Court filing

Appellants' Opening Brief — Donovan v. Biden (9th Cir.)

Filed October 24, 2022 in Donovan v. Biden; one of 5 filings from this case.

Record facts

Court	U.S. Court of Appeals for the Ninth Circuit
Filed	2022-10-24

Full text

No. 22-35474
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAVID G. DONOVAN, et al.

Plaintiffs-Appellants,
v.
JOSEPH R. BIDEN, et al.

Defendants-Appellees.

On Appeal from the United States District Court
for the Eastern District of Washington
No. 4:21-cv-05148-TOR
Hon. Thomas O. Rice

APPELLANTS’ OPENING BRIEF

Nathan J. Arnold
Arnold & Jacobowitz PLLC
2701 First Avenue, Suite 200
Seattle, WA 98121
(206) 799-4221
Nathan@CAJlawyers.com

Simon P Serrano
Silent Majority Foundation
5238 Outlet Dr
Pasco, WA 99301-8969
(509) 567-7083
pete@silentmajorityfoundation.org

Attorneys for Appellants
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TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................... ii
TABLE OF AUTHORITIES ................................................................................ iv
I.
INTRODUCTION ....................................................................................... 1
II.
JURISDICTIONAL STATEMENT ............................................................. 6
III.
ISSUES PRESENTED................................................................................. 6
IV.
STATUTORY AND REGULATORY AUTHORITIY ................................ 7
V.
STATEMENT OF THE CASE .................................................................... 7
VI.
SUMMARY OF THE ARGUMENT ..........................................................12
VII. STATEMENT OF FACTS .........................................................................13
VIII. STANDARD OF REVIEW ........................................................................14
IX.
ARGUMENT..............................................................................................16

A. This Case Remains Justiciable and Ripe. .....................................18

B. Plaintiffs have Standing to Challenge the Executive Orders…….21

C. Reversal and Remand are Appropriate…………………………..22
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iii

I. The President Exceeded the Scope of Authority………………….22
II. The District Court Erred in Concluding that the Executive Orders
Did Not Violate the Federal Property and Administrative Services
Act…………………………………………………………………...32
i.
The Eos Violate FPASA’ Section 101 and 121………..32
ii.
The Government Cannot Meet its Burden……………..35
III. The District Court Erred in Concluding that the Executive Orders
Did Not Violate the Administrative Procedure Act…………………37
IV. The Executive Orders Violate the Federal Procurement Policy...39
V. The EO’s Run Afoul of Federalism……………………………...40
VI. The EO’s Cannot Pass RFRA Scrutiny…………………………41
A. The Vaccine Mandate Does Not Achieve a Compelling
Government Interest as they Failed to Cease Transmission
of the Virus………………………………………………..46
B. The Government Has Not Employed the Least Restrictive
Means to Achieve the Proclaimed Interest in Contracting
Efficiency…………………….……………………………46
C. RFRA Has No Exhaustion Requirement………………….56
X.
CONCLUSION ..........................................................................................57

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TABLE OF AUTHORITIES
Cases
Am. Fed’n of Lab. & Cong. of Indus. Organization v. Kahn, 618 F.2d 784, 793
(D.C. Cir. 1979) ........................................................................ 25, 28, 32, 33
Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) .................... 30, 35, 40
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011) ........
.............................................................................................................. 14, 15
Arizona v. Arpaio, 821 F.3d 1098, 1103 (9th Cir. 2016) .......................................14
Ashcroft v. Iqbal, 556 U.S. 552 ............................................................................16
Associated Press v. Otter, 682 F.3d 821, 824 (9th Cir. 2012) ................................15
Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932) ........................34
Austin, et al. v. U.S. Navy Seals 1-26 et al., 142 S. CT. 1301 (2022) ...................... 5
Ayestas v. Davis, 138 S. Ct. 1080, 1093 (2018) .....................................................33
Bain v. Cal. Teachers Ass’n, 891 F.3d 1206, 1212 (9th Cir. 2018) .................. 15, 21
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ..........................................16
Benavidez v. Cty. of San Diego, 993 F.3d 1134 (9th Cir. 2021). ............................15
Biden v. Missouri, 654-55 (2022) .................................................................... 10, 11
Bond v. United States, 572 U.S. 844, 862 (2014) ............................................ 35, 40
Brnovich v. Biden, 562 F.Supp.3d 123, 152 (D.Ariz, 2022) .............. 2, 3, 10, 11, 30
BST Holdings, LLC v. OSHA, 17 F.4th 604 (4th Cir. 2021) ............................. 5, 9, 26
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 n.3, 726, 728 (2014) .........
.............................................................................................................. 41, 42
Chamber of Commerce of the United States v. Reich, 74 F.3d 1322, 1330 (D.C.
Cir. 1996 .....................................................................................................32
Chrysler Corp. v. Brown, 441 U.S. 281, 306, 99 S. Ct. 1705 (1979). .............. 24, 31
Col. Fin. Mgmt. Officer v. Austin, No. 8:22-CV-1275-SDM-TGW, 2022 WL
3643512 *14 (M.D. Fla. Aug. 18, 2022.......................................................42
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DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) ................. 37, 38
Dobbs v. Jackson Women's Health Org., No. 19-1392 (2022)2, ............................. 2
Edwards v. Marin Park, Inc. 356 F.3d 1058 (9th Cir. 2004) ..................................16
Elrod v. Burns., 427 U.S. 347, 373 (1976). ............................................................ 9
Eminence Cap., LLC v. Aspeon Inc., 316 F.3d 1048 (9th Cir. 2003). .....................16
Employment Division v. Smith, 494 U.S. 872 (1990) .............................................42
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160–61 (2000).........34
Feds for Medical Freedom v. Biden, 2022 WL 188329 (S.D. Tex. Jan. 21, 2022) ...
................................................................................................................ 9, 20
Flexible Lifeline Sys., Inc. v. Precision Lift, Inc.,654 F.3d 989, 993–94 (9th
Cir.2011).....................................................................................................14
Florida v. Nelson, 2021 WL 6108948, at *11–12 (M.D.Fla. Dec. 22, 2021) ...........
....................................................................................................................33
Franklin v. Massachusetts, 505 U.S. 788, 800–01; 28-29 (1992) .................... 38, 39
Georgia v. Biden, No: 21-14269, *27, 11th Circuit (August 26, 2022) .....................
...................................................................................... 11, 22, 23, 24, 29, 31
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430–
31 (2006) ........................................................................................ 42, 43, 55
Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir. 2008) ...........................................15
Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985), .............40
Holt v. Hobbs, 574 U.S. 352 (2015), .....................................................................41
Kentucky v. Biden, 23 F.4th 585, 609–10 (6th Cir. 2022). 9, 23, 26, 29, 30, 31, 34, 41
Louisiana v. Becerra, 2022 WL 16571 (W.D. La. Jan. 1, 2022) ............................10
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) ...............................21
Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012). ................................35
Microsoft Corp. Antitrust Litig., 355 F.3d 322, 327 (4th Cir. 2004) .......................33
Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661 (2022)............................... 9, 11
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Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 114
(2d Cir. 2018) .............................................................................................40
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068-69 (9th Cir. 2008) ... 43, 44
Nayab v. Capital One Bank (U.S.), 942 F.3d 480, 495-96 (9th Cir. 2019) ..............13
NFIB v. Dep’t of Labor, 142 S. Ct. 661, 665 (2022).................... 6, 9, 27, 29, 30, 35
Oklevueha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 838-
39 (9th Cir. 2012)................................................................................... 22, 55
Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) .....................................15
Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1123 (9th Cir. 2014) .................14
Sambrano v. United Airlines, Inc. (5th Cir. Feb. 17, 2022). ............................... 8, 21
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). .....................................20
Texas v. Becerra, 2021 WL 6198109 (N.D. Tex. Dec. 31, 2021) ............... 9, 10, 18,
U.S. Navy SEALs 1-26 v. Biden, No. 22-10077 (5th Cir. 2022) .......................... 5, 19
UAW-Labor Emp. and Training Corp. v. Chao, 325 F.3d 360, 366-67 (D.C. Cir.
2003) ..........................................................................................................28
United States v. Sterling, 75 M.J. 407, 410 (C.A.A.F. 2016), cert. denied, 137 S.
Ct. 2212 (2017) ...........................................................................................19
Vorcheimer v. Phila. Owners Ass’n, 903 F.3d 100, 105 (3d Cir. 2018) .................33
Webb v. Trader Joe's Co., 999 F.3d 1196 (9th Cir. 2021) ......................................16
West Virginia v. EPA, 142 S. Ct. 2587 (2022) ................................................. 29, 30
Zucht v. King, 260 U.S 174, 176 (1922). ...............................................................40
Statutes and Regulations
21 U.S.C. § 360bbb ...............................................................................................49
28 U.S.C. § 1292.................................................................................................... 6
40 U.S.C. § 101 .............................................................................. 3, 22, 23, 32, 33
40 U.S.C. § 121 .............................................................................................. 24, 34
41 U.S.C. § 1707..................................................................................... 4, 7, 35, 39
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vii

42 U.S.C. § 2000bb-1 ..................................................................................... 42, 43
42 U.S.C. § 2000bb-2 ...........................................................................................19
5 U.S.C. § 551 ................................................................................................ 37, 38
86 Fed. Reg. at 63,423 .................................................................................... 35, 39
86 Fed. Reg. at 63,424 ................................................................................ 4, 36, 40
EO 14042, Executive Order on Ensuring Adequate COVID Safety Protocols for
Federal Contractors .................... 4, 11, 17, 19, 25, 26, 27, 28, 33, 36, 37, 39
EO 14043, Executive Order Requiring Coronavirus Disease 2019 Vaccination for
Federal Employees ....................................................... 17, 19, 26, 33, 37, 39
Federal Property and Administrative Services Act of 1949 (Procurement Act) .......
............................................................................................................ 3, 6, 23
Other Authorities
Becerra, Xavier, Secretary of Health and Human Services, Determination that a
Public Health Emergency Exists. October 13, 2022. Available at
https://aspr.hhs.gov/legal/PHE/Pages/covid19-13Oct2022.aspx ..................18
Brownstone Insitute Report October, 2021. Available at
https://brownstone.org/articles/16-studies-on-vaccine-efficacy/ ..................47
Center for Disease Control: Data Tracker (updated September 7, 2022) Available
at https://covid.cdc.gov/covid-data-tracker/#variant-proportions.................51
CDC published report re: Barnstable County, MA, July, 2021. Available at
https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm ........................47
COVID-19 Vaccine Effectiveness Against the Omicron (B.1.1.529) Variant, 386
NEW ENG. J. MED. 1532, 1537 (2022) .....................................................51
DOE Hanford Document: HNF-67450, Rev. 3, September 2022: Hanford Site
COVID-19 Workplace Safety Plan for Federal Employees, at 2 ..................19
Effects of Previous Infection and Vaccination on Symptomatic Omicron Infections,
387 NEW ENG. J. MED. Available at
https://www.nejm.org/doi/pdf/10.1056/NEJMoa2203965 ..................... 50, 51
Fauci admits that COVID-19 vaccines do not protect ‘overly well’ against
infection, FOX NEWS (July 12, 2022), at
https://www.foxnews.com/media/fauci-admits-covid-19-vaccines-protect-
overly-well-infection ..................................................................................52
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viii

Jinyan Liu et al., Vaccines Elicit Highly Conserved Cellular Immunity to SARS-
CoV-2 Omicron, 603 NATURE 493, 495 (2022) ........................................51
Public Health Scotland, COVID-19 & Winter Statistical Report As At 31 January
2022, at 41 ..................................................................................................49
Renewal of Determination that a Public health Emergency Exists. Secretary Xavier
Becerra October 13, 2022. https://aspr.hhs.gov/legal/PHE/Pages/covid19-
13Oct2022.aspx. Last accessed: October 17, 2022. .....................................18
Statens Serum Institut, COVID-19 Rapport on omikronvarianten at 6, table 4 (Dec.
21, 2021), https://www.docdroid.com/C9UY7Ef/dk-serum-institut-rapport-
omikronvarianten-21122021-14tk-pdf. .......................................................48
UK Health Security Agency, COVID Vaccine Surveillance Report, Week 7,
February 17, 2022. Available at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/1055620/Vaccine_surveillance_report_-_week7.pdf.
....................................................................................................................49
Yinon M. Bar-On et al., Protection by a Fourth Dose of BNT162b2 Against
Omicron in Israel, 386 NEW ENG. J. MED. 1712 (Apr. ...........................51

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I.
INTRODUCTION
Prior to September 2021, the Federal Government has never, under the
Procurement Act or otherwise, mandated vaccination for a civilian population. Not
for smallpox, deadly for one-third of those infected, and eradicated by that vaccine;
not for the lifetime-crippling polio, nearly wiped out through vaccination; and not
for influenza, which causes billions of dollars of lost productivity every single year.
And through the summer of 2021, President Biden’s Administration still recognized
that vaccine mandates were “not the role of the federal government.”1
The Procurement Act itself has never been used to mandate any health-based
requirement, much less an irreversible emergency use authorization therapy. The
President cannot utilize the Procurement Act to compel “federal contractor
employees to refrain from consuming soda or eating fast food” by claiming obesity

1 Press Briefing by Press Secretary Jen Psaki, July 23. 2021. In response to the
question of whether “the federal government should step in and issue mandates,”
Secretary Psaki responded “that’s not the role of the federal government.”
Available at: https://www.whitehouse.gov/briefing-room/press-
briefings/2021/07/23/press-briefing-by-press-secretary-jen-psaki-july-23-2021/.
Last accessed: October 22, 2022.
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reduces productivity.2 The President cannot blacklist employees cited for a speeding
or seat belt ticket, because a hypothetical car accident could decrease productivity.
In the wake of Dobbs v. Jackson Women’s Health Org., the next administration
cannot bar federal contractor employees from seeking abortions because recovery
time might reduce productivity.3 And this administration could not, and cannot
today, in the name of productivity, while admitting its true purpose lies elsewhere,
mandate an irreversible medical procedure.
Prior to this case being dismissed under Fed. R. Civ. P. 12, by the Federal
District Court of Eastern Washington, the Federal District Court of Arizona, in a
case based upon substantially the same factual setting, and the same legal theories,
entered a fully opposite ruling.4 That court granted an injunction under Fed. R. Civ.
Pro. 65, since made permanent, correctly holding: “The Contractor Mandate exceeds
the scope of the President's authority under the Procurement Act.” Brnovich v. Biden,
562 F.Supp.3d 123, 167 (D. Ariz., 2022).

2 Brnovich v. Biden, 562 F.Supp.3d 123, 152 (D.Ariz., 2022)
3 Dobbs v. Jackson Women’s Health Org., No. 19-1392 (2022).
4 The Arizona court also citedfour parallel cases involving states' challenges to the
Contractor Mandate, from district courts in Kentucky, Georgia, Missouri and
Florida. Brnovich v. Biden, 562 F.Supp.3d 123, 137 (D.Ariz., 2022)
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As of the date of this Brief, the Contractor Mandate is enjoined in the
following states: Arizona, Arkansas, Florida, Iowa, Kentucky, Missouri, Montana,
Nebraska, New Hampshire, North Dakota, Ohio, South Dakota, Tennessee, and
Wyoming
Where the Arizona District Court, upon the same legal theories, and other
Circuit Courts, found substantially similar facts satisfied the stringent test for
injunction, it was error for the Eastern District of Washington to dismiss this case,
particularly without leave to amend, on the much lower standard of Fed. R. Civ. P.
12.
There are several, independent, fatal defects in the Lower Court’s ruling:
The President lacks the authority to issue EOs that mandate any vaccination
under the Procurement Act. As the Arizona court, other courts, have held, the Federal
Property and Administrative Services Act of 1949 (Procurement Act), 40 U.S.C. §
101 et seq. does not go anywhere near that far.
The Government failed to follow the necessary procedural steps to promulgate
its unauthorized mandate. As the District Court in Arizona (Brnovich v. Biden, 562
F. Supp. 3d 123 (D. Ariz. 2022)) held, the Office of Management Budget’s (“OMB”)
Federal Register Notice adopting the contracting elements of the mandates failed in
three respects:
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A. It did not provide analysis or evidence supporting the determination that
the mandates were necessary or proper Id. at 134, 151;
B. It was not subject to public comment Id. at 134; and
C. It failed to “claim that urgent and compelling circumstances [that] merited
forgoing the notice-and-comment procedures set forth in the Office of
Federal Procurement Policy Act (the ‘Procurement Policy Act’), 41 U.S.C.
§ 1707(d).”Id. at 134.
In the end, the Arizona District Court held that the Contractor Mandate, EO 14042,
violated the Procurement Act (Id., at 157), but that the revised OMB determination
did not violate the Procurement Policy Act as the accompanying Federal Register
Notice (issued nearly one month after the original solicitation) solicited comments
(86 Fed. Reg. at 63,424). Id. at 159.
In addition, the EOs, on their face, and in application, invade the Police
Powers of the several states. The health and safety of her citizens, generally, and
specially as it regards compulsory vaccination, has long been the province of the
sovereign States. The Procurement Act’s own text does not speak at all about the
health and safety of those citizens of these States united who performed services
fulfilling the contracts procured by the Federal Government. Indeed, that role, if it
can intrude upon the States at all, is delegated to OSHA, whose mandate has already
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been struck by our Supreme Court, despite being much more lenient than the
mandate at bar.
Independently, the EO’s violate the Religious Freedom Restoration Act
(“RFRA”), by failing to achieve an alleged compelling purpose by the “least
restrictive means” when burdening employees’ Free Exercise rights, by forcing them
to choose between their sincere religious beliefs and their livelihoods, their chosen
jobs.5 Most notably, despite the ever changing guidance from the CDC, the
Contractor Mandate is even more stringent than the mandate recently struck down
by the Supreme Court, which allowed for a masking and testing exception, and fully
excluded anyone working outside - a less restrictive means of achieving the

5 As the Fifth Circuit recently held, “Plaintiffs are ‘staring down even more than a
choice between their job(s) and their jab(s).’ By pitting their consciences against
their livelihoods, the vaccine requirements would crush Plaintiffs' free exercise of
religion.” U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336, 348 (5th Cir. 2022) (stay
granted) Austin, et al. v. U.S. Navy Seals 1-26 et al.,142 S.Ct. 1301 (2022) (granting
stay in part, denial in part; order of stay granted only insofar as it precludes the Navy
from considering respondents’ vaccination status in making deployment,
assignment, and other operational decisions) quoting BST Holdings, L.L.C. v. OSHA,
17 F.4th 604, 618 (5th Cir. 2021).
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expressed government purpose, which could, at least in theory, allow for
accommodation of sincere religious belief. NFIB v. Dep’t of Labor, 142 S. Ct. 661,
671 (2022). The unsustainable OSHA Mandate allowed for specific exemptions, not
allowed by the Contractor Mandate, which is an admission that the “least restrictive
means” were not employed in the mandates here.
II.
JURISDICTIONAL STATEMENT
The District Court had jurisdiction under 28 U.S.C. §1331 and 1343 and
entered an Order denying Plaintiff’s Motion for Declaratory Relief, Temporary
Restraining Order, and a Preliminary Injunction on December 17, 2021, and a
Dismissal of Plaintiff’s Complaint on May 12, 2022. Appellants filed this timely
appeal on June 9, 2022. This Court has jurisdiction under 28 U.S.C. § 1292(a)(1).
III.
ISSUES PRESENTED
1. Did the District Court err in holding that the Executive Orders are
authorized by the Federal Property and Administrative Services Act
(“FPASA” or “Procurement Act”), 40 U.S.C. §§ 101 and 121? Yes.
2.
Do the Executive Orders violate the Administrative Procedure Act by
serving as a rule or regulation requiring a notice and comment period and failing to
provide such an opportunity? Yes.
3.
Do the Executive Orders violate the Federal Procurement Policy, 41
U.S.C. § 1707(a), which mandate the issuance of, and adherence to the Safer Federal
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Workforce Task Force Guidance upon the Director of the Office of Management
Budget’s (“OMB”) approval of the Guidance without notice and comment without
sufficient justifications of “urgent and compelling” circumstances? Yes.
4.
Do the EO’s run afoul of Federalism? Yes.
5.
Do the EO’s fail the level of scrutiny demanded by the Religious
Freedom Restoration Act (“RFRA”)? Yes.
IV.
STATUTORY AND REGULATORY AUTHORITIES
All relevant statutory, constitutional, and regulatory authorities appear in the
Addendum to this brief.
V.
STATEMENT OF THE CASE
This appeal is taken from two orders issued in the District Court in and for the
Eastern District of Washington’s (“District Court”), case No.: Case No.: 4:21-cv-
05148-TOR. First, an Order Denying Plaintiffs’ Motion for Declaratory Relief,
Temporary Restraining Order, and a Permanent Injunction, issued on December 17,
2021. ER140 – ER159. Second, on May 12, 2022, the District Court granted
Appellees’ Motion to Dismiss Plaintiffs’ claims with prejudice. ER002-ER016.
Plaintiffs filed a Notice of Appeal on June 9, 2022.
ER002-ER016. The District Court erred by dismissing claims raised by 307
of the 314 Plaintiffs, concluding that the matter was not ripe as these Plaintiffs had
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suffered no harm while conceding that the seven remaining Plaintiffs who had been
placed on administrative leave without pay or terminated had stated a claim
sufficient for relief. Judge Rice’s decision on this issue aligns with current Fifth
Circuit case law that concludes that leave without pay is an adverse employment
action that injunctive relief can remedy. Sambrano v United Airlines, Inc. holding
that “that the district court erred as to the plaintiffs who remain on unpaid leave and
have brought Title VII actions. Plaintiffs are being subjected to ongoing coercion
based on their religious beliefs. That coercion is harmful in and of itself and cannot
be remedied after the fact.” Sambrano v. United Airlines, Inc., No. 21-11159, at *5-
6 (5th Cir. Feb. 17, 2022). ER-008. Among other things, all Plaintiffs except the
three who decided not to submit religious exemptions to the COVID-19 vaccine
requirements were sufficiently compelled to compromise their religious beliefs
based upon the threat of termination posed by the Contractor Mandate, to receive a
vaccine they believed abhorrent, a form of damage in and of itself. Their
constitutional right to religious freedom was abridged by those very real threats, and
they were thus damaged. As the United States Supreme Court has held, and this
Court’s sister Court in the Fifth Circuit recently affirmed, “the loss of constitutional
freedoms ‘for even minimal periods of time... unquestionably constitutes irreparable
injury.’” BST Holdings, LLC. V. OSHA, 17 F.4th 604, 618 (5th Cir. 2021) citing,
Elrod v. Burns, 427 U.S. 347, 373 (1976).
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As to the RFRA claims, Judge Rice erroneously concluded that “Plaintiffs
have failed to state a cognizable claim for violations of the RFRA.” Id. at 13.
These EOs have been widely litigated in multiple Circuits in actions based on
the same legal theories. Recently, the Sixth Circuit correctly concluded that the
President’s (and the U.S. Government’s) authority falls far short of the express
authorization needed to justify such “a significant encroachment into the lives—and
health—of a vast number of employees.” Kentucky v. Biden, 23 F.4th 585, 609–10
(6th Cir. 2022). See also: NFIB v. Dep’t of Labor, 142 S. Ct. 661, 665 (2022). The
Sixth Circuit enjoined the EOs, and it has not been alone in grating injunctive relief
from these and similar overreaching mandates.6 Less than a month ago, the Eleventh

6 See Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661 (2022) (“OSHA”) (staying
so-called ‘OSHA mandate,’ which was subsequently withdrawn by agency); Feds
for Medical Freedom v. Biden, 2022 WL 188329 (S.D. Tex. Jan. 21, 2022) (nation-
wide stay of federal employee vaccination mandate), vacated and remanded 30 F.4th
503 (5th Cir. Apr. 7, 2022), reh’g en banc granted and vacated, 2022 WL 2301458
(5th Cir. June 27, 2022) (reinstating nationwide stay); Texas v. Becerra, 2021 WL
6198109 (N.D. Tex. Dec. 31, 2021) & Louisiana v. Becerra, 2022 WL 16571 (W.D.
La. Jan. 1, 2022) (staying Head Start Mandate in 25 states). The Healthcare Mandate

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was stayed nationwide in Louisiana v. Becerra, 2021 WL 5609846 (W.D. La. Nov.
30, 2021), but that injunction was dissolved and the case remanded by the Supreme
Court in Biden v. Missouri, 654–55 (2022). The healthcare worker mandate is now
back before the district court to consider constitutional challenges not addressed in
the Supreme Court’s decision. As the Arizona court in Brnovich v. Biden, 562
F.Supp.3d 123, 154-55 (D.Ariz., 2022) stated, despite the government’s assertions,
that case, involving the Contractor Mandate (rather than the Healthcare Mandate)
was “clearly distinct from Biden v. Missouri, 142 S. Ct. 647, . . ..”
Likewise, this case is distinguishable from Biden v. Missouri as that case was
decided on very narrow facts, such as: (1) the challenged Rule was promulgated by
the Secretary of Health, not the US President; (2) the Secretary’s decision was based
on data “showing that the COVID–19 virus can spread rapidly among healthcare
workers and from them to patients, and that such spread is more likely when
healthcare workers are unvaccinated;” (3) the Secretary further justified the Rule due
to the implications of spreading COVID-19 to the elderly and poor in health (the
primary populations served by Medicare and Medicaid); and (4) the Secretary found
that “fear of exposure” due to unvaccinated staff could cause individuals to forego
non-emergency procedures compounding the impacts to the already short-staffed

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Circuit upheld (but limited in geographical scope) an injunction against
implementation of EO 14042.7 It is respectfully submitted that the above entitled
Court should follow the path carefully honed by the Arizona District Court, the
District Courts of other circuits, and by the Fifth, Sixth and Eleventh Circuits, and
by the Supreme Court in See Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661
(2022).8

medical industry. Id. For these reasons, and for the reasons discussed in Brnovich v.
Biden at 154-55, Biden v. Missouri is fully distinguishable from the case at bar.
7 Georgia v. Biden, 46 F.4th 1283, 1285(11th Cir., 2022).
8 If the legislation creating OSHA, which deals specifically with occupational
safety, did not provide sufficient authority for a vaccine mandate, then the
Procurement Act which is not at all focused on occupational safety, does not
provide any such authority.
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VI.
SUMMARY OF THE ARGUMENT
The District Court erred in dismissing the Plaintiff’s case under Fed. R. Civ.
Pro. 12. The Second Amended Complaint, ER026-ER120, asserts facts as to each
individual Plaintiff in detail. A vast number of the religious exemptions were
approved, but no accommodations were provided, thus creating an immediate
requirement for termination. By way of example only: (1) Plaintiff, Pamela
Hartsock, had received a Notice of Right to Sue letter from the EEOC, ¶332, (2)
Plaintiff, Thomas Krasner, was granted a religious exemption, but no
accommodation and was forced to early retirement, ¶171, and (3) Plaintiff, Gale
Lyon, was granted a religious exemption, and a temporary accommodation which
required weekly testing, at his personal expense.
Upon similar facts, and pleading the same theories, the plausibility of
Plaintiffs’ claims was established by their acceptance by, among others, the Arizona
District Court, which issued a permanent injunction covering that District. Where
one Court in this Circuit has found the legal theories posited by Plaintiffs, upon
similar facts, not only plausible, but ultimately correct, it was clear error for the
Eastern Washington District Court to dismiss this case.9
The EOs should have been enjoined, and/or the case should have survived the
Motion to Dismiss, or leave to amend should, at minimum, been granted, for several
independent reasons. The Procurement Act does not authorize the EOs; the
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implementation of the EOs violated the APA and the Federal Procurement Policy
[Procurement Policy Act] as the EOs and the associated OMB guidance failed to
provide adequate notice and an opportunity for public comment; the EOs violate the
FPASA as the EOs exceeded scope of the FPASA by seeking to control individual
health decisions; the EOs fun afoul of Federalism by, on its face, attempting to
supersede any contrary law within the State’s traditional Police Powers; the EOs run
afoul of RFRA by either employing means which do not achieve the express
compelling government purpose and/or by not employing least restrictive means to
do so.
VII. STATEMENT OF FACTS
Because this case was dismissed pursuant to Rule 12(b)(6), the facts relevant
to the dismissal are those set forth in the operative Complaint. ER026-ER120. The
District Court was obligated to consider those facts as true and correct,10 and made
no findings to the contrary. Accordingly, the Second Amended Complaint, ER026-
ER120, is here incorporated, as though fully set forth, as the Plaintiffs’ Statement of
Facts.

10 Nayab v. Capital One Bank (U.S.), 942 F.3d 480, 487 (9th Cir. 2019) citing
Eichenberger v. ESPN, Inc., 876 F.3d 979, 981 (9th Cir. 2017).
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VIII. STANDARD OF REVIEW
This Appeal is from two Orders from the lower court: a denial of injunctive
relief and the dismissal of all claims with prejudice. Regarding the District Court’s
denial of Appellants’ request for Injunctive Relief, “[a] district court’s decision
regarding preliminary injunctive relief is subject to ‘limited review’ on
appeal.” See Arizona v. Arpaio, 821 F.3d 1098, 1103 (9th Cir. 2016) Citing Flexible
Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 993–94 (9th Cir.2011). The
limited discretion allows this Court to set aside the lower court’s decision, if the
court “‘abused its discretion or based its decision on an erroneous legal standard or
on clearly erroneous findings of fact.’” Id. See also: Pom Wonderful LLC v.
Hubbard, 775 F.3d 1118, 1123 (9th Cir. 2014) citing Alliance for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). Thus, this Court’s standard of
review for a denial of a Preliminary Injunction is an erroneous legal or on a clearly
erroneous finding of fact, which will be reviewed de novo. Id.
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Prior to dismissal, the District Court abused its discretion in denying the
Plaintiffs’ request for Preliminary Injunction as it failed to apply the “correct legal
rule…to the relief requested” and the District Court’s misapplication of the standard
“was ... illogical, ... implausible, or ... without support in inferences that may be
drawn from the facts in the record.’” Associated Press v. Otter, 682 F.3d 821, 824
(9th Cir. 2012) citing: Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012).
Plaintiffs-Appellants’ burden was to “demonstrate a fair chance of success on the
merits, or questions serious enough to require litigation.” Guzman v. Shewry, 552
F.3d 941, 948 (9th Cir. 2008). “[A] stronger showing of one element may offset a
weaker showing of another.” Alliance for the Wild Rockies, 632 F.3d 1127, 1131
(9th Cir. 2011). Plaintiffs-Appellants met that burden and certainly met threshold
pleading standards to state a claim for relief under RFRA and that the challenged
EOs are not authorized by the Procurement Act, as several other courts have
correctly found.
This Court reviews the lower court’s decision on a Motion to Dismiss de novo
and applies the abuse of discretion standard. Benavidez v. Cty. of San Diego, 993
F.3d 1134, 1141–42 (9th Cir. 2021). “A motion under Rule 12(b)(6) should be
granted only if ‘it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief,’ construing the complaint in
the light most favorable to the plaintiff.” Bain v. Cal. Teachers Ass'n, 891 F.3d 1206,
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1211 (9th Cir. 2018) citing Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th
Cir. 2004).
Where the lower court dismisses a matter with prejudice and without leave to
amend, it must be “‘clear on de novo review that the complaint could not be saved
by amendment.’” Webb v. Trader Joe's Co., 999 F.3d 1196, 1204 (9th Cir. 2021)
citing Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per
curiam).
Thus, dismissal
is
improper
where
the
complaint
contains
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face,’” and where a “claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007).
IX.
ARGUMENT
The District Court erred in denying Appellants’ request for a Preliminary
Injunction and in Dismissing the case with Prejudice as Plaintiff-Appellants raised
sufficient allegations, supported by fact, to demonstrate that Defendant-Appellees
had engaged in the alleged conduct, acting outside the scope of their authority and
violating Plaintiffs’ rights, meeting the grant of injunctive relief. ER241.
On September 9, 2021, the President directed “[e]xecutive departments and
agencies” to include a clause in almost all new procurement contracts, contract
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extensions, and renewals, requiring the contractor (and subcontractors) to “comply
with all guidance … published by the” Safer Federal Workforce Task Force, for “the
duration of the contract.” EO 14042, §§ 2, 5. In issuing Executive Order 14043, the
President declared it “is necessary to require COVID-19 vaccination for all Federal
employees, subject to such exceptions as required by law.” EO 14043, § 1. The
President took the actions claiming authority under the Constitution and the laws of
the United States of America, including, specifically, the Procurement Act. See EO
14042, Introduction. Not surprisingly, the issuance of the challenged Executive
Orders occurred after President Biden stated he would take no action and after the
CDC confirmed that vaccinated persons can contract and transmit COVID-19, and
after the CDC recognized the prophylactic value of natural immunity, rendering the
Federal Government’s refusal to change course independently arbitrary and
capricious.11 These reasons alone suffice to overturn the District Court’s decision,
but they are not the lone reasons for so doing. The basis for this Court to overturn
the lower decision includes:
I. The Procurement Act does not authorize the EOs;
II. The implementation of the EOs violated the APA and the Federal
Procurement Policy Act;

11 See: Supra, FN 3.
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IV. The EOs violate the FPASA;
V. The EOs fun afoul of Federalism; and
VI. Standing in contrast to the more lenient OSHA mandate, already struck
by the Supreme Court, these EOs run afoul of RFRA.
Each reason alone provides the basis for this Court overturning the District Court’s
denial of Plaintiffs’ request for injunctive relief. Each should have survived
dismissal or, at minimum, leave to amend should have been granted.
A.
This Case Remains Justiciable and Ripe.
The challenged EOs remain in effect as does the COVID-19 Public Health
Emergency, which was renewed by Secretary of Health and Human Services, Xavier
Becerra on October 13, 2022.12 While the Department of Energy’s Hanford Site
leadership has placed a pause on the requirement “to provide proof of vaccination
status,” the guidance provides that it “may be revisited depending on court decisions
or future CDC guidance,” providing no assurances to the federal employee-plaintiffs

12 Renewal of Determination that a Public health Emergency Exists. Secretary
Xavier Becerra October 13, 2022. https://aspr.hhs.gov/legal/PHE/Pages/covid19-
13Oct2022.aspx. Last accessed: October 17, 2022.
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impacted by EO 14043.13 Notwithstanding the DOE Hanford Site guidance, the
Hanford contractors have not modified the guidance, and all 300 plus contractor-
Plaintiffs remain at risk of enforcement of EO 14042, leaving these plaintiffs in the
untenable position of requiring them to violate their religious rights in order to retain
employment. And several of the Plaintiffs have already been injured by enforcement
of the Contractor Mandate, and can be aided by an equitably crafted injunction,
which can include mandatory provisions.
As nearly all Plaintiffs sought religious exemptions from the COVID-19
vaccine, RFRA is a critical element to this case. Importantly, the Fifth Circuit
recently held that RFRA applies to all branches of the United States government,
including “every ‘branch, department, agency, instrumentality, and official (or other
person acting under color of law) of the United States[.]’ 42 U.S.C. § 2000bb-2(1).’”
U.S. Navy SEALs 1-26 v. Biden, 27 F.4th 336, 345-46 (5th Cir. 2022), quoting United
States v. Sterling, 75 M.J. 407, 410 (C.A.A.F. 2016), cert. denied, 137 S. Ct. 2212
(2017). The Court further held that “‘RFRA, in turn, sets the standards binding every
department of the United States to recognize and accommodate sincerely held
religious beliefs.’” Id. In this case, the failure of the United States Department of

13 DOE Hanford Document: HNF-67450, Rev. 3, September 2022: Hanford Site
COVID-19 Workplace Safety Plan for Federal Employees, at 2.
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Energy and its contractors “to recognize and accommodate sincerely held religious
beliefs” constitute a violation of RFRA by an “agency” (Department of Energy) and
an “instrumentality” (contractors) of the United States. Moreover, the continued
failure to accommodate religious beliefs leaves each plaintiff at risk of termination
or violation of an individual’s sincerely held religious belief.
Appellee-Defendants’ RFRA violations, as evidenced by the continued risk of
termination or religious violation, is the ripeness of this matter. To be ripe, the
threat a plaintiff faces must be “actual and imminent, not conjectural or
hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). As Judge
Brown in the Southern District of Texas held, “[t]he court does not have to
speculate as to what the outcome of the administrative process will be. Many
plaintiffs have not only declined to assert any exemption but have also submitted
affidavits swearing they will not. The court takes them at their word.” Feds for
Medical Freedom v. Biden, No. 3:21-cv-356 (N.D. Tx. Jan. 21, 2022). Here, the
court need not speculate what might happen to Plaintiffs, because many Plaintiffs’
religious accommodations were denied, and the few accommodations that were
granted were temporary in nature (60 days) and expired in March 2022. See ER34,
ER37, ER44, ER47, ER53, ER55, ER58, ER61, ER65, ER66, ER67, ER69, ER73,
ER74, ER76, ER87-ER88, ER90, ER 92.
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. Plaintiffs are forced to continue through the religious accommodation process as
some Plaintiffs were placed, on administrative leave without pay over one year
ago, and remain in that status. ER42, ER43, ER57. Leave without pay has recently
been held to violate individual religious rights. Sambrano v. United Airlines, Inc.,
No. 21-11159, at *5-6 (5th Cir. Feb. 17, 2022). It should also be noted that even if
the President were to rescind the EO’s, this appeal remains justiciable. [cite ‘flick
of a pen’ case].
B.
Plaintiffs have Standing to Challenge the Executive Orders.
Focusing solely on the RFRA aspect of this action lends to one logical
conclusion: all Plaintiffs who have sought and been denied a final religious
accommodation from the COVID-19 vaccine, or whose religious exemption has
expired, or who have not received a reasonable accommodation, have standing to
support their claims in this lawsuit; Plaintiffs also maintain standing through the
following ripe causes of action to challenge the EOs under RFRA, the Federal
Procurement Act, and the Administrative Procedures Act.
Plaintiffs’ standing is demonstrable through their individualized showing of
an actual or imminent injury-in-fact that is traceable to Appellee-Defendants’
conduct, which this Court can redress through a favorable ruling. Bain v. Cal.
Teachers Ass’n, 891 F.3d 1206, 1212 (9th Cir. 2018) Citing Lujan v. Defenders of
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Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Here,
Plaintiffs “are suffering ‘immediate or threatened injury as a result of the challenged
action of the sort that would make out a justiciable case,’” as Plaintiffs’ religious
rights and employment continue to be pitted against one another. Oklevueha Native
American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 839 (9th Cir. 2012).
Moreover, the United States government continues to require the COVID-19
vaccine, which was mandated outside of the President’s authority as the EOs are not
authorized by the Procurement Act. Each claim grants standing to Plaintiff-
Appellants in this matter.
C.
Reversal and Remand are Appropriate.
I. THE PRESIDENT EXCEEDED THE SCOPE OF AUTHORITY
OUTLINED IN THE PROCUREMENT ACT OF 1949.
“[T]he Procurement Act is all about—creating an “economical and efficient
system” for federal contracting. 40 U.S.C. § 101. That is worlds away from
conferring general authority for every agency to insert a term in every solicitation
and every contract establishing health standards for contractors’ employees.”
Georgia v. Biden, 46 F.4th 1283, 1296 (11th Cir. 2022). That Court subsequently
concluded that “no statutory provision contemplates the power to implement an
across-the-board vaccination mandate. It follows that the President likely exceeded
his authority under the Procurement Act when directing executive agencies to
enforce such a mandate.” Id. at 21.
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Congress enacted the Federal Property and Administrative Services Act of
1949, 40 U.S.C. § 101 et seq.—known as the Procurement Act—with the aim of
“provid[ing] the Federal Government with an economical and efficient system” for
“[p]rocuring and supplying property and nonpersonal services and performing
related functions including contracting.” Id. § 101. The Act empowers the President
to “prescribe policies and directives that the President considers necessary to carry
out this subtitle. The policies must be consistent with this subtitle.” Id. § 121(a).14
The text of the Procurement Act is clear: the President can direct internal
government policies to provide the “Federal Government” a more efficient “system
for” contracting. 40 U.S.C. §§101, 121. It says nothing about authority to impose
forced vaccinations (or other medical procedures) on employees of private,
contracting entities in an effort to make them supposedly more efficient. For this
reason, the Sixth and Eleventh Circuits have held the Contractor Mandate invalid.
Kentucky, 23 F.4th at 605; Georgia, 46 F.4th at 1295. The Eleventh Circuit further
held that the “delegation to carry out those provisions does not grant the President
free-wheeling authority to issue any order he wishes relating to the federal
government’s procurement system. What he can lawfully carry out under § 121(a)
are the provisions in a specified part of the U.S. Code.” Id., at *12. The Court then

14 Emphasis added.
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noted that the President’s authority is limited by four words: “consistent with this
subtitle,” calling these four words out as “explicit legislative policies” and “cabining
the President’s authority.” Id. at 13. The Eleventh Circuit further held that “[a]
presidential directive can stand only if those subordinate officials have the statutory
authority that they are told to exercise” and that both the President and the
subordinate agencies lacked such authority. Id. at 15.
In sum, the Procurement Act gives the President the authority to direct
subordinate executive actors as they carry out its specific provisions; directing them
to go beyond the statute’s boundaries would neither “carry out” the Act nor be
‘consistent with’ it. 40 U.S.C. § 121(a). A presidential directive can stand only if
those subordinate officials have the statutory authority that they are told to exercise.
Georgia v. Biden, at 15. The Eleventh Circuit, in noting these limitations, relied on
“The ‘pertinent inquiry’” the Court explained, was whether the agency action was
‘reasonably within the contemplation’ of any ‘statutory grants of authority’ relied on
by the regulating agency.” Id. at * 16 citing Chrysler Corp. v. Brown, 441 U.S. 281,
306, 99 S. Ct. 1705 (1979). 306 (emphasis omitted).
Nothing in the Act contemplates that every executive agency can base every
procurement decision on the health of the contracting workforce. Instead, the
statutory scheme establishes a framework through which agencies can articulate
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specific, output-related standards to ensure that acquisitions have the features they
want. Id. at * 17.
“In short, the President’s authority to issue Executive Order 14042, and
executive agencies’ authority to implement it, depend on whether Congress
delegated the power to require widespread vaccination through the Procurement Act.
All signs suggest that Congress has retained this power rather than passing it on.
Agencies’ bare authority to set contract specifications and terms is not enough to
show that when Congress passed the Procurement Act it contemplated the general
power to mandate vaccination.” Id. at * 30.
Since the passage of the Procurement Act in 1949, the President has enjoyed
a considerable degree of deference over decisions to improve the “economy and
efficiency” of federal contracting. But the contractor mandate moves far beyond
previous Procurement Act cases and now ventures into regulating healthcare for
approximately one-fifth of the U.S. workforce. The mandates, with their far-
reaching implications, lack a sufficient nexus with improvement of economy and
efficiency in federal contracting. The district court’s denial of the preliminary
injunction should be overturned for multiple reasons.
Even when such deference is afforded, even the D.C. Circuit recognizes that
the President does not have a “blank check” and can impose procurement policies
only if they have a “close nexus” to “likely savings to the Government.” Khan, 618
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F.2d at 792-93. But, the EOs have little to do with efficiency, nor was it the real goal
of this “work-around” to mandate vaccines for as many Americans as possible. BST
Holdings, LLC v. OSHA, 17 F.4th 604, 612 (5th Cir. 2021). The Administration’s
“own documents confirm” as much: it is “naked pretext to invade traditional state
prerogatives.” Kentucky, 23 F.4th at 609 & n.15.
The text of the Procurement Act does not support the exercise of authority
contained in Executive Order 14042. Second, the contractor mandate is not
reasonably related to the Procurement Act’s goals of an economic and efficient
system for procurement. The connection between the mandate and economy and
efficiency is not a sufficient nexus to justify the regulation. Third, the contractor
mandate goes beyond even previous extensions of presidential authority under the
Procurement Act. Previous cases have read the President’s authority broadly, but
even those cases could demonstrate a more direct link between the order at issue and
efficient operations related to procurement.
The challenged EOs inherently regulate public health that secondarily impact
economic conditions; this is clear from a plain reading of the EOs. Section 1 of EO
14043 reads in part:
It is the policy of my Administration to halt the spread of coronavirus
disease 2019 (COVID–19), including the B.1.617.2 (Delta) variant, by
relying on the best available data and science-based public health
measures. The Delta variant, currently the predominant variant of the
virus in the United States, is highly contagious and has led to a rapid
rise in cases and hospitalizations…The Centers for Disease Control and
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Prevention (CDC) within the Department of Health and Human
Services has determined that the best way to slow the spread of
COVID–19 and to prevent infection by the Delta variant or other
variants is to be vaccinated…

…I have determined that ensuring the health and safety of the Federal
workforce and the efficiency of the civil service requires immediate
action to protect the Federal workforce and individuals interacting with
the Federal workforce. It is essential that Federal employees take all
available steps to protect themselves and avoid spreading COVID–19
to their co-workers and members of the public. The CDC has found that
the best way to do so is to be vaccinated.

This reads like an OSHA regulation, and the Supreme Court has now told us that
OSHA does not have authority to issue such a mandate. NFIB v. Dep’t of Labor,
142 S. Ct. 661, 671 (2022).
EO 14042, Executive Order on Ensuring Adequate COVID Safety Protocols
for Federal Contractors, fares no better in this regard as it attempts to cloak itself
in the Procurement Act by invoking the act.
This order promotes economy and efficiency in Federal procurement
by ensuring that the parties that contract with the Federal Government
provide adequate COVID-19 safeguards to their workers performing on
or in connection with a Federal Government contract or contract-like
instrument as described in section 5(a) of this order. These safeguards
will decrease the spread of COVID-19, which will decrease worker
absence, reduce labor costs, and improve the efficiency of contractors
and subcontractors at sites where they are performing work for the
Federal Government.
While veiling itself as promoting “economy and efficiency in Federal
procurement,” the EO quickly moves to “ensuring” that Contractors provide
“adequate COVID-19 safeguards to their workers.” The EO then fully
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displays its motives: “These safeguards will decrease the spread of COVID-
19.” Under these circumstances, EO 14042 is clearly not a tool that inherently
promotes economic efficiency.
At the lower court Defendants argued that “[c]ourts find a nexus even
when ‘[t]he link may seem attenuated” and even if one can “advance an
argument claiming opposite effects or no effects at all.’” ER181. UAW-Labor
Emp. and Training Corp. v. Chao, 325 F.3d 360, 366-67 (D.C. Cir. 2003)
(quoting Kahn, 618 F.2d at 789). Defendants then noted that EO 14042 is
“concerned with protecting the federal government’s financial and operational
interests as a contracting party Ensuring that its contractors do not suffer major
disruptions from COVID-19 accomplishes just that.” Id. Defendants then
proclaimed that “[t]o anyone who has lived through the COVID-19 pandemic
and its resulting economic turmoil, the nexus between reducing the spread of
COVID-19 and economic efficiency should be self-evident.” Id. at 19-20.
Finally, Defendants concluded, after noting that six -foot distancing is not
always available for workers on the Hanford Site, that a “fully vaccinated
workforce will reduce these burdens on Hanford’s mission” and summarily
concluded that “the Executive Order’s explanation is sufficient to show the
required nexus between the policy and promoting economy and efficiency.”
Id. at 21.
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Appellees’ statements demonstrate the Government’s position: comply as it’s
self-evident that COVID-19 is a compelling interest and that the vaccine mandate
was narrowly tailored; no more explanation or supporting evidence is provided.
These conclusory statements miss the mark of legitimate justification of finding
themselves “consistent with” the Procurement Act and leave Appellees’ short of
legal or logical justification demonstrating the District Court’s error in not granting
Plaintiff-Appellants’ injunction.
And the President cannot expand the breadth of his authority in the face of
non-delegation principals, and particularly the Major Questions Doctrine.
Defendants “must point to ‘clear congressional authorization’ for the power [that
Defendants] claim[].” West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (citation
omitted).
Such clear authorization is lacking here and the Sixth and Eleventh Circuits
have held that the Procurement Act authority question here is a major question.
Kentucky, 23 F.4th at 606-08; Georgia, 46 F.4th at 1295-96.

Likewise, the Supreme Court has already held explicitly that the authority to
issue the OSHA workplace mandate was a major question because it “ordered 84
million Americans to either obtain a COVID-19 vaccine or undergo weekly medical
testing at their own expense.” NFIB, 142 S. Ct. at 665. That was so as it was “a
significant encroachment into the lives—and health—of a vast number of
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employees,” and thus constituted an “‘exercise [of] powers of vast economic and
political significance.’” Id. (quoting Alabama Realtors, 142 S. Ct. at 2489).
Defendants cannot credibly distinguish this mandate from the OSHA mandate
because it impacts only 33 million workers. Notably, the mandate here is more
intrusive than the OSHA mandate, which allowed for masking and testing – and the
OSHA mandate had some precedent upon which to rely (see, e.g., West Virginia,
142 S. Ct. at 2608 (quoting Utility Air, 573 U.S. at 324)). The Government has no
precedent under the Procurement Act to so rely.

These EOs clearly trigger a major question analysis. First, this case involves
“a matter of great ‘political significance.’” West Virginia, 142 S. Ct. at 2620
(Gorsuch, J., concurring) (quoting NFIB, 142 S. Ct. at 665). Second, these EOs
“seek[] to regulate ‘a significant portion of the American economy.’” West Virginia,
142 S. Ct. at 2621 (Gorsuch, J., concurring) (quoting majority opinion, quoting
Utility Air, 573 U.S. at 324). Third, it invades traditional state authority, discussed
in-depth below. Fourth, the EOs lack any limiting principal. Under the
Government’s theory it could use the Procurement Act to “mandate that covered
employees also wear masks in perpetuity” at “family gatherings, concerts, sporting
events, and so on” (Kentucky, 23 F.4th at 608) or “refrain from consuming soda or
eating fast food.” Brnovich 562 F.Supp.3d at 152.
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In Chrysler Corp. v. Brown, the Supreme Court “suggested that the
President’s authority [under the Procurement Act] should be based on a ‘specific
reference’ within the Act.” Georgia, 46 F.4th at 1294 (quoting Chrysler Corp., 441
U.S. at 304 n.34). More recently, this Court’s sister circuits have held that the best
reading of the Procurement Act’s plain text is that it grants authority only for the
President “to implement systems making the government’s entry into contracts less
duplicative and inefficient,” but does not provide authority to regulate federal
contractors to “enhance their personal productivity” (Kentucky, 23 F.4th at 605-06)
and ““[n]othing in the Act contemplates that every executive agency can base every
procurement decision on the health of the contracting workforce… Instead, the
statutory scheme establishes a framework through which agencies can articulate
specific, output-related standards to ensure that acquisitions have the features they
want” (Georgia, 46 F.4th at 1295).

The OSH Act speaks explicitly to workers’ health and safety, but that more
lenient mandate was stricken down by the Supreme Court. By contrast, the text of
the Procurement Act makes no mention of worker health and cannot support the
more stringent Contractor Mandate.
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II. THE DISTRICT COURT ERRED IN CONCLUDING THAT THE
EXECUTIVE ORDERS DID NOT VIOLATE THE FEDERAL PROPERTY
AND ADMINISTRATIVE SERVICES ACT (“FPASA”).
FAPASA’s purpose is to provide the Federal Government with an
“economical and efficient system” for, among other things, procuring and supplying
property and nonpersonal services. 40 U.S.C. § 101. The Executive Orders, however,
have actually and materially undermined the efficient and economical delivery of
property and services by disrupting the continuity of the federal and federal-
contractor workforce, and rendering federally operated nuclear facilities unsafe by
leaving these individuals in a position where their jobs may be taken at any moment
on a political whim, notwithstanding their religious objection to and employer-
granted religious exemption from the COVID-19 vaccine mandate.
i.
The EOs Violate FPASA’s Section 101 and 121
as they Lack a Nexus to Government
Contracting Efficiency.
While the FPASA “vest[s] broad discretion in the President” it does not
provide the President with “a blank check to fill at his will.” Chamber of Commerce
of the United States v. Reich, 74 F.3d 1322, 1330 (D.C. Cir. 1996) quoting AFL-CIO
v. Kahn, 618 F.2d 784, 793 (D.C. Cir. 1979) (en banc). “The procurement power
must be exercised consistently with the structure and purposes of the statute that
delegates that power.” Id. at 1330-31. The FPASA empowers the President to
“prescribe policies and directives that [he] considers necessary to carry out [the
FPASA.]” 4 U.S.C. § 121(a). Those policies “must be consistent with” the FPASA’s
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purpose, i.e., promoting economy and efficiency in federal contracting. Id. § 121(a)
(emphasis added). Accordingly, the President must demonstrate a “nexus” between
the Executive Orders and the FPASA’s purpose of promoting an “economical and
efficient system” for federal contracting. 40 U.S.C. § 101; see Am. Fed’n of Lab. &
Cong. of Indus. Organizations v. Kahn, 618 F.2d 784, 793 (D.C. Cir. 1979)
(explaining that the FPASA is violated when the President does not demonstrate a
“nexus” between executive action and the FPASA’s policy). The FPASA’s text
obligates the President to exercise his statutory authority “consistently with [the
Act’s] structure and purposes,” and he failed to do so with EOs 14042 and 14043 Id.
Further, the President’s power under § 121(a) is limited to what is “necessary”
to carry out FPASA. “Necessary” is a “word of limitation” and is often synonymous
with “required,” “indispensable,” and “essential.” Vorcheimer v. Phila. Owners
Ass’n, 903 F.3d 100, 105 (3d Cir. 2018) (quotations omitted); accord In re Microsoft
Corp. Antitrust Litig., 355 F.3d 322, 327 (4th Cir. 2004). Rather than explaining why
a vaccine mandate is required, indispensable, or essential to carrying out FPASA,
the government offers only a “threadbare and conclusory rationalization.” Florida v.
Nelson, 2021 WL 6108948, at *11–12 (M.D.Fla. Dec. 22, 2021).
While the term “necessary” is sometimes given a broader reading, see Ayestas
v. Davis, 138 S. Ct. 1080, 1093 (2018), Congress did not use that word in a broad
sense in § 121. In that section, Congress imposed a mandatory duty on the GSA
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Administrator to issue regulations that are “necessary” but gave him discretion as to
other regulations. 40 U.S.C. § 121(c)(1)–(2) (using “may” in (1) and “shall” in (2)).
Congress thus used “necessary” to designate those regulations that GSA must issue.
Interpreting “necessary” to mean “simply useful” would read that distinction out of
the statute. See In re MCP No. 165, 21 F. 4th 357, 392 (6th Cir. 2021) (Larsen, J.,
dissenting) (quotations omitted). The word “necessary” in § 121(a)—appearing in
an identical phrase—should be given the same limited meaning. See Atl. Cleaners
& Dyers v. United States, 286 U.S. 427, 433 (1932) (“[T]here is a natural
presumption that identical words used in different parts of the same act are intended
to have the same meaning.”).
Neither § 101 nor § 121 even plausibly support the government’s mandate on
their plain text. This is especially true as the government “deploy[s] [FPASA] to
mandate a medical procedure for one-fifth (or more) of our workforce,” a
considerable segment of the economy that can be detrimentally placing all of those
workers in a position to violate their religious rights in the furtherance of continued
employment. Kentucky, supra, at 607–08. Congress does not delegate decisions of
major economic and social significance “in so cryptic a fashion.” FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 160–61 (2000). And “[i]f administrative
agencies seek to regulate the daily lives and liberties of millions of Americans, . . .
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they must at least be able to trace that power to a clear grant of authority from
Congress.” NFIB, supra, at 668 (Gorsuch, J., concurring).
Moreover, regulation of vaccination is “a matter traditionally committed to
the state.” Nelson, 2021 WL 6108948, at *13. The government cannot overcome the
presumption that Congress “preserves the constitutional balance between the
National Government and the States,” Bond v. United States, 572 U.S. 844, 862
(2014), because Congress must “enact exceedingly clear language if it wishes to
significantly alter the balance between federal and state power,” Ala. Ass’n of
Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021). For these reasons, neither § 101 nor
§ 121 authorize the Executive Order.
ii.
The Government Cannot Meet its Burden to
Demonstrate that it Did Not violate FPASA
Section 1707.
Because § 1707 applies, the government must rely on the “urgent and
compelling circumstances” exception in § 1707(d). See 86 Fed. Reg. at 63,423
(making such a finding in the alternative). The government cannot satisfy that
exception, which is more demanding than the APA’s “good cause” exception, itself
an exacting standard. Compare 41 U.S.C. § 1707(d), with 5 U.S.C. § 553(b)(3)(B).
See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012). The government
has not made that showing, as its procurement efficiency rationale is “merely a
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hastily manufactured but unproven hypothesis about recent history and a contrived
speculation about the future,” which does not justify “summary disregard of the
requirements of administrative law and rulemaking.” Nelson, 2021 WL 6108948, at
*12. This statement rings especially true with the requirements of EO 14042, which
created the Safer Federal Workforce Task Force (“Task Force”) and the Task Force’s
Guidance (“Guidance”), subject to OMB Director approval. EO 14042, which was
signed September 9, 2021, required the publication of the Guidance by September
24, 2021. EO 14042, Sec. 2(b). EO 14042 also required that the Federal Acquisition
Regulatory Council amend the Federal Acquisition Regulations by October 8, 2021.
EO 14042, Sec. 3.
Additionally, the government’s own delay in adopting the EO and the
regulation betrays any claimed urgency. If OMB had simply complied with § 1707
when it issued its first order on September 28, 2021, it could have completed the 60-
day notice and comment period well before its vaccination deadline of January 18,
2022. See 86 Fed. Reg. at 63,424. The government’s delay— caused by its own
mistakes—cannot itself create the circumstances justifying good cause. See Nat. Res.
Def. Council v. NHTSA, 894 F.3d 95, 114 (2d Cir. 2018). The Government did not
comply with § 1707 and cannot justify a departure from that statute. Thus, the OMB
determination, the key predicate for the mandate’s operation, is invalid and the
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Government failed to comply with § 1707 and the District Court erred in concluding
that the Government complied with § 1707.
III.THE DISTRICT COURT ERRED IN CONCLUDING THAT THE
EXECUTIVE ORDERS DID NOT VIOLATE THE ADMINISTRATIVE
PROCEDURE ACT.
The Eleventh Circuit concluded that the challenged EOs exceeded the APA,
holding that “[a] presidential directive can stand only if those subordinate officials
have the statutory authority that they are told to exercise” as the President and the
subordinate agencies lacked authority to issue such a directive. Id. at 15. While the
President’s issuance of an EO is exempt from the APA, there is no basis for
extending that Presidential exemption to his delegees as the APA applies to “each
authority of the [g]overnment of the United States,” 5 U.S.C. § 551 (defining
“agency”), and restricts “agency action,” id. § 706. When agency officials act
pursuant to a presidential delegation, as was done here through the Department of
Energy’s implementation of EOs 14042 and 14043, they are unquestionably taking
“agency action.”
Moreover, even if the APA were silent on whether agency action is subject to
review—and it is not—any such silence would yield the opposite result as applied
to an agency given the APA’s “basic presumption of judicial review for one suffering
legal wrong because of agency action.” See DHS v. Regents of the Univ. of Cal., 140
S. Ct. 1891, 1905 (2020) (quotations omitted). Just as agencies cannot invoke
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Congress’s express APA exemption when exercising delegations from Congress, so,
too, they cannot invoke the President’s implied exemption. See Franklin v.
Massachusetts, 505 U.S. 788, 828–29 (1992) (Scalia, J., concurring in part and
concurring in the judgment) (explaining that “[r]eview of the legality of Presidential
action” can be obtained in the same manner as review of “unlawful legislative
action,” by suing the “agents who carry” it out). Thus, it is proper for this Court to
review the President and the Department of Energy’s challenged actions in this
matter.
The APA applies to “each authority of the [g]overnment of the United States,”
5 U.S.C. § 551 (defining “agency”), and restricts “agency action,” Id. § 706. When
agency officials act pursuant to a presidential delegation, they are unquestionably
taking “agency action.” Moreover, unlike, for example, Congress, see Id. §
701(b)(1)(A), the President’s APA exemption is found nowhere in the text of the
APA, see Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992) (“[T]extual
silence is not enough to subject the President to the provisions of the APA.”). But
even if the APA were silent on whether agency action is subject to review—and it is
not—any such silence would yield the opposite result as applied to an agency given
the APA’s “basic presumption of judicial review for one suffering legal wrong
because of agency action.” See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891,
1905 (2020) (quotations omitted). Just as agencies cannot invoke Congress’s express
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APA exemption when exercising delegations from Congress, so too they cannot
invoke the President’s implied exemption. See Franklin, 505 U.S. at 828–29 (Scalia,
J., concurring in part and concurring in the judgment) (explaining that “[r]eview of
the legality of Presidential action” can be obtained in the same manner as review of
“unlawful legislative action,” by suing the “agents who carry” it out).
IV.THE EXECUTIVE ORDERS VIOLATE THE FEDERAL
PROCUREMENT POLICY, 41 U.S.C. § 1707(A).
The Federal Procurement Policy statute requires “procurement polic[ies],
regulation[s], procedure[s], or form[s]” to go through notice and comment, so long
as they “relate[] to the expenditure of appropriated funds” and either have “a
significant effect beyond the internal operating procedures of” the issuing agency or
“a significant cost or administrative impact on contractors or offerors.” 41 U.S.C. §
1707(a)–(b). ER104-105. The OMB determination implementing EOs 14042 and
14043 was published without those procedures in defiance of this statutory
requirement.
Section 1707 applies due to its significant administrative effect on contractors;
thus, the government must rely on the “urgent and compelling circumstances”
exception in § 1707(d). See 86 Fed. Reg. at 63,423 (making such a finding in the
alternative). The government cannot satisfy that exception as the government
delayed the adoption of the EOs, dampening its proclaimed urgency. If OMB had
simply complied with § 1707 when it issued its first order on September 28, 2021, it
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could have completed the 60-day notice and comment period well before its
vaccination deadline of January 18, 2022. See 86 Fed. Reg. at 63,424. The
government’s delay—especially when caused by the government’s own mistakes—
cannot itself create the circumstances justifying good cause. See Nat. Res. Def.
Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 114 (2d Cir. 2018).
V.THE EO’S RUN AFOUL OF FEDERALISM
The President’s new-found use of the Procurement Act invades traditional
concepts of Federalism. There can be no question on this point where the EO
expressly claims to “supercede[] any contrary State or local law.”
When the President invokes authority that would “significantly alter the
balance between federal and state power,” Congress must authorize that change with
“exceedingly clear language.” Alabama Realtors, 141 S. Ct. at 2489 (citation
omitted). A federal statute to “intrude[] on the police power of the States” only when
clearly authorized by Congress. Bond v. United States, 572 U.S. 844, 859-60 (2014).
“It is a traditional exercise of the States’ police powers to protect the health
and safety of their citizens.” Hill v. Colorado, 530 U.S. 703, 715 (2000) (citation
omitted). That includes “compulsory vaccination.” Zucht v. King, 260 U.S 174, 176
(1922). Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 719 (1985)
(“[T]he regulation of health and safety matters is primarily, and historically, a matter
of local concern.”); Compulsory vaccination policy is a traditional realm of state
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authority, which the Contractor Mandate manifestly intrudes upon: the “contractor
mandate seeks to ... transfer[] this traditional prerogative from the states to the
federal government.” Kentucky, 23 F.4th at 609 (emphasis added). While the “States
may have no power to dictate what and how much of something the federal
government may buy … they certainly have a traditional interest in regulating public
health and, specifically, in determining whether to impose compulsory vaccination
on the public at large.” Id. at 610.15
Here, the President cannot invade the province of the States and the District
Court should not have dismissed Plaintiffs’ cause of action based upon this bedrock
principal.
VI. THE EO’S CANNOT PASS RFRA SCRUTINY.
“RFRA did more than merely restore the balancing test used in the Sherbert
line of cases; it provided even broader protection for religious liberty than was
available under those decisions.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682,
693 n.3 (2014); accord Holt v. Hobbs, 574 U.S. 352, 357 (2015) (RFRA “provide[s]
greater protection for religious exercise than is available under the First

15 Of course, the State’s too, may only do so without violating their Constitutions
and the Federal Constitution, but that is a matter for another day.
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Amendment.”) RFRA restored this order through “requir[ing] the Government to
demonstrate that the compelling interest test is satisfied through application of the
challenged law ‘to the person’ —the particular claimant whose sincere exercise of
religion is being substantially burdened.” Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 430–31 (2006) (quoting 42 U.S.C. § 2000bb-1);
Hobby Lobby, 573 U.S. at 726. “The least-restrictive means standard is exceptionally
demanding...” Hobby Lobby, 573 U.S. at 728.
Defendants expect to meet this “exceptionally demanding” test by merely
“accepting[ing] the merits of [the] exemption” while denying reasonable
accommodations in boilerplate denials. ER234-ER237; ER210-ER214; ER203. ]
The law requires more than than lip service; it requires the Government to apply the
appropriate legal standard, which did not occur here.
RFRA was enacted with “singularly bi-partisan support” at a time when one
party controlled the Presidency and both Houses of Congress for the express purpose
of restoring “the protection for Free Exercise suddenly eroded by the Supreme
Court.” Col. Fin. Mgmt. Officer v. Austin, No. 8:22-CV-1275-SDM-TGW, 2022 WL
3643512 *14 (M.D. Fla. Aug. 18, 2022)) (“CMFO”) citing Employment Division v.
Smith, 494 U.S. 872 (1990). “By enacting RFRA, Congress exercised this plenary
authority to guarantee the “‘broad protection for religious liberty.’” CMFO, at *15
quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706 (2014). “To ensure
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comprehensive protection of Free Exercise,” RFRA allows “[a] person whose
religious exercise has been burdened in violation of this section” to “assert that
violation as a claim or defense in a judicial proceeding and obtain appropriate relief
against a government.” Id., at *14, see also: 42 U.S.C. § 2000bb-1(c). As such,
“RFRA warrants heightened and focused attention and diligent compliance by the
government, including the military, and discerning enforcement by the courts.” Id.
To prevail on a RFRA claim, Appellants must demonstrate two elements.
First, Appellants must demonstrate that the activities burdened by the government
action are an “exercise of religion.” Navajo Nation v. U.S. Forest Serv., 535 F.3d
1058, 1068 (9th Cir. 2008). Second, the government action must “substantially
burden” Appellants’ exercise of religion. Id. Once those elements are demonstrated,
the burden shifts to the government to prove that the challenged action is in
furtherance of a “compelling government interest” and is implemented by “the least
restrictive means to achieve its purpose, unless the plaintiff first proves the
government action substantially burdens his exercise of religion.” Id. at 1069. As the
United States Supreme Court has held, “RFRA requires the Government to
demonstrate that the compelling interest test is satisfied through application of the
challenged law ‘to the person’—the particular claimant whose sincere exercise of
religion is being substantially burdened.” Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 430–31 (2006). That requires courts “to look to the
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marginal interest” in enforcing the government mandate in similar cases. Hobby
Lobby Stores, 573 U.S. at 727. Wholly independent of whether or not the President
has authority to issue the EO’s, they also violate RFRA.
RFRA protects “the individual from a forced choice between a government
benefit and the individual’s religion.” Navajo Nation v. U.S. Forest Serv., 535 F.3d
1058, 1069 (9th Cir. 2008). In Navajo Nation, Appellants challenged the United
States Forest Services’ application of recycled wastewater to a small portion (one
percent of the mountain’s entire area) of a sacred mountain to create artificial snow,
claiming that the application violated RFRA. Id. The Court held that the lack of a
“threat of civil or criminal sanctions” or other penalty that prohibited plaintiffs from
practicing their religion “in any way” weighed against the finding of a RFRA
violation. Id. The Court concluded that Defendant had “guaranteed” plaintiffs’
access to the remainder of the sacred area (the 99 percent of the mountain) “for
religious purposes” and that the government’s action did not constitute a “substantial
burden on Plaintiffs’ religious rights:
Under RFRA, a ’substantial burden’ is imposed only when individuals
are forced to choose between following the tenets of their religion and
receiving a governmental benefit (Sherbert) or coerced to act contrary
to their religious beliefs by the threat of civil or criminal sanctions
(Yoder). Any burden imposed on the exercise of religion short of that
described by Sherbert and Yoder is not a ‘substantial burden’ within
the meaning of RFRA and does not require the application of the
compelling interest test set forth in those two cases. Id., at 1070.
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Here, unlike Navajo Nation, the United States Government, the President of the
United States of America, through two Executive Orders, has presented the US
government’s employees and contractors with a “take it or leave it” approach to the
COVID-19 vaccine. These millions of individuals (including the 317 Plaintiffs-
Appellants) are presented a Hobson’s choice approach: continue with government
employment and violate your religious tenants or stay true to individual religious
principles and lose employment. This paradox violates RFRA.
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A.
The Vaccine Mandate Does Not Achieve a Compelling Government
Interest as they Failed to Cease Transmission of the Virus.
It is not in dispute that stemming Covid-19 is a compelling government
interest. What is in dispute is whether the vaccines forward that interest. By
December of 2021, the CDC’s guidance on COVID-19 insolation and quarantine
addressed the “general population” and ceased distinguishing between the
vaccinated and unvaccinated populations,16 treating them alike, in part, due to the
failure of the vaccine to prevent transmission. Nonetheless, the President of the
United States persisted in distinguishing between the vaccinated and unvaccinated
populations, including stating, without support, that “For unvaccinated, we are
looking at a winter of severe illness and death — if you’re unvaccinated — for
themselves, their families, and the hospitals they’ll soon overwhelm.”17 Five days
later, the President stated that “Almost everyone who has died from COVID-19 in
the past many months has been unvaccinated. Unvaccinated…. Vaccinated people
who get COVID may get ill, but they’re protected from severe illness and
death. That’s why you should still remain vigilant… But uptake slowed this summer
as vaccine resistance among some hardened. Look, the unvaccinated are responsible
for their own choices… Because Omicron spreads easily, especially among the
unvaccinated, it’s critically important that we know who’s infected.”18
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While the President of the United States may freely opine on the COVID-19
vaccines, neither he, nor the agencies he directs, has power to direct personal medical
decisions of government employees or employees of organizations offering
contracted services to the United States government. This is particularly so when the
opinion conflicts with the science and the statements of his own government advisors

16 Center for Disease Control: CDC Updates and Shortens Recommended Isolation
and Quarantine Period for General Population. December 27, 2021. Available at:
https://www.cdc.gov/media/releases/2021/s1227-isolation-quarantine-
guidance.html. Last accessed: September 9, 2022.
17 Remarks by President Biden After Meeting with Members of the COVID-19
Response
Team.

December
16,
2021.
Available
at:
https://www.whitehouse.gov/briefing-room/speeches-
remarks/2021/12/16/remarks-by-president-biden-after-meeting-with-members-of-
the-covid-19-response-team/. Last accessed: September 9, 2022.
18 Remarks by President Biden on the Fight Against COVID-⁠19. December 21, 2021.
https://www.whitehouse.gov/briefing-room/speeches-
remarks/2021/12/21/remarks-by-president-biden-on-the-fight-against-covid-19/.
Last accessed: September 9, 2022.
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stating that the required vaccines are not shown to prevent achieve the stated goals
of his Executive Orders: ceasing or slowing transmission of the disease (Covid-19)
to certain employees.
The failure is incontrovertible. Data was widely available to the public,
including to the District Court judge, prior to Plaintiffs’ filing of the Complaint.19

19 See, e.g., https://brownstone.org/articles/16-studies-on-vaccine-efficacy/, an
October 2021 report from the Brownstone Institute itemizing 50 studies and reports
from around the world concluding, as the CDC had concluded, that “vaccines are
important to reduce severe disease and death but unable to prevent the disease from
spreading and eventually infect most of us. As such, COVID vaccines should not
be expected to contribute to eliminating the communal spread of the virus or the
reaching of herd immunity. This unravels the rationale for vaccine mandates and
passports.” See also, https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm, a
landmark July 2021 CDC published report on a large public event in Barnstable
County, Massachusetts where 469 COVID-19 cases were identified among
Massachusetts residents who traveled to the town during July 3-17, 2021, in which
the report concluded that 346, or 74% of the positive COVID-19 cases occurred in
fully vaccinated persons, and testing confirmed the Delta variant was found in 90%
of the specimens from 133 of the patients.
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Shortly after Plaintiffs filed the complaint, official government data from the
Province of Ontario (December 25, 2021) showed a higher infection rate among the
vaccinated than the unvaccinated population.20 The same is true in Denmark, 21

20 https://covid-19.ontario.ca/data.
21 According to Danish government data, 89.7% of the country’s Omicron cases are
in vaccinated individuals (many with a booster vaccine). Statens Serum Institut,
COVID-19 Rapport on omikronvarianten at 6, table 4 (Dec. 21, 2021),
https://www.docdroid.com/C9UY7Ef/dk-serum-institut-rapport-omikronvarianten-
21122021-14tk-pdf. Because that figure is higher than the percentage of vaccinated
individuals in the population as a whole, see Johns Hopkins Univ. Coronavirus
Resource Center, Denmark, https://coronavirus.jhu.edu/region/denmark (79% of
Denmark population vaccinated), this means the rate of Omicron infection among
the vaccinated is higher than among the unvaccinated.
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Scotland, 22 and the UK.23 Moreover, those semi-effective vaccines were, and are,
only authorized for emergency use (“EUA”), which, under the Food, Drug and
Cosmetic Act (“FDCA”), is a temporary authorization that is legally, factually, and
scientifically distinct from full Food and Drug Administration approval.24 These data

22 Public Health Scotland, COVID-19 & Winter Statistical Report As At 31 January
2022,
at
41
(Table
14),
https://web.archive.org/web/20220207172220/https://publichealthscotland.scot/me
dia/11597/22-02-02-covid19-winter _publication_report.pdf.
23 UK Health Security Agency, COVID Vaccine Surveillance Report, Week 7, Feb.
17, 2022 at 44 (Table 13) (showing infection rates for vaccinated adults over twice
as
high
as
infection
rates
for
unvaccinated
adults),
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attach
ment_data/file/1055620/Vaccine_surveillance_report_-_week7.pdf.
24 21 U.S.C. § 360bbb-3(b)(1) authorizes the FDA to grant EUA where “there is no
[1] adequate, [2] approved, and [3] available alternative to the product for
diagnosing, preventing, or treating” the disease in question. 21 U.S.C. § 360bbb-
3(c)(3). EUA is granted on: (1) scientific evidence “if available,” “it is reasonable to
believe,” the product “may be effective” in treating or preventing the disease; (2)

Case: 22-35474, 10/24/2022, ID: 12572052, DktEntry: 21-1, Page 58 of 67

sets support Plaintiffs’ position that the President lacks authority to mandate such
vaccines in violation of individual religious rights. The District Court’s error in
dismissing these claims give rise to this appeal.
As a recent study concluded, the vaccines’ ability to stop infection and
transmission of the Omicron variant is “negligible.” Heba Altarawneh, et al., Effects
of Previous Infection and Vaccination on Symptomatic Omicron Infections, 387
NEW
ENG.
J.
MED.
21
(June
15,
2022),
at
https://www.nejm.org/doi/pdf/10.1056/NEJMoa2203965. (“The effectiveness of
vaccination with two doses of BNT162b2 and no previous infection was negligible.”
And, “No discernable differences in protection against symptomatic BA.1 and BA.2
infection were seen with previous infection, vaccination, and hybrid immunity.”)

limited/minimal safety requirements, which require that the FDA conclude that the
“known and potential benefits … outweigh the known and potential risks” of the
product, considering the risks of the disease; and, (3) EUA products are exempt from
certain manufacturing and marketing standards, enjoy broader product liability
protections, and cannot be mandated due to informed consent laws and regulations.
21 U.S.C. §360bbb-3(c)(2)(A), (B).
Case: 22-35474, 10/24/2022, ID: 12572052, DktEntry: 21-1, Page 59 of 67

The Omicron variant now accounts for all COVID-19 infections in the United
States. See CDC COVID Data Tracker, https://covid.cdc.gov/covid-data-
tracker/#variant-proportions (updated Sept. 7, 2022). Yet the Omicron variant
“dramatically evades neutralizing antibody responses,” and so it is able to infect
those with prior vaccine-induced immunity.25 And, Dr. Fauci has grudgingly

25 Jinyan Liu et al., Vaccines Elicit Highly Conserved Cellular Immunity to SARS-
CoV-2 Omicron, 603 NATURE 493, 495 (2022). Those facts, coupled with the
waning of vaccine-mediated immunity over time, means that any vaccine-mediated
immunity a person may have against Omicron largely disappears within six months
of vaccination. See, e.g., N. Andrews et al., COVID-19 Vaccine Effectiveness
Against the Omicron (B.1.1.529) Variant, 386 NEW ENG. J. MED. 1532, 1537
(2022) (Pfizer vaccine’s effectiveness against symptomatic Omicron infection went
from 65.5 percent in the first month to 8.8 percent after six months. Even boosters,
which the Mandate does not require, fail to provide long-term protection against
infection and transmission. See Yinon M. Bar-On et al., Protection by a Fourth Dose
of BNT162b2 Against Omicron in Israel, 386 NEW ENG. J. MED. 1712 (Apr. 5,
2022), at https://www.nejm.org/doi/full/10.1056/NEJMoa2201570 (“Protection
against confirmed infection appeared short-lived” after “a fourth dose of BNT162b2
vaccine”).
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conceded that, “because of the high degree of transmissibility of this virus,” the
vaccines “don’t protect overly well … against infection.”26 Thus, even if regulating
health was appropriate through the EOs was legally proper, the mandated vaccines
fail in the claimed scope of “safeguard[ing]” the government’s contractor workforce
and “ensuring the health and safety of the Federal workforce.”
Having demonstrated standing and ripeness and having discussed the
ineffectiveness of the COVID-19 vaccine, Plaintiff-Appellants have demonstrated
the District Court’s errors that warrant this Court’s overturning of the lower Court’s
decision.
Here, all but 3 Plaintiffs have asserted religious rights by seeking a religious
exemption and an accommodation from the COVID-19 vaccine, and the government
has shown no compelling interest in mandating the vaccine. ER241-ER278
(excepting ER244, ER259, and ER265, the three Plaintiffs that did not file religious
exemptions). Plaintiffs have plead facts that demonstrate that the EOs substantially
burden each Plaintiff’s religious exercise by seeking a religious exemption and

26 Fauci admits that COVID-19 vaccines do not protect ‘overly well’ against
infection, FOX NEWS (July 12, 2022), at https://www.foxnews.com/media/fauci-
admits-covid-19-vaccines-protect-overly-well-infection.
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accommodation to the COVID-19 vaccine and asserting that taking/receiving the
COVID-19 vaccine violates their religious beliefs. Id. see also: ER030-ER084. All
Plaintiffs were initially informed by their employer that no accommodation could be
made to allow the individual to forego taking the vaccine, and 22 were granted a
temporary exemption that has long expired. Id. See: See ER32, ER37, ER44, ER47,
ER53, ER55, ER58, ER61, ER65, ER66, ER67-ER68, ER69, ER73, ER74, ER76,
ER87-ER89, ER90, ER92 noting the 22 Plaintiffs who were granted temporary
accommodations. Moreover, when religious exemptions submitted, requesting
accommodations, employers did not challenge the sincerity of the individual’s
religious beliefs. See: ER224-ER237, ER206-ER217 and ER200-ER205.
B.
The Government Has Not Employed the Least Restrictive Means
to Achieve the Proclaimed interest in Contracting Efficiency.
In addition to forwarding a compelling government interest, RFRA demands
that the least restrictive means necessary be employed. Under a Fed. R. Civ. Pro. 12
standard, the District Court erred by determining that the Government had carried
its burden of showing that, even accepting Plaintiffs’ pleadings as true, compulsory
vaccination is the least restrictive means of reducing the disruption of the
procurement of government contracts. This element was noted in OSHA, where the
Court concluded that the mandate was both overinclusive (in its application to all
industries) as well as underinclusive (by its stringent numeric limitation of 99
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employees). OSHA, at 611. Finally, the Court noted that the world had suffered the
pandemic for nearly two years and that OSHA spent over two months developing
the regulations; thus, the Administration’s reliance on an “emergency” was
“unavailing” to the court as the regulation “grossly exceeds OHSA’s statutory
authority.” Id. These under and overinclusive standards were the crux of the Court’s
decision that OSHA failed to meet this threshold burden of proper tailoring as “this
kind of overbreadth plagues the Mandate generally,” and the Court’s final dagger
was the uncertainty that COVID-19 qualifies as an emergency that warranted OSHA
emergency actions. Id. at 613-14. The challenged EOs fare no better when the burden
shifts to Defendants.
Shifting the burden to Defendants to show that the EOs further a compelling
governmental interest and is the least restrictive means of furthering that interest.
Defendants have not carried that burden; rather, Defendants summarily “accepted”
Plaintiffs’ requests while refusing to accommodate these requests. Additionally,
throughout the pleadings at the lower court, Defendants never satisfied the burden
of demonstrating that the vaccine requirement was the least restrictive means, nor
did they show a compelling interest in the implementation or enforcement of the
EOs.
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C.
RFRA Has No Exhaustion Requirement.
Defendants sought, and wrongly obtained dismissal, on ripeness matters,
claiming that Plaintiff-Appellants first need to exhaust administrative (Equal
Employment Opportunity Commission and RFRA) remedies prior to seeking an
injunction. ER021. As Defendant-Appellees noted, while Plaintiffs’ “exemption
requests remain pending, any infringement of the plaintiffs’ constitutional rights is
purely theoretical.” ER172. But, as Plaintiffs noted in briefing submitted to the
District Court (ER029) the Ninth Circuit and United States Supreme Court have
held, RFRA contains no exhaustion remedy:
We
decline,
however,
to
read
an
exhaustion
requirement
into RFRA where the statute contains no such condition, see 42 U.S.C.
§§ 2000bb–2000bb–4, and the Supreme Court has not imposed one.
Indeed, the Supreme Court has reviewed a RFRA-based challenge to
the CSA without requiring that the plaintiffs first seek a religious use
exemption from the DEA. Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d
1017 (2006).
In
so
doing,
it
recognized
that RFRA ‘plainly
contemplates that courts would recognize exceptions [to the CSA]—
that is how the law works.’ Id. at 434, 126 S.Ct. 1211. Oklevueha
Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 838
(9th Cir. 2012)
Thus, seeking to impose an exhaustion remedy flies in the face of RFRA, itself, and
this Court and the United States Supreme Court’s jurisprudence.

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X.
CONCLUSION

The President’s attempt to maximize vaccination, in an end-run of the States’
sovereignty, and contrary to RFRA, cannot be done through the Procurement Act.
The District Court erred in not granting the Plaintiffs’ requested preliminary
injunction and erred again in dismissing their case without leave to amend.
DATED this 24th day of October 2022.

ARNOLD & JACOBOWITZ PLLC

/s/ Nathan J. Arnold

Nathan J. Arnold, WSBA No. 45356

2701 First Ave., Ste. 200

Seattle, WA 98121

(206) 799-4221

Nathan@CAJLawyers.com

SILENT MAJORITY FOUNDATION

/s/ Simon P. Serrano

Simon Peter Serrano, WSBA No. 54769

Silent Majority Foundation

5238 Outlet Dr

Pasco, WA 99301

(509)567-7083

pete@silentmajorityfoundation.org

Counsel for Appellants

Case: 22-35474, 10/24/2022, ID: 12572052, DktEntry: 21-1, Page 65 of 67

CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that:
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 13,523 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has
been prepared in a proportionately spaced typeface using Microsoft Word Times
New Roman 14-point font.
DATED this 24th day of October 2022.

ARNOLD & JACOBOWITZ PLLC

/s/ Nathan J. Arnold

Nathan J. Arnold, WSBA No. 45356

2701 First Ave., Ste. 200

Seattle, WA 98121

(206) 799-4221

Nathan@CAJLawyers.com

SILENT MAJORITY FOUNDATION

/s/ Simon P. Serrano

Simon Peter Serrano, WSBA No. 54769

Silent Majority Foundation

5238 Outlet Dr

Pasco, WA 99301

(509)567-7083

pete@silentmajorityfoundation.org

Counsel for Appellants
Case: 22-35474, 10/24/2022, ID: 12572052, DktEntry: 21-1, Page 66 of 67

CERTIFICATE OF SERVICE
I hereby certify that on October 24, 2022, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
DATED this 24th day of October, 2022.
/s/Korri Oosting
Korri Oosting
Case: 22-35474, 10/24/2022, ID: 12572052, DktEntry: 21-1, Page 67 of 67

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