Notice of Supplemental Authorities — Feds for Med. Freedom v. Biden

Record facts

U.S. District Court for the Southern District of Texas, Galveston Division · No. 3:21-cv-00356 · Doc. 29 · 2022-01-13 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF TEXAS 
GALVESTON DIVISION 
 
FEDS FOR MEDICAL FREEDOM, et al., 
) 
 
) 
Plaintiffs, 
) 
 
) 
v.  
) No. 3:21-cv-356 
 
) 
JOSEPH R. BIDEN, JR., et al., 
) 
 
) 
Defendants. 
) 
 
 
 
 
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 
Case 3:21-cv-00356   Document 29   Filed on 01/13/22 in TXSD   Page 1 of 7

2 
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. 
Case 3:21-cv-00356   Document 29   Filed on 01/13/22 in TXSD   Page 2 of 7

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

4 
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 clear-
statement 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.” 
Case 3:21-cv-00356   Document 29   Filed on 01/13/22 in TXSD   Page 4 of 7

5 
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 
Case 3:21-cv-00356   Document 29   Filed on 01/13/22 in TXSD   Page 5 of 7

6 
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 
 
Case 3:21-cv-00356   Document 29   Filed on 01/13/22 in TXSD   Page 6 of 7

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

File and source

File

3-21-cv-00356_RECAP_gov.uscourts.txsd.1855108.29.0.pdf

Size

142,260 bytes

SHA-256

767342c5d1296f4a2a6fa326c14385c3caaf5ce72334f57e5eecd398b7258c88

Our copy

3-21-cv-00356_RECAP_gov.uscourts.txsd.1855108.29.0.pdf

Original

No public link identified.