Court filing
Georgia Sdga 1 21 Cv 00163 11Th 21 14269 Doc 055 Att 0
Summary
Plaintiffs' amended motion for a preliminary injunction and supporting brief, filed November 19, 2021 as Document 55 in The State of Georgia et al. v. Joseph R. Biden, Civil Action No. 1:21-cv-00163-RSB-BKE, in the U.S. District Court for the Southern District of Georgia, Augusta Division. The motion asks the court to enjoin the federal contractor vaccination requirement created by Executive Order 14042 and the Safer Federal Workforce Task Force guidance. It argues the requirement exceeds the President's authority under the Procurement Act, 40 U.S.C. § 121(a), that it was issued without notice-and-comment rulemaking, and that it is unconstitutional under the non-delegation doctrine and separation of powers. It also argues the state plaintiffs face irreparable harm and that the equities and public interest favor relief. The brief runs 32 pages and is signed by counsel for several states.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
No. 1:21-cv-00163-RSB-BKE · Doc. 55 · Docket on CourtListener
Full text
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 1 of 32
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’ AMENDED MOTION FOR PRELIMINARY INJUNCTION AND
BRIEF IN SUPPORT
1
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 2 of 32
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 .................................................. 6
C. The Task Force issues the mandatory, binding guidance ................................ 7
D. Agency implementation .....................................................................................9
E. Plaintiffs’ roles as federal contractors .............................................................. 10
LEGAL STANDARD .............................................................................................................. 13
ARGUMENT .......................................................................................................................... 13
I. Plaintiffs are likely to succeed on the merits.................................................... 13
A. The Contractor Mandate exceeds the President’s authority under the
Procurement Act. .................................................................................. 13
1. The Procurement Act does not give the President
unlimited authority. .......................................................................................13
2. The Contractor Mandate is beyond the President’s authority under the
Procurement Act. ...........................................................................................14
B. The Contractor Mandate is unlawful for failure to follow notice-and-
comment rulemaking requirements. .................................................... 17
1. The Procurement Policy Act requires the administration to submit the
Task Force Guidance and the FAR Deviation Clause to notice and
comment rulemaking. ....................................................................................18
2. The FAR Council failed to provide public notice and comment to
implement the Contractor Mandate. ...........................................................20
C. If the Procurement Act authorizes the Contractor Mandate, then the
Procurement Act and the Mandate are unconstitutional. .................... 22
1. The Procurement Act and the Mandate are unconstitutional under the
non-delegation doctrine. ................................................................................22
2. The Procurement Act and the Mandate are unconstitutional because
they exceed Congress’ authority. ..................................................................24
II. Plaintiffs Will Suffer Substantial and Irreparable Harm
Absent Preliminary Relief................................................................................ 26
III. The Balance of Equities and Public Interest Favors Granting Preliminary
Relief ................................................................................................................. 28
CONCLUSION ....................................................................................................................... 29
2
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 3 of 32
INTRODUCTION
This case is not about whether vaccines are good or bad. It is about whether the Biden
Administration, which has already admitted it is “not the role of the federal government” to mandate
vaccinations,1 may impose a public health policy on essentially every employee of every federal
contractor in the country based on a pretextual appeal to improved efficiency and economy in federal
contracting. The President’s intentions could not be clearer. He intends to require vaccination of
every American possible—without congressional authorization—under whatever pretense he can
find.
For proof, look no further than Executive Order 14042 (and its accompanying guidance),
which Plaintiffs challenge here. The Procurement Policy Act permits the President to impose
conditions on federal contracts only when they promote economy and efficiency in federal
contracting. 40 U.S.C. § 121(a). But this mandate has almost nothing to do with ensuring that federal
contracts will be completed in an efficient and economical fashion. Under the 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, outdoors, or exclusively 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 in an outdoor parking lot. Nor
does the Contractor Mandate give federal contractor employees the option to regularly test for
COVID-19 instead of being vaccinated.
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).
3
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 4 of 32
Complying with those requirements is onerous enough. But the contractual language is not
limited to those conditions. Instead, federal contractors must agree to comply with any future
amendments to the administrative guidance and CDC COVID-19 safety recommendations, whatever
they may be. That means the contractual requirements change whenever the online guidance does.
And the Administration amends the guidance constantly—including on September 23, September 30,
October 21, November 1, and November 10. Safer Federal Workforce Task Force, What’s New? (last
visited Nov. 19, 2021), https://www.saferfederalworkforce.gov/new/.
These ongoing changes to the guidance extend even to its most significant aspects, like the
deadline for compliance. Originally, the federal government took the position that all federal
contractors must be fully vaccinated by December 8, 2021, which meant every unvaccinated employee
would have had to obtain their final vaccine dose by November 24, 2021. But on November 4, 2021,
after lawsuits challenging the Mandate were filed across the country, the White House issued a press
release extending the deadline for full vaccination to January 18, 2022. 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). The OMB dutifully issued a new
determination rubberstamping that change. 86 Fed. Reg 63,418; attached to Declaration of Charles
(“Peeler Dec.”), Exhibit 11, at Ex. E. Plaintiffs thus now face a December 7, 2021, deadline for their
employees to receive a first dose of the Moderna vaccine. That timeline remains 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.
4
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 5 of 32
None of this should be allowed to happen because the Contractor Mandate is unlawful for
multiple, independent reasons. The Federal Property and Administrative Services Act, 40 U.S.C. § 121
(the “Procurement Act”), the authority under which the President 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 did not put the Contractor Mandate through the
rigors of notice-and-comment before issuance, 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.
In short, the President’s purported rationale for this mandate is pure pretext. The Mandate
will impose massive, irreparable harm on the State Plaintiffs, which all have instrumentalities and
agencies that serve as federal contractors and subcontractors. Plaintiffs receive billions of dollars
under federal contracts.2 Absent immediate relief from this Court, the Contractor Mandate 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.
And that is just for the Mandate as it exists right now—there is no way to know what (inevitable)
amendments may put the state agencies in breach with no advance notice. This Court should
2 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 Margaret A. Amstutz, PhD (“UGA-1 Dec.”), Exhibit
13, 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 ($22 million); of Matthew K. Wilde (“BSU Dec.”), Exhibit 7, at ¶ 5 ($25 million);
Declaration of Donna Lybecker (“ISU Dec.”), Exhibit 8, at ¶ 5 ($23 million); Declaration of Finis E. St. John IV (“UAS
Dec.”), Exhibit 9, 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 10, at ¶ 5 ($811,000.00).
5
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 6 of 32
recognize this profound executive overreach for what it is and issue a preliminary injunction.3
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 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 Peeler Dec. at 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
3 The Contractor Mandate has been challenged in lawsuits across the country. 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
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 7 of 32
contractors and subcontractors. Id. at 1. EO 14042 gave no factual support for its summary
conclusion that the Order as promoted “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 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 (the “First Task Force Guidance”). Peeler Dec. at Ex. B. The First Task
Force Guidance has been amended on several occasions—on September 30, October 1, October 21,
November 1, and most recently on November 10, 2021 (the updated guidance is specifically referred
7
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 8 of 32
to as the “Current Task Force Guidance” and generally referred to as the “Task Force Guidance”).
Peeler Dec. at Ex. C; see also Safer Federal Workforce Task Force, What’s New? (last visited Nov. 19,
2021), https://www.saferfederalworkforce.gov/new/ (linking past amendments). 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. 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. C at 3. 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. Peeler Dec., Ex. B at 10, Q11.4 Thus,
4 See Safer Federal Workforce Task Force, FAQs: Federal Contractors (last visited Nov. 18, 2021),
https://www.saferfederalworkforce.gov/faq/contractors/. The Task Force’s Frequently Asked Questions were
previously within the First Task Force Guidance; however, they were removed from the Current Task Force Guidance
and are instead located on the Task Force website. The content published in response to each question remains the same.
8
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 9 of 32
the mandate “includes employees of covered contractors who are not themselves working on or in
connection with a covered contract.” Peeler Dec., Ex. C at 3. 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 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. D. The
Director referenced no research or data to support her conclusion and there was no opportunity for
the public to comment or submit data.
On September 30, 2021, in response to EO 14042, the First Task Force Guidance, and the
First OMB Determination, the FAR Council issued Class Deviation Clause 52.223-99 (“FAR
Deviation Clause”) with accompanying guidance. Peeler Dec. at Ex. F. 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. (emphasis added). The FAR
Council never published the FAR Deviation Clause in the Federal Register for the purpose of receiving
public comment. Several agencies have now implemented the FAR Deviation Clause by issuing
9
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 10 of 32
memoranda requiring compliance with the Mandate. See, e.g., Declaration of Jason Guilbeault (“AU
Dec”), Exhibit 1, at ¶ 6; Declaration of Jill Tincher (“UGA-1 Dec.”), Exhibit 3, at ¶ 7.
On November 16, 2021, however, the OMB Director issued a revised OMB determination
(the “Revised OMB Determination”) purporting to “rescind[] and supersede[] the Director’s prior
notice.” 86 Fed. Reg. 63,418 (Nov. 16, 2021); Peeler Dec. at Ex. E. The Revised OMB Determination
purports to be effective immediately and provides a limited notice-and-comment period through
December 16, 2021 under a purported waiver of the Procurement Policy Act’s ordinary requirements.
Id. 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, B, and C. The Guidance further recommended that before 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.
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 12, 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
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.
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.
10
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 11 of 32
agency contracts. Board of Regents Dec. at ¶ 18; see AU Dec. at ¶ 8; GA Tech Dec. at ¶ 7; UGA-1
Dec. at ¶ 6. 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 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.
Plus, the loss of technically-skilled employees will impact Plaintiffs’ ability to perform the services
required by their contracts, especially because it may not be possible to replace those employees in the
11
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 12 of 32
current labor market.8 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 Agriculture and Industries (“ADAI”),
which provides services for farmers and consumers of agricultural projects. Declaration of Richard
Stewart Pate (“ADAI Dec.”), Exhibit 14, 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 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). While
the precise number of ADAI’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 ADAI’s employees are likely in jeopardy of termination. Vaccine Doses
Administered, Alabama Public Health, https://bit.ly/3CL87rm. Thus, ADAI is likely to have
unvaccinated employees that will have to be removed from federal contracts, relocated, or disciplined.
Each Plaintiff faces this kind of choice.
8 See Georgia Department of Labor, Georgia Unemployment Rate Hits All-Time Low Amid Strong Job Growth (Nov. 18,
2021), https://bit.ly/2Z3fyeS (stating that Georgia’s unemployment rate dropped to 3.1 percent in October, the lowest
rate in Georgia’s recorded history); see also U.S. Bureau of Labor Statistics, State Employment and Unemployment
Summary (Oct. 22, 2021), https://www.bls.gov/news.release/laus.nr0.htm (stating that in the month of September,
“Nebraska and Utah had the lowest jobless rates, 2.0 percent and 2.4 percent, respectively. The rates in Georgia (3.2
percent) and Nebraska (2.0 percent) set new series lows.”).
12
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 13 of 32
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 necessary to “carry out” the Procurement Act. Id.
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.
13
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 14 of 32
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 purportedly takes 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 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
14
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 15 of 32
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); see BST Holdings, L.L.C. v. OSHA, No. 21-60845, 2021 U.S. App. LEXIS 33698, at *23 (5th
Cir. Nov. 12, 2021) (“[T]he major questions doctrine confirms that [a related] Mandate exceeds the
bounds of [executive] statutory authority.”). The decision whether millions of Americans must be
vaccinated is plainly one of “vast economic and political significance,” Ala. Ass’n of Realtors, 141 S. Ct.
at 2489, and one which Congress did not speak to 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. That is something no President has previously done and, if
upheld by the courts, would permit Presidents, at the stroke of a pen, 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. 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 does not authorize the President to issue public health
mandates, yet that is what he has done.
Third, the Mandate is also unlawful because no “reasonably close nexus” exists between 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
15
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 16 of 32
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 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 outdoors, or
employees who work in a socially distanced environment.
The Revised OMB Determination attempts to show a nexus between the Mandate and
economy and efficiency, but it is a plainly pretextual attempt to “find the best rationale” for a
preordained outcome. Dep't of Com. v. New York, 139 S. Ct. 2551, 2575 (2019). To begin with, the
Revised OMB Determination was announced and published only after a flood of lawsuits pinpointed
the mandate’s many legal failings. This naked attempt at post hoc rationalization violates the
“foundational principle of administrative law” that agencies may not “invoke belated justifications” to
shore up “convenient litigating positions.” Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140
S. Ct. 1891, 1909 (2020) (citations and quotations omitted). This Court should recognize the
Administration’s attempt to manufacture unnecessary delay for what it is.
Regardless, OMB’s “economy and efficiency” analysis involves no evidence and little
reasoning that is specific to federal contractors. OMB admits that the Mandate is being issued to
16
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 17 of 32
combat “a once in a generation pandemic” which threatens the “health and safety of the American
people,” and reaches “all Americans.” 86 Fed. Reg at 63,423; Peeler Dec. at Ex. E. But that does not
explain why the Mandate will improve efficiency or economy in federal contracting. OMB cites
general statistics about how COVID-19 spreads but does not assert that past spread has harmed the
efficiency or economy of any federal contracts. Nor has OMB explained why vaccination, rather than
simply masking, social distancing, or other measures, is necessary to prevent federal contracts from
being disrupted by COVID-19 (assuming, again, that has happened). And OMB ignores the
tremendous scope of the Mandate. Even assuming OMB could justify vaccinating some employees
who work on federal contracts, that does not explain why non-contract employees must be vaccinated,
much less those that work outdoors or at home.
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 inevitably
follow from the Contractor Mandate, will result in contractors losing individuals servicing federal
contracts that have valuable institutional knowledge. Those employees (with their years of experience
and specialized training) will not be replaceable, especially given critical labor shortages ongoing. See
GDPH Dec., ¶ 10. 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
(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.
17
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 18 of 32
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” of 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.” Id. § 1707(a). 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.
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 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.,
18
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 19 of 32
BVRHS Dec. at ¶ 12 (noting the CDC has already sought to modify contracts to include the
Contractor Mandate).
So, 41 U.S.C. § 1707(a) plainly required the Defendants to satisfy the notice-and-comment
provisions of the Procurement Policy Act with respect to the Task Force Guidance and the FAR
Deviation Clause, but that did not happen. Indeed, the Defendants have all but admitted that was
unlawful by issuing a Revised OMB Determination attempting to justify the previous lack of notice
and comment, citing 41 U.S.C. § 1707(d). But the Revised OMB determination does not solve the
notice-and-comment problem. The determination cites the waiver in § 1707(d), which permits an
agency to issue a new procurement policy, regulation, or procedure without first undergoing public
notice and comment only when the policy is “effective on a temporary basis” and “urgent and
compelling circumstances make compliance with the requirements impracticable.” Id. § 1707(d), (e).
Those elements are not met here. First, neither the Task Force Guidance nor the FAR Deviation
Clause are temporary. The contractual provision that Plaintiff Agencies are being asked to sign has
no expiration date—it will remain in the contract for its entire duration. Peeler Dec. at Ex. F. And
there is no automatic end to the Task Force Guidance, either. Once contractors commit themselves
to comply with the FAR Deviation Clause, they must comply indefinitely. That is not the kind of
“temporary” policy that § 1707(d) was meant to cover.
Second, no urgent and compelling circumstances warrant this departure from normal practice.
Courts “narrowly construe[] and only reluctantly countenance[]” a departure from the ordinary notice-
and-comment requirements, which is permissible only in “emergency situations.” Jifry v. FAA, 370
F.3d 1174, 1179 (D.C. Cir. 2004); see Sorenson Communs. Inc. v. FCC, 755 F.3d 702, 705–06 (D.C. Cir.
2014). Here, OMB’s putative rationale for impracticability due to urgent and compelling
circumstances is inherently contradictory. As explained above, if the Mandate is not meant to further
the economy and efficiency of federal contracting, it is unlawful. See supra at I.A.2. But the “urgent
19
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 20 of 32
and compelling” circumstances that OMB points to have nothing to do with federal contracting.
According to OMB, notice and comment is impracticable because “this is a once in a generation
pandemic” which threatens the “health and safety of the American people,” and reaches “all
Americans.” 86 Fed. Reg at 63,423; Peeler Dec. at Ex. E. As already explained, that does nothing to
connect the Mandate to economy and efficiency in federal contracting. And even if OMB could show
some connection, it would still be required to show that the harm to federal contracting would occur
within the few months before normal notice and comment could be completed. It has not, and
cannot, make that showing.
As if that were not enough, the revised determination also pushes back the deadline for
contractors to comply with the mandate while simultaneously arguing that it is responding to “urgent
and compelling” circumstances.9 OMB offers no explanation for that contradiction. Nor could it,
because there is no urgency. The pandemic has been ongoing since early 2020. OMB gives no
explanation for why “economy and efficiency” in federal contracting did not require action until now.
The answer is obvious—the only thing that has changed is the President’s decision to mandate
vaccinations by whatever means necessary. The incongruence between the urgency that OMB claims
and the circumstances surrounding its actions confirms that there is no reason the revised guidance
could not have undergone normal notice and comment.
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
9 OMB suggests this was necessary to “align[] the vaccination deadline for Federal contractors with the vaccination
deadline for private companies” under OSHA’s “Emergency Temporary Standard.” Peeler Dec. at Ex. E. That makes
no sense, because the OSHA Temporary Emergency standard has been stayed by Fifth Circuit Court of Appeals. BST
Holdings, L.L.C., 2021 U.S. App. LEXIS 33698, at *27.
20
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 21 of 32
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 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
21
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 22 of 32
States, 59 Fed. Cl. 390, 396 (Fed. Cl. 2004). Nor did the FAR Council 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 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. § 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
22
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 23 of 32
principle of nondelegation “is a principle universally recognized as vital to the integrity and
maintenance of the system of government ordained by the 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 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 rule to Congress’s attempt to delegate issues that would authorize a departure “from
the Constitution’s traditional distribution of authority”), vacated for reh’g en banc on other grounds, 2 F.4th
576, 577 (2021).
23
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 24 of 32
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 the 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 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
24
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 25 of 32
“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). That is especially true
where Congress attempts to regulate purely noneconomic inactivity like an individual’s choice to not
receive a vaccination, which exceeds Congress’s powers under the Commerce Clause. See BST
Holdings, 2021 U.S. App. LEXIS 33698, at *21 (holding that vaccine mandates “likely exceed[] the
federal government’s authority under the Commerce Clause because [they] regulate[] noneconomic
inactivity that falls squarely within the States police power.”). 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 purports to regulate purely noneconomic inactivity, 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. States have the authority to determine the vaccination policies
that should be applicable to their citizens. When the federal government seeks to infringe on 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 has 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,
25
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 26 of 32
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 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
26
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 27 of 32
50% of Georgians are fully vaccinated; the remaining 50% have yet to obtain a vaccine. Ga. Dep’t of
Pub. 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 or voluntary departures by employees.10 See GA Tech
Dec., ¶ 13; UGA-1 Dec., ¶¶ 4–6. For example, Georgia Tech employs approximately 20,182
employees, including student employees, the majority of whom will likely be subject to the Contractor
Mandate. GA Tech Dec., ¶¶ 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. With high levels 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., ¶ 14; ADAI Dec., ¶ 14; BSU Dec., ¶ 14; ISU Dec., ¶ 11; UI Dec., ¶ 14.
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., ¶ 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., ¶ 6 (UGA
received $56 million in fiscal year 2021); AU Dec., ¶ 7 (Augusta University received $17.1 million in
fiscal year 2021); UI Dec., ¶ 5 (University of Idaho received $22 million); BSU Dec., ¶ 5 (Boise State
University received $25,057,355); ISU Dec., ¶ 5 (Idaho State University received $25,057,355); UAS
Dec., ¶ 6 (putting the current value of federal contracts to the University of Alabama, the University
10 According to a Kaiser Family Foundation poll conducted in October 2021, more than a third of unvaccinated workers
say they would leave their job if their employer required vaccination or testing, rising to seven in ten if no testing option
was available. See KFF COVID-19 Vaccine Monitor: October 2021 at Figure 10, https://bit.ly/2Z3iEzw.
27
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 28 of 32
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. 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 of having these challenging and exciting research
opportunities available to them via the federal contracting process.” UGA-1 Dec., ¶ 10; see, e.g., AU
Dec., ¶ 18; GA Tech Dec., ¶ 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
28
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 29 of 32
The balance of the equities and public interest factors also weighs 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 public interest 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 must
choose either to keep their job by complying with an unlawful and unconstitutional mandate or to
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 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
Plaintiffs respectfully ask this Court to preliminarily enjoin Defendants from implementing
and enforcing the Contractor Mandate.
Respectfully submitted this 19th 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 for Plaintiffs the
Stephen Petrany State of Georgia, Governor Brian P. Kemp in his
Solicitor General official capacity, Commissioner Gary W. Black in his
Drew F. Waldbeser (Admitted Pro Hac Vice)
29
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 30 of 32
Deputy Solicitor General official capacity; and the Board of Regents of the
Ross W. Bergethon University System of Georgia
Deputy Solicitor General
Office of the Attorney General Troutman Pepper Hamilton Sanders LLP
40 Capitol Square, S.W. Bank of America Plaza, Suite 3000
Atlanta, Georgia 30334 600 Peachtree Street N.E.
Tel.: (404) 458-3378 Atlanta, Georgia 30308-2216
Fax: (404) 656-2199 Tel.: (404) 885-3000
dwaldbeser@law.ga.gov Fax: (404) 962-6515
Harold.Melton@Troutman.com
Counsel for State of Georgia Plaintiffs
Counsel for State of Georgia Plaintiffs
/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
Local Counsel for Plaintiff-States and Agencies
STATE OF ALABAMA /s/William G. Parker, Jr.
Office of the Attorney General Steve Marshall William G. Parker, Jr. ((Admitted Pro Hac
Vice)
/s/ Edmund G. LaCour Jr. General Counsel
Edmund G. LaCour Jr. (Admitted Pro Hac Office of the Governor
Vice) Alabama State Capitol
Solicitor General 600 Dexter Avenue, Room N-203
Thomas A. Wilson (Admitted Pro Hac Vice) Montgomery, Alabama 36130
Deputy Solicitor General Tel.: (334) 242-7120
Office of the Attorney General Fax: (334) 242-2335
501 Washington Ave. Will.Parker@governor.alabama.gov
Montgomery, AL 36130
Tel.: (334) 353-2196 Counsel for Governor Kay Ivey
Fax: (334) 353-8400
Edmund.LaCour@AlabamaAG.gov
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
30
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 31 of 32
W. Scott Zanzig (Admitted Pro Hac Vice) Brant M. Laue (Pro Hac Vice 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
STATE OF SOUTH CAROLINA STATE OF SOUTH CAROLINA
Office of South Carolina Attorney General Alan Office of Governor Henry McMaster
Wilson
/s/ Thomas A. Limehouse, Jr.
/s/ J. Emory Smith, Jr. Thomas A. Limehouse, Jr. (Admitted Pro Hac
J. Emory Smith, Jr. (Admitted Pro Hac Vice) Vice)
Deputy Solicitor General Chief Legal Counsel
Wm. Grayson Lambert (Admitted Pro Hac
Thomas T. Hydrick (Pro Hac Vice Vice)
forthcoming) Senior Legal Counsel
Assistant Deputy Attorney General Michael G. Shedd (Admitted Pro Hac Vice)
Deputy Legal Counsel
Office of the Attorney General Office of the Governor
Post Office Box 11549 South Carolina State House
Columbia, South Carolina 29211 1100 Gervais Street
Tel.: (803) 734-3680 Columbia, South Carolina 29201
Fax: (803) 734-3677 (803) 734-2100
esmith@scag.gov tlimehouse@governor.sc.gov
Counsel for the State of South Carolina 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
Morrisey Reyes
/s/ Melissa A. Holyoak
_/s/ Lindsay See Melissa A. Holyoak (Admitted Pro Hac Vice)
Lindsay See (Pro Hac Vice 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
31
Case 1:21-cv-00163-RSB-BKE Document 55 Filed 11/19/21 Page 32 of 32
CERTIFICATE OF SERVICE
I hereby certify that on November 19, 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
This 19th 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
32
File and source
- File
- Georgia_SDGA_1-21-cv-00163_11th-21-14269__doc-055__att-0.pdf
- Size
- 355,264 bytes
- SHA-256
- 7149124f9453c42b8b29b2f5acb112c0dcd87524c6996adab59c964ddf059283
- Original
- storage.courtlistener.com