Court filing

Reply in support of motion to lift stay — Feds for Medical Freedom v. Biden

Summary

Feds for Medical Freedom and the other plaintiffs replied on June 3, 2023 in No. 3:21-cv-356 (S.D. Tex., Galveston Division), asking the court to lift its stay, grant summary judgment and declaratory relief on Counts 1 and 2, dismiss Counts 3 through 6 without prejudice, and permanently enjoin the vaccine mandates previously imposed under Executive Orders 14,042 and 14,043. The reply says binding Fifth Circuit precedent has held both orders unlawful and that the defendants barely responded on the merits, so any opposition should be deemed forfeited. It reads the defendants' statement that they could move to dismiss by June 22, the day after the certiorari deadline, as showing they are waiting for that deadline to pass. On mootness, it argues the defendants withdrew the mandates by their own choice and refuse to say they will not reimpose them.

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Cite this document

“Reply in support of motion to lift stay — Feds for Medical Freedom v. Biden.” Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/feds-for-medical-freedom-v-biden/2023-06-03-reply-motion-to-lift-stay/.

Full text

Case 3:21-cv-00356 Document 53 Filed on 06/03/23 in TXSD Page 1 of 8

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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Case 3:21-cv-00356 Document 53 Filed on 06/03/23 in TXSD Page 2 of 8

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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Case 3:21-cv-00356 Document 53 Filed on 06/03/23 in TXSD Page 3 of 8

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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Case 3:21-cv-00356 Document 53 Filed on 06/03/23 in TXSD Page 4 of 8

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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Case 3:21-cv-00356 Document 53 Filed on 06/03/23 in TXSD Page 5 of 8

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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Case 3:21-cv-00356 Document 53 Filed on 06/03/23 in TXSD Page 6 of 8

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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Case 3:21-cv-00356 Document 53 Filed on 06/03/23 in TXSD Page 7 of 8

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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Case 3:21-cv-00356 Document 53 Filed on 06/03/23 in TXSD Page 8 of 8

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

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