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IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AMERICA’S FRONTLINE
DOCTORS, et al,
Plaintiffs,
v.
The UNITED STATES OF AMERICA,
et al,
Defendants.
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Case No. 2:21-cv-702-CLM
PLAINTIFFS’ REPLY TO DEFENSE MOTION TO DISMISS
Come now the Plaintiffs, through their undersigned counsel, and respectfully
submit the following as a reply to the Defendants’ motion to dismiss the amended
complaint filed herein.
SUMMARY
This case is based upon recent events. In December, 2020, the HHS Secretary
began the process for approving 3 COVID-19 vaccines, one produced by Pfizer, Inc.,
another by Johnson & Johnson/Janssen, and the last by Moderna. At first, public
officials sought to persuade Americans to voluntarily “take the jab,” but President
Biden changed his mind on September 9, 2021, and issued two Executive Orders,
Executive Order 14042 (“EO 14042”, ECF 37-1) and Executive Order 14043 (“EO
14043”, ECF 37-2) that provided the legal foundation for other “requirements” to
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FILED
2022 Jan-07 PM 11:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:21-cv-00702-CLM Document 43 Filed 01/07/22 Page 1 of 29
address and hopefully remedy the current COVID-19 pandemic. Based on these
Executive Orders, the Safer Federal Workforce Task Force (“SFWTF”) has
promulgated several “Guidelines” applicable to federal civilian employees as well as
employees of government contractors that dictate vaccines, mask wearing, and “social
distancing.” Further, deadlines have been set regarding when these employees must
be vaccinated, must wear masks in certain situations, and must engaged in “social
distancing.” These requirements were in place when the Plaintiffs amended complaint
(ECF 32-1) was filed herein.
Plaintiffs Joseph Makowski, Lyle Bloom, Ellen Millen, Jody Sobczak, Michael
Nelson and Joseph Leahy work for either government agencies or government
contractors, and these employers have set conditions for further employment: they
must get vaccinated, or in lieu thereof, they must submit and obtain an
“accommodation” in lieu of vaccination. Furthermore, especially if they get an
accommodation, they must wear masks and engage in social distancing.
This reply addresses just the circumstances of three of the Plaintiffs, Joseph
Makowski (who is employed by a government contractor), Michael Nelson and
Joseph Leahy (who both are employed by a government agency, NASA). All three
of these Plaintiffs have been required to comply with the dictates of the several
Guidelines issued by the SFWTF. They have been required to submit paperwork to
their employers in order to secure an accommodation. Makowski has been granted an
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accommodation, but Nelson and Leahy have not. But the important fact relevant here
is that these Plaintiffs (as well as the others) are currently experiencing the
implementation of the above mentioned Executive Orders and the Guidelines based
thereon. Because the Plaintiffs are so being subjected to these mandates, they have
the constitutional standing to maintain this lawsuit.
The defense contends otherwise and challenges by means of their motion the
Plaintiffs standing. The argument of the defense is perhaps imaginative, but it is still
incorrect. By rephrasing the factual basis for the Plaintiffs standing and limiting it to
just a complaint about being forced to take vaccines, the defense asserts that standing
for the Plaintiffs is absent and consequently their amended complaint must be
dismissed.
But this is a flawed argument best demonstrated and exposed by means of a
hypothetical illustration. Suppose that a criminal defendant had been convicted of a
heinous crime and sentenced to be “shot at dawn.” In the early morning of the day of
execution, some deputies go to the jail but drag out the wrong party, a man simply
awaiting trial for shop-lifting, and it is this man who gets executed.
The defense’s argument about standing leads to some illogical and improper
conclusions. Suppose in the above example, the lawyer for the man about to be shot
files a lawsuit in the local court attempting to enjoin the execution of his client. The
argument of the defense that is asserted here would, in this hypothetical example, be
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that an injunction could not be granted to stop the execution of the wrong man who
lacked standing. Moreover, the defense contends that the only remedy in a case like
this fictitious example is a lawsuit by the executed man’s estate for wrongful death.
However, such a plaintiff need not wait for “Damocles’s sword ... to actually fall on”
him “before the court will issue an injunction.” League of Women Voters of U.S. v.
Newby, 838 F.3d 1, 8–9 (D.C. Cir. 2016).
THE PLAINTIFFS DO HAVE STANDING
President Biden’s EO 14042 is applicable to government contractors and their
employees, and it directed the SFWTF to issue a “Guidance” that would mandate that
the contracts of the federal government with private contractors be amended to
include provisions compelling several measures to address the current COVID-19
pandemic. The foundation for these measures was set forth in EO 14042:
Section 1. Policy. This order promotes economy and efficiency in Federal
procurement by ensuring that the parties that contract with the Federal
Government provide adequate COVID–19 safeguards to their workers
performing on or in connection with a Federal Government contract or
contract-like instrument as described in section 5(a) of this order. These
safeguards will decrease the spread of COVID–19, which will decrease worker
absence, reduce labor costs, and improve the efficiency of contractors and
subcontractors at sites where they are performing work for the Federal
Government. Accordingly, ensuring that Federal contractors and
subcontractors are adequately protected from COVID–19 will bolster economy
and efficiency in Federal procurement.
Sec. 2. Providing for Adequate COVID–19 Safety Protocols for Federal
Contractors and Subcontractors. (a) Executive departments and agencies,
including independent establishments subject to the Federal Property and
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Administrative Services Act, 40 U.S.C. 102(4)(A) (agencies), shall, to the
extent permitted by law, ensure that contracts and contract-like instruments (as
described in section 5(a) of this order) include a clause that the contractor and
any subcontractors (at any tier) shall incorporate into lower-tier subcontracts.
This clause shall specify that the contractor or subcontractor shall, for the
duration of the contract, comply with all guidance for contractor or
subcontractor workplace locations published by the Safer Federal Workforce
Task Force (Task Force Guidance or Guidance), provided that the Director of
the Office of Management and Budget (Director) approves the Task Force
Guidance and determines that the Guidance, if adhered to by contractors or
subcontractors, will promote economy and efficiency in Federal contracting.
The current Task Force “Guidance” that implements EO 14042 is dated
November 10, 2021,1 and relevant provisions thereof provides:
Pursuant to this Guidance, and in addition to any requirements or workplace
safety protocols that are applicable because a contractor or subcontractor
employee is present at a Federal workplace, Federal contractors and
subcontractors with a covered contract will be required to conform to the
following workplace safety protocols:
1. COVID-19 vaccination of covered contractor employees, except in limited
circumstances where an employee is legally entitled to an accommodation;
2. Compliance by individuals, including covered contractor employees and
visitors, with the Guidance related to masking and physical distancing while
in covered contractor workplaces; and
3. Designation by covered contractors of a person or persons to coordinate
COVID-19 workplace safety efforts at covered contractor workplaces.
Thus, this Guidance compels government contractors to perform the following
in reference to their employees: (1) require “COVID-19 vaccination of covered
contractor employees”; (2), in lieu of compelling a vaccination, establish procedures
1 See:
https://www.saferfederalworkforce.gov/downloads/Guidance%20for%20Federal%
20Contractors_Safer%20Federal%20Workforce%20Task%20Force_20211110.pdf
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wherein those employees who are “legally entitled to an accommodation” may obtain
such, and (3) establish procedures for “masking and physical distancing while in
covered contractor workplaces.” If employees of government contractors are being
subjected to any of these three requirements, it is clear that the employer contractor
is implementing this Guidance required by EO 14042.
Although having a different foundation and basis, civilian employees of the
United States confront a similar mandate. EO 14043 likewise, although more directly,
imposes a vaccine mandate. EO 14043, titled “Requiring Coronavirus Disease 2019
Vaccination for Federal Employees,” provides:
Section 1. Policy. It is the policy of my Administration to halt the spread of
coronavirus disease 2019 (COVID–19). . . The Centers for Disease Control and
Prevention (CDC) within the Department of Health and Human Services has
determined that the best way to slow the spread of COVID–19 and to prevent
infection by the Delta variant or other variants is to be vaccinated. . . I have
determined that to promote the health and safety of the Federal workforce and
the efficiency of the civil service, it is necessary to require COVID–19
vaccination for all Federal employees, subject to such exceptions as required
by law.
Sec. 2. Mandatory Coronavirus Disease 2019 Vaccination for Federal
Employees.
Each agency shall implement, to the extent consistent with applicable law, a
program to require COVID–19 vaccination for all of its Federal employees,
with exceptions only as required by law.
Again, a SFWTF Guidance that relates to the mandates of EO 14043 for federal
civilian employees has been promulgated. This Guidance (posted on several different
places on the Internet) provides as follows:
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Vaccination Requirements for Federal Employees.
Q: By what date do Federal employees need to be fully vaccinated?
A: Federal employees need to be fully vaccinated by November 22, 2021.
Employees will be considered fully vaccinated for COVID-19 2 weeks after
they have received the requisite number of doses of a COVID-19 vaccine
approved or authorized for emergency use by the U.S. Food and Drug
Administration or that has been listed for emergency use by the World Health
Organization. For Pfizer-BioNTech, Moderna, or AstraZeneca/Oxford, that is
2 weeks after an employee has received the second dose in a 2-dose series. For
Johnson and Johnson (J&J)/Janssen, that is 2 weeks after an employee has
received a single-dose.2
Vaccinations
Federal Executive Branch employees must be fully vaccinated by November
22, 2021, except in limited circumstances where an employee is legally entitled
to an accommodation, pursuant to E.O. 14043, Requiring Coronavirus Disease
2019 Vaccination for Federal Employees. Employees covered by Executive
Order 14043 who fail to comply with a requirement to be fully vaccinated or
provide proof of vaccination and have neither received an exception nor have
an exception request under consideration, are in violation of a lawful order.
Employees who violate lawful orders are subject to discipline, up to and
including termination or removal.3
Thus, federal civilian employees were required “to be fully vaccinated by
November 22, 2021” unless they are “legally entitled to an accommodation.” One
requirement of EO 14043 and the Guidance applied to those who decided to refuse
a vaccination and chose to pursue “an accommodation.” Two of the Plaintiffs here,
Nelson and Leahy, work for NASA and are currently seeking an accommodation.
2 See: https://www.saferfederalworkforce.gov/faq/vaccinations/
3 See:
https://www.hhs.gov/about/agencies/asa/hhs-covid-19-workplace-safety-plan/inde
x.html
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“To have standing under Article III, a plaintiff ‘must have suffered or be
imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly
traceable to the challenged action of the defendant and likely to be redressed by a
favorable judicial decision.” Wollschlaeger v. Governor, 848 F.3d 1293, 1303-04
(11th Cir. 2017).4 The Plaintiffs in this case have clearly plead sufficient facts to
show they have standing to maintain this suit: they have suffered or confront
immediately an “injury,” that is traceable to the actions of the President, and this court
can certainly redress this wrong by a favorable decision.
Plaintiffs Joseph Makowski, Lyle Bloom, Ellen Millen, Jody Sobczak, Michael
Nelson and Joseph Leahy are employed by either private companies that have
government contracts or are actually federal civilian employees. This vaccine
mandate at issue in this case was imposed by the President and his agent, the SFWTF.
But neither the President or the SFWTF are actually implementing the requirements
of these Executive Orders and Guidances on the Plaintiffs. Regarding Joseph
Makowski, these requirements are being imposed by his employer, Phoenix
Industries; for Lyle Bloom, they are being imposed by his employer, Cummings
Aerospace; for Ellen Millen, they are being imposed by her employer, Raytheon
Technologies; for Jody Sobczak, they are being imposed by his employer, The Boeing
4 See also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
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Company; for Michael Nelson and Joseph Leahy, they are being imposed by NASA,
their employer. But, standing for these parties is not affected when the harm they
suffer has been caused by third parties such as these employers.
“The Supreme Court’s decisions on this point show that mere indirectness of
causation is no barrier to standing, and thus, an injury worked on one party by another
through a third party intermediary may suffice.” National Wildlife Federation v.
Hodel, 839 F.2d 694, 705 (D.C. Cir. 1988).5 See also Bristol-Myers Squibb Co. v.
Shalala, 91 F.3d 1493, 1499 (D.C. Cir. 1996)(“injurious private conduct is fairly
traceable to the administrative action contested in the suit if that action authorized the
conduct or established its legality”); Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d
449, 457-58 (D.C. Cir. 1998)(party had standing to challenge government action
based on the independent conduct of third parties where evidence demonstrated that
the challenged action “resulted in an almost unanimous decision” by those third
parties to take action); America’s Community Bankers v. FDIC, 200 F.3d 822, 827
(D.C. Cir. 2000)(“an agency does not have to be the direct actor in the injurious
conduct, but that indirect causation through authorization is sufficient to fulfill the
causation requirement for Article III standing.”); Consumer Federation of America
5 See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 45 n.25
(1976) (noting cases providing that privately inflicted injury is traceable to
government action if the injurious conduct “would have been illegal without that
action”).
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v. F.C.C., 348 F.3d 1009, 1012 (D.C. Cir. 2003)(“When an agency order permits a
third-party to engage in conduct that allegedly injures a person, the person has
satisfied the causation aspect of the standing analysis.”); Telephone and Data
Systems, Inc. v. FCC, 19 F.3d 42, 47 (D.C. Cir. 1994)(“injurious private conduct is
fairly traceable to the administrative action contested in the suit if that action
authorized the conduct or established its legality.”); and Competitive Enter. Inst. v.
Nat’l Highway Traffic Safety Admin., 901 F.2d 107, 113-18 (D.C. Cir. 1990) (finding
“overwhelming evidence” in the administrative record to support a conclusion that
third parties’ decisions were not substantially independent of the challenged
government action and that those third parties were likely to alter their behavior in
response to favorable judicial action).
Here, causation is clear and directly arises from the implementation of EO
14042 and EO 14043 by the Plaintiffs’ employers. For example, Plaintiff Millen
works for Raytheon Technologies. Via a document dated December 9, 2021, titled
“Frequently Asked Questions: COVID-19 Health and Safety Updates,” Raytheon
posed several common questions asked by its employees and provided answers
thereto:
6. I live in a U.S. state that prohibits mandating COVID-19 vaccinations. Does
this policy apply to me?
Yes. In every U.S. state, irrespective of state law, the company must comply
with its obligations under federal Executive Order 14042, which requires
federal contractors to ensure that all employees working on or in connection
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with covered federal contracts, including those working remotely or at a
covered contractor workplace, are fully vaccinated by Jan. 18, 2021. These
requirements have been promulgated pursuant to federal law and supersede any
contrary state or local law ordinance.
See attached Ex. 1.
But, what about the problem of imminent harm? For declaratory relief, the
Plaintiffs must “allege facts from which it appears there is a substantial likelihood
that he will suffer injury in the future,” and that injury must be “real,” “immediate,”
and “definite.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “When a party
brings a pre-enforcement challenge to a statute, regulation or ordinance, the federal
court must ask whether ‘the conflicting parties present a real, substantial controversy
which is definite and concrete rather than hypothetical and abstract.’ * * * In order
to prove that a real and substantial controversy exists, * * *, a plaintiff must show ‘a
realistic danger of sustaining direct injury as a result of the statute’s operation or
enforcement.’ * * * When a plaintiff has stated that he intends to engage in a specific
course of conduct ‘arguably affected with a constitutional interest,’ however, he does
not have to expose himself to enforcement to be able to challenge the law. * * * ‘If
the injury is certainly impending, that is enough.’” Am. Civil Liberties Union v. The
Fla. Bar, 999 F.2d 1486, 1491 (11th Cir. 1993). See also Robinson v. Attorney
General, 957 F.3d 1171, 1177 (11th Cir. 2020). Moreover, even small injuries
provide standing. See Losch v. Nationstar Mortg. LLC, 995 F.3d 937, 943 (11th Cir.
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2021)(“Losch has shown a concrete injury in the form of the emotional distress and
time he spent contesting the inaccurate information.”).
The defense takes issue with apparent omissions in the amended complaint ,and
claims that the Plaintiffs have avoided taking any vaccine which falls short of
showing standing. But, this is not a problem at all because it is clear that they have
engaged in self-avoidance of imminent harm they fear can be caused by the vaccines.
“Supreme Court jurisprudence is more rare regarding application of the Declaratory
Judgment Act to situations in which the plaintiffs self-avoidance of imminent injury
is coerced by threatened enforcement action of a private party rather than the
government. Lower federal courts, however (and state courts interpreting
declaratory-judgment acts requiring ‘actual controversy’), have long accepted
jurisdiction in such cases.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007).
The Plaintiffs in this case have certainly suffered injuries. For example,
Plaintiff Joseph Makowski was vaccine injured as a child. When he became old
enough to work, he got a job with Phoenix Industries, which is a company located in
Huntsville that provides job for the handicapped. Phoenix has a contract to provide
janitorial services for government buildings located on Redstone Arsenal. When EO
14042 became effective, Phoenix informed its employees, including Makowski, about
the requirement to get vaccinated. Upon being so informed, Makowski became very
alarmed and concerned because he believed that he could be further harmed by
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another vaccine. Makowski and his father then consulted with Plaintiff Dr.
Calderwood, who after interviewing Makowski, adamantly stated he should not get
vaccinated.
Thereafter, Makowski consulted a company in Denver named Disabled Rights
Advocates, PLLC, about his rights under the Americans With Disabilities Act. By
letter dated November 17, 2021, Makowski was informed that he should seek an
accommodation from his employer. Following this advice, on November 21, 2021,
Makowski submitted to his employer a request for a medical accommodation, which
was granted on November 29. However, his request for an exemption from masking
requirements and testing was not approved. Currently, Makowski is concerned that
he still may be subjected in the future to another vaccine mandate, and wearing masks
at work is particularly bothersome. Further, the weekly testing consumes his time and
also causes inconvenience, stress and fear.
Plaintiff Michael Nelson has worked for NASA for 39 years and really enjoys
his job. In early October, he was informed by his superiors about the vaccine mandate
that would be effective on November 22, 2021. After inquiries, he learned that he
could submit a request for a religious accommodation, and he submitted one on
October 15, 2021. Currently, that request is under review, although NASA has
requested that he supply additional information to justify his request.
But because Nelson is not vaccinated and has requested a religious
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accommodation, the environment in which he works has decidedly changed. He must
wear masks at meetings, engage in social distancing, and is ostracized by his fellow
workers because he is not vaccinated and is seeking a religious accommodation. But
for the ramifications of EO 14043 and the applicable Guideline, Nelson would not
have had to investigate how to secure a vaccine exemption, draft and present such to
his superiors, and deal with everything that has followed, all of which has consumed
a substantial amount of time. Further, he is concerned that even though he has
requested an exemption, it may be denied and he may very well lose his job. In
summary, the imposition of the vaccine mandate has required him to devote time to
addressing this requirement, and in any event, he may eventually be terminated, all
of which causes serious concerns. Clearly, the imposition of the requirements dictated
by EO 14043 and the applicable Guideline have been felt by Nelson.
Parties objecting to the vaccine and related mandates solely on religious
grounds have been found to have proper standing to institute suit. On January 3,
2022, Judge Reed O’Connor in the Northern District of Texas, Fort Worth Division,
in a case styled U.S. Navy Seals v. Biden, Case No. 4:21-cv-01236-O, entered an
injunction in that case. The plaintiffs there established their standing based on the fact
that they had submitted requests for religious accommodations. If standing was
upheld in that case, it should similarly be recognized here.
Both Makowski and Nelson have suffered injuries no different from those
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found valid in Losch v. Nationstar Mortg. LLC, supra. If there is need for further
clarification and pleading in the amended complaint in this respect, the particulars
noted above may be added to ¶¶ 15 and 19 of the amended complaint. Further, the
other Plaintiffs have had similar experiences, which can also be recounted in
amendments to various paragraphs of the amended complaint related to them.
The defense also asserts that the imposition of a vaccine requirement, the
wearing of masks or periodic testing to retain a job is inconsequential. But, the
“unconstitutional conditions doctrine” prohibits the government from conditioning
continued employment “on a basis that infringes [] constitutionally protected interests
. . .” Perry v. Sindermann, 408 U.S. 593, 597 (1972). “[T]he very purpose of the
unconstitutional conditions doctrine is to prevent the government from subtly
pressuring citizens, whether purposely or inadvertently, into surrendering their
rights.” Lebron v. Secretary, Florida Dept. of Children and Families, 710 F.3d 1202,
1218 (11th Cir. 2013) (quoting Bourgeois v. Peters, 387 F.3d 1303, 1324-25 (11th
Cir. 2004)).
Any employee who is forced to choose between retaining a job on the condition
of submitting to an experimental vaccine or being terminated from their employment
is being given an ultimatum, not a choice. The threat of termination of employment
is, by nature, coercive. See, e.g., Am. Fed’n of State, County & Mun. Employees
Council 79 v. Rick Scott, 717 F.3d 851, 874 (11th Cir. 2013) (“In effect, the State is
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offering its employees this Hobson’s choice: either they relinquish their Fourth
Amendment rights and produce a urine sample which carries the potential for
termination, or they accept termination immediately. * * * To begin with, we do not
agree that employees’ submission to drug testing, on pain of termination, constitutes
consent under governing Supreme Court case law”). Employees who must submit to
taking a vaccine or be fired are hardly acting voluntarily, free of either express or
implied duress and coercion. See Bostic v. McClendon, 650 F.Supp. 245, 249
(N.D.Ga.1986); cf. Garrity v. New Jersey, 385 U.S. 493, 497–98 (1967) (holding that
the government cannot require its employees to relinquish their Fifth Amendment
rights on pain of termination because “[t]he option to lose their means of livelihood
or to pay the penalty of self-incrimination” was “the antithesis of free choice”).
The defense argument that the Executive Orders will not force the Plaintiffs “to
take a shot against their will” falls short as it fails to acknowledge the result of not
taking the shot. The defense claims that the Plaintiffs have the “choice” to refuse the
shot and face termination. Being forced to choose between taking a COVID vaccine
or termination of employment is no choice at all.
The contentions of the defense that the Plaintiffs lack standing to maintain this
suit are without foundation.
THE MERITS OF THE COUNTS IN THE AMENDED COMPLAINT
A. The President as a Defendant.
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Presidents have been made defendants in litigation, and some of the reported
cases include Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974);
TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 96 (D.D.C. 2020); Gomez v. Trump, 485
F. Supp. 3d 145, 165, 205 (D.D.C. 2020). And some courts have approved judgments
against the President. Clinton v. City of New York, 524 U.S. 417, 425 n.9 (1998);
CREW v. Trump, 302 F. Supp. 3d 127, 139 n.5 (D.D.C. 2018). No federal official,
from the highest to the lowest, is above the law. United States v. Nixon, 418 U.S. 683,
715 (1974).
In Nat’l Treasury Emps. Union, supra, that court concluded that the President,
in reference to a ministerial act, could be subjected to a suit for declaratory relief:
“This case presents a most appropriate instance for the use of a declaratory decree.
Accordingly, we confine ourselves at this time to a declaration of the law, that is, that
the President has a constitutional duty forthwith to grant, effective as of October,
1972, the federal pay increase mandated by the Congress and sought by NTEU herein
so that the members of NTEU can collect what has been due them for many months.”
Id., at 616. Plaintiffs here seek declaratory relief, but not for a ministerial act.
Since the onset of this COVID-19 pandemic, and especially since September
9 of last year, a number lawsuit have been filed making the President a defendant. It
appears that the reason for doing so is because declaratory relief has been sought in
those cases. In this case, the President is not an essential party and the United States
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is a party here. For this reason, the Plaintiffs do not object to releasing the President
as a defendant.
B. The Merits of Count I.
Whether there is an emergency some place in America is a matter seldom
litigated, primarily because there have been few of them. Nonetheless, the Supreme
Court has addressed the question of whether an emergency exists in at least 3 prior
decisions: Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924); Sterling v. Constantin,
287 U.S. 378 (1932); and Home Building and Loan Association v. Blaisdell, 290 U.S.
398 (1934). That Court considers the question of whether an emergency exists as a
proper matter for judicial inquiry. This question is directly raised in this count.
The defense contends that this question of the existence of an emergency
related to the COVID-19 pandemic was administratively addressed when the HHS
Secretary or FDA was considering this issue in relation to the grant of EUAs for the
vaccines in current use. For this reason, the defense argues that nobody contested this
issue administratively, agency officials exercised their discretion, and then
determined that an emergency existed.
Plaintiffs contend, however, that whether an emergency exists is not a matter
committed to the discretion of any agency, and is a matter that a court can determine
at any time when raised in litigation. This count is therefore valid and not due to be
dismissed.
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C. The Merits of Count VI.
This count challenges EO 14042 and EO 14043 as being invalid and unlawful
because the President lacks the statutory authority to issue them. While the defense
broadly asserts that the President does have authority to issue them, that claim is
questionable because within the last several months, a number of other district courts
have concluded otherwise. See Missouri v. Biden, No. 4:21-cv- 01329-MTS, 2021
U.S. Dist. LEXIS 227410 (E.D. Mo. Nov. 29, 2021); Louisiana v. Becerra, No.
3:21-CV-03970, 2021 U.S. Dist. LEXIS 229949 (W.D. La. Nov. 30, 2021); Louisiana
v. Becerra, No. 21-30734, 2021 U.S. App. LEXIS 37035 (5th Cir. Dec. 15, 2021);
Georgia v. Biden, No. 1:21-cv-163, 2021 U.S. Dist. LEXIS 234032 (S.D. Ga. Dec.
7, 2021); and Florida v. Nelson, No. 8:21-cv-2524-SDM-TGW, 2021 U.S. Dist.
LEXIS 246185 (M.D. Fla. Dec. 22, 2021). On January 1, 2022, Judge Terry Doughty
entered another similar order in a case styled Louisiana v. Becerra, Case No. 3:21-cv-
0437, U.S. District Court for the Western District of Louisiana.
District Judge Tatenhove posed this interesting question in response to a
similar motion for a preliminary injunction seeking to enjoin implementation of EO
14042: “Can the president use congressionally delegated authority to manage the
federal procurement of goods and services to impose vaccines on the employees of
federal contractors and subcontractors?” He answered: “In all likelihood, the answer
to that question is no.” See Commonwealth of Kentucky v. Biden, No.
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3:21-cv-00055-GFVT, 2021 U.S. Dist. LEXIS 228316 (E.D. Ky. Nov. 30, 2021).
In reference to the recent OSHA vaccine mandate,6 the Fifth Circuit has held
such to be invalid in BST Holdings, LLC v. Occupational Safety and Health Admin.,
17 F.4th 604 (5th Cir. 2021):
Second, concerns over separation of powers principles cast doubt over the
Mandate’s assertion of virtually unlimited power to control individual conduct
under the guise of a workplace regulation. As Judge Duncan points out, the
major questions doctrine confirms that the Mandate exceeds the bounds of
OSHA’s statutory authority. Congress must “speak clearly if it wishes to assign
to an agency decisions of vast economic and political significance.” Util. Air
Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (cleaned up). The Mandate
derives its authority from an old statute employed in a novel manner, imposes
nearly $3 billion in compliance costs, involves broad medical considerations
that lie outside of OSHA’s core competencies, and purports to definitively
resolve one of today’s most hotly debated political issues. Cf. MCI Telecomms.
Corp. v. AT&T, 512 U.S. 218, 231 (1994) (declining to hold that the FCC could
eliminate telecommunications rate-filing requirements); FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000) (declining to hold
that the FDA could regulate cigarettes); Gonzales v. Oregon, 546 U.S. 243, 262
(2006) (declining to allow DOJ to ban physician-assisted suicide). There is no
clear expression of congressional intent in § 655(c) to convey OSHA such
broad authority, and this court will not infer one. Nor can the Article II
executive breathe new power into OSHA’s authority – no matter how thin
patience wears.
There have been profound consequences as a result of the Fifth Circuit’s
holding in BST Holdings. Last Fall, there were a number of petitions to challenge
those OSHA regulations filed in the U.S. Courts of Appeal around the country like
that involving BST Holdings, and they have been consolidated into one case pending
6 See 86 Fed.Reg. 61402 (Nov. 5, 2021).
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in the Sixth Circuit. A panel of that court recently vacated the stay imposed by the
Fifth Circuit, and now a large number of petitions have been filed with the Supreme
Court to challenge the Sixth Circuit’s vacatur of the Fifth Circuit’s stay. See Case
Nos. 21A240 through 21A260.7 Today, the U.S. Supreme Court heard those petitions,
and Justices Roberts and Kavanaugh made statements during argument that at least
indicated that something such as stay might be issued shortly.
To demonstrate the merits of this count and to assist the court, Plaintiffs attach
a series of exhibits. EO 14042 claims that it is authorized via 3 U.S.C. §301 and 40
U.S.C. §101, et seq. These statutes DO NOT provide authority for this Executive
Order.
In 1926, Congress created the United States Code with its then 50 titles, and
that Code included a Title 3, which did not include this §301. On June 25, 1948,
Congress enacted Title 3 into positive law. See An Act To codify and enact into law
Title 3 of the United States Code, 62 Stat. 672, ch. 644. This title at that time had no
§301.
On October 31, 1951, §301 of this title was inserted therein via Pub. L. 248,
7 As amici curiae, 183 members of Congress have submitted a brief in Case No.
No. 21A244 wherein they similarly argue that Congress never delegated authority to
OSHA to impose vaccine mandates. See:
https://www.supremecourt.gov/DocketPDF/21/21A244/207079/20211230171756
458_MOC%20Amicus%20FINAL.pdf
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65 Stat. 710, ch. 655. This 20 page act had nothing to do with vaccines or authorizing
the President to impose vaccines. Consequently, §301 does not provide the statutory
foundation for this Executive Order.
EO 14042 also asserts that 40 U.S.C. §101, and possibly other provisions of the
Federal Property and Administrative Services Act provide the statutory foundation
for a vaccine mandate.8 But, nothing in Title 40 remotely indicates that the President
is authorized to impose vaccine mandates.
In 1926, Congress codified most of the federal laws and thus created Title 40
of the U.S. Code. The 1926 version of this title was only 22 pages long, and the
President was mentioned only 23 times therein. The 1940 version of title 40, U.S.
Code, was only 63 pages long and the President was mentioned therein only 59 times.
In the 1952 version of 40 U.S.C.9 (which was 127 pages long), the President was
mentioned only 64 times. In title 40 of the 1964 U.S. Code (which was 151 pages
long), the President was mentioned only 98 times. The 1996 version of this title was
8 40 U.S. Code was enacted into positive law in August, 2002. See Pub. L.
107–217, 116 Stat. 1062. The legislative report for this codification, House Report
107–479, 107th Congress, 2d Session, made clear that the act made no substantive
changes in the law. Stewart v. Kahn, 78 U.S. 493, 502 (1871)(“A change of language
in a revised statute will not change the law from what it was before unless it be
apparent that such was the intention of the legislature.”).
9 The “Federal Property and Administrative Services Act of 1949” was enacted
by Congress on June 30, 1949, 63 Stat. 377, ch. 288. It was codified into 40 U.S.C.
and has been subject to a number of amendment ever since.
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316 pages long, and the President was mentioned therein 192 times. The 2003 version
of this title was 219 pages long, and the President was mentioned therein only 132
times. Finally, the latest version of this title published in the 2019 U.S. Code, is 263
pages and the President is mentioned therein 153 times.10
The prior versions of this title were only “evidence of the law,” but on August
21, 2002, this title was enacted into positive law by Pub. L. 107–217, 116 Stat. 1062.
House Report 107-479 related to the enactment of this title and it stated that the
“purpose of the bill [was] to revise, codify, and enact without substantive change the
general and permanent laws of the United States related to public buildings, property,
and works, as as [sic] title 40, United States Code, ‘Public Buildings, Property, and
Works’”.
However, these laws codified in 40 U.S.C. do not provide the President with
authority to impose vaccine mandates, and thus he lacks the statutory as well as
constitutional authority to impose these mandates he may believe will assist in a
speedy resolution of the current COVID-19 crisis.
EO 14043 claims that it is authorized via 5 U.S.C. §§ 3301, 3302, and 7301.
Contrary to the claims of the defense, these statutes DO NOT provide authority for
this Executive Order as shown by the attached exhibits.
10 On request, counsel for the Plaintiffs will provide to the defense or the court
searchable PDF images of these various versions of 40 U.S.C.
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The origin of § 3301 is found in § 9 of “An Act Making Appropriations for
sundry civil Expenses of the Government for the fiscal Year ending June 30, eighteen
hundred and seventy-two, and for other Purposes”, 16 Stat. 495, 514, ch. 114 (see Ex.
2 hereto, pp. 1-4). This section was later incorporated into the Revised Statutes of
1873 as § 1753 (see Ex. 2, pp. 5-7), and thereafter was incorporated into 5 U.S.C. §
631 when the U.S. Code was created in 1926 (Ex. 2, pp. 8-11). See also 5 U.S.C. §
631 in the 1946 U.S. Code (Ex. 2, pp. 12-13). A part of this § 631 became § 3301
when this title of the U.S. Code was enacted into positive law in 1966. See Pub.L. 89-
554, 80 Stat. 378, at 417 (Ex. 2, pp. 14-16).
Section 2 of “An act to regulate and improve the civil service of the United
States”, 22 Stat. 403, ch. 27, enacted by Congress on January 16, 1883, is the genesis
of § 3302 (Ex. 3, pp. 2-3). When the current U.S. Code was created in 1926, parts of
this section were incorporated into 5 U.S.C. § 633 (Ex. 3, pp. 4-6). See also 5 U.S.C.
§ 633 in the 1946 U.S. Code (Ex. 3, pp. 7-11). When this title of the U.S. Code was
enacted into positive law in 1966, this section became § 3302. See Pub.L. 89-554, 80
Stat. 378, at 417 (Ex. 3, pp. 12-16).
The origin of § 7301 is the same as that for § 3301: § 9 of “An Act Making
Appropriations for sundry civil Expenses of the Government for the fiscal Year
ending June 30, eighteen hundred and seventy-two, and for other Purposes”, 16 Stat.
495, 514, ch. 114 (Ex. 4, pp. 1-4). This § 9 was later incorporated into the Revised
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Statutes of 1873 as § 1753 (Ex. 4, pp. 5-7) and was later incorporated into 5 U.S.C.
§ 631 when the U.S. Code was created in 1926 (Ex. 4, pp. 8-11). A single sentence
of § 631 became § 7301 when this title of the U.S. Code was enacted into positive law
in 1966. See Pub.L. 89-554, 80 Stat. 378, at 417 (Ex. 4, pp. 12-15).
These laws were enacted by Congress in 1872 and 1883, and there is absolutely
no proof or indication that at that time Congress intended to authorize the President
by means of these laws to impose vaccine mandates on any or all federal employees.
See Bostock v. Clayton County, 140 S. Ct. 1731, 1737 (2020) (“This Court normally
interprets a statute in accord with the ordinary public meaning of its terms at the time
of its enactment.”).
Because no law authorizes the President to issue these two executive orders,
the Plaintiffs are entitled to judgment in their favor on this count.
D. The Merits of the Other Counts.
The authority of the HHS Secretary and other federal officials to grant EUA
status to the 3 currently FDA approved COVID-19 vaccines is based on 21 U.S.C. §
360bbb-3. Actions taken by agency officials pursuant to this section are subject to the
discretion of these officials. See Heckler v. Chaney, 470 U.S. 821 (1985). When
federal officials and agencies have such discretion, their decisions are not subject to
judicial review.
The defense in this case has presented the administrative record related to the
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approval of these 3 vaccines, and it asserts that the remaining counts in the amended
complaint constitute an invalid attempt to seek judicial review of decisions made by
an agency that are within its sole discretion. However, this is an inaccurate
description of the purpose and objective of these counts. Actions of an agency may
be judicially reviewed for an abuse of discretion or for violations of the law. “In all
cases agency action must be set aside if the action was ‘arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law’ or if the action failed to meet
statutory, procedural, or constitutional requirements.” Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U. S. 402, 413-414 (1971). “The Administrative Procedure
Act requires federal courts to set aside federal agency action that is ‘not in accordance
with law,’ 5 U. S. C. §706(2)(A) – which means, of course, any law, and not merely
those laws that the agency itself is charged with administering.” FCC v. Nextwave
Personal Communications, Inc., 537 U.S. 293, 300 (2003).
Two of the vaccine manufacturers, Pfizer and Johnson & Johnson, are well
aware of the crime of misbranding, proscribed by 21 U.S.C. § 331, as they have been
prosecuted and convicted of this crime (see ECF 37, pp. 20-23). The elements of this
crime are set forth in 21 U.S.C. § 352(j), and encompass the matter of whether a
vaccine or other drug “is dangerous to health when used in the dosage or manner, or
with the frequency or duration prescribed, recommended, or suggested in the labeling
thereof.” See Kordel v. United States, 335 U.S. 345 (1948).
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The attached Ex. 5 is the declaration of Dr. Henry Ealy, which reveals that he
has been analyzing the statistics related to COVID-19 deaths and injuries since the
start of this pandemic. Based on his studies, which includes data derived from the
VAERS data base (among others), it is possible and very realistic to assert that as
many as 427,640 Americans have died as a result of taking the vaccines (see 7th page
of Ealy declaration).
It is fair to presume that the vaccines being used today are better than when
they were first tested by the manufacturers before they were approved by federal
officials. If there has been this number of deaths since the vaccines have been
administered to the American public, the vaccines that were tested before approval
were likely worse, and probably the vaccine manufacturers would have been aware
of this tendency for death and other injuries.11 It is very likely the vaccine
manufacturers knew of the serious danger to the health of vaccine recipients, and the
logical conclusion is that the manufacturers have again committed misbranding.
If these likely events were happening, it is also logical to ask: how much did
federal officials know about this serious problem? But, whether federal officials
merely suspected some problem or were aware of more, the possibility of the
occurrence of what is stated above leads to but one conclusion: the decisions of
11 Vaccines are unavoidably unsafe. See Bruesewitz v. Wyeth LLC, 562 U.S.
223, 234 (2011).
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federal officials in this respect are not clothed with discretion, as discretion has been
abused.
Because of the possibility that serious wrongs have likely been committed, the
defense here cannot assert that judicial review is foreclosed. The defense claim of
discretion, under these circumstances, cannot prevent this case from moving forward.
CONCLUSION
For the reasons shown above, the motion to dismiss of the defense should be
denied.
Respectfully submitted this the 7th day of January, 2022.
/s/ Lowell H. Becraft, Jr. /s/ Thomas Renz
Lowell H. Becraft, Jr. Thomas Renz
Attorney for Plaintiffs Attorney for Plaintiffs
ASB 5005-F66L Ohio Bar No. 98645
403C Andrew Jackson Way 1907 W. State St. #162
Huntsville, AL 35801 Fremont, OH 43420
256-533-2535 419-351-4248
becraft@hiwaay.net renzlawllc@gmail.com
/s/ Michael A. Hamilton /s/ F. R. Jenkins
Michael A. Hamilton
F. R. Jenkins
Attorney for Plaintiffs Attorney for Plaintiffs
KY Bar No. 89471 Maine Bar No. 004667
HAMILTON & ASSOCIATES Meridian 361 International Law
1067 N. Main St, PMB 224 Group, PLLC
Nicholasville, KY 40356 97A Exchange Street, Suite 202
859-655-5455 Portland, ME 04101
michael@cornerstoneattorney.com 866-338-7087
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jenkins@meridian361.com
/s/ N. Ana Garner /s/ Joey Gilbert
N. Ana Garner Joey Gilbert
Attorney for Plaintiffs Attorney for Plaintiffs
Garner Law Firm Joey Gilbert Law
206 W. Main Street 405 Marsh Avenue
Farmington, NM 87401 Reno, Nevada 89509
505-930-5170 775-210-1501
garnerlaw@yahoo.com joey@joeygilbertlaw.com
/s/ Robert J. Gargasz
Robert J. Gargasz
Attorney for Plaintiffs
Ohio Bar ID: 0007136
1670 Cooper Foster Park Rd.
Lorain, Ohio 44053
440-960-1670
rjgargasz@gmail.com
CERTIFICATE OF SERVICE
I hereby certify that on this date, January 7, 2022, I electronically transmitted
this pleading to the Clerk of the Court using the CM/ECF system for filing, which
will send notification of such filing to all counsel for the parties in this case.
/s/ Lowell H. Becraft, Jr.
Lowell H. Becraft, Jr.
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