UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
STATE OF TEXAS,
Plaintiff,
v.
JOSEPH R. BIDEN in his official
capacity as President of the United
States; UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT;
KIRAN AHUJA, in her official capacity
as Director of the Office of Personnel
Management and as co-chair of the Safer
Federal Workforce Task Force;
GENERAL SERVICES
ADMINISTRATION; ROBIN
CARNAHAN, in her official capacity as
Administrator of the General Services
Administration and as co-chair of the
Safer Federal Workforce Task Force;
OFFICE OF MANAGEMENT AND
BUDGET; SHALANDA YOUNG, in her
official capacity as Acting Director of the
Office of Management and Budget and as
a co-chair of the Safer Federal Workforce
Task Force; SAFER FEDERAL
WORKFORCE TASK FORCE;
JEFFREY ZIENTS, in his official
capacity as co-chair of the Safer Federal
Workforce Task force and COVID-19
Response Coordinator; NATIONAL
AERONAUTICS AND SPACE
ADMINISTRATION; BILL NELSON,
in his official capacity as Administrator
of the National Aeronautics and Space
Administration; UNITED STATES
DEPARTMENT OF AGRICULTURE;
TOM VILSACK, in his official capacity
as Secretary of the United States
Department of Agriculture; FEDERAL
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CIVIL ACTION NO. 3:21-CV-309
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 1 of 34
State of Texas’s Original Complaint 2
ACQUISITIONS REGULATION
COUNCIL; LLOYD J. AUSTIN, III, in
his official capacity as the Secretary of
the Department of Defense
Defendants.
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STATE OF TEXAS’S ORIGINAL COMPLAINT
I. INTRODUCTION
1. Countless Texans and other Americans are being forced to choose between their
livelihoods and their fundamental constitutional rights. The State of Texas and its officials have
sought to protect individual rights while also encouraging and promoting effective public health
techniques to combat the spread of COVID-19. The federal government, however, has launched a
coordinated effort to decide for itself whether and when Americans must receive the vaccine,
regardless of individual preference, healthcare needs, or religious beliefs.
2. Our Constitution provides for a federal government of limited powers, and it does not and
has never had a general police power that would give it the right to dictate any and every facet of
its citizens’ lives. But Defendants have no regard for the limits that the Constitution and federal
statutes impose upon them. Defendants’ actions are nothing short of a dramatic infringement upon
individual liberties, principles of federalism and separation of powers, and the rule of law.
3. Even worse, the federal government’s cowardice has led it to have federal contractors do
their dirty work. Rather than impose a vaccine mandate directly, Defendants are coercing federal
contractors into demanding that the millions of Americans they employ get vaccinated or lose their
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State of Texas’s Original Complaint 3
jobs. Defendants also require contractors to dictate the lives of not only those performing work
connected to federal contracts, but also those employees who may not perform any federal work at
all. Simply due to the misfortune of working for a company that may have a federal contract, an
American may be forced to receive a vaccine they do not want or else lose their job.
4. The federal government’s overreach must come to an end. Defendants are using subterfuge
to accomplish what they cannot achieve directly—universal compliance with their vaccine
mandates, regardless of individual preferences, healthcare needs, or religious beliefs. And
Defendants effectively claim for themselves a general police power to control American life,
infringing on states’ sovereignty and usurping the powers reserved to the states under the
Constitution.
5. President Biden himself has expressed little tolerance for those who do not share his views,
as he put on public display when he announced that his “patience was wearing thin”
1
with
Americans who choose not to receive the COVID-19 vaccine. The President has further singled
out Texas as an enemy because of its stance in favor of individual liberty. Speaking about Texas
Governor Greg Abbott, President Biden threatened that “[i]f they’ll not help—if these governors
won’t help us beat the pandemic, I’ll use my power as President to get them out of the way.”
2
And
yet, then-President-Elect Biden previously vowed not to demand any mandatory vaccinations.
3
1
Joseph Biden, Remarks by President Biden on Fighting the Covid-19 Pandemic (Sept. 9, 2021),
https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-
president-biden-on-fighting-the-covid-19-pandemic-3/ (last visited Oct. 27, 2021).
2
Id.
3
Jacob Jarvis, “Fact Check: Did Joe Biden Reject Idea of Mandatory Vaccines in
December 2020?,” Newsweek (Sept. 10, 2021), https://www.newsweek.com/fact-check-joe-
biden-no-vaccines-mandatory-december-2020-1627774 (last visited Oct. 27, 2021).
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 3 of 34
State of Texas’s Original Complaint 4
6. Through a conflicting, vague, and confusing web of executive orders, task force directives,
and contract requirements, Defendants have made it obvious that they will accept nothing less than
complete obedience and compliance with their vision for how to fight COVID-19. Defendants
apparently have no concern for the disastrous potential effects of Defendants’ coercive tactics on
the economy or the erosion of Americans’ liberties. Even one American being forced by their
government to receive a vaccine that they do not want out of fear of losing their job is an irreparable
injury and a stain on Defendants’ records. But the broader implications of these unlawful vaccine
mandates, if they are not stopped, portend a dark future for the economy and the American way of
life.
7. The State of Texas respectfully requests that the Court put an end to these unlawful and
coercive tactics and stop this pernicious erosion of fundamental rights.
II. PARTIES
8. Plaintiff State of Texas is a sovereign State of the United States of America and has the
authority and responsibility to protect its sovereign interests, its public fisc, and the health, safety,
and individual liberties of its citizens.
9. Defendant Joseph R. Biden is the President of the United States. President Biden is sued
in his official capacity.
10. Defendant United States Office of Personnel Management (“OPM”) is an independent
federal agency.
11. Defendant Kiran Ahuja is director of OPM and co-chair of the Safer Federal Workforce
Task Force. She is sued in her official capacity.
12. Defendant General Services Administration (“GSA”) is an independent federal agency.
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State of Texas’s Original Complaint 5
13. Defendant Robin Carnahan is administrator of GSA and co-chair of the Safer Federal
Workforce Task Force as well as a member of the Federal Acquisitions Regulation Council (“FAR
Council”). She is sued in her official capacity.
14. Defendant Office of Management and Budget (“OMB”) is an office within the Executive
Office of the President of the United States.
15. Defendant Shalanda Young is Acting Director of the OMB and is a member of the Safer
Federal Workforce Task Force. She is sued in her official capacity.
16. Defendant Safer Federal Workforce Task Force was established January 20, 2021, by
Executive Order 13991.
17. Defendant Jeffrey Zients is co-chair of the Safer Federal Workforce Task Force and is
President Biden’s COVID-19 Response Coordinator. He is sued in his official capacity.
18. Defendant National Aeronautics and Space Administration (“NASA”) is an independent
federal agency.
19. Defendant Bill Nelson is the Administrator of NASA and a member of the FAR Council.
He is sued in his official capacity.
20. Defendant the United States Department of Agriculture (“USDA”) is an independent
federal agency.
21. Defendant Tom Vilsack is the Secretary of the USDA. He is sued in his official capacity.
22. Defendant Federal Acquisitions Regulation Council is responsible for managing,
coordinating, controlling, and monitoring the maintenance of, issuance of, and changes in the FAR.
23. Defendant Lloyd J. Austin, III., is the Secretary of the Department of Defense and a
member of the FAR Council. He is sued in his official capacity.
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State of Texas’s Original Complaint 6
III. JURISDICTION AND VENUE
24. This Court has jurisdiction under 5 U.S.C. §§ 702 and 703 and 28 U.S.C. §§ 1331, 1346,
and 1361, under the United States Constitution, and pursuant to the Court’s equitable powers.
25. The Court is authorized to award the requested declaratory and injunctive relief under
5 U.S.C. §§ 702 and 706 and 28 U.S.C. §§ 1361, 2201, and 2202.
26. Venue is proper within this District pursuant to 28 U.S.C. § 1391(e) because (1) Plaintiff
is the State of Texas and no real property is involved and (2) “a substantial part of the events or
omissions giving rise to the claim occurred” in this District.
IV. LEGAL BACKGROUND
27. Federal contracting and procurement is an arcane area of law that is difficult to navigate,
and Defendants have weaponized that complexity. In attempting to impose a vaccination mandate
on their contractors, Defendants have run afoul of federal law in many respects, as described below.
The interlocking federal statutes and requirements at issue lead to one inescapable conclusion: the
federal executive branch cannot achieve its unlawful policy outcomes through clever manipulation
of federal contracts and contractors.
A. The Procurement Act.
28. The purpose of the Federal Property and Administrative Services Act (“Procurement
Act”), adopted by Congress in 1949, “is to provide the Federal Government with an economical
and efficient system for” procurement. 40 U.S.C. § 101. “The text of the Procurement Act and
its legislative history indicate that Congress was troubled by the absence of central management
that could coordinate the entire government’s procurement activities in an efficient and
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State of Texas’s Original Complaint 7
economical manner.” Chamber of Comm. of U.S. v. Reich, 74 F.3d 1322, 1333 (D.C. Cir. 1996)
(citation omitted).
29. The legislative history of the Procurement Act is replete with references to the need for an
“efficient, businesslike system of property management.” Id. at 1333 (citation omitted). The
Procurement Act authorizes the President to “prescribe policies and directives that the President
considers necessary to carry out” the Act but requires that such policies prescribed by the
President “be consistent with” the Act. 40 U.S.C. § 121(a).
30. Such policies, and regulations established pursuant to them, are not valid unless there is a
“nexus between the regulation and some delegation of the requisite legislative authority by
Congress,” and “the reviewing court [must] reasonably be able to conclude that the grant of
authority contemplates the regulations issued.” Chrysler Corp. v. Brown, 441 U.S. 281, 304, 308
(1979). Congress did not authorize the President to issue orders with the force or effect of law, as
it authorized the GSA Administrator to do. Compare 40 U.S.C. § 121(a) (“prescribe polices and
directives”), with id. § 121(c) (“prescribe regulations”); see also Sosa v. Alvarez-Machain, 542 U.S.
692, 711 n.9 (2004) (“[W]hen the legislature uses certain language in one part of the statute and
different language in another, the court assumes different meanings were intended.”).
31. No nexus exists when the President prescribes policies that are “too attenuated to allow a
reviewing court to find the requisite connection between procurement costs and social objectives.”
Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164, 171 (4th Cir. 1981). Nor does a nexus exist when
such policies are imposed on subcontractors, who have “no direct connection to federal
procurement” and do “not lie ‘reasonably within the contemplation of’ the Procurement Act.”
Id. at 171–72.
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 7 of 34
State of Texas’s Original Complaint 8
32. The Procurement Act does not give the President “unlimited authority to make decisions
he believes will likely result in savings to the government . . . the procurement power must be
exercised consistently with the structure and purposes of the statute that delegates that power.”
Reich, 74 F.3d 1322 at 1330–31.
B. The Office of Federal Procurement Policy Act.
33. The Office of Federal Procurement Policy Act (“Procurement Policy Act”) requires that
a procurement policy, regulation, procedure, or form (including an amendment or
modification thereto) may not take effect until 60 days after it is published for public
comment in the Federal Register . . . if it—(A) relates to the expenditure of
appropriate funds; and (B)(i) has a significant effect beyond the internal operating
procedures of the agency issuing the policy, regulation, procedure, or form; or (ii)
has a significant cost or administrative impact on contractors or offerors.
41 U.S.C. § 1707(a); see also 41 U.S.C. § 401 et seq.
34. “[T]he language of [§ 1707] is broad” and applies not only to FAR but to all procurement
policies, regulations, procedures, and forms “‘down to the lowest level.’” Munitions Carriers
Conf., Inc. v. United States, 932 F. Supp. 334, 338 (D.D.C. 1996), rev’d on other grounds, 147 F.3d
1027 (D.C. Cir. 1998).
35. The notice requirement may only be “waived by the officer authorized to issue a
procurement policy, regulation, procedure, or form if urgent and compelling circumstances make
compliance with the requirements impracticable.” 41 U.S.C. § 1707(d). And even when Section
1707 has been waived, the Procurement Policy Act implementing regulations require that revisions
subject to a waiver “shall be issued on a temporary basis and shall provide for at least a 30-day
public comment period.” 48 C.F.R. § 1.501–3(b).
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State of Texas’s Original Complaint 9
C. The Federal Acquisition Regulation.
36. As the problems with continuity and coordination amongst the many federal agencies
proved problematic, in 1979 Congress directed the Office of Federal Procurement Policy
(“OFPP”), an office within the OMB, to “issue policy directives . . . for the purpose of promoting
the development and implementation of [a] uniform procurement system,” with the concurrence
of the OMB Director.
4
Under the policy directive of the Administrator of the OFPP, in 1983 the
Department of Defense, GSA, and NASA jointly promulgated the first version of the Federal
Acquisition Regulation (“FAR”).
5
37. In 1988, Congress established the FAR Council “to assist in the direction and coordination
of [g]overnment-wide procurement policy and [g]overnment-wide procurement regulatory
activities in the [f]ederal government.” 41 U.S.C. § 1302(a). The FAR Council consists of the
OFPP Administrator, the Secretary of Defense, and the Administrator of NASA, and the GSA
Administrator. 41 U.S.C. § 1302(b). Subject to limited exceptions, the FAR Council has the
exclusive authority to issue “a single [g]overnment-wide procurement regulation.” 41 U.S.C.
§ 1302(a)(1); see also 41 U.S.C. § 1303. Importantly, no other agency is authorized to issue
government-wide procurement regulations. 41 U.S.C. § 1302(a)(2).
38. Within the delegated authority relating to procurement policies, Congress requires that
“procurement policy, regulation, procedure, or form”—whether issued government-wide by the
FAR Council or by one agency for that agency—be subject to notice and comment. 41 U.S.C.
4
See Office of Federal Procurement Policy Amendments of 1979, Pub. L. No. 96-83, § 4(e), 93
Stat. 650; see also Kate M. Manual et al., Cong. Rsch. Serv., R4286, The Federal Acquisition
Regulation (FAR): Answers to Frequently Asked Questions 10 (2015),
https://sgp.fas.org/crs/misc/R42826.pdf (last visited Oct. 28, 2021).
5
48 Fed. Reg. 42, 102 (Sept. 19, 1983).
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 9 of 34
State of Texas’s Original Complaint 10
§ 1707(a)-(b). The notice and comment requirement may be waived only if “urgent and
compelling circumstances make compliance with the requirements impracticable.” 41 U.S.C.
§ 1707(d).
D. The Major Questions Doctrine.
39. Courts will not assume that Congress has assigned to Executive Branch questions of “deep
economic and political significance” unless Congress has done so expressly. See King v. Burwell,
576 U.S. 473, 486 (2015); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000).
By Defendants’ own estimates, the Contractor Mandate
6
will affect “millions” of individuals. On
average, federal government spending accounts for 20% to 25% of the U.S. economy and has been
even higher during the COVID-19 pandemic. This year alone, the U.S. Small Business
Administration announced that it awarded $145.7 billion in federal contract dollars to small
businesses.
7
Accordingly, Defendants’ vaccine mandates will have deep economic and political
significance on a substantial portion of the economy.
40. Defendants’ attempt to use the Procurement Act as justification for the Contractor
Mandate mirrors the Defendants’ attempt to use the Public Health Safety Act to justify a far-
reaching nationwide eviction moratorium. Determining that the CDC had exceeded its authority,
the Supreme Court held, “We expect Congress to speak clearly when authorizing an agency to
exercise powers of ‘vast economic and political significance.’” Ala. Ass’n of Realtors v. Dep’t of
Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (quoting Utility Air Regulatory Grp. v. EPA,
6
See Part V.B, infra.
7
Federal Government Awards Record-Breaking $145.7 Billion in Contracting to Small Businesses, July
28, 2021, https://www.sba.gov/article/2021/jul/28/federal-government-awards-record-
breaking-1457-billion-contracting-small-businesses (last visited Oct. 2, 2021).
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 10 of 34
State of Texas’s Original Complaint 11
573 U.S. 302, 324 (2014)). This is particularly true when the federal government “intrudes into
an area that is the particular domain of state law.” Id. The Supreme Court’s “precedents require
Congress to enact exceedingly clear language if it wishes to significantly alter the balance between
federal and state power and the power of the Government over private property.” Id. The
Procurement Act contains no language authorizing the President to issue and impose mandatory
nationwide public health measures.
V. FACTUAL BACKGROUND
41. Against the backdrop of this legal framework, Defendants have attempted to abuse the
federal contracting and procurement process to force potentially millions of Americans to receive
unwanted medical treatment. These efforts are already bringing acute and irreparable harm to
countless Texans, with disastrous effects looming on the horizon for the State and its citizens.
Biden Administration Response to COVID-19.
42. On January 20, 2021, his first day in office, President Biden issued Executive Order
(“EO”) 13991, 86 Fed. Reg. 7045, which established the Safer Federal Workforce Task Force
(“Task Force”) and charged it with “provid[ing] ongoing guidance to heads of agencies on the
operation of the Federal Government, the safety of its employees, and the continuity of
Government functions during the COVID-19 pandemic.” 86 Fed. Reg. at 7046. The Task Force
is headed by three co-chairs, including the Director of OPM (Defendant Ahuja), the Administrator
of GSA (Defendant Carnahan), and the COVID-19 Response Coordinator (Defendant Zients). EO
13991 also required that the GSA “provide funding and administrative support for” the Task
Force. Id.
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State of Texas’s Original Complaint 12
43. On September 9, 2021, President Biden announced his “new plan to require more
Americans to be vaccinated” by imposing “new vaccination requirements” that “require all
employers with 100 or more employees, that together employ over 80 million workers, to ensure
their workforces are fully vaccinated or show a negative test at least once a week.”
8
President Biden
also announced plans to “require vaccinations” of “those who work in hospitals, home healthcare
facilities, or other medical facilities—a total of 17 million healthcare workers.”
9
He further
announced he would “sign an executive order that will now require all executive branch federal
employees to be vaccinated – all. And I’ve signed another executive order that will require federal
contractors to do the same.”
10
Finally, President Biden announced that he would “require all of
nearly 300,000 educators in the federal paid program, Head Start program,” to get vaccinated.
11
In total, President Biden’s vaccine mandates affect over 80 million Americans, a quarter of the
total population of the United States, and one in three adult Americans.
12
44. Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases
under the Biden Administration, supports “many, many more [vaccine] mandates,”
13
but last
year, he held an entirely different position: “You don’t want to mandate and try and force anyone
8
The U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) sent
a proposed emergency regulation to the White House for review. OSHA Sends Employer Vaccine
Rule to White House for Final Review, https://news.bloomberglaw.com/daily-labor-report/osha-
sends-employer-vaccine-rule-to-white-house-for-final-review (last visited Oct. 29, 2021). The
OSHA regulation is not a party of any of the claims in this Complaint.
9
Supra n.1.
10
Id.
11
Covid-19 and the Head Start Community, https://eclkc.ohs.acf.hhs.gov/about-
us/coronavirus/vaccination-head-start-staff (last visited Oct. 29, 2021).
12
Supra, n.1.
13
Fauci: ‘Many, Many’ More Vaccine Mandates Needed to End Pandemic,
https://www.webmd.com/vaccines/covid-19-vaccine/news/20210913/fauci-many-more-
vaccine-mandates-needed-to-end-pandemic (last visited Oct. 29, 2021).
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 12 of 34
State of Texas’s Original Complaint 13
to take a vaccine. We’ve never done that.” He continued, “[A vaccine mandate] would be
unenforceable and inappropriate.”
14
45. Similarly, before September 2021, Defendants’ consistent position had been that the
federal government lacks the authority Defendants are now claiming to possess. For example, on
July 23, 2021, the White House acknowledged that imposing vaccine mandates is “not the role of
the federal government; that is the role that institutions, private-sector entities, and others may
take . . . . [W]e’re going to continue to work in partnership to fight misinformation. And we’re
going to continue to advocate and work in partnership with local officials and – and trusted voices
to get the word out.”
15
Then President-Elect Biden made nearly identical comments in response
to a question about whether COVID-19 vaccines should be made mandatory, stating: “[n]o, I don’t
think it should be mandatory. I wouldn’t demand it to be mandatory.”
16
B. The Contractor Mandate.
46. On September 9, 2021, President Biden signed EO 14042, titled Executive Order on
Ensuring Adequate COVID Safety Protocols for Federal Contractors, attached as Exhibit A.
14
Joel Saget, COVID-19 vaccine won’t be mandatory in US, says Fauci, Aug. 19, 2020,
https://www.yahoo.com/now/covid-19-vaccine-wont-mandatory-
194038185.html?guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=
AQAAAJT4sIDp7k-
tPsJykruGU6nB9lc4OF06tgUuLj_5yfA64cOBruF5BTeM3o75aTICcCOCjinKlMgTXWx5kptj
bu26VeA_XOcFLsMu7WQuJ7aLGcxG57UhmBHj6Z9SDlOwbS9i6txpMthNrALU7jblr58NVy
iAZA-WXF2HZ8rfWg-9&guccounter=2 (last visited Oct. 29, 2021).
15
Jen Psaki, White House Press Briefing (July 23, 2021), https://www.whitehouse.gov/briefing-
room/press-briefings/2021/07/23/press-briefing-by-press-secretary-jen-psaki-july-23-2021/
(last visited Oct. 27, 2021)
16
Jacob Jarvis, “Fact Check: Did Joe Biden Reject Idea of Mandatory Vaccines in
December 2020?,” Newsweek (Sept. 10, 2021), https://www.newsweek.com/fact-check-joe-
biden-no-vaccines-mandatory-december-2020-1627774 (last visited Oct. 27, 2021)
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 13 of 34
State of Texas’s Original Complaint 14
47. EO 14042 purports to “promote[] economy and efficiency in Federal procurement by
ensuring that the parties that contract with the Federal Government provide adequate COVID-19
safeguards to their workers.” Ex. A at 1. In EO 14042, President Biden claims “ensuring that
Federal contractors and subcontractors are adequately protected from COVID-19 will bolster
economy and efficiency in Federal procurement.” Id.
48. EO 14042 directs executive agencies subject to the Procurement Act to include in all
federal contracts and “contract-like instruments” a clause that contractors and subcontractors will
comply with all future guidance issued by the Task Force.
49. EO 14042 requires that the Task Force establish and issue “COVID Safety Protocols” by
September 24, 2021.
17
The EO did not explicitly make any provision for religious or medical
exemptions to the “Safety Protocols.”
50. EO 14042 further required that the Director of OMB publish a determination in the Federal
Register as to “whether such Guidance will promote economy and efficiency in Federal
contracting if adhered to by Government contractors and subcontractors.” Ex. A at 2.
51. On September 24, 2021, the Task Force released a directive to federal agencies for
implementing Defendants’ vaccine mandate on contractors and subcontractors (the “Task Force
Directive”), attached as Exhibit B.
18
This directive was never published to the Federal Register
for public comment. Among many things, the Task Force Directive included the following:
a. A deadline of December 8, 2021, for “covered contractor employees” to be fully
17
Exec. Order No. 14042, “Ensuring Adequate COVID Safety Protocols for Federal
Contractors,” 86 Fed. Reg. 50985 (Sept. 9, 2021).
18
Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal
Contractors and Subcontractors,
https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20
210922.pdf (last visited Oct. 29, 2021).
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State of Texas’s Original Complaint 15
vaccinated.
19
b. A definition of the term “covered contractor employee” to “include[] employees of
covered contractors who are not themselves working on or in connection with a covered
contract” if they are working at the same location, thus imposing vaccine requirements
on employees of contractors and subcontractors who are not even working on federal
contracts.
20
c. A requirement that the FAR Council conduct rulemaking to amend the FAR to impose
the Contractor Mandate.
21
d. A deadline of October 8, 2021, for the FAR Council to develop a contract clause to
implement the Contractor Mandate for agencies to include in contracts. The Directive
also instructs the FAR Council to “recommend that agencies exercise their authority
to deviate from the FAR” and use the vaccination mandate clause in contracts even
before the FAR is amended.
22
e. A deadline of October 15, 2021, for agencies to include that contractual clause in
solicitations.
23
f. A deadline of November 14, 2021, after which awarded contracts must include that
contractual clause. For contracts entered into between October 15, 2021, and
November 14, 2021, and for which the solicitation was issued before October 15, 2021,
the guidance states that agencies are encouraged to include the clause but are not
required to do so.
24
g. A requirement that for contracts awarded “prior to October 15 and where performance
is ongoing” the vaccine mandate clause “must be incorporated at the point at which an
option is exercised, or an extension is made.”
25
h. Requirements that the Contractor Mandate must apply even to persons who have
already been infected with COVID-19, workplace locations that are outdoors, and
contractor employees who are working remotely full time.
26
i. A statement asserting that the Task Force Directive supersedes legal requirements in
19
Id. at 5.
20
Id. at 3–4.
21
Id. at 12.
22
Id.
23
Id. at 11–12.
24
Id. at 12.
25
Id.
26
Id. at 10–11.
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State of Texas’s Original Complaint 16
states or localities that prohibit vaccine mandates.
27
52. Under the Task Force Directive, a “covered contractor employee” required to be
vaccinated is any full-time or part-time employee “working on or in connection with a covered
contract; or working at a covered contractor workplace.”
28
The guidance defines employees
working “in connection with a covered contract” as employees “who perform duties necessary to
the performance of the covered contract, but who are not directly engaged in performing the specific
work called for by the covered contract.”
29
This language suggests that an employee with even a
tangential connection to a covered contract would fall under the scope of the mandate, even if that
employee works in an office far from the contract work location.
53. Moreover, because a “covered contractor workplace” includes any location controlled by
a covered contractor where a covered contract employee is likely to be present, entire contractor
offices could be required to be vaccinated, even if only one employee has a tangential connection
to a covered contract. At the same time, a “covered contractor workplace” does not include the
residence of an individual working on a covered contract, which leads to the result that an employee
working remotely who works “on or in connection with” a covered contract is required to be
vaccinated, although a family member in the same household who works for the same contractor
(but not on a covered contract) is not. These rules and their outcomes are nonsensical and
confusing. Contractors who seek to comply with their obligations are left with little choice but to
27
Id. at 13.
28
COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors,
September 24, 2021, available at
https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20
210922.pdf (emphasis added) (last visited Oct. 29, 2021).
29
Id. (emphasis added).
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State of Texas’s Original Complaint 17
require that their entire workforce be vaccinated.
54. On September 28, 2021, Defendant Shalanda Young, the Acting Director of the OMB,
published a notice in the Federal Register
30
in which Ms. Young made the conclusory statement
that “compliance with COVID-19 related safety protocols improves economy and efficiency by
reducing absenteeism and decreasing labor costs for contractors and subcontractors working on or
in connection with a Federal Government contract.” 86 Fed. Reg. 53691, 53692. Ms. Young
provides she had “determined that compliance by Federal contractors and subcontractors with
COVID-19 workplace safety protocols detailed in the [Task Force] guidance will improve
economy and efficiency by reducing absenteeism and decreasing labor costs for contractors and
subcontractors working on or in connection with a Federal Government contract.” 86 Fed. Reg.
53691, 53692. OMB’s determination is attached as Exhibit C.
55. Ms. Young provided no evidence or citation supporting the claims in her determination.
Ms. Young’s notice was not subject to public comment. Furthermore, Ms. Young’s determination
did not claim there were any urgent and compelling circumstances in this case, and her Federal
Register notice did not include a 41 U.S.C. § 1707(d) waiver of the Procurement Policy Act
requirement that a procurement policy may not take effect until 60 days after it is published for
public comment in the Federal Register.
56. In addition, neither the Task Force Directive nor Ms. Young’s Notice addressed a host of
critical issues that are inextricably intertwined with Defendants’ alleged mission of providing
adequate health safeguards during the COVID-19 pandemic. Defendants, for example, have not
addressed—much less reasonably explained—why natural immunity should not be considered an
30
86 Fed. Reg. 53691, 53692 (Sept. 28, 2021).
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State of Texas’s Original Complaint 18
adequate alternative to vaccination. Nor would it be possible to reasonably explain away this
omission; by all indications, natural immunity confers superior resistance to COVID-19 than any
of the currently available vaccines, and one in three Americans had COVID by the end of 2020.
31
Defendants also have not addressed—much less reasonably explained—why other best practices
in fighting the spread of COVID-19 could not be used in lieu of vaccination mandates. Nor would
it be possible to reasonably explain away this omission; for example, testing has the advantage of
providing relative certainty that an individual in the workplace is not infected with COVID-19,
whereas vaccination does not provide that guarantee. Defendants likewise have not addressed—
much less reasonably explained—what accommodations should be in place for contractor
employees regarding individual preferences, healthcare needs, or religious beliefs.
C. FAR Council Directive.
57. On September 30, 2021, the FAR Council issued Class Deviation Clause 252.223–7999
(the “FAR Deviation Clause”) with an accompanying memorandum providing instructions to
implement EO 14042, attached hereto as Exhibit D.
58. The FAR Council issued these instructions and Deviation Clause to all Chief Acquisition
Officers, Senior Procurement Officers, the Defense Acquisition Regulations Council, and the
Civilian Agency Acquisition Council. The memorandum stipulated that one of the stated purposes
31
See, e.g., Meredith Wadman, Having SARS-CoV-2 once confers much greater immunity than a
vaccine—but vaccination remains vital: Israelis who had an infection were more protected against the
Delta coronavirus variant than those who had an already highly effective COVID-19 vaccine,
https://www.science.org/content/article/having-sars-cov-2-once-confers-much-greater-
immunity-vaccine-vaccination-remains-vital (last visited Oct. 29, 2021); One in Three Americans
Already Had COVID-19 by the End of 2020, https://www.publichealth.columbia.edu/public-
health-now/news/one-three-americans-already-had-covid-19-end-2020 (last visited Oct. 29,
2021).
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State of Texas’s Original Complaint 19
of the FAR Deviation Clause and guidance, which was published the next day, was to “maximize
the goal of getting more people vaccinated and decrease the spread of Covid-19.”
32
59. The FAR Deviation Clause is to be inserted into covered contracts and subcontracts. The
FAR Council also issued guidance to agencies regarding the implementation of the FAR Deviation
Clause. The Deviation Clause, when inserted into covered contracts and subcontracts, imposes
the Task Force’s requirements and also, when inserted, imposes the requirements listed on the
Task Force’s Frequently Asked Questions website.
D. The State of Texas’s Response to the COVID-19 Pandemic.
60. Since March 2020, Texas government officials have responded to the COVID-19 pandemic
with a measured and deliberate approach specific to the needs of Texas and Texans. On March 19,
2020, Governor Abbott announced the first of many Executive Orders to control and combat the
growing number of COVID-19 cases.
33
Texas has consistently sought to create a uniform response
to the pandemic in accordance with the State’s police power to protect public health and safety
while also promoting and encouraging best practices to fight the spread of COVID-19.
61. As was reported nationwide throughout 2020, the number of COVID-19 cases grew,
waned, and then grew again as summer approached, and Americans could no longer tolerate the
restrictive measures many government officials had imposed. Throughout the entirety of the
32
September 30, 2021 Memorandum: Issuance of Agency Deviation to Implement Executive
Order 14042, https://www.whitehouse.gov/wp-content/uploads/2021/09/FAR-Council-
Guidance-on-Agency-Issuance-of-Deviations-to-Implement-EO-14042.pdf (last visited Oct. 28,
2021).
33
The Governor’s Executive Orders have the force and effect of State law and have been one of
the State’s primary tools in the fight against and recovery from COVID-19. See, e.g., Tex. Gov’t
Code § 418.012.
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 19 of 34
State of Texas’s Original Complaint 20
COVID-19 pandemic, Texas state government has exercised and sought to maintain its exclusive
authority over Texas’ response to and recovery from the pandemic.
34
62. In April 2021, Government Abbott issued Executive Order GA-39, which in part ensured
that medical autonomy was up to the individual Texan by providing that no governmental entity
can compel any individual to receive a COVID-19 vaccine administered under the emergency use
authorization.
35
Recognizing that Federal Government overreach was impending and that the right
to choose whether to take the vaccine would be stripped from all Texans in some form, Governor
Abbott issued GA-40. Signed by Governor Abbott October 11, 2021, GA-40 further protects
personal liberty and autonomy and makes it illegal for any entity in Texas to compel receipt of a
COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such
vaccination “for any reason of personal conscience, based on a religious belief, or for medical
reasons, including prior recovery from COVID-19.”
36
GA-40 protects the rights of the individual
Texan and prohibits any entity from compelling receipt of a COVID-19 vaccine by any individual
who objects for any reason.
37
63. Governor Abbott and the State of Texas have made it clear to Texans: the decision whether
to receive a vaccine should be free from governmental control. In response, millions of Texans
have enthusiastically adopted best practices for public health and safety, including widespread
34
Tex. Gov’t Code § 418.002(1), (3).
35
GA-39 is publicly available at https://gov.texas.gov/uploads/files/press/EO-GA-
39_prohibiting_vaccine_mandates_and_vaccine_passports_IMAGE_08-25-2021.pdf (last
visited Oct. 29, 2021).
36
GA-40 is publicly available at https://gov.texas.gov/uploads/files/press/EO-GA-
40_prohibiting_vaccine_mandates_legislative_action_IMAGE_10-11-2021.pdf (last visited
Oct. 29, 2021).
37
Supra, n.6.
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State of Texas’s Original Complaint 21
uptake of the COVID-19 vaccine. So far in Texas, over 34 million doses of COVID-19 vaccines
have been administered, over 61% of Texans have received at least one dose of a COVID-19
vaccine, and over 53% of the total Texan population eligible for vaccines are fully vaccinated.
38
Despite Texas’s diversity and largely rural character, Texas ranks above many states in vaccination
rates—all without any government vaccine mandate.
39
E. The Effect of Defendants’ Unlawful Vaccine Mandates on Texas.
64. The State of Texas contracts and subcontracts with the federal government as a matter of
course. In the 2020-2021 fiscal year, the State of Texas, including governmental bodies of the State,
maintained a total potential value of prime contracts with the federal government in excess of $7.3
billion.
40
In the same 2020-2021 fiscal year, the State of Texas maintained a total potential value
of sub-contracts with the federal government in excess of $20.3 million.
41
The State of Texas
expects to continue to pursue government contracts in the future. However, if the State of Texas
does not acquiesce to the federal government’s coercion, the State of Texas stands to lose over
$7.32 billion in future contracts.
42
65. Additionally, the State of Texas faces an impending labor shortage as federal labor walk-
outs and strikes continue to occur as a result of the federal vaccine mandates—potentially leading
to significant, concrete financial harm to the State in the form of unemployment benefits and
38
Texas Coronavirus Vaccination Progress, https://usafacts.org/visualizations/covid-vaccine-
tracker-states/state/texas (last visited Oct. 28, 2021).
39
See, e.g., U.S. COVID-19 vaccine tracker, Mayo Clinic,
https://www.mayoclinic.org/coronavirus-covid-19/vaccine-tracker (lasted visited Oct. 29,
2021); COVID-19 Vaccinations in the United States, CDC, https://covid.cdc.gov/covid-data-
tracker/#vaccinations_vacc-total-admin-rate-total (last visited Oct. 29, 2021).
40
USA Spending, https://www.usaspending.gov/search (last visited Oct. 28, 2021)
41
Id.
42
Id.
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State of Texas’s Original Complaint 22
increased Medicaid expenses. Effects on the Texas labor force since the September 9, 2021 federal
vaccine mandates include:
a. Southwest Airlines Pilot Association, representing 9,000 Southwest pilots, filed suit to
block the vaccine mandate which unilaterally altered the collective bargaining
agreement imposing new conditions of employment.
43
As a result of this federal
overreach, one weekend in early October saw over 2,500 nationwide flights cancelled.
b. Organizations representing nursing homes in Texas, who accept both federal Medicare
and Medicaid funding, came out with justifiable concerns that “singling out nursing
home staff for required vaccinations could exacerbate an already untenable workforce
shortage.”
44
c. Texas Tech University, a public University in the State of Texas, stands to lose over
$7 million from federal contracts if they do not adopt the contract amendments. Texas
Tech University undergraduate and graduate students will be negatively impacted by
this loss of funding. Declaration of Texas Tech University Vice Chancellor and General
Counsel, attached as Exhibit E.
d. A recent study published by the Job Creator’s Network, a non-partisan organization
representing the nearly 85 million Americans that depend on small business, found that
companies are losing over 30% of the workforce due to the vaccine mandate.
45
e. The Chief Executive of Raytheon Technologies, a defense-contractor with offices in
Dallas, Texas recently announced they expect to lose “several thousand people” due
to the vaccine mandates. Raytheon anticipates the vaccine mandate will cause further
“disruption” in the current supply chain crisis.
46
43
Sw. Pilots Ass’n v. Sw. Airlines, Cause No. 3:21-cv-02608-M, pending in the U.S. District Court
for the Northern District of Texas.
44
Vaccine Mandate Could Make Nursing Home Staff Shortage Worse, September 10, 2021,
https://www.newswest9.com/article/news/health/coronavirus/vaccine/vaccine-mandate-
nursing-home-staff-shortage/513-02e9c098-14c3-4311-bfc5-e8144c8fe1b3 (last visited Oct. 28,
2021).
45
Job Creators Network says companies losing 30% of workforce due to vaccine mandate,
https://katv.com/news/nation-world/job-creators-network-says-companies-losing-30-of-
workforce-due-to-vaccine-mandate (last visited Oct. 28, 2021).
46
Raytheon warns of worker losses as companies impose vaccine mandate,
https://www.reuters.com/business/healthcare-pharmaceuticals/raytheon-will-lose-several-
thousand-workers-due-covid-19-vaccine-mandate-ceo-2021-10-26/ (last visited Oct. 29, 2021).
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 22 of 34
State of Texas’s Original Complaint 23
f. Nationally, business groups representing millions of workers have warned of “mass
layoffs” and “catastrophic” supply chain disruptions caused by the vaccine
mandates.
47
g. In Amarillo, Texas, the community has protested Defendants’ vaccine mandate being
enforced at a Bell Helicopter facility, where workers must be fully vaccinated before
December 8 or face termination. Texans were quoted as saying that “[i]t’s our choice
as to what medical treatments we want to have and it’s not the governments choice to
push them upon us” and that “[a] lot of us here are willing to lose our jobs over this.”
48
66. These are just a handful of examples that demonstrate the harms that Defendants’ unlawful
and coercive tactics are already having on the State of Texas and on its citizens, businesses, and
agencies. Upon information and belief, other federal contractors within the State have been and
will continue to be targeted and threatened by various federal agencies if they refuse to abide by
Defendants’ unilateral policy impositions.
67. Defendants’ ability to threaten contract termination for any contractor who fails to comply
leaves federal contractors with no ability to stand up for themselves. In the face of Defendants’
unlawful overreach, contractors face the same choice that they are forced to impose on their
employees: accept the unlawful conditions imposed by Defendants or risk the federal contracts that
may form the foundation of their businesses.
68. Moreover, the threat of retribution exists for even daring to resist Defendants’ cozenage
and ruthless tactics, chilling contractors’ ability to stand up for themselves in court. Because of the
47
Business group warns of mass layoffs and ‘catastrophic’ supply chain disruptions from Biden
vaccine mandate, https://www.cnn.com/2021/10/22/business/vaccine-supply-chain-
biden/index.html (last visited Oct. 29, 2021).
48
Taylor Mitchell, “Amarillo Bell Helicopter employees hold peaceful protest regarding COVID-
19 vaccine mandate,” KFDA (Oct. 20, 2021), available at
https://www.newschannel10.com/2021/10/21/amarillo-bell-helicopter-employees-hold-
peaceful-protest-regarding-covid-19-vaccine-mandate/ (last visited Oct. 29, 2021).
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 23 of 34
State of Texas’s Original Complaint 24
threat of retribution, it makes no economic or logical sense for a federal contractor to challenge
Defendants’ actions. Even if the contractor were to succeed in Court, it would still stand to
permanently lose federal contracts and all associated sources of revenue. That is because the
federal government exercises substantial discretion when it awards contracts, and any contractor
that sued the administration over this politically charged issue—or any issue of political
significance in the future, even under a different federal administration—would risk that discretion
being used against it in future bidding for contracts. Accordingly, the State itself is also a voice for
the countless Texans who will have their liberties—or their livelihoods—destroyed by
Defendants’ illegal actions.
VI. CLAIMS FOR RELIEF
COUNT 1
Ultra Vires Acts of the President
69. The allegations in each of the preceding paragraphs are expressly incorporated herein as if
restated in full.
70. The purpose of the Procurement Act is to provide the Federal Government with an
“economical and efficient system” for, among other things, procuring and supplying property and
nonpersonal services. 40 U.S.C. § 101. The Procurement Act permits the President to prescribe
certain policies and directives within the scope of the Act. 40 U.S.C. § 121. The President’s power
under the Procurement Act must be exercised consistently with the structure and purposes of the
statute that delegates that power—namely, efficiency and economy in procurement.
71. Executive Orders issued pursuant to the President’s authority under the Procurement Act
are subject to judicial review. Reich, 74 F.3d at 1330. The President may only issue executive orders
that have a nexus to the purposes of the Procurement Act. When the President exceeds his
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State of Texas’s Original Complaint 25
authority under the Procurement Act, the President acts ultra vires and the Executive Order may
be deemed unconstitutional.
72. There is no articulable nexus between Executive Order 14042 or the Task Force Directive
the Executive Order required and the Procurement Act’s purpose of providing an “economical
and efficient system” of procurement. 40 U.S.C. § 101. In fact the Contractor Mandate will have
a deleterious effect on economy and efficiency by causing large-scale resignations or layoffs of
unvaccinated employees of federal contractors. A mandate requiring vaccination has no direct
connection to federal procurement and does not lie reasonably within the contemplation of the
Procurement Act.
73. Defendant’s attempt to impose sweeping controls on one-fourth of the economy via
procurement is a question of deep economic and political significance, and Congress did not
intend—nor does the Procurement Act allow—the President to exercise such sweeping authority
under the guise of “procurement” in the absence of clear and explicit congressional authorization.
Such arrogation of power violates the Major Questions Doctrine.
74. The President has acted ultra vires in issuing EO 14042 and imposing the Contractor
Mandate.
COUNT 2
Failure to Conduct Notice and Comment
Violation of the Procurement Policy Act
(OMB Rule and Task Force Directive)
75. The allegations in each of the preceding paragraphs are expressly incorporated herein as if
restated in full.
76. Under 41 U.S.C. § 1707(a)-(b), procurement “polic[ies], regulation[s], procedure[s], or
form[s]” must go through notice and comment if it “relates to the expenditure of appropriated
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State of Texas’s Original Complaint 26
funds” and either “has a significant effect beyond the internal operating procedures of the agency
issuing the policy, regulation, procedure, or form” or has “a significant cost or administrative
impact on contractors or offerors.”
77. Both the Task Force Directive and the OMB Rule adopting the Task Force Directive are
subject to each of these requirements. No officer authorized to issue a procurement policy,
regulation, or procedure invoked the waiver exception codified in 41 U.S.C. § 1707(d); see also id.
§ 1707(e) (stipulating that a procurement policy for which the requirements of subsections (a) and
(b) have been waived is only effective on a temporary basis and the agency must provide a 30-day
public comment period after it becomes effective). Indeed, the government’s failure to invoke the
waiver exception demonstrates that there exists no reason that the requirements of notice and
comment were impracticable.
78. The OMB Rule and Task Force Directive were issued in violation of the procedural
requirements of the Policy Procurement Act.
COUNT 3
Arbitrary and Capricious Agency Action
(OMB Rule)
79. The allegations in each of the preceding paragraphs are expressly incorporated herein as if
restated in full.
80. The OMB is an agency within the Executive Office of the President.
81. Under the APA, a court must “hold unlawful and set aside agency action” that is “arbitrary
and capricious.” See 5 U.S.C. § 706 (2)(A). “[A]gency action” is defined as “the whole or a part
of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to
act.” Id. § 551(13). An agency “rule” is defined as “the whole or a part of an agency statement of
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State of Texas’s Original Complaint 27
general or particular applicability and future effect designed to implement, interpret, or prescribe
law or policy or describing the organization, procedure, or practice requirements of an agency.”
Id. § 551(4).
82. An agency action is arbitrary or capricious if it fails to “articulate a satisfactory explanation
for its action including a rational connection between the facts found and the choice made.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
83. The OMB Rule contains no explanation or reasoning at all. 86 Fed. Reg. at 53,691–92.
Mere executive fiat falls well short of the requirement of a “satisfactory explanation.”
84. The OMB Rule is arbitrary and capricious and must be set aside.
COUNT 4
FAR Council Directive and Deviation Clause Exceeds
Statutory Authority and Is Not in Accordance with Law
85. The allegations in each of the preceding paragraphs are expressly incorporated herein as if
restated in full.
86. While the FAR Council clams to be issuing only “guidance,” the guidance is being
“applied . . . in a way that indicates it is binding.” Texas v. EEOC, 933 F.3d 433, 441 (5th Cir.
2019). Therefore, the FAR Council Guidance is an agency action subject to judicial review under
the APA.
87. Under the APA, a court must “hold unlawful and set aside agency action” that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in
excess of statutory . . . authority, or limitations, or short of statutory right.” See 5 U.S.C. §
706(2)(A), (C).
88. The FAR Council exists to promulgate procurement policy. 41 U.S.C. § 1302.
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State of Texas’s Original Complaint 28
89. The FAR Council Guidance admits that it is issued to further the goal of the Task Force
Directive and Executive Order, namely, to “get[] more people vaccinated.” FAR Council
Guidance at 1, 3. There is no connection between this requirement and the legitimate procurement
policy objectives authorized by law.
90. The FAR Council did not act in accordance with the law and exceeded its statutory
authority when it issued the Guidance and Deviation Clause creating a government-wide policy
mandating vaccines for contractors.
COUNT 5
Failure to Conduct Notice and Comment
(FAR Council Guidance and Deviation Clause)
91. The allegations in each of the preceding paragraphs are expressly incorporated herein as if
restated in full.
92. As discussed in Count 2, 41 U.S.C § 1707(a)–(b) requires procurement “polic[ies],
regulation[s], procedure[s], or form[s]” to go through notice and comment.
93. While agencies are treating the FAR Council Guidance as binding, even if it were not
binding, 41 U.S.C. § 1707(a)–(b) requires policies to go through notice and comment.
94. A FAR deviation is a procurement policy, regulation, procedure or from that requires
notice and comment.
95. Because the FAR Council Deviation Clause was issued without notice and comment, it is
invalid and must be set aside.
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State of Texas’s Original Complaint 29
COUNT 6
Carnahan, Nelson, and Austin Acted Ultra Vires in Promulgating
the FAR Guidance and Deviation Clause.
96. The allegations in each of the preceding paragraphs are expressly incorporated herein as if
restated in full.
97. Under 41 U.S.C. §§ 1301–1303(a), the Administrator of General Services, the Secretary
of Defense, and the Administrator of NASA constitute the FAR Council, and the FAR Council is
authorized to “jointly issue and maintain . . . a single Government-wide procurement regulation,
to be known as the Federal Acquisition Regulation.”
98. The FAR Council is charged with “manag[ing], coordinat[ing], control[ing], and
monitor[ing] the maintenance of, issuance of, and changes in, the [FAR].” 41 U.S.C. § 1303(d).
99. As discussed in Count 4, the FAR Council did not act in accordance with the law and
exceeded its statutory authority when it issued the Guidance and Deviation Clause creating a
government-wide policy mandating vaccines for contractors.
100. Defendants Carnhan, Nelson, and Austin, as the Administrator of General Services, the
Secretary of Defense, and the Administrator of NASA, respectively, acted ultra vires and exceeded
the scope of their statutory authority.
COUNT 7
Violation of the U.S. Constitution, Art. I, §1
Unconstitutional Delegation of Legislative Power
101. The allegations in each of the preceding paragraphs are expressly incorporated herein as if
restated in full.
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State of Texas’s Original Complaint 30
102. Pursuant to Article I, § 1 of the U.S. Constitution, “[a]ll legislative powers herein granted
shall be vested in a Congress of the United States.” Under Article I, § 1 only Congress may engage
in lawmaking.
103. “Congress is not permitted to abdicate or to transfer to others the essential legislative
functions with which it is thus vested.” A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495, 529–30 (1935).
104. The nondelegation doctrine bars Congress from transferring its legislative power to another
branch of Government.
105. While Congress may delegate power to executive agencies, the statutory delegation must
include an intelligible principle to which the delegee “is directed to conform.” J.W. Hampton, Jr.,
& Co v. U.S., 276 U.S. 394, 409 (1928).
106. The nondelegation doctrine is based on the principle of preserving the separation of
powers.
107. The President’s delegation in EO 14042 to the OMB Director and Task Force and indirect
delegation to the agencies of such broad authority and discretion is not supported by a statutory
directive within the Procurement Act or any other federal law. The precatory statement or purpose
in the Procurement Act is not a clear directive, and the President cannot rely on it to impose an
intrusive and sweeping vaccine mandate.
108. The President’s actions lack the requisite congressional direction to support such a broad
delegation of power for two reasons. First, Congress’ grant of authority to the President in the
Procurement Act does not provide any basis that authorizes the President to implement a national
vaccination mandate scheme by executive order. Second, even if 40 U.S.C. § 121(a) could be read
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State of Texas’s Original Complaint 31
in such a way as to show that Congress had clearly authorized the President to implement a national
vaccination mandate for federal contractors, Congress did not articulate an intelligible principle
authorizing the President to delegate legislative judgment to the Task Force or the OMB Director.
109. Without explicit congressional authorization, the President’s delegation of power in the
Executive Order and through the OMB Determination and the Task Force is an unconstitutional
delegation of legislative authority which cannot survive constitutional scrutiny.
COUNT 8
Violation of the U.S. Constitution
Unconstitutional Exercise of the Spending Power
110. The allegations in each of the preceding paragraphs are expressly incorporated herein as if
restated in full.
111. EO 14042, the OMB Rule, the Task Force Directive, and the FAR Council Guidance and
Deviation Clause are unconstitutional conditions on the State’s receipt of federal funds.
112. “[I]f Congress intends to impose a condition on the grant of federal moneys, it must do so
unambiguously,” so “States [can] exercise their choice knowingly.” Pennhurst State Sch. & Hosp.
v. Halderman, 451 U.S. 1, 17 (1981). The executive branch cannot impose conditions on spending
that the Constitution would prohibit it from imposing directly, because that authority belongs to
Congress. See id. at 17.
113. Federal contracts are an exercise of the Spending Clause, yet the challenged actions ask
Texas to agree to an ambiguous contract term—specifically, agreeing to comply with uncertain
Task Force Directive and FAR Guidance and Deviation Clause that were not issued in accordance
with the law. Moreover, the Contractor Mandate could not be imposed directly by Defendants in
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State of Texas’s Original Complaint 32
accordance with the Constitution, and therefore it cannot be imposed as a condition of federal
contracting and procurement regulation.
114. The Contractor Mandate exceeds the authority granted to the federal government by the
constitution.
VII. DECLARATORY JUDGMENT
115. The allegations in each of the preceding paragraphs are expressly incorporated herein as if
restated in full.
116. The federal Declaratory Judgment Act authorizes federal courts to declare the rights of
litigants. 28 U.S.C. § 2201. The issuance of a declaratory judgment can serve as the basis for an
injunction to give effect to the declaratory judgment. Steffel v. Thompson, 415 U.S. 452, 461 n. 11
(1974).
117. For the reasons described in each of the previous counts, Texas is entitled to a declaratory
judgment that the Defendants are violating the law and the Contractor Mandate is unlawful,
unconstitutional, and unenforceable.
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State of Texas’s Original Complaint 33
VIII. PRAYER FOR RELIEF
For these reasons, Plaintiff State of Texas respectfully requests that the Court:
i. Hold unlawful and set aside the Executive Order, the OMB Rule, the FAR Council
Directive and Deviation Clause, and the Task Force Directive.
ii. Issue declaratory relief declaring the Defendants’ actions unlawful.
iii. Issue preliminary and permanent injunctive relief enjoining Defendants from enforcing the
Executive Order, the OMB rule, the Task Force Directive, and the FAR Council Directive
and Deviation Clause.
iv. Award Plaintiff costs and reasonable attorneys’ fees.
v. Award such other relief as the Court deems equitable and just.
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 33 of 34
State of Texas’s Original Complaint 34
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy First Assistant Attorney General
SHAWN COWLES
Deputy Attorney General for Civil
Litigation
THOMAS A. ALBRIGHT
Chief, General Litigation Division
/s/ Christopher D. Hilton
CHRISTOPHER D. HILTON
Deputy Chief, General Litigation Division
Texas State Bar No. 24087727
HALIE ELIZABETH DANIELS
Assistant Attorney General
Texas State Bar No. 24100169
Halie.Daniels@oag.texas.gov
AMY SNOW HILTON
Assistant Attorney General
Texas State Bar No. 24097834
Amy.Hilton@oag.texas.gov
Office of the Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
ATTORNEYS FOR PLAINTIFF
Case 3:21-cv-00309 Document 1 Filed on 10/29/21 in TXSD Page 34 of 34
