Georgia v. Biden

574 F.Supp.3d 1337

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

United States District Court, S.D. Georgia, Augusta Division.

Signed December 7, 2021

Harold David Melton, Charles E. Peeler, Troutman Pepper, Atlanta, GA, Misha Tseytlin, Pro Hac Vice, Chicago, IL, Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Drew F. Waldbeser, Pro Hac Vice, Georgia Attorney General's Office, Atlanta, GA, for Plaintiff State of Georgia.

Edmund Gerard LaCour, Jr., Pro Hac Vice, Thomas A. Wilson, Pro Hac Vice, Alabama Attorney General's Office, Montgomery, AL, Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Charles E. Peeler, Troutman Pepper, Atlanta, GA, for Plaintiff State of Alabama.

Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, W. Scott Zanzig, Pro Hac Vice, Idaho Office of the Attorney General Office of the Attorney General, Boise, ID, Charles E. Peeler, Troutman Pepper, Atlanta, GA, for Plaintiff State of Idaho.

Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Brant M. Laue, Pro Hac Vice, Solicitor General of Kansas, Topeka, KS, Charles E. Peeler, Troutman Pepper, Atlanta, GA, for Plaintiff State of Kansas.

James Emory Smith, Jr., Pro Hac Vice, Office of the SC Attorney General, Columbia, SC, Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Thomas T. Hydrick, Pro Hac Vice, Office of the Attorney General, Columbia, SC, Charles E. Peeler, Troutman Pepper, Atlanta, GA, for Plaintiff State of South Carolina.

Melissa A. Holyoak, Pro Hac Vice, Office of the Utah Attorney General, Salt Lake City, UT, Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Charles E. Peeler, Troutman Pepper, Atlanta, GA, for Plaintiff State of Utah.

Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Charles E. Peeler, Troutman Pepper, Atlanta, GA, Lindsay S. See, West Virginia Attorney General's Office, Charleston, WV, for Plaintiff State of West Virginia.

Harold David Melton, Charles E. Peeler, Troutman Pepper, Atlanta, GA, Misha Tseytlin, Pro Hac Vice, Troutma, Chicago, IL, Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Drew F. Waldbeser, Pro Hac Vice, Georgia Attorney General's Office, Atlanta, GA, for Plaintiffs Brian P. Kemp, Board of Regents of the University System of Georgia, Gary W. Black.

Edmund Gerard LaCour, Jr., Pro Hac Vice, Alabama Attorney General's Office, Montgomery, AL, Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Charles E. Peeler, Troutman Pepper, Atlanta, GA, William G. Parker, Pro Hac Vice, Office of Governor Kay Ivey Alabama State Capitol, Montgomery, AL, for Plaintiff Kay Ivey.

Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, W. Scott Zanzig, Pro Hac Vice, Idaho Office of the Attorney General Office of the Attorney General, Boise, ID, Charles E. Peeler, Troutman Pepper, Atlanta, GA, for Plaintiffs Brad Little, Idaho State Board of Education.

Michael G. Shedd, Pro Hac Vice, Thomas A. Limehouse, Jr., Pro Hac Vice, Wm. Grayson Lambert, Pro Hac Vice, Office of the Governor, State of South Carolina, Columbia, SC, Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Charles E. Peeler, Troutman Pepper, Atlanta, GA, for Plaintiff Henry McMaster.

Edmund Gerard LaCour, Jr., Pro Hac Vice, Alabama Attorney General's Office, Montgomery, AL, Paul H. Dunbar, III, Capers, Dunbar, Sanders & Bellotti, LLP, Augusta, GA, Charles E. Peeler, Troutman Pepper, Atlanta, GA, Thomas A. Wilson, Pro Hac Vice, Office of the Alabama Attorney General, Montgomery, AL, for Plaintiffs Alabama Department of Agriculture and Industries, Alabama Department of Public Health, Alabama Department of Rehabilitation Services.

J. Larry Stine, Kathleen J. Jennings, Wimberly Lawson, Atlanta, GA, for Plaintiff J. Larry Stine.

Bradford Collins Patrick, Matthew Allan Josephson, U.S. Attorney's Office, Savannah, GA, Vinita Andrapalliyal, Dept. of Justice-Civil Division, Washington, DC, for Defendants.

ORDER

R. STAN BAKER, UNITED STATES DISTRICT JUDGE

Plaintiffs, comprised of the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia; the governors of several of those states; and various state agencies, including the Board of Regents of the University System of Georgia, filed this suit seeking declaratory and injunctive relief against enforcement of Executive Order 14042, which requires, inter alia , that contractors and subcontractors performing work on certain federal contracts ensure that their employees and others working in connection with the federal contracts are fully vaccinated against COVID-19. (Docs. 1, 54.) Upon filing the lawsuit, Plaintiffs requested that this Court issue a preliminary injunction. (Docs. 19, 55.) Additionally, Associated Builders and Contractors, Inc. (hereinafter, "ABC"), a trade organization, and one of its chapters, Associated Builders and Contractors of Georgia, Inc. (hereinafter, "ABC-Georgia"), (hereinafter, collectively, "Proposed Intervenors") filed a Motion to Intervene in the action, (doc. 48), and also filed their own Motion for Preliminary Injunction, (doc. 50). The Court established an expedited briefing schedule and, following the submission of responses by the Defendants to all motions, (docs. 61, 63), and the submission of replies by Plaintiffs and by the Proposed Intervenors, (docs. 76–78), the Court conducted a hearing on the Motions on December 3, 2021.

As another Court that has preliminarily enjoined the same measure at issue in this case has stated, "[t]his case is not about whether vaccines are effective. They are." Kentucky v. Biden, No. 3:21-cv-55, 571 F.Supp.3d 715, 719 (E.D. Ky. Nov. 30, 2021). Moreover, the Court acknowledges the tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe. However, even in times of crisis this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities. Indeed, the United States Supreme Court has recognized that, while the public indisputably "has a strong interest in combating the spread of [COVID-19]," that interest does not permit the government to "act unlawfully even in pursuit of desirable ends." Ala. Ass'n of Realtors v. HHS, ––– U.S. ––––, 141 S. Ct. 2485, 2490, 210 L.Ed.2d 856 (2021) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 585–86, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) ). In this case, 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. Accordingly, after due consideration of the motions, supporting briefs, responsive briefing, and the evidence and argument presented at the hearing,¹ the Court GRANTS IN PART and DENIES IN PART the Motion to Intervene, (doc. 48), GRANTS ABC's Motion for Preliminary Injunction, (doc. 50), and GRANTS Plaintiffs' Amended Motion for Preliminary Injunction, (doc. 55).

BACKGROUND

On January 20, 2021, President Biden signed Executive Order 13991, establishing the "Safer Federal Workforce Task Force" (hereinafter, the "Task Force"). 86 Fed. Reg. 7,045 –48 (Jan. 20, 2021). The Task Force's stated mission is to "provide ongoing guidance to heads of agencies on the operation of the Federal Government, the safety of its employees, and the continuity of Government functions during the COVID-19 pandemic." Id. at 7,046.

On September 9, 2021, President Biden signed Executive Order 14042 (hereinafter, " EO 14042"). 86 Fed. Reg. 50,985 –88 (Sept. 9, 2021). Therein, the President stated that his order would "promote[ ] economy and efficiency in Federal procurement by ensuring that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument," which would "decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the Federal Government." Id. at § 1. EO 14042 mandated that the Task Force provide, by September 24, 2021, guidance regarding "adequate COVID-19 safeguards," which must be complied with by federal contractors and subcontractors. Id. at 50,985. This executive order specified that the Task Force's guidance would be mandatory at all "contractor or subcontractor workplace locations" so long as the Director of the Office of Management and Budget (hereinafter, the "OMB") approved the guidance and determined that it would "promote economy and efficiency in Federal contracting." Id. EO 14042 states that it applies, with some specified exceptions, to "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-like instrument." Id.

On September 24, the Task Force issued its Guidance for Federal Contractors and Subcontractors (hereinafter, the "Task Force Guidance") pursuant to EO 14042. See Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors , available at https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf (last visited Dec. 4, 2021). The Task Force Guidance requires all "covered contractors"² to be fully vaccinated by January 18, 2022,³ unless they are "legally entitled to an accommodation." Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Updated November 10, 2021), at...