Georgia Sdga 1 21 Cv 00163 11Th 21 14269 Doc 114 Att 0

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United States Court Of Appeals, For The Eleventh Circuit · No. 1:21-cv-00163-RSB-BKE · Doc. 114 · 2022-08-30 · Docket on CourtListener

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[PUBLISH] 
 
In the 
 
United States Court of Appeals 
 
For the Eleventh Circuit 
 
 
____________________ 
No. 21-14269 
____________________ 
 
STATE OF GEORGIA,  
STATE OF ALABAMA,  
STATE OF IDAHO,  
STATE OF KANSAS,  
STATE OF SOUTH CAROLINA, et al., 
 Plaintiffs-Appellees, 
versus 
PRESIDENT OF THE UNITED STATES,  
SAFER FEDERAL WORKFORCE TASK FORCE,  
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,  
DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT AND 
CO-CHAIR  
SAFER FEDERAL WORKFORCE TASK FORCE,  
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Opinion of the Court 
21-14269 
OFFICE OF MANAGEMENT AND BUDGET, et al., 
 
 Defendants-Appellants. 
 
____________________ 
Appeal from the United States District Court 
for the Southern District of Georgia 
D.C. Docket No. 1:21-cv-00163-RSB-BKE 
____________________ 
 
Before GRANT, ANDERSON, and EDMONDSON, Circuit Judges. 
GRANT, Circuit Judge: 
Executive Order 14042 directs executive agencies to include 
a clause in procurement agreements requiring federal contractors 
to comply with workplace safety rules designed to respond to the 
Covid-19 pandemic.  We consider one of those requirements here: 
a mandate that employees who work on or in connection with a 
covered contract, or share a workplace with another employee 
who does, be fully vaccinated against Covid-19. 
In this lawsuit—one of many brought across the country to 
challenge the contractor vaccine mandate—the district court en-
tered a nationwide preliminary injunction after concluding that the 
plaintiffs were likely to prevail on their assertion that the mandate 
was outside the scope of the Procurement Act.  The court ordered 
the federal government not to enforce the mandate in any covered 
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3 
agreement.  We agree that the plaintiffs’ challenge to the mandate 
will likely succeed and that they are entitled to preliminary relief.  
Even so, because the injunction’s nationwide scope is too broad, 
we vacate it in part. 
I. 
A. 
When Congress passed the Procurement Act (also called the 
Federal Property and Administrative Services Act) in 1949, it pref-
aced the new statute with a declaration of policy: “It is the intent 
of the Congress in enacting this legislation to provide for the Gov-
ernment an economical and efficient system” for “the procurement 
and supply of personal property and nonpersonal services.”  Fed-
eral Property and Administrative Services Act of 1949, Pub. L. No. 
81-152, § 2, 63 Stat. 377, 378.  That purpose statement, with mod-
ernized language, is now found in § 101 of Title 40.  See 40 U.S.C. 
§ 101 (“The purpose of this subtitle is to provide the Federal Gov-
ernment with an economical and efficient system” for activities in-
cluding “[p]rocuring and supplying property and nonpersonal ser-
vices, and performing related functions.”). 
In line with that purpose, the Procurement Act constructed 
an administrative apparatus for the federal government’s procure-
ment system.  At the head of that system is the President.  The Act 
authorizes the President, in the key provision here, to “prescribe 
policies and directives that the President considers necessary to 
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carry out this subtitle,” and directs that the “policies must be con-
sistent with this subtitle.”  Id. § 121(a). 
The phrase “this subtitle,” in turn, covers two (lengthy) por-
tions of the United States Code: subtitle I of Title 40, and most of 
Title 41, subtitle I, division C.  Id. § 111(4).  The Title 40 subtitle, 
among other things, creates the General Services Administration 
and empowers its Administrator to “procure and supply personal 
property and nonpersonal services for executive agencies to use in 
the proper discharge of their responsibilities.”  Id. §§ 301, 
501(b)(1)(A).  With authority echoing that of the President, the 
GSA Administrator can also “prescribe regulations to carry out this 
subtitle.”  Id. § 121(c)(1).  The Title 41 division vests executive 
agencies with the authority to “make purchases and contracts for 
property and services” consistent with the “implementing regula-
tions” of the GSA Administrator.  41 U.S.C. § 3101(a). 
Title 41 also specifies parameters that executive agencies 
must follow when exercising their procurement authority.  To 
begin, it generally requires agencies to use “competitive proce-
dures” to “obtain full and open competition.”  Id. § 3301(a).  And it 
stipulates that “a fair proportion of the total purchases and con-
tracts for property and services” be “placed with small business 
concerns.”  Id. § 3104.  These provisions and others like them fulfill 
the Act’s stated purpose of providing “an economical and efficient 
system” for federal procurement.  40 U.S.C. § 101. 
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B. 
The federal government contends that the Procurement Act 
empowers the President to issue the contractor vaccine mandate.  
The mandate started with Executive Order 14042, which instructs 
executive agencies that contracts and solicitations generally must 
include a clause requiring compliance with “workplace safety guid-
ance” published by the Safer Federal Workforce Task Force.1  Exec. 
Order No. 14042, § 2, 86 Fed. Reg. 50,985, 50,985 (Sept. 9, 2021).  
Several categories of procurement agreements fall within that Or-
der’s sweep—those for services, construction, concessions, and 
property leases, as well as those made “in connection with Federal 
property or lands and related to offering services for Federal em-
ployees, their dependents, or the general public.”2  Id. § 5(a).  The 
Order did not stop with new contracts and solicitations; it also cov-
ered extensions and renewals of existing contracts and stipulated 
 
1 The Order also extends to subcontractors “at any tier.”  Exec. Order No. 
14042, § 2(a), 86 Fed. Reg. 50,985, 50,985 (Sept. 9, 2021).  To simplify, we use 
the term “contractors” to cover both contractors and subcontractors.  And we 
use the term “contracts” to encompass what the Order calls “contract-like in-
struments.”  Id. 
2 The Order does not apply to “grants,” “agreements with Indian Tribes under 
the Indian Self-Determination and Education Assistance Act,” “contracts or 
subcontracts whose value is equal to or less than the simplified acquisition 
threshold” (which is now set at $250,000 for most contracts), “employees who 
perform work outside the United States or its outlying areas,” and “subcon-
tracts solely for the provision of products.”  Exec. Order No. 14042, § 5(b), 86 
Fed. Reg. at 50,986–87; FAR 2.101 (2021). 
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that agencies were “strongly encouraged” to add the same require-
ments into existing contracts as well.  Id. §§ 5(a), 6(c). 
Task Force guidance followed after President Biden signed 
Executive Order 14042.  It requires “COVID-19 vaccination of cov-
ered contractor employees, except in limited circumstances where 
an employee is legally entitled to an accommodation.”3  Safer Fed-
eral Workforce Task Force, COVID-19 Workplace Safety: Guid-
ance for Federal Contractors and Subcontractors 1, 5 (Sept. 24, 
2021).  This vaccine requirement applies to employees working “on 
or in connection with a covered contract”; it also applies to those 
who share their workplace.  Id. at 3–4. 
The Acting Director of the Office of Management and 
Budget soon determined that the vaccine requirement would im-
prove “economy and efficiency” in federal contracting, which 
made it binding.  86 Fed. Reg. 53,691, 53,691–92 (Sept. 24, 2021); 86 
Fed. Reg. 63,418, 63,423 (Nov. 10, 2021); see Exec. Order No. 
14042, § 2(c), 86 Fed. Reg. at 50,985–86.  Together, Executive Order 
14042 and the rules and determinations that implement it comprise 
the “contractor vaccine mandate” that is the subject of this lawsuit. 
 
3 The Task Force guidance also mandates compliance with masking and phys-
ical distancing requirements, which were not subject to the district court’s or-
der below and are not at issue on appeal.  See Safer Federal Workforce Task 
Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and 
Subcontractors 1, 6–7 (Sept. 24, 2021).   
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C. 
In October 2021, the district court docketed a complaint filed 
by seven States—Georgia, Alabama, Idaho, Kansas, South Caro-
lina, Utah, and West Virginia—against the federal government, in-
cluding President Biden and various executive officials and agen-
cies.  The States sought a declaration that the contractor vaccine 
mandate was unlawful and an injunction prohibiting its enforce-
ment.  A construction-industry trade organization, Associated 
Builders and Contractors, successfully moved to intervene as a 
plaintiff.   
Considering the request for a preliminary injunction, the 
court found that the plaintiff States, as well as members of the trade 
association, “routinely” entered into contracts that would include 
the vaccine mandate, had “current contracts that could easily fall 
under” the new requirements, and “would typically continue to 
seek out contract opportunities with the federal government.”  In 
other words, the court found that the mandate would apply to the 
plaintiffs.  It then agreed with them that the mandate likely ex-
ceeded the President’s authority under the Procurement Act.  After 
deciding that the other equitable factors—irreparable harm, the 
balance of the equities, and the public interest—also favored the 
plaintiffs, the court entered a nationwide preliminary injunction.   
This lawsuit was one of many concerning the contractor 
vaccine mandate in district courts around the nation.  Though 
other district courts also granted plaintiffs’ requests for preliminary 
injunctive relief, the court below was the only one to enjoin the 
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defendants from enforcing the mandate nationwide— that is, “in all 
covered contracts in any state or territory of the United States of 
America.”4   
The federal government now appeals, challenging both the 
merits of the preliminary injunction and its scope. 
II. 
We review the district court’s “ultimate decision” to grant a 
preliminary injunction for abuse of discretion.  Teper v. Miller, 82 
F.3d 989, 993 (11th Cir. 1996).  To earn that form of relief, the mov-
ing party must show that “(1) it has a substantial likelihood of suc-
cess on the merits; (2) it will suffer an irreparable injury unless the 
injunction is granted; (3) the harm from the threatened injury out-
weighs the harm the injunction would cause the opposing party; 
and (4) the injunction would not be adverse to the public interest.”  
Gonzalez v. Governor of Georgia, 978 F.3d 1266, 1270–71 (11th 
Cir. 2020) (footnote omitted).  When the government is the 
 
4 See Missouri v. Biden, 576 F. Supp. 3d 622, 635 (E.D. Mo. 2021) (enjoining 
enforcement against plaintiff States Missouri, Nebraska, Alaska, Arkansas, 
Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyo-
ming); Louisiana v. Biden, 575 F. Supp. 3d 680, 695–96 (W.D. La. 2021) (en-
joining enforcement against plaintiff States Louisiana, Mississippi, and Indiana, 
and their agencies); Kentucky v. Biden, 571 F. Supp. 3d 715, 735 (E.D. Ky. 2021) 
(enjoining enforcement in “all covered contracts in Kentucky, Ohio, and Ten-
nessee”).  In Florida v. Nelson, 576 F. Supp. 3d 1017 (M.D. Fla. 2021), currently 
pending on appeal in this Circuit, the district court entered a preliminary in-
junction enjoining the defendants from enforcing the mandate in Florida.   
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opposing party, as it is here, the third and fourth factors merge.  Id. 
at 1271. 
The plaintiffs’ likelihood of success in this case “turns on a 
preliminary question”—the scope of authority that Congress dele-
gated through the Procurement Act.  Jysk Bed’N Linen v. Dutta-
Roy, 810 F.3d 767, 774 (11th Cir. 2015).  To answer that question, 
we must interpret the Act de novo.  Teper, 82 F.3d at 993 (“The 
interpretation and application of a federal statute raises an issue of 
law, subject to plenary review.”); see also, e.g., Trump v. Hawaii, 
138 S. Ct. 2392, 2407–15, 2423 (2018) (analyzing the scope of presi-
dential authority under the Immigration and Nationality Act when 
reviewing a preliminary injunction).  As for the other equitable fac-
tors, “the abuse-of-discretion standard allows a range of choices for 
the district court, so long as any choice made by the court does not 
constitute a clear error of judgment.”  Wreal, LLC v. Amazon.com, 
Inc., 840 F.3d 1244, 1247 (11th Cir. 2016) (quotation omitted). 
We likewise review the scope of any injunction for abuse of 
discretion.  See Garrido v. Dudek, 731 F.3d 1152, 1158 (11th Cir. 
2013).  It is “well- settled that a district court abuses its discretion 
when it grants relief that is improperly or even unnecessarily 
broad.”  Am. Fed’n of State, Cnty. & Mun. Emps. Council 79 v. 
Scott, 717 F.3d 851, 870 (11th Cir. 2013). 
III. 
We first consider the plaintiffs’ likelihood of success on the 
merits.  The central question is whether the Procurement Act 
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authorizes the President to require the employees of federal con-
tractors to be vaccinated as a condition of all procurement con-
tracts and solicitations. 
A. 
Nearly a decade before Congress passed the Procurement 
Act, the Supreme Court explained that the federal government has 
the “power to produce its own supplies, 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).5  But that authority rests in Congress’s hands 
in the first instance—not the President’s.  See id. at 130.  So the 
question is not whether Congress could authorize the President to 
make procurement agreements contingent on Covid-19 vaccina-
tion.  It is whether Congress did so in the Procurement Act. 
Before the Act was passed in 1949, no centralized agency or-
ganized the procurement activities of the federal government.  Ob-
vious problems emerged from that diffusion of authority.  Recog-
nizing those problems, Congress created the Hoover Commission 
and tasked it with studying Executive Branch structures with an 
eye toward improving their efficiency.  See Commission on 
 
5 We have long since departed from Perkins’s holding that procurement deci-
sions cannot be judicially reviewed due to bidders’ lack of standing, but the 
propositions for which the case is cited above hold true.  Perkins, 310 U.S. at 
129; see Hayes Int’l Corp. v. McLucas, 509 F.2d 247, 254–56 (5th Cir. 1975). 
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Organization of the Executive Branch of the Government, Con-
cluding Report 2 (1949). 
Once the Commission was in place it indeed observed 
“shocking instances of wasteful practices and poor business man-
agement” in the government’s supply operations.  Id. at 22.  The 
federal procurement process, it found, suffered “from a lack of cen-
tral direction.”  Commission on Organization of the Executive 
Branch of the Government, Office of General Services 1 (1949).  To 
address that failing, the Commission proposed a new agency, 
which would coordinate purchasing and other “housekeeping” ac-
tivities “to avoid waste.”  Id. at 1–2.  According to the Commission, 
the new agency’s director should be appointed by the President and 
subject to his direction; this point was consistent with its overall 
strategy of achieving efficiency through executive accountability 
and centralized authority.  Id. at 2–3; see also Commission on Or-
ganization of the Executive Branch of the Government, Conclud-
ing Report 5–11, 25 (1949).  Even so, the Commission suggested 
that individual agencies should remain responsible for purchasing 
goods and services specific to their needs, thus avoiding the “con-
gestion, red tape, and inefficiency” that may result from “too high 
a degree of centralization.”  Commission on Organization of the 
Executive Branch of the Government, Office of General Services 2 
(1949). 
Congress listened.  In line with the Hoover Commission’s 
recommendations, the Procurement Act consolidated several pro-
curement-related agencies into the newly created General Services 
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Administration.  Federal Property and Administrative Services Act 
of 1949 §§ 102–05.  As the Commission had envisioned, the statute 
vested supervisory authority in the President.  But the Procure-
ment Act’s delegation to the President was not unlimited; the Act 
confers broad but not unbounded authority. 
“The President may prescribe policies and directives that the 
President considers necessary to carry out this subtitle.  The poli-
cies must be consistent with this subtitle.”  40 U.S.C. § 121(a).  Two 
stipulations jump off the page.  The first is that the President’s pol-
icies and directives must “carry out this subtitle.”  Id.  As a re-
minder, “this subtitle” includes subtitle I of Title 40 (over one hun-
dred code sections) and much of division C of subtitle I of Title 41 
(over seventy more).  Id. §§ 111(4), 121(a).  A delegation to carry 
out those provisions does not grant the President free- wheeling au-
thority to issue any order he wishes relating to the federal govern-
ment’s procurement system.  What he can lawfully carry out under 
§ 121(a) are the provisions in a specified part of the U.S. Code.  That 
set of provisions is lengthy, and in combination quite specific in set-
ting out the procurement-related authority of the GSA Administra-
tor, executive agencies, and other officials.  So § 121(a) generally 
grants the President the power to instruct those actors on how to 
exercise their statutory authority. 
Consistent with the solution offered by the Hoover Com-
mission, the statutory power to direct the various federal stake-
holders within the federal procurement system to coordinate their 
work is a key lever for the President—and the President has used 
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it.  See, e.g., Exec. Order No. 13538, §§ 1–2, 75 Fed. Reg. 20,895, 
20,895 (April 19, 2010) (establishing the President’s Management 
Advisory Board to provide advice on business practices); Exec. Or-
der No. 13327, § 4, 69 Fed. Reg. 5897, 5898 (Feb. 4, 2004) (creating 
a Federal Real Property Council to develop agency asset manage-
ment plans); Exec. Order No. 12979, § 1, 60 Fed. Reg. 55,171, 
55,171 (Oct. 25, 1995) (directing agency heads to prescribe proce-
dures for the resolution of bid protests).  But that oversight author-
ity is also a limit; in contrast with the few Procurement Act provi-
sions granting the President direct authority to take action, here 
the President is given the power to instruct other actors to exercise 
their own statutory authority.  See, e.g., 40 U.S.C. §§ 1303(b)(1), 
1307, 1310(a) (declaration of surplus real property and disposition 
of securities and war supplies). 
The second constraint on the President’s authority is the re-
quirement that his policies be “consistent with this subtitle.”  Id. 
§ 121(a).  That limitation is straightforward enough.  The President 
must stay within the confines of the Act, of course; but his actions 
must also be consistent with the policies and directives that Con-
gress included in the statute.  Those explicit legislative policies, as 
we have described, include the rule that agencies must “obtain full 
and open competition” through most procurement procedures.  
See, e.g., 41 U.S.C. §§ 3301(a), 3306. 
The statute’s history reinforces that we should read these 
two provisions as cabining the President’s authority.  Section 121(a) 
took its present form in 2002, when Congress recodified Title 40.  
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See Act of August 21, 2002, Pub. L. No. 107-217, 116 Stat. 1062.  
Before then, the provision stated that the President “may prescribe 
such policies and directives, not inconsistent with the provisions of 
this Act, as he shall deem necessary to effectuate the provisions of 
this Act, which policies and directives shall govern the Administra-
tor and executive agencies in carrying out their respective func-
tions hereunder.”  40 U.S.C. § 486(a) (2001) (emphases added).6  
When Congress edited the language in the recodified version, it 
emphasized that those revisions made “no substantive change.”  
Act of August 21, 2002 § 5(b).  The substance of the current lan-
guage thus holds the same meaning as the earlier version: the Pres-
ident can issue policies to assist and direct the GSA Administrator 
and other executive actors as they carry out their authority under 
the Act.  But the President cannot issue policies that require those 
officials to take steps outside the Act or contrary to the Act—how-
ever useful such steps may appear. 
This reading also aligns with an early treatment of the Pro-
curement Act by the Supreme Court.  Decades ago, in Chrysler 
Corp. v. Brown, the Court suggested that the President’s authority 
should be based on a “specific reference” within the Act.  441 U.S. 
281, 304 n.34 (1979).  Though the Court identified other potential 
sources of statutory authority for the order it was considering—an 
executive order prohibiting employment discrimination by federal 
 
6 That is the same language that Congress originally enacted in 1949.  See Fed-
eral Property and Administrative Services Act of 1949 § 205. 
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contractors—it doubted that the Procurement Act on its own del-
egated sufficient authority.7  The Court, noting that § 121(a) (then 
codified at § 486(a)) “explicitly authorizes Executive Orders neces-
sary to effectuate its provisions,” added that “nowhere in the Act is 
there a specific reference to employment discrimination.”  Id.  
(quotation and brackets omitted).  The Supreme Court ultimately 
did not decide whether any statute authorized the executive order, 
but suggested that the Procurement Act alone was not enough to 
carry the day.  See id. at 304–06.  Chrysler thus points to interpret-
ing the Act as a limited grant of authority, empowering the Presi-
dent to carry out the Act’s specific provisions—but not more.  For 
whatever reason, Chrysler has received scant attention from the 
lower courts, but we do not see ourselves at liberty to disregard it. 
In sum, the Procurement Act gives the President the author-
ity to direct subordinate executive actors as they carry out its spe-
cific provisions; directing them to go beyond the statute’s bounda-
ries would neither “carry out” the Act nor be “consistent with” it.  
40 U.S.C. § 121(a).  A presidential directive can stand only if those 
subordinate officials have the statutory authority that they are told 
to exercise. 
 
7 The other statutes were Titles VI and VII of the Civil Rights Act of 1964 and 
the Equal Employment Opportunity Act of 1972.  See Chrysler, 441 U.S. at 
304–06. 
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B. 
That background leads us to the question here: whether Ex-
ecutive Order 14042 directs subordinates to carry out their own 
lawful statutory authority, or whether the Order instead exceeds 
the limitations imposed by the Procurement Act’s text.  The Or-
der’s core directive is aimed at all executive agencies.  See Exec. 
Order No. 14042, § 2(a), 86 Fed. Reg. at 50,985.  To assess whether 
the Procurement Act gives the President authority to issue that di-
rective, we ask whether the Act gives those agencies the authority 
to insert a clause into all of their procurement contracts and solici-
tations requiring contractors’ employees to be vaccinated against 
Covid- 19. 
Again, Chrysler’s analysis is instructive.  After questioning 
the statutory basis for the antidiscrimination executive order itself, 
the Supreme Court went on to address whether agency regulations 
requiring contractors to disclose information about their affirma-
tive-action programs were statutorily authorized.  See Chrysler, 
441 U.S. at 304–06.  The “pertinent inquiry,” the Court explained, 
was whether the agency action was “reasonably within the con-
templation” of any “statutory grants of authority” relied on by the 
regulating agency.  Id. at 306 (emphasis omitted). 
The answer was no: the Court determined that when Con-
gress enacted the statutes the government invoked in support of 
the order’s disclosure policies—including the Procurement Act—it 
was “not concerned with public disclosure of trade secrets or con-
fidential business information.”  Id.  The Court thus could not “find 
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in these statutes a delegation of the disclosure authority asserted.”  
Id. 
Our review of the Procurement Act leads us to the same an-
swer here.  Nothing in the Act contemplates that every executive 
agency can base every procurement decision on the health of the 
contracting workforce.  Instead, the statutory scheme establishes a 
framework through which agencies can articulate specific, output-
related standards to ensure that acquisitions have the features they 
want. 
Our analysis is also informed by a well- established principle 
of statutory interpretation: we “expect Congress to speak clearly 
when authorizing an agency to exercise powers of vast economic 
and political significance.”  Alabama Ass’n of Realtors v. Dep’t of 
Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (quotations 
omitted).  That doctrine has been applied in “all corners of the ad-
ministrative state,” and this case presents no exception.  West Vir-
ginia v. EPA, 142 S. Ct. 2587, 2608 (2022).  As the Supreme Court 
has emphasized, requiring widespread Covid-19 vaccination is “no 
everyday exercise of federal power.”  Nat’l Fed’n of Indep. Bus. v. 
Occupational Safety & Health Admin., 142 S. Ct. 661, 665 (2022) 
(quotation omitted).  Including a Covid- 19 vaccination require-
ment in every contract and solicitation, across broad procurement 
categories, requires “clear congressional authorization.”  West Vir-
ginia, 142 S. Ct. at 2609 (quotation omitted). 
A deeper dive into the statutory parameters for contracting 
proves the point—the “highly consequential power” asserted here 
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lies “beyond what Congress could reasonably be understood to 
have granted.”  Id.  The general grant of procurement power to 
executive agencies is in division C of subtitle I of Title 41.  There, 
§ 3101(a) states that agencies “shall make purchases and contracts 
for property and services in accordance with this division and im-
plementing regulations of the Administrator of General Services.”  
41 U.S.C. § 3101(a).  Following that broad provision, the division 
lays down specific rules on how agencies are to solicit bids and 
award contracts. 
When an agency solicits a procurement agreement for prop-
erty or services, it must “specify its needs” and “develop specifica-
tions in the manner necessary to obtain full and open competition 
with due regard to the nature of the property or services to be ac-
quired.”  Id. § 3306(a)(1).  Those specifications may be stated in 
terms of “function, so that a variety of products or services may 
qualify”; “performance, including specifications of the range of ac-
ceptable characteristics or of the minimum acceptable standards”; 
or “design requirements.”  Id. § 3306(a)(3).  Once the solicitation is 
issued and bids are submitted, an agency must award the contract 
“based solely on the factors specified in the solicitation.”  Id. 
§ 3701(a). 
As for architectural and engineering contracts, agency heads 
are tasked with selecting the “most highly qualified firm” based on 
“statements of qualifications and performance data.”  40 U.S.C. 
§§ 1103– 04; see also 41 U.S.C. § 3309(a).  Alternatively, an agency 
can use a two-phase selection process that incorporates a list of 
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requirements for the project, “which may include criteria and pre-
liminary design, budget parameters, and schedule or delivery re-
quirements.”  41 U.S.C. § 3309(a), (c).  The agency first evaluates 
proposals based on “specialized experience and technical compe-
tence, capability to perform, past performance of the offeror’s 
team” (as well as “other appropriate factors”) and then moves on 
to “technical proposals and cost or price information.”  Id. 
§ 3309(c). 
These details are dry.  But they show what the Procurement 
Act is all about—creating an “economical and efficient system” for 
federal contracting.  40 U.S.C. § 101.  That is worlds away from 
conferring general authority for every agency to insert a term in 
every solicitation and every contract establishing health standards 
for contractors’ employees.  To be sure, contract terms sometimes 
lead to changes in contractors’ internal operations.  But agencies 
procuring property or services may “include restrictive provisions 
or conditions only to the extent necessary to satisfy the needs of 
the executive agency or as authorized by law.”  Id. § 3306(a)(2)(B).  
An all-encompassing vaccine requirement is different in nature 
than the sort of project- specific restrictions contemplated by the 
Act.  Like other enabling legislation, this statute is not an “open 
book” to which contracting agencies may “add pages and change 
the plot line.”  West Virginia, 142 S. Ct. at 2609 (quotations omit-
ted). 
Indeed, imposing more criteria than necessary works against 
the Act’s oft-repeated priority of achieving “full and open 
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competition” in the procurement process.  41 U.S.C. § 3301; see 
also, e.g., id. §§ 3306(a)(1), 3903(b)(2)(B).  Every requirement that 
an agency adds to a solicitation renders any party that cannot sat-
isfy it “ineligible to enter into a contract.”  See id. § 3306(f)(3)(A).  
Unnecessary specifications limit the pool of eligible bidders and ex-
clude contractors who are otherwise capable of meeting an 
agency’s needs.  That is why, in the ordinary course, prospective 
bidders can challenge specifications as “unduly restrictive of com-
petition.”  See, e.g., Savantage Fin. Servs., Inc. v. United States, 150 
Fed. Cl. 307, 316 (2020); Chas. H. Tompkins Co. v. United States, 
43 Fed. Cl. 716, 723 (1999).  We cannot say that when Congress 
passed the Procurement Act, it meant to delegate authority to set 
baseline health and safety qualifications for contractors—standards 
that would apply regardless of the specific needs in a given project.  
See West Virginia, 142 S. Ct. at 2607–08. 
Other statutes setting out procurement rules show that 
when Congress wants to further a particular economic or social 
policy among federal contractors through the procurement pro-
cess—beyond full and open competition—it enacts explicit legisla-
tion.  For example, the Service Contract Act of 1965 directs con-
tractors for services to pay their employees the federal minimum 
wage, and the Clean Air Act Amendments of 1970 prevent the gov-
ernment from contracting with any company that has criminally 
violated air pollution standards.  See 41 U.S.C. § 6704; 42 U.S.C. 
§§ 7413(c), 7606.  Congress has also passed legislation to respond to 
significant supply-chain risks; the SECURE Technology Act of 
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2018, for instance, allows federal agencies to refuse to contract with 
firms that fail to meet certain cybersecurity qualifications.  See 41 
U.S.C. § 4713.  And for some procurement categories, Congress has 
passed laws prohibiting contract performance in working condi-
tions that endanger employee “health” and “safety.”  Id. § 6502(4) 
(contracts for materials, supplies, articles, and equipment exceed-
ing $10,000); id. § 6703(3) (services contracts covered by the Service 
Contract Act). 
Here, in contrast, no statutory provision contemplates the 
power to implement an across-the-board vaccination mandate.8  It 
follows that the President likely exceeded his authority under the 
Procurement Act when directing executive agencies to enforce 
such a mandate. 
C. 
The federal government advocates for a broader interpreta-
tion of the President’s authority under the Procurement Act.  The 
President, it says, can “prescribe policies and directives that he con-
siders necessary to ensure an economical and efficient system for 
 
8 Respectfully, the partial dissent’s conclusion that Congress likely envisioned 
vaccination requirements because polio was a grave danger at the time that 
the Procurement Act was passed, and vaccine technology was in its early 
stages, seems incorrect.  See Partial Dissent at 18–19.  Indeed, these circum-
stances seem to point in the opposite direction—given public awareness of the 
risks of disease and the health measures that may be taken in response, we 
would expect Congress to include relevant language in the Procurement Act 
if it wished to grant the authority to require vaccination. 
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procurement and contracting.”  Under this approach, the argument 
goes, the contractor vaccine mandate falls well within the Act’s ex-
pansive grant of authority because “ensuring that federal contrac-
tor performance is more efficient in turn enhances the economy 
and efficiency of the overall federal procurement system.”   
It may well be that if the statute required only a perceived 
connection to efficiency benefits, the mandate would stand up 
nicely.  After all, Covid-19 has caused absenteeism issues over the 
last few years throughout the economy, and it is at least arguable 
that increasing vaccination would cut lost workdays for contractors 
in a way that would make the procurement process more efficient. 
The problem is that the statute does not offer the breadth of 
authority that the federal government asserts.  Its proposed reading 
rests on an upside-down view of the statutory scheme—that Con-
gress has granted the President complete authority to control the 
federal contracting process in a way he thinks is economical and 
efficient, subject only to certain statutory limitations.  The statute’s 
language does not support this reading.9 
Any text-based attempt to support the federal government’s 
expansive interpretation requires reading the Act’s purpose provi-
sion as a grant of authority.  As the government emphasizes, § 101 
 
9 The federal government has disclaimed reliance on any authority beyond the 
Procurement Act.  In its opening brief, the government states that “the Exec-
utive Order is framed solely as an exercise of power given by the Procurement 
Act.”   
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of the Act states that the “purpose of this subtitle is to provide the 
Federal Government with an economical and efficient system” for 
activities relating to procurement.  40 U.S.C. § 101.  That purpose 
provision, the federal government argues, should be read together 
with the grant of authority to the President in § 121(a) so that it 
“authorizes the President to ‘prescribe policies and directives’ to 
ensure ‘an economical and efficient system’ for federal contract-
ing.”  (quoting 40 U.S.C. §§ 101, 121(a)). 
Not so.  An executive order cannot rest merely on the “pol-
icy objectives of the Act.”  Indep. Meat Packers Ass’n v. Butz, 526 
F.2d 228, 235 (8th Cir. 1975).  Statements of purpose are “in reality 
as well as in name not part of the congressionally legislated or pri-
vately created set of rights and duties.”  Antonin Scalia & Bryan A. 
Garner, Reading Law: The Interpretation of Legal Texts 217 (2012).  
More to the point, “an expansive purpose in the preamble cannot 
add to the specific dispositions of the operative text.”  Id. at 219.  
Although purpose statements can “shed light on the meaning of 
the operative provisions that follow,” they “cannot give words and 
phrases of the dispositive text itself a meaning that they cannot 
bear.”  Id. at 218; see Sturgeon v. Frost, 139 S. Ct. 1066, 1086 (2019). 
The federal government’s purpose-based reading of the 
President’s statutory authority defies these principles.  It also con-
travenes the text of § 121(a).  That provision does not give the Pres-
ident authority to “carry out” the purpose of the statute.  It dele-
gates the power to “carry out this subtitle,” which contains a com-
pilation of contracting rules for the General Services 
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Administration and other executive agencies.  40 U.S.C. § 121(a) 
(emphasis added).  And according to its own terms, the purpose 
statement is not an operative component of the subtitle—it offers 
the “purpose” animating the operative provisions.  Id. § 101.  So 
while it tells us that Congress crafted the Procurement Act to pro-
mote economy and efficiency in federal contracting, the purpose 
statement does not authorize the President to supplement the stat-
ute with any administrative move that may advance that purpose.  
The partial dissent erroneously equates the federal government’s 
approach with the one taken in Gundy v. United States.  139 S. Ct. 
2116, 2126–27 (2019).  There, the plurality used the purpose state-
ment to clarify the limits on a broad statutory grant of authority.  
Here, the government asks us to do the opposite—treat the pur-
pose statement itself as a source of authority so that we can ignore 
the limitations within the operative text.  See id.; Partial Dissent at 
7.   
Looking for firmer footing than the statute’s text, the federal 
government encourages us to rely on a line of cases out of the D.C. 
Circuit, beginning with AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 
1979) (en banc).  There, the en banc court analyzed whether the 
Procurement Act authorized the President to issue an executive or-
der requiring that contractors comply with wage and price stand-
ards.  Id. at 787, 792–93.  The court said yes; it determined that the 
Act granted the President “particularly direct and broad-ranging 
authority over those larger administrative and management issues 
that involve the Government as a whole.”  Id. at 789.  It added that 
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the President should use that power “to achieve a flexible manage-
ment system capable of making sophisticated judgments in pursuit 
of economy and efficiency.”  Id.  An executive order based on this 
statutory delegation, the court explained, “must accord with the 
values of ‘economy’ and ‘efficiency.’”  Id. at 792.  And because there 
was a “sufficiently close nexus between those criteria” and the pro-
curement program established by the executive order at issue, the 
court said the program was authorized.  Id. 
Though Kahn has since been read in some quarters as a blue-
print for near- limitless executive procurement authority, it need 
not be.  Indeed, that decision warns that the Procurement Act does 
not give the President a “blank check” for him “to fill in at his will.”  
Id. at 793.  And it cautions that the President must still exercise the 
procurement power “consistently with the structure and purposes 
of the statute.”  Id.  What’s more, two concurrences separately em-
phasized how narrow the majority holding was.  One explained 
that the court’s opinion “does not allow the President to exercise 
powers that reach beyond the Act’s express provisions,” while an-
other highlighted that “nothing in the court’s opinion intimates 
any views on the validity of other Executive Orders.”  Id. at 797 
(Tamm, J., concurring); id. at 796–97 (Bazelon, J., concurring).  
These opinions do not read as a mandate to accept Procurement 
Act mandates.10 
 
10 The Fourth Circuit, for its part, has treated Kahn’s “nexus” test as a limiting 
standard rather than an expansion, one that prohibits the connection between 
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Even so, following Kahn, the D.C. Circuit has endorsed a 
much more expansive interpretation, one that allows the President 
to issue any procurement directive that has a close enough “nexus” 
to economy and efficiency.  See UAW-Lab. Emp. & Training Corp. 
v. Chao, 325 F.3d 360, 366–67 (D.C. Cir. 2003).  But treating econ-
omy and efficiency as the only content defining the President’s pro-
curement power works the same result as embedding the purpose 
statement of § 101 into the operative delegation of § 121(a)— an un-
tenable approach. 
The D.C. Circuit, however, has done just that.  For example, 
in Chamber of Commerce v. Reich, that court stated that the Pres-
ident has “authority to pursue efficient and economic procure-
ment.”  74 F.3d 1322, 1333 (D.C. Cir. 1996) (quotation omitted).  
Likewise, in American Federation of Government Employees, 
AFL-CIO v. Carmen, the court wrote that the Act is “effectuated if 
the executive action in question assists the Government in obtain-
ing an economical and efficient system” for “the utilization of avail-
able property.”  669 F.2d 815, 821 (D.C. Cir. 1981) (quotations and 
brackets omitted).  The “nexus” test is so “lenient,” in the D.C. Cir-
cuit’s own estimation, that an executive order can stand even if 
there is “a rather obvious case that the order might in fact increase 
 
“procurement costs” and the executive order’s “social objectives” from being 
“too attenuated.”  Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164, 170–72 (4th 
Cir. 1981). 
 
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procurement costs” rather than contributing to economy and effi-
ciency.  Chao, 325 F.3d at 366–67. 
We disagree with this purpose-based approach, detached as 
it is from the Act’s remaining text and structure.  The purpose the 
Act serves is, if anything, a secondary restriction on the President’s 
authority rather than an expansion.  After all, purpose provisions 
“can suggest only which permissible meanings of the enactment 
should be preferred” when the text is otherwise ambiguous.  Scalia 
& Garner, Reading Law at 219; see District of Columbia v. Heller, 
554 U.S. 570, 577–78 (2008).  And again, any policy the President 
issues using his procurement power must “carry out” and be “con-
sistent with” the operative provisions of the Act.  40 U.S.C. § 121(a).  
That means that the agencies and officials the President directs 
must themselves have authority under the Act to carry out those 
instructions. 
The federal government also urges us to adopt the nexus ap-
proach as a reaction to past executive orders issued under the Pro-
curement Act.  We meet this argument with skepticism because 
we cannot use past practices to stretch the statute’s text.  While the 
Executive’s “early, longstanding, and consistent interpretation of a 
statute” can be “powerful evidence of its original public meaning” 
and thus help resolve ambiguities, it cannot make ambiguous text 
clear, or supply meaning that the text cannot withstand.  Kisor v. 
Wilkie, 139 S. Ct. 2400, 2426 (2019) (Gorsuch, J., concurring in the 
judgment) (emphasis omitted); see Callahan v. U.S. Dep’t of Health 
& Hum. Servs., 939 F.3d 1251, 1263 n.11 (11th Cir. 2019).  Relying 
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on the assertion of past practices would put us on the wrong side 
of that line. 
No doubt, Kahn relied on historical examples.  It empha-
sized what it called “the most prominent use” of the President’s 
Procurement Act authority, “a series of anti-discrimination require-
ments for Government contractors.”  Kahn, 618 F.2d at 790.  But 
what Kahn treated as a robust backdrop was nearly a blank slate for 
the question it faced then and we face now— whether the Procure-
ment Act itself delegates the President the authority to issue a chal-
lenged executive order.  Indeed, in Chrysler the Supreme Court 
specifically criticized two circuit cases the Kahn decision later cited 
to support its position that the Procurement Act was the only “stat-
utory support” for the antidiscrimination orders.  Id. at 790–91; see 
Chrysler, 441 U.S. at 304 n.34.  Kahn did not cite Chrysler, let alone 
acknowledge how it limited the force of the reasoning in those cir-
cuit decisions, which the Supreme Court had rejected as dicta that 
was “made without any analysis of the nexus” between the statute 
and the executive orders.  Chrysler, 441 U.S. at 304 n.34.11 
 
11 Kahn cited cases from the Third and Fifth Circuits for approving the Pro-
curement Act as the statutory support for the orders.  See 618 F.2d at 791–92 
(citing Farmer v. Philadelphia Elec. Co., 329 F.2d 3, 8 (3d Cir. 1964), Contrac-
tors Ass’n of E. Pennsylvania v. Sec’y of Lab., 442 F.2d 159, 170 (3d Cir. 1971), 
and Farkas v. Texas Instrument Inc., 375 F.2d 629, 632 n.1 (5th Cir. 1967)).  
Because, as it acknowledges, the former Fifth Circuit’s decision is dicta, the 
partial dissent is incorrect to suggest that it is binding precedent, and further 
errs by saying that it adopted a test that is similar to Kahn’s.  See Partial Dissent 
at 4–5 & n.1.  Especially in light of these conflicts, no “judicial consensus” 
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What’s more, the antidiscrimination orders have long been 
justified based on intermingled sources of authority, both constitu-
tional and statutory, and whether the Procurement Act alone could 
sustain them has long been contested.12  See id. at 304–06 & n.34; 
see also Kahn, 618 F.2d at 809–10 (MacKinnon, J., dissenting); Rob-
ert S. Pasley, The Nondiscrimination Clause in Government Con-
tracts, 43 Va. L. Rev. 837, 849 (1957) (stating that, despite the au-
thor’s support for such clauses, there is “no direct relation be-
tween” a nondiscrimination clause and “efficient performance of 
the basic contract obligations”).  This conflicted history does little 
to support the federal government’s assertion of authority now. 
 
existed when Title 40 was recodified, let alone one “so broad and unques-
tioned that we must presume Congress knew of and endorsed it.”  Jama v. 
Immigr. & Customs Enf’t, 543 U.S. 335, 349 (2005). 
12 After Chrysler, our predecessor court upheld the President’s authority to 
issue antidiscrimination orders as at least impliedly authorized by a combina-
tion of statutes—the Procurement Act, the Civil Rights Act of 1964, and the 
Equal Employment Opportunity Act of 1972—but never held that those or-
ders were expressly authorized by the Procurement Act alone.  United States 
v. Mississippi Power & Light Co., 638 F.2d 899, 904–06 & n.12 (5th Cir. Unit 
A Mar. 1981) (affirming the court’s previous analysis in United States v. New 
Orleans Pub. Serv., Inc., 553 F.2d 459, 465–68 & n.8 (5th Cir. 1977), vacated 
and remanded on other grounds, 436 U.S. 942 (1978)); see also Eatmon v. Bris-
tol Steel & Iron Works, Inc., 769 F.2d 1503, 1516 (11th Cir. 1985) (stating that 
an executive order requiring government contractors to include an “equal op-
portunity clause” in their contracts has been found authorized by both the 
grant of authority to the President in the Procurement Act and Title VII).  
Here, the federal government relies on the Procurement Act as the sole source 
of authority for the contractor vaccine mandate.   
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Finally, the federal government urges us to rely on more re-
cent executive orders that Presidents have issued in the interest of 
economy and efficiency in the procurement system.  Only one ex-
ample it offers is even remotely in the realm of public health: a di-
rective by President Obama requiring federal contractors to pro-
vide paid sick leave to employees.  See Exec. Order No. 13706, 80 
Fed. Reg. 54,697 (Sept. 7, 2015).  We do not weigh in on its validity 
here, and no other circuit court has done so either.  For our pur-
poses, that single order falls far short of establishing the kind of 
“longstanding practice” that might support interpreting the Pro-
curement Act to contemplate a vaccination power—if the text 
could bear that reading.  See Biden v. Missouri, 142 S. Ct. 647, 
652– 53 (2022). 
* 
* 
* 
In short, the President’s authority to issue Executive Order 
14042, and executive agencies’ authority to implement it, depend 
on whether Congress delegated the power to require widespread 
vaccination through the Procurement Act.  All signs suggest that 
Congress has retained this power rather than passing it on.  Agen-
cies’ bare authority to set contract specifications and terms is not 
enough to show that when Congress passed the Procurement Act 
it contemplated the general power to mandate vaccination.  The 
plaintiffs thus are likely to succeed on their claim that the President 
exceeded his authority by issuing the contractor vaccine mandate, 
and have satisfied “the most important preliminary-injunction 
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criterion.”  Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1127–28 
(11th Cir. 2022). 
IV. 
The plaintiffs have also met the remaining requirements for 
a preliminary injunction.  That is, they have shown that they would 
suffer irreparable harm without the injunction, and that the harm 
they would experience outweighs the harm the injunction would 
cause the federal government and the public. 
This Circuit has recognized that unrecoverable monetary 
loss is an irreparable harm.  Odebrecht Constr., Inc. v. Sec’y, Flor-
ida Dep’t of Transp., 715 F.3d 1268, 1289 (11th Cir. 2013).  That 
includes situations where there is “no adequate remedy at law to 
recover damages for the harm suffered.”  Transcon. Gas Pipe Line 
Co. v. 6.04 Acres, More or Less, Over Parcel(s) of Land of Approx-
imately 1.21 Acres, More or Less, Situated in Land Lot 1049, 910 
F.3d 1130, 1165 (11th Cir. 2018).  Here, the district court identified 
several obvious costs of complying with the contractor vaccine 
mandate—including lost employees, as well as the “time and ef-
fort” needed to identify employees covered by the mandate and 
implement technology to track their vaccination.  The court deter-
mined that these costs were unrecoverable—and therefore irrepa-
rable.  Such outlays, the district court found, “could imperil the fi-
nancial viability” of many trade association members, and would 
require all of the plaintiffs to “make decisions which would signifi-
cantly alter their ability to perform federal contract work” that is 
“critical to their operations.”   
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The federal government does not push back on the existence 
of those costs.  Nor has it identified a way for the plaintiffs to re-
coup them.13  Instead, it tries to rely on an unpublished decision 
from this Circuit, which it says establishes that “[o]rdinary compli-
ance costs are typically insufficient to render harm irreparable.”  
See LabMD, Inc. v. FTC, 678 F. App’x 816, 821 (11th Cir. 2016) (un-
published).  We find it odd that the federal government would rely 
so heavily on a non-binding opinion, particularly one that, when 
read in whole, undermines the government’s position by repeating 
the rule that unrecoverable costs of compliance constitute irrepa-
rable harm.  See id. at 822. 
And contrary to the federal government’s assertion in its re-
ply brief, our decision in Florida v. Department of Health and Hu-
man Services does not foreclose the plaintiffs’ argument that the 
harms they face are irreparable.  To start, in that case Florida 
claimed intrusion on its sovereign authority; a deprivation of med-
ical staff that would lead to a healthcare-staffing shortage in the 
State; and harm as “parens patriae for the many Floridians who 
 
13 As the federal government acknowledges, the Contract Disputes Act only 
makes monetary relief available for disputes involving existing contracts.  See 
41 U.S.C. §§ 7102(a), 7103(a).  The federal government argued below that 
monetary relief is available under the Tucker Act, but has not made that argu-
ment on appeal.  In any event, the Tucker Act does not allow recovery for 
costs “incurred in anticipation of contract award,” because the contractor “as-
sumes the risk that it will not be awarded the contract.”  Coflexip & Servs., 
Inc. v. United States, 961 F.2d 951, 953 (Fed. Cir. 1992); see 28 U.S.C. § 1491(b). 
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work in healthcare and do not wish to receive a vaccine.”  Florida 
v. Dep’t of Health & Hum. Servs., 19 F.4th 1271, 1291–92 (11th Cir. 
2021) (quotation omitted).  The States here rely on none of the sov-
ereign injuries we rejected there.  See id. at 1291–93.  And the ma-
jority opinion contained not one word about compliance costs, 
which were a key component of the district court’s conclusion in 
this case. 
The only real attention the Florida opinion gave to injuries 
remotely like the ones asserted here was its criticism of Florida’s 
evidence relating to quality-of-care reductions due to staffing short-
ages as “speculative” and “conclusory.”  Id. at 1292 (quotations 
omitted).  We affirmed the district court’s conclusion that the ex-
pected worker loss was unfounded because none of the supporting 
evidence indicated “with any degree of certainty whatsoever” that 
employees would resign.  Id.  That was a record-based conclu-
sion—not a categorical rule that employee losses or staff shortages 
could never constitute irreparable harm.  Here, the record sup-
ported a different conclusion.14  The district court did not abuse its 
 
14 The Florida panel also obliquely addressed economic injury in a footnote: 
“we are not persuaded that Florida has carried its burden of showing that, ab-
sent an injunction, it will suffer an economic injury that could not be redressed 
if the interim rule turns out to be invalid.”  19 F.4th at 1292 n.6.  This is, again, 
a record-based conclusion, and not one that gives us any sense of what kinds 
of costs Florida asserted or why those costs may have been remediable in that 
context. 
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Opinion of the Court 
21-14269 
discretion when it concluded that the plaintiffs’ costs satisfy the ir-
reparable harm requirement. 
Likewise, no abuse of discretion occurred when the district 
court balanced the plaintiffs’ harm from the mandate against the 
federal government’s and the public’s interests in its enforcement.  
Both sides have articulated powerful interests.  “It is indisputable 
that the public has a strong interest in combating the spread” of 
Covid-19.  Alabama Ass’n of Realtors, 141 S. Ct. at 2490.  That in-
terest extends to federal contractor employees, especially consider-
ing that at least some costs of any employee’s sickness during the 
performance of a contract may be passed on to contracting agen-
cies.  “But our system does not permit agencies to act unlawfully 
even in pursuit of desirable ends.”  Id.  During times of crisis and 
calm alike, executive officials cannot take action founded on faulty 
claims of congressional authorization.  And until a final decision is 
reached on the merits of the challengers’ claims, many other tools 
for stemming the virus and reducing procurement costs remain at 
the federal government’s disposal.  Granting the plaintiffs a prelim-
inary injunction was within the district court’s discretion. 
V. 
After deciding that a preliminary injunction was appropri-
ate, the district court enjoined the enforcement of the contractor 
vaccine mandate—against any contractor, anywhere in the United 
States, plaintiff or not.  We are both weary and wary of this drastic 
form of relief.  In their universal reach to plaintiffs and nonplaintiffs 
alike, nationwide injunctions push against the boundaries of 
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21-14269  
Opinion of the Court 
35 
judicial power, and very often impede the proper functioning of 
our federal court system. 
The constitutional backbone of the federal judiciary is our 
role in deciding cases and controversies.  U.S. Const. art. III, § 2, cl. 
1; see also Gill v. Whitford, 138 S. Ct. 1916, 1933 (2018) (“constitu-
tionally prescribed role” of the federal judiciary is “to vindicate the 
individual rights of the people appearing before it”).  In practice, 
fidelity to that role often limits the relief we can offer—while “fed-
eral courts possess broad discretion to fashion an equitable rem-
edy,” that discretion is bounded by both historical practice and tra-
ditional remedial principles.  Black Warrior Riverkeeper, Inc. v. 
U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1290 (11th Cir. 2015); 
see Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 
527 U.S. 308, 318–19 (1999). 
What is the traditional scope of injunctive relief?  The “ex-
tent necessary to protect the interests of the parties.”  Keener v. 
Convergys Corp., 342 F.3d 1264, 1269 (11th Cir. 2003).  The Su-
preme Court has cautioned that remedies should be “limited to the 
inadequacy that produced the injury in fact that the plaintiff has 
established,” and “no more burdensome to the defendant than nec-
essary to provide complete relief to the plaintiffs.”  Gill, 138 S. Ct. 
at 1931 (quotation omitted); Califano v. Yamasaki, 442 U.S. 682, 
702 (1979).  Indeed, because the judicial power serves “to redress 
or otherwise to protect against injury to the complaining party,” 
any remedial benefit extended to others is typically collateral.  
Warth v. Seldin, 422 U.S. 490, 499 (1975).  It is the political 
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Opinion of the Court 
21-14269 
branches—not the courts—that are broadly tasked with managing 
government policies in the absence of any actual or imminent in-
jury.  See Lewis v. Casey, 518 U.S. 343, 349–50 (1996). 
Consistent with these principles, we have said that a nation-
wide injunction may be issued “in appropriate circumstances.”  
Florida, 19 F.4th at 1281 (quotation omitted).  But “those appropri-
ate circumstances are rare.”  Id. at 1282.  When considering re-
quests to enjoin national rules and policies, courts must wrestle 
with whether it is possible to provide “complete relief to the plain-
tiffs with an injunction limited in scope” to the plaintiffs alone, or 
whether it is necessary to extend relief to nonparties as well.  Id. 
In some cases, that task is difficult.  The district court may 
have “trouble fashioning a remedy” that is “certain to include all 
the plaintiffs” and to provide adequate relief.  Id.  A nationwide in-
junction might appear to be a helpful salve for that concern; by 
casting a wide net, the district court can be confident that its injunc-
tion captures the right parties and fully protects them from harm.  
But that ease comes with a cost—it gives a single district court an 
outsized role in the federal system. 
By design, the federal court system allows courts to reach 
multiple answers to the same legal question, but nationwide in-
junctions frustrate that end.  There are 94 federal district courts 
around the country and 12 regional circuit courts of appeals.  The 
decision of any one of those courts typically has little effect on the 
other courts of its type: one circuit’s decisions are not binding on 
the others, and a district court’s decisions do not bind other district 
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21-14269  
Opinion of the Court 
37 
courts, other judges on the same court, or even the same judge in 
another case.  See Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011); 
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en 
banc); Fox v. Acadia State Bank, 937 F.2d 1566, 1570 (11th Cir. 
1991).  Conflicts are inevitable, and even helpful.  Differing opin-
ions aid “the development of important questions of law” and sup-
ply the Supreme Court with “the benefit it receives from permit-
ting several courts of appeals to explore a difficult question” before 
it grants certiorari.  United States v. Mendoza, 464 U.S. 154, 160 
(1984); see also Califano, 442 U.S. at 702. 
This divergence of decisions is expected—encouraged—in 
cases challenging federal government action, because the federal 
government is often a repeat player in lawsuits that involve signif-
icant legal questions.  For instance, special collateral estoppel rules 
allow the federal government to relitigate an issue adjudicated 
against it in another lawsuit involving a different party.  See Men-
doza, 464 U.S. at 160–62.  And under the doctrine of intercircuit 
nonacquiescence, an executive agency is “free to refuse acquies-
cence” and can advance its position before other circuits even after 
one circuit has disagreed.  Indep. Petrol. Ass’n of Am. v. Babbitt, 92 
F.3d 1248, 1260 n.3 (D.C. Cir. 1996). 
Of course, when Congress desires to deviate from this sys-
tem of diffuse review, it has the tools to do so.  Congress has taken 
an active role in streamlining certain lawsuits against federal agen-
cies, for instance.  Ordinarily parties challenge agency action by su-
ing in federal district courts.  See Nat’l Ass’n of Mfrs. v. Dep’t of 
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Opinion of the Court 
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Def., 138 S. Ct. 617, 624 (2018).  But for some categories of agency 
action, parties file petitions for review in regional circuit courts.  
See, e.g., 28 U.S.C. §§ 2342, 2349; 33 U.S.C. § 1369(b)(1); 29 U.S.C. 
§ 660(a)–(b); 49 U.S.C. § 46110(a).  Petitions filed across multiple 
circuits are then consolidated in a single circuit.  See 28 U.S.C. 
§ 2112(a).  If that circuit court invalidates or upholds an agency de-
cision, the ruling is binding nationwide.  See, e.g., Gorss Motels, 
Inc. v. FCC, 20 F.4th 87, 97 (2d Cir. 2021).  One recent high-profile 
example of such centralized review was the multi-circuit lottery 
that resulted in OSHA vaccine mandate cases being consolidated 
for review in the Sixth Circuit.  See Nat’l Fed’n of Indep. Bus., 142 
S. Ct. at 664. 
Other times Congress designates one circuit court as the ex-
clusive forum.  Some agency actions are reviewed only in the D.C. 
Circuit, resulting in “only one body of precedent” rather than “a 
patchwork of potentially conflicting cases in multiple circuits.”  
Eric M. Fraser et al., The Jurisdiction of the D.C. Circuit, 23 Cornell 
J.L. & Pub. Pol’y 131, 145 (2013).  Similarly, Congress has funneled 
appeals of cases involving patents and Tucker Act claims to the 
Court of Appeals for the Federal Circuit, giving that court’s deci-
sions binding effect on lower courts throughout the United States.  
See 28 U.S.C. §§ 1295(a), 1491(a)(1).  The motivating concern be-
hind Congress’s creation of the Federal Circuit was the “special 
need for nationwide uniformity” in those particular areas of the 
law.  United States v. Hohri, 482 U.S. 64, 71 (1987) (quotation omit-
ted). 
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21-14269  
Opinion of the Court 
39 
In the context of multidistrict litigation, civil cases involving 
common questions of fact may be transferred to a single district 
court.  28 U.S.C. § 1407(a).  That court coordinates pretrial pro-
ceedings “for the convenience of parties and witnesses” and “the 
just and efficient conduct of such actions.”  Id.  But once pretrial 
issues are resolved, remaining actions are remanded to the original 
districts.  See id.  Given Congress’s power to shape the federal court 
system and its practice of delineating alternate avenues for litiga-
tion, federal courts should hesitate before deviating from the de-
fault system on our own terms. 
By cutting off parallel lawsuits, nationwide injunctions frus-
trate foundational principles of the federal court system.  They en-
courage gamesmanship, motivating plaintiffs to seek out the 
friendliest forum and rush to litigate important legal questions in a 
preliminary posture.  They disturb comity by hindering other 
courts from evaluating legal issues for themselves.15  And they 
 
15 This problem has played out in the wake of the nationwide injunction that 
the district court entered here; several other district courts across the country 
have dismissed, stayed, or otherwise declined to address lawsuits filed in their 
own jurisdictions that challenge the contractor vaccine mandate.  See, e.g., de 
Cristo Cano v. Biden, No. 22-CV-193, 2022 WL 1004558, at *1–2 (S.D. Cal. 
Apr. 4, 2022); Feds for Med. Freedom v. Biden, No. 21-cv-356, 2022 WL 
188329, at *1 (S.D. Tex. Jan. 21, 2022); Conner v. Biden, No. 21-CV-074, 2021 
WL 6773174, at *8 (N.D. Tex. Dec. 28, 2021).  And given the injunction, any 
court’s finding that the mandate is likely to be lawful has no impact.  See Do-
novan v. Vance, 576 F. Supp. 3d 816, 825 (E.D. Wash. 2021). 
 
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21-14269 
escalate pressure on the Supreme Court docket by limiting perco-
lation and raising the stakes of individual lower-court decisions. 
We are not the first to catalog these problems—many have 
already done so in response to the growing trend of nationwide 
injunctions against federal action.  See, e.g., Dep’t of Homeland 
Sec. v. New York, 140 S. Ct. 599, 600–01 (2020) (Gorsuch, J., con-
curring in the grant of stay); Trump, 138 S. Ct. at 2424–29 (Thomas, 
J., concurring); Arizona v. Biden, 40 F.4th 375, 395–98 (6th Cir. 
2022) (Sutton, C.J., concurring); City of Chicago v. Barr, 961 F.3d 
882, 936–38 (7th Cir. 2020) (Manion, J., concurring in the judg-
ment); CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 256–62 
(4th Cir. 2020) (Wilkinson, J.), vacated for reh’g en banc, 981 F.3d 
311 (4th Cir. 2020) (dismissed Mar. 11, 2021); California v. Azar, 911 
F.3d 558, 583–84 (9th Cir. 2018) (Wallace, J.); see also Ronald A. 
Cass, Nationwide Injunctions’ Governance Problems: Forum 
Shopping, Politicizing Courts, and Eroding Constitutional Struc-
ture, 27 Geo. Mason L. Rev. 29, 42–62 (2019); Samuel L. Bray, Mul-
tiple Chancellors: Reforming the National Injunction, 131 Harv. L. 
Rev. 417, 457–65 (2017).  Concerns that nationwide injunctive relief 
is both increasing in frequency and incompatible with the proper 
judicial role are widespread. 
These concerns cannot be lightly set aside, as tempting as 
that may be after several decades of tacit acquiescence in universal, 
nationwide remedies.  When considering a request to enjoin a na-
tional rule or policy—especially on a preliminary basis—a district 
court should thoroughly analyze the extent of relief necessary to 
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21-14269  
Opinion of the Court 
41 
protect the plaintiffs from harm, taking care that the remedy issued 
is not “more burdensome to the defendant than necessary to pro-
vide complete relief to the plaintiffs.”  Califano, 442 U.S. at 702. 
To be sure, sometimes an injunctive order that relieves the 
plaintiff of an injury will affect nonparties.  One example from a 
different context is instructive: providing relief to a voter- plaintiff 
injured by racial gerrymandering requires revising the boundaries 
of the legislative district, which necessarily impacts other voters.  
See Gill, 138 S. Ct. at 1930–31.  But as this example shows, the na-
ture of the remedy is dependent on the nature of the defendant’s 
action—indiscriminate relief should not be issued by default.  See 
Lewis, 518 U.S. at 357. 
Courts have, over time, suggested a range of factors that 
may counsel in favor of a nationwide injunction.  See, e.g., Florida, 
19 F.4th at 1281–83.  But these have not been treated as a checklist.  
And the analysis typically circles back to the core question: whether 
a nationwide injunction is necessary to offer full relief to the plain-
tiffs.  The number and geographic dispersion of the plaintiffs is a 
prime example; we have rejected reliance on that factor when the 
facts raised “no concerns that a non-nationwide preliminary injunc-
tion wouldn’t provide the plaintiffs with complete relief.”  Id. at 
1282.  After all, “the scope of injunctive relief is dictated by the ex-
tent of the violation established, not by the geographical extent of 
the plaintiff class.”  Califano, 442 U.S. at 702.  And an injunction 
that bars action against the plaintiffs obligates a defendant to re-
spect that injunction, no matter where in the country the plaintiffs 
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Opinion of the Court 
21-14269 
are located or how many plaintiffs there are.  See Steele v. Bulova 
Watch Co., 344 U.S. 280, 289 (1952). 
Reviewing courts should also be skeptical of nationwide in-
junctions premised on the need to protect nonparties.  Several pro-
cedural devices allow nonparties with similar interests to seek the 
protection of injunctive relief—class certification under Rule 23, 
joinder and intervention in an existing lawsuit, or even filing a new 
lawsuit of their own.  See Florida, 19 F.4th at 1282.  A district court 
cannot circumvent these mechanisms in the name of providing in-
junctive relief only for nonparties’ benefit.  And, in cases challeng-
ing federal administrative actions, similarly situated parties may 
well have extremely dissimilar views on whether they are helped 
or harmed by a federal policy. 
Nor should a district court enter a nationwide injunction to 
serve the general interest of national uniformity.  As we have de-
scribed, nonuniformity is a deliberate feature of our federal court 
system, and Congress—not one of the 94 federal district courts or 
12 regional circuit courts—is best positioned to choose when to de-
part from that norm.16  And when a “regulatory challenge involves 
important and difficult questions of law, it is especially vital that 
various courts be allowed to weigh in so that the issues can perco-
late among the courts.”  Id. at 1283. 
 
16 On appeal the plaintiffs have abandoned any argument relating to the po-
tential availability of vacatur of an agency action as an ultimate remedy.  We 
therefore do not consider that issue here. 
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21-14269  
Opinion of the Court 
43 
Here, the district court relied on improper considerations to 
justify its nationwide injunction.  It emphasized that members of 
Associated Builders and Contractors are located “all over the coun-
try,” and that, in recent years, they were collectively awarded most 
federal construction contracts.  Stretching logic, the court reasoned 
that if it “were to enjoin the enforcement of the mandate only in 
the Southern District of Georgia or only in Georgia, Alabama, 
Idaho, Kansas, South Carolina, Utah and West Virginia,” then 
“members would not have injunctive relief as to covered contracts 
in other states.”  But injunctive relief operates on specific parties, 
not geographic territories, and identifying the plaintiff States and 
trade association members is possible. 
The district court’s other reason for a nationwide remedy 
was that narrower relief “would prove unwieldy and would only 
cause more confusion.”  This statement is ambiguous: it may re-
flect either the lack of uniformity that would result from a well- tai-
lored injunction, or the difficulty of structuring an injunction that 
allows enforcement against nonparties while still providing relief 
to the plaintiffs.  The former is an inappropriate consideration, and 
the latter is unsupported by the district court’s analysis or the rec-
ord. 
Some aspects of the injunctive order are overbroad.  In the 
context of new and existing contracts, extending the injunction to 
nonparties is unnecessary to provide complete relief to the plain-
tiffs; a contract term may be enforceable in one agreement but 
dormant in another.  We therefore vacate the district court’s 
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Opinion of the Court 
21-14269 
injunction to the extent that it bars enforcement of the mandate 
against nonparty contractors through new and existing contracts.  
The injunction permissibly blocks federal agencies from enforcing 
the mandate in contracts with any plaintiff State or member of As-
sociated Builders and Contractors.  As a result, plaintiffs need not 
comply with the vaccination requirement in their capacity as con-
tractors, and they are not responsible for including that require-
ment in lower-tier subcontracts. 
In the solicitation context, the lines to draw are not so 
clear- cut.  Unlike procurement contracts, solicitations are generally 
issued by the federal government to many bidders, who are then 
expected to comply with the solicitation’s terms to remain eligible 
for the contract award.  Enjoining the mandate in solicitations 
where no plaintiff participates as a bidder is unnecessary to provide 
relief to the plaintiffs, and the injunction should not extend that far.  
But the federal government agreed at oral argument that plaintiffs 
would be disadvantaged in the solicitation process if the federal 
government could consider whether a bidder is subject to the man-
date.  As the federal government proposed, we leave the injunction 
in place to the extent that it bars federal agencies from considering 
the enforceability of the mandate when deciding who should re-
ceive a contract, if any plaintiff belongs to the pool of bidders.  An 
injunction of that scope, the federal government concedes, is “nec-
essary to give the plaintiffs complete relief.”   
This case shows both the difficulty and the importance of 
considering whether the courts can offer complete relief to the 
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Opinion of the Court 
45 
plaintiffs in federal regulatory challenges without issuing a nation-
wide injunction.  Here, we can.  So we must. 
* 
* 
* 
The district court appropriately determined that the plain-
tiffs are entitled to a preliminary injunction against the enforce-
ment of the contractor vaccine mandate.  But the scope of that in-
junction—extending nationwide and without distinction to plain-
tiffs and nonparties alike—was overbroad.  We AFFIRM the district 
court’s order to the extent that it enjoins federal agencies from en-
forcing the mandate against the plaintiffs—the seven plaintiff States 
and their agencies and members of Associated Builders and Con-
tractors—and to the extent that it bars the federal government 
from considering a bidder’s compliance with the mandate when 
deciding whether to grant a contract to a plaintiff or to a nonparty 
bidder.  We otherwise VACATE the preliminary injunction.  As a 
result, the federal government is no longer enjoined from enforc-
ing the mandate in new and existing procurement contracts be-
tween the federal government and nonparties, or in the selection 
process following solicitations in which no plaintiff participates as 
a bidder. 
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21-14269  
EDMONDSON, J., concurring in result 
1 
 
EDMONDSON, Circuit Judge, concurring with Judge Grant in the re-
sult: 
I concur in the result Judge Grant reaches for this interlocu-
tory appeal. 
After looking at the briefs, precedents, and other authorities, 
I easily believe that plaintiffs have a reasonable chance to succeed 
on the merits in the case underlying this interlocutory appeal.  I 
agree that the district court did not abuse its discretion in granting 
a preliminary injunction.  I also agree that a nationwide injunction 
(one granting supposed “relief” to absent persons who had asked 
for no such “relief” and might not want it) was an abuse of discre-
tion; the preliminary injunction in this case must be limited to pro-
tecting the parties in this case.  Furthermore, I agree that plaintiffs 
must not be disadvantaged by the federal government on account 
of the injunction that protects these parties. 
 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 
1 
 
ANDERSON, Circuit Judge, concurring in part & dissenting in part: 
I agree that the scope of the injunction should be narrowed, 
and I join Part V of Judge Grant’s opinion (hereinafter “the lead 
opinion”).  However, I disagree that Appellees have shown a sub-
stantial likelihood of success on the merits.  I do not think Appellees 
have demonstrated that the President lacks authority to require 
agencies to insert a clause into their future contracts and solicita-
tions that require those federal contractors and their subcontrac-
tors to require COVID-19 vaccinations for their employees who ei-
ther work on federal contracts or work in the same location as em-
ployees who work on federal contracts.  The Federal Property and 
Administrative Services Act of 1949 (“the Procurement Act”), 40 
U.S.C. § 101 et seq., gives the President authority to “prescribe pol-
icies and directives” to ensure “an economical and efficient system 
for” procurement and contracting.  40 U.S.C. §§ 101, 121.  This lan-
guage, in my view, clearly authorizes the President’s action here.  
Accordingly, to this extent, I respectfully dissent. 
 
Section 121 of the Procurement Act provides: 
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. 
40 U.S.C. § 121.   
In pertinent part, 40 U.S.C. § 101 provides: 
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2  ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
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 nonper-
sonal services, and performing related functions in-
cluding contracting, inspection, storage, issue, setting 
specifications, identification and classification, trans-
portation and traffic management, establishment of 
pools or systems for transportation of Government 
personnel and property by motor vehicle within spe-
cific areas, management of public utility services, re-
pairing and converting, establishment of inventory 
levels, establishment of forms and procedures, and 
representation before federal and state regulatory 
bodies. 
“It is a fundamental canon of statutory construction that the words 
of a statute must be read in their context and with a view to their 
place in the overall statutory scheme.”  Gundy v. United States, 139 
S. Ct. 2116, 2126 (2019) (plurality opinion) (quoting Nat’l Ass’n of 
Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666, 127 S. Ct. 
2518, 2534 (2007)).  In addition to context and structure, courts “of-
ten look[] to ‘history [and] purpose’ to divine the meaning of lan-
guage.”  Id. (alternations in original) (quoting Maracich v. Spears, 
570 U.S. 48, 76, 133 S. Ct. 2191, 2209 (2013)). 
Here, § 121 provides clear authority for the President to 
“prescribe policies and directives that the President considers nec-
essary to carry out” the Procurement Act.  40 U.S.C. § 121.  And 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 
3 
 
§ 101, the purpose of the Procurement Act, clarifies the President’s 
authority to prescribe those policies and directives, allowing the 
President to prescribe policies and directives that “provide the Fed-
eral Government with an economical and efficient system for” pro-
curement.  40 U.S.C. § 101.  The statute, moreover, specifically 
contemplates numerous functions—including “contracting” —for 
“[p]rocuring and supplying property and nonpersonal services.”  Id.  
The Procurement Act, then, clearly authorizes the President to pre-
scribe such policies and directives that carry out the purpose of the 
statute to ensure an “economical and efficient system for” procure-
ment.  40 U.S.C. § 101. 
That is what the President did here.  The President issued an 
Executive Order (“EO”) requiring agencies to insert clauses into 
their future contracts and solicitations that, in turn, required that 
contractors and subcontractors assure that their employees who 
work on federal contracts or work in a workplace with those who 
do are vaccinated against COVID-19.  Exec. Order No. 14,042, 86 
Fed. Reg. 50,985 (Sept. 9, 2021).  To ensure that such a policy would 
provide for an “economical and efficient system for” procurement, 
40 U.S.C. § 101, the EO was not effective until the Director of the 
Office of Management and Budget (“OMB”) made findings that the 
EO would enhance the economy and efficiency of the contracting 
system, 86 Fed. Reg. at 50,985–86.  The Director of OMB then 
made the appropriate findings.  The President’s EO, thus, fits com-
fortably within the Procurement Act’s grant of power. 
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4  ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
This understanding of the Procurement Act is in accord with 
the many court decisions upholding Presidential Executive Orders 
issued pursuant to § 121.  In 1979, the D.C. Circuit upheld an exer-
cise of the President’s power under the Procurement Act.  See Am. 
Fed’n of Labor & Congress of Indus. Orgs v. Kahn, 618 F.2d 784, 
785 (D.C. Cir. 1979).  In Kahn, the D.C. Circuit, interpreting an ear-
lier but substantively identical version of the statute, held that § 121 
“grants the President particularly direct and broad-ranging author-
ity over those larger administrative and management issues that 
involve the Government as a whole” and that the authority 
“should be used in order to achieve a flexible management system 
capable of making sophisticated judgements in pursuit of economy 
and efficiency.”  Id. at 789.  Despite that broad holding, the court 
emphasized that “our decision today does not write a blank check 
for the President to fill in at his will.”  Id. at 793.  To ensure that the 
decision was not a blank check, the D.C. Circuit required “a suffi-
ciently close nexus between [economy and efficiency] and the pro-
curement” program at issue.  Id. at 792.   
Other circuits have adopted similar tests.  In a case regarding 
an early executive order imposing antidiscrimination requirements 
on federal contractors, the former Fifth Circuit noted in dicta that 
the order was related enough “to the establishment of ‘an econom-
ical and efficient system for . . . the procurement and supply’ of 
property and services” that it concluded that the order “was issued 
pursuant to statutory authority.”  Farkas v. Tex. Instrument, Inc., 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 
5 
 
375 F.2d 629, 632 n.1 (5th Cir. 1967).1  In assessing similar antidis-
crimination requirements for federally assisted construction pro-
jects, the Third Circuit upheld the Executive Order because, as in 
direct procurement, “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.”  Contractors 
Ass’n of E. Pa. v. Sec’y of Labor, 442 F.2d 159, 171 (3d Cir. 1971).  
Similarly, the Fourth Circuit, while not adopting the nexus test, ap-
plied the test to determine whether the antidiscrimination provi-
sions could validly be applied to insurance companies providing 
workers’ compensation insurance to federal contractors.  Liberty 
Mut. Ins. Co. v. Friedman, 639 F.2d 164, 165–66, 170 (4th Cir. 1981).  
The lead opinion attempts to undermine this consensus in 
two ways.  First, it focuses on the Supreme Court’s decision in 
Chrysler Corp. v. Brown, 441 U.S. 281, 99 S. Ct. 1705 (1979).  There, 
the Supreme Court held that the Procurement Act did not author-
ize the public disclosure of trade secret information, which was too 
remotely related to the Government’s program to eliminate em-
ployment discrimination by the Federal Government and its con-
tractors.  Id. at 304–07, 99 S. Ct. at 1719–20.  In doing so, the Court 
explicitly stated that it was not necessary to decide, and therefore 
did not decide, whether the executive order at issue was authorized 
by the Procurement Act or any other statute.  Id. at 304–06, 99 S. 
 
1 Precedents of the old Fifth Circuit are binding on this Circuit.  Bonner v. City 
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 
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6  ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
Ct. at 1719–20.  From this decision, the lead opinion highlights a 
footnote that noted that the Procurement Act contained “no spe-
cific reference to employment discrimination” while acknowledg-
ing the consensus that had found such regulations authorized by 
the Act.  Id. at 304 n.34, 99 S. Ct. at 1719 n.34.  But the Supreme 
Court’s dicta—which fails to take a position on how the Procure-
ment Act should be interpreted—does not suggest that delegated 
authority must always be tied to a specific statutory provision.  In-
deed, Chrysler expressly disavows any such requirement: “This is 
not to say that any grant of legislative authority to a federal agency 
by Congress must be specific before regulations promulgated pur-
suant to it can be binding on courts in a manner akin to statutes.”  
Id. at 308, 99 S. Ct. at 1720–21; see also Florida v. Dep’t of Health 
& Human Servs., 19 F.4th 1271, 1288 (11th Cir. 2021) (“[B]y its very 
nature, a broad grant of authority . . . does not require an indica-
tion that specific activities are permitted.”).  Indeed, the contrary 
position would make no sense in this case.  The President in this 
case is acting in the role of a proprietor—not in the role of a regu-
lator.  As developed more fully below, the proprietary role of the 
government here is significant.  Consistent with common sense 
and common experience, it is acknowledged that there is explicit 
authority for the government to identify specifications for the gov-
ernment work.  See 41 U.S.C. § 3306.  Pursuant to the precedent 
discussed above, as well as common sense and common experi-
ence, this includes the authority to specify reasonable qualifications 
for performing the government work.  Neither common sense nor 
historical practices would suppose that Congress must foresee and 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 
7 
 
explicitly authorize every qualification for government contractors 
and workers that the infinitely various contractual circumstances 
may require.  Thus, Chrysler does not undermine this longstand-
ing, thoughtful consensus among the Courts of Appeals. 
In a second attempt to undermine this longstanding consen-
sus, the lead opinion argues that the Act’s purpose is not a provi-
sion of the Act that the President is authorized to carry out.  Lead 
op. at 22–24.  But the purpose is actually located within the subtitle 
and therefore is part of the subtitle that § 121 gives the President 
the authority to carry out.  And unlike in Independent Meat Pack-
ers Ass’n v. Butz, 526 F.2d 228 (8th Cir. 1975), I do not rely on the 
proposition that the Executive Order is authorized solely by the 
purpose.  Id. at 235.  Here, the purpose is within the subtitle that 
the President has authority to carry out and guides and informs 
every provision of the subtitle.2  Therefore, this case resembles 
Gundy where 34 U.S.C. § 20913(d) granted the Attorney General 
certain powers and the purpose of the statute, 34 U.S.C. § 20901, 
guided the interpretation of that grant of power.  Gundy, 139 S. Ct. 
at 2127.  Thus, I respectfully disagree with the lead opinion’s at-
tempts to undermine the consensus understanding of the Act. 
 
2 Like the lead opinion, Lead op. at 24–25, I expressly disavow the proposition 
“that the Executive Order is authorized solely by the purpose.”  Rather, I sug-
gest only that the purpose “guides and informs” the authority of the President, 
like any proprietor, to identify reasonable specifications for the government 
work, including reasonable qualifications for those performing such work. 
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8  ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
Moreover, this understanding has served as the bedrock for 
the longstanding Presidential practice of issuing Executive Orders 
related to contracting and procurement that has been routinely up-
held by court decisions.  See Biden v. Missouri, 142 S. Ct. 647, 653 
(2022) (finding informative the Government’s longstanding prac-
tice of imposing similar conditions in upholding a vaccine mandate 
for participating facilities).  These prior EOs have routinely im-
posed conditions on the internal operations of federal contractors 
and subcontractors.  See, e.g., Exec. Order 10,479, 18 Fed. Reg. 
4899 (Aug. 13, 1953) (requiring certain antidiscrimination require-
ments); Exec. Order 10,925, 26 Fed. Reg. 1977 (Mar. 6, 1961) (re-
quiring nondiscrimination and affirmative steps to accomplish that 
goal); Kahn, 618 F.2d at 785–86 (analyzing an EO requiring certifi-
cation of compliance with wage and price standards); Exec. Order 
13,201, 66 Fed. Reg. 11,221 (Feb. 17, 2001) (requiring contractors to 
post notices of certain federal labor laws); Exec. Order 13,645, 73 
Fed. Reg. 33,285 (Jun. 6, 2008) (requiring use of E-Verify for em-
ployment verification); Exec. Order 13,706, 80 Fed. Reg. 54,697 
(Sep. 7, 2015) (requiring federal contractors to provide paid sick 
leave to their employees).  Just as the Supreme Court found this 
type of longstanding practice informative in Missouri, “the govern-
ment’s early, longstanding, and consistent interpretation of a stat-
ute, regulation, or other legal instrument could count as powerful 
evidence of its original public meaning.”  Kisor v. Wilkie, 139 S. Ct. 
2400, 2426 (2019) (Gorsuch, J., concurring in the judgment). 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 
9 
 
This longstanding practice and the many judicial decisions 
repeatedly upholding this longstanding practice provided the back-
drop for Congress’s recodification of the Procurement Act in 2002.  
As the President notes, Congress made several changes to the Pro-
curement Act over the years without restricting or modifying the 
President’s power.  Ultimately, Congress recodified the pertinent 
statutory provisions at issue here but did not make any “substan-
tive change in existing law.”  See Pub. L. No. 107-217, 116 Stat. 
1062, 1303 (2002).  “Congress is presumed to be aware of an admin-
istrative or judicial interpretation of a statute and to adopt that in-
terpretation when it re-enacts a statute without change.”  Fort 
Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th 
1266, 1280 (11th Cir. 2021) (quoting Pollitzer v. Gebhardt, 860 F.3d 
1334, 1340 (11th Cir. 2017)).  And while the Supreme Court had not 
addressed the President’s power under the Procurement Act, a re-
enactment of a statute without any change is presumed to carry 
forward a “uniform interpretation by inferior courts.”  See Tex. 
Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 
U.S. 519, 536, 135 S. Ct. 2507, 2520 (2015) (quoting A. Scalia & B. 
Garner, Reading Law: The Interpretation of Legal Texts 322 
(2012)). 
Thus, the combination of 40 U.S.C. § 121 (granting power 
to the President) and § 101 (guiding the President’s action) provides 
clear authority for the President’s actions here.  The President has 
authority to impose conditions on contractors, including condi-
tions that impact the internal operations of those contractors, so 
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10 ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
long as those requirements have a sufficiently close nexus to 
providing the Government with “an economical and efficient sys-
tem for” procurement.  40 U.S.C. § 101.  And this EO has such a 
sufficiently close nexus to economy and efficiency.  As the Director 
of OMB found, the EO would “promote economy and efficiency in 
Federal contracting by reducing absenteeism and decreasing labor 
costs for contractors and subcontractors.”  Determination of the 
Acting OMB Director Regarding the Revised Safer Federal Work-
force Task Force Guidance for Federal Contractors and the Revised 
Economy & Efficiency Analysis, 86 Fed. Reg. 63,418, 63,418 (Nov. 
16, 2021).  “When, as here, an agency is making ‘predictive judg-
ments about the likely economic effects of a rule,’ we are particu-
larly loathe to second-guess its analysis.”  Newspaper Ass’n of Am. 
v. Postal Regul. Comm’n, 734 F.3d 1208, 1216 (D.C. Cir. 2013) 
(quoting Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536, 541 (D.C. Cir. 
2009)).   
The nexus to economy and efficiency here is significantly 
closer than that of prior Executive Orders that courts have upheld.  
The D.C. Circuit upheld an order requiring federal contractors “to 
post notices at all of their facilities informing employees” of their 
rights under federal labor law.  UAW-Labor Emp. & Training 
Corp. v. Chao, 325 F.3d 360, 362 (D.C. Cir. 2003).  The court there 
found a sufficiently close nexus to “economy and efficiency” be-
cause the Executive Order noted that “[w]hen workers are better 
informed of their rights, including their rights under the Federal 
labor laws, their productivity is enhanced.”  Id. at 366 (quoting 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 11 
 
Exec. Order 13201, §1(a), 66 Fed. Reg. at 11,221).  Similarly, a dis-
trict court in Maryland upheld a requirement that federal contrac-
tors use the E-Verify system to verify employment eligibility for 
new hires because those contractors would be less likely to face 
immigration enforcement actions and, therefore, would be more 
efficient and dependable.  Chamber of Com. v. Napolitano, 648 F. 
Supp. 2d 726, 738 (D. Md. 2009) (citing Exec. Order No. 13,465, 73 
Fed. Reg. 33,285 (June 11, 2008)).  And in upholding antidiscrimi-
nation requirements in federally assisted construction projects on 
a similar economy and efficiency rationale, the Third Circuit found 
that the “government has a vital interest in assuring that the largest 
possible pool of qualified manpower be available for the accom-
plishment of its projects.”  Contractors Ass’n, 442 F.2d at 171.  It is 
clear to me that the nexus here—i.e., if contractors have vaccinated 
employees, they will be less likely to get sick and miss work, and 
thus will be more efficient—enjoys a significantly closer nexus to 
the purposes of the Procurement Act than those previously upheld 
by the learned federal courts. 
Because the statute clearly authorizes the President to pre-
scribe policies and directives that promote an “economical and ef-
ficient system for” federal procurement, and because this EO has a 
sufficiently close nexus to those criteria, I do not think the Appel-
lees have shown a substantial likelihood of success on the merits.  
The lead opinion relies on the major questions doctrine as a 
reason that the instant EO exceeds the President’s authority.  The 
Supreme Court has described the major questions doctrine in two 
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12 ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
ways.  First, the major questions doctrine provides that “[w]e ex-
pect Congress to speak clearly if it wishes to assign to an agency 
decisions of vast ‘economic and political significance.’”  Util. Air 
Regul. Grp. v. EPA (UARG), 573 U.S. 302, 324, 134 S. Ct. 2427, 2444 
(2014) (quoting Food & Drug Admin. v. Brown & Williamson To-
bacco Corp., 529 U.S. 120, 160, 120 S. Ct. 1291, 1315 (2000)).  Sec-
ond, the major questions doctrine has been described as a skepti-
cism of agency interpretations that “would bring about an enor-
mous and transformative expansion in . . . regulatory authority 
without clear congressional authorization.”  Id.  In other words, 
the doctrine requires that an agency “must point to ‘clear congres-
sional authorization’ for the power it claims.”  West Virginia v. 
EPA, 142 S. Ct. 2587, 2609 (2022) (quoting UARG, 573 U.S. at 324, 
134 S. Ct. at 2444). 
While I agree this is a question of major economic and po-
litical significance, we are not dealing with delegation to an agency.  
Instead, the delegation is to the President who does not suffer from 
the same lack of political accountability that agencies may, partic-
ularly when the President acts on a question of economic and po-
litical significance.  Cf. Free Enter. Fund v. Public Co. Accounting 
Oversight Bd., 561 U.S. 477, 513–14, 130 S. Ct. 3138, 3164 (2010) 
(holding that the structure of an independent agency violated the 
Constitution because the President, “who is accountable to the 
people for executing the laws,” did not have the ability to hold the 
independent agency accountable). 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 13 
 
Moreover, this Executive Order does not bring about an 
enormous and transformative expansion in regulatory authority.  
Cf. Florida, 19 F.4th at 1288 (quoting UARG, 573 U.S. at 324, 134 S. 
Ct. at 2444).  Past Executive Orders—enjoying not nearly as close 
a nexus to the statutory delegation of authority as does the instant 
EO—have imposed requirements on federal contractors and sub-
contractors.  Thus, this EO does not bring about an enormous and 
transformative expansion of regulatory authority.  Also, and even 
more significant, this is an exercise of the Federal Government’s 
proprietary rather than regulatory authority.3  Cf. UARG, 573 U.S. 
 
3 An exercise of proprietary authority can amount to a regulation if it seeks to 
regulate conduct unrelated to the government’s proprietary interests.  See 
Wis. Dep’t of Indus. v. Gould, Inc., 475 U.S. 282, 287–88, 106 S. Ct. 1057, 1061–
62 (1986) (holding that a state’s use of its spending power to sanction certain 
conduct unrelated to the state contract at issue was regulatory); Bldg. & Con-
str. Trades Dep’t v. Allbaugh, 295 F.3d 28, 35 (D.C. Cir. 2002) (holding that a 
use of the spending power is regulatory if “it ‘addresse[s] employer conduct 
unrelated to the employer’s performance of contractual obligations to the 
[Government].’” (quoting Bldg. & Constr. Trades Council of Metropolitan 
Dist. v. Associated Bldg. & Contractors of Massachusetts/Rhode Island, Inc., 
507 U.S. 218, 228–29, 113 S. Ct. 1190, 1197 (1993))).  But the EO here does not 
do so.  The vaccine mandate extends only to those employees of contractors 
and subcontractors who either work on federal contracts or work in the same 
workplace as employees who do.  It is a matter of common sense and common 
experience that those who share a workplace can spread a contagious disease 
to other employees sharing that workspace.  Thus, the EO here is tailored to 
the government’s proprietary interest in ensuring “an economical and efficient 
system for” procurement.  40 U.S.C. § 101. 
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14 ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
at 324, 134 S. Ct. at 2444 (expressing skepticism regarding enor-
mous and transformative expansions of regulatory authority). 
Although the major questions doctrine has never been ap-
plied to an exercise of proprietary authority and has never been ap-
plied to the exercise of power by the President, I will assume that 
the doctrine does apply.  When interpreting a statute, we seek to 
determine Congress’s intent, Chickasaw Nation v. United States, 
534 U.S. 84, 94, 122 S. Ct. 528, 535 (2001), and the major questions 
doctrine attempts to discern Congress’s intent, see Stephen G. 
Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. 
L. Rev. 363, 370 (1986) (“Congress is more likely to have focused 
upon, and answered, major questions, while leaving interstitial 
matters to answer themselves in the course of the statute’s daily 
administration.”).  I see no reason why we should not apply the 
doctrine as a tool of statutory interpretation along with all other 
available tools. 
Applying the major questions doctrine, along with the other 
traditional canons of statutory interpretation described above, I 
conclude that the authority exercised by the President in this EO 
was clearly authorized by the 1949 Congress that enacted the Pro-
curement Act.  As Justice Gorsuch pointed out in his concurrence 
in West Virginia, the major questions doctrine is essentially a clear-
statement rule.  West Virginia, 142 S. Ct. at 2616 (Gorsuch, J., con-
curring).  As the West Virginia majority held, the proponent of the 
authority at issue “must point to ‘clear congressional 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 15 
 
authorization’ for the power it claims.”  Id. at 2609 (quoting UARG, 
573 U.S. at 324, 134 S. Ct. at 2444). 
In addition to the reasons detailed above that show why the 
statute clearly authorizes the President’s action here, two addi-
tional considerations bolster my conviction that the President’s au-
thority here satisfies the clear statement rule of the major questions 
doctrine—first, the President is delegated broad discretion to 
achieve broad goals, and second, the President is delegated author-
ity to exercise in the role of a proprietor.   
Regarding the first consideration, the grant of power to the 
President is broadly worded.  Not only does the statue provide that 
the “President may prescribe policies and directives that the Presi-
dent considers necessary,” 40 U.S.C. § 121 (emphasis added), the 
provision that guides this authority requires that those policies and 
directives “provide the Federal Government with an economical 
and efficient system for” procurement, 40 U.S.C. § 101.  Thus, the 
delegation to the President here provides broad discretion to 
achieve broad goals.  The major questions doctrine has never been 
used to find unlawful an exercise of power that was delegated by 
Congress through such a broadly worded grant.  Instead, the major 
questions doctrine has proved potent when Congress has created a 
detailed regulatory scheme and the purported exercise of power 
does not fit clearly within that scheme.  See, e.g., Brown & Wil-
liamson, 529 U.S. at 126, 120 S. Ct. at 1297 (determining the defini-
tions of “drug” and “device” under the Food, Drug, and Cosmetic 
Act); UARG, 573 U.S. at 308–10, 134 S. Ct. at 2435 (interpreting the 
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16 ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
term “air pollutant” for stationary-source permitting in the Clean 
Air Act); Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 663, 
665 (2022) (finding the major questions doctrine applicable where 
the statute provided OSHA authority to create emergency stand-
ards in the workplace where “employees are exposed to grave dan-
ger from exposure to substances or agents determined to be toxic 
or physically harmful or from new hazards” (quoting 29 U.S.C. 
§ 665(c)(1))).  But here, Congress has delegated authority to the 
President to issue policies and directives that “provide the Federal 
Government with an economical and efficient system for” procure-
ment.  40 U.S.C. § 101.   
Regarding the second consideration, the exercise of author-
ity is proprietary.  As a general matter, proprietary authority is a 
type of authority where the government typically has more leeway 
to act.  See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 
570 U.S. 205, 214–15, 133 S. Ct. 2321, 2328 (2013) (noting that gov-
ernment can impose “conditions that define the limits of the gov-
ernment spending program” but cannot “seek to leverage funding 
to regulate speech outside the contours of the program itself”).  
Thus, insofar as the major questions doctrine sheds light on Con-
gress’s intended delegation, this statute clearly authorizes the Pres-
ident to issue policies and directives that enhance the economy and 
efficiency of the Federal Government’s procurement system. 
In my judgment, it is of especial significance for this case that 
the President has been delegated authority to exercise in the role 
of a proprietor (not as a regulator).  The President is explicitly 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 17 
 
authorized to set policies and directives to guide the Executive 
Branch in the exercise of its authority as proprietor to enter into 
contracts in which the contractor and its employees and subcon-
tractors will be performing services to complete government work.  
Any proprietor is expected to require, in the contract, specifications 
for the work to be done and reasonable qualifications for those per-
forming the work.  See Perkins v. Lukens Steel Co., 310 U.S. 113, 
127, 60 S. Ct. 869, 876 (1940) (holding that the Government, acting 
in the role of a proprietor, has the power “to determine those with 
whom it will deal”).  Any proprietor would obviously choose to 
deal with persons whom the proprietor perceives as most likely to 
perform the work competently and most likely to complete the 
work in a timely manner.  Thus, the Procurement Act very clearly 
grants to the President the authority to include in the contract pro-
visions designed to result in the government work being per-
formed by persons qualified to complete the work in a competent 
and timely manner.  Because the vaccination requirement has such 
a close nexus to best assuring that the government work will be 
completed without delay and in a timely manner, it seems to me 
that it falls comfortably within the clearly authorized powers dele-
gated to the President.  It seems clear to me that the vaccination 
requirement here has an extremely close nexus to the authority of 
the President to “prescribe . . . directives” to carry out the econom-
ical and efficient procurement authorized by Congress.  40 U.S.C. 
§ 121. 
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18 ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
The Supreme Court refers to the major questions doctrine 
as a common sense rule.  See West Virginia, 142 S. Ct. at 2609 (re-
ferring to “common sense as to the manner in which Congress 
[would have been] likely to delegate such power” (internal quota-
tions omitted)).  Unlike the situation in West Virginia and in all of 
the cases in which the Supreme Court has found a lack of authority 
under the major questions doctrine, the common sense interpreta-
tion of the statute in this case clearly grants authority to the Presi-
dent to prescribe the instant EO. 
Moreover, I do not find it surprising4 that the President 
would mandate vaccination for certain employees of federal con-
tractors and subcontractors.  Compare Missouri, 142 S. Ct. at 653 
(noting that requiring vaccination as a response to the pandemic “is 
not a surprising [response]”), with Ala. Ass’n of Realtors v. Dep’t of 
Health & Human Servs., 141 S. Ct. 2485, 2489 (2021) (expressing 
surprise that the CDC was regulating evictions and wondering if 
anything would be outside the CDC’s authority based on its rea-
soning).  Requiring a vaccination in the midst of an ongoing pan-
demic would not have been surprising to the 1949 Congress.  At 
that time, the country was suffering from a polio epidemic.  1955 
Polio, 
Mayo 
Clinic 
(last 
visited 
May 
24, 
2022), 
 
4 In assessing whether Congress has delegated the challenged authority, and 
the clarity thereof, both the Supreme Court—West Virginia, 142 S. Ct. at 2613; 
Missouri, 142 S. Ct. at 653—and this Court, Florida, 19 F.4th at 1288, have 
evaluated whether the exercise of the challenged authority was “surprising.” 
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21-14269 ANDERSON, J., concurring in part & dissenting in part 19 
 
https://www.mayoclinic.org/coronavirus-covid-19/history-dis-
ease-outbreaks-vaccine-timeline/polio.  While 1949 was shortly 
before the polio vaccine was widely available, there were precursor 
vaccines invented before 1949. Polio, History of Vaccines (last vis-
ited May 24, 2015),  https://historyofvaccines.org/history/po-
lio/timeline.  Moreover, in 1905, the Supreme Court found that 
mandated vaccination was permissible under the Due Process 
Clause.  Jacobson v. Massachusetts, 197 U.S. 11, 24–25, 25 S. Ct. 
358, 360–61 (1905).  Thus, the recognition at the time of the Pro-
curement Act’s enactment in 1949 of the fact that the Supreme 
Court had previously upheld vaccination mandates combined with 
the extraordinary nature of the instant pandemic caused by the 
highly contagious COVID-19 disease persuades me that it would 
not have been surprising to the 1949 Congress for the President—
faced with this extraordinary situation—to impose a vaccination 
requirement on federal contractors for efficiency reasons.   
In sum, even applying the major questions doctrine, the 
President’s exercise of authority here was clearly authorized.  First, 
the statutory language clearly authorizes the President to contract 
for services to perform government work and prescribe directives 
such that the procurement work will be done economically and ef-
ficiently.  This provides clear congressional authorization for the 
instant EO—especially in light of the longstanding practice of pre-
vious Presidents, whose executive orders having considerably 
lesser nexus to the statutory language have been repeatedly upheld 
by the several Courts of Appeals, and in light of the congressional 
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20 ANDERSON, J., concurring in part & dissenting in part  21-14269 
 
re-enactment with knowledge of that uniform judicial interpreta-
tion.  Second, the congressional grant of power is broad, suggesting 
broad authority.  Third, the exercise of authority is proprietary.  
And of especial significance in this case, the clear authority for a 
President, as proprietor, to choose contractors best suited to com-
plete the government work in a competent and timely manner and 
the close nexus of the instant EO to that clear authority persuade 
me that the clear statement rule of the major questions doctrine is 
satisfied in this case.  In other words, the instant EO is not an exer-
cise of “power beyond what Congress could have reasonably un-
derstood to have granted.”  West Virginia, 142 S. Ct. at 2609. 
Because I believe the Procurement Act clearly authorizes 
the President’s actions here, I would hold that Appellees have failed 
to establish a substantial likelihood of success on the merits.  Thus, 
I believe the district court abused its discretion in granting the in-
junction because it made an error of law.  See Highmark Inc. v. 
Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 n.2, 134 S. Ct. 
1744, 1748 n.2 (2014) (holding that a district court “abuse[s] its dis-
cretion if it based its ruling on an erroneous view of the law” (quot-
ing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 
2447, 2461 (1990))).   
Although I agree with and join Part V of the lead opinion—
holding that the scope of the injunction should be narrowed—I re-
spectfully dissent from the holding that Appellees have shown a 
substantial likelihood of success on the merits. 
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UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 
56 Forsyth Street, N.W. 
Atlanta, Georgia 30303 
David J. Smith 
Clerk of Court  
 
 
August 26, 2022  
For rules and forms visit
www.ca11.uscourts.gov
 
MEMORANDUM TO COUNSEL OR PARTIES 
 
Appeal Number:  21-14269-BB  
Case Style:  State of Georgia, et al v. President of the United States, et al 
District Court Docket No:  1:21-cv-00163-RSB-BKE 
 
Electronic Filing 
All counsel must file documents electronically using the Electronic Case Files ("ECF") system, 
unless exempted for good cause. Although not required, non-incarcerated pro se parties are 
permitted to use the ECF system by registering for an account at www.pacer.gov. Information 
and training materials related to electronic filing are available on the Court's website. Enclosed 
is a copy of the court's decision filed today in this appeal. Judgment has this day been entered 
pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 
41(b).  
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for 
filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise 
provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is 
timely only if received in the clerk's office within the time specified in the rules. Costs are 
governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for 
attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.  
Please note that a petition for rehearing en banc must include in the Certificate of Interested 
Persons a complete list of all persons and entities listed on all certificates previously filed by 
any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be 
reheard must be included in any petition for rehearing or petition for rehearing en banc. See 
11th Cir. R. 35-5(k) and 40-1 .  
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming 
compensation for time spent on the appeal no later than 60 days after either issuance of mandate 
or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via 
the eVoucher system. Please contact the CJA Team at (404) 335-6167 or 
cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher 
system.  
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For questions concerning the issuance of the decision of this court, please call the number 
referenced in the signature block below. For all other questions, please call Tonya L. 
Richardson, BB at (404) 335-6174.  
 
Sincerely, 
 
DAVID J. SMITH, Clerk of Court 
 
Reply to: Djuanna H. Clark 
Phone #: 404-335-6151 
 
OPIN-1 Ntc of Issuance of Opinion 
 
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1955
Polio
History of polio: Outbreaks and vaccine timeline
Learn about polio epidemics and the development, approval and
impact of the polio vaccine.
Children with polio
Children and a teacher with polio participate in a class at Saint Marys Hospital.
1948-1955
Before a polio vaccine became available, several polio epidemics had occurred
between 1948 and 1955. Many people avoided crowds and public gatherings, such as
fairs, sports games and swimming pools, during this time due to concern about getting
polio. Some parents wouldn’t let their children play with new friends and regularly
checked them for symptoms.
At Saint Marys Hospital in Rochester, Minnesota, many people with polio were treated
in the isolation ward. Some people with polio whose breathing muscles were paralyzed
Feedback
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were placed in large machines called iron lungs. These machines helped them breathe
and may have helped them live longer. The hospital was short of medical staff. Doctors,
nurses and others worked long hours during the epidemics.
Iron lung
A man with polio in an iron lung talks with former President Dwight Eisenhower at Saint
Marys Hospital.
1952-1955
Dr. Jonas E. Salk and colleagues research and develop a polio vaccine.
1955
The polio vaccine developed by Dr. Salk and colleagues is licensed in the U.S. Before
the polio vaccine, the disease had been a major cause of disability in children. About
16,000 cases of polio (paralytic poliomyelitis) occurred each year in the U.S. in the 20th
century compared with none in 2020.
The first polio vaccine arrives at Mayo Clinic on April 13, 1955, one day after it’s
licensed in the U.S.
Feedback
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Polio vaccine
Dr. Thomas Magath sits next to the first shipment of the polio vaccine at Mayo Clinic in
1955.
1961
Dr. Albert B. Sabin develops a second polio vaccine that is licensed in the U.S. A third
polio vaccine will be licensed in 1963. These vaccines help control the spread of polio in
industrialized countries.
1994
 is considered eliminated in North and South America.
Polio
SHOW REFERENCES
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2. Blake JB. Benjamin Waterhouse and the introduction of vaccination. Reviews of Infectious Diseases. Oxford
University Press. 1987;doi:10.1093/clinids/9.5.1044.
3. Desmond A, et al. On the shoulders of giants — From Jenner’s cowpox to mRNA Covid vaccines. The New
England Journal of Medicine. 2021; doi:10.1056/NEJMp2034334.
4. Saleh A, et al. Vaccine development throughout history. Cureus. 2021; doi:10.7759/cureus.16635.
5. The history of vaccines. College of Physicians of Philadelphia. https://www.historyofvaccines.org. Accessed Oct. 7,
2021.
6. Stokes J, et al. Trivalent combined measles-mumps-rubella vaccine. JAMA. 1971;218:57.
7. Klein NP. Licensed pertussis vaccine in the United States: History and current state. 2014; doi:10.4161/hv.29576.
Feedback
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8. Influenza historic timeline. Centers for Disease Control and Prevention. https://www.cdc.gov/flu/pandemic-
resources/pandemic-timeline-1930-and-beyond.htm. Accessed Oct. 7, 2021.
9. Poland GA, et al. Development of vaccines against Zika virus. The Lancet. Infectious Diseases. 2018;
doi:10.1016/S1473-3099(18)30063-X.
10. Poland GA, et al. Zika vaccine development: Current status. Mayo Clinic Proceedings. 2019;
doi:10.1016/j.mayocp.2019.05.016.
11. Li YD, et al. Coronavirus vaccine development: From SARS and MERS to COVID-19. Journal of Biomedical
Science. 2020; doi:10.1186/s12929-020-00695-2.
12. Dolgin E. The tangled history of mRNA vaccines. Nature. 2021; doi:10.1038/d41586-021-02483-w.
13. Goodman RA, et al., eds. Vaccination mandates: The public health imperative and individual rights. In: Law in
Public Health Practice. Oxford University Press; 2007.
14. Centers for Disease Control and Prevention. Current trends childhood immunization initiative, United States — 5-
year follow up. MMWR Morbidity and Mortality Weekly Report. 1982;
http://www.cdc.gov/mmwr/preview/mmwrhtml/00001091.htm. Accessed Oct. 7, 2021.
15. Immunization and infectious diseases. HealthyPeople.gov. https://www.healthypeople.gov/2020/topics-
objectives/topic/immunization-and-infectious-diseases. Accessed Oct. 7, 2021.
16. The history of vaccines. History of the immunization schedule. College of Physicians of Philadelphia.
https://www.historyofvaccines.org/content/history-immunization-schedule. Accessed Oct. 7, 2021.
17. NNDS surveillance materials and resources. Centers for Disease Control and Prevention.
https://www.cdc.gov/ncird/surveillance/materials-resources.html. Accessed Oct. 7, 2021.
18. Roush SW, et al. Historical comparisons of morbidity and mortality for vaccine-preventable disease in the United
States. JAMA. 2007;doi:10.1001/jama.
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298.18.2155
19. Poland GA (expert opinion). Mayo Clinic. Sept. 17, 2021.
20. Vaccine effectiveness: How well do flu vaccines work? Centers for Disease Control and Prevention.
https://www.cdc.gov/flu/vaccines-work/vaccineeffect.htm. Accessed Oct. 8, 2021.
21. 1918 pandemic influenza timeline. Centers for Disease Control and Prevention.
https://www.cdc.gov/flu/pandemic-resources/1918-commemoration/pandemic-timeline-1918.htm. Accessed
Oct. 8, 2021.
22. Safety of COVID-19 vaccines. Centers for Disease Control and Prevention.
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/safety-of-vaccines.html. Accessed Oct. 8, 2021.
23. Understanding mRNA COVID-19 vaccines. Centers for Disease Control and Prevention.
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mRNA.html. Accessed Oct. 8, 2021.
24. COVID-19 vaccines. U.S. Food and Drug Administration. https://www.fda.gov/emergency-preparedness-and-
response/coronavirus-disease-2019-covid-19/covid-19-vaccines. Accessed Oct. 12, 2021.
Feedback
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25. Poland GA, et al. The age-old struggle against the antivaccinationists. The New England Journal of Medicine. 2011;
doi:10.1056/NEJMp1010594.
26. Clapesattle H. The Doctors Mayo. The University of Minnesota Press; 1941.
27. Saint Mary’s isolation hospital during the influenza pandemic. Saint Marys Hospital Annals; 1918.
28. Harren R. Olmsted country in the grippe of Spanish influenza. The Scribe. History Center of Olmsted Country.
2018.
29. Strand PK. A Century of Caring: 1889-1989. Saint Marys Hospital; 1988.
30. Mayo Clinic: The battle plan for H1N1. Mayo Alumni Magazine; 2009.
31. First polio vaccine delivery. MayoVox. Mayo Clinic; 1955.
32. Rosenow EC. Prophylactic inoculation against respiratory infections during the present pandemic of influenza:
Preliminary report. Mayo Clinic; 1918.
33. Rules concerning the report of contagious diseases. The Clinic Bulletin. 1919;1;1.
34. Maltezou HA, et al. Immunization of health-care providers: Necessity and public-health policies. Healthcare.
2016; doi: 10.3390/healthcare4030047.
35. Voigt EA, et al. Defending against smallpox: A focus on vaccines. Expert Review of Vaccines. 2016;
doi:10.1080/14760584.2016.1175305.
36. Wright GH, et al. Effect of reduced dose schedules and intramuscular injection of anthrax vaccine adsorbed on
immunological response and safety profile: A randomized trial. Vaccine. 2014; doi:10.1016/j.vaccine.2013.10.039.
37. Spikevax and Moderna COVID-19 vaccine. U.S. Food and Drug Administration. https://www.fda.gov/emergency-
preparedness-and-response/coronavirus-disease-2019-covid-19/spikevax-and-moderna-covid-19-
vaccine#additional. Accessed Feb. 11, 2022.
Any use of this site constitutes your agreement to the Terms and Conditions and Privacy Policy linked below.
A single copy of these materials may be reprinted for noncommercial personal use only. "Mayo," "Mayo Clinic,"
"MayoClinic.org," "Mayo Clinic Healthy Living," and the triple-shield Mayo Clinic logo are trademarks of Mayo
Foundation for Medical Education and Research.
© 1998-2022 Mayo Foundation for Medical Education and Research (MFMER). All rights reserved.
Feedback
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C HAP TERS
01 Polio Arrives to America
02 The Search for a Polio Vaccine
03 The Polio Vaccine Arrives
04 Polio Is Marked for Eradication
C HAP TER 1
Polio Arrives to America
The first polio epidemic in 1894 was just the beginning of a yearly threat to
the public from an unseen threat.
JUNE 17, 1894
First U.S. Polio Epidemic
Polio
Poliomyelitis
An infectious disease that once terrorized parents the world over
is now on the verge of being eradicated.
OVERVIEW
TIMELINE
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1905
Contagious Nature of Polio Discovered
1908
Poliovirus Identified
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In Vienna, Karl Landsteiner, MD (1868-1943), and Erwin Popper, MD (1879-1955),
announced that the infectious agent in polio was a virus.
Popper and Landsteiner deduced the viral nature of polio by carefully filtering
preparations of spinal cord fluid from a person who had died of polio. The filters were
known to trap bacteria. When Popper and Landsteiner injected the filtered preparations
into monkeys, the monkeys developed polio. The researchers then concluded that an
infectious particle smaller than bacteria caused the disease.
Poliovirus itself would not be visible to researchers until the 1950s, when the electron
microscope was available.
Cells showing changes due to a polio infection
Distribution of polio in United States, 1910
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C HAP TER 2
The Search for a Polio Vaccine
The polio virus was unseen and unknown until certain key events helped
pave the way for a vaccine.
JUNE 17, 1916
New York City Polio Epidemic
AUGUST 8, 1921
Polio Strikes FDR
1931
More Than One Type of Poliovirus Proposed
1936
Growing Poliovirus in Human Nervous Tissue
1938
March of Dimes Born
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a c
o
es
o
1941
Poliovirus in Digestive System
1948
Koprowski Tests Polio Vaccine on Himself
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Lederle Laboratories researcher Hilary Koprowski, MD (1916-2013), after testing his attenuated
Type II poliovirus vaccine on chimpanzees, drank a concoction of his vaccine. He and his
assistant, who also took the vaccine, seemed to suffer no ill effects.
Hilary Koprowski, MD
1949
Bodian Finds Three Types of Poliovirus
1952
Polio Cases Surge
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57,628 polio cases were reported in the United States in 1952, a number that heightened
parents’ fears of the disease and focused public awareness on the need for a vaccine.
A girl exercising after polio infection, 1950s
MAY 16, 1953
Salk Gives Vaccine to His Family
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C HAP TER 3
The Polio Vaccine Arrives
Big breakthroughs bring two highly effective and safe vaccines.
Salk injected himself, his wife, and their three sons with his experimental poliovirus
vaccine.
Peter Salk receiving the polio vaccine from his father, Jonas Salk, in 1953  March of Dimes
Foundation
APRIL 25, 1954
Massive Polio Vaccine Trial Begins in U.S.
APRIL 12, 1955
Polio Vaccine Results Announced
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Polio vaccine and workers, 1963  CDC/Mr. Stafford Smith
Thomas Francis Jr., MD, and Jonas E. Salk, MD, at polio evaluation meeting, 1955
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C HAP TER 4
Polio Is Marked for Eradication
Following the footsteps of the smallpox eradication program, the polio
eradication campaign begins with some successes.
In a press conference at the University of Michigan, Thomas Francis Jr., MD (a scientist
with extensive experience with influenza vaccines), and colleagues announced the
results of the Salk poliovirus vaccine trial. The vaccine, they said, was 80-90% effective
against paralytic polio.
The U.S. government licensed Salk’s vaccine later this same day. The press conference
and licensure paved the way for widespread distribution and use of the vaccine.
1959
Soviet Trials of Sabin's Live Poliovirus Vaccine
AUGUST 24, 1960
Sabin's Polio Vaccine Licensed
1985
Goal Set for Polio Elimination in the Americas
1988
Global Polio Eradication Initiative
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Global ol o 
ad cat o  
t at e
SEPTEMBER 29, 1994
Polio Declared Eliminated from the
Americas
On August 20, 1994, the Pan American Health Organization had reported that three
years had passed since the last case of wild polio in the Americas. A three-year-old
Peruvian boy, Luis Fermín, had the last registered case there.
The International Commission for the Certification of Poliomyelitis Eradication in the
Americas examined this report as well as extensively reviewing lab and surveillance data.
This boy, Luis Fermin Tenorio, is the last known case of polio in the Americas. Peru, 1991.
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p
y
g
Based on the results of these analyses, wild poliovirus was declared eliminated from the
Americas in September 1994, making the Americas the first World Health Organization
Region to meet the goal of polio elimination.
1997
Massive Vaccination Efforts in India
1998
Polio Immunization Efforts in Sudan
JUNE 21, 2002
Polio Eliminated in Europe
Fourteen years after the launch of the global eradication program, the World Health
Organization declared polio eliminated in Europe on June 6, 2002.
The last case of wild polio in Europe occurred in a young boy. Melik Minas, who lived in
Turkey, contracted polio in November 1998. Minas, who had not been vaccinated, was
paralyzed as a result of the infection—although he did partially recover.
MARCH 27, 2014
S
th E
t A i R
i
P li
F
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South-East Asia Region Polio-Free
APRIL 17, 2016
Type 2 Oral Polio Vaccine Discontinued
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19 S 22ND STREET
PHILADELPHIA, PA 19103
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