Plaintiffs' notice of supplemental authority — Feds for Medical Freedom v. Biden

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Plaintiffs' Notice of Supplemental Authorities, Document 29, filed on 01/13/22 in Feds for Medical Freedom, et al. v. Joseph R. Biden, Jr., et al., No. 3:21-cv-356, in the United States District Court, Southern District of Texas, Galveston Division. Plaintiffs state that the Supreme Court issued decisions that day on stay applications regarding the OSHA vaccine mandate and the CMS mandate, staying the former and allowing the latter to go into effect, and that neither opinion directly references the Employee Mandate. Plaintiffs argue that the Employee Mandate tracks the OSHA mandate rather than the CMS mandate and set out quotes from each opinion under headings on statutory authority and scope, historical precedent, and the extent of the administrative record. The notice is dated January 13, 2022 and signed /s/ R. Trent McCotter.

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Case 3:21-cv-00356 Document 29 Filed on 01/13/22 in TXSD Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
FEDS FOR MEDICAL FREEDOM, et al.,
Plaintiffs,
v.
JOSEPH R. BIDEN, JR., et al.,
Defendants.

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) No. 3:21-cv-356
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NOTICE OF SUPPLEMENTAL AUTHORITIES
As the Court is likely aware, earlier today the Supreme Court issued decisions on
stay applications regarding the OSHA vaccine mandate, which imposed an
undifferentiated, de facto vaccine mandate on millions of employees in the country (Ex. A,
attached); and regarding Health and Human Services’ CMS mandate, which narrowly
targeted vaccines for employees who work at certain medical facilities that present a
uniquely compelling and clear target for vaccines (Ex. B, attached). The Court stayed the
former but allowed the latter to go into effect.
Neither opinion directly references the Employee Mandate challenged here. But on
every meaningful aspect on which the Court differentiated the OSHA and CMS mandates,
the Employee Mandate tracks the now-stayed OSHA mandate and not the CMS mandate.
The

OSHA

mandate—like

the

Federal

Employee

Mandate—operated

indiscriminately in the workplace, without a clear statutory basis, and lacked historical
roots. But the CMS mandate—unlike the Employee Mandate—was allowed to take effect

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because it is narrowly targeted to certain medical facilities (indeed, only certain workers
within those facilities), had a clear statutory basis, tracks infectious-disease-prevention
requirements that the agency had long mandated, and was supported by an extensive
administrative record.
With the Court’s indulgence, Plaintiffs have pulled the relevant quotes from each
opinion and then compare them to the Federal Employee Mandate.
STATUTORY AUTHORITY AND SCOPE OF MANDATE
OSHA lacked clear statutory authority for a broad workplace mandate: The Court
found that OSHA was trying to impose the square peg of a widespread health-and-safety
measure into the round hole of a statute that spoke to occupational concerns. “Although
COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in
most.” OSHA Op. 6. “Permitting OSHA to regulate the hazards of daily life—simply
because most Americans have jobs and face those same risks while on the clock—would
significantly expand OSHA’s regulatory authority without clear congressional
authorization.” Id. at 7. “OSHA’s indiscriminate approach fails to account for this crucial
distinction—between occupational risk and risk more generally—and accordingly the
mandate takes on the character of a general public health measure.” Id. The mandate is thus
“untethered, in any causal sense, from the workplace.” Id. at 8.
The Court further noted that the “exemptions [in the OSHA mandate] are largely
illusory.” Id. at 3. And vaccines were different in kind from prior workplace rules: “But a
vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically
imposed. A vaccination, after all, ‘cannot be undone at the end of the workday.’” Id. at 7.
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The CMS mandate had clear and express statutory authority to target medical
facilities: By contrast, the CMS mandate was narrowly focused on the medical nature of
the facilities at issue. The Court noted that “perhaps the most basic” “function” of HHS “is
to ensure that the healthcare providers who care for Medicare and Medicaid patients protect
their patients’ health and safety,” as confirmed by express statutory power for HHS to
impose “‘requirements as [the Secretary] finds necessary in the interest of the health and
safety of individuals who are furnished services in the institution.’” CMS Op. 2 (quoting
42 U. S. C. §1395x(e)(9)). The CMS mandate even narrowly targeted certain employees
within these facilities, as it “does not cover staff who telework full-time.” Id. at 3.
In case there were any doubt about the narrow, medical-facility-focused nature of
the ruling, the Court noted it expressly: “ensuring that providers take steps to avoid
transmitting a dangerous virus to their patients is consistent with the fundamental principle
of the medical profession: first, do no harm. It would be the ‘very opposite of efficient and
effective administration for a facility that is supposed to make people well to make them
sick with COVID–19.’” Id. at 5. Given this plain statutory authority and narrow targeting,
the Court allowed the CMS mandate to take effect.
The Federal Employee Mandate tracks the OSHA mandate: The CMS mandate
was based on a statute expressly authorizing health and safety measures for a targeted
group of medical-focused facilities. But like the OSHA mandate, the Federal Employee
Mandate lacks clear statutory authority for imposing requirements necessary to protect
employees from the “hazards of daily life.” At best, the President relies on the word
“conduct” in 5 U.S.C. § 7301. But if OSHA—whose statutory mandate is to focus on
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workplace harms—lacks the power to order vaccines as part of the workplace, it beggars
belief the President nonetheless has that same power over the workplace through the guise
of regulating “conduct,” especially given the Court’s concern that vaccines are simply
different in kind than prior workplace requirements, a point that Plaintiffs made in this case
by comparing prior Executive Orders limited to workplace harms, with the Employee
Mandate, which imposes a permanent status. Further, mandating vaccines for so many
employees without differentiation proves that the Employee Mandate is “untethered …
from the workplace,” OSHA Op. 8—just as in the OSHA mandate.
Given all this, the President cannot claim that mandating vaccines is “conduct” he
can regulate as a “workplace” activity. OSHA tried that (with far more statutory authority
than Defendants muster here)—and was just rejected. That alone is sufficient to find a lack
of authority to issue the Employee Mandates.
But even if there were some ambiguity, the presumption is that whatever power
Congress gave the President to regulate “conduct,” it would not include mandating
vaccines, as that “falls squarely within the States’ police power,” BST Holdings, L.L.C. v.
OSHA, 17 F.4th 604, 617 (5th Cir. 2021), and thus would require a clear statement of
authority despite the federal nexus, Kentucky v. Biden, ___ F.4th ___, 2022 WL 43178, at
*16 (6th Cir. Jan. 5, 2022) (rejecting government’s argument that the federalism clearstatement doctrine does not apply to federal contractor mandate).
EVIDENCE OF HISTORICAL PRECEDENT
OSHA had never previously issued anything like a vaccine mandate. The Court
also relied heavily on the fact that “OSHA has never before imposed such a mandate.”
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OSHA Op. 1. “It is telling that OSHA, in its half century of existence, has never before
adopted a broad public health regulation of this kind—addressing a threat that is
untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’
coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’
that the mandate extends beyond the agency’s legitimate reach.” Id. at 8.
The CMS mandate followed a long history of infectious-disease measures at
hospitals. By contrast, HHS had “long included a requirement that certain providers
maintain and enforce an ‘infection prevention and control program designed . . . to help
prevent the development and transmission of communicable diseases and infections.’”
CMS Op. 2. “[H]ealthcare facilities that wish to participate in Medicare and Medicaid have
always been obligated to satisfy a host of conditions that address the safe and effective
provision of healthcare.” Id. at 6. And again invoking the unique nature of medical
facilities, the Court noted that “[v]accination requirements are a common feature of the
provision of healthcare in America.” Id. at 7.
The Employee Mandate tracks the OSHA mandate. There is no evidence that
Defendants have ever required vaccines or anything even remotely akin for federal
employees, nor is being vaccinated a common feature of federal employment. As in OSHA,
this lack of precedent is a very strong indication of lack of power. In the CMS case, by
contrast, the agency had long required infectious-disease-prevention tools. “The challenges
posed by a global pandemic do not allow a federal agency to exercise power that Congress
has not conferred upon it. At the same time, such unprecedented circumstances provide no
grounds for limiting the exercise of authorities the agency has long been recognized to
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have.” Id. at 9. Because Defendants have not “long been recognized to have” the power to
force their employees to undergo permanent medical procedures, the Employee Mandate
tracks the now-stayed OSHA mandate.
EXTENT OF ADMINISTRATIVE RECORD
Finally, as noteworthy for Plaintiffs’ APA claims, the Court in the CMS case noted
the extensive “rule-making record” supporting the CMS mandate. Id. at 8. Of course, there
is no record (let alone an extensive one) for the Federal Employee Mandate, which provides
no rationale or data whatsoever.
Respectfully submitted,
/s/ R. Trent McCotter
R. TRENT MCCOTTER (So. Dist. No. 3712529)
JONATHAN BERRY (pro hac vice)
MICHAEL BUSCHBACHER (pro hac vice)
JARED M. KELSON (pro hac vice)
BOYDEN GRAY & ASSOCIATES
801 17th St. NW, #350
Washington, DC 20006
(202) 706-5488
mccotter@boydengrayassociates.com

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CERTIFICATE OF SERVICE
I certify that on January 13, 2022, a true and accurate copy of the foregoing
document was filed electronically (via CM/ECF) and served on all counsel of record.
/s/ R. Trent McCotter
R. Trent McCotter

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