Plaintiffs’ Opposition To Defendants’ Motion To Stay

Summary

Plaintiffs' Opposition to Defendants' Motion to Stay, filed February 1, 2022 as Document 41 in Feds for Medical Freedom, et al. v. Joseph R. Biden, Jr., et al., No. 3:21-cv-356, in the U.S. District Court for the Southern District of Texas, Galveston Division. The abbreviated opposition asks the Court to deny the government's motion to stay the Court's preliminary injunction against the vaccine mandate. It argues that most of the government's merits arguments were already rejected in the preliminary injunction briefing and that the remaining ones are forfeited. It also opposes the government's request to keep processing exemption requests while the injunction is in place, citing an attached member affidavit (Ex. 40) about a religious accommodation offer. The four-page filing is signed by R. Trent McCotter of Boyden Gray & Associates and includes certificates of word count and service.

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“Plaintiffs’ Opposition To Defendants’ Motion To Stay.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/3-21-cv-00356-recap-gov-uscourts-txsd-1855108-41-0-6f60e696ff/, SHA-256 6f2da9a9d467501520b42282a080ff9f2aaae1f78e2f766e2bf6c0916b5872db.

Full text

Case 3:21-cv-00356 Document 41 Filed on 02/01/22 in TXSD Page 1 of 4

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

FEDS FOR MEDICAL FREEDOM, et al., )
)
Plaintiffs, )
)
v. ) No. 3:21-cv-356
)
JOSEPH R. BIDEN, JR., et al., )
)
Defendants. )

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STAY
Plaintiffs file this abbreviated opposition to the government’s motion to stay this

Court’s preliminary injunction. The government claims it will seek relief in the Fifth

Circuit if this Court does not rule by Thursday. Notably, the government gave itself longer

to file its own stay motion than it is giving this Court to respond to that motion. Given the

abbreviated timeline, Plaintiffs offer a brief response.

The Court should deny the government’s motion. Most of the government’s merits

arguments in support of a stay were already raised in the preliminary injunction briefing

and were properly rejected by the Court for the reasons stated in its order and in Plaintiffs’

own papers. The government’s remaining merits arguments were not raised in the

preliminary injunction briefing at all and thus are forfeited.

Regarding the scope of the injunction, the government argues that it should be

allowed to keep processing exemption requests during the pendency of the injunction. The

Court should deny that request. Feds for Medical Freedom member George O’Sullivan, a

Case 3:21-cv-00356 Document 41 Filed on 02/01/22 in TXSD Page 2 of 4

100% disabled veteran and Purple Heart recipient who now works for the CIA, submits the

attached affidavit explaining the religious “accommodation” he received when agencies

were still processing exemption requests. See Ex. 40. Mr. O’Sullivan was a Special Agent

for the Director’s Protective Staff, and he submitted a request for a religious exemption

from the vaccine mandate. In late December 2021, the agency’s Religious Accommodation

Committee found Mr. O’Sullivan’s beliefs to be strongly held and sincere, but the

“accommodation” offered was to use his own personal leave time until it expired, be put

on Leave Without Pay status, or accept a “reassignment” to a position one grade lower

(from GS-14 to GS-13) where he faces no realistic possibility of promotion and will suffer

at least a $60,000 pay cut because overtime is unavailable. Id., ¶¶ 4-6. The agency followed

up this “offer” with a letter indicating that if he declined it, he would “be considered non-

compliant with Executive Order 140343 [sic] and will be contacted about next steps in the

disciplinary process.” Id. He had to provide for his family, so he felt he had no choice but

to accept the massive pay cut and demotion. Id., ¶ 7.

There is no reason for the government to process exemptions to an illegal mandate

that is already enjoined. And there is certainly cause for concern that, if allowed to continue

“processing” exemption requests, the government would take the same kind of tactics used

with Mr. O’Sullivan, whose experience is unlikely to be unique.

Dated: February 1, 2022

Respectfully submitted,

/s/ R. Trent McCotter

Case 3:21-cv-00356 Document 41 Filed on 02/01/22 in TXSD Page 3 of 4

R. TRENT MCCOTTER (So. Dist. No. 3712529)
JONATHAN BERRY (pro hac vice)
MICHAEL BUSCHBACHER (pro hac vice)
JARED M. KELSON (pro hac vice)
BOYDEN GRAY & ASSOCIATES
801 17th St. NW, #350
Washington, DC 20006
(202) 706-5488
mccotter@boydengrayassociates.com

Case 3:21-cv-00356 Document 41 Filed on 02/01/22 in TXSD Page 4 of 4

CERTIFICATE OF WORD AND PAGE COUNTS
I hereby certify that the total number of words in this document, exclusive of those
sections designated for omission, is 421 words, as registered by Microsoft Word. I further
certify that this document, exclusive of those sections designated for omission for word
limit purposes, is 2 pages. I further certify that this document is in size 13 Times New
Roman font.
/s/ R. Trent McCotter
R. Trent McCotter
CERTIFICATE OF SERVICE
I certify that on February 1, 2022, a true and accurate copy of the foregoing
document was filed electronically (via CM/ECF) and served on all counsel of record.
/s/ R. Trent McCotter
R. Trent McCotter

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