Reply Brief — Motion to Lift Stay — Feds for Medical Freedom v. Biden (5th Cir.)

Record facts

U.S. District Court for the Southern District of Texas, Galveston Division · No. 3:21-cv-00356 · Doc. 53 · 2023-06-03 · Docket on CourtListener

Full text

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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. 
) 
 
 
 
REPLY IN SUPPORT OF PLAINTIFFS’ MOTION TO LIFT STAY, GRANT 
SUMMARY JUDGMENT AND DECLARATORY RELIEF IN PART, AND ISSUE 
PERMANENT INJUNCTIVE RELIEF 
In their opening brief, Plaintiffs demonstrated that the Court should: first, lift its stay 
in this case; second, grant summary judgment for Plaintiffs on Counts 1 and 2, along with 
declaratory relief on those Counts, pursuant to Count 7; third, dismiss Counts 3 through 6 
without prejudice; and fourth, issue permanent injunctions against enforcement of the 
vaccine mandates previously imposed under Executive Orders 14,042 and 14,043.  
Plaintiffs sought this relief because binding Fifth Circuit precedent has now held 
that both Executive Orders are unlawful and impose irreparable harm. Plaintiffs also 
exhaustively demonstrated that the case is not moot, despite Defendants’ voluntary 
cessation, as there is substantial evidence and logic undercutting any claim that Defendants 
would never reimpose the vaccine mandates.  
Defendants’ Alleged Interest in Seeking Supreme Court Review. In response, 
Defendants primarily ask the Court to keep the stay in place while they consider whether 
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to seek certiorari at the Supreme Court. But they never explain why the Solicitor General 
would ask the Supreme Court to review a case that Defendants themselves claim to have 
mooted, nor why the Supreme Court would ever grant review in such circumstances. 
Defendants apparently are using the vanishing prospect of seeking certiorari to delay this 
case further, perhaps so the decision to withdraw the vaccine mandates will seem further 
in the rear-view mirror by the time this Court reviews the merits. In fact, Defendants claim 
they could file a motion to dismiss by June 22—the very next day after the deadline to seek 
certiorari at the Supreme Court—which confirms they are simply waiting for that deadline 
to pass, without any meaningful intention of seeking Supreme Court review.  
Finally, even when a party does seek certiorari at the Supreme Court, proceedings 
usually continue apace in the lower courts, and there is no reason that should be different 
here. See, e.g., Fed. R. App. P. 41. Defendants could have asked the Fifth Circuit to delay 
issuing the mandate pending a petition for certiorari. See id. Defendants chose not to do so. 
This Court should proceed accordingly. 
Defendants Have Forfeited Any Opposition to Plaintiffs’ Motions for Summary 
Judgment, Declaratory Relief, and Injunctive Relief. On the merits of Plaintiffs’ motion 
for summary judgment, declaratory relief, and injunctive relief, Defendants barely respond 
at all. In fact, their response is so cursory that the Court should deem any opposition 
forfeited, as is customary when a party declines or fails to mount a meaningful opposition 
to a motion for summary judgment. “‘It is a well settled rule that a party opposing a 
summary judgment motion must inform the trial judge of the reasons, legal or factual, why 
summary judgment should not be entered. It is not enough to merely mention or allude to 
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a legal theory in order to raise an argument. Rather, a party must press its claims, which 
entails clearly identifying a theory as a proposed basis for deciding the case.’” Buehler v. 
Dear, 27 F.4th 969, 991 (5th Cir. 2022) (emphasis in original); see also Gray v. White, 18 
F.4th 463, 469 (5th Cir. 2021) (“[W]hen a party fails to raise an argument in opposition to 
a motion for summary judgment …, that argument is waived.”); Fed. R. Civ. P. 56(e) (“If 
a party … fails to properly address another party’s assertion of fact as required by Rule 
56(c), the court may … consider the fact undisputed for purposes of the motion [or] … 
grant summary judgment if the motion and supporting materials—including the facts 
considered undisputed—show that the movant is entitled to it.”). 
In particular, Defendants do not dispute that the Fifth Circuit has issued binding 
precedent on all the issues on which Plaintiffs seek summary judgment and declaratory 
relief. Defendants claim the Fifth Circuit addressed only a preliminary injunction, but 
Plaintiffs’ opening brief already explained at-length why the Fifth Circuit’s opinions in 
Feds for Med. Freedom v. Biden, 63 F.4th 366 (5th Cir. 2023) (en banc), and Louisiana v. 
Biden, 55 F.4th 1017 (5th Cir. 2022), dictate the outcome of Counts 1, 2, and 7 of the 
Complaint in this case. Defendants do not respond to those arguments and never even 
acknowledge the Louisiana case, let alone address that decision. 
Nor do Defendants dispute Plaintiffs’ showing regarding the scope of injunctive 
relief. Plaintiffs made a lengthy and detailed showing that a nationwide injunction remains 
appropriate against the vaccine mandate previously imposed under Executive Order 
14,043. Defendants offer no response. The Court should again deem any opposition 
forfeited. And even if the Court considers the merits, Plaintiffs have met their burden. 
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Defendants Have Failed to Carry Their Burden to Avoid the Voluntary-Cessation 
Exception to Mootness. Defendants can muster only the point that they have not yet filed 
a motion to dismiss these proceedings as moot (Defendants do not state whether they would 
seek to dismiss the case on any other bases). That is irrelevant and unpersuasive for several 
reasons. 
First, in response to Plaintiffs’ detailed arguments about why this case falls within 
the voluntary-cessation exception to mootness, Defendants provide only one “Cf.” cite and 
no further explanation of any kind. Defendants have forfeited any opposition on the matter, 
which is critical because the burden of avoiding the voluntary-cessation doctrine rests 
squarely on Defendants. See West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022).  
The one case Defendants cite in passing is also easily distinguishable. The 
injunction in that case was mooted by the State agency’s “formal[] repeal[]” of the 
challenged regulation, and there was no evidence the regulation would be reimposed. See 
Freedom from Religion Found., Inc. v. Abbott, 58 F.4th 824, 834 (5th Cir. 2023). But here 
there is ample evidence that Defendants may reimpose the vaccine mandates, as explained 
in detail in Plaintiffs’ opening brief, and there is no such intervening formal agency or 
legislative repeal here. Although the COVID-19 emergency was repealed by Congress, the 
vaccine mandates were not premised on that emergency declaration, and the asserted 
authority for those vaccine mandates remains on the books. Further, Abbott was especially 
sensitive to the “serious federalism concerns” if “a federal court [were] to order state 
officials to continue enforcing a policy that the state agency has repealed.” Id. at 837. There 
are no federalism concerns in this case, however. 
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Finally, Abbott expressly held that even though the injunction was moot, the district 
court’s “order and declaratory judgment—declaring that the Defendants violate the First 
Amendment by excluding the Foundation’s exhibit from a limited public forum—shall 
remain.” Id. at 828. Defendants do not address that holding, which confirms this Court 
should at the very least enter judgment and declaratory relief in favor of Plaintiffs.  
Second, even if it weren’t deemed forfeited, the fact that Defendants consciously 
chose not to respond on the merits regarding voluntary cessation only confirms that they 
have no good arguments on the matter. Unlike cases where intervening legislative acts have 
mooted the case, Defendants’ decision to withdraw the vaccine mandates was entirely their 
own choice, made only after they had lost before the en banc Fifth Circuit and well after 
COVID-19 figures had dropped dramatically and stayed relatively low. Even now, 
Defendants refuse to say they will not reimpose the mandates, and the fact that they oppose 
summary judgment here is proof in itself that they have at least some desire to be able to 
reimpose vaccine mandates down the road.  
This case is therefore analogous to the fiasco involving the CDC eviction 
moratorium, which the Administration reimposed after allowing it to lapse and after stating 
publicly that it would not reimpose the moratorium. See, e.g., Josh Boak et al., CDC Issues 
New 
Eviction 
Ban 
for 
Most 
of 
US 
Through 
Oct. 
3 
(Aug. 
4, 
2021), 
https://apnews.com/article/lifestyle-business-health-coronavirus-pandemic-us-supreme-
court-d9757b5fd75f8e5411772621cffde005. If anything, the vaccine mandates are an even 
stronger example of voluntary cessation than the CDC eviction moratorium because 
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Defendants still insist there is ample legal authority for the vaccine mandates, while they 
at least acknowledged the dubious legal grounds for the eviction moratorium. 
Third, it would be a pointless endeavor to allow Defendants to file a motion to 
dismiss when the Fifth Circuit has issued opinions that bind this Court on the relevant 
claims, with the exception of mootness (which Defendants have barely addressed anyway, 
as noted). Any other basis for seeking to dismiss this case would be precluded by the Fifth 
Circuit’s decisions in this case and in Louisiana.  
Defendants’ argument that they are entitled to file a motion to dismiss before 
Plaintiffs can seek summary judgment directly contradicts Rule 56 itself, which expressly 
allows a party to seek summary judgment “at any time” until 30 days after the close of all 
discovery. Fed. R. Civ. P. 56(b). Nor have Defendants invoked Rule 56(d) to argue that 
they are somehow unable to respond to Plaintiffs’ motion at this time. Rather, Defendants 
have simply chosen not to respond in any meaningful way.  
The issue of mootness is already before the Court in Plaintiffs’ timely and 
procedurally proper motion for summary judgment, and Defendants were required to raise 
their arguments in response. See, e.g., Buehler, 27 F.4th at 991. They cannot choose to 
forfeit arguments here in the hopes of trying to resurrect them in some future motion. 
CONCLUSION 
The Court should lift its stay; grant summary judgment in Plaintiffs’ favor and 
against Defendants on Counts 1 and 2, and issue declaratory relief on those Counts pursuant 
to Count 7; dismiss Counts 3 through 6 without prejudice; and issue permanent injunctions 
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against enforcement of the vaccine mandates previously imposed under Executive Orders 
14,042 and 14,043. 
Dated: June 3, 2023 
Respectfully submitted, 
/s/ R. Trent McCotter 
R. TRENT MCCOTTER* 
   So. Dist. No. 3712529 
   Texas Bar No. 24134174 
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 
 
* ATTORNEY-IN-CHARGE 
 
 
 
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CERTIFICATE OF WORD AND PAGE COUNTS 
I hereby certify that the total number of words in this document, exclusive of those 
sections designated for omission, is 1585 words, as registered by Microsoft Word. I further 
certify that this document, exclusive of those sections designated for omission for word 
limit purposes, is 6 pages. I further certify that this document is in size 13 Times New 
Roman font. 
/s/ R. Trent McCotter 
R. Trent McCotter 
 
CERTIFICATE OF SERVICE 
I certify that on June 3, 2023, 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 53   Filed on 06/03/23 in TXSD   Page 8 of 8

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