Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 033 Att 0

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Defendants' Response to Plaintiffs' Notice of Supplemental Authorities 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, filed December 17, 2021 as Doc. 33. The two-page response, filed by U.S. Department of Justice trial attorneys, answers the notices at ECF Nos. 30 & 31 concerning two Fifth Circuit decisions and asks the Court to ignore the additional argument plaintiffs submitted with them. It argues that Texas v. Biden does not bear on the case because the November OMB Determination rescinded the September Determination, leaving Missouri's claims against it moot. It also argues that the order in Louisiana v. Becerra does not compel judgment for plaintiffs on their request for relief under Rule 65(a)(2).

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Case: 4:21-cv-01300-DDN Doc. #: 33 Filed: 12/17/21 Page: 1 of 2 PageID #: 1082




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

 STATE OF MISSOURI, et al.,
                      Plaintiffs,
               v.                                            No. 4:21-cv-01300-DDN
 JOSEPH R. BIDEN, et al.
                      Defendants.

                          DEFENDANTS’ RESPONSE
           TO PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITIES
        Defendants file this response to the two notices of supplemental authority that Plaintiffs

filed, ECF Nos. 30 & 31, regarding two decisions from the Fifth Circuit regarding statutes not at

issue in this case. Along with the opinions, Plaintiffs improperly submitted a total of five addi-

tional pages of argument. The Court should ignore Plaintiffs’ improper and untimely argument.

But to the extent the Court considers Plaintiffs’ submissions, Defendants respond as follows.

       Defendants disagree that the Fifth Circuit’s opinion Texas v. Biden has any bearing on this

case. In that case, a district court had vacated the original Department of Homeland Security

(DHS) Memorandum, and the government appealed that order. ECF No. 30-1 at 30–31. While

that appeal was pending, DHS issued a new Memorandum purporting to rescind the old Memo-

randum. Id. As the Fifth Circuit explained, since the original Memorandum had already been

vacated by the district court, “there was nothing to rescind” and the new Memorandum was a

nullity. Id. at 31. The facts in this case are quite different for the simple reason that when the

OMB Director issued her November Determination, the September Determination was still in

force. Thus, the November OMB Determination’s rescission and revocation had full effect. If

anything, Texas v. Biden, emphasizes why enjoining the September OMB Determination would

be improper—the September Determination has been revoked, has been rescinded, and is no longer

the operative determination. In short, there is nothing to vacate and Missouri’s claims against the

September Determination are plainly moot.
Case: 4:21-cv-01300-DDN Doc. #: 33 Filed: 12/17/21 Page: 2 of 2 PageID #: 1083




       Meanwhile, the Fifth Circuit’s cursory, six-page order in Louisiana v. Becerra, ECF No.

31-1, regarding the federal government’s motion to stay a district court’s nationwide injunction

against a vaccine requirement imposed by the Department of Health and Human Services as a

condition of Medicare and Medicaid funding for health care facilities, does not compel judgment

in favor of Plaintiffs. Rather, the Fifth Circuit noted that it was a “close call” whether the federal

government would ultimately prevail on appeal because “[t]he Secretary identifies meaningful

distinctions between its rule for Medicare and Medicaid-funded facilities and the broader OSHA

rule” that the Fifth Circuit preliminarily enjoined in an earlier ruling. Id. at 3. The court also nar-

rowed the scope of the district court’s nationwide injunction to the plaintiff states. Id. at 5–6.

       In sum, neither of these cases changes has any bearing on whether this Court should deny

Plaintiffs’ request for relief under Rule 65(a)(2).


DATED: December 17, 2021                       Respectfully submitted,

                                               BRIAN M. BOYNTON
                                               Acting Assistant Attorney General

                                               BRAD P. ROSENBERG
                                               Assistant Director

                                               /s/ Vinita B. Andrapalliyal
                                               ZACHARY A. AVALLONE
                                               VINITA ANDRAPALLIYAL
                                               Trial Attorneys
                                               U.S. Department of Justice
                                               Civil Division, Federal Programs Branch
                                               1100 L Street NW
                                               Washington, D.C. 20005
                                               (202) 305-0845
                                               Vinita.b.andrapalliyal@usdoj.gov

                                               Counsel for Defendants




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