Court filing
Georgia Sdga 1 21 Cv 00163 11Th 21 14269 Doc 109 Att 0
Summary
Plaintiff-Intervenor Associated Builders and Contractors, Inc.'s response to the defendants' emergency motion for stay pending appeal and for immediate administrative stay, in The State of Georgia v. Biden, Case 1:21-cv-00163-RSB-BKE, U.S. District Court for the Southern District of Georgia, filed January 7, 2022 as Doc. 109. The response addresses two points of clarification the defendants seek on the preliminary injunction (Doc. 94): whether contractors may mutually agree to COVID-19 safety clauses, and whether the injunction reaches masking, physical distancing and workplace coordinator requirements. It argues the notice of appeal (Doc. 96) limits the court's power to clarify, that such agreements would not be mutual, and that the injunction covers the entire COVID-19 safety clause under Executive Order 14042. The seven-page filing is signed by counsel for the plaintiff-intervenor.
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No. 1:21-cv-00163-RSB-BKE · Doc. 109 · Docket on CourtListener
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Case 1:21-cv-00163-RSB-BKE Document 109 Filed 01/07/22 Page 1 of 7
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
THE STATE OF GEORGIA, et al., )
)
Plaintiffs, )
)
ASSOCIATED BUILDERS AND )
CONTRACTORS, INC., )
) Case 1:21-cv-00163-RSB-BKE
Plaintiff-Intervenor, )
)
v. )
)
JOSEPH R. BIDEN in his official )
capacity as President of the United; )
States, et al., )
)
Defendants. )
)
PLAINTIFF-INTERVENOR’S RESPONSE TO DEFENDANTS’
EMERGENCY MOTION FOR STAY PENDING APPEAL
AND FOR IMMEDIATE ADMINISTRATIVE STAY
Plaintiff-Intervenor, Associated Builders and Contractors, Inc., (ABC), by and
through undersigned counsel, submits this Response to Defendants’ Motion for Stay
Pending Appeal and for Immediate Administrative Stay.
Defendants seek “clarification” on two aspects of the preliminary injunction
issued by this Court (Doc. 94): (1) whether the preliminary injunction prohibits
private federal contractors from “mutually agreeing” with Defendants to include
COVID-19 safety clauses in their federal contracts, and (2) whether the preliminary
injunction is limited to the enforcement of the Safer Federal Workforce Task Force’s
vaccination requirements so that federal agencies can nevertheless enforce
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Case 1:21-cv-00163-RSB-BKE Document 109 Filed 01/07/22 Page 2 of 7
requirements regarding masking, physical distancing, and the identification of a
person to coordinate COVID-19 safety requirements at the workplace. As discussed
below, ABC takes the position that such “clarification” is not within this Court’s
power, nor is it necessary.
1. District Courts Have Limited Powers on Matters on Appeal.
As a general matter, the filing of a notice of appeal deprives the district court
of jurisdiction over all issues involved in the appeal. See Griggs v. Provident
Consumer Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402, 74 L. Ed. 2d 225 (1982); Doe
v. Bush, 261 F.3d 1037, 1064 (11th Cir. 2001) (“As a general rule, the filing of a notice
of appeal divests the district court of jurisdiction over those aspects of the case that
are the subject of the appeal.”), cert. denied Kearney v. Does, 534 U.S. 1104, 122 S. Ct.
903, 151 L. Ed. 2d 872 (2002); Taylor v. Sterrett, 640 F.2d 663, 667-68 (5th Cir. 1981);
Rauback v. City of Savannah, 2021 U.S. Dist. LEXIS 156115, 2021 WL 3674076 (S.D.
Ga. 2021). However, it does not prevent the district court from taking action “in
furtherance of the appeal.” Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930 (5th
Cir. 1976) (citations omitted). Nor does it prevent the court from entertaining motions
on matters collateral to those at issue on appeal. Doe, 261 F.3d at 1064 (citing Weaver
v. Fla. Power & Light Co., 172 F.3d 771, 773 (11th Cir.1999)); Mahone v. Ray, 326
F.3d 1176 (11th Cir. 2003)1.
1
For example, the district court retains jurisdiction after the filing of a notice of
appeal to entertain and deny a Rule 60(b) motion. Griffin v. Swim-Tech Corp., 722
F.2d 677, 680 (11th Cir. 1984). The court does not, however, retain jurisdiction to
grant a Rule 60(b) motion following the filing of a notice of appeal. Nevertheless, in
this case, Defendants have not filed a Rule 60(b) motion.
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Case 1:21-cv-00163-RSB-BKE Document 109 Filed 01/07/22 Page 3 of 7
In this case, what the Defendants are seeking goes well beyond matters
collateral to the those at issue on appeal. Rather, the “clarification” sought by
Defendants goes to the heart of the preliminary injunction that they have appealed
to the Eleventh Circuit Court of Appeals. Defendants’ Notice of Appeal reads as
follows:
PLEASE TAKE NOTICE that all Defendants hereby appeal to the
United States Court of Appeals for the Eleventh Circuit from this
Court’s Opinion & Order dated December 7, 2021, ECF No. 94, which
(1) granted the amended motion for a preliminary injunction filed by
Plaintiffs, ECF No. 55; (2) granted in part and denied in part the motion
to intervene filed by Associated Builders and Contractors of Georgia and
Associated Builders and Contractors, Inc. (ABC), ECF No. 48; and (3)
granted ABC’s motion for a preliminary injunction, ECF No. 50.
(Doc. 96). Defendants are appealing the Court’s entire Order (Doc. 94) without
reservation. Thus, any aspect of the preliminary injunction, which was a significant
part of the Court’s Order, is a matter for consideration by the Eleventh Circuit.
2. There is no need for “clarification” of the Court’s Order.
a. Mutual agreements to include COVD-19 safety clauses in
federal contracts do not really exist.
Even if the Court had the power to make the “clarification” that the Defendants
are seeking, there is no need for such “clarification” because the reality is there is no
such thing as “mutual agreements” between the federal government and its
contractors because the imbalance of power between the federal government and its
contractors means it is difficult to characterize any agreement to contractual
provision requested by the federal government as “mutual.” Federal government
contract solicitations are published on the official government website,
www.beta.Sam.gov. It is the federal government that sets the terms of the contracts
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Case 1:21-cv-00163-RSB-BKE Document 109 Filed 01/07/22 Page 4 of 7
awarded pursuant to this process. As the witnesses at the hearing before this Court
explained, when the federal government tells a contractor to include a specific clause
in a contract, whether it is the initial contract, an amendment, or a renewal, the
contractor has little or no opportunity to reject the inclusion of that language. Simply
put, if a contractor does not agree to the federal government’s terms, then the federal
government will find another contractor that will. See, e.g. Supplemental Declaration
of Michael P. Shannon (Doc. 76-1, par. 6): “Georgia Tech was required to agree to FAR
clause 52.223-99 to maintain its eligibility for the contract award pursuant to the
NASA solicitation.” Therefore, if the federal government were to now present the FAR
clause to contractors and ask them to agree to the inclusion of that language in their
contract, it is highly unlikely that the contractor would see that it has any choice in
the matter.
Essentially, the federal government is seeking to do indirectly what the Court
has stopped it from doing directly: requiring its contractors to adhere to the FAR
Deviation contract clause. Indeed, the FAR Memo made it clear that the FAR
Deviation contract language was required to be included in all federal government
contracts:
[A]gencies are required to include an implementing clause in
solicitations and contracts for services, including construction, in
accordance with the following dates specified in section 6 of the order:
• new contracts awarded on or after November 14 from solicitations
issued before October 15 (this includes new orders awarded on or after
November 14 from solicitations issued before October 15 under existing
indefinite-delivery contracts);
• new solicitations issued on or after October 15 and contracts awarded
pursuant to those solicitations (this includes new solicitations issued on
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Case 1:21-cv-00163-RSB-BKE Document 109 Filed 01/07/22 Page 5 of 7
or after October 15 for orders awarded pursuant to those solicitations
under existing indefinite-delivery contracts);
• extensions or renewals of existing contracts and orders awarded on or
after October 15, 2021; and • options on existing contracts and orders
exercised on or after October 15, 2021.
FAR Council Guidance,
https://www.whitehouse.gov/wpcontent/uploads/2021/09/FAR-Council- Guidance-on-
Agency-Issuance-of-Deviations-to-Implement-EO-14042.pdf, p.2 (emphasis added).
There was nothing negotiable about the inclusion of the FAR deviation then, and
there would be nothing negotiable about it now.
In the meantime, contractors are free to implement whatever safety measures
they wish in order to protect their workforces and customers. Indeed, the evidence
submitted by ABC showed that ABC’s members are making efforts to vaccinate their
workforces and keep them safe.
b. The Preliminary Injunction is not limited to the enforcement of
only the vaccine requirement.
In view of the Court’s careful consideration of EO 14042 and the FAR Memo,
as well as the SAFER Guidance, the Court’s Preliminary Injunction clearly
encompasses the requirements in the FAR Memo and SAFER Guidance regarding
not only vaccination but also masking, physical distancing, and the identification of
a person to coordinate COVID-19 safety requirements at the workplace. Indeed, the
Defendants acknowledge this fact themselves; in their Motion to Stay they state on
the very first page: “Defendants understand this Court’s order to prevent federal
agencies from enforcing COVID-19 safety clauses included in certain categories of
federal government contracts pursuant to Executive Order 14,042, so long as the
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Case 1:21-cv-00163-RSB-BKE Document 109 Filed 01/07/22 Page 6 of 7
preliminary injunction remains in place.” (emphasis added) (Doc. 97, p. 1). Therefore,
it is unclear as to why they are now seeking “clarification” of the scope of the Court’s
preliminary injunction when they understand that it encompasses the entire COVID-
19 safety clause.
Furthermore, it is not necessary to include the SAFER Guidance regarding
masking, physical distancing, and coordination of COVID-19 safety requirements at
the workplace in government contracts because employers already must comply with
OSHA guidance on these issues. OSHA has adopted COVID-19 guidelines
analogous to those issued by the CDC. See Protecting Workers: Guidance
on Mitigating and Preventing the Spread of COVID-19 in the
Workplace, https://www.osha.gov/coronavirus/safework. This guidance contains
recommendations as well as descriptions of OSHA’s safety and health standards that
OSHA enforces related to COVID safety issues. And unlike the SAFER Guidance,
OSHA has tailored its guidance to distinct types of workplaces. See, e.g., Appendix:
Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status
Workers, https://www.osha.gov/coronavirus/safework#appendix. And OSHA has used
its general duty clause (Section 5(a)(1) of the OSH Act) to enforce its COVID-19
guidance. Thus, it is not necessary for the federal government to introduce contract
provisions that require measures that are already enforced by OSHA.
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Case 1:21-cv-00163-RSB-BKE Document 109 Filed 01/07/22 Page 7 of 7
Respectfully Submitted this 7th day January 2022.
/s/ J. Larry Stine
J. Larry Stine (Ga. Bar No. 682555)
jls@wimlaw.com
Kathleen J. Jennings (Ga. Bar No. 394862)
kjj@wimlaw.com
WIMBERLY LAWSON STECKEL SCHNEIDER
& STINE, PC
3400 Peachtree Road, N.E.
Suite 400 – Lenox Road
Atlanta, GA 30326-1107
404-365-0900 – Phone
404-261-3707 – Fax
Attorneys for Plaintiff-Intervenor
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