STATE OF GEORGIA v. FEDERAL DEFENDER PROGRAM, INC.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the
Supreme Court of Georgia
No. S26A0364
STATE OF GEORGIA et al.
v.
FEDERAL DEFENDER PROGRAM, INC. et al.

On Appeal from the Superior Court of Fulton County
No. 2022CV364429

Argued: March 18, 2026 Decided: June 2, 2026

MCMILLIAN, Justice.
Virgil Delano Presnell, Jr., has been on Georgia’s death row
for decades. 1 After an execution order issued for him in April
2022, the Federal Defender Program, Inc. (“Federal Defender”), 2
filed an action for breach of contract on its own behalf against the
State of Georgia and Christopher M. Carr in his official capacity
as Attorney General (collectively, the “State”), claiming that the
State breached an agreement about the timing and procedures
that the State would follow in resuming executions for certain

1 See Presnell v. State, 274 Ga. 246 (2001), cert. denied, 535 US 1059
(2002).
2 The Federal Defender is a domestic non-profit corporation whose
Capital Habeas Unit represents death row inmates in federal post-conviction
proceedings and in state clemency proceedings. Presnell and the Georgia Ap-
pellate Practice and Educational Resource Center, Inc., a domestic non-profit
corporation whose attorneys represent death row inmates in state habeas pro-
ceedings and in state clemency proceedings, later moved to intervene in the
lawsuit, which was granted. We refer to these three collectively as the “Appel-
lees.”
death row inmates after the COVID-19 pandemic (the “Agree-
ment”). In a prior opinion, this Court held that the Agreement
was valid and enforceable and that the trial court did not abuse
its discretion in granting an interlocutory injunction, which pro-
hibited the State from pursuing execution orders for inmates cov-
ered by the Agreement and which effectively stayed Presnell’s ex-
ecution. 3 State v. Fed. Defender Program, Inc., 315 Ga. 319, 355
(2022) (“Federal Defender I”).
The matter now returns on direct appeal from the trial
court’s grant of partial summary judgment, concluding that one
Agreement condition—that is, whether COVID-19 vaccines are
“readily available to all members of the public” (the “Vaccine Con-
dition”)—has not been met because vaccines are not approved by
the U.S. Food and Drug Administration (“FDA”) for children un-
der six months old. Based on this conclusion, the trial court per-
manently enjoined the State from resuming certain executions
until the conditions and notice requirements of the Agreement are
met. The State contends that, in granting partial summary judg-
ment to the Appellees and in denying partial summary judgment
to the State, the trial court erred by: (1) failing to apply the Agree-
ment’s plain language and, instead, substituting a requirement
that the Vaccine Condition is not satisfied until the FDA approves
COVID-19 vaccines for children under six months old; (2) inter-
preting the Vaccine Condition in a manner that results in an in-
definite contract; and (3) imposing an overly broad injunction that
goes beyond the scope of the Agreement.
We conclude that the trial court erred in construing the
Vaccine Condition, and that when correctly construed according
to its plain language, the undisputed evidence shows no genuine

3 The interlocutory injunction has since remained in place.

2
issue of material fact about the condition’s satisfaction. So we re-
verse and remand for further proceedings.
1. The facts are set out in detail in Federal Defender I, but
briefly, in that case we held that an e-mail exchange between a
deputy attorney general and an attorney employed by the Federal
Defender and other capital defense attorneys constituted a writ-
ten contract about the timing and procedures that the State
would follow in resuming executions for certain death row in-
mates after the COVID-19 pandemic. See 315 Ga. at 344. That
email exchange, in relevant part, stated as follows:
Our office will not pursue an execution warrant from
the District Attorney in the below defined cases be-
fore: 1) the final COVID19 judicial emergency order
entered by the Chief Justice of the Supreme Court of
Georgia expires;[ 4] 2) the Georgia Department of
Corrections lifts its suspension of legal visitation,
and normal visitation resumes; and [3)] a vaccina-
tion against COVID19 is readily available to all
members of the public.

Id. at 321. It further stated that:
the “agreement applie[d] only to death-sentenced
prisoners whose petition for rehearing or rehearing
en banc was denied by the Eleventh Circuit while
the State of Georgia remained under judicial emer-
gency order” and that, with one named excep-
tion, the Attorney General’s office agreed “not [to]

4 The judicial emergency order was first issued on March 14, 2020, and
expired after 15 extensions on June 30, 2021. See Federal Defender I, 315 Ga.
at 320 n.3. In the prior appeal, the Appellees conceded that this condition has
been met. See id. at 322.

3
pursue an execution warrant of any prisoner ... be-
fore a total of at least six months after the time the
above-three conditions [we]re met.”

Id. (original internal footnote omitted). The email exchange con-
cluded by stating that “the agreement was ‘made with the under-
standing that the District Attorney maintain[ed] the sole author-
ity to obtain an execution warrant.’” Id.
After the trial court granted an interlocutory injunction
precluding the State from pursuing executions of inmates covered
by the Agreement, concluding that the conditions in the Agree-
ment had not been met, the State, on appeal, argued in relevant
part that it had substantially complied with the Agreement’s
terms and that the trial court erred in granting the interlocutory
injunction because “multiple FDA-approved vaccines have been
‘widely available’ since the winter of 2020” and the trial court’s
“‘extreme interpretation’ of the term ‘all members of the public’ as
including children under five years of age is contrary to the ‘sub-
stantial compliance’ rule.” Federal Defender I, 315 Ga. at 351.
However, we disagreed with the State’s position, concluding that
“the Agreement’s plain language, drafted by the State, places no
limitation on the age of who is considered a member of the public.”
Id. We further concluded that, because the Agreement was en-
tered in April 2021, regardless of the level of vaccine availability
in the winter of 2020, it could not have been what the parties in-
tended to satisfy the Agreement. Id.
After this Court affirmed the trial court’s interlocutory rul-
ing, the parties agreed to litigate the remaining issues separately,
starting with the Vaccine Condition. 5 After discovery, the parties

5 The Agreement’s condition regarding inmate visitation has not yet
been litigated.

4
cross-moved for partial summary judgment. In its motion, the
State argued that the Vaccine Condition has been met, and in the
alternative, that the condition had been substantially complied
with since March 2023, which is when the Fulton County Supe-
rior Court lifted its COVID-19-related restrictions after recogniz-
ing that “vaccines are now available to all Georgians,” and when
vaccines became “readily available” to all persons six months old
and older who are eligible to receive a COVID-19 vaccine. Lastly,
the State argued that the Agreement’s purpose has been fulfilled
because the capital defense bar has had years to accommodate the
pandemic-created backlog of execution-eligible inmates; the State
has since executed one death row prisoner who had a full clem-
ency hearing;6 and that, since March 2023, the work of the Fed-
eral Defender and the Georgia Appellate Practice and Educa-
tional Resource Center, Inc., on behalf of death row prisoners has
not been hindered due to COVID-19. Conversely, in their motion,
the Appellees argued that the State breached the Agreement by
seeking Presnell’s execution order when COVID-19 vaccines were
then-unavailable to children under five years old and without giv-
ing adequate notice. The Appellees further claimed that the Vac-
cine Condition has not been met because the FDA has not ap-
proved COVID-19 vaccines for children under six months old. In
support, the Appellees pointed to their epidemiology expert’s affi-
davit, swearing that, due to not having FDA-approval, “medical

6 In early 2024, the State obtained an execution order for death row
inmate Willie Pye. Pye moved to intervene in this action, claiming that he was
an intended third-party beneficiary to the Agreement, and, as such, his execu-
tion should also be enjoined. The trial court disagreed, concluding that Pye did
not fall within the class of prisoners covered by the Agreement. Pye’s clemency
hearing was then held before the State Board of Pardons and Paroles with
multiple witnesses in attendance in March 2024. Pye was denied clemency and
subsequently executed.

5
and pharmaceutical providers cannot provide the vaccine to chil-
dren in this age range due to the lack of a label indication and
differences in dosing amounts for different age groups.”
After the evidentiary hearing, the trial court denied the
State’s motion for partial summary and granted the Appellees’
cross-motion for partial summary judgment. Specifically, the trial
court granted the Appellees specific performance of the Agree-
ment and ordered the State to perform the Agreement according
to its terms; declaratory relief, including declaring that the Vac-
cine Condition remains unsatisfied because the FDA has not ap-
proved a COVID-19 vaccine for children under six months old;
and, based on these rulings, a permanent injunction prohibiting
the State from seeking certain execution orders until all COVID-
19-related conditions and notice requirements are met. 7 Citing
Federal Defender I, 315 Ga. at 351, the trial court explained that
“[u]nder binding law of the case, the Vaccine Condition ‘places no
limitation on the age of who is considered a member of the public’”
and that COVID-19 vaccines are not currently available to “all
members of the public” because the FDA has not approved their

7 The trial court also enjoined the State from seeking an execution or-
der for death row inmate Michael Nance. The trial court explained that, while
the Agreement provides that the State would not seek Nance’s execution order
“until the United States Supreme Court has denied a request of certiorari from
the Eleventh Circuit Court of Appeals of his § 1983 litigation,” its plain lan-
guage and context supports that this was intended as an additional condition
that must be met, rather than the sole one. The State contends that the
COVID-19-related conditions apply only to inmates whose federal habeas pro-
ceedings were resolved during the judicial emergency and that Nance does not
fall within this group. Because we conclude that the trial court erred in con-
struing the Vaccine Condition, which contributed to its imposing the injunc-
tion, and reverse the trial court’s order, we do not find it necessary to reach the
merits of this claim.

6
use for children under six months old. The trial court further ex-
plained that, without the injunction, “Plaintiffs will be deprived
of the bargained-for time and notice needed to adequately prepare
for clemency proceedings,” and “Presnell and the other prisoners
covered by the Agreement will face grave damage: premature
death.” This appeal followed.
2. As a threshold matter raised by the Appellees’ motion to
dismiss, we first consider whether this Court has jurisdiction over
the State’s direct appeal. The Appellees contend that, because
Presnell’s intervention complaint is an “action” under the Prison
Litigation Reform Act (“PLRA”), OCGA § 42-12-1 et seq., the
State’s appeal must be dismissed as the PLRA requires that
“[a]ppeals of all actions filed by prisoners shall be as provided in
Code Section 5-6-35 [concerning discretionary applications].”
OCGA § 42-12-8. We disagree.
When interpreting a statute, we give the text its “plain and
ordinary meaning,” Deal v. Coleman, 294 Ga. 170, 172 (2013)
(punctuation omitted), and we discern that meaning by reading
the relevant language “in its most natural and reasonable way,
as an ordinary speaker of the English language would,” State v.
Islam, 321 Ga. 30, 32 (2025) (punctuation omitted). To that end,
we must consider the text not in a vacuum, but in the “context in
which it appears.” Id. (punctuation omitted). This includes con-
sidering the surrounding statutory language, the statute’s struc-
ture and history, and other law that makes up the legal backdrop
against which the language was enacted. See State v. Harris, 319
Ga. 665, 667 (2024).
The key question is whether this appeal is from an action
filed by a prisoner under the PLRA. See OCGA § 42-12-8. The
parties do not dispute that Presnell is a “prisoner” under the
PLRA. See OCGA § 42-12-3(4) (defining “[p]risoner,” in relevant

7
part, as “a person 17 years of age or older who has been convicted
of a crime and is presently incarcerated”). Nor is it disputed that
Presnell did not file the underlying lawsuit or initiate this appeal
and that the Federal Defender, which filed the underlying law-
suit, and the State, which initiated this appeal and the previous
appeal, are not prisoners. Instead, the Appellees argue that be-
cause Presnell intervened in the lawsuit, he became a party-
plaintiff and should be considered as initiating the action and that
the intervention itself should be considered an “action” under the
PLRA.
We reject the Appellees’ contention that as an intervenor,
Presnell is considered to have filed the action below. “[I]nterve-
nors are bound by the fundamental rule that an intervenor takes
the case as he finds it and cannot inject new issues.” Undercofler
v. Seaboard Air Line R. Co., 222 Ga. 822, 829 (1966). See also
Todd v. Conner, 220 Ga. 173, 179 (1964) (“In all instances, … the
intervenor takes the case as he finds it[.]”); O’Brien v. Builders
Ins., 350 Ga. App. 77, 78 (2019) (quoting AC Corp. v. Myree, 221
Ga. App. 513, 515 (1996) (“‘A true intervenor takes the case as he
finds it and cannot expand the litigation; he or she merely stakes
a claim to a share in the results of the pending litigation.’”)). And,
as a true intervenor, Presnell did not expand the litigation below;
he simply joined the pending action to stake a claim in its results.
Thus, Presnell cannot be considered as filing the action below.
The Appellees also contend that an intervention is a “pro-
ceeding” within the meaning of the PLRA’s definition of “action,”
which is defined by statute as “any civil lawsuit, action, or pro-
ceeding.” OCGA § 42-12-3(1). We disagree. A person seeking to
intervene files an “application” or “motion” in “an action.” See
OCGA § 9-11-24 (emphasis supplied). Moreover, the PLRA ap-
plies only to civil proceedings, see OCGA § 42-12-3(1), and in the

8
context of civil proceedings, “action” is ordinarily understood as
an “entire lawsuit.” State v. SASS Grp., LLC, 315 Ga. 893, 900–
01 (2023) (explaining that “‘action’ is more commonly used to refer
to a ‘whole lawsuit’ rather than a claim”). See also, e.g., Merriam
Webster’s Collegiate Dictionary (11th ed. 2020) (defining “action”
as “the initiating of a proceeding in a court of justice by which one
demands or enforces one’s right”). Indeed, “[p]roceeding” is gener-
ally defined as “the form and manner of conducting juridical busi-
ness before a court or judicial officer,” and “may be used synony-
mously with ‘action’ or ‘suit’ to describe the entire course of an
action at law or suit in equity from the issuance of the writ or
filing of the complaint until the entry of a final judgment.” Pro-
ceeding, Black’s Law Dictionary (6th ed. 1990). See also Proceed-
ing, The American Heritage Dictionary: Second College Edition
(3rd ed. 1993) (defining “proceeding” as “legal action” and “litiga-
tion”); Proceeding, The Law Dictionary, Wesley Gilmer, Jr. (6th
ed. 1986) (defining “proceeding” as “an action at law or a suit in
equity”). Because Presnell’s motion to intervene was a pleading
filed in a pending lawsuit, it cannot reasonably be considered an
“action” filed by a prisoner as defined by the PLRA.
The cases relied on by the Appellees do not change our con-
clusion. While Ray v. Barber, 273 Ga. 856 (2001), held that the
PLRA requires even non-prisoners to appeal by application, see
id. at 856, we later clarified that this rule applies “when a non-
prisoner files an appeal of an action originally filed by a prisoner,”
Brown v. Crawford, 289 Ga. 722, 725 (2011) (emphasis added).
And though Griffin v. Keller, 278 Ga. 878 (2005), held that a non-
party prisoner’s appeal from the denial of his motion to set aside
a mandamus judgment was subject to the PLRA, see id. at 879,
that is consistent with the statutory definition of “action” as “ap-
peals … filed by a prisoner,” OCGA § 42-12-3(1). Finally, although
the Appellees assert that Serpentfoot v. Salmon, 225 Ga. App. 478

9
(1997), held that a prisoner’s motion for contempt was an “action”
subject to the PLRA, the prisoner’s so-called “motion” was not
filed in an existing proceeding but, rather, it initiated the proceed-
ings in that case. Id. at 478.
Thus, because the PLRA requires appealing by discretion-
ary application only if the appeal arises from “actions filed by pris-
oners,” OCGA § 42-12-8, of which Presnell’s intervention does not
qualify, the form of this appeal is proper. Accordingly, we deny
the Appellees’ motion to dismiss.
3. Turning to the merits, we start by setting out the legal
standard for reviewing a grant or denial of summary judgment.
“We use a de novo standard of review on appeal from a grant [or
denial] of summary judgment, and view the evidence, and all rea-
sonable inferences drawn therefrom, in the light most favorable
to the non-movant.” Kaplan v. City of Sandy Springs, 286 Ga. 559,
560 (2010), disapproved on other grounds by Sumter Co. v. Mor-
ris, 318 Ga. 1, 10 (2023). Under OCGA § 9-11-56(c), summary
judgment is proper “if the pleadings, depositions, answers to in-
terrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law.” In reviewing a motion for summary judgment, we are not
required to accept legal conclusions in the supporting materials.
See GE Cap. Mtg. Servs., Inc. v. Clack, 271 Ga. 82, 84 (1999) (“The
surveyor’s testimony to the contrary was a legal conclusion and,
as such, cannot be considered as evidence on motion for summary
judgment.”); Love v. Love, 259 Ga. 423, 424 (1989) (explaining
that where the appellant’s affidavit contained inadmissible legal
conclusions, “the conclusions are to be disregarded in considering
the affidavit in connection with the motion for summary judg-
ment”).

10
On summary judgment, the following material facts are
undisputed. 8 In the Agreement with respect to the Vaccine Con-
dition, the Office of the Attorney General set out:
Our office will not pursue an execution warrant from
the District Attorney in the below defined cases be-
fore … a vaccination against COVID19 is readily
available to all members of the public.

Although COVID-19 vaccines were in short supply during
the pandemic and for some time after, the supply now exceeds the
public’s demand. And, though COVID-19 vaccines were not yet
FDA-approved for children under five years old when the inter-
locutory injunction was imposed, in June 2022, COVID-19 vac-
cines were FDA-approved for all persons who are at least six
months old. As explained by the Appellees’ epidemiology expert,
Dr. Aaron Siegler from Emory University, the FDA is the final
decision-making body that determines vaccine approval for all
vaccines. 9 Its approval determinations are based on collected

8 In granting summary judgment, the trial court is supposed to view
the facts in the light most favorable to the nonmoving party or rely on undis-
puted facts. Yet the trial court here made factual findings in the summary
judgment order, even though some were disputed. We do not rely on those dis-
puted findings but, instead, review the record de novo and set out only the
record’s relevant, undisputed facts.
9 The Public Health Service Act (“PHSA”) and the Federal Food, Drug,
and Cosmetic Act (“FDCA”) provide the FDA with the authority to regulate
vaccines. Defining a vaccine as a “biological product,” 42 USC § 262(i)(1), under
the PHSA, the FDA can only issue a biologics license if the vaccine is shown to
be “safe, pure, and potent,” 42 USC § 262(a)(2)(c)(i)(I). See also 42 USCA §
262(a)(1)(A) (prohibiting the introduction into interstate commerce of any bio-
logical product unless a biologics license is in effect for the product). And, under
the FDCA, the FDA must approve all drugs—to include vaccines—on the mar-
ket as safe and effective. See 21 USC § 355(a) (“No person shall introduce or

11
safety and efficacy data related to the approved cohorts. In mak-
ing its final determination about COVID-19 vaccines, the FDA
convened its staff of professionals and a panel of external scien-
tists and other experts in the field to advise during the approval
processes. And, because of the public health emergency caused by
the pandemic, COVID-19 vaccines initially received FDA ap-
proval by emergency use authorization (“EUA”), which expedited
approval based on less data than used in the FDA’s standard ap-
proval process to obtain full vaccine clearance. However, the rel-
evant studies still had to show the safety and effectiveness of the
vaccine to obtain approval by EUA. After EUAs were granted, the
FDA gathered its own additional data and had other pharmaceu-
tical or other testing companies gather sufficient data to begin
allowing for full vaccine clearance. As of March 2024, the FDA
had granted full clearance of COVID-19 vaccines for adults, while
children six months old and older had at least EUA approval. Re-
gardless, Dr. Siegler identified no functional difference between
the two approval types. Once a vaccine is FDA-approved, promo-
tion of the vaccine is allowed to move forward.
With respect to vaccine availability to children under six
months old, Dr. Siegler testified that “it’s very likely that vaccines
will be eventually approved for this age group.” The State’s ex-
pert, Dr. Peter Rissing, likewise agreed that there is a “probabil-
ity” that, in the coming months or years, vaccines will “become
available” to this age group. And, by November 2023, the FDA

deliver for introduction into interstate commerce any new drug, unless an ap-
proval of an application filed pursuant to subsection (b) or (j) [of this section]
is effective with respect to such drug.”). Once FDA-approved for any indication,
the product may be placed on the market and prescribed for any use. See Iron-
workers Local Union 68 v. AstraZeneca Pharms., LLC, 634 F3d 1352, 1356 n.5
(11th Cir. 2011).

12
had approved two clinical trials involving that age group. How-
ever, both clinical trials have since been terminated. And, to date,
the FDA has still not approved COVID-19 vaccines for children
under six months old. That said, while other vaccines have been
approved for children under 12 weeks old—like Hepatitis B and
the newly FDA-approved RSV vaccines that may both be admin-
istered to infants at birth—most vaccines are not generally rec-
ommended for children under six months old.
On appeal, the State argues that the trial court erred in
concluding that under the law-of-the-case doctrine, this Court had
already determined in Federal Defender I that the Vaccine Con-
dition “places no limitation on the age of who is considered a mem-
ber of the public,” and that, consequently, “because the FDA has
not approved COVID-19 vaccines for children under six months
old[,] … they remain unavailable to ‘all members of the public.’”
While we agree with the trial court that under the law-of-the-case
doctrine, the Vaccine Condition’s reference to “all members of the
public” includes children under the age of six months, we disagree
that under the plain language of the Vaccine Condition, FDA-ap-
proval is required for the COVID-19 vaccine for all members of
the public.
Turning first to the meaning of the Vaccine Condition’s
phrase “all members of the public,” in Federal Defender I, we held
that “the Agreement’s plain language, drafted by the State, places
no limitation on the age of who is considered a member of the
public.” 315 Ga. at 351. The State argues that Federal Defender I
is not binding law of the case because that decision involved a
preliminary ruling and was based on an incomplete record. How-
ever, we have rejected similar arguments, concluding that rul-
ings, even on review of interlocutory injunctions, are binding on
subsequent proceedings because they are unaffected by changes

13
in evidence. See, e.g., Pirkle v. Turner, 281 Ga. 846, 846–47 (2007)
(concluding that a prior decision addressing a legal question con-
cerning the validity of certain deeds on review of a preliminary
injunction was “binding as the law of the case and is not open for
us to revisit” because “there is no amount of new evidence that
could change … a question of law”). Thus, this ruling is the law of
the case and remains binding on all further proceedings. See
OCGA § 9-11-60(h) (stating, in relevant part, that “any ruling by
the Supreme Court … in a case shall be binding in all subsequent
proceedings in that case in the lower court and in the Supreme
Court or the Court of Appeals as the case may be”).
We turn next to what it means under the Vaccine Condition
that a COVID-19 vaccine is “readily available” to all members of
the public, including children under the age of six months. The
cardinal rule of contract construction is “to ascertain the intent of
the parties.” State Auto Prop. and Cas. Co. v. Matty, 286 Ga. 611,
612 (2010). “[W]e generally accept that contractual terms carry
their ordinary meanings.” Archer W. Contractors, Ltd. v. Estate of
Pitts, 292 Ga. 219, 224 (2012). And looking to the dictionary is “a
good place to start,” as “a dictionary is a useful tool for narrowing
the range of meanings ordinarily attributed to a word.” Id. That
said, our analysis into the plain meaning “is neither confined to
this sole provision nor to the literal meaning of the phrase[.]”
Langley v. MP Spring Lake, LLC, 307 Ga. 321, 325 (2019). In-
stead, “the context in which a contractual term appears always
must be considered in determining the meaning of the term.” Id.
(emphasis in original; cleaned up). Thus, to determine what the
parties intended to address in drafting the condition, we consider
the common meanings of the words used, the Agreement as a
whole, and “the legal context in which [the Agreement] was cre-
ated.” Id.

14
“Readily available” is not a term of art and is not defined
by the Agreement, so we start by looking at the dictionary defini-
tions of these terms. “Readily” is defined as “in a ready manner,”
“without much difficulty,” and “easily.” Readily, Merriam-Web-
ster’s Collegiate Dictionary (11th ed. 2020). See also Readily, The
American Heritage Dictionary (5th ed. 2012) (defining “readily”
as “[w]ithout hesitation; willingly,” and “[w]ithout difficulty; eas-
ily”); Readily, New Oxford American Dictionary (3rd ed. 2010)
(defining “readily,” in pertinent part, as “without delay or diffi-
culty; easily”). And “available” is defined, in relevant part, as:
“present or ready for immediate use” and “accessible, obtainable.”
Available, Merriam-Webster’s Collegiate Dictionary (11th ed.
2020). See also Available, The American Heritage Dictionary (5th
ed. 2012) (defining “available” as “[p]resent and ready for use; at
hand; accessible,” and “[c]apable of being gotten; obtainable”);
Available, New Oxford American Dictionary (3rd ed. 2010) (defin-
ing “available,” in pertinent part, as “[a]ble to be used or obtained;
at someone’s disposal”). Construed together, this adjective phrase
means that a COVID-19 vaccine must be present or accessible and
without much difficulty to obtain (or rather easily obtainable).
When further interpreted considering our holding in Federal De-
fender I that the condition’s plain language “places no limitation
on the age of who is considered a member of the public,” 315 Ga.
at 351, we conclude that the condition requires that COVID-19
vaccines must be accessible or obtainable without much difficulty
to all persons, regardless of age.
With that construction in mind, we see nothing in the plain
meaning of the term “readily available” that requires FDA ap-
proval of a COVID-19 vaccine for all age groups or in any way
conditions the determination of whether the COVID-19 vaccine is
“readily available” based on the regulatory decisions of the FDA.

15
A court is not permitted to add terms to the language of the con-
tract but, rather, it is bound by the words chosen by the parties.
See Daniel v. Daniel, 250 Ga. 849, 851 (1983) (“There is a strong
public policy in favor of enforcing contracts as written and agreed
upon.”). Thus, by adding an FDA-approval requirement for all age
groups, the trial court erred in its construction of the Vaccine Con-
dition.
4. Having now construed the terms of the Vaccine Condi-
tion, we consider whether a genuine issue of material fact exists
that a COVID-19 vaccine is “readily available to all members of
the public.” The parties do not dispute that since March 2023,
vaccines are “readily available” to all persons at least six months
old. Thus, we focus our analysis on whether the COVID-19 vac-
cine is also readily available to children under the age of six
months, which under the circumstances means whether a parent
can obtain the vaccine for her child without much difficulty.
A review of the record reveals nothing that legally prohib-
its children of any age from receiving a COVID-19 vaccine, if re-
quested by a parent and deemed medically appropriate. Most vac-
cines—like COVID-19 vaccines—are not generally recommended
for children under six months old, which could impact whether a
parent chooses to request a COVID-19 vaccine for her child or
whether a provider would agree in the exercise of her medical
judgment to administer the vaccine, but that does not mean that
the vaccine is not available or obtainable. 10 Moreover, it is undis-

10 For instance, Dr. Siegler, the Appellees’ epidemiology expert, agreed
that the COVID-19 vaccine is available for persons aged six months and older
while acknowledging that a person may have “certain conditions that may be
counter indicated” or that there are “other exceptions,” which may preclude the
person from obtaining a COVID-19 vaccine.

16
puted that the supply of COVID-19 vaccines now exceeds the pub-
lic’s demand.
While the Appellees’ expert averred by affidavit that
“[b]ecause the FDA has not authorized any COVID-19 vaccine for
those who are younger than 6 months of age, medical and phar-
maceutical providers cannot provide the vaccine to children in
this age range due to the lack of a label indication and differences
in dosing amounts for different age groups,” the expert did not
point to anything in the label indications or dosing amounts that
would prohibit a medical provider from providing the vaccine to
children under the age of six months. The expert also did not refer
to any statute or regulation from the FDA or any other entity that
would otherwise prohibit a medical provider from giving the vac-
cine to anyone, if the provider deemed it medically appropriate.
As such, this statement appears to be a legal conclusion, which
we are not required to accept for purposes of determining whether
a genuine issue of material fact exists as to whether the COVID-
19 vaccine is “readily available” to “all members of the public.”11
See Clack, 271 Ga. at 84; Love, 259 Ga. at 424.
Given that the State produced undisputed evidence that

11 We also note that, during oral argument, the State argued that the
administration of a COVID-19 vaccine to persons not indicated as approved by
the FDA is considered an “off-label” use and that the FDA does not prohibit
“off-label” uses because the FDA does not regulate the practice of medicine. See
Buckman Co. v. Plaintiffs’ Legal Comm., 531 US 341, 350 (2001) (“‘[O]ff-label’
usage of medical devices (use of a device for some other purpose than that for
which it has been approved by the FDA) is an accepted and necessary corollary
of the FDA’s mission to regulate in this area without directly interfering with
the practice of medicine.”). This provides additional support for why FDA ap-
proval of the COVID-19 vaccine for certain age groups does not prohibit a med-
ical provider from administering the vaccine to all members of the public, if the
provider deems it medically appropriate.

17
the supply of the COVID-19 vaccine is adequate for all members
of the public to obtain the vaccine and that no legal impediment
exists for all members of the public to be vaccinated, if deemed
medically appropriate, the trial court erred in concluding that the
COVID-19 vaccine was not “readily available” to all members of
the public. We, therefore, reverse the trial court’s order and re-
mand for further proceedings consistent with this opinion.12
Judgment reversed. All the Justices concur, except Peterson,
C. J., and Pinson, J., disqualified, Warren, P. J., not participat-
ing.

12 Given this disposition, we find it unnecessary to consider the State’s
other enumerations of error.

18
LAND, Justice, concurring.
I concur fully in the majority opinion but write separately
to address an issue that I believe to be important as this litigation
proceeds. Specifically, the agreement at issue in this case does not
state that all execution proceedings for the affected inmates are
halted until the three conditions listed in the Agreement have
been satisfied. To the contrary, the Agreement simply places a
restriction on the Attorney General’s office with respect to its pur-
suit of execution orders from the district attorneys involved in
these cases. The Agreement places no restrictions on district at-
torneys and expressly recognizes “that the District Attorney
maintains the sole authority to obtain an execution warrant.”
Thus, while the Agreement unquestionably ties the Attorney
General’s hands when it comes to his office’s pursuit of execution
orders, it does not tie the district attorney’s hands at all. If the
district attorney wishes to obtain an execution order without the
blessing or request of the Attorney General, there is nothing in
the Agreement that prevents him or her from doing so. See
McLaughlin v. Payne, 295 Ga. 609, 612 (2014) (“Under our State
Constitution, ‘[i]t shall be the duty of the district attorney to rep-
resent the state in all criminal cases in the superior court of such
district attorney’s circuit[.]’ ”) (quoting Ga. Const. of 1983, Art. VI,
Sec. VIII, Par. I (d)).
I am authorized to state that Justice Ellington and Justice
LaGrua join in this concurrence.

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