Court filing
Georgia Sdga 1 21 Cv 00163 11Th 21 14269 Doc 039 Att 0
Filed November 10, 2021 in Federal Contractor Mandates; one of 57 filings from this case.
Record facts
| Court | United States District Court, For The Southern District Of Georgia, Augusta Division |
|---|---|
| Filed | 2021-11-10 |
United States District Court, For The Southern District Of Georgia, Augusta Division · No. 1:21-cv-00163-RSB-BKE · Doc. 39 · 2021-11-10 · Docket on CourtListener
Full text
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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 President of the United
States, et al.
Defendants.
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Case No. 1:21-cv-163-RSB-BKE
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION TO EXPEDITE BRIEFING
Defendants hereby oppose Plaintiffs’ motion to expedite briefing in this case. ECF 23.
Plaintiffs’ proposed, expedited schedule unnecessarily truncates Defendants’ time to respond to
Plaintiffs’ motion for a preliminary injunction. As Plaintiffs themselves note, exceptional care
and space is needed to address the “significant issues raised by Plaintiffs and the complicated
statutory, regulatory, and constitutional issues encompassed by Plaintiffs’ [11] claims,” Pls.’
Mot. to Exceed Page Limitation, ECF No. 7. Moreover, the federal government has recently
taken action that may moot or, at minimum, materially alter the scope of, Plaintiffs’ claims.
Therefore, the appropriate next step is for Plaintiffs to review their claims and determine whether
they intend to proceed with this lawsuit. To the extent Plaintiffs still wish to proceed, any claims
they may bring should address the federal government’s updated policy. There is certainly no
reason to rush preliminary injunction briefing on the federal government’s prior policy that has
now in the process of being superseded.
Plaintiffs’ claims concern the federal government’s requirement that certain federal
contractor employees receive COVID-19 vaccines and adhere to other public safety protocols.
Case 1:21-cv-00163-RSB-BKE Document 39 Filed 11/10/21 Page 1 of 4
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These requirements are intended to slow the spread of COVID-19 and to prevent disruptions in
the provision of government services by federal contractors. Executive Order 14042 directs
federal executive departments and agencies, “to the extent permitted by law,” to include in
qualifying contracts a clause requiring compliance with workplace safety guidance issued by the
Safer Federal Workforce Task Force (Task Force). 86 Fed. Reg. at 50,985; see also id. at
50,986–50,987 (listing the categories of contracts to which the EO applies). The Executive
Order delegates to the Director of the Office of Management and Budget (OMB) the President’s
statutory authority to determine whether the Task Force’s guidance “will promote economy and
efficiency in Federal contracting if adhered to by Government contractors and subcontractors.”
Id. at 50,985-50,986 (citing 3 U.S.C. § 301). On September 24, 2021, the Director of OMB
determined that the Task Force Guidance will promote economy and efficiency in federal
contracting. See 86 Fed. Reg. 53,691–53,692. Plaintiffs’ motion for a preliminary injunction
challenges this determination.
Earlier today, OMB submitted a notice for publication in the Federal Register entitled
“Determination of the Acting OMB Director Regarding the Revised Safer Federal Workforce
Task Force Guidance and the Revised Economy & Efficiency Analysis Pursuant to Executive
Order No. 14042.” A copy of the Determination that OMB sent to the Federal Register is
attached as Exhibit 1.1 OMB’s new determination both incorporates revised Task Force
Guidance and includes additional analysis to elaborate on the substance of the OMB Director’s
determination. OMB has asked the Federal Register to accept the filing immediately (i.e., today),
1 The process of accepting OMB’s updated Determination for publication in the Federal
Register may result in ministerial, non-substantive changes to the version of the attached
Determination. Defendants will notify the Court once the final version of the Determination is
published in the Federal Register.
Case 1:21-cv-00163-RSB-BKE Document 39 Filed 11/10/21 Page 2 of 4
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although it remains unclear as of the time of this filing whether that will occur. OMB’s
determination will be legally effective when the Federal Register accepts the filing, which the
Government expects could be anytime between this afternoon and Monday, November 15.
The Revised Guidance formally extends the deadline for covered Federal contractor and
subcontractors to be fully vaccinated from December 8, 2021 to January 18, 2022. This new
deadline aligns with the vaccination deadline in the Department of Labor’s Occupational Safety
and Health Administration Emergency Temporary Standard and the Centers for Medicare and
Medicaid’s rule. In other words, to comply with this deadline, a covered employee of a federal
contractor would need to receive a single-shot of the Johnson & Johnson vaccine, or a second
shot of the Pfizer or Moderna vaccines, by January 4, 2022, and would be fully vaccinated two
weeks afterwards. While Plaintiffs claim that the court must rule by December 7, 2021 “to
prevent Plaintiffs from suffering irreparable harm,” Pls.’ Mot. to Expedite Briefing at 2, they fail
to explain why any irreparable harm would accrue by that date, since employees can begin their
vaccinations as late as January 4, 2022, if they so choose.
The revised Determination makes several changes material to this litigation. For
example, the revised Determination explains that, although not subject to the procedural
requirements in 41 U.S.C. § 1707, it nevertheless complies with those requirements. The new
Determination also provides additional economy-and-efficiency analysis underlying the OMB
Director’s determination. When the OMB Director’s new Determination becomes legally
effective, it rescinds and supersedes the prior Determination and may therefore moot or narrow
the scope of several claims brought by Plaintiffs.
OMB’s transmittal of a new determination on the Task Force Guidance, the weighty
statutory and constitutional issues at play, and the recent six-week extension of time for covered
Case 1:21-cv-00163-RSB-BKE Document 39 Filed 11/10/21 Page 3 of 4
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contractor employees to be fully vaccinated all counsel in favor of denying Plaintiffs’ motion to
expedite briefing. Instead, Plaintiffs should await the publication of OMB’s new Determination
and decide whether and to what extent they wish to proceed with any revised claims.
Dated: November 10, 2021
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
BRAD P. ROSENBERG
Assistant Branch Director
Civil Division
/s/ Vinita B. Andrapalliyal
VINITA B. ANDRAPALLIYAL
LEE REEVES
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box No. 883, Ben Franklin Station
Washington, DC 20044
Phone: (202) 305-0845
Fax: (202) 616-8470
E-mail: vinita.b.andrapalliyal@usdoj.gov
/s/ Matthew A. Josephson
Matthew A. Josephson
Assistant United States Attorney
Georgia Bar. No. 367216
Post Office Box 8970
Savannah, Georgia 31412
Telephone: (912) 652-4422
Email: Matthew.Josephson@usdoj.gov
Attorneys for Defendants
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