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Georgia Sdga 1 21 Cv 00163 11Th 21 14269 Doc 111 Att 0
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Defendants' Reply in Support of Request for Clarification in The State of Georgia, et al. v. Joseph R. Biden, et al., No. 1:21-cv-00163-RSB-BKE, in the U.S. District Court for the Southern District of Georgia, filed January 14, 2022 as Doc. 111. The federal defendants ask whether the preliminary injunction allows enforcement of the COVID-19 safety clause's masking, physical distancing and workplace safety coordination protocols, and whether contractors may voluntarily agree to include the clause. The reply argues that the Court keeps jurisdiction to clarify its order while the injunction is on appeal to the Eleventh Circuit. It responds to the plaintiffs' and intervenors' oppositions, ECF No. 110 and ECF No. 109. The seven-page reply is signed by Department of Justice Civil Division attorneys.
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No. 1:21-cv-00163-RSB-BKE · Doc. 111 · Docket on CourtListener
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Case 1:21-cv-00163-RSB-BKE Document 111 Filed 01/14/22 Page 1 of 7
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
)
THE STATE OF GEORGIA, et al. )
)
Plaintiffs, )
)
v. ) Case No. 1:21-cv-163-RSB-BKE
)
JOSEPH R. BIDEN in his official )
capacity as President of the United )
States, et al. )
)
Defendants. )
DEFENDANTS’ REPLY IN SUPPORT OF REQUEST FOR CLARIFICATION
Defendants seek clarification from this Court on whether the preliminary injunction (1)
allows enforcement of the masking, physical distancing, and workplace safety coordination
protocols set forth in that Guidance; and (2) allows private contractors to mutually agree with
federal agencies to abide by the COVID-19 safety clause incorporating the safeguards set forth in
the Safer Federal Workforce Task Force Guidance for federal contractors and subcontractors
(COVID-19 safety clause). Contrary to Plaintiffs’ and Intervenors’ assertions, it is well-established
that this Court has the authority to clarify the terms of its preliminary injunction order under the
jurisdiction it maintains to supervise compliance with the order and to maintain the status quo.
Moreover, clarification is warranted. The preliminary injunction order can be read to allow
Defendants (1) to enforce the COVID-19 safety clause’s requirements that do not relate to
vaccination; and (2) to reach agreements with federal contractors to abide by the COVID-19 safety
clause, even if Defendants cannot enforce those agreements. Defendants wish to pursue both of
these goals if permitted under the order, in accordance with the federal government’s desire to
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Case 1:21-cv-00163-RSB-BKE Document 111 Filed 01/14/22 Page 2 of 7
maximize the workplace safety and health of its federal contractors and, therefore, maximize
economy and efficiency in the Federal procurement system. Plaintiffs’ and Intervenors’ arguments
against Defendants’ clarification request are unpersuasive. They baselessly characterize
Defendants’ request to enter into voluntary agreements to include a COVID-19 safety clause as
coercive, even though the existence of the injunction would ensure that no contractor would feel
coerced. They also claim that Defendants are somehow estopped from seeking clarification
because Defendants issued guidance that interpreted the preliminary injunction order more broadly
while they awaited clarification from this Court. But Defendants’ decision to minimize their
litigation risk while seeking clarity on the scope and effect of this Court’s order should be lauded,
not held against them. Defendants’ request for clarification should accordingly be granted.
ARGUMENT
I. This Court has jurisdiction over Defendants’ clarification request.
As an initial matter, Plaintiffs and Intervenors both argue that, because Defendants have
appealed this Court’s preliminary injunction to the United States Court of Appeals for the Eleventh
Circuit, this Court lacks jurisdiction to clarify the scope of its preliminary injunction order. See
Pls.’ Opp’n at 12–13, ECF No. 110; Intvnrs.’ Opp’n at 2–3, ECF No. 109. That is incorrect.
Granted, as a general matter a district court may not materially alter or dissolve a
preliminary injunction order that is on appeal. E.g., Coastal Corp. v. Texas E. Corp., 869 F.2d 817,
819 (5th Cir. 1989). It is, however, well-settled that, notwithstanding a pending appeal, district
courts retain jurisdiction to “maintain the status quo of the parties pending the appeal.” Id.
Moreover, it is the consistent understanding of district courts across the country that maintaining
the status quo includes retaining the authority to clarify the scope of the entered injunction, since
clarification would preserve the status quo of the court’s intended contours of its order. See, e.g.,
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Case 1:21-cv-00163-RSB-BKE Document 111 Filed 01/14/22 Page 3 of 7
Washington Metro. Area Transit Comm'n v. Reliable Limousine Serv., LLC, 985 F. Supp. 2d 23,
29 (D.D.C. 2013) (“The district court’s power to modify an injunction to preserve the status quo
necessarily includes the lesser power to clarify the injunction to supervise compliance” while
appeal of the preliminary injunction is pending.); Flatiron Health, Inc. v. Carson, No. 19 CIV.
8999 (VM), 2020 WL 416423, at *3 (S.D.N.Y. Jan. 27, 2020) (“[T]he Court’s power to preserve
the status quo includes the power to clarify the terms of an injunction.”); Miller v. Honkamp
Krueger Fin. Servs., Inc., No. 5:20-CV-05056-KES, 2021 WL 1238423, at *1 (D.S.D. Apr. 2,
2021) (“The court has jurisdiction here to modify or clarify the injunction so long as such a
clarification only preserves the status quo and does not alter the parties’ rights.”); Abdi v. Nielsen,
287 F. Supp. 3d 327, 332–33 (W.D.N.Y. 2018) (“[The Court has jurisdiction over Petitioners’
motion to clarify notwithstanding Respondents’ interlocutory appeal of the November 17, 2017,
Decision, pursuant to its inherent authority to supervise compliance with the injunctive relief
granted therein.”); Barnstead Broad. Corp. v. Offshore Broad. Corp., 869 F. Supp. 35, 39 (D.D.C.
1994) (“The Court retains jurisdiction to decide Defendant’s Motion for Clarification [of its
preliminary injunction order] because to do so might aid in the appeal.”); see also Meinhold v. U.S.
Dep’t of Def., 34 F.3d 1469, 1480 n.14 (9th Cir. 1994) (“As the district court issued the amended
order to clarify its original injunction and to supervise compliance in the wake of Meinhold’s
motion for contempt, it did not lack jurisdiction.”).
Therefore, this Court has jurisdiction over Defendants’ clarification request.
II. Clarification of this Court’s preliminary injunction order is warranted.
Defendants seek clarification of this Court’s opinion and order in two respects. First,
Defendants seek guidance on whether the preliminary injunction prevents federal agencies from
enforcing the COVID-19 safety clause’s requirements related to masking, physical distancing, and
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Case 1:21-cv-00163-RSB-BKE Document 111 Filed 01/14/22 Page 4 of 7
workplace safety coordination at covered contractor workplaces. See Determination of the Acting
OMB Director Regarding the Revised Safer Federal Workforce Task Force Guidance for Federal
Contractors and the Revised Economy & Efficiency Analysis, 86 Fed. Reg. 63,418, 63,420–21
(“OMB Determination”). Those portions of the COVID-19 safety clause were not specifically
prohibited in this Court’s preliminary injunction order, which enjoined Defendants “from
enforcing the vaccine mandate for federal contractors and subcontractors.” Order at 27. While this
Court apparently referred to the safety clause as a whole by stating that “the directives contained
within EO 14042 were not authorized by the Procurement Act,” Order at 27, it analyzed the rest
of the preliminary injunction factors only in the context of the vaccine requirement. See Order at
24 (examining testimony from Plaintiffs’ witnesses about the compliance efforts to “ensure that .
. . employees have been fully vaccinated (or have requested and been granted an accommodation
or exemption) by the deadline” to conclude that Plaintiffs had established irreparable harm); Order
at 25–26 (analyzing the balance of the harms with sole reference to the COVID-19 safety clause’s
vaccination requirement). If this Court clarified its order to allow Defendants to continue to enforce
the non-vaccination requirements in the COVID-19 safety clause, the federal government could
protect the workplace safety and health of its federal contractors—and thereby maximize economy
and efficiency in the Federal procurement system—by requiring its contractual partners to take
sensible precautions (i.e., masking, physical distancing, and workplace safety coordination) that
help prevent the spread of this highly contagious disease that has now claimed more than 830,000
lives, CDC, COVID Data Tracker https://covid.cdc.gov/covid-data-tracker/#datatracker-home
(last accessed Jan. 12, 2022), and has disrupted economic productivity on an unprecedented scale.
This result would also accord with the principles of judicial minimalism and severability.
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Case 1:21-cv-00163-RSB-BKE Document 111 Filed 01/14/22 Page 5 of 7
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 190 (1999) (assuming without
deciding that “the severability standard for statutes . . . applies to Executive Orders”).
Plaintiffs argue that, because Defendants initially issued guidance to agencies that
prohibited these agencies from enforcing any aspect of the COVID-19 safety clause while
Defendants awaited clarification from this Court, it would be unfair and too difficult to clarify the
preliminary injunction order to permit partial enforcement now. Pls.’ Opp’n at 16–17. But
Defendants should not be penalized for proceeding with an abundance of caution while they
awaited word from this Court on the scope of the preliminary injunction. And Defendants can
easily issue new guidance to assist agencies and federal contractors in understanding their
obligations under EO 14042 in accordance with this Court’s order. Intervenors, meanwhile, argue
that it is “not necessary” to construe the preliminary injunction order to allow Defendants to
enforce the masking, physical distancing, and coordination aspects of the COVID-19 safety clause
because of the Department of Labor’s Occupational Safety and Health Administration (OSHA)
guidance. Intvnrs.’ Opp’n at 6. OSHA’s guidance, however, is irrelevant to the question of whether
this Court’s order applies to the masking and distancing requirements of the COVID-19 safety
clause.
Second, Defendants seek guidance on whether the preliminary injunction order prohibits
private federal contractors from mutually agreeing with Defendants to include the COVID-19
safety clause in their federal contracts, thus allowing those federal contractors to voluntarily
comply with the Task Force Guidance, including requiring their employees to be vaccinated. To
be clear, Defendants recognize that, due to the injunction, they could not enforce COVID-19 safety
clauses. Any voluntary inclusion of the COVID-19 safety clause in this scenario would not occur
under the terms of EO 14042, but rather would be a mutually agreed-upon clause that federal
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Case 1:21-cv-00163-RSB-BKE Document 111 Filed 01/14/22 Page 6 of 7
contractors could include at will. The clarification that Defendants seek is utterly unremarkable
given Plaintiffs’ own acknowledgement that, under this Court’s 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.” Pls.’ Opp’n at 17 (quoting Order at 11–12). And many federal contractors may,
in fact, choose on their own to require their employees to be vaccinated, regardless of this Court’s
injunction or their status as federal contractors—for example to demonstrate a commitment to
public health and safety to their employees. 1 All Defendants thus seek to clarify is that the
injunction allows private parties to seek and agree to include the COVID-19 safety clause entirely
on their own volition.
Plaintiffs incorrectly frame the clarification request as attempting to “pressure federal
contractors to follow the Task Force Guidance while the preliminary injunction is pending.” Pls.’
Opp’n at 17. But as explained above, there could be no coercive effect because the contractors
would know that Defendants would not be able to enforce the agreement against them; it would
be necessarily voluntary compliance on the part of the contractors. And Intevenors’ assertion that
Defendants’ request should be denied because “there is no such thing as ‘mutual agreements’
between the federal government and contractors,” Intvnrs.’ Opp’n at 3, ignores that the federal
government competes for the procurement of critical goods and services from contractors against
myriad private companies and other governmental bodies.
1
Other additional reasons may lead the parties to include provisions notwithstanding
their current unenforceability. For instance, the inclusion of COVID-19 safety measures into
contracts may facilitate cost reimbursement to contractors related to such measures. And the
contractual inclusion of COVID-19 safety measures would benefit Defendants in the event that
EO 14042 is reinstated during this litigation in that Defendants would not have to wait to
include/renegotiate COVID-19 safety provisions.
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Case 1:21-cv-00163-RSB-BKE Document 111 Filed 01/14/22 Page 7 of 7
CONCLUSION
For the foregoing reasons, Defendants respectfully request clarification of this Court’s
preliminary injunction.
Dated: January 14, 2022 Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
DAVID ESTES
United States Attorney
BRAD P. ROSENBERG
Assistant Branch Director
Civil Division
/s/ Vinita B. Andrapalliyal
VINITA B. ANDRAPALLIYAL
LEE REEVES
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box No. 883, Ben Franklin Station
Washington, DC 20044
Phone: (202) 305-0845
Fax: (202) 616-8470
E-mail: vinita.b.andrapalliyal@usdoj.gov
/s/ Bradford C. Patrick
Bradford C. Patrick
Assistant United States Attorney
South Carolina Bar No. 102092
Post Office Box 8970
Savannah, Georgia 31412
Telephone: (912) 652-4422
Email: bradford.patrick@usdoj.gov
Attorneys for Defendants
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