Eleventh Circuit Upholds Federal Project Labor Agreement Presumption and Clarifies Claim-by-Claim Irreparable-Harm Review for Preliminary Injunctions

I. Introduction

Associated Builders and Contractors Florida First Coast Chapter and Associated Builders and Contractors (together, the “associations”) brought a facial challenge to a federal procurement regime that presumptively requires federal construction contractors on projects valued at $35 million or more to enter into project labor agreements (“PLAs”) with unions. The challenged regime stems from Exec. Order No. 14,063 (Feb. 2022), implementing Federal Acquisition Regulation provisions finalized in Dec. 2023, and an Office of Management and Budget guidance memorandum addressing when agencies may grant exceptions.

The associations argued the PLA presumption is unlawful under multiple statutes—most prominently the Competition in Contracting Act and the Federal Property and Administrative Services Act (“Federal Property Act”)—and also violates the First Amendment and the Administrative Procedure Act (“APA”), among other laws. After the district court denied a preliminary injunction, the associations pursued an interlocutory appeal.

Two issues framed the appeal: (1) whether the district court correctly denied preliminary relief under Eleventh Circuit injunction standards, and (2) whether the associations were likely to succeed on the merits of their facial attacks on the executive order, regulations, and guidance. While the appeal was pending, the new OMB Director issued a memorandum stating the executive order “remains in effect” during the Trump administration, underscoring the continuing live controversy.

II. Summary of the Opinion

The Eleventh Circuit affirmed the denial of a preliminary injunction. It held:

  1. The district court erred in its irreparable-harm analysis by (a) failing to assess irreparable harm claim-by-claim in a multi-claim motion, and (b) treating the availability of equitable relief via bid protests in the Court of Federal Claims as negating irreparable harm (where only adequate legal remedies—i.e., monetary relief—ordinarily do so).
  2. Despite those errors, the associations still failed to show a substantial likelihood of success on the merits of their facial claims. The court held the PLA presumption is facially consistent with the Competition Act (due to express exceptions), authorized by the Federal Property Act, and not shown to violate the First Amendment. Their APA, Office of Federal Procurement Policy Act, and National Labor Relations Act arguments also failed.

III. Analysis

A. Precedents Cited

1. Preliminary injunction framework and “irreparable harm” methodology

  • Siegel v. LePore: supplies the foundational Eleventh Circuit rule that a preliminary injunction is an “extraordinary and drastic remedy” and that failure on any prerequisite is fatal. The panel applied this strict framework and affirmed because likelihood of success was lacking.
  • Odebrecht Constr., Inc. v. Sec'y, Fla. Dep't of Transp.: cited for the four-part test and, critically, for the proposition that irreparable harm turns on whether there is an adequate alternative legal remedy providing monetary relief. The panel used Odebrecht to reject the district court’s reliance on alternative equitable bid-protest mechanisms.
  • N. Am. Med. Corp. v. Axiom Worldwide, Inc.: central to the court’s correction of the district court’s approach. The panel emphasized that in a multi-claim motion, irreparable harm must be assessed “with respect to each claim,” because different claims can entail different kinds of harm (e.g., constitutional harms).
  • Otto v. City of Boca Raton: used to illustrate the point N. Am. Med. Corp. enforces—First Amendment violations are treated as per se irreparable injury when ongoing. This mattered because the district court never analyzed irreparable harm under the First Amendment claim.
  • Scott v. Roberts and Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville: addressed to the government’s argument that other “corrective relief” defeats irreparable harm; the panel distinguished monetary/legal adequacy from the mere availability of equitable relief elsewhere.
  • Swain v. Junior: cited to re-center the inquiry: whether plaintiffs are likely to suffer irreparable injury absent an injunction, not whether they can potentially obtain an injunction in another forum.
  • Mata Chorwadi, Inc. v. City of Boynton Beach and Mills v. Hamm: supply standards of appellate review—abuse of discretion overall, de novo for legal conclusions, clear error for fact findings.

2. Facial-challenge standards (statutory and First Amendment)

  • Moody v. NetChoice, LLC: anchors the modern admonition that facial challenges are “hard to win,” and supplies the panel’s First Amendment facial test: unconstitutional applications must “substantially outweigh” constitutional ones. This case functioned as the court’s main tool to reject a facial First Amendment theory unsupported by identified unconstitutional applications.
  • SisterSong Women of Color Reprod. Just. Collective v. Governor of Ga. and United States v. Salerno: provide the statutory facial standard (“no set of circumstances exists under which the [mandate] would be valid”). The panel applied this to hold that express exceptions within the PLA regime defeat a facial Competition Act claim.
  • Harris v. Mexican Specialty Foods, Inc.: invoked for the proposition that the “mere possibility” of a valid application defeats a facial challenge under the Salerno/SisterSong formulation.
  • In re Ga. Senate Bill 202: reinforced the requirement to perform the proper facial “balancing” analysis in First Amendment facial cases.

3. Competition in Contracting and procurement context

  • Bldg. & Constr. Trades Dep't, AFL-CIO v. Allbaugh: supplied the definitional baseline for PLAs (multi-employer, multi-union pre-hire agreements standardizing labor terms at a site). The panel used this for background rather than a rule of decision, but it framed the practical effect of the mandate.
  • The panel also relied heavily on the text of procurement statutes (e.g., “full and open competition” provisions), concluding that exceptions in the executive order and FAR make it possible to comply with statutory competition requirements.

4. Federal Property Act authority; “necessity”; deference; major questions

  • Georgia v. President of the United States: discussed as a recent Eleventh Circuit fragmented decision concerning an executive order requiring COVID-19 vaccination for federal contractors. The panel held Georgia did not create a controlling interpretation of the Federal Property Act beyond the narrow conclusion that plaintiffs there had a “reasonable chance to succeed” on that different mandate.
  • Redner v. Dean and Marks v. United States: used to explain how to extract binding precedent from fractured opinions; the panel concluded Georgia yielded only a narrow concurrence.
  • M'Culloch v. Maryland and Ayestas v. Davis: used to define “necessary” as potentially meaning “convenient, or useful, or essential,” supporting the view that the Federal Property Act’s “necessary” requirement is not rigid.
  • Learning Res., Inc. v. Trump and Trump v. Hawaii: invoked by the majority to emphasize discretion-conferring language and deference to presidential judgments; however, these citations triggered a significant partial concurrence (discussed below).
  • Florida v. Dep't of Health & Hum. Servs.: cited to reject the idea that broad statutory grants require specific enumerations of the particular policy tool used (here, PLAs).
  • West Virginia v. EPA: used to address—and reject—the associations’ major questions doctrine argument, emphasizing that this is procurement/proprietary action in a limited sphere rather than an “extraordinary grant of regulatory authority.”
  • Perkins v. Lukens Steel Co. and NASA v. Nelson: invoked to reinforce the government’s greater latitude when acting as purchaser/employer/proprietor than when regulating the public at large.
  • Kentucky v. Biden: cited for the proposition that executive orders with a close nexus to ordinary labor-management may be less vulnerable under the Federal Property Act framework.

5. First Amendment association doctrine and compelled association

  • Boy Scouts of Am. v. Dale: supplied the test requiring (a) expressive association and (b) that forced inclusion significantly affect the group’s ability to express. The panel used Dale to conclude the associations failed to show their members’ construction contracting choices implicated expression in the relevant sense.
  • Rumsfeld v. F. for Acad. & Institutional Rights, Inc.: the main analog for rejecting the claimed “forced association” theory—“associate” may mean only interaction, which is not itself unconstitutional. The panel treated PLAs as contractual interaction not shown to burden expression.
  • Janus v. Am. Fed'n of State, Cnty., & Mun. Emps.: used to explain that the government’s interests as employer/proprietor differ from its regulatory interests, and that exclusive representation in bargaining is not per se unconstitutional.

6. APA review; presidential non-agency status; implementing directives

  • Franklin v. Massachusetts: establishes that the President is not an “agency” under the APA, so the executive order is not reviewable under APA arbitrary-and-capricious review.
  • Sierra Club v. Van Antwerp: provided the “exceedingly deferential” arbitrary-and-capricious standard and admonition against courts substituting their judgment.
  • Bradford v. U.S. Dep't of Lab.: cited for the principle that an agency implementing a lawful executive order may have little discretion to do otherwise; thus, failure to implement could itself be arbitrary/capricious if the order is lawful.

7. NLRA and government-as-proprietor labor arrangements

  • H. K. Porter Co. v. NLRB: distinguished as involving the NLRB improperly compelling contract terms in its referee role; the panel held that was inapposite where the government is specifying terms in its own procurement contracts.
  • Bldg. & Constr. Trades Council of Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc. (Bos. Harbor): a cornerstone for the panel’s labor-law analysis. Bos. Harbor recognizes that when the government acts as a proprietor, it can choose contractors based on willingness to enter prehire agreements, and can “participate freely in the marketplace” without offending the NLRA.

8. Waiver/forfeiture and amicus limits

  • Sapuppo v. Allstate Floridian Ins. Co.: enforced forfeiture where an argument is raised only cursorily (here, “aid and abet” infringement assertions and related theories).
  • Glob. Marine Expl., Inc. v. Republic of France: applied to prevent amici from expanding the appeal beyond issues preserved by the parties.

B. Legal Reasoning

1. The “new” operational rule on preliminary injunctions in multi-claim procurement challenges

The court corrected two recurring errors that can arise in procurement-adjacent constitutional/statutory litigation:

  • Claim-by-claim irreparable-harm assessment: Citing N. Am. Med. Corp. v. Axiom Worldwide, Inc., the panel held the district court should not deny preliminary relief by analyzing irreparable harm only as to one claim when multiple claims support the requested injunction—particularly where some claims (like First Amendment claims under Otto v. City of Boca Raton) can carry different irreparable-harm presumptions.
  • Equitable remedies elsewhere do not negate irreparable harm: The district court reasoned that bid protests in the Court of Federal Claims made harm reparable. The panel rejected this, emphasizing that the irreparable-harm inquiry turns on the existence of adequate legal (monetary) remedies, not the possibility of alternative equitable relief. The panel highlighted Congress’s monetary limits in bid protests (bid-preparation and proposal costs), underscoring that “availability of injunction somewhere else” is not the irreparable-harm test.

Importantly, these corrections did not change the outcome, because the associations still failed on likelihood of success.

2. Competition Act facial challenge fails because the regime embeds statutory compliance through exceptions

The associations’ Competition Act theory was structural: PLAs allegedly deter or exclude nonunion contractors and thus undermine “full and open competition.” The panel responded with a facial-challenge move: the executive order and FAR contain explicit exceptions permitting agencies to avoid PLAs when necessary to preserve “full and open competition” or to avoid inconsistency with “statutes” and “regulations.” Because those exceptions make at least one set of valid applications possible (i.e., faithful use of exceptions), the facial claim fails under SisterSong Women of Color Reprod. Just. Collective v. Governor of Ga. and United States v. Salerno.

The panel criticized the district court’s reliance on the government’s alleged “course of dealing” in declining to grant exceptions: that line of analysis is inherently as-applied, but the associations repeatedly insisted their suit was purely facial and not tied to particular procurements.

3. Federal Property Act: PLAs fall within procurement “economy and efficiency,” and the order is “consistent with” the subtitle

Interpreting 40 U.S.C. § 121(a), the panel required two things: the President must consider the policy “necessary to carry out” the relevant subtitle and it must be “consistent with” that subtitle. The court reasoned that, because the subtitle incorporates provisions allowing agencies to include “restrictive provisions or conditions” necessary to meet procurement needs, the President may direct agencies to presumptively include PLAs as a contract condition for large-scale construction.

The opinion emphasized the executive order’s findings about large projects and stability, and relied on Bldg. & Constr. Trades Council of Metro. Dist. v. Associated Builders & Contractors of Mass./R.I., Inc. (Bos. Harbor) to support the proposition that PLAs can address construction-industry conditions like steady labor supply and predictable costs. It also stressed the presence of exceptions when PLAs would not serve economy/efficiency or would conflict with law.

The panel rejected the “major questions doctrine” argument (citing West Virginia v. EPA) chiefly because this is a proprietary procurement condition, not an agency’s extraordinary assertion of regulatory authority over the public at large. It leaned on Perkins v. Lukens Steel Co. and NASA v. Nelson for the government’s “freer hand” as purchaser/employer.

4. First Amendment: no identified unconstitutional applications; “interaction” is not compelled expressive association

The associations framed the PLA presumption as compelled association with unions. The panel applied Boy Scouts of Am. v. Dale and found the associations did not establish that their members’ conduct here involved expressive association, nor that PLAs would significantly affect any expressive activity.

Using Rumsfeld v. F. for Acad. & Institutional Rights, Inc., the court characterized the required “association” as, at most, compelled interaction as part of contract performance—insufficient to trigger the asserted First Amendment injury absent a showing of expressive burden. On the facial posture, the failure to identify even one unconstitutional application was fatal under Moody v. NetChoice, LLC.

The panel also relied on the proprietor/employer distinction described in Janus v. Am. Fed'n of State, Cnty., & Mun. Emps. and NASA v. Nelson to support the government’s latitude in setting labor-management terms for its own projects.

5. APA / OFPP Act / NLRA: the order is not APA-reviewable; implementing rulemaking was rational; NLRA limits on the NLRB do not apply to procurement terms

  • APA: Under Franklin v. Massachusetts, the executive order itself is not reviewable as “agency action.” As for the FAR rule, the court reasoned that implementing a lawful executive order is not arbitrary and capricious, and the Council reviewed comments and made changes. The standard from Sierra Club v. Van Antwerp supported deference to the agency’s rational path.
  • Office of Federal Procurement Policy Act: The challenge to OMB guidance was treated as inadequately briefed (raised cursorily), undermining the associations’ ability to carry the preliminary-injunction burden.
  • NLRA: The associations’ reliance on § 8(d) and H. K. Porter Co. v. NLRB failed because that line of cases limits the NLRB’s power as a bargaining-process referee, not the government’s ability to specify terms as a purchaser. Bos. Harbor was the controlling conceptual guide: government-as-proprietor may condition contracting on a willingness to enter a PLA/prehire agreement.

C. Impact

The decision’s most immediate effects are procedural and structural:

  • Litigation strategy in procurement challenges: Plaintiffs seeking preliminary relief must still meet strict standards, but district courts in the Eleventh Circuit are now clearly instructed to analyze irreparable harm for each claim supporting requested injunctive relief. That matters in “kitchen sink” complaints pairing procurement statutes with First Amendment or other constitutional claims.
  • Facial challenges to procurement regimes with exceptions become harder: Where an executive order/regulation contains textual exceptions designed to preserve statutory compliance (competition, economy/efficiency, legality), plaintiffs face a steep uphill battle under Salerno/SisterSong. The opinion signals that arguments about real-world underuse of exceptions will be treated as as-applied and cannot carry a purely facial case.
  • Federal Property Act as a stable basis for PLA procurement policy: The panel’s reasoning—especially its focus on “restrictive conditions” in solicitations and government-as-proprietor authority—supports continued cross-administration durability for PLA-related executive policy, so long as exceptions are preserved and the nexus to economy/efficiency and project management is articulated.

The partial concurrence by Judge Abudu also has forward-looking importance: it signals skepticism about importing deference rationales from national-security/immigration cases (Learning Res., Inc. v. Trump and Trump v. Hawaii) into the procurement/proprietor context. Future litigants may use that concurrence to narrow the deference language and keep the Federal Property Act analysis anchored in its “consistent with this subtitle” constraint.

IV. Complex Concepts Simplified

  • Project labor agreement (PLA): A master labor deal for a specific construction project that sets uniform rules (wages, hours, dispute resolution) and requires contractors/subcontractors on the job to follow it.
  • Facial challenge: An argument that a policy is invalid in all (or nearly all) its applications, not just as applied to particular facts. Courts reject facial challenges if there exists at least one valid application (statutory) or if unconstitutional applications do not “substantially outweigh” constitutional ones (First Amendment).
  • Preliminary injunction: Emergency, early-stage relief. The movant must show likelihood of success, irreparable harm, favorable balance of equities, and consistency with the public interest.
  • Irreparable harm vs. other remedies: Harm is “irreparable” when money damages (a legal remedy) cannot fix it. The possibility of getting an injunction somewhere else is not the same as having an adequate legal remedy.
  • Government as “proprietor” vs. “regulator”: When the government buys services (like construction), it has more leeway to set contract terms than when it regulates the public generally through lawmaking and enforcement.
  • Major questions doctrine: Courts sometimes require clear congressional authorization when the government claims extraordinary, highly consequential regulatory power. The panel held procurement terms for a subset of federal construction contracts do not fit that pattern.
  • APA “arbitrary and capricious” review: A deferential check that asks whether the agency’s decision was rational and explained, not whether the court agrees with it. The President’s executive orders are not reviewed under the APA because the President is not an “agency.”

V. Conclusion

The Eleventh Circuit affirmed the denial of preliminary injunctive relief against the federal PLA procurement presumption, holding the associations were unlikely to win their facial statutory and constitutional claims. The court simultaneously clarified two important procedural points for injunction practice: (1) irreparable harm must be evaluated claim-by-claim in multi-claim preliminary injunction motions, and (2) the presence of alternative equitable remedies (such as bid-protest injunctions in another court) does not, by itself, defeat irreparable harm.

On the merits, the opinion reinforces that procurement policies containing explicit statutory-compliance exceptions are difficult targets for facial attack; it situates PLA requirements within the government’s proprietor authority under the Federal Property Act and within established labor-procurement doctrine reflected in Bos. Harbor. Judge Abudu’s concurrence cautions against overreading deference precedents from foreign affairs and immigration, an interpretive note that may shape how future panels calibrate presidential “necessity” judgments in the procurement context.