Court filing
Georgia Sdga 1 21 Cv 00163 11Th 21 14269 Doc 110 Att 0
Summary
Plaintiffs' response to the defendants' request for clarification of the December 7, 2021 order, filed January 7, 2022 as Document 110 in The State of Georgia, et al. v. Joseph R. Biden, Civil Action No. 1:21-cv-163-RSB-BKE, in the U.S. District Court for the Southern District of Georgia. It argues the court lacks jurisdiction to clarify the preliminary injunction because the defendants filed a notice of appeal first, and that if it has jurisdiction it should state the injunction needs no clarification. The response contends the injunction bars enforcement of Executive Order 14042, 86 Fed. Reg. 50,985, in any respect, including the COVID-19 Task Force Guidance Clause inserted into federal contracts, while leaving contractors free to adopt their own measures. The 22-page filing recounts the injunction proceedings and is signed by counsel for several states.
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No. 1:21-cv-00163-RSB-BKE · Doc. 110 · Docket on CourtListener
Full text
Case 1:21-cv-00163-RSB-BKE Document 110 Filed 01/07/22 Page 1 of 22
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
President of the United States, et al.,
Defendants.
Civil Action No. 1:21-cv-163-RSB-BKE
PLAINTIFFS’ RESPONSE TO
DEFENDANTS’ REQUEST FOR
CLARIFICATION OF THE DECEMBER 7, 2021 ORDER
1
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TABLE OF CONTENTS
INTRODUCTION ........................................................................................................ 3
BACKGROUND ........................................................................................................... 6
I. Executive Order 14042 .............................................................................. 6
II. Preliminary Injunction Proceedings ..................................................... 7
III. The Injunction ............................................................................................ 9
IV. Subsequent Developments ..................................................................... 10
ARGUMENT ............................................................................................................... 12
I. The Court Lacks Jurisdiction To “Clarify” The Injunction Pending
Appeal ......................................................................................................... 12
II. If This Court Concludes It Has Jurisdiction To Decide Defendants’
Clarification Request, It Should Say The Injunction Means What It
Says ............................................................................................................. 14
A. This Court’s Preliminary Injunction Clearly Prohibits
Defendants From Enforcing Any COVID-19 Task Force
Guidance Clause ................................................................................. 15
B. Nothing In The Preliminary Injunction Prohibits Employers
From Adopting COVID-19 Protection Measures As A Matter Of
Their Own Policies, Without Any Enforcement By Defendants
17
CONCLUSION ........................................................................................................... 18
2
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INTRODUCTION
In its December 7 Order enjoining Executive Order 14042, this Court could not
have been clearer: “Plaintiffs will likely succeed in their claim that the President
exceeded the authorization given to him by Congress through the Federal Property
and Administrative Services Act when issuing Executive Order 14042.” Doc.94 at 2.
Accordingly, this Court enjoined Defendants from enforcing EO 14042 in any respect,
including enforcing what Defendants now call the “COVID-19 safety clauses” that
Defendants developed and inserted into various contracts pursuant to the unlawful
EO (hereinafter “COVID-19 Task Force Guidance Clause”). Doc.94 at 1–2, 26–27.
Defendants immediately understood that the scope of this Court’s injunction applied
to the whole of EO 14042, including every COVID-19 Task Force Guidance Clause
that they inserted into any contract, as reflected by Defendants’ prompt
announcement: “For existing contracts or contract-like instrument . . . that
contain a clause implementing requirements of Executive Order 14042: The
Government will take no action to enforce the clause implementing requirements of
Executive Order 14042.” For Federal Contractors, Safer Federal Workforce Task
Force.1
Now, in a single, conclusory paragraph at the end of their since-withdrawn
motion for a stay pending appeal, Defendants purport to ask for two clarifications of
this Court’s injunction. First, they ask for clarification that the preliminary
injunction “does not prohibit private federal contractors from mutually agreeing with
1 Available at https://www.saferfederalworkforce.gov/contractors/ (all websites last visited Jan.
7, 2022).
3
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Defendants to include COVID-19 safety clauses in their federal contracts, thus
allowing those federal contractors to voluntarily comply with the Task Force
guidelines, including requiring their employees to be vaccinated.” Doc.97 at 11–12.
Second, they ask this Court to permit “federal agencies [to] enforc[e] requirements
related to masking and physical distancing and the identification of a person or
persons to coordinate COVID-19 workplace safety efforts at covered contractor
workplaces.” Doc.97 at 12 (emphasis added).
This Court should deny Defendants’ request for “clarification,” which is really
a request for modification. As a threshold matter, this Court lacks jurisdiction to
issue the clarification that Defendants seek because Defendants made the entirely
voluntary decision to file their notice of appeal before requesting or receiving
“clarification” from this Court. If, however, this Court concludes that it has
jurisdiction to entertain Defendants’ one-paragraph request, it should simply state
that the injunction needs no clarification because it says what it means and means
what it says: Plaintiffs are likely to succeed in their claim that EO 14042 is unlawful
and, accordingly, Defendants can take no action during the pendency of this
litigation to enforce any aspect of EO 14042, including enforcing any COVID-
19 Task Force Guidance Clause in any federal contract.
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If federal contractors want to voluntarily impose COVID-19-related rules on
their employees—including rules modeled on the COVID-19 Task Force Guidance
Clause—they do not need a COVID-19 Task Force Guidance Clause in a federal
contact to do so. What Defendants characterize as “voluntary” in their request for
clarification is anything but voluntary. Prior to issuance of the injunction,
Defendants relied on the “strongly encouraged” language in EO 14042 to require
federal contractors to accept through bilateral modification COVID-19 Task Force
Guidance clauses in existing contracts. See, e.g., Doc.76-3 at ¶¶5-13. And because
federal contracts include clauses that allow the government to terminate the contract
if a contractor does not accept a bilateral modification (Doc.76-3 at ¶14), federal
contractors had no choice but to accept these clauses. As new and renewal contracts
issued, Defendants used EO 14042 to insert COVID-19 Task Force Guidance Clauses
into those contracts. The preliminary injunction properly prohibits Defendants from
enforcing EO 14042 in its entirety in existing, new and renewal contracts. That is
the status quo, and the Eleventh Circuit has held that this status quo would not cause
irreparable injury to Defendants. Order at 2, Georgia v. Biden, 11th Cir. No. 21-
14269-F (Dec. 17, 2021).2 Defendants’ request for clarification is clearly an improper
attempt to narrow the preliminary injunction which this Court should not allow.
2 Defendants Motion for Stay of the District Court’s December 7, 2021 Order Pending Appeal
filed in the Eleventh Circuit includes the same declarations of Jason Miller and Jeffrey Koses that
Defendants include in their clarification request.
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BACKGROUND
I. Executive Order 14042
EO 14042 requires federal agencies to force federal contractors to “provide
adequate COVID-19 safeguards to their workers performing on or in connection with
a Federal Government contract or contract-like instrument,” based solely on the
President’s purported authority under the Procurement Act to promote “economy and
efficiency in Federal procurement.” 86 Fed. Reg. 50,985, 50,985 (Sept. 9, 2021); see
also Doc.94 at 3. As relevant here, the implementing guidance—developed by the
Task Force and approved by the OMB Director as directed by EO 14042 — “requires
all ‘covered contractors’ to be fully vaccinated by January 18, 2022, unless they are
‘legally entitled to an accommodation,’” and to comply with “masking and physical
distancing” protocols. Doc.94 at 4; COVID-19 Workplace Safety: Guidance for Federal
Contractors and Subcontractors at 5–7 (updated Nov. 10, 2021).3 The Federal
Acquisition Regulatory Council thereafter developed the COVID-19 Task Force
Guidance Clause (i.e., FAR Deviation Clause 52.223-99) as required by EO 14042.
That clause simply incorporates the Task Force’s guidance by reference.
EO 14042 provides two mechanisms for inserting COVID-19 Task Force
Guidance Clauses into federal contracts. First, such Clauses are automatically
inserted into “any new contract; new contract-like instrument; new solicitation for a
contract or contract-like instrument; extension or renewal of an existing contract or
contract-like instrument; and exercise of an option on an existing contract or contract-
3 Available at https://www.saferfederalworkforce.gov/downloads/Guidance%20for%20Federal
%20Contractors_Safer%20Federal%20Workforce%20Task%20Force_20211110.pdf.
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like instrument.” 86 Fed. Reg. at 50,986 (§ 5(a)); see also Doc.94 at 3–4. Second, “[f]or
all existing contracts and contract-like instruments,” agencies are “strongly
encouraged” to insert COVID-19 Task Force Guidance Clauses into such existing
federal contracts. 86 Fed. Reg. at 50,987 (§ 6(c)) (emphasis added).
As required by EO 14042, the Safer Federal Workforce Task Force and Federal
Acquisition Regulatory (“FAR”) Council developed implementing guidance and
regulations for the foregoing requirements, with the latter listing the types of
solicitations and contracts in which agencies “are required to include” the COVID-19
Task Force Guidance Clause under the EO. 86 Fed. Reg. at 50,985–86 (§§ 2, 3); FAR
Council Guidance at 2 (Sept. 30, 2021) (emphasis added);4 see also Doc.94 at 6. But,
consistent with EO 14042’s requirement and as contemplated by the Task Force
Guidance itself, the FAR Council Guidance reiterates that, “[t]o maximize the goal of
getting more people vaccinated and decrease the spread of COVID-19, the Task Force
strongly encourages agencies to apply the guidance requirements of its guidance
broadly, . . . by including the clause in” other types of contracts that are not otherwise
covered by EO 14042. FAR Council Guidance at 3; see also Doc.94 at 6–7.
II. Preliminary Injunction Proceedings
At the preliminary injunction stage, Plaintiffs presented the Court extensive,
unrebutted evidence concerning the Defendants’ efforts to use EO 14042 to force
Plaintiffs to include COVID-19 Task Force Guidance Clauses in their new and
existing contracts. With respect to new contracts, Georgia Tech identified a recent
4 Available at https://www.whitehouse.gov/wp-content/uploads/2021/09/FAR-Council-
Guidance-on-Agency-Issuance-of-Deviations-to-Implement-EO-14042.pdf.
7
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bid solicitation from NASA. Doc.94 at 13 (citing Doc. 76-1; Tr. at 23:15–24:13). With
respect to existing contacts, Plaintiffs provided unsolicited emails from Defendants’
employees forcing Plaintiffs to incorporate COVID-19 safety clauses into their
existing contracts, which Plaintiffs were told they “will sign and return the
modification via email to the Contracting Officer of record by November 9,
2021,” Doc.76-3, Ex. B at 5, or “Effective immediately, and no later than
October 15, 2021,” because the agencies were “required to modify these existing
contracts” under EO 14042 and its implementing regulations and guidance, Doc.76-
3, Ex. C at 3–4. Where Plaintiffs acted as Federal subcontractors, they received email
instructions to “flow down the clause as required” under EO 14042, demanding it be
incorporated into subcontracts “as soon as possible.” Doc.76-3, Ex. F at 2. Left with
no choice, Plaintiffs acquiesced to the coercive demands to incorporate the COVID-19
Task Force Guidance Clause in new and existing contracts alike. See, e.g., Doc.55-1
¶¶ 4, 6; Doc.55-2 ¶¶ 7, 8; Doc. 55-3 ¶¶ 3–4, 7, 8; Doc.76-3 ¶¶6-14; Tr. at 65:8–21.
All told, Plaintiffs have thousands of federal contracts and subcontracts,
making compliance with COVID-19 Task Force Guidance Clauses nearly impossible.
See Docs. 55-12 ¶ 18,19; 55-1 ¶ 8; 55-2 ¶ 7; 55-3 ¶ 6 (the Board of Regents for the
University System of Georgia have over 2,000 federal contracts, worth over
$736,000,000 in FY 2021 alone); Docs. 55-1–55-10, 55-12–55-14, 76-4. As set forth at
the preliminary injunction hearing, Plaintiffs incurred great costs and expended
significant human resources attempting to comply with EO 14042. For example, the
Board of Regents universities began: (1) tracking employee vaccination statuses; (2)
creating a process to review accommodation requests; (3) identifying impacted
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employees and locations; (4) spending money to ensure compliance; and (5) tracking
the above data from their subcontractors to ensure that they also comply with EO
14042. Doc. 55-1 ¶ 13; 55-2 ¶ 11; 55-13 ¶ 5. And even perfect compliance means lost
personnel, institutional employee knowledge, and specialized workers; damage to
reputation and goodwill; and mission failure. Doc. 55-1 ¶ 18; 55-2 ¶ 15; 55-3 ¶ 10;
55-4 ¶ 10; 55-13 ¶ 10; Doc. 94 at 24–25; Tr. at 32:12–35:10, 71:21–73:07, 94:14–96:15.
III. The Injunction
On December 3, 2021, this Court held a hearing on the Plaintiffs’ preliminary
injunction motions “against enforcement of Executive Order 14042.” Doc.91; Doc.94
at 1. It subsequently enjoined the enforcement of EO 14024. Doc.94. at 26
(“Accordingly, the Court finds that the balancing of the harms weighs heavily in favor
of enjoining the enforcement of EO 14042; id. at 27 (“enjoin the enforcement of the
mandate”; “Defendants are ENJOINED, during the pendency of this action or until
further order of this Court, from enforcing the vaccine mandate”).
The Court based its injunction, as relevant, on its conclusion that Plaintiffs
would likely succeed on the merits because EO 14024 exceeds the President’s
Procurement Act authority. Id. at 21–23. It explained that “EO 14042 goes far
beyond addressing administrative and management issues in order to promote
efficiency and economy in procurement and contracting, and instead, in application,
works as a regulation of public health, which is not clearly authorized under the
Procurement Act.” Id. at 20. It also held “that the directives contained within EO
14042 were not authorized by the Procurement Act.” Id. at 21 (emphasis added). The
Court specifically rejected the Defendants’ argument that “the safeguards in the Task
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Force Guidance” (which contains the masking and physical distancing protocols that
make up the COVID-19 Task Force Guidance Clause) create “a sufficiently close
nexus” with “the purpose of the Procurement Act.” Id. at 21–22 (cleaned up). “Simply
put, EO 14042’s directives and resulting impact radiate too far beyond the purposes
of the Procurement Act and the authority it grants to the President.” Id. at 23
(emphasis added). Finally, in an effort to ensure that its injunction reached “all
covered contracts” in the United States, the court explained that the preliminary
injunction must be nationwide. Id. at 26–27. “[L]imiting the relief to only those
before the Court would prove unwieldy and would only cause more confusion.” Id. at
27.
IV. Subsequent Developments
In response to this preliminary injunction, Defendants, plainly understanding
the scope of it, issued updated guidance stating “[t]he Government will take no action
to enforce the clause implementing requirements of Executive Order 14042” in
existing federal contracts. For Federal Contractors, Safer Federal Workforce Task
Force (emphasis added);5 see also Doc.97-1 ¶ 14 (OMB Deputy Director plainly
acknowledging that “the scope of the injunction . . . prohibits agencies from enforcing
similar clauses requiring compliance with the relevant COVID-19 safety protocols
added to contracts through bilateral contract negotiation”) (emphasis added). At no
point did Defendants attempt to separate the masking and physical distancing
5 Available at https://www.saferfederalworkforce.gov/contractors/.
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requirements from the vaccine requirements in COVID-19 Task Force Guidance
Clauses.
Following entry of the preliminary injunction, Plaintiffs suspended efforts to
comply with EO 14042, including any COVID-19 Task Force Guidance Clause that
had, or would have, been inserted into their federal contracts. Plaintiffs-Appellees’
Motion in Opposition to a Stay, Ex. 1 ¶ 6; Ex. 2 ¶ 4; Ex. 3 ¶ 5, Georgia v. Biden, 11th
Cir. No. 21-14269-F (Dec. 15, 2021).
On December 9, 2021, Defendants filed a notice of appeal of the Court’s
preliminary injunction order and opinion to the U.S. Court of Appeals for the
Eleventh Circuit. Doc.96; see 28 U.S.C. § 1292(a)(1).
Shortly after, Defendants moved for an “emergency stay pending appeal” and
an “immediate administrative stay” of the injunction in this Court, arguing, among
other things, that they are likely to prevail on their appeal. Doc.97. In a single
paragraph at the very end of their stay motion, Defendants also purported to ask for
two “clarifications” of this Court’s injunction. First, they asked for clarification that
contractors can “mutually agree” with Defendants to “voluntarily” insert so-called
“COVID-19 safety clauses in their federal contracts,” and thereafter “voluntarily”
comply with the Task Force Guidance, including vaccine requirements. Doc.97 at 11-
12. Second, they asked this Court to permit “federal agencies [to] enforc[e]
requirements related to masking and physical distancing and the identification of a
person or persons to coordinate COVID-19 workplace safety efforts at covered
contractor workplaces.” Doc.97 at 12 (emphasis added).
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The next day, Defendants moved to stay the District Court’s December 7, 2021
Order pending appeal in the Eleventh Circuit. Georgia v. Biden, 11th Cir. No. 21-
14269-F (Dec. 10, 2021). The Eleventh Circuit denied the requested stay because
Defendants had failed to show that they “will be irreparably injured absent a stay” of
this Court’s injunction. Order at 2, Georgia v. Biden, 11th Cir. No. 21-14269-F (Dec.
17, 2021). The Eleventh Circuit expedited briefing on the merits of Defendants’
appeal, with opening and response briefs due on January 18, 2022 and February 8,
2022, respectively. Order at 1, Georgia v. Biden, 11th Cir. No. 21-14269-F (Dec. 21,
2021). Oral argument is scheduled for the week of April 4, 2022. Notice at 1, Georgia
v. Biden, 11th Cir. No. 21-14269-F (Dec. 21, 2021).
In this Court, Defendants withdrew their stay motion following the Eleventh
Circuit’s denial of their similar motion. However, they continued to press their two
requests for “clarification” of the injunction at issue here. Doc.105 at 2–3 (quoting
Doc.97 at 2).
ARGUMENT
I. The Court Lacks Jurisdiction To “Clarify” The Injunction Pending
Appeal
A. “The filing of a notice of appeal is an event of jurisdictional significance—it
confers jurisdiction on the court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982) (per curiam). “[A] district court generally is
without jurisdiction to rule in a case that is on appeal.” Zaklama v. Mt. Sinai Medical
Center, 906 F.2d 645, 649 (11th Cir. 1990); United States v. Hitchmon, 602 F.2d 689,
12
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692 (5th Cir. 1979) (en banc), superseded by statute on other grounds (“The district
court is divested of jurisdiction to take any action with regard to the matter except in
aid of the appeal.”).6 The District Court retains authority over only those “collateral
matters not affecting the questions presented on appeal.” Weaver v. Fla. Power &
Light Co., 172 F.3d 771, 773 (11th Cir. 1999).
Accordingly, multiple courts of appeals “have held, or at least strongly implied,
that the district court may not alter the injunction once an appeal has been filed
except to maintain the status quo of the parties pending the appeal.” Coastal Corp. v.
Texas E. Corp., 869 F.2d 817, 819 (5th Cir. 1989) (noting consistency of such a rule
with Griggs); see MillerCoors LLC v. Anheuser-Busch Companies, LLC, 940 F.3d 922,
923 (7th Cir. 2019) (when an injunction is on appeal, district courts may “make
changes linked to bonds or otherwise secure the enjoined party’s rights,” which
“differs from a blanket grant of permission to impose new obligations, and
substantially alter the issues, while appeals are pending”).7 Any other rule would be
nonsensical; changing the scope of an injunction that is currently being reviewed on
appeal is the core example of an “aspect[]” of the “case” that is “involved in the appeal.”
Griggs, 459 U.S. at 58. Indeed, the injunction is not just an aspect of this appeal, it is
the appeal. As one district court has put it, the “determination of the proper scope of
the preliminary injunction . . . is, in fact, a subject of the pending appeal” and revising
6 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
7 See also Flynt Distributing Co., Inc. v. Harvey, 734 F.2d 1389, 1392 n. 1 (9th Cir. 1984); Lewis
v. Tobacco Workers’ Int’l Union, 577 F.2d 1135 (4th Cir. 1978); Ideal Toy Corp. v. Sayco Doll Corp., 302
F.2d 623 (2d Cir. 1962).
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the injunction pending appeal would “impermissibly ‘move the target’ for the court of
appeals.” Int’l Refugee Assistance Project v. Trump, 2017 WL 1315538, at *2 (D.Md.
Apr. 10, 2017) (citation omitted).
B. The Court thus lacks jurisdiction to provide Defendants’ requested
“clarification.” The Court stated that the entirety of “EO 14042’s directives and
resulting impact radiate too far beyond the purposes of the Procurement Act and the
authority it grants to the President.” Doc.94 at 23. By filing a notice of appeal before
even asking this Court to “clarify” (i.e., modify) the plain language of its injunction,
the Defendants have placed the question of whether any of EO 14042’s directives and
impacts are likely permissible under the Procurement Act before the appellate court
to decide. Any clarification would qualify as an “alter[ation]” of the injunction, and
is thus beyond this Court’s jurisdiction given Defendants’ decision to file their notice
of appeal. Coastal Corp., 869 F.2d at 819; see Griggs, 459 U.S. at 58.
II. If This Court Concludes It Has Jurisdiction To Decide Defendants’
Clarification Request, It Should Say The Injunction Means What It Says
If the Court finds that it has jurisdiction to “clarify” its injunction pending
appeal, it should conclude that the injunction requires no clarification: Defendants
can take no action to enforce any aspect of the regime under EO 14042, including
enforcing any COVID-19 Task Force Guidance Clause in any new or existing federal
contract, including as to vaccination, masking, physical distancing, or testing. The
injunction does nothing to prohibit any contractor from imposing workplace rules on
their own employees, including if those workplace rules happened to be modeled on
the COVID-19 Task Force Guidance Clause. But Defendants cannot attempt to make
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such requirements part of their contracts while this preliminary injunction is
pending.
A. This Court’s Preliminary Injunction Clearly Prohibits Defendants
From Enforcing Any COVID-19 Task Force Guidance Clause
This Court’s preliminary injunction could not have been clearer: Defendants
cannot enforce any aspect of EO 14042, which includes all COVID-19 Task Force
Guidance Clauses that Defendants inserted into federal contracts. The Court held
that Plaintiffs would likely succeed on the merits because EO 14024 exceeds the
President’s Procurement Act authority. Doc.94 at 21–23. It explained that “EO
14042 goes far beyond addressing administrative and management issues in order to
promote efficiency and economy in procurement and contracting, and instead, in
application, works as a regulation of public health, which is not clearly authorized
under the Procurement Act.” Id. at 20 (emphasis added). It also held “that the
directives contained within EO 14042 were not authorized by the Procurement Act.”
Id. at 21 (emphasis added). Defendants themselves understood what this means,
explaining that “[t]he Government will take no action to enforce the clause
implementing requirements of Executive Order 14042” in existing contracts. That is
what Plaintiffs moved for, and the Court granted Plaintiffs’ motion—it was not
granted in part and denied in part. Doc.55 at 29 (“Plaintiffs respectfully ask this
Court to preliminarily enjoin Defendants from implementing and enforcing the
Contractor Mandate.”).
This covers any COVID-19 Task Force Guidance Clause that Defendants
previously inserted into federal contracts, regardless of whether those Clauses were
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automatically inserted into new contracts pursuant to § 5(a) of EO 14042 or agencies
inserted those clauses into existing contracts pursuant to § 6(c) of EO 14042. 86 Fed.
Reg. at 50,986–87; see supra, at 4–5. Soon after EO 14042 was issued, federal prime
and subcontractors, like Plaintiffs, began receiving demands from Defendants or
prime contractors to either include COVID-19 Task Force Guidance Clauses in new
contracts or their existing contracts as required by EO 14042. See Doc.94 at 13
(discussing Georgia Tech’s experience with a NASA bid solicitation) (citing Doc. 76-1
at 4–9; Tr. at 23:15–24:13); Doc.76-3, Ex. B at 5 (requiring Plaintiffs “sign and
return the modification via email to the Contracting Officer of record by
November 9, 2021”); Doc.76-3, Ex. C at 3–4 (the same, “Effective immediately,
and no later than October 15, 2021”); Doc.76-3, Ex. F at 2 (the same, from a prime
contractor “flow[ing] down the clause as required” under EO 14042). Defendants
have never tried to suggest there is any basis for inclusion of those clauses into
Plaintiffs’ contracts other than the unlawful EO 14042.
It would be extremely disruptive to permit enforcement of COVID-19 Task
Force Guidance Clauses in federal contracts while this matter is on appeal. As the
Defendants themselves have conceded, one federal agency alone has over 25,000
existing contracts containing the forcibly inserted clauses. Doc.97 at 5; Doc.97-2 ¶ 13
(discussing Government Services Administration contracts). Reversing course from
what the Defendants themselves have announced and permitting Defendants to
begin enforcing the masking and physical distancing provisions within COVID-19
Task Force Guidance Clauses in every contract with every federal agency would
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significantly and irreparably harm Plaintiffs and alter the status quo. See Doc.94 at
24–26; Doc.55-1 ¶ 13; Doc.55-2 ¶ 11; Doc.55-13 ¶ 5.
These concerns are significant for any enforcement of the COVID-19 Task
Force Guidance Clause’s masking, testing, and physical distancing requirements,
which appears to be the only aspect of the existing Clauses that Defendants ask this
Court to permit them to enforce. As set forth in testimony at the preliminary
injunction hearing, these non-vaccine requirements would “change the delivery of our
mission” and “institutionally change how we deliver on our academic mission and our
research mission, which are intimately coupled.” Tr. at 40:11-41:12 (testifying as to
the effect physical distancing requirements would have on the ability to deliver in-
person instruction at Georgia Tech). The masking and social distancing requirements
would impair core aspects of Plaintiffs’ operations. Id.8
B. Nothing In The Preliminary Injunction Prohibits Employers From
Adopting COVID-19 Protection Measures As A Matter Of Their
Own Policies, Without Any Enforcement By Defendants
Defendants also “request [a] clarification that the preliminary injunction does
not prohibit private federal contractors from mutually agreeing with Defendants to
8 Defendants improperly attempt to assert in a brief footnote that they can create and enforce
contractual provisions even when not relying on the Procurement Act. See Doc.97 at 12 n.4. In so
arguing, Defendants ignore that “[a]n agency literally has no power to act . . . unless and until Congress
confers power upon it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). Regardless,
Defendants cannot plausibly argue that any federal agency would be seeking these modifications but
for EO 14042, which cites the Procurement Act as its source of substantive authority. If another source
of authority existed, surely Defendants would have relied on it from the beginning, rather than
mention it in a conclusory footnote in a last-ditch motion for clarification. And Defendants overread
their cases anyway. The two they cite—a plurality opinion in United States v. Winstar Corp., 518 U.S.
839 (1996) and the Federal Circuit decision in Tyler Const. Group v. United States, 570 F.3d 1329 (Fed.
Cir. 2009)—stand, at most, for the general proposition that federal contracting is subject to applicable
federal law. Winstar, 518 U.S. at 870–71 (plurality op.); Tyler, 570 F.3d at 1333 (quoting FAR
§ 1.102(d), 48 C.F.R. § 1.102(d)).
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include COVID-19 safety clauses in their federal contracts, thus allowing those
federal contractors to voluntarily comply with the Task Force guidelines.” Doc. 97 at
11-12. Defendants’ purported concern with allowing “federal contractors to
voluntarily comply with the Task Force guidelines, including requiring their
employees to be vaccinated,” ignores the plain language of the Court’s injunction.
Doc.97 at 11–12. This Court recognized that under its injunction “entities will still
be free to encourage their employees to get vaccinated, and the employees will still be
free to choose to be vaccinated.” Doc.94 at 25. The injunction expresses no opinion on
private federal contractors enforcing their own COVID-related safeguards, including
those modeled on the COVID-19 Task Force Guidance Clause. Defendants’ request to
“voluntarily” include the COVID-19 Task Force Guidance Clause in new and existing
contracts is a backdoor attempt to pressure federal contractors to follow the Task
Force Guidance while the preliminary injunction is pending. As set forth above, there
is nothing “voluntary” about Defendants’ use of EO 14042 to impose COVID-19 Task
Force Guidance Clauses into federal contracts. This wink-wink attempt by
Defendants to enforce EO 14042 should be rejected.
CONCLUSION
For the foregoing reasons, the Court should deny Defendants’ request to clarify
the preliminary injunction.
Respectfully submitted this 7th day of January, 2022.
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)
18
Case 1:21-cv-00163-RSB-BKE Document 110 Filed 01/07/22 Page 19 of 22
Misha Tseytlin (Admitted Pro Hac Vice)
/s/ Drew F. Waldbeser Special Assistant Attorneys General
Stephen Petrany for Plaintiffs the State of Georgia,
Solicitor General Governor Brian P. Kemp, in his
Drew F. Waldbeser (Admitted Pro Hac official capacity, Commissioner Gary
Vice) W. Black, in his official capacity, and
Deputy Solicitor General the Board of Regents of the University
Ross W. Bergethon System of Georgia
Deputy Solicitor General
Office of the Attorney General Troutman Pepper Hamilton Sanders
40 Capitol Square, S.W. LLP
Atlanta, Georgia 30334 Bank of America Plaza, Suite 3000
Tel.: 404.458.3378 600 Peachtree Street N.E.
Fax: 404.656.2199 Atlanta, Georgia 30308-2216
dwaldbeser@law.ga.gov Tel.: 404.885.3000
Fax: 404.962.6515
Counsel for State of Georgia Plaintiffs Harold.Melton@troutman.com
Counsel for State of Georgia Plaintiffs
/s/ Paul H. Dunbar III
Paul H. Dunbar III (Ga. Bar No. 233300)
Capers Dunbar Sanders & Bellotti, LLP
2604 Commons Boulevard
Augusta, Georgia 30909
Tel.: 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 William G. Parker, Jr. (Admitted Pro
Marshall Hac Vice)
General Counsel
/s/ Edmund G. LaCour Jr. Office of the Governor
Edmund G. LaCour Jr. (Admitted Pro Alabama State Capitol
Hac Vice) 600 Dexter Avenue, Room N-203
Solicitor General Montgomery, Alabama 36130
Thomas A. Wilson (Admitted Pro Hac Tel.: 334.242.7120
Vice) Fax: 334.242.2335
Deputy Solicitor General Will.Parker@governor.alabama.gov
Office of the Attorney General
501 Washington Ave. Counsel for Governor Kay Ivey
Montgomery, Alabama 36130
19
Case 1:21-cv-00163-RSB-BKE Document 110 Filed 01/07/22 Page 20 of 22
Tel.: 334.353.2196
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
W. Scott Zanzig (Admitted Pro Hac Brant M. Laue (Admitted Pro Hac Vice)
Vice) Solicitor General
Deputy Attorney General 20 SW 10th Avenue, 2nd Floor
954 W. Jefferson, 2nd Floor Topeka, Kansas 66612
P.O. Box 83720 Tel.: 785.296.2215
Boise, Idaho 83720-0010 Fax: 785.296.6296
Tel.: 208.334.2400 brant.laue@ag.ks.gov
Fax: 208.854.8073
scott.zanzig@ag.idaho.gov Counsel for the State of Kansas
Counsel for the State of Idaho
20
Case 1:21-cv-00163-RSB-BKE Document 110 Filed 01/07/22 Page 21 of 22
STATE OF SOUTH CAROLINA STATE OF SOUTH CAROLINA
Office of South Carolina Attorney Office of Governor Henry McMaster
General Alan Wilson
/s/ Thomas A. Limehouse, Jr.
/s/ J. Emory Smith, Jr. Thomas A. Limehouse, Jr. (Admitted
J. Emory Smith, Jr. (Admitted Pro Hac Pro Hac Vice)
Vice) Chief Legal Counsel
Deputy Solicitor General Wm. Grayson Lambert (Admitted Pro
Thomas T. Hydrick (Admitted Pro Hac Hac Vice)
Vice) Senior Legal Counsel
Assistant Deputy Attorney General Michael G. Shedd (Admitted Pro Hac
Office of the Attorney General Vice)
P.O. Box 11549 Deputy Legal Counsel
Columbia, South Carolina 29211 Office of the Governor
Tel.: 803.734-.680 South Carolina State House
Fax: 803.734.3677 1100 Gervais Street
esmith@scag.gov Columbia, South Carolina 29201
Tel.: 803.734.2100
Counsel for the State of South Carolina tlimehouse@governor.sc.gov
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
Reyes
Morrisey
/s/ Melissa A. Holyoak
/s/ Lindsay See Melissa A. Holyoak (Admitted Pro Hac
Lindsay See (Admitted Pro Hac Vice) Vice)
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, Utah 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
21
Case 1:21-cv-00163-RSB-BKE Document 110 Filed 01/07/22 Page 22 of 22
CERTIFICATE OF SERVICE
I hereby certify that on January 7, 2022, I caused to be electronically filed a
true and correct copy of the foregoing with the Clerk of the Court using the
CM/DOC system which will automatically send email notification of such filing to
all counsel of record.
This 7th day of January, 2022.
/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
22
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