Associated Builders and Contractors Florida First Coast Chapter v. General Services Administration

USCA11 Case: 25-11375 Document: 47-1 Date Filed: 04/21/2026 Page: 1 of 33

FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 25-11375

____________________

ASSOCIATED BUILDERS AND CONTRACTORS FLORIDA

FIRST COAST CHAPTER,

ASSOCIATED BUILDERS AND CONTRACTORS,

Plaintiffs-Appellants,

versus

GENERAL SERVICES ADMINISTRATION,

William F. Clark, Director, Office of Government-Wide

Acquisition Policy,

OFFICE OF MANAGEMENT AND BUDGET,

Christine J. Harada, Far Council Chair, Senior Advisor

to the Deputy Director for Management,

UNITED STATES DEPARTMENT OF DEFENSE,

John M. Tenaglia, Principal Director, Defense Pricing

and Contracting,

NATIONAL AERONAUTICS AND SPACE

ADMINISTRATION,

Karla S. Jackson, Assistant Administrator

for Procurement,

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2 Opinion of the Court 25-11375

GENERAL SERVICES ADMINISTRATION,

Jeffrey A. Koses, Senior Procurement Executive, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:24-cv-00318-WWB-MCR

____________________

Before WILLIAM PRYOR, Chief Judge, and BRANCH and ABUDU, Cir-

cuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether two builders’ as-

sociations are likely to succeed on statutory and constitutional chal-

lenges to a procurement mandate. In February 2022, President Jo-

seph Biden signed an executive order presumptively requiring that

federal construction contractors enter into project labor agree-

ments with unions to improve the efficiency of their work. The As-

sociated Builders and Contractors and its Florida First Coast Chap-

ter brought a facial challenge to the order, accompanying regula-

tions, and enforcement guidance published by the Office of Man-

agement and Budget. After the district court denied their motion

for a preliminary injunction, the associations filed this interlocu-

tory appeal. While the appeal was pending, Russell Vought, the

new Director of the Office of Management and Budget, issued a

memorandum stating that the executive order remains in effect

during the Trump administration. Because the associations are not

likely to succeed on the merits of their claims, we affirm.

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25-11375 Opinion of the Court 3

I. BACKGROUND

We describe the background of this appeal in two parts. We

first recount President Biden’s mandate of project labor agree-

ments for federal construction projects. We then describe the asso-

ciations’ challenges to that mandate in the district court.

A. President Biden Instructs Agencies to Require Project Labor

Agreements for Large-Scale Federal Construction Projects.

Project labor agreements are “multi-employer, multi-union

pre-hire agreement[s] designed to systemize labor relations at a

construction site.” Bldg. & Constr. Trades Dep’t, AFL-CIO v. Allbaugh,

295 F.3d 28, 30 (D.C. Cir. 2002). They ordinarily require that “all

contractors and subcontractors who will work on a project sub-

scribe to the agreement,” that “all contractors and subcontractors

agree in advance to abide by a master collective bargaining agree-

ment for all work on the project,” and that “wages, hours, and

other terms of employment be coordinated or standardized pursu-

ant to the [agreement] across the many different unions and com-

panies working on the project.” Id.

Presidential support for project labor agreements has varied.

President George H.W. Bush prohibited agencies from requiring

them. Exec. Order No. 12,818, 57 Fed. Reg. 48713, 48713 (Oct. 23,

1992). President William Clinton revoked that order and allowed

them. Exec. Order 12,836, 58 Fed. Reg. 7045, 7045 (Feb. 1, 1993).

President George W. Bush barred agencies from either requiring or

prohibiting them. Exec. Order 13,202, 66 Fed. Reg. 11225, 11225

(Feb. 17, 2001). And President Barack Obama “encourage[d]

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4 Opinion of the Court 25-11375

executive agencies to consider requiring” them. Exec. Order No.

13,502, 74 Fed. Reg. 6985, 6985 (Feb. 6, 2009). His order remained

in effect during the first administration of President Donald

Trump.

President Biden addressed the subject in an executive order

in February 2022. He found that “[l]arge-scale construction projects

pose special challenges to efficient and timely procurement by the

Federal Government.” Exec. Order No. 14,063, 87 Fed. Reg. 7363,

7363 (Feb. 4, 2022). He also determined that project labor agree-

ments “are often effective in preventing these problems from de-

veloping.” Id. So, “[b]y the authority vested in [him under] . . . the

Constitution and the laws of the United States of America, includ-

ing the Federal Property and Administrative Services Act,” Presi-

dent Biden established a presumptive requirement that “every con-

tractor or subcontractor engaged in construction” on federal con-

struction projects valued at “$35 million or more” must “negotiate

or become a party to a project labor agreement with one or more

appropriate labor organizations.” Id. at 7363–64.

Senior officials within procurement agencies “may grant an

exception . . . for a particular contract by . . . providing a specific

written explanation of why at least one of [three] circumstances

exists with respect to that contract.” Id. at 7364. First, an official

may explain that a project labor agreement would “not advance the

Federal Government’s interests in achieving economy and effi-

ciency in Federal procurement.” Id. Second, an official may con-

clude “[b]ased on an inclusive market analysis” that requiring an

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25-11375 Opinion of the Court 5

agreement would “substantially reduce the number of potential

bidders so as to frustrate full and open competition.” Id. Third, an

official may specify that mandating an agreement would “be incon-

sistent with statutes, regulations, Executive Orders, or Presidential

Memoranda.” Id.

President Biden instructed the Federal Acquisition Regula-

tory Council to “propose regulations implementing the provisions

of [his] order.” Id. at 7365. The Council “assist[s] in the direction

and coordination of Government-wide procurement policy” and

comprises officials from the Office of Federal Procurement Policy,

the Department of Defense, the National Aeronautics and Space

Administration, and the General Services Administration. 41

U.S.C. §§ 1102, 1302(a), (b)(1). As directed, after a notice and com-

ment period, the Council issued its implementing regulations in

December 2023. See Use of Project Labor Agreements for Federal

Construction Projects, 88 Fed. Reg. 88708 (Dec. 22, 2023). The reg-

ulations “require use of project labor agreements for contractors

and subcontractors engaged in construction” on “large-scale con-

struction project[s].” FAR 22.503(b). And they include the same

three exceptions allowed by the executive order. Id.

at 22.504(d)(1)(i)–(iii).

President Biden instructed the Office of Management and

Budget to “issue guidance” for the three exceptions. 87 Fed. Reg. at

7365. The Office published a guidance memorandum shortly be-

fore the regulations took effect. The guidance memorandum reit-

erated that exceptions are available where requiring a project labor

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6 Opinion of the Court 25-11375

agreement “would . . . be inconsistent with federal statutes.” And

it outlined “[a]dditional management considerations” to assist

agencies as they determined whether exceptions should be granted

because project labor agreements “would not promote economy

and efficiency” or “would inhibit competition.”

B. The Associations Sue to Enjoin the Procurement Mandate.

Members of the Associated Builders and Contractors and its

Florida First Coast Chapter “share the belief that work in the con-

struction industry should be awarded and performed on the basis

of merit” alone. Most of the associations’ members opt not to af-

filiate with unions. Because the new procurement mandate condi-

tions federal construction contracts on entry into project labor

agreements with unions, the associations contend that their mem-

bers “are being unfairly deprived of significant contracting oppor-

tunities.”

The associations sued officials in multiple procurement

agencies. They alleged that the executive order, regulations, and

guidance memorandum are facially defective under the Competi-

tion in Contracting Act of 1984, Pub. L. No. 98-369, 98 Stat. 1175

(codified as amended in scattered sections of 41 U.S.C.); the Federal

Property and Administrative Services Act of 1949, Pub. L. No. 81-

152, 63 Stat. 377 (codified as amended in scattered sections of 40

U.S.C.); the First Amendment, U.S. CONST. amend. I; the Adminis-

trative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (cod-

ified as amended in scattered sections of 5 U.S.C.); the Office of

Federal Procurement Policy Act, Pub. L. No. 93-400, 88 Stat. 796

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25-11375 Opinion of the Court 7

(1974) (codified as amended in scattered sections of 41 U.S.C.); and

the National Labor Relations Act, Pub. L. No. 74-198, 49 Stat. 449

(1935) (codified as amended in scattered sections of 29 U.S.C.). The

associations sought a declaratory judgment that the procurement

mandate is invalid, an order vacating the mandate, and a perma-

nent injunction preventing the government from enforcing it

against them.

One month after filing their complaint, the associations

moved for a preliminary injunction. They attached affidavits ex-

plaining the success their members had enjoyed in securing federal

construction contracts before President Biden signed the executive

order. They asserted that the government had rendered the three

exceptions in the executive order a “dead letter” by refusing to ap-

ply the exceptions when appropriate. And they identified specific

construction projects on which their members would have bid if

project labor agreements were not required.

The district court denied the motion for a preliminary in-

junction. It ruled that the associations had not satisfied their “heavy

burden” to prove that the executive order likely exceeded the Pres-

ident’s authority under the Federal Property Act. It ruled that the

associations were likely to succeed on their facial challenge under

the Competition Act because the government’s “course of dealing”

in “consistently declin[ing] to utilize the [three] exceptions” unduly

restricted competition. But it found that the members of the asso-

ciations would not suffer irreparable harm from any violations of

the Competition Act because they could protest individual

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8 Opinion of the Court 25-11375

procurements in the United States Court of Federal Claims. See 28

U.S.C. § 1491(b)(1). After it found that no “irreparable harm exists,”

the district court denied a preliminary injunction without address-

ing the associations’ likelihood of success under the First Amend-

ment, the Administrative Procedure Act, the Office of Federal Pro-

curement Policy Act, and the National Labor Relations Act.

The associations filed this interlocutory appeal. See id.

§ 1292(a)(1). While the appeal was pending, the new Director of

the Office of Management and Budget circulated a memorandum

explaining that the executive order and its three exceptions “re-

main[] in effect” during the Trump administration. Memorandum

from Russell T. Vought, Director, to Heads of Exec. Dep’ts &

Agencies 1–2 ( June 12, 2025), https://perma.cc/87ZL-SXD4. We

take judicial notice of these instructions because they “are a matter

of public record and are relevant to the appeal.” In re Nica Holdings,

Inc., 810 F.3d 781, 785 n.3 (11th Cir. 2015) (citation and internal quo-

tation marks omitted); FED. R. EVID. 201(b)(2).

After oral argument, we requested supplemental briefing to

determine whether the associations should have filed their action

in the Court of Federal Claims. The government and the associa-

tions both responded that the district court, not the Court of Fed-

eral Claims, had jurisdiction. We agree with the parties and pro-

ceed to the merits of the associations’ appeal.

II. STANDARDS OF REVIEW

We review the denial of a preliminary injunction for abuse

of discretion. Mata Chorwadi, Inc. v. City of Boynton Beach, 66 F.4th

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25-11375 Opinion of the Court 9

1259, 1263 (11th Cir. 2023). “We review legal conclusions de novo

and factual findings for clear error.” Mills v. Hamm, 102 F.4th 1245,

1248 (11th Cir.), cert. denied, 144 S. Ct. 2601 (2024).

III. DISCUSSION

“[A] preliminary injunction is an extraordinary and drastic

remedy not to be granted unless the movant clearly establishe[s]

the burden of persuasion as to . . . four prerequisites.” Siegel v. Le-

Pore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (citation and in-

ternal quotation marks omitted). The movant must prove that it

has “a substantial likelihood of success on the merits of the under-

lying case,” that it “will suffer irreparable harm in the absence of

an injunction,” that “the harm suffered by the movant in the ab-

sence of an injunction would exceed the harm suffered by the op-

posing party if the injunction is issued,” and that “an injunction

would not disserve the public interest.” Odebrecht Constr., Inc. v.

Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1273–74 (11th Cir. 2013)

(citation and internal quotation marks omitted). Failure to establish

any of the four prerequisites is fatal. Siegel, 234 F.3d at 1176.

The district court correctly denied a preliminary injunction

but did so for the wrong reasons. We first explain that the district

court erred in ruling that the associations would not suffer irrepa-

rable harm. We then explain that the associations nonetheless

failed to establish a likelihood of success on the merits.

A. The District Court Erred in Evaluating Irreparable Harm.

The district court denied a preliminary injunction after find-

ing that the associations’ members would not be irreparably

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10 Opinion of the Court 25-11375

harmed by violations of the Competition Act. It did not consider

whether the associations were entitled to relief based on many of

the other violations that they alleged. The district court erred.

The district court should have considered the possibility of

irreparable harm “with respect to each claim” before finding that

the associations failed to establish the required harm. N. Am. Med.

Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1226 (11th Cir. 2008).

Denying a preliminary injunction in multi-claim cases based on the

absence of harm for a single claim risks error because different

claims can present different harms. First Amendment claimants, for

example, do not need to make a specific showing of irreparable

harm because an ongoing deprivation of First Amendment rights

“constitutes a per se irreparable injury.” Otto v. City of Boca Raton,

981 F.3d 854, 870 (11th Cir. 2020). The associations alleged First

Amendment violations in this case, yet the district court never con-

sidered the possibility of harm under the First Amendment be-

cause it focused exclusively on harm caused by the purported vio-

lations of the Competition Act. When a movant seeks a prelimi-

nary injunction based on multiple claims, a court should not deny

the motion without finding that “each claim” fails to satisfy the re-

quirements for injunctive relief. N. Am. Med. Corp., 522 F.3d at 1226–

29 (vacating preliminary injunction after separately analyzing irrep-

arable harm as to both claims on which plaintiff was likely to suc-

ceed on the merits).

The district court also erred in its evaluation of irreparable

harm under the Competition Act. The district court discounted the

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25-11375 Opinion of the Court 11

“lost contract opportunities” and “systemic barriers to competi-

tion” alleged by the associations because it thought that their mem-

bers “ha[d] adequate relief through individual bid protests before

the Court of Federal Claims.” But a court must assess irreparable

harm by examining the adequacy of alternative “legal” remedies

providing “monetary” relief. Odebrecht Constr., 715 F.3d at 1288–89

(citation and internal quotation marks omitted); Scott v. Roberts, 612

F.3d 1279, 1295 (11th Cir. 2010). Congress has expressly limited

“monetary relief ” in bid-protest actions to “bid preparation and

proposal costs.” 28 U.S.C. § 1491(b)(2). It is only the equitable alter-

natives available in those actions—including “injunctive relief ”—

that could protect the associations’ members against their alleged

harms. Id.

The government responds that preliminary injunctions

should not be granted where “other forms of corrective relief ” are

available. To be sure, we have stated that “[t]he possibility [of ] ad-

equate compensatory or other corrective relief . . . in the ordinary

course of litigation . . . weighs heavily against a claim of irreparable

harm.” Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of

Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (citation and inter-

nal quotation marks omitted). But equitable remedies available in

another court do not provide the kind of “corrective relief ” that

forecloses a preliminary injunction. Id. Our test for injunctive relief

asks “whether the plaintiffs [are] likely to suffer irreparable injury

absent an injunction,” Swain v. Junior, 961 F.3d 1276, 1292 (11th Cir.

2020), not whether an injunction could be obtained elsewhere.

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12 Opinion of the Court 25-11375

B. The Associations Are Unlikely to Succeed on the Merits.

Although the district court’s erroneous understanding of ir-

reparable harm led it to deny a preliminary injunction for the

wrong reason, “we may affirm on any ground supported by the

record, regardless of whether that ground was relied upon or even

considered below.” Aaron Priv. Clinic Mgmt. LLC v. Berry, 912 F.3d

1330, 1335 (11th Cir. 2019) (alteration adopted) (citation and inter-

nal quotation marks omitted). The government and the associa-

tions both urge us to decide whether the associations’ facial chal-

lenge is likely to succeed on the merits. We accept the parties’ invi-

tation and conclude that the associations’ facial challenge is un-

likely to succeed.

We divide our discussion in four parts. We first explain that

the associations are unlikely to succeed under the Competition Act.

We next explain that they are unlikely to succeed under the Federal

Property Act. We then explain that they are unlikely to succeed un-

der the First Amendment. And we finally explain that they are un-

likely to succeed under the Administrative Procedure Act, the Of-

fice of Federal Procurement Policy Act, and the National Labor Re-

lations Act.

In evaluating the associations’ likelihood of success, we heed

the Supreme Court’s admonition that “facial challenges [are] hard

to win.” Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024). The

procurement mandate is facially defective under the statutes in-

voked by the associations only if “no set of circumstances exists

under which the [mandate] would be valid.” SisterSong Women of

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25-11375 Opinion of the Court 13

Color Reprod. Just. Collective v. Governor of Ga., 40 F.4th 1320, 1328

(11th Cir. 2022) (quoting United States v. Salerno, 481 U.S. 739, 745

(1987)). And the mandate is facially defective under the First

Amendment “only if [its] unconstitutional applications substan-

tially outweigh its constitutional ones.” Moody, 144 S. Ct. at 2397.

1. The Associations Are Unlikely to Succeed under the

Competition Act.

The Competition Act requires a system of “full and open

competition” in federal contracting. 41 U.S.C. § 3301(a)(1). “Full

and open competition,” when used to describe a “procurement,”

means that “all responsible sources are permitted to submit sealed

bids or competitive proposals on the procurement.” Id. § 107. A

“procurement” includes “all stages of the process of acquiring

property or services, beginning with the process for determining a

need for property or services and ending with contract completion

and closeout.” Id. § 111. “Responsible sources” are prospective con-

tractors qualified to perform a job based on multiple factors, in-

cluding “financial resources,” “performance record,” “technical

skills,” ability “to comply with the required or proposed delivery or

performance schedule,” and eligibility “to receive an award under

applicable laws and regulations.” Id. § 113. Agencies violate the

Competition Act when qualified and eligible contractors do not re-

ceive a fair opportunity to submit bids on a given project.

The associations contend that the procurement mandate is

facially invalid under the Competition Act because mandatory pro-

ject labor agreements undermine full and open competition on

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14 Opinion of the Court 25-11375

large-scale construction projects. We disagree. Each component of

the mandate is facially consistent with the Competition Act.

The executive order expressly permits senior agency officials

to grant exceptions from the presumptive requirement to join a

project labor agreement when an exception is necessary to preserve

“full and open competition” or otherwise comply with “statutes”

and “regulations.” 87 Fed. Reg. at 7364. The order also permits ex-

ceptions where a project labor agreement “would not advance the

Federal Government’s interests in achieving economy and effi-

ciency in Federal procurement,” id., a provision that accounts for a

requirement in the Competition Act that agencies “include restric-

tive provisions or conditions” in contract solicitations “only to the

extent necessary to satisfy the[ir] needs.” 41 U.S.C. § 3306(a)(2)(B).

Assuming agencies take these exceptions seriously, it is impossible

for the order to conf lict with the Competition Act because the ex-

ceptions incorporate the Act by reference. The same is true of the

regulations promulgated to enforce the order, FAR 22.504(d)(1)(i)–

(iii), and of the memoranda issued by the Office of Management

and Budget. In the light of the exceptions, there is at least one “set

of circumstances” under which the mandate complies with the

Competition Act: when the exceptions are faithfully applied. Sister-

Song, 40 F.4th at 1328 (citation and internal quotation marks omit-

ted).

The district court ruled that the associations were likely to

succeed under the Competition Act because the government had

“rendered the exceptions . . . functionally meaningless” by

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25-11375 Opinion of the Court 15

“consistently declin[ing] to utilize” them. This focus on the “course

of dealing” erroneously evaluates the associations’ competition

claim through an as-applied lens. As the associations clarified at oral

argument and repeatedly acknowledged in supplemental briefing,

their action “is a facial challenge” and does not turn on conduct in

connection with “any individual procurements.” Whether and to

what extent the government applies the exceptions in practice does

not tell us whether the procurement mandate is defective on its

face. Because the exceptions on their face create a possibility that

procurements will not “be inconsistent with statutes,” 87 Fed. Reg.

at 7364, “[t]his mere possibility . . . is enough to defeat a facial chal-

lenge” under the Competition Act. Harris v. Mexican Specialty Foods,

Inc., 564 F.3d 1301, 1313 (11th Cir. 2009).

2. The Associations Are Unlikely to Succeed under the

Federal Property Act.

The associations next argue that President Biden lacked au-

thority to issue the executive order. The order invokes the Presi-

dent’s authority under “the Constitution and the laws of the United

States of America, including the Federal Property and Administra-

tive Services Act.” 87 Fed. Reg. at 7363. The Federal Property Act

aims “to provide the Federal Government with an economical and

efficient system” for public contracting. 40 U.S.C. § 101. As part of

that system, “[t]he President may prescribe policies and directives

that the President considers necessary to carry out this subtitle,”

but only if “[t]he policies [are] consistent with this subtitle.” Id.

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16 Opinion of the Court 25-11375

§ 121(a). The referenced “subtitle” is defined to include specific sec-

tions in titles 40 and 41. Id. § 111.

Four years ago, we confronted a statutory challenge under

the Federal Property Act to an executive order providing that em-

ployees working on federal contracts must be fully vaccinated

against COVID-19. Georgia v. President of the United States, 46 F.4th

1283, 1289 (11th Cir. 2022). Judge Grant concluded that “the Presi-

dent likely exceeded his authority under the . . . Act when directing

executive agencies to enforce [the vaccination] mandate.” Id. at

1297. Judge Edmonson separately “concur[red] in the result” but

did not join Judge Grant’s opinion. Id. at 1308. He stated without

elaboration that “the briefs, precedents, and other authorities” led

him to “believe that plaintiffs ha[d] a reasonable chance to succeed”

in proving that the mandate was unlawful. Id. Judge Anderson dis-

sented. Id.

The parties disagree about how to apply our colleagues’

opinions. The associations describe Judge Grant’s opinion as con-

trolling, and the government contends that Judge Grant wrote only

for herself. “When faced with a fragmented Court, we may distill

the various opinions down to their narrowest grounds of concur-

rence to derive any binding precedent.” Redner v. Dean, 29 F.3d 1495,

1499 (11th Cir. 1994) (citing Marks v. United States, 430 U.S. 188, 193

(1977)). Although we ordinarily apply that principle to decisions of

the Supreme Court, there is no reason to apply a different principle

to our own decisions. Judge Edmonson provided the narrowest

grounds of concurrence in Georgia when he opined that the Georgia

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25-11375 Opinion of the Court 17

“plaintiffs ha[d] a reasonable chance to succeed on the merits.” 46

F.4th at 1308. His reasoning was limited to the vaccine issue before

him and did not adopt a definitive interpretation of the Federal

Property Act. So we interpret the text of the Act using traditional

tools of statutory interpretation and consider our colleagues’ opin-

ions only for their persuasiveness.

Two criteria constrain presidential directives under the Fed-

eral Property Act. First, the President must conclude that a di-

rective is “necessary to carry out this subtitle.” 40 U.S.C. § 121(a).

Second, the directive must be “consistent with this subtitle.” Id.

President Biden’s order regarding project labor agreements satisfies

both criteria.

Executive orders carry out the subtitle when they “put [it]

into execution.” Carry Out, WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY (1993). Part of the defined subtitle that the President

can put into execution is section 3306 of title 41. See 40 U.S.C. § 111.

Section 3306 instructs executive agencies to “specify [their] needs”

when preparing for a procurement and permits them to “include

restrictive provisions or conditions” in solicitations when “neces-

sary to satisfy” their needs. 41 U.S.C. § 3306(a)(1)(A), (2)(B). In

other words, the President can carry out the subtitle by telling

agencies which “restrictive provisions or conditions” to include in

solicitations. Id. § 3306(a)(2)(B).

The statutory text grants the President substantial discretion

in specifying those conditions as he “considers necessary.” 40 U.S.C.

§ 121(a). “Necessary,” when used to refer to the government’s

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18 Opinion of the Court 25-11375

authority, “frequently imports no more than that one thing is con-

venient, or useful, or essential to another.” M‘Culloch v. Maryland,

17 U.S. (4 Wheat.) 316, 413 (1819); Ayestas v. Davis, 138 S. Ct. 1080,

1093 (2018). And the Property Act requires a f lexible understanding

of necessity because it gives the President the authority to take ac-

tions that he considers necessary. This “sweeping, discretion-con-

ferring language,” Learning Res., Inc. v. Trump, 146 S. Ct. 628, 645

(2026) (describing provision permitting the President to “‘take such

action as he deems necessary’ to adjust the imports of a good” (al-

teration adopted) (emphasis omitted) (quoting 19 U.S.C. § 1862(b)

(1970))), “exudes deference to the President,” Trump v. Hawaii, 138

S. Ct. 2392, 2408 (2018) (interpreting provision permitting the Pres-

ident to suspend immigration “for such period as he shall deem

necessary” and to impose “any restrictions he may deem to be ap-

propriate” (quoting 8 U.S.C. § 1182(f ))).

The executive order articulates a condition that the Presi-

dent “consider[ed] necessary” to carry out the subtitle with respect

to certain construction procurements. 40 U.S.C. § 121(a). As the or-

der explains, “[l]arge-scale construction projects pose special chal-

lenges to efficient and timely procurement by the Federal Govern-

ment.” 87 Fed. Reg. at 7363. President Biden, and now President

Trump, determined that a presumption favoring project labor

agreements helps to alleviate these challenges by “provid[ing]

structure and stability” for such projects, “avoid[ing] labor-related

disruptions” on the job, “secur[ing] the commitment of all stake-

holders on a construction site,” and otherwise “reducing uncertain-

ties.” Id.; see also Bldg. & Constr. Trades Council of Metro. Dist. v.

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25-11375 Opinion of the Court 19

Associated Builders & Contractors of Mass./R.I., Inc. (Bos. Harbor), 507

U.S. 218, 231 (1993) (noting that project labor agreements can help

“accommodate conditions specific to [the construction] industry,”

including “the contractor’s need for predictable costs and a steady

supply of skilled labor”). And, when requiring a project labor

agreement would not promote “economy and efficiency,” the or-

der permits agencies to apply an exception. 87 Fed. Reg. at 7364.

The executive order is “consistent with” the defined subtitle.

40 U.S.C. § 121(a). The only potential inconsistency highlighted by

the associations is the purported conf lict between the order and

provisions in title 41 incorporating the “full and open competition”

requirement of the Competition Act. See 41 U.S.C. § 3301. We have

already concluded that the associations are unlikely to prevail on

their facial challenge under the Competition Act. And courts that

have sustained challenges to presidential directives under the Fed-

eral Property Act have acknowledged that there are no problems

where an executive order “has a close nexus to the ordinary hiring,

firing, and management of labor.” E.g., Kentucky v. Biden, 23 F.4th

585, 607–08 (6th Cir. 2022) (citation and internal quotation marks

omitted). The executive order we address here clearly has such a

nexus.

The associations’ counterarguments fail. They argue that

the Federal Property Act lacks a “specific reference” to project la-

bor agreements. But the Act does not require the President to stay

on the sidelines if Congress has not expressly approved a particular

condition in advance. It permits the President to “prescribe policies

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20 Opinion of the Court 25-11375

and directives” that he “considers necessary to carry out th[e] sub-

title.” 40 U.S.C. § 121(a). And the subtitle specifically references ex-

ecutive authority to “include restrictive provisions or conditions”

in solicitations so that agencies can “satisfy the[ir] needs.” 41 U.S.C.

§ 3306(a)(2)(B); see also id. § 3703(c) (instructing agencies to select

contractors whose proposals are “most advantageous to the Fed-

eral Government”). The associations’ insistence on even greater

specificity from Congress undermines the broad deference to the

President commanded by the statutory text. See Learning Res., 146

S. Ct. at 645; Hawaii, 138 S. Ct. at 2408. “[B]road grant[s] of author-

ity . . . do[] not require an indication that specific activities are per-

mitted.” Florida v. Dep’t of Health & Hum. Servs., 19 F.4th 1271, 1288

(11th Cir. 2021).

The associations unpersuasively contend that the President

needed “clear congressional authorization” to mandate project la-

bor agreements under the major questions doctrine. The Supreme

Court applies this doctrine to “[e]xtraordinary grants of regulatory

authority.” West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (empha-

sis added). But the President, as authorized by Congress, has in-

voked his proprietary authority to instruct agencies about “the pur-

chasing of the Government’s goods and [services].” Perkins v.

Lukens Steel Co., 310 U.S. 113, 130 (1940). “Time and again” the Su-

preme Court “ha[s] recognized that the Government has a much

freer hand in dealing with” its own employees and contractors

“than it does when it brings its sovereign power to bear on citizens

at large.” NASA v. Nelson, 562 U.S. 134, 148 (2011) (citation and in-

ternal quotation marks omitted).

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25-11375 Opinion of the Court 21

Even if we assume that the major questions doctrine can ap-

ply to the President’s proprietary actions, the procurement man-

date remains far removed from the examples highlighted by the

Supreme Court of “agencies asserting highly consequential power

beyond what Congress could reasonably be understood to have

granted.” West Virginia, 142 S. Ct. at 2609. This case involves labor

restrictions specific to a subset of construction contracts designed

to promote “an economical and efficient system for federal con-

tracting.” Georgia, 46 F.4th at 1296 (citation and internal quotation

marks omitted). And those restrictions stem from a statute that

multiple presidents have invoked to advance their policy prefer-

ences regarding project labor agreements. See, e.g., 57 Fed. Reg. at

48713; 74 Fed. Reg. at 6985. The procurement mandate does not

implicate the major questions doctrine or facially violate the Fed-

eral Property Act.

3. The Associations Are Unlikely to Succeed under the

First Amendment.

The associations next argue that mandating participation in

project labor agreements “infringes on [their] freedom of associa-

tion” under the First Amendment by “requiring [their] members to

associate with unions to bid on and/or perform contracts.” But the

associations fail to grapple with the “rigorous standard” that gov-

erns facial challenges under the First Amendment. Moody, 144 S.

Ct. at 2397. To prevail on such a challenge, the associations must

establish that any “unconstitutional applications” of the mandate

“substantially outweigh its constitutional ones” across all covered

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22 Opinion of the Court 25-11375

“activities” and “actors.” Id. at 2397–98. The associations have not

established that they are likely to satisfy this burden because they

have not identified any applications of the mandate that are uncon-

stitutional. Cf. id. at 2394 (vacating reversal of preliminary injunc-

tion and remanding for facial balancing analysis where movant

demonstrated that at least one “specific application” of the chal-

lenged law was “unlikely to withstand First Amendment scrutiny”);

In re Ga. Senate Bill 202, 160 F.4th 1171, 1176–77 (11th Cir. 2025) (va-

cating grant of preliminary injunction and remanding for facial bal-

ancing analysis where district court identified a First Amendment

violation without considering other applications).

The associations erroneously assume that any form of com-

pelled interaction with a union is unconstitutional. For a group to

invoke the freedom of association, it must “engage in some form

of expression,” and “[t]he forced inclusion of an unwanted person”

must “affect[] in a significant way the group’s ability” to engage in

that expression. Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000).

The associations never state, much less argue, that their members

are engaged in any expressive activities.

Nor would a contractual relationship with a union while

completing a construction project hinder whatever expressive ac-

tivities the associations’ members might conduct. Instead, the

members would “associate” with unions under a project labor

agreement only “in the sense that they interact with them.”

Rumsfeld v. F. for Acad. & Institutional Rights, Inc., 547 U.S. 47, 60, 69

(2006) (holding that law schools did not suffer deprivation of First

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25-11375 Opinion of the Court 23

Amendment associational rights where federal statute conditioned

funding on permitting military recruiters to recruit on campus).

Although the associations attempt to distinguish Rumsfeld because

a project labor agreement “requir[es] mutual agreement to various

terms of employment” and is “more intrusive” than the statute up-

held in Rumsfeld, the associations still do not explain how the terms

to which they might agree would restrict their expression. Absent

a “significant” impediment to “some form of expression,” we can-

not conclude that the mandate to enter into project labor agree-

ments violates the freedom of association. Dale, 530 U.S. at 648.

Even if the mandate affected associational rights, the gov-

ernment “has interests as an employer . . . that differ significantly

from those it possesses in connection with regulation . . . of the

citizenry in general.” Janus v. Am. Fed’n of State, Cnty., & Mun.

Emps., 138 S. Ct. 2448, 2477 (2018) (citation and internal quotation

marks omitted). This distinction, which extends to the govern-

ment’s proprietary interests in managing federal contractors, see

Nelson, 562 U.S. at 138–39, 148–49, 151–54, means the government

may “require that a union serve as exclusive bargaining agent” on

its projects without violating the First Amendment, Janus, 138 S.

Ct. at 2478. It also means the government may select construction

contractors “based upon [their] willingness to enter into a [project

labor] agreement,” Bos. Harbor, 507 U.S. at 230–31, just as private

construction employers may “condition . . . employment” on

“membership in [a] labor organization” under the National Labor

Relations Act, 29 U.S.C. § 158(f ). The procurement mandate is con-

sistent with these authorities.

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24 Opinion of the Court 25-11375

The associations assert, in a footnote, that the mandate also

“requires [their] members . . . to aid and abet the infringement of

employee rights under the Constitution.” The government cor-

rectly responds that the associations forfeited this argument by

making it in a single sentence unsupported by any reasoning or ci-

tations to authority. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d

678, 681 (11th Cir. 2014). The National Right to Work Legal De-

fense Foundation attempts to save the argument in an amicus brief,

but amici curiae ordinarily “may not expand the scope of an appeal

to implicate issues not [preserved] by the parties.” Glob. Marine

Expl., Inc. v. Republic of France, 151 F.4th 1296, 1310 (11th Cir. 2025)

(citation and internal quotation marks omitted), cert. denied, No.

25-900 (U.S. Mar. 23, 2026). The same principle forecloses the ami-

cus’s argument that mandating project labor agreements “compels

. . . contractors to speak with unions those contractors would oth-

erwise not want to speak with and . . . restricts contractors’ ability

to freely speak with their employees.” As the associations

acknowledge in their reply brief, their challenge focuses on “free

association” and not “free speech.”

4. The Associations Are Unlikely to Succeed under the

Other Statutes They Invoke.

The associations contend that the government violated the

Administrative Procedure Act by “fail[ing] to provide an adequate

explanation” for the mandate, “fail[ing] to meaningfully consider

the many problems associated” with project labor agreements,

overlooking “the negative impact . . . on small businesses,” and

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25-11375 Opinion of the Court 25

ignoring “overwhelming evidence that government-mandated

[agreements] discourage competition and increase costs.” The Ad-

ministrative Procedure Act instructs reviewing courts to “hold un-

lawful and set aside agency action, findings, and conclusions found

to be . . . arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A). The arbitrary-

and-capricious standard is “exceedingly deferential,” requiring only

that “the agency c[o]me to a rational conclusion.” Sierra Club v. Van

Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (citation and internal

quotation marks omitted). We may not “conduct [our] own inves-

tigation and substitute [our] own judgment for the administrative

agency’s decision.” Id. (citation and internal quotation marks omit-

ted).

The associations fail to establish that the government vio-

lated the Administrative Procedure Act. To start, the executive or-

der is “not reviewable for abuse of discretion” under the Adminis-

trative Procedure Act because “the President is not an agency” sub-

ject to its requirements. Franklin v. Massachusetts, 505 U.S. 788, 796,

800–01 (1992). The standard of review for the executive order

comes instead from the Federal Property Act. 40 U.S.C. § 121(a).

And the order complied with the Federal Property Act for the rea-

sons explained above.

The regulations promulgated by the Federal Acquisition

Regulatory Council also withstand scrutiny. Although the associa-

tions fault the Council for ignoring problems with mandatory pro-

ject labor agreements and dismissing comments with “minimal

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26 Opinion of the Court 25-11375

analysis,” the Council was acting in accordance with the President’s

directive to “implement[] the provisions of th[e] [executive] order.”

87 Fed. Reg. at 7365. Absent a defect in the order itself, it would

have been “arbitrary” and “capricious” and contrary to “law” for

the Council not to implement the order. 5 U.S.C. § 706(2)(A). Exec-

utive agencies are not at liberty to disregard lawful directives from

the President in whom “[t]he executive Power [is] vested.” U.S.

CONST. art. II, § 1; see also Bradford v. U.S. Dep’t of Lab., 101 F.4th 707,

731 (10th Cir. 2024) (holding agency did not violate the Adminis-

trative Procedure Act in implementing executive order “because

the agency had no discretion to act otherwise”), cert. denied, 145 S.

Ct. 1047 (2025). And in the areas where the executive order left

room for discretion, the Council “reviewed the public comments

in the development of the final rule” and made appropriate

changes accordingly. See 88 Fed. Reg. at 88709–26.

The associations assert that the Office of Management and

Budget violated the Office of Federal Procurement Policy Act by

promulgating guidance “without notice and opportunity for public

comment.” The government accurately describes this argument—

raised in a single sentence in the opening brief lacking any textual

analysis or citations to circuit precedent—as “cursor[y].” This lim-

ited briefing precludes the associations from “clearly establish[ing]

the[ir] burden of persuasion” to support a preliminary injunction.

Siegel, 234 F.3d at 1176 (citation and internal quotation marks omit-

ted).

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25-11375 Opinion of the Court 27

Finally, the associations and their supporting amicus cite to

section 8(d) of the National Labor Relations Act, which prohibits

the National Labor Relations Board from “compel[ling] either

party to agree to a proposal” or “mak[e] . . . a concession” during

collective bargaining. 29 U.S.C. § 158(d). But the National Labor

Relations Board is not compelling anyone to do anything; indeed,

the associations fail to explain how the Board is involved at all. The

lone precedent on which the associations rely involved efforts by

the Board to resolve a dispute between a union and an employer

after the union asked the employer to deduct union dues from its

employees’ paychecks. H. K. Porter Co. v. NLRB, 397 U.S. 99, 100–02

(1970). The Supreme Court held that the Board violated sec-

tion 8(d) when, instead of “referee[ing] the process of collective

bargaining,” it required the employer to “grant to the Union a con-

tract clause providing for the checkoff of union dues.” Id. at 102,

107–08 (alteration adopted) (citation and internal quotation marks

omitted). Here, in contrast, the government is specifying what

terms it will include in its own contracts, not resolving labor dis-

putes as a neutral arbiter.

It is well settled that the government can insist on its desired

terms when acting “as proprietor” instead of “as regulator,” Bos.

Harbor, 507 U.S. at 227, and that it can “participate freely in the mar-

ketplace” without violating the National Labor Relations Act, id. at

230. This f lexibility is particularly evident “in the construction in-

dustry,” because the Act “explicitly permits [private construction]

employers . . . to enter into prehire agreements . . . providing for

union recognition.” Id. (citing 29 U.S.C. § 158(f )). “To the extent

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28 Opinion of the Court 25-11375

that a private purchaser may choose a contractor based upon that

contractor’s willingness to enter into a prehire agreement, a public

entity as purchaser should be permitted to do the same.” Id. at 231.

Although the associations and the amicus observe that the Boston

Harbor Court “decline[d] the invitation to address the application

. . . of [section] 8(d),” id. at 232 n.2, nothing in that section prohibits

the government from specifying its needs as a proprietor. The as-

sociations are unlikely to succeed on the merits.

IV. CONCLUSION

We AFFIRM the denial of a preliminary injunction.

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25-11375 ABUDU, J., Concurring 1

ABUDU, Circuit Judge, Concurring in Part, and Concurring in the

Judgment:

I concur in part and concur in the judgment. 1 I write sepa-

rately to express disagreement with the opinion’s reliance on Learn-

ing Resources, Inc. v. Trump, 146 S.Ct. 628, 645 (2026) and Trump v.

Hawaii, 585 U.S. 667, 684 (2018), for the proposition that

40 U.S.C. § 121(a) contains similar “sweeping, discretion-confer-

ring language” as was at issue in those cases such that courts should

exercise “broad deference” to the President’s actions under this

statute.

1 For clarity, I concur in the majority opinion except for the portions that read:

And the Property Act requires a flexible understanding of necessity be-

cause it gives the President the authority to take actions that he con-

siders necessary. This “sweeping, discretion-conferring language,”

Learning Res., Inc. v. Trump, 146 S. Ct. 628, 645 (2026) (describing pro-

vision permitting the President to “‘take such action as he deems nec-

essary’ to adjust the imports of a good” (alteration adopted) (emphasis

omitted) (quoting 19 U.S.C. § 1862(b) (1970))), “exudes deference to

the President,” Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018) (interpret-

ing provision permitting the President to suspend immigration “for

such period as he shall deem necessary” and to impose “any re-

strictions he may deem to be appropriate” (quoting 8 U.S.C.

§ 1182(f))).

And:

The associations’ insistence on even greater specificity from Congress

undermines the broad deference to the President commanded by the

statutory text. See Learning Res., 146 S. Ct. at 645; Hawaii, 138 S. Ct. at

2408.

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2 ABUDU, J., Concurring 25-11375

Learning Resources and Hawaii dealt with the President’s au-

thority under two different statutes—50 U.S.C. § 1702(a)(1)(B) and

8 U.S.C. § 1182(f), respectively. To the extent that these statutes

contain similar language supporting the idea that courts must defer

to the President’s finding that an executive order or policy is nec-

essary or appropriate, the Supreme Court’s opinions provided dis-

tinct reasons for that deference in the context of the President’s au-

thority. 2 The statute at issue in this case, 40 U.S.C. § 121(a), unlike

either of those other two provisions, deals exclusively with the

President’s authority as a proprietor. Learning Resources and Hawaii

concern the President’s authority over issues of national security

and immigration, which are fundamentally distinct spheres of pres-

idential power. Indeed, as the Supreme Court noted in Hawaii, “in

the context of international affairs and national security” the Presi-

dent is not required to “conclusively link all of the pieces in the

puzzle” before courts grant weight to his empirical conclusions.

2 Furthermore, the Supreme Court in Hawaii acknowledged another limit on

presidential authority. The Court recognized that the President’s acts are cir-

cumscribed by constitutional prohibitions on animus, such as racial or reli-

gious discrimination, where the justification for the policy or action in ques-

tion is “‘inexplicable by anything but animus.’” Hawaii, 585 U.S. at 706 (quot-

ing Romer v. Evans, 517 U.S. 620, 635 (1996)); see also id. at 738 (Sotomayor, J.,

dissenting) (“[T]he dispositive and narrow question here is whether a reason-

able observer, presented with all ‘openly available data,’ the text and ‘historical

context’ of the Proclamation, and the ‘specific sequence of events’ leading to

it, would conclude that the primary purpose of the Proclamation is to disfavor

Islam and its adherents by excluding them from the country.” (quoting

McCreary Cnty. v. American Civil Liberties Union of Ky., 545 U.S. 844, 862–63

(2005))).

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25-11375 ABUDU, J., Concurring 3

Hawaii, 585 U.S. at 686 (citing Holder v. Humanitarian Law Project,

561 U.S. 1, 35 (2010)). This is, in part, because “national security

and foreign policy concerns arise in connection with efforts to con-

front evolving threats in an area where information can be difficult

to obtain and the impact of certain conduct difficult to assess.”

Holder, 561 U.S. at 34.

A court must look to the context in which presidential au-

thority is exercised when determining the scope of deference the

President enjoys. See Nat’l Aeronautics & Space Admin v. Nelson, 562

U.S. 134, 148 (2011) (“[J]udicial review of the Government’s chal-

lenged inquiries must take into account the context in which they

arise.”). Even if the level of deference afforded to the President in

issues concerning national security and immigration is analogously

broad as that afforded to the President in the proprietary context,

the basis for that deference is different. A grant of broad authority

in one realm does not necessarily translate into a basis for finding a

similarly-broad grant of authority in an entirely different context,

even when statutory grants of power might be superficially similar.

Both Learning Resources and Hawaii dealt with the intersec-

tion between congressional authority and executive power in areas

where the scope of Congress’s power and the President’s power

are amorphous and evolving.3 We need not rely on those cases

3 See Learning Res., 146 S.Ct. at 642 (“As a general matter, the President of

course enjoys some independent constitutional powers over foreign affairs

even without congressional authorization. And Congress certainly may in-

tend to give the President substantial authority and flexibility in many foreign

affairs or national security contexts. . . . [However], the President and

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4 ABUDU, J., Concurring 25-11375

because the parameters of the authority at issue here are clearly

delineated and limited. While all three statutes contain similar lan-

guage, the President’s ability to prescribe policies and directives un-

der 40 U.S.C. § 121(a) is more tightly constrained by the clause that

states the “policies must be consistent with [the] subtitle.” This

type of restricting language is not present in

50 U.S.C. § 1701(a)(1)(B) and 8 U.S.C. § 1182(f).

Thus, contextual differences between Learning Resources, Ha-

waii, and the instant case are significant enough to doubt the ap-

plicability of Learning Resources or Hawaii when concluding that the

President enjoys broad authority under 40 U.S.C. § 121(a). Fortu-

nately, this Court does not need to opine on that issue. Executive

order No. 14,063 at issue here fits squarely within the plain lan-

guage of 40 U.S.C. § 121(a). We need not definitively analyze

whether the statute contains “sweeping, discretion-conferring lan-

guage” in the same way as language in very different statutes; nor

should we try to advance a one-size-fits-all approach to Presidential

authority. See Liverpool, N.Y. & P.S.S. Co. v. Emigration Comm’rs, 113

U.S. 33, 39 (1885) (explaining that courts should “never . . . formu-

late a rule of constitutional law broader than is required by the pre-

cise facts to which it is to be applied”); Brockett v. Spokane Arcades,

Congress do not enjoy concurrent constitutional authority to impose tariffs

during peacetime.” (alterations adopted) (citations and quotation marks omit-

ted)); Hawaii, 585 U.S. at 690 (“Congress’s decision to authorize a benefit for

many of America’s closest allies did not implicitly foreclose the Executive from

imposing tighter restrictions on nationals of certain high-risk countries.” (cita-

tion and quotation marks omitted)).

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25-11375 ABUDU, J., Concurring 5

Inc., 472 U.S. 491, 501 (1985) (same); Immigr. & Naturalization Serv.

v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and

agencies are not required to make findings on issues the decision of

which is unnecessary to the results they reach.”).