ABC Files Lawsuit Challenging “Blacklisting” Executive Order

by Bradley Arant Boult Cummings LLP

As we recently reported, the Federal Acquisition Regulatory (FAR) Council has published a final rule, effective October 25, 2016, implementing the Fair Pay and Safe Workplaces Executive Order (also known as the “blacklisting” Executive Order). Not surprisingly, the final rule – which allows private citizens to report alleged labor violations by federal contractors and requires federal prime contractors and subcontractors under covered procurements (i.e., ones where the estimated value exceeds $500,000) to disclose to the government certain labor violations – has caused much consternation in the government contracts community. Predictably, the final rule and the Executive Order have been met with their first court challenge.

On October 7, 2016, the Associated Builders and Contractors (ABC) filed a lawsuit in the U.S. District Court for the Eastern District of Texas, seeking to “have declared unlawful and set aside” the Executive Order, as implemented by the final rule and Department of Labor (DOL) guidance. According to the complaint – which was filed against the Administrator of the Office of Federal Procurement Policy and the FAR Council, among others – “[t]he Executive Order, FAR Rule, and DOL Guidance are unprecedented in their exercise of authority over matters previously controlled by Congress.” More specifically, the complaint asserts that “the Executive Order, FAR Rule and DOL Guidance compel prospective and existing contractors to publicly disclose and declare whether they have been found to have violated any of fourteen federal labor laws, even though such ‘violations’ have not been finally adjudicated by any court and even if the claimed violations are still being contested or have been settled without a hearing and without any finding of an actual violation of any law.” According to the complaint, “[t]he potential consequences of such compelled speech are severe,” and this particular component of the Executive Order and the final rule “violate the First Amendment to the United States Constitution . . . .” Moreover, according to the complaint, “[t]he new regulatory regime” “violates the due process rights of such government contractors by exposing them to disqualification from government contracts without a hearing for alleged violations of labor and employment laws that have not been finally adjudicated by administrative agencies and the courts, contrary to the intent of Congress and in an arbitrary and capricious manner.” As a final matter, the complaint asserts that “[t]he Executive Order and the FAR Rule also for the first time prohibit government contractors from entering into lawful arbitration agreements with their employees,” “thereby violat[ing] the Federal Arbitration Act . . . .”

In light of the foregoing allegations, ABC has requested that the Court enter a preliminary – and permanent – injunction, “enjoining Defendants from implementing the challenged Executive Order, [Final] Rule, and [DOL] Guidance in all jurisdictions where Plaintiffs’ members and the U.S. government do business, i.e., nationwide.” ABC, of course, also requested “that the Court enter a declaratory judgment as to each of the Counts set forth” in the complaint.

According to the Court’s docket, oral argument on ABC’s request for a preliminary injunction was held on October 22, 2016. As of the publication of this article, it does not appear that the Court has ruled on ABC’s preliminary injunction request. However, the Court’s ruling on ABC’s preliminary injunction request will likely be issued in short order, given that the final rule contains an effective date of October 25, 2016. We will continue to monitor this noteworthy development.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bradley Arant Boult Cummings LLP | Attorney Advertising

Written by:

Bradley Arant Boult Cummings LLP

Bradley Arant Boult Cummings LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.