Doe V Biden - Plaintiff's Response To Federal Defendants Notice of Relevant Decision

Case 2:21-cv-01568-MTL Document 154 Filed 01/21/22 Page 1 of 5
1 MARK BRNOVICH WILENCHIK & BARTNESS PC

ATTORNEY GENERAL
2 (Firm State Bar No. 14000) Jack Wilenchik (No. 029353)
3 Davis P. Bauer (No. 035529)
Joseph A. Kanefield (No. 15838) The Wilenchik & Bartness Building
4 Brunn (Beau) W. Roysden III (No. 28698) 2810 North Third Street
Drew C. Ensign (No. 25463) Phoenix, AZ 85004
5
James K. Rogers (No. 27287) Phone (602) 606-2816
6 2005 N. Central Ave [email protected]
Phoenix, AZ 85004-1592
7 Phone: (602) 542-8540 Attorney for Plaintiff Al Reble
[email protected]
8 [email protected]
[email protected] NAPIER, BAILLIE, WILSON, BACON
9 [email protected] & TALLONE, P.C.
10
Attorneys for Plaintiffs Mark Brnovich Michael Napier (No. 002603)
11 and the State of Arizona Eric R. Wilson (No. 030053)
Cassidy L. Bacon (No. 031361)
12
2525 E. Arizona Biltmore Cir, Ste C-135
13 Phoenix, Arizona 85016
Phone: 602.248.9107
14 [email protected]
15
Attorneys for Plaintiffs PLEA and United
16 Phoenix Firefighters Association Local 493
17 UNITED STATES DISTRICT COURT
18 DISTRICT OF ARIZONA
19
Mark Brnovich, in his official capacity as No. 2:21-cv-01568-MTL
20 Attorney General of Arizona; et al.,
Plaintiffs, PLAINTIFFS’ RESPONSE TO
21 FEDERAL DEFENDANTS’
v.
22 Joseph R. Biden in his official capacity as NOTICE OF RELEVANT
President of the United States; et al., DECISION
23
Defendants.
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1 NOTICE
2 The court’s decision in Feds for Medical Freedom v. Biden, No. 21-cv-356 (S.D. Tex. Jan.
3 21, 2022) (“FMF”) is notable for several reasons not stated by Federal Defendants
4 (“Defendants”) in their Notice (Doc. 153):
5 1) “The [Civil Service Reform Act] does not deprive the court of jurisdiction over these
6 claims.” Op. at 5-7
7 2) Imposition of the Employee Mandate would cause the plaintiffs to suffer irreparable
8 harm: “[T]he Fifth Circuit has already determined that the Hobson’s choice employees face
9 between ‘their job(s) and their jab(s)’ amounts to irreparable harm. Regardless of what the
10 conventional wisdom may be concerning vaccination, no legal remedy adequately protects the
11 liberty interests of employees who must choose between violating a mandate of doubtful
12 validity or consenting to an unwanted medical procedure that cannot be undone.” Id. at 9-10
13 (quoting BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021).
14 3) The Executive Order imposing the Employee Mandate was reviewable as an ultra
15 vires action, because “executive orders are reviewable outside of the APA.” Id. at 11 n.5
16 4) The President lacked statutory authority to impose the Employee Mandate. Id. at 11-
17 15.
18 5) The President similarly lacked constitutional authority to do so. Id. at 15-16.
19 6) “The government has offered no answer—no limiting principle to the reach of the
20 power they insist the President enjoys. For its part, this court will say only this: however
21 extensive that power is, the federal-worker mandate exceeds it.” Id. at 16
22 7) The balance of equities and the public interest favored the plaintiffs. Id. at 18-19.
23 This Court should therefore issue a preliminary injunction against the Employee
24 Mandate for all of the same reasons that the Feds for Medical Freedom court has.
25 Given the procedural posture in this case, it is puzzling that Defendants contend that
26 so “long as the nationwide injunctions in Georgia and FMF remain in place, however, this
27 Court’s adjudication of Counts One through Eight of Plaintiffs’ Third Amended Complaint
28 would have no practical significance.” The parties have stipulated that adjudication of
1
1 Plaintiffs’ PI motion be consolidated with trial on the merits. (See Doc. 127.) This Court’s
2 adjudication of Plaintiffs claims will have the practical significance of achieving a final
3 resolution of the parties’ claims.
4 Moreover, Defendants have previously refused to agree to even the most modest of
5 enforcement forbearance in the event that the nationwide injunction against Contractor
6 Mandate were stayed. See Doc. 119 at 1-2. They equally offer nothing in the way of restraint
7 vis-à-vis the Employee Mandate. Thus, if the Southern District of Texas’s injunction were ever
8 stayed, Defendants could instantly resume enforcing the Employee Mandate in Arizona. For
9 all of the reasons that this Court previously denied Defendants’ explicit request for a stay (Doc.
10 121), it should similarly reject Defendants’ implied contention that a stay of adjudication on
11 the Employee Mandate is now warranted.
12 Furthermore, it is telling that Defendants sought relief in the U.S. Supreme Court as to
13 the CMS Mandate, but have not done as to the Contractor Mandate to date—even though the
14 Eleventh Circuit denied their request for a stay pending appeal more than a month ago. See
15 Georgia v. President, No. 21-14269 (11th Cir. Dec. 17, 2021); see also Kentucky v. Biden, --- F.4th -
16 ---, 2022 WL 43178 (6th Cir. Jan. 5, 2022).
17 If the U.S. Solicitor General’s office truly believed that the Supreme Court’s recent
18 decisions in NFIB v. OSHA, --- S.Ct. ----, 2022 WL 120952 (Jan. 13, 2022) and Biden v. Missouri,
19 --- S.Ct. ----, 2022 WL 120950 (Jan. 13, 2022) strongly supported Defendants’ Contractor
20 Mandate arguments, it would have filed an application for a stay from the Supreme Court. As
21 is often the case in life, “silence is most eloquent.” Edmonds v. Compagnie Generale Transatlantique,
22 443 U.S. 256, 266 (1979). And here the Solicitor General’s silence in the Supreme Court is far
23 more instructive as to what NFIB v. OSHA and Biden v. Missouri mean for the Contractor
24 Mandate than the arguments that Defendants have advanced in this Court. See Doc. 152.
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1 RESPECTFULLY SUBMITTED this 21st day of January, 2022.

2
3 MARK BRNOVICH
ATTORNEY GENERAL
4
By: /s/ James K. Rogers .
5 Joseph A. Kanefield (No. 15838)
6 Brunn W. Roysden III (No. 28698)
Drew C. Ensign (No. 25463)
7 James K. Rogers (No. 27287)
8
Attorneys for Plaintiffs Mark Brnovich and the State of
9 Arizona
10 WILENCHIK & BARTNESS PC

11
By: /s/ Jack Wilenchik (with permission) _
12 Jack Wilenchik (No. 029353)
Davis P. Bauer (No. 035529)
13
14 Attorney for Plaintiff Al Reble
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16 NAPIER, BAILLIE, WILSON, BACON &
TALLONE, P.C.
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By: /s/ Michael Napier (with pernmisson) _
18 Michael Napier (No. 002603)
19 Eric R. Wilson (No. 030053)
Cassidy L. Bacon (No. 031361)
20
Attorneys for Plaintiffs PLEA and United Phoenix
21 Firefighters Association Local 493
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 21st day of January, 2021, I electronically filed the foregoing
3 with the Clerk of the Court for the United States District Court for the District of Arizona
4 using the CM/ECF filing system. Counsel for all Defendants who have appeared are registered
5
CM/ECF users and will be served by the CM/ECF system pursuant to the notice of electronic
6
filing.
7
8 /s/ James K. Rogers
9 Attorney for Plaintiffs Mark Brnovich, in his official
capacity as Attorney General of Arizona; and the State of
10 Arizona
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Case 2:21-cv-01568-MTL Document 154 Filed 01/21/22 Page 1 of 5

1 MARK BRNOVICH WILENCHIK & BARTNESS PC

1 RESPECTFULLY SUBMITTED this 21st day of January, 2022.

10 WILENCHIK & BARTNESS PC

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