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Georgia Sdga 1 21 Cv 00163 11Th 21 14269 Doc 019 Att 0
Summary
A plaintiffs' motion for preliminary injunction and brief in support, filed November 5, 2021 as Document 19 in The State of Georgia, et al. v. Joseph R. Biden, Civil Action No. 1:21-cv-163-RSB-BKE, in the U.S. District Court for the Southern District of Georgia, Augusta Division. The brief challenges what it calls the Contractor Mandate: Executive Order 14042, the Safer Federal Workforce Task Force guidance, the FAR Council's Class Deviation Clause 52.223-99, and an Office of Management and Budget determination. It argues the mandate exceeds the President's authority under the Procurement Act, 40 U.S.C. § 121, was adopted without notice-and-comment rulemaking, and is unconstitutional. It states the full-vaccination deadline was extended from December 8, 2021 to January 4, 2022, and asks for relief no later than December 7, 2021. The brief is 35 pages.
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No. 1:21-cv-00163-RSB-BKE · Doc. 19 · Docket on CourtListener
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Case 1:21-cv-00163-RSB-BKE Document 19 Filed 11/05/21 Page 1 of 35
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
The State of Georgia, et al.,
Plaintiffs,
v.
Joseph R. Biden in his official capacity as Civil Action No. 1:21-cv-163-RSB-BKE
President of the United States, et al.,
Defendants.
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND BRIEF IN
SUPPORT
Case 1:21-cv-00163-RSB-BKE Document 19 Filed 11/05/21 Page 2 of 35
TABLE OF CONTENTS
INTRODUCTION ........................................................................................................ 3
BACKGROUND AND STATEMENT OF FACTS ................................................... 6
A. President Biden establishes the Safer Federal Workforce
Task Force .............................................................................................. 6
B. President Biden issues Executive Order 14042 ............................. 7
C. The Task Force issues the mandatory, binding guidance ........... 8
D. Agency implementation....................................................................... 9
E. Plaintiffs’ roles as federal contractors........................................... 11
LEGAL STANDARD ................................................................................................. 14
ARGUMENT ............................................................................................................... 14
I. Plaintiffs are likely to succeed on the merits............................... 14
A. The Contractor Mandate exceeds the President’s
authority under the Procurement Act. ............................... 14
1. The Procurement Act does not give the President
unlimited authority.............................................................. 14
2. The Contractor Mandate is beyond the President’s authority
under the Procurement Act. ................................................. 16
B. The Contractor Mandate is unlawful for failure to follow
notice-and-comment rulemaking requirements. .............. 19
1. The Procurement Policy Act requires the administration to
submit the Task Force Guidance and the FAR Deviation
Clause to notice and comment rulemaking. ........................ 19
2. The FAR Council failed to provide public notice and
comment to implement the Contractor Mandate. ............... 21
C. If the Procurement Act authorizes the Contractor
Mandate, then the Procurement Act and the Mandate are
unconstitutional. ...................................................................... 23
1. The Procurement Act and the Mandate are unconstitutional
under the non-delegation doctrine. ...................................... 23
2. The Procurement Act and the Mandate are unconstitutional
because they exceed Congress’ authority. ............................ 26
II. Plaintiffs Will Suffer Substantial and Irreparable Harm
Absent Preliminary Relief ............................................................... 27
III. The Balance of Equities and Public Interest Favors Granting
Preliminary Relief .............................................................................. 31
CONCLUSION ........................................................................................................... 32
ii
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INTRODUCTION
This case is not about whether vaccines are good or bad. This case is about the
Biden Administration unilaterally imposing a mass vaccine mandate beyond the
scope of permissible presidential power, thereby cutting the States out of their central
role in deciding whether to impose a vaccination mandate by administrative fiat. In
mid-July, the Administration correctly explained it was “not the role of the federal
government” to mandate vaccinations.1 Yet, less than two months later, President
Biden issued the Contractor Mandate,2 federally mandating the mass vaccination of
employees of federal contractors and subcontractors, without regard to the immense
burden on federal contractors caused by an already-existing labor shortage. The
Administration was right when it explained that it had no authority to mandate
vaccinations in July, and its subsequent actions are illegal and unconstitutional. The
illegal Contractor Mandate purports to impose a full-vaccination requirement by
January 4, 2022. Executive Order 14042 set the original deadline for full vaccination
of covered contractor employees as December 8, 2021.
1 Office of Public Engagement, Transcript, Press Briefing by Press Secretary Jen Psaki (July 23, 2021),
https://bit.ly/303pHZt (last visited Nov 5, 2021).
2 As used herein, the “Contractor Mandate” or “Mandate” refers to (1) Executive Order 14042:
“Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” (2) the
Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors
and Subcontractors which sets out the specifics of the mass vaccination and other Covid-related
requirements imposed on federal contractors, (3) the Federal Acquisition Registry Council’s (“FAR
Council”) Class Deviation Clause 52.223-99, the contract clause federal agencies are ordered to insert
into contracts to require that federal contractors follow the guidance requiring mass vaccination and
other Covid-related requirements, and (4) the Office of Management and Budget’s Determination of
the Promotion of Economy and Efficiency in Federal Contracting Pursuant to Executive Order No.
14042, which purports to bless the Safer Federal Workforce Task Force guidance requiring that federal
contractors follow mass vaccination and other Covid-related requirements.
3
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On November 4, 2021, the original December 8, 2021 deadline was extended to
January 4, 2022—not through executive order, not through the Task Force Guidance,
not through an OMB determination, but through a White House press release. Office
of Public Engagement, Fact Sheet: Biden Administration Announces Details of Two
Major Vaccination Policies (Nov. 4, 2021), https://bit.ly/3C19fpT (last visited Nov. 5,
2021). As a result, Plaintiffs respectfully request that this Court enter a preliminary
injunction no later than December 7, 2021, the date on which federal contractor
employees would be required to receive a first dose of the Moderna vaccine.
The Contractor Mandate is overtly unlawful and unconstitutional for multiple,
independent reasons. The Federal Property and Administrative Services Act, 40
U.S.C. § 121 (the “Procurement Act”), the authority under which President Biden
purported to issue the Mandate, does not grant him the vast authority to mandate
vaccinations for all employees of federal contractors and subcontractors. Further, the
Administration never put the Contractor Mandate through the rigors of notice-and-
comment, contrary to the clear requirements of the Office of Federal Procurement
Policy Act, as well as the similar requirements applicable to the actions of the Federal
Acquisition Regulatory Council (“FAR Council”) and the Office of Management and
Budget (“OMB”). In addition to its statutory and regulatory failings, the Contractor
Mandate also unconstitutionally violates separation of powers by imposing a
nationwide vaccination mandate for federal contractors without any authority
grounded in the Constitution or any intelligible guiding principle from Congress.
The Mandate imposes massive, irreparable harm on the State Plaintiffs, which
all have instrumentalities and agencies that serve as federal contractors and
4
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subcontractors. Under the Contractor Mandate, Plaintiffs’ employees must be
vaccinated or terminated—regardless of whether they work on federal contracts—if
there is a chance they may come in contact with an employee who is working on a
federal contract. There are no exceptions for employees who work alone, work
outside, or work solely remotely, and there is no allowance for even minimal contact
without falling within the coercive requirements of the Mandate, even if the
employees simply walk past other employees outside, in a parking lot. The
Contractor Mandate does not give federal contractor employees the option to
regularly test for COVID-19 instead of being vaccinated or permit alternative safety
precautions such as social distancing.
The Administration has given federal contractors, including Plaintiffs, an
impossible timeline to comply with the Mandate’s illegal terms. The Mandate
requires all federal contractors to comply fully by January 4—meaning that every
unvaccinated federal contractor employee must obtain their final vaccine dose by that
date. That timeline is unworkable, especially given the number of covered employees
to be vaccinated, the data collection and reporting requirements imposed on federal
contractors, and the ambiguities in, and ever-changing nature of, the guidance.
The harms that the Mandate will impose on Plaintiff States, absent this
Court’s immediate action, are staggering. Plaintiffs receive billions of dollars under
federal contracts.3 Absent immediate relief from this Court, the Contractor Mandate
3 See, e.g., Declaration of Jason Guilbeault (“AU Dec.”), Exhibit 1, at ¶ 7 ($17.1 million); Declaration
of Michael P. Shannon (“GA Tech Dec.”), Exhibit 2, at ¶ 7 ($663.8 million); Declaration of Jill Tincher
(“UGA-1 Dec.”), Exhibit 3, at ¶ 6 ($56 million); Declaration of Kathleen E. Toomey (“GDPH Dec.”),
Exhibit 4, at ¶ 4 (two contracts totaling $2.9 million); Declaration of James B. Aydelotte (“BVRHS
Dec.”), Exhibit 5, at ¶ 12 ($338,700); Declaration of Torrey E. Lawrence (“UI Dec.”), Exhibit 6, at ¶ 5
5
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will put Plaintiffs in an impossible position: they must comply with the Mandate,
which may not be possible absent termination of all unvaccinated employees, or risk
losing billions of dollars in federal funding. For these reasons, Plaintiffs have no
choice but to seek a preliminary injunction from this Court.4
BACKGROUND AND STATEMENT OF FACTS
A. President Biden establishes the Safer Federal Workforce Task
Force
In January 2021, President Biden established the Safer Federal Workforce
Task Force (“Task Force”) by executive order. Exec. Order No. 13991, Executive Order
on Protecting the Federal Workforce and Requiring Mask-Wearing, 86 Fed. Reg. 7045
(Jan. 20, 2021) (“EO 13991”). The Task Force’s mission is to “provide 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.” Id. The Task Force’s guidance must include “public health best practices
as determined by the CDC,” and further guidance on COVID-19 testing, vaccination,
transmission, and workplace best practices, among other things. Id. The President
did not purport to issue EO 13991 or create the Task Force under his Procurement
($22 million); Declaration of Jane Elizabeth Burdeshaw (“ADRS Dec.”), Exhibit 7, at ¶¶ 7, 9 ($13.4
million); Declaration of Matthew K. Wilde (“BSU Dec.”), Exhibit 8, at ¶ 5 ($25 million); Declaration of
Donna Lybecker (“ISU Dec.”), Exhibit 9, at ¶ 5 ($23 million); Declaration of Finis E. St. John IV (“UAS
Dec.”), Exhibit 10, at ¶ 6 ($663 million for the University of Alabama, the University of Alabama
Birmingham, and the University of Alabama Huntsville); Declaration of Nathan Checketts (“UDOH
Dec.”), Exhibit 11, at ¶ 5 ($811,000.00).
4 The Contractor Mandate has been challenged in several lawsuits in other districts. Five such
challenges are: State of Texas v. Biden et al., No. 3:21-cv-00309 (S.D. Tx.); State of Texas v. Nelson et
al., No. 8:21-cv-02524 (M.D. Fl.); State of Missouri et al. v. Biden et al., no. 4:21-cv-01300 (E.D. Mo.);
Brnovich et al. v. Biden et al., No. 2:21-cv-01568 (D. Az.); and Commonwealth of Kentucky et al. v.
Biden et al., No. 3:21-cv-00055 (E.D. Ky.).
6
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Act Authority, 40 U.S.C. § 121. And at least until September 2021, none of the Task
Force’s operations had anything to do with federal contracting.
B. President Biden issues Executive Order 14042
On September 9, 2021, President Biden announced that his patience was
“wearing thin” with unvaccinated Americans. Office of Public Engagement,
Transcript, Remarks by President Biden on Fighting the COVID-19 Pandemic (Sept.
9, 2021), https://bit.ly/3wgXRVr. President Biden generalized that “[m]any of us are
frustrated with the nearly 80 million Americans who are still not vaccinated.” Id. As
a result, President Biden signed Executive Order 14042, Executive Order on Ensuring
Adequate COVID Safety Protocols for Federal Contractors (“EO 14042” or “Order”).
See EO 14042, attached to Declaration of Charles Peeler (“Peeler Dec.”), Exhibit 12,
as Ex. A. In that Order, President Biden relied on the Procurement Act to direct
federal agencies to implement a mass vaccination requirement for all employees of
federal contractors and subcontractors. Id. at 1. EO 14042 set forth a series of
conclusory assertions without any factual support in an effort to frame the Order as
promoting “economy and efficiency in Federal Procurement.” Id. According to the
President, the implementation of vaccine mandates “will decrease worker absence,
reduce labor costs, and improve the efficiency of contractors and subcontractors at
sites where they are performing work for the Federal Government.” Id.
President Biden’s implementation plan had several layers. Id. First, he
directed the Task Force to prescribe COVID-19 guidance for federal contractors. Id.
Next, he directed the OMB Director to “determine whether the Task Force guidance
would “promote economy and efficiency in Federal contracting,” and if so, to publish
7
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her determination in the Federal Register. Id. This OMB “determination,” however,
was a foregone conclusion. Before President Biden turned this “determination” over
to the OMB Director, President Biden had already declared “[t]his order promotes
economy and efficiency in Federal procurement. . . .” Id. President Biden further
directed that once the OMB Director rubberstamped the Task Force guidance:
All executive agencies subject to the Procurement Act must include a
clause in their contracts that requires contractors and all subcontractors
to comply with all present and future guidance issued by the Task Force;
The FAR Council must amend the FAR to include the same clause; and
Agencies should ensure that any contracts not governed by the FAR
contain the same clause. Id.
C. The Task Force issues the mandatory, binding guidance
On September 24, 2021, the Task Force issued COVID-19 Workplace Safety:
Guidance for Federal Contractors and Subcontractors (“Task Force Guidance”).
Peeler Dec. at Ex. B. Among other things, the Task Force Guidance—which, again,
is mandatory for all federal agencies under Executive Order 14042—requires federal
contractors and subcontractors to ensure their employees are vaccinated and that “all
individuals, including covered contractor employees and visitors, comply with
published CDC guidance for masking and physical distancing at a covered contractor
workplace.” Id. at 6. Contractual obligations requiring federal contractors to comply
with the CDC guidance are effective immediately. To comply with the President’s
revised deadline for vaccination, all “covered contractor employees” must receive the
final dose of the COVID-19 vaccine by January 4, 2022. See Supra Introduction.
8
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Thus, to comply with the January 4 deadline, covered employees must obtain their
first dose of the Moderna vaccine by December 7, 2021, their first dose of the Pfizer
vaccine by December 14, 2021, or the single dose of the Johnson & Johnson vaccine
by January 4, 2022. Centers for Disease Control and Prevention, Different COVID-
19 Vaccines, (Oct. 20, 2020), https://bit.ly/3wphNWb.
The scope of the Mandate is staggering. A “covered contractor employee” is
“any full-time or part-time employee of a covered contractor” who is working “at a
covered contractor workplace.” Peeler Dec., Ex. B at 3–4. The definition of a “covered
contractor workplace” requires employees who do not work on federal contracts to be
vaccinated unless a federal contractor “can affirmatively determine that none of its
employees on another floor or in separate areas of the building will come into contact
with” an employee who works on federal contracts. Id. at 10. Thus, the mandate
“includes employees of covered contractors who are not themselves working on or in
connection with a covered contract.” Id. at 4. Under the current guidance, federal
contractors with multiple buildings must affirmatively determine that there will be
no interaction between covered contractor employees and non-covered contractor
employees—even in common areas like lobbies, elevators, stairwells, and parking
garages—or the non-covered employees may also have to be vaccinated.
D. Agency implementation
As the President directed in EO 14042, the OMB Director published a
determination in the Federal Register on September 28, 2021, stating, in conclusory
fashion, that “compliance by Federal contractors and subcontractors with the COVID-
19-workplace safety protocols detailed in that guidance will improve economy and
9
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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. 53,691 (Sept. 28, 2021) (the “OMB Determination”); see Peeler Dec. at Ex.
C. The Director referenced no research or data to support her conclusion and there
was no opportunity for the public to comment or submit data.
Both EO 14042 and the Task Force Guidance provided that the FAR Council5
must conduct a “rulemaking” to amend the FAR6 to require federal contractors to
comply with the Task Force Guidance. Peeler Dec. at Exs. A and B. The Guidance
further recommended that prior to the FAR rulemaking, agencies should “exercise
their authority to deviate from the FAR” to implement their own vaccine mandates.
Peeler Dec. at Ex. B. at 12, Q15.
On September 30, 2021, in response to EO 14042, the Task Force Guidance,
and the OMB Determination, the FAR Council issued Class Deviation
Clause 52.223-99 (“FAR Deviation Clause”) with accompanying guidance. Peeler
Dec. at Ex. D. The FAR Deviation Clause commits the contractor to complying “with
all guidance, including guidance conveyed through Frequently Asked Questions, as
amended during the performance of this contract, for contractor or subcontractor
workplace locations published by the Safer Federal Workforce Task Force (Task Force
Guidance) at https:/www.saferfederalworkforce.gov/contractors/.” Id. The FAR
5 The Federal Acquisition Regulatory Council was established to assist in the direction and
coordination of Government-wide procurement policy and Government-wide procurement regulatory
activities in the Federal Government, in accordance with Title 41, Chapter 7, Section 421 of the Office
of Federal Procurement Policy (“OFPP”) Act.
6 The Federal Acquisition Regulation (“FAR”) is the primary regulation for use by all executive
agencies in their acquisition of supplies and services with appropriated funds. See, e.g.,
https://bit.ly/3BKz39j.
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Council never published the FAR Deviation Clause in the Federal Register for the
purpose of receiving public comment. Several agencies, including NASA, DOD, CDC,
USDA, GSA, and others, have now implemented the FAR Deviation Clause by issuing
memoranda requiring compliance with the Mandate. See, e.g., Declaration of
Catherine Mochan Donald (“ADPH Dec.”), Exhibit 13, at ¶ 15, Ex. A.
E. Plaintiffs’ roles as federal contractors
Plaintiffs have thousands of contracts and subcontracts with the federal
government, meaning thousands of Plaintiffs’ employees are “covered contractor
employees” under the Mandate. See, e.g., Declaration of Teresa MacCartney (“Board
of Regents Dec.”), Exhibit 14, at ¶ 18; AU Dec. at ¶ 8; GA Tech Dec. at ¶ 7; UGA-1
Dec. at ¶ 4.7 Federal contracts comprise significant portions of Plaintiffs’ budgets.
For example, Plaintiff Board of Regents (“Board of Regents”) of the University System
of Georgia’s (“University System”) impacted research institutions—Augusta
University, Georgia Institute of Technology, and the University of Georgia—
collectively maintain over 2,000 federal agency contracts. Board of Regents Dec. at ¶
18; see AU Dec. at ¶ 8; GA Tech Dec. at ¶ 7; Declaration of Margaret A. Amstutz,
Ph.D (“UGA-2 Dec.”), Exhibit 15. These three institutions generated approximately
$736,968,899.00 in revenue from federal contracts for fiscal year 2021. Board of
Regents Dec. at ¶ 19. The University System derives approximately 9% of its annual
7 Due to President Biden announcing a new vaccination deadline just yesterday, November 4, 2021,
various declarations that were signed prior to November 4 referenced herein refer to the prior deadline
of December 8, 2021 instead of the new January 4, 2022 deadline.
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budget from federal contracts within Augusta University, Georgia Institute of
Technology, and the University of Georgia alone. Board of Regents Dec. at ¶¶ 7, 19.
Plaintiffs are attempting to comply with the Contractor Mandate, at great cost
to themselves and the taxpayers. For example, the Board of Regents’ impacted
institutions have begun: (1) tracking employee vaccination statuses; (2) creating a
process to review requests for accommodation; (3) identifying impacted employees
and locations; (4) expending their financial resources to ensure compliance; and (5)
tracking the above data from their subcontractors to ensure that they are likewise
complying with the mandate. Board of Regents Dec. at ¶ 21. Despite diligently
working to attempt compliance, the impacted institutions are deeply concerned they
will be unable to reach full compliance by the January 4, 2022 deadline. Board of
Regents Dec. at ¶ 22. Further, while it has encouraged all Board employees to obtain
a COVID-19 vaccine, the Board is concerned that all covered institutions may not
reach full compliance by the January 4, 2022 deadline. Board of Regents Dec. at ¶ 23.
Based on the Board of Regents’ understanding of the Contractor Mandate, if its
covered contractor employees do not obtain a final dose of a COVID-19 vaccine by
January 4, 2022, those employees will have to be removed from working on federal
contracts and relocated to a workplace that is not a covered contractor workplace or
be terminated. Board of Regents Dec. at ¶ 24.
The employee discipline and termination process is lengthy, costly, and will
require the states to expend extensive resources to ensure compliance. Board of
Regents Dec. at ¶ 26; UI Dec. at ¶ 13; ADRS Dec. at ¶ 20. Plus, the loss of technically-
skilled employees will impact Plaintiffs’ ability to perform the services required by
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their contracts, especially because it may not be possible to replace those employees
in the current labor market. Board of Regents Dec. at ¶ 26; GA Tech Dec. at ¶ 7;
UGA-2 Dec. at ¶ 10; UI Dec. at ¶ 13.
Many state agencies administer services for their citizens that depend on
federal agency contracts. For example, Plaintiff Alabama Department of Public
Health (“ADPH”) has primary responsibility for serving Alabamians’ public health
needs. ADPH Dec. at ¶ 5. ADPH has over 2,600 employees, many of whom are
unvaccinated and likely to quit their jobs if forced to receive the COVID-19
vaccination as a condition of further employment. ADPH Dec. at ¶¶ 6, 13. While the
precise number of ADPH’s unvaccinated employees is as yet undetermined,
Alabama’s county rates for full vaccination range from 22.74% in Russell County to
49.73% in Lowndes County, indicating that the majority of ADPH’s employees are
likely in jeopardy of termination. Vaccine Doses Administered, Alabama Public
Health, https://bit.ly/3CL87rm. The same is true for Plaintiff Alabama Department
of Agriculture and Industries (“ADAI”), which provides services for farmers and
consumers of agricultural projects. Declaration of Richard Stewart Pate (“ADAI
Dec.”), Exhibit 16, at ¶ 13. ADAI has leased property to the United States
Department of Agriculture (“USDA”) continuously for the past 26 years. On October
20, 2021, a USDA officer sent ADAI a lease amendment incorporating a “mandatory
Executive Order 14042 [clause] . . . which needs to be part of every Federal contract
now.” ADAI requested clarification on October 22, 2021, to which USDA sent the
following response: “[I]t’s ‘encouraged’ for the Lessors to sign, BUT if you don’t, then
[USDA] won’t be able to do any future lease actions with you if you don’t, as well as
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anything regarding the current lease, such as an extensions or expansions if needed.
So we’d have to move out when the lease expires.” ADAI Dec. at Ex. A (emphasis in
original). Each Plaintiff faces this kind of choice.
LEGAL STANDARD
Plaintiffs seek a preliminary injunction under Federal Rule of Civil Procedure
65(a) to “preserve the relative positions of the parties until a trial on the merits can
be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). “A plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.”
Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).
ARGUMENT
I. Plaintiffs are likely to succeed on the merits.
The Contractor Mandate is illegal for multiple, independent reasons, any one
of which makes Plaintiffs “likely to succeed on the merits.” Winter, 555 U.S. at 20.
A. The Contractor Mandate exceeds the President’s authority under
the Procurement Act.
1. The Procurement Act does not give the President unlimited
authority.
The Procurement Act only empowers the President to issue “policies and
directives” that have a reasonably close nexus to “provid[ing] the Federal
Government with an economical and efficient system for . . . contracting.” 40 U.S.C.
§ 101; see 40 U.S.C. § 121(a). The authorized “policies and directives” may only be
those matters necessary to “carry out” the Procurement Act. Id.
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The Procurement Act does not give the President any power to make decisions
that have vast economic and political significance or that alter the federal/state
balance. First, when the executive branch lays claim to powers of “vast economic and
political significance,” the Supreme Court requires that “Congress [] speak clearly”
before the executive branch may exercise such powers. Ala. Ass’n of Realtors v. HHS,
141 S. Ct. 2485, 2489 (2021) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324
(2014)). Second, when the executive branch invokes powers that would “significantly
alter the balance between federal and state power,” Congress must impart those
powers with even greater clarity. Id. In that context, the Supreme Court’s
“precedents require Congress to enact exceedingly clear language” granting the
executive branch such authority. Id. (emphasis added) (citing U.S. Forest Serv. v.
Cowpasture River Preservation Ass’n., 140 S. Ct. 1837, 1850 (2020)); see Bond v.
United States, 572 U.S. 844, 858 (2014) (same). Nothing in the Procurement Act
meets these demanding standards, and thus any action that the President would
purport to take under the Act that has vast economic significance or alters the
federal/state balance is unlawful.
Even if the Act permitted the issuance of procurement regulations that did not
need to comply with the major questions doctrine and clear statement rule, the Act
does not give the President unlimited authority. See Chamber of Com. of the U.S. v.
Reich, 74 F.3d 1322, 1330 (D.C. Cir. 1996). That means that the exercise of purported
“procurement authority” must have a “nexus” with “some delegation of the requisite
legislative authority by Congress . . . reasonably within the contemplation of that
grant of authority.” Chrysler Corp. v. Brown, 441 U.S. 281, 304, 306 (1979). If there
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is not a “reasonably close nexus between the efficiency and economy criteria of the
Procurement Act and any exactions imposed upon federal contractors,” the order
issued under the Act is unlawful. Liberty Mut. Ins. v. Friedman, 639 F.2d 164, 170
(4th Cir. 1981); see Reich, 74 F.3d at 1331.
2. The Contractor Mandate is beyond the President’s
authority under the Procurement Act.
The Contractor Mandate exceeds the President’s authority under the
Procurement Act for three independent reasons.
First, the Contractor Mandate is beyond the President’s Procurement Act
authority because the Mandate is a procurement regulation that purports to control
numerous third parties, not a mere “polic[y]” or directive[],” 40 U.S.C. § 101.
“[P]olicies and directives” refer only to the President’s power to direct the way in
which procurement authority is exercised by the executive branch, not to issue
sweeping regulations on third parties. Cf. Centralizing Border Control Policy Under
the Supervision of the Attorney General, 26 Op. O.L.C. 22, 23 (2002) (“Congress may
prescribe that a particular executive function may be performed only by a designated
official within the Executive Branch, and not by the President.”).
Second, the Contractor Mandate is beyond the President’s Procurement Act
authority because the Mandate not only has “vast economic and political
significance,” but would also “significantly alter the balance between federal and
state power.” Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (internal citation omitted).
The decision whether millions of Americans must be vaccinated is plainly one of “vast
economic and political significance,” id., and one which Congress did not speak to
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when it enacted the Procurement Act. Indeed, the Mandate is a thinly veiled attempt
by President Biden to do what he has admitted he could not do: impose a nationwide
vaccine mandate. See supra at 1. That is something no President has previously
done and, if upheld by the courts, would permit Presidents to advance virtually any
public health (or, indeed, public policy) goal by imposing requirements on the millions
of Americans who happen to work for federal contractors, at the stroke of a pen.
Further, the determination whether to require vaccinations falls within the
discretion of the States—not the federal government. See, e.g., Barsky v. Bd. of
Regents, 347 U.S. 442, 449 (1954) (“It is elemental that a state has broad power to
establish and enforce standards of conduct within its borders relative to the health of
everyone there.”); Hill v. Colorado, 530 U.S. 703, 715 (2000) (“It is a traditional
exercise of the States’ police powers to protect the health and safety of their
citizens.”). The Procurement Act contains no language extending power to the
President to regulate public health or impose mass vaccination policies.
Third, the Mandate is also unlawful because no “reasonably close nexus” exists
between and the Contractor Mandate and “the efficiency and economy criteria of the
Procurement Act.” Friedman, 639 F.2d at 170. Other than a series of conclusory
statements that the Mandate promotes “efficiency and economy in Federal
procurement,” the President made no attempt to show any link at all between the
scope of the Mandate and efficiency and economy in federal procurement. Peeler Dec.
at Ex. A. Rather, the Mandate’s application to contractor employees that neither
work on federal contracts nor pose a real risk of transmitting COVID-19 on a federal
contract worksite (for example, federal contractor employees who work solely from
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home) makes clear that the President made a public health policy, not a policy with
any “reasonably close nexus” to “the efficiency and economy criteria of the
Procurement Act.” Friedman, 639 F.2d at 170. The Task Force mandates that a
“covered contractor employee” must include all full-time or part-time employees that
work on a federal contract, in connection with a federal contract, or at a contractor
workplace. Peeler Dec. at Ex. A, 3–4. Thus, the Mandate requires that employees
who do not even work on federal contracts be vaccinated if they simply walk past
another employee in the building lobby. See id., 10–11. And the Contractor Mandate
does not exempt remote workers, employees who work exclusively or primarily
outside, or employees who work in a socially distanced environment.
That means the Mandate is certain to promote inefficiency by jeopardizing
contractors’ ability to timely perform under federal contracts. Employee terminations
and departures, which will be necessary in order to comply with the Contractor
Mandate, will result in contractors losing individuals servicing federal contracts that
have valuable institutional knowledge. The Mandate will force contractors to require
replacements to undergo substantial training and experience to adequately replace
the departing employees. See GDPH Dec. at ¶ 10. And some employees are entirely
irreplaceable, either as members of professions for which there are critical shortages
or due to a nonfungible specialized skillset. Id. Further promoting inefficiency, the
Mandate requires each federal contractor to implement administrative measures to
monitor and enforce the Mandate, adding operational costs on top of the costs of
recruiting, replacing, and re-training employees. See GA Tech. Dec., ¶¶ 11–16
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(detailing the administrative hurdles and costs required for compliance with the
Contractor Mandate); UGA-1 Dec., ¶¶ 4–8 (same); GDPH Dec., ¶¶ 8–10 (same).
B. The Contractor Mandate is unlawful for failure to follow notice-
and-comment rulemaking requirements.
The Contractor Mandate is doubly unlawful for failure to comply with notice-
and-comment rulemaking.
1. The Procurement Policy Act requires the administration to
submit the Task Force Guidance and the FAR Deviation
Clause to notice and comment rulemaking.
a. The Office of Federal Procurement Policy Act, 41 U.S.C. § 1707(a)
(“Procurement Policy Act”), requires that before issuing “a procurement policy,
regulation, procedure, or form,” an agency must subject “that procurement policy,
regulation, procedure, or form” to the strictures of notice-and-comment rulemaking,
if it “(A) relates to the expenditure of appropriated 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). This applies to “an amendment or
modification” to an existing procurement policy, rule, or regulation. Id. § 1707(a)(1).
b. Both the Task Force Guidance and the FAR Deviation Clause are a
“procurement policy, regulation, procedure, or form,” subject to the Procurement
Policy Act, and were issued without following notice-and-comment rulemaking
procedures. A “policy” is “[a] standard course of action that has been officially
established by an organization.” Policy, Black’s Law Dictionary (11th ed. 2019). A
“regulation,” in turn, is “an official rule or order, having legal force, issued by an
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administrative agency.” Regulation, Black’s Law Dictionary (11th ed. 2019). The
Task Force Guidance is a procurement policy because it prescribes a standard course
of action for federal contractors as they perform their obligations pursuant to federal
contracts and changes their obligations to maintain a safe workplace under FAR
Subparts 22 and 23. See 48 C.F.R. §§ 22.000–23.1105. Similarly, the FAR Deviation
Clause is a “procurement regulation,” as it is a part of the Federal Acquisition
Regulation issued by the Federal Acquisition Regulatory Council and governs federal
contracting and procurement for certain executive agencies. And both have “a
significant cost or administrative impact on contractors or offerors,” 41 U.S.C.
§ 1707(a)(1)(A)–(B), for the reasons already given. See supra I.A.2.
The Task Force Guidance and the FAR Deviation Clause also both “relate[] to
the expenditure of appropriated funds,” 41 U.S.C. § 1707(a)(1)(A), as they set out the
preconditions to federal contracting. Pursuant to EO 14042, federal agencies must
comply with the Task Force Guidance as a condition of federal contracting. All federal
agencies awarding procurement contracts are subject to the FAR and many have
already issued contract guidance to their contracting officials directing them to use
the FAR Deviation Clause to require compliance with the Task Force Guidance. See,
e.g., BVRHS Dec. at ¶ 12 (noting the CDC has already sought to modify contracts to
include the Contractor Mandate).
Defendants neither published the Task Force Guidance or the FAR Deviation
Clause for public comment in the Federal Register nor sought to invoke any exception
to the notice and comment requirement. The Defendants did not even attempt to
show “urgent and compelling circumstances [that would have made] compliance with
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the requirements impracticable,” which would have permitted the Mandate to take
effect on a temporary basis (but still only after a 30-day public comment period). 41
U.S.C. § 1707(d)–(e). That renders the Task Force Guidance and the FAR Deviation
Clause invalid. See generally Nat. Res. Def. Council, Inc. v. Herrington, 768 F.2d
1355, 1396 (D.C. Cir. 1985); see also 41 U.S.C. § 1707(a)(1).
2. The FAR Council failed to provide public notice and
comment to implement the Contractor Mandate.
a. The FAR is the primary regulation governing federal procurement and
government contracting. The FAR Council oversees the FAR and “assist[s] in the
direction and coordination of Government-wide procurement policy.” 41 U.S.C. §
1302(a). The FAR Council consists of two councils that must coordinate to revise the
FAR, but primary responsibility to “prepare[], issue[], and maintain[]” the FAR lies
jointly with the Secretary of Defense, the Administrator of General Services, and the
NASA Administrator. 41 U.S.C. § 1303(a)(1); 48 C.F.R. § 1.103(b). A “significant
revision” to the FAR is any revision that “alter[s] the substantive meaning of any
coverage in the FAR [s]ystem,” and has “a significant cost or administrative impact
on contractors” or a “significant effect beyond the internal operating procedures of the
issuing agency.” 48 C.F.R. § 1.501-1. Before the FAR Council may make “significant
revisions” to the FAR, it must provide an opportunity for public comments and
consider those comments when making its decision. Id. §§ 1.501-1; 1.501-2. The FAR
explains that the FAR Council will consider the “[v]iews of agencies and
nongovernmental parties” when crafting “acquisition policies and procedures.” Id. §
1.501-2(a). When initiating a public comment period, DOD, NASA, and GSA must
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jointly publish a notice in the Federal Register. Id. §§ 1.501-2(b); 1.201-1; 1.103. The
notices must contain the text of the revision and provide at least 30 days, but
preferably at least 60 days, for receipt of comments. Id. § 1.501-2(b), (c).
b. The FAR Deviation Clause implementing the Task Force Guidance—
Deviation Clause 52.223-99—is a significant revision as defined by the FAR yet was
not subject to notice-and-comment rulemaking. Deviation Clause 52.223-99 alters
the substantive meaning of contractors’ obligations to their workforces and workplace
safety duties under FAR Subparts 22 and 23. See 48 C.F.R. §§ 22.000–23.1105.
Complying with Deviation Clause 52.223-99 will have a crushing administrative
impact on federal contractors, as described elsewhere in this brief. See supra I.A.2.
To comply, contractors must ensure all their covered employees are vaccinated,
implement masking and social-distancing in workplaces, create and implement a
contact-tracing program, and monitor the Task Force’s website so they can scramble
to comply with any new guidance that the Task Force may release at a moment’s
notice. Thus, Deviation Clause 52.223-99 is a significant revision and is thereby
subject to notice and comment procedures. But the FAR Council did not even attempt
to comply. See Sunoco, Inc. v. United States, 59 Fed. Cl. 390, 396 (Fed. Cl. 2004). Nor
did FAR even attempt to invoke the “urgent and compelling circumstances” exception.
48 C.F.R. § 1.501-3(b); see supra I.B.1.
Instead of providing public notice and a comment period for the Contractor
Mandate, the FAR Council began enforcing the Mandate as a purported FAR class
deviation. That is unlawful, first, because Deviation Clause 52.223-99 does not fit
the definition of a deviation, which is meant to be a slight departure from an existing
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FAR clause or minimal change to the procurement process for a particular contract.
See 48 C.F.R. § 1.401(a)–(f). But, more importantly, even class deviations must be
submitted as a FAR revision and subjected to notice-and-comment when they are
implemented on a permanent basis. Id. at 1.404(b). Deviation Clause 52.223-99 has
no expiration date, yet there was no notice-and-comment.
The President directed the FAR Council to implement the Task Force Guidance
to ensure that federal agencies would incorporate the requirements of the Mandate
into those contracts, and the executive branch has provided no indication that those
requirements are time limited. As a result, the FAR Council was required to treat
the implementation of the Task Force Guidance as a FAR revision subject to notice-
and-comment. It has failed to do so. That failure requires invalidation of Deviation
Clause 52.223-99. Sunoco, Inc., 59 Fed. Cl. at 396; 48 C.F.R. §§ 1.501-1; 1.501-2.
C. If the Procurement Act authorizes the Contractor Mandate, then
the Procurement Act and the Mandate are unconstitutional.
1. The Procurement Act and the Mandate are unconstitutional
under the non-delegation doctrine.
a. All legislative powers granted by the Constitution are vested in Congress.
U.S. Const., art. I, § 1. “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); Nat’l Cable Television
Ass’n v. United States, 415 U.S. 336, 342 (1974). “Congress cannot grant to an officer
under its control what it does not possess.” Bowsher v. Synar, 478 U.S. 714, 726
(1986). The principle of nondelegation “is a principle universally recognized as vital
to the integrity and maintenance of the system of government ordained by the
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constitution.” Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892); Indus. Union
Dep’t, AFL-CIO v. API, 448 U.S. 607, 673 (1980) (Rehnquist, J., concurring in
judgment). While Congress may delegate a certain extent of its authority, it must
“lay down by legislative act an intelligible principle to which the person or body
authorized to exercise the delegated authority is directed to conform” in order to
constitutionally delegate authority. Mistretta v. United States 488 U.S. 361, 372
(1989) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).
The specificity of the principle that Congress must supply under the intelligible
principal test depends, at least in part, on the “extent and character” of the power
conferred. J.W. Hampton, Jr., & Co., 276 U.S. at 406; see Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 475 (2001) (“[T]he degree of agency discretion that is acceptable
varies according to the scope of the power congressionally conferred.”). Congress
cannot delegate “powers which are strictly and exclusively legislative,” but may
delegate with respect to areas of “less interest, [for] which a general provision may be
made, and power given to those who are to act under such general provisions to fill
up the details.” United States v. Cooper, 750 F.3d 263, 266–67 (3d Cir. 2014) (quoting
Wayman v. Southard, 23 U.S. 1, 42–43 (1825)); see United States Telecomms. Ass’n v.
FCC, 855 F.3d 381, 402 (D.C. Cir. 2017) (Brown, J., dissenting) (articulating the same
principle and describing the exclusively legislative issues as “important subjects,
which must be entirely regulated by the legislature itself”). And when delegating
powers in a way that impacts the federal/state balance of power, even more clarity
than normal is required in order for a delegation to be effective. See Gun Owners of
Am., Inc. v. Garland, 992 F.3d 446, 456 (6th Cir. 2021) (applying the clear statement
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rule to Congress’s attempt to delegate issues that would authorize a departure “from
the Constitution’s traditional distribution of authority”), vacated for rehearing en
banc on other grounds, 2 F.4th 576, 577 (2021).
b. If this Court concludes that the Procurement Act is so capacious as to permit
the President to adopt the Contractor Mandate, the Act would violate the
nondelegation doctrine. Under the Procurement Act, the President’s actions must
have a nexus to promoting “econom[y] and efficien[cy]” in contracting. 40 U.S.C.
§101. Especially if this Court agrees that these terms are broad enough to give the
President the authority to impose a vaccine mandate under the guise of vague,
conclusory “economy” and “efficiency” concerns that he has articulated here, then the
Procurement Act is unconstitutional. Under this reading, the Act would lack any
boundaries that would direct the President as to how he is permitted to exercise
delegated authority, eliminating the possibility that Congress has effectively
delegated authority under the Act. Mistretta, 488 U.S. at 372–73.
Even if the Procurement Act’s open-ended policy aims could be sufficient
guidance in certain contexts to support delegation, the “extent and character” of the
powers the President seeks to exercise through the Contractor Mandate are so
expansive that they are nondelegable. Because the Mandate regulates the public
health, something traditionally reserved to the States, even more clarity would be
required in order for Congress to have authorized the Contractor Mandate by
delegation. See infra I.C.2. Here, the President can point to no intelligible principle
that would guide his unilateral implementation of a sweeping vaccination
requirement, which is so significant in its extent and character that it is not subject
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to delegation to begin with. Accordingly, if the Procurement Act were read to
authorize the Contractor Mandate, both would be unconstitutional.
2. The Procurement Act and the Mandate are unconstitutional
because they exceed Congress’ authority.
“[L]aws that undermine the structure of government established by the
Constitution” by usurping state sovereignty are “not consistent with the letter and
spirit of the [C]onstitution,” and are therefore “not [a] proper means” for Congress to
exercise its enumerated powers under the Necessary and Proper Clause. Nat’l Fed’n
of Indep. Bus. v. Sebelius, 567 U.S. 519, 559 (2012) (internal citations, quotation
marks, and alterations omitted); U.S. Const. art. I, § 8, cl. 18. Even if a particular
policy is “necessary” to a legislative scheme, it is not “proper” if it unduly expands
federal powers at the states’ expense. Id. at 559–60; Printz v. United States, 521 U.S.
898, 923–25 (1997). Relatedly, the Tenth Amendment provides guidance as to
whether a particular legislative action encroaches on state sovereignty and is thus
not a “proper” exercise of Congress’ constitutional authority: “The powers not
delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.” U.S. Const. amend. X.
The Contractor Mandate regulates public health and enacts an extensive mass
vaccination mandate that would affect millions of people, even though the States’
police power has long included public health regulation. See supra I.A.2. The
Contractor Mandate thus surpasses Congress’s authority by encroaching on state
sovereignty and attempting to unduly expand federal powers. See Sebelius, 567 U.S.
at 559. That intrusion on Plaintiff-States’ sovereignty has a real-world impact.
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States have the authority to determine the vaccination policies that should be
applicable to their citizens. When the federal government seeks to infringe upon the
States’ sovereignty in this sensitive area—as the Contractor Mandate does—the
result is arbitrary legal requirements within a particular state, whereby some
citizens must be vaccinated and others would not, simply based on whether the
citizen had a tangential proximity to an employee of a federal contractor. That
intrusion would (and currently does, under the Mandate) interfere with the States’
ability to craft uniform public health policy. Thus, the Mandate is not
constitutionally “proper,” and, even if Congress had intended to authorize the
executive branch to issue the Contractor Mandate, that delegation would be
unconstitutional.
II. Plaintiffs Will Suffer Substantial and Irreparable Harm Absent
Preliminary Relief
The second prong in the preliminary injunction analysis is whether injunctive
relief is required due to “a substantial likelihood of irreparable injury.” Siegel v.
LePore, 234 F.3d 1163, 1179 (11th Cir. 2000). Absent an injunction, Plaintiffs face
the untenable position of having to choose between (1) reassigning and physically
moving or terminating all covered employees who choose not to get vaccinated, which
will likely undermine Plaintiffs’ ability to complete the contracts due to loss of needed
personnel; or (2) risk breaching federal contracts collectively worth billions of dollars
that Plaintiffs will later be unable to recover, while losing out on the contracts
themselves, which will then undermine Plaintiffs’ ability to recruit talented students
and researchers. Both outcomes would constitute irreparable harm. See Thunder
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Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring) (“[A]
regulation later held invalid almost always produces the irreparable harm of
nonrecoverable compliance costs.”); Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of
Transp., 715 F.3d 1268, 1289 (11th Cir. 2013) (“[N]umerous courts have held that the
inability to recover monetary damages . . . renders the harm suffered irreparable.”);
Georgia v. United States, 398 F. Supp. 3d 1330, 1344 (S.D. Ga. 2019) (Plaintiffs
“experience irreparable harm in the loss of the contract. . ., the loss of employees,. . .
[etc.].”); Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 404 (2d Cir. 2004) (classifying
the loss of good will as irreparable harm); Douglas Dynamics, LLC v. Buyers Prods.
Co., 717 F.3d 1336, 1344 (Fed. Cir. 2013) (recognizing that irreparable injury may
include “different types of losses that are often difficult to quantify, including lost
sales and erosion in reputation and brand distinction”). These irreparable harms are
imminent because the Contractor Mandate requires covered employees to receive a
final vaccine dose by January 4, 2022. See, e.g., Board of Regents Dec. at ¶ 24.
In all probability, on January 4, Plaintiffs will have many covered contractor
employees who have not been vaccinated unless Plaintiffs engage in mass firings. For
the Georgia Plaintiffs, nearly 50% of Georgians are fully vaccinated; the remaining
50% have yet to obtain a vaccine. Georgia Department of Public Health, Press
Release, 50% of Georgians Fully Vaccinated Against COVID-19 (Oct. 25, 2021),
https://bit.ly/3bIQ0GL. While the precise number of covered employees that will
remain unvaccinated is unknown, under these odds there is a serious threat that
Plaintiffs will be unable to achieve total compliance without mass layoffs. See GA
Tech Dec. at ¶ 13; UGA-2 Dec. at ¶¶ 4–6. For example, Georgia Tech employs
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approximately 20,182 employees, including student employees, the majority of whom
will likely be subject to the Contractor Mandate. GA Tech Dec. at ¶¶ 9–10. Even if
Georgia Tech’s covered contractor employees beat the state average vaccination rate
by 20% (using 70% as an example), thousands of employees will have to be vaccinated,
removed, replaced, disciplined, or terminated by January 4. Other named Plaintiffs
will undergo similarly severe hardships. Plaintiff Alabama Department of Public
Health (“ADPH”) has over 2,600 employees statewide in “covered contractor
workplaces.” ADPH Dec. at ¶ 6. Alabama’s county rates for full vaccination are as
low as 22.74% and as high as 49.73%. Vaccine Doses Administered, Alabama Public
Health, available at https://bit.ly/3BGJ4EA (last visited Oct. 31, 2021). With this
level of threatened personnel loss—and the delay associated with recruiting, hiring
and training new employees, especially in such a tight labor market—many Plaintiffs
risk being unable to carry out current federal contractual obligations. See GA Tech
Dec. at ¶ 14; ADAI Dec. at ¶ 14; ADPH Dec. at ¶ 14; BSU Dec. at ¶ 14; ISU Dec. at ¶
11; UI Dec. at ¶ 14; Declaration of Jane Elizabeth Burdeshaw (“ADRS Dec.”), Exhibit
7 at ¶¶ 8, 12.
On the other hand, Plaintiffs may simply be unable to comply with the
Contractor Mandate. This will cause Plaintiffs to lose tens and hundreds of millions
of dollars that they will never be able to get back. See GA Tech Dec. at ¶ 7 (Georgia
Tech received $663,868,899.00 in annual revenue from federal contracts in fiscal year
2021, accounting for 33% of total revenue); UGA-1 Dec. at ¶ 6 (UGA received $56
million in fiscal year 2021); AU Dec. at ¶ 7 (Augusta University received $17.1 million
in fiscal year 2021); UI Dec. at ¶ 5 (University of Idaho received $22 million); BSU
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Dec. at ¶ 5 (Boise State University received $25,057,355); ISU Dec. at ¶ 5 (Idaho State
University received $25,057,355); UAS Dec. at ¶ 6 (putting the current value of
federal contracts to the University of Alabama, the University of Alabama
Birmingham, and the University of Alabama Huntsville at $663,079,382).
No dollar amount can address the inevitable (1) loss of personnel, (2) loss of
institutional knowledge vested in each employee, (3) loss of specialized workers, (4)
damage to reputation, (5) damage to good will, and (6) inability to carry out their
respective missions, all of which constitute irreparable harms. See Georgia v. United
States, 398 F. Supp. 3d 1330, 1344 (S.D. Ga. 2019) (holding plaintiffs would
“experience irreparable harm in the loss of the contract. . ., the loss of employees,. . .
[etc].”); BellSouth Telecommunications, Inc. v. MCIMetro Access Transmission Servs.,
LLC, 425 F.3d 964, 970 (11th Cir. 2005) (finding that “the loss of customers and
goodwill is an irreparable injury”) (quoting Ferrero v. Associated Materials Inc., 923
F.2d 1441, 1449 (11th Cir.1991)); Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d
1221, 1235 (10th Cir. 2019) (where the court identified “diminishment of competitive
positions in marketplace” and “loss of employees’ unique services” as factors
supporting irreparable harm); Douglas Dynamics, LLC v. Buyers Prods. Co., 717 F.3d
1336, 1344 (Fed. Cir. 2013); League of Women Voters of the U.S. v. Newby, 838 F.3d
1, 8 (D.C. Cir. Sept. 26, 2016) (stating “[a]n organization is harmed if the actions
taken by the defendant have perceptibly impaired the organization’s programs”).
Here, Plaintiff universities will suffer nonmonetary harm through a loss of
“recruiting and retaining talented faculty and students,” because “[t]he talented
individuals [Plaintiffs] recruit as faculty, staff, and students have every expectation
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of having these challenging and exciting research opportunities available to them via
the federal contracting process.” UGA-2 Dec. at ¶ 10; see, e.g., AU Dec. at ¶ 18; GA
Tech at ¶ 15.
The universities will also suffer irreparable harm from the masking and social
distancing requirements in the Mandate. The social distancing requirements in
particular would effectively end a university’s ability to hold in person instruction in
many classes, which undermines the core function of a university—to educate its
students.
III. The Balance of Equities and Public Interest Favors Granting
Preliminary Relief
The balance of the equities and public interest factors also weigh in favor of
granting Plaintiffs’ motion. When the government is the opposing party, these two
factors “merge.” Nken v. Holder, 556 U.S. 418, 435 (2009); Scott v. Roberts, 612 F.3d
1279, 1290 (11th Cir. 2010). Defendants have no lawful interest in enforcing an
unconstitutional and unlawful policy. See Odebrecht Const., Inc, 715 F.3d at 1290.
That is especially true because individual freedoms and liberties are at stake. An
injunction would serve the interest of the public because, absent an injunction,
unvaccinated covered contractor employees across the country face reassignment,
relocation, discipline or termination. The public interest is further served with a
preliminary injunction since covered contractor employees are being put to the choice
to either keep their job by complying with an unlawful and unconstitutional mandate
or lose the ability to put food on the table. Defendants, on the other hand, would
simply have to maintain their status quo rather than taking any affirmative act. See
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United States v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983) (“Preservation of the
status quo enables the court to render a meaningful decision on the merits.”). Indeed,
Defendants would merely have to maintain the same position they had in July 2021,
when the White House admitted it was “not the role of the federal government” to
mandate vaccination. See supra Introduction.
CONCLUSION
For the above reasons, Plaintiffs respectfully request this Court preliminarily
enjoin Defendants from implementing and enforcing the Contractor Mandate
through and including trial of this matter.
Respectfully submitted this 5th day of November, 2021.
STATE OF GEORGIA /s/ Harold D. Melton
Georgia Attorney General Harold D. Melton (Ga Bar No. 501570)
Christopher M. Carr
Charles E. Peeler (Ga Bar No. 570399)
Misha Tseytlin (Admitted Pro Hac Vice)
/s/ Drew F. Waldbeser Special Assistant Attorneys General
Drew F. Waldbeser (Pro Hac Vice for Plaintiffs the State of Georgia,
pending) Governor Brian P. Kemp in his official
Deputy Solicitor General capacity, Commissioner Gary W.
Ross W. Bergethon Black in his official capacity; and the
Deputy Solicitor General Board of Regents of the University
Office of the Attorney General System of Georgia
40 Capitol Square, S.W.
Atlanta, Georgia 30334
Tel.: (404) 458-3378 Troutman Pepper Hamilton Sanders
Fax: (404) 656-2199 LLP
dwaldbeser@law.ga.gov Bank of America Plaza, Suite 3000
600 Peachtree Street N.E.
Counsel for State of Georgia Plaintiffs Atlanta, Georgia 30308-2216
Tel.: (404) 885-3000
Fax: (404) 962-6515
Harold.Melton@Troutman.com
Counsel for State of Georgia Plaintiffs
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/s/ Paul H. Dunbar III
Paul H. Dunbar III (233300)
Capers Dunbar Sanders & Bellotti, LLP
2604 Commons Boulevard
Augusta, Georgia 30909
Phone: (706) 722-7542
pauldunbar@bellsouth.net
STATE OF ALABAMA
Office of the Attorney General Steve Local Counsel for Plaintiff-States and
Marshall Agencies
/s/ Edmund G. LaCour Jr. /s/William G. Parker, Jr.
Edmund G. LaCour Jr. (Admitted Pro William G. Parker, Jr. (Pro Hac Vice
Hac Vice) forthcoming)
Solicitor General General Counsel
Thomas A. Wilson (Admitted Pro Hac Office of the Governor
Vice) Alabama State Capitol
Deputy Solicitor General 600 Dexter Avenue, Room N-203
Office of the Attorney General Montgomery, Alabama 36130
501 Washington Ave. Tel.: (334) 242-7120
Montgomery, AL 36130 Fax: (334) 242-2335
Tel.: (334) 353-2196 Will.Parker@governor.alabama.gov
Fax: (334) 353-8400
Edmund.LaCour@AlabamaAG.gov Counsel for Governor Kay Ivey
Thomas.Wilson@AlabamaAG.gov
Counsel for Plaintiffs State of Alabama
and Alabama Agencies
STATE OF IDAHO STATE OF KANSAS
Office of the Attorney General Office of Attorney General Derek
Lawrence G. Wasden Schmidt
/s/ W. Scott Zanzig /s/ Brant M. Laue
W. Scott Zanzig (Pro Hac Vice Brant M. Laue (Pro Hac Vice
forthcoming) forthcoming)
Deputy Attorney General Solicitor General
954 W Jefferson, 2nd Floor 20 SW 10th Avenue, 2nd Floor
P. O. Box 83720 Topeka, Kansas 66612
Boise, ID 83720-0010 Tel: (785) 296-2215
Tel.: (208) 334-2400 Fax: (785) 296-6296
Fax: (208) 854-8073 brant.laue@ag.ks.gov
scott.zanzig@ag.idaho.gov
Counsel for the State of Kansas
Counsel for the State of Idaho
33
Case 1:21-cv-00163-RSB-BKE Document 19 Filed 11/05/21 Page 34 of 35
STATE OF SOUTH CAROLINA STATE OF SOUTH CAROLINA
Office of South Carolina Attorney Office of Governor Henry McMaster
General Alan Wilson
/s/ J. Emory Smith, Jr. /s/ Thomas A. Limehouse, Jr.
J. Emory Smith, Jr. (Pro Hac Vice Thomas A. Limehouse, Jr. (Pro Hac
forthcoming) Vice forthcoming)
Deputy Solicitor General Chief Legal Counsel
Thomas T. Hydrick (Pro Hac Vice Wm. Grayson Lambert (Pro Hac Vice
forthcoming) forthcoming)
Assistant Deputy Attorney General Senior Legal Counsel
Michael G. Shedd (Pro Hac Vice
Office of the Attorney General forthcoming)
Post Office Box 11549
Columbia, South Carolina 29211 Deputy Legal Counsel
Tel.: (803) 734-3680 Office of the Governor
Fax: (803) 734-3677 South Carolina State House
esmith@scag.gov 1100 Gervais Street
Columbia, South Carolina 29201
Counsel for the State of South Carolina (803) 734-2100
tlimehouse@governor.sc.gov
Counsel for Henry McMaster, in his
official capacity as Governor of the
State of South Carolina
STATE OF WEST VIRGINIA STATE OF UTAH
Office of Attorney General Patrick Office of the Attorney General Sean
Reyes
Morrisey
/s/ Melissa A. Holyoak
_/s/ Lindsay See Melissa A. Holyoak (Pro Hac Vice
Lindsay See (Pro Hac Vice forthcoming) forthcoming)
Solicitor General Solicitor General
Office of the Attorney General
Office of the Attorney General 350 N. State Street, Suite 230
State Capitol Complex P.O. Box 142320
Bldg. 1, Room E-26 Salt Lake City, UT 84114-2320
Charleston, West Virginia 25305 Tel.: 385.271.2484
Tel.: (304) 558-2021 melissaholyoak@agutah.gov
Lindsay.S.See@wvago.gov Counsel for the State of Utah
Counsel for the State of West Virginia
34
Case 1:21-cv-00163-RSB-BKE Document 19 Filed 11/05/21 Page 35 of 35
CERTIFICATE OF SERVICE
I hereby certify that on November 5, 2021, I caused to be electronically filed a
true and correct copy of the foregoing with the Clerk of the Court using the CM/ECF
system which will automatically send email notification of such filing to all counsel
of record
I further certify that I shall cause to be served by hand delivery, as soon as is
practicable, the foregoing document to the following non-CM/ECF participants:
US Attorney
Southern District of Georgia
600 James Brown Blvd, Suite 200
Augusta, GA 30901
I further certify that I shall cause to be served by certified mail by the United
States Postal Service the foregoing document to the following non-CM/ECF
participants:
US Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
This 5th day of November, 2021.
/s/ Harold D. Melton
Harold D. Melton (Ga Bar No. 501570)
Troutman Pepper Hamilton Sanders LLP
Bank of America Plaza, Suite 3000
600 Peachtree Street N.E.
Atlanta, Georgia 30308-2216
Harold.Melton@Troutman.com
(404) 885-3000
(404) 885-3900
35
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