Rule 28(j) Response Letter — Feds for Medical Freedom v. Biden, No. 22-40043 (Fifth Circuit)

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A Rule 28(j) response letter dated March 21, 2023, in Feds for Medical Freedom v. Biden, No. 22-40043, addressed to Lyle W. Cayce, Clerk of the U.S. Court of Appeals for the Fifth Circuit (Document 301-1, date filed 03/21/2023). The letter states that Payne v. Biden (Ex.A) did not address Thunder Basin's strong presumption against implied preclusion. It states that DOJ conceded during en banc oral argument that "OSC is never obligated to then in turn petition the MSPB," and that DOJ declined to raise an argument about a proposed action in its en banc brief. The letter closes with /S/ R. TRENT MCCOTTER, Counsel of Record for Plaintiffs- Appellees, of Boyden Gray & Associates PLLC.

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       Case: 22-40043      Document: 301-1      Page: 1    Date Filed: 03/21/2023


                     BOYDEN GRAY & ASSOCIATES PLLC
                         801 17TH STREET, NW, SUITE 350
                              WASHINGTON, DC 20006
                                     (202) 955-0620


                                   March 21, 2023

Honorable Lyle W. Cayce
Clerk of the Court
U.S. Court of Appeals for the Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130

Re:   Rule 28(j) Response Letter in Feds for Medical Freedom v. Biden,
      No. 22-40043

Mr. Cayce:

      Payne v. Biden (Ex.A) did not address Thunder Basin’s strong
presumption against implied preclusion in a “‘situation in which
compliance is sufficiently onerous and coercive penalties [are] sufficiently
potent that a constitutionally intolerable choice’ is presented.”
F4MF.EB.Br.18 (quoting Thunder Basin).1 This Court has “already held
that government-imposed vaccine mandates impose just such a
constitutionally intolerable choice on employees by ‘threaten[ing] to
substantially burden the liberty interests of reluctant individual
recipients put to a choice between their job(s) and their jab(s),’ amounting
to ‘the loss of constitutional freedoms.’” Id. (quoting BST Holdings). This
ground independently warrants finding jurisdiction.

      On the Thunder Basin factors, D.C. Circuit precedent strongly
presumes a “special statutory scheme” precludes all claims. Ex.A.9, 14;
AFGE v. Trump, 929 F.3d 748, 755 (D.C. Cir. 2019). By contrast, Cochran
held there is “district court jurisdiction” whenever administrative
proceedings merely “threaten[] to deprive [plaintiffs] of the opportunity”
to receive judicial review, or where it is “‘possible that [a plaintiff] could
never have that opportunity’” for judicial review. F4MF.EB.Br.40


1 In Elgin, DOJ itself acknowledged this point. F4MF.EB.Br.20.
         Case: 22-40043   Document: 301-1   Page: 2   Date Filed: 03/21/2023

Page 2


(quoting Cochran). Payne contended an employee could complain to the
Office of Special Counsel (OSC) and then proceed to the Merit Systems
Protection Board (MSPB) and the Federal Circuit, Ex.A.4, 13, but during
en banc oral argument here, DOJ conceded that “OSC is never obligated
to then in turn petition the MSPB,” Recording.15:28–15:34, and an
employee has no ability to do so himself, 5 U.S.C. § 1214(b)(2)(C). This
confirms it is at least “possible” an employee would be unable to obtain
judicial review via the OSC route, which independently fails for
numerous other reasons. F4MF.EB.Br.32–34.

      Payne further argued that CSRA preclusion applies because “an
action [wa]s proposed,” Ex.A.11, but DOJ declined to raise that argument
in its en banc brief here, forfeiting it. Anyway, as Judge Barksdale
explained, there has not been a statutorily defined “proposed action.”
F4MF.EB.Br.31–32.

      Payne also erroneously held that Elgin silently overruled decades
of precedent. Ex.A.13. Elgin never once addressed a broad, pre-
enforcement challenge, let alone one attacking an ongoing and
constitutionally intolerable choice. F4MF.EB.Br.26–29.



                                        Respectfully,

                                        /S/ R. TRENT MCCOTTER

                                        Counsel of Record for Plaintiffs-
                                        Appellees

                                        BOYDEN GRAY & ASSOCIATES PLLC
                                        801 17th Street NW, Suite 350
                                        Washington, DC 20006
                                        202-706-5488
                                        mccotter@boydengrayassociates.com

cc:   All Counsel



                         BOYDEN GRAY & ASSOCIATES PLLC
              801 17TH STREET, NW, SUITE 350 ∙ WASHINGTON, DC 20006


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