On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction temporarily in Georgia v. Biden, halting the enforcement of Executive Order 14042 (EO 14042) nationwide. In doing so, the court joined the U.S. District Court for the Eastern District of Kentucky, which issued a preliminary injunction in Kentucky v. Biden last week halting the enforcement of EO 14042 in Kentucky, Ohio and Tennessee.
Seven states — Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia — the governors of several of those states, and various state agencies filed the lawsuit in the Southern District of Georgia, challenging EO 14042 and requesting that the court issue a preliminary injunction. The Associated Builders and Contractors, Inc. (ABC), a trade organization, moved to intervene in the action, and the court granted ABC’s request. In granting the preliminary injunction, the court determined that the plaintiffs met each of these required elements: (1) likelihood of success; (2) irreparable harm; (3) the balance of the harm; and (4) public interest.
Similar to the findings of the court in Kentucky v. Biden, here the court determined that the plaintiffs are likely to succeed in their claim that President Biden exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act (FPASA) when issuing EO 14042. The court explained that it “is unconvinced, at this stage of litigation, that [FPASA] authorized [President Biden] to direct the types of actions by agencies that are contained in EO 14042.” The court concluded 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 [FPASA].”
The court further concluded that the compliance costs of EO 14042 constitute irreparable harm and that enjoining enforcement of EO 14042 would preserve the status quo, whereas failing to do so would force the plaintiffs to comply with the mandate. Finally, the court found that an injunction was in the public interest, citing the Fifth Circuit’s decision in BST Holdings, LLC v. Occupational Safety & Health Administration, which temporarily enjoined the enforcement of the Emergency Temporary Standard issued by the Occupational Safety and Health Administration.
Based on these factors, the court issued a nationwide preliminary injunction. The court noted that the geographic scope of ABC’s membership is broad, and therefore limiting the preliminary injunction to the seven plaintiff states would not provide ABC’s members injunctive relief with respect to covered contracts in other states.
The federal government likely will appeal the court’s order issuing the preliminary injunction to the Eleventh Circuit. The federal government’s appeal of the preliminary injunction issued in Kentucky, Ohio and Tennessee, as well as its emergency motion to stay the preliminary injunction pending appeal, are already pending in the Sixth Circuit. We will provide information on further developments in future alerts.