Background
Virgil Delano Presnell, Jr., a death row inmate, has been on Georgia’s death row for decades. After an execution order issued for Presnell in April 2022, the Federal Defender Program, Inc. — a nonprofit whose Capital Habeas Unit represents death row inmates in federal post-conviction and clemency proceedings — filed suit against the State of Georgia and the Attorney General for breach of contract. The Federal Defender alleged that the State violated an agreement, formed through an email exchange between a deputy attorney general and capital defense attorneys, governing the conditions under which the State would resume executions after the COVID-19 pandemic. The agreement provided that the Attorney General’s office would not pursue execution warrants until, among other conditions, “a vaccination against COVID-19 is readily available to all members of the public” (the “Vaccine Condition”).
In a prior appeal, the Georgia Supreme Court upheld the agreement as an enforceable contract and affirmed an interlocutory injunction halting covered executions, holding that the agreement’s plain language placed “no limitation on the age of who is considered a member of the public.” State v. Fed. Defender Program, Inc., 315 Ga. 319 (2022) (Federal Defender I). On remand, the parties cross-moved for partial summary judgment solely on the Vaccine Condition. The trial court granted summary judgment to the Federal Defender, declared the Vaccine Condition unsatisfied because the FDA had not approved COVID-19 vaccines for children under six months old, and issued a permanent injunction barring the State from pursuing covered execution orders until all conditions and notice requirements of the agreement were met.
The State appealed, contending the trial court misconstrued the Vaccine Condition by engrafting an FDA-approval requirement that did not appear in the agreement’s text. The Appellees moved to dismiss for lack of jurisdiction, arguing the appeal was subject to the Prison Litigation Reform Act’s discretionary-application requirement because inmate Presnell had intervened in the suit.
The Court’s Holding
The Supreme Court of Georgia unanimously reversed and remanded. As a threshold matter, the Court rejected the jurisdictional challenge, holding that Presnell’s intervention did not transform the action into one “filed by a prisoner” under the Prison Litigation Reform Act, OCGA § 42-12-8. Because an intervenor takes the case as found and cannot expand the litigation, Presnell was not deemed to have filed the underlying action, and the State’s direct appeal was proper.
On the merits, the Court held that the trial court erred by reading an FDA-approval requirement into the Vaccine Condition. Applying standard contract-construction principles and dictionary definitions, the Court construed “readily available” to mean accessible or obtainable without much difficulty — not contingent on FDA approval for every age cohort. The Court confirmed as law of the case that “all members of the public” includes children under six months old, but held that nothing in the agreement’s plain language conditions satisfaction of the Vaccine Condition on the FDA’s regulatory decisions for that age group.
The Court further found no genuine issue of material fact: the undisputed record showed that COVID-19 vaccine supply exceeds public demand, that no statute or regulation legally prohibits a medical provider from administering the vaccine to children under six months old if deemed medically appropriate (consistent with accepted off-label use principles), and that the Appellees’ expert’s contrary conclusion was an unsupported legal conclusion rather than competent evidence. Accordingly, the Vaccine Condition was satisfied as of at least March 2023, and the permanent injunction could not stand.
Key Takeaways
- Courts may not add terms — such as an FDA-approval requirement — to contract language that does not contain them; the plain meaning of “readily available” turns on accessibility and ease of obtainment, not regulatory approval status.
- An intervenor’s participation in a civil lawsuit does not convert the action into one “filed by” that intervenor for purposes of the Prison Litigation Reform Act’s discretionary-appeal requirement.
- Expert affidavits that assert legal conclusions rather than point to specific statutes, regulations, or label restrictions are insufficient to create a genuine issue of material fact on summary judgment.
- A concurrence by three justices signaled that the agreement binds only the Attorney General’s office — not district attorneys — leaving district attorneys free to seek execution warrants independently under their independent constitutional authority.
Why It Matters
This decision removes the last major contractual barrier to the resumption of executions for a cohort of Georgia death row inmates whose cases were placed on hold during the COVID-19 pandemic. By holding that “readily available” requires only practical accessibility — not universal FDA authorization — the Court reaffirms that courts must enforce contracts as written and may not read in regulatory preconditions the parties themselves did not negotiate. The ruling has immediate practical significance for Presnell and other covered inmates, as the permanent injunction is lifted on remand.
More broadly, the decision clarifies Georgia’s law-of-the-case doctrine in the context of interlocutory rulings, confirming that legal holdings made at the preliminary-injunction stage bind all subsequent proceedings regardless of a fuller evidentiary record. The concurrence’s observation that district attorneys retain independent authority to seek execution warrants — unconstrained by the agreement — may further shape how capital litigation proceeds in Georgia going forward.