Kristin Mayes v. Joseph Biden ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN K. MAYES, Attorney No. 22-15518
General; STATE OF ARIZONA; AL
REBLE; PHOENIX LAW D.C. No.
ENFORCEMENT ASSOCIATION; 2:21-cv-01568-
UNITED PHOENIX FIREFIGHTERS MTL
ASSOCIATION LOCAL 493,
Plaintiffs-Appellees, OPINION
v.
JOSEPH R. BIDEN, in his official
capacity as President of the United
States; ALEJANDRO N.
MAYORKAS, in his official capacity
as Secretary of Homeland Security;
U.S. DEPARTMENT OF
HOMELAND SECURITY; TROY A.
MILLER, in his official capacity as
Senior Official Performing the Duties
of the Commissioner of US Customs
and Border Protection; TAE
JOHNSON, in his official capacity as
Senior Official Performing the Duties
of Director of US Immigration and
Customs Enforcement; UR
MENDOZA JADDOU, in her official
capacity as Director of US Citizenship
2 MAYES V. BIDEN
and Immigration Services; OFFICE
OF PERSONNEL MANAGEMENT;
KIRAN AHUJA, in her official
capacity as director of the Office of
Personnel Management and as co-
chair of the Safer Federal Workforce
Task Force; UNITED STATES
GENERAL SERVICES
ADMINISTRATION; SHALANDA
YOUNG, in her official capacity as
Acting Director of the Office of
Management and Budget and as a
member of the Safer Federal
Workforce Task Force; SAFER
FEDERAL WORKFORCE TASK
FORCE; JEFFREY ZIENTS, in his
official capacity as co-chair of the
Safer Federal Workforce Task Force
and COVID-19 Response Coordinator;
L. ERIC PATTERSON, in his official
capacity as Director of the Federal
Protective Service and member of the
SFWTF; JAMES M. MURRAY, in his
official capacity as Director of the
United States Secret Service and
member of the SFWTF; DEANNE
CRISWELL, in her official capacity as
Director of the Federal Emergency
Management Agency and member of
the SFWTF; ROCHELLE
WALENSKY, in her official capacity
as Director of the Centers for Disease
Control and Prevention and member of
MAYES V. BIDEN 3
the SFWTF; CENTERS FOR
DISEASE CONTROL AND
PREVENTION; FEDERAL
ACQUISITION REGULATORY
COUNCIL; MATHEW C. BLUM, in
his official capacity as Chair of the
Federal Acquisition Regulatory
Council and Acting Administrator of
the Office of Federal Procurement
Policy, Office of Management and
Budget; LESLEY A. FIELD, in her
official capacity as a member of the
Federal Acquisition Regulatory
Council and Acting Administrator for
Federal Procurement at the Office of
Federal Procurement Policy, Office of
Management and Budget; KARLA S.
JACKSON, in her official capacity as
a member of the Federal Acquisition
Regulatory Council and Assistant
Administrator for Procurement at the
National Aeronautics and Space
Administration; JEFFREY A. KOSES,
in his official capacity as a member of
the Federal Acquisition Regulatory
Council and Senior Procurement
Executive at the General Services
Administration; JOHN M.
TENAGLIA, in his official capacity as
a member of the Federal Acquisition
Regulatory Council and Principal
Director of Defense Pricing and
Contracting at the Department of
4 MAYES V. BIDEN
Defense; UNITED STATES OF
AMERICA; UNITED STATES
DEPARTMENT OF JUSTICE;
MERRICK B. GARLAND, Attorney
General, in his official capacity as
Attorney General of the United States,
Defendants-Appellants,
______________________________
ARIZONA CHAMBER OF
COMMERCE & INDUSTRY;
FIFTY-SIXTH ARIZONA
LEGISLATURE,
Intervenors.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Argued and Submitted March 7, 2023
Las Vegas, Nevada
Filed April 19, 2023
Before: Richard R. Clifton, Mark J. Bennett, and Roopali
H. Desai, Circuit Judges.
Opinion by Judge Bennett
MAYES V. BIDEN 5
SUMMARY *
Injunction
The panel reversed the district court’s order granting a
permanent injunction and dissolved the injunction, which
had enjoined the President’s “Contractor Mandate”
Executive Order requiring federal contractors who worked
on or in connection with federal government projects to be
vaccinated against COVID-19.
President Biden issued Executive Order 13,991,
establishing the Safer Federal Workforce Task Force that
was charged with providing ongoing guidance concerning
the operation of the Federal Government during the COVID-
19 pandemic. The President invoked his authority under the
Federal Property and Administrative Services Act of 1949
(“Procurement Act”) to direct federal agencies to include in
certain contracts a clause requiring covered contractor
employees to follow COVID-19 safety protocols, including
vaccination requirements, in order for employees to be
eligible to work on federal government projects. Plaintiffs
sued to enjoin the vaccination mandate. This lawsuit
revolves around four documents that comprise the
Contractor Mandate: the Executive Order, the Task Force
Guidance, the Office of Management and Budget
Determination, and the Federal Acquisition Regulatory
Council Guidance.
The district court granted a permanent injunction against
the Contractor Mandate, effective in any contract that either
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
6 MAYES V. BIDEN
involved a party domiciled or headquartered in Arizona
and/or was performed “principally” in Arizona.
The panel considered the first factor of the permanent
injunction inquiry: actual success on the merits. First, the
panel held the Major Questions Doctrine—which requires
that Congress speak clearly if it wishes to assign to an
agency decisions of vast economic and political
significance—did not apply. There is no relevant agency
action here, and the doctrine does not apply to actions by the
President. Second, the panel held that even if the Major
Questions Doctrine applied, it would not bar the Contractor
Mandate because the Mandate is not a transformative
expansion of the President’s authority under the
Procurement Act. The Contractor Mandate is not an
exercise of regulatory authority at all, but of proprietary
authority. It is not a “transformative expansion” of any
authority, regulatory or proprietary, to require federal
contractors—amid an unprecedented global pandemic—to
take vaccination-related steps that promote efficiency and
economy by reducing absenteeism, project delays, and cost
overruns. Third, the panel held that the Contractor Mandate
fell within the President’s authority under the Procurement
Act. The panel held that the President was justified in
finding that prescribing vaccination-related steps contractors
must take in order to work on government contracts would
directly promote an economical and efficient “system” for
both procuring services and performing contracts. The
President was authorized by the Act to establish a procedure
by which taxpayer funds used to pay contractors who work
on federal government contracts are only used to pay those
contractors whose relevant employees are vaccinated against
COVID-19. Fourth, the panel held that the nondelegation
doctrine and state sovereignty concerns did not invalidate the
MAYES V. BIDEN 7
Contractor Mandate. Finally, the panel held that the
Contractor Mandate satisfied the Office of Federal
Procurement Policy Act’s procedural requirements. The
panel held that Arizona’s claims under the Administrative
Procedure Act also failed.
Because Arizona failed to satisfy the first prong of the
permanent injunction inquiry—actual success on the
merits—the panel held that it need not analyze whether it had
satisfied the remaining prongs. The panel reversed the
district court’s grant of a permanent injunction and dissolved
the injunction.
COUNSEL
David L. Peters (argued), Anna O. Mohan, and Mark B.
Stern, Appellate Staff Attorneys; Joshua Revesz, Counsel,
Office of the Assistant Attorney General; Brian M. Boynton,
Principal Deputy Assistant Attorney General; United States
Department of Justice; Washington, D.C.; Samuel F.
Callahan, Associate Deputy General Counsel; Shraddha A.
Upadhyaya, Associate General Counsel; Arpit K. Garg,
Deputy General Counsel; Daniel F Jacobson, General
Counsel; Office of Management and Budget; Washington,
D.C.; for Defendants-Appellants.
Alexander W. Samuels (argued), Deputy Attorney General;
James K. Rogers, Senior Litigation Counsel; Drew C.
Ensign, Deputy Solicitor General; Joseph A. Kanefield,
Chief Deputy & Chief of Staff; Mark Brnovich, Attorney
General of Arizona; Office of the Arizona Attorney General;
Phoenix, Arizona; Hannah H. Porter and Kevin E. O’Malley,
Gallagher and Kennedy, Phoenix, Arizona; for Plaintiffs-
Appellees Mark Brnovich and State of Arizona.
8 MAYES V. BIDEN
Dennis I. Wilenchifk, Wilenchik & Bartness PC, Phoenix,
Arizona, for Plaintiff-Appellee Al Reble.
Michael Napier, Napier Abdo Coury & Baillie PC, Phoenix,
Arizona, for Plaintiff-Appellee Phoenix Law Enforcement
Association and United Phoenix Firefighters Association
Local 493.
Michael G. Bailey (argued), Tully Bailey LLP, Phoenix,
Arizona, for Intervenor Arizona Chamber of Commerce &
Industry.
Kory Langhofer (argued) and Thomas J. Basile, Statecraft
PLLC, Phoenix, Arizona, for Intervenor Fifty-Sixth Arizona
Legislature.
Natalie P. Christmas, Assistant Attorney General of Legal
Policy; James H. Percival, Deputy Attorney General of
Legal Policy; Henry C. Whitaker, Solicitor General; Ashley
Moody, Attorney General of Florida; Office of the Florida
Attorney General; Tallahassee, Florida; for Amici Curiae the
States of Florida, Alabama, Alaska, Arkansas, Georgia,
Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Montana, Nebraska, New Hampshire,
North Dakota, Ohio, Oklahoma, South Carolina, South
Dakota, Tennessee, Texas, Utah, Virginia, and West
Virginia.
Daryl Joseffer and Stephanie A. Maloney, United States
Chamber Litigation Center, Washington, D.C.; Steven P.
Lehotsky, Gabriela Gonzalez-Araiza, and Adam Steene,
Lehotsky Keller LLP, Washington, D.C.; Matthew H.
Frederick, Lehotsky Keller LLP, Austin, Texas; for Amicus
Curiae the Chamber of Commerce of the United States of
America.
MAYES V. BIDEN 9
OPINION
BENNETT, Circuit Judge:
The purpose of the Federal Property and Administrative
Services Act of 1949 (“Procurement Act”), 40 U.S.C. § 101et seq., “is to provide the Federal Government with an
economical and efficient system for . . . [p]rocuring and
supplying property and nonpersonal services, and . . .
contracting,” id. § 101(1). “The President may prescribe
policies and directives that the President considers necessary
to carry out” the Procurement Act, so long as they are
“consistent” with the Act. Id. § 121(a). President Biden was
justified in concluding that requiring federal contractors who
worked on or in connection with federal government projects
to be vaccinated against COVID-19 would promote
economy and efficiency in federal contracting. Because the
district court erred in enjoining the President’s “Contractor
Mandate” Executive Order, we dissolve the injunction
entered by the district court.
In the midst of the COVID-19 pandemic—and faced
with a rising death toll and lost work hours during a
recession—the President invoked his authority under the
Procurement Act. He used that authority to direct federal
agencies to include in certain contracts a clause requiring
covered contractor employees to follow COVID-19 safety
protocols, including vaccination requirements, for
employees to be eligible to work on federal government
projects. The President’s delegated executive officer found
that requiring vaccination against COVID-19 would reduce
absenteeism, lower cost overruns, and prevent delays on
government projects. Determination of the Acting OMB
Director Regarding the Revised Safer Federal Workforce
10 MAYES V. BIDEN
Task Force Guidance for Federal Contractors and the
Revised Economy & Efficiency Analysis, 86 Fed. Reg.
63,418, 63,418 (Nov. 16, 2021) (“OMB Determination”).
Plaintiffs sued to enjoin the vaccination requirement.
The district court granted a permanent injunction against the
Contractor Mandate, effective in any contract that either
involved a party domiciled or headquartered in Arizona
and/or was performed “principally” in Arizona. The federal
government appealed. We stayed the district court’s
injunction pending resolution of this appeal. Dkt. No. 70.
We have jurisdiction under 28 U.S.C. §§ 1291 and
1292(a)(1). We REVERSE the district court’s grant of a
permanent injunction and dissolve the injunction.
I. BACKGROUND
A. Statutory Framework
1. The Procurement Act
This dispute involves two provisions of the Procurement
Act:
§ 101. Purpose
The purpose of this subtitle is to provide the
Federal Government with an economical and
efficient system for the following activities:
(1) Procuring and supplying property and
nonpersonal services, and performing related
functions including contracting . . . .
40 U.S.C. § 101.
MAYES V. BIDEN 11
§ 121. Administrative
(a) Policies prescribed by the President. –
The President may prescribe policies and
directives that the President considers
necessary to carry out this subtitle. The
policies must be consistent with this subtitle.
Id. § 121.
2. The Procurement Policy Act
The Office of Federal Procurement Policy Act
(“Procurement Policy Act”), 41 U.S.C. § 1707, 1 states that a
“procurement policy, regulation, procedure, or form . . . may
not take effect until 60 days after it is published for public
comment in the Federal Register” if it “relates to the
expenditure of appropriated funds” and either “has a
significant effect beyond the internal operating procedures
of the agency issuing the policy, regulation, procedure, or
form” or “has a significant cost or administrative impact on
contractors or offerors.” Id. § 1707(a)(1).
The Procurement Policy Act’s requirements apply to
specific “executive agenc[ies].” Id. § 1707(c)(1). But “[i]f
urgent and compelling circumstances make compliance with
the [notice and comment] requirements impracticable,” the
officer authorized to issue the procurement policy may
waive them. Id. § 1707(d).
1
In addition to the substantive challenges to the Contractor Mandate that
Arizona asserted related to the Procurement Act, Arizona also asserted
procedural challenges under the Procurement Policy Act.
12 MAYES V. BIDEN
B. Organizational Framework
On his first day in office, President Biden issued
Executive Order 13,991, establishing the Safer Federal
Workforce Task Force (“Task Force”). Protecting the
Federal Workforce and Requiring Mask-Wearing, 86 Fed.
Reg. 7,045, 7,046 (Jan. 25, 2021). Executive Order 13,991
charged the Task Force with “provid[ing] ongoing guidance
to heads of agencies on the operation of the Federal
Government, the safety of its employees, and the continuity
of Government functions during the COVID-19 pandemic.”
Id.The Office of Federal Procurement Policy is part of the
Office of Management and Budget (“OMB”). 41 U.S.C.
§ 1101(a). Congress has authorized it to “provide overall
direction of Government-wide procurement policies . . . and
promote economy, efficiency, and effectiveness in the
procurement of property and services.” Id. § 1101(b).
Congress also created the Federal Acquisition
Regulatory Council (“FAR Council”). 41 U.S.C. § 1302(a).
The Administrator of the Office of Federal Procurement
Policy chairs the FAR Council and provides guidance on
how agencies should obtain full and open competition in
contracting. See id. §§ 1121, 1122(a)(1)–(2), 1302(b). The
FAR Council promulgates the Federal Acquisition
Regulation (“FAR”), id. § 1303, which contains standard
provisions that are included in certain government contracts,
see 48 C.F.R. §§ 1.000–53.300.
MAYES V. BIDEN 13
C. Factual Background
There have been over 760 million confirmed cases of
COVID-19 worldwide, 2 and more than 100 million such
cases in the United States. 3 The disease has caused over 6.8
million deaths around the world. 4 More than 1.1 million of
those deaths have been in the United States. 5 Since January
2020, a state of public health emergency has been in effect
in the United States because of the disease. 6
The COVID-19 pandemic has also had profound
economic effects. The pandemic triggered the greatest
worldwide recession since the end of World War II. 7 The
United States Census Bureau concluded that the pandemic’s
initial impact on the U.S. economy was “more widespread
2
World Health Organization, Coronavirus (COVID-19) Dashboard,
https://covid19.who.int (last visited Apr. 11, 2023) (hereinafter “Global
WHO Dashboard”).
3
World Health Organization, Coronavirus (COVID-19) Dashboard:
United States of America, https://covid19.who.int/region/amro/country/
us (last visited Apr. 11, 2023) (hereinafter “United States WHO
Dashboard”).
4
Global WHO Dashboard, supra note 2.
5
United States WHO Dashboard, supra note 3.
6
The state of emergency will expire at the end of day on May 11, 2023.
See Exec. Off. of the President, Statement of Administration Policy Re:
H.R. 382 & H.J. Res. 7 (Jan. 30, 2023).
7
Eduardo Levy Yeyati & Federico Filippini, Social and Economic
Impact of COVID-19 (Brookings Inst., Brookings Global Working Paper
#158, 2021), at 1, https://www.brookings.edu/research/social-and-
economic-impact-of-covid-19/.
14 MAYES V. BIDEN
than on mortality.” 8 It “caused the biggest blow to the U.S.
economy since the Great Depression.” 9 Just a year into the
pandemic, the cost of lost work hours in the United States
associated with the pandemic had exceeded $100 billion.10
In response, and once COVID-19 vaccinations were
widely available and deemed safe and effective, the
President issued an executive order requiring federal
contractors’ employees to get vaccinated if they work on or
in connection with federal government contracts or work in
the same workplace as such employees. This lawsuit
revolves around four documents that together comprise the
“Contractor Mandate”: (1) the Executive Order, (2) the Task
Force Guidance, (3) the OMB Determination, and (4) the
FAR Council Guidance.
1. The Executive Order
In September 2021, President Biden issued Executive
Order 14,042, Ensuring Adequate COVID Safety Protocols
for Federal Contractors. 86 Fed. Reg. 50,985 (Sept. 14,
2021) (“EO”). The EO was issued pursuant to the
Procurement Act to “promote[] economy and efficiency in
8
U.S. Census Bureau, Pandemic Impact on Mortality and Economy
Varies Across Age Groups and Geographies (Mar. 8, 2021),
https://www.census.gov/library/stories/2021/03/initial-impact-covid-
19-on-united-states-economy-more-widespread-than-on-mortality.html.
9
Lucia Mutikani, What to Know About the Report on America’s COVID-
Hit GDP, World Economic Forum (July 31, 2020),
https://www.weforum.org/agenda/2020/07/covid-19-coronavirus-usa-
united-states-econamy-gdp-decline/.
10
Abay Asfaw, Cost of Lost Work Hours Associated with the COVID-19
Pandemic―United States, March 2020 Through February 2021, 65 AM.
J. INDUS. MED. 20, 27 (2022).
MAYES V. BIDEN 15
Federal procurement by ensuring that the parties that
contract with the Federal Government provide adequate
COVID-19 safeguards to their workers performing on or in
connection with a Federal Government contract or contract-
like instrument.” Id. at 50,985.
The EO directs executive agencies subject to the
Procurement Act to include, in qualifying federal
contracts, 11 a clause requiring contractors to comply with
guidance that would subsequently be issued by the Task
Force. Id. 12 The Task Force was directed to issue its
guidance by September 24, 2021. Id. The EO states that,
before the deadline, the OMB Director “shall, as an exercise
of the delegation of my authority under the [Procurement]
Act, see 3 U.S.C. § 301, determine whether such Guidance
will promote economy and efficiency in Federal contracting
if adhered to by Government contractors.” Id. at 50,985–86.
The EO further instructs the FAR Council to amend the
FAR to include the same COVID-19 safety clause. Id. at
50,986. It states that “agencies are strongly encouraged, to
the extent permitted by law,” to seek to modify existing
contracts to include the COVID-19 safety clause. Id. at
50,987.
2. The Task Force Guidance
On September 24, 2021, in accordance with the
President’s deadline, the Task Force issued its initial
11
We use the term “contracts” to also include the “contract-like
instruments” referenced in the EO. Accord Georgia v. President of the
U.S., 46 F.4th 1283, 1290 n.1 (11th Cir. 2022).
12
The EO extends to subcontractors “at any tier.” 86 Fed. Reg. at
50,985. Hence, we use the term “contractors” to include both contractors
and subcontractors. Accord Georgia, 46 F.4th at 1290 n.1.
16 MAYES V. BIDEN
guidance for federal contractor and subcontractor work
locations. The guidance was updated on November 10,
2021, and states, in relevant part:
Covered contractors must ensure that all
covered contractor employees are fully
vaccinated for COVID-19, unless the
employee is legally entitled to an
accommodation. Covered contractor
employees must be fully vaccinated no later
than January 18, 2022. After that date, all
covered contractor employees must be fully
vaccinated by the first day of the period of
performance on a newly awarded covered
contract, and by the first day of the period of
performance on an exercised option or
extended or renewed contract when the
clause has been incorporated into the covered
contract.
Safer Federal Workforce Task Force, COVID-19 Workplace
Safety: Guidance for Federal Contractors and
Subcontractors 5 (updated Nov. 10, 2021) (“Task Force
Guidance”). 13
The Task Force Guidance defines “covered contractor
employee” as “any full-time or part-time employee of a
covered contractor working on or in connection with a
covered contract or working at a covered contractor
workplace.” Id. at 3. The definition extends to employees
13
Available at https://www.saferfederalworkforce.gov/downloads/Guid
ance%20for%20Federal%20Contractors_Safer%20Federal%20Workfo
rce%20Task%20Force_20211110.pdf.
MAYES V. BIDEN 17
who were “not themselves working on or in connection with
a covered contract.” Id. A “covered contractor workplace”
excludes a covered employee’s residence but encompasses
any location “controlled by a covered contractor at which
any employee of a covered contractor working on or in
connection with a covered contract is likely to be present
during the period of performance for a covered contract.” Id.
at 4. The Task Force Guidance includes exceptions for
otherwise-covered employees who are not vaccinated
against COVID-19 because of a disability (including
medical conditions) or a “sincerely held religious belief,
practice, or observance.” Id. at 5.
3. The OMB Determination
On November 10, 2021, the Acting OMB Director—
exercising power delegated under § 2(c) of the EO—
determined that the Task Force Guidance would promote
economy and efficiency in federal contracting. OMB
Determination, 86 Fed. Reg. at 63,418. The Acting OMB
Director reasoned that the Task Force Guidance would
“decrease the spread of COVID-19, which will in turn
decrease worker absence, save labor costs on net, and
thereby improve efficiency in Federal contracting.” Id. at
63,421. The OMB Determination also explained how
COVID-19 infections “impose[] significant costs on
contractors and the federal government,” and how
vaccination against COVID-19 “reduces net costs.” Id. at
63,421–22 (bolding and capitalization omitted). 14
14
The Acting OMB Director had previously issued a determination
reaching the same conclusion but with less detail. See generally 86 Fed.
Reg. 53,691 (Sep. 28, 2021). The November 10 OMB Determination
“rescind[ed] and supersede[d]” that prior determination. 86 Fed. Reg. at
63,418.
18 MAYES V. BIDEN
4. The FAR Council Guidance
On September 30, 2021, the FAR Council—in accord
with § 3(a) of the EO—issued guidance on how to include
the COVID-19 safety clause in new contracts and
solicitations. See generally Memorandum from FAR
Council to Chief Acquisition Officers, et al., Issuance of
Agency Deviations to Implement Executive Order 14042
(Sept. 30, 2021) (“FAR Council Guidance”). 15 The FAR
Council Guidance includes a sample clause that implements
the COVID-19 vaccination requirement. Id. at 4–5.
D. Proceedings Below
The State of Arizona and then-Attorney General Mark
Brnovich (“Arizona”) filed a lawsuit challenging the EO on
September 14, 2021—the date the EO was published. Once
the scope of the Contractor Mandate became clear, Arizona
amended its complaint to also challenge the Task Force
Guidance, OMB Determination, and FAR Council
Guidance, and filed a motion for a preliminary injunction. 16
All plaintiffs 17 filed a renewed motion for a preliminary
injunction with the Second Amended Complaint.
In January 2022, the district court issued an order
granting plaintiffs’ request for a preliminary injunction. See
15
Available at https://www.whitehouse.gov/wp-content/uploads/2021/0
9/FAR-Council-Guidance-on-Agency-Issuance-of-Deviations-to-Imple
ment-EO-14042.pdf.
16
A federal employee joined the amended complaint and motion for a
preliminary injunction.
17
Two Arizona public sector unions also joined Arizona and the federal
employee, see note 16 supra, as plaintiffs, asserting claims against
Defendant City of Phoenix, a federal contractor, for implementing the
Contractor Mandate.
MAYES V. BIDEN 19
generally Brnovich v. Biden, 562 F. Supp. 3d 123 (D. Ariz.
2022). The district court first held that Arizona had standing
to challenge the Contractor Mandate because of its
proprietary interests (its contracts with the federal
government) and its sovereign interests (its own vaccination
policies). See id. at 142–47.
Next, the district court concluded that the Contractor
Mandate exceeded the President’s statutory authority under
the Procurement Act. See id. at 150–57. The court reasoned
that allowing the Mandate to go into effect would allow the
President to enact any policy, “no matter how tenuous[ly]”
connected to “the broad goals of achieving economy and
efficiency in federal procurement.” Id. at 152. The court
also concluded that the Contractor Mandate is a public health
measure, not a procurement policy. See id. at 153–54. It
held that the Procurement Act does not clearly authorize the
passage of such a measure, because “[w]e expect Congress
to speak clearly when authorizing [the executive branch] to
exercise powers of ‘vast economic and political
significance.’” Id. at 153 (second alteration in original)
(quoting Alabama Ass’n of Realtors v. Dep’t of Health &
Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam)).
The court then concluded that, as many Arizona agencies
are federal contractors, Arizona would suffer irreparable
harm from implementing the Contractor Mandate in the form
of (1) lost contracts, funds, and employees; (2) “compliance
and monitoring costs”; and (3) the purported conflict
between the Mandate and Arizona’s vaccination laws. Id. at
165. The court found that the balance of harms and public
interest weighed in favor of an injunction because “issuing
an injunction here would do [the government] little harm” as
the President could “recommend vaccination among
contractors” rather than mandating it. Id. at 166. The court
20 MAYES V. BIDEN
rejected Arizona’s proposal for a nationwide injunction,
reasoning that “[e]quitable remedies should redress only the
injuries sustained by a particular plaintiff in a particular
case.” See id. at 166–67. 18
In February 2022, the district court issued a permanent
injunction barring the federal government from enforcing
the Contractor Mandate in any contract (i) “to which a
contracting party [was] domiciled in or headquartered in the
State of Arizona” or (ii) “to be performed principally in the
State of Arizona.” 19 The court also issued a final judgment
18
The court instructed Arizona to submit a proposed form of permanent
injunction. Id. at 167.
19
Until the district court’s permanent injunction, the Contractor Mandate
was not otherwise prohibited from implementation in Arizona. While
the Mandate had already been challenged in various courts across
different circuits, and several of those courts had enjoined the Mandate,
none of those injunctions covered contracting parties domiciled in or
headquartered in Arizona or contracts to be performed principally in
Arizona. See Louisiana v. Biden, 55 F.4th 1017, 1019, 1021 (5th Cir.
2022) (preliminary injunction covering Indiana, Louisiana, and
Mississippi); Georgia v. President of the United States, 46 F.4th 1283,
1289, 1291 (11th Cir. 2022) (preliminary injunction covering Alabama,
Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia);
Commonwealth v. Biden, 57 F.4th 545, 557 (6th Cir. 2023) (limiting the
already-granted preliminary injunction to the named parties); Missouri
v. Biden, 576 F. Supp. 3d 622, 635 (E.D. Mo. 2021) (preliminary
injunction covering Alaska, Arkansas, Iowa, Missouri, Montana,
Nebraska, New Hampshire, North Dakota, South Dakota, and
Wyoming); State v. Nelson, 576 F. Supp. 3d 1017, 1040 (M.D. Fla. 2021)
(preliminary injunction covering Florida); but see Order, State v. Nelson,
8:21-cv-02524-SDM-TGW, ECF No. 48 (Nov. 9, 2022) (granting stay
pending appeal until March 31, 2023); Joint Status Report, ECF No. 49
(Mar. 29, 2023) (jointly proposing a continuation of the stay until May
25, 2023).
MAYES V. BIDEN 21
pursuant to Federal Rule of Civil Procedure 54(b). 20 The
federal government appealed. 21
After oral argument, we stayed the district court’s
permanent injunction. Dkt. No. 70. We issued the stay
“pursuant to Fed. R. Civ. P. 62(g) and . . . until we issue[d]
an opinion on the merits of this appeal.” Id.II. STANDARD OF REVIEW
We review the district court’s decision to grant a
permanent injunction for an abuse of discretion. Gonzalez
v. U.S. Immigr. & Customs Enf’t, 975 F.3d 788, 802 (9th Cir.
2020). We review determinations underlying the injunction
under three standards: “factual findings for clear error, legal
conclusions de novo, and the scope of the injunction for
abuse of discretion.” United States v. Washington, 853 F.3d
946, 962 (9th Cir. 2017).
20
The district court dismissed the plaintiffs’ claims challenging a
different Executive Order, which required COVID-19 vaccinations for
federal employees. The district court also dismissed (without prejudice)
the federal employee plaintiff’s claims because they were nonjusticiable,
and dismissed with prejudice the unions’ claims.
21
After briefing was completed in this case, the State of Arizona elected
a new Attorney General, Kristin Mayes. AG Mayes informed the court
that Arizona would no longer pursue certain arguments it had previously
made. However, Arizona would continue to defend the district court’s
core holding that the Contractor Mandate exceeded the defendants’
authority under the Procurement Act and that the equitable factors for
injunctive relief were met. Shortly thereafter, the Arizona Legislature,
the Speaker of the Arizona House of Representatives, the President of
the Arizona Senate, and the Arizona Chamber of Commerce & Industry
filed an emergency motion to intervene, seeking to continue to assert the
“abandoned” positions. We granted permissive intervention to the
Arizona Legislature and the Arizona Chamber of Commerce & Industry,
and the Intervenors participated in oral argument.
22 MAYES V. BIDEN
A plaintiff seeking a permanent injunction must
establish: “(1) actual success on the merits; (2) that it has
suffered an irreparable injury; (3) that remedies available at
law are inadequate; (4) that the balance of hardships justify
a remedy in equity; and (5) that the public interest would not
be disserved by a permanent injunction.” Indep. Training &
Apprenticeship Program v. Cal. Dep’t of Indus. Relations,
730 F.3d 1024, 1032 (9th Cir. 2013) (citing eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). When
the United States is a party, the balance of the equities and
public interest factors merge. Cf. Drakes Bay Oyster Co. v.
Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (noting the
merging of the two factors in a preliminary injunction
analysis).
III. DISCUSSION
On appeal, no party challenges the district court’s
finding that Arizona has Article III standing because of its
proprietary interests. The district court did not err—let alone
clearly err—in its factual finding that Arizona is “likely to
suffer direct injury as a result of the Contractor Mandate.”
Brnovich, 562 F. Supp. 3d at 143. To compete for and work
on federal government contracts, Arizona would have to
comply with the Contractor Mandate. We therefore move
on to whether Arizona has satisfied the first factor of the
permanent injunction inquiry: actual success on the merits. 22
22
Because Arizona suffers a direct injury sufficient to confer standing,
we do not need to determine whether Arizona has also suffered injury to
its “sovereign” interests.
MAYES V. BIDEN 23
A. The Major Questions Doctrine does not apply. 23
1. The doctrine does not apply to actions by the
President.
The Major Questions Doctrine has evolved over the
years, but in its current form, it requires “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 (2014) (emphasis
added) (quoting FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 160 (2000)).
But there is no relevant agency action here. Through the
Procurement Act, Congress delegated to the President the
authority to “prescribe policies and directives that the
President considers necessary” to “provide the Federal
Government with an economical and efficient system” for
“[p]rocuring . . . property and nonpersonal services, and
performing related functions including contracting.” 40
U.S.C. §§ 101, 121. The Major Questions Doctrine is
motivated by skepticism of agency interpretations that
“would bring about an enormous and transformative
expansion in . . . regulatory authority without clear
congressional authorization.” UARG, 573 U.S. at 324.
Those concerns are not implicated here as the President
“does not suffer from the same lack of political
accountability that agencies may, particularly when the
23
Arizona has purported to no longer pursue its Major Questions
Doctrine argument. The Intervenors continue to advance it. Regardless,
we independently determine whether the Major Questions Doctrine bars
the Contractor Mandate. See Kamen v. Kemper Fin. Servs., Inc., 500
U.S. 90, 99 (1991) (“[T]he court is not limited to the particular legal
theories advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing law.”).
24 MAYES V. BIDEN
President acts on a question of economic and political
significance.” Georgia, 46 F.4th at 1313 (Anderson, J.,
concurring in part and dissenting in part) (emphasis added);
see also Louisiana, 55 F.4th at 1038 (Graves, J., dissenting)
(same).
Article II provides that “[t]he executive Power shall be
vested in a President,” who must “take Care that the Laws
be faithfully executed.” U.S. Const. art. II, §§ 1–3. “[T]he
Framers made the President the most democratic and
politically accountable official in Government.” Seila L.
LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2203
(2020). This accountability is ensured through regular
elections and “the solitary nature of the Executive Branch,
which provides ‘a single object for the jealousy and
watchfulness of the people.’” Id. (quoting The Federalist
No. 70, at 479 (A. Hamilton) (J. Cooke ed., 1961)). And, of
course, the President does not get a “blank check,” here or
otherwise. First, the President’s actions must be authorized
by and consistent with the Procurement Act. Second, the
Constitution always provides checks on all branches of
government. 24 If we were to determine that the Major
24
One of those checks requires the judicial branch to respect the
constitutional powers of the political branches. See New York v. United
States, 505 U.S. 144, 182 (1992) (“The Constitution’s division of power
among the three branches is violated where one branch invades the
territory of another . . . .”); Myers v. United States, 272 U.S. 52, 116
(1926) (“[T]he reasonable construction of the Constitution must be that
the branches should be kept separate in all cases in which they were not
expressly blended . . . .”).
And allowing the President the necessary discretion to faithfully
execute our laws is a core principle of our government. Free Enter. Fund
v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 493 (2010) (“It is his
responsibility to take care that the laws be faithfully executed. The buck
stops with the President . . . .”).
MAYES V. BIDEN 25
Questions Doctrine prevents the President from exercising
lawfully delegated power, we would be rewriting the
Constitution’s Faithfully Executed Clause in a way never
contemplated by the Framers. We decline to do so.
We recognize that three other circuits have concluded,
without expressly deciding, that the Major Questions
Doctrine applies to presidential action. But the Sixth Circuit
never squarely addressed its reasoning for treating
presidential action the same as agency action. See Kentucky
v. Biden, 23 F.4th 585, 606–08 (6th Cir. 2022) (relying on
circuit precedent involving the Occupational Safety &
Health Administration to equate Congressional requirements
for agency action with those for presidential action).
Similarly, the lead opinion from Eleventh Circuit—while
not labeling its analysis as pursuant to the Major Questions
Doctrine—discussed the “statutory parameters” of
contracting for agencies, but never discussed how or why
such constraints apply to the President. See Georgia, 46
F.4th at 1295–97. And in its opinion upholding a
preliminary injunction enjoining the Contractor Mandate,
the Fifth Circuit similarly held that “delegations to the
President and delegations to an agency should be treated the
same under the major questions doctrine” because the
Constitution “makes a single President responsible for the
actions of the Executive Branch.” Louisiana, 55 F.4th at
1031 n.40 (quoting Seila Law, 140 S. Ct. at 2203).
But that supposed equivalence does not account for how
the two are different, as recognized by the Supreme Court in
its treatment of agencies as different from the President. See,
e.g., Free Enter. Fund, 561 U.S. at 513–14 (holding that the
structure of an independent agency violated the Constitution
because the President, who is “accountable to the people for
executing the laws,” lacked the ability to hold the
26 MAYES V. BIDEN
independent agency accountable). Far from assuming the
President is limited in the performance of his duties, the
Supreme Court instead requires an “express statement” to
find that Congress meant to subject the President’s actions
to additional scrutiny. Cf. Franklin v. Massachusetts, 505
U.S. 788, 800–01 (1992) (declining to consider the President
an “agency” under the APA because Congress did not
explicitly subject his actions to review under the statute).
It is perhaps for these reasons that, before our sister
circuits enjoined the Contractor Mandate, the Major
Questions Doctrine had “never been applied to the exercise
of power by the President.” Georgia, 46 F.4th at 1314
(Anderson, J., concurring in part and dissenting in part). We
find that the Doctrine does not apply to Presidential actions
and therefore does not bar the Contractor Mandate.
2. The Contractor Mandate is not a transformative
expansion of regulatory authority.
But even if the Major Questions Doctrine applied to
Presidential actions, it would still not preclude the
Contractor Mandate. Arizona initially argued that the
Doctrine applies here because the Contractor Mandate
satisfies what Arizona described as the Doctrine’s three
“independent triggers”: it (1) involves “a matter of great
‘political significance,’” (2) “seeks to regulate ‘a significant
portion of the American economy,” and (3) “‘intrud[es] into
an area that is the particular domain of state law,’” i.e.,
compulsory vaccination mandates. Arizona relied on Justice
Gorsuch’s concurrence in West Virginia in advancing this
position. W. Virginia v. EPA, 142 S. Ct. 2587, 2620–21
(2022) (Gorsuch, J., concurring).
However, the majority in West Virginia described the
effect of the EPA action in that case as “restructur[ing] the
MAYES V. BIDEN 27
American energy market” because it “represent[ed] a
‘transformative expansion in [its] regulatory authority.’” Id.
at 2610 (quoting UARG, 573 U.S. at 324) (third alteration in
original) (emphasis added). We do not read that sentence to
mean that restructuring a sector or seeking to regulate a
significant portion of the American economy is sufficient by
itself to trigger the Major Questions Doctrine. But even if
that were sufficient, no part of the Contractor Mandate
represents an “enormous and transformative expansion in
. . . regulatory authority.” UARG, 573 U.S. at 324.
First, the Contractor Mandate is not an exercise of
regulatory authority at all, but of proprietary authority. The
district court concluded that the Mandate is a regulatory
public health measure, not a proprietary procurement policy.
See Brnovich, 562 F. Supp. 3d at 153–54. But nothing in the
Mandate constitutes a regulation. And its broad scope alone
does not make it regulatory. 25
It is true that “[a]n exercise of proprietary authority can
amount to a regulation if it seeks to regulate conduct
unrelated to the government’s proprietary interests.”
Georgia, 46 F.4th at 1314 n.3 (Anderson, J., concurring in
25
The Fifth Circuit relied on the broad scope of the Contractor Mandate
to conclude that it is regulatory. Louisiana, 55 F.4th at 1032–33 (stating
that “[t]here is little internal about a mandate which encompasses even
employees whose sole connection to a federal contract is a cubicle in the
same building as an employee working ‘in connection with’ a federal
contract” (internal quotation marks and footnote omitted)). But we
believe that is not the correct inquiry for whether conduct is regulatory.
Because the federal government contracts with approximately one-fifth
of the American workforce, almost any procurement policy will have
“external” effects. See U.S. Dep’t of Labor, History of Executive Order
11246, https://www.dol.gov/agencies/ofccp/about/executive-order-1124
6-history (last visited Apr. 11, 2023).
28 MAYES V. BIDEN
part and dissenting in part) (emphasis added). But the
conduct that the Contractor Mandate seeks to regulate is
related to the government’s proprietary interest here:
efficient and economic procurement of services. The
Contractor Mandate requires vaccination of all contractor
employees who will work on or in connection with a covered
contract. It also imposes that requirement on employees in
the same workplace as a covered contractor employee,
presumably because of the way a contagious disease such as
COVID-19 spreads. Id. (Anderson, J., concurring in part and
dissenting in part); see also S. Bay United Pentecostal
Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts,
C.J., concurring in denial of application for injunctive relief)
(“Because people may be infected but asymptomatic, they
may unwittingly infect others [with COVID-19].”). To
some, the requirement may appear overinclusive; 26 to others,
it may seem underinclusive. But even if the Contractor
Mandate were overinclusive or underinclusive (or both), that
would not mean it is unrelated to efficient and economic
procurement of services.
The government, as it does every day, drew certain lines.
Perfection in line-drawing is not required. Cf. Dandridge v.
Williams, 397 U.S. 471, 484–85 (1970) (discussing how “the
concept of ‘overreaching’” has “no place” in analysis of a
“regulation in the social and economic field”). And
imperfect over- or under-inclusiveness does not mean that
the authority being exercised is regulatory rather than
26
The Contractor Mandate could cover employees who never interact
directly with an employee working on a federal contract. That possible
over-inclusiveness does not somehow render the Mandate legally infirm.
MAYES V. BIDEN 29
proprietary. Nor does it give courts the authority to redraw
those lines.
Second, the Contractor Mandate is not a “transformative
expansion” of any authority—regulatory or proprietary.
Arizona, the district court, and other circuits raise alarms
about how the federal government has never sought, under
the authority of the Procurement Act, to regulate the health
decisions of American workers or to “reduc[e] absenteeism.”
Brnovich, 562 F. Supp. 3d at 152–53 (“Nor has the President,
in the seventy years since the Procurement Act was enacted,
ever used his authority under the Act to effectuate sweeping
public health policy.”); Kentucky, 23 F.4th at 607 (“[W]e
lack . . . a clear statement from Congress that it intended the
President to use a property-and-services procurement act, for
a purpose never-before recognized, to effect major changes
in the administration of public health.”). But this argument
equates inactivity with forbidden activity. See PennEast
Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 2261
(2021) (“[T]he non-use[] of a power does not disprove its
existence.” (citation omitted)). The history of the
Procurement Act, Executive Orders passed under its
authority, and subsequent judicial interpretations
demonstrate that the Contractor Mandate is not a
transformative expansion of the President’s statutory
authority. 27
The Procurement Act was enacted in 1949. As discussed
above, the purpose of the Act is to promote an economical
and efficient system of federal government procurement.
27
Other circuits have recounted this history as well. See Louisiana, 55
F.4th at 1023–27; Kentucky, 23 F.4th at 605–06; Georgia, 46 F.4th at
1299–1301.
30 MAYES V. BIDEN
See Gundy v. United States, 139 S. Ct. 2116, 2127 (2019)
(plurality op.) (noting that a statute’s statement of purpose
“is an appropriate guide to the meaning of the [statute’s]
operative provisions” (alteration in original) (internal
quotation marks and citation omitted)).
“[T]he most prominent use of the President’s authority
under the [Act]” in the first few decades of its existence was
“a series of anti-discrimination requirements for
Government contractors.” Am. Fed’n of Lab. & Cong. of
Indus. Orgs. v. Kahn, 618 F.2d 784, 790–91 (D.C. Cir. 1979)
(en banc). Several Presidents issued Executive Orders
forbidding contractors from discriminating on the basis of
race, creed, color, or national origin. Id. at 790–91, 791 n.33
(citing orders). In Kahn, the en banc D.C. Circuit recognized
that some of these Executive Orders “were issued under the
President’s war powers and special wartime legislation,” but
that “for the period from 1953 to 1964[,] only the
[Procurement Act] could have provided statutory support for
the Executive action.” Id. at 790–91 (emphasis added).
In 1964, the Third Circuit became the first appellate
court to consider these executive actions. See Farmer v.
Philadelphia Elec. Co., 329 F.2d 3 (3d Cir. 1964). The
Farmer court ruled that the President had the authority to
issue the orders under the Procurement Act. Id. at 8 (“In
view of the [Procurement Act], we have no doubt that the
applicable executive orders and regulations have the force of
law.”). 28 Three years later, the Fifth Circuit also declined to
28
Farmer also relied on the Defense Production Act of 1950 for statutory
authorization. See 329 F.2d at 7–8. However, the Farmer court made
clear that such reliance was in addition to the Procurement Act’s
authority. See id. (quoting provisions of the Procurement Act and
MAYES V. BIDEN 31
hold that an antidiscrimination Executive Order was “so
unrelated” to the Procurement Act’s purpose that it “should
be treated as issued without statutory authority.” Farkas v.
Texas Instrument, Inc., 375 F.2d 629, 632 n.1 (5th Cir.
1967).
In 1971, the Third Circuit upheld an Executive Order
requiring contractors to commit to affirmative action hiring
programs. Contractors Ass’n of E. Pa. v. Sec’y of Lab., 442
F.2d 159, 170 (3d Cir. 1971). The court found the Executive
Order supported by the President’s authority under the
Procurement Act because preventing the federal
government’s suppliers from “increasing its costs and
delaying its programs by excluding from the labor pool
available minority workmen” would improve the economy
and efficiency of federal contracts. Id.In 1979, the en banc D.C. Circuit upheld an Executive
Order by President Carter that required federal contractors
to adhere to price and wage guidelines. Kahn, 618 F.2d at
785. The Kahn court recognized that the Executive Order
had the additional motive of slowing inflation in the
economy, see id. at 792–93, but respected the President’s
calculation that there was a “nexus between the wage and
price standards and likely savings to the Government,” id. at
793.
In 1986 and 1996, Congress recodified the Procurement
Act without any substantive change. 29 In 2001, President
referring to those provisions for statutory authority when finding the
Executive Orders at issue “have the force of law,” id. at 8).
29
Pub. L. No. 99-500, 100 Stat. 1783, 1783-345 (1986); Pub. L. No. 99-
591, 100 Stat. 3341, 3341-345 (1986); Pub. L. No. 104-208, 110 Stat.
3009, 3009-337 (1996).
32 MAYES V. BIDEN
Bush issued an Executive Order that required government
contractors and their subcontractors to post notices at their
facilities informing their employees of certain labor rights.
Exec. Order No. 13,201, 66 Fed. Reg. 11,221, 11,221–22
(Feb. 17, 2001). This was the first Executive Order to
explicitly cite the Procurement Act as its source of authority.
Id. at 11,221; but see Louisiana, 55 F.4th at 1037 (Graves,
J., dissenting) (“Executive Orders are not required to lay out
the specific statute that the President’s authority falls
under.”).
A year later, Congress recodified the Procurement Act 30
with minor changes but clarified that those edits made “no
substantive change in existing law.” Act of August 21, 2002
§ 5(b). This is the Act’s present form as to the provisions
relevant here.
In 2003, the D.C. Circuit upheld the validity of President
Bush’s 2001 Executive Order. UAW-Labor Employment &
Training Corp. v. Chao, 325 F.3d 360, 362 (D.C. Cir. 2003).
President Bush had justified the Executive Order by
asserting a nexus to economy and efficiency because
“[w]hen workers are better informed of their rights, . . . their
productivity is enhanced” and because “[t]he availability of
such a workforce from which the United States may draw
facilitates the efficient and economical completion of its
procurement contracts.” Id. at 366 (quoting 66 Fed. Reg. at
11,221). The D.C. Circuit recognized that the “link may
seem attenuated” but found that there was “enough of a
nexus” to uphold the Order. Id. at 366–67.
30
Pub. L. No. 107-217, 116 Stat. 1062, 1063, 1068 (2002) (“Act of
August 21, 2002”).
MAYES V. BIDEN 33
In 2009, the District Court of Maryland upheld an
Executive Order issued by President Bush requiring federal
contractors to use the E-Verify system to confirm
employees’ compliance with immigration law (“E-Verify
Order”). Chamber of Commerce v. Napolitano, 648 F. Supp.
2d 726, 738 (D. Md. 2009). The district court deferred to the
President’s judgment that contractors with “rigorous
employment eligibility confirmation policies” would be
“more efficient and dependable procurement sources,” id.(quoting Exec. Order No. 13,465, 73 Fed. Reg. 33,285 (June
11, 2008)), and noted that “[t]he President and his
Administration are in a better position than this Court to
make such determinations,” id.Finally, in 2015, President Obama issued an Executive
Order requiring federal contractors to “ensur[e] that
employees on [federal] contracts can earn up to 7 days or
more of paid sick leave annually, including paid leave
allowing for family care.” Exec. Order No. 13,706, 80 Fed.
Reg. 54,697, 54,697 (Sept. 7, 2015). The President justified
the order under the Procurement Act on the following basis:
Providing access to paid sick leave will
improve the health and performance of
employees of Federal contractors and bring
benefits packages at Federal contractors in
line with model employers, ensuring that they
remain competitive employers . . . . These
savings and quality improvements will lead
to improved economy and efficiency in
Government procurement.
Id. This order was not challenged in federal court. See
Georgia, 46 F.4th at 1301.
34 MAYES V. BIDEN
As this history demonstrates, Presidents have used the
Procurement Act to require federal contractors to commit to
affirmative action programs when racial discrimination was
threatening contractors’ efficiency; to adhere to wage and
price guidelines to help combat inflation in the economy; to
ensure compliance with immigration laws; and to attain sick
leave parity with non-contracting employers because federal
contractors were lagging behind and losing talent. It is not a
“transformative expansion” of that same authority to require
federal contractors—amid an unprecedented global
pandemic—to take vaccination-related steps (already
required by many private employers) that promote economy
and efficiency by reducing absenteeism, project delays, and
cost overruns.
Congress’s re-enactment of the Procurement Act is also
instructive. “Congress is presumed to be aware of a[] . . .
judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without
[substantive] change.” Chugach Mgmt. Servs. v. Jetnil, 863
F.3d 1168, 1174 (9th Cir. 2017) (citation omitted); see also
Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys.
Project, Inc., 576 U.S. 519, 536 (2015) (“If a word or phrase
has been given a uniform interpretation by inferior courts, a
later version of that act perpetuating the wording is
presumed to carry forward that interpretation.” (cleaned up)
(quoting A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 322 (2012))). We must
presume that, when recodifying the Act in 2002, Congress
knew that the Third, Fifth, and D.C. Circuits had interpreted
the President’s Procurement Act authority and the statutory
terms “economy” and “efficiency” broadly, and that
President Bush had—just a year prior in 2001—relied on
those terms to issue an Executive Order requiring
MAYES V. BIDEN 35
government contractors to post notices informing their
employees of certain labor rights. 31
Congress’s affirmation of the broad understandings of
those terms through re-enactment adds further weight to our
holding that the Procurement Act supports an exercise of
authority like the Contractor Mandate. Presidents have,
when the need arose, used the Procurement Act in ways they
found necessary to promote economy and efficiency in
federal contracting and procurement. The Contractor
Mandate, which fits well within the Procurement Act’s
historical uses, was not a transformative expansion of the
President’s authority under that Act. 32
31
Since the Procurement Act was last recodified in 2002, we will not
presume Congressional approval of President Bush’s Executive Order
upheld in Chao, the E-Verify Order, or President Obama’s Executive
Order targeting paid sick leave. But when “the President’s view of his
own authority under a statute . . . has been acted upon over a substantial
period of time without eliciting congressional reversal, it is ‘entitled to
great respect’” and the President’s “construction of a statute . . . should
be followed unless there are compelling indications that it is wrong.”
Kahn, 618 F.2d at 790 (emphasis added) (citations omitted); see also
Kisor v. Wilkie, 139 S. Ct. 2400, 2426 (2019) (Gorsuch, J., concurring in
the judgment) (“[T]he government’s early, longstanding, and consistent
interpretation of a statute, regulation, or other legal instrument could
count as powerful evidence of its original public meaning.” (emphasis
omitted)).
32
At oral argument, counsel for one Intervenor stated that it “is difficult
to reconcile” multiple historical uses of the Procurement Act—such as
the antidiscrimination orders or the E-Verify Order—with their view of
the Major Questions Doctrine. Oral Arg., at 45:20–46:15. We think that
might well be true: if Arizona’s initial and Intervenors’ current view of
the Doctrine were correct, then many prior actions by Presidents would
be suspect. But that provides us with an additional reason why that view
36 MAYES V. BIDEN
The Fifth Circuit recognized the history of the
Procurement Act, but concluded that the Contractor Mandate
was “strikingly unlike” any past action taken under the Act,
not least because “a vaccination cannot be undone at the end
of the workday.” Louisiana, 55 F.4th at 1030 (cleaned up)
(quoting Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S.
Ct. 661, 665 (2022) (per curiam)). But the impacts of anti-
discrimination or affirmative action programs, wage and
price policies, and immigration law compliance mechanisms
also do not end with the workday—and even if they did, we
do not see how that in itself would circumscribe the
President’s authority.
The Fifth Circuit also found important that previous
Executive Orders “govern[ed] the conduct of employers,
[whereas] the vaccine mandate purports to govern the
conduct of employees.” Id. But this supposed distinction
“frames the issue at the wrong level of generality.”
Kentucky, 23 F.4th at 610. As Judge Graves highlighted in
dissent in Louisiana when discussing the E-Verify Order, the
employer/employee distinction does not stand up to scrutiny:
Both Executive Orders require something of
employers, namely that the employer use the
E-Verify system to verify the immigration
eligibility of its workers, and that the
employer uses a system to verify the vaccine
eligibility of its workers. Both necessarily
touch the employees, namely that employees
of the Doctrine is not correct. We agree with the courts that upheld those
prior Executive Orders as within the President’s authority under the
Procurement Act for the same (or similar) reasons we now find that the
Contractor Mandate is within President Biden’s authority.
MAYES V. BIDEN 37
working for federal contractors must be
verified under the E-Verify system or be
subject to termination, and that employees
working for federal contractors must be
verified as being COVID-19 vaccine
compliant or be subject to termination.
55 F.4th at 1036–37 (Graves, J., dissenting).
In sum, we find that the Major Questions Doctrine is not
relevant here because the Contractor Mandate is a
Presidential—not an agency—action. But even if the
Doctrine applied, it would not bar the Contractor Mandate
because the Mandate is not a transformative expansion of the
President’s authority under the Procurement Act.
B. The Contractor Mandate falls within the
President’s authority under the Procurement Act.
Plaintiffs also argue that, even if the Major Questions
Doctrine does not bar the Contractor Mandate, the Mandate
nonetheless exceeds the scope of the President’s authority
under the Procurement Act. We disagree.
The Procurement Act empowers the President to
“prescribe policies and directives that the President
considers necessary to carry out” the statute’s objective of
“provid[ing] the Federal Government with an economical
and efficient system” for “[p]rocuring . . . nonpersonal
services, and performing related functions including
contracting.” 40 U.S.C. §§ 101, 121(a). Our Circuit has not
yet addressed the scope of the President’s authority under the
Procurement Act. But for the EO to have the force of law,
“it is necessary to establish a nexus between the [EO] and
some delegation of the requisite legislative authority by
38 MAYES V. BIDEN
Congress.” Chrysler Corp. v. Brown, 441 U.S. 281, 304
(1979).
Different circuits have interpreted that requirement
differently. The D.C. Circuit requires a “sufficiently close
nexus” between an order issued pursuant to the Procurement
Act and the statutory goals of economy and efficiency. See
Chao, 325 F.3d at 366 (quoting Kahn, 618 F.2d at 792). The
Fourth Circuit requires a finding that the executive branch
policies are “reasonably related to the Procurement Act’s
purpose.” Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164,
170 (4th Cir. 1981). Even though the D.C. Circuit’s
language sounds more stringent, its standard is a “lenient”
one, Chao, 325 F.3d at 367, and “‘[e]conomy’ and
‘efficiency’ are not narrow terms; they encompass those
factors like price, quality, suitability, and availability of
goods or services that are involved in all acquisition
decisions,” Kahn, 618 F.2d at 789.
The President tasked the OMB Director to “determine
whether [the Task Force’s] Guidance will promote economy
and efficiency in Federal contracting if adhered to by
Government contractors.” 86 Fed. Reg. at 50,986. The
Acting OMB Director determined that the Task Force
Guidance will “decrease the spread of COVID-19, which
will in turn decrease worker absence, save labor costs on net,
and thereby improve efficiency in Federal contracting.” 86
Fed. Reg. at 63,421. The OMB Determination further
explained how COVID-19 infections “impose[] significant
costs on contractors and the federal government,” and how
vaccination against COVID-19 “reduces net costs.” Id. at
63,421–22 (bolding and capitalization omitted). Although
Arizona describes the Contractor Mandate as an effort to
make federal contractors “supposedly more efficient,” the
district court did not make factual findings that contradicted
MAYES V. BIDEN 39
the findings underlying the OMB Determination or conclude
that those findings were arbitrary and capricious. See
generally Brnovich, 562 F. Supp. 3d at 152–57. There is no
legal basis to disregard the OMB’s findings, all of which
support the reasoning behind the Contractor Mandate.
Under either the D.C. or Fourth Circuit’s tests, the
Contractor Mandate falls within the President’s Procurement
Act authority. 33 The findings in the OMB Determination
show a “sufficiently close nexus” with, Kahn, 618 F.2d at
792, and a “reasonabl[e] relat[ionship]” to, Liberty Mut., 639
F.2d at 170, the Contractor Mandate and the Procurement
Act’s goals of economy and efficiency. It is axiomatic that
federal contracts will be performed more economically and
efficiently with fewer absences. Would our analysis be
different if the COVID-19 pandemic were far less serious?
Perhaps, but unfortunately the President did not face that
hypothetical. The President faced a pandemic the likes of
which the world has not seen in more than a century.
Our conclusion is bolstered by precedent interpreting the
Procurement Act. The broad language of the Act
purposefully gives the President both “necessary flexibility
and ‘broad-ranging authority’” in setting procurement
policies. Chao, 325 F.3d at 366 (citation omitted). And the
Act leaves room for the President’s discretion by directing
the President to “prescribe policies and directives that the
President considers necessary” to carrying out the purposes
of the Act. 40 U.S.C. § 121(a) (emphasis added). This
statute does not present the worry of Congress hiding
33
Because any formulation of the nexus test we might adopt would yield
the same result, we do not need to provide a definitive standard here.
40 MAYES V. BIDEN
“elephants in mouseholes.” Whitman v. Am. Trucking
Ass’ns, Inc., 531 U.S. 457, 468 (2001).
In this way, the Procurement Act is similar to the
statutory text at issue in Biden v. Missouri, 142 S. Ct. 647
(2022) (per curiam). In Missouri, the Supreme Court held
that language authorizing the Secretary of Health and
Human Services to impose conditions he “finds necessary in
the interest of . . . health and safety” was adequate
authorization to impose a vaccination requirement on the
employees of facilities that receive Medicare and Medicaid
funds. Id. at 652 (quoting 42 U.S.C. § 1395x(e)(9))
(emphasis added).
The Sixth Circuit concluded that the Procurement Act
only confers authority “to implement systems making the
government’s entry into contracts less duplicative and
inefficient, but it does not authorize [the President] to impose
a medical mandate directly upon contractor employees
themselves.” Kentucky, 23 F.4th at 605. Therefore,
according to the Kentucky court, the government lacked
authority to regulate contractors directly to improve their
economy and efficiency, rather than the government’s. Id.
Likewise, the Eleventh Circuit held the Procurement Act’s
“statutory scheme” is limited to “a framework through which
agencies can articulate specific, output-related standards”
for their procurement decisions. Georgia, 46 F.4th at 1295.
There, the court determined the Contractor Mandate is
“different in nature than the sort of project-specific
restrictions” set forth in the Procurement Act. Id. at 1296.
We respectfully disagree. The Act’s text—empowering
the President to “prescribe . . . directives that the President
considers necessary,” 40 U.S.C. § 121(a), to realize “an
economical and efficient system” for “[p]rocuring . . .
MAYES V. BIDEN 41
services, and performing . . . contracting,” id. § 101(1)—
allows for prescribing requirements that address contractors’
operations. The word “system” encompasses how the
contractors’ services are to be rendered. Merriam-Webster
defines “system” as “an organized or established
procedure.” 34 We hold that the President was justified in
finding that prescribing vaccination-related steps contractors
must take in order to work on government contracts would
directly promote an economical and efficient “system” for
both procuring services and performing contracts. And we
believe the President was authorized by the Act to establish
a procedure by which taxpayer funds used to pay contractors
who work on federal government projects are only used to
pay those contractors whose relevant employees are
vaccinated against COVID-19.
The Sixth Circuit in Kentucky also did not adequately
address Presidents’ historical practices under the
Procurement Act, many of which undeniably affected
contractors’ own operations rather than merely the
government’s entry into contracts. See 23 F.4th at 605–10.
President Bush justified his 2001 Executive Order requiring
contractors to post notices informing their employees of
certain labor rights on the explicit basis that “[w]hen workers
are better informed of their rights, . . . their productivity is
enhanced.” 66 Fed. Reg. at 11,221 (emphasis added). This
was the last Executive Order issued under the Procurement
Act before Congress’s latest recodification of the Act, in
which Congress stated it was making “no substantive change
in existing law.” Act of August 21, 2002 § 5(b).
34
System, MERRIAM-WEBSTER, https://www.merriam-webster.com/dicti
onary/system (last visited Apr. 11, 2023).
42 MAYES V. BIDEN
The Kentucky court classifies the Executive Orders in
Kahn, Chao, and Napolitano as having a “‘close nexus’ to
the ordinary hiring, firing, and management of labor.”
Kentucky, 23 F.4th at 607 (quoting Kahn, 618 F.2d at 792).
But the Contractor Mandate is also closely related to the
ordinary management of labor—as evidenced by the
analogous private sector practices that the Acting OMB
Director cited in the OMB Determination. 86 Fed. Reg. at
63,421–22; accord Louisiana, 55 F.4th at 1036–37 (Graves,
J., dissenting) (explaining how the E-Verify Order in
Napolitano and the Contractor Mandate place similar
requirements on employees).
The district court, Arizona, and the Fifth Circuit worry
that upholding the Contractor Mandate will mean there is no
limiting principle to the President’s authority under the
Procurement Act. The district court hypothesized that
sustaining the Contractor Mandate would permit the
President to enact any executive order, “no matter how
tenuous” the connection to economy and efficiency, such as
“requiring all federal contractor employees to refrain from
consuming soda or eating fast food.” Brnovich, 562 F. Supp.
3d at 152. The Fifth Circuit went further, positing that
upholding the Contractor Mandate would enable the
Executive Branch to require that “all federal contractors
certify that their employees take daily vitamins, live in
smoke-free homes, exercise three times a week, or even, at
the extremity, take birth control in order to reduce
absenteeism relating to childbirth and care.” Louisiana, 55
F.4th at 1031–32; accord Georgia, 46 F.4th at 1296
(warning that the Procurement Act “is not an ‘open book’ to
which contracting agencies may ‘add pages and change the
plot line’” (quoting West Virginia, 142 S. Ct. at 2609)).
MAYES V. BIDEN 43
We reject these invitations to adjudicate slippery-slope
hypotheticals. “In our system of government, courts base
decisions not on dramatic Hollywood fantasies, . . . but on
concretely particularized facts developed in the cauldron of
the adversary process and reduced to an assessable record.”
United States v. Kincade, 379 F.3d 813, 838 (9th Cir. 2004)
(en banc) (internal citation omitted). Moreover, the
Procurement Act has a clear textual limiting principle in that
the President can only prescribe policies and directives that
he “considers necessary” to ensure “an economical and
efficient system” for procurement and contracting. 40
U.S.C. §§ 101, 121(a). While a future President might try to
analogize soda consumption to a worldwide pandemic in
issuing an Executive Order under the Procurement Act, we
will leave the consideration of that hypothetical Executive
Order to a future court.
***
We hold that the Contractor Mandate falls within the
President’s authority under the Procurement Act.
C. Other doctrines do not bar the Contractor
Mandate.
1. Nondelegation Doctrine
The district court also invoked the constitutional
avoidance canon to invalidate the Contractor Mandate,
reasoning that the Mandate “raises serious constitutional
questions” under the nondelegation doctrine. Brnovich, 562
F. Supp. 3d. at 155–56. We disagree. The nondelegation
doctrine arises out of the principle that Congress “may not
transfer to another branch ‘powers which are strictly and
exclusively legislative.’” Gundy, 139 S. Ct. at 2123 (quoting
Wayman v. Southard, 23 U.S. 1, 42–43 (1825)). But the
44 MAYES V. BIDEN
Supreme Court has recognized that “Congress simply cannot
do its job absent an ability to delegate power under broad
general directives,” Mistretta v. United States, 488 U.S. 361,
372 (1989), and has concluded that a statutory delegation is
constitutional so long as Congress “lay[s] down by
legislative act an intelligible principle to which the person or
body authorized to [exercise the delegated authority] is
directed to conform,” id. (second alteration in original)
(quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S.
394, 409 (1928)).
The Supreme Court has only twice found statutory
delegations excessive under the nondelegation doctrine. 35
No statutory delegation has been invalidated due to
nondelegation concerns in nearly ninety years. The Supreme
Court has found an intelligible principle when the agency
was authorized to regulate in the “public interest,” see
National Broadcasting Co. v. United States, 319 U.S. 190,
215–17 (1943), and—more recently—when the agency
issued air quality standards “requisite to protect the public
health,” Whitman, 531 U.S. at 473. The Procurement Act
has a clear intelligible principle that easily clears the low
threshold established by National Broadcasting Company: it
authorizes the President to “prescribe policies and directives
that the President considers necessary” to secure “an
economical and efficient system” for procurement and
contracting. 40 U.S.C. §§ 101, 121(a). This principle “can
35
See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495,
530–42 (1935) (invalidating a statute that empowered the President to
approve industry-specific “codes of fair competition” and thus regulate
the entire economy); Panama Refin. Co. v. Ryan, 293 U.S. 388, 414–20
(1935) (invalidating a statute that authorized the President to prohibit
interstate and foreign transportation of oil produced in excess of state
quotas but provided no guidance for how to exercise discretion).
MAYES V. BIDEN 45
be applied generally to the President’s actions to determine
whether those actions are within the legislative delegation.”
Kahn, 618 F.2d at 793 n.51.
2. Federalism and State Sovereignty
Neither federalism nor state sovereignty concerns bar the
Contractor Mandate. The district court viewed the Mandate
as a “regulation of health and safety matters” and thus in
conflict with Arizona’s “traditional police power.” See
Brnovich, 562 F. Supp. 3d at 156–57 (citations omitted). But
the Contractor Mandate is aimed at federal contracting, even
if also motivated by health and safety concerns. And the
federal government undisputedly has the power to regulate
the performance of federal contracts. See Gartrell Constr.
Inc. v. Aubry, 940 F.2d 437, 440–41 (9th Cir. 1991)
(exempting federal contractors from state licensing
requirements); United States v. Virginia, 139 F.3d 984, 990
(4th Cir. 1998) (“[F]ederal contractors cannot be required to
satisfy state ‘qualifications in addition to those that the
[Federal] Government has pronounced sufficient.’” (second
alteration in original) (quoting Leslie Miller, Inc. v.
Arkansas, 352 U.S. 187, 190 (1956))). Even if the Mandate
did regulate health and safety, the federal government does
not “invade[]” areas of state sovereignty “simply because it
exercises its authority . . . in a manner that displaces the
States’ exercise of their police powers.” Hodel v. Virginia
Surface Min. & Reclamation Ass’n, 452 U.S. 264, 291
(1981).
The nondelegation doctrine and state sovereignty
concerns do not somehow invalidate the Contractor
Mandate.
D. The Contractor Mandate satisfies the
Procurement Policy Act’s procedural
46 MAYES V. BIDEN
requirements.
Arizona contends that the Task Force’s Guidance, the
FAR Council Guidance, and the OMB Determination fail the
Procurement Policy Act’s procedural requirements. The
Procurement Policy Act typically requires that comments on
a proposed policy be open for at least 30 days and that the
policy not take effect until 60 days after its publication for
comment. 41 U.S.C. § 1707(a), (b). The district court
correctly rejected Arizona’s procedural challenges.
1. Task Force Guidance and FAQs
The Task Force documents survive any procedural
challenge for two reasons. First, the Task Force is not one
of the specifically enumerated “executive agenc[ies]” that
the Procurement Policy Act’s requirements apply to. Id.§ 1707(c)(1). It is merely a body created by Executive Order
13,991. See 86 Fed. Reg. at 7,045–46. It can only advise
the President, id. at 7,046, and thus lacks the “substantial
independent authority” required of an “agency,” Meyer v.
Bush, 981 F.2d 1288, 1292 (D.C. Cir. 1993). See also id. at
1292–97 (concluding that the President’s Task Force on
Regulatory Relief was not an “agency” under the Freedom
of Information Act because it lacked “substantial
independent authority”).
Second, the Task Force Guidance and FAQs have no
standalone legal force. The EO stated that any Task Force
Guidance would only be binding after the OMB Director’s
economy-and-efficiency determination. 86 Fed. Reg. at
50,985–86. Therefore, as the district court found, the Task
Force Guidance and FAQs “do not independently constitute
a binding ‘policy, regulation, procedure, or form.’”
Brnovich, 562 F. Supp. 3d at 160.
MAYES V. BIDEN 47
2. The FAR Council Guidance
The district court correctly held that the FAR Council
Guidance “is not binding of its own force” and “does not
compel agencies to take any specific action.” Id. That
Guidance points contracting officers to “the direction[s] . . .
issued by their respective agencies.” FAR Council
Guidance, at 2. Thus, the FAR Council Guidance is not a
“‘procurement policy, regulation, procedure, or form” such
that it would need to conform to the Procurement Policy
Act’s notice-and-comment procedures under 41 U.S.C.
§ 1707. Brnovich, 562 F. Supp. 3d at 160.
3. The OMB Determination
The federal government argues, as it did below, that the
Acting OMB Director did not have to comply with the
notice-and-comment provisions because the Director was
acting pursuant to power delegated to her by the President.
The federal government also notes that, like the district
court, this court “need not determine the applicability of the
[Procurement Policy Act] because the . . . Director
voluntarily complied with § 1707.”
The district court found that even if the Acting OMB
Director were subject to the notice-and-comment
requirements of the Procurement Policy Act, she “properly
invoked the § 1707(d) waiver provision,” id. at 158, because
“‘urgent and compelling circumstances’ made compliance
with ordinary § 1707 procedures impracticable with respect
to the revised OMB determination,” id. at 159. We agree.
The Acting OMB Director made clear that the “broader
economy-and-efficiency purpose” of the OMB
Determination “would be severely undermined by the
minimum delay required under” § 1707’s notice-and
48 MAYES V. BIDEN
comment provisions. 86 Fed. Reg. at 63,424. Arizona
claims that § 1707(d)’s waiver provision only applies to
“temporary” procurement regulations, whereas the OMB
Determination here has “no certain endpoint.” Arizona
incorrectly equates an unknown duration with an unlimited
duration. In a dynamic situation such as a pandemic, the
absolute end date of temporary measures cannot be
definitively determined in advance. In that way, the OMB
Determination is temporary much like a public health
emergency or a grant of emergency use authorization is
temporary.
Arizona also argues that there are no “urgent and
compelling circumstances” here because the Contractor
Mandate is “putatively based solely on promoting economy
and efficiency in federal contracting” and the government
relies on “supposed efficiency gains.” In contrast, Arizona
highlights that the Centers for Medicare & Medicaid
Services in Missouri had found that immediate publication
would “significantly reduce . . . infections, hospitalizations,
and deaths.” 142 S. Ct. at 654. Health-related concerns like
those in Missouri may be immediately calculable. But the
economic and logistical consequences of infections,
isolation periods, and quarantine requirements on federal
contracts and budget overruns necessarily operate as domino
effects. Therefore, it is not disqualifying that health
concerns in one context were based on actual data while
economic projections in this context are just that:
projections.
***
For similar reasons discussed above (no final agency
action in the case of the FAR Council Guidance and no
MAYES V. BIDEN 49
agency in the case of the Task Force), Arizona’s claims
under the Administrative Procedure Act (“APA”) also fail. 36
***
Because Arizona fails to satisfy the first prong of the
permanent injunction inquiry—actual success on the
merits—we need not analyze whether it has satisfied the
remaining prongs. Cf. Garcia v. Google, Inc., 786 F.3d 733,
740 (9th Cir. 2015) (en banc) (stating that courts “need not
consider the remaining” preliminary injunctive factors if a
plaintiff fails the “threshold inquiry” of likelihood of success
on the merits (quoting Ass’n des Eleveurs de Canards et
d’Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir.
2013)).
IV. CONCLUSION
The President, when faced with an unprecedented
pandemic that has claimed millions of lives and caused
billions of dollars of productivity losses, issued a Mandate
requiring that certain employees of contractors working on
federal projects be vaccinated against the disease that
resulted in the pandemic. The President appropriately relied
on a statute that gave him the necessary flexibility and broad-
ranging authority to ensure economy and efficiency in
federal procurement and contracting. The President issued
the Contractor Mandate following the required procedural
measures, and the Mandate became effective upon a
reasoned determination of its benefits by the OMB.
36
In its briefing, Arizona originally requested that we remand the APA
claims to the district court for further injunction-related litigation.
However, Arizona has now abandoned that request, and Intervenors have
not sought such a remand. Thus, we treat that remand request as waived.
50 MAYES V. BIDEN
We REVERSE the district court’s grant of a permanent
injunction and dissolve the injunction.