Court filing
Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 010 Att 0
Summary
Plaintiffs' Motion for Expedited Briefing and Consideration of Their Motion for Preliminary Injunction, filed November 9, 2021 in The State of Missouri, et al. v. Joseph R. Biden, Jr., et al., No. 4:21-cv-01300-DDN, in the U.S. District Court for the Eastern District of Missouri (Doc. 10). The plaintiff states ask the Court to rule on their preliminary injunction motion by November 24, 2021, two weeks before the December 8, 2021 vaccination deadline in the Safer Federal Workforce Task Force guidance for federal contractors. They propose a defense opposition of up to 55 pages due November 15, 2021, a reply of up to 20 pages due November 18, 2021, and a hearing if needed. The motion states that defendants do not consent. It is signed by counsel from the attorneys general's offices of the plaintiff states.
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No. 4:21-cv-01300-DDN · Doc. 10 · Docket on CourtListener
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Case: 4:21-cv-01300-DDN Doc. #: 10 Filed: 11/09/21 Page: 1 of 8 PageID #: 403
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE STATE OF MISSOURI,
et al.
Plaintiffs,
v. No. 4:21-cv-01300-DDN
JOSEPH R. BIDEN, JR.;
et al.
Defendants.
PLAINTIFFS’ MOTION FOR EXPEDITED BRIEFING AND CONSIDERATION OF
THEIR MOTION FOR PRELIMINARY INJUNCTION
Plaintiff States respectfully request this Court to order expedited briefing and consideration
of their motion for a preliminary injunction. To ensure effective relief and to maintain the status
quo, Plaintiff States request that this Court issue its preliminary injunction ruling by November
24, 2021, which is the date by which individuals subject to the federal contractor vaccine mandate
must effectively comply with the mandate. In order to meet that deadline, and to provide the Court
full briefing on the issues, the Plaintiffs propose the following expedited briefing schedule and
page limits pursuant to Local Rule 4.01:
• Defendants’ opposition, not to exceed 55 pages, due November 15, 2021.
• Plaintiff States’ Reply, not to exceed 20 pages, due November 18, 2021.
• A hearing, if the Court deems it necessary, on November 19, 22, 23, or 24.
Plaintiff States have met and conferred with Defendants, who do not consent to this request.
Defendants intend to respond to this motion by tomorrow.
1
Case: 4:21-cv-01300-DDN Doc. #: 10 Filed: 11/09/21 Page: 2 of 8 PageID #: 404
ARGUMENT
This case involves a challenge by 10 states (the Plaintiff States) to the federal government’s
sweeping requirement that federal contractors ensure that subcontractors and any employee who
is even remotely connected to a federal contract—including those merely walking past an
employee working on a federal contract—be fully vaccinated against COVID-19 by December 8,
2021. The contractor vaccine mandate is embodied in a “guidance” document issued by the Safer
Federal Workforce Task Force (the Task Force) entitled COVID-19 Workplace Safety: Guidance
for Federal Contractors and Subcontractors. See generally Ex. B, ECF No. 9-2. 1
The contractor vaccine mandate will impose several species of concrete harms on the
Plaintiff States in their sovereign, quasi-sovereign, and proprietary capacities. So the Plaintiff
States filed the complaint in this case on October 29, 2021. See ECF No. 1. They filed their
preliminary injunction motion on November 4, 2021. See ECF No. 8. Those filings occurred after
the unprecedented scope of contractor vaccine mandate became clear. During recent weeks, the
federal government informed a number of agencies and political subdivisions of the Plaintiff States
that they would be subject to the contractor vaccine mandate, making clear to Plaintiff States that
they must take action. See, e.g., Exs. H, I, L, O.
In their preliminary injunction motion, the Plaintiff States requested a ruling by November
24, 2021. That was because the current guidance requires that employees subject to the mandate
be “fully vaccinated no later than December 8, 2021.” Ex. B, at 5. Because the Guidance says
that workers are fully vaccinated “two weeks after” they complete their vaccination regimen, see
id. at 2, a ruling by November 24, 2021—that is, two weeks before the December 8 deadline—is
1
Unless otherwise noted, all references are to exhibits to the Plaintiffs’ Memorandum in Support
of Motion for Preliminary Injunction, ECF Nos. 9-1 through 9-15.
2
Case: 4:21-cv-01300-DDN Doc. #: 10 Filed: 11/09/21 Page: 3 of 8 PageID #: 405
necessary to ensure that the Plaintiff States can receive effective relief if they succeed on the
merits. 2
Absent preliminary relief before November 24th, contractors—including agencies and
political subdivisions of the Plaintiff States—will have to demand that covered employees be
vaccinated or adjudicate numerous exceptions—possibly in violation of state laws, see ECF No.
9, at 38–39 (providing examples of preempted laws the mandate may violate), as well as take
expensive steps to segregate unvaccinated employees from vaccinated ones. Furthermore,
employees will have to decide to stay and be vaccinated—possibly contrary to what they would
do if their job wasn’t on the line—or quit or seek an exemption which may or may not be granted.
Those are harms that are incredibly difficult, if not possible, to undo and strike straight at the
interests the Plaintiff States seek to vindicate with this suit. Indeed, certain harms are currently
ongoing. For example, the vaccine contractor mandate purports to preempt state law. See Ex. B,
at 13. Thus, there are present, ongoing harms that preliminary relief would ameliorate.
For those reasons, there is good cause for the Plaintiff States’ request for a ruling by
November 24, 2021. See, e.g., Navigare Cruise Partners, LLC v. Lazaroff, 2021 WL 4168207, at
*3 (E.D. Mo. Sept. 14, 2021) (“The primary function of a preliminary injunction is to preserve the
status quo until, upon final hearing, a court may grant full, effective relief.”) (emphasis omitted)
2
The White House issued a “Fact Sheet” on November 4, 2021, ostensibly changing the
compliance date to January 4, 2022, but this “Fact Sheet” does not change the current, legally
binding deadline to comply with the contractor vaccine mandate. See Fact Sheet: Biden
Administration Announces Details of Two Major Vaccination Policies, The White House (Nov 4,
2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-
biden-administration-announces-details-of-two-major-vaccination-policies/. Only changes the
Task Force makes, and which OMB approves, are legally binding. See Ex. B, at 12–13; see also
Exec. Order No. 14042, § 2(a) (Ex. A). Moreover, the practical value of the delay is minimal.
Vaccination takes weeks, a fact that the holidays complicate. And employers will need time to
ensure compliance—for example, by adjudicating exemptions, see Ex. B, at 9–10, or by
determining who must be vaccinated or segregated, see id. at 10–11.
3
Case: 4:21-cv-01300-DDN Doc. #: 10 Filed: 11/09/21 Page: 4 of 8 PageID #: 406
(quoting Kan. City S. Transp. Co. v. Teamsters Local Union #41, 126 F.3d 1059, 1066 (8th Cir.
1997) (quoting another source)). And thus there is good cause to order expedited briefing. The
schedule the Plaintiff States propose here would allow full ventilation of the numerous, complex
issues involved, give the Court time to carefully consider them, and allow for a ruling by November
24, 2021, thus ensuring that the Plaintiff States can receive effective relief if they succeed on the
merits. See Local Rule 4.01(D) (allowing the Court to set a briefing schedule); Thomas v.
Lombardi, 2013 WL 3243655, at *2 (E.D. Mo. June 26, 2013). Finally, there is no reason to
believe that the Defendants could not meet those deadlines. Indeed, the Fifth Circuit, in a related
context, noted the “grave statutory and constitutional issues” with vaccine mandates, like this one,
and gave the government only two days in which to respond. BST Holdings, LLC v. OSHA, 2021
WL 5166656, at *1 (5th Cir. Nov. 6, 2021).
CONCLUSION
For those reasons, the Plaintiff States respectfully request that the Court, pursuant to Local
Rule 4.01, order that:
• Defendants file their opposition, not to exceed 55 pages, by Monday, November
15, 2021.
• Plaintiff States file their reply, not to exceed 20 pages, by Thursday, November 18,
2021.
If the Court determines that a hearing is necessary, Plaintiff States can appear on November
19, 22, 23, or 24.
4
Case: 4:21-cv-01300-DDN Doc. #: 10 Filed: 11/09/21 Page: 5 of 8 PageID #: 407
Dated: November 9, 2021 Respectfully submitted,
DOUGLAS J. PETERSON ERIC S. SCHMITT
Attorney General of Nebraska Attorney General of Missouri
/s/ James A. Campbell /s/ Justin D. Smith
James A. Campbell Justin D. Smith, #63253MO
Solicitor General of Nebraska Deputy Attorney General of Missouri
Office of the Nebraska Attorney General Michael E. Talent, #322220CA
2115 State Capitol Deputy Solicitor General
Lincoln, NE 68509 Missouri Attorney General’s Office
(402) 471-2686 Post Office Box 899
Jim.Campbell@nebraska.gov Jefferson City, MO 65102
Counsel for Plaintiffs (573) 751-0304
Justin.Smith@ago.mo.gov
Counsel for Plaintiffs
TREG R. TAYLOR
Attorney General of Alaska
/s/ Cori Mills
Cori M. Mills
Deputy Attorney General of Alaska
Alaska Department of Law
1031 W. 4th Avenue, Suite 200
Anchorage, AK 99501-1994
(907) 269-5100
Cori.Mills@alaska.gov
Counsel for State of Alaska
LESLIE RUTLEDGE
Arkansas Attorney General
/s/ Vincent M. Wagner
Vincent M. Wagner
Deputy Solicitor General
Office of the Arkansas Attorney General
323 Center Street, Suite 200
Little Rock, Arkansas 72201
(501) 682-8090
vincent.wagner@arkansasag.gov
5
Case: 4:21-cv-01300-DDN Doc. #: 10 Filed: 11/09/21 Page: 6 of 8 PageID #: 408
JEFFREY S. THOMPSON
Solicitor General
Samuel P. Langholz
SAMUEL P. LANGHOLZ
Assistant Solicitor General
Office of the Iowa Attorney General
1305 E. Walnut Street
Des Moines, Iowa 50319
(515) 281-5164
(515) 281-4209 (fax)
jeffrey.thompson@ag.iowa.gov
sam.langholz@ag.iowa.gov
Counsel for State of Iowa
AUSTIN KNUDSEN
Attorney General of Montana
KRISTIN HANSEN
Lieutenant General
David M.S. Dewhirst
DAVID M.S. DEWHIRST
Solicitor General
CHRISTIAN B. CORRIGAN
Assistant Solicitor General
Office of the Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
406-444-2026
David.Dewhirst@mt.gov
Christian.Corrigan@mt.gov
Counsel for State of Montana
JOHN M. FORMELLA
New Hampshire Attorney General
/s/ Anthony J. Galdieri
Anthony J. Galdieri
Solicitor General
NEW HAMPSHIRE DEPARTMENT OF JUSTICE
33 Capitol Street
Concord, NH 03301
Tel: (603) 271-3658
Anthony.J.Galdieri@doj.nh.gov
Counsel for State of New Hampshire
6
Case: 4:21-cv-01300-DDN Doc. #: 10 Filed: 11/09/21 Page: 7 of 8 PageID #: 409
WAYNE STENEHJEM
Attorney General of North Dakota
/s/ Matthew A. Sagsveen
Matthew A. Sagsveen
Solicitor General
State Bar ID No. 05613
Office of Attorney General
500 North 9th Street
Bismarck, ND 58501-4509
Telephone (701) 328-3640
Facsimile (701) 328-4300
masagsve@nd.gov
Counsel for State of North Dakota
JASON R. RAVNSBORG
South Dakota Attorney General
/s/ David M. McVey
David M. McVey
Assistant Attorney General
1302 E. Highway 14, Suite 1
Pierre, SD 57501-8501
Phone: 605-773-3215
E-Mail: david.mcvey@state.sd.us
Counsel for State of South Dakota
BRIDGET HILL
Wyoming Attorney General
/s/ Ryan Schelhaas
Ryan Schelhaas
Chief Deputy Attorney General
Wyoming Attorney General’s Office
109 State Capitol
Cheyenne, WY 82002
Telephone: (307) 777-5786
ryan.schelhaas@wyo.gov
Attorneys for the State of Wyoming
7
Case: 4:21-cv-01300-DDN Doc. #: 10 Filed: 11/09/21 Page: 8 of 8 PageID #: 410
CERTIFICATE OF SERVICE
I hereby certify that, on November 9, 2021, a true and correct copy of the foregoing and
any attachments were filed electronically through the Court’s CM/ECF system, to be served on
counsel for all parties by operation of the Court’s electronic filing system and to be served on those
parties that have not appeared who will be served in accordance with the Federal Rules of Civil
Procedure by mail or other means agreed to by the party.
/s/ Justin D. Smith
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