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Florida Mdfl 8 21 Cv 02524 11Th 22 10257 Doc 033 Att 0
Summary
Florida's 10-page supplemental brief in State of Florida v. Bill Nelson, et al., No. 8:21-cv-2524-SDM-TGW, in the U.S. District Court for the Middle District of Florida, Tampa Division, filed December 15, 2021 as Document 33. It answers four questions the court posed about the class deviation clauses implementing Executive Order No. 14042, 86 Fed. Reg. 50,985 (Sept. 9, 2021), and the requirements of 41 U.S.C. § 1707. The brief argues that the deviation clauses are procurement regulations subject to § 1707, that the district court has jurisdiction because 28 U.S.C. § 1491(b)(1) does not apply, and that the clauses were issued without the required notice and comment. It asks the court to preliminarily enjoin enforcement or implementation of the OMB rule and, under 5 U.S.C. §§ 702 and 706(2), to set aside the deviation clauses.
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No. 8:21-cv-02524-SDM-TGW · Doc. 33 · Docket on CourtListener
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Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 1 of 10 PageID 456
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STATE OF FLORIDA,
Plaintiff,
v. No. 8:21-cv-2524-SDM-TGW
BILL NELSON, et al.,
Defendants.
_________________________________/
FLORIDA’S SUPPLEMENTAL BRIEF
This Court asked the parties to file supplemental briefs addressing four
questions related to the deviation clauses that implement the challenged executive
order and the requirements of 41 U.S.C. § 1707. See Doc. 31. Florida addresses each
question below.
Before doing so, however, Florida wishes to highlight an issue that may inform
the Court’s consideration of these questions. Each of the deviation clauses uses the
contract clause drafted by the FAR Council. See FAR Council guidance at 4–5; Ex. 1.
That clause requires contractors to comply with guidance “published by the Safer
Federal Workforce Task Force.” FAR Council guidance at 5. Under the executive
order, the Task Force may only publish such guidance when the OMB Director
“approves” the guidance and makes an economy and efficiency finding. Exec. Order
No. 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86
Fed. Reg. 50,985, 50,985 (Sept. 9, 2021).
Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 2 of 10 PageID 457
As a result of this framework, the deviation clauses impose no obligations on
federal contractors unless and until the OMB Director approves the Task Force
guidance. OMB attempted to do so via the new OMB rule, which Florida challenges
on multiple grounds. If this Court preliminarily enjoins enforcement or
implementation of the new OMB rule, that will have the effect of nullifying the
deviation clauses because there will be no Task Force guidance with which contractors
must comply. In other words, even if this Court agrees with the government’s
contention that each agency is implementing its deviation clause pursuant to its own
authority (and that authority alone), those clauses have no effect absent OMB approval
of the Task Force guidance. For this reason, Florida respectfully submits that the Court
should at a minimum preliminarily enjoin enforcement or implementation of the new
OMB rule, which would render the deviation clauses a nullity.
I. SECTION 1707 APPLIES TO THE CLASS DEVIATIONS.1
Pursuant to the executive order, the government is using identical contract
clauses across its agencies, as reflected in each agency’s class deviation. See Ex. 1.
Section 1707 applies to each such deviation.
Section 1707 applies to “a procurement policy, regulation, procedure, or form
(including an amendment or modification thereto)” so long as two conditions are met.
1
The government argues that Florida waived any arguments related to the class deviations by raising
them for the first time in its reply. See Doc. 26 at 8. But Florida’s reply was also an amended motion
in response to the government taking new action, and the parties’ joint submission to this Court did
not limit the arguments Florida could raise. See Doc. 19. In any event, Florida’s argument that the
class deviations violate § 1707 is made in response to that new action—specifically the § 1707(d)
finding in the new OMB rule.
2
Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 3 of 10 PageID 458
41 U.S.C. § 1707(a)(1). Those conditions are (A) that it “relates to the expenditure of
appropriated funds,” and (B) that it either (i) “has a significant effect beyond the
internal operating procedures of the [issuing] agency,” or (ii) “has a significant cost or
administrative impact on contractors or offerors.” Id. The deviation clauses satisfy (A)
because they relate to government contracts and they satisfy (B) because they require
government contractors to mandate vaccination for millions of American workers.
The deviation clauses also relate to procurement, so the only question is whether the
deviation clauses are “polic[ies], regulation[s], procedure[s], or form[s].”
The deviation clauses are both procurement regulations and procurement
policies. They are procurement regulations because they impose burdensome and
unprecedented requirements on contractors. In other words, the deviation clauses
“create[] new law, rights, or duties.” Warshauer v. Solis, 577 F.3d 1330, 1337 (11th Cir.
2009). The government recognizes as much, which is why it is seeking to amend the
Federal Acquisition Regulation. But in the meantime, imposing these requirements
via class deviation does not exempt them from § 1707. See Navajo Refining Co. v. United
States, 58 Fed. Cl. 200, 209 (2003) (noting that “a class deviation may fall within any
of the various categories of procurement changes identified” in § 1707); see also FAR
§ 1.404 (“When an agency knows that it will require a class deviation on a permanent
basis, it should propose a FAR revision.”).
The government has already admitted that the class deviations are regulations.
In its surreply and at the hearing, the government asserted that it is implementing the
deviation clauses pursuant to 41 U.S.C. § 1303(a)(2)(A). See Doc. 26 at 3. That
3
Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 4 of 10 PageID 459
provision exempts from § 1303(a)(2)’s exclusivity rule certain “regulations relating to
procurement issued by an executive agency.” 41 U.S.C. § 1303(a)(2) (emphasis
added). 2 But if they are “regulations” then they are subject to § 1707.
The deviation clauses are also procurement policies because they are “[a]
standard course of action that has been officially established by an organization,
business, political party, etc.” Policy, Black’s Law Dictionary (11th. ed. 2019). The
government suggests that the deviation clauses are not procurement policies but
merely actions implementing the procurement policy set by the executive order and
the OMB rules. See Doc. 26 at 8. But that argument is inconsistent with the
government’s position that each agency is issuing “agency-specific class deviations.”
Id. at 3. The government cannot have it both ways. Florida’s position is that the new
OMB rule creates government-wide requirements. But if the government is arguing
otherwise, it cannot simultaneously argue that each class deviation is not a separate
procurement policy.
For these reasons, the deviation clauses are subject to § 1707.
2
At the hearing, the government argued that § 1303(a)(2) is an affirmative grant of authority. But that
provision merely explains that “regulations relating to procurement issued by an executive agency
[other than the FAR Council] shall be limited to” certain things. 41 U.S.C. § 1303(a)(2). Put
differently, it creates an exception to the FAR Council’s exclusivity, but it does not affirmatively
authorize any specific procurement regulation. Rather, an agency must identify statutory authority to
impose the requirements in any regulation it issues. The government has utterly failed to do so in each
of its class deviations.
4
Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 5 of 10 PageID 460
II. THIS COURT HAS JURISDICTION TO CONSIDER A CHALLENGE TO THE
DEVIATION CLAUSES.
Section 1491(b)(1) confers exclusive jurisdiction on the Court of Federal Claims
“to render judgment on an action by an interested party objecting to a solicitation by
a Federal agency for bids or proposals for a proposed contract or to a proposed award
or the award of a contract or any alleged violation of statute or regulation in
connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). 3
The Federal Circuit has interpreted § 1491(b)(1) to include disputes related to
“the application of” regulations to specific solicitations and contracts. See Land Shark
Shredding, LLC v. United States, 842 F. App’x 589, 593 (Fed. Cir. 2021). But challenges
to “the validity of a regulation governing a procurement must be brought in federal
district court under the Administrative Procedure Act.” Id. (citing Southfork Sys., Inc.
v. United States, 141 F.3d 1124, 1135 (Fed. Cir. 1998)). For the reasons explained
above, the class deviations are procurement regulations, and this court has jurisdiction.
At least two courts, relying on these same cases, have agreed that district courts have
jurisdiction to hear APA challenges to class deviations. See Bayaud Enters. v. U.S. Dep’t
of Veteran’s Affairs, 440 F. Supp. 3d 1230, 1237 (D. Colo. 2020); Alphapointe v. Dep’t of
Veteran’s Affairs, 416 F. Supp. 3d 1, 7 (D.D.C. 2019).
To be sure, the court in Navajo Refining, in adjudicating a damages claim with
respect to specific contracts, considered the validity of several “individual deviations”
3
While the statute mentions concurrent jurisdiction in the district courts, Congress terminated that
jurisdiction in 2001 via a “sunset provision.” See Bayaud Enters. v. U.S. Dep’t of Veteran’s Affairs, 440 F.
Supp. 3d 1230, 1237 n.2 (D. Colo. 2020).
5
Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 6 of 10 PageID 461
and one “class deviation.” 58 Fed. Cl. at 203, 209. But Florida does not seek damages
with respect to specific contracts, it seeks wholesale invalidation of several agency-
wide class deviations. 4
Moreover, with respect to contracts Florida is not a party to—but which the
government asserts preempt Florida law—§ 1491(b)(1) is inapplicable for the
additional reason that Florida is not an “interested party” able to bring an action under
that statute. See AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001)
(interpreting “interested party” to include only “actual or prospective bidders or
offerors”). Florida’s exclusive remedy for its sovereign injury, therefore, is to file an
APA challenge in district court.
For these reasons, § 1491(b)(1) does not apply to Florida’s challenge to the class
deviations and this Court has jurisdiction.
III. THE DEVIATION CLAUSES VIOLATE § 1707.
If this Court finds that § 1707 applies to the deviation clauses, the government
lacks even a plausible defense that it complied with that provision. The government
has not conducted notice and comment, and it cannot invoke the exception in
§ 1707(d) without publishing a notice in the Federal Register that each class deviation
is “temporary” and providing “for a public comment period of 30 days beginning on
the date on which the notice is published.” See 41 U.S.C. § 1707(e)(1). The government
4
Florida also notes that the court in Najavo Refining never discussed whether it had jurisdiction to
consider the validity of a class deviation, presumably because the government raised no such defense.
See Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1268 (11th Cir. 2020) (“When a jurisdictional issue is
neither challenged nor discussed, [a court’s] exercise of jurisdiction carries no precedential weight.”).
6
Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 7 of 10 PageID 462
has not done so. And even if it does so now, it cannot satisfy the “urgent and
compelling circumstances” exception for the reasons Florida has already explained.
Doc. 24 at 15–16.
The government argues, however, that the new OMB rule’s invocation of
§ 1707(d) is sufficient for each class deviation to comply with § 1707. See Doc. 26 at 8.
The government is wrong for several reasons.
First, if a deviation clause is a “procurement policy, regulation, procedure, or
form” under § 1707, then it “may not take effect until 60 days after it is published for
public comment.” 41 U.S.C. § 1707(a)(1) (emphasis added); accord id. § 1707(e)(1)(A)
(requiring “a notice of the policy, regulation, procedure, or form” (emphasis added)).
Put differently, the deviation clause must itself be published for comment, not some
other document purportedly describing the policy or regulation, such as the new OMB
rule.
Second, the government’s argument is a poor fit for the facts of this case. The
class deviations were issued before the new OMB rule, which was not issued until
November 16. See Ex 1. It is thus implausible for the government to argue that the new
OMB rule’s § 1707(d) finding obviated the need for the earlier issued class deviations
to comply with § 1707.
Third, as Florida has explained, the § 1707(d) finding in the new OMB rule is
legally insufficient. Doc. 24 at 15–16. As such, even if that finding applied to the
deviation clauses, they would still be unlawful.
7
Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 8 of 10 PageID 463
IV. THE REMEDY IF THE DEVIATION CLAUSES VIOLATE § 1707.
Challenges to “the validity of a regulation governing a procurement must be
brought in federal district court under the Administrative Procedure Act.” Land Shark
Shredding, 842 F. App’x at 593 (citing Southfork Sys., 141 F.3d at 1135). Florida brings
such a challenge here.
Under the APA, “the reviewing court shall . . . hold unlawful and set aside
agency action” that is “not in accordance with law,” “in excess of statutory
jurisdiction, authority, or limitations,” or “without observance of procedure required
by law.” 5 U.S.C. § 706(2)(A), (C)–(D). A violation of § 1707 falls within each of these
categories. The ultimate remedy, therefore, is for the Court to hold unlawful and set
aside the deviation clauses. The remedy at this stage is preliminarily enjoining the
agencies from enforcing or implementing those clauses.
The Court has also asked what relief is available “against the named
defendants.” Doc. 31 at 2. Because Florida names the United States as a Defendant,
this Court may “enter[] . . . a judgment or decree . . . against the United States” itself.
5 U.S.C. § 702. All § 702 requires is that the Court “specify the Federal officer or
officers (by name or by title), and their successors in office, personally responsible for
compliance.” Id. Florida’s position is that the Court should preliminarily enjoin
enforcement or implementation of the new OMB rule. But if the Court reaches the
validity of the deviation clauses, § 702 authorizes an injunction against the head of
each agency that issued such a clause. See Ex. 1. In other words, because Florida has
8
Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 9 of 10 PageID 464
sued the United States, the Court need not limit relief to the named agencies and
officials. 5
Respectfully submitted,
Ashley Moody
ATTORNEY GENERAL
John Guard (FBN 374600)
CHIEF DEPUTY ATTORNEY GENERAL
/s/ James H. Percival
James H. Percival* (FBN 1016188)
DEPUTY ATTORNEY GENERAL OF LEGAL POLICY
*Lead Counsel
Henry C. Whitaker (FBN 1031175)
SOLICITOR GENERAL
Natalie P. Christmas (FBN 1019180)
ASSISTANT ATTORNEY GENERAL OF LEGAL POLICY
Office of the Attorney General
The Capitol, Pl-01
Tallahassee, Florida 32399-1050
(850) 414-3300
(850) 410-2672 (fax)
james.percival@myfloridalegal.com
Counsel for the State of Florida
5
At a minimum, because Florida sued officials from NASA, GSA, and DOD, those officials should
be enjoined from enforcing or implementing their agencies’ deviation clauses.
9
Case 8:21-cv-02524-SDM-TGW Document 33 Filed 12/15/21 Page 10 of 10 PageID 465
CERTIFICATE OF SERVICE
I hereby certify that on December 15, 2021, a true and correct copy of the
foregoing was filed with the Court’s CM/ECF system, which will provide service to
all parties.
/s/ James H. Percival
James H. Percival
10
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