Feds For Medical Freedom Et Al v. Joseph R.

Summary

Declaration of Jason Miller, Deputy Director for Management at the Office of Management and Budget (OMB), in Feds for Medical Freedom, et al. v. Joseph R. Biden, Jr., Civil Action 3:21-cv-00356, U.S. District Court for the Southern District of Texas, Galveston Division, filed January 28, 2022, as Document 40-1. The declaration states that harm to the Federal Government would result if the injunction remains in place, for at least three reasons, including the health and safety of the Federal workforce and the resources needed to protect it. It refers to Executive Order 14043 and states that over 20,000 federal civilian employees are hired in a typical month. It is signed /s/ Jason S. Miller and executed on the 28th day of January, 2022.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Feds For Medical Freedom Et Al v. Joseph R.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/3-21-cv-00356-recap-gov-uscourts-txsd-1855108-40-1-cd981d80f6/, SHA-256 f1e7676d5c285c4c4a6b2fd270b23aafc866892174213476c2da27019a6753c6.

Full text

Case 3:21-cv-00356 Document 40-1 Filed on 01/28/22 in TXSD Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

FEDS FOR MEDICAL FREEDOM, et al.,

Plaintiffs, Civil Action 3:21-cv-00356

JOSEPH R. BIDEN, JR., in his official
capacity, et al.,

Defendants.

DECLARATION OF JASON MILLER

I, Jason Miller, make the following declaration based on personal knowledge and

information made available to me in the course of my official duties:

1. I am the Deputy Director for Management at the Office of Management and Budget

(OMB). In this role, I coordinate Government-wide management initiatives to protect,

strengthen, and empower the Federal workforce. I am also the Chair of the President’s

Management Council, and I chair a variety of other Government-wide executive management

councils. Previously, I was the Chief Executive Officer of the Greater Washington Partnership, a
civic alliance of employers in the National Capital Region focused on issues of regional inclusive

economic growth and prosperity. I previously served in the White House as Deputy Assistant to

the President and Deputy Director of the National Economic Council—leading economic policy

development and coordination related to manufacturing and innovation, transportation and

infrastructure, energy, entrepreneurship, and Puerto Rico. Prior to that, I was a management

consultant with the Boston Consulting Group in San Francisco and with Marakon Associates in

Chicago, where I advised large organizations across industries on strategic, financial and

organizational issues. I received a B.A. from the University of Pennsylvania, an M.B.A. from

Case 3:21-cv-00356 Document 40-1 Filed on 01/28/22 in TXSD Page 2 of 8

the Kellogg School of Management at Northwestern University, and an M.P.A. from Harvard’s

Kennedy School of Government.

2. In my role as Deputy Director for Management at OMB, I regularly interact with agency

leaders from across the Federal Government, helping them work through a range of operational

issues. Through the President’s Management Council and the other Government-wide executive

management councils that I chair, agencies regularly report to OMB through my staff and me

regarding issues related to COVID-19 workplace safety. This includes issues associated with

implementation and enforcement of Executive Order 14043. In addition, I have been in contact

with executives from major employers and leading management experts about how large

employers are approaching the health and safety of their workforce, including COVID-19

vaccination requirements.

3. Based on my first-hand knowledge relating to EO 14043 and the procedures and

processes to implement it, as well as information provided to me in the course of my duties,

complying with the January 21, 2022 preliminary nationwide injunction enjoining

implementation and enforcement of Executive Order 14043 (“the injunction”) during the

pendency of the appellate process will cause significant harm to the Federal Government for at

least three reasons. First, if the injunction remains in place, it will imperil the Federal

Government’s ability to protect the health and safety of the Federal workforce. Second, the

significant additional resources required to protect the health and safety of the Federal workforce

with the injunction in place may limit the Federal Government’s ability to accomplish critical

mission needs, including supporting the American people and combatting the COVID-19 crisis.

Third, there are additional costs and harms that the Federal Government will suffer during the

pendency of the appeal.

Imperiling the Health and Safety of the Federal Workforce

4. Delaying implementation and enforcement of a vaccination requirement will imperil the

health and safety of the Federal workforce. Relying on guidance from the U.S. Centers for

Case 3:21-cv-00356 Document 40-1 Filed on 01/28/22 in TXSD Page 3 of 8

Disease Control and Prevention (CDC), I understand that the best way to avoid contracting,

spreading, and becoming seriously ill with COVID-19 is to be vaccinated. Individuals who

remain unvaccinated are at a higher risk of contracting the virus and spreading it to those around

them.

5. While most Federal civilian employees are fully vaccinated, hundreds of thousands of

them are not vaccinated. Of these unvaccinated employees, tens of thousands do not have a

pending or approved request for an exception from the vaccination requirement.

6. Further, over 20,000 federal civilian employees are hired in a typical month. The number

of unvaccinated individuals will thus increase as new hires will no longer be subject to a

vaccination requirement pursuant to the injunction.

7. In order to limit the additional risk that unvaccinated individuals pose in the workplace,

Federal agencies will need to undertake significant mitigation measures that are both more costly

and less effective at preventing the spread of COVID-19 in the workplace in the absence of a

vaccination requirement. These measures include enforcing masking and physical distancing

requirements, and requiring unvaccinated employees to submit to weekly or, if required by their

work environment, more frequent testing for infection with SARS-CoV-2, the virus that causes

COVID-19.

8. Because those measures are less successful at mitigating the spread of COVID-19 in the

absence of a vaccination requirement, it is reasonable to conclude—given the sheer size of the

Federal civilian workforce, with millions of employees—that a number of employees will

become ill with COVID-19 during the pendency of the injunction who would not have become

ill absent the injunction. It is also reasonable to conclude that a number of employees will have

close contacts with others with confirmed or probable COVID-19 infections that would not have

occurred absent the injunction.

9. These illnesses and close contacts will cause Federal employees, and unvaccinated

employees in particular, to isolate and quarantine, consistent with guidance from the CDC, to the

Case 3:21-cv-00356 Document 40-1 Filed on 01/28/22 in TXSD Page 4 of 8

detriment of their ability to perform their typical job functions. Increasing the number of

employees who will become ill with COVID-19 and who will have to isolate and miss work as a

result—or who will have to quarantine consistent with CDC guidance following close contacts,

and will therefore be unable to report to work in-person—will affect the mission capability and

critical operations of the Federal Government.

10. Moreover, given that unvaccinated people are at a higher risk for severe disease from a

COVID-19 infection, by increasing the number of unvaccinated employees in the Federal

workforce, it is reasonable to conclude that more Federal employees will suffer acute and/or

chronic health effects, including serious health effects and possibly even death.

Consuming Resources Dedicated to the Federal Government’s Mission

11. Second, because the Federal Government will be required to devote considerable

additional time and resources (which are finite) to protect the health and safety of the Federal

workforce as a result of the injunction (as explained below), agencies’ ability to execute on other

mission critical programs that agencies should be working on but cannot because they are having

to reconsider COVID-19 workplace safety will be undermined. And if the Government prevails

on appeal, those resources will not be recouped.

12. For example, Federal agencies will need to revise their workforce safety plans and

protocols, in place at each Federal agency and consistent with CDC guidance, to account for the

injunction.

13. Agencies were previously directed to plan for how and when to return an increased

number of employees in-person to the Federal workplace (“reentry”) and intended post-reentry

personnel policies and work environment. Agencies spent months drafting and submitting

workplace reentry and post-reentry plans to the Safer Federal Workforce Task Force (“Task

Force”). These plans have been reviewed by management and health experts on the Task Force,

and revised as appropriate. The reentry plans and post-reentry plans reflected the vaccination

requirement in Executive Order 14043 with the understanding that all Federal employees, other

Case 3:21-cv-00356 Document 40-1 Filed on 01/28/22 in TXSD Page 5 of 8

than those who are entitled to accommodations on medical or religious grounds, would be

vaccinated against COVID-19.

14. Now, in removing the vaccination requirement, agencies will have to expend

considerable time and money keeping their entire workforce—both those vaccinated and those

unvaccinated—safe. In particular, agencies need to account for numerous challenging issues

they would not otherwise need to address, including, for example, development of measures to

further protect vaccinated Federal employees who may be immunocompromised, live with high-

risk individuals, or are otherwise concerned about working in close proximity with unvaccinated

employees, as well as accounting for likely increases in the percentage of Federal employees

who are unvaccinated as agencies hire over time and are unable to condition employment on

vaccination.

15. Agency COVID-19 workplace safety coordination teams are thus now focused on

revising agency COVID-19 workplace safety plans and protocols, as well as revising agency

reentry and post-reentry plans and schedules, to account for an increased number of unvaccinated

employees who will be in Federal workplaces. That includes, for example, setting up expanded

COVID-19 testing programs at agencies and supporting more employees who are unable to work

in-person due to COVID-19, either exposure or illness.

16. Additionally, the many changes in Federal employee protocols triggered by needing to

account for an increased number of unvaccinated workers in Federal workplaces may require

renegotiation with Federal employee union partners. In some cases agencies have finalized

negotiations with union partners over implementation of these safety plans, approaches to agency

reentry plans, and post-reentry personnel policies and work environment. To the extent any

safety plans need to be revised, agencies may be required to expend resources restarting such

negotiations and considering with union partners how best to protect the health and safety of a

workforce that will be less vaccinated, and therefore less protected against COVID-19.

Case 3:21-cv-00356 Document 40-1 Filed on 01/28/22 in TXSD Page 6 of 8

17. What is more, if the Government prevails on appeal, agencies would not simply be able

to go back to where they are today but would need to expend yet further resources. For example,

they would need to yet again revise their workplace safety plans and, as needed, renegotiate

aspects of those plans with employee unions. Additionally, agencies have already devoted

significant resources to establishing systems for collecting and processing exception requests,

standing up teams to undertake these efforts, and beginning the actual processing of those

requests. Tens of thousands of exception requests are currently pending across the federal

government. If processing of exception requests is delayed a significant period of time,

resources that agencies have already invested will go to waste as personnel will necessarily be

shifted to other responsibilities and plans to process the current set of exception requests will

become out of date. Agencies would need to start these processes anew if the vaccination

requirement is subsequently allowed to resume, establishing new review teams and developing

new plans to reflect the then-current set of exception requests.

18. In sum, each day that the vaccination requirement for Federal employees is delayed

requires agencies that provide critical support for U.S. foreign policy, global financial systems,

American infrastructure, and the pandemic response to devote additional time and resources to

ensuring the safety of the Federal workforce above and beyond the substantial time and resources

already devoted to these efforts—time and resources that would otherwise be spent doing critical

mission function to the benefit of the American people.

Other Costs

19. There are additional related costs and harms that will be borne by the Federal

Government if the vaccination requirement remains enjoined pending appeal.

20. As noted above, without being able to enforce Executive Order 14043, agencies expect

many employees will choose to remain unvaccinated, and the percentage of Federal employees

who are unvaccinated will likely increase over time. The cost of regular screening testing of

unvaccinated employees therefore is expected to increase as a direct result of the injunction

Case 3:21-cv-00356 Document 40-1 Filed on 01/28/22 in TXSD Page 7 of 8

being in place. The Federal Government’s COVID-19 workplace safety protocols require

unvaccinated employees to submit to regular testing consistent with CDC recommendations that

call for multi-layer prevention strategies, including mask-wearing, physical distancing, and

testing, to mitigate the spread of COVID-19. Testing is a significant financial cost and, as those

testing costs increase, will require agencies to divert funding from other mission critical activities

and programs. Increased testing volumes due to an increased percentage of unvaccinated

employees will divert taxpayer dollars from other necessary uses. Based on prior estimates, for

every 1% of the Federal civilian workforce that Federal agencies need to test weekly for

COVID-19 because those individuals are not fully vaccinated, it could cost taxpayers on the

order of $1.4 million to $2.7 million per week, and $16 million to $33 million per quarter

calendar year. At the time the injunction was put in place, roughly 2% of the overall Federal

workforce covered by a vaccination requirement had neither affirmed they were fully vaccinated

nor submitted a request for or received an exception. Testing 2% of the total covered Federal

workforce weekly could cost taxpayers on the order of $11 million to $22 million each month, or

$33 million to $65 million each quarter. The longer these individuals remain unvaccinated and

employed in Federal agencies, the more taxpayers costs will increase. Should the percentage of

unvaccinated employees increase over time as new hires come aboard, as is expected while the

injunction remains in place, agency testing expenses will increase accordingly. These increased

screening testing expenses will be on top of the cost of screening testing for those employees

with an approved exception.

21. In addition, in the Federal law enforcement context, while the injunction remains in

place, employees who violated a direct order – in that they remained unvaccinated and were

either not entitled to a reasonable accommodation or did not request an accommodation – will be

allowed to continue to serve alongside those who did follow orders. I understand from federal

law enforcement agencies that allowing the continued service of those employees violating

orders from their superiors will damage good order and discipline within those vital law

Case 3:21-cv-00356 Document 40-1 Filed on 01/28/22 in TXSD Page 8 of 8

enforcement agencies, harming the collective work of those agencies’ workforces and those

agencies’ ability to meet their vital law enforcement and homeland and national security

missions.

22. Finally, the COVID-19 vaccination requirement provides comfort to the vast majority of

the Federal workforce by ensuring that their colleagues are vaccinated, protecting their own

health and safety. Removing this assurance may negatively impact morale and, in turn, the

effective day-to-day performance of the Federal workforce.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of the

United States of America that the foregoing is true and correct to the best of my knowledge.

Executed on the 28th day of January, 2022.

/s/ Jason S. Miller
Jason S. Miller
Deputy Director for Management in the Office of
Management and Budget

File and source

File: 3-21-cv-00356_RECAP_gov.uscourts.txsd.1855108.40.1.pdf
Size: 208,989 bytes
SHA-256: f1e7676d5c285c4c4a6b2fd270b23aafc866892174213476c2da27019a6753c6
Our copy: 3-21-cv-00356_RECAP_gov.uscourts.txsd.1855108.40.1.pdf
Original: No public link identified.