Court filing

Brief for Appellees (Government) — Donovan v. Biden (9th Cir.)

Filed December 23, 2022 in Donovan v. Biden; one of 5 filings from this case.

Record facts

Court	U.S. Court of Appeals for the Ninth Circuit
Filed	2022-12-23

Full text

No. 22-35474

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAVID G. DONOVAN, et al.,

Plaintiffs-Appellants,

JOSEPH R. BIDEN, et al.,

Defendants-Appellees.

On Appeal from the United States District Court
for the Eastern District of Washington

BRIEF FOR APPELLEES

BRIAN M. BOYNTON
Principal Deputy Assistant Attorney
General
VANESSA R. WALDREF
United States Attorney
MARK B. STERN
ANNA O. MOHAN
DAVID L. PETERS
Attorneys, Appellate Staff
Civil Division, Room 7209
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 514-1673

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TABLE OF CONTENTS
Page
STATEMENT OF JURISDICTION ................................................................................... 1
STATEMENT OF ISSUES .................................................................................................... 1
PERTINENT STATUTES AND REGULATIONS ........................................................ 2
STATEMENT OF THE CASE ............................................................................................. 3
A.
Legal Background .............................................................................................. 3
1.
Federal Contracting And The Procurement Act ............................... 3
2.
Federal Employees And The Civil Service Reform Act .................. 3
B.
COVID-19 Safety Requirements For Federal Contractors And
Employees ........................................................................................................... 5
1.
The COVID-19 Pandemic ................................................................... 5
2.
The Challenged Federal Actions .......................................................... 7
C.
Prior Proceedings ............................................................................................... 9
SUMMARY OF ARGUMENT ........................................................................................... 17
STANDARD OF REVIEW ................................................................................................ 20
ARGUMENT ......................................................................................................................... 21
I.
THE DISTRICT COURT LACKS JURISDICTION OVER THE CLAIMS OF
MOST PLAINTIFFS ....................................................................................................... 21
A.
The Vast Majority Of Plaintiffs Face No Actual Or Imminent
Injury .................................................................................................................. 21
B.
The Federal Employees’ Claims Are Precluded By The Civil
Service Reform Act .......................................................................................... 27
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II.
PLAINTIFFS’ CHALLENGES TO THE CONTRACTOR EXECUTIVE ORDER
ARE WITHOUT MERIT ................................................................................................ 32
A.
Plaintiffs Failed To State A Claim For Violation Of The Religious
Freedom Restoration Act ............................................................................... 32
B.
The Contractor Executive Order Is A Proper Exercise Of
Authority Under The Procurement Act ....................................................... 35
C.
The Contractor Executive Order Reflects The Required Nexus
To Economy And Efficiency In Federal Procurement ............................. 44
D.
No Other Considerations Cast Doubt On The Validity Of The
Contractor Executive Order .......................................................................... 48
E.
The OMB Determination Does Not Suffer From Procedural
Deficiencies ....................................................................................................... 54
III.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DECLINING
TO AFFORD PLAINTIFFS LEAVE TO AMEND .......................................................... 58
CONCLUSION ..................................................................................................................... 59
STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM

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iii

TABLE OF AUTHORITIES
Cases:
Page(s)

AFL-CIO v. Kahn,
618 F.2d 784 (D.C. Cir. 1979) ....................................................................... 37, 38, 47, 52

Alabama Ass’n of Realtors v. Department of Health & Human Servs.,
141 S. Ct. 2485 (2021) .................................................................................................. 50, 51

American Fed’n of Gov’t Emps. v. Carmen,
669 F.2d 815 (D.C. Cir. 1981) .............................................................................. 47, 52, 53

Axon Enter., Inc. v. FTC,
986 F.3d 1173 (9th Cir. 2021),
cert. granted in part, 142 S. Ct. 895 (2022) .............................................................. 27, 28, 29

Baldwin v. Redwood City,
540 F.2d 1360 (9th Cir. 1976) .............................................................................................. 1

Biden v. Missouri,
142 S. Ct. 647 (2022) ........................................................................................................... 51

Boeing Co. v. Movassaghi,
768 F.3d 832 (9th Cir. 2014) .............................................................................................. 53

Bova v. City of Medford,
564 F.3d 1093 (9th Cir. 2009) ............................................................................................ 22

Brnovich v. Biden,
562 F. Supp. 3d 123 (D. Ariz. 2022) .................................................................... 54, 55-56

Building & Constr. Trades Dep’t v. Allbaugh,
295 F.3d 28 (D.C. Cir. 2002) ............................................................................................. 52

Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ............................................................................................................. 34

Chamber of Commerce v. Napolitano,
648 F. Supp. 2d 726 (D. Md. 2009) ........................................................................... 39, 52
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Chrysler Corp. v. Brown,
441 U.S. 281 (1979) ............................................................................................................. 43

Chugach Mgmt. Servs. v. Jetnil,
863 F.3d 1168 (9th Cir. 2017) ............................................................................................ 40

Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ....................................................................................14, 23-24, 25, 26

Colwell v. Department of Health & Human Servs.,
558 F.3d 1112 (9th Cir. 2009) ............................................................................................ 25

Contractors Ass’n of E. Pa. v. Secretary of Labor,
442 F.2d 159 (3d Cir. 1971) ........................................................................... 37, 39, 47, 52

CoreCivic, Inc. v. Candide Grp., LLC,
46 F.4th 1136 (9th Cir. 2022) ............................................................................................. 32

Detroit Int’l Bridge Co. v. Government of Canada,
189 F. Supp. 3d 85 (D.D.C. 2016),
aff’d, 875 F.3d 1132 (D.C. Cir. 2017),
aff’d, 883 F.3d 895 (D.C. Cir. 2018) .................................................................................. 55

D’Lil v. Best W. Encina Lodge & Suites,
538 F.3d 1031 (9th Cir. 2008) ............................................................................................ 21

Elgin v. Department of the Treasury,
567 U.S. 1 (2012) ...................................................................................4, 18, 28, 29, 30, 31

Farkas v. Texas Instrument, Inc.,
375 F.2d 629 (5th Cir. 1967) .............................................................................................. 39

FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ...................................................................................................... 50, 51

Feds for Med. Freedom v. Biden,
25 F.4th 354 (5th Cir. 2022) ........................................................................................ 48, 52

Feds for Med. Freedom v. Biden,
581 F. Supp. 3d 826 (S.D. Tex.), vacated and remanded,
30 F.4th 503 (5th Cir.), and reh’g en banc granted, opinion vacated,
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37 F.4th 1093 (5th Cir. 2022) .......................................................................................... 9
30 F.4th 503 (5th Cir. 2022) ............................................................................................... 31
37 F.4th 1093 (5th Cir. 2022) ............................................................................................. 31

Fort Bend County v. Davis,
139 S. Ct. 1843 (2019) ......................................................................................................... 31

Franklin v. Massachusetts,
505 U.S. 788 (1992) ............................................................................................................. 54

Gartrell Constr. Inc. v. Aubry,
940 F.2d 437 (9th Cir. 1991) .............................................................................................. 53

GEO Grp., Inc. v. Newsom,
50 F.4th 745 (9th Cir. 2022) ............................................................................................... 53

Georgia v. President of the United States,
46 F.4th 1283 (11th Cir. 2022) ....................................................................... 42, 43, 49-50

Gundy v. United States,
139 S. Ct. 2116 (2019) .................................................................................................. 36, 52

Hodel v. Virginia Surface Mining & Reclamation Ass’n,
452 U.S. 264 (1981) ............................................................................................................. 26

Kentucky v. Biden,
23 F.4th 585 (6th Cir. 2022) ............................................................................................... 41
571 F. Supp. 3d 715 (E.D. Ky. 2021) ........................................................................ 56, 57

Kerr v. Jewell,
836 F.3d 1048 (9th Cir. 2016) ............................................................................... 27, 28, 30

Kisor v. Wilkie,
139 S. Ct. 2400 (2019) ......................................................................................................... 37

Leslie Miller, Inc. v. Arkansas,
352 U.S. 187 (1956) ............................................................................................................. 53

Louisiana v. Biden,
-- F.4th --, 2022 WL 17749291 (Dec. 19, 2022 5th Cir.) ........ 43, 44, 47, 48, 49, 50, 52

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Mack Trucks, Inc. v. EPA,
682 F.3d 87 (D.C. Cir. 2012) ............................................................................................. 56

Mobilize the Message, LLC v. Bonta,
50 F.4th 928 (9th Cir. 2022) ............................................................................................... 20

Montana Envtl. Info. Ctr. v. Stone-Manning,
766 F.3d 1184 (9th Cir. 2014) ............................................................................... 21-22, 22

NASA v. Nelson,
562 U.S. 134 (2011) ............................................................................................................. 51

National Fed’n of Indep. Bus. v. Department of Labor, OSHA,
142 S. Ct. 661 (2022) ........................................................................................................... 50

Natural Res. Def. Council, Inc. v. U.S. Dep’t of State,
658 F. Supp. 2d 105 (D.D.C. 2009) .................................................................................. 55

Navajo Nation v. U.S. Forest Serv.,
535 F.3d 1058 (9th Cir. 2008) ............................................................................... 33, 34, 35

Perkins v. Lukens Steel Co.,
310 U.S. 113 (1940) ............................................................................................................. 49

Rydie v. Biden,
2022 WL 1153249 (4th Cir. Apr. 19, 2022) ..................................................................... 31

Salameh v. Tarsadia Hotel,
726 F.3d 1124 (9th Cir. 2013) ............................................................................................ 20

Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) ............................................................................................................. 22

Texas v. United States,
523 U.S. 296 (1998) ................................................................................................ 22, 23, 26

Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc.,
576 U.S. 519 (2015) ............................................................................................................. 40

Thomas v. Anchorage Equal Rights Comm’n,
220 F.3d 1134 (9th Cir. 2000) ............................................................................... 17, 22, 23
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vii

Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994) ....................................................................................27, 28, 28-29, 30

TransUnion LLC v. Ramirez,
141 S. Ct. 2190 (2021) .................................................................................................. 22, 23

Trump v. New York,
141 S. Ct. 530 (2020) .................................................................................................... 17, 26

UAW-Labor Emp. & Training Corp. v. Chao,
325 F.3d 360 (D.C. Cir. 2003) .................................................................................... 11, 38

United States v. Corinthian Colls.,
655 F.3d 984 (9th Cir. 2011) .............................................................................................. 58

United States v. Fausto,
484 U.S. 439 (1988) ............................................................................................................... 4

United States v. Real Prop. Located at 475 Martin Lane, Beverly Hills, CA,
545 F.3d 1134 (9th Cir. 2008) ............................................................................................ 20

United States v. Virginia,
139 F.3d 984 (4th Cir. 1998) .............................................................................................. 53

Utility Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014) ................................................................................................ 49, 50, 51

West Virginia v. EPA,
142 S. Ct. 2587 (2022) ............................................................................................ 49, 50, 51

Willis v. City of Seattle,
943 F.3d 882 (9th Cir. 2019) .............................................................................................. 33

Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................................................................................. 32

Wolfson v. Brammer,
616 F.3d 1045 (9th Cir. 2010) ............................................................................................ 24

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viii

U.S. Constitution:

Art. III, § 2, cl. 1 ...................................................................................................................... 21

Statutes:

Act of Mar. 3, 1871, ch. 114, § 9, 16 Stat. 495, 514-15 ........................................................ 3

Federal Property and Administrative Services Act of 1949,
40 U.S.C. § 101 et seq. ............................................................................................................ 3
40 U.S.C. § 101 ...................................................................... 3, 19, 36, 40, 43, 44, 45, 48
40 U.S.C. § 121(a) ..............................................................................3, 19, 36, 40, 43, 46

Pub. L. No. 99-500, 100 Stat. 1783 (1986) .......................................................................... 40

Pub. L. No. 99-591, 100 Stat. 3341 (1986) .......................................................................... 40

Pub. L. No. 104-208, 110 Stat. 3009 (1996) ........................................................................ 40

Pub. L. No. 107-217, 116 Stat. 1062 (2002) ........................................................................ 40

3 U.S.C. § 301 ........................................................................................................................... 54

5 U.S.C. § 553(a)(2) ................................................................................................................. 54

5 U.S.C. § 1212(a)(2) ............................................................................................................... 30

5 U.S.C. § 1214(a)(1)(A) ......................................................................................................... 30

5 U.S.C. § 1214(b)(2)(B)-(C) .................................................................................................. 30

5 U.S.C. § 2302(a) .................................................................................................................... 30

5 U.S.C. § 3301(1) ...................................................................................................................... 4

5 U.S.C. § 3301(2) ...................................................................................................................... 4

5 U.S.C. § 3302 ........................................................................................................................... 4

5 U.S.C. § 7301 ........................................................................................................................... 3
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5 U.S.C. § 7512 ........................................................................................................................... 4

5 U.S.C. § 7513(d) ......................................................................................................... 4, 30, 31

5 U.S.C. § 7703(a)(1) ................................................................................................................. 4

5 U.S.C. § 7703(b) ...................................................................................................................... 4

28 U.S.C. § 1291 ........................................................................................................................ 1

28 U.S.C. § 1331 ........................................................................................................................ 1

28 U.S.C. § 1343 ........................................................................................................................ 1

41 U.S.C. § 133 ......................................................................................................................... 55

41 U.S.C. § 1707(a)(1) ............................................................................................................. 55

41 U.S.C. § 1707(c) .................................................................................................................. 54

41 U.S.C. § 1707(c)(1) ............................................................................................................. 54

41 U.S.C. § 1707(d) ................................................................................................................. 55

42 U.S.C. § 1395x(e)(9) ........................................................................................................... 51

42 U.S.C. § 2000bb-1(b) ......................................................................................................... 33

Rule:

Fed. R. App. P. 4(a)(1)(B) ........................................................................................................ 1

Other Authorities:

86 Fed. Reg. 50,985 (Sept. 14, 2021) .............................................................. 1, 7, 34, 44, 55

86 Fed. Reg. 50,989 (Sept. 14, 2021) ....................................................................... 1, 7, 8, 36

86 Fed. Reg. 53,692 (Sept. 28, 2021) .................................................................................... 57

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86 Fed. Reg. 63,418 (Nov. 16, 2021) ................................ 6, 7, 8, 24, 25, 34, 45, 55, 56, 57

Abay Asfaw, Cost of Lost Work Hours Associated with the COVID-19 Pandemic―United
States, March 2020 Through February 2021, 65 Am. J. Indus. Med. 20 (2022) ................. 6

CDC:
Benefits of Getting a COVID-19 Vaccine, https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/vaccine-benefits.html (last updated Dec. 5, 2022) .......................... 45
COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker/#datatracker-
home (last visited Dec. 23, 2022) .................................................................................... 5
COVID-19 Vaccine Effectiveness Monthly Update, https://covid.cdc.gov/covid-data-
tracker/#vaccine-effectiveness (last updated Nov. 10, 2022) .................................. 45
Delta Variant: What We Know About the Science (Aug. 26, 2021),
https://perma.cc/4RW6-7SGB ...................................................................................... 5
Potential Rapid Increase of Omicron Variant Infections in the United States (Dec. 20, 2021),
https://perma.cc/6CWF-QZQW .................................................................................. 5

Exec. Order No. 11,246,
30 Fed. Reg. 12,319 (Sept. 28, 1965) .................................................................................. 3

Exec. Order No. 12,800,
57 Fed. Reg. 12,985 (Apr. 14, 1992) ................................................................................... 3

Exec. Order No. 13,201,
66 Fed. Reg. 11,221 (Feb. 22, 2001) ................................................................................. 39

Exec. Order No. 13,465,
73 Fed. Reg. 33,285 (June 11, 2008) .......................................................................... 38, 39

Exec. Order No. 13,706,
80 Fed. Reg. 54,697 (Sept. 10, 2015) ......................................................................... 38, 53

GAO, GAO-20662, COVID-19 Contracting: Observations on Contractor Paid Leave
Reimbursement Guidance and Use (Sept. 2020), https://perma.cc/TPF7-9VN4 ............. 6

Jessica Mathews, The Major Companies Requiring Workers to Get COVID Vaccines,
Fortune (Aug. 23, 2021), https://perma.cc/2WQZ-SUCA ........................................... 6

Safer Fed. Workforce Task Force, Vaccinations,
https://perma.cc/JFN4-Y7LU ................................................................................ 8, 9, 23

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U.S. Dep’t of Health & Human Servs., Determination That a Public Health Emergency
Exists (Jan. 31, 2020), https://perma.cc/VZ5X-CT5R .................................................. 5

Eduardo Levy Yeyati & Federico Filippini, Social and Economic Impact of COVID-19
(Brookings Inst., Brookings Global Working Paper #158, June 2021),
https://perma.cc/4J2W-N83V ....................................................................................... 5-6

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STATEMENT OF JURISDICTION
Plaintiffs invoked the district court’s jurisdiction under 28 U.S.C. §§ 1331 and
1343. 2-ER-29. On December 17, 2021, the district court denied plaintiffs’ motion
for preliminary injunctive relief. 2-ER-140-59. On May 12, 2022, the district court
dismissed plaintiffs’ Second Amended Complaint and entered final judgment. See 1-
ER-15. On June 9, 2022, plaintiffs filed a timely notice of appeal of the final
judgment. 3-ER-306; see Fed. R. App. P. 4(a)(1)(B). This Court has appellate
jurisdiction over the district court’s interlocutory order and final judgment under 28
U.S.C. § 1291. See Baldwin v. Redwood City, 540 F.2d 1360, 1364 (9th Cir. 1976) (“The
interlocutory order merges in the final judgment and may be challenged in an appeal
from that judgment.”).
STATEMENT OF ISSUES
Amidst an unprecedented pandemic, the President issued two executive orders
aimed at ameliorating the impact of COVID-19 on federal contractors and the federal
workforce. Executive Order 14,042 directs federal agencies to include in certain
contracts a clause requiring contractor employees to follow COVID-19 safety
protocols, including a vaccination requirement. 86 Fed. Reg. 50,985 (Sept. 14, 2021)
(Contractor EO). Executive Order 14,043 directs federal agencies to require certain
federal employees be vaccinated against COVID-19 unless a legally required exception
applies. 86 Fed. Reg. 50,989 (Sept. 14, 2021) (Employee EO).
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Plaintiffs—eight federal employees and 306 current or former employees of
federal contractors—challenged the executive orders. After plaintiffs repeatedly failed
to cure “procedural and jurisdictional flaws” in their pleadings, the district court
dismissed plaintiffs’ Second Amended Complaint. 1-ER-3. The court concluded that
all the federal employees and the vast majority of contractor employees “fail[ed] to
establish they meet the standing requirements to maintain this action.” 1-ER-7. As to
the remaining contractor employees, the district court concluded that their various
procedural and substantive challenges to the Contractor EO “fail[ed] to state claims
upon which relief may be granted.” 1-ER-11.
The questions on appeal are:
1. Whether the district court correctly concluded that the federal employees
and the vast majority of contractor plaintiffs failed to establish subject-matter
jurisdiction to maintain this suit.
2. Whether the district court correctly concluded that the remaining contractor
plaintiffs failed to state claims upon which relief may be granted.
3. Whether the district court abused its discretion in denying plaintiffs leave to
amend their complaint.
PERTINENT STATUTES AND REGULATIONS
Pertinent statutes and regulations are reproduced in the addendum to this brief.
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STATEMENT OF THE CASE
A.
Legal Background
1.
Federal Contracting And The Procurement Act
Congress enacted the Federal Property and Administrative Services Act of
1949, 40 U.S.C. § 101 et seq.—known as the Procurement Act—with the aim of
“provid[ing] the Federal Government with an economical and efficient system” for
“[p]rocuring and supplying property and nonpersonal services, and performing related
functions including contracting.” Id. § 101. The Act empowers the President to
“prescribe policies and directives that the President considers necessary to carry out”
that objective. Id. § 121(a). Presidents have long used this power to issue a wide
variety of executive orders relating to federal procurement and contracting. See, e.g.,
Exec. Order No. 11,246, 30 Fed. Reg. 12,319, 12,319 (Sept. 28, 1965) (forbidding
civilian contractors from discriminating on the basis of race, creed, color, or national
origin); Exec. Order No. 12,800, 57 Fed. Reg. 12,985, 12,985 (Apr. 14, 1992)
(requiring contractors to inform their employees that they have a right not to pay
union dues).
2.
Federal Employees And The Civil Service Reform Act
Consistent with the President’s role as head of the Executive Branch, Congress
has long recognized the President’s authority to “prescribe regulations for the conduct
of employees in the executive branch.” 5 U.S.C. § 7301; see Act of Mar. 3, 1871, ch.
114, § 9, 16 Stat. 495, 514-15. The President is authorized to “prescribe such
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regulations for the admission of individuals into the civil service in the executive
branch as will best promote the efficiency of that service” and to “ascertain the fitness
of applicants as to age, health, character, knowledge, and ability.” 5 U.S.C. § 3301(1),
(2). And the President has broad delegated authority to “prescribe rules governing the
competitive service.” Id. § 3302.
The Civil Service Reform Act (CSRA), enacted in 1978, created a framework of
administrative and judicial review for federal employees to challenge adverse
personnel actions. The CSRA replaced an “outdated patchwork of statutes and rules
built up over almost a century” with a “comprehensive and integrated review
scheme.” United States v. Fausto, 484 U.S. 439, 444, 454 (1988) (quotation marks
omitted). As relevant here, the CSRA governs review of “major adverse”
employment actions, including removal. Id. at 447; see 5 U.S.C. § 7512. Once an
action is “taken,” the employee has a right of “appeal to the” Merit Systems
Protection Board (MSPB), id. § 7513(d), which can “order relief to prevailing
employees, including reinstatement, backpay, and attorney’s fees,” Elgin v. Department
of the Treasury, 567 U.S. 1, 6 (2012). The Federal Circuit can review MSPB decisions. 5
U.S.C. § 7703(a)(1), (b).
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B.
COVID-19 Safety Requirements For Federal Contractors
And Employees
1.
The COVID-19 Pandemic
Since January 2020, the United States has been in a state of public health
emergency because of COVID-19. U.S. Dep’t of Health & Human Servs.,
Determination That a Public Health Emergency Exists (Jan. 31, 2020),
https://perma.cc/VZ5X-CT5R. During that period, there have been more than 100
million confirmed cases of COVID-19 in America and more than one million
Americans have died from the disease. Ctrs. for Disease Control & Prevention
(CDC), COVID Data Tracker, https://covid.cdc.gov/covid-data-tracker/#datatracker-
home (last visited Dec. 23, 2022). Beginning in July 2021, cases, deaths, and
hospitalizations due to COVID-19 once more began to rise dramatically following the
emergence of a “more infectious” strain of the virus known as the Delta variant.
CDC, Delta Variant: What We Know About the Science (Aug. 26, 2021),
https://perma.cc/4RW6-7SGB. In December 2021, another strain, the Omicron
variant, began to cause “a rapid increase in infections” due to its “increased
transmissibility and … ability … to evade immunity conferred by past infection or
vaccination.” CDC, Potential Rapid Increase of Omicron Variant Infections in the United
States (Dec. 20, 2021), https://perma.cc/6CWF-QZQW.
COVID-19 has also led to massive economic disruptions in the public and
private sectors. The global economy contracted by 3.5 percent in 2020. Eduardo
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Levy Yeyati & Federico Filippini, Social and Economic Impact of COVID-19, at 1
(Brookings Inst., Brookings Global Working Paper #158, June 2021),
https://perma.cc/4J2W-N83V. One study estimates that between March 2020 and
February 2021 the pandemic cost $138 billion in lost work hours among U.S. full-time
private-sector employees. Abay Asfaw, Cost of Lost Work Hours Associated with the
COVID-19 Pandemic―United States, March 2020 Through February 2021, 65 Am. J. Indus.
Med. 20 (2022). In the public sector, the Government Accountability Office (GAO)
reports that in the first six months of the pandemic a single federal agency, the
Department of Energy, spent more than $550 million reimbursing contractors for
COVID-19-related paid leave. GAO, GAO-20662, COVID-19 Contracting: Observations
on Contractor Paid Leave Reimbursement Guidance and Use 11 (Sept. 2020),
https://perma.cc/TPF7-9VN4.
Once vaccines against COVID-19 became widely available in the United States,
many private companies chose to mitigate the costs of the pandemic by imposing
vaccination requirements on their workers and, in some cases, on visitors to their
premises. 86 Fed. Reg. 63,418, 63,422 & n.13 (Nov. 16, 2021) (citing Jessica Mathews,
The Major Companies Requiring Workers to Get COVID Vaccines, Fortune (Aug. 23, 2021),
https://perma.cc/2WQZ-SUCA). Many companies have reported high rates of
compliance with these requirements. See id. at 63,422 (citing examples).
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2.
The Challenged Federal Actions
On September 9, 2021, President Biden issued two executive orders to address
COVID-19’s impact on federal contractors and employees. See 86 Fed. Reg. 50,985;
86 Fed. Reg. 50,989.
a.
The Contractor EO instructs departments and agencies, “to the extent
permitted by law,” to incorporate a COVID-19 safety clause into certain future
contracts and solicitations. 86 Fed. Reg. at 50,985. That clause requires that
contractors and subcontractors comply with guidance developed by a federal task
force, upon a determination by the Office of Management and Budget (OMB)
Director that adherence to the guidance “by contractors or subcontractors[] will
promote economy and efficiency in Federal contracting.” Id. The Contractor EO by
its terms does not apply to existing contracts absent the contractor’s consent, and it
has no application to contractors’ workplaces that are unconnected to work on a
federal contract. See id.
On November 10, 2021, the Acting OMB Director determined that the task
force’s guidance would promote economy and efficiency in federal contracting. 86
Fed. Reg. at 63,418 (OMB Determination). The Acting OMB Director explained that,
“[j]ust as … private businesses have concluded that vaccination, masking, and physical
distancing requirements will make their operations more efficient and competitive in
the market, … the Guidance will realize economy and efficiency in Federal
contracting.” Id. at 63,421. The OMB Determination accordingly required “covered
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contractor employees” to be fully vaccinated against COVID-19 unless they are legally
entitled to an accommodation. Id. at 63,420. As to the accommodation requirement,
the OMB Determination explained that a contractor employer “may be required to
provide an accommodation to covered contractor employees who communicate to
the … contractor that they are not vaccinated against COVID-19 because of a …
sincerely held religious belief, practice, or observance.” Id. The OMB Determination
left to the contractor employer the discretion to “review and consider what, if any,
accommodation [they] must offer.” Id.
b.
The Employee EO instructs federal agencies to “implement, to the
extent consistent with applicable law, a program to require COVID-19 vaccination for
all of [their] Federal employees.” 86 Fed. Reg. at 50,990. It provides that employees
may obtain “exceptions” to the vaccination requirement “as required by law.” Id.
Accordingly, guidance issued by the task force explained that federal employees
may obtain exceptions to the vaccination requirement based on a sincerely held
religious belief, practice, or observance. Safer Fed. Workforce Task Force,
Vaccinations, https://perma.cc/JFN4-Y7LU (Employee Guidance). The employee
guidance also instructed that employees who request an exception should not be
disciplined while the request is pending and that employees whose requests are denied
should have two weeks to begin vaccination before an agency initiates any disciplinary
proceedings. Id. If employees refuse vaccination after having been denied an
exception (or not having requested one), or refuse to disclose their vaccination status,
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the guidance recommends a period of education and counseling, potentially followed
by a letter of reprimand and suspension. Id. If noncompliance continues, agencies
may impose additional discipline up to and including potential removal. Id.1
C.
Prior Proceedings
1.
Plaintiffs are 314 individuals who work or worked at the Hanford
nuclear site in Richland, Washington. 1-ER-6. Eight of the plaintiffs are federal
employees who work for the U.S. Department of Energy (DOE). 2-ER-31 ¶ 20; 2-
ER-42 ¶ 66; 2-ER-46 ¶ 81; 2-ER-51 ¶ 103; 2-ER-56 ¶ 127; 2-ER-67 ¶ 181; 2-ER-88
¶ 306; 2-ER-93 ¶ 325. The remaining 306 plaintiffs work or worked for federal
contractors performing work at the Hanford site. See 2-ER-31-93 (identifying
contractor employees); see also 2-ER-240-41 (identifying contactor employers).
Plaintiffs are subject to the vaccination requirements either as federal employees, 2-
ER-144, or as federal contractor employees, 2-ER-145.
2.
Plaintiffs filed this suit in November 2021, seeking injunctive and
declaratory relief based on various substantive and procedural challenges to the
executive orders and the OMB Determination. 2-ER-281-304.

1 The federal government is currently enjoined from enforcing the Employee
EO nationwide, which includes processing exemption requests. See Feds for Med.
Freedom v. Biden, 581 F. Supp. 3d 826 (S.D. Tex.), vacated and remanded, 30 F.4th 503
(5th Cir.), and reh’g en banc granted, opinion vacated, 37 F.4th 1093 (5th Cir. 2022) (per
curiam).
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The original complaint included limited allegations with regards to some, but
not all, plaintiffs concerning their compliance with the vaccination requirements and
whether they had sought exemptions. See, e.g., 2-ER-251 (alleging as to plaintiff Chris
George only that he “is a security police officer with [federal contractor] HMIS”). At
the time, some plaintiffs had “completed the [exemption request] process, some
[we]re still going through the process, and others h[ad] not applied at all.” 2-ER-145.
Plaintiffs initially named as defendants the President; Brian Vance, a DOE official at
the Hanford site; and individual executives of the contractor employers. 2-ER-240-
41.
Plaintiffs moved for preliminary injunctive relief. See 2-ER-141. After holding
a hearing on the motion, the district court determined that “[p]laintiffs’ attempts at
injunctive relief fall woefully short” and denied the request. 2-ER-143. The court
concluded that plaintiffs were unlikely to prevail on the merits of their claims for
several reasons. 2-ER-149-57.
As an initial matter, the court concluded that plaintiffs lacked a cause of action
to seek injunctive relief against the President and that the individual private sector
executives were not proper defendants. 2-ER-143.
The court next concluded that plaintiffs’ claims were unripe because plaintiffs
“failed to articulate any facts” showing that they faced “an imminent threat of harm or
adverse enforcement action.” 2-ER-151. The court noted that, at the time, the
compliance deadline was still some months away, and that plaintiffs “failed to
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articulate a clear plan to violate the vaccination requirement[s].” 2-ER-151. In
addition, plaintiffs identified no “specific warning or threat” that their employers
would “initiate enforcement proceedings” if they did. 2-ER-151. To the contrary,
declarations from DOE and federal contractors made clear that plaintiffs did “not
face imminent adverse employment action.” 2-ER-151-52.
The court also rejected plaintiffs’ claim that the President exceeded his
Procurement Act authority in promulgating the Contractor EO. The court explained
that under the statute, “executive order[s] must have a ‘sufficiently close nexus to the
values of providing the government an economical and efficient system for
procurement and supply.’” 2-ER-154 (quoting UAW-Labor Emp. & Training Corp. v.
Chao, 325 F.3d 360, 366 (D.C. Cir. 2003)). The court concluded that the Contractor
EO “easily satisfies the nexus requirement” because “it promotes federal government
economy and efficiency by ensuring federal contractors implement adequate COVID-
19 safeguards to protect their workers, … thereby decreasing worker absences,
reducing labor costs, and improving work efficiency at federal contractor worksites.”
2-ER-155.
The court similarly rejected plaintiffs’ various constitutional claims. The court
concluded that plaintiffs failed to carry their burden of “demonstrat[ing that] there are
serious questions going to the merits” of their structural claims premised on
federalism and the Tenth Amendment. 2-ER-154. And the court concluded that
plaintiffs’ Free Exercise claims failed because plaintiffs did “not allege[] sufficient
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facts demonstrating their sincerely held religious views have been affected by the”
vaccination requirement. 2-ER-157.
Finally, the district court held that plaintiffs failed to establish the remaining
requirements for preliminary injunctive relief. The court explained that plaintiffs’
cursory allegations regarding “loss of employment” were insufficient to establish
irreparable harm. 2-ER-158. And the court concluded that the balance of harms and
public interested weighed against plaintiffs’ request. 2-ER-158-59.
3.
Plaintiffs did not appeal the district court’s interlocutory order. Instead,
plaintiffs filed a First Amended Complaint and, after the government filed a motion
to dismiss, a Second Amended Complaint, the operative complaint here. See 2-ER-
26-120. The Second Amended Complaint seeks injunctive and declaratory relief to
address plaintiffs’ purported “imminent and wrongful termination[s]” for failure to
comply with the vaccination requirements. 2-ER-28. Plaintiffs allege that the
executive orders violate the Free Exercise Clause and the Religious Freedom
Restoration Act (RFRA), 2-ER-97-98; that the President exceeded his Procurement
Act authority in issuing the Contractor EO, 2-ER-101-03; that the orders and the
OMB Determination violate the procedural requirements of the Office of Federal
Procurement Policy Act (Procurement Policy Act), 2-ER-104-05, and the
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Administrative Procedure Act (APA), 2-ER-112-17; and that the orders violate
various other constitutional provisions, 2-ER-98-100; 2-ER-106-12; 2-ER-117-18.2
The Second Amended Complaint includes additional allegations regarding
plaintiffs’ compliance with the vaccination requirements. It alleges that three
plaintiffs have complied fully with the vaccination requirements, see 2-ER-44 ¶ 70; 2-
ER-51 ¶ 104; 2-ER-66 ¶ 172, and that three more have neither complied nor yet
sought exemptions, see 2-ER-37 ¶ 46; 2-ER-66 ¶ 173; 2-ER-74 ¶ 223. It alleges that
nearly all other plaintiffs—including all eight federal employees—have requested
exemptions, see, e.g., 2-ER-31-33 ¶¶ 18-28, although a handful have provided
incomplete information regarding their employment, vaccination, or exemption
statuses, see, e.g., 2-ER-32-33 ¶ 27 (no employment information); 2-ER-33 ¶ 32 (no
vaccination or exemption information). Of the plaintiffs that requested exemptions,
more than 50 have been granted accommodations. See, e.g., 2-ER-31-32 ¶¶ 21-23; 2-
ER-63-64 ¶¶ 160-161; 2-ER-81-82 ¶¶ 268-269. Only seven plaintiffs—all contractor
employees—have had their requests denied and claim that they face or faced
disciplinary measures for their noncompliance with the vaccination requirement. See
2-ER-40 ¶ 53; 2-ER-42 ¶ 65; 2-ER-43 ¶ 67; 2-ER-46 ¶ 78; 2-ER-57 ¶ 130; 2-ER-65-66
¶ 171; 2-ER-78-79 ¶ 251. The remaining plaintiffs, including all the federal

2 Plaintiffs also voluntarily dismissed their claims against the private sector
executives, 1-ER-3, and added Jennifer Granholm, in her official capacity as U.S.
Secretary of Energy, as a defendant, 2-ER-29.
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employees, have not had their requests conclusively resolved. See, e.g., 2-ER-33 ¶¶ 28-
30; 2-ER-40 ¶¶ 56-58; 2-ER-46 ¶¶ 79, 81-82 (alleging plaintiffs submitted exemptions
but were “originally not provided an accommodation”).3
The district court granted the government’s renewed motion to dismiss,
concluding that the Second Amended Complaint “continues to suffer from the same
procedural and jurisdictional flaws as prior pleadings.” 1-ER-3.
As a threshold matter, the court concluded that the vast majority of plaintiffs—
307 of 314—failed to establish subject-matter jurisdiction to pursue their claims. The
court concluded that those plaintiffs who are in compliance with the vaccination
requirements, have received accommodations, or have exemption requests pending
failed to establish that they face the threat of immediate adverse employment actions.
1-ER-8. The court also concluded that those plaintiffs who have not provided
information regarding their employment, vaccination, or exemption statuses failed to
establish subject-matter jurisdiction because “it is impossible to know whether they
could face an adverse employment action,” 1-ER-8, or “whose actions [they] are
challenging,” 1-ER-7. And the court concluded that the handful of plaintiffs who
have not yet sought exemptions cannot “‘manufacture’” subject-matter jurisdiction
“by failing to pursue [available] exemptions.” 1-ER-7 (quoting Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 416 (2013)). The court thus concluded that the only plaintiffs

3 The federal government stopped processing all federal employees’ exemption
requests in light of the nationwide injunction. See supra p. 9 n.1.
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who alleged injuries sufficiently “actual [and] imminent” to establish jurisdiction were
the seven contractor employees whose exemption requests were conclusively denied
and who face or faced adverse employment actions. 1-ER-6; 1-ER-9.
On the merits, the court held that those seven plaintiffs failed to state claims
under the Free Exercise Clause and RFRA. The court again rejected plaintiffs’ Free
Exercise claims because plaintiffs nowhere explained how “their sincerely held
religious beliefs have been adversely affected by the” vaccination requirement. 1-ER-
13. The court concluded that plaintiffs’ RFRA claims failed for much the same
reason, as plaintiffs’ allegations did not “identify the religious activities they were
engaged in, or how those activities were substantially burdened.” 1-ER-13.
The court also reiterated its conclusion that the Contractor EO “satisfies the
requirements of the Procurement Act.” 1-ER-9. The court explained that plaintiffs
had “failed to advance any new factual allegations or arguments to support their claim
beyond their reliance on nonbinding authority” from district courts and other courts
of appeals. 1-ER-9.
The court further concluded that plaintiffs’ challenges under the Procurement
Policy Act and APA “fail[ed] as a matter of law.” 1-ER-11. The court explained that
plaintiffs failed to show that the statutes’ requirements applied to the issuance of the
executive orders and OMB Determination. 1-ER-9 (Procurement Policy Act); 1-ER-
11 (APA).
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The court similarly rejected plaintiffs’ structural constitutional challenges.
Those claims were not viable, the district court stated, because plaintiffs’ “broad
recitations of various constitutional principles muddled with repetitive allegations”
made their claims “incomprehensible.” 1-ER-10 (quotation marks omitted).
Finally, although plaintiffs did not request leave to amend, the district court
concluded that granting them leave to do so would be futile. The court explained that
plaintiffs had “amended their Complaint twice” and that their “continued failures to
address the shortcomings in their various pleadings demonstrates a third opportunity
to amend would be futile.” 1-ER-14-15. The court therefore denied plaintiffs’ leave
to amend, dismissed plaintiffs’ claims against the federal defendants, and entered final
judgment in the government’s favor. 1-ER-15; 3-ER-391.
4.
Plaintiffs timely appealed. 3-ER-306. They then moved to consolidate
their appeal with Brnovich v. Biden, No. 22-15518 (9th Cir.), another case involving
challenges to the Contractor EO. See DE11.4 The government opposed plaintiffs’
request on the ground that the interests of judicial economy counseled against
consolidation, but urged this Court to hold plaintiffs’ appeal in abeyance pending the
outcome in Brnovich. DE13 at 3-4. The Court rejected plaintiffs’ consolidation
motion and denied without prejudice the government’s request to stay the
proceedings. DE17.

4 Numbered docket entries in this appeal, No. 22-35474, are abbreviated
“DE#.”
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SUMMARY OF ARGUMENT
I.
The district court correctly held that the vast majority of plaintiffs failed
to establish subject-matter jurisdiction over their claims.
Most plaintiffs have not alleged that they face a sufficiently concrete and
imminent injury to establish subject-matter jurisdiction. The Constitution “mandates
that prior to [a court’s] exercise of jurisdiction there exist a constitutional case or
controversy” and that “the issues presented are definite and concrete, not hypothetical
or abstract.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir.
2000) (en banc) (quotation marks omitted). Plaintiffs premise their claims on the
threat of “imminent and wrongful termination” for failure to comply with the
vaccination requirements. 2-ER-28. But only seven plaintiffs, all of them contractor
employees who have had their exemption requests conclusively denied, adequately
alleged that they face an imminent threat of disciplinary action. The remaining
plaintiffs—including all eight federal employees and 299 of the contractor plaintiffs—
face no concrete and impending injury because they either are in compliance with the
vaccination requirements, have been granted an exemption, have exemption requests
pending, may still request exemptions, or have not established their employment or
compliance statuses. All these plaintiffs’ claims are “riddled with contingencies and
speculation that impede judicial review.” Trump v. New York, 141 S. Ct. 530, 535
(2020) (per curiam).
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The district court also lacks jurisdiction over the federal employees’ claims on
the independent ground that they are precluded by the CSRA, which provides the
“exclusive” means for federal employees to challenge adverse employment actions.
Elgin v. Department of the Treasury, 567 U.S. 1, 5 (2012). The CSRA requires that
employees first seek administrative review of disciplinary actions from the MSPB,
even with respect to constitutional claims; then, if necessary, they may seek judicial
review in the Federal Circuit. See id. at 5-6. The federal employees’ claims—which
amount to preemptive challenges to hypothetical, future personnel actions—are
barred by the CSRA’s comprehensive statutory scheme.
II.
The district court correctly dismissed on the merits the only claims over
which it had jurisdiction―the challenges by seven contractor plaintiffs to the
Contractor EO.
The Contractor EO is facially consistent with RFRA because it authorizes
contractor employers to grant accommodations to individuals who are unvaccinated
because of their religious beliefs. And plaintiffs cannot state a RFRA claim based on
the denial of their accommodation requests because they have neither identified their
religious beliefs nor alleged how the order’s requirements substantially burden their
religious exercise.
The Contractor EO falls well within the President’s authority under the
Procurement Act. The Procurement Act authorizes the President to “prescribe
policies and directives” that he considers “necessary” to ensure “an economical and
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efficient system” for procurement and contracting. 40 U.S.C. §§ 101, 121(a). For
decades, all three branches of government have agreed that the Procurement Act
authorizes the President to pursue policies that in his judgment will improve the
economy and efficiency of the overall federal procurement system by enhancing the
economy and efficiency of the services that the federal government procures. The
Contractor EO is consistent with that tradition. As the President determined,
requiring covered contractor employees to comply with COVID-19 safety protocols,
including vaccination, reduces absenteeism among the federal contractor workforce
resulting from a virulent and deadly disease.

Plaintiffs mistakenly argue that the Contractor EO regulates public health, not
procurement, and if sustained, would permit the President to enact far-fetched orders
governing soda consumption and abortions. But any Procurement Act executive
order must bear a close nexus to the statute’s goals, and the President, as a market
participant and the most accountable elected official, has strong incentives to refrain
from imposing conditions that contractors and the public would view as unacceptable.
The President does not undermine the effectiveness of those limits when he imposes
conditions on federal contractors that are aimed at addressing the distinct and real
threats posed by a pandemic to government operations and that are analogous to
conditions imposed by private and public entities.
No other considerations cast doubt on the validity of the Contractor EO.
Contrary to plaintiffs’ suggestion, major-question principles are inapplicable where, as
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here, the President is acting in his proprietary authority to set conditions for those
that elect do to business with the federal government. And because federal
contracting is a matter reserved to the federal government, not the states, the
Executive Order does not raise federalism concerns. The Contractor EO’s
implementing documents are also procedurally valid.
III.
The district court did not abuse its discretion in denying plaintiffs leave
to amend their complaint. As the court explained, plaintiffs repeatedly failed to
correct the “egregious deficiencies” in their pleadings, despite ample opportunity to
do so. 2-ER-144. The district court thus correctly concluded that any further
opportunity to amend would be futile.
STANDARD OF REVIEW
This Court reviews the district court’s dismissal of the Second Amended
Complaint for failure to state a claim de novo and the denial of leave to amend for an
abuse of discretion. Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1129, 1133 (9th Cir.
2013). The Court reviews the district court’s order denying a preliminary injunction,
which on appeal merges with the final judgment, see United States v. Real Prop. Located at
475 Martin Lane, Beverly Hills, CA, 545 F.3d 1134, 1141 (9th Cir. 2008), for abuse of
discretion, but questions of law are reviewed de novo, Mobilize the Message, LLC v.
Bonta, 50 F.4th 928, 934 (9th Cir. 2022).
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ARGUMENT
I.
THE DISTRICT COURT LACKS JURISDICTION OVER THE CLAIMS OF
MOST PLAINTIFFS
The district court correctly held that the vast majority of plaintiffs failed to
establish subject-matter jurisdiction to pursue their claims. Most plaintiffs—including
all eight federal employees and 299 out of the 306 contractor plaintiffs—failed to
allege that they face a concrete and imminent injury. The district court also lacked
jurisdiction over the federal employees’ claims for the independent reason that they
are precluded by the CSRA. The only plaintiffs that established subject-matter
jurisdiction are the seven contractor plaintiffs that have had their exemption requests
conclusively denied. The district court thus properly dismissed all other plaintiffs’
claims for lack of subject-matter jurisdiction.
A.
The Vast Majority Of Plaintiffs Face No Actual Or
Imminent Injury
1.
Article III of the Constitution limits the jurisdiction of federal courts to
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “A party invoking
federal jurisdiction has the burden of establishing that it has satisfied the ‘case-or-
controversy’ requirement of Article III.” D’Lil v. Best W. Encina Lodge & Suites, 538
F.3d 1031, 1036 (9th Cir. 2008).
Two closely related doctrines―standing and ripeness―enforce that case-or-
controversy limitation by “restrict[ing] the types of disputes that federal courts will
entertain.” Montana Envtl. Info. Ctr. v. Stone-Manning, 766 F.3d 1184, 1188 (9th Cir.
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2014). To establish the irreducible constitutional minimum of standing, “a plaintiff
must show (i) that he suffered an injury in fact that is concrete, particularized, and
actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that
the injury would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 141
S. Ct. 2190, 2203 (2021). Similarly, “[a] claim is not ripe for adjudication if it rests
upon contingent future events that may not occur as anticipated, or indeed may not
occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (quotation marks
omitted); see also Montana Envtl. Info., 766 F.3d at 1188 (“A dispute is ripe in the
constitutional sense if it present[s] concrete legal issues, presented in actual cases, not
abstractions.” (alteration in original) (quotation marks omitted)).
In practice, “the ripeness inquiry is often treated under the rubric of standing
and, in many cases, ripeness coincides squarely with standing’s injury in fact prong.”
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en
banc). “That is so because, if the contingent events do not occur, the plaintiff likely
will not have suffered an injury that is concrete and particularized enough to establish
the first element of standing.” Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir.
2009). Thus, the “Article III standing and ripeness issues” often “boil down to the
same question.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014)
(quotation marks omitted). “Whether … viewed as [a question] of standing or
ripeness, the Constitution mandates that prior” to the court’s exercise of jurisdiction
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“the issues presented are definite and concrete, not hypothetical or abstract.” Thomas,
220 F.3d at 1139 (quotation marks omitted).
2.
The federal employees failed to satisfy Article III’s case-or-controversy
requirement. All eight requested that DOE exempt them from the vaccination
requirement, and none claim that their requests have been conclusively resolved. See
2-ER-31 ¶ 20; 2-ER-42 ¶ 66; 2-ER-46 ¶ 81; 2-ER-51 ¶ 103; 2-ER-56 ¶ 127; 2-ER-67
¶ 181; 2-ER-88 ¶ 306; 2-ER-93 ¶ 325. While their exemption requests remain
pending, they are not required to be vaccinated and are not subject to discipline. See
Employee Guidance; 2-ER-30 ¶ 16 (alleging DOE “would commence enforcing its
COVID-19 vaccination policy … for unvaccinated Federal employees who haven’t
applied for an exemption” (emphasis added) (quotation marks omitted)). If their requests
are ultimately granted, they will not have to be vaccinated and will face no discipline
for that decision. Even if their exemption requests are denied, what discipline would
ultimately be imposed is as yet undetermined because the relevant guidance
recommends a progressive discipline procedure with multiple intervening steps before
potential removal from federal service. See Employee Guidance. The federal employees
thus face no “actual or imminent” threat of discipline or requirement to be
vaccinated. TransUnion LLC, 141 S. Ct. at 2203. Their claims “rest[] upon contingent
future events that may not occur as anticipated, or indeed may not occur at all.”
Texas, 523 U.S. at 300 (quotation marks omitted); see also Clapper v. Amnesty Int’l, USA,
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568 U.S. 398, 416 (2013) (explaining that “fears of hypothetical future harm that is not
certainly impending” do not satisfy Article III).
3.
Most of the contractor plaintiffs’ claims are similarly unfit for
adjudication. Their claims rest on the general assertion that they face the threat of
“imminent and wrongful termination,” 2-ER-28, but apart from a handful of
instances discussed more fully below, the Second Amended Complaint lacks any
plausible allegations to support that claim. Plaintiffs nowhere specify what steps their
employers have taken to implement the vaccination requirement or what disciplinary
action, if any, they will face for failing to comply with the requirement. Nor have
plaintiffs identified any “specific warning or threat” by the contractor employers “to
initiate [termination] proceedings” for non-compliance. Wolfson v. Brammer, 616 F.3d
1045, 1058 (9th Cir. 2010). To the contrary, several of the contractors “affirmatively
stated” that their employees “do not face imminent adverse employment action,” and
others “have not indicated they plan to initiate adverse employment action.” 2-ER-
151-52. The contractor plaintiffs thus have failed to show that they are “subject to a
genuine threat of imminent” harm sufficient to establish subject-matter jurisdiction.
Wolfson, 616 F.3d at 1058 (quotation marks omitted).
Nearly all the contractor plaintiffs also submitted exemption requests to their
employers. The OMB Determination obligates the contractor employers to “review
and consider” the requests to determine whether exemptions are required under
federal law. 86 Fed. Reg. at 63,420. The contractors here granted exemptions to
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more than 50 contractor plaintiffs. As the district court correctly concluded, those
plaintiffs “cannot allege any actual or imminent harm” because “they are in
compliance with the vaccine requirement[] and do not face any potential adverse
employment actions.” 1-ER-7-8. Plaintiffs suggest that the accommodations were
granted only for limited periods of time, see Opening Br. 20, but they make no
showing that the accommodations have since been revoked or that those plaintiffs
who received accommodations must now be vaccinated or else face discipline, cf.
Colwell v. Department of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009)
(“The burden of establishing ripeness and standing rests on the party asserting the
claim.”).5
The many contractor plaintiffs with pending exemption requests similarly face
no immediate threat of injury. They nowhere allege that while their requests are
pending, they are required to become vaccinated or will be subject to discipline. Like
the federal employees, these contractor plaintiffs need not become vaccinated if their
requests are granted. It is also unclear what, if any, disciplinary action they will face if
their requests are ultimately denied, as that decision is left to the contractor
employers. See 86 Fed. Reg. at 63,420. These contractor plaintiffs’ claims are thus

5 One contractor plaintiff had an accommodation revoked when he voluntarily
moved out of state. 2-ER-34-35 ¶ 37. That plaintiff’s self-inflicted harm cannot be
fairly traced to the Contractor EO. See Clapper, 568 U.S. at 416 (holding plaintiffs
“cannot manufacture standing merely by inflicting harm on themselves based on their
fears of hypothetical future harm that is not certainly impending”).

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“riddled with contingencies and speculation that impede judicial review.” Trump v.
New York, 141 S. Ct. 530, 535 (2020) (per curiam). And plaintiffs’ passing suggestion
(at 20) that speculation is unwarranted because some contractor employers have
denied a handful of exemption requests cannot be squared with the fact that many
more plaintiffs’ requests have been granted.
Many of the remaining contractor plaintiffs’ claims suffer similar jurisdictional
defects. Three face no threat of disciplinary action because they have complied with
the vaccination requirement. 1-ER-7-8. Although they raise objections to possible
future vaccination requirements, see 2-ER-44 ¶ 70; 2-ER-51 ¶ 104; 2-ER-66 ¶ 172,
such speculative “fears of hypothetical future harm that is not certainly impending”
cannot satisfy the concrete case-or-controversy requirement, Clapper, 568 U.S. at 416.
Three more have not yet requested exemptions. 2-ER-37 ¶ 46; 2-ER-66 ¶ 173; 2-ER-
74 ¶ 223. Their claims are unfit for judicial resolution because they can still seek
exemptions, meaning their asserted injuries “may not occur as anticipated, or indeed
may not occur at all,” Texas, 523 U.S. at 300 (quotation marks omitted); see Hodel v.
Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 297 (1981) (suggesting that
claims are “not ripe for judicial resolution” where “[t]here is no indication in the
record that [plaintiffs] have availed themselves of the opportunities provided by [a
statutory scheme] to obtain administrative relief by requesting either a variance … or a
waiver”). And a handful of contractor plaintiffs have provided insufficient
information to determine their employment, vaccination, or exemption statuses, see
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supra p. 13. As the district court explained, these plaintiffs failed to carry their burden
of showing a concreate case or controversy exists because “it is impossible to know
whether they could face an adverse employment action,” 1-ER-8, or “whose actions
[they] are challenging,” 1-ER-7.
Only seven contractor plaintiffs alleged that they suffered a concrete and
imminent threat of injury sufficient to establish subject-matter jurisdiction. All seven
have had their exemption requests conclusively denied and claim that they imminently
face, or have already faced, disciplinary action for their noncompliance with the
vaccination requirement. See 2-ER-40 ¶ 53; 2-ER-42 ¶ 65; 2-ER-43 ¶ 67; 2-ER-46
¶ 78; 2-ER-57 ¶ 130; 2-ER-65-66 ¶ 171; 2-ER-78-79 ¶ 251.
B.
The Federal Employees’ Claims Are Precluded By The Civil
Service Reform Act
The district court also lacked jurisdiction over the federal employees’ claims
because they are precluded by the CSRA. Although district courts typically “have
general federal question jurisdiction under 28 U.S.C. § 1331,” that grant of jurisdiction
“is not absolute.” Kerr v. Jewell, 836 F.3d 1048, 1058 (9th Cir. 2016). Congress may
“impliedly preclude[] district court jurisdiction” by “enact[ing] a statutory scheme of
administrative review.” Axon Enter., Inc. v. FTC, 986 F.3d 1173, 1178 (9th Cir. 2021),
cert. granted in part, 142 S. Ct. 895 (2022). In Thunder Basin Coal Co. v. Reich, 510 U.S.
200 (1994), the Supreme Court established the framework for determining whether
Congress “intended to preclude initial judicial review” in federal district court by
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channeling claims through a scheme of administrative review. Id. at 207. Courts must
ask whether Congress’s “intent is fairly discernible in the statutory scheme,” id.
(quotation marks omitted), and whether the “claims are of the type Congress intended
to be reviewed within [the] statutory structure,” id. at 212; see, e.g., Axon Enter., 986
F.3d at 1180-85 (applying framework).
The Supreme Court’s decision in Elgin v. Department of the Treasury, 567 U.S. 1
(2012), squarely resolves the first prong of the Thunder Basin inquiry here—that is,
whether it is “fairly discernible” that Congress meant for the CSRA “to preclude
initial judicial review” in district court, Thunder Basin, 510 U.S. at 207 (quotation marks
omitted). In Elgin, the Court explained that “employees to whom the CSRA grants
administrative and judicial review” may not sue except under the CSRA. 567 U.S. at
11 (emphasis omitted). And, as to “employees to whom the CSRA denies statutory
review,” the Court explained that “the CSRA’s elaborate framework demonstrates
Congress’ intent to entirely foreclose judicial review.” Id. (cleaned up). In other
words, the Court recognized that Congress meant to make the CSRA scheme
“exclusive.” Id. at 13; Kerr, 836 F.3d at 1058 (“[W]e have long held that the remedies
set forth in the CSRA are exclusive.”).
The second prong of the Thunder Basin inquiry is also satisfied here because
plaintiffs’ claims—at bottom, challenges to the discipline they potentially will face if
they refuse to comply with the Employee EO’s vaccination requirement—are “of the
type Congress intended to be reviewed within [the] statutory structure.” Thunder
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Basin, 510 U.S. at 212. In making that determination, courts consider whether
plaintiffs “can obtain meaningful judicial review” of their claims through the statutory
scheme, whether the claims are “‘wholly collateral’ to the statutory scheme,” and
whether the claims are “outside the … expertise” of the agency charged with initially
reviewing them under the statutory scheme. Axon Enter., 986 F.3d at 1181 (citing
Elgin, 567 U.S. at 15). Elgin—which concerned constitutional challenges brought by
federal employees to a requirement that they register for the draft, see 567 U.S. at 12—
confirms that all three factors point toward preclusion here. Here, as in Elgin,
requiring adherence to the CSRA framework would not foreclose meaningful judicial
review because the employees, after completing the administrative process, could
appeal an adverse MSPB decision to the Federal Circuit. See id. at 17. Here, as in
Elgin, the Federal Circuit is “fully competent to adjudicate” challenges to the statutory
requirement, including constitutional ones. Id. Here, as in Elgin, the employees’
claims are not “wholly collateral to the CSRA scheme” because they are “the vehicle
by which” plaintiffs seek to overcome “adverse employment action.” Id. at 22. And
here, as in Elgin, plaintiffs’ claims are within the MSPB’s expertise, including because
the MSPB’s resolution of “preliminary questions unique to the employment context”
could “obviate the need to address the constitutional challenge.” Id. at 22-23.
That DOE has yet to discipline the federal employees only underscores the
impropriety of their attempt to circumvent the CSRA framework. The CSRA
provides a mechanism for review of adverse employment actions once they have been
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“taken,” 5 U.S.C. § 7513(d), but it does not provide a mechanism for employees to
bring preemptive challenges to potential discipline.6 The absence of a mechanism in the
CSRA to bring such challenges means judicial review of them is “entirely
foreclose[d].” Elgin, 567 U.S. at 11. In Thunder Basin, for instance, the Court held that
a mine operator could not bring a pre-enforcement challenge to the Mine Act—even
where the Act was “facially silent with respect to pre-enforcement claims”—because
“[t]he Act’s comprehensive review process” allowed the operator to raise any
challenge in the context of an enforcement proceeding, 510 U.S. at 208-09, and it
would be inconsistent with the “statutory structure” to allow circumvention of that
process, id. at 213. The Court applied that same principle in Elgin, explaining not only
that “employees to whom the CSRA grants administrative and judicial review” must
proceed within the CSRA framework, but also that judicial review is “entirely
foreclose[d]” where “the CSRA denies statutory review.” 567 U.S. at 11 (emphasis
omitted); Kerr, 836 F.3d at 1058 (“[T]he comprehensive nature of the procedures and
remedies provided by the CSRA indicates a clear congressional intent to permit
federal court review as provided in the CSRA or not at all.” (quotation marks
omitted)).

6 There is a narrow exception not implicated here: Congress has authorized the
Office of Special Counsel to investigate whether a challenged “personnel action”— a
phrase defined broadly, see 5 U.S.C. § 2302(a)—constitutes a “prohibited personnel
practice,” id. §§ 1212(a)(2), 1214(a)(1)(A), and to petition the Board for corrective
action, id. § 1214(b)(2)(B)-(C).
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Permitting plaintiffs to file preemptive attacks on potential adverse
employment actions would make a hash of the CSRA’s carefully crafted remedial
scheme, including the distinction Congress specifically drew between the
administrative process available to employees against whom an adverse action has
merely been proposed and the judicial review available when the action has been
“taken,” 5 U.S.C. § 7513(d). It also “would reintroduce the very potential for
inconsistent decisionmaking and duplicative judicial review that the CSRA was
designed to avoid.” Elgin, 567 U.S. at 14. District courts would be left to deal with
preemptive challenges, while challenges to actual employment actions would continue
to arise under the CSRA’s scheme. Such bifurcated review would squarely contravene
“[t]he CSRA’s objective of creating an integrated scheme of review.” Id. Consistent
with those principles, the only two appellate courts to have addressed the issue have
held that the CSRA precludes district court review of preemptive challenges brought
by federal employees to the Employee EO, see Rydie v. Biden, 2022 WL 1153249, at *4-
8 (4th Cir. Apr. 19, 2022); Feds for Med. Freedom v. Biden, 30 F.4th 503, 511 (5th Cir.
2022), though the Fifth Circuit vacated the panel decision upon granting rehearing en
banc, which remains pending, see 37 F.4th 1093 (5th Cir. 2022) (per curiam).7

7 The government noted this limitation on the district court’s subject-matter
jurisdiction below, albeit late in the proceedings. See 2-ER-20. Anyway, challenges to
subject-matter jurisdiction may be raised at any point in the litigation. Fort Bend County
v. Davis, 139 S. Ct. 1843, 1849 (2019).
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II.
PLAINTIFFS’ CHALLENGES TO THE CONTRACTOR EXECUTIVE
ORDER ARE WITHOUT MERIT
The district court correctly dismissed the claims over which it had
jurisdiction―the challenges to the Contractor EO asserted by the seven contractor
plaintiffs who presented a concrete case or controversy―as without merit. On appeal,
plaintiffs frame their arguments as challenges to both the Contractor and Employee
EOs. But the district court held that it lacked jurisdiction to address any of the
federal employees’ claims and so did not address the merits of the Employee EO.
Even if this Court disagrees and concludes that it has jurisdiction over those claims, it
should decline to address those arguments in the first instance. See CoreCivic, Inc. v.
Candide Grp., LLC, 46 F.4th 1136, 1145-46 (9th Cir. 2022). As to the Contractor EO,
this Court should affirm the district court’s dismissal of the seven plaintiffs’
challenges.8
A.
Plaintiffs Failed To State A Claim For Violation Of The
Religious Freedom Restoration Act
The district court correctly dismissed plaintiffs’ RFRA claims.9 Plaintiffs
advance two theories as to how the federal defendants purportedly violated RFRA.

8 Because plaintiffs cannot succeed on the merits of their challenges, the district
court also correctly denied their request for preliminary injunctive relief. See Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Plaintiffs appeal of that decision
independently fails because plaintiffs do not contend that the district court abused its
discretion in weighing the equities, which, the court concluded, “tip[] heavily in
Defendants’ favor.” 2-ER-159.
9 Plaintiffs do not contest the district court’s dismissal of their First
Amendment claims.
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First, plaintiffs suggest that the Contractor EO violates RFRA on its face because it
“coerces” all covered contractor employees, including plaintiffs, “into either violating
their sincerely held religious beliefs or losing their livelihoods.” 2-ER-98; see Opening
Br. 5-6, 45. Second, they argue that their individual RFRA rights were violated when
their employers denied their exemption requests. See 2-ER-97-98; Opening Br. 19-20.
Neither of those theories is sufficient to state a claim under RFRA.
1.
Plaintiffs’ first theory fails as a matter of law. To bring a facial challenge,
plaintiffs must show that the government’s action is unlawful “in all of its
applications.” Willis v. City of Seattle, 943 F.3d 882, 886 (9th Cir. 2019). Plaintiffs
cannot show that the Contractor EO violates RFRA as to every contractor employee.
RFRA claims require an individualized inquiry into whether a given policy
substantially burdens a plaintiff’s sincere religious beliefs; if a plaintiff cannot meet
that substantial burden requirement, he cannot state a RFRA claim. See Navajo Nation
v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (en banc). Even if an
individual can show that a government policy substantially burdens his religious
exercise, moreover, there is no RFRA violation if the government can show that
applying the policy to that individual furthers a “compelling governmental interest”
and is implemented by “the least restrictive means.” Id. (quoting 42 U.S.C. § 2000bb-
1(b)). Because the Contractor EO may lawfully apply to contractors who cannot meet
RFRA’s substantial burden requirement or to whom the government has a compelling
interest in applying the policy, plaintiffs cannot show that the Contractor EO is
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unlawful in all applications. The Contractor EO and its implementing guidance also
recognize that contractor employers may “provide an accommodation to” the
vaccination requirement “because of a[n employee’s] sincerely held religious belief,
practice, or observance.” 86 Fed. Reg. at 63,420; see 86 Fed. Reg. at 50,985
(requirements apply “to the extent permitted by law”). Thus, far from “forcing”
covered contractor employees “to choose between their sincere religious beliefs and
their livelihoods,” contra Opening Br. 5, the Contractor EO offers a mechanism for
obtaining an “effective[] exempt[ion]” from the generally applicable vaccination
requirement on religious grounds, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 698
(2014).
2.
Plaintiffs’ challenges to the denial of their individual exemption requests
also fail. As the district court recognized, “[t]o assert a claim for violation of the
RFRA, Plaintiffs must establish a prima facie case by presenting evidence that the
activities they claim are burdened by Defendants’ action are an exercise of religion,
and that Defendants’ action substantially burdened their exercise of religion.” 1-ER-
13 (citing Navajo Nation, 535 F.3d at 1068). Plaintiffs, however, never identified “the
religious activities they were engaged in, or how those activities were substantially
burdened by” the Contractor EO. 1-ER-13. Instead, they alleged only that “they
applied for a religious exemption but were denied.” 1-ER-14. Such allegations, the
district court correctly concluded, “are akin to unadorned, the-defendant-unlawfully-
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harmed-me accusation[s],” which are insufficient to survive a motion to dismiss. 1-
ER-14 (alteration in original) (quotation marks omitted).
Plaintiffs do not dispute this analysis. Instead, they argue that the government
lacks a compelling interest in requiring vaccination and that vaccination is not the least
restrictive means of reducing disruption to government contracts. See Opening Br.
46-55. Even if that were true, but see infra pp. 44-48, “the government is not required
to prove a compelling interest for its action or that its action involves the least
restrictive means to achieve its purpose, unless the plaintiff first proves the
government action substantially burdens his exercise of religion,” Navajo Nation, 535
F.3d at 1069. Because plaintiffs have failed to satisfy that initial burden here, the
district court correctly dismissed their RFRA claims.10
B.
The Contractor Executive Order Is A Proper Exercise Of
Authority Under The Procurement Act
The district court was similarly correct to conclude that the Contractor EO is a
valid exercise of the President’s authority under the Procurement Act. See 1-ER-9; 2-
ER-154-56.11

10 As explained (supra p. 32) this Court should not address the merits of
plaintiffs’ RFRA challenge to the Employee EO. In any event, that challenge also
fails. The Employee EO, like the Contractor EO, establishes a religious exemption,
and none of the federal employees identifies how the EO substantially burdens their
exercise of religion or alleges that DOE has denied their exemption requests. See supra
p. 33-34.
11 Contrary to plaintiffs’ suggestion (at 6), the district court did not conclude
that the Employee EO is authorized under the Procurement Act. And the
Continued on next page.
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1.
The Procurement Act authorizes the President to “prescribe policies and
directives that the President considers necessary to carry out this subtitle.” 40 U.S.C.
§ 121(a). Section 101 of that subtitle, in turn, informs which policies “carry out” the
statute, stating that the Procurement Act’s “purpose … is to provide the Federal
Government with an economical and efficient system for,” among other things,
“[p]rocuring … property and nonpersonal services, and performing related functions
including contracting.” Id. § 101. That statement of purpose “is an appropriate guide
to the meaning of the statute’s operative provisions,” including § 121. Gundy v. United
States, 139 S. Ct. 2116, 2127 (2019) (plurality op.) (cleaned up). Together then, these
provisions make clear that the Procurement Act empowers the President to “prescribe
policies and directives that the President considers necessary” to “provide the Federal
Government with an economical and efficient system for … [p]rocuring … property
and nonpersonal services, and performing related functions including contracting.”
40 U.S.C. §§ 101, 121(a). That express grant of statutory authority permits the
President to issue, among others, orders that ensure that executive agencies contract
with contractors who will perform economically and efficiently.
2.
That textual interpretation of the Procurement Act is consistent with the
interpretation of the statute advanced by Presidents and upheld by courts of appeals
over many decades, without any concerns from Congress. Such an “early,

government has never argued that the Procurement Act is the source of authority for
the Employee EO. See 86 Fed. Reg. at 50,989.
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longstanding, and consistent interpretation” of a statute is “powerful evidence of [the
statute’s] original public meaning.” Kisor v. Wilkie, 139 S. Ct. 2400, 2426 (2019)
(Gorsuch, J., concurring in the judgment) (emphasis omitted).
a.
Presidents regularly have used their Procurement Act authority to issue
orders that ensure the government contracts with economical and efficient
contractors. In the first decades after the Procurement Act’s enactment, “the most
prominent use of the President’s authority under the [statute]” was “a series of anti-
discrimination requirements for Government contractors.” AFL-CIO v. Kahn, 618
F.2d 784, 790 (D.C. Cir. 1979) (en banc). Presidents Dwight D. Eisenhower, John F.
Kennedy, and Lyndon B. Johnson each issued orders forbidding contractors from
discriminating on the basis of race, creed, color, or national origin, id. at 790-91, 791
n.33 (citing orders)―all in an effort to prevent the federal government’s suppliers
from “increasing its costs and delaying its programs by excluding from the labor pool
available minority workmen,” Contractors Ass’n of E. Pa. v. Secretary of Labor, 442 F.2d
159, 170 (3d Cir. 1971).
More recently, Presidents have continued to exercise their Procurement Act
authority to impose contract requirements that they determined enhanced the
economy and efficiency of federal contractor operations. President George W. Bush,
for example, issued an order requiring federal contractors to use the E-Verify system
to verify the lawful immigration status of employees, reasoning that “[c]ontractors
that adopt rigorous employment eligibility confirmation policies are much less likely
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to face immigration enforcement actions” and thus are “generally more efficient and
dependable procurement sources.” Exec. Order No. 13,465, 73 Fed. Reg. 33,285,
33,285 (June 11, 2008). And President Barack Obama issued an order requiring
federal contractors to provide their employees with paid sick leave based on his
determination that doing so would “improve the health and performance of
employees of Federal contractors and bring benefits packages at Federal contractors
in line with model employers, ensuring that they remain competitive employers in the
search for dedicated and talented employees.” Exec. Order No. 13,706, 80 Fed. Reg.
54,697, 54,697 (Sept. 10, 2015).
b.
For decades, the courts of appeals have endorsed this view of the
Procurement Act as affording the President both “necessary flexibility and ‘broad-
ranging authority’” in setting procurement policies. UAW-Labor Emp’t & Training
Corp. v. Chao, 325 F.3d 360, 366 (D.C. Cir. 2003) (quoting Kahn, 618 F.2d at 789).
Courts have accordingly recognized that an order issued by the President is a proper
exercise of his Procurement Act authority if there exists a “sufficiently close nexus”
between the order and the statutory goals of economy and efficiency, Kahn, 618 F.2d
at 792, and the order is otherwise consistent with the law.
That standard is a “lenient” one, Chao, 325 F.3d at 367, and courts have
respected the President’s judgment that policies will enhance economy and efficiency
in federal procurement, including by ensuring the government contracts with efficient
and productive federal contractors. In Chao, for example, the D.C. Circuit upheld an
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order requiring government contractors to post notices of certain labor rights based
on President Bush’s judgment that “[w]hen workers are better informed of their
rights, … their productivity is enhanced” and that “[t]he availability of such a
workforce from which the United States may draw facilitates the efficient and
economical completion of its procurement contracts.” Id. at 366 (quoting Exec.
Order No. 13,201, 66 Fed. Reg. 11,221, 11,221 (Feb. 22, 2001)). Similarly, in Chamber
of Commerce v. Napolitano, 648 F. Supp. 2d 726 (D. Md. 2009), a district court upheld
President Bush’s order requiring federal contractors to use the E-Verify system based
on his judgment that contractors with “rigorous employment eligibility confirmation
policies” would be “more efficient and dependable procurement sources.” Id. at 738
(quoting 73 Fed. Reg. at 33,285). And courts have upheld antidiscrimination orders,
observing that they are not “so unrelated to the establishment of ‘an economical and
efficient system for … the procurement and supply’ of property and services that
[they] should be treated as issued without statutory authority.” Farkas v. Texas
Instrument, Inc., 375 F.2d 629, 632 n.1 (5th Cir. 1967) (ellipsis in original) (citation
omitted); see Contractors Ass’n, 442 F.2d at 170-71 (agreeing that antidiscrimination
orders were “authorized by the broad grant of procurement authority” because “the
federal government has a vital interest in assuring that the largest possible pool of
qualified manpower be available for the accomplishment of its projects” (emphasis
added)).
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c.
Congress has repeatedly revised the Procurement Act against the
background of this longstanding consensus among the courts of appeals, and it has
never modified or restricted the President’s power. See, e.g., Pub. L. No. 99-500, 100
Stat. 1783, 1783-345 (1986); Pub. L. No. 99-591, 100 Stat. 3341, 3341-345 (1986);
Pub. L. No. 104-208, 110 Stat. 3009, 3009-337 (1996). Indeed, Congress
recodified―without substantive change―both the Procurement Act’s statement of
purpose and the operative provision authorizing the President to set procurement
policies to achieve the statute’s goals. See Pub. L. No. 107-217, 116 Stat. 1062, 1063
(2002) (recodifying statement of purpose at 40 U.S.C. § 101); id. at 1068 (recodifying
grant of authority at 40 U.S.C. § 121(a)); id. at 1303 (“[T]his Act makes no substantive
change in existing law[] … .”). As this Court has emphasized, “Congress is presumed
to be aware of a[] … judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.” Chugach Mgmt. Servs. v.
Jetnil, 863 F.3d 1168, 1174 (9th Cir. 2017) (quotation marks omitted); see also Texas
Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 536 (2015)
(“If a word or phrase has been … given a uniform interpretation by inferior
courts …, a later version of that act perpetuating the wording is presumed to carry
forward that interpretation.” (ellipses in original) (quotation marks omitted)).
3.
Plaintiffs urge this Court to abandon this decades-old understanding of
the Procurement Act based on recent opinions in two other challenges to the
Contractor EO. See Opening Br. 9-10, 22-25, 29-31. Those opinions do not reflect
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binding merits holdings in their respective circuits and reflect a fundamental
misunderstanding of the statute.
In the first decision, a motions panel of the Sixth Circuit denied a stay pending
the appeal of an injunction against the Contractor EO. See Kentucky v. Biden, 23 F.4th
585 (6th Cir. 2022). The motions panel’s interlocutory order declared that the statute
does not permit the President to set standards governing the performance of
contractual agreements, concluding instead that the President’s authority is limited to
policies that “mak[e] the government’s entry into contracts less duplicative and
inefficient.” Id. at 605 (emphasis omitted).
Nothing in the Procurement Act’s text supports that restrictive reading. The
motions panel derived the limitation from the statute’s reference to the “system” for
procurement, which the panel defined as a “formal scheme or method of governing
organization.” Kentucky, 23 F.4th at 604 (quotation marks omitted). Even accepting
the stay panel’s novel theory that the word “system” restricts the permissible types of
presidential action, and even accepting the panel’s definition of that word, executive
orders that establish requirements to be implemented in federal contracts fall within
its scope. Just like the CEO of a private business, the President can establish an
efficient “scheme or method” for “contracting” for services only if he takes into
account factors affecting the performance of those service contracts, including the
availability and productivity of service providers. A “system” for procurement thus
includes appropriate measures to minimize the risks to the government that
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performance of contracts will be delayed or unforeseen costs incurred. And one
primary way to ensure that a “system” of procurement and contracting is “economical
and efficient” is to ensure that the system purchases services that are performed in a
cost-efficient and timely manner.
Plaintiffs also overread Georgia v. President of the United States, 46 F.4th 1283 (11th
Cir. 2022). In the fractured Georgia decision only one judge of a three-judge panel was
willing to say that the Contractor EO was unlawful (and another unequivocally said
the opposite). The majority of the panel agreed only that the “plaintiffs have a
reasonable chance to succeed on the merits in the case underlying this interlocutory
appeal.” Georgia, 46 F.4th at 1308 (Edmondson, J., concurring with Judge Grant in
the result). The lead opinion’s merits analysis, upon which plaintiffs rely (at 23-25), is
thus not binding even in the Eleventh Circuit.
That opinion’s analysis is also deeply flawed to the extent it suggests that the
Procurement Act authorizes only policies that help agencies carry out the specific
authority they are granted under the statute. As the partial dissent in that case
explains, the Procurement Act’s statement of purpose “is part of the subtitle
that § 121 gives the President the authority to carry out.” Georgia, 46 F.4th at 1311
(Anderson, J., concurring in part & dissenting in part). The statutory language thus
“clearly authorizes the President to prescribe such policies and directives that carry
out the purpose of the statute to ensure an ‘economical and efficient system for’
procurement,” which is precisely “what the President did here.” Id. at 1309 (quoting
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40 U.S.C. § 101). And contrary to the lead opinion’s suggestion, the Supreme Court
in Chrysler Corp. v. Brown, 441 U.S. 281 (1979) “expressly disavow[ed]” any requirement
that “delegated authority must always be tied to a specific statutory provision.”
Georgia, 46 F.4th at 1310 (Anderson, J., concurring in part & dissenting in part).
Contra Opening Br. 31. Indeed, in refusing “to decide whether” the executive order at
issue in that case “[wa]s authorized by” the Procurement Act, Chrysler, 441 U.S. at 304,
the Court emphasized that a “grant of legislative authority” need not be “specific
before [policies] promulgated pursuant to it can be binding,” id. at 308.
More recently, a divided panel of the Fifth Circuit upheld a preliminary
injunction enjoining enforcement of the Contract EO, but notably declined to adopt
the narrow constructions urged by the Sixth Circuit in Kentucky and the lead opinion
in Georgia. See Louisiana v. Biden, -- F.4th --, 2022 WL 17749291, *6-*8 (Dec. 19, 2022
5th Cir.). The court recognized that the Procurement Act’s “statutory text, … in fact,
places discernment explicitly in the President’s hands” regarding the orders the
President may prescribe to carry out the Act. Id. at *7 (citing 40 U.S.C. § 121(a)). The
court also rejected the notion that the “dicta from” Chrysler constituted “a narrowing
instruction for interpretation of the Procurement Act,” explaining that “this
interpretation is not supported by the rest of the footnote in question, let alone the
rest of the opinion.” Id. at *6 n.24.
The court nonetheless concluded that the Contractor EO’s scope exceeded the
President’s statutory authority based on“[t]he so-called ‘Major Question Doctrine,’”
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which in this case warranted “extra-statutory limitations on the President’s authority
under the Procurement Act.” Louisiana, 2022 WL 17749291, at *7-*8. For the
reasons discussed below, infra pp. 48-52, the court’s application of major-question
principles was mistaken. In any event, the decision provides no support to the
reading of the statute offered by plaintiffs here. See Louisiana, 2022 WL 17749291, at
*15 (Graves, J., dissenting) (explaining that the majority “recognizes that analyzing the
text of the statute could lend the President the power to issue the [Contractor EO]”).
C.
The Contractor Executive Order Reflects The Required
Nexus To Economy And Efficiency In Federal Procurement
1.
As the district court concluded, 2-ER-155, the Contractor EO “easily
satisfies the … requirement” that the order bear a nexus to the statutory objective of
“an economical and efficient system” for contracting and procurement, 40 U.S.C.
§ 101. The Contractor EO directs departments and agencies to include in certain new
or renewed contracts and solicitations a clause requiring contractors to provide
adequate COVID-19 safeguards to their workers. Those safeguards, the Contractor
EO explains, “will 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.” 86 Fed. Reg. at 50,985. Those efforts, in turn, help to
avoid schedule delays and reduced performance quality in critical federal contracts.
The safeguards also minimize the leave and health care costs that, in some contracts,
might be passed along to the federal government. By ensuring that the federal
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government is entering into contracts that will be performed efficiently—where the
services are delivered on time and at cost—the Contractor EO contributes directly to
establishing “an economical and efficient system,” 40 U.S.C. § 101, for “[p]rocuring
… property and nonpersonal services” and “performing related functions including
contracting,” id. § 101(1).12
2.
Plaintiffs acknowledge that courts, in conducting the nexus inquiry, have
recognized that the President is entitled to a “considerable degree of deference over
decisions to improve the ‘economy and efficiency’ of federal contracting.” Opening
Br. 25; see Opening Br. 32 (acknowledging that the Procurement Act vests “broad
discretion in the President” (quotation marks omitted)). Plaintiffs nevertheless
contend that the Contractor EO lacks the requisite nexus because it is not “required”
or “indispensable,” it purportedly “regulate[s] public health,” and it has “far-reaching
implications.” Opening Br. 25-28, 33-34. That reasoning suffers from several flaws.

12 The Acting OMB Director expanded on this rationale, explaining that
vaccination would decrease absenteeism by reducing transmission of the virus and
limiting serious illness in those who catch it. See 86 Fed. Reg. at 63,422. Although the
latest CDC Guidance suggests that aspects of the former justification related to the
reduction of transmission may carry reduced force with respect to vaccines and
COVID variants for which data on transmission and infection was available as of
September 2022, the latter justification remains highly relevant. See CDC, Benefits of
Getting a COVID-19 Vaccine, https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/vaccine-benefits.html (last updated Dec. 5, 2022); CDC, COVID-19
Vaccine Effectiveness Monthly Update, https://covid.cdc.gov/covid-data-
tracker/#vaccine-effectiveness (last updated Nov. 10, 2022). Contra Opening Br. 46-
53.
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First, the President need not demonstrate that an order is “required” or
“indispensable” to establish the requisite nexus to economy and efficiency in federal
procurement. Contra Opening Br. 33-34. The statute empowers the President to
enact policies that he “considers necessary” to carry out the statute’s goals. 40 U.S.C.
§ 121(a) (emphasis added). And the courts that upheld previous orders never
concluded that it was “essential” to require contractors to abide by antidiscrimination
requirements, to use the E-Verify system, or to post notices of labor rights in their
offices. See supra pp. 38-39.
Second, in suggesting that the Contractor EO is impermissible because it affects
public health, plaintiffs misperceive the nature of both the order and the President’s
authority under the Procurement Act.
The Contractor EO is directed at federal procurement. It sets the terms under
which executive departments and agencies should acquire services by setting criteria
for the contractors eligible to bid on certain federal contracts. Those criteria, in turn,
promote the safety and efficiency of the workplaces where the services being
procured by the federal government will be performed. The Contractor EO operates
solely by altering the government’s negotiating position to include these requirements
in voluntary commercial agreements.
That the Contractor EO also protects the health and safety of citizens does not
make its economy-and-efficiency rationale pretextual. Contra Opening Br. 26. Orders
under the Procurement Act and related statutes have often had effects in addition to
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the promotion of economy and efficiency. For example, in American Federation of
Government Employees v. Carmen, 669 F.2d 815 (D.C. Cir. 1981) (R.B. Ginsburg, J.), the
D.C. Circuit observed that the order sustained in Kahn—which had the principal
purpose of lowering the government’s procurement costs by requiring adherence to
price and wage guidelines—had the “additional goal of slowing inflation in the
economy as a whole.” Id. at 821 (citing Kahn, 618 F.2d at 792-93). Much the same
was true of the antidiscrimination requirements, addressed in cases like Contractors
Ass’n, which had the “additional goal of promoting enhanced employment
opportunities for minorities.” Id. (citing Contractors Ass’n, 442 F.2d at 171). As these
courts have emphasized, the President’s determination of how best to achieve
economy and efficiency in federal operations does not “become[] illegitimate,” simply
because it “serves other, not impermissible, ends” Carmen, 669 F.2d at 821. That is
particularly true where, as here, the other end―i.e., the protection of contractor
employees from serious illness―directly affects the economy and efficiency of the
federal procurement system.
Third, plaintiffs are wrong to predict that sustaining the Contractor EO―a
measure that addresses acute threats posed by an unprecedented pandemic―will
permit the President to issue any order that improves the general health or
productivity of contractor employees. Contra Opening Br. 1-2, 30; cf. Louisiana, 2022
WL 17749291, at *10-*11 (raising similarly misguided concerns).
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The government has always acknowledged that presidential authority under the
Procurement Act is constrained by the statute’s text, which requires that any executive
order bear a close nexus to the statutory goals of establishing “an economical and
efficient system” for federal procurement and contracting. 40 U.S.C. § 101. The
President’s status as “the most singularly accountable elected official in the country,”
Feds for Med. Freedom v. Biden, 25 F.4th 354, 357 (5th Cir. 2022) (Higginson, J.,
dissenting), also serves as a check on extreme actions that would offend the popular
will. And, like any market participant, the President, as CEO of the Executive
Branch, has a strong interest in doing business with qualified contractors. The
President thus has additional incentives not to impose conditions that do not promote
efficiency and that contractors might view as unacceptable. See Louisiana, 2022 WL
17749291, at *16 (Graves, J., dissenting) (“If the company does not want to abide by
the clauses of the government contract, the government is not forcing companies to
contract with it.”). These limits have proven effective: In the Procurement Act’s
seven decades of existence, no President has issued the far-fetched orders plaintiffs
posit. Cf. Louisiana, 2022 WL 17749291, at *10 (theorizing similarly outlandish
orders).
D.
No Other Considerations Cast Doubt On The Validity Of
The Contractor Executive Order
No other considerations support invalidating the Contractor EO.
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1.
Plaintiffs argue that major-question principles required Congress to speak
more clearly if it intended to authorize the Contractor EO. Opening Br. 29-31, 34-35.
The court of appeals in Louisiana similarly held the Contractor EO invalid based on the
“extra-statutory limitations” imposed by the “so-called ‘Major Question Doctrine.’”
2022 WL 17749291, at *7-*8. Those principles, however, are implicated only when an
agency action threatens a “transformative expansion in … regulatory authority,” West
Virginia v. EPA, 142 S. Ct. 2587, 2610 (2022) (quoting Utility Air Regulatory Grp. v. EPA,
573 U.S. 302, 324 (2014)). No such expansion occurred here.
The Contractor EO does not exercise “regulatory authority” at all. Instead, it is
an exercise of the federal government’s proprietary authority, as the purchaser of
services from federal contractors, and one that applies only to those workplaces where
work on federal contracts is taking place. As the Supreme Court recognized 80 years
ago, “[l]ike private individuals and businesses, the Government enjoys the unrestricted
power … to determine those with whom it will deal[] and to fix the terms and
conditions upon which it will make needed purchases.” Perkins v. Lukens Steel Co., 310
U.S. 113, 127 (1940). The Contractor EO thus does not regulate employers generally
(or even federal contractors generally because it does not reach workplaces that are
unrelated to federal contracting work), cf. Louisiana, 2022 WL 17749291 at *9; instead,
it reflects a management decision to insist on, from companies that elect to do
business with the federal government, contract terms that reflect the same type of
requirements that private sector employers impose on their employees. See Georgia, 46
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F.4th at 1311 (Anderson, J., concurring in part & dissenting in part) (observing that
“[t]he President in this case is acting in the role of a proprietor—not in the role of a
regulator” and that “the proprietary role of the government here is significant”);
Louisiana, 2022 WL 17749291, at *15 (Graves, J., dissenting) (same).
The contract conditions addressed by the Contractor EO thus stand on a very
different footing from the COVID-19 vaccination-or-testing standard promulgated by
the Occupational Safety and Health Administration (OSHA), upon which plaintiffs
focus (at 29-30). See National Fed’n of Indep. Bus. v. Department of Labor, OSHA, 142 S.
Ct. 661, 663 (2022) (per curiam) (concluding that the plaintiffs were likely to succeed
on the merits of their challenge to OSHA’s standard). The standard there, like the
rules in the other cases plaintiffs cite, directly regulated employers pursuant to
authority granted by Congress under the Commerce Clause. See id. at 662-63; see also
West Virginia, 142 S. Ct. at 2612 (evaluating rule that regulated greenhouse gas
emissions from power plants); Alabama Ass’n of Realtors v. Department of Health &
Human Servs., 141 S. Ct. 2485, 2486 (2021) (per curiam) (evaluating eviction
moratorium imposed on “all residential properties nationwide”); Utility Air, 573 U.S.
at 324 (evaluating whether agency had authority to regulate greenhouse gas emissions
from new motor vehicles); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
159-60 (2000) (evaluating whether agency had authority to regulate cigarettes and
smokeless tobacco).
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In contrast, the Procurement Act is an exercise of Congress’s powers under
distinct constitutional provisions, including the Spending Clause, and the Contractor
EO invokes only the President’s power to impose conditions in workplaces involved
in performing federal contracts. When the government acts “in its capacity ‘as
proprietor’” and “manager of its ‘internal operation,’” it “has a much freer hand” than
when it “exercise[s] its sovereign power ‘to regulate.’” NASA v. Nelson, 562 U.S. 134,
148 (2011). That is why when the government―for the first time in history―exercised
its spending power to impose a vaccination requirement on recipients of Medicare
and Medicaid, the Supreme Court declined to require an authorization more specific
than definitional provisions which authorized the Secretary to impose conditions he
“finds necessary in the interest of … health and safety.” Biden v. Missouri, 142 S. Ct.
647, 652 (2022) (per curiam) (quoting 42 U.S.C. § 1395x(e)(9)).
The cases cited by plaintiffs, moreover, reflect concerns about diminished
accountability and thus suggest a need for special clarity only when there is some
doubt as to whether Congress “assign[ed]” a significant decision “to an agency.”
Utility Air, 573 U.S. at 324 (quoting Brown & Williamson Tobacco Corp., 529 U.S. at 160),
quoted in Alabama Ass’n of Realtors, 141 S. Ct. at 2489; see West Virginia, 142 S. Ct. at
2609 (considering whether “Congress would have been likely to delegate such power
to the agency at issue” (cleaned up)). Those considerations are also inapplicable here.
The Procurement Act clearly assigns the President the authority to determine what
policies are necessary to carry out the statute’s economy and efficiency goals. And
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there is no risk of diminished accountability, as the President is “the most singularly
accountable elected official in the country,” Feds for Med. Freedom, 25 F.4th at 357
(Higginson, J., dissenting), and has inherent power to direct operations of the
Executive Branch, Building & Constr. Trades Dep’t v. Allbaugh, 295 F.3d 28, 32 (D.C.
Cir. 2002).
That inherent authority forms the backdrop against which Congress legislated
in delegating authority to the President. When the President is acting in an area
“where he enjoys his own inherent Article II powers,” Congress can “assign the
President broad authority” without raising constitutional concerns. Gundy, 139 S. Ct.
at 2144 (Gorsuch, J., dissenting). Thus, courts for decades have upheld Procurement
Act orders involving issues of great economic and political significance―like inflation,
discrimination, energy, and immigration―without demanding special clarity from
Congress. See Contractors Ass’n, 442 F.2d at 170-71 (1960s discrimination); Kahn, 618
F.2d at 790-91, 790 n.32 (1970s inflation); Carmen, 669 F.2d at 817-23 (1979 oil crisis);
Chamber of Commerce, 648 F. Supp. 2d at 738 (2000s immigration policy).13
2.
The Contractor EO also does not intrude on an area that is traditionally
reserved to the States. Contra Opening Br. 4-5, 35, 40-41. Federal contracts are not
an area traditionally reserved to the States. Courts, including this one, have repeatedly

13 Accordingly, the Fifth Circuit erred in concluding that there is no basis for
applying major-question principles differently in the context of presidential exercises
of authority. Louisiana, 2022 WL 17749291 at *9-*10 & n.40.
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held that “federal contractors cannot be required to satisfy state ‘“qualifications in
addition to those that the [Federal] Government has pronounced sufficient.”’” United
States v. Virginia, 139 F.3d 984, 990 (4th Cir. 1998) (alteration in original) (quoting
Leslie Miller, Inc. v. Arkansas, 352 U.S. 187, 190 (1956) (per curiam)); see also GEO Grp.,
Inc. v. Newsom, 50 F.4th 745, 750 (9th Cir. 2022) (en banc) (invalidating state law that
“purport[ed] to override the federal government’s decisions about who will carry out
federal functions”); Gartrell Constr. Inc. v. Aubry, 940 F.2d 437, 441 (9th Cir. 1991)
(invalidating state licensing requirements imposed on federal contractors).
The President’s exercise of Procurement Act authority does not invade state
sovereignty simply because “in addition to promoting economy and efficiency,” it may
also protect the health and safety of some Arizona citizens. Carmen, 669 F.2d at 821.
Courts have routinely upheld under the Procurement Act executive orders that
advance non-economic policy interests—preventing workplace discrimination,
deterring illegal immigration, and so on—as well as promote economy and efficiency
in federal procurement. See supra pp. 38-39. And Presidents have previously exercised
Procurement Act authority in ways that affect areas traditionally regulated by States,
like public health. See, e.g., 80 Fed. Reg. at 54,697. Effects on public health and safety
do not render impermissible an otherwise valid exercise of federal contracting
authority. Cf. Boeing Co. v. Movassaghi, 768 F.3d 832, 840 (9th Cir. 2014) (invalidating
state hazardous waste law aimed at protecting “public health and safety” because it
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“regulate[d] not only the federal contractor but the effective terms of federal contract
itself”).
E.
The OMB Determination Does Not Suffer From Procedural
Deficiencies
The district court also correctly dismissed plaintiffs’ procedural challenges to
the OMB Determination. The APA’s notice-and-comment requirements do not
apply to “matter[s] relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts.” 5 U.S.C. § 553(a)(2). The OMB Determination
plainly fails within that exemption, and plaintiffs do not contend otherwise. Instead,
plaintiffs argue that the OMB Determination violated the Procurement Policy Act’s
procedural requirements. But the OMB Determination is not subject to those
requirements either, and the Acting OMB Director voluntarily complied with them in
any event.14
1.
The Procurement Policy Act’s requirements apply only to specifically
enumerated “executive agenc[ies].” 41 U.S.C. § 1707(c); see Brnovich v. Biden, 562 F.
Supp. 3d 123, 158 (D. Ariz. 2022). The Acting OMB Director, however, was not
acting as an “executive agency” when she issued the OMB Determination. Instead,
she was exercising authority delegated to her by the President under 3 U.S.C. § 301.

14 Plaintiffs’ procedural claims fail to the extent they are challenges to the
Contractor EO because plaintiffs cannot assert claims against the President under the
APA. See Opening Br. 37; 1-ER-10-11 (citing Franklin v. Massachusetts, 505 U.S. 788,
800 (1992)). The President similarly is not subject to the Procurement Policy Act,
which applies only to “executive agenc[ies].” 41 U.S.C. § 1707(c)(1); see infra p. 55.
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See 86 Fed. Reg. at 50,985-86. When an agency exercises presidentially delegated
authority, it “stands in the President’s shoes,” acting not as the agency, but as the
President. Natural Res. Def. Council, Inc. v. U.S. Dep’t of State, 658 F. Supp. 2d 105, 109
& n.5, 111 (D.D.C. 2009); see also Detroit Int’l Bridge Co. v. Government of Canada, 189 F.
Supp. 3d 85, 100 (D.D.C. 2016) (collecting cases “conclud[ing] that an agency’s action
on behalf of the President, involving discretionary authority committed to the
President, is ‘presidential’”), aff’d, 875 F.3d 1132 (D.C. Cir. 2017), aff’d, 883 F.3d 895
(D.C. Cir. 2018). Because the President is not listed among the executive agencies
subject to § 1707’s requirements, see 41 U.S.C. § 133, the Acting OMB Director also
was not subject to those requirements when she exercised the delegated authority to
issue the OMB Determination.
In any event, this Court need not determine the applicability of the
Procurement Policy Act because the Acting OMB Director voluntarily complied with
§ 1707. The statute provides that “a procurement policy, regulation, procedure, or
form” ordinarily “may not take effect until 60 days after it is published for public
comment in the Federal Register.” 41 U.S.C. § 1707(a)(1). Those requirements “may
be waived,” however, “if urgent and compelling circumstances make
compliance … impracticable.” Id. § 1707(d). The Acting OMB Director correctly
invoked that exception here, explaining that waiving § 1707’s notice requirements was
critical for several reasons. 86 Fed. Reg. at 63,423-24; see Brnovich, 562 F. Supp. 3d at
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158 (concluding that Acting OMB Director “properly invoked the § 1707(d) waiver
provision”); Kentucky v. Biden, 571 F. Supp. 3d 715, 732 (E.D. Ky. 2021) (similar).15
The Acting OMB Director explained that the “broader economy-and-efficiency
purpose” of the OMB Determination “would be severely undermined by the
minimum delay” required under § 1707’s notice-and-comment provisions. 86 Fed.
Reg. at 63,424. An important purpose of the guidance was to “align[] the vaccination
deadline for Federal contractors with the vaccination deadline for private companies
under” other federal standards. Id. The Acting OMB Director described how certain
employers could have workers or workplaces subject to different vaccination
requirements. See id. For those employers, having the same deadline across all
requirements would “promote consistency and administrability” of the requirements
and “eliminate potential confusion and frustration that disparate deadlines could
produce.” Id.
That OMB could have completed a 60-day comment period before the January
18 vaccination deadline does not undermine the Acting OMB Director’s
determination. Contra Opening Br. 36-37. The Acting OMB Director explained that
if the OMB Determination underwent the requisite comment period, it could not

15 There is no basis for concluding, as plaintiffs suggest (at 35), that the “urgent
and compelling circumstances” standard is “more demanding than the APA’s ‘good
cause’ exception.” The authority plaintiffs invoke for that proposition does not cite
§ 1707, let alone opine on its standard. See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93
(D.C. Cir. 2012).
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have become effective until January 9, 2022, at the earliest―five days after the deadline
for covered contractor employees to receive their final COVID-19 vaccination dose
(January 4, 2022) and a little more than one week before contractors were expected to
have a fully vaccinated work force (January 18, 2022). See 86 Fed. Reg. at 63,424. In
other words, “absent an immediately effective determination of [the] deadline,”
contractors would not have known whether, at the conclusion of the 60-day comment
period, they would be facing an imminent vaccination deadline or, as a result of the
comment process, a delayed deadline. Id. Given the many weeks required to meet a
vaccination deadline, contractors would have struggled to determine how to remain
compliant. Id.; see Kentucky, 571 F. Supp. 3d at 732 (explaining that the compliance
date was set “to benefit federal contractors and ensure that they would have sufficient
time to comply with the mandate”).
Nor does the President’s purported delay in issuing the Contractor EO and
accompanying guidance suggest that circumstances were not “urgent” or
“compelling.” Contra Opening Br. 39-40. The President issued the order in
September 2021, shortly after vaccines became both widely available among adults
and particularly necessary given the emergence of the Delta variant and the return to
work of many federal contractor employees. See 86 Fed. Reg. at 63,423. OMB made
an initial economy-and-efficiency determination later that same month as soon as the
relevant task force issued initial guidance. See 86 Fed. Reg. 53,692 (Sept. 28, 2021).
When the task force updated its guidance a few weeks later, OMB issued a revised
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determination that comprehensively examined the emerging data on the effectiveness
of vaccines, assessed the experience of private employers in imposing vaccination
requirements, and concluded that a vaccination requirement would promote
economy-and-efficiency in federal contracting.
III.
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DECLINING TO AFFORD PLAINTIFFS LEAVE TO AMEND
The district court acted well within its discretion in denying plaintiffs leave to
amend their complaint. See 1-ER-14-15. In assessing whether to grant leave to
amend, courts consider whether “the plaintiff has previously amended the complaint,”
whether the plaintiff acted in “bad faith,” and whether amendment would be “futile.”
United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011).
Those factors support the district court’s decision to deny plaintiffs’ leave to
amend. As the district court recognized, plaintiffs here already had amended their
complaint twice. See 1-ER-14. In preparing their amended complaints, plaintiffs had
the benefit of the district court’s ruling on their request for a temporary restraining
order as well as the federal government’s two motions to dismiss. Plaintiffs
nonetheless failed to “adequately address[] all of the factual and procedural
deficiencies” in their amended complaint and never identified any additional facts they
could allege to cure those deficiencies. 1-ER-14-15. Accordingly, the district court
reasonably concluded that “[p]laintiffs’ continued failures to address the shortcomings
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in their various pleadings demonstrate[d] a third opportunity to amend would be
futile.” 1-ER-15.
CONCLUSION
This Court should affirm the district court’s judgment.
Respectfully submitted,

BRIAN M. BOYNTON
Principal Deputy Assistant Attorney
General
VANESSA R. WALDREF
United States Attorney
MARK B. STERN
ANNA O. MOHAN
s/ David L. Peters
DAVID L. PETERS
Attorneys, Appellate Staff
Civil Division, Room 7209
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 514-1673

December 2022
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STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, appellees state that they know of two
related cases challenging Executive Order 14,402 pending in this Court: Brnovich v.
Biden, No. 22-15518, and Cano v. Biden, No. 22-56094.

s/ David L. Peters

David L. Peters

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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limit of Federal Rule of Appellate
Procedure 32(a)(7)(B) because it contains 13,934 words. This brief also complies with
the typeface and type-style requirements of Federal Rule of Appellate Procedure
32(a)(5)-(6) because it was prepared using Microsoft Word 2016 in Garamond 14-
point font, a proportionally spaced typeface.

s/ David L. Peters

David L. Peters

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CERTIFICATE OF SERVICE
I hereby certify that on December 23, 2022, I electronically filed the foregoing
brief with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.

s/ David L. Peters

David L. Peters

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ADDENDUM
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TABLE OF CONTENTS
40 U.S.C. § 101 .................................................................................................................. Add.1
40 U.S.C. § 121 .................................................................................................................. Add.1

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Add.1

40 U.S.C. § 101
§ 101. Purpose
The purpose of this subtitle is to provide the Federal Government with an
economical and efficient system for the following activities:
(1) Procuring and supplying property and nonpersonal services, and performing
related functions including contracting, inspection, storage, issue, setting
specifications, identification and classification, transportation and traffic management,
establishment of pools or systems for transportation of Government personnel and
property by motor vehicle within specific areas, management of public utility services,
repairing and converting, establishment of inventory levels, establishment of forms
and procedures, and representation before federal and state regulatory bodies.
(2) Using available property.
(3) Disposing of surplus property.
(4) Records management.
40 U.S.C. § 121
§ 121. Administrative
(a) Policies prescribed by the President.--The President may prescribe policies and
directives that the President considers necessary to carry out this subtitle. The policies
must be consistent with this subtitle.
(b) Accounting principles and standards.--
(1) Prescription.--The Comptroller General, after considering the needs and
requirements of executive agencies, shall prescribe principles and standards of
accounting for property.
(2) Property accounting systems.--The Comptroller General shall cooperate with
the Administrator of General Services and with executive agencies in the
development of property accounting systems and approve the systems when they
are adequate and in conformity with prescribed principles and standards.
(3) Compliance review.--From time to time the Comptroller General shall
examine the property accounting systems established by executive agencies to
determine the extent of compliance with prescribed principles and standards and
approved systems. The Comptroller General shall report to Congress any failure
to comply with the principles and standards or to adequately account for property.
(c) Regulations by Administrator.--
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Add.2

(1) General authority.--The Administrator may prescribe regulations to carry out
this subtitle.
(2) Required regulations and orders.--The Administrator shall prescribe
regulations that the Administrator considers necessary to carry out the
Administrator's functions under this subtitle and the head of each executive
agency shall issue orders and directives that the agency head considers necessary
to carry out the regulations.
(d) Delegation of authority by Administrator.--
(1) In general.--Except as provided in paragraph (2), the Administrator may
delegate authority conferred on the Administrator by this subtitle to an official in
the General Services Administration or to the head of another federal agency. The
Administrator may authorize successive redelegation of authority conferred by
this subtitle.

(2) Exceptions.--The Administrator may not delegate--
(A) the authority to prescribe regulations on matters of policy applying to
executive agencies;
(B) the authority to transfer functions and related allocated amounts from one
component of the Administration to another under paragraphs (1)(C) and (
2)(A) of subsection (e); or
(C) other authority for which delegation is prohibited by this subtitle.
(3) Retention and use of rental payments.--A department or agency to which the
Administrator has delegated authority to operate, maintain or repair a building or
facility under this subsection shall retain the portion of the rental payment that the
Administrator determines is available to operate, maintain or repair the building or
facility. The department or agency shall directly expend the retained amounts to
operate, maintain, or repair the building or facility. Any amounts retained under
this paragraph shall remain available until expended for these purposes.
(e) Assignment of functions by Administrator.--
(1) In general.--The Administrator may provide for the performance of a function
assigned under this subtitle by any of the following methods:
(A) The Administrator may direct the Administration to perform the function.
(B) The Administrator may designate or establish a component of the
Administration and direct the component to perform the function.
(C) The Administrator may transfer the function from one component of the
Administration to another.
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(D) The Administrator may direct an executive agency to perform the function
for itself, with the consent of the agency or by direction of the President.
(E) The Administrator may direct one executive agency to perform the
function for another executive agency, with the consent of the agencies
concerned or by direction of the President.
(F) The Administrator may provide for performance of a function by a
combination of the methods described in this paragraph.

(2) Transfer of resources.--
(A) Within Administration.--If the Administrator transfers a function from one
component of the Administration to another, the Administrator may also
provide for the transfer of appropriate allocated amounts from the component
that previously carried out the function to the component being directed to
carry out the function. A transfer under this subparagraph must be reported to
the Director of the Office of Management and Budget.
(B) Between agencies.--If the Administrator transfers a function from one
executive agency to another (including a transfer to or from the
Administration), the Administrator may also provide for the transfer of
appropriate personnel, records, property, and allocated amounts from the
executive agency that previously carried out the function to the executive
agency being directed to carry out the function. A transfer under this
subparagraph is subject to approval by the Director.
(f) Advisory committees.--The Administrator may establish advisory committees to
provide advice on any function of the Administrator under this subtitle. Members of
the advisory committees shall serve without compensation but are entitled to
transportation and not more than $25 a day instead of expenses under section 5703 of
title 5.
(g) Consultation with federal agencies.--The Administrator shall advise and consult
with interested federal agencies and seek their advice and assistance to accomplish the
purposes of this subtitle.
(h) Administering oaths.--In carrying out investigative duties, an officer or employee
of the Administration, if authorized by the Administrator, may administer an oath to
an individual.

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Brief for Appellees (Government) — Donovan v. Biden (9th Cir.)

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