Florida Mdfl 8 21 Cv 02524 11Th 22 10257 Doc 026 Att 0

Summary

Defendants' sur-reply in opposition to Plaintiff's motion for a preliminary injunction and amendment, filed December 3, 2021 as Document 26 in State of Florida v. Bill Nelson, in his official capacity as Administrator of NASA, et al., No. 8:21-cv-2524-SDM-TGW, in the U.S. District Court for the Middle District of Florida. The brief argues that Florida is unlikely to succeed on its statutory claims and that EO 14042 and its implementing regulations are actions of the government as a market participant rather than regulatory action. It contends that the President, the OMB Director and the FAR Council acted within authority under 40 U.S.C. § 121(a) and 41 U.S.C. § 1303(a)(2)(A), and that the Order does not violate the Competition in Contracting Act. A closing section argues the balance of the equities favors Defendants. The filing runs 17 pages and ends with a certificate of service.

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Case 8:21-cv-02524-SDM-TGW Document 26 Filed 12/03/21 Page 1 of 17 PageID 393




                     IN THE UNITED STATES DISTRICT COURT
                     FOR THE MIDDLE DISTRICT OF FLORIDA

  STATE OF FLORIDA,
                       Plaintiff,
                v.
                                                   No. 8:21-cv-2524-SDM-TGW
  BILL NELSON, in his official capacity
  as Administrator of NASA, et al.,
                       Defendants.

  DEFENDANTS’ SUR-REPLY IN OPPOSITION TO PLAINTIFF’S MOTION
       FOR A PRELIMINARY INJUNCTION AND AMENDMENT

       Florida has filed an entirely new complaint, and a “reply” that is even longer

 than its opening preliminary injunction motion. But it has done nothing to change the

 legal principle at the heart of this case: “Like private individuals and businesses, the

 Government enjoys the unrestricted power to produce its own supplies, to determine

 those with whom it will deal, and to fix the terms and conditions upon which it will

 make needed purchases.” Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940).

 Contrary to the manner in which Florida has framed this dispute, EO 14042 and its

 implementing regulations are not actions taken by the President in a regulatory

 capacity. Instead, they are better viewed as the actions of the CEO of the Executive

 Branch issuing a policy for how the government will act as a market participant—

 exactly the type of action Presidents have taken, Congress has accepted, and courts

 have affirmed for half a century. Florida’s procedural complaints also do not stand up

 to scrutiny.   As another court recently held, EO 14042 and its implementing

 regulations “followed the procedures required by statute” and “provide[] ample
Case 8:21-cv-02524-SDM-TGW Document 26 Filed 12/03/21 Page 2 of 17 PageID 394




 support for the premise that a vaccine mandate will improve procurement efficiency.”

 Kentucky v. Biden, No. 3:21-CV-00055-GFVT, 2021 WL 5587446, at *10 & 13 (E.D.

 Ky. Nov. 30, 2021). Florida has failed to carry its heavy burden to justify preliminary

 relief—relief that would turn our federal system on its head by preventing the United

 States from entering contracts with third parties on its own terms.

 I.    Florida Is Still Unlikely To Succeed On Its Statutory Claims.

       A.     The Government Complied With Applicable Statutory Authority.

       Florida’s reply ignores that the President, OMB Director, and the FAR Council

 are all acting within their well-settled statutory authority. Defendants are not arguing

 that the President “issue[d] regulations that bind third parties himself.” Reply at 7.

 The President and the OMB Director have issued government-wide policies and

 directives, the FAR Council is working on a government-wide rulemaking for Federal

 contractors, and in the meantime, individual agencies have used their agency-specific

 authority to implement the President’s directive within their respective agencies.

       All parties agree that “Section 121(a) authorizes the President to ‘direct[]’ the

 exercise of procurement authorities throughout the government.” Reply at 7 (citing

 40 U.S.C. § 121(a)); id. at 10. Florida acknowledges that the “President could invoke

 this authority to direct, for example, the FAR Council to issue a government-wide

 procurement regulation.” Id. But Florida ignores that this is exactly what the President

 did when he directed “[t]he [FAR] Council, [to] the extent permitted by law, [to]

 amend the Federal Acquisition Regulation.” EO, § 3. And FAR Council is doing just

 that. FAR Case No. 2021-021, https://perma.cc/ZQ4Y-8Y9W.


                                            2
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       Florida’s brief focuses on what happens before the FAR Council finalizes its

 government-wide regulation, when the Executive Order directs agencies “to exercise

 any applicable authority to ensure that contracts” covered by the Order “include the

 clause” requiring vaccinations. EO, § 3(b); id. § 2. Florida acknowledges that 41

 U.S.C. § 1303(a)(2)(A) authorizes agencies to issue “regulations essential to

 implement Government-wide policies and procedures within the agency.” Reply at 7.

 And agencies have used that statutory authority and other pre-existing procurement

 authorities, consistent with procurement regulation FAR 1.404, to issue agency-

 specific class deviations directing contracting officers to include the clause into

 contracts until the FAR Council issues its final government-wide regulation. 1 Florida

 does not appear to challenge each agency’s independent authority to do so.

       B.     OMB’s Determination Demonstrates The Required Nexus To
              Efficiency and Economy in Procurement Required By FPASA.

       The President is well-within his power to direct policies regarding federal pro-

 curement because 40 U.S.C. § 121(a) authorizes him to “prescribe policies and direc-

 tives that the President considers necessary” for federal procurement. “‘When the

 President acts pursuant to an express or implied authorization of Congress, his author-

 ity is at its maximum.’” AFL-CIO v. Kahn, 618 F.2d 784, 787 n. 13 (D.C. Cir. 1979)

 (quoting Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 635–36 (Jackson, J., con-

 curring)). Florida is wrong to argue that the power exercised here to direct federal


 1
   See, e.g., NASA Class Deviation 21-03A, https://perma.cc/7VQH-X38F; Memo. for All GSA
 Contracting Activities, https://perma.cc/M9J6-7L4D; DoD Memo re Class Deviation,
 https://perma.cc/XZ7J-5U9Y.


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 procurement is “based on silence from Congress.” Reply at 12. Congress expressly

 authorized the President to prescribe federal procurement policies so long as those pol-

 icies are “consistent” with U.S.C. Title 40, Subtitle I. In other words, Presidential

 procurement policies are authorized so long as they “reasonably relate[] to the Pro-

 curement Act’s purpose of ensuring efficiency and economy in government procure-

 ment” as described in 40 U.S.C. § 101. 2 Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164,

 170 (4th Cir. 1981); accord UAW v. Chao, 325 F.3d 360, (D.C. Cir. 2003); Farkas v. Tex.

 Instrument, Inc., 375 F.2d 629, 632 n.1 (5th Cir. 1967). 3

         The President here set a government-wide policy of requiring certain

 contractors to include a clause requiring compliance with Task Force Guidelines that

 the OMB Director determines would promote economy and efficiency in

 procurement. Order, § 2(a). The OMB Director’s robust explanation that requiring

 contractors to comply with the Guidelines promotes economy and efficiency easily

 satisfies the “lenient” nexus requirement in FPASA. Chao, 325 F.3d at 366. Florida’s

 arguments to the contrary, Reply at 10–12, have no basis in the text of the statute, have

 no support from any case law, and ignore decades of precedent.

        C.      EO 14042 and its Implementing Guidance Do Not Violate the
                Competition in Contracting Act.

        The EO does not violate the Competition in Contracting Act (CICA) because it



 2
   Defendants agree that Section 101 is not a “grant of authority.” Reply at 10–11. If anything, Section
 101 supplies a limiting principle. Because Section 121 requires any Presidential policy to be consistent
 with the rest of the Act, Section 101 sets an outer bound on the President’s FPASA authority.
 3
   Fifth Circuit decisions handed down prior to the close of business on September 30, 1981 are binding
 precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).


                                                    4
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 does not “operat[e] as a categorical ban on contractors.” Reply at 13. Contractors

 who refuse to agree to a performance clause in a government contract are making a

 choice not to agree to the government’s terms—that does not make the contract’s

 requirements illegal. Nothing in National Government Services v. United States, 923 F.3d

 977 (Fed Cir. 2019), holds to the contrary. As Defendants noted in their earlier

 opposition brief, National Government Services upholds “the unremarkable proposition

 that a solicitation requirement . . . is not necessarily objectionable simply because that

 requirement has the effect of excluding certain offerors who cannot” or (as in this case)

 simply refuse to “satisfy that requirement.” 923 F.3d at 985–86. Even the portion of

 the opinion Florida invokes teaches that solicitation requirements excluding bidders

 do not violate CICA when an agency includes the requirement because it will “likely

 result in reduced overall cost for the procurement.” Id. at 986. In other words, when

 the Government includes a clause that promotes efficiency and economy, it does not

 run afoul of the CICA, even if some contractors refuse to enter a contract with that

 clause and decline to submit a bid. For the same reason, the district court in Kentucky

 erred when it held that the EO 14042 violated CICA based on its belief that the

 contractor mandate excludes contractors who offer “the best value to the

 government.” 2021 WL 5587446, at *8 (quoting Nat'l Gov't Servs., 923 F.3d at 990).

 Here, the OMB Director determined that contractors with fully vaccinated workforces

 offer the best value to the government, so including the clause does not violate CICA.

       D.     The FAQs Have Not Yet Been Approved By the OMB Director.

       Florida’s concern about the FAQs is unfounded. The FAR Council’s COVID


                                             5
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 deviation clause contains this language: “The Contractor shall comply 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/.” Florida argues

 that requiring compliance with the current FAQs is improper since the OMB Director

 has not yet made an efficiency and economy determination. Reply at 14. But the

 Government is not requiring compliance with the current FAQs. That clause language

 refers to the FAQs that the Director previously adopted (that determination has been

 rescinded).    The bottom line is that unless the OMB Director determines that

 compliance with any particular set of FAQs promotes efficiency and economy in

 procurement, compliance with the posted FAQs is not required. See EO, § 2(a), (c). 4

        E.     OMB’s Determination Satisfies Any Notice Requirement.

        Section 1707 does not apply because the OMB Director was acting pursuant to

 Presidential authority. But to the extent that 41 U.S.C. § 1707 applies, there is no

 dispute that the OMB Determination satisfied any notice requirement.                   Section

 1707(b) requires notice of a “proposed procurement policy” to be published in the

 Federal Register and open for comment for at least 30 days. 41 U.S.C. § 1707(b).

        While Section 1707 usually requires a procurement policy to “not take effect

 until 60 days after it is published for public comment in the Federal Register,” that


 4
   Even if the FAQs were binding, Florida also fails to articulate what would be “unlawful” about
 incorporating the FAQs by reference.


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 requirement can be waived if “urgent and compelling circumstances make compliance

 with the requirements impracticable.” 41 U.S.C. 1707(d). The OMB Determination

 describes the “urgent and compelling circumstances” that required the determination

 take immediate effect while receiving comments, which is currently open until

 December 16, 2021. 86 Fed. Reg. at 63,423–24.

       There is no precedential or textual support for Florida’s conclusory contention

 that § 1707’s urgent-and-compelling-circumstances waiver “is far more demanding

 than the APA’s ‘good cause’ exception.” Reply 15. Florida cites to no regulations,

 cases, or examples in support of that contention. FAR section 1.501-3(b), which

 implements the statutory exception in § 1707(d), states that “Advance comments need

 not be solicited when urgent and compelling circumstances make solicitation of

 comments impracticable prior to the effective date of the coverage, such as when a

 new statute must be implemented in a relatively short period of time.” Indeed, another

 district court in this Circuit held that urgent and compelling circumstances existed

 when an interim Department of Defense procurement rule was made effective

 immediately because it was “intended ‘to implement’ a new statute.” United States v.

 AEY, Inc., 603 F. Supp. 2d 1363, 1376 (S.D. Fla. 2009). And the Executive Branch

 regularly invokes § 1707(d) to harmonize deadlines and enable regulatory certainty

 and to clarify compliance obligations, as it did here. Compare, e.g., FAR: Non-

 Retaliation for Disclosure of Compensation Information 81 Fed. Reg. 67732 (Sept. 30,

 2016), with 86 Fed. Reg. at 63423-24; see also 66 Fed. Reg. 17,754, 17,755 (Apr. 3,

 2001) (invoking § 1707(d) to immediately stay a FAR rule because “otherwise the rule

                                           7
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 imposes burdens that the Government and contractors are not prepared to meet”).

         The OMB Determination satisfies the “urgent and compelling circumstances”

 requirement because it implements policy pursuant to a new Executive Order. See

 AEY, 603 F. Supp. 2d at 1376. And it would have been impracticable and create

 regulatory uncertainty for the Determination, which revoked prior policy, to become

 effective after the prior policy’s deadline. See 86 Fed. Reg. at 63,423–24. Another court

 found urgent and compelling circumstances here because “the compliance date was

 delayed to benefit federal contractors and ensure that they would have sufficient time

 to comply with the mandate.” Kentucky, 2021 WL 5587446, at *12.

         Florida also suggests, for the first time in its reply, that urging agencies to use

 their existing authorities to include clauses in contracts before the FAR is amended

 would be “inconsistent with § 1707.” Reply at 16–17 (citing Navajo Refining Co. L.P.,

 v. U.S., 58 Fed. Cl. 200, 207–09 (2003)). First, Florida waived this potential argument

 by raising for the first time in a reply brief. Sapuppo v. Allstate Floridian Ins. Co., 739

 F.3d 678, 682 (11th Cir. 2014). 5 Second, the Navajo court explained that while the

 predecessor to Section 1707 “does not specifically address class deviations,” “changes

 in procurement policy” are covered by the section. Navajo, 58 Fed. Cl. at 209. In other

 words, only the change in policy needs to be published—not every single class

 deviation. And here, the OMB Determination that establishes government-wide

 procurement policy has been published in accordance with § 1707.


 5
  While Florida was free to “brief additional issues raised by OMB’s [November Determination,” ECF
 No. 19 & 20 (Order), it was not authorized to raise entirely unrelated issues for the first time on reply.


                                                     8
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       F.     OMB Director’s Determination Does Not Violate the APA.

              1.     The OMB Director’s Determination Is Not Subject To the APA.

       Florida raises two arguments for why the APA applies to the OMB Director

 exercising presidential authority, but both miss the mark. Reply 19–20. First, Florida

 argues that the President does not have the authority to direct procurement. But, as

 explained above, the EO and the OMB Director’s determination are policy determi-

 nations and completely consistent with FPASA. See infra, I.A–B. Second, all parties

 agree that the President is not subject to the APA. See Reply at 20 (citing Franklin v.

 Mass., 505 U.S. 788, 800–01 (1992)). Florida does not challenge the President’s ability

 to delegate pursuant to 3 U.S.C. § 301 the decision of whether the Guidelines promote

 economy and efficiency to the OMB Director. And Florida cites no binding—or even

 circuit—authority for the proposition that presidential action delegated pursuant to

 Section 301 is reviewable under the APA. Reply at 20–21. Florida’s comparison to

 delegated Congressional authority is misplaced: although Congress specifically re-

 quires compliance with the APA for agencies exercising delegated legislative author-

 ity, “when Congress has imposed duties on the President, they have specifically

 mentioned that office.” Tulare Cty. v. Bush, 185 F. Supp. 2d 18, 28 (D.D.C. 2001),

 aff’d, 306 F.3d 1138 (D.C. Cir. 2002). There is a difference between directing agency

 actions and delegating Presidential authority, and adopting Florida’s position would

 deprive the President of the flexibility that Congress provided in Section 301. “Any

 argument suggesting that this action is agency action would suggest the absurd notion

 that all presidential actions must be carried out by the President him or herself in order


                                             9
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 to receive the deference Congress has chosen to give to presidential action.” Tulare,

 185 F. Supp. 2d at 28–29.

              2.     OMB’s Determination Is Not Arbitrary Or Capricious.

       Even assuming that the APA applies to the OMB Director’s Determination, the

 policy is not arbitrary or capricious. Florida does not dispute that arbitrary-and-

 capricious review is deferential and judicial review “simply ensures that the agency

 has acted within a zone of reasonableness and, in particular, has reasonably considered

 the relevant issues and reasonably explained the decision.” FCC v. Prometheus Radio

 Project, 141 S. Ct. 1150, 1158 (2021). Here, the OMB Determination clears that

 deferential standard: it includes a “thorough and robust economy-and-efficiency

 analysis” that “provide[s] ample support for the premise that” requiring federal

 contractor vaccination “will improve procurement efficiency.” Kentucky, 2021 WL

 5587446, at *12-13. Florida’s three principal arguments fail.

       First, the OMB Director considered costs of the mandate and found them to be

 low because vaccination is free and administrative costs associated with “distributing

 information” and “tracking employees’ vaccination status” are small. 86 Fed. Reg. at

 63,422. And to the extent compensation is part of the negotiations between parties, a

 contractor can always seek an equitable adjustment to cover any unexpected costs.

 Florida relatedly points to reliance interests, but ignores Defendants’ argument that

 the Executive Order exempts existing contracts, thus protecting reliance interests.

       Second, Florida points to one survey that claims 72% of unvaccinated workers

 would quit in lieu of vaccinations. Reply at 18. The OMB Determination considered

                                           10
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 that survey and cited to an article describing its findings, but ultimately concluded that

 real-life data from companies that had imposed a mandate was more compelling than

 a survey. 86 Fed. Reg. at 63425.

       Third, Florida claims that discussion of the impact of COVID-19 on American

 society makes this policy pretextual. Reply at 19. But Florida provides no reason why

 the Government cannot have a policy that has incidental benefits: increasing efficiency

 and economy in procurement by decreasing the spread of COVID-19 among federal

 contractors is not an impermissible objective merely because it will redound to the

 benefit of the economy and society generally. See Carmen, 669 F.2d at 821 (presidential

 exercise of FPASA authority does not “become[] illegitimate if, in design and

 operation, the President’s prescription, in addition to promoting economy and

 efficiency, serves other, not impermissible, ends as well”). The OMB determination

 “provided ample support” for its economy-and-efficiency rationale, and “‘a court may

 not reject an agency’s stated reasons for acting simply because the agency might also

 have had other unstated reasons.’” Kentucky, 2021 WL 5587446, at *13 (quoting Dep’t

 of Com. v. New York, 139 S. Ct. 2551, 2575-76 (2019)).

       G.     The FAR Council Memo Is Not Final Agency Action.

       As Defendants explained in their response, the APA does not apply to the FAR

 Council Memo because it is not final agency action. Response at 28–29; see also Ken-

 tucky, 2021 WL 5587446 at *3. Florida first argues that this guidance is the “consum-

 mation of the agency decisionmaking process” because at least some agencies are

 following it. Reply at 21. Florida cites no case law in support of that proposition, and


                                            11
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 for good reason: if adopted, that argument would convert any non-binding guidance

 into final agency action any time any agency acted consistent with that guidance. Sec-

 ond, there is no dispute that the FAR Council is in the process of revising the FAR.

 When promulgated, the FAR Council’s amendment to the FAR will be a binding,

 government-wide regulation—the challenged interim guidance is not.6

        H.      The Challenged Actions Are Constitutional.

        Florida offered no reply in support of its non-delegation doctrine argument.

 And for its Spending Clause argument, EO 14042 and its implementing guidance un-

 ambiguously put contractors on notice of any obligations. Pennhurst State Sch. & Hosp.

 v. Halderman, 451 U.S. 1, 17 (1981), requires nothing more, which is why Pennhurst’s

 holding does not apply to contracts. See Benning v. Georgia, 391 F.3d 1299, 1307 (11th

 Cir. 2004). Pennhurst concerned a federal grant program that “was unclear as to

 whether the states incurred any obligations at all by accepting federal funds.” See id.

 (emphasis added). But “the existence of the condition itself” here is “explicitly obvious”

 because it is included as a contract clause. Id. (emphasis added); see also Kentucky, 2021

 WL 5587446 at *7 n.9 (rejecting a similar Spending Clause argument on this basis).

 II.    Florida Still Has Not Shown Irreparable Harm.

        Florida’s failure to show imminent harm attributable to EO 14042 is fatal to its

 request for emergency relief. In its initial motion, Florida identified 21 GSA future

 vending contracts. Defendants responded that of these putative contracts, many


 6
  Florida alludes to use of agency- or contract-specific authority to add COVID safety clauses, Reply
 at 22, but fails to challenge any such action and raised the issue for the first time in its reply.


                                                 12
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 would not be awarded until 2023 or 2024, and that only two would be awarded by

 April 2022. Response at 32–33. Defendants also noted that all of these GSA contracts

 were below the Simplified Acquisition Threshold (SAT), and thus were expressly

 beyond the scope of EO 14042. Id. at 10, 33. Florida effectively concedes both points

 in its reply. It makes no attempt to show why any potential GSA contracts shows

 imminent harm, nor does Florida show that any of these will exceed the SAT. Florida

 now pivots to “new evidence presented in its amended complaint and included with

 [its] amended [preliminary injunction] motion.” Reply at 23.

       Florida’s refashioned efforts to meet its burden fare no better. Florida avers that

 “it contracts with the federal government as a matter of course,” and “that it plans to

 continue bidding on government contracts.” Reply at 24. In support, Florida claims

 that since October 15, 2021, the University of Florida (UF) “has submitted 37

 proposals for new federal research contracts or subcontracts,” Dkt. 24-3 ¶ 3, and

 further notes that UF “intends to continue to submit proposals for federal research

 projects” “[d]uring the next twelve months.” Id. at ¶ 5. It is unclear whether these are

 grants and exempt from EO 14042’s requirements, but regardless these bare assertions

 cannot support the “extraordinary and drastic” relief that Florida seeks now. Mazurek

 v. Armstrong, 520 U.S. 960, 972 (1997). There is no evidence about whether any

 proposal has been granted or denied, and if denied, why. Florida offers no evidence

 to show that any proposal falls within the ambit of EO 14042, or that any award will

 be contingent on the inclusion of a COVID-19 safety clause, let alone that the award

 of any contract will occur in the near future. Even had Florida shown with certainty

                                           13
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 that it would lose a contract, Florida would still fail to meet its burden to demonstrate

 irreparable harm.        As Defendants noted in their opposition, Florida could seek

 monetary redress under the Contract Disputes Act. See Response at 11, 34. 7

         Having failed to carry its burden to identify any contract award/rebid for which

 EO 14042 would require the inclusion of a COVID-19 safety clause, Florida leans

 heavily on its purported sovereign injury to show irreparable harm. Noting Florida’s

 “statewide ban on vaccine mandates by public employers”—legislation enacted during

 this litigation, after Defendants filed their opposition brief—Florida asserts that its

 “inability to enforce its duly enacted plans clearly inflicts irreparable harm.” Reply at

 23-24. But nothing in EO 14042 purports to “compel every federal contractor in

 [Florida] to violate state law”; it directs federal-contracting policy. And to the extent

 state law interferes with a federal contract, state law does not apply. Florida is free to

 decide not to contract with United States. But what it cannot do, and seeks to do here,

 is to compel the United States to contract with Florida (and with private parties) on

 terms of Florida’s choosing. “Those wishing to do business with the Government must

 meet the Government’s terms; others need not.” Kahn, 618 F.2d at 794.

         But Florida’s real focus is not that its laws are preempted or its “sovereign

 interests and public policies” are infringed, Reply at 24, but that the EO purportedly

 harms a subset of its citizenry; namely, Floridians who work for federal contractors



 7
  Having failed to address this point in its reply, Florida has conceded that an adequate remedy at law
 would exist to address the (hypothetical) event of Florida losing a contract. McCray v. Deitsch & Wright,
 P.A., 2019 WL 5269074, *2 (M.D. Fla. 2019) (collecting cases on failure to respond).


                                                   14
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 who do not wish to receive a COVID-19 vaccine. To the extent Florida seeks to litigate

 on its citizens’ behalf, it cannot do so. “A State does not have standing as parens patriae

 to bring an action against the Federal Government.” Alfred L. Snapp & Son, Inc. v.

 Puerto Rico, 458 U.S. 592, 610 n.16 (1982); see also Florida ex rel. Cobb v. U.S. Dep’t of

 Justice, No. 5:10-cv-118, 2010 WL 3211992, at *1 (N.D. Fla. Aug. 12, 2010), affirmed

 440 Fed. App’x. 860 (11th Cir. 2011). Whatever injuries Florida citizens may claim

 because they are employed by a contractor that profits from the Federal Government,

 the State of Florida is not in a position to bring suit on their behalf.

 III.   The Public Interest and Balance of Equities Favor Defendants.

        As defendants previously explained, the balance of the equities and of the public

 interest tilt decisively in the federal government’s favor for three reasons. First,

 enjoining EO 14042 would harm the public interest by allowing federal procurement

 to be disrupted by contractors exposed to, infected with, or killed by COVID-19. Put

 simply, enjoining EO 14042 means it will take the government longer to resume

 normal, pre-pandemic operations. Second, enjoining EO 14042 would frustrate the

 public’s “unquestionably [] compelling interest” in “[s]temming the spread of COVID-

 19.” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020). Third,

 enjoining a government policy is an act of “judicial intervention” that “alter[s] the

 legal status quo.” Nken v. Holder, 556 U.S. 418, 428–29 (2009). As discussed in

 Defendant’s response, any relief should merely block enforcement—not inclusion—of

 a COVID-19 safety clause in contracts between the federal government and Florida.




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Case 8:21-cv-02524-SDM-TGW Document 26 Filed 12/03/21 Page 16 of 17 PageID 408




 DATED: December 3, 2021            Respectfully submitted,

                                    BRIAN M. BOYNTON
                                    Acting Assistant Attorney General

                                    BRAD P. ROSENBERG
                                    Assistant Director

                                    /s/ Zachary A. Avallone
                                    ZACHARY A. AVALLONE
                                    KEVIN WYNOSKY
                                    Trial Attorneys
                                    U.S. Department of Justice
                                    Civil Division, Federal Programs Branch
                                    1100 L Street NW
                                    Washington, D.C. 20005
                                    (202) 514-2705
                                    Zachary.A.Avallone@usdoj.gov

                                    Counsel for Defendants




                                      16
Case 8:21-cv-02524-SDM-TGW Document 26 Filed 12/03/21 Page 17 of 17 PageID 409




                             CERTIFICATE OF SERVICE

        On December 3, 2021, I electronically submitted the foregoing document with

 the clerk of court for the U.S. District Court, Middle District of Florida, using the

 electronic case filing system of the Court. I hereby certify that I have served all parties

 electronically or by another manner authorized by Federal Rule of Civil Procedure

 5(b)(2).

                                          /s/ Zachary A. Avallone
                                          ZACHARY A. AVALLONE
                                          Trial Attorney
                                          U.S. Department of Justice


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