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Florida Mdfl 8 21 Cv 02524 11Th 22 10257 Doc 047 Att 0

Summary

A joint motion to maintain a stay, filed November 9, 2022 as Document 47 in State of Florida v. Bill Nelson, Administrator of NASA, et al., No. 8:21-cv-2524-SDM-TGW, in the United States District Court for the Middle District of Florida. The parties ask the court to continue the stay pending a request by either party to lift it. The motion recounts that on December 22, 2021 the court granted in part Florida's motion for a preliminary injunction challenging Executive Order 14042, and that on December 30, 2021 it enjoined the Federal Government from enforcing the order's COVID Safety Protocols for Federal Contractors within Florida. It states that the Federal Government appealed on January 12, 2022, that the case was stayed, and that the appeal was later voluntarily dismissed. It adds that on October 14, 2022 the Federal Government announced possible changes to the order's implementation.

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No. 8:21-cv-02524-SDM-TGW · Doc. 47 · Docket on CourtListener

Full text

Case 8:21-cv-02524-SDM-TGW Document 47 Filed 11/09/22 Page 1 of 4 PageID 750




                    IN THE UNITED STATES DISTRICT COURT
                    FOR THE MIDDLE DISTRICT OF FLORIDA

 STATE OF FLORIDA,
                      Plaintiff,
               v.
                                                    No. 8:21-cv-2524-SDM-TGW
 BILL NELSON, in his official capacity
 as Administrator of NASA, et al.,
                      Defendants.

                      JOINT MOTION TO MAINTAIN STAY

       The parties jointly request that the Court continue to stay further proceedings

in this matter pending a request by either party to lift the stay.

       On December 22, 2021, the Court granted in part Florida’s motion for a prelim-

inary injunction on Florida’s claim that Executive Order 14042 exceeded the Presi-

dent’s statutory authority under the Federal Procurement and Administrative Services

Act (FPASA). See ECF No. 37. The Court retained under advisement the balance of

Florida’s motion, which raises additional challenges to EO 14042 and its implementa-

tion. See id. at 35, 37–38. On December 30, 2021, the Court issued an order enjoining

the Federal Government “from enforcing within Florida any contract clause requiring

compliance with the COVID Safety Protocols for Federal Contractors described in

Executive Order 14042 *** or from denying Florida a government contract based on

Florida’s refusal to agree to such a contract clause.” ECF No. 40.

       On January 12, 2022, the Federal Government appealed the Court’s Opinion

and Order, see ECF No. 41, and the parties jointly moved to stay this case pending
Case 8:21-cv-02524-SDM-TGW Document 47 Filed 11/09/22 Page 2 of 4 PageID 751




resolution of the appeal, see ECF No. 42. On January 19, the Court granted the motion

and stayed the case. See ECF No. 44. The Federal Government has since voluntarily

dismissed its appeal. See ECF No. 46. Nevertheless, the parties agree that this case

should remain stayed.

      On October 14, 2022, the Federal Government announced possible changes to

EO 14042’s implementation. Specifically, the Safer Federal Workforce Taskforce an-

nounced that it intends to begin a process to update its guidance regarding COVID-19

safety protocols for covered contractor and subcontractor workplace locations. If the

Task Force issues updated protocols, the OMB Director may issue a determination as

to whether compliance with the updated protocols would promote economy and effi-

ciency in Federal contracting. If the OMB Director in fact determines that compliance

would promote economy and efficiency, she may publish her determination in the

Federal Register. At that point, OMB may provide additional guidance to agencies on

the timing and considerations for provision of written notice from agencies to contrac-

tors regarding enforcement of contract clauses implementing EO 14042. Until then,

the Federal Government has said that it will not enforce contract clauses implementing

EO 14042. See https://www.saferfederalworkforce.gov/contractors/.

      In order to litigate its challenges to EO 14042 and its implementing guidance to

final judgment, Florida may need to amend its complaint to account for any new econ-

omy-and-efficiency determination by the OMB Director. As a result, and given that

the current preliminary injunction prevents the Federal Government from enforcing

such a determination in Florida, the parties jointly request that the Court continue to

                                          2
Case 8:21-cv-02524-SDM-TGW Document 47 Filed 11/09/22 Page 3 of 4 PageID 752




stay further proceedings in this case. Once the OMB Director decides whether to issue

a new economy and efficiency determination, the parties will confer regarding next

steps in this case.



DATED: November 9, 2022                      Respectfully submitted,

Ashley Moody                                 BRIAN M. BOYNTON
ATTORNEY GENERAL                             Principal Deputy Assistant Attorney
                                             General
John Guard (FBN 374600)
CHIEF DEPUTY ATTORNEY GENERAL                BRAD P. ROSENBERG
                                             Assistant Director
/s/ James H. Percival
James H. Percival* (FBN 1016188)             /s/ Kevin Wynosky
DEPUTY ATTORNEY GENERAL                      ZACHARY A. AVALLONE
      OF LEGAL POLICY                        KEVIN WYNOSKY
                                             (PA Bar No. 326087)
Henry C. Whitaker (FBN 1031175)              Trial Attorneys
SOLICITOR GENERAL                            U.S. Department of Justice
                                             Civil Division
Natalie P. Christmas (FBN 1019180)           Federal Programs Branch
ASSISTANT ATTORNEY GENERAL                   1100 L Street NW, Room 12400
      OF LEGAL POLICY                        Washington, D.C. 20005
                                             (202) 616-8267
Office of the Attorney General               Kevin.J.Wynosky@usdoj.gov
The Capitol, Pl-01
Tallahassee, Florida 32399-1050              Counsel for Defendants
(850) 414-3300
(850) 410-2672 (fax)
james.percival@myfloridalegal.com

Counsel for the State of Florida




                                         3
Case 8:21-cv-02524-SDM-TGW Document 47 Filed 11/09/22 Page 4 of 4 PageID 753




                            CERTIFICATE OF SERVICE

      On November 9, 2022, I electronically submitted the foregoing document with

the clerk of court for the U.S. District Court, Middle District of Florida, using the

electronic case filing system of the Court. I hereby certify that I have served all parties

electronically or another way authorized by Federal Rule of Civil Procedure 5(b)(2).

                                         /s/ Kevin Wynosky
                                         KEVIN WYNOSKY
                                         Trial Attorney
                                         U.S. Department of Justice

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