Case 4:21-cv-01098-O Document 36 Filed 01/21/22 Page 1 of 5 PageID 1282

UNITED STATES DISTRICT COURT

for the

Northern District of Texas

Fort Worth Division

Case No. 4:21-cv-01098-O

)
DAVID A. FOLEY )
Plaintiff )
-v- )
)
)
)
)
)
)
JOSEPH R. BIDEN, JR. )
In his official capacity as President )
of the United States only )
Defendant )
)

PLAINTIFF’S FOURTH NOTICE OF SUPPLEMENTAL AUTHORITY

Plaintiff respectfully asks that this Honorable Court take notice of an order that was issued this

morning (January 21, 2022), by United States District Judge Jeffrey Vincent Brown, wherein he

enjoined certain defendants from enforcing Executive Order 14043. See Feds for Medical

Freedom, v. Joseph R. Biden, Jr., Case No. 3:21-cv-356 (S.D. Tex.)(Doc 36).1 The enjoined

1
Available at https://www.scribd.com/document/554301960/Injunction-F4MF-v-Biden-3-21-cv-356-Judge-Brown-
Galveston-Tx-1-21-22
 Case 4:21-cv-01098-O Document 36 Filed 01/21/22 Page 2 of 5 PageID 1283

defendants include the leaders of the Office of Personnel Management, the Safer Federal

Workforce Task Force and most large federal agencies.2

However, Plaintiff’s employer, the National Labor Relations Board is not a defendant enjoined

by that order. That order does not make Plaintiff’s previous motions moot.

Plaintiff asks that this Honorable Court adopt Judge Brown’s conclusions that the President

exceeds his authority to regulate the “conduct” of his employees when he makes their

“vaccination” “status” a requirement of federal employment and that the Civil Service Reform Act

does not preclude challenges in federal district court at this stage. See Id at page 5-7.

With respect to his factual conclusions, Plaintiff would note that during a hearing which was

held on January 13, 2022, Judge Brown asked the parties whether any federal employees had yet

been discharged under the policy. See Case 3:21-cv-00356 Doc 31 Filed on 01/14/22 in TXSD

pages 3-4 of 40 (“Can you tell me: Has anyone, I guess specifically the plaintiffs in this case, but

really are y’all aware of any federal employees anywhere who have been disciplined under this

mandate yet?”) The parties asserted they were unaware of any employees who had been

discharged. Id. However, Plaintiff is aware of at least one employee who has been discharged

already, Michaela Coughlin who was fired on December 17, 2021, from her position as a civilian

2
 The named officials and their respective agencies are as follows: Pete Buttigieg, Department of Transportation; Janet
Yellen, Department of Treasury; Deb Haaland, Department of Interior; Bill Nelson, National Aeronautics And Space
Administration; Kilolo Kijakazi, Social Security Administration; Marcia Fudge, Department of Housing And Urban
Development; Denis Mcdonough, Department of Veterans Affairs; Lloyd J. Austin III, Department of Defense;
Merrick B. Garland, Department of Justice; Alejandro Mayorkas, Department of Homeland Security; Samantha
Power, United States Agency For International Development; Tom Vilsack, Department Of Agriculture; Jennifer M.
Granholm, Department of Energy; Antony Blinken, Department of State; William J. Burns, Central Intelligence
Agency; Jeffrey Zients, Safer Federal Workforce Task Force; Lesley A. Field, Matthew C. Blum, Jeffrey A. Koses,
John M. Tenaglia, Karla S. Jackson, Federal Acquisition Regulatory Council; Shalanda D. Young, Office of
Management and Budget; Robin Carnahan, General Services Administration and Safer Federal Workforce Task Force;
Kiran Ahuja, Office of Personnel Management and Safer Federal Workforce Task Force; Avril Haines, Office Of the
Director Of National Intelligence; Daniel Hokanson, National Guard Bureau; Gina M. Raimondo, Department Of
Commerce; Marty Walsh, Department Of Labor.

2 
 Case 4:21-cv-01098-O Document 36 Filed 01/21/22 Page 3 of 5 PageID 1284

operations research analyst at Eglin Airforce Base.3 Other probationary employees have likely

been similarly discharged.

With respect to ripeness, Judge Brown found that at least some of the plaintiffs have ripe

claims, while also writing in dicta that those with pending accommodation requests were “at least

arguably unripe.” Id. at page 7. In the case at bar however, Plaintiff is asserting that he has already

been harmed by being subjected to an unconstitutional and discriminatory mandate, that he has

already suffered harm under the Religious Freedom Restoration Act by being subjected to invasive

and unnecessary questioning of his faith, and that he will inevitably be subject to some type of

adverse action in the event that the NLRB offers him an accommodation.

The NLRB has now been deliberating about either the sincerity of Plaintiff’s beliefs or its

ability to accommodate them for several months. At some point, this prolonged state of uncertainty

must become a harm unto itself. But in any event, eventually it must end. At that point, the NLRB

will either reject Plaintiff’s beliefs as being insincere, refuse to offer a way to accommodate them,

or else offer Plaintiff some type of accommodation that makes his working conditions different

than that of like-situation but “fully vaccinated” peers. Harm results in either situation, especially

in light of Plaintiff’s intended response and the NLRB’s stated position.

If Plaintiff is offered an accommodation that results in him being disparately treated, he intends

to reject its terms entirely until such time that he is approved to use the hundreds of hours of sick

leave that should be at his disposal if he poses a risk of exposure of communicable disease to his

coworkers or to the public served by the NLRB.4 The NLRB has already taken the position that

3
See https://weartv.com/news/local/unfair-labor-practice-complaint-filed-against-eglin-air-force-base-over-vaccine-
mandate (last checked 1/21/2022) 
4
Plaintiff, an officer of the court so swears and declares by the signing of this legal filing that his intentions are
consistent with this description. If more is required of this Honorable Court, Plaintiff will gladly have this intention
sworn out in a separate affidavit and witnessed by a notary.

3 
 Case 4:21-cv-01098-O Document 36 Filed 01/21/22 Page 4 of 5 PageID 1285

Plaintiff is not entitled to use sick leave. It is therefore reasonable to infer imminent harm where

Plaintiff’s refusal to accept accommodation will be met with Defendant’s refusal to approve leave.

Thus, Plaintiff respectfully notifies this Honorable Court of Judge Brown’s decision and asks

that his conclusions as discussed above be taken into consideration.

Respectfully submitted this 21st day of January, 2022

By:
-------------------------------------
David A. Foley
Texas Bar No. 24122807
David.Foley.JMJ@proton.com
(682)325-8378
1542 Wayside Dr.
Keller, Texas

By: /s/
-------------------------------------
Daniel S. Flickinger
Alabama State Bar No. 9539N77F
dflick@gmail.com
205-470-6997
P.O. Box 36956
Hoover, AL 35236

4 
 Case 4:21-cv-01098-O Document 36 Filed 01/21/22 Page 5 of 5 PageID 1286

Certification of Service

I certify that I have served the above Notice of Supplemental Authority by virtue of

electronic service on all parties via the e-file system on January 21, 2022.

----------------------------
David A. Foley
Texas Bar No. 24122807
David.Foley.JMJ@proton.com
(682)325-8378
1542 Wayside Dr.
Keller, Texas