Notice Of Supplemental Authority: ECF No. 53. v. Biden, No. 22-10007
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A Notice of Supplemental Authority filed July 10, 2023 as Document 54 by the plaintiffs 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. It brings to the court's attention U.S. Navy Seals 1-26 v. Biden, No. 22-10007 (5th Cir. July 6, 2023), which held an appeal concerning the military vaccine mandate moot, attached as Ex. A. The plaintiffs argue that case is distinguishable on mootness because no policies here require removal of prior adverse actions and no statute required rescission of the employee and contractor mandates. They also cite ECF No. 49 and ECF No. 53 in support of their pending motion. The four-page notice is signed by R. Trent McCotter of Boyden Gray & Associates.
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Case 3:21-cv-00356 Document 54 Filed on 07/10/23 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. )
NOTICE OF SUPPLEMENTAL AUTHORITY
Plaintiffs previously moved the Court to lift its stay in this case, grant partial
summary judgment, and issue declaratory and permanent injunctive relief. See ECF No.
49. Plaintiffs demonstrated that the merits of this case are controlled by precedential Fifth
Circuit opinions and that Defendants were not only incorrect to claim the case was moot
but had also forfeited any objection to a finding of voluntary cessation. See id. at 10-14;
ECF No. 53.
Plaintiffs bring to the Court’s attention a recent published Fifth Circuit opinion
addressing mootness in the context of a challenge to the military’s vaccine mandate. See
U.S. Navy Seals 1-26 v. Biden, No. 22-10007 (5th Cir. July 6, 2023) (Ex. A attached). The
Fifth Circuit held that the appeal of preliminary injunctions issued against the military
mandate was moot because the mandate had been withdrawn pursuant to statute and then
the Navy “went above and beyond” by promulgating additional policies that “eliminated
any remaining distinctions between vaccinated and unvaccinated personnel” and also
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Case 3:21-cv-00356 Document 54 Filed on 07/10/23 in TXSD Page 2 of 4
prohibited “‘any new adverse administrative actions’” and “require[d] removing past
adverse actions.” Id. at 2, 6, 8.
Those features distinguish that case from this one from a mootness perspective.
First, Plaintiffs are unaware of Defendants issuing policies going “above and beyond” mere
rescission of the challenged mandates here, such as requiring that all prior adverse actions
(and other actions not qualifying under the statutory definition of that term) be removed
from the files of those employees who did not comply with the illegal vaccine mandates.
The Fifth Circuit repeatedly pointed to such policies in Navy Seals as evidence of mootness.
Ex. A at 2, 6-8. Accordingly, the adverse effects of the challenged mandates remain even
after their rescission.
Second, as Plaintiffs have argued, see ECF No. 53 at 4, there is no statute that
required the Executive to rescind the challenged employee and contractor mandates here.
Navy Seals repeatedly cited the fact that Congress itself had acted by law, which was
relevant to whether the Executive’s subsequent actions might be mere litigation posturing.
Ex. A at 2, 5, 7, 11 n.7. But Congress passed no law requiring the employee and contractor
mandates to be rescinded. And in fact, the President rescinded the mandates only after
losing in Court (including the en banc Fifth Circuit), and well after announcing the end of
other COVID-related policies—making clear that Defendants were awaiting the outcome
of this litigation before deciding whether to lift the mandates. See ECF No. 49 at 10-13.
That raises the kind of gamesmanship concerns that were absent in Navy Seals.
Finally, despite concluding that the appeal in Navy Seals was moot, the Court noted
that this “does not end the litigation” and expressly declined to vacate the previously issued
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Case 3:21-cv-00356 Document 54 Filed on 07/10/23 in TXSD Page 3 of 4
preliminary injunctions, as “they no longer have any practical effect” anyway. Ex. A at 14
& n.10. That holding is analogous to Plaintiffs’ argument here that if Defendants truly had
no interest in reviving the mandates, Defendants would presumably have no objection to
the Court issuing declaratory and permanent injunctive relief against those mandates. ECF
No. 53 at 5; see also id. (citing Freedom from Religion Found., Inc. v. Abbott, 58 F.4th
824, 828 (5th Cir. 2023)).
Dated: July 10, 2023 Respectfully submitted,
/s/ R. Trent McCotter
R. TRENT MCCOTTER*
So. Dist. No. 3712529
Texas Bar No. 24134174
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
* ATTORNEY-IN-CHARGE
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Case 3:21-cv-00356 Document 54 Filed on 07/10/23 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 533 words, as registered by Microsoft Word. I further
certify that this document, exclusive of those sections designated for omission for word
limit purposes, is 14 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 July 10, 2023, 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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