Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 012 Att 0

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UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF MISSOURI 
 
THE STATE OF MISSOURI, et al. 
 
Plaintiffs, 
 
v. 
 
JOSEPH R. BIDEN in his official 
capacity as President of the United 
States, et al. 
 
Defendants. 
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Case No. 1:21-cv-1300 
 
 
DEFENDANTS’ OPPOSITION TO  
PLAINTIFFS’ MOTION TO EXPEDITE BRIEFING 
Defendants hereby oppose Plaintiffs’ motion to expedite briefing in this case. ECF 10. 
Plaintiffs’ proposed, expedited schedule unnecessarily truncates Defendants’ time to respond to 
Plaintiffs’ motion for a preliminary injunction. As Plaintiffs themselves note, they raise 
“numerous, complex issues” for resolution, in 12 claims. Id. at 4; see also Pls.’ Mot. to Exceed Page 
Limitation, ECF No. 7 (“The issues raised in the Plaintiff States’ motion for preliminary 
injunction are complex and significant.”). Moreover, the federal government has recently taken 
action that may moot or, at minimum, materially alter the scope of, Plaintiffs’ claims while 
simultaneously implementing a six-week extension for employees of federal contractors to 
receive their COVID-19 vaccines. Therefore, and in light of the federal government’s recent 
action, the appropriate next step is for Plaintiffs to review their claims and determine whether 
they intend to proceed with this lawsuit.  To the extent Plaintiffs still wish to proceed, any claims 
they may bring should address the federal government’s updated policy. There is certainly no 
reason to rush preliminary injunction briefing on the federal government’s prior policy that has 
now been superseded.  

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Plaintiffs’ claims concern the federal government’s requirement that certain federal 
contractor employees receive COVID-19 vaccines and adhere to other public safety protocols. 
These requirements are intended to slow the spread of COVID-19 and to prevent disruptions in 
the provision of government services by federal contractors. Executive Order 14042 directed 
federal executive departments and agencies, “to the extent permitted by law,” to include in 
qualifying contracts a clause requiring compliance with workplace safety guidance issued by the 
Safer Federal Workforce Task Force (Task Force).  86 Fed. Reg. at 50,985; see also id. at 
50,986–50,987 (listing the categories of contracts to which the EO applies). The Executive Order 
delegates to the Director of the Office of Management and Budget (OMB) the President’s 
statutory authority to determine whether the Task Force’s guidance “will promote economy and 
efficiency in Federal contracting if adhered to by Government contractors and subcontractors.”  
Id. at 50,985-50,986 (citing 3 U.S.C. § 301). On September 24, 2021, the Director of OMB 
determined that the Task Force Guidance will promote economy and efficiency in federal 
contracting.  See 86 Fed. Reg. 53,691–53,692. Plaintiffs’ motion for a preliminary injunction 
challenges this determination. See Pls.’ Mot. for Prelim. Inj., ECF Nos. 8, 9. 
Earlier today, OMB submitted a notice for publication in the Federal Register entitled 
“Determination of the Acting OMB Director Regarding the Revised Safer Federal Workforce 
Task Force Guidance and the Revised Economy & Efficiency Analysis Pursuant to Executive 
Order No. 14042.” https://www.federalregister.gov/public-inspection/2021-24949/determination-
regarding-the-revised-safer-federal-workforce-task-force-guidance-for-federal (last accessed 
Nov. 10, 2021). OMB’s new determination both incorporates revised Task Force Guidance and 
includes additional analysis to elaborate on the substance of the OMB Director’s determination. 

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That determination has been accepted for filing by the Federal Register and is now legally 
binding.  
The Revised Guidance formally extends the vaccination deadline for covered Federal 
contractors and subcontractors from December 8, 2021 to January 18, 2022—aligning that 
deadline with the Department of Labor’s Occupational Safety and Health Administration 
Emergency Temporary Standard and the Centers for Medicare and Medicaid’s rule.1 In other 
words, to comply with this deadline, a covered employee of a federal contractor would need to 
receive a single-shot of the Johnson & Johnson vaccine, or a second shot of the Pfizer or 
Moderna vaccines, by January 4, 2022. While Plaintiffs allege in conclusory fashion that “the 
holidays” negate the effect of the extension, Pls.’ Mot. to Expedite at 3 n.2, that is plainly 
incorrect—nothing bars contractor employees from being vaccinated in late December, or even 
choosing to get their one-and-only dose of the Johnson & Johnson vaccine in early January.  This 
significant extension alone justifies the denial of Plaintiffs’ motion for expedited briefing—to the 
extent Plaintiffs’ motion for a preliminary injunction is still even relevant in light of the 
substantive changes reflected in the new Determination.  
The revised Determination makes several other changes material to this litigation. For 
example, the new Determination explains that, although not subject to the procedural 
requirements in 41 U.S.C. § 1707, it nevertheless complies with those requirements. The new 
Determination also provides additional economy-and-efficiency analysis underlying the OMB 
                                              
1 While plaintiffs correctly note that “[o]nly changes the Task Force makes, and which 
OMB approves, are legally binding,” see Pls.’ Mot. For Expedited Briefing at 3 n.2, the Revised 
Guidance is consistent with the White House’s November 4, 2021 statement indicating that the 
deadlines would be revised.  The White House, Fact Sheet: Biden Administration Announces 
Details of Two Major Vaccination Policies, https://www.whitehouse.gov/briefing-
room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-
major-vaccination-policies/ (last accessed Nov. 10, 2021). 
 

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Director’s Determination. OMB Director’s new Determination rescinds and supersedes the prior 
Determination and may therefore moot or narrow the scope of several claims brought by 
Plaintiffs.  
OMB’s transmittal of a new Determination on the Task Force Guidance, the weighty 
statutory and constitutional issues at play, and the recent six-week extension of time for covered 
contractor employees to be fully vaccinated all counsel in favor of denying Plaintiffs’ motion to 
expedite briefing. Instead, Plaintiffs should decide whether and to what extent they wish to 
proceed with any revised claims.2 
 
Dated: November 10, 2021 
Respectfully submitted, 
 
 
 
 
 
 
 
 
 
BRIAN M. BOYNTON 
Acting Assistant Attorney General 
 
BRAD P. ROSENBERG 
Assistant Branch Director 
 
/s/ Vinita B. Andrapalliyal 
VINITA B. ANDRAPALLIYAL 
ZACH A. AVALLONE 
Trial Attorneys 
United States Department of Justice 
Civil Division, Federal Programs Branch 
P.O. Box No. 883, Ben Franklin Station 
Washington, DC 20044 
Phone: (202) 305-0845 
Fax: (202) 616-8470 
E-mail: vinita.b.andrapalliyal@usdoj.gov 
 
Attorneys for Defendants 
 
                                              
2 Should this Court elect to proceed with preliminary-injunction briefing, Defendants 
agree with the page limits proposed by Plaintiffs.

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