MAYES v. BIDEN

No. 22-15518.

67 F.4th 921 (2023)

Kristin K. MAYES, Attorney General; State of Arizona; Al Reble; Phoenix Law Enforcement Association; United Phoenix Firefighters Association Local 493, Plaintiffs-Appellees, 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 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 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 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.

United States Court of Appeals, Ninth Circuit.

Filed April 19, 2023.


Attorney(s) appearing for the Case

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), Principal Deputy Solicitor General; James K. Rogers , Senior Litigation Counsel; Drew C. Ensign , Deputy Solicitor General; Joseph A. Kanefield , Chief Deputy & Chief of Staff; Kristin K. Mayes , 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 Kristin K. Mayes and State of Arizona.

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.

Before: Richard R. Clifton, Mark J. Bennett, and Roopali H. Desai, Circuit Judges.


OPINION

The purpose of the Federal Property and Administrative Services Act of 1949 ("Procurement Act"), 40 U.S.C. § 101 et seq., "is to provide the Federal Government with an economical and efficient system for ... [p]rocuring and supplying property and nonpersonal services, and... contracting,"

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