Florida Mdfl 8 21 Cv 02524 11Th 22 10257 Doc 034 Att 0

Summary

Florida's response to the defendants' motion to stay, filed December 16, 2021 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, as Document 34. The State opposes staying its challenge to the federal contractor COVID-19 vaccination requirements while a nationwide injunction entered in Georgia v. Biden by the Southern District of Georgia is on appeal. It argues that Florida faces irreparable harm if that injunction is stayed or narrowed, citing the Texas v. Becerra proceedings, and that a stay-panel ruling would not bind this Court. It also argues a stay is not in the public interest, pointing to the government's own statements that legal questions should percolate through the courts. The six-page response is signed by counsel in the Florida Office of the Attorney General.

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Case 8:21-cv-02524-SDM-TGW Document 34 Filed 12/16/21 Page 1 of 6 PageID 579




                         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 RESPONSE TO DEFENDANTS’ MOTION TO STAY

         The government asks this Court to stay proceedings because of a nationwide

injunction entered by the Southern District of Georgia. Simultaneously, the

government plans to tell the Eleventh Circuit that nationwide relief should not have

been entered in that case and should be stayed. If that contradiction is not sufficient

reason, its request should be denied for two others. First, Florida faces immediate

irreparable harm if the nationwide injunction were stayed or narrowed. Second, as the

government has already admitted, percolation of important issues in multiple courts

should be encouraged, not shut down. 1

    I.        Florida faces irreparable harm if the proceedings are stayed.

         If the government obtains a stay pending appeal in the Georgia case—either in

full or in part through narrowing relief to the parties—Florida will immediately be


1
 One court has already rejected the government’s same request in a similar challenge. See
Doc. 121, Brnovich v. Biden, cv-21-1568 (D. Ariz. Dec. 14, 2021).
Case 8:21-cv-02524-SDM-TGW Document 34 Filed 12/16/21 Page 2 of 6 PageID 580




subject to irreparable harm. When the government conferred with Florida, it offered

no assurances to Florida about what would happen if Florida lost the protection of the

Georgia injunction and faced delay in obtaining relief. Instead, counsel quoted the

FAQs to Florida in an email:

      I’ll just note that the mandate only applies to new, covered contracts, and even
      then, the Task Force’s FAQs make clear that termination of a contract is not
      the automatic or immediate result of noncompliance with a COVID-19 safety
      clause. See Safer Federal Workforce Task Force, Federal Contractors,
      Compliance, https://www.saferfederalworkforce.gov/faq/contractors (“Com
      pliance FAQs”). Instead, “[w]here covered contractors are working in good
      faith and encounter challenges with compliance with COVID-19 safety
      protocols, the agency contracting officer should work with them to address
      these challenges.” Id.

      Putting aside the government’s previous assertion that the FAQs are not in

effect because the OMB Director has not approved them, Doc. 26 at 6, the FAQs

provide little assurance. All they say is that the government will “work with”

contractors if the contractors “work[] in good faith” to comply with the government’s

unlawful requirements. But Florida law does not allow Florida to work in good faith

to comply, and any flexibility offered to private contractors does not remedy the

irreparable sovereign injury resulting from the government’s asserted preemption of

Florida law.

      Florida’s concern is not speculative. Just yesterday, the State of Texas was left

in the lurch as a result of the government’s same tactics. After a district court in

Louisiana granted a nationwide injunction against the CMS vaccine mandate, see

Louisiana v. Becerra, 3:21-cv-3970, 2021 WL 5609846 (W.D. La. Nov. 30, 2021), the

government asked the district court to stay proceedings in Texas’s similar challenge.

                                             2
Case 8:21-cv-02524-SDM-TGW Document 34 Filed 12/16/21 Page 3 of 6 PageID 581




See Defs.’ Mot. to Stay, Doc. 35, Texas v. Becerra, No. 2:21-cv-229 (N.D. Tex. Dec. 1,

2021). The court granted that relief over Texas’s objection, Order, Doc. 43, Texas v.

Becerra, No. 2:21-cv-229 (N.D. Tex. Dec. 3, 2021), but on December 15, the Fifth

Circuit granted a stay in part, narrowing relief to the parties. See Louisiana v. Becerra,

No. 21-30734, (5th Cir. Dec. 15, 2021). Texas was immediately subject to the CMS

vaccine mandate, where the deadline to receive the first vaccine dose had already

passed. 2 Florida should not be put in the same position.

       And even if the Eleventh Circuit stays the nationwide injunction in its entirety

(rather than narrowing relief to the parties), the government is flat wrong when it says

that a ruling from the Eleventh Circuit on a stay “will bind this Court in all events.”

Doc. 32 at 4. As the parties discussed at length at the hearing, “the necessarily tentative

and preliminary nature of a stay-panel opinion precludes the opinion from having an

effect outside that case.” See Dem. Exec. Comm. of Fla. v. Nat’l Rep. Senatorial Comm.,

950 F.3d 790, 795 (11th Cir. 2020). In any event, the Georgia case addressed a small

fraction of the issues Florida has raised. See Georgia v. Biden, No. 1:21-cv-163, 2021

WL 5779939 (S.D. Ga. Dec. 7, 2021). If the Eleventh Circuit grants a stay, it will be

because the court believes the government is likely to succeed on appeal in arguing

that there is a sufficient nexus between economy and efficiency in procurement and

the vaccination requirements. Id. at *10. But such a decision would have no bearing


2
  The court has since issued an order granting Texas a preliminary injunction. See Mem. Op.
& Order, Doc. 53, Texas v. Becerra, 2:21-cv-229 (N.D. Tex. Dec. 15, 2021). But the fact that
the court had to issue a preliminary injunction ruling mere hours after the stay was lifted only
illustrates why this Court should avoid that approach.
                                               3
Case 8:21-cv-02524-SDM-TGW Document 34 Filed 12/16/21 Page 4 of 6 PageID 582




on several other arguments Florida raises, including the issues the parties are currently

addressing via supplemental briefing. See Doc. 31.

         For these reasons, and based on the irreparable harm Florida identified in its

briefing, Florida faces irreparable harm if the proceedings are stayed.

   II.      A stay is not in the public interest.

         The government not only opposes nationwide injunctions as a matter of policy,

it also believes they are outside a court’s “constitutionally prescribed role . . . to

vindicate the individual rights of the people appearing before it.” Doc. 21 at 38. It told

this Court that “[n]ationwide injunctions take a toll on the federal court system” and

“prevent[] legal questions from percolating through the federal courts.” Id.

         Now, the government insists that further percolation is unnecessary, claiming

that judicial efficiency counsels in favor of staying proceedings. Doc. 32 at 4. But

district judges are “challenged and sharpened by different rulings from other district

judges.” See Health Freedom Def. Fund, Inc. v. Biden, No. 8:21-cv-1693, 2021 WL

5416688, at *5 (M.D. Fla. Nov. 19, 2021) (Mizelle, J.). Moreover, courts routinely

enter duplicative injunctions in cases involving significant national policies. See New

York v. DHS, 408 F. Supp. 3d 334 (S.D.N.Y. 2019) (enjoining the public charge rule

nationwide); Washington v. DHS, 408 F. Supp. 3d 1191 (E.D. Wash. 2019) (same); Casa

De Maryland, Inc. v. Trump, 414 F. Supp. 3d 760 (D. Md. 2019) (same); Hawaii v.

Trump, 241 F. Supp. 3d 1119 (D. Hawaii 2017) (enjoining the travel ban nationwide);

Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017) (same).



                                             4
Case 8:21-cv-02524-SDM-TGW Document 34 Filed 12/16/21 Page 5 of 6 PageID 583




There is certainly no harm to the government from this Court doing so here, and the

government admits that Florida’s case is not moot. See Doc. 32 at 5 n.2.

      For these reasons, the public interest favors continuing proceedings.

                          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
Case 8:21-cv-02524-SDM-TGW Document 34 Filed 12/16/21 Page 6 of 6 PageID 584




                          CERTIFICATE OF SERVICE

      I certify that on December 16th, 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
                                             Deputy Attorney General




                                         6


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