World War II
was not that personnel executing duties under nonpersonal-services contracts were themselves
performing in an uneconomical and inefficient manner, but instead that the manner in which
federal agencies were entering into contracts to procure goods and services was not economical
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 25
and efficient. See S. Rep. 1413 at 2–3.13 Specifically, given the lack of centralized coordination
of procurement efforts, many agencies entered duplicative contracts supplying the same items
and creating a massive post-war surplus. Id.; see also James F. Nagle, A History of Government
Contracting 411 (2d ed. 1999) (describing the wartime “procurement free-for-all” among federal
agencies). The Property Act thus aimed to “integrate[ ] and centraliz[e]” procurement
responsibility to prevent agencies from “unnecessary buying” of “the same articles in the same
markets.” S. Rep. 1413 at 3. Yet no one seems to have envisioned the Property Act as a latent
well of authority to order the medical enhancement of contractor employees to make them more
“economical and efficient.”
So what in the statute does the government claim supports its position? The statutory
language the government relies on the most comes from § 121(a), which explains that “[t]he
President may prescribe policies and directives that the President considers necessary to carry
out this subtitle.” 40 U.S.C. § 121(a). In the government’s view, this broad language permits the
President to direct certain medical decisions for the employees of federal contractors under the
rationale of promoting economical and efficient performance of their duties. But the government
reads too much into § 121(a). The President cannot “carry out this subtitle,” see § 121(a), by
exerting a power the subtitle never actually confers. So while he may enjoy a modest valence of
necessary and proper powers surrounding those powers enumerated in § 101, he cannot wield a
supposedly necessary and proper power without showing how it clearly stems from a power
enumerated. Cf., e.g., McCulloch v. Maryland, 17 U.S. 316, 423 (1819). And that he has not
done with the contractor mandate.
Even if the government had managed to show textual ambiguity, which it likely has not,
related canons of interpretation still would likely foreclose construing such ambiguity in the
government’s favor. Two considerations are of particular concern—the contractor mandate’s
13It is by now axiomatic that “legislative history is not the law” and that it cannot trump unambiguous
statutory text. Azar v. Allina Health Servs., 139 S. Ct. 1804, 1814 (2019) (citing Epic Sys. Corp. v. Lewis, 138 S. Ct.
1612, 1631 (2018)). We include our brief discussion of the Senate Report in a way that Justice Scalia once
advocated—to show that not only does the text preclude the government’s fanciful construction but that, indeed, the
text’s progenitors likewise did not understand themselves to be encoding within it such a novel and sweeping power.
See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring in the judgment) (“I think it
entirely appropriate to consult all public materials, including the background of Rule 609(a)(1) and the legislative
history of its adoption, to verify that what seems to us an unthinkable disposition . . . was indeed unthought of[.]”).
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 26
potentially vast economic significance and its potential implications for “the balance between
federal and state power.” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct.
2485, 2489 (2021). As we have detailed above, the contractor mandate sweeps in at least one-
fifth of the American workforce. The true proportion may be even larger, given that the
contractor mandate defines so capaciously who qualifies as a covered contractor. And the
plaintiffs have shown that the resistance the contractor mandate is sure to encounter will
engender economic disruption throughout the plaintiff states. If an agency really had the power
to promulgate a so-called “Guidance” with such “vast economic and political significance,” we
would need a clear statement from Congress delegating such authority to the executive branch.
Util. Air. Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (“We expect Congress to speak clearly if
it wishes to assign to an agency decisions of vast ‘economic and political significance.’” (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000))); see also Tiger Lily,
LLC v. HUD, 5 F.4th 666, 671 (6th Cir. 2021) (“There is no clear expression of congressional
intent in § 264 to convey such an expansive grant of agency power, and we will not infer one.”).
Yet that is just what we lack—a clear statement from Congress that it intended the President to
use a property-and-services procurement act, for a purpose never-before recognized, to effect
major changes in the administration of public health.
We note that our application of the major-questions canon conforms with our Court’s
recent discussion of the same issue regarding OSHA’s emergency temporary standard (“ETS”).
Our Court there found the canon inapposite for two reasons. First, we concluded that “the
statutory language” in the OSHA statute “unambiguously grant[ed] OSHA authority” for its
emergency standard. In re MCP No. 165, 2021 WL 5989357, at *8 (emphasis added). Here, by
contrast, the Property Act unambiguously excludes the purported power.14 And second, in the
OSHA case we posited that “OSHA’s issuance of the ETS is not an enormous expansion of its
14We thus disagree with the district court that the Property Act likely presents non-delegation concerns.
Those might arise if the Property Act had “merely announce[d] vague aspirations” and then gave “the executive
carte blanche” to do whatever the President saw fit. Gundy, 139 S. Ct. at 2133, 2144 (Gorsuch, J., dissenting). The
Property Act instead grants the President specific, enumerated powers to achieve specific, enumerated goals in
administering the federal procurement system. That the district court raised non-delegation concerns, however, is
understandable. If the government’s interpretation were correct—that the President can do essentially whatever he
wants so long as he determines it necessary to make federal contractors more “economical and efficient”—then that
certainly would present non-delegation concerns.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 27
regulatory authority,” given OSHA’s long history of regulating workplace safety, which has
included “vaccination and medical examinations” to “control[ ] the spread of disease.” Id. at *7.
Here, by contrast, the government has propounded no relevant history showing that it has ever
wielded the Property Act to mandate “vaccination and medical examinations” or to “control[ ]
the spread of disease.” Id. The only examples the government offered were instances in which
the federal government said federal contractors (1) could not discriminate, (2) had to abide by
wage and price controls, (3) had to hang posters advising employees that they could not be
forced to join a union, and (4) had to confirm employees’ immigration status. Gov’t Mot. for
Stay at 11 (citing AFL-CIO v. Kahn, 618 F.2d 784, 790, 785 (D.C. Cir. 1979) (en banc); UAW-
Labor Emp. & Training Corp. v. Chao, 325 F.3d 360, 366–67 (D.C. Cir. 2003); Chamber of
Com. v. Napolitano, 648 F. Supp. 2d 726, 729 (D. Md. 2009)). Each of those requirements has a
“close nexus” to the ordinary hiring, firing, and management of labor. Kahn, 618 F.2d at 792.
But none of those comes even close to the deployment of the Property Act to mandate a medical
procedure for one-fifth (or more) of our workforce. Indeed, the government’s preferred
authority, Kahn, repeatedly stresses the narrowness of its decision to uphold the anti-
discrimination order. See id. at 793 (“[O]ur decision today does not write a blank check for the
President to fill in at his will.”); id. at 797 (Tamm, J., concurring) (“Lest we later be construed as
having broadly interpreted the [Property] Act, I write separately only to emphasize my belief that
the opinion we issue today is a narrow one. It does not allow the President to exercise powers
that reach beyond the Act’s express provisions.”).
It is telling that none of the history from 1949 to present supplied by the government
involves the imposition of a medical procedure upon the federal-contractor workforce under the
rationale of “reducing absenteeism.” The dearth of analogous historical examples is strong
evidence that § 101 does not contain such a power. See In re MCP No. 165, OSHA Interim Final
Rule: COVID-19 Vaccination & Testing, No. 21-7000, __F.4th__, 2021 WL 5914024, at *14
(6th Cir. Dec. 15, 2021) (Sutton, C.J., dissenting from denial of initial hearing en banc) (“A ‘lack
of historical precedent’ tends to be the most ‘telling indication’ that no authority exists.’”
(quoting Free Enter. Fund. v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010))). After
all, the threat of absenteeism is hardly unique to COVID-19. Many diseases, like influenza and
the common cold, have inflicted absenteeism on federal contractors for the last seventy-two
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 28
years. See, e.g., Matthew R. Groenewold et al., Health-Related Workplace Absenteeism Among
Full-Time Workers—United States, 2017–2018 Influenza Season, CDC (July 5, 2019),
cdc.gov/mmwr/volumes/68/wr/mm6826a1.htm (last visited Dec. 23, 2021) (noting that
“absenteeism increased sharply” during the “2017–18 influenza season”). But the government
has cited for us no instance in which the President invoked the Property Act to mandate that
nearly all federal-contractor employees get a flu shot.
Moreover, if the President can order medical interventions in the name of reducing
absenteeism, what is the logical stopping point of that power? Even vaccinated employees may
contract the flu (or COVID-19) at family gatherings, concerts, sporting events, and so on. May
the President, in the name of the Property Act, mandate that covered employees also wear masks
in perpetuity at each of those events to reduce the chances of contracting an airborne
communicable disease and later spreading it to coworkers, thus creating absenteeism? Such off-
the-job conduct very well may threaten to cause on-the-job absenteeism. So why, if the
government’s interpretation is correct, does the Property Act not confer a de facto police power
upon the President to dictate the terms and conditions of one-fifth of our workforce’s lives? The
government has never reckoned with the implications of its position or proposed any limiting
principle to allay our concerns. And those points underscore just how inapposite are the
government’s historical examples—wage and price controls, union posters, confirmation of
immigration status, and anti-discrimination in hiring. Each is a modest, “work-anchored”
measure with an inbuilt limiting principle. In re MCP No. 165, 2021 WL 5914024, at *8
(Sutton, C.J., dissenting from denial of initial hearing en banc). The contractor mandate, by
contrast, requires vaccination everywhere and all the time. It is not “anchored” to the statutory
text, nor is it even “anchored” to the work of federal contractors.
Other tools of construction likewise undercut the government’s view. Consider the
“federalism canon”—the notion that Congress must use “exceedingly clear language if it wishes
to significantly alter the balance between federal and state power.” Ala. Ass’n of Realtors,
141 S. Ct. at 2489. We obviously lack “exceedingly clear language” that the Property Act
supports the contractor mandate, so we focus on why the contractor mandate would also
“significantly alter the balance between federal and state power.” Id. Since the Framing, the
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 29
power to regulate the public health has been “part and parcel” of states’ “traditional police
power.” In re MCP No. 165, 2021 WL 5914024, at *17 (Bush, J., dissenting from denial of
initial hearing en banc). Indeed, “the States, not the Federal Government, are the traditional
source of authority over safety, health, and public welfare.” Id. at *6 (Sutton, C.J., dissenting
from denial of initial hearing en banc).
The Supreme Court has recognized this principle time after time. See Jacobson v.
Massachusetts, 194 U.S. 11, 25 (1905) (calling it a “settled principle[ ]” that states enjoy a police
power to promulgate “legislative enactment[s to] protect the public health and the public
safety”); Chicago, B. & Q. Ry. Co. v. Illinois, 200 U.S. 561, 592 (1906) (“[T]he police power of
a State embraces . . . regulations designed to promote the public health.”); Berman v. Parker,
348 U.S. 26, 32 (1954) (describing regulation of “public health” as a “traditional application of
the police power”). The Court has also reiterated this point twice “in the specific context of
compulsory vaccination.” In re MCP No. 165, 2021 WL 5914024, at *17 (Bush, J., dissenting
from denial of initial hearing en banc) (citing Jacobson, 197 U.S. at 24–25; Zucht v. King,
260 U.S. 174, 176 (1922)); see also Zucht, 260 U.S. at 176 (describing it as “within the police
power of a State to provide for compulsory vaccination” (citing Jacobson, 197 U.S. at 24–25)).
What the contractor mandate seeks to do, in effect, is to transfer this traditional
prerogative from the states to the federal government under the guise of a measure to make
federal contracting more “economical and efficient.” But see Tiger Lily, LLC, 5 F.4th at 671
(declining to permit an agency “to interpret a statute to push the limit of congressional
authority . . . when ‘the administrative interpretation [would] alter[ ] the federal-state framework
by permitting federal encroachment upon a traditional state power’” (quoting Solid Waste
Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172–73 (2001))). The
government protests that “federal contracts are not an area traditionally reserved to the states,”
and thus, apparently, that states may not complain when the federal government uses contracting
as a naked pretext15 to invade traditional state prerogatives.16 See Gov’t Mot. for Stay at 18.
15The federal government’s actions are, of course, simply a pretext to increase vaccination, as its own
documents confirm. See, e.g., Off. Fed. Procurement Pol’y, Memorandum for Chief Acquisition Officers 3 (Sept.
30, 2021) (“To maximize the goal of getting more people vaccinated”—rather than to enhance the goal of efficient
procurement—“the Task Force strongly encourages agencies to apply the requirements of its guidance broadly[.]”)
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 30
In making such an argument, the government frames the issue at the wrong level of generality.
States may have no power to dictate what and how much of something the federal government
may buy. See, e.g., Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940). But they certainly
have a traditional interest in regulating public health and, specifically, in determining whether to
impose compulsory vaccination on the public at large. See In re MCP No. 165,
2021 WL 5914024, at *6 (Sutton, C.J., dissenting from denial of initial hearing en banc) (“[T]he
only Supreme Court cases that permitted a government to impose a vaccination mandate on
individuals arose from the States, not the National Government.” (citing Jacobson, 197 U.S. at
11; Zucht, 260 U.S. at 174)). And, by extension, they may validly complain when the federal
government seeks to usurp those roles by doing something that it has no traditional prerogative
to do—deploy the Property Act to mandate an irreversible medical procedure.17
We thus conclude that the federal government is unlikely to prevail on its argument that
the Property Act authorizes imposition of the contractor mandate.18 We turn now to the
(emphasis added)); see Dep’t of Com. v. New York, 139 S. Ct. 2551, 2575 (2019) (“[W]e are ‘not required to exhibit
a naiveté from which ordinary citizens are free.’” (quoting United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir.
1977))).
16The dissent faults us for examining “the words of the executive branch” to discern that branch’s
motivations, relying primarily on a partial dissent from a Supreme Court opinion in which a majority actually
endorsed such an inquiry. See Dissenting Op. at 37–38 (citing Dep’t of Commerce, 139 S. Ct. at 2576 (Thomas, J.,
concurring in part and dissenting in part)). But see Dep’t of Commerce, 139 S. Ct. at 2575–76; id. at 2584 (Breyer,
J., concurring in part and dissenting in part, joined by Ginsburg, J., Sotomayor, J., and Kagan, J.). Dissents may
state relevant points but, of course, do not bind us, especially when a clear majority of the Supreme Court has
adopted a different rule of decision. In any event, the pretextual nature of the contractor mandate is not outcome-
determinative here, and nowhere do we claim that it is. As the dissent acknowledges, what really matters “is the
lawful scope of [the] president’s authority.” Dissenting Op. at 38. And so, because the “lawful scope” of his
authority under the Property Act likely does not include the contractor mandate, we deny the government’s
requested stay.
17The dissent claims that the contractor mandate has no federalism implications because it does not
“intrud[e] upon an area traditionally left to the states”—an area that it narrowly defines as federal contracts.
Dissenting Op. at 35. The dissent can only frame the mandate so narrowly by simply ignoring its real-world effects,
which would include a de facto authority to dictate public health measures for sizeable portions of the plaintiff
states’ populations. Yet as the Supreme Court recently reminded us, agencies cannot skirt the federalism
implications of their actions by pretending that “decades-old statute[s]” somehow “indirectly” grant them novel
powers to intrude into “particular domain[s] of state law.” Ala. Ass’n of Realtors, 141 S. Ct. at 2486, 2488–89.
18Having concluded that the President likely lacked statutory authority to promulgate the contractor
mandate, we decline to consider whether the contractor mandate is also arbitrary and capricious or violates the
Competition in Contracting Act. See 41 U.S.C. § 253.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 31
remaining factors relevant to the stay—irreparable injury, harms to the non-movants, and the
public interest.
Factor 2: Whether the Federal Government Will Suffer Irreparable Injury Absent a Stay
The government protests that absent a stay, it will incur the irreparable injuries of
absenteeism and productivity loss. Gov’t Mot. for Stay at 19–20. We are not persuaded by the
government’s claims of “irreparable injury” for several reasons. First, COVID-19 vaccines have
been generally available in the United States—and the present administration has been in
office—for nearly a year. Yet the contractor mandate did not emerge until September 2021. See
Guidance, supra, at 1. The government then delayed the compliance deadline from December 8,
2021, to January 18, 2022. See 86 Fed. Reg. at 63,423. The government’s actions undercut its
representations of great urgency in implementation of the contractor mandate.
Second, we note the additional tension between the government’s conduct regarding the
contractor mandate versus OSHA’s vaccine-or-mask standard. The government claims that
implementing the contractor mandate’s vaccine requirement is crucial to avoiding irreparable
injury. Yet it has delayed formal enforcement of OSHA’s similar standard until February 9,
2022, despite our Court recently dissolving the Fifth Circuit’s stay of its enforcement. See Dep’t
of Labor, Statement from the U.S. Department of Labor on the 6th Circuit Court of Appeals
Dissolving the Stay of OSHA Emergency Temporary Standard on Vaccination and Testing (Dec.
18, 2021), https://www.dol.gov/newsroom/releases/osha/osha20211218 (last visited Dec. 22,
2021) (explaining that “[t]o account for any uncertainty created by the stay, OSHA is exercising
enforcement discretion” to decline to “issue citations for noncompliance with the standard’s
testing requirements before February 9” so long as employers take reasonable steps to comply on
their own). The government has failed to explain why it must immediately implement the
contractor mandate to avoid irreparable injury yet considers it permissible to voluntarily delay
enforcement of OSHA’s laxer vaccines-or-mask requirement, which regulates basically the same
conduct, for a month and a half.
Last, we note from a practical perspective that the contractor mandate is already subject
to a nationwide injunction out of the Southern District of Georgia that the Eleventh Circuit
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 32
recently declined to stay. See Georgia v. Biden, No. 1:21-cv-163, __ F. Supp. 3d __, 2021 WL
5779939 (S.D. Ga. Dec. 7, 2021), motion to stay preliminary injunction denied, No. 21-14269
(11th Cir. Dec. 17, 2021) (holding that the government failed to establish that it would be
“irreparably injured absent a stay”). The government is correct that the Eleventh Circuit’s
decision does not affect the reviewability of the underlying decree in this case, but it does make
our decision here somewhat academic. See Gov’t Reply at 11. For even if we thought the
district court’s injunction an abuse of discretion, our dissolution of it could not revive the
contractor mandate and prevent the government’s allegedly irreparable injuries. We thus
conclude that the government has not made a strong showing on the second stay factor.
Factor 3: Whether a Stay Would Harm the States and Sheriffs’ Offices
A stay of the injunction, by contrast, would harm the plaintiff states and sheriffs’ offices.
Two discernible theories of injury are relevant. First, the contractor mandate will deter the
plaintiffs from bidding on or renewing covered contracts that they otherwise would have bid on
or renewed but for the contractor mandate. A stay of the injunction pending appeal would thus
deter plaintiffs from entering into economically valuable federal contracts.19 And second, if the
19The dissent claims that the federal government has “clearly demonstrated irreparable harm” with its
assertion that, given sundry “productivity losses,” it will lose “approximately two billion dollars per month that the
injunction is in place.” See Dissenting Op. at 38. But the dissent then says that the monetary losses the states will
incur from compliance with the mandate are “not ‘irreparable’” because “they are ‘fully compensable by monetary
damages.’” Id. (quoting Overstreet v. Lexington-Fayette Urb. Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002)). This
line of reasoning is flawed on at least four levels. First, whatever one’s view of the merits of the contractor
mandate, it simply cannot be the case that monetary losses are reparable when suffered by the states, yet somehow
become “irreparable” when suffered by the federal government. Second, who exactly will the states sue to obtain
such “monetary damages”? Certainly not the federal government, at least to the extent the states continue to rely on
the APA’s cause of action, since the APA does not waive federal sovereign immunity from money-damages claims.
See Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 425 (6th Cir. 2016). The dissent appears to envision
the states bringing an independent action under the Tucker Act, 28 U.S.C. § 1491, in which they attempt to quantify
the economic harm the contractor mandate imposes and then seek to recover concomitant damages. But the Tucker
Act itself creates no cause of action, so under what source of law would the states even sue? See Bowen v.
Massachusetts, 487 U.S. 879, 905 n.42 (1988). Third, even if the dissent had a solution to those problems, some of
the intangible harms asserted here—invasions of state sovereignty and coerced compliance with irreversible
vaccinations—likely cannot be economically quantified, and thus cannot be monetarily redressed. See id.(questioning whether a “naked money judgment against the United States” can be an “adequate substitute for
prospective relief” given the “complex ongoing relationship” between states and the federal government). And
fourth, the dissent subtly lessens the burden upon the federal government to obtain a stay by misstating the third stay
factor. See Dissenting Op. at 38. The government is required to disprove that imposition of a stay would injure the
states substantially—not irreparably. See Nken, 556 U.S. at 426. That is a more difficult showing, since it requires
disproving a broader class of harms. In other words, a harm to the states from the stay that is substantial, even if
potentially compensable and thus technically reparable, still suffices to defeat the government’s stay request.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 33
contractor mandate were to become enforceable during the appeal, covered employees who
chose to comply with the mandate rather than lose their jobs would incur the irrecoverable
compliance cost of a coerced vaccination that could not be reversed if the contractor mandate
were later held invalid. See BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021)
(quoting Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016)).
Factor 4: Where the Public Interest Lies
The last stay factor, the public interest, is equivocal at best. The federal government
claims that the public interest lies in increasing vaccinations, reducing absenteeism, and
decreasing hospital visits from COVID-19. Those are valuable goals no doubt. But the states
raise countervailing concerns that suggest denial of a stay is in the public interest. For instance,
despite the government’s asserted interest in stable supply-chains, the contractor mandate itself
may engender serious resistance and thus serious economic disruption. Employees of
contractors who choose to comply rather than resist may be compelled to submit to a potentially
illegal mandate and suffer irrecoverable compliance costs. And as we have explained before, the
public’s true interest lies in the correct application of the law. See Coal. to Def. Affirmative
Action v. Granholm, 473 F.3d 237, 252 (6th Cir. 2005) (“‘[T]he public interest lies in the correct
application’ of the federal constitutional and statutory provisions upon which the claimants have
brought this claim[.]” (citation omitted)). In any event, the public-interest factor does not
sufficiently outweigh all the other defects with the government’s case to warrant a stay.
V.
The government has not made the “strong showing” required to justify the grant of a stay.
Nken, 556 U.S. at 426. Most concerning, the Property Act likely confers no authority upon the
President to order the imposition of the contractor mandate. For that reason and the others
explained above, we DENY the government’s requested stay.20
20The separate motion to file an amicus brief on behalf of the American Medical Association and fourteen
other organizations is GRANTED.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 34
_____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_____________________________________________________
COLE, Circuit Judge, concurring in part, dissenting in part. I disagree with the
majority’s conclusion that both the states and the sheriffs’ offices have standing. I also disagree
with the conclusion that the President “re-envisioned” the Federal Property and Administrative
Services Act (“Property Act”) to take the actions contemplated by Executive Order No. 14042.
Maj. Op. 2. I recognize that the Eleventh Circuit recently declined to stay the national injunction
imposed by Georgia v. Biden, --- F. Supp. 3d ---, No. 1:21-CV-163, 2021 WL 5779939, (S.D.
Ga. Dec. 7, 2021). See Georgia v. Biden, No. 21-14269, slip op. at 1 (11th Cir. Dec. 17, 2021).
Even still, I find that the government has made a “strong showing” in this case that it will prevail
on the merits and has established that it will suffer irreparable harm without a stay. See Nken v.
Holder, 556 U.S. 418, 426 (2009). For these reasons, I dissent.
As to standing, because “the Plaintiffs did not provide an example of a new contract that
is subject to the mandate,” they lack standing. Kentucky v. Biden, No. 3:21-CV-00055-GFVT,
2021 WL 5587446, at *3 (E.D. Ky. Nov. 30, 2021) (“Kentucky”). While the majority notes that
the government has requested modification of at least one contract, there is no harm in asking
that a contract be modified. For a modification to go into effect, the agreement must be
bilateral—that is, both the government and the contracting party must agree to it. For contracts
that are subject to renewal, the contract modification language could be different by the renewal
date, like any other condition to the contract. Any purported reliance interest is not sufficient to
constitute a harm here, any more than it is when Congress leverages the power of the purse to
encourage states to comply with federal law. See South Dakota v. Dole, 483 U.S. 203, 207–08
(1987). As to future contracts, at no point do the states provide any legal support for their
contention that failure to bid on a contract or failure to receive federal funds is a cognizable
harm. It is a potential contracting party’s choice not to contract with the federal government—
the government’s mandate does not prevent states from bidding or otherwise contracting. See
United States v. Wunderlich, 342 U.S. 98, 156 (1951) (noting that federal contractors are “not
compelled or coerced into” contracting with the government).
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 35
Nor do the states have standing in a sovereign or quasi-sovereign capacity. The majority
contends that the states have “plausibly shown that the contractor mandates threatens to
damage . . . [their] economies” due to individual employees’ refusal to comply with the mandate.
Maj. Op. 17. Any contention that the parties will be harmed by failing to comply with the
mandate, however, is wholly speculative. According to the Centers for Disease Control and
Prevention (“CDC”), 85.5% of individuals over the age of 18 have received at least one dose of
the vaccine, while 72.8% are fully vaccinated. See CDC, COVID-19 Vaccination in the United
States, COVID Data Tracker, (Jan. 3, 2022, 6:00 AM), https://covid.cdc.gov/covid-data-
tracker/#vaccinations_vacc-total-admin-rate-total. If federal contractors constitute one fifth of
the American workforce, Kentucky, 2021 WL 5587446, at *1, the executive order affects, at
most, five percent of the workforce—a much smaller scale than the majority and the states
implicate. The states have also failed to provide evidence of what percentage of their workforce
are federal contractors, so the number is likely exaggerated further. In addition, while 70% of
unvaccinated workers say they would leave their job to avoid a vaccine requirement, in practice
only five percent of workers have done so. KFF, KFF Covid-19 Vaccine Monitor: October
2021, (Oct. 28, 2021), https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-
vaccine-monitor-october-2021/. Therefore, the evidence indicates that most contractors are
either already vaccinated or would choose to get vaccinated rather than quit their jobs. Thus,
given that there is no harm, neither the states nor the sheriffs’ offices have standing in their
proprietary capacities.
Further, nothing in the contractor mandate threatens to override state policies, nor is the
federal government intruding upon an area traditionally left up to the states. This guidance
solely applies to future or bilaterally modified federal contracts—an area of governance that has
never been, nor could be, left to the states. To the extent that states seek to vindicate the interests
of the alleged persons who would leave their job rather than be vaccinated, this is—as the
majority notes—impermissible litigation on behalf of third parties. See Massachusetts v. Mellon,
262 U.S. 447, 485–86 (1923). Without standing, the lawsuit cannot proceed, and the injunction
should not have been issued.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 36
Even if the plaintiffs had standing, a stay would be appropriate. As a reminder, we must
consider: “(1) whether the stay applicant has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Nken, 556 U.S. at 426 (quoting Hilton v. Braunskill, 481 U.S.
770, 776 (1987)).
The government has demonstrated that it is likely to succeed on the merits. The Property
Act is a procurement statute. It was enacted “to provide the Federal Government with an
economical and efficient system for the following activities: (1) [p]rocuring and supplying
property and nonpersonal services, and performing related functions . . . [,] (2) [u]sing available
property[,] (3) [d]isposing of surplus property[, and] (4) [r]ecords management.” 40 U.S.C.
§ 101. The Property Act further provides that “[t]he President may prescribe policies and
directives that the President considers necessary to carry out this subtitle[,]” so long as the
policies are “consistent” with it. 40 U.S.C. § 121(a). “‘Economy’ and ‘efficiency’ are not
narrow terms; they encompass those factors like price, quality, suitability, and availability of
goods or services that are involved in all acquisition decisions.” Am. Fed’n of Lab. & Cong. of
Indus. Orgs. v. Kahn, 618 F.2d 784, 789 (D.C. Cir. 1979). Courts have interpreted the act to
encompass policies and directives that have a “sufficiently close nexus to the values of providing
the government an economical and efficient system for . . . procurement and supply.” UAW-Lab.
Emp. & Training Corp. v. Chao, 325 F.3d 360, 366 (D.C. Cir. 2003) (citation and quotations
omitted).
Courts have recognized that the Property Act gives the President “necessary flexibility
and broad-ranging authority.” Id. (quotations omitted). Congress clearly intended to grant the
President “direct and broad-ranging authority over those larger administrative and management
issues that involve the Government as a whole.” Kahn, 618 F.2d at 789. Congress also intended
for that authority to “be used in order to achieve a flexible management system capable of
making sophisticated judgments in pursuit of economy and efficiency.” Id. Accordingly, the
President and Congress have “frequently imposed on the procurement process social and
economic programs somewhat removed from a strict view of efficiency and economy.” Id. at
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 37
789–90. For this reason, courts have found a sufficiently close nexus between presidential action
and economical procurement systems even when the connection is attenuated, or where
arguments that the action arguably impairs economic interests could be advanced. Chao,
325 F.3d at 366–67.
Given this history, Executive Order 14042 is consistent with the provisions of the
Property Act. The express language of the Order promotes economy and efficiency in federal
contracting by ensuring federal contractors implement adequate COVID-19 safeguards to protect
their workers and reduce the spread of COVID-19, “which will decrease worker absence, reduce
labor costs, and improve the efficiency of contractors and subcontractors at sites where they are
performing work for the Federal Government.” Exec. Order No. 14,042, 86 Fed. Reg. 50,985(Sept. 9, 2021). That the first goal—decreasing the spread of COVID-19—happens to also be a
valid public health objective does not mean that it intrudes upon state liberties or exceeds the
President’s authority under the Property Act. See Kahn, 618 F.2d at 790 (executive order
requiring federal contractors to meet antidiscrimination provisions helps establish an economical
system for procurement). The health and safety of the government’s workforce amid a global
and worsening pandemic has direct and tangible effects on the economy, and, by extension, on
the government’s ability to procure and supply services. The fact that vaccination mandates—
whether for COVID-19, influenza, or other, vaccine-preventable diseases—are commonplace
and mandated in workplaces and schools around the county plainly demonstrates that such
mandates have a “close nexus” to the ordinary hiring, firing, and management of labor. To find
otherwise prioritizes a state’s right to implement a hypothetical public health measure over the
federal government’s right to control the terms and conditions of its contracts. Put simply, it
prioritizes a hypothetical individual’s decision to work as an unvaccinated federal contractor
over the federal government’s right to control “administrative and management issues.” Kahn,
618 F.2d at 789.
Although the majority contends that the Order is merely pretext to increase vaccination
rates, it relies not on the language of the Order, but rather on the words of the executive branch
in doing so. Courts have been historically reluctant “to consider the President’s motivation[s] in
issuing [an] Executive Order.” Chamber of Com. of U.S. v. Reich, 74 F.3d 1322, 1335 (D.C. Cir.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 38
1996); see also Trump v. Hawaii, 138 S. Ct. 2392, 2417–19 (2018). And with good reason:
allowing “political opponents of executive actions to generate controversy with accusations of
pretext, deceit, and illicit motives . . . could lead judicial review of administrative proceedings to
devolve into an endless morass of discovery and policy disputes[.]” Dep’t of Com. v. New York,
139 S. Ct. 2551, 2575 (2019) (Thomas, J., concurring in part and dissenting in part). As the
Supreme Court has repeatedly stressed, outside of a narrow line of animus cases, see Romer v.
Evans, 517 U.S. 620, 632, 635 (1996), what matters is the lawful scope of a president’s
authority, not the statements they make. Trump, 138 S. Ct. 2418; see also id. at 2424 (“[T]he
statements . . . of Government officials are not subject to judicial scrutiny[.]”) (Kennedy, J.,
concurring). The challenged executive order easily falls within the scope of President Biden’s
authority.
As to the remaining factors, the federal government has clearly demonstrated irreparable
harm in the form of significant productivity losses not only from leave and health care costs for
workers who are sick, quarantined, and unable to perform due to COVID-19, but also scheduling
delays and reduced performance quality—by its estimate approximately two billion dollars per
month that the injunction is in place. In contrast, the states have not identified any irreparable
harm. Ordinary compliance costs are not “irreparable”—they are “fully compensable by
monetary damages.” Overstreet v. Lexington-Fayette Urb. Cnty. Gov’t, 305 F.3d 566, 578 (6th
Cir. 2002) (citing Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992)); see also
Wilson ex rel. Est. of Wilson v. United States, 405 F.3d 1002, 1009 (Fed. Cir. 2005) (“A claim
may be asserted under the Tucker Act [28 U.S.C. § 1491(a)(1)] ‘for recovery of monies that the
government has required to be paid contrary to law.’” (quoting Aerolineas Argentinas v. United
States, 77 F.3d 1564, 1572 (Fed. Cir. 1996))); 28 U.S.C. § 1491(b)(1)–(2) (permitting bid
protests where an “interested party” objects to “any alleged violation of a statute or regulation in
connection with a procurement or a proposed procurement” provided that monetary relief is
“limited to bid preparation and proposal costs”). Any future federal contractors subject to the
executive order will be aware of the vaccine requirement before bidding, thereby agreeing to be
vaccinated—or provide a valid exemption—by soliciting and entering the contract.
No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 39
Contrary to the states’ speculative contention, which the majority adopts, there is no
evidence that contractors will leave their positions to avoid complying with the mandate. The
Government does not “assume that all the employees subject to the contractor mandate are
continuously ‘contracting’ under § 101.” Maj. Op. 23. The mandate explicitly only applies to
new contracts or bilateral modifications. Therefore, the only way any current federal contractor
would become subject to the mandate is if an employer agreed to the bilateral modification—and
the states and the sheriffs’ offices are under no obligation to do. There is also no evidence that
those who leave will disrupt workplace operations, because the actual scope of the mandate is
smaller than it seems, as discussed previously.
Because “[t]he first two factors of the traditional standard are the most critical” when
assessing whether to stay a court’s order, Nken, 556 U.S. at 434, I would grant the government’s
motion to stay the district court’s injunction pending appeal.
Accordingly, I dissent.