Court filing
Opposition to Motion to Lift Stay — Feds for Medical Freedom v. Biden (5th Cir.)
Filed June 2, 2023 in Feds for Medical Freedom v. Biden; one of 9 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Texas, Galveston Division |
|---|---|
| Filed | 2023-06-02 |
U.S. District Court for the Southern District of Texas, Galveston Division · No. 3:21-cv-00356 · Doc. 52 · 2023-06-02 · Docket on CourtListener
Full text
1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
FEDS FOR MEDICAL FREEDOM, et al.,
Plaintiffs,
v.
JOSEPH R. BIDEN, JR., in his official
capacity, et al.,
Defendants.
Civil Action 3:21-cv-00356
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION TO LIFT STAY AND FOR SUMMARY JUDGMENT
On March 23, 2022, the Fifth Circuit sitting en banc affirmed this Court’s order
granting a nationwide preliminary injunction against enforcement of Executive Order 14043.
See Feds for Medical Freedom v. Biden, 63 F.4th 366 (5th Cir. 2023). Subsequently, on May 9, 2023,
President Biden revoked Executive Order 14043 (as well as Executive Order 14042, applicable
to federal contractors), effective at 12:01 a.m. on May 12, 2023. See Exec. Order No. 14099,
88 Fed. Reg. 30,891 (May 9, 2023) (“Revocation Executive Order”). The Fifth Circuit’s
mandate then issued on May 15, 2023. See Judgment on Rehearing En Banc, ECF No. 50.
Now, Plaintiffs ask this Court to lift its stay on further proceedings and summarily award
declaratory and permanent injunctive relief to them. But Defendants respectfully submit that
this litigation should remain stayed pending final resolution of their appeal from the Court’s
preliminary-injunction order, and that, in any event, it would be inappropriate for the Court
to enter final relief at this time.
Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 1 of 5
2
The stay remains justified for substantially the same reasons that warranted it in the
first place. After this Court entered a nationwide preliminary injunction against enforcement
of Executive Order 14043, Defendants appealed and moved “to stay further litigation, pending
final resolution of the preliminary injunction appeal.” See Defs.’ Mot. to Stay, ECF No. 44, at
1. In their motion, Defendants explained that the resolution of the appeal could provide
“substantial” guidance relevant to any further proceedings, and that Plaintiffs would face “no
threat of harm from the Executive Order” in the interim. Id. at 3. Finding Defendants’ motion
“well taken,” the Court stayed this case.
The issuance of the Fifth Circuit’s mandate does not undermine the reasons for the
present stay. The Solicitor General is responsible for determining whether to seek further
review of the Fifth Circuit’s decision, see 20 C.F.R. § 0.20(a), and no determination has been
made at this time. Specifically, Defendants have until June 21, 2023 to petition the Supreme
Court for a writ of certiorari in its appeal from this Court’s preliminary-injunction order. Until
the time for Defendants to seek further review has passed, or any proceedings before the
Supreme Court have concluded, Defendants’ appeal has not been finally resolved. Such final
resolution was expressly contemplated by Defendants’ original (and “well taken”) motion to
stay. And given that further action by the Supreme Court may yet inform subsequent
proceedings in this Court, and because there continues to be no threat of harm to Plaintiffs in
the interim, there is no compelling reason to reverse course now.
Even if the Court were inclined to lift the stay at this time, it would be inappropriate
to summarily enter final judgment in favor of Plaintiffs without further proceedings. As the
Fifth Circuit emphasized, its decision involved only a “preliminary injunction,” Feds for Med.
Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 2 of 5
3
Freedom, 63 F.4th at 389, and many issues remain to be determined, particularly mootness. Cf.
id. (noting the need for the parties to “grapple” with the end of the COVID-related emergency
in subsequent district court proceedings). And even setting aside mootness, Defendants have
not yet even responded to Plaintiffs’ complaint and this Court still would need to conduct
further proceedings on the merits before entering any final judgment. See, e.g., Feds for Med.
Freedom, 63 F.4th at 389 (“When the parties proceed to the merits in the district court, the
plaintiffs will have to prove that whatever injunction they request is broad enough to protect
against their proven injuries and no broader. And the Government will have another chance
to show that any permanent injunction should be narrower than the preliminary one.”).
Accordingly, the Court should reject Plaintiffs’ premature request for summary judgment and
final declaratory and injunctive relief.
If the Court is inclined to lift the stay, it should do so for the limited purpose of
determining mootness. Plaintiffs preemptively attempt to wave away their mootness problem
by invoking the voluntary-cessation exception to mootness, but that exception has no
application here. Cf. Freedom From Religion Found., Inc. v. Abbott, 58 F.4th 824, 833 (5th Cir.
2023) (noting that “‘[w]ithout evidence to the contrary, we assume that formally announced
changes to official governmental policy are not mere litigation posturing,’” and “the
government’s ability to reimplement the statute or regulation at issue is insufficient to prove
the voluntary-cessation exception” (citation omitted)). And in any event, the Court should
permit Defendants to affirmatively assert mootness as part of a procedurally appropriate
motion to dismiss in the first instance. If the Court does decide to lift the stay on further
Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 3 of 5
4
proceedings in this case, Defendants would be prepared to move to dismiss this case as moot
by June 22, 2023.
Dated: June 2, 2023
Respectfully submitted,
DAMIEN DIGGS
United States Attorney
Eastern District of Texas
/s/ James G. Gillingham
JAMES G. GILLINGHAM
Assistant United States Attorney
Eastern District of Texas
Acting Under Authority Conferred by 28 U.S.C. §
515
Attorney in Charge
Texas Bar #24065295
110 N. College Street; Suite 700
Tyler, Texas 75702
Telephone: (903) 510-9346
Facsimile: (903) 590-1436
James.Gillingham@usdoj.gov
Counsel for Defendants
Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 4 of 5
5
CERTIFICATE OF SERVICE
I certify that on June 2, 2023, a true and accurate copy of the foregoing document was
filed electronically (via CM/ECF) and served on all counsel of record.
/s/ James G. Gillingham
JAMES G. GILLINGHAM
Case 3:21-cv-00356 Document 52 Filed on 06/02/23 in TXSD Page 5 of 5File and source
- File
- 3-21-cv-00356_RECAP_gov.uscourts.txsd.1855108.52.0.pdf
- Size
- 138,759 bytes
- SHA-256
- 6289bb37e985ffbb87cd805881906dd848404e8d6ed34262563e71f9f2b9edce
- Original
- No public link identified.