Amicus Brief: Feds for Medical Freedom, et al. v. Biden, et al.

AMICUS BRIEF SUMMARY

The Rodden Plaintiffs are all civilian employees with natural immunity to Covid-19 and are faced with an order by their employer, the Federal Government, which requires each to undergo a medical procedure that is unnecessary to them and of no use to any legitimate need of their employer. The President of the United States and the agencies he directs have no power to direct their personal medical decisions, and this is particularly so when the vaccines they require are non- sterilizing, that is do not prevent transmission of Covid-19 to other employees, were at the time of filing of the Complaint (and some still are), only authorized for emergency use, and, in any event, less efficacious than natural immunity in preventing reinfection with Covid-19.

To grant such a vast and uncabined power over the health decisions of federal employees to the agencies on such vague language implicates the non-delegation doctrine and major questions doctrine and the Court should not readily read such immense power into the law. Deference to administrative agencies is particularly unwarranted in the Covid-19 context as the assertions of the agencies have so often been contrary to facts and reason.

The instant stay protects the Rodden Plaintiffs, and all similarly situated, and it should remain in place nationwide as the putative class is nationwide and the balance of harms and the law do not differ from one area of the country to the next. The nationwide injunction will conserve judicial resources and protect the entire class equally as it is now doing.

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CASE: Feds for Medical Freedom, et al. v. Biden, et al.

COURT: U.S. Court of Appeals for the Fifth Circuit

DOCUMENT: No. 22-40043

COUNSEL FOR AMICUS CURIAE: 1) John Vecchione; 2) John J. Vecchione, Gregory Dolin, Peggy Little, Mark Chenoweth

FILED: 1) February 19, 2022; 2) June 1, 2022

CASE DOCUMENTS

September 2, 2022 | Motion of James Rodden, Isaac McLaughlin, Gabriel Escoto, Michelle Ruth Morton, Waddie Burt Jones, Ryan Charles Biggers, Carole Leann Mezzacapo, Edward Bryan Surgeon, Susan Reynolds, Roy Kenneth Egbert, George Gammon, Doris Forshee, John Luff, April Hanson, Dan Parente, Steve Hanley, and the New Civil Liberties Alliance for Leave to File Brief as Amicus Curiae in Support of Appellees
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June 1, 2022 | Brief Amici Curiae of James Rodden, Isaac McLaughlin, Gabriel Escoto, Michelle Ruth Morton, Waddie Burt Jones, Ryan Charles Biggers, Carole Leann Mezzacapo, Edward Bryan Surgeon, Susan Reynolds, Roy Kenneth Egbert Ii, George Gammon, Doris Forshee, John Luff, April Hanson, Dan Parente and Steven Hanley in Support of Appellees and Re-Hearing en Banc
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February 19, 2022 | Brief Amici Curiae of James Rodden, Isaac McLaughlin, Gabriel Escoto, Michelle Ruth Morton, Waddie Burt Jones, Ryan Charles Biggers, Carole Leann Mezzacapo, Edward Bryan Surgeon, Susan Reynolds, Roy Kenneth Egbert, George Gammon, Doris Forshee, John Luff, April Hanson, Dan Parente and Steve Hanley in Support of Appellees
Click here to read the full document.

PRESS RELEASES

September 6, 2022 | NCLA Amicus Brief Asks Full Fifth Circuit to Scrap Federal Employee Vaccine Mandate

Washington, DC (September 6, 2022) – The New Civil Liberties Alliance and its clients from the class-action lawsuit, James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., have filed an amicus curiae brief in Feds for Medical Freedom v. Biden, a similar case seeking to overturn the vaccine mandate imposed on federal workers. NCLA and the Rodden plaintiffs urge the en banc Court of Appeals for the Fifth Circuit to affirm the U.S. District Court for the Southern District of Texas’s original injunction against President Biden’s unprecedented vaccine mandate. NCLA’s brief points to the Centers for Disease Control and Prevention’s (CDC) recent guidance advising all federal agencies: (1) to “pause” collecting employees’ vaccine information; and (2) to treat vaccinated and unvaccinated employees the same.

In April, a split Fifth Circuit panel vacated the nationwide injunction against the federal employee vaccine mandate, ruling that the Civil Service Reform Act of 1978 (CSRA) precludes district court review of the federal employees’ challenges. The panel’s flawed decision shields unlawful government mandates against federal employees from judicial review and would permit only case-by-case administrative adjudication of class-wide constitutional violations. Refusing to review these executive employment decisions except in the context of individual disciplinary proceedings opens the door to arbitrary and oppressive government action designed to intimidate employees with the loss of their careers. More than 10 million federal employees and contractors are currently required to surrender their healthcare autonomy as a condition of working for the federal government.

In its guidance issued on August 17, 2022, the Safer Federal Workforce Task Force instructed all federal agencies to no longer “require documentation of vaccination status from employees … [or] ask about the vaccination status of onsite contractor employees and visitors.” As the document explains, “safety protocols will not vary based on vaccination status or otherwise depend on vaccination information.” In light of this changed guidance, and the fact that the Biden Administration will no longer be “requiring, requesting, or collecting vaccination status information” about federal employees, it is inexplicable why the government continues to appeal this injunction.

The panel’s decision, if allowed to stand, would abdicate the Judiciary’s role in policing the boundary between the executive and legislative branches and thereby protecting individuals from the exercise of unlawful governmental power. The balance of harms here is clear: should the judgment below be reversed, Appellees and amici, all of whom are now protected by the injunction, will suffer an irreparable injury to their person, dignity, and reputation, and all without discernible benefit to the government. Having discarded the panel’s decision, the en banc Court should affirm the district court’s order enjoining the federal employee vaccine mandate.

NCLA released the following statement:

“This injunction has protected our clients, and the Court had jurisdiction to hear the case and enter it. We trust the Fifth Circuit will make sure that the constitutional rights of federal employees are heard and vindicated in Article III courts and not allowed to languish in piecemeal administrative proceedings.”
John J. Vecchione, Senior Litigation Counsel, NCLA

For more information visit the amicus page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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June 1, 2022 | NCLA Amicus Brief Supports Fifth Circuit En Banc Review of the Federal Employee Vaccine Mandate

Washington, DC (June 1, 2022) – The New Civil Liberties Alliance filed an amicus curiae brief Tuesday on behalf of clients it represents in the class-action lawsuit James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., who have acquired natural immunity to Covid-19. NCLA filed the brief in Feds for Medical Freedom v. Biden. It supports a petition for Fifth Circuit en banc review after a split Fifth Circuit panel vacated a nationwide injunction issued by U.S. District Judge Jeffrey Brown against the Federal Employee Vaccine Mandate.

The panel erred in ruling that the lower court lacked jurisdiction in the case due to the Civil Service Reform Act of 1978 (CSRA). The panel failed to appreciate that the CSRA is not so broad as to cover every dispute about governmental power over individuals who merely happen to be federal employees. Nothing in the CSRA’s text or structure suggests Congress meant to preclude constitutional challenges to minor disciplinary suspensions.

The President of the United States and the agencies he directs have no power to direct personal medical decisions of federal employees. This is particularly so when a mandated vaccine 1) does not prevent transmission of Covid-19 to other employees, 2) is only authorized for emergency use, and 3) is less efficacious than natural immunity in preventing Covid-19 reinfections. NCLA’s amicus brief argues that Feds for Medical Freedom merits en banc consideration, as it poses a constitutional challenge to the President’s assertion of vast power to control invasive, irreversible medical decisions of individual federal employees through mere workplace regulations.

Like employee members of Feds for Medical Freedom, amici’s constitutional (and statutory) rights to remain free from unwanted medical treatment and violation of their bodily autonomy will be infringed if the Federal Employee Vaccine Mandate remains in effect. The full Fifth Circuit bench should take up this case and decide whether the President can order over 10 million individuals—representing both federal employees and contractors—to surrender their healthcare autonomy as a condition of working for the federal government.

NCLA released the following statements:

“Our clients have been protected by the injunction issued in the same district court as in the Feds for Medical Freedom case. Judge Brown’s ruling was correct, and a liberty-limiting decision such as the panel made should be reviewed by the entire Fifth Circuit bench to ensure that it is in concert with established circuit precedent.”
John J. Vecchione, Senior Litigation Counsel, NCLA

“The panel’s decision vacating the injunction jeopardizes not only the fundamental rights of our clients, but also the important role of the courts in our system of government. For these reasons, as well as because the panel’s decision is in significant tension with prior decisions of the same court, the decision should be reviewed by the full Fifth Circuit Court of Appeals.”
Greg Dolin, Senior Litigation Counsel, NCLA

For more information visit the amicus page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

 

February 24, 2022 | Class-Action Plaintiffs in Fed. Employee Vaccine Mandate Case File Amicus Brief in Fifth Circuit Appeal

Washington, DC (February 24, 2022) – Plaintiffs from NCLA’s class-action lawsuit, James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., have submitted a brief amici curiae in a similar case seeking to overturn the Federal Employee Vaccine Mandate. Class representatives argue in the brief that the U.S. Court of Appeals for the Fifth Circuit should affirm the nationwide injunction granted by the U.S. District Court for the Southern District of Texas in Feds for Medical Freedom, et al. v. Biden, Jr., et al., currently on an expedited oral argument schedule before the Fifth Circuit. Yesterday, Southern District Judge Jeffrey Brown issued a stay in Rodden until the Fifth Circuit rules on the injunction in Feds for Medical Freedom.

The Rodden Plaintiffs are all federal civilian employees with natural immunity to Covid-19 who are facing an order by their employer to undergo a medical procedure that is unnecessary for them and of no use to any legitimate need of their employer. The President of the United States and the agencies he directs have no power to direct employees’ personal medical decisions, particularly when the vaccines being required do not prevent transmission of Covid-19 to other employees and are less efficacious than natural immunity in preventing reinfection with Covid-19. No evidence indicates that those with naturally acquired immunity pose a heightened threat to anyone.

The Rodden Plaintiff amici have an even stronger case on the balance of harms analysis than the Appellees in Feds for Medical Freedom v. Biden, as the amici all have acquired natural immunity to Covid-19. So, any government claim of greater reinfection risk or worse health effects to them is counterfactual. In addition, the current injunction protects the entire class, and its nationwide scope is reasonable given the requested class is nationwide. Their interest in the instant injunction is far stronger than virtually any group outside of the Appellees.

The Federal Government has practically attempted to create a “social credit” system where one’s job and livelihood are determined by whether one complies with its view of vaccines. But no words in the Constitution nor in the statute books create such a regime. Dr. Anthony Fauci himself has stated on numerous occasions that vaccine mandates are unwise, unnecessary, or unlawful. Similar statements by Appellants and their agents confirm that the vaccines do not prevent transmission, so the Federal Employee Vaccine Mandate can only be premised on the employer presuming to know how to take care of the employees’ health better than they do.

Appellees’ and amici’s constitutional rights to remain free from unwanted medical treatment and their bodily autonomy are infringed every minute that the Federal Employee Vaccine Mandate remains in effect. Both the Feds for Medical Freedom v. Biden and the Rodden v. Fauci lawsuits have provided ample reason why the nationwide scope of the injunction is appropriate and necessary.

NCLA released the following statement:

“This injunction is vital to protect federal workers’ rights while the merits of the case are heard by the Court. Every single time the Government has issued one of these mandates and a court has halted it, no ‘parade of horribles’ has ensued. We’ve seen the government’s assertions prove overwrought in the CDC’s eviction moratorium litigation and with OSHA’s employer vaccine mandate. The same is true a fortiori here.”
John J. Vecchione, Senior Litigation Counsel, NCLA

For more information visit the amicus page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document 

OPINION

MEDIA MENTIONS