Court filing
Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 013 Att 0
Summary
Plaintiffs' reply in support of their motion for expedited briefing 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, filed November 11, 2021 as Doc. 13. The Plaintiff States respond to the defendants' opposition, which relied on OMB's approval of an extension of the contractor vaccination deadline to January 18, 2022. The reply argues that the Task Force Guidance and the OMB Determination print conflicting dates, and that the new OMB decision offers a post hoc rationalization for the same contractor vaccine mandate under EO 14042. It asks the Court to grant the motion for expedited briefing. The 8-page filing is signed by the Attorneys General offices of Missouri, Nebraska and other plaintiff states and ends with a certificate of service.
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No. 4:21-cv-01300-DDN · Doc. 13 · Docket on CourtListener
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Case: 4:21-cv-01300-DDN Doc. #: 13 Filed: 11/11/21 Page: 1 of 8 PageID #: 416
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’ REPLY IN SUPPORT
OF MOTION FOR EXPEDITED BRIEFING
Nothing in the Defendants’ opposition justifies denying the Plaintiff States’ motion for
expedited briefing.
Defendants focus on the fact that OMB has approved an extension of the deadline for
covered employees to be fully vaccinated to January 18, 2022. See ECF No. 12, at 3. To start, the
Government’s published guidance on this point is confusing and self-contradictory. Under EO
14042, Task Force Guidance regarding contractor vaccine mandates is binding only after the OMB
Director “approves the [Guidance] and determines that the Guidance ... will promote economy
and efficiency in Federal contracting.” § 2(a). The ostensibly “new” Guidance on the Task Force’s
website requires that “[c]overed contractor employees must be fully vaccinated no later than
January 18, 2021.” Safer Fed. Workforce Task Force, COVID-19 Workplace Safety: Guidance
for Federal Contractors and Subcontractors 5 (updated Nov. 10, 2021), https://bit.ly/3c3q4pk
(emphasis added). But the OMB document to which Defendants link says, purportedly quoting
from the “revised Guidance,” that “[c]overed contractor employees must be fully vaccinated no
later than January 18, 2022.” OMB, Determination of the Acting OMB Director Regarding the
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Case: 4:21-cv-01300-DDN Doc. #: 13 Filed: 11/11/21 Page: 2 of 8 PageID #: 417
Revised Safer Federal Workforce Task Force Guidance and the Revised Economy & Efficiency
Analysis Pursuant to Executive Order No. 14042, at 2, 9 (last accessed Nov. 11, 2021),
https://public-inspection.federalregister.gov/2021-24949.pdf (emphasis added) [hereinafter
“OMB Determination”]. The discrepancy in dates, a key feature of the Guidance, suggests that
the OMB has not approved the Task Force’s Guidance (which has the 2021 date), and the
discrepancy is sure to promote widespread confusion.
It is also doubtful that the Defendants’ six-week grace period provides all that much grace.
All the new deadline does is extend the mandate’s final deadline past the holidays. But it takes
several weeks to become fully vaccinated under the most common (mRNA) vaccines—there is a
three-week (Pfizer) or four-week (Moderna) waiting period between the first and second shots,
and then a two-week interval between the second shot and fully vaccinated status. See COVID-19
Vaccines That Require 2 Shots, CDC, https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/second-shot.html. Employees taking the Pfizer vaccine will thus have to start the
course of vaccination by no later than December 14, and employees taking the Moderna vaccine
will have to start the course of vaccination by no later than December 7. All this means that
working families will have to start making painful decisions about their economic futures—
including cutting back on holiday spending and looking for new employment if necessary—long
before the holidays. Those decisions will also affect employers immediately. That is not a
“conclusory” observation. ECF No. 12, at 3. That is a matter of common sense.
Most importantly, the Defendants’ change to the compliance date highlights the need for
expedited briefing, as Defendants are seeking to unlawfully move the goalposts during litigation.
The change in compliance date is the only substantive policy change between the mandate the
Plaintiff States originally challenged and the so-called “new Determination.” ECF 12, at 4. In all
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Case: 4:21-cv-01300-DDN Doc. #: 13 Filed: 11/11/21 Page: 3 of 8 PageID #: 418
other respects, the mandate is the same. Yet the new OMB decision contains an attempt to provide
a brand-new justification of why the agency approved, on economy and efficiency grounds, the
contractor vaccine mandate and fills procedural gaps it had initially left unaddressed. See OMB
Determination, supra, at 14–20, 21–27. The new decision thus merely provides a new
rationalization for the same policy to replace the entirely conclusory rationalization that the Task
Force and OMB first provided. To put it another way, OMB’s substantive discussion doesn’t
justify the change in compliance date; it purports to provide a new justification for the initial
decision to approve the Task Force’s vaccine mandate. See also ECF No. 12, at 3–4 (saying it
“provides additional” analysis).
That is manifestly unlawful, because this new justification (adopted under litigation) is
merely a post hoc rationalization that “upset[s] ‘the orderly functioning of the process of review,’
forcing both litigants and courts to chase a moving target.” Dep’t of Homeland Sec. v. Regents of
the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020) (citation omitted). And while the target moves,
Defendants are able to use the threat of the mandate to coerce compliance, and thus harm the
weighty interests that caused the Plaintiff States to bring this suit. That is why it is a “foundational
principle of administrative law” to reject such “impermissible post hoc rationalizations.” Id.
(citations omitted). If Defendants had reasons to justify imposing their mandate on one-fifth of
the U.S. workforce, the law obliged them to state those reasons when they adopted the policy—
not after the Plaintiff States sued to challenge the policy. See id.; see also, e.g., Asbestos Info.
Ass’n/N. Am. v. Occupational Safety & Health Admin., 727 F.2d 415, 422 (5th Cir. 1984) (holding
that “post hoc rationalizations cannot be accepted as a basis for our review”). Defendants’ attempts
to move the goalposts while this case is pending call for swifter judicial resolution—not delayed
judicial resolution.
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Case: 4:21-cv-01300-DDN Doc. #: 13 Filed: 11/11/21 Page: 4 of 8 PageID #: 419
There is therefore no need to allow the target to continue the chase. The Plaintiff States’
proposed briefing schedule is more than sufficient to ventilate the issues—including any wrinkles
that OMB’s new determination raises, see ECF No. 12, at 3–4 (claiming, without discussing, that
the new determination affects the Plaintiff States’ procedural and arbitrary-and-capricious
claims)—while also allowing for a decision that will ameliorate the numerous harms the contractor
vaccine mandate imposes on the Plaintiff States.
CONCLUSION
For those reasons, the Plaintiff States respectfully request that the Court grant their motion
for expedited briefing.
Dated: November 11, 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
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Case: 4:21-cv-01300-DDN Doc. #: 13 Filed: 11/11/21 Page: 5 of 8 PageID #: 420
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
JEFFREY S. THOMPSON
Solicitor General
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
5
Case: 4:21-cv-01300-DDN Doc. #: 13 Filed: 11/11/21 Page: 6 of 8 PageID #: 421
AUSTIN KNUDSEN
Attorney General of Montana
KRISTIN HANSEN
Lieutenant General
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
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
6
Case: 4:21-cv-01300-DDN Doc. #: 13 Filed: 11/11/21 Page: 7 of 8 PageID #: 422
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. #: 13 Filed: 11/11/21 Page: 8 of 8 PageID #: 423
CERTIFICATE OF SERVICE
I hereby certify that, on November 11, 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.
/s/ Justin D. Smith
8
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