Georgia v. President of the U.S.

46 F.4th 1283

State of GEORGIA, State of Alabama, State of Idaho, State of Kansas, State of South Carolina, et al., Plaintiffs-Appellees,

v.PRESIDENT OF THE UNITED STATES, Safer Federal Workforce Task Force, United States Office of Personnel Management, Director, Office of Personnel Management and Co-Chair Safer Federal Workforce Task Force, Office of Management and Budget, et al., Defendants-Appellants.

No. 21-14269

United States Court of Appeals, Eleventh Circuit.

Filed: August 26, 2022

Harold D. Melton, Charles E. Peeler, Troutman Pepper Hamilton Sanders, LLP, Atlanta, GA, Misha Tseytlin, Troutman Pepper Hamilton Sanders, LLP, Chicago, IL, Paul H. Dunbar, III, Capers Dunbar Sanders Bruckner & Bellotti, LLP, Augusta, GA, Stephen John Petrany, Drew Waldbeser, Attorney General's Office, Atlanta, GA, for Plaintiffs-Appellees State of Georgia, Governor of the State of Georgia, Board of Regents of the University System of Georgia, and Commissioner of the Georgia Department of Agriculture.

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

Paul H. Dunbar, III, Capers Dunbar Sanders Bruckner & Bellotti, LLP, Augusta, GA, Brian Patrick Kane, Dayton P. Reed, William Scott Zanzig, Idaho Office of the Attorney General, Civil Litigation Division, Boise, ID, Charles E. Peeler, Troutman Pepper Hamilton Sanders, LLP, Atlanta, GA, for Plaintiff-Appellee State of Idaho.

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

James Emory Smith, Jr., Attorney General's Office, Columbia, SC, Paul H. Dunbar, III, Capers Dunbar Sanders Bruckner & Bellotti, LLP, Augusta, GA, Thomas T. Hydrick, Attorney General's Office, Columbia, SC, Charles E. Peeler, Troutman Pepper Hamilton Sanders, LLP, Atlanta, GA, for Plaintiff-Appellee State of South Carolina.

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

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

Edmund Gerard LaCour, Jr., Thomas Alexander Wilson, Alabama Attorney General's Office, Montgomery, AL, Paul H. Dunbar, III, Capers Dunbar Sanders Bruckner & Bellotti, LLP, Augusta, GA, William Glenn Parker, Jr., General Counsel, Office of the Governor, Montgomery, AL, Charles E. Peeler, Troutman Pepper Hamilton Sanders, LLP, Atlanta, GA, for Plaintiff-Appellee Governor of the State of Alabama.

Paul H. Dunbar, III, Capers Dunbar Sanders Bruckner & Bellotti, LLP, Augusta, GA, Charles E. Peeler, Troutman Pepper Hamilton Sanders, LLP, Atlanta, GA, Dayton P. Reed, William Scott Zanzig, Idaho Office of the Attorney General, Civil Litigation Division, Boise, ID, for Plaintiffs-Appellees Governor of the State of Idaho, and Idaho State Board of Education.

William Grayson Lambert, Office of the Governor, State of South Carolina, Columbia, SC, Paul H. Dunbar, III, Capers Dunbar Sanders Bruckner & Bellotti, LLP, Augusta, GA, Thomas Ashley Limehouse, Jr., Office of the Governor, State of South Carolina, Columbia, SC, Charles E. Peeler, Troutman Pepper Hamilton Sanders, LLP, Atlanta, GA, for Plaintiff-Appellee Governor of the State of South Carolina.

Kathleen J. Jennings, James Larry Stine, Wimberly Lawson Steckel Schneider & Stine, PC, Atlanta, GA, for Plaintiff-Appellee Associated Builders and Contractors, Inc.

Anna O. Mohan, Joshua Revesz, David Peters, Daniel Winik, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, Vinita Andrapalliyal, U.S. Department of Justice - Civil Division, Federal Programs Branch, Washington, DC, Matthew Allan Josephson, Bradford Collins Patrick, U.S. Attorney Service - Southern District of Georgia, U.S. Attorney's Office, Savannah, GA, for Defendants-Appellants President of the United States, Safer Federal Workforce Task Force, United States Office of Personnel Management, Director, Office of Personnel Management and Co-Chair Safer Federal Workforce Task Force, Office of Management and Budget, Acting Director, Office of Management and Budget and Member of the Safer Federal Workforce Task Force, General Services Administration, Administrator, General Services Administration and Co-Chair of Safer Federal Workforce Task Force, Co-Chair of Safer Federal Workforce Task Force and Covid-19 Response Coordinator, Director, Federal Protective Service, Director, United States Secret Service, Administrator, Federal Emergency Management Agency, Director, Center for Disease Control, U.S. Department of Defense, Secretary, Department of Defense, Department of Defense, U.S. Department of Health and Human Services, Secretary, U.S. Department of Health and Human Services, National Institutes of Health, Director, National Institute of Health, U.S. Department of Veterans Affairs, National Science Foundation, Director, National Science Foundation, U.S. Department of Commerce, Secretary, U.S. Department of Commerce, National Aeronautics and Space Administration, Administrator, National Aeronautics and Space Administration, U.S. Department of Transportation, Director, Department of Transportation, U.S. Department of Energy, and Secretary, U.S. Department of Energy.

Anna O. Mohan, Joshua Revesz, Daniel Winik, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, Vinita Andrapalliyal, U.S. Department of Justice - Civil Division, Federal Programs Branch, Washington, DC, Matthew Allan Josephson, Bradford Collins Patrick, U.S. Attorney Service - Southern District of Georgia, U.S. Attorney's Office, Savannah, GA, for Defendant-Appellant Secretary, U.S. Department of Veterans Affairs.

Michael A. Caplan, Caplan Cobb, LLC, Atlanta, GA, Jeffrey B. Dubner, Rachel L. Fried, JoAnn Kintz, Jessica Morton, Democracy Forward Foundation, Washington, DC, for Amici Curiae American Academy of Allergy, Asthma & Immunology, American Academy of Family Physicians, American Academy of Pediatrics, American College of Chest Physicians, American College of Medical Genetics and Genomics, American College of Physicians, American Geriatrics Society, American Lung Association, American Medical Association, American Medical Women's Association, American Psychiatric Association, American Society for Clinical Pathology, American Society of Hematology, American Thoracis Society, and Society of Interventional Radiology.

Natalie Christmas, Office of the Attorney General, Tallahassee, FL, for Amici Curiae State of Florida, State of Alaska, State of Arkansas, State of Arizona, State of Indiana, State of Iowa, State of Kentucky, State of Louisiana, State of Mississippi, the State of Missouri, State of Montana, State of Nebraska, State of New Hampshire, State of Ohio, State of Oklahoma, State of South Dakota, State of Tennessee, and State of Texas.

Scott A. Keller, Lehotsky Keller, LLP, Washington, DC, for Amicus Curiae Chamber of Commerce of the United States of America.

Before Grant, Anderson, and Edmondson, Circuit Judges.

Opinion of the Court

Grant, Circuit Judge:

Executive Order 14042 directs executive agencies to include a clause in procurement agreements requiring federal contractors to comply with workplace safety rules designed to respond to the Covid-19 pandemic. We consider one of those requirements here: a mandate that employees who work on or in connection with a covered contract, or share a workplace with another employee who does, be fully vaccinated against Covid-19.

In this lawsuit—one of many brought across the country to challenge the contractor vaccine mandate—the district court entered a nationwide preliminary injunction after concluding that the plaintiffs were likely to prevail on their assertion that the mandate was outside the scope of the Procurement Act. The court ordered the federal government not to enforce the mandate in any covered agreement. We agree that the plaintiffs’ challenge to the mandate will likely succeed and that they are entitled to preliminary relief. Even so, because the injunction's nationwide scope is too broad, we vacate it in part.

I.

A.

When Congress passed the Procurement Act (also called the Federal Property and Administrative Services Act) in 1949, it prefaced the new statute with a declaration of policy: "It is the intent of the Congress in enacting this legislation to provide for the Government an economical and efficient system" for "the procurement and supply of personal property and nonpersonal services." Federal Property and Administrative Services Act of 1949, Pub. L. No. 81-152, § 2, 63 Stat. 377, 378. That purpose statement, with modernized language, is now found in § 101 of Title 40. See 40 U.S.C. § 101 ("The purpose of this subtitle is to provide the Federal Government with an economical and efficient system" for activities including "[p]rocuring and supplying property and nonpersonal services, and performing related functions.").

In line with that purpose, the Procurement Act constructed an administrative apparatus for the federal government's procurement system. At the head of that system is the President. The Act authorizes the President, in the key provision here, to "prescribe policies and directives that the President considers necessary to...