Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 031 Att 0

Summary

Plaintiffs' Notice of Supplemental Authority filed December 15, 2021 in State of Missouri, et al. v. Joseph R. Biden, et al., No. 4:21-cv-01300-DDN, in the U.S. District Court for the Eastern District of Missouri, docketed as Doc. 31. The ten plaintiff states, including Missouri, Nebraska, Alaska and Wyoming, notify the court of a Fifth Circuit order issued that day in Louisiana et al. v. Becerra et al., No. 21-30734, on the stay of a nationwide preliminary injunction against the CMS vaccine mandate. The notice states that the Fifth Circuit applied the major questions doctrine even in the federal spending context, and argues that the contractor mandate is not targeted and that the Fifth Circuit's limit on the scope of relief does not apply to a final judgment here. It is six pages, signed by the states' attorneys general offices, with a certificate of service.

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Case: 4:21-cv-01300-DDN Doc. #: 31 Filed: 12/15/21 Page: 1 of 6 PageID #: 1048




                       IN THE UNITED STATES DISTRICT COURT
                      FOR THE EASTERN DISTRICT OF MISSOURI
                                 EASTERN DIVISION

   STATE OF MISSOURI,
   STATE OF NEBRASKA,
   STATE OF ALASKA,
   STATE OF ARKANSAS,
   STATE OF IOWA,
   STATE OF MONTANA,                                   No. 4:21-cv-01300
   STATE OF NEW HAMPSHIRE,
   STATE OF NORTH DAKOTA,
   STATE OF SOUTH DAKOTA,
   STATE OF WYOMING,

                   Plaintiffs,

      v.

   JOSEPH R. BIDEN, et al.,

                   Defendants.


               PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY

       On December 15, 2021, after supplemental briefing concluded in this case, the Fifth Circuit

Court of Appeals issued an order in Louisiana et al. v. Becerra et al., No. 21-30734 (Dec. 15,

2021) (attached as Exhibit A), concerning the Federal Government’s request to stay the Western

District of Louisiana’s nationwide preliminary injunction barring enforcement of the CMS vaccine

mandate. In it, the Fifth Circuit concluded that in light of the major questions doctrine, the Federal

Government had not “made a strong showing of likely success on the merits” of its argument that

Congress had provided the agency with authority under the relevant Medicare and Medicaid

statutes to issue a vaccine mandate for Medicare and Medicaid providers. See Louisiana, slip op.,

at 2–3. Furthermore, the Fifth Circuit came to that conclusion despite the Federal Government’s




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Case: 4:21-cv-01300-DDN Doc. #: 31 Filed: 12/15/21 Page: 2 of 6 PageID #: 1049




argument that “Medicare and Medicaid were enacted under the Spending Clause rather than the

Commerce Clause.” Id. at 3.

       The Fifth Circuit’s order (like a plethora of other decisions involving vaccine mandates,

including the contractor mandate, and similar federal COVID-19 regulations) underscores that

vaccine mandates, like the contractor mandate, implicate the major questions doctrine and so

cannot be imposed absent a clear statement from Congress—a clear statement which does not exist

here. See ECF 28, at 12–14; see also ECF 23, at 3–4; ECF 9, at 21–25. It also highlights the

doctrine’s applicability even in the federal spending context. And while the Fifth Circuit’s order

suggests that its conclusion is “a close call,” that conclusion derives in part from the court’s view

that the CMS mandate “targeted health care facilities, especially nursing homes, ... where COVID-

19 has posed the greatest risk.” Louisana, slip op., at 3. Whatever the merits of that view, the

contractor mandate is clearly the opposite of targeted. See, e.g., ECF 28, at 9 (discussing the

mandate’s breadth, including the fact it applies to those “who pose little COVID-19 risk”).

       Finally, while the Fifth Circuit did limit the scope of relief to the states that brought suit,

see slip op., at 5, that is not relevant here because the Fifth Circuit was addressing the propriety of

a nationwide preliminary injunction while, in this case, the Court is issuing a final judgment, which

would involve vacatur of the agency actions creating the contractor mandate. See ECF 28, at 17.




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Case: 4:21-cv-01300-DDN Doc. #: 31 Filed: 12/15/21 Page: 3 of 6 PageID #: 1050




Dated: December 15, 2021                      Respectfully submitted,

DOUGLAS J. PETERSON                           ERIC S. SCHMITT
Attorney General of Nebraska                  Attorney General of Missouri

/s/ James A. Campbell                         /s/ Michael E. Talent
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




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Case: 4:21-cv-01300-DDN Doc. #: 31 Filed: 12/15/21 Page: 4 of 6 PageID #: 1051




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

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




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Case: 4:21-cv-01300-DDN Doc. #: 31 Filed: 12/15/21 Page: 5 of 6 PageID #: 1052




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




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Case: 4:21-cv-01300-DDN Doc. #: 31 Filed: 12/15/21 Page: 6 of 6 PageID #: 1053




                                 CERTIFICATE OF SERVICE

       I hereby certify that, on December 15, 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/ Michael E. Talent




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