USCA11 Case: 21-14269 Date Filed: 08/26/2022 Page: 1 of 66 [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, USCA11 Case: 21-14269 Date Filed: 08/26/2022 Page: 2 of 66 2 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 USCA11 Case: 21-14269 Date Filed: 08/26/2022 Page: 3 of 66 21-14269 Opinion of the Court 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 USCA11 Case: 21-14269 Date Filed: 08/26/2022 Page: 4 of 66 4 …
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