Bradford v. U.S. Department of Labor

101 F.4th 707

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 30, 2024
• Docket: 22-1023
• Status: Published

Opinion

Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS April 30, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

DUKE BRADFORD; ARKANSAS VALLEY ADVENTURES, LLC, AKA AVA Rafting and Zipline; COLORADO RIVER OUTFITTERS ASSOCIATION,

Plaintiffs - Appellants,

v. No. 22-1023

U.S. DEPARTMENT OF LABOR; U.S. DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION; JOSEPH R. BIDEN, President of the United States; JULIE A. SU, U.S. Secretary of Labor; JESSICA LOOMAN, Acting Administrator,

Defendants - Appellees.

------------------------------

ECONOMIC POLICY INSTITUTE; NATIONAL EMPLOYMENT LAW PROJECT; NATIONAL ABILITY CENTER; NATIONAL WOMEN'S LAW CENTER; STATE OF ARIZONA; SERVICE EMPLOYEES INTERNATIONAL UNION; STATE OF ALABAMA; STATE OF ARKANSAS; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF LOUISIANA; STATE OF MISSISSIPPI; STATE OF MISSOURI;

 Pursuant to Fed. R. App. P. 43(c)(2), Julie A. Su is substituted for Martin J. Walsh, former U.S. Secretary of Labor. Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 2

STATE OF MONTANA; STATE OF NEBRASKA; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; PUBLIC CITIZEN; SAFARI CLUB INTERNATIONAL; COMMUNICATIONS WORKERS OF AMERICA; STATE OF ILLINOIS; STATE OF CALIFORNIA; STATE OF CONNECTICUT; STATE OF DELAWARE; DISTRICT OF COLUMBIA; STATE OF MAINE; STATE OF MARYLAND; STATE OF MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH CAROLINA; STATE OF OREGON; STATE OF PENNSYLVANIA; STATE OF RHODE ISLAND; STATE OF VERMONT; STATE OF WASHINGTON,

Amici Curiae. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:21-CV-03283-PAB-STV) _________________________________

Caleb Kruckenberg, Pacific Legal Foundation, Arlington, Virginia (Michael A. Poon, Pacific Legal Foundation, Sacramento, California, and Steven M. Simpson, Institute for Justice, Arlington, Virginia, with him on the briefs), for Plaintiffs-Appellants.

Daniel Winik, Attorney, U.S. Department of Justice, Civil Division, Washington, D.C. (Brian M. Boynton, Principal Deputy Assistant Attorney General; U.S. Department of Justice, Civil Division, Washington, D.C.; Cole Finegan, United States Attorney for the State of Colorado; and Mark B. Stern, Attorney, United States Department of Justice, Civil Division, Washington, D.C., with him on the brief), for Defendants-Appellees.

Drew C. Ensign, Deputy Solicitor General (Kris Mayes, Arizona Attorney General, with him on the amici brief), Office of the Attorney General for the State of Arizona, Phoenix,

2 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 3

Arizona, filed on behalf of the States of Arizona, Alabama, Arkansas, Georgia, Idaho, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, and South Carolina), for Amici Curiae.

Jeremy E. Clare and Regina Lennox, Safari Club International, Washington, D.C., filed an amicus brief on behalf of Safari Club International in support of Plaintiffs-Appellants.

Lucas C. Townsend, Gibson Dunn & Crutcher, Washington, D.C.; Dayna Zolle Hauser, Gibson Dunn & Crutcher, Denver, Colorado and Ryan Azad, Gibson, Dunn & Crutcher, San Francisco, California, filed an amicus brief on behalf of The National Ability Center in support of Plaintiffs-Appellants.

Nandan M. Joshi and Allison M. Zieve, Public Citizen Litigation Group, Washington, D.C., filed an amicus brief on behalf of Public Citizen in support of Defendants- Appellees.

Sean A. Lev and JoAnn Kintz, Democracy Forward Foundation, Washington, D.C., filed an amicus brief on behalf of National Employment Law Project, Communications Workers of American, Service Employees International Union, National Women’s Law Center, and Economic Policy Institute in support of Defendants-Appellees.

Sarah A. Hunger, Deputy Solicitor General, Kwame Raoul, Attorney General and Jane Elinor Notz, Solicitor General, Office of the Attorney General for the State of Illinois, Chicago, Illinois, filed an amicus brief on behalf of the States of Illinois, California, Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington in support of Defendants-Appellees. _________________________________

Before HOLMES, Chief Judge, EBEL, and EID, Circuit Judges. _________________________________

HOLMES, Chief Judge. _________________________________

Plaintiffs-Appellants Duke Bradford, Arkansas Valley Adventure (AVA), and

the Colorado River Outfitters Association (CROA) appeal from the District of

Colorado’s order denying their motion to preliminarily enjoin a Department of Labor

(DOL) rule requiring federal contractors to pay their employees a $15.00 minimum

3 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 4

hourly wage. The DOL promulgated the rule pursuant to a directive in Executive

Order (EO) 14,026, which President Biden issued on April 27, 2021. EO 14,026

imposed the minimum wage requirement on most federal contractors, and it

rescinded an exemption for recreational services outfitters that operate pursuant to

permits on federal lands, which President Trump had adopted in EO 13,838.

President Biden issued EO 14,026 pursuant to his authority under the Federal

Property and Administrative Services Act (“FPASA”), 40 U.S.C. §§ 101–1315,

which authorizes the President to “prescribe policies and directives that the President

considers necessary to carry out” FPASA and that are “consistent with” FPASA, 40

U.S.C. § 121(a). One purpose of FPASA is to “provide the Federal Government with

an economical and efficient system for . . . [p]rocuring and supplying property and

nonpersonal services.” 40 U.S.C. § 101(1).1

Appellants argue that the district court erred in concluding that FPASA

authorizes the minimum wage rule as applied to recreational services permittees

because the government does not procure any services from them or supply anything

to them. They also argue that the DOL acted arbitrarily and capriciously in

promulgating the minimum wage rule without exempting recreational service

permittees.

1 As discussed further infra, a “[n]onpersonal services contract means a contract under which the personnel rendering the services are not subject . . . to the supervision and control usually prevailing in relationships between the Government and its employees.” 48 C.F.R. § 37.101. 4 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 5

Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm. We first

conclude that Appellants have not shown a substantial likelihood of success on the

merits that the DOL’s rule was issued without statutory authority. Specifically, the

district court did not err in concluding that FPASA likely authorizes the minimum

wage rule because the DOL’s rule permissibly regulates the supply of nonpersonal

services and advances the statutory objectives of economy and efficiency.

Furthermore, we hold that Appellants have not shown a substantial likelihood of

success on the merits that the DOL’s rule is arbitrary and capricious. In sum, we

conclude that the district court did not err in denying Appellants’ motion for a

preliminary injunction.

I

A

On February 12, 2014, President Obama issued Executive Order 13,658,

Establishing a Minimum Wage for Contractors, pursuant to his authority under

FPASA. See 79 Fed. Reg. 9851 (Feb. 12, 2014) (to be codified at 29 C.F.R. pt.10).

FPASA authorizes the President to “prescribe policies and directives that the

President considers necessary to carry out” the Act and that are “consistent with” the

Act. 40 U.S.C. § 121(a). The purpose of FPASA is to “provide the Federal

Government with an economical and efficient system for,” inter alia, “[p]rocuring

and supplying property and nonpersonal services.” 40 U.S.C. § 101(1).

EO 13,658 directed executive departments and agencies, including the DOL, to

include a clause in certain “new contracts, contract-like instruments, and

5 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 6

solicitations” specifying that the contractor will pay a minimum wage of $10.10 per

hour. 79 Fed. Reg. at 9851. EO 13,658 reflected President Obama’s determination

that “[r]aising the pay of low-wage workers increases their morale and the

productivity and quality of their work, lowers turnover and its accompanying costs,

and reduces supervisory costs.” Id.

The order directed the Secretary of the DOL (the “Secretary”) to issue

regulations implementing the order, and, pursuant to this authority, the order

authorized the Secretary to define a “new contract or contract-like instrument.” Id. at

9852–53.

Following notice and comment, the DOL promulgated a final rule

implementing EO 13,658. See Establishing a Minimum Wage for Contractors, 79

Fed. Reg. 60,634 (Oct. 7, 2014) (to be codified at 29 C.F.R. pt. 10). The rule defined

a contract as “an agreement between two or more parties creating obligations that are

enforceable or otherwise recognizable at law,” which includes “any . . . permits.” 79

Fed. Reg. at 60,722. In response to public comments, the rule clarified that special

use permits (SUPs) issued by the U.S. Forest Service (USFS), Commercial Use

Authorizations (CUAs) issued by the National Park Service (NPS), and “outfitter and

guide permit agreements” with the Bureau of Land Management (BLM) and the U.S.

Fish and Wildlife Service (USFWS), all qualified as contracts under EO 13,658. See

id. at 60,652, 60,655.

In 2018, pursuant to his authority under FPASA, President Trump issued EO

13,838, Exemption From Executive Order 13658 for Recreational Services on

6 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 7

Federal Lands. See 83 Fed. Reg. 25,341 (May 25, 2018). EO 13,838 concluded that

applying EO 13,658 to “outfitters and guides operating on Federal lands . . . does not

promote economy and efficiency in making these services available to those” seeking

to recreate on federal lands. Id. Because “[s]easonal recreational workers have

irregular work schedules, a high incidence of overtime pay, and an unusually high

turnover rate,” EO 13,838 reasoned that a minimum wage “threatens to raise

significantly the cost of guided” services and “would generally entail large negative

effects on hours worked,” thereby restricting access to recreation on Federal lands.

Id. Therefore, EO 13,838 exempted from coverage under EO 13,658 “contracts or

contract-like instruments entered into with the Federal Government in connection

with seasonal recreational services or seasonal recreational equipment rental for the

general public on Federal lands.” Id. However, the order specified that the

“exemption shall not apply to lodging and food services associated with seasonal

recreational services.” Id. The DOL thereafter promulgated a final rule that

implemented EO 13,838. See Minimum Wage for Contractors, 83 Fed. Reg. 48,537

(Sept. 26, 2018) (to be codified at 29 C.F.R. pt. 10).

On April 27, 2021, President Biden issued EO 14,026, Increasing the

Minimum Wage for Federal Contractors, again pursuant to his authority under

FPASA. See 86 Fed. Reg. 22,835 (Apr. 27, 2021) (to be codified at 29 C.F.R. pts.

10, 23). Set to begin on January 30, 2022, EO 14,026 raised the minimum wage

specified under EO 13,658 to $15 per hour. See id. at 22,835–37. The order

reflected President Biden’s determination that “[r]aising the minimum wage enhances

7 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 8

worker productivity and generates higher-quality work by boosting workers’ health,

morale, and effort; reducing absenteeism and turnover; and lowering supervisory and

training costs.” Id. at 22,835.

EO 14,026 also revoked EO 13,838, thereby eliminating the exemption from

the minimum wage requirement for seasonal recreational service permittees. See id.

at 22,836–37. As with EO 13,658, a contract falls within the scope of EO 14,026

only if (1) workers’ wages under the contract “are governed by the Fair Labor

Standards Act [(“FLSA”)], the Service Contract Act [(“SCA”)], or the Davis-Bacon

Act [(“DBA”)], and (2) the contract is, as relevant here, “for services covered by the

[SCA]” or is “entered into with the Federal Government in connection with Federal

property or lands and related to offering services for . . . the general public.” Id. at

22,837.

Following notice and comment, the DOL promulgated a final rule that

implemented EO 14,026. See Increasing the Minimum Wage for Federal

Contractors, 86 Fed. Reg. 67,126 (Nov. 24, 2021) (to be codified at 29 C.F.R. pts.

10, 23). Responding to comments from “stakeholders in the outdoor recreational

industries,” the rule clarified that, based on the DOL’s “understanding” of these

businesses, the minimum wage requirement applies to special use permits issued by

the Forest Service, “CUA[s] . . . with the NPS, and “outfitter and guide permit

agreements with the BLM and USFWS.” Id. at 67,147–48. “The principal purpose

of these legal instruments,” according to the DOL, “seems to be furnishing services

through the use of service employees,” in which case they are covered under the SCA

8 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 9

and, thus, EO 14,026. Id. at 67,148. Alternatively, the DOL stated that Section

8(a)(i)(D) of EO 14,026 covers these instruments as agreements “with the Federal

Government in connection with Federal property or lands and related to offering

services for . . . the general public.” Id. at 67,151.

The DOL’s minimum wage rule also clarified that the FLSA’s overtime pay

requirement of at least one and one-half times an employee’s normal rate, see 29

U.S.C. § 207(a), applies under EO 14,026 to “holders of CUAs issued by the NPS,

and permits issued by the Forest Service, BLM and USFWS.” 86 Fed. Reg. at

67,152.

Finally, in the rule, the DOL responded to comments asserting that, “unlike

procurement contracts,” licenses or permits for the provision of recreational services

on federal lands “do not contain a mechanism by which the holder of the instrument

can ‘pass on’ potential costs related to operation of the Executive order to contracting

agencies,” as well as comments asserting that the application of the minimum-wage

requirement to “outfitter and guide permits would result in . . . business[es] needing

to reduce employee work hours, reduce services, or increase prices.” Id.

Specifically, in responding, the DOL “recognize[d] and acknowledge[d] that there

may be particular challenges and constraints experienced by non-procurement

contractors that do not exist under more traditional procurement contracts.” Id. But

it “anticipate[d] that the economy and efficiency benefits of” a higher minimum wage

would “substantially offset any potential adverse economic effects” by “reduc[ing]

absenteeism and turnover in the workplace, improv[ing] employee morale and

9 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 10

productivity, reduc[ing] supervisory and training costs, . . . increas[ing] the quality of

services provided to the Federal Government and the general public,” and

ultimately—by virtue of that increased quality—“attract[ing] more customers and

result[ing] in increased sales.” Id. at 67,152–53. Furthermore, the DOL reasoned

that “[s]uch benefits may be realized even where the contractor has limited ability to

transfer costs to the contracting agency or raise prices of the services that it offers.”

Id. at 67,153.

B

Plaintiff-Appellant AVA provides guided outdoor excursions in Colorado, and

Plaintiff-Appellant Duke Bradford owns and operates AVA. Aplts.’ App. at 13 ¶¶ 1,

3 (Compl., filed Dec. 7, 2021). AVA conducts some of its tours on federal land

pursuant to two government permits. Id. at 13 ¶ 4. One is a “Special Recreation

Permit” from BLM that authorizes fishing trips in Colorado. Id. Another is a special

use permit from USFS for operations in the White River National Forest. Id. For

overnight trips, AVA pays guides a trip salary rather than an hourly wage. Id. at 14

¶ 6. If converted into an hourly rate, these salaries typically exceed $15 per hour.

Id.; see also id. at 53 ¶ 5 (Decl. of Duke Bradford, filed Dec. 9. 2021). Accordingly,

AVA pays its guides more than the minimum wage, which, in Colorado, is $12.56 per

hour. Id. at 14 ¶ 6; see also id. at 170, Tr. 34:5–13 (Test. of Duke Bradford, Jan. 6,

2022). However, many guides work more than 40 hours per week, and “AVA’s

wages typically do not exceed the $15/hour threshold when including time-and-a-half

overtime wages.” Id. at 14 ¶¶ 6–7. As such, AVA alleges that it would incur

10 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 11

compliance costs and increased labor costs should EO 14,026 go into effect and it

was accordingly “required to pay overtime, based on a $15/hour minimum wage.”

Id. at 14 ¶ 7; see id. at 155–58, Tr. 19:22–22:2.

CROA is a trade association that represents the interests of its members, which

consist of approximately fifty river-guide outfitters, including AVA. See id. at 55

¶¶ 3, 6 (Decl. of David Costlow, filed on Dec. 7, 2021); Aplts.’ Opening Br. at 11.

Most of CROA’s members operate on federal lands under special use permits. See

id. at 55 ¶ 3. Like AVA, CROA’s members typically pay their guides a flat fee on a

per-trip basis. Id. at 55 ¶ 5. CROA alleges that “[i]ncreasing the wages for guides to

$15/hour and paying overtime based on that wage would dramatically alter the wage

structure for many of CROA’s members.” Id. at 56 ¶ 7. CROA expects that the new

minimum wage requirement will cause labor costs to increase for its members, which

will cause members to raise prices and eliminate trips. Id. at 56 ¶¶ 7–8.

C

Appellants filed a Complaint in the U.S. District Court for the District of

Colorado on December 7, 2021, in which they challenged the DOL’s rule

implementing EO 14,026 and sought declaratory relief. Id. at 11–13. In Count I,

they asserted that FPASA did not authorize the DOL’s “rule,” and therefore the rule

violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(C), as

“agency action . . . in excess of statutory . . . authority.” Id. at 25–27 ¶¶ 51–59. In

Count II, they asserted that the “rule” is “arbitrary and capricious,” in violation of

Section 706(2)(A). Id. at 27–28 ¶¶ 60–65. And, in Count III, they asserted that

11 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 12

because FPASA did not authorize the “rule,” it violated the separation of powers, and

even if FPASA did authorize the rule, the statute unconstitutionally delegated

legislative power to the President and the DOL. Id. at 28–29 ¶¶ 66–77. Appellants

then filed a Motion for a Preliminary Injunction. Id. at 31 (Mot. for Prelim. Injunc.,

filed Dec. 9, 2021).

After holding an evidentiary hearing, the district court denied Appellants’

motion. Id. at 90, 136–37 (Dist. Ct. Order, filed Jan. 24, 2022). It first concluded

that Mr. Bradford and AVA had Article III standing, but that CROA did not.2 Id. at

101–05. The court then denied the Appellants’ motion because it concluded that

Appellants failed to demonstrate a “likelihood of success on the merits” on each of

their claims. Id. at 121, 130, 135–36. It did not reach any of the other factors

governing preliminary injunctions. Id. at 135. Appellants filed a notice of

interlocutory appeal on January 26, 2022, and on February 28, 2022, the district court

denied their motion for an injunction pending appeal.

2 Appellees do not dispute that Mr. Bradford and AVA have standing. Because at least one appellant has standing, we may consider this appeal. See Massachusetts v. Env’t Prot. Agency, 549 U.S. 497, 518 (2007) (“Only one of the petitioners needs to have standing to permit us to consider the petition for review.”). Appellants nevertheless argue in a footnote that the district court erred in concluding that CROA does not have Article III standing. See Aplts.’ Opening Br. at 13–14 n.1. However, “[a]rguments raised in a perfunctory manner, such as in a footnote, are waived.” United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc). And we have applied the waiver doctrine from Hardman where a plaintiff challenged in a footnote the district court’s conclusion that the plaintiff lacked standing. See Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 793 n.5 (10th Cir. 2009). Accordingly, we conclude that Appellants waived their challenge concerning CROA’s standing on appeal. 12 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 13

Appellants also filed a motion for an injunction pending appeal with this

Court, which a two-judge panel granted on February 17, 2022. See Bradford v. U.S.

Dep’t of Lab., No. 22-1023, at *1 (10th Cir., filed Feb. 17, 2022) (unpublished)

[hereinafter “Motions Panel Order”]. Specifically, the motions panel enjoined the

rule “in the context of contracts or contract-like instruments entered into with the

federal government in connection with seasonal recreational services or seasonal

recreational equipment rental for the general public on federal lands.” Id. at 2. The

rule had gone into effect on January 30, 2022, and, except as enjoined, remains in

effect today.

II

Appellants raise two overarching arguments on appeal. First, Appellants claim

that the district court erred in concluding that they are unlikely to succeed on the

merits of their claim that the DOL’s minimum wage rule exceeded the authority

granted under FPASA. See Aplts.’ Opening Br. at 16–38. Second, they argue that

the district court erred in concluding that they are unlikely to succeed on the merits

of their claim that the rule is arbitrary and capricious. See id. at 38–48. As such,

Appellants claim that the district court erred in denying their motion for a

After carefully considering the briefs and the parties’ oral arguments, we

conclude that the district court correctly denied Appellants’ motion for a preliminary

injunction. In reaching that conclusion, we first hold that Appellants have not shown

a likelihood of success on the merits that the DOL’s rule was issued without statutory

13 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 14

authority. More specifically, the district court did not err in concluding that FPASA

likely authorizes the minimum wage rule because the DOL’s rule permissibly

regulates the supply of nonpersonal services and advances the statutory objectives of

economy and efficiency. Furthermore, we hold that Appellants have not

demonstrated a likelihood of success on the merits that the DOL’s rule is arbitrary

and capricious. Accordingly, we uphold the district court’s order.

III

“We review the district court[’s] denial of a preliminary injunction for an

abuse of discretion.” Diné Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d

1276, 1281 (10th Cir. 2016). “An abuse of discretion occurs only when the trial

court bases its decision on an erroneous conclusion of law or where there is no

rational basis in the evidence for the ruling.” Wilderness Workshop v. U.S. Bureau of

Land Mgmt., 531 F.3d 1220, 1223–24 (10th Cir. 2008) (quoting Utah Licensed

Beverage Ass’n v. Leavitt, 256 F.3d 1061, 1065 (10th Cir. 2001)).

To obtain a preliminary injunction, a “plaintiff must establish . . . (1) a

substantial likelihood of prevailing on the merits[,] (2) irreparable harm unless the

injunction is issued[,] (3) that the threatened injury outweighs the harm that the

preliminary injunction may cause the opposing party[,] and (4) that the injunction, if

issued, will not adversely affect the public interest.” Diné, 839 F.3d at 1281 (quoting

Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002)). “[B]ecause a preliminary

injunction is an extraordinary remedy, the [movant’s] right to relief must be clear and

unequivocal.” Wilderness Workshop, 531 F.3d at 1224 (alterations in original)

14 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 15

(quoting Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256,

1260 (10th Cir. 2004)). We “may affirm a district court decision ‘on any grounds for

which there is a record sufficient to permit conclusions of law, even grounds not

relied upon by the district court.’” Dominion Video Satellite, 269 F.3d at 1157

(quoting United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.1994)).

IV

Appellants first argue that FPASA “only empowers the President to control the

‘procur[ement] and supply[]’ of nonpersonal services by ‘the Federal Government.’”

Aplts.’ Opening Br. at 18 (alterations in original) (quoting 40 U.S.C. § 101(1)).

However, Appellants note that “the government does not supply the relevant

recreational services” nor does it “procur[e] anything.” Id. Thus, Appellants assert

that “[i]t makes no sense to adopt DOL’s view that the agency can regulate a

company, like AVA, [which] neither procures nor supplies any nonpersonal services

to the government, just because AVA later supplies nonpersonal services to its

customers.” Id. at 19. Appellants thus contend that the DOL’s rule is not a

permissible regulation under FPASA. In our view, however, Appellants’ argument is

contrary to the plain text of FPASA.

FPASA authorizes the President to “prescribe policies and directives that the

President considers necessary to carry out” the Act and that are “consistent with” the

Act. 40 U.S.C. § 121(a). “The purpose” of FPASA “is to provide the Federal

Government with an economical and efficient system for . . . (1) [p]rocuring and

15 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 16

supplying property and nonpersonal services . . . (2) [u]sing available property[,] (3)

[d]isposing of surplus property [, and] (4) [r]ecords management.” 40 U.S.C. § 101

(emphasis added). Thus, as our precedent makes clear, the Act authorizes the

President to issue “policies and directives” that are consistent with the statute’s

purposes—including regulating the supply of nonpersonal services. See City of

Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901, 914 (10th Cir. 2004)

(concluding that “Congress chose to utilize a relatively broad delegation of authority

in [FPASA]” but that Congress “did instruct the President’s exercise of authority

should establish ‘an economical and efficient system for . . . the procurement and

supply’ of property” (omission in original) (quoting 40 U.S.C. § 471 (2000), now

codified as amended at 40 U.S.C. § 101)). Crucially, contrary to Appellants’

assertions, § 101 of FPASA does not specify any particular entity that must receive

the nonpersonal services to which it refers.

FPASA defines “nonpersonal services” as “contractual services designated by

the Administrator of General Services, other than personal and professional

services.” 40 U.S.C. § 102(8). The Federal Acquisition Regulation (FAR), which

heads of agencies—including the Administrator of General Services—promulgated

pursuant to authority granted under FPASA, see 48 C.F.R. § 1.103(b); 40 U.S.C.

§ 121(c), explains the difference between “personal” and “nonpersonal” service

contracts. See also Kentucky v. Biden, 23 F.4th 585, 604 n.11 (6th Cir. 2022) (citing

FAR to delineate between “personal” and “nonpersonal” services contracts). “A

personal services contract is characterized by the employer-employee relationship it

16 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 17

creates between the Government and the contractor’s personnel.” 48 C.F.R.

§ 37.104(a). By contrast, a “[n]onpersonal services contract means a contract under

which the personnel rendering the services are not subject . . . to the supervision and

control usually prevailing in relationships between the Government and its

employees.” 48 C.F.R. § 37.101.

Here, Appellants “supply[]” services, 40 U.S.C. § 101(1), through the guided

tours they offer. And the government’s provision of federal permits to Appellants is

a part of “an economical and efficient system” for supplying those nonpersonal

services to the public. Id. Indeed, the DOL’s understanding of the contractual

arrangement is that outfitters enter into agreements with the BLM, and “[t]he

principal purpose of these legal instruments” is for the government to “furnish[]

services through the use of service employees.” 86 Fed. Reg. at 67,148.

Furthermore, the permits the government issues to the outfitters contain terms

reflecting the government’s “concern[] with the ways in which outfitters supply

recreational services to the public,” such as the need for outfitters to “use hardened

trails within riparian areas” in order to avoid “damag[ing] the land.” Bradford v.

U.S. Dep’t of Lab., 582 F. Supp. 3d 819, 834 (D. Colo. Jan. 24, 2022); see also

Aplees.’ Suppl. App. at 4–5 (AVA Special Recreation Permit Stipulations, dated June

16, 2014).

Moreover, as Mr. Bradford testified, AVA’s permit with BLM prohibits AVA

from representing that BLM provides the guiding services customers receive from

AVA. See Aplts.’ App. at 148–49, Tr. 12:6–13:5 (Test. of Duke Bradford, dated Jan.

17 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 18

6, 2022); id. at 261 (BLM Special Recreation Permit, dated July 26, 2012). Thus, in

terms of the relationship between the government and AVA, the permit qualifies as a

“nonpersonal services contract,” as there is no direct employment relationship

between BLM and AVA’s guides. 48 C.F.R. § 37.101. And § 101 of FPASA does

not specify any particular entities that must receive the “nonpersonal services” to

which it refers, thereby covering—as a textual matter—services Appellants supply to

the public. 40 U.S.C. § 101. Stated another way, there is no explicit requirement in

§ 101 that the government itself directly supply the property or services under

FPASA.

Furthermore, Appellants’ interpretation—viz., that “supplying nonpersonal

services” solely encompasses transactions in which a contractor provides services to

the government—would render portions of FPASA superfluous. Aplts.’ Opening Br.

at 19. As Appellees argue, “[w]hen a contractor provides goods or services directly

to the federal government, the government is ‘procuring’ those goods or services.”

Aplees.’ Resp. Br. at 17. If we interpret the statute such that a contractor is

“supplying” services to the government when the government is simultaneously

“procuring” those services, “supply[]” retains no meaning independent of

“procur[e].” 40 U.S.C. § 101(1). Indeed, doing so would violate the canon requiring

“that [a] statute should be construed so that effect is given to all its provisions, so

that no part will be inoperative or superfluous, void or insignificant.” Rubin v.

18 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 19

Islamic Republic of Iran, 583 U.S. 202, 213 (2018) (alteration in original) (quoting

Corley v. United States, 556 U.S. 303, 314 (2009)).3

Thus, contrary to Appellants’ assertions, “supplying . . . nonpersonal services”

appears to encompass transactions in which a contractor provides services to the

public. 40 U.S.C. § 101. As such, Appellants—through the guided tours they offer

to the public—“supply[]” “nonpersonal services” within the meaning of FPASA. Id.

Consistent with the language of FPASA and our precedent, then, the President “may

prescribe policies and directives” regulating the supply of these nonpersonal services.

40 U.S.C. §§ 101, 121(a).4

Accordingly, Appellants are unlikely to succeed on the merits in showing that

the DOL’s rule is not a permissible regulation under FPASA. Stated another way,

3 To respond to this superfluity problem, Appellants offer a hypothetical involving campground services. They contend that the government may “supply” services by providing access to a federal campground while simultaneously “procuring” contractual services from a campground host. Aplts.’ Opening Br. at 19–20; Aplts.’ Reply Br. at 11–12. But this example fails to account for the definition of “nonpersonal services.” See 40 U.S.C. § 102(8). If the government is “supplying” services directly by providing access to the campground, they are not supplying “nonpersonal services” because the services are not “contractual,” id., as they are not provided by a contractor. 4 Appellants contend that, if our interpretation were correct, it would be “difficult to imagine any economic transaction that falls outside the statute’s reach.” Aplts.’ Opening Br. at 19. However, we note that the President’s authority extends only to entities that contract with the federal government—viz., the minimum wage rule applies to only those employees of a contracting entity who work on or in connection with a covered contract. See 86 Fed. Reg. at 22,835. As such, we are unpersuaded by Appellants’ rhetoric that the authority exercised here would encompass all “economic transaction[s].” Aplts.’ Opening Br. at 19. 19 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 20

there is a clear relationship between the statute conferring authority (i.e., FPASA)

and the DOL’s rule.

Next, Appellants contend that the “DOL’s invocation of the Procurement Act

cannot be justified.” Aplts.’ Opening Br. at 24. Specifically, Appellants assert

that—under FPASA—the President’s authority is “limited to actions that he

considers ‘essential’ or ‘indispensable’ to provide the ‘prudent use’ of government

resources ‘without wasting materials.’” Id. at 23. Here, however, Appellants claim

that the net result of the DOL’s rule “will be more costs to the public, to non-

procurement firms, and to the government—the opposite of a permitted action under

[FPASA].” Id. at 24. Yet Appellants’ argument lacks merit.

FPASA authorizes only “policies and directives that the President considers

necessary” to “provide . . . an economical and efficient system for” procurement and

supply. 40 U.S.C. §§ 101(1), 121(a); see also City of Albuquerque, 379 F.3d at 914;

UAW-Lab. Emp. & Training Corp. v. Chao, 325 F.3d 360, 366 (D.C. Cir. 2003). To

fall within the authority granted, orders issued under FPASA must have a

“‘sufficiently close nexus’ to the values of [economy and efficiency].” Chao, 325

F.3d at 366 (quoting Am. Fed’n of Lab. & Cong. of Indus. Orgs. v. Kahn, 618 F.2d

784, 788, 792 (D.C. Cir. 1979)); City of Albuquerque, 379 F.3d at 914 (concluding

that an executive order under FPASA must be “sufficiently related” to “establish[ing]

‘an economical and efficient system’” for procurement and supply (quoting 40 U.S.C.

§ 471 (2000), currently codified at 40 U.S.C. § 101)).

20 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 21

Contrary to Appellants’ interpretation, however, “‘[e]conomy’ and ‘efficiency’

are not narrow terms.” Kahn, 618 F.2d at 789. “[T]hey encompass those factors like

price, quality, suitability, and availability of goods or services that are involved in all

acquisition decisions.” Id. The standard is a “lenient” one, and courts have respected

the President’s judgment as to how a given executive order is likely to advance the

statute’s objectives. Chao, 325 F.3d at 367.

Here, the DOL’s rule has a “sufficiently close nexus” to the values of economy

and efficiency. Id. at 366 (quoting Kahn, 618 F.2d at 792). According to the

government, the DOL’s rule “promotes economy and efficiency” by “enhanc[ing]

worker productivity and generat[ing] higher-quality work by boosting workers’

health, morale, and effort; reducing absenteeism and turnover; and lowering

supervisory and training costs.” 86 Fed. Reg. at 22,835. Thus, even if the rule could

plausibly increase costs for the government and the public, enhanced worker

productivity and higher quality work—standing alone—are sufficient justifications to

invoke FPASA. In other words, the President could consider the DOL’s minimum

wage rule necessary to “provide . . . an economical and efficient system for”

procurement and supply. 40 U.S.C. § 101.

Indeed, the D.C. Circuit’s decision in Chao supports our conclusion. There,

the court upheld an executive order requiring federal contractors to notify employees

of their rights not to join a union, on the basis of President Bush’s judgment that

“[w]hen workers are better informed of their rights, . . . their productivity is

enhanced.” Chao, 325 F.3d at 366. Chao reached this conclusion even though “[t]he

21 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 22

link may seem attenuated” and the order could have produced the “opposite effects or

no effects at all.” Id. at 366–67. Accordingly, here, like in Chao, President Biden

could have determined that the DOL’s rule advanced the statutory values of economy

and efficiency by enhancing worker productivity, even if the rule could theoretically

produce the opposite effects or no effects at all.

Furthermore, we could also uphold the DOL’s rule under Appellants’ stringent

interpretation of economy and efficiency—viz., the President must “show a ‘nexus

between the wage and price standards and likely savings to the Government.’”

Aplts.’ Opening Br. at 22 (quoting Kahn, 618 F.2d at 793). Here, the DOL

“anticipates that the economy and efficiency benefits of [EO] 14[,]026 will offset

potential costs.” 86 Fed. Reg. at 67,152. Specifically, it expects that “reduc[ing]

absenteeism and turnover in the workplace, improv[ing] employee morale and

productivity, [and] reduc[ing] supervisory and training costs” “will substantially

offset any potential adverse economic effects.” Id. at 67,153. This analysis also

applies to “permittees, licensees, and CUA holders”—such as AVA and other CROA

members. Id. Admittedly, DOL concedes that permittees have a “limited ability to

transfer costs to the contracting agency or raise prices of the services that [they]

offer[],” which “may result in reduced profits in certain instances.” Id. at 67,153,

67,206. However, DOL makes clear that such reduced profits will only occur when

“none of the beneficial effects”—such as reduced absenteeism and improved

productivity—“discussed in [DOL’s] analysis appl[ies].” Id. at 67,206. Thus, even

22 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 23

under Appellants’ interpretation, the DOL’s rule has a sufficiently close nexus to the

values of economy and efficiency.

Indeed, Kahn—i.e., the case that Appellants primarily rely upon to support

their position—confirms our conclusion. There, the D.C. Circuit upheld an executive

order issued under FPASA that required federal contractors to comply with certain

wage and price controls to curb inflation. See Kahn, 618 F.2d at 785–86. The court

acknowledged that the order could cause the government to award contracts to higher

bidders that complied with the controls over lower bidders that did not. See id. at

792–93. It nevertheless concluded that the order’s controls would promote economy

and efficiency by reducing the overall rate of inflation in government contracting,

which would “likely have the direct and immediate effect of holding down the

Government’s procurement costs.” Id. Similarly, here, the DOL’s rule will cause the

government to award federal permits to contractors that comply with the increased

minimum wage requirements over those that do not. Yet we defer to DOL’s

determination that such wage controls could promote economy and efficiency by

reducing costs in the long-term.

Accordingly, Appellants are unlikely to succeed on the merits in showing that

the DOL’s rule lacks a sufficiently close nexus to the statutory objectives of economy

and efficiency.

Finally, Appellants request that we read FPASA narrowly and “construe any

uncertainty in” their favor. Aplts.’ Opening Br. at 27. Specifically, they claim that

23 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 24

FPASA (1) should not be read to displace other statutory schemes governing

contractor wages, (2) should be read narrowly given its major economic impact, and

(3) should be construed to avoid a non-delegation problem. See id. at 27–38. We

address each argument in turn.

First, Appellants contend that a narrowing construction is appropriate given

that other federal statutes explicitly impose a minimum wage for federal

contractors—viz., the Davis-Bacon Act (DBA), the Walsh-Healy Public Contracts

Act (PCA), and the Service Contract Act (SCA). See id. at 29. More specifically,

Appellants assert that Congress spoke directly in the DBA, PCA, and SCA “to the

issue of whether federal contractors should be required to pay a minimum wage.” Id.

As such, they claim that “[i]t is ‘implausible’ that Congress meant to grant the

President [through FPASA] the ‘implicit power to create an alternative to the explicit

and detailed [] scheme’ that Congress set out in these statutes.” Id. at 30 (quoting

New Mexico v. Dep’t of Interior, 854 F.3d 1207, 1226 (10th Cir. 2017)). We are

unpersuaded.

Appellants primarily rely on New Mexico v. Department of Interior to support

their argument. In New Mexico, we addressed whether a regulation promulgated by

the U.S. Department of Interior (DOI) under the Indian Gaming Regulatory Act

(IGRA) complied with the “explicit and detailed remedial scheme” outlined in the

very same statute. 854 F.3d at 1226. The statutory scheme called for tribes and

states to negotiate compacts permitting gaming on reservations, and it authorized

24 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 25

tribes to sue states in federal court when states failed to negotiate in good faith. See

id. at 1211. If the court found that a state failed to negotiate in good faith, the statute

then authorized the court to issue injunctive relief, after which the statute authorized

the DOI to issue gaming procedures. See id. at 1212. But after Congress enacted the

IGRA, the Supreme Court “made clear that a state can invoke sovereign immunity in

response to such a suit.” Id. at 1211 (citing Seminole Tribe of Fla. v. Florida, 517

U.S. 44, 47 (1996)). In response to the Court’s decision, DOI—pursuant to its

alleged authority under the IGRA—issued a rule that prescribed the applicable

gaming procedures for when a district court dismissed a tribe’s suit based on

sovereign immunity. See id.

New Mexico held that the DOI rule was unlawful because it deviated “in

fundamental ways” from the “remedial scheme” Congress enacted in the IGRA. Id.

at 1225–28. Specifically, we found “implausible the Secretary’s assertion of implicit

power to create an alternative to the explicit and detailed remedial scheme that IGRA

prescribes.” Id. at 1226.

However, the present matter is distinguishable. In New Mexico, the agency

claimed authority under a particular statute—the IGRA—to issue rules in an area

where the very same statute created its own “explicit and detailed remedial scheme.”

Id. Accordingly, we found it “implausible” that the IGRA would grant the agency

“implicit power to create an alternative” procedure where the statute set out its own

in such detail. Id. However, the DOL has claimed no such authority here.

Specifically, it has not issued minimum wage rules under the authority of statutes

25 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 26

providing for their own statutory minimum wage schemes for federal contractors—

i.e., the DBA, PCA, and SCA. Rather, it has issued minimum wage rules under a

separate statute—FPASA—where the rules do not constitute an alternative regulatory

scheme. Accordingly, New Mexico has virtually nothing to say about the propriety of

the DOL’s action here.

Furthermore, Appellants concede that the minimum wage rule issued pursuant

to FPASA does not “conflict[]” with the DBA, PCA, and SCA, as those statutes set

only minimum wage requirements—i.e., a floor below which wages are not allowed

to fall. Aplts.’ Reply Br. at 15. Stated another way, the DBA, PCA, and SCA do not

preclude the higher-wage requirement issued here. Thus, this is not a case where we

must apply “the well-established principle that, when two statutes conflict, the

‘specific governs the general.’” R-S-C v. Sessions, 869 F.3d 1176, 1184 (10th Cir.

2017) (emphasis added) (quoting Nitro-Lift Techs., LLC v. Howard, 568 U.S. 17, 21

(2012)).

Similarly, Appellants fail to support any claim that the later-enacted SCA

(passed in 1965) displaces any authority to regulate contractor wages under FPASA

(passed in 1949). “The later statute displaces the first only when the statute

‘expressly contradict[s] the original act’ or if such a construction ‘is absolutely

necessary . . . in order that [the] words [of the later statute] shall have any meaning at

all.’” Chamber of Com. of U.S. v. Reich, 74 F.3d 1322, 1333 (D.C. Cir. 1996)

(alterations and omission in original) (quoting Traynor v. Turnage, 485 U.S. 535, 548

(1988)). Appellants make no such showing here.

26 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 27

Rather, Appellants contend that the issue is whether we should interpret

FPASA to “broadly grant power over [federal contractor] wages” when it does not

reference wages, and other statutes establish specific rules in this area. Aplts.’ Reply

Br. at 15. But Appellants do not cite to any provision in these statutes foreclosing the

authority to set higher minimum wage requirements. And Congress frequently sets

minimum requirements while expecting that other entities will adopt more stringent

regulations. See, e.g., Union Elec. Co. v. Env’t Prot. Agency, 427 U.S. 246, 261–63

(1976) (holding that a provision of the Clean Air Act (CAA) authorized states to

issue emissions regulations that are “more stringent” than national standards).

Although states are often the actors that impose higher standards, the federal

government does so too in certain circumstances, as envisioned in the Fair Labor

Standards Act. See 29 U.S.C. § 218(a) (“No provision of this chapter . . . shall

excuse noncompliance with any Federal or State law or municipal ordinance

establishing a minimum wage higher than the minimum wage established under this

chapter.” (emphasis added)). Thus, contrary to Appellants’ assertions, there is no

indication here that Congress intended for any of the minimum wage statutes to

preclude the payment of higher wages to employees working on or in connection with

covered contracts. Accordingly, we are unwilling to apply a narrowing construction

on this basis.

Next, Appellants contend that “the Procurement Act must be read narrowly

given its major economic impact.” Aplts.’ Opening Br. at 32 (bold-face font

27 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 28

omitted). Specifically, Appellants claim that the DOL’s rule “‘is economically

significant,’ since it would result in direct costs to employers of ‘$1.7 billion per year

over 10 years.’” Id. at 32–33 (quoting 86 Fed. Reg. at 67,194) (emphasis omitted).

Given its economic significance, Appellants contend that we “must meet DOL’s rule

‘with a measure of skepticism,’ and look for a clear statement from Congress.” Id. at

33 (quoting Util. Air Regul. Grp. v. Env’t Prot. Agency, 573 U.S. 302, 304 (2014)).

Appellants assert this is especially true given the DOL’s “reed-thin” statutory

argument. Id. We are unpersuaded.

Although courts generally “enforce plain and unambiguous statutory language

according to its terms,” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251

(2010), “[w]here the statute at issue is one that confers authority upon an

administrative agency,” there are certain “‘extraordinary cases’ that . . . provide a

‘reason to hesitate before concluding that Congress’ meant to confer such authority.”

West Virginia v. Env’t Prot. Agency, 597 U.S. 697, 721 (2022) (quoting Food &

Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)).

In such cases, “the agency must . . . point to ‘clear congressional authorization’” for

the proposed regulation. Id. at 723 (quoting Util. Air, 573 U.S. at 324).

In this vein, the so-called Major Questions Doctrine applies where “an agency

claims to discover in a long-extant statute an unheralded power to regulate ‘a

significant portion of the American economy’” or make “decisions of vast ‘economic

and political significance.’” Util. Air, 573 U.S. at 324 (quoting Brown & Williamson,

529 U.S. at 159–60). In arguing that the Major Questions Doctrine applies,

28 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 29

Appellants focus on the economic effects of the broader minimum wage rule, which

covers both non-procurement and procurement contractors. For the purposes of

deciding this appeal, we will assume—without deciding—that Appellants framing of

the specific “question” implicating the Major Questions Doctrine is correct.5

Nonetheless, their argument is unavailing for four reasons.

First, this is not a case in which the executive branch seeks to locate expansive

authority in “modest words,” “vague terms or ancillary provisions.” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 468 (2001); see also West Virginia, 597 U.S. at 724

(applying Major Questions Doctrine where the EPA claimed authority to

“substantially restructure the American energy market” based on “an ‘ancillary

provision[]’ of the [CAA],” which “was designed to function as a gap filler” (first

5 We note that Appellants’ framing of the specific “question” implicating the Major Questions Doctrine may not be correct. In particular, the primary issue presented on appeal is whether FPASA grants authority to regulate non-procurement recreational service permittees, such as AVA and other CROA members. Yet, in arguing the Major Questions Doctrine applies, Appellants shift their focus to the economic effects of the broader minimum wage rule. This appears to be in tension with the Supreme Court’s jurisprudence—which focuses on the effects of the challenged action to determine whether it presents a purportedly “major” question. See Util. Air, 573 U.S. at 312–314; MCI Telecommunications Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231–32 (1994). If we were instead to frame the “major” question as DOL’s authority to regulate non-procurement permittees, that would clearly not pose a question of “vast ‘economic and political significance.’” Util. Air, 573 U.S. at 324 (quoting Brown & Williamson, 529 U.S. at 160). However, because the Appellees do not challenge the Appellants’ framing of the question, we will assume that Appellants’ framing is correct for purposes of resolving this appeal. See, e.g., Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“In our adversary system, in both civil and criminal cases, . . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”). 29 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 30

alteration in original) (quoting Whitman, 531 U.S. at 468)). Instead, as discussed

supra, FPASA authorizes the President to “prescribe policies and directives that the

President considers necessary to carry out this subtitle,” 40 U.S.C. § 121(a), which

includes “provid[ing] the Federal Government with an economical and efficient

system for . . . [p]rocuring and supplying property and nonpersonal services,” 40

U.S.C. § 101(1). In employing such expansive language, “Congress chose to utilize a

relatively broad delegation of authority in the Federal Property and Administrative

Services Act of 1949.” City of Albuquerque, 379 F.3d at 914. Accordingly, the

DOL’s interpretation of FPASA does not involve “hid[ing] elephants in mouseholes.”

Whitman, 531 U.S. at 468.

Second, Utility Air makes clear that the Supreme Court’s concern is with an

“enormous and transformative expansion in . . . regulatory authority without clear

congressional authorization.” 573 U.S. at 324. Here, however, EO 14,026 and the

DOL’s rule do not exercise the government’s traditional “regulatory authority.” Id.

Instead, they invoke the government’s proprietary authority. To be sure “[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 v. President of

the U.S., 46 F.4th 1283, 1314 n.3 (11th Cir. 2022) (Anderson, J., concurring in part

and dissenting in part); see also Bldg. & Constr. Trades Dep’t v. Allbaugh, 295 F.3d

28, 35 (D.C. Cir. 2002) (holding that an executive order “establish[ed] no condition

that can be characterized as ‘regulatory’” because it did not “address . . . projects

unrelated to those in which the Government has a proprietary interest”). But here,

30 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 31

the DOL’s rule relates to the government’s proprietary interest in the “economical

and efficient” procurement of services. 40 U.S.C. § 101(1).

“Like private individuals and businesses, the Government enjoys the

unrestricted power . . . to determine those with whom it will deal.” Perkins v. Luken

Steel Co., 310 U.S. 113, 127 (1940). Here, the challenged minimum-wage

requirement does not apply to employers generally, or even to employees of covered

employers who do not perform work on or in connection with federal contractors.

Instead, the rule simply reflects the President’s management decision that the federal

government will do business with companies only on terms he regards as promoting

economy and efficiency. More specifically, the President has determined that he will

issue permits—granting access to federal lands for the supply of guided tours—to

outfitters that comply with the minimum wage rule, which he deems necessary to

carry out the objectives of economy and efficiency. This exercise of proprietary

authority is entirely within the bounds of the President’s authority. See NASA v.

Nelson, 562 U.S. 134, 148 (2011) (noting that when the government acts “in its

capacity ‘as proprietor’ and manager of its ‘internal operation,’” it “has a much freer

hand” than when it “exercise[s] its sovereign power ‘to regulate.’” (quoting Cafeteria

& Rest. Workers v. McElroy, 367 U.S. 886, 896 (1961))).

Third, even assuming DOL is exercising significant regulatory authority, the

Supreme Court has typically applied the Major Questions Doctrine where an “agency

claim[ed] to discover” regulatory authority for the first time “in a long-extant

statute.” Util. Air, 573 U.S. at 324; see id. (“When an agency claims to discover in a

31 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 32

long-extant statute an unheralded power to regulate ‘a significant portion of the

American economy,’ we typically greet its announcement with a measure of

skepticism.” (citation omitted) (quoting Brown & Williamson, 529 U.S. at 159));

Biden v. Nebraska, 600 U.S. ----, 143 S. Ct. 2355, 2372 (2023) (“The Secretary has

never previously claimed powers of this magnitude under the HEROES Act.”).

By contrast, over the decades since it was enacted, presidents have issued

numerous executive orders under FPASA that regulate federal contractors to promote

economy and efficiency in procurement and supply. Most relevant here, presidents

during the past three administrations have issued executive orders under FPASA that

imposed minimum wage requirements for federal contractors. See EO 13,658 (Feb.

12, 2014), 79 Fed. Reg. 9851; EO 13,838 (May 25, 2018), 83 Fed. Reg. 25,341

(amending EO 13,658 to exempt recreational service workers without otherwise

revoking the minimum wage requirement and determining that the minimum wage

requirement still applied to “lodging and food services associated with seasonal

recreational services”); EO 14,026 (Apr. 27, 2021), 86 Fed. Reg. 22,835 (imposing

an increased minimum wage for federal contractors and rescinding the exemption for

recreational service workers).

Furthermore, beyond the specific context of a minimum wage, presidents have

issued—and courts have upheld—a wide range of orders under FPASA governing

federal contractors and their workers, often without a direct connection to cost

reduction. See, e.g., Chao, 325 F.3d at 362, 366–67 (upholding 2001 executive order

requiring federal contractors to notify employees of certain labor rights); Kahn, 618

32 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 33

F.2d at 796 (upholding 1978 executive order regulating contractor prices and wages);

Contractors Ass’n of E. Pa. v. Sec’y of Lab., 442 F.2d 159, 170–71 (3d Cir. 1971)

(addressing 1969 executive order imposing affirmative action and non-discrimination

requirements on certain federal contractors and concluding that FPASA authorized

the order, partly because it helped prevent contractors from overcharging the

government). These examples illustrate that unlike West Virginia, Utility Air, and

Brown & Williamson, here the President did not “‘claim[] to discover in a long-extant

statute an unheralded power’ representing a ‘transformative expansion in [its]

regulatory authority.’” West Virginia, 597 U.S. at 724 (second alteration in original)

(quoting Util. Air, 573 U.S. at 324). Instead, consistent with longstanding historical

practice, the President issued yet another executive order under FPASA that

regulated federal contractors to promote economy and efficiency in procurement and

supply.6

6 Kentucky is distinguishable for similar reasons. There, the Sixth Circuit applied the Major Questions Doctrine in holding that FPASA did not authorize an executive order requiring employees of federal contractors to become vaccinated against COVID-19. See Kentucky, 23 F.4th at 589, 604, 606–08. Without a clear statement from Congress, Kentucky refused to interpret FPASA as authorizing the President “to effect major changes in the administration of public health,” a “purpose never-before recognized.” Id. at 607. But Kentucky explicitly distinguished orders pertaining to “wage and price controls,” non-discrimination, and labor rights, which “ha[ve] a ‘close nexus’ to the ordinary hiring, firing, and management of labor.” Id. at 607–08 (quoting Kahn, 618 F.2d at 792). The court reasoned that “none of those [rationales] comes even close to [mandating] a medical procedure for one-fifth (or more) of our workforce,” which it deemed an unprecedented assertion of authority under FPASA. Id.

Here, however, three presidential administrations have imposed a minimum wage rule under FPASA, and the rule falls far closer than a vaccine mandate to the 33 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 34

Moreover, this is not a case in which the agency issuing the minimum wage

rule lacks “expertise” in the relevant area of policymaking. See, e.g., King v.

Burwell, 576 U.S. 473, 486 (2015) (“It is especially unlikely that Congress would

have delegated [a decision regarding the availability of tax credits for use on health

insurance exchanges] to the IRS, which has no expertise in crafting health insurance

policy of this sort.”); Gonzales v. Oregon, 546 U.S. 243, 265–67 (2006). Clearly,

DOL does not lack “expertise” in setting minimum wages for federal contractors.

Indeed, Congress delegated this very responsibility to DOL in a related context. See

Int’l Bhd. of Elec. Workers, Loc. 113 v. T&H Servs., 8 F.4th 950, 953–54 (10th Cir.

2021) (discussing DOL’s role in determining a prevailing wage under the Davis-

Bacon Act).

Thus, given that this case differs markedly from those in which the Supreme

Court applied the Major Questions Doctrine, we decline to apply that doctrine here.

Finally, Appellants argue that we must read FPASA narrowly to avoid the

constitutional question of whether the statute impermissibly delegates legislative

authority. See Aplts.’ Opening Br. at 34–38. More specifically, Appellants claim

that “an interpretation of the Procurement Act that allowed the President to

unilaterally displace existing minimum wage rules for employers who merely have a

orders governing “management of labor,” such as “wage and price controls,” id. at 607, that administrations have imposed since Congress enacted FPASA. As such, we think the rationale underlying Kentucky is inapplicable here. 34 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 35

special use permit” would raise a nondelegation concern. Id. at 35 (emphasis

omitted). We conclude that no such concerns arise here.

“[W]here an otherwise acceptable construction of a statute would raise serious

constitutional problems,” we must “construe the statute to avoid such problems

unless such construction is plainly contrary to the intent of Congress.” Edward J.

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568,

575 (1988). Under the “nondelegation doctrine,” which is “rooted in the principle of

separation of powers that underlies our tripartite system of Government[,] . . .

Congress generally cannot delegate its legislative power to another Branch.”

Mistretta v. United States, 488 U.S. 361, 371–72 (1989). We therefore must interpret

FPASA in a manner that does not “raise serious” questions under the nondelegation

doctrine. DeBartolo, 485 U.S. at 575.

“[A] delegation is constitutional so long as Congress has set out an

‘intelligible principle’ to guide the delegee’s exercise of authority.” Gundy v. United

States, 588 U.S. ----, 139 S. Ct. 2116, 2129 (2019) (plurality opinion) (quoting J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). The Supreme

Court “[has] ‘almost never felt qualified to second-guess Congress regarding the

permissible degree of policy judgment that can be left to those executing or applying

the law.’” Whitman, 531 U.S. at 474–75 (quoting Mistretta, 488 U.S. at 416 (Scalia,

J., dissenting)). It has struck down statutory provisions under the nondelegation

doctrine “[o]nly twice in this country’s history[,] . . . in each case because ‘Congress

had failed to articulate any policy or standard’ to confine discretion.” Gundy, 139 S.

35 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 36

Ct. at 2129 (quoting Mistretta, 488 U.S. at 373 n.7); see also United States v. Rickett,

535 F. App’x 668, 674–75 (10th Cir. 2013) (explaining that “[b]etween 1789 and

1935—a period spanning 146 years of constitutional history—the Supreme Court

‘never struck down a challenged statute on delegation grounds,’” and that it has done

so only twice since, both times in 1935 (quoting Mistretta, 488 U.S. at 373)).7 And

the Court has approved at least arguably broad delegations requiring agencies to

regulate in the “public interest,” Nat’l Broad. Co. v. United States, 319 U.S. 190, 216

(1943), to set prices that in an agency administrator’s “judgment will be generally

fair and equitable,” Yakus v. United States, 321 U.S. 414, 421–22, 427 (1944), and to

set air quality standards that are “requisite to protect the public health,’” Whitman,

531 U.S. at 472 (quoting 42 U.S.C. § 7409(b)(1)).

Appellants’ nondelegation challenge is untenable under these precedents. For

example, in Whitman, a provision of the CAA provided an intelligible principle by

merely delegating authority to set air quality standards that, “in the judgment of the

[EPA] Administrator” and in conformity with certain statutory criteria, “are requisite

to protect the public health.” 531 U.S. at 472 (emphasis added) (quoting 42 U.S.C.

§ 7409(b)(1)). The term “requisite” channeled agency discretion because the term

authorized only actions taken to protect public health that are “sufficient, but not

more than necessary.” Id. at 473. Similarly, FPASA only authorizes executive

7 Recognizing that this unpublished decision is not binding on us, we rely on it for its persuasive value. See, e.g., United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015). 36 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 37

orders that “the President considers necessary” to promote an “economical” and

“efficient” system for procuring and supplying goods and services. See City of

Albuquerque, 379 F.3d at 914 n.6. These italicized terms likewise channel executive

discretion because they encompass only actions that the President considers

necessary to increase productivity or quality of service in procurement and supply

with little or no waste.

This analysis is also consistent with our precedent. In City of Albuquerque, a

city brought a challenge under the Administrative Procedure Act arguing that the

Department of Interior violated an executive order issued pursuant to FPASA by

selecting office space in a manner that conflicted with procedures dictated under the

order. See 379 F.3d at 904–05, 913. To establish prudential standing, the city had to

demonstrate that it was “within the ‘zone of interests’ of a statute supporting standing

under the [APA].” Id. at 913.8 Because neither the executive order nor FPASA

provided an explicit right of action, the city needed to establish that the executive

order had a “statutory foundation,” in which case “it is given the effect of a

congressional statute.” Id. (quoting City of Carmel-by-the-Sea v. United States

Dep’t of Transp., 123 F.3d 1142, 1166 (9th Cir. 1997)).

8 Since we decided City of Albuquerque, the Supreme Court has clarified that “the zone of interests test is not prudential in origin and is indeed not a standing inquiry at all.” Hill v. Warsewa, 947 F.3d 1305, 1309 (10th Cir. 2020). However, this clarification has no material relevance to our analysis here of Appellants’ nondelegation challenge.

37 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 38

We concluded that FPASA “provide[d] a sufficient statutory foundation for

[the executive order].” Id. at 914. As we explained, “Congress may delegate

responsibility to the executive branch so long as Congress provides an ‘intelligible

principle’ to guide the exercise of the power.” Id. (quoting J.W. Hampton, 276 U.S.

at 409). We recognized that Congress used “a relatively broad delegation of

authority in [FPASA],” but we explained that Congress “instruct[ed] the President’s

exercise of authority should establish ‘an economical and efficient system for . . . the

procurement and supply’ of property.” Id. (quoting 40 U.S.C. § 471 (2000), currently

codified at 40 U.S.C. § 101)). And we concluded that directions in the executive

order “concerning the consideration of locations within [a] central business area are

sufficiently related to [FPASA] to be a valid exercise of the Act’s delegated

authority.” Id. In so holding, we recognized that FPASA provides an “intelligible

principle” by only authorizing actions that promote economy and efficiency in

procurement and supply. See id. at 914–15.9

9 Appellants attempt to distinguish City of Albuquerque, claiming that we “upheld [FPASA] against a delegation challenge because the economy and efficiency limits meaningfully cabined the President’s authority.” Aplts.’ Reply Br. at 21. But City of Albuquerque found no delegation concern with an executive order governing office-site selection that had no obvious connection to cost reduction. See 379 F.3d at 905, 914–15 (addressing order requiring agencies to prioritize central business districts in selecting office space, without any mention of reducing costs). Appellants do not explain why FPASA “meaningfully cabined the President’s authority” in connection with that order but fails to do so in connection with the minimum wage rule. Aplts.’ Reply Br. at 21.

38 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 39

Thus, given the clear guidance of our precedent, we must conclude that the

rule at issue here does not present any nondelegation concerns.

***

Accordingly, for the foregoing reasons, we hold that Appellants have not

shown a likelihood of success on the merits that the DOL’s rule was issued without

statutory authority. More specifically, the district court did not err in concluding that

FPASA likely authorizes the minimum wage rule because the DOL’s rule permissibly

regulates the supply of nonpersonal services and advances the statutory objectives of

economy and efficiency.

V

Next, Appellants challenge the DOL’s minimum wage rule as arbitrary and

capricious due to three purported defects in its rescission of the exemption for

recreational services: first, because it failed to “consider[] alternatives” to rescinding

the exemption; second, because it rescinded the exemption “without acknowledging

the significant reliance interests at stake”; and third, because it failed to explain why

it “disregarded its own prior conclusions” pertaining to the exemption. Aplts.’

Opening Br. at 40. We reject each of these contentions in turn.

We must “set aside agency action” that is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A rule is

“arbitrary and capricious if the agency . . . relied on factors . . . Congress has not

intended it to consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence before the

39 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 40

agency, or is so implausible that it could not be ascribed to a difference in view or the

product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983). We may rely only on explanations “articulated by

the agency itself.” Id. at 50.

“Agencies are free to change their existing policies as long as they provide a

reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 579 U.S.

211, 221 (2016). But “when an agency rescinds a prior policy[,] its reasoned analysis

must consider the ‘alternative[s]’ that are ‘within the ambit of the existing [policy].’”

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. ----, 140 S. Ct.

1891, 1913 (2020) (second and third alteration in original) (quoting State Farm, 463

U.S. at 51). And the agency “must ‘be cognizant that longstanding policies may have

engendered serious reliance interests that must be taken into account.’” Id. (quoting

Encino, 579 U.S. at 221–22).

As a starting point, we note that the most fundamental difficulty with

Appellants’ argument is that the rescission of the 2018 exemption could not have

been an arbitrary and capricious exercise of agency discretion because the agency

had no discretion to act otherwise. Specifically, the agency was compelled by the

2021 executive order to rescind the 2018 executive order, which created the

exemption. See 86 Fed. Reg. at 22,836–22,837. Indeed, as DOL explained, to

maintain the exemption would have been “in clear derogation of both the letter and

spirit” of the 2021 order. 86 Fed. Reg. at 67,154. And Appellants do not dispute that

40 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 41

the 2021 order required DOL to eliminate the exemption for recreational service and

equipment providers.10

As such, Appellants cannot be correct in stating that it was arbitrary and

capricious for DOL not to consider alternatives to the rule it adopted or to

acknowledge the significant reliance interests at stake. As noted above, the 2021

executive order specifically rescinded the 2018 exemption and thus left DOL no

discretion to consider maintaining it. Thus, it would have been futile for DOL to

have considered comments advocating alternatives that it lacked discretion to adopt.

In other words, to consider and adopt any such alternatives would require DOL to

defy an executive order—which would clearly constitute an arbitrary and capricious

agency action. See, e.g., Delgadillo v. Astrue, 601 F. Supp. 2d 1241, 1248 (D. Colo.

2007) (“[A]n executive order dictates an agency’s policy unless or until Congress

enacts a statutory policy.”); 5 U.S.C. § 706(2)(A) (requiring courts to set aside

agency actions that are “not in accordance with law”).

Furthermore, Appellants mistakenly rely on Regents for their position that the

APA required the DOL to consider exempting recreational service permittees, and

any reliance interests the previous exemption engendered among such permittees—

notwithstanding an executive order that explicitly rescinded the exemption. See

10 Appellants have not challenged the 2021 executive order, likely because they realize “the President is not an agency within the meaning of the” APA. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). As such, we cannot review— under APA standards—whether the 2021 executive order itself adequately justified the policy change that it effected. 41 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 42

Aplts. Opening Br. at 42, 46–47. In Regents, the Supreme Court reviewed the

rescission of the Deferred Action for Childhood Arrivals (DACA) program by the

Acting Secretary of Homeland Security. 140 S. Ct. at 1901. The Court held that the

Acting Secretary’s decision was arbitrary and capricious because she “did not appear

to appreciate the full scope of her discretion.” Id. at 1911. In particular, the Court

concluded, the Acting Secretary failed to “consider[]” alternative means of winding

down the DACA program. Id. at 1915.

Here, however, the present matter differs from Regents in one critical respect.

Specifically, unlike the Secretary in Regents, the DOL did not possess the relevant

discretion; instead, Congress committed to the President himself, not to an agency,

the determination of what “policies and directives” to “prescribe” for federal

contracting. 40 U.S.C. § 121(a). Thus, Regents does not support Appellants’

position. See 140 S. Ct. at 1910; cf. id. (emphasizing “an important constraint on [the

Acting Secretary of DHS’s] decisionmaking authority—she was bound by the

Attorney General’s legal determination”).

Finally, Appellants contend that the DOL acted arbitrarily and capriciously in

failing to explain why it “disregarded its own prior conclusions” as to the exemption

for recreational services. Aplts.’ Opening Br. at 40. Specifically, they claim the

DOL failed to engage “with President Trump’s findings that applying a minimum

wage rule to outfitters and guides . . . would threaten ‘to raise significantly the cost of

guided hikes and tours on Federal lands’ . . . and ‘would [negatively affect] . . . hours

worked by recreational service workers.’” Id. (quoting 83 Fed. Reg. at 25,341).

42 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 43

They also claim the DOL did not “acknowledge its own prior findings” that

exempting permittees could lower their cost of business, “which ‘could incentivize

small outfitters to enter the market,’ ‘incentivize existing outfitters to hire more

guides’ . . . and provide ‘more affordable guided tours . . . [on] Federal lands.’” Id.

at 40–41 (quoting 83 Fed. Reg. at 48,540).

Again, we question whether the DOL was required to provide such an

explanation—given that it had no discretion to act otherwise. But, in any event, the

rule explicitly addressed “comments regarding the financial impact of [EO 14,026]”

on “seasonal recreational businesses.” 86 Fed. Reg. at 67,152. These commenters

represented that the minimum wage “would result in their business[es] needing to

reduce employee work hours, reduce services, or increase prices,” thereby restricting

access to services on federal lands. Id. In response to these comments, the DOL

“recognize[d] and acknowledge[d] that there may be particular challenges and

constraints experienced by non-procurement contractors,” including businesses

offering services on federal lands pursuant to permits, “that do not exist under more

traditional procurement contracts.” Id. One particular challenge the DOL recognized

is that “[n]on-procurement . . . contractors cannot as directly pass [increased] costs”

resulting from a higher minimum wage “along to the Federal Government in the form

of an increased bid amount or similar charge for the next contract.” Id. at 67,206.

Notwithstanding these challenges, the DOL “anticipate[d] that the economy

and efficiency benefits of [EO] 14[,]026 will offset potential costs.” Id. at 67,152.

The DOL emphasized, in particular, “that increasing the minimum wage . . . can

43 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 44

reduce absenteeism and turnover in the workplace, improve employee morale and

productivity, reduce supervisory and training costs, and increase the quality of

services provided to the Federal Government and the general public.” Id. at 67,153.

It also noted that “increased efficiency and quality of services” have the potential to

“attract more customers and result in increased sales.” Id. The DOL recognized that,

“[i]n limited cases,” an inability to pass labor-cost increases through to the Federal

government “may result in reduced profits in certain instances,” but only “assuming

that none of the beneficial effects . . . discussed [supra] apply.” Id. at 67,206.

We conclude that the DOL’s detailed explanation clearly satisfies (assuming that it

must do so) the requirement that, when an agency changes its policy, it must

“‘display awareness that it is changing position’ and ‘show that there are good

reasons for the new policy.’” Encino, 579 U.S. at 221 (quoting Fed. Commc’ns

Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). As such, we

conclude that Appellants have not shown a substantial likelihood of success on the

merits that the DOL’s rule is arbitrary and capricious.

VI

For the foregoing reasons, we AFFIRM the district court’s order denying

Appellants’ motion for a preliminary injunction.11

11 Without objecting to Safari Club’s filing of its amicus brief, Appellees move to strike declarations filed with the brief because the declarations include evidence that was not submitted to the district court. See Aplees.’ Resp. to Safari Club Int’l [hereinafter “Aplees.’ Mtn. to Strike”] at 1 (citing Utah v. U.S. Dep’t of Interior, 535 F.3d 1184, 1195 n.7 (10th Cir. 2008)). However, the declarations Appellees move to strike simply support points made in Safari Club’s brief, and 44 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 45

Appellees do not oppose the brief itself. Accordingly, we are hard pressed to see how Appellees are harmed by the filing of the declarations. Moreover, we accord no material significance to the declarations that goes beyond any that we attach to the averments of Safari Club’s brief. Therefore, at least under these unique circumstances, we do not see any legal impediment to our consideration of the “extra-record evidence” attached to Safari Club’s brief, insofar as it contains “matters relevant to the disposition of this case.” N.M. Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare Servs., 994 F.3d 1166, 1175–76 (10th Cir. 2021). Accordingly, we deny Appellees’ motion to strike. Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 46

No. 22-1023, Bradford v. U.S. Dep’t of Labor EID, J., dissenting.

Only Congress can wield legislative power. U.S. Const. art. I, § 1. Yet the law

here, by lacking an intelligible principle, delegates just that to the President. The Federal

Property and Administrative Services Act (“FPASA”) grants the President nearly

unfettered power to create any policy he considers necessary to carry out nonpersonal

services under the guise of economy and efficiency. In granting this power, Congress did

not (1) require the President to conduct any preliminary factfinding or to respond to a

specified situation. Nor did Congress (2) provide the President a standard that

sufficiently guides his broad discretion. Accordingly, I would hold that the FPASA runs

afoul of the nondelegation doctrine. Because the majority holds otherwise, I respectfully

dissent.1

I.

Under the nondelegation doctrine, Congress must cabin its delegation of

legislative authority to the President with an “intelligible principle.” Gundy v. United

States, 139 S. Ct. 2116, 2129 (2019) (plurality) (citation omitted). The Supreme Court

has identified an intelligible principle as falling into either of the “two buckets” identified

1 Because I would hold the FPASA unconstitutional under the nondelegation doctrine, I also respectfully decline to join the majority on whether the Department of Labor’s conduct (1) exceeded the authority granted under the FPASA or (2) was arbitrary and capricious under the FPASA. See Maj. Op. at Parts IV–V. Given that I would hold that the FPASA is invalid in itself, I would go no further into how the Department of Labor used the invalid delegation of power. That said, I note that it would be hard to imagine any scenario where an agency rule exceeds the FPASA’s vast grant of power after the President uses “econom[y]” and “efficien[cy]” as the justifications of executive action. 40 U.S.C. § 101(1). 1 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 47

in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495 (1935): “(1) whether the Congress has required any

finding by the President in the exercise of the authority, and (2) whether the Congress has

set up a standard for the President’s action.” Allstates Refractory Contractors, LLC v. Su,

79 F.4th 755, 773 (6th Cir. 2023) (Nalbandian, J., dissenting) (internal quotation marks

and citation omitted), petition for cert. filed, (U.S. Jan. 30, 2024) (No. 23-819); see id. at

769–76 (explaining the original meaning of Article I and over two centuries of Supreme

Court precedent on the nondelegation doctrine).

Under the first “bucket,” a law must contain a situational or fact-finding

requirement. Panama Refin., 293 U.S. at 415 (considering “whether the Congress has

required any finding by the President in the exercise of the authority to enact the

prohibition”). In many cases, the Supreme Court has upheld laws if executive action can

only come about as a response to certain situations. See, e.g., Opp Cotton Mills v. Adm’r

of Wage & Hour Div. of Dep’t of Lab., 312 U.S. 126, 145 (1941) (concerning a law

conditioning the executive’s ability to fix minimum wages on “basic facts to be

ascertained administratively” and on “factors to be considered in arriving at these

determinations”); Radio Corp. of Am. v. United States, 341 U.S. 412, 416 & n.5 (1951)

(concerning a law requiring “a justifiable fact situation” before a commission could

“promulgate standards for transmission of color television”).

Under the second, a law must contain “a standard” limiting executive discretion.

Panama Refin., 293 U.S. at 415 (considering “whether the Congress has set up a standard

for the President’s action”). Some laws delegate to the executive the ability to “fill up the

2 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 48

details” in “general provisions.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).

Even so, the Supreme Court has required that Congress provide a “sufficiently definite

and precise” standard that can “enable Congress, the courts and the public to ascertain

whether the [Executive official] . . . has conformed to those standards.” Yakus v. United

States, 321 U.S. 414, 426 (1944); see Opp Cotton Mills, 312 U.S. at 144. Only then

could a court be confident of what “general policy” a delegee “must pursue” and the

“boundaries of [his] authority.” Gundy, 139 S. Ct. at 2129 (plurality) (alteration in

original) (citation omitted). Because if not—if “an absence of standards” makes it

“impossible in a proper proceeding to ascertain whether the will of Congress has been

obeyed”—a nondelegation violation occurs. Yakus, 321 U.S. at 426.

Such permissible, testable standards have taken the form of mandatory “factors”

that the executive must conform to in acting. Mistretta v. United States, 488 U.S. 361,

374–76 (1989) (concerning a law requiring the Sentencing Commission to consider

“seven factors,” a “specific tool” of the “guidelines system,” “three goals,” “four

‘purposes,’” and “prohibited” factors (citation omitted)); see, e.g., Sunshine Anthracite

Coal Co. v. Adkins, 310 U.S. 381, 398 (1940) (concerning a law requiring the executive

to consider “criteria” before taking any action); Am. Power & Light Co. v. SEC, 329 U.S.

90, 105 (1946) (same); Nat’l Broad. Co. v. United States, 319 U.S. 190, 204, 225–26

(1943) (same); Yakus, 321 U.S. at 419, 427 (same); Touby v. United States, 500 U.S. 160,

166–67 (1991) (same); Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 473 (2001)

(same).

3 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 49

Lastly, the Supreme Court has noted that the more power a law delegates, the

more the law must limit that delegation. Indeed, “the degree of agency discretion that is

acceptable varies according to the scope of the power congressionally conferred.”

Whitman, 531 U.S. at 475; see Wayman, 23 U.S. (10 Wheat.) at 43 (“To determine the

character of the power given to the Courts by the Process Act, we must inquire into its

extent.”); cf. Gundy, 139 S. Ct. at 2125–30 (plurality) (stating that a narrow delegation

that granted “only temporary authority” “was a stopgap, and nothing more”); Yakus, 321

U.S. at 419, 426 (involving “temporary wartime” measures).

The bottom line is that courts must examine statutes for an intelligible principle.

That is because a law delegating power must have one to withstand Article I. As aptly

summarized from “over two centuries worth of caselaw,” looking for an intelligible

principle in turn “requires a court to analyze a statute for two things: (1) a fact-finding or

situation that provokes executive action or (2) standards that sufficiently guide executive

discretion—keeping in mind that the amount of detail governing executive discretion

must correspond to the breadth of delegated power.” Allstates Refractory Contractors,

LLC, 79 F.4th at 776 (Nalbandian, J., dissenting) (cleaned up).

II.

Neither this Court nor the Supreme Court have decided whether the FPASA

violates the nondelegation doctrine. The FPASA provides that the President “may

prescribe policies and directives that [he] considers necessary to carry out” the FPASA

that are “consistent with” the FPASA. 40 U.S.C. § 121(a). Along those lines, a policy

objective in the FPASA’s purpose statement seeks to: “provide the Federal Government

4 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 50

with an economical and efficient system for . . . [p]rocuring and supplying property and

nonpersonal services.” Id. § 101(1) (emphases added).

That is it. That is all the FPASA gives us—no floor of what specific situations

must arise, no ceiling on what the President may find economical or efficient to do.

Instead, the FPASA gives the President nearly unfettered power to regulate any

nonpersonal service via any contract-like instrument, not limited to a permit like in this

case. And with that permit or other instrument in hand, the President may do whatever he

finds necessary to regulate entire industries in the name of what he believes to be

economical and efficient. Such a broad delegation without limits cannot stand under

Article I. Yet that is exactly the type of delegation we deal with today.

I fully acknowledge that the Supreme Court’s body of caselaw for what makes an

intelligible principle is “not demanding.” Big Time Vapes, Inc. v. FDA, 963 F.3d 436,

442 (5th Cir. 2020) (Smith, J.) (quoting Gundy, 139 S. Ct. at 2129 (plurality)). But even

under those standards, I would hold that the FPASA violates the nondelegation doctrine

because it lacks an intelligible principle. That is because the FPASA provides no

(1) fact-finding or situational requirement that prompts executive action. Nor does it

provide a (2) standard that sufficiently guides the President’s discretion on what he finds

economically or efficiently necessary. Especially when considering the broad scope of

power that the FPASA delegates—the ability to regulate any industry of someone who

has a contract-like instrument with the federal government—Congress did not sufficiently

limit executive discretion.

5 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 51

A.

My analysis on the first category of what makes an intelligible principle will be

quick. That is because the FPASA does not require the President to conduct any fact-

finding or wait for any situation to occur before he “may prescribe policies and directives

that [he] considers necessary.” 40 U.S.C. § 121(a); see Schechter Poultry, 295 U.S. at

541–42; Panama Refin., 293 U.S. at 417–18, 430. The FPASA provides no requirement

to “obtain[] needed data,” no need to determine “the facts justifying” any changes. J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394, 405 (1928); see Opp Cotton Mills,

312 U.S. at 145 (finding an intelligible principle because, in addition to requiring the

executive to consider certain “factors,” the law required “basic facts to be ascertained

administratively”). Nor does the President need to wait till he can respond to “a

justifiable fact situation.” Radio Corp. of Am., 341 U.S. at 416.

In contrast, he “may prescribe policies or directives” he “considers necessary to

carry out” the “[p]rocuring and supplying” of “nonpersonal services” or other “related

functions.” 40 U.S.C. §§ 101(1), 121(a). When he “may” act lies solely within his own

discretion, id. § 121(a), for he “may accept, modify, or reject them as he pleases.”

Schechter Poultry, 295 U.S. at 539. No threat to an “economical and efficient system” of

any “function” related to “[p]rocuring and supplying . . . nonpersonal services” needs to

arise before the President can do what he believes necessary. 40 U.S.C. § 101(1). And

even if such a threat came about, the FPASA explains that the President “may,” not shall,

“prescribe policies and directives.” Id. § 121(a). Thus, nothing requires the President to

prescribe any policy or directive in response. Id.; see Antonin Scalia & Bryan A. Garner,

6 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 52

Reading Law: The Interpretation of Legal Texts 112 (2012) (“The traditional, commonly

repeated rule is that shall is mandatory and may is permissive[.]”). Thus, without

anything occurring beforehand, the FPASA provides an open invite for the President to

do whatever he “considers necessary” to regulate entire industries via a contract or a

contract-like instrument, like the permit in this case. 40 U.S.C. § 121(a).

The FPASA then does not have an intelligible principle under the first category, as

it does not contain a fact-finding or situation requirement.

B.

Nor does the FPASA contain a sufficient standard. Given the broad delegation of

power at issue here, the FPASA does not contain standards that sufficiently limit the

President’s discretion. Indeed, we need only compare the statute here with those in other

nondelegation cases to make that conclusion.

I start with what the FPASA does have: Only two provisions may possibly serve

as the basis for a standard. To begin, there is the provision delegating authority to the

President. Section 121(a) of the FPASA makes it clear that the “President may prescribe

policies and directives that the President considers necessary to carry out” the FPASA

that are also “consistent with” the FPASA. Id. And working in conjunction with that

provision, the FPASA also has a purpose statement containing a broad policy objective—

a goal to provide the Federal Government with an “economical” and “efficient” system

for activities, which include “[p]rocuring and supplying . . . nonpersonal services.” Id.

§ 101(1). Taken together, the President may do what he finds necessary to carry out the

7 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 53

FPASA as long as he thinks the federal government would have an economical or

efficient system.

That is not a standard. If Panama Refining and Schechter Poultry stand for

anything, it is that a “general outline of policy,” Panama Refin., 293 U.S. at 417, or

“statement of [] general aims,” Schechter Poultry, 295 U.S. at 541, cannot form an

intelligible principle without additional limits. “[S]uch a preface of generalities as to

permissible aims,” without more, is a “delegation of legislative power [] unknown to our

law,” “utterly inconsistent with the constitutional prerogatives and duties of Congress.”

Id. at 537. And here, the FPASA provides nothing more.

Appellees argue that the President is bound by the FPASA’s purpose statement,

which states that he can only “provide the Federal Government with an economical and

efficient system.” 40 U.S.C. § 101. Importantly, nowhere in the FPASA does it require

that the President only make regulations that are “economical and efficient” by some

objective standard. Id. Indeed, the FPASA ensures that the President need only take his

own subjective opinion into account. Id.

Again, the FPASA allows the President to take any measures “that the President

considers necessary to carry out” the FPASA. Id. § 121(a) (emphasis added). This

phrase places all discretion in the President’s hands, requiring nothing and no one else to

constrain what he “considers necessary.” Id. (emphasis added). Along those lines,

although the FPASA defines some terms, see id. § 102, the law does not define what

“economical” and “efficient” mean, id. § 101. It instead leaves the defining to the

President. See id. § 121(a).

8 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 54

What is worse, the FPASA also specifies that the “purpose” of the law “is to

provide the Federal Government” with a “system.” Id. § 101. Critically, the FPASA

does not serve anyone or anything else but the federal government. What seems

“economical” and “efficient” is not just left to the President’s subjective opinion but is

always in the federal government’s best interest because the FPASA does not require the

President to consider how river rafters, a state, or any private citizen may view what is

“economical” and “efficient.” Id. § 101. It only requires him to consider what he alone

considers necessary to benefit himself or other parts of the federal government. Id.

§ 121(a).

Accordingly, the FPASA provides no objective “criterion” that the President

“must conform to,” Sunshine Anthracite Coal Co., 310 U.S. at 397–98, no mandatory or

prohibited “factors” that he must consider when creating a policy or directive, Mistretta,

488 U.S. at 375–76; cf. Touby, 500 U.S. at 167 (holding that the “multiple specific

restrictions on the Attorney General’s discretion . . . satisfy the constitutional

requirements of the nondelegation doctrine”). The lack of some objective basis to turn to

means that practically speaking, nothing limits the “breadth of the [President’s]

discretion” or narrows the “wide field of legislative possibilities” to which the FPASA

can extend. Schechter Poultry, 295 U.S. at 538. Nothing requires him to use any basis

for determining what he “may . . . consider[]” “economical” or “efficient.” 40 U.S.C.

§§ 101, 121(a); see Panama Refining, 293 U.S. at 431–32 (“To hold that he is free to

select as he chooses from the many and various objects generally described in [a law’s

purpose statements], and then to act without making any finding with respect to any

9 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 55

object that he does select, and the circumstances properly related to that object, would be

in effect to make the conditions inoperative and to invest him with an uncontrolled

legislative power.”).

In a similar vein, simply looking to § 121(a), the policy or directive that the

President takes need not actually be “necessary” by some objective means—means not

otherwise specified in the FPASA. 40 U.S.C. § 121(a). The President need only

subjectively “consider[]” a policy or directive “necessary.” Id. Again, the language here

places all decision-making in the President’s hands.

The majority equates the FPASA’s use of “necessary,” id., to the term “requisite”

in Whitman v. American Trucking Associations, 531 U.S. 457 (2001), and concludes that

the use of a word like “necessary” creates an intelligible principle. I respectfully disagree

with this proposition because the law at issue in Whitman remains inapposite for at least

two reasons.

First, the phrasing of the FPASA makes the term “necessary” give rather than limit

power. That is because, again, the FPASA does not require that the President’s policies

actually be necessary, only that he subjectively “considers [them] necessary” to do

whatever he wants under the act. 40 U.S.C. § 121(a) (emphasis added).

In contrast, the relevant language in Whitman pointed to “a discrete set of

pollutants and [was] based on published air quality criteria that reflect the latest scientific

knowledge,” under which the “EPA must establish uniform national standards at a level

that is requisite to protect public health from the adverse effects of the pollutant in the

ambient air.” Whitman, 531 U.S. at 473 (citation omitted) (emphases added). Reading

10 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 56

the phrases fully informs how to interpret the term “requisite.” Unlike the term

“necessary” here, the term “requisite” is not based solely on some subjective opinion of

the President, but rather on what “is requisite” or “sufficient, but not more than

necessary” to protect public health from the adverse effects of pollutants. Id. (emphasis

added).

Keeping that in mind, the FPASA and Whitman’s uses of “necessary” and

“requisite” are diametrically opposed: the FPASA seeks to give power to the President to

do more by what he “considers” necessary (i.e., to “carry out the act”), whereas the law in

Whitman seeks to limit power by objective means (i.e., at some “level” designed “to

protect public health” “based on published air quality criteria that reflect the latest

scientific knowledge”). Otherwise said, because of the FPASA’s subjectivity, the

President does not have to do what “is requisite,” id., or what is “necessary” to cure or

respond to any situation; he need only do what he “considers necessary.” Whereas,

Whitman’s use of “requisite” is tethered to some objective means specified in the law

there.

Second, in any case, that the FPASA includes the word “necessary” is not enough

in itself to create a standard. Against this point, the majority states that the Supreme

Court has approved broad delegations requiring agencies to regulate in the “public

interest,” to set prices that in an agency administrator’s “judgment will be generally fair

and equitable,” and to set air quality standards that are “requisite to protect the public

health.” Maj. Op. at 36 (citations omitted).

11 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 57

Importantly, I seek to clarify that although the Court has “over and over upheld

even very broad delegations,” Gundy, 139 S. Ct. at 2129 (plurality), “no Supreme Court

case has found that the phrasing of a law”—such as the use of the word “necessary”—

“alone creates an intelligible principle,” Allstates Refractory Contractors, LLC, 79 F.4th

at 782–83 (Nalbandian, J., dissenting). To date, every law with a broad phrase that the

Supreme Court has looked at had other things that provided sufficient guidance on the

“boundaries of [delegated] authority.” Gundy, 139 S. Ct. at 2129 (plurality) (citation

omitted); see Nat’l Broad. Co., 319 U.S. at 216 (involving a law that required fact-

finding “to correct the abuses disclosed by its investigation of chain broadcasting”);

Yakus, 321 U.S. at 419, 427 (concerning a “temporary wartime measure” to fix prices

while requiring the executive to consider factors such as “prices prevailing in a stated

base period” and “fair and equitable” prices).

Even the law in Whitman had other limits on the delegation that made it fall in line

with the Supreme Court’s intelligible principle requirement. See 531 U.S. at 473

(requiring the EPA to “base[]” its policy “on published air quality criteria that reflect the

latest scientific knowledge”). Thus, the fact that the FPASA has the word “necessary”

does not itself end the conversation of whether we have a nondelegation problem.

In fact, we know that using a term like “necessary” is not sufficient just by looking

at Schechter Poultry, which involved a law using nearly identical language to the

FPASA. 295 U.S. at 523 & n.4 (“The President may . . . impose such conditions . . . as

the President in his discretion deems necessary to effectuate the policy herein declared.”

(emphasis added)). Thus, the use of the term “necessary,” with nothing else limiting the

12 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 58

President but general policy objectives, “in no way limit[s] the authority” vested in him.

Id. at 539. The FPASA should then meet the same fate as the incredibly similar law in

Schechter Poultry: we should deem it unconstitutional.

Moreover, the only way that the FPASA limits the President is by his own accord,

i.e., what he “considers necessary” as “consistent with” the FPASA. Certainly, the

President can act within whatever subjective bounds he “considers necessary.” 40 U.S.C.

§ 121(a). Indeed, he might follow an internalized golden rule from Whitman, that he can

only issue policies “sufficient, but not more than necessary” to carry out the FPASA. 531

U.S. at 473.

But that “very choice” to do so is a form of discretion that the Supreme Court has

already identified as a nondelegation no-no. Id. (“The idea that an agency can cure an

unconstitutionally standardless delegation of power by declining to exercise some of that

power seems to us internally contradictory. The very choice of which portion of the

power to exercise—that is to say, the prescription of the standard that Congress had

omitted—would itself be an exercise of the forbidden legislative authority.”).

In the end, the “absence of standards” over what exactly the President may

consider necessary to do makes it “impossible . . . to ascertain whether the will of

Congress has been obeyed.” Yakus, 321 U.S. at 426. No “boundaries of . . . authority”

exist. Gundy, 139 S. Ct. at 2129 (plurality) (quoting Am. Power & Light Co., 329 U.S. at

105). In no way can we test what the President himself considers necessary. That the

bounds of delegated authority are left unbound also explains why the majority cannot

hold that the agency action here was unlawful under the FPASA or arbitrary or

13 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 59

capricious. Truly, it is hard to see how any court would be able to strike down a law

under the FPASA. As such, I would hold that a “delegation of legislative authority

trenching on the principle of separation of powers has occurred.” Skinner v. Mid-Am.

Pipeline Co., 490 U.S. 212, 218 (1989) (citation omitted).

Even if the FPASA did have some sort of testable standard (it does not), it would

fail to sufficiently guide the President’s discretion. Again, with great delegated power

comes great specificity; that is, “the degree of agency discretion that is acceptable varies

according to the scope of the power congressionally conferred.” Whitman, 531 U.S. at

475; see Allstates Refractory Contractors, LLC, 79 F.4th at 787 (Nalbandian, J.,

dissenting) (collecting cases). And as here, when the grant of power can “affect the

entire national economy,” Congress “must provide substantial guidance.” Whitman, 531

U.S. at 475.

This case poses a good example of just how far the President’s authority under the

FPASA can extend. Here, the Department of Labor set up a minimum-wage scheme over

the river rafting industry, imposing additional requirements on river guides who are

required to have a federal permit to operate their businesses in the first place. Minimum

wages are one thing. Nothing stops the President from imposing whatever other

requirements he “considers necessary” to complete his vision of “an economical and

efficient system” for “nonpersonal services.” 40 U.S.C. §§ 101(1), 121(a).

River rafters aside, nothing stops the President from regulating other types of

federal permits in the guise of economy and efficiency. Indeed, permits for all sorts of

activities with the federal government are all at risk, whether that be a permit for cutting

14 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 60

down a single Christmas tree in a national forest, a one-night stay on a federal campsite,

or even a visit to the U.S. Capitol. Nothing stops the President; he may impose any

conditions at any time as long as he considers the conditions necessary.

The FPASA essentially allows the President to come in and change the terms of

any contract or contract-like instrument at any time based on his subjective belief of what

he “considers necessary” to carry out the FPASA if he thinks it “consistent with” the

law’s broad policy objectives. Id. § 121(a). The FPASA does not only govern one

industry, see, e.g., Nat’l Broad. Co., 319 U.S. at 214 (involving just the radio industry),

nor does it provide only “temporary authority,” Gundy, 139 S. Ct. at 2130 (plurality); see

Yakus, 321 U.S. at 419. Rather, the delegation broadly effects every nonpersonal service

with the federal government, which spans industries of all kinds—import and export,

aviation, broadcasting, you name it.

Not to mention, “nonpersonal services” are but one subset of many “functions”

over which the President can regulate. 40 U.S.C. § 101(1). The FPASA continues,

stating that the President “may” similarly “prescribe policies and directives” for “related

functions including contracting, inspection, storage, issue, setting specifications,

identification and classification, transportation and traffic management, establishment of

pools or systems for transportation of Government personnel and property by motor

vehicle within specific areas, management of public utility services, repairing and

converting, establishment of inventory levels, establishment of forms and procedures, and

representation before federal and state regulatory bodies.” Id. The President can no

15 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 61

doubt abuse this language to regulate entire industries while claiming that he believes it

“necessary” to carry out these broad “functions.” Id. at §§ 101(1), 121(a).

Given that the FPASA delegates the President the freedom to do as he pleases,

Congress needed to confine the President’s authority in more detail. It did not.

Consequently, not only does the FPASA not contain (1) a fact-finding or situational

requirement to arise before executive action, but the FPASA also does not have (2) a

sufficient standard that guides the President’s broad delegation. Therefore, the law

contains no intelligible principle and thus violates the nondelegation doctrine.

C.

Appellees make several arguments in response. To start, they argue that this

Circuit’s precedent “forecloses” any nondelegation concern. Aple. Br. at 36. And the

majority takes the bait. Improperly, Appellees and the majority both point to this Court’s

decision in City of Albuquerque v. U.S. Department of Interior, 379 F.3d 901 (10th Cir.

2004), arguing that the case determined that the FPASA had an intelligible principle. Not

so.

City of Albuquerque concerned whether the FPASA provided “sufficient statutory

foundation” for the issuance of an executive order, which could then serve as a “basis for

standing under the Administrative Procedure Act.” Id. at 914–15. Even though the

parties did not contest a nondelegation issue on appeal, this Court mentioned in passing

that “Congress may delegate responsibility to the executive branch so long as Congress

provides an ‘intelligible principle.’” Id. at 914 (citation omitted). Next, this Court went

16 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 62

on to say—while not coming down one way or another on the issue of a potential

nondelegation violation—two things.

First, we stated that Congress “chose to utilize a relatively broad delegation of

authority,” instructing the President to establish “‘an economical and efficient system for

. . . the procurement and supply’ of property.” Id. (quoting 40 U.S.C. § 101). And that

was all. To be clear, this Court did not say anything about the FPASA’s constitutionality

under Article I; this Court did not reach an issue not briefed on appeal. Second, given

that broad delegation, this Court went on to say that the executive order was a “valid

exercise of the [FPASA’s] delegated authority,” id.—a predictable outcome given how

far-reaching the FPASA is.

In all, this Court does not afford precedential weight to an opinion’s discussion

that alludes to a constitutional doctrine (that was not before the Court) in the mix of

determining another issue (that was). See, e.g., Thompson v. Weyerhaeuser Co., 582 F.3d

1125, 1129 (10th Cir. 2009) (considering as dicta “statements and comments in an

opinion concerning some rule of law or legal proposition not necessarily involved nor

essential to determination of the case in hand” (citation omitted)). As such, whether the

FPASA violates the nondelegation doctrine is a matter of first impression in this

Circuit—a matter that I would answer in the affirmative.

Next, Appellees argue that the Constitution does not “deny[] to the Congress the

necessary resources of flexibility and practicality . . . to perform its function.” Aple. Br.

at 38 (quoting Yakus, 321 U.S. at 425). Rather, they assert that “in our increasingly

complex society, replete with ever changing and more technical problems,” the Supreme

17 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 63

Court has understood that “Congress simply cannot do its job absent an ability to delegate

power under broad general directives.” Mistretta, 488 U.S. at 372.

Yes, that all holds true. But even so, Congress still has a responsibility to have an

intelligible principle in its laws by, for instance, creating “sufficiently definite and

precise” standards, Yakus, 321 U.S. at 426, that require or “prohibit[]” the President to

base executive action on the consideration of specified “factors,” Mistretta, 488 U.S. at

375–76 (citation omitted). And the FPASA did not provide a sufficient standard here

besides allowing the President to prescribe policies by any means he “considers

necessary.” 40 U.S.C. § 121(a); see supra Part II.B.

Lastly, Appellees argue that even if more specific statutory guidance might be

required in some circumstances, “it is not needed in a statute that addresses federal

procurement of goods and services.” Aple. Br. at 38. But the cases they cite do not lend

them support. To begin, the law here does not merely tell the executive to “expend[]”

federal funds for specified purposes. Cincinnati Soap Co. v. United States, 301 U.S. 308,

322 (1937). Next, the FPASA does not just reiterate that the President has the authority

to “make a valid contract” between the federal government and someone else. Jessup v.

United States, 106 U.S. 147, 152 (1882) (collecting cases).

Here, the FPASA abdicates Congress’s law-making function, leaving the President

to “prescribe” any “polic[y]” or “directive[]”—whether it be a minimum wage scheme or

any other regulation—that he (and he alone) “considers necessary.” 40 U.S.C. § 121(a).

Because of that, the FPASA diverges from “appropriations” laws that have “never

18 Appellate Case: 22-1023 Document: 010111040629 Date Filed: 04/30/2024 Page: 64

seriously been questioned.” Clinton v. City of New York, 524 U.S. 417, 467 (1998)

(Scalia, J., concurring in part and dissenting in part).

And nothing in this regulatory authority “governing private conduct” “implicate[s]

the president’s inherent Article II authority.” Gundy, 139 S. Ct. at 2140 (Gorsuch, J.,

dissenting); see Allstates Refractory Contractors, LLC, 79 F.4th at 787 n.15 (Nalbandian,

J., dissenting) (collecting cases on “powers that would seem to fall in the [e]xecutive’s

job description, such as matters dealing with war and foreign exchange”). Try as they

may, Appellees fail to show how “the broader body of law concerning the nondelegation

doctrine” supports their position. Contra Aple. Br. at 38.

III.

For these reasons, I respectfully dissent.