STATE OF GEORGIA v. FEDERAL DEFENDER PROGRAM, INC.

Virgil Delano Presnell, Jr. has been on Georgia's death row for decades. After the state sought to resume his execution in 2022, the Federal Defender Program sued, arguing the state had promised in an email agreement not to pursue executions for certain inmates until COVID-19 vaccines were 'readily available to all members of the public,' among other conditions. A Fulton County judge agreed the vaccine condition was not met because the FDA had not approved COVID-19 vaccines for children under six months old, and permanently blocked the state from moving forward with related executions. The state appealed, arguing the judge added a requirement (FDA approval for every age group) that the contract's actual wording never demanded. The Supreme Court of Georgia agreed. It held that 'readily available' just means the vaccine can be obtained without much difficulty, not that federal regulators must have formally approved it for that age group, and it found undisputed evidence the vaccine is accessible to everyone, so the condition has been satisfied. The court also rejected an argument that the appeal was procedurally barred, and reversed and sent the case back for further proceedings.

The Vaccine Condition's phrase 'readily available' means a vaccine must be accessible and obtainable without much difficulty; it does not require FDA approval for every age group. Because undisputed evidence showed adequate vaccine supply and no legal barrier to vaccinating any age group when medically appropriate, the condition was satisfied as a matter of law.

The ruling clears a legal hurdle that had kept the state from seeking execution orders for death row inmates covered by the 2021 agreement, including Presnell, while also showing how Georgia courts read contract language literally rather than importing outside regulatory standards like FDA approval into a private agreement's terms.

Reversed and remanded

1. The court first resolved a jurisdictional challenge: the Prison Litigation Reform Act requires appeals of 'actions filed by prisoners' to go through a discretionary application process, but the court held that a death row inmate's motion to intervene in an existing lawsuit is not itself an 'action' he filed, because an intervenor 'takes the case as he finds it' rather than starting a new proceeding, so the state's direct appeal was properly filed.
2. The court then applied the law-of-the-case doctrine, meaning a legal ruling from an earlier stage of the same lawsuit binds all later stages even if the record has changed; because a prior decision in this same case already held that the vaccine condition's phrase 'all members of the public' includes no age limit, that interpretation remained binding.
3. Interpreting the contract's language using its ordinary dictionary meaning, the court concluded that 'readily available' means a vaccine must be accessible or obtainable without much difficulty, and found nothing in that phrase tying availability to whether the FDA has formally approved the vaccine for a particular age group.
4. Applying that standard to the undisputed facts, the court found the vaccine supply exceeds public demand and that no law or regulation actually stops a doctor from giving the vaccine to a child under six months old if medically appropriate, so the condition allowing executions to resume was satisfied.
5. The court treated the plaintiffs' expert's claim that providers 'cannot' vaccinate infants under six months as an unsupported legal conclusion rather than a fact, since the expert pointed to no actual rule or label restriction barring it, and courts need not accept legal conclusions as evidence on summary judgment.

• death row execution stay
• COVID-19 vaccine agreement
• Presnell execution case
• breach of contract lawsuit
• Prison Litigation Reform Act