Brnovich 34 Main TRO

Case 2:21-cv-01568-MTL Document 34 Filed 10/22/21 Page 1 of 45
1 MARK BRNOVICH Wilenchik & Bartness PC

ATTORNEY GENERAL
2 (Firm State Bar No. 14000)
3
Joseph A. Kanefield (No. 15838) Jack Wilenchik
4 Brunn (Beau) W. Roysden III (No. 28698) The Wilenchik & Bartness Building
5 Drew C. Ensign (No. 25463) 2810 North Third Street
James K. Rogers (No. 27287) Phoenix, AZ 85004
6 2005 N. Central Ave Phone (602) 606-2816
Phoenix, AZ 85004-1592
7 Phone: (602) 542-8540 [email protected]
[email protected]
8 [email protected] Attorney for Plaintiff John Doe
[email protected]
9 [email protected]
10 Attorneys for Plaintiffs Mark Brnovich and
the State of Arizona
11
UNITED STATES DISTRICT COURT
12
DISTRICT OF ARIZONA
13
14 Mark Brnovich, in his official capacity as No. 2:21-cv-01568-MTL
Attorney General of Arizona; and the State
15 of Arizona; and John Doe, RENEWED MOTION FOR A
Plaintiffs, TEMPORARY RESTRAINING
16
v. ORDER AND PRELIMINARY
17 Joseph R. Biden in his official capacity as INJUNCTION
18 President of the United States; Alejandro
Mayorkas in his official capacity as
19 Secretary of Homeland Security; United
20 States Department of Homeland Security;
Troy Miller in his official capacity as
21 Senior Official Performing the Duties of
22 the Commissioner of U.S. Customs and
Border Protection; and Tae Johnson in his
23 official capacity as Senior Official
24 Performing the Duties of Director of U.S.
Immigration and Customs Enforcement;
25 United States Office of Personnel
Management; Kiran Ahuja in her official
26
capacity as director of the Office of
27 Personnel Management and as co-chair of
the Safer Federal Workforce Task Force;
28
General Services Administration; Robin
1 Carnahan in her official capacity as

administrator of the General Services
2 Administration and as co-chair of the
3 Safer Federal Workforce Task Force;
Office of Management and Budget;
4 Shalanda Young in her official capacity
5 as Acting Director of the Office of
Management and Budget and as a
6 member of the Safer Federal Workforce
Task Force; Safer Federal Workforce
7
Task Force; Jeffrey Zients in his official
8 capacity as co-chair of the Safer Federal
Workforce Task Force and COVID-19
9
Response Coordinator.
10 Defendants.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
1 TABLE OF CONTENTS
2 INTRODUCTION ............................................................................................................... 1
3 FACTUAL BACKGROUND ............................................................................................. 3
4 LEGAL STANDARD ......................................................................................................... 7
5 ARGUMENT ...................................................................................................................... 8
6 I. Plaintiffs Are Likely To Prevail On The Merits Of Their Claims Against the
Contractor Mandate......................................................................................................... 8
7
A. The Contactor Mandate Is Unconstitutional ................................................. 8
8
1. The Contractor Mandate Violates The Tenth Amendment ................. 8
9
2. The Contractor Mandate Violates The Equal Protection Clause ........ 9
10
B. The Contractor Mandate Violates The Procurement Act............................ 12
11
1. There Is No Nexus Between The Contractor Mandate And
12 Procurement ....................................................................................... 14
13 2. Defendants Lack Authority To Impose The Contractor Mandate
Under The Major Questions Doctrine ............................................... 17
14
3. The Contractor Mandate Is Unlawful Because It Conflicts With
15 Anther Federal Statute ....................................................................... 18
16 C. The Contractor Mandate Is Unlawful Under The Procurement Policy Act
..................................................................................................................... 18
17
D. The Contractor Mandate Is Unlawful Under The Emergency Use
18 Authorization Statute................................................................................... 20
19 1. Legislative History And Agency Interpretation Establish That The

EUA Statute Creates A Right To Refuse EUA Products .................. 22
20 2. Canons Of Construction Make Clear That The EUA Statute
21 Creates A Right To Refuse EUA Products ....................................... 24
22 II. Plaintiffs Are Likely To Prevail On The Merits Of Their Claims Against the
Employee Mandate ....................................................................................................... 24
23 A. The Employee Mandate Violates The Equal Protection Clause And The
24 EUA Statute................................................................................................. 24
B. The Federal Employee Mandate Violates Employees’ Constitutional
25 Right To Bodily Integrity And To Refuse Medical Procedures ................. 25
26 1. The Employee Mandate Is Subject To Strict Scrutiny ...................... 26
27 2. Jacobson Does Not Command A Different Result ........................... 27
28 III. All The Other Requirements For An Injunction Are Met ........................... 28
i
1 A. Plaintiffs Will Suffer Irreparable Harm If An Injunction Is Not Granted .. 28

B. The Balance Of Harms And Public Interest Support A Preliminary
2 Injunction .................................................................................................... 30
3 IV. Plaintiffs Request a Temporary Restraining Order ..................................... 33
4
CONCLUSION ................................................................................................................. 34
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
1 TABLE OF AUTHORITIES
2 Cases
3 AFL-CIO v. Kahn,
4 618 F.2d 784 (D.C. Cir. 1979) ...................................................................................... 15
5 Alabama Ass’n of Realtors v. HHS,
6 141 S. Ct. 2485 (2021) ...................................................................................... 12, 13, 14
7 Alliance for the Wild Rockies v. Cottrell,
8 632 F.3d 1127 (9th Cir. 2011) ......................................................................................... 8
9 Andrus v. Glover Constr. Co.,
10 446 U.S. 608 (1980) ...................................................................................................... 24
11 Application of Griffiths,
12 413 U.S. 717 (1973) ...................................................................................................... 10
13 Arizona Dream Act Coal. v. Brewer,
14 757 F.3d 1053 (9th Cir. 2014) ....................................................................................... 29
15 Arizona Recovery House Ass’n v. Arizona Dep’t of Health Services,
16 462 F. Supp. 3d 990 (D. Ariz. 2020) ............................................................................. 29
17 Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr,
18 518 U.S. 668 (1996) ...................................................................................................... 26
19 Benson v. Terhune,
20 304 F.3d 874 (9th Cir. 2002) ......................................................................................... 25
21 Bernal v. Fainter,
22 467 U.S. 216 (1984). ..................................................................................................... 26
23 Bolling v. Sharpe,
24 347 U.S. 497 (1954) ...................................................................................................... 10
25 Buck v. Bell,
26 274 U.S. 200 (1927) ...................................................................................................... 28
27 California v. Azar,
28 911 F.3d 558 (9th Cir. 2018) ......................................................................................... 29
iii
1 Chamber of Commerce of U.S. v. Reich,

2 74 F.3d 1322 (D.C. Cir. 1996) ................................................................................ 13, 18
3 Christensen v. Harris Cty.,
4 529 U.S. 576 (2000) ...................................................................................................... 24
5 Chrysler Corp. v. Brown,
6 441 U.S. 281 (1979) ................................................................................................ 14, 15
7 City & County of San Francisco v. United States Citizenship & Immigration Services,
8 981 F.3d 742 (9th Cir. 2020) ......................................................................................... 29
9 Coons v. Lew,
10 762 F.3d 891 (9th Cir. 2014) ......................................................................................... 26
11 Cruzan by Cruzan v. Dir., Missouri Dep’t of Health,
12 497 U.S. 261 (1990) ...................................................................................................... 25
13 Cty. of Butler v. Wolf,
14 486 F. Supp. 3d 883 (W.D. Pa. 2020) ........................................................................... 27
15 Doe #1 v. Trump,
16 957 F.3d 1050 (9th Cir. 2020) ................................................................................. 30, 31
17 Doe #1 v. Trump,
18 984 F.3d 848 (9th Cir. 2020) ......................................................................................... 30
19 Doe v. Rumsfeld,
20 341 F. Supp. 2d 1 (D.D.C. 2004) .................................................................................. 23
21 East Bay Sanctuary Covenant v. Biden,
22 993 F.3d 640 (9th Cir. 2021) ..................................................................................... 3, 29
23 FDA v. Brown & Williamson Tobacco Corp.,
24 529 U.S. 120 (2000) ...................................................................................................... 17
25 Fields v. Palmdale Sch. Dist.,
26 427 F.3d 1197 (9th Cir. 2005) ....................................................................................... 26
27 Franceschi v. Yee,
28 887 F.3d 927 (9th Cir. 2018) ......................................................................................... 26
iv
1 Graham v. Richardson,
2 403 U.S. 365 (1971) ...................................................................................................... 10
3 Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No.
4 70 of Alameda Cnty.,
5 415 U.S. 423 (1974) ...................................................................................................... 33
6 Jacobson v. Commonwealth of Massachusetts,
7 197 U.S. 11 (1905) ........................................................................................................ 27
8 Jennings v. Rodriguez,
9 138 S.Ct. 830 (2018) ..................................................................................................... 24
10 John Doe No. 1 v. Rumsfeld,
11 No. CIV.A. 03-707 (EGS), 2005 WL 774857 (D.D.C. Feb. 6, 2005) .......................... 23
12 King v. Burwell,
13 576 U.S. 473 (2015) ...................................................................................................... 17
14 Koontz v. St. Johns River Water Mgmt. Dist.,
15 570 U.S. 595 (2013) ...................................................................................................... 25
16 League of Women Voters of United States v. Newby,
17 838 F.3d 1 (D.C. Cir. 2016) ............................................................................................ 3
18 Liberty Mut. Ins. Co. v. Friedman,
19 639 F.2d 164 (4th Cir. 1981) ............................................................................. 15, 16, 17
20 Lochner v. New York,
21 198 U.S. 45 (1905) ........................................................................................................ 27
22 Mississippi Band of Choctaw Indians v. Holyfield,
23 490 U.S. 30 (1989) ........................................................................................................ 19
24 Moore v. East Cleveland,
25 431 U.S. 494 (1977) ...................................................................................................... 26
26 Munitions Carriers Conf., Inc. v. United States,
27 932 F. Supp. 334 (D.D.C. 1996) ................................................................................... 18
28 N.Y. Progress & Prot. PAC v. Walsh,
v
1 733 F.3d 483 (2d Cir. 2013) .......................................................................................... 31

2 Perry v. Sindermann,
3 408 U.S. 593 (1972) ...................................................................................................... 25
4 Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill,
5 130 F.3d 432 (9th Cir. 1997) ......................................................................................... 25
6 Printz v. United States,
7 521 U.S. 898 (1997) ........................................................................................................ 9
8 Richards v. United States,
9 369 U.S. 1 (1962) .......................................................................................................... 19
10 Roman Cath. Diocese of Brooklyn v. Cuomo,
11 141 S. Ct. 63 (2020) ................................................................................................ 25, 28
12 Sessions v. Morales-Santana,
13 137 S. Ct. 1678 (2017) .................................................................................................. 10
14 Spears v. Arizona Bd. of Regents,
15 372 F. Supp. 3d 893 (D. Ariz. 2019) ............................................................................. 33
16 Thunder Basin Coal Co. v. Reich,
17 510 U.S. 200 (1994) ...................................................................................................... 29
18 TRW Inc. v. Andrews,
19 534 U.S. 19 (2001) ........................................................................................................ 24
20 United States v. Alabama,
21 691 F.3d 1269 (11th Cir. 2012) ....................................................................................... 3
22 United States v. Constantine,
23 296 U.S. 287 (1935). ....................................................................................................... 9
24 United States v. Texas,
25 No. 21A85 (U.S. Oct. 18, 2021) ...................................................................................... 3
26 Univ. of Tex. v. Camenisch,
27 451 U.S. 390 (1981) .................................................................................................. 7, 30
28 Utility Air Regulatory Group v. EPA,
vi
1 573 U.S. 302 (2014) ...................................................................................................... 12

2 Washington v. Glucksberg,
3 521 U.S. 702 (1997) ...................................................................................................... 25
4 Washington v. Harper,
5 494 U.S. 210 (1990) ...................................................................................................... 26
6 Whitman v. Am. Trucking Associations,
7 531 U.S. 457 (2001) ........................................................................................................ 1
8 Winter v. NRDC,
9 555 U.S. 7 (2008) ............................................................................................................ 8
10 Zucht v. King,
11 260 U.S. 174 (1922) ........................................................................................................ 9
12
Statutes
13
5 U.S.C. § 553(b)(3)(B) ....................................................................................................... 6
14
10 U.S.C. § 1107 ............................................................................................................... 23
15
10 U.S.C. § 1107a........................................................................................................ 22, 23
16
21 U.S.C. § 360bbb-3 .............................................................................. 2, 8, 18, 20, 21, 23
17
40 U.S.C. § 101 ............................................................................................................. 8, 12
18
40 U.S.C. § 121 ............................................................................................................. 8, 12
19
41 U.S.C. § 1707 ..................................................................................................... 8, 18, 19
20
Other Authorities
21
Black’s Law Dictionary (11th ed. 2019) ........................................................................... 19
22
FDA, Emergency Use Authorization of Medical Products and Related Authorities:
23
Guidance for Industry and Other Stakeholders, OMB Control No. 0910-0595, 2017 WL
24
345587 ........................................................................................................................... 22
25
FDA, Guidance Emergency Use Authorization of Medical Products, 2007 WL 2319112.
26
....................................................................................................................................... 22
27
H.R. Conf. Rep. No. 108-354 (2003) ................................................................................ 22
28
Jen Psaki, White House Press Briefing (Sept. 10, 2021), ................................................ 11
vii
1 Jen Psaki, White House Press Briefing (Sept. 20, 2021). ................................................. 11
2 The Federalist No. 45 (James Madison) .............................................................................. 9
3
Regulations
4
70 Fed. Reg. 5452 (Feb. 2, 2005) ...................................................................................... 22
5
86 Fed. Reg. 50,989 (Sept. 14, 2021) .................................................................................. 6
6
86 Fed. Reg. 53,691 (Sept. 28, 2021) ...................................................................... 6, 16, 20
7
86 Fed. Reg. 7045 (Jan. 25, 2021)....................................................................................... 4
8
21 C.F.R. § 50.25............................................................................................................... 23
9
48 C.F.R. § 1.501-1 ........................................................................................................... 19
10
48 C.F.R. § 1.501-3(b)....................................................................................................... 19
11
Constitutional Provisions
12
U.S. Const. amend. X .......................................................................................................... 9
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
viii
1 INTRODUCTION
2 The State of Arizona, its Attorney General, and John Doe (collectively, the “State”)
3 seek a temporary restraining order (“TRO”) and preliminary injunction against two
4 unprecedented vaccination mandates. Those mandates—one relating to federal contractors
5 and subcontractors (“Contractor Mandate”) and another relating to all federal employees
6 (“Employee Mandate”)—transgress numerous constitutional and statutory requirements.
7 They are, in other words, patently unlawful. But if they are permitted to go into effect,
8 contractors and employees will rapidly be forced to comply with these illegal mandates
9 and this Court’s power to prevent harms resulting from those illegal mandates will rapidly
10 diminish into near-nothingness. A TRO is thus appropriate to prevent irreversible harm
11 while the State’s request for a preliminary injunction is decided. And such a preliminary
12 injunction is warranted here, since the mandates violate both constitutional and statutory
13 provisions, will cause irreparable harm, and the balance of harms and public interest favor
14 enjoining these illegal mandates.
15 The Contractor Mandate is unlawful both procedurally and substantively. The
16 President’s power over contractors is derived from the federal procurement statutes that
17 only permit him to impose obligations through notice-and-comment procedures—which
18 Defendants did not even attempt to comply with. Moreover, under the Major Questions
19 Doctrine and related case law, Defendants lack statutory authority to enact the sweeping
20 social changes they seek for which they have no explicit statutory mandate. Instead,
21 Defendants’ mandates essentially assert far-reaching authority based upon finding hidden
22 “elephants in mouseholes.” Whitman v. Am. Trucking Associations, 531 U.S. 457, 468
23 (2001). But that is precisely how Congress does not convey unheard-of powers. Defendants
24 thus do not have delegated authority to impose these unprecedented mandates, the likes of
25 which no prior Administration has ever attempted. Moreover, while the President has
26 power to employ procurement authority to improve efficiency of federal contracting, there
27 is every reason to believe that these mandates will lead to inefficiency: particularly as they
28 are likely to provoke employee resignations that will increase expenses, particularly in the
1
1 current tight labor market already undergoing a “Great Resignation.” See, e.g., First
2 Amended Complaint (“FAC”) ¶¶83-84.
3 Both the Contractor and Employee Mandates also violate the Emergency Use
4 Authorization (“EUA”) statute, which expressly requires disclosure of “the option to accept
5 or refuse administration” of a product approved only under an EUA. 21 U.S.C. § 360bbb-
6 3(e)(1)(A)(ii)(III) (emphasis added). But the whole point of the Mandates is to deny any
7 such “option” to those governed by them. Notably, only the Pfizer vaccine has received
8 FDA approval, and none of the stock of it in the U.S. is actually the FDA-approved version
9 (and instead is entirely under the EUA label subject to the EUA-mandated conference of
10 choice). Defendants’ mandates thus violate the EUA statute.
11 Both of these mandates also violate the Equal Protection Clause, because
12 Defendants have issued them as part of a policy of unconstitutional favoritism towards
13 non-citizens not lawfully present in the U.S. (hereinafter, “unauthorized aliens”).
14 Defendants have expressly refused to impose any vaccination mandates on unauthorized
15 aliens, instead offering them a completely uncoerced choice as to whether to accept
16 vaccination or not. But they have no equivalent respect for the rights of U.S. citizens and
17 lawful permanent residents, who are the target of numerous such mandates.
18 Defendants have been completely forthright about this favoritism and their
19 inexplicable preference for those entering the U.S. illegally over lawful residents and
20 entrants. Defendants have announced, for example, that “[f]oreign nationals flying to the
21 U.S. will be required to be fully vaccinated.” Rogers Decl. Ex. A. But for those illegally
22 crossing the northern and southern borders, they will not be subject to any vaccination
23 mandates even when apprehended by Defendants and set to be released into the United
24 States. Id. In other words, the only individuals whose personal autonomy is respected by
25 Defendants are those that have elected to break U.S. immigration laws. U.S. citizens, lawful
26 permanent residents, and those lawfully entering the U.S. (including through international
27 flights) enjoy no equivalent respect. That favoritism is unconstitutional.
28 The State, its citizens, and John Doe will also suffer irreparable harm absent a TRO
2
1 and preliminary injunction. The harms at issue here cannot be remedied by money
2 damages, which are not available in any event against Federal Defendants due to sovereign
3 immunity. See East Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 677 (9th Cir. 2021)
4 (irrecoverable harms are irreparable harms). Nor does this Court have the medical power
5 to remedy any potential side effects caused by vaccines taken purely as a result of
6 compliance with these illegal mandates. If such harms are permitted to occur, they will not
7 be remediable from subsequent judicial actions. Nor are the violations of constitutional
8 rights here remediable by monetary damages.
9 The balance of harms and public interest also favor issuance of a TRO and
10 preliminary injunction. As the United States itself told the Supreme Court just this week,
11 “there is ‘no harm’ from the ‘nonenforcement of invalid legislation.’” Application of the
12 United States, United States v. Texas, No. 21A85 (U.S. Oct. 18, 2021) (attached here to as
13 Rogers Decl. Ex. B.) (quoting United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir.
14 2012)). And the “public interest [is served] in having governmental agencies abide by the
15 federal laws that govern their existence and operations.” Texas v. Biden, 10 F.4th 538, 559
16 (5th Cir. 2021); accord League of Women Voters of United States v. Newby, 838 F.3d 1,
17 12 (D.C. Cir. 2016).
18 Because the Contractor and Employee Mandates will soon compel individuals to
19 comply with those mandates or suffer grievous financial harm, this Court should
20 immediately issue a TRO while awaiting Defendants’ response (which should be
21 expedited), so that it can decide Plaintiffs’ request for a preliminary injunction without
22 enormous harms occurring in the interim, which it would lack the power to remedy. Put
23 simply, absent expeditious action by this Court, Defendants will be able to effectuate the
24 vast majority of their aims—despite the unlawfulness of their Mandates—simply by
25 default. This Court should grant the State’s motion to prevent such harms from occurring.
26 FACTUAL BACKGROUND
27 On September 9, 2021, President Biden gave remarks at the White House
28 announcing plans for COVID-19 vaccination mandates for federal workers and certain
3
1 businesses, including healthcare facilities receiving federal funding, and all businesses
2 with more than 99 employees. Rogers Decl. Ex. C. In that announcement, President Biden
3 announced several categories of vaccination requirements, including those for (1) federal
4 contractors, (2) federal employees, (3) employers with 100 or more employees, and
5 (4) health care providers. This suit challenges the first and second mandates because these
6 are the two about to take effect.
7 Federal Contractor Mandate
8 On September 9, 2021, President Biden signed Executive Order (“EO”) 14042,
9 imposing on federal contractors “COVID [s]afety [p]rotocols” to be established and issued
10 by the Safer Federal Workforce Task Force (“SFWTF”)1 by September 24, 2021. On
11 September 24, 2021 the SFWTF released on its website guidance to federal agencies for
12 implementing Defendants’ vaccine mandate on contractors and subcontractors (the
13 “Contractor Mandate”). This guidance was never published to the Federal Register for
14 public comment. Attached to the First Amended Complaint as Exhibit 1 is a copy of that
15 guidance. Among other things, the guidance included the following:
16  A deadline of December 8, 2021 for “covered contractor employees” to be fully
17 vaccinated.
18  A deadline of November 24, 2021 for employees of contractors or subcontractors
19 to receive their final vaccination (or only vaccination, in the case of the Johnson &
20 Johnson vaccine), because the guidance defines “fully vaccinated” to mean two
21 weeks after receiving the requisite number of doses of an approved COVID-19
22 vaccine. The guidance defines “fully vaccinated” to include vaccines approved
23 only by Emergency Use Authorization (“EUA”).
24
1
25 President Biden established the SFWTF on January 20, 2021 through Executive Order
13,991 (86 Fed. Reg. 7045 (Jan. 25, 2021)). He tasked the SFWTF with “provid[ing]
26 ongoing guidance to heads of agencies on the operation of the Federal Government, the
safety of its employees, and the continuity of Government functions during the COVID–
27 19 pandemic.” The SFWTF is headed by three co-chairs: (1) the Director of OPM; (2) the
Administrator of GSA; and (3) the COVID–19 Response Coordinator. The Director of
28 OPM is also a member of the SFWTF. The EO also required that GSA “provide funding
and administrative support for the” SFWTF. 85 Fed. Reg. at 7046.
4
1  A definition of the term “covered contractor employee” to “include[] employees of

2 covered contractors who are not themselves working on or in connection with a
3 covered contract” if they are working at the same location, thus imposing vaccine
4 requirements on employees of contractors and subcontractors who are not even
5 working on federal contracts.
6  A requirement that the Federal Acquisition Regulatory Council (“FAR Council”)
7 conduct rulemaking to amend the Federal Acquisition Regulation (“FAR”) to
8 impose the Contractor Mandate.
9  A deadline of October 8, 2021 for the FAR Council to develop a contract clause to
10 implement the Contractor Mandate for agencies to include in contracts. The
11 guidance also instructs the FAR Council to “recommend that agencies exercise
12 their authority to deviate from the FAR” and use the vaccination mandate clause in
13 contracts even before the FAR is amended.
14  A deadline of October 15, 2021 for agencies to include that contractual clause in
15 solicitations.
16  A deadline of November 14, 2021 after which awarded contracts must include that
17 contractual clause. For contracts entered into between October 15 and November
18 14 and for which the solicitation was issued before October 15, the guidance states
19 that agencies are encouraged to include the clause, but are not required to do so.
20  A requirement that, for contracts awarded “prior to October 15 and where
21 performance is ongoing,” the vaccine mandate clause “must be incorporated at the
22 point at which an option is exercised or an extension is made.”
23  Requirements that the Contractor Mandate must apply even to: 1) persons who
24 have already been infected with COVID-19; 2) workplace locations that are
25 outdoors; and 3) contractor employees who are working remotely full time.
26  A statement asserting that the guidance supersedes legal requirements in States or
27 localities that prohibit vaccine mandates.
28 On September 28, 2021, Shalanda Young, the Acting Director of the Office of
5
1 Management and Budget, published a notice in the Federal Register in which Ms. Young
2 made the conclusory contention that “compliance with COVID–19-related safety
3 protocols improves economy and efficiency by reducing absenteeism and decreasing labor
4 costs for contractors and subcontractors working on or in connection with a Federal
5 Government contract.” 86 Fed. Reg. 53,691 (Sept. 28, 2021). She further stated that she
6 had “determined that compliance by Federal contractors and subcontractors with the
7 COVID–19-workplace safety protocols detailed in [the SFWTF] guidance will improve
8 economy and efficiency by reducing absenteeism and decreasing labor costs for
9 contractors and subcontractors working on or in connection with a Federal Government
10 contract.” Id.
11 Ms. Young did not cite to any information or evidence that would support the
12 claims in her determination, nor did she explain how she reached her conclusion.
13 Furthermore, Ms. Young’s notice was not subject to public commenting. Ms. Young’s
14 determination did not claim there were any urgent and compelling circumstances that
15 warranted foregoing notice-and-comment procedures, and her Federal Register notice did
16 not include a 41 U.S.C. § 1707(d) waiver of the Procurement Policy Act requirement that
17 a procurement policy may not take effect until 60 days after it is published for public
18 comment in the Federal Register. Nor did Ms. Young’s notice invoke the good cause
19 exception (5 U.S.C. § 553(b)(3)(B)) to the APA’s notice-and-comment requirements.
20 Federal authorities have already communicated with some Arizona State agencies,
21 including public universities, claiming that the agency is subject to the Contractor
22 Mandate and must impose vaccine mandates on their employees. This creates a significant
23 conflict, as mandates are illegal under State law. See FAC ¶57.
24 Federal Employee Mandate.
25 Also on September 9, 2021, President Biden signed EO 14043, which required that
26 “[e]ach agency shall implement ... a program to require COVID-19 vaccination for all of
27 its Federal employees.” The EO also required the SFWTF to issue guidance for agencies
28 by September 16, 2021. Exec. Order No. 14043, 86 Fed. Reg. 50,989, “Requiring
6
1 Coronavirus Disease 2019 Vaccination for Federal Employees” (Sept. 14, 2021).
2 On September 16, 2021 the SFWTF updated the “Frequently Asked Questions”
3 (“FAQ”) section of its website, in an attempt to fulfill the EO’s guidance requirement.
4 Among other things, the updated FAQ included the following:
5  A deadline of November 22, 2021 for federal employees to be “fully vaccinated”
6 and also after which new federal employees would need to be fully vaccinated
7 before starting work.
8  A deadline of November 8, 2021 for employees to receive their final vaccination
9 (or only vaccination, in the case of the Johnson & Johnson vaccine), because the
10 FAQ defines “fully vaccinated” to mean “2 weeks after [employees] have received
11 the requisite number of doses of a[n approved] COVID-19 vaccine.” The FAQ
12 defines “fully vaccinated” as including vaccines approved only by EUA.
13  Imposition of the Employee Mandate 1) for federal employees who are working
14 remotely full-time and thus do not pose any risk of exposing other federal
15 employees to COVID-19 and 2) for federal employees who have already been
16 infected with COVID-19 and thus already have natural immunity.
17  A warning to agencies to allow exemptions from the Employee Mandate only “in
18 limited circumstances where the law requires an exception.” (emphasis added).
19 Attached to the First Amended Complaint as Exhibit 2 is a copy of the updated
20 FAQ. The SFWTF has never issued official, formal guidance to agencies; has never
21 published its guidance in the Federal Register; and has not followed any notice-and-
22 comment procedures before issuing its guidance.
23 LEGAL STANDARD
24 Plaintiffs seek a preliminary injunction under Rule of Civil Procedure 65(a) for the
25 purpose of “preserv[ing] the relative positions of the parties until a trial on the merits can
26 be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). As the moving party, a
27 plaintiff can obtain a preliminary injunction by showing that (1) it is likely to succeed on
28 the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief,
7
1 (3) the balance of equities tips in [its] favor, and (4) an injunction is in the public interest.
2 Winter v. NRDC, 555 U.S. 7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632
3 F.3d 1127, 1131 (9th Cir. 2011).
4 ARGUMENT
5 I. Plaintiffs Are Likely To Prevail On The Merits Of Their Claims Against the
Contractor Mandate
6
7 The Contractor Mandate violates both the Constitution and federal statutory law.
8 Specifically, it is unconstitutional because 1) it violates the Tenth Amendment and
9 principles of federalism because it attempts to usurp the States’ police powers and 2) it
10 violates the Equal Protection Clause by conferring preferential treatment upon
11 unauthorized aliens as a favored class. The mandate is also unlawful because it violates
12 1) the Federal Property and Administrative Services Act (the “Procurement Act”), 40
13 U.S.C. §§ 101 and 121; 2) the Office of Federal Procurement Policy Act (“Procurement
14 Policy Act”), 41 U.S.C. § 1707; and 3) the Federal Food, Drug, and Cosmetic Act, 21
15 U.S.C. § 360bbb-3 (“the EUA statute”).
16 A. The Contactor Mandate Is Unconstitutional
17 The Contractor Mandate is unconstitutional, and the Plaintiffs are likely to succeed
18 on the merits of their constitutional challenge to it.
19 In our federal republic, powers are divided between the States and the Federal
20 government. The Federal government possesses only those powers specifically enumerated
21 in the Constitution. And at all levels of government, powers are further limited by the
22 natural rights retained by the people.
23 The Contractor Mandate is unconstitutional because it violates the Tenth
24 Amendment and the Equal Protection Clause.
25 1. The Contractor Mandate Violates The Tenth Amendment
26 The Contractor Mandate violates the Tenth Amendment and principles of

27 federalism. The Tenth Amendment states that “[t]he powers not delegated to the United
28 States by the Constitution, nor prohibited by it to the States, are reserved to the States
8
1 respectively, or to the people.” U.S. Const. amend. X.

2 Under principles of federalism, the federal government has only enumerated powers
3 and not the sort of general police power reserved solely to the States under the Tenth
4 Amendment. “Residual state sovereignty was also implicit, of course, in the Constitution's
5 conferral upon Congress of not all governmental powers, but only discrete, enumerated
6 ones, Art. I, § 8, which implication was rendered express by the Tenth Amendment's
7 assertion that ‘[t]he powers not delegated to the United States by the Constitution, nor
8 prohibited by it to the States, are reserved to the States respectively, or to the people.’”
9 Printz v. United States, 521 U.S. 898, 919 (1997).
10 As James Madison explained, “[t]he powers reserved to the several States will
11 extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties,
12 and properties of the people, and the internal order, improvement, and prosperity of the
13 State.” The Federalist No. 45 (James Madison). Thus, the “police power” is “inherent in
14 the states” and is “reserved from the grant of powers to the federal government by the
15 Constitution.” United States v. Constantine, 296 U.S. 287, 295–96 (1935).
16 It is well-settled that the power to impose vaccine mandates, to the extent that such
17 power exists at all, is part of the police powers reserved to the States. See, e.g., Zucht v.
18 King, 260 U.S. 174, 176 (1922) (“[I]t is within the police power of a state to provide for
19 compulsory vaccination” (emphasis added)). Thus, Defendants’ attempts to impose the
20 Contractor Mandate on private companies is an unconstitutional usurpation of the States’
21 police powers and Plaintiffs are likely to succeed on the merits of their federalism challenge
22 to the mandate.
23 2. The Contractor Mandate Violates The Equal Protection Clause
24
Defendants’ Contractor Mandate (and Employee Mandate as well) would require
25
vaccination of U.S. citizens (and also lawful permanent residents and other aliens lawfully
26
employed by qualifying employers), but not of unauthorized aliens. This violates the Equal
27
Protection Clause because it confers preferential treatment upon unauthorized aliens as a
28
favored class without a valid basis to do so.
9
1 The Supreme Court established in Bolling v. Sharpe, 347 U.S. 497, 498 (1954) that
2 the Equal Protection Clause of the Fourteenth Amendment is incorporated against the
3 federal government through the Fifth Amendment’s Due Process Clause. See also Sessions
4 v. Morales-Santana, 137 S. Ct. 1678, 1686 n.1 (2017) (the Supreme Court’s “approach to
5 Fifth Amendment equal protection claims has always been precisely the same as to equal
6 protection claims under the Fourteenth Amendment”).
7 Aliens and citizens are protected classes in equal protection jurisprudence,
8 triggering strict scrutiny when the government has a differential policy based on such
9 classifications. See Graham v. Richardson, 403 U.S. 365, 371, 375–376 (1971);
10 Application of Griffiths, 413 U.S. 717, 721 (1973). Generally, prior case law in this area
11 has involved discrimination against aliens as a class. But the reverse preference in favor of
12 unauthorized aliens is just as constitutionally suspect.
13 This unlawful discrimination is occurring at the applicable decision-making level
14 here. All of the decisions regarding the vaccination mandates and non-mandates have been
15 made by the President himself and the Executive Office of the President (“EOP”), with
16 individual agencies then given commands to implement their respective mandates/non-
17 mandates. And the President/EOP have (1) expressly decided to impose a variety of
18 vaccination mandates that will fall overwhelmingly or exclusively upon U.S. citizens,
19 lawful permanent residents, and aliens otherwise lawfully present in the United States and
20 (2) simultaneously decided to decline to impose any vaccination mandates upon migrants
21 unlawfully entering the United States even when in U.S. custody. The EOP has been
22 explicit about its refusal to impose mandates on unauthorized aliens and instead giving
23 them a true choice about whether to accept the U.S. government’s offer of vaccination. For
24 example, during a September 10, 2021 press conference, White House Press Secretary Jen
25 Psaki had the following exchange with a reporter:
26 Q Okay. And then why is it that you’re trying to require anybody with a
27 job or anybody who goes to school to get the COVID-19 vaccine, but you’re
not requiring that of migrants that continue walking across the southern
28 border into the country?
MS. PSAKI: Well, look, our objective is to get as many people vaccinated
10
1 across the country as humanly possible. And so the President’s

announcement yesterday was an effort to empower businesses, to give
2 businesses the tools to protect their workforces. That’s exactly what we did.
3 But certainly we want everybody to get vaccinated. And more people who
are vaccinated, whether they are migrants or whether they are workers,
4 protects more people in the United States.
5 Q But it’s a requirement for people at a business with more than 100 people,
but it’s not a requirement for migrants at the southern border. Why?
6 MS. PSAKI: That’s correct.2
7 At a press briefing on September 20, the issue came up again. Psaki announced that
8 “in early November, we’ll be putting in place strict protocols to prevent the spread of
9 COVID-19 from passengers flying internationally into the United States by requiring that
10 adult foreign nationals traveling to the United States be fully vaccinated.” 3 When Psaki
11 was questioned about the different policy for unauthorized aliens crossing the border
12 illegally, Psaki said “[a]s individuals come across the border and — they are both assessed
13 for whether they have any symptoms. If they have symptoms, they are — the intention is
14 for them to be quarantined; that is our process. They’re not intending to stay here for a
15 lengthy period of time. I don’t think it’s the same thing.” 4 Psaki never explained that
16 putative difference, particularly given that most international air travelers are temporary
17 visitors who are also “not intending to stay here for a lengthy period of time.”
18 U.S. citizens, lawful permanent residents, lawfully present migrants, and
19 unauthorized aliens are all similarly situated for purposes of the relevant decisions here.
20 Coronavirus is an equal opportunity infector that is completely indifferent to the
21 nationality/citizenship status of any human being. It will happily infect them all.
22 Unauthorized aliens do not spread coronavirus any better or worse than those lawfully
23 present in the United States. But the Biden Administration has unlawfully exempted
24
2
Jen Psaki, White House Press Briefing (Sept. 10, 2021),
25 https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/10/press-briefing-by-
press-secretary-jen-psaki-september-10-2021/ (accessed Oct. 20, 2021)
26 3
Jen Psaki, White House Press Briefing (Sept. 20, 2021),
27 https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/20/press-briefing-by-
press-secretary-jen-psaki-september-20-2021/ (accessed Oct. 20, 2021); see also Rogers
28 Decl. Ex. A.
4
Id.
11
1 authorized aliens from all of its vaccination mandates, while imposing an array of
2 unprecedented, overlapping, and extensive mandates that fall almost exclusively upon U.S.
3 citizens and lawful permanent residents. This preference for unauthorized aliens violates
4 the Equal Protection Clause.
5 There is no justification under a strict scrutiny standard that could possibly justify
6 vaccine mandates for citizens but not for aliens. And even if a rational basis standard
7 applied, there still would be no valid justification for affording more favorable treatment
8 to aliens than citizens. Plaintiffs are thus likely to succeed on the merits of their Equal
9 Protection challenge to the Contractor and Employee Mandates.
10 B. The Contractor Mandate Violates The Procurement Act
11 EO 14042 cites the Procurement Act as the basis for its authority for the Contractor
12 Mandate. But the Procurement Act confers no such authority. Congress adopted the Act in
13 1949 with the stated statutory purpose “to provide the Federal Government with an
14 economical and efficient system for” procurement. 40 U.S.C. § 101. The Procurement Act
15 states that “[t]he President may prescribe policies and directives that the President
16 considers necessary to carry out” the Procurement Act, but requires that the President’s
17 “policies must be consistent with” the Act. 40 U.S.C. § 121(a).
18 Defendants’ attempts to use the Procurement Act as justification for the Contractor
19 Mandate is akin to the Federal government’s recent attempt at using the Public Health
20 Safety Act as justification for a far-reaching nationwide eviction moratorium. That attempt
21 was swiftly struck down by the Supreme Court, which held that the text of the statute
22 clearly did not grant such sweeping authority to the government and that “[e]ven if the text
23 were ambiguous, the sheer scope of the CDC’s claimed authority ... would counsel against
24 the Government’s interpretation. We expect Congress to speak clearly when authorizing
25 an agency to exercise powers of ‘vast economic and political significance.’” Alabama
26 Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021). (quoting Utility Air Regulatory
27 Group v. EPA, 573 U.S. 302, 324 (2014)). Particularly relevant was that “[t]he moratorium
28 intrude[d] into an area that is the particular domain of state law.” Id. That is just so here,
12
1 intruding upon the State’s traditional police powers over public health issues. The Supreme
2 Court’s “precedents require Congress to enact exceedingly clear language if it wishes to
3 significantly alter the balance between federal and state power and the power of the
4 Government over private property.” Id. The Procurement Act has no such language.
5 Congress enacted the Procurement Act to ensure the efficient purchase of goods and
6 services, not to empower the Executive Branch to engage in far-reaching public health
7 programs that are either unrelated to—or outright contrary to—the explicit efficiency
8 rationale. “The text of the Procurement Act and its legislative history indicate that Congress
9 was troubled by the absence of central management that could coordinate the entire
10 government's procurement activities in an efficient and economical manner. The legislative
11 history is replete with references for the need to have an ‘efficient, businesslike system of
12 property management.’” Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1333 (D.C.
13 Cir. 1996) (citation omitted)). The Procurement Act does not give the President “unlimited
14 authority to make decisions he believes will likely result in savings to the government....
15 The procurement power must be exercised consistently with the structure and purposes of
16 the statute that delegates that power.” Id. at 1330–31 (citation omitted).
17 Federal government spending typically accounts for about a quarter of the U.S.
18 economy. Since the COVID-19 pandemic, that share has likely increased substantially. See
19 FAC ¶85. Congress did not enact the Procurement Act to give the President sweeping
20 power to issue decrees over one-quarter of the economy, like a Politburo ordering citizens
21 to obey or starve. Nowhere in the Procurement Act is there any mention of vaccination, or
22 even of a disease prevention objective of any kind. The Contractor Mandate could only be
23 held permissible under an extraordinarily expansive interpretation of the Procurement Act
24 that would give the government “a breathtaking amount of authority” over the economy,
25 thus making it “hard to see what measures this interpretation would place outside
26 [Defendants’] reach.” Alabama Realtors, 141 S. Ct. at 2489.
27 Just as in Alabama Realtors, the statute confers no such authority. The Procurement
28 Act is “a wafer-thin reed on which to rest such sweeping power.” Id. “[O]ur system does
13
1 not permit agencies to act unlawfully even in pursuit of desirable ends,” even in the face
2 of “a strong [public] interest in combating the spread of the COVID–19 Delta variant.”
3 Id.at 2490.
4 1. There Is No Nexus Between The Contractor Mandate And
Procurement
5
6 The Supreme Court’s test for whether Executive Branch procurement requirements
7 are permissible under the Procurement Act is whether there is a “nexus” with “some
8 delegation of the requisite legislative authority by Congress ... reasonably within the
9 contemplation of that grant of authority.” Chrysler Corp. v. Brown, 441 U.S. 281, 304, 306
10 (1979). In Chrysler, a corporation sued to prevent disclosure of information it had given to
11 the government about its employment of women and minorities. The disclosures were
12 required by regulations adopted by the Department of Labor pursuant to an EO that claimed
13 to be authorized by civil rights statutes and by the Procurement Act. The Court struck down
14 the regulations because there was no “nexus” between the regulations and statutes
15 involved. The Court explained that “it is clear that when it enacted these statutes, Congress
16 was not concerned with public disclosure of trade secrets or confidential business
17 information, and, unless we were to hold that any federal statute that implies some authority
18 to collect information must grant legislative authority to disclose that information to the
19 public, it is simply not possible to find in these statutes a delegation of the disclosure
20 authority asserted by the” government. Id. at 306 (emphasis in original).
21 The Court went on to explain that for there to be a valid “grant of legislative
22 authority to a federal agency” to promulgate regulations, “the reviewing court [must]
23 reasonably be able to conclude that the grant of authority contemplates the regulations
24 issued.” Id. at 308. Even when the D.C. Circuit upheld a broad Carter Administration
25 mandate imposing wage and price controls under the Procurement Act, it emphasized “the
26 importance to our ruling today of the nexus between the wage and price standards and
27 likely savings to the Government. As is clear from the terms and history of the
28 [Procurement Act] and from experience with its implementation, our decision today does
14
1 not write a blank check for the President to fill in at his will.” AFL-CIO v. Kahn, 618 F.2d
2 784, 793 (D.C. Cir. 1979) (en banc) (emphasis added).
3 Particularly relevant to the Chrysler Court’s determination that there was no
4 “nexus” to the Procurement Act was that “nowhere in the Act is there a specific reference
5 to employment discrimination.” Chrysler, 441 U.S. at 306 n.34. So too here—nowhere in
6 the Procurement Act is there a specific reference to vaccination or even to disease
7 prevention more generally. There is thus no authority to impose far-reaching mandates on
8 millions of individuals5 in an attempt to achieve broad public health social objectives.
9 The Contractor Mandate is on even shakier ground in its extension to
10 subcontractors, as subcontractors have “no direct connection to federal procurement.”
11 Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164, 171 (4th Cir. 1981). At issue in Liberty
12 Mutual was EO 11246, which imposed affirmative action racial mandates on government
13 contractors and subcontractors. The Social Security Administration claimed that Liberty
14 Mutual Insurance Company was subject to the EO’s requirements because it provided
15 workers’ compensation insurance to federal contractors and thus qualified as a
16 subcontractor under Department of Labor regulations adopted pursuant to the EO.
17 Applying the Supreme Court’s holding in Chrysler, the Fourth Circuit rejected the
18 government’s argument that the Procurement Act conferred on the President the authority
19 to impose affirmative action mandates on subcontractors, holding “that application of the
20 Executive Order to plaintiffs is not reasonably within the contemplation of any statutory
21 grant of authority.” Liberty Mut. Ins. Co., 639 F.2d at 168.
22 The Contractor Mandate as applied to direct contractors also has no nexus with any
23 delegation of legislative authority by Congress. Defendants claim as their purported
24 justification for the Contractor Mandates that COVID-19 vaccination of contractors and
25 subcontractors will reduce “absenteeism and decreas[e] labor costs for contractors and
26 subcontractors working on or in connection with a Federal Government contract.” 86 Fed.
27
28 5
Rogers Decl. Ex. D (characterizing EO 14042 as plan “[r]equiring [v]accinations for ...
[m]illions of [c]ontractors”)
15
1 Reg. 53,691, 53,692 (Sept. 28, 2021). Defendants, however, have made no administrative
2 “findings that suggest what percentage of the total price of federal contracts may be
3 attributed” to the effect of COVID-19 vaccination on reduced absenteeism and labor costs.
4 Liberty Mut. Ins. Co., 639 F.2d at 171. Indeed, Defendants have not even made any specific
5 administrative findings at all about how COVID-19 vaccination might affect absenteeism
6 and labor costs, let alone whether any costs would translate into changed Federal
7 government contract costs.
8 Apart from making a bare allegation unsupported by any facts, Defendants failed to
9 even make specific administrative findings that establish whether COVID-19 vaccination
10 would increase or decrease absenteeism and labor costs. When the Executive Branch tries
11 to impose procurement requirements targeted at achieving “social objectives,” yet fails to
12 make specific quantitative factual findings that demonstrate a nexus with procurement, “the
13 connection ... is simply too attenuated to allow a reviewing court to find the requisite
14 connection between procurement costs and social objectives,” and the procurement policy
15 is unlawful under the Procurement Act. Id.
16 The heavy-handed and illogical requirements of the SFWTF contractor guidance
17 illustrate just how attenuated the connection is between the Contractor Mandate and
18 economy and efficiency in procurement. For example, the SFWTF contractor guidance
19 requires contractors to impose vaccine mandates on employees who are not even working
20 on federal contracts. Rogers Decl. Ex. H at 3-4 (“[t]his includes employees of covered
21 contractors who are not themselves working on or in connection with a covered contract”).
22 The SFWTF contractor guidance also explicitly states that its vaccine mandate applies in a
23 number of situations where solid science, 6 basic logic,7 and even the CDC’s own guidance,8
24
6
Rogers Decl. Ex. E (“This study demonstrated that natural immunity confers longer
25 lasting and stronger protection against infection, symptomatic disease and hospitalization
caused by the Delta variant of SARS-CoV-2, compared to the BNT162b2 two-dose
26
vaccine-induced immunity.”); Rogers Decl. Ex. F (“Here, we evaluate 254 COVID-19
27 patients longitudinally up to 8 months and find durable broad-based immune responses.”).
7
It is impossible for employees working 100% remotely to infect co-workers.
28 8
E.g., Rogers Decl. Ex. G (“COVID-19 spreads more easily indoors than outdoors.... You
are less likely to be exposed to COVID-19 when you [a]ttend outdoor activities.”);
16
1 has established that the risk of COVID-19 infection or transmission to other contractor
2 employees is exceedingly low, or even impossible, such as to 1) persons who have already
3 been infected with COVID-19 and thus have natural immunity, id. at 10; 2) workplace
4 locations that are outdoors, id.; and 3) contractor employees who are working remotely full
5 time, id. at 11.
6 As in Liberty Mutual, so too here: the connection between COVID-19 vaccination
7 rates “and any increase in the cost of federal contracts that could be attributed to”
8 vaccination “is simply too attenuated,” and there is thus no nexus with economic and
9 efficient procurement. Liberty Mut. Ins. Co, 639 F.2d at 171. The Procurement Act is about
10 ensuring the government’s efficient and economic acquisition of goods and services, not
11 about achieving broad social public health objectives. The Procurement Act does not confer
12 on Defendants the power to impose COVID-19 vaccination mandates on contractors and
13 subcontractors. Accordingly, the Contractor Mandate is unlawful.
14 2. Defendants Lack Authority To Impose The Contractor Mandate
Under The Major Questions Doctrine
15
16 Courts will not assume that Congress has assigned to the Executive Branch
17 questions of “deep economic and political significance” unless Congress has done so
18 expressly. King v. Burwell, 576 U.S. 473, 486 (2015); FDA v. Brown & Williamson
19 Tobacco Corp., 529 U.S. 120, 160 (2000). By Defendants’ own estimates, the Contractor
20 Mandate will affect “millions” of individuals.9 Indeed, on average, federal government
21 spending accounts for 20% to 25% of the U.S. economy, and has been even higher during
22 the COVID-19 pandemic. Defendants’ vaccine mandates will thus have deep economic
23 and political significance on a significant portion of the economy.
24 Congress did not intend, nor does the Procurement Act allow, the President to
25 exercise such sweeping authority under the pretext of efficient procurement. In the absence
26 of clear and explicit congressional authorization, the Procurement Act’s purpose of
27 achieving economy and efficiency does not grant the federal government power to usurp
28 9
Rogers Decl. Ex. D at 3 (characterizing EO 14042 as a plan “[r]equiring [v]accinations
for ... [m]illions of [c]ontractors”).
17
1 the States’ traditional police power over public health and vaccination requirements (to the
2 extent any such power exists).
3 3. The Contractor Mandate Is Unlawful Because It Conflicts With
Anther Federal Statute
4
5 “The President's authority [under the Procurement Act] to pursue ‘efficient and
6 economic’ procurement” does not extend to EOs that “conflict with another federal
7 statute.” Chamber of Commerce, 74 F.3d at 1333.
8 The Contractor Mandate accordingly fails because it conflicts with the EUA Statute,
9 21 U.S.C. § 360bbb-3, under which the vaccines at issue are available. Because the EUA
10 statute mandates that individuals have the right to refuse EUA-approved product and the
11 Contractor Mandate denies them that choice, it is unlawful. 10
12 C. The Contractor Mandate Is Unlawful Under The Procurement Policy Act
13 The Office of Federal Procurement Policy Act (“Procurement Policy Act”) requires
14 that a procurement “policy, regulation, procedure, or form (including an amendment or
15 modification thereto) may not take effect until 60 days after it is published for public
16 comment in the Federal Register ... if it--(A) relates to the expenditure of appropriated
17 funds; and (B)(i) has a significant effect beyond the internal operating procedures of the
18 agency issuing the policy, regulation, procedure, or form; or (ii) has a significant cost or
19 administrative impact on contractors or offerors.” 41 U.S.C. § 1707(a). “[T]he language of
20 [§ 1707] is broad” and applies not only to Federal Acquisition Regulations, but to all
21 procurement policies, regulations, procedures, and forms “‘on down to the lowest level.’”
22 Munitions Carriers Conf., Inc. v. United States, 932 F. Supp. 334, 338 (D.D.C. 1996), rev’d
23 on other grounds, 147 F.3d 1027 (D.C. Cir. 1998).
24 The notice-and-comment requirement of § 1707 may only be “waived by the officer
25 authorized to issue a procurement policy, regulation, procedure, or form if urgent and
26 compelling circumstances make compliance with the requirements impracticable.” 41
27 10
As explained below at 22-23, while the FDA has granted approval to the Pfizer
Comirnaty vaccine, the FDA-approved version of the vaccine is not yet available, and the
28 only version of the Pfizer vaccine available for administration to individuals is the version
approved and labeled under the EUA and to which the EUA statute therefore still applies.
18
1 U.S.C. § 1707(d). And even when Section 1707 has been waived, the Procurement Policy
2 Act implementing regulations require that revisions subject to a waiver “shall be issued on
3 a temporary basis and shall provide for at least a 30 day public comment period.” 48 C.F.R.
4 § 1.501-3(b).
5 The SFWTF guidance qualifies both as a “policy” and a “procedure” under the
6 Procurement Policy Act. The Act does not define the terms policy, regulation, procedure,
7 or form, and “in the absence of a statutory definition [courts] ‘start with the assumption
8 that the legislative purpose is expressed by the ordinary meaning of the words used.’”
9 Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47 (1989) (quoting
10 Richards v. United States, 369 U.S. 1, 9 (1962)). Black’s Law Dictionary defines “policy”
11 to mean “[a] standard course of action that has been officially established by an
12 organization,” and it defines “procedure” to mean “[a] specific method or course of action.”
13 Policy and Procedure, Black’s Law Dictionary (11th ed. 2019). The SFWTF Contractor
14 Mandate establishes an official standard course of action and specific methods for
15 imposing COVID-19 vaccine mandates. The SFWTF guidance therefore qualifies as both
16 a procurement “policy” and “procedure,” under the ordinary meanings of those terms.
17 Furthermore, the requirements of Section 1707 apply to the SFWTF contractor
18 guidance because it relates to the expenditure of appropriated funds, has a significant effect
19 beyond internal operating procedures, and imposes significant costs and administrative
20 impacts on contractors and offerors. As discussed above, by their own estimates,
21 Defendants expect that the Contractor Mandate will affect “millions” of individuals. The
22 Procurement Policy Act implementing regulations confirm that the SFWTF guidance is the
23 type of procurement change to which Section 1707 applies. The regulations explain that
24 the types of changes that do not require notice and comment are “editorial, stylistic, or
25 other revisions that have no impact on the basic meaning of the coverage being revised.”
26 48 C.F.R. § 1.501-1. But the SFWTF guidance is nothing of the sort.
27 Defendants never published the SFWTF contractor guidance “for public comment
28 in the Federal Register,” as required by Section 1707. Instead, they released the guidance
19
1 only on the SFWTF website.11 The only Federal Register publication related to the SFWTF
2 contractor guidance was a short notice published on September 28, 2021 in which
3 Defendant Young made the conclusory contention that she had “determined that
4 compliance by Federal contractors and subcontractors with the COVID–19-workplace
5 safety protocols detailed in [the SFWTF] guidance will improve economy and efficiency
6 by reducing absenteeism and decreasing labor costs for contractors and subcontractors
7 working on or in connection with a Federal Government contract.” 86 Fed. Reg. 53,691,
8 53,692 (Sept. 28, 2021). Ms. Young did not cite to any information or evidence that would
9 support the claims in her determination, nor did she explain how she reached her
10 conclusion. See id. Furthermore, Ms. Young’s notice was not open to public comment. Nor
11 did she claim there were any urgent and compelling circumstances preventing compliance
12 with notice-and-comment requirements or justifying a 41 U.S.C. § 1707(d) waiver of the
13 requirement that procurement policies not take effect for 60 days.
14 Because the SFWTF Contractor Guidance was never published for public comment
15 in the Federal Register, and because Defendants never waived the application of Section
16 1707, the SFWTF is unlawful and “may not take effect.” Plaintiffs are therefore likely to
17 succeed on the merits of their Procurement Policy Act challenge.
18 D. The Contractor Mandate Is Unlawful Under The Emergency Use
Authorization Statute
19
20 Under 21 U.S.C. § 360bbb-3, the Secretary of Health and Human Services “may
21 authorize the introduction ... of a drug, device, or biological product intended for use in an
22 actual or potential emergency” before such products receive full FDA approval. Such
23 Emergency Use Authorizations (“EUAs”) are subject to strict requirements, including that
24 “individuals to whom the product is administered are informed ... of the option to accept
25 or refuse administration of the product.” 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III) (emphasis
26 added).
27 The SFWTF contractors guidance states that “people are considered fully
28
11
See Rogers Decl. Ex. H.
20
1 vaccinated if they have received COVID-19 vaccines currently approved or authorized for
2 emergency use by the U.S. Food and Drug Administration (Pfizer-BioNTech, Moderna,
3 and Johnson & Johnson [J&J]/Janssen COVID-19 vaccines).” Rogers Decl. Ex. H at 4. The
4 Moderna and Janssen vaccines are still only available under EUAs. See Rogers Decl. Exs.
5 I, J. The part of the Contractor Mandate that requires administration of the Moderna or the
6 Janssen vaccine is therefore unlawful under 21 U.S.C. § 360bbb-3 because it does not
7 afford to contractors and subcontractors a meaningful opportunity to refuse them.
8 On August 23, 2021, the FDA approved the Biologics License Application (“BLA”)
9 for the Comirnaty vaccine jointly made by Pfizer and BioNTech. Rogers Decl. Ex. K. But
10 there is no indication when the Comirnaty vaccine will become available, or indeed, when
11 production of it would even begin. An NIH notice from September 13, 2021 states that
12 “[a]t present, Pfizer does not plan to produce any [Comirnaty] product with these new
13 NDCs and labels over the next few months while EUA authorized product is still available
14 and being made available for U.S. distribution.”12 On September 22, 2021, the FDA issued
15 an updated EUA letter for the prior Pfizer-BioNTech COVID-19 that explained that while
16 “COMIRNATY (COVID-19 Vaccine, mRNA) is now licensed for individuals 16 years of
17 age and older,” “[t]here remains, however, a significant amount of Pfizer-BioNTech
18 COVID-19 Vaccine that was manufactured and labeled in accordance with this emergency
19 use authorization. The authorization remains in place with respect to the Pfizer-BioNTech
20 COVID-19 Vaccine.” Rogers Decl. Ex. L. The FDA-approved Comirnaty vaccine is not
21 yet available in the United States. The only Pfizer-BioNTech vaccine currently available
22 is of the prior EUA version of the vaccine.
23 The same FDA letter also acknowledges that the “licensed vaccine” and “the EUA-
24 authorized vaccine ... are legally distinct....” Id. at 3 n.10.13 The legal distinctions between
25 12
Rogers Decl. Ex. V.
26 13
And while the letter also claims that the Pfizer-BioNTech EUA vaccine and Comirnaty
have “the same formulation,” id., the FDA released together with its Comirnaty approval
27 a document titled “Summary Basis for Regulatory Action” that acknowledges that there is
at least one compositional difference: as opposed to the EUA version of the vaccine,
28
“COMIRNATY includes the presence of optimized codons to improve antigen
21
1 the two versions of the Pfizer-BioNTech vaccine are relevant here, because the
2 requirements of 21 U.S.C. § 360bbb-3 still apply to the EUA version of the vaccine.
3 Defendants are therefore required to afford to all individuals subject to the Contractor and
4 Employee Mandates the “option to ... refuse administration of the product.”
5 1. Legislative History And Agency Interpretation Establish That The
EUA Statute Creates A Right To Refuse EUA Products
6
7 Beyond just the clear statutory language requiring that individuals have the “option
8 to ... refuse,” the legislative history and agency interpretation also establish that the EUA
9 statute creates a right to refuse EUA products.
10 When Congress adopted the EUA statute, it interpreted the statute as conferring “the
11 right ... to refuse administration of a product.” H.R. Conf. Rep. No. 108-354, at 782 (2003)
12 (emphasis added). The FDA’s interpretation of the statute also agrees that the EUA statute
13 means that “[r]ecipients must have an opportunity to accept or refuse the EUA product”
14 and that this right to refuse can only be waived if the President makes a specific
15 determination in writing, and only with respect to members of the armed forces. 14
16 A specific statute, 10 U.S.C. § 1107a, gives the President the power to waive the
17 right to refuse of members of the armed forces. He may waive their right, however, only if
18
19 expression.” Rogers Decl. Ex. M at 14.
14
20 FDA, Guidance Emergency Use Authorization of Medical Products, 2007 WL 2319112,
at *15 and n.16 (acknowledging that “Congress authorized the President to waive, under
21 certain circumstances, the option for members of the armed forces to accept or refuse
administration of an EUA product”) (emphasis added); see also, FDA, Emergency Use
22 Authorization of Medical Products and Related Authorities: Guidance for Industry and
Other Stakeholders, OMB Control No. 0910-0595 at 24 n.46, 2017 WL 345587, at *31
23 n.46 (Jan. 2017) (characterizing the requirements of 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III)
as “the option ... to accept or refuse administration of an EUA product” and explaining that
24
“[t]he President may under certain circumstances waive the option for members of the
25 armed forces”); 10 U.S.C. § 1107a(a) (stating that the requirements of 21 U.S.C. § 360bbb-
3(e)(1)(A)(ii)(III), as applied to the armed forces, “may be waived only by the President
26 only if the President determines, in writing, that complying with such requirement is not in
the interests of national security”); Authorization of Emergency Use of Anthrax Vaccine
27 Adsorbed for Prevention of Inhalation Anthrax by Individuals at Heightened Risk of
Exposure Due to Attack With Anthrax; Availability, 70 Fed. Reg. 5452-02, 5455 (Feb. 2,
28 2005) (creating EUA for anthrax vaccine for members of the armed forces, and stating that
“[i]ndividuals who refuse anthrax vaccination will not be punished”).
22
1 he makes a specific determination in writing “that complying with such requirement is not
2 in the interests of national security.” 10 U.S.C. § 1107a(a)(1). A parallel statute, 10 U.S.C.
3 § 1107, imposes similar requirements for investigational drugs. That Congress adopted
4 these statutes makes clear that Congress meant for the “option to ... refuse” to be just that.
5 Otherwise, there would be no reason to enact statutes allowing the President to waive those
6 requirements when national security so requires.
7 At least one District Court interpreting Section 1107 has held that its requirements
8 meant that the military could not require that personnel receive an investigational vaccine
9 “absent informed consent or a Presidential waiver.” Doe v. Rumsfeld, 341 F. Supp. 2d 1,
10 16 (D.D.C. 2004), modified sub nom. John Doe No. 1 v. Rumsfeld, No. CIV.A. 03-707
11 (EGS), 2005 WL 774857 (D.D.C. Feb. 6, 2005), and modified 2005 WL 1124589 (D.D.C.
12 Apr. 6, 2005); see also John Doe No. 1 v. Rumsfeld, No. 03-707, 2005 WL 774857, at *1
13 (D.D.C. Feb. 6, 2005) (ordering that administration to military personnel of experimental
14 anthrax vaccine subject to an EUA was permitted, but only “on a voluntary basis, pursuant
15 to the terms of a lawful emergency use authorization” (emphasis in original)). The FDA’s
16 own regulations specifically state that one of the elements of “informed consent” is that
17 “participation [be] voluntary” and “that refusal to participate will involve no penalty or
18 loss of benefits to which the subject is otherwise entitled.” 21 C.F.R. § 50.25 (emphasis
19 added).
20 The court’s reasoning in Doe applies here. The only exception to the EUA statute’s
21 informed consent requirement is for members of the armed forces, and only when the
22 President has issued a specific determination. Getting fired is a “penalty or loss of benefits
23 to which the subject is otherwise entitled.” 21 C.F.R. § 50.25. The mandates’ coercive
24 threat of “get the jab or get fired” means that individuals subject to the mandates do not
25 have a meaningful “option to . . . refuse” the vaccine. The mandates are therefore unlawful
26 under 21 U.S.C. § 360bbb-3.The Contractor (and Employee) Mandates thus violate the
27 EUA statute.
28
23
1 2. Canons Of Construction Make Clear That The EUA Statute Creates

A Right To Refuse EUA Products
2
3 The canons of construction confirm what Section 360bbb-3’s text already makes
4 plain. Two are critical here: avoidance of surplusage and expressio unius.
5 1) Avoidance Of Surplusage. “It is ‘a cardinal principle of statutory construction’
6 that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no
7 clause, sentence, or word shall be superfluous, void, or insignificant.’” TRW Inc. v.
8 Andrews, 534 U.S. 19, 31 (2001) (citation omitted). If Section 360bbb-3 were interpreted
9 to allow Defendants to require that contractors fire employees who refuse to take EUA
10 vaccines, it would render a nullity the statutory language providing for the “option to accept
11 or refuse administration of the product.”
12 2) Expressio Unius. Under the venerable expressio unius canon, “[t]he expression
13 of one thing implies the exclusion of others.” Jennings v. Rodriguez, 138 S.Ct. 830, 844
14 (2018). Thus, “[w]hen a statute limits a thing to be done in a particular mode, it includes a
15 negative of any other mode.” Christensen v. Harris Cty., 529 U.S. 576, 583 (2000) (cleaned
16 up) (citation omitted). As explained above, Congress provided for only one exception to
17 the right to refuse: when the President makes a national security determination in writing
18 and waives the requirement as it applies to members of the military. Application of the
19 expressio unius canon is particularly appropriate here, as “[w]here Congress explicitly
20 enumerates certain exceptions to a general prohibition, additional exceptions are not to be
21 implied, in the absence of evidence of a contrary legislative intent.” TRW Inc. 534 U.S. at
22 28 (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616–617 (1980)). And there is no
23 “evidence of a contrary legislative intent” here.
24 II. Plaintiffs Are Likely To Prevail On The Merits Of Their Claims Against the
Employee Mandate
25
A. The Employee Mandate Violates The Equal Protection Clause And The
26 EUA Statute
27 For all the same reasons discussed above with respect to the Contractor Mandate,
28 the Employee Mandate also violates the Equal Protection Clause and the EUA statute. The
24
1 State is therefore likely to prevail on its challenges to the Employee Mandate on those
2 bases as well. Supra at 10-12, 21-25.
3 B. The Federal Employee Mandate Violates Employees’ Constitutional Right
To Bodily Integrity And To Refuse Medical Procedures
4
5 “[E]ven in a pandemic, the Constitution cannot be put away and forgotten.” Roman
6 Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020). And under Supreme Court
7 precedent, Defendants’ Employee Mandate is an unconstitutional violation of the Due
8 Process Clause and the right to bodily integrity.
9 “[A] competent person has a constitutionally protected liberty interest in refusing
10 unwanted medical treatment.” Cruzan by Cruzan v. Dir., Missouri Dep’t of Health, 497
11 U.S. 261, 278 (1990). This right is rooted in “the common-law rule that forced medication
12 was a battery, and the long legal tradition protecting the decision to refuse unwanted
13 medical treatment.” Washington v. Glucksberg, 521 U.S. 702, 725 (1997).
14 Closely related to the right to refuse unwanted medical treatment is the right to
15 bodily integrity. “[D]ue process ... substantively protects a person's rights to be free from
16 unjustified intrusions to the body, to refuse unwanted medical treatment and to receive
17 sufficient information to exercise these rights intelligently.” Benson v. Terhune, 304 F.3d
18 874, 884 (9th Cir. 2002) (citations omitted). Individuals thus have a “constitutional right
19 to be free from state-imposed violations of bodily integrity.” Plumeau v. Sch. Dist. No. 40
20 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).
21 Defendants may not evade these constitutional requirements by claiming to be
22 acting merely as an employer or participant in the market economy. Under the
23 unconstitutional conditions doctrine, the government may not condition employment “on
24 a basis that infringes [an employee’s] constitutionally protected interests.” Perry v.
25 Sindermann, 408 U.S. 593, 597 (1972); see also, Koontz v. St. Johns River Water Mgmt.
26 Dist., 570 U.S. 595, 606 (2013) (“[T]he unconstitutional conditions doctrine forbids
27 burdening the Constitution’s enumerated rights by coercively withholding benefits from
28 those who exercise them....”); Koontz, 570 U.S. at 604 (“[A]n overarching principle, known
25
1 as the unconstitutional conditions doctrine, ... vindicates the Constitution’s enumerated

2 rights by preventing the government from coercing people into giving them up.”) The
3 unconstitutional conditions doctrine also applies to government contracts. Bd. of Cty.
4 Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 678 (1996).
5 1. The Employee Mandate Is Subject To Strict Scrutiny
6 The “rights to determine one’s own medical treatment[] and to refuse unwanted
7 medical treatment” are fundamental rights, and individuals have “a fundamental liberty
8 interest in medical autonomy.” Coons v. Lew, 762 F.3d 891, 899 (9th Cir. 2014), as
9 amended (Sept. 2, 2014) (cleaned up). Similarly, the right to “bodily integrity” is also
10 “fundamental” and is “deeply rooted in this Nation’s history and tradition.” Franceschi v.
11 Yee, 887 F.3d 927, 937 (9th Cir. 2018) (quoting Moore v. East Cleveland, 431 U.S. 494,
12 503 (1977)). “Every violation of a person’s bodily integrity is an invasion of his or her
13 liberty. The invasion is particularly intrusive if it creates a substantial risk of permanent
14 injury and premature death. Moreover, any such action is degrading if it overrides a
15 competent person’s choice to reject a specific form of medical treatment.” Washington v.
16 Harper, 494 U.S. 210, 237 (1990) (Stevens, J., concurring in part).
17 “Governmental actions that infringe upon a fundamental right receive strict
18 scrutiny.” Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1208 (9th Cir. 2005), as amended
19 by 447 F.3d 1187 (9th Cir. 2006). Accordingly, the Employee Mandate is subject to strict
20 scrutiny and must be struck down unless it “advance[s] a compelling state interest by the
21 least restrictive means available.” Bernal v. Fainter, 467 U.S. 216, 219 (1984).
22 In this case, the Employee Mandate fails the strict scrutiny test because it is both
23 under- and over-inclusive. It is overinclusive because it applies to persons and situations
24 where risk of infection is either extremely low or nonexistent such as to employees who
25 are working remotely full-time and thus do not pose any risk of exposing other federal
26 employees to COVID-19 and to federal employees who have already been infected with
27 COVID-19 and thus already have natural immunity. See supra at 17. The Employee
28 Mandate is under-inclusive because it does not apply to unauthorized aliens, even though
26
1 they can become infected with, and carriers of, COVID-19 just like U.S. citizens and lawful
2 permanent residents. Indeed, the Employee Mandate’s parameters are so irrational and
3 arbitrary that they would fail even under a rational basis standard.
4 2. Jacobson Does Not Command A Different Result
5 Public debate about government vaccine mandates has often focused on the
6 Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11
7 (1905). That case, however, has little applicability here for four reasons.
8 First, it was addressing whether States have the power to impose vaccine mandates.
9 The Court never considered the constitutionality of the Federal government imposing such
10 mandates, which have always been considered as being part of the police power held
11 exclusively by the States, to the extent that such power exists at all.
12 Second, Jacobson was decided 116 years ago, just months before the Court issued
13 its decision in Lochner v. New York, 198 U.S. 45 (1905), which is now widely regarded as
14 having been relegated to the ash heap of jurisprudential history. Needless to say, a lot has
15 changed doctrinally since then. As one district court has explained:
16 There is no question, therefore, that even under the plain language of
17 Jacobson, a public health measure may violate the Constitution.
18 Jacobson was decided over a century ago. Since that time, there has been
substantial development of federal constitutional law in the area of civil
19 liberties. As a general matter, this development has seen a jurisprudential
shift whereby federal courts have given greater deference to considerations
20 of individual liberties, as weighed against the exercise of state police powers.
That century of development has seen the creation of tiered levels of scrutiny
21 for constitutional claims. They did not exist when Jacobson was decided.
While Jacobson has been cited by some modern courts as ongoing support
22 for a broad, hands-off deference to state authorities in matters of health and
safety, other courts and commentators have questioned whether it remains
23 instructive in light of the intervening jurisprudential developments....
24 The permissive Jacobson rule floats about in the air as a rubber stamp for all
but the most absurd and egregious restrictions on constitutional liberties, free
25 from the inconvenience of meaningful judicial review. This may help explain
why the Supreme Court established the traditional tiers of scrutiny in the
26 course of the 100 years since Jacobson was decided.
27 Cty. of Butler v. Wolf, 486 F. Supp. 3d 883, 897 (W.D. Pa. 2020) (cleaned up).
28 Third, as Justice Gorsuch recently explained, it is important to “consider the
27
1 different nature of the restriction” in Jacobson versus Defendants’ mandate. Roman Cath.
2 Diocese of Brooklyn, 141 S. Ct. at 70 (Gorsuch, J., concurring). “In Jacobson, individuals
3 could accept the vaccine, pay the fine [$5, or about $140 today], or identify a basis for
4 exemption. The imposition on Mr. Jacobson’s claimed right to bodily integrity, thus, was
5 avoidable and relatively modest. It easily survived rational basis review, and might even
6 have survived strict scrutiny, given the opt-outs available to certain objectors.” Id. at 70-
7 71. There is nothing “avoidable” or “relatively modest” about Defendants’ draconian “get
8 the jab or get fired” mandate. Curiously, the modest penalties involved in Jacobson were
9 aimed at fighting a significantly more deadly disease: the death rate for smallpox infection
10 is about 30%,15 whereas the death rate for COVID-19 is about 0.15%,16 which is 200 times
11 lower than the death rate for smallpox.
12 Fourth, while Jacobson has never been formally abrogated, its doctrinal
13 underpinnings have been cut out from under it. Jacobson was the only citation that Justice
14 Holmes provided to support his now-infamous statement that “[t]hree generations of
15 imbeciles are enough,” in his opinion in Buck v. Bell upholding compulsory eugenics-based
16 sterilization laws as both constitutional and socially desirable. 274 U.S. 200, 207 (1927).
17 The full quotation in context shows how essential Jacobson was to Justice Holmes’s
18 opinion:
19 The principle that sustains compulsory vaccination is broad enough to cover
20 cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11, 25 S.
Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations of imbeciles are
21 enough.
22 Id. While Buck v. Bell has never been overruled, its inapplicability today is not seriously
23 disputed. The same result should obtain for Jacobson.
24 III. All The Other Requirements For An Injunction Are Met
25 A. Plaintiffs Will Suffer Irreparable Harm If An Injunction Is Not Granted
26 Plaintiffs are likely to suffer irreparable harm in the absence of the requested
27 preliminary injunction because the harms incurred from vaccination compelled by
28 15
Rogers Decl. Ex. T.
16
Rogers Decl. Ex. U.
28
1 Defendants’ Mandates—including the potential for well-documented side-effects—

2 cannot be remedied through monetary damages or other post hoc judicial relief.
3 Irreparable harm exists where there is no adequate legal remedy to cure the harm. See
4 Arizona Recovery House Ass’n v. Arizona Dep’t of Health Services, 462 F. Supp. 3d 990,
5 997 (D. Ariz. 2020). “[A] regulation later held invalid almost always produces the
6 irreparable harm of nonrecoverable compliance costs.” Thunder Basin Coal Co. v. Reich,
7 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring) (emphasis in original).
8 Moreover, “where parties cannot typically recover monetary damages flowing
9 from their injury … economic harm can be considered irreparable” and “[i]ntangible
10 injuries may also qualify as irreparable harm, because such injuries ‘generally lack an
11 adequate legal remedy.’” East Bay, 950 F.3d at 1280 (9th Cir. 2020) (quoting California
12 v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) and Arizona Dream Act Coal. v. Brewer, 757
13 F.3d 1053, 1068 (9th Cir. 2014)). “The mere fact that the damages are susceptible to
14 quantification, however, does not necessarily mean that a preliminary injunction will not
15 lie.” Arizona Recovery Hous. Ass’n, 462 F. Supp. 3d at 997; City & County of San
16 Francisco v. United States Citizenship & Immigration Services, 981 F.3d 742, 762 (9th
17 Cir. 2020) (“There is no dispute that such economic harm is sufficient to constitute
18 irreparable harm because of the unavailability of monetary damages.”) (citing Azar, 911
19 F.3d at 581).
20 Defendants’ Mandates will also cause substantial harm to Arizona’s economy and
21 to Arizona businesses that will either have to fire valuable employees, or give up lucrative
22 government contracts. The Society for Human Resource Management conducted a survey
23 of businesses subject to Defendants’ Mandates and found that “85 percent said the
24 anticipated requirement will make retaining employees more difficult. Eighty-nine percent
25 said some of their employees will quit due to the new mandate.” FAC ¶83. Similarly, a
26 leading trade publication covering the construction industry has predicted that more than
27 40% of employees in the construction industry, “when faced with the choice between the
28 vaccine and their job with a federal contractor, will quit and go to work for another
29
1 contractor that does not have such a mandate” Id. This is particularly true as the U.S.
2 economy is currently undergoing the so-called “Great Resignation,” where employee
3 attrition is already at extraordinary high levels. 17 Furthermore, the confusion and
4 dislocation caused by mass layoffs and possible labor actions by affected employees
5 threaten to cause substantial economic loss. The recent chaos faced by Southwest Airlines
6 (see infra at 32-34) is an example of the widespread harm that Arizona faces.
7 Additionally, the State of Arizona will suffer direct economic loss. Since some
8 Arizona state agencies are federal contractors, they face the loss of federal funds and
9 contracts. And if State agencies were able to impose the mandate, it would force many
10 State employees to resign or get fired. In the current tight labor market, this will cause
11 significant harm to the State’s operations through the loss of institutional knowledge and
12 human capital. It will also cause the State to incur significant recruitment, on-boarding,
13 and training costs to replace lost employees.
14 Similarly, Plaintiff Doe faces the heavy economic harm of losing his job, and thus
15 his income.
16 B. The Balance Of Harms And Public Interest Support A Preliminary
Injunction
17
The third and fourth Winter factors, the balance of the equities and public interest
18
factors, also weigh in favor of Plaintiffs, and are properly considered together here. “When
19
the Government is a party to a case, the balance of the equities and public interest factors
20
merge.” Doe #1 v. Trump, 984 F.3d 848, 861–62 (9th Cir. 2020) (internal quotation marks
21
omitted). The “purpose of a preliminary injunction is merely to preserve the relative
22
positions of the parties until a trial on the merits can be held.” Univ. of Tex., 451 U.S. at
23
395; Doe #1 v. Trump, 957 F.3d 1050, 1068 (9th Cir. 2020). Here, as “often happens …
24
this purpose is furthered by the status quo,” Doe #1, 957 F.3d at 1068, which in this case
25
is the regime prior to September 9, under which there were no federal vaccination
26
mandates (with Defendants themselves having admitted that the federal government
27
28
17
Rogers Decl. Exs. W, X.
30
1 lacked authority to impose them, FAC ¶74).

2 In Doe #1, plaintiffs challenged a presidential proclamation affecting immigration
3 policy and obtained a preliminary injunction. In reviewing the federal government’s
4 request for a stay of the injunction, the Ninth Circuit held that “it was the Proclamation
5 that altered the status quo,” rejecting the federal government’s argument that the status
6 quo is the “Proclamation as implemented.” Id. The same analysis controls here as the
7 discriminatory vaccine mandate presents the anomaly in the normal course of business.
8 And enjoining an unconstitutional and discriminatory mandate poses no harm to
9 Defendants. They have no legitimate interest in the implementation of an unlawful policy.
10 See N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013) (recognizing
11 that government officials “do[] not have an interest in the enforcement of an
12 unconstitutional law”). In contrast, the public interest is served by an injunction because
13 maintaining the status quo will prevent further disruption in the delivery of goods and
14 services dependent upon industries already experiencing a labor shortage that will be
15 predictably exacerbated by additional conditions on employment.
16 This has been prominently displayed in the case of Southwest Airlines, which had
17 to cancel over 2000 flights in the past ten days as pilots refused to work in the wake of the
18 company’s vaccine mandate and the pilot’s union’s suit to stop it. 18 “The key driver for
19 such cancellations is likely the COVID-19 vaccine mandate for its employees. Southwest
20 employees are expressing their concern in droves by simultaneously and strategically using
21 their sick time benefits.”19 What’s more, estimates indicate that such a massive impact can
22 be felt by the action of “just over 2 percent of their employees being unavailable. This
23 illustrates how vulnerable the airline is to organized worker shortages even among a small
24 group of potentially disgruntled employees.” 20 And the company would not have put a
25 vaccine requirement in place but for the Biden administration’s mandate, as Southwest’s
26
18
27 Rogers Decl. Exs. N, O.
19
Rogers Decl. Ex. O.
28 20
Id.
31
1 CEO Gary Kelly has “never been in favor of corporations imposing that kind of a mandate.
2 I’m not in favor of that, never have been.”21 In addition to being consumer airlines,
3 “Southwest Airlines and American Airlines are among the carriers that are federal
4 contractors and subject to” the Contractor Mandate, so their employees may not utilize
5 “regular Covid testing as an alternative to a vaccination” as other large, non-contractor
6 business employees may.22 And while the airline claims weather and air traffic control
7 issues as its official justification for the unprecedented disruption in service, it is telling
8 that in response, it has dropped one of its major enforcement mechanisms for the mandate:
9 forced unpaid leave.23
10 As other industries lose workers to the mandate, similar to Southwest’s experience,
11 the already-ongoing labor shortage will only deepen, impacting multiple industries and
12 disrupting the supply chain.24 This is predicted to have a significant impact on the
13 availability of goods, increase consumer prices, and cost billions of dollars in trade, as
14 workers pull out of critical industries or switch to jobs without such mandates:
15
Biden’s vaccine mandates are one reason that our ports, clogged with
16 stacked-up ships waiting to disgorge needed goods, may not be freed up any
17 time soon. There are currently an unprecedented 62 cargo ships awaiting
unloading at the Los Angeles and Long Beach, Calif., docks. The back-up,
18 said likely to disrupt $90 billion in trade and possibly cause holiday-season
19 goods shortages, is partly because of the sheer volume of goods being pushed
through the supply chains as stores and manufacturers try to dig out from the
20 COVID-related shut-downs.25
21 This is why the pre-mandate status quo of vaccine choice should be maintained: Entering
22 a preliminary injunction will put these ill effects on hold until the illegality of the mandate
23 orders can be properly reviewed. Thus, the public interest will be served as employees can
24 continue working with job security regardless of vaccine choice, allowing the economy
25
26 21
Rogers Decl. Ex. P.
22
Rogers Decl. Ex. Q.
27 23
Id.; Massie, n. 10, supra.
28 24
Rogers Decl. Ex. R.
25
Id.
32
1 and supply chains to continue recovering without disruptions caused by the predictable
2 protest actions some have already seen.
3 IV. Plaintiffs Request a Temporary Restraining Order
4 Plaintiffs request that this Court immediately issue a temporary restraining order
5 (“TRO”) while this Motion for Preliminary Injunction is pending for the purpose “of
6 preserving the status quo and preventing [the] irreparable harm” that is occurring and will
7 continue to occur if Defendants’ Mandates are allowed to remain in effect, as the next
8 vaccination deadline is just days away. Granny Goose Foods, Inc. v. Brotherhood of
9 Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 439
10 (1974).
11 “The standard for issuing a TRO is the same as that for issuing a preliminary
12 injunction.” Spears v. Arizona Bd. of Regents, 372 F. Supp. 3d 893, 926 (D. Ariz. 2019).
13 As demonstrated above, Plaintiffs are likely to succeed on the merits, are likely to suffer
14 irreparable harm in the absence of a TRO, and the balance of equities and public interest
15 favor a TRO.
16 What makes a TRO especially necessary here are the proximity of vaccination
17 deadlines to the filing of the Motion, many of which are likely to come and go before the
18 preliminary injunction will be fully briefed, and the irreversibility of receiving a vaccine.
19 The Contractor and Employee Mandates seek to coerce certain categories of individuals
20 into undergoing an invasive medical procedure, an experience that cannot be undone. The
21 deadline for federal contractors to receive their first vaccine is approaching as early as
22 October 27, 2021, so time is of the essence. The deadline for federal employees to receive
23 their first Pfizer or Moderna vaccine has already passed, but the November 8 deadline for
24 them to receive their second dose (or their first and only dose of the Johnson & Johnson
25 vaccine) is just weeks away. As a consequence of the mandate’s timeline, Plaintiffs are
26 suffering, and will continue to suffer, irreparable harm in the absence of a TRO. These
27 factors and the disruption in business and travel linked to the application of federal
28 COVID-19 vaccine mandates emphasize that the public interest favors a TRO because it
33
1 will preserve the status quo until this Motion for Preliminary Injunction can be reached by
2 this Court.
3 CONCLUSION
4 Plaintiffs respectfully request that the Court issue a temporary restraining order and
5 preliminary injunction enjoining enforcement of the Contractor and Employee Mandates.
6
7 RESPECTFULLY SUBMITTED this 22nd day of October, 2021.
8
9 MARK BRNOVICH
ATTORNEY GENERAL
10
By: /s/ James K. Rogers .
11
Joseph A. Kanefield (No. 15838)
12 Brunn W. Roysden III (No. 28698)
13 Drew C. Ensign (No. 25463)
James K. Rogers (No. 27287)
14
Attorneys for Plaintiffs Mark Brnovich and the
15 State of Arizona
16
17 WILENCHIK & BARTNESS PC
18
By: /s/ Jack Wilenchik (with permission)
19
Jack Wilenchik (No. 029353)
20
Attorney for Plaintiff John Doe
21
22
23
24
25
26
27
28
34
1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 22nd day of October, 2021, I electronically filed the
3 foregoing with the Clerk of the Court for the United States District Court for the District
4 of Arizona using the CM/ECF filing system. Counsel for all parties are registered CM/ECF
5
users and will be served by the CM/ECF system pursuant to the notice of electronic filing.
6
7 /s/ James K. Rogers
8 Attorney for Plaintiff Mark Brnovich, in his
official capacity as Attorney General of Arizona;
9
and the State of Arizona
10
11
12
13
14
15
16
17
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35

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Case 2:21-cv-01568-MTL Document 34 Filed 10/22/21 Page 1 of 45

1 MARK BRNOVICH Wilenchik & Bartness PC

1 Carnahan in her official capacity as

19 1. Legislative History And Agency Interpretation Establish That The

1 A. Plaintiffs Will Suffer Irreparable Harm If An Injunction Is Not Granted .. 28

1 Chamber of Commerce of U.S. v. Reich,

1 733 F.3d 483 (2d Cir. 2013) .......................................................................................... 31

1 573 U.S. 302 (2014) ...................................................................................................... 12

1  A definition of the term “covered contractor employee” to “include[] employees of

26 The Contractor Mandate violates the Tenth Amendment and principles of

1 respectively, or to the people.” U.S. Const. amend. X.

1 across the country as humanly possible. And so the President’s

25 or refuse administration of the product.” 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III) (emphasis

1 2. Canons Of Construction Make Clear That The EUA Statute Creates

1 as the unconstitutional conditions doctrine, ... vindicates the Constitution’s enumerated

28 Third, as Justice Gorsuch recently explained, it is important to “consider the

25 A. Plaintiffs Will Suffer Irreparable Harm If An Injunction Is Not Granted

1 Defendants’ Mandates—including the potential for well-documented side-effects—

1 lacked authority to impose them, FAC ¶74).

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