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`
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`Plaintiffs,
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`Case No. 2:22-cv-10127
`
`
`
`Hon.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`LIVINGSTON EDUCATIONAL
`
`SERVICE AGENCY; SAGINAW
`INTERMEDIATE SCHOOL
`DISTRICT; WALLED LAKE
`CONSOLIDATED SCHOOL
`DISTRICT; and WAYNE-
`WESTLAND COMMUNITY
`SCHOOLS,
`
`
`vs.
`XAVIER BECERRA, in his official
`capacity as Secretary of Health and
`Human Services; UNITED STATES
`DEPARTMENT OF HEALTH AND
`HUMAN SERVICES; JOOYEUN
`CHANG, in her official capacity as
`Assistant Secretary and Principal
`Deputy Assistant Secretary of the
`Administration for Children and
`Families; ADMINISTRATION FOR
`CHILDREN AND FAMILIES; and
`BERNADINE FUTRELL, in her
`official capacity as the Director of the
`Office of Head Start,
`
`
`
`Amy E. Murphy (P82369)
`Robert T. Schindler (P70925)
`Rebecca L. Strauss (P64796)
`Breanne N. Gilliam (P85611)
`Brett Swearingen (P number pending)
`MILLER JOHNSON
`Counsel for Plaintiffs
`45 Ottawa Avenue SW, Suite 1100
`Grand Rapids, Michigan 49503
`
`Defendants.
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.2 Filed 01/20/22 Page 2 of 32
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`(616) 831-1700
`murphya@millerjohnson.com
`schindlerr@millerjohnson.com
`straussr@millerjohnson.com
`gilliamb@millerjohnson.com
`swearingenb@millerjohnson.com
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`VERIFIED COMPLAINT
`Plaintiffs comprise Head Start grantees and Head Start contractors
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`
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`throughout the State. They file this Complaint for declaratory judgment, injunctive
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`relief, and other relief to vindicate their rights and to preserve their ability to provide
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`necessary services to children and families who participate in Head Start programs,
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`as detailed below:
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`Introduction
` Plaintiffs bring this action to challenge Defendants’ Interim
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`1.
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`Final Rule, 86 Fed. Reg. 68,052 (Nov. 30, 2021) (to be codified at 45 C.F.R. pt.
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`1302), entitled “Vaccine and Mask Requirements To Mitigate the Spread of COVID-
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`19 in Head Start Programs” (hereinafter “Head Start Mandate” or “Mandate”).
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`2.
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`The Head Start Mandate unlawfully imposes a mandatory
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`vaccination requirement on all staff and certain contractors and volunteers. Those
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`subject to the Mandate must be fully vaccinated against COVID-19 by January 31,
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`2022.
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`3.
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`The Head Start Mandate, if enforced, will cause irreparable harm
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`to Plaintiffs and the children and families whom Head Start was created to serve.
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`2
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`Plaintiffs will lose staff, which will result in classroom and program closures. Head
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`Start children and families, a majority of whom live below the poverty line, will lose
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`access to the Head Start services that they rely on for high quality early childhood
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`education, food, and childcare.
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`Jurisdictional Allegations
`Plaintiff Livingston Educational Service Agency (“Livingston
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`4.
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`ESA”) is a Michigan intermediate school district, headquartered at 1425 W. Grand
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`River Road, Howell, Michigan 48843.
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`5.
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`Plaintiff Saginaw Intermediate School District (“Saginaw ISD”)
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`is a Michigan intermediate school district, headquartered at 3933 Barnard Road,
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`Saginaw, Michigan 48603.
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`6.
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`Plaintiff Walled Lake Consolidated School District (“Walled
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`Lake”) is a Michigan General Powers school district, headquartered at 850 Ladd
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`Road, Building D., Walled Lake, Michigan 48390.
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`7.
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`Plaintiff Wayne-Westland Community Schools (“Wayne-
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`Westland”) is a Michigan General Powers school district that provides educational
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`opportunities for students from Westland, Wayne, Canton, Dearborn Heights,
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`Inkster, and Romulus. Wayne-Westland is headquartered at 36745 Marquette,
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`Westland, Michigan 48185.
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`3
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`8.
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`Defendant Xavier Becerra is the Secretary of Health and Human
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`Services. He is being sued in his official capacity.
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`9.
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`Defendant United States Department of Health and Human
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`Services (HHS) is an executive department of the United States government.
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`10. Defendant JooYeun Chang is the acting Assistant Secretary and
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`Principal Deputy Assistant of the Administration for Children and Families. She is
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`being sued in her official capacity.
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`11. Defendant Administration for Children and Families is an
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`agency within HHS.
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`12. Defendant Bernadine Futrell is the director of the Office of Head
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`Start. She is being sued in her official capacity.
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`13. The Court has original jurisdiction under 28 U.S.C. § 1331.
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`14. This Court has authority to award the requested injunctive relief
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`under Federal Rule of Civil Procedure 65 and the requested declaratory relief under
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`28 U.S.C. §§ 2201-2202 and Federal Rule of Civil Procedure 57.
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`15. Venue in this district is proper because a substantial part of the
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`events or omissions giving rise to the claim occurred in this district. 28 U.S.C. §
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`1391(b)(2).
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`4
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`The Head Start Program
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`General Allegations
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`16. Head Start is a federal program governed by statute and created
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`“to promote the school readiness of low-income children by enhancing their
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`cognitive, social, and emotional development.” 42 U.S.C. § 9831.
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`17. Head Start provides educational, nutritional, social, health and
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`other services to low-income children and their families. 42 U.S.C. § 9831(2).
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`18. Early Head Start programs provide comprehensive child
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`development and family support services to low-income infants and toddlers under
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`the age of three and their families and to pregnant women and their families.
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`19. With limited exceptions, children are not eligible to participate
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`in Head Start programs unless their families’ incomes fall below the poverty line. 42
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`U.S.C. § 9840.
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`20. Head Start programs have strict child-to-teacher ratios that must
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`be followed in the classrooms.
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`21. A class that serves children under 36 months old is required to
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`have two teachers with no more than eight children, or three teachers with no more
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`than nine children. Each teacher in the class must have primary responsibility for no
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`more than four children. 42 C.F.R. § 1302.21(b)(2).
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`5
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`22. A class with a majority of children who are three years old must
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`have no more than 17 children with one teacher plus a teaching assistant or two
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`teachers. 42 C.F.R. § 1302.21(b)(3).
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`23. A class with a majority of children who are four and five years
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`old must have no more than 20 children with one teacher plus a teaching assistant or
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`two teachers. 42 C.F.R. § 1302.21(b)(4).
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`24. These ratio restrictions make the risk of classroom or program
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`closures significant. The loss of one teacher can mean the closure of a full classroom
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`and the forced withdrawal of the children in that classroom from the program.
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`25. A single classroom closure has a devastating impact on children
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`enrolled in the Head Start program who depend on that program for quality early
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`childhood education.
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`26. A closure of a single classroom also deprives the families of
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`enrolled children from Head Start’s services and makes it difficult for the parents of
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`enrolled children to maintain employment.
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`27. As Defendants state, “[f]amilies rely on Head Start programs to
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`provide stable and reliable early care and education services to their children, and
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`the effects of intermittent closures are significant.” 86 Fed. Reg. at 68,057.
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`6
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`The Head Start Mandate
`28. On September 9, 2021, President Joe Biden announced several
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`federal vaccine mandates, including one for the Head Start program.1
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`29. On November 30, 2021, the Secretary issued the Head Start
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`Mandate imposing a COVID-19 vaccination mandate in Head Start programs. 86
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`Fed. Reg. at 68,052.
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`30. The Mandate requires “all Head Start staff, contractors whose
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`activities involve contact with or providing direct services to children and families,
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`and volunteers working in classrooms or directly with children to be vaccinated for
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`COVID-19 by January 31, 2022.” Id. at 68,052.
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`31. The Mandate applies to “all staff who work with enrolled
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`children and families in any capacity regardless of funding source.” Id. at 68,060.
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`32. Contractors include outside service providers, bus drivers, and
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`any other contractors who contact or provide direct service to children and families.
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`33.
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`“[A]ll volunteers [must] adhere to these requirements not just
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`those who regularly volunteer.” Id. at 68,061. Even someone who volunteers on a
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`1 White House, Remarks by President Biden on Fighting the COVID-19 Pandemic
`(Sept. 9, 2021), available at https://www.whitehouse.gov/briefing-room/speeches-
`remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-
`pandemic-3/ (last visited Jan. 20, 2022) (Exhibit 1).
`7
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.8 Filed 01/20/22 Page 8 of 32
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`single occasion in a Head Start classroom is mandated by HHS to be fully vaccinated
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`against COVID-19.
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`34.
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`“Fully vaccinated,” for purposes of the Mandate, means two
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`weeks following receipt of (i) the single dose of an approved single-dose vaccine or
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`(ii) the second dose of an approved two-dose vaccine. Id. at 68,060.
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`35. The Office of Head Start has advised Head Start programs that
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`those subject to the Mandate must have their second dose in a two-dose series or
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`their first dose in a single-dose series by January 31, 2022.
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`36. There is no testing option as an alternative to the vaccine
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`requirement.
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`37.
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`Instead, a weekly testing option is available only to those (i) for
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`whom a vaccine is medically contraindicated; (ii) for whom medical necessity
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`requires a delay in vaccination; or (iii) who are entitled to an accommodation under
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`applicable Federal law. Id. at 68,061-62.
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`38. The Mandate also requires “universal masking, with some noted
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`exceptions, for all individuals two years of age and older when there are two or more
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`individuals in a vehicle owned, leased, or arranged by the Head Start program; when
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`they are indoors in a setting where Head Start services are provided; and, for those
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`not fully vaccinated, outdoors in crowded settings or during activities that involve
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`close contact with other people.” Id. at 68,053.
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`8
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`39. The masking requirement, which went into effect immediately,
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`is not the subject of this challenge.
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`40.
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`If a Head Start program does not comply with the Mandate, the
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`Secretary must take certain corrective action, including initiating proceedings to
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`terminate the program’s funding. 42 U.S.C. § 9836a(e)(1)(C).
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`41. Defendants assert that they have authority to issue the Head Start
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`Mandate under 42 U.S.C. § 9836a(a)(1)(C)-(E), which provides that “[t]he Secretary
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`shall modify, as necessary, program performance standards by regulation applicable
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`to Head Start agencies and programs under this subchapter, including—…(C)
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`administrative and financial management standards; (D) standards relating to the
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`condition and location of facilities (including indoor air quality assessment
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`standards, where appropriate) for such agencies and programs… [and] (E) such other
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`standards as the Secretary finds to be appropriate.”
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`42. The Head Start Mandate is not a modification of a program
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`performance standard.
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`43. HHS has never before mandated vaccination for Head Start staff,
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`contractors, or volunteers—and not even for children enrolled in a Head Start
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`program.
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`authority.
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`44. A vaccine mandate is simply not within the Secretary’s delegated
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`9
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`45. The Mandate is otherwise invalid under federal statutory and
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`constitutional law.
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`46. The Secretary is currently enjoined from enforcing the Head
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`Start Mandate in 25 states (but not in Michigan). See Texas v. Becerra, No. 5:21-
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`CV-300-H, 2021 WL 6198102 (N.D. Tex. Dec. 31, 2021); Louisiana v. Becerra, No.
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`3:21-CV-04370, 2022 WL 16571 (W.D. La. Jan. 1, 2022).
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`The Irreparable Harm to Plaintiffs
`47. The Mandate will cause devastating and irreparable harm to
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`Plaintiffs and to the children and families whom Head Start was created to serve.
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`48. Plaintiffs are Head Start grantees and contractors who serve
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`children and families throughout the State of Michigan.
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`49. Under a threat of terminated funding, Head Start programs are
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`forced to comply with a mandate that means terminating or losing staff and relevant
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`contractors and volunteers who are not vaccinated. This will result in a reduction of
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`Head Start services provided to qualifying children and families. Head Start
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`programs and Head Start children and families will suffer a grave and irreparable
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`harm.
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`50. Plaintiff Livingston ESA is a Head Start grant recipient and has
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`60 classroom staff members, 29 special education staff members, 24 transportation
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`10
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.11 Filed 01/20/22 Page 11 of 32
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`staff members, 14 office/leadership staff members, and 10 substitutes who all either
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`are Head Start staff or provide services to Head Start classrooms and students.
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`51. Livingston ESA currently serves 167 Head Start students, with a
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`maximum capacity of 174.
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`52. Livingston ESA provides a wide variety of essential services to
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`Head Start students. Some of the services include high quality education, meals,
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`speech therapy, occupational therapy, social work services, transportation, parent
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`engagement hours, translation services, and nutrition/dietician services. Livingston
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`ESA also provides meals to Head Start students who are quarantining at home.
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`53. Livingston ESA takes several precautionary measures to mitigate
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`the spread of COVID-19 including requiring classroom staff to wear a mask and
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`students to wear a mask while in class.
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`54.
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`If a student or staff tests positive for COVID-19, they must
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`quarantine for ten days. If there is a close contact with someone in the student’s
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`household, the student must stay at home through the quarantine period plus an
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`additional ten days of isolation.
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`55. Since December 1, 2021, 73.3% of Livingston ESA employees
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`who have tested positive for COVID-19 are vaccinated.
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`56. At
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`least 37 staff members at Livingston ESA remain
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`unvaccinated. If Livingston ESA is forced to fire unvaccinated staff members,
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`11
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.12 Filed 01/20/22 Page 12 of 32
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`multiple classroom closures will occur. For every classroom that is closed, 16
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`students would no longer be able to participate in Head Start.
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`57. Plaintiff Saginaw ISD is also a Head Start grant recipient and
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`currently has about 180 staff members and serves 859 Head Start students plus
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`another 156 Early Head Start students.
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`58.
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` Saginaw ISD provides Head Start students with high quality
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`education, special education services, occupational therapy, physical therapy, and
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`speech therapy.
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`59. About 8% of Saginaw ISD staff is unvaccinated.
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`60. Saginaw ISD enforces masking as a way to mitigate the spread
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`of COVID-19.
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`61. Losing staff, which is very likely as a result of the Head Start
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`Mandate, would force Saginaw ISD to close multiple Head Start classrooms.
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`62. Plaintiff Walled Lake is a Head Start contractor that currently
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`serves 48 Head Start students.
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`63.
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`It employs seven teachers/assistants, two office staff, seven
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`special education staff, and six custodians who provide services or come in contact
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`with Head Start classrooms and students.
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`64. Walled Lake provides special education services and daily meals
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`to Head Start students.
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`12
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.13 Filed 01/20/22 Page 13 of 32
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`65.
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`If staff members quit or are terminated because of the Head Start
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`Mandate, Walled Lake would be faced with significant harm. The loss of one special
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`education staff would result in a reallocation of service models and potentially a
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`program closure. The loss of one teacher or assistant would result in a program
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`closure.
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`66. Plaintiff Wayne-Westland is a Head Start grant recipient and
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`operates eleven Head Start classrooms that currently serve 213 students with a
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`maximum capacity of 224 students. Head Start funding pays for 32 Wayne-Westland
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`staff members. Wayne-Westland also staffs 16 Head Start contractors who serve as
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`custodians, social workers, kitchen staff, and speech teachers. An additional 26-30
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`non-Head Start funded staff members have interaction with Head Start students
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`when multiple classrooms share the gymnasium for indoor play time.
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`67. The Head Start classrooms at Wayne-Westland provide a mix of
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`full-day and half-day programming. Each full-day class is served breakfast, lunch
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`and a snack. Each half-day program is served either breakfast and lunch or lunch and
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`a snack.
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`68. Wayne-Westland also provides family service workers for each
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`family enrolled in Head Start. The family service workers help coordinate support
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`services to the whole family, not just the children, by connecting families to
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`resources and supporting them throughout the educational process.
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`13
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`69. Wayne-Westland currently uses a number of COVID-19
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`mitigation strategies to keep children, staff, and visitors safe. All toys and flat
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`surfaces are cleaned regularly. Current health department recommendations,
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`including wearing masks and practicing hand washing, are strictly followed. Wayne-
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`Westland engages in contract tracing and has procedures in place to offer virtual
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`learning if the report of a positive COVID-19 test requires a classroom to close for
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`quarantine. Additionally, staff and families engage in daily wellness checks to
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`ensure they are not sick when coming to class.
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`70. The Head Start Mandate would have devastating impacts on
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`Wayne-Westland. Every classroom must have two adults in it at all times, with a
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`ratio of about one adult for every eight students. Currently, one classroom is already
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`closed because Wayne-Westland has not been able to secure a qualified teacher.
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`71. At least four unvaccinated staff, including the cook, have
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`expressed their intention to leave their positions if required to get the vaccine, which
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`would result in at least one classroom closure and the inability to provide meals to
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`the students.
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`72. With already one classroom closed as a result of the tight labor
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`market and national teacher shortage, the threat posed by the Head Start Mandate is
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`even more imminent.
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`14
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`73. Yasmina Vinci, Executive Director of the National Head Start
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`Association (NHSA), authored a December 15, 2021 letter to Defendant Becerra
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`detailing “the potential devastating effects the new rule on vaccines and masking
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`will have on the children and families [Head Start] serves.” (Exhibit 2).
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`74. According to the letter, a survey of Head Start grantees
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`conducted by the NHSA to understand the potential impact of the Mandate showed
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`that the Mandate can lead to Head Start programs losing between 46,614 and 72,422
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`staff, or 18% to 26% of all staff, resulting in the closure of over 1,300 classrooms.
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`75. According to the letter, comments shared during a December 10,
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`2021 NHSA webinar with over 520 grantees and program administrators reveals that
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`“[v]ital elements of the Head Start model—developmentally appropriate educational
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`experiences, qualified and dedicated staff who have the children’s best interest at
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`heart, and the opportunity for parents to be involved in their child’s education—will
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`not be available for the children if classrooms are unable to operate because of the
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`imposition of the new rule.”
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`76. According to the letter, many programs are also at risk of closing
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`because the children they serve rely on the school districts for bus transportation to
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`and from the program, but transportation personnel is the least vaccinated group.
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`15
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`Causes of Action
`Count I – The Head Start Mandate Exceeds Statutory Authority
` and Is Contrary to Law
`42 U.S.C. § 9836a(a); 5 U.S.C. § 706
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`77. Plaintiffs incorporate all preceding allegations.
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`78. HHS is a creature of statute.
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`79. Defendants assert that the Head Start Mandate is statutorily
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`authorized under 42 U.S.C. § 9836a(a)(1). See 86 Fed. Reg. at 68,052.
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`80. Congress delegated to the Secretary the authority to “modify, as
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`necessary, program performance standards by regulation applicable to Head Start
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`agencies and programs under this subchapter, including—…(C) administrative and
`
`financial management standards; (D) standards relating to the condition and location
`
`of facilities (including indoor air quality assessment standards, where appropriate)
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`for such agencies and programs… [and] (E) such other standards as the Secretary
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`finds to be appropriate.” 42 U.S.C. § 9836a(a)(1)(C)-(E).
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`81. The Head Start Mandate is not a modification of a performance
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`standard.
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`82.
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`It is not related to administrative and financial management
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`standards nor is it related to standards involving the condition and location of
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`facilities.
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`16
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`83. Likewise, Defendants’ authority under subsection (E) does not
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`justify a mask and vaccination mandate because “‘such other’ standards fall under
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`the banner of ‘performance standards’ and must be defined in relation to subsections
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`(A)-(D).” Texas v. Becerra, 2021 WL 6198109, at *7.
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`84. Agency action that is found to be “in excess of statutory
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`jurisdiction, authority, or limitations, or short of statutory right” must be held
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`unlawful and set aside by the reviewing court. 5 U.S.C. § 706(2)(C).
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`85. Because Congress did not delegate to Defendants the authority
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`to impose the vaccination requirement in the Head Start Mandate, the Mandate
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`exceeds the Secretary’s statutory authority and must be held unlawful.
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`Count II – The Head Start Mandate Exceeds Statutory Authority
` and Is Contrary to Law
`42 U.S.C. § 9836a(a); 5 U.S.C. § 706
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`86. Plaintiffs incorporate all preceding allegations.
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`87. The Mandate also exceeds the statutory authority because
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`Defendants did not consult with the required experts.
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`88. Prior to modifying a performance standard, the Secretary must
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`“consult with experts in the fields of child development, early childhood education,
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`child health care, family services (including linguistically and culturally appropriate
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`services to non-English speaking children and their families), administration, and
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`17
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.18 Filed 01/20/22 Page 18 of 32
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`financial management, and with persons with experience in the operation of Head
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`Start programs.” 42 U.S.C. § 9836a(a)(2)(A).
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`89. The Secretary failed to consult with all of the required experts
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`and instead only “consulted with experts in child health, including pediatricians, a
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`pediatric infectious disease specialist, and the recommendations of the CDC and
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`FDA.” 86 Fed. Reg. at 68,054.
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`90. The Secretary must also take into consideration many factors
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`prior to modifying a performance standard including the unique challenges faced by
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`individual programs. 42 U.S.C. § 9836a(a)(2)(B)(x).
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`91.
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`Instead of considering the unique challenges faced by individual
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`programs, the Secretary issued a nationwide, one-size-fits-all mandate.
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`92. Agency action that is found to be “arbitrary, capricious, an abuse
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`of discretion, or otherwise not in accordance with law” or “in excess of statutory
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`jurisdiction, authority, or limitations, or short of statutory right” must be held
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`unlawful and set aside by the reviewing court. 5 U.S.C. § 706(2)(A),(C).
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`93. Because Defendants failed to consult with the required experts
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`and consider the unique challenges faced by individual programs, the Head Start
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`Mandate exceeds the Secretary’s statutory authority, is not in accordance with the
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`law, and must be held unlawful.
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`18
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.19 Filed 01/20/22 Page 19 of 32
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`Count III – The Head Start Mandate Exceeds Statutory Authority
` and Is Contrary to Law
`42 U.S.C. § 9836a(a); 5 U.S.C. § 706
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`94. Plaintiffs incorporate all preceding allegations.
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`95. The Secretary is required to ensure that any revisions of
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`standards will not result in the elimination of or any reduction in quality, scope, or
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`types of health, educational, parental involvement, nutritional, social, or other
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`required services provided under the standards. 42 U.S.C. § 9836a(a)(2)(C).
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`96. Enforcement of the Head Start Mandate will result in program
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`and classroom closures due to staff shortages, thus reducing, and in some instances
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`eliminating, services—the very thing that the Secretary is required to ensure does
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`not occur.
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`97. Agency action that is found to be “arbitrary, capricious, an abuse
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`of discretion, or otherwise not in accordance with law” or “in excess of statutory
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`jurisdiction, authority, or limitations, or short of statutory right” must be held
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`unlawful and set aside by the reviewing court. 5 U.S.C. § 706(2)(A),(C).
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`98. Because the Head Start Mandate will result in an elimination or
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`reduction of services, the Head Start Mandate exceeds the Secretary’s statutory
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`authority, is not in accordance with the law, and must be held unlawful.
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`19
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.20 Filed 01/20/22 Page 20 of 32
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`Count IV – The Head Start Mandate Violates the
`APA’s Notice-and-Comment Requirement
`5 U.S.C. § 553; 5 U.S.C. § 706
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`99. Plaintiffs incorporate all preceding allegations.
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`100. Under the APA, an agency must publish notice of a proposed rule
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`in the Federal Register and give the public an opportunity to comment at least thirty
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`days before the rule goes into effect. 5 U.S.C. § 553(b)-(d).
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`101. A good cause exception exists if the agency finds that the notice-
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`and-comment procedure is impracticable, unnecessary, or contrary to public interest.
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`5 U.S.C. § 553(b)(B).
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`102. The agency’s “burden to show that good cause exists is a heavy
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`one.” Texas v. Becerra, 2021 WL 6198109, at *13 (citing United States v. Cain, 583
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`F.3d 408, 420 (6th Cir. 2009)).
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`103. Defendants did not satisfy their heavy burden.
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`104. Defendants claim that they have good cause to waive the notice-
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`and-comment requirement because “a vaccine requirement for Head Start staff,
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`certain contractors, and volunteers is an essential component of the nation’s COVID-
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`19 response” and “it would be impracticable and contrary to the public interest for
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`[them] to undertake normal notice and comment procedures and to thereby delay the
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`effective date of [the Mandate]. 86 Fed. Reg. at 68059.
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`20
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`105. The Mandate was issued on November 30, 2021, which is 82
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`days after President Biden’s September 9 announcement.
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`106. The vaccination compliance deadline is set for January 31, 2022,
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`62 days after the Mandate was issued.
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`107. COVID-19 vaccines have been available for more than a year.
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`108. Defendants had more than enough time to give the public an
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`opportunity to comment before the Mandate went into effect.
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`109. If Defendants had complied with that notice-and-comment
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`procedure, they would have had to consider and address the irreparable harm
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`claimed by Plaintiffs and other Head Start programs and the risk of widespread
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`closures of Head Start classrooms that provide critical services to underprivileged
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`children and their families.
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`110. Defendants cannot satisfy their burden of showing good cause
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`for violating the APA’s notice-and-comment requirements.
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`Count V – The Head Start Mandate is Arbitrary and Capricious
`5 U.S.C. § 706(2)(A)
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`111. Plaintiffs incorporate all preceding allegations.
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`112. Agency action that is found to be “arbitrary, capricious, an abuse
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`of discretion, or otherwise not in accordance with law” must be held unlawful and
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`set aside by the reviewing court. 5 U.S.C. § 706(2)(A).
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`21
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.22 Filed 01/20/22 Page 22 of 32
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`113. Defendants have not articulated a reasonable explanation for the
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`Head Start Mandate.
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`114. Defendants acted arbitrarily and capriciously by failing to
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`consider a testing alternative to the vaccination requirement.
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`115. Defendants also acted arbitrarily and capriciously because there
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`is no evidence proving that “[e]nsuring Head Start staff are fully vaccinated
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`significantly reduces the possibility of the program playing an unwitting part in
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`community spread of SARS-CoV-2.” 86 Fed. Reg. at 68059.
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`116. The evidence shows that being fully vaccinated against COVID-
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`19 reduces the chance of hospitalization and death, but it does not prevent infection.
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`Fully vaccinated people can and do get infected with COVID-19 and are capable of
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`spreading it to others.
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`117. Defendants ignored the CDC’s recommendation to consider
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`other prevention strategies. According to the CDC, early childhood education and
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`child care programs should consider multiple factors when making decisions about
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`COVID-19 prevention strategies including the level of community transmission;
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`COVID-19 vaccination coverage in the community and among children and staff;
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`COVID-19 outbreaks or trends within the program and surrounding community;
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`22
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.23 Filed 01/20/22 Page 23 of 32
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`strain on the community’s healthcare system; and the ages of the children and the
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`feasibility of different prevention strategies.2
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`118. According to the CDC, using multiple prevention strategies is the
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`effective way to protect children and staff. Some prevention strategies include
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`promoting vaccination, consistent mask use, physical distancing, COVID-19 testing,
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`ventilation, handwashing, contact tracing, staying home when sick, cleaning, and
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`disinfecting.3
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`119. Defendants acted arbitrarily and capriciously by skipping over
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`all other prevention strategies and instead imposing mandatory vaccination.
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`120. Defendants acted arbitrarily and capriciously by creating a
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`nationwide mandate
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`instead of
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`taking
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`into account community-specific
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`considerations.
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`121. Defendants acted arbitrarily and capriciously by not considering
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`a testing option in lieu of vaccination.
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`122. Because HHS’s action in imposing the Head Start Mandate is
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`arbitrary and capricious, the Mandate must be held unlawful and set aside.
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`2 Centers for Disease Control and Prevention, COVID-19 Guidance for Operating
`Early Care and Education/Child Care Programs, (Nov. 10, 202), available at
`https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/child-
`care-guidance.html.
`3 Id.
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`Case 2:22-cv-10127-NGE-EAS ECF No. 1, PageID.24 Filed 01/20/22 Page 24 of 32
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`Count VI – The Head Start Mandate Violates the Congressional Review Act
`5 U.S.C. § 801; 5 U.S.C. § 808
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`123. Plaintiffs incorporate all preceding allegations.
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`124. The Head Start Mandate is a major rule that is subject to the
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`Congressional Review Act.
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`125. The Congressional Review Act defines a major rules as one that
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`“is likely to result in (A) an annual effect on the economy of $100,000,000 or more;
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`(B) a major increase in costs or prices for consumers, individual industries, Federal,
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`State, or local government agencies, or geographic regions; or (C) significant
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`adverse effects on competition, employment, investment, productivity, innovation,
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`or on the ability of the United States-based enterprises to compete with foreign-based
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`enterprises in domestic and export markets.” 5 U.S.C. § 804 (2)(A)-(C).
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`126. “The Office of Information and Regulatory Affairs in the Office
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`of Management and Budge